Fourth Circuit Adds to the Controversy over Traffic Stops

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I’ve written about traffic stops at some length, in this paper. One of the areas in which the law is unsettled is the extent to which officers may engage in investigative activity during the stop that is not related to the purpose of the stop, especially if such investigative conduct prolongs the stop. Here’s what my paper says about that:

Whether an officer may briefly extend a stop in order to engage in the investigative techniques described immediately above is controversial. (A lengthy extension of the stop would plainly be improper, unless the officer had developed reasonable suspicion regarding another criminal offense.) The case law in North Carolina is inconsistent, with brief delays in order to conduct dog sniffs permitted under State v. Brimmer, 187 N.C. App. 451 (2007) (delay of approximately four minutes to allow a dog sniff to take place was de minimis), but brief delays associated with requests for consent to search arguably prohibited by [State v. Parker, 183 N.C. App. 1 (2007)], and brief delays for questions unrelated to the stop perhaps barred by State v. Jackson, 199 N.C. App. 236 (2009) (finding that an officer unreasonably extended a traffic stop when she asked just a handful of drug-related questions).

Most [recent] federal cases have allowed short delays for any of the investigative techniques under consideration. [Citations follow.]

The Fourth Circuit recently decided a major case on point. The case is United States v. Digiovanni, __ F.3d __ (4th Cir. 2011). The case began when a Maryland officer stopped the defendant on I-95 for a traffic violation. The stop began at 11:53, and for about ten minutes, the officer essentially conducted a drug investigation, asking the defendant about his travel plans, whether he had any drugs in the car, whether the officer could search the car (the defendant consented, but wasn’t able to open the trunk of the vehicle, so no search was completed), and so on. At 12:03, the officer began a license check, and at 12:08, the officer returned the defendant’s license, issued him a warning ticket, and told him he was free to go. Just moments later, however, the officer reminded the defendant that they “were talking about drugs,” and again asked the defendant whether he would consent to a search, reminding him that he had previously consented. The defendant consented again, and the officer was able to complete a search, finding over 34,000 pills of Oxycodone.

The defendant was charged with drug offenses. He moved to suppress, arguing that the officer’s conduct exceeded the permissible bounds of a traffic stop, and that his own consent to search was tainted by the officer’s overreaching. The district court granted the motion, and the government appealed.

The Fourth Circuit affirmed. The court acknowledged that an officer may ask questions unrelated to the purpose of a traffic stop if the questions do not extend the duration of the stop, or if the questions extend the duration by only a minimal amount. However, it noted that in this case, at least ten minutes of the fifteen-minute traffic stop were devoted to a drug investigation. The court concluded that the officer had effectively abandoned “the purposes of the stop and embarked on a sustained course of investigation into the presence of drugs,” thereby exceeding the proper scope of the stop.

The court rejected the government’s contention that the officer had reasonable suspicion to conduct a drug investigation, which would, of course, have justified the officer’s conduct. The officer testified about several facts that he viewed as indicative of drug activity, such as that “the car was clean” and that “two shirts were hanging in the rear passenger compartment.” The Fourth Circuit found nothing troubling about these facts, nor about the other, almost equally benign facts listed by the officer.

Finally, the court rejected the government’s argument that even if the stop was unduly prolonged, the defendant’s consent to search was given after the stop ended, and so was not a product of the Fourth Amendment violation. The court affirmed the district court’s finding that the defendant’s consent was involuntary, suggesting that the detention continued even after the officer returned the defendant’s license and told him that he was free to go, and noting that the officer falsely insinuated that the defendant was bound by his earlier consent.

A few thoughts about this case. First, I suspect that the fact that the stop was recorded made a difference in the outcome of this case. The court was able to identify exactly how much time was spent on each stage of the stop because it had a time-stamped recording. Second, the federal courts are moving toward a rough consensus about traffic stops: a little extracurricular investigation is OK, but not much. We’ll see if our appellate courts eventually fall in line with that, or chart their own course. Finally, while most of the court’s opinion is quite persuasive, the court’s analysis of the voluntariness of the defendant’s consent isn’t as convincing. If the government elects to seek further review, I would expect it to focus on that issue. As always, stay tuned.

5 comments on “Fourth Circuit Adds to the Controversy over Traffic Stops

  1. I decided to become an attorney after a traffic stop where an officer took advantage of his power. It is always goods to see the courts protect the public’s legal rights, but I agree the time stamping played a role in it. The benefit of doubt is given to the officer more than than not. We have witnessed far too many officers who are not worth of it. Recently we learned of a Raleigh attorney’s wife being pulled over on Wrightsville Beach, he was also subsequently pulled over. I’m sure we all know the story. The officers received little punishment for their conduct. What is to keep them from doing it again and covering their tracks better from the lessons learned?

  2. That last comment by John Fitzpatrick is offensive and highly prejudicial. I hope your ability to read case law is better than your ability to comprehend current events because your comment about the troopers is erroneous. You wrote, “The officers received little punishment for their conduct.” Well sir, perhaps you need to conduct a google search and find the investigation released by the Highway Patrol. Only one officer was disciplined and that was for using foul language in a text message and DCI message switch. The trooper who conducted the arrest was exonerated and the lawyer was proved to be a liar by video surveillance. I guess I could then say all lawyers are liars like you claim all cops are bad, but that would be wrong. Luckily we have dedicated individuals like Jeff Welty who actually contribute good things to society by researching and teaching the law instead of proliferating liberal ideals that stereotype and blindly criticize law enforcement at every chance they get, yet would be the first to call 911 when they have an emergency.

  3. Unbelieveable. In my 35 yrs in law enforcement I have seen and heard some things. This case should be a sequel to the “Dumb and Dumber” movie. Not only was the officer incompetent, but so was the defendant. Of course, one cannot fault the defendant because, in his mind, he was obeying the officer’s commands, and for some reason, not invoking his rights. I know for a fact that some officers will “push the envelope” in order to make an arrest only to make themselves look like bufoons incourt. There is no way an officer, who takes pride in his job, should takee advantage of the situation and make himself look foolish before the court. As a training officer I used to preach to trainees that you cannot save the world with haste, but with patience. And, folks should know that they have the absolute right to say “No.”

  4. I too will offer my opion,it happens everyday in asheboro nc,officers stop vehicles with chrome rims and african americans drivers.The sad thing is attorneys do not attempt to help the defendants they always say ..well hes offering u ths plea

  5. This case absolutely burns me up. The officer did nothing even marginally relating to the subject of the traffic stop (following too closely) for 10 minutes. His “brief investigative detention” on these facts should, first, foremost and exclusively have been focused on the traffic violation-approaching the defendant’s car, informing the driver of the observed violation, running the plates, checking the license status and nothing else justifying a further detention, go on his way. Of course the law allows an officer to inquire about other matters, but I think that is to be done while in process of clearing up the traffic violation. The trooper never cited the defendant for that violation, instead issuing a warning ticket, leading me to believe that the “following too closely” was not egregious nor dangerous and that it was a clear pretext for the stop.
    This type procedure is taught in drug-interdiction schools-stopping cars for some completely subjective offense, almost always for “following too closely,” then launching into a drug investigation-completely ignoring (actually never meaning to deal with) the initial violation.
    Compare this to the “canine-sniff” cases requiring the stopping officer to deal with the traffic violation in a time period commensurate with the nature of the violation-if the drug dog can be brought to the car during this time, it may be utilized to indicate drugs and provide probable cause for search of the entire car. I cannot see our appellate courts tolerating a canine-sniff when the officer spent 10 minutes doing nothing about the subject of the stop.
    Then we have the officer’s assertion that a “clean car, a “hygiene bag,” (which I assume is called a shaving kit here in the South), and the hanging shirts were indicia of some criminal suspicion. Where in the hell did he learn that? What constitutes a clean car? Would my car, which is chock full of empty coffee cups, fast food restaurant bags, chicken bones and wrinkled clothes strewn everywhere, indicate non-drug activity? If this officer could not explain to ME how the clean car, the shaving kit and the hanging clothes were, as he claimed, indicia of drug activity, I wouldn’t put him on the stand-I’m not going to argue or even be associated with that nonsense before a court of law.
    This case smells like a dead fish, which, by the way, may also be in my car. Motivation for a stop is not relevant, but I think that assumes that the initial suspicion at least be the initial inquiry.

    BTW-I don’t want Jeff to be a cheerleader for us, but our advisor. I want an honest, direct opinion, regardless of whether I like the answer-and that’s what Jeff always gives me and every other prosecutor I’ve talked to. I have asked questions where his response has been-“that’s the stupidest question I’ve ever heard!” I’d rather hear that from him than from a judge. I find that he also always examines things from our perspective and suggests ideas and possible alternatives we should consider. I have never once surmised that his personal opinions color his advice in the least.
    As prosecutors, I believe that our job is to honestly advise law enforcement on matters, not to be their “cheerleaders.” I believe my duty extends not only to advise whether an action is legal, but also whether it is the “just” thing to do and also, despite the fact that it may be legal, will doing it cast all of us in a bad light.

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