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.
The traffic stop (the “seizure”) occurs when there is:
i. Probable cause to believe a traffic violation has occurred, or
ii. Reasonable suspicion criminal activity is afoot
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).
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).
a. Consensual Search
b. Consent to Drug Dog Sniff
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.
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.
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.
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).
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.
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.
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.