Confidential Informant Was Reliable: Stop and Search Upheld

by | October 22, 2020

United States v. Simpkins, 2020 WL 6067397 (1st Cir. 2020)

State troopers arrested a driver in possession of a large quantity of oxycodone pills and Suboxone strips. That driver subsequently became a confidential informant (CI). The CI told investigators he bought the pills and strips from “Rob” in Rhode Island. CI showed text messages between CI and Rob, discussing prices and quantities of “pinks,” “green ones” and “strips.” CI provided a cell phone number for Rob and a description of Rob’s house and car, and told them that, while CI usually traveled to Rob to buy drugs, Rob sometimes traveled to Maine.

Investigators found that Rob’s cell phone number belonged to Robert Simpkins. At the investigators’ direction, CI told Rob he was not coming to Rhode Island soon and asked Rob to deliver drugs to him in Maine. On the day of the planned delivery trip, investigators watched Simpkins’ Rhode Island home. They saw him load several items into his car, including a box he placed in the trunk. Between loads, Simpkins locked his car and kept a wary eye on his surroundings. Before Simpkins left for Maine, CI called him to discuss a final price. Simpkins responded by texting that he was “heading out about 2” and was looking for “3850 if it ain’t short.”

Just after Simpkins drove across the Maine border, troopers stopped him. They executed a high-risk stop because they had information that he possessed several guns. A trooper asked Simpkins about weapons and he replied he had only a pocketknife. After handcuffing and frisking him, a trooper found a bulge and asked Simpkins about it. He said it was a “little bit of fentanyl.”

A drug detector dog did not indicate the presence of a controlled substances odor. The troopers searched the car and found an envelope containing Suboxone strips in the passenger compartment and an electrical ballast device in the trunk. Concealed behind a panel on the ballast was a smell-resistant “Stink Sack” holding quantities of oxycodone. Stink Sacks are marketed to cannabis distributers as packaging that contains the odor of the drugs. Upon seeing a trooper open the ballast, Simpkins blurted out that “she found it all.”

A warrantless search of an automobile may proceed so long as officers have probable cause to believe contraband is within the particular vehicle (California v. Acevedo, 500 U.S. 565 (1991)). The appellate court held “this tableau is redolent of probable cause.” CI had firsthand knowledge of Simpkins’ drug dealing, CI’s information was corroborated through monitored communications and surveillance, and the information would lead an experienced officer to believe Simpkins was trafficking in drugs.

Simpkins argued the detector dog’s non-alert defeated the probable cause to search his car. The court disagreed. The dog was not trained and certified to detect the odor of oxycodone. Moreover, the court cited “a near universal recognition that a drug-sniffing dog’s failure to alert does not necessarily destroy probable cause.” The court did not mention the drug odor-concealing packaging.

A warrantless search of an automobile may proceed so long as officers have probable cause to believe contraband is within the particular vehicle.

Simpkins also challenged admission of his statements, claiming a Miranda violation. The court held the trooper’s questioning about the bulge, particularly in light of information that Simpkins had numerous weapons but claimed to have only a pocketknife, was allowed under the public safety exception to the Miranda rule. This exception allows the admission of unwarned custodial statements given in response to “questions necessary to secure own safety or the safety of the public.” The court noted “an accused who wishes to invoke his right to remain silent must do so in an unambiguous manner.” Blurting out “she found it all” wasn’t remaining silent.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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