We have been expecting from the Kansas Supreme Court three cases on traffic stop law. All three came down last Friday and all three leaned heavily upon Rodriguez v. United States, a watershed 2015 U.S. Supreme Court traffic/dog sniff case (135 S.Ct. 1609). To say the least, these latest Kansas decisions have narrowed an officer’s ability at a routine traffic stop to inquire into matters not directly connected to the traffic infraction. If you stop cars as part of your duties, you will want to read and think about these cases because they are guaranteed to be the topic of discussion in your future suppression hearings.
I always try to keep these summaries as short as possible and because the cases are discussed jointly by the Court, I am going to dispense with the facts and pass along only the highlights.
The highlights of the cases are:
- The Court holds in Schooler that the officer had reasonable suspicion to detain the car for a drug dog, but 3 justices find potential future fault as discussed in #6 below. Jimenez holds the officer’s detailed questions into travel plans, which therefore delayed processing the driver’s license and outstanding warrant inquiries, measurably extended the stop. Lowery holds that the officer did not have reasonable suspicion to further detain the car (video did not support “extreme nervousness;” minor discrepancies in travel plans do not support reasonable suspicion; a third-party vehicle, when vehicle ownership, insurance, and registration are not in question, adds little; the destination of Colorado, when the driver’s license showed Colorado as the driver’s current address, is of no value; a vehicle’s tag showing multiple trips past a license plate reader, when there is no testimony as to the times and dates of the readings, was no evidence that the car had traveled on to Colorado; when investigating why a driver would fly one-way yet chose to drive back, the checking of online airline ticket prices for the day of the stop does not provide any legitimate information about the price of the tickets purchased on the earlier day.
- The following are the ordinary inquiries within the “mission” of all traffic stops: 1) checking the driver’s license; 2) inspecting the automobile’s registration and proof of insurance; 3) determining whether there are outstanding warrants against the driver; and, 4) the “negligibly burdensome precautions” for officer safety. Remember in a case a few weeks ago (State v. One 2008 Toyota) that criminal history (Triple I) is not an ordinary inquiry of every car stop. Officers should have an officer safety reason to inquire, or inquire while multitasking as explained below.
- Officers are to “diligently pursue the traffic investigation;” and, without consent or reasonable suspicion of a second crime, “on-scene investigation into other crimes . . . detours from the [that] mission [and becomes unlawful].”
- Travel plan questioning “is not always within a traffic stop’s scope.” Travel plans are best inquired about while other duties of the stop’s “mission” are occurring.
- Questioning “within the scope of the stop” are questions with a close connection to the initial infraction under investigation or to roadway safety, i.e. ensuring vehicles on the road are operated safely and responsibly. Without consent or reasonable suspicion of separate criminal activity, inquiries about subjects “outside the scope of the stop” must be done only at the same time as the officer is completing the tasks appropriate for the processing of the initial infraction. As the Court explained, that would be known as “overlapping” efforts or “multitasking.” Otherwise, the “outside the scope” questioning unlawfully extends the duration of the stop.
- Courts are to review traffic stops on a case-by-case basis; a particular stop’s reasonableness of time depends upon what the particular officer did or did not do during the particular stop; how long other similar types of past traffic stops have taken is irrelevant. And, courts are to “guard” against “mission creep” referring to officers conflating the inquiries that are approved with inquiries that are either unwarranted or unauthorized.
- Concerning those officers having developed reasonable suspicion of a second crime (and thus having the authority to continue to detain and question the driver) but who choose to hold in reserve such detention authority and simply tell the driver that he or she is free to go (in an effort to transform the detention into a consensual encounter allowing the officer to request consent to search the car): Justice Rosen (joined by Justices Johnson and Beier) noted at the end of Schooler that, “the issue of whether any consent or confession was voluntary is a question for another day . . . However, there should be no doubt that constitutional concerns arise when a detained traveler on the roadway is purposely misinformed that the basis for the detention is no longer in place and as a result the traveler is free to leave. . . I would caution law enforcement officers against using the promise of freedom in any attempt to circumvent the protections afforded by our Constitution.”
The bottom line issues in traffic stops continue to be scope of the inquires, and the duration of the stop. For criminal interdiction purposes, the best practice will be multitasking: the ability to do two things at once will help prevent a car stop from being unlawfully extended. Barring a driver’s consent or the development of reasonable suspicion of a second crime, officers should inquire about things outside the scope of the original reason for the stop only while performing the “mission” of a car stop: which is usually the enforcement of the traffic infraction.
Although not a question before the Court here, I predict that the next big issue will be the intersection of the car stop’s “mission” and the speaking with passengers. To be safe, multitasking will be the word of the day there, too.
Full text of each opinion: