Putting traffic detainee in back of police car was investigative technique but without justification

The defendant was stopped for going 8 mph over the speed limit, so he did not contest his stop. He was put in the back of the police car because it was raining, but the officer’s own video of the three days surrounding that event showed he did it to most people he stopped. He admitted that it was an “investigative technique” to see if the driver got excessively nervous. This was tantamount to an arrest. While Pennsylvania v. Mimms allows an officer to order a motorist out of the car and a patdown can be done when the officer has safety reasons, here there was no justification. State v. Berrios, 235 S.W.3d 99 (Tenn. 2007):

On the other hand, the placement of a driver into the backseat of a patrol car cannot be described as “de minimus” or a “mere inconvenience.” A process involving a frisk and placement into the back of a locked patrol car is more akin to a full-scale arrest than the brief detention generally incident to an ordinary traffic stop. After a traffic violation, a driver can generally expect “to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way.” Berkemer v. McCarty, 468 U.S. 420, 437 (1984). “The government’s general interest in criminal investigation, without more, is generally insufficient to outweigh the individual interest in ending the detention.” United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001).

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In Wilson v. State, 745 N.E.2d 789 (Ind. 2001), the Indiana Supreme Court observed that it could “envision various particularized circumstances (including, for example and without limitation, inclement weather, the lack of available lighting for paperwork, the need to access equipment with the detained motorist, etc.) that may make it reasonably necessary for police to require a stopped motorist to enter a police vehicle,” but nevertheless concluded that “[a]n officer is not using the least intrusive means to investigate a traffic stop if, without a particularized justification making it reasonably necessary, he places a person into his patrol vehicle and thereby subjects the person to a pat-down search.” Id. at 793. Similarly, the Minnesota Supreme Court has ruled that “a reasonable basis must exist” for an officer to ask a driver to wait in the patrol car during a routine traffic stop. See State v. Varnado, 582 N.W.2d 886, 891 n.4 (Minn. 1998).

As to the frisk, the United States Supreme Court has granted “narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Terry, 392 U.S. at 27. The Court has ruled that there is no justification for an exception to the warrant requirement for a search incident to a traffic stop, observing that “[t]he threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a custodial arrest.” Knowles v. Iowa, 525 U.S. 113, 117 (1998). The Court concluded that the interest of officer safety was sufficiently protected in a traffic stop setting through the search power permitted under Terry. See id. at 117-18; see also LaFave, 102 Mich. L. Rev. at 1869 (for a discussion of this doctrine). That is to say, an officer may conduct a pat-down for weapons if he has reasonable suspicion that the driver may be armed. Knowles, 525 U.S. at 117-18.

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While in this case Officer Nichols’ intuition and persistence frustrated the illegal activities of the Defendant, a fact that would otherwise merit praise, our approval of this particular “frisk and sit” would deviate from generations of law in this area. The Supreme Court has warned that “illegitimate and unconstitutional practices get their first footing … by silent approaches and slight deviations from legal modes of procedure.” Boyd v. United States, 116 U.S. 616, 635 (1886). Moreover, those jurisdictions that permit a detention like this during a routine traffic stop do not allow a pat-down for weapons in the absence of reasonable suspicion. See, e.g., Lozada, 748 N.E.2d at 524 (“[D]uring a routine traffic stop, it is unreasonable for an officer to search the driver for weapons before placing him or her in a patrol car, if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer.”). Other jurisdictions have concluded that a pat-down for weapons is permissible before placing a person into a patrol car so long as there was a reasonable basis for the placement. As stated by one New York court, “Although a police officer may reasonably pat down a person before he places him in the back of a police vehicle, the legitimacy of that procedure depends on the legitimacy of placing him in the police car in the first place.” People v. Kinsella, 527 N.Y.S.2d 899, 899 (N.Y. App. Div. 1988).