At 11:41AM, a Wells Fargo was robbed in Winslow, Arizona. The dispatcher identified two suspects: a man wearing a Bud Light hat and a man running “from the bank in the alley wearing a blue-and-white checkered shirt and blue jeans.”  At 12:13 PM, another report came in regarding a suspicious white Cadillac driven by a native American male wearing a light blue checkered hoodie and wearing a Bud Light hat in the vicinity of the Wells Fargo earlier that morning. It was reported that the Cadillac was headed east at 11:00 AM. Fifteen minutes later, an Arizona State Trooper saw a white Cadillac and saw through the heavily tinted window what appeared to him to be a Native American male wearing glasses. He pulled the car over on the suspicion that the driver was involved in the bank robbery.  The trooper ordered the driver out and noticed the strong smell of marijuana.  As it turned out, the driver was a woman and didn’t appear to be a Native American.  Martinez (the defendant) was in the front passenger seat and was detained. The trooper then searched the car and found evidence of a totally different bank robbery that incriminated Martinez, leading to his prosecution which was met with a motion to suppress the evidence under the exclusionary rule for an unlawful seizure and search.

The District Court denied the motion to suppress, but the Tenth Circuit reversed. In a 2-1 split decision, the majority held that seeing a white Cadillac and the silhouette of a figure who appeared to be wearing glasses through a heavily tinted window lacked the specificity to create the necessary reasonable suspicion to conduct a Terry Stop.  The majority rejected the “consistent timeline” approach, holding it was too generalized to create a particularized suspicion that the Cadillac seen was the one used in the bank robbery.

Practice Note:  The trooper in this case decided to pull the car over without waiting to see if the driver committed a traffic infraction.  According to the case facts, the trooper made this decision for solid tactical reasons including the danger of a losing the vehicle on dirt roads or endangering others.  But as the decision in this case demonstrates, when the reasonable suspicion determination is a “close call” it is better to make the initial seizure of the vehicle as a result of a traffic stop and not a Terry Stop.  If the Trooper had waited and observed a traffic infraction and made the stop on that basis, the strong smell of marijuana might have led to a valid Terry Stop and even possible search of the vehicle. If the tactical situation allows for a period of observation, it is always better to make the initial stop based on a traffic infraction if one occurs.

To read or download the full decision CLICK HERE