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Traffic Stops as a Pretext for Drug Searches

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Police often use traffic stops for minor, motor vehicle violations as an opportunity conduct drug searches.

There are highways and roadways that are perceived to be major routes for drug trafficking.  Consequently, the police will engage in drug interdiction activities in these areas seeking to profile vehicles that may fit into this category.  However, as long as the police can identify a legal basis for a traffic stop (some traffic infraction like speeding, failing to use a turn signal, expired registration or inspection, a burnt out headlight or tail light or license plate light), they are at least in a lawful position to actively engage and make contact with the vehicles occupants.

There are common tactics that the police will utilize in an effort to conduct a vehicle search for drugs even where they do not have real evidence or proof that illegal drugs are being transported in the car.

Stop, Warn, Re-Engage

One common tactic police use is what we will refer to as the "Stop, Warn, Re-Engage" method.  This tactic is regularly used along stretches of I-81 in Harrisburg, Dauphin County, Pennsylvania.

The "Stop, Warn, Re-Engage" pattern goes something like this:  

The police will identify a "suspect vehicle"; for example, a car (maybe a rental) with out-of-state plates traveling at night.  The car will be stopped for a motor vehicle violation like following another car too closely.  

Police will initiate contact with the occupant(s).  While obtaining license, registration, and proof of insurance, the police will question the occupant(s) about there presence in the area, intended destination, purpose of travel, and other matters.  When running their information, the police may look for a history of prior drug convictions.

If the police form a "hunch" that drugs are being transported in the vehicle, but don't have enough evidence to search the vehicle without consent, they will ask the driver to exit the vehicle.  A warning for the traffic infraction will be given.  The driver will be told they are "free to leave."  Once contact is broken with the driver returning to their car, the police will re-enage by asking if they mind answering any questions.  If the driver complies, the police will ultimately use this opportunity to obtain consent to search the car for drugs or other contraband.

Sometimes the search will lead to a major drug seizure and arrest.  Other times it may result in something that falls far short of "drug trafficking," like possession of a small amount of marijuana or nothing at all.

The police use this tactic to attempt to create a "mere encounter" because it represents a reduced level of intrusion where no evidence of any crime is required for law enforcement to engage in additional contact with "the suspect."

Whether or not you are found in possession of drugs or contraband when encountering this situation, the reality is that both our state and federal constitutions afford us ALL the right to be free from unreasonable searches and seizures.  Recently, the Superior Court of Pennsylvania recognized and enforced this right in a case where the police officer engaged in the "Stop, Warn, Re-Engage" tactic in order to obtain consent to search a vehicle and seize drugs.

Commonwealth v. Ngyuen

In Commonwealth v. Tam Ngyuen, 2015 Pa.Super 98, a trooper with the Pennsylania State Police initiated a traffic stop after "clocking" Ngyuen's vehicle traveling at an excessive speed and following too closely.  

After obtaining license and registration, the trooper had Ngyuen exit the vehicle to question him.  The trooper noted that he was "overtalking," "overly apologetic," and did not make eye contact.  After running his name, the trooper identified he had "numerous prior drug arrests."

Based on trooper's experience, he determined that these were all signs consistent with drug trafficking.  In response, he issued a warning to Ngyuen, returned his paperwork, and told him he was "free to leave."  However, before Ngyuen re-entered his vehicle, the trooper re-engaged and obtained consent to search the vehicle and frisk him.  

Incident to the searches, the police seized pills, cocaine, and a large amount of cash.  The defendant was charged with Possession With Intent to Deliver (PWID) and other drug offenses.

Mere Encounter v. Investigative Detention

In its opinion, the Pennsylvania Superior Court analyzed the 3 types of police-citizens contact for Fourth Amendment purposes: 1) mere encounter; 2) investigative detention; and, 3) custodial detention. (To learn more, read "3 Levels of Police-Citizen Interaction You Need to Know".)

The court determined that the trooper's use of the "Stop, Warn, Re-Engage" tactic created an "investigative detention" requiring "reasonable suspicion" for the second contact.  Since no new evidence of criminal activity was acquired by the police between the first and second contact, the court determined no "reasonable suspicion" existed and, thus, the detention was illegal.

Validity of Consensual Search

The court's analysis did not end in Ngyuen with the finding of an illegal detention because the drug evidence was seized incident to a consensual search.

"When a consensual search is preceded by an illegal detention, 'the government must prove not only the voluntariness of the consent under the totality of the circumstances, but ... must also establish a break in the causal connection between the illegality and the evidence thereby obtained.'"  Id.

"In determining whether the consent has been vitiated by the taint of the preceding illegal detention, the reviewing court must consider: '(1) the temporal proximity of the illegal detention [and the defendants' consent]; (2) the presence of intervening factors between the two events; and (3) the circumstances surrounding, and the nature of, the official misconduct.'"  Id.

Upon consideration of the facts in Ngyuen, the court determined that there was not a sufficient separation between the illegal detention and consensual search to eliminate the taint.  Said another way, the consent to search was a direct result of the illegal detention.  Consequently, the court held that the consent was invalid, resulting in an illegal search, and requiring suppression of evidence.  (To learn more about suppression of evidence, read "What is a Motion to Supress Evidence?".)


About the Author:

Attorney Shawn M. Curry focuses his practice exclusively on criminal defense.  For over 8 years, he has been helping people accused of crimes throughout Central Pennsylvania.  As a result, he has acquired extensive knowledge and experience surrounding drug crime defense, as well as search & seizure issues.

If you or someone you care about has been charged with a crime, contact Shawn Curry Law today: 717-525-8733.

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