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).

Are Terrorist Threats Changing Constitutional Parameters of Police Behavior? Considering an Incident at the Minneapolis/St. Paul Airport

An opinion of a federal magistrate shows that narcotics detection dogs at airport screening must be deployed before a seizure of a passenger’s carry-on luggage has become unlawful under the Fourth Amendment. The facts of the case also show something about how TSA and airport police hand off cases to each other during screening procedures. Conducting a dog sniff during an initial search of the luggage at an inspection table would have been legal under the magistrate's analysis, but detaining the luggage and the passenger in a separate screening room without probable cause or reasonable suspicion meant that the subsequent sniff by the drug dog was fruit of the poisonous tree and had to be thrown out. Would the result have been the same had a bomb dog been used instead of a drug dog?

A Passenger with $90,000 in Cash. Johnny Chan was selected by an airline for heightened TSA screening on his boarding pass. Cosgrove was working at Security Checkpoint 5 at the Minneapolis/St. Paul International Airport on July 20, 2007. (The diagram from the airport's website shows the configuration of security checkpoints.) Chan’s belongings went through the X-ray machine and Chan walked through the metal detector. The X-ray operator told Cosgrove that there were three large opaque items in Chan’s bag. Chan was led to a screening table where he was frisked by Cosgrove in what the TSA calls a bulk item pat-down. Cosgrove searched Chan’s bag and discovered a black plastic garbage bag with three bundles of cash. Cosgrove asked Chan what the money was for and Chan said it was to buy copy equipment in Chicago. Cosgove called over his supervisor, Finch, because significant amounts of cash were considered unusual circumstances. So far, it appears there was nothing illegal about the procedures.

Finch told Cosgrove to return to his regular duties. Finch asked Chan what he was doing in Minneapolis. Chan said he had been looking at colleges with his daughter but according Finch was unable to name a single college they had visited. Another witness said that Chan had mentioned Concordia College and the court concluded that Chan’s answers had been adequate. Chan appeared nervous and was sweating during the questioning but the court apparently determined that this was not unusual under the circumstances.

Finch told Kohanek, the TSA supervisor on duty, about Chan, indicating he was not satisfied with Chan’s responses. Kohanek walked to Chan with two airport policemen. It was unclear who had called the airport police. Even thought the screening process was completed, Chan was escorted by the two officers into a private screening room, about 20 feet from the screening table. Chan was not told that he was free to leave. It was unclear if Chan’s boarding pass and ID had been returned to him. The magistrate found that the detention became illegal at this point. The purpose of the stop had been completed and the airport police “had neither probable cause nor even a reasonable articulable suspicion that the luggage contained contraband or evidence of a crime.” Chan had not been told he was free to leave and no reasonable person in his situation would have thought so. Arguably, however, Chan’s nervousness in the face of questioning and his inadequate answers, had the court accepted Finch’s version of events, could have justified further inquiry. Nervousness has been found by some courts to provide reasonable suspicion for additional detention during traffic stops and in other situations, allowing for a canine sniff.

Husby of the Airport Police Department spoke to Chan in the private security room until a K9 officer arrived with a dog. Chan was not asked if he would consent to having his luggage subjected to a dog sniff. Husby testified that it was normal procedure to have a narcotics dog smell large amounts of currency. The dog alerted to the cash and Chan was removed from the security checkpoint to the police operations center. (The dog’s alert was most likely to methyl benzoate, a substance in street cocaine. The canine evidence was not challenged by Chan and the reliability of the dog was not discussed in the opinion. Nor was it determined how long Chan had held the cash, which would be important in calculating whether the methyl benzoate got onto the cash while it was in Chan’s possession.) Chan was then told he was free to go but that his cash was being seized. By this time Chan had missed his flight to Chicago. Also about this time, Husby and other officers learned that Chan had an outstanding arrest warrant but the officers decided not to execute the warrant. The warrant was a felony arrest warrant for financial fraud.

The government contended that Chan voluntarily consented to the investigation into the facts surrounding the cash, but the court held that “any reasonable traveler in Mr. Chan’s circumstances would have perceived that he was not free to leave from the moment he and his luggage were seized by TSA Officer Cosgrove, until he was released after the APD refused to return his money to him after the dog sniff.” The magistrate concluded that the $90,000 seized from Chan was the fruit of an unlawful seizure of his luggage and an unlawful detention and the money had to be suppressed. Specifically, the luggage was unlawfully seized when the airport police took possession of it with neither probable cause nor reasonable suspicion. The magistrate stated:

"At the moment of seizure, the police knew only that Mr. Chan had $90,000 in U.S. Currency, that he made no effort to conceal, and that he was transporting to Chicago. Mr. Chan knew the amount of money and answered the officer's questions about what he intended to do with it. Until the dog alerted to the money, the police had found no drug related evidence on Chan's person, or in his luggage. While the police later learned that Mr. Chan had a criminal history, they did not know that until after the dog sniff…. Neither the TSA, nor the police officers were able to articulate a basis for believing the money carried by Mr. Chan was drug related. Their respective descriptions of why they continued to investigate the money rise no higher than the level of a 'hunch', which is insufficient to warrant an investigatory seizure of Mr. Chan's luggage."

The magistrate said that even assuming there was reasonable suspicion allowing continued detention, the length of the detention here exceeded Constitutional bounds of a permissible search and seizure. Had the police executed the outstanding warrant as soon as they knew of it, this might have provided a lawful basis to seize the cash incident to the arrest. U.S. v. $90,000 in United States Currency, 2009 WL 6327469 (D.Minn. 2009).

A Slightly Different Scenario. Let me change a few facts and discuss whether the result should be the same. Instead of financial fraud, suppose that the officials discover that the warrant was issued by a foreign country and may have involved providing financial support for terrorists. Also suppose that instead of a drug dog, the dog was a bomb dog and alerted to the cash. Some explosives contain highly volatile chemicals that could adhere to currency. (Admittedly, terrorists could more easily separate those handling explosives from those handling cash than is generally the case with cocaine on currency, where the currency is often received from cocaine users. I could get around such an objection by just stating that the dog alerted to a suitcase, rather than cash in it.)

It is obvious that the full body scans that are now so riling the air travel public would not be tolerated were their objective to find drugs. The threats of explosives on passengers or in luggage or cargo are so horrifying as to change the boundaries of police behavior, and I suspect, judicial perspectives. Chief Justice Warren, more than forty years ago in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), put the “threat of physical harm” to the officer involved and potentially others in the balance for determining whether the officer’s actions in a stop were reasonable. If the federal district court had found that the passenger’s nervousness justified detention for the sniff, then the seizure might have been approved. Would the court have favored the version of events argued by the government if the situation had involved possible terrorism? This would not result in a change of the letter of the law, but rather in a court’s tendencies in dealing with the facts of a case. Yet change it would be.

At Berkeley I took a seminar from the great scholar of ancient law, Professor David Daube. In one class Daube asked us why so many of the great works of Roman law dated not from the height of the Roman Empire, but rather from well into its decline. Was there something about legal reasoning that allowed it to flourish as a civilization neared its end? I don’t remember that Professor Daube really answered his question. It was more to make us think but this was decades before terrorism became part of daily life and fear. Now it strikes me that as a society becomes more paranoid when the enemy gets closer, the interpretation of rights is going to change in a reflexive effort to deal with the threat, particularly if the threat is invisible. It may be cloaked as a return to an ancient austerity, from a time when a different enemy was at the gates. Although I cannot say exactly how it will happen, it is obvious to me that cases involving terrorism are becoming a mechanism for restricting freedoms we Americans hold so dear.

For security reasons, some cases are deflected from public exposure in various ways. A case like my hypothetical, for instance, might have been dealt with by putting a homing device in the cash to follow the passenger’s subsequent movements, rather than an arrest. There would have been no case. Unfortunately, we live in interesting times.