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Wednesday, December 16, 2009

The Power Of A Single Sentence: Traffic Stops

I wonder how often the Supreme Court has nonchalantly wiped off the law books an entire jurisprudential debate with one blithe sentence. That is exactly what the Court did last term in Arizona v. Johnson, 129 S. Ct. 781 (2009). For very good reasons reflecting the Court’s own muddles, federal and state courts had for many years struggled to define the contours of the police’s search power during traffic stops, and unsurprisingly had come up with widely varying doctrinal formulations. In Johnson, a case that did not even directly raise the issue, the debate over those formulations largely vanished due to one sentence.

I became pretty familiar with the doctrinal morass involving traffic stops a few years ago when I got involved pro bono in helping to oppose a Fourth Amendment certiorari petition that Illinois had filed. The Supreme Court itself has caused the jurisprudential problem because its traffic stop cases are an analytical mess. The tension arises because the Court often wants to treat traffic stops a lot like consensual police encounters. That would allow police a large degree of flexibility. But traffic stops are not consensual encounters. Rather, they are involuntary, coerced encounters. Thus, when confronting traffic stops, the Court often has analogized to Terry stops. Terry "stop-and-frisks" allow police to compel brief, non-consenual, investigatory stops based upon reasonable suspicion. Because they involve involuntary stops, and based upon a lower threshold of suspicion that probable cause, which is the traditional Fourth Amendment standard, the scope of Terry stops are to be strictly limited so that these encounters remain brief, the public is not unduly burdened, and police cannot engage in fishing expeditions.

Illinois courts, like many state and federal courts, had struggled with how to reconcile this tension in the Court’s precedents. Like many such courts, those in Illinois chose to place greater primacy upon the Terry analogy. Consequently, Illinois courts had erected a rather detailed, demanding, but admittedly convoluted traffic stop jurisprudence that generally prohibited police from inquiring about, or seeking consent to search with regard to, matters or offenses unrelated to the reason for the traffic stop.

Happily, we won a denial of certiorari in my pro bono case despite a major state and circuit split. But we would have been on the wrong side of the law had the issue arisen after Johnson. Johnson reviewed the issue of whether police could engage in a Terry frisk during a traffic stop where they had reasonable suspicion that an individual was armed and dangerous but no reason to believe the individual was involved in criminal activity unrelated to the traffic stop. Unsurprisingly, the Court allowed such frisks based only upon reasonable suspicion of danger. Surprisingly, the Court threw in this one, single sentence:

An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.

In support, the Johnson Court cited Muehler v. Mena, 544 U.S. 93 (2005).

Well, despite its assertion, the Court had never made such a thing plain. Mena wasn’t even a traffic stop case. But because of the Court’s one sentence in Johnson, all those courts that had tried to erect a Terry barrier during traffic stops will now be dramatically reworking their jurisprudence, and we are now left with police having wide discretion to make all sorts of inquiries during traffic stops. Police can ask about your drug or alcohol use, or whether you have firearms or any other contraband in the car, and they are free to ask consent to search the car (this request generally comes after your denials so that you face psychological pressure to grant consent). They are free to ask virtually anything at all.

Your only protection is that the inquiries cannot “measurably extend the duration of the stop.” Police can even keep you there on the side of the road while they call in a canine unit to perform a dog sniff of your car, again so long as the traffic stop is not unduly prolonged (Illinois v. Caballes). (You’ll be comforted to know that, according to the Court in United States v. Place and Caballes, the dog sniff is not a search at all.) What constitutes unreasonable delay will be a crucial litigation issue, but don’t be too hopeful that short time lines will be imposed, as the Court has upheld a 20-minute delay (albeit in a context in which the suspect's own actions contributed to the delay, United States v. Sharpe), and in Mena a 3-hour delay (of an unsuspected third party!).

The Court went astray in Johnson by purporting to adhere to the Terry analogy but abandoning its underlying structure. In a Terry stop, police are to limit their line of inquiry to the grounds underlying their reasonable suspicion. Beyond that, there is (at least theoretically) merely a consensual encounter that an individual can end by walking away, as the police lack authority to compel detention. Here’s the rub: during a traffic stop, none of us has the right to end the encounter by leaving, as it is unlawful to leave a traffic stop until being released by police. So, police now have a captive audience (akin to Terry), but police have much greater powers to engage in searches through unrelated inquiries (unlike Terry), and to do so for some period of time up to the inchoate moment of “measurably extending the duration of the stop” (again, unlike Terry).

Thus, Johnson’s single, almost off-hand sentence has dramatically changed the nature of policing and the context in which individuals interact with police. Reportedly, the vast majority of face-to-face interactions between individuals and police occur during traffic stops. It’s fair to question not only whether this was a wise move, but whether the Court properly handled the issue through its one-sentence declaration.

I'm also going to throw this out:  Mena is going to be a much more important decision than was realized at the time, as it will give the Court cover on a lot of tricky issues when it wants to err on the side of increased governmental discretion.

Posted by Fabio Arcila on December 16, 2009 at 05:38 PM in Constitutional thoughts, Criminal Law | Permalink


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Tracked on Dec 17, 2009 6:23:28 PM


This is a somewhat different animal b/c it's relative to Miranda "in custody", but students always ask whether, as the Court held in Berkemer v. McCarty, you were really free to terminate the encounter at a traffic stop and leave (i.e. not in custody for Miranda purposes). I generally tell them with a smile that it might not be in their best interest to take the Court quite so literally in that scenario. It does prompt thinking about how realistic the Court is in its analysis of practical situations. I suppose you could argue that it's more about the suspect's "feeling" than a "right" to leave. On the other hand, I certainly dont 'feel' free to leave in that situation, what with the taser right there on his/her belt. ;-)

Posted by: Jeff Yates | Dec 17, 2009 8:40:45 AM

This is a good point. Already, this sentence has been cited by the 1st, 2nd, 6th, 8th, and 9th Circuits. Numerous district courts have cited it as well. The only similar sentence that comes to mind is in the Supreme Court's opinion in Maryland v. Buie, 494 325 (1990). In that opinion, the Court found "that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."

The second sentence was the holding of the Court. The first sentence was dictum and had nothing to do with case before the Court. But courts have treated that first sentence as gospel and used it justify suspicionless searches of entire houses and apartments.

Posted by: Colin Miller | Dec 16, 2009 6:46:37 PM

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