MEMORANDUM OPINION AND ORDER
Pending are defendant Marcus Wyn Taylor’s motion to suppress evidence, filed December 13, 2012, supplemental motion to suppress evidence, filed December 27, 2012, and second supplemental motion to suppress evidence, filed January 14, 2013.
I.
The discussion that follows assumes a familiarity with the findings of fact and conclusions of law set forth in the May 14, 2013, memorandum opinion and order,
Cоrporal Morris had previously witnessed Mr. Taylor on several occasions sitting on his porch “at all hours of the day and night.” (Hearing Trans, at 132). He also noted the unusual level of comings and goings from Mr. Taylor’s home.
When Mr. Taylor opened his glove box, Corporal Morris, who was stationed at the passenger side window of the vehicle, noticed two large stacks of cash therein. When he attempted a closer look, Mr. Taylor looked up at Corporal Morris and started to close the glove box to halfway as if to hide from view something contained therein. He retrieved his proof of insurаnce and registration and handed it to Detective Daniels.
Corporal Morris alerted Detective Daniels, who then asked Mr. Taylor to step out of the vehicle. After refusing to comply, Mr. Taylor again asked to speak with his lawyer. Mr. Taylor was quite agitated and becoming angrier about not being permitted to call his lawyer. Mr. Taylor again refused to exit the vehicle. He ultimately did so only after Detective Daniels began to open the vehicle door to assist Mr. Taylor in exiting.
After Mr. Taylor admitted that he had a knife on his person, Detective Daniels asked him tо turn and face the vehicle for a protective frisk. As Detective Daniels commenced the pat down, however, Mr. Taylor “turned on [him] ... real fast” and was acting aggressively. (Id. at-21). Detective Daniels stepped back, informed Mr. Taylor he would not be reaching into his pockets and told him that he just needed to pat Mr. Taylor down for weapons. He then handcuffed him.
Corporal Morris asked Mr. Taylor about the money in the glove compartment. Mr. Taylor responded that there was approximately $3,000 therein. He stressed, however, that law enforcement did not have his consent to search the Buick. (See id. at 116 (Corporal Morris stating as follows: “Mr. Taylor said that there was approximately 3,000 dollars in there, but we weren’t getting in his car, and the conversation ended.”)).
Corporal Morris phoned Patrolman Clarence Howell. Patrolman Howell is an officer with the K-9 unit. Prior to his arrival, Detective Daniels “permeated” the Buick. (Id. at 65). The process involves a physical entry into the vehicle by law enforcement, rolling up its windows, turning off the ignition but leaving the key in the “on” position, and then turning on the vehicle’s interior fan to blow any aromas in the vehicle out to the exterior. This appears to be a standard practice for the Charleston Police Department when the K-9 unit is called. (See Trans, at 66 (Detective Daniels stating “And as far as my experience, every other K-9 officer that I’ve dealt with, they have you permeate the car is what they call it like I described to you before their arrival.”); (id. at 86 (Patrolman Howell noting that his K-9 supervisor trained him that “when you conduct a traffic stop, we permeate the vehicle.”)).
Patrolman Howell reiterated that one must enter the detained vehicle in order to permeate it. There are no state or national standards respecting permeation and Patrolman Howell has never read nor received any literature concerning the process. Interestingly, Patrolman Howell suggested that permeation was unnecessary for an effective K-9 sniff. He testified as follows: “On some of our training we do unpermeated, some we do permeated, and he detects unpermeated and per
Patrolman Howell arrived with his K-9, Jux, and commenced an exterior search of Mr. Taylor’s vehicle a short time later. Detective Daniels characterized the sniff as the “moment of truth.” (Id. at 59). If an alert occurred, the investigation would continue. If Jux failed to alert, the officers would have returned Mr. Taylor’s driver documents, issued a warning citation for reckless driving, failure to maintain his lane, or driving too fast for conditions аnd sent Mr. Taylor on his way. After Jux alerted, Detective Daniels and Corporal Morris approached the vehicle to search it.
Corporal Morris opened the glove compartment and retrieved the currency. Detective Daniels searched underneath the driver’s seat and saw a handgun. He alerted Corporal Morris. Mr. Taylor confirmed that he was on federal probation for a prior drug charge, in actuality a term of supervised release. The officers informed Mr. Taylor that he was under arrest for being a felon in possession of a firearm. Corporal Morris searched Mr. Taylor’s person following his arrest, finding two large wads of currency in each front pocket. He was placed in a nearby cruiser. Corporal Morris continued the search, moving to the Buick’s trunk. There he found a duffel bag. He unzipped it and saw a large grocery-type bag full and tied at the top. He looked closer and saw additional stacks of currency. The total amount of currency recovered was $93,157.
On November 15, 2013, the United States filed a single-count indictment charging Mr. Taylor with possessing the recovered firearm аfter having previously been convicted in 2005 of possessing with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). On December 13, 2012, Mr. Taylor moved to suppress all fruits of the October 24, 2012, traffic stop. First, he asserted that the officers lacked probable cause to stop him. Second, he contends that law enforcement exceeded the customary scope of a traffic stop and instead pursued a criminal investigation that measurably prolonged the stop without reasonable suspicion. The May 14, 2013, memorandum opinion and order rejected Mr. Taylor’s challenges on these two points.
On December 27, 2012, Mr. Taylor filed a supplemental motion to suppress. Relying upon United States v. Jones, — U.S. -,
On January 22 to January 24, 2013, the court held an evidentiary hearing attended by counsel for the parties and Mr. Taylor. On February 1, 2013, Mr. Taylor moved to file additional briefing and to supplement
On February 26, 2013, after having not earlier received a substantive response from the United States respecting Mr. Taylor’s February 6, 2013, brief, the United States was directed to file a substantive response on or before March 11, 2013, with any response from Mr. Taylor filed by March 18, 2013. On March 18, 2013, the final brief was received, and the court deemed the matter submitted.
On March 26, 2013, the Supreme Court entered its decisiоn in Florida v. Jardines, — U.S.-,
On May 14, 2013, the court entered its findings of fact and conclusions of law. In sum, the warrantless entry into Mr. Taylor’s vehiсle, resulting in an unreasonable search, was deemed to transgress the Fourth Amendment boundaries recently discussed in Jones and Jardines. Noting that the parties had not briefed the remedy, if any, that should result, the United States was given leave to address the question by May 28, 2013, with Mr. Taylor’s response by June 11, 2013, and the United States’ reply, if any, filed by June 18, 2013. The court has received the United States’ opening brief and Mr. Taylor’s response. At the court’s direction, the United States filed a reply on July 12, 2013.
II.
The court discussed Jones and Jardines in the May 14, 2013, memorandum opinion and order. In Jones, law enforcement installed a Global-Positioning-System (“GPS”) tracking device on the undercarriage of the defendant’s Jeep while it was stationed in a public parking lot. The device was then used over the next 28 days to track the vehicle. The fruits of that tracking effort produced a grand jury indictment resulting in the defendant’s ultimate conviction. The Supreme Court concluded that the “installation of a GPS device on a target’s vehicle, and ... [the] use of that device to monitor the vehicle’s movements, constitutes a ‘search’ ” within the meaning of the Fourth Amendment. Id. at 949. The Supreme Court observed as follows:
It is important to be clear about what occurred in this case: The Government physically occupied private property for thе purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.
Jones,
In Jardines, law enforcement took a trained K-9 to Jardines’ front porch. The K-9 alerted for narcotics. A warrant was obtained based upоn the alert. The ensuing search revealed marijuana plants. The question in Jardines was whether the use of the K-9 on the homeowner’s porch to investigate the contents of the home constituted a “search” within the meaning of the Fourth Amendment. The Supreme Court observed as follows:
Th[e] principle [from Jones] renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house — -in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.
Id. at 1414 (emphasis added).
In the May 14, 2013, memorandum opinion and order, the court found that Mr. Taylor explicitly prohibited law enforcement from entering the Buick. Detective Daniels nevertheless entered the Buick prior to Patrolman Howell’s arrival but solely for permeation purposes. As performed in accordance with the longstanding, and apparently heretofore unchallenged, permeation practices of the Chаrleston Police Department, he additionally rolled up the vehicle’s windows, turned the key to the “on” position, and then energized the interior fan.
The purpose of this step was to blow any aromas in the vehicle out toward the exterior, where Jux would soon be sniffing. As the court earlier concluded, this warrantless entry and search is legally indistinguishable from the circumstances in Jones and Jardines, with law enforcement physically occupying private property— Mr. Taylor’s ear — for the purpose of obtaining information — the otherwise undetectable, or less easily detected, odors of controlled substances — found therein. Inasmuch as probable cause was lacking for that unreasonable search, a Fourth Amendment violation occurred.
III.
A. Governing Standard
Having found the entry into Mr. Taylor’s car to constitute an unreasonable search, the question of a remedy remains. As recently noted by the Supreme Court, “The Fourth Amendment protects the right to be free from ‘unreasonable searches and seizures,’ but it is silent about how this right is to be enforced.” Davis v. United States, — U.S.-,
When a Fourth Amendment violation is found, the exclusionary rule is frequently employed. See, e.g., United States v. Oscar-Torres,
There are exceptions to the rule. Suppression is “not a personal constitutional right,” nor seen as “redress” for the constitutional wrong done. Id. at 2426 (quoting Stone v. Powell,
Real deterrent value is a “necessary condition for exclusion,” but it is not “a sufficient” one. The analysis must also account for the “substantial social costs” generated by the rule. Exclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. Our cases hold that society must swallow this bitter pill when necessary, but only as a “last resort.” For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.
We abandoned the old, “reflexive” application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits. In a line of eases beginning with United States v. Leon [468 U.S. 897 ,104 S.Ct. 3405 ,82 L.Ed.2d 677 (1984) ], we also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the “flagrancy of the police misconduct” at issue.
The basic insight of the Leon line of cases is that the deterrence benefits of exclusion “var[y] with the culpability of the law enforcement conduct” at issue. When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. But when the police act with an objectively “reasonable good-faith belief’ that their conduct is lawful, ... or when their conduct involves only simple, “isolated” negligence, the “‘deterrence rationale loses much of its force,’ ” and exclusion cannot “pay its way.”
Id. at 2426-28 (“Where suppression fails to yield ‘appreciable deterrence,’ exclusion is ‘clearly ... unwarranted.’ ”)(quoting United States v. Janis,
So exclusion is considered when police practices are deliberate enough to result in “meaningfu[l]” deterrence and “culpаble enough to be “ ‘worth the price paid by the justice system.’” Id. at 2428 (quoting Herring v. United States,
Our court of appeals has recently had occasion to apply the principles espoused in Herring and Davis in United States v. Davis,
In determining the deterrent effect of applying the rule, the Herring Court explained that the deterrent effect is higher where law enforcement conduct is more culpable. Thus, “ ‘an assessment of the flagrancy of the police misconduct constitutes an important step in the calculus’ of applying the exclusionary rule.”
The Herring Court explained that the rule should not be applied where excluding the evidence would have little deterrent effect on future constitutional violations by law enforcement officers, and the cost to society of such a rule is high. Id. at 147-148,129 S.Ct. 695 (concluding that “when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way’ ” and the exclusionary rule should not be applied).
Id. at 251-52 (citations omitted) (“For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy eosts.”)(internal quotation marks and citation omitted). As noted by the court of appeals in Davis, those instances when the exclusionary rule is applied are situations where law enforсement actions are “ ‘patently unconstitutional’ ... [on the
order of] brazen or reckless.” Id. at 256 (citation omitted); see also United States v. Gaines,
Where there is little to suggest a pattern of constitutional wrongdoing and little likelihood of future recurrences, the deterrent capacity of the exclusionary rule is diminished. Compare, e.g., United States v. Davis,
The court has concluded that the permeation process offends the Fourth Amendment. While the court in its preceding opinion drew upon Jones and Jar-dines to simplify the analysis, the prinсiple underlying the conclusion has been the law for decades. Almost 90 years ago in Carroll v. United States,
[TJhose lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.
Carroll,
In the decades following Carroll, the Supreme Court excеpted a few situations from the strict rule of probable cause. See, e.g., Class,
In Class, the Supreme Court “concluded that an officer’s momentary reaching into the interior of á vehicle did constitute a search.” Jones,
While the interior of an automobile is not subject to the same expectations of privacy that exist with respect to one’s home, a car’s interior as a whole is nonetheless subject to Fourth Amendment protection from unreasonable intrusions by the police. We agree with the New York Court of Appeals that the intrusion into that space constituted a “search.”
Class,
The search in Class was nevertheless upheld as reasonable based upon several considerations. Foremost, law enforcement could have commanded the defendant, while he was in the car, to move the papers on the dashboard that covered up the VIN inasmuch as the law required that the VIN not be obscured. The high Court deеmed the request of the driver not unlike the permissible request for a license and registration.
Unlike a law enforcement officer’s demand to see the VIN, there is no corresponding requirement that one stopped by the police obey the directive to energize his vehicle HVAC system and roll up his windows. Further absent from this case is the incremental efforts of law enforcement in Class to secure the VIN information without entering the vehicle. For example, one of the officers attempted to find the VIN on the jamb of the open door, where it may be found in pre-1969 cars, prior to reaching his arm in the vehicle to move the papers but could not locate it there. In this case, Mr. Taylor specifically instructed law enforcement it was not permitted to enter his car. But that entry followed, along with the manipulation of vehicle controls, and plainly transgressed the Fourth Amendment in the process. In arriving at that conclusion, one need look no further than the jurisprudential line-in-the-sand found at the conclusion of Class:
We note that our holding today does not authorize police officers to enter a vehicle to obtain a dashboard-mounted VIN when the VIN is visible from outside theautomobile. If the VIN is in the plain view of someone outside the vehicle, there is no justification for governmental intrusion into the passenger compartment to see it.
Class, 475 U.S. at 119,
One finds similar guidance in Bond v. United States,
After observing that “[pjhysically invasive inspection is simply more intrusive than purely visual inspection,” id. at 337,
When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus, a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers оr bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent’s physical manipulation of petitioner’s bag violated the Fourth Amendment.
Id. at 338-39,
Despite this rather concrete guidance, the Charleston Police Department adopted permeation, and an accompanying unwarranted vehicle entry, unsupported by probable cause, as a standard operating procedure. That course, at a minimum, gives rise to a finding of systemic negligence or recklessness. The pattern and practice here carries a far darker huе of culpability than a mere nonrecurring error respecting the scope of the law. Absent suppression, the court has little reason to conclude that the unconstitutional practice of permeation will cease. If the recovered weapon in this case is excluded, however, the price of permeation will be unmistakable.
The court, accordingly, ORDERS that Mr. Taylor’s December 13, 2012, and January 14, 2013, motion and second supplemental motion to suppress be, and hereby are, denied. It is further ORDERED that the December 27, 2012, supplemental motion to suppress evidence be, and hereby is, granted to the extent that the firearm seized and any photographs or other depictions thereof be, and hereby аre, excluded from the evidentiary record to be developed during the trial of this case.
The Clerk is directed to transmit a copy of this written opinion and order to the defendant and counsel of record.
Notes
. Specifically, Corporal Morris based his suspicion upon the following conditions that he observed on occasions when he passed by Mr. Taylor's home:
I worked the East End on my patrol duties as well as in FOCUS where Washington Manor is, and on several occasions, I’ve drove through and there was a lot of traffic in front of his house, and he would sit on the porch a lot. I would always see him out there.
Q. When you say traffic, do you mean pedestrian traffic or cars?
A. Yes, sir, pedestrian traffic, people always walking back and forth.
(Trans, at 110).
. Patrolman Howell dispelled any doubt on the point later in his testimony as follows:
Q. Does this permeation, it increases the chances that K-9 Officer Jux will provide a positive alert?
A. It don't increase the chances.
(Id. at 94).
. There is one state case dealing with vehicle setup procedures. The facts, however, are dissimilar. In People v. Bartelt,