Lead Opinion
Dеfendant-appellant Reginald Brigham appeals the district court’s denial of his motion to suppress codeine seized during a routine traffic stop from the rental car he was driving. He contends that the investigating officer subjected him to a prolonged detention in violation of his Fourth Amendment rights, which tainted the officer’s subsequent consensual search. Because we agree that Brigham was unlawfully detained, we reverse the district court and remand for entry of judgment of acquittal.
BACKGROUND
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 saw Reginald Brigham driving over a rise in the highway in the outside lane following the vehicle in front of him too closely. Conklin decided to pull over the vehicle, a late model Buick sedan, which contained three young black males, and one young black female.
He approached the car at approximately 4:13 P.M. and asked Brigham to produce his driver’s license and car registration and to step out of the car and move back behind the car to an area in front of the patrol vehicle. Brigham complied and gave Conklin his driver’s license and a copy of the rental agreement for the car.
Conklin testified later that while reviewing the license and rental contract, he immediately noticed that a fifty year old woman had rented the car but was not present. Standing in the ditch in front of the patrol vehicle, Brigham asked what the problem was and Conklin explained that Brigham was following too closely and Conklin thought the passenger in the front seat may not have been wearing a seatbelt. Instead of promptly requesting a computer check on the driver’s license or car’s papers, Conklin began to question Brigham, asking him where he was coming from and the purpose of his travel. Brigham answered that he had been in Houston on pleasure and one of the passengers had visited family in Houston. Conklin continued, asking Brigham which part of Houston they had stayed in and where they had stayed. Brigham answered that he did not know which part of Houston they had stayed in and, after pausing for a moment, answered that they stayed at a La Quinta Inn. Conklin asked which part of Houston the La Quinta was located in, to which Brigham first replied that he was not sure and then said he thought it was the North Highway 59 area. Conklin then asked Brigham whеn he had arrived in Houston; Brigham said Friday. Conklin persisted, asking Brigham to specify what time on Friday he had arrived. Brigham responded that they had arrived Friday morning. After three to four minutes of this questioning, Conklin turned to the rental agreement and asked Brigham who had rented the car. Brigham responded that
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, Conklin testified that he did not notice that (1) the address on Brigham’s driver’s license was the same as the address listed by Harris on the rental agreement, or (2) at 50, Harris was of an age that she could be Brigham’s mother. Conklin also testified that Brigham seemed nervous, that his hands were shaking, and that he tended to answer a question with a question.
Continuing, 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 Franklin who had family in Houston; Franklin was seated in the back seat. Brigham also responded that he had no weapons. This was just after 4:17 P.M. Conklin remarked at the time that he wanted to find out in which part of Houston the friend had family. Conklin approached the car, asked Brandon 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 turned out to be fictitious, identified Franklin as Siracrease Brooks. Conklin began to ask Franklin the same battery of questions that he had asked Brigham. Conklin first asked where they were coming from. Franklin responded that they had been in Houston and had gone to see an Isley Brothers concert. Conklin asked when they went to the concert; Franklin said Friday night. Conklin asked how long they had been in Houston, and Franklin said they had been there a couple of days. Conklin asked what day and time they had arrived. Franklin initially said Friday late afternoon or evening, but then stated that he was not exactly sure of their arrival time. Conklin continued by asking Franklin whether he stayed with friends or family. Franklin said they had stayed at a hotel. Conklin asked which hotel; Franklin said a La Quinta, as had Brigham. Conklin asked how often Franklin went to Houston and whether he knew anyone there. Franklin responded that he did not go there often and that he knew “a couple of girls” in Houston that he had met at a college function. Conklin never specifically questioned Franklin if he had family in Houston.
Between 4:19 and 4:20 P.M., Conklin next approached the vehicle and asked similar questions of the remaining two occupants, Quincy Perry and the young female who had no identification. 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. Conklin asked how long they had been there, and Perry said a couple of days. 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 Conklin indicated that they could not have arrived
Finally, at 4:21 P.M., after almost eight minutes of questioning the driver and the three passengers about matters unrelated to the traffic stop or the rental car, Conk-lin 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 Conklin waited in his patrol vehicle to hear back from his radio contact on the driver’s licenses. While waiting, Conklin recorded orally on the videotape a message to himself that (1) as to the rental agreement, the subjects were not 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 Conklin, (3) all four appeared to lack legal standing as to the vehicle because they were not listed as authorized drivers, and (4) they had conflicting stories about arrival time in Houston and who they had visited there.
At 4:29 P.M., eight minutes after receiving radio contact from Conklin, the dispatcher reported that (1) Perry and Brigham had some criminal activity in their backgrounds, but their licenses were clear and сriminal details were unavailable, and (2) the license Franklin offered was likely fictitious.
Then Conklin emerged from his car, and aggressively asked Brigham what Franklin’s name and age was. After initially not understanding Conklin’s question, Brigham responded that his first name was Brandon, and thought his full name was Brandon Franklin. Conklin then confronted Franklin. Franklin initially tried to maintain the fake identity, but then admitted that his name was Brandon Franklin. Then Conklin asked for Franklin’s wallet and searched it but found nothing. Thereafter, around 4:33 P.M., Conklin called in the new identification and waived over a local Nacogdoches police car for back-up. He briefed the local police officers on the situation, and remarked that he was going to try to get consent to search but would search the vehicle anyway because none of the four had standing to protest.
After speaking to the local police, Conk-lin 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 Conklin returned Brigham’s driver’s license to him, but Conklin testified at the suppression hearing that he returned the license. The record is clear that Conklin launched into his consent to search request immediately after Brigham signеd the warning citation. At about 4:35 P.M., twenty-one minutes after making initial contact with Brigham, Conklin informed Brigham that one of his jobs is to patrol for contraband. He asked for consent to search, which Brigham gave. 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 asked them not to talk to each other. The local officers kept watch over
Brighаm was indicted for possession with intent to distribute codeine, a controlled substance under 21 U.S.C. § 841(a)(1). He filed a motion to suppress the seized evidence, arguing that he had been unlawfully detained in violation of the Fourth Amendment. The district court held a suppression hearing, but denied the motion. Brigham entered a plea agreement and made a plea of guilty, conditioned upon his right to appeal the denial of his motion to suppress, which was approved by the court. He was sentenced to two months’ imprisonment and one year of supervised release. He timely appealed.
DISCUSSION
Standard of Review
When addressing denials of motions to suppress, we review the district court’s factual findings for clear error, and its “ultimate conclusions on Fourth Amendment issues drawn from those facts de novo.” United States v. Santiago,
Standing
This appeal focuses on whether Brigham was unlawfully detained during the traffic stop. Brigham has standing to contest this seizure of his person. United States v. Dortch,
Reasonableness of the Detention
Brigham argues that Conklin’s seven to eight minutes of questioning before beginning a computer check violated his Fourth Amendment rights, because this initial questioning had nothing to do with either the original reason for the stop (following too closely), or any subsequent suspicions about whether the rental car was stolen. Thus, the detention unreasonably extended the duration of the traffic stop, and was not the least intrusive means of resolving concerns about the rental contract. Brigham also contends that Conklin unreasonably detained him after the computer check on his drivers license and the rental car had come back clean and he had signed the warning citation. Brigham argues that the computer check as to the car and his license was finished, and thus his detention beyond that point was unreasonable.
In response, the government argues that Conklin’s questioning was a reasonable and minimally intrusive attempt to ascertain why Brigham was driving a car not rented in his name. The government contends that once Conklin confronted inconsistencies in the stories of the car’s occupants, he had an additional reason to continue the detention. Furthermore, the government argues, the sequence in which Conklin conducted his investigation, questioning first and computer check second, instead of questioning during the computer check, is immaterial because Conklin would have discovered Franklin’s false identification regardless, thereby giving
Our decisions have consistently relied on Terry v. Ohio to establish a two prong test that governs the permissible scope of a traffic stop.
In applying the second prong of Terry, we have consistently recognized that “ ‘an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.’” Id. at 200 (quoting Florida v. Royer,
The primary law enforcement purposes, for making a traffic stop of a moving vehicle on a public highway are: (1) to verify that a violation of the traffic laws has occurred or is occurring and, (2) to provide for the issuance of an appropriate ticket or citation charging such traffic violation or make an arrest of the driver based upon such violation. In furtherance of these purposes, the police officer is authorized to require the driver of the vehicle to produce a valid driver’s license and documentation establishing the ownership of the vehicle and that required public liability insurance coverages are in effect on such vehicle. During the process of such a traffic stop, the police officer making the stop may and should use his senses of sight, smell and hearing to observe any other conduct or activity which might constitute a violation of any other criminal statute, but the officer must be able to articulate the specific facts and circumstances which prompt him to be suspicious of other criminal conduct before he initiates any actions to investigate such other conduct.
On more than one occasion in recent years, we have had the opportunity to evaluate traffic stops in which the ear is rented and the driver is not listed on the rental agreement. From these cases it is clear that any detention beyond the completion of a computer check is unlawful unless there is additional “reasonable suspicion supported by articulable facts that a crime has been or is being committed.” Santiago,
As the government has been quick to highlight, the facts of this case differ from those of Dortch, Jones and Santiago as to the timing of the computer check. In Dortch, two highway patrol officers stopped Cecil Dortch for driving too closely to a tractor trailer.
In Jones, two police officers pulled over Jones and Daniel for speeding.
Finally, in Santiago, the officer pulled over Santiago because he noticed a flashing light in Santiago’s windshield.
Nevertheless, the completion of a computer check is not the exclusive dividing line between constitutional and unconstitutional detention. Ultimately, as the Supreme Court has reiterated, the “scope of the detention must be carefully tailored to its underlying justification.” Royer,
To determine whether questioning is unrelated to the purpose of a stop, we must examine the identifiable reasonable suspicion that justified the detention. An officer may take the time necessary to investigate such reasonable suspicion, but when his questioning extends beyond that reasonable suspicion, and it lengthens the duration of the stop, the detention is unreasonable. The linchpin for analyzing the reasonableness of a detention, therefore, is the scope of reasonable suspicion, i.e., the reasonable suspicion that justified the detention, rather than the completion of a computer check.
Our case law abundantly demonstrates the focus we have placed on the scope of reasonable suspicion in deciding whether a detention was lawful. Dortch, Jones and Santiago emphasized that the circumstances surrounding the respective detentions, in keeping with the totality of the circumstances approach which is applied, permitted only a reasonable suspicion of a
In this case, the justification for the stop, driving too closely, permitted Conklin to require Brigham to show his driver’s license and the car’s papers. Dortch instructs that, upon noticing that Brigham was not authorized to drive the rental vehicle and that the renter of the vehicle was not present, Conklin then had a valid reasonable susрicion about whether the car was stolen.
Conklin’s methodology, questioning unrelated to the traffic violation for eight minutes before commencing the computer check, is merely an impermissible variation on the same Dortch/Jones tune: If a stop is unconstitutionally prolonged by continued questioning after a computer check is complete, then delaying the commencement of the computer check and asking unrelated questions during such delay is equally proscribed. Conklin certainly prolonged the detention, as he could have (and should have) started the computer check before beginning his extensive questioning. The fact that the prolongation is caused by
There is ample evidence that (1) Conk-lin’s initial questioning served drug interdiction purposes rather than the purpose of determining whether the rental car was stolen,
Rather then ask Brigham more about the rental agreement, however, Conklin launched into a series of unrelated questions about the particulars of Brigham’s trip. When Conklin finally did ask who had rented the vehicle, and Brigham responded that it was his mother, it was proper for Conklin to notice, for whatever it is worth, that they did not share the same last name. It was a significant oversight, however, to fail to notice that the addresses of both persons and their age differences corroborated Brigham’s answer. Instead of questioning whether Brighаm’s mother had given him permission to use the car and quizzing Brigham on personal information put down by Harris on the agreement, questions that might have resolved whether Harris was really Brigham’s mother, or simply doing a computer check on his license and on whether the car was reported stolen, Conklin then approached each of the other passengers seriatim and repeatedly posed the same battery of unrelated questions to each of them. Rather than ask the passengers about Brigham, how he had gotten the car, and who Dorothy Harris was, Conklin asked each passenger the same detailed questions about their trip. We cannot perceive how identifying the hotel at which they stayed in Houston was more likely to uncover whether the car was stolen than questioning them about the vehicle’s renter and how Brigham had obtained the car.
Furthermore, our review of the record in this case indicates that the stories of Brigham and his companions were more consistent than inconsistent. All persons Conklin questioned told him they were on a trip for pleasure and were coming back from Houston. In addition, the two individuals Conklin asked about lodging (Brigham and Franklin) told him that the group had stayed at a La Quinta Inn. Third, the
The government argues that the initial period of questioning is immaterial because Conklin also could have begun the computer checks immediately, and questioned the defendant and other passengers while the checks were running. Assuming that Conklin would otherwise have conducted the stop the same way, the government’s argument continues, he would have discovered Franklin’s false identification, giving him adequate reason to extend the detention, and then ask for consent to search the vehicle. In its brief, the government points out that the facts of Jones illustrate a similar pattern of questioning before the computer check, and argues that our lack of criticism of this method in Jones supports its reasonableness here. Our opinion in Jones, however, shows fairly clearly that we found the facts of that case most analogous to Dortch, because both cases involved detention after the completion of a computer check. Based on such similarities with recent precedent, there was simply no need to scrutinize the questioning that occurred before the computer check. Additionally, it is true that a police officer may run a computer check on a driver’s driver’s license and registration or insurance papers. Shabazz,
Nonetheless, even considering Franklin’s fake identification as a factor, the government’s argument misses the whole point. Although it may be true that Conk-lin could have used a method that is less open to criticism, the fact remains that he faded to use the least intrusive means. The Supreme Court has firmly stated that “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
We also recognize that some of our previous cases discussing the reasonableness of a detention focused on the impermissible questioning that occurred tоward the end of a traffic stop. In Shabazz, we noted that “the nature of the questioning during a later portion of the detention may indicate that the justification for the original detention no longer supports its continuation.”
Finally, holding that this type of detention is reasonable likely would put at risk a large segment of the population for reasonable suspicion of drug trafficking and concomitantly the same type of intrusive detention that occurred in this case. In Dortch, we recognized that upholding the officer’s conduct would be tantamount to finding that “officers have reasonable suspicion to suspect drug trafficking anytime someone is driving a rental car that was not rented in his name.”
We do not imply that questions like those asked by Trooper Conklin are themselves off limits to police officers conducting traffic stops. Under other circumstances, such as while awaiting a report from a timely initiated computer check, we have allowed these types of questions in previous cases. Neither do we want to put ourselves in a position that forces us constantly to second-guess the sequence of police questioning. See Dortch,
Validity of Brigham’s Consent
It is well established in this Circuit that “[c]onsent to search may, but does not necessarily, dissipate the taint of a [F]ourth [A]mendment violation.” United States v. Chavez-Villarreal,
Normally, the district court’s conclusion as to the voluntariness of consent is a finding of fact based on a totality of the circumstаnces, which we only review for clear error. Shabazz,
In determining the validity of consent after illegal detention, the second prong focuses on the “causal connection with the constitutional violation” and requires examination of three factors “[t]o determine whether the causal chain was broken.... ” Chavez-Villarreal,
First, there is some evidence that the temporal proximity between the illegal conduct and consent in this case is not as close as it was in Jones and Dortch. Between the intrusive questioning and Brig
Second, as described above there were no intervening circumstances between the detention and the consent such that Brigham would have sensed he could leave. Conklin never informed Brigham that the check on the car and his license had come back clean, he intensified his demeanor as the stop wore on, and the local police arrived as back-up. In short, Brigham was still detained when Conklin requested consent to search the vehicle. In fact, for the entire duration of the stop up until the search, Brigham was away from the rental car and next to the patrol vehicle, while Franklin was in front of the rental ear off into the ditch, and the other passengers were in the car. After asking for consent, Conklin patted down Brigham and instructed Brigham to wait off in an area behind the rental car. Brigham and the other passengers were watched by the local police officers and at one point told not to speak to each other.
Third, the purpose and flagrancy of the initial misconduct is fairly transparent. We have already recognized that even when an officer’s purpose cannot be known, his intentions may be gleaned from the record and videotape. Dortch,
In sum, after evaluating these three factors, we conclude that Brigham’s consent was not an independent act of free will. As a result, his subsequent consent does not cure the Fourth Amendment violation.
CONCLUSION
Having carefully reviewed the record of this case, the parties’ respective briefing and arguments, for the reasons set forth above, we vacate Brigham’s conviction and sentence and remand for entry of a judgment of acquittal.
Notes
. The record in this case contains a videotape of the traffic stop. Although Brigham's responses on the videotape are slightly unclear, there were only one or two instances where Brigham answered a question with a question and both instances it appeared Brigham did not understand Conklin’s question or could not hear the question because of the traffic noise from the busy highway. The videotape does not clearly show nervousness.
. Unfortunately, the videotape conversation between the woman and Perry is not completely clear. But after some confusion, they seem to indicate that they left Thursday night and arrived Friday morning in Houston.
. Although Judge Jones in her dissent suggests that the Dortch, Jones, and Santiago line of cases was incorrectly decided, this Circuit has not agreed with her assessment. In neither Dortch nor Jones was there even a call for a vote to rehear the case en banc. In Santiago the mandate was held and a poll for en banc reconsideration was taken, but a majority of the active judges of this Circuit voted not to rehear the case and on March 20, 2003, a denial of rehearing en banc was issued. Therefore, our reliance on these cases as the law of this Circuit concerning the reasonableness of a traffic stop is not only appropriate but required.
. The factual circumstances of Santiago also may have permitted reasonable suspicion of the abduction of the children that were in the car.
. In our view the “simplest, quickest and least intrusive means” to satisfy an officer's suspicion that a vehicle might be stolen is to immediately run a computer check on the vehicle's license plate to see if it has been reported stolen. If it has, the officer has probable cause to arrest the driver and occupants for possession of a stolen vehicle and to search the vehicle consequent upon such arrest. If the vehicle has not been reported stolen, the officer's suspicions, based on facts like those in this case, can no longer justify extension of the stop to investigate that suspicion.
. We note that at one point on the videotape immediately before he asked Brigham for consent to search, Conklin told Brigham that one of his "jobs is to patrol for contraband.” Likewise, in a conversation which Conklin had with the local police officer on the videotape, he advised that local officer that he was going to "try to get consent to search, but would search anyway because none of the occupants had standing to protest.” A search of a vehicle if you suspect the presence of drugs might makе some sense; a search of a vehicle if you suspect the vehicle is stolen has virtually no likelihood of finding anything relevant.
. Our search of the statutes of the State of Texas failed to turn up any statutory provision which requires a passenger in a vehicle to carry his driver’s license or any other type of identification so long as he is just a passenger. Likewise, we found no statutory provision which would attribute liability to a passenger for a traffic violation committed by the driver, such as "following too close” in this case. We have doubts therefore that the reason for the initial traffic stop (i.e., following too close) in this case gives the trooper any ground for suspicion of criminal conduct on the part of a passenger. If a police officer arrests an individual, that person is required to give his true name, residence address and date of birth to the arresting officer. See Texas Penal Code § 38.02. None of the passengers in the vehicle in this case were arrested at the time of the initial traffic stop.
. This group potentially includes all children who drive a parent's car but have a different last name than that parent, a spouse who drives a car registered to a spouse whose last name he or she does not share, and anyone who borrows a car from a friend.
Dissenting Opinion
dissenting:
I respectfully dissent. Based on their own appellate fact finding, the majority
This is new territory indeed. Dortch and Jones rigidly applied the rule that a prolonged detention after the completion of a traffic stop may be unconstitutional. In both those eases, however, the officers asked vehicle occupants nearly the same series of questions that were posed here, yet this court never criticized the questions. Jones,
So many problems arise from this opinion that one scarcely knows where to start listing them. First, the panel majority is wrong in asserting that Trooper Conklin’s methodology made an “end-run” around Dortch and Jones. The majority opines that Trooper Conklin should have questioned Brigham and his companions while conducting the computer records check, and that “delaying the commencement of the computer check and asking unrelated questions during such delay [are] equally proscribed.” In Jones, the officer questioned the vehicle occupants for seven minutes before initiating a computer check.
Further, the majority’s conclusion contradicts the holding of this court in United States v. Roberson,
instructed McCleod [the driver] to produce her driver’s license, registration, and proof of insurance. McCleod informed him that the car was leased by a third party and produced a copy of the lease agreement. The lease to one Cheryl Allen did not identify McCleod as an authorized driver and the lessee was not among the passengers. Trooper Washington began to suspect that the vehicle might have been stolen. At this point, McCleod volunteered that she was a friend of Allen and that Allen was in St. Louis. McCleod claimed to be returning home after taking her mother to her grandmother’s home in Houston.
Trooper Washington then asked the passengers for identification. Roberson [a passenger] could not produce a driver’s license, but claimed responsibility for the car, stating that Allen had loaned it to him. Roberson told the trooper that*508 Allen was still in Houston and would be returning to St. Louis in another vehicle. His suspicion further aroused, Trooper Washington decided to call Deputy David Deter for backup.
Id. at 1089-90. After Deputy Deter arrived, the officers asked the driver her grandmother’s phone number and address. Id. When the driver was unable to answer, the officers asked for consent to search her car. After receiving consent, the officers discovered 6.99 kilograms of cocaine. The court concluded that such questioning, which appears to be virtually identical to the questioning performed by Trooper Conklin, neither impermissibly prolonged the detention nor vitiated the driver’s consent to search. Id. at 1092-93 (citing United States v. Shabazz,
Not only does the majority’s decision conflict with the prior precedent of this circuit, but it also conflicts, or at least is in tension with, the precedent of at least five other circuits. United States v. Burton,
Second, the majority finds, without citing a shred of record support and without any support from the district court’s findings, that Trooper Conklin’s questions about the Brigham party’s trip were for “drug interdiction purposes.” This de novo fact finding is contrary to two principles: we are bound, absent clear error, by the district court’s findings of fact in suppression cases, and on appeal, we are to review the findings in the light most favorable to the prevailing party, here, the government. Jones,
Trooper Conklin’s detention of Defendants was reasonably related to the circumstances which justified the interference in the first place. Trooper Conklin was entitled to ask Brigham for his license and registration. See Shabazz,993 F.2d at 437 . Upon examining the rental contract and discovering that the only person authorized to drive the vehicle was not in it, it was reasonable for the Trooper to briefly question why Brigham, an unauthorized driver pursuant to the terms of the rental contract, was in the car. Trooper Conklin justifiably became suspicious when Franklin told him Defendants had gone down to Houston for an Isley Brothers concert and that he knew a couple of girls (but made no mention of family in Houston when the Trooper asked him if he knew*509 anyone else in Houston), whereas Brigham had told him that they were visiting Franklin’s family. Defendant Perry’s explanation was inconsistent with both the explanation offered by Brigham and that offered by Franklin. The absence of the authorized driver, the inconsistent explanations as to the trip to Houston, and Franklin’s presentation of a fictitious I.D., taken together, justified Trooper Conklin’s continued detention of Defendants. Accordingly, Defendants’ motions to suppress evidence on the basis that their detention exceeded the reasonable scope of the stop’s original purpose are denied.
The majority, without explanation, discredits thesе findings to which this court should defer.
Even on its own terms, the majority’s finding makes little sense, as the trooper’s line of questioning was obviously germane to investigating Brigham’s right to possess the vehicle and to many other benign or law enforcement-related purposes.
The Fourth Amendment grants an officer conducting a routine traffic stop latitude to check the driver’s identification and vehicle registration, ask the driver to step out of his vehicle and over to the patrol car, inquire into the driver’s destination and purpose for the trip, and “undertake similar questioning of the vehicle’s occupants to verify the information provided by the driver.”
Gregory,
Third, even if drug interdiction was Trooper Conklin’s motivation for asking the questions, his motivation is wholly irrelevant for Fourth Amendment purposes. The majority’s reasoning flies in the face of Whren v. United States, which held that Fourth Amendment activities must be judged in light of the objective facts rather than law enforcement officers’ subjective motives.
Fourth, the majority equates the failure of Trooper Conklin to employ the “least intrusive means” of investigation with unreasonableness for purposes of the Fourth Amendment. There is no doubt that law enforcement officers may both question the occupants of a vehicle which is stopped for reasonable suspicion as well as for engaging in traffic violations, and may perform computer records checks of the vehicle and its occupants. Shabazz,
But it does not fоllow that failing to use the “least intrusive means” of investigation is per se constitutionally unreasonable. In fact, so to hold conflicts with the precedent of this Circuit. This Court has stated that:
The fact that the protection of the public might, in the abstract, have been accom*510 plished by “less intrusive” means does not, by itself render the search unreasonable. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize it or to pursue it.
United States v. Sanders,
Here the entire investigation was directed to the concededly legitimate purpose of enforcing the traffic laws. See Gregory,
Fifth, Brigham does not contest the district court’s finding that he voluntarily consented to a search of the car. Instead, the majority reverses under this court’s now-virtually per se rule that if a traffic stop detention is “unduly prolonged,” there can be no legal consent to search. Neither Brigham nor the majority suggest that the detention was prolonged for the purpose of obtaining consent to search — consent was given six minutes before Trooper Conklin received the transmission from his dispatcher concerning Franklin’s real name. This сase is distinguishable from Dortch, Jones, and Santiago, because in those cases, consent was extracted after the traffic stops had been completed and thus at a time when, without reasonable suspicion, the defendant should have been allowed to depart.
The above errors infect the majority’s opinion even if one assumes that Dortch, Jones, and Santiago properly reflect Fourth Amendment jurisprudence. While those cases are binding law in this circuit, I believe they are too broadly written, and I subscribe to the dissents of Judges Garwood and Emilio Garza in two of those cases.
I suggest that the reasoning of the Seventh Circuit in Childs,
Questions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention. They do not signal or facilitate oppressive police tactics that may burden the public—*511 for all suspects (even the guilty ones) may protect themselves fully by declining to answer. Nor do the questions forcibly invade any privacy interest or extract information without the suspects’ consent.
Childs,
.