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It’s a familiar fact pattern in the practice of criminal defense: a police officer stops a vehicle for a simple traffic infraction (let’s say a failure to wear a seatbelt, speeding, improper u-turn, or a broken taillight). Without explanation, this seemingly routine traffic stop (which ordinarily should take no longer than 15 minutes) turns into prolonged detention without any further contact from the officer and without any citation being issued.

After 20 to 30 minutes have passed, K-9 drug units arrive on scene.  A sniff search is conducted and the dog “alerts” its law enforcement handler to the presence of illegal drugs. The police then claim probable cause, conduct a search of the vehicle, and, invariably, discover marijuana, cocaine, or other controlled substances. The motorist is arrested and subsequently charged with drug possession, possession with intent to sell, or drug trafficking.

This all too common factual scenario raises an important legal question for persons charged with drug possession crimes: Can police detain a motorist beyond the time reasonably necessary to  issue a simple traffic citation in order to conduct a canine sniff search for drugs, such as cannabis or cocaine? The answer is no, and any evidence derived from the prolonged stop must be suppressed under the Fourth Amendment exclusionary rule.

Shown below is an excerpt from a Memorandum of Law filed by Jacksonville Criminal Lawyer Troy J. Webber in a similar case where police unlawfully prolonged a traffic stop in order to conduct a K-9 drug search of a motorist’s vehicle. The memorandum was filed as a supplement to an earlier Motion to Suppress evidence of drug paraphernalia.       



Defendant, xxxxxx, acting by and through undersigned counsel and pursuant to Fla. R. Crim. P. 3.190(h) and 3.190(i), files unto the Court this Memorandum of Law in Support of Defendant’s Amended Motion to Suppress Evidence, and states as follows:


On or about September 17, 2010, Defendant was driving near the intersection of Solana Street and Line Street in Melbourne, Brevard County Florida.   At 6:57 p.m., Officer xxxxxxxx x xxxxxxxxxx of the Melbourne Police Department conducted a traffic stop of Defendant’s vehicle on the basis of an alleged seatbelt violation.  Although there was no report of any suspicion of drug use, drug possession, or other unlawful activity, Officer xxxxxxxxx called for the assistance of a canine backup unit approximately four minutes into the stop.  The canine unit arrived approximately twenty-nine (29) minutes into the stop.  When the K-9 unit arrived, officers conducted a sniff search of the vehicle and were alerted to the presence of possible narcotics. This occurred over thirty (30) minutes into the stop.  A subsequent search of Defendant’s vehicle resulted in the seizure four alleged baggies containing a white powdery substance. Defendant was later charged with Possession/Use of Drug Paraphernalia (M1).



A traffic stop is a seizure within the meaning of these provisions of the United States and Florida Constitutions. Whren v. U.S., 517 U.S. 806 (1996); Delaware v. Prouse, 440 U.S. 648, 653 (1979); accord Holland v. State, 696 So. 2d 757 (Fla. 1997); State v. Jones, 483 So. 2d 433, 435 (Fla. 1986).   Such a seizure is permissible if the seizing officer has probable cause to believe a traffic infraction has occurred.  Whren, 517 U.S. at 810; Holland, 696 So. 2d at 759; State v. Wimberly, 988 So. 2d 116 (Fla. 5th DCA 2008); Parrish v. State, 937 So. 2d 1231 (Fla. 1st DCA 2006); Stone v. State, 856 So. 2d 1109 (Fla. 4th DCA 2003).  Once a police officer stops a car for a traffic infraction, the officer is then justified in detaining the driver “only for the time reasonably necessary to issue a citation or warning . . . .”  Sanchez v. State, 847 So. 2d 1043, 1046 (Fla. 4th DCA 2003) (quoting State v. Moore, 791 So. 2d 1246, 1249 (Fla. 1st DCA 2001)).

An officer who conducts a traffic stop may extend the period reasonably necessary to issue a citation or warning only where he or she has a reasonable suspicion of criminal activity or where the motorist consents to a prolonged stop.  See Maxwell v. State, 785 So. 2d 1277, 1279 (Fla. 5th DCA 2001) (stating that, unless there is a reasonable suspicion of criminal activity, an officer may not detain a vehicle any longer than is necessary to issue the citation); Sanchez v. State, 847 So. 2d 1043, 1046 (Fla. 4th DCA 2003) (stating that an officer is justified in  detaining  the  driver "only for the time reasonably necessary to issue a citation or warning, unless he has a reasonable suspicion of criminal activity); State v. Moore, 791 So. 2d 1246, 1249 (Fla. 1st DCA 2001); Thomas v. State, 614 So. 2d 468 (Fla. 1993); Cresswell v. State, 564 So. 2d 480 (Fla. 1990); United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999) (declaring that a proper traffic stop may be lengthened beyond the time related to the purposes of the initial stop only where there is “objectively reasonable and articulable suspicion” of illegal activity or where the initial detention has become a consensual encounter).   However, an officer needs more than a mere hunch before he can detain a suspect past the time reasonably required to write a citation. Eldridge v. State, 817 So. 2d 884, 888-89 (Fla. 5th DCA 2002) (citations omitted).

Where a driver is stopped for the commission of a traffic infraction, he or she may be subjected to a canine search of the exterior of the vehicle so long as it is done within the time required to issue a citation.  Nulph v. State, 838 So. 2d 1244, 1245 (Fla. 2d DCA 2003); Eldridge, 817 So. 2d at 887 (holding that, if a driver is stopped for the commission of a traffic infraction, he or she may be subjected to a canine search of the exterior of the vehicle so long as it is done within the time required to issue a citation); Maxwell, 785 So. 2d 1277; Cresswell, 564 So. 2d 480 (Fla. 1990); Welch v. State, 741 So. 2d 1268 (Fla. 5th DCA 1999).  However, Federal and Florida courts have consistently held that, where no Terry suspicion develops during a traffic stop and the stop exceeds the permissible length necessary to issue a citation or warning, a subsequent K-9 sniff of the suspect’s vehicle is unlawful. See United States v. Smith, 799 F.2d 704, 706 (11th Cir. 1986) (sniff is illegal when conducted 40 minutes after the invalid infraction-based stop, which led to an unlawful Terry detention); United States v. Pruitt, 174 F.3d 1215, 1218 (11th Cir. 1999) (sniff is illegal when conducted approximately 30 minutes after a valid infraction-based stop, which turned into an unlawful Terry detention); Maxwell, 785 So. 2d at1280 (Fla. 5th DCA 2001) (emphasis added); Davis v. State, 606 So. 2d 460, 461 (Fla. 1st DCA 1992); State v. Anderson, 479 So. 2d 816, 818 (sniff conducted approximately 30 minutes after the illegal Terry stop).

Several decisions from Fifth District Court of Appeal of Florida have invalidated traffic stops that were prolonged by police in order to allow for the arrival of canine drug units.  In Whitfield v. State, 33 So. 3d 787 (Fla. 5th DCA 2010), a defendant was stopped by highway patrol officers for speeding.  Id. at 788.  Upon conducting the stop, the officer asked a series of wide ranging questions of the defendant and then failed to issue a citation until after 27 minutes had elapsed.  Id. at 789.  One minute later, a K-9 drug unit arrived, conducted a dog sniff of the exterior of the defendant’s vehicle, and alerted officers to the presence of narcotics.  Given the Officer’s delays in issuing a citation, the Fifth District Court of Appeal held that the length of the stop was unreasonable, thereby rendering the subsequent k9 search invalid.  Id. at 795.  The Court explained that, under the facts of the case:

“[W]e do not see how the length of this stop could be justified by the circumstances. Had the officer started and completed his traffic duties instead of expending the majority of his time asking the motorist about matters having nothing to do with the issuance of a traffic citation, the stop would have been completed before the dog arrived to conduct a sniff search.”  Id. at 791.  

The Fifth District further stated that “the amount of time reasonably required to do the necessary license/warrant checks and issue the citation (even including the several minutes expended on verifying [Defendant’s] authority to drive the car) was significantly less than the twenty-nine minutes expended” [before the K9 search began].  Id. at 791.  The Court expressly rejected the state’s contention that the prolongation of the stop was rendered constitutionally permissible by the fact that the additional time taken to conduct the K-9 sniff was de minimus. Id.  at 792-93.

Similarly, in Elridge v. State, 817 So. 2d 884 (Fla. 5th DCA 2002), officers conducted a valid traffic stop of defendant’s vehicle after defendant was observed blocking an intersection.  Due to misinformation provided by the DMV regarding the status of the defendant’s out-of-state driver’s license, the officer placed the defendant in the back of the officer’s patrol car while the officer verified whether the defendant had been issued a valid license.  Id. at 885-86.  Fifteen minutes into the stop, the officer called for K-9 back-up, which arrived about ten minutes later. Id.  Upon conducting a ten to fifteen minute K-9 sniff search of the defendant’s vehicle, police discovered marijuana in the trunk.  The defendant moved to suppress the evidence obtained through the K-9 search, arguing that the length of the defendant’s detention (35 to 40 minutes) was unreasonable because it extended beyond the time to issue a traffic citation for blocking an intersection.  The trial court denied the motion, finding that the length of the detention was reasonable because of the “confusion” of the officer in dealing with the Defendant's driver's privilege.  Id.

The Fifth District Court of Appeal reversed, holding that the defendant was “wrongfully subjected to an arrest or search predicated upon a mistake” made by the DMV, an arm of law enforcement . . .”  Id. at 888.  The Court found that the defendant’s continued detention while the officer was dealing with the DMV’s erroneous information allowed the defendant to be subjected to a search where one otherwise would not have occurred.  Id.  Had the officer written the citation without the delay, Eldridge would have been on his way long before the canine unit ever arrived.  Id.  As for the state’s contention that the officer had reasonable suspicion to further detain the defendant based on his “nervousness upon being stopped, his failure to provide a specific street address for his residence, and his possession of a large roll of $100 bills in his pocket,” the Court concluded that these observations were insufficient to establish reasonable suspicion and constituted nothing more than a “hunch” regarding possible criminal wrongdoing.  See also Maxwell v. State, 785 So. 2d 1277, 1279 (Fla. 5th DCA 2001) (holding that a traffic stop was unlawful where a police officer delayed a stop by eleven minutes in order to ask unnecessary questions, review applicable statutes, and allow a K9 unit to sniff around the stopped vehicle. The court concluded that, had the deputy completed his traffic duties as required, the K-9 unit would not have arrived to search and locate drugs).

In the instant case, police officers conducted a routine traffic stop of Mr. XXXXXXXX in order to issue a traffic citation for not wearing a seatbelt.  Although Officer XXXXXXXX had probable cause to conduct the initial stop, the stop could last no longer than was reasonably necessary to write and issue a routine traffic citation.   There was no allegation that police had any articulable suspicion of drug use, drug possession, or other unlawful conduct, and thus police had no valid grounds to prolong the stop in order to conduct a further search or inquiry.  There was furthermore no allegation that Mr. XXXXXXXXX had consented to a prolonged stop while the officer waited for the arrival of a K-9 drug unit and waited while the K-9 sniff was conducted.

Despite the absence of consent or reasonable suspicion of illegal activity, Officer XXXXXXXX detained Mr. XXXXXXXXX for over thirty (30) minutes before alleged illegal narcotics were detected through the K9 sniff search.  The process of issuing a simple citation for an experienced police officer should take no more than fifteen minutes.  There was no allegation of any difficulty locating information about Defendant and no allegation that delays were in any way caused by Defendant.

The evidence in the present case amply supports an inference that Officer XXXXXX purposefully prolonged the stop of Mr. XXXX in order to allow for the arrival of the K-9 unit and the execution of a sniff search.  The police CAD report shows that Officer XXXXXX radioed for K-9 back-up just minutes into the initial stop without even making contact with Mr. XXXX.  Officer XXXXXXXX had no suspicion of criminal wrongdoing, which is suggestive of an intent to conduct the K-9 sniff search regardless of his on-scene observations.  When the K-9 unit arrived 29 minutes after the stop, Mr. XXXX had still not received his citation and there was no indication that a citation was about to be issued.

In the video footage of the traffic stop, Officer XXXXXX is never shown carrying citation paperwork to Defendant.  Only a brief conversation takes between the officer and Defendant, thus ruling out the possibility that the delays were engendered by legitimate questioning directly related to the purposes of the stop.  On two occasions in the video (20:57 and 22:25) Officer XXXXX is heard communicating with dispatch regarding the arrival of the of the K-9 unit.  Approximately twenty-nine (29) minutes into the video, he is shown standing outside of his patrol car, apparently waiting to greet or confer with the K-9 officer.  While outside the car, he is not shown holding any citation paperwork or even a pen or pencil.  Instead, Officer XXX walks to Defendant’s car and asks Defendant and the passenger to step out.  As with the other actions taken by the officer, this request was in furtherance of the K-9 sniff, not the issuance of a traffic citation.   Thus, the video footage clearly demonstrates that Officer XX, in repeatedly communicating with dispatch regarding the K-9 unit, monitoring the K-9 unit’s arrival, stepping out of his police car, ordering Defendant to exit the car to allow for the sniff search, and in conferring with the K-9 Officer, repeatedly delayed the performance of his citation-related duties in order to make way for the K-9 search.

Clearly, under Eldridge, Anderson, Whitfield, Pruitt, and other Federal and Florida case decisions, the time period during which Mr. XXXXXXX was detained exceeded the time reasonably necessary to issue a routine traffic citation.  Even assuming, arguendo, that the undisputable delays shown in the video were de minimus, this would not, under Whitfield, excuse Officer XXXXXX’s actions.  As a result, the continued detention of Mr. XXXXXX and the subsequent search of his vehicle was unlawful, and all evidence derived from the unlawful search must be suppressed.

WHEREFORE, Defendant respectfully requests that this Honorable Court enter an Order suppressing the evidence outlined in Defendant’s Amended Motion to Suppress.