Extension of Traffic Stops Requires a Reasonable Articulation of Suspicion in the Eastern District of Virginia

stopped by police
The reasonableness of the extension of a traffic stop to search the vehicle or its occupants must be considered when defending criminal charges arising from the traffic stop.  The judges of the Eastern District have long required law enforcement to articulate a reasonable suspicion of wrongdoing before their extension of traffic stops can pass legal muster. In the Eastern District of Virginia, the issue has been raised numerous times.  In United States v. Singleton, No. 1:11-cr-577 (EDVa. Feb. 10, 2012) (Judge Ellis), the defendant argued that his routine traffic stop was unlawfully extended beyond its constitutionally permissible purpose.  The Court held that Singleton’s odd behavior justified the nineteen minutes which elapsed between the traffic stop and the arrival of the drug-sniffing dog. Similarly, in another case originating in the Eastern District of Virginia, United States v. Vaughan, 700 F.3d 705 (4th Cir. 2012), the court determined that the police officer had the necessary reasonable suspicion to extend a traffic stop in order to bring in a dog based on the totality of the circumstances:  the officer saw four cellphones in the car but only two occupants the passenger became extremely nervous, and the driver’s story conflicted with the passenger’s story.  The court held that the 30 minute delay between the traffic stop and the dog’s arrival was reasonable. Further, in yet another Eastern District of Virginia case, United States v. Givens, No. 4:12-cr-98 (ED Va. Feb. 12, 2013) (Judge Smith), a routine traffic stop was extended when the driver provided curt answers, avoided eye contact, and exhibited nervousness, heavy breathing, shaking hands and a pulsating carotid artery.  Sixteen minutes elapsed before the arrival of the dog and subsequent discovery of drugs. Sometimes, however, the police are not permitted to drag out ordinary traffic stops until they have probable cause to search the driver’s vehicle.  In United States v. Santiago, 869 F. Supp.2d 707 (E.D. of Va., 2012), the officer significantly lengthened the scope of his initial investigation without reasonable suspicion thereby violating the defendant’s Fourth Amendment rights.  The defendant’s motion to suppress the evidence was granted. The requirement of the police needing to articulate a reasonable suspicion of wrongdoing before extending routine traffic stops most often arises in situations where drugs are eventually found in the vehicle. It is, of course, not limited to drug cases and has been argued in DUI cases as well.  In DUI cases, counsel’s initial concern should be whether the traffic stop itself was based on a reasonable suspicion of wrongdoing (such as whether the vehicle, its occupants or its contents subject to seizure for violation of law).  Following that analysis, counsel should next address the reasonableness of the extension of the stop. US v. Vaughan (PDF) US v. Santiago (PDF) US v Singleton 2-10-2012 Memorandum Opinion (PDF) US v Givens 2-12-13 Memorandum Opinion (PDF)
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Fourth Circuit: Appellate Challenge to Summary Chart Requires Careful Attention to Avoid Waiver

A recent decision by the U.S. Court of Appeals for the Fourth Circuit illustrates the need for careful planning at the briefing stage to review the admission of a summary chart at trial.  In U.S. v. Katsipis, 598 Fed. Appx. 162 (4th Cir. 2015), an appeal from the U.S. District Court for the Eastern District of Virginia (Norfolk Division), a criminal defendant challenged his conviction under 33 U.S.C. § 1908(a) (2012), which requires ocean-going vessels to maintain an accurate “Oil Record Book.”  The Oil Record Book is a log of any discharge of oil contaminants into the sea, which is required under MARPOL, an international treaty governing ocean-going vessels.

During a U.S. Coast Guard inspection of the M/V Antonis G. Pappadakis, a bulk cargo carrier, multiple crew members accused Chief Engineer Lambros Katsipis of rigging a bypass system that flushed contaminated bilge water out to sea without sending the water through the ship’s oily water separator as required.  The crew members alleged that Katsipis encouraged them to lie about this bypass system to any law enforcement personnel who asked about it, and the Oil Record Book failed to reflect the bypass system.  Katsipis was subsequently indicted and tried by a jury in the Norfolk Division of the U.S. District Court for the Eastern District of Virginia.

At trial, the Government offered into evidence, under Fed. R. Evid. 1006, a summary chart prepared by a witness who investigated the ship.  The summary chart totaled the number of times that the defendant’s predecessor ran the oily water separator and then compared that number against the substantially-lower number of times that the defendant ran the separator over the same period of time.  The summary chart drew upon records in the ship’s Oil Record Book. The jury convicted Katsipis, and he was sentenced to one year of probation.

On appeal, Katsipis argued that the summary chart was improperly admitted into evidence.  Katsipis pointed to the witness’s testimony about the chart, specifically that the witness acknowledged during cross-examination that “the chart was of limited usefulness, as it accounted for no potentially confounding variables over the aggregate twenty-three month period.”

In a pointed comment in the opinion, the Fourth Circuit interpreted Katsipis’s argument as a challenge to admission under Fed. R. Evid. 403 and not under Fed. R. Evid. 1006.  The Fourth Circuit noted, “[w]hile Fed. R. Evid. 1006 typically governs the admission of summary charts, Katsipis only claims that the chart presented a danger of prejudice that outweighed its probative value, not that it failed to meet the standard for admission under Rule 1006.  Accordingly, we review Katsipis’s claim under Rule 403.”

As most federal trial lawyers know, Fed. R. Evid. 403 provides a low bar to the admission of relevant evidence.  If the danger of unfair prejudice substantially outweighs the probative value of the evidence, the court may exclude the evidence.  In real practice, Rule 403 does not often succeed in excluding evidence.  Instead, the Rule is only seriously considered in extreme cases, an illustrative example being repetitive graphic photos of murder victims at a crime scene.  It is no real surprise that the Fourth Circuit rejected Katsipis’s Rule 403 argument.

Further, the Court never considered whether the summary chart was proper under Rule 1006 because Katsipis was deemed to have waived the argument.  The Fourth Circuit’s opinion is unclear whether the waiver resulted from Katsipis’s failure to object under Rule 1006 during trial or whether the appellate briefs submitted to the Fourth Circuit omitted the argument.  Either way, this case offers an example of how an appellate consultant could assist a lawyer at trial, especially in criminal cases.  An appellate lawyer with a different eye can assist trial counsel to identify and preserve issues for appeal, while the trial lawyer focuses on the many preparations needed for a jury case.

Finally, this case reminds trial practitioners of the value of Fed. R. Evid. 1006 and the charts that may be presented to a jury to summarize voluminous (and dry) information or records.  We are all aware that people tend to be visual learners, especially so in our modern era dominated by smart phones and tablets.  Trial counsel should use this important tool of advocacy, which is chiefly limited only by the attorney’s creativity.