In 2015, the Supreme Court of the United States decided Rodriguez v. United States, 575 U.S. __, 135 S. Ct. 1609 (2015). Rodriguez held that it was improper for an officer to extend a traffic stop for several minutes in order to conduct a dog sniff of the stopped vehicle. More generally, the decision requires an officer to pursue the “mission” of a traffic stop diligently, without measurably extending the duration of the stop for investigative activity unrelated to the purpose of the stop.
Our court of appeals has issued several decisions under Rodriguez, including some in defendants’ favor. Everyone has been waiting for those cases to make their way to the state supreme court. Now one has, and it turns out that the supreme court’s understanding of Rodriguez differs considerably from the view adopted by at least some panels of the court of appeals.
The case in question is State v. Bullock, __ N.C. __, __ S.E.2d __, 2017 WL 5017435 (2017), and this post explores it further.
Facts. A Durham officer stopped a motorist on I-85 for speeding and other traffic violations. I-85 is a drug trafficking corridor. The driver was the sole occupant of the vehicle, which was a rental. However, the driver was not listed on the rental agreement. Two cell phones were visible in the car, and the driver’s hand shook when he provided his license to the officer. The driver claimed to have just missed the exit for his girlfriend’s residence, but he was several exits past where he said she lived.
The officer asked the driver to get out of the rental and sit in the officer’s patrol car. Before the driver entered the patrol car, the officer frisked him and found $372 in cash. The officer then ran the driver’s name through “various law enforcement databases,” a process that takes a few minutes to complete. In the interim, the officer continued to talk with the driver, who continued to make statements that were confusing, contradictory, or demonstrably false. For example, he claimed that he had just moved to North Carolina even though he had been issued a North Carolina driver’s license in 2000.
The officer asked the driver for consent to search the car and the driver agreed, but said that he did not want his bag and hoodies searched. The officer subsequently opened the vehicle’s trunk, removed the driver’s bag, and had a dog sniff it. The dog alerted and the officer searched the bag, finding heroin.
Procedural history. The defendant was charged with trafficking heroin and other crimes. He moved to suppress, arguing that the officer had unduly prolonged the stop in violation of Rodriguez. A superior court judge denied the motion, and the defendant pled guilty and appealed.
A divided court of appeals ruled for the defendant. The majority concluded that the officer “unlawfully prolonged the detention by causing defendant to be subjected to a frisk, sit in the officer’s patrol car, and answer questions while the officer searched law enforcement databases for reasons unrelated to the mission of the stop and for reasons exceeding the routine checks authorized by Rodriguez.” The dissenting judge viewed the frisk as justified by the driver’s consent, the database checks as permitted under Rodriguez, the questioning as permissibly taking place during the checks, and placing the driver in the patrol car as justified in light of the fact that the driver was not listed on the rental agreement.
Supreme court’s analysis. The supreme court found that some aspects of the officer’s conduct were not properly before it, and that the remaining aspects of the officer’s conduct complied with the Constitution. Therefore, it reversed the court of appeals. The opinion was unanimous. It’s worth discussing the court’s analysis of each step.
Ordering the driver out of the vehicle. Citing pre-Rodriguez precedent, the court stated that the officer “could and did lawfully ask defendant to exit the rental car.” The court further reasoned that ordering a driver out of his or her vehicle “improves an officer’s ability to observe the driver’s movement” and so enhances officer safety, which is part of the mission of a traffic stop under Rodriguez. Therefore, “any amount of time that the request to exit the rental car added to the stop was simply time spent pursuing the mission of the stop.”
Frisking the driver. The court stated that the officer “lawfully frisked [the driver] for weapons without unconstitutionally prolonging the stop, for two independent reasons.” First, “frisking defendant before placing him in [the] patrol car enhanced the officer’s safety.” Second, the court noted that Rodriguez states that officers may not depart from the mission of a stop in a way that “measurably extend[s] the duration of the stop.” The court reasoned that “[i]t follows that there are some inquiries that extend a stop’s duration but do not extend it measurably.” And “here, the frisk lasted eight or nine seconds,” which is short enough that it does not constitute a “measurable” extension of the stop.
I have some concerns about this part of the opinion. First, I think the opinion is likely to be misinterpreted. In a footnote, the court states that only the delay associated with the frisk, not the propriety of the frisk itself, is properly before the court. Yet the court says in the main text of the opinion that the officer “lawfully frisked” the driver. It is therefore easy to imagine the case being cited to justify frisks of motorists even though the court purported not to be addressing whether such frisks are permissible. Generally, “[t]o justify a patdown of the driver or a passenger during a traffic stop . . . the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323 (2009).
Second, the court discusses officer safety as if any precaution would categorically justify any extension of a stop, but Rodriguez does not go that far. The Bullock opinion states that “because officer safety stems from the mission of the traffic stop itself, time devoted to officer safety is time that is reasonably required to complete that mission.” But Rodriguez says only that “negligibly burdensome” measures may be undertaken in the interest of officer safety.
Third, the idea that an eight or nine second frisk is too brief to be measurable and so does not require any justification is awfully similar to the “de minimis” rule that the Supreme Court rejected in Rodriguez. Admittedly, the delay in Rodriguez was measured in minutes, not seconds. And perhaps there is some point beyond which delay is too minor to be calculable: it’s absurd to imagine courts analyzing whether an officer walked or jogged to a motorist’s car, or whether an officer could have typed a driver’s license number more quickly into the officer’s computer. But it isn’t self-evident that eight or nine seconds is too brief to count, especially in light of the fact that it is long enough to conduct an intrusive procedure like a frisk.
I’m not saying that the court was necessarily wrong about the frisk. I don’t think the frisk is an easy issue to analyze, in part because the record suggests that the officer asked for and received the defendant’s consent to conduct the frisk, which significantly undermines any claim that the frisk was unjustified or took too long. But I do worry that the brief discussion of the frisk in Bullock will be understood as a blanket endorsement of frisking motorists without reasonable suspicion, or will be read categorically to permit any delay that has even a slight impact on officer safety.
Moving the driver into the patrol car. As with the frisk, the court did not think that the issue of whether an officer may order a driver into a patrol car was properly before it. As to whether the move from the roadside to the patrol vehicle improperly extended the stop, the court concluded that it did not: “It takes a few minutes to run checks through [law enforcement] databases, and it takes no more time to run the checks when a defendant is in a patrol car than when a defendant is elsewhere.”
Running computer checks on the driver. The propriety of running the driver’s name through multiple databases is not directly addressed in the portion of the opinion that discusses the various steps taken by the officer during the stop. However, earlier in the opinion, when the court is summarizing Rodriguez, the court states that permissible safety precautions that may be taken during a stop “appear to include conducting criminal history checks, as Rodriguez favorably cited a Tenth Circuit case that allows officers to conduct those checks to protect officer safety.” This is significant, as some have read Rodriguez as allowing only checks for outstanding warrants and motor vehicle violations. See United States v. Evans, 786 F.3d 779 (9th Cir. 2015) (ruling that an officer improperly extended a stop to conduct an “ex-felon registration check,” which, unlike “vehicle records or warrants checks, was wholly unrelated” to the mission of the stop). It is clear that our state supreme court does not view Rodriguez in that way.
Asking questions of the driver while waiting for the computer checks to come back. Assuming that the checks themselves were permissible, the court concludes that it was also permissible for the officer to ask questions of the driver while waiting for the results of the checks, because doing so did not prolong the stop. That is, the fact that the checks were running enabled the officer to “talk with defendant at least up until the moment that all three database checks had been completed.”
Concluding thoughts. It is worth highlighting the limits of Bullock. The court did not address the propriety of the frisk or whether the officer had the authority to order the driver into the patrol car. It did not get into Rodriguez puzzles like whether one officer may investigate criminal activity while another addresses a traffic infraction. Still, the decision is a significant win for the State. The two most important aspects of the opinion may be the resurrected de minimis analysis and the court’s apparent determination that criminal record checks are a permissible component of a traffic stop.
Finally, I’ll note that the court vacated and remanded State v. Reed, __ N.C. App. __, 791 S.E.2d 486 (2016), for reconsideration in light of Bullock. The majority opinion in Reed characterized the case as “nearly identical” to Bullock, but I see some differences – including the fact that the frisk in Reed was not supported by consent – that may be pertinent when the court of appeals takes a second look at Reed.
As always, I am interested in others’ thoughts and perspectives, so please post a comment if you are moved to do so.