Monday, October 05, 2009

Sticking nose inside car constitutes search

Federal public defender Stephen P. McCue won in United States v. Montes-Ramos, No. 07-2027 (10th Cir. Oct. 1, 2009)(unpublished), obtaining suppression in a New Mexico federal possession of marijuana with intent to distribute prosecution. The Tenth Circuit addressed two issues: (1) is it a "search" for an officer to stick his nose just a few inches inside a car to see if he can smell drugs and (2) if so, was it unreasonable in this case. Although the court indicates the answer to the first question is not a simple question, it concludes that "a police officer's intentional act of intruding a vehicle's air space, even if by only a few inches, constitutes a search within the meaning of the Fourth Amendment." On the issue of the reasonableness of the search, the court notes that warrantless searches are presumed to be unreasonable, with exceptions:
If [Officer] Rodriguez reasonably suspected Montes-Ramos was transporting illegal narcotics, he could have detained Montes-Ramos and investigated further. He could have asked if Montes-Ramos was transporting narcotics. He could have asked for consent to search the vehicle. He could have stood at the car door, waiting for the smell of marijuana to waft out the window. He could have called for a drug dog to sniff the exterior of the vehicle. And if his suspicion about drug trafficking caused him to fear for his safety, he could have removed Montes-Ramos from his vehicle, or looked (perhaps even slightly intruded) into the vehicle to determine whether there were weapons within Montes-Ramos' reach. He could not, however, engage in a warrantless sniff search for drugs-even a minimally intrusive one-unless he had probable cause to believe the vehicle contained contraband or evidence of a crime.
Here is coverage at

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