May an officer prolong a routine traffic stop for four and a half minutes to allow a drug dog to sniff the exterior of the vehicle–even if the officer lacks reasonable suspicion to believe that drugs are in the car? Yes she may. The court of appeals held this week in State v. Sellars, No. COA11-1315 (August 7, 2012), that such a delay is de minimis and does not violate a person’s Fourth Amendment rights.
Two police officers from the Winston-Salem Police Department stopped the defendant in Sellars as he was traveling on Interstate 40 after seeing him twice weave out of his lane. The officers, one of whom was a detective, were patrolling together with a drug dog in the back of their car. The detective determined immediately after stopping the defendant that he was not impaired. The detective asked the defendant for his driver’s license and noticed that the defendant’s hand was shaking when he handed the license to him. The defendant’s heart also was beating fast. The detective told the defendant he would not be cited for the traffic violation, and asked the defendant to accompany him to the police car. When the detective entered defendant’s information into his computer, he found an “‘alert’” posted by the Burlington Police Department indicating that the defendant was a “‘drug dealer’” and a “‘known felon.’” After seeing the alert, the detective decided to have the drug dog sniff the defendant’s vehicle.
The detective returned the defendant’s driver’s license and issued a warning ticket. While the defendant was still sitting in the police car, the detective asked the defendant whether he had drugs or weapons in his car. The defendant said he did not. The detective then asked for consent to conduct an “open-air drug dog sniff” of the vehicle. The defendant refused. The detective nevertheless directed the defendant to stand near the other officer while the dog sniffed the exterior of the defendant’s vehicle. Four minutes and thirty-seven seconds later, the dog alerted. The detective then searched the car and found cocaine.
The defendant was indicted on drug charges. He moved to suppress the evidence found in his car. The trial court suppressed the evidence on the basis that the police lacked reasonable suspicion to detain the defendant after issuing the warning ticket and returning the defendant’s license. The State appealed, arguing that (1) the officers had reasonable suspicion to extend the stop of defendant after he was issued the warning ticket and his driver’s license was returned; and (2) regardless of whether the officers had reasonable suspicion, any prolonged detention was de minimis and did not violate defendant’s Fourth Amendment rights. The court of appeals agreed with the State’s latter argument and reversed on that basis, declining to consider whether reasonable suspicion supported the defendant’s continued detention.
The court acknowledged seemingly contradictory statements in its earlier opinions about whether an extended detention, of any duration, of a defendant beyond the scope of the initial traffic stop need be supported by reasonable, articulable suspicion. Compare State v. Falana, 129 N.C. App. 813, 816 (1998) (holding that “[o]nce the original purpose of the stop has been addressed, there must be grounds which provide a reasonable and articulable suspicion to justify further delay”) and State v. Jackson, 199 N.C. App. 236, 240 (2009) (holding that officer lacked the reasonable, articulable suspicion that was required to extend the stop for the purpose of asking a handful of questions unrelated to the traffic stop) with State v. Brimmer, 187 N.C. App. 451, 455 (2007) (holding that prolonging a defendant’s detention for an additional minute and a half to allow a dog to sniff around the vehicle does not extend a traffic stop so as to require reasonable, articulable suspicion of criminal activity). The court characterized these opinions as evolving from two lines of cases: Falana—decided before the U.S. Supreme Court ruled in Illinois v Caballes, 543 U.S. 405 (2005), that a dog sniff of the exterior of a defendant’s vehicle is not a search subject to the Fourth Amendment; and Brimmer—decided after the U.S. Court of Appeals for the Eighth Circuit held in United States v. Alexander, 448 F.3d 1014 (8th Cir. 2006), that the artificial line marking the end of a traffic stop does not foreclose dog sniffs that occur within a short time following the completion of a traffic stop if they constitute only de minimis intrusions on the defendant’s Fourth Amendment rights. The court concluded that the de minimis rule of Brimmer applied, notwithstanding post-Brimmer jurisprudence to the contrary. Noting that Brimmer held a one-and-a-half minute delay to be de minimis and Alexander found a four-minute delay de minimis, the Sellars court concluded that the four minute and thirty-seven second delay in that case also was de minimis.
While Sellars addressed a delay associated with a drug dog sniff, its analysis almost certainly applies to allow a de minimis extension of a traffic stop for the purpose of questioning that is unrelated to the basis for the stop. Indeed, in holding that the Fourth Amendment does not require separate justification before an officer may inquire about matters unrelated to the basis for a lawful seizure, the U.S. Supreme Court characterized Caballes as instructive. See Muehler v. Mena, 544 U.S. 93, 101 (2005); see also Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”) Two of the cases cited by Sellars in the Falana progeny that it characterized as superseded by Brimmer–State v. Jackson, 199 N.C. App. 236 (2009) and State v. Myles, 188 N.C. App. (2008)–involved traffic stops that were held to have been unlawfully prolonged by questioning unrelated to the stop. And other courts have applied the de minimis doctrine in this context. See, e.g., United States v. Stepp, 680 F.3d 651, 662 (6th Cir. 2012) (explaining that a traffic stop is not “measurably” extended by extraneous questioning even when such questioning undeniably prolongs the stop to a minimal degree).
Sellars does not identify an outer time limit at which the delay for investigation unsupported by reasonable suspicion gains constitutional significance. Is a five-minute delay de minimis? How about a ten- or fifteen-minute delay? Cf. United States v. Peralez, 526 F.3d 1115, 1119-20 (8th Cir. 2008) (delay of approximately thirteen minutes caused by questioning unrelated to the stop unconstitutionally prolonged the detention). For its part, the U.S. Court of Appeals for the Fourth Circuit has rejected the notion that only the duration of the extended stop is relevant, adopting in its place an approach that examines whether the police diligently pursued the investigation of the justification for the stop. See United States v. Guijon-Ortiz, 660 F.3d 757, 766 (4th Cir. 2011). Under the Fourth Circuit’s formulation, the Fourth Amendment is violated by a search or seizure that occurs when an officer, without reasonable suspicion, abandons the prosecution of a traffic stop and “embark[s] on another sustained course of investigation.” See id. (internal citations omitted); see also United States v. Digiovanni, 650 F.3d 498, 511 (4th Cir. 2011), as amended (Aug. 2, 2011) (discussed in this earlier post).
Stay tuned to see how Sellars and the revived and restored Brimmer play out in our state’s appellate courts.