Published on November 12th, 2015 | by Millennium Magazine Staff0
The Extended Traffic Stop
By John Radeck
“Copyright South Carolina Bar. Reprinted with permission.”
Nearly everyone has experienced a traffic stop. The heart rate of the most innocent traveler increases upon seeing blue lights in the rearview mirror. You pull over and wait for the officer to inevitably approach and hope the stop does not last too long. In my prior article The Traffic Stop: A Chronology of Fourth Amendment Issues,
 I outlined a variety of Fourth Amendment issues that can arise during a traffic stop. This article will focus on an officer’s prolongation of an otherwise lawful traffic stop for investigative reasons.
Prolongation of the traffic stop
There are two types of prolongation cases: (1) where the prolongation occurs after the traffic stop is complete (potentially creating a second unlawful seizure at the end of the initial lawful seizure) and (2) where there is prolongation by the officer before the stop is complete, because the officer pursues a parallel investigation, one related to the justification for the traffic stop, the other unrelated.
 Many cases turn on whether an officer’s off-topic questions or actions measurably extend or prolong the traffic stop. If so, the question becomes whether the officer had reasonable suspicion to do so.
The U.S. Supreme Court recently confirmed that a vehicle stop for a traffic violation can only last as long as reasonably required to issue a ticket and complete the stop’s mission. The “mission” includes “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” “If an officer can complete [these] traffic-based inquiries expeditiously, then that is the amount of ‘time reasonably required to complete [the stop’s] mission.’” The Court has also permitted “certain” unrelated investigations that did not lengthen the traffic stop, such as unrelated questioning and dog sniffs. However, the stop becomes unlawful if the unrelated investigation prolongs (adds time) to the stop.
The Fourth Circuit traditionally considered certain traffic stop delays as “de minimis” and outside the purview of the Fourth Amendment. More recent Fourth Circuit cases determine the lawfulness of traffic stop delays by analyzing the diligence of the officer’s actions in investigation the traffic violation.
The U.S. Supreme Court in Rodriguez v. United States acknowledged that its prior precedent allowed for de minimis intrusions. But the Court clarified that the intrusions must relate to the legitimate interest in the officer’s safety in carrying out the mission of the traffic stop. An investigation into other crimes “detours from that mission.”
Prolongation after the stop is complete
The S.C. Supreme Court’s pivotal decision concerning an officer’s continued detention of a vehicle’s occupant after the completion of the traffic stop is State v. Tindall.  Tindall makes clear that once the initial traffic stop is complete, “[a]ny further detention for questioning is beyond the scope of the stop and therefore illegal unless the officer has reasonable suspicion of a serious crime.”
In Tindall, an officer performed a routine traffic stop for speeding and advised the driver he would receive a warning ticket. However, instead of issuing the ticket, he questioned the driver for an additional six to seven minutes about the purpose of his trip, his travel plans and whether he was ever charged with any drug crimes. The officer eventually obtained consent to search the vehicle, drugs were found and the driver was arrested. The Court found that the continued detention exceeded the scope of the traffic stop and constituted an additional seizure. The Court further held that the officer did not have reasonable suspicion of criminal activity to justify the second detention.
The S.C. Supreme Court recently revisited the scenario presented in Tindall in the case of State v. Hewins.  In Hewins, the officer performed a routine traffic stop on a vehicle for making an improper turn. The officer approached the vehicle and requested the defendant’s driver’s license, proof of insurance and vehicle registration. The officer immediately called for back-up because the defendant was nervous. Because the driver did not have his registration, the officer returned to his patrol car and confirmed in the computer database that the vehicle was registered to the defendant. The K-9 unit arrived as the officer was in the process of completing the warning citation. The officer completed the warning citation and returned to the defendant’s vehicle. Instead of presenting the warning citation, and because the defendant was acting nervous, the officer ordered the driver out of the vehicle and conducted a pat-down search. Following the pat down, the officer further questioned the driver as to whether he had any guns, drugs or explosives. The driver denied having drugs and refused consent to search. The second officer on the scene performed a dog-sniff on the vehicle that led to the discovery of drugs and the driver was arrested.
The Court held that, per Tindall, the officer’s continued detention of the defendant for questioning exceeded the scope of the initial traffic stop because the purpose of the initial stop ended when the officer completed the warning citation and the only thing left to do was issue the citation. The Court further held, citing to State v. Provet, that the officer did not have “reasonable suspicion of criminal activity to extend the duration of the traffic stop and conduct the search.”
Prolongation before the stop is complete
The next major post-Tindall traffic stop decision from the S.C. Supreme Court occurred in State v. Provet. But unlike Tindall and Hewins, here the analysis is whether prolongation occurred prior to the completion of the traffic stop. Provet focused on the duration of the traffic stop and recognized that police questioning may be unrelated to the purpose of the traffic stop so long as the stop is not measurably extended. The Court instructed that “the proper inquiry is not whether an officer ‘unreasonably’ extended the duration of the traffic stop with his off-topic questions but whether he ‘measurably’ extended it. This is a temporal inquiry, not a reasonableness inquiry.”
In Provet, the officer commenced a traffic stop on the defendant’s vehicle for a burnt out taillight and for following too closely. The officer obtained the defendant’s driver’s license and registration and noticed the registration was in the name of a third party. The officer ordered the driver out of the vehicle and performed a pat down search for weapons. As the officer prepared the warning citation, he asked the driver a series of questions regarding his travel plans and became suspicious. The officer then called both a K-9 unit for backup and dispatch to check the status of the defendant’s driver’s license and registration. The K-9 unit arrived before the completion of the registration check. The defendant’s license and registration check yielded no results and he received a warning citation. After the warning citation was issued, the officer obtained consent to search the vehicle and the officer handling the drug detection dog began his search. The defendant fled and was eventually arrested for drugs found in the vehicle.
The Court of Appeals held that the officer did not unreasonably extend the traffic stop, because “the entire traffic stop amounted to less than eleven minutes.” The Court agreed with the trial court and Court of Appeals’ determination “that ten minutes was a reasonable length of time for the initial traffic stop and that [the] [o]fficer’s off-topic questions did not measurably extend the duration of the stop.”
The most recent traffic stop decision from the S.C. Supreme Court is State v. Morris, where the Court utilized Provet in finding that a 13-minute traffic stop was not unduly prolonged, especially when the actions of the occupants themselves contributed to the duration of the stop.
In Morris, the officer performed a traffic stop on the defendant’s vehicle for following too closely. The officer obtained the driver’s license and registration and ordered the driver to exit the vehicle and accompany him to his patrol car. The officer commenced running the registration and asked the driver several questions regarding his travel plans. The officer then returned to the vehicle and questioned the passenger about the travel plans. The officer received inconsistent stories and called for a K-9 unit. While waiting, the officer conducted a consent search of the driver that yielded no drugs. After multiple requests by the driver, the officer escorted the driver to the restroom. The passenger also requested to use the restroom. As the passenger exited the vehicle, the officer informed the passenger that he smelled marijuana. The passenger consented to a search from the second officer on the scene and no drugs were found. Soon thereafter the occupants refused the officer’s request to search the vehicle. The drug dog arrived and failed to alert during its walk around the vehicle. The officers nevertheless proceeded to search the interior and trunk of the vehicle. The occupants were arrested after drugs were located in the trunk and under the spare tire.
The Court held that the 13-minute stop was not “unduly prolonged or burdensome, especially where a reasonable suspicion to extend the stop existed at the outset,” noting that recently in Provet it found a 10-minute stop to be a reasonable amount of time for an initial traffic stop. The Court also considered the fact that the officers never left the occupants detained “without purpose or instruction,” along with the fact that the occupants’ frequent requests to use the restroom during the stop contributed to its duration. In dissent, Justice Pleicones, citing to Hewins, said it was a “close question whether petitioner’s traffic stop was unlawfully extended.” Nevertheless, Pleicones, citing to Provet, found that the Court should have reversed the Court of Appeals’ affirmance of the denial of petitioner’s suppression motion, reasoning that “once the drug dog failed to alert, the already marginal ‘objectively reasonable suspicion’ to search the vehicle and its trunk evaporated.”
What constitutes reasonable suspicion to prolong the stop?
“Reasonable suspicion depends on ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” And it “requires a particularized and objective basis that would lead one to suspect another of criminal activity.” Courts should consider the totality of circumstances and give credit to “the practical experience of officers who observe on a daily basis what transpires on the street.”
Factors that are alone consistent with “innocent travel” can, when “taken together,” produce a reasonable suspicion of criminal activity. Nervousness of the defendant alone is not sufficient to support reasonable suspicion of “some other crime.” Neither is the fact he or she may have had a prior license suspension for a drug related offense. An officer’s “observations while conducting the traffic stop may create reasonable suspicion to justify further search or seizure.” Again, “[t]he test whether reasonable suspicion exists is an objective assessment of the circumstances; the officer’s subjective motivations are irrelevant.
Facts not supporting reasonable suspicion
In Tindall, at the point the officer informed the driver that he would receive a warning ticket, the officer learned that: (1) he 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. The court found that these facts “did not provide the officer with a ‘reasonable suspicion’ that a serious crime was afoot” and, therefore, the consent was invalid as part of an unlawful detention.
In Hewins, the officer “decided to conduct the pat down, continue questioning, and deploy the drug-detection dog based on the following information: (1) earlier in the evening he had seen Hewins drive in a known drug area; (2) Hewins remained nervous despite being given a warning citation rather than a traffic ticket; and (3) when questioned, Hewins quickly responded that he did not have any drugs.” The court concluded that these facts did not provide the officer with a reasonable suspicion that criminal activity was afoot. The court also distinguished Provet and State v. Wallace, as having “considerably more evidence present” to support a finding of reasonable suspicion.
In State v. Moore, the State argued that a number of factors gave rise to a reasonable suspicion, but the court disagreed. The Court of Appeals found that many of the factors were mere extrapolations of nervousness, while others were either insignificant (evidence of flight since the defendant eventually cooperated during the entire stop) or disingenuous (large amount of cash in pocket and alcohol impairment). What remained, the court reasoned, were factors that were deemed insufficient under Tindall: “Moore was driving to visit a family member, Moore was driving a vehicle rented by a third-party, he was coming from a major city known as a drug hub and traveling along a known drug route, he assumed the felony position, and he displayed nervous conduct throughout the entire stop.” While the Court of Appeals recognized “factors consistent with innocent travel can, when taken together, give rise to reasonable suspicion,” it found the present factors failed to “eliminate a substantial portion of innocent travelers.”
Facts supporting reasonable suspicion
In Provet, the Court agreed with the trial court and Court of Appeals’ determination that the officer gained a reasonable suspicion of criminal activity to perform a second detention. These factors in support included:
(1) Defendant’s extreme nervousness;
(2) The vehicle had a third party registration, which is common in drug trafficking;
(3) Defendant admitted that he was visiting girlfriend A while driving the car registered under girlfriend B;
(4) Defendant claimed that he was driving from the Holiday Inn, but the stop occurred prior to reaching the exit to the Holiday Inn;
(5) Defendant claimed he was staying in Greenville for two days but admitted he had no luggage;
(6) The car contained air fresheners that emitted a strong odor; and
(7) The presence of fast food bags, a cell phone and receipts.
Other noteworthy cases where reasonable suspicion was present include State v. Morris and State v. Wallace.
A well-trained narcotics-detection dog may perform a sniff on the exterior of a vehicle without creating Fourth Amendment concerns because a dog sniff is not a “search” under the Fourth Amendment.
However, absent reasonable suspicion, a dog sniff that prolongs or adds time to the stop, whether performed during the stop or after the completion of the stop, will transform the stop into an unlawful seizure in violation of the Fourth Amendment. This issue of whether the officer obtained reasonable suspicion to justify the prolongation of the stop was remanded for determination by the lower court.
The U.S. Supreme Court also recently addressed the reliability of drug detection dogs. The Court held that an alert from a well-trained or certified drug detection dog created a presumption of probable cause to search the vehicle. But the presumption may be rebutted by evidence undermining the adequacy of the training program or the reliability of the dog’s training history. The general test is “whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.
Stops for speeding and equipment violations
The Fourth Circuit recently held that visual estimates of speed, without other corroborating evidence of reliability (e.g. radar or pacing methods), is unreliable and cannot provide probable cause for a traffic stop.
For equipment violations see Padgett.
The U.S. Supreme Court recently held that an officer’s reasonable suspicion for performing a traffic stop for a violation of the law can rest upon a reasonable misunderstanding of the law. The Court has previously held that searches and seizures based upon mistakes of fact can be reasonable.
The Fourth Amendment traffic stop analysis is an ever evolving patchwork quilt of state and federal jurisprudence. The U.S. Supreme Court recently confirmed that the traffic stop can only last as long as reasonably necessary to issue a warning ticket and perform traffic related inquiries. Any prolongation from an unrelated investigation will be unlawful absent reasonable suspicion. The Fourth Circuit’s acceptance of certain delays caused by matters unrelated to the traffic stop, as analyzed under its de minimis standard and recent diligence inquiry, has been called into question by the U.S. Supreme Court in Rodriguez. South Carolina courts emphasize that an officer’s actions cannot measurably extend the duration of the stop. When analyzing whether prolongation is justified by the presence of reasonable suspicion, South Carolina applies a totality of circumstances analysis while mindful that certain factors indicative of innocent travel cannot be stretched in support of reasonable suspicion. All of these issues require a detailed factual analysis and surely make for interesting suppression hearings.
John Radeck practices with Hood Law Firm, LLC in Charleston.
 23 S.C. Law. 45 (2011-2012).
 United States v. Digiovanni, 650 F.3d 498, 508 (4th Cir. 2011).
 Rodriguez v. United States, No. 13-9972, 2015 U.S. LEXIS 2807, *15 (U.S. Apr. 21, 2015) (citation omitted).
 Id. at *12 (citation omitted).
 Id. at *15 (citation omitted).
 See Arizona v. Johnson, 555 U.S. 323, at 327-28 (2009).
 See Illinois v. Caballes, 543 U.S. 405, at 406-408 (2005).
 See id.
 See United States v. Farrior, 535 F.3d 210, 220 (4th Cir. 2008) (citing United States v. Alexander, 448 F.3d 1014 (8th Cir. 2006) (noting that a dog sniff performed two minutes after the completion of the traffic stop is only a de mimimis intrusion that does not violate the Fourth Amendment)).
 Compare United States v. Digiovanni, 650 F.3d 498, 507 (4th Cir. 2011) (holding that a 15 minute stop was unreasonable and lacked diligence where the officer embarked on a sustained drug investigation from the start and did not perform the driver’s license check until 10 minutes into the stop), with Guijon-Ortiz, 660 F.3d 757 (4th Cir. 2011) (holding that an officer diligently pursued the traffic stop investigation even though he made an unrelated phone call to check on the immigration status of a passenger that extended the stop for a few minutes), and United States v. Green, 740 F.3d 275 (4th Cir. 2014) (finding diligence even though the officer performed a criminal history check that extended the stop by four minutes).
 No. 13-9972, 2015 U.S. LEXIS 2807 (U.S. Apr. 21, 2015).
 See Maryland v. Wilson, 519 U.S. 408 (1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 122 (1977) (ordering the driver and passenger out of the vehicle for the duration of the stop).
 Rodriguez, No. 13-9972, 2015 U.S. LEXIS 2807, *14 (U.S. Apr. 21, 2015).
 Id. at *4.
 388 S.C. 518, 698 S.E.2d 203 (2010) (J. Pleicones) (continued detention of the driver for off-topic questioning after advising the driver that he would receive a warning ticket exceeded the scope of the lawful traffic stop).
 Id. at 522, 698 S.E.2d at 205.
 Id. at 522, 698 S.E.2d at 206.
 Id. at 99, 760 S.E.2d at 817.
 Id. at 100, 760 S.E.2d at 817.
 Id. at 115, 760 S.E.2d at 825.
 Id. The court found State v. Provet, 405 S.C. 101, 111, 747 S.E.2d 453, 458 (2013) (J. Pleicones) and State v. Wallace, 392 S.C. 47, 707 S.E.2d 451 (Ct. App. 2011) distinguishable “as there was considerably more evidence present in those cases to support a finding that the officer had reasonable suspicion of a serious crime to justify the continued detention.”
 405 S.C. 101, 747 S.E.2d 453 (2013) (J. Pleicones).
 As stated by the Court of Appeals: “We conclude the present case is distinguishable from Tindall. In Tindall, the officer questioned Tindall for approximately six to seven minutes after the purpose of the traffic stop was accomplished, and thus, a continued detention occurred. Tindall, 388 S.C. at 522, 698 S.E.2d at 205. Conversely, Owens’ series of questions and observations occurred prior to the conclusion of the traffic stop because Owens was waiting to hear from dispatch regarding Provet’s license and registration and a warning citation had yet to be issued.” State v. Provet, 391 S.C. 494, 504, 706 S.E.2d 513, 518 (Ct. App. 2011).
 State v. Provet, 405 S.C. at 110, 747 S.E.2d at 458 (emphasis added).
 Id. at 111, 747 S.E.2d at 458.
 Id. at 105, 747 S.E.2d at 455.
 Id. at 106-107, 747 S.E.2d at 455.
 Id. at 106, 747 S.E.2d at 456.
 Provet, 391 S.C. 494, 499, 706 S.E.2d 513, 516 (Ct. App. 2011).
 State v. Morris, Op. No. 27488 (S.C. Sup. Ct filed January 28, 2015) (Shearouse Adv. Sh. No. 4 at 41) (rehearing period still open).
 Id. at 42.
 Id. at 43.
 Id. at 46.The Court in Rodriguez rejected the government’s argument that an officer may “‘incremental[ly]’ prolong a stop to conduct a dog sniff so long as the officer is reasonably diligent in pursuing the traffic-related purpose of the stop, and the overall duration of the stop remains reasonable in relation to the duration of other traffic stops involving similar circumstances. Rodriguez, No. 13-9972, 2015 U.S. LEXIS 2807, *14 (citation to brief omitted).
 Id. This language sounds similar to language used as part of the 4th Circuit’s diligence inquiry.
 Id. at 49.
 Navarette v. California, 134 S. Ct. 1683, 1690 (2014)(quotations and citations omitted).
 State v. Pope, 410 S.C. 214, 222, 763 S.E.2d 814, 818 (Ct. App. 2014) (citation omitted).
 State v. Wallace, 392 S.C. 47, 707 S.E.2d 451, 453 (Ct. App. 2011) (citing United States v. Branch, 537 F.3d at 336 (4th Cir. 2008)).
 United States v. Sokolow, 490 U.S. 1, 9 (1989).
 State v. Pichardo, 367 S.C. 84, 104, 623 S.E.2d 840, 851 (Ct. App. 2005) (citing United States v. Sullivan, 138 F.3d 126, at 131 (4th Cir. 1998)).
 See State v. Williams, 351 S.C. 591, 571 S.E.2d 703 (Ct. App. 2002).
 Provet, 405 S.C. 101, 109, 747 S.E.2d 453, 457 (2013) (citing Pennsylvania v. Mimms, 434 U.S. 106, at 111-12 (1977)).
 State v. Hewins, 409 S.C. 93, 115, 760 S.E.2d 814, 825 (2014) (citing Provet at 108, 747 S.E.2d at 457).
 392 S.C. 47, 707 S.E.2d 451 (Ct. App. 2011).
 Hewins, 409 S.C. 93, 760 S.E.2d 814 at n.7.
 404 S.C. 634, 746 S.E.2d 352 (Ct. App. 2013), reh’g denied (Sep. 27, 2013), cert granted (Nov. 20, 2014).
 Id. at 643, 746 S.E.2d at 356-57 (listing 14 factors).
 See Id.
 Id. at 644, 746 S.E.2d at 357.
Id. (citing Digiovanni, 650 F.3d 498, 511-13 (4th Cir. 2011). In dissent, Judge Few disagreed with the majority on procedural grounds (majority violated the “any evidence” standard of review set forth in Tindall by discounting two key factual findings by the trial court. Id. at 648, 746 S.E.2d at 359) and substantive grounds (numerous observations made by the officer, when considered as a whole and in conjunction with the officer’s high level of experience, support the trial courts finding of reasonable suspicion). Id. Both the Court of Appeals and the S.C. Supreme Court recently emphasized that the any evidence standard of review prevents an appellate court from reversing a trial court’s findings of facts merely because it would have reached a different conclusion. See State v. Pope, 410 S.C. 214, 222, 763 S.E.2d 814, 818 (Ct. App. 2014); Robinson v. State, 407 S.C. 169, 185, 754 S.E.2d 862, 870 (2014).
 405 S.C. 101, 112, 747 S.E.2d 453, 459 (2013).
 Provet, at 112-13, 747 S.E.2d at 459 (2013) (“We agree with the Court of Appeals’ analysis in the opinion below that the totality of the circumstances in this case provides more objective, articulable facts to justify Officer’s suspicion than were present in Tindall”).
 Op. No. 27488 (S.C. Sup. Ct filed January 28, 2015) (Shearouse Adv. Sh. No. 4 at 41) reh’g period not expired (reasonable suspicion present under the totality of circumstances: smell of marijuana, observation of several hollowed out cigars indicative of drug use, inconsistent travel plans given by the occupants, presence of several empty energy drink cans indicative of a need to stay awake for long periods of time while driving, and the fact that the vehicle was rented indicated drug trafficking).
 392 S.C. 47, 707 S.E.2d 451 (Ct. App. 2011), cert granted (Apr. 5, 2012), cert dismissed Dec. 19, 2012) (reasonable suspicion present under the totality of circumstances through the State’s citation of 13 factors including an inconsistent story and nervousness).
 Illinois v. Caballes, 543 U.S. 405 (2005) (holding that a dog sniff is not a “search” because there is no legitimate interest in possessing illegal drugs, where the dog sniff did not extend the traffic stop or create an new unlawful seizure); But see Florida v. Jardines, 133 S. Ct. 1409, 1417-1418 (2013) (“[t]he government’s use of trained police dogs to investigate the home and its immediate surroundings is a “search” within the meaning of the Fourth Amendment”).
 Rodriguez v. United States, No. 13-9972, 2015 U.S. LEXIS 2807 (U.S. Apr. 21, 2015) (holding that a dog sniff performed seven or eight minutes after the officer issued a warning ticket prolonged the traffic stop and transformed it into an unlawful seizure.
 Florida v. Harris, 133 S. Ct. 1050 (2013).
 Id. at 1052.
 Id. at 1053.
 United States v. Sowards, 690 F.3d 583 (4th Cir. 2012)(visual estimate by a single officer that driver was travelling 75mph in a 70mph zone not reliable, where no other corroborating evidence present, and where officer lacked basic understanding of measurements). But see United States v. Mubdi, 691 F.3d 334, 341 (4th Cir. 2012)(vacated and remanded on other grounds) (visual speed estimate reliable where corroborated by second officer).
 State v. Padgett, 354 S.C. 268 at 273, 580 S.E.2d 159 at 162 (officer gained reasonable suspicion to perform traffic stop after observing vehicle with missing license plates, because “[a]s long as an officer reasonably suspects the driver is violating ‘any one of the multitude of applicable traffic and equipment regulations,’ the police officer may legally stop the vehicle.”); State v. Butler, 353 S.C. 383, 390, 577 S.E.2d 498, 501 (Ct. App. 2003)(reasonable suspicion present from burnt out taillights). For other relevant cases from the 4th Circuit and a collection of vehicle stop cases in general, See Criminal Procedure For South Carolina Practitioners § 16.B.
 See Heien v. North Carolina, 135 S. Ct. 530, 540 (2014) (upholding arrest for drugs uncovered during traffic stop that was initiated under the mistaken suspicion that having one of two brake lights burnt out violated a state statute) (emphasis added).
 Id. at 536.
 378 S.C. 615, 618, 664 S.E.2d 460, 461 (2008).
 399 S.C. 507, 515, 732 S.E.2d 218, 221 (Ct. App. 2012).