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.

The government showed probable cause for the search warrant for defendant’s computer at a business based on tips from two CIs that included a reference to defendant traveling to the Philippines where he allegedly obtained child pornography and the State Department confirmed his travel there and the CIs having seen child porn on defendant’s computer. It was not required that the specific sex acts be described. United States v. Pavulak, 672 F. Supp. 2d 622 (D. Del. 2009):

With respect to defendant's contention that the descriptions of the images were insufficient to establish probable cause that defendant was violating state child pornography laws because there are no allegations of nudity, sexual contact, or lascivious exhibition of the genitals or pubic area, the court finds that the totality of the circumstances still provided a substantial basis for the judge's finding of probable cause. United States v. Dennington, No. 01:07CR43, 2009 WL 2591763, at *21 - 22 (W.D. Pa. Aug. 21, 2009) (court found agent's affidavit when "read in a holistic, practical and non-technical manner" provided a substantial basis for the magistrate's determination that there was probable cause to believe there was pornographic material on defendant's computer).

Government overlooked defendant passenger's argument that his stop and the subsequent plain view violated his rights, too, under Brendlin. "Few things are clearer about Fourth Amendment doctrine than this: the passenger of a motor vehicle has standing to challenge the constitutionality of the stop of that vehicle by the police. See United States v. Ross, 280 F. App'x 947, 948 (11th Cir. 2008) (citing Brendlin). Defendant clearly mounts such a challenge in this case. The government's no-standing argument is utterly bogus." On the merits, however, "The Court is persuaded that, under the particular circumstances of this case, Officer Fletcher was entitled to stop the subject vehicle in order to investigate his suspicions that its occupants had just committed a crime, or perhaps had witnessed criminal activity." Therefore, the plain view was valid, and the motion to suppress is denied. United States v. Bradley, 2009 U.S. Dist. LEXIS 110732 (S.D. Ga. November 5, 2009).*

Excessive and unnecessary destruction of property during execution of a search warrant states a claim for relief. Pacific Marine Ctr., Inc. v. Silva, 2009 U.S. Dist. LEXIS 110617 (E.D. Cal. November 30, 2009):

"[O]fficers executing search warrants on occasion must damage property in order to perform their duty." Dalia v. United States, 441 U.S. 238, 99 S.Ct 1682, 60 L. Ed. 2d 177 (1979). "Destruction of property that is not reasonably necessary to effectively execute a search warrant may violate the Fourth Amendment." Tarpley v. Greene, 684 F.2d 1, 221 U.S. App. D.C. 227 (D.C. Cir. 1982). "The general touchstone of reasonableness which governs Fourth Amendment analysis, … governs the method of execution of [a search] warrant. Excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search not subject to suppression." U.S. v. Ramirez, 523 U.S. 65, 71, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998) ("[e]xcessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful."); See Liston v. County of Riverside, 120 F.3d 965, 979 (9th Cir. 1997) ("only unnecessarily destructive behavior, beyond that necessary to execute a warrant effectively, violates the Fourth Amendment"). "An officer's conduct in executing a search is subject to the Fourth Amendment's mandate of reasonableness from the moment of the officer's entry until the moment of departure." San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 971 (9th Cir.), cert denied, 546 U.S. 1061, 126 S. Ct. 796, 163 L. Ed. 2d 627 (2005). Therefore, the touchstone of conduct during a search is "reasonableness."

Plaintiffs have alleged conduct which may go beyond "reasonableness" to execute the warrant. Plaintiffs have adequately plead that defendant Essegian unnecessarily destroyed property during the search. Plaintiff alleges that the business was "ransacked" and all of the business documents were thrown about the business premises, and the surveillance equipment was ripped from the wall. In his motion, Essegian asks the Court to make factual determinations that Essegian was justified in doing the things alleged in the complaint as part of the scope of the search. Whether the conduct was necessary to effectively execute the search warrant is a factual question which cannot be determined at this point of the litigation. At this stage of the pleadings, the Court must accept as true the allegations of the complaint and construe the pleading in the light most favorable to plaintiffs. Lazy Y. Ranch LTD v. Behrens, 546 F.3d at 588.

More Safford

Safford Unified School District No. 1 v. Redding is noted in Harvard Law Review.

Community Caretaking Function in Wisconsin

In the Wisconsin State Bar journal: Wisconsin Supreme Court to consider reach of police ‘community caretaker’ as warrant exception, about State v. Pinkard, set for oral argument January 7.