Unsettled Questions About The Duration of Traffic Stops

In a recent post at the UNC School of Government’s criminal law blog, Jeff Welty discussed the uncertainties created by last year’s Supreme Court decision in Rodriguez v. United States. As Jeff pointed out, based on the Court’s 1977 holding in Pennsylvania v. Mimms, the well-established rule in traffic stops had been that, “An officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.” In Rodriguez, however:

The Court ruled that a traffic stop must end when “tasks tied to the traffic infraction are–or reasonably should have been–completed.” Thus, a traffic stop may not be extended, even briefly, to allow a drug dog to sniff the stopped vehicle absent reasonable suspicion of criminal activity justifying the continued detention.

This may sound simple. However, as a series of recent decisions by the NC Court of Appeals demonstrate, determining whether a specific traffic stop has been extended beyond the time needed to complete the tasks tied to the infraction, and, if so, deciding whether the extension was justified by a reasonable suspicion of criminal activity are actually rather difficult.

In May, in the Court had two occasions to apply the doctrine articulated in Rodriguez. The cases were similar in many respects. In both cases a driver was stopped for a minor speeding violation: 72 in a 60 mph zone in North Carolina v. Castillo, and 70 in a 60 mph zone in North Carolina v. Bullock. In both cases the officer making the stop asked the driver to exit his vehicle and sit in the police car while the officer made the necessary records checks.

In the first case, the officer issued a warning ticket, while in the second the officer told the driver he was going to do so.  After issuing the ticket (in the first case) and after stating that he was going to issue such a ticket (in the second), the officer asked for permission to search the vehicle.  In both cases, the driver agreed to the search. The search revealed illegal drugs, and the driver was charged with possession. In both cases, the driver asked the trial court to suppress the evidence of drug possession on the basis of Rodriguez. Finally, in both cases, the State of North Carolina argued that suspicious circumstances justified extending the stop long enough to conduct the search. Despite all these similarities, however, the outcomes of the two cases were very different.

In Castillo, the suspicious circumstances included the driver’s nervous demeanor, his incoherent answers to questions, and the fact that the arresting officer could smell marijuana on his person when he was sitting in the patrol car. Despite these circumstances, the trial court granted the motion to suppress on the basis of Rodriguez; the Court of Appeals, however, reversed. Judges Bryant, Geer, and McCullough issued a unanimous opinion. Judge McCullough held that the arresting officer “had reasonable suspicion to extend the traffic stop prior to entering his patrol vehicle with [the] defendant. Thus the traffic stop was not unlawfully extended.”

In Bullock, the suspicious circumstances included the driver’s nervous demeanor, his incoherent answers to questions, some discrepancies in the rental agreement for the car he was driving, and the fact that there were two cell phones in the car’s center console. In this case the trial court denied the motion to suppress, but, surprisingly, the same Court of Appeals panel reversed this decision as well. Writing for the majority, Judge Geer found: that the suspicious circumstances did not “rise to the same level” as in Castillo; that the officer had “prolonged the traffic stop beyond the time necessary to complete the stop’s mission”; and that the evidence obtained during the subsequent search should, therefore, have been suppressed. Judge Geer was joined by Judge Bryant. Writing in dissent, Judge McCullough insisted that,

An officer acts within … constitutional parameters … when he directs a motorist to accompany the officer to the police vehicle during the ticketing process,

and that,

Contradictory statements regarding one’s destination are a strong factor in providing reasonable suspicion.

Because the driver in this case had made such statements, said Judge McCullough, “The officer had reasonable suspicion to detain [him] and ask for consent to search.”

This month the Court of Appeals judges had a third occasion to consider the implications of Rodriguez, and the result was that, in North Carolina v. Reed, a different panel of judges arrived at another divided opinion. The facts in Reed were very similar to the facts in Castillo and Bullock. The arresting officer pulled the driver over for speeding, asked him to sit in the police car while records were being checked, and issued a warning ticket. After issuing the ticket, the officer searched the vehicle, found drugs, and charged the driver with possession. As in Castillo and Bullock, the driver moved to have the drug evidence suppressed on the basis of Rodriguez, and, as in those cases, the State of North Carolina argued that suspicious circumstances—including the driver’s nervous demeanor—justified the extension of the stop.

The outcome in Reed was similar to the outcome in Bullock. The trial court denied the motion to suppress, and the Court of Appeals reversed. Writing for the majority, Judge Hunter found that, “The trial court’s findings do not support its conclusion that [the officer] had reasonable suspicion of criminal activity to extend the traffic stop and conduct a search.” In support of this finding he noted that:

Defendant’s nervousness is an appropriate factor to consider, but it must be examined in light of the totality of the circumstances because many people do become nervous when [they are] stopped by an officer. [Quotation marks and citations omitted.]

And when he considered the other circumstances cited by the State—i.e., “Defendant’s possession of a female dog, dog food, coffee, energy drinks, trash, and air fresheners”—he found them to be “minimal” and “consistent with innocent travel.”

Writing in dissent, Judge Dillon disagreed. In his view, because the officer “knew that the presence of a female dog and dog food are sometimes used to distract a male canine during a dog sniff,” and because he also knew that air fresheners “are sometimes used to mask the odor of a controlled substance,” the additional circumstances cited by the State “supported the conclusion that [the officer] had reasonable suspicion … to justify an extension of the traffic stop.”

Obviously, this diversity of opinion over how to apply Rodriguez puts lower courts—and law enforcement officers—in a difficult position. Recognizing this, in the blog post referred to above, Prof. Welty ends his discussion with a couple of predictions and a suggestion:

Both Bullock and Reed were divided opinions, and further review seems likely. To the extent that those cases question whether an officer may, in the officer’s discretion, order an occupant out of a vehicle during a traffic stop, my guess is that further review will reaffirm Mimms. Only the Supreme Court can overrule Mimms, and it is hard to argue that Rodriguez did that….

The practice of ordering vehicle occupants into an officer’s vehicle without reasonable suspicion of anything more than a traffic infraction … strikes me as much more vulnerable…. The practice [is] not clearly supported by existing law, and if anything, Rodriguez calls it further into doubt. There may be limited circumstances in which such an order is appropriate, but I would continue to advise officers against doing so on a routine basis.