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11/1/2017 1 Vehicle Stops, Dogs, & Suppression Issues Elisabeth Pollock, Assistant Federal Public Defender Justin Kuehn, Kuehn, Beasley & Young, P.C. KEYROCK – UNFROZEN CAVEMAN LAWYER
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Vehicle Stops, Dogs, & Suppression Issues
Elisabeth Pollock, Assistant Federal Public Defender
Justin Kuehn, Kuehn, Beasley & Young, P.C.
KEYROCK – UNFROZEN CAVEMAN LAWYER
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4TH AMENDMENT BEFORE RODRIGUEZ V. U.S., 135 S.CT. 1609 (2015)• Whren v. United States, 517 U.S. 806 (1996), holds that pretextual stops are okay.
• U.S. Supreme Court holds: The decision to stop an automobile is reasonable if the police officer has probable cause that a traffic violation has occurred even if the officer had ulterior motives for the stop. The subjective intent of the officers in stopping a vehicle plays no part in a Fourth Amendment Analysis.
• Favorable law develops in Illinois state courts that neutralizes the Whren decision.
People v. Brownlee, 186 Ill.2d 501 (1999) .
2‐Part Test:
• (a) Was officer’s action justified at its inception, i.e., did valid reason for stop exist?; and
• (b) Was officer’s action reasonably related in scope to initial reason for stop?
• Police cannot (1) impermissibly prolong a detention or (2) change the fundamental nature of the stop, unless……
• The officer develops a reasonable and articulable suspicion during the stop, e.g., smelling marijuana, etc.
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The use of dogs to develop a reasonable and articulable suspicion
Illinois Supreme Court says: Calling a canine to the scene of a traffic stop illegally “broaden[s] the scope of the traffic stop to include a drug investigation.” People v. Cox 202 Ill.2d 462 (2002).
‐ Does NOT matter under Illinois line of cases if the stop is not prolonged. However, Illinois Sup. Ct. also noted in Cox that calling the dog to the scene, without reasonable and articulable suspicion, impermissibly prolonged the stop.
People v. Caballes, 207 Ill.2d 504 (2003)
• IL Sup. Ct. confirms its position, reiterating in a case that originated with a speeding violation, that “police impermissibly broadened the scope of the traffic stop … into a drug investigation” where police employed a canine sniff of defendant’s vehicle during the stop.
• A delusional young lawyer is tricked into thinking that suppression victories are customary. Times are good!!!
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U.S. Sup. Ct. takes Caballes & Ruins the Fun
• Held: “the use of a well‐trained narcotics‐detection dog – one that ‘does not expose noncontraband items that otherwise would remain hidden from public view’ (U.S. Place) – during a lawful traffic stop, generally does not implicate legitimate privacy interests,” and hence is not a Fourth Amendment “search” requiring suspicion or probable cause of any kind.
• Police are free to convert a traffic inquiry into a full‐blown fishing expedition.
• Whren permits pretextual stops. Caballes allows police to investigate the unsupported hunch that is the real reason for the stop.
Caballes Decision Leaves Open One Window
A traffic stop can become unlawful “if it is prolonged beyond the time reasonably required to complete” the stop.
The case law that developed post‐Caballes slowly closed the window.
‐ The question became whether an officer’s abandonment of the traffic‐related investigation, to explore other hunches, exceeded the time of a ‘normal’ traffic stop.
‐ See, e.g., U.S. v. Alexander (8th Cir. 2006), holding that “dog sniffs that occur within a short time following the completion of a traffic stop are not constitutionally prohibited if they constitute only de minimisintrusions.”
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Rodriguez to the Rescue!!!
• Rodriguez v. United States, 135 S. Ct. 1609 (2015) eliminates the so‐called de minimis exception.
• Lower Rodriguez courts ruled that the 7 to 10 minute delay added to the stop by the dog sniff was “not of constitutional significance” and “resembled the delays that the court had previously ranked as permissible.”
• 8th Circuit ruled the delay constituted an acceptable “de minimis intrusion on Rodriguez’s personal liberty.”
• Supreme Court refuses to endorse this position.
Supreme Court Denounces Concept that De Minimis Constitutional Violation is Okay• Ginsburg: “The Government’s argument, in effect, is that by completingall traffic‐related tasks expeditiously, an officer can earn bonus time topursue an unrelated criminal investigation. The reasonableness of aseizure, however, depends on what the police in fact do. In this regard, theGovernment acknowledges that ‘an officer always has to be reasonablydiligent.’ How could diligence be gauged other than by noting what theofficer actually did and how he did it? If an officer can complete traffic‐based inquiries expeditiously, then that is the amount of ‘time reasonablyrequired to complete the stop’s mission.’ As we said in Caballes andreiterate today, a traffic stop ‘prolonged beyond’ that point is ‘unlawful.’The critical question then is not whether the dog sniff occurs before orafter the officer issues a ticket, but whether conducting the sniff‘prolongs’ – i.e. adds time to ‘the stop.’”
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Does this breathe life back into Illinois’ former laws that offered so much play?• Does officer that ‘changes nature of stop’ cause delay, if only a little delay?
• Example: Officer decides to ask if anything illegal is in the car or requests consent to search. Has the officer incrementally prolonged the stop?
• Rodriguez language: “Because addressing the [traffic] infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate that purpose.”
• While the focus remains on DURATION and not SCOPE, the practical difference is negligible. We must explore whether any probing designed to satisfy a police hunch takes the officer away from traffic‐related duties, and thus, elongates the stop.
Rodriguez enumerates legitimate police conduct relating to traffic stop• Fourth Amendment tolerates certain unrelated investigations that do not lengthen roadside detention.
• Examples: checking the driver’s license, doing a warrant check, inspecting the car’s registration and the driver’s proof of insurance.
• However, an Officer may not perform these tasks in a way that unreasonably prolongs the stop. In other words, NO STALLING!
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USA v. Silvia Blanca‐Moran
• Trooper Patterson testified, though not in a particularly believable way, that he did not stall to allow a canine unit to arrive.
• Judge Yandle: “The Court does not find credible Patterson’s testimony that the delay in issuing the citation and warnings was due to a new warning issuance system and the fact that he was having trouble finding the statutes. The Court’s review of the video, which includes long stretches in which Trooper Patterson does not appear to be doing anything but sitting, leaves it with the firm impression Patterson’s lack of expediency was deliberate … he was stalling.”
How Does Law Enforcement Get Around Rodriguez???
1) Again, attempts to stall without appearing to stall.
2) Reasonable Suspicion
3) Claim the traffic stop converts into a “Consensual Encounter”
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Stalling – how do we help the court see it? (Judge Yandle needed no help in my case)• Police will say they did nothing more than expeditiously perform routine traffic matters while the other officer raced to the scene.
• Remember 2 things:
• (1) Officer has motive to stall. He wants to search & doesn’t have cause yet. Is he really trying to move things along and beat partner’s arrival on scene?
• (2) Some level of communication occurred, during the stop, to explain to the canine officer why he was needed. Traffic‐related business is not being conducted during this communication.
• Has the stop been prolonged, not by the dog sniff itself, but by arrangement for the dog sniff?
Reasonable Suspicion – another way police will try to get around Rodriguez• R.S. allows police to detain someone for a brief period … long enough to dispel suspicion.
• If R.S. exists, it will usually justify officer delaying stop long enough to get a dog on‐scene to perform a sniff in an effort to develop probable cause, which is required to search.
• Reasonable Suspicion is its own seminar topic.
• Totality of Circumstances: Common factors are (1) nervousness; (2) conflicting travel plans; (3) air fresheners; (4) furtivemovements (e.g. reaching under the seat); (5) criminal history; (6) place of origin and destination; and (7) rental car or car registered in someone else’s name.
• Note: The officers usually need more than 1 of these.
• Officer will usually try to cover both bases. He will say he conducted routine traffic matters while canine was in route. The officer’s reluctance to simply acknowledge that he detained a driver so that a drug‐sniff could be performed, undercuts his credibility when he later claims that reasonable suspicion existed all along.
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Consensual Encounter
• Consensual encounters do not require reasonable suspicion or probable cause as long as a reasonable person would feel free to leave or decline to speak w/ police
• Common Scenario – Officer issues warning citation, then asks permission to search. If a reasonable person would feel free to leave, this does not involve 4thamendment implications.
• Look for a constitutional violation before the consent is obtained.
• My Moran memorandum: “If the Fourth Amendment has meaning, an officer cannot be allowed to abrogate an illegal seizure by procuring consent during the same encounter. Otherwise, the police are at liberty to stop people on a whim and attempt to cure their illegal seizure by obtaining permission to search.”
What if the dog alerts, and you can’t make a claim under Rodriguez?
• You must examine the reliability of the dog’s alert
• “Hounds follow those who feed them.”― Otto von Bismarck
• Was it a false alert (i.e. did the dog alert but no drugs were found?)
• Was it a positive alert but you question whether a dog can ever truly be trusted?
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Try Florida v. Harris, 568 U.S. 237 (2013)
• Driver pulled over for an expired license plate
• Officer claimed the driver was “nervous” and had an open can of beer in the cupholder
• Driver refuses a consent search, so the K‐9 is deployed
• K‐9 alerts near the driver’s side door and a search is conducted based on the alert
• NO DRUGS (YAY!)
• Sudafed and other meth manufacturing materials (BOO!)
The Florida Supreme Court tried so hard to help the driver out…
• FL Supreme Court develops “checklist” approach for evaluating the totality of the circumstances when a K‐9 sniff is the basis for PC
State must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog
Proper Training and Certification
False alert rate in training
Field performance records
Training and experience of handler
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The Supreme Court rains on our parade…again
• FL Supreme Court approach not flexible enough
• “A dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.”
• BUT…a defendant may still challenge the dog’s reliability
Challenge adequacy of training program
Examine training records
History of dog/handler’s performance in the field
Conditions surrounding the alert: was the dog cued by the handler? Working under unfamiliar conditions?
Challenging the Dog
• Is the dog properly trained?• ILLINOIS: P.A. 97‐0469 (50 ILCS 705/10.12) amended the Police Training Act to require that “police dogs used by State and local law enforcement agencies for drug enforcement purposes…” be trained to meet the “minimum certification requirements” set by the Training Board. These standards were developed based upon the SWGDOG Guidelines.
• ILETSB website (http://www.ptb.illinois.gov/) provides a link to a list of training entities that meet the Training Board’s “minimum certification requirements”
• What are they actually? No list anywhere, so head over to SWGDOG…
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SWGDOG
• Scientific Working Groups (SWGs) were created to develop national standards related to a variety of disciplines, including DNA analysis, fingerprint analysis, bloodstain analysis, etc.
• SWGDOG – Scientific Working Group on Dog and Orthogonal Detector Guidelines
• Formed to find a consensus on best practices for the use of detection teams and to enhance the performance of detector dog teams
• SWGDOG SC8 lays out guidelines for the training and certification of narcotic detector canines
https://swgdog.fiu.edu/approved‐guidelines/sc8_contraband.pdf
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SWGDOG is now NIST
• NIST: National Institute for Standards and Technology (http://www.nist.gov)
• Part of NIST: The Organization of Scientific Area Committees for Forensic Science (OSAC)
• OSAC: Dogs and Sensors Subcommittee (https://www.nist.gov/topics/forensic‐science/organization‐scientific‐area‐committees‐osac/dogs‐and‐sensors‐subcommittee)
• In general, the development of standards and guidelines is transitioning from the Scientific Working Groups (SWGs) to the OSAC. The existing SWG documents will remain in effect until updated documents are disseminated…
DOGGY DISCOVERYWhat to get and how?
• Rule 16 (a/k/a ask the prosecutor)
• FOIA (a/k/a avoid the prosecutor)
• WHAT TO ASK FORDash cam video of the stop
K‐9 training recordsK‐9 field recordsK‐9 certification documents (ILETSB)
K‐9 re‐certification documents (ILETSB)
Notes/data entry related to the stopVeterinary records
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA, )
) PLAINTIFF, )
) VS. ) NO.16-30114-SMY
) BLANCA SILVIA MORAN, )
) DEFENDANT. )
MEMORANDUM SUPPORTING DEFENDANT BLANCA SILVIA MORAN’S MOTION TO SUPPRESS EVIDENCE
The defendant, Blanca Silvia Moran, by her lawyer, Justin Kuehn, states the
following in support of her Motion to Suppress Evidence:
Justice Ginsburg: “If an officer can complete traffic-based inquiries expeditiously,
then that is the amount of ‘time reasonably required to complete [the stop’s] mission.’
Caballes, 543 U.S., at 407, 125 S.Ct. 834. As we said in Caballes and reiterate today, a
traffic stop ‘prolonged beyond’ that point is “unlawful’. Rodriguez v. United States, 135
S.Ct. 1609, 1616 (2015), quoting Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834
(2005)(emphasis added).
Factual Background and Commentary
This case originates from a traffic stop conducted on October 4, 2016. The entire
stop is captured on videotape. Thus, the facts relevant to this motion will not involve much
dispute. The battleground will instead be formed by questions surrounding the legal effect
of those acknowledged facts. The following is a synopsis of the evidence that the defense
expects the Court to receive:
Trooper Ken Patterson spent October 4th patrolling Highway I-70. At 3:01 p.m.,
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he encountered Ms. Moran traveling eastbound. She changed lanes without signaling, and
according to Trooper Patterson, ‘cut-off’ a tractor trailer. Trooper Patterson pulled Ms.
Moran’s vehicle to the side of the road, citing these traffic violations. While the defense
suspects that the traffic-related reasons for this stop are pretextual, at least in part, the legal
right to initiate the stop is not being challenged.
Trooper Patterson first approached Ms. Moran’s vehicle on the passenger side, to
avoid traffic. He asked Ms. Moran for her driver’s license and registration and she
complied. Trooper Patterson briefly explained the reason for his stop and asked Ms. Moran
to accompany him back to his car, where he would write her a warning ticket. As soon as
Ms. Moran was seated in Trooper Patterson’s squad car, he re-approached Ms. Moran’s
vehicle and started speaking with the passenger, Mario Rodriquez-Escalera (hereinafter
“Mario”). Mario is Ms. Moran’s fiancé and is a co-defendant in this case.
Trooper Patterson acquired identification from Mario. Then, while Mario was
separated from Ms. Moran, Trooper Patterson asks him to explain the couple’s travel plans.
Mario said that he and Ms. Moran were headed to Pennsylvania. Trooper Patterson did not
mention air fresheners during this conversation, but would later note in his written report
that they were prevalent.
After speaking with Mario and taking his identification, Trooper Patterson returned
to his squad car and began engaging in conversation with Ms. Moran. She said the couple’s
journey would take them to New York. Trooper Patterson pressed for details. Ms. Moran
told him that she wanted to see Manhattan and Brooklyn, and that she would find a hotel
when she arrived.
During the stop, Trooper Patterson learned that Ms. Moran’s driver’s license was
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either suspended or revoked. She seemed surprised and inquired as to the reason. Trooper
Patterson was unsure. Ms. Moran explained that she received a ticket about a month prior
and speculated that the past ticket was to blame for her suspension. Trooper Patterson
asked if Mario was licensed to drive. Ms. Moran replied that Mario possesses a Mexican
driver’s license.
Trooper Patterson exited his squad car and once again approached Mario and asked
for his license. Mario complied. Then, Trooper Patterson reinitiated questioning about the
couple’s travel plans. He asked Mario to provide the city in Pennsylvania to which they
were traveling and inquired concerning the duration of the stay. Mario was unable to
provide details with any certainty.
Upon returning to his vehicle, Trooper Patterson asked Ms. Moran whether or not
Mario was aware that New York was the scheduled destination. Ms. Moran answered
‘no’. She clarified for Trooper Patterson that the trip to New York was a surprise and,
prior to Trooper Patterson mentioning Pennsylvania, provided this explanation: “I told him
we were going to Pennsylvania … I am going to surprise him in to New York because he
has never been to New York, either.”
About twenty-four minutes into the traffic stop, Ms. Moran was told that she would
be receiving a ticket for driving on a suspended license and that Mario would have to drive
for the rest of the trip. Right about the very same time, another officer, Trooper Baudino,
received a message from Trooper Patterson. Trooper Baudino is a K-9 officer employed
with the Illinois State Police. Using an Illinois Wireless Information Network, Trooper
Patterson was able to request Trooper Baudino’s assistance without letting Ms. Moran
know about it.
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For approximately the next ten minutes, Trooper Patterson prepared the ticket. He
made small talk with Ms. Moran, asking her about Mario and how long the couple had
been dating. Meanwhile, Trooper Baudino raced to the scene, passing one care after
another with sirens blazing. He arrived on-scene about ten minutes after being dispatched.
Ms. Moran’s traffic citation printed at almost the exact moment that Trooper
Baudino pulled in behind Trooper Patterson. Without question, it was Trooper Patterson’s
intent to circle Ms. Moran’s vehicle with a K-9, and therefore, it seems a tad coincidental
that his traffic-related duties happened to conclude at the precise moment that Trooper
Baudino appeared. In reality, Trooper Patterson likely stalled a bit to avoid the impression
that he was idly waiting for a drug-detecting K-9. Either way, Trooper Patterson made
very clear that the traffic stop was over before the drug sniff started. Trooper Patterson
handed Ms. Moran her ticket, her license and registration, and Mario’s driver’s license.
Then, without telling Ms. Moran she was free to leave, Trooper Patterson said: “ He’s
[Mario] going to drive from here. However, there is a k-9 behind us that is going to walk
around the vehicle real quick for us. So can you close the door real quick? The dog can
be aggressive and I don’t want him to bite you, okay.”
Despite the conclusion of all traffic affairs, Trooper Baudino nevertheless ran his
K-9 partner, Villy, around Ms. Moran’s vehicle. Villy did not alert, i.e., she did not signal
the presence of narcotics. Trooper Patterson returned to his vehicle where Ms. Moran
remained detained. The following conversation then took place:
Patterson: Maam, is there anything illegal in the car at all that I should know about?
Moran: No.
Patterson: Okay. Um …
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Moran: What?
Patterson: Just making sure there is nothing illegal. Just making sure that you guys are actually going to where you’re going to, okay? And not Pennsylvania … you’re actually going to New York?
Moran: Yes, New York.
Patterson: What kind of possessions do you have in your vehicle, right now, what do you have?
Moran: What kind of what?
Patterson: Any Luggage at all? Any bags?
Moran: Well, my luggage.
Patterson: Is there any luggage that anyone gave you to take along to New York at all?
Moran: No.
Patterson: No. Okay. You’re free to go and everything but I’m just concerned that there might be something illegal inside the car. Usually, most people don’t say ‘hey, let’s go on a trip’. And then, they …it’s a surprise, they go to New York. It’s kind of out of the ordinary I should say. I know that probably doesn’t make any sense to you.
Moran: No.
Patterson: Does that not make any sense to you? A strange trip?
Moran: No. I take my vacations.
Patterson: Yeah, but telling someone you are actually going to Pennsylvania and then actually you are going to New York, that’s kind of out of the ordinary as far as a trip goes, itinerary wise. Can I search that vehicle and its contents …
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Moran: Sure.
Patterson: To make sure there is nothing illegal, is that alright?
Moran: (nodding yes)
Patterson: I’ll just have you stay in the vehicle and I’ll have him step out.
A search ensued. Approximately 7½ pounds of methamphetamine were found
during the search. This motion seeks to suppress that methamphetamine.
Analysis
The defense relies heavily on the United States Supreme Court’s recent holding in
Rodriguez v. United States, 135 S.Ct. 1609, 83 USLW 4241 (2015).
Defendant Denny Rodriguez, and his passenger, Scott Pollman, were pulled over
in Nebraska for veering onto the road’s shoulder. Rodriquez, 135 S.Ct at 1612. The
Nebraska trooper attended to the traffic-related basis for the stop and then issued a warning
ticket. Rodriguez, 135 S.Ct. at 1613. Thereafter, the trooper asked Rodriguez for
permission to walk a K-9 around his vehicle. Id. Rodriguez refused. Id. The Nebraska
trooper then ordered Rodriguez out of the car and performed an open air search which led
to a K-9 alert. Id. A large bag of methamphetamine was discovered. Id.
The Supreme Court framed the issue in the case as “whether the Fourth Amendment
tolerates a dog sniff conducted after completion of a traffic stop.” Rodriguez, 135 S.Ct. at
1613. It held that “a police stop exceeding the time needed to handle the matter for which
the stop was made violates the Constitution’s shield against unreasonable seizures.” Id.
Focusing specifically on traffic stops, the Supreme Court further opined that “[a] seizure
justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is
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prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a
ticket for the violation.” Id., quoting Caballes, 543 U.S. at 407. “An officer … may
conduct certain unrelated checks during an otherwise lawful traffic stop[,] [b]ut … he may
not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily
demanded to justify detaining an individual.” Rodriguez, 135 S.Ct. at 1616.
Here, if Trooper Baudino’s K-9, Villy, had alerted on the methamphetamine inside
Ms. Moran’s vehicle, the facts of the present case and the facts in Rodriguez would be
virtually identical. Ms. Moran’s detention was unquestionably prolonged by the dog sniff.
The traffic mission was over at that time, plain and simple. Thus, the first question
presented by these facts is whether or not a ‘reasonable suspicion ordinarily demanded to
justify detaining an individual’ existed when Trooper Patterson told Ms. Moran to wait in
his squad car while Villy circled her BMW. The defense respectfully submits that
reasonable suspicion of criminality did not exist.
Ms. Moran’s explanation that she planned to surprise Mario with an unexpected
trip to New York might be peculiar to some, but in no way does it create evidence of
criminality sufficient to warrant detention. Hypothetically speaking, if an officer asks a
husband and wife leaving a travel agency where they are planning to vacation, and the
officer receives conflicting replies, that cannot conceivably be enough to warrant a seizure.
This is particularly true if the wife tells the officer, outside the husband’s earshot, that she
plans to surprise her husband by secretly taking him to a different location. If the
reasonable suspicion ordinarily demanded to justify detaining an individual does not exist
in this imaginary scenario, then it does not exist here. Apart from Ms. Moran and Mario
providing different travel destinations, Officer Patterson observed nothing indicating that
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criminal activity was afoot, save possibly the fact that the BMW contained air fresheners.
To the extent that reasonable suspicion did not exist, Trooper Patterson undeniably
violated Ms. Moran’s Fourth Amendment rights. Rodriguez makes that clear. However,
this case involves an unusual nuance. Here, the K-9 failed to smell the 7½ pounds of
methamphetamine hidden in the trunk. Normally, when a trained German Shepard circles
a car filled with drugs, he alerts. This creates probable cause and a search ensues. In this
case, if Villy had alerted, and Officer Patterson would have conducted a probable cause
search, Rodriquez’ answer would be clear. The fruits of the search would be invalidated
because the probable cause flowed from an illegal detention created by an unlawful
extension of the traffic stop.
But here, Villy’s search did not create probable cause. In fact, to the extent any
small basis existed to think that Ms. Moran and Mario were engaged in some type of illegal
activity, that basis greatly dissipated when the K-9 failed to alert. Officer Patterson’s gut
left him convinced, however, that something was awry. Even after the unlawful drug sniff,
Officer Patterson returned to his squad car, where Ms. Moran sat illegally detained, and
questioned her about potential criminality completely unrelated to the traffic-based reason
for his stop. While Officer Patterson did finally mention that Ms. Moran was free to leave,
he did so amidst several comments that he believed she and Mario were engaged in criminal
endeavors. Well after the legal basis for this traffic stop was over, and only after an illegal
K-9 sniff proved fruitless, Trooper Patterson sought and obtained consent to search. The
final question posed is whether or not that consent is also tainted by the unlawfully
prolonged traffic stop, in the same manner that probable cause would have been tainted if
Villy would have alerted.
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There is case law support for the notion that a traffic detention can turn into a
consensual encounter after the traffic-related mission for the detention ends, so long as a
reasonable person under the same circumstances would feel free to leave and disregard the
officer’s continued communications. See, e.g., United States v. Wallace, 429 F.3d 969,
974-975 (10th Cir. 2005). As an initial matter, the defense does not accept the notion that
Ms. Moran’s interactions with Trooper Patterson ever became consensual, i.e., that a
reasonable person in her shoes would feel free to simply walk away. In the very final
moments of the detention, right before Trooper Patterson asked for consent, he did mention
for the first time that Ms. Moran was free to go. However, he did so at the tail end of a
diatribe setting forth all of the reasons that he believed Ms. Moran’s vehicle contained
something illegal. The conversation between Trooper Patterson and Ms. Moran leading up
to his request to search did not involve the hallmarks of a consensual encounter. Before
Trooper Patterson told Ms. Moran she was free to leave, he let her know that he believed
something illegal might be in the car, and that her travel plans were suspicious. Most
people in Ms. Moran’s position would not feel at liberty to tell an officer, in the face of
similar accusations, something to the effect --- ‘think what you will, but I’m leaving’.
With all of that said, there is another reason for which this unique traffic stop can
never be seen as a converted consensual encounter, a reason that presents far-reaching
Fourth Amendment implications. Again, what makes this a very rare set of facts indeed is
that K-9 Villy made a mistake. In prolonged traffic stop cases, two distinct set of
circumstances are typically going to be involved. In the first, the officer prolongs a stop
so that a K-9 sniff can be conducted. The second type involves officers who briefly extend
a traffic stop to ask a few questions and try to obtain consent to satisfy a hunch. These are
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the so-called consensual encounter cases. Very rarely, will the same traffic detention
involve both scenarios. The reason is that the cases which ultimately make their way to
court will almost always involve the discovery of drugs, and if drugs were actually present,
the K-9 will typically alert. Consent in drug sniff cases is therefore almost never an issue
because it is not needed. Conversely, in cases were consent is requested and obtained,
there will never be a reason for employing a K-9 sniff.
Of course, this case is different and thus distinctive. The Court is asked to answer
a question that no case has posed since the Supreme Court issued Rodriquez: Can an
officer obtain valid consent to search as part of a voluntary encounter on the immediate
heels of an illegal detention? Respectfully, the defense maintains that the answer must be
‘NO’ if the Fourth Amendment’s promise against unreasonable search and seizure means
anything. If Ms. Moran’s permission to search is the product of a consensual encounter,
then police officers no longer need probable cause or reasonable suspicion to seize
someone. As long as the officer can ultimately procure consent to search someone’s person
or vehicle, the legality of the initial stop matters not.
A different analysis would apply if Officer Patterson would have transitioned
directly from the traffic stop into consensual conversation that ended with consent to
search. However, armed with nothing more than conflicting travel plans, plans which Ms.
Moran explained to Officer Patterson, he chose to detain her beyond his traffic mission so
that a dog search could be conducted. Ms. Moran suffered an illegal detention at that point
and any fruits that the police uncovered from that point forward, including her consent, and
the contraband that her consent ultimately produced, are poisoned. If the Fourth
Amendment has meaning, an officer cannot be allowed to abrogate an illegal seizure by
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procuring consent during the same encounter. Otherwise, the police are at liberty to stop
people on a whim and attempt to cure their illegal seizure by obtaining permission to
search.
One last point needs to be made. It matters not that Officer Patterson’s illegal
detention of Ms. Moran was relatively brief. In Rodriguez, the Government argued that an
officer should be able to ‘incrementally’ prolong a stop, so long as the officer remains
diligent regarding the traffic-related basis for the stop and the overall duration of the stop
is not unreasonable in relation to similar stops. Rodriguez, 135 S.Ct. at 1616. The
Supreme Court rejected this argument:
How could diligence be gauged other than by noting what the officer actually did and how he did it? If an officer can complete traffic-based inquiries expeditiously, then that is the amount of ‘time reasonably required to complete [the stop’s] mission.’ [citation omitted]. As we said in Caballes and reiterate today, a traffic stop ‘prolonged beyond’ that point is ‘unlawful.’ [citation omitted]. The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, as Justice Alito supposes, [citation omitted], but whether conducting the sniff ‘prolongs’ – i.e. adds time to– ‘the stop[.]’
Rodriguez, 135 S.Ct. at 1616.
There really can be no honest debate that Officer Patterson prolonged Ms. Moran’s
detention with a dog sniff. It matters not that the extension was a brief one. Ms. Moran’s
Fourth Amendment rights were violated, and once they were, everything that flowed from
the violation should be suppressed.
WHEREFORE, the Defendant, Silvia Moran, respectfully prays that the Court will
grant her Motion to Suppress Evidence.
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s/Justin A. Kuehn Justin A. Kuehn #6275313 Kuehn, Beasley & Young 23 South First Street Belleville, IL 62220 Telephone: (618) 277-7260 Fax: (618) 277-7718 [email protected]
CERTIFICATE OF SERVICE
I hereby certify that on January 3, 2017, I electronically filed the
MEMORANDUM SUPPORTING DEFENDANT SILVIA BLANCA MORAN’S
MOTION TO SUPPRESS EVIDENCE with the Clerk of the Court using the CM/ECF
system which will send notification of such filing to all counsel of record
s/Justin A. Kuehn Justin A. Kuehn #6275313 The Kuehn Law Firm 23 Public Square, Suite 450 Belleville, IL 62220 Telephone: (618) 277-7260 Fax: (618) 277-7718 [email protected]
