Petition for Writ of Certiorari — Joshua Coleman, Petitioner v. Louisiana

No. _________

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------JOSHUA COLEMAN,

Petitioner,

vs.

STATE OF LOUISIANA,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari To The

Louisiana First Circuit Court Of Appeal

---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------PLAISANCE LAW, LLC

MARK D. PLAISANCE

Counsel of Record

MARCUS J. PLAISANCE

P.O. Box 1123

Prairieville, LA 70769

Tel: (225) 775-5297

Fax: (888) 820-6375

mark@plaisancelaw.com

marcus@plaisancelaw.com

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED FOR REVIEW

A traffic stop can be “unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a traffic ticket.” Illinois v. Caballes, 543

U.S. 405, 125 S.Ct. 834, 160 L.Ed. 842 (2005). Even a

de minimis detention to conduct on-scene investigation

into other crimes, including a dog sniff, can violate the

Fourth Amendment. Rodriguez v. United States, 575

U.S. 348, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). Thus,

the question becomes:

Does the Fourth Amendment protection against

unreasonable seizures tolerate a dog sniff which prolongs a stop, which occurs after all purposes for the

initial stop have concluded without citation, and which

occurs in the absence of reasonable suspicion or probable cause?

ii

PARTIES TO THE PROCEEDING

The parties to the proceeding are:

1.

State of Louisiana, through the St. Tammany Parish District Attorney’s Office.

2.

Joshua Coleman, an individual who entered a conditional plea* of guilty to possession with intent to

distribute Schedule II narcotics, 28 grams or more,

La. R.S. 40:967(A); La. R.S. 40:967(B)(1)(b); and

illegal carrying of a weapon while committing a

crime, a drug offense under the Louisiana controlled

dangerous substance statutes, La. R.S. 14:95(E).

CORPORATE DISCLOSURE

The state of Louisiana is a body politic. The St.

Tammany Parish District Attorney’s Office is a subdivision of the state of Louisiana.

LIST OF RELATED CASES

State v. Coleman, 2019-1458, Louisiana First Circuit

Court of Appeal. Judgment entered June 12, 2020.

State v. Coleman, 2020-00868, Louisiana Supreme Court.

Judgment entered October 20, 2020.

* State v. Crosby, 338 So.2d 584 (La. 1976); State v. Rachal,

53,398 (La. App. 2 Cir. 7/22/20), 300 So.3d 483 (A Crosby plea

allows a fair and efficient way for a court of review to focus on a

central issue which, if found erroneous, would mandate reversal

of any resulting conviction.); see F.R.Cr.P. Rule 11(a)(2).

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ..........

i

PARTIES TO THE PROCEEDING ......................

ii

CORPORATE DISCLOSURE ..............................

ii

LIST OF RELATED CASES ................................

ii

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

v

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

RELEVANT CONSTITUTION PROVISIONS.....

1

STATEMENT OF THE CASE..............................

2

District Court Proceedings ..................................

3

ARGUMENT ........................................................

6

1.

Tpr. Martinez’s prolonged detention of

Coleman transformed an initially justified

stop into an unreasonable seizure violative of Coleman’s Fourth Amendment

rights ......................................................... 10

2.

Trooper Martinez’s unreasonable seizure

began the moment he completed the mission of the initial stop ................................ 11

CONCLUSION..................................................... 23

iv

TABLE OF CONTENTS – Continued

Page

APPENDIX

Louisiana Court of Appeal, Opinion, June 12,

2020 .................................................................. App. 1

Louisiana Supreme Court, Order Denying Writ,

October 20, 2020............................................... App. 9

Louisiana Supreme Court, Genovese, J., Dissent

from Order Denying Writ .............................. App. 10

v

TABLE OF AUTHORITIES

Page

CASES

Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391,

59 L.Ed.2d 660 (1979) ...............................................6

Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75

L.Ed.2d 229 (1983) ..................................................15

Gamble v. United States, ___ U.S. ___, 139 S.Ct.

1960, 204 L.Ed.2d 322 (2019) .................................18

Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834,

160 L.Ed.2d 842 (2005) ............................... 13, 14, 15

Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673,

145 L.Ed.2d 570 (2000) ....................................... 12

Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct.

447, 148 L.Ed.2d 333 (2000) ............................. 14, 20

Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct.

2130, 124 L.Ed.2d 334 (1993) ...................................7

Rodriguez v. United States, 575 U.S. 348, 135

S.Ct. 1609, 191 L.Ed.2d 492 (2015) ................ passim

State v. Antoine, 2019-0047 (La. 2/25/19), 264

So.3d 443 .................................................................16

State v. Bell-Brayboy, 53,413, 2020 WL 1035939

(La. App. 2 Cir. 3/4/20)....................................... 18, 19

State v. Bell-Brayboy, 2020-01061, 2020 WL

7224282 (La. 12/8/20), ___ So.3d ___ ................ 19, 20

State v. Coleman, 2019-1458, 2020 WL 3108709

(La. App. 1 Cir. 6/12/2020) ................................. 1, 4, 5

State v. Ellis, 2019-0634 (La. 9/24/19), 279 So.3d

901 .............................................................................6

vi

TABLE OF AUTHORITIES – Continued

Page

State v. Purvis, 1996-787 (La. App. 3 Cir.

12/11/96), 684 So.2d 567 .........................................12

State v. Parker, 1997-1004 (La. App. 4 Cir.

12/9/98), 723 So.2d 1026) ........................................12

State v. Spearman, 2019-0065 (La. App. 1 Cir.

5/31/19) ....................................................................16

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968) ....................................................6

United States v. Bell-Brayboy, 2017 WL 5078400

(W.D. La. 2017) ........................................................17

United States v. Brigham, 382 F.3d 500 (5th Cir.

2004) ........................................................................21

United States v. Callison, 436 F.Supp.3d 1218

(S.D. Iowa 2020) ......................................................19

United States v. Foster, 634 F.3d 243 (4th Cir.

2011) ........................................................................20

United States v. Harris, 347 F.Supp.3d 1233

(S.D. Fla. 2018) ....................................................18

United States v. Jenson, 462 F.3d 399 (5th Cir.

2006) ..........................................................................9

United States v. Jones, 234 F.3d 234 (5th Cir.

2000) ........................................................................21

United States v. Landeros, 913 F.3d 862 (9th Cir.

2019) ........................................................................19

United States v. Monsivais, 848 F.3d 353 (5th

Cir. 2017) .................................................................12

vii

TABLE OF AUTHORITIES – Continued

Page

United States v. Rodriguez-Escalera, 884 F.3d

661 (7th Cir. 2018) ...................................................18

United States v. Spears, 636 Fed.Appx. 893 (5th

Cir. 2016) ....................................................... 9, 21, 22

United States v. Torres, 2017 WL 3149395

(U.S.D.C. N. Mex. 2017) ...........................................15

Utah v. Strieff, 136 S.Ct. 2056, 195 L.Ed.2d 400

(2016) .........................................................................6

Whren v. United States, 517 U.S. 806, 116 S.Ct.

1769, 135 L.Ed.2d 89 (1996) .....................................8

Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495,

146 L.Ed.2d 389 (2000) ........................................ 22

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ......................................... passim

U.S. Const. amend. XIV ................................................2

STATUTES

28 U.S.C. §1257(a) .........................................................1

La. C.Cr.P. art. 215(D) ...................................................8

1

OPINIONS BELOW

The Louisiana First Circuit Court of Appeal affirmed the denial of a motion to suppress, holding that

a total 20-minute detention – during which time the

officer who stopped Coleman determined he had a

valid driver’s license, valid registration, lacked a criminal record, warrants, and detainers – did not violate

the Fourth Amendment as interpreted in Rodriguez v.

United States, 575 U.S. 348, 135 S.Ct. 1609, 191

L.Ed.2d 492 (2015). State v. Coleman, 2019-1458, 2020

WL 3108709 (La. App. 1 Cir. 6/12/2020). Appx. 1.

The Louisiana Supreme Court, in a 6-1 decision,

denied Coleman’s writ of certiorari. State v. Coleman,

2020-00868 (La. 10/20/20), 303 So.3d 294. Justice

Genovese dissented, stating in part: “This situation is

precisely the one contemplated by the Rodriguez Court

when it issued its ruling.” Appx. 9-10.

---------------------------------♦---------------------------------

JURISDICTION

This court has jurisdiction under 28 U.S.C.

§1257(a).

---------------------------------♦---------------------------------

RELEVANT CONSTITUTION PROVISIONS

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

2

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

The Fourteenth Amendment to the United States

Constitution provides, in pertinent part:

. . . nor shall any state deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the equal protection of the laws.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE1

Louisiana State Police received an apparent anonymous tip that Joshua Coleman might be engaged in

suspicious behavior. Based on that tip, Trooper Raymond Martinez used a license plate reader to track

Coleman’s vehicle as he drove through southeast Louisiana on November 12, 2018. Tpr. Martinez located

and followed Coleman’s vehicle. According to Tpr. Martinez, Coleman followed another vehicle too closely and

may have had a license plate trim which blocked identifying information.

Tpr. Martinez stopped Coleman and requested

identification and proof of insurance. (19:10:50Z). The

The entire stop – except when the troopers spoke to each

other – was captured on dash cam. The times indicated are from

that recording.

1

3

background check proved Coleman had a valid driver’s

license, valid registration, and, most notably, the lack

of criminal history. (19:23:37) At that time the purpose

for the initial stop was completed. Tpr. Martinez issued

no traffic violations. Rather than release Coleman, Tpr.

Martinez further detained Coleman, questioned him,

and engaged in unrecorded conversation with a fellow

trooper. (post-19:24Z)

Because Tpr. Martinez believed Coleman was

nervous, his voice shaky, and his hand shaky – likely

because Coleman was forced to stand in cold, raining

weather outside his vehicle, and specifically based on

his refusal to allow his vehicle to be searched – Tpr.

Martinez told a co-trooper to perform a K-9 drug sniff.2

Thus, more than five minutes after learning that

Coleman’s driver’s license, registration, and criminal

history were clear, officers performed a K-9 sniff. The

dog approached the vehicle (19:28:59Z) and, thereafter,

alerted (19:29:21Z). Coleman was handcuffed and advised of his Miranda rights. His vehicle searched. The

search yielded 1.8 pounds of cocaine, a firearm, and a

mask in the vehicle’s trunk.

District Court Proceedings

The State of Louisiana indicted Coleman for (1)

possession with intent to distribute a schedule II

The record is unclear if Tpr. Martinez called for the K-9

unit or if the unit responded as backup. Nonetheless, discussion

between officers indicates the K-9 unit was on the scene at

19:27.41.

2

4

controlled dangerous substance 28 grams or more, and

(2) illegal carrying of weapons while committing or attempting to commit a crime of violence or while possessing or distributing a controlled dangerous

substance.

Coleman filed a motion to suppress, arguing Tpr.

Martinez unnecessarily and unlawfully prolonged the

traffic stop to conduct a roadside interrogation and dog

sniff wholly unrelated to the purpose of the stop. The

trial court denied the motion.

In oral reasons, the trial judge said that while the

obstructed license plate was not sufficient for Tpr.

Martinez to stop Coleman, the supposed following too

closely provided grounds for a stop. The court found the

information received from law enforcement in Lake

Charles and Coleman’s inconsistent statements created reasonable suspicion for an extended detention

and dog sniff.

Coleman thereafter entered a conditional plea

that allowed him to appeal the denied motion.

The Louisiana First Circuit Court of Appeal affirmed the trial court. Without much analysis, the

court found that Coleman’s lack of proof of insurance,

nervous behavior, and alleged dishonesty about his

travel history, along with what appeared to be loose

marijuana residue, was sufficient reasonable suspicion

to enlarge the scope of investigation, including a dog

sniff. Coleman, 2019-1458, 2020 WL 3108709, p.5.

5

The Louisiana Supreme Court denied a supervisory writ of certiorari. Coleman, 2020-00868 (La.

10/20/20), 303 So.3d 294. Justice Genovese dissented:

Trooper Martinez . . . arguably initiated a lawful stop of defendant for following another vehicle too closely and having a partially obscured

license plate. However, after the dispatcher

informed him that defendant had a valid

driver’s licence, valid registration, and the

lack of a criminal record (a five to 10 minute

period), Trooper Martinez had no authority to

further detain defendant. Ultimately, defendant was detained to a total of 20 minutes.

Trooper Martinez testified that he extended

the stop because of defendant’s nervousness,

heavy breathing, trembling voice, inconsistencies in defendant’s stories, and his questioning of an unknown substance on the driver’s

floorboard. However, defendant’s alleged

nervousness and shaking could be easily attributed to other factors, such as the cold November rain defendant stood in.

This situation is precisely the one contemplated by the Rodriguez Court when it issued

its ruling. It is my view that Trooper Martinez

prolonged the traffic stop in order to conduct

a canine sniff without the requisite reasonable suspicion. (Appx. 10).

Coleman seeks the relief Judge Genovese said is required by Rodriguez.

---------------------------------♦---------------------------------

6

ARGUMENT

The Fourth Amendment to the Constitution protects people from “unreasonable searches and seizures.” An officer violates that protection when he

detains a person to check his license without any evidence that the person is engaged in a crime. Delaware

v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d

660 (1979); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868,

20 L.Ed.2d 889 (1968). The officer deepens the breach

when he prolongs the detention just to fish further for

evidence of wrongdoing. Rodriguez, supra. By prolonging an illegal stop to search for lawbreaking, the officer

himself breaks the law. Utah v. Strieff, 136 S.Ct. 2056,

195 L.Ed.2d 400 (2016).

Moreover, detention of an alleged violator of any

provision of the Louisiana motor vehicle code may not

last longer than reasonably necessary for law enforcement to complete investigation of the violation and issue a citation for the violation, absent reasonable

suspicion of criminal activity. State v. Ellis, 2019-0634

(La. 9/24/19), 279 So.3d 901 (deputy lacked reasonable

suspicion to justify continued investigation to await female deputy for pat-down of defendant).

Joshua Coleman’s right to be free from an unconstitutional search and seizure was violated when law

enforcement unnecessarily detained him beyond the

time necessary to investigate its reason for a stop. Law

enforcement engaged in discussion with Coleman only

to convince him to consent to a search of his vehicle;

Coleman refused. At that point the traffic stop was

7

complete, a brightline this Court should establish

through this writ of certiorari.

Rather than release Coleman when the driving

and arrest records warranted no citation or arrest, law

enforcement unnecessarily continued Coleman’s detention. Tpr. Martinez testified he had no reasonable

suspicion until after the dog sniff.

In Rodriguez, the majority explained that “[a]n officer, in other words, may conduct certain unrelated

checks during an otherwise lawful traffic stop. But . . .

he may not do so in any way that prolongs the stop,

absent the reasonable suspicion ordinarily demanded

to justify detaining an individual,” particularly in order to conduct a dog sniff. Id., 135 S.Ct. at 1615. That

is so because a dog sniff is not fairly characterized as

part of the officer’s traffic mission. Id. The “critical

question, then, is not whether the dog sniff occurs before or after the officer issues a ticket . . . but whether

conducting the sniff ‘prolongs’ – i.e., adds time to – ‘the

stop.’ ” Id., 135 S.Ct. at 1616.

This Court has additionally held that searches

and seizures conducted outside the judicial process –

without prior approval by a judge or magistrate – are

per se unreasonable under the Fourth Amendment,

subject to only a few specially established and well delineated exceptions. Minnesota v. Dickerson, 508 U.S.

366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (internal

citations omitted); Rodriguez, 135 S.Ct. at 1615.

In Louisiana, the right to be free from a prolonged

detention is so valued that it is codified: “During

8

detention of an alleged violator of any provision of the

motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the

violation and issuance of a citation for the violation,

absent reasonable suspicion of additional criminal activity.” La. C.Cr.P. art. 215(D).

Yet, time and time again, individuals are stopped

and detained for longer than is necessary so law enforcement can create reasonable suspicion to justify either an illegal search or a dog sniff. This is one of those

times. While Rodriguez seemingly indicates law enforcement may detain for a de minimis time, the case

does not answer whether the Fourth Amendment protection against unreasonable seizures tolerates a dog

sniff which prolongs a stop, which occurs after all purposes for the initial stop have concluded without citation, and which occurs in the absence of reasonable

suspicion or probable cause.

An automobile stop is subject to the constitutional

imperative that it not be “unreasonable” under the circumstances. Whren v. United States, 517 U.S. 806, 810,

116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Even if brief and

for limited purposes, such a stop constitutes a seizure

under the Fourth Amendment. Id. Louisiana law similarly prohibits detention for a period of time longer

than reasonably necessary to complete the investigation of the violation and issuance of a citation for the

violation, absent reasonable suspicion of additional

criminal activity. La. C.Cr.P. art. 215.1(D). See also

Rodriguez (An officer may conduct certain unrelated

9

checks during an otherwise lawful traffic stop. But he

may not do so in a way that prolongs the stop, absent

the reasonable suspicion ordinarily demanded to justify detaining an individual.).

The time reasonably required to complete the mission of issuing a traffic ticket can include the time it

takes to perform basic investigatory tasks (e.g., inspect

the driver’s license, automobile registration, and proof

of automobile insurance, run computer checks, determine whether there are outstanding warrants against

the driver, and ask the purpose and itinerary of the

trip). Rodriguez, 135 S.Ct. at 1615; United States v.

Spears, 636 Fed.Appx. 893 (5th Cir. 2016) (internal citations omitted). But absent reasonable suspicion of

additional criminal activity, waiting for, or conducting,

a dog sniff cannot prolong a stop that is justified only

by the amount of time reasonably required to complete

the mission of issuing a traffic ticket and attending to

related safety concerns. Rodriguez at 1614, 1616. A dog

sniff is just not part of the mission of issuing a traffic

ticket. Id. at 1615.

Authority for seizure ends when tasks tied to the

traffic infraction are – or reasonably should have been

– completed. Id., 135 S.Ct. at 1614. For instance, if all

the computer checks come back clean, then, as a general matter reasonable suspicion disappears; there is

no legitimate reason for extending the stop. United

States v. Jenson, 462 F.3d 399 (5th Cir. 2006).

Any traffic stop prolonged beyond that point is unlawful and violates a defendant’s constitutional rights.

10

Rodriguez, 135 S.Ct. at 1616. Coleman’s prolonged detention violated his constitutional rights, and the

lower courts’ decisions finding otherwise are erroneous

interpretations of law which this court should reverse.

1. Tpr. Martinez’s prolonged detention of Coleman transformed an initially justified stop

into an unreasonable seizure violative of

Coleman’s Fourth Amendment rights.

The stop is not at issue. Trooper Martinez – although alerted by anonymous information that a gold,

Chevrolet Malibu would be traveling through Louisiana on Interstate 12 on November 12, 2018 – stopped

Coleman for allegedly having an illegal license plate

trim and following a vehicle too closely under La. R.S.

32:81. Trooper Martinez had no other reason to justify

stopping Coleman: “I don’t have anything else. No

other probable cause to pull him over than what I just

told you.”

A video introduced at the suppression hearing

demonstrates that after ordering Coleman to exit his

vehicle, and stand in cold, rainy, blustery weather, Tpr.

Martinez learned that Coleman had a valid driver’s license, valid registration, no criminal history, and no

open arrest warrants. According to the video time

stamp, Tpr. Martinez called for a license plate check at

19:11:25Z. He thereafter advised Coleman his license

and registration were sufficient while dismissing Coleman’s inability to locate proof of insurance.

(19:15:21Z). Seven minutes after calling for vehicle

11

information, Tpr. Martinez transmitted via radio Coleman’s driver’s license number. (19:18:05Z).

Five minutes later (19:23:37Z), a dispatcher informed Tpr. Martinez that Coleman had a valid

driver’s license and no outstanding warrants or detainers. At that moment, Tpr. Martinez’s investigation

was legally complete under Rodriguez and Louisiana

law. Coleman should have been allowed to leave and

complete his trip.

2. Trooper Martinez’s unreasonable seizure

began the moment he completed the mission

of the initial stop.

Tpr. Martinez did not issue a citation for the alleged traffic violations. Rather, he extended the stop by

interrogating Coleman, who was further detained

while Trooper Martinez drafted a consent form for

Coleman’s permission for a search of his vehicle. Tpr.

Martinez testified he believed his investigation of the

traffic stop was not complete, in part because of “indiscretions with his [Coleman’s] stories.” And while

Tpr. Martinez asked Coleman about some unknown

substance on the driver’s floorboard, he dismissed the

discovery, indicating Coleman should not “worry about

a little bit shake.” (19:27Z).

The lower court erroneously based its decision, in

part, on the trooper “observ[ing] what appeared to be

loose marijuana residue in the vehicle.” Tpr. Martinez

never even mentioned finding evidence of marijuana

in his report; he did not collect or test any object in

12

Coleman’s vehicle for marijuana because he “didn’t

smell marijuana.” And in his testimony, Tpr. Martinez

considered the alleged illegal material as inconsequential to the stop or reason for prolonged detention.

Tpr. Martinez could only articulate the objective

manifestation that Coleman was “nervous, breathing

heavy, and his voice trembling when speaking.” Nervousness – even appearing jittery and scared – is insufficient to establish reasonable suspicion of possible

criminal conduct. State v. Purvis, 1996-787 (La. App. 3

Cir. 12/11/96), 684 So.2d 567; State v. Parker, 19971994 (La. App. 4 Cir. 12/9/98), 723 So.2d 1066. Even

evasive behavior is not necessarily indicative of wrongdoing. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673,

145 L.Ed.2d 570 (2000); see also United States v.

Monsivais, 848 F.3d 353, 359 (5th Cir. 2017) (It is common for most people to exhibit signs of nervousness

when confronted by a law enforcement officer whether

or the not person is currently engaged in criminal activity.).

Despite the lack of reasonable suspicion or separate reasonable suspicion, Tpr. Martinez continued to

detain Coleman while speaking with other officers at

the scene. Tpr. Martinez also continued to push Coleman for permission to search Coleman’s vehicle. When

Coleman refused, Tpr. Martinez ordered the dog

sniff.

Tpr. Martinez used the dog sniff to illegally seize

Coleman:

13

Q: Mr. Coleman did not sign that search.

A:

Right, sir. Yes, sir.

Q: When you were asking Mr. Coleman

for consent to search his vehicle you

acknowledge you did not have the requisite level of suspicion to search Mr. Coleman’s car without his permission; isn’t

that right?

A: I can’t search it. That’s why we have a

dog, sir, to give us the probable cause to

search the vehicle. I did not have probable

cause to search the vehicle.

Tpr. Martinez admitted he impermissibly, and unconstitutionally, detained Coleman in order to create reasonable suspicion.

While the traffic violation provided initial justification for Tpr. Martinez to detain Coleman to perform

the traditional incidents of a routine traffic stop, the

traffic violation stop became unlawful when prolonged

beyond the time necessary to complete the mission of

performing the necessary checks on Coleman and issuing a warning or ticket. Illinois v. Caballes, 543 U.S.

405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).

In Rodriguez, the defendant was stopped for driving on the highway shoulder. After the officer conducted all steps necessary to complete the traffic stop

(the driver was only issued a warning), the officer

asked permission to walk his dog around the defendant’s vehicle. Id., 575 U.S. at 352. When Rodriguez refused, the officer called for a second officer. Thereafter,

14

the officer retrieved his dog and led him twice around

the defendant’s vehicle. The dog alerted to the presence

of drugs halfway through the second pass. Id.

While this court in Rodriguez explained the mission of a traffic stop may be to address the traffic violation and to attend to related safety concerns, by

measure, a dog sniff is aimed at detecting evidence of

ordinary wrongdoing. Rodriguez at 1615, quoting Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148

L.Ed.2d 333 (2000). The “dog sniff ” is not part of the

officer’s traffic mission. Id. Law enforcement may not,

therefore, extend an otherwise completed traffic stop to

conduct a dog sniff absent reasonable suspicion. Id.

(Emphasis added).

In Rodriguez, this Court held that even a six-toeight-minute delay following a traffic stop where the

driver is detained is a violation of the defendant’s

Fourth Amendment rights; the detention is not merely

“de minimis” when the detention is not supported by

reasonable suspicion garnered before the traffic stop

concluded. Id. at 1611. Coleman asserts the lower

courts erred in failing to hold, under Rodriguez, that

Tpr. Martinez’s prolonged detention violated Coleman’s Fourth Amendment rights.

In Cabelles, the Court made clear that in the context of a traffic stop supported by probable cause, “a

dog sniff would not change the character of a traffic

stop at its inception and otherwise executed in a reasonable manner.” 543 U.S. at 408, 125 S.Ct. 834. But

without a clear indication of when the authority to

15

detain stops – ideally when the warning or citation is

issued or when the officer has completed the mission

of the stop – law enforcement can manipulate the sequence of events to justify reasonable suspicion.

This Court’s jurisprudence has incrementally

sought to limit tolerable duration of police inquiries in

the traffic-stop context to address the traffic violation

that warranted the stop and to attend to related safety

concerns. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct.

1319, 1325, 75 L.Ed.2d 229 (1983) (Because addressing

the infraction is the purpose of the stop, it may last no

longer than is necessary to effectuate that purpose.);

Cabelles, 543 U.S. at 408 (“An officer [ . . . ] may conduct

certain unrelated checks during an otherwise lawful

traffic stop. But . . . he may not do so in a way that

prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”).

Lower courts, however, struggle. Law enforcement

can go to great lengths to control a stop. This case

affords this Court the opportunity to answer the unanswered question in Rodriguez and designate the point

at which the Fourth Amendment forbids detention

simply for detention’s sake. Especially, where here, Tpr.

Martinez admitted he needed the dog sniff to extend

Coleman’s detention.

The Tenth Circuit, for example, has wrestled with

pinning down what precisely constitutes an unconstitutional extension of a traffic stop. See, e.g., United

States v. Torres, 2017 WL 3149395, fn. 10 (U.S.D.C. N.

16

Mex. 2017) (extensively discussing the tension between cases which are fairly lenient toward law enforcement personnel with regards to expanding a

traffic violation’s scope with Justice Ginsberg’s statement in Rodriguez that a traffic stop “may last no

longer than is necessary to effectuate the stop’s purpose.” 135 S.Ct. at 1614).

Louisiana courts, too, have failed to fully understand Rodriguez and Fourth Amendment limitations

on law enforcement which should exist in practice to

prevent expansion of the typical stop. Cf. State v.

Antoine, 2019-0047 (La. 2/25/19), 264 So.3d 443 (Genovese, J., would grant for following reasons, in part:

“Officers stopped a vehicle ostensibly for a traffic violation. Over the course of 15 minutes, officers vetted

both the driver and passenger and found no outstanding warrants or other cause to detain the occupants.

Officers denied smelling marijuana or other drug

odors. Nevertheless, one officer asked to search the

vehicle. The driver refused. The officer thereafter requested a K-9 officer to conduct a dog sniff. The K-9

unit arrived approximately 22 minutes later. In my

view, officers articulated no reasonable suspicion to

justify extending the already-completed stop to conduct the drug sniff.”); State v. Spearman, 2019-0065, fn.

6 (La. App. 1 Cir. 5/31/19) (unreported) (noting this

Court declined to address in Rodriguez whether reasonable suspicion developed during the stop to justify

prolonging detention, remanding for further proceedings on the issue).

17

The uncertainty of whether a detention beyond a

warning, issuance of a ticket, or completion of the

mission for which the stop was executed is an unreasonably prolonged stop in violation of the Fourth

Amendment is well illustrated in both the federal and

state cases against Brandon Bell-Brayboy. The defendant was initially indicted in federal court. Stopped

for speeding, Bell-Brayboy was accused of typical law

enforcement grounds for detention: speeding, nervousness or sleepiness, vehicle registered in another person’s name, and objection to search of the vehicle.

Officers failed to issue a citation for the speeding,

rather calling for a K-9 unit. United States v. BellBrayboy, 2017 WL 5078400 (W.D. La. 2017) (unreported). The K-9 search revealed illegal narcotics. In

response to Bell-Brayboy’s motion to suppress, the district court concluded the continued detention beyond

the time reasonably required to complete the mission

of issuing a traffic ticket, without reasonable suspicion

and for more than 20 minutes while waiting for a K-9

to arrive, violated defendant’s constitutional shield

against an unreasonable seizure.

Unfazed with the federal court suppression and

case dismissal, the Louisiana Webster Parish District

Attorney indicted Bell-Brayboy for the illegal possession of the same narcotics.3 In the course of the

The prosecution of Bell-Brayboy in state court for the same

criminal activity after the dismissal of charges in federal court

does not violate double jeopardy due to the dual-sovereignty doctrine. That rule provides that a crime under one sovereign’s laws

is not the same offense as a crime under the laws of another

3

18

proceedings, the state presented evidence from the

same trooper, who presented a more detailed explanation for his suspicion the defendant was transporting

narcotics. Finding the trooper acted in “good faith” in

detaining Bell-Brayboy for a K-9 sniff – while not issuing the ticket for the speeding violation for which the

stop was instituted – the trial court denied the defendant’s motion to suppress.

Bell-Brayboy, like Coleman herein, entered a

Crosby plea and appealed the suppression issue. The

Louisiana Second Circuit initially reversed the conviction, holding that Bell-Brayboy was illegally detained

based upon innocuous explanations for the facts the

trooper claimed provided reasonable suspicion. State v.

Bell-Brayboy, 53,413, 2020 WL 1035939, p. 12 (La. App.

2 Cir. 3/4/20), ___ So.3d ___. (Emphasis added). On rehearing, the court reversed its position, apparently

finding Rodriguez inapplicable since the officer articled reasonable suspicion for a detention and had yet

to issue the traffic citation. The court found the 35-minute total detention was not too long or unconstitutional. Id. at 27.4

sovereign. See Gamble v. United States, ___ U.S. ___, 139 S.Ct.

1960, 204 L.Ed.2d 322 (2019).

4

See, e.g., in contrast: United States v. Rodriguez-Escalera,

884 F.3d 661 (7th Cir. 2018) (Vehicle stopped for abruptly switching lanes; driver’s license suspended; nearly twenty-two minutes

to issue routine traffic citations and additional ten minute detention waiting for K-9 unit was unreasonable).

United States v. Harris, 347 F.Supp.3d 1233 (S.D. Fla.

2018) (Sixteen minutes between time officer stopped vehicle

and time dog alerted to order of drugs unreasonable based on (1)

19

Bell-Brayboy’s certiorari writ application to the

Louisiana Supreme Court was denied. State v. BellBrayboy, 2020-01061, 2020 WL 7224282 (La. 12/8/20),

___ So.3d ___. Chief Justice Johnson, writing in support of granting certiorari, explained that the state

offered no additional circumstances to justify the officer’s suspicion beyond those already considered, and

found insufficient, by the federal court. Chief Justice

Johnson relied upon Rodriguez to support her position

that “[a]uthority for the seizure thus ends when tasks

tied to the traffic infraction are – or reasonably should

have been – completed.” Bell-Brayboy, supra at 1. The

chief justice also found the officer’s hunch that BellBrayboy was participating in an illegal activity could

not be grounds for contrived suspicious activities

where none existed. “It is of no moment that [n]one of

the trooper’s suspicions were shown to be incorrect. It

is axiomatic that no Fourth Amendment violation is

justified by the ends reached.” Id. at 2, citing BellBrayboy, 53,413 at 4.

defendant’s drug history; (2) his nervousness when asked about

drug history; and (3) presence in a high drug trafficking area).

United States v. Callison, 436 F.Supp.3d 1218 (S.D. Iowa

2020) (Questions regarding defendant’s travel-plan and contraband lacked rational relationship to roadway safety or observed

violation and was unreasonable detention).

United States v. Landeros, 913 F.3d 862 (9th Cir. 2019) (Several minutes of additional questioning to ascertain identity of

driver stopped for speeding not part of mission of traffic stop,

making detention unreasonable and seizure of narcotics unconstitutional).

20

Bell-Brayboy demonstrates the struggle lower

courts have in (1) appreciating the difference between

the certain line that completes the traffic mission between (2) law enforcement’s apparent ability to articulate sufficient grounds in an effort to show prolonged

detention was necessary. The Bell-Brayboy decision,

along with Coleman’s herein, shows the need for this

Court to articulate precisely what remains unanswered following Rodriguez: what constitutes reasonable suspicion to detain a defendant for a K-9 dog sniff.

By measure, a dog sniff is aimed at detecting evidence of ordinary wrongdoing. Rodriguez at 1615,

quoting Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct.

447, 148 L.Ed.2d 333 (2000). This court determined a

“dog sniff ” is not part of the officer’s traffic mission. Id.

This Court held that law enforcement may not extend

an otherwise completed traffic stop to conduct a dog

sniff absent reasonable suspicion. Id. (Emphasis

added).

Suspicion must be more than just a hunch. The

government must be able to legally articulate why a

particular behavior is suspicious. Or, the government

must logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative

of some more sinister activity than may appear at first

glance. United States v. Foster, 634 F.3d 243, 243 (4th

Cir. 2011).

Even before Rodriguez, courts treated the extended detention of an individual in order to conduct a

dog sniff unreasonable because “a detention must be

21

temporary and last no longer than is necessary to effectuate the purpose of the stop.” United States v.

Brigham, 382 F.3d 500, 507 (5th Cir. 2004). Indeed, a

three-minute delay, or a delay of “moments,” or a “trivial delay” between the completion of a computer check

and a later search or dog sniff can be unreasonable. See

United States v. Jones, 234 F.3d 234, 241 (5th Cir.

2000).

In United States v. Spears, 636 Fed.Appx. 893 (5th

Cir. 2016), for example, almost 40 minutes elapsed

from the time the defendant was initially stopped until

the time the search began. The search was commenced

upon receipt of information that a large amount of

money had been found in a suspected drug dealer’s

vehicle whose home Spears had visited earlier that

day. Approximately sixteen and a half minutes after

Spears was stopped, he was placed in the back of the

patrol vehicle, all questioning had been completed, he

had been patted down, and all computer checks had

been fully completed. Id. at 901.

The Fifth Circuit found the activities involving the

mission of issuing a traffic ticket and attending to related safety concerns were completed, with Spears detained for almost an additional twenty three and a half

minutes – just sitting in the back of the patrol car –

while officers tried to obtain a drug-sniffing dog.

Spears at 901. Ultimately, the court found the circumstances that existed before the stop and during the

initial sixteen and a half minutes of the stop “did not

create a reasonable suspicion of criminal activity.” Id.

at 905. Because law enforcement officers detained

22

Spears longer than the time reasonably required to issue a ticket for a traffic violation and attend to related

safety concerns, without reasonable suspicion of additional criminal activity, his prolonged detention violated the Fourth Amendment. Id. The court reversed

the district court’s grant of the motion to suppress and

vacated Spears’ conviction and sentence. Spears at

905.

Thus, everything outside the “mission” amounted

to an improper delay in the absence of probable cause

or a reasonable basis for suspicion of narcotics. But

without a defining point, law enforcement continues to

pursue an inquiry unrelated to the traffic stop; it runs

afoot of Rodriguez’s intent that the detention remain

“de minimis” unless there exists clear reasonable suspicion for further inquiry. What that reasonable suspicion is, and at what point that reasonable suspicion

arises, remains unclear.

Left unanswered, this court’s Rodriguez decision

also allows for an officer to stop and detain a motorist

for whatever reason the officer can pretextually justify

after the fact and for state courts to issue decisions

“contrary to” this Court’s clearly established precedents. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct.

1495, 146 L.Ed.2d 389 (2000) (A state-court decision

is contrary to this Court’s precedent if the state court

arrives at a conclusion opposite to that reached by

this Court on a question of law. Second, a state-court

decision is also contrary to this Court’s precedent if

the state court confronts facts that are materially indistinguishable from a relevant Supreme Court

23

precedent and arrives as a result opposite to one of this

Court.).

---------------------------------♦---------------------------------

CONCLUSION

In light of the uncertainty in what constitutes a

de minimis detention, this court should grant this writ

of certiorari to decide whether the Fourth Amendment

protection against unreasonable seizures tolerates a

dog sniff which prolongs a stop, which occurs after all

purposes for the initial stop have concluded without citation, and which occurs in the absence of reasonable

suspicion or probable cause.

Respectfully submitted,

PLAISANCE LAW, LLC

MARK D. PLAISANCE

MARCUS J. PLAISANCE

P.O. Box 1123

Prairieville, LA 70769

Tel: (225) 775-5297

Fax: (888) 820-6375