Probably all law enforcement officials in the country—certainly all police dog handlers—know the basic holding in Caballes, that a sweep by a drug dog during a lawful traffic stop, which does not reveal information other than the location of a substance that no individual has any right to possess, does not implicate the Fourth Amendment and, therefore, does not require reasonable, articulable suspicion. One word that it is critical to keep in mind in such stops, however, is “during.” A Georgia case shows that if the purpose of the stop is abandoned, the sweep of the car with a drug dog must be supported by reasonable suspicion because failure to continue processing the traffic violation is the same as having completed the reason for the stop. If, in such a situation, the only suspicion arises from the driver’s nervousness and failure to look the officer in the eye, in a number of jurisdictions there may not be sufficient reason to perform the sweep with the dog. This happened in a case in Georgia, despite the fact the sniff occurred only eight minutes into the stop.
On October 3, 2008, a patrol officer saw Ralph Nunnally twice fail to use his turn signal and pulled him over, then requested and received Nunnally’s driver’s license and insurance documentation. The officer testified that Nunnally displayed fidgety hand movements and did not look him in the eye. Concerned about this nervousness, the officer returned to his patrol car and called for a backup unit, which on that day was a K-9 unit. The officer had dispatch run the driver’s license but did not start the citation. He testified that he “mainly focused my attention on Mr. Nunnally due to his moving around within the vehicle.” When the backup unit arrived, the patrol officer requested that Nunnally step out of his vehicle and patted him down, finding no weapon or contraband.
The Georgia Court of Appeals describes what happened next:
“We note that, even after the backup officer arrived at the scene and the patrol officer had removed Nunnally from his vehicle and determined that Nunnally did not have a weapon on his person, the patrol officer admittedly did not engage in any traffic law enforcement. For example, he did not start writing any citation or warning. In fact, he testified afterward that he had ‘no idea’ whether the driver's license information he had requested from dispatch had been made available to him by the time the backup unit arrived at the scene.”
Defense counsel in such situations should attempt to find out if the abandonment of the traffic violation goes back as far as the call for backup by cross-examining on whether the patrol officer knew that backup would be a K-9 unit, whether the officer had used the K-9 unit as backup before, and what results had been obtained from prior calls to this unit. Although the judge might cut such a line of questioning short on objection by the prosecution, defense might be able to suggest that, almost from the beginning, the patrol officer had turned the stop into a narcotics investigation.
The court continues:
“Thus, the officer was asked, ‘So you kind of made the decision to not worry about the license at that time. Your priority was to wait for the officer to come with a drug dog?’ The patrol officer responded, ‘Yes.’”
The question that was asked of the officer, presumably by defense counsel, “So you kind of made the decision…”, shows good strategic thinking, almost innocently asking about the priorities the patrol officer was working under. The officer’s forthright “Yes” indicates that the officer did not give this change in priorities a second thought. The appellate court, reviewing the trial court testimony, saw the change in priorities after the stop as implicating Fourth Amendment concerns that were being taken too lightly by the patrol officer. Defense counsel may have been surprised at how easily the “Yes” came in response to the question. If the officer had insisted that the only reason for the call for backup was his concern for safety, and continued to hold that position, and also continued to investigate any issues raised by the license and registration, defense counsel would have had nothing to build on.
The court completes the summary of the events:
“After the K–9 unit arrived [about eight minutes after the stop began] and Nunnally was removed from his vehicle and his person was checked for weapons, the record shows, the patrol officer next asked Nunnally for consent to search his vehicle. When Nunnally refused, the patrol officer instructed the backup officer (a police canine handler) to walk the dog around Nunnally's car to sniff for the odor of narcotics. The patrol officer was later asked, ‘So basically, whether Mr. Nunnally consented or not, you were going to have that dog walk around the car.’ The officer responded, ‘Absolutely.’”
Again the officer has readily aided the strategy defense counsel has taken by showing that with minimal, and probably not reasonable, suspicion, he was going to make sure a dog sniff occurred, and was going to do so after failing to pursue the initial reason for the stop.
Relying primarily on Georgia state law precedent, the Court of Appeals noted that an officer could, during a traffic stop, investigate and determine if the driver was entitled to continue to operate the vehicle by checking the driver’s license, insurance, and registration. Further, he could question the driver during the traffic stop and, if concerned for his safety, ask the driver and any passengers to exit the vehicle.
The problem that the court found with the police procedure in this case was that the purpose of the stop was not pursued:
“There was no evidence that, once the K–9 unit arrived, either police officer diligently pursued a means of investigation that was likely to confirm or dispel quickly any suspicion related to the observed traffic infractions. Indeed, neither officer so claimed. Rather, the patrol officer acknowledged that, with the K–9 unit at the scene, he turned his attention to a search of Nunnally's car, which search included executing his earlier-formed plan to employ the drug dog to sniff the car's exterior (if Nunnally withheld consent). The purpose of the traffic stop—to enforce the laws of the roadway and to investigate Nunnally's manner of driving with the intent to issue a citation or warning—was thereby temporarily abandoned. Under these circumstances, there was no evidence that the investigative detention of Nunnally lasted ‘no longer than [was] necessary to effectuate the purpose of the stop’ and no evidence that the scope of Nunnally's detention was ‘carefully tailored to its underlying justification.’” (The quoted language in the last sentence was taken by the court from Smith v. State, 281 Ga. 185, 640 S.E.2d 1 (2006).)
Although the court largely confined itself to Georgia state precedent, it might have also cited Justice Brennan’s concurrence in U.S. v. Place, 462 U.S. 696 (1983), saying that it “is clear that Terry [Terry v. Ohio, 392 U.S. 1 (1968)], and the cases that followed it, permit only brief investigative stops and extremely limited searches on reasonable suspicion. They do not provide the police with a commission to employ whatever investigative techniques they deem appropriate.” Every patrol officer in this country should be familiar with Terry and Place, and most undoubtedly are.
The Court of Appeals also found no evidence that “the prolonged detention was justified by a reasonable, articulable suspicion of criminal activity.” Nervousness, fidgety hand movements, and not looking an officer in the eye were not enough.
Some courts have found that nervousness can be a factor that will support reasonable suspicion. See U.S. v. Perez, 37 F.3d 510 (9th Cir. 1994) (“Perez’s nervous behavior, his avoidance of eye contact with officer Owens, and his profuse perspiration … all are suspicious factors, even if they would not, alone, be sufficient to justify continued questioning”); U.S. v. Taylor, 934 F.2d 218 (9th Cir. 1991) (defendant’s nervousness at checkpoint constituted “minimal, articulable suspicion”); U.S. v. Hernandez-Alvarado, 891 F.2d 1414 (9th Cir. 1989) (avoidance of eye contract can be considered suspicious if “special circumstances … make innocent avoidance of eye contact improbable”); U.S. v. Nikzad, 739 F.2d 1431 (9th Cir. 1984) (nervousness and failure to make eye contact gave rise to reasonable suspicion). Often additional factors seem to be emphasized along with the manifestations of nervousness. See U.S. v. Lebrun, 261 F.3d 731 (8th Cir. 2001) (sweating profusely despite cold weather, along with nervousness, wrappers on the floor, and vague answers provided particularized suspicion, at least for officer with 13 years of experience); U.S. v. Smith, 263 F.3d 571 (6th Cir. 2001) (nervousness was primary reason for continued detention after initial traffic stop, but all factors were not sufficient to provide reasonable articulable suspicion).
Nevertheless, the detention might not have had to be prolonged if the purpose of the stop had not been abandoned by the officer, given that the “traffic law enforcement was admittedly suspended while he pursued a drug law investigation.” The court cited Illinois v. Caballes, 543 U.S. 405, 125 S.C. 834, 160 L.E.2d 842 (2005), holding, as stated above, that a drug sniff during a lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
The trial court denied the motion to suppress, emphasizing that the drug dog had arrived approximately eight minutes into the stop, pointing to much longer detentions. The Court of Appeals noted that where longer detentions had been approved, there “was evidence either that, after the stop of the vehicle, the police diligently pursued a means of investigation likely to confirm or dispel their suspicions regarding a traffic infraction or that, during the course of a valid traffic stop, information developed that provided a reasonable, articulable suspicion to prolong the detention beyond the time reasonably required for completion of the traffic stop.” There was no such evidence here, however.
The conviction for marijuana possession was reversed. Had the officers followed properly designed procedures, they would have been able to pursue their suspicions further and quite likely would not have had the evidence from the sniff thrown out.
Some departments advise officers that where two types of nervous behavior exist, the officer does not have reasonable suspicion, but where three are present, the weight swings to the officer. Although no such hard and fast rule is easily extracted from the case law, it is nevertheless true that the more reasons an officer can articulate and document for his or her suspicion, the more likely the officer’s testimony will be able to withstand a defense challenge to a reasonable suspicion argument. In addition to noting suspicious behaviors, the officer should attempt to put in a report how long the behaviors continued and what degree of, say, fidgeting was involved (e.g., the driver dropped his license several times before he could hand it to the officer).
This blog was written by John Ensminger and L.E. Papet.
Sources: Nunnally v. Georgia, 2011 WL 2437838 (Ct.App. 2011); see also Georgia v. Blair, 239 Ga.App. 340, 521 S.E.2d 380 (Ct.App. 1999) (motion to suppress granted where officer abandoned investigation and detained occupants of car in order to search for drugs); Barnett v. Georgia, 275 Ga.App. 464, 620 S.E.2d 663 (Ct.App. 2005) (no prolongation where drug dog air searched around stopped vehicle before results of driver’s license check were returned to patrol officer).