M.D.Fla.: Marijuana flakes on passenger’s pants not PC as to everybody in car

Officers conduct admittedly pretextual stops in the downtown Orlando area to show police presence to deter crime. The car was stopped and the occupants told to put their hands up. Here, a seatbelt stop led to noticing marijuana flakes on the backseat passenger’s pants. That did not translate into PC that everybody was in possession under Maryland v. Pringle. Defendant driver’s gun is suppressed. United States v. Sampson, 2015 U.S. Dist. LEXIS 38510 (M.D.Fla. March 26, 2015):

As is typically the case in litigating the propriety of police conduct in Fourth Amendment cases, law abiding citizens man the watchtowers of liberty with convicted felons, bad actors, and indisputable criminals. Caught red-handed, they are left to make the case that “the criminal is to go free because the constable has blundered.” People v. Defore, 150 N.E. 585, 587 (1926), abrogated on other grounds by Linkletter v. Walker, 381 U.S. 618, 633 (1965).

The instinct, experience, intuition, and “nose” for ongoing criminal activity displayed by these officers in this situation cannot be questioned. The officers thought something was amiss and their instinct proved correct—they recovered a loaded firearm from Sampson, a previously convicted felon. However, the correctness of hindsight is not the proper lens for constitutional scrutiny. The cost of abandoning the protections of the Fourth Amendment exacts too high a price to allow the result of the search to filter its constitutional propriety.

The totality of the circumstances leading up to the search of Sampson simply do not amount to probable cause that Sampson had committed, was committing, or was about to commit a crime. The search therefore contravened the Fourth Amendment and the fruits of that search as well as Sampson’s statement post-search must be suppressed.