Cops' Failure to Follow State Law Immaterial to Federal Suppression Issue; Conclusion Defendant Not a Minor Participant Not Error
U.S. v. Mendoza, --- F.3d ----, 2006 WL 3307267 (10th Cir. November 15, 2006)
1. Immaterial in Defendants’s 4th Amendment motion to suppress evidence that state troopers failed to follow Utah law in obtaining a telephonic warrant for a dog sniff search; 4th Amendment claims are tested against federal law.
Defendant’s (attorney’s) inartful briefing led 10th to decide not to address a more clearly framed oral argument that police did not have reasonable suspicion to detain Defendant while they waited 40 minutes for the arrival of a drug-sniffing dog (Though Defendant was nervous when stopped, gave some answers that seemed unlikely, and had air fresheners in the vehicle, the registration and license all checked out).The issue was arguably a little more clearly framed in the reply brief, but raising an issue in the reply is too late.
Police did not need probable cause to detain Defendant while waiting for the dog, and the 40 minute wait was reasonable under the circumstances. The 40 minute detention was lawful. Finally, once the dog alerted police had probable cause to search the entire vehicle, not just the portion the dog alerted to.
2. Trial court did not abuse its discretion in failing to recuse itself when it had 3 weeks earlier referred Defendant’s counsel to the disciplinary board for misconduct in an unrelated civil case. The court could legitimately determine it had a duty to do so.
3. District court did not err in refusing to give 2 point minor participant reduction under USSG 3B1.2(b). Given the evidence–Defendant had made 3 trips, Defendant was transporting over $1 million street value worth of meth, and Defendant’s recorded jail telephone calls indicated he knew more about the drug transaction than he did–the district court reasonably was not persuaded by Defendant that he was a minor participant.
1. Immaterial in Defendants’s 4th Amendment motion to suppress evidence that state troopers failed to follow Utah law in obtaining a telephonic warrant for a dog sniff search; 4th Amendment claims are tested against federal law.
Defendant’s (attorney’s) inartful briefing led 10th to decide not to address a more clearly framed oral argument that police did not have reasonable suspicion to detain Defendant while they waited 40 minutes for the arrival of a drug-sniffing dog (Though Defendant was nervous when stopped, gave some answers that seemed unlikely, and had air fresheners in the vehicle, the registration and license all checked out).The issue was arguably a little more clearly framed in the reply brief, but raising an issue in the reply is too late.
Police did not need probable cause to detain Defendant while waiting for the dog, and the 40 minute wait was reasonable under the circumstances. The 40 minute detention was lawful. Finally, once the dog alerted police had probable cause to search the entire vehicle, not just the portion the dog alerted to.
2. Trial court did not abuse its discretion in failing to recuse itself when it had 3 weeks earlier referred Defendant’s counsel to the disciplinary board for misconduct in an unrelated civil case. The court could legitimately determine it had a duty to do so.
3. District court did not err in refusing to give 2 point minor participant reduction under USSG 3B1.2(b). Given the evidence–Defendant had made 3 trips, Defendant was transporting over $1 million street value worth of meth, and Defendant’s recorded jail telephone calls indicated he knew more about the drug transaction than he did–the district court reasonably was not persuaded by Defendant that he was a minor participant.
posted by Anonymous at 11:19 AM
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