[00:00:20] Speaker 04:
The officers violated the Fourth Amendment by searching the car in Mr. Tran's backpack without probable cause and by prolonging his detention in violation of Rodriguez.

[00:00:33] Speaker 04:
I'd like to start by focusing on

[00:00:50] Speaker 04:
Those two actions specifically that I'm referring to is first when the officers frisked Mr. Tran and the driver and delayed by more than two minutes that way.

[00:01:17] Speaker 01:
burning marijuana and also the fact that when he asked Mr. I guess it was Nguyen to step out of the car and conducting the pat down frisk, he admitted that he had a knife in his pocket and it was at that point that he found a container of marijuana.

[00:01:38] Speaker 01:
Why does that not now ripen into reasonable suspicion that the driver may be operating under the influence of marijuana?

[00:01:46] Speaker 04:
So we're raising two grounds.

[00:03:28] Speaker 04:
we don't

[00:04:01] Speaker 01:
seems to me that for officer safety purposes, the officer when he made the stop was by himself.

[00:04:48] Speaker 04:
I believe that that admission happened after the frisk had already begun.

[00:04:52] Speaker 01:
And then the question, if we even... Wouldn't the frisk be justified by the two factors, one, the smell of burned marijuana, but also the fact they got a loan officer and two individuals in the car?

[00:05:37] Speaker 04:
But I think that's an easier argument.

[00:05:40] Speaker 04:
And that alone, and I think the government's brief kind of indicates that it wasn't a delay to run the passenger's ID, because they were going to do the driver anyway.

[00:05:49] Speaker 04:
But the officer's body cam video clearly shows that he ran the IDs one at a time.

[00:05:54] Speaker 04:
So at video exhibit E, starting at minutes at 7 to 24.

[00:05:59] Speaker 04:
What does one at a time mean separately, or he didn't take

[00:06:30] Speaker 04:
going to run the driver anyway meant that there was no delay that resulted from

[00:07:05] Speaker 04:
stop rendering it rendered the seizure unlawful at that point.

[00:07:09] Speaker 01:
The fact that the car registration had been expired for two years and there were scratch marks on the license plate indicating that the tab that may have been there before was now missing and the officer was suspicious that the car might be stolen.

[00:07:30] Speaker 01:
If that were the case wouldn't it be reasonable

[00:08:14] Speaker 01:
raise more questions.

[00:08:56] Speaker 04:
the valid insurance on the vehicle, the valid driver's license, I just don't think there was probable cause of vehicle theft here, especially given that the officers did all these unrelated investigations instead of taking the basic step of running the VIN, which would have been the fastest way and the most diligent way to corroborate or dispel their suspicions.

[00:09:17] Speaker 04:
You have about a minute left.

[00:09:18] Speaker 04:
Do you want to reserve?

[00:09:19] Speaker 04:
Yes, thank you very much.

[00:09:20] Speaker 03:
And we'll give you two minutes for a bottle.

[00:09:21] Speaker 03:
Thank you.

[00:09:32] Speaker 00:
Good morning, Your Honors.

[00:09:33] Speaker 00:
May it please the Court, Melissa Rabbani for the United States.

[00:09:39] Speaker 00:
This Court has a straightforward path to affirming the District Court's decision, which is that under the Vazquez decision that we've cited in our briefs, it's clear that the smell of burned marijuana with other factors does support probable cause to search a vehicle for evidence of driving under the influence.

[00:09:58] Speaker 00:
Here, as the court has noted in its questions to Appellate's Council, it was not controverted in the record that the officer smelled burned marijuana.

[00:10:08] Speaker 00:
His initial report said he smelled marijuana.

[00:10:11] Speaker 00:
He clarified in a declaration later that it was burned marijuana, and there was no declaration to the contrary from the defendant.

[00:10:19] Speaker 00:
There was nothing from defendant or the driver saying, neither of us had smoked in a while.

[00:10:24] Speaker 00:
The car couldn't have smelled that way.

[00:10:25] Speaker 00:
And in fact, that would have been

[00:10:28] Speaker 00:
that the driver did ultimately fail the field sobriety test.

[00:10:32] Speaker 01:
And was it consistent in when he last smoked marijuana?

[00:10:36] Speaker 00:
It was, Your Honor.

[00:10:37] Speaker 00:
I believe he admitted that he had smoked earlier that day.

[00:10:40] Speaker 00:
Right.

[00:10:41] Speaker 00:
Appellant's counsel noted that the smell of marijuana can linger for hours, but so can the effects of marijuana.

[00:10:47] Speaker 00:
After smoking it, even a few hours later, it likely isn't safe to drive, and in this case, it was not.

[00:10:57] Speaker 00:
As for the prolongation issue, the Appellant's Council focuses on the search of the passenger's ID, but as the court has noted, there was probable cause and certainly at least reasonable suspicion that the vehicle was stolen, which does support running the passenger's ID to see whether the car is registered to him, whether there's any outstanding warrant for vehicle theft or anything along those lines.

[00:11:24] Speaker 00:
The defense has pointed to the fact that the car hadn't been reported as stolen, and maybe that diminishes your suspicion that the car is stolen, but it certainly doesn't dispel it.

[00:11:36] Speaker 00:
And together with the fact that the registration had been expired so long, the tags were torn off, which is unusual.

[00:11:44] Speaker 00:
The explanations, as the court noted,

[00:11:56] Speaker 00:
off the existing tags and just told him to fix it.

[00:11:59] Speaker 00:
And based on all of that, even though perhaps the theft hadn't been reported, there is still probable cause to believe that the car had been stolen.

[00:12:11] Speaker 00:
So defense points to some factors that may have... Do you need probable cause?

[00:12:16] Speaker 01:
Or is reasonable suspicion at that point sufficient to justify prolonging the investigation in order to dispel or confirm those suspicions?

[00:12:26] Speaker 00:
Reasonable suspicion is sufficient.

[00:12:29] Speaker 00:
I appreciate that question.

[00:12:30] Speaker 00:
The government believes there is probable cause on both the DUI and the theft.

[00:12:35] Speaker 00:
But as far as the prolongation argument goes, reasonable suspicion is enough.

[00:12:39] Speaker 00:
And there certainly is that taking all the facts that we just went through with respect to vehicle theft.

[00:13:12] Speaker 01:
under the influence.

[00:13:15] Speaker 00:
Agreed, Your Honor.

[00:13:15] Speaker 00:
I know that the appellant's brief makes some arguments about the order in which things are done and the field sobriety test wasn't conducted until a certain point, but it's clear from the officer's declaration, and I believe the body cam, that he is in fact pursuing two investigations at once.

[00:13:32] Speaker 00:
He tells the driver, I've got backup coming.

[00:13:35] Speaker 00:
I have to figure out who actually owns this car and whether you're authorized to drive it, even if it does belong to your mom, as you've said.

[00:13:43] Speaker 00:
And I also have to figure out if you're okay to drive.

[00:13:46] Speaker 00:
And so, he's doing both of those things at once.

[00:13:48] Speaker 01:
So, while he's searching the car for evidence of either crime, he's not yet conducting the field sobriety test, but there's nothing- Well, if you want to use the term field sobriety test, you're actually referring to drug recognition evidence, because it seemed to me that at some point there was another officer who was, I guess, trained

[00:14:17] Speaker 00:
Yes, there was one done in the field as they understand it from the record and so they looked at I think there was like a greenish coating on his tongue and they looked at the eyelid tremors, which is I think what your honor is referring to.

[00:14:30] Speaker 00:
They took his heart rate and then after they took him back to the police station, I think there was additional and a blood test as well.

[00:14:39] Speaker 00:
But you know the field sobriety test.

[00:14:41] Speaker 00:
It's true wasn't done until some of the other steps had been taken,

[00:14:46] Speaker 00:
The government contends that at every moment in those 20 minutes that the defense sites, the officers were diligently pursuing both of those investigations into the vehicle theft and into whether the driver was driving under the influence.

[00:15:03] Speaker 00:
There's also a separate misdemeanor that I don't think the appellant has mentioned, which is it is a misdemeanor for anyone, I believe, to smoke in a moving vehicle, and that could have involved the passenger as well.

[00:15:25] Speaker 00:
As for the frisk, just to address briefly, I would agree with your honors that officer safety did justify frisking both passengers.

[00:15:36] Speaker 00:
Given that he was alone, there was the smell of marijuana.

[00:15:39] Speaker 00:
The driver admitted to having a knife in his pocket.

[00:15:42] Speaker 00:
He was also argumentative and resistant to getting out of the car.

[00:15:47] Speaker 00:
And I believe Mr. Tran himself also admitted that he had a knife in his pocket.

[00:15:52] Speaker 00:
And so the frisks in both cases

[00:15:57] Speaker 00:
that the officers had with respect to both vehicle theft and driving under the influence.

[00:16:11] Speaker 00:
One of the last points I wanted to address

[00:16:27] Speaker 00:
were clear and so it was easy for the officer to tell very quickly what was and wasn't in the driver's pocket correct the driver's pocket looks like a glass jar and it's I think it's pretty clear on the body camera footage you can see inside what's in there and then what's found in mr. trans backpack is described as a type

[00:16:55] Speaker 00:
He did say he had marijuana in the backpack and I think 1 of the points of Helen is making is that.

[00:17:01] Speaker 00:
You know, obviously they weren't looking for burned marijuana because they found containers of marijuana and didn't search them, but it was clear from looking at them from the outside that they didn't contain burned marijuana or any kind of paraphernalia.

[00:17:29] Speaker 02:
And I'm happy to address any other points or submit if the court has no further questions.

[00:18:27] Speaker 01:
and a misdemeanor.

[00:18:29] Speaker 01:
Wouldn't the police still have the right to conduct an investigation to determine whether the vehicle was a misdemeanor?

[00:18:34] Speaker 04:
Investigation, but I don't believe a search of a vehicle – a generally probable cause to conduct a search is based on arrestable offenses as opposed to just a mere, like, fine.

[00:18:45] Speaker 04:
So they wouldn't – they wouldn't – In what case do you have to support that proposition?

[00:18:49] Speaker 04:
I do not have my fingertips.

[00:18:50] Speaker 04:
I'm sorry.

[00:18:51] Speaker 04:
I could follow up on that.

[00:18:52] Speaker 04:
So, for example, in a traffic stop, a traffic violation would not usually be a basis to search a car.

[00:18:58] Speaker 04:
It would be a probable cause of a crime.