Expansion of the Stop | Prolonged, Intrusive

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Police expansion of the stop

After the initial Fourth Amendment seizure or Terry stop and frisk, how long can police detain you? The law limits police expansion of the stop beyond its original purpose. A prolonged detention may be illegal. How far can a stop-and-frisk go?

How long police can lawfully detain you depends upon all the circumstances. But the most important factor is the original reason for the initial stop.

Let’s consider a traffic stop for speeding. How long do police take to give a speeder a citation and send them on their way? That is the reasonable length of detention after a traffic stop. But anything longer would be an unlawfully prolonged detention, unless police get additional information to justify suspicion to expand the detention.

So, if a police detention is prolonged beyond its reasonable justification under the circumstances, it is illegal. And a judge will suppress evidence found as the result of an illegal expansion of the stop.

Free from Searches & Seizures

The United States and Minnesota Constitutions guarantee the individual’s natural right to be free from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10.

The Minnesota Supreme Court held that Article I, section 10, of the Minnesota Constitution, requires application of Terry v. Ohio, 392 U.S. 1 (US Supreme Court 1968), when evaluating the reasonableness of seizures during traffic stops for a minor law violation. State v. Askerooth, 681 NW2d 353, 363 (Minn. Supreme Court 2004).

The United States Constitution guarantees:

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …”

U.S. Constitution Amendment IV

Fourth Amendment seizure

A traffic stop or investigatory detention is an intrusion upon your liberty. And it’s a “seizure” within the meaning of the Fourth Amendment. An investigatory detention is a “brief” seizure by police based on a “reasonable suspicion of criminal activity.” And it’s a narrow exception to the probable cause requirement of the Fourth Amendment. Terry v. Ohio, 392 US 1, 26-27 (US Supreme Court 1968).

Even so, the police officer must have a “reasonable, articulable suspicion of criminal activity” or observe a violation of law, before imposing even a brief, investigatory detention.

So what is “a reasonable, articulable suspicion?” The police officer must have had specific, articulable facts, reasonably suggesting that criminal activity has occurred or is imminent.

This is an objective standard, not a subjective one. The word “reasonable” means it’s an objective standard. A sincere, good faith mistake is not good enough. A police officer’s subjective belief is not enough for a stop and frisk, or a prolonged detention.

After the stop or seizure

After a police officer stops a vehicle, she “may ask the detainee questions in order to dispel or confirm his suspicions, but questioning is limited in scope to the circumstances that justified the stop.” United States v. McGauley, 786 F2d 888, 890-91 (US 8th Cir. 1986). The U.S. Supreme Court said:

“The stop and inquiry must be reasonably related in scope to the justification for their initiation. Typically, this means that the officer may ask the detained a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions”

Berkemer v. McCarty, 468 US 420, 439-40 (US Supreme Court 1984)

During an investigatory detention, a police officer must use the least intrusive means of detection reasonably necessary to address the officer’s reasonable suspicion. US v. Gill, 513 F 3d 836, 845 (US 8th Circuit 2008). And this includes any police stop-and-frisk.

Expansion of stop: scope & length

Limited scope: The scope of a stop is “strictly tied to and justified by the circumstances” for the initial stop.

“In essence, Article I, Section 10 of the Minnesota Constitution requires that each incremental intrusion during a traffic stop 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.
Furthermore, the basis for the intrusion must be individualized to the person toward whom the intrusion is directed.”

State v. Askerooth, 681 NW2d 353, 364 (Minn. Supreme Court 2004)

Expansion of the stop: If a stop is initially justified on one basis, a police officer cannot expand the scope or length of the police investigation without additional, reasonable suspicion to support the expansion. And a police officer may expand the scope of the stop only if the officer has reasonable, articulable suspicion that the person is engaged in criminal activity.

So, to expand the scope of the stop, “the officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 US 411, 417-18 (US Supreme Court 1981). And this applies to a prolonged detention as well as a stop-and-frisk.

How long can a Terry Stop Last?

How long can the police detain you? As a practical matter, if it seems too long to you, ask the police officer, “Am I free to go?” Typically Body Worn Camera (BWC) video will record events. And that can be a good thing. When you ask, “Am I free to go, Officer?” The officer knows that a judge may later review events to evaluate whether the police has enough objective reason to suspect a crime, detain, or reasonable basis to continue detention to finish writing a traffic citation.

But the courts have not come up with a number or bright-line, maximum, set amount of time for a Terry stop. Rather, judges will balance the government intrusion against its proffered justifications. Let’s review some appellate cases discussing this.

“Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop. But our cases impose no rigid time limitation on Terry stops.”

United States v. Sharpe, 470 US 675 (US Supreme Court 1985)

Length of investigatory detention:

“An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.”

State v. Wiegand, 645 NW2d 125, 135 (Minn. 2002)

And in addition to the original purpose of the stop, courts look at whether the suspicion justifying the stop has since been dispelled. So police may continue to detain a person only “as long as the reasonable suspicion for the detention remains.” State v. Moffatt, 450 NW2d 116, 119 (Minn. Supreme Court 1990). After a stop for constitutionally valid reason, once motorist is exonerated police have no authority to continue the intrusion by asking to see license. See, State v Hickman, 491 NW2d 673 (MinnApp 1992). (Stop for expired tabs., but yellow 21-day temporary permit taped on rear window. Therefore police officer did not have authority to prolong detention, ask to see drivers license.)

Here is the United States Supreme Court formula for evaluation of the length of detention:

“In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”

United States v. Sharpe, 470 U.S. 675 (US Supreme Court 1985)

If there was no objective reason to expand or prolong the initial Fourth Amendment seizure, subsequent investigative questioning, requests for consent to search, or searches are illegal. Therefore, resulting evidence must be suppressed. See, State v. Fort, 660 NW2d 415, 419 (Minn. Supreme Court 2003).

What about prolonged seizures for a traffic violation? The United States Supreme Court said:

“A seizure for a traffic violation justifies a police investigation of that violation. ‘[A] relatively brief encounter,’ a routine traffic stop is ‘more analogous to a so-called `Terry stop … than to a formal arrest.’ … Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’ —to address the traffic violation that warranted the stop, … and attend to related safety concerns, … Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion) (‘The scope of the detention must be carefully tailored to its underlying justification.’). Because addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.’ Ibid. … Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. See Sharpe, 470 U.S., at 686 (in determining the reasonable duration of a stop, ‘it [is] appropriate to examine whether the police diligently pursued [the] investigation’).”

Rodriguez v. United States, 575 US 348, 354 (US Supreme Court 2015)

Best practices at traffic stop

What does all this mean? And how can you use this information? We can make practical use of it both prospectively and retrospectively. And it can both avoid future problems and help solve problems from the past. For practical tips, see:

How to Assert Your Rights: Protect Yourself from Police

Countermeasures at a DWI Stop

How to Avoid a Marijuana Arrest in a Car: Nine Tips

Unlawful Arrest and Illegal Evidence

Can police ask “Do you know why I pulled you over?”

No, a 2024 law prohibits police from asking the driver “do you know why I stopped you?” and similar coercive, incriminating questions. Minn. Stat. §169.905. And, police are now required to give the driver notice of the reason for the stop. “Notice” is a key component of “due process.”

“A peace officer making a traffic stop for a violation of this chapter or chapter 168 must not ask if the operator can identify the reason for the stop. A peace officer making such a traffic stop must inform the vehicle’s operator of a reason for the stop unless it would be unreasonable to do so under the totality of the circumstances. A peace officer’s failure to comply with this section must not serve as the basis for exclusion of evidence or dismissal of a charge or citation.”

Minn. Stat. §169.905 TRAFFIC STOP; QUESTIONING LIMITED.

Looking ahead: expansion of the stop

After a police stop, in a car or otherwise, how can this law guide best behavior? Maintain a professional, courteous demeanor while interacting with police; while at the same time faithfully asserting your rights.

How? Don’t lie, and don’t volunteer information that a prosecutor could use against you – both. After all, you may not understand what information prosecutors can cherry-pick to use against you until after it’s too late. So, when in doubt remember: silence is golden.

If you sense a police officer may be detaining you longer than necessary during a stop and frisk – ask the officer: “am I free to leave?” Or “am I being detained?” Or “may I go now?”

Why ask that question? Because the police officer will need to stop a moment and evaluate. Can she justify at that moment, articulable, reasonable suspicion sufficient to expand the scope of the stop or prolong the length of the detention?

This forces a choice. Is the police officer invoking the power of the State, imposing a Fourth Amendment seizure (or “stop”)? If so, then leaving would a crime, Fleeing Police. But if not, then the police office must concede that they are not doing so, and that you are “free to leave.”

If the police officer is not invoking a “stop” or is terminating it due to lack of justification; the officer will then let you go, with or without your ticket. That’s your cue, to leave in an orderly way. (“Free to go” means leave now.)

Solving the Problem of the Past

But if the police officer continues the detention, the police officer may later be forced to justify it in court. And if the police officer cannot articulate facts known at the time that justify the stop and frisk, prolonged detention or expansion of the stop, the judge will suppress the evidence.

If police obtained evidence after an illegal expansion of the original stop or unlawfully prolonged the length of the investigatory detention, your defense lawyer can ask a judge to suppress that evidence. And if lacking other evidence, the judge will then dismiss the criminal charges.

Two examples: expansion of the stop

Defense Attorney Thomas Gallagher sees two common fact patterns for expanded stops and prolonged detention – dog-sniff searches and consent searches.

Dog-sniff Search: expansion of the stop

A police officer may stop a vehicle and want to conduct a dog-sniff search, for example for illegal drugs. But unless she has a dog in the car, it may take a long time to get one there.

An unlawful expansion of the stop and prolonged detention can lead to a dog-sniff search. But this results in suppression of illegal evidence. See, State v. Miller, 659 NW2d 275, 280 (Minn. Ct. App. 2003), and Rodriguez v. United States, 575 US 348, 354 (US Supreme Court 2015) (holding that a traffic stop cannot be extended, even for seven to minutes, for a dog sniff after the initial purpose of the stop, issuing a ticket, is completed, without independent reasonable suspicion, rejecting “de minimis” argument).

So, if there is no objective basis for prolonging the detention, any subsequent search, including a dog-sniff search, is illegal. And a judge will suppress evidence resulting from the illegal expansion of the stop. (“Waiting for a dog” is not a reasonable basis to suspect a crime.) See:

Odor of Marijuana: Probable Cause to Search?

Consent search vs. police coercion

Another common ploy is to prolong an investigatory detention beyond its original purpose. The prolonged detention, without any objective reason for doing so, will delay and stress the person stopped. The police officer’s clear but unspoken message is “give ‘consent’ or be detained indefinitely or worse.” This is a technique to coerce “consent” to a search.

The police officer suggests a coercive quid pro quo: Though implied, it’s clear. “I’m might detain you indefinitely, unless you relent and consent to a search.” But that is not reasonable suspicion of a crime, so illegal.

Attorney Gallagher sees many variations of police coercion to get “consent.” But, the product of coercion is not consent, is it?

Compare to Sex: Did a person who “consented” to sex under coercion, really consent? Or was it rape? So, when police coerce people into “consenting,” that is not consent. And Judges should not let police get away with that or reward them for it.

Examples? A police officer detains you longer than necessary for a speeding ticket. And then she asks you to “consent” to a search. But when you don’t, she says she’ll have to detain you until the drug dog gets there.

The prolonged detention (false imprisonment) is coercive. You’ll be free to leave if you “consent” to a search. Otherwise, you’ll be stuck there for who knows how long.

Police officers can be creative. They come up with many, varied ways of pressuring and coercing people. Repetition is a common tactic, like a four-year-old.

Response: But don’t you surrender. Calmly repeat “I don’t consent to a search. May I leave now?” And assert your rights. You don’t need to justify your rights. After all, they’re yours. Be polite if you can manage it. But assert your rights. So don’t “consent.” And don’t answer questions without consulting a defense lawyer.

“Many citizens because of their respect for what only appears to be a law are cunningly coerced into waiving their rights due to ignorance.”

JUSTICE FRANKFURTER, U.S. v. Minker, 350 U.S. 179 (US Supreme Court 1956)

Never consent to a search. Prevention works better than cure. But if you already did, a defense lawyer like Thomas Gallagher can make a motion to suppress evidence obtained in an illegal search based on coerced “consent.”

Defense Attorney role

Your defense attorney should collect available facts. And then he should identify potential criminal defenses, including illegal expansion of the stop, prolonged detention, and illegal stop and frisk.

If facts support it, he’ll prepare a motion to suppress illegal evidence as a result. Then the judge will preside over a Contested Omnibus Hearing to decide the facts, and eventually apply the law. And the judge can then suppress illegal evidence.

Question? Call Lawyer Thomas Gallagher, 612 333-1500

Thomas Gallagher is an experienced criminal attorney who has won many cases as a result of these issues.

Attorney Gallagher also teaches police, other lawyers and judges the law of search and seizure. He can provide you with the best defense in your criminal case.

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