North Carolina’s appellate courts have recently issued two important opinions on the use of drug dogs, and the United States Supreme Court has granted certiorari in another drug dog case. This post summarizes these recent developments. Continue reading
Tag Archives: traffic stops
Yesterday, the court of appeals decided a very important traffic stop case. Its ruling strictly limits officers to pursuing the original justification for a traffic stop, and prohibits officers from extending the stop even briefly for most other investigative activity. This is an area of the law that has been muddled in North Carolina, and this case – whether the ruling stands or is modified by the state supreme court – may help bring clarity to the issue. I’ll revise my paper on traffic stops to reflect the decision.
The case is State v. Cottrell. It began when a Winston-Salem officer stopped the defendant for driving at 11:37 p.m. with his headlights off. The officer had also heard loud music coming from either the defendant’s car or another that was nearby. The officer asked the defendant for his license and registration, and the defendant provided them. The officer didn’t notice any signs that the defendant was impaired, extremely nervous, or otherwise suspicious. The officer ran a computer check and determined that the defendant’s license and registration were valid, but that he had a history of “drug charges and various felonies.”
The officer then returned to the defendant’s car. He did not return the defendant’s license and registration. He reminded the defendant to keep his music turned down. During the conversation, the officer smelled a strong fragrance, like incense, that he believed was a “cover scent” used to mask the smell of marijuana. He asked the defendant about it, and the defendant produced a small bottle of what he said was body oil.
The officer asked the defendant for consent to search his car. At first the defendant said no, but when the officer threatened to call a drug dog to the scene, the defendant then consented to the search. Four minutes had elapsed since the stop began. The officer found a gun and drugs in the car.
The defendant was charged with several offenses. He moved to suppress, arguing that the officer unduly prolonged the stop without reasonable suspicion. A superior court judge denied the motion, and the defendant pled guilty and appealed.
The court of appeals reversed, in a decision by Judge Geer, joined by Judges Stephens and Ervin. The court quoted State v. Jackson, 199 N.C. App. 236 (2009), for the proposition that “[o]nce the original purpose of the stop has been addressed, in order to justify further delay, there must be grounds which provide the detaining officer with additional reasonable and articulable suspicion or the encounter must have become consensual.” Applying that principle to this case, the court assumed that the officer stopped the defendant both for the lack of headlights and the loud music. The court determined that “that once [the officer] told defendant to keep his music down, the officer had completely addressed the original purpose for the stop. Defendant had turned on his headlights, he had been warned about his music, his license and registration were valid, and he had no outstanding warrants.”
Further, the court ruled, the officer did not have reasonable suspicion to justify continued detention of the defendant. It held that “a strong incense-like fragrance . . . and a known felony and drug history are not, without more, sufficient to support a finding of reasonable suspicion.” Thus, the officer should have returned the defendant’s license and registration and allowed him to depart if he was unwilling to engage in a consensual encounter.
Finally, the court considered the State’s argument that the brief extension of the stop to bring a drug dog to the scene or to ask for consent to search was justified under the de minimis analysis of State v. Brimmer, 187 N.C. App. 451 (2007) (“[I]f the detention is prolonged for only a very short period of time, the intrusion is considered de minimis. As a result, even if the traffic stop has been effectively completed, the sniff is not considered to have prolonged the detention beyond the time reasonably necessary for the stop.”). The court rejected the argument, stating: “We do not believe that the de minimis analysis applied in Brimmer and [State v. Sellars, __ N.C. App. __, 730 S.E.2d 208 (2012)] should be extended to situations when, as here, a drug dog was not already on the scene.” The court ruled that because the officer was not entitled to prolong the stop to summon a drug dog, the officer procured the defendant’s consent to search by threatening something unlawful.
In the alternative, the court observed that the evidence presented at the suppression hearing suggested that getting a drug dog to the scene would have required an extension of the stop by between seven and twelve minutes. This, it stated, would not be de minimis in any event. The court therefore reversed the suppression ruling and remanded the case.
I would be surprised if the State didn’t seek further review of this case. There’s considerable tension between the court’s analysis and the analysis in Brimmer and Sellars. Federal case law also tends to allow officers greater leeway under the de minimis rationale. On the other hand, we seem to be at a moment in history when officers’ conduct during traffic stops is receiving more scrutiny than ever before. Cottrell may reflect that increased sensitivity to the possibility of overreaching by officers.
I realize that the last update was only a few months ago, but I have updated my traffic stops paper again. It now includes a discussion of the United States Supreme Court’s decision in Navarette v. California, __ U.S. __, 134 S.Ct. 1683 (2014) (holding that a motorist’s anonymous 911 call reporting that a particular vehicle had run her off the road provided reasonable suspicion to stop the vehicle for DWI). Of course, I also blogged about that case here. The complete paper is available here. As always, it is a free PDF.
Law enforcement officers may stop a vehicle when they have reasonable suspicion to believe that the driver has violated a traffic law. See State v. Styles, 362 N.C. 412, 415, 665 S.E.2d 438, 440 (2008). This rule applies regardless of whether the offense is a felony, misdemeanor or infraction, and regardless of whether the officer has an ulterior motive for making the stop. See Whren v. United States, 517 U.S. 806 (1996).
The expansive scope of this authority is well-recognized. Some have argued that the “heavy and minute” regulation of vehicles renders “total compliance with traffic and safety rules nearly impossible.” Whren, 517 U.S. at 810 (citing petitioner’s argument to this effect). Thus, they say, “a police officer will almost invariably be able to catch any given motorist in a technical violation.” Id.
A quick review of criminal case law provides some support for that notion. Law enforcement officers frequently substantiate more serious criminal conduct through citizen encounters that begin with a simple traffic stop. See, e.g., State v. Heien, 366 N.C. 271 (2012) (defendant stopped for ostensible brake light violation and arrested for drug trafficking); State v. Dickenson, __ N.C. App. ___ (April 15, 2014) (unpublished) (defendant stopped for failure to wear seatbelt and arrested for drug trafficking); State v. Franklin, __ N.C. App. __, 736 S.E.2d 218 (2012) (defendant stopped for seatbelt violation and arrested for drug crimes); State v. Townes, ___ N.C. App. ___, 734 S.E.2d 139 (November 6, 2012) (unpublished) (defendant stopped based on DMV insurance stop and arrested for carrying a concealed weapon and felony drug crime); State v. Osterhoudt, ___ N.C. App. ___; 731 S.E.2d 454, 460 (2012) (defendant stopped after officer observed him cross double yellow line while making right turn and arrested for DWI).
My top three little-known and oft-ignored traffic rules are below.
1. Stopping behind the white line. When a stop sign or traffic signal requires a vehicle to come to a complete stop at an intersection or some other place in the road, the vehicle must stop at the appropriately marked stop line, if there is one. See G.S. 20-158(b)(5); (c)(5). A driver who stops his or her vehicle before entering an intersection or proceeding past the sign or signal—but beyond a marked stop line—has committed a traffic violation for which he or she may be stopped. I always stop before the sign or signal, but I seldom focus on whether my front tires are over the line, unless there is a marked crosswalk. I’m sure I’m not alone.
2. The two-second rule. G.S. 20-152 prohibits the driver of a motor vehicle from following another vehicle more closely than is reasonable and prudent. The State Highway Patrol recommends that motorists keep at least one car length interval per 10 miles per hour of speed. So, if the car in front of you is traveling 60 miles per hour, you should remain six car lengths behind it. The state DMV handbook advises drivers to follow the “two-second rule,” which requires drivers to allow two seconds between the time the vehicle ahead of you passes a given point and the time your vehicle reaches the same point. I’m going to test this one out on I-40 on my way home. If I don’t, I’m subject to being stopped for following too closely in violation of G.S. 20-152. In United States v. Mubdi, 691 F.3d 334, 337 (4th Cir. 2012), cert. granted, judgment vacated on other grounds, 133 S. Ct. 2851, 186 L. Ed. 2d 902 (U.S. 2013), the NC Highway Patrol officer who stopped the defendant explained that he relied on the two-second and car-length rules in determining whether a driver had violated G.S. 20-152.
3. Signaling before changing lanes. G.S. 20-154 requires drivers on streets, highways and public vehicular areas to signal before starting stopping or turning from a direct line if another vehicle may be affected. Changing lanes is a turn requiring a signal under this provision. See Sass v. Thomas, 90 N.C. App. 719 (1988). An officer may not make an investigatory stop of a vehicle for failing to use a turn signal unless a reasonable officer would have believed that the defendant’s failure to use the turn signal might have affected the operation of another vehicle. See State v. Ivey, 360 N.C. 562 (2006) (finding that no violation of G.S. 20-154(a) occurred when a defendant failed to use his turn signal before making a right hand turn at an intersection, which was the only legal movement he could make). Our state appellate courts have concluded that a defendant’s failure to signal before changing lanes when driving immediately in front of another vehicle may affect the operation of the trailing vehicle, see State v. Styles, 362 N.C. 412 (2008), as may turning right in medium traffic while travelling about 100 feet in front of another car, see State v. McRae, 203 N.C. App. 310 (2010). My experience suggests that many, many people do not know about, or possibly know, but do not care to comply with, this rule.
Have a favorite obscure traffic rule of your own for which a motorist might be stopped? Share it using the comment feature below.
The Supreme Court just decided a case that significantly changes North Carolina law regarding whether a traffic stop can be made based on an anonymous 911 call alleging bad driving. The case is Navarette v. California, 572 U.S. __ (2014). The full opinion is here. This post summarizes the ruling and considers its implications for North Carolina.
Facts. A California woman called 911 and reported that a silver Ford pickup had run her off the road. She gave the vehicle’s plate number and stated that the vehicle was traveling south on a particular highway. Shortly thereafter, a highway patrol officer located the truck on the named highway and pulled it over. As the officer approached the truck, he smelled marijuana. He searched the truck, found 30 pounds of marijuana in the bed, and arrested the truck’s occupants.
Lower court proceedings. The occupants were charged with drug offenses. They moved to suppress the marijuana, contending that the initial stop was not supported by reasonable suspicion. It’s not completely clear whether the 911 caller gave her name, so the trial court treated the report as an anonymous tip, but ruled that it was reliable enough to provide reasonable suspicion. The defendants pled guilty and appealed the suppression ruling. California’s appellate courts affirmed. The Supreme Court agreed to review the case.
Majority opinion. The Court affirmed, dividing 5-4. Justice Thomas wrote the majority opinion. He stated that anonymous tips alone seldom provide reasonable suspicion, but that “under appropriate circumstances,” they may do so. Why did this tip pass muster? First, the Court concluded that the tip was reliable, for the following reasons:
- The caller provided her basis of knowledge, i.e., explained how she came to know about the dangerous driving: she “necessarily claimed eyewitness knowledge” when she stated that the truck ran her off the road.
- The call was contemporaneous with the dangerous driving, which made the report “especially reliable” and unlikely to be fabricated.
- The report came via the 911 system, which “has some features [like recording and caller ID] that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.”
Having concluded that the tip was likely accurate, the Court then ruled that it provided reasonable suspicion that the driver of the pickup was impaired. Justice Thomas wrote that running another vehicle off the road “suggests lanepositioning problems, decreased vigilance, impaired judgment, or some combination of those recognized drunk driving cues.”
Dissent. Justice Scalia wrote the dissent, characterizing the majority opinion as a “freedom-destroying cocktail” of errors. He first argued that the tip was not reliable, and could have been fabricated or embellished, given that it was anonymous and that the caller may well have been unaware of the call-tracing features of the 911 system. Then he contended that even if the tip was reliable, it couldn’t support reasonable suspicion because there are many explanations other than impaired driving for one vehicle running another off the road: “The truck might have swerved to avoid an animal, a pothole, or a jaywalking pedestrian.” Further, he notes that the officers “followed the truck for five minutes” before stopping it and saw no signs of impairment. In his view, this “affirmatively undermined” whatever reasonable suspicion the tip offered.
Comparison to prior law. Our appellate courts have been quite skeptical of anonymous tips. For example, in the almost indistinguishable case of State v. Blankenship, __ N.C. App. __, 748 S.E.2d 616 (2013), a taxi driver placed an anonymous call to 911, reporting that a specific red Ford Mustang was “driving erratically [and] running over traffic cones.” The court of appeals found no reasonable suspicion for the subsequent stop of the Mustang, because the tip was anonymous, and there was no corroboration beyond the fact that the Mustang was, in fact, traveling in the direction reported by the caller. See also State v. Peele, 196 N.C. App. 668 (2009) (anonymous tip concerning possible impaired driving did not provide reasonable suspicion, even with officer’s observation of one incident of weaving). These rulings have been heavily influenced by Florida v. J.L., 529 U.S. 266 (2000) (ruling that an anonymous tip stating that a young black man in a plaid shirt at a specific bus stop was carrying a gun did not provide reasonable suspicion for a stop and frisk as it contained no predictive information). Navarette does not overrule J.L., but it represents a break from the approach our courts have taken.
Reactions and comments. It seems to me that the majority has the upper hand as to the probable accuracy of the tip. Sure, it’s possible that a 911 call like the one in this case could be a fabrication by a malevolent caller, designed to inconvenience an innocent motorist by having them stopped by police. But it’s likely that this sort of report will be made in good faith. As to whether such a tip provides reasonable suspicion of impaired driving, however, the dissent makes a powerful case, especially given the five-minute observation of faultless driving.
Whether or not the decision is right, the majority opinion leaves quite a bit to be desired, because it provides so little guidance in sifting sufficiently reliable tips from inadequate ones. How indispensable is the contemporaneity of the report? How contemporaneous is contemporaneous? How significant is the fact that the call was placed to 911? What if it was placed to a non-emergency number that also was subject to caller ID? What if the call concerned a completed offense instead of an ongoing one? (The Court expressly dodges the last question in footnote 2.) Rather than clarifying the law, the Court’s opinion muddies it, making it more difficult for officers and courts to apply.
Professor Orin Kerr has a more sanguine view of the opinion here at the Volokh Conspiracy.
I’ve just completed a revision of my paper on the law of traffic stops. It covers both when an officer may make a stop and what an officer may do in the course of the stop. It’s written for judges, lawyers, and officers, and is available here for free. As always, I welcome feedback on any aspect of the paper.
Law enforcement use of automated license plate readers has become very widespread. It raises several interesting legal and practical issues which I briefly explore below.
What are they? License plate readers are electronic devices – basically, enhanced cameras – that scan each passing car, detect the license plate, read it, and record it. The devices may also photograph the plate, such as when the plate matches a “hot list” of stolen plates. The readers may be stationary, mounted on a light pole or an overpass, or they may be mobile, mounted on a police vehicle. When mounted on a vehicle, they may send an alert to the officer driving a vehicle when they detect a noteworthy plate.
Widespread use. According to public records obtained by the ACLU, at least the following North Carolina law enforcement agencies are using license plate readers:
- Charlotte-Mecklenburg Police Department
- High Point Police Department
- Jacksonville Police Department
- Raleigh Police Department
- Washington Police Department
- Wilmington Police Department
- Wilson County Sheriff’s Office
- Wrightsville Beach Police Department
Other agencies such as the Fayetteville Police Department and the Greenville Police Department, have experimented with or are exploring the use of plate readers.
I don’t know how the ACLU identified agencies to query, or how it decided which responses to post online, but a substantial majority of the agencies whose responses it posted acknowledged using plate readers. Survey data suggests that a majority of all law enforcement agencies already use the readers, and I assume that even more agencies will do so in the future as the technology becomes better known and less expensive. In a few years, every police vehicle may be topped with a plate reader.
Plate readers and traffic stops. Plate readers aren’t perfect, as illustrated by Green v. City and County of San Francisco, 2011 4434801 (N.D. Cal. Sept. 23, 2011) (unpublished), a civil suit arising out of a plate reader’s mistaken determination that plate 5SOW-3-50 matched stolen plate 5SOW-7-50, and the resultant “high risk felony stop” at gunpoint of an innocent motorist. In light of the devices’ fallibility, when an officer receives an alert from a plate reader mounted on her police vehicle, may she rely on the alert to stop the vehicle identified by the reader?
At least in many circumstances, the answer may be yes. See Hernandez-Lopez v. State, 319 Ga. App. 254 (Ga. Ct. App. 2013) (reasonable suspicion supported a vehicle stop where a plate reader gave an officer a “‘wanted person’ alert” after detecting a license plate associated with a person who had previously failed to appear in court; the officer noted that the wanted person was a male as was the driver of the vehicle); People v. Davila, 901 N.Y.S.2d 787 (N.Y. Sup. Ct. 2010) (a plate reader alerted to a vehicle with suspended registration; this provided reasonable suspicion to support a traffic stop). But cf. Rodriguez v. State, __ S.E.2d __, 2013 WL 1767660 (Ga. Ct. App. 2013) (a driver was issued traffic citations and failed to appear in court to answer them, so an arrest warrant was issued for the driver; later, a cruiser-mounted license plate reader spotted the license plate associated with the previous citations; officers stopped the vehicle based on the match; although the person driving at that point was not the subject of the arrest warrant, officers searched the car based on consent and found marijuana; a majority of the appellate court found that the defendant waived her right to contest the validity of the stop, while a dissenting judge would have ruled that, absent evidence that the vehicle was registered to the fugitive [information that the plate reader system did not supply] or that the driver shared physical characteristics with the fugitive [which she did not, as the fugitive was a male] there was not a sufficient basis for the stop).
Privacy concerns. The ACLU just released a report on readers, entitled You Are Being Tracked. The report acknowledges the crime-solving potential of the devices, but argues that the proliferation of the readers and the long retention of the data that they collect poses a privacy threat:
The implementation of automatic license plate readers poses serious privacy and other civil liberties threats. More and more cameras, longer retention periods, and widespread sharing allow law enforcement agents to assemble the individual puzzle pieces of where we have been over time into a single, high-resolution image of our lives. The knowledge that one is subject to constant monitoring can chill the exercise of our cherished rights to free speech and association. Databases of license plate reader information create opportunities for institutional abuse, such as using them to identify protest attendees merely because these individuals have exercised their First Amendment-protected right to free speech. If not properly secured, license plate reader databases open the door to abusive tracking, enabling anyone with access to pry into the lives of his boss, his ex-wife, or his romantic, political, or workplace rivals.
Law enforcement generally disagrees, noting the absence of actual examples of abuse, in contrast to the plentiful real examples of plate readers solving crimes like vehicle theft (N&O story) and murder (Jalopnik story). One of the key issues in this area is how long the license plate data should be retained. Agencies vary in this regard, with retention periods ranging from 48 hours to indefinitely.
Fourth Amendment issues. Whether the use of plate readers is a privacy problem or not, at least under conventional Fourth Amendment doctrine, using a plate reader isn’t a “search” because the reader is just looking at something in public view. See United States v. Wilcox, 2011 WL 679416 (11th Cir. Feb. 28, 2011) (unpublished) (defendant argued that “the use of the tag reader technology amounted to unconstitutional surveillance that violated his reasonable expectation of privacy,” but the court disagreed, finding no expectation of privacy in the defendant’s license plate as it was plainly visible on the public roads). Cf. State v. Chambers, 2010 WL 1287068 (N.C. Ct. App. April 6, 2010) (unpublished) (“Defendant’s license tag was displayed, as required by North Carolina law, on the back of his vehicle for all of society to view. Therefore, defendant did not have a subjective or objective reasonable expectation of privacy in his license tag. As such, the officer’s actions did not constitute a search under the Fourth Amendment.”).
However, when data gathered from multiple plate readers is combined, and is retained over time, one could argue that the resulting database approaches continuous surveillance, akin to constant tracking of every vehicle. This may eventually implicate the so-called mosaic theory of the Fourth Amendment. The Supreme Court’s decision in United States v. Jones, __ U.S. __, 132 S.Ct. 945 (2012), the GPS tracking case I discussed here, suggests a receptiveness to that idea. That is, a majority of the Court appears sympathetic to the notion that long-term monitoring of individuals’ movements without a search warrant may be forbidden by the Fourth Amendment. Plate readers likely are not yet ubiquitous enough to raise a serious Fourth Amendment question about their use, but as their presence grows, that day may come.
I’ve had several questions lately about driving slowly, so I took some time this weekend to add a section to my paper on traffic stops on the subject. The new section appears below as today’s blog post, and the complete updated paper is available here.
Driving substantially under the posted speed limit is not itself unlawful. In fact, it is sometimes required by G.S. 20-141(a), which states that “[n]o person shall drive a vehicle on a highway or in a public vehicular area at a speed greater than is reasonable and prudent under the conditions then existing.” On the other hand, in some circumstances, driving slowly may constitute obstruction of traffic under G.S. 20-141(h) (“No person shall operate a motor vehicle on the highway at such a slow speed as to impede the normal and reasonable movement of traffic.”). Furthermore, the fact that a driver is proceeding unusually slowly may contribute to reasonable suspicion that the driver is impaired. See, e.g., State v. Bonds, 139 N.C. App. 627 (2000) (driver’s blank look, slow speed, and the fact that he had his window down in cold weather provided reasonable suspicion; opinion quotes NHTSA regarding the connection between slow speeds, blank looks, and DWI); State v. Aubin, 100 N.C. App. 628 (1990) (fact that defendant slowed to 45 mph on I-95 and weaved within his lane supported reasonable suspicion of DWI); State v. Jones, 96 N.C. App. 389 (1989) (although the defendant did not commit a traffic infraction, “his driving 20 miles per hour below the speed limit and weaving within his lane were actions sufficient to raise a suspicion of an impaired driver in a reasonable and experienced [officer’s] mind”).
Whether slow speed alone is sufficient to provide reasonable suspicion of impairment is not completely settled in North Carolina. The state supreme court seemed to suggest that it might be in State v. Styles, 362 N.C. 412 (2008) (“For instance, law enforcement may observe certain facts that would, in the totality of the circumstances, lead a reasonable officer to believe a driver is impaired, such as weaving within the lane of travel or driving significantly slower than the speed limit.”), but the court of appeals stated that it is not in an unpublished decision, State v. Brown, 2010 WL 3860440 (N.C. Ct. App. Oct. 5, 2010) (unpublished) (stating that traveling 10 m.p.h. below the speed limit is not alone enough to create reasonable suspicion, but finding reasonable suspicion based on speed, weaving, and the late hour). The weight of authority in other states is that it is not. See, e.g., State v. Bacher, 867 N.E.2d 864 (Ohio Ct. App. 1 Dist. 2007) (holding that “slow travel alone [in that case, 23 m.p.h. below the speed limit on the highway] does not create a reasonable suspicion,” and collecting cases from across the country).
It is also unclear just how slowly a driver must be travelling in order to raise suspicions. Of course, driving a few miles per hour under the posted limit is not suspicious. State v. Canty, __ N.C. App. __, 736 S.E.2d 532 (2012) (fact that vehicle slowed to 59/65 upon seeing officers did not provide reasonable suspicion). Ten miles per hour under the limit, however, may be enough to contribute to suspicion. State v. Brown, supra (finding reasonable suspicion where defendant was driving 10 m.p.h. under the speed limit and weaving within lane); State v. Bradshaw, 2009 WL 2369281 (N.C. Ct. App. Aug. 4, 2009) (unpublished) (late hour, driving 10 m.p.h. below the limit, and abrupt turns provided reasonable suspicion). Certainly, the more sustained and the more pronounced the slow driving, the greater the suspicion.
I’ve updated my paper on traffic stops, which a fair number of people have said they found useful. It covers reasonable suspicion, the scope of a stop, termination of a stop, and much more. It’s not too long, it’s free, and it’s available here.
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.