Detained During a Traffic Stop – Time Does Matter

This article is a review of a 3rd Circuit Court of Appeals cased where troopers conducted a traffic stop and recovered nearly 20 pounds of heroin1. Trooper Michael Volk was patrolling the Pennsylvania Turnpike in an unmarked unit as a member of the agency’s Drug Interdiction Unit. This case lends itself to some important points about holding a suspect without probable cause and a number of questions related to extending the length of the stop to allow for a drug-sniffing dog to arrive.

Facts

On April 3rd Volk pulled over a vehicle for following too closely. The driver and passenger claimed they were taking a trip to New Jersey to breed the dog in the back seat. Volk observed the dog and sent the vehicle on its way. A subsequent records check showed that the driver had several convictions for drug offenses.

On April 4th Volk pulled over a vehicle operated by the defendant – Warren Charles Green. The defendant claimed he was going to see family in Philadelphia and he did not know how long he would be staying there. A records check turned up a number of arrests for drugs and weapons charges. After several minutes Volk issued Green a warning for a window tint violation and obtained Green’s consent to search the car. The trooper did not discover any contraband but did detect a strong smell of raw marijuana in the trunk and observed that the lining had been pulled down in several areas. Green was then sent on his way.

On April 5th Trooper Volk observed Green’s vehicle on the Turnpike heading in the opposite direction. The trooper “paced” Green’s vehicle and determined that Green was driving 79 MPH in a 65 MPH zone. Green was pulled over and explained to the trooper that he had left his cruise control on while going down a hill. The trooper asked him how he was doing and Green answered “I can’t complain I got a dog, so”. Volk looked in the rear of the car and saw a dog that he believed was the same dog that was in the vehicle he had stopped on April 3rd. As the conversation continued, Green explained he left Philadelphia early because his daughter had suffered a broken leg. The trooper returned to his vehicle where he called for a K-9 unit and a backup.

Vol also called a fellow trooper on his phone and had a 2-3 minute conversation with the other trooper concerning the current stop and the motor vehicle stops from the previous 2 days. Trooper Volk then returned to Green’s car and questioned him about the dog but Green could not recall the breed of dog or the place he had purchased the dog from. The trooper then issued a warning and asked Green if he could search his car. Green refused saying he was in a hurry to get home.

Green was then instructed to wait in his car and 15 minutes later a K-9 unit arrived and alerted to drugs in the vehicle. Volk applied for a search warrant and a few hours later executed the search warrant and uncovered bricks of heroin totaling nearly 20 pounds.

At trial, Green claimed that the drugs must be suppressed because the trooper impermissibly extended the traffic stop. The trial court denied Green’s Motion to Suppress, he subsequently pled guilty and was sentenced to 10 years. This appeal followed.

3rd Circuit Finding

In its decision, the 3rd Circuit reviewed the Supreme Court’s ruling in Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015). In the Rodriguez case the US Supreme Court overruled an 8th Circuit decision that prolonging a traffic stop by 7 or 8 minutes to allow a dog sniff was a “de minimis intrusion” on Rodriguez’s 4th Amendment protections. The Court held that the question is not whether the dog sniff occurred before or after a ticket was issued but, rather, did the dog sniff add time to the the actual stop. Absent independent facts and circumstances that support reasonable suspicion of a crime, any additional time would be unlawful.

Against that backdrop the 3rd Circuit then attempted to identify what they referred to as the “Rodriguez moment”. That is to say the point at which the purpose of the traffic stop ended. At that point, prolonging the stop can only be supported by articulable facts that rise to the level of Reasonable Suspicion. More importantly, those facts must be known to the officer at the moment the stop is prolonged.

So, when did the court identify the so-called Rodriguez moment? Well, I’m sure most of us would identify the end of the traffic stop as that moment when the trooper issued Green the warning and then told him to sit in his car and wait for the K-9 unit to arrive. Actually, the 3rd Circuit determined they would “err on the side of caution” and determined that the Rodriguez moment occurred after the Trooper returned to his car and had the phone conversation with the other trooper. The court rationalized that this was the “Rodriguez moment” because the officer was engaged in activity not related to the motor vehicle violation.

The court then went on to determine whether, at the moment Trooper Volk engaged in the phone conversation with the other trooper, there was reasonable suspicion to extend the stop. Fortunately, the court determined that there was reasonable suspicion and listed several factors that supported their finding. These factors included:

  • Green’s statements during the initial stop on April 4th and the stop on April 5th were contradictory,
  • Green first claimed that he was having a good day and then claimed he was going home early because his daughter broke her leg;
  • The fresh smell of raw marijuana detected in the car on April 4th even though no drugs were found during that stop made it reasonable for the officer to believe the car was used for transporting drugs; and
  • Green’s prior history of drug offenses.

Summarizing these factors, the court determined that it must step back from the individual factors and look at the factors as a “whole picture”. Under the totality of the facts known to Trooper Volk, there was reasonable suspicion that Green may be engaged in criminal activity.

Summary

This case illustrates the current conflicts among the various circuit courts concerning the identification of the “Rodriguez moment” during a traffic stop. Some circuits have taken a strict interpretation of the Supreme Court’s ruling and determined that any activity by an officer outside of records and motor vehicle information checks may impermissibly prolong the stop. Other circuits have taken a slightly more lenient approach deciding that waiting for backup or asking a series of questions where “most of the questions” relate to the traffic stop do not impermissibly prolong the stop.

Most importantly, the Supreme Court in Rodriguez made it clear that there is no bright line rule such as the point at which a ticket is issued. As the court noted “there is no bonus time to pursue unrelated criminal investigations by completing the traffic- related activities expeditiously”.


1 United States v. Green, 2018 U.S. App. LEXIS 20655 (3d Cir. PA July 25, 2018)