Probable cause found in odor, blunts and conflicting stories

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Despite a rain-averse drug dog’s failure to detect narcotics, a divided state Supreme Court recently held, York County deputies had both reasonable suspicion of criminal activity and probable cause to conduct a warrantless vehicle search.

In 2008, Sheriff’s Deputy L.T. Vinesett pulled over a rental car being driven by Kenneth Morris II at a gas station off Interstate 77. Morris had allegedly been tailgating another vehicle.

Morris said he was headed back to Wilmington, North Carolina, from Atlanta, where he went to “see some girls.” His passenger, Brandon Nichols, confirmed the pair was returning from Atlanta, but said they went to see a basketball game.

A consensual pat-down of both men yielded nothing illegal, but Vinesett claimed that he knows drug activity when he sees it. Vinesett radioed for a K-9 unit and a drug detection dog, a 7-year-old veteran named Justice, circled the vehicle twice without alert. Nevertheless, the deputy asked Morris for permission to search the vehicle. Morris refused, but Vinesett, believing he had probable cause, proceeded.

After finding no contraband in the passenger compartment of the vehicle, Vinesett conducted a more fruitful search of the trunk, uncovering a gift bag containing 393 ecstasy pills and a half-pound of marijuana hidden under the spare tire.

Morris was arrested and subsequently sentenced to 30 years in prison. But he argued on appeal that all the fruit harvested by Vinesett was from a poisonous tree. The deputies, he contended, unduly prolonged the traffic stop and lacked probable cause to search the vehicle’s interior, particularly the trunk.

Writing for the court, Justice Kaye Hearn said that the totality of the circumstances, including a rental car that smelled of burnt marijuana; numerous empty Red Bull cans and hollowed-out Phillies Blunt cigars in plain view; and the conflicting explanations for visiting Atlanta provided reasonable suspicion for a reasonably prudent officer.

The trial court had analogized the hollowed-out blunts to finding a crack pipe in the vehicle.

The Supreme Court again pointed to the totality of the circumstances and the “commonsense,” “nontechnical” and “objective” elements used in determining that probable cause existed to search the vehicle’s interior without a warrant or permission.

“Although those factors appear banal independently, cumulatively they indicated drug trafficking to Vinesett, based on his training and expertise,” Hearn wrote.

Additionally, the 13-minute stop, the court found, was not “unduly prolonged or burdensome,” especially in light of repeated requests from both men to use the restroom.

Morris argued that because no drugs were found in the passenger compartment, deputies lacked probable cause to search the trunk. The court, however, cited 1982’s United States v. Ross in noting that the scope of a warrantless search “is defined by the object of the search and the places in which there is probable cause to believe that it may be found.”

Morris’ contention, the court held, “mistakes the object for which Vinesett had probable cause to search.”

“Vinesett was not simply looking for burnt marijuana based on the smell he detected at the inception of the stop,” Hearn wrote. “In our view, it is clear the object of his search was raw marijuana.”

Justices Costa Pleicones and Donald Beatty joined in a short dissent, in which Pleicones said he felt it was a “close question” as to whether the stop was unlawfully extended, adding that he would reverse and remand for a new trial.

“In my opinion, once the drug dog failed to alert, the already marginal ‘objectively reasonable suspicion’ to search the vehicle and its trunk evaporated,” Pleicones wrote.

Vinesett conceded that the lack of an alert from Justice could serve as a good indicator that no drugs were present, but said that the dog was less than diligent during this particular search, stopping frequently to shake off rainwater.

The 9-page decision is State v. Morris (Lawyers Weekly No. 010-019-15). The full text of the opinion is available online at sclawyersweekly.com.

Follow Heath Hamacher on Twitter @SCLWHamacher