The U.S. Supreme Court in Florida v. Rays, held that in a traffic stop the investigative detention must be temporary and last no longer than necessary to effectuate the purpose of the stop. In Turley v. Commonwealth of Kentucky, 2011 SC 0276-M2, police stopped Turley for speeding and license plate not illuminated. Turley stepped out of the truck and passed field sobriety tests. Turley produced his driver’s license and registration. The police officer verified Turley’s driving status and said “have a good night.” Turley returned to his truck. The police ordered the passenger out of the truck. The police testified they had no individualized reasonable articulable suspicion that the passenger was engaged in or about to be engaged in criminal conduct to justify a Terry detention. Custody occurs when the police by some form of physical force or show of authority restrain the liberty of an individual. Baker v. Commonwealth of Kentucky, 5 S.W.3d. 145 (1999). The test is whether considering the surrounding circumstances, a reasonable person would have believed he was free to leave. United States v. Mendenhall, 446 U.S. 544 (1980).
The U.S. Supreme Court has identified several factors that suggest a suspect is in custody. The threatening presence of a police officer, the physical touching of the suspect, the display of a weapon and the use or tone of voice that suggests compliance with police is necessary. United States v. Salvo, 133 F.3d. 943 (1998) and Smith v. Commonwealth, 312 S.W.3d. 353 (2010). An officer cannot detain a vehicle occupant beyond the completion of the purpose of the initial stop unless something happened during the stop to cause the officer to have reasonable and articulable suspicion that criminal activity was afoot. The police cannot extend the duration of the stop based on exigent circumstances if the exigency was created by the police. Kentucky v. King, 131 S.Ct. 1841 (2011).