by Anthony W. Accurso

The U.S. Court of Appeals for the Tenth Circuit held that the various hunches of drug-related activity articulated by a Utah Highway Patrol Trooper were insufficient to prolong a traffic stop in order for a drug-detection dog to arrive on scene to search for drugs, that doing so violated the defendant’s Fourth Amendment right against unreasonable seizures, and that evidence obtained as a result of the unlawful search must be suppressed.

Utah Highway Patrol Trooper Adam Gibbs saw a vehicle with out-of-state (Kansas) plates allegedly traveling “a little fast” (about five miles over the posted speed limit) and changing lanes without signaling for at least two seconds beforehand as required by statute on Interstate 15. Gibbs initiated a traffic stop just after 9:00 a.m. on November 12th, 2019. As he approached the vehicle driven by Antoine Dwayne Frazier, he noticed two duffle bags on the backseat, one of which “appeared to be new,” a detail he associated with narcotics smuggling.

Frazier rolled down the car window about four inches to interact with Gibbs, who instructed Frazier to roll it down further. Frazier complied by lowering it another inch or two. Gibbs interpreted this purported reluctance — combined with a bottle of air freshener in the center console — as an attempt by Frazier to conceal odors of drug activity. Gibbs would later testify that he did not smell either air freshener or drugs at any point during the traffic stop.

When Frazier produced his driver’s license, it was from a state (Iowa) that did not match his plates. Gibbs also noticed another state ID in the wallet and ordered Frazier to produce that. Although it was from Missouri, both the Iowa license and Missouri state ID were valid and had the same identifying information.

Frazier indicated that the vehicle was a rental but was unable to produce the rental agreement. Gibbs took a moment to peer into the back of the vehicle as Frazier attempted to locate evidence of the rental agreement on his smartphone, which Gibbs was ultimately able to verify.

Gibbs then began asking Frazier questions about his travel plans that Gibbs claimed Frazier answered “after a momentary pause,” which Gibbs interpreted as deception. Upon further inquiry, Frazier began responding with questions about why Gibbs was asking about his travel plans.

After obtaining Frazier’s phone number and Social Security number, Gibbs returned to his cruiser at 9:11 a.m. However, instead of beginning the process of issuing a citation for the alleged traffic infractions or taking steps to research the rental agreement using information provided by Frazier, Gibbs attempted to contact Deputy Sean Pearson, a canine handler, for the purpose of arranging a drug dog to sniff Frazier’s vehicle. Several minutes passed, as Pearson failed to respond via the secure messaging app in the patrol car and then to radio hails. Gibbs then contacted dispatch and made a request for Pearson that way.

At 9:14 a.m., after first taking steps to pursue a drug investigation, Gibbs began working on the traffic citation — the purpose and justification for conducting the traffic stop — but he interrupted work on the citation to log into DEASIL (a database that utilizes the DEA’s national network of license-plate readers) and search for the locations of Frazier’s vehicle.

The performance of his traffic citation work was again interrupted by a call from Pearson that lasted from 9:15 a.m. until 9:18 a.m. Then at 9:22 a.m., Pearson arrived on scene, ordered Frazier to exit the vehicle, and conducted a pat search — finding a knife in Frazier’s waistband.

The drug-detection dog was deployed and alerted on the vehicle, and a subsequent search yielded a bag of fentanyl pills and a kilo of cocaine. A more invasive search of Frazier’s person uncovered a .22 caliber pistol, which was itself a crime because he had a prior felony conviction for manslaughter from 2006.

Frazier was charged with possession with intent to distribute the fentanyl and cocaine under 21 U.S.C. § 841 (a)(1) and with possession of a firearm in furtherance of a drug trafficking offense under 18 U.S.C. § 924(c)(1)(A). Frazier filed a motion to suppress all incriminating evidence on the ground that the troopers impermissibly prolonged the traffic stop beyond its original purpose in violation of his Fourth Amendment rights. The District Court denied his motion. Frazier negotiated a plea deal that preserved his right to appeal the suppression issue.

The Court began its analysis by noting that a traffic stop is a seizure for Fourth Amendment purposes and thus subject to the reasonableness standard. United States v. Cortez, 965 F.3d 827 (10th Cir. 2020). In order for a traffic stop to be reasonable under the Fourth Amendment, it must be justified upon initiation, and police’s actions must be “reasonably related in scope” to the “mission of the stop.” United States v. Mayville, 955 F.3d 825 (10th Cir. 2020).

The U.S. Supreme Court has instructed that the police’s authority to seize motorists during a traffic stop ceases once “tasks tied to the traffic infraction are — or reasonably should have been — completed.” Rodriguez v. United States, 575 U.S. 348 (2015). Police may not prolong a traffic stop to engage in inquiries unrelated to the purpose of the traffic stop in the absence of the normal reasonable suspicion required to detain an individual under the Fourth Amendment, the Supreme Court further instructed. Id.

The Court explained that under Rodriguez an unlawful seizure occurs when police “(1) diverts from the traffic-based mission of the stop to investigate ordinary criminal conduct, (2) in a way that ‘prolongs’ (i.e., adds time to) the stop, and (3) the investigative detour is unsupported by any independent reasonable suspicion.” Id.; Mayville. Furthermore, even a de minimis delay due to inquiries unrelated to the purpose of the traffic stop, in the absence of reasonable suspicion, violates the Fourth Amendment. Rodriguez; Mayville.

Turning to the present case, the Court observed that Frazier doesn’t challenge the validity of the initial traffic stop. Instead, he argues that the stop was impermissibly prolonged by (1) Gibbs dedicating several minutes to arranging for a drug-detection dog to come on scene before working on the traffic citation and (2) Gibbs interrupting work on the citation to search the DEASIL database. The Court stated that the question is whether Gibb’s non-citation activities diverted him from the purpose of the traffic stop, and if so, whether he had reasonable suspicion to justify his non-citation activities.   

The Court held that Gibbs’ arranging for the drug-detection dog diverted him from the mission of the traffic stop, thereby prolonging it, and although the District Court ruled that Gibbs developed reasonable suspicion to do so, the Court rejected that conclusion. The Court discussed each of the items that the District Court relied upon in reaching its conclusion — viz., (1) the duffle bag, (2) cracking of window and air freshener, (3) Frazier’s response to questioning, (4) multiple IDs, (5) missing rental agreement, and (6) rental car and cross-country travel — and concluded that none of them individually amount to reasonable suspicion, which requires a “particularized and objective basis for suspecting criminal conduct under a totality of the circumstances.” United States v. Pettit, 785 F.3d 1374 (10th Cir. 2015). And even viewed in the aggregate, they only amount to a hunch by Gibbs that Frazier was attempting to hide something, according to the Court. United States v. Kitchell, 653 F.3d 1206 (10th Cir. 2011) (“reasonable suspicion cannot be based upon a mere hunch”). Thus, the Court held that by prolonging the traffic stop to arrange for the drug-detection dog, Frazier was seized in violation of the Fourth Amendment.

The Court then addressed the issue of Gibbs’ DEASIL search. The Government argued that it didn’t prolong the traffic stop because he performed the search while he was waiting to hear back from dispatch on a topic related to the traffic stop and that the search results establish reasonable suspicion. The Court rejected this argument because it fails to take into account the preceding “Rodriguez violation,” i.e., Gibbs’ impermissible prolonging of the traffic stop to arrange for a drug-detection dog to come onsite.

The Court explained that the key question in situations like the present case where there are two instances of a “Rodriguez moment,” i.e., the moment when police prolong a traffic stop by engaging in non-traffic inquiries, is identifying the moment the first “Rodriguez moment” occurred. See Rodriguez; see, also United States v. Green, 897 F.3d 173 (3d Cir. 2018). Once a “Rodriguez moment” occurs, “then nothing later in the stop [can] inform [the court’s] reasonable suspicion analysis.” Green. If reasonable suspicion is lacking at the moment of the initial “Rodriguez moment,” then continued seizure of the individual remains unlawful from that point onwards. See Rodriguez; see also Green.

Applying the foregoing rules to the present case, the Court stated that the first “Rodriguez moment” occurred when Gibbs made arrangements for the drug-detection dog, and so, only those facts known to him at that moment can be used to establish reasonable suspicion. The Court added that “Facts learned later in the investigation are irrelevant.” Undoubtedly, Gibbs had not developed reasonable suspicion at the moment he began making inquiries about the drug dog, so Frazier’s continued seizure from that moment on was unlawful, according to the Court. Therefore, even if the DEASIL search didn’t prolong the traffic stop (and even resulted in developing reasonable suspicion), “it would not matter because the initial illegal seizure was ongoing,” the Court explained.

The Court summarized the key points of its opinion as follows: “Trooper Gibbs departed from the traffic-based mission of the stop by arranging the dog sniff, an investigative detour that was unsupported by reasonable suspicion and that added time to the stop in violation of Rodriguez. Mr. Frazier’s seizure was thereafter in violation of the Fourth Amendment. The trooper’s consultation of the DEA database, a second investigative detour, only aggravated that ongoing violation. Accordingly, the evidence discovered because of that seizure is tainted by its unlawfulness and is inadmissible.” Wong Sun v. United States, 371 U.S. 471 (1963).

Accordingly, the Court reversed the District Court’s denial of Frazier’s motion to suppress. See: United States v. Frazier, 30 F.4th 1165 (10th Cir. 2022).

Editor’s note: As a motorist pulled over for an alleged traffic infraction, you are under no obligation to answer questions about your travel plans. You do not forfeiture your Fifth Amendment privilege against self-incrimination by operating a motor vehicle. Furthermore, the U.S. Supreme Court has instructed that refusing to answer such inquiries unrelated to the purpose of the traffic stop cannot serve to establish reasonable suspicion of criminal activity. Florida v. Bostick, 501 U.S. 429 (1991); Brown v. Texas, 443 U.S. 47 (1979). Courts have acknowledged that “many motorists, even innocent ones, might think it none of the trooper’s business how long” they spent at a particular location or where they came from or are going. E.g., United States v. Santos, 403 F.3d 1120 (10th Cir. 2005).  

Generally, when police start asking questions about a motorist’s travel plans and itinerary during an otherwise routine traffic stop, they are engaging in a fishing expedition for incriminating evidence of unlawful activity unrelated to the alleged traffic infraction – as was the situation in the present case. In fact, police are always fishing for evidence of criminal activity and incriminating admissions during traffic stops. Notice that nearly all traffic stops actually begin on a fishing expedition, viz., the ubiquitous “do you know why I pulled you over?” This seemingly innocuous open-ended question is actually designed to elicit incriminating statements and admissions of guilt on any matter. 

People often get nervous and confused when being questioned by police for a variety of reasons having nothing to do with engaging in criminal activity, but the perception that a motorist is providing “evasive answers” (which nervous and confused answers can easily be characterized as by officers out fishing) can support a finding of reasonable suspicion. E.g., United States v. Simpson, 609 F.3d 1140 (10th Cir. 2010); United States v. Sanchez-Valderuten, 11 F.3d 985 (10th Cir. 1993). Therefore, it’s often advisable to simply not engage with officers on fishing expeditions by politely and calmly advising that “I respectfully decline to answer any questions.” You are well within your rights to do so, and police may not use your refusal to answer questions as reasonable suspicion for prolonging your seizure (traffic stop) any longer than necessary to issue a traffic citation or for performing a search of you or your vehicle.     

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