United States v. McLemore, No. 17-1684 (8th Cir. 2018)Annotate this Case
Officers Richter and Sullivan, patrolling a high crime neighborhood, observed McLemore standing by a BMW parked at a residence frequented by gang members. Days earlier, investigating reports of a nearby shooting, Richter and Officer Del Valle had seen Rode exit the BMW. They learned that Rode was affiliated with the gang and may have been the victim of an unreported shooting. Richter radioed Del Valle, patrolling in a different car, and told her to follow the BMW. Del Valle saw that it had a dealer advertising plate instead of a rear license plate and a temporary paper card taped inside of the rear window. Del Valle radioed that she had “no violations yet” but “you can see a plate, but you can’t read what’s on it.” Sullivan replied, “there you go.” Del Valle made an “equipment stop.” She did not examine whether the temporary card was valid (it was) because “I already had the probable cause.” During the stop, Del Valle smelled marijuana, and Richter discovered a firearm during his pat-down search of McLemore. The district court ruled that the stop violated the Fourth Amendment. The Eighth Circuit affirmed. The government failed to identify what violation of state law the BMW operator was suspected of committing and did not introduce into evidence either the BMW’s temporary registration card or a copy of the standard-form card; neither officer testified that they can usually read temporary cards at night or that they had previous problems with fraudulent or invalid cards.