Suspended license justifies expansion of traffic stop investigation
The court determines if the driver's suspended license allows extension of the time and scope of the traffic stop
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 982259 (8th Cir. 2022)
A driver pulled up next to a trooper parked in the median of a highway. The driver told the trooper that a red sedan was driving the wrong way (westbound in an eastbound lane) on the highway. The trooper drove in the direction of the reported red sedan and saw a red Chevrolet Impala at a stop sign in a rest area waiting to turn westbound onto the highway. The trooper observed an extremely dark tint on the Impala’s windows and thought the windows were tinted darker than state law allowed. After the Impala drove past him, he initiated a traffic stop.
The trooper approached the Impala and spoke with the driver, Jose Perez. Perez was wearing a black gaiter pulled down around his neck and a black glove on his left hand. The trooper measured the window tint and determined the tint violated state law. He asked Perez for identification, vehicle registration and proof of insurance. Perez claimed to have no identification, explaining he left his driver’s license at a hotel in Nebraska, then admitted his license was suspended. He could not provide proof of registration or insurance for the Impala and neither could his two passengers. The passengers gave inconsistent answers as to the Impala’s ownership.
The trooper commanded Perez to get out of the Impala and come to his patrol car. When he thought he saw Perez hiding or reaching for something as he was exiting the Impala, the trooper ordered Perez to show his hands. The trooper asked if Perez had any weapons on his person and Perez said he did not, consenting to a pat-down search. The trooper found a knife with a four-inch blade in Perez’s front pants pocket, then handcuffed Perez and told him he was not under arrest. A second pat-down revealed multiple cell phones and Perez’s Texas driver’s license taped to a phone.
Dispatch confirmed Perez’s license was suspended, and that Perez had an active arrest warrant in Colorado. The trooper decided to arrest Perez for driving with a suspended license. A third pat-down revealed an empty holster tucked into the front waistband of Perez’s pants and a handkerchief with five .45 caliber bullets wrapped inside.
While the trooper was waiting for backup, he asked Perez to consent to a vehicle sniff by his police service dog. Perez refused. However, relying on highway patrol protocol, the trooper proceeded with an exterior sniff after a second officer arrived. The dog positively indicated the presence of the odor of controlled substances. Based on the dog’s indication, the trooper searched the Impala, finding cocaine, methamphetamine and a gun. A subsequent inventory search of the vehicle at the scene revealed no additional contraband. Several days later, the trooper performed a second inventory search at the impound lot, locating two additional handguns and three bags of methamphetamine. A final search, conducted pursuant to a search warrant, revealed more ammunition, 459 additional grams of methamphetamine, drug paraphernalia and a stun gun.
Perez asked the trial court to suppress the evidence found in the car based on the prolonged nature of the initial traffic stop and minor departures from highway patrol policy in conducting the inventory search. The trial court denied the motion, ruling the investigation was not improperly extended. The court reasoned that Perez’s lack of candor in his answers to the trooper’s questions, as well as the lack of proof of registration, insurance and ownership, justified a further investigation. The court also ruled there was no evidence suggesting the trooper did not properly follow the highway patrol impound policy requirements for completing an inventory form or that he did not follow any other provision of the policy.
The appellate court affirmed, finding the traffic stop was not impermissibly extended due to the discovery of narcotics and a firearm. The court held that the trooper had reasonable suspicion to expand the investigation beyond the initial concern with wrong-way driving and illegal window tint. The court also held that the trooper substantially complied with departmental policy in conducting the inventory searches, specifically rejecting a claim that the second inventory conducted at the impound yard was improper because it was not specifically allowed by the highway patrol impound policy. The trooper testified that the initial inventory search on the side of the highway while he was waiting for the tow truck was rushed because the sun was going down and it was getting dark. The court held the second inventory search was reasonable given the rushed circumstances of the first search on the roadside.
The court of appeals also easily set aside Perez’s claim that the detector dog was not reliable. In Florida v. Harris (568 U.S. 237 (2013)), the Supreme Court held:
If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’ s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.
The detector dog was certified under standards established by the North Dakota Peace Officer Standards Training Board. Those standards mirror the certification protocol of the Wyoming Police Service Dog Association. Though the dog did not have a perfect detection rate, “her degree of accuracy, however, is higher than the accuracy rates of other drug-sniffing dogs which have been deemed reliable” and she had been “certified by a bona fide organization.”
The most significant, distinguishing factor in defeating Perez’s claim that the stop was impermissibly extended in violation of Rodriguez v. United States (575 U.S. 348 (2015)) was the early discovery of his suspended license, compounded by his lies, which served as the basis for making a custodial arrest. Following that, the trooper conducted the investigation by the numbers, defeating Perez’s suppression motion.
NEXT: Window tint stop by the numbers supports seizure of 2 kilos of cocaine