Police officer’s repeated inquiries impermissibly extended traffic stop

A police officer’s search of a motor vehicle after he impermissibly extended a traffic stop violated the Fourth Amendment, a divided panel of the Court of Appeals of Virginia has held in reversing the driver’s conviction for possession of drug paraphernalia.

Although the driver consented to the search after repeatedly denying knowledge of drugs in the vehicle, the majority found that her consent was “tainted by the illegality and was ineffective to justify the search.”

Writing for the majority, Judge Junius P. Fulton III said the record did not “reflect any indication from either [officer] that [the driver’s] behavior during the stop gave rise to the additional reasonable suspicion necessary to justify prolonging the stop to search the vehicle for drugs, nor does the Commonwealth argue such justification.”

Judge Randolph A. Beales joined Fulton in reversing the trial court’s denial of the suppression motion in Knight-Walker v. Commonwealth (VLW 025-7-009).

In a dissent in the unpublished opinion, Judge Lisa M. Lorish said that evidence should only be excluded if it was discovered after the stop actually ended or should have ended.

“The mere fact that an officer asks unrelated questions (which necessarily takes some amount of time) does not mean that the entire rest of the detention is illegal,” Lorish wrote.

No ‘bonus time’

Assistant public defender Jason Drake represented Knight-Walker at trial and on appeal. He said Virginia’s interpretations of the U.S. Supreme Court’s decision in Rodriguez v. United States were not “intuitive” for the judges, who asked contextual questions about the traffic stop.

Calling it an “encouraging” opinion, Staunton public defender Duane Barron said Knight-Walker “makes it clear that extending an investigatory stop so that an officer can fish for other speculative violations for which the officer has no reasonable suspicion or probable cause is not allowed.”

“Rodriguez stands for the premise that an officer doesn’t get bonus time by acting quickly,” Drake said, adding that “the Virginia line of cases confirms that any time added at all is impermissible.”

Not mentioned in the opinion was the trial court’s finding that a search of Knight-Walker’s vehicle was inevitable because it would have been towed, a fact not in evidence, he said.

“The officers issued my client a summons and left her with the vehicle at the scene,” Drake said.

Calling it an “encouraging” opinion, Staunton public defender Duane Barron said Knight-Walker “makes it clear that extending an investigatory stop so that an officer can fish for other speculative violations for which the officer has no reasonable suspicion or probable cause is not allowed.”

Barron went on to say that the dissent failed to appreciate “that this happens to poor people and people of color much more often than to other groups.”

The Attorney General’s Office did not respond to a request for comment but reportedly has filed a petition for en banc review.

The stop

While following Nafeesa Knight-Walker, who was driving 30 miles per hour in a 45 mph zone at around 1:30 a.m., Officer Jordan Allen of the Newport News Police Department discovered that the registered owner of the vehicle had a suspended license.

Allen pulled over Knight-Walker, thinking she looked like the registered owner. Knight-Walker explained that the vehicle was registered to her mother, but Allen said he also stopped her for driving under the speed limit. Allen soon found that Knight-Walker’s license was also suspended.

Allen would not let Knight-Walker drive but allowed her to call another driver. Allen also said he would not arrest Knight-Walker, despite it being her third offense of driving while suspended.

Knight-Walker repeatedly denied having drugs or weapons in the vehicle. While out of the vehicle and being frisked, Knight-Walker responded only with “um” when Allen asked to search the vehicle. Allen found what he considered to be drug paraphernalia in the glove box.

Under a written plea agreement, Knight-Walker entered a conditional guilty plea to misdemeanor possession of controlled paraphernalia, reserving her right to challenge the trial court’s denial of her motion to suppress.

Critical question

The U.S. Supreme Court articulated in Rodriguez that “[b]eyond determining whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop.’”

“Authority for the seizure ends when tasks tied to the traffic infraction are – or reasonably should have been – completed,” the Rodriguez court held, noting the critical question is whether an officer’s unrelated investigative inquiry adds time to the stop.

Fulton found that Knight-Walker’s traffic stop concluded when Allen informed her that she could not drive the vehicle, but also that she was not under arrest.

“In order to facilitate her departure from the scene, Knight-Walker, with her cell phone in hand, was in the process of arranging for her son to come and pick her up but was interrupted when Allen began asking if there were drugs in the vehicle and seeking permission to search the vehicle,” the judge wrote.

Following Rodriguez and Illinois v. Caballes, Fulton said “absent reasonable articulable suspicion of other criminal activity, any amount of time extending the traffic stop beyond this point through Allen’s unrelated investigative questioning impermissibly extended the stop.”

He noted Matthews v. Commonwealth, in which the Court of Appeals of Virginia held that “a police officer ‘may conduct certain unrelated checks during an otherwise lawful traffic stop’ but ‘may not do so in a way that prolongs the stop, absent reasonable suspicion ordinarily demanded to justify detaining an individual,’ even if the delay is ‘de minimis.’”

Guns, drugs inquiry

Fulton said that Allen exceeded the bounds of the traffic stop by inquiring about guns and drugs in Knight-Walker’s vehicle without any reasonable articulable suspicion that would justify detaining her any longer.

“Further, Allen had already allowed Knight-Walker and her passenger to search and rummage through the vehicle when they were initially trying to locate her license and the vehicle’s registration without any apparent concern for officer safety as they did so,” Fulton pointed out.

The judge found nothing in the record indicating that Knight-Walker’s behavior during the stop justified prolonging it to search her vehicle for drugs, and the state did not argue such justification.

“These repeated inquiries regarding contraband in the vehicle and the request to search the vehicle, coupled with the subsequent pat-down first and the search of the vehicle – all of which prevented Knight-Walker from calling her son and which were done without reasonable articulable suspicion – impermissibly prolonged the initial traffic investigation beyond what is articulated by the United States Supreme Court in Rodriguez,” he wrote.

Here, Allen was “basically finished with the stop, except for returning Knight-Walker’s license,” Fulton noted, adding that Allen’s repeated inquiries without reasonable articulable suspicion delayed Knight-Walker’s ability to get someone there to drive her vehicle.

Invalidated consent

“‘Consent loses its validity only if it is involuntary or, [is] the product of a manipulative “exploitation” by the police of an earlier unconstitutional search or seizure,’” Fulton explained, looking to Kyer v. Commonwealth.

Having found that Allen impermissibly exceeded the bounds of the stop, Fulton said he unlawfully detained Knight-Walker, thus the search of her vehicle infringed her Fourth Amendment rights.

“Consequently, Knight-Walker’s consent to the search of her vehicle or person was ‘tainted by the illegality and was ineffective to justify the search,’” the judge wrote, adding that any subsequent consent was also invalidated due to taint of illegality.

Thus, the panel concluded that the trial court erred by denying Knight-Walker’s motion to suppress.