At times, uniform patrol officers are asked by narcotics agents to conduct traffic stops on suspected drug traffickers. In some circumstances, the narcotics agent requesting the traffic stop wants the officer to develop his own legal justification to stop the car in order to prevent jeopardizing some larger drug investigation. It is then up to the patrol officer to find a lawful reason to stop the car and conduct a lawful search, whether by consent, the use of a canine or some other exception to the warrant requirement.
On January 3, 2013, the Fifth Circuit Court of Appeals decided the United States v. Andres [i], which is instructive on various issues related to this type of stop. In Andres, federal agents were conducting a large drug investigation that involved wire taps, surveillance and confidential informants. The agents had already seized large quantities of cocaine. On December 11, 2009, agents observed suspects load approximately 20 kilograms of cocaine into a red pickup truck that was towing a trailer. The suspects then parked the vehicle on a public street in front of a Holiday Inn. The agents then secretly installed a GPS tracking device on the truck.
Over a period of two days, agents tracked the truck using the GPS device as it drove toward Chicago. As the truck neared Illinois, a federal agent contacted a supervisor with the Illinois State Police and told him to expect a call from a confidential informant (CI) regarding the truck at issue. The CI called the state police supervisor and gave him the location of the vehicle several times, explaining that it contained narcotics but not mentioning the large investigation in Texas. The police were to find a lawful reason to stop the vehicle and conduct an independent investigation as to whether drugs were being transported.
On December 14, 2009, a team of Illinois State Police officers were stationed along the interstate waiting for the arrival of the red pickup truck at issue. When the vehicle was spotted, an officer observed that the vehicle was weaving and the tail lights on the trailer were flickering as if defective. The officer stopped the truck. It was later determined that the officers in-car video camera did not start until after the stop and the violations at issue were not recorded on video.
The details of the stop, taken directly from the case, are as follows:
Brody approached Andres, who was driving the truck, and requested his driver’s license, registration, and insurance. Brody returned to his car and ran a check on Andres’ license. Brody determined that Andres had a valid license, a clean driving record, and no outstanding warrants, and decided to issue a written warning for the traffic offenses. Brody wrote a warning ticket and returned to the truck to speak with Andres. Brody asked Andres to get out of the truck so that he could talk to Andres about the taillight problem. Andres inspected the electrical connection between the truck and the trailer. Brody told Andres that he would give him a warning ticket and handed him a clipboard to sign the ticket.
While Andres was signing the ticket, Brody asked him where he was coming from. Andres replied that he was coming from Joliet, where he had dropped off a car. However, Brody knew that Simington had spotted the truck south of Joliet, and that Andres would not have had time to stop in Joliet. Brody also observed at this point that Andres began to fidget and move his feet and arms around, which Brody interpreted as nervousness. Brody asked Andres who was in the truck with him. Andres responded that it was his stepdaughter, but he did not know her last name. Brody then patted down Andres, checked inside his jacket for weapons, and went to talk to the passenger, Noemi Gutierrez (“Gutierrez”). She stated that she and Andres had come from Joliet, where they had dropped off a van on Ruby Street.
Brody returned to speak to Andres and asked him if he had any drugs in the truck. Andres denied that he did, and said “go ahead and check.” Brody asked permission to search for drugs with his dog, and Andres consented. The dog alerted to the presence of drugs within about thirty seconds. Officers ultimately found over twenty kilograms of cocaine in a hidden compartment in the truck. [ii]
Andres was charged with federal drug offenses. He filed a motion to suppress in district court which was denied. He was then convicted at bench trial and filed a timely appeal of his motion to suppress.
Andres argued three issues on appeal. The issues were as follows:
(1) Whether the initial stop was unconstitutional because it was pretextual?
(2) Whether the officer unreasonably expanded the scope of the original traffic stop by his continued questioning and canine sniff?
(3) Whether the warrantless use of the GPS to track his movement over several days was an unreasonable search or seizure?
As to the first issue regarding the validity of the “pretextual” stop, the court first noted that:
[A]n officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred, or is about to occur, before stopping the vehicle. [iii] [internal citation omitted]
Here, the Fifth Circuit noted that the district court credited the officer’s testimony that he observed the weaving and the flickering tail lights, both violations of Illinois traffic law. As such, the Fifth Circuit upheld the district court’s determination that the stop was lawful, despite the officer’s ulterior motive of conducting a drug investigation.
Additionally, while not mentioned in the opinion, it bears mention that the United States Supreme Court, in Whren v. United States [iv], held that as long as an officer has an objective reason (i.e.: a traffic violation) to stop a vehicle, the stop is reasonable under the Fourth Amendment, even if the officer has an ulterior motive to investigate some other unrelated crime and even if the officer ordinarily would not have conducted a traffic stop for the traffic offense at issue.
The second issue was whether the officer unreasonably expanded the scope of the original traffic stop by his continued questioning and canine sniff. The court noted the relevant rule regard this issue is that:
A traffic stop “must be temporary and last no longer than is necessary to effectuate the purpose of the stop, unless further reasonable suspicion, supported by articulable facts, emerges.” United States v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004)(en banc). “If the officer develops reasonable suspicion of additional criminal activity during his investigation of the circumstances that originally caused the stop, he may further detain [the] occupants [of the vehicle] for a reasonable time while appropriately attempting to dispel this reasonable suspicion.” United States v. Pack, 612 F.3d 341, 350 (5th Cir. 2010). [v]
The court also recognized that questioning about unrelated matters only violates the Fourth Amendment when the questioning extends the traffic stop longer than necessary to deal with the original traffic violation. If it does extend the length of the stop, then the court must determine if additional reasonable suspicion existed to justify the additional detention. As to this issue, the court stated:
We do not find it unreasonable that an officer who has stopped a driver based on code violations and safety concerns involving a trailer would ask the driver to exit the vehicle to look at the trailer and discuss the problems. Furthermore, we agree that Brody’s question asking where Andres was driving from occurred before Brody had finished dealing with the traffic offenses and did not extend the scope or duration of the stop. Andres’ untruthful answer created further suspicion justifying continued detention, and his subsequent answers created even further suspicion. Based on this reasonable suspicion, Brody continued to investigate, ultimately requesting and receiving permission to search the truck. Because Brody’s continued search and seizure beyond the scope of the initial traffic stop were justified by additional reasonable suspicion, the district court did not err in concluding that the scope of the stop was reasonable. [vi]
The final issue was whether the warrantless use of the GPS to track his movement over several days was an unreasonable search or seizure. The court first noted that in 2012, the United States Supreme Court decided the United States v. Jones [vii], which addressed the issue of warrantless GPS tracking of vehicles over an extended period of time. The court stated:
In United States v. Jones, 132 S. Ct. 945, 949, 181 L. Ed. 2d 911 (2012), the Supreme Court held that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.'” Although Jones did not reach the issue of whether warrantless GPS searches are unreasonable, “[w]arrantless searches are per se unreasonable under the Fourth Amendment, subject to a few specific exceptions.” United States v. Mata, 517 F.3d 279, 284 (5th Cir. 2008). [viii]
Andres argued that the warrantless placement of the GPS violated the Fourth Amendment and the resulting discovery of the drugs should be suppressed as fruit of the poisonous tree.
However, the court noted that the Supreme Court has held that:
[S]earches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule. Davis v. United States, 131 S. Ct. 2419, 2423-24, 180 L. Ed. 2d 285 (2011). [ix]
The court then noted that the search and arrest of Andres occurred in December of 2009, and at that time, precedent in the Fifth Circuit allowed the warrantless placement of tracking devices based upon reasonable suspicion. The court stated:
We need not decide whether warrantless GPS searches are per se unreasonable. Furthermore, we need not decide whether the agents in this case acted without a warrant or whether the drug evidence is derived from the GPS search. Even assuming that a Fourth Amendment violation occurred and that suppression would otherwise be appropriate, the evidence should not be suppressed in this case because the officers acted in reasonable reliance on circuit precedent. [x]
Therefore, the court of appeals affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] 703 F.3d 828 (2013)
[ii] Id. at 5-6
[iii] Id. at 9
[iv] 517 U.S. 806 (1996)
[v] Id. at 10-11
[vi] Id. at 13-14
[vii] 132 S. Ct. 945, 949, 181 L. Ed. 2d 911 (2012)
[viii] Id. at 14
[ix] Id. at 16
[x] Id. at 15-16