Show notes
In this archive episode, Dennis explains when it is okay to run criminal history checks. Recorded on 07/02/2018.
US v Finke 1996 - https://scholar.google.com/scholar_case?case=9193536753118804005andq=finkeandhl=enandas_sdt=3%2C31andfbclid=IwAR1ap0l0HNCB-IOb7_xr6eN7Ke9svoYa9iqYgUIDQ5DD__eC03xBkAXzIi4 (https://scholar.google.com/scholar_case?case=9193536753118804005andq=finkeandhl=enandas_sdt=3,31)
We do not believe that Finke's Fourth Amendment rights were infringed when Delmore decided to wait five minutes for the results of the criminal history check he had requested. We note that there is little authority addressing when and under what circumstances a criminal history check is permissible during a routine traffic stop. Recently, the Tenth Circuit indicated that for officer safety reasons such a check would be an unobjectionable part of every routine traffic stop:
[Criminal history] checks are run largely to protect the officer. Considering the tragedy of the many officers who are shot during routine traffic stops each year, the almost simultaneous computer check of a person's criminal record, along with his or her license and registration, is reasonable and hardly intrusive.
United States v. McRae, 81 F.3d 1528, n. 6 (10th Cir.1996). Other cases demonstrate an implied acceptance of criminal history checks as generally reasonable, by beginning their unconstitutional detention analysis only after the point at which a criminal history report has been obtained. For example, in Crain, 33 F.3d at 483, the Fifth Circuit held that it was not an unreasonable or illegal detention to question the driver and passengers of a car about matters unrelated to the traffic stop while the officers were waiting for the results of a computer check, including a criminal history search. This, of course, assumes that it was reasonable to ask for the criminal history check and to extend the detention until it was received. See also United States v. Sandoval, 29 F.3d 537, 538, 542-43 (10th Cir.1994) (finding criminal history report of drug arrest, standing alone, insufficient to extend traffic stop, but not questioning NCIC[2] request producing criminal record); McManus, 70 F.3d at 993 (approvingly noting use of NCIC criminal history check in routine traffic stops to support using of same check in VIN identification investigation).
1280
*1280 Thus there is some support for the argument that requesting a criminal history check is a reasonable, constitutional part of all or most traffic stops. We find such a bright line rule troubling, however, because often criminal history checks take longer to process than the usual license and warrant requests, and after a certain point meaningful additional time could, we believe, constitute an unreasonable detention of the average traveller. Unless technology permits criminal record requests to be conducted reasonably contemporaneously with the license and warrant checks normally solicited, we are reluctant to say such checks are always reasonable or justified in the average traffic stop.
To decide this case, however, we need not adopt or reject any talismanic rule regarding the propriety of criminal history checks during routine traffic detentions, as it quickly became clear to Officer Delmore that this was not an average stop. Delmore was immediately confronted with suspicious behavior and circumstances — conduct consistent with drug trafficking. By the time Officer Delmore called in the criminal history check, we believe he had sufficient reasonable and articulable suspicions of drug courier activity to justify a speedy, unintrusive criminal record inquiry in addition to a warrant and license check. See Rivera, 906 F.2d at 322 (reasonable suspicions warranted limited questioning outside the scope of traffic related investigation); United States v. Barahona, 990 F.2d 412, 416 (8th Cir.1993) (if circumstances "give rise to suspicions unrelated to the traffic offense, an officer may...
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