Diverse Panel of Lawyers Talk About Street Crime
On October 22, 2009, the Center for Excellence in Advocacy and Phi Alpha Delta Legal Fraternity co-sponsored a lunch time panel discussion on street crime. Panelists included Jason Belveal, '07, criminal defense lawyer; Captain Peggy Fox, Topeka Police Department; Professor Mary Kreiner Ramirez, criminal law and criminal procedure instructor and former assistant U.S. Attorney; and Kyle Smith, former prosecutor, assistant attorney general and currently police legal advisor to the Topeka Police Department. The moderator was Professor Michael Kaye, Director, Center for Excellence in Advocacy.
The panel was given two scenarios based on actual police investigations and asked for their views on whether evidence obtained through search and seizure in these cases would be admissible in a criminal prosecution.
Scenario #1
- Three officers on patrol bikes noticed a vehicle on a private business (fast food restaurant) lot with illegal window tint. They watched a person get into the driver's seat carrying a bag of food, and he started the vehicle. Before the car could leave the lot it was stopped on account of the suspected illegal tint. The officers explained that they feared that because they were on bicycles, the suspect would drive off before they could stop him.
- Officer #1 approached driver side and when the driver rolled the window down, the officer smelled marijuana. He also smelled the odor of cooked food in a bag on the driver's seat. He stepped to rear of vehicle and had another officer approach to see if he smelled marijuana, too.
- Both officers concluded that they had detected the odor of marijuana and the driver was asked to step out of vehicle and a K-9 was requested.
- K-9 arrived in about 10-15 minutes and the handler with dog approached the car detecting slight odor. The vehicle was searched by dog and small traces of marijuana found in the console. (Evidence was sent to KBI for confirmation of marijuana.)
- The stop lasted about 40 minutes from start to finish.
- Driver cited for the marijuana, but not the tint violation.
- The fast food restaurant lot was private property and had no sign notifying the public that traffic ordinances of the City of Topeka are enforced on that property. The City does not authorize police to enforce the traffic law on that property. Moreover, the Topeka Police Department has adopted a policy prohibiting its officers, in most cases, from entering onto unmarked private property to enforce the City's traffic laws.
Driver filed a complaint with the department:
- The stop was illegal because it was on private property.
- The drug search was illegal because he didn't give consent.
- The reason for the stop was fabricated because he didn't receive a citation for the tint.
- He further claimed slight damage to the vehicle from the K-9.
What the Panelists Said
Panelists agreed that when officers observe vehicles with overly tinted windows they are authorized to make a traffic stop to enforce the city ordinance prohibiting excessive tinting of car windows, even though the officer's belief may have subjective elements. There was concern that the vehicle was on private property at the time the driver was stopped, and there was some discussion that a stop in violation of city ordinance and police departmental policy could be an illegal stop. Notwithstanding that concern, it appears the stop was reasonable under the Fourth Amendment as recently stated by the United States Supreme Court in Virginia v. Moore, 553 U.S.____ (2008) excluding consideration of state or municipal regulations from the determination of probable cause under the reasonableness clause of the Fourth Amendment.
Panelists also discussed the reasonableness of the detention of car and driver based on the smell of marijuana. Again, most agreed that if the officer was trained or experienced in identifying the odor, the stop was based on reasonable suspicion, though no one suggested that the odor alone in this case provided probable cause to arrest. Panelists discussed whether the smell of fast food could have interfered substantially with the detection of the odor of recently burned marijuana. However, unless the car was being frisked for weapons based on reasonable suspicion or probable cause, entry into the car and search of the car for marijuana had to be based on probable cause.
Panelists assumed that the length of time needed to bring the drug sniffing dog to the scene and further detention while the dog was used to detect the presence of marijuana was questionable unless there was probable cause to detain for drug possession.
Otherwise, some panelists questioned whether the 40 minute detention on reasonable suspicion grounds was justified by legitimate governmental need versus the motorist’s right not to be unduly limited in his travels.
Scenario #2
- Officers on scene of an accident on the roadway. Woman steps out of residence and advises she witnessed the accident.
- The woman is related to one of the vehicle drivers.
- Officers go to her residence, at her request, to take a statement. She states she does not want to leave her child alone. Once in the residence, one officer recognizes the woman as being associated with people who deal in drugs. She also has been known to associate with members of criminal gangs.
- The officer confirms with her who she is and asks if she knows certain people that he associated her with. She confirms that she knows the gang/drug persons.
- Officer #1 stands with her and is getting a statement reference the accident.
- Officer #2 is walking through the residence while this is being done, but doesn't find anything.
- The witness sees the officer enter the other rooms in the residence but says nothing.
Witness filed a complaint with the Department stating this was an illegal search of her residence. She advised she was not involved in the accident and did not give the police permission to look around her residence. She further states she was being profiled because she knew gang/drug members.
What the Panelists Said
Panelists agreed that the entry into the home was consensual due to the resident’s invitation. However, questions were raised whether, under Maryland v. Buie, 494 U.S. 325 (1990), an officer could conduct a walk-through protective search of this residence for suspicious individuals who might do him harm. The resident's status as an associate of gang members and drug dealers and users, seemed, without more, to be a very thin showing of reasonable suspicion sufficient to justify the intrusion into the privacy of the witness's home.
Captain Fox observed, after the discussion, that neither of these cases had in fact resulted in the discovery of evidence of crime, but came to the police department’s attention through complaints by the citizens involved.
In scenario #1 the motorist complained that the drug detection dog scratched his car in an unsuccessful search for marijuana. In scenario #2 the resident complained about comments made by the officers who questioned her. She also objected after the fact to the walk-through search of her residence.
What Students Said
Students commented on the issues in the scenarios and questioned the defense counsel regarding advice to someone in the motorist's situation in Scenario 1. Should a lawyer ever counsel a client to cooperate with the police? Mr. Belveal's answer was an emphatic "no": No consent, confession, or cooperation. Students also asked whether there were racial profiling issues involved in both cases. They wondered whether police and suspects were of different races.
Students raised issues regarding the ability of officers to clearly detect the odor of marijuana under the circumstances, especially since the strong odor of the fast food was present. Finally, some made comments and asked questions about the professionalism issues raised by the scenarios.
Posted October 28, 2009
