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Court of Appeal:
Traffic Stop Was Pretext for Summoning Dog Who Sniffed for Drugs, Invalidating Search
By a MetNews Staff Writer
The Sixth District Court of Appeal has sent a message to law enforcement that if a person suspected of transporting contraband is stopped based on actual traffic offenses, the officers need to diligently act on those offenses while speedily summoning a unit with a trained sniffing police dog.
It reversed Ernesto Ayon’s conviction on five drug counts pursuant to his no-contrest plea, a plea that took place after his suppression motion was denied. That motion should have been granted, Presiding Justice Mary J. Greenwood declared in her opinion, filed Wednesday, because a search of Ayon’s vehicle, which unveiled the presence of drugs and $16,200 in cash, took place based on an “alert” by a dog that occurred past the time when a ticket for a driving offense would, in normal course, have been handed to the motorist.
She explained that San Jose police pulled Ayon over based on infractions they had witnessed yet, “[a]t no point…did any officer begin writing a traffic citation,” evidencing that “the stop was actually part of a preexisting drug investigation, and the police used the traffic infractions as pretext for the stop.”
Detention Unlawfully Prolonged
Greenwood elaborated:
“While that fact does not by itself render the search unconstitutional, based on the evidence in the record viewed objectively—including police body camera videos of the stop—we hold the police unlawfully prolonged the traffic stop.”
The presiding justice wrote:
“It is well-established that an alert by a narcotics dog gives rise to probable cause for a vehicle search….Accordingly, the relevant time frame started from the point at which the car was first pulled over and ended once the dog alerted to the presence of drugs in the car. The issue is whether police diligently pursued their investigation of the traffic infractions during that time….[T]hey did not.”
At about eight minutes after the stop, an officer radioed for a “narco dog”; such a dog arrived at the scene about four minutes and 45 seconds later; dog signaled a perception of the presence of narcotics roughly six minutes after that, and a warrantless search proceeded.
Officer’s Testimony Rejected
An officer testified at the suppression hearing that part of the delay was occasioned by Ayon’s appearance as being under the influence of an intoxicant, resulting in the need for a field sobriety test, and by virtue of his hostile conduct, necessitating a handcuffing of him. Greenwood said that the fact of a preexisting narcotics investigation of Ayon coupled with the body cam evidence “establishes” that the officer’s “testimony about what he observed during the stop was neither reasonable nor credible.”
She thus rejected the credibility determination by the Santa Clara Superior Court judge who conducted the suppression hearing.
Justice Allison M. Danner signed Greenwood’s opinion, as did Justice Adrienne Grover. However, Danner said in a concurring opinion that she disputes the relevance of a narcotics investigation of Ayon being in progress, maintaining that what is dispositive is that the detention exceeded the normal length of writing a traffic ticket.
She wrote that Greenwood’s assertions that the police stopped Ayon to facilitate such an investigation “may well be correct, although they rest on scant evidentiary support in the record” but that, “[m]ore importantly, it is settled that the Fourth Amendment analysis may not turn on an inquiry into an officer’s motivation.”
The case is People v. Ayon, 2022 S.O.S. 2930.
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