≡ Menu

Traffic Stop Duration: Passenger

State v. Jamie L. Salonen, 2011 WI App 157 (recommended for publication); for Salonen: Robert J. Wells, Jr.; case activity

¶1        The trial court in this case granted Jamie L. Salonen’s motion to suppress evidence obtained after she asked to leave the scene of a roadside stop of a vehicle in which she was a passenger, which request was denied by police.  A passage in Arizona v. Johnson, 555 U.S. 323, 333 (2009), explains that a lawful roadside stop “ordinarily” begins when a vehicle is pulled over for a traffic violation and ends when the police no longer have further need to control the scene, at which time the driver and passengers are free to leave.  Therefore, the State asserts that Salonen’s request to leave—during the stop, but after she had given identification and police found no warrants were outstanding for her—had no basis in law.  We reverse, but we reject the theory that the Johnson language creates a bright-line rule that police always have the authority to detain passengers for the duration of a roadside stop.  Reading Johnson as a whole, it leaves the door open for exceptions to the general rule that passengers are reasonably detained for the duration of a stop.  Nonetheless, we hold that Salonen’s stop was reasonable under the totality of the circumstances.

Almost 12 minutes into the stop, while the officer was still writing the citation, Salonen tried to leave the scene and was told she couldn’t. Almost 3 minutes later, a dog alerted on the seat where Salonen had been sitting. A subsequent search of the car led to her arrest. First things first: a dog sniff isn’t a search – ¶9, citing State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748 – and the basis for the stop isn’t in question, so suppressibility turns on whether the police unnecessarily prolonged Salonen’s detention. And that question turns on whether her request to leave the scene should have been honored.  As the blockquote above indicates, although the court rejects the idea that the police may always detain a passenger for the duration of a routine traffic stop, it recognizes that such a detention is “ordinarily” proper, ¶¶10-13. Consistent with the latter idea, the court articulates a balancing test that, because ti heavily weights officer safety, will typically come down in favor of the intrusion (as here):

¶14      Applying the balancing test here, we are satisfied that the officer safety component outweighed the minimal intrusion Salonen was subjected to by ordering her to stay on the scene.  When Salonen asked to leave, she was speaking with a backup officer who knew only that he was called to the scene to assist a K­9 officer in securing the scene for a dog sniff.  So, the officer to whom Salonen was speaking knew only that the stop had some relationship to the possibility of illegal drugs being involved.  As a matter of common sense, he obviously saw his job as being to keep the scene secure while his colleagues investigated whether evidence of a more serious crime might be uncovered. As such, based on the reasoning in Johnson and Wilson, the “motivation of a passenger to employ violence to prevent apprehension of such a crime [was] every bit as great as that of the driver.” Johnson, 555 U.S. at 331-32 (quoting Wilson, 519 U.S. at 414)).  It would be unreasonable to expect this back-up officer to make the decision that there was no longer a police safety component given the limited information that this officer had.  He simply was not in charge of the scene.

¶15      And it is not as if the officer’s refusal created some monumental intrusion to Salonen.  The resulting dog sniff kept Salonen on the scene for a maximum of two minutes and fifty-five seconds more before the dog revealed drugs near her seat in the car.  During that time, she was simply told to remain at the scene, without being put in handcuffs or having her liberty restrained in any other way.  The officer assured her that if she was late to work, he would be able to get her boss an excuse.  So, the intrusion on Salonen was minimal.  We are convinced that the stop fell within the parameters of what Johnson says is “ordinarily” reasonable.  We see no facts in this case that warrant an exception to Johnson’s general guideline that the detention of a passenger ordinarily remains reasonable for the duration of the stop.  See Johnson, 555 U.S. at 333.  We therefore reverse the trial court’s decision granting Salonen’s motion to suppress and remand for further proceedings.

Continued detention of the passenger is “ordinarily” reasonable: officer safety is paramount, and intrusion on the passenger merely “incremental.” In other words, Salonen began with two strikes against her. The length of the delay (“a maximum of two minutes and fifty-five seconds more”) was strike three. De minimis non curat lex (the law doesn’t concern itself with trifles), and the court perhaps thought the length of this delay a mere trifle. Compare, e.g., Arias, 2008 WI ¶47 (delay of routine traffic stop by 78 seconds so dog sniff could be performed reasonable: “The incremental extension of time expended in this stop that was occasioned by the dog sniff was a brief 78 seconds”).

{ 0 comments… add one }

Leave a Comment