Claimant gets past government’s motion for summary judgment on reasonable suspicion for his detention. Officer asked for consent, and it was refused, so he called for a drug dog which took 20-30 minutes to arrive. United States v. $102,836.00 in United States Currency, 2013 U.S. Dist. LEXIS 92813 (D. Nev. June 25, 2013)*:<\/p>\n
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After Phillips released Cruz, however, Phillips had a Columbo-esque just-one-more-thing request: could he search Cruz’s car? Cruz declined, and Phillips then detained Cruz “20 or 30 minutes” more while they waited for the canine unit to arrive. Cruz has demonstrated a genuine issue of material fact with respect to whether this latter detention was supported by reasonable suspicion. First, the legality of Cruz’s second detention is “material” for the purposes of summary judgment because the exclusionary rule applies in civil forfeiture cases. United States v. $493,850.00 in U.S. Currency, 518 F.3d 1159, 1164 (9th Cir. 2008). Whether the subsequent search of Cruz’s car may be excluded as the consequence of an illegal detention, see id., turns on Phillips’s “particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (defining “reasonable suspicion”). <\/p>\n
Therefore, the reasonableness of Phillips’s suspicions is a “fact which might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. Second, at summary judgment, the evidence of the non-moving party is to be believed, id. at 255, and an inquiry into the implausibility of the non-movant’s direct evidence is prohibited, McLaughlin v. Liu, 849 F.2d 1205, 1207-08 (9th Cir. 1988). While Phillips based his reasonable suspicion on Cruz’s nervousness, Cruz’s prior drug conviction, Cruz’s convoluted travel history, and the smell of marijuana emanating from Cruz and his car, Cruz has directly challenged the presence of any drug odor. Moreover, Cruz did not have marijuana in his car or on his person, Phillips did not ask Cruz about marijuana, and Phillips never searched Cruz’s car based on probable cause that there was contraband within-probable cause furnished by the smell of drugs. See United States v. Barron, 472 F.2d 1215, 1217 (9th Cir. 1973). Taking the evidence in the light most favorable to Cruz, therefore, the court interrogates the first three facts\u2013Cruz’s nervousness, prior conviction, and strange travel history-for their sufficiency in supporting Phillips’s reasonable suspicion.<\/p>\n
There is a genuine issue of material fact as to whether these three facts may support the reasonable suspicion necessary to detain Cruz “20 to 30 minutes” in anticipation of the canine unit. …<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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