Reasonable Suspicion: U.S. v Rodriguez
Traffic stops have long been instrumental in the development of 4th Amendment jurisprudence.
For years, officers were allowed to extend traffic stops so long as the extension was de minimus (negligible) and the Court has long held 7 to 8 minutes is a lawful extension of a stop. Coupled with the United States Supreme Court’s decision in Illinois v. Caballes, where the Court ruled a drug dog sniffing walking around a vehicle was not a search, officers had great flexibility in extending traffic stops to conduct drug searches, even without reasonable suspicion to do so (when a reasonable officer, guided by his training and experience has specific and articulable facts, as well as the rational inferences from those facts, to lead him to believe criminal activity is afoot). In 2015, the Supreme Court took up the issue of traffic stop durations again in United States v. Rodriguez, but only this time, a different result occurred.
Rodriguez v United States
(6-3 decision written by Justice Ginsberg)
Officer Struble observed a Mercury Mountaineer veer slowly onto the shoulder of a Nebraska highway for about 1 to 2 seconds and then jerk back onto the road. Struble was a K-9 officer and he had the dog that night. The driver of the vehicle was the Defendant, Dennys Rodriguez. On approach, the officer asked for his license and registration. The Defendant told the officer he swerved to avoid a pothole.
After running a check on the Defendant, officer Struble returned to the car to speak with the passenger, Mr. Pollman. Officer Struble ran a record’s check on Pollman and called for a second officer to come to the scene. Officer Struble then began writing a warning ticket for the infraction. Officer Struble then returned to the Mountaineer, explained the warning to the Defendant, and gave him back all of his documents.
After the completion of the stop, officer Struble asked the Defendant if he could walk his drug dog around the vehicle. Defendant declined and was then asked to step out of his vehicle to wait for the other officer to arrive. Upon the 2nd officer’s arrival, Officer Struble walked his dog around the Defendant’s vehicle and was positive for drugs. Search of the car revealed over 50 grams of meth. A total of 7 to 8 minutes elapsed from the time Defendant was given his warning ticket to the drug dog’s positive alert. The Defendant was charged with intent to distribute meth. The Defendant filed a suppression motion arguing the officer had no reasonable suspicion to extend the traffic stop to conduct the dog sniff.
The Magistrate concluded that no reasonable suspicion existed to detain the Defendant once the warning ticket was issued. However, the magistrate relied on 8th circuit precedent that extension of the traffic stop by only 7 to 8 minutes for the dog sniff was only a de minimis intrustion of Defendant’s 4th Amendment rights, and thus permissible.
U.S. District Court of Nebraska
Denied motion to suppress. The 7 to 8 extension of the traffic stop was not of constitutional significance.
8th Circuit Court of Appeals
Affirmed, the delay was permissible as only a de minimis intrusion of Defendant’s liberty. The Court declined to rule on whether reasonable suspicion existed to justify the extension of the detention to conduct the dog sniff.
U.S. Supreme Court
Reversed, the court rejects the de minimis rule and held that a traffic stop can only be as long as is reasonably required to effectuate the purpose of the stop (address the traffic violation that warranted the stop).
Whether the 4th Amendment tolerates a dog sniff conducted after the completion of a traffic stop?
A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.
*The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop.*
A relatively brief encounter, a routine traffic stop is more analogous to a Terry Stop than to a formal arrest. Like a Terry Stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s mission – to address the traffic violation that warranted the stop. Authority for the seizure thus ends when tasks tied to the traffic infraction are or reasonably should have been completed. From Sharpe, 470 U.S. at 668 (“in determining the reasonable duration of a stop, it is appropriate to examine whether the police diligently pursued the investigation.”).
Although Caballes and Johnson authorize unrelated investigations that did not lengthen the roadside detention, Caballes did caution that a traffic stop “can become unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a warning ticket.” Johnson further stated that the seizure remains lawful only “so long as unrelated inquires do not measurably extend the duration of the stop.” Thus, an officer may conduct unrelated checks during a lawful stop, but he may not do so in ways that prolong the stop, absent reasonable suspicion.
However, an officer may investigate exists ordinary inquires incident to a traffic stop. These include checking the driver’s license, checking for warrants, registration and proof of insurance. These inquires are related to the purpose of a traffic stop, to ensure vehicles are safe and properly operated. However, a dog sniff is used to detect criminal wrongdoing is not an ordinary incident to a traffic stop. In relying on the de minimis rule, the 8th Circuit relied on Pennsylvania v. Mimms, in which the Court reasoned the government’s legitimate interest in officer safety outweighed the additional intrusion of holding the already stopped driver roadside.
However, the government’ interest in officer safety stems from the stop itself. Safety justifies the warrant and criminal checks. Investigation into other crimes detours from the mission of safety. The dog sniff cannot be justified based on officer safety and instead relates to the government interest of general crime deterrence. The government also argued that an officer who expeditiously conducts a traffic stop, thereby keeping the overall duration of the stop reasonable compared with other traffic stops with similar circumstances, may then run a drug dog.
In essence, the government is asking to be rewarded bonus time for handling stops quickly. However, reasonableness of stop depends on what the police actually do. If an officer completes a traffic stop quickly, then that is the time reasonably required to complete the stop’s mission. A traffic stop prolonged beyond that point is unlawful. Thus, the critical question is not whether the dog sniff occurs before or after issuance of the citation, but whether conducting the dog sniff adds time to the stop.
North Carolina’s Application of
U.S. v Rodriguez
State v Bedient
State v Johnson
State v Castillo
State v Downey
State v Bullock
State v Reed
State v Bedient
At about 11:30 pm on February 28th, 2013, Sergeant Parker of the Jackson County Sheriff’s Office observed the defendant driving with her high beams on as she passed Sergeant Parker. Parker then initiated a traffic stop. Defendant immediately told Parker she was driving with her high beams on. She was given a written warning earlier for non working headlights. The prior officer told the defendant to drive with her high beams on since her headlights were not working.
It took about twenty seconds for the defendant to retrieve her license. She seemed nervous, reaching into places, including the driver side visor. Defendant recognized Sergeant Parker; she saw him at the home of Mr. Coggins. Sergeant Parker knew Mr. Coggins as a the main meth dealer in town.
According to Parker, anyone who hangs around Coggins is on drugs. While checking for warrants and on the license, defendant was observed moving around her car and reaching in different places. The search for warrants came back clean. Parker then requested that defendant join him at the rear of his car. First, Parker gave defendant a verbal warning about driving with her high beams on. There was about a 15 to 20 second conversations about the high beams.
Parker then asked defendants about changing her address on her license (there was an issue with her address as to whether she lived with her husband or Mr. Coggins). Then Parker asked defendant if she had been in trouble for anything. Defendant said no. When asked to search her car, defendant complied. Parker gave back the license and then asked the passenger to step out of the car as well. Upon search of the vehicle, an open container and a schedule 2 controlled substance was found in the vehicle.
Motion to suppress denied (Reasonable suspicion supported Trooper Parkers’s continued questioning of defendant and she consented to the additional questions and the search).
Court of Appeals:
Reversed and remanded (there was not sufficient reasonable suspicion to extend the traffic stop).
Whether Sergeant Parker unlawfully prolonged the traffic stop without reasonable suspicion to do so? Further, was defendant’s consent to search the vehicle valid consent?
Reasonable suspicion did not exist to prolong the stops. As such, defendant’s consent to search the vehicle was invalid as she was detained unlawfully after the mission of the traffic stop was completed.
Absent reasonable suspicion, authority for the seizure ends when tasks tied to the traffic infraction are or reasonably should have been completed. Reasonable suspicion requires specific and articulable facts, as well as the rational inferences from the those facts to believe criminal activity is a foot, viewed through the eyes of a reasonable, cautious officer, guided by his training and experience.
Defendant did not contest the original reason for the stop (driving with high beams) or the license/warrant checks conducted by the officer during the stop (which have been deemed ordinary inquires incident to a traffic stop). Asking defendant to exit the vehicle to address the license address issue was related to safety concerns and legitimate concerns about defendant’s address on her license.
Once Parker gave her the verbal warning about the high beams, the original purpose of the stop had concluded. But, Parker had reasonable suspicion to extend the stop to speak with defendant about the change of address on her license Once Parker had given the defendant the warning about the address change on the license, the second mission of the stop had been completed. Parker had given the defendant verbal warnings about the high beams and the change of address on the license. Parker needed reasonable suspicion to prolong the stop longer and ask the defendant to search her vehicle.
The defense argued that any evidence of reasonable suspicion, defendant’s nervousness demonstrated by her rapid movements, and her association with a known drug dealer were not sufficient to justify extended the stop beyond its two original missions. The Court of Appeals agreed. Nervousness, by itself, does not constitute reasonable suspicion. Many people become nervous during a traffic encounter. Nervousness must be ‘extreme’ to be taken into account for reasonable suspicion.
Second, a person’s mere association with a know drug dealer, without more, does not support a finding of reasonable suspicion. No nexus or direct, specific facts in this case to tie defendant’s association with Mr. Coggins to any particularized suspicion of defendant engaging in criminal activity. Nervousness plus association with a know drug dealer creates merely a hunch, not reasonable suspicion. No reasonable suspicion existed to extend the traffic stop beyond its original missions, which was to address the high beams and change of address on the license.
Since defendant gave Parker consent to search her vehicle while she was unlawfully detained after the traffic stop was completed, her consent to search the vehicle was invalid. It was not a consensual encounter on the roadside because Parker did not return the license until after the search concluded. In essence, she was not free to leave.
State v Castillo
Defendant was pulled over for speeding 72 mph in a 60 mph zone. Upon approach, the officer noticed the Defendant shaking uncontrollably. When retrieving his license, the officer observed a mild odor of air fresher emanating from the vehicle and that the car was operated with a single key (hinting it was probably not defendant’s vehicle). When asked where he was going two to three times, the defendant would not respond or when he did respond, defendant replied with ‘huh.’
Defendant was then asked to step out of the vehicle, submit to a pat down, and sit in the officer’s patrol car. While entering defendant’s information into the warrants license system, the officer asked defendant about marijuana smell. Defendant replied he had smoked three days earlier and so did his friends. Defendant told the officer about his prior marijuana impaired driving conviction in New York. This conversation occurred before the warrant checks came back negative.
Officer had to print out a warning ticket, but he told Defendant he would get a warning ticket well before the ticket was actually printed. Defendant then consented to a search of his vehicle (Heroin and cocaine were found in defendants vehicle and he was charged with numerous drug crimes).
Motion to suppress granted. (The traffic stop was extended without reasonable suspicion and defendant never gave clear consent to search the vehicle.
Court of Appeals:
Reversed and remand (reasonable suspicion did exist to justify the extension of the traffic stop).
Did reasonable suspicion exist lawfully allow the officer to extend the traffic stop beyond the scope of addressing the speeding violation?
Reasonable suspicion did exist, justifying the officer in extending the traffic stop beyond its original scope.
Reasonable suspicion is required to effectuate a traffic stop and it exists when a reasonable, cautious officer guided by his training and experience would believe criminal activity is afoot based on specific and articulable facts, as well as the rational inferences from those facts.
The totality of the circumstances must be considered in an objective light. State v. Fisher, 219 N.C. App 498, 725 S.E.2nd 40 (2012), presents factors that led an officer to believe criminal activity was afoot:
(1) An overwhelming aroma of car air freshener smell;
(2) Defendants claim of driving 5 hours to go on a shopping trip, but not purchasing anything (inconsistent responses to travel plans inquiry);
(3) Defendant’s nervousness;
(4) Defendant’s pending criminal charges for narcotic trafficking;
(5) Defendant was driving within a pack of vehicles;
(6) The car was registered to a third party and not defendant;
(7) Defendant never asked why he was stopped.
The factors in this case giving rise to the officer’s reasonable suspicion, which were discovered before defendant entered the officer’s patrol car and while the warrant checks were running include: defendant’s unusual story about travel plans (would not reveal travel destination), nervousness displayed by the defendant, use of a masking odor, the smell of marijuana from Defendant, the fact the vehicle was registered to a third party; not the defendant, and the defendant’s admission of a prior marijuana impaired driving conviction. Based on these facts in the present case, the officer had sufficient reasonable suspicion to extend the traffic stop beyond the scope of addressing the speeding violation before entering into this patrol vehicle with the defendant.
State v Bullock
Defendant’s vehicle was observed speeding, following too closely, and weaving briefly over the white fog line. When asked to see his license the officer observed the defendant’s hands trembling when handing over the license. Defendant stated that he had just moved to North Carolina. The car was a rental and the defendant was not an authorized driver on the rental car agreement. Defendant also had two cell phones in the vehicle.
The defendant was stopped on I-85, which is a major drug trafficking route between Atlanta and Virginia. The defendant gave inconsistent answers about travel plans. He said that he was lost, but defendant could have turned around at least three exits earlier to get to where he needed to travel. The defendant was asked to step into the officer’s patrol car. The officer told him he was only issuing a warning ticket. A subsequent pat down of the defendant uncovered $372.00 in defendant’s pockets.
While running the warrant database checks, the defendant gave contradictory statements in regards to his girlfriend (he said he had visited her and then said that he had never seen her face to face). Defendant had a criminal history in North Carolina dating back to the early 2000s (showing inconsistent statements about just moving to North Carolina recently). Defendant then consented to a search of his vehicle. Heroin was discovered in the vehicle and the defendant was subsequently charged with multiple drugs crimes.
Motion to suppress for lack of reasonable suspicion denied.
Court of Appeals:
Reversed, reasonable suspicion did not exist to extend the traffic stop beyond its original mission.
Reversed, reasonable suspicion did exist to justify the extension of the traffic stop and thus the subsequent vehicle search was valid.
Was there reasonable suspicion to justify the officer prolonging the traffic stop beyond the initial scope of the stop, which was to address the traffic violations?
Reasonable suspicion did exist to prolong the stop of the defendant beyond the original scope of the initial traffic violations that warranted the stop.
The initial stop of the defendant was uncontested. The officer had reasonable suspicion to initiate a traffic stop due speeding, following too closely, and weaving over the white line. Once the stop began, the officer lawfully asked the defendant to step out of the vehicle (justified by officer safety concerns). The frisk of the defendant was also lawful as it both enhances officer safety and it only lasted eight to nine seconds (very brief frisk). Placing the defendant in the patrol did not unlawfully extend the stop.
Shortly after pulling the defendant over, the officer became aware of the defendant’s nervousness, two cell phones in the vehicle, and the fact that the rental car was in the name of a third party. While running the warrant checks through the database, the officer was free to speak with the defendant until the checks were completed. Defendant also gave inconsistent answers in regards to his travel plans and $372.00 was found on his person during the frisk.
The officer’s initial observations of defendant (nervousness, two cell phones, third party rental car, and failure to make eye contact) along with the information gathered during the warrant checks (inconsistent and contradictory statements about just moving to North Carolina) gave the officer sufficient reasonable suspicion to prolong the traffic stop beyond its initial purpose and thus request a drug dog to the scene to search defendant’s vehicle.
State v. Johnson
The officer saw a tan truck driving with an expired tag. The officer initiated a traffic stop and spoke with the driver, ‘Waters.’ As they talked, the officer noticed several cell phones and other loose items scattered throughout the truck. The officer also notice a box shape PCM, which is a device the controls the vehicle. The PCM device is usually in the engine block of the vehicle, though it is not illegal to have the PCM in the passenger compartment. The defendant, who was a passenger in the vehicle, appeared nervous. The defendant could not provide consistent answers about his travel plans. Defendant also exhibited heavy breathing and he mumbled while talking.
When the driver of the vehicle, Waters, provided his license to the officer, defendant acted extremely nervous (his neck veins were pulsing). Both the driver and the defendant could not clearly state where their destination was. The truck was properly register to Waters, but the license plate and inspection were expired. After citing Waters for the license plate infraction, he made him aware of his court date and then asked Waters to step out of the vehicle to answer additional questions.
By this time, another officer had arrived to the scene and went to speak with the defendant, who again appeared extremely nervous. The officer noticed a bulge protruding in defendant’s pants. The officer then asked the defendant to step out of the truck (officer thought the bulge may be a handgun). The bulge was in fact a bag of heroin that fell out as defendant stepped out of the vehicle. The defendant was charged with several drug crimes and filed a motion to challenging the reasonable suspicion to extend the stop beyond its original scope.
Motion to suppress denied (reasonable suspicion existed to extend the stop).
Court of Appeals:
Upheld motion to suppress denial.
Did the officer have sufficient reasonable suspicion to extend the traffic stop beyond its original lawful duration and request the defendant to submit to a Terry-frisk (pat down)?
The officer had the requisite reasonable suspicion to extend the traffic stop and subsequently ask the defendant to submit to a pat down search.
A reasonable, cautious officer guided by his experience and training only needs specific and articulable facts, taken with the rational inferences from the those facts, to believe criminal activity is afoot. It is not a very demanding standard. Courts look to the totality of the circumstances. The Court found the following facts, taken together, rose to sufficient reasonable suspicion to allow officer Ward to extend the traffic stop beyond its original scope:
(1) Waters and Defendant could not answer basic questions about their travel plans;
(2) Waters changed his story;
(3) No explanation was given for the expired registration;
(4) It is unusual to find a PCM on the floor of a truck (usually in the engine department of a vehicle);
(5) Defendant displayed extreme nervousness (which continued throughout the encounter);
(6) Several cell phones in the vehicle.
Taken as a whole, these facts in concert demonstrate reasonable suspicion of criminal activity. Thus, the officer had reasonable suspicion to lawfully prolong the traffic stop and ask the defendant to submit to a precursory pat down.
State v Downey
Defendant was stopped for traffic violation. Upon the officer requesting defendant’s license and registration, defendant’s hands were shaking, he was breathing heavily, and he failed to make eye-contact with the officer. The officer also noted a prepaid cell phone and a ‘Black Ice’ air freshener in the vehicle. In the officer’s training and experience, he knew that these were potential signs of drug trafficking.
The car was not registered to the defendant and he gave a vague answer about his travel plans (defendant stated he was looking for a new place to live). The officer then discovered that the defendant has prior burglary and drug convictions. The officer then issued a warning ticket for the traffic violation and returned his documentation. After the documents were returned, the officer asked defendant if he could search the vehicle. The defendant refused to consent.
Despite not having consent, the officer called a drug dog to the scene, which then alerted to a positive indication for drugs in the vehicle. The vehicle was subsequently searched. The defendant was charged with various drug related offenses. Defendant filed a motion challenging the extension of the stop by the officer.
Motion to suppress denied.
Court of Appeals:
Affirmed trial court decision.
Whether the officer developed reasonable suspicion to extend the traffic stop before issuing the warning ticket and returning all of defendant’s documents.
Reasonable suspicion did exist to justify the officer in extending the traffic stop.
Once an officer initiates a traffic stop, he cannot extend the stop beyond the time necessary to issue the traffic citation, unless the officer has reasonable, articulable suspicion of another crime. Defendant argued that there was not sufficient reasonable suspicion developed to
extend the stop before the officer issued the warning ticket and returned all of defendant’s documents. The Court of Appeals disagreed.
The officer observed many things before issuing the ticket culminating into reasonable suspicion to allow the officer to lawfully extend the stop. These six factors taken together; 1) defendant’s nervous behavior; 2) the use of a ‘black ice’ air freshener favored by drug couriers; 3) prepaid cell phone in the vehicle; 4) use of a car registered to a third party; 5) suspicious responses to questions; and 6) prior drug convictions, gave rise to reasonable suspicion. Thus, the officer was justified in extending the stop beyond the original scope of addressing the traffic violations.
State v Reed
Trooper Lam observed defendant’s vehicle, a Nissan Altima, traveling at 78 mph in a 65 mph zone. Defendant was traveling on I-95. Upon approach, Trooper Lam saw defendant’s fiancee, Usha Peart, in the passenger seat with a female pit bull in her lap. Trooper Lam also observed energy drinks, air freshness, and dog food scattered on the vehicle’s floor. The defendant gave Trooper Lam his New York driver’s license, a registration card, and an Enterprise rental car agreement. The rental agreement listed Ms. Peart as the renter and defendant as an authorized driver.
Trooper Lam then told defendant to come sit in Lam’s patrol car. After a quick pat down, in which a pocket knife was uncovered, defendant sat in the patrol car. Defendant did not initially close the passenger side door, but was told by Trooper Lam to shut the door completely. Defendant told the Trooper Lam he was visiting family in Fayetteville, North Carolina. Trooper Lam told the defendant that the rental agreement only covered New York, New Jersey, and Connecticut ( a problem which could be solved by a phone call to the rental company). Defendant admitted a prior arrest for robbery when he was in the military.
Trooper Lam then noticed the rental agreement was for a Kia Rio and not a Nissan Altima. Trooper Lam then stepped out to speak with Peart. Ms. Peart told the trooper they were visiting family in Fayetteville, North Carolina with possible stops in Georgia or Tennessee. Ms. Peart could not find the rental agreement for the Altima, but stated that they originally had a Kia Rio, which was in accident. The rental company gave the couple the Nissan Alitma as a replacement. Trooper Lam then told Peart he would be issuing defendant a speeding ticket and the two would ‘be on their way.’
Trooper Lam returned to his patrol car and called the rental company confirming everything was fine with the rental car. The defendant’s license came back clean. Trooper Lam then issued defendant a warning ticket and returned all of defendant’s documents. Trooper Lam then stated he was ‘completely done with the traffic stop,’ but wanted to ask defendant additional questions. Defendant just nodded his head. Trooper Lam never told defendant he was free to leave.
At this point, another officer showed up and stood dirtily beside the passenger door where defendant was sitting. Trooper Lam asked defendant if he was carrying any guns or drugs and asked to search the vehicle. Defendant told Trooper Lam to ask Peart. Trooper approached Peart and at this time, two more officers showed up to the scene.
At first Peart did not give consent to search the car, but upon Trooper Lam’s insistence, she acquiesced to the search. Cocaine was found in under the back passenger seat. Defendant subsequently filed a motion to suppress evidence gathered at the stop, arguing Trooper Lam extended the stop beyond its lawful duration without reasonable suspicion.
(denied defendant’s motion to suppress denied).
Court of Appeals:
(trial court committed reversible error in denying motion).
U.S. Supreme Court
(Both the State and Defendant filed a petition for a writ of supersedeas. The Court then vacated the opinion of the Court of Appeals and remanded for reconsideration in light of the Supreme Court’s recent decision in State v. Bullock.
Court of Appeals #2:
(reversed trial court decision, no reasonable suspicion existed to extend the stop beyond its original, lawful duration).
Whether Trooper Lam had reasonable suspicion to detain the defendant after the completion of the traffic stop and search the defendant’s vehicle?
Reasonable suspicion did not exist to seize the defendant after the completion of the traffic stop. Thus, the search of the vehicle should be suppressed as fruit of the poisonous tree.
An officer may offend the Fourth Amendment if he unlawfully extends a traffic stop by asking a driver to step out of a vehicle, asking the a driver to sit in his patrol car (thereby creating need for a weapons frisk), or by telling a driver to close the patrol car’s front passenger door, while the officer questions defendant about matters unrelated to the traffic stop.
Based on the State v. Bullock decision, the Court concluded that Trooper Lams actions of requiring Defendant to exit his car, frisking him, and making him sit in the patrol car, while he ran record checks and questioned Defendant, did not unlawfully extend the traffic stop. However, a major distinction in this case from Bullock is that after Trooper Lam returned defendant’s paper work and issued the warning ticket, defendant remained unlawfully seized in the patrol car.
Normally, ‘an initial traffic stop concludes and the encounter becomes consensual only after an officer returns the detainees’s driver’s license and registration.’ State v. Jackson and State v. Kincaid (stating a reasonable person, under the circumstances, would have felt free to leave when the officer returned the documents to the defendant). Thus, the first seizure concluded when the officer returned the documents to defendant. However, the governing inquiry from United States v. Mendenhall, is whether under the totality of the circumstance, a reasonable person in the detainee’s position would have believed that he was not free to leave.”
In this case, a reasonable person in defendant’s position would not feel free to leave the scene. Once Trooper Lam returned his documents, defendant was seated in the patrol car. Trooper Lam continued to question the defendant. When Trooper Lam told defendant he would ask Ms. Peart for consent to search the vehicle, he told the defendant to “sit tight.”
At this point, a second officer was present, standing directly beside the passenger seat where defendant was sitting. A reasonable person would feel free to leave when the trooper told him to stay in the patrol car and another trooper was positioned outside the vehicle door. Therefore, even after defendant’s documents were returned, defendant remained seized. To detain a driver by prolonging a traffic stop beyond its original, lawful duration, an officer must reasonable, articulable suspicion that illegal activity is a foot. In this case, Trooper Lam did not have reasonable suspicion to detain the defendant after the original mission of the traffic stop was concluded (issuing the speeding ticket).
Defendant appeared nervous, Peart had a dog in her lap, dog fog food was scattered across the floorboard of the vehicle, the car contained air fresheners, trash and energy drinks. All of which constitute legal activity consistent with travel. Though suspicious at first, the rental car agreement checked out fine. This case is also distinguishable from Bullock because the defendant here did not exhibit extreme nervousness, he was actually an authorized driver on the renal agreement, multiple cell phone were not found in the vehicle. Also, defendant did not give illogical or inconsistent statements when it came to his travel plans, confirmed by his fiancee. Therefore, the lawful duration of the stop ended when Trooper Lam returned defendant’s license and documents.
Even though the stop had ended, defendant was still seized as he was told not to exit the patrol car and another officer was standing right outside his door. This was not a consensual encounter as a reasonable person in defendant’s position would not feel free to leave the scene. With defendant being seized after the traffic stop concluded, Trooper Lam needed reasonable suspicion to justify the detainment of the defendant. Based on the facts Trooper Lam did not have reasonable suspicion to justify detaining the defendant after the completion of the traffic stop and thus, the search of the defendant’s vehicle was fruit of the poisonous tree and must be suppressed.
Factors that North Carolina Courts look to
when considering whether sufficient reasonable suspicion
existed to prolong a traffic stop:
Reasonable Suspicion Justified Extension of the Stop
State v Castilllo
- Defendant’s hands shaking uncontrollably
- Defendant seemed extremely nervous
- Mild odor of air freshener in the car
- Defendant operating vehicle with a single key
- Defendant unwilling or unable to disclose travel plans
- Defendant respond ‘huh’ to some questions
- Smell of marijuana on defendant’s person
- Defendant disclosed a prior arrest for marijuana-based DWI
- Third party vehicle registration
State v Bullock
- Defendant’s hands trembled a little bit
- Defendant said he missed his exit (could have turned around three exits earlier)
- Third party registered vehicle
- Defendant appeared nervous (breathing in and out from the stomach and making little
- Traveling on I-85 (known interstate for drug traffickers between Atlanta and Virginia
- Two cell phones in center console; defendant was sole occupant of the vehicle.
State v Johnson
- Defendant appeared extremely nervous (neck veins pulsing and rapid breathing)
- Defendant and driver gave inconsistent, unclear responses about travel plans
- Defendant mumbled
- PCM device in passenger area that belongs in engine compartment
- Three cell phones in passenger area; only two occupants
State v Downey
- Defendant appeared extremely nervous
- Odor of ‘black ice’ air freshener in the car
- Prepaid cell phone was in the vehicle
- Third party vehicle registration
- Defendant gave suspicious responses to questions
- Defendant had prior drug convictions
No Reasonable Suspicion Justified Extension of the Stop
State v Bedient
- Defendant appeared nervous (rapid movements and reaching for sun visor)
- Defendant had associate with a know drug dealer
State v Reed
- Energy Drinks, trash, air fresheners, and dog food scattered on the floor of vehicle
- Defendant authorized driver on rental car agreement (rental agreement only
covered three states, not including North Carolina, was for another type of vehicle, but
all checked out fine)
- Admission by defendant of prior arrest for robbery
- Did you notice if my client appeared nervous?
- My client made eye-contact with you, correct?
- My client gave clear, concise answers about his travel plans, correct?
- Did you notice any unusual odors emanating from the vehicle (air freshener)?
- Did you uncover any criminal convictions in my client’s past?
- Did you find any active warrants on my client?
- When did you conduct the warrants search?
- Was the vehicle registered to my client?
- Did you notice multiple cell phones in the vehicle?
- Was my client in a high crime area when you encountered him?
- Was he traveling on a stretch of road know for drug trafficking?
- How long did the stop last?
- At what point did you return my clients license and registration?
- At what point did you issue the citation or warning?
- How long does it take to complete the warrant record check?
- Was my client asked to exit his vehicle and sit in your patrol car?
- Was my client’s address correct on his license?
- Did you notice any unusual devices in the vehicle?
- What was the initial reason for the stop?
Post Rodriguez World within the DWI Context
In many DWI arrests, the initial stopping officer will request that an officer with more experience in DWI detection to come to the scene to aid in the investigation. This could be because the initial officer has not completed the National Highway Traffic Safety Administration’s (“NHTSA”) standardized field sobriety training. Without such training, an officer should not administer field sobriety tests on suspects and most likely should not administer an alcohol screening test as well.
Remember, since Rodriguez, an officer must have sufficient cause to extend a traffic stop beyond its original, permissible duration. Factors relevant to whether there is reasonable suspicion to extend a traffic stop in the DWI context include: an odor of alcohol, red glassy eyes, slurred speech, exhibiting one of the 24 driving cues of impairment developed by NHTSA (swerving, drifting, weaving, wide turns, etc), open container in the vehicle, the driver’s inability to follow instruction, or the driver’s difficulty in retrieving license and other documents.
The analysis will center around whether the initial stopping officer had reasonable suspicion to extend the traffic stop to bring in a secondary officer to investigate possible impaired driving. The more experienced officer is analogous to a drug dog being called to the scene upon the stopping officer’s request. Questions to consider should include what the initial stop was for and the initial observations of the officer as he approached the vehicle. You will want to investigate the facts used by the officer to extend the stop. How much time did it take for the second officer to arrive to the scene. When did the officer start writing the citation. When did the officer conduct the warrant checks and how long did this take.
An interesting situation can arise where a secondary officer is called to the scene only to administer an alcohol screening device. Pursuant to state statute, the alcohol screening device’s numerical value cannot be used by the officer in making his arrest decision. When the only thing added to the investigation is an alcohol screening test, there is a legitimate issue of whether the stopping officer did in fact use the alcohol screening device’s numerical value in formulating his arrest decision.