December 1, 2016
My Miniature Golden Doodle Can’t Smell Your Drugs
On November 30, 2016, the Minnesota Supreme Court decided State v. Lugo, A15-1432. In that case, the MNSC looked at two issues: (1) whether State v. Webber, 262 N.W.2d 157 (Minn. 1977), did not establish a deferential standard of review of a district court’s legal conclusions in pretrial appeals by the State under Minn. R. Crim. P. 28.04. and (2) Dogs sniffin’ for drugs.
The analysis for number 1 is every bit as riveting as you can imagine so let’s move to the dogs. Here are the facts:
On February 23, 2015, Agent Joe Joswiak of the Buffalo Ridge Drug Task Force was watching a “known drug house.” Watching a known drug house must be better than watching Full House with the exception of the episode where Uncle Jessie made a video with his band, Jesse and the Rippers for “Forever.” Agent JJ saw a vehicle (of what can hope to be a Geo Metro with spinning rims) parked in the driveway with a sole occupant sitting in the front seat. The vehicle’s registered owner was named Justin Keoudouangdy who probably resorted to owning vehicles parked in the driveway of known drug houses because his name was too hard to spell in Kindergarten or as a sophomore in high school. Mr. K had a warrant for his arrest for felon in possession of a firearm and multiple drug counts. Agent JJ watched as the person in the vehicle got out and walked toward the house. After 12 minutes the mystery person emerged and drove away. Agent JJ radio’ed to another officer named Tim Gaul who had the gall to pull him. The vehicle did not immediately stop. The vehicle turned into a parking lot, made an 180-degree turn, drove 30 to 50 yards the distance of Matt Asiata’s 2016 rushing yardage total, and finally came to a stop. Gaul saw the driver bend down out of sight for a moment. At this time agent JJ was back and the two officers approached the vehicle.
JJ recognized the driver as Mr. Lugo. He knew Mr. Lugo had driving privileges revoked. He also knew that Mr. Lugo had been arrested for a drug possession case. When asked who the owned the vehicle, Lugo originally said it was Jason but then quickly changed his answer to his cousin A.I. Disregarding that Lugo is cousins with Allen Iverson, at one point he said, “take me to jail.” Likely after talking about the merits of practice. Gaul dealt with Lugo. JJ looked inside the vehicle and saw “numerous indicators of illegal drug trafficking,” which is apparently different than “legal drug trafficking.”
- Center console molding had been removed,
- The plastic pieces….(gasp) had been messed with,
- And the vehicle had a “lived-in look.”
Those factors combined with how long he took to stop, his leaving of a drug house, and his arrest two months ago for fleeing on foot and drug possession. The vehicle’s owner, Mr. K had been arrested for drugs two years ago and a meth pipe was found inside. The lesson here to be learned, don’t drive Snoop Dogg’s car. All of these factors led to the officers calling for the drug sniffing dog. The dog alerted them to the presence of drugs at the driver’s door and the trunk. Drugs were found in a deodorant container in the back seat and burned methamphetamine residue in a sock in the trunk. Lugo was charged with second-degree controlled substance possession. He challenged the search, citing the officers lacked the reasonable suspicion to conduct the dog sniff. The district court agreed and suppressed the evidence. The court of appeals overruled the district court and said that dog sniff was fine. So here we are.
The use of a drug-sniffing dog to sniff the exterior of a vehicle that has been lawfully seized is not a “search” requiring probable cause under the Fourth Amendment, a police officer must have a “reasonable, articulable suspicion of drug-related criminal activity before law enforcement may conduct a dog sniff around a motor vehicle” lawfully stopped for some other reason. State v. Weigand, 645 N.W.2d 125, 135 (Minn.2002). See Rodriquez v. United States, U.S. , , 135 S. Ct. 1609, 1616 (2015)(stating that police may not routinely extend an otherwise completed traffic stop absent reasonable suspicion, in order to conduct a dog sniff).
What is reasonable suspicion?
“A particularized and objective basis” for suspecting the person stopped of criminal activity. See Ornelas, 517 U.S. at 696 (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). “The reasonable-suspicion standard is not high.” State v. Morse, 878 N.W.2d 499, 502 (Minn. 2016) (quoting State v. Diede, 795 N.W.2d 836, 842-43 (Minn. 2011)) (internal citation and quotation marks omitted). It is enough that a law enforcement officer can articulate specific facts which, taken together with rational inferences from those facts, objectively support the officer’s suspicion. State v. Davis, 732 N.W.2d 173, 182 (Minn. 2007) (“[R]easonable suspicion requires’ something more than an unarticulated hunch, [and] that the officer must be able to point to something that objectively supports the suspicion at issue.’ ” (quoting State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000))).
So they don’t need much. Here, they didn’t have much. The SC agreed that having a car that looked “lived in” is not indicative of drug activity. Just another example of profiling against the untidy. But they did consider the following:
(1) He was leaving a known drug house. Presence in a known drug house is, a relevant, but not conclusive, factor for an officer to consider. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (stating “officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.”). Just say “no” to drug houses.
(2) He took a long time to stop and appeared to be trying to hide something. This kind of behavior is relevant in a reasonable-suspicion analysis. See United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975).
(3) He had been arrested for drug possession in the past. Arrests not resulting in conviction may be considered when the arrest was for an offense of the same general nature. See State v. Yarbrough, 841 N.W.2d 619, 623-24 (Minn. 2014) (noting that the defendant’s prior arrest contributed to the overall finding of probable cause).
(4) He lied about the ownership. No one believed Allen Iverson was the owner, but given AI’s current financial status maybe it was sort of credible? See Britton, 604 N.W.2d at 89 (stating that attempts to conceal vehicle ownership can be suggestive of ongoing criminal activity).
(5) Finally, saying “take me jail please.” Even though he was polite and said “please” this remark suggests consciousness that he committed a crime. If he would have said “now” instead of “please” the dog sniff would have been on the exterior of his jeans not his Geo Metro under that analysis.
So the SC found reasonable suspicion. Lesson here are the following: Don’t say Allen Iverson owned your car. Stop immediately and remain in an upright position with your seat belt fastened. Don’t get arrested for drug crimes. Don’t offer to go jail, even if you say “please.” Don’t burn your meth into socks, which sounds like a fragrance: “Sock Meth” by Calvin Klein. And finally, don’t go to drug houses. Watch full house instead.