Category Archives: Pretext

Bellingham Police Department Conducts Distracted Driving Emphasis

Bellingham Defense Attorney, Cell Phone, Distracted Driving, Fourth Amendment, Mount Vernon Criminal Defense Attorney, police, Pretext, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

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Put the cell phone away.

The Bellingham Police Department tweeted and facebooked notice that there will be a distracted driving emphasis on Friday, August 16th from 10:00am-2:00pm. Areas of emphasis are Lakeway/Ellis Streets and Holly Street to State Street.

Distracted driving — when drivers eat, put on makeup or text — causes more than 3,000 deaths a year. The National Highway Traffic Administration says it also costs $46 billion annually for everything from injuries to vehicle repairs, and of course, lost productivity due to death. With the exception of Montana and Arizona, texting while driving is illegal in every state, but unless police catch you in the act, it can be very hard to prove.

Additionally, depending on the circumstances, officers may develop probable cause to conduct a DUI investigation and/or search your vehicle for contraband or evidence of a crime.

Please contact my office if you, a friend or family member face criminal charges after being stopped for distracted driving. The charges could be dismissed if the search was pretextual and/or unlawful. Hiring a competent and credible defense attorney who is fluent in pretrial motions practice is the first and best step toward getting justice.

Drunk Bicycling

Bellingham Defense Attorney, DUI, False Arrest, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Pretext, Search and Seizure, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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Great article by traffic reporter Doug Dahl of the Bellingham Herald reveals that it’s legal to text while riding bike on a public road. In short, Washington’s distracted driving law applies to any person that is driving a motor vehicle on a public highway.

“Since a bike isn’t a motor vehicle, this law, as I understand it, doesn’t apply,” says Mr. Dahl. “When it comes to texting (arguably one of the more dangerous behaviors on the road) cyclists get a pass.”

Mr. Dahl is correct. While some states do have laws against cycling while impaired, Washington is not one of those states. In City of Montesano vs. Wells, the WA Court of Appeals reversed the conviction of a man charged with DUI while riding a bicycle and held the original intent of DUI laws did not include bicycles. The Court reasoned that because bicycles do not have the force and speed of cars, a drunk bicyclist is not capable of causing the tremendous “carnage and slaughter” associated with impaired driving.

My opinion? Although it’s not a wise decision to text while cycling, police cannot stop or arrest bicyclists for this traffic offense alone. In State v. Ladson, the WA Supreme Court held that our State Constitution forbid the use of pretext as a justification for a warrantless search or seizure. Applied here, in other words, police cannot pull you over to conduct an unlawful pretext search for weapons, drugs or any other contraband if they see you merely texting while riding a bicycle.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member are pulled over, searched and/or arrested for texting while riding a bicycle. Hiring an effective and competent defense attorney is the first and best step toward justice.

Signalling Turns

Bellingham Defense Attorney, DUI, law enforcement, misdemeanor, Mount Vernon Criminal Defense Attorney, Pretext, Probable Cause, Reckless Driving, Skagit County Criminal Defense, Washington Court of Appeals, Washington State Patrol, Whatcom County Criminal Defense, , , , , ,

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In State v. Brown, the WA Court of Appeals held that a driver, who moved left from a middle lane to a dedicated left turn lane while signaling his intention to change lanes, is not required to reactive his turn signal before turning left from the reserve lane unless public safety is implicated. Therefore, evidence discovered when a driver is stopped for failing to signal a turn when public safety is not implicated must be suppressed.

BACKGROUND FACTS

On the evening of March 22, 2015, Trooper Acheson of the WA State Patrol patrolled the streets of Kennewick. At 10:15 p.m., while traveling eastbound on Clearwater Avenue, Trooper Acheson saw Mr. Brown driving a Toyota Tundra, turn right from Huntington Street onto Clearwater Avenue. During the turn, the left side tires of the Tundra, a large pickup, crossed the white dashed divider line between the two eastbound lanes by one tire width for a brief moment, after which the vehicle fully returned to its lane of travel. Brown’s diversion across the dividing line did not endanger any travel. Acheson observed Brown’s tires cross the white dashed divider line, and he continued to view Brown’s driving thereafter.

Shortly after entering Clearwater Avenue, Mr. Brown signaled his intent to change lanes, and to move to the left or inner eastbound lane, by activating his left turn signal that blinked numerous times. Brown entered the inner lane of the two lanes.

Soon, Mr. Brown approached the intersection of Clearwater Avenue and Highway 395, where the eastbound lanes widen to three lanes. The innermost of the three lanes becomes a designated left turn only lane. Brown again wished to change lanes so he could turn left. Brown signaled his intent to move left into the dedicated turn lane. Brown maneuvered his vehicle into the dedicated turn lane, at which point the left turn signal cycled-off.

Mr. Brown stopped his vehicle in the dedicated left turn lane while awaiting the light to turn green. He did not reactivate his turn signal. Trooper Acheson pulled behind Brown. No other traffic was present on eastbound Clearwater Avenue. When the light turned green, Brown turned left onto northbound Highway 395. Trooper Mason Acheson then activated his patrol vehicle’s emergency light and stopped Brown.

Trooper Acheson stopped David Brown based on Brown’s crossing the eastbound lanes’ divider line during his turn from Huntington Street onto Clearwater Avenue. He did not stop Brown based on Brown’s failure to signal his left turn onto Highway 395. After stopping Brown, Trooper Acheson investigated Brown for suspicion of driving under the influence of intoxicants (DUI). Acheson arrested Brown for DUI.

Brown filed a motion to suppress evidence garnered from the stop of his car by Trooper Acheson. The court concluded that, because Brown violated no traffic law, Trooper Acheson lacked probable cause to initiate the traffic stop. Therefore, the court suppressed all evidence gained from the stop and thereafter dismissed the prosecution.

The Prosecutor appealed the dismissal to the superior court. According to the superior court, David Brown violated RCW 46.61.305(2), which requires a continuous signal of one’s intent to turn during the last one hundred feet before turning left. Because Trooper Mason Acheson observed Brown’s failure to continuously signal before turning left onto the highway, Acheson gained reasonable suspicion of a traffic infraction. The superior court remanded the case to the district court for further proceedings.

Mr. Brown appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that RCW 46.61.305(2) declares that a driver must, “when required,” continuously signal an intention to turn or cross lanes during at least the last one hundred feet traveled before turning or moving lanes. This appeal asks if this statute compels a driver, who moved left from a middle lane to a dedicated left turn lane while signally his intention to change lanes, to reactivate his turn signal before turning left from the reserved turn lane.

“We hold that the statute only requires use of a signal in circumstances that implicate public safety. Because the circumstances surrounding David Brown’s left-hand turn from a left-turn-only lane did not jeopardize public safety, we hold that Trooper Acheson lacked grounds to stop David Brown’s vehicle.”

With that, the Court of Appeals reversed the superior court, reinstated the district court’s grant of David Brown’s motion to suppress and dismissed the charge of driving while under the influence.

My opinion? Good decision. It makes sense that unless public safety is an issue, police officers shouldn’t have probable cause or reasonable suspicion to pull over a vehicle that’s clearly in the left-turn lane even though their vehicle turn signal is not activated.

Please contact my office if you, a friend or family member face criminal charges of DUI, Reckless Driving, Driving While License Suspended or other criminal traffic violations.

Racial Profiling of Latinos in LA County

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Fourth Amendment, law enforcement, police, Pretext, Race & Law, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Excellent article by Joel Rubin and Ben Poston of the LA Times examines a disturbing trend. Apparently, more than two-thirds of the drivers pulled over by the Domestic Highway Enforcement Team were Latino, according to a Times analysis of Sheriff’s Department data. And sheriff’s deputies searched the vehicles of more than 3,500 drivers who turned out to have no drugs or other illegal items, the analysis found. The overwhelming majority of those were Latino.

Several of the team’s big drug busts have been dismissed in federal court as the credibility of some deputies came under fire and judges ruled that deputies violated the rights of motorists by conducting unconstitutional searches.

The Times analyzed data from every traffic stop recorded by the team from 2012 through the end of last year — more than 9,000 stops in all — and reviewed records from hundreds of court cases. Among its findings:

  • Latino drivers accounted for 69% of the deputies’ stops. Officers from the California Highway Patrol, mainly policing traffic violations on the same section of freeway, pulled over nearly 378,000 motorists during the same period; 40% of them were Latino.
  • Two-thirds of Latinos who were pulled over by the Sheriff’s Department team had their vehicles searched, while cars belonging to all other drivers were searched less than half the time.
  • Three-quarters of the team’s searches came after deputies asked motorists for consent rather than having evidence of criminal behavior. Several legal scholars said such a high rate of requests for consent is concerning because people typically feel pressured to allow a search or are unaware they can refuse.
  • Though Latinos were much more likely to be searched, deputies found drugs or other illegal items in their vehicles at a rate that was not significantly higher than that of black or white drivers.

From top to bottom: L.A. County Sheriff’s Deputies search a motorist’s suitcase. Also a deputy uses a device for measuring density to search for hidden drugs and clutches some tools he uses to perform vehicle searches. (Myung J. Chun / Los Angeles Times)

The L.A. County Sheriff’s Department said that racial profiling plays no role in the deputies’ work and that they base their stops only on a person’s driving and other impartial factors.

In December, Sheriff Jim McDonnell heaped praise on the team, ticking off its accomplishments in a lengthy statement. “The importance of this mission cannot be overstated,” the sheriff said.

But several legal and law enforcement experts said the department’s own records strongly suggest the deputies are violating the civil rights of Latinos by racially profiling, whether intentionally or not.

“When they say, ‘We’re getting all these drugs out of here,’ they are not taking into account the cost,” said David Harris, a law professor at the University of Pittsburgh who studies racial profiling by police. “They are sacrificing their own legitimacy in the community as a whole and the Latino community in particular.”

Kimberly Fuentes, research director for the California League of United Latin American Citizens, described The Times’ findings as “extremely disturbing and troubling” and said the advocacy organization would demand a meeting with Sheriff’s Department officials.

“These findings risk tarnishing any trust between the Sheriff’s Department and the Latino community,” Fuentes said.

My opinion? A pullover and search of your vehicle is unlawful if the reason for the pullover/search is racial profiling. Racial profiling is the practice of targeting individuals for police or security detention based on their race or ethnicity in the belief that certain minority groups are more likely to engage in unlawful behavior. Examples of racial profiling by federal, state, and local law enforcement agencies are illustrated in legal settlements and data collected by governmental agencies and private groups, suggesting that minorities are disproportionately the subject of routine traffic stops and other security-related practices.

Also, pretextual searches are also unlawful. Pretext is an excuse to do something or say something that is not accurate. Pretexts may be based on a half-truth or developed in the context of a misleading fabrication. Pretexts have been used to conceal the true purpose or rationale behind actions and words. A pretextual search and arrest by law enforcement officers is one carried out for illegal purposes such as to conduct an unjustified search and seizure.

Please contact my office if you, a friend or family member was charged with a crime after being racially profiled and/or pulled over for unlawful pretext. I provide zealous representation to all defendants facing these circumstances.

Pretext Traffic Stop

Bellingham Defense Attorney, Constitutional Rights, Fourth Amendment, law enforcement, No Contact Order, police, Pretext, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Hendricks, the WA Court of Appeals held that a traffic stop for Failure to Transfer Title was not unlawfully pretextual because the stop was initiated based upon running license plates as vehicles passed him and the deputy did not recognize the vehicle’s occupants until after initiating the traffic stop.

BACKGROUND FACTS

Ms. Ciulla was named as a protected party in a no contact order issued against
Hendricks. On September 8, 2016, the State charged Hendricks with Violation of a No-Contact Order, alleging that he knowingly had contact with Ciulla. Hendricks filed a CrR 3.6 motion to suppress evidence seized from the traffic stop leading to his arrest, asserting that there was no lawful basis for the traffic stop.

At the CrR 3.6 hearing, Clallam County Sheriff’s Deputy Federline testified that he
was on duty on the evening of September 7, 2016 when he saw a Mazda pickup truck and ran the license plate of the vehicle. Upon his check of the truck’s license plate, Deputy Federline found that more than 15 days had passed since ownership of the vehicle had changed, but the title had not been transferred.

When the truck passed, Deputy Federline also saw that the truck’s back license plate was partially obscured by a trailer hitch. Deputy Federline conducted a traffic stop of the truck. When Deputy Federline made contact with the vehicle’s occupants, he recognized Ciulla in the front passenger seat and Hendricks in the back seat. Deputy Federline arrested Hendricks. Following this testimony, Hendricks argued that Deputy Federline lacked authority to stop the truck based either on a failure to timely transfer title or on an obscured license plate.

The trial court denied Hendricks’s motion to suppress. Following the trial court’s denial of his CrR 3.6 suppression motion, Hendricks waived his right to a jury trial, and the matter proceeded to bench trial on a stipulated record. The trial court found Hendricks guilty of violation of no contact order. The trial court also found that Hendricks committed his offense against a family or household member. Hendricks appealed from his conviction.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution generally prohibit searches and seizures absent a warrant or a recognized exception to the warrant requirement. One such exception to the warrant requirement is an investigative stop as set forth in Terry v. Ohio, a landmark search and seizure case which applies to traffic violations. Also, a law enforcement officer may conduct a warrantless traffic stop if the officer has a reasonable and articulable suspicion that a traffic violation has occurred or is occurring.

The court rejected Hendricks’s arguments that the failure to comply with RCW 46.12.650(5)(a)’s requirement of transferring title within 15 days of delivery of a vehicle does not constitute a traffic infraction under RCW 46.63.020 because the failure to timely transfer title is not a parking, standing, stopping, or pedestrian offense.

“The plain language of RCW 46.63.020 shows that the legislature intended to treat the failure to timely register a vehicle’s title as a traffic infraction and, thus, the trial court correctly concluded that Deputy Federline had an articulable suspicion justifying his stop of the vehicle in which Hendricks was riding as a passenger.”

Next, the Court of Appeals addressed whether the stop was unlawfully pretextual.

Pretextual Traffic Stops

The Court reasoned that Article I, section 7 of the Washington Constitution prohibits pretextual traffic stops. State v. Ladson, 138 Wn.2d at 358. A pretextual traffic stop occurs when a law enforcement officer  stops a vehicle in order to conduct a speculative criminal investigation unrelated to enforcement of the traffic code. Ladson, 138 Wn.2d at 349. Whether a given stop is pretextual depends on the totality of the circumstances, “including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.” Ladson, 138 Wn.2d at 359.

I t further reasoned that a traffic stop is not pretextual even where the officer has an additional motivation for conducting the stop apart from a suspected traffic violation, so long as the officer’s purported motive in investigating a suspected traffic violation was an actual, conscious, and independent reason for the stop. State v.
Arreola, 176 Wn.2d 284, 299-300, 290 P.3d 983 (2012).

“Hendricks suggests that Deputy Federline had suspected the vehicle’s occupants of being
involved in drug activity and used the failure to timely transfer title as a pretext to investigate the vehicle and its occupants for drug related offenses,” said the Court. “This is pure speculation without any support in the record.”

The Court reasoned that Deputy Federline was the only witness at the CrR 3.6 hearing. Furthermore, the deputy testified that he was parked at an intersection running the license plates of southbound traveling vehicles when he saw the vehicle at issue. Deputy Federline began to initiate his traffic stop after finding that the title to the vehicle at issue was not timely transferred following a change in ownership. Finally, Deputy Federline recognized Hendricks and Ciulla only after initiating the traffic stop and contacting the driver of the vehicle.

“In short, Hendricks fails to identify any evidence in the record that would have supported a claim that Deputy Federline’s traffic stop was a pretext to investigate a crime unrelated to a suspected traffic infraction.”

Consequently, the Court held that because the record lacked of any evidence supporting a claim that Deputy Federline conducted a pretextual traffic stop, Hendricks can show neither deficient performance nor resulting prejudice from defense counsel’s decision to decline raising the issue at the CrR 3.6 hearing.  Accordingly, the Court of Appeals affirmed Hendrick’s conviction.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Bellingham’s Most Dangerous Intersections

Bellingham Defense Attorney, Driving While License Suspended/Revoked, Driving With Wheels Off Roadway, Drowsy Driving, Drug Offenses, Drug Recognition Expert, DUI, Eluding, law enforcement, Physical Control DUI, police, Pretext, Reckless Driving, Skagit County Criminal Defense, Studies, Traffic Infractions, Whatcom County Criminal Defense, , , , ,

Informative article by David Rasbach of the Bellingham Herald reports on statistics provided by the Bellingham Police Department Traffic Division showing Bellingham’s most dangerous intersection.

Apparently, at least in terms of the sheer number of accidents, West Bakerview Road and Northwest Drive reigns as the most dangerous intersection in the city.

In a distracted driving study conducted by its traffic division from January 2016 through June 2017, Bellingham Police received 1,350 reports of accidents within city limits, regardless of severity or injury. Of those, 43 accidents occurred at the intersection of Bakerview and Northwest — the highest total of any intersection in town.

Rasbach also reports that three of the top four most dangerous intersections during the 18-month study were in that same corridor: West Bakerview Road and Eliza Avenuehad the third highest accident total with 22 wrecks, while West Bakerview Road and Cordata Parkway was fourth highest with 18.

The only intersection breaking up Bakerview’s stranglehold on the top of Bellingham’s dangerous intersections list — Lakeway Drive and Lincoln Street, which had 25 reported accidents — is very similar, with two busy shopping centers and a school occupying three of the four corners. Nearby Lakeway Drive and King Street tied for sixth-most dangerous with Woburn Street and Barkley Boulevard with 14 reported accidents, each.

Also, the lone roundabout at Cordata Parkway and West Kellogg Road had 16 accidents reported.

Please contact my office if you, a family member or friend are criminally charged for traffic-related incidents. Unfortunately, it’s very easy to be charged with DUI, Reckless Driving, Negligent Driving, Driving While License Suspended, Eluding and/or numerous traffic citations. Bellingham’s dangerous intersections only exacerbate the situation and make it more likely that an unlawful pretextual pullover will happen.

Most of all, drive safe!

Inventory Searches of Cars

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Federal Crimes & Prosecutions, Inventory Searches, Pretext, Probable Cause, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

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In United States v. Johnson, the Ninth Circuit Court of Appeals held that a suspicionless inventory search is only proper when it is performed to secure and to protect an arrestee’s property and to protect the police department against fraudulent claims of lost or stolen property. Evidence removed from the defendant’s car could not be justified under the inventory-search doctrine where the officers explicitly admitted that they seized the items in an effort to search for evidence of criminal activity.

BACKGROUND FACTS

On April 10, 2014, Multnomah County Sheriff’s deputies located Mr. Johnson—who had an outstanding warrant for his arrest based on a post-prison supervision violation—at the Clackamas Inn, just south of Portland, Oregon. The deputies followed Johnson to a residence in the nearby town of Gladstone and called Portland Police Bureau (PPB) Officers Corona and Ables for assistance in arresting him.

The officers did not approach Johnson at the residence, but instead waited outside. After about 20 minutes, Johnson left, and again the officers followed him. At a nearby intersection, the officers finally stopped Johnson by loosely boxing in his car; one car approached Johnson from behind while another approached from the front, effectively blocking Johnson’s ability to drive away. The cars all came to a stop within a few feet of each other, and although there was enough room for Johnson to pull his car to the side of the road, he instead parked in the lane of traffic, disrupting the flow of passing cars. When approached by the officers, Johnson could not provide proof of insurance for the car, which he was borrowing, nor could he give anything other than the first name of the car’s owner. Johnson did not know how the police could contact the owner.

The officers arrested Johnson on the outstanding warrant. After the arrest, the officers searched Johnson and found a folding knife in his front pocket, $7,100 in cash in $20 and $100 denominations in his rear pants pocket, and $150 in cash in his wallet. Johnson said that he had recently inherited the $7,100 and that he planned to purchase a car with it.

Because Johnson’s car was blocking traffic and because Johnson could not provide contact information for the car’s owner, the officers ordered it to be towed and impounded, pursuant to PPB policy. Prior to the tow, the officers conducted an inventory search of the car, again pursuant to local policy. From the interior of the car, the officers collected a combination stun gun and flashlight, a glass pipe with white residue, a jacket, and two cellphones. From the trunk, the officers collected a backpack and a duffel bag. Officer Corona testified that, when he moved the backpack and duffel in order to search for other items in the trunk, the bags felt heavy and the backpack made a metallic “clink” when he set it down on the pavement. PPB stored each of the seized pieces of property in the County property and evidence warehouse, and the $7,100 was taken into custody by the County Sherriff’s Office. Officer Corona recorded each item seized on an accompanying arrest report; the Sheriff’s Office prepared a property receipt for the $7,100 in seized cash.

A week later, Officer Corona submitted an affidavit to secure a warrant to search the seized backpack, duffel bag, and cell phones. The affidavit referred to a 2009 police report (which Corona read after arresting Johnson) that stated Johnson had previously been found with cash, weapons, and drugs in a safe concealed in his vehicle. Officer Corona’s affidavit stated that, based on the circumstances of Johnson’s recent arrest, he had probable cause to believe the bags seized from the trunk would contain similar lockboxes, and that the phones would contain evidence of drug dealing.

A warrant was duly signed by a local magistrate judge, and a search of the backpack revealed a small safe containing two bags of methamphetamine, drug-packaging materials, syringes, and a digital scale. The duffel bag contained Johnson’s personal items, and one of the cellphones contained text messages regarding drug trafficking.

Johnson was indicted on one charge of possession with intent to distribute methamphetamine in an amount of 50 grams or more, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii).

Before trial, Johnson moved to suppress the evidence found in the car and on his person at arrest. Primarily, Johnson challenged the evidence supporting the warrant to search the backpack and cellphones, arguing that it did not amount to probable cause. Johnson also argued that the officers unlawfully manipulated the bags they seized from the car in order to get a sense for what they might contain and that the inventory search of his car was invalid.

The federal district court denied the motion, concluding that there was probable cause to stop and to arrest Johnson on the outstanding warrant, the officers validly impounded Johnson’s car because it was blocking traffic, the subsequent inventory of the vehicle was “lawful because PPB mandates officers to conduct an inventory of impounded vehicles,” and the search warrant was supported by probable cause.

At trial, the government introduced the evidence found in Johnson’s car and on his person, with a particular focus on the items of evidence found in the backpack, the messages from the cellphone, and the $7,100 in cash. The jury found him guilty.

Approximately four months later, Johnson filed a motion for new trial on the basis of, among other things, two pieces of supposedly newly discovered evidence: (1) evidence showing that Johnson had indeed recently received an inheritance; and (2) a receipt from the private company that towed and impounded his car, which stated that they found various additional items of property in the car that were not listed in Officer Corona’s arrest report. After a hearing, the district court denied the motion for a new trial upon the conclusion that none of the supposedly new evidence would have resulted in a likely acquittal.

Johnson was sentenced to 188 months in prison, and he now timely appeals.

LEGAL ISSUE

Whether the trial court erred in failing to suppress evidence that was seized by City of Portland police officers during their inventory search of a criminal defendant and the car he was driving at the time of his arrest.

COURT’S ANALYSIS & CONCLUSIONS

Johnson argued that the officers’ inspection of his car exceeded the constitutionally permissible bounds for an inventory search.

The Ninth Circuit reasoned that as an exception to the warrant requirement of the Fourth Amendment to the United States Constitution, police may, without a warrant, impound and search a motor vehicle so long as they do so in conformance with the standardized procedures of the local police department and in furtherance of a community caretaking purpose, such as promoting public safety or the efficient flow of traffic. The purpose of such a search is to produce an inventory of the items in the car, in order to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. Florida v. Wells, 495 U.S. 1, 4 (1990). Thus, the purpose of the search must be non-investigative; it must be conducted on the basis of something other than suspicion of evidence of criminal activity. The search cannot be “a ruse for a general rummaging in order to discover incriminating evidence.” Wells, 495 U.S. at 4.

The Court of Appeals further reasoned that an administrative search may be invalid where the officer’s subjective purpose was to find evidence of crime. However, the mere presence of a criminal investigatory motive or a dual motive—one valid, and one impermissible— does not render an administrative stop or search invalid. Instead, the issue is whether the challenged search or seizure would have occurred in the absence of an impermissible reason.

“We thus must determine whether Johnson has produced evidence that demonstrates the officers would not have searched and seized items from the car he was driving but for an impermissible motive,” said the Court of Appeals.

“Under our circuit’s law, a suspicionless inventory search does not permit officers to search or to seize items simply because they believe the items might be of evidentiary value,” said the Court.  It reasoned that as explained above, the purpose of such a search must be unrelated to criminal investigation; it must function instead to secure and to protect an arrestee’s property, and likewise to protect the police department against fraudulent claims of lost or stolen property.

“Thus, the officers’ statements directly admitting that they searched and seized items from Johnson’s car specifically to gather evidence of a suspected crime are sufficient to conclude that the warrantless search of the car was unreasonable,” said the Court, citing Orozco; a case where the Ninth Circuit found pretext where the police officers admitted that their subjective purpose was to find evidence of crime.

The Ninth Circuit concluded that the officers’ search and seizure of such evidence cannot be justified under the inventory-search doctrine:

“In the face of such evidence, it is clear to us that the officers’ decision to seize the money, bags, and cellphones from Johnson and his car would not have occurred without an improper motivation to gather evidence of crime.”

Furthermore, the Ninth Circuit reasoned that because the government has not offered any justification for the seizure of such property other than the inventory-search doctrine, the district court erred in denying Johnson’s motion to suppress. Therefore, evidence gathered from Johnson and his vehicle was inadmissible.

With that, the Ninth Circuit ruled that the federal district court’s denial of Johnson’s motion to suppress the evidence found on his person and in the car he was driving at the time of his arrest is reversed, his conviction and sentence are vacated, and the case is remanded back to the district court for further proceedings.

My opinion? Good decision. Clearly, the search conducted by police officers in this case went beyond the scope of a lawful inventory search. Please contact my office if you, a friend of family member face criminal charges involving a questionable search. The evidence might be suppressible under a well-argued pretrial motion.

Ninth Circuit Strikes Nevada Statutory Scheme Allowing Pretextual Stops

9th Circuit Court of Appeals, Administrative Search Doctrine, Bellingham Defense Attorney, Federal Crimes & Prosecutions, law enforcement, police, Pretext, Probable Cause, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Traffic Infractions, Whatcom County Criminal Defense, ,

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In United States v. Orozco, the Ninth Circuit Court of Appeals held that a statute allowing Nevada law enforcement officers to stop and search commercial vehicles for no reason violates the Fourth Amendment as unlawfully pretextual.

BACKGROUND FACTS

In 2013, law enforcement received a tip that defendant Victor Orozco – a commercial truck driver – regularly transported illegal drugs across the border inside his semi truck. Unbeknownst to Orozco, Nevada had a statutory and administrative scheme  allowing its police officers to pull over and search commercial vehicles for contraband under the notion that these searched perform a public safety purpose.

On April 27, 2013, the tipster said Orozco would be driving through White Pine County,
Nevada. Trooper Zehr of the Nevada Highway Patrol was advised of the vehicle and its location. He was told he would have to develop his own probable cause to get the vehicle stopped because there could possibly be drugs in the vehicle, but there was nothing solid.

Troopers targeted Orozco’s truck and pulled it over. They discovered the truck had made several trips across the border. Eventually, a K-9 officer dog arrived and made a positive alert as to the presence of drugs. The troopers found a duffel bag containing twenty-six pounds of methamphetamine and six pounds of heroin in the sleeper compartment.

Prior to trial, Orozco moved to suppress the drug evidence on the ground that the inspection of his vehicle was an impermissible pretext “motivated by a desire to search for evidence of drug trafficking, rather than to conduct a commercial vehicle inspection.” However, because “safety inspections” were part of a facially valid administrative scheme, the district judge held that the stop of Orozco’s truck was lawful. Later, Orozco was convicted of two counts of possession with intent to distribute a controlled substance for which he was sentenced to 192 months in prison.

LEGAL ISSUE ON APPEAL

Orozco appealed his conviction on the issue of whether the stop was justified under the administrative search doctrine, which permits stops and searches, initiated in furtherance of a valid administrative scheme, to be conducted in the absence of reasonable suspicion or probable cause.

COURT’S ANALYSIS & CONCLUSION

In short, the Court of Appeals reversed the district court’s denial of Orozco’s motion to suppress, vacated his conviction for two counts of drug possession arising from the stop of his vehicle and remanded the case back to the lower court for further proceedings.

“Nevada Highway Patrol troopers made the stop in order to investigate criminal activity, even though they lacked the quantum of evidence necessary to justify the stop,” reasoned the Court of Appeals. Based on that, the stop was not justified under the administrative search doctrine, which permits stops and searches, initiated in furtherance of a valid administrative scheme, to be conducted in the absence of reasonable suspicion or probable cause.

The Court of Appels further reasoned that although an administrative scheme allowing Nevada law enforcement officers to make stops of commercial vehicles and conduct limited inspections without reasonable suspicion was valid on its face because its purpose was to ensure the safe operation of commercial vehicles, the evidence in this case, however, established beyond doubt that the stop of the defendant’s vehicle was a pretext for a stop to investigate information of suspected criminal activity short of that necessary to give rise to reasonable suspicion.

“The stop would not have been made in the absence of a tip that the defendant was possibly carrying narcotics. Accordingly, the stop was a pretextual stop that violated the Fourth Amendment.”

The Court further emphasized that the presence of a criminal investigatory motive, by itself, does not render an administrative stop pretextual, and nor does a dual motive—one valid and one impermissible. “Rather, the defendant must show that the stop would not have occurred in the absence of an impermissible reason.”

With that, the Court reversed Orozco’s convictions.

My opinion? Good decision. Pretextual stops are often used by police officers as an excuse to initiate a stop and search of automobiles suspected of being involved in criminal activity. These stops involve police officers stopping drivers for traffic violations – minor or otherwise – to conduct investigations which are separate and unrelated to the original reasons substantiating the stop. Pretextual traffic stops give police officer a lot of discretion in who they choose to stop and for what reasons. Too much discretion. Again, good decision.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.