Court Tosses 82 Pounds Of Marijuana After Deputy Fails To Even Pretend His Traffic Stop Was Anything But Pretextual

Legal Issues

from the past-posting:-LEO-edition dept

Hot damn. A proper application of the Supreme Court’s Rodriguez decision. (via FourthAmendment.com)

The Rodriguez decision — while ultimately not helpful to Dennys Rodriguez — put a small damper on pretextual traffic stops. This isn’t to say cops cannot engage in pretextual stops. They can. They can imagine almost any violation of traffic laws to initiate a stop and then angle for a consensual vehicle search after that.

The Supreme Court’s ruling said a traffic stop ends when the objective ends. If someone is speeding, the issuance of a warning or citation ends the stop. No waiting around for a drug dog. No endless pestering of the driver in hopes of getting a peek in the trunk. It also made it clear a Fourth Amendment violation is a Fourth Amendment violation, no matter how short the interval between the end of the stop and the arrival of a drug dog or the permission to perform a search.

Cops have tried to cut it close by making stops short but having a K-9 unit nearby to do a sniff while paperwork is completed. Sometimes it works. Sometimes there’s enough stuff going on cops can talk courts into believing reasonable suspicion to extend the stop existed.

But more and more, this stuff that cops have been doing for years doesn’t work. In this case, the existence of a body camera recording puts the court on the side of the defendant. Score one for civilians and accountability. Without this footage, this decision might have gone the other way.

Deputy Cody O’Hare started following a car because he thought it was driving too slow in the fast lane. The rental car was only doing 60 mph in a 70-mph speed zone, which is a violation of Iowa state law. Driving slower than the speed limit is permissible, but a failure to move into an unimpeded right-hand lane isn’t.

The traffic stop was initiated but it soon became clear Deputy O’Hare could not have cared less about the perceived infraction. From the decision [PDF]:

Deputy O’Hare initiated a conversation with [Juan] Salcedo and asked about his travel plans. Salcedo explained he was driving back from California after visiting his girlfriend. Salcedo further explained his home was New York City and he and the passenger, who Salcedo identified as his cousin, were traveling together. Deputy O’Hare repeatedly thumbed through the rental car agreement. In response to Salcedo’s questioning about the reason for the stop, Deputy O’Hare said there was no reason for Salcedo to be driving in the fast lane. The conversation continued while Deputy O’Hare again quickly and repeatedly flipped through the rental car agreement. Salcedo stated he initially flew from New York to Florida and then flew from Florida to California. Salcedo and his cousin rented a car in California to drive back to New York City. It appeared, based on the body camera footage, that Deputy O’Hare put forth no effort to process the traffic infraction.

Traffic stops are cool, but do you know what’s really cool? Fishing expeditions. Since the questioning hadn’t yet resulted in Juan Salcedo telling the officer he had 82 lbs. of marijuana in the trunk of the car, the deputy kept stalling. His disinterest in finishing the job in front of him was again exposed by his body camera.

Within seven minutes of Salcedo being pulled over, another patrol car arrived and Deputy O’Hare exited his car to speak with Deputy Lenz. Salcedo remained in the front seat of Deputy O’Hare’s car. Deputy O’Hare’s body camera leaves no doubt that he was quite disappointed to learn a drug dog was not available.

Somewhat undeterred, Deputy O’Hare decided to start questioning the vehicle’s passenger, Jairo Rodriguez. It was then that his keen cop instincts took over.

Deputy O’Hare noted the presence of three cell phones for a car containing only two people. He also observed the back seat of the rental car contained “a lot of luggage.” Deputy O’Hare asked Rodriguez if all of their personal property was situated in the back seat, to which Rodriguez responded it was. At the suppression hearing upon cross-examination, Deputy O’Hare testified he noticed these red flags “right away” from his initial observation of the rental car but only further inquired about them while speaking with Rodriguez.

“Red flags” equals one more cell phone than vehicle occupants and… um… luggage. OK.

When the passenger and driver’s stories failed to match up exactly, Deputy O’Hare called bullshit. He got a noncommittal response to his questions about contraband (basically “do what you gotta do”) from the driver and proceeded with a search. This led to the discovery of a whole lot of weed and the arrest of both men. Also this, which is some damn fine charge-stacking.

The State’s two-count trial information charged Salcedo and Rodriguez with possession of marijuana with intent to deliver in violation of Iowa Code section 124.401(1)(d) and failure to affix drug tax stamp in violation of Iowa Code chapter 453B.

No good, says the court. This is exactly the sort of thing the Rodriguez decision forbids. It’s unclear whether the Rodriguez decision paid off for this particular Rodriguez, but the evidence against Juan Salcedo is going to vanish.

The body camera footage supplied plenty of evidence as to Deputy O’Hare’s intent during this stop. So did Deputy O’Hare.

Deputy O’Hare admitted that it was his intention to investigate issues other than the traffic infraction. He based this view on the fact that “it was a rental vehicle, the three phones, luggage in the back seat, and it becoming a third-party rental.” Deputy O’Hare explained generating traffic citations required entering information into the computer. In response to whether he had ever entered Salcedo’s information into the computer, Deputy O’Hare stated, “No. I was never—never entered information into a traffic citation.”

The court finds there was no reasonable suspicion to extend the stop. Any suspicion O’Hare had, he accumulated after the unconstitutional extension. O’Hare knew nothing about the “suspicious” rental agreement until after he had questioned the passenger. And he didn’t see the luggage until after he had learned of the third-party rental agreement. There were no “red flags” until after O’Hare had obtained this information from the second person he questioned — all while not moving forward with the citation process.

This simply isn’t allowed under SCOTUS precedent, as the court points out. Deputy O’Hare had a job to do. He didn’t do it. He did everything else but proceed with the citation process. While it’s possible to turn a traffic stop into a drug bust without violating the Constitution, O’Hare’s decision to abandon his pretext entirely proves fatal.

What becomes immediately apparent is Deputy O’Hare’s complete lack of effort to address Salcedo’s specific traffic infraction. Six minutes elapsed from the time Salcedo entered the patrol car to the time Deputy O’Hare departed to speak with Deputy Lenz. Deputy O’Hare admitted that, throughout the duration of the stop, he did not ask Salcedo questions regarding the traffic infraction. The body camera revealed Deputy O’Hare repeatedly thumbing through the rental agreement. There does not appear to be any attempt to gain understanding of the document. To the contrary, the incessant page flipping appears to be a stalling tactic to keep the conversation going until a drug dog arrived. During this time, he did not attempt to run a check of Salcedo’s identifying documents or criminal histories, and he did not prepare a traffic citation or warning. Deputy O’Hare admitted, “I was never—never entered information into a traffic citation.”

The body camera further supports Salcedo’s position that Deputy O’Hare was stringing along the stop until a drug dog arrived. Shortly after Salcedo entered the patrol car, Deputy O’Hare requested assistance. When Deputy Lenz arrived, Deputy O’Hare was immediately disappointed to learn a drug dog was not available. Deputy O’Hare also testified at the suppression hearing that he knew from the time of the stop that he would be investigating issues other than the traffic infraction.

Evidence suppressed. 82 pounds of evidence. And some missing tax stamps, I guess. Everything stacked on the table during the police press conference may as well have been thousands of sheets of paper with the words “I FUCKED UP” printed on them. The contraband in the evidence locker is evidence of nothing, thanks to this deputy’s actions.

Filed Under: 4th amendment, cody o'hare, juan salcedo, pretextual stops, traffic stops