A dog sniff that prolongs the time reasonably required for a traffic stop violates the Fourth Amendment.

Rodriguez v. United States, 575 U.S. __ (April 21, 2015). A dog sniff that prolongs the time reasonably required for a traffic stop violates the Fourth Amendment. After an officer completed a traffic stop, including issuing the driver a warning ticket and returning all documents, the officer asked for permission to walk his police dog around the vehicle. The driver said no. Nevertheless, the officer instructed the driver to turn off his car, exit the vehicle and wait for a second officer. When the second officer arrived, the first officer retrieved his dog and led it around the car, during which time the dog alerted to the presence of drugs. A search of the vehicle revealed a large bag of methamphetamine. All told, 7-8 minutes elapsed from the time the officer issued the written warning until the dog’s alert. The defendant was charged with a drug crime and unsuccessfully moved to suppress the evidence seized from his car, arguing that the officer prolonged the traffic stop without reasonable suspicion to conduct the dog sniff. The defendant was convicted and appealed. The Eighth Circuit held that the de minimus extension of the stop was permissible. The Supreme Court granted certiorari “to resolve a division among lower courts on the question whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff.”

The Court reasoned that an officer may conduct certain unrelated checks during an otherwise lawful traffic stop, but “he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” The Court noted that during a traffic stop, beyond determining whether to issue a traffic ticket, an officer’s mission includes “ordinary inquiries incident to [the traffic] stop” such as checking the driver’s license, determining whether the driver has outstanding warrants, and inspecting the automobile’s registration and proof of insurance. It explained: “These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.” A dog sniff by contrast “is a measure aimed at detect[ing] evidence of ordinary criminal wrongdoing.” (quotation omitted). It continued: “Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.”

Noting that the Eighth Circuit’s de minimus rule relied heavily on Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam) (reasoning that the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle), the Court distinguished Mimms:

Unlike a general interest in criminal enforcement, however, the government’s officer safety interest stems from the mission of the stop itself. Traffic stops are “especially fraught with danger to police officers,” so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely. On-scene investigation into other crimes, however, detours from that mission. So too do safety precautions taken in order to facilitate such detours. Thus, even assuming that the imposition here was no more intrusive than the exit order in Mimms, the dog sniff could not be justified on the same basis. Highway and officer safety are interests different in kind from the Government’s endeavor to detect crime in general or drug trafficking in particular. (citations omitted)

The Court went on to reject the Government’s argument that an officer may “incremental[ly]” prolong a stop to conduct a dog sniff so long as the officer is reasonably diligent in pursuing the traffic-related purpose of the stop, and the overall duration of the stop remains reasonable in relation to the duration of other traffic stops involving similar circumstances. The Court dismissed the notion that “by completing all traffic-related tasks expeditiously, an officer can earn bonus time to pursue an unrelated criminal investigation.” It continued:

If an officer can complete traffic-based inquiries expeditiously, then that is the amount of “time reasonably required to complete [the stop’s] mission.” As we said in Caballes and reiterate today, a traffic stop “prolonged beyond” that point is “unlawful.” The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket . . . but whether conducting the sniff “prolongs”—i.e., adds time to—“the stop”. (citations omitted).

In this case, the trial court ruled that the defendant’s detention for the dog sniff was not independently supported by individualized suspicion. Because the Court of Appeals did not review that determination the Court remanded for a determination by that court as to whether reasonable suspicion of criminal activity justified detaining the defendant beyond completion of the traffic infraction investigation.

Author:

Jessica Smith

W. R. Kenan, Jr. Distinguished Professor

School of Government

The University of North Carolina at Chapel Hill

CB 3330, Knapp-Sanders Building

Chapel Hill, NC 27599-3330

T: 919.966.4105  |  http://www.sog.unc.edu/user/150

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Can the government take my money without arresting me for anything?

Yes.  But it appears the Federal Government is putting the breaks on a policy and practice of routine civil forfeiture of suspected illegal proceeds.  If this has happened to you or someone you care about, call us.  Those seizures can be contested in court, and a judge can order the police to return your money.  Jeff Welty discussed the issue on the UNC school of government website in detail On Friday, January 20, 2015, U.S. Attorney General Eric Holder announced major new limits on asset forfeiture. In a nutshell, he put a stop to the federal civil forfeiture of assets seized by state and local law enforcement and “adopted” under the Equitable Sharing program. The details are a little fuzzy, but this may be a very big deal in the world of forfeiture, for reasons Jeff Welty, UNC School of Government, discuss below. New_Limits_on_Forfeiture   Read more "Can the government take my money without arresting me for anything?"

The police intercept and record cell phone information using “Stingray” device.

These Stingray devices are used by local law enforcement in North Carolina.  U.S. District Court Throws out Stingray Evidence. They are being used in criminal investigations in Buncombe.  I have seen the results where they can pin-point your location on a map, and the path you take, like a trail of breadcrumbs.  They capture information from innocent, law abiding citizens indiscriminately.  The government can use these to spy on you.  The devices can not only be used to determine a phone’s location, but they can also intercept calls and text messages. During the act of locating a phone, stingrays also sweep up information about nearby phones—not just the target phone. Earlier this year, Ars reported on how theFBI is actively trying to "prevent disclosure" of how these devices are used in local jurisdictions across America.
A Stingray works by masquerading as a cell phone tower—to which your mobile phone sends signals to every 7 to 15 seconds whether you are on a call or not— and tricks your phone into connecting to it. As a result, the government can figure out who, when and to where you are calling, the precise location of every device within the range, and with some devices, even capture the content of your conversations.
Specifically, says the Wall Street Journal, "the stingray operator [can] 'ping,' or send a signal to, a phone and locate it as long as it is powered on."  Stingray2-640x353 This practice was successfully challenged by the ACLU.  "The court today has confirmed that law enforcement cannot hide behind a shroud of secrecy while it is invading the privacy of those it has sworn to protect and serve," Mariko Hirose, a NYCLU Staff Attorney, said in a statement. "The public has a right to know how, when and why this technology is being deployed, and they deserve to know what safeguards and privacy protections, if any, are in place to govern its use." The actual court order.   The 24-page order comes as the result of a lawsuit brought by the New York Civil Liberties Union (NYCLU) and marks a rare victory in favor of transparency of "cell-site simulators," which are often shrouded in secrecy. New York county sheriff must give up stingray records, judge orders. How does the technology work? Read more "The police intercept and record cell phone information using “Stingray” device."

U.S. court rules residency requirements for pistol buys is unconstitutional

Mance v. Holder Civil Action No. 4:14-cv-539-O Fed. Dist. Ct. A federal district court in Texas overturned a 1968 gun law prohibiting the sale of handguns to out-of-state residents, granting those who live in Washington, D.C., the ability to travel to an out-of-state gun store, buy a handgun and bring it home without a middleman.2ndAmendment The ruling takes aim at the federal Gun Control Act of 1968, which prohibited handgun sales to out-of-state residents and was defended by Attorney General Eric H. Holder Jr., who argued that the law doesn’t violate the Second Amendment. Proponents of lifting the ban said the 1968 law had become dated given technological advances in instant background checks, which are performed every time a gun is purchased from a federally licensed firearm dealer. It also prohibited a robust national handgun market from developing, as rifles and shotguns can be purchased regardless of state residency, but handguns are not. Judge Reed O'Connor said the law had to survive the highest level of scrutiny and ruled that it plainly did not. He granted the gun vendors’ request for a summary judgment striking down the law. “Based on the foregoing, the Court concludes that Defendants have not shown that the federal interstate handgun transfer ban is narrowly tailored to be the least restrictive means of achieving the Government’s goals under current law. The federal interstate handgun transfer ban is therefore unconstitutional on its face,” he wrote. The decision can be appealed to the 5th U.S. Circuit Court of Appeals in New Orleans, and Justice may ask for a stayBut if it stands, the Texas court’s ruling would allow a pistol to be purchased from an out-of-state buyer if that handgun is legal in the buyer’s state of residency. For D.C. residents, the ruling has particular importance because for the first time they will be able to make handgun purchases in neighboring Virginia or Maryland and bring the guns home. Before the ruling, because the District has no gun stores, D.C. residents had to go through middlemen who purchased the firearms on their behalf, then resold them with a surcharge. “This is a tremendous victory for the civil rights of Washington, D.C., residents and Americans in general — the court recognized there’s no need to destroy the national market for handguns,” said Alan Gura, who argued the case for the plaintiffs and is a founding partner at Gura & Possessky Pllc, in the District. “District residents are free to purchase handguns so long as they comply with D.C. law and have those handguns properly registered.” Read more: http://www.washingtontimes.com/news/2015/feb/11/federal-court-rules-residency-requirements-pistol-/#ixzz3ReZd8oD2  Follow us: @washtimes on Twitter   Read more "U.S. court rules residency requirements for pistol buys is unconstitutional"

Supreme Court rules Indoor Grow Marijuana search warrant invalid based on anonymous tip

State v. Benters Synopsis: September, 2011 a Confidential Informant meets with Detective Hastings of the Vance County Sheriff's office and tells he knows where an indoor marijuana grow operation is in Henderson, N.C.  The CI tells him the name of the owner, the address, that the owner doesn't live there.  The officers perform a "knock and talk" and secure a warrant based on the C.I. statements and their own observations, such as gardening supplies and an unusually large light bill.  The police find a large indoor grow operation.  The defendant Benters, was charged with trafficking marijuana, among other things.  The defendant moved to suppress the search based on the defective warrant and constitutional violations.  The trial court granted the defendant's motion.  The State appealed.  The State Supreme Court sided with the Defendant, holding that conclusions by law enforcement and an essentially unidentified tipster could not sustain the warrant. From the opinion: Here Lieutenant Ferguson averred that “Detective Hastings has extensive training and experience with indoor marijuana growing investigations on the state and federal level,” and that Detective Hastings had subpoenaed defendant’s Progress Energy power records. Lieutenant Ferguson then summarily concluded that “the kilowatt usage hours are indicative of a marijuana grow operation based on the extreme high and low kilowatt usage.” As explained above, the absence of any comparative analysis severely limits the potentially significant value of defendant’s utility records. Kaluza, 272 Mont. at 409, 901 P.2d at 110; McManis, 2010 VT 63, ¶¶ 16-19, 188 Vt. at 195-97, 5 A.3d at 896. Therefore, these unsupported allegations do little to establish probable cause independently or by corroborating the anonymous tip. Campbell, 282 N.C. at 130-31, 191 S.E.2d at 756. We acknowledge that investigating officers or a reviewing magistrate may have some degree of suspicion regarding defendant’s “extreme high and low kilowatt usage” given that defendant “is not currently living at the residence.” These unspecified extremes also may be explained, however, by wholly innocent behavior such as defendant’s intermittently visiting his property. Thus, these circumstances may justify additional investigation, but they do not establish probable cause. We turn next to the officers’ observations of multiple gardening items on defendant’s property in the absence of exterior gardens or potted plants. In relevant part, the affidavit provides that law enforcement officers observed from outside of the curtilage multiple items in plain view that were indicative of an indoor marijuana growing operation. The items mentioned above are as followed [sic]; potting soil, starting fertilizer, seed starting trays, plastic cups, metal storage racks, and portable pump type sprayers. Detectives did not observe any gardens or potted plants located around the residence. Nothing here indicates “a ‘fair probability that contraband or evidence of a crime will be found in a particular place’ ” beyond Lieutenant Ferguson’s wholly conclusory allegations. State v. Benters, (5A14) Motion to suppress evidence; whether an affidavit based upon an anonymous tip established probable cause to issue a search warrant. Read more "Supreme Court rules Indoor Grow Marijuana search warrant invalid based on anonymous tip"

Ignorance of the Law is no excuse, unless you are a police officer.

Supreme Court holds that reasonable mistake of law is excusable.  On the morning of April 29, 2009, Sergeant Matt Darisse of the Surry County Sheriff ’s Department sat in his patrol car near Dobson, North Carolina, observing northbound traffic on Interstate 77. Shortly before 8 a.m., a Ford Escort passed by. Darisse thought the driver looked “very stiff and nervous,” so he pulled onto the interstate and began following the Escort. A few miles down the road, the Escort braked as it approached a slower vehicle, but only the left brake light came on. Noting the faulty right brake light, Darisse activated his vehicle’s lights and pulled the Escort over.  As a result of the vehicle stop, which lead to a consent search, the driver and passenger were both charged with attempted trafficking of cocaine.  They challenged the stop, but plead guilty to drug charges. Full opinion of Supreme Court here. Bottom line: Even if police pull you for the wrong reason like speeding 35 in 25 and the speed limit is actually 45, the stop is probably still legal, if the judge finds the mistake is reasonable.  Unless it is a clear violation of your 4th amendment right to privacy.  "An officer’s mistaken view that the conduct at issue did not give rise to such a violation—no matter how reasonable—could not change that ultimate conclusion." Read more "Ignorance of the Law is no excuse, unless you are a police officer."

Ferguson, and Self Defense and the Law

"Stand Your Ground" self defense laws in North Carolina? Use of Deadly Force by the police or by anyone is a hot topic.  Here are some thoughts on Ferguson, and information about the law of self defense in North Carolina from the Experts.  Jeff Welty has written a thoughtful overview of the grand jury process and the what happened.  John Rubin has previously written on the Self Defense laws that were passed in North Carolina in 2011. "Yesterday, the grand jury in St. Louis County, Missouri , declined to indict officer Darren Wilson in connection with the fatal shooting of Michael Brown. Some commentators have criticized the decision of the local prosecutor, Robert McCulloch, to present all the evidence to the grand jury, rather than only evidence that would support an indictment. I don’t think that’s a fair criticism, for reasons I explain below," by Jeff Welty, UNC School of Govermnent. "North Carolina law recognizes various circumstances in which a person may lawfully use force against the threat of harm. Through decades of decisions, the North Carolina appellate courts have recognized the right to defend oneself, other people, and one’s home and property, among other interests, and have developed rules on when those rights apply and amount to a defense to criminal charges. New G.S. 14-51.2, 14-51.3, and 14-51.4 address several of the circumstances in which a person may use defensive force. The statutes restate the law in some respects and broaden it in others. The courts will have to examine their procedures closely to give effect to the new statutory language. The new statutes are part of S.L. 2011-268 (H 650), which applies to offenses committed on or after December 1, 2011."  Whole article here, by John Rubin, UNC School of Government. N.C.G.S. 14-51.2 Home, workplace, and motor vehicle protection; presumption of fear of death or serious bodily harm. (a) The following definitions apply in this section: (1) Home. – A building or conveyance of any kind, to include its curtilage, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed as a temporary or permanent residence. (2) Law enforcement officer. – Any person employed or appointed as a full-time, part-time, or auxiliary law enforcement officer, correctional officer, probation officer, post-release supervision officer, or parole officer. (3) Motor vehicle. – As defined in G.S. 20-4.01(23). (4) Workplace. – A building or conveyance of any kind, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, which is being used for commercial purposes. (b) The lawful occupant of a home, motor vehicle, or workplace is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or serious bodily harm to another if both of the following apply: (1) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a home, motor vehicle, or workplace, or if that person had removed or was attempting to remove another against that person's will from the home, motor vehicle, or workplace. (2) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. (c) The presumption set forth in subsection (b) of this section shall be rebuttable and does not apply in any of the following circumstances: (1) The person against whom the defensive force is used has the right to be in or is a lawful resident of the home, motor vehicle, or workplace, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person. (2) The person sought to be removed from the home, motor vehicle, or workplace is a child or grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used. (3) The person who uses defensive force is engaged in, attempting to escape from, or using the home, motor vehicle, or workplace to further any criminal offense that involves the use or threat of physical force or violence against any individual. (4) The person against whom the defensive force is used is a law enforcement officer or bail bondsman who enters or attempts to enter a home, motor vehicle, or workplace in the lawful performance of his or her official duties, and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties. N.C.G.S. § 14-51.3. Use of force in defense of person; relief from criminal or civil liability. (a) A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if either of the following applies: (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another. (2) Under the circumstances permitted pursuant to G.S. 14-51.2. (b) A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties. (2011-268, s. 1.)     Read more "Ferguson, and Self Defense and the Law"

I-40 Challenge means more Troopers for the Holidays.

Additional troopers on the road for Thanksgiving Drivers can use a few simple safety tips while traveling this holiday season:
  • Do not tailgate
  • Use turn signals
  • Maintain appropriate speed
  • Plan ahead/use your mirrors
  • Do not text while driving
  • Wear your seatbelt
The I-40 Challenge will be conducted Wednesday, Nov. 26, 11 a.m. - 11 p.m. and again on Sunday, Nov. 30, 9 a.m. to 9 p.m. Read more "I-40 Challenge means more Troopers for the Holidays."

Do you need a “do-over”? And what is a Motion for Appropriate Relief?

Motion for Appropriate Relief   Did you get some bad advice?  Did you pay your ticket online without consulting an attorney?  Or you may have pled guilty due to coaxing by an officer or other unqualified party, and now your insurance has increased or you found out your license is suspended. If you believe your conviction was defective, there is a second chance available by a "Motion for Appropriate Relief" (MARs).  MARs can be filed for most criminal matters, including traffic violations, misdemeanors and felonies. For example, if you were convicted of a criminal offense and someone other than your attorney told you to plead guilty, that may be a defect that warrants an MAR. A MAR is a motion made after judgment to correct any errors that occurred before, during, or after a criminal trial or proceeding, including errors related to the entry of a guilty plea.  It is a legal mechanism that allows people who have been convicted of a crime to challenge their conviction because the conviction was obtained in violation of their Constitutional rights. The most common grounds raised in a MAR are:
  • violation of the right to effective assistance of counsel
  • Pleading guilty without advice of an attorney
  • Improper advice by unqualified parties such as police officers, DMV or Court personnel
  • newly discovered evidence
  • prosecutorial misconduct
  • actual innocence or
  • Illegality of sentence.
All the grounds for a Motion for Appropriate Relief under listed under N.C.G.S. § 15A-1415.    Under a related statute G.S. 15A-1414, a person convicted of a criminal offense may seek relief for any error that occurred before or during trial within 10 days after entry of judgment.   G.S. 15A-1417 describes the relief available when a court grants a motion for appropriate relief, including vacating of a conviction if the court finds it invalid for one of the reasons described in G.S. 15A-1415. An order vacating a conviction does not necessarily terminate the criminal case; the State may retry the defendant unless, in addition to vacating the conviction, the court enters an order dismissing the charges. The Court has the authority to order that an MAR or dismissal nunc pro tunc, a Latin phrase literally meaning "now for then," is a concept derived from the common law that is utilized by courts as clerical correction or as an equitable remedy. An order issued nunc pro tunc has retroactive legal effect, essentially modifying a previous order or entering an effective date of a court order retroactively. This can be critical when your license is suspended by DMV because of prior convictions that were obtained defectively.   Filing a Motion for Appropriate Relief can be very complicated depending on the case. An experienced attorney will review your case, and may need to interview witnesses, investigate the facts of the case, review the discovery that leads to new evidence, and review the entire history of the case from start to finish. Sometimes the court will require an evidentiary hearing to be held on the motion, where the lawyer will have to call witnesses, present evidence, and challenge the State's evidence, and make arguments to the court.   Hiring the right attorney for the job can be the difference between a winning motion and a losing motion.  Call today for a free consultation on whether an MAR is the right action for you. Read more "Do you need a “do-over”? And what is a Motion for Appropriate Relief?"