Recently, a federal appeals court addressed the issue of questioning suspects on topics not related to the original reason for the contact or traffic stop when the questioning prolongs the contact for some period of time. Questioning suspects on topics beyond the context of the stop has been the subject of controversy in legal circles for a while.
Last year, the U.S. Supreme Court finally gave some guidance to the law enforcement community, concluding that police officers, indeed, are permitted to question suspects on topics unrelated to the cause of contact.[1] In Arizona v. Johnson, the court held that an “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 traffic stop.”[2]
Not surprisingly, the Johnson case left some questions unanswered. In particular, how long can officers extend the duration of the stop as a result of questioning suspects on issues unrelated to the traffic stop? When does the duration become “measurably extend[ed],” such that it becomes unreasonable in violation of the Fourth Amendment?
United States v. Everett
On April 6, 2010, the Sixth Circuit Court of Appeals addressed this issue for the first time in United States v. Everett.[3] The facts, like a typical day for most in law enforcement, are not extraordinary.
Harvey Everett was on his way to see his tax preparer after having just helped his estranged wife move into another house. He was speeding 5–10 mph over the speed limit when he passed by Nashville (Tenn.) Det. Morgan Ford. Ford conducted a traffic stop, which ended up in the parking lot of the tax preparer’s office.
Ford asked Everett for his license, registration and proof of insurance. Everett was driving on a suspended driver’s license but was able to provide alternate proof of identification. In the process, Ford smelled alcohol on Everett’s breath. Everett complied with Ford’s request to step out of the car.
Instead of proceeding with “standard traffic-stop procedure—i.e., checking for registration or proof of insurance” or directly proceeding to write Everett a speeding ticket, Ford immediately asked him “if he had anything illegal on his person, any weapons or narcotics or anything like that, or anything illegal in his vehicle.”[4] The facts of the case revealed that Ford didn’t have any particularized suspicion to believe Everett possessed any weapons, drugs or other contraband, although she did testify that in her experience, people who have been drinking carry firearms in their vehicles.[5]
In response, Everett stated that he “had an open 40 oz. beer and a .410 shotgun, which … he knew he wasn’t supposed to have because he was a convicted felon.”[6] The detective asked Everett what his conviction was for, and he responded “drugs.”[7] After stating that he didn’t have anything else on his person after Ford asked him such, Everett agreed to allow the detective to conduct a pat-down. As a result, she found two baggies of marijuana in his jacket pocket.
After handcuffing Everett and placing him in her squad car, Ford conducted a search of his vehicle. She located an unloaded .410 shotgun wrapped in a black trash bag on the floorboard of the backseat, and an open 40 oz. beer along with a set of digital scales containing a white powder residue, which field-tested positive for crack cocaine. Due to Everett’s cooperative nature, Ford only issued misdemeanor citations for possession of marijuana and drug paraphernalia, and driving on a revoked license. She also issued him a ticket for careless driving. Everett was then released.
Despite Ford’s leniency, the government charged Everett with one count of possessing a firearm as a felon in violation of 18 U.S.C. § 922(g). Everett moved to suppress the evidence and statements obtained during the traffic stop. The district court denied Everett’s motion. Everett entered a conditional guilty plea, reserving the suppression issue for appeal, and he was sentenced to 36 months in prison.
The Appellate Court Opinion
On appeal, the court found, without question, the traffic stop was valid at the outset. Everett admitted that he was speeding, and this is enough to establish a lawful stop. The court also found that a lawful stop can violate the Fourth Amendment if its “manner of execution unreasonably infringes interests protected by the Constitution.”[8] Thus, the issue for review was whether the traffic stop complied with the standards for temporary detentions set forth in Terry v. Ohio [9] and its progeny.
Terry stops are reasonable if they’re limited in both scope and duration.[10] The duration prong of Terry requires that a stop “must … last no longer than is necessary to effectuate the purpose of the stop.”[11] Under Terry’s scope prong “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”[12]
The appellate court in Everett acknowledged that for a while, several courts restricted officers’ questioning during traffic stops to issues that were reasonably related to the purpose of the traffic stop.[13] However, it also noted the Supreme Court put the issue to rest in Meuhler v. Mena,[14] finding that “mere police questioning does not constitute a seizure” in a case where a search warrant for deadly weapons and evidence of gang membership was executed but where officers questioned the occupants of the house regarding their immigration status. The court held that the questioning wasn’t an additional seizure where there was no evidence that the detention was prolonged by the questioning.
The appellate court in Everett also acknowledged that the holding in Mena was applied to traffic stops as illustrated by the Supreme Court’s opinion in Arizona v. Johnson.[15] In Johnson, an officer questioned a vehicle passenger about gang affiliation while a second officer was attending to the driver’s license, registration and insurance information. The court held that the questioning hadn’t affected the duration of the seizure and, therefore, wasn’t in violation of the Fourth Amendment.
Unfortunately, the facts in Everett could not be pigeonholed into Mena or Johnson. This is because, unlike Mena and Johnson, Ford’s initial questioning about weapons and narcotics did extend the stop, even if it was just for a few seconds. Thus, the Sixth Circuit Court of Appeals had to address the issue of whether Mena and Johnson established a bright-line rule prohibiting any extension of the stop based on questioning unrelated to the original traffic stop. The answer was “no.”
The appellate court found that the Supreme Court has steered clear of bright-line rules in the context of the Fourth Amendment. Instead, it emphasized reviewing each case under the totality of the circumstances of its own set of facts. As such, the appellate court found that the Supreme Court didn’t impose a “categorical ban on suspicionless, unrelated questioning that may minimally prolong a traffic stop.”[16]
So, the issue became: If some prolongation under Mena and Johnson is permissible, how much is too much? The court in Everett cited to several opinions from other circuits finding that 25 seconds, less than 90 seconds, two minutes and five minutes didn’t unconstitutionally lengthen the detention.[17] The court also acknowledged that the prolongation of a stop shouldn’t be viewed in isolation. Instead, it should take into consideration an officer’s diligence during the traffic stop which considers not only the quantity of the questioning, but also the subject of the questioning. The court found that the safety of an officer during a traffic stop is a legitimate and weighty interest and, as such, officers are permitted to inquire about dangerous weapons. Thus, questions regarding officer safety don’t give any indication of a lack of due diligence.
In sum, the appellate court found that the officer didn’t lack due diligence in questioning Everett about having weapons or narcotics. The delay caused by uttering these extra words was minimal. Indeed, only one question was asked before Everett confessed to having a weapon and an open container of alcohol. The appellate court also found that this question didn’t take up the bulk of the interaction between Everett and the officer. It found, therefore, that the traffic stop did not violate the Fourth Amendment.
The Bottom Line
It’s clear the Supreme Court permits officers to question motorists on topics outside the reason for the initial traffic stop where there’s no extension of the traffic stop due to such questions. The same is true in situations where one officer is tasked with the job of issuing the traffic citation while a second officer is questioning the motorist. The second officer can question all that he wants (non-coercively) as long as he doesn’t prolong the task of the first officer.
However, most officers don’t have the benefit of back-up officers within minutes of performing a traffic stop. What to do then? An officer may still conduct an inquiry about unrelated issues (i.e., weapons and drugs) as long as that unrelated questioning doesn’t take up the bulk of the traffic stop or delay the traffic stop any more than a few minutes.
References
1. Arizona v. Johnson, 129 S.Ct. 781 (2009).
2. Id. at 788.
3. 691 F.3d 484 (6th Cir. 2009).
4. Id., 691 F.3d at 487.
5. Id.
6. Id.
7. Id.
8. Id. at 488 (citation omitted).
9. 392 U.S. 1 (1968).
10. See, Florida v. Royer, 460 U.S. 491, 500 (1985).
11. Id.
12. Id.
13. Everett, 601 F.3d at 489.
14. 544 U.S. 93, 100-01 (2005).
15. Supra.
16. Everett, 601 F.3d at 492.
17. Id. at 493.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue
