Iowa Sup Ct. approves another pretextual stop and extension

The Iowa Supreme Court has decided against a driver who complained his traffic stop was illegally extended for a drug investigation without reasonable suspicion. The case, State v. Tyre Dewayne Brown, involved a pretextual, or, fake, reason for a traffic stop—a a stop for a minor traffic violation when officers had ulterior motives to search the suspect's car. A subsequent search of the vehicle produced a firearm attributed to the driver.

The Iowa Supreme Court laid out the facts as follows: plain clothes officers surveilling the driver and his passenger for suspected drug activity saw the motorist get in a car with a backpack and a passenger. At this point, surveillance had not produced any proof the two occupants of the car were committing crimes. Nevertheless, the detectives surveilling the two suspects radioed a uniformed officer to stop the suspects for an as yet unknown traffic violation and then radio the detectives for backup.

The quiet part unsaid here: the Court found that police directed a uniformed officer to "find" a reason to pull the motorist over purely to search his car—before said officers had any proof to do so nor proof of an actual traffic violation. This did not give the Court pause because the Iowa Supreme Court has already found such “pretextual stops” legal; as long as an officer can substantiate an actual traffic violation, they can conduct a traffic stop regardless of their ulterior motive.

Nevertheless, the United States Supreme Court and the Iowa Supreme Court have both held that to extend a traffic stop beyond that necessary to issue a traffic citation or warning, officers still need further “reasonable suspicion” to believe another crime is happening or that contraband, like an illegal drug, is present. In this case, the defendant argued that police did not have that extra, reasonable suspicion to prolong the traffic stop in order to conduct the canine open-air sniff. Though not quantifiable, the United States Supreme Court has suggested such "reasonable suspicion" is “more than a scintilla but less than probable cause.” In short, reasonable suspicion does not even require the likelihood that someone is engaging in illegal activity to justify the extension of a traffic stop. But the driver here said they didn't have it.

Finding whether police had such proof was made more difficult because the court reporter, a skilled professional who takes down in court with a stenotype machine, sadly died before she could transcribe her notes of an important hearing called a “suppression hearing,” or, defendant’s challenge to the evidence.

While other court reporters valiantly attempted to transcribe her work, they ultimately were unable to do so. Therefore, that crucial hearing where the defendant challenged the very reasonable suspicion required to extend the stop was never fully transcribed. Thus, no one knew exactly what was said at that hearing. Under a little-used rule, the parties attempted to recreate the formal record with written statements from their own recollection. Naturally, they did not entirely agree with one another about what was said and what happened during the hearing.

After multiple attempts to recreate the record, the Iowa Supreme Court became satisfied that they had a clear enough picture to conclude the following:

1.     The State did not prove that anyone smelled marijuana to extend the stop. If that were the only argument the State had to extend the stop, Justice McDermott wrote that the Defendant may have won.

2.     However, Officers testified that they saw a street level drug transaction after the two suspects left in the car but before the uniformed police officer conducted the traffic stop for an illegal left hand turn.

3.     Under “shared knowledge” doctrine, the information that the driver had engaged in a street level drug transaction was attributable to the uniformed officer. This was the necessary reasonable suspicion to extend the stop and call in a canine to do an open-air sniff.

Observations? It’s impossible to offer an opinion, contrary or otherwise, in a case where our firm did not participate. We do not have access to all of the information the attorneys and the courts had available to them. However,beyond dispute, plain clothes officers in this case encouraged a fellow uniformed officer to make a traffic stop before there was probable cause to do so. They hoped the driver would make a mistake and, according to the uniformed officer, apparently he did: an illegal left hand turn. But to us here at this law firm, admittedly without access to the dash cam, the reason for the stop feels very unclean-- as all pretextual stops invariably do.

This case appears to stand for the proposition, "give me the man, I'll show you the crime," a phrase attributable, generally, to Soviet-era secret police, and not one I would have hoped would ever apply to high minded law enforcement officers in the United States. We can do better than to use pretextual stops with directions to uniformed officers to "find" a reason to pull someone over. This conduct, though legal, tarnishes the image of law enforcement officers who must effectively lie that the reasons for their stop are actually innocent. Such deception is not in keeping with the motto for which most law enforcement agencies are known: to protect and serve.

NOTE: David A. Cmelik Law PLC took no part in State v. Tyre Dewayne Brown.