• Traffic Stops and Prolonged Detentions
• Criminal History/Warrant Checks and Prolonged Detentions
• The Doctrine of Inevitable Discovery and Prolonged Detentions

(1) For purposes of officers’ safety, police officers during a lawful detention may request a criminal history check and a check for outstanding warrants without illegally prolonging the detention.  (2) Criminal history and warrant checks are permissible as part of the “mission” of an otherwise lawful detention.   (3) Information obtained when a detention is illegally prolonged may be saved by the Doctrine of Inevitable Discovery.

In October, 2016, defendant Anthony Hylton, wearing a mask, dark clothing, sunglasses, and gloves, robbed a Citibank in Henderson, Nevada.  Brandishing a black semi-automatic handgun with brown grips, he foolishly pulled back the side (apparently for effect), ejecting an unexpended round in the process.  Jumping over a counter to the teller’s side, he—even more foolishly—shoots into the floor (again for effect, just in case no one was yet taking him seriously).  Having thus obtained everyone’s attention, he ordered a bank teller to give him all the money in the drawers.  Stealing almost $70,000, he affected his escape by driving away in a black midsize SUV that (according to witnesses) looked like a Ford Escape (appropriately named).  Witnesses provided a very general physical description. Two months later (December, 2016), a passed-out defendant was found behind the wheel of a car (apparently not the Escape) at 6:13 a.m., stopped in the middle of one of Las Vegas’ busiest intersections.  Upon contacting him, officers could smell the odor of marijuana coming from the car.  Upon awakening the disoriented and confused defendant, it was noticed that pieces of pills of some sort were stuck to his sweatshirt.  Asked to get out of his car, defendant complied.  Asked for his license and registration, he told the officers that they were in the back seat.  An officer entered the car to retrieve the license and registration.  (See Note, below.)  He could not find the documentation, but observed instead in plain sight a gun case with a semi-automatic pistol in it.  A radio check run on the gun came back negative for having been stolen.  A continued search for defendant’s license and registration resulted in the discovery of some crushed pills and a half empty bottle of alcohol.  A field sobriety test (“FST”) was administered, the results of which were inconclusive.  It was decided to request a drug recognition expert (i.e., “DRE”) to come to the scene, which is the standard practice when FSTs are inclusive.  While waiting for the DRE, the search for defendant’s license and registration continued, still without success.  By then, it was 6:41 a.m., some 28 minutes into the detention. Obtaining his name and date of birth orally, they used this information to perform a radio check on the status of his driver’s license, registration, and insurance. They also checked for any open warrants and his criminal history.  This resulted in the discovery that defendant had a felony record.  He was therefore arrested for being a felon in possession of a firearm.  The time of the arrest was 6:49 a.m., making the length of the detention some 36 minutes.  The firearm was later determined to match the description of the pistol used in the October bank robbery; i.e., a black semi-automatic handgun with brown grips.  Ballistics later matched the gun to the round defendant fired into the bank’s floor.  However, without yet being charged with robbery, defendant was released on bail.  Apparently running low on cash, and remembering what a big haul he’d made the first time, defendant returned to the same Citibank branch in January, 2017, and robbed it again.  This time he used a silver revolver (the police having taken his semi-automatic pistol).  Stealing some $18,000, defendant was again seen escaping in a Black Ford Escape.  Investigators (not yet tying this robbery to the earlier one in October) found only three Ford Escapes registered in the area, one of which belonged to defendant’s girlfriend.  She told investigators that defendant was the only one (other than herself) who was allowed to use her car.  So it was back to jail for defendant. Charged in federal court with two counts of bank robbery, two counts of the use of a firearm during and in relation to a crime of violence (i.e., the bank robberies), and one count of being a felon in possession of a firearm, defendant’s motion to suppress the firearm retrieved from his car in December was denied.  After defendant pled guilty to being a felon in possession of a firearm, a jury convicted him of the other four charges.  Defendant appealed.

The Ninth Circuit Court of Appeal affirmed.  The issue on appeal was the length of defendant’s detention in December; i.e., was it an illegally prolonged detention   Defendant argued that his detention (lasting some 36 minutes) was unconstitutionally prolonged, and that because it was during this time it was discovered that he had a felony record, the gun—which otherwise would not have been seized—should have been suppressed.  The law on detentions as they relate to traffic stops is well-settled.  Police may stop and temporarily detain an individual whenever they have a reasonable suspicion to believe that the person detained has committed a traffic infraction.  “A routine traffic stop is more analogous to a Terry stop ‘than to a formal arrest,’ . . .” (Referring to Terry v. Ohio (1968) 392 U.S. 1.)  However, such a stop (or, more correctly, a “detention”) “‘can become unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a’ ticket for the violation.” (Italics added:  Rodriguez v. United States (2015) 575 U.S. 348, 354-355.) “‘[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s “mission”—to address the traffic violation that warranted the stop and attend to related safety concerns.’”  (Id. at p. 354.)  In this case, an unconscious defendant was found in a vehicle in the early morning hours and in the middle of a busy intersection, either asleep or passed out.  The “mission” of this particular detention was to determine the cause of defendant’s condition, reasonably suspecting that he may have been illegally driving while under the influence of alcohol and/or drugs.  The officers’ safety is also something that may be taken into account during such a detention.  “The government’s interest in officer safety ‘stems from the mission of the stop itself’ because ‘[t]raffic stops are especially fraught with danger to police officers, so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely.’” (Id. at p. 356.)  In recognizing that officer safety is a concern, it has been held that officers are justified in running “criminal record and outstanding warrant checks” to help them access who it is with whom they are dealing.  (Ibid, citing United States v. Holt (10th Cir. 2001) 264 F.3rd 1215, 1221-1222.)  The officers did that here, discovering in the process (after the detention had lasted for between 28 and 36 minutes) that defendant was a convicted felon, making it illegal for him to possess the firearm previously found in his vehicle.  Defendant’s argument was that by taking the time to run a criminal history and warrant check on him, his detention had been prolonged beyond the time the officers could legally hold him, citing United States v. Evans (9th Cir. 2015) 786 F.3rd 779 as authority for this argument. The Court here, however, noted that in Evans, the computer check done by the officers was for a purpose other than their safety, but rather to determine whether the detainee was a felon and if so, whether he had properly registered as such as is required by Nevada state law.  This is referred to as a “felon registration check.” This type of records check is different than a criminal history check done for purposes of officers’ safety.  As such, if the Evans-type check prolongs the traffic stop beyond the time necessary to complete the “mission” of a traffic stop, it is illegal absent some other independent reasonable suspicion justifying the continued detention.  In the instant case, however, the criminal history check was for the purpose of insuring the officers’ safety, and thus “stems from the mission of the stop itself.”  In other words, precautions taken to insure the officers’ safety during a traffic stop-type detention are a part of the mission of the detention, and are lawful without having to first establish some independent reasonable suspicion.  Such a check is a “negligibly burdensome precaution (necessary) to complete the stop safely.”  The criminal history check done in this case, therefore, did not unlawfully prolong defendant’s detention. Alternatively, the Court found that even if defendant’s felony record had been discovered after that point in time when the detention should have ended, that information would have “inevitably” been found anyway.  This fact triggers what is known as the “Inevitable Discovery Doctrine.”  This theory applies when, by “following routine procedures, the police would inevitably have uncovered the evidence (at issue).” (United States v. Young (9th Cir. 2009) 573 F.3rd 711, 721.)  In this case, defendant’s gun had already been observed during (as conceded by defendant) his lawful detention.  When it was later discovered that he was a felon—by the Court’s count, some two minutes after he would have been released—the officers “would have pulled him over again and seized the gun.”  Therefore, even if defendant’s detention should have ended before it was discovered that he was a convicted felon, he would have inevitably been arrested anyway with his gun seized as a result.  The Court found this to be an appropriate application of the “Inevitable Discovery Doctrine.”  In either case, the Court upheld the trial court’s refusal to suppress defendant’s gun.

Including the running of a criminal history and warrant check within the “mission” of a traffic stop type of detention—done with officers’ safety in mind—without unconstitutionally prolonging that detention, is the primary issue of importance here.  This rule has not always been so succinctly stated in prior cases.  And the issue has only been complicated by the U.S. Supreme Court’s 2015 decision in Rodriquez v. United States, referred to above.  Rodriguez held that even a “di minimis” extension of a detention beyond what is necessary to accomplish the mission of a traffic stop renders that continuing detention illegal.  (The defendant in Rodriquez having been held some seven minutes too long.)   So this new case is a good one to have on the books, giving us some idea what you can and cannot do without illegally prolonging a detention.  But it is still always an issue of how long you can hold onto a detainee without violating Rodriguez, the answer varying depending upon the circumstances of the stop.  A typical traffic stop, for instance, should normally be accomplished in around ten minutes.  (See People v. Carter (2005) 36 Cal.4th 1114, 1139-1142.)  In this new case, the defendant appeared to be under the influence of something—although it was apparently never determined what—allowing for a longer detention while this issue was investigated.  All you as a patrol officer can do is use your time wisely without dragging your feet.  On another issue, I was a little surprised that defendant didn’t challenge the legality of the officer’s search of his car for his license and registration.  The general rule is that an officer must allow the driver the opportunity to locate and produce his own license and registration.  (See People v. Jackson (1977) 74 Cal.App.3rd 361.)  There’s no indication in this case that the officer who found defendant’s gun in the backseat attempted to comply with Jackson.  But the rule in Jackson has pretty much been eaten up by exceptions.  Relevant here is Ingle v. Superior Court (1982) 129 Cal.App.3rd 188, at pg. 194, where the Court held that “it would defy common sense not to hold that an officer, who has a right to see a motorist’s driver’s license, may enter a vehicle to obtain the license when the motorist, who is outside the vehicle, has told him [or her] where it is and has not otherwise objected to his [or her] entering the car without a warrant.” (Italics added)  Ingle is spot on with the circumstances of Anthony Hylton’s situation in this case.  But with the Ingle case being some 42 years old, the issue might have been worth testing again.  Defendant apparently chose not to do so.