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Probably Not a Good Way to Avoid Reasonable Suspicion:
From United States v. Robinson, an unpublished 11th Circuit decision last week on whether the police had reasonable suspicion to prolong a traffic stop for a few minutes given their suspicion that the driver was a drug courier:
  After Robinson pulled the car over, he got out and went to the rear of the vehicle. Deputy Crowe asked Robinson for his driver's license, which Robinson provided. Crowe then enquired who owned the car and where Robinson was going. Robinson told Crowe that a friend of his, a stripper named "Fluff," had lent him the car to drive "Mouse" (Mills) to Delaware. When Crowe asked for the car's insurance and registration papers, Robinson told him that Mouse had them.
  Crowe went to the car, asked for Mills' real name, and requested the insurance and registration papers. When Mills complied, Crowe saw that the insurance on the car was valid but made out to "John Greggo."
It seems to me that if you're a drug courier driving a car registered to Mr. John Greggo, you should have a story ready to tell the police better than that a stripper named "Fluff" lent you her car to drive "Mouse" to Delaware.
John Greggo (mail):
Do I tell you how to write your little articles?
4.9.2008 2:10pm
OrinKerr:
Greggo, that was hilarious. Hope you got your car back!
4.9.2008 2:15pm
D.A.:
Your blurb doesn't require that the stripper be a female. How does "stripper" refute "John Greggo"?
4.9.2008 2:18pm
cirby (mail):
Actually, considering the term "fluffer" in the sex trade, "Fluff" could very easily be a male stripper name.

Or a "La Cage Au Folles" sort of stripper name, now that you mention it.
4.9.2008 2:21pm
Jay:
Glad to see my hometown of Richmond Hill make an appearance here. I guess the "purchased with seized drug funds" on the back of the police cars must have some truth to it.
4.9.2008 2:23pm
autolykos:
Wait, so changing lanes is illegal under Georgia law?

I don't see how this...


Robinson does not dispute that Deputy Crowe saw him move from the center lane of I-95 to the right lane and back again.


violates this...


Georgia law states: "A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety."
4.9.2008 2:37pm
Jason F:
So what's the lesson here? Don't be friends with strippers? Don't have friends with silly nicknames? Don't go to Delaware?
4.9.2008 2:38pm
33yearprof:
No, the lesson is old and simple. Don't drive while black on I-95.
4.9.2008 2:52pm
Dave N (mail):
So what's the lesson here? Don't be friends with strippers? Don't have friends with silly nicknames? Don't go to Delaware?
How about, if you are a drug mule, make sure you scrupulously follow all traffic laws so you don't get pulled over? Oh, and make sure the tail lights, headlights, and turn signals are working before you drive off.

Btw, the response from "John Greggo" made my day, particularlty since his linked e-mail address is "jgreggo@escobar.com".
4.9.2008 2:52pm
gab:
I don't see anything within the article that would lead police to believe there were drugs in the car prior to pulling the car over. The police asked the driver if they could search the car and he said "no." Yet, they called in a dog and the dog searched the car (sniffing around the outside) although the driver had already told officers he would not consent to a search.
4.9.2008 2:53pm
Angus:
This sets off my BS detector on so many levels. First off, if a police officer (or any car) comes up fast behind you and starts following you, it is perfectly reasonable to change lanes and let them pass you. And if they don't, you move back. No reason to make the stop IMO unless the driver was weaving drunkenly.

And we are supposed to believe that a drug sniffing dog unit was "coincidentally" less than 60 seconds travel time away when the traffic officer made the call for one? Horsepucky. It takes me 60 seconds just to get in my car, buckle my seatbelt, and start the car moving, let alone merge onto an interstate and drive somewhere.

My guess: the officer was drug hunting, saw two minorities in a car, decided to see if he could "spook" them, then called for a drug-sniffing dog before he even initiated the traffic stop.
4.9.2008 3:04pm
Dave N (mail):
Don't go to Delaware?
Well, I can advise you there really isn't much to see in Delaware, but that is hardly germane. However, neither was Jason F's comment, since the traffic stop occurred in Georgia.
No, the lesson is old and simple. Don't drive while black on I-95.
Is there any evidence, of any sort, that "Kevin Lavoy Robinson" is black (or, for that matter, that "Deputy Mark Crowe" is white)?
4.9.2008 3:04pm
Dave N (mail):
gab,

Police don't need consent for a dog to sniff the exterior of a motor vehicle. And once the dog alerts, that, alone, provides probable cause for the search of the automobile without a warrant or the consent of the driver.
4.9.2008 3:07pm
Roger Schlafly (www):
When someone drives a borrowed car, I suspect that it is fairly common for the driver to not know whose name is actually on the registration papers.
4.9.2008 3:26pm
Houston Lawyer:
I would say that stating that the car belonged to a stripper was tantamount to admitting that there were illegal drugs in the car. If criminals were smarter, they would stay in school, graduate and get better jobs. Then they could complain about having to pay back their student loans.
4.9.2008 3:42pm
SDProsecutor:
This was in all likelihood a pretext stop; law enforcement had information that the vehicle was being used to transport drugs, so they had a traffic officer pull in behind it to wait for reasonable suspicion to pull it over. The traffic officer had to wait awhile for the narcotics officer to arrive, leading to the prolonged detention question the Court faced.

But hey Angus, congratulations on coming up with a racially discriminatory guess. Perhaps learning a little more about law enforcement will chip away at your 'racist cop' fantasies.
4.9.2008 3:58pm
Jay:
"And we are supposed to believe that a drug sniffing dog unit was "coincidentally" less than 60 seconds travel time away when the traffic officer made the call for one? Horsepucky. It takes me 60 seconds just to get in my car, buckle my seatbelt, and start the car moving, let alone merge onto an interstate and drive somewhere."

Um, why would you be "supposed to believe" that? What difference does it make it if the canine unit was waiting nearby for just such an incident? Are the police supposed to keep drug dogs a minimum distance away from major highways so as not to arrive too quickly? If they did, of course, you'd be arguing that the delay unconstitutionally prolonged the stop.
4.9.2008 4:07pm
David M. Nieporent (www):
How about, if you are a drug mule, make sure you scrupulously follow all traffic laws so you don't get pulled over? Oh, and make sure the tail lights, headlights, and turn signals are working before you drive off.
The problem is that there's no way to scrupulously follow all traffic laws. For one thing, there are an infinite (approximately) number of them, and for another, many of them are so vague that they provide almost unf3ettered discretion on the part of the police.

And did I mention that there are an infinite number of them? I'm pretty good at obeying traffic laws -- at least those not involving speed limits -- but do I signal every time I change lanes? No. Do I come to a rolling stop occasionally at a stop sign at an empty intersection? Of course. Do I ever follow too closely? Whatever that means, yes. Unsafe driving? Careless driving? Improper passing? I'm sure I have, yes.

If you want to claim that this sort of vagueness is unavoidable or justifiable, that's one thing; if you want to claim that it's legitimate for cops to use these as a pretext to pull people over, do it. But don't pretend that it has anything to do with their driving.
4.9.2008 4:08pm
Bored2L:
This probably was a pretext stop, but considering the sheer number of traffic ordinances, there is no real way to stop that from happening. If the car had not changed lanes "illegally", they may have turned on a turn signal too early or too late or been driving too fast or too slow, or whatever else the police could find. Since the legality of the stop is based on objective reasonableness, as far as the Court is concerned, the fact that the stop was a pretext doesn't matter.

Whether this is a good thing, that I cannot answer.
4.9.2008 4:12pm
LarryA (mail) (www):
I live on a drug corridor. Through grapvine connections to law enforcement, I hear one of the fastest ways to make cops suspicious is "driving too legally."
4.9.2008 4:20pm
DCP:
You would be amazed at some of the things couriers do to draw attention to themselves - broken taillights, speeding, driving drunk, no insurance or registration, etc...

I'm surprised drug traffickers don't invest in a fleet of gently used Honda Accords, make sure everything is in working order, all the papers match up and then install some sort of device that prevents the car from going over 70 mph.

Then again, they're probably making so much of a profit off their product they could care less if police capture some of it.
4.9.2008 4:23pm
DJR:
It was better than the first story he came up with - That he was going to visit some friends, "Steering Wheel" and "Speedometer," and that the car beloged to another friend, "Seat Belt" and her brother, uh, "Wind Shield."
4.9.2008 4:59pm
LarryA (mail) (www):
I'm surprised drug traffickers don't invest in a fleet of gently used Honda Accords, make sure everything is in working order, all the papers match up and then install some sort of device that prevents the car from going over 70 mph.
Seventy is no longer the maximum speed limit. Anyone driving seventy across West Texas would raise immediate suspicion, if he didn't get run over first.
Then again, they're probably making so much of a profit off their product they could care less if police capture some of it.
Bingo. If the police confiscate a third of the smuggled drugs, the simple response is to import 150% of what the dealer can sell. The police get the extra 50%, and the dealer has 100% of what he needs to satisfy his customers.

The necessity for money-laundering laws indicate the business strategy is working just fine.
4.9.2008 5:54pm
Angus:
SDProsecutor,
If the police have information that the car is being used to carry drugs through tips and informants, they don't need to trump up a traffic stop. And the more I learn about law enforcement, the more I believe it is dominated by out of control thugs, many of whom are racist. Maybe it is true that the majority of police officers are decent people, but they still close ranks and support the worst ones.

Jay,
The court decision used the language that the dog unit "happened to be" nearby, implying that it was coincidence. They didn't say: "Law enforcement was running a staged episode and so had a dog unit ready to go." Even if the latter was true, it stretches credulity that it would take fewer than 60 seconds from the time of the call to the unit's arrival. The more logical explanation is that the officer stopping the car called them, then delayed to give it time to arrive, and lied to make it look more innocent.
4.9.2008 6:07pm
JoJo (mail):
About driving too legally - indeed, a lot of my friends used to run drugs up and down I-10, and they used to keep their cruise control at 3 over the limit. If you kept it at 1 below, with both hands on the wheel staring straight forward - the way no actual person drives - you'd find yourself pulled over for certain.

Once the cops suspect somebody - for whatever reason - the 'reason' for pulling them over is indeed a pretext, but also indeed, it is not hard to find one that is objectively reasonable and to have the dog car somewhere close by. In that regard, my friends in the drug trade always had white college kids - some of them in law school, actually - run their stuff, because the cops were far more likely to pull over a minority.
4.9.2008 6:09pm
kelvin mccabe:
Yes, the mysterious phantom drug courier profile - which magically transforms itself to any set of facts that happen to be present. Remember the old one's from the airplane courier days: Sat in the front of the plane, sat in the middle, sat in the back. Paid cash for his tickets. Paid credit card. Flew one way, flew round trip. Checked luggage, didn't check luggage. Etc...etc..

And if it was a pre-textual stop, that is legal so long as there was some objective reason for the stop, no matter how flimsy. Cops dont need consent to do a dog sniff - since the sup ct held a dog sniff isnt even a search, despite the fact that the dog sniff is for all intents and purposes the same exact thing as a search, only with a powerful sniffer instead of hands with opposable thumbs rummaging through your stuff.

And remember, the case that allowed cops to do said dog sniff during any and all valid traffic stops was Illinois v Caballes, wherein i believe poor Mr Caballes and his load of pot were travelling at the most criminal of speeds -67 in a 65 mph on an interstate highway with a 65mph posted speed limit. Oh, THE HORROR!! Plenty of reasonable suspicion there. Especially considering Caballes was wearing a suit. Thats gotta be in a drug courier profile somewhere - driving with a tie on - everything else is!!

It wouldnt be so frustrating if the fricking judges didnt buy this courier baloney almost every time. What a racket this drug war is, and what a mess it has caused to our beloved Constitution.
4.9.2008 6:45pm
one of many:
I see blantant discrimination on the part of the judges in the ruling, apparently a large part of the justification for the detention was based upon the female stripper "Fluff" having the legal name of John Greggo. While not as common as born female and currently female strippers, a transgendered female could certainly bear the legal name John Greggo and own a car registered under such a name. Is being a trqansgendered female sufficent cause for detention under suspicision of being a drug courier, it is not and the detention of Crowe for using a car belonging to the prusmtive transgendered John "Fluff" Greggo is just as unreasonable.
4.9.2008 7:12pm
gab:
Dave N said:



Police don't need consent for a dog to sniff the exterior of a motor vehicle. And once the dog alerts, that, alone, provides probable cause for the search of the automobile without a warrant or the consent of the driver.


I'm fully aware that the police don't need consent to sniff the outside of a vehicle. Nevertheless, to say that's not a "search" is absurd on its face. Just because courts, in their endless war on drugs, say it's legal, doesn't really make it just.
4.9.2008 7:15pm
gab:
Editing the above post, police don't need consent to have A DOG sniff the outside of a vehicle. In no way do I condone the POLICE sniffing the vehicle!
4.9.2008 7:17pm
George Weiss (mail) (www):
if the stop really was based on the lane change thing it once again brings up the question of whether terry stops can be pretexual (i.e. whether a whren stop can also be a Whren stop)

Reasonable suspicion is required for a terry stop when its a regular law that they have suspicion of being violated.

Whren allows a pretextual stop on probable cause of a traffic law. (even if what they are really after is a more serious crime)

whether these combine to mean that if its a prextexual stop all you need is reasonable suspicion of a "traffic' law is actually not yet decided by the supreme court and is the subject of

a recent MD high court decision struggled with this issue: in state v williams 934 A.2d 38

it devotes a long essay to the question of when the pretext is only a traffic law and not a regular law..whether you need reasonable suspicion or probable cause.

the majority in line with the majority of courts belive that it is reasonable suspicion even when the when pretext is only a traffic law and not a drug law or somthing.

they cite:
United States v. Sanchez-Pena, 336
F.3d 431 (5th Cir. 2003); United Sta tes v. Hill, 195 F.3d 258, 26 4 (6th Cir. 1999); United
States v. Navarette-Barron, 192 F.3d 786, 79 0 (8th Cir. 1999); United States v. Lopez-
Soto, 205 F.3d 1101 (9th Cir. 2000); United States v. Chanthasouxat, 342 F.3d 1271 (11th
Cir. 2003); State v. Chavez, 668 N.W .2d 89 (S.D . 2003); State v. Bohannon, 74 P.3d 980
(Haw. 2003); and cf. State v. Crawford, 67 P.3d 115 (K an. 2003).

so that appears to be the law in the 8th 9th 6th 11th and 5th circuits at least.

also in the context of this analysis of saying that when doesn't meant that PC is necessary when its a traffic law pretext...the 9th cir case United States v. Lopez-
Soto, 205 F.3d 1101 (9th Cir. 2000) says that:

"Moreover, none of our sister circuits, either before or after Whren, has concluded that a traffic stop must be justified by more than reasonable suspicion. Where the facts before the court would satisfy both reasonable suspicion and probable cause, many of the more recent cases echo the language in Whren and simply analyze the facts for probable cause, see, e.g., United States v. Sanders, 196 F.3d 910, 913 (8th Cir.1999); United States v. Brown, 188 F.3d 860, 864 (7th Cir.1999); United States v. Jones, 185 F.3d 459, 464 (5th Cir.1999); United States v. Wellman, 185 F.3d 651, 656 (6th Cir.1999), but none of these cases suggests that probable cause is the minimum threshold for constitutionally permissible police action in making a traffic stop. In fact, some circuits have explicitly held, post- Whren, that reasonable suspicion is all the Fourth Amendment requires. See, e.g., United States v. Hill, 195 F.3d 258, 264 (6th Cir.1999); United States v. Navarrete-Barron, 192 F.3d 786, 790 (8th Cir.1999); United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir.1999). We join those circuits and reaffirm*1105 that the Fourth Amendment requires only reasonable suspicion in the context of investigative traffic stops."


so while the supreme court hasn't decided whether a whren stop on a pretext of a traffic law only requires PC or RAS...the circuit courts are almost unanimously going the reasonable suspicion way...which is logical since whren doesn't explicitly reverse terry.

the 11th is the circuit we are in-so the court is follwing its own precedent in combining whren and terry.

of course-i think cases like these show why, from a normative view, terry and whren may not be a good combination.
4.9.2008 7:51pm
another commenter:

I'm fully aware that the police don't need consent to sniff the outside of a vehicle. Nevertheless, to say that's not a "search" is absurd on its face.

Gab: Indeed, the S. Ct. has said that a dog sniff is not a search because it does not reveal any private details - it only reveals the presence or absence of contraband, and you don't have a privacy interest in contraband. Since a dog sniff is not a search, no justification is needed, but justification is needed to detain the driver long enough to get the canine unit on location.

If, on the other hand, a dog sniff could reveal the presence/absence of lace panties, then it presumably would be a search.
4.9.2008 8:32pm
Jay:
one of many--Are you familiar with Occam's Razor?

Others--If people (rather than dogs) could smell drugs, would it still be a search to walk around smelling for them outside the car? Is it a search to smell booze on someone's breath? What's the distinction? If your contraband is emitting scent outside the confines of your property (i.e., your car), then what's being searched is the air, not your property.
4.9.2008 8:43pm
Dave Hardy (mail) (www):
Law enforcement is made much simpler by the fact that most criminals are awfully stupid. Cases I personally am familiar with:

Drug courier is pulled over for pretext traffic stop, emerges from car with personal bag of marihuana in pocket. When he is told a drug-sniffing dog is coming, he runs from the scene, throwing the baggie away within sight of the officers.

The dealer who hired him learns, thru discovery in that case, that authorities are onto him, in great detail. (Supposedly thru an anonymous tip -- whatever the source, it knew exactly when a load would leave his property, the vehicle that would carry it, and where it was going). He continues to deal for another year before he is arrested. Oh, and the proceeds were laundered by investing them in realty and in bank accounts, both easily traced.

Dealer chooses as his courier, across the Mexican border, a Masschusetts resident whose car has MA plates. He stays in Mexico only 48 hours. Asked where he went, he gives a location several hundred miles down in Mexico, where he couldn't have been more than half a day. Asked why he drove all the way to Mexico, he replies to visit some friends. Upon being asked who they were, he cannot summon up a name.

Or a case related to me by Park Police attorneys: officer pulls over speeding sportscar on Geo Washington Parkway. Office walks up, ticket ready, and is about to ask for the driver's license, when the driver says "OK, you got me fair and square," and hands officer a roll of $100 bills and a big bag of cocaine.
4.9.2008 8:53pm
another commenter:
Jay:

My knowledge of 4A is limited, but the distinction with a dog sniff is not about the odors emanating from the outside, but it is based upon information revealed. For example:

US v. Jacobson held that a chemical test on a white powder was not a "search" because the test only indicated whether the powder was or was not contraband (but the testing was a seizure).

Kyllo v. United States -- officers "searched" a home when, from the street, they used a thermal imaging device to determine the exterior temperature of a home's walls despite that they were only measuring heat emanating from the outside of the walls because the device revealed intimate details of the home, namely internal temperature.

In answer to your queries, someone walking around the outside of a car sniffing for drugs would not be a search because it doesn't reveal any private information. I don't think that it is a dog doing the sniffing is relevant.

Smelling booze on someone's breath might be a gray area -- you could argue that the breath, which people are always exhaling and thus exposing to the public, is like a characteristic, like eye color or voice pattern, and thus smelling someone's breath would not be a search because there is no privacy interest in something you regularly expose to the public.
4.9.2008 9:02pm
markm (mail):
That it is a dog doing the sniffing should be relevant because there's no way to cross examine a dog. Did it alert on the smell of marijuana, bacon, or female dog in heat? A cop can testify as to what he smelled (although they ought to be trained that alcohol is odorless, what they might smell on someones breath are other volatile substances often found in alcoholic beverages).

I'm suspicious of law enforcement testimony about the specificity and accuracy of their trained dogs - especially since:

1) They testify that each dog is trained to alert on only one substance - and yet they bring just one dog to sniff, not four different ones trained for MJ, heroin, cocaine, and meth.

2) As part of increased security after 9/11, they supposedly deployed many trained dogs at airports to sniff luggage for explosives - and there was a sudden increase in the number of drug shipments found, but no explosives. Were they lying about the dog's specificity, or about the kind of dog they brought? And if they lied about the second, why believe them about anything else?
4.9.2008 10:15pm
S.C. Public Defender:
As a judge told one of my clients during a plea not to long ago......"Did you know that putting illegal substances in your car causes the license plate light to quit working?" (Said pretext being a favorite of our local "drug task force")

There's a little town that border's I-95 here in SC where the town police (yes, the town police, not the highway patrol) patrol the interstate w/the drug dog in the car allready.
4.9.2008 10:18pm
gwinje:
Alcohol is odorless? hmm
4.9.2008 11:03pm
Dave N (mail):
S.C. Public Defender,

I had a very conservative judge say, on the record as he was suppressing evidence, "Why on earth does the highway patrol need a dog?"

markm,

My understanding is that a dog can be trained to detect more than one odor--a sniffer dog, for example, can detect marijuana, cocaine, and meth. It is all a matter of training the dog to "alert" when it detects an odor that will earn the dog a reward from his handler.
4.9.2008 11:08pm
Fox2! (mail):
At least historically, drug dogs were trained to alert (they get excited) in a different manner than explosives dogs (they lay down). That may have changed, though.
4.10.2008 12:03am
LarryA (mail) (www):
At least historically, drug dogs were trained to alert (they get excited) in a different manner than explosives dogs (they lay down). That may have changed, though.


I hope it hasn't changed. Explosives+Excited is not a good idea.
4.10.2008 12:20pm
hattio1:
DaveN says;

I had a very conservative judge say, on the record as he was suppressing evidence, "Why on earth does the highway patrol need a dog?"


Heck, if he was suppressing he couldn't have been that conservative.
4.10.2008 6:54pm
SFC B (mail) (www):
Dogs that detect explosives are usually trained to go still when they detect something.

Although the dog itself might not be interviewable, the dog's training records and history are. If the dog has a spotty history at identifying the substances it's supposed to identify, then I'd think a lawyer would be able to discover that.
4.10.2008 7:52pm
Steve2:
Ah, the "what's a search" issue. I've always been annoyed that the courts haven't given the word "search" the same legal meaning it has in vernacular English: "an effort to gain information". Leave the focus on the act of gathering information (bringing the dog up) rather than the subject of the information gathering (contraband v. non-contraband).

Or to do it "alcohol on the breath"-style: it isn't a search if you're talking to someone at normal conversational distance and smell booze on their breath, but it is a search to lean forward and sniff at them.
4.10.2008 8:53pm
Dave N (mail):
Hattio,

Trust me, this particular judge is about as conservative as they come. 16 years as a rural district attorney, where he personally put two people on death row.

As a judge, I have not seen him bat an eye as he sentenced people to extraordinarily long prison sentences. No one, and I mean no one, will think he is soft on crime.

That is why I thought his comments was relevant on this thread.
4.11.2008 12:26am