Mr. Espino was doing 50 in a 35. A policeman pulled him over. Espino provided his license and registration. The license was valid, registration was valid, and there were no warrants or wants for Espino. However, Espino was a sex registrant. The policeman had recently received information that although Espino was "technically" in compliance with his registration requirements, the police had been unable complete a "face-to-face"verification of his residence. Additionally, a confidential informant had told a fellow officer that Espino was slinging dope. To guild the lily, a citizen riding along with the policeman thought he saw Espino make a "furtive" movement (the dashcam later showed this wasn't true).
The policeman waited until two more officers arrived and then ordered Espino out of the car. Espino got out and because he was fidgety and nervous, the police asked him for permission to search his pockets. Espino consented and the police found a small crystalline object in his pocket. Using their training and experience, they determined the item to be crack cocaine. Espino was cuffed because the police thought he had committed a felony. After a minute of expert visual analysis, the policeman realized the item was a diamond.
By this time Espino had been ordered to sit on the ground, still in handcuffs. The police now asked him for permission to search his car, which he provided. Inside the car was some meth, a scale, and plastic baggies. Based on this contraband, the police obtained a search warrant for Espino's home which turned up a pistol.
Espino moved to suppress the meth, scale, baggies, and gun. The trial court denied the motion. Espino then took a deal for two years and eight months in prison. He appealed.
The Sixth District reverses, holding that Espino's consent was not voluntary as it was given while he was the subject of an unlawful arrest.
It should be said that whether or not you agree with the result, this panel knows how to conduct a proper Fourth Amendment analysis, unlike some in the Third District. The initial detention here is fine as Espino was speeding. The first real issue arises when the policeman prolongs the stop (Espino's license and registration were in order) to investigate the registration and drug suspicions. Espino argues there was no reasonable suspicion of either of these to justify waiting for additional officers. The panel disagrees, finding that while each individual fact alone doesn't amount to reasonable suspicion, taking them together satisfies the bill.
The next issue is whether, after finding the diamond, Espino was arrested. The panel answers "yes". The State argues that handcuffing alone does not always constitute an arrest. This is true. But what the State fails to mention is that handcuffing does not constitute an arrest when it is reasonably necessary to safely effect a Terry stop. Here it was not; Espino posed no threat and the police outnumbered him three to one. Since handcuffing was not reasonably necessary to conduct a Terry stop, it was an arrest.
The arrest was legal at its inception since the police thought they found crack cocaine. However, once the police realized it was a diamond, the arrest became unlawful. Instead of uncuffing Espino after they realized their mistake, the police continued to grill him and asked him for his consent to search the car. Because the consent was given during this illegal arrest, it was involuntary. There is no good faith because the police admitted they knew the item wasn't anything illegal.
The best part about this opinion is that the panel puts the kibosh on a ridiculous argument the State has been advancing for years. The argument is as follows: a driver stopped for speeding may be arrested for that offense without violating the Fourth Amendment; therefore, even if the driver is not arrested for speeding, any subsequent prolonged detention, arrest upon another crime for which there is no probable cause, or other unjustified detentions are just fine because the police could have arrested the driver for speeding at the outset. In other words, because a policeman could, without violating the Fourth Amendment, arrest a speeder, taken him to jail, strip-search him, and hold him in jail for 48 hours before taking him before a magistrate, any less intrusive seizure for another offense, even if legally unjustified, must also not violate the Fourth Amendment.
The panel points to the recent United States Supreme Court's decision in Rodriguez v. United States (2015) 135 S.Ct. 1609. Rodriguez was pulled over for a traffic violation. After writing out a warning, the police continued to detain him until they could get a drug dog to the scene. The High Court held that the detention was unreasonably prolonged as there was no reasonable suspicion to justify a continued detention after the warning was issued. Our panel adroitly points out that the reasoning in Rodriguez makes no sense if it accepts the reasoning of Ms. Harris' minions.
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