This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!
UNITED STATES V. PEREZ, 2022 WL 1042500 (4th Cir. 2022)
A confidential informant (CI) told police Joffrey Perez was selling large amounts of heroin and methamphetamine. An officer learned the car Perez was driving had an expired registration tag and pulled him over. The officer also noted the car’s temporary tag, which had expired two days earlier, was issued by the Moore Automotive Group. Having seen a similar tag during a previous investigation involving a fictitious tag, the officer suspected Perez’s expired, temporary tag was also fictitious.
Several officers were at the scene, suggesting this was no mere expired registration investigation, though the prosecution later stipulated the sole purpose of the stop was to investigate traffic infractions rather than suspected narcotics activity. A detective approached Perez, sitting in the driver seat, while the patrol officer stood on the passenger side. As the detective spoke with Perez, the patrol officer examined the temporary tag and radioed that he had pulled over a car with a fictitious tag.
The detective asked for Perez’s driver’s license but didn’t immediately ask for the vehicle registration papers. The detective contacted dispatch to confirm the status of Perez’s driver’s license because he didn’t have an in-car computer in his unmarked car. About four minutes and 15 seconds into the stop, the detective told the patrol officer that Perez’s “license should not be good” and to begin “working” it up. The detective also said, “The canine unit should be on the way.”
The patrol officer returned to his car and began looking up Perez’s license on his in-car computer. A third officer assisting with the stop asked whether the patrol officer “had paperwork for the car.” The patrol officer responded, saying he would “ask about that in a minute.” Officers asked Perez for the car registration, but Perez did not produce it. During this time, the detective was speaking with Perez at the driver side window.
At about the six-minute mark, the detective told Perez to get out of the car. Two minutes later, the patrol officer announced Perez had a suspended license because of two prior convictions for driving while impaired. The patrol officer continued investigating Perez’s license history and gathering the information necessary to issue a citation. At roughly 11 minutes and 50 seconds into the stop, the patrol officer reminded another officer to record the VIN from the plate on the dashboard and asked another officer to find the registration paperwork. Officers then discovered the car was not registered to Perez and that the actually issued tag was valid for another month, though the tag displayed on the car was expired.
At about 15-and-one-half minutes into the stop, the canine unit arrived. The dog performed an exterior sniff, indicating a positive response for the odor of illegal drugs near the driver side and the trunk. The patrol officer communicated this result to the detective and other officers, before seizing the fictitious tag and searching the car. During the search, the officers found methamphetamine and firearms. Officers arrested Perez and arranged for the car to be towed.
Perez asked the trial court to suppress the methamphetamine and firearms seized during the stop. He argued the officers unconstitutionally prolonged the stop to conduct the dog sniff. The trial judge recognized that there was “no doubt the officers were hoping to find contraband as a result of this search.” Nonetheless, their “subjective state of mind” was irrelevant because the question was “whether anything they did reasonably or unreasonably prolonged the stop.” The trial court noted the officers were investigating three separate infractions (the expired tag, a possible fictitious tag and a possible driver’s license revocation). The court observed that the law doesn’t require the officers to conduct the investigations “as fast as possible,” as long as the duration of the stop is “reasonable.”
The trial court stated the officers could possibly have been more efficient and completed the stop more quickly if they had better coordinated their investigations. The patrol officer blamed his slow work on being “a poor multitasker.” Though the judge “shared Perez’s suspicions about why the car was stopped,” he reasoned that the officers were investigating multiple infractions which took more time than a simple investigation of an expired registration tag.
The appellate court, like the trial court, acknowledged this was not a routine traffic stop. The court cited the presence of several officers, including detectives, and the call for a detector dog team at the beginning of the stop. Even a very brief delay in a traffic detention without reasonable suspicion of drug possession is not permitted to accomplish a dog sniff (Rodriguez v. United States, 575 U.S. 348 (2015)). The court stated there was “no dispute that the officers lacked reasonable suspicion of additional criminal activity to justify the dog sniff.” Thus, the evidence obtained from the dog sniff could only be admissible if the sniff occurred during the reasonable amount of time required to complete the traffic stop.
The appellate court held the stop could have been completed in less time. However, the court also held that the investigation was not impermissibly prolonged, as the officers’ actions were reasonably related to investigating an expired temporary registration. The “acceptable length of a routine traffic stop can’t be stated with mathematical precision,” but the officers here were diligent enough to pass constitutional muster.
A concurring judge expressed great skepticism at the length of the stop and the apparent (though lawful) pretext to conduct a detector dog sniff. The judge wrote a separate opinion “to emphasize that law enforcement officers may not deliberately draw out an investigation of a traffic stop to give a canine unit time to arrive and conduct a dog sniff.” The concurring opinion focused on the fact that the car was impounded under a department policy requiring an impound and tow when a car displayed a fictitious tag.
An acceptable alternative path of investigation would have been to arrest Perez for driving with a suspended license and impound the car based on the fictitious registration. The detector dog could have sniffed while waiting for a tow truck or in assistance in the inventory required by a reasonable impound policy. Consider whether that alternative would be preferable under your local practices.