United States v. Dennis Dayton Holt

trict decision and REMAND this court’s proceedings further consistent

case for opinion. this America,

UNITED STATES

Plaintiff-Appellant, Dayton HOLT,

Dennis Defendant-

Appellee.

No. 99-7150. of Appeals,

United States Court

Tenth Circuit.

Sept. Friedman, Section, A. Appellate Richard this court concludes that analytical Division, Justice, Department of Ohio, Criminal framework set forth in Terry v. (Bruce DC, Green, Washington, Attorney, and D. Michael Little- (1968), applies to traffic stops, and that field, Attorney, Assistant United States Terry requires analysis an of both the brief) Plaintiff-Appel-

with him on the for scope and duration of a to determine lant. whether stop comports with the Abel, Fourth Amendment.

Michael A. Assistant Federal Pub- contrast to the Defender, Knorr, lic (Stephen original however, J. Federal panel opinion, a majority Defender, brief), Public with him on the of this court concludes that an officer con- Tulsa, OMahoma, Defendant-Appellee. ducting stop may a traffic ask the driver presence about the weapons of loaded TACHA, Judge, Before Chief and the absence of particularized suspicion of SEYMOUR, EBEL, KELLY, BRORBY, the existence of such firearms. HENRY, BRISCOE, LUCERO, and MURPHY, Judges. Circuit result, As a panel we VACATE the opin- ion, REVERSE the district sup- court’s EN ON REHEARING BANC pression orders and REMAND the case to *

PER CURIAM the district court for further proceedings, consistent with I and II Judge Parts of panel After a divided affirmed the dis (subject opinion Ebel’s to the caveat con- suppression trict court’s of evidence ob concurrence) in Judge Henry’s tained and during tained a search of the defendant’s I II Judge Parts and of Briscoe’s opinion. car traffic stop, incident to a see United Holt, States v. 229 F.3d 931 Cir.

2000), granted rehearing this court en EBEL, Judge.** Circuit (1) following questions: banc on the granted rehearing We en banc in this whether the Fourth Amendment con case to scope permissible delineate the of duration, scope, strains as well as the questioning during a routine traffic (2) stop, of a traffic and whether an officer We hold that the officer’s conducting stop may a traffic ask the driv weapon existence of a loaded weapons er about the in the justified grounds vehicle was on the absence of reasonable safety. During driver is and a routine traffic dangerous. armed Consis panel opinion, majority stop, tent with the the stopped ask mo- * Judge opinion repre- opinion. Judge Kelly Parts I and II of Ebel’s Briscoe's has filed a opinion sent the en banc of this court with the separate opinion joining Judge opin- Ebel's exception Judge Henry’s of a caveat noted in Lucero, Judge joined by Judge Seymour, ion. Judge Parts I and concurrence. II of Bris- separate opinion Judge joining has filed a opinion represent opin- coe’s also the en banc opinion. Judge Murphy Briscoe’s has filed a Judge of this court. ion Part III of Ebel’s separate opinion Judge opin- joining Briscoe’s opinion represents opinion of Chief ion. Ebel, Judge Judges Brorby, Tacha and and ** opinion joined Parts I and II of this Kelly. Judge Parts III and IV of Briscoe’s Judge Judges Kelly Brorby, Chief and Tacha opinion represent only opinion Judges Briscoe, Lucero, Henry (subject Judge to a caveat Seymour, noted in Murphy. concurrence). Henry's Judge I and II Henry separate Parts has filed concurrence represent joining Judge opinion majority opinion Parts I and II of Ebel’s en banc court, Judge Henry’s Judge subject with a caveat and Parts I and II of caveat. license, why he was not Tucker asked Holt is a loaded firearm

torist whether there that he wearing a Holt stated seatbelt. particular- absence of the car even his pointed in the area and toward lived of such a suspicion of the existence ized thereafter, officers point house. At some objective safety risks to offi- firearm. The in- police department from the Muldrow general stops routine traffic cers person Tucker that Holt formed approve have led courts seeking. Tucker asked Holt to they were safety, including steps to insure officer road, to the side of the exit his pull over asking passengers driver and vehicle, patrol car. join Tucker exit the vehicle and con- stopped car to history checks. ducting car, routine criminal got patrol into the Tuck- After Holt justify limited safety risks also These driver’s license and er asked for Holt’s presence of loaded questions about warning to write a for the seat- proceeded suppres- so, weapons. we reverse Tucker doing belt violation. While in given anything as to the if was sion of the answer asked Holt “there know weapon [that Tucker] the vehicle and vehicle should [Holt’s] of a loaded weapons.” such as loaded Accord- proceedings. about remand for further Tucker, a ing to he asks that “on there was a stops.” lot of Holt stated [his] BACKGROUND1 pistol passenger behind the seat of 15, 1999, evening September of On the vehicle. Holt did not indicate whether his Muldrow, po- officers from the Oklahoma carry gun permit he had a a loaded accompanied by Damon department, lice (Oklahoma requires person carrying a law Tucker, Highway Patrol offi- an Oklahoma weapon immediately a to dis- permitted cer, a driver’s license check- established officer), stopped by that fact when close point city on Treat Road within the limits pos- and Tucker did not ask whether Holt impetus of Muldrow. The admitted permit. Tucker then asked sessed such establishing checkpoint at this location anything Holt if “there was else that was the officers’ that the defen- about in the vehi- should know [Tucker] Holt, area, dant, Dennis who lived stated, you Holt “I know what are cle.” transporting illegal drugs along Treat “I referring any- to” but don’t use them Road.2 questioning by further Upon more.” checkpoint, stopped the officers Tucker, At the previ- Holt indicated he had along traveling all Treat Road and vehicles in- ously drugs, used “hadn’t been but approxi- checked all drivers’ licenses. At year them in or so.” volved with mately p.m., Tucker observed a Ford point, 10:30 Holt for con- At Tucker asked Ranger approach checkpoint. agreed. truck sent to search his vehicle. Holt truck, Tucker noted that the driver of the The district court found that Tucker had Holt, wearing yet warning was not a seat- issued the to Holt for the defendant point, violation at that and it is asking belt. After to see Holt’s driver’s seatbelt Many Supreme Court the United States after of the details of this traffic of original panel opinion, forth in the ruling set Al- the district court in this case. Holt, (10th Cir.2000). States v. 229 F.3d 931 though challenge Holt asserts an Edmond Brief, Supplemental we do not his believe fully challenge legality 2. Holt did not of sufficiently developed to factual record is note, checkpoint merely below. We with- parties reach the issue. The remain free to conclusions, drawing any City out In- on remand. address Edmond Edmond, dianapolis (2000), was decided drugs that Tucker still had Holt’s undisputed drug-making and various equipment all in an possession outbuilding. driver’s license his questioning. According the above-outlined Holt was on indicted October Tucker, approximately three four on two counts of possession of metham- elapsed between the time he and minutes phetamine with intent to distribute in vio- got patrol Holt into the car and time 841(a), § lation of 21 U.S.C. one count of Holt consented to search his vehicle. manufacturing methamphetamine in viola- 841(a), § tion of 21 U.S.C. and one got Tucker and Holt then out count possession firearm patrol Tucker if connection with again car and asked Holt drug trafficking offense violation of 18 anything there was else in the vehicle. 924(c). § U.S.C. Holt moved to suppress that the was all Tuck- responded gun responses to Tucker’s proceeded er would find. Tucker the evidence seized from his vehicle. search the cab the truck and found loaded pistol passenger behind the seat. evidentiary district court held an officers, One when of Muldrow hearing on the motion which both Tuck- given that Holt informed Tucker had er Holt testified. The district court searched, consent to have his be- vehicle subsequently grant- issued written order gan looking through camper the shell on ing the suppress. Shortly motion to there- the of During back the truck. the course after, supplemental Holt filed a motion search, of bag his this officer found a small suppress the evidence seized from resi- his matches, containing spoons, syringes, loose dence. That was granted by motion the and two small of white baggies powdery pursuant government’s district court to the upon discovery substance. Based the of concession that evidence the obtained from evidence, this Tucker arrested and suppressed house be if should evidence jail. him transported to the Muldrow car suppressed.3 obtained from the government brings now an interlocu- arrest, after Holt’s

Shortly Tucker con- tory appeal challenging suppression of the attorney tacted an assistant district gun, drug paraphernalia the loaded the Sequoyah County the regarding possibility residence, in the car found and the and obtaining of a search warrant for Holt’s acknowledging pos- Holt’s statements his upon residence based the evidence recov- prior drug gun session and ered from Holt’s vehicle. The assistant use. attorney district concluded the evidence support

was not sufficient to a search war- DISCUSSION did, rant for Holt’s He howev- residence. er, reviewing advise Tucker to utilize “a and In or knock district court talk” In technique. granting suppress, accordance with this we der motion to advice, police accept findings officers went to resi- Holt’s the district court’s factual dence, erroneous, gave clearly and Holt’s mother con- unless we verbal view sent premises. During to search the evidence in the most light favorable search, Caro, glassware findings. officers found chemical those v. 248 United States Cir.2001). (10th 1240, stayed, a room where Holt F.3d re- as well as 1243 We predi- suppressed. Because search of the house was from the search of the car was mother, However, appeal purpose cated on consent Holt’s it is not for the we of this apparent why accept from the record before us concession in necessarily regard. appropriate, from evidence obtained the search If this matter can suppressed explored upon had to be if the evidence obtained remand.

1220 82, 44 No 121 148 L.Ed.2d S.Ct. the ultimate determination view de novo analysis; in this is determinative one factor reasonableness. Id. Fourth Amendment instead, is “measured reasonableness totality PRINCIPLES objective by examining I. GENERAL terms Robinette, 519 U.S. of the circumstances.” protects Amendment The Fourth 39, considering 117 S.Ct. 417. searches from “unreasonable individuals balance, we individual-rights side Const, amend. IV. and seizures.” U.S. expec- the individual’s reasonable consider within the is a ‘seizure’ stop “A traffic liberty. See Romo privacy tations Amendment, even meaning of the Fourth (10th 46 F.3d 1018 Champion, v. is limited though purpose Seslar, Cir.1995); States v. United quite brief.” resulting detention (10th Cir.1993); United Hunnicutt, 135 F.3d States v. United Mesa-Rincon, 911 F.2d States v. (10th Cir.1998) v. (quoting Delaware Cir.1990). (10th Prouse, 648, 653, 99 S.Ct. (1979) (internal quotation consistently applied We have omitted)). Ohio, Terry principles of marks (1968), rou analysis of our under The touchstone See, e.g., stops. tine traffic always the rea- Fourth Amendment Botero-Ospina, all the circumstances sonableness banc). Cir.1995) (en Under per- invasion of a citizen’s particular Ten% de of a search or seizure reasonableness Reasonableness, security. sonal action was pends on the officer’s “whether course, a balance between depends on justified inception, and whether it at its and the individual’s public interest reasonably scope to the was related security free from arbi- right personal justified the interfer circumstances trary interference law officers. 20, place.” in the first 392 U.S. 88 ence Mimms, 106, Pennsylvania v. 434 U.S. Thus, the reason we assess S.Ct. (1977) 330, 108-09, 98 54 L.Ed.2d 331 S.Ct. stop an of a traffic based on ableness curiam) and cita (per (quotation marks by considering the observed violation omitted); Illinois v. McAr tions see also balancing scope of the officer’s actions 946, 950, thur, 326, 121 S.Ct. 148 531 U.S. legitimate expectation of the motorist’s (“[W]e (2001) pri L.Ed.2d balance the 838 against government’s law-en privacy vacy-related and law enforcement-related interests. forcement-related if the concerns to determine intrusion Class, reasonable.”); example, stopped for a traffic v. 475 U.S. For when New York 106, 960, violation, “to 116, expects spend a motorist 106 89 L.Ed.2d 81 S.Ct. (1986) answering questions time period need to search or short (balancing “the waiting while the officer checks his against seize the invasion which the search (brackets omitted) registration.” Berkemer v. license and or seizure entails” 420, 437,104 3138, 21, McCarty, 468 S.Ct. (quoting Terry, 392 88 S.Ct. U.S. U.S. time, 1868)). L.Ed.2d At the same bright-line disfavor 82 317 generally We context, strong interest government Amendment has rules the Fourth comply with traffic balancing ensuring test. motorists relying instead on this basic States, Robinette, 33, 39, 517 117 laws. See Whren United See Ohio v. 519 U.S. 1769, (1996); 135 L.Ed.2d 417, 116 S.Ct. United (1996) 1270, (noting prob- 1274 the “usual rule that Broomfield, States v. 201 F.3d 89 (10th denied, 830, law Cir.2000), cause to believe the has been cert. 531 U.S. able

1221 Guzman, (10th 1512, private interest 864 broken ‘outbalances’ F.2d 1519 Cir. contact”). Thus, 1988), avoiding police it is be grounds overruled on other Bote- yond dispute may ques that an officer ask ro-Ospina, 71 F.3d delay at 785. Further stop. to the for the relating tions reason justified only if the officer has reason Ordinarily, this also includes re illegal activity able or if the See, lating plans. to the motorist’s travel encounter has become consensual. Hun West, e.g., United States v. 219 F.3d nicutt, 135 F.3d at 1349. (10th Cir.2000); v. Riv United States (10th era, Cir.1989); F.2d QUESTIONS II. ABOUT Hill, United States v. 195 F.3d LOADED WEAPONS denied, Cir.1999), cert. As with questions about the ob (2000); authority served violation and the driver’s $404,905.00, 182 F.3d United States vehicle, to operate the expects motorist (8th Cir.1999). plans typically Travel an officer to take reasonable measures to purpose stop are related to the protect officer safety during the stop. traveling because the motorist at the When these measures are not too intru time of the For a motor example, sive, strong interest history plans may ist’s travel and travel safety outweighs officer the motorist’s in context, help explain, put why or into Thus, example, terests. the motorist (if tired) weaving speeding motorist was may be detained for a period short while (if travel). urgency there was an to the background the officer runs a check to see See, Barahona, e.g., States v. United if any outstanding there are warrants or (8th Cir.1993). history pertaining criminal to the motorist It is well also established though purpose even had may ask driver’s authori nothing prior to do with such criminal ty operate the vehicle. we have history. justification for detaining a repeatedly stated a routine motorist to history obtain criminal check traffic stop the officer ask to see a is, See, safety. in part, e.g., registration driver’s license and and check McRae, States v. 1535 n. 6 See, they e.g., are valid. United (10th Cir.1996) I (“Triple checks are run Caro, (10th 1240, v. 1244

States 248 F.3d largely protect Considering the officer. .2001). Cir tragedy many of the officers who are hand, ..., the other during stops On motorists or shot routine traffic dinarily expect to be allowed to continue computer almost simultaneous check of a way purposes on their once the ... person’s criminal record is reasonable Berkemer, intrusive.”); hardly are met. See 468 U.S. United v. Purcell, (11th government’s general 104 S.Ct. 3138. The 236 F.3d 1278 Cir. 2001) (“The investigation, interest in criminal request without for criminal histories more, generally outweigh part computer insufficient to as of a routine check is justified the individual interest in ending safety.”); the deten for officer United Finke, tion. “pro once motorist has States v. 85 F.3d Cir.1996) (“The proof duced a valid license and that he results of criminal histo car, operate entitled to ry he must be check could indicate whether further proceed allowed to way, back-up safety precautions on his without or other were being subject delay by police necessary.”). By determining to further for whether a questioning.” additional United States v. a criminal record or detained motorist has they required are because warrants, weapons, will be cealed an officer outstanding fact. It would to disclose that the detained law apprized of whether better activity society in violent little sense for Oklahoma might engage make motorist reasonable stop. recognize during the nevertheless who ille expectations of those privacy may order the An officer also weapons in not concealed gally possess the vehicle out of passengers driver and Holt therefore revealing that information. safety, even in the interest of officer (that is, no expectation had no reasonable any suspi particularized of the absence society would expectation Oklahoma danger. Maryland, v. personal cion of reasonable) keeping pri recognize as 408, 415, Wilson, 117 S.Ct. 519 U.S. a loaded carrying he was vate the fact (1997); Pennsylvania v. passenger seat of his weapon behind the Minims, 106, 111, 98 S.Ct. U.S. United States Villa-Cha vehicle. Cf. a motorist While 54 L.Ed.2d (10th Cir.1997) (a parro, expectation retains some expectation privacy has no driver stake, safety is at officer privacy when to the Number due Vehicle Identification Iowa, Knowles cf. that it be located in requirement federal (1998) 484, 142 L.Ed.2d 492 view). plain officer safe (rejecting argument field-type during full search ty justifies a individual-privacy-interests While the ex stop), the motorist’s a routine traffic balancing Fourth side of the Amendment necessarily diminished. pectations context, governmen in this is weaker stronger. much tal-interests side is case, In this Holt’s reasonable ex plain found it “too Supreme Court has are even lower pectations privacy interest that the argument” respect weapon. concealed Under to his legitimate is “both law, it is Oklahoma the “inordinate risks con weighty,” given fail or refuse any person unlawful for approaches per an as he fronting person is in identify the fact that the Mimms, automobile.” son seated of a concealed hand- possession actual 98 S.Ct. 330. Other authority to the gun pursuant recognized that en “[l]aw courts have also Act when the Oklahoma Self-Defense literally lives officials risk their forcement any first comes into contact with person they occupied time vehicles approach each during ... law enforcement officer traffic investigative course of ... routine course Stanfield, 109 stops.” States v. 1290.8(C). 21, § tit. Okla. Stat. Ann. (4th Cir.1997); see also that he suppression hearing testified at the McRae, (noting F.3d at n. 6 81 1536 concealed-handgun permit. not have a did many officers who are shot “tragedy of Thus, statutory this obli- he was not under year”). during stops routine traffic each of the gation to volunteer the Maryland Supreme In v. Wilson the gun stopped. The above- when he was alone, 5,7(32offi- that in 1994 Court noted quoted statute nevertheless remains rele- killed assaulted and 11 were cers were determining expecta- vant to stops. 519 during pursuits traffic and U.S. privacy tions of Oklahoma. Oklaho- 413, Bu- (citing at 117 S.Ct. 882 Federal lawfully possess concealed mans who Re- Investigation, reau of Crime weapons expectation privacy have no Uniform Killed ports: Law society recognize would as reasonable Enforcement Officers (1994)). 71, Thirty per- 33 they carrying in the are con- and Assaulted fact that 1223 police shootings cent of occurred when a during stop. course of the Resort to a approached suspect officer a loaded police weapon seated is an increasingly plausible “ automobile, significant option in an and ‘a per- many such escape motorists to consequences, officer, murders of oc- those centage officers and the when stopping a car making curs when the officers are traffic on a routine stop, traffic ” Mimms, 110, never knows in stops.’ 434 advance which U.S. 98 S.Ct. motorists Robinson, option by have that possession virtue of (quoting 330 United States v. weapon loaded in the 414 car. U.S. 38 (1973)). 427 The most recent data reveal case, balancing interests in this 1999, 6,048 that in officers were assaulted we guided by other situations in which during pursuits traffic and stops and federal courts have allowed considerations were killed. See Federal Bureau of Inves- safety of officer outweigh to fairly intru- tigation, Reports: Crime Law Uniform sive during conduct traffic Killed and Assault- during Enforcement Officers a routine traffic stop, an officer ed More than 34% of those may order the driver and passengers out a dangerous weapon assaults involved such vehicle, Mimms, 434 U.S. at gun as a or knife. Id. at 83. Firearms 330; Wilson, S.Ct. 519 U.S. at killings were used to commit the 94 82 of 882; passengers S.Ct. order the to remain of law enforcement during officers vehicle, in the Rogala v. District Colum- pursuits stops 1990s. Id. bia, (D.C.Cir.1998); 161 F.3d open at 34. the door of a vehicle darkly tinted windows to check for weapons, Stanfield, terrifying truth is that officers face 981; 109 F.3d order occupants very being real risk of assaulted with raise their hands during stop, dangerous weapon they each time stop a (3d Moorefield, States v. typically vehicle. The officer has to leave Cir.1997); and use a flashlight to check the vehicle, thereby exposing himself to car, Brown, dark interior of a Texas v. potential assault the motorist. The of- 730, 739-40, approaches ficer the vehicle not knowing (1983) (plurality opinion). L.Ed.2d 502 who the motorist is or what the motorist’s might intentions It precisely during be. In addition to information about loaded an exposed stop such that the have courts weapons may that the officer obtain from willing give been the officers “wide lati- car, visually looking in the shining light tude,” Stanfield, 109 F.3d at to dis- car, around the interior of the or asking may cern the threat pose motorist occupants step the motorist and out of safety. keep the car or to their hands raised'—-all procedures authorized courts An today’s reality officer in has an ob- name of officer also —an jective, reasonable basis to fear for his or obtain information about the existence of a every her life time a motorist is stopped. weapon by simply asking the mo- all, Every traffic stop, after is a confronta- if weapon torist there is a loaded in the tion. The motorist suspend must his or Indeed, vehicle. straightforwardly asking plans her anticipates receiving a fine this is often less intrusive than perhaps jail even a expec- term. That many of procedures authorized our tation becomes even more real when the sister circuits. motorist or a passenger knows there are outstanding arrest or warrants current If a motorist that there is a volunteers car, activity may criminal that be in weapon discovered loaded that will undeni- that information tainly to use permitted be of information important piece ably be safety-related measures. justify prudent greater proceed officer to causing the during oral ar suggested It was caution. Thus, the officer receives any response rehearing that en banc gument helpful will be to this response unlikely to gun is with a loaded motorist more ac- presented the risk appraising this case The facts of that fact. admit al- conclude that curately. We therefore Here, argument. belie presence somewhat about the lowing officers to ask freely ad question, lawfully stopped in a weapons w'hen asked of loaded “le- gun. of a loaded Oth presence promote mitted the will vehicle interest in officer weighty” gitimate similar situations present er cases safety. truthfully volunteered or either defendants weapons. they possessed responded that voluntary response offers a If a motorist Cain,

See, v. e.g., United States presence question regarding ato (7th Cir.1998); v. 840, response could be used gun, the loaded (8th Patterson, Cir. 140 F.3d voluntary admission just like other Maza, 1998); v. 93 F.3d United States If the admis a traffic made (8th Cir.1996); United States the officer can act sion reveals a crime Castellano, Cir. always the case when accordingly, as State, 1974) (en banc); 330 Ark. Burris v. If taking place. of a crime officer is aware (1997); State ques S.W.2d motorist declines to answer Hill, not, however, 577 N.W.2d in the tion, 254 Neb. officer could particularized suspicion, take absence (other reasonable any legal action than the motorist cases where Even those safety) on that personal based actions falsely denies it is within a motorist’s refusal. Because ques- to ask the gun, allowing the officer answer, ordinarily no right to refuse to pertain- clues may provide important tion guilt can be drawn from inference safety. have become skilled ing to Officers any further detention must be refusal and responses nervous or evasive detecting prob supported may gain the officer valuable from which Berkemer, 468 U.S. at cause. able Cf. intentions. clues about a motorist’s (“[T]he 439-40, detainee is 104 S.Ct. 3138 that the may alert the officer even a denial And, unless the obligated respond. not may truthful and thus that denial not be the officer with provide detainee’s answers greater take care. the officer should him, then cause to arrest he must probable (footnotes omitted)); Terry, released.” that the motorist possibility A third J., (White, 88 S.Ct. 1868 That, question. may to answer the decline (“Of course, person concurring) too, conveys information relevant answer, an obligated stopped is Although noth- personal safety. officer’s and refusal to may compelled, not be swers ing compels the motorist to answer such arrest, for an answer furnishes no basis an- question, a motorist declines to when may the officer to although alert it, may draw clues from swer the officer observation.”). need for continued should be that declination that he or she vehicle person- Although and concerned about Holt was not prudent more about loaded safety. al The officer not use when Officer Tucker asked not eviscerate the safe- weapons, as the basis for a more this does refusal to answer search, question. By ordering ty rationale for the but the officer would cer- intrusive patrol during Holt to sit in the car allow officer to order a driver out of the car, “subjective stop, temporarily thoughts Tucker had neutralized notwithstand- ing”). Similarly, posed by weapon availability the risk Holt’s vehi- “search incident to arrest” for officer safe- stop nearing completion, cle. But with the ty depend subjective does not on the mind- reasonably expected Officer Tucker arresting set of the officer. United States about to return to his vehicle and Robinson, U.S. 236 & n. again any once would have access to weap- (1973). S.Ct. 38 L.Ed.2d 427 As the in it. It point ons was at this that Tucker Supreme explained Court has in the con- vehicle, asked weapons about loaded text of the “public safety” exception to safety plain. and the rationale is The Su- warnings, Miranda preme Court has held that the entire inte- availability [T]he public-safety] [the rior of a vehicle is treated as within a exception depend does not upon the mo- motorist’s immediate control and therefore tivation of the individual in- officers falls within scope of a search incident .... volved should [It] not be made to arrest, even after motorist has been depend post on hoc findings sup- at a ordered out placed of the vehicle and un- pression hearing concerning subjec- Belton, der arrest. New York v. 453 U.S. tive motivation of the arresting officers. 454, 462, 101 S.Ct. 69 L.Ed.2d 768 Undoubtedly, police most ... officers (1981). justi- A search incident to arrest is different, would act out of a host of part fied in on safety. the basis of officer instinctive, largely unverifiable mo- Id. 101 S.Ct. 2860. If the interior safety, tives'—'their own safety of the vehicle is relevant safety to officer others, and perhaps as well the desire to Belton, in a case like where the arrestee is incriminating obtain evidence from the vehicle, unlikely to return to the then it is suspect. here, all the more so relevant where the Whatever the motivation of individual motorist is almost certain to return. in such position, officers we do not emphasize We also that the bal believe the doctrinal underpinnings of ance depend does not on whether the offi require Miranda that it applied in all subjectively cer fears motorist.4 Sub rigor its to a situation in jective rarely play intentions a role in reasonably officers ask analysis. Fourth Amendment See Whren prompted by public a concern for the States, 806, 811-13, v. United safety. 135 L.Ed.2d 89 In the Quarles, 649, 655-56, New York v. 467 U.S. context of particular, (foot- (1984) 104 S.Ct. 81 L.Ed.2d 550

Supreme objective Court has relied on an omitted). note That one officer is braver See, view of the e.g., circumstances. Ohio (or foolhardy) another, more than Robinette, therefore not subjectively concerned for (1996) (holding objec safety, his or her should deprive tive circumstances particular a right protect officer of his testimony Holt cites Officer Tucker’s that he that time. Tucker’s statement does not feeling "d[id]n’t remember danger threatened” address whether he feared when Holt car, Holt. We believe this statement have returned to his which is the relevant been question, taken out of context. Tucker was dis- as noted above. record is silent cussing subjective whether he had made a show of au- on the fear in the context car, thority (e.g., touching gun) while Holt was of Holt's return to his own event, but in patrol seated subjective question car. Tucker said he did is not control- ling. not because he had no reason to fear Holt at about, know such as Tucker should vehicle the brave officer safety. Even or her above, this explained minimize the ever- weapons. allowed to As should be loaded killed. being attacked or risk of present justified considerations question was therefore safety. The district court officer in all traffic dangers inherent Given response inter- Holt’s government’s suppressing in we hold that erred stops, outweighs a motorist’s sup- in officer court also est The district question. this pres- being asked about in not interest responses to subse- pressed Holt’s This balance weapons.5 of loaded ence seized and the evidence quent questioning favor even when in tips of the vehicle and during the searches particularized lacks the officer house, officer-safety ra- and the later the weap- possesses that the motorist necessarily extend to does not tionale the officer regardless of whether ons and matters. these other the motorist. Accord- subjectively fears a broader government has asked for suppress- court erred ingly, the district stop, question. during to this rule that a routine response Holt’s ing long as any questions so ask few cases ad surprisingly There or transform they lengthen stop not do jurisdic this other dressing full arrest. United it into a custodial tions, federal circuit cases Cf. but the several Shabazz, 993 F.2d generally seem confronting this issue Cir.1993) (“[Djetention, Maza, questioning, not See, e.g., conclusion. support our (finding “nothing prong im second at 1396-97 the evil at 93 F.3d Tern/’s questioning aimed.”). rule, whether proper” government in an officer’s this Under truck, although with guns were there questioning Tucker’s argues, all of Officer of the constitutional any out discussion or- suppression and the appropriate was issues); May, No. 98- States v. United be reversed their entireties. ders should (D.C.Cir. 3113, 1999 at *3 WL factual record is not suffi- Because the 1999) Nov.8, (“Certainly ... (unpublished) however, I ciently developed present, permits ... the Fourth Amendment I address this issue. would decline to a driver has simply to ask whether prudent it more to vacate would find denied, 1011, 120 gun.”), cert. case panel opinion this portions (2000).6 146 L.Ed.2d and to leave its resolu- discussing the issue a later time after it is tion this case for QUESTIONS RELATED

III. NOT factually. fully developed more SAFETY7 TO OFFICER testimony Tucker’s According to Officer question to Holt Tucker’s first Officer hearing, following suppression in the at the anything there was whether firearms a routine traffic simple question tion about 5. case involves This gun underlying justifi- in vehi- stop of a loaded was "unrelated to during a routine traffic We do not cle cation for the detention.” That case did attempt to address other situa- in this case officer-safety justification for the address an might come out dif- tions where balance however, Lee or question; to the extent course, any questioning ferently. that un- Of precedent conflict with the rule we our other reasonably extends the duration of expressly today, we overrule them. announce sus- justified must be additional articulable picion probable cause. represents only the views of 7.This Part III Ebel, Judge Judges Brorby, Tacha and Chief Lee, 1034, 1039 States v. Kelly. (10th Cir.1996), ques- we found an officer’s place after Holt took admitted he had a Given uncertainties, these I believe we weapon loaded in his vehicle. Tucker could address government’s the broader asked if there anything argument was else he should anas abstract matter. We vehicle, know likely about in the and would not Holt men- need to address the issue if, at all tioned that he drugs anymore. example, not use did Officer Tucker had reasonable questioned suspicion Tucker then Holt to support ques further about his Hunnicutt, tions. See drug history his and 135 F.3d at finally habits and 1349. might It also be unnecessary if search, asked for consent to Holt’s con which sent to search the vehicle was gave. The total untainted conversation was no more any Fourth Amendment violation from the three to four than minutes. drug questions. See United States There are a number of- is- unresolved Walker, Cir.1991). might sues that affect our analysis of this speculate Rather than about the constitu First, questioning. it is somewhat unclear tionality of further questioning in the ab whether Officer Tucker raised the issue of stract, I would remand to the district court drugs or whether Holt topic broached develop an adequate factual record. on his own. Tucker’s second —if That court would also be able to rule on was anything there else he should know any remaining Fourth Amendment issues about in appears on its face vehicle— in the first instance. I would resolve the to be an appropriate follow-up question to broader they issues when are ap framed one weapons about we approved, have propriately and it is necessary so, to do and might justified therefore also be on whether in a appeal later in this case or in grounds of safety. context, In a more appropriate 99-7150, case. No. however, might be seen as fishing for United States Holt information about Holt’s drug unrelated BRISCOE,

activity, likely Judge:1 Circuit had no reasonable re- lationship Second, to officer safety. as- We continue to adhere to the conclusions suming that Holt raised drug issue reached in original panel opinion. himself, it is unclear whether response First, reject we primary created suspicion reasonable of criminal argument en banc and conclude both activity that would itself justify further length scope stop detention Third, and questioning. the rec- relevant factors in deciding whether the does not clearly ord resolve whether the stop comports Fourth Amend- subsequent questioning lengthened the Second, reject ment. we the government’s whether all of it place took while request adopt bright-line allowing rule Officer Tucker preparing warning. an officer conducting traffic stop to ask a Finally, we tell cannot whether ques- driver about the presence of weap- tions drugs, about which did prompt ons absence any incriminatory responses, any ef- had that the driver be armed danger- fect on subsequent course of action— ous. We would suppression reverse the in particular, whether they affected the order of the district court and remand with requests for consent to search the vehicle directions to the court to conduct an evi- and later the house. dentiary hearing to determine whether de- Judge Parts I and II of opinion represent only Briscoe's opinion Judges Sey- represent opinion the en mour, banc Briscoe, Lucero, this court. Murphy. III Judge Parts and IV of opinion Briscoe’s ” Ter- (quoting Id. place.’ in the first ence vehi- search his Holt’s consent

fendant 1868). 392 U.S. at ry, improper officer’s by the tainted cle was clearly satisfied Terry is prong of first weapons. questioning dispute there is no this case because driving seat- without saw Holt Tucker I. the second is on our focus belt. motion granting reviewing an order i.e., whether Terry inquiry, prong court’s district the accept we suppress, the regarding of Holt questioning Tucker’s erroneous, clearly findings unless factual vehicle was in his weapons of novo, view de and of law questions review reasonable.2 favorable most in the light the evidence courts, other of cases from Citing a line v. United See States party. prevailing the Shabazz, 993 v. Cir.2001); notably States (10th United most 1264, 1268 Iiland, 254 F.3d Cir.1993), (5th government the F.2d 431 Caro, 1243 v. States United on based stop a traffic argues Cir.2001). (10th only con- cause, is the length probable government The questioning. on straint II. that, the officer’s inter- long as argues protects Amendment Fourth the unreasonably extend does not rogation searches unreasonable from individuals Amendment Fourth stop, length of Const, IV. amend. and See U.S. seizures. short, govern- In implicated. not is a ‘seizure’ within stop is “A traffic “scope” limi- abandon asks us to ment Amendment, ‘even meaning of Fourth to the dura- Terry and look of tations limited stop purpose of though the In the stop. of the tion quite brief.'” resulting detention and questions asked view, the nature Hunnicutt, 135 Amendment, at the Fourth immaterial Cir.1998) Delaware (quoting change the it long as does least as Prouse, U.S. the seizure of character” “fundamental (1979)). routine Because a L.Ed.2d 660 ar- custodial stop to full Terry from a investi analogous to an more stop is rest.3 arrest, we a custodial than gative detention Shabazz, stopped officers stops under analyzed such routinely have asked officer One speeding. Terry v. vehicle the framework announced vehicle get out of the driver to Ohio, While the license. Hunnicutt, his driver’s produce F.3d at E.g., the li- on computer check ran the rea Terry, determine Under we 1348. a series cense, the driver he asked by con or seizure of a search sonableness whereabouts. his recent questions about asking first inquiry, ducting a “dual a second period, time During same justified action was the officer’s ‘whether to the driv- questions posed similar second ‘whether inception,’ and at its in the vehi- remained companion, who er’s scope to the reasonably related determin- comparing notes After interfer- cle. justified circumstances any viabili- government were to retain 3. If the never Holt was We at the outset that nolo Terry it would ty “scope” limitation to the regarding travel any questions asked ques- that the sense Therefore, only be in the ill-defined whether we do not address plans. as to tioning become intrusive could not so plans are "reason- regarding travel stop. change character the fundamental scope this or ably to the related” ing they given had been stories, conflicting passengers bus by police constituted a sought officers and received consent to “seizure” for purposes of the Fourth search the vehicle. Drugs were found in- (the Amendment Court ultimately deter side the vehicle and both the driver and mined such encounters are consensual and the occupant charged were and convicted “seizures”). thus are not The Court did on drug-related counts. appeal, On they not address the issue posed in Shabazz argued that the officers exceeded the rea- i.e., this case, whether, in the context scope sonable of the original purpose of of a police-citizen nonconsensual encoun when they questioned them about ter, police questioning on matters unrelat their recent whereabouts. The Fifth Cir- ed to the purposes of the initial stop can cuit rejected this argument. In doing so, be so intrusive as to violate the Fourth the court “reject[edj any notion that a Amendment.5 Although the Court has not police officer’s questioning, even on a sub- directly addressed the face, issue we now ject unrelated to the purpose of the stop, is has, it in applying the Terry analysis, rou itself a Fourth Amendment violation.” 993 tinely employed language indicating there F.2d Further, at 436. the court noted that are limitations on both the length of the the questioning at issue “occurred while detention and the manner in which the officers waiting were for the results of (what carried out I refer to here as the the computer check” and thus “did nothing “scope” or detention). “breadth” of the to extend the duration of initial, valid For example, in v. Royer, Florida 460 U.S. seizure.” Id. at 437. sum, the Fifth 491, 500, 1319, 103 S.Ct. Circuit effectively held that questioning by (1983), the emphasized Court that “the officer, an even on matters unrelated to investigative employed methods should be the purpose of itself, the detention does the least intrusive means reasonably not cause a detention to become more to verify available or dispel the officer’s intrusive unless the questioning extends suspicion in a short period time." The the duration of the detention. Court further emphasized it was gov We find the holding unpers Shabazz ernment’s burden to demonstrate that an uasive.4 In reaching conclusion, its investigative detention “was sufficiently Fifth Circuit relied heavily on the Su limited scope (em and duration.” Id. preme Court’s statement phasis added); Florida v. see also Illinois v. McAr Bostick, 429, 501 434, U.S. thur, 2382, 111 S.Ct. 326, 531 U.S. 946, 121 950, 148 115 (1991), L.Ed.2d 389 police (2001) (“[T]he “mere L.Ed.2d 838 restraint at questioning does not constitute a seizure.” issue was tailored need, to that being lim The problem with this statement ited in that it time scope.”) (emphasis added); was by made Court the course of United States v. Sharpe, 675, 690, determining whether random questioning 105 S.Ct. 84 (1985) L.Ed.2d 605 4. The Seventh Circuit recently rejected Sha- curred a nonconsensual encounter be- well, characterizing bazz it as the tween Tucker and Holt. See United States v. refusing circuit decision to acknowledge that Mendez, (10th 118 Cir.1997) F.3d 1430 “when someone ("[T]his circuit has consistently applied at during a stop, routine inquiries traffic falling least bright-line one rule determining [in scope outside the of the detention constitute whether an officer engaged and driver are unlawful Childs, seizure.” United States v. a consensual encounter]: an officer re- must 256 (7th Cir.2001). and n. 1 turn a driver’s documentation before the de- end.”). tention can 5. Because possession Tucker had of Holt’s license, driver's the questioning clearly oc- way”). As we to continue on than longer allowed

(“Even no lasts a stop times, typical traffic many noted for have investigation complete necessary to investiga in character stop resembles may amount made closely more by Terry stop governed than tive stop is more if the arrest illegal E.g., Unit ”) J., arrest. (Marshall, it does a custodial con- than ‘minimally intrusive.’ Botero-Ospina, 71 F.3d Hensley, ed States curring); (en banc). Cir.1995) see no We L.Ed.2d 105 S.Ct. this en depart from reason to (1985) compelling that both (emphasizing if that even holding previous stop are court’s banc “length and intrusiveness” objec stop [is] initial traffic analy- “an officer’s Terry purposes of relevant for observation justified by the officer’s tively sis). violation, ... his investi a minor traffic the Su recognize that We circumscribed will be nevertheless gation suggested dictum has preme Court Botero- scope requirement.” by Terry’s cause probable on stops based were Even if we at 788. Ospina, 71 F.3d Terry. See governed might not be of traffic Terry type for this to abandon n. McCarty, 468 U.S. Berkemer v. apply would still convinced we stop, we are (1984) since, as indicated requirement scope traf (“We that a suggest do not of course Court, Fourth Amend Supreme cause by probable stop supported fic all scope of searches the ment constrains by Fourth set the not exceed the bounds Royer, 460 U.S. E.g., and seizures. Terry scope of on the Amendment 499-500, 103 S.Ct. reject govern the stop.”). We nonetheless reasons, conclude that the these we For to our and would adhere position ment’s reasonableness Amendment Fourth stop be a traffic should rule that settled cause must on stop probable based traffic regardless Terry, analyzed under length of examining both the by judged be probable stop is based on whether the is which it and the manner the detention Factu suspicion. lesser cause or on some gov- the reject We carried out. therefore proba on stops are based ally, most traffic that, Officer assertion because ernment’s States, 517 Whren v. United cause. ble Cf. weapons did questioning Tucker’s 806, 810, 116 S.Ct. U.S. stop the this length extend (“As matter, (1996) deci general Amendment case, no there was Fourth is an automobile stop sion to violation. to probable cause have where has oc a traffic violation believe that III. curred.”). stops lead Rarely do these must address issue we The second however, arrest, arrest even when an rule allow- adopt bright-line whether City by statute. Atwater authorized Cf. traffic conducting a ing an Vista, 318,121 Lago 532 U.S. S.Ct. weap- presence about the ask driver (“[T]he (2001) coun 149 L.Ed.2d 549 that ons, absent reasonable anything like confronting try is not dangerous. For may be armed and driver ar unnecessary minor-offense epidemic of follow, we I believe should the reasons Berkemer, 437, 104 rests.”); 468 U.S. at adopt invitation reject government’s a traffic (noting a rule this case. such to answer some expects stop, motorist citation, of Fourth Amendment “touchstone” receive a perhaps questions and always reasonableness ‘the analysis “is likely most will end he but “that all the circumstances of the particular gov- reasonably Tucker suspected that Holt invasion personal ernmental of a citizen’s may have armed been and dangerous. At ” security.’ Pennsylvania Mimms, 434 no time during the suppression hearing did 106, 108-09, 98 S.Ct. 54 L.Ed.2d testify Tucker that he believed Holt to be (1977) (quoting Terry, 392 U.S. at armed or dangerous, otherwise or that he 1868). “Reasonableness, 88 S.Ct. of was concerned indeed, for his safety; he course, depends ‘on balance between the testified he did not “remember feeling public interest and the individual’s right to threatened” Holt.App. at 44. grant- personal security free from arbitrary in- ing Holt’s motion to suppress, and in re- ” terference law officers.’ Id. (quoting sponse to argument that Brignoni-Ponce, United States v. 422 U.S. Officer justified Tucker was in his inquiry 873, 878, 95 S.Ct. 45 L.Ed.2d 607 about presence of weapons in Holt’s (1975)). Because of fact-specific “the na- vehicle to insure the safety, officer’s ture of the inquiry,” reasonableness district court made the following factual Supreme generally Court has “eschewed findings, none of which the government or bright-line rules” Fourth Amend- majority has established are clearly Robinette, ment context. Ohio v. erroneous: Trooper Tucker did not testify that he had any suspicion that Defendant was armed and dangerous to justify ques- his framework,

Consistent with this officers tion regarding of firearms. conducting stops may “take such Similarly, Trooper Tucker did not steps testify reasonably [are] necessary to pro that he was subjectively in fear of tect their personal safety.” Hensley, 469 apprehension physical harm U.S. at 105 S.Ct. 675. example, “For from Defendant. Objectively, Defen- they may order out of a vehicle both the dant seated in Trooper was Tucker’s driver ... any passengers,” “perform cruiser, OHP at police a traffic check- ‘patdown’ a of a any driver and passengers point, surrounded additional upon reasonable that suspicion they may officers. These circumstances do not dangerous,” armed and “conduct a ‘Ter give any rise to apparent risk of harm to ry patdown’ of the passenger compartment Trooper Tucker or other officer that upon vehicle suspicion reasonable that result, was present. As a this Court occupant dangerous gain safety finds that officer could not and immediate weapon,” control of a and “even did not justify Trooper ques- Tucker’s a full conduct search of the passenger tioning. compartment, including any containers

therein, pursuant to a custodial arrest.” Dist. Ct. Order at 7-8. Iowa, Knowles v. 117-18, Although Tucker’s knowledge limited 484, 142 that Holt a drug was trafficking suspect Applying the reasonableness inquiry perhaps could have afforded him with a case, this “we look first to that side of the suspicion that Holt was armed balance which bears the see, officer’s dangerous, interest or e.g., United States v. in taking Mimms, Brown, action that he did.” Cir.1999) 864-65 434 U.S. at 98 S.Ct. 330. It is impor- (indicating that stopped officer who sus tant to emphasize point at this pect that for traffic violation had reasonable government has attempted never to argue, suspect might that be armed and and indeed cannot argue, that due, dangerous Officer in part, to officer’s knowl- and, that “[f]earing jacket” sports suspect’s of the FBI surveillance

edge of ... frisked weapon, [the a might be bulge large-scale part of a possible as a vehicle a waistband in his and discovered driver] indicate not did Tucker drug operation), revolver.” .38-caliber [loaded] case, is no other and there was the this Pennsyl- Although the 107, 98 S.Ct. 330. such allow us reach would that evidence it was that concluded Supreme Court vania during the actions Tucker’s a conclusion. offi- for the impermissible constitutionally the conclusion with consistent also vehicle, the driver out to order cer safety a threat. represent not did that Holt De- held otherwise. Supreme Court attempt not did example, Tucker For no had “the officer fact that spite the him out of ordered Holt he when pat down ... from the play foul suspect reason Further, indi- evidence his vehicle. Court stop,” the time of the at the driver car patrol in the placed cates Tucker nonetheless the officer that concluded practice routine was his that because Id. safety risks. specific two faced that routine (although detainees male First, emphasized the Court S.Ct. 330. originated out may have practice an officer confronting risk “the inordinate that on concerns, no evidence there was in an seated person a approaches he as consent seeking Holt’s Finally, point). Second, noted Court Id. automobile.” Tuck- vehicle, appears it to search injury of accidental potential “hazard weap- locating interested er was standing an officer traffic to passing from rather safety purposes, but on Id. at vehicle.” of [a] driver’s side on the had vio- determining if Holt interested ultimately The Court S.Ct. 330. App. at law. state lated Oklahoma out- safety risks these concluded (Tucker interested he was testified “de min- as the what described weighed it to “make sure weapon checking liberty caused personal intrusion on imis” viola- [wa]s there loaded or that [wa]s get out asking the driver by the officer to “issue tion,” allowing him thereby his vehicle. Id. custody”). subject into or take the citation Wilson, trooper Maryland state In gov- suspicion, the of reasonable lieu over being driven an automobile observed an offi- recognize us to asks ernment regu- limit and without speed posted he dangers each time significant cer faces pursued tag. trooper lar license In other conducts she so, and, passen- two he observed did car an adopt us to asks words, government the vehicle, “turned both of in the whom gers by the one to the followed approach similar times, repeatedly at him several to look Wilson, in Mimms and Court Supreme reap- then sight level and ducking below willing to was Court which the two eases at pearing.” traf- governing rules bright-line announce driv- finally stopped, the When the vehicle fic stops. halfway. trooper met the got out and er rou- Mimms, trembling appeared on police officers and In two driver was “The nervous, pro- driving nonetheless an individual but extremely patrol tine observed license.” license driver’s expired valid Connecticut with an a an duced automobile driver to the instructed the trooper for stopping the vehicle The After Id. plate. rental the citation, the and retrieve to the car one issuing return purpose complied. documents, the car driver out of the and driver ordered the officers driver’s sitting in the li- the driver his While him to driver’s produce and asked the papers, the rental looking so, officer did the seat the driver cense. When passenger, front-seat the trooper ordered [the driver’s] under large bulge “noticed sweating who “was and also appeared ex- “hazard of injury accidental passing from nervous,” tremely Id. at out of the car. traffic to an officer standing on the driver’s 410-11, 117 882. When passen- vehicle”). the side of [a Thus, detained] car, ger got out of quantity the of crack considering the reasonableness specific cocaine ground, fell to the and passen- the conduct we must focus sharply on ger charged was arrested and posses- with context in which the conduct occurred sion with in order intent to identify particular risk(s) distribute. Prior to trial, posed passenger suppress safety. moved to officer evidence, arguing that it was constitution- Here, Wilson, unlike Mimms and we ally impermissible for the to order trooper are not dealing the beginning stages him out of the vehicle. Maryland Therefore, of a traffic we are not agreed courts suppressed and the evi- confronted with “the inordinate risk[s]” Court, however, dence. The Supreme re- that exist when an officer approaches a versed, concluding that “the rule of “person seated in an automobile,” or with Mimms applies to passengers as well as to the “hazard of accidental injury pass- from Id. drivers.” 117 S.Ct. 882. In ing traffic to an officer standing on the so, doing the Court noted that the same driver’s side of stopped] [a vehicle.”6 dangers exist when officer approaches a Mimms, 110-11, 434 U.S. at 98 S.Ct. 330. vehicle, stopped “regardless of whether Our focus instead must be on the risks occupant of the stopped car is a driver that Officer Tucker faced when posed he Id. Although the Court passenger.” his question i.e., about loaded weapons, acknowledged that danger “the of the offi- Holt sat the squad car while Tucker cer’s standing in path oncoming finished writing warning for Holt’s seat- traffic would present not be except in the belt violation. Viewed more generically, case of a passenger seat,” in the left rear it we must determine what types of risks emphasized of “more near exist the conclusion of a routine traf- than one occupant of the vehicle increases stop, fic those including when a exist possible sources of harm to the offi- driver is allowed to return to car his cer.” Id. leave the scene. view, my Mimms and Wilson do not point, is, On this put evidence readily translate as to the circumstances of generously, quite meager. It is uncontro- this government case as the suggests. To verted that Officer Tucker never broached begin with, it beyond obvious subject testimony during the weight relative interest suppression hearing, and government safety vary will depending upon partic- never submitted other evidence on this ular circumstances of E.g., each case. point to the district court. we are Knowles, 119 S.Ct. 484 left with citations to (“The threat to issuing from Wilson, Mimms gen- handful a traffic citation ... good is a deal less eral crime independently statistics uncov- than in arrest.”); the of a case custodial majority. ered the Although the ma- Mimms, 110-11, 434 U.S. at 98 S.Ct. 330 jority willing is to great weight afford to (recognizing “the inordinate confront- statistics, risk its I unwilling am to do the ing an approaches he person as a In stance, same. taking this I acknowl- automobile,” in seated an edge as as the well that the Supreme Court relied on 6. The fact is considerably that Officer Tucker out of truck and into vehicle. Tucker’s Mimms, neutralized any ordering such risks Holt See 434 U.S. at 98 S.Ct. 330. Act” when Self-Defense of the Oklahoma and in Mimms statistics crime

general a law enforce- with into contact they come more un- is much reliance That Wilson. Okla. stop, however, during a traffic view, since ment officer my in derstandable 1290.8(C), majority 21, § the assessing the Ann. tit. those cases was Stat. the Court ex- reasonable of a “had no outset near the suggests at or that exist risks the fact private occu- keeping ... the driver of pectation when stop, and/or weapon carrying in their vehicle a are still that he was pants unknown. stop remains of his vehicle.” of the seat passenger outcome behind the analysis this Although 1222. Maj. Op. at evidence, I am real lack of Given the convenient, wheth- I quick and safety risks that the to conclude inclined no majority cites correct. it is er traf- of a routine conclusion existing at the my proposition, its support of arrest) cases in an (i.e., ending one not fic Supreme Court of relevant review own begin- than at the lower significantly are majority’s position suggests cases this conclu- I draw a of such ning Minnesota generally See unprecedented. statement sion, from the Court’s part, 83, 110, 119 S.Ct. Carter, 525 U.S. a violent v. possibility “that Wilson J., (1998) (Ginsburg, dis- ordinary 142 L.Ed.2d from stems encounter activity (“If of the speed- illegality senting) for stopped motorist reaction evi- unconsti- fact that an otherwise violation, from the made ing but constitutional be might search, Amendment crime Fourth serious such dence of more tutional only, innocent stop.” for the reserved protection, uncovered here, If, a traffic as regulating little force have would the mere issu- with innocent or the to end stop is about toward either behavior (or no warning majority’s analysis were of a ticket If ance guilty.”). action), I then submit con- correct, official a similar why wouldn’t then low, will be less the driver since a driver’s regarding risks reached clusion be aof evidence point “that drugs? concerned other illegal possession uncovered.”7 crime be [will] make more serious federal law words, state because Id. of street types possess various illegal it lack driver wouldn’t a drugs, then part to the second

I now turn keeping private expectation of requires us equation, reasonableness drugs such carrying he fact that was that are individual interests identify the Moreover, majority’s his vehicle? asks driver an officer implicated when view, includ- the broader analysis ignores weapons. On this ei- a driver is those situations where ing curiously focuses majority point, that could carrying item lawfully ther defendant interests on the individual generally see weapon, as be perceives brandished Holt, accurately, what or more 1032, 1061, 103 Long, 463 U.S. Michigan v. interests of individual the nonexistent as (1983) (Bren- L.Ed.2d 1201 stat- Citing an Oklahoma Holt. defendant (“An can individual nan, J., dissenting) any person makes it “unlawful ute that that can be many things lawfully possess fact identify the to fail or refuse hammer, or a base- A weapons. used as a con- possession actual [they are] in very effective bat, used authority ball can pursuant handgun cealed reduced, increased, any reasons, than actually rather is conceivable in it 7. For these same questioning safety my potential Officer Tucker's risks. view that weapons and other contraband about loaded or is weapon.”), carrying nothing outweigh that perceive what I to be very the weapon. safety could be as a minimal used risks that exist at or near the conclusion of a routine traffic stop. Although admittedly it difficult to reject I government’s proposed quantify precise individual interests at bright-line because, view, in my rule it is issue, Supreme precedent strongly Court inconsistent with the Fourth Amendment. suggests that driver retains rea- some Because the majority reaches a different expectations privacy sonable of and secu- conclusion and agrees adopt pro- rity contents, regarding his vehicle and its posed bright-line rule, I find it necessary even when those contents are illegal. to highlight Iwhat believe are some addi- Long, for example, Supreme Court tional in flaws the rule. Aside from the it permissible held for a law enforcement fact that the rule in flies the face of the “Terry patdown” officer to conduct a of Supreme general Court’s distaste passenger compartment of a if vehicle bright-line rules the Fourth Amendment suspicion officer had reasonable context, it is unprecedented in its breadth. dangerous driver was gain might In virtually every case in which the Su- immediate control of weapon. preme Court has willing been to announce at Although S.Ct. 3469. a bright-line rule governing routine traffic Court did not length discuss at the indi- stops, it has been careful closely tailor vidual interests implicated by such pat- the new rule to match the facts before it. downs, it can be inferred from the rea- Wilson, See at U.S. 117 S.Ct. 882 suspicion sonable requirement (authorizing officer to order passengers driver of possesses a vehicle some residu- vehicle); out Belton, of New York v. privacy al interests com- interior 69 L.Ed.2d partment lawfully vehicle, stopped (1981) full (authorizing search pas- well as in the contents of that compart- senger compartment pursuant to a custodi- (even ment if those contents include arrest); Mimms, al 434 U.S. at weapons). words, In other if a driver S.Ct. 330 (authorizing officer to order driv- possesses no such residual inter- privacy vehicle). Here, er out contrast, ests, presumably the Court would rule has a minimal connection to the imposed have re- us, facts before and is so broad that quirement, and would instead have al- apparently any applies stage of a rou- patdowns lowed such as a matter of breadth, tine traffic stop. Despite its I am course in stops.8 all traffic not convinced that the rule will do much to Balancing parts the two equation reduce the risks faced officers against other, each I conclude conducting stops. routine traffic As it now individual privacy implicated by stands, interests precedent existing affords officers proposed bright-line rule a number of “protect measures to them- 8. The Supreme recogniz narcotics, Court is not alone in "are most often used to conceal ing that a driver in a routine traffic weapons, large amounts of cash.” Id. at retains privacy. some measure of individual reaching weAs noted this conclu- This court has likewise held that a driver sion, person's expectation if privacy expectation privacy retains an or her his all, protected automobile "is to be there vehicle Soto, its contents. United Stales appears to be no reason to treat searches of 1993). Cir. compartments secret within the vehicle on Indeed, expectation have held we that this glove different basis than searches of the privacy compartments extends to secret with compartment or trunk.” Id. vehicle, though in a compartments even such

1236 in fact under the voluntary Knowles, was at search 525 U.S. danger.” from selves United course, totality of the circumstances.” of As a matter 117, 484. 119 S.Ct. (10th Fernandez, 874, 881 18 F.3d a a from v. remove driver States can an officer Gregory, Cir.1994); v. reasonably suspects States United If officer vehicle. an cf. Cir.1996) (10th (noting he dangerous, and armed F.3d may a driver be “pat- given conduct be “voluntary frisk the driver consent can and/or compart- detained”); v. passenger of the States search United person down” who is what, if (10th question Soto, therefore Cir. ment. The 1557-58 F.2d officer rule affords an the any, protection 1993) consent (holding that a defendant’s he does not have where in those situations voluntary was of his vehicle to a search that the driver a reasonable posses officer was though police even danger- may be armed and vehicle stopped registration and defendant’s license of sion (since presumably ous those consent requested officer time the would have to where the situations search). government bears the “The about the driver to questioning resort of con proving of the voluntariness burden conducting simply than weapons, rather when sent, is heavier and that burden passenger com- driver and of the patdown illegal [deten after an given consent majority, According partment). Fernandez, “If F.3d at 881. tion].” truthfully if asked answer drivers will most sufficiently an act of free is not consent weapons. of about taint of purge primary towill view, my assumption in is a dubious This detention, sup ... it must illegal where the driv- situations at least those tree.’” poisonous ‘fruit pressed as against considering using weapon er is Walker, F.2d v. States Moreover, by authorizing the officer. Cir.1991) (10th (quoting United weapons,” “loaded only about Cir.1989)). Maez, virtually protection no rule affords to the determi factors are relevant Three possess- in which driver those situations consent was whether a detainee’s nation ammunition, weapon unloaded and es an proximi temporal will: an act of free “the truthfully “no” can answer since the driver consent, and the illegal detention ty of the although Finally, question. to the officer’s circumstances, and, partic intervening weap- question I that a about loaded agree flagrancy of the ularly, purpose with provide perhaps ons can (cit Id. at 818 officer’s unlawful conduct.” driver, I am concerned about a also clues 603-04, Illinois, 422 U.S. ing Brown can, in some at least question (1975)). Be 95 S.Ct. violence instances, possibility create did not address the district court cause exist. did not where otherwise issue, the case to I remand this would findings on the issue court for district TV. consent. See of Holt’s the voluntariness govern- rejected both Having Walker, the con- I am left with arguments, ment’s Tucker’s clusion Officer HENRY, concurring. Judge, Circuit vio- weapons was unreasonable Judge II of Parts join I I ques- Amendment. lated the Fourth concluding that non- opinion Briscoe’s remains, however, con- whether Holt’s tion con- encounters should “A consensual valid. sent to search nevertheless parameters to be measured a Fourth tinue preceded by Amendment search Ohio, Terry v. if the consent to valid violation remains 1237 (1968) (9th 1991) L.Ed.2d and progeny, 945, 889 which F.2d its 948 Cir. (noting that specifically government weapons, means that unloaded like weapons investigative “instill[ ] must demonstrate that an de- fear in bystanders, and victims creating the risk sufficiently tention “was limited in of violent scope response”); Benson, 69, States v. Royer, duration.” v. 725 F.Supp. Florida 460 (D.Me.1989) 73 1319, (recognizing “that the S.Ct. 75 L.Ed.2d dis (1983) play of added). such a weapon (emphasis [unloaded] instills fear the average citizen and creates a However, join I I Parts and II of danger the unloaded weapon may Judge opinion, Ebel’s with the following evoke a violent response from police or (1) I, In caveats: Part I agree do not others”) (internal quotation marks omit plans of travel are before us and ted). addition, In government as sug I express opinion no thus on whether trav gests, this narrow exception would not run plan questions el are scope within the of all of Fourth afoul Amendment limitations “as (2) stops; traffic I agree with Part II’s long as such questioning does not prolong holding that there exception is a narrow the duration of the stop or alter its funda stops afforded traffic inquire mental character as a Terry-type deten firearms, about the presence of in the in tion.” Govt’s Petition Reh’g En Banc safety. terest I am not con 11; 14, see id. at 88 S.Ct. 1868. vinced that the upon statistical data Finally, and importantly, most we reiter- Part II dispositive, relies is but considered practical implications ate ques- of such Mimms, the context Pennsylvania v. tioning and First, the elicited response: 106, 330, 434 U.S. 98 S.Ct. 54 L.Ed.2d 331 “the detainee is not obligated respond. (1977) Wilson, Maryland v. 519 U.S. And, unless the detainee’s provide answers 882, 137 (1997), S.Ct. L.Ed.2d 41 I probable the officer with cause to arrest persuaded am that a narrow officer-safety him, he must then be released.” Berkem- exception appropriate. Indeed, local v. McCarty, 420, 439-40, er 468 U.S. state law enforcement must make their (1984) (foot- 82 L.Ed.2d 317 own determinations about whether or not omitted). Offi- with his consent. anything to do had suspi- by objectively an ported be- pistol the loaded went to cer Tucker depend not activity illegal does cion seat, at and a id. passenger hind the factor, totality of on the but any one upon in camper, to the looked went circumstances.”). local officer Id. powdery substance. a white and found Jr., KELLY, Judge, Circuit (and read) PAUL must be decided 47. at Cases part. in dissenting in concurring part Here, announc- we are facts. against their in rule search a Fourth Amendment ing in its opinion Judge in Ebel’s I concur facts. emphasize to separately write entirety, but Judge II of Briscoe’s from Part

my dissent LUCERO, whom Judge, with Circuit court’s of the en banc light in opinion in concurring joins, Judge SEYMOUR safety issue. of the officer disposition part. in dissenting part and may ask a an that Having decided in opinion joined Briscoe’s Having Judge is a whether there stopped motorist empha- to entirety, separately I write its even in absence in the car firearm First, Tucker stat- Officer points. size two totally unnec- suspicion, it particularized did hearing that he suppression ed in the to decide court essary for the en banc feeling threatened” “remember only not are constrained Terry stops whether pres- Holt asking about prior Holt duration, in terms of not in terms (Ap- car. Shabazz, weapon in the of a loaded 993 ence v. scope. See 44.) Thus, direct (5th Cir.1993). at pellant’s App. Because 436-37 partic- officer’s have as evidence for additional we case must be remanded interroga- justify the rationale, suspicion to ularized the officer analysis under Had there none. Officer the outer tion that to decide premature at it is best about his safe- expressed concern Tucker questioning these permissible limits of whether review to determine ty, we would circumstances, completely and at worst ad- Terry under was reasonable that There is concern inappropriate. noth- visory and Ohio, record, v. other than about the in the ing (1968), would end that impli- L.Ed.2d firearm, far-ranging support lack of concern the officer’s matter. in Part Given cations contained II. inappropriate safety, I his own think for Moreover, yet establish that no facts law but and create to reach out unrelated to questioning Tucker’s Officer proceedings nature of the en these banc statements or safety resulted essentially dicta. would While sought to be suppressed. evidence Circuit, Second, and the law in this asked it is true that Officer Tucker court, is of the en banc eventual conclusion history, were drug Holt’s by the stan stops governed that traffic about the load- questioning posed after See, e.g., Unit Terry. dards laid down to Holt’s volun- response and in ed firearm Hunnicutt, anymore. ed States drugs teering he did use (10th Cir.1998); Thereafter, United States gave Holt 42-43. Aplt.App. 1059, 1063 Anderson, 114 F.3d Cir. Nothing 43. Id. consent to search.1 search, rejected this district court testimo- he never Although testified that told ny that he had a loaded firearm Officer Tucker incredible. to a did not consent that he the car and 1997). “[W]here [a officer] has rea increasingly emphatic, strident, even son to dealing believe he is terms, not to anticipate an overruling individual,” armed and dangerous the offi Court; decision we are to leave the cer undertake “a reasonable search (citation overruling the Court itself.” for weapons protection for the of the police omitted)). Terry,

officer.” 392 U.S. at 1868. Courts will defer “not to [the offi MURPHY, Judge, Circuit concurring in unparticularized cer’s] inchoate and suspi part and dissenting part. ‘hunch,’ cion or specific but to the reason join I parts I and II of Judge Briscoe’s able inferences which he is entitled to opinion. In particular, fully I agree with draw.” Id. Supreme the Court has Judge Briscoe that analytical the frame- that, explicitly held upon an articulable work set forth in Terry applies to traffic belief the po motorist is stops, even those upon based probable tentially dangerous, police a may officer cause, and that Terry requires an analysis search the compartment interior of the car of both the scope and the that has duration of a stopped. Michigan been Long, to stop 1032, 1049-50, determine whether an 103 officer’s ac- S.Ct. 77 (1983). during tions However, stop comported police a with the Fourth not search Amendment. car traffic stop without such suspicion. Although the issue is not addressed Iowa, 113, 119, Knoiules v. U.S. Judge Briscoe’s en opinion, banc in the panel majority opinion by authored Judge Allowing case, in this and in Briscoe expressed she doubt whether all future cases which partic- there is no questions relating to a detained motorist’s ularized to suspicion, interrogate stopped plans travel were appropriate in light of motorists as to the presence of loaded Terry’s scope requirement. See United weapons is contradictory to the rule laid Holt, (10th States v. 229 F.3d in Teny. down The average American Cir.2000). In her majority opinion for the citizen stopped for speeding while hurry- court, Judge Briscoe has declined to reach to ing drop children off at school will not issue, noting that the issue is impli- not bizarre, find it but more than mini- cated the facts of this case. Neverthe- mally intrusive, to be confronted with less, in portion opinion joined questions weapons. about loaded It seems court, three other members of the en banc we, to extraordinary court, me that as a Judge has suggested Ebel now ques- that are arrogating unto right ourselves the to tions regarding travel plans are always alter clearly Supreme established within the scope of a traffic stop. See precedent Court in Terry, and are thereby (“Travel Opinion Judge Ebel at 1221 eroding the rights constitutional of Ameri- plans typically are related to purpose can citizens. If the jurisprudence of the traffic because the motorist Supreme United States is to Court be traveling stop.”). at the time of the altered, task belongs that to the Court itself. Lines, See Thurston I Although Motor Inc. v. concur in majority’s deci- Rand, Ltd., Jordan K. sion not definitively issue, to decide this I (1983) 75 L.Ed.2d (per compelled feel to offer following obser- curiam); Co., Khan State vations regarding Oil the approach advocated Cir.1996) (“[T]he Supreme Judge opinion. Ebel’s For those rea- Court courts, has told the lower federal cogently sons Judge stated by Ebel in his for basis rea- independent absent ing, that dissent, disagree questions I

panel probable or suspicion articulable to sonable are related plans to travel relating not, how- does scope doctrine stop. See traffic cause. a roadside purpose engaging J., dissenting) ever, from (Ebel, officers prevent Holt, at 942 a detained dialog or which (“When speeding facially for innocuous stopped a car is violation, as reasonably perceive would straightforward motorist of the on being stopped fundamental nature altering to opposed errat- driving falling asleep think it neces- I do not Accordingly, the driver (in would which case ically questions suggest sary fur- how much concerned legitimately invari- are plans travel motorist’s detained travel), it is driver intended ther the stop in purpose ably related concern- explain how difficult proper they are to conclude order occupant plans of travel ing the Terry. under circumstances reasonably related to Judge Bris- join III IV of parts I J., (Ebel, id. stop.”); justified agree I entirety. their opinion coe’s relating (describing questions dissenting) bright-line that Judge Briscoe with to the “wholly unrelated plans as to travel allowing majority law adopted by rule en Ebel’s stop”). Judge purpose routinely ask officials enforcement convincing rationale offers no opinion banc during a weapons of analy- previous of his for the abandonment scope stop is inconsistent with replacement its of this sis Court Supreme set out requirement holding that rule a one-size-fits-all with ensure unnecessary to Terry and invar- plans travel are regarding questions Judge agree with safety. I further stop. of a traffic scope iably within officer would that no Briscoe Furthermore, the fact that light of time safety at feared for have regarding any questions never asked pres- asked Holt about Tucker Officer odd within is an case plans, this his travel weapons. of ence a rule. In such to advocate Kelly, appears Judge words of joined his have who

Judge those Ebel Amend- “a Fourth suggesting

opinion are of Opinion of facts.” rule in search

ment Kelly at 1238. Judge HOMANS, Plaintiff-Appellant, Rick Ebel’s disagree Judge I Although travel regarding suggestion ALBUQUERQUE, a Munici OF CITY purpose of always related to plans are Margie Baca Ar corporation; pal am the view I stop, nonetheless a traffic capacity chuleta, as Clerk in her including questions, facially innocuous City Albuquerque, Defendants- proper plans, relating to travel those Appellees. long as stop as a routine traffic 01-2271. No. the duration they not extend do view, scope require- my Terry’s Appeals, States Court on the a common sense limitation ment Circuit. Tenth pre- It officers. law enforcement power of Sept. funda- from enforcement officials vents law nature of mentally altering inquisition general

converting it into a wrongdo- future present,

about past, notes Similarly, as the majority the interests of ensuring out, points a “refusal to answer furnishes furthered asking presence about arrest, no basis for an although it may firearms. the officer alert to the need for continued restate, view, my To we are declaring Terry, observation.” 392 U.S. at personal a narrow safety exception to the (White, J., S.Ct. 1868 concurring). Any Terry scope and During duration: a valid “continued observation” must tempered stop, officers occupants ask the scope and duration requirements of of the vehicle about of loaded Terry. See INS Delgado 466 U.S. my opinion, firearms. this questioning 216-17, 104 S.Ct. would also extend to ask about pres- (1984) (noting that the' “Fourth Amend- ence unloaded weapons, for the risk of imposes objec- ment some minimal level of response violent to either is similar. See justification tive validate detention McLaughlin States, v. United seizure,” in the of a refusal face (1986) respond). Similarly, the government (affirming lower court’s pe- conclusion that acknowledged during argument, in oral “ gun titioner’s unloaded a ‘dangerous negative face response, any further within the weapon’ meaning of 18 U.S.C. supported by detention must be 2113(d)”); § Boyd, Soto, United States v. 924 suspicion. See United providing Holt’s (“Whether suggests that Cir.1993) this record 1548, 1555 drug use previous sup- information detention investigative such

Case Details

Case Name: United States v. Dennis Dayton Holt

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Sep 5, 2001

Citation: 264 F.3d 1215

Docket Number: 99-7150

Court Abbreviation: 10th Cir.