06 February 2004

A recent motion filed by yours truly (All names changed):

Defendant's Brief for Motion to Suppress

(A) Facts: Ms. Smith was pulled over by Officer Jones on suspicion of driving under the influence (Transcript page 5 line 21-21; hereinafter 5:21-22). Once pulled over, Ms. Smith and a passenger were required to exit the car by another police officer (6:7 - "Officer Friendly had them exit the vehicle"). Officer Jones noticed nothing unusual about Ms. Smith and did not smell the odor of alcohol (9:17-22). Officer Jones did not perform any field sobriety tests on Ms. Smith (8:8-10).

While running Ms. Smith's driver's information through DMV, Officer Jones brought her dog forward and had it check Ms. Smith, the truck, and the passenger (6:15-19). The dog reacted to Ms. Smith in a manner which Officer Jones, relying on her training and experience, interpreted as a reaction to a woman menstruating (6:20-7:5 & 10:19-25). The dog did not alert to the truck (7:12-14). The dog alerted to the passenger (7:10-12) but when searched the passenger had nothing illicit on his person (7:15-20). The passenger stated that "he had been around somebody smoking marijuana earlier during the day" (7:20-21). The officers then searched the truck and found contraband (8:16-20). Officer Jones then approached Ms. Smith and told her that she was to be searched and if she had anything on her person to hand it over prior (9:1-5). Ms Smith handed over contraband from her pocket and gave information leading to discovery of further contraband (9:6-10).

(B) Burden: At a hearing on a defendant's motion to suppress, the Commonwealth has the burden of proving the challenged action did not violate the defendant's constitutional rights. Russell v. Commonwealth, 33 Va.App. 604 (2000)(citing Simmons v. Commonwealth, 238 Va. 200, (1989).)

(C) Defendant was seized: Initially, the seizure of Ms. Smith by Officer Jones in order to investigate a possible DUI was a valid investigatory stop. Arguably, when the officers required Ms. Smith to exit her vehicle it may have been out of concern for officer safety. The officer recognized that Ms. Smith was not drunk and therefore did not perform a single sobriety test. Thereafter, the only valid reason the officers had to hold Ms. Smith was to check her license pursuant to Va. Code sec. 46.2-104. Clearly, "the exercise of police power pursuant to Code § 46.2-104, the act of requiring a person who has been operating a motor vehicle upon the public highways to produce an operator's license, is a restraint upon the individual's freedom of movement and constitutes a seizure of the person.". Brown v. Commonwealth, 17 Va. App. 694, 697 (1994); see also Piggot v. Commonwealth, 34 Va.App. 45, 49 (2000)(by taking a person's identification an officer implicitly commands that person to stay).

Even had the officer returned Ms. Smith's driver's license - a fact not in evidence - no reasonable person would feel free to leave an encounter wherein two officers and a police dog were present, she was required to leave her vehicle, she was never told she could leave, the officers brought a dog forward to scan her for drugs, the officers scanned and physically searched a passenger from her truck for drugs, and the officers searched her truck without so much as a by-your-leave. "Various factors have been identified as relevant in determining whether a seizure has occurred, including the threatening presence of a number of police officers, the display of weapons by officers, physical contact between an officer and a citizen, an officer's language or tone of voice compelling compliance, the retention of documents requested by an officer, and whether a citizen was told that he or she was free to leave." Harris v. Commonwealth, 266 Va. 28, 32 (2003) see also Reittinger v. Commonwealth, 260 Va. 232 (2000)(even if officer tells driver he is free to leave, a reasonable person would not believe he is free to leave in the presence of two officers and one requests to search his vehicle).

It is clear that at no time prior to her arrest was Ms. Smith involved in a consensual encounter with the officers.

(D) Violations of the Fourth Amendment to the Federal Constitution:

(1) Holding the Defendant longer than necessary to complete purpose of initial stop and a brief check of papers.

Once the justification for the stop evaporates a search of either the vehicle or the body is not justified. Thompson v. Commonwealth, 16 Va. App. 478 (1993). Additionally: "When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. Any further detention for questioning is beyond the scope of the Terry stop and therefore illegal unless the officer has a reasonable suspicion of a serious crime." U.S. v. Rusher, 966 F.2d 868, 876 (4th Cir. 1992)(citing Florida v. Royer, 460 U.S. 491 (1983), United States v. Brignoni- Ponce, 422 U.S. 873(1975), & United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988)).

Once Officer Jones realized there was nothing wrong with Ms. Smith, she could only hold Ms. Smith for the very short time necessary to check her license and registration. Once the papers were presented continued possession of the papers to undertake a radio check of their validity is an unconstitutional seizure of the driver unless there is something facially wrong with the papers leading to reasonable suspicion requiring such a check. Richmond v. Commonwealth, 22 Va.App. 257 (1996).

(2) Holding the Defendant in order to use a dog to check her for drugs.

Even were the continued seizure of Ms. Smith during a suspicionless radio check of her papers constitutional, it is common knowledge that officers carry portable radios for these checks ("While a check is being run - - and of course as we know, our officers have the radios right there with them and they can do that right outside the car." (20:19-21 - Deputy Commonwealth Attorney Burger)). There is no evidence that there was any problem causing a delay in what otherwise should have been a very short radio call to verify the veracity of Ms. Smith's paperwork.

Without any indication of possession of drugs, at this point the officer brought a dog forward to perform a search of Ms. Smith, her truck, and the passenger. This clearly extends the stop beyond that which is necessary to conduct a radio check of Ms. Smith's license and registration. It turns the encounter into a seizure for the purpose of searching the person of Ms. Smith and her passenger as well as her vehicle. It is clear that detaining someone without reasonable suspicion for the purpose of searching their person with a drug dog is unconstitutional. United States v. Foreman, 269 F.Supp.2d 683, 687 (E.D.Va. 2003)(even if a dog sniff is not a search, holding a person for a sniff without reasonable suspicion is an unconstitutional seizure); see also Horton v. Gross Creek Independent School District, 690 F.2d 470 (5th Cir 1982)(The Fourth Amendment applies with its fullest vigor against any intrusion on the human body and a dog sniff is unconstitutional "when there is no individualized suspicion"); & United States v. Kelly, 302 F.3d 291 (5th Cir 2002)(dog sniff of a person, as opposed to an object, is a search); B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir 1999)(adopting the 5th Circuit's rationale in holding that dog sniffs of a person are searches).

(3) Searching the vehicle without probable cause.

Even were continued seizure to accommodate a scan by a dog constitutional, the results of the scan do not provide the probable cause required to give the officers the carte blanche to search the passenger compartment allowed by New York v. Belton, 453 U.S. 454 (1981). In fact, the dog had given the truck a pass, not indicating in any way the presence of drugs. No probable cause had been developed as to Ms. Smith; in the officer's professional judgement the dog had not indicated drugs on her person. No probable cause had been developed in the person of the passenger; a search revealed no drugs on his person. While the requirements for a warrantless search of a person's vehicle have been whittled down, the officers must still at least have probable cause. Maryland v. Dyson, 527 U.S. 465 (1999). The police officers had direct knowledge of an indication from the dog that no drugs were present in the truck. The officers didn't state that they smelled an odor from drug use or saw any suspicious items in plain view at any time during the stop. They had previously found no drugs in the scan of Ms. Smith and the actual physical search of the passenger. There were no facts in the officers' possession which could possibly have risen above mere suspicion that "maybe they were smoking [marijuana] in the vehicle" (21: 10-11 - Mr. [Burger]). This guesswork clearly falls far short of probable cause.

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