On a Highway to Hell?

This article shares our experience with prosecutions stemming from the annual “highway interdiction operation” conducted by local police on Okeechobee Road set to coincide with the arrival of throngs of young people for the Okeechobee Music Festival. For the many young people netted by officers during traffic stops like baited fish, the final stretch of road approaching the venue of the annual music festival has become a highway to the hell of an arrest for the possession of “recreational” drugs, imprisonment, and the stigma of a criminal record. Public officials are the ones who see the overdoses, notify parents of the deaths of their young adults, and so can easily feel morally justified in committing violations of the Fourth Amendment.

 

Local defense counsel must now operate in a field where many police seizures are constitutionally flawed, as if law enforcement officers have become comfortably numb to violating the right to privacy, deluded that the ends justify the unconstitutional means.

 

                                    Hunting Our Young – A Road to Hell Paved with Police Intentions

 

In 2017, the police hunt for our young led to 99 arrests on drug-related charges. The arrests occur on or in the proximity of Okeechobee Road, the main highway nearest to the festival. The police fishing expedition casts a wide net of pretextual stops based on “age profiling.” Three cases defended by our law office (two in 2017 and one in 2020) anecdotally illustrate how Okeechobee Road has become a road to hell paved with police intentions to disregard the Fourth Amendment, as the operation deliberately ignored law prohibiting the unconstitutional prolongation of a traffic stop to stage a “dog sniff” in all three prosecutions.

 

The prosecution for the possession of four “ecstasy” (MDMA) capsules

 

On March 3, 2017, 4 girls and 2 boys, all in their late teens or in their early 20s, were traveling on Okeechobee Road. Defendant was driving his mother’s vehicle when an officer stopped him for an ostensible failure to maintain a single lane in violation of Fla. Stat. § 316.089 (“driving on roadways laned for traffic”).

 

 The officer fabricated probable cause to stop the car and detained our client and his passengers without reasonable suspicion beyond the time needed to issue a “warning” just to conduct a dog sniff of the exterior of the car followed by an interior search after the canine “alerted on cue” to the trunk of the vehicle (where no contraband was found). The alleged MDMA capsules were found inside of a wallet in the front center console.

The bare allegation that defendant failed to maintain a single lane did not state a violation of § 316.089, as his driving did not create a safety concern. See Hurd v. State, 958 So.2d 600, 603 (Fla. 4^th DCA 2007) (failure to maintain lane did not provide probable cause for traffic stop, when the action was done safely). All 6 youths were ordered to produce identification and to exit the car. All 4 girls were subjected to frisks without any reason to believe that the girls were armed or dangerous.

The prolongation of the detention by 10 to 15 minutes for a dog sniff merely based on defendant’s nervousness and his appearance was unconstitutional. See A.N.H. v. State, 832 So.2d 170, 172 (Fla. 3^rd DCA 2002) (explaining that a juvenile’s bloodshot eyes and the observation that he “was not himself” could “result from a variety of non-criminal circumstances, including the appearance and behavior associated with a common cold” and concluding that juvenile’s “physical state was consistent with innocence, and thus could not give rise to reasonable grounds to suspect that he was involved in some criminal activity”). No reasonable suspicion existed to prolong the seizure, and a stop cannot last longer than the time it takes to write the citation or warning. See Cresswell v. State, 564 So.2d 480, 481-482 (Fla.1990) (citing State v. Anderson, 479 So.2d 816, 818 (Fla. 4^th DCA 1985)); Rodriguez v. United States, 135 S.Ct. 1609, 1614-1615 (2015).

In Jones v. State, 187 So.3d 346, 347 (Fla. 4^th DCA 2016), the Court noted that Rodriguez “eliminates any ambiguity about the reasonableness of the time required for the officer to complete a traffic stop.” See id. at 347-48 (three (3) minute prolongation of stop for dog sniff unconstitutional) (reversing 19th Circuit decision); Underhill v. State, 197 So. 3d 90 (Fla. 4th DCA 2016) (trial court erred in denying motion to suppress evidence recovered during stop because officer unconstitutionally prolonged stop by interrupting it to stage dog sniff) (reversing 19th Circuit decision). The controlling law was repeatedly ignored during the “highway interdiction operation” profiling and targeting our young. 

The prosecution for the possession of drugs in personal use amounts and for the possession of a pipe with marijuana residue

 Another young defendant and three young friends were ensnared by the operation while traveling on Okeechobee Road during the afternoon of March 3, 2017. Defendant was a passenger in a car stopped for an expired Michigan auto tag. Officers approached the vehicle and ordered all passengers to produce their identification and exit the vehicle. The defendant and his friends exited the vehicle and were directed toward a grassy area. A “warning” was issued at 1:46 p.m. The defendant did not dispute the validity of the traffic stop, but he was detained without reasonable suspicion beyond the time it took to issue the warning in order to allow a canine sniff. The warning had already been issued before the dog arrived at 1:50 p.m., so the prolongation of the detention failed to pass constitutional muster. See Jones, supra (three (3) minute prolongation unconstitutional).

 

The dog alert netted the seizure of 19 grams of marijuana, two LSD tabs, 2 grams of MDMA (“ecstasy”) from within the defendant’s pants, 2 grams of cocaine, and a pipe with marijuana residue. The arrest affidavit evidenced that the defendant acquiesced to the display of authority after the dog “alerted” and its handler Mirandized the defendant and his friends, as if an arrest was a fait accompli after the dog “alerted.” In E.J. v. State, 40 So.3d 922, 924 (Fla. 4th DCA 2010), it was held that a juvenile, who was a passenger in a stopped car did not voluntarily consent to a search of her person, but had merely acquiesced to the officers’ authority. The young man ensnared by the police operation stood in the same shoes as the juvenile in E.J., as any consent to a search within his pants was mere acquiescence to the display of police authority.

 

The prolongation of the detention for a dog sniff was unconstitutional as there was no reasonable suspicion based on articulable facts that criminal activity “may be afoot.” See Terry v. Ohio, 392 U.S. 1, 30 (1968). The seized evidence was subject to suppression. See Jones, supra. The officers lacked founded suspicion that any of the vehicle occupants were involved in criminal activity, as the officers only observed that “they appeared nervous” and declined a search. See Dukes v. State, 753 So.2d 780, 781 (Fla. 5^th DCA 2000) (rejecting alternative state argument that Dukes exhibited suspicious behavior as she appeared nervous, was from Georgia, and only bought $3.00 worth of gas at station where stopped). No reasonable suspicion existed to prolong the detention of any of the young passengers to await a canine sniff.

Another case for simple drug possession and a vape pen with marijuana residue

           Our office defended another young defendant ensnared by the same operation on Okeechobee Road in March 2020. Defendant was driving alone when he was ostensibly stopped for excessively tinted windows. The officer approached defendant and ordered him to produce his driver’s license and exit the vehicle. The officer directed him toward the back of his vehicle where he then proceeded to badger him regarding his nervousness.

 

The officer never even issued a citation or warning for the alleged excessive tint, but prolonged the stop to stage a dog sniff. The officer justified prolonging the detention based only on the defendant’s nervousness. But see Dukes, supra (nervousness does not support a reasonable suspicion of criminal activity). After several passes around the car, the canine “alerted.” The search of the defendant’s vehicle and his person resulted in the seizure of six LSD tabs, one gram of cocaine, and a vape pen with marijuana residue. Defendant did not dispute the validity of the stop, but he was detained without reasonable suspicion beyond the time it would have taken the officer to issue a warning or citation so that a dog sniff could be staged. The prolongation of the police detention failed to pass constitutional muster under Jones, supra (three (3) minute prolongation for dog sniff was unconstitutional). While the unconstitutional error was corrected by a “nolle prosequi” after the State considered the motion to suppress submitted by our law office, these local festival cases evince a clear pattern of deliberate indifference by police to binding caselaw holding that prolongation of a stop for a dog sniff violates the Fourth Amendment. Indeed, the only Fourth District cases prohibiting the unconstitutional prolongation of detention for dog sniffs stem from the Nineteengh Judicial Circuit, where the interdiction operation prolonged stops for sniffs on all three cases defended by our office, “the law be damned!” See Jones, supra (reversing Nineteenth Circuit decision); Underhill, supra (same).

“Age Profiling” is Unconstitutional Guesswork

 

The police swarm Okeechobee Road in a massive display of authority to unnerve the young targets, and the “age profiling” of the operation is unconstitutional guesswork. “[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” See Sanchez v. State, 199 So.3d 472, 475 (Fla. 4^th DCA 2016). In Doe v. State, 973 So.2d 682, 683 (Fla. 4th DCA 2008), the Fourth District concluded that a defendant driving away from an area known for drug dealing did not raise a reasonable suspicion of criminal activity to justify a traffic stop. Even if the local festival is an event known for youthful recreational drug use, that is not enough to justify embarking on a police search and destroy the 4th Amendment mission by staging a series of textbook pretextual stops. “Mere suspicion is no better than random selection, sheer guesswork, or hunch, and has no objective justification.” State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4^th DCA 1978). Local police officers have organized an annual hunt based on the “sheer guesswork, or hunch” that many young attendees of the festival come with supplied to get high, “like shooting fish in a barrel!”

 

 

A Somber Concern: Retrain Police to Stop Gorging on Fruit of the Poisonous Tree

 

Local officers have developed a custom or practice of deliberate indifference to federal and state constitutional rights. Charges based on evidence seized in violation of the Fourth Amendment, i.e., “fruit of the poisonous tree,” see Wong Sun v. United States, 371 U.S. 471 (1963), are filed with great frequency, suggesting that state administrators lack the resources or the will to scrutinize the methods used by officers to seize evidence before filing criminal charges. Police will gorge on fruit of the poisonous tree as long as the State “underwrites” a local police practice of violating the Fourth Amendment, as if the ends justify the unconstitutional means. We must re-educate our police about the critical importance of the fundamental constitutional right to privacy.