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Criminal – Investigatory stop supported by reasonable suspicion

A law enforcement officer lawfully detained the defendant as he was emptying his truck on a rural road, and the appeals court upholds the denial of the motion to suppress.

Background

Indicted for illegal firearm possession, Steven Nestor moved to suppress the firearm and other contraband, arguing that the items were illegally seized during an investigatory stop that was both unsupported by reasonable suspicion and unreasonably extended to permit a vehicular dog sniff.

During the suppression hearing, the government presented several exhibits and the testimony of West Virginia Natural Resources officer Benjamin Riley. The district court found that on May 10, 2017, Officer Riley was on duty traveling on a rural road in Harrison County, West Virginia, when he observed Nestor removing items from the bed of a truck that was parked off the left side of the road, on private posted property, and placing them on the ground.

Officer Riley knew the rural road to be an area where individuals illegally discarded garbage, and he had received prior complaints from nearby residents about individuals creating open dumps on the roadside. Officer Riley stopped and asked Nestor what he was doing. Nestor responded that he was making room in the truck to haul away portions of a nearby dilapidated trailer.

At that time, Officer Riley saw another person hiding on the opposite side of Nestor’s truck. With his suspicion raised, Officer Riley ordered the person to show his hands. When the person stepped out, Officer Riley recognized him as David Martin, whom he had arrested in the past. Being suspicious of Nestor’s explanation and Martin’s attempt to hide, Officer Riley parked his truck and continued to question the two men, who asserted that they had permission from the landowner to tear down the dilapidated trailer.

Officer Riley radioed dispatch (at 12:31 p.m.) that he was investigating an illegal dump and requested a warrant check on Nestor and Martin. As Officer Riley proceeded to obtain the license number on Nestor’s truck, Nestor admitted that the license plate was issued for another vehicle he owned and that the truck was not registered or insured. After confirming Nestor’s admission and that neither Nestor nor Martin had a valid driver’s license, Officer Riley decided to arrest them for the misdemeanor offense of creating an open dump. Officer Riley typically permits individuals to correct their actions rather than arresting them for creating an open dump, but he felt that the totality of the circumstances warranted an arrest in this situation.

At 12:50 p.m., after Officer Riley decided to arrest Nestor and Martin, Deputy Deem arrived on the scene, followed eight minutes later by Deputy Laulis, who proceeded to conduct a dog sniff around the truck. After the dog made a positive alert, the officers searched the truck and seized the firearm at issue in this case, as well as other firearms, drugs, and drug paraphernalia. Subsequently, Officer Riley requested a tow truck be sent to remove Nestor’s truck from the scene.

Analysis

We find no error in either the district court’s factual findings, which are supported by the record, or legal conclusions, which comport with the controlling legal principles. Stated succinctly, we agree with the district court’s apt summary: “Officer

Riley subjected Nestor to a lawful investigatory detention pursuant to Terry v. Ohio, which concluded in an arrest supported by probable cause to believe that Nestor had been creating an open dump. The subsequent dog sniff and search of Nestor’s truck likewise were in compliance with the Fourth Amendment.”

Affirmed.

United States v. Nestor (Lawyers Weekly No. 001-150-18, 7 pp.) (Per Curiam) Case No. 18-4320; Sept. 27, 2018, from N.D. W. Va. at Clarksburg (Keeley). Katy J. Cimino for Appellant; Traci M. Cook for Appellee.

 

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