The answer will vary depending on the reason for the stop. However, in Georgia, law enforcement officers can prolong the length of the encounter by requesting permission to search the vehicle where the driver has been told that she is otherwise free to leave. In State v. Terrell, (A14A0012), the Georgia Court of Appeals distinguished this type of permissible conduct from an illegally prolonged traffic stop.
In the recent Terrell case, an investigation started when one officer initiated a radio communication to another officer who was working a normal traffic patrol shift. The first officer had reason to believe that a particular vehicle was involved with drug activity. He asked the patrol officer to watch that vehicle and see if he could find any reason to justify a traffic stop.
The patrol officer found the vehicle and noticed that it had a small crack on the windshield – one that was large enough to plausibly obstruct the driver’s view. The patrol officer turned on his lights and pulled the vehicle over for this minor equipment violation.
It should be noted at this point that officers are permitted to initiate a traffic stop for any legal infraction, even when they are more interested in investigating a more serious crime. Law enforcement needs very little justification in order to initiate a traffic stop.
The patrol officer approached the driver’s side window and asked for her license. It took all of 3 minutes to complete the license check (showing that the license was valid). Then, after the back-up officer arrived, the two officers discussed how they could convince the driver to give them permission to search the car.
They decided to stall for time by investigating the passenger. The officers retrieved his identification and ran a check on him – which came back clean as well. Finally, the driver was asked to exit so that they could explain the windshield ticket to her and get her signature. After that was completed the driver was told that she was free to go. The traffic stop took all of eleven minutes.
However, it was at this point that the lower trial court believed that the officers had overstepped their legal authority when they asked the driver to search the vehicle. The driver was reluctant. She told them she had somewhere to be. They insisted it would only take 5 minutes. She finally relented and gave the officers permission.
The passenger was asked to step out of the vehicle. He complied, and as he exited, he casually threw a Styrofoam cup into a nearby trashcan. The search of the vehicle yielded no results and the driver and her passenger were permitted to leave. It was only after they left the location that the officer decided to look in the trashcan. There he discovered a glass pipe and several baggies of suspected methamphetamine. The passenger was later arrested and charged with trafficking methamphetamine – a very serious felony drug charge.
The trial court suppressed the drug evidence discovered in the trashcan – which would have resulted in the case being dismissed. However the prosecutor appealed and the Georgia Court of Appeals reversed the trial court’s decision.
Critical to their analysis, the Court of Appeals found that because the driver was told she was free to go prior to the officer’s request to search this set of facts did not present a “prolonged” traffic stop. In other words, had the officer failed to notify the driver that she was free to go, the request to search would have improperly exceeded the scope of the initial detention (cracked windshield).