6th U.S. Circuit Judge Hands Down First Published Opinion in a Constitutional Case - Articles

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Posted by: Jarod Word on Jan 22, 2018
Recently appointed 6th U.S. Circuit Court of Appeals Judge John K. Bush handed down his first published opinion in a constitutional case, Peffer v. Stephens, last Thursday. The case is a civil suit challenging probable cause in the issuance of a search warrant. 
 
Jesse Peffer served as a caregiver for medical marijuana patients in Michigan, permitting him to grow a limited number of cannabis plants. When his plants produced more marijuana than he needed, Peffer sold the surplus to Tom Beemer, who ran a medical marijuana dispensary. Unbeknownst to Peffer, Beemer was a confidential informant to state and local police. 
 
One day, Beemer asked Peffer to sell him more surplus marijuana than is permitted under state law. The two agreed and police stopped the appellant as he drove to the meeting, finding more marijuana in his car than he was licensed to possess. Peffer was arrested and charged.
 
Eight months later, the local school district and child services agency received typewritten letters purporting to be from one of the police officers who arrested Peffer. These letters accused Beemer of distributing a controlled substance and becoming a confidential informant "in exchange for immunity/leniency in sentencing." Investigators determined it was most likely Peffer who authored and distributed the letters and flyers and obtained a warrant to search for and seize records relating to the activities including in electronic form.
 
To search Peffer's house for evidence, the police needed "probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." A detective submitted an affidavit to the court asserting he had probable cause to believe Peffer's residence "may contain evidence of the crime of Impersonating a Police Officer and Witness Intimidation." The detective asked permission to search Peffer's house for "computer hardware," "computer-related equipment," printers, scanners, any "electronic storage device," and Peffer's personal email.
 
After searching the appellant's house and electronics, law enforcement found nothing incriminating; prosecutors elected not to press charges. Peffer and his wife sued a detective sergeant with the Michigan State Police alleging a violation of their Fourth Amendment rights. A lower court threw out their suit, and Bush affirmed its decision in a unanimous decision for a three-judge panel.
 
Prior to his confirmation, Bush came under fire because of a history of making blog comments that have been construed as sexist and homophobic. He has been an outspoken critic of LGBT protection laws and used an offensive anti-LGBTQ slur when giving a speech to the Forum Club of Louisville. Bush co-authored an amicus brief on behalf of a conservative group opposing the admission of women into the Virginia Military Institute, asserting that VMI “does not appear to be compatible with the somewhat different developmental needs of most young women.” He has also been criticized for remarks made comparing abortion to slavery.
 
The full decision can be viewed here.