United States v. Jamar HunterUnited States v. Jamar Hunter
Meaghan Flannery
Matthew T. Newcomer [Argued]
Jennifer A. Williams
OFFICE OF UNITED STATES ATTORNEY
Eastern District of Pennsylvania
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellant
Salvatore C. Adamo, Esq. [Argued]
1866 Leithsville Road
#306
Hellertown, PA 18055
Counsel for Appellee
OPINION
RESTREPO, Circuit Judge
Law enforcement officers conduct traffic stops every day. No matter how minor the apparent infraction, every traffic stop must comply with the Fourth Amendment. It wraps every person, and every traffic stop, with a cloak of constitutional protection. The Fourth Amendment also permits the consideration of officer safety when confronting a potentially dangerous situation. Weighing those concerns, we must decide whether the use of a criminal record check, lasting approximately two minutes, can be an objectively reasonable safety precaution related to the mission of the traffic stop under Rodriguez v. United States, 575 U.S. 348 (2015) and the Fourth Amendment.
It can. We therefore will reverse the District Court‘s grant of the suppression motion and remand for further consideration.
I.
A.
This traffic stop, which lasted less than eight minutes in its entirety, began like
Clemons returned to his patrol car to perform a routine license and warrant check, also known as a “CLEAN N.C.I.C.” check.3 This check revealed that both men had valid driver‘s licenses and no outstanding arrest warrants. It is at this point that Hunter alleges the mission of the traffic stop ended and Clemons no longer had constitutional authority to prolong the stop.
Immediately after the routine check, Clemons performed an additional check that extended the traffic stop: a computerized criminal history check, also known as a “Triple I” check.4 He spent around five minutes conducting both checks in his patrol car, with the Triple I check taking approximately “a minute or two.” J.A. 254. This computerized criminal history check revealed that both Hunter and the passenger had significant criminal histories, including firearm and drug trafficking convictions.
Armed with this information, Clemons returned to Hunter‘s car. The officer ordered Hunter out of the car so that he could perform a Terry frisk, during which he discovered a loaded Glock-45 semi-automatic handgun in Hunter‘s waistband. He immediately arrested Hunter. The entire traffic stop lasted less than eight minutes.
B.
Following his arrest, a federal grand jury indicted Hunter for possession of a firearm as a convicted felon, in violation of
We address both arguments in turn.
II.5
A.
The Fourth Amendment protects individuals against unreasonable searches and seizures.
In granting the suppression motion, the District Court erroneously applied a subjective standard rather than the constitutionally required objective standard. Specifically, the District Court considered Clemons’ subjective testimony that he routinely, but not always, performs the criminal history check during traffic stops. The District Court credited Clemons’ testimony that he would sometimes employ this check “to bolster [his] reasonable suspicion.” J.A. 25, 255. Grounding its reasoning in this subjective testimony, the District Court concluded that “[t]he criminal background check was thus not tied to the traffic stop‘s mission.” J.A. 13.
Clemons’ subjective intent is immaterial and should not be considered when evaluating whether the use of the criminal history check, when viewed objectively, was justified under the circumstances. Scott v. United States, 436 U.S. 128, 138 (1978) (“[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer‘s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.“). The District Court therefore erred as a matter of law, and we will reverse.
B.
We review de novo the question of whether the use of the criminal history check in this case was objectively reasonable and proper under Rodriguez. To be reasonable, a traffic stop must be justified at its inception and the officer‘s actions during the stop must be reasonably related to “the mission of the stop itself.” Rodriguez, 575 U.S. at 356. Rodriguez defines a traffic stop‘s mission to include completing “tasks tied to the traffic infraction,” such as issuing a traffic ticket, checking the driver‘s license and any outstanding warrants, and inspecting registration and insurance. Id. at 354-55. Rodriguez also permits the use of “certain negligibly burdensome precautions” when done to complete the mission
questioning,7 violate the Fourth Amendment when performed without reasonable suspicion.
In this case, the parties agree that the criminal history check does not qualify as a routine task tied to the traffic infraction, and the Government concedes that Clemons “had completed the tasks specifically tied to the traffic stop when he finished the computerized N.C.I.C. driver‘s license and warrant checks.” Gov‘t Br. at 24. The Government therefore argues that the check was objectively reasonable under Rodriguez because it was part of the stop‘s mission due to officer safety.
Officer safety during a traffic stop has been a longstanding and recognized concern. See, e.g., Arizona v. Johnson, 555 U.S. 323, 330 (2009) (recognizing “that traffic stops are especially fraught with danger to police officers.“) (internal citation omitted). Rodriguez recognized this concern and went one step further by concluding that the “officer safety interest stems from the mission of the stop itself.” Rodriguez, 575 U.S. at 356. Our Court has adopted this rationale. See Clark, 902 F.3d at 410 (“Tasks tied to officer safety are also part of the stop‘s mission when done out of an interest to protect officers.“).
Rodriguez explained that “an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely” and implied that conducting criminal record checks could be done in furtherance of officer safety. 575 U.S. at 356 (citing United States v. Holt, 264 F.3d 1215, 1221-22 (10th Cir. 2001) (en banc), overruled on other grounds by Muehler v. Mena, 544 U.S. 93 (2005)). The fact that Hunter and Davis outnumbered Clemons enhances the
safety concerns we must consider. See Maryland v. Wilson, 519 U.S. 408, 413 (1997) (“[T]he fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.“). Viewing the circumstances as they existed at the scene of the stop, we conclude that it was reasonable for an officer to conduct this check pursuant to safety concerns.
Post-Rodriguez, the First, Fourth, Seventh, Eighth, Ninth, and Tenth Circuits have all concluded that a routine criminal record check during a traffic stop is lawful under the Fourth Amendment.8 We agree
to complete the mission of the traffic stop safely,” a criminal history check is permissible and within the bounds of the Fourth Amendment. United States v. Dion, 859 F.3d 114, 127 n.11 (1st Cir. 2017).
We therefore hold that this criminal record check—which lasted approximately two minutes and was supported by objectively reasonable safety concerns—was a negligibly burdensome officer safety precaution that falls squarely within the confines of the stop‘s mission according to Rodriguez. However, we acknowledge that under other circumstances, a criminal record check may be unreasonable if it is more than negligibly burdensome and thus exceeds the stop‘s mission. See Rodriguez, 575 U.S. at 354 (“Authority for the seizure ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.“).
As Judge McKee emphasizes in his concurring opinion, the U.S. Supreme Court has afforded “police officers unbridled discretion to order drivers out of their cars during traffic stops in the name of officer safety.” See McKee concurring opinion § I.A & n.23 (citing Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977)). Such a concern is understandable and is rightly accorded consideration as judges weigh whether a traffic stop comports with the strictures of the Fourth Amendment.
Unbridled discretion exercised by any officer of government will always be subject to mischief—or worse. It
is incumbent upon us as judges to recognize that reality and to therefore be painstaking in our attention to all the evidence presented in traffic stop cases and the circumstances out of which they arise.
III.
The District Court erred as a matter of law by applying a subjective reasonableness standard when evaluating whether the criminal record check in this case was part of the stop‘s mission. We will therefore reverse the District Court‘s order granting the motion to suppress and remand for further proceedings consistent with this opinion.
McKEE, Circuit Judge, concurring.
I join my colleagues’ opinion in its entirety. I write separately, however, to emphasize the narrowness of our holding, to express concern about the likely consequences of our decision, and to examine aspects of our traffic stop jurisprudence, and Rodriguez v. United States,1 that warrant further discussion.
After hearing the testimony of the arresting officer, the District Court held that the officer lacked reasonable suspicion to perform a criminal record check of Hunter and Hunter‘s passenger. We reverse because Supreme Court precedent indicates that the criminal record check was part of the mission of the original traffic stop. Therefore, the officer did not need reasonable suspicion to perform the criminal record check.
I.
Our holding recognizes that police have limited discretion to extend a traffic stop for “a minute or two”2 to conduct a criminal record check in the interest of officer safety.
As my colleagues and I stress, this record check lasted no more than two minutes. Extending this traffic stop for that length of time is consistent with the Supreme Court‘s opinion in Rodriguez. There, the Supreme Court explained that an officer may take “negligibly burdensome precautions” to complete a traffic stop safely3 but did not specify when such precautions become more than negligibly burdensome and thus inconsistent with the limitations imposed by the Fourth Amendment.
It is important to note that studies have shown that police tend to subject motorists of color to more burdensome procedures than their White counterparts. Our jurisprudence has rarely recognized or addressed this unfortunate reality.
A.
Traffic stops are the most common form of involuntary contact civilians have with police. Indeed, in any given year, “between 7% and 10% of adults” in the United States “are
stopped by the police [while driving] at least once.”4 Moreover, police have nearly unlimited discretion to initiate traffic stops.5 One researcher has concluded, “[i]f an officer follows any motorist long enough, the motorist will eventually violate some traffic law” and could, therefore, be subjected to a stop “almost anytime, anywhere, virtually at the whim of police.”6
For example, one recent study analyzed traffic stop data from jurisdictions across the country and concluded that a driver‘s race influences police to initiate traffic stops.10 The study reached this conclusion by comparing stops made before dusk, when a driver‘s race is readily apparent, to stops made after dusk, when a driver‘s race is more difficult to observe.11 Even after controlling for location and for differences in traffic patterns and police deployment at different times of day, the study found that drivers of color were more likely to be stopped before dusk than they were after dusk—that is, drivers of color were more likely to be stopped when their race was apparent.12
Another study has found that drivers of color are more likely to be subjected to pretextual stops than White drivers.13 That study relied on data from the State of Washington, which, for just over a decade, outlawed pretextual traffic stops.14 Researchers compared the racial distribution of traffic stops when pretextual stops were illegal to the distribution after pretextual stops were legalized.15 The researchers found that
drivers of color were stopped more frequently after pretextual stops were legalized, even when controlling for other factors such as driver age, officer race, officer gender, and location-specific characteristics.16 That study also found that stops of drivers of color increased most during daylight hours—again, when a driver‘s race can be readily perceived.17
Another study found that police require less suspicion to search drivers of color than they require to search White drivers.18 The study analyzed how frequently searches of drivers of color versus White drivers yielded contraband and used statistical modeling to determine the probability of success an officer would need to perceive before deciding to initiate a search of
I am not the first to raise concerns about the ways in which police discretion during traffic stops disparately impacts racial and ethnic minorities. Justice Stevens raised the same concern nearly half a century ago in his dissent to the Supreme Court‘s decision in Pennsylvania v. Mimms—the first case to
permit police to burden drivers’ Fourth Amendment rights absent reasonable suspicion.22 There, the Supreme Court granted police officers unbridled discretion to order drivers out of their cars during traffic stops in the name of officer safety.23
In his dissent, Justice Stevens forecasted that “[s]ome citizens [would] be subjected to this minor indignity while others—perhaps those with more expensive cars, or different bumper stickers, or different-colored skin—may escape it entirely.”24 Time and subsequent research have proven Justice Stevens correct.
B.
Since our traffic stop jurisprudence produces racially disparate impacts, two aspects of it particularly warrant further refinement in an appropriate case.
First, in discussing the dangers of traffic stops, our precedents have not differentiated the risks associated with different types of stops.25 Instead, we have treated stops as though they are homogenous. We have relied on data that group together stops following hot pursuits of suspects who are known to be dangerous with stops following innocuous, technical traffic code violations.26 By failing to differentiate the risks associated with different types of traffic stops, our jurisprudence often overstates the risks involved in routine traffic stops in which there is no reasonable suspicion of
danger. We have then relied on this overstated risk to justify giving police unbridled discretion to pursue practices that would typically require reasonable suspicion outside the traffic stop context.
One recent study illustrates the problem. That study concluded that the risk to officer safety associated with routine traffic stops is substantially smaller than the risk associated with other types of police activity.27 And of the assaults on police that occur during traffic stops, the study found that fewer than 4% occur during
Second, the jurisprudence surrounding traffic stops has focused on the safety of the officer(s) involved. This is perhaps understandable given the nature of police work. However, traffic stops involve more than police; they involve ordinary members of the public as well. Yet, Fourth Amendment jurisprudence surrounding traffic stops has historically ignored the safety of a vehicle‘s occupants.
It is an unfortunate but undeniable reality that traffic stops endanger the occupants of vehicles. An investigation
conducted by the New York Times found that between 2016 and 2021 police killed “more than 400 drivers or passengers who were not wielding a gun or a knife, or under pursuit for a violent crime—a rate of more than one a week.”30 Indeed, even law enforcement professionals have recognized the danger civilians face in their interactions with police. As the District Attorney for Salt Lake County, Utah, put it, some incidents “get into what I would call anticipatory killings . . . . We can‘t give carte blanche to that.”31
This danger is even more pronounced for racial and ethnic minorities, who are not only subjected to police interaction with greater frequency, as discussed above, but are also more likely to be perceived as dangerous and therefore more likely to be subjected to force.32 A national study of police-involved shootings between 2011 and 2014 found that unarmed Black people were 3.49 times more likely to be killed
by police than unarmed White people.33 Allowing police too much latitude during a routine traffic stop only increases the risk of the encounter morphing into a tragedy.34
We are, of course, bound by Rodriguez. Rodriguez suggests that a criminal record check is a permissible safety precaution that comports with the mission of a traffic stop when conducted in a manner that is negligibly burdensome. I am therefore constrained to join my colleagues’ opinion. However, in joining that decision, it is important to note that neither Rodriguez nor the court of appeals case it relies upon to sweep record checks into the mission of a traffic stop explain how a criminal record check improves officer safety, and there is reason to doubt that it does.
As my colleagues and I have explained, Rodriguez instructs that a traffic stop may not be extended beyond the time necessary to complete the stop‘s mission.35 A stop‘s mission includes “address[ing] the traffic violation that warranted the stop” and “attend[ing] to related safety concerns.”36 These safety concerns include not only concern for the safety of the roadways but also concern for the safety of the officer(s) making the stop.37
In discussing how police officers may attend to the safety of the roadways, Rodriguez specifies that an officer may
Kirkpatrick et al., supra.
pursue “ordinary inquiries incident to the traffic stop,” such as checking a driver‘s license, insurance, and registration and checking whether there are outstanding warrants for the driver‘s arrest.38 The Court considered these inquiries to be consistent with the mission of the traffic stop because “[t]hese checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.”39
It is clearly important to ensure that drivers can safely and competently operate their vehicles, and it is therefore obvious that the information officers may obtain through their routine traffic stop inquiries serves that objective. For example, a driver‘s license proves a person is qualified to get behind the wheel. Vehicle registration, which typically requires an annual inspection, helps ensure that a vehicle is safe. Insurance documentation ensures that a driver can compensate others for personal injury or property damage in the event of an accident. And an outstanding warrants check can help an officer determine whether a driver may be wanted for previous traffic offenses40 or may be tempted to use the roadways to flee in a dangerous manner.
In discussing how police officers may attend to their own safety, however, Rodriguez provides little detail. As mentioned above, the Supreme Court stated only that an officer may pursue “certain negligibly burdensome precautions” and did so relying upon a Tenth Circuit decision, United States v. Holt,41 which the Supreme Court parenthetically described as
“recognizing [an] officer safety justification for criminal record and outstanding warrant checks.”42 After making this statement, however, the Court went on to distinguish officer safety and the specific mission of a traffic stop from the general mission of investigating crimes without explaining the connection between criminal record checks and officer safety.
It is not at all clear how a criminal record check advances officer safety. And Holt—the only case cited in Rodriguez for this point—does not explain the connection. Rather, Holt simply assumes a connection, stating only, “[b]y determining whether a detained motorist has a criminal record or outstanding warrants, an officer will be better apprized of whether the detained motorist might engage in violent activity during the stop.”43
But, the relationship between an individual‘s criminal record and likelihood of assaulting a police officer is extremely tenuous. “Numerous . . . studies have shown that recidivism occurs relatively quickly,”44 and at least one study has shown that individuals with prior records are no more likely to reoffend than members of the general public after those
individuals have remained free from encounters with the criminal legal system for a period of time.45 Thus, the older the crime, the less likely it is to have any relevance to an individual‘s propensity towards violence during the traffic stop. The predictive value of a criminal record also depends on the nature of the prior crime(s) as well as an individual‘s current age and age when first arrested.46 Thus, the academic literature on recidivism suggests only a limited subset of past crimes would have potential relevance to an officer‘s safety, and then only for a limited subset of drivers.
Yet, I seriously doubt that officers have the kind of training that would allow them to meaningfully assess the significance of the information obtained through a “routine” criminal record check, even if the record check provided the kind of detail that would allow for such an assessment. And that kind of analysis would, of course, further delay the detained motorist and passengers.
Moreover, conducting criminal record checks during traffic stops could very well endanger officers as well as the occupants of the stopped vehicle rather than making officers safer. As I have just explained, prior encounters with the criminal justice system may have little or no bearing on a driver‘s present dangerousness. But, after reviewing a driver‘s criminal record, an officer might assume the driver is dangerous or otherwise engaged in criminal activity. The officer would therefore return to the stopped vehicle with heightened apprehension. That only multiplies the opportunities for misunderstanding, misinterpretation,
increases the likelihood that the occupants would be ordered out of the vehicle, and this, in turn, may well increase the likelihood of confrontation.47
III.
Traffic stops are very fluid and dynamic encounters between police and ordinary members of the public. They are, of course, necessary to ensure that vehicles are operated “safely and responsibly” as the Supreme Court has explained. Fortunately, the vast majority of them are conducted without incident or confrontation.
But as I have explained, studies have shown that the discretion underlying an officer‘s decision to stop a motorist is often influenced by factors that would raise constitutional concerns but for the Fourth Amendment latitude courts have historically allowed in the traffic stop context. As I have also explained, studies have now validated Justice Stevens’ concern that the decision to stop a motorist is sometimes influenced by the color of that motorist‘s skin. Although there does not currently appear to be a remedy for such discrimination, I am hopeful that our Fourth Amendment jurisprudence will yet evolve to ensure that all motorists receive the same degree of protection from an officer‘s conscious or unconscious bias.
My colleagues conclude that the District Court erred in granting Hunter‘s suppression motion here. Because that result is consistent with, and required by, the Supreme Court‘s analysis in Rodriguez, I join my colleagues’ opinion despite the concerns I have expressed.
Notes
The police officers who issued those warnings had stopped the motorists for common offenses: swerving across double yellow lines, speeding recklessly, carrying an open beer bottle. None of the men were armed. Yet within moments of pulling them over, officers fatally shot all three.“Open the door now, you are going to get shot!” an officer in Rock Falls, Ill., shouted at Nathaniel Edwards after a car chase.
“Hands out the window now or you will be shot!” yelled a patrolman in Bakersfield, Calif., as Marvin Urbina wrestled with inflated airbags after a pursuit ended in a crash.
“I am going to shoot you—what part of that don‘t you understand?” threatened an officer in Little Rock, Ark., adding a profanity, as she tried to pry James Hartsfield from his car.