Can a Traffic Stop be Prolonged for a Canine if an Officer has a Gut Feeling that the Driver is Possessing Narcotics?

No!

A reasonable jury in this case, by contrast, could find that the stop’s traffic-related purposes would have ended well before the dog sniff if the officers had not been investigating drug crimes.

Klaver v. Hamilton County, Tennessee

No. 22 – 5083/5084

United States Court of Appeals

Sixth Circuit

November 3, 2022

On the evening of Wednesday April 17, 2019, Mr. William Klaver was traveling southbound on State Route 27 toward Chattanooga, Tennessee. At 8:10 p.m., Tennessee Hamilton County Dep. Cameron Wilkey pulled over Mr. Klaver’s van because of its excessively tinted windows. Videos from the dash-cam on Dep. Wilkey’s cruiser and from Mr. Klaver’s phone captured their interactions over the next 40 minutes.

Mr. William Klaver’s pro se complaint identifies this stretch of Tennessee State Route 27 as the area where he was stopped by Hamilton County Deputy Cameron Wilkey. What occurred next would lead to a successful civil lawsuit by Mr. Klaver.

Dep. Wilkey told Mr. Klaver that he had stopped the van because its windows were “way too dark” and requested Mr. Klaver’s license. As Mr. Klaver searched for his license, Dep. Wilkey inquired about where Mr. Klaver was headed. Mr. Klaver’s failure to respond led Dep. Wilkey to ask: “Not going to talk to me?” Around this time, Dep. Tyler McRae pulled up and approached the van’s passenger side. After several more seconds, Dep. Wilkey asked Mr. Klaver, “You okay?” and again requested his license. Mr. Klaver responded with a question of his own: “Am I being detained?” Dep. Wilkey replied “yes” because of the “window-tint violation,” and Mr. Klaver handed over his license. As Dep. Wilkey and Dep. McRae headed back to Dep. Wilkey’s cruiser, Dep. Wilkey said the words “sovereign citizen” to Dep. McRae.

The officers talked for a few minutes. Dep. Wilkey observed that the van had an “obstruction” (a Marine Corps sticker) on its license plate and noted that Mr. Klaver had been “shaking like a leaf too.” He opined that they should “make sure he ain’t got no pot or anything” because Mr. Klaver was “shaking like crazy.” When Dep. Wilkey suggested that they call for a drug-sniffing dog, Dep. McRae agreed because Mr. Klaver would “say no to a search.” A criminal-history review of Mr. Klaver revealed only “harassing phone calls back in ’04.”

About five minutes into the stop, the officers returned to Mr. Klaver’s van and requested his registration and insurance card. As Mr. Klaver looked for the documents, Dep. Wilkey expressed appreciation for his military service but added that Mr. Klaver could not have an obstruction on his license plate. Dep. Wilkey then asked whether Mr. Klaver had “ever been arrested,” to which Mr. Klaver replied “no.” Dep. Wilkey followed up: “Never ever?” Mr. Klaver again said no. So Dep. Wilkey turned to questioning whether Mr. Klaver was on any “kind of medication” (Mr. Klaver said no) or had “any kind of disability” (Mr. Klaver was silent). Dep. Wilkey explained that the “reason I’m asking is ’cause you’re shaking,” and he inquired whether Mr. Klaver had “Parkinson’s or anything like that?” Mr. Klaver indicated that he did not think that Dep. Wilkey could ask him these questions. Dep. Wilkey justified his questioning on the ground that Mr. Klaver’s shaking might suggest that he was “hiding something” or had “drugs,” so Dep. Wilkey asked, “You don’t have any of that, do you?” Mr. Klaver responded: “You know I don’t.” A minute later, Dep. Wilkey again asked Mr. Klaver if he had “anything illegal in the car” like “weapons or anything like that.” Mr. Klaver again said no.

At this point, Dep. Wilkey sought permission to search the van, but Mr. Klaver responded as anticipated: “I refuse permission for you to search my vehicle” and “there’s nothing in here.” For a third time, Dep. Wilkey asked if Mr. Klaver had ever been arrested, and Mr. Klaver again replied “no.” Dep. Wilkey reiterated: “Is there any reason why you’re shaking so bad?” Mr. Klaver replied: “Sir, I’m trying to be as respectful as I can, [but] you’ve got me illegally pulled over.” Dep. Wilkey reiterated that he had legally stopped Mr. Klaver because of the window-tint violation and the “improper display” on the license plate. Dep. Wilkey then confirmed that Mr. Klaver would not consent to a search.

At 8:18 p.m., after the deputies returned to Dep. Wilkey’s cruiser again, he requested a canine officer. Dispatch informed him two minutes later that the officer was enroute. Dep. Wilkey filled out paperwork for the traffic ticket over the next several minutes, opining to Dep. McRae that the van’s windows were tinted so dark that you “can’t see anything,” not even the driver, and that Mr. Klaver had “done that for a reason.”

At 8:24 p.m., Dep. McRae approached Mr. Klaver. A few minutes before, Mr. Klaver started recording himself [on his cell phone] and can be seen peeling off the tint from the driver’s side window. Caught on Mr. Klaver’s video, Dep. McRae asked Mr. Klaver if he had served in the Marines. After nodding yes, Mr. Klaver noted that, while he did not mean to be “disrespectful,” he would not “answer any more questions.” Mr. Klaver instead said that he would like to be “on my way” if they were not arresting him. Dep. McRae noted that Dep. Wilkey was writing a ticket, but Mr. Klaver retorted that they needed a reason to detain him. Dep. McRae once again described the window-tint and license-plate violations. After expressing thanks for Mr. Klaver’s service, he returned to Dep. Wilkey’s cruiser.

Dep. Wilkey continued filling out the ticket until the canine officer arrived at 8:32 p.m. He told this officer that Mr. Klaver was likely a “sovereign citizen” who was “being combative” and “trying to conceal himself.” Dep. Wilkey added that the canine officer should let him “finish” with the ticket before deploying the dog in case Mr. Klaver “does something stupid.” After asking Dep. McRae about available court dates, Dep. Wilkey returned to the van and told Mr. Klaver to step out for the dog sniff. Dep. Wilkey patted Mr. Klaver down and discussed the citation with him as the dog circled the van. During the conversation, Mr. Klaver now claimed to Dep. Wilkey that “there’s no tint on my driver’s side window” (since he had removed it) and asked Dep. Wilkey to “go look” for himself.

At 8:40 p.m., Dep. McRae told Dep. Wilkey (and an incredulous Mr. Klaver) that the dog had alerted to drugs in the van. Dep. McRae and Dep. Wilkey searched the van for five minutes, finding nothing. Dep. Wilkey asked Mr. Klaver a final time whether he had drugs; Mr. Klaver told him again that he did not. As Mr. Klaver signed the citation, he noted: “In case you were wondering, I have muscular dystrophy.” Dep. Wilkey replied: “That’s all you had to say, sir.” Mr. Klaver drove off at 8:50 p.m.

Mr. Klaver brought this pro se suit [by himself without an attorney] against Dep. Wilkey and Dep. McRae (among others). As relevant now, he alleged that the traffic stop violated the Fourth Amendment. Dep. Wilkey and Dep. McRae moved for summary judgment. The district court denied their motions on the ground that they had unreasonably prolonged the stop without reasonable suspicion that Mr. Klaver possessed drugs. Dep. Wilkey and Dep. McRae filed an immediate appeal on qualified-immunity grounds. We review the district court’s decision de novo while construing any factual ambiguities in Mr. Klaver’s favor.

Analysis

Question1: Did the deputies prolong the stop?

When an officer stops a vehicle for a traffic violation, the officer generally may detain the driver only for the time necessary to complete the tasks associated with the reason for the stop. See id. at 354; United States v. Whitley, 34 F.4th 522, 529–30 (6th Cir. 2022). What are the tasks associated with a typical traffic stop? The Supreme Court has provided a checklist of duties that it found connected to an ordinary stop’s purpose because they are designed to ensure that drivers are operating their vehicles “safely and responsibly.”Rodriguez v. United States, 575 U.S. 348, 355 (2015). Officers usually will question a driver about the traffic infraction. They will run the driver’s license and the vehicle’s license plate in their computer. They will request and review the vehicle’s registration and the driver’s insurance. They will check for outstanding warrants. And, of course, they will write the traffic ticket if they decide to issue one. See id.; United States v. Lott, 954 F.3d 919, 924–25 (6^th Cir. 2020). Officers also commonly question drivers about their travel plans. See United States v. Cole, 21 F.4^th 421, 429–30 (7^th Cir. 2021) (en banc) (citing cases); see also United States v. Stepp, 680 F.3d 651, 662 (6^th Cir. 2012).

Can an Officer Slow Walk Traffic Procedures?

How about questions concerning whether the driver has drugs or weapons in the car? Or a walk of a drug-sniffing dog around the car to determine whether drugs might be inside? While these activities have no connection to the purpose of a typical traffic stop, the Supreme Court has nevertheless held that officers may engage in them during the time that they undertake the traffic – related tasks for the infraction that justified the stop. See Rodriguez, 575 U.S. at 354–55. So, for example, an officer can question a driver about drugs while the driver sorts through the glove compartment looking for an insurance card. See Arizona v. Johnson, 555 U.S. 323, 333 (2009); Whitley, 34 F.4th at 530. And a canine officer may walk a dog around a car during the time that another officer completes a ticket. See Illinois v. Caballes, 543 U.S. 405, 406, 409 (2005).

Critically, however, this type of unrelated task turns a reasonable stop into an unreasonable seizure if it “‘prolongs’—i.e., adds time to—‘the stop.’” Rodriguez, 575 U.S. at 357 (citation omitted); see Stepp, 680 F.3d at 663. And an officer may not avoid this rule by “slow walking” the traffic-related aspects of the stop to get more time to investigate other crimes. See Whitley, 34 F.4th at 531–32. Rather, once the traffic-related basis for the stop ends (or reasonably should have ended), the officer must justify any further “seizure” on a reasonable suspicion that the driver is committing those other crimes. See Hernandez v. Boles, 949 F.3d 251, 256 (6th Cir. 2020).

Did the officers add time to the stop in anticipation of the canine?

Here, then, we must ask whether Dep. Wilkey and Dep. McRae added time to the stop by investigating Mr. Klaver for drug possession. Or said in the opposite way, we must ask whether their stop would have ended sooner if they had investigated Mr. Klaver only for tinted-window and license-plate infractions. This issue about what Dep. Wilkey and Dep. McRae would have done in the counterfactual world in which they had no drug-related concerns strikes us as a question about the “historical facts” that a jury should resolve when the evidence cuts both ways.

In this case, moreover, the evidence cuts both ways. On the one hand, Dep. Wilkey testified that writing a citation and discussing it with a driver could take 30 minutes in an average case. Yet well under 30 minutes had elapsed between the time of the stop (8:10) and the arrival of the canine officer (8:32). Much of the deputies’ questioning also occurred while Mr. Klaver himself delayed things by taking his time to hand over his registration and insurance card. Dep. Wilkey also continued to discuss the citation with Mr. Klaver while the canine officer took his dog around the van, which suggests that the traffic-related aspects of the stop had still not come to an end even by that point.

On the other hand, Dep. Wilkey and Dep. McRae spent several minutes questioning Mr. Klaver about his criminal past and the possibility that he had drugs or weapons in his van. Perhaps they could have been completing the ticket during this time? The canine officer also did not just happen to drive by the stop. Rather, Dep. Wilkey called the officer precisely because he “want[ed] to make sure [that Mr. Klaver] ain’t got no pot or anything”—in other words, because he was investigating criminal conduct unrelated to the traffic stop. Dep. Wilkey and Dep. McRae also waited some 14 minutes for the canine unit to arrive. Id., 9:14 (call), 23:15 (arrival). During this delay, Dep. Wilkey even asked Dep. McRae: “you seen [the canine officer] yet?”—a question that could suggest the deputies had been dragging things out to give this officer more time to arrive.

Dep. Wilkey and Dep. McRae respond that they are at least entitled to qualified immunity because no clearly established legal rule gave them “fair notice” that their stop lasted too long under the circumstances. Yet the Supreme Court has adopted a “bright-line rule” that officers may not detain a driver for longer than necessary to complete a traffic stop simply because they want to investigate other crimes. Under Mr. Klaver’s view of the facts here, Dep. Wilkey and Dep. McRae did just that. Indeed, the deputies do not really contest the “law”: they do not dispute that if they extended the stop longer than they needed for the traffic infractions, Rodriguez’s rule would apply. Gambrel, 25 F.4th at 404. Rather, they contest the “facts”: they claim that they did not extend the stop. Id. The legal defense of qualified immunity does nothing to insulate this factual dispute from the jury.

Dep. McRae also criticizes the district court for failing to analyze his conduct independently of Dep. Wilkey’s. Dep. McRae is correct that we may not hold him liable for Dep. Wilkey’s conduct on a vicarious- liability theory; he instead must have personally participated in the allegedly illegal seizure. See Pineda v. Hamilton County, 977 F.3d 483, 490 (6th Cir. 2020). But a reasonable jury could find that he did. Among other evidence, Dep. McRae arrived just a minute after the stop and recommended that they run a “tag match” of the van. Dash-Cam Video, R.233, 2:52–3:03. Dep. McRae also agreed that they should call a canine officer because Mr. Klaver would “say no to a search.” And while Dep. McRae questioned Mr. Klaver alone, he reiterated that they were still properly detaining him due to the tag obstruction and tinted windows.

Question 2: Did the officers have reasonable suspicion to prolong the stop?

Because a jury could reasonably find that Dep. Wilkey and Dep. McRae prolonged the stop, they would violate the Fourth Amendment under Mr. Klaver’s version of the facts unless they had “independent reasonable suspicion” for that extended seizure.

Dep. Wilkey’s and Dep. McRae’s briefs identify four pieces of evidence as their grounds for reasonable suspicion to believe that Mr. Klaver possessed drugs:

(1) The deputies suspected that Mr. Klaver might be a sovereign citizen;

(2) Mr. Klaver removed the tint from his window and lied about doing so during the stop; (3) Mr. Klaver was shaking; and

(4) He was generally uncooperative and did not respond to the officers’ questions about the shaking.

The deputies have not argued that the excessive tint or obstructed license plate could also help create a reasonable suspicion that Mr. Klaver was transporting drugs, so we need not consider those grounds. And while we must avoid a “divide-and-conquer analysis” that examines their four factors “in isolation from each other,” United States v. Arvizu, 534 U.S. 266, 274 (2002), we do not think the first two factors should go into the reasonable-suspicion calculus at all on the facts of this case.

To begin with, we may reject the deputies’ first factor—Mr. Klaver’s sovereign-citizen status— based solely on the conclusory fashion in which they have presented it to us. The deputies believed that Mr. Klaver might be a sovereign citizen (an individual known to be “uncooperative”) because he asked if they were detaining him and hesitated before providing his license. Yet the video shows that Mr. Klaver was reasonably polite, not loudly confrontational. Unless everyone who is reluctant to speak with the police might be a “sovereign citizen,” the deputies’ claim appears to have rested more on a “subjective hunch” than objective facts. They have thus not shown enough for this factor to have relevance.

In addition, we may reject the deputies’ second factor—that Mr. Klaver removed the window tint and lied about doing so—because it is not clear that they knew of this conduct when they allegedly decided to extend the stop. Mr. Klaver removed the window tint around 8:20 p.m., after Dep. Wilkey had already called for the canine officer. Mr. Klaver also engaged in this conduct outside the deputies’ presence and immediately rolled his window back down, so it is not clear when the deputies even learned that he had done so (they may have learned of Mr. Klaver’s actions only later after he posted his cellphone videos of the stop on YouTube). Mr. Klaver’s subsequent false statements about the window tint likewise came near the end of the stop, well after the deputies had (allegedly) prolonged it. Because we assess reasonable suspicion based on the facts that the officers knew at the time that they prolonged the seizure, these unknown facts likewise cannot go into the reasonable-suspicion calculus at this stage.

Is Physical Shaking an Independent Factor to Establish Reasonable Suspicion?

These two conclusions leave only Mr. Klaver’s shaking and refusal to cooperate. Dep. Wilkey and Dep. McRae noticed immediately that Mr. Klaver was “shaking like crazy.” At that early point, Dep. Wilkey opined that they should “run a dog around him” to “make sure he ain’t got no pot or nothing.” Yet what about Mr. Klaver’s shaking suggested that he might be committing a crime? There are two ways to look at this question.

Perhaps the shaking suggested that Mr. Klaver was nervous because he “was in possession of [an] illicit substance.” Yet many law-abiding people show their nerves in the same way when confronted by the police. So we have always given nervous shaking little “weight,” Howard, 815 F. App’x at 77, and have said that it amounts to a “weak” indicator of crime, United States v. Calvetti, 836 F.3d 654, 665 (6th Cir. 2016).

And qualified immunity does protect officials who make mistakes of fact, such as a mistake about whether a suspect is impaired. See Pearson v. Callahan, 555 U.S. 223, 231 (2009). But Dep. Wilkey and Dep. McRae mention this theory only in passing. And they frame Mr. Klaver’s shaking as giving rise to a mistake of law—whether Mr. Klaver was shaking so severely as to create reasonable suspicion of impairment.

We cannot answer this legal question now because of a dispute in the historical facts over the nature of the shaking. The dash-cam video did not record it. And the summary-judgment record contains mixed evidence over whether Mr. Klaver’s shaking resembled the “trembling hand” of a nervous driver, Richardson, 385 F.3d at 630, or the impaired hand of an incapacitated one. Although, for example, the deputies conclusory testified that they thought Mr. Klaver might be impaired (and he did in fact have a disease that affected his mobility), they did not require him to take field-sobriety tests or even question him about his ability to drive the van. Taking the facts in the light most favorable to Mr. Klaver, a jury could find that the deputies could have reasonably concluded only that Mr. Klaver was nervous.

Apart from his nervousness, the officers lastly highlighted Mr. Klaver’s reluctance to cooperate or respond to questions, including about why he was shaking. Yet a suspect generally does not have a duty to cooperate, and so the lack of cooperation does not alone provide reasonable suspicion to believe that the suspect is committing a crime. At the same time, we have recognized that a suspect’s vague or nonresponsive answers can bolster a reasonable suspicion that primarily rests on other factors. See United States v. Smith, 594 F.3d 530, 541 (6th Cir. 2010). Here, however, Mr. Klaver largely cooperated. He answered most of the questions put to him— sometimes more than once—such as whether he had ever been arrested, whether he had taken any medication, and whether he had drugs or contraband in the van. In fact, he refused to answer only two questions before Dep. McRae and Dep. Wilkey called for the dog: where he was going and whether he had a disability.

Conclusion

In sum, when we review the evidence in the light most favorable to Mr. Klaver, Dep. Wilkey and Dep. McRae lacked reasonable suspicion that Mr. Klaver was committing other crimes. A suspect’s nervousness and refusal to cooperate have played only minor roles in our other reasonable- suspicion decisions. See, e.g., Calvetti, 836 F.3d at 666–67; Stepp, 680 F.3d at 665. Putting the two together does not lend the deputies a major justification for reasonable suspicion.

That may be true, the deputies respond, but they are at least entitled to qualified immunity on this reasonable-suspicion question. Once again, however, our clearly established caselaw would have left no doubt for any reasonable officer that Mr. Klaver’s nervousness and reluctance to cooperate did not create reasonable suspicion, absent additional evidence of criminal activity. See Gambrel, 25 F.4th at 400. We have a mountain of caselaw indicating that heightened nerves represent weak evidence of wrongdoing and cannot be the primary justification for a stop. See Winters, 782 F.3d at 299 (citing cases). Consider Richardson. There, an officer stopped a car for a traffic violation and noticed that all of the passengers were nervous, including the driver who handed over his license with a shaking hand. 385 F.3d at 627. Yet this fact did not suffice to create a reasonable suspicion of wrongdoing, even when combined with other factors like the occupants’ “conflicting explanations of their travel plans[.]” Id. at 630–31; see Urrieta, 520 F.3d at 577; see also Johnson, 482 F. App’x at 145.

The caselaw on which the deputies rely reinforces this point. Dep. Wilkey cites United States v. Ellis, 497 F.3d 606 (6th Cir. 2007). But the traffic stop there lasted “only twenty-two minutes” before the driver gave consent to a search. Id. at 613. And it is not clear that the traffic-related purposes for the stop in Ellis ever came to an end because the defendant, a passenger in the car, had given a “false alias” that the officer “was unable to confirm” before the search. A reasonable jury in this case, by contrast, could find that the stop’s traffic-related purposes would have ended well before the dog sniff if the officers had not been investigating drug crimes.

Dep. McRae cites Lott. In that case, however, the officer had reasonable suspicion to continue the stop because the driver admitted that he had marijuana. 954 F.3d at 922. Mr. Klaver, by contrast, adamantly and consistently denied that he possessed drugs.

We affirm.

Information for this case was obtained from Klaver v. Hamilton County, Tennessee, No. 22 – 5083/5084 and plaintiff’s pro se complaint.

This case was issued by the Sixth Circuit Appellate Court and is binding in Kentucky, Michigan, Ohio and Tennessee.

Lessons Learned:

In Rodriguez United States, 575 U.S. 348 (2015) the U.S. Supreme Court held “The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket … but whether conducting the sniff “prolongs” – i.e. adds time to – “the stop”.”. In this case the Sixth Circuit Appellate Court determined that Dep. Wilkey and Dep. McRae did prolong the traffic stop. At the point the the traffic stop was prolonged beyond the initial purpose without additional Reasonable Suspicion, Mr. Klaver’s Fourth Amendment rights were violated. Specifically the court opined “A reasonable jury in this case, by contrast, could find that the stop’s traffic-related purposes would have ended well before the dog sniff if the officers had not been investigating drug crimes.”. Here the officers had a gut feeling and their gut feeling was wrong. But even if the gut feeling was correct and Mr. Klaver did have unlawful narcotics the traffic stop would have been unlawful at the point the stop was prolonged.
A factor that law enforcement must be aware is that unlike yesteryear where the officers report would have been the primary account of what occurred during an investigative detention, today, the court by way of body camera’s, in cruiser cameras and phone cameras, will literally examine officer’s actions frame by frame.Based on the substantive amount of video from this stop, the court determined that the officer’s actions to write a ticket for window tint was delayed when the deputies began to question Mr. Klaver about his service in the Marine Corps, arrest history, and possible narcotic possession. Specifically, the court opined “Because we assess reasonable suspicion based on the facts that the officers knew at the time that they prolonged the seizure, these unknown facts likewise cannot go into the reasonable-suspicion calculus at this stage.”.
In court the deputies testified that part of the reason the stop was prolonged is that the deputies believe that Mr. Klaver may have been impaired.However, the deputies did not conduct any actions that supported their suspicion. Specifically the court opined “Although, for example, the deputies conclusory testified that they thought Mr. Klaver might be impaired (and he did in fact have a disease that affected his mobility), they did not require him to take field-sobriety tests or even question him about his ability to drive the van.”. Courts will often apply the totality-of-the-circumstance doctrine when examine law enforcement behavior. Because the officers did not complete field sobriety tests, prolonging a stop because there was some suspicion that the suspect was impaired is lost.
In this case the deputies had a gut feeling and it was wrong.For more on Gut Feeling see Officer Williams’ Gut Feeling was Scientifically Accurate But was it Legally Justified? And The Officers had a Gut Feeling that Lyin’ Ryan was Hiding Marijuana and a Gun but did they have Reasonable Suspicion?.
Deputy Cameron Wilkey resigned in 2019 because of many challenges he experienced at work.He later would be indicted on forty-four counts on multiple felonies to include rape. For more information on former Deputy Wilkey see: