It appears some members of law enforcement are coming up with creative interpretations of the Supreme Court’s Rodriguez decision. The decision said that officers could not extend traffic stops for unrelated purposes. When the objective of the traffic stop is complete, the detainment ends and the driver is free to go, no matter how much an officer might want to seek consent for a vehicle search or run a dog around the outside of it.
What the court never said is that officers could violate citizens’ Fourth Amendment rights as long as they were quick about it. But that seems to be the conclusion some are drawing. A Kentucky Appeals Court decision [PDF] drives the Supreme Court’s point home. The key word in the Supreme Court’s phrase “unnecessarily prolong” isn’t “prolong,” but “unnecessarily.” (via FourthAmendment.com)
Damion Lane ran a stop sign and was pulled over by officers. As they approached the car, he appeared to be fumbling with something. Officers ordered him out of the car, cuffed and searched him (for officer safety, according to the officers). While this was happening, an officer ran a K-9 unit around Lane’s vehicle. The dog alerted on the car but nothing was found. The officer searching Lane did come across some cocaine in Lane’s pants pocket.
Lane moved to suppress evidence as being the result of an unconstitutional search. The state argued that the officers did have reasonable suspicion based on the totality of the circumstances, citing the “fumbling” movement in the car and Lane’s attempt to reach into his pocket while in the process of being cuffed. Also the usual stuff: dark outside, “high crime neighborhood.”
The state responded to the challenge of the evidence by pointing out the stop had not been “unreasonably prolonged.” This is true. The drug sniff occurred during Lane’s cuffing and conversation with the other officer. But that’s not what’s important.
A dog sniff does not have “the same close connection to roadway safety as the ordinary inquiries,” thus it “is not fairly characterized as part of the officer’s traffic mission.” Id. Because a dog sniff is not part of the ordinary inquiries, its inclusion in the traffic stop procedures cannot extend the time period for the stop, or, if it does, the dog sniff must have a causal relationship to the stop. As the Kentucky Supreme Court phrased the inquiry, “The ‘key question’ is not whether the duration of Appellant’s roadside detention was unreasonable; rather, it is whether the sniff search was related to the purpose for which Appellant was stopped[.]
There’s no free pass for violating rights so fast the arrestee barely knows they’ve been violated. And even though it would appear there was no “prolongment” of the stop, the use of the drug dog did actually make the stop longer.
Officer Merrick could have been attending to the “ordinary inquiries” – i.e., running Lane’s license and registration – or he could have been writing the traffic violation ticket during the time that he was having K9 Bowie sniff the vehicle.
The attempt to salvage claims of reasonable suspicion are dismantled by the court as well, which finds that taking a Han Solo-esque approach to crime-fighting tends to generate suspicion that is hardly “reasonable,” much less articulable.
Here, any suspicion about drug activity from Lane fumbling in the car as the officers were approaching the vehicle was simply a hunch or unparticularized suspicion, not a reasonable inference drawn from the facts in light of the officer’s experience. None of the factors individually constituted a reasonable articulable suspicion of criminal activity: not the high-crime area nor Lane’s nervous fumbling nor the officer’s hunch. And none of the factors combined constituted a reasonable articulable suspicion of criminal activity. Lane was not being evasive in his nervous fumbling. He did not get out of his car and flee, and he did not attempt to drive off.
And no points are awarded for moving the goalposts once the evidence was challenged.
In fact, Lane’s first pat-down was a safety pat-down for weapons. The officers testified that they were concerned about their safety due to Lane’s fidgeting and looking back when the officers were approaching. That reasonable articulable suspicion of officer safety is justified given the facts. However, the Commonwealth now attempts to ex post facto convert the original hunch that Lane might pose a safety threat into a new hunch that Lane might have possessed drugs.
The court goes on to point out that if it accepts the government’s reasoning, anyone in any area deemed to be the “wrong place” (or at the “wrong time,” i.e. “dark”) could be subjected to searches by law enforcement — an invitation this court isn’t interested in handing out.
It’s good to see courts recognizing it’s not the length of the unconstitutional activity, it’s the activity itself that’s a problem.