Out of state motorists are often stopped on Interstate 80 for minor traffic violations. While Nebraska drivers stopped for the same infractions are told to wait in the car and a ticket is produced quickly, such often is not the case with out of state motorists traveling through Nebraska.
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Often out of state motorists traveling through Seward, York, Lincoln, and Omaha and other locations along Interstate 80 are stopped for a minor violations such as following too closely or failing to signal a lane change, or speeding a couple miles over the speed limit. During the traffic stop the driver is asked to come back to the patrol car where he is questioned about the purpose and destination of travel. If there is a passenger, the passenger is questioned as well. During this time law enforcement is running checks to look at whether the motorist has any arrest warrants, wants, and criminal history.
Once the traffic stop is complete, law enforcement hands back the license and registration and asks the motorist if he would be willing to answer additional questions and asks for consent to search the vehicle. If the motorist denies consent, law enforcement will often detain the motorist and wait for a drug dog so the drug dog may sniff the vehicle to establish probable cause to search the car without consent and without a search warrant. This practice is illegal and a violation of the Fourth Amendment to the United States Constitution.
A 2015 United States Supreme Court case,Rodriguez vs. United States made it clear that this practice is illegal in violation of the motorist’s Fourth Amendment rights. Once the traffic stop is completed, law enforcement must allow the driver to leave unless the police have reasonable suspicion to believe criminal activity is afoot. If police have reasonable suspicion, they may detain the driver for time for a drug dog to arrive on the scene.
However, the reasonable suspicion needs to be more than just a hunch or a feeling by the officer. The reasonable suspicion must be based on the specific articulable facts and must be from the perspective of a reasonable police officer based on the totality of the circumstances. For example if an officer believes the driver looks nervous but has no other factors to detain the driver, this is not reasonable suscipion and any detention after the purpose or mission of the traffic stop is completed is unlawful. Often to establish reasonable suspicion law enforcement needs multiple factors that, when taken alone, mean nothing, but when taken as a whole, establish reasonable suspicion that criminal activity is afoot.
For example, if the state patrol stopped a vehicle on Interstate 80 traveling east to Chicago, the officer may establish the following facts that would provide for reasonable suspicion, the driver and passenger gave significantly differing travel stories:
- the driver has significant drug related criminal history;
- the driver rented a vehicle in northern California for two days which was supposed to be returned to Chicago;
- multiple air fresheners;
- upon approaching the vehicle, the officer noticed five cell phones in plain view in the center console of the vehicle, and
- there was no luggage in the vehicle
While each of these individual factors prove nothing, based on the totality of the circumstances, courts in Nebraska have found that these multiple factors could establish reasonable suspicion that criminal activity is afoot. This allows law enforcement to detain a defendant for a reasonable period of time to allow a drug dog to sniff the vehicle.
Probable cause to search can only be established if the drug dog is determined by the court to be reliable. Furthermore, the dog must indicate to the odor of narcotics by exhibiting a trained behavior. In some instances, there is argument as to whether the dog indicated, whether the handler cued the dog, and whether the dog was actually sufficiently trained or reliable.
The bottom line is that once the traffic stop has been completed the motorist must be allowed to continue on his way unless there is reasonable suspicion for a detention. A detention without a reasonable suspicion is a violation of the motorist’s Fourth Amendment rights of the United States Constitution that protects against unlawful searches and seizures.
If you have been unlawfully stopped, detained, or searched pursuant to an Interstate traffic violation in the State of Nebraska, contact Berry Law Firm.