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Crossing fog line provides Probable Cause for careless driving stop

Facts

In 2013, Officer Jason Johns, Rankin County S.O., observed Kendall Martin cross over the right fog line. He pulled beside the vehicle to check for seat belt usage and then went back behind the car. He then observed the car “hit the line or get real close to it.” At this point, he stopped the car. When he approached, he could smell air freshener and a faint odor of marijuana.

After checking his drivers license, Johns told Martin that he smelled marijuana and asked if he could search the car. Martin replied, “it doesn’t matter.” As Johns opened the back hatch, the smell was pronounced. Johns then found a black duffle bag containing 9.9 pounds of marijuana. Martin was convicted of possession of marijuana with the intent to distribute and sentenced to 60 years. On appeal, Martin argued the stop for crossing a fog line was illegal. MSC affirmed.

Analysis

A. Reasonable suspicion

An officer may make a brief, investigatory stop of a vehicle if the officer has reasonable suspicion to believe that the occupants of the vehicle have been, are currently, or are about to be involved in criminal activity.

Reasonable suspicion is based on something less than the personal observation of a violation of law.

B.  Probable cause

Probable cause arises when the facts and circumstances with an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.

Probable cause to make a traffic stop exists when a defendant commits a traffic violation and a law enforcement officer observes the violation. The court has held that the test for determining probable cause is the totality of the circumstances.

C.  Fog line crossing

The Mississippi careless driving statute, Miss. Code Ann. § 63-3-1213, provides that any person who drives any vehicle in a careless or imprudent manner, without due regard for the width, grade, curves, corner, traffic and use of the streets and highways and all other attendant circumstances is guilty of careless driving.

Because Johns observed Martin’s vehicle cross the fog line once, and then again approach or “bump” the fog line, and the video evidence, while unclear, does not directly contradict Johns’s testimony, the court holds that there is sufficient evidence that Johns had probable cause to believe that Martin had driven “in a careless or imprudent manner, without due regard for the width . . . and use of the streets and highways” in violation of Section 63-3-1213.

Also, it doesn’t matter that Martin was not cited for careless driving. There is no requirement that an officer issue a citation for the predicate traffic violation to have a valid stop or search. See Walker.

D.  Officer did not improperly extend traffic stop

When an officer observes a traffic violation, he has probable cause to detain that person long enough to issue a traffic citation. If the officer develops reasonable suspicion of additional criminal activity during his investigation of the circumstances that originally caused the stop, he may further detain its occupants for a reasonable time while appropriately attempting to dispel this reasonable suspicion.

Johns testified that he smelled an overwhelming odor of air fresheners and an odor of marijuana as soon as he leaned in the window to retrieve Martin’s license and insurance card. He testified that in his experience, that meant drugs were present. This court held in Dies that probable cause may come from any of an officer’s five senses. If an officer clearly smells contraband, such as marijuana, that smell can give rise to the probable cause necessary to search a vehicle and its passengers.

Therefore, as soon as Johns smelled the marijuana at the beginning of the stop, he had probable cause to search the vehicle. The probable cause did not dissipate merely because Johns waited until he had obtained the results of Martin’s criminal database and driver’s license checks before bringing it to Martin’s attention.

Also, Martin consented to the search. Johns asked Martin, “Do you mind if I check it real quick before I let you go?” Martin replied, “It don’t matter.” Martin does not argue here that the consent was not valid.

 

https://courts.ms.gov/Images/Opinions/CO123974.pdf