Court Gives Officers an Effective Green Light to Ask Routine Questions About Contraband or Weapons in Cars During Routine Traffic Stops

State v. Smith, Minn.S.Ct., 6/6/2012.  Following a traffic stop for speeding and no seat belt, officers found a pistol in the car for which Mr. Smith did not have a permit.  this 5-2 opinion will make it harder, if not nearly impossible, to challenge an officer’s expansion of routine traffic stops by questions about the presence of either contraband or weapons in the car.

  Two state patrol officers – one a trainee and the other his minder - clocked Mr. Smith, who was not wearing a seat belt, doing 77 miles per hour in a 65 miles per hour zone in his Chevy Camaro.  Mr. Smith actually stopped his Camaro before the troopers signaled him to do so.  Trainee trooper chatted up Mr. Smith while minder trooper sat in the patrol car listening by means of a wireless radio signal.  Trainee trooper asked the standard question, “Do you know why you were stopped,” and Mr. Smith gave the correct answer, “No, I don’t.”  Trainee trooper asked for Mr. Smith’s license and proof of insurance.  Mr. Smith produced his license but said he had just switched insurance carriers and didn’t have the new card.  At this point minder trooper came over to join the conversation.

Minder trooper asked why Mr. Smith had pulled over if he didn’t know why he got stopped.  Mr. Smith said he needed to enter an address into his GPS as he was travelling from Illinois to meet someone in St. Paul.  Minder Trooper thought that Mr. Smith was shaking “very violently;”  Mr. Smith said this was from an undiagnosed medical condition that he’d had all his life.  Minder trooper didn’t believe that and assumed that the shaking was due to nervousness.  Minder trooper also saw a box of ammunition partially covered with debris on the floor in the backseat.

At this point Trainee and minder trooper conferred;  minder trooper thought that Mr. Smith was up to something criminal.  Minder trooper instructed trainee trooper to return to the car, ask Mr. Smith for his middle name, and ask him if he had anything illegal or any weapons in the car.  Trainee trooper did this and Mr. Smith coughed up a pistol for which he did not have a permit.  Neither trooper found any illegal contraband in the car, minder trooper agreed that Mr. Smith had been cooperative and that his driver’s license was valid.

Mr. Smith complained that by asking  him whether he had anything illegal or any weapons in the car the troopers expanded the scope of the traffic stop without reasonable suspicion of criminal activity, making the seizure of the pistol illegal. 

Start with State v. Askerooth, 681 N.W.2d 353 (Minn. 2004).  There, the court said that to remain constitutional, an intrusion not strictly tied to the circumstances that rendered the initiation of the stop permissible must be supported by at least a reasonable suspicion of additional illegal activity.  Each “incremental intrusion” during the stop must be tied to and justified by one of the following:

(1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry [v. Ohio].

Mr. Smith’s challenge was to the scope of the stop, not its duration.  Here, the Justice Paul Anderson, writing for five members of the court, assume without deciding that trainee trooper’s question about having either contraband or a weapon in the car did expand the scope of the stop, rejecting the state’s argument that a single question can never expand the scope of a traffic stop.  Justice Anderson concludes that Mr. Smith’s “extreme shaking” and what the majority decided to characterize as his “evasive response” about the etiology of his shaking provided the officers with reasonable, articulable suspicion to support this assumed expansion of the scope of the traffic stop.  While nervous behavior by itself likely would not support this expansion – see the cases cited in the opinion - here it was the nervousness and shaking alongside his evasive explanation of the shaking that sealed Mr. Smith’s fate.

Justice Page, joined by Justice Meyer dissented.  Justice Page rejected the majority’s characterization of Mr. Smith’s answer about the etiology of the shaking as “evasive.”  Further, the dissent accused the majority of ignoring if not rejecting past opinions - e.g., State v. Burbach, 706 N.W.2d 484 (Minn. 2005) –that have held that even an unusual degree of nervousness has not  provided a reasonable, articulable suspicion of criminal activity to support an expansion of the scope of a routine traffic stop.