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Dissenting federal appellate judge bemoans the Drug War’s toll on the Constitution

Virginia drug defense attorney/ Fairfax criminal defense lawyer on the drug war's toll on the Fourth Amendment

Apr 24, 2017 Dissenting federal appellate judge bemoans the Drug War’s toll on the Constitution

Nearly two generations of Americans, born since 1980, knows of no life other than that under the drug wars spurred during the Reagan administration, complete with metal detectors and other intrusive searches in schools without particularized suspicion; draconian drug sentencing regimes involving lengthy mandatory minimum sentencing and harsh advisory drug sentencing guidelines; harsh bail laws for federal drug felonies; the DARE program; drug testing galore, again without particularized suspicion, for school and professional sports, and even to get a retail job; and the Fourth Amendment as a casualty of the drug wars.

With that backdrop, it is particularly heartening when a judge stands up to this sorry state of affairs. Car passenger Donald T. Hill was dragneted into a traffic stop detention that had all the hallmarks of a pretext to snoop around for contraband. Unfortunately, the Supreme Court generally permits such pretextual vehicle stops so long as they are based on lawful grounds to stop for a traffic law violation. Whren v. U.S., 517 US 806 (1996).

Here, Hill’s driver drove over the yellow line and slightly exceeded the speed limit. Despite the Supreme Court’s 2015 dictate in Rodriguez v. United States,135 S.Ct. 1609, that traffic stops must be concluded in a reasonable timeframe, and may not be prolonged without an independent lawful basis to do so, police detained Hill and his driver intending to have a drug-sniffing dog arrive and to spend at least six to eight minutes to check their criminal records on law enforcement databases, with the first records search a cursory search and the next a more in-depth search when Hill and the driver were initially listed as likely armed. United States v. Hill, ___ F.3d ___ (4th Cir., March 30, 2017).

During the more in-depth search of the car occupant’s criminal records, the remaining officer stayed with Hill’s car, making such so-called “small talk” (hardly small talk) that included repeatedly asking Hill and the driver whether the car had any drugs or firearms, to which Hill finally answered affirmatively about a gun after the third police inquiry about the same. The gun was found, and Hill ultimately entered a guilty plea to possession of a firearm by a convicted felon.

Ruling 2-1, Hill’s appellate panel okayed this lengthy detention of the car’s occupants and the resulting contraband-yielding police search, concluding:

In sum, the Supreme Court’s decision in Rodriguez [v. United States, 135 S.Ct. 1609,] does not require courts to second-guess the logistical choices and actions of a police officer that, individually and collectively, were completed diligently within the confines of a lawful traffic stop. We emphasize, however, that we are not confronted here with an officer’s decision to execute a traffic stop in a deliberately slow or inefficient manner, in order to expand a criminal investigation within the temporal confines of the stop without reasonable suspicion of criminal activity or consent of those detained. In such a case, an officer’s actions delaying the completion of a stop may compel a different conclusion than the one we reach here. In the present case, however, we hold that because the evidence shows that the officers acted with reasonable diligence in executing the tasks incident to the traffic stop, and the stop was not impermissibly expanded in scope or time beyond the pursuit of the stop’s mission, the district court did not err in denying Hill’s motion to suppress.”

In sharp retort, Senior Judge Andre Davis proclaimed:

Appellant Donald Hill was not a motorist. He was a passenger in a vehicle the operation of which violated the rules of the road because: (1) the operator’s driver’s license had been suspended and (2) the operator appeared to exceed slightly the posted speed limit and was observed to cross the double yellow line dividing the travel lanes of the roadway. Hill had nothing whatsoever to do with these violations. As a passenger in the vehicle who had not committed any violation of Virginia law, Hill had no obligation to identify himself to Officer Taylor (who apparently recognized him in any event) and failed (or declined, as was his right) to identify himself to the officer upon request. Thus, the proper timeline for the sole “mission” of the traffic stop in this case was to identify Jeremy Taylor (the driver) and issue whatever warnings or violation notices that Officer Taylor, in his discretion, chose to issue.

“What, then, could possibly justify Hill’s prolonged detention? The clear answer to this question is well known to all of us. This was no mere traffic stop. Rather, it was a narcotics and firearms investigation, undertaken in the absence of reasonable suspicion (to say nothing of probable cause) that a narcotics or firearms violation was taking place. Violent drug dealers have the sympathy of none of us; we rightly applaud, respect, and deeply appreciate the brave law enforcement officers who put their lives on the line every day to keep us safe from such violence. But the ill-fated ‘War on Drugs’ has a sometimes overlooked and unmentioned casualty: the Fourth Amendment. Here, the district court’s flawed findings easily satisfy the ‘clearly erroneous’ standard because every minute Officer Taylor spent seeking to confirm Hill’s identity unreasonably prolonged the traffic stop. Rodriguez v. United States, 135 S. Ct. 1609 (2015).”

Hill, Davis, J., dissenting (emphasis added).

Praised be Judge Davis for standing up in Hill, which hopefully will be reversed en banc. Hope springs eternal.

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