Fractured Panel Suppresses Money Found in Truck
U.S. v. $85,688.00 in United States Currency, 2014 WL 4237377 (8/28/14) (Ut.) (unpub'd) - Three judges finding reasonable suspicion to stop Mr. Wiley, two judges finding there was reasonable suspicion to continue investigating a registration offense for 16 minutes and two judges finding reasonable suspicion of drug trafficking justifying detention of Mr. Wiley's truck for a dog sniff adds up to suppression of the money found in the truck. How did this happen? Two judges found a violation of the Fourth Amendment for two different reasons.
All the judges agreed that the Missouri license plate "not on file" response to the trooper's inquiry justified initially stopping the truck. Judge Phillips believed that the reasonable suspicion of a registration violation dissipated when the trooper saw or should have seen the truck's recently issued current license plate and registration tab. The judge also found the reasonable suspicion the truck was stolen dissipated when Mr. Wiley provided the original motor vehicle title receipt showing he owned the truck. This dissipation occurred before the officer obtained enough evidence of drug-related activity to justify further detention. Importantly, the judge placed on the officer an obligation to determine without unnecessary delay whether the "not on file" response arose from innocent or criminal acts. The Fourth Amendment obligated the officer to look carefully at the license plate, not just glance at it, as he did. There was no evidence the plate or tab were forged. Because the plate and tab were no more than two weeks old, it made little sense that Mr. Wiley might have been driving on a previous owner's plates and registration, especially since the response was "not on file" rather than listing the previous owner's name. Likewise, if the truck were stolen, the record would show the real owner's name, not say "not on file." Judge Phillips also finds Mr. Wiley sufficiently preserved the contention the title receipt dissipated reasonable suspicion that the truck was stolen, even though he "could have more specifically argued this point."
Judge Ebel disagrees with Judge Phillips that the Fourth Amendment required a more vigilant inspection of the license plate. An officer doesn't have to use the least intrusive means of investigation, Judge Ebel opines. The judge distinguishes this situation from situations in other cases where the source of the officer's misinformation was a faulty, visual observation. In sum, it was okay for the officer to make the inquiries he did about travel plans, etc. and detain Mr. Wiley for 16 minutes. Judge Ebel found, however, that at the end of those 16 minutes the suspicions justifying the stop had dissipated and there was no reasonable suspicion of drug-related activity to justify detention for a dog sniff. The coffee cup, energy drink, hanging shirts, discarded wrappers and cell phone charger contributed nothing. These circumstances "have become so ubiquitous in interstate travel that they are simply not probative one way or another." Also the officer's belief that the $5,000 Mr. Wiley said he paid for the truck was way below what it was worth and therefore suspicious was not objectively reasonable, given that the title receipt indicated the truck was 6 years old with more than 67,000 miles on it. Mr. Wiley's nervousness was also meaningless because the officer didn't indicate it was extreme. Fumbling the phone while looking for a number wasn't extreme nervousness. Only partially rolling down the driver's window and refusing to open the truck door amounted to refusing consent to search the vehicle, which cannot be used as a factor in the reasonable suspicion calculus. "Very little weight" went to the presence of an aerosol can of Fabreze because there was no evidence it was used. Air fresheners are suspicious if used, not if they are not. Plus the Fabreze could be explained by the smelly endeavor of Mr. Wiley's cross-country trip in a "lived-in" truck. Mr. Wiley's plans were neither inconsistent nor implausible, although they may have been unusual, which does not support reasonable suspicion. Mr. Wiley said he was driving from Missouri to California to visit friends and family after having been laid off from his job. He gave the officer names and numbers of the people he would visit. The failure of those people to answer the phone when called was not suspicious, given that "in the days of mass-telemarketing and caller ID, many of us screen unknown calls." Traveling on I-80, rather than taking the more direct route on I-70, was explained by Mr. Wiley's desire for a more scenic route, since his unemployment gave him the luxury of time to make the trip longer. Judge Ebel was not impressed by the officer's claim that I-80 was not beautiful. "Implausibility must be judged by objective factors, not according to whether the individual officer would have taken the same route." Mr. Wiley's prior arrest for marijuana and paraphernalia possession carried little weight where, as here, there were no other indicia of criminal activity. And, besides, the arrests were 7 years old, not convictions and not for trafficking. Mr. Wiley didn't lie about his prior arrest, since he was cut off before he could complete his explanation. Finally, Judge Ebel noted the lack of any evidence of hidden compartments or drug smell. The lack of especially incriminating factors should not be excluded from the reasonable suspicion analysis, he says.
Chief Judge Briscoe dissented. She agreed with Judge Ebel regarding the initial 16-minute detention. The suspicion generated by the "not on file" response was not dissipated until the officer could check the VIN numbers against the title receipt. She agreed with Judge Phillips that there was reasonable suspicion of drug trafficking after those 16 minutes. She felt traveling to help a sick aunt was not suspicious. But she did feel going out of his way to view scenery on I-80, a major route for drug transportation, and going to the San Francisco Bay area, a known source of high grade marijuana, were reasonable-suspicion factors. Judge Briscoe indicates Mr. Wiley had prior convictions, not just an arrest, for marijuana and drug paraphernalia possession. She counted these heavily together with what she believed was Mr. Wiley's attempt to conceal the convictions. She also counted against Mr. Wiley his rolling down his window only a few inches in conjunction with the Fabreze. This suggested an attempt to hide a drug smell. She agreed with Judge Ebel's assessment of the energy drink, coffee cup, nervousness and $5,000 price of the truck. And Mr. Wiley's unemployment also is irrelevant, Judge Briscoe believes. But, all in all, although the issue was close, there was reasonable suspicion of drug-related activity, the judge concludes.
All the judges agreed that the Missouri license plate "not on file" response to the trooper's inquiry justified initially stopping the truck. Judge Phillips believed that the reasonable suspicion of a registration violation dissipated when the trooper saw or should have seen the truck's recently issued current license plate and registration tab. The judge also found the reasonable suspicion the truck was stolen dissipated when Mr. Wiley provided the original motor vehicle title receipt showing he owned the truck. This dissipation occurred before the officer obtained enough evidence of drug-related activity to justify further detention. Importantly, the judge placed on the officer an obligation to determine without unnecessary delay whether the "not on file" response arose from innocent or criminal acts. The Fourth Amendment obligated the officer to look carefully at the license plate, not just glance at it, as he did. There was no evidence the plate or tab were forged. Because the plate and tab were no more than two weeks old, it made little sense that Mr. Wiley might have been driving on a previous owner's plates and registration, especially since the response was "not on file" rather than listing the previous owner's name. Likewise, if the truck were stolen, the record would show the real owner's name, not say "not on file." Judge Phillips also finds Mr. Wiley sufficiently preserved the contention the title receipt dissipated reasonable suspicion that the truck was stolen, even though he "could have more specifically argued this point."
Judge Ebel disagrees with Judge Phillips that the Fourth Amendment required a more vigilant inspection of the license plate. An officer doesn't have to use the least intrusive means of investigation, Judge Ebel opines. The judge distinguishes this situation from situations in other cases where the source of the officer's misinformation was a faulty, visual observation. In sum, it was okay for the officer to make the inquiries he did about travel plans, etc. and detain Mr. Wiley for 16 minutes. Judge Ebel found, however, that at the end of those 16 minutes the suspicions justifying the stop had dissipated and there was no reasonable suspicion of drug-related activity to justify detention for a dog sniff. The coffee cup, energy drink, hanging shirts, discarded wrappers and cell phone charger contributed nothing. These circumstances "have become so ubiquitous in interstate travel that they are simply not probative one way or another." Also the officer's belief that the $5,000 Mr. Wiley said he paid for the truck was way below what it was worth and therefore suspicious was not objectively reasonable, given that the title receipt indicated the truck was 6 years old with more than 67,000 miles on it. Mr. Wiley's nervousness was also meaningless because the officer didn't indicate it was extreme. Fumbling the phone while looking for a number wasn't extreme nervousness. Only partially rolling down the driver's window and refusing to open the truck door amounted to refusing consent to search the vehicle, which cannot be used as a factor in the reasonable suspicion calculus. "Very little weight" went to the presence of an aerosol can of Fabreze because there was no evidence it was used. Air fresheners are suspicious if used, not if they are not. Plus the Fabreze could be explained by the smelly endeavor of Mr. Wiley's cross-country trip in a "lived-in" truck. Mr. Wiley's plans were neither inconsistent nor implausible, although they may have been unusual, which does not support reasonable suspicion. Mr. Wiley said he was driving from Missouri to California to visit friends and family after having been laid off from his job. He gave the officer names and numbers of the people he would visit. The failure of those people to answer the phone when called was not suspicious, given that "in the days of mass-telemarketing and caller ID, many of us screen unknown calls." Traveling on I-80, rather than taking the more direct route on I-70, was explained by Mr. Wiley's desire for a more scenic route, since his unemployment gave him the luxury of time to make the trip longer. Judge Ebel was not impressed by the officer's claim that I-80 was not beautiful. "Implausibility must be judged by objective factors, not according to whether the individual officer would have taken the same route." Mr. Wiley's prior arrest for marijuana and paraphernalia possession carried little weight where, as here, there were no other indicia of criminal activity. And, besides, the arrests were 7 years old, not convictions and not for trafficking. Mr. Wiley didn't lie about his prior arrest, since he was cut off before he could complete his explanation. Finally, Judge Ebel noted the lack of any evidence of hidden compartments or drug smell. The lack of especially incriminating factors should not be excluded from the reasonable suspicion analysis, he says.
Chief Judge Briscoe dissented. She agreed with Judge Ebel regarding the initial 16-minute detention. The suspicion generated by the "not on file" response was not dissipated until the officer could check the VIN numbers against the title receipt. She agreed with Judge Phillips that there was reasonable suspicion of drug trafficking after those 16 minutes. She felt traveling to help a sick aunt was not suspicious. But she did feel going out of his way to view scenery on I-80, a major route for drug transportation, and going to the San Francisco Bay area, a known source of high grade marijuana, were reasonable-suspicion factors. Judge Briscoe indicates Mr. Wiley had prior convictions, not just an arrest, for marijuana and drug paraphernalia possession. She counted these heavily together with what she believed was Mr. Wiley's attempt to conceal the convictions. She also counted against Mr. Wiley his rolling down his window only a few inches in conjunction with the Fabreze. This suggested an attempt to hide a drug smell. She agreed with Judge Ebel's assessment of the energy drink, coffee cup, nervousness and $5,000 price of the truck. And Mr. Wiley's unemployment also is irrelevant, Judge Briscoe believes. But, all in all, although the issue was close, there was reasonable suspicion of drug-related activity, the judge concludes.
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