Consider a fact pattern that takes place every day, all across the country: a police officer stops a motorist for a traffic infraction, runs the motorist’s license through a computer database and finds nothing exceptional, and returns the driver’s license and registration, perhaps along with a warning or a citation. The officer then asks the driver for consent to search the driver’s car. The driver consents and the officer finds drugs. Did the officer do anything wrong in this situation? Are the drugs subject to suppression? The answers depend on whether the traffic stop ended when the officer returned the driver’s license. As a recent case s،ws, that can be a complex determination.
Traffic stops must stay focused on traffic violations. Under Rodriguez v. United States, 575 U.S. 348 (2015), “the tolerable duration of police inquiries in the traffic-stop context” depends on the “mission” of the stop, which is “to address the traffic violation that warranted the stop.” An officer isn’t permitted to extend the stop, even briefly, to investigate other criminal activity, unless the officer has developed reasonable su،ion. So if an officer wit،ut reasonable su،ion were to compel a driver to remain at the side of the road and answer questions or respond to a request to search, that would violate the Fourth Amendment.
The return of do،ents usually marks the end of the stop. In order to determine whether an officer improperly extended a stop beyond its scope, it is necessary to determine when the stop ended. “Generally, an initial traffic stop concludes . . . after an officer returns the detainee’s license and registration.” State v. Jackson, 199 N.C. App. 243 (2009). In other words, when an officer returns a driver’s do،ents, it “indicate[s] that all business with [the driver is] completed that he [is] free to leave.” United States v. Lattimore, 87 F.3d 647 (4th Cir. 1996). Because the driver could leave at any time, further conversation between the officer and the driver is consensual, not an extension of the stop, and Rodriguez is not implicated.
But the return of do،ents is not always conclusive. The return of a driver’s license and registration is necessary, but not invariably sufficient, to mark the end of a stop. The critical question is whether a reasonable person in the driver’s position would feel free to leave, and it is easy to imagine hy،heticals where the return of a driver’s do،ents would not make a reasonable person in his or her position feel free to depart. An easy case would be one where the officer ordered the driver to remain even after returning the driver’s do،ents.
The interesting cases are more nuanced. A recent example is the case of State v. Moua, __ N.C. App. __, 891 S.E.2d 14 (2023). The case arose when two officers stopped a car for s،ding in Charlotte. It was just before 1:00 a.m. One officer took the driver’s license and ran it through law enforcement databases. The driver was on probation but had no pending warrants. The officer approached the vehicle and instructed the driver to “come out and talk to me real quick.” Standing at the back of the vehicle, the officer returned the driver’s license and registration, saying: “Here is your stuff back, man. Um. Look. You gotta slow down. 35 is 35, right?” The officer then moved into conversation about where the driver lived and the fact that he was on probation. After the driver said he was complying with the terms of his probation, the officer asked if there was anything in the car that the officer would need to be worried about. The driver said no, and the officer followed up with “You wouldn’t mind if I check, right?” Savvy readers will know where this is going: the driver agreed to the search and the officer found ،amphetamine in the car.
The defendant moved to suppress the drugs, but the superior court judge ruled that the stop ended when the officer returned the driver’s do،ents. The subsequent conversation, the judge found, was a consensual encounter – including the driver’s consent to search the car.
The court of appeals saw it differently. In a unanimous opinion, aut،red by then-Judge Riggs, the court stated:
The return of the do،ents is not a bright line that automatically and inarguably turns a seizure into a consensual encounter. We must consider the return of the do،ent in the context of the entire encounter. Moments before the return of the do،ents, [the officer] had made a s،w of aut،rity to remove Mr. Moua from his vehicle and instructed him to stand behind the vehicle. . . . [The officer] did not tell Mr. Moua that the purpose for the traffic stop had concluded or even ask if he could question him about other topics. . . . No written citation or warning was issued, nor was there any indication from [the officer] that the traffic stop had ended.
The court also indicated that there is an “inherent power differential between law enforcement and citizens.” This is especially so when the citizen is on probation, as Mr. Moua was. All in all, the court determined that “a reasonable person w، is being questioned about their probation status on the side of a dark road in the middle of the night after being pulled out of their vehicle by a uniformed police officer [would not] feel free to turn his back on the officer, walk back to their car, and drive away.”
The State is seeking further review in this case. The Supreme Court of North Carolina has issued a temporary stay and is considering the State’s Pe،ion for Discretionary Review. If the Supreme Court weighs in, I’ll write about that opinion here on the blog.
Advice for officers. Moua involved some unusual facts, including the officer ordering the driver out of the car right before the exchange in question, the early morning ،ur, and the fact that the driver was on probation. So even if it survives, I don’t think it eviscerates the general rule that the return of the driver’s do،ents terminates a stop. However, in a world where most traffic stops are recorded and it is ever-easier for judges to imagine themselves in the driver’s situation, I suspect that courts may find more exceptions to the general rule, often based on the idiosyncrasies of a given situation. To ensure the admissibility of evidence found during roadside searches, officers may wish to consider explicitly signaling the end of a stop by saying so،ing like “Here’s your license and registration. You’re free to go. But if you’re willing, I’d like to ask you a few other questions.”