IN: Routine questions about drugs during traffic stops unreasonable

Indiana holds that the growing use of questions about possession of drugs during a routine traffic stop is unreasonable under the Indiana Constitution. State v. Washington, 875 N.E.2d 278 (Ind. App. 2007):

As a preliminary matter, we observe that this court has expressed its concern over “‘the increasingly common practice of police stopping vehicles for minor traffic offenses and seeking consent to search with no suspicion whatsoever of illegal contraband[.]'” Clark v. State, 804 N.E.2d 196, 201 (Ind. Ct. App. 2004) (quoting Callahan v. State, 719 N.E.2d 430, 439 (Ind. Ct. App. 1999)); see also Camp v. State, 751 N.E.2d 299, 302 (Ind. Ct. App. 2001), trans. denied (2002); Norris v. State, 732 N.E.2d 186, 191 n.1 (Ind. Ct. App. 2000). We now take the opportunity to address the propriety of that increasingly common practice of officers asking about the presence of illegal substances during an otherwise routine traffic stop.

. . .

Officer Hoffman explained that he asked Washington whether he had any “guns or drugs,” because Washington appeared nervous and did not make eye contact with him. Tr. at 7-8. It is true that nervousness may indicate potential wrongdoing. Quirk, 842 N.E.2d at 341. However, Indiana courts have been hesitant to assign significant weight to a person’s display of nervousness. Id. Indeed, our Indiana Supreme Court has observed, “Because it is not at all unusual that a citizen may become nervous when confronted by law enforcement officials, other evidence that a person may be engaged in criminal activity must accompany nervousness before the nervousness will evoke suspicion necessary to support detention.” Id.

Certainly, we recognize the concern for officer safety, and, to that end, Indiana courts have acknowledged the appropriateness of, during the course of a traffic stop, asking about the presence of guns. Lockett v. State, 747 N.E.2d 539, 543 (Ind. 2001) (officer may as matter of routine practice ask driver stopped for traffic violation if he has a weapon on his person or in his vehicle); Jarrell v. State, 818 N.E.2d 88, 92 (Ind. Ct. App. 2004), trans. denied (2005) (where weapon was found following general Lockett-type inquiry that asked whether there was anything in the vehicle that the officer should know about, no Fourth Amendment violation occurred). However, in the context of this afternoon traffic stop of a moped for a traffic infraction, which presented no indications of drugs or other criminal activity, Officer Hoffman’s inquiry that asked Washington whether he possessed drugs was not related either to the purpose of the stop or to officer safety. The State urges that because the question did not extend the length of the stop, it was not an intrusion of constitutional dimension. While we concede that Officer Hoffman’s inquiry was minimal in terms of duration, it nevertheless extended the duration of the stop. Of greater significance, however, is the fact that to allow police to routinely question individuals during a traffic stop about the presence of drugs would open the door to all sorts of inquiries, including whether the person cheated on his last year’s tax return or had in the past illegally pirated music from the internet. While tax fraud and internet piracy are–like illegal drug possession–serious concerns, routine traffic stops are not the place for such inquiries.

Indiana’s narrow trash search rule in Litchfield applies retroactively to any case pending when it was decided. Belvedere v. State, 875 N.E.2d 352 (Ind. App. 2007).*