Criminal Investigation During a Traffic Stop

Even law-abiding citizens may find themselves detained by police for a traffic violation. By now it is clear that police officers may stop a motorist for any infraction of the rules of the road. The stop is valid even if the officer has used the traffic violation as a pretext for stopping the car.[1]

Less clear is how long an officer can detain a motorist and what kinds of questions can be asked beyond the scope of the initial reason for the stop. In other words, when an officer pulls someone over, how long can the officer detain the motorist and what kinds of interrogation can occur before the seizure violates the Fourth Amendment and Article I, Section 7 of the Tennessee Constitution?

Officers often try to obtain consent to search the car or to develop probable cause of other criminal activity during a traffic stop. For years, prosecutors and defense lawyers have sparred over how much questioning is too much, and officers in the field have struggled to understand what they are allowed to do. Recent cases give us the factors for analyzing whether there has been a Fourth Amendment violation based on the additional questioning, but a bright line rule remains elusive.

This issue has sparked debate for years and has resulted in a number of different tests being applied. The basic framework is adopted from Terry v. Ohio, requiring that the detention be justified at its inception and reasonably related in scope to the circumstances that justified the initial stop. Therefore, some courts had strictly held that any questioning beyond the scope of the initial reason for the stop were out of bounds, resulting in a constitutional violation (e.g., United States v. Holt).[2]
The Supreme Court Approves Questioning Beyond the Scope of the Traffic Stop

Recently, the Supreme Court seemed to take the wind out of the sails of the defense argument that officers unreasonably detained motorists by asking questions unrelated to the traffic violation. The court seemed to give its stamp of approval to questioning about other potential criminal activity. In Arizona v. Johnson,[3] the U.S. Supreme Court held that a police officer who has pulled someone over for a traffic violation can inquire into issues unrelated to the traffic stop and that such inquiries “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.” Johnson was initially seen as giving a great deal of leeway to officers. Defendants seized on the “measurably extend” language, however, and tried to measure the time that officers spent asking them questions beyond the scope of the initial stop. The circuits that considered the issue have rejected a bright-line “no prolongation” rule.[4]

However, the rejection of a bright-line rule means there is room for argument in almost any traffic stop case.

Sixth Circuit Guidance

Shortly after Johnson, the Sixth Circuit directly confronted the issue: “under … Arizona v. Johnson, 555 U.S. 323 (2009), when, if ever, may an officer conduct questioning during a traffic stop that (1) is unrelated to the underlying traffic violation, (2) is unsupported by independent reasonable suspicion, and (3) prolongs the stop by even a small amount?”[5] The Sixth Circuit rejected a bright-line rule and instead determined a “fact-bound, context-dependant inquiry” was required in each case.[6] The proper inquiry is “whether the ‘totality of the circumstances surrounding the stop’ indicates that the duration of the stop as a whole including any prolongation due to suspicionless unrelated questioning was reasonable.”[7] The “overarching consideration is the officer’s diligence ... of ascertaining whether the suspected traffic violation occurred, and if necessary, issuing a ticket.”[8] According to the Sixth Circuit, the encounter violates the constitution only if the officer has “definitively abandoned” investigation of the traffic violation and, without reasonable suspicion, embarked on another sustained course of investigation.[9]

In Everett, the officer testified that she made a “pretextual” traffic stop in order to “ferret” out other types of crime.[10] But it only took one question outside the scope of the traffic stop for the driver to admit that he was a felon with a shotgun and a 40-ounce beer in the car. The court had little trouble determining that this limited questioning was reasonable and did not violate the Fourth Amendment.

Tennessee Treatment

Prior to Johnson, the Tennessee Supreme Court applied a standard very similar to the rule set out in Johnson, in State v. Cox:
The duration of [a traffic] stop, however, must be “temporary and last no longer than necessary to effectuate the purpose of the stop.” “The proper inquiry is whether during the detention the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” A traffic stop may be deemed “unreasonable,” if the “ ‘time, manner or scope of the investigation exceeds the proper parameters.’ ”[11]

The Tennessee Supreme Court has not addressed the application of Johnson, but the Court of Criminal Appeals has applied it in decisions designated not for publication. The Tennessee standard is still similar to the one used by the federal courts. In Tennessee, “if ‘the time, manner or scope of the investigation exceeds’ the ambit of reasonableness, a constitutionally permissible stop may be transformed into one which violates that Fourth Amendment and article 1, section 7 of the Tennessee Constitution.”[12]

Post-Johnson Challenges Are Viable

In United States v. Digiovanni,[13] the Fourth Circuit, relying on Johnson and Everett, held that a trooper failed to diligently pursue a traffic violation and instead turned the encounter into a drug investigation. The trooper asked a few questions regarding drugs, including whether the defendant had any marijuana, producing a classic response: “I never smoked marijuana in my life. It puts me to sleep.” The court noted several opportunities the officer had to finish the warning ticket. The Digiovanni opinion is significant in that it rejected a government argument for a bright line rule that officers should be given at least 15 minutes for a traffic stop. Again, the court rejected a bright line rule and found that while the duration was short, the defendant was unlawfully detained. On the other hand, following the reversal in Digiovanni, the same court held that an officer did act diligently in pursuing a traffic stop when the officer delayed in order to call Immigration and Customs Enforcement to verify the validity of the defendant’s identification.[14]

Conclusion: Analyze the Factors in Each Case

The lack of a bright-line rule means that counsel for the prosecution and the defense have to look at any arrest made during a traffic stop to find the factors that help them argue that the search was either constitutionally permissible or unreasonable. The use of video equipment in police cars assists in analysis of these issues.

The main factor appears to be whether the officer acted with “diligence” in pursuing the traffic stop. Several actions are going to be allowed. “[D]iligence involves requesting a driver’s license and vehicle registration, running a computer check, and issuing a ticket.”[15] As to the scope of questioning, the court will look at both the subject and quantity of the questioning.[16] If questions are directed toward officer safety, they will not be considered to show a lack of diligence.[17] While there is no bright-line rule, the amount of time by which the stop is prolonged by extraneous questioning will be considered and should be timed. After Johnson, some degree of questioning beyond the scope of the original traffic stop will be upheld, but given the imprecise nature of the factors to be considered, there is plenty of opportunity for advocacy on both sides.

Notes

  1. Whren v. United States. 517 U.S. 806 (1996); State v. Vineyard, 958 S.W.2d 730 (Tenn. 1998).
  2. United States v. Holt, 264 F.3d 1215 (10th Cir.2001) (en banc).
  3. Arizona v. Johnson, 555 U.S. 323 (2009).
  4. See United States v. Chaney, 584 F.3d 20 (1st Cir.2009); United States v. Turvin, 517 F.3d 1097 (9th Cir.2008); United States v. Olivera-Mendez, 484 F.3d 505 (8th Cir.2007).
  5. United States v. Everett, 601 F.3d 484 (6th Cir.2010).
  6. Id. at 494.
  7. Ibid.
  8. Everett, 601 F.3d at 494.
  9. Id. at 495.
  10. Id. at 486.
  11. State v. Cox, 171 S.W.3d 174 (Tenn.2005), quoted in State v. Berrios, 235 S.W.3d 99, 106 (Tenn. 2007)(finding it unconstitutional to hold a motorist in the back of a patrol car after a justifiable traffic stop).
  12. State v. Taylor, No.E201O-01817-CCA-RD-CD, at *7, 2011 WL 2120087 (Tenn. Crim. App. May 20, 2011).
  13. United States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011),
  14. United States v. Guijon-Ortiz, 660 F.3d 757 (4th Cir. 2011).
  15. Digiovanni, 650 F.3d 498. 507 (4th Cir. 2011).
  16. Everett, 601 F.3d at 494.
  17. Everett, 601 F.3d at 494-95.

Wade Davies WADE DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.