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

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


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  1. icon
    That Anonymous Coward (profile), 25 Nov 2019 @ 3:42pm

    Cue the police unions claiming how this will end civilization in 3...2....1....

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 25 Nov 2019 @ 3:56pm

    At least he didn't get up there and lie. The overall outcome of marijuana got seized but no charges stuck actually sounds fine to me.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 25 Nov 2019 @ 3:56pm

    Re:

    It's Iowa*. Unless a bunch of the Nunes family cows have started a civilization of their own, I don't think we have much to worry about.

    *I am from Iowa

    reply to this | link to this | view in thread ]

  4. identicon
    Rekrul, 25 Nov 2019 @ 4:12pm

    If the search was illegal and the evidence never should have been discovered in the first place, does that mean Juan gets his weed back? :)

    reply to this | link to this | view in thread ]

  5. icon
    allengarvin (profile), 25 Nov 2019 @ 4:18pm

    "The rental car was only doing 60 mph in a 70-mph speed zone"

    That crime is far worse than carrying 82 lbs of marijuana. If you're not passing someone, GET OUT OF THE DAMN PASSING LANE!!

    reply to this | link to this | view in thread ]

  6. icon
    Stephen T. Stone (profile), 25 Nov 2019 @ 4:22pm

    Oh look, another cop who should be on a Brady list. Must be a day that ends in “y”.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 25 Nov 2019 @ 4:31pm

    Re:

    No, not unless it was legal to possess under Iowa law.

    Contraband is supposed to be destroyed even if it wasn't acquired legally.

    reply to this | link to this | view in thread ]

  8. icon
    That One Guy (profile), 25 Nov 2019 @ 4:50pm

    Great, now about that penalty...

    While I imagine his buddies at the precinct are going to be razzing him for losing a bust like that it would certainly be nice if there was an actual legal penalty for a blatant violation of a USSC ruling like this other than 'your case just went down the drain'.

    If police are going to engage in blatant fishing expeditions in direct violation of a US supreme court ruling then that should most certainly come with a penalty to encourage the next cop to knock that off and not follow suit.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 25 Nov 2019 @ 5:02pm

    Re:

    The only reason the cop didn't lie was because they would've been caught out by their body cam.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 25 Nov 2019 @ 5:16pm

    Re:

    You can also be pulled over for driving faster than the speed limit in order to pass someone.

    You can't win.
    You can't catch a break.
    You can't quit the game.

    reply to this | link to this | view in thread ]

  11. identicon
    David, 25 Nov 2019 @ 6:19pm

    What I want to know:

    Where did the court toss the 82 pounds of marijuana? And how far?

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 25 Nov 2019 @ 6:35pm

    Re: What I want to know:

    You should file a foia request

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 25 Nov 2019 @ 7:03pm

    Re: What I want to know:

    Ask a cop. Their sense of smell is superhuman, according to their union.

    reply to this | link to this | view in thread ]

  14. icon
    NitroLab (profile), 25 Nov 2019 @ 7:21pm

    Awesome. Johnson County Sheriff's Dept is a corrupt good-'ol-boy's dept with a bunch of imbecile deputies in it's ranks. The only thing that could have made this decision better is if it had been Deputy Doran "want to see my penis" Williams instead of Deputy O'hare.

    reply to this | link to this | view in thread ]

  15. icon
    Bergman (profile), 25 Nov 2019 @ 7:32pm

    Re: Re:

    That hasn't stopped other cops in the past. It sometimes hasn't stopped courts from ruling against the defendant!

    reply to this | link to this | view in thread ]

  16. icon
    Bergman (profile), 25 Nov 2019 @ 7:36pm

    Re: Great, now about that penalty...

    There's supposed to be a legal penalty for it, but you almost never see it because the Department of Justice is vastly smaller than it would need to be to pursue every such case, even if we didn't have a President pressuring them not to go after bad cops.

    Since federal court doctrine is that there is no difference between mere possession of a firearm during a crime and use of that firearm to commit the crime if the crime can become a felony with the use of a firearm, it's RARE for any cop to commit a mere misdemeanor violation of deprivation of rights under color of law.

    https://www.justice.gov/crt/deprivation-rights-under-color-law

    reply to this | link to this | view in thread ]

  17. icon
    Bergman (profile), 25 Nov 2019 @ 7:37pm

    Re: Re: What I want to know:

    Yeah, the union that claims (with a straight face) that cops can smell marijuana across three lanes of traffic at highway speeds, when driving the opposite way well enough to pinpoint the car it's coming from.

    reply to this | link to this | view in thread ]

  18. identicon
    Anonymous Coward, 25 Nov 2019 @ 7:37pm

    They shouldve also returned his weed!

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 25 Nov 2019 @ 8:35pm

    Re: Re:

    The problem with the game of life is that it has a rather fatal uninstallation process.

    reply to this | link to this | view in thread ]

  20. icon
    Koby (profile), 25 Nov 2019 @ 8:49pm

    Citizen Videorecording is Awesome

    The only thing left is for the police to "accidentally" leave their body cameras off when they do their pretextual stops for drugs or cash. Then, they might be able to argue with the judge about when the real purpose for the traffic stop actually ended. In response, I forsee citizens video recording themselves so that they can get off the hook, even if they are actually running some drugs cross-country.

    reply to this | link to this | view in thread ]

  21. identicon
    Bobvious, 26 Nov 2019 @ 4:30am

    Re: Re: I am from Iowa

    You only work in outer space!

    reply to this | link to this | view in thread ]

  22. identicon
    Bruce C., 26 Nov 2019 @ 5:03am

    Speaking of penalties...

    How does the civil asset forfeiture work in this case? I doubt Salcedo (or the person who paid him to make the delivery) will be filing a claim to recover the weed.

    reply to this | link to this | view in thread ]

  23. identicon
    Anonymous Coward, 26 Nov 2019 @ 5:35am

    Re: Speaking of penalties...

    If something is illegal to return to the person it was seized from it is just destroyed.

    It doesn't follow the civil asset forfeiture. That is used for otherwise lawful property used in the commission of a crime, or sometimes more often, because the government took it and got away with it.

    reply to this | link to this | view in thread ]

  24. identicon
    Anonymous Coward, 26 Nov 2019 @ 5:47am

    My only disappointment is that the court never got to hear about the thousands of other times he (and his colleagues ) did this without finding drugs. It simply is not credible that was a single isolated event and not common practice,

    Unfortunately, only those stops with actual charges get to be presented to the court for their consideration. Oh for a legal system where just a complaint of an Amendment violation in those thousands of other stops gets to be looked at by the court.

    reply to this | link to this | view in thread ]

  25. identicon
    Anonymous Coward, 26 Nov 2019 @ 6:17am

    Re:

    They will, if the can stop him again with probable cause for a search.

    reply to this | link to this | view in thread ]

  26. identicon
    Anonymous Coward, 26 Nov 2019 @ 6:20am

    Re:

    Hol up... sounds like there is a story here. Quick google doesn't show it on the top of the news, so what's the scoop?

    reply to this | link to this | view in thread ]

  27. identicon
    Anonymous Coward, 26 Nov 2019 @ 7:34am

    Re:

    82 lbs of marijuana seized without a conviction sounds fine? You are not Juan Salcedo are you?That especially when marijuana is legal in parts of this country. Some states don't want to give up the pot or revenue they haul in so they keep it illegal. America is really starting to SUCK.

    reply to this | link to this | view in thread ]

  28. identicon
    Anonymous Coward, 26 Nov 2019 @ 7:38am

    Re: Re: Re:

    If you're going to take yourself out of the game, let it be for something noble or at least noteworthy, not for a slow moving violation or having your pot seized!

    reply to this | link to this | view in thread ]

  29. identicon
    Anonymous Coward, 26 Nov 2019 @ 7:40am

    Re:

    What are you smoking?

    reply to this | link to this | view in thread ]

  30. identicon
    Anonymous Coward, 26 Nov 2019 @ 7:43am

    Re: Re: Re: I am from Iowa

    I'm grounded this week...the 82lbs I need to get that high were seized.

    reply to this | link to this | view in thread ]

  31. identicon
    Anonymous Coward, 26 Nov 2019 @ 7:44am

    Re: Great, now about that penalty...

    He netted 82 pounds of pot in the evidence locker! His buddies aren't razzing him.

    reply to this | link to this | view in thread ]

  32. identicon
    Anonymous Coward, 26 Nov 2019 @ 7:47am

    Re: Re: Great, now about that penalty...

    They are going to hang on to that until such time Iowa legalizes it and then they'll have a field day!

    reply to this | link to this | view in thread ]

  33. identicon
    Anonymous Coward, 26 Nov 2019 @ 7:51am

    Re:

    They equip officers with the on/ off button to their bodycams just for the reason of fishing expeditions.

    reply to this | link to this | view in thread ]

  34. identicon
    Anonymous Coward, 26 Nov 2019 @ 9:32am

    Re: Speaking of penalties...

    How does the civil asset forfeiture work in this case?

    It would only be fair to seize the police car, badge, and gun that were used in commission of this false arrest, but it's not going to happen.

    reply to this | link to this | view in thread ]

  35. icon
    Wyrm (profile), 26 Nov 2019 @ 10:20am

    Re:

    In a way, this case being tossed is because of those other cases that never get brought to court for lack of finding anything. The end doesn't justify the means because you necessarily involve non-criminals in fishing expeditions.

    If cops could 100% find criminals without ever making mistakes or (worse yet) willfully charging innocents, there wouldn't be a need for due process. But, because we are prone to failure and ill intentions, we need safeguards. The procedures that law enforcement must follow are the safeguards and letting criminals go when procedures are not followed are the way LEOs are signaled that they messed up. (Note that I'm not even sure the people in this case are criminals to begin with. I don't know enough of the context to confirm it.)

    I could agree that it doesn't feel like a satisfactory outcome for two reasons:

    • first because you might have caught an actual criminal, but you have to let him go. However, that is the cost society has to pay if due process is to mean anything.
    • second because the cop who so blatantly violated the procedures and law that specifically apply to him is not held responsible. He's free to do it again, only to let tax payers bear the cost of litigation. I can understand how you don't want to hold individual policemen accountable for each failure, but there should be good faith attempt to follow due process. It's often hard to tell, but the case here is not.

    reply to this | link to this | view in thread ]

  36. icon
    Uriel-238 (profile), 26 Nov 2019 @ 1:03pm

    So what happens now...

    ...to the dubiously-described contraband that has been confiscated? Shouldn't it be returned to the drivers?

    I suspect it's going to be significantly less than eighty-two pounds at the point it is officially destroyed.

    Heck by then it may no longer be marijuana.

    reply to this | link to this | view in thread ]

  37. identicon
    Anonymous Coward, 26 Nov 2019 @ 5:43pm

    Re: Re:

    To law enforcement if you are speeding, you are probably not in a hurry, but are completely zonked on cocaine. If you are creeping down the road, you may be in a hurry, but are stoned out of your mind! It all looks devilishly suspicious!

    reply to this | link to this | view in thread ]

  38. identicon
    Anonymous Coward, 26 Nov 2019 @ 5:50pm

    Re: Re: Speaking of penalties...

    If Johnny Cochoran were alive it might happen!

    reply to this | link to this | view in thread ]

  39. identicon
    Anonymous Coward, 26 Nov 2019 @ 5:53pm

    Re: Great, now about that penalty...

    That One Guy for PRESIDENT!!!

    reply to this | link to this | view in thread ]

  40. identicon
    Anonymous Coward, 26 Nov 2019 @ 5:58pm

    Re: Re: Re: Re: I am from Iowa

    I have a lot of pain in my Illiac.. where did you say they were going to burn this pot?

    reply to this | link to this | view in thread ]

  41. identicon
    Anonymous Coward, 26 Nov 2019 @ 6:05pm

    Re: Re: Re: Great, now about that penalty...

    Maybe they should trade it for four Armored personnel transport vehicles from the DEA.

    reply to this | link to this | view in thread ]

  42. icon
    Norahc (profile), 26 Nov 2019 @ 6:37pm

    Re: Re: Re:

    You forgot that if you're driving the speed limit, you have something to hide because you don't want to draw attention to yourself.

    reply to this | link to this | view in thread ]

  43. icon
    NitroLab (profile), 27 Nov 2019 @ 1:48pm

    Re: Re:

    Depuy Doran Williams used to moonlight as security at Dillard's in Coralville, along with a friend of mine who is a former Iowa City cop. Deputy Williams had a habit of bragging to the female employees about how he could do basically anything he wants because he won't get caught, and how he can speed. He also liked to ask the female employees if they wanted to see his penis.

    reply to this | link to this | view in thread ]

  44. identicon
    Anonymous Coward, 3 Dec 2019 @ 1:03pm

    Re: Re: Re: Re:

    good one!!

    reply to this | link to this | view in thread ]

  45. identicon
    Anonymous Coward, 3 Dec 2019 @ 1:11pm

    Re: So what happens now...

    "heck by then, it may no longer be marijuana.."

    Yeah, it'll be ashes in a tray!

    reply to this | link to this | view in thread ]


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