D.Minn.: Defense succeeded in undermining officer’s justification for stop and wins suppression

The USMJ finds that the officer in this case was not credible when he testified that he smelled the strong odor of burnt marijuana when he stopped the defendant’s car. Based on all the factors, analyzed by the court, the content of police reports, the videotape of the stop, and the contemporaneous radio reports, the testimony is just not believable. United States v. Dolson, 673 F. Supp. 2d 842 (D. Minn. 2009).* In the overall scheme of things, this case is not citable for any proposition of law, but it is instructive to defense counsel:

Each of the aforementioned inconsistencies and mischaracterizations, viewed in isolation, might not undermine Trooper Engum’s credibility. Viewed as a whole, however, they demonstrate that Trooper Engum has — whether deliberately or unintentionally — shaded the facts surrounding the traffic stop in a way that would make the search and seizure less constitutionally suspect than it in fact was. Cf. United States v. Portmann, 207 F.3d 1032, 1033 (8th Cir. 2000) (per curiam). Therefore, the Court makes the following additional factual findings regarding Trooper Engum’s testimony.

The Court concludes that during Trooper Engum’s first contact with the Suburban, he did not smell a strong odor of burnt marijuana and he intended only to ticket Dolson for failing to place the children in child restraints. Trooper Engum offered no credible explanation for the inconsistency between the purported odor of marijuana and his conduct and statements to the Task Force when he first returned to the squad car. See United States v. Hatcher, 275 F.3d 689, 692 (8th Cir. 2001) (per curiam). The Court concludes that Trooper Engum’s references to the odor of marijuana were a pretext for prolonging the stop and for questioning Dolson about drugs.

The Court concludes that the vehicle registration issue did not cause or justify any delay, because Trooper Engum was aware of and investigated the issue during his first contact with the vehicle. Trooper Engum’s testimony to the contrary appears to be a post-hoc attempt to justify his delay in calling for a canine unit. The Court concludes that the actual reason Trooper Engum delayed calling for a canine unit was because Trooper Engum did not smell a strong odor of burnt marijuana during his initial contact with the vehicle, and therefore he had no reason to call for a canine unit.

The Court concludes that Trooper Engum was justifiably concerned that Dolson might be armed after he removed Dolson from the vehicle. Nonetheless, after careful review of the videorecording, the Court concludes that Dolson never refused Trooper Engum’s directions to place his hands on the hood of the squad car and never conducted himself in a way that manifested any physical threat to Trooper Engum. Trooper Engum’s testimony to the contrary constitutes an effort to justify his decision to unholster his sidearm.

. . .

The Court concludes that Trooper Engum exaggerated Dolson’s alleged willingness to sit in the back of the squad car. This exaggeration constitutes an effort to characterize the circumstances of Trooper Engum’s questioning of Dolson after the pat-down as non-custodial.

The Court concludes that Trooper Engum repeatedly mischaracterized when he questioned Dolson about the last time someone smoked marijuana in the Suburban. In so doing, Trooper Engum attempted to render that question non-custodial. Trooper Engum also repeatedly mischaracterized Dolson’s response to the question in a way that would corroborate Trooper Engum’s testimony that he smelled a strong odor of burnt marijuana coming from the vehicle.

The Court concludes that Trooper Engum’s testimony about the canine sniff of the vehicle exterior is inconsistent with the videorecording and with the canine handler’s report. Trooper Engum’s testimony represents an effort to present evidence corroborating his claim that he smelled a strong odor of burnt marijuana during his first contact with the vehicle. Trooper Engum’s testimony about the importance of the canine allegedly indicating on the exterior of the vehicle also undermines the credibility of his proffered justification for searching the interior of the vehicle.

The Court concludes that Trooper Engum’s statement to Dolson informing him that he was not under arrest amounts to a post-hoc attempt to render the interrogation non-custodial.