Paint By the Numbers in Traffic Stops

Commonwealth v. Clayborne, 2021 WL 4487288 (Ken. 2021)

The United States Supreme Court has held that officers may not extend or prolong traffic stops without reasonable, articulable suspicion to conduct further criminal investigation. (Rodriguez v. United States, 575 U.S. 348 (2015): A stop may “last no longer than is necessary to effectuate the initial purpose of the stop…Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” A traffic detention must last no longer than necessary to resolve the suspected traffic violation, either by warning, citation or hearing an explanation from the driver. The detention and investigation must be reasonably related to the initial reason for the stop, unless other factors support additional reasonable suspicion (United States v. Hill, 852 F.3d 377 (4^th Cir. 2017); United States v. Gil, 204 F.3d 1347 (11^th Cir.), cert. denied, 531 U.S. 951 (2000)). Any further detention must be supported by reasonable suspicion of more serious criminal activity.

Most courts rigidly apply the Rodriguez rule, and that’s what happened in this case. An officer stopped Ikia Clayborne after a computer check showed a record for a suspended license and a “verify for proof of insurance” associated with the vehicle’s owner. The officer found the driver had a suspended license, and that both the driver and passenger (Clayborne) had records of drug crimes. The officer then requested for a drug detector dog team to come to the scene.

The dog team arrived 10 minutes later, at which point the officer had not yet completed the traffic citation. When the dog team arrived, he quit writing the citation, exited his vehicle and briefed the drug dog detector handler on why he called for a dog. The officer then asked the driver and Clayborne to exit the vehicle and explained the dog sniff procedure to them as they stood by the patrol car. The dog gave a positive response near the passenger door and an officer found a bag of cocaine on the ground underneath the door.

Rigid application of the Rodriguez ruling leads to suppression, as it did in this case.

That’s what actually happened. Now consider what could have happened had the traffic stop unfolded with a slight variation. Here’s the hypothetical: The officer learns of the driver and passenger having records for drug crimes, calls for a dog team and writes a citation. The officer asks about finding a licensed driver or decides to impound the car (assuming that is permitted under the agency impound policy). The drug detector dog team arrives. The officer continues to write the citation or perform other permissible tasks and quickly briefs the dog handler on the reason the officer requested a detector dog. The dog handler speaks with the driver and passenger about the sniff, conducts the sniff and finds the cocaine.

In the first situation—what actually happened—the stop was extended by the officer abandoning writing the citation. Rigid application of the Rodriguez ruling leads to suppression, as it did in this case. In the second case—the hypothetical situation—it is very likely the cocaine would be admissible. Score one for the dog!

The following steps are permitted for every traffic stop made for a valid reason:

• Require the driver to produce a driver’s license and vehicle registration (United States v. Hollins, 685 F.3d 703 (8^th Cir. 2012)). If the registered owner is not in the car, the driver may be required to show a right to possess and drive the car (United States v. Zabalza, 346 F.3d 1255 (10^th Cir. 2003)).
• Require proof of insurance for the vehicle (United States v. Brigham, 343 F.3d 490 (5^th Cir. 2003): “Officer is authorized to require the driver of the vehicle to produce a valid driver’s license and documentation establishing the ownership of the vehicle and that required public liability insurance coverages are in effect on such vehicle” (rev’d on other grounds, 382 F.3d 500 (5^th Cir. 2004)).
• Check the driver for a valid license and for warrants (United States v. Barragan, 379 F.3d 524 (8^th Cir. 2004); United States v. Holt, 264 F.3d 1215 (10^th Cir. 2001)).
• Request a computer check of the driver’s criminal history. The check should be requested at the initial stage of the stop, at the same time the driver’s license and registration checks are requested, and may not unreasonably delay the stop (United States v. Estrada, 459 F.3d 627 (5^th Cir. 2006); United States v. Salazar, 454 F.3d 843 (8^th Cir. 2006); United States v. Purcell, 236 F.3d 1274 (11^th Cir. 2001)).
• Inspect the VIN (vehicle identification number) in the least intrusive manner and compare it to the VIN shown on registration documents or computer records (New York v. Class, 475 U.S. 106 (1986)). An officer may require the driver to move an item blocking the view of the VIN (United States v. Caro, 248 F.3d 1240 (10^th Cir. 2001)); if the VIN on the dashboard is obscured or unreadable, the officer may open the door to check the VIN (Morgan v. State, 906 S.W.2d 620 (Tex. App. 1995), cert. denied, 519 U.S. 865 (1996)).
• Test vehicle compliance against specific state laws: An officer who opened the door of a rental car to test window tint and check whether the tint violated Florida law did not violate the Fourth Amendment (United States v. Holley, 709 F. Appx. 602 (11^th Cir. 2017)).
• Visually inspect the “plain view” interior of the car (Colorado v. Bannister, 449 U.S. 1 (1980)).
• Ask about travel plans, particularly if the stop is for suspicion of impairment and the driver’s drowsiness may be an explanation for the driving pattern, and ask questions, whether or not related to the purpose of the stop, so long as they do not prolong the stop (State v. Jimenez, 420 P.3d 464 (Kan. 2018)). Most courts allow routine questions about travel plans (United States v. Martin, 422 F.3d 597 (7^th Cir. 2005)): An officer may ask questions unrelated to the initial purpose of the stop, provided the questions do not unreasonably extend the amount of time the subject is detained.
• Ask about the relationship of the driver to any passengers (United States v. Rivera, 867 F.2d 1261 (10^th Cir. 1989)).
• Ask the driver to sit in the patrol car for questioning and for issuance of a citation (United States v. Ramos, 42 F.3d 1160 (8^th Cir. 1994), cert. denied, 514 U.S. 1134 (1995)). Though lawful, bringing the driver back to the car may not be tactically sound.

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