A federal appeals court on Wednesday threw out a federal judge's ruling suppressing as evidence more than 1,673 pounds of marijuana found during a 2012 traffic stop near Lonoke.
A three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis overturned the pretrial ruling made late last year by U.S. District Judge Kristine Baker, who found that a state trooper who stopped two men's recreational vehicle on Interstate 40 lacked "an objectively reasonable basis" for making the traffic stop.
A federal grand jury indicted both men, Raymond Demilia and Jerome Derrick, on Aug. 8, 2012. Each man was charged with possessing more than 100 kilograms, or about 220.5 pounds, of marijuana with the intent to deliver on July 17, 2012. Their trial has been on hold while prosecutors' appeal of Baker's ruling was pending at the 8th Circuit.
In a 13-page opinion issued Wednesday, U.S. Circuit Judge Roger Wollman of Sioux Falls, S.D., wrote that Trooper Victor Coleman of the state police saw the vehicle cross the fog line and drift onto the shoulder of the interstate twice and a third time after the trooper activated his blue lights. Coleman said the driver, Demilia, didn't pull over until the trooper activated his siren.
In response to the trooper's questions, Demilia said he owned the motor home and was traveling from Colorado. The trooper noted that Demilia "seemed anxious and nervous" and denied there was anything illegal in the vehicle. After Demilia verbally agreed to a search, the trooper found more than 1,673 pounds of marijuana inside, according to court documents.
During a suppression hearing, the veteran trooper, who teaches drug-interdiction techniques and has made about 50,000 traffic stops, cited a section of state law to justify the traffic stop for crossing a fog line -- the white line on the right side of the road that is designed to guide drivers in heavy fog. Baker said the section of law Coleman cited wasn't about crossing fog lines. She noted that Arkansas Code 27-68-103, which he cited, makes it illegal to drive over, upon or across any curb, central dividing section, or other separation or dividing line or to drive outside the proper lane. Coleman testified that the law seemed to apply in this case because he considered the fog line to be a "dividing line."
Baker, however, sided with attorneys Lee Short and Annie Depper of the James Law Firm, who argued that the law's purpose was to prevent driving across the median or other dividing indicators of oncoming traffic.
Baker later noted in a written ruling that federal prosecutors appeared to assert in a post-hearing brief that Coleman was actually relying on Arkansas Code 27-51-301 or Arkansas Code 27-51-302. However, she found that prosecutors had waived that argument at the suppression hearing, and she refused to consider it.
Wollman wrote, on behalf of the 8th Circuit panel, that generally, the decision to stop a vehicle doesn't violate the Fourth Amendment as long as the officer has probable cause to believe that a traffic violation has occurred, even if the officer invokes the wrong offense.
"We disagree that Coleman lacked probable cause merely because he relied on the wrong statute," Wollman wrote, adding that the appellate court also disagreed that prosecutors had waived their argument that Coleman had actually relied on another section of law.
The three-judge panel -- Wollman and fellow U.S. Circuit Judges James Loken and Diana Murphy, both of Minneapolis -- remanded the case back to Baker's court "for further proceedings consistent with the views set forth in this opinion."
The assistant U.S. attorney who argued the government's appeal before the 8th Circuit was Michael Gordon.
Metro on 11/01/2014