Search and Seizure - Terry Stop – Prolonged Duration, or Improper Nature, of Seizure

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.

Hiibel v. Sixth Judicial Dist. Court of Nev., 124 S.Ct. 2451 (2004)

The Supreme Court held that the police may require a person to identify himself if he is the subject of a lawful Terry stop; and if he fails to do so, he may be charged and convicted of a “refusal to identify” state offense. In this case, the police suspected that the defendant had been involved in a fight and they approached him and asked him to identify himself. He refused. The Court emphasized that requiring the suspect to identify himself was reasonably related to the basis for the initial detention and thus was a permissible extension of the Terry stop.

Maryland v. Wilson, 519 U.S. 408 (1997)

The police may direct a passenger to exit a vehicle where the car has been stopped for a legitimate reason.

Ohio v. Robinette, 519 U.S. 33 (1996)

If a lawful traffic stop has been made and the basis for the traffic stop has been accomplished, the police may then request consent to search the vehicle without announcing to the driver that he is free to leave.

Arizona v. Johnson, 555 U.S. 323 (2009)

If the police stop a vehicle lawfully and there is a passenger in the vehicle, if the police have a reason to believe the passenger is armed and dangerous, he may be frisked. This is true, even if the passenger is not believed to have committed any crime.

United States v. Dapolito, 713 F.3d 141 (1st Cir. 2013)

At approximately 2:00 a.m., the police saw the defendant standing in the alcove of a building in downtown Portland, Maine. When questioned, he gave rambling sometimes incoherent answers to questions. When the police called dispatch to determine whether there were any warrants, the response was negative. There was insufficient information to believe that he was engaged in any criminal activity or that he was wanted in any jurisdiction. The encounter, which lasted twenty minutes, and ultimately involved several officers, rose to the level of a detention when he was repeatedly asked to produce identification and to consent to a search, which he refused. The resulting frisk was the product of this 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. Zavala, 541 F.3d 562 (5th Cir. 2008)

The police may not flip open and examine a motorist’s cell phone during a Terry stop. A Terry stop pemits a brief frisk to ensure officer safety and not an investigation into the contents of a cell phone, including looking for the subscriber number. In a separate holding, the court held that a Terry stop that lasted 90 minutes was too long and was converted into a de facto arrest, for which there was no probable cause.

United States v. Askew, 529 F.3d 1119 (D.C.Cir. 2008) en banc

The police brought a defendant back to the scene of a robbery and unzipped his jacket so the witness could view his clothing under the jacket. Over the course of a forty-five page opinion which represents an encyclopedic review of Terry jurisprudence, the D.C. Circuit, en banc, held that this amounted to a search for Fourth Amendment purposes. The Court suggested that in some circumstances, unzipping a defendant’s jacket may be permissible, but that there was insufficient information known to the police in this case to justify this procedure. The Court relied principally on Minnesota v. Dickerson, 508 U.S. 366 (1993), in holding that a protective “search” or frisk, is limited to what is necessary to achieve the goal of officer safety, not crime investigation.

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. Virden, 488 F.3d 1317 (11th Cir. 2007)

The police stopped the defendant’s car after watching it leave the location where a search was about to occur. Because a drug dog was not available at that location, the police put the defendant in a police car in handcuffs and brought the car to a location two miles away where the dog was located. The Eleventh Circuit held that this exceeded the bounds of a Terry stop and amounted to a seizure requiring probable cause. Because there was no probable cause, the search of the car was unlawful.

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. Lopez, 443 F.3d 1280 (10th Cir. 2006)

The police approached the defendant and his colleague who were standing next to their car. There was no articulable suspicion that prompted the police to approach the two individuals. Approaching them, of course, was nothing more than a consensual encounter. However, the officer then requested that the two individuals give him any identification documents that they had (i.e., ID card, or driver’s license). The officer took the ID’s back to his car and determined that one of the two had an outstanding warrant. The Tenth Circuit held that the evidence discovered during an ensuing search should have been suppressed. There was no basis for detaining the two individuals and taking the ID’s amounted to a detention. While the police may request a person’s identification without detaining him, once the officer takes the ID with him to another location (i.e., back to his car), this amounts to a detention.

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 that 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. Washington, 387 F.3d 1060 (9th Cir. 2004)

The police went to the defendant’s residential hotel room and knocked, with the expectation of gaining the defendant’s consent to search the premises. But the defendant stepped outside the door when the police knocked and closed the door behind him. The police (six of them) repeatedly asked for permission to go in the apartment and reminded the defendant that he could be arrested on an unrelated matter. Eventually, the officers made their way inside and ultimately convinced the defendant to consent to a search. The Ninth Circuit found these Fourth Amendment violations: First the officers exceeded a Terry stop in the hallway; then they violated the defendant’s rights by not allowing the door to remain closed; then they violated his rights by entering the apartment without his consent; and finally, they violated his rights by moving his jacket to find a small amount of methamphetamine. His subsequent consent to search was tainted by all of these previous violations.

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. Portillo-Aguirre, 311 F.3d 647 (5th Cir. 2002)

After the Border Patrol Agent completed his work of ascertaining bus passengers’ immigration status, he would routinely ask about drugs. The court held that a Border Patrol Agent is free to engage in questions about drugs, as long as the questions do not extend the time it takes to conduct the legitimate immigration status check. Once the immigration inquiry is finished, however, any further questioning amounts to a detention without articulable suspicion. See also United States v. Dortch, 199 F.3d 193 (5th Cir. 1999). Note that Dortsch has been limited in its reach. United States v. Pack, 622 F.3d 383 (5th Cir. 2010).

United States v. Acosta-Colon, 157 F.3d 9 (1st Cir. 1998)

Though the agents had an articulable suspicion justifying the detention of the defendants at the airport after a drug dog alerted to what the agents believed was the luggage of the suspects’ companions, the thirty-minute detention, during which time the defendants were handcuffed and missed their flight went too far and amounted to an arrest which required probable cause.

United States v. Babwah, 972 F.2d 30 (2d Cir. 1992)

The police had an articulable suspicion justifying the stop of defendant’s vehicle. However, after the stop and a consent search, there was no basis for continuing the detention. Nevertheless, the police ordered the defendant to return to a house where a large amount of cash was found. This latter aspect of the “stop” amounted to an arrest which was not supported by probable cause.

United States v. Cagle, 849 F.2d 924 (5th Cir. 1988)

Border patrol agents seized a passenger’s suitcase and prevented it from being loaded on the passenger’s airline flight. This constitutes a full-scale arrest and not just a detention because the passenger’s itinerary was clearly frustrated. The officers failed to use the most diligent, least intrusive investigatory techniques.

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 reasons for traveling. 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 United States v. Burton, 334 F.3d 514 (6th Cir. 2003).

United States v. Obasa, 15 F.3d 603 (6th Cir. 1994)

Law enforcement agents approached a passenger who exited a flight from New York to Cincinnati. It was clear that the passenger was with another passenger, as well, who was the defendant in this case. After questioning the initial passenger, the police had an articulable suspicion that the pair was engaged in credit card fraud, but there was no probable cause to make an arrest, however. When the police looked for the defendant, he had disappeared. He was located in a taxi on the Interstate, leaving the airport. He was stopped, put in a patrol car and brought back to the airport. The Sixth Circuit concludes that the confrontation on the highway amounted to an arrest and, because not based on probable cause, was in violation of the defendant’s Fourth Amendment rights. This is so, even though the defendant had fled the airport and, when initially approached by the police, denied that he had even been at the airport.

United States v. Richardson, 949 F.2d 851 (6th Cir. 1991)

The police approached the defendant who was standing outside a storage unit which the police believed contained contraband. They asked for his consent to search the unit; the defendant refused. He was placed in the back of the patrol car and told to wait there while the officers questioned defendant’s colleague. This amounted to an arrest of the defendant and his subsequent consent to search the storage unit was tainted by this unlawful arrest. In light of the statements of the officers and the circumstances, this was more than a mere Terry stop.

United States v. Ricardo, D., 912 F.2d 337 (9th Cir. 1990)

The Ninth Circuit concludes that the detention of the juvenile during field questioning amounted to a de facto arrest. The juvenile was patted down, gripped by the arm, told he was not to run, and directed to the back of one of two patrol cars present at the scene. This conduct transformed the investigatory stop into an arrest.

United States v. Thomas, 863 F.2d 622 (9th Cir. 1988)

A police officer pulled over the defendant on the basis that he apparently matched the description of a counterfeiting suspect. After the officer blocked the defendant’s car, the defendant exited the car and approached the officer. It was immediately apparent that the defendant did not meet the description. Nevertheless, the officer frisked and continued to question the defendant. The continuing detention was unlawful once it was determined that the defendant did not meet the suspect’s description. There was no basis for the police officer to fear for his safety.

United States v. Robertson, 833 F.2d 777 (9th Cir. 1987)

An officer’s detention of a defendant at gunpoint was an arrest, not a Terry stop. The defendant was confronted by seven to ten police officers at the time of this “encounter.” At no time did the officers check the defendant for weapons, indicating that they knew or suspected that she was not armed, and thus this was not a stop and frisk.

United States v. Edwards, 103 F.3d 90 (10th Cir. 1996)

The police were about to execute a search warrant at a house when they observed the defendant, known to be a felon who was in drug rehabilitation, leave the house. His vehicle was pulled over and a brief search revealed nothing. The police then detained him for 45 minutes on the side of the road while the house was searched. Though the initial detention was lawful, the length of the detention exceeded what is permissible for a Terry stop. However, the court concluded that no evidence was obtained as a fruit of this unlawful stop so there was nothing to suppress.

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. Melendez-Garcia, 28 F.3d 1046 (10th Cir. 1994)

Though the information known to the police provided them with an articulable suspicion, it did not amount to probable cause. When the officers stopped the defendants in the car, however, the officers had weapons drawn, ordered the defendant to throw the keys out of the window and exit the car with hands visible. The defendants were then handcuffed, separated and placed in seatbelts in separate patrol cars. This exercise of force exceeded that which is permissible under Terry. The officers offered no explanation why this amount of force was needed: there was no evidence that the defendants were armed, dangerous, or otherwise deserving of this degree of intrusiveness. A remand was necessary to determine whether a consent to search represented an exploitation of this illegal arrest.

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. King, 990 F.2d 1552 (10th Cir. 1993)

The police approached defendant’s car which was blowing its horn in a traffic jam and noticed a loaded gun on the front seat. Having a loaded gun is legal in New Mexico. The police drew their weapons and ordered the occupants of the vehicle to exit the car. One occupant discarded cocaine in the process and cash was found in the car. While the police might have been justified in attempting to separate the occupants from the gun, the conduct of the police in this case amounted to an arrest. Because there was no probable cause, the fruits of this arrest should have been suppressed. The actions of the police also did not qualify under the Cady v. Dombrowski community caretaking function.

United States v. Millan-Diaz, 975 F.2d 720 (10th Cir. 1992)

The border patrol agent claimed to have stopped defendant’s vehicle because of his suspicion that the defendant was smuggling illegal aliens across the border. After approaching defendant’s vehicle, however, he determined that the defendant was the only occupant of the car. Because the “suspicion” evaporated upon approaching the vehicle, the subsequent detention was not based on an articulable suspicion, and both the search of the car and the discovery of marijuana in the car were tainted by the illegal stop.

United States v. Codd, 956 F.2d 1109 (11th Cir. 1992)

Believing that the defendant had participated in her husband’s escape from a federal prison camp, the police detained her at the Houston airport for 2-1/2 hours. This exceeded the scope of a lawful Terry stop and the search of her purse during this time was unlawful. The district court properly suppressed the evidence.