Left Of Greg 034 Busted with 900lbs of weed

Hey everyone, thanks for tuning in. I'm Brian, I'm the host of The Human Behavior Podcast. You're going to be watching the video version of our audio podcast. Please, guys, if you like the video, like it, subscribe to the channel. There's going to be more content down there if you're already a subscriber, and it was a better way for us to get you guys some more stuff. If you have any questions or comments, go ahead and leave them below. Check out our links down below to get a hold of us and to actually find out more places where you can get more information about this. Please like and subscribe. Follow us on Facebook at HBPRNA. Remember, all these cases that we discuss and all these discussions that we have are through the lenses of what we call Human Behavior Pattern Recognition and Analysis. So, please like it, share it, tell your friends about it, and we hope you enjoy the show. Thanks.

All right, Greg, so today's episode, from a couple weeks ago, a judge ruled that a Minnesota State Patrol seizure of more than four million dollars in marijuana from two Montana men was illegal. So, judges dismissed charges against 31-year-old Michael des Roches of Missoula, Montana, and 24-year-old Alexander Gordon of Hamilton, Montana. So, real quick background: men were pulled over last March on Interstate 94 by a trooper who said their vehicle had a cracked windshield and that des Roches was weaving. He was the driver. The judge ruled that the cracked windshield was sufficient cause to stop the vehicle but found that the trooper lacked reasonable grounds to expand the traffic stop into a search of the vehicle. I think we start right there. I think that's all the background that we need, and we can deep dive the case as we go along and bring up more details as they are necessary. How does that sound?

Yeah, it sounds wonderful. The note that I just wrote to myself, Brian, is HIDA – Henry, India, David, Tango, Alpha – and HIDA stands for High Incident Drug Trafficking Area. The reason I wrote it down is while you were talking about this, I can think of somebody going hunting—it's hunting season now—or camping or canoeing or whatever, and all of a sudden seeing the red and blues behind them and being pulled over and going, "You know, what's going on?" You've got to remember that you, and listen, our viewers and listeners, do your homework. Go to a computer and look up what a HIDA is. High Incident Drug Trafficking Areas abound in the United States, and officers get special grants. Just like officers get grants to pursue drunk drivers, they get grants to go on certain roads that transfer and transport drugs more than other roads. So, you get what I'm saying, Brian? So, I think it's your responsibility as a citizen, you know, before we get rolling, let's talk about what your responsibility as a driver and a good American and a citizen is: to know that there's a much higher likelihood to get stopped on those routes.

Okay, so that's good. I think good context—well, we're already jumping into the case and maybe why this person was pulled over is what you're getting at—but that's High Incident Drug Trafficking Areas. That's a, that's a good point. There's a lot of, there's some obviously previous case law that comes up in this, so I don't know where you want to start, but the idea, or anyone just right off the bat reading a headline, which is when you sent it a couple weeks ago when this occurred, was, "Hey, four point whatever million dollars." The search was deemed illegal, so the two men get released. My first question, of course, would be, "Do you get the drugs back?"

Exactly. You said no, which I thought in a claim—you actually had put in a claim to say that it was lost property.

Yeah.

Yeah, no, let's say, Brian, you're right on it. We're having a little levity here with the situation because points that are ridiculous: the United States Supreme Court ruled that a pretext stop is legal so long as the stop was legal at its inception. So first, let's say what's a pretext? A cracked windshield was the pretext on this caper. A cracked windshield, a vehicle dangling from a rearview mirror, objects impeding your view—all of these are things that there's a law for. Get yourself educated. There's a whole bunch of stuff like if your license plate is unreadable, right? If you have snow on top of your vehicle and it's falling off and, you know, making other drivers use their windshield—there's a billion of them. And so, the idea is a pretext means I stopped you for that broken windshield, and upon that traffic stop, I think there's a little bit more to it. So, the first thing we've got to look at is, is the traffic stop legal? And this traffic stop was completely legal. So the standard is, like you said, there's a lot of different, like, I've been pulled over when my—I had a cracked windshield because a rock came up, hit it, didn't get it fixed right away, and then got pulled over, and same thing, it was—I was in a town that I was not from. It was a small town, and I saw, when I drove past—I knew when I drove past that police officer who was going to pull me over because he looked right at me and went, as we like to use the term, "Hey, that's a good stop." So, he was also looking into, "Hey, who is this person who I've never seen before?" Completely legal for him to do that because I had looked even—exactly. Forget minor infractions. I've had that. Pulled over for the tint on the windows of a used vehicle that I bought. It was illegally tinted, I guess it was too dark, right? In an area where, yes, it was completely legal where you purchased it, but not in the area where your—

Yeah, yeah. And that's a great thing. So, that's not meaning that you got stopped, but it's a great thing that you bring up the understanding. First of all, let's think of the law. There are what's called laws, statutes, and there are civil infractions. A civil infraction is something like speeding or an equipment violation, and an officer has every right to pull you over if he believes that you and your vehicle were involved in a civil infraction. Now there are arrestable misdemeanors, and there's a misdemeanor. Here's where a person can write a summons into court for—all of those are way too deep for this caper. Let's just keep the standard on top that it was a pretext cracked windshield that was completely legal to stop.

So, what are those standards? Well, cops have the standard of objectively reasonable, then it goes to reasonable suspicion, then it goes to probable cause. And real briefly on that: objectively reasonable means that would you, Brian Marren, at that time and at that place, in the shoes of that officer, would you look at that and go, "Yeah, I can see that." In an equipment violation, you know, makes the roads unsafe, makes your vehicle unsafe to drive. You don't get to decide on that, right? Either way, someone has already decided that that law was passed. So, you, if you don't know about it or if you don't agree with it, don't know where we're going, then we call that the John Candy exception on the freeway where the state trooper stops, and if you remember, he goes, "Do you think that this vehicle is safe to drive?" And he goes, "I do, sir." I did. You don't get to decide that.

So, then probable cause and reasonable suspicion, two standards, reasonable suspicion being lower, is that an average person that was objectively reasonable takes a look at a situation and goes, "Hey, something's up." Probable cause means I actually have artifacts and evidence which would lead a reasonable person to believe that crime is afoot. So, the standards are like going up a set of stairs. And the idea is the lowest set of standards are these civil infractions. Jaywalking, for example. You're right on track, the pedestrian. You get what I'm trying to say? And so, once that vehicle is stopped legally, everything else is in play as long as that's legal. And most humans think that their search warrant is absolutely necessary because of their constitutional rights. But Brian, you and I know, yes, there are recognized exceptions to the search warrant ruling, and this is one of them. So, I'd like to, if I can, I'd like to throw them out topically and then we'll drill down into what Carroll has to say.

Okay.

Yeah, no, that's—but it's perfect. So, the simplest one, and the one that you're accused of giving most often, no matter where we're stopped—and this is where the concept "Left of Greg" (the former podcast name) comes from. I'm Greg, and Brian is "Left of Greg." That's always doing the driving, and a driver drives, right? So Brian's like, "Hey, listen, I'm going to, you know, maintain my right to silence, and if the cop ever stops me, man, I'm not telling him, I'm not going back." Exactly. And then the first time we're pulled over, the window comes down, and Brian literally says, "You can search everything," and Brian just gets out and lays on the ground in the prone. So, that's the first exception of the search rule, people, so, "have nothing to hide, hide nothing." Exactly. But you've got to, you've got to slow your rope, right?

So, consent means that you've given consent to the officer to search you, the vehicle, all that stuff. And you've got to remember this: if the cop has probable cause, he doesn't need your consent, right? Remember my words, because you have the absolute right to resist an illegal search, but you're going to get beat down and sprayed and maybe shot because if the cop has probable cause, one, he doesn't have to tell you he's got probable cause, and two, he's going to search anyway. But consent is the first exception.

Second one is plain view. And that's where a chucklehead gets stopped for whatever violation—let's say it's a civil infraction—and we come up, and there's obviously a gun, you know, between his seat, and you know, the crack pipe sticking out of the dashboard, in plain view, right? And so, anybody, and there's plain view and open view. And the difference is that police officers are acting under the color of law. So, the pretext stop got him up to that window, and he's got the right to walk around 360 and look in. And if he can see you or your occupants with a flashlight, if you have an open beer, then that would be a plain view. So, a lot of variations, Brian, but I'm going to keep it there.

That's perfect.

Yeah, so then of course, a search incident to a lawful arrest. If you're arrested and you're in custody, then a search of your effects and the vehicle are legal. They're recognized as an exception. The cop doesn't have to arrest you, and the law enforcement officer then has to go and make the additional standard of getting a search warrant. Now, once you're arrested, then the search is coming.

Then you've got emergency, also called exigency. In Michigan, it's called the existing circumstances, but worldwide, an emergency exception to the search warrant rule means, "Look, the house is on fire. I've got to get in there, and I'm seeing stuff because I'm in there giving you CPR that I wouldn't have seen." Do you get what I'm trying to say, absent the emergency? Or, "Listen, I tackle you, I knew you had the gun, and you had just run through a playground, and I look at you and say, 'Tell me the location of that gun. I don't want a little Herbert picking up the gun and bringing it to school.'" And you're going, "Wow, that's violating all kinds of rights." Yeah, but in an emergency, the courts look at it and go, "I understand. A reasonable person would have done the same thing."

Then you've got the community caretaker function, which is a really simple one where the police officer doesn't have intent to stop and search, so it's not a pretext. But he sees you broken down by the side of the road, and he comes up, and he's going to give you a hand, jump-start your car, maybe tow it. And in the normal course of his business, for his own safety, he looks around inside the vehicle. Do you get what I'm trying to say? And while trying to figure out why the car's not starting, or, you know, "Hey, you've got the wrong key in the ignition," he notices something else that opens the door.

Then, easily, the impounded vehicle. If you get arrested, they're going to impound your vehicle. Or if your vehicle is abandoned, they're going to impound it. And there's a procedure: I check the glovebox, I check the visor, I check these things. And the court says, "Hey, listen, as long as that's in writing and it's pre-existing, you don't have the right to refuse it."

And then the one we want to talk about today, which is commonly known as a motor vehicle exception: Carroll v. United States, dates all the way back to 1925, the 20s.

Yeah.

And it's called the Carroll doctrine. And this is a fun one for bad guys, but it's a fun one because it started in Detroit. And the idea is that the doctrine states that a vehicle can be searched absent a search warrant as long as you have probable cause to believe that evidence is going to be present in the vehicle, and you understand that the vehicle is inherently mobile. So, in other words, you might be able to just drive away and destroy the evidence before I even have a chance to go and get a search warrant and swear to it from a judge. Now, remember, I can go get a search warrant that doesn't mean a judge is going to sign the search warrant. But in Carroll, that's not the problem. The problem is that, "Hey, listen, you might move the car, you might destroy the evidence." And George Carroll was supposed to make, earlier in the day, supposed to make an illegal purchase of liquor and transport it. And they'd had their eye on him for a long time, because remember Windsor, Canada, very close to Detroit. As a matter of fact, if you go due south from Detroit, the Thumb, you're going to go right into Canada. So, there was a lot of bootlegging that was going on, right? And so, undercover cops are setting up on George Carroll, and George Carroll doesn't show. And so, later in the day, somebody goes, "Hey, isn't that Carroll there?" And they pulled the guy over, and sure enough, he's got liquor in the car. So, the Carroll decision starts, and the Carroll decision says, "Hey, listen, if I get a legitimate traffic stop, and the vehicle is inherently mobile, I have the right to search that vehicle without first asking for a search."

And in that case, I mean, and that's the groundwork for the case that we just talked about or that we're going to be talking about that I mentioned, because that has all the same kind of ingredients, we'll say, right? Like, like you mentioned, the storm of traffic. Yeah, right. So, you mentioned the HIDA, the High Incident Drug Trafficking Area. Well, that would be—that's what we would have today, but that would be no different than the area you were talking about back in, in terms of bootleggers and people running illegal alcohol.

So, the difference is that, just so everyone's clear, yeah, I bet. Just because you're driving down that area doesn't mean I can stop you because it's a High Incident Drug Trafficking Area, right?

Okay, no, no, you have to have a pretext, a legally recognized pretext because of a law or a civil infraction or something. Can I use that, though, as part of my pretext? I mean, come on, I don't use that. "Hey, also, another factor that led me to this decision was the fact that this is an area where..."

It's like, excellent observation, Brian. Look, you're right outside of San Diego, and so you're near a border area. So, there's a border exception to the search warrant rule. Let's not go deeply into that only because it doesn't bother me. I'm in Colorado, do you know what I'm trying to say? But the same thing is the border exception. You can get wrapped up in something where they've got the absolute right to check your vehicle for illegal activity because of that, and you had no recourse. And now here you go, man, I had this, you know, gun or drugs or whatever in my glove box, and now you're in the trick bag. So, don't be stupid. If you're in a HIDA area, that gives them one more tool, one more weight to put on their decision-making metric. If you're in a border area, you get what I'm trying to say? It's like being in a rental car or being in your buddy's car, you start losing your rights pretty fast. And this extends, let's talk about those knuckleheads that get into a car, and they get into the car with people maybe they don't know, or they might think it's a stolen car. This guy might have a gun. Listen, when there's a traffic stop, you're in the trick bag. Yeah. And does Carroll extend to searching all the passengers if I've got reasonable suspicion or probable cause? Yeah, and you don't have the right to refuse me. So, you've got to be very careful because all these ingredients, as you call them, will add up.

And the, if we go back to the case in chief that you're talking about, Brian, the officer had established probable cause in a ton of capers. But this one was a little different. And let me give you an example.

Okay, so—

It's important to understand that this specific trooper that had pulled this person over—because I read in one of the articles, it said, "Hey, he's actually known as a very good—he's really good at spotting and all." Anyone out there who is in a similar line of work—I had a buddy out here who is now at Homeland Security, but when he was Border Patrol, he had one of these units where he could just—he had an unmarked car, he could set up. He could sit there and tell me, he goes, "Look, man, I can go pull out and watch the I-5 and sit up there – the I-5 Interstate runs north-south in Southern California." He goes, "I can sit there for twenty minutes, look at a vehicle, and go, 'Yep, that one's got dope in it.'" And he goes, "You know, about eighty percent of the time, I'm right." Yes.

Yes. So, but you can develop those skills. You develop those skills, but he has to also be able to articulate it.

Yes, yes. Go to a prosecuting attorney, a DEA agent, and say, "Your Honor, I swear that based on my prior experience..." So, that's what I want to tell you about, Brian, and it's not a vehicle caper, but I think it's very germane to this argument. So, Shelley and I were called about a caper that happened in a county very close to where we are now. I'm not going to get into specifics with names to, you know, accidentally insult the idiots. But the idea was that a person went into a dumpster, and the dumpster was outside of an apartment, and they found probable cause to get a search warrant. The judge signed the search warrant, and they booted the door. Now they're in the house, and they call us. And I went down, and Shelley had another caper she was handling, and I took a look at the affidavits for the search warrant. It was faulty. And it was faulty based on the following facts, Brian.

The person wrote a very, very compelling search warrant affidavit. But what it was, is when they went into the dumpster, they forgot one thing: there are four apartments that all use a joint dumpster. So, first you have to establish that this was just the guy that they were looking for, just his apartment. And they didn't do anything about that. You get what I'm trying to say? They didn't say, "Hey, I watched this person, and with surveillance, I saw him leave his house with the garbage bag and throw it into the dumpster, and it was a very specific garbage bag." So, they rooted around, so they found the evidence, got a judge to sign, and now they're in the house. The other thing is he swore to the judge, the officer that wrote the affidavit, swore to the judge that, "Hey, listen, I knew from its smell, I knew from the way it was packaged, the 'physicians fold' (packaging method) commonly is for cocaine, this metal poker was blackened and charred." You wrote a great affidavit. The problem is the cop had been on the road for about six months and had been out of FTO (Field Training Officer) for about two weeks. So, are you telling me that it's reasonable to assume that this young police officer had all of those experiences? No. And when he wrote about them, what he was doing is he was putting his thumb on the scale to get the judge to sign it. And now he's in the house, and he doesn't know what to do. Listen, you can't resurrect something that was crappy from the beginning. That makes sense. And what would happen on your stop, the one that you want to talk about today, is kind of like that. This guy's a great cop, but what he did is he went from A to Z, he went from zero to sixty a little too fast. Okay, had the right to make the stop, but that's where it started getting squirrely when he's now on the traffic stop.

Okay, so—yeah, we're right there then. So, we kind of gave a good background of how that stuff works in pretext, and that's a little bit about probable cause. I think the Carroll decision is important to understanding. So, he noted the cracked windshield, and I think he also mentioned that it had likely swerved or that it crossed what they call a fog line, right? Yeah, right. The tire had rode that line, I guess, for several times or however many he articulated, I'm not sure. So, right there, okay, I have pretext, I have probable cause for a good stop, right? Meaning, I can issue a citation for a cracked windshield. Yeah, that's illegal. Gets me up to that driver. So, now he's there and pulls him over. So, let's talk about what happens next and how he actually ends up searching the vehicle, because I read that he asked the occupants, "Hey, you know, is there any—can I search the vehicle?" They did not consent to a search. And then he said, "Are there any drugs or anything in there?" And he said, "There might be." I think he said, "There might be marijuana because I have a medical marijuana license or it's a prescription from a doctor," right? But he did not consent to the search. So, at that point, he then, I believe, called a K9. The dog alerts on the vehicle. Now, this is a question: would that then give that officer probable cause with the dog alerts that I can then search your vehicle based on—?

Absolutely. And what he's doing now is he's confirming his suspicions. So, he's saying, "I suspected this vehicle that something was different about it because it had a camper, and in this area, every time I saw a camper during this time of the season, it was holding dope." That's my first statement. The second statement is, "I closely looked at this vehicle and noticed it had an equipment violation that I subsequently stopped it for. As I approached the vehicle, I asked a couple of cursory questions that were answered, but not to my liking." For example, "I was suspicious that they said I couldn't search the vehicle, but I can't use that against them, right?" But then I said, "Are there any drugs in the car?" And the guy said, "Well, you know, I have some marijuana, but it's legal." And then the dog hits. And now you can see, now it's raining, now it's raining probable cause.

Now, here's the only problem I get. He comes up with a ton of dope, literally and figuratively. He is lucky, he hit the motherlode, and he's used to hitting the motherlode, and this is where he got sloppy. So, this officer that's not trying to do something illegal, immoral, or unethical, what he did is he didn't use a sharp pencil. And I'll prove that to you. He says that this camper is suspicious because every time I hit a camper up, and during this time of the season, it's got a ton of dope in it. But the video that is submitted as evidence shows from the officer's GoPro cam or whatever they call him now, Axon or whatever it is, actually shows six or eight campers going by during the traffic stop. Well, okay, that—what does that make it look like? It makes it look like he's gilding the lily. He's not telling the truth. Now, we don't know what happened in the hour before that, Brian, right? Right. That can't actively—it doesn't look good for the officer.

The next thing he says is, and you quoted out of the article, that the vehicle went over what was called the fog line, which I'm taken to be that white strip before you start hitting a gravel descent. Yeah, because we don't call it a fog line in Colorado, we call it the "passing on the right, get out of my way" line. So, if you think about that line, he says that the vehicle went over a couple times, which again is completely illegal and it's a pretext for a stop. Yet the video, the officer's video, shows the vehicle doing it one time, then corrects itself in a second, a nanosecond, yeah, and then goes straight and narrow while it's being stopped. Be the judge in this one. You've got a veteran law enforcement officer that's telling you one thing, yet you're looking at the artifacts and evidence in support of this, and it's showing another. So, to be fair to all drivers, the judge has to say no. The judge has to say, "Look, great job, you're really hitting it out there, kid, and guess what, you got a ton of dope off the street. But you're not charging these guys, and the penalty is going to be that I'm letting them go." And that's how our law works. That's a series of checks and balances to ensure that a cop doesn't go out there and do what we call fishing and just start pulling over eight or ten vehicles, right, to fill a quota or to get a traffic stop where he can get a gun or get drugs. The laws are in place, and they apply equally, pendulously, to the cops and to the criminals. You get what I'm saying?

Right. And so, that's, that's a, I think a good point for you to hit on now, that once you know if it's not a good stop or they are not pulled over under some legal pretext, or you didn't find out to have an infraction, then therefore anything that happens after that is no longer—it's no longer admissible, right? Fruit of the poisonous tree. Okay, so go and explain that. That's an important concept that people need to understand, that goes into a lot of specials you see on Netflix and stuff. But please, yeah.

Yeah, and remember, folks that are listening, we do these all the time. So, if you want us to drill down into any one of the topics, we, even within a topic, just contact Brian and we'll do it. And you use these at your on-duty roll call training, or when your group gets together, or whether you're a group of AAA-insured drivers and you want to talk about it. Or that criminal—you're going to say you're the criminal trying to hide from them? Yeah, you need not apply, you bastard! No.

So, Brian, basically the things that—before we get to "fruit of the poisonous tree" exclusion principles—every American has the Fourth, Fourteenth, and Fifth Amendments that they should know and be able to recite. You remember, just a couple of days ago, you and I were in Philadelphia, and we had to educate a person on the Fourth Amendment: "No warrant shall issue except based on probable cause and supported by oath or affirmation." And you remember we were laughing because that's right out of the Constitution. And the Fourth is protecting you against unreasonable searches and seizures. Okay. But we talked about this caper, and it's okay to search this vehicle without a warrant under the Carroll decision.

So, then we popped to the Fourteenth. The Fourteenth says, "Hey, you have due process. You have the right to due process and equal protection under the law." And this worked in this case where the cop, or the jury, correction, the judge, reviewed the case and the elements of the case, and said, "No, the law enforcement authority didn't meet the standard."

And then Fifth. And we talked about this one only because people get it wrong all the time. Fifth, there's a lot of things in the Fifth, but yeah, what people always quote is, "I plead the Fifth." And in Aaron's family, it's, "I drink the Fifth." Yeah, it's the right of self-incrimination. You're probably drunk now, aren't you?

E.D.? No, it's Sober October. Remember what? Right.

Never doing this. This is so dumb, but we're so far into it, then why stop? You've got to do it, which is Kaylee checked, I roll.

Well, which is hilarious. That's my reasoning. My reasoning is, "We're this far into it, why stop now?" Which is also the same reasoning is why we finished the bottles of booze every night. The same thing that that green spotting guy said. You know, that heroin addict, you know.

But I hear people all the time saying, "Hey, I invoke the Fifth." Listen, stop and listen for a minute. You can't invoke the Fifth unless you're already in custody, and you can be prosecuted, and you're in prison. So, you don't have that right. You have that right to testify after, you know, you go on the stand. But what you're talking about is you're talking about the right to remain silent. Yeah, and chuckleheads should—I recommend, we recommend they do it all the time. I know you—you have the absolute obligation because driving is a privilege, not a right.

Yes. And the words coming out of my mouth: driving is a privilege. You are privileged to drive on a road, so therefore you imply consent for laws and traffic. You see, you accept, you—you don't realize you're accepting responsibility as well. You imply consent just by driving.

Yeah, but that's all the point about the laws. There's some things you have to keep up with if you want to drive that vehicle on a road in the United States. Look, you must comply with these things. You don't like that? Go see some of the countries we hang out in; they don't have those.

And it's no, and I ride a bike in our country, and there are still rules for riding a bike.

And you have to—you do not have a choice when the police officer stops you to provide them with the documents they request. And that's driver's license, registration, proof of insurance. Those are things you have to do. Now, do you have to tell them? I always advocate, from being three decades as a law enforcement officer, comply. Because the cop is up to something, he knows something's going on. But you've seen it in the news that there are some less trained, untrained, or unscrupulous officers that are out there that have it in their mind that they're going to do the thing their way. If that's the case, knowing that you have the absolute right to resist an unlawful arrest, and that if a traffic stop is illegal, it's going to come out in the wash, you could get killed fighting on the side of the road because that cop, hardened in his mind, might believe that he's doing the absolute right thing, and you're innocent and you're going to try to hurt him.

So, what do you do, for example? People ask, Brian, "Should I record the incident?" If you're the driver, you should shut up and do what you're told, okay? Anything that you do that looks like obstruction is going to be seen as obstruction. So, what about your passengers? Does the passenger have the right to leave? Yeah, but not when the officer is standing next to the door. You don't push the door open and start jumping out. Those furtive gestures are going to be scary. And so, the idea is to comply. And if you're the passenger, look directly at the police officer when he's not talking and doing stuff, because remember, in their mind, their things are the most important. Look at him and go, "Officer, am I free to leave?" And if he looks down and says, "Yes, you are," then quietly grab whatever is yours, say, "This is my bookbag from school." He'll probably do a cursory search to make sure there's no weapon in it, and you're going to ambush them, and be on your way. That's okay to do.

Now, if you're the driver, I would advocate early on: remember to turn the light on inside the vehicle, windows rolled down, everybody—passenger hands on the dash, if you're in the backseat, put your hands on the headrest—and, "Hello, Officer. Greeting of the day." Do you get what I'm trying to say? "How can I help you?" This is what you get, though. Nine times out of ten, you get, "Why did you stop me? What's going on with this guy? You know, you don't have the right to do that!" Just mucking up the works. Look, average for the day, son. Take a couple of minutes. It's also the same person yelling at the gate agent. Yeah, you remember the airport gate agent that guy lost his mind in front of us? "How dare you, you know, and this flight is going to ruin everything that's holy in my life." You know, it's like the idiots I see on cell phones that aren't chest-cracking surgeons. So—

Yeah, yeah. So, here's what ended up happening in this case, and I'll just, I'll just read it, because they said, you know, these two guys that got pulled over in Minnesota argued that, you know, the search of the camper was an expansion on the original reason they stopped them, right? And then the trooper didn't have any lawful reason or suspicion to search the camper. So, obviously, your traffic stop is good, you know, they had a violation, but his continued search actually didn't—they said there was a—he didn't have any lawful reason, didn't have probable cause. So, what the court said, you know, basically agreed with them, stating, you know, the crack in the truck's windshield didn't affect the driver's line of sight, as its highest point was slightly above the driver's windshield wiper. The order for dismissal stated. So, basically, okay, yes, he was good, but ensuing that the crack in the windshield wasn't as big of a deal. But either way, that was still a good stop, right? Said there was no—the court ruled there was no objective basis for removing the driver from the vehicle or for detaining the men. And nothing else before this guy, des Roches, was told to exit the vehicle was indicative of a criminal or suspicious activity. I think that's important, right? So, you said there's no objective basis for removing him, and now the officer didn't put it in the four corners of the document. Okay, we don't know that it didn't happen. We—this is why I think it's important to hit. So, that's their report. What everything else is, the trooper expanded the stop, and, you know, so everything else was after they expanded the stop, and ruled the seizure of the marijuana concentrate, THC wax, all the cash, it was improper. So, therefore, the evidence gets suppressed. And without the drugs evidence—what evidence? So, the illegal evidence, it was still illegal, these guys were breaking the law, but you're exactly right. I think that's important because there's some good legal terms there, right? They ruled that there was no objective basis for removing him from the vehicle, right? So, basically, nothing he did, nothing that the driver or passenger did before they got out of the vehicle, was indicative of criminal or suspicious activity. So, I would then say, if I'll be the court and say that, what would then that officer at the scene likely say or what do you think he saw that led him—because obviously he found the dope. Like, he just had a lot of dope, and he found it. So, he saw something or realized something that there were indicators. So, you're telling me he just obviously didn't do a good job of articulating what that was? Let's talk about that.

I have to run and see what this is. Can we pause right here?

Yeah, we can, we can.

[SOUND OF DEER, GREG LAUGHS] All good. Oh, that's hilarious. Okay, so I'm so sorry to do that. So, it's a quick edit, right?

[Brian (off mic)] Yeah, that'll be a quick edit.

So, you're going to come in with, "All right, start here," and go ahead. So, the thing that you're asking, Brian, is, I would speculate, one of two possible courses of action. One: the officer kind of looks away from the scene a little bit and thinks, "Hey, my gut tells me that something's going on, so I'm going to dig deep." But we don't get that impression with this officer because all of the research that you did and what the article shows is that he's a really good cop. He doesn't often get capers dismissed. So, what caused the lapse here? So, what I'm trying to say is one side of that yellow pad, he's an unscrupulous cop, and he's just out there fishing and, you know, digging through it, and if he didn't get anything, he's going to let you go. But he did get something in this case, and now he writes it up. I don't think that's the case here. I would say that's unlikely given his past performance.

Exactly. But and the area that he's working—any grudge? And the lawyers who even said that this is unlike his work. So, yeah.

So, yeah, when he goes up, he's got a situation that he's encountered before: a vehicle that's pulling or towing a camper. And remember, if that's attached to the vehicle, then the Carroll decision applies, as long as you don't have to open locked cases, if you don't have to do those. Like, if you get consent, you can go anywhere, and the person can stop the consent, saying, "Hey, at this point, I rescind my consent." Right? You know, and it's easy nowadays for cops to get search—a cop on the side of the road could call another trooper and say, "It's going to take a few minutes to get the—you are no longer free to go, and I'm going to restrict your movements until you get the warrant based on the probable cause I'm going to swear to." That's what's missing here. What's missing is not the warrant, it's the probable cause.

So, what he saw, what he smelled, what he felt, what he tasted at the side of the car, he should have written. So, he talks to a guy. Why does he bring up the marijuana? Now, it's again one of two decisions. Like, for example, in Detroit, the first thing you say when you're walking up on a stop is, "Show me your hands," because they're not going to kill you with your feet when they're sitting in the car, but they could have some foreign objects in their hands. Next, you're shining the flashlight, you say, "Are there any guns or knives in the vehicle that might hurt me?" You get what I'm trying to say? "You don't have any cocaine, any illegal drugs or anything?" The person has a right not to answer those, but most people are going to say, "No, not me," or they're going to answer, "It's not my car," and now we're going down that rabbit hole. Yeah. You know, "Okay, sir, step out of the car." I don't think so. But what happens is that once I'm at that side of the car, if I smell alcohol, if I see packages or wrapping that's consistent with wrapping marijuana, if the eyes are darting around, and the person's hands keep moving, and they've got an absence of episodic saliva, and the guy in the passenger seat doesn't know the guy in the driver's seat's name—all of these things start getting me suspicious. Did you read any one of those?

Did you? No, no, no.

Marijuana. Marijuana smells. It's an overpowering odor. It's just very, very different. And if you want to do a self-study program, come to Gunnison where there's more dope shops than there are humans right now, it seems. And you can smell everything from the hash oil, and you could smell the marijuana oil, and they've got all that stuff. And then there's a dispensary out by the waste processing plant that when you drive by, you get a contact buzz. Right? So, he didn't write that. He didn't write that there were glassy eyes or slurred speech, right? You know, like, "I wonder how did he go from zero to 60 with the marijuana?" So, either he said, "Hey, do you have any illegal marijuana in the car?" which is within his right to say that, and then the guy offered, let's say the passenger or the driver, "Yeah, I'm using medicinal marijuana." How does that get him into the camper? Was the camper's tires low or leaning down? Do you see what I'm trying to think? Yeah. And it doesn't logically follow from here to here.

And I didn't get the specific details, but he asked whether there were drugs in the camper and if you could search it, and he declined the search and then stated, "You know what? You got any drugs?" He said, "There might be marijuana. He has a medical marijuana card from Montana." So, there's nothing illegal about that.

Right. There's nothing illegal. But I'm sure that's when—maybe that's at some point he went, "Okay, this guy," because maybe based on this trooper's experience, that every time he's pulled someone over and found illegal drugs in the car, they've all used that same excuse. Well, that's not, Brian.

Right. Right.

And you're catching on to something. See, it's not enough. But if you couple that with, "I asked the driver seven questions. Here's the seven questions I asked him, and the driver was inconsistent in answering all seven of them. 'Where are you headed?' 'I'm headed home.' 'But you're going east, you should have been going west.' 'What's in the camper?' 'What camper? The camper attached to your vehicle?' 'This camper.' 'Well, what's in there?' 'Just camping supplies.' 'Well, why is it way down so low?' 'I didn't pack it. My sister packed it.'" Do you see what I'm trying to say? Yeah. Based on that, if we get this weave over everywhere, and I'm smelling, feeling, and tasting something, and I can base that on my previous, then I'm going in.

Now, here's my thing: this is a great caper, and he thinks he's got something, or he wouldn't have stopped him, and he wouldn't still be digging. My question to law enforcement professionals watching: what's the harm? Call and get a warrant. Call and get somebody to stick on it. How long can I keep you at the side of the road? Again, it's an objectively reasonable standard, and the standard would allow more time if you're going to—I'm going to protect your constitutional rights by going in front of the judge and saying, "Your Honor." So, this whole thing about losing the evidence, Brian, didn't have to happen. He would have likely gone to the same judge that dismissed the case to get him to sign the search warrant. And then if they would have had this stuff, the search warrant, it would have been up to a defense lawyer later trying to quash (the warrant), trying to write (reports), which probably would—but it would have been admissible, much more, much more difficult because no judge is going to get behind a search warrant and they go, "You're kind of right." You know, unless the cop was lying. Unless a police officer was lying. And nowadays, we live in a litigious society where police officers lying and all videos are the facts, right? Not protecting illegal activity, but I'm saying in this case, Brian, something smells fishy to me. How did we get from here to searching that camper, and those things weren't being articulated or what made it suspicious?

Right. And then that's, I think that's, that's another takeaway in this case is like, the guy was right. He just didn't do it right.

Absolutely right. He pulled this guy over. Been right before.

Yeah. And the vehicles go down that road. You're exactly right. You're spot on to something. There are hundreds, if not thousands, of vehicles driving by, and he chose the one. He didn't make nine traffic stops on campers in an hour and hit the lottery, okay? It wasn't just doing it by luck or throwing a rock and saying, "Hey, I'm going to pull that vehicle over." So, my thing is that, okay, sloppy. Learn from this. And I think all police officers in their district should learn. And that's what—the first thing when that article popped up, it went out as a "lessons learned" to our internal instructor development, to our internal circle, and said, "Watch your P's and Q's, and not because you have to manufacture evidence, but because you have to say what you saw and what you did that led you to that next step." What led you to opening that camper and going into the camper is completely legal if you have probable cause. In this case, it just wasn't demonstrated. It wasn't demonstrated in the officer's report. A couple of the suggestions that he made seemed to be erroneous based on the videotape.

Yeah. Okay.

Right. And that's a big search. You can't use ends-justification to clean those up, right? You can't get to the "ends justify the means," right? You can't say, "Well, look, we were right, we got it, so therefore everything, small mistakes don't matter because we were right." That's not—that's unfortunately not how it works, right?

Because actually that's how a lot of, a lot of "fruit of the poisonous tree" crimes that they absolutely can and yet they walked away because of some error in whether that procedural—a procedural error in evidence handling, right? We see all that stuff. But I think it's a, you know, and there's a lot of, you can, you can get into a number of different, not just previous cases or different case law, but even something as simple as then going, "Well, wait a minute, like the dog alerted on the vehicle. So, is it enough for me? Is it for that guy, that trooper, to go, 'All right, based on this being a HIDA area, based on this already having an infraction, based on my prior experience of dealing with cases like this where they all seem to fit a general profile of two men in a camper,' however you can articulate that, 'I can then say, "Well, now I'm going to get a dog to search the outside of the vehicle or see if it can alert on drugs?"' Do I need something? How does that work? Because if I have that, then I should be able to say what the dog alerted, I can now use that as probable cause to search the vehicle."

Another, another incredible question. So, I would answer it this way: if we were in a school, we wouldn't be having this discussion because there are certain exceptions. We're in a school for the safety, for the good of the school, and a public school specifically. Were it a private—because private corporations—sometimes you can have a dog walk through and a dog alerts right after, that's enough. A traffic stop is a different animal, and Carroll applies to all the states, but different states have different regulations about how dogs shall be used. So, for example, if I'm in an airport, a dog anywhere, and if the dog alerts, you're in a trick bag. Yeah, a traffic stop is a little bit different, Brian. So, some things, for example, if it's an officer with the K9, and the K9 walks up to your car with him and alerts, you've got something. But I would say that the safest way to do it is to make sure that you already have reasonable suspicion, you already have probable cause, and then the dog confirms your suspicions. Because if not, you're talking about a blanket search policy, right? And then some agencies may have this, some—but some states may have that, but that's a—"I'm going to continue to pull somebody over till my dog hits on it," and that's—we want to see that, right?

And then that's, that's kind of what I was getting at, taking a defense attorney perspective. I mean, isn't technically a dog sniffing my vehicle, that could be considered a search? I mean, right?

Right. But if you roll the law back and say, what right? A parked vehicle is completely different, okay? If a vehicle is in a parking lot at the airport, you get what I'm trying to say? Yeah, it's different. If that vehicle is idling. If a vehicle is idling in your own driveway, it's different. If it's idling at a tollbooth. You see what I'm trying to say? But here we had an intrusion where the police officer stopped a vehicle on a roadway, even though that vehicle is at the will of the state or the interstate road system, and even though you have implied consent because of your license, you still have your Fourth and Fourteenth Amendment under the U.S. Constitution. And even though Carroll applies, I have to demonstrate that you did something that was suspicious enough to rise above a level, and that standard, Brian, is not unlike our baseline plus anomaly decision. And that keeps circulating, right? So, B + A = D came over the hump, that he made the traffic stop. Now, it came back around when he was doing his questioning. And for whatever reason, he thought that he had enough to get the folks out of the vehicle. Then he started asking about the camper, and maybe this is going on. But what he did is he left huge gaps of logic and information. And in those little spaces, the judge says, "You know what, there's just not enough here. It's just too thin. I can see between the lines what you were doing, but you just didn't prove your case." And guess what, the judge has the obligation, one, to protect the rights of the citizens, but two, also not to let crappy laws go forward because that's going to create a precedent, and then I'm going to cite that precedent on the next one. You know, I'm going to say, "Well, the 'Smith camper' defense." Yeah. And you can't do that. The "tie goes to the runner" in the law. And here these two chuckleheads escape. They were making, I believe, Brian, if I read it right, they were making like 30 grand.

Yeah. Did you just run for another person? Yeah. Okay.

What it amounted to be, everybody could have used this. The state could have used the money and built a playground. This cop could have used another accolade. DEA could have used this to, you know, deal with suspicion on a RICO caper for what I'm saying, for the guy that paid him the 30 grand. The Treasury might have been because it would have been a really good caper. And here it gave us an opportunity to nitpick and look at all these different things. But it also, I think, should give our law enforcement professionals in the audience, who are a large part of our audience, it should give them a talking point, a starting place to begin the discussion on reasonable suspicion and probable cause. And more so, Brian, about something you harp on in class all the time, is articulating around the four corners of the document. It didn't exist, and if you're making it up on the stand, your case is going to fall apart.

And I think that, yeah, and that's kind of what I was getting at too, it comes down to—I mean, this is a perfect example, and there's plenty others out there where the cop is 100% dead on. He knew what he had, but he couldn't articulate it. So, we're looking at it like, oh, yeah, or didn't, however that is. And I think that's a, that's a huge piece that's missing in a lot of places of getting your actual or, I mean, you know, no one likes to sit around writing reports, right? You know, I want to do, I want to go to the gym, and we want to go to the range, and we want to go running and busting doors and ramming cars, but you sit down with a pen and a piece of paper, or sit down behind a computer, everyone just wants to get it over with. But that's obviously, that's where you make your money, right? In this case.

In all cases, Brian. Back in the day, when I first started, I just come out of the military, and I wasn't an MP, and it was either go dig and work in the auto plants or become a cop. And I remember the first night on the road, the joke about, "Don't touch the car keys. Don't touch the radio. Yeah, heaven forbid, don't touch your gun." You know, and then a big wad of chew spit. And then it was like, "Well, what should I—how should this report be phrased? How do we build the report?" And the answer was, "Saw felon, arrested, saying." And then a little bit later was, "Listen, don't let the facts get in the way of a perfectly good story." Remember, we live in a culture where things get better with time, many times, like cheese and wine. And police officer standards have risen over the years, and they're really, really good now. Yeah, there are still some mistakes made. And when we link it, we link it back to training. And I think you brought up a great point. People think training is laser-scoping and targeting and hitting a guy at 1,600 meters with a weapon. So, now, you know, what report writing, court testimony, yeah, barring an arrest affidavit or a search warrant?

Well, I think even will you—I mean, pretext to a stop. I mean, what else? How do I look at that vehicle? Any cops? No, pretext is completely legal, you know. We run into them all the time. "And go, 'Isn't pretexting and profiling illegal?'" And there's another one, profiling. We profile on your computer, we're profiling all the time. As long as it's not racial, we gave a brief the other day, you remember we're talking and talking and talking, and the guys are going, "Wow, it's really pretty impressive. Not one time did we say color or religion or it's a male or female." None of that stuff matters. It doesn't matter. It doesn't matter. That's, you know, let the, let the media and pop culture play with that one. We'll stick to case law and procedure, artifacts, and evidence in support. We don't normally find in all those.

Yeah, you don't usually, you're not going to see that, that's for sure.

But in, and just to, you know, ask one more time: do they get the drugs back? Okay, I'm asking for a friend.

Normally what happens is there's a school circle, and all the cops bring out the beer and smoke themselves blind. Yeah. Is that—that was a joke back in high schools. Everybody said that, "Don't the cops have the best dope?" You know, that law enforcement professionals took it on. Well, it's not true. I knew of the cops who stole my beer or took my beer when I was in high school and underage. They definitely took that home. Here's something I'm disclosing, a sacred trust that I'm not supposed to be sharing, but there was a cop known only as Dangerous Dan, and Dan liked to call—and you could always tell that he had run into illegal possession of alcohol back in the late 70s, early 80s, because any party that he showed up at, along the beach on Lake Huron, you know, Detroit's beautiful Detroit River, he would bring a cooler, and we were like, "Wow, he's actually contributing." He would open it up, and it would be one Miller High Life, one Budweiser, and one wine cooler. Yeah, "Where did you get these from?" And then he'd have like three different cigars that were blunts, right? Yeah. But he had like two in the back of the Antonio & Cleopatra. So, you could tell what he was doing: he was, he was definitely doing his own evidence destruction program. So, you can't do that. That stuff's illegal. More so, they don't—they don't do it like what my dad did when I was a kid. He found a pack of cigarettes in my room, and he said, "You're going to sit here and smoke every one of these until you don't have—" I wish my old man would have done that when he found dope in my room. Like, you know, those fake train dioramas. No. Oh my God, we called it the Fourth of July weed because it burned your shirt. And, you know—

I think, I think that's a, that's a good spot to kind of come up without an attorney. Yeah. Well, we want to go any farther without the advice of legal counsel, that's for certain. But, but I think it's a good—I think, Brian, the reason we're having fun on this one is nobody got hurt.

Yeah, got a trick bag.

Yeah.

Anyway, with a good ending to a situation, dope got off the streets, and you learned a valuable—

Oh, yeah, it was exactly. And you're also getting into the fact that in some states that's not, in that amount, I'm sure, but it's legal, so it's not something that does, you know, that personal social issue. Yeah, it's a lot of personal use. But anyway, yeah, it's another takeaway. We'll go down, we can go into any one of those other cases that we brought up or different, I mean, some of the different issues that are involved. So, everything that's involved from the criminal justice side, from the legal side, from the procedural side, from the articulation search, and when we can go down the rabbit hole on any one of those if anyone's interested.

But and the one thing we never asked for is opinion, because opinion-based testimony here, it's like it's—everybody's got one. Emotion stinks. If it's not legal, moral, unethical, if it's not scientific or in those realms, then we're not interested in it. And we'll tell you our subject matter expertise opinion, and if we're wrong, we'll correct ourselves on the air. But it's not going to be the—these streets of what's happening now, or that's going to happen, you know, in the book club in Gunnison. It's going to be, you know, we're going to talk about the real hard issues.

All right, well, that's—I think that's a good place to stand for today. Thanks everyone for tuning in, and thank you. Training changes behavior.