Protracted Efforts to Locate a Detector Dog Team Spoiled the Stop

United States v. Frazier, 2022 WL 1099362 (10th Cir. 2022)

A trooper spotted Antoine Frazier driving at a speed between four and eight miles faster than the posted limit and twice observed Frazier change lanes after signaling for less than the two seconds required under state law. The trooper stopped Frazier, looked through the rear vehicle window and saw two bags, one of which was a duffle bag that “appeared to be somewhat new.” Frazier rolled down the driver side window about four inches. When the trooper asked him to roll it down more, Frazier proceeded to roll the window down another inch or two. The trooper noticed a bottle of spray deodorizer in the center console.

Frazier produced a driver’s license issued in Iowa. The trooper noticed Frazier had an identification card from another state in his wallet. Frazier showed the trooper it was an identification card from neighboring Missouri and bore the same information as his Iowa license. Frazier then handed over the vehicle’s registration, which showed that it was a rental, but was unable to find the rental agreement.

The trooper stopped the conversation for a moment to peer into the back of the car. As he did so, Frazier was on his phone looking up the rental company’s confirmation. The trooper asked Frazier where he was coming from and, after a momentary pause, Frazier said he was coming from his sister’s house in California. When the trooper repeated the question, Frazier looked up from his phone, repeated his answer and told the trooper he had found the contact number for the rental company. Frazier then offered the phone to the trooper to call to verify the rental. The trooper cut him off and asked him to come back to his car. Frazier declined and the trooper interrupted him again, asking how long he had been at his sister’s. Again pausing for a moment, Frazier asked the trooper why he was asking these questions, to which the trooper responded, “Because I ask everyone the same questions.”

After another pause, Frazier again asked if the trooper wanted the rental company phone number. The trooper said he did and began taking down the information. Frazier explained he had been in the rental for a month because his car was in a wreck. The trooper then asked for Frazier’s phone number and Social Security information. As the trooper jotted down the information, Frazier turned back to his phone search. After the trooper finished and while Frazier was still looking at his phone, the trooper abruptly asked him where in California he had been. Frazier paused, looked up and said he had been in Los Angeles.

Four minutes after the initial contact, the trooper returned to his patrol car. Rather than starting to issue a citation, he immediately began trying to contact a canine handler with the local sheriff’s office. The trooper tried contacting the deputy via the instant-messaging system on his car computer. When the deputy failed to respond to several messages, the trooper tried to call him on the radio. When the deputy still failed to respond, the trooper asked dispatch to locate him and send him to the scene. These attempts to contact the deputy took three minutes. About a minute later, the deputy called back and agreed to respond to the scene.

About seven minutes into the stop, the trooper began to work on the citation. He asked dispatch to run a criminal history check on Frazier. Immediately after that, the trooper logged into DEASIL, a database of information gleaned from the Drug Enforcement Administration’s national network of license-plate readers. The trooper saw that Frazier’s vehicle had been recorded heading west on Interstate-70 in Kansas three days prior. Now Frazier was in Utah, headed in the opposite direction.

About 14 minutes after the initial stop, the trooper called the rental company and confirmed Frazier’s prior statement that he had been renting the vehicle for about a month. That exchange took about two minutes. As the trooper was speaking with the rental company representative, the deputy and his detector dog arrived. Approximately 20 minutes from the initial stop, the detector dog performed an exterior sniff of Frazier’s car. The dog gave a positive response for the odor of controlled substances.

During the sniff, a records check revealed Frazier had pled guilty in 2006 to manslaughter. A frisk search revealed a .22 caliber pistol in Frazier’s pants pocket. Frazier was ultimately arrested for being a felon in possession of a firearm, and for possession of fentanyl and cocaine with the intent to distribute.

There may not have been an alternative line of permissible questioning that would have allowed time for a detector dog team to arrive, assuming the trooper did not prolong the stop to locate the team and relied on a quick radio request to dispatch.

Frazier claimed the evidence obtained from the search was inadmissible because the trooper improperly prolonged the traffic stop to facilitate a dog sniff and thereby obtain probable cause to search his vehicle. The trial court denied the motion to suppress the evidence. The appellate court reversed, finding the trooper departed from the traffic-based mission of the stop by arranging the dog sniff, calling it “an investigative detour that was unsupported by reasonable suspicion and that added time to the stop.” The court held that the trooper’s consultation of the DEASIL database was an additional investigative detour, aggravating an ongoing violation.

The prosecution argued that the trooper had already developed a reasonable suspicion of drug trafficking when he called for a detector dog. The court weighed the trooper’s testimony that the duffle bag he saw in the back of the car was indicative of drug trafficking, along with the presence of the air freshener in the console and Frazier’s failure to completely roll down his window. The court noted it had previously held “that the presence of a bag in a vehicle adds nothing to the reasonable suspicion calculus.” Additionally, though the window was not fully down, it was lowered far enough to hand things back and forth and for the trooper to smell any suspicious odors, which the trooper did not mention.

The trooper testified that he perceived Frazier’s answers to questions as suspicious. Notwithstanding, the court held the trooper “cited no meandering, inconsistent, or illogical answers” under the circumstances. The court also made short work of the prosecution’s assertion that having two identification cards was suspicious: “As neither the district court nor the government has supplied , we afford no weight to the fact that Mr. Frazier had valid identification from two different states.”

Finally, the court discounted Frazier’s inability to present the rental agreement: “A driver’s inability to produce a rental agreement may justify continued detention for the purpose of investigating his authority to drive the vehicle, but it cannot justify continued detention for the purpose of investigating drug trafficking.” The court concluded, “Stripped of those facts that must be disregarded as completely innocuous, we are left with the trooper’s hunch that Mr. Frazier was trying to hide something and the fact that he was driving a rental car. Reasonable suspicion is a low bar, but it is not that low. Consequently, because the trooper lacked reasonable suspicion to extend the stop by several minutes to arrange for the dog sniff, Mr. Frazier’s seizure violated the Fourth Amendment.”

Could the trooper have conducted the stop in some other way that might have allowed for a lawful detector dog sniff? Consider the following tasks that can be accomplished during any lawful traffic stop.

  • Take the time necessary to determine “whether to issue a traffic ticket” and “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 v. United States, 575 U.S. 348 (2015)).
  • Ask about criminal history—such questions are within the “negligibly burdensome” inquiries an officer needs to make “in order to complete his mission safely,” allowed by Rodriguez.
  • Ask routine questions about travel plans (United States v. Martin, 422 F.3d 597 (7th Cir. 2005)). An officer may ask questions unrelated to the initial purpose for the stop, provided the questions do not unreasonably extend the amount of time the subject is detained.
  • Ask about the relationship of the driver to any passengers (United States v. Rivera, 867 F.2d 1261 (10th Cir. 1989)).
  • Require the driver to produce a driver’s license and vehicle registration (United States v. Hollins, 685 F.3d 703 (8th Cir. 2012)).
  • Require proof of insurance for the vehicle (United States v. Brigham, 343 F.3d 490 (5th Cir. 2003)): “Officer is authorized to require the driver of the vehicle to produce a valid driver’s license and documentation establishing the ownership of the vehicle and that required public liability insurance coverages are in effect on such vehicle.”
  • Ask the driver to sit in the patrol car for questioning and for issuance of a citation (United States v. Ramos, 42 F.3d 1160 (8th Cir. 1994), cert. denied, 514 U.S. 1134 (1995)). Though lawful, bringing the driver back to the car may or may not be tactically sound.
  • Request a computer check of the driver’s criminal history. The check should be requested at the initial stage of the stop, at the same time that driver’s license and registration checks are requested, and the check may not unreasonably delay the stop (United States v. Estrada, 459 F.3d 627 (5th Cir. 2006); United States v. Salazar, 454 F.3d 843 (8th Cir. 2006)).
  • Inspect the VIN in the least intrusive manner possible and compare it to the VIN shown on registration documents or computer records (New York v. Class, 475 U.S. 106 (1986)). An officer may require the driver to move an item blocking the view of the VIN.

There may not have been an alternative line of permissible questioning that would have allowed time for a detector dog team to arrive, assuming the trooper did not prolong the stop to locate the team and relied on a quick radio request to dispatch. Perhaps the trooper could have issued a warning citation for the speed and lane signal violations, released Frazier and conducted additional investigation, possibly communicating the additional information to another officer down the road. Or perhaps, as may well be the case, this is one situation where the facts could not justify a detention for an investigation.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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