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Winning Strategies for Suppressing Drug Evidence in Arizona Traffic Stops

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Suppressing Drug Evidence Found During Traffic Stops in Arizona

Suppressing Drug Evidence in Arizona Traffic Stops

Drug possession charges often arise from the search of a motor vehicle or its occupants.

The Constitution gives a person a right to privacy inside her car, but a person’s privacy interest in a vehicle is less than a person’s privacy interest in a home. Because motor vehicles are readily maneuverable, the courts have developed special standards for stopping and searching them.

If your constitutional rights were violated during a motor vehicle stop or subsequent search, your lawyer may ask the judge to suppress the evidence gathered by police during the stop. The prosecution cannot use evidence gained by violating the law. If the motion to suppress is granted, there’s a good chance your case will be dismissed or the prosecutor will offer a much better plea deal.

Table of Contents

I. When are Police Allowed to Stop a Vehicle?
II. When are the Police Allowedd to Search a Vehicle?
III. Who Can Challenge the Stop or Search?
IV. Common Situations

  • Stop of Vehicle and Pat-Down of Occupants
  • Limited Search of Vehicle for Weapons That Turns Up Drugs
  • Search of Vehicle Incident to Arrest of Occupants
  • Warrantless Search of Vehicle Based on Probable Cause
    • Officer Alleges Odor of Marijuana
    • Dog Sniffs
    • Prolonged Detention to Wait for K-9 Unit
    • Search at Traffic Checkpoint
  • Inventory Search Used as a Pretext to Search for Drugs

 

I. When are Police Allowed to Stop a Vehicle?

The police can stop a vehicle whenever they have a reasonable suspicion to believe the driver or passengers committed a crime. Reasonable suspicion is only one of many reasons that a valid stop can take place. Police may also stop cars for any non-criminal traffic or ordinance violation, no matter how minor. Valid reasons for stops include anything from failure to wear a seatbelt to littering, vehicle defects, and moving violations.

One of the principal reasons police stop cars on minor non-criminal traffic violations is to use the stop to search for weapons and drugs. These “pretextual” stops for minor violations are lawful. Law enforcement officers in these stops aren’t interested in giving the driver a ticket. Rather, this type of stop is a means for police to question the car’s occupants and find a lawful reason to search a car for weapons and controlled substances.

 

II. When are the Police Allowedd to Search a Vehicle?

Police do not have the authority to search a vehicle or its occupants just because the vehicle is validly stopped. Police must be able to point to specific facts that warrant the intrusion. This standard also applies to car “frisks” for officer safety.

In the absence of concerns about officer safety, reasonable suspicion to stop a car does not automatically give police the right to search the car itself. However, the police do not have to obtain a warrant, as long as they have probable cause to believe they will find contraband or evidence of a crime in the car.

 

III. Who Can Challenge the Stop or Search?

Any passenger in a vehicle can challenge the stop, as well as a search of his or her person. However, only the vehicle’s driver or owner can challenge the search of the vehicle. When a car is stopped and later searched, the passenger (who may be charged with whatever is located in the car), cannot contest the search unless he or she can challenge the vehicle stop and detention of the occupants.

 

Suppressing Drug Evidence Found During Traffic Stops in Arizona Continued below…

 

Joshua Black - Attorney

GoogleReview “I have had the pleasure of working with Mr. Divelbiss in the past and know him to be a hard working professional. His attention to detail and care for his clients set him apart from the rest!”

 

Alex

GoogleReview “⭐⭐⭐⭐⭐ 10 Stars first of all I want to say thanks to God for these great lawyers that help me in my DUI case I want to say thank you to Trevor for being 100% professional and their team of lawyers Andrea thank you Megan thank you. On the day of my court date I was really nervous but when I seen my lawyer Zach he was really professional give me good advise. I thought I was going to lose my job but Zach my lawyer help me reduce my jail sentence to less time I just want to say thank you for being so professional Zach great lawyer 100% I recommend him to anyone that needs help with their DUI cases and doesn’t matter what kind of DUI they will help you out a lot I will give them not only 10 Stars but a hundred more thank you future first criminal law I recommend them to anyone thank you.”

 

 

Dean

GoogleReview “Future First Criminal Law exceeded my expectations, on my first court appearance an old charge came up out of no where and the judge wasn’t going to let me leave. Ed got right on his phone and got it all cleared up! It is always best to have a private lawyer especially with criminal charges, the outcome will always be better and I highly recommend future first. Ed made a personal video breaking down my charges, the discovery, and my plea offer step by step. If you are questioning whether or not to get a lawyer, future first is the way to go 100%. You can’t put a price on freedom!! Thanks Ed!!!!

 

 

Taz

GoogleReview “They helped me tremendously, I had some extreme charges for my DUI and assault case, they got me the best deal I could get. 1 day jail time. Based on what I couldve spent. They have a great team, they communicate well with you an guide you thru your entire ordeal. Ed Robinson was my lawyer. I highly recommend them!!

 

 

Jesse

GoogleReview “Future First Criminal Law is an excellent firm. They helped me out with a case I had. They are friendly throughout the whole process. They are professional, thorough, and I would definitely recommend them to anybody who’s in need of their services. They also allowed me to set up payment plans which was greatly appreciated. Working with them took a lot of stress, and weight off the whole situation. I just recently had them help me with my set aside as well. Thank you Future First Criminal Law.”

 

Tyler

GoogleReview “Zach and his team were great! Right away after we spoke to Zach we felt a sense of relief from all of our worries and concerns. Being in a position to find an attorney isn’t always a fun thing to do. Thank you Zach and your entire firm for your constant updates and great communication. You never left us in the dark or wondering when we might have our questions answered. We will certainly refer your firm to anyone we know looking for your services. Thank you, for all your time and efforts for our case.”

 

Adam

GoogleReview “If I could rate Future First Crimal Law higher I would. After making the dumb mistake of getting a DUI they have been there for me every step of the way. There is nothing worse than going at this alone. You want someone in your corner during this stressful time and no one is better than Zach and his team there. They walk you through everything, keeps records of a what you need to do for the courts and sends it to them, and gets you the best case scenario sentence. Without them the consequences would’ve been much worse so very thankful to the team.”

 

Zat

GoogleReview “I am so grateful for the service I was given by all the Team of Future First Criminal Law and particularly Attorney ED Robinson, from the Day one of my appearances until the sentencing he was there encouraging me and the Defense he has taken on my behalf has made me more confident and all my stress and Depression was gone, I’m so thanks full for helping me in this terrible situation. I’ll be suggesting you to everyone in my situation. God Bless Future First Criminal Law; God Bless Attorney ED Robinson.

 

Celeste

GoogleReview “I would just like to express the life changing help and support I received from the legal team at Future First! The endless hours and resources spent by these legal professionals really made a significant impact on my life. I’m so grateful for the help of the legal system and experts whom treated my case like it was their own. I truly know that they can do the same for you! Thanks again to everyone at Future First, words can’t even begin to express my gratitude for getting me the best possible outcome! Happy holidays. I’m happy to be spending mine with friends and family while continuing to be a contributing member of society.

 

Josephine Hallam - Attorney

GoogleReview “Attorney Divelbiss is bright, hard-working, and well-versed in criminal law. His legal writing is superb, and his commitment to his clients is outstanding. He will fight for you and offer you the best defense possible. Additionally, he is a pleasure to work with. I fully endorse this lawyer.”

 

Arnie

GoogleReview “More than a year ago, I found myself in some serious legal trouble facing the possibility of a lengthy prison sentence. My fiancé, Jackie and I decided we needed a good attorney to help us maneuver through this difficult situation. We are not rich people and we were afraid that we would not be able to find a reliable and reputable firm at a price we could afford. We searched the internet and came across Future First Law Firm. When Jackie saw the high rating and many five star reviews she convinced me to give them a call. After a short conversation with Zach, we were both convinced we had found the right firm. It took over a year and several court appearances but Zach and his team stood by my side through it all and helped me get a great plea. It was a nerve-racking process, but Zach was always patient and ready to address any concerns we had. Thanks to Future First, we are excited about our plans for the future. If you find yourself in a legal mess, I highly recommend hiring Zach and his team.

 

Dustin

GoogleReview “This team are absolute rockstars!!! They resolved my legal endeavors in a timely & affordable manner. Not only did they do everything I needed…but they basically took the reins with no inconvenience to myself and were on the ball with every step. I highly recommend their expertise!

 

Ryan Renauro - Criminal Defense Attorney

GoogleReview “I can’t say enough good things about Zachary. I have had the privileged to meet him through professional channels and he has helped me out a ton with the knowledge he possesses, his experience, and his kind heart and willingness to go the extra mile to help.

 

IV. Common Situations

Stop of Vehicle and Pat-Down of Occupants

The United States Supreme Court has held that when a car is stopped, all persons in the car may be questioned, ordered out of the car, and temporarily detained. However, some states require the police to have a specific reason for ordering the occupants out of the car (e.g., a reasonable basis to believe their safety or the occupants’ safety is at risk, or a crime has been committed).

While the police may order the occupants of the car to get out, they cannot frisk everyone in a traffic stop without reasonable suspicion these persons are armed.

Example: Police stopped a car at 8:45 p.m. on a residential side street because the license plate was not properly illuminated. The officer approached the driver’s side of the car. Kate, the driver, handed him her license. John was the sole passenger. Kate and John were ordered out of the car and patted down for the “officer’s safety.” The officer felt a bulge in John’s pocket and removed a plastic baggie containing a white chunky substance, which was later determined to be crack cocaine.

Most police departments have squad car cameras recording everything during a traffic stop. To attack the legality of the stop and search, John’s lawyer may begin by reviewing the video. Often what you see on the squad video will differ from the officer’s report and testimony. The video may reveal the license plate was illuminated and thus, the stop was illegal. If the stop was illegal, the evidence acquired during it should be suppressed.

When cross-examining the officer, the lawyer can highlight the lack of crime in the area, which undercuts the officer’s claim that he needed to frisk John for his safety. Further questioning can confirm that Kate and John were cooperative and did not act like dangerous persons. Finally, the lawyer can point out no evidence links the cars’ occupants to drugs, guns or anything else that justified a pat-down.

John’s lawyer can argue to the judge that (1) the police had no specific facts from which they could form a reasonable suspicion to believe that Kate or John was armed (i.e., there was no crime in progress; this is not a high-crime neighborhood); (2) the pat-down was an unwarranted intrusion as there was no reason to do anything more than write out a ticket; and (3) the evidence should be suppressed.

Suppose the stop was in a high crime area. When a car is stopped in a high-crime area or late at night, the officer may testify he always conducts a pat-down when he makes a traffic stop because of the inherent danger of the situation. John’s lawyer can question the officer on the lack of reports of specific crimes in the vicinity and the officer’s failure to observe criminal conduct by Kate or John. The lawyer can further emphasize the police did not know anything about John before the stop was made and it is not illegal to travel after dark.

 

Limited Search of Vehicle for Weapons That Turns Up Drugs

A police officer can search a vehicle for weapons when he has reasonable suspicion to believe the vehicle may contain weapons potentially dangerous to him that can be accessed by an occupant. The passenger compartment is the area that can be searched.

Many times police will stop a car for a minor violation as an excuse to search the occupants or the car for guns and drugs. Some officers view the slightest movement by an occupant as an attempt to conceal a weapon and then claim there is a reason to search the car.

Often there are no weapons, but police find drugs and the occupants are charged with drug crimes. Drivers and passengers who are traveling in minority communities, communities deemed to be “high crime.” and college campus areas are at greater risk of being subjected to this police practice.

Example: The police stop a car for an unsafe lane change. As they pull up behind the car, the officers can see into the car because their headlights are shining into it. The officers immediately order Mateo, the driver, out of the car and pat him down finding nothing. They then order the two passengers, Angel and Anna, out of the car, pat them down, and again find nothing. After the pat-down, they conduct a search of the car for the “officers’ safety.” During the search, they find a bag of marijuana under the driver’s seat. Mateo is charged with possession.

While a passenger lacks standing to challenge the search (unless he owns the car), the driver can challenge this search.

When questioning the officer, Mateo’s lawyer wants to demonstrate the police did not see any specific actions by the car’s occupants leading them to believe any of them had a weapon. The lawyer will further emphasize the officers had a very good view into the car with their headlights.

 

Search of Vehicle Incident to Arrest of Occupants

Police may search the passenger compartment of a car and all containers inside the compartment incident to the arrest of the car’s occupants. However, this search is permitted only if the arrested person is within reaching distance of the car or police reasonably believe the car contains evidence related to the offense for which the person was arrested.

The vehicle cannot be searched when the driver or passenger is handcuffed and is not in an area where he or she can gain access to a weapon or destructible evidence unless the offense of the arrest provides a basis for the search. In practice, this means when a vehicle occupant is arrested for criminal activity or drugs, courts will still allow a search of the car’s passenger compartment, even after the arrestee is handcuffed and placed in a police squad. However, evidence can still be suppressed when the car’s occupant is taken into custody for traffic violations. It is also impermissible to search a car when a person is issued a traffic citation and not placed under arrest.

Example: A police officer stops a car for driving with a loud muffler. Evan, the driver, has a revoked license so the officer is going to arrest him. However, the officer does not place Evan under arrest. Instead, the officer tells him to wait at the curb while he searches the car. The officer rummages through the car and inside the glove compartment finds a bag of marijuana.

A common variation on this situation occurs when the officer tells the driver he is under arrest and places him, uncuffed, in the squad car.

When cross-examining the officer, Evan’s lawyer can focus on the fact that standard police practice is to immediately arrest and cuff a suspect; that police are always watching out for their safety; and that the tactics used here were just a ploy to conduct an unlawful search.

If the department has a policy that an officer should immediately handcuff someone who has been arrested, the officer can be pressed to admit he violated this policy when he chose to not secure someone he arrested so he could justify searching the car.

Evan’s lawyer can argue to the court that:

• The search of the car was not due to any reasonable suspicion that Evan was armed.
• The search of the car was not related to the loud muffler or the revoked license.
• The officer cannot play games to justify a search incident to arrest by deliberately not handcuffing the arrestee.
• The officer did not follow department policy to immediately handcuff an arrestee.
• An officer cannot search a car when he issues a traffic citation and does not place a driver under arrest.

So, no matter which way this officer’s actions are analyzed – whether he claimed Evan was under arrest or not — this was an illegal search, and the evidence must be suppressed.

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Suppressing Drug Evidence Found During Traffic Stops in Arizona Continued below…

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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.

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Search at Traffic Checkpoint – Traffic checkpoints set up to search for evidence of a crime, such as drugs or guns, are not permitted under the Fourth Amendment. However, roadblocks set up to curb drunk or unlicensed driving are constitutionally permissible, if the police stop all drivers who pass through the checkpoint.

The roadblock must have been created by law enforcement management and be under their control; individual officers cannot strike out on their own and set up roadblocks. The sole permissible purpose of the stop is to determine if the drivers are properly licensed or under the influence of alcohol. The police cannot use a checkpoint as an opportunity to check cars for drugs, guns, or other evidence of a crime.

The U.S. Supreme Court also has permitted law enforcement to stop and question persons about whether they witnessed a crime in the area. These stops must be brief and limited to this purpose.

Example: Police set up roadblocks to check that drivers have valid licenses and are not intoxicated. The roadblock is set up by department supervisors who issue written guidelines for officers. The guidelines allow police to confirm that drivers are validly licensed and not under the influence of alcohol; the stop is to be brief; and if the driver does not smell of alcohol or have other obvious signs of intoxication, she is permitted to leave. The average duration of the stops is supposed to be twenty-to-thirty seconds.

A police officer working at the roadblock stops Sandy who has a valid license and shows no apparent signs of intoxication under the guidelines. The officer believes Sandy is under the influence of drugs because her eyes are bloodshot, so he asks for registration and proof of car insurance. When Sandy goes into the glove compartment, the officer sees a pill bottle. He seizes it, opens it, and finds drugs.

Sandy’s lawyer can challenge the search on the grounds that (1) the police acted outside the scope of their lawful authority at the checkpoint and (2) the roadblock was used as a pretext to search for drugs or other evidence of a crime.

Sandy’s lawyer will want to check state statutes and codes for rules about traffic checkpoints. The lawyer may also subpoena any written memos, operating procedures, or guidelines the law enforcement department issued regarding the roadblock to determine if the officer complied with the department’s standards. When cross-examining the officer, Sandy’s lawyer can bring out the officer’s failure to follow the rules set up for the roadblock.

Sandy’s lawyer can argue to the judge that the evidence should be suppressed because:

  • The officer did not follow the guidelines for the roadblock, which permitted the officer to ask for a driver’s license and make a limited determination of intoxication only. Once the officer determined that Sandy had a valid driver’s license and showed no sign of intoxication, she should have been allowed to leave.
  • The officer unlawfully prolonged the detention without reasonable suspicion to believe Sandy was involved in any criminal activity; simply having reddened eyes is not a reason to assume someone is committing a crime.
  • The officer asked Sandy for her registration and proof of insurance, which was not permitted under the law or the roadblock guidelines.
  • The stop was a pretext to search a car for evidence of a crime even though roadblocks may not be used for this purpose.
  • The officer asked for documents that normally are kept hidden from view. The pill bottle in the glove box was not in plain view. The officer seized the pill bottle and illegally opened it.

Inventory Search Used as a Pretext to Search for Drugs

Police may inventory the contents of impounded vehicles according to standard law enforcement department policies. An inventory search cannot be motivated by the desire to search for evidence; it must be disinterested cataloging of a car’s contents.

The rationale for an inventory search is when police have taken custody of a vehicle, they have a caretaking function, and the search is necessary to carry out that function.

Police may search closed containers as part of an inventory search when it is consistent with standardized police policy. However, when police open and inventory the contents of some containers but not others, their actions are inconsistent with the caretaking purpose of an inventory search. This may be proof that inventory search is just a pretext to conduct an impermissible search for evidence. Breaking into a trunk or glove compartment causing damage may exceed what is permissible.

Example: The police stop a car for speeding. Will, the driver, pulls over to the curb and stops the car in a legal parking space. During the stop, the police discover Will does not have a valid license and they arrest him. They ask for consent to search the car, but Will refuses. The police search the car anyway and find drugs in a backpack in the trunk. Their reports indicate the search was performed according to the local department’s inventory search policy. The police department has a written policy regarding inventory searches that states an arrestee’s car can be towed for safekeeping to the police impound lot and once there, the contents of the vehicle should be inventoried.

The inventory search of Will’s car may have been a pretext to search for evidence of a crime. To test the legality of the search, Will’s lawyer will compare the police department’s written policies and procedures with what actually happened. In Will’s case, the police did not follow their written policy which calls for the car to be towed.

When police do impound a car before conducting the inventory search, the true motive for the search can be an issue. Why was the car stopped? Were the police in the area and stopping cars to obtain access to search cars? The police officer’s word cannot be taken at face value. Often police will claim something is a policy and cross-examination will reveal they really have no idea what the policy is.

The officer can also be questioned about how the search was conducted. Was a standard inventory sheet used? Was the driver or vehicle owner provided a copy or asked to sign it, so he acknowledged what was found in the car? If not, Will’s lawyer can argue “a disinterested cataloging of a car’s contents” did not occur.

A final issue may be whether the vehicle needed to be impounded or whether less intrusive measures to protect it would have been sufficient. Courts in some states have concluded that a vehicle cannot be legally impounded when less intrusive measures are available or when the owner wants it towed to his or her home or left where it is if located somewhere safe.

If you have any questions about “Suppressing Drug Evidence in Arizona Traffic Stops,” don’t hesitate to reach out. Contact Us Today to get the expert legal advice you need and protect your rights.

 

 

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