United States v. Jamar Hunter ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-3316
____________
UNITED STATES OF AMERICA,
Appellant
v.
JAMAR HUNTER
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No. 2-19-cr-00635-001)
District Judge: Honorable Juan R. Sánchez
__________
Argued December 13, 2022
__________
Before: RESTREPO, McKEE and SMITH, Circuit Judges
(Filed: December 5, 2023)
Meaghan Flannery
Matthew T. Newcomer [Argued]
Jennifer A. Williams
OFFICE OF UNITED STATES ATTORNEY
Eastern District of Pennsylvania
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellant
Salvatore C. Adamo, Esq. [Argued]
1866 Leithsville Road
#306
Hellertown, PA 18055
Counsel for Appellee
__________
OPINION
_________
RESTREPO, Circuit Judge
Law enforcement officers conduct traffic stops every
day. No matter how minor the apparent infraction, every traffic
stop must comply with the Fourth Amendment. It wraps every
person, and every traffic stop, with a cloak of constitutional
protection. The Fourth Amendment also permits the
consideration of officer safety when confronting a potentially
dangerous situation. Weighing those concerns, we must decide
whether the use of a criminal record check, lasting
approximately two minutes, can be an objectively reasonable
2
safety precaution related to the mission of the traffic stop under
Rodriguez v. United States, 575 U.S. 348 (2015) and the Fourth
Amendment.
It can. We therefore will reverse the District Court’s
grant of the suppression motion and remand for further
consideration.
I.
A.
This traffic stop, which lasted less than eight minutes in
its entirety, began like many others—with a police officer
spotting minor traffic violations.1 On December 12, 2018,
Pennsylvania State Trooper Galen Clemons stopped a rented
Chrysler 300 in Ridley Township, Pennsylvania. Neither the
reason for the stop nor the legality of the stop at its outset is
disputed. Clemons traveled alone—without a partner or back-
up—and approached the car to discover two occupants: the
driver, Jamar Hunter, and a front seat passenger, Deshaun
Davis.2 After Hunter and Davis provided identification,
1
The traffic violations included the following: (1) speeding
(traveling at fifty-eight miles per hour in a thirty-five miles per
hour zone); (2) changing lanes without signaling; and (3)
crossing over a solid line while changing lanes.
2
The District Court discredited Clemons’ testimony regarding
Hunter’s nervousness and Davis’ evasiveness, noting that “the
dashcam video fail[ed] to support his description.” J.A. 7 nn.3–
4. The District Court also found much of Clemons’ testimony
to be “generalized” and “exaggerated.” Id. Although we
exercise plenary review on questions of law, the District
Court’s credibility findings merit deference. See Anderson v.
City of Bessemer City, N.C., 470 U.S. 564, 575 (1985)
3
Clemons returned to his patrol car to perform a routine license
and warrant check, also known as a “CLEAN N.C.I.C.” check.3
This check revealed that both men had valid driver’s licenses
and no outstanding arrest warrants. It is at this point that
Hunter alleges the mission of the traffic stop ended and
Clemons no longer had constitutional authority to prolong the
stop.
Immediately after the routine check, Clemons
performed an additional check that extended the traffic stop: a
computerized criminal history check, also known as a “Triple
I” check.4 He spent around five minutes conducting both
checks in his patrol car, with the Triple I check taking
approximately “a minute or two.” J.A. 254. This computerized
criminal history check revealed that both Hunter and the
passenger had significant criminal histories, including firearm
and drug trafficking convictions.
Armed with this information, Clemons returned to
Hunter’s car. The officer ordered Hunter out of the car so that
he could perform a Terry frisk, during which he discovered a
loaded Glock-45 semi-automatic handgun in Hunter’s
waistband. He immediately arrested Hunter. The entire traffic
stop lasted less than eight minutes.
(concluding that credibility determinations made by the trial
judge demand great deference).
3
“CLEAN N.C.I.C.” refers to Commonwealth Law
Enforcement Assistant Network National Crime Information
Center.
4
The Triple I check retrieves criminal records from the same
network as CLEAN N.C.I.C.
4
B.
Following his arrest, a federal grand jury indicted
Hunter for possession of a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). Hunter moved to suppress
the gun seized from him during the traffic stop on the basis that
Clemons’ use of the Triple I check impermissibly exceeded the
traffic stop’s mission, and thus any evidence recovered after
Clemons conducted the Triple I check should be suppressed
under the Fourth Amendment. The District Court granted the
suppression motion based on the following determinations: (1)
Clemons lacked sufficient reasonable suspicion before
conducting the criminal history check; (2) the criminal history
check was unrelated to the traffic stop’s mission; (3) the
criminal history check prolonged the traffic stop; and (4) the
criminal history check therefore impermissibly exceeded the
stop’s mission and violated Rodriguez and the Fourth
Amendment. The Government timely appealed on two
grounds: (1) the District Court erred when it applied a
subjective standard of review; and (2) therefore erred as a
matter of law in concluding that this criminal record check was
an off-mission detour pursuant to Rodriguez and the Fourth
Amendment.
We address both arguments in turn.
5
II.5
A.
The Fourth Amendment protects individuals against
unreasonable searches and seizures. U.S. CONST. amend. IV.
A traffic stop, however brief, constitutes a seizure under the
Fourth Amendment and is subject to review for
reasonableness. See Whren v. United States, 517 U.S. 806,
809–10 (1996); see also United States v. Clark, 902 F.3d 404,
409 (3d Cir. 2018). Courts must review reasonableness
through an objective lens, Ohio v. Robinette, 519 U.S. 33, 39
(1996), and should not consider the actual or subjective
intentions of the officer involved, Whren, 517 U.S. at 813.
In granting the suppression motion, the District Court
erroneously applied a subjective standard rather than the
constitutionally required objective standard. Specifically, the
District Court considered Clemons’ subjective testimony that
he routinely, but not always, performs the criminal history
check during traffic stops. The District Court credited
Clemons’ testimony that he would sometimes employ this
check “to bolster [his] reasonable suspicion.” J.A. 25, 255.
Grounding its reasoning in this subjective testimony, the
District Court concluded that “[t]he criminal background check
was thus not tied to the traffic stop’s mission.” J.A. 13.
5
The District Court had subject matter jurisdiction under 18
U.S.C. § 3231 and this Court has appellate jurisdiction
pursuant to 18 U.S.C. § 3731. We review a district court’s
decision to grant a motion to suppress under a “mixed standard
of review.” United States v. Tracey, 597 F.3d 140, 146 (3d Cir.
2010). We review findings of fact for clear error but exercise
plenary review over legal determinations. Id.6
Clemons’ subjective intent is immaterial and should not
be considered when evaluating whether the use of the criminal
history check, when viewed objectively, was justified under
the circumstances. Scott v. United States, 436 U.S. 128, 138
(1978) (“[T]he fact that the officer does not have the state of
mind which is hypothecated by the reasons which provide the
legal justification for the officer’s action does not invalidate
the action taken as long as the circumstances, viewed
objectively, justify that action.”). The District Court therefore
erred as a matter of law, and we will reverse.
B.
We review de novo the question of whether the use of
the criminal history check in this case was objectively
reasonable and proper under Rodriguez. To be reasonable, a
traffic stop must be justified at its inception and the officer’s
actions during the stop must be reasonably related to “the
mission of the stop itself.” Rodriguez, 575 U.S. at 356.
Rodriguez defines a traffic stop’s mission to include
completing “tasks tied to the traffic infraction,” such as issuing
a traffic ticket, checking the driver’s license and any
outstanding warrants, and inspecting registration and
insurance. Id. at 354–55. Rodriguez also permits the use of
“certain negligibly burdensome precautions” when done to
complete the mission safely. Id. at 356. Off-mission detours
that do not address the basis for the stop or legitimate safety
concerns, such as a dog-sniff6 or extensive criminal history
6
See Rodriguez, 575 U.S. at 355 (“A dog sniff . . . is a measure
aimed at ‘detect[ing] evidence of ordinary criminal
wrongdoing.’”) (quoting Indianapolis v. Edmond, 531 U.S. 32,
40–41 (2000)).
7
questioning,7 violate the Fourth Amendment when performed
without reasonable suspicion.
In this case, the parties agree that the criminal history
check does not qualify as a routine task tied to the traffic
infraction, and the Government concedes that Clemons “had
completed the tasks specifically tied to the traffic stop when he
finished the computerized N.C.I.C. driver’s license and
warrant checks.” Gov’t Br. at 24. The Government therefore
argues that the check was objectively reasonable under
Rodriguez because it was part of the stop’s mission due to
officer safety.
Officer safety during a traffic stop has been a
longstanding and recognized concern. See, e.g., Arizona v.
Johnson, 555 U.S. 323, 330 (2009) (recognizing “that traffic
stops are especially fraught with danger to police officers.”)
(internal citation omitted). Rodriguez recognized this concern
and went one step further by concluding that the “officer safety
interest stems from the mission of the stop itself.” 575 U.S. at
356. Our Court has adopted this rationale. See Clark, 902 F.3d
at 410 (“Tasks tied to officer safety are also part of the stop’s
mission when done out of an interest to protect officers.”).
Rodriguez explained that “an officer may need to take
certain negligibly burdensome precautions in order to complete
his mission safely” and implied that conducting criminal
record checks could be done in furtherance of officer safety.
575 U.S. at 356 (citing United States v. Holt, 264 F.3d 1215,
1221–22 (10th Cir. 2001) (en banc), overruled on other
grounds by Muehler v. Mena, 544 U.S. 93 (2005)). The fact
that Hunter and Davis outnumbered Clemons enhances the
7
See, e.g., Clark, 902 F.3d at 410–11 (concluding that criminal
history questioning, performed after criminal history query,
violates the Fourth Amendment).
8
safety concerns we must consider. See Maryland v. Wilson,
519 U.S. 408, 413 (1997) (“[T]he fact that there is more than
one occupant of the vehicle increases the possible sources of
harm to the officer.”). Viewing the circumstances as they
existed at the scene of the stop, we conclude that it was
reasonable for an officer to conduct this check pursuant to
safety concerns.
Post-Rodriguez, the First, Fourth, Seventh, Eighth,
Ninth, and Tenth Circuits have all concluded that a routine
criminal record check during a traffic stop is lawful under the
Fourth Amendment.8 We agree that when “necessary in order
8
See, e.g., United States v. Hylton, 30 F.4th 842, 847 (9th Cir.
2022) (finding that while a felon registration check is a
“measure aimed at detecting evidence of ordinary
wrongdoing,” a criminal history check, which only looks to
whether “someone is a felon at all” is “supported by an ‘officer
safety justification’”) (citation omitted); United States v. Salkil,
10 F.4th 897, 898 (8th Cir. 2021) (recognizing that “officers
may complete ‘routine tasks,’ such as ‘computerized checks of
. . . the driver’s license and criminal history’”) (citation
omitted); United States v. Mayville, 955 F.3d 825, 830 (10th
Cir. 2020) (finding that “an officer’s decision to run a criminal-
history check on an occupant of a vehicle after initiating a
traffic stop is justifiable as a ‘negligibly burdensome
precaution’ consistent with the important governmental
interest in officer safety”) (citation omitted); United States v.
Dion, 859 F.3d 114, 127 n.11 (1st Cir. 2017) (recognizing that
“the Supreme Court has characterized a criminal-record check
as a ‘negligibly burdensome precaution’ that may be necessary
in order to complete the mission of the traffic stop safely”)
(citation omitted); United States v. Palmer, 820 F.3d 640, 650
(4th Cir. 2016) (recognizing “‘certain negligibly burdensome
9
to complete the mission of the traffic stop safely,” a criminal
history check is permissible and within the bounds of the
Fourth Amendment. United States v. Dion, 859 F.3d 114, 127
n.11 (1st Cir. 2017).
We therefore hold that this criminal record check—
which lasted approximately two minutes and was supported by
objectively reasonable safety concerns—was a negligibly
burdensome officer safety precaution that falls squarely within
the confines of the stop’s mission according to Rodriguez.
However, we acknowledge that under other circumstances, a
criminal record check may be unreasonable if it is more than
negligibly burdensome and thus exceeds the stop’s mission.
See Rodriguez, 575 U.S. at 354 (“Authority for the seizure . . .
ends when tasks tied to the traffic infraction are—or reasonably
should have been—completed.”).
As Judge McKee emphasizes in his concurring opinion,
the U.S. Supreme Court has afforded “police officers unbridled
discretion to order drivers out of their cars during traffic stops
in the name of officer safety.” See McKee concurring opinion
§ I.A & n.23 (citing Pennsylvania v. Mimms, 434 U.S. 106, 111
(1977)). Such a concern is understandable and is rightly
accorded consideration as judges weigh whether a traffic stop
comports with the strictures of the Fourth Amendment.
Unbridled discretion exercised by any officer of
government will always be subject to mischief – or worse. It
precautions’ that may not relate directly to the reason for the
traffic stop, such as checking whether the driver has a criminal
record or outstanding warrants”) (citations omitted); United
States v. Sanford, 806 F.3d 954, 956 (7th Cir. 2015) (holding
that a criminal history check is a permissible procedure “even
without reasonable suspicion”).
10
is incumbent upon us as judges to recognize that reality and to
therefore be painstaking in our attention to all the evidence
presented in traffic stop cases and the circumstances out of
which they arise.
III.
The District Court erred as a matter of law by applying a
subjective reasonableness standard when evaluating whether
the criminal record check in this case was part of the stop’s
mission. We will therefore reverse the District Court’s order
granting the motion to suppress and remand for further
proceedings consistent with this opinion.
11
McKEE, Circuit Judge, concurring.
I join my colleagues’ opinion in its entirety. I write
separately, however, to emphasize the narrowness of our
holding, to express concern about the likely consequences of
our decision, and to examine aspects of our traffic stop
jurisprudence, and Rodriguez v. United States,1 that warrant
further discussion.
After hearing the testimony of the arresting officer, the
District Court held that the officer lacked reasonable suspicion
to perform a criminal record check of Hunter and Hunter’s
passenger. We reverse because Supreme Court precedent
indicates that the criminal record check was part of the mission
of the original traffic stop. Therefore, the officer did not need
reasonable suspicion to perform the criminal record check.
I nevertheless agree with the District Court that the
officer lacked reasonable suspicion to further detain Hunter to
conduct that inquiry. Dashcam footage of the stop and the
District Court’s opinion indicate that Hunter is Black. If Hunter
had been White, I am not at all convinced that the officer would
have checked Hunter’s criminal history after confirming
Hunter had a valid driver’s license, registration, and insurance.
As I shall explain, numerous studies support my suspicion.
Although there is no way to address the disparate treatment
Hunter may have been subjected to under our current Fourth
Amendment jurisprudence, it still merits discussion.
I.
Our holding recognizes that police have limited
discretion to extend a traffic stop for “a minute or two”2 to
conduct a criminal record check in the interest of officer safety.
1
575 U.S. 348 (2015).
2
Majority Op. at 4; see also id. at 9.
1
As my colleagues and I stress, this record check lasted no more
than two minutes. Extending this traffic stop for that length of
time is consistent with the Supreme Court’s opinion in
Rodriguez. There, the Supreme Court explained that an officer
may take “negligibly burdensome precautions” to complete a
traffic stop safely3 but did not specify when such precautions
become more than negligibly burdensome and thus
inconsistent with the limitations imposed by the Fourth
Amendment.
It is important to note that studies have shown that
police tend to subject motorists of color to more burdensome
procedures than their White counterparts. Our jurisprudence
has rarely recognized or addressed this unfortunate reality.
A.
Traffic stops are the most common form of involuntary
contact civilians have with police. Indeed, in any given year,
“between 7% and 10% of adults” in the United States “are
3
Rodriguez, 575 U.S. at 356. Prior to Rodriguez, the Supreme
Court described negligibly burdensome precautions as “de
minimis” or “minimal” intrusions. See Pennsylvania v.
Mimms, 434 U.S. 106, 111 (1977); Maryland v. Wilson, 519
U.S. 408, 414–15 (1997). The Supreme Court has explicitly
recognized only two de minimis intrusions: ordering a
vehicle’s driver, see Mimms, 434 U.S. at 111, and a vehicle’s
passengers, see Wilson, 519 U.S. at 415, to get out of the
vehicle during the stop. And, before today, we had recognized
only one additional de minimis intrusion: ordering a vehicle’s
occupants to remain inside the vehicle and to keep their hands
raised throughout the stop. See United States v. Moorefield,
111 F.3d 10, 13 (3d Cir. 1997).
2
stopped by the police [while driving] at least once.”4 Moreover,
police have nearly unlimited discretion to initiate traffic stops.5
One researcher has concluded, “[i]f an officer follows any
motorist long enough, the motorist will eventually violate some
traffic law” and could, therefore, be subjected to a stop “almost
anytime, anywhere, virtually at the whim of police.”6
The burden of these stops falls disproportionately on
drivers of color. Indeed, a significant volume of recent research
shows that “police treat drivers of color differently than white
drivers.”7 Whether intentionally or not, “police are more likely
to subject drivers of color to stops, searches, and other coercive
actions compared to white drivers,” and this disparate
treatment is not explained by differences in behavior or
circumstances.8 Of course, each police department is different,
and I caution against painting with too wide a brush.
Nevertheless, studies have consistently shown that racial
profiling by police is “relatively common.”9
4
Kelsey Shoub, Comparing Systemic and Individual Sources
of Racially Disparate Traffic Stop Outcomes, 32 J. PUB.
ADMIN. RES. & THEORY 236, 241 (2021).
5
See Whren v. United States, 517 U.S. 806, 813, 819 (1996)
(permitting stops based on probable cause of a traffic code
violation, even when the traffic code violation is a pretext for
the stop).
6
Stephen Rushin & Griffin Edwards, An Empirical Assessment
of Pretextual Stops and Racial Profiling, 73 STAN. L. REV.
637, 641 (2021) (internal quotation marks and brackets
omitted).
7
Id. at 657.
8
Id.
9
Id. at 663.
3
For example, one recent study analyzed traffic stop data
from jurisdictions across the country and concluded that a
driver’s race influences police to initiate traffic stops.10 The
study reached this conclusion by comparing stops made before
dusk, when a driver’s race is readily apparent, to stops made
after dusk, when a driver’s race is more difficult to observe.11
Even after controlling for location and for differences in traffic
patterns and police deployment at different times of day, the
study found that drivers of color were more likely to be stopped
before dusk than they were after dusk—that is, drivers of color
were more likely to be stopped when their race was apparent.12
Another study has found that drivers of color are more
likely to be subjected to pretextual stops than White drivers.13
That study relied on data from the State of Washington, which,
for just over a decade, outlawed pretextual traffic stops.14
Researchers compared the racial distribution of traffic stops
when pretextual stops were illegal to the distribution after
pretextual stops were legalized.15 The researchers found that
10
Emma Pierson et al., A large-scale analysis of racial
disparities in police stops across the United States, 4 Nature
Hum. Behav. 736, 737 (July 2020). The study analyzed data
from nearly 100 million traffic stops conducted by 21 state
patrol agencies and 35 municipal police departments. Id.
11
Id.
12
Id. at 737–38.
13
Rushin & Edwards, supra, at 637–38.
14
Compare State v. Ladson, 979 P.2d 833, 839 (Wash. 1999)
(en banc) (concluding that Washington’s constitution “forbids
use of pretext as a justification for a warrantless search or
seizure”) with State v. Arreola, 290 P.3d 983, 991 (Wash.
2012) (en banc) (permitting “mixed-motive traffic stop[s]”).
15
Rushin & Edwards, supra, at 683–85.
4
drivers of color were stopped more frequently after pretextual
stops were legalized, even when controlling for other factors
such as driver age, officer race, officer gender, and location-
specific characteristics.16 That study also found that stops of
drivers of color increased most during daylight hours—again,
when a driver’s race can be readily perceived.17
Another study found that police require less suspicion
to search drivers of color than they require to search White
drivers.18 The study analyzed how frequently searches of
drivers of color versus White drivers yielded contraband and
used statistical modeling to determine the probability of
success an officer would need to perceive before deciding to
initiate a search of either type of driver.19 The study found that
police typically searched drivers of color with less suspicion
than they relied upon to justify searching White drivers.20 For
example, municipal police officers in the study were typically
willing to search Black and Hispanic drivers when they
expected only a 5% or 4.6% likelihood of success,
respectively. By contrast, police in the study typically refrained
from searching White drivers unless there was a 10%
likelihood of success.21
I am not the first to raise concerns about the ways in
which police discretion during traffic stops disparately impacts
racial and ethnic minorities. Justice Stevens raised the same
concern nearly half a century ago in his dissent to the Supreme
Court’s decision in Pennsylvania v. Mimms—the first case to
16
Id. at 686–87.
17
Id. at 692–93.
18
Pierson et al., supra, at 737.
19
Id. at 736.
20
Id.
21
Id.
5
permit police to burden drivers’ Fourth Amendment rights
absent reasonable suspicion.22 There, the Supreme Court
granted police officers unbridled discretion to order drivers out
of their cars during traffic stops in the name of officer safety.23
In his dissent, Justice Stevens forecasted that “[s]ome
citizens [would] be subjected to this minor indignity while
others—perhaps those with more expensive cars, or different
bumper stickers, or different-colored skin—may escape it
entirely.”24 Time and subsequent research have proven Justice
Stevens correct.
B.
Since our traffic stop jurisprudence produces racially
disparate impacts, two aspects of it particularly warrant further
refinement in an appropriate case.
First, in discussing the dangers of traffic stops, our
precedents have not differentiated the risks associated with
different types of stops.25 Instead, we have treated stops as
though they are homogenous. We have relied on data that
group together stops following hot pursuits of suspects who are
known to be dangerous with stops following innocuous,
technical traffic code violations.26 By failing to differentiate
the risks associated with different types of traffic stops, our
jurisprudence often overstates the risks involved in routine
traffic stops in which there is no reasonable suspicion of
22
434 U.S. at 113–14 (Marshall, J., dissenting); id. at 115–16
(Stevens, J., dissenting).
23
Id. at 111 (per curiam).
24
Id. at 122 (Stevens, J., dissenting).
25
Mimms, 434 U.S. at 110; Wilson, 519 U.S. at 413.
26
Jordan B. Woods, Policing, Danger Narratives, and Routine
Traffic Stops, 177 MICH. L. REV. 635, 648–49 (2019)
(discussing the data source relied upon in Mimms and Wilson).
6
danger. We have then relied on this overstated risk to justify
giving police unbridled discretion to pursue practices that
would typically require reasonable suspicion outside the traffic
stop context.
One recent study illustrates the problem. That study
concluded that the risk to officer safety associated with routine
traffic stops is substantially smaller than the risk associated
with other types of police activity.27 And of the assaults on
police that occur during traffic stops, the study found that fewer
than 4% occur during traffic stops in which the officer had no
reason to suspect danger.28 Overall, even under the most
conservative assumptions, the study found that routine traffic
stops result in serious injury to an officer in one in every
325,000 encounters, and in death in one of every 5.42 million
encounters.29 While officer safety is undoubtedly an important
consideration in every encounter, these statistics put the risks
officers face during routine traffic stops into perspective.
Second, the jurisprudence surrounding traffic stops has
focused on the safety of the officer(s) involved. This is perhaps
understandable given the nature of police work. However,
traffic stops involve more than police; they involve ordinary
members of the public as well. Yet, Fourth Amendment
jurisprudence surrounding traffic stops has historically ignored
the safety of a vehicle’s occupants.
It is an unfortunate but undeniable reality that traffic
stops endanger the occupants of vehicles. An investigation
27
Id. at 649–54. In this study, the researcher reviewed more
than 4000 narratives of assaults experienced by police to
determine the specific circumstances in which each assault
occurred. Id. at 661–62, 669.
28
Id. at 689.
29
Id. at 682.
7
conducted by the New York Times found that between 2016
and 2021 police killed “more than 400 drivers or passengers
who were not wielding a gun or a knife, or under pursuit for a
violent crime—a rate of more than one a week.”30 Indeed, even
law enforcement professionals have recognized the danger
civilians face in their interactions with police. As the District
Attorney for Salt Lake County, Utah, put it, some incidents
“get into what I would call anticipatory killings . . . . We can’t
give carte blanche to that.”31
This danger is even more pronounced for racial and
ethnic minorities, who are not only subjected to police
interaction with greater frequency, as discussed above, but are
also more likely to be perceived as dangerous and therefore
more likely to be subjected to force.32 A national study of
police-involved shootings between 2011 and 2014 found that
unarmed Black people were 3.49 times more likely to be killed
30
David D. Kirkpatrick et al., Why Many Police Traffic Stops
Turn Deadly, N.Y. TIMES, (Oct. 31, 2021),
https://www.nytimes.com/2021/10/31/us/police-traffic-stops-
killings.html.
31
Id.
32
Justin D. Levinson et. al., Deadly “Toxins”: A National
Empirical Study of Racial Bias and Future Dangerousness
Determinations, 56 GA. L. REV. 225, 281 (2021) (conducting
implicit association tests of jury-eligible participants and
finding that participants strongly associated pictures of Black
and Latino people with danger and pictures of White people
with safety); see also Cynthia Lee, Race, Policing, and Lethal
Force: Remedying Shooter Bias with Martial Arts Training, 79
LAW & CONTEMP. PROBS. 145, 149–50 (2016).
8
by police than unarmed White people.33 Allowing police too
much latitude during a routine traffic stop only increases the
risk of the encounter morphing into a tragedy.34
33
Cody T. Ross, A Multi-Level Bayesian Analysis of Racial
Bias in Police Shootings at the County-Level in the United
States, 2011-2014, PLOS ONE, Nov. 5, 2015, at 6. This study
analyzed the likelihood that an individual would be Black,
unarmed and shot by police on a county-by-county basis. Id.
Black people were 3.49 times more likely to be killed while
unarmed in the median county. In some counties, however, the
ratio was far worse. Id. In some counties, Black people were
20 times more likely to be shot by police while unarmed. Id. at
1.
34
The New York Times’s report on police killings of unarmed
drivers and passengers captures how traffic stops can
needlessly escalate into tragedies:
“Open the door now, you are going to get shot!” an
officer in Rock Falls, Ill., shouted at Nathaniel Edwards
after a car chase.
“Hands out the window now or you will be shot!” yelled
a patrolman in Bakersfield, Calif., as Marvin Urbina
wrestled with inflated airbags after a pursuit ended in a
crash.
“I am going to shoot you—what part of that don’t you
understand?” threatened an officer in Little Rock, Ark.,
adding a profanity, as she tried to pry James Hartsfield
from his car.
9
II.
We are, of course, bound by Rodriguez. Rodriguez
suggests that a criminal record check is a permissible safety
precaution that comports with the mission of a traffic stop
when conducted in a manner that is negligibly burdensome. I
am therefore constrained to join my colleagues’ opinion.
However, in joining that decision, it is important to note that
neither Rodriguez nor the court of appeals case it relies upon
to sweep record checks into the mission of a traffic stop explain
how a criminal record check improves officer safety, and there
is reason to doubt that it does.
As my colleagues and I have explained, Rodriguez
instructs that a traffic stop may not be extended beyond the
time necessary to complete the stop’s mission.35 A stop’s
mission includes “address[ing] the traffic violation that
warranted the stop” and “attend[ing] to related safety
concerns.”36 These safety concerns include not only concern
for the safety of the roadways but also concern for the safety
of the officer(s) making the stop.37
In discussing how police officers may attend to the
safety of the roadways, Rodriguez specifies that an officer may
The police officers who issued those warnings had
stopped the motorists for common offenses: swerving
across double yellow lines, speeding recklessly,
carrying an open beer bottle. None of the men were
armed. Yet within moments of pulling them over,
officers fatally shot all three.
Kirkpatrick et al., supra.
35
Rodriguez, 575 U.S. at 354.
36
Id.
37
Id. at 355–56.
10
pursue “ordinary inquiries incident to the traffic stop,” such as
checking a driver’s license, insurance, and registration and
checking whether there are outstanding warrants for the
driver’s arrest.38 The Court considered these inquiries to be
consistent with the mission of the traffic stop because “[t]hese
checks serve the same objective as enforcement of the traffic
code: ensuring that vehicles on the road are operated safely and
responsibly.”39
It is clearly important to ensure that drivers can safely
and competently operate their vehicles, and it is therefore
obvious that the information officers may obtain through their
routine traffic stop inquiries serves that objective. For example,
a driver’s license proves a person is qualified to get behind the
wheel. Vehicle registration, which typically requires an annual
inspection, helps ensure that a vehicle is safe. Insurance
documentation ensures that a driver can compensate others for
personal injury or property damage in the event of an accident.
And an outstanding warrants check can help an officer
determine whether a driver may be wanted for previous traffic
offenses40 or may be tempted to use the roadways to flee in a
dangerous manner.
In discussing how police officers may attend to their
own safety, however, Rodriguez provides little detail. As
mentioned above, the Supreme Court stated only that an officer
may pursue “certain negligibly burdensome precautions” and
did so relying upon a Tenth Circuit decision, United States v.
Holt,41 which the Supreme Court parenthetically described as
38
Id. at 355.
39
Id. at 354.
40
Id. at 355 (quoting W. LaFave, Search and Seizure § 9.3(c),
516 (5th 3d. 2012)).
41
264 F.3d 1215 (10th Cir. 2001) (en banc).
11
“recognizing [an] officer safety justification for criminal
record and outstanding warrant checks.”42 After making this
statement, however, the Court went on to distinguish officer
safety and the specific mission of a traffic stop from the general
mission of investigating crimes without explaining the
connection between criminal record checks and officer safety.
It is not at all clear how a criminal record check
advances officer safety. And Holt—the only case cited in
Rodriguez for this point—does not explain the connection.
Rather, Holt simply assumes a connection, stating only, “[b]y
determining whether a detained motorist has a criminal record
or outstanding warrants, an officer will be better apprized of
whether the detained motorist might engage in violent activity
during the stop.”43
But, the relationship between an individual’s criminal
record and likelihood of assaulting a police officer is extremely
tenuous. “Numerous . . . studies have shown that recidivism
occurs relatively quickly,”44 and at least one study has shown
that individuals with prior records are no more likely to
reoffend than members of the general public after those
42
Rodriguez, 575 U.S. at 356. Curiously, the Court cited to
Holt with a “cf.” signal, which means “compare” and is used
when the “[c]ited authority supports a proposition different
from the main proposition but sufficiently analogous to lend
support.” The Bluebook: A Uniform System of Citation, R.1, at
59 (Columbia L. Rev. Ass’n et al. eds., 20th ed. 2015). The
Court’s use of this signal further obfuscates the Court’s
discussion of officer safety precautions.
43
264 F.3d at 1222–23.
44
Alfred Blumstein & Kiminori Nakamura, Redemption in the
Presence of Widespread Criminal Background Checks, 47
CRIMINOLOGY 327, 323, 331 (2009).
12
individuals have remained free from encounters with the
criminal legal system for a period of time.45 Thus, the older the
crime, the less likely it is to have any relevance to an
individual’s propensity towards violence during the traffic
stop. The predictive value of a criminal record also depends on
the nature of the prior crime(s) as well as an individual’s
current age and age when first arrested.46 Thus, the academic
literature on recidivism suggests only a limited subset of past
crimes would have potential relevance to an officer’s safety,
and then only for a limited subset of drivers.
Yet, I seriously doubt that officers have the kind of
training that would allow them to meaningfully assess the
significance of the information obtained through a “routine”
criminal record check, even if the record check provided the
kind of detail that would allow for such an assessment. And
that kind of analysis would, of course, further delay the
detained motorist and passengers.
Moreover, conducting criminal record checks during
traffic stops could very well endanger officers as well as the
occupants of the stopped vehicle rather than making officers
safer. As I have just explained, prior encounters with the
criminal justice system may have little or no bearing on a
driver’s present dangerousness. But, after reviewing a driver’s
criminal record, an officer might assume the driver is
dangerous or otherwise engaged in criminal activity. The
officer would therefore return to the stopped vehicle with
heightened apprehension. That only multiplies the
opportunities for misunderstanding, misinterpretation, and
escalation, thus creating a situation where both the officer and
the vehicle’s occupant(s) are at increased risk. It certainly
45
Id. at 333.
46
Id. at 331, 333, 339.
13
increases the likelihood that the occupants would be ordered
out of the vehicle, and this, in turn, may well increase the
likelihood of confrontation.47
III.
Traffic stops are very fluid and dynamic encounters
between police and ordinary members of the public. They are,
of course, necessary to ensure that vehicles are operated
“safely and responsibly” as the Supreme Court has explained.
Fortunately, the vast majority of them are conducted without
incident or confrontation.
47
Although there is not unanimity of opinion, some researchers
and law enforcement professionals argue that ordering the
occupants out of a vehicle endangers officers rather than
making them safer. See Cal. Comm’n on Peace Officer
Standards and Training, Basic Course Workbook Series
Student Materials Learning Domain 22 Vehicle Pullovers p. 2-
3 (v.3.2, 2018) (“It is generally desirable for patrol officers to
have the driver and occupants of the target vehicle remain in
the vehicle throughout the duration of the pullover.”);
Metropolitan Police Academy, Traffic Stops § 12.3.4 (2023)
(instructing officers in “high-risk” stops to “instruct all
passengers to remain in the vehicle”); Woods, supra, at 708
(discussing recent empirical evidence indicating that ordering
drivers and passengers out of a car increases the officer’s risk
of being assaulted); see also Mimms, 434 U.S. at 119 (Stevens,
J., dissenting) (noting that experts on traffic stops “strongly
recommend that the police officer ‘never allow the violator to
get out of the car’” (citing Vern L. Folley, POLICE PATROL
TECHNIQUES AND TACTICS 95 (1973); August M. Yount,
VEHICLE STOPS MANUAL: MISDEMEANOR AND FELONY 2–3
(1976); George T. Payton, PATROL PROCEDURE 301 (4th ed.
1971))).
14
But as I have explained, studies have shown that the
discretion underlying an officer’s decision to stop a motorist is
often influenced by factors that would raise constitutional
concerns but for the Fourth Amendment latitude courts have
historically allowed in the traffic stop context. As I have also
explained, studies have now validated Justice Stevens’ concern
that the decision to stop a motorist is sometimes influenced by
the color of that motorist’s skin. Although there does not
currently appear to be a remedy for such discrimination, I am
hopeful that our Fourth Amendment jurisprudence will yet
evolve to ensure that all motorists receive the same degree of
protection from an officer’s conscious or unconscious bias.
My colleagues conclude that the District Court erred in
granting Hunter’s suppression motion here. Because that result
is consistent with, and required by, the Supreme Court’s
analysis in Rodriguez, I join my colleagues’ opinion despite the
concerns I have expressed.
15