Current Legal Issues in Traffic and Investigatory Stops

© 2009 KR W allentine all rights reserved. No reproduction without written license.

Current Legal Issues inTraffic and Investigatory Stops

2009 Justice Court Spring ConferenceKen Wallentine

[email protected]

Lawful reasons for stops

! Reasonable suspicion of a crime or traffic violation

An investigative detention must be based on reasonable suspicion of criminal activity.United States v. Cortez, 449 U.S. 411 (1981). The first question is whether there waseven a seizure by the officer. If so, the second question is whether the seizure wassupported by adequate reasonable suspicion. An officer may stop a person when theofficer has reasonable suspicion to believe that the person has committed or iscommitting or is attempting to commit a crime. United States v. Jones, 432 F.3d 34 (1stCir. 2005). Courts have attempted to define reasonable suspicion on many occasions;however, no court has been able to provide a black-letter, one-size-fits-all definition ofreasonable suspicion. “Articulating precisely what ‘reasonable suspicion’ means is notpossible. It is a commonsense, nontechnical conception that deals with the factual andpractical considerations of everyday life on which reasonable and prudent men, notlegal technicians, act.” Illinois v. Gates, 462 U.S. 213 (1983). Reasonable suspicion issubstantially less than probable cause and considerably less than proof of wrongdoingby preponderance of evidence. Immigration & Naturalization Service v. Delgado, 466U.S. 210 (1984). Reasonable suspicion is always more than a simple “hunch” or “meresuspicion.” United States v. Williams, 876 F.2d 1521 (11th Cir. 1989). Reasonablesuspicion must be particular; that is, it must be directed at a specific person in order todetain that person. Ybarra v. Illinois, 444 U.S. 85 (1979).

! What creates reasonable suspicion?

Reasonable suspicion usually arises from a number of related factors. Even if each factappears to have an innocent and legitimate explanation, courts look at the totality of thecircumstances, including the officer’s training and experience. United States v.Sokolow, 490 U.S. 1 (1989); Oliver v. Woods, 209 F.3d 1179 (10th Cir. 2000). The factthat an event may have an innocent explanation does not necessarily defeat aconclusion of reasonable suspicion. Cibula v. Driver and Motor Vehicle ServicesBranch, 123 P.3d 382 (Or. App. 2005), cert. denied, 132 P.3d 28 (Or. 2006). Factorsthat commonly lead to reasonable suspicion include:

• Time of day. Obviously, a person loitering outside a business late at nightwhen the business is closed is more suspicious than a person hanging around

mailto:[email protected]


the front door when the business is open or is about to open. Bennett v. City ofEastpointe, 410 F.3d 810 (6th Cir. 2005). Courts are generally more likely to findreasonable suspicion in late-night and early-morning stops. Being in ahigh-crime area late at night, without other indicators of criminal activity, may notbe enough for a detention. Brown v. Texas, 443 U.S. 47 (1979).

• Dress. A person in a black ninja suit will surely generate suspicion at any timeof day (except, perhaps, while near a martial arts studio). People v. Jackson,742 P.2d 929 (Colo. App. 1987). Almost as suspicious is a person wearingunusually heavy or bulky clothing in warm weather. United States v. Williams,714 F.2d 777 (8th Cir. 1983).

• Suspicious conduct. The Terry decision was based on a case where a veterandetective saw suspicious behavior, believed that a crime was about to occur,and detained and frisked a suspect. An officer may, indeed must, applyexperience and training to determine whether conduct is “suspicious.” UnitedStates v. Lujan, 188 F.3d 520 (10th Cir. 1999).

• Crimes in the area. The crime history of an area, particularly recently reportedcriminal activity, is an important factor in assessing reasonable suspicion. Statev. Griffin, 61 P.3d 112 (Kan. App. 2003). There may also be correlation betweenthe type of crime (auto burglaries), the suspect (a person walking alone withtools in his back pocket), and the conduct (walking through the aisles of aparking lot) to further add to the reasonable suspicion. Mere presence in ahigh-crime area is not sufficient suspicion for a detention. Illinois v. Wardlow,528 U.S. 119 (2000).

• Location. A person walking in a Wal-Mart parking lot will be less suspiciousthan a person walking through a manufacturing business parking lot, particularlyif it is not a meal or break time at the manufacturing plant. If the area is fencedand the property owner has posted trespass warnings, the presence of a personin the area may be a more significant factor. Griffin v. Runyon, 2006 WL1344818 (M.D. Ga. 2006) (climbing residential yard fence a factor in reasonablesuspicion calculation); State v. Little, 806 P.2d 749 (Wash. 1991) (breachingposted trespass warnings contributes to reasonable suspicion).

• Known criminal history. State v. Thirty Thousand Six Hundred Sixty Dollars, 136S.W.3d 392 (Tex. App. 2004). Any reasonable officer will be very interested inthe activity of a person previously convicted of burglary when the officer spotsthe convicted burglar in a neighborhood other than the burglar’s. Similarly, aregistered sex of fender might arouse particular suspicions at a park or schoolfunction. Knowledge of a criminal history by itself usually will not justify adetention. United States v. Johnson, 427 F.3d 1053 (7th Cir. 2005).

• Tips. Information that a suspect is about to commit a crime, when sufficientlydetailed and reliable, can offer sufficient reasonable suspicion to detain. The


more detailed, the more recent, and the more reliable the source, the strongerthe reasonable suspicion. Commonwealth v. Kelly, 180 S.W.3d 474 (Ky. 2005).

• Nervousness. Considered by itself, nervous behavior at the sight of lawenforcement officers is never enough to create reasonable suspicion to detain.Many people who are violating no law become nervous around law enforcementofficers. Even so, an officer should not discount an averted gaze, changeddirection, lack of eye contact, or other nervous behavior. Nervousness is of“limited significance” in the reasonable suspicion calculation. United States v.Wood, 106 F.3d 942 (10th Cir. 1997). Refusal to voluntarily cooperate withofficers also cannot establish reasonable suspicion.

• Unprovoked flight upon seeing police. Illinois v. Wardlow, 528 U.S. 119 (2000);Whitfield v. Commonwealth, 576 S.E.2d 463 (Va. 2003) (flight when illuminatedby police car spotlight); Wilson v. United States, 802 A.2d 367 (D.C. 2002)(suspect twice walking rapidly away from different sets of officers withinmoments held to justify stop). As repeatedly cited by the United States SupremeCourt, “The wicked flee when no man pursueth.” Illinois v. Wardlow, 528 U.S.119 (2000) (quoting Proverbs 28:1). Although running from the police cannot, byitself, constitute reasonable suspicion to detain, it is a significant factor.

• Walking away from officers. A suspect’s attempt to walk away has been held tobe a valid factor supporting a finding of reasonable suspicion. United States v.Holloway, 962 F.2d 451 (5th Cir. 1992); Lee v. Immigration and NaturalizationService, 590 F.2d 497 (3d Cir. 1979).

• Wanted flyers. As long as the issuing officer or agency has reasonablesuspicion to issue a wanted flyer or radio broadcast, a person meeting thedescription may be stopped and detained in order to determine identity andinvolvement in the crime under investigation. Ornelas v. United States, 517 U.S.690 (1996).

• Collective knowledge of multiple officers. “Officers are entitled to rely uponinformation relayed to them by other officers in determining whether reasonablesuspicion exists to justify an investigative detention.” United States v. Mullane,123 Fed. Appx. 877 (10th Cir. 2005); United States v. Cervine, 347 F.3d 865(10th Cir. 2003) (In determining reasonable suspicion, the court looks to theknowledge of all the police involved in the criminal investigation.).

! Reasonable suspicion of a traffic violation

Any traffic violation, no matter how insignificant, and whether a moving violation ornon-moving violation, justifies a traffic stop. United States v. Botero-Ospina, 71 F.3d783 (10th Cir. 1995). Even a minor parking violation may lead to a lawful trafficdetention. United States v. Burton, 334 F.3d 514 (6th Cir. 2003), cert. denied, 540 U.S.1135 (2004). The stop may also be based on a reasonable suspicion that the driver has


a suspended driver’s license or is the subject of an arrest warrant. Equipment violationsmay justify a stop. The following are examples of equipment violation stops that havebeen allowed by courts:

• License tag light out, where state law requires a light. State v. Weinheimer,2004 WL 323186 (Ohio App. 2004); State v. Patefield, 927 P.2d 655 (UtahApp.1996). License plate obscured or not visible from a reasonably safedistance. United States v. Edgerton, 438 F.3d 1043 (10th Cir. 2006).

• Turn signal on for an extended distance. State v. Marshall, 791 P.2d 880 (UtahApp. 1990). Some courts have disallowed a stop on this basis where no specificstate statute controls. United States v. Miller, 146 F.3d 274 (5th Cir. 1998).

• Wobbly wheel, which may have posed safety concern. State v. O’Brien, 959P.2d 647 (Utah App. 1998).

• Bouncing (skipping on pavement) tire. State v. Harrison, 533 P.2d 1143 (Az.1975).

• Bulging or balding tires. State v. Myers, 580 N.E.2d 61 (Ohio App. 1990).

• Missing mirror. State v. Thompson, 816 A.2d 550 (Vt. 2002).

• Brake light out. State v. Chevre, 994 P.2d 1278 (Utah App. 2000).

• Blinking headlight. State v. Pinkham, 565 A.2d 318 (Me. 1989).

• Improper bumper height. State v. Shiley, 598 N.E.2d 775 (Ohio App. 1991).

• Lack of mud flaps and tires extending beyond body. United States v. Cotton,223 F. Supp. 2d 1039 (D. Neb. 2002).

• Cracked windshield. Some courts have sustained traffic stops for crackedwindshields only where the officer could see that the crack was unsafe orviolated the equipment statute. United States v. Callarman, 273 F.3d 1284 (1othCir. 2001) (traffic stop was allowed where officer had reasonable suspicion thatcrack obstructed the driver’s vision), cert. denied, 535 U.S. 1072 (2002). Mostcourts, however, allow a stop upon observation of any crack. United States v.Cashman, 216 F.3d 582 (7th Cir. 2000) (cracked windshield provided basis forstop even if the crack was not large enough to violate equipment statute); Statev. Vera, 996 P.2d 1246 (Ariz. App. 1999) (stop proper even though no Arizonastatute specifically prohibits cracks).

• Parking violation. An officer may detain a vehicle and driver to investigate aparking violation even if a state treats parking violations as civil, rather thancriminal. The pretext stop doctrine established in Whren v. United States, 517


U.S. 806 (1996), does not distinguish between criminal and civil traffic violations.United States v. Choudhry, 461 F.3d 1097 (9th Cir. 2006). Other courts havereached similar conclusions, including a case where officers did not stop avehicle until following it several blocks from the scene of the illegal parking.United States v. Copeland, 321 F.3d 582 (6th Cir. 2003).

• Weaving outside of lane divider, breakdown lane, or fog lines. Rowe v. State,769 A.2d 879 (Md. 2001); State v. Smith, 21 S.W.3d 251 (Tenn. App. 1999).

• Weaving within the lane of travel. Note that most courts require some otherviolation or impairment clue, even the most minor, such as slow driving. State v.Dorendorf, 359 N.W.2d 115 (N.D. 1984). Repeated weaving within the lane maysupport a stop. Neal v. Commonwealth, 498 S.E.2d 422 (Va. 1998). Where theweaving is not significant, and there is no other violation, there is generally notsufficient reasonable suspicion for a stop. United States v. Colin, 314 F.3d 439(9th Cir. 2002); State v. Bello, 871 P.2d 584 (Utah App. 1994) (seizure of largeload of drugs suppressed when the only basis for the stop was a single incidentof weaving); Warrick v. Commissioner of Public Safety, 374 N.W.2d 585 (Minn.App. 1985) (“subtle” weaving of the vehicle within its own lane did not createreasonable suspicion for stop). One federal court noted: “If failure to follow aperfect vector down the highway were sufficient reason to suspect a person ofdriving while impaired, a substantial portion of the public would be subject eachday to an invasion of their privacy.” United States v. Lyons, 7 F.3d 973 (10th Cir.1993).

• Prolonged stop with no apparent reason and no other violation observed. Statev. Guthmiller, 499 N.W.2d 590 (N.D. 1993). This may be particularly significantat night.

• Stopping at a green light or stopping for no apparent reason. State v. Schriml,1997 WL 531219 (Ohio App. 1997) (remained stopped for 10 seconds after lightturned green); Parent v. Commissioner of Motor Vehicles, 1994 WL 723048(Conn. Super. 1994); State v. Goeman, 431 N.W.2d 290 (N.D. 1988). A briefdelay in starting after a light turns green may not be sufficient reasonablesuspicion for a traffic detention. State v. Roberson, 592 S.E.2d 733 (N.C. App.2004) (8- to 10-second delay in starting after light change not sufficient for stop);State v. Emory, 809 P.2d 522 (Idaho App. 1991) (five- to six-second delay notsufficient for a stop).

• Driving significantly below the speed limit when not warranted by conditions.State v. Haataja, 611 N.W.2d 30 353 (Minn. App. 2000) (reasonable suspicionfound when car drove slowly for a quarter of a mile and impeded traffic); State v.Ratliff, 728 P.2d 896 (Or. App. 1986) (driving at least 10 miles per hour belowspeed limit may be impairment clue and gives basis to stop), aff’d, 744 P.2d 247


(Ore. 1987); Sell v. State, 496 N.E.2d 799 (Ind. App. 1986) (reasonablesuspicion found when driver drove 15 to 20 miles per hour below the speed limitfor two to three minutes).

! Detention based on driver/passenger/owner status

In addition to an observed parking or moving violation, registration violation, orequipment violation, the driver’s, owner’s or passenger’s identity may provide the basisfor the stop. Stops may also be justified by:

• Knowledge, or reasonable suspicion, that the driver or passenger is the subjectof an arrest warrant. State v. Lopes, 552 P.2d 120 (Utah 1976).

• Recognizing the driver as having a suspended driver’s license. United States v.Hope, 906 F.2d 254 (7th Cir. 1990) (officer knew that license suspended as ofone week prior to the stop); United States v. Sandridge, 385 F.3d 1032 (6th Cir.2004) (officer knew that license was suspended 22 days before the stop); Statev. Decoteau, 681 N.W.2d 803 (N.D. 2004) (officer stopped same subject oneweek prior and learned of suspended license); State v. Wilkinson, 785 P.2d 1139(Wash. App.), review denied, 791 P.2d 534 (Wash. 1990). The court had notrouble invalidating a stop where the officer’s most recent contact with the driverhad been at least four months prior and there was no testimony of whether thedriver’s license was suspended at that time or how long prior to that stop theofficer knew that the license was suspended. United States v. Laughrin, 438F.3d 1245 (10th Cir. 2006).

• Running a registration check and learning that the registered owner has asuspended license. State v. Reno, 840 A.2d 786 (N.H. 2003); State v.Halvorson, 997 P.2d 751 (Mt. 2000).

• Running a registration check and learning that an arrest warrant has beenissued for the registered owner, when the driver reasonably could be theregistered owner. State v. Penfield, 22 P.3d 293 (Wash. 2001) (stop mustterminate when driver is found not to be registered owner); State v.Oshkeshequoam, 503 N.W.2d 23 (Wis. App. 1993).

• No reasonable suspicion is required to run a registration check. There is noexpectation of privacy in a license plate number visible to the public. UnitedStates v. Ellison, 462 F.3d 557 (6th Cir. 2006); Hallstein v. City of Hermosa Beach, 87 Fed. Appx. 17 (9th Cir. 2003); United States v. Sparks, 37 Fed. Appx.826 (8th Cir. 2002); Olabisiomotosho v. City of Houston, 185 F.3d 521 (5th Cir.1999).


! Community caretaking

An officer may approach a person to check on the person’s welfare, without anycriminal investigative purpose, and the encounter is not an investigatory detention. Forexample, if an officer sees a person slumped over the steering wheel of a car with theengine running, the officer may check on the person’s welfare without creating adetention. In re Matter of Clayton, 748 P.2d 401 (Idaho 1988). Knocking on the window,waking the person, and asking the person to step out and show identification will notcreate a detention when the purpose is to check on welfare. People v. Murray, 560N.E.2d 309 (Ill. 1990); State v. Kersh, 313 N.W.2d 566 (Iowa 1981).

Officers found a crash victim seated, staring straight ahead, and completelyunresponsive to questions about how he was doing. In an effort to find something thatmight explain the driver’s odd condition and to find some identification, one of theofficers opened the glove box and found an illegally possessed handgun. The courtupheld the search under the community caretaker doctrine. Because there was noFourth Amendment violation, the gun could be admitted into evidence against thedriver. United States v. Johnson, 410 F.3d 137 (4th Cir. 2005).

Williams was walking on the roadway median at 0350 on a cold morning. An officerstopped behind Williams, activating emergency lights, and approached Williams to seewhether he needed help. Williams told the officer that his car had stalled and he didnot need a ride or help. As a matter of routine, the officer asked for Williams name andDOB, which Williams willingly provided. The officer did not use commanding ordemanding language and was polite. The entire encounter lasted less than twominutes and Williams went on his way. The officer ran a warrants check anddiscovered that Williams had arrest warrants. The officer stopped Williams again andasked Williams if he knew why he was back. Williams admitted having arrest warrantsand he told the officer that he was carrying a gun. The officer arrested Williams on thewarrants and for illegally carrying a concealed weapon. Williams claimed that the initialdetention was not supported by reasonable suspicion and the encounter wasinvoluntary.

The Delaware Supreme Court held that Williams was not detained. This holding wasbased largely on the polite and non-demanding language used by the officer. Talknice, think mean is a principle of common decency and a principle that results in courtsgiving greater deference to officers’ actions on the street. Alternatively, the court heldthat if there was a seizure, the seizure was proper under the community caretakingdoctrine. Though this is the first time that the Delaware Supreme Court has ruled onthe basis of the community caretaking doctrine, the United States Supreme Courtacknowledged in Cady v. Dombrowski, 413 U.S. 433 (1973), that “police officersfrequently engage in what, for want of a better term, may be described as communitycaretaking functions, totally divorced from the detection, investigation, or acquisition ofevidence relating to the violation of a criminal statute.”


The Delaware court described the three factors necessary to justify a seizure under thecommunity caretaker doctrine. The large majority of states have adopted the doctrinein their state court decisions and follow these, or similar, criteria. “The communitycaretaker doctrine has three elements. First, if there are objective, specific andarticulable facts from which an experienced officer would suspect that a citizen is inapparent peril, distress or need of assistance, the police officer may stop andinvestigate for the purpose of assisting the person. Second, if the citizen is in need ofaid, then the officer may take appropriate action to render assistance or mitigate theperil. Third, once, however, the officer is assured that the citizen is not in peril or is nolonger in need of assistance or that the peril has been mitigated, the caretakingfunction is over and any further detention constitutes an unreasonable seizure unlessthe officer has a warrant, or some exception to the warrant requirement applies, suchas a reasonable, articulable suspicion of criminal activity.” Asking for Williams’ nameand DOB was an essential part of creating a police report of the encounter. “Officersare often required to make written reports of all encounters; an officer must also knowwho he has assisted in case someone files a legal claim against him; and innocentactivity can turn out later to be criminal activity.” Most courts applying the communitycaretaking doctrine have allowed the officer to ask for the name and other identifyinginformation of the persons contacted, particularly when the officer poses the request involuntary, not commanding, language. Williams v. State, 962 A.2d 210 (Del. 2008).

Anonymous Tips

! Investigatory stops

In the leading case addressing stops based on anonymous tips, Florida v. J.L., officersreceived an anonymous phone tip that a young black man wearing a plaid shirt wasstanding at a particular bus stop and that he had a concealed gun. Officers went to thebus stop and saw three black males, one of whom wore a plaid shirt. Officers had noinformation about criminal activity other than the anonymous call. The officers friskedall three men and found a gun on the man with the plaid shirt. The evidence of the gunwas suppressed. “Unlike a tip from a known informant whose reputation can beassessed and who can be held responsible if her allegations turn out to be fabricated,an anonymous tip alone seldom demonstrates the informant’s basis of knowledge orveracity.” Florida v. J.L., 529 U.S. 266 (2000).

An unnamed citizen informant who provides information face-to-face to officers is notconsidered the same as an anonymous tipster. United States v. Romain, 393 F.3d 63(1st Cir. 2004), cert. denied, 545 U.S. 1122 (2005). Thus, officers do not have the sameduty to confirm the citizen informant’s information before acting on it. A citizen wavedover an officer, reported drug dealing in a parking lot, and described the suspect, truck,and location. The officer immediately went to the parking lot and saw the truck leaving.The officer stopped the truck and located methamphetamine. The court noted that a“face-to-face encounter provides police officers with the opportunity to perceive and


evaluate personally an informant’s mannerisms, expressions, and tone of voice andthus, to assess the informant’s veracity more readily than can be done from a purelyanonymous phone tip.” Commonwealth v. Priddy, 184 S.W.3d 501 (Ky. 2005).

The court should consider the nature of the tip and the public interest at risk. Forexample, officers received an anonymous tip that a stolen tanker truck, containing1,000 gallons of anhydrous ammonia, was located at Smith’s house. Anhydrousammonia is commonly used to replenish nitrogen in soil. It is extremely caustic andburns skin severely on contact. Meth cooks use it in the so-called Nazi method ofmethamphetamine manufacture. Officers had previously visited Smith’s house onmethamphetamine investigations. They could see the stolen tanker truck parkedapproximately 75 feet from Smith’s house. The officers entered the property andverified that the tank was not leaking. A number of other officers knocked at the house. One of them saw a rifle lying on a mattress. Smith answered the door 10 minutes later. Smith claimed that he found the house unlocked and had been crashing there with awoman. Smith denied knowing what was in the tanker. Officers conducted a protectivesweep and found a shotgun in a crawl space and they saw equipment that could beused to manufacture methamphetamine. The rifle that they had seen earlier had beenhidden. The officers concluded that the concealed shotgun was the long gun that theyhad seen through the window. Smith was convicted of manufacturingmethamphetamine. The trial court ruled the warrantless entry was justified by thecommunity caretaking doctrine, protective sweep doctrine and exigent circumstances. He appealed, claiming that the warrantless entry and search was unlawful. The officersused the evidence found in the protective sweep to obtain a search warrant. A secondsearch revealed a meth lab. Even though the initial tip was anonymous, theWashington Supreme Court held that exigent circumstances justified the warrantlessentry. The chemical was extremely dangerous, the rifle had disappeared, and theofficers limited their search to a protective sweep. The court relied heavily on thevolatile nature of the anhydrous ammonia, and the officers’ testimony that they wereconcerned about being fired upon from the house, to support its conclusion. State v.Smith, 199 P.3d 386 (Wash. 2009).

In another case, the court looked at the seriousness of the threat to public safety inevaluating a stop based on an anonymous tip. Early on a Saturday morning, ananonymous caller told a police dispatcher: “I would like to report a black male with asilver hand gun. He was arguing with his, ah, girlfriend, or whatever.... They werewalking toward the 7-Eleven on Miami. He's tall. He's wearing a black jacket and bluejean pants. He has the gun on a holster. And I seen him pull it out.” Respondingofficers saw Wooden, the man matching the description, and a woman, though theywere not arguing. The officers frisked the man and found a gun with the serial numberfiled off. Wooden challenged the stop and frisk based on the anonymous tip. Thecourt of appeals upheld the frisk. The caller stated how he knew that Wooden had agun; the caller saw it displayed during an argument. Unlike Florida v. J.L., there wassome urgency in investigating the anonymous report “J.L. dealt with a situation inwhich there was no apparent need for haste, in which the caller did not describe howhe knew that J.L. was armed, and in which the tip was not recorded (so the police may


have misunderstood the details).” United States v. Wooden, 551 F.3d 647 (7th Cir.2008).

An anonymous caller who has reason to know that her identity might become knownshould also be treated with greater deference. An anonymous caller reported that ateenage male, Costa, had a gun in his waistband at a ball game. Responding officersfrisked the youth and found a cocked, loaded gun and several packets of cocaine. Aquick read of that limited information might suggest suppression under the decision ofFlorida v. J. L. However, the Massachusetts Supreme Court upheld the detention andfrisk in this case. The court commented that reliability was the key issue in Florida v.J.L. and there were sufficient reliability factors in this case. Though the caller wasanonymous, she stated that she was close enough to Costa that she thought he mightidentify her as the caller when police arrived. She knew that the conversation wasbeing recorded, and knew her phone number would appear on the dispatch calleridentification screen. When the caller placed her anonymity at risk by calling from aclose proximity to Costa, her reliability was enhanced. Unlike the Florida case, thecaller also said that she had personally seen the gun. Commonwealth v. Reed, 862N.E.2d 371 (Mass. 2007).

The greater the specificity of the anonymous tip, as well as a significant public safetyrisk, the more deference that a court should give to the anonymous tip. An anonymouscaller reported that a light-skinned African-American male had “just pulled a gun” onhim and had mentioned a gang name. The caller said he felt the perpetrator “wasgonna shoot me right there at that minute.” The caller described the suspect as havinga bandage over his left hand, as though it had been broken, and said that he was in thedriver's seat of a gray Nissan Maxima parked on the north side of Jefferson Boulevardat Ninth Avenue, near the recycling center. The caller refused to give his name, sayingthat he was in fear. A few minutes later, the caller made a second call and identifiedhimself as “Drew.” He said that he had seen the Nissan again and wanted to correcthis description of the vehicle. It was black, not gray.

Officers arriving at the scene spotted a black Nissan Maxima in the precise locationdescribed by the caller. There were three people in the car. Dolly was sitting in thedriver's seat and had cast on his left arm. Officers detained the occupants and found agun under the front seat. Dolly challenged the detention asserting a lack of reasonablesuspicion, citing Florida v. J.L.

The California Supreme Court overturned a lower appellate court to hold that Dolly’sdetention was lawful, based on the specificity of the information provided by theanonymous caller. The caller’s report that the suspect had pointed the gun at himcreated a greater danger than a report that a juvenile was carrying a weapon illegally. There was a “grave and immediate risk” to the tipster and to others in the area. Thecourt noted that callers are generally aware that 911 calls are recorded and are thusdeterred from making false reports. The caller’s fear that retaliation would follow if he


gave his name, coupled with his mention of a gang name, gave a reasonableexplanation for his desire to remain anonymous. People v. Dolly, 150 P.3d 693 (Cal.2007).

! Traffic stops

Most courts generally uphold stops based on anonymous reports of an impaired driverwhen the tipster provides a sufficient quantity and quality of information about thevehicle and the reason for suspicion. When the tip is anonymous, some courts requirethat the officer personally observe impaired driving or a traffic violation to justify a stop.Kaysville City v. Mulcahy, 943 P.2d 231 (Utah App. 1997). One court justified upholdingan arrest stemming from an anonymous tip with details of highly erratic driving bycomparing an impaired driver to a “time bomb” on a public highway. United States v.Wheat, 278 F.3d 722 (8th Cir. 2001), cert. denied, 537 U.S. 850 (2002). Another citedthe “awesome carnage” wrought by impaired drivers. State v. Gollotta, 837 A.2d 359(N.J. 2003).

Generally, a description of the vehicle color and style, accompanied by details of theerratic driving, will justify a stop if the officer is able to confirm the details provided andthe stop occurs within a reasonable time of the anonymous report. After a citizenreported the vehicle type, color, direction of travel, road number on which the vehiclewas traveling, and reported that the vehicle was swerving across lanes, an officerstopped the vehicle before observing any erratic driving to confirm the suspicion of animpaired driver. The court upheld the stop, noting that the “report of a possiblyintoxicated highway driver, ‘weaving all over the roadway,’ poses a far more grave andimmediate risk to the public than a report of mere passive gun possession” as reportedin J.L. v. Florida. People v. Wells, 136 P.3d 801 (Cal. 2006). Moreover, a traffic stopimposes less embarrassment and intrusion than a stop and physical frisk on thesidewalk. Many other courts have reached similar conclusions, even when officers sawno erratic driving pattern. Kellems v. State, 842 N.E.2d 352 (Ind. 2006) (officerconfirmed vehicle type, color, and license plate); State v. Scholl, 684 N.W.2d 83 (S.D.2004) (officer verified vehicle type and color and license plate number before stop);Bloomingdale v. State, 842 A.2d 1212 (Del. Super. 2004) (officer confirmed vehiclemake, model, and color, and race of driver before stop); State v. Gollotta, 837 A.2d 359(N.J. 2003) (officer confirmed partial plate, vehicle style and color).

Passenger Contacts

! Passengers are lawfully seized

A lawful traffic stop of a driver produces a lawful detention of passengers. “When apolice officer makes a traffic stop, the driver of the car [and the passengers are] seizedwithin the meaning of the Fourth Amendment.” Brendlin v. California, 551 U.S. 249(2007). The facts of Brendlin's case represent a common outcome of so-called "routine"traffic stops. Bruce Brendlin was a passenger in a car stopped by a California officer. The officer had spotted the car's temporary registration while it was parked and had


confirmed that the permanent registration was in process. After stopping the car, theofficer recognized the passenger as "one of the Brendlin brothers" and checked forwarrants. The officer found an parole violation arrest warrant for Bruce Brendlin. Theofficer arrested Brendlin, searched him, and found drug evidence.

Focusing on the objective standard of whether a reasonable person would havebelieved that he or she was free to leave, Justice Souter said that the Court's "intuitiveconclusion" lead it to conclude "that in these circumstances any reasonable passengerwould have understood the police officers to be exercising control to the point that noone in the car was free to depart without police permission." A reasonable passengerin a vehicle stopped by police would "expect that a police officer at the scene of acrime, arrest, or investigation will not let people move around in ways that couldjeopardize his [or her] safety."

The Court noted its previous ruling in Maryland v. Wilson that permits officers to requirethe driver and any passengers to remain in the car, or to get out of the car, solely topreserve the officers' safety. Maryland v. Wilson, 519 U.S. 408 (1997). Justice Souterexplained that Brendlin's act of remaining seated in the car may well have signaled hissubmission to police authority. Some courts have relied on Maryland v. Wilson to rulethat officers may require the driver and passengers to remain inside the car. Rogala v.District of Columbia, 1616 F.3d 44 (D.C. Cir. 1998). Other courts extend the rule torequire the driver and passengers to keep hands in plain sight during the traffic stop. United States v. Moorefield, 111 F.3d 10 (3rd Cir. 1997); King v. State, 696 So.2d 860(Fla. App. 1997).

A majority of courts considering the issue, including nine federal circuit courts ofappeal, had previously ruled that passengers were seized when a driver submits to atraffic stop. Only the supreme courts in California, Colorado and Washington haddiverged from the majority view. Thus, the Brendlin decision does not dramatically alterthe legal landscape for most officers, but it does provide a note of caution, and stillleaves open several important questions about officers' interactions with passengers. The decision did not even help Bruce Brendlin. The Supreme Court sent the case backto California to decide whether Brendlin's status as a parole fugitive impacts hisstanding to challenge the admittedly-improper stop. The California court ruled in favorof the prosecution and Brendlin went off to prison.

! Identifying passengers

Some commentators wrongly suggest that officers cannot even ask passengers' namesand can never request identification documents. One court relied on the SupremeCourt decision in Muehler v. Mena to establish the bright line rule that an officer mayask a passenger for identifying information. United States v. Hernandez, 418 F.3d1206 (11th Cir. 2005) ("arguments that the trooper asked questions unrelated to eitherofficer safety, the speeding offense, or processing the citation are not determinative ofour evaluation of the constitutionality of the seizure here. We are to look only at theduration of the seizure given all the circumstances: was it for an unreasonable time?").


In Muehler v. Mena, 544 U.S. 93 (2005), the Supreme Court held that questioningalone does not constitute a “seizure.”

When an officer uses a friendly, conversation tone (talk nice, think mean!) to requestpassenger identification, most courts rule that the request is voluntary and requires noreasonable suspicion of criminal activity. State v. Williams, 590 S.E.2d 151 (Ga. App.2003); State v. Smith, 683 N.W.2d 542 (Iowa 2004); People v. Jackson, 39 P.3d 1174(Colo. 2002). Other courts have allowed officers' requests for passenger identificationbased on the need to record witnesses' names, even on a traffic citation. State v.Jones, 5 P.3d 1012 (Kan. App. 2000), aff'd, 17 P.3d 359 (Kan. 2001); State v.Chagaris, 669 N.E.2d 92 (Ohio App. 1995); People v. Grant, 266 Cal.Rptr. 587 (Cal.App. 1990).

Harris, was a passenger in a car that was for an illegal turn. The officer asked Harris forhis identification and Harris produced a state ID card. The officer conducted acomputer check and arrested Harris for a warrant. The search incident to arrestrevealed cocaine and drug paraphernalia in Harris’s jacket pocket. The IllinoisSupreme Court initially ruled the check of Harris’s identification was improper. Theprosecution appealed to the U.S. Supreme Court, which overturned the Illinois decisionand directed that the Illinois court reconsider the case in light of Illinois v. Caballes, 543U.S. 405 (2005). The Illinois Supreme Court framed the question before it as: “when aperson is lawfully seized, but the police lack individualized reasonable suspicion, maythe officer request that the person provide identification and then use that informationto conduct a warrant check?” The court ruled that, unless the check unreasonablyprolongs the stop, an officer may ask for a passenger’s identification and may run awarrants check. However, the passenger is free to refuse to provide identification.

Following the U.S. Supreme Court decisions in Illinois v. Caballes and Muehler v.Mena, 544 U.S. 93 (2005), courts have allowed greater investigative freedom duringtraffic stops. Many courts had rigidly held to principles drawn from Terry v. Ohio andruled that any questioning beyond the purpose of the traffic stop or requests forconsent to search must be based on reasonable suspicion of criminal activity. Caballesestablished that officers may conduct a suspicionless canine sniff at a traffic stopduring the stop, as long as the sniff does not unreasonably prolong the stop. Muehlerclarified that questioning during an otherwise lawful seizure does not constitute adistinct 4th amendment event or further seizure and such questioning does not requirereasonable suspicion. The Illinois court considered these two cases and overruled aprior case that required officers to have reasonable suspicion to ask questionsunrelated to the initial purpose of the traffic stop. The court then held that drivers andpassengers do not have an expectation of privacy in the contents of public records,such as would be revealed during a warrants check. Thus, a warrants check onpassengers that does not unreasonably extend the traffic stop is permissible.

Harris argued that he did not voluntarily produce his identification. Acknowledging therecent case of Brendlin v. California, the court held that Harris’s claim must address thequestion of "whether an innocent person in defendant’s circumstances would have felt


free to decline to produce his identification for the officer." In other words, would areasonable person believe that he or she could decline the officer’s request foridentification documents or identifying statements? The court opined that a reasonableperson in Harris’s position would feel free to refuse to identify himself, even though heknew that the driver was being arrested.

Harris could have asked the officer the purpose of the identification request. Theofficer testified that he intended to verify whether Harris could drive the car once thedriver was arrested. Other possible explanations to such a request might include thedesire to list witnesses’ names on the arrest report, to know with whom the officer wasdealing, or to determine the relationship of the passengers to the driver or to the carowner. This case emphasizes the legal consequence of using the language of consentand persuasion to obtain identification and make a lawful warrants check. People v.Harris, 886 N.E.2d 947 (Ill. 2008).

Weapon, Drug, Alcohol and Consent Questions

The United States Supreme Court has clarified a line of confusion in earlier lower courtcases that lead some courts, including Utah appellate courts, to require some measureof suspicion before asking about weapons, drugs or alcohol in the car, or before askingfor consent to search a car during a lawful traffic stop. In Arizona v. Johnson, theSupreme Court recently held that the topic of questions asked during a traffic stop isnot relevant to the evaluation of the lawfulness of the stop unless the questioningimpermissibly expands the duration of the detention.

In Johnson, an officer stopped a car for a traffic violation in a Tucson neighborhoodknown for gang activity. One officer dealt with Johnson, the back-seat passenger,whose behavior and clothing prompted questioning. The officer learned that Johnsonwas from a town with a Crips gang and that he had been in prison. The officer askedJohnson to get out of the car, where the other occupants could not hear them, in orderto question him about his gang affiliation. The officer suspected that Johnson wasarmed and frisked him, feeling a gun. A further search revealed that he was holdingmarijuana. Johnson began to struggle, and the officer handcuffed him. Johnson wascharged with possession of drugs and possession of a weapon by felon.

The Arizona Court of Appeals held that Johnson was lawfully seized during theencounter by virtue of being a passenger in a car that was lawfully stopped for aninsurance violation. The Arizona court also held that the initial encounter between theofficer and Johnson was voluntary. The court stated that once the officer began toquestion Johnson on a matter unrelated to the traffic stop, the frisk authority ceased,unless there was independent reasonable suspicion that Johnson had committed, wascommitting or was about to commit, a crime. Various courts have reached differentresults on the question of whether officers may move from a voluntary encounter to afrisk if the officer develops reasonable suspicion to believe that the suspect is armedand dangerous.


In Terry v. Ohio, 391 U.S. 1 (1968), the Supreme Court ruled that an officer mayconduct a frisk when two conditions are present. First, the investigatory stop must belawful, based on reasonable suspicion that the person detained is committing, is aboutto commit, or has committed, a crime. Second, to move from a stop to a frisk, theofficer must reasonably suspect that the person stopped is armed and dangerous. Twoyears ago, in Brendlin v. California, 551 U.S. 249 (2007), the Supreme Court held that atraffic stop constitutes a seizure of a vehicle’s passengers as well as the driver. Thetemporary seizure of the vehicle occupants normally remains reasonable for theduration of the stop. The Court held that Johnson remained lawfully seized for theduration of the traffic stop. Thus, the first requirement of the Terry v. Ohio frisk wassatisfied. Because the officer had reasonable suspicion (an issue assumed, though notdiscussed, by the lower court), the frisk was lawful and the gun and drugs were lawfullyseized.

Four years ago, in Muehler v. Mena, 544 U.S. 93 (2005), the Supreme Court held thatmere police questioning on a topic unrelated to the initial reason for an otherwise lawfulinvestigatory detention does not create a further seizure requiring a further legal basis. Muehler was a case addressing a detention during a search warrant execution at ahome. However, many courts have applied its reasoning to questioning at traffic stops. For example, in United States v. Olivera-Mendez, 484 F.3d 505 (8th Cir. 2007), thecourt of appeals agreed with several other circuit courts of appeals that, based ofMuehler, the brief extension of a traffic stop to ask off-topic questions is permissible. Other courts disagreed. A unanimous Supreme Court has now resolved this importantquestion. The Court held: “An officer's inquiries into matters unrelated to thejustification for the traffic stop, this Court has made plain, do not convert theencounter into something other than a lawful seizure, so long as those inquiriesdo not measurably extend the duration of the stop.” Arizona v. Johnson, 129 S.Ct.781 (2009).

Documents

Current Legal Issues in Traffic and Investigatory Stops