Search and Seizure - Highway Stops

Rodriguez v. United States, 135 S. Ct. 1609 (2015)

The Supreme Court emphasized that the tolerable duration of a traffic stop is determined by the legitimate mission of the stop: a traffic stop may not be prolonged – even for a few minutes – in order to engage in a criminal investigation. In Rodriguez, the defendant was pulled over on the Interstate for driving on the shoulder. After concluding the traffic stop procedures (checking the license and registration and issuing a warning), the officer asked for permission to walk his dog around the car. The defendant declined this invitation. The officer detained the defendant nevertheless and deployed the dog. The time that elapsed from the issuance of the traffic warning until the dog alerted was approximately seven or eight minutes. The Supreme Court condemned the stop and ordered that the evidence be suppressed: Though the police may engage in an unrelated investigation during the course of a legitimate highway stop (such as asking questions about the defendant’s itinerary), the stop may not be prolonged absent reasonable suspicion or probable cause. Whether the officer expeditiously concludes the traffic related investigation or not, the stop may not be prolonged to conduct a general criminal investigation.

Heien v. North Carolina, 135 S. Ct. 530 (2014)

A good faith mistake of law by a law enforcement officer does not render an arrest, or detention unreasonable under the Fourth Amendment. Even prior to the decision whether the exclusionary rule should apply, the court must consider that a Fourth Amendment violation requires that the arrest or detention be “unreasonable”. And if the police officer has made an objectively reasonable mistake of law, then the detention of a suspect is not unreasonable. In Heien, the police officer stopped the defendant because he had only one working brake light. Under North Carolina law, cars are only required to have one working brake light. The parties agreed that the officer’s mistake of law was reasonable. The defense claimed, however, that a mistake of law by a law enforcement officer renders a detention unreasonable for Fourth Amendment purposes. The Supreme Court disagreed. For the same reason that a reasonable mistake of fact does not render a detention unreasonable, a detention prompted by a reasonable mistake of law is also not an unreasonable detention.

Navarette v. California, 134 S. Ct. 1683 (2014)

A 911 caller who did not identify herself, told the dispatcher that a specific vehicle had just run her off the road. The police went to the highway and saw the described vehicle, followed it for a few minutes (observing no traffic infractions) and then stopped the vehicle. Drugs were located in the car. The Supreme Court held that the traffic stop was permissible under the Fourth Amendment. Because the caller correctly identified the vehicle – a fact verified the police who later observed the vehicle traveling in the direction described by the caller; and because the caller would know that his or her cell phone could be traced, there was sufficient indicia of reliability to authorize the stop. Four Justices dissented.

Brendlin v. California, 127 S.Ct. 2400 (2007)

When the police stop a vehicle that has a driver and passenger, the passenger is also “detained” for fourth amendment purposes. Therefore, if there was no basis for the stop, the passenger may contest the admissibility of any fruits of that stop (for which he has standing), such as a statement he made, or evidence seized from his person or personal belongings.

Illinois v. Caballes, 125 S.Ct. 834 (2005)

The defendant was stopped for a routine speeding violation. While the car was stopped and the trooper was preparing a warning ticket, another officer walked a drug dog around the car. The dog alerted; the car was searched based on probable cause; and drugs were found. The Supreme Court held that this was permissible. A dog alert is not a “search” and in this case, the time it took to walk the dog around the car did not prolong the stop. Thus, there was no Terry violation and no need for a warrant or an articulable suspicion to authorize the use of the dog.

United States v. Arvizu, 534 U.S. 266 (2002)

The Supreme Court reversed the Ninth Circuit which had categorically held that various innocent factors could not be considered by the police in assessing whether there was an articulable suspicion supporting a stop of a vehicle on the road. In this case, the officer’s suspicions were aroused by the location of the vehicle (in the desert of rural Arizona); the vehicle slowed when it approached the officer; children in the minivan waved at the officer in a manner that struck the officer as unusual; and the driver did not acknowledge the officer’s presence. The Ninth Circuit had held that these factors could not even be considered by the court in determining whether there was a basis for stopping the vehicle. The Supreme Court unanimously held that under the totality of the circumstances test, all facts may be considered by the court in reviewing the officer’s basis for stopping a vehicle. The Court also noted that the officer was entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.

United States v. Alvarado-Zarza, 782 F.3d 246 (5th Cir. 2015)

A Texas statute requires that a turn signal be activated at least 100 feet prior to making the turn. In this case, the defendant activated his turn signal less than 100 feet prior to changing lanes, but more than 100 feet from where the turn actually occurred. The Texas police officer stopped the vehicle on the basis that the defendant violated the 100 foot rule by failing to activate his signal prior to changing lanes. The Fifth Circuit, in this post-Heien decision held that the officer’s mistake of law (applying the 100-foot rule to the change of lanes, rather than the actual turn) was no reasonable and his possible mistake about whether the turn itself was less than 100-feet from the point that the signal was activated was also not reasonable. The stop of the vehicle was improper and the evidence discovered as a result of the stop should have been suppressed.

United States v. Evans, 786 F.3d 779 (9th Cir. 2015)

After completing the normal traffic stop inquiry, the police prolonged the stop of the defendant in order to determine if he was properly registered as an ex-felon. This was an unconstitutional extension of the stop (see Rodriguez, annotated above) and rendered the resulting discovery of evidence subject to suppression.

United States v. Iraheta, 764 F.3d 455 (5th Cir. 2014)

If a driver consents to the search of his automobile, including all closed containers, and there are suitcases belonging to passengers in the vehicle, if the passengers hear the consent given by the driver and don’t object, the consent is valid. However, where, as here, the consent is given outside the earshot of the passengers, the consent is not a valid consent insofar as it purports to consent to the search of passengers’ belongings.

United States v. Noble, 762 F.3d 509 (6th Cir. 2014)

The police were watching the Interstate for a vehicle that was suspected to be involved in a methamphetamine distribution operation. When the vehicle was spotted, an officer pulled behind it. The vehicle crossed a lane line without a proper signal. The officer activated his lights. The officer determined that the tint on the window was too dark. The driver and the passenger (the defendant) were excessively nervous. The driver consented to a search of the vehicle, at which point the passenger/defendant was asked to exit the vehicle and he was frisked. Because there was no basis to believe that he was armed or dangerous, there was no legitimate basis to frisk the defendant and the evidence derived from this frisk should have been suppressed. The facts that the driver and passenger were nervous and that the vehicle was suspected of being involved in a drug trafficking operation are not sufficient to support a reasonable belief that the passenger was armed or dangerous, even coupled with the officer’s experience that drug dealers are often armed. The court ridicules the notion that any passenger in a car can be frisked if the driver or the vehicle is suspected of being involved in drugs: this would presumably include “a fourth grader, a ninety-five-year-old gentleman with Parkinson’s disease, or a judge this court.” The law requires individualized suspicion of the person who is to be frisked, not a general belief that someone in the vehicle might possibly be armed.

United States v. $45,000.00, 749 F.3d 709 (8th Cir. 2014)

A police officer stopped the defendant’s vehicle on the basis that he could not read the state on the license plate and because the defendant exited the Interstate on an exit that was unusual for an interstate traveler (the defendant was heading to Utah and was passing through Nebraska) because it had no services at the exit. After giving the defendant a citation for the unreadable license plate, the officer deployed a drug dog. The dog alerted and the police found $45,000 in currency. The officer later conceded that once he came within 100 feet of the car, he could see the license plate said “Utah,” though the state name was partially obscured. Thus, there really was no violation that prompted the initial stop. The Eighth Circuit held that if there was no actual violation, the stop was improper. Because the license plate was readable within 100 feet, the stop was improper. The defendant’s decision to use a particular exit, while possibly characterized as unusual, added little to the probable cause basis for detaining him.

United States v. Saafir, 754 F.3d 262 (4th Cir. 2014)

The police stopped the defendant for a motor vehicle infraction. Dispatch advised the officer that the defendant was a gang member with prior convictions, but no outstanding warrants. The police asked for consent to search the car, but the defendant refused. Then, based on the observation of a “flask” which the officer believed contained alcohol, the officer advised the defendant that they had probable cause to search the vehicle with or without his content. (This was not true). The defendant then sighed, and when asked if there was “something in the car” the defendant responded, that there might be; there “might be” a gun and it “might” be under the seat. In fact, there was no evidence that the flask actually contained alcohol. The probable cause that existed to search the car (defendant’s acknowledgement that he had a gun in the car) was the product of the false assertion that the police would search without a warrant based on the presence of the alcohol in the flask. As in Bumper v. North Carolina, 391 U.S. 543 (1968), which consent was the product of a false assertion of authority to search, the existence of probable cause in this case was the product of a false assertion of authority to search.

United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013)

The police stopped the defendant’s vehicle or a motor vehicle offense that did not actually occur. In short, the police thought the defendant had made an illegal left turn, when, in fact, there was nothing illegal about the method by which he made the turn. (The law related to which lane a car must enter when making a left turn). This mistake of law on the part of the officer rendered the stop improper and any evidence discovered thereafter should have been suppressed. The Tenth Circuit distinguished mistakes of fact on the part of law enforcement officers which, if reasonable, will not lead to suppression of the evidence.

United States v. Uribe, 709 F.3d 646 (7th Cir. 2013)

The defendant was driving a blue Nissan on the Interstate and there was no evidence that he was violating any motor vehicle law. A police officer driving behind him, however, determined that the car was actually registered to a white Nissan. The officer pulled the defendant over and thereafter, a canine alerted to the vehicle. The trial court determined that there was no basis for the stop and the Seventh Circuit agreed. The color of a vehicle is irrelevant because an owner may point his car without changing the registration information.

United States v. Murphy, 703 F.3d 182 (2d Cir. 2012)

The trial court’s findings of fact, which included the finding that the trooper stopped the defendant’s vehicle without having observed a traffic violation, were not clearly erroneous and therefore, the suppression of evidence was proper. The defendant’s consent to search the car was tainted by the unlawful detention.

United States v. Sowards, 690 F.3d 583 (4th Cir. 2012)

An officer’s testimony that he visually determined that a driver was traveling five miles per hour over the speed limit did not establish probable cause to support the stop of the defendant’s car. The officer did not “pace” the car, or use his radar equipment, but only visually estimated the speed and his testimony at the suppression hearing showed that he was not trained to do so.

United States v. Neff, 681 F.3d 1134 (10th Cir. 2012)

The defendant exited the higway immediately after he passed a “checkpoint sign” that alerted drivers that a drug dog would sniff cars farther ahead. The Tenth Circuit concluded that the defendant’s exiting the highway in apparent response to this this “ruse-checkpoint” tactic did not provide sufficient information to justify a stop in this case.

United States v. Lewis, 672 F.3d 232 (3rd Cir. 2012)

The police received information from a reliable informant that firearms were in a white Toyota that had a license plate that included the numbers “181.” The informant did not relay his basis of knowledge, or whether the firearms were illegally possessed. The police stopped the vehicle. A gun was found on the defendant. Later, the officers determined that the vehicle had illegally tinted windows. The Third Circuit held that the traffic stop could not be supported by the illegal tint, because even though that might have been a valid basis for stopping the vehicle, the officers were not aware of that offense when the vehicle was stopped. The informant’s information was also insufficient to support the stop. It is not illegal to possess a firearm, consequently, the mere fact that a firearm is in a vehicle is not a legitimate basis to stop the vehicle.

United States v. Macias, 658 F.3d 509 (5th Cir. 2011)

The duration of the traffic stop in this case lasted too long to be justified as a legitimate motor vehicle stop. The state trooper pulled the defendant over because he was not wearing a seat belt. He determined that the defendant did not have proof of insurance. The trooper then questioned the defendant at length about his work history, his itinerary, his purpose for traveling and his health. The defendant’s consent to search the vehicle was the product of the illegal detention.

United States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011)

The defendant was pulled over based on a traffic violation. Yet, the police spent the first fifteen minutes of the stop talking about drugs and the defendant’s itinerary and did nothing to pursue the typical traffic violation procedures. The Fourth Circuit held that even though the entire stop, prior to the discovery of drugs, lasted only fifteen minutes, a Terry stop must not only be limited in terms of duration, but also in scope. In short, the police must act reasonably and this includes a component of acting diligently to pursue the legitimate basis of the stop. The detention in this case was not proper. The officer’s claim that he had a reasonable suspicion based on various facts – there were two shirts hanging in the back of the car; there was a hygiene bag in the back seat; the car was clean; the defendant’s hands were trembling while he was being questioned – were rejected as providing any basis for the prolonged stop.

United States v. Raney, 633 F.3d 385 (5th Cir. 2011)

The Fifth Circuit concludes that there was no violation of the Texas motor vehicle code that justified the police officer’s stop of the defendant. All evidence derived from the stop should have been suppressed.

United States v. Olivares-Pacheco, 633 F.3d 399 (5th Cir. 2011)

Two hundred miles from the border, the border patrol agents saw the defendant driving a Chevy truck with numerous passengers. Nobody made eye contact with the agents, but all of the passengers looked the opposite direction when one of the passengers pointed to something on the other side of the road. The police also saw some “brush” under the vehicle. The Fifth Circuit concluded that these two factors, even coupled with the agents’ experience, were not sufficient to support the stop of the vehicle. “If we were to affirm the district court[‘s denial of the suppression motion] in this case, we would be doing so based on facts of an unprecedented suspicionsless nature.”

United States v. Foster, 634 F.3d 243 (4th Cir. 2011)

The Fourth Circuit condemns the government’s use of post hoc explanations to justify a police officer’s detention of a defendant. Relying on such observations as “suddent hand movement in the car” and “suddenly appearing from crouched position” are not valid bases for stopping a defendant and then claiming that these were factors that justified the stop. The Court suppressed the evidence found during a search that followed a stop based on these circumstances.

United States v. Prokuper, 632 F.3d 460 (8th Cir. 2011)

The police set up a fake road block warning advising driver’s on the interstate of a forthcoming road block. The defendant exited prior to the designated location. The police then pulled the defendant over. On the recorded encounter between the defendant and the officer, the officer said that the defendant used his turn signal when he turned off the exit ramp onto the county road, but not when he exited the interstate. At the suppression hearing, the officer acknowledged that he did not see the defendant actually exit the interstate and that the traffic stop was based on the failure to use his turn signal when he turned on the county road. The officer could not explain his contemporaneous statement that he made during the recorded stop. The district court simply found a valid stop based on the failure to use a turn signal when the turn was made on the county road. The Eighth Circuit reversed. There was no way to reconcile the officer’s testimony at the hearing and his statement on the tape.

United States v. Pena-Montes, 589 F.3d 1048 (10th Cir. 2009)

The police pulled over the car in which the defendant was a passenger because the officer could not see a license plate on the car. Upon approaching the car, the officer saw a dealer plate displayed in the rear window. The officer thought the car might be stolen, because the driver had no paperwork establishing his ownership, but after calling in the VIN number, the officer found no report that the car was reported stolen. Nevertheless, the officer questioned the defendant – the passenger – and decided that his answers to various questions were suspicious and eventually, he was arrested. The police later determined that he was an illegal alien. The Tenth Circuit held that the continued detention of the occupants of the car was not legal. Once the officer saw the dealer tag, there was no basis for detaining them. The officer’s testimony that dealer tags are limited circumstances in which a driver test-drives a car was legally incorrect. The officer’s mistake of law (as opposed to mistake of fact) could not justify the continued detention of the vehicle’s occupants. The court remanded the case to the lower court to assess the extent to which the exclusionary rule would apply in this case (i.e., excluding evidence of the defendant’s identity and status as an illegal alien).

United States v. Gross, 550 F.3d 578 (6th Cir. 2008)

A sheriff’s deputy stopped the defendant’s vehicle on the Interstate on the basis that it appeared to be straddling two lanes of traffic. The officer’s testimony, however, revealed that the defendant was essentially changing lanes, though it took some distance to complete the lane change (100 yards). The Sixth Circuit held that the testimony of the officer, even if believed in its entirety, did not establish a violation of the traffic laws that would support a stop of the vehicle. The resulting consent to search was invalid and the evidence should have been suppressed.

United States v. Peralez, 526 F.3d 1115 (8th Cir. 2008)

The traffic stop of the car in which the defendant was riding lasted too long. The police officer asked various drug interdiction questions that doubled the length of time that the stop would have lasted had he confined himself to the motor vehicle infraction questions. However, this did not support suppression of the evidence, because a drug dog alerted to the vehicle during this period of questioning.

United States v. Valadez-Valadez, 525 F.3d 987 (10th Cir. 2008)

The Tenth Circuit holds that stopping a vehicle because it is proceeding 10 mph below the speed limit is not a valid traffic stop in the absence of evidence that the defendant is obstructing or impeding the flow of traffic. In this case, the officer was laboring under a mistake of law (as opposed to a mistake of fact) about whether the defendant’s speed must be impeding the flow of traffic before an offense is being committed. A mistake of law does not justify a stop which is not legally permissible. “An officer’s failure to understand the plain and unambiguous law he is charged with enforcing is not objectively reasonable.”

United States v. Blair, 524 F.3d 740 (6th Cir. 2008)

The police stopped the defendant both because he had an inoperable taillight and because they thought he was involved in drug activity. Based on the evidence developed at the hearing, the court concluded that there was insufficient basis to stop the defendant based on any drug suspicion, but there was sufficient information to stop him based on the taillight violation. However, the stop lasted too long based on a taillight violation. After the information was obtained that was necessary to issue a citation, the police asked for consent to search the car (which was denied) and then said that they would detain the defendant until a drug dog arrived. This prolonged the stop beyond what was justified by a taillight infraction.

United States v. Urrieta, 520 F.3d 569 (6th Cir. 2008)

After pulling the defendant over for improper registration and weaving, the trooper determined that the defendant had a Mexican driver’s license which the trooper incorrectly believed did not authorize the defendant to drive in Tennessee. Thr trooper wrote a ticket for the registration violation, but prolonged the traffic stop based on his erroneous belief that the license was insufficient (and because of his suspicion that the defendant was smuggling drugs). Eventually (twenty-four minutes after the stop commenced), the trooper asked for consent to search the car, which the defendant provided. The Sixth Circuit held that the stop lasted too long, based on the trooper’s erroneous understanding of the law and the consent was tainted by the prolonged detention. The court also rejected the government’s suggestion that the trooper had a reasonable basis for believing that the defendant was smuggling drugs. The “characteristics” upon which the government relied were not sufficient to amount to a reasonable articulable suspicion. Finally, the court held that even if there was reasonable suspicion to believe that the defendant was in the country without proper documents, the trooper lacked the authority to investigate this matter.

United States v. Henderson, 463 F.3d 27 (1st Cir. 2006)

In a lengthy opinion carefully reviewing the record of the suppression hearing, the First Circuit held that the trial court erred in making a credibility determination that the officer who made the traffic stop in this case was truthful about the passenger (the defendant) not wearing a seatbelt. Based on the officer’s testimony, which was riddled with inconsistencies and contradictions, the district court should have granted the suppression motion.

United States v. Guerrero-Espinoza, 462 F.3d 1302 (10th Cir. 2006)

The defendant was a passenger in a car that was stopped on the Interstate for a motor vehicle offense. After the warning ticket was given to the driver, but before he returned to the car, the trooper began questioning the defendant. This was not a consensual continuation of the stop and was not authorized by any reasonable articulable suspicion.

United States v. Jenson, 462 F.3d 399 (5th Cir. 2006)

The police pulled the defendant over for speeding and the officer’s suspicion was aroused by varying stories told by the defendant and his passenger about what they were doing and where they worked. Some of the questioning occurred after the warning was issued. The police asked for permission to search the car, which was granted. Prior to starting the search, the police started to frisk the defendant, but he resisted, which prompted the officer to draw his weapon and order the defendant to raise his arms. The defendant was searched and a small gun was found. The Fifth Circuit held that the detention lasted longer than was justified by the information known to the police and that the consent to search was invalid, thereby also invalidating the decision to frisk the defendant.

United States v. Washington, 455 F.3d 824 (8th Cir. 2006)

The police pulled the defendant over because his windshield was cracked. A gun was found and the defendant was prosecuted for being a felon in possession of a firearm. Driving with a cracked windshield, however, is not a violation of Nebraska State law. Therefore, the stop of the defendant was unlawful and the discovery of the gun was a fruit of the illegal stop. The government’s argument that the officer acted in good faith was rejected: The mistake of law was not objectively reasonable. The question is not whether the officer subjectively believed that the law was being violated, but whether, from an objective point of view, a belief that the law was being violated was reasonable.

United States v. Cole, 444 F.3d 688 (5th Cir. 2006)

The defendant stopped at a stop sign just shy of the cross walk, but over the solid white line. He claimed that this did not violate Texas law. The government argued that the traffic stop was valid regardless of the actual Texas law, because the officer, in good faith, thought that the law required the defendant to stop before the solid white line. The Fifth Circuit held that a good faith mistake as to the law was not a cure for an invalid stop.

United States v. Hudson, 405 F.3d 425 (6th Cir. 2005)

The police had an arrest warrant for the defendant, but could not find him. The police made a warrantless, illegal stop of a car being driven by the defendant’s girlfriend and discovered that the defendant was in the car. He was searched. The Sixth Circuit held that this was an illegal search. Because the stop was illegal, the search of the defendant was the fruit of that illegality, despite the fact that the police had a warrant for the defendant.

United States v. Edgerton, 438 F.3d 1043 (10th Cir. 2006)

A trooper pulled the defendant’s car over because the tag was not visible. Upon approaching the car, the trooper saw that the temporary tag was in the rear window. This complied with state law requirements. Nevertheless, the trooper asked for the driver’s license and registration and after reviewing it, asked for consent to search the car, which was given. Drugs were then found in the trunk. The Tenth Circuit reversed: once the trooper determined, while walking up to the car, the tag was proper, he should have explained to the defendant the reason for the initial stop and then allowed her to continue on her way without requiring her to produce her license and registration. See also United States v.McSwain, 29 F.3d 558 (10th Cir. 1994).

United States v. Davis, 430 F.3d 345 (6th Cir. 2005)

When a drug dog failed to alert to the defendant’s car, which had been stopped on the highway, the police summoned a second drug dog. This unlawfully prolonged the duration of the stop (initially prompted by a speeding charge).

United States v. Laughrin, 438 F.3d 1245 (10th Cir. 2006)

Knowledge of a person’s prior criminal involvement is alone insufficient to give rise to the requisite reasonable suspicion supporting a traffic stop. In this case, the officer testified that he had stopped the defendant repeatedly in the past for driving without a license, or on a suspended license. On that basis, when the officer saw the defendant driving, he pulled him over. This was an unlawful stop. The officer’s encounter with the defendant was more than twenty-two weeks previously and this was too long a time to presume that the defendant’s license was still suspended. The information known to the officer, therefore, was too stale to support a stop of the defendant’s vehicle.

United States v. Jaquez, 421 F.3d 338 (5th Cir. 2005)

The police received a report of gun shots at a location and that a red car was involved. Fifteen minutes later, an officer pulled over the defendant who was driving a red car in the general vicinity of the reported gun shots. The Fifth Circuit held that there was insufficient information to support the stop of the defendant’s car and the subsequent consent search was invalid.

United States v. Richardson, 385 F.3d 625 (6th Cir. 2004)

After issuing the driver a warning ticket, the police asked him to “stay where he was” and then approached one of the passengers (the owner of the car) for consent to search. This direction to the driver amounted to a detention – a detention that had no basis in an articulable suspicion – and amounted to an unlawful stop that tainted any subsequent search, even a consensual search. The detention of the driver amounted to a detention of all the car’s occupants.

United States v. DeGasso, 369 F.3d 1139 (10th Cir. 2004)

Though the police were justified for other reasons in stopping the defendant’s vehicle, one of the purported justifications was invalid. The police officer mistakenly believed that the defendant was violating a local law which regulated the use of fog lamps on cars. The highway patrol officer mistakenly believed that the use of fog lamps was improper during daylight hours unless the weather conditions required their use. Actually, the use of fog lamps is only outlawed if they are used in lieu of regular headlights during the nighttime. The Tenth Circuit held that even though the officer acted in good faith, this was not a valid basis for stopping a car and is not excused by the officer’s supposed good faith.

United States v. Valenzuela, 365 F.3d 892 (10th Cir. 2004)

The police stopped a Cadillac and discovered 250 pounds of marijuana. The police believed that a pickup truck had been driving in tandem with the Cadillac and later stopped that vehicle. The pickup drove in close proximity to the Cadillac for twenty-five miles, including through two cities; both cars had Arizona license plates (this was occurring in New Mexico); the appearance of the cars suggested that they were involved in drug smuggling. The appellate court held that the information known to the police was insufficient to support stopping the pickup. Though United States v. Arvizu requires the court to consider all the factors together, the court warned that it would not pile hunch upon hunch.

United States v. Chanthaxouxat, 342 F.3d 1271 (11th Cir. 2003)

The police pulled over the defendant’s car because the officer believed that the defendant was in violation of a municipal law that required an inside rear view mirror. Actually, there was no such law. This rendered the stop illegal and the officer’s good faith did not rescue the government. An officer’s good faith mistake of fact may support a stop, but a mistake regarding the law cannot support an illegal stop and the evidence derived from the stop must be suppressed.

United States v. Boyce, 351 F.3d 1102 (11th Cir. 2003)

The defendant was stopped on the Interstate. His license was checked and the officer issued a warning citation and then asked for consent to search the vehicle. The defendant declined to consent. The officer then summoned a drug dog and instituted a warrant check. Though in United States v. Purcell, 236 F.3d 1274 (11th Cir. 2001), the court held that a warrant check that prolongs a stop is permissible, in that case, the warrant check was instituted as part of the normal traffic stop, whereas in this case, it was only initiated after the defendant declined to consent to a warrantless search. Here, the drug dog arrived in about six minutes, but the prolonged stop was unlawful and the ensuing search was unlawful.

United States v. Perkins, 348 F.3d 965 (11th Cir. 2003)

The defendants’ car was pulled over for drifting over the shoulder lane marker. This was permissible and a driver license check was also permissible. During this time, the officer questioned the driver and the passenger about their itinerary. Their answers were arguably inconsistent, and the officer testified that the defendant was extremely nervous during the questioning. Based on the inconsistent statements as well as the defendant’s nervousness, the officer decided not to allow the defendants to leave and summoned a drug dog. The Eleventh Circuit held that the duration of the detention did not per se violate the Fourth Amendment, but there was no reasonable suspicion justifying any detention after the warning ticket for the lane violation. The appellate court concluded that nervousness can be explained by the “unsettling show of authority” that can create substantial anxiety with every traffic stop.

Joshua v. Dewitt, 341 F.3d 430 (6th Cir. 2003)

The defendant was stopped for speeding and the trooper determined that he, along with his passenger were acting nervous and suspicious. The trooper called his dispatcher and was told that the defendant was listed as a suspicious person who was believed to be a drug courier in a “Read & Sign” book maintained by the police department. Based on this information, the trooper detained the defendant while waiting for a canine to arrive. The dog arrived forty-two minutes later. Drugs were found on the passenger, who implicated the defendant. State trial counsel failed to challenge the legitimacy of the Read and Sign book that prompted the detention. Instead, he simply challenged the length of the detention. Based on United States v. Hensley, 469 U.S. 221 (1985), a detention based on a “flyer” or something else akin to a “Read and Sign” book requires proof that the author of the flyer had reasonable suspicion to list the suspect as a criminal. In this case, however, the state offered no proof that the Read and Sign book was based on reliable information. Moreover, the state’s contention that the defendant’s nervousness justified a detention was meritless. Nervousness may be a basis for an articulable suspicion, but only when it is coupled with evasive behavior. The state trial lawyer’s failure to challenge the stop and search on this basis was ineffective assistance of counsel. The Sixth Circuit also noted that Hensley is not limited to initial stops, but also covers situations in which a stop is prolonged based on this type of information. The Sixth Circuit concludes that not only was trial counsel ineffective, but appellate counsel was, as well.

United States v. Childs, 277 F.3d 947 (7th Cir. 2002) (en banc)

In this en banc decision, the Seventh Circuit holds that the nature of the questions that are asked a driver who is stopped for a motor vehicle infraction does not alter a lawful stop into an unlawful stop, unless the questioning has the effect of lengthening the detention beyond what would be justified by the traffic infraction.

United States v. Patzer, 277 F.3d 1080 (9th Cir. 2002)

The police lacked probable cause to arrest the defendant for DUI. The officer may have believed that the defendant had ingested marijuana, but there was no information suggesting that this impaired his ability to drive which is an element of the DUI offense. Absent probable cause to arrest the defendant, the ensuing search of his automobile could not be justified as a search incident to arrest. Similarly, the defendant’s consent was tainted by the unlawful arrest. Finally, the court ordered suppressed the statements made by the defendant that were the product of the illegal arrest.

United States v. Yousif, 308 F.3d 820 (8th Cir. 2002)

The police set up a fake “drug interdiction” road block, alerting drivers that it was located farther down the highway. Between the location of the notice and the supposed checkpoint was an exit with no services for motorists. The police then stopped the cars that exited. The checkpoint in this case occurred prior to the Supreme Court’s decision in Indianapolis v. Edmond, 531 U.S. 32 (2000). The Eighth Circuit concluded that the fact that the defendant exited the highway after seeing a drug checkpoint sign, even when viewed in combination with other factors, was not a sufficient basis for stopping the vehicle.

United States v. Townsend, 305 F.3d 537 (6th Cir. 2002)

The facts known to the state highway patrol officer were not sufficient to justify a prolonged stop. The facts were: the defendant promptly raised his hands in the air when stopped and promptly had his documentation ready to give to the officer; he readily admitted driving over the speed limit; he said he was driving to his sister’s house, but did not know the address and was going to call her when he arrived. Moreover, the police saw food wrappers in the car, three cell phones and a bible. The officer also felt a “roll of money” when he frisked the defendant. The Sixth Circuit upheld the lower court’s decision suppressing the search. Even after United States v. Arvizu, 534 U.S. 266 (2002), the courts are not obligated to defer to the police officer’s experience in evaluating the lawfulness of a detention.

United States v. Beck, 140 F.3d 1129 (8th Cir. 1998)

The defendant was stopped on the Interstate for following another vehicle too closely. When the officer explained the basis of the stop to the defendant, he appeared nervous. He was driving a rental car (rented by his wife) and had started his trip in California (a source state). He had fast food trash on the front passenger floorboard. No luggage was observed in the back seat. After the defendant was given a warning ticket, the officer told him he was free to leave and started walking back to his car. He stopped, however, and asked the defendant if he had any guns or drugs. The defendant answered, "No." The officer then asked for consent to search the car and the defendant asked why, after which the officer and defendant engaged in a colloquy. The defendant asked what would happen if he refused consent. The officer responded that he would walk a drug dog around the car. A drug dog arrived and was walked around the car. He alerted. Thereafter, the defendant admitted having some drugs in his briefcase. The Eighth Circuit reversed the conviction. The detention of the driver, without his consent, after the warning ticket was given to him and he asked what would happen if he refused consent, was unlawful. When the officer told him that even if he did not consent, a drug dog would be walked around the outside of the car, the defendant could not reasonably believe that he was free to leave. The facts known to the police at that time did not create a reasonable articulable suspicion that the defendant had any contraband in the car, so there was no lawful basis for detaining the defendant. The court reviewed the factors, outlined above, and concluded that the starting point of the defendant's travel (California) is not suspicious (the court reviewed the case law, showing that dozens of states and cities around the country have been identified in other cases as "source cities"). Fast food wrappers, moreover, are hardly uncommon in vehicles traveling across country. Also, nervousness is not uncommon in people when confronted by law enforcement officers. Finally, the driver's explanation that he was going to North Carolina to look for a job was not suspicious.

United States v. Winningham, 140 F.3d 1328 (10th Cir. 1998)

The defendant was stopped by border patrol agents and told that he was suspected of smuggling aliens. He consented to a search of the van and other than one passenger, nobody was found. The defendant then was told that the agent had information that the defendant was smuggling drugs. The defendant again consented to a search of his van, but it took about five minutes for a drug dog to arrive. The dog jumped into the open door of the van and alerted to the presence of drugs near the rear vent. The defendant did not consent to having the dog enter the vehicle. The trial court suppressed the evidence, concluding that the defendant's consent did not encompass allowing the dog to enter the vehicle. The Court of Appeals affirmed. There was no reasonable suspicion justifying the detention of the driver and the van after the initial search yielded nothing; therefore, the only basis for holding the van for five or six minutes, was the driver's consent. The consent that was given, the appellate court concluded, was not voluntary: the driver had been asked to exit the vehicle and stand next to three armed officers. After the initial search ended, the driver was not told that he was free to leave. When the driver started walking away, a law enforcement officer followed him. These factors, taken together, show that any consent given by the driver was not free and voluntary.

United States v. Miller, 146 F.3d 274 (5th Cir. 1998)

A deputy sheriff was patrolling the highway, looking for vehicles engaged in traffic violations so that he could pursue drug interdiction. The deputy observed the defendant driving a motor home with its left turn signal on, but the vehicle neither made a left turn, nor changed lanes. For this reason, the deputy pulled the defendant over. After issuing the defendant a warning citation, he asked for consent to search the vehicle and the defendant agreed. Eighty kilograms of marijuana were found. The district court admitted the evidence. The Fifth Circuit reversed: driving with a left turn signal on (without making a left turn at the first intersection) is not a violation of Texas law and there was, therefore, no basis for stopping the vehicle. The defendant’s consent to search was not valid in light of the illegal stop. The Court observed that the flip-side of the decision in Whren v. United States, 517 U.S. 806 (1996) (allowing the stop of a vehicle for a traffic-related offense, even if the real motivation of the officer is to search for drugs), is that only a valid objectively-grounded traffic-related detention can support such a stop.

United States v. Jones, 149 F.3d 364 (5th Cir. 1998)

The defendant’s vehicle, with fresh mud on it, was observed driving north, approximately 80 miles north of the Mexico – Texas border. The Fifth Circuit held that the evidence supporting the stop of the vehicle (and the discovery of marijuana) was insufficient. First, the court held that there was insufficient justification for believing that the vehicle had recently crossed the border. The court also noted, with considerable skepticism, the government’s argument that the reason that the Border Patrol agent was suspicious, was because the defendant did not look like a smuggler – thus raising the agent’s suspicion that he was a cleverly disguised smuggler. Also, the court rejected the government’s contention that the defendant was acting suspicious because he frequently glanced back at the agent, who was tailgating him for several miles, prior to the stop.

United States v. Salzano, 158 F.3d 1107 (10th Cir. 1998)

The defendant was stopped while driving a motor home. The officer initially stopped the vehicle because it strayed off the road. When the officer questioned the defendant, he found him to be nervous and also determined that the rental papers indicated that there were supposed to be three occupants (and the defendant was alone). The officer was also suspicious that the defendant had rented a motor home to drive across country and that the trip had originated in California. His suspicions were further aroused by the scent of evergreen in the vehicle. He requested permission to search the vehicle and the defendant declined. The officer then summoned a drug dog which arrived twenty-seven minutes later. The Tenth Circuit holds that the detention of the defendant for 27 minutes was not supported by an articulable suspicion and reverses the denial of the motion to suppress. The court declined to accept the government’s invitation to find more suspicion in the aggregate of these factors, than the sum of its parts: “It is impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation.”

United States v. Mesa, 62 F.3d 159 (6th Cir. 1995)

The defendant and a passenger in her car were stopped for speeding. The defendant was placed in the back of the patrol car which would not open from the inside. The officer issued the citation, but rather than letting the defendant out, he then questioned the two about their destination. He believed that they acted nervously, and gave slightly inconsistent stories about their reasons for travelling. He requested consent to search the car and though a drug dog did not alert, the search continued. Eventually, the police discovered cocaine in the back. This was an unlawful search. Once the traffic citation was issued, the police should have immediately released the defendant. This was an unlawful detention after the citation was issued. The Sixth Circuit has suggested, in a later opinion, that the Mesa decision is no longer good law, following the decision in Ohio v. Robinette, 519 U.S. 33 (1996). See UnitedStates v. Burton, 334 F.3d 514 (6th Cir. 2003).

United States v. Garcia, 23 F.3d 1331 (8th Cir. 1994)

The defendants were driving on the interstate in a rental car. The driver veered off the road onto the shoulder and a trooper pulled the vehicle over. The defendants were Hispanic. One defendant stated that they were moving to El Paso with furniture; the other stated that they were simply taking the furniture there. The trooper reviewed the defendants’ identification and received consent to search the cargo area of the vehicle which he did. He radioed in for a computer check of the defendants, but there was a delay in obtaining this report. He allowed the defendants to leave. Later, he received a report that one of the defendants had a prior firearms violation. He called ahead and asked that the vehicle be stopped again. He went to the scene and asked for further consent to search the car, which he obtained. This was an illegal stop. There was no basis for stopping the truck a second time. There was no information derived during the first stop which created an articulable suspicion justifying a second search – including the subsequent discovery that one of the defendants had a criminal record.

United States v. Rodriguez, 976 F.2d 592 (9th Cir. 1992)

The defendant, a Hispanic, drove on the Interstate past where two agents were sitting in their marked cars. The defendant did not acknowledge the agents’ presence and appeared nervous as he drove past. The officers testified that the car appeared to go over bumps “sluggishly” (thus indicating that it was weighted down with something). The court rejected these bases for stopping the vehicle: “In short, the agents in this case saw a Hispanic man cautiously and attentively driving a 16 year old Ford with a worn suspension, who glanced in his rear view mirror while being followed by agents in a marked Border Patrol car. This profile could certainly fit hundreds or thousands of law abiding daily users of the highways of Southern California.” The court concluded, “We are not prepared to approve the wholesale seizure of miscellaneous persons, citizens or non-citizens, who are seen driving any place near the Mexican border – driving with caution and circumspection – in the absence of well-founded suspicion based on particular, individualized, and objectively observable factors which indicate that the person is engaged in criminal activity.”

Nicacio v. United States Immigration Naturalization Service, 797 F.2d 700 (9th Cir. 1986)

The I.N.S. could not stop the vehicle to search for illegal aliens merely based upon the appearance and dress factors such as Hispanic appearance, work clothing, dirty, unkempt appearance and “lean and hungry look.”

United States v. Salzano, 158 F.3d 1107 (10th Cir. 1998)

The defendant was stopped on the interstate, driving a motor home, after it strayed onto the shoulder. The trooper detained the defendant for twenty-seven minutes while awaiting the arrival of a drug dog. The information known to the trooper did not amount to an articulable suspicion. The information upon which the government relied to justify the stop were: the driver was nervous; the unusual decision to rent a mobile home to drive across country; the fact that there was more than one person listed on the rental agreement, but the defendant was alone; and other innocuous factors.

United States v. Wood, 106 F.3d 942 (10th Cir. 1997)

The defendant was pulled over on I-70 for speeding. The driver rented the car in California and said that he was unemployed, but was enjoying the drive back to Topeka, after traveling to California with his sister. He appeared nervous. The trooper determined that he had a narcotics conviction. This was not sufficient information to justify a detention of the vehicle while waiting for a drug dog to arrive. The court noted that the presence of fast-food wrappers in the car, as well as maps on the passenger seat did not add to the articulable suspicion calculus.

United States v. Gregory, 79 F.3d 973 (10th Cir. 1996)

The defendant was driving on I-70 in Utah when he was observed by a trooper weaving over the shoulder line. The defendant was stopped and following a brief encounter, consented to a search of his vehicle. The trooper’s stop of the vehicle was not lawful. Weaving over the shoulder line one time is not an offense under Utah law and there was insufficient evidence that the defendant was DUI or was a danger to the public. In this case, moreover, the ensuing consent was not untainted by the illegal stop. The court concluded that it was evident that, from the moment the vehicle was stopped, the trooper’s sole interest was in viewing the contents of the vehicle.

United States v. Angulo-Fernandez, 53 F.3d 1177 (10th Cir. 1995)

The police approached the defendant who was on the side of the road with his car which was apparently disabled. After a brief discussion, the officer requested the registration for the vehicle, as well as the defendant’s driver’s license, which was provided. There were no problems in the “records check.” The evidence did not reveal whether the officer then returned the documentation to the defendant. The officer did request an opportunity to search the car, however. A search revealed a considerable quantity of cocaine. The trial court erroneously failed to decide whether the consent was voluntary, in light of the length of the preceding encounter, and did not indicate whether the defendant was in possession of his documents, and thus free to leave.

United States v. Jones, 44 F.3d 860 (10th Cir. 1995)

In this case, where the defendant was stopped on the highway and questioned, one of the reasons that the officer testified that he had an articulable suspicion that the car was carrying contraband was that the driver did not appear nervous, suggesting that she had prior experience with being stopped. The Tenth Circuit agreed that this was a factor which the officer could consider in assessing whether there was an articulable suspicion justifying further investigation.

United States v. McSwain, 29 F.3d 558 (10th Cir. 1994)

A trooper stopped the defendant’s vehicle because it was unclear whether his temporary tag had expired. Upon approaching the vehicle, it was immediately apparent to the trooper that the tag had not expired. Nevertheless, the trooper questioned the defendant about his itinerary and requested to see his license and registration. The trooper then asked his dispatcher to run a computer check on the defendant, which revealed a record for drug and gun violations. The trooper returned to the defendant and asked for permission to search the vehicle, which the defendant gave. This was an invalid consent, based on a stop which exceeded the scope of a permissible Terry stop. By the time the trooper asked for the defendant’s identification and registration, he had already dispelled all basis for the stop – the temporary tag’s expiration date.

United States v. Sandoval, 29 F.3d 537 (10th Cir. 1994)

The defendant was stopped for speeding. He produced his license and registration, which was checked and came back normal. After returning the paperwork to the defendant, the defendant asked if “that is it?” to which the officer responded, “No, wait a minute.” The officer decided to ask the defendant some additional questions about his criminal background (he learned during the license check about an arrest for a narcotics violation several years earlier). This questioning amounted to an additional detention, which was not supported by an articulable suspicion. The fact that the defendant had an earlier arrest – and no conviction – for a drug offense, does not justify a Terry stop of any duration. Even though the defendant then gave consent to search the car, this consent occurred after the detention had become unlawful and it was, therefore, not a free and voluntary consent. The evidence should have been suppressed.

United States v. Fernandez, 18 F.3d 874 (10th Cir. 1994)

The defendant was stopped on the interstate, because the trooper considered the tinted windows to be in violation of state law and for improper lane travel. The trooper examined the driver’s license and issued a citation. However, rather than allowing the defendant to proceed, the trooper held the identification and questioned the driver and then asked for consent to search the car. The search yielded 121 kilograms of cocaine. The Tenth Circuit concluded that there were insufficient facts to support the detention of the defendant beyond the time necessary to examine the license and issue the citation (i.e., nervousness and “unusual behavior”). The subsequent consent to search the vehicle was tainted by the unlawful detention. Among other factors considered in determining whether the consent was free and voluntary was the trooper’s failure to advise the defendant that he had the right to refuse.

United States v. Walker, 941 F.2d 1086, on rehearing from 933 F.2d 812 (10th Cir. 1991)

The defendant was stopped for speeding. The officer then began questioning the defendant about contraband. While holding the defendant’s license and registration in his hand, the officer then asked for permission to search the car. Though the defendant consented, the search was invalid. The continued detention of the defendant beyond the time necessary to issue the speeding ticket was not based on any articulable suspicion and the only issue for remand was whether the consent was invalid in light of the illegal detention.

United States v. Valdez, 931 F.2d 1448 (11th Cir. 1991)

Police were following a car which they believed contained narcotics. The car made a right turn at a red light which caused a car coming from the left to slow down. The police followed the car another eighteen blocks and then stopped the vehicle for the traffic offense of interfering with another car’s right-of-way. This was an invalid pretext stop. The officer who made the stop testified that he had been told by narcotics officers to follow the car and make a stop. “In determining when an investigatory stop is unreasonably pretextual, the proper inquiry is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.” This case would probably be decided differently after Whren v. United States, 517 U.S. 806 (1996).

United States v. Campbell, 920 F.2d 793 (11th Cir. 1991)

The police received a tip from an informant that the defendant would be hauling marijuana into Montgomery, Alabama in a particular pickup truck. When the truck arrived at the designated location, the police arrested the occupants and brought the pickup to the police station where it was sniffed by one dog who did not alert, then another dog, who did. The defendant then consented to a search of the car. The search was illegal. The information supplied by the informant was not sufficient to rise to the level of probable cause. At most, pursuant to Alabama v. White, the police had sufficient information to conduct an investigatory stop. Here, however, the length of the detention was beyond a mere Terry stop. The consent was clearly the product of the illegal detention.

United States v. Tapia, 912 F.2d 1367 (11th Cir. 1990)

The defendant was stopped on Interstate 59 travelling towards Birmingham, Alabama. The officer claimed to have had a reasonable suspicion based on the fact that the vehicle had out-of-state plates, the driver was Mexican and appeared to be nervous or shaking during the initial confrontation with the trooper. The officer also stated that the vehicle appeared to have few pieces of luggage. This does not constitute “reasonable suspicion” and did not justify the detention of the driver and the subsequent consent form signed by the defendant was invalid.

United States v. Strickland, 902 F.2d 937 (11th Cir. 1990)

The defendant consented to a search of his vehicle, including consent to search the trunk and luggage. This did not, however, include permission to slash his spare tire to investigate its contents. Nevertheless, what the police learned from their lawful search was sufficient to give them probable cause to continue the search and thereby discover the contraband. The court holds that when a person gives a general statement of consent to search without express limitations, the scope of the search is, nevertheless, not limitless. Rather, it is constrained by the bounds of reasonableness: What police officers can reasonably interpret the defendants consent to have encompassed.

United States v. Miller, 821 F.2d 546 (11th Cir. 1987)

The Eleventh Circuit follows the Smith decision in holding that this highway stop was a mere pretext to search for drugs because of the occupants’ fitting the drug courier profile on the highway.

United States v. Smith, 799 F.2d 704 (11th Cir. 1986)

The Eleventh Circuit holds that a highway stop by Trooper Vogel was clearly a pretextual stop. Though the officer stated that there may have been a one inch weave over the center line, the Court finds that the sole purpose of the stop was a search for drugs which was not supported by any articulable suspicion or probable cause.