This post contains a summary and discussion of several cases that have shaped Fourth Amendment search and seizure law related to traffic stops and car searches:
- Robinette II and III– A lawful traffic stop ended. Was consent to search a car given during the subsequent unlawful detention voluntary and the product of free will?
- Caballes – During a lawful traffic stop, a dog sniff is not an unreasonable search if it does not prolong the lawful stop.
- Rodriguez – The mission of a traffic stop is to check a license, registration and insurance proof and determine if
warrants exist. A dog sniff without voluntary consent after the time in which the mission should
reasonably be completed is unlawful unless there was reasonable suspicion of criminal activity
developed during the lawful stop that justified the continued detention.
- A recent Federal District Court decision – Imposing a greater showing by the state to prove voluntariness of
consent to search a car after a lawful traffic stop is over and the detention continues without
reasonable suspicion of drug activity.
In Ohio v. Robinette, 519 US 33 (1996), the United States Supreme Court reviewed under what circumstances consent to search a car will be recognized as voluntary if consent is sought
after the conclusion of a lawful traffic stop. Robinette was stopped for speeding. A Deputy took Robinette’s license, ran a computer check which was “clean,” and then returned to Robinette’s car and asked him to step out. The Deputy turned on his dash-cam, warned Robinette about speeding, and returned his license. At that point the Deputy asked Robinette if he had any drugs and if he could search his car. Robinette denied drugs but consented to the search. Drugs were found in the search and Robinette was prosecuted.
Robinette pled “no contest.” He was found guilty, sentenced, and then appealed the trial Court’s ruling denying his motion to suppress the drug evidence. The Supreme Court of Ohio held the search to be unlawful. In its opinion the Court held:
“When the motivation behind a police officer’s continued
detention of a person stopped for a traffic violation is not related to
the purpose of the original constitutional stop, and when that
continued detention is not based on any articulable facts giving rise
to a suspicion of some separate illegal activity justifying an
extension of the detention, the continued detention constitutes an
Second, the Court established a bright line prerequisite for consensual interrogation under the circumstances of the case: “…citizens stopped for traffic offenses (must) be clearly
informed…when they are free to go after a valid detention, before an officer attempts to engage in a consensual interrogation. Any attempt of consensual interrogation must be preceded by the phrase ‘at this time you legally are free to go’.…” The United States Supreme Court decided to review this per se rule and reversed. The Court stated that the “touchstone of the Fourth Amendment is reasonableness.” Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances. Further, the Court stated that in applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact specific nature of the reasonableness inquiry.
Finally, the Court reiterated what it said in Schneckloth v. Bustamonte, 412 US 218 (1973): “While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” The Court concluded that valid consent to search can be achieved without telling a detainee he is “legally free to go,” as voluntariness required for a valid consent is a question of fact to be determined from all the circumstances. The judgment of the Supreme Court of Ohio was reversed, and the case was remanded.
In State v. Robinette, 80 Ohio St.3d 234 (1997), the Court noted that once Robinette denied having contraband and the traffic stop was completed, further detention to ask if the
police could search his car without a reasonable suspicion of criminal activity was unlawful. However, in light of the United States Supreme Court’s opinion, the Court stated it had to address whether consent, determined under the totality of the circumstances, validated an otherwise illegal detention and search. It quoted from Royer that the state has the burden of proving that the necessary consent was obtained and that it was “…freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.”
As stated by the Court, the Deputy advised Robinette that he was letting him off with a warning but without any break in the conversation asked about contraband, which Robinette
denied possessing. The Deputy then asked if he could search Robinette’s car. The Deputy’s words implied that Robinette was not free to go. Further, the Court noted the officer’s superior
position of authority as another factor that any reasonable person would have felt compelled to submit to the questioning.
On remand, the Supreme Court of Ohio disavowed its initial ruling that an officer must tell a person stopped for a traffic violation that he or she is free to go at the end of the stop before
trying to get consent to search a car. It held that once a person has been unlawfully detained, for consent to be considered an independent act of free will, the totality of facts must clearly
demonstrate that a reasonable person would believe that he or she had the freedom to refuse to answer further questions and could in fact leave. The Court concluded that Robinette did not voluntarily consent to the search of his car and that the evidence seized was inadmissible.
Nearly 20 years after Robinette, the United States Supreme Court decided Rodriguez v. United States, 575 U.S. 348 (2015). The Court began its opinion by noting that in Illinois v.
Caballes, 543 U.S 405 (2005) it held that a dog sniff conducted during a lawful traffic stop was not an unreasonable seizure. This is because although it was an investigation unrelated to the
traffic stop it did not lengthen the roadside detention (the time reasonably required to complete the mission of the original stop). In Rodriguez, the defendant was stopped in Nebraska for a minor traffic violation. The officer who stopped him was a K-9 officer and he was accompanied by his dog, Floyd. The officer gathered Rodriguez’s license, registration, and proof of insurance. He also obtained the passenger’s license. He ran a records check of both (clean) and questioned them about their travels. At that point the officer returned the documents and gave Rodriguez a warning. The officer then asked for permission to walk his dog around Rodriguez’s car. It was denied but Rodriguez was ordered to exit the car and Floyd walked around it. As it turned out, Floyd alerted to the presence of drugs about eight minutes after the warning was issued. The resulting search revealed meth.
Rodriguez was convicted and his (overruled) motion to suppress made its way to the United States Supreme Court. The Court wanted to resolve the question whether police can
routinely extend an otherwise completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. The Court reviewed some of its prior pronouncements of law. 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. Caballes- the scope of the detention must be carefully tailored to its underlying justification. Florida v. Royer, 460 U.S. 491 (1983); authority for the seizure ends when tasks tied to the traffic violation are – or reasonably should have been – completed. United States v. Sharpe, 470 U.S. 675 (1985). As stated in Rodriguez, an officer’s “mission” (during a traffic stop) includes ordinary
inquiries incident to the stop. Such inquiries involve checking the license, determining the existence of warrants, and inspecting the car’s registration and proof of insurance. Delaware v.
Prouse, 440 U.S. 48 (1979). A dog sniff, by contrast, is aimed at detecting evidence of ordinary criminal wrongdoing.
The Court concluded that a traffic stop prolonged beyond the amount of time reasonably required to complete the stop’s mission is unlawful. “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., add time to – the stop.” The Court remanded the case to the Court of Appeals to determine whether reasonable suspicion of criminal activity justified detaining Rodriguez beyond completion of the traffic violation investigation.
Juxtaposing the opinions in Robinette and Rodriguez an obvious question is how the police may validly obtain consent to search a car pursuant to a lawful traffic stop. If the police ask for consent to search before completing the stop, the person giving consent may well feel that the officer’s decision as to whether to issue a citation may turn into whether consent is given. If so, this would seem to make the consent to search involuntary (given in submission to authority). On the other hand, if the officer waits to ask for consent until after the traffic stop is completed, he has run afoul of Rodriguez by prolonging the stop for a purpose unrelated to the stop. The solution would seem to be for the officer to tell the person that the stop is completed and that he is free to go. The officer could then ask for consent to search, and it would likely be viewed as voluntary. The problem with this analysis is that in Robinette the United States Supreme Court said that valid consent to search under similar circumstances might be established under the totality of facts without telling a detainee he is “free to go.” A Federal District Court Judge recently addressed the voluntariness of consent to search cars in a decision challenging a practice known as the “Kansas Two Step.”
“THE KANSAS TWO STEP”
In Kansas, State Troopers have long engaged in a practice known as the “Kansas Two Step.” In essence, after Troopers finish a traffic stop by issuing a warning or a ticket they start to walk away, then turn back to talk more to the motorist. Just before they do the “Two Step” they are trained to end the initial stop with phrases like “have a safe trip,” “take care,” or “have a good day.” They are also trained not to inform motorists that they are free to go. One goal of the “Two Step” is to make it look like there is no longer a detention, that the subsequent inquiries (looking for reasons to search their cars for drugs) are consensual, and to give a drug dog time to get to the scene. Typically, the practice is used on out of state drivers from states that permit recreational or medical marijuana.
The ACLU filed two separate lawsuits on behalf of drivers who were subjected to the “Two Step.” In July, 2023 Senior U.S. District Judge Kathryn Vratil issued a scathing 79-page order declaring the “Two Step” violates motorists’ constitutional right against unreasonable searches. Google the “Kansas Two Step” and you will find the decision.
In some instances, the Court said that after evaluating the totality of the circumstances the Troopers did not have reasonable suspicion to detain drivers for a canine sniff. She noted that the factors Troopers used to justify having a reasonable suspicion about a possible drug crime – such as a motorist’s travel plans – “are so ordinary and benign” that they could apply to thousands of drivers. Further, when Troopers executed the “Two Step” many reasonable drivers would not feel free to leave. Rather, they would believe they were still detained. In such cases the Court found the continued detention was unlawful. Judge Vratil notified the Kansas Highway Patrol that she is ready to impose changes in their policing practices. They would include a requirement that Troopers specifically inform motorists they stop that they have a right to reject a search or to revoke consent to one at any time.