South Carolina BAR Journal
SC Lawyer, Sepetember 2011, #4.
The Traffic Stop: A Chronology of Fourth Amendment Issues
South Carolina LawyerSepetember 2011The Traffic Stop: A Chronology of Fourth Amendment IssuesBy John O. Radeck Jr. In the recent S.C. Supreme Court case State v. Tindall, 388 S.C. 518, 698 S.E.2d 203 (2010), officers performed a traffic stop on Tindall for speeding and following too closely behind another vehicle. The officers ordered Tindall out of the car, ran the license and registration, and told him he would be receiving a warning ticket. Id. at 520-21, 698 S.E.2d at 204-05. At the point the officer informed Tindall he would receive a ticket, the officer had learned that (1) Tindall was driving to Durham to meet his brother, (2) he was driving a rental car rented the previous day by another individual which was to be returned to Atlanta on the day of the stop, (3) he did a "felony stretch" on exiting the vehicle and (4) he seemed nervous. Id. at 523, 698 S.E.2d at 206. After issuing the warning ticket, the officer questioned Tindall for an additional seven minutes, eventually obtaining consent to search the vehicle. Id. at 522, 698 S.E.2d at 205. The consent search uncovered drugs, and Tindall was arrested. Id. Because the officer did not gain reasonable suspicion of criminal activity during the stop to further detain Tindall for questioning, the Court held the consent invalid as part of an unlawful detention. Id.
From the activation of the blue lights to the post-traffic stop questioning and eventual drug seizure, this article provides a general overview of the most common issues raised in the factual scenario presented in Tindall and discusses the most recent South Carolina case law on the subject. As a roadmap, this traffic stop analysis will focus on (1) the basis for the traffic stop, (2) the interaction between the officer(s) and occupant(s) during the stop, (3) the transition from the initial traffic stop to the second detention, (4) whether the second detention amounts to a seizure and (5) whether the post-traffic stop consent search is valid.
Because of the high volume of drug cases in South Carolina, many resulting from traffic stop searches and seizures, this article was written to inform judges, lawyers and law enforcement of the chronology of issues created during a traffic stop. Understanding the legal and factual distinctions of the traffic stop will assist judges in analyzing suppression motions and provide both solicitors and defense lawyers leverage in plea and trial negotiations, all of which could mean the difference in whether a defendant walks or goes to jail.
Basis for the traffic stop
"A traffic stop is a limited seizure, more like an investigative detention than a custodial arrest." State v. Nelson, 336 S.C. 186, 192, 519 S.E.2d 786, 789 (1999) (citations omitted). Thus, courts analyze traffic stops using the standard articulated by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, (1968) (holding that a person may be temporarily seized on the basis of reasonable suspicion of criminal activity and searched for weapons when the officer obtained reasonable suspicion that the person may be armed and dangerous). Id.
Being pulled on reasonable suspicion of criminal activity
An officer may briefly detain the driver of a vehicle "for investigative purposes, without treading upon his Fourth Amendment rights, when the officer has a reasonable suspicion supported by articulable facts, short of probable cause for arrest, that the person is involved in criminal activity." State v. Taylor 388 S.C. 101, 694 S.E.2d 60 (Ct. App. 2010) (quoting State v. Blassingame, 338 S.C. 240, 248, 525 S.E.2d 535, 539 (Ct. App. 1999)). A Terry stop in this situation is not predicated on a traffic violation, but rather on independent facts in support of reasonable suspicion of criminal activity. SeeState v. Corley, 392 S.C. 125, 708 S.E.2d 217 (2011) (officer obtained reasonable suspicion of criminal activity to perform Terry stop of vehicle where the officer observed the occupants enter a known drug house late at night and stay for approximately two minutes). The balance of this article, however, will focus on traffic stops resulting from traffic violations.
Being pulled for a traffic violation
"In a traffic-stop setting, the first Terry condition-a lawful investigatory stop-is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation." Arizona v. Johnson, 129 S.Ct. 781, 784 (2009). If a traffic violation has occurred, the decision to stop the automobile is reasonable per se. Tindall, 388 S.C. at 521, 698 S.E.2d at 205 (citation omitted). Everyone in the vehicle, the driver and passengers, are effectively seized during the duration of the traffic stop. Brendlin v. California, 551 U.S. 249, 255 (2007). The seizure occurs "from the moment [a car stopped by the police comes] to a halt on the side of the road." Johnson, 129 S.Ct. at 787 (quoting California, 551 U.S. at 263).
The Supreme Court of South Carolina has made clear that the subjective intentions of the police officer in performing a traffic stop play no role in the ordinary probable cause Fourth Amendment analysis. State v. Banda,371 S.C. 245, 252, 639 S.E.2d 36, 40 (2006)(citing Whren v. U.S., 517 U.S. 806, 813 (1996)). Even if the officer's initial justification for the stop would have violated the Fourth Amendment, the stop is nonetheless justified where the driver commits a traffic violation. Nelson, 336 S.C. at 193, 519 S.E.2d at 789 (officer testified that he initially pursued defendant to get "his side of the story" after being called to a house for a dispute between the defendant and a neighbor over an unleashed dog, but eventually pulled over the defendant for a traffic violation).
Once detained for a traffic violation, the officer may order the driver out of the vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 122 (1977) (per curiam). Once outside the stopped vehicle, the driver may be patted down for weapons if the officer reasonably concludes that the driver "might be armed and presently dangerous." Johnson, 129 S.Ct. at 786 (quoting Mimms, 434 U.S. at 112). These procedures also apply to passengers. Id. (citing Maryland v. Wilson, 519 U.S. 408...