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De Minimis Delay for Traffic Stop

If an officer stops a driver for reasonable suspicion of impaired driving, but then the officer subsequently determines that the driver is not impaired, must the officer immediately let the driver go? It depends on whether there is a drug-sniffing dog on the scene.

The Fourth Amendment protects us against unreasonable searches and seizures and states that

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The U.S. Supreme Court has held that a “traffic stop is a seizure ‘even though the purpose of the stop is limited and the resulting detention quite brief.’” To make a traffic stop, an officer must have "reasonable, articulable suspicion that criminal activity is afoot." This standard is less demanding than probable cause and “requires a showing considerably less than preponderance of the evidence." The North Carolina Supreme Court has stated that reasonable suspicion “is satisfied by ‘some minimal level of objective justification’” but must “be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training." To determine if reasonable suspicion exists, a court must look at the totality of the circumstances.

However, just because a law enforcement officer has reasonable suspicion to initially stop a driver does not mean that the law enforcement officer can unreasonably detain the driver. The North Carolina Court of Appeals has explained that

Generally, the scope of the detention must be carefully tailored to its underlying justification. Once the original purpose of the stop has been addressed, there must be grounds which provide a reasonable and articulable suspicion in order to justify further delay.

State v. Falana (NC App 1998)

In Falana, the officer stopped the defendant because he had been weaving. The officer determined that the defendant was not impaired and issued him a warning ticket and returned his papers. After returning the papers, the officer then conducted a dog-sniff of the defendant’s car, which resulted in the officer finding cocaine in the car. The court of appeals determined that the officer lacked reasonable suspicion to detain the defendant after issuing the warning ticket and returning his papers.

There were several cases after Falana which followed this reasoning, none of which mentioned the concept of a “de minimis” delay. However, in 2005, the United States Supreme Court decided the case Illinois v. Caballes. In Caballes, the defendant was stopped for speeding. The trooper who stopped the defendant radioed to dispatch to report the stop, and a drug taskforce officer heard the call and went to the scene with his drug dog. While the trooper wrote the speeding ticket, the drug taskforce officer walked around the car with the dog. The dog alerted, and marijuana was found in the trunk. “The entire incident lasted less than 10 minutes.”

The Court held that “conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent's constitutionally protected interest in privacy.” In holding that the dog sniff was constitutional, the Court reasoned that

the use of a well-trained narcotics-detection dog—one that “does not expose noncontraband items that otherwise would remain hidden from public view,”—during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement.

In 2007, the North Carolina Court of Appeals looked at another dog-sniff case, State v. Brimmer. In Brimmer, the drug dog arrived before the defendant received his warning ticket. After the officer gave the defendant his warning ticket and papers back, the drug dog sniffed the defendant’s car, which resulted in the discovery of marijuana. The dog-sniff took between one-and-a-half and two minutes. The court of appeals applied the “de minimis” rule and held that “if the detention is prolonged for only a very short period of time, the intrusion is considered de minimis. As a result, even if the traffic stop has been effectively completed, the sniff is not considered to have prolonged the detention beyond the time reasonably necessary for the stop.”

The 2012 case State v. Sellars was another dog-sniff case, and the court of appeals discussed both Falana and Brimmer. In Sellars, the defendant was stopped for twice weaving out of his lane. The detective could tell immediately that the defendant was not impaired, but he noticed that the defendant’s heart was beating fast and his hand was shaking when he handed the detective his license. However, the defendant did not display “extreme nervousness.” When the detective entered the defendant’s information into the computer, an “alert” appeared which identified the defendant as a “drug dealer” and “known felon.” After seeing this “alert,” the detective decided to have the dog conduct an open-air sniff of the car, which resulted in the the discovery of cocaine in the car. From the point at which the detective issued a warning ticket to the defendant and returned his license to the point at which the dog alerted as to the presence of narcotics in the defendant’s vehicle was four minutes and thirty-seven seconds.

The court held that difference between the reasoning in Falana and Brimmer was due to the fact that Caballes and other federal cases interpreting Caballes were not in existence when Falana was decided. However, Brimmer appropriately “followed and adopted the de minimis approach” that the federal courts used in the cases based on Caballes.

In the analysis of prior caselaw in Sellars, the court grouped with Falana as “prior to the de minimis approach” case, those which did not involve a dog-sniff. This would seem to imply that any de minimis delay is permitted, not just a de minimis delay to complete a dog-sniff. However, this is dicta in the Sellars opinion and the U.S. Supreme Court framed the issue narrowly in its holding as “[w]hether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.”

Earlier this year, the court of appeals weighed in on this issue again in State v. Cottrell. In that case, the court held that “the de minimis analysis applied in Brimmer and Sellars should [not] be extended to situations when, as here, a drug dog was not already on the scene” because “Brimmer was based, in part, on Caballes' holding that a dog sniff conducted during an otherwise lawful stop did not implicate the Fourth Amendment, and the reasoning of that holding is inapplicable in the absence of an actual dog sniff or the immediate availability of a drug dog.”

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