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Supressing Drugs Found During Motor Vehicle Stops

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54+ Five-Star Google Reviews

“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.”


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SUPRESSING DRUGS FOUND DURING MOTOR VEHICLE 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 attorney may ask the judge to suppress the evidence the police gathered 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 THE POLICE ALLOWED TO STOP A VEHICLE?
II. WHEN ARE THE POLICE ALLOWED TO SEARCH A VEHICLE?
III. WHO CAN CHALLENGE THE STOP OR SEARCH?
IV. COMMON SITUATIONS
1. Stop of Vehicle and Pat-Down of Occupants
2. Limited Search of Vehicle for Weapons That Turns Up Drugs
3. Search of Vehicle Incident to Arrest of Occupants
4. Warrantless Search of Vehicle Based on Probable Cause
A. Officer Alleges Odor of Marijuana
B. Dog Sniffs
C. Prolonged Detention to Wait for K-9 Unit
D. Search at Traffic Checkpoint
5. Inventory Search Used as a Pretext to Search for Drugs

I. WHEN ARE THE 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 ALLOWED 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.

IV.COMMON SITUATIONS

1. 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 that 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 that record everything during a traffic stop. To attack the legality of the stop and search, John’s attorney 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 that 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 attorney 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 attorney can point out that no evidence links the cars’ occupants to drugs, guns or anything else that justified a pat-down.
John’s attorney 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 that he always conducts a pat-down when he makes a traffic stop because of the inherent danger of the situation. John’s attorney 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 attorney can further emphasize that the police did not know anything about John before the stop was made and that it is not illegal to travel after dark.

2. 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 attorney wants to demonstrate that the police did not see any specific actions by the car’s occupants that would lead them to believe that any of them had a weapon. The attorney will further emphasize that the officers had a very good view into the car with their headlights.

3. Search of Vehicle Incident to Arrest of Occupants

Police may search the passenger compartment of a car and all containers inside that 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 that 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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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.

A. 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 attorney 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 attorney can argue that the prosecutor has to provide some basis or a demonstration for the cop to be able to claim to detect the smell of unburnt marijuana.
The defense attorney can view the marijuana at the police evidence room or the crime lab and make an independent determination if it can be smelled from the distance the officer claims he could detect the odor. If the marijuana was in a plastic container or multiple containers, the attorney can place the evidence in similar containers and stand as many feet away as the officer said he was when he first smelled it. If the marijuana was recovered in a car trunk, the attorney 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 attorney can subpoena the evidence to demonstrate to the judge that the officer’s claims lack 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 attorney 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.

B. 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.

The defense must be allowed to challenge a dog’s reliability. The defense may call witnesses or cross-examine prosecution witnesses and argue that the dog’s training and certification program is insufficient or has overly lax standards; that the dog performed poorly in the field; or that the dog’s handler improperly cued it. 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; and (4) an officer’s ability to properly read a dog’s alert. The first step in this process is for the defense attorney to review the dog’s training, certification and performance records, and veterinary records. An expert can be hired to assist with this 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 that 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 attorney can subpoena the dog handler’s training, certification, and performance records as well. The handler should have a detailed log of all of his training and searches with his dog, including all search results, whether true or false positives and negatives. The defense attorney can view any training videotapes 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 attorney can obtain the tape and review it to see how or if the dog is alerted.

In court, the attorney 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.

C. 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 3:30 p.m. The state trooper asks for a valid license, which Joe produces; the license is from another state. The trooper questions Joe about why he is passing through the state 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 that arose 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 drove his car slowly through in 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 that Mike was engaged in drug activity. If Mike were observed by an officer, his behavior could provide the officer with a reasonable suspicion that 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.

D. 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, as long as 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 a roadblock 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 attorney 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 attorney will want to check state statutes and codes for rules about traffic checkpoints. The attorney 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 attorney can bring out the officer’s failure to follow the rules set up for the roadblock.

Sandy’s attorney 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 that 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, and their actions are inconsistent with the caretaking purpose of an inventory search. This may be proof that the 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, 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 that 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 that 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 attorney 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.

Even 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 because this was one method of obtaining access to cars to search them? 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 of it or asked to sign it, so that he acknowledged what was found in the car? If not, Will’s attorney can argue that “a disinterested cataloging of a car’s contents” did not occur.

A final issue may be whether the vehicle needed to 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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54+ Five-Star Google Reviews

“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.”


J.S.

54+ Five-Star Google Reviews

“I hired Zachary after I found myself charged with a felony. He put me at ease right away and during the whole process he explained each step to where I understood everything and was always available for any questions I had. ”


S.N.

54+ Five-Star Google Reviews

“Attorney Zachary is a brilliant attorney, I highly recommend his company to resolve any legal/criminal matter satisfactorily. He still continue to work on my case to tie some loose ends. He is intelligent , prompt and a problem solver. I thank him a million times to protect my dignity and reputation.”


D.G.

54+ Five-Star Google Reviews

“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!”


Joshua Black, Attorney

54+ Five-Star Google Reviews

“Attorney Divelbiss is a hard worker and will advocate for his clients with an attention to detail that you don’t see very often these days.”


Brandon White, Attorney

54+ Five-Star Google Reviews

“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.”


Josephine Hallam, Attorney

54+ Five-Star Google Reviews

“Mr. Divelbiss and I worked in the same office, although we were at different law firms. He was eager to learn and developed a reputation for honesty and zealous advocacy.”


Kristopher Califano, Attorney

54+ Five-Star Google Reviews

“Mr. Divelbiss is a GREAT attorney, very honest and reliable. He takes his times with every client and answers all questions and concerns. Is been a pleasure working with Mr. Divelbiss and he serves his clients very well!”


Allen Hsu, Attorney