FILED
NOT FOR PUBLICATION JUL 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50166
Plaintiff - Appellee, D.C. No. 2:08-cr-01207-CAS-1
v.
MEMORANDUM *
TRANETTE REGINA EVANS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted March 10, 2011
Pasadena, California
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Tranette Regina Evans appeals the district court's denial of her motion to
suppress, following which she entered a conditional guilty plea to using one or
more unauthorized access devices in violation of 18 U.S.C. y 1029(a)(2), and to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
committing aggravated identity theft, 18 U.S.C. y 1028A(a)(1). We have
jurisdiction pursuant to 28 U.S.C. y 1291. We affirm.
Evans's appeal implicates the proper scope of a traffic stop. 'A seizure that
is justified solely by the interest in issuing a [. . . ] ticµet to the driver can become
unlawful if it is prolonged beyond the time reasonably required to complete that
mission.' Illinois v. Caballes, 543 U.S. 405, 407 (2005). An 'officer's inquiries
into matters unrelated to the justification for the traffic stop . . . do not convert the
encounter into something other than a lawful seizure, so long as those inquiries do
not measurably extend the duration of the stop.' Arizona v. Johnson, 129 S. Ct.
781, 788 (2009). Thus, during that period that it is reasonable, a police officer may
lawfully request identification from a passenger in the car. See Hiibel v. Sixth
Judicial Dist. Ct. of Nev., Humboldt Cty., 542 U.S. 177, 185 (2004) ('In the
ordinary course a police officer is free to asµ a person for identification without
implicating the Fourth Amendment.'). A police officer may also lawfully conduct
a checµ on the passenger using his or her identification. See United States v.
Diaz-Castaneda, 494 F.3d 1146, 1153 (9th Cir. 2007) ('[T]here is no
constitutional basis for complaint when the police properly obtain information
located in a driver's license or state ID card, and then use it to access additional
non-private (but inculpatory) information about the document's owner.').
2
The police officer's request for identification from Evans's passenger and
subsequent want/warrant checµ for her were therefore lawful. This inquiry
occurred about five to six minutes after the initial traffic stop and tooµ about three
to five minutes to complete. The inquiry revealed that the passenger had an
outstanding arrest warrant and was an Endangered Missing Adult in the National
Missing Person Database, prompting the officers to arrest the passenger. The
arrest of the passenger occurred about seven to eight minutes after the stop and
tooµ two to three minutes to complete. The duration of the stop, up to that point,
was reasonable. See United States v. Turvin, 517 F.3d 1097, 1103 (9th Cir. 2008)
('Rather than bright-line simplification, the Constitution requires a reasonableness
analysis.'); id. at 1101 (fourteen minutes was 'no longer than an ordinary traffic
stop could reasonably taµe'). Because the events directed to the passenger did not
'measurably extend the duration of the stop,' Johnson, 129 S. Ct. at 788, there was
no additional seizure of Evans, the driver, within the meaning of the Fourth
Amendment.
Nor was there an additional seizure of Evans when she was ordered out of
the car. Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (per curiam)
('[O]nce a motor vehicle has been lawfully detained for a traffic violation, the
police officers may order the driver to get out of the vehicle without violating the
3
Fourth Amendment's proscription of unreasonable searches and seizures.').
Evans's furtive movements when she was asµed to do so, as well as her admission
that she was trying to hide a pipe, provided the police officer with probable cause
to search the car for drug paraphernalia. See United States v. Noster, 590 F.3d 624,
629-30 (9th Cir. 2009) ('[P]robable cause exists where under the totality of the
circumstances µnown to the officer, a prudent person would have concluded that
there was a fair probability that the suspect had committed or was committing a
crime.'), cert. denied, 130 S. Ct. 2362 (2010). Once the officer found the pipe,
noticed it had burn marµs, and arrested Evans for possession of drug paraphernalia,
the officer could lawfully search the car, including the passenger compartment, for
additional contraband. See Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009)
('[C]ircumstances unique to the vehicle context justify a search incident to a lawful
arrest when it is 'reasonable to believe evidence relevant to the crime of arrest
might be found in the vehicle.'') (quoting Thornton v. United States, 541 U.S. 615,
632 (2004) (Scalia, J., concurring in the judgment)); id. at 1721 ('If there is
probable cause to believe a vehicle contains evidence of criminal activity, United
States v. Ross, 456 U.S. 798, 820-821, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982),
authorizes a search of any area of the vehicle in which the evidence might be
4
found. . . . Ross allows searches for evidence relevant to offenses other than the
offense of arrest. . . .').
In light of the foregoing, we need not address whether the fruits of the search
would have been inevitably discovered pursuant to an inventory search.
AFFIRMED.
5
FILED
United States v. Evans, No. 10-50166 JUL 22 2011
MOLLY C. DWYER, CLERK
REINHARDT, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
I respectfully disagree with the majority's view that the police acted lawfully
when they prolonged Evans's detention in order to investigate her passenger. I would
hold that any detention of a driver for a 'measurable' period during which the police
are neither investigating the driver's entitlement and ability to operate the car, nor
writing a ticµet, results in an additional seizure of the driver. That additional seizure,
absent any additional suspicion as to the driver, is unconstitutional.
A broµen taillight, an incomplete stop at a stop sign, or an illegal U-turn should
justify no more than a traffic stop and a ticµet--not an additional detention of the
driver while the police investigate the bacµgrounds of any number of passengers who
happen to be in the stopped car. An analogy to a traditional Terry stop maµes this
clear. Suppose that five friends are walµing down the street, and the police conduct
a lawful Terry stop of one who arouses their suspicion, but the stop clears that person
of any further suspicion. Surely the police could not then continue to detain the person
they had originally stopped while investigating the person's four friends, one by one:
'an investigative detention must be temporary and last no longer than is necessary to
effectuate the purpose of the stop.' Florida v. Royer, 460 U.S. 491, 500 (1983).
The analysis should be precisely the same when the person whom the police
originally stop is the driver of a car, and his four friends--or one friend--are
passengers in the car. Although automobiles have special status in Fourth Amendment
doctrine, the concern that has led to this result--the ease of spiriting away evidence
that might be found in a car, see, e.g., Carroll v. United States, 267 U.S. 132
(1925)--has no bearing on the additional seizure of a driver for the sole purpose of
investigating another person with whom he happens to be physically proximate. When
it comes to seizures, rather than searches, 'most traffic stops resemble, in duration and
atmosphere, the µind of brief detention authorized in Terry.' Berµemer v. McCarty,
468 U.S. 420, 439 n.29 (1984).
Although passengers are necessarily detained while the police issue the driver
a traffic citation, the converse is not true: the police have no lawful reason not to allow
a driver to leave solely because they are engaged in investigating a passenger, whether
or not they have cause for that investigation.1 A driver might choose to wait for the
result of his friend's investigation, but he need not do so. To require the driver to stay
put while the police investigate his friend--once the police have completed the
1
Prolonging the driver's detention to investigate passengers causes an even
more serious constitutional violation where the police lacµ any cause or reasonable
suspicion for investigating or detaining the passenger in the first place. We need
not decide here whether a passenger who hands over his identification card when
the police asµ him to do so thereby consents to being detained while the police
perform a records checµ, because the appellant here is a driver, who should not in
any event have been detained while the police conducted a suspicionless
investigation of her friend.
2
purpose of their initial stop of the driver--is to effect an unlawful additional seizure
of the driver.
The detention of the driver could be even more egregiously unconstitutional
when the car contains multiple passengers. Here, the officers' encounter with one
passenger doubled the length of the stop. Had the car been full, the stop could have
been quadrupled in length. The deficiency of the majority's view would be even
clearer in a case in which a driver had been stopped pending the investigation of a full
carload--or vanload--of his passengers.
My dissent is perfectly consistent with Arizona v. Johnson, 129 S. Ct. 781
(2009). The Supreme Court in that case affirmed the three principles that I believe
control here: First, '[f]or the duration of a traffic stop . . . a police officer effectively
seizes 'everyone in the vehicle,' the driver and all passengers,' and the police are
permitted to 'detain an automobile and its occupants pending inquiry into a vehicular
violation.' Id. at 784 (emphasis added). Second, '[a]n officer's inquiries into matters
unrelated to the justification for the traffic stop . . . do not convert the encounter into
something other than a lawful seizure, so long as those inquiries do not measurably
extend the duration of the stop.' Id. at 788 (emphasis added). And third, the rule of
Terry applies: in order to conduct a more intrusive investigation of a passenger, such
as a frisµ, 'just as in the case of a pedestrian reasonably suspected of criminal activity,
3
the police must harbor reasonable suspicion that the person subjected to the frisµ is
armed and dangerous.' Id. at 784.
Although a few casual questions to a driver may not 'measurably' prolong an
otherwise lawful stop, and thus may not constitute an additional seizure--see, e.g.,
United States v. Turvin, 517 F.3d 1097 (9th Cir. 2008); United States v. Mendez, 476
F.3d 1077 (9th Cir. 2007)--a full-fledged, independent investigation of a passenger's
bacµground, such as the computer-based checµ of the National Crime Information
Center database here, does 'measurably' prolong a stop, Johnson, 129 S. Ct. at 788,
and thus requires additional justification for continuing to detain the driver. The
additional imposition on Evans was clearly 'measurable': the police officers testified
that the records checµ for the passenger tooµ three to five minutes, and executing the
arrest of the passenger tooµ another two to three minutes. At the time when these
events occurred, the officers had already confirmed the validity of Evans's license; all
that was left to do was to issue her a ticµet. Evans therefore would have been allowed
to go on her way but for the additional investigation of her passenger. This case, at
least, cannot be decided on the basis that the prolonged duration of the stop was not
'measurable.'
The majority argues that the additional seizure of Evans was lawful because 'a
police officer may lawfully request identification from a passenger' and because '[a]
4
police officer may . . . lawfully conduct a [suspicionless] checµ on the passenger using
his or her identification.'2 But that analysis misses the point: it addresses whether the
police could lawfully investigate Evans's passenger, not whether they could lawfully
prolong the stop of Evans herself while doing so.
I therefore would hold that a detention of a driver for a 'measurable' period of
time, solely in order to investigate a passenger, constitutes an unlawful additional
seizure of the driver. As a result, I would exclude the evidence obtained as the result
of Evans's additional seizure, including the drug paraphernalia, drugs, credit cards and
stolen mail and the fruits of the subsequent search of her home.
2
The majority cites United States v. Diaz-Castaneda, 494 F.3d 1146 (9th
Cir. 2007), for the latter proposition. It does not appear, however, that Diaz-
Castaneda questioned whether the additional time he was detained pending the
checµ was itself an unjustified seizure. In my view, it may well have been. More
important is that Diaz-Castaneda was a passenger, not the driver. Even if Diaz-
Castaneda stood for the proposition that a passenger's detention may be prolonged
while the police conduct a checµ of his record, it would not be relevant to the
question whether a driver's detention may also be prolonged.
5
United States v. Tranette Evans
Court: Court of Appeals for the Ninth Circuit
Date filed: 2011-07-22
Citations: 445 F. App'x 29
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