Category: Narcotics

Mandatory Minimums on illegal drug cases

In 2013 United States Attorney Eric Holder sent a memo to his Assistant United States’ Attorneys noting that not all illegal drug cases should demand mandatory minimum sentences. If you have a case drug case in Federal Court or Minnesota State Court, please contact Patrick Flanagan at 651-214-7209 to discuss your case

Click here to read more about the Holder memorandum

Or watch the news conference on the subject here http://www.youtube.com/watch?v=CcuzCNwFktA”>Holder Conference

Give a friend a ride – make sure you know what’s in the van before you do

There are times when a person may find themselves in a situation wanting to make some easy money. Usually, if it seems too good to be true, it probably is. In the Case of United States v. Listman, a young man agreed to drive a van cross country for about $1,000 a trip. The Defendant was told there were drugs in secret compartments within the van, although Defendant Listman never actually saw the drugs. However, as the case discusses, the knowledge he did have was enough for a jury to convict him of conspiracy to distribute methamphetamine. Read below to see how a seemingly simple act can get you wrapped up into a conspiracy.

Summary:

UNITED STATES v. LISTMAN (4-12-2011)

The Jury convicted Defendant Listman of conspiracy to distribute methamphetamine for his role driving a van carrying the drugs in a hidden compartment. Defendant Listman did know where the trap doors were on the vehicle and there was no evidence that he ever saw the drugs. However, The Federal Court of Appeals Held that Evidence that Defendant Listman knew the van carried drugs was sufficient to support the conviction. There was no need to need to prove he knew where in the van the drugs were.

Furthermore, The Federal Court of Appeals Held there was no error in allowing an officer to testify that Defendant Listman seemed to be under influence of drugs. This testimony was allowed not to show that Defendant was actually under the influence, but was relevant to show his knowledge, court said.

The Federal Court of Appeals rejected Defendant Listman’s argument that since he did not ever see the drugs and really did not know if he was told the truth about what he was doing, that he should be allowed to provide a “Deliberate ignorance” instruction to the jury.

Complete Decision:

636 F.3d 425 (2011)
UNITED STATES of America, Appellee,
v.
Bruce LISTMAN, Appellant.
No. 10-1721.

United States Court of Appeals, Eighth Circuit.
Submitted: December 17, 2010.
Filed: April 12, 2011.

428*428 Steven Ray Davis, N. Little Rock, AR, for appellant.

Anne E. Gardner, AUSA, Little Rock, AR, for appellee.

Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.

RILEY, Chief Judge.

A jury convicted Bruce Listman of conspiracy to possess with intent to distribute at least 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. Listman appeals, arguing there was insufficient evidence to support the conviction. Listman also challenges the district court’s[1] evidentiary rulings and inclusion of a deliberate ignorance jury instruction. We affirm.

I. BACKGROUND

A. Facts[2]

From approximately March to November 2008, Listman was a courier for the Valdovinos drug trafficking organization. Candice Russell recruited Listman to drive with her from California to Arkansas because she did not have a driver’s license.

Russell and Listman drove vehicles modified to include a trap door concealing a hidden compartment. The vehicles carried methamphetamine to Arkansas and cash back to California. Listman and Russell deny knowing the specific locations of the traps.

Listman accompanied Russell on four trips.[3] Russell did not tell Listman they were smuggling drugs during their first trip to Arkansas. During their second trip, Russell told Listman “what was going on … [b]ecause it wasn’t right for him not to know.” Russell received approximately $2500 per round-trip. In turn, Russell paid Listman $1000 per trip in addition to methamphetamine.

Starting in September 2008, the offices of the United States Department of Justice Drug Enforcement Agency (DEA) in California and in Arkansas began investigating the Valdovinos drug trafficking organization, surveilling and arresting various participants. During the investigation, the DEA identified Russell as a courier.

On November 21, 2008, California Highway Patrol Officer Anthony Cichella, acting on DEA information relayed to him from an area police department, stopped a gray Toyota Corolla traveling westbound on Interstate 10 near Fontana, California. Russell was driving the vehicle and Listman was a passenger. Russell consented to a search of the vehicle. With a drug dog’s assistance, Officer Cichella discovered a trap over a modified compartment under the rear bench seat. The trap contained a crystalline residue, which Officer Cichella believed to be methamphetamine.

During the encounter, Officer Cichella observed Listman was fidgety, moody, easily agitated, and at times uncooperative. 429*429 This led Officer Cichella to conclude Listman “was definitely under the influence.” Officer Cichella did not conduct a field sobriety test and did not arrest Listman for being under the influence of a controlled substance. Officer Cichella took both Russell and Listman to the police station and seized the Corolla.

B. Prior Proceedings

A federal grand jury charged Listman with conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.[4] Listman moved to suppress evidence of Officer Cichella’s discovery of the trap, arguing the stop and search violated his Fourth Amendment rights. Alternatively, Listman moved in limine to exclude evidence of the trap, contending “testimony that he was a passenger in a vehicle which contained a hidden compartment which police suspected of being used to transport drugs would unduly prejudice his defense.” The district court denied both motions.

A three-day jury trial began on January 19, 2010. Law enforcement officers and four co-conspirators, including Russell, testified for the government. At trial, Listman objected to Officer Cichella’s observation that Listman was under the influence of drugs during the traffic stop, arguing Listman’s drug use was not relevant. The district court ultimately found the evidence admissible because “although [Listman’s] personal use of methamphetamine does not lead to the conclusion that he must have been involved in a conspiracy, it does show … that methamphetamine was … in his presence … [a]nd … would indicate he had some knowledge.” At Listman’s request, the court instructed the jury “if you believe … Listman used methamphetamine … you may not just from that alone conclude that he was involved in a conspiracy … to possess with intent to distribute.”

At the close of the government’s case, the district court denied Listman’s Fed. R.Crim.P. 29 motion for a judgment of acquittal. Listman testified in his own defense. Before closing arguments, Listman objected to the district court’s inclusion of a deliberate ignorance jury instruction. The district court overruled the objection and included the instruction. The jury found Listman guilty. Listman appeals.

II. DISCUSSION

A. Sufficiency of the Evidence

Listman claims the evidence supporting his conviction was insufficient. We “review[] sufficiency of the evidence de novo and reverse[] only if no reasonable jury could have found the defendant guilty.” Clay, 618 F.3d at 950. We must sustain a conviction when the evidence, viewed most favorably to the government, substantially supports the verdict. See id.

To convict Listman of conspiracy to distribute methamphetamine, “the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute [methamphetamine]; (2) that [Listman] knew of the conspiracy; and (3) that [Listman] intentionally joined the conspiracy.” United States v. Rolon-Ramos, 502 F.3d 750, 754 (8th Cir.2007) (quoting United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir.2007)) (internal quotation marks omitted). Listman concedes there was a conspiracy, but argues the government failed 430*430 to prove he knew of or intentionally joined the conspiracy.

The evidence was sufficient for the jury to conclude Listman knew he was transporting methamphetamine. Russell testified she told Listman they were transporting drugs, and it was the jury’s prerogative to believe her. “The jury is the final arbiter of the witnesses’ credibility, and we will not disturb that assessment.” United States v. Hayes, 391 F.3d 958, 961 (8th Cir.2004). The government also produced circumstantial evidence—such as Russell paying Listman cash and methamphetamine, and Russell and Listman using methamphetamine together during the trip—supporting an inference Listman knew he was transporting drugs.

Listman argues “a person who is caught driving a car full of drugs does not possess them in a legal sense if he did not know what he had.” See United States v. Mendoza-Larios, 416 F.3d 872, 873-74 (8th Cir.2005) (noting legal possession could not be inferred based solely on the defendant driving a car containing large quantities of hidden illegal drugs). This proposition, while true, is inapplicable here because the jury heard direct and circumstantial evidence demonstrating Listman knew he was transporting methamphetamine. See United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir.1994) (holding direct and circumstantial evidence supported finding driver was aware of the presence of drugs within the vehicle). It is not necessary to prove Listman knew exactly where in the vehicle the drugs were hidden.

B. Motion in Limine

Listman argues “the trial court erred in denying Listman’s motion in limine and objections at trial” to Officer Cichella’s testimony regarding the vehicle stop. Specifically, Listman challenges Officer Cichella’s testimony regarding the existence of the hidden trap and his assessment that Listman was under the influence of drugs.

“We review the district court’s evidentiary ruling for clear abuse of discretion, and will not reverse if the error was harmless.” United States v. Hyles, 479 F.3d 958, 968 (8th Cir.2007) (internal citation omitted). “The trial court has broad discretion in determining the relevancy and admissibility of evidence” and “great deference is given to a district court’s balancing of the relative value of a piece of evidence and its prejudicial effect.” United States v. Zierke, 618 F.3d 755, 759 (8th Cir.2010) (quoting Jiminez, 487 F.3d at 1145) (internal quotation marks omitted); see also United States v. Emmanuel, 112 F.3d 977, 979 (8th Cir. 1997) (“The district court’s discretion is particularly broad in the context of a conspiracy trial.”)

We perceive no reversible error here. The very existence of the hidden trap was probative as to whether Listman participated in the conspiracy and the danger of unfair prejudice, if any, did not substantially outweigh this probative value. See Fed.R.Evid. 403. “[E]vidence is not unfairly prejudicial merely because it tends to prove a defendant’s guilt.” United States v. Boesen, 541 F.3d 838, 849 (8th Cir.2008).

Neither are we persuaded the admission of Officer Cichella’s assessment that Listman was under the influence of drugs was an abuse of discretion. The district court found this assertion probative of Listman’s knowledge that he was transporting methamphetamine. The officer’s assessment also corroborated Russell’s testimony that Russell and Listman discussed methamphetamine, Russell paid Listman, in part, with methamphetamine, and they used methamphetamine during the trips. Considering the court’s accompanying 431*431 cautionary instruction that the jury could not conclude Listman was involved in the conspiracy based solely upon Listman’s use of drugs, we find no abuse of discretion. See United States v. Davidson, 449 F.3d 849, 853 (8th Cir.2006) (noting a cautionary instruction to the jury diminished the risk of unfair prejudice to the defendant). Regardless, any error was harmless. It is difficult to imagine the challenged evidence substantially influenced the verdict, see United States v. Donnell, 596 F.3d 913, 919 (8th Cir.2010), particularly because Listman admitted he often used methamphetamine with Russell, and on at least one occasion during their trips to Arkansas, Russell started to smoke methamphetamine.

C. Jury Instruction

Listman argues the district court erred in instructing the jury on a theory of deliberate ignorance consistent with Eighth Circuit Model Criminal Jury Instruction 7.04 (2007), contending “there is absolutely no evidence that Listman deliberately avoided learning about the drug conspiracy.” We disagree.

We review the inclusion of a jury instruction for an abuse of discretion and consider whether any error was harmless. See United States v. Hernandez-Mendoza, 600 F.3d 971, 979 (8th Cir.2010). “A deliberate ignorance instruction is appropriate when the evidence is sufficient to support a jury’s conclusion that `the defendant had either actual knowledge of the illegal activity or deliberately failed to inquire about it before taking action to support the activity.'” Id. (quoting United States v. Whitehill, 532 F.3d 746, 751 (8th Cir.2008)). “Ignorance is deliberate if the defendants were presented with facts putting them on notice criminal activity was particularly likely and yet intentionally failed to investigate.” Whitehill, 532 F.3d at 751. It is “not appropriate if the evidence implies defendants could only have had `either actual knowledge or no knowledge of the facts in question.'” Id. (quoting United States v. Parker, 364 F.3d 934, 946 (8th Cir.2004)).

As discussed above, Russell’s testimony and other evidence supported a conclusion Listman knew he was transporting methamphetamine. The jury could have disbelieved Russell and still concluded Listman knew it was likely he was transporting drugs and chose to remain ignorant. Listman contends, “There is no reason to believe that a methamphetamine user like [Listman] could conduct an investigation worthy of Sherlock Holmes and discover the existence of a multi-level conspiracy to transport methamphetamine.” To the contrary, we deduce it is elementary that someone recruited to drive across the country on multiple occasions in exchange for cash and drugs would suspect criminal activity was afoot. Listman’s own testimony that he wondered whether Russell had methamphetamine on her “[b]ecause she used so much more [methamphetamine] than anyone [Listman had] known before” is strong evidence Listman had some notice. The deliberate ignorance instruction was appropriate, and giving the instruction was not an abuse of discretion.

III. CONCLUSION

We affirm the judgment of the district court.

[1] The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.

[2] “We recite the facts in the light most favorable to the jury’s verdict[].” United States v. Clay, 618 F.3d 946, 948 n. 2 (8th Cir.2010) (quoting White v. McKinley, 605 F.3d 525, 528 (8th Cir.2010)) (internal quotation marks omitted).

[3] Listman did not return with Russell on the first trip, opting instead to fly home to California.

[4] This indictment superseded an already existing indictment against other participants in the conspiracy. In January 2010, a grand jury returned a second superseding indictment, charging Listman with the same crime.

Happy Mother’s Day – listen to your mother, always leave the house in clean underwear

This guy clearly forgot to listen to mom’s advice:

Manatee sheriff: Man says cocaine in his buttocks isn’t his
Published: October 1, 2010
By PARADISE AFSHAR — pafshar@bradenton.com
MANATEE — A search of a 25-year-old man following a traffic stop Wednesday morning revealed one bag of marijuana and one bag of cocaine in the driver’s buttocks, according to the Manatee County Sheriff’s Office. The driver said only the marijuana belonged to him.
Raymond Stanley Roberts was pulled over at 8:40 a.m. in the 500 block of 63rd Avenue East. Approaching the Hyundai, deputies said they could smell a strong odor of marijuana coming from the vehicle, according to the report.
After writing a speeding ticket, one of the deputies asked Roberts if he smoked marijuana and when had he done it last. According to the arrest report, Roberts replied that he smoked the night before and there was nothing in the car. He then told the two deputies to search the car.
While searching Roberts’ person, deputies felt a soft object in his buttocks. The report said Roberts then said, “Let me get it,” and pulled out a clear plastic bag of marijuana weighing 4.5 grams.
He was then asked if he was holding anything else, and Roberts said no.
Deputies then felt another soft object in the same area and pulled it out through the exterior of Roberts’ shorts. The object was a bag with 27 pieces of rock cocaine weighing 3.5 grams, the report stated.
When the bag fell to the ground, Roberts immediately said, according to the report, “The white stuff is not mine, but the weed is.” He then stated that his friend had borrowed the vehicle before and he saw the cocaine on the passenger seat when he was pulled over.
Roberts has been charged with possession of rock cocaine and marijuana. He was released Wednesday from Manatee County jail after posting a $1,120 bond.

Read more here: http://www.bradenton.com/2010/10/01/2619858/police-man-claims-cocaine-found.html#storylink=cpy

When a misdemeanor in State Court might be a Felony in Federal Court

What may be considered a misdemeanor in State court may not be considered as such in Federal Court. Client’s are often shocked when they learn that offenses they thought were minor in State Court have a dramatic effect when sentenced in Federal Court. In the Case of United States v. Coleman, a misdemeanor conviction in State Court turned out to be a considered a felony for sentencing purposes in Federal Court and gave the Defendant a career offender status.

If would like to read more on this case, please see the summary and complete decision posted below. See the rest of my site to see how I can help your situation.

UNITED STATES v. COLEMAN (3-30-2011)

Fact Summary:

Defendant Coleman appealed his sentence for heroin possession and distribution conviction after entering a guilty plea. At sentencing, Defendant Coleman received an enhancement for a State misdemeanor offense that he believed should not have been counted as a qualifying felony under the career offender Sentencing Guidelines.

Defendant Coleman argued that the Sentencing Commission exceeded its statutory authority by not using the “violent felony” convictions definition from Armed Career Criminal Act.

The Federal Court of Appeals Ruled that Congress did not tell Commission how to define “felony” in setting higher Guidelines range for certain felony recidivists. The Federal Court of Appeals found there was a presumption of reasonableness to sentence in middle of Guidelines range and affirmed the Sentence.

Below is the Complete Decision

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1498
___________
United States of America, * Appellee, *Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Herbert Lee Coleman, *
*
Appellant. *
___________
Submitted: October 18, 2010
Filed: March 30, 2011
___________
Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.Herbert Lee Coleman appeals from his sentence of 170 months imprisonment imposed after his conviction for conspiracy
to distribute heroin and distribution of heroin. See 21 U.S.C. §§ 841, 846. Coleman contends the district court procedurally erred and imposed an unreasonable sentence. We affirm.

Coleman pled guilty. At his sentencing hearing, the district court calculated a base offense level of 26 and a criminal history category of III. The district court applied the career offender enhancements contained in the United States Sentencing Coleman professes to challenge the career offender Guidelines definition of felony on substantive reasonableness grounds
. Because Coleman effectively argues that the district court incorrectly app
lied the career offender Guidelines range, we construe his argument as one
of procedural error. See United States v. Feemster , 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (describing how procedural error includes
improper application of the Guidelines).
-2-
Guidelines section 4B1.1 and increased Coleman’s offense level to 32 and his criminal history category to VI. The district court subtracted three offense levels for acceptance of responsibility. With an offense level of 29 and a criminal history category of VI, Coleman’s Guidelines range was 151 to 188 months imprisonment. The district court sentenced Coleman to 170 months imprisonment. Coleman argues that the district court erred by treating Coleman’s state misdemeanor conviction that was punishable by imprisonment for less than two years as a qualifying felony under the career offender Sentencing Guidelines.

Acknowledging that the district court correctly applied the definition of “prior felonyconviction” contained in section 4B1.2 of the Sentencing Guidelines, Coleman contends the Sentencing Commission exceeded
its statutory mandate in section 4B1.2 by not using the definition for qualifying “violent felony” convictions from the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B).

According to Coleman, if the Sentencing Commission had given “prior
felony conviction” the definition of “violent felony” from the ACCA, his misdemeanor conviction is not a qualifying felony because “violent felony” only includes state misdemeanor convictions punishable by imprisonment for more than two years. We review the district court’s application of the Sentencing Guidelines de novo. United States v. Daniels, 625 F.3d
529, 534 (8th Cir. 2010).

We conclude that the Sentencing Commission acted well within its statutory
authority in defining “prior felony conviction” for purposes of the career offender Guidelines differently than “violent felony” under the ACCA. Congress directed the Sentencing Commission to set higher Guidelines ranges for certain felony recidivists, 28 U.S.C. § 994(h), but did not specify how the Commission should define “felony.”

Accordingly, the Commission was free to define “prior felony conviction” for purposes of the career offender Guidelines as an “adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year.”United States Sentencing Commission, Guidelines Manual, §4B1.2, comment. (n.1). Although Coleman is right that the definitions of certain terms in section 4B1.2 andthe Armed Career Criminal Act are used interchangeably, United States v. Craig, 630 F.3d 717, 723 (8th Cir. 2011), there is no basis for concluding that the statutory definitions from the ACCA somehow limit the Sentencing Commission’s statutory authority under section 994(h), United States v. Ross, 613 F.3d 805, 809-10 (8th Cir.
2010) (recognizing distinctions between the definitions in §4B1.1 and §924(e)).

Thus, because the district court correctly applied the definition of a prior felony conviction from section 4B1.2, it properly determined that Coleman should be sentenced as a career offender. Coleman also argues that no presumption of reasonableness applies to a sentence imposed under the career offender Guidelines and that his sentence was substantively unreasonable. Coleman reasons that without the presumption, the district court abused its discretion in not varying downward based on his minor
convictions and the lack of empirical evidence supporting an enhanced sentence for career offenders. We review the substantive reasonableness of a sentence under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “Where, as here, the sentence imposed
is within the advisory guideline range,we accord it a presumption of reasonableness.” United States v. Bauer, 626 F.3d1004, 1010 (8th Cir. 2010).

Coleman complains that the applicable Sentencing Guideline, U.S.S.G. §4B1.1, should not be accorded a presumption of reasonableness because it is the product of congressional direction in the Sentencing Reform Act, 28 U.S.C. § 994(h), not the Sentencing Commission’s application of empirical data and national experience. We apply a presumption of reasonableness to a within-Guidelines-range sentence because it “recognizes the real-world circumstance that when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.” Rita v. United States, 551 U.S. 338, 350-51 (2007). We have extended this logic to Guideline sections that are “the product of congressional direction rather than the empirical approach described by Rita” because “where a sentencing judge agrees with Congress, then the resulting sentence is also probably within the range of reasonableness.” United States v. Kiderlen, 569 F.3d 58, 369 (8th Cir. 2009)(discussing U.S.S.G. §2G2.2).

Although the presumption of reasonableness applies, even without it we easily conclude that the district court selected a reasonable sentence. In selecting Coleman’s sentence, the district court explained that it had considered all of the factors in section 3553(a), cited Coleman’s complete lack of gainful employment, and took note of Coleman’s cooperation upon arrest. The district court disagreed with Coleman’s description of his criminal history as minor and instead characterized it as extensive and justifying the career offender enhancement. The district court found that a substantial sentence was necessary to afford adequate deterrence, to protect the public, to avoid unwarranted sentencing disparities, and to further the congressional intent of severely sentencing career offenders. It concluded, “[T]he Guideline sentencing system adequately addresses the circumstances of this defendant and the sentencing range is reasonable.” The district court permissibly exercised its discretion to select a sentence in the middle of the advisory Guidelines range.

Finally, Coleman’s argument that the career offender Guidelines are unsupported by empirical evidence is not an issue of substantive reasonableness and not properly made to this court.United States v. Talamantes , 620 F.3d 901, 902 (8thCir. 2010). To the extent the district court could have varied from the career offender Guidelines based on a policy disagreement, Spears v. United States, 129 S. Ct. 840, 843-44 (2009), it was not required to do so, Talamantes, 620 F.3d at 902.

Accordingly, we affirm the judgment of the district court.

Drug Check Point Ahead

Exiting off the Interstate after a Drug Check Point sign is not probable Cause to Stop a Motor Vehicle.

In Federal Court the Federal Magistrate handles the preliminary issues before trial such as detention and evidentiary suppression issues. After a hearing, where testimony may be taken, the Federal Magistrate then makes a report and recommendations to the Federal District Court Judge as to what the outcomes should be according to the Federal Magistrate. After this Report and Recommendation, the Parties may make written objections. The Federal District Court then makes a Decision on whether to accept the Report and Recommendations or Reject these. After trial, if properly preserved, these issues may then be appealed to the Federal Court of Appeals.

In the following case, officers set up a fake checkpoint. This checkpoint did not actually exist. Instead, the officers put up a sign warning drivers that a checkpoint for drugs existed ahead. This sign was put up just before an exit off the Interstate. When a driver exited the Interstate, the officers made a presumption that the car might have drugs in it.

This case is important for two reasons, although the officers were correct as it relates to this car – there were drugs in the car – the idea that an officer, or government official, can stop a citizen without probable cause of a crime is simply illegal. Citizens are presumed innocent. The government can’t invade the citizen’s expectation of privacy to proceed in life without government involvement unless the government (police officer) has probable cause that a crime is being committed. Simply exiting the road after a sign saying checkpoint ahead, does not establish the objective facts necessary for a reasonable belief that the person is committing a crime.

The second reason is that this case shows that the government bears the burden, responsibility, for establishing the proper and objective facts that would allow them to invade the Constitutional Rights of a citizen – including a citizen that may be committing a crime. The Constitution does not look to the ends to determine if the Officer was correct, but looks to the means used to arrive at the ends.

United States v. Ronald Prokupek and United States v. Christine App. from Dist. of Neb.

Fact Summary:

Officers set up a fake drug checkpoint on United States Interstate 80 going through Nebreska. Officers set up a sign that said there was a drug checkpoint ahead. The State Troopers then stationed themselves at the next exit after the sign.

Defendants Prokupek and McGlothen took that next exit after the sign and turned on to a country road. The Troopers, on dash cam, stated they stopped the car for failing to signal for a lane change when it exited the highway.

After the stop, a drug dog arrived a few minutes later. The Dog walked around car several times and alerted near driver’s door window. Officers searched the Defendant’s vehicle and found 151 grams of methamphetamine in the center armrest compartment.

Defendants Prokupek and McGlothen were subsequently charged with Possession With Intent to Distribute methamphetamine. Defendants Prokupek and McGlothen filed a motion to suppress the evidence found in the motor vehicle alleging the stop lacked probable cause and the drug dog’s actions did not provide probable cause because the dog was not properly trained and did not provide sufficient indication drugs were present.

At the suppression hearing, the officers testified that the probable cause for the stop of Defendant’s vehicle was the failure to signal the turn onto the country road. Defendant Prokupek’s then had a chance to cross-examine the officer. During the cross examination, the Officer admitted that he did not see the car pull off highway. However, the Magistrate found the Trooper’s testimony about the failure to use a turn signal credible and denied motion.

Both Defendant Prokupek and Defendant McGolothen objected to the Magistrate’s Report and Recommendation saying officer’s testimony was not credible. The Federal District Court adopted the Magistrate’s Report and Recommendation, but
did not adopt the finding that there was a failure to signal onto country road.

Defendant Prokupek and Defendant McGlothen subsequently entered conditional pleas of guilty allowing them to appeal The Federal District’s Decision not to suppress the evidence. Defendant Prokupek was sentenced to 60 months and Defendant McGlothen was sentenced to 18 months.

Defendant Prokupek and McGlothen appealed the denial of their suppression issues. At oral argument, the Government conceded that probable cause could not be based on any failure to signal the exit from interstate on to the exit ramp because the officer who made the stop did not see car.

The Federal Court of Appeals remanded this issue to the Federal District Court to “clarify its finding that Prokupek failed to signal at one of the two described places.” The Government filed a motion to reopen the suppression hearing and allow for additional testimony. The Federal District Court denied the Government’s motion and then entered the finding that the officer’s testimony that they stopped the car because it failed to signal a turn onto the country road credible. The Federal District Court also found that the officer’s “Videotaped statement” was an “unintentional misstatement.” The Federal Court of Appeals then made the following Decision:

Issues:

(1) Probable Cause for the Car Stop

a. Prokupek and McGlothen argued

1. The Finding that the traffic violation occurred is clearly
erroneous based upon the officer’s testimony.

2. The Statement that the driver failed to signal his turn on to a country road is
contradicted by dash cam.

a. The 8th Circuit Federal Court of Appeals noted:

1. The Court has previously held that reasonable suspicion for a traffic
stop cannot be based solely on fact that a driver exits an interstate after
seeing a sign indicating that a drug checkpoint lies ahead — U.S. v. Carpenter (8th Cir. 2006);

2. However, a traffic stop pursuant to a ruse checkpoint
does not violate the 4th Amendment of the Constitution if the driver commits traffic violation when exiting interstate.

3. The Court agrees that the officer’s statements are contradictory in this case.

a. There is no evidence in record that supports finding that
this is unintentional misstatement. That burden lies with the government.

b. Therefore, the Finding that the driver failed to signal turning onto the exit is clearly erroneous.

c. For the same reasons, the Finding that the driver failed to signal onto a country road is also clearly erroneous.

d. The Evidence is suppressed.