In 2007, the Eleventh Circuit Court of Appeals decided the United States v. Virden[i], in which the court examined whether transporting a drug suspect and his vehicle to another location to have a K9 sniff the exterior of the vehicle constituted a seizure that required probable cause.  The relevant facts of Virden are as follows:

On May 4, 2005, police and DEA investigators planned to execute search warrants on nine properties located in Columbus, GA, including a residence on 17th Avenue. These properties were associated with Michael Adams, the target of a year-long drug investigation. In preparation, officers kept the locations under surveillance beginning in March 2005.

On the morning of May 4, a deputy observed a Buick LeSabre exit the garage of the 17th Avenue location. An unmarked police car followed the LeSabre to a gas station, and officers watched the driver as he entered the store and made purchases. Upon the driver’s exit, officers approached him, asking him to remain there so that he could be questioned by another officer. Sergeant Stinson, who had been conducting surveillance at another location, arrived at the gas station, frisked the driver, and obtained the driver’s identification. Sgt. Stinson also advised the driver of the ongoing drug investigation. The driver identified himself as Eric Virden and produced proper identification. Upon questioning, Virden asserted that he had been leaving a girl’s residence on 22nd or 23rd Street, but he also indicated that he was from out of town and not familiar with the area. Officers also learned that the car was a rental vehicle. At the gas station, officers obtained no evidence from Virden that could have alerted them to the presence of drugs. Prior to this date, both Virden and the LeSabre were unknown to the investigation.

While in route to the gas station, Sgt. Stinson had requested that the canine unit meet him at the gas station to perform a drug sniff. While questioning Virden, officers learned that the investigation’s main target, Adams, was nearby, and Stinson could see Adams’ vehicle from where he was located. Worried that Adams would detect their presence, Stinson decided to place Virden in the car to conceal him. Without placing Virden under arrest, the officers placed Virden in handcuffs in the back of the police vehicle. When placing Virden in the police car, Stinson still thought a canine unit would be able to meet him at the gas station. Shortly thereafter, however, he learned that the canine unit was unavailable to meet them because the unit was assisting in the stop of Adams a few miles away on Beaver Trail Road. Sgt. Stinson decided to take Virden‘s vehicle to Beaver Trail so the dog sniff could be performed there. Stinson took Virden‘s keys, and, without Virden‘s consent, drove Virden‘s rental vehicle approximately two miles to the Beaver Trail location. The other officers transported Virden to the Beaver Trail location in the back of the police car.

At Beaver Trail, the trained drug dog performed a sniff, alerting to the trunk and rear passenger compartment. An agent then opened the trunk of the car, where he recovered drugs. Virden was then placed under arrest. Stinson estimated that the entire encounter lasted between 20 and 30 minutes.[ii]

Virden was charged with possession of cocaine and marijuana with intent to distribute under federal law.  He filed a motion to suppress and the district court granted the motion.  The government appealed the grant of the motion to suppress to the Eleventh Circuit Court of Appeals.

The court framed the issue as follows:  First, we determine whether moving the vehicle to Beaver Trail constituted a seizure which required probable cause. If so, we must decide whether there was sufficient probable cause to support a seizure.[iii]

The court of appeals first set out to determine if moving Virden’s vehicle to another location was a seizure that exceeded the bounds of an investigative detention (Terry stop).  This is because the officers had reasonable suspicion, the legal requirement for an investigative detention, to briefly detain Virden and his vehicle, so the court was examining with the officers exceeded the bounds or scope of that detention.

The court noted the relevant legal principles and stated

A seizure occurs when there is a meaningful interference with a person’s possessory interest in property. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85 (1984). The bounds of investigative detention of personal property are defined by the limits applicable to the detention of a person. United States v. Place, 462 U.S. 696, 708-09, 103 S. Ct. 2637, 2645, 77 L. Ed. 2d 110 (1983). UnderTerry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) and its progeny, an investigatory detention can be supported by reasonable suspicion; however, an arrest, i.e. the seizure of a person, must be supported by probable cause. Therefore, the factors used to determine whether a Terry stop has matured into an arrest are also useful in evaluating whether a seizure of property required probable cause. The non-exclusive factors we consider in evaluating the reasonableness of a Terry stop are: “‘[1] the law enforcement purposes served by the detention, [2] the diligence with which the police pursue the investigation, [3] the scope and intrusiveness of the detention, and [4] the duration of the detention.’ ” United States v. Acosta, 363 F.3d 1141, 1146 (11th Cir. 2004) (citations omitted).[iv]

The court also noted that the Supreme Court held, in Hayes v. Florida,[v] that the Fourth Amendment

Line is crossed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.[vi]

In other words, the police violate the Fourth Amendment if they, without probable cause or a warrant, forcibly remove a person from where he is lawfully allowed to be and transport him to the police station.  This is the case even if the detention is brief.  Thus, if the police have only reasonable suspicion to detain a person for an investigative detention, but they remove that person from their location and transport them elsewhere, the police have conducted an unlawful arrest.

As such, the court held that the seizure of Virden’s vehicle “was unreasonable absent probable cause because of its scope and intrusiveness.”[vii]

The court of appeals then set out to examine if probable cause existed to support the seizure of Virden’s vehicle.  The court noted relevant legal principles and stated

Even so, Virden‘s vehicle could be lawfully seized if probable cause existed. The Fourth Amendment only prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. Ordinarily, the seizure of personal property is per se unreasonable unless the seizure is pursuant to a warrant issued upon probable cause. Place, 462 U.S. at 701, 103 S. Ct. at 2641.  However, the search and seizure of vehicles without a warrant is permissible when the police have probable cause to believe a vehicle contains contraband. United  States v. Watts, 329 F.3d 1282, 1285 (11th Cir. 2003)(per curiam); United States v. Holloman, 113 F.3d 192, 195 (11th Cir. 1997)(per curiam). Probable cause exists when there is “a fair probability that contraband or evidence of a crime will be found.United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989)[viii]

In other words, if there was probable cause to believe Virden’s vehicle contained illegal drugs prior to the seizure of the vehicle, then the warrantless seizure would be permissible under the Fourth Amendment because of the automobile exception to the warrant requirement.

The court of appeals then noted the facts known to the officer that were relevant to probable cause.  First, the officers observed Virden at location were drug activity was suspected.  Second, Virden appeared to have some control over the garage because the garage door closed when he left the residence even though nobody else that could have shut the door was observed.  Third, Virden lied about where he had been when asked by the police.  Fourth, and weighing in favor of Virden, was the fact that neither Virden or his vehicle were known to the investigation, even thought the investigation had been on-going for at least one year.  Additionally, the court also noted that they have consistently held that

[A person’s] mere presence at a crime scene without more is insufficient to establish probable cause. Holmes v. Kucynda, 321 F.3d 1069, 1081 (11th Cir. 2003).[ix]

In light of the above, the court of appeals held that the facts known to the officers at the time of the seizure were not sufficient to establish probable cause.

As such, the seizure of Virden and his vehicle exceeded the permissible scope of the investigative detention and became an unlawful seizure since probable cause did not exist to support that seizure.

Practice Pointers:

  • If an officer wants to move a person from one location to another by transport in a police vehicle, the officer must have either (1) probable cause to believe the person committed a crime, or (2) the consent of the person to be moved.
  • If an officer wants to move a person’s vehicle from one location to another, the officer must have (1) probable cause to believe the vehicle contains evidence or is itself evidence, or (2) the consent of the person in lawful control of the vehicle.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] 488 F.3d 1317 (11th Cir. 2007)

[ii] Id. at 1319-1320

[iii] Id. at 1321

[iv] Id. (emphasis added)

[v] 470 U.S. 811 (1985)

[vi] Virden, F.3d at 1321 (quoting Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705 (1985))

[vii] Id. at 1321

[viii] Id. at 1321-1322 (emphasis added)

[ix] Id. at 1322

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