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Defendant's Memorandum in Favor of Motion to Suppress IN THE CIRCUIT COURT STATE OF MARYLAND v. JOSEPH AVERSA Defendant DEFEDANTS MEMORANDUM IN SUPPORT OF MOTION TO SUPPRESSIntroduction On December 2, 2004, at approximately 1: 39 pm, the defendant, Joseph V. Aversa, was stopped on interstate I-95 by Trooper D.M. McCarthy for traveling in excess of the posted speed limit (74 mph in a 65 mph zone). At 1:40 Trooper McCarthy proceeds to the vehicle and informs the driver that he is being recorded and that he is being pulled over for speeding. The trooper requests Mr. Aversa's license and registration. The defendant, Joseph V. Aversa, never received the warning ticket which was completed and not given to him until he was released from the detention center on bond. It is the defendant's contention that the traffic stop was a prolonged stop and the focus of the investigation shifted from enforcing the traffic laws to a narcotics investigation. The defendant further contends that all activities which occurred subsequent to the time necessary to detain the defendant and issue a warning or speeding ticket constituted a second and unlawful detention, and as a result, any canine scan and search of the vehicle amounted to an unlawful search and seizure in violation of Maryland Case Law and the United States Constitution. In fact, it is obvious from the videotape that the trooper abandoned the traffic stop and began a narcotics investigation when probable cause or reasonable, articulable suspicion did not exist. Issue The threshold issue is one similar to the issue in Snow v. Maryland 84 MD App 243 578A 2nd 816 (1989) a Cecil County case where the Court of Special Appeals reversed the Circuit Court for Cecil County in convicting the defendant, Snow, based on the facts, according to a Trooper's reasonable articulable suspicion that criminal activity was at hand. Like the case at bar, Snow was stopped for speeding on interstate 95 and issued a warning. Based upon what the trooper believed was a reasonable articulable suspicion, Snow was detained while a canine was summoned to conduct a drug sniff. As a result thereof CDS was found. The case at bar present's two distinct issues already addressed by the Court of Appeals and Court of Special Appeals of Maryland, namely whether or not nervousness and inconsistent stories could be a bases for a Trooper's reasonable articulable suspicion. The next issue present in the case at bar is whether or not a Trooper can prolong a motorist based on a hunch that illegal activity is present beyond the time necessary to issue a traffic warning. Argument In State vs. Ferris, 35 Maryland, the court states that the transition between a lawful traffic stop can be so seamless that the detainee does not recognize that a "second stop" has been effectuated. In addressing the validity in the second stop the court noted that it must have been supported by reasonable articulable suspicion. An officer's "hunch" is insufficient; rather, the standard is "whether a reasonably prudent person in the officer's position would have been warranted in believing that criminal activity was afoot...The Court found that mere bloodshot eyes, nervousness, and a lack of odor of alcohol, the factors argued by the State, were insufficient to constitute articulable suspicion of criminal activity, warranting the second stop." In the case at bar, defendant Aversa, presented a valid driver's license and rental agreement to Trooper McCarthy. There were no air fresheners in the vehicle to mask the odor of drugs, no odor of burnt marijuana or odor of alcohol on the person of Aversa. His eyes were not glassy or bloodshot. Trooper McCarthy writes in his statement of probable cause that Aversa's hands trembled when the driver handed his driver's license and rental agreement. He states that he observed the driver's breathing to be heavy and rapid. These actions do not amount to reasonable articulable suspicion. In Russell v. State, 138 Maryland App. 638, the court of appeals explained that exceptional nervousness in reaction to an encounter to the police officer simply, "too ordinary to suggest criminal activity and thus to support reasonable articulable suspicion." The Supreme Court case of Illinois v. Caballes was not decide until January 24, 2005, almost a month after the Maryland traffic stop. Here, the court held that a dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment. Justice Scooter filed a dissenting opinion and argued: "Once the dog's fallibility is recognized, however, that ends the justification claimed in Place for treating the sniff as sui generic (uniqueness) under the Fourth Amendment: the sniff alert does not necessarily signal hidden contraband, and opening the container or enclosed space whose emanations the dog has sensed will not necessarily reveal contraband or any other evidence of crime. This is not, of course, to deny that a dog's reaction may provide reasonable suspicion, or probable cause, to search the container or enclosure; the Fourth Amendment does not demand certainty of success to justify a search for evidence or contraband. The point is simply that the sniff and alert cannot claim the certainty that Place assumed, both in treating the deliberate use of sniffing dogs as sui generis and then taking that characterization as a reason to say they are not searches subject to Fourth Amendment scrutiny." Conclusion A traffic stop cannot become a convenient occasion for an officer to delay the travels of an ordinary motorist so that the officer may dispel a mere hunch that the motorist has committed a past crime or a present crime. See United States vs. Walker, 941F. 2nd 1086, 1088-90 (10 Cir. 1991). The government interest in interdicting narcotics does not allow for delaying motorists for question where no reasonable, articulable suspicion of drug trafficking exists. Here, it appears that Trooper McCarthy, a member of the interstate criminal interdiction team was using the traffic stop to exploit investigative opportunities. His questioning of the driver and occupant of the vehicle in no way furthered the purpose of the initial traffic stop. For the foregoing reasons, the case against the defendant, Joseph V. Aversa should be dismissed. Respectfully Submitted CERTIFICATE OF SERVICEI hereby certify on that _____ day of _______, 2005 that a copy of the foregoing Defendant's Memorandum in Support of Motion to Suppress was hand delivered to Michael Halter, Esquire, the Assistant State's Attorney at 11 a.m. __________________
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Michael J. Onifer, III, PA
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