Update from the courts
Community Caretaking Encounter Lead to Valid DUI Arrest
by CHIEF KEN WALLENT
IF AN OFFICER SAW GONZALES pull off the road at 0100 in an area leading out-of-town where there were no houses and few businesses and minimal traffic. The officer pulled behind Gonzales to check to see whether he was lost or had a flat tire or some other problem. The officer turned on his emergency lights so that Gonzales would know that it was a police officer behind him and not some bandit.
When the officer walked up to Gonzales’ car to speak to him, he smelled a strong odor of alcohol and saw that Gonzales’ eyes were bloodshot. Gonzales spoke with slurred speech. The officer began an impaired driving investigation and ultimately arrested Gonzales for felony DUI.
Gonzales claimed that he was seized without reasonable suspicion or probable cause.
The prosecution relied on the community caretaking doctrine discussed by the Supreme Court in Cady v. Dombrowski, 413 U.S. 443 (1973). The community caretaking doctrine allows an officer to detain a person when the officer’s primary motivation is to see whether the person needs help and the totality of the circumstances makes it reasonable to believe the person needs help.
The court upheld the community caretaking stop. The court explained that the location, time of night and the light traffic meant that Gonzales would have limited opportunity for help if, in fact, he needed help. Once the officer saw signs of impairment, there was reasonable suspicion to detain Gonzales for a DUI investigation. Gonzales v. State, — S.W.3d —-, 2012 WL 2400763 (Tex. Crim. App. 2012).
Detector dog information not required in affidavit
A CI told a detective that Arcuri had more than 5 pounds of marijuana in his hotel room and van. The detective called a drug detector dog team to sniff the hotel hallway outside Arcuri’s room and to sniff the van in the parking lot. The dog gave a positive final response to the odors of controlled substances at both the hotel room door and the van.
Based on the dog’s responses, the detective obtained a search warrant for the van and the hotel room. The detective found marijuana in both locations. Arcuri challenged the probable cause affidavit for the warrant. The affidavit did not state that the detector dog was trained and certified at the time of the sniffs.
The court held that the reviewing magistrate properly issued the search warrant. Because the affidavit stated that the detective was a narcotics officer and that he contacted a specific officer with a dog, it was inferable that the other officer was a trained detector dog handler and that the dog was a trained and certified drug detector dog. The dog’s positive final responses provided independent probable cause for the searches.
This is the second court in the recent past to hold that an affidavit need not contain much detail about the drug detector dog’s training and certification. However, an officer should provide the court with enough information to find that the dog is reliable. Generally, the affidavit should recite the dog’s training, certification and available history of demonstrated field reliability. Arcuri v. State, — A.3d —-, 2012 WL 3059385 (Del. 2012).
Detector dog resume not required in affidavit
Grupee was arrested for possession of crack cocaine and firearms during execution of a search warrant. An officer deployed a drug detector dog to sniff the exterior of a car parked at the home. Following a positive final response by the dog, the officer obtained a search warrant for the car. The subsequent search turned up a gym bag with ammunition, more cocaine and a bus ticket for Grupee.
Grupee claimed that the affidavit for the warrant to search the car was deficient because it did not state anything about the standards for training drug-sniffing dogs or about the particular dog’s success and error rate. The affidavit also did not cite any certification for the dog. A prior decision in the First Circuit, United States v. Meyer, 536 F.2d 963 (1st Cir. 1976), held that describing a detector dog as “trained” and as accompanied by a handler is sufficient to allow a judge to reasonably infer that the dog has “attained a high degree of proficiency in detecting the scent of narcotics.”
Giving the affidavit “a common sense and realistic reading,” the court held that it was sufficient to support probable cause. Although the preferable course would have been to recite training, field reliability and certification for the dog, the trial court could rightly infer that the dog was reliable.
The opinion was written by Supreme Court Justice David H. Souter, participating by designation on the court of appeals. United States v. Grupee, 682 F.3d 143 (1st Cir. 2012).
Stop based on visual estimate of speed overturned
A deputy visually estimated that Sowards was traveling 75 in a 70-mph zone. The angle of the deputy’s car made an accurate radar reading impossible. The deputy, a drug detector K9 handler, stopped Sowards and then deployed the dog for a vehicle exterior sniff. The dog gave a positive final response.
A search yielded 10 kilos of cocaine.
Sowards challenged the basis for the stop. The deputy testified that he was certified in radar operation and he had experience visually estimating speeds, but he did not point to any specific training in speed estimation. The deputy had not confirmed the speed by pacing or any other method.
During trial testimony, the deputy stumbled in cross-examination when he first testified that there are 12 feet in a yard and later amended his answer to four feet per yard. The court held that visual estimates of speeding alone will not constitute a lawful basis for a traffic stop unless the driver’s speed is significantly faster than the speed limit or the officer confirms the estimate by radar, pacing, or other corroborating method. One of the judges dissented, arguing that the trial court should consider the deputy’s practical experience in estimating speeds. United States v. Sowards, 2012 WL 2386605 (4th Cir. 2012).
Mere exit for highway during roadblock ruse not sufficient basis for a stop
Neff saw signs announcing a drug checkpoint and drug detector dog use ahead as he traveled on the highway. There was no roadblock. Officers were conducting a ruse operation (See Wallentine, The Respectable Roadblock Ruse, Police,
Neff exited the highway onto a rural gravel road. He turned around in a driveway and an officer stopped him. The officer noted that Neff’s license plate was from a distant county. When the officer told Neff that his behavior was suspicious, Neff volunteered that he had a crack pipe. A subsequent search of the car revealed 7 kilos of cocaine and $10,000 in cash.
In Illinois v. Wardlow, 528 U.S. 119 (2000), the Supreme Court upheld a detention based on a person’s nervousness and unprovoked flight from officers. Some courts have disfavored roadblock ruse stops based solely on a driver’s exit from the highway after seeing a checkpoint sign. However, any traffic violation (however slight) or articulable suspicious behavior may lead to a proper stop during a ruse operation. Exiting the highway at a rural exit is merely one factor to be considered in analyzing reasonable suspicion.
The court held that a stop that “relies solely on a driver’s decision to use a rural or ‘dead exit’ following checkpoint signs falls short of the requirement of individualized, articulable suspicion of criminal activity. . . . We hold that an officer must identify additional suspicious circumstances or independently evasive behavior to justify stopping a vehicle that uses an exit after ruse drug checkpoint signs.” Even though the court recognized that an officer’s training and experience must be considered in evaluating a driver’s actions, Neff’s behavior did not significantly deviate from the normal pattern of an innocent motorist and the stop was improper. United States v. Neff, 681 F.3d 1134 (10th Cir. 2012).
Installation and monitoring of GPS tracker requires warrant
In 2010, Xiphos reported on the GPS tracking case involving Jones and Maynard (see the Xiphos 2010 archive on the web). The U.S. Supreme Court today sided with the federal court of appeals and held that officers must obtain a warrant to place a GPS tracker on a suspect’s vehicle. The Court was unanimous in holding that installing the tracker and the long-term monitoring (28 days) was a search under the Fourth Amendment. A majority of five justices held that, “the Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
The Supreme Court did not consider whether the search was reasonable because the prosecutors did not make that claim in the lower court, thereby giving the Court leeway to deem the argument waived. The Court divided 5-4 over the proper analytical approach for GPS tracking. Justice Alito wrote a concurring opinion,joined by three other justices, that highlights the difficulties that the Court may encounter as technology advances and tracking by GPS-enabled cell phones or services such as OnStar become more commonplace. The Jones decision could also impact the analysis of the when and how officers may lawfully use cell site location information (see <http://www.aele.org/law/2011all02/2011-02MLJ401. pdf>). During oral argument in this case, justices asked about license plate recognition devices, Facebook monitoring and surveillance cameras.
The bottom line for officers is that installing a GPS tracker on a suspect vehicle now requires both probable cause and a warrant. U.S. v. Jones, — S.Ct. —, 2012 WL 171117 (U.S. 2012).
Search of cell phone call logs proper under inventory doctrine
Ochoa was arrested during a controlled delivery of a large amount of cocaine found during a traffic stop of a drug courier. Following the arrest, officers examined a cell phone found in his car. The phone contained evidence that Ochoa had telephoned the drug courier. The Fifth Circuit Court of Appeals had held in 2007, in United States v. Finley (see 2007 Xiphos archives), that a phone could be searched incident to a lawful arrest. Subsequent to the Finley case, the Supreme Court restricted the search incident to arrest doctrine in Arizona v. Gant. Some courts have relied on Gant to limit searches of phones incident to arrest.
The Fifth Circuit held that it did not need to decide whether Gant curtailed the Finley holding. The court held that the cell phone logs would have been inevitably discovered during an inventory of Ochoa’s vehicle. The court noted that the agency “has standard operating procedures calling for an inventory of a vehicle to protect the agency from claims of lost or stolen property. Indeed, pursuant to those procedures, agents began taking an inventory of Ochoa’s car shortly after the cell phone was seized. Further, there was at least a reasonable probability that the agents would have uncovered the cell phone, which had been ringing as one of the agents drove Ochoa’s car to the agency, during the inventory.” United States v. Ochoa, — F.3d —-, 2012 WL 104997 (5th Cir. 2012).
Xiphos (pronounced zee-phose) is a biweekly summary of recent court decisions about criminal procedure and other subjects important to law enforcement officers and administrators. The xiphos is a short double-edged sword used essentially as a backup weapon by ancient Greek warriors. This service is provided at no cost. To subscribe, send a message to Xiphos-subscribe@KenWallentine.com.
NOTE TO TROOPERS: The Xiphos email service is frequently blocked by the State of Utah. The State has experienced data breaches and other data losses and has announced plans to scrap it antiquated email system. Those plans are now delayed. Ironically, though the Xiphos service was primarily for Utah officers, most state officers can only receive Xiphos on non-state email systems. Consider subscribing with an email address other than a Utah.gov address until the state email has been updated.