Question: Can you continue to detain an individual after a routine traffic stop if you have a hunch the person has engaged in illegal activity?
Quick Answer: Depends. You may detain an individual after a routine traffic stop only if you have a reasonable, articulable suspicion that criminal activity is occurring. If you detain someone longer than necessary, it may not matter whether he gave consent to a search.
State of Ohio v. White, Second Appellate District, Montgomery County, July 12, 2013
Facts: An officer observed Megan White parked in a rear parking lot away from all other vehicles and buildings. As the officer drove up, White was hunched over the center console. She sat up, made eye contact with him, exited the vehicle, and walked into the woods. The officer parked his vehicle and watched White exit the woods and return to her vehicle. White drove away. The officer noticed she had a broken taillight and called for backup. During a routine stop, the two officers walked to White’s vehicle, gave her a verbal warning for the taillight, and told her she was free to leave. The officer immediately asked if he could ask White a question. She agreed. He recounted what he had seen in the parking lot and asked if she had anything illegal in the car. She said no. Then he asked for permission to conduct a search, but he did not inform White she could say no. White agreed and got out of the vehicle. The officer checked the center console and found sandy brown chunks, which he suspected to be heroin, and a marijuana pipe.
The court determined the officers did not have reasonable suspicion that White was engaged in criminal activity sufficient to detain and search her vehicle after the traffic stop. Although White gave consent, the court found the circumstances surrounding the prolonged stop made her consent involuntary.
Importance: What is a hunch or a gut reaction? You get them all the time. It is important to distinguish between a “hunch” and “reasonable suspicion” as that distinction makes the difference between winning and losing a case. When you stop someone, it is your job to detain him or her only as long as necessary to complete the stop. Merely having a hunch that something else may be going on is not good enough to continue the detention. In this case, the officer told the suspect she was free to go, but then immediately detained her longer by seeking her consent to stay, questioning her about criminal activity, and asking to search her car.
Keep in Mind: A hunch is not a reasonable, articulable suspicion. For example, if you just think, “That dude has drugs on him,” but you can’t explain why, you’re playing a hunch. On the other hand, if you can say, “It was late at night, in a high drug-crime area, and the suspect walked away furtively (lawyers love words like “furtive”) when he saw me, in a manner that, in my experience, is consistent with drug dealers,” you are articulating specific grounds for reasonable suspicion. Do not manufacture ways to search if you cannot articulate the criminal activity occurring at that very moment. If you can, make sure your paperwork reflects the reasonable suspicion fully, and make sure the prosecutor asks you about it during testimony.
Other Cases to Consider
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Hey! You can’t search my purse: Make sure that the next time you search a passenger, it is related to the reason the driver was pulled over and arrested. The Second District determined that when the driver was arrested on an outstanding warrant, there were no reasonable grounds to search the passenger’s purse without her consent because the deputy had no reason to believe she had contraband. (State of Ohio v. Caulfield, Second Appellate District, Montgomery County, July 12, 2013)
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Oops. I left my weed in my car. The automobile exception: When you see a car parked on a public street and notice marijuana in plain view, you are able to apprehend the suspect, get his keys, and conduct a search of the car without a warrant. This is because you have probable cause to believe there is contraband in the vehicle and the vehicle is readily movable, so you do not need a warrant under the automobile exception. Once inside, you can perform a full search of the vehicle, looking in all the places where contraband can be hidden. If you find something else, such as a gun in plain view under the passenger’s seat, that can be seized as well. Guess those suspects in Bazrawi should have taken their marijuana with them. (State of Ohio v. Bazrawi, Tenth Appellate District, Franklin County, July 11, 2013)