No pepper emergency in drug stop

A Terry stop happens when the police search your person on the street based on the "reasonable suspicion" that criminal activity is afoot. That's a low standard for the police to satisfy, but if you're arrested following a Terry stop, you will probably ask the judge to rule that the police exceeded their authority and that the fruits of the unlawful search -- usually drugs or a gun -- should be suppressed. That's what this guy did. But the Second Circuit says the stop was legal.

The case is U.S. v. Compton, decided on July 19. Compton was driving near the Canadian board, where the police had set up a checkpoint. Compton slowed down his SUV as he approached the checkpoint and abruptly veered into a the driveway of a vegetable stand. Compton and his brother then got out of the vehicle and each bought a pint of peppers. And by peppers, I mean the kind that grow in the ground. A police officer heard about Compton's maneuverings and peered into the SUV. He saw a blanket in the back that looked like it was concealing something. The police then got out the drug-sniffing dog, which found 145 pounds of marijuana in duffle bags. Was this warrant-less search legal? It was.

In determining whether a Terry stop is legal, we look at the totality of the circumstances. Beware of the totality of the circumstances test. It means the court can emphasize one fact over another or just look at the "big picture" in reaching a conclusion. With tests like this, we know lawfulness or unlawfulness when we see it. Here, the officer's suspicion was legitimate because (1) Compton avoided the checkpoint, (2) the checkpoint was near the border and (3) the brothers attempted to conceal the avoidance in a peculiar way.

While avoiding a checkpoint is usually not enough by itself to authorize a Terry stop (as some people simply don't like interacting with the police), we can still consider that factor in the analysis. Proximity to the border is relevant because "national borders uniquely implicate various criminal activities -- including contraband smuggling and illegal entry," according to the Supreme Court. The concealment attempt was also suspicious. As Judge Walker puts it, we consider "the peculiar circumstances surrounding the precipitous pepper purchase." Not the alliteration. If you think the Court is getting cute here, you are correct. The Court writes:

Because Gottschall had already determined that the SUV had made the abrupt turn into the vegetable stand in order to avoid the checkpoint, Gottschall could reasonably interpret the pepper  purchase to be an attempt to conceal that avoidance. He could reasonably discount the probability of an alternate explanation, such as a sudden pepper emergency (such predicaments occur infrequently) or a simple desire to avoid a delay (taking the extra time to park a car and go shopping is hardly consistent with a motorist who avoids a checkpoint because he or she is in a hurry). And he could reasonably be suspicious of individuals who appeared to be taking steps to actively deceive law enforcement.

Moreover, the improbability of a pepper emergency occurring immediately upon the appearance of a border checkpoint rendered the brothers’ ruse even more suspicious. A person who resorts to an odd and poorly conceived concealment measure to avoid contact with law enforcement authorities is more likely to be desperate to avoid detection of unlawful activity.

No one really has a pepper emergency, do they? Unless you are hosting a barbeque, which these guys were not. Which is why the defendant gets nailed on a drug charge.