Opinion
Case No. 00-80756.
February 5, 2002
MEMORANDUM AND ORDER DENYING MOTION TO SUPPRESS
I. Introduction
This is a motion to suppress evidence matter directed to $705,880.00 of currency found in defendant Kevin Davis' Landrover after it was legitimately stopped for speeding on April 29, 1999 in Porter County, Indiana as it was headed east towards Michigan. The factual record of the two-day evidentiary hearing on the motion implicates the question of how long and in what circumstances the police can detain an automobile which they reasonably suspect contains narcotics. For the reasons which follow, the motion is DENIED.
II. Background
The facts as developed at the evidentiary hearing follow. Prior to the stop, Chicago police officers had been conducting surveillance on Keith Presley, a suspected drug dealer. On December 30, 1998, the officers saw Presley meet with Christopher Trammel. Trammel was subsequently stopped and 30 kilograms of cocaine seized from his automobile. On the same day, Presley meet with persons by the name of Duncan and Dunlap. They were subsequently stopped, and 65 kilograms of cocaine was seized from their automobile.
Based on these seizures, a search warrant was executed on a building in Chicago. The building was found to be a repackaging plant for cocaine. Cutting agents, a press for packaging cocaine, industrial size soap detergent boxes (Tide and Arm Hammer), and a mound of detergent was found in the building.
In February 1999, Holly Baskin-Spears was observed meeting with Presley. She was surveilled headed towards Michigan before the surveillance was terminated.
In March 1999, Baskin-Spears was again observed meeting with Presley. She was subsequently stopped and 38 kilograms of cocaine was seized from her.
On April 29, 1999, Chicago police officers, under the supervision of Sergeant Scanlon, who was aware of the facts recited above and who had 25 years experience as a police officer, were surveilling Presley. They observed Davis meeting with Presley and the two driving a tandem to a house in south Chicago. Davis was driving a Landrover with Michigan license plates.
The officers observed two industrial size Tide detergent boxes on the hood or tailgate of the Landrover and Presley and Davis standing together nearby. The officers, driving in three cars, followed Davis into Indiana and observed him heading towards Michigan on Interstate 1-94.
Shortly after crossing the state line, Davis was stopped at 6:45 p.m. by an Indiana state trooper for speeding. The Chicago police officers almost immediately came on the stop. They told the trooper they believed Davis was carrying narcotics in the Landrover.
The trooper asked Davis for his driver's license and car registration, which he gave to him. The trooper told Davis that the Landrover could not move and offered the Davis a ride to the next service station on 1-94. Davis declined the offer and stayed in the Landrover. Davis was seen talking on his cell phone. Davis also declined a request by the trooper to search the Landrover. One of the Chicago officers made a call for a narcotics-detecting dog to see if there were narcotics in the Landrover.
At about 7:00 p.m., a Lake City police officer, Tim Craigan, was called to the scene with an experienced drug-detecting dog, Rocky. Craigan arrived at the scene with Rocky at about 7:15 p.m. At that time, there were eight to ten police officers and a half-a-dozen or so police cards on the shoulder of the interstate. Rocky waked around the Landrover but did not alert. He, however, made what Craigan described as an investigative sniff.
Around 7:20 p.m., DEA Special Agent Vincent Balbo arrived at the scene. Davis would not speak to him and continued sitting in the Landrover. After talking to Davis, Balbo contacted the Lake County Sheriff's Department for a drug dog. When Balbo talked to the Lake County Sheriff's dispatcher, he was told a drug dog was on its way. Apparently when the Lake City Police Department was called, other law enforcement stations in the area were also called. Balbo said he was not aware of the failed effort of Rocky to detect narcotics in the Landrover. Around 8:00 p.m., Lake County deputy sheriff Murcheck was called by his dispatcher. Murcheck arrived at the scene around 8:20 p.m. with Sabor, an experienced drug detecting dog.
Sabor alerted to the rear hatch area. With this information on hand, a Porter County police officer at the scene, Robert Taylor, was sent to obtain a search warrant for the Landrover based on the surveillance facts and Sabor's alert on the Landrover. On Taylor's return at 9:25 p.m. with the warrant signed by an Indiana Superior Court judge, the Landrover was searched and the currency and other papers found. The currency was in two Tide boxes and a third box.
While Taylor obtained the search warrant, Davis was removed from the Landrover and patted down. The police officers considered Davis a threat so long as he was seated in the Landrover where they could not observe his movements.
III. Analysis A.
The same limitations that apply to a person involved in an investigative stop apply to the personal property of the person, United States v. Place, 462 U.S. 696 (1983). If a police officer's action is supported by reasonable suspicion to believe that criminal activity is present based on the totality of the circumstances, the officer may make a brief investigatory stop. United States v. Arvizu, ___ S.Ct. ___, 2002 WL 46773 (Jan. 15, 2002) (citations omitted). The Supreme Court also recently reaffirmed that reasonable suspicion cannot be reduced to "a neat set of legal rules." Id. at *6. Although the stop must last no longer than necessary for the officer to follow up on his or her suspicion, United States v. French, 974 F.2d 687 (6th Cir. 1992), there is no per se rule as to the permissible duration of a stop, United States v. Medina, 992 F.2d 573 (6th Cir. 1993). It is well-established that a positive identification by a dog on an automobile sometimes called an alert or a hit, is determinative of probable cause to conduct a search,United States v. Diaz, 25 F.3d 392 (6th Cir. 1994).
B.
The issue, simply put, is whether or not following the failure of Rocky to alert, it was reasonable to continue the investigative stop of Davis for about an hour to get a further opinion from a drug-detecting dog.
The government's assertion that prior to Sabor's alert there was probable cause to search the Landrover is not well taken. At the point in time the Landrover was stopped, the officers had a reasonable suspicion based on their knowledge of Presley's activities and his interaction with Davis that Davis was in possession of narcotics in the Landrover: Davis had been seen with a known drug dealer. Davis had in his possession containers the drug dealer had been using for narcotics. Davis was headed towards Michigan. A known associate for the drug dealer had been seen heading toward Michigan previously. Davis declined an offer of a ride and continued to remain in the Landrover, talking at times on his cell phone, until the Landrover was searched. This suspicion did not ripen into probable cause with Rocky's investigative sniff. Once, however, Sabor alerted, there was probable cause to conduct a search. The search warrant was obtained in an excess of caution.
The length of time the Landrover was detained to enable the officers to conduct a dog search was less than an hour, a not unreasonable period of time. The continued detention for about another hour to obtain a further opinion in the form of a second dog search was not unreasonable under the circumstances.
It was also reasonable to continue the detention of the Landrover from 8:20 p.m., the time at which Sabor alerted, until 9:30 p.m., when Taylor returned with the search warrant.
In sum, under the totality of the circumstances, there was no Fourth Amendment violation of Davis' rights regarding the stop and search of the Landrover.
SO ORDERED.