WEST FARGO — Charges related to the largest drug bust in the history of the West Fargo Police Department have been thrown out after prosecutors decided an officer did not have enough reasonable suspicion to stop the suspect's car.
Cass County District Judge Steven Marquart dismissed the case against 34-year-old Hans Frederick Wagner of California in December, after prosecutors requested the charges be dropped.
Wagner was charged Sept. 5, 2017, with three counts of possessing drugs with intent to deliver after West Fargo police said they found 125 pounds of raw marijuana, over 6 pounds of marijuana wax, nearly 6 ounces of hashish and two vials of marijuana oil in his trunk.
Then-West Fargo Police Officer Travis Macleod stopped Wagner's rental car Sept. 3, 2017, on Interstate 94 near Veterans Boulevard because police claimed he was going 5 mph over the speed limit, according to a police report.
Before the stop, former Stutsman County Sheriff’s Sgt. Matt Thom had relayed a tip to West Fargo police that Wagner "showed indicators of criminal drug trafficking," the police report stated. Thom, it turns out, was an arresting officer in two large drug busts since December 2017 that were ultimately dismissed.
In Wagner's case, the defense presented evidence to argue the "stop was illegal," including a video analysis demonstrating Wagner was not speeding, Wagner's attorney Jesse Lange of Fargo said in an email to The Forum.
The prosecution's expert also watched dash camera video from Macleod’s squad car and determined officers made “a bad stop,” said Tracy Peters, a Cass County assistant state’s attorney who prosecutes drug crimes.
“We had to dismiss at that time because it was the right thing to do,” she said.
In recent years, several cases in North Dakota have been dismissed after vehicle searches turned up large amounts of drugs.
Officers need reasonable suspicion to stop a vehicle, but that can mean just about anything, said Mark Friese, a Fargo criminal defense attorney who's not involved in this case. That includes traffic violations or reason to believe a crime is being committed.
"Police officers can even be mistaken in their interpretation of the facts or the law, and the stop will still be valid," said Friese who co-authored a law review article on how easy it is for officers to stop a vehicle. “It is a very, very low level of proof necessary to make a stop."
In Wagner’s case, law enforcement told Officer Macleod a driver with California plates looked like he hadn’t showered in three days and that the rental car showed signs of hard travel, according to the West Fargo officer’s report. Macleod also noticed Wagner wouldn’t make eye contact and sunk down into his seat as he passed the officer, the report said.
“This to me is an indicator (of) criminal activity,” Macleod wrote in his report.
Macleod asked Wagner, who was driving from Washington state to Stillwater, Minn., to sit in the officer’s vehicle before asking Officer Pete Nielson to come to the scene, according to the report. Squad car video obtained by The Forum shows Nielson leading K-9 Disco to the rental car, and the drug-sniffing dog appears to put his head inside the car’s windows twice.
Wagner told police he would not consent to a search, but officers said they didn’t need a warrant since Disco signaled there may be drugs in the car, the video showed.
Lange argued that police stopped Wagner without reasonable suspicion, the defendant was detained longer than reasonable, and officers conducted a warrantless search.
“Specifically, a search occurred when the K-9 put its head inside the vehicle prior to signaling the alert,” Lange wrote in a motion to suppress evidence.
Court rulings have said a police dog sniffing a vehicle is not a search, but an officer needs reasonable suspicion to bring a dog to sniff the vehicle, Friese said. A police dog that properly alerts on a vehicle gives officers probable cause to search the car, but entering the car is different than walking around the car, he said.
The defense argued Wagner braked as he entered a new speed zone, according to court documents. The squad car video shows Macleod almost passing Wagner as he entered the 55 mph zone, and it's possible the officer got an incorrect speed radar reading or clocked the vehicle ahead of Wagner, according to a police radar expert who was expected to testify for the defense.
Prosecutors agreed Wagner was not speeding and that there was not reasonable suspicion to stop him, Peters said. There was no ruling on whether Wagner was detained for an unreasonable amount of time or whether Disco's behavior constituted a warrantless search.
'Burden of proof'
The drugs police said they found in Wagner's car were destroyed, according to the West Fargo Police Department.
The law enforcement agency declined to comment on how officers handled the stop, but said it respected the decision of the Cass County State's Attorney's Office.
"We understand that cases are dismissed at times, and in this case, the State’s Attorney’s Office was uncertain they could meet the government’s burden of proof, which is beyond a reasonable doubt in a criminal prosecution,“ West Fargo Police Chief Heith Janke said in a statement.
Macleod voluntarily left the department in January 2018. The website of the Upper Sioux Police Department in Granite Falls, Minn., lists him as an officer there. Disco, who joined the department in 2011, retired in October 2018 after he underwent extensive spinal surgery in 2016. Nielsen was promoted in December 2017 to patrol sergeant.
Thom resigned from the Stutsman County Sheriff's Office last year due to "personal reasons and a desire to expand his goals outside law enforcement," the agency said.
The Forum learned that the case was dismissed after Wagner contacted the newspaper requesting that the initial online story about his arrest be removed in light of the dismissal. The Forum did not take down the online story, but looked into the dismissal. Wagner declined to comment for this story.
Peters said officers were not purposefully disregarding constitutional rights but were doing what they are trained to do when looking for drug activity. Her office has spoken with officers involved in dismissed cases to determine where investigations derail.
Law enforcement agencies do a good job of training officers in drug intervention, she said, adding that the system for stopping trafficking is not perfect.
“When there is a stop that’s bad, we all have to acknowledge that and proceed accordingly,” she said.