As we have discussed here in previous posts, the government is pretty much unlimited in its ability to circumvent the 4th Amendment during traffic stops.  No court has shown a willingness to curtail an officer’s willy-nilly decision to search a vehicle simply because he wants to.  It is just too easy nowadays.  The Second District Court of Appeals continued this trend in its decision in State v. Vineyard, 2014 Ohio 3846.

While the result in Vineyard is unsurprising, and the court accurately states the law, what is interesting about the decision is just how illogical the facts were applied to the law.

The facts:

Vineyard was dropping off his kids at a latchkey program operated by the Five Rivers Metro Parks in Dayton.  While on patrol, officer Jones noticed Vineyard stop in front of the building, drop off his children and drive away.  But for the fact that he stopped in a marked fire lane, this behavior would not ordinarily lead to a police encounter.  Because officer Jones could not tolerate this grievous activity, however, he proceeded to make a traffic stop.  There is nothing wrong with his decision to issue a ticket to Vineyard, even if most of us would be pretty upset at the lack of discretion utilized here.

Once stopped, Vineyard provided his name, identification and proof of insurance as requested.  Jones then went to his cruiser and ran his information through the LEADS system.  The little computer spat out its information on Vineyard, which showed that he had a suspended license.  Uh oh.

More importantly, though, the LEADS output showed that Vineyard had an expired carrying concealed weapon permit (CCW).  The permit had expired a few months before this incident.  The data also showed that in prior encounters with police, Vineyard had had a weapon.  While the opinion doesn’t address the issue, it is apparent that Vineyard had been in possession of the firearm during these previous encounters lawfully, otherwise the testifying officer and the court surely would have pointed out his prior convictions.  After all, until recently, Vineyard was absolutely allowed to possess a weapon in his vehicle.

Officer Jones testified that these facts made him concerned for his safety.  We must have a lot of teacups on the force. I’m not sure how a gentleman with no prior weapons convictions, an expired CCW, suspended driver’s license, dropping off his children in front of “Adventure Central,” adds up to a danger.  Alas, officer safety is paramount.

Anyway, Jones then completed the citation for driving under suspension, a first degree misdemeanor, within a 5-7 minute period.  Did Jones then arrest Vineyard for DUS?  No.  In fact, Vineyard ultimately drives away at the end of the story.  Did Jones hand Vineyard the citation and tell him of his court date?  No. There’s some searchin’ to do.

Jones waited a few more minutes after completing the citation to exit his cruiser, go back to Vineyard, instruct him to exit his car and stand on the sidewalk.  Jones asked Vineyard if he had a weapon in the car, and Vineyard responded in the affirmative. Vineyard then told Jones where the gun was located.  Right around this time the second officer arrives on the scene.  Jones then removes the firearm from Vineyard’s vehicle and places it in the trunk of his cruiser.

Jones then delivers the citation to Vineyard for DUS and allows him to drive away, even though he could have been arrested and his car towed.  The entire traffic stop took 41 minutes.  Jones testified that the typical DUS stop lasts “maybe 20 minutes at the most.”

Vineyard is later indicted for Improper Handling of a Firearm in a Motor Vehicle (Loaded/no license), a fourth-degree felony.  Vineyard moves to suppress the gun as having been obtained during an unconstitutional seizure and subsequent search of his automobile.  Vineyard argued that his traffic stop had been unreasonably extended in duration beyond the time within which was needed to complete the traffic citation.  The trial court overruled the motion and he appealed to the Second District.

The Law:

The law is fairly clear that an officer may lawfully stop an automobile when he has reasonable suspicion (or probable cause) that the driver committed a traffic violation.  That was obvious here. No problem with the stop.  However, the law is also clear that the duration of a traffic stop may not last any longer than is necessary to complete the traffic citation, here 5-7 minutes.  Otherwise, the continued detention is unlawful and any subsequent searches are a product of an illegal seizure.

If an officer wishes to continue to detain the driver beyond the time in which it takes to issue the citation, he must then be able to point to specific and articulable facts giving rise to a reasonable suspicion that crime is afoot (i.e., a “Terry Stop”).  In short, the officer must have some other, valid justification for the seizure that is independent of the traffic stop.   It is quite obvious that the stop here was extended way beyond the time it took Jones to complete the DUS ticket.  He had Vineyard exit the vehicle and asked him questions related to the gun only after he had completed writing the citation.

The trial court determined that the continued detention was lawful because (1) the LEADS report indicated his CCW was expired; (2) he had been in possession of a firearm during prior traffic stops; (3) he was being cited for an arrestable offense – DUS; (4) and Jones had a legitimate concern whether Vineyard was armed.  All of this adds up to the conclusion that the continued detention of Vineyard was reasonable.

This is nonsense and illogical.  If Jones wanted to arrest Vineyard, have the car towed and search it as part of a routine inventory process, none of this would be an issue. Finding the gun would have been inline with constitutional standards.  However, when Jones obviously decided not to place him under arrest, he had no further basis to continue the seizure in order to ask about the weapon.

The Appellate court upheld the the trial court’s ruling; after noting that the traffic stop had obviously been completed prior to any discussion about firearms, the Court stated the following:

However, a search of Vineyard’s driver’s license through LEADS revealed that Vineyard was driving under suspension, an offense for which Vineyard could be arrested, and Officer Jones testified that he had not yet decided whether to arrest Vineyard for that offense. The report further indicated that Vineyard had a gun during prior encounters with the police and that Vineyard’s CCW permit expired a few months earlier.

Officer Jones testified that an individual is required to notify the police officer at each encounter if the individual has a CCW permit and the location of the weapon. Vineyard had not informed Officer Jones that he had a CCW permit or that he had a gun in his vehicle. These facts were sufficient to create a reasonable and articulable suspicion that Vineyard might unlawfully have a firearm in his vehicle and to cause Officer Jones to be reasonably concerned for his safety. Accordingly, Officer Jones acted reasonably in requesting backup before concluding the traffic stop and in asking Vineyard about the possible presence of a gun in the vehicle prior to allowing Vineyard to drive away. Vineyard’s continued detention so that Officer Jones could confirm or dispel his concern that Vineyard might have a gun in his car without a valid CCW permit was not unlawful. And once Vineyard indicated that he had a gun in the car, Jones lawfully retrieved the gun from the vehicle.

It would have been one thing for the court to hold that because Vineyard could have been arrested, he was not unlawfully detained after the ticket was completed.  The officer could contemplate for a reasonable amount of time whether to take him into custody or not.  I could live with that limited holding.  However, it is the fact that the court uses these facts in order to get to reasonable suspicion that is the problem.  Let’s take a look at what the appellate panel felt amounted to reasonable suspicion.

(1) Vineyard had a weapon during prior encounters.

Well, okay.  He must have had it lawfully during those encounters.  That’s the point of a CCW, right? Also, it appears that these prior encounters with police were in 2008, 2010 and 2011.  The stop was in 2012. That is what we call “stale information.” Perhaps he no longer carries a gun due to the fact that his CCW expired.

Reasonable suspicion requires more than a gut sense or “inchoate hunch” that something is going on.  I have no doubt that Jones had a suspicion that Vineyard had a gun, but that is not the constitutional standard.  This innocuous fact about the CCW permit could not possibly give rise to reasonable suspicion that a gun was in the car.  If so, then all Ohioans who have allowed their CCWs to expire are now subject to these types of prolonged seizures.

(2) Vineyard had not informed the officer that he had a CCW, which he is required to do under law.  Further, Vineyard had not mentioned he was in possession of a weapon.

Whoa.   Here is where the logic train goes completely off the rails.

How in the world would Vineyard’s failure to mention an expired CCW permit, or that he had a gun, provide reasonable suspicion that a firearm was actually in the car? In order to lawfully detain the driver, Jones was required to point to specific facts that were known to him prior to his decision to continue the seizure.  Jones never knew of the gun until after he had prolonged the stop in the first place.  In Short, Vineyard’s failure to mention the gun would not have been known to Jones at the time he made the decision to seize him.  Talk about putting the cart before the horse.

Moreover, Vineyard was not required to mention anything about a CCW because …  drum roll … he didn’t have one! Remember, it had already expired.  Are we now required to mention that we used to have a CCW whenever stopped for speeding?  The statute governing CCWs doesn’t require this.

To use an absurd hypothetical as an illustration, this decision could just as easily have read something like:  prior convictions for cocaine, coupled with a failure to tell the officer you are carrying 12 kilos of cocaine (found later), amounts to reasonable suspicion that you are now in possession of cocaine.  See how that works.

It is important to remember that hindsight doesn’t satisfy the 4th Amendment.  You may only look to the facts known to the officer at the time he decides to seize or search.  This case basically allows officers to prolong traffic stops beyond the constitutional limits if a person has an expired CCW, and on some previous occasion, lawfully possessed a weapon.  Period.  Apparently, no other objective facts need be demonstrated for an officer to have reasonable suspicion that a firearm is illegally in the car.

Again, I wish the court had simply held that the officer was entitled to seize Vineyard until he decided to arrest him or not, and while seizing him for that purpose, permitted to ask him questions about a weapon.  What’s troubling is that the court believed these facts gave rise to a reasonable suspicion.  This affects all drivers going forward.

While the legislature has been unable to clear out our growing prison population with recent legislation, one area of criminal law that it has been successful in overhauling is the sealing of conviction requirements. The net effect of recent revisions to the law has been to expand the group of persons eligible to have their record sealed.

As an aside, because I see this often, I would like to educate some folks about the appropriate language here: while most people refer to having their record “expunged,” that is inaccurate. The vast majority of defendants have their record “sealed.” What is the difference? When a conviction is sealed, all records related to the case are placed in a sealed envelop and stored away somewhere in the bowels of the court and treated as if they don’t exist. There is no longer an official public record of the case; it is as if the defendant was never charged, never appeared in court, never convicted and never punished. The case didn’t happen. The defendant can then lawfully and accurately say that he has never been convicted of a crime – or at least the sealed crime. There are very limited ways in which the sealed conviction can ever come to light in the future.

In contrast, when a record is actually “expunged,” the documents are destroyed – shredded, set on fire, eaten by someone, whatever. The documents literally can never be retrieved because they physically disappear from the earth forever. Very few circumstances allow a conviction to be expunged (e.g., convictions for prostitution when the defendant was a victim of human trafficking or juvenile adjudications of delinquency).

Regardless, the sealing of a conviction does the trick for most defendants when they go applying for jobs, and our policymakers have now made it even easier obtain that relief. On September 19, 2014, SB 143 will go into effect and it slightly revises R.C. 2953.31, the section that defines whom is an “eligible offender” for purposes of the sealing statute. The new definition will allow someone convicted of 2 misdemeanor offenses to have both convictions sealed, even if the convictions were for the same offense.

Under prior law, a defendant could have up to two separate misdemeanor convictions sealed as long as they were not for the same offense. In other words, if the defendant had a possession of marijuana conviction and a separate theft conviction, he was eligible to seal both cases so long as he met all the other criteria. But, if that same defendant had two separate theft convictions, he was ineligible to have them sealed. Hey, if you don’t learn your lesson after the first conviction, that’s on you, Mr. Defendant. 

As of September 19, 2014, this limitation on eligibility is eliminated.  Just something to keep in mind.