The scope of police questioning during a routine traffic stop: do questions outside the scope of the original justification for the stop create impermissible seizures if they do not prolong the stop?

• Author: Lawrence, Bill

INTRODUCTION

A police officer makes a routine traffic stop of a vehicle with a cracked windshield? He questions the driver about the windshield and asks for the driver's license and registration. (2) While the officer checks the documentation, he asks the driver whether he has any illegal narcotics in the car. (3) The driver says 'no,' and the officer asks for consent to search the vehicle. (4) After the driver consents, the officer discovers cocaine on the driver's side of the car. (5)

In the prosecution for the possession of cocaine, the defendant argues that his consent was tainted by the officer's question about illegal narcotics because it was outside the scope of the original justification for the stop--the cracked windshield. (6) The defendant claims that the officer violated his Fourth Amendment rights (7) because the question about illegal narcotics gave rise to an unreasonable seizure. (8) A court agrees and rules that the consent was invalid and that the evidence must be suppressed. (9)

The situation described above occurs frequently, with many courts ruling similarly to this one. (10) Accordingly, the issue this Note addresses is whether a police officer, during a routine traffic stop, violates a person's Fourth Amendment rights when the officer's questions stray from the original reason for the stop. Resolution of the issue pits privacy concerns against the state's interest in effective law enforcement. (11) With circuits split over the issue, (12) and the Supreme Court not yet plainly ruling on it, (13) this Note aims to provide a narrow solution to the problem.

Part I of this Note explains the Fourth Amendment reasonableness standard and discusses the line of Supreme Court cases from Terry v. Ohio (14) to Florida v. Bostick (15) that deal with the permissible scope of questioning during a stop. Part II introduces the split between the Fifth and Seventh Circuits and the Eighth, Ninth, and, Tenth Circuits, highlighting the reasoning of the Seventh Circuit in United States v. Childs. (16) Further, Part II discusses the balance between privacy concerns and effective law enforcement and shows that the arguments are important because the Supreme Court has not yet directly ruled on the issue) (7) Part III of this Note proposes that courts consider the narrow holding in Childs. This Note concludes that in the routine traffic stop situation, effective police work outweighs the minimal privacy interest.

1. THE FOURTH AMENDMENT REASONABLENESS STANDARD

   The Fourth Amendment provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." (18) To trigger the protection of the amendment, an officer must commit an unreasonable search or seizure. (19) Problems arise, however, in determining whether an unreasonable search or seizure has occurred. (20) This Note centers on the seizure component within the context of a routine traffic stop.

   Put simply, a seizure occurs if a police officer causes a reasonable person to feel as though he cannot walk away or terminate the encounter. (21) Within this definition, a routine traffic stop of a motor vehicle constitutes a limited seizure and may trigger the Terry doctrine. (22) Under the Terry doctrine, an officer may stop a suspect and detain her briefly to investigate reasonable suspicion of criminal activity. (23) Because the Terry doctrine may apply to motor vehicle stops as well, if, as in the introductory situation, a driver commits a traffic violation, a police officer may stop the driver for as long as it takes to write a ticket for the violation. (24) Moreover, the Terry doctrine provides that in determining whether a search or seizure was unreasonable, courts consider whether the original reason for the officer's actions was justifiable and whether it was reasonably related in scope to the original circumstances. (25)

   Issues arise when, during routine traffic stops, officers ask questions unrelated to the original reason for the stop, (26) Some courts hold that for an officer to justify questioning beyond the original reason for the stop, there must be reasonable suspicion of independent, criminal activity. (27) Other courts hold that officers may be justified asking questions outside the scope of the original reason for the stop so long as the questions do not prolong the stop. (28) Thus, the issue apparently turns on the length of the detention for some courts, while other courts take a bright-line approach and ban the questioning altogether.

   Presented with the introductory scenario, then, a court must determine whether the officer committed an unreasonable seizure or if he simply asked a question. (29) To aid in this endeavor, a court may consider a line of cases that deals with general police questioning. (30)

   In a non-custodial situation, a police officer may ask questions or request consent to search so long as the officer does not imply that the answers or consent are obligatory. (31) Moreover, reasonable suspicion is not a prerequisite to these questions. (32) For example, the Bostick court noted, "[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions." (33) Along these lines, police officers may ask questions as long as they do not employ coercive tactics. (34) If an officer employs coercive tactics, however, the questions may give rise to an unreasonable seizure. (35)

   Under this analysis, a police officer may ask questions freely of persons walking down the street. (36) Bostick makes this point. (37) In Bostick, police officers boarded a passenger bus for drug interdiction purposes. (38) After informing a passenger of their purpose on the bus and then questioning him, the passenger consented to a search of his bag. (39) The search produced narcotics.(40) At the trial, the defendant moved to suppress the narcotics evidence on grounds that the officer impermissibly seized him. (41)

   The defendant argued that he was seized because after the police questioning, a reasonable person in his situation would not have felt free to leave. (42) The Florida Supreme Court ruled in the defendant's favor and adopted a per se rule that essentially, "police in Florida, as elsewhere, may approach persons at random in most public places, ask them questions and seek consent to a search, but they may not engage in the same behavior on a bus." (43)

   The United States Supreme Court disagreed, holding that mere police questioning does not always constitute an impermissible seizure:

   [I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street or in an airport lobby, and it applies equally to encounters on a bus. The Florida Supreme Court erred in adopting a per se rule. (44) Although the defendant was not technically free to leave because he did not want to risk the bus leaving without him, the Court still said that the officer did not commit an unreasonable seizure. (45) The Court reasoned that the bright-line "free to leave" doctrine was inappropriate under these circumstances. (46)

   The Bostick analysis of questions applies to non-traffic stop settings as well. Under United States v. Laboy, the Tenth Circuit plainly followed Bostick for a sidewalk encounter. (47) The defendant was walking down a sidewalk, across the street from where officers were conducting an undercover narcotics operation. (48) One of the officers motioned for the defendant to cross the street. (49) The officer asked the defendant if he had any drugs on him and the defendant said yes. (50) The officer then arrested the defendant. (51)

   At trial, the district court granted the defendant's motion to suppress the evidence seized incident to the arrest, holding that reasonable suspicion did not support the seizure, which rendered it impermissible. (52) The Tenth Circuit Court of Appeals disagreed, however, relying heavily on Bostick for its conclusion, "As long as a reasonable innocent person, as opposed to a person knowingly carrying contraband, would feel free to leave, such encounters are consensual and need not be supported by reasonable suspicion of criminal activity." (53) Accordingly, the Tenth Circuit reversed the district court's suppression order, holding that the officer's initial questioning did not create an impermissible seizure. (54)

   Similarly, the Southern District of Indiana determined that police questioning outside the traffic stop setting failed to create an impermissible seizure. (55) In United States v. Steele, officers spotted the defendant outside a building where a string of burglaries had recently occurred. (56) One officer walked over to the defendant and asked him a few questions, including one about the pouch he was wearing. (57) The defendant voluntarily opened the pouch and the officer then observed a handgun. (58) The officer arrested the defendant, who then moved to suppress the evidence on grounds that it was the product of an impermissible seizure. (59) The district court denied the motion to suppress. Citing Bostick, the court stated, "a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." (60) The court went on to determine that questioning a person after the conclusion of an investigative stop still may be deemed consensual. (61) Following this reasoning, the court held the questioning did not create an impermissible seizure and the court therefore denied the defendant's motion...