Can police extend a traffic stop to search the vehicle with a dog? No, unless a police officer has a reasonable, articulable suspicion of criminal activity; a police officer cannot extend a traffic stop beyond the time necessary to address the traffic violation that is the basis for the traffic stop. That seems easy enough to say, but what does it mean in the real world?
The Michigan Court of Appeals just addressed this issue in a published case that was released on July 6, 2017: People v Kavanaugh, Mich App, Case Number 330359 (July 6, 2017).
Here’s a link to the Lansing State Journal article
Here’s a link to the actual Michigan Court of Appeals Opinion
A police officer on road patrol near St. Joseph in Berrien County received a radio notification to look out for a Honda travelling on I-94 with a paper, Florida license plate. When the police officer on road patrol saw that vehicle on I-94, he conducted a traffic stop for an improperly-affixed, paper license plate that was unreadable because it was flapping in the wind and for failure to signal an exit at an exit ramp. The officer gave the motorist warnings about the traffic violations and then requested consent to search the vehicle. The motorist declined the search, and the officer placed the motorist in the police car while he waited for a drug dog to arrive at the traffic stop. The drug dog alerted on the trunk where marijuana was found.
So, what did the police officer do wrong? He violated the motorist’s civil rights because he forced the motorist to sit and wait (this is called a seizure) while police searched his vehicle without the necessary probable cause to conduct a search without a search warrant. This is an unreasonable search and seizure without probable cause and violates protections that all Americans have under the Fourth Amendment of the United States Constitution.
In legal parlance, this is a “pretext stop” because the officer doesn’t really want to address the two traffic violations; rather, the officer wants to stop and search the vehicle. The appellate court’s Opinion doesn’t actually state why the officer was looking out for the vehicle; however, I suspect that police were looking for the vehicle because information was obtained from a confidential informant (snitch) or an undercover officer. So, police were looking for this car, had reason to stop the car for drugs, but didn’t want to reveal the source or content of that information. In police parlance, the police didn’t want to “burn their snitch” or “burn their undercover officer.” So, rather than testifying about the truth of their information, police rely on this game involving: (1) following the motorist until some minor traffic offense is observed, (2) conducting a traffic stop for the observed traffic violation, and (3) extending the traffic stop to a full search of the vehicle.
Where a police officer has a suspicion of criminal activity sufficient to conduct a warrantless search and seizure, the police officer’s suspicion (1) must be reasonable in that most police officers would agree that the behavior observed means that crime is probably occurring, and (2) must be articulable, which means that the officer must say it with clarity in court: hunches aren’t enough. So, in this case, where the officer testified that the motorist and the passenger appeared nervous and provided incomplete or inconsistent details about where they had been and what they had been doing, the officer’s belief that crime was occurring was unreasonable and not sufficiently articulable. Had the officer testified that he smelled marijuana, the occupants attempted to flee, he saw a gun or drugs in the vehicle, the motorist was attempting to hide things in the vehicle while the officer was approaching, or other suspicious activity occurred, the appeal in this case might have turned out differently.
Kymberly and I have seen many cases where trial courts improperly refuse to suppress the evidence of these unconstitutional traffic stops. Unfortunately, we’ve often observed dishonest testimony from police, and trial courts are too fearful or improperly motivated to accept that a police officer is lying, exaggerating, or failing to testify about the whole truth. The result of this gamesmanship and intellectual dishonesty is bad cops, bad trial courts, and bad convictions.
A reading of the appellate court’s Opinion in this case illustrates my point: every prosecution attempt to bolster the credibility of the police officer in this case was either refuted or met with disbelief. This is partly true because the judges at the appellate court took the time to review the police video of the traffic stop for themselves without accepting the trial court’s conclusions about the credibility of the police officer.
In this case, the Michigan Court of Appeals reached the right decision and for the right reasons. Here’s the part that stings: it took the appellate court three years to reach that decision. What do you think the defendant in this case endured during those three years?
This case illustrates why it is important to hire a criminal-defense attorney who is talented in the court room and can develop the necessary record and shape the evidence with constitutional protections in mind.