May an officer prolong a traffic stop to wait for a second officer to come to the scene? An officer may want another officer present to provide backup, or may need assistance from an officer who speaks Spanish, is proficient at administering Standardized Field Sobriety Tests, or is a certified Drug Recognition Expert. Under Rodriguez v. United States, 575 U.S. __ (2015), a traffic stop may last no longer than necessary to complete the “mission” of the stop — addressing the traffic violation that prompted the stop while attending to officer safety. When waiting for another officer is part of the mission of the stop is a question with which courts across the country are grappling.
Waiting for backup. Several post-Rodriguez cases have addressed whether an officer may wait for backup. Rodriguez itself both recognized that officer safety is a part of the mission of a traffic stop and cautioned that purported “safety precautions taken in order to facilitate” investigations that detour into unrelated crimes are not permissible. Lower courts considering the issue have generally credited officers’ safety concerns and have authorized delays to wait for backup. However, virtually all of the reported cases have involved vehicles with multiple occupants or other indicators of possible danger. Readers interested in further discussion of the propriety of waiting for backup may wish to consult page 58 of Pulled Over, a School of Government book about traffic stops.
- State v. Campola, __ N.C. App. __, 812 S.E.2d 681 (2018) (where an officer stopped a vehicle with multiple occupants, the officer’s “request for back-up by [another officer] was itself a safety precaution,” so any delay associated with waiting for the second officer to arrive was reasonable)
- United States v. Green, 897 F.3d 173 (3d Cir. 2018) (discussing a somewhat ambiguous fact pattern and stating that “[a]ssuming [an officer’s] request for backup was motivated by safety concerns inherent to the traffic stop, then any actions taken while waiting for backup to arrive” did not improperly extend the stop)
- United States v. Orth, 873 F.3d 349 (1st Cir. 2017) (“Appellant wisely does not challenge the extension of the stop to allow for the arrival of a second officer to assist” where the first officer “called for backup because he was dealing with an aggressive passenger . . . and a driver that was not willing to speak to him.”)
- Presley v. State, 227 So.3d 95 (Fla. 2017) (an officer stopped a vehicle with multiple occupants, one of whom attempted to leave the scene and struggled with the officer; under these circumstances, the stop “was reasonably extended in order for backup officers to arrive and assist”)
- Alvarado v. State, 468 S.W.3d 211 (Tex. Ct. App. — Houston 2015) (an officer was called to a nightclub to investigate an accident in the parking lot; the driver who caused the accident turned out to be an off-duty police officer who apparently had been drinking; the responding officer called his sergeant pursuant to an agency policy requiring officers to notify their supervisors when investigating other officers; this caused a delay of approximately 15 minutes while the officer waited for his sergeant to come to the scene, but the delay was reasonable in light of the policy)
- State v. Montgomery, 462 S.W.3d 482 (Tenn. 2015) (two officers responded to a call regarding possible impaired driving by a woman in a black Ford Mustang; the woman had come to another woman’s house and there was a possibility of “conflict” over a man; on the way to the house, the officers saw a black Mustang in a church parking lot; one officer detained the two occupants of the vehicle for about 10 to 15 minutes while the second officer went to the house; when the second officer returned to the church, he conducted field sobriety tests on the driver and arrested her for DWI; the 10 to 15 minute delay was reasonable because the second officer might have learned something relevant at the house, and because it was “prudent” to wait for the second officer “given the presence of a passenger inside the Defendant’s vehicle”)
- United States v. Burwell, 2019 WL 982168 (11th Cir. 2019) (unpublished) (calling for backup was related to officer safety concerns and was within the mission of a traffic stop initiated for failing to maintain lane control where the stop took place at 2:46 a.m. in an isolated area, two people were in the stopped vehicle, the driver appeared to be nervous and had prior drug convictions, and the driver provided an unusual explanation for his travel)
Waiting for an officer who speaks the driver’s language. If a driver is not proficient in English and an officer is unable to communicate effectively with the driver, the officer may call for the assistance of another officer who speaks the driver’s language. In many instances, a delay to await the second officer will be reasonable, though it is possible to imagine circumstances in which a court would find that the first officer could or should have used telephone or computer-based translation services instead.
- Flores v. State, 818 S.E.2d 90 (Ga. Ct. App. 2018) (ruling that a delay of approximately 13 minutes to await the arrival of Spanish-speaking officer was not improper because “[a]n officer’s mission in a traffic stop ordinarily includes activities . . . [such as] explaining to a vehicle owner . . . that her vehicle did not comply with legal requirements” like limits on window tinting)
- Cf. United States v. Rivas, 2017 WL 957387 (S.D. Ala. Mar. 10, 2017) (unpublished) (finding that “the length of [a] stop was reasonable given that [the driver] and [the officer] could not understand one another” and had to use a “translation program” that involved each typing words into a computer that then translated the text)
Waiting for a DRE or an officer who is proficient in administering SFSTs. An officer who is not very experienced at handling impaired driving cases may ask for assistance from another officer with more training. The few cases in this area have ruled or suggested that modest delays for this purpose are consistent with the mission of the stop. Of course, different facts might yield different results. For example, a delay to enlist the assistance of a DRE would likely be unreasonable if the case involved a suspicion of alcohol impairment.
- Cagle v. State, 509 S.W.3d 617 (Tex. Ct. App. — Texarkana 2016) (a deputy stopped a truck and smelled alcohol on the driver’s breath; the deputy did not “work DWIs” so he called for a state trooper who could administer field sobriety tests; waiting for the trooper extended the stop by 21 minutes, but “[b]ecause the assistance of a law enforcement officer to conduct DWI sobriety tests in this situation was necessary, the twenty-one minutes spent awaiting his arrival served legitimate law enforcement purposes” and was a reasonable delay)
- Cf. Windham v. Harris County, 875 F.3d 229 (5th Cir. 2017) (a traffic stop was not transformed into an unlawful arrest when the first officer “determined that he needed the opinion of . . . a certified drug recognition expert, to assess the extent of [the driver’s] impairment [and the second officer] arrived as quickly as he could . . . [and] administered the [pertinent] tests expeditiously once he arrived”)
- Cf. United States v. Hawley, 660 Fed.Appx. 702 (10th Cir. 2016) (unpublished) (an officer who was “not formally trained to determine whether a driver is under the influence of alcohol or drugs” suspected a driver of being impaired; the officer called for a DRE; another officer arrived and conducted a dog sniff while the first officer was waiting for the DRE to arrive; the opinion notes that a lower court found that because the sniff took place “prior to the DRE arriving on scene, there was no undue delay because the purpose of the stop—to investigate whether [the driver] was driving under the influence—had not yet concluded”)