Sheriff’s deputies became suspicious of early evening activity at a club which normally remained closed until midnight. After observing a possible drug deal, the deputies pulled over a car which elf t the parking lot and discovered over $9,000.00 in cash. The deputies detained all vehicles in the lot and sought a drug sniffing dog from a neighboring county. The dog arrived 55 minutes after the detention of the vehicles and alerted on McBride’s suv. Cocaine, firearm cash and other items were found. Before trial, McBride moved to suppress everything seized from his suv and to bar any testimony of an earlier crack cocaine sale. Both motions were denied, the evidence was admitted and McBride was convicted of drug and firearms offences. On appeal, the panel affirmed the denial of the motion to suppress holding the deputies observations, previous dealings with the club and McBride and the cashed seized form the first car created reasonable suspicion to investigate further including detaining the vehicles. The panel also held that the dog sniff was reasonable as the sheriff’s office diligently pursued this part of the investigation. The panel majority reversed the drug convictions, however, on the basis that the crack cocaine evidence was unrelated to the charged powder cocaine offences and could not be deemed harmless under the circumstances. The dissent argued the majority improperly substituted its own judgment on the evidentiary question. The judge particularly disliked the discussion distinguishing the crack cocaine act from the distribution of powder cocaine charged in this case as inconsistent with case law form at least five other circuits.
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