In State v. Casey, 2014-Ohio-2586, the court threw out a possession of marijuana and paraphernalia charge based on the officer’s violation of the driver’s Fourth Amendment rights.  

Even though the driver passed field sobriety tests, the officer made the driver sit in his cruiser and wait for a canine unit to search his car for “marijuana or guns” (the officer wasn’t sure which).  The only basis for the detention was that the driver was “acting nervous.”  

Acting nervous by itself is not enough to support a detention by police.  So, all drug-related charges were dismissed.  Here is what happened:

The Search: A Rear Bumper Stop Turns Into a Marijuana Charge

In this case, the officer observed a car without a rear bumper and with a dangling rear license plate.   The officer pulled the car over.  When he approached, the officer said he smelled an odor of alcohol coming from the vehicle. He asked the driver to step out of the car and perform field sobriety tests. 

The driver said he had nothing to drink and agreed to the field sobriety tests.  After completing the tests, the officer concluded that the driver was not impaired. 

While still out of the vehicle, the officer asked if there was anything illegal in the car, like drugs or weapons.  The officer testified that after asking that question, the driver’s “demeanor suddenly changed” and he became very nervous.  

Because the driver was acting strange, the officer asked if he could search the car.  The driver refused to give consent.  So, the officer called a canine unit and put the driver in the back of the cruiser while he waited for the dogs to arrive. 

The canine until arrived about 15 minutes later.  The officer asked again if there was anything illegal in the car.  This time the driver admitted that he had marijuana and a pipe in the car’s center console. 

The canine unit searched the car and alerted to the marijuana.  The officers searched and found a bag of marijuana, a marijuana pipe, and a set of scales.  The driver was charged with minor misdemeanor possession of marijuana, possession of drug paraphernalia (which both carry a six month driver’s license suspension), and improper bumper height.

The Motion to Suppress: A Driver Acting Nervous Is Not Enough to Detain Him and Search His Car

In court, the driver moved to suppress all of the evidence of marijuana and paraphernalia found in the car based on a violation of his Fourth Amendment Rights.  

The initial stop for the rear bumper was proper.  Also the officer had a right to ask the driver to conduct field sobriety tests.  But once he passed those tests, he did not have reasonable suspicion to keep the driver any longer. 

Generally, when a cop stops a car for a traffic violation, the officer can only keep the driver for the amount of time necessary to issue a traffic citation and to perform routine procedures, like a computer check on the  driver’s license, registration, and vehicle plates.   An officer cannot detain a driver to do a search of his car or for any other reason on just the officer’s hunch that the driver might be hiding something. 

Here, the officer was not permitted to extend his investigation and continue to detain the driver after he passed the field sobriety tests.  The officer was not allowed to detain the driver while he waited for a canine unit.  

If the dogs had already been there when the traffic stop started, that might be another story.  The U.S. and Ohio Supreme Courts have found that a trained dog sniffing the outside of a car isn’t a “search” within the Fourth Amendment.   So, if the officer had the dogs sniff the car while he was writing the traffic citation, that probably would have been constitutional.

But here, where the officer made him wait for 15 minutes in the back of the cruiser for the canine unit to arrive, is not.   In order to make a driver wait, the officer has to have reasonable suspicion that drugs are in the car.

Here, the prosecutor argued that the officer did have reasonable suspicion because the driver was acting nervous when asked if anything illegal was in the car.   He testified that he didn’t know if it was guns or drugs, but he thought there was “something illegal” in the car based on how nervous the driver was acting.  In other words, he was fishing for evidence of a crime.  

All Marijuana Possession & Paraphernalia Charges Dismissed

The court agreed with the defense.  Just because a driver acts nervous when talking to police cannot on its own support reasonable suspicion to detain him.  There are many reasons why someone would be nervous talking to a police officer during a traffic stop – many of which have nothing to do with illegal activity. 

Because the driver’s Fourth Amendment rights were violated here, all evidence of marijuana, pipe and other paraphernalia found in the car were thrown out.  As a result, all drug-related charges were dismissed.

If you have been charged with possession of marijuana or paraphernalia in Columbus or Delaware County, call our Columbus marijuana possession attorneys for a free consultation – (614) 361-2804.  If the marijuana was found as a result of a search of your car or person by police, it is worth investigating whether the police violated any of your constitutional rights.   If so, like here, there is a chance your charges could be dismissed.  

 

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