Appeals court dissent blasts State 'amass & aggrandize' suppression tactics
In State v. Baker, a 3-judge panel examined whether police who had received an anonymous tip that the defendant had been dealing narcotics out of his house and allegedly saw a "hand-to-hand" they merely suspected was related to narcotics, had reasonable suspicion to conduct a traffic stop following and, further, whether police lacked probable cause to obtain a warrant to later search the defendant’s residence.
In August 2015, a police detective received a call from a State of Nevada law enforcement agency that indicated that the Baker defendant had been arrested in the presence of two others and distributional quantities of marijuana. The Baker defendant was not formally charged in Nevada.
In April 2016, that same detective was surveilling a property in an unrelated matter and observed the Baker defendant. According to the detective, the defendant engaged in “avoidance behavior” by driving by his own house after purportedly spotting the officer. In support of the argument that the defendant drove past the residence when he spotted the surveillance, the officer “admitted” that police stuck out in the neighborhood. They attributed this “avoidance behavior” to suspected criminal activity.
On April 18, 2016, a detective received an anonymous call that the Baker defendant had just received a large shipment of marijuana and was dealing drugs out of his “Ricker Street” house. The detective who received the anonymous call followed the defendant and alleged he saw defendant conducting a “hand to hand” transaction that was “consistent with” illicit narcotics.
The detective asked a patrol officer to conduct a traffic stop. When an officer did so, the Baker defendant allegedly “slow rolled”—not immediately stopping—which the officers later testified was also consistent with warning coconspirators at a stash house. After the officer activated emergency top lights but before the defendant actually stopped, the defendant put his hand out of the car window and officers testified they believed that he had thrown something out the window. They searched the area and claim they found a baggie of marijuana.
Officers returned to the Ricker Street house, entered, swept the house for suspects and contraband, seized a scale and marijuana purportedly “in plain view” and secured the premises while others obtained a search warrant. A subsequent search by warrant turned up enough marijuana to charge the defendant with dealer offenses including possession with intent to deliver and drug tax stamp violations.
Defendant moved to suppress his warrantless seizure and evidence flowing from it. He challenged the warrantless sweep and purported “plain view” seizures, and the warrant as both tainted by prior illegalities and overall unsupported by probable cause.
The district court granted the motion as to the protective sweep-- noting it was unsupported by “exigent” or emergency circumstances—thus excluding evidence seized as a result. It excised language in the search warrant application that referred to the protective sweep and its fruits. But it approved the traffic stop and found the warrant application still had enough probable cause to support the search. The district court also rejected the argument that the warrant application should have included language that the defendant had not actually been formally charged in the State of Nevada.
A jury found the Baker defendant guilty of possession with intent to deliver and drug stamp violations. He appealed.
Judges Vogel and Carr of the 3-judge appeals court panel held that the totality of the circumstances—the sum total of everything the police knew at the time they stopped the defendant and sought the search warrant—supported their conduct and the warranted search. Taken alone, each of the purportedly suspicious observations police made during the course of their investigation—including so-called “avoidance behavior,” the “slow roll,” the anonymous phone call, or the arrest in Nevada—may not have been enough. But in total, Judge Vogel wrote, they were sufficient cause to seize the defendant and ultimately provided enough probable cause to approve the warrant. Judge Tabor dissented, arguing that even in the aggregate they were not enough reasonable suspicion for the stop or probable cause for the warrant to justify the search of the house.
“The State’s case is weak because the combined circumstances did not generate reasonable suspicion for an investigatory stop. Rather than just discouraging a divide-and-conquer inquiry, the State essentially advances an amass-and-aggrandize approach to the suppression challenge,” wrote Judge tabor.
This case is likely to result in further levels of appeal.
NOTE: David A. Cmelik Law PLC has no involvement in the Baker case.
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