Thursday, January 22, 2015

Is Expedited Screening Getting Too Much Attention from Bomb Dogs at Airports?

A cousin of mine went to the Phoenix Airport to fly to Newark.  Not a frequent flier, he was in one of the longer boarding lanes when a security officer pulled up a cloth strap between two poles and invited him and his wife to step into the fast lane for pre-screened passengers.  Delighted, they dragged their bags between the poles and were about 20 feet from the x-ray system when they passed a dog that they hardly noticed. My cousin was pulled aside and taken into a room.  He was told to empty his pockets and open up his carry-on bag.  After the initial search he was taken into another room where he had to remove most of his clothing.  He was told that a dog had alerted to the smell of explosives.  My cousin soon remembered that the pants he was wearing for the flight were the same ones he had worn to a firing range several days earlier.  Eventually he was allowed to board but the delay was considerable and they had no choice but to check their carry-ons because there was no space left in the overhead compartments.  Expedited screening had been anything but.
Increase in Expedited Screening from 2011 to 2014

What I did not realize until I read a recent Government Accountability Office Report was that had my cousin and his wife remained in the slow lane they would very likely not have been subjected to a bomb dog sniff.  It may have been because of their gray hair that they got the perk of expedited screening through a process called "managed inclusion," which adds ordinary passengers to the pre-screened system when those lanes have low traffic, and solely because they were moved into a fast lane that my cousin’s habit of frequenting Arizona gun ranges caused him to nearly miss a flight. 

GAO Report

In December, the Government Accountability Office released a public version of a sensitive report that was completed in September 2014.  The report, Aviation Security: Rapid Growth in Expedited Passenger Screening Highlights Need to Plan Effective Security Assessments.  GAO-15-150 (December 12, 2014) looks at how the Transportation Security Administration has implemented and expanded pre-screening to the point where, in April 2014, about 5.6 million individuals were eligible for expedited screening. Because many participating passengers are frequent fliers, the first graph shows that upwards of 15 million pre-screen passes have been issued in some months, amounting to over 40% of passengers nationwide.  The TSA has set a goal of making half of all passengers eligible for expedited screening. 

There are important advantages to being pre-screened:  

“[P]assengers eligible for expedited screening may no longer have to remove their shoes; may leave their permitted liquids, gels, and laptops in carry-on baggage; and are not required to divest light outerwear, jackets, or belts when passing through screening checkpoints unless the walk-through metal detector alarms, in which case these items must be removed.”

Just as there are passengers that qualify for expedited screening, there are passengers who are prohibited from boarding an aircraft because they are on the No Fly List, as well as passengers on a Selectee List who must undergo additional screening before being permitted to board an aircraft.  These individuals are on a Terrorist Screening Database, which is maintained by the FBI but available to multiple agencies. 

TSA PreTM Program

Paper and Electronic Pre-Screen Boarding Passes
In the summer of 2011, TSA began using expedited screening in standard lanes to passengers 12 and younger, 75 and older, and certain flight crew members.  In October 2011, TSA implemented the TSA PreTM program under which the agency began to evaluate passengers to determine if they presented a sufficiently low risk to be granted expedited screening. Initially, pre-screening for frequent fliers was implemented with two carriers at four airports, with accepted passengers going through expedited screening lanes known as PreTM lanes.  The two initial carriers were Delta Air Lines at Detroit Metropolitan Wayne County Airport and Hartsfield-Jackson Atlanta International Airport, and American Airlines at the Dallas-Fort Worth and Miami International Airports. As of April 2014, there were nine carriers participating in the PreTM program.

The initial pilot program also included certain members of the U.S. Customs and Border Protection’s (CBP) three trusted traveler programs, NEXUS, SENTRI, and Global Entry.  The pilot program transitioned into a formal program in February 2012, and more airlines began to participate. Initially eligible passengers could only use PreTM lanes for airlines on which they were frequent fliers. 

TSA soon expanded the PreTM program to include members of the U.S. armed forces, Congressional Medal of Honor Society Members, members of the Homeland Security Advisory Council, and Members of Congress.  In October 2013, TSA began a PreTM Risk Assessment Program to evaluate passenger risk data to determine the likelihood that passengers on which TSA had sufficient information would likely qualify for expedited screening.  In December 2013, TSA started taking applications for its own PreTM list.  As to how to get on this list, the GAO explains:

“To apply, individuals must visit an enrollment center where they provide biographic information (i.e., name, date of birth, and address), valid identity and citizenship documentation, and fingerprints to undergo a TSA Security Threat Assessment. TSA leveraged existing federal capabilities to both enroll and conduct threat assessments for program applicants using enrollment centers previously established for the Transportation Worker Identification Credential Program, and existing transportation vetting systems to conduct applicant threat assessments. Applicants must be U.S. citizens, U.S. nationals or lawful permanent residents, and cannot have been convicted of certain crimes.”

List Sources of Pre-Screened Passengers
The various PreTM lists, the numbers on each, and a description of eligible participants for each list is contained in a table provided by the GAO, included here.  It must be asked whether some of the categories are not sufficiently broad that someone with nefarious purposes could on occasion qualify, say by being in the military—a distinct possibility as demonstrated at Fort Hood in 2009—or by being a frequent flier. 

Secure Flight Program

Under the Secure Flight Program, TSA matches information on every passenger against watchlists, such as the No Fly and Selectee Lists, to check for matches.  TSA then directs the carrier to mark a passenger’s boarding pass for enhanced, expedited, or standard screening, or to prohibit the passenger from boarding.  Passengers designated as low risk are advised by TSA that they are eligible for expedited screening, which also directs the carrier to mark the boarding pass of such a passenger with the PreTM designation.  (The regulations that apply to the Secure Flight Program are contained 49 CFR Part 1560.  The GAO has reviewed the Secure Flight Program in several contexts, but see particularly its September 2014 report: Secure Flight: TSA Should Take Additional Steps to Determine Program Effectiveness, GAO-14-531.)

Passengers with the PreTM designation use expedited lanes at some airports and will not have to remove shoes and light outerwear or remove laptops, liquids, and gels from luggage.  If dedicated lanes are not available at an airport because of configuration or passenger levels, such passengers will have to remove liquids, gels, and laptops for the efficiency of screening operations in non-dedicated lanes. The 118 airports with dedicated pre-screening lanes are marked on the map below.  Although TSA operations cover about 450 airports, these 118 airports represent around 95% of enplanements.  

Airports with Pre-Screening Lanes
Managed Inclusion

In November 2012, TSA began a Managed Inclusion system designed to assess passengers who are not on participating or eligible for the PreTM program but who will nevertheless be moved to a pre-screened lane for expedited screening.  The assessment involves a layered approach including randomization procedures, behavior detection officers (BDOs), and either explosives detection canines or explosives trace detection (ETD) devices.  As to how the randomization procedure works, the GAO explains: 

“When passengers approach a security checkpoint that is operating Managed Inclusion, they approach a TSO [Transportation Security Officer] who is holding a randomizer device, typically an iPad that directs the passenger to the expedited or standard screening lane.” 

Behavior detection officers are to look for certain behaviors that indicate a passenger may be a higher risk and keep such a passenger in a standard screening lane.  The GAO reviewed the analytics used by TSA’s behavior detection officers in a report issued in May 2010: Aviation Security: Efforts to Validate TSA’s Passenger Screening Behavior Detection Underway, but Opportunities Exist to Strengthen Validation and Address Operational Challenges, GAO-10-763.  In the current report, the GAO summarizes its doubts about behavior detection procedures as follows:

“TSA has not demonstrated that BDOs can reliably and effectively identify high-risk passengers who may pose a threat to the U.S. aviation system. In our 2013 report, we recommended that the Secretary of Homeland Security direct the TSA Administrator to limit future funding support for the agency’s behavior detection activities until TSA can provide scientifically validated evidence that demonstrates that behavioral indicators can be used to identify passengers who may pose a threat to aviation security. The Department of Homeland Security did not concur with this recommendation; however, in August 2014, TSA noted that it is taking actions to optimize the effectiveness of its behavior detection program and plans to begin testing this effort in October 2014.”

It can be expected, therefore, that more GAO reports will concern TSA’s behavior detection efforts.  In addition to the behavioral assessment, a passenger in an expedited lane may pass a bomb dog team or an explosives trace detection device. As to when a passenger might encounter various components of the Managed Inclusion Program, the GAO provides a sort of generic floor plan distinguishing between the paths at a security gate of pre-screened passengers, passengers moved to expedited screening under the Managed Inclusion process, and all other passengers. 

Queues for Going Through Security


The GAO provides specific details about canine teams:

“TSA uses canine teams and ETD devices at airports as an additional layer of security when Managed Inclusion is operational to determine whether passengers may have interacted with explosives prior to arriving at the airport. In airports with canine teams, passengers must walk past a canine and its handler in an environment where the canine is trained to detect explosive odors and to alert the handler when a passenger has any trace of explosives on his or her person. For example, passengers in the Managed Inclusion lane may be directed to walk from the travel document checker through the passageway and past the canine teams to reach the X-ray belt and the walk-through metal detector. According to TSA documents, the canines, when combined with the other layers of security in the Managed Inclusion process provide effective security.”

As we discussed in a prior blog, it should not be assumed that anything missed in the security lanes will be caught by canine teams roaming around open areas either before or after the security gates. Two GAO reports (GAO-13-329 and GAO-14-695T) were skeptical about the effectiveness of passenger screening canine (PSC) teams and GAO posted the video below of a PSC team misidentifying the passenger with explosives odor in a test conducted at an airport.   



Nor should it be assumed that checked baggage is being looked at more carefully.  In a memo issued in September 2014 (OIG-14-142), the Inspector General of the Department of Homeland Security stated: 

"We [the Inspector General's staff] identified vulnerabilities ... caused by human and technology-based failures.  We also determined that TSA does not have a process in place to assess or identify the cause for equipment-based test failures or the capability to independently assess whether deployed explosive detection systems are operating at the correct detection standards.  The compilation of the number of tests conducted, the names of  airports tested, and test results are classified, or designated as Sensitive Security Information.  According to TSA, the component [presumably some subdivision of TSA] spent $540 million for checke baggage screening equipment and $11 million for training since 2009.  Despite that investment, TSA has not improved checked baggage screening since our last report in 2009."  

It has been over four years since we wrote a blog about explosives detection for checked baggage. The GAO should be looking into that issue as well.   

Conclusion

GAO notes that “Managed Inclusion passengers are more likely than other passengers to be screened for explosives.” My cousin's experience was apparently not unique. This is disturbing, given that a passenger going through ordinary screening is thus less likely to get near a dog or a device designed to detect explosives.  A terrorist carrying a new type of explosive might increase his chance of success by not being selected for an expedited screening, particularly if the components of an explosive can be made to look harmless enough for a physical inspection. GAO says that "TSA has conducted work to assess canine teams and to ensure that they meet the security effectiveness thresholds TSA established for working in the Managed Inclusion lane...."  GAO has not merely accepted TSA's word about the effectiveness of canine teams, as it did not regarding TSA's claims for the free-roaming PSC teams, and it must be hoped they will have some of their own investigators perform underground work here. 

An overall analysis of the effectiveness of screening should take the configuration of security lanes into account. It must also be hoped that GAO is continuing to test the effectiveness of other canine deployments at airports. The National Explosives Detection Canine Program is slated to get nearly $130 million under the 2015 Department of Homeland Security Appropriations Act. Canine teams must be effective to justify that kind of price tag. 

This blog was written by John Ensminger and L.E. Papet. 

Monday, January 12, 2015

Sniffing after a Traffic Stop is Over: Supreme Court to Consider K-9 Timing Issues

In order to understand what will happen with traffic stops involving narcotics sniffs across the country if the Supreme Court affirms the conviction of Dennys Rodriguez for possession of amphetamine with intent, let us begin with two hypotheticals.
  1. Alfred Smith is driving on an interstate highway late one night and is pulled over for crossing a solid line when moving towards an exit.  The officer making the stop obtains the license, registration, and insurance information from Alfred and calls the dispatcher to check the records.  The officer, Derek Jones, works with a canine that is in the back of his patrol car.  While the records check is proceeding, another officer in arrives in a second car.  After conferring with the second officer, Jones takes out the dog, which is trained in narcotics detection, and begins a sniff of Smith’s vehicle.  The dog alerts.  The records check is completed and nothing worth investigating further is revealed.  Jones writes up a warning and gives it to Smith, but tells him that he cannot drive away because the dog has alerted.  Jones asks Smith to exit the vehicle and wait with the second officer while Jones searches the car.  Narcotics are found.
  2. The facts are the same except that the records check is completed so quickly that Jones writes up the warning before he can begin conducting a sniff.  Something in Smith’s attitude bothered Jones while he was collecting the documents.  Jones later acknowledges that he did not think that his initial hunch about Smith amounted to reasonable suspicion.  As Jones gives the warning to Smith, he asks Smith to stand with the second officer while Jones gets out his dog and performs a sniff.  During the sniff the dog alerts.  Jones searches the car and finds narcotics less than ten minutes after the warning had been handled to Smith.
In 2005, in Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court held that a “dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”  In Rodriguez v. U.S., No. 12-1176, which will be argued before the Supreme Court this January, the issue is presented as to whether a sniff can still be legally conducted not during but after a traffic stop has been completed, despite the absence of reasonable suspicion or other lawful justification. 

Although some courts presently consider that a sniff that does not extend a stop by more than a few minutes, even one initiated after the stop was completed, would not be a violation of the Fourth Amendment, if the Supreme Court affirms Rodriguez, it would appear that the second scenario above would always be satisfactory.  That will mean that more traffic stops in the United States will involve dog sniffs and take longer, and the value of narcotics detection canines will increase for law enforcement agencies.  It also means that more minorities will be subjected to sniffs, that the number of unproductive sniffs and searches will continue to increase, and that the shakedown industry along some drug corridors, where the objective of a search is not drugs but cash that the driver can be pressured into forfeiting, will continue to grow. 

While the tenor of the 2013 decision of Florida v. Harris, 133 S.Ct. 1050 (2013), may mean that the Court will allow a loosening of the timing standard of Caballes, and while we accept that a sniff that has begun during a traffic stop may be appropriately concluded after the stop is completed, our opinion is that to hold that a sniff can be initiated or conducted in its entirety after the stop, or even after the stop reasonably could have been concluded, is a violation of the Fourth Amendment.  There should be a bright line after which a sniff cannot be initiated, though, as will be explained below, we are not in full agreement with the bright-line argument as presented by the attorneys for Rodriguez in their brief before the Supreme Court. 

A Traffic Stop in Nebraska

We believe that the best feel of what actually happened during the traffic stop of Dennys Rodriguez and the sniff of his vehicle is is to be found in the transcript of the federal magistrate’s hearing in the matter.  The transcript is included below as an appendix because it is not otherwise available than at significant cost from the federal Pacer system.

Just after midnight on March 27, 2012, Dennys Rodriguez and Scott Pollman were driving westbound on Highway 275 near Valley, Nebraska, west of Omaha, when their vehicle, a Mercury Mountaineer, was observed by a police officer with the Valley Police Department, Morgan Struble, who was sitting in the median.  After the Mountaineer passed him, Struble pulled onto the highway and proceeded at a high rate of speed to catch up with the vehicle even though officer Struble claims he had no suspicion of any wrongdoing.  According to Struble, the Mountaineer “wasn’t speeding.  I mean, I was doing the speed limit, and he wasn’t leaving me.” 

As Struble continued to shadow the Mountaineer, he witnessed the vehicle veering for “several seconds” onto the shoulder of the highway.  After the stop, Rodriguez, the driver, explained that he had swerved to avoid a pothole.  The possibility of a pothole causing the deviation was not investigated then or later, though Struble believed that the way the veering occurred was more consistent with the driver not paying attention to the road than swerving to avoid a pothole. 

Struble, a K9 officer, who had his dog with him, pulled over the Mountaineer at 12:06 a.m.  During a hearing on a motion to suppress evidence, the narcotics ultimately found in the Mountaineer, Martin Conboy, Assistant U.S. Attorney asked Struble if he had any observations regarding his initial contact with the occupants of the vehicle. 

A [Struble]. My first initial observation was the overwhelming odor of air freshener coming from the vehicle.

Q [Conboy]. And you call this an “overwhelming.” Do you have a basis for that?

A. Yes.

Q. And what is that basis?

A. I stop a lot of vehicles, different people, amounts of people, with different agendas, and typically, in my experience, the overwhelming air freshener odor is a common attempt to conceal an odor that they don’t want it to be smelled by the police.

Struble also observed that Pollman, the passenger, was nervous, “smoking a cigarette staring straight ahead,” and “had his hat pulled down real low over his eyes and would not make eye contact or look at me.” Struble saw this as suspicious because passengers typically “don’t have anything to worry about because they’re not driving.  They didn’t commit a violation.” 

Struble told Rodriguez to gather his documents and asked him why he had driven onto the shoulder, to which Rodriquez replied that there was “a large pothole back there on the roadway.” 

Q. And then what happened?

A. He provided the documents, and I asked him if he would step out of the vehicle and come sit in my cruiser with me while I conducted the records check.

Q. And then what happened?

A. He exited his vehicle.  He met me at the rear of his vehicle.  I asked him to just have a seat in the front passenger seat of my cruiser.  He then asked if he was obligated to, and I advised him that he was not obligated to. Then he stated he would rather sit in his vehicle.

Conboy asked if Struble found this refusal to be significant.

A.  Yes.

Q. And what do you base this on?

A. I’ve stopped a lot of cars, and I’ve gotten substantial amount of drugs out of vehicles, and I’ve never had anybody—I mean, in my law enforcement experience, I’ve never had anybody not want to sit in my vehicle with me.

Struble had been a police officer for two years at the time of the stop. On  cross-examination by Shannon O’Connor, an Assistant Federal Public Defender in Omaha, who represented Rodriguez, Struble elaborated that a driver wanting to stay in close proximity to a vehicle was “a subconscious behavior that people concealing contraband will exhibit” because they “don’t want to distance themselves too much from their contraband.” 

He conducted the records check on the documents provided by Rodriguez, but there were “no warrants or violations or anything that caused any concern,” then returned to the Mountaineer and asked for the license of Pollman, the passenger, “and then I began asking him questions with regards to where he was coming from and where they were going.”  Pollman said they had come to Omaha to look at purchasing a vehicle and were driving back to Norfolk, Nebraska.  Struble asked if they had looked at any pictures of the vehicle before making such a long trip. 

Q. And was there any significance to any of this conversation that caught your attention?

A. Yes.

Q. And what was that significance?

A. It’s just after midnight on a Tuesday.  It just seemed suspicious to me to drive, you know, approximately two hours that late at night to see a vehicle sight unseen to possibly buy it.  It just seemed abnormal to me.  It’s not something I would do.... And then Pollman stated that the seller didn’t have the title to the vehicle.  It seems like something that would be confirmed before."

Struble took Pollman’s driver’s license and returned to his police cruiser to conduct a records check on Pollman, again finding nothing worth pursuing.  At this point he requested backup. (It must be wondered if performing a separate records check on Pollman, a passenger who could not be blamed for the traffic violation, and who seemed to have no more than an attitude problem, may have been a way to extend the stop. Separately investigating a passenger is a common ploy used by officers to buy time for a backup or safety officer to arrive.)  Struble wrote a warning for Rodriguez and went back to the Mountaineer for a third time.  He returned the documents and gave Rodriguez the warning. The stop had lasted about 21 or 22 minutes. Yet the stop continued:

Q. And after the ticket was given to him and explained, what did you do next?

A. I asked Rodriguez if he had an issue with me walking my police service dog around the outside of his vehicle.

Q. And what did Mr. Rodriguez state to you?

A. He stated that he did have an issue with it.

Q. What happened next?

A. I instructed him to turn off his vehicle and step out of his vehicle.

Rodriguez rolled up the windows of the Mountaineer and got out of it.  Struble told him to stand in front of the police cruiser until the second officer, Deputy Duchelus of the Douglas County Sheriff’s Office, arrived, which happened at 12:33.  Struble retrieved his dog, named Floyd, who had been recertified only a week before the traffic stop. Floyd, according to Struble’s testimony, gives “a passive indication, which means he sits whenever he gets as close to the source of the odor that he feels he can possibly get.” Struble began to run the dog around the Mountaineer.

Q. How long after the drug sniff commenced did your K-9 indicate and alert to the vehicle?

A. It was halfway through my second pass. When I do a K-9 sniff of the vehicle, I start at the front, do a clockwise motion around.  Once I make one pass around the vehicle, I turn counterclockwise.  He began alerting at the rear of the vehicle on the second pass, and then finally indicated at the front passenger door.

The defense should have inquired as to why an alert did not occur during the first pass.  Continued attention on the part of the handler to an area may operate as a cue to the dog to provide an alert.   Struble asked Rodriguez to sit in the back of the deputy sheriff’s cruiser and asked Pollman to sit in his own cruiser and conducted a hand search of the Mountaineer. He found a “large bag of crystal methamphetamine,” which he field-tested.

Because the prosecution was for a federal drug crime, violation of 21 U.S.C. 841(a)(1) and (b)(1) (unlawful acts involving controlled substances), Rodriguez was prosecuted by the office of the U.S. Attorney in Omaha and represented by a federal public defender.  The federal magistrate judge, F.A. Gossett, concluded that the sniff was not a Fourth Amendment search and said he disagreed with the Government “as to probable cause.  I do not think Officer Struble had anything other than a rather large hunch. There’s no probable cause here, in my opinion, to search this vehicle, absent information given by the dog.”  Gossett calculated the length of the deployment of the dog “to be under ten minutes, which he considered, under U.S. v. $404,905 in U.S. Currency, 182 F.3d 643 (8th Cir. 1999) and U.S. v. Morgan, 270 F.3d 625 (8th Cir. 2001) to be de minimis. Gossett expressed his own personal opinion that a sniff should be considered a search, but noted that he was bound by case law.  He also said that 15 minutes would not be de minimis under Eighth Circuit cases.

The magistrate recommended that the motion to suppress be denied.

Federal District Court and Eighth Circuit

Federal District Court Judge Joseph F. Bataillon agreed that the sniff was constitutional and that “the total elapsed time is similar to times found constitutional by the Eighth Circuit,” and adopted the findings and recommendations of the magistrate.

A three-judge panel of the Eighth Circuit affirmed in an opinion by Judge Roger Leland Wollman, who stated:

“Although the dog was located in the patrol car, Struble waited to employ it until a second officer arrived, explaining that he did so for his safety because there were two persons in Rodriguez’s vehicle. The resulting seven- or eight-minute delay is similar to the delay that we have found to be reasonable in other circumstances…. We thus conclude that it constituted a de minimis intrusion on Rodriguez’s personal liberty.” 

Having concluded that “the traffic stop was not unreasonably prolonged, we need not decide whether Struble had reasonable suspicion to continue Rodriguez’s detention.” 

What is the Question Presented to the U.S. Supreme Court?

In granting certiorari, the Supreme Court docket stated the question presented as follows:

“This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are ‘de minimis’ intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.”

One generally expects that the briefs of the parties and the amici in any appellate matter will agree on the question presented, as is the case with the brief on behalf of Rodriguez, but the brief for the U.S. submitted by the Solicitor General frames the issue somewhat differently:

“Whether, in the context of a traffic stop, a police officer may conduct a dog sniff of a vehicle after issuing a written traffic warning, where the traffic stop was not unreasonably prolonged.” 

There is no paraphrasing of the docket statement’s wording as to whether “an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.”  Indeed, the U.S. does not concede that reasonable suspicion was lacking and the second major heading of the Solicitor General’s brief states that the “dog sniff of petitioner’s car was independently justified by the officer’s reasonable suspicion of criminal activity.” 

Thus, it appears that the U.S. is providing a way for the Court to avoid answering its own question.  Instead of deciding whether an already-completed stop can be extended without reasonable suspicion in order to conduct a sniff, the Court could choose to regard this question as only hypothetical because there was reasonable suspicion at the end of the stop. The Solicitor General argues the following as to reasonable suspicion:

“Numerous factors, taken together, established reasonable suspicion: the overwhelming odor of air freshener emanating from petitioner’s car, petitioner’s evident agitation, petitioner’s implausible explanation for his traffic violation; Pollman’s nervous behavior and attempts to avoid being looked at closely, and Officer Struble’s belief that Pollman’s story about the reason for making the long trip to Omaha in the middle of the night was not credible. Moreover, immediately after petitioner declined to consent to a dog sniff of his car and Officer Struble asked him to step out of his vehicle to await the arrival of the backup officer, petitioner rolled up the windows of his car, further contributing to Struble’s reasonable suspicion that the air fresheners were being used to mask the odors detect-able to a drug dog. Together, these circumstances are more than sufficient to create reasonable suspicion.”

Should the Supreme Court want to affirm but not feel that the case was appropriate for making new law, this approach is not inconceivable.  In our opinion, however, it is unlikely.  

Should the End of a Traffic Stop Be a Bright Line? 

Before the Supreme Court, Rodriguez was represented by attorneys in the office of the Federal Public Defender, as well as by appellate specialists at Sidley Austin LLP and a Northwestern University law professor.  Their brief summarized the argument as follows:

“Fourth Amendment seizures must be justified at their inception and limited in scope to the circumstances that warranted the intrusion in the first place. But the decision below proposes an exception to these principles for routine traffic stops. Under this exception, an officer who has stopped a driver for a minor traffic infraction may, without additional justification, continue to hold the driver for a ‘de minimis’ amount of time after the stop is over based solely on the generalized possibility that the detention may lead to the discovery of contraband.”

The brief argues that the Supreme Court “should recognize a bright-line rule that a traffic stop concludes when the tasks relate to the reason for the stop are complete,” and that “[a]ny further detention, however brief, is unconstitutional in the absence of individualized suspicion.” 

The Solicitor General’s brief correctly observes that such a bright-line approach would, at least on occasion, mean that substantially similar scenarios could lead to different results.  The brief uses two hypotheticals to make the point: 
  • In the first [sniff], beginning at 12:00, the dispatcher takes seven minutes to check the driver’s license and registration. At 12:07, the dispatcher reports to the officer that the driver’s license and registration are valid. The officer begins to write up a ticket but does not give it to the driver. At 12:09, the officer begins to perform the dog sniff. The dog alerts at 12:10.
  • In the second, also beginning at 12:00, the dispatcher again takes seven minutes, reporting back at 12:07. The officer writes up the ticket and decides to give it to the driver before get-ting his dog out of the patrol car. The officer begins the dog sniff at 12:09, and the dog alerts at 12:10.
There is no doubt that officers have to be given some latitude, but a decision to delay the procedures of a traffic stop in order to fit a sniff inside it should be precluded.  On the other hand, if a sniff has begun and the officer hears the dispatcher calling in with the results, he should not be required to discontinue the sniff and let the driver go.  Some practicality is appropriate. 

The Solicitor General argues that “a bright-line prohibition on an officer’s performing a dog sniff after issuing a ticket would arbitrarily distinguish between functionally identical traffic stops that have the same impact on individual interests.”  This presupposes that time alone is determinative of what violates a driver’s Fourth Amendment rights.  It effectively argues that a sniff should become one of a stop’s standard adjunct procedures, such as investigating the driver’s insurance coverage to see if state insurance laws are being complied with, or investigating the documents of a passenger who has no responsibility for the actions of the driver that led to the stop.  We believe that only if the sniff has been initiated during the stop should it be possible, absent reasonable suspicion, to complete it after the stop. 

Walking Search Warrants and a Shakedown Industry

The Supreme Court has recently limited from the defense arsenal an important tool that should be available to a defendant.  The problem began when a dog sniff was held, in U.S. v. Place, 462 U.S. 696 (1983), as suggested by the magistrate in this case, not to be a search.  Place found a dog sniff “much less intrusive than a typical search,” though it could provide probable cause for greater intrusion into the luggage of an airline passenger. Caballes carried this logic to the period during which a legitimate traffic stop was being conducted. Still, a dog had to be reliable, and defense counsel might look for evidence that the dog was alerting any time that an officer wanted probable cause to conduct search.  Florida v. Harris said, however, that a dog would generally be considered reliable if it had been certified, and the bar to admitting field records, which might indicate that the officer regarded his dog as nothing more than a walking search warrant, became high indeed. 

Justice Souter, dissenting in Caballes, appropriately warned that the “infallible dog … is a creature of legal fiction.” Yet the Supreme Court has created an imaginary world for its reasoning in which dogs are trained for precision, pass tests administered by neutral observers with no camaraderie among the police handlers and their evaluators, where officers form no biases by receiving information prior to running a dog, where dogs sniff cars without being cued, on purpose or inadvertently, to alert by handlers with hunches, and in sum where narcotics detection dogs are neutral forensic tools.  The Supreme Court probably also assumes that prosecutors allow full transparency to the training and field records or dogs, and would never consider advising handlers to destroy field records as soon as possible (something we found happening in Walking Search Warrants).

The petitioner’s brief cites a number of studies indicating that dog sniffs are often unproductive, and with regard to minority drivers can be particularly unproductive. The most cited study of this sort, by Hinkel & Mahr (2011), was previously discussed by us. 

An Arizona study cited in the petitioner’s brief found that canine alerts resulted in contraband being discovered only 49% of the time.  That study, Traffic Stop Data Analysis Study: Year 3 Final Report (2009), determined that for all canine units in the state, only 9.7% of white drivers stopped by canine units were searched, while 25.2% of Hispanic drivers, 12.3% of Native American Drivers, and 19.1% of Black drivers were searched.  Not surprisingly, since searches were more conservatively instituted against white drivers, they were more successful than when instituted against Hispanic and black drivers. 

The study also suggests that variability of statistics across the state may mean that certain departments may have adopted practices to assure that dogs produce alerts:

“Of particular importance were the differences in the rates of contraband seizures between canine handlers assigned to the North squad versus those assigned to the Central and South squads. Across all types of searches, canine handlers assigned to the North squad were significantly more likely to report contraband seizures compared to handlers assigned to Central/South squads.”

The Illinois Traffic Stop Study 2013 Annual Report, also cited by the petitioner, found that while dogs alerted in 67% of sniffs of minority drivers but only 61% of white drivers, contraband was found in 64% of searches of vehicles driven by white drivers but only 55% of vehicles driven by minority drivers.  Although less dramatic than some other studies, this also suggests that there is more cueing involved in stops of minority drivers.   

The Solicitor General argues, unfortunately correctly, that in Harris, the Supreme Court “rejected the argument that canine alerts that do not result in discovery of narcotics indicated unreliability” because “dogs often alert to residual odors.” Justice Kagan’s opinion stated that “a well-trained dog’s alert establishes a fair probability—all that is required for probable cause—that either drugs or evidence of a drug crime … will be found.”  Statistical studies suggest that almost any probability of drugs being found can lead to sniffs in some departments, but this will not be stopped if the Court continues to rely on mantras about minimal intrusiveness, certification as sufficient for reliability, fair probability from any alert, and residue as presumably responsible for unproductive alerts. 

As Professor Leslie Shoebotham has demonstrated, there are now incentives in law enforcement to use unreliable drug-detection dogs.   There has arisen, as we and others have argued, a law enforcement shakedown industry, particularly along certain drug corridors, where local coffers are being supplemented by forfeitures, sometimes with no effort to initiate a criminal prosecution if the suspects will walk away from the cash.  This industry will continue to grow if Rodriguez is affirmed. (Cash was not mentioned in the transcript of Rodriguez, other than in a hypothetical question, even though the occupants of the car were supposedly going to Omaha to look at a Ford Mustang for sale for $6,500.)   

Conclusion

The Solicitor General is correct that the Court should not involve itself in police practices to such an extent as to require that the sequence of police activities during a stop be rigidly ordered so as to prevent the possibility of conducting a hand search merely because backup is not immediately available. Yet if the sniff cannot be begun during an appropriately conducted traffic stop, the stop should not be extended without reasonable suspicion. Unless the Court finds that what the magistrate called the officer’s “rather large hunch” amounted to reasonable suspicion, the decision of the Eighth Circuit should be reversed.  To hold otherwise would be to elevate the sniff to the same level as the stop itself, seemingly indistinguishable in legal justification from such approved procedures as checking the driver’s insurance to verify that state laws requiring liability coverage are being followed or investigating the documents of passengers in the vehicle. 

Stops are already being made almost entirely to conduct sniffs.  Although Indianapolis v. Edmond, 532 U.S. 32 (2000), presumably still has enough teeth to mean that there has to be some justification for the stop other than a desire to see if a particular law-abiding vehicle might contain drugs, there is precious little justification in many instances.  This is true of the stop of Dennys Rodriguez, who may have done no more than cross a shoulder line to avoid a pothole.  It is not hard to find some justification for stopping a vehicle—being followed closely by a policeman is likely to make many of us nervous—and one has to wonder if a couple of men driving late at night on a quiet stretch of highway may have been all that was initially of interest here.

Of course any limit that the Supreme Court might impose could result in adjustments to police practices to assure that a sniff is conducted in a necessary time frame. Dispatchers could—and we believe sometimes already do—make records checking a low priority when they know that a canine unit is on the way to a stop (or backup is on the way so that the canine unit that has made the stop can feel safe in performing a sniff).  Dispatchers can certainly send out the backup before devoting time to a records check, and may be required under department policy to do so.  Some parts of the records check may take longer than others and dispatchers can adjust their own sequencing to provide time for the sniff to occur. 

Although this case presents what can perhaps be categorized as a timing issue, it shows that the good intentions of U.S. v. Place have led the Supreme Court, along with the judicial and criminal justice systems of the United States, down a slippery slope. Rather than opening the door to a minimally intrusive investigation as a preferred alternative to a full-blown search, the subsequent law has allowed canine sniffs to become a minor inconvenience police must go through in order to conduct searches.  What was initially allowed as a way to limit the intrusiveness of an investigation has become a very great intrusion indeed.   

Oral arguments in Rodriguez v. U.S. will be heard by the Supreme Court on January 21. 

This blog was written by John Ensminger and L.E. Papet. 

APPENDIX: Transcript of hearing before Magistrate F.A. Gossett, including bench ruling.  (No effort has been made to correct spelling or grammar, or to preserve page breaks; line numbers have been eliminated for flow.)  

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEBRASKA

Omaha, Nebraska
July 10, 2012, 9:45 a.m.

TRANSCRIPT OF MOTION TO SUPPRESS EVIDENCE HEARING
BEFORE THE HONORABLE F.A. GOSSETT
UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

For the Plaintiff: Martin Conboy
Assistant United States Attorney
1620 Dodge Street
Suite 1400
Omaha, NE 68102

For the Defendant: Shannon O’Connor
Assistant Federal Public Defender
222 South 15th Street
Suite 300N
Omaha, NE 68102

Proceedings recorded by electronic sound recording, transcript
produced by transcriptionist.

July 10, 2012
(Whereupon the following proceedings 3 took place in open court at 9:45 a.m.:)

(Call to Order of the Court.)
THE COURT: 8:12CR170, United States of America versus Dennys Rodriguez.

Counsel for the Government, please identify.

MR. CONBOY: Thank you, Your Honor. Martin Conboy on behalf of the United States. With me at counsel table is Morgan Struble. He’s the initiating officer in this matter.

THE COURT: For the Defendant, who’s present?

MR. O’CONNOR: Shannon O’Connor.

THE COURT: The matter is before the Court on a motion to suppress. It’s document number 23. I’ve read the motion and accompanying briefs. Does the Government have any opening motions or statements?

MR. CONBOY: No, Your Honor.

THE COURT: Defendant?
MR. O’CONNOR: No, sir.

THE COURT: Government may call their first witness.

MR. CONBOY: Thank you. At this time I would call Officer Morgan Struble.

MORGAN STRUBLE, PLAINTIFF’S WITNESS, SWORN

THE COURT: Government’s witness.

MORGAN STRUBLE - Direct (Mr. Conboy)

MR. CONBOY: Thank you, Your Honor.

DIRECT EXAMINATION BY MR. CONBOY:
Q. Sir, can you please repeat your name.

A. Morgan Struble.

Q. And how are you employed?

A. I’m a police officer with the Valley Police Department.

Q. And how long have you been an officer with the Valley Police Department?

A. End of February, beginning of March.

Q. And how long have you been a law enforcement officer?

A. Since April 2010.

Q. And do you have any duties being a police officer?

A. Yes, I do.

Q. And what are those duties?

A. Traffic enforcement, criminal investigations, I’m a K-9 handler, narcotics investigations.

Q. Is that it?

A. Do you want me to keep going?

Q. No.

A. Okay.

Q. Does that summarize it?

A. That -- for the most part, yes.

Q. And were you working as a Valley Police Department officer on March 27, 2012?

A. Yes.

Q. And if I can direct your attention to approximately 12:06 p.m. -- excuse me, it would 12:06 a.m. on March 27, 2012, do you recall approximately where you were located?

A. Yes.

Q. And where was that?

A. I was traveling westbound on Highway 275.

Q. Where at on Highway 275?

A. Start near the Meigs Street exit --

MR. O’CONNOR: Which street exit?

THE WITNESS: Meigs, M—e-i-g-s.

MR. O’CONNOR: Thank you.

BY MR. CONBOY:
Q. Is that by any major thoroughfares?

A. Dairy Queen.

Q. Is that by any busy streets, main streets?

A. Meigs? No. I mean it’s just an intersection with Highway 275. It’s just outside of Waterloo.

Q. Okay. And approximately that location, did you happen to be involved with the traffic stop?

A. Yes.

Q. And where was the traffic stop initiated?

A. Highway 275 and 276th Street intersection.

Q. And what kind of vehicle was it that you stopped?

A. It was a Mercury Mountaineer.
Q. And what was the -- Did you make any observations that caused you to stop the vehicle?

A. The vehicle drove onto the shoulder and then jerked back onto the roadway near 276th Street.

Q. Okay. And where did you -- If I could have you break that down a little bit. What direction were you traveling?

A. Westbound.

Q. And was the -- Where was the Mountaineer in relation to you?

A. It was on the what you would call outside lane, and I was inside lane a couple car lengths back from it.

Q. So the vehicle was also traveling westbound?

A. Yes, same direction as me.

Q. And you indicated that it jerked in some fashion. Can you describe that in more detail?

A. It began veering off to the outside lane and to the shoulder. Then at some point as the passenger side tires went over the line, it jerked back over into the lane of traffic.

Q. Was the action, going onto the shoulder, was that sudden or did it happen over a period of time?

A. It was not as sudden as the correction to get back into the lane of traffic. It was more of a veer and then – it appeared to me like the driver wasn’t paying attention, watching his mirrors or something to that effect, and then looked back at the road. It appeared that he realized he was veering off of the road and then corrected quickly.

Q. And how far over the line onto the shoulder did the Mountaineer pass?

A. I know the driver side tires at least crossed the line. As far as feet and inches, I’m not sure.

Q. And do you recall approximately how long the vehicle traveled on the shoulder?

A. No. No, I mean, several seconds.

Q. And after conducting a traffic stop, did you have contact with the occupants?

A. I did.

Q. And were you able to identify the occupants?

A. I was.

Q. And who were the occupants?

A. The driver was Dennys Rodriguez, and the front passenger and only other passenger was Scott Pollman.

Q. And during this initial contact, did you make any observations?

A. I did.

Q. What observations did you make?

A. My first initial observation was the overwhelming odor of air freshener coming from the vehicle.

Q. And you call this an “overwhelming.” Do you have a basis for that?

A. Yes.

Q. And what is that basis?

A. I stop a lot of vehicles, different people, amounts of people, with different agendas, and typically, in my experience, the overwhelming air freshener odor is a common attempt to conceal an odor that they don’t want it to be smelled by the police.

Q. And during this contact did you observe both Rodriguez and the passenger Mr. Pollman?

A. Yes.

Q. Did you make any observations?

A. Yes.

Q. And what did you observe?

A. I observed that Pollman was nervous. I made a passenger side approach on the vehicle, so I approached the passenger side as opposed to the driver side. I observed Scott Pollman smoking a cigarette staring straight ahead. He had his hat pulled down real low over his eyes and would not make eye contact or look at me.

Q. And would it be safe to say that during most contactspeople appear to be nervous?

MR. O’CONNOR: I object to foundation.

THE COURT: Sustained.

BY MR. CONBOY:
Q. How would you characterize his nervousness? Was it normal or was it different than what you normally see?

MR. O’CONNOR: I again object as to foundation. The question as to whether “normal,” I think that needs to be explained.

THE COURT: Sustained.

BY MR. CONBOY:
Q. What did you do during this normal -- Excuse me. What did you do during this initial contact?

A. I spoke with the driver, Dennys Rodriguez. I advised him for the reason of the stop, asked him if there was a reason for the violation. Then I asked him to gather his documents.

Q. Did you talk to Mr. Rodriguez about the purpose of the traffic stop?

A. Yes, I did.

Q. What did you talk to him about?

A. I asked him if there was a reason that he drove onto the shoulder.

Q. What did he say?

A. He stated that there was a large pothole back there on the roadway.

Q. And after you talked to Mr. Rodriguez, what happened next?

A. I asked him for his driver’s license, registration and insurance for the vehicle.

Q. And then what happened?

A. He provided the documents, and I asked him if he would step out of the vehicle and come sit in my cruiser with me while I conducted the records check.

Q. And then what happened?

A. He exited his vehicle. He met me at the rear of his vehicle. I asked him to just have a seat in the front passenger seat of my cruiser. He then asked if he was obligated to, and I advised him that he was not obligated to. Then he stated he would rather sit in his vehicle.

Q. And then what happened?

A. I returned to my cruiser, and I conducted a records check.

Q. Let me back up really quick. When he asked to sit in his vehicle while you did the checks, did you find this to be significant?

A. Yes.

Q. And what do you base this on?

A. I’ve stopped a lot of cars, and I’ve gotten substantial amount of drugs out of vehicles, and I’ve never had anybody -- I mean, in my law enforcement experience, I’ve never had anybody not want to sit in my vehicle with me.

Q. And then, I think, following that you indicated you went to the patrol vehicle and you ran their information?

A. Just Rodriguez’s, yes.

Q. And did you make a second contact with the Mountaineer at some point?

A. Yes.

Q. And who did you talk to upon returning to the Mountaineer?

A. Scott Pollman.

Q. And what did you talk to Mr. Pollman about?

A. I initially asked him for his driver’s license or identification, and then I began asking him questions with regards to where he was coming from and where they were going.

THE COURT: I’m sorry, I lost who you were talking about with these questions, the passenger or the Defendant?

THE WITNESS: Scott Pollman, the passenger.

THE COURT: Okay. Go ahead, Mr. Conboy.

BY MR. CONBOY:
Q. And during this contact what did Mr. Pollman say to you?

A. Pollman stated that they were coming from Omaha, Nebraska, going back to Norfolk, Nebraska, and that they came to Omaha to look at purchasing a vehicle.

Q. And did you ask -- Did you determine whether or not they had gone to Omaha and actually looked at the vehicle?

A. Did I determine that?

Q. Yes.

A. No.

Q. Did you ask Mr. Pollman if they did?

A. Yes.

Q. And did you ask him whether or not -- Let me rephrase that.  Did you discuss with Mr. Pollman whether or not he had any information on the vehicle that he went to Omaha to look at during this time?

A. Yes.

Q. And what did he say?

A. I asked him if he at least observed any pictures or if the seller had sent him any pictures prior to him driving all the way from Norfolk to see the vehicle, and he stated that he had not seen pictures of the vehicle.

Q. And was there any significance to any of this conversation that caught your attention?

A. Yes.

Q. And what was that significance?

A. It’s just after midnight on a Tuesday. It just seemed suspicious to me to drive, you know, approximately two hours that late at night to see a vehicle sight unseen to possibly buy it. It just seemed abnormal to me. It’s not something I would do.

Q. And how about the -- Well, when you say sight unseen, does that mean drive -- making the trip without having seen any pictures of the vehicle beforehand?

A. Pictures, yes. And then Pollman stated that the seller didn’t have the title to the vehicle. It seems like something that would be confirmed before.

Q. And what did you do after speaking with Mr. Pollman?

A. I gathered his driver’s license, and then I returned to my cruiser.

Q. And during this period did you do anything else?

A. I requested a second officer, and I conducted a records check on Scott Pollman.

Q. And to be clear, do you recall approximately what time the traffic stop occurred?

A. Six after midnight.

Q. And do you recall approximately when you contacted a second officer?

A. I believe I called for a second officer, I believe, after midnight, 19 minutes after midnight. And I believe the second officer was in route at 21 after midnight.

Q. And in your patrol vehicle what did you do?

A. I conducted a records check on Pollman, and I began to write a written warning for Rodriguez.

Q. And at some point did you have a third contact with the Mountaineer?

A. Yes.

Q. And what did you do?

A. I completed my written warning. I reapproached the vehicle for a third time. I issued a -- I advised that it was just a written warning. I returned all the documents to both Rodriguez and Pollman. And I had Rodriguez sign the written arning, and then I handed him his copy of the written warning.

Q. Do you recall approximately what time you gave him the warning?

A. I cannot. It would be a minute, two minutes after the written time on my written warning, whatever time that is.

MR. CONBOY: May I have a moment, Your Honor?

THE COURT: You may.

MR. CONBOY: May I approach, Your Honor?

THE COURT: You may.

BY MR. CONBOY:
Q. Officer Struble, you’ve just been handed a document. Can you tell the Court what that document is.

A. It’s a copy of my warning citation that I issued Mr. Rodriguez.

Q. And if you review that document, would it help you recall approximately what time you issued the written warning?

A. Yes.

Q. And looking at that document can you tell the Court what time the written warning was issued?

A. 0025, 25 after midnight.

Q. And during the issuance of this ticket, and when you signed it with him, did you continue to talk to him about events pertinent to the purpose of the traffic stop?

A. In regards to?

Q. Explained the ticket to him, et cetera?

A. Yes. I advised him it’s just a warning citation, that he didn’t have to pay any fines or mail anything in. I, again, approached the vehicle on the passenger side, so I had to hand my citation book via Pollman to Rodriguez. He signed it. He then returned it. I ripped out his copy, handed him his copy, and went from there.

Q. What -- How much time did it take you to explain the ticket to him and finish the purpose of the traffic stop?

A. Well, the time here on the warning citation is 25 after. That was the time as I was writing the citation, and that’s about halfway down the citation. The time to explain it, hand it to him, I would probably -- I’d say approximately 27 to 28 after, two to three minutes.

Q. And after the ticket was given to him and explained, what did you do next?

A. I asked Rodriguez if he had an issue with me walking my police service dog around the outside of his vehicle.

Q. And what did Mr. Rodriguez state to you?

A. He stated that he did have an issue with it.

Q. What happened next?

A. I instructed him to turn off his vehicle and step out of his vehicle.

Q. And what happened?

A. He stated that he was going to roll his windows up first.

Q. And did he?

A. Yes. I advised him he could do that.

Q. And then what happened?

A. He rolled his windows up, and he exited the vehicle. And I instructed him to stand in front of my cruiser until a second officer arrived.

Q. And you indicated earlier that you are a K-9 officer. Did you have your K-9 with you that day?

A. I did.

Q. And what is your K-9’s name?

A. Floyd.

Q. And is he a certified K-9 dog?

A. Yes.

Q. Do you consider him to be reliable?

A. Yes.

Q. And when was the last time he was certified?

A. The last time he was certified was March 2012, before -- the first week of March.

MR. CONBOY: Your Honor, may I approach, please?

THE COURT: You may.

MR. O’CONNOR: I have no problems with stipulating that the dog is an expert and well-trained, and I’m not going to challenge -- I’m not going to challenge here the dog’s finding of the drugs.

THE COURT: All right. Mr. Conboy, you can react to that any way you wish with a question.

MR. CONBOY: Sure.

BY MR. CONBOY:
Q. Mr. -- or Officer Struble, the certification for your dog was given on March 21, 2012?

A. Yes, March 21st.

Q. And what is the difference between an indication and an alert?

A. An alert or alert behavior is the behavior that my dog shows when he detects the odor or odors he’s trained to detect. An indication is the final response, which my dog is a passive indication, which means he sits whenever he gets as close to the source of the odor that he feels he can possibly get.

Q. And, you know, I apologize, but I -- you said you were waiting for a second officer, correct?

A. Yes.

Q. And did one arrive?

A. Yes.

Q. And do you recall approximately what time that occurred?

A. Thirty-three after, I believe.

Q. And your K-9, is he present in your vehicle?

A. Yes.

Q. And he was there throughout the entire traffic stop?

A. Yes.

Q. And after the second officer arrived -- who was that, do you recall?

A. It was Deputy Duchelus with the Douglas County Sheriff’s Office.

Q. And after he arrived, how long did it take you to remove your K-9 from the vehicle?

A. After Duchelus arrived, I spoke with Rodriguez, advised him what I was going to do, that I was going to walk my dog around the outside of his car. I approached the vehicle, advised Pollman, who was still in the Mountaineer, that I was going to walk the dog around the outside of the car. And then I retrieved my dog.

Q. How much time?

A. A minute, 45 seconds.

Q. And did you walk your K-9 around the vehicle?

A. Yes.

Q. And did he alert and indicate to the vehicle?

A. Yes, he did.

Q. And what happened next?

A. He alerted and indicated to the front passenger side door. I placed my K-9 in the back of my vehicle. I had Rodriguez sit in the back of Deputy Duchelus’s cruiser. Then I had Pollman step out, and I had Pollman sit in the front seat of my cruiser while I conducted a hand search of the vehicle.

Q. How long after the drug sniff commenced did your K-9 indicate and alert to the vehicle?

A. It was halfway through my second pass. When I do a K-9 sniff of the vehicle, I start at the front, do a clockwise motion around. Once I make one pass around the vehicle, I turn counterclockwise. He began alerting at the rear of the vehicle on the second pass, and then finally indicated at the front passenger door.

Q. So how much time?

A. Twenty seconds, 30 seconds.

Q. And approximately how long after the traffic stop ended do you think it took for your K-9 to indicate to Mr. Rodriguez’s vehicle?

A. I would say seven, eight minutes tops. From the time I issued the written warning and returned their documents, to the time my dog was actually indicating on the vehicle, I’d say seven to eight minutes.

Q. And after your K-9 indicated to the vehicle, what happened next?

A. I returned him to my cruiser. Like I say, I had Rodriguez sit in the back of Duchelus’s cruiser. I had Pollman sit in the front seat of my cruiser, and I conducted a hand search of the vehicle.

Q. And what was found?

A. A large bag of crystal methamphetamine.

Q. And it was field tested, correct?

A. Yes.

Q. Going back to Mr. Pollman during the initial contact, did you have an opinion whether or not Mr. Pollman was nervous or overly nervous?

A. Yes.

Q. And what do you base that opinion on?

A. My contact with numerous, numerous other people on traffic stops. He was more nervous than your typical passenger in the vehicle. Typically passengers don’t have anything to worry about because they’re not driving. They didn’t commit a violation.

MR. CONBOY: I have no further questions.

THE COURT: Mr. O’Connor.

CROSS-EXAMINATION BY MR. O’CONNOR:
Q. You started to list all of the things that you were responsible for. How many other officers are there in the Valley Police Department?

A. There’s four full-time officers and approximately five part-time officers.

Q. So you do just about everything?

A. Yes.

Q. Okay. Now, where were you at when you first saw Mr. Rodriguez’s vehicle on 275 on March 27th?

A. I believe I was just east of the Meigs Street intersection with 275, and I was in a turnaround median. That’s when I first observed the vehicle drive by. I didn’t notice any details about the vehicle until I was traveling the same direction. I believe I was sitting in the center median somewhere near -- just east of Meigs Street on 275.

Q. How long had you been sitting there?

A. Seconds in that median.

Q. From the median, were you on -- were you traveling east on 275 and then go in the median?

A. And then went to -- yes.

Q. Okay. And that was a matter of seconds?

A. No, it was, maybe, a minute. I mean, it wasn’t a matter of seconds, but I was probably there for a minute. I hadn’t been there very long.

Q. And what were you doing there? Watching traffic?

A. Yes and no. What I do is I’ll go to the east and west side of the city limits there and sit in the different medians and turnarounds and speeders and intoxicated drivers and so on.

Q. Can you give me a street number, if it works, the -- we’ll start with the eastern boundary of the city of Valley?

A. A street number?

Q. Uh-huh.

A. I don’t know a street number for the eastern boundary of  the --

Q. Describe to me what road or landmark or line or whatever is the eastern boundary of the city of Valley.

A. It’s not a perfect square. It’s kind of choppy. They’ve done some annexing. I mean, I guess are you asking where the city limit is on the highway?

Q. Sure.

A. Okay. The city limits sign is just east -- you know, saying entering Valley city limits is just east of Meigs, if you’re traveling westbound on Highway 275.

Q. Just east --

A. Of Meigs. About the area I was sitting.

Q. A mile? Quarter of a mile? Half a mile?

A. Oh, I don’t know. Quarter mile. That’s a guess.

Q. And why did you turn and follow Mr. Rodriguez?

A. Why did I turn and follow Mr. Rodriguez?

Q. Yeah. You were sitting in the median, you turned to go west with the direction Mr. Rodriguez’s car was traveling?

A. Yes.

Q. And you -- Were you following him? Was that the intent when you pulled out of the little U-turn thing to go west on 275?

MR. CONBOY: Objection, relevance.

THE COURT: Overruled. You may answer the question.

THE WITNESS: No, I was not following him.

BY MR. O’CONNOR:
Q. So -- All right. Was he speeding or driving the speed limit to your knowledge, guesstimate?

A. Yes. He wasn’t speeding. I mean, I was doing the speed limit, and he wasn’t leaving me.

Q. Okay. On Highway 275, what is the approximate distance from the eastern to western boundary of Valley?

A. Oh, a couple miles.

Q. How much?

A. A mile, maybe two miles, three miles. I’m not sure. I’ve never measured it.

Q. How many times have you been on that highway doing what you were doing now looking for speeders and people that violated the law, how many times had you done that over your --

A. Do you want like a number?

Q. Sure. Five, 10, 15, 100, 200, 500.

A. Oh, I’d say -- Like I said, I’m fairly new to Valley Police Department, so not a whole lot of times. I would say, roughly, 10, 15, 20 times on the highway.

Q. In approximately a two-year period?

A. No. I’ve only been with Valley Police Department since the beginning of March.

Q. So you’d give an estimate of -- tell me again, of what, how far do you think it was?

A. Anywhere from a mile to four miles. I’m not sure.

Q. Okay. Where --

A. It’s a stretch. I mean, it’s not a whole lot, but it’s --

Q. Well, I’m just curious, because we’re guessing time here down to six to eight minutes and sometimes seconds, and as close as you can come to a travel on the road is one to four miles?

A. Yeah. Are you wanting the western Valley city limits, is that --

Q. Boundary to boundary.

A. Maybe we could get a map and measure it.

Q. Boundary to boundary.

A. Okay. The western Valley city limits, I believe, is just on the west side of 276th Street, but the highway kind of curves, so it’s -- like I said, you’d have to look at a map to really understand the city limits. It’s kind of choppy, and it’s not clean or pretty by all means.

MR. O’CONNOR: Can I have just a second, Judge?

May I approach the witness?

THE COURT: You may.

BY MR. O’CONNOR:
Q. Officer, I do have some maps here --

A. Okay.

Q. -- and I’m not sure whether it shows the city limits, so let me try something. Let’s start with Defendant’s Exhibit Number 102. It’s basically a Google Earth map, and is there anything on there that you can show and mark where the city limits are?

A. Yes, on the east side. The images is not large enough to show the western city limits. It’s a little further west.

Q. Let me show you Defendant’s Exhibit 103. Do you see whether that --

THE WITNESS: That would about do it.

MR. CONBOY: Your Honor, can I ask that the witness to pull his mic down. I can’t hear him.
3 THE WITNESS: That will do it.

BY MR. O’CONNOR:
Q. Officer, on that exhibit can you put an X as to the eastern and western boundaries, and then drawing that on --

A. 103.

Q. -- Exhibit 103.

A. This is just my guesstimate. I’m not approximate here.  This is just from what I observe.

Q. Okay.

A. Would you like your exhibits?

Q. How long have you lived in Valley?

A. I don’t live in Valley.

Q. Where do you live?

A. I live in Omaha.

Q. And you come in from Omaha to -- on 275?

A. Yes.

Q. While we have it here, can you look at Defendant’s Exhibit 103, and can you see on there where Meigs is at, where you were at when you turned around?

A. The turnaround is not on the picture here. It’s just off the picture here, off the screen. It’s just a gravel turnaround.

Q. May I look at that?

A. Yeah.

Q. So it’s further -- assuming this is north on the --

THE COURT: Mr. O’Connor, what are we doing?

MR. O’CONNOR: Judge, I want to establish where he was at and how long he followed the --

THE COURT: Why don’t you ask him that then?

MR. O’CONNOR: -- the Defendant, what distance. Well, but he’s saying that we’re one to four miles, so I’m going to narrow it down --

THE COURT: No, you’ve never asked him how long he followed the Defendant. You’ve asked him where the city limits were, and you’ve asked him -- You’ve never asked him how long he followed the Defendant and where he stopped him.

MR. O’CONNOR: Not yet.

THE COURT: Well, I guess, I’m having a problem with what the point of it all is.

MR. O’CONNOR: I’ll finish that up here real quick. Judge, here’s the point. The point is I want to -- I have the city limits. Now I want to know where he turned around, and then I can see distance, how far he followed him.

THE COURT: Okay. That’s fine.

BY MR. O’CONNOR:
Q. When you say it’s not on this map then, is it further to the --

A. It’s further to the -- where are we at here -- This would be north, further south and east. It’s just off the screen here. It curves to the left, and there’s a turnaround.

Q. Inside the city limits?

A. Actually, no, the turnaround is outside the city limits. It’s the only -- It’s the next place -- the turnaround before you hit Omaha.

Q. So it’s just south of the X on the bottom right-hand corner --

A. Correct.

Q. -- that’s marked on Defendant’s Exhibit 103?

A. Correct.

MR. O’CONNOR: I’d offer Defendant’s Exhibit 103 into evidence.

THE COURT: Mr. O’Connor -- or excuse me, Mr. Conboy.

MR. CONBOY: Can I have one second, Your Honor?

THE COURT: Sure.

MR. CONBOY: I don’t have an objection to it.

THE COURT: One oh three will be received for purposes of the motion, which is number 23, only.

BY MR. O’CONNOR:
Q. So when he passed you he was going the speed limit, approximately, which is how much?

A. The speed limit is 65. I believe he was doing a few miles under the speed limit.

Q. Okay. And you were at a dead stop when he went past you. How long did you follow him from that dead stop until you saw him off the road with his car?

A. How --

Q. How long?

A. I’m sorry, I’m confused. A matter of -- Are you asking me time or distance?

Q. How long in time?

A. I don’t -- I don’t know. I don’t know. I observed the violation just east of 276th Street in the city limits and conducted the traffic stop just as soon as I could pull in behind him and activate my lights after that.

Q. How far behind were you when you saw the violation?

A. Approximately three car lengths, four car lengths. I was in the opposite lane, so I wasn’t in his lane of traffic. I was in the inside lane.

Q. So when you -- we look at the map, however long we can determine what the distance is, you caught up with him and were behind three or four car lengths?

A. Yes.

Q. So, obviously, you were going faster than he was?

A. Yes.

Q. If he’s going 65 miles an hour and you’re a dead stop and get three or four car lengths behind him before you see him go off the road, you did -- how fast were you going to catch up to him?

MR. CONBOY: Objection, relevance.

THE COURT: What’s the relevance, Mr. O’Connor?

MR. O’CONNOR: Well, I think it’s important to know how far he followed him from the time that he saw him until he went off the road, and he said that he was just going in the direction, and I guess my point is that he was more than going in the direction. He had to catch up with the Defendant’s vehicle. So he was following him for a reason. And the testimony was that he was just driving down the road when he went past. So he caught up with him for a reason.

THE COURT: I’ll overrule the objection.

THE WITNESS: Now, what was your question?

THE COURT: I think you answered it.

THE WITNESS: Did I answer it? Okay.

BY MR. O’CONNOR:
Q. Now, you indicated on direct examination, and maybe I misheard it the first time. Did you say that the passenger -- or that the driver wheel went over the line, and then you said the passenger wheels went over the line? I’m confused. We’ll  start with which wheels went over the shoulder line?

A. The passenger wheels. The passenger side tires.

Q. And he’s driving in the right lane?

A. Yes, outside lane.

Q. And your description in the police report, it was “veered onto the shoulder and then jerked back quick”?

A. Yes.

Q. When you talked to him, he told you that he had swerved for a pothole?

A. Yes.

Q. Would that be consistent with your definition of veering and then quickly jerking back onto the road?

A. No, not in the manner he did. No.

Q. What’s different from him swerving as to miss a pothole and veering and then jerking quickly back onto the road?

A. Like I explained earlier, the veering was slow and steady. It appeared to me like he wasn’t paying attention where he was driving. And then the correction, where he jerked back to the roadway, was quick. If he was going veer a pothole, the veer  or the swerve would be quick and the correction would be quick, in my opinion.

Q. And your conclusion was that he was not paying attention?

A. Yes.

Q. And what do you base that on?

A. Based on the fact that he wasn’t intoxicated and that, you know, like I said, it was a slow swerve with a quick correction, as opposed to a quick swerve and a quick correction, which I think would be consistent with trying to avoid an object or a hole.

Q. Okay. So we’re not talking about intoxication at this point, because you had no idea when you were following him, correct?

A. No.

Q. That’s correct?

A. That’s correct, yes.

Q. And so you catch up to him and you say “veer” and “jerk” back quickly?

A. Yes.

Q. And your report doesn’t say anything as to the distance that he went, from the time that he crossed the line?

A. No.

Q. And your estimate now is how long?

A. I’m not -- A few seconds, maybe one, two seconds. I’m not sure. I didn’t count. I didn’t measure.

Q. Okay. All right. So for whatever reason, the passenger wheels went over the white line for a period of two seconds, approximately?

A. Yes.

Q. So he veered onto the road and then jerked back quickly in approximately two seconds, fair?

A. What’s that? Did you ask if that’s what he did?

Q. I said -- Yeah, if that was fair.

A. Like I said, the veer was slow -- from the center lane -- center of his lane, he began slowly veering towards the outside shoulder. From the time the actual tires went over the line to the time where he, I believe, realized it and corrected was approximately two seconds, yes.

Q. So you made contact with the driver and passenger after the stop by going up to the passenger window?

A. Yes.

Q. And you said you asked him why he was driving on the road? That was the term that you used?

A. Why he was driving on the road?

Q. Driving on the shoulder.

A. Yeah, I don’t remember exactly what terms or words I used, but I asked him for his reason for the violation.

Q. Your report says reason for driving on the shoulder.

A. Okay.

Q. I want to know whether that’s the word that you used?

A. I don’t recall if that’s the exact word I used or not.

Q. Do you recall any response from him as “I wasn’t driving on the shoulder”?

A. I believe he did. I believe he initially said he didn’t believe he did. Then I pointed out that it was, you know, just back there just east of the intersection. Then he stated something to the effect of where that large pothole was. And I said I’m not sure, or something to that effect, and something about a pothole. And I believe later on in the traffic stop he again stated he didn’t. I’m not sure. I don’t recall.

Q. The question was whether he questioned the fact that he was driving on the shoulder? That word.

A. Yes. I don’t specifically it was driving on the shoulder, but yes, he did question the reason for the stop.

Q. But you’re not sure whether the word “driving” was used, correct?

A. I’m pretty sure the word “driving” was used.

Q. So you go up to the car and get the license, registration and insurance card, correct?

A. Yes.

Q. Did you notice anything about Mr. Rodriguez?

A. He was agitated.

Q. Okay. And at that point in time you said the passenger was quiet, kind of pulled the cap down over his head, and looked straight ahead?

A. Correct.

Q. Would it be fair his actions would be consistent with I don’t want you to see who I am?

A. You could say that.

Q. And at that time you also smelled the -- oh, I’m sorry, what’s it called? Perfume, that’s not the right word. What’s --

A. Air fresheners?

Q. Yes.

A. I actually smelled the air fresheners before I even approached the window, but, yes, I smelled air fresheners, overwhelmingly.

Q. What type of air fresheners were they?

A. Oh, I don’t know.

Q. Can you give me an idea. Describe them.

A. It was a pleasant smell. I don’t -- Are you’re asking for like a brand name? I don’t know.

Q. I mean the source, was it a Christmas tree? Was it a --

A. Oh, I don’t recall. I wasn’t looking for air fresheners when I was searching, sir.

Q. So you don’t know whether there were air fresheners in there or not?

A. I don’t know if it was spray or -- you’re right, I don’t know if there were trees or the little Glade vent. I’m not sure. I didn’t -- That’s not -- Like I said, it’s not what I was looking for.

Q. After the arrest, the car was taken where? Back to the police station?

A. Yes, to the police garage and then to impoundment.

Q. Was it searched when you were at the police garage?

A. No.

Q. You asked Mr. Rodriguez to get out of the car and come to the -- your police car, correct?

A. Yes.

Q. And you had said that you had never seen anyone turn down that request before?

A. Correct.

Q. Have you ever had anyone ask whether they had to or not?

A. Yes, I have.

Q. And what did they ask?

A. Are you asking me for a specific incident or --

Q. No. No.

A. I’ve had people ask if they were in trouble, if they were getting a ticket, is there a reason I’m asking them to come sit in my car. And I explain to them that they’re not obligated to, it’s just easier for me. I don’t have to stand on the side of the road, particularly during inclement weather, and there’s no bugs, and I can roll the windows up and turn the air conditioning off -- or on and talk to them in a controlled, quiet environment, as opposed to semis blowing past.

Q. What was -- Did you find -- or you said you found this suspicious. Why?

A. What, that he wouldn’t come back to my vehicle?

Q. Yes.

A. Because I had never had anybody encounter -- I’ve never encountered anybody that was so adamant against not sitting in my cruiser with me.

Q. And what did that mean to you?

A. It just appeared suspicious to me.

Q. How so?

MR. CONBOY: Objection, asked and answered.

THE COURT: Overruled.

THE WITNESS: How so? It appeared to me, after he asked if I could -- if he could sit in his vehicle, it appeared to me that he did not want to leave his vehicle. He wanted to stay in close proximity to his vehicle. And in my experience on other traffic stops and incidents, that’s a subconscious behavior that people concealing contraband will exhibit. They don’t want to distance themselves too much from their contraband.

Q. Well, with your experiences, the first guy that ever said no, I’m not getting in your car --

A. Yeah.

Q. So how can you say your experiences if a person does that then it’s consistent with hiding contraband? It’s happened one time.

A. It’s happened -- I’ve had one person refuse to sit in my car, yes, but I’ve had numerous incidents where people subconsciously move closer to their contraband or their substances without even knowing they’re doing it, just because that’s what they’re thinking about.

Q. When you smelled the air freshener stuff, did you find that suspicious?

A. As strong as it was, yes.

Q. And what did that mean to you?

A. Again, based on my experience, it’s a common tactic for people to use overwhelming scents to attempt to cover up other scents that they don’t want the police to smell.

Q. What other scents were you suspicious of? Drugs?

A. Yes. On this particular incident are you asking, or --

Q. Yeah.

A. -- other times?

Q. No, on this incident.

A. This incident, I mean, drugs, alcohol. Considering the violation, you know, it’s --

Q. Okay. So drugs and alcohol. Had you smelled alcohol --

A. No, I did not.

Q. -- in the car? Okay. So it was suspicious to you that he was covering something up, maybe covering something up with the smell of the air freshener?

A. Yes.

Q. And the common reason for doing that would be to hide the scent of controlled substances?

A. Yes.

Q. And from this man, the only person that said I don’t want to get in the car, you thought that that was suspicious because people that do that want to stay close to their contraband?

A. In my experience, yes.

Q. Okay. Were you suspicious at this point in time of what was going on? What was your suspicion at this point in time after you saw the passenger huddle down, smelled the air freshener, and had Mr. Rodriguez stay close to his car, what were you thinking at that time?

A. My sense is definitely heightened. My awareness level went up, and, yes, at that time I believed there may be, you know, criminal activity.

Q. Okay. What type of criminal activity was your suspicion at the time?

A. At the time? You know, I really hadn’t made a decision at that point in time. Are we talking first contact, or are we talking -- I mean, what point of the traffic stop are we talking about here?

Q. We’re talking about when Mr. Rodriguez said he doesn’t want to sit in the car, and that was the first person that ever did that that you had contact with. At that point in time, what was your suspicion?

A. At that point in time? Drugs or guns.

Q. Okay. And, of course, you would need the air freshener smell to mask drugs or guns, correct?

A. More so drugs, but, yes.

Q. More so drugs. Guns didn’t have any -- don’t have any smell at all?

A. Well, not to us, but, you know, they have a slight -- everything has a slight odor, but nothing that would jump out when you walk up to a window.

Q. Nothing that you would need to mask --

A. No.

Q. Nothing you would need to mask the smell of, I would assume?

A. Unless you had an arsenal.

Q. And what you did when you went back was to run Mr. Rodriguez’s name on the -- help me out, what’s it called?

A. MDC?

Q. Yeah. And what does that do?

A. That’s just a criminal history check. It’s -- You know, make sure he didn’t have any valid warrants or, you know, his license wasn’t suspended or revoked.

Q. And if he has a -- if he had a warrant, what would be your next action?

A. If he had a warrant?

Q. Yeah.

A. Ultimately --

MR. CONBOY: Objection, I’m sorry, relevance.

THE COURT: Sustained.

BY MR. O’CONNOR:
Q. He apparently had no warrants or violations or anything that caused you any concern, would that be accurate?

A. Not that I remember, no.

Q. So you made the traffic stop for driving on the road. You got the license and registration and insurance card. You then go back and run his name through the history to get somebody’s background. And you tell him before you get out of – before he gets out of the car the first time that you’re going to write him a warning. Now, at that point in time, what prevented you from writing and issuing the warrant?

A. I didn’t write a warrant.

Q. Not the warrant, the ticket. I’m sorry.

A. Oh, what time are you talking about?

Q. After you run Mr. Rodriguez’s name through the identification -- criminal identification. Why was a ticket not issued at that time?

A. Because I wanted to check the passenger to make sure he didn’t have any warrants. I wanted to make sure I had everybody cleared before I did any paper writing.

Q. You were suspicious of the man and his actions when you first went to the car, correct?

A. Yes.

Q. You got the identification of Mr. Rodriguez at that time, correct?

A. Yes.

Q. When you go back the second time, you get the identification from the passenger, correct?

A. Correct.

Q. Because you wanted to run his record as well?

A. Correct.

Q. Why did you not take this person who you were suspicious  of, who ultimately you would run the record anyway, why did you not take that at the same time you took Mr. Rodriguez’s identification?

A. I don’t know. There was no particular reason.

Q. Part of the reason that you went back to talk to him is because of his suspicious behavior, correct?

A. No, I went back to talk to him for his identification and license. And then I began speaking with him while he was retrieving it, and I became more suspicious.

Q. But there’s no reason at all that you can recall that you didn’t take both licenses at the same time?

A. No.

Q. Okay. So you started talking to him -- to, I’m sorry, the passenger?

A. Yes.

Q. And you asked him where he was coming from?

A. I asked him where they are coming from, yes.

Q. And he told you we went from Norfolk to Omaha to look at a car, and they were on their way back, correct?

A. Correct.

Q. Were you suspicious at that time?

A. Yes.

Q. Why?

A. Because it’s after midnight on a Tuesday.

Q. Okay. What, based upon your training, caused you to be suspicious?

A. The fact that it was midnight -- after midnight on a Tuesday, and they drove over two hours to look at a vehicle inthe dark.

Q. So your training says if someone is driving a car from along distance to look at a vehicle and coming back at midnight, that, your training shows you, is suspicious?

A. No, common knowledge.

Q. Your common knowledge, right?

A. I believe so.

Q. You said that it seemed suspicious to you, correct?

A. Yes.

Q. So it’s not your training and experience. You’re putting your conclusion that it was suspicious, correct?

A. Well, and experience, yes.

Q. And after he told you he was going back from Omaha after looking at the car, and you were concerned about the time and looking at the car in the dark, what did he tell you about the trip when he was in Omaha? Anything?

A. What do you mean, details as far as the vehicle or where they were?

Q. Any details at all.

A. I think he advised that he looked at an older Ford Mustang, and the guy wanted $6,500 for it, but he hadn’t seen any -- I asked him if he had seen any pictures of it, he stated no, and he stated that the seller didn’t have title for it, and that’s why he didn’t buy it.

Q. Did you ask him how long he had been in Omaha?

A. I don’t recall if I did or not.

Q. Your report doesn’t indicate that you asked him how long he had been in Omaha, correct?

A. Correct.

Q. Your understanding is that he was buying it from an individual and not a dealer, correct?

A. Yes.

Q. Based upon the timing at 12:00 in the morning, that would make a difference to you, common sense, that he was not getting it from a dealer?

A. Yes.

Q. And that if he’s getting it from an individual, it’s more likely that you would look at it at later hours, correct?

A. (No audible response.)

Q. A dealer isn’t open at 12:00 in the morning? Correct?

A. Yeah, correct. So what are you asking? I guess I’m confused on the --

Q. The question is whether, in fact, you think that a dealer is open at that late in the day? Are they out selling cars at 12:00 in the morning?

MR. CONBOY: Objection, relevance.

THE COURT: Sustained.

BY MR. O’CONNOR:
Q. But your understanding is that he was buying it from an individual?

A. Yes.

Q. And your understanding was -- or I guess you concluded that it was dark, it was 12:00 in the morning, and you thought it was strange looking at a car at that point in time, correct?

A. Yes.

Q. Do you know how long he had been in Omaha?

A. No, I do not.

Q. Do you know how long -- or when he actually looked at the car that day?

A. No, I do not.

Q. Do you know whether in fact what he did after he look at the car?

A. I’m assuming they got Taco Bell, because there were wrappers in the back seat.

Q. Okay. Do you know when they got Taco Bell from your assumption?

A. No.

Q. Do you know whether they stopped and talked to anybody before they left the person selling the vehicle? Well, I guess here’s the bottom line. You say you’re concerned that it’s at 12:00 in the morning, you think that’s strange, but you don’t find out as to when he looked at the car, right?

A. When he actually looked at the vehicle, no, I didn’t ask him what time he looked at the vehicle.

Q. So it would be less suspicious if he told you he looked at it at 4:00 in the afternoon?

A. I would probably then ask him what were you doing for the rest of the time.

Q. It would be less suspicious if he bought it at 4:00 in the afternoon?

A. A little.

Q. What do you mean “a little”?

A. It would be a little less suspicious.

Q. It would be a lot less suspicious at 4:00 in the afternoon as opposed to looking at a car at midnight, correct?

A. Are you asking me if it would be a lot less -- I said a little less suspicious. I don’t believe a lot less suspicious, but I believe a little less.

Q. What do you find suspicious about buying a car or looking at a car at 4:00 in the afternoon?

MR. CONBOY: Objection, relevance.
THE COURT: Sustained.

BY MR. O’CONNOR:
Q. What did you find suspicious about driving from Norfolk to Omaha to look at a car?

A. Well, one, the taxes are higher. Usually people leave Omaha to go get vehicles, not the other way around.

Q. And based upon your training you are taught that it is significant the fact that somebody drives from one city a fair distance to another city to look at a car?

A. No, we didn’t have a class covering long distance automotive purchasing.

Q. So again, that’s based upon your personal experience, correct?

A. And professional experience, correct.

Q. You said -- Were you suspicious that they went to Omaha to ook at a Ford Mustang that the guy wanted $6,500 for and did not come back with the car?

A. Yes, or at least documentation or paperwork of purchase.

Q. Well, you said he didn’t purchase the car, correct?

A. Correct.

Q. Why was that suspicious?

A. He stated that the owner did not have a title for the vehicle and that he had not seen any pictures of the vehicle prior to driving down there. It just seems like a long distance to drive without confirming that the owner had the title or at least seeing pictures via e-mail. I mean, technology these days, it’s pretty easy. It just seemed suspicious to me.

Q. Suspicious to you.

A. Yes. I was the one conducting the traffic stop.

Q. But I mean, it’s not suspicious because of your training, it’s suspicious because of what you concluded?

A. Based on my training and experience, people hauling drugs n their vehicles often don’t think of a good story when they get stopped.

Q. So one of the reasons you were asking these questions of the passenger was to follow up on your suspicions that these folks may be involved in dealing drugs?

A. Yes.

Q. Started with smelling the strong odor of the air freshener?

A. Yes.

Q. And that was before you even get to the people in the car?

A. Yes.

Q. Did you ask them whether they had any money or not to buy the car?

A. I don’t believe I did.

Q. Did you ask Mr. Rodriguez what he was doing in Omaha, the purpose of his trip?

A. Yes. I asked them both when I approached the vehicle, and that’s when they -- Pollman stated that they were going to look at a vehicle -- or coming back from looking at a vehicle.

Q. I thought you said that’s when -- that conversation was when you went back and talked to Mr. Pollman after you ran Mr.Rodriguez’s name in the computer?

A. Yes, that is when the conversation occurred, when I was retrieving Pollman’s identification to conduct a records check on him.

Q. Your report says you had the conversation with Pollman.

A. I was speaking to both of them, but Pollman answered allthe questions, yes.

Q. So based upon that conversation that you found suspicious of guys going to look at a car in Omaha and then driving back to Norfolk when you stopped them at midnight, you found that suspicious that these people may be carrying drugs?

MR. CONBOY: Objection, asked and answered.

THE COURT: Overruled. You may answer the question.

THE WITNESS: After speaking with the occupants of the vehicle and --

THE COURT: Step up to the microphone, please.

THE WITNESS: After speaking with the occupants in the vehicle and corroborating everything that I have observed, yes, I was suspicious of criminal activity.

BY MR. O’CONNOR:
Q. So you go back after talking with Mr. Pollman and -- go back to your car and run his name through the same system to see if he had any warrants, correct?

A. Correct.

Q. And at that point in time you called for a backup at 12:19 in the morning?

A. Correct.

Q. And this was while you were back running Pollman’s name through the system?

A. Correct.

Q. And what time did the backup arrive?

A. On location? I believe it was 33 after.

Q. Okay. And, I’m sorry I don’t remember, about what time did you take the dog around?

A. Approximately one minute after backup arrived.

Q. Okay. I want to go back real quick. If you made the same stop at the same time of day and the passengers were on their way to Omaha, as opposed to coming back, and they had $6,000 cash on them, would you have found that suspicious?

MR. CONBOY: Objection, relevance, calls for speculation.

THE COURT: Sustained.

BY MR. O’CONNOR:
Q. So after you made the decision that you were going to search the car, you told both passengers to exit the vehicle?

A. No. Rodriguez was already out of the vehicle.

Q. You told him to stay back by your car while the dog was doing his search?

A. Yes. I told him to stand back with the deputy at the front of my cruiser.

Q. So he was -- I’m sorry?

A. At the front of my cruiser is where he stood with the deputy.

Q. And I’m going to assume that you told him to stand in front of the cruiser and he was standing by the deputy, that it certainly appeared that he was not free to leave at that point in time?

A. No, he was not free to leave.

Q. And he did say to you that he did not agree with you walking the dog around the car, correct?

A. Correct.

Q. I’m going to go back just a second and real quick, before you even asked him about whether he had any problem with you running the dog around the car, you had returned his dentification and all of the other papers that you took?

A. And his copy of the written warning.

Q. As well as the identification to Mr. Pollman?

A. Correct. All the documents were returned.

Q. And then you asked about the dog?

A. Yes.

Q. Why did you do it in that sequence, based upon your training and experience?

A. Why did I do -- Why did I ask about the dog after I returned all the documents?

Q. Yes.

A. So they had all their documents back and a copy of the written warning. I got all the reason for the stop out of the way and returned all the documents, made sure they had everything, verified they had everything, got him his copy,advised him it was just a written warning, took care of all the business.

Q. Based on your training --

A. Okay.

Q. -- why do you wait to ask for the dog after you return all the documents to the individuals?

MR. CONBOY: Objection, form of the question and relevance.

THE COURT: Overruled. You may answer the question.

THE WITNESS: I’m kind of confused on what you’re asking. Why do I wait until I return all the documents?

BY MR. O’CONNOR:
Q. Well, let’s do it this way. Are you trained to ask for a search or ask for your dog to go around after all of the documents have been returned and it appears that the individuals are free to go?

A. If you’re asking for consent to search, then, yes, the subject would have to be free to go. But I was going to walk my dog around the vehicle regardless whether he gave me permission or not.

Q. And you decided that at 19 minutes after midnight when you called for backup?

A. Well, that’s when I called for backup, yes.

Q. And the reason you called for backup is you needed help when you conducted the walkaround by the dog?

A. Yes. There were two people involved, and I wanted a second officer there for officer safety.

Q. Did you have the keys at that point in time -- at any point in time? The keys to Rodriguez’s car?

A. After the K-9 indication I had the keys.

Q. It would be fair -- Would it be fair to assume that you were still conducting the traffic stop at 19 minutes after midnight when you called for help?

A. Yes. I was conducting a records check at that time.

Q. So I would assume if you’re still doing your traffic stop, warning ticket, that these folks were not free to leave?

A. No, they were not free to leave.

Q. So from the time that you called at 12:19 in the morning until the dog alerted, they were not free to leave, correct?

A. Rephrase -- From the time I stopped them to the time -- are you saying the dog alerted and indicated?

Q. No, the question was at 12:19 when you called for backup --

A. Okay.

Q. -- to be there when you walked the dog around, from that time until the dog alerted, it’s fair to conclude that they were not free to leave?

A. Yes.

Q. Now, the traffic law. You have training in the law as to the rules of the road under the statutes of Nebraska, I would assume?

A. Yes.

Q. Are you confident that you pretty much know the violations of the rules of the road in the state of Nebraska?

A. That’s a loaded question. No, I don’t know all of them. And I don’t know the particulars of each -- I mean, I don’t know word for word each statute or the numbers, no. I have a statute book in my vehicle that if I need to reference, I can.

Q. The crime itself, and I’m --

A. Driving on the shoulder?

Q. I’m sorry?

A. Driving on the shoulder or possession of methamphetamine?

Q. Rules of the road --

A. Oh, okay.

Q. -- period. The question is do you feel comfortable that you know, not word for word, not statute number, do you know the violations of the rules of the road in the state of Nebraska, that’s the question?

A. Yes.

MR. CONBOY: Objection, relevance.

THE COURT: What’s the relevance, Mr. O’Connor?

MR. O’CONNOR: Well, we’re going to get into the violation, why he thought it was a violation.

THE COURT: How are you going to do that? He thought it was a violation. That’s all that’s required.

MR. O’CONNOR: But I’m going to get into whether it was, in fact, a violation or not.

THE COURT: What relevance is that?

MR. O’CONNOR: Well, there’s got to be probable cause why he stopped it and why he --

THE COURT: His testimony is he believes that there’s a violation -- he believes there’s a violation. Do you want to try to talk him out of the fact he believed there was a violation?

MR. O’CONNOR: No. He’s got to have a reasonable basis for that -- believing that’s a violation.

THE COURT: But that’s what he’s testified to.

MR. O’CONNOR: But I need further cross-examination. Just because he’s --

THE COURT: Go ahead and ask the questions, but I don’t think it’s relevant.

MR. O’CONNOR: Okay.

THE COURT: The question isn’t whether there’s a violation. The question is whether the officer believed there was a violation or not. I don’t try the violation.

MR. O’CONNOR: Subjectively?

THE COURT: I don’t try the violation at all.

MR. O’CONNOR: Well, I --

THE COURT: Why would I try -- I mean, I’ve never tried a violation in a preliminary hearing or in a motion to suppress in 31 years. Why would I try the violation?

MR. O’CONNOR: Because there’s got to be a violation.

THE COURT: There does not have to be a violation.

MR. O’CONNOR: No, Judge, I think that the law is that the subjective belief of the officer is not relevant. It’s what a reasonable officer under all of these circumstances understands what the law is, not his understanding. I think there’s a general intent, and that’s why I think it’s important.

THE COURT: We differ. Go ahead and ask the question.

BY MR. O’CONNOR:
Q. You gave him a ticket for the actions that you’ve already testified to, correct?

A. No, I gave him a warning citation.

Q. You gave him a warning citation for the -- his actions on the road that you’ve already described?

A. Yes.

Q. And you believe that is a violation of driving on the shoulder of the road?

A. Yes.

Q. Based upon your training, experience and education, have you learned that there’s a definition of driving on the shoulder?

MR. CONBOY: Objection, relevance.

THE COURT: Overruled.

THE WITNESS: Like I said, I don’t know word for word what the statute says. I know that you can’t drive on the shoulder.

BY MR. O’CONNOR:
Q. And any time wheels cross that line is driving on the shoulder? That’s your conclusion?

A. Yes, the tires are moving on the shoulder. Failure to maintain lane, driving on the shoulder, I mean, they’re not within their lane of traffic.

Q. Okay. Failure to remain -- or to maintain your lane of traffic, that was the other reason for the violation?

A. No. The violation was driving on the shoulder.

Q. Okay. So not the failure to maintain --

A. No. Well, he --

Q. -- the lane.

A. -- wasn’t maintaining his lane.

Q. Okay. So --

A. By driving on the shoulder.

Q. Okay. So the driving on the shoulder was the crime that was committed?

A. Was the violation.

Q. Okay. So failure to maintain lane was not part of the ticket?

A. I may have put it on there. I don’t recall.

Q. Why would you have put it on there?

A. Because he was failing to maintain his lane.

Q. Is that the reason that he was stopped?

A. I stopped him for driving on the shoulder.

MR. O’CONNOR: Can I just have a second here, Judge, to --

THE COURT: You may.

MR. O’CONNOR: -- collect my thoughts, because I think I’m done.

THE COURT: Sure. We probably need a break here pretty soon anyway, then we’ll come back after lunch.

MR. O’CONNOR: I think that’s all the questions I have, Judge.

THE COURT: Mr. Conboy?

MR. CONBOY: I could be brief, Your Honor, if you want me to --

THE COURT: Oh, I’m not ready for a lunch break yet. Go ahead. I just don’t know where we’re going and how many witnesses we have.

REDIRECT EXAMINATION

BY MR. CONBOY:
Q. Quickly, Officer Struble, I think earlier you testified to the actions that Mr. Pollman described to you. They seemed suspicious because of common knowledge. Did you mean common
2 sense or --

A. Common sense.

Q. Okay. There’s also discussion about whether or not you knew the time frame of when Mr. Rodriguez and Mr. Pollman were in Omaha. Do you recall that?

A. I do.

Q. And do you recall --

THE COURT: Mr. Conboy, I’m sorry, I missed the first part of that question. Would you repeat it for me, please. I don’t know why. I just spaced it out.

MR. CONBOY: Sure.

BY MR. CONBOY:
Q. You recall the conversation you had during cross examination about when Mr. Rodriguez and Mr. Pollman were in Omaha?

A. Correct.

Q. And do you recall whether or not during the contact with Mr. Rodriguez and Mr. Pollman whether or not either of them said they just came from Omaha after looking at a vehicle?

MR. O’CONNOR: Objection, asked and answered on cross.

THE COURT: Sustained.

BY MR. CONBOY:
Q. With regards to the probable cause for the traffic stop, it was discussed whether or not -- it was discussed that the Mountaineer veered and jerked back onto the road. Do you recall that?

A. Yes.

Q. Do you recall whether or not the Mountaineer slowed down or applied it brakes or anything of that nature?

A. When it swerved and veered?

Q. Correct.

A. No. I don’t believe it did.

Q. And is your vehicle clearly marked as a K-9 patrol vehicle?

A. No. It does not have K-9 on it. It’s a clearly marked patrol vehicle. It says police, but it does not have any K-9 markings. I don’t have my own cruiser. We share cruisers.

Q. And do you recall whether or not you talked to Mr. Pollman or Mr. Rodriguez about you calling for any backup during the traffic stop?

A. When I had Rodriguez step out of the vehicle -- After I had returned the documents and issued him his written warning,I asked him to step out of the vehicle. He said he was going to roll his window up. I said that’s fine. He got out and stood in front of my vehicle, and I said we’re just waiting for another officer to arrive.

Q. Okay. But that didn’t occur until after the traffic stop itself ended, correct?

A. Correct.

MR. CONBOY: I have no further questions, Your Honor.

THE COURT: Mr. O’Connor?

MR. O’CONNOR: No, sir, I don’t think so.

THE COURT: You may step down.

THE WITNESS: Thank you.

THE COURT: Mr. Conboy?

MR. CONBOY: Your Honor, I have no further evidence at this time.

THE COURT: Mr. O’Connor, how do you wish to proceed?

MR. O’CONNOR: I have no evidence to present, Judge.

THE COURT: Let’s take about a 10-minute break, and then we’ll hear argument, and then we’ll proceed. Ten minutes.

(A recess was taken.)

THE COURT: We’re back on the record in 8:12CR170, and the parties are present and counsel are present. Mr. O’Connor, we talked just a moment off the record when I came back in about some clarification of the record and that you might want to offer some exhibits.

MR. O’CONNOR: My understanding is one of the exhibits, I don’t remember the number, Judge, was offered and accepted.

THE COURT: One oh three.

MR. O’CONNOR: One oh three. And do you have --

THE COURT: One oh one and 102.

MR. O’CONNOR: Yes, I would offer those as well.

THE COURT: Mr. Conboy, any objection?

MR. CONBOY: No objection.

THE COURT: One oh one, 102 and 103 will all be received for purposes of the record on number 23, which is the motion to suppress.Now, I understand where the burdens lie in this matter, but, Mr. O’Connor, why don’t you first recite to us what you believe to be the issues that should be considered by the Court. We’ll allow Mr. Conboy to respond, and then you may close.

MR. O’CONNOR: Judge, I’m going to attempt to do this. I’m not so sure that it’s a little bit complicated, and after you hear it, I’d be more than happy to take some time to do a post-hearing brief, but you can determine that after we’re done arguing here. There has to be probable cause to make the stop. I think that’s why driving on the road is important. That’s the violation, and that’s the reason that he was stopped, the only reason for -- or the only violation he was given a ticket for. So we have the driving on the road. There are two --

THE COURT: The shoulder.

MR. O’CONNOR: The shoulder.

THE COURT: I just don’t want to get the record confused.

MR. O’CONNOR: Yeah. No, please, Judge, any time Ido that, you can correct me. There are two cases, and I wish would have brought a copy, but I didn’t, that come out of this district. They are Judge Thalken cases and up to Judge Bataillon. There are to cases that involve -- Both cases involve the same incident of driving on the road -- Judge, you’re shaking your head. Are you familiar with them?

THE COURT: (No audible response.)

MR. O’CONNOR: Okay. That, I think, is where the issue is, and you have -- may very well even on the bench when questions like this come up, I’m not sure, but there’s the Supreme -- or the Nebraska case, district court case as well out of Buffalo County that made the conclusion that the driving on the shoulder statute is for a thoroughfare and, basically, people driving on there as opposed to people who unintentionally crossed that white line, even for a very brief period of time. And since that is the reason behind the Nebraska statute, I don’t think the federal courts can get involved at all as to whether this was a crime to look at Nebraska law. Now, there are cases that talk about this type of thing and okay -- seem to okay driving on the road -- or driving on the shoulder in these circumstances. Most of these case involve yet another offense. Most of these cases also involve other reasons for making the stop, such as suspicions of being an impaired driver. But you have the cases and, I think, the very well reasoned decisions in Bataillon’s and Thalken’s courts as to driving on the shoulder. Let me say what makes common sense to me, and that really doesn’t make any more difference whether it’s common sense to me, rather than it’s common sense to the officer as to what was suspicious. What’s common sense to me is you’re not supposed to drive on the shoulder. You’re not supposed to drive a vehicle, you’re not supposed to drive a car, you’re not supposed to do anything driving on the shoulder. Crossing the white line for an extremely brief period is not the reason for the statute. It’s not. It is a reason that law enforcement officers have to pull people over. It is the reason, or perhaps a motive, and I never measured here, you know, the distance, but I think it’s kind of three miles, maybe, that the officer followed from a dead stop to catch up with someone who is driving the speed limit; in that period of time he was going after this car. Okay. He says he wasn’t. I guess that’s why it’s important, is because I think of the credibility. He was going after the car. Now, agreed, United States v. Whren, his motivation is not important, and I can’t get into the other burden that would make this decision of following the car, whether, in fact, it was racial or profiling. I’m not raising that. I don’t have evidence of that. But let’s be clear on credibility of the officer. That’s what he’s doing. What’s the reason? What he does from very early on, he’s suspicious of the smell of the air freshener in the car. Overwhelming. That’s when his suspicion starts. And he admits that that’s when his suspicion starts. We go through, you know, my memory is several times during cross-examination, but we finally get at the end, yes, that that’s suspicious, and that’s suspicious for drugs, and that’s what he thought was going on. So you have the suspicious guy who’s sitting in the car that certainly looks like, hey, don’t look at me, I don’t want to be identified. Certainly the actions that common sense dictates. And the smell of the car. Those, to him, smell like drugs. It’s at that point in time, in addition to the traffic stop, I mean as far as he’s concerned, and again, what he believes is the traffic stop or not, subjectively, is not important. It’s an objective test. He is starting an investigation in this case. He wants my client to go back to the car, and he is suspicious because nobody has ever done that before. Well, okay, nobody has ever done that before. There’s nothing in training that says that nobody has done that before; therefore, they are suspicious for having any type of contraband. There’s no training that he testified to, at least my memory is, because it’s the only time that it’s ever happened to him. Since it’s the only time that it’s ever happened to him, or one of the very few times, I don’t remember, but the very few times, that is not enough to make it overl  suspiciously, and overly suspicious of what? I don’t want to get in your car if I don’t have to. There’s a dog in the car, it may not be marked, but you’re going to see that there’s a dog in the car. I don’t want to get in your car. I don’t -- I’d suggest to the Court that that’s not overly suspicious.But the investigation con tinues. He is concerned from the very start about the passenger in the car. He runs the Defendant’s name through the system to see whether there’s any history, whether there’s any warrants. I guess I don’t remember what he said there was a history -- whether he was looking for a history of prior convictions on drugs, that I don’t recall specifically. But he’s running it. And he’s running it to see whether there’s any warrants, which is proper to do. And he does that, and it’s at that point in time, Judge, there is no reason that the traffic stop, if he stops him for driving on the road, there’s no reason at all that the traffic stop -- time for a regular ticket stopped at that point in time. And it’s at that point in time, if not earlier, you have an investigation going on. This officer is doing an investigation because he believes that there’s drugs involved. This officer doesn’t take the identification of this guy who is looking weird with his actions. He doesn’t take the identification for a reason. He goes back, gives him the identification and starts asking him questions, questions that are suspicious. Forgive me, but, you know, driving from Omaha -- or from Norfolk to Omaha to buy a car, I don’t believe is suspicious. The fact that he’s doing it at midnight, he’s not doing it at midnight. He doesn’t know whether he’s doing it. He never asked the question of when he looked at the car or what he did after that. He doesn’t know. It’s suspicious to him. Nothing more. It is suspicious to him, because I think it’s weird; I wouldn’t do that. Everything that he talked about the vehicle and suspicions, there’s absolutely nothing suspicious about that at all. Nothing. But at -- let me make sure I get my time right. At 19 minutes after 12 is when the ticket could have been issued and is when he calls for backup. So he is basically --

THE COURT: Well, not necessarily when the ticket has been issued, but that’s when he testified he called for backup, 12:19.

MR. O’CONNOR: Yes, sir. My argument and nothing more than that, it’s certainly not a fact, is that he could have issued the ticket at that point in time. He did not because he was doing a drug investigation. He was doing a drug investigation so it expanded, extended the period of time for the ticket, traffic stop, into an investigation. He did not have reasonable suspicion to do it at that point in time, period. He extended it for the investigation, a drug investigation, and you cannot do that. At that point in time you cannot do that, unless you have some type of reasonable suspicion. And what he got after 19 minutes after 12 was the inconsistent, what-doesn’t-make-sense-to-him actions with the automobile. That’s it. Nothing more than that. So you have these guys that are not free to leave during the traffic stop, that’s real obvious. There’s no problem with that. But then they’re waiting. At some point in time they’re taken out of the car where they do the dog search, and these guys are waiting. They are held up. They are detained for whatever period of time, which I don’t believe is de minimus as the law says, hey, it’s okay, as long as it’s just a short period of time. It’s not a short period of time to these guys, not a short period of time when these guys know that they can’t leave. That’s not a short period of time. Now, if there is no probable cause, and there’s no probable cause if there’s no violation of the Nebraska law, and there’s no violation of the Nebraska law. Even if it did, even if it got past that, there is no reasonable suspicion to hold these two men for an investigation. Now, does the law say you can take the dog around anyway? Yeah, it does, because it is search -- it’s not a search. But these guys are still detained waiting for the dog, waiting for the backup. They are still held a long time before the search -- the dog sniffs the car and alerts. So if there’s not reasonable suspicion, then they can’t detain them. You can detain them to have the dog for a de minimus period of time. This is longer than that. He makes the stop. He’s on that road. I mean, you work -- live in Omaha, you work in Valley, you’re driving back and forth. He’s been on that road -- He’s been on that road long enough to know how far it is. He knows all of those things. He catches -- He catches up with these people, catches up with them in this period of time for a reason. The stop is there. He talks to them. He comes up with every little thing that he can see. He’s doing an investigation. And from the start, I submit to you, it is his intent to find some way, some way, to search the car, or at the very least to have the dog go around the car. That was his intent from point one. He’s got a dog in the car, he makes a traffic stop, and that’s what he’s going to do, and that’s what his intent is. So I tell you there’s no probable cause to stop. Even if there was, there’s no reasonable suspicion to hold these people, and therefore, the search of the dog is -- it’s not a search of the dog -- these people were detained, and that detention violates their constitutional rights.
                                                                                                                                                                                        
THE COURT: Mr. Conboy.

MR. CONBOY: Thank you. And I appreciate Mr. O’Connor keeping this motion clear. There’s three points, obviously. There’s the traffic stop itself, probable cause for that, there’s the duration of the traffic stop, and then there’s probable cause for the sniff. As it relates to the probable cause of the traffic stop, it’s clear that the officer had a reasonable objective basis for believing that probable cause existed. He stated in his testimony, and it’s uncontested, that he observed the vehicle slowly drift over to the side of the road, at which point the passenger side of the vehicle crossed the lane. This is on Highway 275. And at that point a traffic stop was initiated. There’s been some argument at what point the traffic stop ended. It’s been put forth to this Court that the traffic top itself concluded at 19 minutes after midnight. To be clear, this is still -- the 19 minutes after midnight when Officer Struble called for backup, the purpose of the traffic stop itself had not been completed. You know, there’s been some to-do about what actions Officer Struble took during the traffic stop itself to accomplish the task of the traffic stop, would it have been done more efficiently in another manner, et cetera, et cetera. There’s nothing that’s been alleged that would violate Mr. Rodriguez’s Fourth Amendment rights. And that’s the key. There had been no impermissible questions asked of Mr. Rodriguez or Mr. Pollman. There was no unnecessary intention of either of them. And the time for the initial traffic stop from six after midnight to the time it concluded, and not the time that he called for backup. That happened during the purpose of the traffic stop itself. So I don’t think that time is relevant. It’s just a baseline to show when he called from him. Other than that, it has no bearing on, really, the motion itself, I don’t think. But when the traffic stop concludes, when Officer Struble gives Mr. Rodriguez his ticket, explains to him the ticket, hands him the ticket, has him sign it, whatever have you, that’s when the traffic stop itself concluded. At that point it’s not contested that when Mr. -- Officer Struble asks Mr. Rodriguez for permission to have his dog run around the car and it’s denied, and then Officer Struble requests Mr. Rodriguez to turn off his car and stand by his vehicle. Yeah, he’s detained at that point, but that only starts after the traffic stop is concluded. And Officer Struble’s testimony is clear, he waited a short period of time for another officer to arrive. He did call for him at 19 minutes, and as I said, that’s only there for a baseline to show when he called. But whether or not he has any effect on the length of detention post-traffic stop I think is irrelevant. It lasted a couple minutes. Officer Struble said that once that officer -- backup officer arrived, he then got his dog out, walked it around. That in -- I mean, it’s clearly a de minimus detention. The case law in the Eighth Circuit seems to favor that when a K-9 drug dog is already on the scene and the traffic stop is concluded, as long as it happens within a short reasonable period of time after, any dog sniff itself is usually de minimus detention. However, I also argue and put forth to this Court that there’s also reasonable suspicion. Of course, any one of the factors alone wouldn’t amount to reasonable suspicion. Just because somebody said they came down from Omaha to look at a car after midnight and didn’t have a picture of it, maybe that in itself might not seem suspicious, but you add on all the other factors. And I think Officer Morgan did have several things that caught his attention. He noted that there was an overwhelming odor of air fresheners that he testified to that he smelled before he even made contact with the vehicle, walking up to it. He also noted that Mr. Pollman was overly nervous, had his hat down, wouldn’t look at him, looked straight ahead. Then there was a story about driving down, whether it occurred during the day, whether it occurred at night, I don’t know, but the fact is it was after midnight. And the question asked on redirect was did they just say they had just went to see a vehicle, it was stated it was already asked and answered. I guess the point I was trying to get out was whether or not that’s what Officer Struble understood it to be is that they just left Omaha after looking at the vehicle. That’s the way I understood the testimony. Anyway, all of these individual observations themselves, again, probably wouldn’t lead a reasonable suspicion to detain them, but together in the totality of the circumstances, I think there was ample reasonable suspicion at that point. The last point really it doesn’t sound like it’s contested. Obviously, the testimony was the K-9 itself indicated to the vehicle and alerted, so probable cause itself under Eighth Circuit case law -- Supreme Court case law is clear there’s probable cause to search the vehicle at that point.

THE COURT: Mr. O’Connor.

MR. O’CONNOR: The traffic stop is ended when the documents are returned. That’s when the traffic is ended. That’s not the question. The question is whether it was extended for an investigation. That’s the problem and the problem in this case. You don’t put anything together and say that there’s reasonable suspicion in this case with these facts. I don’t think you even come close. So the question ultimately is whether they were held long enough to violate their constitutional rights for the dog to do the sniff, which is not a search, but they were held under the circumstances for a long period of time. We’re no talking about a couple minutes, we’re not talking about that, we’re talking about significant period of time. Even if it’s five or ten minutes is not de minimus. And I think if you look at the case law, it will show that. You have heard many more of these cases than I have tried. You hear the same thing that I hear. The officers, their training on what they do in order to get and look at a car. Their training as to, and they are trained, to give the documents back because you’re free to leave, and it’s always, oh, by the way, do you mind if you talk to me, you know, all of these things, that’s the training. We know what’s going on here. I mean, he’s got a drug dog, he’s out there, he’s doing an investigation, he’s going to find a way to search that car. It’s plain and simple, he’s looking for his reasonable suspicion. It’s not this nervous person that’s he’s concerned about. He can take that identification then. So what does he do when he goes back and talks? My memory is he says you hear different things from people when you start asking them questions during this period of time. That’s also training. So what are you doing? You are investigating. And he’s been investigating this thing since he walked up to the car, an extension way past the time for a traffic stop. Thank you, sir.

THE COURT: Thank you. Okay. Let me make the following factual findings. Basically, what the testimony is, and really I don’t think there’s too much difference, really, in argument about when things occurred. Obviously, there’s arguments about what they mean and how they affect -- why they were done and how they affect the outcome of the case. But generally, I find Struble to be -- Officer Struble to be credible as to, certainly, the things that I’m going to recite here. One can take difference with some of these conclusions as to what he’s suspicious of and what he’s not suspicious of, and I do, as well as Mr. O’Connor, have some doubts about the fact that he has these suspicions but whether they’re of any value. On March 27, 2012, at about 12:06 a.m., the officer’s observing westbound lanes of Highway 275 in the area of about 275th Street on Highway 275. And he observes at that time an SUV, a Mercury. It’s driving westbound. He then follows the car. I agree with Mr. O’Connor, there does seem to be a little bit of an issue as to why he was -- why he testified he did not leave to follow that car, but somehow after observing it he ends up catching up with it. One would have to believe that he would have to do some -- have to increase his speed, obviously, more than the car he was overtaking. At some point in time, though, when he’s behind the vehicle, he observes the passenger side tires go over the shoulder. Whether it’s called the line -- the fog line, you hear it referred to and see and read it referred to in different cases. He makes the stop, and as he’s approaching the vehicle -- or gets to the vehicle, he smells an overwhelming odor of an air freshener. He approaches the passenger side. He noticed the passenger is nervous, will not make eye contact with him, or at least does not make eye contact with him. He’s speaking both to the driver and the passenger from the passenger side, but the passenger’s answering the questions. At some point in time during the exchange he asks the driver, the Defendant in this case, why he made the violation. He’s unclear exactly how he phrased that. At first it turns out the driver, Defendant, states that he did not believe he did make the violation, and then later references that there was a large pothole on the roadway. And again, it’s not directly tied as to what the question that was asked and what the answer that was given, but sometime there was at least a partial denial, or a denial entirely that he did do the alleged violation of the rules of the road when questioned about thereasons for the stop. I don’t really think any of that is really too relevant to the decision as I posture it.He asked for documents. He requests the Defendant, Mr. Rodriguez, go to his cruiser. The Defendant said he’d rather sit in his own vehicle. At that time he had the -- Officer Struble takes the documents back to his vehicle, runs a records check. Then he comes back up and has an exchange with the passenger, and there’s information given about purchase of a vehicle in Omaha and several items about that and the information about the purchase in Omaha make Officer Struble suspicious when added to the other things such as the air freshener. He then later runs the passenger. And after this is all done -- we’ll do a time line in a moment, but after this is all done, he does a written warning. He then, after giving the written warning, asks Mr. Rodriguez, who was the drive of the vehicle, the Defendant in this case, if he would mind if the officer walked the K-9 around the vehicle. That’s the K-9 Floyd, who was testified to be certified and reliable, and the defense testified he didn’t have an argument in this case with the reliability or certifications. The last certification of the dog was on March 21st, just six days before the March 27th stop. Struble testified the dog is a passive indicator, and the dog alerted and indicated on the second trip around the vehicle. The Officer Struble then made a request for a backup, who ended up being a Douglas County Sheriff. And the time line that’s established by the testimony seems to be this. That the stop itself or the sighting was around 12:06. The stop 12:06. Then at 12:19, there was a call for the assistance of a second officer. The written warning is given to the Defendant at 12:25, which is a total of 19 minutes from beginning to end.  And then Officer Struble testifies that the indication – that the dog was deployed about a minute after the arrival of the Douglas County Sheriff, which was -- the deputy, which was at 12:33. And Struble also testifies that the indication by Floyd, the K-9, occurred at about seven to eight minutes after the warning ticket was given. So that’s the time line that’s basically involved here. The Defendant, through counsel, draws a distinction to when he believes the actual traffic stop could have ended, specifically that being 12:19, at the time then he was finished with -- he, being Struble, was finished with the drive, but then went up to talk with the passenger of the vehicle. I’ll note that for the record. Basically, what’s been set out on the record is the analysis of the case. It set out the stop, duration of the stop, and the probable cause for the sniff. An officer has probable cause to conduct a traffic stop if he observes even a minor traffic violation. And an officer’s subjective intentions for conducting a traffic stop play no role in ordinary probable cause Fourth Amendment analysis. As long as the officer objectively has a reasonable basis for believing that the driver has breached a traffic law, the officer has probable cause to conduct a traffic stop. United States v. Thompson, 93 F.3d 479 (8th Cir. 1996). In determining the question of whether or not the defendant actually violated a motor vehicle code, but whether objectively reasonable officers could have formed a reasonable suspicion that the defendant was committing a code violation, that’s the issue. While an officer has an obligation to understand the law, the court does not expect the officer to interpret traffic laws with subtlety and expertise of criminal defense lawyers. United States v. Martin, 411 F.3d 1998 (8th Cir. 2005). Quoting United States v. Sanders, 196 F.3rd 910(8th Cir. 1999), a determination of objective reasonableness is not made with the vision of hindsight, but instead by looking to what the officer reasonably knew at the time. And I think that is really the definitive question here and not so much the case law mentioned, which was properly cited by Mr. O’Connor. My problem with that case law is, and I understand the conclusions by the judges that are involved, but the reality of it is that I think it parses something that doesn’t need to be parsed. First of all, if I were looking at the case from a -- as a trial judge in trying the alleged violation, I don’t think the Government has to establish driving as if it were another lane of traffic. I don’t think that’s the intent in that statute, and I don’t think it’s what the statute says on its face. But I also don’t think that that’s the issue here. The issue here is whether Officer Struble, in fact, had an objectively reasonable suspicion that there was a code violation. And I find based upon the testimony today that he did. Then we get to the length of duration of the stop,10 and then we have that issue as to how we deal with the length of duration of stop. And here I’ve set the time line out, and I’m unwilling to conclude that the officer should have, at 12:19, concluded the traffic stop, or that it did, in fact, as a matter of law conclude for purposes of calculation of the time to 12:19. I note that he did conclude it later at 12:25, which was 19 minutes into the stop, which I do not find to be an inordinately large amount of time. And I also note that within -- that the indication of the dog occurred seven to eight minutes after the warning ticket was issued. The Defendant does not contest the issue of the exterior search by the dog. The exterior sniff is not a Fourth Amendment search. I do disagree with the Government as to probable cause. I do not think Officer Struble had anything other than a rather large hunch. There’s no probable cause here, in my opinion, to search this vehicle, absent the information given by the dog. Now, an exterior dog sniff is not a Fourth Amendment search, according to the United States Supreme Court, and it does not require consent of the person who’s the subject of the search. Let’s talk first about the scope of the traffic stop. There’s nothing in this case that leads me to believe that the scope of the traffic stop, based upon the time line, was violated. That the law enforcement officer may also run computer checks to determine whether the car is stolen, to run checks to determine if other occupants of the car have outstanding warrants and to ascertain whether the driver’s license itself of the Defendant in this case was valid. United States v. White, 81 F.3d 775 (8th Cir. 1996). As to the deployment of the dog, I find that it was done on a reasonable basis, and that is not a search under the Fourth Amendment. I also find that the deployment of the dog, as I calculated the length of the deployment, to be under ten minutes, and there are specific cases dealing with deployment of the dog, and the violation and when and when not it is not de minimus. United States v. $404,905 in U.S. currency, which is, I believe, a Nebraska, our district, case, 182 F.3d 643 (8th Cir. 1999). The court held that a two minute delay to conduct a K-9 sniff with a de minimus -- it was a de minimus intrusion on the traveler’s personal liberty. In United States v. Morgan, 270 F.3d 625, the Eighth Circuit in 2001 extended that time to under ten minutes between the end of the traffic stop and the dog indicating on the vehicle. The court reiterated the position in United States v.Alexander, 448 F.3d 1014 (8th Cir. 2006), where it states “at most the defendant’s detention was extended some four minutes from the point of time which he was notified he would be receiving a warning ticket to the point at which the dog sniff was complete. Even if the lawful initiated traffic stop terminated at the point at which the trooper told Alexander that he would be receiving a warning ticket, the decision in $404,905 and Martin compels the conclusion that the subsequent conducted dog sniff was a de minimus intrusion on the defendant’s Fourth Amendment rights. Here I find that the time is less than actually -- from that time is less than ten minutes and would be included within the case law.As an aside, Mr. O’Connor, I share a lot of your frustration in cases like this. I share the frustration that the dog search is not a search, which I’m of personal belief that it is. I share the belief that the intrusion of someone who is finished with a traffic stop can have, under Eighth Circuit law, up to ten minutes as de minimus. But I can read the law, and I have to apply it as read, not as I wished I could have written it. Because I don’t think ten minutes is de minimus. And I certainly don’t think that 15 is de minimus if you want to look at the other numbers that you proposed. But I’m not adopting those numbers in making my conclusion. In sum it’s the following. Struble is credible on the issues that really make a difference. Like I say, I question some of his suspicions, but I’m not a police officer. But I don’t think that makes any difference, because I don’t think there was anything near probable cause for a search of the vehicle, absent the dog’s alert. And I do not believe that the dog’s deployment requires anything. I believe that the dog can be deployed, based upon current law, at any traffic stop at any time. So the stop I find probable cause that there is belief that a minor infraction of the motor vehicle laws was occurring. That the length of detention is notconstitutionally infirmed. That there was not probable cause to search without the dog. That the dog’s deployment, that the delay is de minimus in nature based upon Eighth Circuit rulings. So based upon that, I will recommend to Judge Bataillon that the motion to suppress, which is number 23, be denied, and that pursuant to Nebraska Criminal Rule 59.2, the Defendant may object to -- or anyone who is aggrieved by any part of it, because part of this is not pleasing, I’m sure, to the Government -- may object to my recommendation by filing a statement of objections to the magistrate judge’s recommendation within 14 days of the filing of the unredacted,and I emphasize unredacted, transcript. Having so noted, Mr. O’Connor, is there anything else I could for you or Mr. Rodriguez this afternoon?

MR. O’CONNOR: Yeah, Judge. I wonder whether findings -- or I think findings are necessary, the probable cause issue has been real clear, whether there was reasonable suspicion to even detain the Defendants based upon this evidence. So I think you need to address --

THE COURT: Yeah, I don’t think there was.

MR. O’CONNOR: Okay.

THE COURT: But I don’t think it -- It has no impact on my ruling.

MR. O’CONNOR: Yeah, the findings is all I wanted --

THE COURT: Exactly, but I’ll make that finding,because I don’t think it’s there. I think it’s just a lot of  things and a big hunch. Anything else, Mr. O’Connor?

MR. O’CONNOR: No, sir. Thank you.

THE COURT: Mr. Conboy?

MR. CONBOY: No.

THE COURT: We’re in recess. Thank you.

(12:06 -- END OF HEARING)