A police officer in North Carolina saw a Jeep on I-40 driving “erratically.”  The officer conducted a traffic stop to see if the driver was fatigued or impaired. The driver (Bernard) seemed nervous when the officer approached the Jeep and asked for license and registration, so the officer asked if he could do a quick pat-down frisk. Bernard consented and the officer then asked Bernard to sit in his patrol car with him while he ran the license checks. While the checks were running (5-7 minutes) the officer engaged in conversation with Bernard about where he was from and his travel plans. Finding the responses suspicious, the officer asked Bernard if there were any firearms or controlled substances in the Jeep, to which Bernard answered there were not. When the warrants check came back negative, the officer wrote Bernard a warning ticket and handed him his license and registration back. As Bernard opened the door to get out of the patrol car, the officer asked him if he could ask him a few more questions. Bernard told the officer “yes” and the officer asked him again if he had controlled substances in the car. Again, Bernard said no. The officer then asked for consent to search and Bernard consented via a written consent form. After signing the form, Bernard told the officer he had a weapon in a box on top of the top of the Jeep. Another officer arrived and a search of the vehicle resulted of two firearms (one on top and one inside) as well as Mason jars full of marijuana. The officers arrested Bernard and, without reading Miranda warnings, they asked Bernard about what was discovered and he confessed to possessing three pounds of marijuana. In further conversation on the way to the detention center, the officer said “there may be some people up there that might want to talk to him and that he might want to think about trying to help himself out.” In response to this statement, Bernard stated he grew the marijuana himself and was planning on selling it for $500 a jar.

At trial, Bernard sought to have the evidence excluded as a result of Fourth Amendment violations and the statements suppressed based on Fifth Amendment (Miranda) violations. The District Court denied the motions, resulting in this appeal.

The Fourth Circuit held that:

  1. The traffic stop was valid because of his observations that gave him a probable cause that Bernard was fatigued or impaired and the traffic stop lasted a reasonable period of time.
  2. The traffic stop was extended only after Bernard gave verbal consent (“Can I ask you a few more questions?”) and written consent (to search the vehicle).
  3. The officer’s statement to Bernard that “there may be some people up there that might want to talk to him and that he might want to think about trying to help himself out” was the functional equivalent of interrogation and therefore Miranda was triggered and a warning should have been given.

Editor’s Notes: This is yet another “extended traffic stop” case in a long line of cases refining what is or is not a Fourth Amendment violation when extending a traffic stop into an investigative stop after the landmark Supreme Court decision in Rodriguez v. United States, 135 S. Ct. 1609 (2015).  This case provides a great example of the “Trooper Two-Step.” When the traffic stop was over, Officer Willis asked Bernard if he could ask a few more questions, to which Bernard said “yes.”  This request to ask more questions was the key to preventing a Fourth Amendment violation.  We have seen this now in a number of cases. For example, in an 11th Circuit case the officer asked, “hey before you go, you care if I ask you a few more questions?” United States v. Burwell, No. 18-13039, at *6 (11th Cir. Feb. 27, 2019). 

KEY TAKEAWAY: When a traffic stop has been completed, if you ask for and receive consent to ask questions unrelated to the traffic stop, it will prevent a Rodriguez violation.

To read or download the full decision CLICK HERE