Smoking marijuana two hours prior and bloodshot eyes alone aren't enough for a DUI arrest.

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Ultimately, the Court is presented with two facts: (1) Mr. Russell consumed marijuana at least two hours before the stop; and (2) Mr. Russell may have had bloodshot, watery eyes and/or droopy eyelids. These facts put this matter on all fours with Patzer, where the driver was observed only to have “bloodshot and glassy eyes” and admitted to smoking marijuana. 277 F.3d at 1082. Under the Idaho law at issue in that case, the government was required to show that the defendant was under the influence “to a degree which impairs the driver's ability to safely operate a motor vehicle.” Id. at 1084 (quoting Idaho Code § 18-8004(5)). The Ninth Circuit concluded that the defendant's “driving and comportment did not evidence any impairment.” Id. Here, too, the Court concludes that Mr. Russell's driving and comportment do not evidence any impairment such that his ability to drive was “lessened to an appreciable degree.” WPIC 92.10. Notably, the Government has never addressed the relevance of Patzer, either in its briefing or in oral argument at the evidentiary hearing. While the officers were justified in investigating the possibility of marijuana DUI, they should have investigated further (e.g., conducted sobriety tests) or released Mr. Russell instead of arresting him when they did. Therefore, the arrest was unlawful, and all evidence obtained as a result must be suppressed.
Finally, because the Court finds that the officers did not have probable cause to arrest Mr. Russell and suppresses evidence on this basis, it need not reach Mr. Russell's additional arguments regarding the search warrants and his request for a Franks hearing.
There is, of course, an elephant in the room (or vehicle): a gun-stolen, loaded with ammunition, and apparently fully functional (see Dkt. No. 45 at 9)-was recovered as a result of the traffic stop. And today's ruling excludes from trial this crucial evidence against Mr. Russell. But “while it is true that applying the exclusionary rule in this case will mean that a guilty defendant goes free, that is true of applying the exclusionary rule in essentially every case,” and “[n]othing about this case calls for a remedy other than ‘[t]he typical remedy for a Fourth Amendment violation,' which ‘is the exclusion of evidence discovered as a result of that violation from criminal proceedings against the defendant.'” United States v. Ngumezi, 980 F.3d 1285, 1291 (9th Cir. 2020) (quoting United States v. Garci

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