Cayenne peppers (left) are reported to mask the scent of drugs, and throw-off narcotic dogs. They don’t. At least, they didn’t well enough to deter a narcotics dog in United States v. Douglas Jensen, __ F.3d __, Slip. Op. 13841 (Oct. 6, 2005), available here. In Jensen, Judge Bea writes for the Ninth and reaffirms the dangerous “collective knowledge” Fourth Amendment theory.
Players: Prolific Judge Bea writes again, O’Scannlain and McKeown join.
Facts: A citizen tipster saw a black station wagon going over 75 m.p.h. in a 25 zone in Flathead County, Montana. Slip. Op. at 13845. The Sheriff issued a “attempt to locate” dispatch for the driver. Whitefish police department Sgt. Cook heard the dispatch and recognized the car as belonging to Douglas Jensen. When Cook had previously served on the Northwest Drug Task Force, he learned Jensen smuggled drugs in that car. Id. at 13846. Sgt. Cook stopped Jensen, other officers joined him and cited Jensen for reckless driving. Id. at 13847. Cook called a Task Force detective, who said “I didn’t know Jensen was back from Mexico.” Id. Sgt. Cook then asked a senior officer at the Kalispell Police Department if Jensen should be cited or arrested for reckless driving, and was given the green light to arrest. Id. The car was impounded, a dog alerted on a narcotics sniff, the officer got a warrant and pure and powder meth was recovered from Tupperware hidden inside the frame of the car. Id. at 13847-49. After a bench trial, Jensen was sentenced to life in prison because of his priors. Id.
Issue(s): 1. Was there sufficient probable cause to arrest Jensen for drugs? 2. Was it lawful to impound the vehicle after the initial stop? 3. Does the mandatory life sentence violate separation-of-powers and non-delegation doctrines, or the defendant’s due process rights? (Also, of less interest, an Eighth Amendment challenge).
Held: 1. Probable Cause: “We conclude that [Sgt.] Cook had probable cause to arrest Jensen on suspicion of illegal drug activity . . . . Sergeant Cook’s testimony that he had received intelligence regarding Jensen was sufficient for the purpose of establishing probable cause under the so-called ‘collective knowledge doctrine.’” Id. at 13852.
2. Car impoundment: “Based on the evidence supporting Jensen’s arrest, as well as the results of the canine sniff test, impoundment of Jensen’s vehicle was proper under the Fourth Amendment, because Cook had probable cause the believe the vehicle contained illegal drugs.” Id. at 13585-86.
3. Sentencing: “While this court has not directly addressed the question whether the sentencing scheme at issue here violates the non-delegation doctrine, two circuits have concluded that the sentencing scheme does not impermissibly delegate legislative authority to the executive. . . . We find this reasoning persuasive and similarly reject Jensen’s separation of powers claim. . . . [Life sentences under Section 841(b)(1)(A) are] individualized according to quantity and varied of narcotic possession and according to the number of felony drug convictions, and thereby comport with due process.” Id. at 13857-58.
Of Note: The Fourth Amendment holdings of Jensen aren’t new, but they’re bad. One wonders why the Court is fooling with PC to arrest the defendant at all – is “reckless driving” an arrestible offense in Montana? If so, why is PC even relevant after the Supreme Court's decision Atwater? In any event, this “collective knowledge” approach is a sloppy area of Fourth Amendment law, providing the opportunity for much police mischief. The case also raises the question of whether Judge Bea is a punster. The opinion begins, “It was an excess of speed that initially brought him to the attention of the authorities . . . .” Id. at 13844. Is “speed” referring to m.p.h., or meth? Probably the former, but the latter is true, too.
How to Use: In a mandatory life case, one has to preserve every argument for later appeal or habeas. The non-delegation challenge to the mandatory life provisions of Section 851 has now been rejected by three Circuits. Id. at 13858. It has not, however, been considered by the Supreme Court. Until that nail is driven into the argument’s coffin, worth bringing these constitutional challenges – particularly in very heavy mandatory minimum cases.
For Further Reading: The defendant in this case used cayenne peppers to mask the smell of meth from the narcotic dogs. A police protocol sheet – on a pot web page – provides an interesting litany of other materials used to mask drug scent (including dog food). See article here (“Masking Odors.”)
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org