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ALABAMA CRIMINAL DEFENSE LAWYERS ASSOCIATION “4 – Corners Seminar”. TRAFFIC STOPS The Stop, Detention, Investigation, and Arrest of a Motorist and/or Passenger. TERRY v. Ohio. The starting point for any traffic stop inquiry is analysis of Terry v. Ohio , 392 U.S. 1 (1968)

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alabama criminal defense lawyers association 4 corners seminar



The Stop, Detention, Investigation, and Arrest of a Motorist and/or Passenger

terry v ohio
TERRY v. Ohio
  • The starting point for any traffic stop inquiry is analysis of Terry v. Ohio, 392 U.S. 1 (1968)
  • The Terry rule: a police seizure does not need to result in custodial arrest to implicate the 4th Amendment; any police seizure must be “reasonable” under Constitutional analysis
  • Terry created two levels for a lawful police seizure:
  • probable cause to arrest
  • reasonable suspicion to stop & question
alabama statutory authority
Alabama Statutory Authority
  • Code of Alabama, 1975, section 15-5-30 authorizes a law enforcement officer to stop and question any person the officer “reasonably suspects” is in the process of committing a crime.
  • Code of Alabama, 1975, section 15-5-31 authorizes a law enforcement officer to search for a weapon if the officer reasonably believes the person is armed.

[This Code section does not authorize the routine, suspicion less “pat down” or frisk of every person the police encounter – what is commonly termed “pat-down for ‘officer safety’”.]

was the traffic stop a seizure
Was the Traffic Stop a Seizure?
  • The starting point to any police-citizen encounter is to determine if a “seizure” occurred.
  • A “seizure” takes place only when the a reasonable person would be believe that he was not free to leave.
  • Any “show of force” by the police is construed to be a seizure.
    • Use of blue lights and siren
    • Use of voice command or hand signal
objective test
Objective Test
  • The leading Supreme Court case interpreting traffic stops is Whren v. U.S. (1996)
  • In Whren, the U.S. Supreme Court rejected the ‘subjective’ standard and applied the objective test: a traffic stop is valid if the officer reasonably believes a violation has taken place, and the officer’s subjective intent is irrelevant.
  • Whren is an extension of the Terry doctrine.
mistaken opinion of law does not authorize valid traffic stop
Mistaken Opinion of Law Does Not Authorize Valid Traffic Stop
  • United States v. Chanthasouxat, 342 F. 3d 1271 (11th Cir. 2003): Police officer’s mistaken impression of law cannot justify a lawful stop of a vehicle.
    • Officer’s mistaken belief that an inside mounted rearview mirror was required to operate a vehicle held invalid for a lawful traffic stop.
  • Under Alabama law, police officers are presumed to know the law that they are enforcing – no deference is afforded to the officer’s mistaken belief of law.
anonymous tips and anonymous informants in general
Anonymous Tips and Anonymous Informants – in General
  • Alabama v. White (U.S. 1990): police officer’s corroboration of the details of the anonymous tip provided sufficient reasonable suspicion to justify a Terry stop; subsequent consent to search valid.
  • Florida v. J.L.(U.S. 2000): An anonymous tip that a person is carrying a gun, without any further information provided, is insufficient to justify a stop and frisk.
  • W.D.H. v. State (Ala. Cr. App. 2008): Police stop and frisk of a person located in area of shooting and drug sales, without any indication that person had committed an offense, insufficient that defendant was engaged in criminal activity. [See extensive opinion by Judge Welch on the law of ‘stop and frisk’]
anonymous tips the dui exception
Anonymous Tips – The DUI Exception
  • Cottrell v. State (Ala. Cr. App.2007): In a case of first impression, the Court of Criminal Appeals held an anonymous tip of DUI driver sufficiently reliable under Terry for traffic stop without independent corroboration by the police.
  • Virginia v. Harris – cert. denied Oct. 20, 2009: U.S. Supreme Court failed to grant cert to state’s petition to reverse Virginia’s decision to suppress the traffic stop made of suspected DUI driver based on anonymous tip.
  • Note: According to C.J. Robert’s dissent, the majority of states have adopted an “anonymous tip-DUI exception” while a minority of states have refused to create such exception.
vehicle stop anonymous tips
Vehicle Stop – Anonymous Tips
  • Ex parte Aaron (Ala. 2005): an anonymous tip, without intervening police investigation to determine the reliability or accuracy of information, held insufficient to support a Terry stop.
  • Ex parte Shaver (Ala. 2004) – same facts - extensive opinion by Justice Lyons on law of anonymous tips and authority to conduct Terry stop.
  • State v. Strickland (Ala. Cr. App.2005): telephone tip, identity confirmed, police corroborated information prior to stop: traffic stop held valid under Terry principles.
vehicle stop suspected criminal activity
Vehicle Stop- Suspected Criminal Activity
  • State v. Green (Ala. Cr. App.2008): where robbery took place minutes before the traffic stop, and distance from robbery location to stop was two to three miles, and the police dispatch was generally consistent with vehicle stopped, the Court held “the facts were minimally sufficient” to justify stop. [See extensive dissenting opinion by Judge Welch.]
police questioning of a stopped car
Police Questioning of a Stopped Car
  • Ex parte Betterton (Ala. 1988): Police officer’s approach to already parked car does not require reasonable suspicion or probable cause, but without reasonable suspicion, cannot order persons out of the car.
  • State v. Brodereck(Ala. Cr. App. 1989): Lawfully parked car not subject to investigation without particularized basis to suspect criminal activity.
high crime area stops
“High Crime” Area Stops
  • Gaskins v. State (Ala. Cr. App. 1990): Being in a “high crime area” insufficient basis by itself to justify Terry stop; must have particularized basis to suspect criminal activity.
  • Sibron v. New York (U.S. 1968): Deliberate furtive actions, flight from law enforcement, and specific knowledge on part of law enforcement are proper factors to be considered in evaluating lawfulness of stop.
arrest for dui on private property
Arrest for DUI on Private Property
  • Hinson v. State (Ala. Cr. App. 2008): Aff’d by memorandum opinion; dissent by Judge Wise:

Judge Wise noted that no previous Alabama case had ever held a person could be convicted of DUI while operating a vehicle on their own private property and held such action raised “significant Fourth Amendment concerns.”

reasonable suspicion to stop specific criminal offense or violation held valid
Reasonable Suspicion to Stop – Specific Criminal Offense or Violation- Held Valid:
  • No tag displayed and no operable tag light
  • No headlights at night
  • Improper lane usage
  • Speeding; running stop sign
  • Erratic vehicle operation
  • Failure to stop for blue lights
  • Information provided by another officer
  • Radio report – one officer to second officer
  • Collective knowledge
  • High speed operation
  • Avoid stopping/turning around at roadblock
  • Parked in roadway
detaining motorists length and scope of detention
Detaining Motorists – Length and Scope of Detention
  • State v. Hale (Ala. Cr. App. 2008): Once the traffic ticket or warning is issued and documents returned to driver, the motorist is released from detention. Officer’s request to search is a ‘consent to search’ and motorist’s agreement to search is examined under the “reasonable person – free to leave” standard.
  • Length of detention:
    • 28 minutes to summon drug dog, after motorist exhibited high degree of nervous behavior held valid: State v. McPherson (Ala. Cr. App. 2004)
    • Prolonged detention after motorist signs UTTC based on hearsay from second officer held invalid: Smith v. State (Ala. Cr. App. 2006)
federal cases lawfulness of traffic stop detention and scope
Federal Cases – Lawfulness of Traffic Stop; Detention and Scope
  • U.S. v. $511, 780 (M.D. Ala. 1994): Implausible story by driver and passenger concerning route and purpose of trip; inconsistent statements, etc. held sufficient to create probable cause to search.
  • Same indicators: Improbable story or inconsistent statements; false or deceptive information provided to officer; all held to create situation to allow detention by officer, to include use of drug dog:
    • U.S. v. Gonzalez (M.D. Ala. 2008)
    • U.S. v. Hernandez (M.D. Ala. 2005)
    • U.S. v. Ramirez (11th Cir. 2007)
    • U.S. v. Viezca(M.D. Ala. 2008)
u s supreme court cases detention of motorist control over motorist and passengers
U.S. Supreme Court Cases: Detention of Motorist; Control over Motorist and Passengers
  • Maryland v. Wilson (1997): A police officer may without probable cause order passenger(s) out of lawfully stopped vehicle pending completion of traffic stop.
  • Brendlin v. California (2007): When a police officer makes a traffic stop, the passenger is seized as well as the driver. The passenger is entitled to challenge the stop under 4th Amendment grounds.
  • Arizona v. Johnson (2009): Officer’s pat-down of a passenger for weapon justified under Terry principles; if legal basis existed to stop and pat-down driver, same principles extend to passenger.
  • Arizona v. Gant (2009): Search “incident to arrest” exception greatly limited; search of passenger compartment of vehicle authorized only if: 1) arrestee is within reaching distance of passenger compartment (Chimel ‘wing-span’ test) or 2) reasonable to believe vehicle contains evidence of the offense.
  • Note: Gantt decision greatly limits and restricts New York v. Belton which had upheld police searches of passenger compartments as “incident to lawful arrest.”
  • Michigan Dept. State Police v. Sitz(1990): Police roadblocks not invalid under the U.S. Constitution if stop is brief and minimal detention; all motorists are stopped (or some other neutral method); and conducted under established guidelines to minimize officer discretion.
  • Ex parte Jackson (Ala. 2004) – Adopting Cains standard: Roadblock conducted consistent with neutral operational plan, under supervision of police supervisors, with primary purpose to enforce traffic law, held valid. Subsequent seizure of controlled substances valid.
  • Cains v. State (Ala. Cr. App. 1989): Cains is the foundational case to determine lawfulness of a police roadblock under Alabama law. Police roadblocks are not per se invalid, but must be conducted under neutral and objective standards, with the primary purpose being traffic enforcement, and only minimally intrusive to the motorist.
  • Hagood v. Town of Town Creek (Ala. Cr. App 1993): Where police roadblock was used for general law enforcement, with no written guidelines or restrictions on officer’s procedures, and without any safety measures, such police roadblock violated the Cainsstandards and 4th Amendment.
  • State v. White (Ala. Cr. App. 2009): Defendant’s turning around at driver license checkpoint, then heading in opposite direction, provided officer with reasonable suspicion to conduct investigatory stop.
end of presentation