suspicion – Techdirt (original) (raw)

Stories filed under: "suspicion"

Successful Evidence Suppression Motion Shows Cops Think Pretty Much Everything Is ‘Suspicious’

from the being-human-is-reasonably-suspicious dept

Law enforcement officers really enjoy performing warrantless searches. To get to that point, however, they need to be in certain places (airports, roadsides) and have one certain thing: “reasonable suspicion.” But what seems “reasonable” to someone like you or me is nowhere near what seems “reasonable” to a law enforcement officer.

For instance, behold the many contradictions contained in the list law enforcement and the TSA use to determine which passengers are “suspicious:”

Add to that the list of things law enforcement has claimed (successfully or otherwise) is suspicious behavior:

Those are only a small sampling of the many, many things cops have called “reasonably suspicious.” Thanks to recent decision finding in favor of a criminal defendant, we have another list to add to these lists of “reasonably suspicious” behavior.

In December 2021, Michael Contreras was pulled over by Virginia State Trooper Joseph Miller. One thing led to another as pretextual stops often do. It culminated in a warrantless search of the car, during which 17 kilos of cocaine were discovered. But to get to that point, the trooper had to ask a lot of questions unrelated to the stop, delay it long enough to get a drug dog to the scene (the dog did not alert, by the way) and finally use a handy checklist to decide things were reasonably suspicious enough to engage in a warrantless search.

And here’s where it gets really ridiculous. The checklist used by Trooper Joseph Miller was admitted into evidence. Here it is in all of its glory, as presented in the federal court decision [PDF]:

If you can’t see the image (or read the fine print), you’re in luck! Criminal defense lawyer John Wesley Hall has typed up the full list for his post on this decision at his website, FourthAmendment.com.

INDICATORS ☐ Abnormal Sweating ☐ Air Fresheners (Multiple) ☐ Anomalies (Explain) ☐ Anxiety ☐ Arm/Hand Gestures ☐ Attire (Inappropriate) ☐ Audible/Deep Sighs ☒ Avoidance ☐ Bite/Chew/Lick Lips ☒ Body Posture (Explain) ☐ Chain Smoking ☒ Conflicting Stories ☒ Cost Effective ☐ Currency ☐ Deliberate Speech ☐ Difficulty Swallowing ☐ Disassociate from Vehicle ☒ Disclaimers (FOP, Etc) ☒ Evasiveness ☒ Excessive Nervousness ☐ Eye Contact ☐ Facial Expressions ☐ Fake Smile/laughter ☒ Fast Food/Snacks Excessive ☒ Fatigued ☒ Feigned Memory Loss ☐ Hand Written Directions ☐ Heavy / Holding Breath ☐ Hesitation (Itinerary, Etc.) ☐ High Mileage ☐ Implausible Itinerary ☐ Single Key ☒ Luggage (Disproportionate) ☐ Map/GPS ☒ Multiple Cell Phones ☐ New Paint ☒ Obvious Shaking ☒ Older Car Recently Registered ☒ Overtly Cooperative ☐ Owner Not Present ☐ Pulsating Artery ☒ Quick Turn Around in Travel ☐ Rental Vehicle ☐ Rigid/Frozen ☐ Skips Around Abruptly ☒ Source city/state ☐ Uses qualifiers ☐ Voice Inflection/Tone ☐ Weapons ☐ Yawns Continuously ☐ BLOC/CCH/EPIC/NADDI5 ☐ Other (Note in Narrative)

A whole bunch of regular human behavior being classified as indicators of suspicion. “High mileage” and “older car recently registered” turn plenty of legit used car purchases into blank checks for warrantless searches. Just an insane list. “Arm/hand gestures.” “Currency.” “Map/GPS” is somehow suspicious. But so is “hand written directions.” I guess every driver is just supposed to know exactly where their destination is at all times.

The court doesn’t think much of this list. It points out a bunch of these so-called “indicators” of suspicion have previously been rejected by precedential decisions. (The 4th Circuit Appeals Court’s Bowman decision is specifically cited.)

As the court points out, Trooper Miller freely admits he illegally extended the stop in violation of the Supreme Court’s Rodriguez ruling. (Emphasis in the original.)

Trooper Miller’s traffic infraction investigation was not in any way prolonged to investigate suspicion of criminal activity unrelated to the traffic stop until the point in time when Trooper Miller told Alvarado that it was:

[N]ow you’re gonna be sitting here a little bit longer than what you probably need to be, okay, because a narcotic K9 is going to come and run around the pickup, alright .

The only way to salvage this Fourth Amendment violation was to have observed enough suspicious behavior to justify the extension of the stop. Here’s what the government claimed justified this incursion on Contreras’ rights:

In its supplemental brief filed after the hearing, the government clarified its position that seven factors, taken together, gave rise to reasonable suspicion that criminal activity— specifically drug trafficking was afoot: (1) the presence of the vacuum-sealer packaging material; (2) Contreras’s and Alvarado’s nervousness; (3) items in the truck indicating that they had traveled a long distance without breaks; (4) Contreras’s and Alvarado’s perceived suspicious and inconsistent accounts of recent travel; (5) the high mileage on the truck’s odometer; (6) the fact that the couple had traveled to Houston, a “source location” for illegal drugs; and (7) the presence of a “Thin Blue Line” decal on the rear window.

The court notes the “vacuum-sealer packaging” could not be part of the reasonable suspicion matrix because it was not discovered until after the search of the truck had commenced. It points to the ridiculous checklist above and the attached narrative from the trooper as indicative of the officer trying to work his way from his illegal search back into the good graces of the Fourth Amendment.

The trooper only noted the vacuum sealer at the end of the traffic stop narrative where he listed everything else he had discovered. He never mentioned the sealer to the other officers who arrived at the scene prior to the search. Considering its after-the-fact appearance in the officer’s narrative, the court says this suspected contraband cannot be used as part of the reasonable suspicion matrix.

The rest of the matrix is garbage, too.

_Here, as in Bowman and DiGiovanni, the video does not reveal Alvarado’s level of nervousness to be greater than can be expected of a young person in otherwise similar circumstances, and her nervousness does not appear to increase (as the driver’s did in Mason). And the avoidance of eye contact or staring straight ahead is also not persuasive in and of itself since it can be “just as likely to be a show of respect and an attempt to avoid confrontation,” and in other cases the government has argued “just the reverse: that it is suspicious when an individual looks or stares back at officers._”

The court dispenses of these claims as well, singling out the trooper’s asinine checklist.

There was also no testimony from Trooper Miller about Interstate 81 being a known route for drug traffickers and, as explained below, Contreras’s and Alvarado’s travel stories were not entirely inconsistent. Regarding the government’s supplemental argument that this was indicative of a “turnaround trip,” Contreras told Trooper Miller that the couple had been in Austin visiting family, and that they had been there for a week (see ROI at 2; Video 8:58–9:09). There is no indication that Trooper Miller factored the drive time and distance into his determination that their travel stories were inconsistent.

[…]

Although Trooper Miller checked the “Quick Turnaround in Travel” box on his Contact Report Form B, the court is not persuaded by this tick mark for two reasons. First, not all the boxes on Form B were properly checked. For example, the “older car recently registered” box was erroneously checked. Second, Trooper Miller did not check all the boxes that he arguably could have.

As for the “source city” bullshit the government hastily added at the last minute, the court has this to say about turning all interstate travel into possible drug trafficking:

Trooper Miller also testified that Houston is a “source location” for narcotics and criminal activity, without providing a specific basis for that belief. Whatever the basis of Trooper Miller’s belief presumably his training and experience—the court simply cannot accept this statement at face value. Today, most major metropolitan areas of the United States are source cities for illegal drugs. Houston is no more deserving of this appellation than any other large city, and interstate travel from Houston or Austin is no more indicative of drug trafficking than travel from Los Angeles, New York, Miami, Atlanta, Chicago, Denver, or Detroit

Wrapping things up, the court discusses the supposedly suspicious “Thin Blue Line” decal — one sported by plenty of officers’ personal vehicles as well as by those who family members are officers or otherwise have decided to cast their lot with the people that, um, apparently find these decals “suspicious.”

Finally, the government argues that the presence of a pro-police decal on the truck’s back window was suspicious. Although Trooper Miller testified that drug traffickers also use military stickers or religious memorabilia as “disclaimers,” the court is not convinced. If the truck had a “Legalize It” sticker, would that have been an indicator as well? Just as with the eye-contact-as-nervousness indicator, the government cannot have a factor cut in its favor any way it is sliced. The court gives the presence of the decal no weight on its own. It is “entirely consistent with innocent travel” such that it does not give rise to reasonable suspicion.

Trooper Miller may be a great officer with a keen mind. Even the court expresses some admiration for him. But being good at the job also means following the rules. He didn’t do that here. And that just cost him his drug case.

Trooper Miller is an accomplished police officer with 19 years of total law-enforcement experience, 15 years of drug interdiction assignments, and tens of thousands of vehicle stops. Contreras rightly concedes that this trooper’s hunch is well tuned. And Trooper Miller was inarguably correct; someone in that truck was trafficking a large quantity of cocaine. But without more, a hunch—however well-tuned and correct it may ultimately turn out to be—is not sufficient under the Fourth Amendment to prolong a vehicle stop to investigate criminal activity.

If you want to keep your wins, you have to play fair. What you can’t do is treat the Fourth Amendment as something only available to people you don’t suspect (correctly or incorrectly) of wrongdoing, no matter how long and internally contradictory your “reasonable suspicion” checklist is.

Filed Under: 4th amendment, joseph miller, michael contreras, pretextual stops, suspicion, warrants

Appeals Court Reminds Cop That Calling Normal Human Behavior Suspicious Is No Way To Secure A Conviction

from the being-a-human-being-isn't-evidence-of-wrongdoing dept

Since cops are trained to view everything as suspicious, they tend to believe everything is suspicious. The list of things considered to be suspicious often contradicts other things on the list of things considered suspicious. That should be considered suspicious, but somehow cops never think it is.

Even if they don’t believe everything is suspicious, they swear that pretty much everything is while testifying in court. Because if you don’t claim normal human activity is “reasonably suspicious,” it makes it very difficult to salvage unconstitutional stops and searches.

The cop involved in this gun possession case hoped to convince a court a driver’s very normal reaction was inherently suspicious, but the Fourth Circuit Court of Appeals is far from convinced. Overturning the lower court’s dismissal of the arrestee’s motion to suppress, the Appeals Court says it doesn’t see the things the cop saw that he felt justified (illegally) extending the stop and performing a search of the car. (via Short Circuit)

Here’s how the Appeals Court describes [PDF] what it saw, which is not what Officer Helms claimed.

When Officer Helms turned on his lights, Phillips’s vehicle was essentially parallel with a turn lane that led to a well-lit parking lot. Phillips hit her brakes just four seconds after Officer Helms’s lights came on and activated her blinker three seconds after hitting her brakes. Phillips came to a complete stop seventeen seconds after Officer Helms turned his lights on.

After Phillips came to a stop, Officer Helms approached the driver’s side of the vehicle. His body camera captured his exchange with Phillips. Shortly after Officer Helms approached Phillips’s vehicle, she began searching for her license. While Officer Helms testified that Phillips’s hands were shaking during the encounter, her hands did not appear to be shaking while she was handing Officer Helms her license or her insurance information. The next time that Phillips’s hands were in view, it still was not evident that she was shaking.

The first part — the time it took for Phillips to stop — is noted because it contradicts the lower court’s findings. The second part is essential because the officer’s own body cam contradicts what he claimed he observed.

Officer Helms continued to insist Phillips was shaking, an observation (one not based on actual observation, mind you) he made to the other officer arriving on the scene. And then, with the ticket already printed, he decided to extend the stop.

When a backup officer arrived, Officer Helms told him that he was suspicious of the vehicle’s occupants because Phillips was shaking and tapping on the car door. At approximately the same time, Officer Helms printed Phillips’s warning ticket. Soon thereafter, Officer Helms approached Phillips’s vehicle, asked Phillips to exit the vehicle, and told her he would be leading his canine around the vehicle to sniff for illegal drugs. After the canine indicated that there were drugs in the vehicle, officers performed a full search. During the search, they located two handguns in Miller’s backpack.

Teresa Miller was only a passenger in the car. She was riding in the backseat. Her backpack was searched because… well, apparently the officer felt this search was justified because of the dog’s alert on the car. But there’s nothing on the record that says the officer asked the dog to sniff the backpack on its own. Either way, the search was performed, contraband was found, and Miller was charged.

The lower court rejected her suppression attempt. It said it couldn’t tell from the footage whether or not the driver was shaking. It also said Phillips was “slow to pull over” and passed a couple of well-lit streets before pulling over on a “dimly-lit section of Route 7.” For some reason, the district court also added that Route 7 was a “known drug corridor,” something that’s completely irrelevant because the car wasn’t travelling on the drug corridor and there were no drugs discovered in the car.

The Appeals Court says the lower court is wrong.

Here, the video evidence from Officer Helms’s dashboard camera shows that Phillips stopped within a reasonable amount of time. Phillips could not have pulled into the well-lit parking lot that Officer Helms intended her to because she was parallel with the entrance when Officer Helms activated his lights. And contrary to the district court’s findings, the video shows Phillips did not pass any other area, well-lit or otherwise, where she could have safely stopped. There were no earlier exits, and the road did not have a shoulder. Next, Phillips began braking just four seconds after Officer Helms turned his lights on, indicating that she was in the process of stopping. Four seconds is a reasonable time for a person to react and determine that an officer intends to pull her over. While it ultimately took Phillips thirteen seconds to come to a complete stop after first engaging her brakes, she stopped at the first available place on the road where she could safely do so. Under these facts, she came to a stop in a reasonable amount of time.

It’s also wrong about the supposed “shaking” Officer Helms claimed to observe.

While the district court is correct that the video does not show Phillips’s hands the entire time, the video clarity is quite good, and shows that her hands were not shaking. Moreover, her hands can be seen both at the beginning of the encounter and at the end, and the video footage shows that her demeanor did not change throughout the conversation. Thus, the district court clearly erred by finding that Phillips was shaking during the traffic stop.

Then there’s the “tapping” Officer Helms told another officer he believed was indicative of the driver’s nervousness while weaving together his reasonable suspicion tapestry. It’s indicative of nothing, says the Fourth Circuit.

The only (arguably) nervous behavior the Government can point to after Officer Helms’s statement is Phillips tapping her fingers on the car door. But tapping is not an indicator of excessive or sustained nervousness because it is completely consistent with law abiding behavior. Although fidgeting may certainly be a sign of nervousness, tapping one’s fingers may just as likely be a sign of annoyance, impatience, or even boredom—any of which may be expected when a person is stopped by a police officer and is awaiting the results of a license check. By itself, tapping one’s fingers is a very weak indicator of nervousness.

Away goes the evidence. The conviction and sentence are vacated. At long last, Miller is actually free to go. Pretending something is happening when it actually isn’t turns out to be a great way to violate rights. And when rights are violated, every so often the victim of the violations scores a win in court.

Filed Under: 4th amendment, 4th circuit, police stops, probable cause, search, suspicion

Ten Seconds Of Doing Nothing Is Reasonably Suspicious, Says The Fifth Circuit Appeals Court

from the can't-make-crime-fighting-omelettes-without-breaking-a-few-Constitutional-eg dept

How much does it take to establish reasonable suspicion needed to subject a person to an at least temporary removal of most of their rights? Not much, says the Fifth Circuit Appeals Court, which appears willing to keep poking the SCOTUS bear with its mind-boggling interpretations of Constitutional rights and the power of law enforcement to bypass them.

This recent decision, highlighted by defense lawyer/”Constitutional cultist” Andrew Fleischman, says all cops need are a few seconds of observation and some vague assertions about criminal activity in the general area.

Here’s the setup, as presented by the Fifth Circuit [PDF]:

Otha Ray Flowers, convicted of a federal gun violation, appeals the denial of his motion to suppress evidence as a violation of his Fourth Amendment rights. The questions on appeal are whether Flowers and Jeremy Mayo were “seized” when five or six patrol cars parked behind and around Mayo’s Cadillac with their patrol lights flashing, and if they were seized, whether Officer Stanton had reasonable suspicion to conduct a “Terry stop.”

Some cops were doing some cop stuff in the area. According to the facts on record, the officers were “looking for suspicious behavior,” a supposedly “proactive” effort in an allegedly high-crime area that is meant to deter criminal acts by, apparently, rolling up en masse on anyone viewed as suspicious by these Direct Action Response Team (yes, that spells DART) officers.

Flowers and Mayo were sitting in the parking lot of a convenience store. The officers were in the area because their supervisor had directed them to patrol near there because of “recent violent crimes and burglaries.” This sounds suspiciously like “predictive policing,” which sends cops to where crimes have been committed under the assumption that lightning strikes twice/people are less white. The Jackson, Mississippi panopticon works, I guess. But only on the assumption that people living, working, or temporarily idling a vehicle in a high-crime area have fewer rights than those fortunate enough to be elsewhere.

So, what were these two “suspects” doing that raised enough suspicion a stop involving five police cars and six officers was warranted? Failing to do anything other than sit in a car for less time than it takes to read the previous two paragraphs:

As Officer Stanton was turning from Capitol Street onto Road of Remembrance, he saw a silver Cadillac parked in the south end of a small parking lot connected to an open convenience store. It was dark outside, but Officer Stanton observed that the vehicle was occupied by two men, one in the driver’s seat and one in the passenger’s seat. Officer Stanton observed the vehicle “for approximately 10 to 15 seconds” and noticed the occupants “didn’t appear to be exiting the vehicle, [and] didn’t appear to be patronizing the establishment.” Therefore, he decided to conduct what he characterized as a “field interview.”

Apparently, even non-movements can be furtive. The response to this momentarily-observed lack of activity was a literal swarm of police officers.

Officer Stanton testified that at this point, he and five to six other officers, all in separate patrol cars, converged upon the silver vehicle with their blue lights activated. The parking lot in front of the store was narrow, with very little space or room to maneuver. Officer Stanton later acknowledged that it would have been impossible for the silver vehicle to leave the parking lot because of the way the officers parked their cars around it.

Behold the majestic absurdity of the following assertion:

Officer Stanton got out of his patrol car and approached the silver vehicle, as did other officers. He testified that the men in the vehicle were still free to leave at this point in the encounter, but he did not communicate that to them.

Who amongst us with five or six police cars surrounding our car would feel “free to leave,” whether or not that option was communicated to us by one of the six surrounding the car? No one. Not a goddamn person would feel this encounter was still voluntary.

At least the Fifth Circuit Appeals Court said it was a seizure under the Fourth Amendment. Pretending it was still consensual was a step too far for even this notoriously law enforcement-friendly circuit. But the very least a court should do when presented with this kind of assertion is to apprise officers that literally no one — not even the officer making this sworn statement — actually believes this kind of “interaction” is consensual.

The end result was the discovery of some marijuana, a gun, and an outstanding warrant. This led to felony charges. And the Fifth Circuit is fine with this outcome because, hey, don’t sit in a car in a high crime area, I guess.

It bears repeating that apart from the presence of a number of police cars, the tenor of Officer Stanton’s encounter with Flowers was entirely benign until Stanton smelled marijuana. He conducted no physical frisk of Flowers’s person but simply approached the Cadillac to ask some questions. If this course of conduct is constitutionally impermissible, then it is difficult to see how any active policing can take place in communities endangered and impoverished by high crime rates.

That’s the takeaway from this decision. Cops can wander over Constitutional lines as long as a court is willing to grant their “high crime area” assertions credibility. There’s no legal definition of “high crime,” so it can be whatever cops want it to be. And when they assert this in front of judges prone to grant every benefit of a doubt to fellow government employees, it will work nearly every time.

Flow our proxy tears, the court advocating on behalf of the policeman said:

Officers in such areas may well require safety in numbers, while the law-abiding citizens desperately need protection that will be denied if law enforcement officials believe that incriminating evidence will be suppressed or they will be sued for alleged violations of rights.

If the cops can’t roll over rights to fight crime, how can they possibly fight crime? That’s the question the Fifth Circuit is asking. And it should have an answer that says cops can’t disregard rights just because they’re patrolling areas where criminal activity is claimed to be “higher” than theoretical areas where it’s apparently lower. But instead, the Appeals Court gives us this:

Under the circumstances of this case and viewing the facts in the light most favorable to the Government, assuming arguendo that these individuals were seized, there was reasonable suspicion to do so. We AFFIRM.

And that is that. The court has basically written a permission slip for stops based on nothing more than a few seconds of observation backed by officers’ assertions that criminal activity has occurred nearby at some point in the past. Looking past the legalese, the Appeals Court is telling people their rights mean less if they happen to be in the wrong place at the wrong time, with the “wrong time” being a few seconds of non-movement while observed by officers trained to view literally anything as suspicious.

If there’s any saving grace to this published decision, it’s the dissent, which casts a whole lot of shade on the majority’s conclusions while taking a shot at the overreacting cops.

As for the “dawdling” of approximately ten to fifteen seconds, the men could have been finishing a conversation, responding to text messages, watching with curiosity as a six-car police caravan passed, or engaging in other reasonable behavior that explains the delay. The facts in this case simply do not support an officer’s reasonable suspicion.

That should have been the majority’s conclusion. Instead, it chose once again to elevate police officers over the policed, and ensured the poorest of the police can be treated the worst without officers feeling they might be held accountable in a court of law for the rights violations they’ve committed.

Filed Under: 4th amendment, 5th circuit, high crime areas, jeremy mayo, otha ray flowers, police, predictive policing, searches, suspicion

from the how-high-were-you-when-you-wrote-your-report dept

When cops are looking to perform warrantless searches, the only thing more useful than drug dogs is officers’ own noses. The invocation of the phrase “smell of marijuana” magically dissipates the protective shield of the Fourth Amendment, allowing officers to engage in searches that often seem to resemble “general rummaging.”

Every so often, this Constitutional evasion scheme fails to pay off. And it’s usually because the officer engaging in a warrantless search or unjustified arrest has gotten used to getting away with it and is caught off-guard when someone questions their actions or challenges their methods.

That’s the case here in this Delaware Superior Court decision [PDF], coming to us via FourthAmendment.com. This suppression order is the direct result of the assertions and actions of a particularly unreliable narrator, Wilmington Police Department Detective James Wiggins.

Detective Wiggins was roaming the streets in an unmarked car when he came across Ivan Cornelius sitting in his parked car. This soon turned into a full-blown search of Cornelius’ vehicle, one that attracted the helping hands of six other officers before it concluded. The end result of the search was this:

Detective Wiggins claimed during direct examination that he found “a bunch of marijuana.” When pressed for more information during cross-examination, Detective Wiggins clarified and stated he meant a “bunch of leaves.” However, there was not enough to send to the lab for testing.

Training and experience etc.

When asked how many leaves it would take to submit the marijuana to the state lab, Detective Wiggins replied that he does not know.

That’s kind of embarrassing for someone on the “Safe Streets Task Force” who’s been given permission to fight crime on pretty much his own terms.

Detective Wiggins stated that it is his job “to stop things from happening before they happen” and, accordingly, to proactively stop cars and ride around looking for suspicious activity.

Wait. He wasn’t finished. Here’s how cross-examination went for Wiggins.

After being unable to state how many leaves are needed to send for testing, the Detective conceded that the lab is able to test even small, personal amounts of marijuana.

Mistakes were made, but at least the detective safetened the streets a bit by removing a “bunch” of drugs from circulation.

The Detective further conceded that the amount he allegedly observed was probably either less than personal use or just personal use.

What Wiggins does know is that the smell of marijuana is a pretty handy way to airgap his actions from the Constitution. As a free-roaming detective, Wiggins firmly believes this odor is all the reasonable suspicion he needs to engage in hundreds of undocumented stops and searches.

Notably, it is Detective Wiggins’s understanding that he can search the entirety of a car as long as he smells marijuana. Detective Wiggins explained that, as a standard patrol officer, he would normally have to call in a traffic stop into WILCOM if he stopped a vehicle. However, as a Task Force officer, he does not need to report to WILCOM when he stops a vehicle for a traffic stop. As Detective Wiggins puts it, if he stops a car and smells marijuana, but does not issue a ticket, there would be no record of it. Moreover, Detective Wiggins estimated that he has made around a thousand traffic stops in the four years that he has been assigned to the Task Force and that he stopped around fifty vehicles the week prior.

Completing Detective Wiggins’ zero accountability loadout was the lack of recording equipment in his unmarked car and his employer being extremely slow on the body cam uptake.

All of this combined to give us the complete botchery observed above (and observed for a bit more below): a detective who doesn’t seem to know much about weed making completely undocumented stops hundreds of times a year based almost solely on the unverifiable claim that he “smelled” something suspicious.

The court here isn’t going to let Wiggins get away with this one. In addition to his inconsistent testimony on the amount of weed recovered during the search, the detective’s narrative shifted when challenged by the defendant’s lawyer.

Detective Wiggins’s initial testimony concerning his observation of the marijuana leaves and air freshener is contradicted by his later testimony. First, in response to what Detective Wiggins noticed about the car while engaging with Mr. Cornelius in the vehicle, Detective Wiggins claimed he smelled marijuana, observed marijuana leaves, and air freshener. Later, in response to Mr. Cornelius’s counsel’s statement concerning whether Detective Wiggins observed marijuana leaves before the two minutes and twenty second mark in the video, Detective Wiggins responded “I’m not sure if I’ve seen it yet or not.”

Finally, the court says the smell of marijuana alone cannot be enough to justify a stop or a warrantless search. (Emphasis in the original.)

The State argues that the smell of marijuana alone is sufficient to establish probable cause. Marijuana odors, while relevant to probable-cause determinations, does not require this Court to find that probable cause exists in every circumstance on sole basis of the odor. Probable cause determinations are made by evaluating the totality of the circumstances.

For instance, in Law v. State, the vehicle’s speed, the occupant’s extreme nervousness, and the odor of marijuana contributed to the Court’s determination that probable cause existed for the search of the car. Likewise, in Valentine v. State, the occupant’s excessive speed, the time of day, and the odor of marijuana contributed to the Court’s determination that probable cause existed.

No probable cause here. The court says the odor of marijuana likely didn’t exist, the other officers at the scene positioned themselves “in a manner consistent with preparing for a search” despite there being no evidence a search was necessary, and the complete lack of normal procedures or documentation are fatal to the state’s case. The detective’s inability to maintain consistency during testimony and cross-examination certainly didn’t help. The evidence (what little there was of it) is now gone and without it, the state has nothing left to prosecute.

Filed Under: 4th amendment, odor, police, search, suspicion, warrantless search

Law Enforcement: Traveling From Anywhere To Anywhere Is Suspicious Behavior

from the a-nation-of-300-million-drug-dealers dept

Want to travel from anywhere to anywhere in the United States without being hassled by law enforcement officers? Good luck with that, citizen.

USA Today’s Brad Heath pointed out an interesting footnote in an asset forfeiture filing that made the assertion that traveling from Chicago to Los Angeles is inherently suspicious. (One presumes the opposite is also true.)

If you can’t see the embed, the government’s footnoted assertion reads:

Chicago is a known consumer city for narcotics and Los Angeles is a known source city where narcotics can be purchased.

Also of note: suspect had a backpack, an item used to carry stuff — something no legitimate traveler would possess.

Turns out this sort of ridiculous assertion isn’t limited to this particular filing. Law enforcement agencies are of the firm belief that traveling between any cities where drugs might be “consumed” (which would be every city in the US) and any cities where drugs might be sold (again, the list is long and inclusive) is a healthy indicator of drug-related activity.

The following map lists “known” drug “source” [red] and “destination” [blue] cities, along with links to relevant court filings or statements by law enforcement officials. Pretty much traveling from any large city to anywhere else could be construed as a drug run.

Even though the courts are sometimes unimpressed by this facet of reasonable suspicion, it’s still routinely used to justify searches of all things.

US v. Green

Once we discount the facts with which we find weaknesses, we are left with Green’s arrival on a plane from a known source city, and her vagueness about the purpose of her trip. These facts are insufficient to demonstrate a reasonable articulable suspicion of criminal activity.

US v. Newland

Given that nearly every stretch of interstate is considered a drug corridor, the fact that a stop occurred on any such route is almost meaningless. See United States v. Wisniewksi, 358 F. Supp. 2d 1074, 1093 (D. Utah 2005) (“[T]raveling on a ‘drug corridor’ cannot reasonably support a suspicion that the traveler is carrying contraband. To so hold would give law enforcement officers reasonable suspicion that every vehicle on every major—and many minor—thoroughfares throughout this country was transporting drugs.”), aff’d, 192 Fed. App’x 749 (10th Cir. 2006). Furthermore, because of courts’ willingness to designate various cities and states as “source” regions for narcotics, it is likely that most major roads in this country could be considered drug corridors. See Foreman, 369 F.3d at 795 (Gregory, J., concurring in part and dissenting in part); United States v. Beck, 140 F.3d 1129, 1138 n.3 38 (8th Cir. 1998) (citing cases recognizing, inter alia, Colorado, Texas, Florida, Arizona, the entire West Coast, New Jersey, New York City, Phoenix, Fort Lauderdale, Houston, Chicago, and Dallas as drug source cities or states); State v. Quirk, 842 N.E.2d 334, 343 (Ind. 2006) (“[C]onsidering the substantial number of states and cities that have been designated as sources of drugs, a motorist, in our highly mobile society, would be hard pressed not to travel either from, to, or through a drug-source jurisdiction.”).

Speaking of which, if you’re not flying, you’re probably driving. Nearly every major highway in the US can be considered a “drug corridor,” depending on who you ask. These “drug corridors,” also known as “interstate highways,” are prime trolling spots for asset forfeiture. Traveling along these roads subjects out-of-state travelers to instant suspicion and warrantless searches, simply because these roads are also used by drug traffickers. Good luck avoiding using one of these highways during a road trip.

Now, some of you might be saying, “Every one of these cases cited resulted in a law enforcement officer finding drugs! They’re right to be so suspicious!” Well, arrestees have more motivation than most to challenge the constitutionality of a search. Many innocent people who have been illegally searched simply because they’re on one of these roads/in any major airport won’t file a lawsuit. In fact, many people probably believe law enforcement has the right to search people and vehicles simply because of their originating cities and/or destinations. On top of that, many searches and seizures are tied to asset forfeiture, where no conviction is ever obtained and the amount of money seized suddenly seems unimportant when a lawyer informs someone they’d need $5000 or so to even consider fighting the uphill battle to liberate the seized funds.

And if you don’t believe me, here’s Eighth Circuit Appeals Court Chief Judge Richard Arnold — from all the way back in 1992 — explaining the dangers inherent to viewing travellers as drug traffickers simply because of where they’re going or where they’ve come from.

The White opinion is less than three years old, and none of our cases decided since that time has questioned it or thrown doubt upon it in any way. There are differences between the present facts and those in White, to be sure, as there always are, but the differences, on balance, do not place this search and seizure appreciably closer to the line of legality than what happened in White. Like Weaver, White was “very nervous,” he arrived from a source city, the flight was early in the morning, and White had no checked luggage. Some of the facts in White, indeed, appear stronger than the present case: for example, White had purchased his ticket with cash, and it was a one-way ticket. The agents did not know whether Weaver had bought his ticket for cash or not, or whether it was one way. Weaver did not have a copy of his ticket, but sometimes innocent people lose their tickets, to say nothing of ticket coupons which may be of no further use to them. I have lost tickets myself. Weaver had no identification, or at least declined to produce any, but this was his undoubted right: we have not yet come to the point in this country (except maybe in airports) when citizens must identify themselves to public employees.

[…]

Airports are on the verge of becoming war zones, where anyone is liable to be stopped, questioned, and even searched merely on the basis of the on-the-spot exercise of discretion by police officers. The liberty of the citizen, in my view, is seriously threatened by this practice. The sanctity of private property, a precious human right, is endangered. It’s hard to work up much sympathy for Weaver. He’s getting what he deserves, in a sense. What is missing here, though, is an awareness that law enforcement is a broad concept. It includes enforcement of the Bill of Rights, as well as enforcement of criminal statutes. Cases in which innocent travelers are stopped and impeded in their lawful activities don’t come to court. They go on their way, too busy to bring a lawsuit against the officious agents who have detained them. If the Fourth Amendment is to be enforced, therefore, it must be by way of motions to suppress in cases like this.

This is America, post-declaration of (drug) war. This has been 40 years in development. Now, we’ve added the faulty assumptions of the post-9/11 “national security above all” mindset to it. Traveling from anywhere to anywhere is to invite the suspicions of our nation’s domestic “warriors” who patrol our airports and highways, ever-vigilant for the opportunity to rip open luggage or toss a rented car in hopes of finding drugs… or better yet, cold, hard cash.

Filed Under: asset forfeiture, doj, probable cause, suspicion, travel