Newsbrief:
Federal
Appeals
Court
Says
Nervousness
Not
Enough
to
Prompt
Driver
Search
10/31/03
Being nervous during a traffic stop is not enough grounds for police to detain and search a driver, a federal appeals court ruled last week. In a decision handed down on October 22, the 11th US Circuit Court of Appeals dismissed federal prosecutors' appeal of a lower court ruling throwing out the evidence against two Alabama men after an Alabama state trooper cited only the driver's "nervousness" and "a hunch" for holding them after he had finished writing the ticket for which they had been stopped. Trooper John Colston testified that he initially stopped Jessie Perkins Jr. and passenger Johnny Scott because their car had drifted onto the shoulder of Interstate 20. After determining that Perkins was not intoxicated or too sleepy to drive, Colston wrote him a warning ticket. But Colson noted that Perkins seemed nervous, breathed rapidly, was evasive, and gave slightly different answers to questions about his destination than did Scott. Colson repeatedly asked both men if they were carrying drugs, and both repeatedly denied they were. Perkins also repeatedly refused to consent to a search of the vehicle -- until Colson threatened to call in a drug dog, at which point Perkins caved and admitted they had drugs hidden in the console. Colson testified that the men were not free to leave as he questioned them after writing the warning ticket. That was going too far, said the 11th Circuit. Citing the venerable Terry vs. Ohio case as controlling, the court noted that "a traffic stop must be 'reasonably related in scope to the circumstances which justified the interference in the first place'" and "may not 'last any longer than necessary to process the traffic violation' unless there is articulable suspicion of other illegal activity." In other words, Trooper Colston was bound by law to let the men be on their way once he had written the warning ticket because he could not say he had any knowledge of any illegal activity, merely a hunch. The government argued that Perkins' nervousness and evasiveness were grounds enough to meet the bar of "reasonable suspicion" that a crime was being committed, but the 11th Circuit did not buy that argument. "There is no reason why Colston should have reasonably suspected that Perkins' nervousness was tied to anything other than the fact that he was being detained by an authority figure with police power over him," the court's opinion noted. The court also addressed the fact that Trooper Colston's hunch that Perkins and Scott were carrying drugs was ultimately proven correct. That is "irrelevant for Fourth Amendment purposes," the court opined. "To hold otherwise would open the door to patently illegal searches by government officials, who would attempt to justify the legality of their conduct after-the-fact." The 11th US Circuit Court of Appeals decision is binding on federal courts in Alabama, Florida, and Georgia. Visit http://www.ca11.uscourts.gov/opinions/ops/200215891.pdf to read the opinion online.
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