Too much time on traffic stops
The state highway patrol officer gets a call from dispatch: somebody phoned in an anonymously tip that a truck semitrailer with a certain Michigan license plate was carrying drugs, traveling north on I-71 around Mansfield. The officer pulls onto the road and comes across the truck five miles ahead. He waits for the truck to cross over the white line on the shoulder, and sure enough, it does, so he makes what will someday become this blog's Bullshit Traffic Stop of the Weekâ˘. One problem: the anonymous tip doesn't provide a basis for tossing the truck. A dog alert would do the trick, but the officer with the drug dog is still 30 minutes away. So the cop chats up the driver, asks to see the truck's log, checks that out... The dog finally shows up, alerts, and sure enough the cops find a brick of coke in the glove compartment.
Good search or bad? The basic law on it is simple: five years ago, in State v. Batchili (discussed here), the Supreme Court held that a motorist stopped for a traffic violation can be detained only "for a time period sufficient to issue a ticket or a warning." But if you know anything about the 4th Amendment, you know that even the "basic" law isn't simple: the fine print in Batchili says that the officer can detain the driver beyond the normal time if "additional facts are encountered that give rise to a reasonable, articulable suspicion of criminal activity beyond that which prompted the initial stop." And, of course, that's to be determined by the "totality of the circumstances."
Needless to say, that makes many 4th Amendment decisions on this issue so fact-specific they have no real precedential value. And that might be said for the 9th District's decision last week in State v. Davenport. But the decision offers a guide for the factors to be considered, and comes out with a pro-4th result, so it's definitely worth a look.
That means we have to start with the facts in Davenport, but we'll keep them simple: Davenport was a passenger in a rental car with a California plate, which was driven by Lewis. Davenport's girlfriend, who wasn't there, was listed as the person who'd rented the vehicle, but Lewis was identified on the agreement as an additional driver. The drug dog showed up about 30 minutes later, which the trial court agreed was beyond the time frame necessary to handle the traffic violation. That meant the only question was whether, under the totality of the circumstances, something occurred after the stop which gave rise to a reasonable suspicion of criminal activity.
The officer, who is referred to in the opinion interchangeably as Officer Fox and Officer Foxx (if the case is converted into a screenplay for a porn film, he will presumably become Officer Foxxx), pointed to a bunch of what he called "criminal indicators": the car was from California, a source state for drugs, it was a rental car, the renter was not present, and the car had a "lived-in look," with papers and trash scattered around the car.
There's a tendency with the totality of the circumstance test to break it down too far: a court winds up weighing each factor in isolation, rather than looking at how they combine to present a picture. That's what happened in Batchili: the court found that the 6th District, in suppressing the search, had used a "divide and conquer" approach, examining each factor individually instead of as a combination. But that doesn't mean that approach doesn't work: five zeroes don't add up to one. Sometimes there just aren't any circumstances to be totaled. What's interesting here is what the court points out didn't happen:
unlike many other cases in which reasonable suspicion was found, here there was no testimony that the Defendants provided conflicting statements, false information, had outstanding warrants, or had an inordinate number of air fresheners in the vehicle.
And this is one of those cases where the appeal was probably won at the trial level; the defense lawyer skillfully painted the Big Picture on cross-examination, as the opinion notes:
Trooper Foxx agreed he would find the existence of the same criminal indicators if confronted with a family in a messy rental vehicle with the parents as additional drivers of the vehicle and the grandparent as the renter of the vehicle.
That's some good lawyering.
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