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Motion to Suppress Evidence – All Evidence Seized & Obtained

COMES NOW the Defendant, by and through his undersigned counsel, respectfully moves this Honorable Court to suppress any and all evidence seized and/or obtained from the client, including all items found in his vehicle, any and all written and oral statements made by him, and the observations of the officers, and in support thereof, states as follows:

STATEMENT OF FACTS

1. On June 19, at approximately 6:30 a.m., the client was stopped on I-10, while traveling in his vehicle in St. Martin Parish. Criminal Arrest Report.
2. Sgt. J. M. T., with the Louisiana State Police, reported he observed the client’s vehicle, a maroon Honda van, traveling east in the outside/slow lane of I-10. Criminal Arrest Report.
3. Sgt. T. stated that, as he approached the vehicle from behind, the vehicle slowed to less than 60 miles per hour, in a 70 mile per hour zone. Criminal Arrest Report.
4. Sgt. T. stated he observed the client’s vehicle veer to the right, causing the right tires to cross the white fog line. Criminal Arrest Report.
5. Sgt. T. allegedly stopped the client for a violation of L.R.S. 32:79, Improper Lane Usage.
6. Sgt. T. had video recording equipment in his vehicle, which he activated as he began to follow the client.
7. A review of the video recording reveals that the client’s vehicle did not swerve or weave, and the right tires did not cross the right fog lane. Video Recording.
8. Sgt. T. stopped the vehicle at mile post 114, and ordered the client out of the vehicle. The client complied with Sgt. T.’s order. Criminal Arrest Report.
9. Upon request, the client produced a valid Texas driver’s license. Criminal Arrest Report.
10. The client explained that he had slowed down because he believed the speed limit reduced to 60 miles per hour on the bridge. Criminal Arrest Report.
11. The client explained that he and his passenger, S. H., were driving to Jacksonville, Florida. Criminal Arrest Report.
12. The vehicle the client was traveling in was not registered to him, but was registered to his wife.
13. Sgt. T. asked for consent to search the client’s vehicle, and informed him it was his right to refuse consent. The client refused consent to search his vehicle. Criminal Arrest Report.
14. Sgt. T. requested assistance from St. Martin Deputy J. L. At 7:02 a.m., Deputy L. and K-9 arrived on the scene. Criminal Arrest Report.
15. Deputy L. and the K-9 unit approached the client’s vehicle from the rear and moved counter clockwise around the van. They walked around the entire perimeter of the van almost three (3) times. They were near the rear of the van three times. Video Recording.
16. The K-9 eventually alerted on the front passenger side of the quarter panel of the vehicle. Narcotics Form.
17. No contraband was found in the area where the dog alerted.
18. The alert by the K-9 cannot be seen on the video recording. Video Recording.
19. The alleged controlled substances were found in the client’s luggage, which was in the rear of the client’s van. Report by R. G.

MEMORANDUM OF LAW

A. Illegal Stop

The Fourth Amendment to the United States Constitution, and Article I, § 5 of the Louisiana Constitution, prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. Warrantless searches and seizures are per se unreasonable, unless justified by one of the exceptions to the warrant requirement. State v. Wolff, 30 So. 3d 897, 901 (La. App. 5th Cir. 2009).
The stop by police of an occupied automobile for a traffic violation constitutes a “seizure” within the Fourth Amendment. Whren v. U.S., 517 U.S. 806, 809–10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Therefore, to justify a warrantless seizure, the government must “point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the intrusion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The evidence described herein should be suppressed on grounds that the police officers lacked the requisite reasonable suspicion or probable cause to stop the client. The evidence was obtained as a direct result of the illegal stop and detention, and as such, is fruit of the poisonous tree. Wong Sun v. U.S., 371 U.S. 471 (1963).
Sgt. T. reported he stopped the client’s vehicle for improper lane usage, in violation of

L.R.S. 32:79. However, the video recording provided by the officer which shows the client’s driving pattern before he was stopped, does not establish that the client’s vehicle veered to the right, or that his right tires crossed the fog line, as the officer reported. The video recording shows the client maintained his lane, and did not commit any traffic infractions. Thus, the officer did not have probable cause to stop the client for the traffic infraction, and the evidence described herein should be suppressed as fruit of the illegal stop.
Furthermore, even if the officer’s observations were verified, he did not have probable cause to stop the client. In State v. Vaughn, 448 So. 2d 915, 916 (La. App. 3 Cir. 1984), the officer testified that the driver crossed the center lane with his right tires by about six (6) inches for approximately ten (10) feet, and swayed within his own lane several times. The court found that the driver’s actions did not present sufficient facts to establish reasonable cause for a police officer to stop him, especially where the officer only followed the motorist for one and a half blocks, and the motorist did not present a danger to himself or others. Id. Here, as in Vaughn, the alleged observations of Sgt. T. (that the client’s vehicle veered to the right, and his tires crossed the right fog line), did not provide sufficient reasonable cause for the officer to stop him.

B. Illegal Detention

LSA – C.Cr.P. art. 215.1(D) states that, in conducting a traffic stop “an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity.” State v. Chinn, – So.3d – , 11-893 (La.App. 5 Cir. 2012).
Here, the client was detained for some 26 minutes prior to the arrival of the dog, and several minutes more during the dog search.
In the event there is an issue as to the length of the detention while waiting for the arrival of the canine unit, the following law applies:
In regard to the length of the detention, La. C. Cr. P. art. 215.1(D) specifically provides that, while the officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation, absent reasonable suspicion of additional criminal activity, the officer may also compel or instruct the motorist to comply with the administrative or other legal requirements of Title 32 or Title 47 of the Louisiana Revised Statutes of 1950. Therefore, an officer is allowed to conduct a routine driver’s license and vehicle registration check and may engage in conversation with the driver and any passenger while doing so. State v. Lawrence, 45,061 (La.App. 2 Cir. March 3, 2012), 32 So. 3d 329, writ denied, 10–0615 (La.10/8/10), 46 So. 3d 1265.

State v. Birgans, 45,982 La. App. 2 Cir. 1/26/11, 57 So. 3d 478, 484 writ denied sub nom. State ex rel. Birgans v. State, 2010-2561 La. 11/4/11, 75 So. 3d 917.
In Lawrence, supra, the court found it of no consequence to the legal validity of the stop that the officer decided to refrain from ticketing the defendant for a traffic violation. The defendant appeared nervous and exhibited suspicious behavior, and gave explanations of his travel plans that were inconsistent with those given to the officer by a passenger in the car. The court found the actions of the occupants provided ample reasonable suspicion that criminal activity was afoot. This reasonable suspicion justified extending the stop so the officers could continue to investigate the matter more thoroughly. The court stated that, in spite of defendant’s argument that the 30 minute stop was impermissibly long, there exists no bright-line rule for determining the appropriate length of traffic stops.

C. Illegal Search

Probable cause to search the client’s vehicle was allegedly based on the fact that the K-9 alerted on the exterior passenger side of the vehicle. A police officer has probable cause to conduct a search when “the facts available to [him] would ‘warrant a [person] of reasonable caution in the belief’” that contraband or evidence of a crime is present. Texas v. Brown, 460 U.S. 730, 742 (1983). In determining whether or not probable cause exists, courts must look to “the totality of the circumstances.” Illinois v. Gates, 462 U.S. 213 (1983).
In order to determine whether a dog’s alert provides probable cause to search, courts must consider “whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” Florida v. Harris, 568 U.S. ___ (2013). The Harris court stated that there are several factors that can be taken into account when considering the totality of the circumstances in a dog sniff case. Id. Those include the adequacy of the dog’s or handler’s certification or training program, how the dog or handler performed in the assessments made in those settings, evidence of the dog’s or the handler’s history in the field, and the circumstances surrounding a particular alert. Id. (emphasis added.)
In the particular circumstances of this case, as revealed by the video recording of the stop, Deputy L. and the K-9 approached the client’s vehicle from the rear (where the contraband was later located – and thus where any alert should have emanated), and began circling the vehicle in a counter-clockwise direction. The dog and handler walked around the vehicle almost three (3) times – with no alert. Approximately three-quarters of the way through his third trip around the van, the dog stopped at the front driver’s side of the vehicle, turned around, and proceeded to walk clockwise around the front of the vehicle. He then stopped at the front passenger side of the vehicle, where he reportedly alerted. As noted, the dog’s alert cannot be seen on the video recording.
According to the reports, cocaine was allegedly found in the rear of the van, behind all of the three rows of seats, a good distance from where the dog had alerted on the front passenger side of the vehicle. Furthermore, during his sniff of the vehicle, the dog passed by the rear of the vehicle, where the contraband was allegedly located, a total of three times – with no alert. The circumstances surrounding this alert, and the dog’s lack of ability to detect an odor in the location where the contraband was found, demonstrates the lack of reliability and qualifications of this dog for detecting controlled substances. His alert alone could not provide probable cause to search the vehicle.

Thus, based on the totality of the circumstances, the officers lacked probable cause to search the vehicle, and the evidence should be suppressed.
WHEREFORE, the Defendant respectfully requests the Court to grant this motion and suppress any and all evidence seized and/or obtained from the client, including all items found in his vehicle, any and all written and oral statements made by him, and the observations of the officers.