*1 500 resentencing on for remanded therefore be Specifi- 1051. at 214 F.3d case. See
this 2. that Count concluded Court Kakatin cally, the intend- reasonably have could “Congress §to 841 apply safety valve that CONCLUSION
ed” precise- offenses § 860 not to but offenses reasons, we AFFIRM foregoing For of- a fesser-included § is ly “[b]ecause Phillips’ denying court’s order the district § conviction ‘a 860 fense; consequently, ille- allegedly evidence suppress motion deserv- offense’ more serious or greater shed, Thompson from the gally obtained pun- more commensurately serious ing of a conviction, but RE- Phillips AFFIRM 1051; United at 214 F.3d ishment.” cf. sentencing de- the district court’s VERSE Chandler, 125 F.3d States sentence, termination, Phillips’ VACATE intended Cir.1997) Congress that (holding accor- resentencing in for and REMAND substan- separate § § that opinion. this dance with offenses). further Circuit The Ninth tive in part, in REVERSED AFFIRMED lenity had the doctrine concluded and REMAND- part, part, VACATED it clear “is given application no ED. substantive separate § are § “ 'ambiguity is no offenses,” that there 3553(f).” Ka- §of concerning the ambit persuad- We are
katin, at 1051. 214 F.3d courts of these reasoning by the
ed are § 860 offenses conclude
likewise pur- safety valve treatment for
not eligible 3553(f). §
suant to America, STATES UNITED plain language sum, find In we Plaintiff-Appellee, sentencing statutory and of the relevant of this jurisprudence provisions con- compels circuits and other Court BRIGHAM, Reginald Defendant- provide does not § 5K2.0 clusion Appellant. statutory mini- from departure
basis No. 02-40719. in the ab- Accordingly, mum sentence. forth set exceptions one of the sence of Appeals, States Court United 3553(e) 3553(f), ex- “or such other § § or Fifth Circuit. create,” the dis- may Congress ceptions Aug. downwardly depart
trict court or other imprisonment from terma minimum mandated below the
penalty the defen- to which pursuant
the statute neither Because convicted.
dant was applied on exceptions recognized
the two case, we con- in this presented
the facts authori- court lacked the district
clude that than less impose a
ty to sentence See, e.g., minimum.
statutory mandatory (citing Haynes, at 750 313 F.3d
Medley, 799-800). must This matter *3 Bales,
John Malcolm Atty., Asst. U.S. Lufkin, TX, Lynne Kenner, Traci Asst. Atty. TX, U.S. (argued), Tyler, for Plain- *4 tiff-Appellee. Wesley
John (argued), Tunnell Tunnell Cox, Lufkin, TX, & Defendant-Appel- lant. KING, Judge, JOLLY,
Before Chief HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, EMILIO M. BENAVIDES, STEWART, DENNIS, CLEMENT, PICKERING, PRADO and Judges. Circuit JONES, EDITH H. Judge: Circuit During stop Nacogdoches, a traffic near Texas, routine questioning of the occu- pants and a consensual search uncovered kilograms over five of a controlled sub- stance, liquid syrup. codeine The district court appellant’s sup- denied the motion to press. granted We en banc review of a panel divided decision that reversed the district court and stop held that the traffic unconstitutionally was extended and that the consensual search improper. Clarifying prior precedents regarding the proper application of the Fourth Amend- cases, ment in traffic we hold state trooper’s investigatory procedures in eminently this case were reasonable under totality of the circumstances. The con- viction is AFFIRMED. Harris, Dorothy identified tions. BACKGROUND
I. car, Both- as mother. renter of the his Stop1 The A. Traffic answers, by Brigham’s demeanor ered Reginald Brigham May On story verify Brigham’s decided to Conklin High- on U.S. driving friends were three the car. occupants other with the Nacogdoches, Tex- around way 59 passing passen- 4:17 Conklin asked p.m., At Trooper Shannon p.m., At 4:13 State as. indicated was visit- Brigham had ger who Buick silver 2000 their spotted step out of in Houston to ing relatives closely another too behind following sedan ap- produced what passenger vehicle. traffic laws. of Texas in violation vehicle I.D. card with peared to be Tennessee Buick; a videocamera stopped the D. Brooks.” Conklin “Sircrease the name car patrol microphone mounted I.D. was ficti- that the would discover soon entire traffic recorded the name was passenger’s tious and Brigham, approached Conklin first ques- Franklin. Conklin actually Brandon out of the driver, step him to and asked travel group’s Franklin about the tioned license and insur- provide vehicle and group explained that plans. Franklin pro- Brigham complied papers. ance *5 they had from Houston where coming was and a license an Arkansas driver’s duced Fri- concert on Isley attended Brothers in from an Avis branch agreement rental Franklin then asked day Conklin night. Tennessee, Har- listing Dorothy Memphis, including trip, specifics the about in ris, who lived 50-year-old female in Hous- group time the had arrived what Arkansas, as the lessee. Memphis, West visited, and where ton, they had whom to be occupants appeared none of Since stayed. appeared Franklin somewhat they female, no 50-year and additional old group time the about the exact confused on the rental drivers were authorized Houston, answering in first had arrived suspicious. became agreement, Conklin saying then he wasn’t Friday evening but stop, into the two minutes p.m., At 4:15 FranHin also they arrived. sure when a series of asking Brigham began Conklin that Quinta and added a La Inn mentioned travel group’s about the questions basic girls” in Houston. “couple he knew they were replied that plans. Brigham did not state either Notably, Franklin Texas, Houston, one of coming from in Houston area any relatives he had family visiting had been passengers family. Like visiting his or he was members, group rest of the and eye contact Franklin avoided Brigham, asked was on vacation. Conklin extremely ner- appeared and with Conklin Brigham replied stayed and group had vous. Inn, Quinta in a La they stayed had asked the two p.m., At 4:20 difficulty explaining where but he had identification remaining passengers mak- Brigham motel was located. avoided which attempted and determine Conklin, ing eye appeared with contact accurate. had been was stories he told nervous, responding extremely Coleman, female, indicated Keisha of his questions questions with to Conklin’s identification, any not have years of that she did and one-half own. Conklin’s five an Arkansas produced other male Department the Texas experience with Perry. Quincy him as identifying card Brig- Safety him to believe that Public led appeared confused Perry Coleman ques- to his fabricating ham was answers prevailing party. able to the Government as light favor- 1. The recited in the most facts are concerning group’s were inconsistent then returned to patrol his car to check plans, Perry initially travel stated that Franklin’s actual identity. in
they Friday arrived Houston on morn- At approximately p.m., 4:34 while ing, while Coleman suggested Saturday. Franklin’s I.D. check was still pending, p.m., eight At 4:21 now Conklin waved Nacogdoches minutes into the over a unit stop, provide Conklin returned to backup his car and initi- and briefed the ated officers on checks on the Buick and the the situation and his intent to three seek identification cards he had consent to received. search the vehicle. Conk- lin videotape provided He noted for the that all then three with a written appeared “extremely warning males for following closely nervous.” too and re- Nevertheless, Brigham’s license, Conklin had turned Brig- informed driver’s while “clean,” if explaining ham that his license was one of his responsibilities way. would soon be on their as a state p.m., trooper At 4:23 was to intercept illegal registration guns, check on the Buick re- contraband such as property, stolen vealed that plates matched the narcotics. any vehicle denied that illegal and there was report. no stolen vehicle At items were car and acceded suppression hearing, request Conklin’s for a testified search. Conklin that he first suspicious remained removed all of passengers because from experience, fact the car yet patted that a car is not them down. While reported Buick, as stolen does not Conklin was necessarily searching the the dis- patcher responded indicate that the car was not with actually sto- additional informa- len. As he awaited tion regarding identity. the results of the I.D. Franklin’s ap-At *6 checks, proximately p.m., Conklin continued to 4:42 make verbal Conklin discovered trunk, cooler, notes about the the occupants, Buick’s stress- inside a a Minute ing juice that Brigham and Franklin Maid holding avoided container ap- what eye him, peared contact with liquid all three men to be ap- codeine. Conklin then peared nervous, extremely arrested all occupants their four hands the Buick. were shaking, occupants’ Lab tests later stories confirmed that the sub- liquid about their arrival time in stance was syrup. Houston and the codeine purpose of their visit were in In conflict. B. Proceedings Court addition, Conklin observed that none of the subjects old, years was 25 consequently, January 11, 2001, Franklin, Brigham, On appeared none of them to have the author- Perry and by were indicted a federal ity legally possess to the rental car. grand jury for possessing more than four kilograms of codeine with intent to distrib- p.m., At 4:29 the results of the I.D. 841(a)(1). § ute in 21 violation of U.S.C. suggested checks I.D. Franklin’s was Brigham unsuccessfully moved suppress likely fictitious. After confirming the I.D. the evidence discovered during Trooper provided number that he had to the dis- grounds Conklin’s search on the patcher, Conklin examined Franklin’s I.D. stop and search exceeded the bounds of closely more and concluded it was a for- the Brigham Fourth Amendment. then gery. At approximately p.m., 4:31 Conklin plea agreement, subject reached a to his questioned Brigham and learned Frank- right appeal the denial of the motion to Franklin, identity. however, lin’s true suppress. continued to insist to Conklin that he was Brooks,” “Sircrease until appeal, Conklin confront- panel majority On held that ed him about the I.D. Trooper false card. Conklin unconstitutionally Conklin extend-
506
occupants
the other
Brigham nor
Brigham
stop
the traffic
ed
drivers,
its authorized
car were
rental
check
began
he
before
their
interrogated them about
registration.
car’s
rental
1.D.’s and
computer-
F.3d
instituted
343
and then
Brigham,
plans
v.
travel
States
See United
Cir.2003),
(5th
vacated and
I.D. checks.3
ized vehicle
490, 497-505
1297
by, 350 F.3d
granted
banc
reh’g en
de
of a vehicle
stopping
The
Cir.2003).
majority also
(5th
The panel
a “sei
constitutes
occupants
of its
tention
consent
search
Brigham’s
held
This
Amendment.
the Fourth
under
zure”
it was
“involuntary” because
was
vehicle
Court, has
court, following
Supreme
viola-
Amendment
the Fourth
tainted
justi
whether
stops,
traffic
routine
was
treated
conviction
at 505-07.
tion.
Id.
a reasonable
cause or
banc,
by probable
find fied
we
rehearing en
reversed. On
violation,
Terry stops.4
affirm
violation
no Fourth
420,
McCarty, 468 U.S.
v.
Berkemer
See
conviction.
3138, 3150,
317
82 L.Ed.2d
439, 104 S.Ct.
II. DISCUSSION
Mimms, 434 U.S.
(1984);
v.
Pennsylvania
330, 332,
331
109,
54 L.Ed.2d
106,
98 S.Ct.
challenge
not here
Brigham does
(1977)
curiam);
States
e.g., United
see
(per
stop
traffic
for follow-
initial
validity of the
Cir.1999).
193,
Ohio,
Dortch,
F.3d
closely.2
Terry
See
ing too
1868,
L.Ed.2d 889
88,
S.Ct.
U.S.
Terry,
legality
Pursuant
545.062(a)
§
(1968);
see
TRANS. Code
Tex.
in two
tested
stops is
investigatory
(“An
shall,
1999)
if fol-
(Vernon
operator
examine whether
first
parts. Courts
vehicle,
as-
maintain an
lowing another
incep
justified
its
action
officer’s
vehi-
the two
between
clear distance
sured
officer’s
tion,
inquire whether
and then
cles”). Rather,
argues
reasonably relat
actions were
subsequent
scope
exceeded
justi
to the circumstances
scope
ed in
occupants’
prolonged
valid
at 19-
392 U.S.
Terry,
See
fied
excessively
unconstitutional-
detention
suggests,
at 1879.
when,
determining
neither
after
ly
*7
Offi
that
does not contend
Government
ruling
a mo-
4.The
a district court’s
on
2. To assess
stop
a
stop
Fourth
under the
Conklin’s
suppress evidence
cer
to
tion
therefore,
Amendment,
cause,
we
determina-
probable
we review its factual
on
based
However,
ultimate Fourth
the
Terry analysis.
for clear error and
tions
standard
apply the
United
de novo.
conclusions
Amendment
our
one of
important to note that
least
it is
755,
(5th
Gonzalez,
F.3d
328
758
States v.
recently suggested that dif
circuits has
sister
States,
Cir.2003)
517
(citing
v. United
Ornelas
may apply to
standards
constitutional
ferent
1657, 1663,
690, 699,
134
S.Ct.
116
U.S.
See United
probable cause.
stops
based
omitted)).
(1996) (other citations
L.Ed.2d 911
947,
(7th
Childs, 277 F.3d
952-54
v.
States
light most
in the
is considered
The evidence
banc)
Cir.2002) (en
(noting
Fourth
(citing
party.
prevailing
Id.
the
favorable to
range of law
for a broader
allows
Amendment
578,
Orozco,
581
F.3d
v.
191
United States
stop
is
traffic
actions
enforcement
Cir.1999)).
(5th
cause);
also Ber
by probable
see
supported
29,
420,
n.
McCarty,
U.S.
439
468
v.
kemer
Brig-
dispute
does not
Government
3. The
29,
3138,
317
82 L.Ed.2d
n.
S.Ct.
3150
driver,
104
to
standing, vehicle’s
ham's
suggest
(1984) ("We
that
do not
of course
constitutionality of the search.
attack the
Shabazz,
by probable cause
supported
Compare
v.
traffic
United States
Cir.1993),
431,
by
Fourth
citing
v.
set
n. 1
Rakas
exceed
bounds
at 434
128,
421,
Illinois,
Terry stop.”).
58
scope
U.S.
99 S.Ct.
of a
439
on the
Amendment
(1978).
387
L.Ed.2d
507
506,
panel majority agreed,
1319, 1329,
103
S.Ct.
a law enforcement
that such
regis-
stop and
vehicle
traffic
of a valid
license
end
a driver’s
amine
traffic
during a
implicate
not
papers
do
or rental
encounters
tration
consensual
both.
check on
run a
stop and
United
concerns.
Amendment
Fourth
(citing
Dortch,
at 198
See,
199 F.3d
e.g.,
431,
Sanchez-Pena,
F.3d
336
v.
States
437).
may
An officer
Shabazz,
F.2d at
993
Cir.2003).
(5th
442-43
itinerary of
purpose
also ask about
See,
stop.
traffic
during the
trip
a driver’s
authorities, Troop
these
Based on
Gonzalez,
F.3d
328
States
e.g., United
Brigham and
of
questioning
er Conklin’s
Cir.2003).
(5th
questions
Such
755, 758-59
scope
fully within the
companions was
a traffic
whether
efficiently determine
may
by the traffic
justified
of the detention
so,
if
wheth-
place,
has taken
violation
ascertained
after Conklin
particularly
stop,
be issued
warning should
or
a citation
er
or
(1)
owner
was not the
are
inquiries
these
All
made.6
or an arrest
(2)
not
vehicle,
the lessee
of
lessee
investigation attendant
scope of
within
(3)
Buick,
Brigham’s
in the
present
to the traffic
itinerary
their
of
Franklin’s versions
we
important,
But even more
consistently ap
has
This court
conflicted.
officer’s
police
that a
any notion
“reject
a driv
police
a
officer’s
proved
subject unrelated
even on a
questioning,
was not
the driver
plans
er’s travel
stop, is
a routine
purpose
traffic
otherwise
lessee or
authorized vehicle
violation.”
Amendment
a
itself
Fourth
Fur
authority.7
driving
to lack
appeared
add
Shabazz,
(emphasis
F.2d at 436
noted, the
ther,
Eighth Circuit has
as the
is the
ed). “[Detention,
questioning,
police of
permits “[a]
Amendment
Fourth
is
prong
Terry’s second
which
evil at
questioning of
similar
undertake
[to]
ficer
is
The Fourth
aimed.” Id.
verify the infor
occupants to
the vehicle’s
scope of
ensuring that
with
concerned
Linkous,
by the driver.”
provided
mation
under
detention is reasonable
given
increasing sus
at 719. Conklin’s
285 F.3d
See
circumstances.
United
totality of the
ex
by Brigham’s
also fueled
picion was
(5th
1088,
Roberson,
6 F.3d
States
nervousness,
eye
his avoidance
treme
Cir.1993).
with
questioning,
Mere
answering the
contact,
and his pattern
on one’s
restraint
out some nonconsensual
of his
questions
with
questions
officer’s
or detention.
liberty,
not a “seizure”
is
rely on his
right
Conklin had
own.
434,
429,
Bostick, 501 U.S.
Florida v.
actions
concluding that such
experience
(1991).
2382, 2386,
115 L.Ed.2d
5.Ct.
lying.
may be
an individual
recently noted that
indicate
Indeed,
court has
this
Cir.2001)
banc)
(en
(explaining that a
plans
moving
ing
to his
defendant
"as
typically
to the
plans
relate
travel
stop was reasonable
motorist’s
at the outset
defendant’s]
the motorist
[the
related
because
questions
purpose
traffic
Sow
States v.
traveling”).
might
United
purpose
stop and
traveling
time of the
at the
Cir.1998);
ers,
(1st
United
context,
F.3d
27-28
why
reasons
put
or
into
explain,
(11th Cir.
Hardy,
States v.
been in
have
violation
motorist
1988).
laws).
traffic
*9
ques-
types example, by posing these
For
6.
234,
Jones,
237-41
234 F.3d
States v.
7. United
stop, an
a
officer
tions at
outset of
195-200;
Dortch,
(5th Cir.2000);
at
199 F.3d
circumstance, e.g.,
extenuating
discover
1090-93;
Roberson,
at
6 F.3d
also
Gonza-
see
speeding
to
given
in order
a
driver was
lez,
at
F.3d
756-59.
hospital. See
get
pregnant wife
to
Holt,
264 F.3d
United States
the time
Finally,
process,
this
from
Once Conklin learned that Frank
false,
likely
lin’s I.D. was
Conklin acted
questioning Brig-
started
Trooper Conklin
reasonably,
questioning,
with further
to
patrol car to
ham until he returned to his
uncover Franklin’s true identity
per
and
registration
provided
and I.D.’s
check the
background
form a correct
It
check.
others,
only
lasted
by Brigham
background
while the
check on Franklin
ex-
minutes. Conklin’s
seven
was in
progress
requested
Conklin
graduated response
emerg-
emplified
and
obtained consent from
say that
ing facts. We cannot
Conklin’s
Shabazz,
Thus,
search the vehicle.
as in
point
anything
actions to this
were
but
still waiting
“[b]ecause [Conklin was]
circumstances, and
reasonable under the
computer
check at the time that [he]
of the
purpose
effectuated the
car,
received consent to search the
point
detention to that
continued to be
Equally
legitimate
within the
supported by
justified
the facts that
its
scope
registration
were the
and
Shabazz,
initiation.”
misreading of included, inter questioning forbidden per- length of stopwatch improper itinerary alia, passengers’ and the drivers’ in- detention; erroneous and an missible in the investigatory device legitimate as a in the means” intrusive on “least sistence the cases demands None of first instance. analysis. Tem/-stop questions be asked— series of particular of this three First, extends the dissent a traffic scope of or not asked—within beyond their stop cases well traffic court’s overall detention long as the stop, so Dortch, F.3d reasoning. See facts and More- suspicion. justified by reasonable 236-43; Jones, at 195-201; 234 F.3d at over, implies cases none these of 336, 310 F.3d Santiago, States United plans travel occupants’ about the questions Cir.2002).10 case, fol- (5th In each 337-42 and solely drug to interdiction are related stop, patrol traffic initially valid lowing an scope necessarily fall outside therefore on com- results negative obtained officers implica- The dissent’s stop. traffic of a regis- and vehicle license driver’s puterized by contrary unsupported are tions to the to detain continued tration checks but sense, very by precedents common until suspicion reasonable without drivers courts on, by the rule that rely and cars. consent to search they received oth- behind may the motives not scrutinize illegal suppressed evidence This court Whren permissible actions. erwise The by the up searches.11 drugs turned 811-13, 806, States, 517 U.S. v. United these cases interpret the dissent panel and (1996). 1773-74, 135 L.Ed.2d that Conklin’s a conclusion support to for a stop was extended That the traffic itinerary occupants’ about questioning preliminary by Conklin’s few minutes car any rental stolen “unrelated” pro- But this undeniable. questioning is their deten- unduly prolonged issue and long as it did for reasons required as cess result, apply would the dissent As a tion. There were control. beyond Conklin’s quantity, to limit prior cases these car, Brig- and occupants Brigham’s four questions timing scope and Franklin’s inconsistencies ham’s during asked fur- suspicion, requiring created evasions our col respect due by With efforts ther detective Conklin. inflexi up set no such leagues, these cases challenges the dissent reasonableness timing and that, cases are about had he by noting ble rules. The actions Conklin’s came computer checks papers, Buick’s rental sequence: after closer at the looked “clean,” Brigham no reasonable there remained up he would have observed oc by the vehicle address wrongdoing shared the same Dorothy Harris woman, that, she was 50-year-old cupants. as a Continued thereafter mother. age Brigham’s the deten to be unconstitutionally prolonged right Valadez, conjecture hindsight, but easy tions. See also United States This is Cir.2001). court’s by the district unsupported it is 398-99 event, Jones, any discrepan- fact-findings. the ex In Moreover, in Dortch and les- Dorothy name as by the Harris’s cy between were reinforced tended detentions driver, together with see and suspects’ drivers’ officers’ retention 198; fact none Dortch, F.3d licenses. See case, oral or consent each written en banc In ask this 10. The Government does not was held tainted given the driver search these cases. court reconsider unconstitutionally prolonged detention.
511 pursue investigation to drive a method of enough old companions appeared car, inqui- likely dispel suspicions cause for further to confirm or their gave a rental questioning dissent’s concern minimum ry. quickly, and with a of interfer- of a traffic purpose ence”). to the unrelated regis- license Computerized unconstitutionally extend a detention may tration checks are an efficient means to terms, valid, but not on the in abstract is investigate the status of a driver and his facts of this case. auto, they pursued but need not be to the of, particular sequence or in exclusion Second, prior our cases neither with, lines of other efficient means. Some we are caselaw of which any nor other police questioning before the initiation of a per requiring se rule an institutes aware reasonable, check are often as computer driver’s immediately to obtain the officer enable swift resolution information and registration license and case, Trooper On the facts of this background checks be initiate the relevant investigative methods were rea- Conklin’s questions.12 The dissent asking fore sonable, proceeded with deliberation in re- allowing question seems to conclude conditions, evolving and evince sponse ini ing, legitimate questioning, even before even accidental unneces- purposeful no or an tiating computer checks13 constitutes sary prolongation. and, by around Dortch and Jones end-run unconstitutionally inefficiency, prolongs its Third, by prescribing scope, is, however, no There
the detention.14
investiga
duration and order of Conklin’s
stops.
on traffic
stopwatch
constitutional
tion,
impose
the dissent would
a “least
Instead,
assessing
question
the relevant
contrary
express
intrusive means” test
beyond a rea
whether a detention extends
Supreme
statements of the
Court. See
police
duration is “whether the
sonable
687,
at
105
1568
Sharpe, 470 U.S.
S.Ct.
investigation
diligently pursued a means
(“the
public
protection
fact that the
dispel
or
their
likely
that was
to confirm
abstract,
have been accom
might,
470
at
quickly.” Sharpe,
U.S.
suspicions
not,
by ‘less intrusive’ means does
plished
686,
(citing Michigan
S.Ct.
unreasonable.”)
itself,
render the search
Summers,
692,
14,
701 n.
452 U.S.
Dombrowski,
Cady v.
413 U.S.
(1981));
(quoting
2587,
see
69 L.Ed.2d
447,
2523,
jectives of III. CONCLUSION 686-87, 105 Id. at S.Ct. complished.” reasons, foregoing judgment For the the one articu- A like requirement 1568. court is AFFIRMED. of the district by implied panel lated single, formulaic there is a dissent —that DeMOSS, joined by Judge, Circuit adopt in must approach that officer WIENER, CARL E. STEWART suspicions allay his reasonable order to DENNIS, dissenting: Judges, Circuit upon engraft during stop a traffic —would very type of the Fourth Amendment neither ac- majority opinion Because has Supreme rule the Court bright-line they occurred curately reflects the facts as See, e.g., Robi- consistently eschewed. stop concerning in traffic nor our law this nette, 39,117 417. 519 U.S. I There stops, respectfully traffic dissent. majority aspects opinion are four of the above, discussed For the reasons First, my focus dissent. that are the of in the prescribe presume we do not majority gives only a bare because the investi scope questioning, abstract the of facts, summary put I forth a more techniques, length permissible or gative actually comprehensive of what statement follow undertaken detention Second, during stop.1 occurred the traffic The bounds of ing stop. traffic valid majority’s reasonable assertion clear, if fact-intensive: existing caselaw are stop existed to extend the is not long may last as as is a traffic detention Third, supported in either or fact. law reasonably necessary pur to effectuate the majority misapplies Supreme Court’s pose including the resolution stop, concerning traf- and our Circuit’s case law by articu- supported suspicion, reasonable Fourth, dangers stops. fic I address professional the officer’s lable facts within majority’s opinion in the judgment, emerges during inherent Trooper rights Because actions were of constitutional which it Conklin’s erosion not the circumstances permits. unreasonable under case,
of this the detention companions his did violate the Fourth I. The Facts in the Record. Amendment. P.M., Shortly Sunday, May 4:00 after 14, 2000, car turning patrol while Amendment vio
Absent Fourth lation, overpass, Trooper around on an Shannon Brigham’s consent to search the Department of the Texas of Public unconstitutionally tainted. Conklin vehicle was not Conklin”) Gonzalez, Further, a late Safety (“Trooper observed See at 759. in the out- court’s model Buick sedan northbound supports the record the district these the best available facts. The circumstances of the traffic evidence subsequent summary in dissent is close to a interrogation and search are re- this transcript videotape. verbatim tape corded on a video in the record which is continued, asking Brigham which in front of it Conklin following the vehicle lane side highway. they stayed a rise of Houston had closely part over too this pull over decided they stayed. Brigham had an- vehicle, young three black contained which part that he not know in which swered did young black female. males and one and, they stayed of Houston had after moment, for a answered that pausing approached he making stop, After *13 stayed Quinta Trooper at a La Inn. Conk- 4:13 P.M. approximately at the car on foot part lin of Houston the La asked which produce his driv- asked the driver and in, Quinta Brigham and to to which registration and vehicle was located er’s license car and move back behind step out of the replied first that he was not sure and then patrol in car to an area front thought Highway said he it was the North complied gave vehicle.2 The driver then asked Trooper 59 area. Conklin li- Arkansas driver’s Conklin his Trooper Houston; Brigham when he had arrived in agreement copy and a of the rental cense Brigham Friday. Trooper said Conklin license identified for the car. driver’s asking Brigham specify what persisted, and the rental Reginald Brigham him as Friday Brigham time on he had arrived. Dorothy identified the lessee agreement responded they Friday that arrived had Harris.3 morning. After three to four minutes of testified later Trooper questioning, Trooper Conklin this Conklin turned con- reviewing the license and rental while agreement Brig- to the rental and asked tract, immediately noticed that the 50- he Brigham car. ham who had rented the the car year-old woman who had rented mother, Dorothy responded that his Har- his sus- present, and this aroused was ris, Trooper it. Conklin asked had rented stolen. might the car picion was; Brigham him that she where she told patrol in Standing in the ditch front of was in Arkansas.
vehicle, why he had been Brigham asked testified that he Trooper Conklin later explained pulled Trooper over and Conklin (1) the woman suspicious became because: following closely too Brigham age as 50 rented the vehicle listed her who in thought passenger Trooper Conklin car; in could not have been and thus wearing not have been the front seat (2) Brigham did not share the same initiating promptly a seatbelt. Instead of person who rented last name as Brigham’s check on driver’s age and Despite noticing car. the renter’s pa- plate or the car’s license license however, name, testi- Trooper last Conklin investiga- a means of pers, which would be hearing that he did suppression fied at the likely dispel to confirm or tion that was (1) Brig- the address on not notice that: quick- being the car stolen suspicion about as the driver’s license was the same ham’s began question ly, Trooper Conklin by Harris on the rent- home address listed coming him he was Brigham, asking (2) or, at Harris was of agreement; al Brig- travel. purpose from and the of his moth- Brigham’s could be age she in been Hous- ham answered that he had testified at the Trooper er. Conklin also passengers and one of the pleasure ton on Brigham seemed suppression hearing that family Trooper in Houston. had visited precedents at this operating pro- under our requests 3. It is clear are standard These point Trooper a seizure Conklin effected intending to issue cedure for an officer Brigham law under our Fourth warning a traffic citation. ticket or began. and detention Franklin by asking shaking, and continued nervous, were Conklin that his hands family. question stayed with a friends or answer a whether he with that he tended to at a hotel. stayed Franklin said had question.4 hotel; asked which Trooper Conklin Next, asked Trooper Conklin Quinta, Brig- as had Franklin said a La family- had passenger who point out the Trooper asked how often ham. Houston, if had also asked in to Houston and whether he Franklin went appeared to indi- any weapons. Brigham responded Franklin anyone knew there. Franklin, who was it Brandon cate was and that he go that he did not there often seat, family that had in the back seated in Houston that he couple girls” knew “a Houston; responded that he Brigham also Trooper just college 4:17 had met at a function. This was after weapons. had no specifically questioned Conklin remarked never P.M. and to find out family this time that he wanted if in Houston. Franklin he had *14 the friend had fami- part which of Houston P.M., Trooper Between 4:19 and 4:20 car, ly.5 approached the Trooper Conklin and approached next the vehicle Conklin the vehicle step Franklin to out of asked remaining questions asked similar ear off the shoulder go and in front of the Perry occupants, Quincy two requested and Frank- grass, and into the had no young female who identification. license, which license. The lin’s driver’s they Trooper Conklin asked where were fictitious, identified out to be later turned from, was for coming and whether the visit Trooper Franklin as Brooks. Siraerease Perry pleasure. responded business or began ask Franklin the same Conklin they plea- that had been in Houston for that he had asked battery questions long Trooper sure. Conklin asked how Trooper Conklin first asked Brigham. there, they Perry had been and said a from. Franklin they coming were asked couple days. Trooper Conklin they had in Houston responded that been arrived, Perry day they which had and gone Isley to see an Brothers and had initially they that had arrived responded asked when Trooper concert. Conklin Friday morning, suggested but the woman concert; they Franklin said went to the Saturday morning. it perhaps was how Friday night. Trooper Conklin asked Perry they stayed had one then stated Houston, long they had been in and day nights. Trooper and two When Conk- they couple there a Franklin said had been they not have ar- lin indicated could day days. Trooper Conklin asked what stayed Saturday morning rived and two ini- they and time had arrived. Franklin nights, Perry seemed to indicate tially Friday late afternoon or eve- said Thursday night that he was not had left home and arrived ning, but then stated Friday exactly Trooper morning.6 of their arrival time. Houston sure Brigham's responses suspicions 4.Although on video- 5. The two of criminal conduct unclear, legitimately Trooper which could be in Conk- only tape slightly were two are there (1) point lin’s mind at this were: was the Brigham ques- instances where answered (2) following closely; car Buick too was question and in both instances it tion with beyond my compre- the Buick stolen. It is appeared Brigham Troop- did not understand subject hension as to what relevance this question not hear the er Conklin’s or could Trooper explore Conklin said he needed question because of the traffic noise from had either of these issues. busy highway. videotape clearly does not show nervousness. Unfortunately, videotaped conversation Perry involving is not com- the woman and unavailable; P.M., criminal eight after almost clear and details were Finally, at 4:21 (2) the license Franklin offered the driver and the minutes of likely fictitious. about matters unrelated passengers three i.e., follow- stop, for the traffic to the basis Then, Trooper emerged Conklin from close, unrelated to the circum- ing too aggressively his car and asked car, Trooper being in the rental stance of age what Franklin’s name and was. After patrol to his car to radio Conklin returned initially understanding Trooper Conk- and rental car identifica- personal in the question, Brigham responded lin’s that his immediately, Almost tion information. Brandon, thought first name was reported that the rental car had dispatcher full Trooper name was Brandon Franklin. nearly Then for reported not been stolen. then confronted Franklin. Frank- and no ac- five minutes there was silence initially lin tried to maintain the fake iden- in the tivity during which stood tity then admitted that his name was but car, wait- the rental Franklin ditch behind Franklin. then Trooper Brandon car, in front of the rental ed in the ditch it asked for Franklin’s wallet and searched in the rent- passengers the other remained Thereafter, nothing.7 found around but car, in his Trooper Conklin waited al P.M., 4:33 Conklin called to hear back from his radio patrol vehicle new identification and waived over local driver’s licenses he had contact on the car He Nacogdoches police backup. *15 waiting, Trooper Conklin collected. While the local officers on the situ- briefed orally videotape a mes- recorded ation, and remarked to the officer that he (1) to the rental sage to himself that: try going get was to to consent to search subjects neither 25 agreement, were anyway would search the vehicle be- but agree- on the rental years old nor listed standing four had cause none of the (2) (Harris car); ment had rented the protest.8 (hands were subjects seemed nervous police, Troop- to the local speaking After nor Frank- shaking) Brigham and neither Brigham er issued a written warn- Conklin Trooper eye
lin had made
contact with
close,
Brigham
ing
driving
too
which
(3)
Conklin;
appeared
all four individuals
It
sign.
had to
This was at 4:34 P.M.
legal standing as to the vehicle
to lack
videotape
Troop-
from the
whether
unclear
they were not listed as authorized
because
li-
Brigham’s driver’s
er Conklin returned
(4)
drivers;
they
conflicting sto-
had
him,
but
agreement
cense and the rental
in Houston
ries about their arrival time
suppres-
at the
Trooper Conklin testified
they
there.
and who
had visited
the license.
hearing
sion
that he returned
P.M.,
testimony
hap-
no
about what
eight
At 4:29
minutes after receiv- There is
Conklin,
rec-
agreement.
to the rental
The
Trooper
pened
contact from
ing radio
(1)
launched
Perry
Trooper
ord
Conklin
dispatcher
reported that:
is clear
request immedi-
activity in
into his consent to search
Brigham
had some criminal
warning
Brigham signed the
ately
their licenses were
after
backgrounds,
their
but
confusion,
Trooper
artic-
they
point
Conklin had not
pletely
8. At this
clear. But after some
Thursday night
objective
any particularized
to indicate that
left
fact which
seem
ulated
Friday morning in Houston.
and arrived
justify
suspicion
car was
a
would
required
any
carrying
which
contraband
any
aware of
statute or rule of law
I am not
search.
Trooper Conklin to search
which authorized
circum-
the wallet of Franklin under these
stances.
P.M.,
supported
is not
any suspicion
4:35
minutes
At about
citation.
i.e.,
facts,
is not reasonable.9
Brigham,
contact with
making initial
after
prece-
majority
Supreme
insists that
Court
Brigham that
informed
Trooper Conklin
(1)
propositions that:
supports
dent
for contraband.
jobs
patrol
is to
one of his
search,
may hold that there was reason-
this Court
which
consent
He asked for
Trooper Conklin
suspicion
able
because
proceed-
Conklin
gave. Trooper
Brigham
have
the car was stolen
passengers,
could
believed
all the car’s
pat-down
ed to
though
reported
it had not been
sto-
even
and wait over
told
to relax
no other
ditch,
though
and even
there were
and told all the
len
grassy area
stolen;
it
indicating
facts
the likelihood was
gras-
to the
passengers
step
over
other
(2)
down;
Trooper
this Court must let
Conk-
later
he
instructed
sy area and sit
in support
lin
an inference
draw such
talk to each other. The local
them not to
if such an infer-
reasonable
even
Brigham and the
kept
officers
watch over
objectively unreasonable.
Pro-
ence is
Trooper
searched the
others while
Conklin
Majority Opinion
(citing
at 509
posed
trunk
compartment and
passenger
Arvizu,
266, 273,
534 U.S.
opened a cooler United States
Trooper
vehicle.
(2002)).
on a
the Circumstances.
majority opinion
The
discounts the ob-
jective
Trooper
partic-
majority correctly restates the law
facts
Conklin’s
The
findings, both of which indicate
may
that courts
not scrutinize the motives
ularized
car
suspicion
ac
there was no reasonable
permissible
behind otherwise
States,
particu-
517 U.S. was stolen and there was no other
tions. Whren v. United
1769, 135
806, 811-13, 116
objective
suspicion
or
L.Ed.2d 89 larized
reasonable
S.Ct.
(1996).
view,
majority
wrongdoing.
computer
The
check of the
my
But
is
registration indicated it had
implied
incorrect in its
conclusion that it
car’s license
Further,
reported
may
follows that courts
not look not been
stolen.
therefore
clearly supports
Brig-
the fact that
totality
at the
of the circumstances to de
record
activity
Trooper
ham
his mother rent-
illegal
termine as to what
there
told
car;
Harris and
were of
suspicion
was reasonable
of and eliminate
ed the
See,
Arvizu,
why they
doing
to wonder
are
e.g.,
United States v.
534 U.S.
sonable officer
266, 278,
744,
this,'
519 470 398-99). Sharpe, v. States quickly.” United Valadez, 267 F.3d (citing at 511 1568, 686, L.Ed.2d Jones, 675, Dortch, 105 S.Ct. U.S. the applies majority The (1985). to that the clear me It seems way a such of cases in Santiago line in this questioning a delay and extended unreasonably extend not may an officer (after confirming dispelling or sus receiv- case was end on the back stop traffic checks), “quick,” un- much less diligent, in a picions but to ing answers more in this case is made holding This fact even new manner.12 majority’s the der ques end. of considering the front the one set so on free to do evident officer is the is asked of majority’s opinion never the of tions that The result when, the tech- precisely and is was passengers or the plainly illogical, to avoid by Trooper get did where, from whom nique used Dortch, et al. of we have inhibitions rented car? As the of the possession unrelated before, on stated this result Further, to reach in an effort make stop the that extends can matters over the leaps takes several majority the States United the detention unreasonable. Supreme the Court law of established 425, Machuca-Barrera, 432- stops. concerning traffic this Circuit Cir.2001). 33, n. 21 Supreme First, majority insists Second, passen- of whether the issues proposition supports law case Court licenses have their questioned, can be gers on stopwatch constitutional is no that there checked, from the vehicle or be removed Opinion Majority Proposed stops. traffic any infor- value and what separated, statement, miss- such a broad at 510. But could passengers from the gleaned mation clearly Supreme Court es the mark an ex building in Trooper Conklin be to to it courts when instructed established simply suspicion was reasonable post diligently whether “examine facto case in this parties not addressed investigation that a means of pursued by this Cir- decided never been and has suspicions dispel their or likely to confirm temporary no and last must be detention plurality Su- Royer, of the In Florida necessary to longer effectuate scope than permissible preme addressed the Court Similarly, investi- offering purpose of the stop of several Terry in the midst of a employed be should gative methods the Fourth Amendment. about observations 1319, available reasonably 75 L.Ed.2d 103 S.Ct. intrusive means U.S. least stated, suspicion in (1983). part: dispel officer’s verify or It period of time. short strictly tied must be of the search scope The (citations and inter- Id. at 103 S.Ct. justified which the circumstances to and omitted). Although this quotation marks nal permissible. The its initiation rendered plurality by only a was decided case requirement of the Fourth reasonableness Justices, plurality indication the there is no po- requires less when the no general discussion of because resulted permitted less on is a seizure lice action fact, in case. In to this principles that relate legitimate probable cause because than concurrence, explained, Brennan Justice scope of The interests. law enforcement requirement plurality’s interpret "I carefully tailored must be the detention pursuant employed investigative methods underlying justifications. its means stop 'the least intrusive Terry to a suspi- permitting seizures predicate The verify dispel the or reasonably available law probable cause is that cion short time,’ period a short officer’s in- a limited interests warrant enforcement availability intrusive less to mean security of sus- personal on the trusion reasonable an otherwise make means permitted scope intrusion pect. *, at 511 n. Id. unreasonable.” particular with the vary some will extent *19 J., (Brennan, concurring the re- in case. This of each circumstances facts and omitted). (internal sult) citation however, much, investigative an clear: majority by cuit. But the sweeping predict its I holding in this case case, opinion citing only in this an will Eighth lead to further infringement on the permitting case the questioning privacy traveling Circuit of of the public. ma- The passengers, jority significantly expanded opinion permits has a law officer to of what make a traffic scope stop is reasonable conduct for a minor and innocu- during a ous traffic expand traffic violation and then
stop into a full-blown interrogation of driver and all occupants of the vehicle as Dangers TV. Inherent in Majority’s they to where going, they are where have Holding. been, they did, stayed, what they propriety of and motivations behind to, they whom talked and what events suspect stop somewhat initial in this attended. This in fishing expedi- results a case are not before the Court.13 But in tion to see if occupants the vehicle’s have the words of Justice in O’Connor her dis- engaged any in criminal conduct other Vista, in sent Atwater City Lago than the traffic violation for which stop of joined Stevens, Ginsburg, Justices and was made. The majority opinion permits Breyer, precisely “it is these [sub- because officer, during pendency of jective] beyond pur- motivations are our stop, require the driver and all occu- vigilantly view we must ensure that pants of the vehicle, vehicle to vacate the poststop officers’ prop- actions—which are subjected be pat-down to a search for erly within our comport with the weapons, be required to separate and reach — Fourth guarantee Amendment’s of stay reason- outside the vehicle at locations 318, 372, ableness.” 532 U.S. specified by the separate officer and apart 1536,149 (2001)(O’Connor, J„ L.Ed.2d 549 other, from each all any without conduct dissenting). The majority opinion on part fails to of the driver or the occupants just do words, that. In other we safety threatens the in officer remedy unable to wrong any Likewise, initial way. majority opinion potentially occurred in this case because of will now allow the require officer to each a rule, procedural technical or occupant but we are in the vehicle to furnish sufficient prevented from remedying post- identification allow the officer to a run stop constitutional actually violation that computer check on each individual without occurred. any suspicion that such occupant has corn- 13. In this unspoken case there is the issue of stop, reasons for that suggestive are so profiling. recognize racial I that counsel for typi- circumstances in which racial profiling challenged neither propri- cally the initial occurs that the district court and our ety following closely, traffic too Court fail in responsibility our to the hun- did Equal nor he raise an Protection minority claim dreds of our daily citizens who exer- impermissible based on an racial classifica- right cise their constitutional to travel in- (i.e., unequal tion enforcement laws terstate commerce without harassment when race), based on nor did he eyes raise Fourth we close our reality and minds to the challenge illegiti- based on these circumstances. Texas now has enacted use mate of race as a factor prohibiting for reasonable statutes profiling racial re- view, suspicion. my But in quiring the obvious facts agencies law enforcement develop case, i.e., young this plans four African-Ameri- profiling eliminate the use of racial traveling cans ain vehicle keep with out-of-state track concerning of data traffic plates stopped license public highway stops and arrests. See Tex.Code Crim. Proc. East Texas highway (Vernon white patrolman for Ann art. Supp.2004). 2.131-137 Re- "following closely" too interrogated grettably, yet then these statutes were not effective for 20 minutes about matters to the stopped. unrelated when *20 that vehicle whenever contraband opinion majority The any offense. mitted Because any for traffic violation. running stopped a com- after the officer permit will abuse from vehi- for potentials of the obvious registration check on puter law, Legisla- to continue report hope I that neither a “clean” getting such cle and occupants have Congress the driver would ever interrogate ture nor All chooses. subject it; he am dead whatever to enact but I enough about votes any particularized without have the this can be done courts do certain that of crim- objectively reasonable or achieve that end authority to constitutional con- may be conduct; all of this inal construing what is reasonable. simply over sequence in whatever ducted dissent. respectfully I chooses. the officer frame time whatever any contra- discovers if officer
Finally, long it so vehicle, may seize he in the
band subsequent at a testify can the officer
as opinion that in his hearing
suppression nervous, occupants were
driver him, with eye contact not establish
would to the conflicting answers slightly gave Petitioner, ZHU, Yuqing which questions interrogating unrelated them. posed to were step in is another majority’s opinion Attorney ASHCROFT, U.S. John law judge-developed of direction General, Respondent. means; justifies the says the end No. 02-61098. drugs or finding of contraband
makes reasonableness; test of ultimate Appeals, of States Court United officers if law enforcement concludes that Fifth Circuit. reason- a priori search was drugs the find my con- expressed previously I have able. Aug. diluting the process this
cern about Amendment the Fourth
protections to what interpretation too broad
giving actions.” “reasonable
constitutes Gould, F.3d United States
See Cir.2004) (DeMoss, J., dissenting) protec- unhooking
(referring to the requirement from exception sweep
tive an arrest the execution being part of the need eliminating effectively
warrant the Fourth with complying
for every- finding almost guise
under reasonable). it would suppose I
thing the Texas for
constitutionally possible Congress the United States
Legislature or merely by says adopt a statute highway public on a a vehicle
operating to have shall be deemed
every operator vehicle of that a search
consented to