"Intolerable" Inquiries

Authors

Zachary R. Cormier

Document Type

Article

Abstract

(Excerpt)

A growing majority of courts have broadly accepted travel-plan questions (and their follow-up questions) as a qualifying category of traffic-mission inquiries under Rodriguez, leaving officers with a clear pathway from pretextual traffic stop—to extended discussion about vehicle occupant activities outside the traffic violation—to drug dog sniff—to vehicle search. A closer analysis of Rodriguez, however, precludes such passage through the heart of its traffic-mission rule. This Article will demonstrate that travel-plan questioning cannot qualify alongside the roadway safety checks identified by Rodriguez in its traffic-mission inquiry list because such checks provide direct information about another safety-related traffic violation and do not fit with a category of travel-plan questions that come with ambiguous variations, subparts, and follow-up. Analysis of the travel-plan majority’s rationale will further dispel these courts’ assumption that vehicle occupants generally concede privacy about their travel plans by simply deciding to travel.

This Article will otherwise demonstrate that travel-plan questioning should not qualify as traffic-ticket decision inquiries under Rodriguez. The travel-plan majority omits application of another vital Fourth Amendment limitation for traffic stops—Florida v. Royer’s rule that officers must use the least intrusive means reasonably available to verify or refute the suspicion that justified the seizure. Travel-plan majority courts argue that open ended travel-plan questions can inform an officer’s decision to issue a warning rather than a ticket for hypotheticals like a driver speeding in an emergency to get another occupant to the hospital. These courts ignore that an officer can gain the same information through a less intrusive—and more traffic-mission specific—traffic-violation explanation question which directly asks: “can you explain why you were speeding?” The Royer rule is particularly important in light of the opportunity for follow-up questions, as the driver is much more likely to respond by either admitting or disputing the traffic violation itself than getting into an expanded discussion about the occupants’ unrelated activities.

This Article will also explore other important practical considerations related to Rodriguez’s traffic-mission rule that should encourage future courts to adopt a more specific approach to evaluating travel-plan questions. The Supreme Court has long recognized that “the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions.” Such pressure to respond is exacerbated by the fact that an officer is not generally required to mention Miranda rights— including the right to remain silent—before questioning vehicle occupants at a traffic stop. Though some vehicle occupants may refuse to answer blunt questions about suspected criminal activity that seem out-of-place for the traffic violation at issue, they are more likely to succumb to pressure to cooperate with the officer’s seemingly benign initial question(s) about travel plans to avoid a ticket or an escalated situation with the officer. As several empirical studies have established, an allowance for travel-plan questioning without reasonable suspicion will continue to have the largest negative impact on racial minorities that are stopped at a significantly higher rate, with a disproportionately low justification in terms of meaningful drug seizures.

This does not mean that a travel-plan question could never qualify as a traffic-ticket decision inquiry under Rodriguez. However, given the recognition that direct traffic-violation explanation questions will provide the contextual information needed for Rodriguez’s traffic-ticket decision in most circumstances, this Article proposes an approach for courts to require an officer who engages in travel-plan questioning to explain: (1) specifically how the questioning was based on the legal justification for the stop; and (2) why a direct traffic-violation explanation question would not have accomplished the same purpose.