State Ex Rel. Geary Cnty. Sheriff's Dep't v. One 2008 Toyota Tundra

No. 117,571
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS, ex rel.,
GEARY COUNTY SHERIFF'S DEPARTMENT,
Appellant,
v.
ONE 2008 TOYOTA TUNDRA, VIN: 5TBBV54158S517709;
$84,820.00 IN U.S. CURRENCY, MORE OR LESS;
and
APPROXIMATELY 11.9 GRAMS OF MARIJUANA,
Defendants,
and
RYAN P. BOYLE,
Appellee.
SYLLABUS BY THE COURT
1.
Although forfeiture actions are civil in nature, the protections against unreasonable
searches and seizures guaranteed by the Fourth Amendment to the United States
Constitution and § 15 of the Kansas Constitution Bill of Rights are applicable. Therefore,
the constitutional exclusionary rule applies to forfeiture proceedings.
2.
The Fourth Amendment to the United States Constitution protects the "right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures." U.S. Const. amend IV. Section 15 of the Kansas Constitution Bill
of Rights provides the same protection from unlawful government searches and seizures
as the Fourth Amendment.
1
3.
A traffic stop is a seizure under the Fourth Amendment to the United States
Constitution. For the traffic stop to be constitutionally reasonable, the officer must know
of specific and articulable facts that create a reasonable suspicion the seized individual is
committing, has committed, or is about to commit a crime or traffic infraction.
4.
A traffic stop seizure that is justified at its inception can become illegal if the
officer unreasonably prolongs the duration of the stop beyond its mission. While law
enforcement does not extend the duration of a stop by asking questions related to its
purpose, questions unrelated to the purpose of the stop are permitted so long as an
officer's inquiries into matters unrelated to the justification for the traffic stop do not
measurably extend the duration of the stop.
5.
A routine traffic stop is a relatively brief encounter, and 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.
Because addressing the infraction is the purpose of the stop, it may last no longer than is
necessary to effectuate that purpose. Authority for the seizure thus ends when tasks tied
to the traffic infraction are—or reasonably should have been—completed.
6.
On-scene investigation into other crimes detours from the mission of the traffic
stop. So too do safety precautions taken in order to facilitate such detours. While an
officer may conduct certain investigations unrelated to the traffic violation, the officer
may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily
demanded to justify detaining an individual.
2
7.
The time permitted to complete the mission or investigation of a traffic violation
includes precautions taken to promote officer safety and ordinary inquiries incident to the
traffic stop. Ordinary inquiries incident to a traffic stop expressly and typically include
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.
8.
Because traffic stops are especially fraught with danger to police officers, the time
needed to complete the mission of investigating the traffic infraction may require an
officer to take certain negligibly burdensome precautions in order to complete his or her
mission safely. Given this danger, detaining a motorist for a short period so that law
enforcement may check for any outstanding warrants or criminal history, even though the
purpose of the stop had nothing to do with such prior criminal history, may be justified
for officer safety.
9.
Under the facts of this case, the officer's request of dispatch to conduct a criminal
history check of the driver unreasonably prolonged the stop as the tasks associated with
the stop had been completed at the time of the request. Moreover, any safety concerns
associated with the stop no longer existed at the time the officer's request was made.
Appeal from Geary District Court; BENJAMIN J. SEXTON, judge. Opinion filed February 23, 2018.
Affirmed.
Colin Wood, special prosecutor, for appellant.
Jeremiah L. Platt, of Clark & Platt, Chtd., of Manhattan, for appellee.
3
Before POWELL, P.J., STANDRIDGE, J., and STUTZMAN, S.J.
POWELL, J.: A sergeant in the Geary County Sheriff's Department stopped a 2008
Toyota Tundra driven by Jordan Stephens, with Ryan Boyle as a passenger, on Interstate
70 because the license plate on the vehicle was partially obstructed. During the stop, the
sergeant's K-9 conducted a dog sniff of the pickup truck and alerted to the presence of
drugs. Ultimately, the truck, a large amount of currency, and nearly 12 grams of
marijuana were seized. The State of Kansas brought a civil forfeiture action against the
seized property, but the district court granted Boyle's motion to suppress this evidence
after finding that the sergeant unreasonably prolonged the stop beyond its original
purpose by requesting a criminal history check on Stephens, thus giving the sergeant's K-
9 time to perform the dog sniff. The State now appeals the district court's granting of the
suppression motion. Because we agree with the district court, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2016, the State of Kansas on behalf of the Geary County Sheriff's
Department commenced a civil asset forfeiture action for property allegedly seized in
violation of the Uniform Controlled Substances Act pursuant to K.S.A. 60-4101 et seq.
The property subject to forfeiture includes a 2008 Toyota Tundra pickup truck, $84,820
in U.S. currency, and approximately 11.9 grams of marijuana. The petition for forfeiture
filed in June 2016 gave notice to two parties whom the State asserted may have an
ownership interest in the property: Jordan Stephens and Ryan Boyle.
Three weeks later, Boyle filed an answer to the State's forfeiture petition claiming
an ownership interest in the seized truck and the $84,820. In relevant part, Boyle claimed
the property was exempt and not subject to forfeiture because it was unconstitutionally
seized in violation of his rights under the Fourth Amendment to the United States
Constitution. Subsequently, Boyle filed a motion to suppress, arguing that Geary County
4
Sheriff's Sergeant Christopher Ricard impermissibly extended the duration of the traffic
stop for an obstructed license plate by ordering a criminal history check on Stephens,
after Ricard's in-car computer check confirmed that Stephens had a valid driver's license,
that he was not wanted and had no warrants against him, and that the truck was properly
insured and registered. The State argued that Ricard did not impermissibly extend the
traffic stop because he requested the criminal history check on Stephens while he was
still conducting his investigation of the traffic infraction.
At the hearing on Boyle's motion to suppress, Ricard testified that on March 7,
2016, he was working as a K-9 patrol officer for the Geary County Sheriff's Department.
He stated that he and his dog Scooby had to undergo special training and certification for
this position. Ricard pulled over a Toyota Tundra pickup truck heading westbound on
Interstate 70 for an obstructed registration or license plate. He explained that the state
name on the Ohio license plate was blocked. After Ricard activated his lights, the truck
came to a complete stop near mile marker 303 about one minute and nine seconds (1:09)
later without incident.
Parenthetically, we note that Ricard's testimony at the motion to suppress hearing
references a time clock from a video recording of the traffic stop that is not included in
the record on appeal. The minute references refer to that video time clock. The video time
clock is ahead of the actual stop length by about 1:09—based on when Ricard activated
his lights.
Ricard testified that he approached the vehicle from the passenger's side, informed
Stephens of his reason for stopping the truck, and requested his driver's license and
insurance information. After searching for his driver's license for a couple of seconds,
Stephens asked Ricard if he could look for it in the backseat of the truck. Ricard
permitted Stephens to exit the truck, walk around him, and search for his driver's license.
Ricard stated at the hearing that he did not pat down Stephens because he was not in fear
5
of his safety. While Stephens searched for his license, Ricard asked Boyle about their
travel plans. Boyle told Ricard that they planned to spend about one week in Las Vegas,
Nevada. About 2:37 into the video of the stop, Stephens found his driver's license and
agreed to accompany Ricard to his patrol car. At that time, Ricard told Stephens that if
everything checked out, he would issue a warning ticket.
Ricard testified that he started to suspect criminal activity was afoot—other than
the traffic violation—by the time he reentered his patrol car with Stephens. Ricard stated
his suspicions were based on Boyle's stated travel plans that the two were heading to Las
Vegas from Ohio. Ricard testified that the Sheriff's Department had noticed an increase
in drugs moving towards Ohio and that Las Vegas was a known drug source location.
Once inside the patrol car, Ricard entered Stephens' identification and vehicle
information into his Mobile Data Terminal, or in-car computer. While waiting for the
results, Ricard asked Stephens about his travel plans. Stephens replied that the two
planned to stay in Las Vegas for about one week. Shortly after Ricard entered Stephens'
information, the computer results showed that Stephens had a valid driver's license, he
was not wanted for any crimes, he had no outstanding warrants against him, and the truck
was properly registered and insured. At this point, 4:09 had elapsed according to the
video of the traffic stop.
About 40 seconds later, Ricard requested from dispatch a check on Stephens'
"triple I" or criminal history information, in part because his in-car computer could not
retrieve this information. Upon questioning by the district court at the hearing, Ricard
testified that he did not request criminal history checks with every traffic infraction but
that he did so here because he believed the truck's occupants were involved in criminal
activity other than the obstructed license plate.
6
About 5:46 into the video of the stop, Ricard exited his patrol car and approached
Boyle, who was still seated in the passenger seat of the truck. Ricard asked Boyle about
his travel plans a second time, and Boyle again told him that they were going to stay in
Las Vegas for about a week. Ricard then asked Boyle to exit the truck and informed him
that he was going to have Scooby sniff around the exterior of the truck. Ricard testified
that, at that point, Boyle was not free to leave.
About 7:25 into the video of the stop, Ricard conducted an exterior dog sniff of the
truck with Scooby. At the 8:54 mark, what did Scooby do? Scooby indicated the presence
of drugs at the truck's rear passenger-side corner of the tailgate area. Ricard subsequently
informed Stephens that the dog indicated to the presence of a controlled substance; upon
further questioning, Stephens told Ricard that he did not have any illegal substances or
large amounts of money in the truck. Ricard then informed Boyle, who was still standing
on the side of the road, of the situation. At the 11:01 mark, dispatch attempted to contact
Ricard.
The district court granted Boyle's motion to suppress evidence in a written order,
ruling that Ricard's request for Stephens' criminal history unreasonably prolonged the
duration of the traffic stop. The district court found that the traffic stop for the obstructed
license plate was completed 4:09 into the video of the stop or when Ricard knew that
Stephens had a valid driver's license, he had no warrants, and the vehicle was properly
registered and insured. The district court also found that Ricard did not have reasonable
suspicion to prolong the traffic stop since his suspicion was based only on the occupants'
travel plans and that he impermissibly prolonged the stop by requesting a check on
Stephens' criminal history after the stop's completion. The district court rejected the
State's assertion that law enforcement officers have a right to request criminal history
information at every traffic stop. Instead, the district court held that the factual
circumstances showed that Ricard had no need to request the criminal history check
because he did not have concerns for his safety and the stop was not dangerous.
7
After the hearing, the State filed a motion for reconsideration, arguing that a recent
decision from this court in State v. Jimenez, No. 116,250, 2017 WL 758139 (Kan. App.)
(unpublished opinion), rev. granted 306 Kan. 1325 (2017), required the district court to
reverse its decision. In relevant part, the State argued that Jimenez held that performing a
criminal history check on a driver during a traffic stop was within the original scope and
purpose of every stop, so a criminal history check could not serve as an unreasonable
extension of the duration of a traffic stop.
In Jimenez the officer requested a check on the driver's and the passenger's
identification information, i.e., driver's license, warrant check, and criminal history, from
dispatch at the same time; while waiting for dispatch to provide the information from the
full records check, the officer conducted the K-9 drug sniff. Unlike in Jimenez, the
district court here concluded that Ricard had all the information he needed to conclude
the original purpose of the traffic stop after he completed his in-car computer check but
before he requested Stephens' criminal history. The district court denied the State's
motion for reconsideration and determined that Jimenez was distinguishable.
The State brings this interlocutory appeal seeking reversal of the district court's
suppression of the evidence.
DID THE DISTRICT COURT ERR IN GRANTING THE MOTION TO SUPPRESS?
Before us, the State argues the district court erred in ruling that law enforcement's
criminal history check of Stephens unreasonably prolonged the traffic stop absent
reasonable suspicion that other criminal activity was afoot.
"When reviewing a motion to suppress evidence, the factual underpinnings of the
district court's decision are reviewed for substantial competent evidence and the ultimate
legal conclusion is reviewed de novo." State v. Cleverly, 305 Kan. 598, 604, 385 P.3d
8
512 (2016). "Substantial competent evidence is legal and relevant evidence a reasonable
person could accept to support a conclusion." State v. Bird, 298 Kan. 393, 399, 312 P.3d
1265 (2013). An appellate court "normally gives great deference to the factual findings of
the district court. The appellate court does not reweigh evidence, assess the credibility of
witnesses, or resolve conflicts in evidence. [Citations omitted.]" State v. Talkington, 301
Kan. 453, 461, 345 P.3d 258 (2015).
A. The Fourth Amendment Applies to Civil Forfeiture Actions.
In One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696, 85 S. Ct. 1246,
14 L. Ed. 2d 170 (1965), the United States Supreme Court held that "the constitutional
exclusionary rule does apply to such forfeiture proceedings." Although forfeiture actions
are civil in nature, the protections against unreasonable searches and seizures guaranteed
by the Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution Bill of Rights are applicable. State v. 1990 Lincoln Town Car, 36 Kan. App.
2d 817, 820, 145 P.3d 921 (2006). While the Kansas Supreme Court has not expressly
adopted the Plymouth Sedan holding, it has implicitly recognized the exclusionary rule
applies in the civil forfeiture context. See Martin v. Kansas Dept. of Revenue, 285 Kan.
625, 641, 176 P.3d 938 (2008) (noting that Plymouth Sedan applied exclusionary rule to
civil forfeiture actions which are "quasi-criminal in character"), overruled on other
grounds by City of Atwood v. Pianalto, 301 Kan. 1008, 1011-13, 350 P.3d 1048 (2015).
B. Fourth Amendment Searches and Seizures, Generally
The Fourth Amendment protects the "right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures." U.S.
Const. amend IV. "[Section] 15 of the Kansas Constitution Bill of Rights [provides] the
same protection from unlawful government searches and seizures as the Fourth
9
Amendment." State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). The State
has the burden of proving the search or seizure was lawful. Cleverly, 305 Kan. at 605.
C. Traffic Stop Seizures, Generally
While the parties do not challenge the validity of the initial traffic stop here, a
traffic stop is a seizure under the Fourth Amendment. See State v. Jones, 300 Kan. 630,
637, 333 P.3d 886 (2014); see also Terry v. Ohio, 392 U.S. 1, 16-17, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968) (investigative detention is a type of traffic stop, commonly referred
to as a Terry stop). For the traffic stop to be "constitutionally reasonable, the officer must
know of specific and articulable facts that create a reasonable suspicion the seized
individual is committing, has committed, or is about to commit a crime or traffic
infraction." Jones, 300 Kan. at 637 (citing State v. Garza, 295 Kan. 326, 332, 286 P.3d
554 [2012]); Terry, 392 U.S. at 21; see also Whren v. United States, 517 U.S. 806, 813,
116 S. Ct. 1769, 135 L. Ed 2d 89 (1996) (justification for stop not based upon subjective
motivations of law enforcement).
1. Duration and Scope of a Traffic Stop Seizure
A traffic stop seizure that is justified at its inception can become illegal if the law
enforcement officer unreasonably prolongs the duration of the stop beyond its mission.
See Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005).
While law enforcement does not extend the duration of a stop by asking questions related
to its purpose, questions unrelated to the purpose of the stop are permitted so long as
"[a]n officer's inquiries into matters unrelated to the justification for the traffic stop . . . do
not measurably extend the duration of the stop." Arizona v. Johnson, 555 U.S. 323, 333,
129 S. Ct. 781, 172 L. Ed. 2d 694 (2009).
10
However, the United States Supreme Court recently rejected the government's
argument that an officer may prolong a traffic stop to conduct unrelated tasks "so long as
the officer is reasonably diligent in pursuing the traffic-related purpose of the stop, and
the overall duration of the stop remains reasonable in relation to the duration of other
traffic stops involving similar circumstances." Rodriguez v. United States, 575 U.S. __,
135 S. Ct. 1609, 1616, 191 L. Ed. 2d 492 (2015). Explained the Court:
"'[A] relatively brief encounter,' a routine traffic stop is 'more analogous to a so-called
"Terry stop" . . . than to a formal arrest.' Like a Terry stop, 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.
Because addressing the infraction is the purpose of the stop, it may 'last no longer than is
necessary to effectuate th[at] purpose.' Authority for the seizure thus ends when tasks tied
to the traffic infraction are—or reasonably should have been—completed. [Citations
omitted.]" 135 S. Ct. at 1614.
The Court further emphasized that "[o]n-scene investigation into other crimes . . . detours
from [the] mission [of the traffic stop]. So too do safety precautions taken in order to
facilitate such detours." 135 S. Ct. at 1616. Instead, the Court agreed that while an officer
may conduct certain investigations unrelated to the traffic violation, the officer "may not
do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily
demanded to justify detaining an individual." 135 S. Ct. at 1615.
The time permitted to complete the mission or investigation of a traffic violation
includes precautions taken to promote officer safety and "'ordinary inquiries incident to
[the traffic] stop.'" 135 S. Ct. 1615 (quoting Caballes, 543 U.S. at 408). Ordinary
inquiries incident to a traffic stop expressly and typically include "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
11
operated safely and responsibly. [Citations omitted.]" Rodriguez, 135 S. Ct. at 1615. A
dog sniff is not a routine part of a normal traffic stop. 135 S. Ct. at 1615.
Moreover, because traffic stops are "'especially fraught with danger to police
officers[,]'" Johnson, 555 U.S. at 330, the time needed to complete the mission of
investigating the traffic infraction may require an officer "to take certain negligibly
burdensome precautions in order to complete his mission safely." Rodriguez, 135 S. Ct. at
1616. Given this danger, detaining a motorist for a short period so that law enforcement
may check for any outstanding warrants or criminal history, "even though the purpose of
the stop had nothing to do with such prior criminal history," may be justified for officer
safety. United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001) (en banc), abrogated
on other grounds as recognized in United States v. Stewart, 473 F.3d 1265, 1269 (10th
Cir. 2007); see also United States v. Cone, 868 F.3d 1150, 1153 (10th Cir. 2017)
(criminal history questions permitted for officer safety).
2. Kansas Caselaw Concerning the Duration of a Routine Traffic Stop
The Kansas Supreme Court has not directly addressed how Rodriguez impacts the
permissible duration of a routine traffic stop but has held that the permissible duration of
the traffic stop includes the time required for the officer to "request the motorist's driver's
license, car registration, and proof of insurance; conduct a computer check; issue a
citation; and take those steps reasonably necessary to protect officer safety. The stop can
last only as long as necessary to complete those tasks, and those tasks must be diligently
pursued." (Emphasis added.) State v. Smith, 286 Kan. 402, 410, 184 P.3d 890 (2008); see
Jones, 300 Kan. at 640. "[O]nce the officer determines that the driver has a valid license
and the purpose for the traffic stop has ended, the driver must be allowed to leave without
further delay. Coleman, 292 Kan. at 816; Anderson, 281 Kan. at 902; State v. Mitchell,
265 Kan. 238, 245, 960 P.2d 200 (1998)." Jones, 300 Kan. at 640.
12
A panel of this court recently had the opportunity to apply the law on traffic stops
after the Rodriguez decision in Jimenez, 2017 WL 758139. In Jimenez, the driver was
pulled over for the traffic infraction of following the vehicle in front of her too closely.
The officer requested from dispatch a simultaneous record check on the driver's and the
passenger's identification information and criminal history. The officer also visited with
Jimenez about her travel plans. While waiting on the return from dispatch, the officer had
his patrol dog conduct an exterior sniff of the car. The dog alerted to the rear bumper, and
large quantities of cash were found. Following a hearing on the motion to suppress, the
district court suppressed the evidence from the search of the vehicle, finding that the
criminal record checks and the officer's questions relating to travel plans unreasonably
prolonged the stop.
On appeal, the panel reversed, holding that "[p]erforming a criminal record check
on the driver of an automobile is within the scope of a traffic stop." 2017 WL 758139, at
*4. Relying on State v. DeMarco, 263 Kan. 727, 952 P.2d 1276 (1998), the panel
reasoned that because a criminal record check is within the purpose of a traffic stop, an
officer's inquiry into a driver's criminal history cannot measurably—and impermissibly—
extend a traffic stop. 2017 WL 758139, at *4. In DeMarco, the driver was pulled over for
a failure to signal a lane change. During the stop, the officer requested a simultaneous
records check from dispatch on the driver's and the passenger's driver's licenses,
outstanding warrants, and criminal history. Under the facts of the case, our Supreme
Court stated that a criminal record check on a driver did not extend the duration of the
stop and held that the computer check was permissible. 263 Kan. at 734. The panel
interpreted DeMarco as follows: "The language from DeMarco essentially states the
police may not measurably extend the stop to investigate matters unrelated to a stop;
however, a criminal record check on a driver is within the purpose of a stop. See 263
Kan. at 734; accord Johnson, 555 U.S. at 333." (Emphasis added.) 2017 WL 758139, at
*4.
13
The Jimenez panel applied Rodriguez' constitutional requirement that "[t]he time
'"reasonably required to complete the mission" of issuing a ticket' include[s] the
'"ordinary inquiries incident to [the traffic] stop."'" 2017 WL 758139, at *3 (quoting
Rodriguez, 135 S. Ct. at 1615). In adopting Rodriguez' "limited, but not all inclusive, list"
of ordinary inquiries incident to a traffic stop—which expressly includes "'checking the
driver's license, determining whether there are outstanding warrants against the driver,
and inspecting the automobile's registration and proof of insurance[,]'"—the Jimenez
panel implicitly placed the criminal record check into the ordinary inquiries incident to
the traffic stop category. 2017 WL 758139, at *3-5 (quoting Rodriguez, 135 S. Ct. at
1615).
The State asks us to find Jimenez controlling—that a criminal record or history
check is always a permissible part of a routine traffic stop as an ordinary inquiry incident
to the stop because of the safety hazards faced by law enforcement at every traffic stop.
However, we are not bound by a decision of another panel of our court. State v. Fahnert,
54 Kan. App. 2d 45, 56, 396 P.3d 723 (2017).
Here, the district court found Jimenez distinguishable from the facts of this case in
ruling against the State's motion for reconsideration. Specifically, the district court noted
that in Jimenez the officer used dispatch to conduct all the records checks at the same
time. Here, Ricard used his in-car computer to complete most of the records checks and
then contacted dispatch to conduct the criminal history check.
Like the district court, other panels of this court have noted similar factual
distinctions in cases interpreting the constitutionality of the duration of a traffic stop. In
State v. Lewis, 54 Kan. App. 2d 263, Syl. ¶ 6, 399 P.3d 250 (2017), rev. denied December
22, 2017, the panel held: "Unless simultaneously engaging in activities related to the
completion of the routine traffic stop, law enforcement officers cannot engage in
activities that focus solely on preparing for a dog sniff during the stop. Such actions
14
unreasonably prolong a traffic stop." Another panel in State v. Schooler, No. 116,636,
2017 WL 2212102, at *5 (Kan. App.) (unpublished opinion), rev. granted 306 Kan. 1329(2017), found it was not improper for the officer to "perform a criminal record check on
[the driver] while he was checking his driver's license and the registration of the vehicle
he was driving." Each panel reasoned that a criminal history check that occurs at the
same time as the other checks is permissible as held in Jimenez. But the decisions also
support a finding that the factual circumstances surrounding how an officer conducts or
orders the records checks can impact the validity and the permissible duration of a traffic
stop.
The panel in Lewis reiterated that Rodriguez permits two types of police inquiries
during the mission of a traffic stop: ordinary inquiries incident to the traffic stop and
safety precautions which are not taken solely to facilitate the "'investigation into other
crimes.'" Lewis, 54 Kan. App. 2d at 271 (quoting Rodriguez, 135 S. Ct. at 1616). But
significantly, the Lewis panel did not include a criminal history check as a routine part of
a traffic stop; rather, it concluded that the law permits an officer to "request an
individual's license and registration, run a computer check, and issue the ticket" during a
routine traffic stop. 54 Kan. App. 2d at 271 (citing State v. Morlock, 289 Kan. 980, 986,
218 P.3d 801 [2009]). The panel concluded that the officer's safety precaution—requiring
the occupant to exit the vehicle in order to conduct a dog sniff safely—was an improper
detour that prolonged the mission of the traffic stop so that the officer could conduct the
dog sniff absent reasonable suspicion that other criminal activity was afoot. 54 Kan. App.
2d at 283.
Given that traffic stops are dangerous for police officers, we have no quarrel with
the general proposition that safety concerns typically associated with a traffic stop would
in many, if not most, cases justify a criminal history check contemporaneously with
routine law enforcement checks of a driver's license, outstanding warrants, and the
validity of the vehicle's registration and insurance. In that sense, we agree with the panel
15
in Jimenez. But more persuasive to us is that at least two other panels of this court
recognize that the factual circumstances of when and how an officer orders a criminal
history check may affect the constitutionality of the stop. We therefore decline the State's
invitation to adopt Jimenez' bright-line rule approach—that all traffic stops permit
criminal history checks as part of a traffic violation because traffic stops are inherently
dangerous.
As outlined in Lewis and Schooler above, the officer's manner in conducting the
relevant records checks and safety precautions may affect the validity of the inquiry and
the traffic stop itself. See United States v. Evans, 786 F.3d 779, 787 (9th Cir. 2015)
(holding ex-felon registration check which includes check on criminal history and
whether properly registered at address for prior crimes impermissible); State v. Sanders,
248 F. Supp. 3d 339, 345-346 (D.R.I. 2017) (first holding that "most courts . . . have held
that police officers are permitted to conduct criminal background checks in the interest of
officer safety without demonstrating additional justification under the Fourth
Amendment" but distinguishing its case from Evans based on particular "context" of each
traffic stop). The United States Supreme Court emphasized in Rodriguez that "[t]he
reasonableness of a seizure . . . depends on what the police in fact do." (Emphasis
added.) 135 S. Ct. at 1616. "If an officer can complete the traffic-based inquiries
expeditiously, then that is the amount of 'time reasonably required to complete [the
stop's] mission.'" 135 S. Ct. at 1616 (quoting Caballes, 543 U.S. at 407). Moreover,
challenges under the Fourth Amendment generally do not support the use of bright-line
rules given "the fact-specific nature of the reasonableness inquiry." Ohio v. Robinette,
519 U.S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996).
Here, the issue of the criminal history check relates to the permissible duration of
a government seizure imposed on individuals subject to a traffic stop. The treatment of
the criminal history check here differs from other officer safety actions taken by law
enforcement during a stop because it does not necessarily reduce an immediate safety
16
concern—such as moving a person away from a suspected weapon in a vehicle or
ensuring that a person does not have a weapon immediately available for his or her use
against the officer. Conversely, the criminal history check during a traffic stop does not
necessarily require that the officer have a reasonable suspicion that the person is armed or
dangerous; rather, it helps the officer deal with safety concerns by becoming "better
appri[s]ed of whether the detained motorist might engage in violent activity during the
stop." Holt, 264 F.3d at 1222. A bright-line rule would permit an officer to conduct
criminal history checks or any records check regardless of how the check occurs, when
the officer orders the check in relation to the other routine traffic-related investigations,
or how long the check takes, all of which overlook the fact-specific inquiry required
when reviewing Fourth Amendment challenges.
D. The Criminal History Check Was Unjustified.
Applying the case-by-case approach, we agree with the district court and fail to
see the justification in Ricard's request for a criminal history check under the facts before
us. Of particular concern is the lack of an officer safety justification.
Here, Ricard stated that he stopped the truck because the license plate was
obstructed. Although the lawfulness of the stop is not an issue, the reason for the stop is
relevant to the question of how much time was necessary to complete the mission of
issuing a ticket for the violation. See Rodriguez, 135 S. Ct. at 1614 (the "tolerable
duration of police inquiries in the traffic-stop context is determined by the seizure's
'mission'").
The district court found that Ricard did not have any concerns for his safety at the
time he requested the criminal history check. Ricard admitted that he did not feel
concerned for his safety during this particular traffic stop, and his testimony regarding his
actions during the stop support a lack of safety concerns. Ricard permitted Stephens to
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walk around him and search for his driver's license in the back passenger seat, did not
pat-down Stephens during this encounter, and had Stephens accompany him to his patrol
car. There, Ricard performed the routine check on his in-car computer of Stephens'
driver's license, whether any outstanding warrants existed, and the validity of the
vehicle's registration and insurance. Significantly, it was only after Ricard received the
results of his in-car computer check—which confirmed that Stephens had a valid driver's
license, he had no outstanding warrants, and the vehicle was properly registered and
insured—that Ricard contacted dispatch to request a criminal history check on Stephens.
Based upon this record, we agree with the district court's finding that Ricard did
not use the criminal history check as a safety precaution within the mission of the traffic
stop because this finding is supported by substantial evidence. Ricard's criminal history
check request took place nearly four minutes after the stop. About six minutes then
elapsed between Ricard's criminal history request from dispatch and when dispatch next
contacted Ricard. It was during those six minutes that Ricard conducted the dog sniff and
during which the dog alerted to the presence of drugs. Ricard's act of requesting dispatch
to conduct a criminal history check, which gave him time to have Scooby perform the
dog sniff of the vehicle, is precisely the kind of inquiry that Rodriguez forbids because it
morphed the traffic stop into an "[o]n-scene investigation into other crimes" and
impermissibly utilized a safety precaution—a criminal history check—to facilitate a
detour to a drug investigation. See 135 S. Ct. at 1616.
By the time Ricard requested the criminal history check, he had no safety concerns
and he already knew that Stephens' driver's license and vehicle checked out. Because a
traffic stop seizure must end "when tasks tied to the traffic infraction are—or reasonably
should have been—completed[,]"135 S. Ct. at 1614, Ricard was compelled to release
Stephens at that point. The time it took for dispatch to conduct a criminal history check,
which in turn gave Scooby time to conduct a dog sniff, impermissibly extended the
duration of the stop. We agree with the district court's conclusion that the seizure that
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occurred during the dog sniff violated the Fourth Amendment, and the evidence must be
suppressed.
Affirmed.
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