TRAFFIC STOPS, CONSENT, AND THE EFFECT OF QUESTIONS UNRELATED TO THE STOP

[pftraining_in]

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[FONT=&quot]PATC / LLRMI Law Enforcement Legal Update by Brian S. Batterton, J.D.[/FONT][FONT=&quot]
[FONT=&quot]2nd Circuit, U.S. v. Harrison[/FONT]
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[/FONT][FONT=&quot]TRAFFIC STOPS, CONSENT, AND THE EFFECT OF QUESTIONS UNRELATED TO THE STOP


[/FONT][FONT=&quot]READ FULL ARTICLE AND DOWNLOAD PRINTABLE COPY ONLINE HERE [/FONT]
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[FONT=&quot]©2010 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute, (llrmi.com),[/FONT][FONT=&quot] 8th Cir. [FONT=&quot]United States v. Harrison[/FONT], Decided May 26, 2010. The Second Circuit Court of Appeals recently decided the [FONT=&quot]United States v. Harrison, [/FONT] which serves as an excellent review of the rules that relate to the questioning of vehicle occupants during a traffic stop. [/FONT]
[FONT=&quot]The facts of [FONT=&quot]Harrison [/FONT]are as follows:[/FONT]
[FONT=&quot]Harrison was a backseat passenger in a car that was stopped on the night of November 2, 2006, because a license plate light was out. Marcos Villegas was driving, Ronisha McBride was the front passenger, and Lamar Watson was in the back with Harrison. Villegas pulled over to the highway shoulder. To avoid being hit by traffic, New York State Trooper Joseph Krywalski approached the passenger side, asked for the driver's license and registration, and ordered Villegas to step around to the back. As Villegas complied, Krywalski recognized him from two prior traffic stops in which Krywalski found drugs in Villegas's car (marijuana on the first stop, marijuana and cocaine on the second).[/FONT]
[FONT=&quot]Standing at the back of the car, Krywalski asked Villegas where he was going, why, and with whom. Villegas responded that they were all returning to Utica from a wedding rehearsal in Rochester. Krywalski then went back to the three passengers to see if they would corroborate Villegas's account. McBride said that she and Villegas had traveled alone to Rochester, visited friends, picked up Harrison and Watson, and were returning together to Utica; nothing special took them to Rochester.[/FONT]
[FONT=&quot]Krywalski queried Villegas again, who stuck to his story, and refused consent to search the vehicle. As they spoke (two to three minutes after the stop began), Trooper Timothy Ryan arrived at the scene. Two to three minutes after that, Ryan shined his flashlight into the car and spotted a marijuana cigarette on the floor next to McBride's foot. Krywalski arrested Villegas and McBride, ordered Watson and Harrison out of the car, and found a gun inside the center console. Krywalski directed the arrest of Harrison and Watson.[/FONT]
[FONT=&quot]Everyone went to the police station. There, Krywalski saw Harrison shake his right leg until a bag of crack fell out of his pants.[/FONT]
[FONT=&quot]Harrison was charged in federal court with possession with intent to distribute 50 grams or more of cocaine base (crack), in violation of [FONT=&quot]21 U.S.C. § 841(a)(1), (b)(1)(A).[/FONT] The district court denied Harrison's pre-trial motion to suppress the crack as the result of an unlawful stop; the jury convicted; and the district court sentenced him to 240 months' imprisonment. [ii] [/FONT]
[FONT=&quot]Harrison appealed the denial his motion to suppress to the Second Circuit Court of Appeals. He admitted that the original traffic stop was lawful; however, he argued that the questions unrelated to the purpose of the stop, which was a tag light violation, unreasonably prolonged the stop such that it became an unlawful detention. As such, he argued the drugs seized as a result of the unlawful detention should be suppressed.[/FONT]
[FONT=&quot]The court then noted four rules that pertain to detentions and questioning during traffic stops. The rules are as follows:[/FONT]

• [FONT=&quot][E]ven a seizure that is lawful at its inception can violate the [/FONT][FONT=&quot]Fourth Amendment[/FONT][FONT=&quot] if its manner of execution unreasonably Infringes interests protected by the [/FONT][FONT=&quot]Constitution. [iii][/FONT][FONT=&quot][/FONT]

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• [FONT=&quot]As applied to a traffic stop, [a] seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. [iv] [/FONT][FONT=&quot][/FONT]

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• [FONT=&quot][A]n officer's inquiries into matters unrelated to the justification for the traffic stop . . . 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 [v] [/FONT][FONT=&quot][/FONT]

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• [FONT=&quot]When a traffic stop is supported by probable cause, the occupants of the car have no right to be released the instant the steps to check license, registration, and outstanding warrants, and to write a ticket, had been completed. . . [T]he fourth amendment does not require the release of a person arrested on probable cause at the earliest moment that step can be accomplished. What the Constitution requires is that the entire process remain reasonable. [vi] [/FONT][FONT=&quot][/FONT]

[FONT=&quot]Since Harrison conceded that the initial traffic stop was lawful, the only issue for the court to consider was whether Trooper Krywalski's questioning of the driver and passengers on matters unrelated to the purpose of the stop [FONT=&quot]measurably extended the duration of the stop[/FONT] such as to render the stop unconstitutional.[/FONT]
[FONT=&quot]Facts the court considered relevant to this issue were that the trooper had all the information he needed to issue the traffic citation before he approached the vehicle passengers to attempt to verify the driver's story. Also relevant was the fact that, up until the time of the arrest, the traffic stop had only lasted approximately 5-6 minutes; the unrelated questions were included in that short, 5-6 minute period of time.[/FONT]
[FONT=&quot]The Second Circuit then examined case law from other federal circuits relating to reasonable periods of time for traffic stops. The court first noted a case from the Ninth Circuit Court of Appeals where the court held that a 14-minute period of questioning was not unlawful because "officers do not need reasonable suspicion to ask questions unrelated to the purpose of an initially lawful stop [where the questioning] did not unreasonably prolong the duration of the stop." [vii] Additionally, the court noted a case from the Eleventh Circuit Court of Appeals which stated:[/FONT]
[FONT=&quot]Where at its inception a traffic stop is a valid one for a violation of the law, we doubt that a resultant seizure of no more than seventeen minutes can ever be unconstitutional on account of its duration: the detention is too short ... Even if seventeen minutes is some minutes longer than the norm, we question whether the [FONT=&quot]Fourth Amendment's[/FONT] prohibition of unreasonable seizures is concerned with such trifling amounts of time, when the seizure was caused at the outset by an apparent violation of the law. Of trifles the law does not concern itself. [viii] [/FONT]
[FONT=&quot]Since the court found that periods of time longer than 5-6 minutes have been held lawful detentions, the court held that Trooper Krywalski's additional questioning of the vehicle occupants did not prolong the stop so as to render it unconstitutional. As such, the denial of the motion to suppress was affirmed.[/FONT]
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[FONT=&quot]Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]CITATIONS:[/FONT][FONT=&quot][/FONT]
[FONT=&quot] No. 09-2907-cr, 2010 U.S. App. LEXIS 10694 (2nd Cir. Decided May 26, 2010) [/FONT]
[FONT=&quot][ii] [FONT=&quot]Id[/FONT]. at 2-3[/FONT]
[FONT=&quot][iii] [FONT=&quot]Id[/FONT]. at 5 (quoting [FONT=&quot]Illinois v. Caballes[/FONT], 543 U.S. 405, 407, (2005))[/FONT]
[FONT=&quot][iv][FONT=&quot] Id[/FONT]. (quoting [FONT=&quot]Caballes[/FONT], 543 U.S. at 407)[/FONT]
[FONT=&quot][v][FONT=&quot] Id[/FONT]. (quoting [FONT=&quot]Arizona v. Johnson[/FONT], 129 S. Ct. 781, 788, (2009))[/FONT]
[FONT=&quot][vi][FONT=&quot] Id[/FONT]. (quoting [FONT=&quot]United States v. Childs[/FONT], 277 F.3d 947, 953-54 (7th Cir. 2002) (in banc))[/FONT]
[FONT=&quot][vii][FONT=&quot] Id.[/FONT] at 6 (quoting [FONT=&quot]United States v. Turvin[/FONT], 517 F.3d 1097, 1103-04 (9th Cir. 2008))[/FONT]
[FONT=&quot][viii][FONT=&quot] Id[/FONT]. at 6-7 (quoting [FONT=&quot]United States v. Hernandez[/FONT], 418 F.3d 1206, 1212 n.7 (11th Cir. 2005))[/FONT]
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[451_Detonics]

And?
Was there a point to posting this I am missing?

 

[SSGSAD]

Every time I get stopped, (which isn't often), I am asked if I've been drinking, where I am going, and I have to show my DL., I thought that was not allowed....(Az., Law...)...

 

[jsgolfman]

240 months?

 

[Robert Richardson]

And?
Was there a point to posting this I am missing?

My question also.

 

[Dawall]

Personally, I do not feel sorry for them.

 

[Fargo]

The point dealt with explaining a particular point to search/seizure law.

I would caution that it is my understanding that the Indiana Supreme Court, applying Indiana's constitution, tolerates a MUCH shorter amount of time before a stop is "unduly prolonged" than the federal courts.

I would be very surprised if 5-6 minutes was considered constitutional in Indiana.

Best,


Joe

 

[rockydog]

I'm missing it also? I read that entire thing thinking there was going to be some twist like the driver was banging the officers wife or the entire thing was going to hinge on the fact the officer had busted the same guy two other times for drugs and knew the dipstick would be packing and was "profiling". (how unfair is that )

 

[jsharmon7]

Thanks for sharing, MK18. I'm sort of confused as to how people are missing the point of posting this. As much ranting and raving goes on in these forums about traffic stops and answering questions from the police and protecting your rights, what's to misunderstand? Maybe the ones who don't understand aren't the ones who are overly concerned about this stuff, but many people on this site apparently are concerned. Thanks again.

 

[Kirk Freeman]

I would be very surprised if 5-6 minutes was considered constitutional in Indiana.

That's fact sensitive: how much dope was found after we all sat around waiting for Officer Chompy (the dog).

240 months?

It's a federal case. The USSG matrix (it's a table of offenses on the Y and criminal categories on the X) reads in months.

 

[latigo]

How to Flex Your Rights During Police Encounters

 

[pftraining_in]

Thanks for sharing, MK18. I'm sort of confused as to how people are missing the point of posting this. As much ranting and raving goes on in these forums about traffic stops and answering questions from the police and protecting your rights, what's to misunderstand? Maybe the ones who don't understand aren't the ones who are overly concerned about this stuff, but many people on this site apparently are concerned. Thanks again.

My reason exactly.

 

[downzero]

For anyone who is wondering, the moral of the story is to shut up, don't answer any questions not related to the specific reason for which you are stopped, and go along on your merry way with your crack and your roach, rather than go to jail.

It's a simple process, really...

Disclaimer: I am not a lawyer or your mother, so I don't give legal advice. I do, however, think that shutting your mouth should be common sense when officer friendly has you and your friends pulled over.

 

[Fargo]

That's fact sensitive: how much dope was found after we all sat around waiting for Officer Chompy (the dog).

This is the latest case out of Indiana that I know of. The Ct. of Appeals seems to make a brightline rule that there can be virtually no delay after the stop is over.

http://www.ai.org/judiciary/opinions/pdf/04271001mgr.pdf

As noted above, the record does not show how much time elapsed between Trooper Buell‟s call for the assisting unit and Trooper Wade‟s arrival with his canine. After Trooper Wade‟s arrival, but before he ran the canine around Bush‟s car, both officers first effected the arrest of the passenger. Then Trooper Buell dealt with the passenger by explaining to him why he was under arrest. Trooper Buell testified that at the time the canine began circling the car, he did not have any reason to detain Bush or place him under arrest. Thus, the purpose of the traffic stop must have been complete as to Bush, otherwise there would have been an ongoing reason for his detention. Yet the record does not reflect Bush was ever told he was free to leave. Because the State failed to show 9
that either the canine sniff was conducted while the purpose of the traffic stop was ongoing or the canine sniff did not materially increase the duration of the stop, we conclude the canine sniff was not justified as an incident of the stop.

Best,


Joe

 

[BIGE7.62]

Im lost also ,what is the point of the thread

 

[308jake]

Don't smoke crack.

 

[IndyMonkey]

Don't smoke crack.