MARSHAL: PLEASE RISE. HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT OF THEGREAT STATE OF FLORIDA IS NOW IN CEREMONIAL SESSION. ALL WHO HAVE CAUSE TO PLEA , DRAW N EAR, GIVE ATTENT ION AND YOU SHALL BE HEAR D. GOD SAVE T HESE UNITED STATES , THE GREAT STATE OF FLORIDAAND THIS HONORABLE COURT. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SE ATED.

CHIEF JUSTICE: GOOD MORNING , LADIES AND GENTLEMEN . STUDENTS, TEACHERS , FAMILY. WELCOME TO THE FLORIDASUPREME COURT . WE H AVE ONE CASE ON OUR DOCKET THIS MORNING , AND T HAT CASE IS MENENDEZ VERSUS STATE OF FLORIDA. THIS IS AN HISTORIC OCCASION , BECAUSE THIS IS THE FIRST OF WHAT WE HO PE W ILL B E M ANY APPELLATE HI GH SCHOOL M O OT COURT COMPETITION. I WANT TO ASSURE THE STUDENS THAT THIS IS , ALL LAWYERSBEFORE THEY ARGUE IN FRONTOF THE SUPREME COURT ARE SOMETIMES , HAVE A LITTLE BUTTERFLY IN THEIR STOMACH , SO JUST THINK ABOUT I T AS IF YOU WE RE IN SCHOOL AND YOU KNOW , DOING YOUR FI NAL EXAMINATION.SOMETHING THAT MI GHT REALLY G IVE YOU SOME CAUSE FOR CONCERN.ANYWAY, WITH THAT , WE AREGOING TO CALL THE CASE, AS I SAID, OF MENENDEZ VERSUS STATE OF FLORIDA, AND AS I UNDERSTAND IT , WE HAVE FORTHE PETITIONER , BRUCE BOSTICK AND OSCAR BASTARDO. AND YOU ARE GOING TO DIVIDE YOUR T IME , 7 AND-A-HALF AND 7 AND-A-HALF MINUTES , SO IF THE PETITIONER IS READY TO PROCEED , YOU MAY PROCEED.

MAY IT PLEASE THE COURT. MY NAME IS OSCAR BASTARDO AND MY CO-COUNSEL , BR UCE BOSTICK, REPRE SENT THE PETITIONER TONY MENENDEZ IN THIS MATTER. THIS CASE IS HERE ON AN APPEAL FROM THE 25th JUDICIAL CIRCUIT. TODAY WE HAVE TWO IS SUES AT HAND. THE FIRST ISSUE IS DID THE FLORIDA HIGHWAY PATROL HAVE SUFFICIENT CAUSE TO EXTEND THE SCOPE OF THE TRAFFIC STO P. THE SE COND ISSU E IS , IF MR . MENENDEZ 'S FO URTH AMENDMENT RIGHTS ARE VIOLATED WITH A K -9 SNIFF. TODAY ILL ARGUE THE FIRST I SSUE OF, DID THE FLORIDA HIGHWAY PATROL HAVE SUFFICIENT CAUSE FOR THE STOP AND MY CO- COUNSEL WILL A RGUE THE SEC OND ISSUE. CAN YOU TELL US ABOUT THE CASE?

YES, YOUR H O NOR. ON MARC H 4 , 2 004 , THE PETITIONER WAS PULLED OVER BY THE HIGHWAY PATROL OF THE STATE OF FLORIDA AND HE WAS GOING 70 IN A 55 , AND THAT WAS THE INITIAL STOP.

YOU DON'T CONTEST THAT HE WAS VIOLATING THE SPEEDLIMIT.

NO, THERE IS NO QUESTIONSABOUT THE STOP, URN. BEFORE THE K UNIT ARRIVED , AND COURTS IN ILLINOIS FOR THE K-9 UNIT TO ARRIVE , AND THE COURTS IN ILLINOIS SAID IT TOOK 45 MINUTES FORTHE K-9 UNIT TO ARRIVE , AND IN OUR C AS E IT TOOK 15 MINUTES FOR THE K-9 UNIT TO ARRIVE, SO T H AT WAS JUST AN EXTENSION OF TIM E.

WAS THERE A PERIOD O F TIME FOR TH IS TO ALTER THE FACTS OR ALTER THE TRAFFIC FOR SOME OTHER T YP E OF ISSUE? L AW ENFORCEMEN T , WE WOULD EXPECT THEM TO GO FURT HER.

TROO PER CALHOUN S AID THAT , BASED U PON CONFLICTING STORIES , THEY HAD A LACK OF LUGGAGE IN THE VEHICLE, THECAR WAS MESSY AND PASSENGERS NERVOUS , RAISED SUSPICION , AND THAT WAS HIS REASON FOR EXTENDING THE TRAFFIC STOP.

ARE YOU SA YING THAT THE OFFICERS ACTUALLY AGREED THAT THIS WAS AN EXTENDED STOP, THAT IT TOOK LONGER THAN A REGULA R TRAFFIC ST OP WOULD HAVE TAKEN?

THEY DIDN'T AGREE O N. THAT THEY WERE , THE TRAFFIC INITIALLY WAS FOR SPEEDING, AND THEN W HEN TR OOPER VALDOON SAW THE SUSPICIONS IS WH EN THE STOP G OT EXTENDED.

WHAT D ID THEY DO THAT WAS UNREASONABLE? DURING THAT 45 MINUTES.

AS SOON AS HE ARRIVED TO THE VEHICLE, AS SOON AS WEPULLE D HIM OVER , HE SAID THAT THE DRIVER WAS ACTING NERVOUS, AND MR . VAN AL LE N , TROOPER VAN ALLEN'S STATEMENT , W HICH WAS A TRAINEE WITH TROOPER VA LDOON , HE ST ATED ON PAGE 26, THE SECOND PARAGRAPH, HE STATED I DID NO T ANTICIPATE ANY F EAR F ROM THE PASSENGER OR D RIVER, SO I F IN FAC T THE PASSENGER AND DRIVER WERE NERVOUS , IT IS BECAUSE THEPOLICE WERE INTIMIDATING . THEY GET THIS KIND OF THING EVERYDAY, WHERE THEY AREPULLED OVER AND ARE NERVOUS.

AS I UNDERS TAND THE FA CTS, THE TROOPER NOT ONLY PULLED THEM OVER , BUT R ATHER THAN CONVERSING WITH HIM THERE, WITH THE DR IVER I N HIS S EAT, HE TOOK HIM BACK TO THE PATROL CA R.

YES, AND BE FORE HE E VEN REMOVED HIM FROM HIS VEHICLE , HE R EMOVED THE KEYS FROM THECAR. THEN HE , H E DIVIDED B OTH OF THE SUBJ ECTS , A ND HE TOOK THEM BACK TO HIS CRUISER , AND THAT IS WHEN THEY FOUND OUT ABOUT CONFLICTING STORIES.

WHAT WAS THEJUSTIFICATION FOR TAKING THE DRIVER BA CK TO THE PA TROL C AR?

ALL HE HAD AT THAT P OINT WAS THAT HE WAS B EING NERVOUS, AND THAT IS NOT REASONABLE ANDARTICABLE SUSPICION TO DO SO .

SO , AGAIN , WE HAD A 45-MINUTE STOP. DID YOU ESTABLISH OR IS IT IN THE RECORD FOR THIS STOP , WHAT THEY WERE DOING , OTHER THAN THE KINDS OF THIN G THAT IS YOU ARE RELATING, WHERE THEY ARE BRINGING HIM BACK TO THE VEHICLE? IN OTHER WO RDS , YOU WOULD AGREE THAT THEY COULD TAKE TIME TO WRITE THE TERRIFIC OUT.WAS THERE ANY TESTIMONY THAT THEY WROTE THE TRAFFIC TICKET OUT?

THEY WERE INITIALLYSTOPPED FOR SPEEDING, SO IT WOULD BE ASSUMED THAT THEY W ROTE THE CITATION FOR SPEEDING , BUT BE FORE THEY WERE PULLED OVER , HE GOT THE DRIVERS LICENSE REGISTRATION AND PUT IT IN THE COMPUTER AND AFTER THAT WR ITTEN THE CITATION, BUT THERE IS N O EVIDENCE IN THE CASE WHERE HE EVEN ATTEMPTED TO WRITE A CITATION.

ARE YOU SAYING THAT THEY WEREN'T RE ALLY STOP PING HIM FOR SPEEDING BUT THAT THEYWERE LOOKING FOR SOMETHING ELSE?

YES , AND THEY J UST BA SED THAT STOP ON MERE HUNCHES FOR E X TENDING THE STOP. IN FACT , TROOPER VAN ALLEN STATES IN A STAT EMENT , ON, HE STATES THAT, L OOK , THERE ARE TWO MEXICANS IN A BRAND NEW PICKUP TRU CK. THAT CAN ONLY MEAN THREE THINGS , TRAINEE , METH AMPHETAMINE, CO CAINE , AND ALOT OF IT. WE HAVE TO KEEP THEM THERE LONG ENOUG H TO GET EXAMINED BY A DO G. THE CAR WENT BY AND THEY WERE STOPPED IN THE ME DIAN AND HE MADE THAT STATEMENT.

DO WE KNOW WHAT THE TRIAL JUDGE FOUND? IN OTHER WORDS, I T IS TRIAL JUDGE LIST ENED TO ALL OF THIS TESTIM ONY AND THOUGHTIT WAS A VALID TRAFFIC STOP.

YES. THEY DENIED THE MOTION TO SUPPRESS THE COCAINE , ALSO.

AREN'T YOU AS KING US TO REWEIGH THE FACTS THAT THE TRIAL JUDGE FOU ND?

YES, YOUR HONOR.

CAN WE DO THAT? CAN WE REWEIGH THE FACT S?

YES , BE CAUSE IN ILLINOIS V COX , IT STATED THAT, IF AN OFFICER'S INVESTIGATIONBASED ON REASONABLE SUSPICION, HE MUST HAVE BEEN ABLE TO POINT TO REAS ONABLE ANDARTICABLE FACTS THAT G AVE SUCH RISE TO SUSPICION , AND IN THIS CASE HE G IVES CERTAIN SUSPICIONS THAT THE NERVOUSNESS OF THE OCCUPANTS, WHICH IS COMPLETELY ENTIRELY REBUTTED BY THE TRAINEE IN THE VEHICLE.HE, ALSO , TATE STATED THAT THERE WERE TRA SH - - HE ALSO STATED THAT THERE WERE TRASH WRAPPERS IN THE CAR, AND WHILE DRIVING FROM TEXAS TO FLORIDA , THEY WOULD HAVE STOPPED TO E AT, IT IS A LONG DRIVE , AND GOTTEN SOMETHING TO DRI NK, AND THE CAR S HOULD HAVE BEEN ME SSY.

THERE ARE DIFFERENT RESPONSIBILITIES BETWEEN THE TRIAL COURTS AND APPELLATE COURTS, THAT WE ALLOW THE TRIAL COUR TS TO BE THE F INDERS OF FACT , SO IF A TRIAL JUDGE LISTENS TO TESTIMONY WHERE ONE PERSON S AYS THEY RAN THE RED LI GHT AND ANOTHER PERSON SAYS THEY DIDN'T AND THE TRIAL JUDGEDECIDES , ONE WA Y OR THE O THER, THE APPELLATE COURTW ILL NOT ORDINARILY DISTURBTHAT, SO WHY SHOULD WE DISTURB THE TRIAL COURT'S RULING HE RE?

BEC AUSE IT , THE FLORIDA HIGHWAY PAT ROL EXTENDED THE STOP, JUST BASED O N MERE HUNCH , AND THEY EVEN STATED THEY HAVE TO KEEP THEM THERE LONG EN OUGH FOR THE DOG TO ARRIVE, SO AS SO ON AS THEY PULLED THE CAR OVER , THEY IDENTIFIED THEM AS MEX ICANS , AND THEY HAD A HUNCH THAT IT HAD COCA INE.

NO REAL EV IDENCE TO SUPPORT THE TRIAL COURT'SRULE SOMETH ING.

YES, THAT IS TRUE.THERE IS NO EVIDENCE TO SUPPORT

CHIEF JUSTICE: I WANT TO REMIND YOU THAT NOW YOU AREIN THE TIME FOR YOUR CO-COUNSEL.

THAN K YOU , YOUR HO NOR.

YOUR HONORS , MAY IT PLEASE THE COURT . MY NAME IS BR UC E BO STICK , AND I A M ANSWERING THE SECOND QUESTION AT ISSUEHERE TODAY , WHETHER OR NOT THE K-9 SNIFF WAS AVIOLATION OF THE DEFENDANT'S FOURTH AMENDMENT RIGHTS. I WOULD LIKE TO START OFF BY SAYING THAT THIS K-9 SNIFFMEETS THE QUALIFICATIONS OF NOT JUST A SNIFF BUT ALSO A SEARCH IN THIS MATTER. WHILE NORMALLY A K-9 SNIFF IS NOT NECESSARILY QUALIFIEDWITH A SE ARCH, THIS K-9 SNIFF WAS CONDUCTED IN THE L INES OF AN INVESTIGATION FOR CONTRABAND. THE OFFICER ARR IVED WITH THE INTENT PUR POSE OF SPECIFICALLY FINDING CONTRABAND BUT STATED IN THE RECORD THAT HE WAS OFF , OR THAT HE WAS ARRIVING FOR THE PURPOSES OF

HAVEN'T W E HAD PLENTY OF K-9 SNIFF CASES AT AIRPORTS AND OTHER PLACES LIKE THAT, AND WE HAVE APPROVED THOSE K INDS OF SNI FFS , HAVE WE NOT? AND HE LD THAT IT WAS N'T AN UNREASONABLE INTRUS ION.

YES , YOUR HONO R, BUT I FEEL THAT WOULD BE DIFFERENT.WHEN YOU ARE AT AN AIRPORT, YOU HAVE ISSUES SUCH A S TRAVEL , MASS TRAVEL , ACROSS THE COUNTRY , ACROSS THEWORLD. IN THIS CASE , HOWEVER , THE K-9 OFFICER ARRIVED ALL THE WAY TO ANOTHER SCENE, WITH THE STATED PUR POSE OF OFFICER SAFETY.

LET ME ASK YOU THIS, IF THE K-9 OFFICER HAD ARRIVED , SAY WITHIN FIVE MI NUTES OF WHEN THE TRAFFIC STOPPED TOOK PL ACE , WOULD THE TRAFFIC STOP TOOK PLACE, W OULD YOU AGREE THAT THATWOULD BE REASONABLE?

YES, YOUR HONOR. I DO BELIEVE THAT IT WOULD HAPPEN D URING THE TIME NECESSARY TO EFFECTUATE THE PURPOSE OF THE STOP , THE K-9 SNIFF WOULD BE REASON ABLE.

OKAY.SO YOUR ARGU MENT IS REALLY BASED ON THE FACT OF , WHEN DID THE K-9 UNIT ARRIVE IN TERMS OF, THIS WAS A 45-MINUTE STOP, YOU SAY. WHAT TIME DID THE K-9 UNIT ARRIVE?

YOUR HONOR , APPROXIMATELY 35 MINUTES INTO THE SEARCH OR INTO THE STOP.

SO YOUR ARGUMENT, THEN , IS BASED ON THE TIME THAT THE K-9 UNIT GOT THERE?

WELL , THAT AND ONE MORE THING, YOUR HONOR. I F AN OFFICER IS GO ING TO BASE AN INVESTIGATION ON A REASONABLE SUSPICION, HE MUST BE ABLE TO POI NT TO REASONABLE AND ARTI CABLE FACTS THAT GAVE RISE TO SUCH SUSPICION , AS IS STATED IN ILLINOIS V COX. THE TROOPER AND , K-9 OFFICER DID N'T HAVE ANY SUCH SUSPICIONS WHEN HE ARRIVEDON THE SCENE. HE ARRIVED ON THE SC ENE AND WAS TOLD TO S EARCH FOR NARCOTICS , BEF ORE H E EVEN DISCUSSED IT WITH THE OFFICERS.

IF HE HAD ARRIVED WITHIN FIVE MINUTES, I T WOULD HAVE B EEN FINE ?

IF HE HAD HAD REASONABLE SUSPICION.

BUT MY QUESTION IS, IF THE OFFICER PU LLED THE CAR O VER AND THE OFFICER S MELLED MARIJUANA COMING FROM THE CAR , WOULD THAT, THEN , PROVIDEARTICABLE SUSPIC ION TO GO F URTHER ? PROVIDE ARTICULABLE SUSPICION TO GO FURTHER?

YES, IT WOULD , YOUR HONOR.

SO IF YOU HAVE A DOG WITH A HEIGHTENED SENSE OF S MELL , WHY CAN'T THE DOG JUST BE AN EXTENSION OF THE PO LICEOFFICER , AS FAR AS DETERMINING IF THERE MIGHT BE C ONT RABAND IN THEVEHICLE?

WELL , YOUR HONOR, FIRST OF ALL, THE OFFICERS DIDN'T SMELL ANY OF THIS , THEY DIDN'T HAVE ANY SUSPICIONANSWER THEY DIDN'T P ROVIDE SUSPICION TO SAY THE K-9OFFICER.IN FACT THE K-9 OFFICER DIDN'T SPEAK WITH THE OTHER OFFICERS WHEN HE ARRIVED. HE SIMPLY ARRIVED AND DEPLOYED HIS K-9 UNIT. HOWEVER , IN THOMAS, IT STATES THAT , IN THOMAS , I AM SORRY , YOUR HONOR , IT STATES THAT THE COND UCT CONSTITUTING THE STOP MUST BE JUSTIFIED OUT OF CONCEPTION. AS SO ON AS THE STOP BEGINS , THEY HAVE TO BE GIN WORKING ON WHAT THE STOP IS FOR.

THE STOP WAS JUSTIFIED. THE STOP WAS JUSTIFIED AS A TRAFFIC STOP.

YES, YOUR HONOR.

AND DU RING , AS LONG AS IT GOES BACK T O WHETHER IT IS FIVE MINUTES OR 35 MINUTES , AS LONG AS I T IS WITHIN THECOURSE OF THE VAL ID TRAFFIC STOP, WHAT IS W RONG WITH HAVING THE K-9 DOG THERE TO AID THEM IN DETERMINING IF THERE IS ANY OTHER THAN BASIS TO EXTEND THE ST OP?

YOUR HONOR , LIKE I SAID BEFORE, ILLINOIS V COX STATES THAT, IF YOU AREGOING TO BASE YOUR INVESTIGATION ON REASONABLE SUSPICION, WH ICH THE K-9 OFFICER SAYS THAT HE DOES , THEN YOU MUST HAVE REASONABLE AND ARTICULABLE FABLINGTS THAT GAV E FACTS THAT GAVE RISE TO THE SUSPICION.

LET ME ASK YOU A BROADER QUESTION. D OES ONE NEED TO HAVE THIS ARTICULABLE SUSPICION BE FOREA K-9 UNIT IS PERMITTED TO WALK AROUND THE VEHICLE?

NORMALLY, YOUR HONOR, NO , THAT WOULD NOT BE THE CASE.

AND IF THAT IS NOT THE CASE, THEN WHAT TRANSFORMS THESE CIRCUMSTANCES INTO THE NEEDED PROTECTION, I F WE START , BEGIN WITH THE ASSUMPTION THAT IT IS NOT AN UNREASONABLE SEARC H OR IS NOT A SEARCH , TO P ERMIT THE ANIMAL TO WALK AROUND THE VEHICLE , THEN WHAT DIFFERENCE DOES IT MAKE?

THE DIFFER ENCE IS , YOURHONOR , THAT THE K-9 OFFICER DIDN'T ARRIVE SI MPLY TO CONDUCT AN INVESTIGATION. HE DIDN'T ARRIVE SIMPLY TO SHOW UP AND DO A RANDOM SNIFF. HE STATED THAT HE ARRIVED FOR OFFICER SAFETY. HE HE ARD OVER THE RADIO, THAT THERE WAS A STOP , WITH TWO OFFICERS, WITH TWOSUBJECTS, AND HE DECIDEDTHAT IT WAS WITHIN HIS NECESSARY MEAN S TO TRAVEL ALL THE WAY TO THE STOP AND DEPLOY A K-9 UNIT AND SEARCH FOR NARCOTICS FOR THE SAFETY OF THE OFFICERS.

WELL , I F HE COULD HAVE DONE IT ANY WAY , WHAT DIFFERENCE DOES THAT WHAT HE SAID HIS PURP OSE WAS IN S HOWING UP? IN OTHER WORDS, AS JUSTICE LEWIS ASKED , IF , DU RING AN ORDINARY STOP , YOU HAVE INDICATED THAT THE STOP WASFOR THE REASONABLE AM OUNT OF T IME , WHI LE THEY WERE WRITING A TICKET , THE DOG COULD HAVE GONE ARO UND THE CAR IF THE DOG WAS WITH THEOFFICER.DO YOU AGR EE WITH THAT?

YES , YOUR HONOR , BUT NO NEOF THOSE SITUATIONS WERE IN PLACE.THIS WAS NOT AN OR DINARY TRAFFIC STOP.

IF WE HOLD OR IF WE FIND THAT THE PERIOD OF TIMEDURING WHICH THE VEHICLE WAS DETAINED WAS REASONABLE , HOWDOES THAT AFFECT YOUR ARGUMENT, ASSUMING , I N OTHER WORDS, THAT THE 45 MINUTES WAS A REASONABLE PERIO D OF TIME, HOW DOES THAT AF FECT THE ARGU MENT ON YOUR ISSUE?

WELL , YOUR HONOR, I N THAT CASE MY CO-COUNSEL AND I WOULD ST ILL CONT END THAT THE OFFICER , I AM SORRY , WHEN THE K-9 OFFICER ARRIVED, THERE WAS A PLAN AHEAD , AND HEAR ME OUT , YOUR HONOR , THERE WAS FIVE PREVIOUS TRAFFIC STOPS ON THIS DAY BY THESE OFFICERS. ALL FIVE OF THEM WERE FOR TRAFFIC VIOLATIONS. NONE OF THE FIVE ENDED INCITE AS IANS AND WITH ALL FIVE OF THE STOPS , THE K-9 OFFICER ARRIVED FOR OFFICERSAFETY. I AM NOTICING A PATTERN, YOUR HONOR.

DOES THE PAT TERN ALTER THE RULE OF LAW THAT IS APPLICABLE, WITH RE GARD TO WHETHER THE AN IMAL INVOLVEMENT IS , IN FACT , O R IS UNDER OUR L AW , A SEARCH?

YES, YOUR HONOR, I BELIEVE IT DOES.

HOW SO?

BECAUSE IF IT INTENTIONINGS OF THE OFFICERS TO EXTEND THE SCOPE OF THE STOP WERE TO EXTEND IT SO THAT THE K-9 OFFICER COULD ARRIVE, AND AS SOON AS THE K-9 OFFICER ARRIVED, IT BECOMES VOI D. THE OFFICERS INT ENDED TO EXTEND IT, SO THAT THE OFFICER , K-9 OFFICER CAN ARRIVE. HE IS QU OTED AS SAYING WEHAVE TO KE EP THEM THERE LONG ENOUGH FOR THE DOG TO ARRIVE. ACCORDING TO CASE LA W, YOUR HONOR, YOU MAY NOT DO THIS. I F YOU EXTEND IT , THEN IT IS NOT IN THE TIME NECESSARY TO EFFECTUATE A STOP.

DOESN'T THAT GO TO THE FIRST PO INT THAT YOUR COLLEAGUE ARGUED, WITH REFERENCE TO THE REASONABLENESS OF THE DETENTION?

YES, YOUR HONOR, IT D.

YOU HAVE A SEPARATE POINT.

YES.

OK AY. HOW ABOUT TE LLING US YOUR CONCLUSION ON THAT SECOND POINT.

YOUR HONOR, THE K-9 OFFICER ARRIVED , AND HE SETIT AS A SET DUTY TO DE PLOY HIS K-9 , WITHOUT ANY SUSPICIONS, WITHOUT TALKING TO ANYONE , HE ARRIVED TO DEPLOY HIS K-9 , JUST AS HE HAD DONE ON FIVE PREVIOUS STOPS , ALL FOR THE SAME CAUSE AND NONE OF WHICH FOR THE TRAFFIC CITATION. YOUR HONOR, MY TIME IS ALMOST UP. THAT IS ALL I HAVE. THANK YOU.

CHIEF JUSTICE: ALL RIGHT. WE WILL HEAR F ROM THE RESPONDENT T E AM, THE STUDENTS ARE ANDRE W BA UTA AND AMY M A NDEL . RESPONDENTS ARE READ Y? ALL RIGHT.YOU MAY PROCEED.

GOOD MORNING, YOUR HON ORS.MAY IT PLEA SE THE COURT. MY NAME IS ANDREW BAUTA , AND ALONG WITH MY CO-COUNSEL , AMY MAN DEL , WE REPRESENT THE STATE IN THIS M A TTER. TODAY THERE ARE TWO ISSUES ON APPEAL , FIRST WHETHER OR NOT THE FLO RIDA HI GHWAY HAD SUFFICIENT CA USE TO EXTEND THE SCOPE OF THE IN ITIAL STOP AND INI TIATE THE SEARCH OF THE VEHICLE. I WILL BE ADDRESSING THIS ISSUE. THE SE COND ISSUE IS WHETHER OR NOT THE DEFENDANT'S FOURTH AM ENDMENT RIGHTS WERE VIOLATED BY THE K-9 S N IFF AND MY CO-C OUNSEL WILL BE ADDRESSING THE SECOND ISSUE.

ON THE FIR ST ISSUE , CAN YOU EXPLA IN WHAT THE ARTICULATED BASIS WAS FOR THE OFFICER TO RE MOVE THE DRIVER FROM THE VEHICLE AND TAKE HIM BACK INTO THE PATROL CAR? THAT SE EMS TO BE AN UNUSUALWAY TO CONDUCT A TRAFFICSTOP.

YES, YOUR HONOR. THE, WHAT HAPPENED WAS , A FTER ASKING FOR IDENTIFICATION AND RUNNING THE T AGS THROUGH DISPATCH, THE OFFICER NOTI CED THE DISCREPANCY BET WEEN THENAMES OF THE VEHI CLE AND, THE REGISTRATION OF THE VEHICLE AND WHO WAS ACTUALLY DRIVING THE VEHICLE. THIS ELE VATED HIS SUSPICIONS.

WAS THIS THE LA ST NAME THE SAME AND THE ADDRESS FOR THE REGISTRATION OF THE VEHICLE AND THE ADDRESS FOR THE DRIVER OF THE VEHICLEWERE THE SAME.

YES.

EVEN THOUGH ONE WAS , THE CAR WAS REGISTERED IN THE N AME OF A FEMALE WITH THE SAME LAST NAME , AND THIS WAS A MA LE WITH A SAME LAST NAME , SO WHAT WAS SUSPICIOUS ABOUT THAT?

YES, SI R. IT IS PERFECTLY O K AY TO LEND YOUR CAR TO WH OM EVE R YOU WANT AND THAT , IN AND OF ITSELF WAS NOT SUSPICIOUS. HOW EVER, BOTH OFFICERS OBSERVED SUSPICIOUS BEHAVIOR. BOTH OCCU PANTS OF THEVEHICLE WERE NERVOUS. IN ADD ITION

LET ME ASK YOU THAT QUESTION. I WOULD VENTURE TO SAY THAT ANY MEMBERS OF THIS PA NEL PULLED OVER BY PO LICE MAY BREAK A LI TTLE SWEAT.

YES, YOUR HONOR, AND, A GAIN , THAT IN AND OF ITSELF , WHEN YOU LO OK AT EACH OF THE INDIVIDUALS' SUSPICIOUS BEHAVIORS, IT IS NOT THAT BIG OF A DE AL. HOWEVER, WE HAVE TO REM EMBER THAT WE ARE DEALING WITH NOT ONLY A REG ULAR OFFICER BUT A MEMBER OF THE DRUG INTERDICTION PROGRAM WITH SPECIAL TRAINING, YE ARS OF EXPERIENCE AND IN FACT HE IS A FI ELD TRAINING OFFICER , AND WHEN WE PUT THOSE OFFICERS ON THE ROAD , WE ASKED THEM TO LOOK AT THEIRCOMMON SENSE AND EXPERIENCE AND EVAL UATE THE SITUAT ION AND COME TO A DECISION , AND BOTH OFFICERS PRE SENT DECIDED THAT THERE WAS SUSPICIOUS BEHAVIOR, SO WHAT THEY DECIDED TO DO

GO TO THE OTHER. YOU HAVE TA LKED ABOUT TWO.

YES, SIR.

BO TH OF THOSE , YOU APPEAR TO CON CEDE, ARE NOT SUSPICIOUS. WHAT ELSE DO WE HAVE?

IN AND OF THEMSELVES THEY ARE NOT SUSPICIOUS. IN ADDITION TO THAT , IT APPEARED AS THO UGH THEY WERE L IVING IN SIDE THEIRVEHICLE.THERE WAS NO LUGGAGE PRESENTN ADDITION TO THAT, THE CHEVY AVALANCHE IS COM MONLY USED IN THE DRUG TRAFFICKING TRADE BE CAUSE IT HAS CONCEALED COMPARTMENTS IN THE REAR FTED VEHICLE.

SO IN THE REAR OF THEVEHICLE.

SO YOU SEEM TO BE SAYING TO ME THAT , REALLY , OFFICERS WERE N OT CONCERNED ABOUT THIS TRAFFIC STOP. THEY STARTED THINKSING , WE PROBABLY HAVE SOME PEOPLE INVOLVED IN DRUGS HERE , ANDLET'S SEE IF WE CAN REALLY FERRET THAT OUT.

WHAT HAPPENED WAS THEY WERE CLO CKED FIVE MI LES IN EXCESS OF THE SPEED LIMIT. THEY PU LLED THEM OVER WITH THE INTENT OF WRI TING A WARRANTY CITATION , BECAUSE U NDER TEN MI LES PER HOUR , IT IS A GUIDELINE THAT IS DISCRETIONARY TO THE OFFICERS. THEY CAN MA KE A DE CISION WHETHER TO ISSUE A WA RNING CITATION OR A TI CKET , IF IT IS UN DER TEN MILES AN HOUR.

IT IS EVEN LESS THAN A NORMAL TRAFFIC STOP WOULD , WHEN YOU ARE REALLY GO ING TO ISSUE A CITATION T O SOMEONE. THIS IS ONE OF THOSE , WE COULD AND WE DO N' T HAVE TO , SO THIS , R EALLY , SHOULD HAVE TAKEN EVEN LESS TIME THAN A REGULAR TRAFFIC STOP.

YES , YOUR HONOR , AND HAD NO SUSPICIONS BE EN ARE A R OUSED BY E ITHER OF THE OFFICERS, THER E WOULD HAVE BEEN NO CONTINUATION OF THE STOP. THE ORIGINAL TIMETABLE WOULD H AVE INCL UDED ON LY THE TIME NECESSARY TO W RITE THE WARNING CITATION OR ISSUE A VERBAL WARNING.

WHERE DID THE REAL SUSPICION COM E? WE HAVE ALREADY SAID THAT PEOPLE BEING NERVOUS WHEN THEY ARE STOPPED BY THEPOLICE, REALLY ISN'T A LOT. I MEAN, MOST OF U S ARE, WHEN WE ARE STOPPED BY THE POLICE , YOU CAN START FE ELING THE PERSPIRATION, SO WHERE IS THE REAL A C TS THAT ARE SUSPICIOUS. WHAT ARE THEY?

YES, YOUR HONOR. ON TOP OF THE F ACT THAT IT APPEARED AS THOU GH THEY WERE NERVOUS.THERE WAS A TYPE OF VEHICLE COMMONLY USED IN THE DRUG TRAFFICKING TRADE. IT WAS A FACT THAT IT APPEARED THEY WERE LIVING IN THE VEHICLE.THERE WAS A NUMBER OF THINGS THAT ADDED TO THIS SO THEY DECIDED TO SE PARATE THE OCCUPANTS OF THE VEHICLE , AND THIS IS ACTUALLY SO RT OF A STANDARD PROCEDURE, BECAUSE WHEN YOU HAVE MULTIPLE OCCUPANTS IN AVEHICLE , IT IS A GOOD I DEA FOR THE OFFICERS TO SEPARATE THEM.

I AM CONCERNED ABOUT THE ARGUMENT THAT THE STATE IS ADVANCING , BECAUSE WE ARE MAKING A DECISION NOT JUST FOR THIS CASE BUT FOR ALLCASES ABOUT THE LAW. WE , IN YOUR COU NSEL , PETITION , COUNSEL CONCEDED THAT THERE WAS A VALIDTRAFFIC STOP, BUT F ROM THE TIME THAT YOU ST OPPED THEVEHICLE , NOT HING ABOUT IT WAS TO TAKE CARE OF THETRAFFIC STOP, AND IT SOUNDS LIKE YOU ARE SAYING THAT ALL THAT HAS TO BE DONE FOR THERE TO GO INTO AN INVESTIGATORY STOP UNDER T ERRY VE RSUS O HIO , W OULD BE FOR PEOPLE TO BE NERVOUS AND BE DRIVING THIS PARTICULAR KIND OF VEHICLE. IS THAT WHAT THE STATE IS ADVANCING TO US?

NO, YOUR HONOR. NO. WHAT THE STATE SUBMITS IS THAT, ON TOP OF THOSE , THERE WERE A FEW OTHER AS PECTS OF THE STOP THAT WERE SUSPICIOUS . THE OCCUPANT S OF THE VEHICLE APPEARED AS THOUGH THEY HAD BEEN LIVING IN THE VEHICLE , AND THE OFFICERS' SUSPICIONS WERE ARE A ROUSED , AND THEY DECIDED TO ASK A FEW MORE QUESTIONS, TO E ITHER DI SPEL OR CONFIRM THOSE INI TIAL SUSPICIONS, SO THEY SEPARATED THE OCCUPANTS OF THE VEHICLE, WHICH IS

I THIN K THIS IS WHERE THAT IS THE QUESTION IS, DID THEY ACT ILLEGALLY AT THAT TIME, BECAUSE TAKING THE KEYS OUT OF SOME ONE'S VEHICLE AND THEN SEPARATING THEM, I MEAN , THE PASSENGERHAD DONE NOTHING , OTHER THAN BE IN THIS VEHICLE.

YOU ARE RIGHT , YOUR HO NOR , BUT THE STATE SUBMITS THAT THE REASON THAT WAS DONE WAS SO THAEKD QUESTION THE OCCUPANTS SEPARATELY, AND THE REASON YOU DO THAT IS BECAUSE OFTENTIMES , YOU WILL FIND THAT ONE MEMBER OF A VEHICLE MAY BE INFLUENCING THE OTHER OR MORE IMPORTANTLY FOR THIS MATTER , IS WHE THER THERE WERE DISCREPANCIES IN THE STORIES, WHICH IS A H UGE RED FLAG.

WHERE DID THE POLICE GET THE AUTHORITY TO T AKE THE KEYS OUT OF THE CA R?

WELL , YOUR HONOR, IT WASBECAUSE OF THE SUSPICIOUS BEHAVIOR .

YOU ALREADY TOLD US THAT THAT WASN'T ENOUGH , SUSPICIOUS BE HAVIOR, TO DETAIN THEM , YOU K NOW , BEYOND THE TIME THAT T HEY HAD TO WRITE THE TICKET. THAT IT WAS ONLY U N TIL LA TER, WHEN THEY SEPARATED THEM ANDDID MORE INTENSIVE QUESTIONING , SO I A M SURE THAT , AS A VERY EDUCATED PERSON, INCLUDING HAVING A L AW DEG REE , THAT YOU AREFAMILIAR WITH THE HI STORY OF THIS COUNTRY , AND THAT WE FOR THE A REVOLUTIONARY WAR OVER LI BERTY INTE RESTS , THE RALLYING CRY WAS "GIVE ME LIBERTY OR GIVE ME DEATH!" AND ESSENTIALLY WHAT WE ARE TALKING ABOUT HERE , IS A PERSON'S LIBERTY . NOW , TELL ME WHAT THE LEGAL JUSTIFICATION WAS , FOR THE P OLICE TO REM OVE THE K EYS TO THIS AUTOMOBILE , EFFECTIVELY , NOW , REALLY , SEIZING THE OCCUPANTS OF THAT VEHICLE , BY TAKING A WAY THEIR TRANSPORTATION. WHAT WAS THE JUSTIFICATION?

WELL , YOUR HONOR, THE STATE SUBMITS THAT , YES , EACH OF THE INDIVIDUAL CHARACTERISTICS OF THIS STOP WERE NOT ENOUGH TO JUSTIFY REMOVING THE KEYS .

WHAT HAPPENED WHEN THEY , UP TO THE TIME THEY TO OK THEKEYS? WHAT ACTS, THEY WERE NERVOUS.

YES, YOUR HONOR.

THE DRIVERS L I CENSE REGISTRATION.

THERE WAS A DISCREPANCY IN THE DRIV ERS LICENSE .

ANYTHING EL SE?

YES. IT APP EARED AS THOUGH THEYWERE LIVING IN THE VEHICLEAND THE TYPE OF THE VEHICLEAND , AGAIN

SO WHAT IS THE BIG DEAL ABOUT LIVI NG IN THE VEHICLE? WE HAVE THOUSANDS OF PE OPLE THAT LIVE IN VEHICLES , ESPECIALLY TODAY , WHEN TRAVEL IS EXTENSIVE AND WE HAVE ALL KINDS OF VEHICLES THAT ARE SUITED FOR THAT. I AM ASKING YOU, AG AIN , TELL ME THE STRONGEST POINT THAT HAD OCCURRED UP TO THAT POINT , THAT JUSTIFIED THE POLICE SEI ZING THE KEYS TO THIS VEHICLE.

WELL , YOUR HONOR, THERE IS NO ONE STRONGEST POINT , WHERE YOU HAVE TO LOOK AT IT AS A NUMBER OF COMPOUNDING VARIABLES, THAT TAKEN TOGETHER

SO IF YOU ADD UP THE LIST OF NERVOUSNESS OR THE DIFFERENCE IN THE DRIVERS LICENSE OR THE KIND OF VEHICLE IT WAS OR THEM APPEARING TO LIVE OUT OF THE VEHICLE , YOU WOULDN'T PLACE ANY OF THOSE A S , REALLY , BEING A STRONG POINT FOR DETAINING.

NO, YOUR HONOR. THE OFFICERS TOOK ALL OF THESE TOGETHER, AND THAT , COM BINED , COMBINEMENT OF THE VARIABLES, IS WHAT THE OFFICERS ACTED ON .

JUSTICE CAN TERO HAS A QUESTION.

LET ME ASK YOU THIS, HOWDO YOU RESPOND TO YOUR OPPONENT ON THE PAR T'S CHARACTERIZATION OF THAT, WHEN THE POLICE OFFICER - - WHEN YOU HAVE TWO MEXICANSHERE, THEY SAW THEM SPEED BY, AND YOU HAVE THE OFFICER S AYING THERE MAY BE DRUGS HERE, METH AMPHETAMINE OR MARIJUANA OR WHATEVER, DO YOU CONCEDE THAT?

NO, YOUR HONOR. I F YOU ARE STOP AGO VEHICLE TRAVELING 75 MILES AN HOUR, YOU ARE NOT GOING TO BE ABLE TO TELL THE RACE OF SOMEONE DRIVING BY. THE STANDARD OF REV IEW FOR THIS COURT IS YOU LOOK AT THE LEGAL ISSUES DE NOVO BUT THE FACT UAL FINDINGS OF THE LOWER COUR T ARE TO BE TAKE N AS FACT, AND THE TRIAL COURTFOUND THAT THERE WAS NO CAUSE OR CONCERN FOR R ACIAL DISCRIMINATION IN T HIS CASE . SO THE STATE DOES NOT CONCEDE THAT THERE WAS ANY RACIST COMMENTS MADE.IN FACT , THE OFFICER TESTIFIED THAT THERE WAS N EVER ANY COMMENTS MADE. THAT WAS THE TRAINEE WHO WAS W ORKING UNDER OFFICER VALDOON.

WHAT WAS THE STANDARD OF THE HEADLIGHTS?

THE VEHICLES OR THE OCCUPANCY?

THE VEHICLES.

POSSIBLY TO SEE WHET HER THERE WAS MORE THAN ONE TRAVELING IN THE VEHICLE , BUT EVEN WITH HEADLIGHT POINTING INTO AN ONCOMING CAR A T 75 MILES PER HOUR, IT IS IMPOSSIBLE THAT YOU ARE GOING TO BE ABLE TO DETERMINE THE RACE OF THE PERSON INSIDE THE VEHICLE. MY TIME IS ALMOST UP .

WHAT ABOUT THE STATEMENTTHAT SAID WE NEED TO EXTEND THIS STOP , UNTIL S COTT G ETS HERE WITH THE K-9 ?

AGA IN, YOUR HONOR , THATWAS THE SAME COMMENT THAT THE TRAINEE SAID WAS SAID , BUT OFFICER VALDOON DID NOT CON FIRM THAT AND THE TRIALCOURT FOUND NO CAUSE.

ONE OF THE OTHER OFFICERS ACTUALLY SAID THAT THAT STATEMENT WAS MADE.

YES. O NE OF THE TRAINEES SAID THAT THAT STATEMENT WAS MADE , CORRECT. MY TIME IS UP , YOUR HONORS. THANK YOU FOR YOUR TIME.

CHIEF JUSTICE: MS. MANDEL.

GOOD MORNING RNS YOUR HONORS. A MY MAN DEL ON BEHALF OF THE STA LE. I W ILL BE ADDRESSING THE SECOND QUESTION O F THE CONSTITUTIONALITY IN REGARD TO A VIOLATION OF THE FOURTH AMENDMENT RIGHTS OF THE PETITIONER, TO NY MENENDEZ. FIRST, I WOULD LIKE TO BE GIN TO ELAB ORATE ONE POINT OF M Y CO-COUNSEL, IN THAT THE VEHICLE COULD, THE OCCU PANTS OF THE VEHICLE COULD BE SEPARATED UNDER CA REY V O HIO BECAUSE THE CRIME HAD BEEN COMMITTED.THAT CRIME WAS SPEEDING. THAT GIVE S THE JUSTIF ICATION TO SEPARATE THE

IS THAT A TRAFFICVIOLATION?

A TRAFFIC VIOLATION, YOURHONOR , IS STILL BREAKING THE LAW.IT IS STILL A VIOLATION OF THE LAW H IN T E RRY V OHIO , IT SAYS THAT, IF A CRIME HAS BEEN COMM ITTED , THAT A SEPARATION OR DETAINMENT FOR OFFICER SAFETY , IS LEGITIMATE.

WHAT WOULD, WHAT IN THIS SITUATION , MADE THE OFFICER S FEARFUL OF THEIR SAFETY?

AS MY CO-COUNSEL HAS STATED , THERE WERE A N UMBER OF VALU ABLES VARIABLES , INCLUDING THE CAR APPEARINGTHAT THEY WERE LIVING IN IT. THERE WERE NO LUGGAGE

DOES THAT MAKE YOU FEAR FOR YOUR SAFETY?

IN TERRY V OHIO , ONLY IF A CR IME HAS BEEN COMMITTED. THAT IS THE STANDARD.IF A CRIME HAS BEEN COMMITTED, THEN YOU CANSEPARATE FOR OFFICER SAFETY . IN A CASE WITH TWO OCCUPANTS OF A VEHICLE , AS MY CO-COUNSEL STATED, IT IS POSSIBLE THAT ONE HAD BEEN , ONE PARTY INVOLVED HAD BEEN INFLUENCING ANO THER. THUS TO GET THE F ULL EXTENT OF WHAT WAS GOING ON , THE OFFICERS COULD SEPARATE THEM.

DO YOU HAVE ANY OTHER CASE BUT TERRY, WHICH INVOLVED A REASONABLE SUSPICION , THAT A CRIME M IGHT BE COM MITTED , TO SAY THAT A TRAFFIC STOP, WHICH IS NOT A CRIME , AND THEY WEREN'T DRIVING UNDER THEINFLUENCE. IT WASN'T RECKLESS DRIVING. THEY WERE BARREL EVEN S PEEDING , WERE BA RELY E VEN SPEEDING , WOULD JUSTIFY TURNING A TRACK STOP INTO A M ORE EXTENSIVE INVESTIGA TORYSTOP, WHERE , UNDER YOUR THEORY , THEY WOULD BE ABLE TO PAT THE PASSENGER AND THE DRIVER DOWN.COULD THEY DO THAT?

YOUR HONOR, NO. THEY CAN EXTEND THE STOP UNDER THE GUIDELINES O F ILLINOIS V CO X. A REASONABLE SUSPICION, BASED ON THE VARIABLE S THAT MY CO-COUNSEL SPOKE OF , HAD BEEN ARE A ROUSED IN OFFICER VALDOON. U NDER ILLI NOIS V CO X, THERE FOR A WA RRANT SE ARCH CAN BE INITIATED . THE WARRANT SE ARCH WAS STILLGOING ON , AT THE TIME THAT TROOPER SCOTT ARRIVED WITH THE K-9 . THERE WAS NO EXTENS ION OF THE STOP, THE INITIAL STOP . IT WAS STILL FULLY IN PROGRESS, WHEN THE K-9 ARRIVED.

WELL, YOUR CASE WOULD BE STRONGER , IF THE , AND IGUESS WE KEE P ON G OING , IT SEEMS LIKE YOU CONCEDED THAT , AT SOME POINT , AND YOU , CERTAINLY YOUR CO-C OUNSEL CONCEDED THAT AT SOME POINT, THE TRAFFIC STOP T URNED INTO SOMETHING MORE, BECAUSE OF SOME SUSPICIONS , AND IT WASN'T UNTIL THEN, THAT THE K -9 DO GS ARRIVED. NOW , I WANT TO AS K YOU THE Q UESTION , DO THE K-9 , IS IT YOUR VIEW THAT THE K-9 COULD HAVE COME RIGHT AT THEBEGINNING OF THE TRAFFIC STOP AND SNIFFED AR OUND THE VEHICLE?

THE TIME ISS UE, YOUR HONOR, IN T HIS MA TTER , IS NOT THE PRIMARY , IT IS AN ISSUE , BUT IT IS NO T THE PRIMARY ISSUE. THE PRIMARY ISSUE IS THAT THEY HAD JUSTIFICATION, NO M ATTER WHAT , HOW LONG THE STOP OCCU RRED , TO JUSTIFY A SEARCH, BECA USE, NOT A SEARCH, A SNIFF , BECAUSE THE STOP WAS STILL GOING ON BECAUSE OF THE WARRANT SEARCH. UNDER MAXWELL

NOW , A GAIN , THE WARRANT SEARCH, MEANING THE SEARCH FOR OUTSTANDING WARRANTS FOR THESE INDIVIDUALS?

YES, YOUR HONOR.

YOU ARE SAYING THAT THAT IS SOMETHING THAT CAN BE DONE DURING THE COURSE A FTER ROUTINE TRAFFIC STOP, THAT THEY CAN SEARCH FOR OUTSTANDING WARRANTS?

UNDER ILLINOIS , I F ILLINOIS V COX , IF REASONABLE SUSPICIONS WHICHTHEY WERE IN THIS CASE , WERE ARE A ROUSED, THEN , YES , A WARRANT SEARCH COULD BE MADE.

IF WE AG REE THAT THERE WAS A REASONABLE SUSPICION AROUSED , WASN 'T THAT ARE A ROUSED RI GHT AT THE BEGINNING OF THIS STOP, SO WHY , STILL , DID IT TAKE 45 MINUTES TO EVEN RUN THE TAG OR EVEN A RECORD SEARCH?

IT DEPENDS ON , I ME AN, THE COMPUTER. THEY STARTED THE WARRANT SEARCH, BECAUSE THE REASONABLE SUSPICIONS WERE AROUSED WITH THE TAG AND WITH

DID THAT START IMMEDIATELY?

NO , YOUR HONOR, IT WAS NOT. A FTER THE SUSPICIONS WERE AROUSED AFTER THEY HAD RAN THE IN ITIAL C HECK AND SAW ANOTHER VARIABLE.

I AM CONCERNED ABOUT WHAT WAS SUSPICIOUS ABOUT THE INITIAL CHECK. THE INITIAL CHECK WAS A T CARWAS IN FACT REGISTERED T O SOMEONE WITH THE SAME L AST N AME AS THE DRIVER. THAT HE HAD A VALID DRIVERS LICENSE. HE HAD PRODUCED INSURANCE. SO WHAT WAS SUSPICIOUS ABOUT THAT?

THAT IN AND OF IT SELF WAS NOT , B UT WE HAVE PEOPLE TRAVELING AC ROSS STATE LINES WITH NO BAGGAGE WHATSOEVER . L OOKING LIKE THEY ARE LIVING OUT OF THE CAR, WITH WRAPPERS ABOUT THE ENTIRE CABIN OF THE CAR. WE HAVE PE OPLE LOOKING NERVOUS.Y ES, IF YOU ARE PULLED OVER BY A PO LICE OFFICER, YOU WILL BE NERVOUS , BUT IT WAS ESPECIALLY NOTED BY BOTH OFFICERS ON THE SCENE , THAT THEY LOOKED NERVOU S. THOSE VARIABLE S , ALL PUT TOGETHER, M ADE THE STOP , MADE REASONABLE SUSPICION AROUSE IN THE MIND OF TROOPER VALDOON , THERE BY ALLOWING THE EXTENSION OF THE STOP.IF I MAY , CAN I ADDRESS THESECOND ISSUE ?

CHIEF JUSTIC E: I THOUGHTWE WERE ON THE SE COND ISSUE.

NO. THIS IS STILL CLARIFYING THE FIRST. THANK YOU , YOUR HONOR. ALLOWING A PROPERLY TRAINED K-9 TO SNIFF THE VEHICLETHAT WAS DE TAINED PURSUANT TO A LAWFUL TRAFFIC STOP , DID NOT CHANGE THE CHARACTER OF THE STOP. THAT WAS LAWFUL AT ITS INCEPTION, AND OTHERWISE EXECUTED IN A REASONABLE MANNER. FURTHERMORE

MAY I ASK YOU JUST A QUESTION ON THAT . HERE WE ARE DE ALING WITH AN ANIMAL , AND WE ARE DEALINGWITH AN ANIMAL THAT INTERACTS WITH A HUMAN. IT DOES NOT AC T BY ITSELF. AND DO W E , WE HAVE LEARNED F ROM CASE S THAT ARE OUR HIGH COURT HAS TAUGHT US , THAT SOME TYPE OF INVASION INTO THE INSIDE OF THE HOME , FOR EXAMPLE, IF THAT MAY RE VEAL INNOCENT AND PRI VATE CON DUCT THAT I S NONCRIMINAL , THEN THAT IS AN U N LAWFUL INVA SION IN THE K ILO CASE , THEN UNLESS WE HAVE A PERFECT ANIMAL , A ROBOTIC COMPUTERIZED ANIMAL , HO W CAN WE PROTECT AGAINST THE DOGS ALERTING TO MONEY IN A POCKET OR MONEY IN A PURSETHAT HAS BEEN PO SSIBLY TAINTED , JUST WITH THE S MELL OF SOME O F THE L I STED CONTRABAND?

FIRS T, YOUR HONOR, IN A HOME AS YOU MENTIONED BE FORE , THERE ISN'T A HEIGHTENED EXPECT THERE IS A HEIGHTENED EX PECTATION OF PRIVACY , BUT IN A VEHICLE , PURSUANT TO INDIANAPOLIS VERSUS THOMAS , THERE IS NOT THAT SAME EXPECTATION OF PRIVACY IN A VEHICLE TRAVELING ON AN OPEN ROAD.IN REGARD TO THE SECOND PART OF YOUR QU ESTION , THE DOG IS NOT A PERFECT ANIM AL. YES , THAT IS TRUE. HOWEVER , K-9 ZOE , THE DOG IN QUESTION, WAS PROP ERLY TRAINED. SHE ALERTED TO THE PRESENCE OF DRUGS IN THIS MANNER. IN , PURSUANT TO US VE RSUS REED, ANY LAWFUL , ANY LEGITIMATE BUSINESS, A K-9 SEARCH, A K-9 SNIFF IS L EGAL, AND PURS UANT TO, BOTH , PLACEAND WILLIAMS , IT IS, A K-9 SNIFF IS NOT A SEARCH. THERE BY UNDER THE FOURTH AMENDMENT, IS NO FOURTH AMENDMENT RIGHT WOULD BE VIOLATED, AS THE SNIFF WASNOT A SEARCH.

SPEAKING OF ZOE , I SN'T IT TRUE THAT ZOE HAD FALSE-ALERTED BEFORE, AND IN REASONABLE DOUBT O R DER AND I N ORDER TO NOT ALLOW A K-9 SNIFF TO GO COMPLETELY HOG WIL D, THERE HAS TO BE A N ABILITY THAT THE K-9 WILL ONLY ALERT TO DRUGS OR CONTRABAND AND ZOE HADN'T BEEN PERFECT IN THIS REGARD.DOES THAT , THEN , TAKE A WAY HIS RELIABILIT Y?

NO, YOUR HONOR. IT DOES NOT. AN ANIMAL , ANY ANIMAL , B E IT A DO ING OR A HUMAN , CAN BE IT A DO G OR A HUMAN, CANNOT BE EXPE CTED TO BE PERFECT, 10 ON PERCENT OF THE TIME . IN ONE INS TANCE 1 ON 0 PERCENT OF THE TIME. IN ONE I N 1 00 PERC ENT OF THE TIME. IN ONE INST ANCE , THE DOG ZOEDID NOT ALERT WHEN THERE WAS A PRE SENCE OF NARCOTICS. IT IS NOT A REASONABLE DE NOVO REVIEW OF THIS COURT TO DETERMINE IF THE DRUGS WERE DISCOVERED ILLEGA LLY . THAT WAS DETERMINED BY THETRIAL COURT, AND OUR REVIEW DE NOVO DOES NOT REQUIRE THE REVIEW OF THE ACTUAL FACTS IN THIS CASE. THE FACTS ARE ZOE DID ALERTIN THIS CASE TO THE PRES ENCE OF NARC OTICS.

WHAT ABOUT THE FACT THAT OFFICER SCOTT AND ZOE HAD ACTUALLY THAT NIGHT , COME TO AT LE AST FIVE OTHER TRAFFICSTOPS. DOESN'T THAT LEA D US TO BELIEVE THAT THIS WASN'T REALLY JUST AN IN NOCENT TRAFFIC STOP, THAT THE OFFICERS WERE REALLY OUT THERE THAT NIGHT , TR YING TO FIND PEOPLE WITH DRUGS ?

YOUR HONOR, FIRST OF ALL , THE VEHICLE WAS PULLED OVER FOR SPEEDING. NO OTHER REASON , OTHER THAN SPEEDING. SECOND , WHILE TR OOPER SC OTT AND ZOE DID ARRIVE TO OTHER STOPS THAT DAY , IT IS NOT, I BELIEVE MY TIME IS U P. MAY I PL EASE FINISH MY THOUGHT.

I JUST WANT TO KNOW IF THAT IS A FACTOR WE SHOULD BE TAKING IT INTO CONSIDERATION HERE.

YOUR HONOR, TROOPER SCOTT WAS NEVER CONTACTED TO COME TO THE SCENE. HE CAME OF HIS O WN COMING . I CAN'T THINK OF THE WORD ATTHE MO MENT. B UT HE CAME COMPLETELY O N HIS OWN.YES, IN FIV E OTHER INSTANCES THIS VERY DAY, HE HAD COME. HOWEVER , BECAUSE HE WAS NEVER CALLED ,