By John S. Berry, Jr.

Berry Law
Introduction

Often referred to as the “Drug Pipeline”, I-80 has become a hot bed for law enforcement to stop and subsequently search out-of-state vehicles in an attempt to find illegal drugs. Over the past several years, we have seen the Fourth Amendment rights of those traveling on the Interstate erode. Due to the increased number of stops, it is becoming increasingly vital for attorneys to have a solid grasp on the ins and outs of interstate drug cases. The following information can be used to better understand previous court rulings and gain insight about how to defend clients facing drug related charges.

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Traffic Stop Seizures

The traffic stop (the “seizure”) occurs when there is:

i. Probable cause to believe a traffic violation has occurred, or

  1. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
    Officers observed truck stopped at an intersection for an unusually long time, take an abrupt right turn, and accelerate quickly down the road they had turned onto. The Court held, as a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.
  2. Heien v. North Carolina, 574 U.S. 54, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014).
    Officer stopped Defendant due to one faulty break light, searched the vehicle, and found cocaine. The state law only required that one brake light be working, but the Court held that an Officer’s misinterpretation of the law does not vitiate probable cause if it was “reasonable” mistake.

ii. Reasonable suspicion criminal activity is afoot

  1. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968).
    Officers conducted pat downs on persons he believed to be planning to rob a bank. The Court held that an officer may conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.
Detention and the Mission of the Traffic Stop

a. Law enforcement may only detain long enough to complete the mission of the traffic stop

i. Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).

  1. A back-up officer arrived at the scene of a traffic stop and conducted a dog sniff, discovering drugs, while the other officer was writing a ticket for the motorist. The Court held that the investigative activity was lawful because it did not prolong the stop beyond the time reasonably required to complete the officer’s original mission.

b. The questioning must not go outside the scope of the traffic stop

i. Rodriguez v. United States, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015).

  1. K-9 officer conducted a traffic stop due to motorist driving on the highway shoulder, undertook the usual traffic stop procedures, issued a written warning, and then continued to detain the motorist for another 7-8 minutes, until a back-up officer arrived, and then conducted a dog sniff of the vehicle. The Court expanded that the “mission” of a traffic stop is to address the violation that warranted the stop and to attend to safety related concerns and that an officer’s mission during a traffic stop typically includes whether to issue a traffic ticket, checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.
Justification for Continued Roadside Detention

a. Consensual Search

  1. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
    A search authorized by consent is valid under the Fourth Amendment.
  2. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 1968).
    A 66-year-old widow allowed four male police officers into her home because they said possessed a search warrant, which they did not. The Court found that if consent was granted only in submission to a claim of lawful authority, the consent is invalid coercion and the search is unreasonable.
  3. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
    Consent cannot be coerced, by explicit or implicit means, by implied threat or covert force. Known knowledge of the right to refuse is not a necessary requisite to voluntary consent and the totality of the circumstances test must be used to determine the validity of consent.

b. Consent to Drug Dog Sniff

  1. U.S. v. Chavira, 9 F.3d 888 (10th Cir. 1993).
    Border patrol agent obtained motorist’s consent to conduct a dog sniff on his vehicle. The dog then indicated to the presence of drugs and a search revealed marijuana and cocaine. The court held that a consented to dog sniff that lead to the discovery of drugs could not violate the Fourth Amendment.
Probable Cause to Search the Vehicle

a. Plain View (drugs, weapons, etc.)

i. Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

Police completed a Terry stop on a man leaving a building that was known for cocaine distribution. The Court held if contraband is left in open view and is observed by a police officer from a lawful vantage point or observed through the sense of touch, they may seize it without a warrant, as it does not constitute a search under the Fourth Amendment.

b. Credible Informant Tip

i. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).
Officers arrested a driver and searched the trunk of his vehicle after receiving an informant tip the driver was selling narcotics out of his trunk. The Court held that the credible informant tip was probable cause to search the vehicle and that probable cause allows for a warrantless search of the entire vehicle, meaning every part of the vehicle and its contents, including the trunk, all containers and packages.

c. Officer Smells Odor of Narcotics

i. United States v. Wright, 844 F.3d 759 (8th Cir. 2016), cert. denied, 137 S.Ct. 2279, 198 L.Ed.2d 710 (2017). The smell of burnt marijuana and presence of a marijuana cigar in plain view through the window were sufficient to justify a search. As no warrant was required, the officers could properly search the glove compartment, as it could conceal drugs they were searching for.

Valid Consensual Search of a Vehicle and Contents

a. Authority to Consent to Search

i. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).
Only those with a “common authority” over the premises or effects can give valid consent to search it. Common authority is not to be implied from a mere property interest but requires a mutual use of the property for most purposes, so that each has a right to permit inspection and other users have assumed the risks thereof.

ii. Memorandum and Order (granting motion to suppress), United States v. DiGiorgio, No. 4:08-cr-03019-RGK-DLP (D. Neb. Aug. 11, 2008), ECF No. 47.

The Court granted a motion to suppress when officer had searched luggage in vehicle which belonged to a passenger who had not consented to the search of the vehicle, while the motorist had. The State had failed to show that the officer thought the bag was mutually used by the two passengers or that the motorist had “common authority” or “control” over the bag.

b. Valid Consent to Search
i. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
A search authorized by consent is valid under the Fourth Amendment.

ii. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).
A 66-year-old widow allowed four male police officers into her home because they said possessed a search warrant, which they did not. The Court found that if consent was granted only in submission to a claim of lawful authority, the consent is invalid coercion and the search is unreasonable.

Arrests and Arrest Warrants

a. Premature Arrest

i. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340.
The Court held that every arrest and every seizure having the essential attributes of a formal arrest, is unreasonable unless supported by probable cause.

ii. United States v. Kithcart, 134 F.3d 529 (3d Cir. 1998).
The Court held that there was no probable cause for officer to arrest and search motorist prior to discovery of guns in the vehicle, regardless of information that two black males driving a black sports car were believed to have committed three robberies in the area.

b. Arrested for Traffic-Related Offense

i. Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).
Motorist was arrested due to driving on a suspended license and the police subsequently searched his vehicle. The Court held that there was no need to search the vehicle for evidence because they already had evidence of the crime he had committed.

ii. Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987).
Officers found controlled substances and large amounts of case in vehicle they were inventorying after driver was arrested for driving under the influence. The Court held that that law enforcement officers may make a warrantless search of a legitimately seized vehicle provided the inventory is conducted according to standardized criteria or established routine.

Roadside Custodial Interrogations

a. When is a motorist “in custody”?

i. Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).
Motorist was pulled over after weaving in and out of an interstate lane. The officer requested he step out of the car and the motorist told the officer he had been drinking and smoking marijuana. The officer subsequently placed him under arrest. Motorist failed to demonstrate that he was subjected to restraints comparable to those associated with a formal arrest to render themselves “in custody” because there was only a short time between the initiation of the stop and arrest, he was not handcuffed, and the officer had not told the motorist that he planned to arrest him.

ii. Howes v. Fields, 132 S. Ct. 1181, 182 L. Ed. 2d 17 (2012).

  1. Prisoner supplied incriminating evidence while serving a prison term. In light of all objective circumstances of the interrogation, to be “in custody” a reasonable person much feel they were not at liberty to terminate the interrogation and leave. The prisoner was not “in custody” because imprisonment alone is not enough to create a custodial situation. Objective circumstances include, the location of questioning, its duration, statements made during the interview, physical restraint during the interview, and the release of the interviewee at the end of the questioning.

iii. State v. Landis, 281 Neb. 139, 794 N.W.2d 151 (2011).
1. Court found that motorist was not “in custody” when he had first consented to additional questioning by the officer he was in the cruiser with and an additional officer leaned on the passenger door, “sandwiched” the motorist between the two of them, and joined in the interrogation.

Related Problems

a. Federal Conspiracy Cases
i. Many large interstate drug stops become multi-state drug conspiracy cases. 21 U.S. Code § 841,846.
ii. Money Laundering. 18 U.S. Code § 1952,1956.

b. Cash Seizures/ Forfeitures/Property
i. “Drugs go east, money goes west”
ii. Vehicles transporting contraband are subject to forfeiture. 18 U.S. Code § 981.

Conclusion

For best results, conduct a step-by-step analysis, even when a 4th Amendment violation is obvious. Talk to local criminal defense lawyers, they know the habits of the highway patrol.

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