|Trafficking Prescription Drugs|
Prescription Drugs and Probable Cause to Search
Facts of the Case:
On Nov. 15, 2010, Darrian Washington, a detective with the Miami-Dade Police Department, was observing a small apartment complex on 80th Street west of 7th Avenue. (Darrian Washington’s Dep. 6.) Defendant Lopez drove up and parked his car approximately ten to 15 yards from where Det. Washington was standing. (Darrian Washington’s Dep. 6.) When Mr. Lopez got out of his car, he appeared to Det. Washington to be holding cash in one of his hands. (Darrian Washington’s Dep. 7, 8.) Another man — described only as “a black male,” (Darrian Washington’s Dep. 8) — spoke briefly with Mr. Lopez, after which Det. Washington saw Mr. Lopez hand the cash he had been holding to the other man. (Darrian Washington’s Dep. 8.)
The black male then walked out of Det. Washington’s line of sight, (Darrian Washington’s Dep. 9), but soon returned carrying what Det. Washington described as a “large prescription bottle” (Darrian Washington’s Dep. 9, 10), the label of which had been defaced. (Darrian Washington’s Dep. 11.) Mr. Lopez took the bottle, then got in his car and drove away. Det. Washington contacted two colleagues, Detectives Benitez and Kinney, (Darrian Washington’s Dep. 12), and instructed them to apprehend Mr. Lopez. (Darrian Washington’s Dep. 13.)
Det. Benitez recalls that, upon instructions from Det. Washington, he “activat[ed] the emergency equipment” of the “unmarked police vehicle” of which he was the driver and Det. Kinney the passenger, and pulled over Mr. Lopez. (Jason Benitez’s Dep. 6.) At that time, the two detectives “were wearing a modified please (sic; police) uniform TNT, which we had our body armor with POLICE and our badges on the outside, red and blue lights on the siren.” (Jason Benitez’s Dep. 7.) Although Det. Benitez did not see Mr. Lopez commit any crimes or traffic infractions, he did “see the defendant tugging at the headrest,” (Jason Benitez’s Dep. 7), which was a source of “concern” to the detective “for weapons.” (Jason Benitez’s Dep. 8.) Fortunately, this concern proved unfounded; the detective “didn’t see any weapons.” (Jason Benitez’s Dep. 8, 9.) Mr. Lopez was taken out of his car and placed in custody “on the ground on the sidewalk.” (Jason Benitez’s Dep. 9-10.) The detectives then radioed for the assistance of a canine officer, Detective Menoud. (Jason Benitez’s Dep. 11.) In due course — the time is not stated in the deposition transcripts — Det. Menoud arrived, accompanied by his dog Shasta. (Jason Benitez’s Dep. 12.) Shasta, with the assistance of his human colleagues, conducted the search of Mr. Lopez’s car that resulted in the seizure of the contraband at issue here. (Jason Benitez’s Dep. 12.)
Ruling of the Case:
Although the Hodari D. test is cast in the disjunctive, in the case at bar both prongs were met. Two officers, bearing all the accouterments of office and employing their car’s emergency equipment, pulled Mr. Lopez over. He was then removed from his own car and, according to the testimony of one of the detectives, placed on the ground on the sidewalk. He was obliged to remain there while his car was searched by hands and paws. Whether measured by the “submission to authority” component or the “actual physical force” component, the conduct visited upon Mr. Lopez satisfies the predicate for arrest. the contraband at issue here. (Jason Benitez’s Dep. 12.)
It is a principle too well-settled to require citation to authority that such an arrest — conducted, as this one was, in the absence of warrant — must be justified by nothing less than probable cause. The classic and oft-cited definition provides that “[p]robable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-6 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). In the taxonomy of standards of proof, probable cause is lower than proof beyond a reasonable doubt, see Locke v. United States, 11 U.S. 339 (1813) (Marshall, C. J.), but higher than mere articulable reasonable suspicion, see Terry v. Ohio, 392 U.S. 1 (1968). Only if Mr. Lopez’s arrest was justified by probable cause are its fruits admissible at trial.
Although the presence or absence of probable cause turns chiefly on the conduct of the person to be arrested, other factors may also be relevant. Typically — it is tempting to say invariably — police officers will testify that the conduct in which they saw the arrestee engage occurred in a “high crime area” or “known drug area.” That was the case here; Detective Washington was asked if he knew the contents of the bottle he saw come into Mr. Lopez’s hands. “No, sir,” he responded — and then hastened to volunteer, “Based on my training and experience I was in a known drug area.” (Det. Darrian Washington’s 10.)
The topos of the “high crime area” in present-day police testimony is, in at least one sense, perfectly understandable. No self-respecting policeman can be expected to begin his testimony by remarking that, “I was patrolling in a crime-free area” or “Our squad was detailed to set up surveillance in an area where no crimes had been reported.” Sending the greatest number of police officers to the areas with the greatest number of serious crimes is precisely what we want our police departments to be doing. But when every officer testifies in every case that his search or seizure was justified, at least in part, because it took place in a “high crime area,” then every search or seizure is justified, at least in part. In Orwell’s Animal Farm, all pigs were equal but some were more equal than others; so, too, if all areas in which policework is done are “high crime areas,” then some of those areas must be “higher crime” — and therefore some “lower crime” — than others. Comparatives and superlatives lose their force when applied to anything and everything. And the use of a particular locution in every, or nearly every, case in which policemen testify detracts from the force and probative value of that locution in any given case. See, e.g., United States v. Marshall, 488 F.2d 1169, 1171 n. 1 (9th Cir. 1973).
Det. Washington’s observations gave rise to that “articulable reasonable suspicion” that justify the police in conducting an investigatory stop. See § 901.151, Fla. Stat. (codifying and modifying the doctrine ofTerry v. Ohio, 392 U.S. 1 (1968)). This Terry doctrine is as fully applicable to the drivers of cars as it is to pedestrians. See Michigan v. Long, 463 U.S. 1032 (1981); State v. Dilyerd, 467 So.2d 301 (Fla. 1985). The officers in the case at bar were entitled to stop Mr. Lopez’s car and make further inquiries; indeed they would have been recreant in their duty had they failed to do so. Their authority was limited to “temporarily detain[ing] [Mr. Lopez] for the purpose of ascertaining [his] identity . . . and the circumstances surrounding [his] presence abroad which led the officer[s] to believe that [he] had committed, was committing, or was about to commit a criminal offense.” § 901.151(2), Fla. Stat. If, during the course of that investigatory stop, the officers had observed contraband in plain view, they would have been entitled to seize it. If, during the course of that investigatory stop, the officers had solicited and obtained Mr. Lopez’s consent to search his car, or his person, they would have been entitled to do so. If, during the course of that investigatory stop, the officers had developed probable cause, then — and only then — would they have been entitled to make an arrest. § 901.151(4), Fla. Stat. Where, as here, there was no contraband in plain view, there was no consent to search, and there was no probable cause, the seizure of Mr. Lopez’s person and the search of his car were unsupportable as a matter of law. The fruits of such a search must be suppressed.