The federal government needs to start working on across-the-board legalization of marijuana. Until it unites the nation under THC, this sort of bullshit is going to continue. (via FourthAmendment.com)
Any pretext can be used to make a traffic stop (thanks, SCOTUS!). Bad news is, driving a car opens a person up to a whole slew of warrantless searches under the "motor vehicle exception." Searches can be equally pretextual, perhaps even more so. And this particular search is the pretextualist.
As long as the stop isn't extended for too long (a wholly arbitrary length decided on a case-by-case basis during suppression hearings/civil rights lawsuits), cops are pretty much free to stop and search any driver for any reason. And even if they're completely wrong every step of the way, there's a good chance the "good faith exception" will excuse their misdeeds. (For everything else, there's qualified immunity.)
From North Dakota, best known for oil fields and being one of the states people tend to drive through, rather than towards.
While conducting drug surveillance, a Bismarck Police officer observed a vehicle with out-of-state plates. A detective working with the officer believed he recognized at least one occupant of the vehicle. Walker was a passenger in that vehicle. The detective asked the officer to pull the vehicle over if he observed it make a traffic violation. The officer observed the vehicle making an illegal left turn and stopped the vehicle.
So far, solid police work all around. Possibly suspicious person, albeit one that apparently didn't reside in Bismarck, much less the state of North Dakota. But whatever. Benefit of a doubt and all that.
Upon approaching the vehicle, the officer informed the occupants as to the reason for the stop, asked for their identification, and asked about their travel plans. They informed the officer they were traveling from Washington State to Indiana because the driver's mother was undergoing surgery. The officer also discovered that the vehicle was rented by Walker in Indianapolis and would be returned to that location. When asked, the occupants denied there was anything illegal in the vehicle.
Some suspicion there as the story doesn't quite add up.
The officer relayed the identification and travel plans to the detective, who did not recognize their names. A check of their information did not turn up any outstanding warrants or criminal history.
Free to go? Nope.
The officer requested permission to search the vehicle, which Asbach did not give as he did not rent the vehicle. The officer then spoke to Walker, who indicated he was a third cousin to Asbach and they were returning to Indiana because Asbach's mother was undergoing carpal tunnel surgery. The officer requested permission from Walker to search the vehicle, which he received. The length of the stop from beginning until consent was given was twelve minutes. No citation or warning had yet been issued. The officer did not tell Walker what he was searching for.
But the officer knew why he was searching the vehicle. It wasn't because he thought he recognized the occupant or that the ID check had returned anything notable. The search was predicated on
where the vehicle was travelling from, and what could be acquired there.
Based on the occupants' travel plans, the officer's knowledge that marijuana was in some way decriminalized in the state of Washington, and that drug traffickers rent vehicles instead of using their own vehicles to transport drugs, the officer suspected the occupants were involved in drug trafficking.
"In some way decriminalized." There's nothing quite like an officer proceeding on hearsay evidence generated by his own slippery grasp of marijuana legalization.
A search of the interior of the vehicle did not uncover any criminal activity.
Free to go?
The officer requested that the trunk be opened. No request for consent to search the trunk was made, and no objection to searching the trunk was made. A number of items of luggage were discovered inside the trunk. No request for consent to search the luggage was made, and no objection to a search of the luggage was made by either occupant. A search of the luggage uncovered bags of items with marijuana leaves displayed on them which the officer suspected were edible marijuana products, as well as bags of raw marijuana. The officer did not inquire as to the ownership of each piece of the luggage prior to the search. Both occupants were then placed under arrest.
No consent obtained for the search of the luggage and trunk. Apparently, the lack of an objection was taken as permission to continue by the officer. But the evidence seized during this search was upheld. The court reasoned that the officer's implication that he was searching for narcotics (something apparently not vocalized -- "
The officer did not tell Walker what he was searching for…") was sufficient to extend Walker's consent to search the interior of the vehicle to the contents of the locked trunk (and the contents of
those contents). Further, it found that because the search did not extend the stop for an "unreasonable amount of time," everything was completely constitutional.
The dissenting opinion finds otherwise. As Justice Kapsner notes, the justification for the search was entirely bogus, what with the ID checks returning nothing incriminating and the narcotics detective not finding either of the vehicle's occupants to be known to him as drug traffickers.
Then he goes after the majority opinion's "reasonable amount of time" justification.
The majority's decision may seem reasonable given the officers' inquiries unrelated to the traffic stop were relatively quick, the time required to search a passenger vehicle is short, and it turned out Walker did, in fact, possess contraband. However, its holding articulates a rule that subjects citizens to constitutional violations merely because those violations can be completed quickly. Both this Court and the United States Supreme Court have stated law enforcement must conclude a seizure when the purpose for the seizure has been completed. See Rodriguez v. United States, 135 S.Ct. 1609, 1612 (2015); State v. Deviley, 2011 ND 182, ¶ 9, 803 N.W.2d 561. Yet, the rule the majority articulates today gives law enforcement the approval to use seizures as leverage for compelling citizens into self-incriminating action by simply prolonging detainment until the citizen acquiesces in the officer's demands: "If I can search your vehicle, I'll let you go." Extending seizures in this manner is contrary to our precedent and in conflict with United States Supreme Court holdings.
Unfortunately, that is the upshot of the
Rodriguez decision. Rights can be violated, but the violations need to occur expeditiously. It would have been nice to see the court take a swing at the officer's "but they were travelling from a state where marijuana is legal" rationalization for the stop, but I guess we'll take what we can get. In this case, it's hardly anything. The evidence -- and the charges stemming from them -- remain valid.
This is already a problem. Opportunists in uniform are lying in wait on highways exiting states where marijuana sales are legal and
busting people who have just made a wholly legal purchase. What's most disgusting about these acts is that it has
zero impact on
illegal drug trafficking and the earnest drug warriors making these busts are fully aware of this fact. Military gear, asset forfeiture, billions of dollars of funding -- all excused because it's the only way to stop the violence inherent in drug trafficking. And then they camp out on state borders, busting recreational users who present zero threat to anyone else.
