Criminal Interdiction Team’s search of car and person was without consent or suspicion after a traffic stop

National Park Ranger’s traffic stop of the defendant for driving on parking lights was valid, but the subsequent search, allegedly by consent that was belied by the video of the stop, was not, so the court suppresses a patdown based on alleged consent that was preceded by a complete search of the vehicle and luggage in it before the patdown without any suspicion or valid consent. United States v. Moore, 2007 U.S. Dist. LEXIS 79587 (W.D. Va. October 26, 2007):

The court cannot find, even under the relatively low Terry standard, that the government has met its burden and that the search in this case was legal. No reasonable articulable suspicion existed to justify the prolonged detention and questioning of Moore. Ranger Gagnon testified that as he approached the vehicle, Moore placed both his hands outside of the vehicle, demonstrating his willingness to cooperate. Moore’s continued cooperation, talkative demeanor and friendly attitude does not suggest that crime was afoot. Finally, Ranger Gagnon testified that Moore was breathing heavily, sweating, and taking his hat on and off during the stop, but the video does not bear this out. Review of the video shows that Moore did not take his hat on and off in a nervous manner as the Ranger testified. Instead, Moore took his hat off once when Ranger Gagnon ordered him out of the truck. Rather than appearing nervous, shifty, or suspicious in any degree, Moore appeared cooperative and friendly on the video. Furthermore, in the video, Ranger Gagnon explicitly states to Moore that he wasn’t “sweating when [he] got out of the vehicle” and only began sweating after the Ranger patted him down and found the marijuana pipe.

The video shows that Ranger Gagnon requested Moore’s license and ordered him to exit the vehicle immediately after Moore told Ranger Gagnon that he was at Floydfest. At this point in the stop, a mere twenty-five seconds into it, the only activities that Ranger Gagnon witnessed to provide any basis for a reasonable articulable suspicion were Moore’s placing of his hands out of the truck’s window as Ranger Gagnon approached vehicle and Moore’s statements that he thought he had his lights on, was looking for a place to get coffee, and that he just left Floydfest. Ranger Gagnon does not ask any questions about why Moore had his hands out of the vehicle or otherwise mention it, thus leaving Moore’s statement as to where he had been as the only possible source of suspicion. In contrast to the Ranger’s testimony, on the video Moore does not seem nervous, his responses seem perfectly normal, and there is no indication that he is breathing heavily. One aspect of the stop that Ranger Gagnon did testify about correctly was Moore’s cooperative, friendly, and polite behavior.

Thus, the only basis for any suspicion that the court can glean from the video is Moore’s statement that he had been at Floydfest. As explained above, Floydfest is an annual music festival held in Floyd County, Virginia. To access the festival, many people travel on the Parkway. Due to the increased volume of traffic on the Parkway, the NPS has established a Criminal Interdiction Team, the focus of which is festival attendees. Ranger Gagnon testified that the focus of the Criminal Interdiction Team was drugs, alcohol, and weapons, mirroring the line of questioning posed to Moore and his passenger.

Search of vehicle was shown to be by consent. Defendant’s inquiry as to the consequences of refusal showed she knew what was going on. United States v. Simmons, 2007 U.S. App. LEXIS 25260 (3d Cir. October 26, 2007)* (unpublished).