Tuesday, April 2, 2019

Pro se Vermont plaintiff wins Fourth Amendment appeal

This pro se plaintiff took on the federal government in the Court of Appeals and won. The Second Circuit finds the plaintiff sufficiently alleged the police violated his rights under the Fourth Amendment when they unnecessarily prolonged a traffic stop to look for drugs and search his vehicle.

The case is McLeod v. Mickle, a summary order issued on March 27. Mickle is a special agent for the United States Forest Service. McLeod was pulled over on a traffic stop because of an expired inspection sticker. But then the police kept plaintiff there and began asking about illegal drugs. They called the K-9 unit and performed a "dog sniff" on the car. Plaintiff was not permitted to leave the scene until after the police dog sniffed out the car. This prolonged the stop by 35 to 40 minutes.

The law in this area was clarified a few years ago, when the Supreme Court said in Rodriguez v. United States, 135 S. Ct. 1609 (2015). "Even when a stop is reasonable at its inception, it can violate the Fourth Amendment if it is 'prolonged beyond the time reasonably required to complete that mission.'" While the district court in dismissing the case said plaintiff did not allege the police were not dilatory in issuing the citation, that is not the right focus, the Second Circuit (Sack, Raggi and Carney) says. The right focus is "whether [the officer's] pursuit of an unrelated investigation 'prolonged' McLeod's roadside detention." Here is the reasoning:

Here, McLeod alleges that, shortly after he was stopped and as soon as he conceded that his state inspection sticker was expired, Stokes repeatedly asked McLeod whether his car contained illegal drugs and requested permission to search McLeod’s vehicle. McLeod further alleges that Stokes told him that, if McLeod refused to consent to a search, Stokes would call a K9 unit. When later during the stop McLeod asked two other officers at the scene whether he could leave, they replied (McLeod avers) that they were “waiting for the K9 unit.” Finally, McLeod asserts that he was not permitted to leave until after the K9 unit arrived on scene and the dog sniffed his vehicle approximately 35 to 40 minutes after he was first stopped. These allegations support a reasonable inference that Stokes prolonged the traffic stop beyond the time needed to issue a citation for McLeod’s expired state inspection sticker and that he did so to pursue an unrelated investigation into whether McLeod was carrying illegal drugs in his vehicle. This inference supports McLeod’s Fourth Amendment claim and defeats Stokes’s motion to dismiss.

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