ARIZONA INTERSTATE 8, 10, 17, 19, 40

Law enforcement has arrested individuals traveling on Arizona’s interstate highways transporting large amounts of cocaine, marijuana and methamphetamine for sale. Typically the analysis needed to determine if Defendant’s Fourth Amendment rights were violated prior to Defendant initially appearing before a magistrate is:

1. Was there an articulable suspicion to stop Defendant’s vehicle?

“[P]olice . . . with a reasonable and articulable suspicion that a person is involved in criminal activity may make a limited investigative stop. . . . ‘[T]he . . . officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts . . . warrant . . . intrusion (In Re: Roy L., 1 CA-JV 99-0097, 2000.AZ.0042005 <http://www.versuslaw.com>., paragraph 21 (Ariz.App. 2000).’”

2. Did probable cause develop to continue Defendant’s detention?

In deciding whether police have a basis for suspecting criminal activity, the court looks at the “totality of the circumstances (United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)).”

A traffic stop ends once the officer returns the “driver’s documents with issuance of . . . warning (State v. Box, No. 2 CA-CR 2001-0491 (Ariz. App. Div. 2 08/01/2003)).” The purpose of a traffic stop is to enforce roadway laws “with . . . a citation or a warning. Once the purpose of that stop has been fulfilled . . . continued detention . . . amounts to a second detention (Ferris v. State, 735 A.2d 491, Versuslaw paragraph 48 (Md. 1999)).”

Continued detention is authorized if the totality of the circumstances provides a reasonable suspicion of criminal activity. State v. O’Meara, 198 Ariz. 294 (Ariz. 2000).

3. Was Defendant’s consent to search the vehicle valid?

The state must establish by clear and positive evidence that a consent to search was freely and intelligently given. State v. Wilkerson, 117 Ariz. 143, 144, 571 P.2d 289, 290 (App. 1977).

4. Did the search of the vehicle exceed the scope of Defendant’s consent?

It is well established that “the scope of a consent search is limited by the breadth of the actual consent.” United States v. Garcia, 897 F.2d 1413, 1419 (7th Cir.1990). “[C]onsent to ‘take a look in the vehicle’ does not encompass the further intrusion of ‘tearing a car apart’ by removing the door panels. . . . The removal of the door panel was not within the scope of the search to which defendant consented (State v. Swanson, 838 P.2d 1340, 172 Ariz. 579, 584 (Ariz. App. 1992)).”

5. Was a warrant needed to search Defendant’s vehicle?

“The Fourth Amendment guarantees ‘[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable search and seizures (State v. Adams, 197 Ariz. 569, Versuslaw paragraph 33).’” Police presumptively violate the Fourth Amendment if they act without a warrant (State v. Weekly, 200 Ariz. 421, Versuslaw paragraph 34 (Ariz. App. 2001)).”

“[W]hen . . . arrest occurs long after the defendant had left the vehicle and far from the vehicle, the warrant requirement of the Fourth Amendment applies (State v. Dean, No. CR-02-0427-PR, Versuslaw paragraph 57 (Ariz. 09/17/2003)). See also Thornton v. United States, No. 03-5165 (U.S. 05/24/2004) at Versuslaw paragraph 10. "[A]n arrestee's status as a 'recent occupant' may turn on his temporal or spatial relationship to the car at the time of the arrest and search."

When there is a seizure without a warrant the government has to prove by a preponderance “the lawfulness of the acquisition of the challenged evidence (Rodriquez v. Arellano, 194 Ariz. 211, Versuslaw paragraph 28 (Ariz.App. 1999)).”

The government has to prove exigent circumstances, Coolidge v. New Hampshire, 403 U.S. 443 (1971). ‘“[T]he government bears a heavy burden . . . that exceptional circumstances justified a departure from the normal procedure of obtaining a warrant (United States v. Alvarez, 810 F. 2d 879, Versuslaw paragraph 24 (9th Cir. 1987)).’”