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Unlawful entry prompts reversal of marijuana conviction

After sniffing around doors and windows, officers concluded the strong odor of marijuana was coming from the defendant’s trailer. Though they obtained a warrant, the police had unlawfully entered the defendant’s property, leading to the overturning of his conviction. However, evidence produced at trial, such as surveillance cameras and an AK-47, was sufficient to suggest defendant may have intended to distribute and a second trial would not violate double jeopardy.


Officers Matt Elliot and Aaron Gosnell responded to a call at a trailer park on the 2700 block of Ike Street in Chesapeake. When the officers got out of their vehicles, they immediately noticed a strong odor of marijuana. As the officers walked towards trailer 65, the residence of Ian Christian Carlson, the officers noticed that the smell was getting stronger.

As they had done at each of the other trailers, the officers sniffed the doors and windows. After sniffing the doors and windows, “it became obvious” to the officers that the odor was coming from Carlson’s trailer.

In response to the officers’ call, Detective Cusumano arrived approximately one hour later. The detective walked up to the main entrance of Carlson’s trailer and smelled raw marijuana emanating from the edges of the door. He did not go anywhere else on the property before he left to obtain a warrant. When the police executed the search warrant, law enforcement discovered a grow operation.

Carlson filed a pretrial motion to suppress the evidence from the trailer arguing that the officers’ initial entry onto his property was unlawful and that Detective Cusumano’s presence on the property was a direct result of the officers’ unlawful search. The trial court determined the officers had “overstepped their boundary” and that the search was unlawful. After further argument on the independent source doctrine, the trial court determined it was a “close call” but overruled the motion because “[w]e did have a warrant.” Ultimately, Carlson was convicted and sentenced.

Motion to suppress

Carlson argues that Detective Cusumano is not an independent source because his presence on the scene is a direct result of the officers’ unlawful entry. We agree there was no independent source for the evidence obtained pursuant to the warrant.

We conclude that the unlawful entry did prompt the subsequent presence of and investigation by Detective Cusumano. The information supporting probable cause was not obtained prior to the initial unlawful entry. Without the unlawful entry, the officers had no evidence connecting the marijuana odor to Carlson or his residence, nor was Carlson a subject of any investigation. It was only through the unlawful actions of the officers that the officers were able to connect the odor to a particular location.

Although Detective Cusumano went to the scene and made his own observations, he was present at this particular trailer solely because he was called there by the officers who conducted the unlawful search and told him they smelled marijuana. Thus, the unlawful search contributed directly to his presence at the scene, and his observations in the affidavit were not “wholly unconnected” to the unlawful entry.

Carlson also argues that nothing occurred to remove the taint of the original illegality. We agree. The officers’ vital role in summoning Detective Cusumano weighs against a determination that his separate observations dissipated the taint of the initial unlawful entry.

The commonwealth argues that the officers would have ultimately discovered the evidence by lawful means and thus the evidence is admissible under the inevitable discovery doctrine. Because the record does not support that conclusion, we disagree. While the officers’ testimony indicated that the officers walked around and attempted to localize the source of the marijuana smell, it also demonstrates that the officers were only able to do so by repeatedly violating the curtilage of the surrounding trailers.

Sufficiency of the evidence

In his second assignment of error, Carlson argues that the evidence was insufficient to prove that the marijuana was intended for distribution rather than for personal use.

Carlson does not dispute that he manufactured the marijuana, but argues that he did so for his own use. However Carlson possessed a large quantity of marijuana plants—more than 150. He had a large amount of cash in various denominations, a digital scale, an AK-47 and extra ammunition. In addition, police discovered a surveillance camera and a police scanner. Despite Carlson’s explanations for each piece of evidence, a fact-finder is entitled to weigh the credibility of witnesses, and the fact-finder here chose not to credit Carlson’s explanations. The evidence presented at trial was sufficient and, therefore, a second trial would not violate double jeopardy.

Reversed, vacated and remanded.

Carlson v. Commonwealth of Virginia, Record No. 2058-17-1, Feb. 12, 2019. CAV (Atlee) from Chesapeake Cir. Ct. (Lowe). Erik A. Mussoni for Appellant, A. Anne Lloyd for Appellee. VLW No. 019-7-029, 14 pp.

VLW 019-7-029

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