By Richard J. Ashton, Chief of Police (Retired), Frederick, Maryland; and Grant/Technical Management Manager, IACP
ne of the most frequent and more hazardous activities that police officers initiate is the traffic stop. One of the reasons that it is fraught with so much danger is that while officers stop motorists for specific violations, such as running a red light or speeding, they are unaware—at least initially—if there are other more serious reasons a driver does not wish to be detained, like the driver’s being sought for a recent serious crime.
Take, for example, the trooper who stopped a beat-up 1977 Mercury Grand Marquis with no license plate. During the ensuing interview, the driver was unable to produce either proof of insurance or a bill of sale. When the trooper observed a bulge under the driver’s jacket, the driver said: “I have a gun.” Indeed, the driver had on his person a loaded pistol, an ammunition clip, and a knife. The trooper arrested him and initiated computer checks to ascertain whether the driver had a warrant for his arrest or had any prior criminal history, as well as ownership and other information both on the pistol and on the vehicle; all were negative at that time. The date was April 19, 1995. The time was a mere 78 minutes after the 9:02 a.m. bombing of the Alfred P. Murrah Federal Building in Oklahoma City in which 168 innocent individuals lost their lives. The vehicle’s driver was Timothy J. McVeigh. The trooper was Oklahoma Highway Patrol Second/Lieutenant Charles J. Hanger who—by doing on that day what he did every day—apprehended one of the individuals who had committed the deadliest act of domestic terrorism in U.S. history and still was in an Oklahoma jail—two days later—when he was identified as the subject of the nationwide manhunt.1
Another reason why the traffic stop is so perilous is the sheer volume of stops that officers make during their careers. The fact that many officers undertake—without incident—multiple stops during each tour of duty erodes, over time, the vigilance that training academy instructors, field training officers, and supervisors all have strived to instill. The average age of officers killed both accidentally and feloniously between 2002 and 2011 was 38 years old.2 The average length of service during that decade for officers killed feloniously was 11 years and for those killed accidentally, 10 years.3 Sixty-two officers were killed feloniously during a “traffic violation stop” in a decade (2002-2011).4 Hanger, now the Sheriff of Noble County, Oklahoma, aptly points out: “No traffic stop is routine, but they’re all important!”5
Enforce against Violations That Compromise Safety
Today’s law enforcement agencies are capable of harnessing the tremendous amounts of data that their officers generate daily in order to pinpoint and then target specific incidents when and where they intersect. By focusing on these identified clusters of dangerous driving behaviors, agencies can allocate their resources to reducing crashes and the fatalities and serious injuries they produce. Officers can concentrate on making a genuine difference by pursuing those violations that cause collisions, deaths, and serious injuries rather than “shooting fish in a barrel” or writing citations at “fishing holes”—those locations where violations are plentiful, but lack any nexus to those places where focused enforcement translates into positive results. The issuance of citations where quantity trumps quality generates public disrespect for the officers who write them, as well as for the agencies that tolerate the practice, and does little to ensure safety.
Select Safe Positions
The oft-repeated realtors’ phrase “location, location, location” provides sound advice to officers intending to initiate a traffic stop. While officers are not always able to select the locations at which traffic stops and other roadside contacts occur, they nevertheless should strive, whenever possible, to make them in driveways, on off-ramps, in parking lots, in pull-offs,6 in rest stops or on service drives, in well-lit areas, or on wide shoulders. They should avoid blind curves, hillcrests, and other spots where visibility is impaired; medians; narrow or nonexistent shoulders; places where violators choose to stop; positions against Jersey walls or noise barriers; or reduced berms. Officers never should walk or stand between vehicles, even though a violator’s performance on standardized field sobriety tests may not be recorded on an in-car camera.
Whether officers approach violators from the left- or the right-hand side of the violator’s vehicle depends upon the existing situation, as well as upon the policies of officers’ agencies. Both offer advantages and disadvantages as summarized below:
- The left-hand side approach is the one favored by most officers.7 The IACP Highway Safety Committee’s (HSC’s) Law Enforcement Stops and Safety Subcommittee (LESSS) extensively examined an alternative to the decades’ old practice of parking cruisers diagonally on the shoulder behind the violator’s vehicle. The Arizona Crown Victoria Police Interceptor Blue Ribbon Panel, the Ford Motor Company, and the New York State Police (NYSP) conducted numerous computer simulations, Ford then undertook a verifying crash test, and the NYSP adopted this approach and even confirmed its viability during an August 8, 2004, traffic stop when a Jeep Grand Cherokee traveling at approximately 70 miles per hour struck a cruiser parked in the following manner.8 Ford and the NYSP both recommended that on right shoulder traffic stops where the officer intends to make a driver’s side approach, the cruiser be parked parallel to the roadway at least 15 feet (or one car length) behind the stopped vehicle with a 50 percent overlap (offset left) between the vehicles and with the cruiser’s front wheels turned fully to the right and the parking brake set. Ford’s testing concluded that this orientation possesses the lowest probability of a pedestrian officer’s involvement in a crash, to which the NYSP trooper who survived the aforementioned August 8, 2004, traffic stop can attest. However, it was undertaken with several noteworthy provisos: only rear-wheel-drive vehicles traveling on dry and level road surfaces were used.9
- The right-hand side approach allows officers to retain the element of surprise, since most violators expect officers to approach on the driver’s side of the vehicle; isolates officers from traffic; provides officers with a better view of oncoming traffic; allows them to more clearly observe the passenger compartment, console, and glove box; generally provides a better view of the driver and the driver’s actions; and provides more cover, if needed. However, the right-hand side approach should not be employed where the vehicle stops immediately adjacent to barriers, guardrails, piled snow, walls, and similar locations where officers’ movements are severely constrained.
In the event a traffic stop or other roadside contact is made on the shoulder, officers should exert every effort to move to a safer location as soon as reasonable. This is especially important in terms of the longstanding practice of officers’ completing paperwork at the scene of an incident.
Use Court Rulings to Enhance Officer Safety
Courts have acknowledged the dangers inherent in traffic stops. For example, the U.S. Supreme Court observed: “It would seem that the possibility of a violent encounter stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.”10 Moreover, courts have provided law enforcement officers with legal tactics that expand their safety net, the Court’s stressing: “The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.”11 Significantly, during lawful traffic stops, officers may order—without reasonable suspicion or probable cause—both drivers and passengers out of vehicles.12
On the basis of reasonable suspicion, officers may frisk drivers and passengers whom they believe may be armed and dangerous13 and may search those areas of the passenger compartment of an automobile where a weapon may be placed or hidden and where officers believe a suspect is dangerous and may gain immediate control of a weapon.14
Officers’ knowledge of judicial decisions allows officers to manage traffic stops and other roadside contacts and thereby to increase their safety.
Diligently Pursue the Typical Traffic Stop and Recognize Its Limitations
Traffic stops often are viewed as the gateway to solving more serious offenses, seizing stolen goods and contraband, and arresting violent criminals. In order for officers to successfully employ criminal interdiction during the typical traffic stop, they need to be aware of—and adhere to—pertinent legal requirements. Simply put, when an officer initiates a typical traffic stop, say, for exceeding the posted speed limit, the officer must diligently pursue those activities associated with the original traffic stop to ensure its legality, in the event it develops into a more significant incident, as depicted in figure 1. 15 The following guidance is offered to shed additional light on ensuring the lawfulness of the typical traffic stop.
- The officer making the typical traffic stop may initiate a computer check for outstanding warrants, investigate the driver’s sobriety and license status, establish that the vehicle is properly registered and has not been reported stolen, issue a traffic citation or warning,16 request the identification of passengers,17 and inquire into matters unrelated to the justification for the original traffic stop.18 However, “[i]f a police officer wants to detain a driver beyond the scope of a routine traffic stop, . . . he must possess a justification for doing so other than the initial traffic violation that prompted the stop in the first place. . . .”19
- Courts evaluate the legality of the original traffic stop in terms of (1) whether or not it is based either on reasonable suspicion or on probable cause that a traffic violation occurred and, then, (2) whether or not the officer diligently pursued the original purpose.20 “[T]he scope of a police officer’s actions during a traffic stop still is relevant to the reasonableness analysis under the Fourth Amendment . . . because, during a stop, a police officer must act reasonably, that is, he must diligently pursue the investigation of the justification for the stop.”21 “In assessing whether a detention is too long in duration to be justified as an investigative stop, we [the U.S. Supreme Court] consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”22
- United States v. Farrior succinctly describes the traffic stop:
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” U.S. Const. Amend. IV. Following the Supreme Court’s decision in Terry v. Ohio, “the law has become well-established that during a routine traffic stop, an officer may request a driver’s license and vehicle registration, run a computer check, and issue a citation” without running afoul of the Fourth Amendment. Any further investigative detention, however, “is beyond the scope of the Terry stop and therefore illegal unless the officer has a reasonable suspicion of a serious crime” or the individual consents to the further detention. The Supreme Court has held that a drug-dog sniff is not a “search” as that term is used in the Fourth Amendment. In order to perform the sniff, however, “there must be a seizure of the vehicle and, therefore, the person, requiring either consent to be detained or reasonable suspicion.”23 (citations omitted)
- There is nothing per se either illegal or improper about making a valid traffic stop for one violation in order to investigate another,24 unless it is based on criteria other than the driver’s behavior, that is, solely on that driver’s disability, ethnicity, national origin, race, religion, or sexual orientation.
If during the diligent pursuit of the original traffic stop independent reasonable suspicion or probable cause develops, the driver’s seizure may be continued. At the same time, if the driver consents to remain for a longer period of time after the completion of the original traffic stop, the officer can continue to interact with the driver. However, some guidance is warranted:
- In the event the officer who initiated the original traffic stop— or
example, for speeding—determines during the course of that traffic stop that an outstanding arrest warrant exists for the driver, that the driver exhibits behavior indicating alcohol impairment, that a drugtrained canine “alerts” to illegal narcotics in the vehicle, or that the officer observes a firearm in the glove box, the original traffic stop ends, a second stop to confirm or dispel the new reasonable suspicion that developed during the original traffic stop is initiated, or a custodial arrest based on probable cause is made. In terms of drug-dog sniffs, however, officers are admonished to become familiar with judicial rulings in their jurisdictions. For example, does a drug-dog sniff need to occur before the diligently-pursued original traffic stop is complete?25 Can a Terry stop for a drug violation—as opposed to a typical traffic stop for a traffic infraction—await the arrival of a drug-trained canine?
- The key to ensuring the legality of converting the original traffic stop into a consensual encounter is making certain that the break between the two is as clear and distinct as possible. For example, securing the driver’s consent to continue the stop—regardless how voluntary the officer believes that consent was—still will give rise to serious prosecutorial difficulty, if the officer, intentionally or not, retains the operator’s driver’s license and/or the vehicle’s registration card or fails to provide beforehand the driver with a copy of the traffic citation or warning.26 The constitutional standard for determining a seizure is, on the basis of the totality-of-the-circumstances, “whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.”27 Even though there is no constitutional requirement28 to advise the driver that the driver is “free to go” in order to ensure the voluntariness of a consensual search,29 the officer who so notifies the driver—prior to the latter’s agreeing to the requested search or continued detention—certainly bolsters the officer’s claim that the consent was voluntarily given. Consent, like other aspects of traffic stops, often will survive drivers’ challenges on the basis of officers’ ability to articulate in detail what actually transpired.
Traffic stops are at the foundation of reducing motor vehicle crashes and the deaths and serious injuries they cause, as well as of discovering more serious crimes. For traffic stops to be both meaningful and acceptable, they need to be conducted safely, effectively, and legally. Hopefully, the information presented in this column will benefit the officers who make traffic stops and the agencies by which they are employed. ♦
1Bryan Painter, “Ex-trooper Charlie Hanger Shares Story about Day He Arrested Timothy McVeigh,” NewsOK.com (August 29, 2009), bombing.newsok.com/article/3396671 (accessed April 22, 2013); “Testimony of Oklahoma State Trooper Charles J. Hanger Concerning His Arrest of Timothy McVeigh on April 19, 1995” law2.umkc.edu/faculty/projects/ftrials/mcveigh/mcveigharrest.html (accessed April 22, 2013).
2U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services, Uniform Crime Reports, Law Enforcement Officers Killed and Assaulted [LEOKA] 2011, tables 6 and 57, www.fbi.gov/about-us/cjis/ucr/leoka/2011/tables/table-6 and www.fbi.gov/about-us/cjis/ucr/leoka/2011/tables/table-57 (accessed April 25, 2013).
3LEOKA 2011, table 7, www.fbi.gov/about-us/cjis/ucr/leoka/2011/tables/table-7 (accessed April 23, 2013), and table 57.
4Ibid., table 19, www.fbi.gov/about-us/cjis/ucr/leoka/2011/tables/table-19 (accessed April 23, 2013).
5International Association of Chiefs of Police, Saving Lives . . . One Stop At A Time(2008).
6Emergency pull-offs, pullouts, turnouts, or enforcement platforms are areas that are away from the traffic flow, that should accommodate at least two emergency vehicles, that are spaced periodically along controlled access highways lacking continuous shoulders wide enough for enforcement and other activities, and that allow officers to more safely investigate crashes, undertake enforcement actions, and assist motorists.
7LESSS, “Policy and Procedure,” in Staff Study 2004, 26-28, www.theiacp.org/LinkClick.aspx?fileticket=ez0WIkRWq2A%3d&tabid=379 (accessed May 29, 2013); New York State Police Patrol Vehicle Protocol and Safety Committee, Safe Stops Protocols: Field Guide (2004).
8LESSS, “Vehicle Positioning and Officer Approach,” in 2006 Staff Report, 43–44, www.theiacp.org/Portals/0/pdfs/LESS/LESSS_2006StaffReport.pdf (accessed May 29, 2013).
10Maryland v. Wilson, 519 U.S. 408, 414 (1997).
11Id., quoting Michigan v. Summers, 452 U. S. 692, 702-03 (1981).
12Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977); Wilson, 519 U.S., at 415; Brendlin v. California,127 S. Ct. 2400, 2406-07 (2007); Arizona v. Johnson, 129 S. Ct. 781, 786-7 (2009).
13Mimms, 434 U.S., at 112; Johnson, 129 S. Ct., at 787.
14Michigan v. Long, 463 U.S. 1032, 1049 (1983).
15The U.S. Supreme Court uses—in United States v. Place, 462 U.S. 696, 709 (1983) and United States v. Sharpe, 470 U.S. 675, 686-88 (1985)—the terms “diligently pursue,” “acted diligently,” and “diligently pursued” to refer to the manner in which officers undertake investigative detentions.
16Pryor v. State, 122 Md. App. 671, 682, cert. denied, 352 Md. 312 (1998); United States v. Guijon-Ortiz, 660 F.3d 757, 764-65 (4th Cir. 2011).
17United States v. Soriano-Jarquin, 492 F.3d 495, 500 (4th Cir. 2007).
18Johnson, 129 S. Ct., at 788.
19United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008).
20Terry v. Ohio, 392 U.S. 1, 20 (1968).
21Guijon-Ortiz, 660 F.3d, at 766, quoting United States v. Digiovanni, 650 F.3d 498, 509 (4th Cir. 2011).
22 Sharpe, 470 U.S. at 686 (1985).
23United States v. Farrior,535 F.3d 210, 217 (4th Cir. 2008).
24Whren v. United States, 517 U.S. 806, 809 (1996); Devenpeck v. Alford, 543 U.S. 146, 153 (2004).
25 Carter v. State, 143 Md. App. 670, 692-93 (2002); State v. Ofori, 170 Md. App. 211, 235, 251, 252, 254, cert. denied, 396 Md. 13 (2006); United States v. Alexander, 448 F.3d 1014, 1017 (8th Cir. 2006), cert. denied, 549 U.S. 1118 (2007).
26Ferris v. State, 355 Md. 356, 377 (1999).
27Florida v. Bostick, 501 U.S. 429, 439 (1991).
28Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
29Ohio v. Robinette, 519 U.S. 33, 35 (1996).