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No stop + no detention + consent = valid search

Even though the appellate court held the subject was not seized, the court noted that the troopers had reasonable suspicion to detain her on suspicion of drug trafficking

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United States v. Howard, 2023 WL 2998998 (1st Cir. 2023)

A state trooper was driving home at the end of his shift when he saw a car off the road that had apparently crashed into a snowbank. The trooper saw four people standing around the crashed car. The crash site was miles away from the nearest exit or service plaza. He radioed dispatch and requested a tow truck. As he got out of his patrol car, three of the people walked up to him; Yolanda Howard, the fourth person, turned and walked through the snow in the opposite direction. One person was a witness; the others were the driver and a passenger of the crashed car.

As the trooper spoke to the driver and passenger, Howard kept her distance. Twice she walked onto the roadway and the trooper called to her to get out of the road. The stories told by the driver and passenger weren’t adding up, and the passenger initially gave a false name in the hopes his arrest warrants wouldn’t be discovered.

When backup troopers arrived, one trooper invited Howard to sit in a patrol car. It was eight degrees outside and Howard seemed eager to get out of the cold. Before allowing her to sit in his car, the trooper asked Howard whether he needed to be concerned about anything in her bag and asked her to hand it to him. She handed over the bag, and he placed it in the back seat of the patrol car. Then, he conducted a limited pat down of her jacket pockets for safety purposes.

When a sergeant arrived, he asked Howard, “Mind if we search those items?” referring to Howard’s bag on the back seat. She responded, “Huh?” The sergeant again asked, “Do you mind? Can we search the items?” Howard then responded affirmatively. A trooper searched the bag and found narcotics. He informed the sergeant, who arrested and handcuffed Howard.

Howard was indicted for possession with intent to distribute a mixture or substance containing fentanyl, cocaine and cocaine base. She filed a motion to suppress, arguing the evidence was obtained in violation of her Fourth Amendment rights. The trial court denied the motion and Howard appealed.

Relying on Rodriguez v. United States (575 U.S. 348 (2015)), Howard argued the troopers unlawfully prolonged the traffic stop to call for a drug detection dog team. The appellate court quickly dismissed that argument, reasoning the troopers played no part in bringing the car to a halt: “Because no traffic stop occurred here, we need not employ the Rodriguez framework.” However, the court clarified, “Just because this was not a traditional traffic stop does not mean that a Terry stop—a specific type of Fourth Amendment seizure—did not occur when troopers arrived on scene.”

A Terry stop is “a brief detention that permits a police officer to approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest” Terry v. Ohio (392 U.S. 1 (1968)). A Terry stop occurs “whenever a police officer accosts an individual and restrains his freedom to walk away.” To determine whether an encounter is a seizure and thus likely a Terry stop, courts focus on whether, in view of the totality of the circumstances, a reasonable person would have believed he was not free to leave.

Howard was stuck on the side of the road because her friend crashed into a snowbank on a slick road. Howard was not on the road as the result of any actions by the troopers, and they did not tell her she could not leave. The troopers saw Howard avoiding them. The only instruction before a trooper’s request to see Howard’s identification was a safety precaution for her to stay out of the roadway. Even in light of the troopers’ use of emergency lights and the request for identification, the court held that a reasonable person in Howard’s position would not be led to believe she could not leave.

Even though the appellate court held Howard was not seized, the court noted that the troopers had reasonable suspicion to detain her and the others on suspicion of drug trafficking. The troopers had observed Howard’s movements, spoken with the other vehicle occupants, and learned they appeared not to know one another and that their travel stories were inconsistent. The troopers also knew the driver had no vehicle registration or insurance and that the male passenger had provided a false name, likely because he had outstanding warrants. Finally, the appellate court held the trial court properly concluded Howard had voluntarily consented to the search of her bag and that she was not detained until the illegal drugs were found.

Read more Ken Wallentine case reviews here.

Ken Wallentine is the chief of the West Jordan (Utah) Police Department and former chief of law enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.