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Standard St. Lawrence County Court judge says hunch not enough to justify defendant's detentio

St. Lawrence County Court judge says hunch not enough to justify defendant's detention

A border patrol agent's hunch that the defendant was smuggling drugs across the United States/Canadian border, was not enough to justify a 50 minute detention of the defendant at a temporary checkpoint. As a result, the judge granted the defendant's motion to suppress the marijuana seized from the defendant's vehicle.

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In People v. Brian M. White, the defendant challenged the legality of the stop of his vehicle at a temporary checkpoint, his subsequent detention and his warrantless arrest for criminal possession of marijuana. St. Lawrence County Court Judge Kathleen Rogers reviewed the facts and relevant case law before granting the defendant's suppression motion.

The Facts

The defendant, Brian M. White, was arrested for Criminal Possession of Marijuana in the First Degree.

The defendant moved to suppress the evidence seized on the grounds his detention was illegal. Judge Rogers held a hearing on May 16 to determine the legality of the stop and the warrantless search of the defendant's vehicle.

The Stop

In the early afternoon on April 24, 2004 U.S. Border Patrol agents conducted a temporary checkpoint near the conjunction of U.S. Route 11 and State Route 812 in St. Lawrence County. It was approximately 25 miles from the Canadian border.

On the day in question the agents were briefly questioning all southbound drivers. The agents stopped the defendant.

The defendant was pulled over by agents Cynthia Pena and Robert Long. Pena asked the defendant where he was going, the reason for the trip and where he was coming from. The defendant stated he was coming from Massena and was on his way to Syracuse for an iron workers' meeting.

The defendant produced an Ontario license and was directed to pull over to the side of the road for "secondary" questioning. The next car in line at the checkpoint pulled forward and the driver's name was also White. This driver turned out to be the defendant's brother and he was also pulled over for secondary questioning.

Pena stated she pulled the defendant over because Long told her to do so. Long told her the defendant was "suspicious, him and the vehicle behind him."

When Pena learned the defendant's last name was White, she asked Long to conduct further checks "because the name White is coming out a lot over the radio."

Long conducted the secondary questioning of the defendant. According to Long, the defendant and the defendant's brother were communicating with each other and pointing at the agents, once they were both pulled over. The defendant kept looking in the rear view mirror, shrugging and putting his hands in the air.

Long asked the defendant where he was going. The defendant stated he was going to a union hall to secure jobs for the next day. The defendant did not have a union card and when asked who the union steward was, he stated "John." In addition, the defendant offered a New York vehicle registration.

The vehicle was registered to another person, Lazore, and the defendant stated it was his uncle's car. Long recognized Lazore's name as someone connected to smuggling.

According to Long the defendant was shaking when he handed Long the license and registration. Long indicated the defendant was more nervous than most people who went through the checkpoint.

Long stated he had previously come across the name White in an arrest report where a person named White was arrested for carrying a large sum of cash which was believed to be drug money.

Based on this information, Long asked the defendant if he could look in the trunk and the defendant refused. Long replied that state police were on their way with a search dog.

Long proceeded to ask the defendant why he couldn't look in the trunk and the defendant stated he had expensive car speakers, car audio speakers in there. However, Long noted the vehicle had a factory installed stereo.

In the meantime, a check of the defendant's license revealed he had a prior conviction for petit larceny and had a suspended license. Long indicated he became suspicious of the defendant because the defendant was noticeably nervous and didn't know the full name of the union contact in Syracuse.

He conducted a pat-down frisk of the defendant, found nothing and asked the defendant to remain in his vehicle while they waited for the state police.

At this point, Long believed he had enough information to justify holding the defendant. Approximately 50 minutes later a drug detection dog sniff searched the defendant's vehicle and discovered the marijuana.

Court Ruling

First, Judge Rogers noted, in U.S. v. Martinez-Fuerte, 428 US 543 (1976), the Supreme Court held that "border patrol agents may stop a vehicle for brief questioning of its occupants at a reasonably located permanent checkpoint, even if there is no reason to believe that the particular vehicle contains illegal aliens."

In U.S. v. Johnson, 2001 US Dist. Lexis 16973 (NDNY 2001), the district court was asked to decide a case arising out of a temporary border patrol checkpoint, similar to the one in the case at hand. The court concluded there was no "substantive differences between permanent and temporary checkpoints," citing Michigan Dept. of State Police v. Sitz, 496 US 444, 450-53 (1990).

"The Johnson court also drew a sharp distinction between checkpoints and roving patrol stops, noting that the latter are considerably more intrusive than the checkpoint stop, and therefore require articulable facts warranting suspicion, Delaware v. Prouse, 440 US 648 (1979) and People v. Scott, 63 NY2d 518 (1984)," Judge Rogers wrote. "The border patrol checkpoint stops are supposed to be brief unless supported by reasonable suspicion that a crime has been committed."

The judge noted a border patrol agent can ask a driver about criminal conduct if he or she has a reasonable suspicion of criminal activity. However, this did not happen in the case at hand. Neither Pena or Long told the defendant they believed he might be involved in some form of illegal activity.

"Part of the legal backdrop for analysis of a drug-related checkpoint stop grows out of the fact that in City of Indianapolis v. Edmund 531 US 32 (2000) the Supreme Court held that the use of checkpoints whose primary purpose was drug interdiction is unconstitutional," the judge wrote. "In that case, the court distinguished Martinez-Fuerte because of the 'special problems of policing the border. Still unclear (and there are conflicting federal decisions, none from this circuit) is the answer to the question whether a border patrol checkpoint is valid when its primary purpose is the enforcement of immigration laws and its secondary purpose is drug interdiction."

The judge concluded the temporary checkpoint conducted by the border patrol agents was "authorized and properly conducted" based on Martinez-Fuerte. Thus the issues before the court became "whether the border patrol agents had reasonable suspicion, at the point when the secondary inspection interview was complete and White had refused permission for a search of the trunk, that White was carrying marijuana; whether defendant's detention at the checkpoint site for 50 minutes pending arrival of the trooper and dog was reasonable; and whether the dog's sniff search, alert and resulting search and seizure of alleged hydroponic marijuana were proper."

The judge reviewed People v. Banks, 85 NY2d 558 (1995); People v. Hollman, 79 NY2d 181 (1992); and People v. DeBour, 40 NY2d 210 (1976) before reviewing the facts in the case at hand.

Long requested the search dog before his interview with the defendant was complete. The request was made based on the defendant's behavior, the suspended license, the petit larceny conviction and his connection to Lazore.

"These facts could certainly lead an experienced law enforcement officer to suspect that there was something going that would invite a closer look," Judge Rogers wrote. "That, however, is not the constitutional test for valid detention."

The court reviewed People v. Woodfolk, 267 AD2d 410 (Second Dept. 1999); People v. Coutant __, AD3d __, 790 NYS2d 589, 2005 NY Ap Div Lexis 2419 (Second Dept. 2005); People v. Berberena, 264 AD2d 670 (First Dept. 1999); and People v. Tejada, 279 AD2d 655 (Third Dept. 2000).

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"In the present case, when Long called for the trooper and dog to come to the scene, clearly Long suspected a drug trafficking case," the judge wrote. "The court finds that Pena and Long's questions through and including the secondary inspection interview were appropriate to the level of information available to them, but that neither of them had a founded suspicion of criminal conduct afoot."

Judge Rogers noted the agents may have had a "hunch" but a hunch is not enough to justify a 50 minute detention.

"In view of this finding, the court need not decide whether the dog sniff search was valid," the judge concluded.

The motion to suppress the marijuana was granted on the grounds that it was the product of an unreasonably long detention after an initially valid checkpoint stop.

Jill Miller
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