CA2: Successive stops in two states within minutes are individually evaluated; performance records of dog discoverable

Defendant was a regular drug courier between NYC and Burlington VT. He was stopped first in Massachusetts and detained for 22 minutes because the paperwork on the rental car was suspect. The rental car company said there was no problem as long as they got the car back. The state trooper called her counterpart in Vermont and there was another stop based on another traffic stop, and this time defendant had apparent cocaine obvious in his nose hairs. That stop was 40 minutes long. The two consecutive stops are considered separately since there was a separate factual basis for both. United States v. Foreste, 2015 U.S. App. LEXIS 3766 (2d Cir. March 11, 2015):

C. Whether Foreste’s Stops Should Be Considered Together

In this case, Foreste argues that the reasonableness of the investigative detentions following each traffic stop should be considered together because, in his view, Trooper Loiselle and Sergeant Albright were working together, and each detained him as part of a joint drug investigation. The record shows otherwise. Not only was each stop supported by a separate traffic infraction and probable cause, but, critically, independent reasonable suspicion justified the extension of each stop for further investigation. During the Massachusetts stop, Trooper Loiselle’s suspicions revolved around the expired rental agreements and uneasiness with the demeanor of Foreste and Cesar. The hunch driving her investigation seems to have been that the rental car was stolen. She did not learn from Albright that Foreste was suspected of transporting drugs until after she had released the vehicle.

By contrast, the reasonable suspicion justifying Sergeant Albright’s detention of Foreste in Vermont was quite different. Unlike Trooper Loiselle, Albright knew that Foreste was implicated in drug trafficking, after stopping the vehicle he observed what he believed to be marijuana “chafe” on Cesar’s pants, and as he spoke with Foreste he noticed white residue in his nostrils consistent with the inhalation of powdered narcotics. Because independent6 grounds for suspicion of criminal activity justified the extension of each stop, the reasonableness of the investigations’ scope
and duration should be evaluated separately.

D. The Reasonableness of the Stops

“[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality opinion). In determining whether a reasonable-suspicion-based extension of a traffic stop for investigatory purposes is reasonable, courts consider (1) whether the officer’s action was justified at its inception; and (2) “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” United States v. Sharpe, 470 U.S. 675, 682, 686, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985).

Considered individually, both the Massachusetts and the Vermont stop were reasonable in duration and scope. Trooper Loiselle properly stopped Foreste and Cesar’s vehicle for speeding. She then briefly asked Cesar and Foreste questions about where they were coming from and where they were heading, made a call to her dispatch officer to sort out the expired rental agreements, and placed a call to Sergeant Albright because the pair seemed suspicious. Loiselle suspected that criminal activity (auto theft) might be afoot, and took a reasonable amount of time, a total of only twenty-two minutes, to dispel that suspicion.

On the dog’s field performance records, the government objected under Florida v. Harris:

Critically, however, Harris did not hold that field performance records are irrelevant—only that they are not required. In explaining why, the Court described how the risk of false positives and false negatives makes field records less probative than one might think. But that is far different from holding that they are entirely irrelevant. Instead, Harris explained, a probable cause hearing focusing on a dog’s alert should proceed much like any other. The state should produce its evidence of the dog’s reliability (including certifications and performance in controlled settings), the defendant should be given the opportunity to dispute the dog’s reliability, and the court should then weigh the competing evidence. The defendant might, for example, “contest the adequacy of a certification or training program … [or] examine how the dog (or handler) performed ….” Id. Although susceptible to misinterpretation, the dog’s field performance records are relevant to that inquiry. Furthermore, the principle that a defendant “must have an opportunity to challenge such evidence of a dog’s reliability,” id., would be stripped of its value if the defendant were not entitled to discover the evidence on which he would base such a challenge.

Harris counsels caution, but it does not dictate an about-face from this Court’s long-standing position that a canine’s field performance is relevant to the probable cause inquiry. See, e.g., United States v. Waltzer, 682 F.2d 370, 372–73 (2d Cir. 1982) (probable cause based on field record of perfect accuracy). The district court’s decision to deny Foreste’s request for the narcotics canine’s field performance records on the ground that they were “not controlled instances” and thus “don’t tell you anything” was based on an erroneous view of the law and constituted an abuse of the court’s discretion.