Officer Questioning in a Traffic Stop

Here’s an interesting (and to my mind troubling) recent example of how few limits the Fourth Amendment presently imposes on officer questioning during traffic stops, at least as presently construed by lower courts.

In United States v. Chaney, decided by the First Circuit last week, an officer pulled over a car because it had a headlight out. The officer asked the driver for ID, and then he asked the passenger for ID (for officer safety reasons, according to the officer). When the passenger said he didn’t have ID, the officer ended up spending about five minutes querying the passenger about his identity and whereabouts. As I read the opinion, the officer did not have reasonable suspicion for the first two minutes of the questioning, but then developed reasonable suspicion to thin the passenger was involved in some sort of criminal activity based on the evasiveness of his answers. The officer went back to his squad car and spent another five minutes trying to get a positive ID on the passenger. When he couldn’t get a positive ID on the passenger, he asked the driver to get out of the car and asked the driver more questions about the identity of the passenger. After a few more minutes, the officer shined a flashlight on the passenger and saw a bulge in his jacket. That eventually led to the discovery of a gun in the passenger’s jacket and charges against the passenger, Chaney, for being a felon in possession of a gun.

Held by the First Circuit: This was all constitutionally permitted. First, the Supreme Court has said that the police can ask questions unrelated to the purpose of a stop so long as the questioning does not “measurably” extend the duration of stop. In this case, the officer did actually extend the stop for a few minutes to ask the passenger questions, but the First Circuit concludes that this was “de minimus and did not unreasonably extend the duration of the traffic stop,” in part because the officer asked the questions for officer safety reasons. And once the passenger gave strange answers, that created reasonable suspicion for the officer to detain the car for more time to investigate if the passenger was involved in criminal activity. Thus the delayed stop was okay, and the officer did not violate the Fourth Amendment in delaying the group long enough to shine the flashlight and then have cause to frisk the passenger for the gun.

There are lots of cases on the books that are consistent with this decision, but it still makes me uncomfortable. In particular, the Supreme Court has said that questioning unrelated to the stop is okay if it does not measurably extend the stop. Several courts have held that very brief questioning of the driver is a de minimis extension that is permitted. But here the questioning measurably extended the stop by a bit longer, about two minutes before there was any reasonable suspicion, which is enough time to ask a lot of questions. The First Circuit concluded that this still was just a de minimis extension of the stop, but it seems to me that two minutes gives the police a tremendous amount of power: It means that the traffic stop that is so easily permitted by the Fourth Amendment gives the police a few minutes to question anyone in the car on whatever topic the officers like, even absent any reasonable suspicion or identifiable threat to officer safety, in a situation in which those in the car are not free to leave. In other words, the only questioning that is not permitted is questioning that goes on for a pretty long time in the complete absence of reasonable suspicion. But how likely is it that an officer is going to subject a passenger to extended questioning for a long time absent any reasonable suspicion?

The tricky part about this problem is how to devise a contrary rule. You could say that the police can’t ask the unrelated questions at all during a traffic stop absent some suspicion, although the Supreme Court has rejected that rule. You could say that the police can’t ask unrelated questions that extend the length of the stop at all, although that gets into difficult questions of exactly how you measure the length of a question or the proper length of a stop. You could say that the officer can ask the driver brief questions unrelated to stop but can’t pose the same questions to a passenger, although it’s not clear why that line would be justified. That leaves you with the rule suggested in Chaney and applied by some other circuits, that a “brief” extension of the stop is okay to ask those unrelated questions, which gets into how brief is brief enough. There aren’t a lot of easy answers here, but I worry that cases like Chaney just go too far.

UPDATE: I fiddled with the post a bit to improve accuracy.

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