Flagstaff, AZ – The typical drug or marijuana transportation case begins like this.
Arizona Department of Public Safety (DPS) officer watches traffic on I-40 or I-17. Officer sees indicators of drug transportation, such as a rental vehicle, non-caucasian driver, “heat” car and “load” car traveling together, nervous-looking driver (e.g., rigid posture), covered loads (e.g., pickup truck with covered bed), sole occupants, adult driver with children in the vehicle, and many other considerations. Officer decides to pull the driver over. Officer follows the driver until observing a relatively bogus traffic violation, such as a GPS device mounted on the windshield, low-level speeding, close following distance, unsafe lane change, or any other traffic violation contained in Title 28 of the Arizona Revised Statutes.
Next, the officer initiates a traffic stop. The officer observes more indicators. Some of the ones that I have seen in police reports include the officer’s opinions, such as: “overly” nervous driver, hands “shaking,” voice “quivering badly,” strange or odd statements (e.g., “I only smoke tobacco”), and many others.
Officer then decides that this traffic stop is about far more than a GPS device or other traffic violation. It’s about drugs, or at least marijuana. The officer starts asking questions, “Where have you been?” “Where are you going?” “Why are you going from California or Las Vegas to New Mexico all in one day?” “Did you fly to California? Why didn’t you fly back?” The list goes on and on. And many nervous drivers get confused by the questions. But as soon as an “inconsistent” statement is made, the officer will use it against the driver to suggest that the driver is intentionally lying in order to hide something.
Soon, the driver is ordered out of the vehicle, on the side of a busy highway. The officer takes the driver’s pulse (to again accuse the driver of being “overly” nervous as tractor trailers go whizzing by) and asks to see the driver’s tongue to see if it is green and has raised taste buds. Then the officer says, “If you don’t have anything to hide, you’ll let me search your vehicle, right?” Or the officer runs a K9 dog sniff around the exterior, and when the pup barks (e.g., “alerts”), the officer says he has probable cause to search your vehicle.
These scenarios occur regularly and require the strict, critical scrutiny of a well-educated criminal defense attorney, one who is familiar with Arizona case law against unlawful detentions.
By law, an officer may detain a person no longer than necessary to confirm or dispel suspicion. Adams v. Williams, 407 U.S. 143 (1972). The use of a drug-sniffing K9 dog does not, by itself, unreasonably delay the traffic stop. Illinois v. Caballes, 543 U.S. 405 (2005). In one U.S. Supreme Court case, the majority ruled that an officer had reasonable suspicion that the driver was engaged in illegal activity considering the following:
- Nature of the travel plans;
- Mounted cellular phones, indicating more than one phone was in use;
- Fast-food wrappers and containers of food;
- Luggage and clothing hung in the backseat rather than in the trunk;
- Driver’s response to a question was that he was not “aware” of anyone placing contraband in the vehicle;
- Driver’s decision to exit the vehicle and approach the patrol car; and
- Stop occurred on a “known drug corridor.”
U.S. v. Arvizu, 534 U.S. 266 (2002).
Of major concern in the typical traffic-stop-turned-drug-investigation is that officers do not need reasonable suspicion to ask about crimes or matters unrelated to the purpose of the traffic stop unless the stop is unreasonably prolonged. U.S. v. Mendez, 476 F.3d 1077 (9th Cir. 2007) – a case involving Arizona police officers. And if the person fails to ask the officer if they are free to leave, the traffic stop and detention can easily become a “consensual encounter” in the eyes of the law. Virginia v. Moore, 128 S. Ct. 1598 (2008).
Make sure your criminal defense lawyer knows your constitutional rights. They evolve every day. And there may be a case out there that can save you.