Supreme Court: Nervousness can lead to expanded search during traffic stop

If you’re stopped by the police, don’t shake. It might be used as a reason to search your car, according to the Minnesota Supreme Court.

In July 2009, two Minnesota State Troopers stopped Brandon Smith for driving 77 in a 65-mile-per-hour zone. When answering the troopers’ questions about whether he knew why he was being stopped, Smith appeared to be shaking and the troopers figured he was nervous about something. They didn’t believe his excuse that he shakes because of a medical condition.

When asked, Smith acknowledged he had a pistol in the car, and that the license to carry it had been revoked. The troopers handcuffed him and searched the car.

After his conviction, Smith appealed admission of the pistol into evidence, claiming the search was illegal because the troopers expanded the scope of the reason for pulling him over by asking him whether he had any weapons in the car.

In a decision today, Justice Paul Anderson rejected the claim. “We can do so because we conclude that Smith’s extreme shaking and his evasive response when asked about his shaking provided the officers with reasonable, articulable suspicion sufficient to support an expansion of the traffic stop,” Anderson wrote.

“We recognize that ordinary drivers may become nervous during a routine traffic stop,” he said. “But Smith’s nervousness appears to have manifested itself in a severe physical manner, distinguishing it from past cases in which we decided nervousness was an insufficient basis to establish reasonable suspicion of illegal activity.”

But dissenting from the opinion, Justice Alan Page said a driver’s nervousness doesn’t give police a reasonable suspicion of criminal activity. “It is not illegal for an out-of-state traveler, who suffers from a medical condition like Parkinson’s Disease, to pull over to the side of the highway to input an address into his or her GPS,” Page wrote.

Here’s the full decision.

  • Neil

    So you can be nervous, just don’t shake. What if you sweat? Or your eye starts twitching?

    I guess we’ll litigate those seperately.

  • Jim Shapiro

    And be PARTICULARLY careful not to appear nervous if you’re stopped for a DWB (Driving While Black).

  • John P.

    tink … tink .. tink

    That’s the sound of your civil rights being chipped away. All those years, we thought it was the commies who wanted to do that!

  • matt

    In this case and the St. Charles and Aurora cases where the rights of citizens (in this case to be nervous when a person trained to use deadly force in addition to having the power to detain, embarass and harass you) are being whittled away the best and appropriate response is to make those infringing on the rights liable for damages. If you want to search my car because I am shaking because I am nervous about a crime I have committed you win. If you search my car because I am nervous about the inequality of power in the situation or a medical condition and you find nothing I am awarded damages.

    Immunity granted to state actors only guarantees the erosion of personal rights.

  • Jeff

    There is no way to quantify how much someone is shaking. There is no way to prove after-the-fact that someone was or was not shaking enough to warrant a search. What is to stop the police from stopping someone, illegally searching their car and then telling their superior officer that they did the search because the person appeared to be nervous?

  • Elaine Loeffler

    It is a common question to ask a person stopped about weapons, in this case the driver volunteered the info and that it was revoked permit. So the officer acted on the info. No infringement of rights in my book.

    I am a retired law enforcement officer and wanted to be cautious in my actions to insure I went home safely every night. The question is reasonable.

  • Bob Collins

    // What is to stop the police from stopping someone, illegally searching their car and then telling their superior officer that they did the search because the person appeared to be nervous?

    There’s actually case law cited in this case that answers the question.

    Likewise, in Burbach, a police officer conducting a traffic stop noted that the driver-defendant was “significantly more nervous, fidgety, and talkative than a normally nervous person in a traffic stop.” Burbach, 706 N.W.. While the officer did not suspect that the defendant was under the influence of drugs, the officer “remembered [the defendant’s] name and her vehicle’s license plate from a [narcotics] tip” he had received earlier. The officer asked the defendant “if she had recently used any illegal drugs or if she had any in her car.” The officer ultimately searched the vehicle. The district court found that the defendant’s nervousness was reasonable in the context of intense police questioning.”

    We agreed with the district court’s finding, and therefore held that the defendant’s nervousness could not support a reasonable, articulable suspicion of illegal activity.

    Here, like in Burbach, the district court appears to have made a factual finding about the reasonableness of Smith’s nervousness within the context of the particular traffic stop. While in Burbach the court found that the defendant’s nervousness was “reasonable” in the context of the traffic stop, here the court appears to have reached the opposite conclusion based on Smith’s “shaking violently,” Smith’s explanation of his shaking, and other factors. In Burbach, as in this case, we must give deference to the court’s factual findings regarding the reasonableness of the defendant’s behavior in the context of a particular traffic stop. We consider those findings when making our legal conclusion of whether the defendant’s behavior provided the police with a reasonable, articulable suspicion of illegal activity.

    Finally, in Diede, a police officer conducting a traffic stop noted that the driver-defendant “seemed nervous.” Just moments before, another officer had arrested the defendant’s passenger, who was suspected of narcotics-related activity.. The arresting officer then asked the defendant if she had seen the passenger throw anything into the vehicle. The officer also asked to look inside a cigarette package the defendant was holding. The officers ultimately arrested the defendant on the basis of a plastic baggie of methamphetamine they found inside the cigarette package. We concluded that the defendant’s nervousness was “in response to questioning by multiple police officers after her passenger had been arrested and her denial that she had seen [the passenger] toss something” into the vehicle, and did not support reasonable, articulable suspicion of illegal activity.

  • Rich

    I wonder how the Court would consider a nervous bladder?

  • SomgGuy

    This entire conversation is hilarious. The police can and will search you at will and they can always come up with “probable cause” afterwards.

    He/she had bloodshopt eyes, smelled of drugs, etc.

    We all know it’s true.

    Occasionally, and I mean very-very rarely a court will over turn the search, but for that to happen it needs to reach the court; which, in our justice system based on plea bargains, is a rare event.

    I live in the city on a street that has frequent traffic stops. I often see the police: pull over a car, immediately remove everyone, make the people sit on the curb, search the vehicle, return to their vehicle while making everyone wait, and then let everyone go without so much as a ticket. I’ve watched this happen numerous time. If you don’t believe it happens try living in an area that isn’t predominantly white or maybe just ask a minority.