Second Sniff, Second Search and Seizure of Heroin Upheld

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United States v. Bettis, 2020 (8th Cir. 2020)

Informants told police CJ Bettis was selling heroin in the Minneapolis area. Bettis had prior convictions for heroin sales in Chicago. During an earlier search of Bettis’ residence, officers found 80 grams of heroin and fake identification. Officers learned Bettis was in Chicago and likely driving a Toyota Camry rented by his wife, Natasha Daniels. The officers set up surveillance on his return route.

A State Patrol trooper located the Camry on the interstate and stopped Bettis for speeding. Bettis produced photo identification in the name of “Vernon Silas,” but the officer recognized Bettis. Bettis did not have a valid driver license. The car was a rental with Daniels listed as the sole authorized driver. Bettis referred to Daniels as “a friend” of his. Daniels was not in the car and neither Bettis nor his passenger, Dalia Taha, were listed on the rental contract. The car was overdue on the return by one day.

The officer could smell the strong odor of marijuana as he stood outside the car. He separated Bettis and Taha and questioned them separately. Bettis claimed he had traveled to Chicago with his son and attended a birthday party with Taha. Bettis admitted he and Taha had smoked marijuana in the car. Taha said she had been at a funeral—not a birthday party—with Bettis, but she could not remember the decedent’s name. She admitted she had smoked marijuana but not in the rental car.

When a second officer arrived, the first officer deployed his drug detector dog for a sniff of the car. The dog gave a positive response. A roadside search revealed marijuana fragments in the console. Suspecting Bettis might have placed the marijuana to mask the odors of other drugs, and recognizing the difficulty of a more thorough search in the dark on the side of the interstate, the officers decided to tow the car to a police facility for a more thorough search. The officers dropped Bettis and Taha off at a nearby gas station.

The next day, a detector dog team performed a second sniff, again with a positive response. Officers obtained a search warrant and conducted a second search. They located 200 grams of heroin in the driver’s headrest. Bettis was charged with one count of possession of heroin with intent to distribute and two counts of distribution of heroin. Bettis challenged the second search, arguing once the officers searched the car on the roadside and found only marijuana fragments, the officers no longer had probable cause to search for more drugs.

Before resolving Bettis’ claim of an improper second search, the court considered whether Bettis, as an unlicensed, unauthorized driver of the overdue rental car, had any standing to challenge the search.

Before resolving Bettis’ claim of an improper second search, the court considered whether Bettis, as an unlicensed, unauthorized driver of the overdue rental car, had any standing to challenge the search. In Byrd v. United States (138 S. Ct. 1518 (2018)), the Supreme Court held, “the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.” However, the driver might not have a reasonable expectation of privacy if he “intentionally used a third party as a straw man in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime.”

Bettis could establish the necessary expectation of privacy and right to challenge the search with evidence of consent or permission from Daniels, the renter on the contract. The court discounted the argument that Bettis used Daniels as a straw woman to rent the car to help him commit a crime. Daniels testified she did not list Bettis on the rental contract in order to save money and because she did not anticipate he would be driving it. The court observed, “without more, a husband and wife sharing a rental car is not inherently suspicious, nor does it suggest a strawman situation.” Thus, the court held Bettis could properly challenge the search.

Bettis did not challenge the stop for speeding, the first dog sniff or the first search. He simply claimed that concluding the roadside search meant the officers could go no further based on the initial dog sniff and positive response. The court disagreed.

The scope of a search based on the automobile exception to the Fourth Amendment warrant requirement extends to “the search of every part of the vehicle and its contents that may conceal the object of the search” (United States v. Ross, 456 U.S. 798 (1982)). Officers “may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody,” as stated in Michigan v. Thomas (458 U.S. 259 (1982)). The court stated it had previously “held that probable cause ‘did not “dissipate” simply because it took a long time to complete a reasonable and thorough search of the car…. Indeed, some searches ‘require dismantling of the automobile to recover the drugs.’”

The officers had reason to believe Bettis was concealing additional drugs in the car. Bettis gave a false name and false identification. He and Taha told inconsistent stories about smoking marijuana and the purpose of the trip to Chicago. Bettis was a known heroin dealer. The officers knew dealers sometimes used marijuana fragments to mask the odor of other drugs. Moreover, Bettis had no valid license and could not lawfully drive the rental car. The contract showed the return was overdue, justifying holding the car for the rental company.

The officers’ meticulous investigation, coupled with careful reporting of each element of the investigation, laid the groundwork for the court to uphold the second search. Additionally, the officers obtained a search warrant authorizing the second search. Thus, Bettis’ convictions and 10-year sentence stand.

Ken Wallentine

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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