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• Detaining people without reasonable suspicion to believe they are involved in criminal activity 
• Temporary detention of a material witness 
• Use of force and civil liability 
• Video recording a police-citizen contact per P.C. § 148(g) 
• Qualified immunity 

Generally, detaining an individual without reasonable suspicion violates the Fourth Amendment. There’s an exception, however, when the person detained is a material witness to a pending possible crime. To justify such a suspicionless detention there must be an exigency requiring immediate action, the gravity of the public interest must be great and the detention must be minimally intrusive, both in length of time and amount of force used. A threat of an imminent school shooting justifies a temporary detention of people who might know the whereabouts of the alleged shooter. Excessive force used during such a detention, however, may lead to civil liability for which there is no qualified immunity. 

On March 5, 2018, Ryan Bernal, a student at the Vista Del Lago High School in Folsom, California, sent a text to a friend stating that he intended to “shoot up the school, and today was the day.” This message was apparently passed onto the Folsom Police Department. After officers determined that Ryan did not show up at school that morning, Folsom asked for help from the Sacramento County Sheriff’s Department. Seven uniformed deputies responded to Ryan’s home address. They completed a “premises history check” of the Bernal residence before arriving, allowing the deputies to determine that William and Celia Bernal (presumed to be Ryan’s parents) lived there. It was also determined that no firearms were registered at the address or in any of the Bernals’ names.  

One of the deputies called the house and spoke with Celia. Identifying himself as a Sacramento County sheriff’s deputy, he informed Celia about the threats Ryan had made and asked to speak with him. Celia told the deputy that Ryan was at his grandmother’s house, but refused to tell the deputy where that was because she couldn’t verify who she was talking to. The deputies therefore drove to the Bernal residence en masse just as Celia and William were coming out of the house and heading toward their car.  

The deputies made contact, intending to detain the Bernals long enough to determine Ryan’s location. Celia, agitated and yelling, again informed the deputies that Ryan was not home. Telling the deputies that she did not want to speak with them anymore, and ignoring their commands not to leave, she got into her car, started the engine (which she denied doing), and appeared to be ready to back out of the driveway.  

Because she was ignoring their commands, one of the deputies blocked her from driving away by standing at the back of her car, while other deputies reached inside in an attempt to grab the keys. Two deputies grabbed her arms from both sides, applying a “twist-lock” (a type of control hold which uses pain to gain control) to her right arm. Yelling at William to use his cellphone to record what was going on, Celia eventually quit resisting. She was removed from the car and put into a plastic lawn chair, unhandcuffed.  

Meanwhile, other deputies confronted the also agitated 6-foot, 3-inch, 290-pound William as he stood in front of Celia’s car. As he yelled at the deputies to stop touching Celia, William placed a duffel bag he was carrying onto the hood of the car and “aggressively” reached into it (an action he later denied doing). At that point, one of the deputies drew his firearm and pointed it at William. When William pulled a cellphone out of the bag, the deputy reholstered his weapon. Telling him to put his phone away and to calm down, two deputies (both significantly smaller than William; about 5 feet, 7 inches) struggled with a yelling, uncooperative William, attempting to handcuff him by “wrenching” his arms behind his back as they pushed his head into the hood of the car.  

One of the deputies testified that William “elbow(ed)” him in the chest, necessitating the force the deputies used. William, in turn, testified that the deputies kicked his legs apart causing his knees to buckle, forcefully pushing his torso onto the hood of the car and forcing his head to turn past its natural range of motion. The deputies denied they touched his legs or knees. As they attempted to handcuff William, one of the deputies used a “rear twist-lock” while he attempted to push him onto the hood of the car. William denied resisting at all, claiming that he only tried to twist away from the deputies to relieve the pain caused from his recently surgically repaired shoulders.  

Once the deputies got William handcuffed and under control, they used a second pair of handcuffs to create a “daisy chain,” allowing William’s shoulders more room. William was put into the back of a patrol car, from which he was released about 10 minutes later. This whole episode, as recorded on the deputies’ body cameras, lasted approximately 20 minutes. The Bernals then led the deputies to the grandmother’s house, where Ryan was taken into custody by Folsom P.D. officers.  

Ryan pleaded no contest to a misdemeanor P.C. § 422, making threats to commit a crime resulting in death or great bodily injury, and unlawfully possessing a firearm – a charge that was later dismissed. The Bernals were apparently never charged with any offenses. 

The Bernals sued the deputies and the Sacramento County Sheriff’s Department in federal court alleging, among other things, that their detentions and the force used on them violated the Fourth Amendment. The federal district court granted the deputies and sheriff’s department’s motion for summary judgment to dismiss the lawsuit, ruling that the deputies’ use of force was reasonable under the circumstances. The court also ruled that even if not, the deputies were entitled to “qualified immunity,” since there was no case law putting the deputies on notice that the force they used might have been excessive. The Bernals appealed. 

The Ninth Circuit Court of Appeal affirmed in part and reversed in part. At issue on appeal was (1) the lawfulness of detaining people when they are not suspected of any criminal offense, (2) the reasonableness of the force used in the detention, and (3) the applicability of “qualified immunity” to this case.  

Detentions of People Not Suspected of Having Committed a Criminal Offense: Generally, detaining a person absent at the very least a reasonable suspicion to believe the person is involved in criminal activity violates the Fourth Amendment. (Terry v. Ohio (1968) 392 U.S. 1.) In this case, it was undisputed that the Bernals were detained within the meaning of the?Fourth Amendment?and that prior to their initial seizure, they were not involved in any criminal activity. However, there’s at least one exception to the rule of Terry v. Ohio, and that’s when the person detained is a material witness to a pending possible crime. In determining when this exception might apply, the courts will weigh “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” (Brown v. Texas (1977) 443 U.S. 47.)  

An example of this exception is when the detention of a non-suspect witness is done for the purpose of obtaining information.?(See?Illinois v. Lidster (2004) 540 U.S. 419.) In?Lidster, the Supreme Court held that a traffic checkpoint in which police briefly detained all motorists in a specific area to inquire about a fatal hit-and-run incident did not run afoul of the?Fourth Amendment. As noted by the Ninth Circuit: “The ‘[m]ost important’ reason for the court’s holding was that ‘the stops interfered only minimally with liberty of the sort the?Fourth Amendment?seeks to protect.’ The motorists were delayed ‘a very few minutes at most,’ contact with police ‘lasted only a few seconds,’ and the contact ‘consisted simply of a request for information and the distribution of a flyer.’?...Further, ‘the contact provided little reason for anxiety or alarm’ due to the stop’s brevity?and the fact that ‘police stopped all vehicles systematically.’”? 

The rule is, therefore, that “to justify the suspicionless seizure of a material witness, there must be an exigency requiring immediate action, the gravity of the public interest must be great, and the detention must be minimally intrusive, both in length of time and amount of force used.”  In the instant case, the Sacramento sheriff’s deputies were seeking the whereabouts of a potentially dangerous school shooter, an obviously serious crime for which there is a strong “public interest” to prevent. An exigency existed, requiring an immediate response.  

The seizure would have been for a minimal amount of time and non-confrontational (i.e., minimally intrusive) had the Bernals not been so uncooperative. Under these circumstances, the court ruled that the deputies had “limited authority to briefly detain and question the Bernals” for the purpose of determining the whereabouts of their potentially and ‘imminent(ly)” dangerous son. The Ninth Circuit held, therefore, that the trial court properly granted the civil defendants’ motion for summary judgment on this issue.  

Reasonableness of the Force Used: The court considered the force used against Celia and William separately. The court noted that the U.S. Supreme Court has determined that it must consider three “non-excusive” factors when evaluating this issue: “(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect actively resisted arrest or attempted to escape.” (Graham v. Connor (1989) 490 U.S. 386, 396.)  

First, the court noted that while no crime had yet been committed, it cannot be argued that the pending possibility of a school shooting is not serious. By resisting the deputies in their attempt to locate their son, the Bernals “‘prolong[ed] a dire’ emergency situation.” As such, it was obvious that the situation in general “posed an immediate threat to the safety of...others.”  

As for Celia, it was undisputed that deputies ordered Celia to stay out of, and then exit, her vehicle, which she ignored. It was only after Celia prevented the deputies from taking her keys did they use force. And even then, the amount of force used on her was “minimal,” mainly the restraining her arms, including the use of the “wristlock,” to keep her from driving away.  

The confrontation with her lasted a couple of minutes. She was then permitted to sit in a lawn chair in her yard, unhandcuffed.  

Under these circumstances, the court determined that there was no Fourth Amendment violation as to her, sustaining the trial court’s granting of the civil defendants’ motion for summary judgment.  

For William, however, the facts were different. One of the deputies pointed his gun at William when, according to the deputy, William reached “aggressively” into the duffle bag he was carrying. William denied making such a move. This leaves a factual determination that must be decided by a jury. Secondly, the force used against William was considerably more than used against Celia, bending his arms back, pushing him onto the hood of the car while twisting his head, and handcuffing him. William also alleges that the deputies kicked his legs apart and forced his knees to buckle, an action the deputies denied. The deputies also argue that the use of such force was made necessary by William’s physical resistance, while William argues that he did not resist at all.  

It was also noted that William was under no legal obligation to stop recording the events as they related to his wife, Celia, or to provide the deputies with any information about his son’s whereabouts. It was alleged that William's “belligerent” demeanor caused the deputies to fear for their safety. William, on the other hand, denies that he did anything more than react to the unnecessary pain the deputies were causing, yell at the officers to quit hurting his wife, and attempt to record on his cellphone what was occurring.  

Assuming William did not physically resist the officers, as he alleges, he could not be arrested or prosecuted for resisting arrest. To the contrary, if the events occurred as William alleges, then the force used against him was excessive, and a violation of the Fourth Amendment.  

Even if the deputies’ version of the events is accepted, the law does not prevent a person from verbally contesting a law enforcement officer’s actions or from recording the events as they occur. (See Houston v. Hill (1987) 482 U.S. 451, 462.)  

The court also noted that the California Penal Code specifically provides that it is not an unlawful obstruction to make an “audio or video recording” of an officer “while the officer is in a public place” or the person making the recording “is in a place he or she has the right to be.” (Pen. Code § 148(g))  

All this leaves several factual determinations that must be decided by a jury. As such, the Ninth Circuit reversed the trial court, remanding the case back for trial, ruling that the trial court improperly granted the civil defendants’ motion for summary judgment. 

Qualified Immunity: Despite all the above, the civil defendants argued that because there was no prior case authority dictating how the deputies should have acted in such a situation, they were entitled to a finding of “qualified immunity” from civil liability. “Qualified immunity shields law enforcement officers from civil liability under (42 U.S.C.)?§ 1983?‘unless the officers violated a clearly established constitutional right.’”?(Monzon v. City of Murrieta (9th Cir. 2020) 978 F.3rd 1150, 1156.)  

A court is to make two inquiries in determining whether qualified immunity applies. First, did the deputies violate a constitutional right, and if so, was that right “clearly established” at the time of the misconduct??(Id., quoting?Pearson v. Callahan (2009) 555 U.S. 223, 232-233.)  

At least as to William, the deputies did, in fact, violate his constitutional rights, as discussed above. The only issue is whether this issue is “clearly established” in the law, sufficient to put the deputies on notice that they were violating William’s rights. “An officer cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the (civil) defendant’s shoes would have understood that he was violating it.” (City of Escondido v. Emmons (2019) 139 S.Ct. 500, 503, quoting the Supreme Court in?Kisela v. Hughes (2018) 138 S. Ct. 1148, 1152.)  

Contrary to the conclusions of the trial court, the Ninth Circuit held here that: “(A)lthough not an absolute right, the ‘freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.’” (Houston v. Hill, supra, at pp. 462-463.) And, as noted above, Penal Code § 148(g) protects William’s right to record the events as they occurred. With these rules being so clearly established, the deputies should have been aware of them. As such, they are not entitled to qualified immunity. 

Even assuming the correctness of the court’s holdings in this case, some might sympathize with the deputies who suddenly — due solely to the lack of cooperation of those detained — found themselves in a lose-lose situation. Faced with the possibility of a pending school shooting, or at the very least the possibility of an armed, possibly mentally ill, high school student out there somewhere looking for someone to kill, and whose parents are not cooperating, what are you to do?  

If I were a juror in such a civil case, I might find the deputies liable, but award the Bernals zero damages for the simple reason that had they cooperated, none of this would have occurred. The Bernals might also consider the recent Michigan case where parents James and Jennifer Crumbley of teenager Ethan, who were both found guilty of involuntary manslaughter for allowing their mentally disturbed son to have access to firearms that he used in a school shooting, killing four students and wounding seven others. Ethan is now serving a life sentence in prison, while his parents were sentenced to between 10 and 15 years in prison on four counts each of involuntary manslaughter. 

But the legal significance of the Bernal case is the fact that under limited circumstances, an officer has the right to detain a person even when there is no evidence that that person is himself suspected of committing a criminal offense. At the same time, it must be remembered that any force used to execute that detention must be minimal, if any; that the person is not legally obligated to cooperate; and when the cellphone cameras come out, the officer has no legal right to prevent anyone from recording the event. 

• Illegally prolonging a traffic stop before the discovery of a person’s Fourth Amendment waiver conditions makes a subsequent fourth waiver search illegal. 
• Prolonged detentions 
• Mission of the traffic stop 
• Criminal investigations unrelated to the mission of the traffic stop 

Reasonable suspicion to believe a vehicle is not properly licensed is sufficient cause to stop the vehicle and investigate. The ensuing determination that the vehicle is, in fact, properly registered requires that once the mission of the traffic stop is completed, the driver must be allowed to leave. An intervening inquiry into other possible criminal conduct that prolongs the detention necessitates the suppression of any information or evidence discovered afterward. 

In May, 2021, defendant Anterion Dantelamar Suggs was driving with an acquaintance through Sacramento when a Sacramento Police Department officer observed that his car displayed a paper plate only, with no visible evidence that the car was properly registered or had permanent plates, in an apparent violation of Vehicle Code § 5200. The officer made a traffic stop, but upon walking up to the car, the officer immediately noticed the necessary documentation was attached to the rear window, although it was obscured by the window tinting.  

Despite this new information, the officer contacted Suggs anyway and asked him about the purchase of his vehicle. Suggs provided the officer with out-of-state purchase paperwork. After asking where they were headed (it’s unknown if there was a response), the officer then asked for identification from Suggs and his companion. Suggs asked in response whether “this (is) necessary?” After explaining that he was not able to see the car’s documentation through the tinted windows, the officer launched into a series of more probing questions such as whether there was anything “crazy in the car that [he] needed to know about,” whether they were on parole or probation, and whether they had been arrested previously.  

Suggs was cooperative in his responses. When the officer asked if he could search Suggs’ car. Suggs declined, saying he was “just trying to get on [his] way.” At this point, the officer took the subjects’ earlier obtained identifications to his patrol car and ran a radio check, resulting in the discovery that both subjects had suspended licenses and that the passenger was on searchable probation due to a firearms-related conviction. So, he returned to Suggs’ vehicle and conducted a probation “fourth waiver” search, finding a concealed firearm, ammunition and methamphetamine.  

Charged in state court with possession of a concealed firearm, possession of meth with the intent to sell and other related charges, Suggs’ motion to suppress was denied. He pleaded no contest to a misdemeanor gun charge and appealed his sentence of 90 days’ jail and one year of informal probation. 

The Third District Court of Appeals reversed. The issue on appeal was the legality of the search of Suggs’ car. Specifically, Suggs argued that once the officer noticed the proper documentation attached to his vehicle’s rear window and thus learned that the reason he had stopped defendant was invalid, any further detention was unlawful.  

While not totally agreeing with this argument, the court held that the contact should have been terminated and Suggs allowed to leave before the officer conducted the radio check resulting in the discovery of the passenger’s fourth waiver.  

The basic law is well settled: “A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop.” (Arizona v. Johnson?(2009) 555 U.S. 323, 333.) How long that “temporary seizure” is allowed to continue depends upon the circumstances. Determining how long that may be, the courts are 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.” (United States v. Sharpe?(1985) 470 U.S. 675, 686.)   

The “tolerable duration [of the traffic stop] is determined by the seizure’s ‘mission’ — to address the traffic violation that warranted the stop.” (Rodriguez v. United States?(2015) 575 U.S. 348, 354.) That “mission” is allowed to include “ordinary inquiries incident to [the traffic] stop.” This typically involves checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” (Id.?at p. 355.) The Supreme Court has allowed this because it “serve(s) the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.” (Ibid.) During this detention, it is okay to ask about other possible criminal wrongdoing, as was done in this case, but “not...in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” (Italics added; Ibid.)  

In other words, the initial detention during a lawful traffic stop must be limited to issues related to ensuring that the driver and the vehicle are properly licensed and registered, or anything else related to the “safe and responsible” operation of the motor vehicles. And while an officer may also ask about other possible “ordinary criminal wrongdoing” during a traffic stop, the duration of the traffic stop may not be prolonged for that purpose absent the officer having developed at the very least independent reasonable suspicion of such a criminal violation.  

As for the traffic stop itself, how long the officer may detain the driver depends upon the circumstances. In this case, the traffic stop itself was lawful. And even after the officer determined that he was mistaken as to whether there was a violation of the Vehicle Code, he was not required to simply walk away. Rather, he was permitted to approach the car and explain to defendant why he stopped him. It was also lawful for the officer to ask to see Suggs’ driver’s license and vehicle registration, and check their validity.  

Once the officer determined that there were no Vehicle Code violations, however, and the license to drive was produced along with the vehicle’s documentation, the contact should have been terminated and driver allowed to leave. While checking the status of the license is also allowed, the officer did not attempt to do that until after he prolonged the detention by making separate inquiries as to what other possible criminal violations. The court held that prolonging the detention for the purpose of making these inquiries was illegal. Because the officer held off conducting the radio check until this point, the discovery of the passenger’s fourth waiver status was also illegal, being the product of an unlawfully prolonged detention. The results of the car search, therefore, should have been suppressed. 

This case goes hand-in-hand with People v. Gyorgy (July 14, 2023) 93 Cal.App.5th 659, out of the Fourth District Court of Appeal, which sets the same rules under different circumstances. Inquiries made during a traffic stop must be limited to what is commonly referred to as “the mission of the traffic stop,” as described in detail in Gyorgy. And while the law is clear that an officer is allowed to make inquiries into other possible criminal conduct (typically referred to by the courts as “ordinary criminal wrongdoing”), one can only make such inquiries so long as doing so does not prolong the time it would have taken to write the ticket and attend to other matters related to that traffic stop.  

But then if — and only if — such inquiries lead to at least a reasonable suspicion that other criminal conduct is taking place, can an officer justify prolonging the detention for the purpose of investigating that newly developed reasonable suspicion. In this case, had the officer merely asked for the identification of the driver and his passenger and gone straight back to his radio to check the status of Suggs’ driving privilege and warrants for either subject, discovery of the fourth waiver would have been lawful, as would the subsequent fourth waiver search of the car. (It is a separate issue, by the way, whether a mere passenger in a stopped motor vehicle is required to produce ID [see United States v. Landeros (9th Cir. 2019) 913 F.3rd 862)]; a whole ’nother issue, as they say.) 

But prolonging the detention by asking about other possible criminal activity first poisoned everything that happened after that. Live and learn. 

PUBLISHER NOTE:   Also see a related case by Robert Phillips published April 28, 2024:

More on Prolonged Detentions: Careful Not to Stray from the ‘Mission of the Traffic Stop’

This issue is related to another just-published article exploring Fourth Amendment Waiver searches. Diverting from the “mission of the traffic stop” to investigate other, unrelated potential criminal violations may convert an otherwise lawful traffic stop into an illegally prolonged detention.

Diverting from the “mission of the traffic stop” to investigate other possible criminal violations for which there is no reasonable suspicion may convert an otherwise lawful traffic stop into an illegally prolonged detention. 

• Prolonged detentions 
• Mission of the traffic stop 
• Reasonable suspicion 
• Criminal investigations unrelated to the mission of the traffic stop 

During a traffic stop for an observed traffic violation, an officer has about 10 or 11 minutes to complete the “mission of the traffic stop.” Using that time, however, to conduct an unrelated criminal investigation, including the use of a drug sniffing dog around the detainee’s vehicle, constitutes an illegally prolonged detention. 

During the early afternoon of March 16, 2018, an undercover officer told an Anaheim police officer, who had a drug-sniffing K-9 partner named “Titan,” that the driver of a specific pickup had been at the Tampico Motel and had “acted suspiciously,” whatever that means. The officer knew that drug trafficking was a problem at that motel. With this knowledge, he located the truck and followed it in his marked police car when he (conveniently) observed the driver of the truck make a quick lane change, cutting off another vehicle. (Veh. Code, § 22107, unsafe lane change.) Initiating a traffic stop, the officer, with his body camera activated, contacted the driver (defendant Gyorgy), the sole occupant of the truck.  

The officer asked for, and received, Gyorgy’s driver’s license. The officer then questioned Gyorgy about all kinds of things except the traffic infraction: whether he was on probation or parole, whether he was a narcotics or sex registrant, whether he had any needles or sharp objects in his truck, whether he had any weapons or drugs in the truck. In response, Gyorgy told the officer that he was in fact a registered sex offender, but denied everything else. Asked about prior arrests, Gyorgy claimed that he had two arrests, one for a theft, but both nonviolent felonies. Still without addressing the traffic violation, the officer asked Gyorgy whether he was current on his sex offender registration requirements. After Gyorgy claimed that he was, the officer asked him where he was registered and where he lived. Gyorgy provided a long explanation about how the house he had been living in was sold after his mother passed away and that he was having difficulties with his family and inheritance issues, necessitating him staying in local motels, including the Tampico, thus living in Anaheim for only two days.  

Now four or five minutes into the traffic stop, the officer ordered Gyorgy out of the truck so that he could pat him down for weapons, for “officer safety purposes.” Gyorgy complied. But instead of patting him down right away, the officer directed him to sit on the curb and wait until another officer arrived. As they waited, Gyorgy asked why he had been pulled over and what was going on. The officer told him: “I’ll get to that. I’ll tell you shortly,” or words to the effect.  

A second officer arrived at the scene between the 5th and 6th minutes of the traffic stop. It was at this point that the officer finally told Gyorgy that he had been stopped because of an unsafe lane change, describing how another vehicle had to slam on its brakes. When asked why he had been told to get out of his truck, the officer simply told him: “For officer safety.” The officer then patted Gyorgy down for weapons and found nothing.  

Now 7½ minutes into the traffic stop, the officer told Gyorgy he was going to conduct a dog sniff around his truck. When Gyorgy refused to give the officer permission to use the dog to search the truck’s interior, the officer told defendant that it didn’t matter, because he had the right to conduct a dog sniff. Gyorgy had his own dog, a small Maltese, in the truck, which the officer allowed Gyorgy to take out after he objected to the officer doing it himself. The officer then had Gyorgy and his Maltese sit again on the curb as the officer, again over Gyorgy’s objections, opened the driver’s door, turned on the ignition, and rolled up the driver’s window (apparently a half-open window being a hazard to Titan as Titan sniffed the truck).  

The officer then had Titan sniff the exterior of the truck, eventually leading to Titan alerting at the driver’s door. It was now 11 minutes and 45 seconds into the traffic stop. Letting Titan into the truck, the dog was unable to pinpoint exactly where there might be drugs. But based upon the original alert, the officers searched the truck and found methamphetamine, methamphetamine paraphernalia, an unloaded handgun, an empty magazine, and six live rounds. A records check was then conducted, resulting in information to the effect that defendant was in fact a felon and prohibited from possessing firearms. He was arrested.  

Gyorgy was never written a citation for the totally forgotten illegal lane change. Charged in state court with a pile of drug- and gun-related offenses, his motion to suppress all the evidence was denied. Convicted after a jury trial of the misdemeanor charges of possession of methamphetamine and paraphernalia (but for an unknown reason, not the gun-related charges), Gyorgy appealed. 

The Fourth District Court of Appeal (Div. 3), in a 2-to-1 decision, reversed the trial court. On appeal, Gyorgy argued that his Fourth Amendment rights were violated by an “unlawfully prolonged” detention and that the trial court erred by not suppressing the resulting evidence. The majority of the court agreed.  

The basic law is well settled. Traffic stops are considered Fourth Amendment seizures, although lawful so long as based upon at least “reasonable suspicion.” The initial traffic stop itself in this case was lawful, since “pretext” or “pretextual stops” are well settled in the law. The officer’s observation of Gyorgy making an unsafe lane change justified the initial detention. “Nevertheless, a traffic stop ‘that is lawful at its inception can violate the?Fourth Amendment?if its manner of execution unreasonably infringes interests protected by the Constitution.’” (Illinois v. Caballes?(2005) 543 U.S. 405, 407.) To remain lawful, a police officer must diligently attend to the “mission of the traffic stop,” and then — absent the intervening development of a reasonable suspicion of any other criminal activity — let the detainee leave. (Rodriguez v. United States?(2015) 575 U.S. 348, 350–351.) 

The “mission of the traffic stop” has been held to include the issuance of the traffic ticket, making “ordinary inquiries incident to [the traffic] stop” such as checking the driver’s license, determining whether there are outstanding warrants against the driver and inspecting the automobile’s registration and proof of insurance. (Rodriguez, supra, at p. 355.)?It has also been held to include “a criminal history check...which is done by consulting an in-car computer terminal or radioing dispatch.” (People v. Lopez?(2019) 8 Cal.5th 353, 363, fn. 4.)?“And although not specifically compelled by law, certain other steps customarily taken as matters of good police practice are no less intimately related to the citation process: For example, the officer will usually discuss the violation with?the motorist and listen to any explanation the latter may wish to offer.” (People v. Tully?(2012) 54 Cal.4th 952, 981.)?“These tasks are included within the officer’s mission during a traffic stop because they serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.” (Rodriguez, supra, at p. 355.)  

The only legal way to extend the mission of the traffic stop, absent the detainee’s consent, is for the officer, while engaged in the above, to develop independent reasonable suspicion of some other ongoing criminal activity. A dog sniff of a detainee’s vehicle, however, is what the court referred to as “a detour” from the traffic stop’s mission. “The dog sniff's?purpose is not connected to roadway safety...but to ‘detect[ing] evidence of ordinary criminal wrongdoing.” (Rodriguez, Ibid.)  

However, a dog sniff itself, as held by the U.S. Supreme Court not to constitute a search (Illinois v. Caballes, supra.), it is not illegal so long as it does not extend the time it would have taken to accomplish the mission of the traffic stop. (People v. Vera?(2018) 28 Cal.App.5th 1081, 1088-1089.) Should the dog detect illegal contraband, that fact alone is sufficient to extend the detention long enough to investigate that newly developed probable cause.  

As noted, Titan alerted on Gyorgy’s truck at 11 minutes and 45 seconds into the contact. That, in itself, is not long enough to necessarily constitute an illegally prolonged detention. But the problem was that the officer detoured from the traffic stop’s mission almost immediately. After asking Gyorgy for his driver’s license at the initial contact, nothing more was done relative to the traffic violation for the entire 11 minutes and 54 seconds of the detention. Almost everything the officer did after asking for the license was in preparation for conducting a dog sniff of the truck. The purpose of the stop was not even mentioned until Gyorgy asked about it, more than five minutes into the stop. As noted by the court, the officer’s “detours prolonged the traffic stop’s duration beyond the time necessary to effectuate the stop’s purpose.” The officer “spent most of the 11 minutes and 54 seconds of the detention (prior to the dog alert) performing tasks unrelated to the traffic stop mission.”  

Therefore, the detention in this case was unreasonable under the Fourth Amendment. Gyorgy’s motion to suppress the resulting evidence should have been granted. 

The lesson learned here is that it is not necessarily how long the traffic stop lasts that is important, but rather what an officer does during that time.  

For instance, had the officer sought to handle the traffic violation by a least beginning to write the citation as he was arranging for a cover unit to watch his back, and then let the other officer finish the ticket as he got Titan out of his car and conducted the sniff – assuming all this could have been accomplished within a reasonable 10 or 11 minutes – the result would have been different.  

Other cases have held that as long as the officer is actively pursuing the mission of the traffic stop, as long as 11 minutes is not unreasonable: 

People v. Carter (2005) 36 Cal.4th 1114, 1139-1142, 10 minutes 

United States v. Salkil (8th Cir. IA, 2021) 10 F.4th 897, 10 minutes, 45 seconds. 

United States v. Cole (7th Cir. 2021) 21 F.4th 421, 9 minutes 

United States v. Goodwill (7th Cir. 2022) 24 F.4th 612, 10 minutes 

United States v. Gorman (9th Cir. 2017) 859 F.3rd 706, 714-719, 10 minutes 

But it’s hard to fault the officer here. He was either trained, or just assumed from his training, that he had about 10 minutes or so during which he could do whatever he wanted with the detainee. And until this case, there was nothing to tell him he was wrong in this assumption. As this case points out, however, that’s just not the law.  

By the way, the dissenting justice, Eileen C. Moore, did not disagree with the majority’s “mission of the traffic stop” analysis. Instead, she believed that within the first few minutes of the contact, with Gyorgy admitting he was subject to sex offender registration requirements that were apparently not up to date (as he was new to the Anaheim area and temporarily living in a motel), plus other suspicious circumstances (furtive driving, the motel he was staying, convoluted answers to the officer’s questions, etc.), the officer had sufficient reasonable suspicion to detain him further to investigate these issues. Per Justice Moore: “Under any reasonable interpretation of the developing facts, this was no longer a routine traffic stop restricted by the time necessary for (the officer) to write a traffic ticket.”   

The majority opinion specifically rejected this argument, however, which it basically had to do if it was going to make its “mission of the traffic stop” point. Based upon this argument alone, however, this case is one the prosecution should seriously think about seeking Supreme Court review.  

PUBLISHER NOTE:   Also see a related case by Robert Phillips published April 28, 2024:

Fourth Amendment Waiver Searches: Don’t Prolong a Detention Beyond Why You First Stopped a Driver
A 2023 appellate case from Sacramento illustrates problems when an officer prolongs a detention during a traffic stop by asking about other possible criminal activity first, before discovering a subject’s Fourth Amendment probation waiver and finding incriminating evidence.