Court of Appeals Finds Extension of Traffic Stop Unsupported by Reasonable Suspicion

Last week, the court of appeals decided State v. Bedient, a significant post-Rodriguez opinion on traffic stops. The court ruled that an officer lacked reasonable suspicion to extend a stop by a few seconds to ask the driver for consent to search. This post summarizes and analyzes the case.

Facts. A deputy stopped the defendant at 11:30 p.m. for failing to dim her high beams. The two had a brief preliminary discussion, during which the defendant identified the sole passenger in the vehicle as her daughter. The officer then asked the defendant for her license. The defendant took 20 seconds to locate it, and the officer thought that she “seemed nervous because she was fidgety and was reaching all over the car and in odd places such as the sun visor.” The deputy determined that he had seen the defendant the night before at the home of a local drug dealer, and remembered that the defendant’s husband had called the sheriff’s office to complain that the defendant “was taking up residence” with the drug dealer.

The officer then returned to his vehicle to run the defendant’s license and to run a warrant check on the driver and her passenger. While doing so, the officer saw the defendant “moving around her car and reaching for her sun visor again.” The officer issued a verbal warning for the headlight violation, spoke briefly with the defendant about whether the address listed on her license was current, then asked the defendant (1) whether she had ever been in trouble for anything, and (2) whether she had anything unlawful in her car. The defendant answered both queries in the negative and stated, “you can look.” The officer searched the car and found drugs and paraphernalia.

Procedural history. The defendant moved to suppress, arguing that the officer had unlawfully extended the stop after giving her the warning. A superior court judge denied the motion, finding that the officer had reasonable suspicion to extend the stop and that the defendant voluntarily consented to the search during the properly extended stop. The defendant pled guilty, received a probationary sentence, and appealed.

Court of appeals opinion. The court of appeals reversed. It found that several of the superior court judge’s factual findings were not supported by the record. (For example, the judge found that the defendant’s nervous, fidgeting behavior was “consistent with use of methamphetamine,” but the officer never testified to that effect.) Indeed, the court stated that only two facts found by the judge were supported by the record: “defendant’s nervous behavior during the traffic stop, evidenced by her stuttering, rapid movements, and fixation with her sun visor, and her association with a drug dealer.”

Those two facts didn’t add up to reasonable suspicion. Nervousness, the court stated, “is insufficient by itself to establish reasonable suspicion,” because it “is a common response to a traffic stop.” Similarly, the court indicated, “a person’s mere association with or proximity to a suspected criminal does not support a conclusion of particularized reasonable suspicion.” As to the combination of the two factors, the court found that they could give rise only to a “hunch,” not reasonable suspicion, because even together they would not “eliminate a substantial portion of innocent travelers.” Op. at 19, quoting United States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011).

Comment. Overall, the court’s analysis strikes me as sound. Even though the stop was extended by just long enough for the officer to ask the driver whether she had been in trouble before and whether she had anything in her car, we know from Rodriguez v. United States, __ U.S. __, 135 S. Ct. 1609 (2015), that there is no de minimis exception to the Fourth Amendment. However, like so many Fourth Amendment cases, the result is quite fact-specific. If the officer had testified that the defendant seemed high as well as nervous, or if the officer stated that the defendant’s movements with respect to the visor appeared to be furtive rather than anxious, the case might have come out differently.

As a final note, the widespread use of video recording continues to revolutionize appellate review. In this case, the court of appeals found one of the trial judge’s findings of fact (concerning the speed with which the defendant identified her passenger in response to the officer’s inquiry) unsupported based on its review of the dash cam video. I’m sure that smart appellate lawyers have thought deeply about this, but the traditional rule of deference to a trial court’s findings of fact may be less supportable when the appellate court is able to review the same video that the trial judge saw.

9 thoughts on “Court of Appeals Finds Extension of Traffic Stop Unsupported by Reasonable Suspicion”

  1. Maybe officers should start off traffic stops with the Miranda Warning. Just go ahead and cover that base now since that’s the direction things are heading.

  2. This is not a problem. We in law enforcement are flexible and learn from every case.

    For instance, we now know to articulate in court that “the defendant’s nervous, fidgeting behavior was “consistent with use of methamphetamine.” Easily presented at daily assembly before shift.

    And a minor adjustment in procedure by placing any search related questions before the issuance of any warning/citation is certainly prudent.

    And you know how sometimes the dispatchers are really busy or the state’s computers are really swamped and those 28/29s are slow in coming back. I see no issue with a pleasant conversation with the violator while waiting for those returns.

    For every one the defense attorneys ‘win’ they have guaranteed that the hundreds of guilty to follow will not. We do learn from our mistakes.

  3. Schrecker, today’s decision in State v. Bullock shows that your cute games won’t work. Nice try to get around the Constitution, though. I trust you’ll come up with other work-arounds. Never let the law impede you from doing what’s “right,” brother. Or, you can just wait for the NCSC to eviscerate the Constitution for you.

  4. This is not a defense attorney win. The NC court is applying the seizure analysis that has come out of the Rodriguez case which itself was kind of a progeny of years and years of traffic stops being extended for every single reason under the sun. It’s not a us vs. them, really, it’s the 4th Amendment. When I argue a motion asking the judge to apply the law, I do not think of it as me against the officer. Anyway, it’s the DA that is representing the state’s position, not the witness. It is an adversary system as it probably needs to be, but the defense attorneys are not the enemy.

    • The problem with defense attorneys these days is that they will twist, turn, and change a statement or fact in any way they can to muddy the truth. I wholly understand that a defense attorney’s job is to do everything within the law to defend their client. But knowingly twisting facts and circumstances and allowing a client to lie from the stand is a low down dirty thing to do. It so often is not about justice, right or wrong, but how the facts get twisted and lies told in a case.

  5. Correct me if I’m wrong, but if I hand the offender their citation, registration, insurance card and driver’s license back and make the statement “Your free to go” and start to walk away but then after a second or two hesitation I turn and say “Oh, by the way, do you have marijuana in your car? It smells like it. May I search your car?” am I not now under the guidelines of a ‘Terry Stop’ [a brief detention of a person by police on reasonable suspicion of involvement in criminal activity but short of probable cause to arrest]?

    I’m not required to tell them that they do not have to submit. I’ve retained nothing that would make a reasonable person believe that they could not leave. In fact, they had been told that they could go. If they choose to stay and talk with me then I see no extension of a ‘traffic stop’, merely the conducting of a ‘Terry Stop’, and there’s no time limit on Terry Stops as far as I know.

    • My opinion is this… If you as the officer smell marijuana, why ask for consent? In my book that is probable cause, and I would search the vehicle based on the odor and Carroll. Sometimes, we as officer make things harder that is, and we get punished with wide hitting case law. Remember… K.I.S.S.???? That was beaten into me as a rookie, and I try to live by that standard.


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