De Minimis Extensions and Frisbee Golf

Following the discussion about the utility of the Supreme Court stating a rule as to whether, and for how long, a car stop can be extended beyond its lawful justification, all of which arose out of the Supreme Court’s grant of cert in Rodriguez v. United States, a video appeared that makes the point less poignantly:

As explained at Addicting Info:

After getting pulled over for a minor traffic violation, an Ankeny, Iowa police officer appears to at first want to make small talk with the driver. He casually asks the man, who had at this point begun filming the encounter, whether he played Frisbee golf. The man replied “I do a lot actually. I play out at Heritage park.” The conversation then takes a bizarre turn as the cop awkwardly asks the man about his drug use based on that hobby.

The video begins with the officer handing the driver a written warning because his headlights weren’t on.  As of that moment, the lawful justification for the seizure was complete.  The question posed by Rodriguez, and addressed all around, is what happens next.  Rather than say “you’re not free to leave,” or “have a nice day,” the officer asks a question:

“Do you play Frisbee golf?”

Would a reviewing court view this as idle chitchat, of the sort that one curious guy asks another.  Is it of no consequence?  Is it a de minimis extension of the stop, taking two seconds max?

The five word question, standing alone, might seem inoffensive, though it leads into a dark hole of absurdity when followed up with the cop saying:

“Okay, I need you to answer me a question. Why is it that everybody that plays Frisbee golf smokes weed?”

No need to point out the ridiculousness of this leap. Not even Gary Mikulec, the Ankeny Police Chief, was willing to try to justify it.

The officer engages the driver in a line of questioning that is foolish and not representative of the Ankeny Police Dept.’s training or interactions with the public. This verbal exchange did not meet the level of professionalism expected of Ankeny police officers. Ankeny Police Chief Gary Mikulec respectfully apologizes for the officer`s demeaning statement.

Rather, what this video reflects that isn’t completely asinine is the seamless transition from lawful stop for driving without lights to something else, something beyond the authority of the cop.  But all he did was ask a question.

The discussion that followed my post about Rodriguez between Judge Kopf and Orin Kerr was really a discussion of whether that moment in time, that specific instant, was of constitutional dimension.  Orin (and I) argued that it was, and that it had to be, from a doctrinal perspective.  If the authority of a police officer to seize a person, to interfere with the right to be left alone, was based on the regulation of car lights, then the issuance of a warning (or, had the officer chosen to issue a ticket, then the ticket) brought the authority to an end.

Once the authority ends, it’s over. Not a word, a breath, a question, an observation, anything, has lawful justification.  There can be no further inquiry into the “why” of the working of the officer’s mind.  In this case, it would appear to relate to the cop’s observation of a Frisbee in the car. Because Frisbees are the weapon of choice of weed smokers, you see. No? Whatever.

If we suspend anything remotely resembling intelligence for a moment, this video provides an opportunity to see how the dominos can fall.  Following the cop’s handing over the written warning, he asks a brief and facially inoffensive question, “Do you play Frisbee golf?”  Would this innocuous question, extending the stop by a couple of seconds, offend a judge’s sensibilities?  Not likely.

What if the officer claims that he observed the Frisbee in the car earlier, but feared raising it until he tendered the warning.  After all, by giving the warning, he allayed the driver’s fears of getting a ticket, reduced the potential for hostility and put the driver at ease.  Add to that the claim that the driver was nervous when stopped. Whether true or not, most people are nervous. Getting a ticket isn’t one of life’s more pleasant activities, it’s never clear what will come of it.

After asking the facially innocuous question, which the officer can explain as a prelude to his true point, that in his experience as a police officer, many (let’s put the hyperbole that all Frisbee golfers are weed smokers) people who play Frisbee golf smoke pot.  His experience is sufficient to explain why he asks the question. After all, who can dispute what his experience is?  And then, boom, he comes out with the loaded question:

“Okay, I need you to answer me a question. Why is it that everybody that plays Frisbee golf smokes weed?”

First, the officer says “I need you,” as in a command.  This goes a step beyond idle chitchat and into the realm of the officer demanding a response. The balance of the query is brought to bear, like “when did you stop beating your wife?”  There are a few good answers to the question, some dealing with its substance (“That’s weird, as I don’t smoke weed and am unaware of any Frisbee golf players who do. We clearly don’t hang around with the same sort of people, officer.”), others dealing with the propriety of asking the question itself (“I do not wish to answer questions. Am I free to go?”).  The latter, an exercise of rights to which the driver is entitled, would potentially lead the officer to then explain:

I’ve asked this question of every driver who says he plays Frisbee golf, and no driver has ever refused to answer before.  This gave rise to a belief that this driver in particular was concealing drugs in his car.

Would that have served as a sufficient, fact-specific, explanation to justify the officer’s “brief” extension of the stop to attempt to “persuade” the driver to consent to a search, to call in back-up with a drug dog for a sniff, to order the driver out of the car, pat him down and cuff him for officer safety?

If the foregoing doesn’t serve to demonstrate the problem with de minimis extension and fact-specific rationalizations for post-authority seizures, consider what might happen if the driver replied, “not interested in chatting with you, officer. Gotta go,” and then drove off.  In hot pursuit, because in the officer’s experience no one exercises their constitutional right to leave, would he have been justified in killing the driver to prevent potential harm from flight?

While my concern is that it’s far too easy to manufacture a scenario to thwart the bright line of when lawful authorization ends, there is no question that it does, and must, end at the moment the warning is handed over.  What happens afterward is the cop playing seven minutes in heaven at the citizen’s expense.  There can be no justification for allowing the officer to play such games.

19 thoughts on “De Minimis Extensions and Frisbee Golf

  1. lawrence kaplan

    Another of the many problems with the officer’s interrogation is that when the driver answered the officer’s question as to whether he had ever smoked pot by saying “I will not answer that yes or no,” the officer repeatedly stated “I take that as a yes.” The officer stopped the questioning only when the driver said to him “I did not answer the question because I do not trust the police.” I wonder why?

    1. SHG Post author

      The point here was to focus on the instant where the lawful basis for the stop ended and the extended basis began. The silliness that followed is replete with issues, but they aren’t the subject of this post. I would have thought this was abundantly clear.

          1. Richard G. Kopf


            I kinda like the idea of being compared to good old Franz. I always thought that his novel The Trial set out a blue print for how I ought to approach criminal trials. But, I digress.

            I am too lazy to study your Iowa case. But, as noted earlier, “Iowa” probably says all you need to know. Let me turn then more generally to my thesis that Professor Kerr and you found wanting.

            My argument is this: The Fourth Amendment prohibits unreasonable seizures. It does not place a time limit on them. There is, in my opinion, some slack in the joints when determining what is unreasonable even after the reason for the initial stop has been satisfied. After all the, Court has told us that it is perfectly OK under the Fourth Amendment to seize and then put a soccer Mom in the slammer all because she failed to restrain her grimy little monsters with seat belts thus violating a traffic law that carried with it only a fine. Atwater v. City of Lago Vista, 532 US 318 (2001) (Responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into occasion for constitutional review). If Atwater is good Fourth Amendment law, why are cops, who take a little bit of extra time to follow a hunch at the conclusion of a legit traffic stop, acting unreasonably when they would be perfectly justified in arresting the driver?

            All the best.


            1. SHG Post author

              Bad law begets worse. Atwater was a travesty of “not my job” jurisprudence, but the Supremes so held. If they arrested the driver, as they perhaps could rather than tender a warning, then they would be entitled to all that comes with it, inventory search included. True enough. But by that argument, they should be allowed an inventory search in every instance, since they could always have arrested rather than given a ticket, and then they would get to search regardless of cause or consent. Or do people still have constitutional rights that, regardless of Atwater, are worthy of and entitled to protection from arbitrary extensions?

              Atwater is valid Fourth Amendment law. It is not, however, good law. Does Atwater mean that all bets are off? Is this the slippery slope of rationalization that removes all Fourth Amendment limits? Does that mean that the police can exceed whatever doctrinal authorization they have to begin with until they reach the point that a judge, each judge of course having a distinct and individual sensibility of how far beyond the line is reasonable, finds excessive?

              Just because one bad thing is permitted doesn’t mean the entirety of the Constitution falls into the toilet of “whatever.” Or does it? Are there no actual constitutional rules anymore for cops, except not to go so far as to surpass the judge’s personal tolerance?

              And then, there’s Gant v. Arizona to offset your Atwater. It’s new and improved.

            2. John_Barleycorn

              What interstates run through Nebraska again?

              I will give you the benefit of the doubt and go with you deploying some smartass-sarcastic-realism here Judge.

              I actually enjoy smartass comments here in the back pages of SJ more than most might even suspect. However, If you weren’t working on polishing your smartass-ness while floating some realism with sledgehammer like depressingly sarcastic overtones to ponder, please have a personal nightmare or two tonight about the fourth amendment and you, on me.

              The right Johnny Law Man could have a field day with you Judge. Especially if you were to get slightly irritated with your retorts and happened to become obviously agitated when that little light went off in your head letting you know constitutional rights are for suckers and badges aren’t awarded.

              P.S. I couldn’t agree more via not editing ones comment before submitting them David, but “Kopfa-esque” is sure to bring the esteemed one’s back pages more grammatically and spelling challenged folks like ourselves. This will seriously interfere with my and other commenters ability to tell judges, especially federal ones, to eat sand in the appropriate Kafkaesque style when it is required. Just saying. Not saying it is needed here, but just saying nonetheless.

  2. Ted H.

    ” If the authority of a police officer to seize a person, to interfere with the right to be left alone, was based on the regulation of car lights, then the issuance of a warning (or, had the officer chosen to issue a ticket, then the ticket) brought the authority to an end.

    Once the authority ends, it’s over. Not a word, a breath, a question, an observation, anything, has lawful justification.”

    I think the last sentence over states your point, and would be incorrect doctrinally as well. There are plenty of lawful justifications for extending the stop past simply handing over the ticket: some event, act, or observation from which probable cause would arise that the driver/seized person has committed or is about to commit a crime e.g. instead of a frisbee he sees a gun and a backpack with some small baggies in the backseat. Here, the officer is clearly grasping at straws, and even his chief has publicly censured him. The problem here to me is: just how far are officers allowed to intrude upon our legitimate/reasonable expectation of privacy in their search for probable cause? Reasonable to whom? The great objective American, many of whom happily, or unwittingly, disclose so much private information to the public anyway? De minimis should probably be done away with anyway: I mostly recall it from cases dealing with racism and voting: how much gerrymandering is too much?

    1. SHG Post author

      I try so hard to write clearly so that readers aren’t confused, but to no avail sometimes.

      Once the authority ends, it’s over.

      If, in the course of the stop, something that gives rise to new or different authority occurs, then it is that new authority upon which the officer’s conduct depends. If they see a gun or drugs in plain view, then their authority stems from that plain view observation, not from the traffic stop.

      The problem here to me is: just how far are officers allowed to intrude upon our legitimate/reasonable expectation of privacy in their search for probable cause?

      Are you suggesting they get ten free minutes to come up with something else? A half hour? As long as it takes for a dog to appear? This may be the problem for you, but it surely isn’t the problem for me. They don’t get to go fishing once their authority ends, just to see if they can come up with something more.

      It’s important not to muddle the gap between the justification for the stop, the completion of that justification, and the fishing expedition for new justification. If they hit the gap, then it’s done.

  3. Ted H.

    So to be clearer, I suppose you might have answered “for what?” to the statement that “Not a word, a breath, a question, an observation, anything, has lawful justification.” Or perhaps you meant during the “when” of the “gap” where authority for the seizure of the person has ended? Answering “for what?” might create a tautology. The “when” explanation would still be incorrect, because it would certainly be reasonable, and de minimis would not be involved, if the observes what I described above, even without a word being said after handing over the ticket. This instance is fairly cut and dry unreasonable: an officer’s ham-handed attempt to pull reasonable suspicion for drugs from the magic hat of plain view (of frisbees), and his use of seemingly innocuous de minimis chit chat for the ulterior purpose of creating some kind of reasonable suspicion for a search. I get that the sort of tactic at issue in the SCOTUS case (stalling the creation of the “gap”) truly does erode 4th amendment rights. However, it appears that your bright line would force blinders upon the police officer once the “gap” begins, which seems illogical, and doesn’t resolve the issue where the police stall to keep the seizure under way so there is no “gap” until they’ve gotten their way.

    1. SHG Post author

      First, please use the reply button rather than start a new thread. Second, you’re just not getting this:

      However, it appears that your bright line would force blinders upon the police officer once the “gap” begins, which seems illogical…

      There should be no “gap.” There is no authority to perpetuate a seizure beyond its constitutional limit. That you ponder what police should be allowed to do after they’ve exhausted their authority but continue to seize a person in violation of their constitutional rights may be your “problem,” but surely isn’t mine. You may be okay with the cops violating constitutional rights, but I’m not.

      1. Ted H.

        Sorry about the new thread. Maybe we’re talking past each other again. I’ll try one more time to get my point across, but this discussion seems to be escalating to a bad place, and since this is your place I’ll not waste our time or patience on this any longer. And I’m certainly not OK with anyone violating anyone’s constitutional rights.

        I believe that it may be legal for an officer to seize a second time, should that seizure be based upon some 4a doctrine, after their authority for the initial seizure has ended, as in here with the handing over of the ticket which ends the initial seizure. It’s not that I’m pondering this, either. Police do have constitutional authority to seize someone if they observe some, to use your words: “word, a breath, a question, an observation, anything” that might give rise to a reasonable belief of suspicion of a crime, even if this observation occurs after the initial seizure has ended, and the driver/person is free to go. Therefore, there is no perpetuation of a seizure, because it would simply be a second seizure. I don’t think I’m off base in my understanding of the law here; if I am let me know. And finally, the bright line does nothing to resolve this issue, because people aren’t allowed to break the law after they’ve been stopped, they’re not allowed to be breaking the law while they’re stopped (even if they’re in violation of a different law for which they’ve been seized), and police may continue to observe people after their authority for a seizure has ended in which they might observe some such thing that would give rise for new authority for a new seizure. Furthermore, the bright line not resolve the case of an officer unconstitutionally prolonging a seizure to go fishing, because you state that the bright line should be that the seizure ends when the ticket is handed over. If the officer never hands over the ticket, then where is the bright line for when the authority for the seizure has been unconstitutionally prolonged?

        1. SHG Post author

          Your point wasn’t unclear the last two times. I just don’t see any merit in it at all, and your view that:

          police may continue to observe people after their authority for a seizure has ended in which they might observe some such thing that would give rise for new authority for a new seizure

          is fundamentally misguided.

  4. Ted H.

    I’m probably going to need a tummy rub from my girlfriend tonight after this one, but here goes (plus I’m having trouble focusing on my Internal Revenue Manual research):

    At least Judge Kopf sees merit in what I’m saying, so I have that going for me. That is, a bright line rule would be necessarily be arbitrary in forestalling unconstitutional delay tactics e.g. where you and he were joking about naming a number of minutes in a previous post. Further, your bright line rule that the act of handing over the ticket forestalls any possible secondary basis for a seizure actually seems misguided. I don’t how I’m misguided in thinking that a police officer may constitutionally observe whatever might be in plain view of his surroundings absent a seizure and act within his powers upon those observations. Constitutional seizures occur due to police observation.

    Arguendo, in the video the police officer simply says “nice frisbees and have a safe drive home,” hands him the ticket, so the seizure has ended both doctrinally and pragmatically, and the driver is free to go. The officer gets in his car and prepares to leave. The driver leaves his windows down and lights up a joint to relax from the stress of dealing with the police stop. The officer’s windows are also down, and as he drives away he smells the pot, stops the car, and initiates a second seizure. I don’t see anything wrong with this. This is the situation that I’m trying to get at. I know we could both come up with other scenarios where second seizure would be constitutional, yet a bit less cut and dry that my hypothetical.

    1. SHG Post author

      You’re giving me a headache. Yes, I bet Judge Kopf sees merit in your position. Still, go for the tummy rub from your girlfriend. Trust me on this.

    2. Jeff

      Isn’t the issue whether there is any objective limit at all on police discretion? Whatever a judge can be persuaded to rule in-bounds is not an objective limit. An officer’s hunch (e.g. regarding plain-sight plastic baggies) is not an objective limit. Or are police, as in this video, allowed to try anything/everything, because gun, and then try to justify it (lie) later in court.

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