Tuesday, February 28, 2017

No reasonable suspicion to detain travelers for dog sniff

Here's another good Fourth Amendment case for your suppression arsenal: United States v. Lopez, decided by the Tenth Circuit on Monday. In Lopez, the Court reversed the defendants' methamphetamine-conspiracy convictions, holding that the district court should have granted their motion to suppress.

A Kansas Highway Patrol Trooper stopped the defendants for speeding, gave them a warning, questioned them about their travel plans, and then asked them for consent to search the car. They refused. The trooper detained them anyway, waiting on a drug dog.

This detention was illegal, despite the trooper's claim that the defendants were nervous, said suspicious things, and had suspicious travel plans, and that the driver had only a temporary paper license (giving the trooper probable cause to arrest her for driving without a license). Some lessons from Lopez:

Nervousness: "[W]e have consistently assigned this factor limited significance because its measure is so subjective and innocent people can vary widely in how they respond to an encounter with police . . . . Only extreme nervousness can substantially contribute to reasonable suspicion."

Travel plans: "[W]e have generally been reluctant to give weight in the reasonable-suspicion analysis to unusual travel purposes, at least absent lies, inconsistencies, or the like."

Image result for traffic stop trooperDriver's license: The driver had a printed license receipt from the California DMV rather than an actual license. But the dispatcher confirmed for the trooper that the driver had a valid license. Once he had this information, the trooper should have known that the driver could not have been arrested for driving without a license. Kansas law prohibits convictions of that crime if the arrested person later produces a valid license. "An officer does not have probable cause to arrest a person for a crime when he knows she could not be convicted. See Brown v. Fisher, 251 F. App’x 527, 534 (10th Cir. 2007) (expressing doubt that officer could arrest driver for violation of this very statute when officer knew that driver was licensed); see also United States v. Edwards, 632 F.3d 633, 640 (10th Cir. 2001) (‘If the police learn information that destroys their probable cause to arrest a defendant, the arrest may become illegal.’)."

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