UNITED STATES OF AMERICA, Plaintiff-Appellee, versus REGINALD BRIGHAM, Defendant-Appellant.
NO. 02-40719
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
August 19, 2004
United States Court of Appeals Fifth Circuit FILED August 19, 2004 Charles R. Fulbruge III Clerk
Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DEMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO and PICKERING, Circuit Judges.
EDITH H. JONES, Circuit Judge:
During a traffic stop near Nacogdoches, Texas, routine questioning of the occupants and a consensual search uncovered over five kilograms of a controlled substance, liquid codeine syrup. The district court denied the appellant‘s motion to suppress. We granted en banc review of a divided panel decision that reversed the district court and held that the traffic stop was unconstitutionally extended and that the consensual search was improper. Clarifying prior precedents regarding the proper application of the Fourth Amendment in traffic stop cases, we hold
I. BACKGROUND
A. The Traffic Stop1
On May 14, 2000, Reginald Brigham and three friends were driving on U.S. Highway 59 passing around Nacogdoches, Texas. At 4:13 p.m., State Trooper Shannon Conklin spotted their silver 2000 Buick sedan following too closely behind another vehicle in violation of Texas traffic laws. Conklin stopped the Buick; a videocamera and microphone mounted in the patrol car recorded the entire traffic stop.
Conklin first approached Brigham, the driver, and asked him to step out of the vehicle and provide his license and insurance papers. Brigham complied and produced an Arkansas driver‘s license and a rental agreement from an Avis branch in Memphis, Tennessee, listing Dorothy Harris, a 50-year-old female who lived in West Memphis, Arkansas, as the lessee. Since none of the occupants appeared to be a 50-year old female, and no additional drivers were authorized on the rental agreement, Conklin became suspicious.
At 4:15 p.m., two minutes into the stop, Conklin began asking Brigham a series of basic questions about the group‘s travel
At 4:17 p.m., Conklin asked the passenger who Brigham had indicated was visiting relatives in Houston to step out of the vehicle. The passenger produced what appeared to be a Tennessee I.D. card with the name “Sircrease D. Brooks.” Conklin would soon discover that the I.D. was fictitious and that the passenger‘s name was actually Brandon Franklin. Conklin questioned Franklin about the group‘s travel plans. Franklin explained that the group was coming from Houston where they had attended an Isley Brothers concert on Friday night. Conklin then asked Franklin about the specifics of the trip, including what time the group had arrived in Houston, whom they had visited, and where they stayed. Franklin
At 4:20 p.m., Conklin asked the two remaining passengers for identification and attempted to determine which of the stories he had been told was accurate. The female, Keisha Coleman, indicated that she did not have any identification, and the other male produced an Arkansas card identifying him as Quincy Perry. Perry and Coleman appeared confused and were inconsistent concerning the group‘s travel plans, as Perry initially stated that they arrived in Houston on Friday morning, while Coleman suggested Saturday.
At 4:21 p.m., now eight minutes into the stop, Conklin returned to his car and initiated computer checks on the Buick and the three identification cards he had received. He noted for the videotape that all three males appeared “extremely nervous.” Nevertheless, Conklin had informed Brigham that if his license was “clean,” they would soon be on their way. At 4:23 p.m., the registration check on the Buick revealed that the plates matched the vehicle and there was no stolen vehicle report. At the
At 4:29 p.m., the results of the I.D. checks suggested that Franklin‘s I.D. was likely fictitious. After confirming the I.D. number that he had provided to the dispatcher, Conklin examined Franklin‘s I.D. more closely and concluded it was a forgery. At approximately 4:31 p.m., Conklin questioned Brigham and learned Franklin‘s true identity. Franklin, however, continued to insist to Conklin that he was “Sircrease Brooks,” until Conklin confronted him about the false I.D. card. Conklin then returned to his patrol car to check Franklin‘s actual identity.
At approximately 4:34 p.m., while Franklin‘s I.D. check was still pending, Conklin waved over a Nacogdoches police unit to provide backup and briefed the officers on the situation and his intent to seek consent to search the vehicle. Conklin then
B. Court Proceedings
On January 11, 2001, Brigham, Franklin, and Perry were indicted by a federal grand jury for possessing more than four kilograms of codeine with intent to distribute in violation of
On appeal, the panel majority held that Trooper Conklin unconstitutionally extended the traffic stop by questioning Brigham
II. DISCUSSION
Brigham does not here challenge the validity of the initial traffic stop for following too closely.2 See Terry v. Ohio, 392 U.S. 1, 88 (1968); see
The stopping of a vehicle and detention of its occupants constitutes a “seizure” under the Fourth Amendment. This court, following the Supreme Court, has treated routine traffic stops, whether justified by probable cause or a reasonable suspicion of a violation, as Terry stops.4 See Berkemer v. McCarty, 468 U.S. 420, 439 (1984); Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (per curiam); see e.g., United States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999).
Pursuant to Terry, the legality of police investigatory stops is tested in two parts. Courts first examine whether the officer‘s action was justified at its inception, and then inquire whether the officer‘s subsequent actions were reasonably related in scope to the circumstances that justified the stop. See Terry, 392 U.S. at 19-20. Brigham suggests, and the panel majority agreed, that the Fourth Amendment required Conklin to return to the patrol car immediately after he learned that none of
The Supreme Court has long held that the “touchstone of Fourth Amendment analysis is reasonableness.” Ohio v. Robinette, 519 U.S. 33, 39 (1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)) (internal quotation marks omitted). Reasonableness requires a balancing of the public interest with an individual‘s right to be free from arbitrary intrusions by law enforcement. Mimms, 434 U.S. at 109. Reasonableness, measured “in objective terms by examining the totality of the circumstances,” “eschew[s] bright-line rules, instead emphasizing the fact-specific nature of the inquiry.” Robinette, 519 U.S. at 39; see also Florida v. Royer, 460 U.S. 491, 506 (1983) (rejecting “a litmus-paper test” and recognizing that “there will be endless variations in the facts and circumstances” and therefore, “it is
Under the second prong of the Terry test, the question before the court is whether Conklin‘s actions after he legitimately stopped the Buick were reasonably related in scope to the circumstances that justified the stop, or to dispelling his reasonable suspicion developed during the stop. This is because a detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop, unless further reasonable suspicion, supported by articulable facts, emerges. Dortch, 199 F.3d at 200; United States v. Machuca-Barrera, 261 F.3d 425, 434 (5th Cir. 2001).
Like other circuits,5 this court has found no constitu-
But even more important, we “reject any notion that a police officer‘s questioning, even on a subject unrelated to the purpose of a routine traffic stop, is itself a Fourth Amendment violation.” Shabazz, 993 F.2d at 436 (emphasis added). “[D]etention, not questioning, is the evil at which Terry‘s second prong is aimed.” Id. The Fourth Amendment is concerned with ensuring that the scope of a given detention is reasonable under
Based on these authorities, Trooper Conklin‘s questioning of Brigham and his companions was fully within the scope of the detention justified by the traffic stop, particularly after Conklin ascertained that (1) Brigham was not the owner or lessee of the vehicle, (2) the lessee was not present in the Buick, and (3) Brigham‘s and Franklin‘s versions of their itinerary conflicted. This court has consistently approved a police officer‘s questioning a driver‘s travel plans where the driver was not the authorized vehicle lessee or otherwise appeared to lack driving authority.7 Further, as the Eighth Circuit has noted, the Fourth Amendment permits “[a] police officer [to] undertake similar questioning of the vehicle‘s occupants to verify the information provided by the driver.” Linkous, 285 F.3d at 719. Conklin‘s
Finally, this process, from the time Trooper Conklin started questioning Brigham until he returned to his patrol car to check the registration and I.D.‘s provided by Brigham and the others, lasted only seven minutes. Conklin‘s questioning exemplified a graduated response to emerging facts. We cannot say that Conklin‘s actions to this point were anything but reasonable under the circumstances, and they effectuated the purpose of the stop.
Equally within the legitimate scope of the stop were the registration and license checks that Conklin then initiated on the vehicle and its occupants. This procedure would have been permissible even without the additional information he had gleaned, which led to a reasonable suspicion that, at the very least, the vehicle might have been stolen.8 See Dortch, 199 F.3d at 199. While the dispatcher promptly informed Conklin that the Buick had not been reported stolen, Conklin reasonably waited for the I.D. checks to
Once Conklin learned that Franklin‘s I.D. was likely false, Conklin acted reasonably, with further questioning, to uncover Franklin‘s true identity and perform a correct background check. It was while the background check on Franklin was in progress that Conklin requested and obtained consent from Brigham to search the vehicle. Thus, as in Shabazz, “[b]ecause [Conklin was] still waiting for the computer check at the time that [he] received consent to search the car, the detention to that point continued to be supported by the facts that justified its initiation.” Shabazz, 993 F.2d at 437.
In sum, Conklin‘s actions were reasonable under the circumstances and the detention as a whole was reasonable. As the district court summarized, “[t]he absence of the authorized driver, the inconsistent explanation as to the trip to Houston, and
Because the en banc court reaches a different result than does the dissent, it is useful to explain how our analyses diverge. The dissent, like the panel majority, concludes that under our circuit‘s precedent, Conklin unconstitutionally extended the detention of Brigham and his passengers by questioning them about their travel plans before running a computer check on the vehicle‘s registration. This conclusion embodies three critical mistakes: a misreading of Fifth Circuit precedent; an improper stopwatch on the length of permissible detention; and an erroneous insistence on “least intrusive means” in the Terry-stop analysis.
First, the dissent extends three of this court‘s traffic stop cases well beyond their facts and reasoning. See Dortch, 199 F.3d at 195-201; Jones, 234 F.3d at 236-43; United States v. Santiago, 310 F.3d 336, 337-42 (5th Cir. 2002).10 In each case, following an initially valid traffic stop, patrol officers obtained negative results on computerized driver‘s license and vehicle registration checks but continued to detain the drivers without reasonable suspicion until they received consent to search the cars. This court suppressed evidence of illegal drugs turned up by
With due respect to our colleagues, these cases set up no such inflexible rules. The cases are about timing and sequence: after the computer checks came up “clean,” there remained no reasonable suspicion of wrongdoing by the vehicle occupants. Continued questioning thereafter unconstitutionally prolonged the detentions. See also United States v. Valadez, 267 F.3d 395, 398-99 (5th Cir. 2001). Moreover, in Dortch and Jones, the extended detentions were reinforced by the officers’ retention of the suspects’ drivers’ licenses. See Dortch, 199 F.3d at 198; Jones, 234 F.3d at 238. This court has not forbidden questioning that included, inter alia, the drivers’ and passengers’ itinerary as a legitimate investigatory device in the first instance. None of the cases demands a particular series of questions be asked or not asked within the scope of a traffic stop, so long as the overall detention is justified by reasonable suspicion. Moreover, none of these cases implies that questions about the occupants’ travel plans are related solely to drug interdiction and therefore
That the traffic stop was extended for a few minutes by Conklin‘s preliminary questioning is undeniable. But this process required as long as it did for reasons beyond Conklin‘s control. There were four occupants in Brigham‘s car, and Brigham‘s and Franklin‘s inconsistencies and evasions created suspicion, requiring further detective efforts by Conklin. The dissent challenges the reasonableness of Conklin‘s actions by noting that, had he looked closer at the Buick‘s rental papers, he would have observed that Brigham and Dorothy Harris shared the same address and that, as a 50-year-old woman, she was of the right age to be Brigham‘s mother. This is an easy conjecture in hindsight, but it is unsupported by the district court‘s fact-findings. In any event, the discrepancy between Dorothy Harris‘s name as lessee and Brigham as driver, together with the fact that none of Brigham and his companions appeared old enough to drive a rental car, gave cause for further inquiry. The dissent‘s concern that questioning unrelated to the purpose of a traffic stop may unconstitutionally extend a detention is valid, in abstract terms, but not on the facts of this case.
Third, by prescribing the scope, duration and order of Conklin‘s investigation, the dissent would impose a “least intrusive means” test contrary to express statements of the Supreme Court. See Sharpe, 470 U.S. at 687 (“the fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, by itself, render the search unreasonable.“) (quoting Cady v. Dombrowski, 413 U.S. 433, 447 (1973)) (internal quotation marks omitted). Instead, the Court holds, “the question is not simply whether some other alternative existed, but whether the police acted unreasonably in failing to recognize and pursue it.” Id. Sharpe also cautioned courts against engaging in “unrealistic second-guessing,” and noted that “creative judge[s] engaged in post hoc evaluation of police conduct
For the reasons discussed above, we do not presume to prescribe in the abstract the scope of questioning, investigative techniques, or length of permissible detention that may be undertaken following a valid traffic stop. The bounds of existing caselaw are clear, if fact-intensive: a traffic detention may last as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of reasonable suspicion, supported by articulable facts within the officer‘s professional judgment, that emerges during the stop. Because Trooper Conklin‘s actions were not unreasonable under the circumstances of this case, the detention of Brigham and his companions did not violate the Fourth Amendment.
Absent a Fourth Amendment violation, Brigham‘s consent to search the vehicle was not unconstitutionally tainted. See Gonzalez, 328 F.3d at 759. Further, the record supports the district court‘s determination that Brigham‘s consent was voluntarily given as an independent act of free will. Id.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Because the majority opinion neither accurately reflects the facts as they occurred in this traffic stop nor our law concerning traffic stops, I respectfully dissent. There are four aspects of the majority opinion that are the focus of my dissent. First, because the majority gives only a bare summary of the facts, I put forth a more comprehensive statement of what actually occurred during the traffic stop.15 Second, the majority‘s assertion that reasonable suspicion existed to extend the stop is not supported in either law or fact. Third, the majority misapplies the Supreme Court‘s and our Circuit‘s case law concerning traffic stops. Fourth, I address the dangers inherent in the majority‘s opinion and the erosion of constitutional rights which it permits.
I. The Facts in the Record.
Shortly after 4:00 P.M., on Sunday, May 14, 2000, while turning his patrol car around on an overpass, Trooper Shannon Conklin of the Texas Department of Public Safety (“Trooper Conklin“) observed a late model Buick sedan northbound in the outside lane following the vehicle in front of it too closely over a rise in the highway. Trooper Conklin decided to pull over this vehicle, which contained three young black males and one young black female.
Trooper Conklin testified later that while reviewing the license and rental contract, he immediately noticed that the 50-year-old woman who had rented the car was not present, and this aroused his suspicion that the car might be stolen. Standing in the ditch in front of the patrol vehicle, Brigham asked why he had been pulled over and Trooper Conklin explained that Brigham was following too closely and Trooper Conklin thought the passenger in the front seat may not have been wearing a seatbelt. Instead of promptly initiating a computer check on Brigham‘s driver‘s license or the car‘s license plate and papers, which would be a means of investigation that was likely to confirm or dispel suspicion about the car being stolen quickly, Trooper Conklin began to question Brigham, asking him where he was coming from and the purpose of his
Trooper Conklin later testified that he became suspicious because: (1) the woman who rented the vehicle listed her age as 50 and thus could not have been in the car; and (2) Brigham did not share the same last name as the person who rented the car. Despite noticing the renter‘s age and last name, however, Trooper Conklin testified at the suppression hearing that he did not notice that: (1) the address on Brigham‘s driver‘s license was the same as the home address listed by Harris on the rental agreement; or, (2) at
Next, Trooper Conklin asked Brigham to point out the passenger who had family in Houston, and also asked if Brigham had any weapons. Brigham appeared to indicate it was Brandon Franklin, who was seated in the back seat, that had family in Houston; Brigham also responded that he had no weapons. This was just after 4:17 P.M. and Trooper Conklin remarked at this time that he wanted to find out in which part of Houston the friend had family.19 Trooper Conklin approached the car, asked Franklin to step out of the vehicle and go in front of the car off the shoulder and into the grass, and requested Franklin‘s driver‘s license. The license, which later turned out to be fictitious, identified Franklin as Siracrease Brooks. Trooper Conklin began to ask Franklin the same battery of questions that he had asked Brigham. Trooper Conklin first asked where they were coming from. Franklin responded that they had been in Houston and had gone to see an Isley Brothers
Between 4:19 and 4:20 P.M., Trooper Conklin next approached the vehicle and asked similar questions of the remaining two occupants, Quincy Perry and the young female who had no identification. Trooper Conklin asked where they were coming from, and whether the visit was for business or pleasure. Perry responded that they had been in Houston for pleasure. Trooper Conklin asked how long they had been there, and Perry said a couple of days. Trooper Conklin asked which day they had arrived, and Perry initially responded that they had arrived Friday morning, but the woman suggested that perhaps it was Saturday morning. Perry then stated that they had stayed one day and two nights. When
Finally, at 4:21 P.M., after almost eight minutes of questioning the driver and the three passengers about matters unrelated to the basis for the traffic stop, i.e., following too close, and unrelated to the circumstance of being in the rental car, Trooper Conklin returned to his patrol car to radio in the personal and rental car identification information. Almost immediately, the dispatcher reported that the rental car had not been reported stolen. Then for nearly five minutes there was silence and no activity during which Brigham stood in the ditch behind the rental car, Franklin waited in the ditch in front of the rental car, the other passengers remained in the rental car, and Trooper Conklin waited in his patrol vehicle to hear back from his radio contact on the driver‘s licenses he had collected. While waiting, Trooper Conklin recorded orally on the videotape a message to himself that: (1) as to the rental agreement, the subjects were neither 25 years old nor listed on the rental agreement (Harris had rented the car); (2) the subjects seemed nervous (hands were shaking) and neither Brigham nor Franklin had made eye contact with
At 4:29 P.M., eight minutes after receiving radio contact from Trooper Conklin, the dispatcher reported that: (1) Perry and Brigham had some criminal activity in their backgrounds, but their licenses were clear and criminal details were unavailable; and (2) the license Franklin offered was likely fictitious.
Then, Trooper Conklin emerged from his car and aggressively asked Brigham what Franklin‘s name and age was. After initially not understanding Trooper Conklin‘s question, Brigham responded that his first name was Brandon, and thought his full name was Brandon Franklin. Trooper Conklin then confronted Franklin. Franklin initially tried to maintain the fake identity but then admitted that his name was Brandon Franklin. Trooper Conklin then asked for Franklin‘s wallet and searched it but found nothing.21 Thereafter, around 4:33 P.M., Trooper Conklin called in the new identification and waived over a local Nacogdoches police car for backup. He briefed the local police officers on the situation, and remarked to the officer that he was going to try to get consent to search but would search the vehicle anyway because none of the four
After speaking to the local police, Trooper Conklin issued Brigham a written warning for driving too close, which Brigham had to sign. This was at 4:34 P.M. It is unclear from the videotape whether Trooper Conklin returned Brigham‘s driver‘s license and the rental agreement to him, but Trooper Conklin testified at the suppression hearing that he returned the license. There is no testimony about what happened to the rental agreement. The record is clear that Trooper Conklin launched into his consent to search request immediately after Brigham signed the warning citation. At about 4:35 P.M., 21 minutes after making initial contact with Brigham, Trooper Conklin informed Brigham that one of his jobs is to patrol for contraband. He asked for consent to search, which Brigham gave. Trooper Conklin proceeded to pat-down all the car‘s passengers, told Brigham to relax and wait over in the grassy area of the ditch, and told all the other passengers to step over to the grassy area and sit down; he later instructed them not to talk to each other. The local officers kept watch over Brigham and the others while Trooper Conklin searched the passenger compartment and trunk of the vehicle. Trooper Conklin opened a cooler in the trunk and then opened a gallon-sized opaque plastic fruit drink container and saw and smelled what he thought was codeine. The record
II. No Particularized and Objective Basis for Reasonable Suspicion Based on a Totality of the Circumstances.
The majority correctly restates the law that courts may not scrutinize the motives behind otherwise permissible police actions. Whren v. United States, 517 U.S. 806, 811-13 (1996). But in my view, the majority is incorrect in its implied conclusion that it therefore follows that courts may not look at the totality of the circumstances to determine as to what illegal activity there was reasonable suspicion of and eliminate any suspicion that is not supported by the facts, i.e., that is not reasonable.23 The majority insists that Supreme Court precedent supports the propositions that: (1) this Court may hold that there was reasonable suspicion because Trooper Conklin could have believed the car was stolen even though it had not been reported stolen and even though there were no other facts indicating the likelihood it was stolen; and (2) this Court must let Trooper Conklin draw such an inference in support of reasonable suspicion even if such an inference is objectively unreasonable. Proposed Majority Opinion
The majority opinion discounts the objective facts and Trooper Conklin‘s particularized findings, both of which indicate there was no reasonable suspicion the car was stolen and there was no other particularized or objective reasonable suspicion of wrongdoing. The computer check of the car‘s license registration indicated it had not been reported stolen. Further, the record clearly supports the fact that Brigham told Trooper Conklin his mother rented the car; Harris and Brigham were of the ages that they could be a mother and son, respectively; and Brigham‘s address matched the address of Harris on the rental papers. To the extent some of these facts were overlooked by the district court, I would find the district court to have clearly erred. Most importantly, while waiting for the results of the driver‘s license checks to return, Trooper Conklin recorded orally on the videotape a message to himself that: (1) “as to the rental agreement, the subjects were neither 25 years old nor listed on the rental agreement (Harris had rented the car)“; (2) “the subjects seemed nervous (hands were
The majority states that “[t]he panel‘s concern that questioning unrelated to the purpose of a traffic stop may unconstitutionally extend a detention is valid, in abstract terms, but not on the facts of this case.” Proposed Majority Opinion at 19. Not true. Rather, it is the majority‘s concern that the car could have been stolen even though the car was not reported stolen that is valid in the abstract, but not on the facts of this case, where such a conclusion is belied by what occurred in terms of the “clean” computer check, by the stopping officer‘s clear indication of what he had suspicions of, and the lack of a particularized and objective suspicion of any other illegal activity.
Applying the proper standard of review that gives due respect to the officer and his experience but does not provide the officer with a carte blanche to make non-particularized and non-objective inferences, the facts indicate Trooper Conklin had no reasonable suspicion about car theft and could have had no reasonable suspicion of any other particular wrongdoing. He may have had some questions about the contractual rights of Brigham to drive the car — but this of course is not a matter of criminal law. Likewise, Trooper Conklin‘s views on the standing of the occupants to protest
Our Circuit‘s case law holds that “[t]he suspicion required to justify such a detention need not rise to the level of probable cause but must be based on more than an unparticularized suspicion or hunch.” Jones, 234 F.3d at 241 (emphasis added). Further, the detention‘s scope must be strictly tied to the particularized suspicion justifying the detention in the first place. Dortch, 199 F.3d at 199. The majority opinion disregards these requirements and simply concludes that Trooper Conklin had reasonable suspicion but never says of what. As indicated, there was no reasonable suspicion to support the belief the car was stolen and no other facts justifying a continued detention. In ignoring the facts of
The first error is clearly contrary to this Circuit‘s precedent. See Jones, 234 F.3d at 241. Unfortunately, the majority does not address the requirement that reasonable suspicion be of particularized wrongdoing based on objective facts. The second error of the majority opinion is in direct contradiction to what was the well-established rule in this Circuit. See, e.g., id.; Dortch, 199 F.3d at 198-99; see also United States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993) (noting that the detention following a stop must be tailored to its underlying justification and that, once an officer conducts a pat-down search of an individual suspected only of carrying a gun, the officer, upon finding no weapon, may not further detain the person to question him because there is no longer an underlying justification). Dortch and Jones at least stand for the proposition that when an officer has reasonable suspicion of a stolen car, questioning after the completion of a negative computer check unreasonably extends the detention. This proposition implies that a negative computer check can definitively dispel reasonable suspicion of auto theft in the absence of particularized and objective facts that would
Accordingly, under our law prior to the majority‘s opinion, the stop could not be extended beyond the checking of the license and registration.
III. The Logical Application of Traffic Stop Precedent.
The majority indicates that to hold, as the panel opinion did, that the stop was unreasonably extended creates an “absurd” rule of law that somehow requires an officer to immediately obtain the driver‘s license and registration and initiate relevant background checks before questioning. Again, not true. The actual panel holding, not the majority‘s interpretation thereof, was that in the absence of reasonable suspicion an officer could not do an end run around this Circuit‘s case law, i.e., Dortch, Jones, and Santiago, which makes it impermissible to extend the stop after the license and registration checks come back “clean,” by prolonging the detention on the front end by not running the computer check in an effort to develop reasonable suspicion when none existed.25 Inserting an illogical sequence requirement into our law, the majority states that our case law is “about timing and sequence:
Further, in an effort to reach this result the majority takes several leaps over the established law of the Supreme Court and this Circuit concerning traffic stops.
First, the majority insists that Supreme Court case law supports the proposition that there is no constitutional stopwatch on traffic stops. Proposed Majority Opinion at 19. But such a broad statement, misses the mark the Supreme Court clearly established when it instructed courts to “examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” United States v. Sharpe, 470 U.S. 675, 686 (1985). It seems clear to me that the delay and extended questioning in this case was not confirming or
Second, the issues of whether passengers can be questioned, have their licenses checked, or be removed from the vehicle and
IV. Dangers Inherent in the Majority‘s Holding.
The propriety of and motivations behind the somewhat suspect initial stop in this case are not before the Court.27 But in the words of Justice O‘Connor in her dissent in Atwater v. City of Lago Vista, joined by Justices Stevens, Ginsburg, and Breyer, “it is precisely because these [subjective] motivations are beyond our purview that we must vigilantly ensure that officers’ poststop
I predict that the holding in this case will lead to further infringement on the privacy of the traveling public. The majority opinion permits a law officer to make a traffic stop for a minor and innocuous traffic violation and then expand that stop into a full-blown interrogation of the driver and all occupants of the vehicle as to where they are going, where they have been, where they stayed, what they did, whom they talked to, and what events they attended. This results in a fishing expedition to see if the vehicle‘s occupants have engaged in any criminal conduct other than the traffic violation for which the stop was made. The majority opinion permits the officer, during the pendency of the stop, to require the driver and all occupants of the vehicle to vacate the vehicle, be subjected to a pat-down search for weapons, and be required to separate and stay outside of the vehicle at locations specified by the officer separate and apart from each other, all without any conduct on the part of the driver or the occupants that threatens the safety of the officer in any way. Likewise, the
The majority‘s opinion is another step in the direction of judge-developed law that says the end justifies the means; that makes the finding of contraband or drugs the ultimate test of reasonableness; that concludes that if law enforcement officers find drugs the search was a priori reasonable. I have previously expressed my concern about this process of diluting the protections of the Fourth Amendment by giving too broad an interpretation to what constitutes “reasonable police actions.” See United States v. Gould, 364 F.3d 578, 605 (5th Cir. 2004)
I respectfully dissent.
Notes
The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible. The reasonableness requirement of the Fourth Amendment requires no less when the police action is a seizure permitted on less than probable cause because of legitimate law enforcement interests. The scope of the detention must be carefully tailored to its underlying justifications.
The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer‘s suspicion in a short period of time.
Id. at 500 (citations and internal quotation marks omitted). Although this case was decided by only a plurality of the Justices, there is no indication the plurality resulted because of the discussion of general principles that relate to this case. In fact, in his concurrence, Justice Brennan explained, “I interpret the plurality‘s requirement that the investigative methods employed pursuant to a Terry stop be ‘the least intrusive means reasonably available to verify or dispel the officer‘s suspicion in a short period of time,’ to mean that the availability of a less intrusive means may make an otherwise reasonable stop unreasonable.” Id. at 511 n.* (Brennan, J., concurring in the result) (internal citation omitted).