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YOU CAN’T FAULT THE DEA FOR A LACK OF IMAGINATION

 

This is a true crime story with a twist:

Ascension Alverez-Tejeda and his girlfriend were transporting drugs in their vehicle. They stopped at a traffic light and when the light turned green, the car in front of them began to move through the light then stalled. Mr. Alverez-Tejeda stopped in enough time to avoid rear-ending the stalled car but the truck behind him did not. The truck tapped the bumper of Mr. Alverez-Tejeda’s vehicle. Two police officers responded, and the truck driver ended up getting arrested for driving drunk. Since there was no damage to Mr. Alverez-Tejeda’s vehicle, he asked the responding officers if he could leave. He was told that the officers needed a statement from him and he was directed to move to a nearby parking lot.

Mr. Alverez-Tejeda and his girlfriend were then told by the officers to give their statements inside the police cruiser. While they sat in the police car, Mr. Alverez-Tejeda’s vehicle was stolen. The police took off after the thief but returned to tell Mr. Alverez-Tejeda that the thief got away. What a stroke of bad luck for these would-be drug transporters. But it got worse: When the police recovered the stolen car, they obtained a search warrant and the drugs were found in the vehicle. Mr. Alverez-Tejeda was arrested and charged with transporting cocaine and methamphetamine.

Here’s the twist: Except from Mr. Alverez-Tejeda and his girlfriend, everyone involved in this episode, from the car that stalled out, to the “drunk” truck driver, to the car thief were DEA agents and the police officers who responded were co-participants in the ruse to arrest Mr. Alverez-Tejeda.

Here’s the backstory: According to the Ninth Circuit Court of Appeal, the DEA was investigating a drug trafficking operation and learned of a drug conspiracy during telephone surveillance of one of the leaders of the conspiracy. On one telephone intercept, the DEA learned that Mr. Alverez-Tejeda was going to transport drugs. The reason for the staged arrest, according to the government, was to protect the undercover investigation.

Now it might seem that the Fourth Amendment, which protects against unreasonable search and seizure, was violated here. After all, the police set up a situation where they could obtain a legal search warrant on the vehicle, i.e., because it was recovered after being “stolen.” But it wasn’t really stolen, and the police knew that. Sure enough, Mr. Alverez-Tejeda challenged the search on Fourth Amendment grounds and moved the trial court to suppress the evidence.

As it turns out, DEA undercover agents had previously purchased drugs from Mr. Alverez-Tejeda’s vehicle and on that basis, the government argued that the DEA had probable cause to search the vehicle without a warrant. But in order to keep the on-going investigation secret, the ruse was concocted. Mr. Alverez-Tejeda’s motion to suppress was not granted by the trial court. He appealed. The district court reversed, finding that when considered as a whole, the search, with the elaborate staging, was unreasonable. The district court suppressed the evident, which essentially left the prosecution with no case.

The prosecution appealed to the Ninth Circuit. The Ninth Circuit, finding the search was constitutional for reasons discussed below, reversed the district court’s decision. The circuit court’s discussion was based on the reasonableness requirement of the Forth Amendment. That requirement considers a balance between the intrusion on the defendant’s rights and the DEA’s justification for the intrusion. The Ninth Circuit maintained that the only actual harm to the defendant was that he was misled, thus the intrusion was minimal and protecting the on-going investigation outweighed this minimal intrusion on the defendant’s interests.

The circuit court noted that its analysis would be different if the ruse employed a serious risk of injury to the defendant or led to an escalation of violence. As examples, the court said the balance would imply a suppression of the evidence if the police staged a car-jacking at gun point or ran the defendant off the road. But a light tap to the bumper of the defendant’s vehicle was a minor intrusion and the need to protect the secrecy of the investigation was important.

Perhaps more important, the Ninth Circuit premised its decision on the knowledge that the police already had probable cause to search the vehicle. Had there been no antecedent authority to search the car, the ruse did not extend the scope of the DEA’s actual authority.

Search and seizure law has a long history in our courts and can be very bewildering. Many exceptions to the prohibition on unlawful search and seizure have been carved out by the courts. And as this case illustrates, what may seem to the average person to be an unlawful search and seizure is not always so. Very few other areas of law have more nuance and complexity.

Yet police do occasionally conduct unlawful searches. An experienced criminal defense attorney can determine from the facts of the search whether there is a potential challenge to the search on Fourth Amendment grounds. A constitutionally illegal search usually results in the charges being dismissed.

If you think you were the subject of an unlawful search and seizure, Orange County criminal defense attorney, William Weinberg, is available to review the facts of your case and advise you regarding any potential constitutional challenge you may have. You may contact him for a free consultation about any criminal matter at his Irvine office, (949) 474-8008, or by emailing him at bill@williamweinberg.com.