State v. Allen , 298 Ga. 1 ( 2015 )

In the Supreme Court of Georgia
Decided: November 2, 2015
S14G1765. THE STATE v. ALLEN et al.
NAHMIAS, Justice.
A police officer initiated a traffic stop of the car being driven by appellee
Patrick Scott, in which appellee Dorian Allen was a passenger. About eight
minutes into the stop, the officer radioed for a computer records check on both
Scott and Allen. While awaiting the response based on Allen’s out-of-state
identification card, the officer conducted a free-air dog sniff of the car, and
about 11 ½ minutes into the stop, the dog alerted, giving the officer probable
cause to continue the detention of Scott and Allen and to search the car. The
search led to the discovery of almost 10 pounds of marijuana in the trunk and
the arrest and indictment of Scott and Allen.
They moved to suppress the drug evidence on the ground that the traffic
stop was unreasonably and thus unconstitutionally prolonged by the records
check on the car’s passenger. The trial court granted the suppression motion.
After the Court of Appeals affirmed that ruling in a divided decision, we granted
certiorari, and we now reverse. As explained below, under the precedents of this
Court and the United States Supreme Court establishing how the
constitutionality of a traffic stop should be reviewed, it is clear in this case that
the computer records check on the stopped car’s passenger was part of the
authorized mission of the traffic stop, and it is also clear that the officer
conducted the records check and the stop as a whole with reasonable diligence.
Accordingly, the stop was constitutional, and Scott and Allen’s motion to
suppress should have been denied.
1. (a) When reviewing a trial court’s ruling on a motion to suppress,
“an appellate court must construe the evidentiary record in the light most
favorable to the factual findings and judgment of the trial court.” Hughes v.
State, 296 Ga. 744, 746 (770 SE2d 636) (2015). This means that the reviewing
court generally must accept the trial court’s findings as to disputed facts unless
they are clearly erroneous, although the reviewing court may also consider facts
that “definitively can be ascertained exclusively by reference to evidence that
is uncontradicted and presents no questions of credibility,” such as facts
indisputably discernable from a videotape. Id. at 746 & n.5. Viewed in this
way, the evidence at the suppression hearing, which consisted of the testimony
2
of the arresting officer and the video and audio recording of the traffic stop
made by his police car’s dashboard camera (which also captured some of the
radio transmissions made by the officer), shows the following.
On the evening of September 13, 2012, Henry County Police Officer
Nicholas Jackson was sitting in his police car with his drug dog and another
officer, watching southbound traffic on I-75. Officer Jackson observed a
vehicle make an improper lane change and saw that the car’s driver had his
finger pointed “all in the passenger’s face.” Based on these observations, the
officer surmised that the vehicle’s occupants were arguing. Concerned that the
driver was distracted, Officer Jackson decided to catch up with the car, and as
he did so, he saw the car make additional illegal lane changes and that the driver
was still reaching over and pointing in the passenger’s face. The officer then
initiated a traffic stop of the car, which pulled over onto the shoulder of the
highway, where the police car parked behind it.
Officer Jackson approached the stopped car on the passenger side.1 He
1
The second officer, who was identified by Officer Jackson at the hearing but did not testify,
got out of the police car and stood behind Officer Jackson. It appears that this officer remained near
the front side of the police car, which is not shown by the dashboard camera recording, for much of
the stop. He did not take an active role in the stop, and so we will not mention him further; the trial
court and Court of Appeals did not even mention his presence.
3
told Scott, who was the driver, and Allen, who was in the front passenger’s seat,
why he had pulled them over, but the two men denied arguing. Officer Jackson
asked both men for identification. Scott handed the officer his Georgia driver’s
license and the car’s registration information, and Allen provided his South
Carolina identification card but told the officer that his current address was not
the one on the card. Officer Jackson then told the men that he was going to
issue a warning for the improper lane changes. This all took about 2 ½ minutes.
Officer Jackson had not smelled any marijuana or seen any drugs or drug
paraphernalia in the car, but because of the lane infractions, he wanted to make
sure Scott was not intoxicated, so he asked Scott to exit the car and walk over
to the police car; Scott did not appear impaired. While standing in front of the
police car, Officer Jackson conducted a pat-down search of Scott, finding no
weapons; the officer then began writing the warning citation as he talked with
Scott, explaining the warning and asking where Scott was driving. The officer
next walked back to the car, where Allen was still sitting, to ask for his current
address and where he and Scott were driving. Then the officer went back to the
police car and Scott and resumed writing the citation. This all took about 4 ½
minutes.
4
It took about another minute for Officer Jackson to finish writing the
warning; the traffic stop had lasted about eight minutes at this point. The officer
then radioed Scott’s and Allen’s identification information to the police
dispatcher to run computer records checks through GCIC and NCIC.2 Just
seconds after Officer Jackson finished relaying the information, the dispatcher
reported back that Scott’s Georgia license was “crystal clear,” but she asked the
officer to repeat Allen’s information and the ensuing check on Allen’s out-of-
state identification card took longer. Officer Jackson explained to Scott that he
was waiting on the return of Allen’s information and asked for consent to search
the car. Scott declined. Officer Jackson then asked Allen to step out of the car
and join Scott in front of the police car; the officer also asked Allen if he had
any weapons, and Allen said he did not. The officer never gave the men back
their identification cards or told them they could leave.
About a minute after being denied consent to search, the officer retrieved
his dog and began an free-air sniff around the stopped car. Less than a minute
later, Officer Jackson put the dog away and informed Scott and Allen that the
2
GCIC is the GBI-run Georgia Crime Information Center, and NCIC is the FBI-run National
Crime Information Center.
5
dog had alerted for the presence of drugs, meaning that he had probable cause
to search the vehicle. At this point, Scott and Allen had been stopped for about
11 ½ minutes. About three minutes later, while the officer was conducting the
search of the car, the dispatcher reported back that Allen’s South Carolina
identification card was clear. Officer Jackson continued the search, found a box
with approximately 9.8 pounds of marijuana in the car’s trunk, and arrested
Scott and Allen.
(b) After Scott and Allen were indicted for possession of the
marijuana, they moved to suppress the drug evidence, arguing that it was found
only as a result of their illegal detention. After the suppression hearing, the trial
court granted the motion. The court concluded that Scott and Allen were being
unlawfully detained at the time the drug dog alerted because “[b]y the time this
event occurred, the police investigation of the traffic violation which justified
the stop had been concluded, and a warning citation had been issued,” and
because “[n]o valid law enforcement purpose was served by conducting a
computer check of the passenger’s identification, and it was unlawful to extend
the detention of both Defendants while this was done.”
The State took an immediate appeal. See OCGA §§ 5-7-1 (a) (4), 5-7-2
6
(b) (1). The Court of Appeals affirmed the trial court’s ruling in a 4-3 decision,
with the majority opinion holding that “the officer – having accomplished the
tasks related to his investigation into lane infractions and having no reasonable,
articulable suspicion of criminal activity aside from the traffic violation –
unreasonably prolonged the duration of the traffic stop when he initiated the
computer check.” State v. Allen, 328 Ga. App. 411, 415-416 (762 SE2d 111)
(2014) (footnote omitted). We granted the State’s petition for certiorari.
2. A trial court’s conclusion that a traffic stop was unreasonably
prolonged may often be a fact-intensive determination, but it is ultimately a
holding of constitutional law that we review de novo. See Jones v. State, 291
Ga. 35, 36-37 (727 SE2d 456) (2012) (“To the extent [a suppression] issue
concerns a mixed question of fact and law, we accept the trial court’s findings
on disputed facts and witness credibility unless they are clearly erroneous, but
independently apply the law to the facts.”). We have no quibble with the facts
of this case as found by the trial court or as recounted by the Court of Appeals,
but those courts erred in applying the established law of traffic stops to those
facts.
(a) Scott and Allen do not dispute that their initial seizure by the
7
police – the stop of their vehicle – was lawful based on the lane-change
violations that Officer Jackson observed. As the U.S. Supreme Court has
explained, however,
a seizure that is lawful at its inception can violate the Fourth
Amendment if its manner of execution unreasonably infringes
interests protected by the Constitution. A seizure that is justified
solely by the interest in issuing a warning ticket to the driver can
become unlawful if it is prolonged beyond the time reasonably
required to complete that mission.
Illinois v. Caballes, 543 U.S. 405, 407 (125 SCt 834, 160 LE2d 842) (2005)
(citation omitted). Thus, “the tolerable duration of police inquiries in the
traffic-stop context is determined by the seizure’s ‘mission’ – to address the
traffic violation that warranted the stop, and attend to related safety concerns.”
Rodriguez v. United States, 135 SCt 1609, 1614 (191 LE2d 492) (2015)
(citation omitted).3
A dog sniff of a traffic-stopped vehicle “is not fairly characterized as part
of the officer’s traffic mission,” because it “is a measure aimed at ‘detect[ing]
evidence of ordinary criminal wrongdoing.’” Id. at 1615 (citation omitted).
3
We note that Rodriguez was decided after this case was orally argued in this Court, so the
trial court and Court of Appeals did not have the benefit of the clarity that decision brought to the
legal analysis at issue.
8
Consequently, prolonging a traffic stop in order to conduct an open-air dog sniff
renders the seizure unlawful, even if that process adds very little time to the
stop. See id. at 1616 (rejecting the government’s argument that a dog sniff may
“incrementally” prolong a stop as long as the overall duration of the stop
remains reasonable). The Supreme Court has clearly held, however, that
conducting an open-air dog sniff around a vehicle during a traffic stop does not
itself violate the Fourth Amendment, and – like other investigation unrelated to
the stop – it can be lawfully done so long as it does not lengthen the stop at all.
See id. at 1614-1615 (explaining that the Court has “concluded that the Fourth
Amendment tolerated certain unrelated investigations that did not lengthen the
roadside detention,” including questioning unrelated to the mission of the stop
and an open-air dog sniff). See also Caballes, 543 U.S. at 409 (“[T]he use of a
well-trained narcotics-detection dog – one that ‘does not expose noncontraband
items that would otherwise remain hidden from public view’ – during a lawful
traffic stop, generally does not implicate legitimate privacy interests.” (citation
omitted)); State v. Simmons, 283 Ga. App. 141, 143 (640 SE2d 709) (2006)
(“‘The use of a drug sniffing dog to conduct a free air search around the exterior
of the vehicle during the course of a lawful traffic stop does not implicate the
9
Fourth Amendment . . . .’” (citation omitted)).
The question in this case, then, is whether the free-air dog sniff that
resulted in probable cause to detain Scott and Allen and search inside their car
was done while some other task related to the mission of the traffic stop was still
being conducted, so that the sniff did not add any time to the stop. It is
undisputed that Officer Jackson walked his dog around the car while waiting for
the results of the computer check on Allen’s identification card, and it is equally
undisputed that the officer had finished all other mission-related actions by the
time he retrieved his dog. Thus, the constitutionality of the dog sniff in this case
turns on whether running a computer records check on Allen – a passenger in
the stopped car – was a lawful part of the mission of the traffic stop.4
4
Because Scott and Allen at times have argued that the traffic stop ended at the point Officer
Jackson finished writing the warning citation, it is important to distinguish between the time at which
the mission of the stop is concluded and the time at which the stop itself is concluded. Although
ideally these two times will coincide, that is not always the case. “Normally, the [traffic] stop ends
when the police have no further need to control the scene, and inform the driver and passengers they
are free to leave.” Arizona v. Johnson, 555 U.S. 323, 333 (129 SCt 781, 172 LE2d 694) (2009).
Accord Rodriguez v. State, 295 Ga. 362, 371 n.13 (761 SE2d 19) (2014). Thus, after the officer
returns the occupants’ documents and indicates that they are free to leave, any further detention may
be viewed as a new seizure that would require separate reasonable and articulable suspicion to be
lawful. In this case, however, at the time when Officer Jackson began conducting the open-air sniff
with his dog, he still had control of Scott’s and Allen’s identification cards and he had not told them
they were free to go, so the original stop was ongoing and the question is whether it was
unreasonably prolonged. See Williams v. State, 329 Ga. App. 650, 653 (766 SE2d 82) (2014)
(“[B]ecause the officer had not yet informed Williams that he was free to leave with the rental car
or returned the rental agreement, the traffic stop was ongoing at the time the free-air canine search
10
(b) As the Supreme Court recently explained in Rodriguez, the
mission of a traffic stop involves both “address[ing] the traffic violation that
warranted the stop, and attend[ing] to related safety concerns.” 135 SCt at 1614
(citation omitted). See also id. at 1615 (“Beyond determining whether to issue
a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident to [the
traffic] stop.’” (citation omitted)).5 “Related safety concerns” involve both
roadway and officer safety. The Court explained that ordinary inquiries related
to roadway safety are permitted even though they are not directed to the specific
reason for the traffic stop:
Typically such inquiries involve checking the driver’s license,
determining whether there are outstanding warrants against the
driver, and inspecting the automobile’s registration and proof of
insurance. These checks serve the same objective as enforcement of
the traffic code: ensuring that vehicles on the road are operated
safely and responsibly.
Id. at 1615 (citations omitted). As to officer safety, the Supreme Court similarly
explained:
was performed.”).
5
The dissent asserts that “the mission of the traffic stop itself . . . is the determination of
whether a traffic infraction has been committed,” and that the “authority for the detention ends when
tasks tied to the traffic infraction reasonably should have been completed.” This view of Fourth
Amendment law is squarely contradicted by Rodriguez.
11
Unlike a general interest in criminal enforcement, . . . the
government’s officer safety interest stems from the mission of the
stop itself. Traffic stops are “especially fraught with danger to
police officers,” so an officer may need to take certain negligibly
burdensome precautions in order to complete his mission safely. . . .
Highway and officer safety are interests different in kind from the
Government’s endeavor to detect crime in general or drug trafficking
in particular.
Id. at 1616 (citation omitted).6
6
The compelling importance of officer safety in the context of traffic stops was described
well in a Tenth Circuit case that Rodriguez cites in the quoted passage:
The Supreme Court has found it “too plain for argument” that the government’s
interest in officer safety is “both legitimate and weighty,” given the “inordinate risks
confronting an officer as he approaches a person seated in an automobile.” Other
courts have also recognized that “[l]aw enforcement officials literally risk their lives
each time they approach occupied vehicles during the course of investigative traffic
stops.”
In Maryland v. Wilson the Supreme Court noted that in 1994 alone, 5,762 officers
were assaulted and 11 were killed during traffic pursuits and stops. Thirty percent
of police shootings occurred when a police officer approached a suspect seated in an
automobile, and “‘a significant percentage of murders of police officers occurs when
the officers are making traffic stops.’” The most recent data reveal that in 1999,
6,048 officers were assaulted during traffic pursuits and stops and 8 were killed.
More than 34% of those assaults involved a dangerous weapon such as a gun or
knife. Firearms were used to commit 82 of the 94 killings of law enforcement
officers during traffic pursuits and stops during the 1990s.
The terrifying truth is that officers face a very real risk of being assaulted with a
dangerous weapon each time they stop a vehicle. The officer typically has to leave
his vehicle, thereby exposing himself to potential assault by the motorist. The officer
approaches the vehicle not knowing who the motorist is or what the motorist’s
intentions might be. It is precisely during such an exposed stop that the courts have
been willing to give the officers “wide latitude” to discern the threat the motorist may
pose to officer safety.
An officer in today’s reality has an objective, reasonable basis to fear for his or her
12
The Court cited two of its traffic-stop cases upholding officer safety
measures, one involving the driver and the other the passengers in the stopped
car:
In [Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.E.2d
331 (1977) (per curiam)], we reasoned that the government’s
‘legitimate and weighty’ interest in officer safety outweighs the ‘de
minimis’ additional intrusion of requiring a driver, already lawfully
stopped, to exit the vehicle. 434 U.S., at 110-111, 98 S.Ct. 330. See
also Maryland v. Wilson, 519 U.S. 408, 413-415, 117 S.Ct. 882, 137
L.Ed.2d 41 (1997) (passengers may be required to exit vehicle
stopped for traffic violation).
Rodriguez, 135 SCt at 1615. Thus, a marginally burdensome inquiry that
promotes the officer’s safe completion of the traffic-stop mission, and is not
life every time a motorist is stopped. Every traffic stop, after all, is a confrontation.
The motorist must suspend his or her plans and anticipates receiving a fine and
perhaps even a jail term. That expectation becomes even more real when the
motorist or a passenger knows there are outstanding arrest warrants or current
criminal activity that may be discovered during the course of the stop. Resort to a
loaded weapon is an increasingly plausible option for many such motorists to escape
those consequences, and the officer, when stopping a car on a routine traffic stop,
never knows in advance which motorists have that option by virtue of possession of
a loaded weapon in the car. In balancing the interests in this case, we are guided by
other situations in which federal courts have allowed considerations of officer safety
to outweigh fairly intrusive conduct during a traffic stop. Thus, during a routine
traffic stop, an officer may order the driver and passengers out of the vehicle; order
the passengers to remain in the vehicle; open the door of a vehicle with darkly tinted
windows to check for weapons; order the occupants to raise their hands during the
stop; and use a flashlight to check the dark interior of a car.
United States v. Holt, 264 F3d 1215, 1222-1223 (10th Cir. 2001) (en banc) (citations omitted),
abrogated on other grounds as recognized in United States v. Stewart, 473 F3d1265, 1269 (10th Cir.
2007).
13
done merely to facilitate a detour into some non-mission related task, is a
permissible part of the traffic stop. See id. at 1616 (noting that “[o]n-scene
investigation into other crimes . . . detours from [the stop’s] mission. So too do
safety precautions taken in order to facilitate such detours.” (citation omitted)).
(c) Scott and Allen do not take issue with any of the things that
Officer Jackson did during the traffic stop up to the point that he requested a
computer records check on Allen, the passenger in the stopped car. On the facts
of this case, it is clear that the records check on Allen was not related to
determining whether to issue a traffic ticket to the driver of the car (Scott); nor
is there evidence that the officer believed that Allen had committed a traffic
violation himself; nor was the check needed to ensure roadway safety, since this
was not a situation where the passenger would be driving the car away from the
stop. But it certainly enhances an officer’s safety during a traffic stop to know
if anyone in the stopped car – driver or passenger – may pose a particular threat
due to an outstanding arrest warrant or a criminal record showing violent
offenses. So we will focus on whether conducting a computer records check on
the identification provided by a passenger in a car stopped for a traffic violation
is an officer safety measure that is ordinarily permitted as part of the mission of
14
a traffic stop.
To begin with, neither asking the detained passenger for identification nor
running a computer records check on a person is an act that itself infringes on
Fourth Amendment rights:
The police may ask people who have legitimately been stopped [as
part of a traffic stop] for identification without conducting a Fourth
Amendment search or seizure. See Hiibel v. Sixth Judicial Dist. Ct.
of Nev., Humboldt County, 542 U.S. 177, 185, 124 S.Ct. 2451, 159
L.Ed.2d 292 (2004) (“In the ordinary course a police officer is free
to ask a person for identification without implicating the Fourth
Amendment.”); INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758,
80 L.Ed.2d 247 (1984) (“[I]nterrogation relating to one’s identity
or a request for identification by the police does not, by itself,
constitute a Fourth Amendment seizure.”). . . . People do not have
a reasonable expectation of privacy in their driver’s license or state
ID card (or the identification numbers contained by those
documents) once they hand them over to the police officers who
legitimately asked for them.
United States v. Diaz-Castaneda, 494 F3d 1146, 1152-1153 (9th Cir. 2007). See
also United States v. Fernandez, 600 F3d 56, 62-63 (1st Cir. 2010) (concluding
that the officer conducting a traffic stop did not need independent justification
to ask the passenger for identification).7
7
Because Allen has not alleged that he gave Officer Jackson his identification information
involuntarily, we need not decide whether the officer was permitted to take any action to determine
Allen’s identity beyond asking him to voluntarily provide it. See People v. Harris, 886 NE2d 947,
964 (Ill. 2008) (“[A] request for identification is facially innocuous . . . . An innocent passenger has
15
Asking a passenger for identification and then running a computer records
check on the identity provided also is unlike a dog sniff because it is squarely
related to an officer’s safety while completing the mission of the traffic stop.
In allowing police officers, as a safety measure, to require passengers as well as
drivers to get out of a stopped car, the Supreme Court explained, “[w]hile there
is not the same basis for ordering the passengers out of the car as there is for
ordering the driver out, the additional intrusion on the passenger is minimal.”
Maryland v. Wilson, 519 U.S. at 414-415. Similarly, while checking a
passenger’s identification may not always serve the combined roadway safety
and officer safety objectives of checking the driver’s identification, which is
clearly permissible, see Rodriguez, 135 SCt at 1614-1615, it is a minimal
additional intrusion that serves the weighty interest in officer safety. Indeed,
many people would find providing their identification to a police officer for a
nothing to fear and no reason to feel intimidated or threatened. He might even ask why the police
officer needs the information. If the officer explains that he may let the passenger drive the vehicle,
he may choose the option or decline. If he declines, the officer may not insist that he comply.”). See
also INS v. Delgado, 466 U.S. 210, 216-217 (104 SCt 1758, 80 LE2d 247) (1984) (“[P]olice
questioning, by itself, is unlikely to result in a Fourth Amendment violation. . . . Unless the
circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would
have believed he was not free to leave if he had not responded, one cannot say that the questioning
resulted in a detention under the Fourth Amendment. But if the person[] refuses to answer and the
police take additional steps . . . to obtain an answer, then the Fourth Amendment imposes some
minimal level of objective justification to validate the detention or seizure.”).
16
computer records check far less intrusive than being ordered out of the car to
stand on the shoulder of a busy highway or on the side of a street in their
neighborhood. See United States v. Soriano-Jarquin, 492 F3d 495, 500 (4th
Cir.2007) (“If an officer may ‘as a matter of course’ and in the interest of
personal safety order a passenger physically to exit the vehicle, he may surely
take the minimally intrusive step of requesting passenger identification.” (citation
omitted)).
Although the U.S. Supreme Court has not directly addressed whether
checking a passenger’s identification is permissible as an ordinary incident of
a traffic stop, the Court in Rodriguez treated a passenger identification check as
an entirely unexceptional part of the traffic stop at issue. The Court set forth the
relevant facts of the traffic stop in that case as follows:
[Officer] Struble approached the Mountaineer [he had stopped] on
the passenger’s side. After Rodriguez [the driver] identified himself,
Struble asked him why he had driven onto the shoulder. Rodriguez
replied that he had swerved to avoid a pothole. Struble then
gathered Rodriguez’s license, registration, and proof of insurance,
and asked Rodriguez to accompany him to the patrol car. Rodriguez
asked if he was required to do so, and Struble answered that he was
not. Rodriguez decided to wait in his own vehicle.
After running a records check on Rodriguez, Struble returned to the
Mountaineer. Struble asked passenger Pollman for his driver’s
17
license and began to question him about where the two men were
coming from and where they were going. Pollman replied that they
had traveled to Omaha, Nebraska, to look at a Ford Mustang that
was for sale and that they were returning to Norfolk, Nebraska.
Struble returned again to his patrol car, where he completed a
records check on Pollman, and called for a second officer. Struble
then began writing a warning ticket for Rodriguez for driving on the
shoulder of the road.
Struble returned to Rodriguez’s vehicle a third time to issue the
written warning. By 12:27 or 12:28 a.m. [which was 21 to 22
minutes after the stop began], Struble had finished explaining the
warning to Rodriguez, and had given back to Rodriguez and
Pollman the documents obtained from them.
Rodriguez, 135 SCt at 1613 (emphasis added).
In its subsequent legal analysis, the Court expressed no misgivings
whatsoever about this portion of the stop, including the time it took to complete
the records check on the passenger; the Court’s concern was the seven or eight
minutes added to the stop by the open-air dog sniff of the vehicle, because “the
Government’s endeavor to detect crime in general or drug trafficking in
particular” is not a component of the mission of a traffic stop – unlike “[h]ighway
and officer safety.” Id. at 1616. See also id. at 1624 (Alito, J., dissenting)
(noting that Officer Struble’s calling in the information needed to do a records
check on the passenger was “a step that the Court recognizes was properly part
18
of the traffic stop”). Because Officer Strubble was clearly diverting from other
mission-related activities at the time he conducted the records check on the
passenger, if conducting such a check were not related to the mission of a traffic
stop, doing so would have rendered the stop illegal, as it clearly prolonged the
stop by some amount of time. As discussed before, activities unrelated to the
mission of the stop must not extend the time of the stop at all, and such a
prolongation of the stop is not permissible even if those activities are done in the
middle of the stop. See Rodriguez, 135 SCt at 1616. See also People v. Pulling,
34 NE3d 1198, 1201 (Ill. App. 2015) (holding that an officer unconstitutionally
prolonged a stop when he “interrupted his traffic citation preparation to conduct
a free-air sniff based on an unparticularized suspicion of criminal activity”).
This Court has spoken to the point more directly, holding squarely that
identification checks of both drivers and passengers are generally permitted as
an officer safety measure during a traffic stop. In our own recent Rodriguez case
– Rodriguez v. State, 295 Ga. 361 (761 SE2d 19) (2014) – we explained:
Equally important, inquiring about the identities of [driver]
Rodriguez and [passenger] Williams, inquiring about weapons in
the car, verifying their identities, and checking for warrants are
activities reasonably directed toward officer safety. Generally
speaking, when an officer lawfully stops and detains an individual
19
for a brief investigation, . . . the officer is entitled to take reasonable
steps to make the scene safe for his investigation. As the United
States Supreme Court has acknowledged, investigative traffic stops
“are especially fraught with danger to police officers.” Accordingly,
the officer may take reasonable steps to ascertain whether the
persons with whom he is dealing might be dangerous. To this end,
courts throughout the country have held that an officer generally
may reasonably inquire about the identities of persons detained at
the scene of a traffic stop and take reasonable steps to quickly verify
their identities and to check their criminal histories and for
warrants.
Id. at 372-373 (emphasis added; citations omitted).
This holding was not a new development in Georgia appellate law. Our
Court of Appeals had said much the same thing in the two cases we cited in
Rodriguez and in other cases. See State v. McMichael, 276 Ga. App. 735, 741
(624 SE2d 212) (2005) (“‘It is . . . reasonable for the officer to request
identification from a passenger, and to run a computer check on the driver and
the passenger for outstanding warrants. The risks inherent in traffic stops create
a strong interest in officer safety that justifies reasonable safety measures that
minimally intrude upon the Fourth Amendment privacy expectations of
motorists.’” (citations omitted)); State v. Williams, 264 Ga. App. 199, 202-203
(590 SE2d 151) (2003) (“Checking for outstanding warrants or criminal histories
on the occupants of a vehicle at a valid traffic stop is justified by concern for
20
officer safety during the stop.”). See also Matthews v. State, 294 Ga. App. 836,
838 (670 SE2d 520) (2008) (“‘A reasonable time [for a traffic stop] includes the
time necessary to verify the driver’s license, insurance, [and] registration, and to
complete any paperwork connected with the citation or written warning. A
reasonable time also includes the time necessary to run a computer check to
determine whether there are any outstanding arrest warrants for the driver or the
passengers.’” (emphasis in original; citation omitted)).
And Georgia courts are far from alone in this view of traffic-stop law. See,
e.g., Soriano-Jarquin, 492 F3d at 500 (“Assuming a lawful stop, an officer is
entitled to some chance to gain his bearings and to acquire a fair understanding
of the surrounding scene. Just as the officer may ask for the identification of the
driver of a lawfully stopped vehicle, so he may request identification of the
passengers also lawfully stopped.” (citation omitted)); United States v. Rice, 483
F3d 1079, 1084 (10th Cir. 2007) (“While a traffic stop is ongoing . . . an officer
has wide discretion to take reasonable precautions to protect his safety. Obvious
precautions include running a background check on the driver and removing the
occupants from the vehicle. Furthermore, because passengers present a risk to
officer safety equal to the risk presented by the driver, an officer may ask for
21
identification from passengers and run background checks on them as well.”);
United States v. Purcell, 236 F3d 1274, 1278 (11th Cir. 2001) (holding, in the
context where both the driver’s and two passengers’ identifications were called
in for a check, that “[t]he officer may also prolong the detention to investigate the
driver’s license and the vehicle registration, and may do so by requesting a
computer check”).
(d) Under these precedents, Officer Jackson’s computer records
check on Allen was an ordinary officer safety measure incident to the mission of
the traffic stop, and it therefore could permissibly extend the stop for a
reasonable amount of time. Accordingly, the trial court erred as a matter of law
in concluding that “[n]o valid law enforcement purpose was served by
conducting a computer check of the passenger’s identification, and it was
unlawful to extend the detention of both [the driver and passenger] while this was
done.”8
8
The trial court also incorrectly concluded that “[t]he passenger was not subject to detention
at any time because the driver committed a traffic offense.” That holding was clearly inconsistent
with authoritative U.S. Supreme Court decisions. See Arizona v. Johnson, 555 U.S. at 333 (“The
temporary seizure of driver and passengers [that begins when a vehicle is pulled over for
investigation of a traffic violation] ordinarily continues, and remains reasonable, for the duration of
the stop.” (emphasis added; citation omitted)). See also Brendlin v. California, 551 U.S. 249, 258
(127 SCt 2400, 168 LE2d 132) (2007) (explaining that a traffic stop effects a seizure of the vehicle’s
passengers because they would expect that the officer “will not let people move around in ways that
22
The Court of Appeals majority opinion got closer to the correct
constitutional analysis by acknowledging that, “[a]s a general rule, an
investigatory stop is not unreasonably prolonged by the time necessary to run a
computer check,” and that an officer may run checks on “‘the occupants of a
vehicle at a valid traffic stop’ based on concerns for officer safety.” Allen, 328
Ga. App. at 414-415 (citation omitted). But rather than recognizing that such
checks are a permissible part of the traffic stop’s mission, the majority
erroneously held that such checks unreasonably prolong the stop if they are done
“‘[o]nce the tasks related to the investigation of the traffic violation and
processing of the traffic citation have been accomplished.’” Id. at 415 (citing
Weems v. State, 318 Ga. App. 749, 752 (734 SE2d 749) (2012)).
The sequence of the officer’s actions during a traffic stop is not
determinative; instead, the primary question is whether the activity at issue was
related to the mission of the stop. If it is not, like a dog sniff, it can be done only
concurrently with a mission-related activity, or it will unlawfully add time to the
stop. If, on the other hand, the task is a component of the traffic-stop mission,
it may be done at any point during the stop. It does not matter if a mission-
could jeopardize his safety”).
23
related activity takes place as soon as the stop begins or, as is the case here, after
other mission-related activities have been completed. In Rodriguez, the Supreme
Court rejected the proposition that the constitutional analysis depends on the
order in which the officers complete their actions. See 135 SCt at 1616 (“The
critical question, then, is not whether the dog sniff occurs before or after the
officer issues a ticket, . . . , but whether conducting the sniff ‘prolongs’ – i.e.,
adds time to – ‘the stop.’”). See also United States v. Brigham, 382 F3d 500, 511
(5th Cir. 2004) (“Computerized license and registration checks are an efficient
means to investigate the status of a driver and his auto, but they need not be
pursued to the exclusion of, or in particular sequence with, other efficient
means.”).9
The Court of Appeals majority made a second misstep in noting the
absence of testimony from Officer Jackson that “officer safety played any role
9
We do note the possibility that, given other facts, an officer’s completion of all other
mission-related actions (including, for example, checking and returning the driver’s identification)
before deciding to check the passenger’s identification might be evidence of a lack of diligence in
completing the mission of the traffic stop. See United States v. Boyce, 351 F3d 1102, 1105, 1107
(11th Cir. 2003) (concluding that the criminal records check was not part of the original traffic stop
investigation because the officer waited at least six minutes after completing the warning and
handing the driver back his license and rental agreement before running the check). In this case,
however, the record does not support a finding that Officer Jackson was not diligent, and the trial
court did not make such a finding.
24
in the computer check.” Allen, 328 Ga. at 418. The circumstances in which
officer safety measures like records checks may be employed are not limited to
situations where the officer involved later articulates a subjective fear for his
safety. “It makes no sense to say that [the officer’s] belief that he possessed such
[an officer safety] justification, if incorrect, would make an otherwise permissible
inquiry unlawful. Indeed, the Supreme Court has repeatedly held that
‘[s]ubjective intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.’” Fernandez, 600 F3d at 62 (quoting Whren v. United
States, 517 U.S. 806, 813 (116 SCt 1769, 135 LE2d 89) (1996)). “An officer in
today’s reality has an objective, reasonable basis to fear for his or her life every
time a motorist is stopped.” Holt, 264 F3d at 1223. See also footnote 5 above.
And a reasonable and ordinary officer safety measure does not cease to be one
merely because an officer, when testifying about a traffic stop, does not explicitly
label it as such, just as an officer need not testify in each traffic-stop case that he
asked for the driver’s license or for proof of the vehicle’s insurance or
registration as a “roadway safety” measure.10
10
An officer’s explanation may help a court understand why a particular extra-ordinary
action taken to protect officer safety during a traffic stop should be deemed objectively reasonable.
We note that the dissent on one page asserts that “[n]o subjective or objective evidence concerning
25
In sum, because the dog sniff was conducted while Officer Jackson was
waiting for the return of the computer records check on Allen’s identification,
which was an ordinary officer safety measure related to the mission of the traffic
stop, the dog sniff did not prolong the stop at all.
(e) That conclusion does not end the analysis, however, because
the overall duration of the traffic stop must always be reasonable in light of all
of the circumstances. “Authority for the seizure thus ends when tasks tied to the
traffic infraction are – or reasonably should have been – completed.” Rodriguez,
135 SCt at 1614 (emphasis added). See also Rodriguez, 295 Ga. at 369 (“The
duration of an investigative detention, of course, must be reasonable.”). In
determining the reasonable duration of a stop, “it [is] appropriate to examine
whether the police diligently pursued [the] investigation.” United States v.
Sharpe, 470 U.S. 675, 686 (105 SCt 1568, 84 LE2d 605) (1985). Whether the
officer acted with reasonable diligence is gauged “by noting what the officer
actually did and how he did it.” Rodriguez, 135 SCt at 1616.
officer safety was presented at the motion to suppress hearing,” but on the next page accepts that
Officer Jackson’s pat down of Scott and questioning Allen about weapons were steps taken “to
resolve any immediate officer safety concerns”(which they obviously were, even though the officer
did not testify explicitly that he took those steps “for officer safety reasons”). Under the precedents
discussed above, which the dissent simply ignores, Officer Jackson’s running a records check on
Allen was equally appropriate as an officer safety measure.
26
Thus, while it is generally appropriate for an officer to conduct a records
check on passengers as a component of the traffic stop’s mission, conducting that
task, like conducting all other mission-related tasks, must not “lengthen [the]
traffic stop beyond what is reasonable.” Purcell, 236 F3d at 1279. For example,
a records check that added an hour to a traffic stop because the computer system
had crashed would likely be deemed unreasonable. See Fernandez, 600 F3d at
61 (explaining that extending a detention by about 20 minutes solely to run a
check of the passenger’s license would violate his Fourth Amendment rights).
In this case, the records check on Allen’s South Carolina identification card had
been underway for only about three and a half minutes before the drug dog
alerted on the car, providing reasonable suspicion for the ongoing seizure of Scott
and Allen (and the result of the check was reported within six or seven minutes).
That is not an unreasonable time to obtain a records check on a passenger’s out-
of-state identification document. See Purcell, 236 F3d at 1279 (holding that a
three-minute criminal records check did not unreasonably lengthen the traffic
stop).
Furthermore, the record shows that Officer Jackson completed all of the
mission-related steps of the traffic stop in a reasonably diligent manner. The
27
entire initial seizure – from the vehicle stopping to the dog alerting – took about
11 ½ minutes. Whether the duration of a traffic stop was reasonable is often a
highly fact-specific inquiry, but ultimately it is a question of law, and similar
stops of this length (and much longer) have routinely been deemed lawful. See,
e.g., Rodriguez, 135 SCt at 1613, 1615-1616 (expressing no concern about the
21- or 22-minute stop that preceded the dog sniff at issue); id. at 1618 (Thomas,
J., dissenting) (stating that a stop of 29 minutes “is hardly out of the ordinary for
a traffic stop by a single officer of a vehicle containing multiple occupants” and
citing cases upholding traffic stops of about 22 and 30 minutes); Rodriguez, 295
Ga. at 373 (citing with approval Purcell, 236 F3d at 1279, which held that a 14-
minute traffic stop was not unreasonably long); Williams, 264 Ga. App. at 202-
204 (2003) (holding that a 26-minute stop, including a 17-minute delay to run
warrant checks on the driver and passenger, was reasonable); Williams v. State,
233 Ga. App. 70, 71-72 (503 SE2d 234) (1998) (holding that a 35-minute stop
was reasonable when the license check on the driver took longer than usual
because of his common name).
(f) For these reasons, the trial court and the Court of Appeals
majority erred in concluding that the traffic stop at issue violated Allen’s and
28
Scott’s Fourth Amendment rights and in ruling that the resulting drug evidence
must be suppressed.11
Judgment reversed. All the Justices concur, except Benham,
Hunstein, and Melton, JJ., who dissent.
11
In ruling that the suppression motion should be granted, the trial court and the Court of
Appeals relied heavily on Weems v. State, 318 Ga. App. 749 (734 SE2d 749) (2012), and it is true
that the facts in Weems were somewhat similar to the facts in this case. For the reasons discussed
in this opinion, we overrule Weems to the extent it held that a free-air dog sniff conducted during
a traffic stop while the officer was waiting on the return of computer records checks on driver’s
licenses provided by the driver and passenger violated the Fourth Amendment.
29
S14G1765. THE STATE v. ALLEN et al.
BENHAM, J., dissenting.
I write because I respectfully disagree with the majority opinion. In this
case, it is clear that the officer had effectively completed his traffic investigation
prior to deploying his drug dog and, as such, his search of the vehicle was
unlawful.
A seizure justified only by a police-observed traffic violation “become[s]
unlawful if it is prolonged beyond the time reasonably required to complete
th[e] mission” of issuing a ticket for the violation. Rodriguez v. United States,
__ U.S. __ (II) (135 SCt 1609, 191 LE2d 492) (2015). The United States
Supreme Court has noted that the incidental inquiries accompanying a traffic
stop include checking the driver’s license, any outstanding warrants against the
driver, the vehicle’s registration, and the insurance on the vehicle. See id. See
also Delaware v. Prouse, 440 U.S. 648, 658–660 (99 SCt 1391, 59 LE2d 660)
(1979); 4 W. LaFave, Search and Seizure § 9.3(c), pp. 507–517 (5th ed. 2012).
It is undisputed that within ten minutes of the stop, the officer confirmed that
Scott, who was the driver, was not intoxicated, decided to issue a written
warning ticket to Scott, finished writing the warning ticket, and received
confirmation that Scott had a valid license to operate the vehicle and was not
subject to any warrants. While Allen’s warrant status was unknown at this
point, Allen was a passenger and never purported to have a driver’s license and
was not operating the vehicle when the violation occurred, and so his status was
not critical to the mission of road safety. In fact, the majority opinion concedes
that the United States Supreme Court has never affirmatively held that a
passenger’s status is a required inquiry in any traffic investigation or that such
inquiry may prolong the stop after the mission of the traffic stop has been
resolved. The case law, rather, suggests that inquiries of passengers are
permissible depending on the circumstances surrounding the stop. See, e.g.,
Arizona v. Johnson, 555 U.S. 323, 333 (II) (B) (129 SCt 781) (2009) (pat down
of back seat passenger not unlawful where officer had reason to believe
passenger was affiliated with a gang). Indeed, the Supreme Court has stated that
“the Fourth Amendment tolerate[s] certain unrelated investigations” only if they
do not “lengthen the roadside detention.” Rodriguez, supra, __ U.S. at ___ (II).
Here, the majority concedes that “the records check on Allen was not
related to determining whether to issue a traffic ticket to the driver of the car
2
(Scott); nor is there evidence the officer believed that Allen had committed a
traffic violation himself; nor was the check needed to ensure roadway safety,
since this was not a situation where the passenger would be driving away from
the stop.” Despite this concession, the majority opinion justifies the officer’s
actions in prolonging the stop as to Allen’s identification card, and the
deployment of the drug dog while waiting for Allen’s information to be returned
by the dispatcher, by focusing on case law which highlights the need to support
officer safety when conducting traffic investigations.
There is no doubt that officers have difficult jobs and that conducting
traffic stops can be dangerous. Officer safety, however, is not a panacea for
Fourth Amendment violations. And in this case in particular, the focus on
officer safety is irrelevant due to the absence of any evidence that officer safety
was ever a concern during this incident. No subjective or objective evidence
concerning officer safety was presented at the motion to suppress hearing. The
videotape of the encounter shows that the officer conducted a pat down of Scott
when he exited the vehicle and determined that Scott was unarmed. This was
about four minutes into the stop. On the videotape, you can hear Allen say he
has no weapons when the officer asks him to exit the vehicle about ten minutes
3
into the stop.1 The video shows that both men, having exited the vehicle, stood
by the police car, unrestrained and without incident as the officer then deployed
his drug dog and searched the vehicle.
Thus, the officer had taken steps to resolve the traffic investigation and
any immediate officer safety concerns the two men might pose prior to
deploying his drug dog. Any information that could have been revealed from
the check of Allen’s out-of-state identification card, which was not a driver’s
license, was unrelated to any legitimate concern the officer had about road
safety, resolving the traffic infraction, or his own immediate safety. Rather, the
officer used the inquiry into Allen’s information as an excuse to extend the
detention beyond the reasonable time it took the officer to investigate the traffic
stop and impermissibly detoured his mission into an investigation of criminal
activity for which he had no reasonable suspicion or probable cause.2 So-called
“safety precautions,”such as irrelevant passenger checks, cannot be used to
facilitate a detour from the traffic mission into an unlawful investigation as the
1
It cannot be seen on the videotape whether the officer conducted a pat down of Allen for weapons when he exited
the vehicle.
2
Seemingly, the officer was determined to conduct a drug investigation because he only deployed his drug dog when
Scott failed to consent to a search of the vehicle ten minutes into the stop. Up until that point, Scott was standing unrestrained
by the police car, Allen was sitting in the stopped vehicle, and the officer had no objective evidence of any criminal activity.
4
stop may “last no longer than is necessary to effectuate [resolution of the traffic
infraction]. (Citation omitted.) Rodriguez v. United States, supra, __ U.S. at __
(II). See also United States v. Hight, __ FSupp.3d __, 2015 WL 4239003 (D.
Colo. June 29, 2015) (Regardless of officer-safety motivations, traffic stop was
unlawful when the stop was measurably extended by officer’s decision to wait
for additional officers whose presence was designed to facilitate an investigation
of defendant for possible drug crime, not to facilitate handling the traffic
infraction for which the defendant was stopped); United States v. Evans, 786
F3d 779, 787 (9th Cir. 2015) (Officer safety was not advanced by ex-felon
registration check, which took eight minutes, during traffic stop; prolonging
stop to conduct ex-felon check and dog sniff was unrelated to traffic mission
and violated Fourth Amendment).
Furthermore, the United States Supreme Court has held that a drug
sniffing dog has no purpose in an investigation concerning traffic violations.
Rodriguez v. United States, supra, __ U.S. at __ (II) (“Lacking the same close
connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly
characterized as part of the officer’s traffic mission.”). See also State v. Miller,
267 Or. App. 382, 392 (340 P3d 740) (2014) (reasonable suspicion that
5
defendant was driving under the influence did not support deployment of drug
dog which detects the presence of drugs, not whether a person is intoxicated).
Likewise, the detection of criminal drug trafficking is unrelated to officer safety.
Rodriguez v. United States, supra, __ U.S. at __ (II) (“Highway and officer
safety are interests different in kind from the Government's endeavor to detect
crime in general or drug trafficking in particular.”) Prolonging the time it
reasonably takes to complete a traffic stop in order to conduct an open air sniff
by a drug dog is unlawful without exception. Rodriguez v. United States, supra.
See also Florida v. Royer, 460 U.S. 491, 498 (103 SCt 1319, 75 LE2d 229)
(1982) (it is unlawful for police to detain a person “even momentarily without
reasonable, objective grounds for doing so”); Richardson v. State, __ SW3d
___, 2015 WL 4381333 (Tex. App. July 9, 2015) (officer was not permitted to
detain the defendant beyond completion of traffic stop to conduct a drug
investigation. Traffic stop was complete when officer said he would not be
issuing traffic citation); People v. Pulling, 34 NE3d 1198 (Ill. App. 2015)
(motion to suppress upheld where officer stopped writing traffic citation in order
to conduct free air dog sniff). Compare Illinois v. Caballes, 543 U.S. 405, 407
(125 SCt 834, 160 LE2d 842) (2005) (dog sniff took place simultaneously as the
6
warning was being written and was therefore completed at the same time as the
traffic investigation, all within ten minutes).
In sum, the concern over an officer safety check flows from the mission
of the traffic stop itself, and the mission is the determination of whether a traffic
infraction has been committed. Therefore, the detention must last no longer than
necessary to make the determination of whether a traffic violation has occurred,
and authority for the detention ends when tasks tied to the traffic infraction
reasonably should have been completed. Once the determination of whether a
traffic infraction occurred has been completed, the mission is over, the detainees
should be immediately released, and the need for safety checks expires
concurrently. Checking for safety after the traffic mission has been completed
(i.e., by inquiring about the passenger’s identity) does nothing to further the goal
of ensuring safety during the mission; instead, it unreasonably prolongs the stop.
An officer, in other words, may conduct certain unrelated checks
during an otherwise lawful traffic stop. But... he may not do so in
a way that prolongs the stop, absent the reasonable suspicion
ordinarily demanded to justify detaining an individual.
Beyond determining whether to issue a traffic ticket, an officer's
mission includes “ordinary inquiries incident to [the traffic] stop.”
[Caballes, supra, 543 U.S. at 408.] Typically such inquiries involve
checking the driver's license, determining whether there are
7
outstanding warrants against the driver, and inspecting the
automobile's registration and proof of insurance.
(Emphasis supplied.) Rodriguez v. United States, supra, __ U.S. at __ (II).
Nothing in Rodriguez supports prolonging a traffic stop to inquire into
irrelevant passenger information.3
Because I believe the officer unlawfully extended the traffic stop in this
case, I would uphold the decision of the Court of Appeals affirming the trial
court’s granting the motions to suppress. Accordingly, I respectfully dissent to
the majority opinion. I am authorized to state that Justice Hunstein and Justice
Melton join in this dissent.
3
In fact, the Supreme Court has noted that a passenger has a stronger liberty interest than the driver when it comes
to a traffic stop investigation. See Maryland v. Wilson, 519 U.S. 408, 413-414 (117 SCt 882, 137 LE2d 41) (1997).
8