From the Classroom
By Raymond Hill
Professor Emeritus, Santa Rosa Junior College
Time and Detentions Part I – The Basics
This From the Classroom series will be in two parts. The first, Time and Detention –The Basics, will explore past precedent. Second, Time and Detentions – Recent Cases, will explore three cases decided in 2023 in which the prosecution lost two and won one.
The general rule is that an officer may detain a person for as long as is reasonably necessary to accomplish the purpose of the investigation (U.S. v. Sharpe (1985) 470 U.S. 675). The Sharpe court declined to set a “bright line” rule for time stating that “common sense and ordinary human experience must govern over rigid criteria.”
So, for felony and misdemeanor investigations, time is governed by investigative need, investigative justification, and officers pursuing investigation in a diligent manner.
What do you need to do to determine if criminal activity has occurred? Is what you are doing a standard police practice in investigation? You may have to multi-task in moving through your investigation (or as my colleague Bob Phillips would say, “Don’t dillydally!”)
Traffic Infraction Stops
For the purpose of examining time and traffic stops, we are pre-supposing the stop is for a traffic infraction, standing alone, and initial contact does not reveal plain view, plain smell, or other driver/occupant activity pointing to reasonable suspicion to investigate a separate criminal violation.
Defense counsel is very familiar with the “fundamentals” of traffic stops and the time it takes to complete these tasks. These fundamentals include: If the vehicle is in an unsafe location, require a driver to proceed to a safer location before investigating further; officer introduction and explanation of violation; ordering the driver to exit the vehicle or remain in the vehicle (Pennsylvania v. Mimms (197) 434 U.S. 106, Maryland v. Wilson (1997) 519 U.S. 408); listening to the driver’s explanation and follow-up discussion; obtaining and examining driver’s license and vehicle registration; running a record/warrants check (“Criminal history and warrant checks are part of the mission of a traffic stop – U.S. v. Hylton (2022) 9USCA U.S. App. Lexis 9082); confirming the proper CVC section and subsection on lesser-encountered violations; completing a citation and obtaining the driver’s promise to appear; or issuing a verbal warning.
Asking questions about the presence of weapons in the vehicle while the officer was waiting for backup was reasonable. Officer safety is necessarily related to a traffic stop (U.S v. Buzzard (2021) 4th Circ. 1 F 4th 198).
Years back, the California Supreme Court decided Peo. v. McGaughran (1979) 25 Cal. 3d 577. This was a Marin County case where the officer extended the detention for 10 minutes after the purpose of the stop was completed. The delay was caused by the computer system being temporarily down, preventing a check from being completed quickly. When the system awakened, there was an outstanding burglary warrant, the subject was arrested, and a car search revealed burglary evidence. The court ruled that this delay was unlawful because the purpose of the traffic stop had been completed and the driver should have been sent on his way.
The U.S. Supreme Court has also spoken on prolonged detentions. A Nebraska officer stopped the defendant’s vehicle for a traffic violation. After obtaining a driver’s license, registration, and proof of insurance, the officer returned to his patrol car, ran a warrants check, called for backup, and wrote a citation. By the time he returned to the defendant’s car, 30 minutes had passed. The officer then asked for consent to search the car. This was denied. The officer ordered the defendant to exit the car and had him wait in front of the patrol car. A K-9 officer arrived and walked his dog around the defendant’s car. By this time, 40 minutes had elapsed. The dog alerted and a “large bag” of meth was found inside the car. The court ruled that the detention was unduly prolonged: “A traffic detention can last no longer than necessary, which means it must be terminated when tasks tied to the traffic infraction are or reasonably should have been completed” (Rodriguez v. U.S. (2015) 575 U.S. 348). Similarly, in another case, extending a detention 18 minutes to get a drug-sniffing dog to the scene was ruled to be improperly prolonged (Peo. v. Espino (2016) 247 Cal. App. 4th 746).
In another case, officers made a pretext traffic stop to conduct a drug investigation. Instead of going through the “fundamentals” of a traffic stop, a prearranged dog handler was called to the scene. Eighteen minutes later, the dog arrived on scene and alerted. The court ruled the officers abandoned the original reason for the stop and unduly prolonged the detention (Peo. v. Ayon (2022) 80 Cal. App. 5th 926).
On the Other Hand
Contrast these decisions with U.S. v. Caballes (2005) 543 U.S. 465: It was not considered a prolonged detention to walk a drug-sniffing dog around a car while the “fundamentals” of a traffic stop were being conducted. “We reject the notion that the shift in purpose from a lawful traffic stop into a drug investigation is unlawful because the drug investigation is not supported by any reasonable suspicion.” Similarly, a canine sniff did not unconstitutionally prolong the traffic stop where one officer used a police dog to sniff the defendant’s vehicle while a second officer started writing the citation. The officer had not completed the citation when the dog alerted (People v. Vera (2018) 28 Cal.App.5th 1081).
Realistically, you have around 10 minutes, plus or minus a minute or so, to complete the mission of the infraction stop (Peo. v. Carter (2005) 36 Cal. 4th 1114).
Scenario One: You are conducting your “fundamentals” and after the introduction and document examination phases, you ask about criminal record, gang affiliation, or probation/parolee status. Is this a proper inquiry?
“The expanded questioning need not be supported by separate reasonable suspicion” (Florida v. Bostick (1991) 501 U.S. 429; Ohio v. Robinette (1997) 501 U.S. 429).
“An officer’s inquiries into matters unrelated to the justification for a traffic stop, this court has made plain, do not convert the encounter into something other than a lawful seizure, as long as the inquiries do not unnecessarily extend the duration of the stop” (Arizona v. Johnson (2009) 555 U.S. 323).
Las Vegas police officers stopped the defendant’s vehicle for a registration violation. While a warrants check was being conducted, one officer asked the defendant about gang tattoos on his arms. The defendant admitted to past gang involvement and to spending prison time in Illinois for a weapons violation. The officer asked if there were any weapons in the car. The defendant admitted there was a firearm in the driver’s door pouch. A search recovered a loaded, semi- automatic pistol. Questioning about crimes unrelated to the purpose of a traffic stop is lawful as long as the questioning doesn’t prolong the time beyond that necessary for the initial detention (U.S. v. Mendez (2007) 498 F 3d 323).
Scenario Two: After conducting your initial “fundamentals” and while a records/warrants check is being run, you ask for a consent search. Is this a proper inquiry?
Again, most definitely:
The defendant was stopped for riding a bicycle at night without a light. The officer conducted a warrants check. While waiting for the return, the defendant consented to a search and a film canister containing methamphetamine was found in his fanny pack. The entire transaction took several minutes. A warrant check during a traffic stop is permissible as long as the information is returned within a reasonable time. The request for a consent search during this allowable time period didn’t unduly prolong the detention (Peo. v. Brown (1998) 62 Cal. App. 4th 496)
Another defendant’s vehicle was stopped for having a broken taillight. He consented to a search and drugs were found in his car. An officer may ask for consent to search during a traffic infraction stop. The officer’s subjective thoughts or intentions of other criminal activity are irrelevant. Only two minutes elapsed between initial contact and the request for consent. Mere questioning is not a search or seizure (Peo. v. Gallardo (2005) 130 Cal. App. 4th 234).
In Ohio, a deputy sheriff stopped the defendant’s vehicle for speeding, gave a verbal warning, and returned his driver’s license. The deputy then asked the defendant whether he was carrying any illegal contraband, weapons, or drugs in his car. Defendant replied, “No” and consented to a search where drugs were found. An officer doesn’t need to inform a driver that he or she is “free to go” before asking for a consent search. The fact that the deputy’s request “may ensure that many motorists will wind up consenting to a far broader search than they might have imagined” doesn’t invalidate otherwise voluntary consent (Ohio v. Robinette (1997) 501 U.S. 429).
For more detail, see Robert Phillips’ “The Fourth Amendment Search and Seizure – An Update,” 23rd Edition, Prolonged Detentions, Pages 342-359.
From an instructional perspective, the point I wish to make is please handle your preliminary traffic stop “fundamentals” first: Introduction and explanation of violation; order the driver to exit the vehicle or remain in the vehicle; listen to the driver’s explanation and discussion; obtain and examine driver’s license and vehicle registration.
Then as you or your partner proceed to run a records/warrants check, ask about criminal history, gang affiliation, probation/parole status, etc. Let your body-worn camera record that you didn’t abandon the original purpose for the traffic stop before embarking on other investigative questioning.
If the situation dictates, ask for a consent during the records/warrants check or before completing the citation/warning process. The time taken for a warrants check is reasonable even though the officer never intended to write a citation (Peo. v. Brown (1998) 62 Cal. App. 4th 493).
You can hunt for additional criminal activity during a traffic stop, but until such time as new reasonable suspicion arises, always keep the original mission of the traffic stop in mind.