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Wednesday, August 30, 2017

My nephew was victim of bogus search in Clever, MO, even though SCOTUS found in "Rodriguez" that cops must have reasonable suspicion to extend traffic stops


Blake Shuler
You might think word of U.S. Supreme Court decisions would filter down to all jurisdictions, no matter how small. But they apparently don't make it to Clever, MO. That's how my nephew, Blake Shuler, wound up with a criminal record, as fallout from a traffic stop and unconstitutional search of his vehicle.

Shouldn't the not-so-clever cops in Clever keep up with U.S. Supreme Court (SCOTUS) decisions? Yes, they should, but Blake's experience indicates they do not. Clever Municipal Judge Matthew B. Owen certainly should keep up with high-court rulings -- as should any attorney who practices before him, such as Blake's "counsel," David Shuler (my brother) But alas, they don't seem to keep up with them either. Perhaps the cops, the lawyers, and judge simply don't care what the nation's highest court rules -- especially if it runs contrary to their personal beliefs or instincts.

Such stupidity and/or callousness has repercussions for the public. In Blake Shuler's case, it left him with a criminal record he does not deserve. How do we know? A SCOTUS ruling that is barely two years old -- focusing like a laser on the law of traffic stops and vehicle searches -- makes it clear.

First, let me note that this case goes way beyond a family member's experience in a tiny midwestern town. Issues related to traffic are probably the No. 1 reason many Americans come in contact with our "justice system." And what often starts out as an incident that appears likely to end in a ticket or a warning, can suddenly turn much more serious. In fact, Americans probably are most vulnerable to abuse of ignorant or reckless law-enforcement officers when they are driving, or riding in, a vehicle.

Here is some advice from the Legal Schnauzer: Next time you get pulled over by a cop, remember one word: Rodriguez. It tells you much of what you need to know about search of a vehicle.

SCOTUS found in Rodriguez v. U.S. (2015) that "a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation."

The Rodriguez court goes on to hold that extension of the stop beyond its traffic-violation purpose is lawful only if officers have a "reasonable suspicion" that additional criminal activity is associated with the vehicle. From the opinion:

We granted certiorari to resolve a division among lower courts on the question whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. . . . [W]ithout additional reasonable suspicion, the officer must allow the seized person to depart once the purpose of the stop has concluded.”

The dog sniff in Rodriguez produced more than 50 grams of methamphetamine, and the driver faced federal drug charges that had him staring at a five-year prison sentence. But SCOTUS found the purpose of the stop involved an officer's observation that Rodriguez had driven on the shoulder of the road. Did the officer have reasonable suspicion of any other criminal activity, beyond the traffic violation? In other words, was there any reason to suspect there were drugs in the vehicle, justifying extension of the stop and a search of the vehicle via a dog sniff?

David Shuler
SCOTUS noted that the district court found "the dog sniff in this case was not independently supported by individualized suspicion" and vacated the Eight Circuit's judgment, sending the case back to lower courts for further proceedings consistent with its opinion. In essence, SCOTUS found that Rodriguez and his passenger should have been allowed to depart once the traffic warning was written. From the opinion:

An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But contrary to JUSTICE ALITO’s suggestion . . .  he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.

What about Blake Shuler and his passenger, once a breathalyzer test proved he was innocent of DUI? Should they have been allowed to depart, instead of being subjected to a vehicle search? There is nothing in the incident report suggesting police suspected the presence of drugs in the car, or suspected any other criminal activity associated with the car or its passengers. In light of the 2015 Rodriguez case, the cops narrative (see below) strongly suggests they had no "reasonable suspicion," meaning the vehicle search was unlawful.

Did David Shuler pursue that line of defense for Blake? The record indicates he did not, and David is not responding to questions about the matter. But we next will present the questions that were posed to him.


(Previously in this series)


Blake M. Shuler, my nephew, pleads guilty to possession of marijuana and paraphernalia . . . (6/29/17)


My nephew, Blake M. Shuler, faced a harsh lesson of American life . . . (7/26/17)



My nephew got legal help from Missouri lawyer David Shuler . . . (8/23/17)



Recent SCOTUS ruling indicates . . . (8/28/17)








18 comments:

Anonymous said...

If he can afford it, your nephew should take this to federal court and get it overturned.

legalschnauzer said...

@8:40 --

Agreed. The Rooker-Feldman doctrine might be a hurdle he would have to clear. But a competent lawyer should be able to tell him upfront whether he can get past Rooker-Feldman (RF). RF bars efforts to appeal state-court rulings to a federal district court, holding that such appeals can only go to the U.S. Supreme Court. It's a stupid doctrine that should have been overturned years ago. In my view, Blake would be challenging an unconstitutional search, a federal issue that should get him over RF. Of course, I'm not a lawyer, but I play one on the Internet.

legalschnauzer said...

For those who might be interested in learning more about Rooker-Feldman -- trust me, it can be a major issue if you ever get cheated by a state-court judge -- here is URL to one of several posts I've written on the subject:


http://legalschnauzer.blogspot.com/2016/08/even-11th-circuit-to-which-he-now-is.html

Anonymous said...

I'm not sure your analysis on this correct. In my view, it's not so clear that this was unconstitutional.

legalschnauzer said...

@8:54 --

I can only suggest that you read the Rodriguez opinion carefully, and then read the police investigative report. If that doesn't make it clear, not sure I can help you.

Key question: Is there anything in the incident report to suggest the cops suspected drugs were present in the vehicle. Did they see anything, hear anything, smell anything that gave them reasonable suspicion? The cops' own words show that the answer is "no," and that makes the search unconstitutional. Pretty simple, really.

Anonymous said...

I wonder if cops get any training at all on new court rulings, state or federal, that might effect how they are supposed to do their jobs.

legalschnauzer said...

@9:06 --

Great question. My guess is no. Any such training would have to be done by someone from outside the law-enforcement department (LED). I've yet to meet anyone from an LED that would be smart enough to make such a presentation. Perhaps a law professor from a state university, or a career employee from the state attorneys general office, might be able to do it. But I doubt that kind of thing happens. For one thing, sheriffs and police chiefs don't want educated, smart employees. Those kinds of people ask tough questions sometimes, and that's the last thing chiefs want.

Anonymous said...

Back in about 1970 or thereabouts in Miami, FL, two of my friends were towing a car to the shop using a rope. A police officer pulled them over for an 'illegal towing device'! The next thing he did was search the cars and he found 1 or a piece of 1 joint, upon which one buddy was arrested. He goes to court and in less than a minute of opening statements, judge admonishes the officer - "You can't search people or vehicles for traffic violations - case dismissed". That's how it is supposed to be...what a waste of time for all!

D.m.
Phenix City

legalschnauzer said...

DM --

Your friend was fortunate to get an enlightened judge, one who actually knew the law and took it seriously. Clever, MO clearly does not have such a judge.

Anonymous said...

I bet most cops get a big pat on the back from their peers -- an "attaboy" -- when they pull in any drug "criminal," even if the search was illegal. No wonder they have no respect for the law.

Anonymous said...

It doesn't sound like Rodriquez would benefit your nephew. The police report you attached says that he failed the breathalyzer test at the site he was pulled over at and then failed 3 sobriety tests on site and then he was taken to the police station where he passed the breathalyzer test and returned to his car. During the time your nephew was away from his car, the 2nd officer found the drugs. There is no explanation that was given in the report as to why the 2nd officer was searching the car for drugs while the 1st officer had taken your nephew to the police station.

legalschnauzer said...

@12:13 --

Yes, there is no explanation was to why the 2nd officer was searching the car for drugs, and that is the problem. There is no claim that the cops saw anything, smelled anything to give them reasonable suspicion of drugs in the car. Thus, the search was unconstitutional. Rodriguez absolutely benefits my nephew.

Anonymous said...

Roger, I believe you are incorrect to try to link the Rodriguez case to your nephew. First, reasonable suspicion does not give an officer the right to search a vehicle. Only probable cause gives the right to search. Reasonable suspicion only gives the officer a right to detain the subject and vehicle to allow time for a dog sniff. The dog alerting to the car gives probable cause to search. From my reading of the case, the search took place while Blake was away from the vehicle, be it going to city hall or while headed back to his vehicle. Therefore, the search did not extend the duration of the stop, so Rodriguez would not apply. Had they allowed Blake to arrive at his vehicle and then say stand by while we wait on a dog to sniff, Rodriguez would apply. Whether the search was constitutional or not depends on what happened with the car and Blake's girlfriend while he was away. Until you know that, you are only guessing.

legalschnauzer said...

@4:00 --

You aren't taking in all that Rodriguez holds. Yes, it deals with extending the time of a traffic stop. But it also says detention cannot continue, absent reasonable suspicion of any additional, or individualized, criminal activity. There is nothing in the incident report that points to suspicion about drugs, so the search was unconstitutional, and Rodriguez does apply. I would suggest you give Rodriguez a closer read. You will see it uses the term reasonable suspicion, not probable cause, multiple times.

Anonymous said...

It does mention reasonable suspicion, but that isn't a searching standard. An officer has to have probable cause to search a vehicle. Reasonable suspicion is a different standard. The officers need reasonable suspicion to detain a person to wait on a dog to sniff for drugs. The dog alerting on the vehicle gives them probable cause. The court is saying that the detention was unconstitutional because it was absent reasonable suspicion. Anything that comes after it is inadmissible because it shouldn't have happened. Maybe you have heard of fruits of the poisonous tree. Terry v. Ohio is the main case that deals with reasonable suspicion. It gives the officer the right to detain a person with reasonable suspicion and allows an exterior pat down of their person for weapons. It doesn't give probable cause so they can't search pockets beyond the external pat down. Unless an exception is used, searches still require probable cause. This wasn't about extending a stop and that is all Rodriguez involves.

legalschnauzer said...

@7:51 --

We'll probably have to agree to disagree about whether Rodriguez applies here. Whatever language you use, cops did not have probable cause (or reasonable suspicion) to search the vehicle, so my nephew has a criminal record he shouldn't have. And he wouldn't have it if he'd been able to get a lawyer who is worth a crap.

Anonymous said...

Except they may have been given consent to search, which without talking to Blake we will never know. Attorney client privilege would prevent your brother from answering those type of questions.

legalschnauzer said...

@11:32 --

Blake was at Clever city hall, proving his innocence of the DUI charge, so he couldn't have given consent for a search. He wasn't there. If the officers had consent, they should have said that in the report. They didn't.

Attorneys comment on criminal cases all the time, and even if privilege exists, a client probably would happily waive it to show there was no consent. My brother probably doesn't want to take questions because he knows he did a crappy job of representing his client. He was more interested in not upsetting the legal/law enforcement apple cart.

BTW, we learned today that Clever apparently has a corrupt police chief, who has been accused in scheme to steal $27,000 in public funds.


http://www.news-leader.com/story/news/local/ozarks/2017/08/25/clever-miller-police-chief-brothers-worked-together-steal-city-money-troopers-say/602337001/