Tuesday, July 19th, 2016

“Precipitous Pepper Purchase” Precludes Pot Pushers’ Partying


In today’s United States v. Compton, the Second Circuit (Walker, Raggi, Hall, C.JJ.) held a Border Patrol agent had reasonable suspicion to stop Compton and his brother, found to be transporting 145 pounds of marijuana, based on “(1) the brothers’ avoidance of [a Border Patrol] checkpoint, (2) the checkpoint’s proximity to the [Canadian] border, and (3) the brothers’ peculiar attempt to conceal the avoidance.”  The “peculiar attempt” was the brothers’ “abruptly slow[ing] down” when their SUV came within sight of the checkpoint and then “veer[ing] into the U‐shaped driveway of [a] vegetable stand” where they each bought “a pint of peppers.”

“Because [the agent] had already determined that the SUV had made the abrupt turn into the vegetable stand in order to avoid the checkpoint, [he] 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.”

Takeaways for the Defense Bar

1.  The “precipitous pepper purchase” likely did the brothers in, as “[a]voidance of a checkpoint alone is probably insufficient to establish reasonable suspicion,” even when the checkpoint is close to a border (which most Border Patrol checkpoints are).

2.  The subsequent dog sniff, which led to discovery of the marijuana, was lawful only because the agent saw a blanket in the backseat covering items that could have contained drugs and he “conducted the extended investigation with reasonable promptness.  He radioed [another agent], who arrived with the canine in under a minute.  The canine sniff that confirmed the presence of narcotics took no more than five minutes.  The Fourth Amendment permits a brief extension of a Terry stop in order to conduct a canine sniff to resolve suspicions enhanced during the initial stop.”

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