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Third Circuit Suppresses Evidence Found After Police Created Safety Concern to Justify Prolonging Traffic Stop

by Anthony W. Accurso

The U.S. Court of Appeals for the Third Circuit held that prolonging a traffic stop, even for a short period of time, to ensure an officer’s safety is unreasonable where the officer himself created the safety risk through his actions.

Around 2:00 a.m. in the early morning of February 23, 2019, Philadelphia Police Officers Lance Cannon and Daniel Gonzalez were patrolling when they witnessed a “pickup truck roll through a stop sign and failed to signal a turn.” Suspecting the driver was intoxicated, they initiated a traffic stop.

Officer Cannon approached on the driver’s side and, upon interacting with the driver, smelled alcohol. Cannon collected the license, registration, and keys from the driver and then had him exit the vehicle for a field sobriety test. Officer Gonzalez then took the driver behind the vehicle and began conducting the test.

During this time, Officer Cannon entered the vehicle with invitation or consent such that his knees were on the driver’s seat with his feet hanging out of the driver’s side doorway. He used his flashlight to survey the truck’s interior and to interact with the passengers. He assessed that the front passenger was drunk, and he believed this person was attempting to draw attention away from the rear passenger, Jamel Hurtt.

When Gonzalez noticed Cannon had placed his body inside the truck, he feared for Cannon’s safety. He was concerned that this behavior in a “high-crime area” was dangerous. “So [the] first thing in my mind was to put [the driver] in the back of [the patrol car] and get back to my partner, try to clear the two males [the two passengers] before we could get back to doing the field sobriety test,” Gonzalez later testified.

By the time Gonzalez secured the driver in the patrol car, Cannon had exited the truck, moved to the passenger side, and ordered the front passenger out of the vehicle for a pat search. Around this time, Hurtt reached for a tool bucket on the seat next to him. This prompted the officers to order him out of the vehicle as well. Cannon searched him and discovered a loaded pistol in his waistband.

Because Hurtt had a prior felony conviction, he was indicted for illegal possession of a firearm by a felon under 18 USC § 922(g)(1). He filed a pretrial motion to suppress the search because, among other things, he claimed the officers had unreasonably prolonged the traffic stop.

The U.S. District Court for the Eastern District of Pennsylvania denied his motion, finding no impermissible extension of the traffic stop, and Hurtt negotiated a plea deal that preserved his right to appeal the suppression issue.

The Court of Appeals began its analysis with Rodriguez v. United States, 575 U.S. 348 (2015), in which the Supreme Court held that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”

The Third Circuit considered the application of Rodriguez in United States v. Green, 897 F.3d 137 (3d Cir 2018). It held that “[a]n unreasonable extension occurs when an officer, without reasonable suspicion, diverts from a stop’s traffic-based purpose to investigate other crimes.” The Rodriguez Court added that “safety precautions taken in order to facilitate investigation of other crimes are not justified as part of a routine stop.”

An inquiry under Green proceeds in two stages: “we must first determine if and when the stop was measurably extended; and second, after determining when the stop was extended—the Rodriguez moment, so to speak—we can assess whether the facts available … at the time were sufficient to establish reasonable suspicion.” The Court in the present case explained that  “we ask whether the mission of the traffic stop was continuously carried out before the discovery of evidence giving rise to a reasonable suspicion of criminality. Any break in that mission taints the stop because it is the result of an unreasonable delay.” The Rodriguez Court stated that even a “de minimis” extension of a traffic stop to perform “unrelated inquiries” from the purpose of the traffic stop is unlawful if not supported by reasonable suspicion.

“When evaluating whether an officer was on-mission, we consider the ‘legitimate and weighty interest in officer safety’ and thus will tolerate additional intrusions, such as forcing a driver out of a vehicle,” said the Court, quoting from Rodriguez.

However, police are not permitted to stray from the “original mission of the traffic stop and thereby create an exigency to support the resulting delay and any subsequent arrest,” the Court stated. It explained that the police-created exigency doctrine “prevents the government from deliberately creating its own exigent circumstances to justify otherwise unconstitutional intrusions.” See Kentucky v. King, 563 U.S. 452 (2011). Being in a high-crime area, without more, doesn’t justify a constitutional intrusion, stated the Court. Illinois v. Wardlow, 528 U.S. 119 (2000); Brown v. Texas, 443 U.S. 47 (1979).

Turning to the present case, the Court determined that the “Rodriguez moment” occurred when “Gonzalez had to interrupt his attempt to determine the sobriety of the driver for the purpose of ensuring Cannon’s safety.” The Court explained that Gonzalez interrupted the original mission of the traffic stop, i.e., investigate a possible DUI, to ensure the safety of Cannon, who created the potentially dangerous situation himself by investigating other possible crimes. The Court stated
“[a]t that point, neither officer had reasonable suspicion to search Hurtt.”

The Government argued that, because the stop occurred in a high-crime area, additional steps were necessary to secure the safety of the officers. The Court rejected this argument by saying that, “[e]ven if Cannon were concerned with enhancing the security of the traffic stop, it is not at all apparent how  ‘engaging’ with the passengers by getting inside the truck with two unknown passengers enhanced security. On the contrary, this precarious conduct required Gonzalez to pause the sobriety test so that he could ensure his partner’s safety.” Thus, the Court concluded that ensuring Cannon’s safety was not related to the initial mission of the traffic stop, so interrupting the field sobriety test for this reason was off-mission.

The Court explained that there was no reasonable suspicion for the off-mission conduct that extended the traffic stop in violation of Rodriguez, and the subsequent search of Hurtt violated his Fourth Amendment rights. It’s irrelevant that the extension of the traffic stop was de minimis. Rodriguez.

Accordingly, the Court reversed the district court’s denial of Hurtt’s motion to suppress, vacated his conviction, and remanded. See: United States v. Hurtt, 31 F.4th 152 (3d Cir. 2022). 

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Related legal cases

United States v. Hurtt

Kentucky v. King

Supreme Court of the United States
563 U.S. ___; 131 S.Ct. 1849; 179 L.Ed.2d 865; 2011 U.S. LEXIS 3541

KENTUCKY, Petitioner,
Hollis Deshaun KING

No. 09–1272.

Argued Jan. 12, 2011.

Decided May 16, 2011.

Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

*1 Police officers in Lexington, Kentucky, followed a suspected drug dealer to an apartment complex. They smelled marijuana outside an apartment door, knocked loudly, and announced their presence. As soon as the officers began knocking, they heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence. The officers announced their intent to enter the apartment, kicked in the door, and found respondent and others. They saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search. The Circuit Court denied respondent's motion to suppress the evidence, holding that exigent circumstances—the need to prevent destruction of evidence—justified the warrantless entry. Respondent entered a conditional guilty plea, reserving his right to appeal the suppression ruling, and the Kentucky Court of Appeals affirmed. The Supreme Court of Kentucky reversed. The court assumed that exigent circumstances existed, but it nonetheless invalidated the search. The exigent circumstances rule did not apply, the court held, because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence.

Held :

1. The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. Pp. –––– – ––––.

(a) The Fourth Amendment expressly imposes two requirements: All searches and seizures must be reasonable; and a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity. Although “ ‘searches and seizures inside a home without a warrant are presumptively unreasonable,’ ” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650, this presumption may be overcome when “ ‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment,” Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290. One such exigency is the need “to prevent the imminent destruction of evidence.” Brigham City, supra, at 403. Pp. –––– – ––––.

(b) Under the “police-created exigency” doctrine, which lower courts have developed as an exception to the exigent circumstances rule, exigent circumstances do not justify a warrantless search when the exigency was “created” or “manufactured” by the conduct of the police. The lower courts have not agreed, however, on the test for determining when police impermissibly create an exigency. Pp. –––– – ––––.

(c) The proper test follows from the principle that permits warrantless searches: warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Thus, a warrantless entry based on exigent circumstances is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment. A similar approach has been taken in other cases involving warrantless searches. For example, officers may seize evidence in plain view if they have not violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made, see Horton v. California, 496 U.S. 128, 136–140, 110 S.Ct. 2301, 110 L.Ed.2d 112; and they may seek consent-based encounters if they are lawfully present in the place where the consensual encounter occurs, see INS v. Delgado, 466 U.S. 210, 217, n. 5, 104 S.Ct. 1758, 80 L.Ed.2d 247. Pp. –––– – ––––.

(d) Some courts, including the Kentucky Supreme Court, have imposed additional requirements—asking whether officers “ ‘deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement,’ ” 302 S.W.3d 649, 656 (case below); reasoning that police may not rely on an exigency if “ ‘it was reasonably foreseeable that [their] investigative tactics ... Would create the exigent circumstances,’ ” ibid.; faulting officers for knocking on a door when they had sufficient evidence to seek a warrant but did not do so; and finding that officers created or manufactured an exigency when their investigation was contrary to standard or good law enforcement practices. Such requirements are unsound and are thus rejected. Pp. –––– – ––––.

*2 (e) Respondent contends that an exigency is impermissibly created when officers engage in conduct that would cause a reasonable person to believe that entry was imminent and inevitable, but that approach is also flawed. The ability of officers to respond to an exigency cannot turn on such subtleties as the officers' tone of voice in announcing their presence and the forcefulness of their knocks. A forceful knock may be necessary to alert the occupants that someone is at the door, and unless officers identify themselves loudly enough, occupants may not know who is at their doorstep. Respondent's test would make it extremely difficult for officers to know how loudly they may announce their presence or how forcefully they may knock without running afoul of the police-created exigency rule. And in most cases, it would be nearly impossible for a court to determine whether that threshold had been passed. Pp. –––– – ––––.

2. Assuming that an exigency existed here, there is no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Pp. –––– – ––––.

(a) Any question about whether an exigency existed here is better addressed by the Kentucky Supreme Court on remand. P. 17.

(b) Assuming an exigency did exist, the officers' conduct—banging on the door and announcing their presence—was entirely consistent with the Fourth Amendment. Respondent has pointed to no evidence supporting his argument that the officers made any sort of “demand” to enter the apartment, much less a demand that amounts to a threat to violate the Fourth Amendment. If there is contradictory evidence that has not been brought to this Court's attention, the state court may elect to address that matter on remand. Finally, the record makes clear that the officers' announcement that they were going to enter the apartment was made after the exigency arose. Pp.–––– – ––––.

302 S.W.3d 649, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, THOMAS, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. GINSBURG, J., filed a dissenting opinion.

Joshua D. Farley, Frankfort, KY, for petitioner.

Ann O'Connell, Washington, DC, for United States as amicus curias, by special leave of the Court, supporting the petitioner.

Jamesa J. Drake, for respondent.

Jack Conway, Attorney General of Kentucky, Joshua D Farley, Counsel of Record, Bryan D. Morrow, Assistant Attorneys General, Frankfort, KY, for Petitioner Commonwealth of Kentucky.

Jeffrey T. Green, Sarah O'Rourke Schrup, Northwestern University, Supreme Court Practicum, Chicago, IL, Jamesa J. Drake Counsel of Record, Asst. Public Advocate, Kentucky Department of Advocacy, Frankfort, KY, for Respondent Hollis Deshaun King.

Justice ALITO delivered the opinion of the Court.

*3 It is well established that “exigent circumstances,” including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant. In this case, we consider whether this rule applies when police, by knocking on the door of a residence and announcing their presence, cause the occupants to attempt to destroy evidence. The Kentucky Supreme Court held that the exigent circumstances rule does not apply in the case at hand because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence. We reject this interpretation of the exigent circumstances rule. The conduct of the police prior to their entry into the apartment was entirely lawful. They did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies.



This case concerns the search of an apartment in Lexington, Kentucky. Police officers set up a controlled buy of crack cocaine outside an apartment complex. Undercover Officer Gibbons watched the deal take place from an unmarked car in a nearby parking lot. After the deal occurred, Gibbons radioed uniformed officers to move in on the suspect. He told the officers that the suspect was moving quickly toward the breezeway of an apartment building, and he urged them to “hurry up and get there” before the suspect entered an apartment. App. 20.

In response to the radio alert, the uniformed officers drove into the nearby parking lot, left their vehicles, and ran to the breezeway. Just as they entered the breezeway, they heard a door shut and detected a very strong odor of burnt marijuana. At the end of the breezeway, the officers saw two apartments, one on the left and one on the right, and they did not know which apartment the suspect had entered. Gibbons had radioed that the suspect was running into the apartment on the right, but the officers did not hear this statement because they had already left their vehicles. Because they smelled marijuana smoke emanating from the apartment on the left, they approached the door of that apartment.

Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the officers banged on the left apartment door “as loud as [they] could” and announced, “ ‘This is the police’ ” or “ ‘Police, police, police.’ ” Id., at 22–23. Cobb said that “[a]s soon as [the officers] started banging on the door,” they “could hear people inside moving,” and “[i]t sounded as [though] things were being moved inside the apartment.” Id., at 24. These noises, Cobb testified, led the officers to believe that drug-related evidence was about to be destroyed.

*4 At that point, the officers announced that they “were going to make entry inside the apartment.” Ibid. Cobb then kicked in the door, the officers entered the apartment, and they found three people in the front room: respondent Hollis King, respondent's girlfriend, and a guest who was smoking marijuana.FN1 The officers performed a protective sweep of the apartment during which they saw marijuana and powder cocaine in plain view. In a subsequent search, they also discovered crack cocaine, cash, and drug paraphernalia.

FN1. Respondent's girlfriend leased the apartment, but respondent stayed there part of the time, and his child lived there. Based on these facts, Kentucky conceded in state court that respondent has Fourth Amendment standing to challenge the search. See App. To Pet. For Cert. 7a; see also 302 S.W.3d 649, 652 (Ky.2010).

Police eventually entered the apartment on the right. Inside, they found the suspected drug dealer who was the initial target of their investigation.


In the Fayette County Circuit Court, a grand jury charged respondent with trafficking in marijuana, first-degree trafficking in a controlled substance, and second-degree persistent felony offender status. Respondent filed a motion to suppress the evidence from the warrantless search, but the Circuit Court denied the motion. The Circuit Court concluded that the officers had probable cause to investigate the marijuana odor and that the officers “properly conducted [the investigation] by initially knocking on the door of the apartment unit and awaiting the response or consensual entry.” App. To Pet. For Cert. 9a. Exigent circumstances justified the warrantless entry, the court held, because “there was no response at all to the knocking,” and because “Officer Cobb heard movement in the apartment which he reasonably concluded were persons in the act of destroying evidence, particularly narcotics because of the smell.” Ibid. Respondent then entered a conditional guilty plea, reserving his right to appeal the denial of his suppression motion. The court sentenced respondent to 11 years' imprisonment.

The Kentucky Court of Appeals affirmed. It held that exigent circumstances justified the warrantless entry because the police reasonably believed that evidence would be destroyed. The police did not impermissibly create the exigency, the court explained, because they did not deliberately evade the warrant requirement.

The Supreme Court of Kentucky reversed. 302 S.W.3d 649 (2010). As a preliminary matter, the court observed that there was “certainly some question as to whether the sound of persons moving [inside the apartment] was sufficient to establish that evidence was being destroyed.” Id., at 655. But the court did not answer that question. Instead, it “assume[d] for the purpose of argument that exigent circumstances existed.” Ibid.

To determine whether police impermissibly created the exigency, the Supreme Court of Kentucky announced a two-part test. First, the court held, police cannot “deliberately creat[e] the exigent circumstances with the bad faith intent to avoid the warrant requirement.” Id., at 656 (internal quotation marks omitted). Second, even absent bad faith, the court concluded, police may not rely on exigent circumstances if “it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.” Ibid. (internal quotation marks omitted). Although the court found no evidence of bad faith, it held that exigent circumstances could not justify the search because it was reasonably foreseeable that the occupants would destroy evidence when the police knocked on the door and announced their presence. Ibid.

*5 We granted certiorari. 561 U.S. –––– (2010).FN2

FN2. After we granted certiorari, respondent filed a motion to dismiss the petition as improvidently granted, which we denied. 562 U.S. –––– (2010). Respondent's principal argument was that the case was moot because, after the Kentucky Supreme Court reversed his conviction, the Circuit Court dismissed the charges against him. Respondent's argument is foreclosed by United States v. Villamonte–Marquez, 462 U.S. 579, 581, n. 2, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983). As we explained in Villamonte–Marquez, our reversal of the Kentucky Supreme Court's decision “would reinstate the judgment of conviction and the sentence entered” by the Circuit Court. Ibid. The absence of an indictment does not change matters. See ibid. (“Upon respondents' conviction and sentence, the indictment that was returned against them was merged into their convictions and sentences”).



The Fourth Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The text of the Amendment thus expressly imposes two requirements. First, all searches and seizures must be reasonable. Second, a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity. See Payton v. New York, 445 U.S. 573, 584, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

Although the text of the Fourth Amendment does not specify



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