By The Honorable Earl G. Penrod, Senior Judge | Indiana Judicial Outreach Liaison, IOCS Education Division
A police officer sees a vehicle pass by, but doesn’t see the driver. The officer doesn’t observe any traffic or improper driving violations, but runs the license plate and learns the registered owner has a suspended operator’s license. The officer stops the vehicle and immediately notices a strong odor of alcohol and multiple signs of impairment. Defendant tests .14% on a certified test; he is arrested and charged with OVWI. A motion to suppress all evidence is filed based on an improper stop under the Fourth Amendment. How would you rule?
Fourth Amendment and Traffic Stops
In the 1970s, the U.S. Supreme Court made it clear that the Fourth Amendment applies to the stopping of a motor vehicle by holding that random stops to check licenses and registrations were unreasonable seizures. Delaware v. Prouse, 440 U.S. 648 (1979). Since the Prouse decision, courts have occasionally provided guidance as to what constitutes a valid reason for a vehicle stop, but there is no doubt from caselaw that the observation of a traffic violation satisfies the Fourth Amendment, even if the officer has an ulterior motive in making the stop.
Generally, a stop based on a traffic offense is considered analogous to a relatively brief Terry stop, which to be reasonable must last no longer than is necessary to effectuate the purpose of the stop. Upon making a valid stop for a traffic infraction, the stop should last no longer than necessary for the officer to handle the processing of a traffic citation. However, if the officer develops reasonable suspicion or probable cause for criminal conduct other than the initial traffic violation during the stop, the officer is authorized to extend the stop.
The permissible length of a routine traffic stop has been addressed in various cases, including those involving utilization of a drug dog. The U.S. Supreme Court has held that even if the officer has no suspicion of the presence of drugs, an open-air canine sniff of a vehicle roadside does not violate the Fourth Amendment, so long as the dog sniff occurs during the time reasonably required to complete the traffic stop. However, if the stop is extended at all to conduct the canine sniff, it is improper. See Rodriguez v. U.S., 575 U.S. 348 (2015).
Vehicle stops may be based on reasonable suspicion of unlawful conduct. Reasonable suspicion is more than a mere hunch but less than probable cause. Reasonable suspicion and probable cause for vehicle stops are occasionally addressed and sometimes confused in caselaw. Analyzing the sufficiency of evidence that supports a stop is made even more difficult by that confusion as well as the variety of circumstances surrounding traffic stops.
Reasonable suspicion is based on the totality of the circumstances and requires an officer to have a particularized and objective basis for suspecting the person stopped of criminal activity. It rests on probabilities and not certainties.
Officers may rely on reasonable inferences resulting from the circumstances surrounding the stop. It is insufficient for an officer to “just know” or “feel it in my bones” that something is going on to warrant an investigatory stop. While some officers may seem to have good intuition for sensing trouble, the inability to adequately articulate the basis of the suspicion means the stop is invalid and evidence obtained is inadmissible.
9-1-1 Call from unidentified caller
In an important impaired driving case, the U.S. Supreme Court addressed reasonable suspicion by upholding the validity of an investigatory stop for drunk driving based on an anonymous 9-1-1 call. Navarette v. California, 572 U.S. 393 (2014). Justice Thomas, writing for the majority, held that sufficient indications of reliability existed for the officer to make the investigatory stop based on the specificity of the information provided. Significantly, the Court also held that if there is reasonable suspicion based on the totality of the circumstances, the officer is not required to personally observe suspicious or dangerous driving before making the stop.
Common Sense Standard
Earlier this year, the U.S. Supreme Court again discussed reasonable suspicion to stop a vehicle in circumstances similar to the scenario at the start of this column. Specifically, in an 8 to 1 decision, the Court reversed the Kansas Supreme Court by holding that there was reasonable suspicion to stop a vehicle when the officer learned that the registered owner had a revoked license. Kansas v. Glover, 140 S.Ct. 1183 (2020). The Court held that the stop was reasonable because it is common sense that the driver of a vehicle is likely to be the registered owner. If the officer has no information negating the inference that the owner is the driver, the stop is valid.
Although the Glover decision reversed the Kansas Supreme Court, a majority of state appellate courts ruling on the issue have found that such a stop was valid, including the Indiana Supreme Court in Armfield v. State, 918 N.E.2d 316 (Ind. 2009).
The Glover decision was narrow because of the limited question presented to the Court through stipulation. Glover does NOT address what happens if the initial stop is valid but upon approaching the vehicle, the officer’s suspicion is satisfied.
For example, what if, upon approaching the vehicle, the officer observes a male driver while the computer lists the registered owner as a female? Because the reasonable suspicion for the stop has evaporated, may the officer proceed to the vehicle and explain to the driver the circumstances of the stop? What about asking for a license and registration? In approaching a vehicle and engaging the driver, an officer might observe evidence and develop reasonable suspicion or probable cause of criminal activity.
Although the U.S. Supreme Court has not weighed in, a number of state courts have done so, including the Indiana Supreme Court in Holly v. State, 918 N.E.2d 323 (Ind. 2009), handed down at the same time as the Armfield decision. In Holly, a divided Court held that it was improper for the officer to ask for license and registration from the driver after reasonable suspicion no longer existed. A female was the registered owner of the car and had a suspended license, but the driver of the car was a male. Not surprisingly, states have reached different conclusions on what is reasonable under similar circumstances.
In adjudicating impaired driving cases, the criminal justice system is properly focusing considerable attention on evidence-based sentencing initiatives, such as mandatory assessments and treatment, DWI Courts, and other proven programs. However, judges and all criminal justice stakeholders must remain mindful that every defendant is entitled to due process, and judges must be prepared to properly rule on a defendant’s claim of a violation of constitutional rights. After all, a violation of a defendant’s constitutional rights should never be trivialized as a mere technicality or a time-consuming inconvenience for the system.