Vehicle traffic stops that lead to drug seizures pose a continuing problem for the courts to deal with. This is especially so in speeding cases.
Law enforcement stopping drivers of speeding vehicles has increasingly resulted in seizures of marijuana, oxycodone, hydrocodone, and methamphetamine in recent years. That’s because most foreign-produced drugs discovered in the United States are smuggled into the country overland, mostly from Mexico.
Vehicle Stops Create Constitutional Problems
But vehicle stops that lead to drug searches are a constitutional sticky-wicket. Two years ago the U.S. Supreme Court in Rodriquez v. United States held that they police cannot extend a traffic stop, even more than a minute, beyond the traffic violation without real reasonable suspicion that other criminal activity has occurred or is occurring.
Police Need Reasonable Suspicion to Extend Traffic Stop
Put simply, absent reasonable suspicion, the Supreme Court said that a traffic stop cannot be extended, as in the Rodriquez stop, “seven to eight minutes” until another police officer arrives with a drug dog to conduct a walk around of the vehicle. As Justice Ginsburg, speaking for six of the court’s justices, put it:
“The tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop, and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.’ Authority for the seizure thus ends when tasks tied to the traffic violation are—or reasonably should have been—completed.”
Unlawful Traffic Stop
A February 27, 2017 decision by the Tenth Circuit Court of Appeals confronted a classic unlawful drug search following a lawful speeding traffic stop.
Andrienne Lopez and Angela Lopez are not related. But on the afternoon of June 21, 2013, they both were traveling together in a Dodge Avenger just outside of Wichita, Kansas when their vehicle, driven by Angela, was stopped by a Kansas state trooper named Robert Krause. The trooper registered the vehicle traveling at a speed of 79 mph in a 65 mph zone. Thus, the traffic stop was lawful. No one disputed that.
Krause approached the driver’s side of the vehicle and informed the occupants that he had pulled them over because they were speeding. Adrienne asked the trooper where they were speeding. The trooper told her. Adrienne, instead of Angela, did “most of the talking” throughout this explanation process which, as the appeals court noted, caused Krause to see it as “a sign of nervousness.”
The trooper asked Angela for her driver’s license, insurance information, and the rental car paperwork after being told the vehicle was a rental. As Angela looked for the documents, Krause started a visual inspection of the backseat at which time Adrienne said, “Don’t look back there, it’s a mess.” The trooper, however, noticed that, as the Tenth Circuit observed, “the backseat was not particularly messy, only a few bags and a blue cooler were on the seat.”
Turning his attention back to the front seat, Krause asked the two women about their travel plans, to which Adrienne responded they were coming from California and were going to “Kansas City or Nebraska” to rescue Adrienne’s sister from an abusive boyfriend. At that point Angela gave the trooper the requested documents. Instead of a driver’s license, Angela gave Krause a receipt from the California Department of Motor Vehicles that was given to her after she reported losing her driver’s license. The car rental paperwork stated the vehicle had been rented in California for two days scheduled to be returned to the place of rental.
No Drugs in Car, But Needed Some Weed
Krause pointedly asked the women if they had any drugs, such as marijuana, methamphetamine, or heroin, the vehicle. Both women said no, but Adrienne added that she “needed some marijuana because the drive was taking too long.” This prompted the trooper to ask for more details about their travel plans. They told him they had left California the night before and drove all night but with a lot of stops.
Krause then returned to his own vehicle to run a check on the documents provided by Angela. The dispatcher informed the trooper that Angela had a valid driver’s license and no criminal history.
Traffic Stop Concludes
Apparently satisfied, Krause returned to the driver’s side of the vehicle and gave the documents back to Angela. He warned her about speeding and that she could possibly get in trouble for driving without a license. Adrienne thanked the trooper while asking if a person could get in trouble for driving without a license. The trooper said she could and walked away toward his vehicle after telling the women to have a “safe trip.”
Krause had walked only a few steps before he turned around and walked back to the driver’s window asking Angela if she “minded answering a few more questions.” She consented.
And this is where the traffic stop took a different direction. Krause asked Angela where they were headed at which point Adrienne interjected that they didn’t know the exact city they were going to because “her cell phone had not been working for the past two hours.” When the trooper asked the two women about their relation to each other, Angela said they were friends and Adrienne said they were cousins. Adrienne then qualified her statement by saying the pair had known each other a long time but they “were not related.”
Trooper Asked for Consent to Search
This behavior heightened Krause’s suspicions. Pointing out that the highway they were traveling on was a favorite drug route, the trooper asked for consent to search their vehicle. The women hesitated before refusing to give consent. Krause made a decision to detain the vehicle and summoned another trooper with a drug dog.
Detained 20 Minutes Awaiting Drug Dog
It took twenty minutes for the drug dog to arrive. The two women were removed from the vehicle and made to stand away from it. The dog sniffed around the vehicle before jumping through an open passenger door window and alerting on Adrienne’s purse located under the passenger’s seat.
An ensuing vehicle search discovered marijuana in Adrienne’s purse and roughly four pounds of pure amphetamine
Drug Conviction Reversed
Both defendants were convicted. They appealed to the Tenth Circuit. They raised a number of issues on appeal but the appeals court elected to hear only one because it resulted in a reversal of their convictions. Specifically, the court held that the detention of the two women while Krause awaited the arrival of the drug dog was unlawful because the trooper did not have a “reasonable suspicion” that the two women were involved in criminal activity.
In reversing the two women’s convictions, the Tenth Circuit rejected the three points the Government tried to use to show that Krause had a reasonable suspicion of criminal activity: “(1) Adrienne ‘s nervousness; (2) Adrienne asked Krause not to look at the backseat because it was messy even though it was not; and (3) Defendants’ travel plans were implausible.”
The appeals court said that while “this is a close case,” none of the government’s justifications held up under strict constitutional scrutiny. The court found, through detailed discussion, that the women’s actions were indeed plausible and could be readily explained outside the realm of criminal activity. First, Krause testified that his conversations with the women were essentially normal and neither exhibited an unusual amount of nervousness; and, second, he obviously did not think either the messy backseat or the women’s travel plans were overly suspicions because he thanked the women and walked away from the vehicle after issuing them a warning.
Police Walking Away from Vehicle Ended Traffic Stop
Krause’s walking away from the vehicle ended the traffic stop. The trooper’s decision to turn around and return to the vehicle seeking permission to conduct further inquiry became a criminal investigation. The issue, then, turned on whether the trooper had a reasonable suspicion to believe there was criminal activity afoot. The three justifications offered by the government to support reasonable suspicion had not triggered Krause’s suspicion during the traffic stop itself. That was evident by the officer’s decision to walk away and tell the women to have a safe trip.
The trooper obviously had a second thought, but the Constitution does not permit a second bite out of the apple. Had Krause asked for consent to search the vehicle during the traffic stop itself because they were in a heavy drug trafficking zone and/or because of the two women’s inconsistent stories, the Tenth Circuit ruling may have been different.
But that’s not what happened. In a sense, the officer’s law enforcement instincts took too long to kick in, prompting his need for that second bite out of the apple. Perhaps there was reasonable suspicion before the adieu and safe trip departure, but Trooper Krause did not seize the moment.
The constitution simply does not permit that second bite out of the apple.