Description: Portland, Oregon criminal defense lawyer represented the Defendant charged with drug possession with intent to distribute cocaine.

On December 19, 2022, Defendant, Heraclio Diaz-Sanchez, was driving northbound on I-5 from California. Near Salem, Oregon, Trooper Miller of the Oregon State Police noticed Mr. Diaz-Sanchez's car, a nondescript silver Honda Accord, with a California license plate. Trooper Miller observed the Honda following slightly too close to a truck, and the Trooper ran a check on the license plate. The Honda was registered to Luis Gerardo Diaz from Gerber, California, but the vehicle's registration had been suspended as of that day. Based on his experience, Trooper Miller believed that meant that the Honda did not have proof of automobile insurance on file with the State of California.

Trooper Miller turned on his lights and initiated a traffic stop. Mr. Diaz-Sanchez complied immediately by pulling over to the right shoulder of the road. When Trooper Miller approached the car, he saw that the back window was heavily tinted. Trooper Miller could not see inside the car. He tapped on the glass and asked the driver to roll down the back passenger window. The driver complied. Trooper Miller saw no one else in the car and approached the front passenger side. Trooper Miller is equipped with a body camera, and the entire contact was captured on video.

Trooper Miller asked Mr. Diaz-Sanchez questions related to the traffic stop, including inquiring about who owned the car. Mr. Diaz-Sanchez politely replied that this was his brother's car. As Trooper Miller explained the reason for the stop, he noticed four or five air fresheners hanging on the rearview mirror and the “moderate” odor of raw marijuana coming from the vehicle. ECF 34, at 13:16-14:8. Mr. Diaz-Sanchez provided Trooper Miller with a valid driver's license, vehicle registration, and what appeared to be proof of insurance. Trooper Miller, however, noticed that the insurance had expired in September 2022 and informed Mr. DiazSanchez of that fact. The registration matched the name of Mr. Diaz-Sanchez's brother, Luis Gerardo Diaz, whose address was in Gerber, California, near Sacramento.

Trooper Miller returned to the Honda and asked Mr. Diaz-Sanchez if he could call his brother to get insurance on the car so Mr. Diaz-Sanchez could continue to drive it. Defendant responded that neither he nor his brother had a credit card to get insurance over the telephone. Defendant requested to drive to the next town, but Trooper Miller said that he would not let Mr. Diaz-Sanchez drive away without valid automobile insurance. While Trooper Miller was waiting for Mr. Diaz-Sanchez to see if he could obtain automobile insurance, the trooper asked a few additional questions. Trooper Miller asked about Mr. Diaz-Sanchez's destination and the purpose of his visit. Mr. Diaz-Sanchez responded that he was going to his niece's sweet-16 birthday party in Portland. Trooper Miller went back to his patrol car to check for warrants and driving status.

Approximately nine minutes later, Trooper Miller returned to Mr. Diaz-Sanchez's car. Trooper Miller asked Mr. Diaz-Sanchez whether he was having any luck with getting automobile insurance. Mr. Diaz-Sanchez said he could not reach his brother, so he called a friend in Texas for help in obtaining insurance. That aroused Trooper Miller's suspicion. As Trooper Miller explained:

Because I thought if he was traveling to Portland like he told me he was for a family birthday party, that he would call a family member from Portland, since he's pretty close to Portland to help him get the insurance, but instead he called a friend in Texas.

ECF 34, at 16:20-24. In addition, the Trooper asked Mr. Diaz-Sanchez where he was staying in Portland, and Mr. Diaz-Sanchez replied, “a hotel.” Id. at 27:17-18. Although the Trooper did not ask which hotel, id. at 28:6-8, the fact that Mr. Diaz-Sanchez did not respond with a specific hotel also arose suspicion. Id. at 16:25-17:3.

Trooper Miller asked Mr. Diaz-Sanchez if there were any drugs in the car, and Mr. DiazSanchez showed the Trooper approximately one ounce of marijuana in a bag on the front seat. Id. at 17:23-18:2. Although marijuana possession is legal under state law in both Oregon and California, Trooper Miller informed Mr. Diaz-Sanchez that bringing marijuana into Oregon from California is against the law. Id. at 39:8-15.

Trooper Miller also was aware of the practice of drug traffickers using a “throw-down bag” of marijuana. As Trooper Miller explained:

Q. So when you searched the car, did you think you had probable cause?

A. Yes.

Q. What do you think you had probable cause for?

A. I believed he was trafficking marijuana into Oregon or possessing marijuana illegally.

Q. Okay. And what did you base that on?

A. The odor that I smelled and then him showing me the bag of marijuana.

Q. Okay. Are you aware of the term of a “throw-down bag”?

A. Yes.

Q. Explain to us what that is.

A. A throw-down bag is, especially in Oregon, because marijuana -- the ORS for marijuana allows a person to possess a decent amount of marijuana in the car, they will keep that in the car if they're trafficking large quantities of drugs that could actually get them in trouble, hard drugs like methamphetamine, cocaine, that kind of thing, Fentanyl. And their hope is that if we see the marijuana, smell the marijuana, and they show us the marijuana and it's a smaller amount, that law enforcement is going to dismiss that and tell them, “Not worried about that. You can be on your way.”

Q. Okay. Is that something you see regularly in your job?

A. Fairly frequently, yes.

Q. Was your probable cause just based on state law or was it also based on federal law?

A. Federal law.

Q. As well?

A. As well, yes.

Q. Okay. And specifically what for [sic] federal law?

A. Possessing the marijuana.

Id. at 19:6-20:11.

The Trooper asked if there was any other marijuana or hard drugs in the car. Mr. Diaz

Sanchez responded, “No.” The Trooper then asked if there was any cocaine in the car, and Mr. Diaz-Sanchez replied, “Hell, no.” Id. at 18:3-12. Trooper Miller also asked if he could search the car to make sure there were no other drugs. Defendant stopped smiling and replied by asking, “Why do you want to search the car?” Id. at 34:11-18; see also id. at 18:16-18. Trooper Miller explained that he wanted to make sure there were no other drugs. The Trooper noticed

Defendant's demeanor change from smiling and relaxed to tense, rigid, and defensive. Trooper Miller asked again for permission to look inside the car. This time Mr. Diaz-Sanchez responded, “I don't have anything.” Id. at 34:19-22. Trooper Miller asked for a third time for permission to search the car. Mr. Diaz-Sanchez answered, “What would be the point? I don't have anything.” Id. at 34:25-35:3. The fact that Mr. Diaz-Sanchez gave non-responsive answers to Trooper Miller also aroused Trooper Miller's suspicions. Id. at 18:19-23.

Trooper Miller, who had a drug-sniffing trained dog with him, next asked for permission to “run my dog around the car.” After a brief discussion about whether the smell of marijuana would cause the drug to alert (Trooper Miller explained that the dog would not bark just over the smell of marijuana.), Mr. Diaz-Sanchez replied, “Okay, do want you want to do.” Id. at 36:1337:6. Trooper Miller then asked Defendant to step out of the car. Mr. Diaz-Sanchez asked if he should turn off the engine, and Trooper Miller said he should. Defendant got out of the car, holding his phone, which appeared to be in use.

Trooper Miller patted down the Defendant, looking for weapons, and felt a large wad of currency and a second cell phone. During this process, one of Defendant's cell phones rang, and Trooper Miller allowed Mr. Diaz-Sanchez to answer it. Defendant stood in front of the patrol car with Trooper Smith, while the Trooper explained that he would be searching the car. Defendant asked if he was going to run the dog, and Trooper Miller said that his search was based on the marijuana that Defendant brought across state lines.

Defendant still had the keys to the Honda. He was updating someone on the cell phone, in real time, about the traffic stop. Trooper Miller asked Defendant if he could have the key fob to unlock the trunk. Defendant hung up the phone call and gave Trooper Miller the key fob. The trooper opened the trunk and immediately noticed a strong smell of Armor All. Trooper Miller saw a blue duffle bag, a sealed cardboard box, and a black backpack. The Trooper opened the cardboard box and saw what appeared to be vacuum sealed packages of cocaine.

Trooper Miller then returned to Mr. Sanchez and placed him under arrest. During the search incident to arrest, Trooper Miller located an unfolded dollar bill with cocaine in it. The Trooper continued to search the vehicle and found a drug ledger in the driver's side door pocket. He emptied the cardboard box, which contained six vacuum sealed packages taped in black carbon fiber tape. Later testing confirmed that the packages contained cocaine and weighed 16.6 pounds.

Trooper Miller is a narcotics detective and canine handler for the Oregon State Police. He also servs as a Task Force Trooper with the Salem DEA. He has been a Trooper for more than 24 years, with 20 years assigned to narcotics investigations. In December 2022, Trooper Miller was assigned to handle criminal interdictions on state highways throughout Oregon. By then, he had attended hundreds of hours of criminal interdiction training focused on narcotics and human trafficking trends in the United States.

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The Fourth Amendment to the U.S. Constitution protects individuals from unreasonable searches and seizures by the government. U.S. Const., amend. IV. Searches conducted without prior approval by a judge or magistrate are deemed unreasonable per se, “subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009); Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971). The government bears the burden of proving that a warrantless search or seizure falls within one of these exceptions. United States v. Scott, 705 F.3d 410, 416-17 (9th Cir. 2012). One exception to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Also, “Troopers may search an automobile without having obtained a warrant so long as they have probable cause to do so.” California v. Carney, 471 U.S., at 392-393 (1985). This is referred to as the “automobile exception.”...
with Intent to Distribute Cocaine

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"The Fourth Amendment to the United States Constitution protects people from unreasonable searches and seizures by the government. This means that the government cannot search your person, home, or belongings without a warrant, unless there is an exception to the warrant requirement.

The Fourth Amendment also protects people from unreasonable seizures of evidence. This means that the government cannot seize evidence from you without a warrant or probable cause, unless there is an exception to the warrant requirement.

The Supreme Court has developed a number of exceptions to the warrant requirement over the years. Some of the most common exceptions include:

Consent: If you consent to a search, the government does not need a warrant.
Exigent circumstances: If the government believes that there is an immediate threat to public safety or that evidence is about to be destroyed, the government may conduct a warrantless search.
Plain view: If the government sees evidence of a crime in plain view, the government may seize it without a warrant.
Stop and frisk: If a police officer has reasonable suspicion that a person is committing a crime, the officer may stop and frisk the person for weapons.

If the government conducts a search or seizure that violates the Fourth Amendment, any evidence obtained as a result of the search or seizure may be excluded from court. This means that the government cannot use the evidence to convict you of a crime.

The Fourth Amendment is an important part of the Bill of Rights because it protects people's privacy and freedom from unreasonable government intrusion.

Here are some examples of how the Fourth Amendment has been applied by the courts in recent years:

In 2021, the Supreme Court held in Arizona v. Gant that police officers cannot search a person's car without a warrant after they have arrested the person and the car is impounded.
In 2020, the Supreme Court held in Carpenter v. United States that the government must obtain a warrant to collect cell phone location data.
In 2019, the Supreme Court held in Riley v. California that police officers cannot search a person's cell phone without a warrant after they have arrested the person.

These cases show that the Fourth Amendment protects people from a wide range of government searches and seizures. If you believe that your Fourth Amendment rights have been violated, you should contact an attorney."
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Outcome: Motion to suppress denied.

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