Illegally Extended Traffic Stops — Pennsylvania State Trooper Style

The Pennsylvania State Police train its officers to illegally extend traffic stops under any circumstances so as to search cars with or without consent. On April 27, 2015, in Commonwealth v. Nguyen, 2015 Pa. Super. LEXIS 223, 1, 2015 PA Super 98 (Pa. Super. Ct. 2015), our Superior Court was called upon again to instruct the State police to halt their illegal interrogations and extensions of traffic stop beyond that necessary to conclude the initial traffic stop.

As usual with many of these cases, the initial traffic stop was lawful based upon some, even deminimus, vehicle code violation, or other conduct that warrants a Terry stop and investigation. It is the recurrent question of whether there had been, in the interaction between a car’s driver and a police officer, a “second” detention that was illegal, thereby rendering the granted consent invalid. Since Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (Pa. 2000), the Pennsylvania Supreme Court has consistently instructed that the “second” round of questioning constitutes a seizure, commenting that:

The transition to and character of the subsequent interaction, however, supports the conclusion that Freeman was subject to a second seizure. Since the trooper had accomplished the purpose of the stop, as he expressly indicated, Freeman would have been entirely within her rights to drive away at that point. Nevertheless, the trooper’s subsequent actions were inconsistent with his statement to Freeman that she was free to leave, as he: returned to Freeman’s vehicle; questioned her about the second vehicle; pointed out the inconsistent statements from the vehicle’s occupants when she denied traveling with that vehicle; and, ultimately and most significantly, asked her to step out of the vehicle prior to the request for consent. … Moreover, given everything that had come before, although these events occurred after express conferral of advice that Freeman was free to depart, they would have suggested to a reasonable person that such advice was no longer operative.

Id. at 907-908. In Commonwealth v. Moyer, 2008 PA Super 173, 954 A.2d 659 (Pa. Super. 2008), (en banc), Superior Court was faced with a traffic stop encounter featuring a “second” round of questioning and also concluded that the additional questioning constituted a seizure. There the court stated:

when an individual has been subjected to a valid detention and the police continue to engage that person in conversation, the citizen, having been in official detention, is less likely to understand that he has the right to refuse to answer questions or a search. Furthermore, … the Court stressed that “conferral of the ‘free-to-go’ advice is, itself not a reason to forego a totality assessment” and therefore does not constitute a controlling factor in assessing whether a person would actually credit a police indication that he was free to leave.

Id. at 665 (emphasis in original) (citing Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 899 n.24 (Pa. 2000)). These are the two seminal cases discussing the standard of review and the burden of proof the Commonwealth must carry to justify these extended traffic stop searches.

In my last blog, State Trooper Highway Automobile Dog Searches After the End of Traffic Investigation   I addressed the United States Supreme Court discussing this very issue. In the Rodriquez case, the police, illegally it was determined, were extending traffic stops to have the police dogs show up and then, utilizing the police dog “alerting” as the probable cause to further secure and search the car without consent or a warrant. The was illegal.

 

In Nguyen, the issue was there was sufficient probable cause to extend the traffic stop based only upon the fact that Nguyen was nervous and had a prior criminal record. Nguyen was walking back to his car after being excused by the trooper. The same test applies if the driver is sitting in his car (no other criminal conduct and they are nervous and have a record in a high crime area). The Nguyen court ruled that because:

the trooper had accomplished the purpose of the stop, as indicated by his issuance of a warning and stating that the driver and Appellant were free to go, the driver would have been within his rights to drive away at that point. Nevertheless, the trooper’s subsequent actions were inconsistent with his statement that they were free to leave. After walking toward his cruiser, the trooper turned around and returned to the driver’s vehicle, approached the driver, and began to ask the driver additional questions. Moreover, when the trooper re-engaged the driver, the driver was still standing outside of his vehicle. As this Court has noted, when a person is standing outside rather than inside his vehicle, he is less likely to believe that he can actually leave the area by entering the car and driving away. Commonwealth v. Kemp, 2008 PA Super 274, 961 A.2d 1247, 1254 (Pa. Super. 2008) (citing Moyer, 954 A.2d at 659).

Commonwealth v. Ngyuen, 2015 Pa. Super. LEXIS 223, 21, 2015 PA Super 98 (Pa. Super. Ct. 2015).

Unique to the Nguyen case is Nguyen’s prior criminal history for drug activity and his nervousness. Knowing this, however, the court emphatically stated:

for this investigative detention to pass constitutional muster, it must be supported by reasonable suspicion of criminal activity. Kemp, 961 A.2d at 1254. “Where the investigative detention at issue follows a lawful traffic stop, the officer must demonstrate cause for suspicion after the end of the initial stop, and independent of any basis on which he conducted the prior stop.” Here, the trooper identified the fact that the driver was overly apologetic, nervous, and talkative as reasons to re-engage the driver.

In evaluating this type of typical cover-up testimony (every person pulled over by a state trooper is nervous), the court looked at other cases that specifically state:

Our Courts pronounced an officer’s assessment of nervous demeanor palpably insufficient to establish reasonable suspicion of a citizen’s involvement in criminal activity, even when viewed in combination with other indicia of potential criminal acts. We have found furtive movements similarly deficient even when they occur in high crime environments in the late hours of the night. Thus, we find no basis to conclude that excessive nervousness and furtive movements, even considered together, give rise to reasonable suspicion of criminal activity. A police officer’s observation of a citizen’s nervous demeanor and furtive movements, without more, establishes nothing more than a “hunch,” employing speculation about the citizen’s motive in the place of fact. Were we to validate such a practice, we would open every occupant of a motor vehicle in this Commonwealth to law enforcement officers’ wholly subjective interpretation of inoffensive conduct, and undermine our Supreme Court’s time-honored insistence that police officers may stop our citizens only on the basis of objective criteria. This we cannot do. This we will not do. Reppert, 814 A.2d at 1206 (this blooger has added the emphasis).

Thus, the Nguyen court concludes that the driver’s behavior of being overly apologetic or nervous is insufficient to establish reasonable suspicion. Additionally, this Court also invalidated a trooper’s proper knowledge of a driver’s criminal history (due to the legal traffic citation investigation) as an additional basis – along with the nervousness – constituting reasonable suspicion for the subsequent interaction after the initial stop ended. Commonwealth v. Ngyuen, 2015 Pa. Super. LEXIS 223, 22-24, 2015 PA Super 98 (Pa. Super. Ct. 2015).

This decision is momentous in what it actually says. Reasonable suspicion to extend a legal traffic stop is not established by nervous individuals with prior criminal records. Drivers may be taken out of their car, Commonwealth v. Gary, 91 A.3d 102, 104, 2014 Pa. LEXIS 1119, 1, 2014 WL 1686766 (Pa. 2014), based upon probable cause. Nguyen is consistent with Gary in that, again, nervous individuals with prior criminal records, in high crime areas, does not amount to either reasonable suspicion or probable cause to search a car.

Call me about your Pennsylvania State Trooper illegal traffic investigation.

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