Suppressing Drugs Found During Traffic Stops

Suppressing Drugs Found During Traffic Stops – Continued

4. 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.

1. 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, the law is not so clear, and the law is changing as marijuana becomes legalized in more states. Marijuana smoke has a distinctive odor and defendants smoking in their cars are not likely to win a suppression motion in locations that permit searches where police smell it burning. Sometimes, though, the police claim they smell unburnt marijuana in the car and use that to justify a search. These claims can be challenged.

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 that 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.

1. 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.

1. 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.

1. 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.

5. 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.

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