It seems our courts are following the Fourth Circuit in getting fed up with law enforcement and prosecutors alike trying to mold innocent acts into reasonable suspicion as a basis to detain you beyond the completion of a traffic stop .
In State v. Moore, the SC Court of Appeals stated:
We share the Fourth Circuit’s concern regarding the State’s inclination toward whatever facts are present, no matter how innocent, as indicia of suspicious activity. See State v. Burgess.
Members of the Spartanburg police department were observing traffic along the I-85 corridor in Spartanburg County on June 30, 2010. Around 1:10 a.m. they stopped Moore for driving 70 mph in a 60 mph zone and failing to maintain his lane. When police walked to the vehicle, Moore was talking on his cell phone. Police smelled alcohol coming from the Moore and learned the vehicle was a rented by a third party who was not there. Moore passed a field sobriety test and denied police permission to search the vehicle. Police issued a warning ticket and the purpose for the stop was complete. However, instead of letting Moore go police detained him until the K-9 drug detection unit could arrive. Once on scene, the drug dog alerted to the vehicle and a search recovered crack cocaine, a gun, and a bundle of money. Moore was indicted for trafficking crack and following trial, was convicted and sentenced to 25 years prison.
Did police have reasonable suspicion to further detain Moore beyond the scope of the traffic stop?
“Lengthening the detention for further questioning beyond that related to the initial stop is acceptable in two situations: (1) the officer has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring; or (2) the initial detention has become a consensual encounter.” State v. Provet.
The state argued 14 factors that gave rise to reasonable suspicion:
- Moore turned on his left turn signal when pulled over (sign he might flee);
- Moore took a long time to pull over;
- Never turned off his turn signal;
- Admitted to drinking (typically to calm drug trafficker’s nerves);
- Smoked a cigarette;
- Talked on his cell phone;
- Hands were shaking pulse was elevated;
- Moore tried to pick up his cell phone once he got out of the car;
- Moore had large amount of cash on him while unemployed;
- Rental car from third party;
- Driving on I-85 (known drug corridor from Atlanta);
- Claimed going to visit grandmother;
- Moore stretched during questioning (felony stretch);
- Moore remained nervous after being advised he was only getting warning ticket.
When viewing all of the factors cited by the State as evidence of flight or suspicion that a crime is being committed, its not hard to imagine that most people innocent of a crime would fall afoul of this standard.
The Court recognized this and held that the State must do more than simply label a behavior as suspicious to make it so. We recognize that factors consistent with innocent travel can, when taken together, give rise to reasonable suspicion, but we do not believe the present factors eliminate a substantial portion of the innocent travelers. See United States v. Digiovanni. In our view the present factors have been expanded by the State in an effort to distinguish this case from Provet. We find the facts do not amount to reasonable suspicion of a crime, and the drugs discovered during the search of the vehicle must be suppressed.
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