Don’t Forget Why You Made a Traffic Stop, or a Sniff Might Get Thrown Out

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).

Close Windows, Crank Up the Air: Driver Can Be Asked to Prep Car for Sniff

At an Illinois traffic stop, a police officer told the driver to roll up her truck’s windows and turn the ventilation system’s blowers on high before a second officer conducted a canine sniff of the exterior of the truck. The dog alerted on both doors of the truck and a subsequent search found methamphetamine. The circuit court of Adams County granted a motion to suppress, but the appellate court reversed and the Supreme Court of Illinois affirmed. Thus, the officer’s actions in ordering the driver to close the windows and turn up the ventilation system’s blowers was held, in an opinion written by Justice Karmeier, not to constitute an unreasonable search under the Fourth Amendment.

The police had received information that the defendant was a methamphetamine user and an officer and staked out her apartment. When she was seen leaving the apartment with a man carrying white trash bags that were put in the back of the truck, the officer, Tyler, radioed a canine officer that he intended to make a traffic stop and wanted a dog sniff conducted during the stop. Officer Tyler made the stop in a gas station, explaining to the driver, Cheryl Bartelt, that she had parked too long on the sidewalk in front of her apartment. While he was conducting a computer check on Bartelt’s driver’s license and insurance information, Officer Kent arrived with his narcotics detection dog, Max.

Officer Kent followed the protocols of the Illinois State Police, which include a set-up procedure in which the driver is told to turn off the engine, turn the key on auxiliary, turn the blowers on high, roll up the windows and close the doors. The court then described the sniff procedure:

“Officer Kent begins a dog sniff by walking the dog parallel to the vehicle, beginning at the front and proceeding counterclockwise for two passes. The dog signals an alert by turning perpendicular to the vehicle. In addition, the dog's breathing will change, and his sniffing will intensify or become more rapid. Finally, the dog will put a paw out, look at the handler, and start barking. Probable cause is obtained through a dog's positive alert.”

The alert occurred before Officer Tyler even began writing the ticket. Tyler told the defendant and her passenger to exit the truck and obtained consent to search their persons, but nothing was found. A search of the truck revealed a bag containing a digital scale with white powder residue, several burnt pieces of tin foil, and a pen casing with a burnt end and powder inside. Bartelt was arrested.

In a Tenth Circuit case, U.S. v. Ladeaux, a Wyoming Highway Patrolman had stopped a car because the driver was not wearing a seat belt, had followed another car going below the speed limit too close, and had changed lanes without signaling. The driver’s nervousness gave the Patrolman a hunch that something might be in the vehicle and he called for canine backup. The canine handler asked that the windows be rolled up and the vents turned on, and during the sniff the dog alerted to the trunk of the vehicle. The subsequent search revealed 15 pounds of marijuana. Federal drug charges were filed and a motion to suppress was denied by the district court. The Tenth Circuit discussed the Constitutional issues but remanded for consideration of whether the procedure involving the windows and vents violated the Fourth Amendment. On remand, the district court granted Ladeaux’s motion to withdraw his motion to suppress so no further law was developed on the issue.

Justice Karmeier described Bartelt as a case of first impression because the Tenth Circuit, though faced with the same issue, had remanded in Ladeaux. The circuit court in Bartelt had granted the motion to suppress because the procedure had, in effect, allowed the officers to manipulate the air within the truck that would not otherwise have been subject to Max’s plain smell (though of course the dog may still have alerted). The appellate court had reversed because the dog had remained outside the truck and the defendant had no legitimate expectation of privacy in the potentially incriminating odors emanating from a lawfully stopped vehicle.

The Fourth Amendment prohibits unreasonable searches and seizures, but the court said that Bartelt had based her appeal on the procedure being an unreasonable search, not a seizure (though the issue of a seizure may have been raised in one sentence of the defendant’s appeal). The court found Illinois v. Caballes controlling because “the dog sniff in the present case was not a search subject to the fourth amendment because it did not ‘compromise any legitimate interest in privacy.’” (The internal quote was taken by Caballes from U.S. v. Jacobsen.)

The Illinois Supreme Court found an analogy in the luggage prepping procedure approved in a Fifth Circuit case, U.S. v. Viera, in which DEA agents pressed suitcases before a dog sniff to push some of the air out of them for the dog to smell. The dissent noted that luggage manipulation was not approved by the Supreme Court in Bond v. U.S. Bond, however, was not a canine case and the manipulation was performed to feel what was inside, which included a brick-like object. But see U.S. v. Gwinn (manipulation and removal of bag for dog sniff was impermissible search), not cited in Bartelt.

Three justices dissented, arguing that Fourth Amendment seizure issues were properly raised, though not fully argued, and that the analysis in Ladeaux involved seizure principles. The dissent argued:

“I agree with Ladeaux. Under the facts presented in both Ladeaux and in this appeal, the police went further than the officers in Caballes: they ordered defendant to assist them in facilitating the canine sniff by demanding that she turn the vehicle to auxiliary power, close the windows and place the blowers on high to force the air from the inside of her truck to the outside of the vehicle. There also is no question that the officers demanded defendant's compliance in the midst of what was an already coercive environment, wherein defendant was confronted by two officers and a narcotics canine, and was seated in a vehicle which was parked in front of two police squad cars arranged in a “T” formation. Because the officers' actions subsequent to the initial stop unquestionably “communicated to a reasonable person that [she] was not free to decline the officers' requests or otherwise terminate the encounter”…, I conclude that the officer's order to defendant to comply with the set-up procedure constituted an additional seizure. Accordingly, the reasonableness of this additional seizure must be assessed.”

It is troubling that a driver could be asked to take actions to aid in a sniff, and it appears that requiring such participation would be better analyzed as a seizure rather than as part of a search. Not doing so, however, may say more about defense counsel’s briefing of the matter than how the law should ultimately read. Unlike Jardines, which I'll be discussing soon, I don't think this one is ready for the U.S. Supreme Court.

Sources: Illinois v. Bartelt, 2011 WL 1049788 (Ill. 2011), aff’g 384 Ill.App.3d 1028, 323 Ill.Dec. 715, 894 N.E.2d 482 (Ct. App. 2008); U.S. v. Ladeaux, 454 F.3d 1107 (10th Cir. 2006); Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005); U.S. v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); U.S. v. Viera, 644 F.2d 509 (5th Cir. 1981); U.S. v. Gwinn, 191 F.3d 874 (8th Cir. 2000); regarding manipulation of bags, see also U.S. v. Nicholson, 144 F.3d 632 (10th Cir. 1998); Bond v. U.S., 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000); Jardines v. Florida, Docket No. SC08-2101 (April 14, 2011).

It has been argued that air released from a car’s ventilation system might carry enough scent of the driver out of a car as to leave a trail that a trailing dog could follow. Buchanek v. City of Victoria, 2009 WL 500564 (S.D.Tex. 2009).