*1 case this over jurisdiction retained pendency. its
throughout over jurisdiction lose we time
noAt awas there times at all case, because us place decision agency final removal. order the IJ’s
review: may point, directly Lolong aof distinction the basis it side-step I dissent ultimately immaterial. determination majority’s
contrary. America, STATES
UNITED
Plaintiff-Appellant, L. TURVIN; Corina T.
Sean Defendants-
Cunningham,
Appellees.
No. 06-30551. Appeals, Court Circuit.
Ninth 8, 2007. Aug. and Submitted
Argued 26, 2008. Feb.
Filed
I. On the evening of November Alaska State Trooper Christensen stopped a white pickup truck based on the truck’s unusually exhaust, loud rapid acceleration around turn involving minor skidding, and driving six miles over the speed limit in snowy conditions. When he approached truck, which had entered a gas station lot, parking the Trooper observed that nei- Cohen, Nelson P. ther occupant appeared to be Attor- wearing a ney, and David A. Nesbett, seatbelt and Assistant that the Unit- truck’s registration ed States Attorney, expired. District Alaska, He asked the occupants for Elizabeth A. Olson, identification; Attorney, U.S. Depart- the driver was Sean T. Tur- ment Justice, vin Washington, DC, and the occupant for the L. Corina Cun- appellant. ningham. The Trooper talked to them for three or four minutes about the Mary Geddes, C. violations Assistant Federal De- he had observed and then fender, returned to his Anchorage, AK, for the appellees. police vehicle, where he radioed headquar-
ters to conduct a warrant and license check. The response informed him that Turvin’s driver’s license was current and valid. About ten minutes Before: J. after CLIFFORD WALLACE, began, JOHN T. Christensen sat NOONAN, in his vehicle writing RICHARD A. out
PAEZ, traffic citations, Circuit Judges. Trooper Powell ar- rived at the scene. Powell had heard Opinion by Judge WALLACE; Dissent Christensen on radio and recog- by Judge PAEZ. nized Turvin’s name because he knew that a “rolling WALLACE, methamphetamine Senior laboratory” Circuit Judge: had been found in Turvin’s vehicle follow- government appeals from the dis- ing a traffic stop earlier year. trict court’s order suppressing evidence When obtained Powell arrived, from the search of he recognized Turvin’s vehi- Turvin cle. While truck, Turvin Turvin’s was waiting for police informed officer Christensen to issue a about citation, incident. questioned Christensen then stopped Turvin out the methamphet- traffic citations, amine and turned on tape obtained his Turvin’s consent record- er, and search his stepped out vehicle to speak contraband. The who district was still in court held truck. posi- Powell ques- officer’s tioned tions about himself at the rear of methamphetamine and Turvin’s truck request assist if conduct a needed. search, unsupported by rea- sonable suspicion, turned an initially rea- Upon approaching truck, Christen- sonable detention into an unconstitutional sen told Turvin that he knew about the one and rendered Turvin’s consent invol- rolling methamphetamine laboratory, untary. We jurisdiction pursuant to which Turvin acknowledged. Christensen § U.S.C. 3731 and we reverse. then observed something in plain view be- judge agreed seat, leave.” The MJ and district Turvin identified
hind
asked
investigation
then
violated Turvin’s
speaker
as
box.
mind if Christensen
if he would
rights
explained by
Fourth Amendment
speaker
because
his vehicle
searched
*3
Chavez-Valenzuela,
us in United States v.
said,
very odd.”
box,
“look[ed]
(9th Cir.2001).
when
for clear error the dis
were discovered.
We review
underlying
of fact and
findings
trict court’s
Cunningham were cited
Turvin and
on a
ruling
de novo the district court’s
seatbelts,
Turvin was cit-
wearing
suppress.
motion
v. Mi
Cunning-
exhaust.
ed for his truck’s loud
randa-Guerena,
1233, 1236
445 F.3d
on her proximity
based
ham was arrested
Cir.2006).
only
ap
on
disputed
issue
A
of
drugs
cup.
in the
search
found
is whether Christensen violated Tur
peal
La-
in cash.
Cunningham revealed $773
at the
ter,
Cunningham’s
the cash
Fourth Amend
police
when
examined
vin’s and
station,
among
mixed in
they
found
police
rights by asking
ment
a
bag containing
sub-
plastic
a
the bills
of the
that unreason
methamphetamine.
suspected to be
stance
ably
extended
stop.
lawful traffic
Cunningham
indicted
were
methamphetamine
to traffic
conspiracy
intent
to distribute
possession
A.
methamphetamine.
of
grams or more
five
analysis of the district court deci-
Our
possession
Turvin was also indicted
our recent and
primarily
sion is based
a mo-
firearm. Turvin filed
prohibited
in United States Men-
on-point decision
Cunningham
suppress,
tion
which
dez,
(9th Cir.2007),
we
no
joined, arguing
that “the
had
court’s final rul-
the district
decided after
de-
for the
reasonable
Mendez,
rejected
ing.
In
we
tention,”
consent to the
and that Turvin’s
despite
claim
the fact
involuntary.
search of
truck
had,
case
without
police officers
granted Turvin’s mo-
The district court
ques-
asked Mendez
suspicion,
reasonable
adopting
magistrate
suppress,
tion to
initial-
tions unrelated
(MJ)
that, though
recommendation
judge’s
at 1081. In so
ly
stop.
lawful traffic
based
stop was lawful and
the initial traffic
deciding,
acknowledged
Su-
cause that a traffic violation
probable
portions
those
had overruled
preme Court
occurred,
Christensen “exceeded
(the
upon
case
of Chavez-Valenzuela
stop”
“investi-
scope of the
court’s decision was
which the district
be-
gating]
suspected drug
into
activities
based)
to have
required police
during
of the traffic
yond
scope
be-
to ask
was not free
the time that Turvin
(internal
yond
scope
stop.
Id. at
Muehler cases. stop separate unnecessarily stop “the ticket-writing process prolongs ques- Id. at 1079. Jaensson’s prolonged.” may duration of the be nonetheless check- while Bracke was tioning occurred under Muehler’s identification, so “the ing on Mendez’s analysis. Nor have cir other would, event, lasted until after any squarely addressed this factual situa cuits completed.” Id. the check had been However, Supreme tion. Court’s check was com- Once the records teaching that “the touchstone of the Bracke, had overheard Men- plete, who *5 reasonableness,” Fourth Amendment is membership gang" dez’s comments about Jimeno, 250, 248, Florida v. 500 111 time, his two jail “immediately asked (1991), 1801, gives 114 S.Ct. L.Ed.2d 297 pointed Id. also out that We questions.” important guidance. us The Court has up to the arrest stop from the time of the emphasized fact-specific that a reasonable minutes. Id. only eight appropriate inquiry ness for case, in this Turvin contends that v. Robi questions. See Ohio unnecessarily The prolonged. stop was 39, nette, 33, 417, 117 519 U.S. S.Ct. 136 specifically point, address this MJ did not (1996). Therefore, L.Ed.2d 347 questions un- were determining case, we must examine the “totali present they were merely because constitutional ty surrounding the of the circumstances” stop, of the a conclusion scope outside the whether stop, and determine Christen After clearly foreclosed Mendez. now sen’s conduct was reasonable. Id. however, reconsideration, motion for Mendez, the overall we identified report that “the in his final MJ did state observing that stop, length of stop ... was extended or traffic eight-minute stop beyond was not the time arriving late of the comments because a citation. 476 normally required issue Although Trooper Powell.... Trooper out that pointed at 1079-80. We also traffic writing had been Christ[e]nsen tick- intentionally did not Jaensson and ticket-issuing pro- stopped ets ... he Bracke their pursued but delay diligently solely for tape used a recorder cess and investigation purpose stop. into the drugs about asking his vehicle.” at 1080. consent to search [ ] sur- the circumstances As in then, this: does question, The pause here were rea- rounding the brief his ticket- paused fact that Christensen stop up duration of the sonable. The total process to ask a few point which Turvin consented to to the at of the traffic was, according the search least a few stop, thereby prolonging, for at testimony, fourteen uncontested moments, otherwise the duration of that an ordi- longer no than minutes. This is stop into stop, turn the lawful legal take, reasonably is, stop could nary traffic That unlawful detention? based an with the dissent agree and we do not underlying circumstances the factual reasonable, evidentiary findings necessary are to dem- of a traffic stop is see United Stewart, 1265, onstrate the sensible observation four- 473 F.3d unreasonably is not long Cir.2007), teen minutes United States v. Alcaraz- time, it took stop. Arellano, Of Chris- 441 F.3d Cir. perhaps speak 2006). tensen four minutes to The Tenth Circuit has declined to Powell and then to walk to Turvin’s vehicle study “make time and motion of traffic rolling and ask him about the metham- stops” in order to the precise determine phetamine laboratory and for consent to effect that has on the duration search. This was reasonable for him to do a stop, reasoning instead courts arrival based Powell’s and information must “consider the detention as a whole.” rolling methamphetamine about a labora- Patterson, States v. tory involving the same vehicle and the (10th Cir.2006). person. same Eighth similarly The Circuit has held Moreover, that Christensen observed that a probable based on cause speaker requesting box driving speed excessive was not sent search buttresses the conclusion made unreasonable when an officer request that his under was reasonable “ask[ed] three brief related to circumstances. Christensen knew a pri- possible drug amidst trafficking his other rolling methamphetamine laboratory, inquiries traffic related and tasks.” Unit which could have contained in some- Olivera-Mendez, ed States v. 484 F.3d box, speaker thing justifying like the fur- (8th Cir.2007). (We pass upon do not inquiry. speaker ther box observation adoption that court’s of a de minimis ex *6 significant. is findings The initial MJ’s ception justifying questions.) brief fact indicated that Christensen did not see Indeed, required officers are not to the box behind Turvin’s seat until after he top speed move at when a executing lawful sought consent to search. agree We with traffic stop. As the Eleventh Circuit has government the finding clearly that this is stated, erroneous; recordings the audio of the A traffic for speeding can doubt- stop show that Christensen did observe lessly long enough police last for the to the requesting box before consent to questions ask about the reasons for search. This fact is in relevant establish- speeding a variety and to conduct ing in the circumstances which Christen- licenses, checks registration, about in- sen asked consent to search. it Just as and surance so on. underline was in We reasonable Mendez for to police the are questions constitutionally ask not re- based on information to during quired top speed learned the move at or as stop, course of the fast as question possible. police For the request vigilant and to to be is, broadly search were about crimes speak- reasonable based on facts at least learned ing, good and a thing. observations made after he at a stop, And traffic stopped police Turvin. the can occasionally pause for a breath, moment to take a to think about Sister circuits have adopted the same heard, they what have seen and and to analysis: pauses brief questions to ask question ask a police or so. The are during stops, if questions even those authorized to detain traffic violators for are stop, unrelated to the a reasonable amount of time. may permissible be under Muehler. The Hernandez, Tenth Circuit held that that United States v. 418 F.3d 1206, Cir.2005) (internal does not “appreciably” extend the duration 1212 n. 7 See, as well. circuits by other considered v. States also United omitted); see citation Soriano-Jarquin, e.g., S.Ct. Sharpe, (“In 495, 501 a de- 492 (holding (1985) L.Ed.2d identifica request Trooper’s] case,[the offi- where unreasonable not tention it oc stop, diligent not down, tion were slowed cers, though checked trainee while curred investigation). their pre and registration license driver’s particular applies analysis This follow, citations”). not does It pared proba- have here, officers where, like force only circum are the however, that those violation. a traffic know to cause ble ask to is reasonable it in which de- stances Circuit, a pre-Muehler The Seventh Court Supreme The questions. where reasoned cision, persuasively rule, nei narrow a sup- such not set violation does aof cause probable who asks officer An we. not do ther does driver a stop, a ports likely will a ticket physically instant released be to right ha[ve] who as an just down license, registration, slowed be check steps prin is no There so. do to write warrants, briefly pauses outstanding is situation second why It completed. reason cipled been ticket, ha[ve] first. not determine but necessary unconstitutional therefore added conduct officers’ whether irration- illustrates case present time minimum or so minute dis- distinction ality of the ac- been have could steps these bright- proposed their Under offer. sent Constitution What .... complished may rule, Christensen’s line re- process entire requires of sce- number ain permissible hold Questions reasonable. main indistinguishable materially narios crime, create yet detecting potential had if Christensen here: happened what turn inconvenience, do no or little originally he when drugs asked unreasonable into handing the he Turvin, or as stopped detention. if ticket *7 947, 953- Childs, F.3d 277 v. United ticket the writing continue Powell asked banc). agree (en We (7th 54 Powell ifor approached he while result. reasoning this Christensen questions asked ticket- pause brief Christensen’s those scenar- Permitting the ticket. wrote reasonable, was process that actions reasonable not but ios consent until draw would to take chose bright-line accept a willWe given. between line unjustified arbitrary and if the unreasonable are rule that conduct. unconstitutional stitutional ticket-writing process in the pauses simplification, bright-line than Rather Court Supreme them. ask in order a reasonableness requires Constitution bright-line eschewed “consistently has analysis. context], [in rules na fact-specific emphasizing instead III. Robi inquiry.” reasonableness ture that conclusion Mendez’s holdWe It 39, S.Ct. 117 at U.S. nette, 519 reasonable need do officers managed Mendez, true ask si drivers detained question ticket be- here applies lawful anof F.3d 476 See multaneously. request question Christensen’s cause in situations true been has That 1078-79. 1104 for consent to search did not unreasonably (citing United Perez, States v. 37 510, F.3d prolong the duration of the stop. Because 513 Cir.1994)). See also United
we decide basis, on this we do not reach States v. Murillo, 1169, 255 the issue of whether reasonable suspicion Cir.2001). We had emphasized that an supported Christensen’s questioning. officer could expand the scope of question- As ing the stop “only if was at all he notices times particularized, lawful ob- detention, jective Turvin’s voluntary factors consent arousing ren- suspicion.” dered Christensen’s Chavez-Valenzuela, search legal. (cita- See F.3d at 724 omitted). States v. tion Torres-Sanchez, 83 Muehler, After this line of (9th Cir.1996). Therefore, reasoning could not pass constitutional evidence obtained as muster, a result of we so held in Mendez. We search is admissible and the district therefore court’s concluded that: “[t]o the extent order to suppress is REVERSED. that Chavez-Valenzuela, Murillo, and Per- ez hold that such questioning must be sup-
PAEZ, Circuit Judge, dissenting:
ported by separate reasonable suspicion,
I
Because do not
they
believe that
have been
overruled by Muehler.”
suspicion supported Trooper
Mendez, 476
F.3d at 1080. Recognizing
decision to prolong his traffic stop
of Tur-
new legal landscape,
rejected
Men-
vin, I would affirm the district
dez’s
court’s or-
Fourth Amendment challenge to his
der granting Turvin’s motion to
arrest,
suppress.
explaining that, “because ...
I therefore respectfully dissent.
officers’ questioning did not prolong the
stop, we
First,
are compelled
I agree with
hold that
majority
expanded
after
the Supreme
questioning need not
Court’s
decision
supported by
Muehler Mena,
separate
suspi-
S.Ct.
cion.”
Id. at
161 L.Ed.2d
1080-81.
(2005),
our analysis
of the Fourth Amendment issues in this
Here,
to the extent
the district
case must
guided
be
by our recent decision court’s suppression ruling relied on the
in United States v. Mendez,
pose
his
search
to
consent
a
for
drugs and
Nor-
vehicle.
Ms
to search
a consent
for
and
(3)
vehicle
his
exited
vehicle,” and
traffic
in a
engaged
mally, an
Powell
truck, while
Turvin’s
Tr.
to
returned
tape recorder.
a
use
not
will
stop
of Turvin’s
rear
at the
his
himself
reaffirms
positioned
judge
magistrate
The
this
At
backup.
by as
the
stand
to
vehicle
police
the
finding that
anything
seen
not
and
had
troopers
of Turvin
the
point,
lawful
otherwise
might
it
they
that
for which
indicate
to
grounds
truck
on
in the
passenger
his
for
and
Turvin
that
or
methamphetamine
have
tain
not
did
meth.
with
involved
were
companion
doing so.]
his
reason-
that
court
truck,
the district
Christen-
with
agree
I
to
returning
After
to
exist
not
did
standing outside
Turvin,
was
able
who
told
sen
It is
companion.
his
and
rolling
Turvin
stop of
about
knew
vehicle,
he
that
his
testimo-
Trooper Christensen’s
acknowledged.
clear
Turvin
lab, which
meth
on
arrived
Powell
Trooper
until
that
ny
something
see
he could
stating that
After
any
did
scene, Christensen
said
Turvin
seat, which
Turvin’s
behind
his
Turvin or
either
that
suspect
reason
Tur-
asked
box, Christensen
speaker
awas
in
engaged
were
or
been
had
companion
vehicle.
his
search
could
he
if
vin
activity.
drug
illegal
any
towas
consent
Turvin’s
seeking
truck
Turvin’s
stopped
had
Christensen
contraband.
for
search
accelera-
exhaust, rapid
its loud
because
magis-
faults
majority
Although
and
skidding
corner, minor
tion around
erroneously finding
judge for
trate
approached
Christensen
As
speeding.
to search
for consent
asked
Christensen
occupant
neither
truck,
observed
he
box,
agree
I
speaker
observing
before
and
a seatbelt
wearing
to be
appeared
whether
his determination
with
After
expired.
registration
truck’s
Chris-
or after
before
occurred
observation
war-
and
a license
conducted
Christensen
immaterial.
consent, is
for
asked
tensen
was informed
he
check
rants
that, when
my view
in
important
isWhat
valid.
current
license
Turvin’s
pri-
his
about
Christensen
informed
Powell
issue
decided
then
Christensen
Trooper
in
earlier
Turvin
encounter
compan-
his
Turvin
citations
traffic
“briefly pause”
just
Christensen
ion.
he
so that
citations
writing the
began,
after
minutes
About ten
his
to search
consent
ask
could
his vehicle
sat
Christensen
completely
Rather, Christensen
truck.
Powell
citations, Trooper
out
decided
citations
writing the
stopped
heard
had
Powell
scene.
at the
arrived
In-
investigation.
drug
upon
embark
recog-
radio
on the
recorder
tape
his
deed,
turned
he
he knew
name, because
Turvin’s
nized
drugs
asking Turvin
found
lab”
meth
“rolling
Be-
vehicle.
search
consent
following a traffic
vehicle
correctly
judge
magistrate
cause, as
*9
earlier
endeavor
found,
new
this
scene, he
arrived
Powell
When
needed
stop, Christensen
of
length
in-
truck
his
recognized
do
so.
suspicion
inci-
prior
Christensen
formed
not exist.
did
Here, reasonable
(1) “stopped
dent,
then
“particu
requires
Reasonable
(2)
turned
process,”
ticket-issuing
suspecting
basis
objective
larized
“solely
vehicle
in his
recorder
tape
the person stopped of criminal activity.” 1868,
States v. F.3d 947 Cir. 2002) (en banc). There, the court held
“that where a seizure of a person is based
on probable cause to believe that a traffic violation was committed, an officer does PACIFIC MERCHANT SHIPPING AS not violate the Fourth ask SOCIATION, a California Mutual Ben ing a few about matters unrelat efit Corporation, Plaintiff-Appellee, ed to the traffic violation, even if this conversation briefly extends the length of the detention.” United States v. Olivera- James GOLDSTENE,* Executive Offi
Mendez, Cir.2007). cer of the California Air Resources Several other circuits, the Eighth in Oliv Board, Defendant-Appellant, * James Goldstene is substituted prede- for his of the California Air Board, Resources pursu- cessor, Cackette, Thomas as Executive Officer ant to Fed. R.App. 43(c)(2). P.