from the what-4th-amendment? dept
The Supreme Court made it pretty clear in its Rodriguez decision that pretextual traffic stops were fine, but once the pretext evaporated, it was time to cut civilians loose.
We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police observed traffic violation, therefore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation.
That’s all there is to it. If you pull someone over for, say, a malfunctioning tail light, once a ticket is issued for the tail light, the stop needs to end. It cannot become — without the natural development of reasonable suspicion — into a fishing expedition for serious criminal activity or an excuse to pervert the already substantial automobile exception to warrant requirements.
Some cops thought this just meant any Fourth Amendment violations needed to be performed quickly. Courts have responded (in some cases) by pointing out it’s not the length of the constitutional violation, but rather the fact that the Constitution was violated.
A case recently handled by the Eighth Circuit Appeals Court appears to ignore Supreme Court precedent. This decision [PDF] says cops can ignore the Rodriguez decision and make up their own rules for traffic stops. It all starts with a pretextual stop and some vivid cop imagination that ended up with a drug bust. The stated cause for the stop was a lane violation. Everything else was just good police work, as the Eighth Circuit sees it.
After stopping Noriega, Officer Miller approached Noriega’s front passenger-side window and smelled an overwhelming “perfume-type odor” emanating from Noriega’s front and rear passenger-side windows. When Noriega handed Officer Miller his driver’s license, registration, and proof of insurance, Officer Miller observed that Noriega’s hand was “trembling” and his face was “twitching.” Officer Miller noticed that Noriega had a Nevada driver’s license and license plate and a Las Vegas, Nevada address. Officer Miller testified that Las Vegas is a “transshipment center,” i.e., a location where large quantities of narcotics are shipped to and then trafficked to states further inland.
Perfume ain’t exactly the “odor of marijuana” that justifies so many extended traffic stops. The “trembling” and “twitching” is left to the officers’ imagination, since there appears to be no body cam or dash cam record of this stop. Las Vegas may indeed be a “transshipment center,” but it’s also an incredibly popular tourist destination. How this adds up to reasonable suspicion is anyone’s guess, but the Appeals Court has delivered a published opinion, which makes the following speculation akin to settled law in the circuit.
Officer Miller explained that Noriega appeared to be uncomfortable answering questions about his travel plans and repeatedly attempted to divert the conversation to other topics. Similarly, Special Agent Gosnell explained that when Officer Miller returned to his patrol vehicle to run Noriega’s driver’s license, registration, and proof of insurance, he mentioned that Noriega was “overly nervous,” was providing “vague and implausible travel plans,” and a “strong perfume-like odor [was] coming from the vehicle.”
At this point, the officers only had some flawed assumptions about human behavior, an odor described as “perfume-like,” and a purported lane violation. Officers ran Noriega’s license and discovered it was valid and he had no outstanding warrants. At that point, the traffic stop should have been over. Officer Miller admitted as much when he returned Noriega’s license to him. (Emphasis mine.)
Officer Miller returned Noriega’s driver’s license, registration, and proof of insurance and told him that he was “good to go.” Noriega thanked Officer Miller and put his vehicle into gear.
Free to go is free to go. Or so you would think. It’s never that simple, even though it should have been that simple, given Supreme Court precedent. But that’s not what happened. Despite being told he was “good to go,” Noriega was not, in fact, good to go. (Emphasis mine, again, because there’s no way the Appeals Court is going to emphasize something that plainly disagrees with its conclusion.)
However, before Noriega pulled away, Officer Miller asked Noriega if he was carrying any narcotics. Noriega said no, so Officer Miller asked to search Noriega’s vehicle. Noriega expressed his confusion, telling Officer Miller that he thought that he was free to go. This exchange continued, with Noriega asking if he was required to consent to a search and Officer Miller telling Noriega that he had a drug dog in his patrol vehicle. Eventually, Officer Miller directed Special Agent Gosnell to remove the drug dog from the patrol vehicle. Officer Miller testified that upon seeing the dog, Noriega agreed to a dog sniff around the perimeter of his vehicle. Officer Miller testified that Noriega asked to exit the vehicle prior to the dog sniff, which Officer Miller allowed, and according to Officer Miller’s testimony, upon Noriega’s exit, Noriega’s legs were visibly “shaking.” The dog alerted Officer Miller to the driver-side lower rear door seam. Officer Miller testified that he asked Noriega if he could search the interior of Noriega’s vehicle and Noriega agreed.
The end result was the discovery of 22 packages of meth in Noriega’s vehicle. Despite being free to go, Noriega was subjected to multiple searches. And while he may have agreed to the K-9 search, he clearly only did so because he was made to feel he had no other options. There was nothing consensual about this search, despite officers portraying it as a consensual search in their reports. Their supporting statements pointed to nothing more than the normal reactions a person might have when pulled over for nebulous reasons by multiple law enforcement officers: nervousness, “trembling,” etc.
The Supreme Court’s holding in Rodriguez was unambiguous: when the objective of the traffic stop is fulfilled, officers cannot keep attempting to talk people into warrantless searches or otherwise detain them. Officer Miller clearly told the driver he was free to go. When the driver attempted to go, he was detained again and multiple searches were performed. Somehow, the Appeals Court feels this did not violate Supreme Court precedent. Rodriguez arrived in 2015. This traffic stop occurred in 2019. There should be no question about the constitutionality of this illegally extended stop.
The district court — which erred first — could not have gotten this more wrong.
The district court ultimately denied Noriega’s motion to suppress. First, the district court found that, in light of Officer Miller’s experience and training, his testimony was credible. It then concluded that after Officer Miller returned Noriega’s driver’s license, registration, and proof of insurance, the encounter was consensual, meaning that Noriega was not seized for purposes of the Fourth Amendment, but that even if Noriega was seized, “the facts testified to . . . provide reasonable suspicion for the ongoing investigation of illegal narcotics trafficking.”
But it wasn’t consensual. If it were truly consensual, we wouldn’t be reading this opinion and we wouldn’t be writing about it. When Miller told Noriega he was free to go, it should have ended there. Noriega would have continued driving and his rights never would have been violated. But that’s not what happened. The return of Noriega’s documents may have made it easier for him to extricate himself from this stop, but the officer’s continued questions heavily hinted he could not leave. And his follow-up statements about a drug dog made it clear the officer intended to perform a search of the vehicle. Very few people would have felt comfortable driving away from this encounter. That’s the ambiguity cops abuse. And that abuse is exactly the thing courts are supposed to punish cops for.
That didn’t happen at the lower level. And this failure is affirmed by the Appeals Court.
We need not decide whether a seizure occurred because, even assuming that Noriega was seized, the traffic stop was not unlawfully extended.
This is a truly astounding conclusion. The officer’s own testimony states he told Noriega he was “good to go.” But then he didn’t let him go. He kept asking questions unrelated to the alleged lane violation. Just because the officer felt there was some drug trafficking going on, his assertions about non-drug odors and subjective perceptions of the driver’s nervousness add up to nothing. If the involved officers felt they had reasonable suspicion to extend the stop, they never should have told the driver he was free to go.
This decision needs to be appealed to the Supreme Court. There is no way this extension is valid. When a law enforcement officer tells someone they’re free to go, the objective of the stop has clearly been seen to its conclusion. If an officer wishes to extend a stop, they need to make sure they don’t tell drivers they’re free to go before insinuating that leaving is out of the question… at least not until they can run a drug dog around the vehicle. Nothing about the search was consensual, no matter how the officers choose to portray it.
The Eighth Circuit fell down on the job here and it’s up to the Supreme Court to reverse this decision. Whether or not it will remains to be seen. The defendant needs to appeal. And the Supreme Court needs to do its job and benchslap lower courts that are apparently unable to decipher precedential decisions.
Filed Under: 4th amendment, 8th circuit, extended traffic stop, pretextual traffic stops, traffic stops, warrantless search