Fordham Urban Law Journal Volume 30 | Number 6 Article 3 2003 The copS e of Police Questioning During a Routine Traffict S op: Do Questions Outside the Scope of the Original Justification for the Stop Create Impermissible Seizures If They Do Not Prolong the Stop? Bill Lawrence Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Constitutional Law Commons Recommended Citation Bill Lawrence, The Scope of Police Questioning During a Routine Traffict S op: Do Questions Outside the Scope of the Original Justification for the Stop Create Impermissible Seizures If They Do Not Prolong the Stop? , 30 Fordham Urb. L.J. 1919 (2003). Available at: https://ir.lawnet.fordham.edu/ulj/vol30/iss6/3 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. The copS e of Police Questioning During a Routine Traffict S op: Do Questions Outside the Scope of the Original Justification for the Stop Create Impermissible Seizures If They Do Not Prolong the Stop? Cover Page Footnote J.D. candidate, Fordham University School of Law, 2004; B.A., Communication, Villanova University, 2000. I would like to thank my family and friends for their love and support. I also sincerely thank Professor Daniel Richman for his valuable insights. This article is available in Fordham Urban Law Journal: https://ir.lawnet.fordham.edu/ulj/vol30/iss6/3 THE SCOPE OF POLICE QUESTIONING DURING A ROUTINE TRAFFIC STOP: DO QUESTIONS OUTSIDE THE SCOPE OF THE ORIGINAL JUSTIFICATION FOR THE STOP CREATE IMPERMISSIBLE SEIZURES IF THEY DO NOT PROLONG THE STOP? Bill Lawrence* INTRODUCTION A police officer makes a routine traffic stop of a vehicle with a cracked windshield.' He questions the driver about the windshield and asks for the driver's license and registration.2 While the officer checks the documentation, he asks the driver whether he has any illegal narcotics in the car.' The driver says 'no,' and the officer asks for consent to search the vehicle.4 After the driver consents, the officer discovers cocaine on the driver's side of the car.5 In the prosecution for the possession of cocaine, the defendant argues that his consent was tainted by the officer's question about illegal narcotics because it was outside the scope of the original justification for the stop-the cracked windshield.6 The defendant claims that the officer violated his Fourth Amendment rights7 be- cause the question about illegal narcotics gave rise to an unreason- able seizure. 8 A court agrees and rules that the consent was invalid and that the evidence must be suppressed.9 * J.D. candidate, Fordham University School of Law, 2004; B.A., Communica- tion, Villanova University, 2000. I would like to thank my family and friends for their love and support. I also sincerely thank Professor Daniel Richman for his valuable insights. 1. This fact pattern is based on the facts from United States v. Childs, 277 F.3d 947 (7th Cir. 2002). 2. See Childs, 277 F.3d at 949-50. 3. Id. 4. Id. 5. Id. 6. Id. 7. U.S. CONST. amend. IV. 8. See Childs, 277 F.3d at 947-50. 9. Id. 1919 1920 FORDHAM URBAN LAW JOURNAL [Vol. XXX The situation described above occurs frequently, with many courts ruling similarly to this one. 10 Accordingly, the issue this Note addresses is whether a police officer, during a routine traffic stop, violates a person's Fourth Amendment rights when the of- ficer's questions stray from the original reason for the stop. Reso- against the state's interest lution of the issue pits privacy concerns 12 in effective law enforcement. 1 With circuits split over the issue, and the Supreme Court not yet plainly ruling on it, 3 this Note aims to provide a narrow solution to the problem. Part I of this Note explains the Fourth Amendment reasonable- ness standard and discusses the line of Supreme Court cases from Terry v. Ohio14 to Florida v. Bostick 5 that deal with the permissible scope of questioning during a stop. Part II introduces the split be- tween the Fifth and Seventh Circuits and the Eighth, Ninth, and, Tenth Circuits, highlighting the reasoning of the Seventh Circuit in United States v. Childs. 6 Further, Part II discusses the balance be- tween privacy concerns and effective law enforcement and shows that the arguments are important because the Supreme Court has not yet directly ruled on the issue." Part III of this Note proposes that courts consider the narrow holding in Childs. This Note con- cludes that in the routine traffic stop situation, effective police work outweighs the minimal privacy interest. 10. See, e.g., United States v. Murillo, 255 F.3d 1169 (9th Cir. 2001); United States v. Holt, 264 F.3d 1215 (10th Cir. 2001); United States v. Ramos, 42 F.3d 1160 (8th Cir. 1994); United States v. Rodriguez-Diaz, 161 F. Supp. 2d 627 (D. Md. 2001); United States v. McSwain, 29 F.3d 558 (D. Utah 1994). See generally U.S. Dep't of Homeland Security, THE QUARTERLY REVIEW ARTICLES 4 (describing an in-depth hypothetical situation that closely mirrors the introductory situation in an article about Terry stops for law enforcement officials), availableat http://www.fletc.gov/legal/articles.pdf; Ron- ald Menaker, Sloppy Police Work Undermines Drug Prosecution, CHICAGO DAILY BULLETIN, Jan. 8, 2003, at 9 (describing case where officers exceeded Terry scope limitation and transformed a valid stop into an illegal arrest). 11. See, e.g., Brown v. Texas, 443 U.S. 47, 52 (1979) (analyzing the balance be- tween privacy concerns and the public interest). See generally Robert Whorf, Consent Searches Following Routine Traffic Stops: The Troubled Jurisprudenceof a Doomed Drug Interdiction Technique, 28 OHIo N.U. L. REV. 1, 16 (2001) (discussing privacy concerns). 12. The Fifth and Seventh Circuits have taken a different position on the issue than the Eighth, Ninth, and Tenth Circuits. See infra Part II. 13. See Ohio v. Robinette, 519 U.S. 33, 36 (1996). 14. 392 U.S. 1 (1968). 15. 501 U.S. 429 (1991). 16. 277 F.3d 947 (7th Cir. 2002). 17. See Robinette, 519 U.S. at 36. 2003] QUESTIONING DURING TRAFFIC STOPS 1921 1. THE FOURTH AMENDMENT REASONABLENESS STANDARD The Fourth Amendment provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unrea- sonable searches and seizures, shall not be violated."'1 8 To trigger the protection of the amendment, an officer must commit an un- reasonable search or seizure. 19 Problems arise, however, in deter- mining whether an unreasonable search or seizure has occurred. 20 This Note centers on the seizure component within the context of a routine traffic stop. Put simply, a seizure occurs if a police officer causes a reasona- ble person to feel as though he cannot walk away or terminate the encounter. 21 Within this definition, a routine traffic stop of a mo- tor vehicle constitutes a limited seizure and may trigger the Terry doctrine.22 Under the Terry doctrine, an officer may stop a suspect and detain her briefly to investigate reasonable suspicion of crimi- nal activity.23 Because the Terry doctrine may apply to motor vehi- cle stops as well, if, as in the introductory situation, a driver commits a traffic violation, a police officer may stop the driver for as long as it takes to write a ticket for the violation.24 Moreover, the Terry doctrine provides that in determining whether a search or seizure was unreasonable, courts consider whether the original rea- son for the officer's actions was justifiable and whether it was rea- 25 sonably related in scope to the original circumstances. 18. U.S. CONST. amend. IV. 19. See Terry, 392 U.S. at 9. 20. See id. 21. See United States v. Mendenhall, 446 U.S. 544, 554 (1980); see also Terry, 392 U.S. at 16 ("It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person."). 22. See United States v. Holt, 264 F.3d 1215, 1217 (10th Cir. 2001) ("[T]he analyti- cal framework set forth in Terry v. Ohio applies to traffic stops." (citation omitted)). 23. Terry, 392 U.S. at 19-24. 24. United States v. Daniel, 804 F. Supp. 1330, 1334 (D. Nev. 1992) (holding that a traffic stop constitutes a limited seizure and falls within the "purview" of Terry). In fact, many vehicle stops are performed on the basis of probable cause that a traffic violation has occurred. See, e.g., Whren v. United States, 517 U.S. 806, 808-09 (1996) (involving probable cause of traffic violation when suspect failed to use turning sig- nal); United States v. Childs, 277 F.3d 947, 949 (7th Cir. 2002) (finding probable cause of traffic violation of driving with a cracked windshield); United States v. Murillo, 255 F.3d 1169, 1172 (9th Cir. 2001) (finding probable cause for tailgating violation); United States v. Ramos, 42 F.3d 1160, 1161 (8th Cir. 1994) (finding probable cause for traffic violation based on seat belt violation). Although probable cause of a traffic violation supports most traffic stops, courts generally analyze the stops under Terry. See Holt, 264 F.3d at 1217 (applying Terry framework to traffic stop). 25. Terry, 392 U.S.