I recently represented a 30-something year old man arrested for drug possession and drug trafficking. He was driving a semi truck and trailer containing about $3M worth of cocaine. Nobody else was charged. Just my client. The driver of the truck. The cocaine was found buried under blankets and inside a duffel bag wrapped in plastic and duct tape. Facing a mandatory minimum prison term of at least 10 years, he and his family raised the money for me to defend him. He is Not Guilty. However, his case is not the point of this essay. How his case, and many others come to light, is the story here.
Most drug smuggling / trafficking cases found on the interstates of Ohio (Interstates 75, 70 and 71) seem to always involve a traffic stop that I hardly ever see in any other type of case — “following too closely”. Or, these cases involve weaving just enough to justify a traffic stop.
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After a traffic stop, these troopers have amazing ability to see “pulsing carotid arteries” or “hard swallowing”. If the driver seems “very nervous” then it is yet another clue in the case. Both of these are police-sponsored indicators for drug trafficking. From the time of the traffic stop through separating the driver from the vehicle, there is rarely, if ever, any evidence of drug trafficking. Either these are the luckiest troopers in America or they have some inside information about what a vehicle is hauling.
So what is really going on? Of course, the police get information called tips. Unfortunately for them these tips or leads may be too flimsy to rely upon in a courtroom so they are encouraged to get more evidence before making the traffic stop. Thus, the “following too closely” or “weaving”. Neither one of these moving violations are defensible at a suppression hearing. If the stopping officer testifies as to what he saw, absent impeaching evidence from the defense, the judge is going to uphold the traffic stop. Problem solved. And the troopers know this.
What about probable cause to search the vehicle? That’s a constitutional requirement. Well, the easiest way is to get consent from the driver. All kinds of little techniques are offered up at law enforcement training seminars on that investigative tool.
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But there is another way — a little trickier. The K9 “hit”. Why in the world would a K9 show up at a “following too closely” traffic stop? Up until the time the stopping officer requests a K9 unit, 99% of the time he does not have any solid evidence supporting the belief that there are drugs in the car. You can’t just radio in “Hey, I’ve got a Mexican stopped in a rental car on I-70, bring out the K9. Well, that is exactly what happens but it is coded in such a way that tiptoes around the 4th Amendment. Prolong the traffic stop until the K9 unit arrives.You don’t need PC to have a K9 walk around a vehicle. If he hits, “bang” you get PC to search.
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Thus, the key is to prolong the traffic stop. There are many different ways to do that, too. This is the Achilles heel in many prosecutor’s cases. A good defense attorney is going to wrench down on that extra long traffic stop and prove to the judge exactly what it is — a shortcut around the 4th Amendment.
I’ll address K9 searches and challenges in another post soon.