The 'routine traffic stop' from start to finish: too much 'routine,' not enough Fourth Amendment.

• Author: LaFave, Wayne R.

TABLE OF CONTENTS I. THE START: LAWFULNESS OF THE TRAFFIC STOP A. Quantum of Evidence B. Protection Against Arbitrariness and Pretext II. THE IN-BETWEEN: DIMENSIONS OF A LAWFUL TRAFFIC STOP A. The Applicability of the Terry Limitations B. Specific Investigative Techniques 1. Records Check 2. Questioning Vehicle Occupants 3. Obtaining Consent to Search 4. Sniffing by Drug Dogs III. THE FINISH: FROM SEIZURE TO "CONSENSUAL ENCOUNTER" IV. SOME FINAL REFLECTIONS Yale Kamisar, about which I have said too much elsewhere in this issue of the Review, (1) could rightly be called "Mr. Confessions," for he has not only authored books and a host of articles on the subject of police interrogation, but for years has been printing Miranda cards in his basement and selling them to police departments all across the nation. (2) Moreover, he may be the only law professor in the country who has both personally coerced a confession and had a confession coerced out of him. (3)

As Kamisar has himself noted, (4) my own "intellectual sandbox" has been the field of search and seizure, which has occupied much of my attention for virtually all of my professional life. Among my endeavors in that regard is a treatise on the subject, now in its five-volume third edition, (5) in which I have "created" (in the Frankensteinian sense) a 1,687,149-word exceptionally execrable excrescence (6) upon the 54-word Fourth Amendment. Such efforts notwithstanding, I have understandably not had this "sandbox" to myself; there is no way I could claim exclusive rights to an entire amendment to the Constitution. Indeed, there were footprints in the sandbox upon my very first visit, most prominently those of Yale Kamisar, and he has often revisited since my arrival, all to my benefit. I have read and reread Yale's many contributions to this area, and have profited greatly from the insights I have gained from them. That being the case, when the Review asked if I would do a Fourth Amendment piece for this issue honoring Yale Kamisar, I accepted immediately.

The subject of this Article is an exceedingly important one, as is reflected by the fact that in recent years more Fourth Amendment battles have been fought about police activities incident to what the courts call a "routine traffic stop" (7) than in any other context. There is a reason why this is so, and it is not that police have taken an intense interest in such matters as burned-out taillights and unsignaled lane changes per se. Rather, as anyone not on a trip to Mars over the past decade or so is surely aware, the renewed interest of the police in traffic enforcement is attributable to a federally sponsored initiative related to the "war on drugs." (8) Both in urban areas and on the interstates, police are on the watch for "suspicious" travelers, and when a modicum of supposedly suspicious circumstances are observed--or, perhaps, even on a hunch or pursuant to such arbitrary considerations as the color of the driver's skin (9)--it is only a matter of time before some technical or trivial offense produces the necessary excuse for a traffic stop. (10) Perhaps because the offenses are often so insignificant, (11) the driver may be told at the outset that he will merely be given a warning. But then things get ugly. As a part of the "routine," a criminal-history and outstanding-warrants records check is run on the driver and passengers; they are closely questioned about their identities, the reason for their travels, their intended destinations, and the like, and may be quizzed as to whether they have drugs on their persons or in the vehicle. The driver may be induced to submit to a full search of the vehicle, or a drug-sniffing dog may appear on the scene and "do his thing."

My favorite illustration of this tactic is United States v. Roberson. (12) A Texas state trooper on patrol at night passed a van and noted it had out-of-state plates and four black occupants, so he pulled off onto the shoulder after cresting a hill, turned his lights off, and then observed the van change lanes to provide more distance between it and the vehicle parked on the shoulder. The lane change was unaccompanied by a signal, which hardly seems remarkable in view of the fact that the van was "the only moving vehicle on that stretch of road," but the trooper "obviously regarded this as a serious traffic offense," for he pulled the van over. (13) He then questioned the van's occupants on unrelated matters and finally exacted consent to search the vehicle, which resulted in the discovery of drugs. Despite the court's familiarity with this trooper's "propensity for patroling the fourth amendment's outer frontier" and his "remarkable record" of turning traffic stops into drug arrests on 250 prior occasions, the defendants in Roberson were deemed to be without any basis to challenge the stop because, after all, the trooper had "observed a traffic infraction before stopping the vehicle"! (14)

Cases of this genre raise a number of important issues concerning the Fourth Amendment legalities of the "routine traffic stop" from start to finish. As to the start, there are various questions concerning the limitations upon when such a stop may be initiated. As to the finish, there are questions concerning what is necessary to constitute a termination of custody and what official actions thereafter will or will not constitute a new seizure. And then there is the in-between, that critical period between start and finish; as to it, there is another set of questions concerning how long the seizure may continue and what investigative techniques and tactics are permissible during that interval.

1. THE START: LAWFULNESS OF THE TRAFFIC STOP

   1. Quantum of Evidence

      The primary (indeed, virtually exclusive) inquiry appropriate to determining the lawfulness of a traffic stop is whether there was a preexisting sufficient quantum of evidence to justify the stop. In the run-of-the-mill case, this presents no significant problem, for most traffic stops are made based upon the direct observations of unambiguous conduct or circumstances by the stopping officer. That is, in most of the cases the stopping will have been made on full probable cause. Because the Supreme Court has recently told us, in the roundly criticized (15) case of Atwater v. City of Lago Vista, (16) that probable cause alone suffices to justify a custodial arrest for the slightest traffic offense, it is apparent that the same is true for the lesser intrusion of a traffic stop. (17)

      Probable cause, of course, is the well-established constitutional standard for arrest where more serious criminal conduct has apparently occurred, and in such a context has worked rather well as a basis for determining which suspected offenders should and should not be apprehended. With respect to traffic offenses, however, even though "the establishment of probable cause based on the word of the officer is practically a given," (18) there is good reason to be less sanguine. At least since the police have co-opted our traffic codes as a weapon to be used in the "war on drugs," police make stops for the most insignificant conduct lying at (or perhaps just beyond) the outer boundaries of the defined prohibited conduct, and courts uphold those tactics by broad interpretation of the definitions of the traffic offenses involved. (19) Although the matter is seldom put this way, it is as if the courts were saying that at the probable-cause level (as compared to the beyond-a-reasonable-doubt level), a reasonable but perhaps erroneous interpretation of the substantive statute relied upon by the officer is good enough. But that simply is not the case, for it is well-established Fourth Amendment doctrine that the sufficiency of the claimed probable cause must be determined by considering the conduct and circumstances deemed relevant within the context of the actual meaning of the applicable substantive provision, rather than the officer's claimed interpretation of that statute. (20)

      But if, as is clear, probable cause is a permissible basis for a traffic stop, is it the only basis, or will some lesser standard also suffice, such as the reasonable-suspicion standard approved in Terry v. Ohio (21) for certain investigative stops? Most courts have assumed the latter, i.e., that traffic stops as a class are permissible without probable cause if there exists reasonable suspicion, that is, merely equivocal evidence. Such an assumption is to be found in the federal-court decisions of the various circuits, (22) as well as in the decisions of most states. (23) In most of these cases the matter has not even been put into issue by the defendant (often because it appears the stop would pass muster even under the probable-cause test), but on the rare occasions when the defendant has made a contrary claim it is often rather summarily dismissed. (24) A few state decisions are to be found not permitting stopping for all traffic violations; some are grounded in a state statutory provision so limiting the police authority to make stops, (25) but on other occasions courts, whether or not mentioning the Fourth Amendment, have engaged in analyses one would expect to be employed in determining the issue under the Fourth Amendment. (26)

      Illustrative of the few cases expressly rejecting a defendant's claim that probable cause is required for some traffic violations is United States v. Callarman, where the district court had upheld the stop on the ground that the officer either had probable cause or reasonable suspicion (without specifying which) of violation of the statute making it a traffic infraction to drive with windshield damage so severe that it "substantially obstructs the driver's clear view" of the road, where the officer saw a twelve-inch crack just above where the windshield met the hood. (27) The court of appeals affirmed, but failed to address the defendant's contention that under Terry a seizure on reasonable suspicion...