Sunday, May 27, 2012

Tenth Circuit US v. Benard 11-4005

Decision here.

   This one addresses a lot of different issues, so it'll be a long post.

   So the FBI was investigating Mr. Sanchez, who they believed was selling drugs out of his tire shop.  As part of their investigation, put an authorized wire tap on his phone, and sometimes set up surveillance outside of the shop.  They identified one of Sanchez's regular customers as "Tommy."  Although Tommy did buy tires from Sanchez one time, based on the content of their phone conversation and on the surveillance the FBI had plenty of reason to believe that Tommy usually went to Sanchez for drugs.

   On five different occasions, Tommy showed up at Sanchez's shop shortly after suspicious phone calls (which didn't explicitly mention drugs, but which did talk about the price of a cooked up product measured in ounces).  Agents checked Tommy's plate, learned that he was Reshard Benard, confirmed his identity by obtaining his driver's license photo, and also learned that he had a previous conviction for possession of a firearm in furtherance of drug trafficking.

   Then, one day, Benard called Sanchez and arranged to buy 2.5 oz of whatever it was Sanchez was supplying him with.  Benard showed up at the arranged time, was in the tire shop for five minutes, and left.  Agents followed him, and then contacted a Utah State Trooper to arrange for a wall stop.  The trooper was not informed of the details of the investigation, but he was informed of the description (and license plate) of Benard's car, its location and direction of travel, and of Benard's history of weapons possession.  The trooper was directed to find his own reason to stop Benard, and then conduct his own investigation.  Very much a typical wall stop.

   The trooper found Benard's car, but apparently couldn't find a decent violation.  He cleared the license plate, found that there was no insurance information on file with the Utah DMV, and made a traffic stop based on the apparent NPOI violation.  (side note: there is no way in hell that I would stop someone on such a flimsy basis.  Which means that I also wouldn't use it as a basis for a wall stop.  Maybe Utah DMV is more on-the-ball than Colorado DMV, but I wouldn't consider "no insurance info on file" sufficient to establish reasonable suspicion.  I don't know if the trooper normally makes traffic stops based on such weak evidence or if he was bending the rules because the FBI wanted him to make a stop.  Either way... damn!)

   So.  The trooper makes a traffic stop, and Benard pulls into a private driveway and stops.  Benard starts to get out of the car, and the trooper tells him to stop.  Some of Benard's friend's come out of the house, and the trooper tells them to go inside.  Everyone cooperates.  The trooper then instructs Benard to get out of the car, lightly touches his back to direct him to the back of the car, and then asks for consent to pat Benard down.  Benard consents, and the trooper finds cocaine (initially identified as Mexican candy) and weed.  The trooper handcuffs Benard, and asks him if he's going to find anything else in the car.  Benard mentions that his girlfriend's gun might be in the car.  Another trooper searches the car and finds the gun.

   Benard filed a motion to suppress all the evidence based on several grounds: 1- He argued that the traffic stop was unjustified.  2- He argued that his consent to be searched was coerced and invalid.  3- He argued that  his statements (about the weed in his pocket and the gun in the car) should be suppressed since he was never advised of his Miranda rights.  The trial court denied his motion to suppress, so he conditionally pled guilty but appealed the denial of his motion to suppress.

   The 10th Circuit made the following observations regarding the traffic stop: The trial court had held that the stop could be justified either by the FBI's probable cause to believe that the car contained contraband, or by the trooper's reasonable suspicion that the car was uninsured.  Benard argued that there the FBI did not have PC, since they knew him to have actually purchased tires from Sanchez.  The tenth ruled that all of the information gathered by the FBI was sufficient to establish PC, and also that based on the collective knowledge doctrine it didn't matter whether or not the trooper knew that there was PC so long as he was acting on the directions of officers who did know.  Stopping Benard based on the FBI's evidence and giving Benard a cover story (like the insurance violation) to keep him in the dark about the investigation was held to be a valid law enforcement tactic.  Since the court held that the stop was justified based on the FBI's investigation, the court declined to consider whether or not the trooper's "reasonable suspicion" was valid.

   As far as consent, the court noted that the officer ordered Benard and his friends around, spoke assertively and with authority, and touched Benard on the back  when guiding him to the rear of the car.  Also, there were two officers present for the stop.  On the other hand, neither officer behaved aggressively or threatened anyone, they didn't draw their guns, and the physical contact between the officer and Benard was not forceful. In light of all the factors, the court decided that the officers did not coerce Benard and his consent to be searched was valid.

   That leaves the Miranda issue.  The court recognized that even investigative stops can require Miranda warnings if an officer takes certain intrusive steps to protect himself.  The court gave an example of a previous case where a suspect was proned out at gunpoint while police helicopters circled overhead, and the court had held that Miranda warnings were required.  But this case is not like that one, and the incriminating statement that Benard made during the search (admitting that he had weed in his pocket) was held to be admissible without a Miranda waiver.  The statement about the gun was made after Benard was handcuffed and clearly in custody, though.  The trial court had reasoned that this was still an admissible statement under the public safety exception to Miranda, but the 10th circuit was having none of that.  For one thing, the trooper wasn't asking about weapons, he was asking about anything that he might find in the car.  For another, even if he had been asking about weapons, there was no real likelihood that a gun concealed in Benard's car would fall into innocent hands if not quickly recovered.  The court held that Benard's statement that there might be a gun in the car should have been suppressed.

   Because only some of the evidence against him should have been suppressed, Benard was given the option to either be bound by the terms of his plea agreement (which included a 20 year sentence) or withdraw his guilty plea and stand trial.

2 comments:

  1. LOVE your side note btw, and neither would I...if his driving was so good this trooper couldn't find a single legit vio., then I'm sure the FBI other ways to contact this guy. It appears the court is giving it's target audience WAY too much credit, and can probably expect to reverse this decision with extreme prejudice in the near future.

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    1. I love cops, but the court is giving us a lot of rope with this decision and someone is going to hang themselves with it.

      I don't mind wall stops. I'm good with stopping a suspect based on someone else's investigation. I'm even good with the idea of using a cover story to mask the investigation, as long as the stop is reasonable based on whatever facts I have. If the FBI wants the stop to be governed by their information, then they need to either make the stop themselves or give me their information (preferably the former). The reason I object to this decision is that the trooper was specifically not told that the FBI had PC, so allowing the FBI's PC to justify a stop that he made is really dangerous.

      I think the rest of the decision is much sharper, though. Although I've never been okay with cops who try to bully people into consent, I also don't think that suspects should get away with crying wolf about that. And I've always hated it when cops start saying things like "is there anything in the car? I'm gonna find it anyway" to prisoners. I think Miranda isn't really such a difficult decision to abide by, but a lot of cops try to ignore it whenever someone hasn't actually been transported to the jail. Can't blame the court for telling us to knock it off.

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