Current Legal Issues in Traffic and Investigatory

Transcription

Current Legal Issues in
Traffic and Investigatory Stops
2009 Justice Court Spring Conference
Ken Wallentine
[email protected]
801-281-1207
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 was
even a seizure by the officer. If so, the second question is whether the seizure was
supported by adequate reasonable suspicion. An officer may stop a person when the
officer has reasonable suspicion to believe that the person has committed or is
committing or is attempting to commit a crime. United States v. Jones, 432 F.3d 34 (1st
Cir. 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 of
reasonable suspicion. “Articulating precisely what ‘reasonable suspicion’ means is not
possible. It is a commonsense, nontechnical conception that deals with the factual and
practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.” Illinois v. Gates, 462 U.S. 213 (1983). Reasonable suspicion is
substantially less than probable cause and considerably less than proof of wrongdoing
by preponderance of evidence. Immigration & Naturalization Service v. Delgado, 466
U.S. 210 (1984). Reasonable suspicion is always more than a simple “hunch” or “mere
suspicion.” United States v. Williams, 876 F.2d 1521 (11th Cir. 1989). Reasonable
suspicion must be particular; that is, it must be directed at a specific person in order to
detain 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 fact
appears to have an innocent and legitimate explanation, courts look at the totality of the
circumstances, 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 fact
that an event may have an innocent explanation does not necessarily defeat a
conclusion of reasonable suspicion. Cibula v. Driver and Motor Vehicle Services
Branch, 123 P.3d 382 (Or. App. 2005), cert. denied, 132 P.3d 28 (Or. 2006). Factors
that commonly lead to reasonable suspicion include:
• Time of day. Obviously, a person loitering outside a business late at night
when the business is closed is more suspicious than a person hanging around
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2009 KR W allentine all rights reserved. No reproduction without written license.
the front door when the business is open or is about to open. Bennett v. City of
Eastpointe, 410 F.3d 810 (6th Cir. 2005). Courts are generally more likely to find
reasonable suspicion in late-night and early-morning stops. Being in a
high-crime area late at night, without other indicators of criminal activity, may not
be 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 time
of 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 wearing
unusually 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 veteran
detective saw suspicious behavior, believed that a crime was about to occur,
and detained and frisked a suspect. An officer may, indeed must, apply
experience and training to determine whether conduct is “suspicious.” United
States v. Lujan, 188 F.3d 520 (10th Cir. 1999).
• Crimes in the area. The crime history of an area, particularly recently reported
criminal activity, is an important factor in assessing reasonable suspicion. State
v. Griffin, 61 P.3d 112 (Kan. App. 2003). There may also be correlation between
the type of crime (auto burglaries), the suspect (a person walking alone with
tools in his back pocket), and the conduct (walking through the aisles of a
parking lot) to further add to the reasonable suspicion. Mere presence in a
high-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 suspicious
than a person walking through a manufacturing business parking lot, particularly
if it is not a meal or break time at the manufacturing plant. If the area is fenced
and the property owner has posted trespass warnings, the presence of a person
in the area may be a more significant factor. Griffin v. Runyon, 2006 WL
1344818 (M.D. Ga. 2006) (climbing residential yard fence a factor in reasonable
suspicion calculation); State v. Little, 806 P.2d 749 (Wash. 1991) (breaching
posted trespass warnings contributes to reasonable suspicion).
• Known criminal history. State v. Thirty Thousand Six Hundred Sixty Dollars, 136
S.W.3d 392 (Tex. App. 2004). Any reasonable officer will be very interested in
the activity of a person previously convicted of burglary when the officer spots
the convicted burglar in a neighborhood other than the burglar’s. Similarly, a
registered sex of fender might arouse particular suspicions at a park or school
function. Knowledge of a criminal history by itself usually will not justify a
detention. United States v. Johnson, 427 F.3d 1053 (7th Cir. 2005).
• Tips. Information that a suspect is about to commit a crime, when sufficiently
detailed and reliable, can offer sufficient reasonable suspicion to detain. The
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more detailed, the more recent, and the more reliable the source, the stronger
the reasonable suspicion. Commonwealth v. Kelly, 180 S.W.3d 474 (Ky. 2005).
• Nervousness. Considered by itself, nervous behavior at the sight of law
enforcement officers is never enough to create reasonable suspicion to detain.
Many people who are violating no law become nervous around law enforcement
officers. Even so, an officer should not discount an averted gaze, changed
direction, 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 with
officers 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 illuminated
by police car spotlight); Wilson v. United States, 802 A.2d 367 (D.C. 2002)
(suspect twice walking rapidly away from different sets of officers within
moments held to justify stop). As repeatedly cited by the United States Supreme
Court, “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, by
itself, constitute reasonable suspicion to detain, it is a significant factor.
• Walking away from officers. A suspect’s attempt to walk away has been held to
be a valid factor supporting a finding of reasonable suspicion. United States v.
Holloway, 962 F.2d 451 (5th Cir. 1992); Lee v. Immigration and Naturalization
Service, 590 F.2d 497 (3d Cir. 1979).
• Wanted flyers. As long as the issuing officer or agency has reasonable
suspicion to issue a wanted flyer or radio broadcast, a person meeting the
description may be stopped and detained in order to determine identity and
involvement in the crime under investigation. Ornelas v. United States, 517 U.S.
690 (1996).
• Collective knowledge of multiple officers. “Officers are entitled to rely upon
information relayed to them by other officers in determining whether reasonable
suspicion 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 the
knowledge 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 or
non-moving violation, justifies a traffic stop. United States v. Botero-Ospina, 71 F.3d
783 (10th Cir. 1995). Even a minor parking violation may lead to a lawful traffic
detention. 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
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a suspended driver’s license or is the subject of an arrest warrant. Equipment violations
may justify a stop. The following are examples of equipment violation stops that have
been 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 (Utah
App.1996). License plate obscured or not visible from a reasonably safe
distance. 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 (Utah
App. 1990). Some courts have disallowed a stop on this basis where no specific
state 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, 959
P.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 cracked
windshields only where the officer could see that the crack was unsafe or
violated the equipment statute. United States v. Callarman, 273 F.3d 1284 (1oth
Cir. 2001) (traffic stop was allowed where officer had reasonable suspicion that
crack obstructed the driver’s vision), cert. denied, 535 U.S. 1072 (2002). Most
courts, however, allow a stop upon observation of any crack. United States v.
Cashman, 216 F.3d 582 (7th Cir. 2000) (cracked windshield provided basis for
stop even if the crack was not large enough to violate equipment statute); State
v. Vera, 996 P.2d 1246 (Ariz. App. 1999) (stop proper even though no Arizona
statute specifically prohibits cracks).
• Parking violation. An officer may detain a vehicle and driver to investigate a
parking violation even if a state treats parking violations as civil, rather than
criminal. The pretext stop doctrine established in Whren v. United States, 517
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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 have
reached similar conclusions, including a case where officers did not stop a
vehicle 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 other
violation 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 may
support a stop. Neal v. Commonwealth, 498 S.E.2d 422 (Va. 1998). Where the
weaving is not significant, and there is no other violation, there is generally not
sufficient 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 large
load of drugs suppressed when the only basis for the stop was a single incident
of 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 create
reasonable suspicion for stop). One federal court noted: “If failure to follow a
perfect vector down the highway were sufficient reason to suspect a person of
driving while impaired, a substantial portion of the public would be subject each
day 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. State
v. Guthmiller, 499 N.W.2d 590 (N.D. 1993). This may be particularly significant
at 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 light
turned 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 brief
delay in starting after a light turns green may not be sufficient reasonable
suspicion 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 not
sufficient 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 suspicion
found 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 below
speed limit may be impairment clue and gives basis to stop), aff’d, 744 P.2d 247
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(Ore. 1987); Sell v. State, 496 N.E.2d 799 (Ind. App. 1986) (reasonable
suspicion found when driver drove 15 to 20 miles per hour below the speed limit
for two to three minutes).
! Detention based on driver/passenger/owner status
In addition to an observed parking or moving violation, registration violation, or
equipment violation, the driver’s, owner’s or passenger’s identity may provide the basis
for the stop. Stops may also be justified by:
• Knowledge, or reasonable suspicion, that the driver or passenger is the subject
of 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 of
one 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); State
v. Decoteau, 681 N.W.2d 803 (N.D. 2004) (officer stopped same subject one
week 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 no
trouble invalidating a stop where the officer’s most recent contact with the driver
had been at least four months prior and there was no testimony of whether the
driver’s license was suspended at that time or how long prior to that stop the
officer knew that the license was suspended. United States v. Laughrin, 438
F.3d 1245 (10th Cir. 2006).
• Running a registration check and learning that the registered owner has a
suspended 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 been
issued for the registered owner, when the driver reasonably could be the
registered owner. State v. Penfield, 22 P.3d 293 (Wash. 2001) (stop must
terminate 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 no
expectation of privacy in a license plate number visible to the public. United
States 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).
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! Community caretaking
An officer may approach a person to check on the person’s welfare, without any
criminal investigative purpose, and the encounter is not an investigatory detention. For
example, if an officer sees a person slumped over the steering wheel of a car with the
engine running, the officer may check on the person’s welfare without creating a
detention. 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 not
create a detention when the purpose is to check on welfare. People v. Murray, 560
N.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 completely
unresponsive to questions about how he was doing. In an effort to find something that
might explain the driver’s odd condition and to find some identification, one of the
officers opened the glove box and found an illegally possessed handgun. The court
upheld the search under the community caretaker doctrine. Because there was no
Fourth Amendment violation, the gun could be admitted into evidence against the
driver. 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 officer
stopped behind Williams, activating emergency lights, and approached Williams to see
whether he needed help. Williams told the officer that his car had stalled and he did
not need a ride or help. As a matter of routine, the officer asked for Williams name and
DOB, which Williams willingly provided. The officer did not use commanding or
demanding language and was polite. The entire encounter lasted less than two
minutes and Williams went on his way. The officer ran a warrants check and
discovered that Williams had arrest warrants. The officer stopped Williams again and
asked Williams if he knew why he was back. Williams admitted having arrest warrants
and he told the officer that he was carrying a gun. The officer arrested Williams on the
warrants and for illegally carrying a concealed weapon. Williams claimed that the initial
detention was not supported by reasonable suspicion and the encounter was
involuntary.
The Delaware Supreme Court held that Williams was not detained. This holding was
based largely on the polite and non-demanding language used by the officer. Talk
nice, think mean is a principle of common decency and a principle that results in courts
giving greater deference to officers’ actions on the street. Alternatively, the court held
that if there was a seizure, the seizure was proper under the community caretaking
doctrine. Though this is the first time that the Delaware Supreme Court has ruled on
the basis of the community caretaking doctrine, the United States Supreme Court
acknowledged in Cady v. Dombrowski, 413 U.S. 433 (1973), that “police officers
frequently engage in what, for want of a better term, may be described as community
caretaking functions, totally divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute.”
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The Delaware court described the three factors necessary to justify a seizure under the
community caretaker doctrine. The large majority of states have adopted the doctrine
in their state court decisions and follow these, or similar, criteria. “The community
caretaker doctrine has three elements. First, if there are objective, specific and
articulable facts from which an experienced officer would suspect that a citizen is in
apparent peril, distress or need of assistance, the police officer may stop and
investigate for the purpose of assisting the person. Second, if the citizen is in need of
aid, then the officer may take appropriate action to render assistance or mitigate the
peril. Third, once, however, the officer is assured that the citizen is not in peril or is no
longer in need of assistance or that the peril has been mitigated, the caretaking
function is over and any further detention constitutes an unreasonable seizure unless
the officer has a warrant, or some exception to the warrant requirement applies, such
as a reasonable, articulable suspicion of criminal activity.” Asking for Williams’ name
and DOB was an essential part of creating a police report of the encounter. “Officers
are often required to make written reports of all encounters; an officer must also know
who he has assisted in case someone files a legal claim against him; and innocent
activity can turn out later to be criminal activity.” Most courts applying the community
caretaking doctrine have allowed the officer to ask for the name and other identifying
information of the persons contacted, particularly when the officer poses the request in
voluntary, 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., officers
received an anonymous phone tip that a young black man wearing a plaid shirt was
standing at a particular bus stop and that he had a concealed gun. Officers went to the
bus stop and saw three black males, one of whom wore a plaid shirt. Officers had no
information about criminal activity other than the anonymous call. The officers frisked
all three men and found a gun on the man with the plaid shirt. The evidence of the gun
was suppressed. “Unlike a tip from a known informant whose reputation can be
assessed 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 or
veracity.” Florida v. J.L., 529 U.S. 266 (2000).
An unnamed citizen informant who provides information face-to-face to officers is not
considered 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 same
duty to confirm the citizen informant’s information before acting on it. A citizen waved
over 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
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evaluate personally an informant’s mannerisms, expressions, and tone of voice and
thus, to assess the informant’s veracity more readily than can be done from a purely
anonymous 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. For
example, officers received an anonymous tip that a stolen tanker truck, containing
1,000 gallons of anhydrous ammonia, was located at Smith’s house. Anhydrous
ammonia is commonly used to replenish nitrogen in soil. It is extremely caustic and
burns skin severely on contact. Meth cooks use it in the so-called Nazi method of
methamphetamine manufacture. Officers had previously visited Smith’s house on
methamphetamine investigations. They could see the stolen tanker truck parked
approximately 75 feet from Smith’s house. The officers entered the property and
verified 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 a
woman. Smith denied knowing what was in the tanker. Officers conducted a protective
sweep and found a shotgun in a crawl space and they saw equipment that could be
used to manufacture methamphetamine. The rifle that they had seen earlier had been
hidden. The officers concluded that the concealed shotgun was the long gun that they
had seen through the window. Smith was convicted of manufacturing
methamphetamine. The trial court ruled the warrantless entry was justified by the
community caretaking doctrine, protective sweep doctrine and exigent circumstances.
He appealed, claiming that the warrantless entry and search was unlawful. The officers
used the evidence found in the protective sweep to obtain a search warrant. A second
search revealed a meth lab. Even though the initial tip was anonymous, the
Washington Supreme Court held that exigent circumstances justified the warrantless
entry. The chemical was extremely dangerous, the rifle had disappeared, and the
officers limited their search to a protective sweep. The court relied heavily on the
volatile nature of the anhydrous ammonia, and the officers’ testimony that they were
concerned 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 in
evaluating a stop based on an anonymous tip. Early on a Saturday morning, an
anonymous caller told a police dispatcher: “I would like to report a black male with a
silver hand gun. He was arguing with his, ah, girlfriend, or whatever.... They were
walking toward the 7-Eleven on Miami. He's tall. He's wearing a black jacket and blue
jean pants. He has the gun on a holster. And I seen him pull it out.” Responding
officers saw Wooden, the man matching the description, and a woman, though they
were not arguing. The officers frisked the man and found a gun with the serial number
filed off. Wooden challenged the stop and frisk based on the anonymous tip. The
court of appeals upheld the frisk. The caller stated how he knew that Wooden had a
gun; the caller saw it displayed during an argument. Unlike Florida v. J.L., there was
some urgency in investigating the anonymous report “J.L. dealt with a situation in
which there was no apparent need for haste, in which the caller did not describe how
he knew that J.L. was armed, and in which the tip was not recorded (so the police may
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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 known
should also be treated with greater deference. An anonymous caller reported that a
teenage male, Costa, had a gun in his waistband at a ball game. Responding officers
frisked the youth and found a cocked, loaded gun and several packets of cocaine. A
quick read of that limited information might suggest suppression under the decision of
Florida v. J. L. However, the Massachusetts Supreme Court upheld the detention and
frisk 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 was
anonymous, she stated that she was close enough to Costa that she thought he might
identify her as the caller when police arrived. She knew that the conversation was
being recorded, and knew her phone number would appear on the dispatch caller
identification screen. When the caller placed her anonymity at risk by calling from a
close proximity to Costa, her reliability was enhanced. Unlike the Florida case, the
caller also said that she had personally seen the gun. Commonwealth v. Reed, 862
N.E.2d 371 (Mass. 2007).
The greater the specificity of the anonymous tip, as well as a significant public safety
risk, the more deference that a court should give to the anonymous tip. An anonymous
caller reported that a light-skinned African-American male had “just pulled a gun” on
him and had mentioned a gang name. The caller said he felt the perpetrator “was
gonna shoot me right there at that minute.” The caller described the suspect as having
a bandage over his left hand, as though it had been broken, and said that he was in the
driver's seat of a gray Nissan Maxima parked on the north side of Jefferson Boulevard
at Ninth Avenue, near the recycling center. The caller refused to give his name, saying
that he was in fear. A few minutes later, the caller made a second call and identified
himself as “Drew.” He said that he had seen the Nissan again and wanted to correct
his description of the vehicle. It was black, not gray.
Officers arriving at the scene spotted a black Nissan Maxima in the precise location
described by the caller. There were three people in the car. Dolly was sitting in the
driver's seat and had cast on his left arm. Officers detained the occupants and found a
gun under the front seat. Dolly challenged the detention asserting a lack of reasonable
suspicion, citing Florida v. J.L.
The California Supreme Court overturned a lower appellate court to hold that Dolly’s
detention was lawful, based on the specificity of the information provided by the
anonymous caller. The caller’s report that the suspect had pointed the gun at him
created 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. The
court noted that callers are generally aware that 911 calls are recorded and are thus
deterred from making false reports. The caller’s fear that retaliation would follow if he
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gave his name, coupled with his mention of a gang name, gave a reasonable
explanation 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 driver
when the tipster provides a sufficient quantity and quality of information about the
vehicle and the reason for suspicion. When the tip is anonymous, some courts require
that 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 upholding
an arrest stemming from an anonymous tip with details of highly erratic driving by
comparing 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 cited
the “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 the
erratic driving, will justify a stop if the officer is able to confirm the details provided and
the stop occurs within a reasonable time of the anonymous report. After a citizen
reported the vehicle type, color, direction of travel, road number on which the vehicle
was traveling, and reported that the vehicle was swerving across lanes, an officer
stopped the vehicle before observing any erratic driving to confirm the suspicion of an
impaired driver. The court upheld the stop, noting that the “report of a possibly
intoxicated highway driver, ‘weaving all over the roadway,’ poses a far more grave and
immediate risk to the public than a report of mere passive gun possession” as reported
in J.L. v. Florida. People v. Wells, 136 P.3d 801 (Cal. 2006). Moreover, a traffic stop
imposes less embarrassment and intrusion than a stop and physical frisk on the
sidewalk. Many other courts have reached similar conclusions, even when officers saw
no erratic driving pattern. Kellems v. State, 842 N.E.2d 352 (Ind. 2006) (officer
confirmed 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 vehicle
make, 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 a
police officer makes a traffic stop, the driver of the car [and the passengers are] seized
within 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
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confirmed that the permanent registration was in process. After stopping the car, the
officer recognized the passenger as "one of the Brendlin brothers" and checked for
warrants. The officer found an parole violation arrest warrant for Bruce Brendlin. The
officer arrested Brendlin, searched him, and found drug evidence.
Focusing on the objective standard of whether a reasonable person would have
believed that he or she was free to leave, Justice Souter said that the Court's "intuitive
conclusion" lead it to conclude "that in these circumstances any reasonable passenger
would have understood the police officers to be exercising control to the point that no
one in the car was free to depart without police permission." A reasonable passenger
in a vehicle stopped by police would "expect that a police officer at the scene of a
crime, arrest, or investigation will not let people move around in ways that could
jeopardize his [or her] safety."
The Court noted its previous ruling in Maryland v. Wilson that permits officers to require
the driver and any passengers to remain in the car, or to get out of the car, solely to
preserve the officers' safety. Maryland v. Wilson, 519 U.S. 408 (1997). Justice Souter
explained that Brendlin's act of remaining seated in the car may well have signaled his
submission to police authority. Some courts have relied on Maryland v. Wilson to rule
that 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 to
require 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 of
appeal, had previously ruled that passengers were seized when a driver submits to a
traffic stop. Only the supreme courts in California, Colorado and Washington had
diverged from the majority view. Thus, the Brendlin decision does not dramatically alter
the legal landscape for most officers, but it does provide a note of caution, and still
leaves open several important questions about officers' interactions with passengers.
The decision did not even help Bruce Brendlin. The Supreme Court sent the case back
to California to decide whether Brendlin's status as a parole fugitive impacts his
standing to challenge the admittedly-improper stop. The California court ruled in favor
of the prosecution and Brendlin went off to prison.
! Identifying passengers
Some commentators wrongly suggest that officers cannot even ask passengers' names
and can never request identification documents. One court relied on the Supreme
Court decision in Muehler v. Mena to establish the bright line rule that an officer may
ask a passenger for identifying information. United States v. Hernandez, 418 F.3d
1206 (11th Cir. 2005) ("arguments that the trooper asked questions unrelated to either
officer safety, the speeding offense, or processing the citation are not determinative of
our evaluation of the constitutionality of the seizure here. We are to look only at the
duration of the seizure given all the circumstances: was it for an unreasonable time?").
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In Muehler v. Mena, 544 U.S. 93 (2005), the Supreme Court held that questioning
alone does not constitute a “seizure.”
When an officer uses a friendly, conversation tone (talk nice, think mean!) to request
passenger identification, most courts rule that the request is voluntary and requires no
reasonable 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 identification
based 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 for
his identification and Harris produced a state ID card. The officer conducted a
computer check and arrested Harris for a warrant. The search incident to arrest
revealed cocaine and drug paraphernalia in Harris’s jacket pocket. The Illinois
Supreme Court initially ruled the check of Harris’s identification was improper. The
prosecution appealed to the U.S. Supreme Court, which overturned the Illinois decision
and directed that the Illinois court reconsider the case in light of Illinois v. Caballes, 543
U.S. 405 (2005). The Illinois Supreme Court framed the question before it as: “when a
person is lawfully seized, but the police lack individualized reasonable suspicion, may
the officer request that the person provide identification and then use that information
to conduct a warrant check?” The court ruled that, unless the check unreasonably
prolongs the stop, an officer may ask for a passenger’s identification and may run a
warrants 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 during
traffic stops. Many courts had rigidly held to principles drawn from Terry v. Ohio and
ruled that any questioning beyond the purpose of the traffic stop or requests for
consent to search must be based on reasonable suspicion of criminal activity. Caballes
established that officers may conduct a suspicionless canine sniff at a traffic stop
during the stop, as long as the sniff does not unreasonably prolong the stop. Muehler
clarified that questioning during an otherwise lawful seizure does not constitute a
distinct 4th amendment event or further seizure and such questioning does not require
reasonable suspicion. The Illinois court considered these two cases and overruled a
prior case that required officers to have reasonable suspicion to ask questions
unrelated to the initial purpose of the traffic stop. The court then held that drivers and
passengers 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 on
passengers that does not unreasonably extend the traffic stop is permissible.
Harris argued that he did not voluntarily produce his identification. Acknowledging the
recent case of Brendlin v. California, the court held that Harris’s claim must address the
question of "whether an innocent person in defendant’s circumstances would have felt
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free to decline to produce his identification for the officer." In other words, would a
reasonable person believe that he or she could decline the officer’s request for
identification documents or identifying statements? The court opined that a reasonable
person in Harris’s position would feel free to refuse to identify himself, even though he
knew that the driver was being arrested.
Harris could have asked the officer the purpose of the identification request. The
officer testified that he intended to verify whether Harris could drive the car once the
driver was arrested. Other possible explanations to such a request might include the
desire to list witnesses’ names on the arrest report, to know with whom the officer was
dealing, or to determine the relationship of the passengers to the driver or to the car
owner. This case emphasizes the legal consequence of using the language of consent
and 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 court
cases that lead some courts, including Utah appellate courts, to require some measure
of suspicion before asking about weapons, drugs or alcohol in the car, or before asking
for consent to search a car during a lawful traffic stop. In Arizona v. Johnson, the
Supreme Court recently held that the topic of questions asked during a traffic stop is
not relevant to the evaluation of the lawfulness of the stop unless the questioning
impermissibly expands the duration of the detention.
In Johnson, an officer stopped a car for a traffic violation in a Tucson neighborhood
known for gang activity. One officer dealt with Johnson, the back-seat passenger,
whose behavior and clothing prompted questioning. The officer learned that Johnson
was from a town with a Crips gang and that he had been in prison. The officer asked
Johnson to get out of the car, where the other occupants could not hear them, in order
to question him about his gang affiliation. The officer suspected that Johnson was
armed and frisked him, feeling a gun. A further search revealed that he was holding
marijuana. Johnson began to struggle, and the officer handcuffed him. Johnson was
charged with possession of drugs and possession of a weapon by felon.
The Arizona Court of Appeals held that Johnson was lawfully seized during the
encounter by virtue of being a passenger in a car that was lawfully stopped for an
insurance violation. The Arizona court also held that the initial encounter between the
officer and Johnson was voluntary. The court stated that once the officer began to
question Johnson on a matter unrelated to the traffic stop, the frisk authority ceased,
unless there was independent reasonable suspicion that Johnson had committed, was
committing or was about to commit, a crime. Various courts have reached different
results on the question of whether officers may move from a voluntary encounter to a
frisk if the officer develops reasonable suspicion to believe that the suspect is armed
and dangerous.
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In Terry v. Ohio, 391 U.S. 1 (1968), the Supreme Court ruled that an officer may
conduct a frisk when two conditions are present. First, the investigatory stop must be
lawful, based on reasonable suspicion that the person detained is committing, is about
to commit, or has committed, a crime. Second, to move from a stop to a frisk, the
officer must reasonably suspect that the person stopped is armed and dangerous. Two
years ago, in Brendlin v. California, 551 U.S. 249 (2007), the Supreme Court held that a
traffic stop constitutes a seizure of a vehicle’s passengers as well as the driver. The
temporary seizure of the vehicle occupants normally remains reasonable for the
duration of the stop. The Court held that Johnson remained lawfully seized for the
duration of the traffic stop. Thus, the first requirement of the Terry v. Ohio frisk was
satisfied. Because the officer had reasonable suspicion (an issue assumed, though not
discussed, by the lower court), the frisk was lawful and the gun and drugs were lawfully
seized.
Four years ago, in Muehler v. Mena, 544 U.S. 93 (2005), the Supreme Court held that
mere police questioning on a topic unrelated to the initial reason for an otherwise lawful
investigatory 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 a
home. 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), the
court of appeals agreed with several other circuit courts of appeals that, based of
Muehler, 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 important
question. The Court held: “An officer's inquiries into matters unrelated to the
justification for the traffic stop, this Court has made plain, do not convert the
encounter into something other than a lawful seizure, so long as those inquiries
do not measurably extend the duration of the stop.” Arizona v. Johnson, 129 S.Ct.
781 (2009).
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Current Legal Issues in Traffic and Investigatory

Transcription

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