Criminal Procedure Exam

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ARKANSAS
CRIMINAL PROCEDURE Exam

July, 2005
On December 4, 2004, an officer with the police department was traveling eastbound on Interstate 40, when he observed defendant High’s car drive off the road three times. The officer pulled High over. After doing so, the officer talked to High through the passenger window and smelled a strong odor of air freshener. The officer asked for and obtained Mr. High’s driver’s license and vehicle paperwork, then asked Mr. High to accompany him to the patrol car. It was raining and the officer had decided to issue Mr. High a written warning. While in the patrol car, the officer ran the usual warrants checks and spoke with Mr. High, who told him he was on his way to Virginia to visit his mother, whom he had not seen in a few years. Mr. High told the officer that he was from California and that he worked as a farmer. The officer thought this was odd.
A one way car rental agreement from California to Virginia was among the paperwork that Mr. High had given to the officer. This agreement showed that the vehicle had been rented to Summer Bay, who was not present, but also listed Mr. High as an additional driver. Mr. High stated that he planned to return to California after a ten day vacation, and that the vehicle had been rented by Bay because Mr. High did not have a credit card. The officer then completed writing the warning ticket, and handed everything back to Mr. High.
Then, the officer asked Mr. High if he had any drugs in the vehicle. (The officer thought Mr. High was transporting drugs because of the smell of air freshener, which is used to mask odors, the fact that the renter of the rental car was not present, the one way travel, and Mr. High’s nervousness).
Mr. High responded that he did not have any drugs in the vehicle. The officer requested permission to search the vehicle. Mr. High refused. The officer stated that he was going to run his drug dog around the vehicle. The dog had been in the back seat of the patrol car during the stop. While running around the car, the dog alerted to Mr. High’s trunk.
In assessing this case, please discuss the following issues:

Criminal Procedure Exam 1. Was there probable cause for a stop of the vehicle?

Criminal Procedure Exam 2. Which U.S. constitutional amendment is most applicable to Mr. High in this fact pattern?

Criminal Procedure Exam 3. Did the officer have reasonable suspicion to detain Mr. High after the traffic stop was completed?

Criminal Procedure Exam 4. Should Mr. High’s motion to suppress the drugs be granted or denied?

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1) PROBABLE CAUSE

The officer did have probable cause to pull over defendant after observing him drive off the road three times. Probable cause requires that an officer have articulable and reasonable grounds to believe a person has committed an unlawful act. Here, the defendant violated traffic laws by failing to operate his vehicle in a requisite safe manner - which the officer observed - and therefore probable cause is satisfied.

This problem presents a fact situation that is basically the 2005 Arkansas case of Lilley v. State. In that case probable cause was similarly found to have been satisfied by erratic operation of the vehicle.

2)Criminal Procedure Exam CONSTITUTIONAL IMPLICATIONS

The Fourth Amendment’s prohibition against unreasonable search & seizures is the amendment most applicable to this fact pattern. The key issue is the detention after the traffic stop was over coupled with the question of reasonable suspicion to conduct a dog search of the vehicle.

The U.S. Supreme Court held in Illinois v. Caballes (Jan. 2005) that law enforcement officers, while in the process of a traffic stop, may conduct a dog “sniff” search of a vehicle without implicating the Fourth Amendment. The Court reaffirmed that dog sniff searches are not searches generally under the constitution, and as long as the search takes place while the traffic stop procedures are being performed it is also not a Fourth Amendment violation. In Illinois v. Caballes, a defendant was pulled over after a traffic violation, and while one officer processed the ticket a second officer arrived and lead a narcotics dog around the vehicle. There was no constitutional violation.

3)Criminal Procedure Exam REASONABLE SUSPICION TO DETAIN

Based on the previous Arkansas Supreme Court decisions in Sims v. State, the recent Lilley v. State and Arkansas Crim. R. 3.1 there was not reasonable suspicion to detain the defendant. Arkansas Crim. R. 3.1 allows for a law enforcement officer, lawfully present, to detain an individual based on reasonable suspicion for 15 minutes, or as reasonably necessary under the circumstances. Reasonable suspicion is a law enforcement officers belief that criminal activity has been engaged in, but does not rise to the level of probable cause that would allow an arrest. In Sims v. State, the Arkansas Supreme Court stated that reasonable suspicion in the context of a traffic stop must not only be supported by objective and reasonable factors that in their totality allow for reasonable suspicion – but, importantly here, the reasonable suspicion must be formed before the traffic stop was ended.

In the Sims case before the focus was on the “factors” that reasonable suspicion was based on to detain and conduct a dog sniff. The Arkansas Supreme Court rejected the objectivity of the factors cited by the law enforcement officer and found there was no reasonable suspicion.

In the recent Lilley decision, the Arkansas Supreme Court focused on the fact that the traffic stop was ended before the officer could have determined there was reasonable suspicion to detain and conduct a dog sniff.

Here, the facts state that “the officer completed writing the warning ticket and handed everything back to Mr. High.” Based on exactly the same fact pattern the Arkansas Supreme Court held in Lilley that at this point the traffic stop was over.

Based on Arkansas Crim. R. 3.1 requiring reasonable suspicion to detain and the fact that the Arkansas Supreme Court held in Sims that the reasonable suspicion must be formed before the traffic stop is over – there was no reasonable suspicion before the traffic stop ended.

It should be noted that the Lilley decision also rejected the proposition that the (1) air fresher odor, (2) farmer “oddity” (in Lilley the defendant said he worked in a farmers market, but the officer thought he said farmer), (3) car rental agreement with defendant as an additional driver, and (4) cross-country trip did not provide a basis for reasonable suspicion.

Therefore, under Arkansas Crim. R. 3.1 and Arkansas Supreme Court decisions in Lilley and Sims the officer did not have reasonable suspicion to detain the defendant after the traffic stop was completed.

4)Criminal Procedure Exam MOTION TO SUPPRESS:

Again, based on the Lilley decision by the Arkansas Supreme Court, the evidence of drugs seized following a dog search after the completion of a traffic stop should be suppressed under the Exclusionary Rule.

Although the dog search on its own was not a constitutional violation accord to Illinois v. Caballes - and in the context here would not implicate the Fourth Amendment if it had been conducted during the traffic stop - because there was not reasonable suspicion formed before the completion of the traffic stop (Sims) the detention was unlawful and the drug evidence should be suppressed.

Since this criminal procedure exam the Supreme Court has decided a new criminal procedure exam case

The case of Arizona v. Gant changed the law for criminal procedure searches, incident to arrest as it relates to traffic stops. Prior to Gant, the rule of law was that when a police officer made a lawful arrest of the occupant of a vehicle, the officer could “as a contemporaneous incident to that arrest, search the passenger compartment of the automobile.” New York v. Belton. After Gant, this general rule has been modified. Gant changed the law justifying a search incident to arrest to a “case by case” basis. As such, when searching a vehicle incident to Now when a police officer makes a lawful custodial arrest of an occupant or recent occupant of a vehicle, the officer may search the passenger compartment if:

the arrestee is within reaching distance at the time of the search (or it is reasonable to believe that he may gain access to the vehicle at the time of the search); or it is reasonable to believe that the vehicle contains evidence of the offense of the arrest.

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