Winning Strategies for Suppressing Drug Evidence in Arizona Traffic Stops

Suppressing Drug Evidence Found During Traffic Stops in Arizona Continued…

Warrantless Search of Vehicle Based on Probable Cause

An automobile may be searched without a warrant if the police have probable cause to believe there is contraband or evidence of a crime in the vehicle. The search is permitted even when the vehicle’s occupants are not under arrest. Very often, these searches are for drugs. The scope of this search goes beyond the passenger compartment and includes the trunk and other parts of the vehicle.

Police may search containers in cars without a warrant when they have probable cause to believe the containers hold evidence of a crime. They can enter the car or the trunk to obtain a container, even if they don’t have probable cause to search the remainder of the car.

Challenges to these searches focus on the lack of probable cause to search at all.
Some situations are unique to car searches. These mainly occur when the police claim to smell marijuana when the vehicle is stopped; when police use drug-sniffing dogs; and in connection with traffic checkpoint searches.

Officer Alleges Odor of Marijuana – In most states where marijuana is illegal, courts hold the police have probable cause to search a vehicle when police stop the vehicle and smell marijuana. In locations where marijuana is legal, decriminalized, or available by prescription, driving while under the influence of Marijuana is illegal. However, in Arizona, where marijuana use is legal under certain conditions, the situation is not as straightforward.

Legal Marijuana and Vehicle Searches

• • Medical and Recreational Use: Since marijuana is legal for medical and recreational purposes in Arizona, the mere odor of marijuana does not automatically justify a vehicle search. However, this does not mean that police have no grounds to conduct a search if they suspect other illegal activities.
  • Burnt Marijuana: The smell of burnt marijuana can be more problematic. If a police officer detects the odor of burning marijuana during a traffic stop, they might suspect that the driver is impaired, which could justify a search and potentially lead to DUI charges.
  • Unburnt Marijuana: Claims by police that they smell unburnt marijuana can be more contentious. Since possessing marijuana is legal up to a certain amount, this alone may not provide sufficient cause for a search without additional evidence of a crime.
  • Questioning Probable Cause: Defendants can challenge the probable cause of the search, especially if the officer’s claims about smelling unburnt marijuana are dubious or if there is no other supporting evidence of illegal activity.

The defense lawyer can check the police department’s training curriculum to see whether the department exposes its trainees to the smell of burnt or unburnt marijuana as part of their training. If the training does not include a demonstration of the smell of unburnt marijuana, the lawyer can argue the prosecutor must provide some basis or a demonstration for the cop to be able to claim to detect the smell of unburnt marijuana.

The defense lawyer can view the marijuana in police evidence or the crime lab and make an independent determination if it can be smelled from the distance the officer claims. If the marijuana was in a plastic container or multiple containers, the lawyer can place the evidence in similar containers and stand as many feet away as the officer said he was when he first smelled. If the marijuana was recovered in a car trunk, the lawyer can take it to the trunk of a car and see if it can be detected from the street. If the results are favorable, the lawyer can subpoena the evidence to demonstrate to the judge the officer claims lacks credibility.

• Example: Police stop Adrian’s car for a traffic violation. The officer claims in his report and on direct examination that he smelled the odor of unburnt marijuana and searched the car. A pound of marijuana is found in the car trunk, in a sealed zip lock bag, in an airtight plastic container, inside a metal storage container.

Arguments that Adrian’s lawyer may be able to make include:
• The officer’s testimony that he could smell the odor of unburnt marijuana from outside Adrian’s car is not credible.
• The prosecutor has not offered any evidence that the officer has been trained in or can distinguish the odor of unburnt marijuana, other than the officer’s statement that he has smelled it before.
• The officer does not have any training in detecting the odor of unburnt marijuana.
• The marijuana the officer found was not in the passenger compartment, and the passenger area was not open to the trunk. It was inside three containers, including metal and two layers of plastic, thus the odor could not be detected from outside the trunk.

Dog Sniffs – Police looking for probable cause to search often rely on drug dogs to determine if there are drugs in a vehicle. Many state police and sheriff’s departments around the country have “K-9” units. Typically, the police stop a car for a traffic violation and a K-9 unit will follow up. The U.S. Supreme Court permits a dog sniff of a car during a lawful traffic stop. Law enforcement walks around the car with the dog and if the dog “alerts,” police then have probable cause to search the car.

Defense must be allowed to challenge a dog’s reliability. The defense may call witnesses or cross-examine prosecution witnesses and argue the dog’s training and certification program is insufficient or has lax standards; the dog performed poorly in the field; or the dog’s handler improperly cued. Four possible areas of challenge to a dog search are: (1) a dog’s training; (2) a dog’s ability to follow its training; (3) whether the dog appropriately signals when it detects a controlled substance; (4) an officer’s ability to properly read a dog’s alert. The first step in this process is for the defense lawyer to review the dog’s training, certification, performance, and veterinary records. An expert can be hired to assist in the process.

The expert can review the dog’s training program and advise on whether the training is lax or uses faulty standards. If the dog’s records are incomplete, an expert can testify the maintenance of accurate and complete records for both training and utilization is critical to a determination of a given dog’s accuracy. The expert can also review the dog’s veterinary records to see if any conditions could affect the dog’s accuracy. If the department does not continuously train the dog, the expert may be able to explain how dogs that aren’t continuously trained can respond to cues by their handler instead of the odor of controlled substances.

The defense lawyer can subpoena the dog handler’s training, certification, and performance records as well. The handler should have a detailed log of all his training and searches with his dog, including all search results, whether true or false positives and negatives. The defense lawyer can view any training videotape of the handler with the dog to see whether the handler is giving subtle clues to the dog to get the dog to alert. Many traffic stops are videotaped. The defense lawyer can obtain the tape and review it to see how or if the dog is alerted.

In court, the lawyer can question the handler about exactly what the dog is supposed to do when it alerts and what it did on this particular occasion. The tape can be played in court if the dog’s behavior did not conform to what the trainer said it was supposed to do.

Prolonged Detention to Wait for K-9 Unit – The length of time a person is detained while waiting for the K-9 unit can be an issue. If a law enforcement officer does not have reasonable suspicion that drugs are in the vehicle, the occupants cannot be detained any longer than is necessary to complete the traffic stop.

Example: Joe is driving on the interstate when he is stopped for speeding at 3:30p.m. The trooper asks for a valid license, Joe produces a license from another state. The trooper questions Joe about why he is passing through and Joe gives what police call “vague answers.” Because of the answers and the fact that the driver and car are from out of state, the officer decides this car may be transporting narcotics.

He calls for the K-9 unit to come to the scene. The K-9 unit arrives in 15 minutes and the trooper who works with the dog walks the dog around the car while it is on the side of the road. The dog alerts by the trunk. The police open the trunk, where they locate a suitcase containing drugs.

A lawful traffic stop cannot be extended to conduct a canine sniff for drugs in the absence of reasonable suspicion to detain the vehicle for a drug search. As soon as the officer has completed the necessary work arising from the traffic stop, he must allow the vehicle to leave and cannot make it wait until a drug dog arrives to sniff around. While police may ask for consent to search, if the driver refuses and they extend the duration of the stop to have a dog conduct a sniff search of the car, the evidence should be suppressed.

If a police officer has reasonable suspicion to search a car, the officer does not need permission. If the officer asks for permission, there is a good chance the officer does not have reasonable suspicion and is on a fishing expedition. However, police are not always prohibited from detaining a person so that a dog can search a motor vehicle. Sometimes a person’s conduct can create a reasonable suspicion of drug activity.

• Example: As Mike slowly drove his car through an area with high drug activity, he made repeated stops to talk with people standing on the curb. This conduct might give rise to a reasonable suspicion Mike was engaged in drug activity. If Mike were observed by an officer, his behavior could provide the officer with the reasonable suspicion Mike was involved in drug activity. With reasonable suspicion, the officer can detain Mike for a reasonable length of time for a K-9 unit to arrive and conduct a search.