United States v. Holt

factors, a continuous such as gravating treatment). discriminatory

pattern America, STATES UNITED Plaintiff-Appellant, AFFIRMED. HOLT, Dayton Defendant-

Dennis Appellee. 99-7150. No. Appeals, States Court Tenth Circuit. 24, Aug. ROBINSON, Plaintiff- F. James

Appellant, Cauwells, COUNTY; Brian

SOLANO Deputy County Offi Sheriff's

Solano County Faulkner,

cer; Gary Solano Officer, Deputy Defendants-

Sheriff's

Appellees. 99-15225.

No. Appeals, Court of Circuit.

Ninth 23, 2000.

Oct. HUG, Judge. Chief

Before:

ORDER nonre- majority

Upon vote court, it judges of this regular

cused active by the case be reheard that this

is ordered 35- to Circuit Rule pursuant

en banc court panel opinion shall three-judge

3. The by or to court precedent cited Circuit, Ninth

any district court the en adopted by

except to the extent court.

banc checkpoint. Section, approach truck Ranger Friedman, Appellate A. Richard truck, the driver of Justice, noted Tucker Division, Department Criminal a seat- Holt, wearing Green, (Bruce defendant D.C. Washington to see Holt’s driver’s asking Little- After belt. D. Michael Attorney, and was not license, why Holt he Attorney, asked Tucker field, Assistant that he Holt stated brief), appellant. for the a seatbelt. wearing on him with his pointed toward area and in the lived Abel, Pub- Federal Assistant A. Michael thereafter, officers point At some house. Knorr, Federal J. (Stephen lic Defender in- police department Muldrow from the brief), Defender, him on Public person Holt was Tucker that formed Oklahoma, appellee. Tulsa, for toHolt Tucker asked seeking. they were join BRISCOE, the road to the side McKAY, pull over EBEL, Before car. patrol in his Tucker Judges. Circuit car, patrol Tuck- into the got Holt After BRISCOE, Judge. Circuit license and driver’s for er asked Holt’s the United appeal, interlocutory In this for the seat- warning to write proceeded or- court’s district challenges so, Tucker doing violation. While belt Holt’s mo- Dennis defendant granting ders anything “there was Holt if asked obtained suppress evidence to tions know should [Tucker] vehicle [Holt’s] a traffic to incident his vehicle a search App. at weapons.” as loaded about such shortly his residence a search Tucker, asks that he According to jur- exercise search. We after the vehicle stops.” Id. Holt [his] “on lot § 3731. U.S.C. to 28 pursuant isdiction pistol behind a loaded there was stated court the district agree with Although Holt did vehicle. of his seat passenger rights Amendment Fourth that Holt’s carry permit had a he whether indicate questioned he was when violated (which under required was gun a loaded vehi- his presence not ask law), Tucker did Oklahoma the dis- directions cle, we reverse permit. possessed such Holt whether evidentiary hear- conduct trict court anything was if “there asked Holt Tucker consent Holt’s whether determine know should [Tucker] else volun- was nevertheless his search stated, “I at 42. Holt Id. the vehicle.” tary. “I to” but referring you know what Upon fur- anymore.” them use don’t I. Tucker, Holt indicated ther September evening but drugs, On used previously had he Muldrow, po- Oklahoma in about with them involved “hadn’t been by Damon accompanied department, lice then asked 43. Tucker Id. at so.” year or offi- Patrol Highway Tucker, an Oklahoma vehicle. to search consent Holt checkpoint Treat cer, established the record unclear from It is agreed. Holt limits of Muldrow. city Road within to Holt warning issued Tucker check- establishing the impetus if point, violation seatbelt for the Holt, suspicion that the officers’ point was li- driver’s Holt’s ever returned Tucker area, transporting was who lived that Tucker undisputed It is to him. cense along Treat Road.1 drugs illegal in his license had Holt’s questioning. the above-outlined stopped checkpoint, the officers At the Tucker, three approximately According Road and along traveling Treat all vehicles the time elapsed between minutes to four approxi- At licenses. drivers’ checked car and patrol got Holt into he and a Ford Tucker observed p.m., mately 10:30 checkpoint. legality challenge does not 1. Holt time Holt to the consented court held an evidentiary hearing on the his vehicle. motion and both Tucker and Holt testified. The district court subsequently issued a Tucker got out of patrol Holt granting written order sup- the motion to car and again Tucker asked Holt if there press. thereafter, Shortly Holt filed a anything else the vehicle. Holt supplemental suppress motion to the evi- responded gun that the was all that Tuck- dence seized from his residence. That mo- er would proceeded find. Tucker granted tion was by the pur- district court and, search the cab of the truck as de- government’s suant to the concession. Holt, scribed found a loaded pistol be- hind the seat. passenger One of the Mul- officers, drow informed II. Tucker that given had Holt consent to In reviewing district court or searched, have his began vehicle looking der granting a motion suppress, we through camper shell on the back of the accept the district court’s factual findings truck. During search, the course of his erroneous, unless clearly and we view the this officer a small bag found containing evidence light most favorable to spoons, syringes, matches, loose and a those findings. Little, United States v. powdery

white substance in separate bags. 708, (10th Cir.1995). We review upon Based discovery evidence, of this de novo the ultimate determination of Tucker arrested Holt and transported him Fourth Amendment reasonableness. to the jail. Muldrow arrest, Shortly after Holt’s Tucker con- The Fourth protects Amendment tacted an assistant district attorney for individuals from unreasonable searches Sequoyah County regarding the possibility Const, and seizures. See U.S. amend. IV. obtaining search warrant for Holt’s “A stop is a ‘seizure’ within the residence based upon the recov- evidence meaning Amendment, of the Fourth ‘even ered from Holt’s vehicle. The assistant though purpose stop is limited district ” attorney concluded the evidence and the resulting quite detention brief.’ was not sufficient support a search war- Hunnicutt, United States 1345, rant for Holt’s did, residence. He howev- (10th Cir.1998) (quoting Delaware v. er, advise Tucker utilize “a knock and Prouse, 648, 653, 1391, 440 U.S. 99 S.Ct. talk” technique. Id. at 48. In accordance (1979)). L.Ed.2d 660 Because a routine advice, police officers went to traffic stop analogous is more to an investi Holt’s residence and Holt’s gave mother gative detention than arrest, a custodial verbal consent to search premises. stops such analyzed under the stan During search, officers found chemical dards announced for investigative deten glassware in a room where Hall stayed, as Ohio, tions in 88 S.Ct. well as drugs and various drug-making (1968). 20 L.Ed.2d 889 See Hunni equipment in an outbuilding. cutt, F.3d at 1348. “To determine the Holt was indicted in federal court on reasonableness of investigative deten 14, 1999, October on two posses- tion, counts of make a dual inquiry, asking first sion of methamphetamine with the intent ‘whether the officer’s justified action was to distribute in violation U.S.C. inception,’ its and second ‘whether it 841(a), § one count of manufacturing was reasonably in scope related to methamphetamine in violation of 21 U.S.C. justified circumstances which the interfer ” 841(a), § count one of a ence place.’ in the first Id. (quoting firearm in connection with a drug traffick- Terry, 1868). 392 U.S. at ing offense in violation Here, of 18 U.S.C. dispute is no that the traffic 924(c). § Holt moved suppress the evi- justified at issue was inception its dence seized from his vehicle. The district because Tucker Holt observed driving Thus, parties process writing focus while Tucker in the a seatbelt. without ques- Tucker’s energies length on whether the citation did not extend the presence regarding of Holt tioning support of the detention. argu its In reasonably re- in his vehicle was ments, relies on United scope to the circumstances lated Shabazz, 993 F.2d 431 Cir. place.2 first justified the interference 1993). Shabazz, stopped One speeding. officer asked Court has indicat get the driver out of vehicle and scope of although permissible ed that produce his driver’s license. While depends on “the investigatory detention officer ran a check li computer on the facts circumstances of each particular cense, he asked the driver series of case,” longer must in case “last no questions recent whereabouts. effectuate the necessary than is period, During same time a second carefully tailored to stop” and “be posed similar to the driv Florida v. underlying justification.” its companion, er’s who remained in vehi Royer, 460 U.S. S.Ct. After notes and comparing cle. determin (1983). Thus, L.Ed.2d 229 “[a]n stories, ing they conflicting had been given run sought and received license, consent on the driver’s computer checks were in Drugs search the vehicle. found papers, and on registration the vehicle the vehicle both the any outstanding the side driver driver has occupant reported charged has been the convicted warrants the vehicle Mendez, 118 drug-related appeal, they United States v. on counts. On stolen.” (10th Cir.1997). 1426, “Howev F.3d 1429 that the rea argued officers exceeded the er, that computer the checks confirm stop’s pur once scope original sonable of the has a valid license and produced the driver pose they questioned them car, the proof operate of entitlement to the rejecting In recent whereabouts. proceed be on his permitted driver must “rejeet[ed] any argument, the court this delay by police for way, without further questioning, that officer’s notion questioning.” Id. additional subject purpose on a unrelated even stop, Fourth of the is Amendment itself government suggests only that Further, violation.” 993 F.2d at 436. is im length investigatory detention questioning noted that the at issue court analysis purposes under the portant waiting “occurred while the officers were Thus, the Terry government framework.3 computer for the results of the check” was for Tucker to argues, it not unlawful nothing thus “did to extend duration Holt contraband in his ve initial, In valid Id. at 437. questioning hicle because this occurred seizure.” home); Botero-Ospina, 71 Although suggested has 2. 783, Terry analysis may applicable (concluding not be 788 viola case since Tucker observed seatbelt stop initial is that even if officer's probable and thus cause to detain tion had by of a "justified the officer’s observation $404,905.00 Holt, see United States v. in U.S. investigation ... his minor traffic violation 643, 1999) Currency, 182 F.3d Cir. Terry's by will circumscribed nevertheless (suggesting, support questiona little requirement”). panel scope This is bound analysis analysis, Terry apply ble does not Meyers, decisions. those See United States probable stop based where on 715, Cir.2000). - -, cause), denied, cert. 1175, (2000), 145 L.Ed.2d 1083 this circuit government’s During argument, oral Terry clearly applied analysis in such "intensity” suggested counsel also Ozbirn, See, e.g., States v. situations. However, questioning may be relevant. 1194, (10th Cir.1999) (apply term, provided explanation counsel no for this analysis in situation where officer govern- found and it is nowhere to be a traffic violation and thus had observed appellate stop briefs. probable cause to defendant's motor ment’s sum, added). the Fifth effectively Circuit held (emphasis opinion, the same officer, by an even on matters emphasized Court further it was the unrelated to the of the detention government’s burden to demonstrate that itself, does not cause detention to be an investigative detention sufficiently “was come question more intrusive unless the (em- in scope limited and duration.” ing extends the duration the detention.4 phasis added); see also United 675, Sharpe, 470 U.S.

We have serious S.Ct. reservations about the (1985) (“Even 84 L.Ed.2d 605 holding Shabazz. In reaching its con- clusion, the Fifth lasts no longer Circuit relied heavily necessary than to complete the Supreme Court’s statement in the investigation Florida the stop was Bostick, 429, 434, 501 U.S. S.Ct. made amount to an illegal arrest if (1991), 115 L.Ed.2d 389 that “mere the stop is more than ‘minimally intru- police questioning does not ”) constitute a (Marshall, J., sive.’ concurring); United problem seizure.” The with this statement Hensley, is that it was made the Court in the (1985) S.Ct. 83 L.Ed.2d 604 (empha- course of determining whether random sizing that both the “length and intrusive- questioning of bus passengers by police ness” a stop are relevant for purposes of constituted a purposes “seizure” for Terry analysis). (the Fourth Amendment Court ultimately if persuaded Even we were that Shabazz determined such encounters are consensu- correct, are bound Tenth Cir- “seizures”). al and are not Thus, cuit precedent. In contrast to the Fifth Court did not address issue faced in Circuit, this court has held that an officer case, i.e., whether, Shabazz and this conducting a routine traffic may not context of a police-citizen nonconsensual ask the unrelated to the encounter, police questioning on matters purpose of the stop, even if the questioning unrelated to purposes of the initial does not extend the normal length of can be so intrusive as to violate the stop, unless the officer Fourth has Amendment.5 reasonable sus- Although the Court picion of illegal activity. has directly not See United addressed the issue States we Jones, face, has, (10th now 44 F.3d applying Terry analysis, (holding routinely questions that employed language regarding sug- trans- gesting portation contraband, there are of limitations on they both the even if occur length and the manner concurrently performance detention. an officer’s example, For in Royer, legitimate the Court of empha- tasks a routine traffic sized that “the investigative stop, justified methods em- only if the officer has ployed should be the least intrusive means suspicion reasonable illegal of activity); reasonably available to verify dispel or Turner, the United 928 F.2d suspicion (10th officer’s in a short period (holding that “if the officer of time.” 460 103 S.Ct. 1319 license, retains the driver’s he or she must Palomino, In United States v. 100 F.3d light that came to the course of the (6th Cir.1996), the Sixth Circuit conclud- detention. ed that an question regarding officer's presence of or contraband ain de- 5. Because Tucker had of Holt's tainee's vehicle acceptable because it oc- license, questioning clearly oc- curred while the issuing officer was the de- curred a nonconsensual encounter be- warning tainee citation and the Mendez, tween Tucker and Holt. See thus “was any not longer detained than the (“[T]his at 1430 consistently ap- circuit has necessary time original for the purpose of the plied bright-line at least one rule [in deter- However, stop.” the value of this case for mining whether an and a driver are purposes our is undercut because the court engaged in a consensual encounter]: an offi- also concluded that the officer had a reason- cer must return a driver's documentation be- suspicion able engaged detainee was end.”). fore the detention can activity criminal upon based several factors that it was analysis, or citation ing, with no articulable reasonable have questions to “ask for officer permissible or drugs about the driver plans” of Walker, identity and travel relating to States weapons”); cf. detainee). event, even assum- Cir.1991) (conclud- any that these argument of purposes a routine conducting ing an officer Terry conducting a scope cases allow reasonable stop exceeded number a limited if there a detainee stop to ask the driver asking detention to the alcohol, sub- unrelated questions controlled weapons, were vehicle); they allow not convinced stop, we are paraphernalia or stances Guzman, by Tuck- posed one as the such questions, Cir.1988) (“Absent Holt, require reasonable detain- which would toer rea- or incriminatory answer legitimate has no given an officer suspicion, ee odometer, he a search directly lead to a car’s check would which son Indeed, the cases the district what not conduct vehicle. certainly may the detainee’s question- have cited above ‘intrusive we this circuit court described weap- Unit- grounds, other ”), questions ing.’ clearly overruled indicate Botero-Ospina, precipitated must or contraband ed ons Cir.1995). suspicion. reading our dissent argument, In a fall-back Citing three cases law. Circuit Tenth rule, based bright-line adopt us to asks routine traffic conducting promoting concerns public policy upon to ask detainees permitted stops an officer allow that would argues the dissent plans, travel always a routine ques- effectively approved court carrying whether he driver wholly unrelated topics tioning “on reasons car. For the weapons in Dissenting Op. stop. purpose of’ conten- follow, government’s reject the we acknowledge Although we at 942. subjectively either Tucker was tion dissent, we are by the cases cited presented concerns safety motivated conclusion. our they undercut convinced objec- that could circumstances did these cases with, in none of begin To particularized rise given tively ques- challenge the directly the defendants the invitation concerns,6 decline Thus, none of plans. travel about tions case. in this rule bright-line announce why it con- is explain explore or decisions emphasized has Supreme Court an officer for permissible stitutionally stop may a conducting or her travel his a detainee neces- reasonably steps as [are] “take such is unrelated if the plans safety.” personal sary to protect v. States United stop. See purpose of 235, 105 S.Ct. Cir.1995) U.S. Hensley, 469 (10th 1450, 1454 Kopp, 45 it is indicated the Court example, For asked that officer (acknowledging the driver require for an proper plans); travel about his car lawfully stopped aof (10th occupants 558, McSwain, v. States v. Wil- Maryland vehicle. out get proposi- Rivera (quoting 882, 137 408, 414, 117 S.Ct. son, 519 U.S. a routine an officer “that tion “dan- (1997) (concluding L.Ed.2d ‘identity and may inquire stop is a Rivera, to an ger ”); States plans’ travel pas- are when greater Cir.1989) (hold- likely be is rele- subjective motivation whether officer’s officer's imply that an not mean 6. We do Rather, exami- our Terry analysis). a generally relevant vant to subjective motivations Wald, is subjective motivation Terry analysis. See United of Tucker's a nation to 216 F.3d 1222, (recog- arguments. government’s by prompted resolve, question of declining to nizing, but Indeed, sengers addition to the driver in a Tucker testified that he did not car”); Mimms, stopped Pennsylvania v. Holt, “remember feeling threatened” by 6, 111 n. 98 S.Ct. 54 App. at and the district court found (1977) (noting L.Ed.2d 331 that removal of that Tucker and Holt were “surrounded the driver reduces the likelihood the offi additional officers.” Id. at 91. will cer be the victim of an assault and Tucker’s actions are con- posed reduces the to the risk officer from sistent with the conclusion he was not traffic). Likewise, oncoming the Court concerned for safety. For example, has held that officer conducting a Tucker attempt did not pat- conduct a Terry stop reasonably believes the detain down search of Holt when got he out of his “is ... dangerous may gain Further, ee imme vehicle. the evidence indicates weapons,” diate control of may he placed Tucker patrol Holt car sim- passenger compartment “the ply [the de because that was his practice automobile, tainee’s] limited to those areas with male (although detainees that routine in which weapon may placed or practice hid originated out of safety den.” Michigan Long, 1032, concerns, there was no evidence on that 77 L.Ed.2d point). The nature of question posed (1983).7 (i.e., Tucker “if there was anything in the vehicle I should know about such as Although ais serious con- 40) weapons”, loaded App. at bolsters the can, cern proper circumstances, under conclusion that he was not motivated justify protective various measures during safety concerns. Finally, in seeking Holt’s Terry stop, there is no evidence in this vehicle, consent to search the appar- case suggesting that Tucker was motivated ent that Tucker was not interested in lo- concerns, by safety nor is there sufficient cating gun for safety purposes, but evidence that objectively give would rise to rather was interested in if determining particularized safety concern. There Holt had violated Oklahoma state law. testimony was no from Tucker that he (Tucker App. testified he was inter- believed Holt to be armed or otherwise in checking ested gun to “make sure it dangerous. Although Tucker’s limited [wa]s loaded that there [wa]s viola- knowledge that Holt was a drug trafficking tion,” thereby allowing him to “issue a suspect perhaps could have afforded him citation or subject take the custody.”). into with a suspicion reasonable that Holt was see, armed or dangerous, e.g., United As government’s proposed Brown, rule, 864-65 bright-line we conclude this is not the Cir.1999) (indicating that an officer who case to announce such a rule. Aside from stopped suspect for a traffic violation had the fact that the Court generally suspect bright-line disfavors rules the Fourth might be armed dangerous due, context, in Amendment Robinette, see Ohio v. part, to the officer’s knowledge 33, 39, of FBI 417, 519 U.S. 117 S.Ct. 136 L.Ed.2d surveillance of suspect’s the (1996), vehicle as a 347 it would be illogical, in our possible part large-scale of a view, drug opera- to safety-based announce a bright- tion), there was no evidence this regard. line rule in a case where there is no evi- 7. This court has also authorized oulweighs actions taken the individual's Fourth Amend- by during Terry an officer protect Wood, to his ment interest objective when an officer has safety. 942, own See United States v. 106 basis to person being believe that the lawfully (10th Cir.1997) F.3d 945 (concluding an detained is dangerous.”); armed and but see may, officer appropriate under Melendez-Garcia, circumstances United States v. 1046, and in order to (10th ensure his own Cir.1994) "obtain 1052 (indicating that information regarding the detainee’s criminal use of force such as handcuffs and firearms history”); United King, 990 during Terry stop F.2d is more than de minimis (10th Cir.1993) (“The 1561 governmen- liberty, intrusion on detainee’s and would tal interest safety in the of require officers scrutiny). thus close

939 in support the by cited dissent The cases it. As support to authority or dence are, in our rule bright-line above, proposed no the there is of in detail explained the cited majority of view, was The inapposite. that Tucker’s evidence safety concerns and understandable involve limited motivated subjectively cases Mimms, regards and specifically and (either or of Wilson generally extensions presented Holt). Further, evidence take reason an officer to simply authorize hearing suppression at the driver government control the physically to steps able conclude to allow us to insufficient was course of occupants and objectively was faced Tucker Columbia, v. District Rogala stop. See of Finally, concern. safety (D.C.Cir.1998) (extending 44, 53 F.3d any evi- presented has not require pas officer to allowing and Wilson any authori- dence, it to pointed nor remain vehicle to stopped car senger in generally of risks types ties, indicating States stop); traffic United routine places she he or after officer by an faced 1244, 1998 WL 552427 Barnes, 156 F.3d passen- in the car a stopped of driver 1998) (10th (concluding, Aug. Cir. *3 at generally car. See patrol seat of ger Wilson, officer proper of light 117 S.Ct. Wilson, at along by a fence to stand order detainee to Bu- Federal outlined statistics (citing following sniff during canine highway report regard- crime Investigation of reau States United stop); traffic and assaulted of the number (3d 10, 12-13 Cir. Moorefield, stops); pursuits killed 1997) to allow (extending Wilson Mimms, at in vehicle with to remain passenger order dan- outlining the study case (citing air); v. Stan- States hands approaching police officer by a faced gers F,3d 981-83 field, automobile). in an suspect seated to allow and Wilson Mimms (extending by the unpersuaded likewise We are heavily vehicle approaching dis- by the forwarded arguments various one of at least open windows tinted proposed government’s in favor sent in and, reaching without doors vehicle’s two re- cites dissent rule. The bright-line vehicle, vehicle’s visually inspect side independently uncov- it has reports Little, interior); also United see judicial take we “can suggests ered *1 at 1297, 1999 WL 196515 by officers faced the risks notice discussion no (noting, with Op. stops.” Dissenting conducting get asked driver analysis, acknowl- readily Although we n. 5. it and between and stand her vehicle out by officers faced generally the risks edge officer from prevent officer’s cited stops, the statistics conducting traffic traffic). re passing exposed being nothing about tell us the dissent announce involve the do not maining cases i.e., case, like- peculiar to dangers rules, but rather any bright-line ment out getting a detainee lihood circumstances unique specific involve weapon car, concealed obtaining a patrol concerns to reasonable giving rise detaining caí-, assaulting part evi- lack relevant Given officer. Hardy, stops. See what make unwilling to dence, we are *2 Cir. WL specula- than little more amount would justi “was 1998) (concluding officer 5,Oct. the rele- concerning of fact findings tive safety because his concerned fiably Likewise, we dangers. potential vant erratic distress obvious Defendant’s step of bold to take the it unwise think asking justified behavior,” was thus rule bright-line proposed the adopting bag in a guns if there were defendant the record unclear from it is when items); remove began defendant much, protec- which any, if afford the rule would Peppier, Giannola to an officer. tion (6th Cir.1998) WL 96557 at *3 (concluding Although we share the dissent’s concern when, reasonably that officers acted after for officer safety, we are reasonably cer- driver tain pull refused to that existing Supreme vehicle over and Court and cir- ensued, cuit a brief chase approached law sufficient to protect that inter- drawn); guns with their est. If and an posed vehicle when officer is McRae, 1528, circumstances that give rise to a reason- (10th Cir.1996) concern, safety able existing 1535-36 (holding that case law al- lows him to suspicious circumstances, necessary steps take protect combination (e.g., detainee, himself frisking fact including dispatcher the search- advised offi- passenger compartment cer to use “extreme caution” of the de- de- because vehicle). tainee’s Unlike proposed tainee had been arrested for numerous rule, bright-line steps these drug justified not neces- trafficking charges, sarily dependent upon the detainee’s ver- asking record); detainee his criminal response. bal Packer, United States v. 15 F.3d (7th Cir.1994) (concluding permissi- it was sum, we conclude Tucker ex ble under circumstances for ap- officer to scope ceeded reasonable of the deten proach stopped vehicle flashlight and tion questioning Holt about pos occupants put ask the hands contraband, session of including loaded air). weapons. Although the questioning oc curred while Tucker writing was out the Because it focuses exclusively on the citation, is essentially uncontroverted allegedly reasons justifying adoption of the questioning was unrelated to the rule, proposed bright-line the dissent fails (i.e., of the stop the seatbelt vio consequences consider the the proposed lation). Further, there has been no as bright-line would engender. rule begin To sertion, either in the district court or on with, it is unclear what would happen if an appeal, that Tucker’s questioning was an response received affirmative prompted by a il reasonable from a in response detainee to a legal activity on part Finally, Holt. about weapons possession. Does affir- there is no evidence in the record sup response mative from the detainee mean port the notion that was the officer is free to seize immediately by safety motivated concerns. weapon Or, from the detainee’s vehicle? instead, does the response detainee’s af- remaining question is ford the officer reasonable suspicion to whether Holt’s consent to search was nev search the passenger entire compartment ertheless “A preceded valid. event, vehicle? In any detainee’s Fourth Amendment violation remains valid adoption of proposed bright-line rule if the consent to search voluntary would presumably allow an officer conduct- fact under totality the circum ing Terry stop, upon approaching a de- Fernandez, stances.” United States v. vehicle, tainee seated in his immediately Cir.1994); cf. presence about the Gregory, 79 F.3d scenario, detainee’s vehicle. Under this (noting that “voluntary consent affirmative response from the given by person who is de conceivably could result in a tained”); full-blown Soto, United States v. search of passenger compartment 1557-58 (holding vehicle, the detainee’s no mi- matter how a defendant’s consent a search of his nor the traffic initially infraction that was voluntary though po even prompted stop, and even if the officer lice officer was in of the defen had no concerns he dant’s registration license and at the time posed question. view, In our goes search). requested consent to too far. “The bears the burden of

941 principles set to the according consent, stops and fie voluntariness the proving Ohio, stop the is whether v. forth is consent is heavier that burdén probable suspicion on reasonable based Fer illegal [detention].” after given that agree I further cause. “If the consent nandez, F.3d at 881. 18 carrying he was to whether driver as the purge will to of free sufficiently an act not on justified be car cannot weapon in the detention, illegal of the taint primary the in this the basis of the ‘fruit of suppressed be ... it must ” majority the My disagreement case. Walker, F.2d at 817 933 tree.’ poisonous allowing a rule rejection of with its begins Maez, F.2d 872 States (quoting United questions safety related Cir.1989)). factors Three 1444, 1453 stop. during a traffic officer weapons by an determination to the relevant routinely act of ask was an may consent officers I believe a detainee’s stop questions a traffic temporal proximity during “the will: free consent, safety, pro in pertain to officer directly and detention illegal du and, extend the circumstances, do not particularly, questions vided tervening character officer’s the fundamental of the or alter flagrancy ration at point is a (citing stop. recognize I at 818 conduct.” unlawful so intrusive 603-04, can become 95 Illinois, questions Brown a full-blown (1975)). begin to resemble they Be 45 L.Ed.2d S.Ct. questions point, At that interrogation. not address did court the district cause non-particu justified no necessary longer to could issue, it is conclude this safety. for officer concerns larized court to the district case Cf. remand Guzman, the voluntariness the issue findings on (10th Cir.1988) that “intru (finding Walker, See consent.8 of Holt’s by an questioning” sive Guzman, F.2d at 1520-21. 818; of us would “any find traffic by even if were undertaken offensive III. on friend, police officer much less a best fur- REMAND REVERSE We Amend Fourth violated the highway” re- district court proceedings ther by, grounds other ment), overruled consent of Holt’s voluntariness garding Botero-Ospina, 71 vehicle. to search Cir.1995). However, today’s per are so guns violence where world EBEL, dissenting. Judge, Circuit lives risk their and where vasive stopped motori approach they the ma- much of time each agree I Although must, simple question st,1 believe a its rea- I do not depart from I opinion, jority weapon that aof regarding the whether an regard to soning with stop is the duration weap- not extend does routinely as to violate or offensive intrusive with the so stop. agree I a traffic ons Amendment.2 Fourth all traf- analyzes this circuit majority that 6,242 dur- were assaulted alone challenges portion also 8. The stops. See Uniform pursuits traffic evi- suppressing court’s order of the district Program: Law Reporting Enforcement Crime Because residence. from Holt's dence seized Assaulted Officers Killed Holt’s motion government conceded (hereinafter Reporting (1998) Uniform Crime evidence, challenge appellate its suppress that (1998)). Program is limited suppression of evidence to the of its upon the outcome dependent to and the officer not authorize would Because I 2. suppressing order portion attack on nor to duration extend the vehicle. from Holt's obtained evidence directly re- that were probe into matters Thus, required. analysis is separate no believe do not I lated contrary to the run rule would ninety-three offi- and 1998 Between authority cit- Circuit authority or Tenth Court and in stops killed cers were majority opinion allowed, The first however, states an We have an officer to any ques- officer not ask the detainee questions regardless ask these of the un- stop, tions unrelated to the of the derlying traffic justified violation that if even the does not extend the initial stop. length stop, normal of the the offi- unless If we question allow a motor- suspicion cer has of illegal reasonable ac- topics ist on wholly pur- unrelated to the tivity. misrepresents assertion This pose stop, of the law this circuit. we should We held numer- allow fortiori ous times that officers are allowed officers to ask questions predi- motorists a traffic question driver about his upon general cated concerns for officer plans. e.g., travel See United States v. safety. The principle that an officer can Kopp, 45 F.3d take steps protect himself during traf- (implicitly questions about allowing travel stop, fic even steps when the taken are plans after stopping car for speeding); potential unrelated to the crime in- being McSwain, 29 F.3d vestigated, is well-established. The Su- (10th Cir.1994) (officer may inquire preme Court has consistently recognized identity plans into and travel during a the “legitimate and weighty” state interest stop); routine traffic United States v. Riv- safety, officer finding it unreasonable to era, 867 F.2d require police officers to take “unneces- (holding that an officer can “legitimately sary performance risks of their questions relating to the identity and Mimms, duties.” Pennsylvania v. plans travel occupants of [the of the car] 106, 110, 54 L.Ed.2d S.Ct. ... regardless of [the officer’s] underlying (1977). recognition In paramount of this motivation”). a car stopped When interest in officer safety and the “inordi- speeding or straightforward for a nate risk confronting an officer ap- as he violation, opposed being stopped on proaches person seated in an automo- suspicion that the driver is falling asleep bile,” Supreme Court has consistently (in driving erratically which case the approved protective measures rou- legitimately would be concerned tine and other lawful investigatory deten- with how much further the driver intended tions. travel), (establishing rule that explain is difficult to how can require drivers to exit concerning the vehicles plans travel occupants reasonably are related to routine traffic stop legitimate because of justified circumstances stop. concern for officer safety without requiring (See opinion. ed opinion pages the majority majority tioning only justified can be on the basis of 936-37.) The majority opinion suspicion. Id. at 872. In Jones Royer, cites Florida v. we were not faced with the issue of whether (1983), 75 L.Ed.2d 229 proposi- for the questions could be justified on the basis of tion that the has the burden to However, safety. concern for officer even if investigative demonstrate that an detention is concerns had been raised in scope limited in duration. question A Jones, question asked the officer in carrying about while an offi- supported Jones could not have been waiting dispatch cer is to check the driv- safety rationale. The officer in Jones did not er’s license would not extend the duration of possible weapons, ask about simply but asked Furthermore, stop. as discussed more any drugs whether the driver had in the car. below, thoroughly Court has al- Id. at 863. argued It cannot that this protective lowed officers to take measures in question was possible asked out of concern the name of despite the fact that safety. for the officer's A steps these potential unrelated to the hand, weapons, very on the other logi- has a being crime investigated and thus outside the cal and scope safety. obvious nexus to officer officer's reasonable event, justifying stop. that, holding only in Jones was under the majority presented, also cites United circumstances Jones, (10th Cir.1995), interrogation drugs appropriate in which we held that subsequent ques- concurrent or and reasonable. stop, even a traffic when sures for offi concern basis particularized a danger to Wilson, particularized of in the absence v. Maryland also safety); see cer v. Lit e.g., United States 41 See 882, 137 L.Ed.2d the officer. 408, 117 S.Ct. 196515, *1 1297, at making WL tle, officer 178 F.3d 1999 (1997) police (permitting (officer 1999) 24, car to (6th out of allowed passengers Mar. order Cir. stop to traffic safety without officer for officer between to stand require of concern driver out a showing concerns); of Gian particularized safety car out of requiring concern). 433, WL safety F.3d Peppler, v. nola (6th (allowing officer 96557, *3at expand further courts The circuit in raised guns approach to measures police acceptable of the realm ed frequently “danger police of light in stop during a traffic that can be taken stops” and traffic routine during encounter This circuit safety. of officer the name pull to reluctance initial from motorist’s expand make officers to allowed often Columbia, 161 over); v. District Rogala a routine during of motorists inquiries ed (officer (D.C.Cir.1998) can re F.3d safety. of officer interest traffic in vehicle); in remain Barnes, passenger F.3d quire v. States See United 10, (10th 111 F.3d Moorefield, 552427, v. *3 Cir. at United States 1244, 1998 WL Cir.1997) (officer routinely re (3d can 1998) to order mo (appropriate 28, Aug. sniff hands canine in car with during stay by fence quire passengers to stand torist (unpub stop) promote traffic following during routine a traffic raised Hardy, 162 lished); Stanfield, States States safety); United officer 704706, Cir.1997) (in *1 Cir. 1174, 976, 1998 WL 981-83 if there 1998) (officer ask motorist could recognizing safety, and officer interest a motorist bag guns in stops, traffic during dangers the inherent during a routine items to remove began vehicle door routinely open officer can (unpublished); stop) traffic are occupants whether visually determine 1528, n. 6 McRae, stop when traffic a routine during armed motorist to ask (allowing officer windows); United darkly tinted car has in record criminal prior he had (7th Cir. Packer, F.3d 654 safety). officer interest of re 1994) procedure (approving officer’s shining hands and to raise motorist quiring allowed have likewise circuits sister Our vehicle).3 through light protective mea- various to take slaying roadside of murder in convicted Circuit observed: 3. The Seventh traffic routine trooper State Virginia lale-20th fact life regrettable It is a century Shooting Guilty in Not justifi- stop); “Two Plead police officers America Times, and, Officer,” Angeles safety, Los Long their Beach ably are concerned lives, indeed, 1993, (officer citi- they approach 11, critical B3 Aug. stops. traffic of routine course three gunman zens in the shot him after condition six newspaper head, database A times, during a routine once of this case prior to the submission months Accept Teen’s Don't stop); "Jurors traffic road- of violent instances reveals numerous Union-Tribune, Defense,” Diego San Rap officers, by on motorists side attacks (Texas 15, 1993, jury sentences July atA5 parenthetical- described of which some hard-core teenager who claimed death See, Of- e.g., Beach "Manhattan ly below. gun a state down inspired him to rap music Times, Shot,” Angeles Fatally Los ficer stop); "Po- trooper (officer 1993, gunned down at A1 Dec. Job,” on lice, Bury Killed Family Officer over pulled outside he had by motorist at B1 June Inquirer, Philadelphia mall; fifteen offi- one of at least shopping partner (one death his shot to motorists rou- wounded cers killed stop). during routine wounded years in stops past five over tine traffic realities, proce- precautionary light these California); Man Con- "Second Southern the offi- employed by as those such dures Slaying; D.C. Trooper's Resi- in Va. victed lights, (the "take down” use Fate,” here cers Washing- Hearing His dent Grins air, etc.) place hands (defendant requests Post, at D3 Nov. ton majority steps concedes that can windows, be vehicle heavily tinted during Terry stop taken an officer routinely open a door to visually look for protect safety, own but suggests that weapons. 981; Stanfield, See 109 F.3d at steps predicated partic- such must be on a Barnes, see also 1998 WL at *3 fear ularized of officer under the (out of concern for Again, circumstances. this suggestion is can require motorist stand fence supported by the case law. The Su- sniff); Moorefield, canine preme Pennsylvania Court v. Mimms (officers at can require 11-13 passengers Maryland adopted v. Wilson a rule keep hands in air a practice that, may, course, as a of matter Packer, during stops); traffic at 15 F.3d require drivers and passengers to exit the (same). Thus, courts already during routine traffic stops to en- approved a wide variety protective of mea- officers, safety sure the whether or sures to be conducted as a matter of particularized not there is a basis to be during course stops, traffic whether or not Mimms, concerned about officer safety. particularized there are concerns for offi- 110-12, (driver); at U.S. 98 S.Ct. 330 safety cer and whether or not the officer Wilson, 413-14, 519 U.S. at 117 S.Ct. 882 subjectively feared for his safety.4 (passenger). This circuit has al- likewise In holding such measures to be reason officers, course, lowed as a matter of Amendment, able under the Fourth ask prior motorists about their criminal courts have held that the minimal intrusion record and to run criminal a during checks into the personal liberty is out stop “largely protect traffic the officer.” weighed by the justification state’s McRae, (“Consid- See at 1535 n. 6 —the Mimms, of the officer. e.g., See ering tragedy of many officers who 110-111, at 98 S.Ct. 330. I during are shot believe stops routine traffic each that year, presents case a the almost this situation computer where simultaneous record, check the minimal person’s of criminal intrusion into per the driver’s along with his or her sonal registration, liberty asking license and whether the motor intrusive.”). hardly reasonable and carrying weapon ist is The is outweighed by Fourth Circuit has a rule that the “weighty legitimate” established interest officer, an when required approach a officer safety.5 Supreme The Court noted unquestionably are reasonable mak- Although the officer guns there asked about ing stops. traffic only drugs, drugs or were found as a result of Packer, 15 F.3d at 657 n. 2. gun the consensual search. The was discov- appears ered later what to have been an Fernandez, 4. United States v. 18 F.3d 874 event, inventory any search. In in that case (10th Cir.1994), in which disap- this court that the questioning held was constitution- proved continued detention of a motorist to al because it was both consensual and based inquire possessed weapon he or Thus, suspicion. language articulable illegal drugs when reasonable upon about questioning restraints an officer activity present, criminal was not is not to the guns about was dicta. Fernandez, contrary. Id. at 881 n. 6. In facts of the case make clear majority suggests 5. The poor is a extended the duration of the in order to case to announce such a rule because there is questions guns. about In no question that the evidence officer's case, present Officer Tucker asked the by fear motivated nor did the question weapon about a while he was run- present gener- statistical evidence of the risks ning computer checks on Holt’s license. ally during stops. faced traffic Thus, question did length not extend However, I do not believe an officer needs to Moreover, stop. subjective establish fear before weapons, was not limited to but also extended presence officer can ask about the drugs, beyond which is pale of officer Further, guns. judicial this court can take safety. notice of the risks faced officers when Turner, Similarly, United stops. traffic Supreme Court (10th Cir.1991) contrary. is not to the provides case alone law sufficient evidence of and reason prudent it only makes guns 1994 alone that in v. Wilson Maryland inquire about eleven allow officer able to assaulted were 5,762 officers such encoun pursuits guns existence killed were Wilson, 117 S.Ct. 519 U.S. ter. stops. Investiga Bureau Federal (citing

at 885 possible concerned might be One Law En Reports: tion, Crime Uniform when ask implications Fifth Amendment Assaulted Killed and Officers forcement carrying a a motorist (1994)). number has This However, Court weapon. intervening years. only increased asked held expressly of the Uni version subsequent Fifth implicate stop do a traffic upon by the relied Reports form Crime In Berkemer concerns. Amendment 6,242 offi indicates in Wilson Court McCarty, pursuits during assaulted cers were (1984), held that L.Ed.2d 317 Court Uni killed. See and nine stops not (1998) a did of motorist questioning at roadside Program Reporting Crime form thus interrogation as of these custodial percent constitute Seventeen 32. i.e., motorist with dangerous provide a need officers saults not — separate any A making at 79. knives, prior Id. guns, warnings etc. Miranda homi out of ten nine 435-41, indicates S.Ct. 3138.6 report at inquiries. between enforcement cides of law suppression I reverse would Because shooting. a resulted 1992 and car, I would from Holt’s evidence of the Zak, Compen Mark J. & Clarke Cindy See of suppression evidence also reverse the Conditions, Fatalities Working sation of search subsequent from the obtained Fire Laiv Officers Enforcement I think search Although house. (cid:127)Holt’s (1999). Thus, 1992-97, 3, offi fighters, independently might be house of Holt’s being assault risk of very a real face cers con- apparently government justifiable, every time weapon dangerous awith ed house stands that the search ceded Against stopped a vehicle. approach they of concern, the search legality of we must with the or falls legitimate this by that per bound is into the The intrusion car. weigh However, directed I simple question believe liberty of a since sonal concession. the nu Given de- the officer. protecting at improper nowas allowed al Holt, merous sub- similarly believe the I tention i.e., identity, stop, a ready constitu- his home sequent regis request for license plans, travel tional. concerning tration, question additional conclusion majority’s my opinion, weapons is de possible to allow not sufficient safety is that officer in the con not unreasonable minimis simple inquiry to a to make stop, after A traffic encounter. text of the in stops is during traffic guns presence It encounter. all, a social is not stop is the traffic error, long as so suspected aof stop by an officer forceful this opinion, my Ultimately, prolonged. violence increasing The law violator. by this review banc en warrants issue widespread prevalence society and our need and so we case presented is not each time officers face risks the substantial However, one obvious not address here. conduct they approach acknowledges if a detainee response is that Mimms, 434 U.S. at stop. See least can gun the officer possession of Wilson, 330; S.Ct. 882. own cautiously respond more answer the detainee’s regardless of whether question hypothetical majority asks 6. And, is the consequences. legal might after occur about what to allow the reason essence the exis- question about the officer’s answers course, place. the first hypothetical, gun. That tence of court or certiorari review by the United Court. America,

UNITED STATES of

Plaintiff-Appellee, CHAVEZ, Defendant-Appellant.

Sandra

No. 99-2200. States Court Appeals,

Tenth Circuit.

Sept.

Case Details

Case Name: United States v. Holt

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 24, 2000

Citation: 229 F.3d 931

Docket Number: 99-7150

Court Abbreviation: 10th Cir.