SCOTUS Prohibits Officers from Extending Traffic Stop to Search Vehicles–Curbs Racial Profiling

The Supreme Court of the United States just took a huge step toward curbing racial profiling when it issued a decision holding that police cannot extend a routine traffic stop to search a vehicle, absent reasonable suspicion. Rodriguez v. United States, 575 U.S. ___ (2015).  Illegal searches have traditionally had a disproportionate impact on non-white drivers.  Although searches conducted without reasonable suspicion have always been illegal under the Fourth Amendment on paper, courts across the country have gradually whittled away the protection of the Fourth Amendment by creating a number of exceptions.  One of the main exceptions courts have used to justify an illegal search is to determine that the search was a “de minimis” intrusion on the driver, or in other words, that the search was reasonable because it lasted only a few minutes.

The decision of the Supreme Court in Rodriguez held that a brief seven or eight minute detention is not a “de minimis” intrusion, providing a clear limit on what courts can rule is a “de minimis” intrusion.  The Rodriguez decision may help to curb racial profiling because it will reduce the number of illegal searches, much less the convictions that result from the illegal searches–both of which are known to disproportionately impact non-white drivers.

In Rodriguez v. United States, an officer stopped Dennys Rodriguez for driving on a highway shoulder in violation of Nebraska traffic law.  After the officer check Rodriguez’ driver’s license and issued him a warning, the officer asked Rodriguez for permission to search his vehicle.  Rodriguez refused to consent to the search, so the officer detained Rodriguez until a second officer arrived. When the second officer arrived, the first officer retrieved his dog and conducted the search.  The dog alerted the officer to methamphetamine and Rodriguez was arrested for possession of methamphetamine.  Only seven or eight minutes elapsed from the time the officer issued the written warning until the dog alerted the officer to the drugs.

Rodriguez was charged in federal court and sought to dismiss the case based on a Fourth Amendment violation of illegal search and seizure.  Rodriguez’ motion to suppress the evidence was denied on the basis that a seven or eight minute intrusion was “de minimis” and not enough to constitute an illegal search.  He pleaded guilty to federal drug charges and was sentenced to five years in prison.  However, the Supreme Court overturned his conviction on the basis that being detained for seven or eight minutes so that officers could search his vehicle, without reasonable suspicion, was not a “de minimus” intrusion on his privacy.

The Court reasoned that the purpose of a routine traffic stop is to address the traffic violation that warranted the stop, and the duration of the stop is limited to the steps necessary to address the traffic violation along with any attendant safety concerns. Beyond determining whether to issue a traffic ticket, an officer’s mission during a traffic stop typically includes checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.  Investigations beyond that connected with the traffic violation are allowed under the Fourth Amendment only if they do not go beyond the time reasonably required to complete the mission of the traffic stop.

The Court determined that a dog sniff is not fairly characterized as part of the officer’s traffic mission and goes beyond what the Fourth Amendment would tolerate as a “de minimis” extension of time.  The Court held:

A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.” Rodriguez v. United States, 575 U.S. ___, No. 12-9972 at 1 (2015) (internal citations omitted).

We should note that if Rodriguez had consented to the search during the stop, he would not have been able to suppress the evidence and his conviction would not have been overturned.  In one of our previous posts, we recommended that you never, ever, consent to a search of your vehicle, regardless of what an officer tells you.  The Rodriguez case here is a perfect example of why you should always refuse a search.

Read the full decision here Rodriguez v. United States.

Police may trick you into giving permission to search your vehicle. Don’t give them permission.

In State v. Wagner, 2014AP842-CR (2015), a police officer pulled over David Wagner because he had multiple items hanging from his rear view mirror.  The officer saw Wagner moving around in a manner that led the officer to believe Wagner may have a weapon.  The officer asked Wagner to exit the vehicle, and Wagner complied.

After Wagner exited the vehicle, the officer told Wagner “I have permission to search this car. I’m also going to ask you what do you have on you that you shouldn’t have?” When Wagner responded “nothing,” the officer said, “so, you don’t mind if I search you, right?”  Believing that the officer had permission to search his vehicle regardless of his consent because the officer said “I have permission to search this car,” Wagner replied “go ahead.”

The officer conducted a search of the vehicle and found paraphernalia used to smoke marijuana.  Wagner was arrested and charged with possession of paraphernalia.

Wagner sought to suppress the evidence based on the theory that the search of his vehicle was illegal.  Wagner argued that the officer misstated the law and tricked Wagner into giving consent to search.  The question before the Court was whether the officer’s statement that he had permission to search Wagner’s vehicle led Wagner to believe that he could not object to a search and had to acquiesce to the officer’s authority?

The Court of Appeals held that Wagner voluntarily consented to the search, and was not merely “acquiescing to an unlawful assertion of police authority.”  Although the Court acknowledged that the officer misstated the law by claiming to have permission to search, the Court held that the Officer’s follow-up question “you don’t mind if I search” gave Wagner a ‘choice’.  The Court reasoned as follows:

“The officers were telling him that they had the right to search his car. What happened after that message was told to him in the form of a question:  ‘So you don’t mind if I search you, right?,’ which was, we agree, temporally tied to the message that the police had the authority to search the car. But, it was still in the form of a question. It did not convey the impression that he had no real choice in the matter. Quite the opposite. Wagner had to know that, despite the knowledge that the officers had the right to search his car, they were nonetheless asking him for permission to search his person. In that light, we are convinced that Wagner could have refused if he had wanted. State v. Wagner, 2014AP842-CR at ¶12.

The lesson from this case is simple:  Do not give an officer consent to search you, your vehicle or your home regardless of what they tell you.  If you deny permission to search, the officer may: (1) go away without conducting a search, (2) take the time to get a search warrant, or (3) conduct a search without a warrant.  Regardless of whether the officer goes ahead with the search, your continued denial of consent preserves your right to challenge the legality of the search in court and have your case dismissed.  However, if you give permission for the officer to conduct a search at any time, then you waive your right to challenge the legality of the search in court.

Police can legally stop a vehicle for violating laws that do not exist

A police officer can legally initiate a traffic stop based on a law that does not exist, as long as the officer’s mistaken belief that a law was broken was ‘objectively’ reasonable.  That might sound odd, but it’s what the Supreme Court of the United States decided in Heien v. North Carolina, 135 S. Ct. 530 (2014).

Under the 4th Amendment to the United States Constitution, the general rule is that a police officer must have reasonable suspicion to initiate a traffic stop.  In order to have reasonable suspicion, the officer must have specific and articulable facts to give the officer a suspicion that a crime is being committed.  If a police officer does not have reasonable suspicion to initiate a traffic stop and then later arrests a defendant for OWI, a drug offense, a firearms offense or any other type of crime, all of the evidence must be suppressed and the defendant’s case dismissed.  At least, that’s how it is supposed to work.

In Heien v. North Carolina, Sergeant Matt Darisse was following a vehicle and noticed that only one of the vehicle’s brake lights was working, so he pulled the driver over. While issuing a warning ticket for the broken brake light, Sergeant Darisse became suspicious of the actions of the two occupants and their answers to his questions. Heien, the car’s owner, gave Sergeant Darisse consent to search the vehicle. Sergeant Darisse found cocaine, and Heien was arrested and charged with attempted trafficking.

The problem with Seargeant Darisse’s stop was that North Carolina requires that a car be “equipped with a stop lamp.”  North Carolina Statutes requires only a single lamp.  Because Heien’s vehicle had a working stop lamp, Heien was not committing an offense and the officer had no objective basis to initiate the traffic stop.  The North Carolina Court of Appeals held that the justification for the stop was objectively unreasonable and stopping the car violated the 4th Amendment to the United States Constitution.

But not so fast.  The North Carolina Supreme Court reversed the North Carolina Court of Appeals and held that, even assuming no violation of state law had occurred, Sergeant Darisse’s mistaken understanding of the law was reasonable, and thus the stop was valid.  The Supreme Court sided with the State Supreme Court and held that Officers do not violate the 4th Amendment to the United States Constitution if they pull a driver over for an ‘objectively’ reasonable mistake of the law. Heien, 135 S. Ct. at 539-540.

Police officers were already allowed to pull a driver over based on a mistake of fact. See United States v. Miguel, 368 F.3d 1150 (9th Cir. 2004) (Validating stop when officer pulled over vehicle believing that the registration had expired when in fact registration was current).  Now, officers can initiate a traffic stop against a completely innocent driver for violating a law that does not exist.

Police can legally break down door if they hear shuffling inside

If police have probable cause to believe there are drugs in your apartment, pound on your door, yell “Milwaukee police” and then hear sounds of movement, they may bust down your door and conduct a “protective sweep.”

A defendant in State of Wisconsin v. Bridges, 2013AP350 (Wis. Ct. App. 2015), did not contest that police had probable cause to believe he had drugs in his apartment. But he objected to their entry when they broke down the door after they heard shuffling inside the apartment and found drugs and guns during a search.  He argued that the police could not rely on the “exigent” circumstances except to the 4th Amendment because the police created the exigency by pounding on the door.  The court disagreed:

The actions of those behind the door and how they choose to respond to the “knock and announce” was what created the exigent circumstances, not the police action of knocking. ¶13.

Here, the police lawfully entered the apartment building when the tenant from apartment two let them into the building.  The police chose to do a “knock and talk” at apartment one which is a proper investigative technique.  When doing so, the police heard the occupants moving, shuffling, and something that sounded like things were being moved around.  This caused the police to reasonably believe that the occupants were destroying evidence.  Drugs, especially ecstasy, can be quickly and easily destroyed.  The police actions here did not create the exigent circumstances.  Rather, the occupants’ response to the knocking did. ¶14.

The lesson to be learned is this:  if you have drugs in your apartment and the police are pounding on the door, either stay still or move very, very quietly.

Wisconsin Supreme Court clarifies legality of warrantless blood draws for OWI suspects

The Supreme Court of Wisconsin addressed two important questions surrounding the legality of warrantless blood draws for defendants suspected of driving under the influence.

First, the Court decided that a warrantless blood draw made prior to the decision of the United State’s Supreme Court in Missouri v. McNeely is constitutional because the officer was relying on a good faith understanding of the law at the time. State v. Cassius A. Foster, 2014 WI 131 at ¶58, 12/26/14.  This is commonly known as the “good faith” exception to an otherwise illegal search and seizure.  As a result, defendants who have been subjected to a warrantless blood draw prior to the Missouri v. McNeely decision are out of luck.

The Court also clarified whether the dissipation of blood alcohol concentration over time may satisfy the “exigent circumstances” exception so that an officer can perform a warrantless blood draw.  The Court held that “exigent circumstances justify a warrantless blood draw if delaying the blood draw would ‘significantly undermin[e] [its] efficacy.'” State v. Michael R. Tullberg, 2014 WI 134 at ¶50, 12/26/14.  As a result, it appears that the Court is leaning toward justifying any warrantless blood draw because the dissipation of alcohol over time ‘would significantly undermine the tests efficacy’ if it is not done promptly.