Last April, 2015, the United States Supreme Court in Rodriguez v. United States, 135 S. Ct. 1609 (2015), significantly limited the scope of a traffic stop. The Court ruled that an officer may not extend a completed traffic stop for any period of time, no matter how brief, to conduct a dog sniff—absent reasonable suspicion of criminal activity (or consent). The Court rejected the government’s argument that an officer may incrementally prolong a traffic stop, which some lower courts, including North Carolina’s, had justified as a de minimis intrusion. The Court reasoned that a dog alert is not a permissible part of a traffic stop because it detects evidence of ordinary criminal wrongdoing, which is not part of an officer’s traffic mission. The Court, however, clearly indicated that if a dog sniff or other non-traffic-related activity does not add any time to the stop (in this case, it added 7–8 minutes), then the dog sniff or other activity is valid under the Fourth Amendment, as it previously had ruled in Illinois v. Caballes, 543 U.S. 405 (2005).
Motor Vehicles
What to Expect After a Traffic Stop: The Movie
As mentioned in a recent News Roundup, the Raleigh Police Department (RPD) produced a short video entitled “Traffic Stops: What to Expect as a Motorist,” instructing drivers who have been pulled over by law enforcement on how they should behave. It appears that the RPD had the laudable goal of educating the public to ensure the safety of both officers and motorists. Captain Bruce, the officer who narrates the video, states that “by following a few basic steps, the experience can progress without misunderstanding or conflict.” The video is garnering attention: As of today, it has received 8,446 views on YouTube, with “likes” outweighing “dislikes” 21 to 15. This blog offers legal commentary on a few of the points made in the video, using a scale of green light for what appear to be sound instructions, yellow light for instructions that may raise questions, and red light for an instruction that may prove misleading to citizens.
Do DWI Suspects Have a Right to the Least Intrusive Chemical Test?
In its seminal opinion establishing the State’s right to withdraw blood from a DWI suspect over his objection and without a warrant when there are exigent circumstances, the United States Supreme Court left a significant question unanswered. The court in Schmerber v. California, 384 U.S. 747 (1966), noted that the petitioner “is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the ‘Breathalyzer’ test petitioner refused. . . . We need not decide whether such wishes would have to be respected.” Id. at 771.
So how have courts in the ensuing four decades answered this question? Must an impaired driving suspect be offered the least intrusive type of chemical test available or a choice about the type of testing when he or she has a sincere objection to a particular test?
State v. Osteen: Court of Appeals Approves Admission of Lay and Expert Opinion Testimony Regarding Drug Impairment
Proving that a driver was impaired by alcohol is not all that difficult, particularly when the driver submits to a breath test and the result is .08 or more. Proving that a driver was impaired by drugs or by a combination of alcohol and drugs is considerably more challenging. But an opinion released yesterday by the court of appeals demonstrates one way in which it can be done, even without a confirmatory chemical test.
Advising a Defendant Who Does Not Speak English of His Implied Consent Rights
I almost missed this one. While I regularly monitor the published opinions of our state’s appellate courts, I generally skip the unpublished decisions. So I initially overlooked the court of appeals’ opinion in State v. Martinez, ___ S.E.2d ___ (N.C. App. Jan. 5, 2016) (first released as unpublished, but later published), which addresses a recurring question in DWI cases: Must a defendant who does not speak English be advised of statutory implied consent rights in a language that he or she understands?
Selfies, Distracted Driving, and the Virginia Plan
Everyone knows that it is unlawful to text while driving in North Carolina. But what’s the legal status of all of the other distracting things people do with their phones? Is it unlawful to take a selfie while driving? To post the selfie to Instagram? To look at a friend’s driving selfie on Instagram? To read another friend’s Facebook status update? To search the web for the latest weather forecast?
Understanding Whether a Seizure Occurs When an Officer’s Vehicle Blocks Another Vehicle
In California v. Hodari D., 499 U.S. 621 (1991), the United States Supreme Court reformulated the definition of a seizure of a person under the Fourth Amendment. This post discusses this case and its application to a particular issue: whether an officer’s blocking another vehicle with the officer’s vehicle is a seizure of the vehicle occupants.
Update on U.S. Supreme Court’s Ruling in Rodriguez v. United States Concerning Extension of Traffic Stops
Last April, the United States Supreme Court in Rodriguez v. United States, 135 S. Ct. 1609 (2015), significantly limited the scope of a traffic stop. The officer in Rodriguez completed a traffic stop for driving on the shoulder of a highway after checking the vehicle registration and driver’s licenses of the driver and passenger, conducting a warrant check, returning all documents, and issuing the driver a warning ticket. The officer then asked the driver for consent to walk his drug dog around the vehicle, but the driver refused to give his consent. Nonetheless, the officer told the driver to turn off the ignition, leave the vehicle, and wait for a second officer. When the second officer arrived, the first officer walked his drug dog around the car, and the dog alerted to the presence of drugs. A search of the vehicle revealed methamphetamine. Seven to eight minutes had elapsed from the time the officer issued the written warning until the dog’s alert.
Most Wanted: Automatic Emergency Brakes
There are several reasons why I like Volkswagen’s new “Dad, Stop!” commercial showcasing the emergency braking system in the 2016 Passat. First, I drive a teenager to school. He jumps out of the car as quickly as possible when we arrive. Apparently there is nothing to be gained socially by being seen with your mother. So I can identify. Second, I was rear-ended a few weeks ago. The back of my car was damaged, and the car that hit mine had to be towed from the scene. All of its airbags deployed on impact. I’m just glad no one was hurt. Automatic emergency braking (if it works the way it appears to in the commercial) would have prevented that accident.Third, my mother looked over at me in a similar way to the dad in the commercial as we were leaving my wedding rehearsal many years ago. When she looked back ahead, she saw brake lights. She swerved off the road to avoid hitting the car in front of us and ran over a fire hydrant. What a mess. Automatic emergency braking might have gotten us all to the rehearsal dinner on time.
The National Transportation Safety Board also thinks automatic emergency braking, which it calls “collision avoidance technology” is a laudable concept. In fact, promoting the availability of this technology made the NTSB’s 2016 Most Wanted List. NTSB has issued such a list for more than 25 years. The chairman described the list in a recent press conference as a “roadmap from lessons learned to lives saved.”
Figuring out how to Best Share the Road
Cycling is big on the street where I live. A bike shop recently opened nearby and cyclists frequently head out for Sunday afternoon group rides. Sometimes there’s a theme. A few months ago, the cyclists were all wearing tweed and tartan and many of the bikes were adorned with flowers. I find it both entertaining and uplifting to watch these folks ride.
I’m a bit less sanguine about the cyclists I encounter crossing Jordan Lake on Farrington Road at 5:30 p.m. on a weekday. That’s a busy, narrow road with no bike lane. During that time of day, when everyone is heading home from work, there often is little opportunity to pass a cyclist who isn’t traveling the speed limit.
And I’m downright hostile to cyclists who use the right hand edge of a single lane to pass a queue of motor vehicles stopped a stop light to claim a position in front.
My admittedly schizophrenic reaction to sharing the road with cyclists illustrates some of the difficulties faced by the working group charged with assisting the North Carolina Department of Transportation (NCDOT) in formulating statutory changes to better ensure the safety of bicyclists and motorists on the state’s roadways. Perhaps, then, it was predictable that NCDOT’s recommendations would be a mixed bag, generating both cheers and jeers from the cycling community.