Cops & Fishing Expeditions

North Carolina Cops & Fishing Expeditions

After reading the recent North Carolina Court of Appeals case of State v. Fisher, decided a few weeks ago, I can’t decide whether to laugh, cry or slap someone.  What a great name, though,  for a case that allows cops to go on fishing expeditions in the hopes of finding something when they have no reason to believe there’s anything to find.  And we’re the fish.

This case deals with the frequently-litigated issue of how long a  policeman can detain a person after a lawful stop has ended…or should have ended.  Generally, when the encounter for whatever the reason was for the cop initiating the encounter is over, the policeman must let the person go.  In State v. Falana, a North Carolina appellate case of several years ago, the Court found that the cops over-extended their detention of a person who they had stopped while driving his car for some moving violation when, after issuing him a warning,  they made him wait for about twenty minutes for a drug dog to come and sniff around the person’s car.   They can’t do that.  The Falana court got it right.

The fishing expedition the cops went on in Falana was unreasonable.  The Fisher fishing expedition that the cops in Fisher went on was, the Court found, reasonable.  You decide.

Details Of The Case

In Fisher, the Defendant was stopped for not wearing his seatbelt — which is fair enough.  The cop stated that the Defendant’s “diligent” driving with both hands on the steering wheel while driving the speed limit in a pack of cars on Highway 70 near Goldsboro was also suspicious (This reminds me of a DWI I had a few years ago in which the cop testified that it was suspicious that my client’s eyes were unusually white).

The cop followed the car for about three miles, ran the tag and found that the car was registered to an elderly lady in Pamlico County.  This fine member of the local constabulary decided that this fact was suspicious because, in his experience, 90 per cent of his drug seizures came from “third party vehicles” —  that is: vehicles registered to someone other than the driver (don’t drive your Grandmother’s car).  The constable also noticed that there was a handprint on the trunk of the car, indicating that something had been recently placed in the trunk of the car — “another indicator that Defendant was a drug courier.”  (Hard not to editorialize here.  Oh, what the hell:  Every time I put something in my trunk, I’m a suspected drug-courier?  Evidence that I, at some point, have put something in my trunk, makes me a suspected drug-courier?  That’s it then: no more loading up my kids’ bikes in my trunk. Sorry kids).

After these astute observations by one of Wayne County’s finest, the cop pulled the driver for not wearing his seatbelt (again, fair enough, that’s a good stop).  He then noticed that there was a strong odor of (get this)  air-freshner in the car (another sign that the driver was a drug courier), that there was a bag of fast food in the car (an indicator that the driver was “in a hurry” and “did not want to leave his car unattended”), and that, while the Defendant said he had gone to Smithfield to go shopping, he had no shopping bags in his car (Apparently having a disappointing shopping trip, makes you a likely drug-courier).

After about five or six minutes of presumably fascinating intercourse between the cop and the driver, the cop told the Defendant that he would have to wait for a drug dog to come and sniff around his car.  The cop told the Defendant that he believed him to be a drug courier.  The cop then asked the driver for consent to search the car, which the driver declined (good for him).  The cop told the driver that he would receive a warning for the seatbelt violation.  The cop testified that the driver was nervous even after being told that he would be issued a warning.

The cop then called the Pamlico County Sheriff’s Department to inquire about Mr. Fisher.  The Pamlico County Sheriff told the stopping cop that Mr. Fisher was a known drug dealer who actually had pending drug charges against him.

Twenty minutes or so later, the drug dog “Emmy” arrived and, in whatever manner it is that dogs communicate these things to cops, informed the cop that there were drugs in the car.  The cop searched and found two pounds of weed in the trunk.

The trial judge granted the Defendant’s motion to suppress based on the unreasonableness of the delayed detention.   Good for him or her.  The State appealed and the Court of Appeals reversed. What a shame.  The Court of Appeals found that the Defendant’s nervousness, his not buying anything in Smithfield, the smell of air-freshner in the car, and his driving a car registered to someone else were enough to give rise to the reasonable suspicion of criminal activity justifying the prolonged detention to get the drug dog.  The other things the cop said he considered — the handprint, the fast-food bag, driving well — were not appropriate factors to consider.  How reassuring.

What Do You Think About The Case?

Again.  You decide.  Don’t be swayed by the fact the cop was right — the ends don’t justify the means. The standard on any level of probable cause is “objectively reasonable.”  So, it is objectively reasonable to believe this: when you drive your Grandmother’s car that smells of air-freshner, choose not to buy something when you go shopping, act nervous when pulled by a cop, you’re a criminal.

Fish.

Contact John McWilliam: The Raleigh Criminal Lawyer

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2016-07-29T21:33:24+00:00