5 ms·

There are some important differences between the case that you cite and this case. Specifically, in this case the officer said that he had no reasonable suspic

by dsp1234 12y ago

There are some important differences between the case that you cite and this case. Specifically, in this case the officer said that he had no reasonable suspicion that another crime occurred, and the dog sniffing was not part of the exception for "officer safety". In the case you cited, the officers had an objective "reasonable suspicion" that a crime occurred (though obviously the accused in the case suggested it was not objectively reasonable, the court disagreed). Then during an investigation of the house, both for evidence of the crime in question, and to check the area for officer safety, the marijuana was found. If evidence of a crime if found while investigating a different crime (where the reasonable suspicion is met) or where it falls under the exception for "officer safety", then it's fair game. This decision doesn't change that standard, or even touch it since reasonable suspicion, and officer safety were not relevant to this case, and were relevant to the cited case. So on the surface, they may appear similar, but hit different points of the law. On the flip side, had evidence of the meth been visible in this case, or the officer had any other reasonable suspicion of a crime, then this case would have likely been decided differently.

xaa 12y ago
The question of whether the officer had reasonable suspicion here seems to be in dispute. The lower courts found there was no reasonable suspicion, and the majority assumed that in their response. Alito and Thomas' dissents cite some fairly compelling evidence that the officer did have reasonable suspicion: the vehicle occupants looked nervous, the officer smelled the overwhelming scent of air freshener (often used to mask drugs), and their story didn't make much sense. The dissents are a really good read: I'm against the drug war full stop but had to admit that within our current legal framework, this decision doesn't make much sense.
- belovedeagle 12y ago
  See page 9 of the ruling: the Court did not rule on reasonable suspicion in this case, and Ginsberg tells it like it is regarding the dissenters' focus. IANAL, but I think the gov't might be able to appeal right back up to SCOTUS on that issue if they think they can win, and it sounds like they could.
- trhway 12y ago
  >Alito and Thomas' dissents cite some fairly compelling evidence that the officer did have reasonable suspicion: the vehicle occupants looked nervous, the officer smelled the overwhelming scent of air freshener (often used to mask drugs), and their story didn't make much sense. when i was stopped by police (2 times during 15 years in US - for non-attached sticker and for allegedly "not obeying traffic control device") i was so nervous that my speech was pretty slurred and hands were shaking even like 10 minutes after the encounter, my story at least in the second case hardly made any sense - was driving home after hiking for several hours in the hills during July heatwave weekend and wasn't sure what sign the police was talking about... I guess i was saved by not-using air-freshener in my car - i guess nobody uses the smell of extremely sweaty dusty 40 year old male for masking the drugs. Thanks, God!
  - mapt 12y ago
    Yeah, this happened to me around a decade ago - same reason for stop, actually, tag holder was busted, and ended up pulled over at 2AM. Nervous voice, endorphin shakes, couldn't even figure out which bit of paper was the registration at first. Nothing to actually hide, just fear. Maybe having a crippling phobia of police stops is counterproductive, but it seems entirely warranted on the basis of what they're allowed and instructed to do. Spiders, snakes, public speaking, and flying are a hell of a lot safer than interacting with a police officer (one you're not related to) in any capacity at this stage of their militarization. And that's if your skin is the right color.
- dsp1234 12y ago
  from the majority: "As Struble later testified, at that point, Rodriguez and Pollman “had all their documents back and a copy of the written warning. I got all the reason[s] for the stop out of the way[,] . . . took care of all the business". Struble asked for permission to walk his dog around Rodriguez’s vehicle. Rodriguez said no. Struble then instructed Rodriguez to turn off the ignition, exit the vehicle, and stand in front of the patrol car to wait for the second officer. If the officer had reasonable suspicion to do a dog sniff, then he would not have needed to ask for permission. And the courts have generally concluded that refusing a voluntary search isn't evidence that a crime has been committed. So the conclusion that the dog search was based on a reasonable suspicion is not backed up by the officer's testimony, or by the officers actions.
  - dragonwriter 12y ago
    > If the officer had reasonable suspicion to do a dog sniff, then he would not have needed to ask for permission. An officer may seek permission for a search that he doesn't require permission; if nothing else, consent secures the evidence produced by a search from exclusion by a court that disagrees with the officer's own view of whether he had the requisite basis for making the search.
    - dsp1234 12y ago
      That's certainly true. However, that's only part of the equation, as the courts generally look at the totality of the circumstances, which include the officer's testimony (as I mentioned above)
anigbrowl 12y ago
Absolutely, but I think this ruling narrows the distance between these different areas of the law. I agree that currently it is fair game for an unsuspected crime to be prosecutable in the course of a legitimate search for another (and gave an example of why that could be a good thing), but I still think the original case represents a glaring failure of law. The defendant in this case allowed the officer to enter in good faith, so that the officer could reassure himself that no crime of violence had taken place and that the defendant's explanation of loud sexual activity was indeed truthful. Notwithstanding the contraband nature of marijuana, this good faith invitation should IMHO have been a massive mitigatory factor. The qualitative difference between the suspected and the actual crime are so great as to shock my conscience - not only are murder or rape considered more severe as evidenced by the heavier sentences they would attract, but they're also crimes of violence, and crimes involving a victim, whereas the harm that results from marijuana cultivation is proximate (at best) and to the extent that it even exists, is diffuse because the impact is societal. The fact that McGacken was sent to prison for 10 years Makes me want to throw up every time I think about it, especially because he was so cooperative with the investigation. (http://www.leagle.com/decision/in%20njco%2020100315165 http://www.leagle.com/decision/in%20njco%2020100315165 for people who would like to read the details; I should have linked this in the message above). I'm speaking here of moral rather than legal principle, ie I'm making a purely normative argument. On a technical level I agree with you completely, and I have yet to bridge the gap between moral and legal principle to my own satisfaction.
spiritplumber 12y ago
"Officer safety" is one of those things that can balloon out though. What if the officer doesn't feel safe until everyone is handcuffed in a corner and all the dogs are dead? (I'm exaggerating about the people, but sadly, not about the dogs).

by dsp1234 12y ago

xaa 12y ago

The question of whether the officer had reasonable suspicion here seems to be in dispute. The lower courts found there was no reasonable suspicion, and the majority assumed that in their response. Alito and Thomas' dissents cite some fairly compelling evidence that the officer did have reasonable suspicion: the vehicle occupants looked nervous, the officer smelled the overwhelming scent of air freshener (often used to mask drugs), and their story didn't make much sense. The dissents are a really good read: I'm against the drug war full stop but had to admit that within our current legal framework, this decision doesn't make much sense.

belovedeagle 12y ago
See page 9 of the ruling: the Court did not rule on reasonable suspicion in this case, and Ginsberg tells it like it is regarding the dissenters' focus. IANAL, but I think the gov't might be able to appeal right back up to SCOTUS on that issue if they think they can win, and it sounds like they could.
trhway 12y ago
>Alito and Thomas' dissents cite some fairly compelling evidence that the officer did have reasonable suspicion: the vehicle occupants looked nervous, the officer smelled the overwhelming scent of air freshener (often used to mask drugs), and their story didn't make much sense. when i was stopped by police (2 times during 15 years in US - for non-attached sticker and for allegedly "not obeying traffic control device") i was so nervous that my speech was pretty slurred and hands were shaking even like 10 minutes after the encounter, my story at least in the second case hardly made any sense - was driving home after hiking for several hours in the hills during July heatwave weekend and wasn't sure what sign the police was talking about... I guess i was saved by not-using air-freshener in my car - i guess nobody uses the smell of extremely sweaty dusty 40 year old male for masking the drugs. Thanks, God!
- mapt 12y ago
  Yeah, this happened to me around a decade ago - same reason for stop, actually, tag holder was busted, and ended up pulled over at 2AM. Nervous voice, endorphin shakes, couldn't even figure out which bit of paper was the registration at first. Nothing to actually hide, just fear. Maybe having a crippling phobia of police stops is counterproductive, but it seems entirely warranted on the basis of what they're allowed and instructed to do. Spiders, snakes, public speaking, and flying are a hell of a lot safer than interacting with a police officer (one you're not related to) in any capacity at this stage of their militarization. And that's if your skin is the right color.
dsp1234 12y ago
from the majority: "As Struble later testified, at that point, Rodriguez and Pollman “had all their documents back and a copy of the written warning. I got all the reason[s] for the stop out of the way[,] . . . took care of all the business". Struble asked for permission to walk his dog around Rodriguez’s vehicle. Rodriguez said no. Struble then instructed Rodriguez to turn off the ignition, exit the vehicle, and stand in front of the patrol car to wait for the second officer. If the officer had reasonable suspicion to do a dog sniff, then he would not have needed to ask for permission. And the courts have generally concluded that refusing a voluntary search isn't evidence that a crime has been committed. So the conclusion that the dog search was based on a reasonable suspicion is not backed up by the officer's testimony, or by the officers actions.
- dragonwriter 12y ago
  > If the officer had reasonable suspicion to do a dog sniff, then he would not have needed to ask for permission. An officer may seek permission for a search that he doesn't require permission; if nothing else, consent secures the evidence produced by a search from exclusion by a court that disagrees with the officer's own view of whether he had the requisite basis for making the search.
  - dsp1234 12y ago
    That's certainly true. However, that's only part of the equation, as the courts generally look at the totality of the circumstances, which include the officer's testimony (as I mentioned above)

anigbrowl 12y ago

Absolutely, but I think this ruling narrows the distance between these different areas of the law. I agree that currently it is fair game for an unsuspected crime to be prosecutable in the course of a legitimate search for another (and gave an example of why that could be a good thing), but I still think the original case represents a glaring failure of law. The defendant in this case allowed the officer to enter in good faith, so that the officer could reassure himself that no crime of violence had taken place and that the defendant's explanation of loud sexual activity was indeed truthful. Notwithstanding the contraband nature of marijuana, this good faith invitation should IMHO have been a massive mitigatory factor. The qualitative difference between the suspected and the actual crime are so great as to shock my conscience - not only are murder or rape considered more severe as evidenced by the heavier sentences they would attract, but they're also crimes of violence, and crimes involving a victim, whereas the harm that results from marijuana cultivation is proximate (at best) and to the extent that it even exists, is diffuse because the impact is societal. The fact that McGacken was sent to prison for 10 years Makes me want to throw up every time I think about it, especially because he was so cooperative with the investigation. (http://www.leagle.com/decision/in%20njco%2020100315165 http://www.leagle.com/decision/in%20njco%2020100315165 for people who would like to read the details; I should have linked this in the message above). I'm speaking here of moral rather than legal principle, ie I'm making a purely normative argument. On a technical level I agree with you completely, and I have yet to bridge the gap between moral and legal principle to my own satisfaction.

spiritplumber 12y ago

"Officer safety" is one of those things that can balloon out though. What if the officer doesn't feel safe until everyone is handcuffed in a corner and all the dogs are dead? (I'm exaggerating about the people, but sadly, not about the dogs).