Ernesto Ayon was convicted of possession of cocaine, methamphetamine, drug paraphernalia and concealed cash. But the police who arrested him acted unlawfully when they stopped him for minor traffic violations and detained him until a narcotics dog arrived. An appellate court found that Ayon’s Fourth Amendment rights were violated because his traffic stop was actually a pretext for a drug bust.

A unanimous three-judge panel from California’s Sixth Appellate District Court of Appeal reversed the trial court’s denial of Ayon’s motion to suppress the evidence seized in the search of his car. It vacated his conviction and remanded his case to Santa Clara County. The opinion, certified for publication, was authored by Administrative Presiding Justice Mary J. Greenwood, with a concurrence by Associate Justice Adrienne Grover and a separate concurrence by Associate Justice Allison Danner on January 6.

Ayon was stopped by the police for illegally driving in a bike lane and failing to signal before a right turn. He was asked for and provided his license and registration and it came back “clean.” After a few minutes, he was asked to consent to a search of his car. He declined and questioned law enforcement’s right to search his car for a simple moving violation. He wondered why he could not “get a ticket and go on my way.” A narcotics dog was called and he sniffed the car and “alerted police to the presence of drugs.

After his stop and search, Ayon was charged with transportation, possession of, and possession for sale of cocaine and methamphetamines. The police also found $16,200 in a hidden compartment in his vehicle. He pleaded no contest to all charges and was sentenced to one year in jail and five years on probation.

During the trial, the court learned that the police had been conducting a preexisting drug investigation of Ayon. This sheds light on whether Ayon’s warrantless search was legal because it was “objectively reasonable” based on “facts known to the officer.”

Video evidence from police body cameras helps reveal what the officers knew at the time they pulled Ayon over. Two officers who participated in the traffic stop gave testimony that significantly differed from what their body cams showed. The officers said Ayon acted “hostile… aggressive… confrontational…and strange” after they stopped him, which made them suspect him of drug use. But the video showed that he was “cooperative at all times,” and that he “showed no signs of hostility or aggression.” In addition, Ayon did not show any signs of drug use, despite the officer’s reports that he was sweating and had “fluttering eyelids.” The Attorney General did not dispute Ayon’s behavior.

In addition, one officer requested a narcotics dog before he even conducted a sobriety check. The dog handler admitted that his presence was requested before Ayon’s traffic stop even occurred. Justice Greenwood wrote that “the fact of the preexisting drug investigation” explains the prolonged stop that lasted until the narcotics dog arrived and sniffed drugs. She found the officer’s testimony to be “neither reasonable nor credible.”

The trial court found that the police had no probable cause to search the car, despite the narcotics dog’s alert. They noted the short timeline before the dog arrived and the video that disputed their testimony that Ayon acted in a hostile manner. However, they still found that the “officers’ actions were objectively reasonable.” The Attorney General argued that the stop was lawful “because it did not extend beyond the time required to perform ordinary traffic stop inquiries.” The appellate court disagreed and held that the “police unlawfully prolonged the stop.”

Greenwood turned to precedent and reported that a traffic stop may “last no longer than is necessary to effectuate the purpose” of investigating a traffic violation. This is determined by the “mission” of the stop as well as safety concerns. If police exceed the time needed to handle the matter for which the stop was made, “it violates the Constitution’s shield against unreasonable searches,” she wrote.

She then explained the standard for appellate review, which is to “defer to the trial court’s factual findings as supported by substantial evidence.” She emphasized that appellate courts make the determination of what is reasonable.

Applying the facts the trial court found, she said the “relevant time frame from when Ayon was pulled over until the dog “alerted” the police did not show that the police “diligently pursued their investigation of Ayton’s traffic violations.” His license inspection showed no information that “would have justified further investigation.”

Also, no officer ever wrote a traffic citation. The body camera videos failed to show any officer doing “anything to address the traffic infractions.” The timeline of the dog sniff and the establishment of probable cause showed “the police failed to diligently address the traffic infractions during the stop.” Ayon was not hostile or aggressive and the court failed to find any reason the officers legally prolonged the length of the investigation into traffic violations and “the police did not diligently pursue” the purported evidence regarding the traffic stop. Also, Greenwood found “there is no substantial evidence to support (the officer’s) claim that Ayon appeared to be under the influence.

The trial court found the police actions reasonable, but the appellate opinion stressed that this is a legal determination for the appellate court to review. In doing so, the court found “no evidence that would establish reasonable suspicion or probable cause to believe (Ayon) was under the influence of a controlled substance.” The dog sniff added time to the stop. And the lengthy interrogation of Ayon did not constitute a “diligent investigation into the traffic violation.”

Greenwood summed up by stating “A close examination of the record shows the traffic infractions were not the actual motivation for the initial stop.” The dog handler knew the police were coming. “It is apparent the police suspected prior to the stop that they would find drugs in Ayon’s car, but the record holds no evidence of how they knew this.”

None of this is to say that pre-textual traffic stops violate the Fourth Amendment. However, the fact that there was a preexisting drug investigation, and the officer’s request for a narcotics dog prior to the performance of a sobriety test all show that the officers were “neither reasonable nor credible and thus did not constitute substantial evidence under the relevant legal standard.”

Justice Danner concurred but said that he did not agree with the relevance of the officers being part of a preexisting drug investigation. She thought that should have been an important part of the evaluation of one of the officer’s credibility.