||VEHICLE CONSENT SEARCHES – PART ONE: ELEVENTH CIRCUIT HOLDS QUESTIONS UNRELATED TO TRAFFIC STOP UNREASONABLY PROLONGED STOP

VEHICLE CONSENT SEARCHES – PART ONE: ELEVENTH CIRCUIT HOLDS QUESTIONS UNRELATED TO TRAFFIC STOP UNREASONABLY PROLONGED STOP

United States v. Campbell, No. 16-10128 (11th Cir. January 8, 2019)

Held:  A stop is unlawfully prolonged when an officer, without reasonable suspicion, diverts from the stop’s purpose and adds time to the stop in order to investigate other crimes.

The case and holding above is important as it will change the methods by which law enforcement officers conduct traffic stops when they wish to seek consent to search a vehicle.

The relevant facts of Campbell, taken directly from the case, are as follows:

At about 9:00 pm on a brisk night in December 2013, Deputy Sheriff Robert McCannon was patrolling Interstate 20 in Georgia when he observed a Nissan Maxima cross the fog line. McCannon activated the camera on the dashboard of his patrol car, and after observing the Maxima cross the fog line a second time and noticing that its left turn signal blinked at an unusually rapid pace, he pulled the car over…”[i]

The court also included a summary of the incident as observed on the patrol vehicle dash camera.  It is important to include for the sake of a complete understanding of the sequence of the events that make up the facts of the case.  The summary is as follows:

  • 0:00: McCannon activates the camera.

  • 2:05-16: McCannon provides the Sheriff’s Office dispatcher with the car’s license plate number. The dispatcher runs the number and informs him that it belongs to Erickson Campbell, an “active felon.”

  • 2:31: McCannon activates his patrol car’s flashing lights.

  • 2:36-58: Campbell pulls over.

  •  3:25-32: McCannon approaches the car from the passenger side and requests Campbell’s driver’s license.

  •  3:34-4:42: McCannon explains to Campbell that he stopped him for “weaving in his lane” and because his left turn signal was blinking rapidly. McCannon says the rapid blinking means “you’ve got a bulb out somewhere.” He then checks the lights in the front and back of the car, none of which are out. McCannon says it must be that the turn signal is “about to go bad,” but that he won’t write a ticket for that—just a warning.

  • 4:43-5:09: McCannon asks Campbell where he is going. Campbell says he is traveling to Augusta, Georgia. McCannon asks why he is going there, and Campbell responds that he is going to see his family.

  • 5:10-13: McCannon asks Campbell to step out of the car and walk with him to the patrol car where he will write the warning.

  • 5:48: McCannon begins writing the warning ticket.

  • 6:13-29: McCannon asks Campbell about his family in Augusta, adding that he knows a little about Augusta. Campbell says he does not know much about Augusta; he just has family there. McCannon continues writing the ticket.

  • 6:30-57: McCannon asks Campbell what type of work he does. Campbell says that he works for American Woodlawn, building for Home Depot and Lowes.

  • 7:07-27: McCannon asks Campbell where his family lives in Augusta. Campbell responds that his family lives off of Watson Road. McCannon indicates he knows approximately where that is, and continues writing the ticket.

  • 7:48-8:30: McCannon stops writing to retrieve his jacket from the patrol car.

  • 8:32-38: McCannon asks Campbell if he is traveling with a firearm. Campbell shakes his head no.

  • 9:07: McCannon acknowledges Sergeant Paquette, who has just arrived off camera.7

  • 9:12-18: McCannon asks Paquette to “come here and let me ask you about this location.” McCannon tells Campbell that Paquette is from Augusta.

  • 9:31-39: McCannon calls the dispatcher to run a check on Campbell’s driver’s license.

  • 9:40-54: McCannon asks Campbell if he had been arrested before. Campbell responds yes, about sixteen years ago, for a DUI.

  • 10:00-56: McCannon and Paquette ask Campbell about his destination and where his family lives in Augusta, while McCannon continues to intermittently write the ticket.

  • 11:16-19: McCannon: “I know I asked you if you have any firearms tonight, and you said ‘no.'” Campbell nods and says “yes, sir.”

  • 11:20-45: McCannon: “Any counterfeit merchandise that you’re taking to your relatives in Augusta? And what I mean by that is—any purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs? Anything like that? Any illegal alcohol? Any marijuana? Any cocaine? Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You don’t have any dead bodies in your car?” Campbell shakes his head or otherwise responds in the negative to each question.

  • 11:47-55: McCannon: “I know you said you didn’t have that, and I’m not accusing you of anything—can I search it? Can I search your car for any of those items I asked you about?” Campbell responds in the affirmative, nodding and gesturing toward the car.

  • 12:02-13:05: Paquette pats down Campbell after McCannon indicates that he had not yet done so. McCannon continues writing the ticket.

  • 13:06: Paquette begins searching the car.

  • 13:22-44: McCannon asks Campbell to sign the ticket. Campbell does so and returns it to McCannon.

  • 14:00: McCannon hands the ticket to Campbell.

  • 16:18-19:58: McCannon and Paquette search the car.

  • 19:58-20:08: Paquette informs McCannon that he has discovered a gun and a ski mask.

  • 20:30-21:02: The officer’s finish searching the car and place Campbell in handcuffs.

  • 21:25-40: McCannon informs Campbell of his Miranda rights.

  • 24:12-48: McCannon tells Campbell he is under arrest for felon in possession of a firearm. McCannon places Campbell in the rear of his patrol car to be taken to the Greene County jail.[ii]

Campbell was subsequently indicted under federal law for being a convicted felon in possession of a firearm.  He filed a motion to suppress and argued (1) that the deputy lacked reasonable suspicion to initiate a stop, and (2) the deputy unlawfully prolonged the stop by asking questions unrelated to the traffic stop.  The district court denied the motion and Campbell pleaded guilty with the right to appeal.  He then filed a timely appeal with the Eleventh Circuit Court of Appeals.

On appeal he raised the same issues, particularly, that (1) the deputy lacked reasonable suspicion to initiate a traffic stop based on the fast turn signal, and (2) the deputy unlawfully prolonged the stop by asking questions unrelated to the purpose of the stop.

Issue One:  Whether the deputy had sufficient reasonable suspicion to initiate a traffic stop?

The court began by stating the legal principles that are relevant to this issue.  The relevant legal principles are as follows:

  • A traffic stop is a seizure within the meaning of the Fourth Amendment. To comply with the Fourth Amendment, the officer must have reasonable suspicion. That is, the officer must have “a particularized and objective basis for suspecting the person stopped of criminal activity.” [iii]

  • Criminal activity includes even minor traffic violations.[iv]

The court set out to determine if a rapidly blinking turn signal creates reasonable suspicion that a traffic violation occurred.

To determine this, the court looked at the Georgia statute governing turn signals.  The court stated

Georgia law requires that a vehicle be equipped with right and left turn signal lights. O.C.G.A. § 40-8-26(a)(2). Such lights must clearly indicate an intention to turn right or left and be visible from the front and rear from a distance of 300 feet. In addition, such lights “shall at all times be maintained in good working condition.” Id. §§ 40-8-26(a)(2), (b). As the District Court noted, the good working condition requirement is separate. If all the statute demanded is that the turn signal be visible from 300 feet and clearly indicate an intention to change lanes, the good working condition language would be superfluous. It must mean more.[v]

The court then reasoned that, as the deputy testified, a rapidly blinking turn signal typically means that a bulb is burnt out, is about to burn out, or there is a wiring problem.  Thus, since the rapid blinking signal is an alert to a problem, it is logical to conclude that the rapid blinking indicates the signal is not in good working condition.

As such, the court held that the rapidly blinking turn signal provided the officer with reasonable suspicion that was in violation of the traffic statute and provided sufficient legal justification to stop Campbell’s vehicle.

Issue Two:  Whether the deputy impermissibly prolonged the traffic stop when he asked questions related to drugs and other crimes not related to the traffic violation?

Campbell argued that Rodriguez v. United States[vi] required a holding that the stop was prolonged in violation of the Fourth Amendment and thus, suppression of evidence obtained from that violation.

For many years, law enforcement officers have been conducting traffic stops, and questioning vehicle occupants during traffic stops, using an “overall reasonableness” standard discussed in the Eleventh Circuit case, the United States v. Griffin.[vii]  Under this “overall reasonableness” standard, the court viewed unrelated questions during traffic stops in the context of the stop as a whole.  Thus, if the overall duration of the stop was reasonable, or within the normal time frame for a traffic stop, then it did not matter if an officer asked questions unrelated to the stop during that time frame, because the stop or questioning would not violate the Fourth Amendment.

However, in light of the Supreme Court case Rodriguez v. United States, the Eleventh Circuit reevaluated the “overall reasonableness” standard.

In Rodriguez, an officer conducted a traffic stop because Rodriguez weaved onto the shoulder of the roadway.  The officer issued a warning citation, returned his driver’s license, registration and proof of insurance and then had the driver and passenger wait approximately eight minutes, without reasonable suspicion of wrongdoing, while he conducted a canine sniff of the vehicle.  The sniff revealed contraband, and Rodriguez was charged.  The Eighth Circuit Court of Appeals denied Rodriguez’s motion to suppress and held that the eight-minute delay was “de-minimis” and did not violate the Fourth Amendment.  The Supreme Court disagreed and held the officer violated the Fourth Amendment with the extra eight-minute detention.

In discussing Rodriguez, the Eleventh Circuit noted several legal principles that apply to Campbell’s case.  The principles are as follows:

  • [I]n the context of a traffic stop, “the tolerable duration of police inquiries . . . is determined by the seizure’s mission. The mission of a traffic stop is “to address the traffic violation that warranted the stop . . . and attend to related safety concerns[.]” The stop may “last no longer than is necessary” to complete its mission. In other words, “[a]uthority for the seizure . . . ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.[viii] [emphasis added

  • The “overall reasonableness” standard is no longer valid. Now the court will look at each question asked and if it’s unrelated to the stop, the question(s) will be unreasonable, even if the questions only extends an otherwise reasonable time frame stop for a matter of seconds.[ix]

  • [T]he “critical question . . . is not whether the [unrelated inquiry] occurs before or after the officer issues the ticket . . . but whether conducting the [unrelated inquiry] ‘prolongs’—i.e., adds time to—’the stop.’ In other words, an officer can [unlawfully] prolong a stop before or after completing the investigation.[x]

  • THE NEW RULE: “A stop is unlawfully prolonged when an officer, without reasonable suspicion, diverts from the stop’s purpose and adds time to the stop in order to investigate other crimes.”  In other words, for an officer to unlawfully prolong a stop, “the officer must (1) conduct an unrelated inquiry aimed at investigating other crimes (2) that adds time to the stop (3) without reasonable suspicion.”[xi]

 

The Eleventh Circuit held that, based upon the principles above, when the deputy asked Campbell questions related to counterfeit merchandise, illegal alcohol, illegal drugs, and dead bodies, the deputy prolonged the traffic stop by 25 seconds and this additional time was unreasonable under the Fourth Amendment because the questions were not related to the original purpose of the stop, but were instead questions about crime in general.  These questions led to Campbell’s consent to search which led to the discovery of the gun for which Campbell was arrested.

Therefore, the court of appeals held that the unrelated questions prolonged the stop and violated the Fourth Amendment.

Issue Three:  Should the evidence discovered in the consent search be suppressed under the Exclusionary Rule?

The Eleventh Circuit then set out to determine if suppression of the evidence under the exclusionary rule was appropriate.  The court noted that the purpose of the exclusionary rule is to deter unconstitutional police conduct.  The court also noted an exception to the exclusionary rule, which occurs when the police act in compliance with valid precedent at the time of the search or conduct at issue, but that valid precedent is later overturned.  The court stated

Davis [v. United States] excepts from the exclusionary rule evidence the police obtain in searches conducted “in objectively reasonable reliance on binding appellate precedent[.]” Id. at 232, 131 S. Ct. at 2423-24. This is because the “sole purpose” of the exclusionary rule is to deter Fourth Amendment violations, id. at 236, 131 S. Ct. at 2426, and suppressing evidence obtained from a search that was lawful when conducted would “do nothing to deter” police wrongdoing while coming “at a high cost to both the truth and the public safety,” id. at 232, 131 S. Ct. at 2423.[xii] [emphasis added]

Therefore, because the deputy acted in compliance with then valid precedent, particularly, the United States v. Griffin[xiii], the Eleventh Circuit held that it would not suppress the evidence because the deputy acted in good faith and suppression of evidence would punish law enforcement for following valid law at the time of the incident.

Other Important Information from Campbell

What questions are permissible during a traffic stop?

  • The Court identified a number of tasks it says are “ordinary inquiries incident to [the traffic] stop.” These inquiries include “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Inquiries such as these ensure “that vehicles on the road are operated safely and responsibly.”[xiv]

  • Unrelated inquiries are permitted so long as they do not add time to the stop. An officer may conduct certain unrelated checks during an otherwise lawful traffic stop. But he may not do so in a way that prolongs the stop, absent reasonable suspicion.[xv] Examples:

  • In Illinois v. Caballes[xvi], an officer conducted a traffic stop. While he wrote citation, a canine officer arrived and conducted a free air sniff of the vehicle (while the original officer continued to write a warning citation).  As such, the unrelated inquiry (the canine sniff) did not add time to the traffic stop; therefore, it was permissible.

  • In Arizona v. Johnson[xvii], three officers conducted a traffic stop of a vehicle with three occupants. One officer diligently pursued the traffic stop by conducting driver’s license and registration checks. Another officer simultaneously questioned Johnson about his gang affiliation, which was considered questioning unrelated to the purpose of the stop.  However, the questioning did not add time to the stop because one officer diligently pursued the purpose of the traffic stop; therefore, it was permissible. 

How have other federal circuits ruled regarding the issue of unrelated questions during a traffic stop?

The Second, Third, Fourth, Fifth, Seventh, and Ninth Circuits have held similar to the Eleventh Circuit in Campbell. Specifically, the courts have held the following:

  • “United States v. Gomez, 877 F.3d 76, 88-93 (2d Cir. 2017) (concluding that it is not a reasonableness test but whether the unrelated inquiry adds time to the stop at all, and finding that asking a few questions about drugs prolonged the stop);”

  • “United States v. Clark, 902 F.3d 404, 410-11 (3d Cir. 2018) (finding that 20 seconds of unrelated questioning prolonged the stop);”

  • “United States v. Bowman, 884 F.3d 200, 219 (4th Cir. 2018) (finding that officer did not have consent or reasonable suspicion to question passenger after mission completed);”

  • “United States v. Macias, 658 F.3d 509, 518-19 (5th Cir. 2011) (deciding that unrelated questions violated the standard which says an officer can ask such questions only if they do not extend the duration of the stop);” and

  • “United States v. Stewart, 902 F.3d 664, 674 (7th Cir. 2018) (suggesting that 75 seconds used to call for backup might unlawfully prolong the stop, but the record was inadequate to determine if the officer’s purpose was for safety or a dog sniff).”[xviii]

The Sixth Circuit, on the other hand, still seems to track the “overall reasonableness” standard:

  • United States v. Collazo, 818 F.3d 247, 257-58 (6th Cir. 2016) (using language suggesting an overall reasonableness standard).[xix]

Practice Pointers:

  • At this point, officers seeking to ask questions unrelated to the purpose of the traffic stop would be best to work in pairs, such as in Illinois v. Caballes and Arizona v. Johnson, where one officer works diligently pursuing the purpose of the stop and the other asks unrelated questions and seeks consent to search.

  • Additionally, while the court did not address asking unrelated questions and seeking consent after a traffic stop, it appears to be permissible. Officers must be careful to clearly let the driver know that the stop is over and to ask for consent to continue to speak with the driver.  For example, while handing the driver his license, registration, and warning citation, simultaneously saying something such as, “Here is all your stuff; we are done.  But do you mind if I ask you a few more questions?”  If the driver agrees, immediately ask about drugs or any other contraband and then ask for consent to search.  The longer this takes, the more likely it may be held to be a continued detention.  Note: This is addressed in the Part Two of this Vehicle Consent Search series.

________________________________________

Citations

[i] Id. at 2-3

[ii] Id. 7-9

[iii] Id. at 12

[iv] Id. at 12

[v] Id. at 12-13

[vi] 135 S.Ct. 1609 (2015)

[vii] 696 F.3d 1354 (11th Cir. 2012)

[viii] Campbell at 15 (citing Rodriguez, 135 S.Ct. at 1614)

[ix] see Id. at 19

[x] Id. at 20

[xi] Id. at 21-22

[xii] Id. at 25

[xiii] 696 F.3d 1354 (11th Cir. 2012)

[xiv] Campbell at 15 (citing Rodriguez, 135 S.Ct. at 1615)

[xv] Id. at 16 (citing Id.)

[xvi] 543 U.S. 405 (2005)

[xvii] 555 U.S. 323 (2009)

[xviii] Campbell at 22

[xix] Id. at 22-23

By |2019-08-20T19:49:04+00:00August 20th, 2019|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.