United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 18, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
________________________
No. 02-40719
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALD BRIGHAM,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
Before JONES, WIENER, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Defendant-appellant Reginald Brigham appeals the district
court’s denial of his motion to suppress codeine seized during a
routine traffic stop from the rental car he was driving. He
contends that the investigating officer subjected him to a
prolonged detention in violation of his Fourth Amendment rights,
which tainted the officer’s subsequent consensual search. Because
we agree that Brigham was unlawfully detained, we reverse the
district court and remand for entry of judgment of acquittal.
BACKGROUND
Shortly after 4:00 P.M., on Sunday, May 14, 2000, while
turning his patrol car around on an overpass, Trooper Shannon
Conklin of the Texas Department of Public Safety saw Reginald
Brigham driving over a rise in the highway in the outside lane
following the vehicle in front of him too closely. Conklin decided
to pull over the vehicle, a late model Buick sedan, which contained
three young black males, and one young black female.
He approached the car at approximately 4:13 P.M. and asked
Brigham to produce his driver’s license and car registration and to
step out of the car and move back behind the car to an area in
front of the patrol vehicle. Brigham complied and gave Conklin his
driver’s license and a copy of the rental agreement for the car.
Conklin testified later that while reviewing the license and
rental contract, he immediately noticed that a fifty year old woman
had rented the car but was not present. Standing in the ditch in
front of the patrol vehicle, Brigham asked what the problem was and
Conklin explained that Brigham was following too closely and
Conklin thought the passenger in the front seat may not have been
wearing a seatbelt. Instead of promptly requesting a computer
check on the driver’s license or car’s papers, Conklin began to
question Brigham, asking him where he was coming from and the
purpose of his travel. Brigham answered that he had been in
Houston on pleasure and one of the passengers had visited family in
2
Houston. Conklin continued, asking Brigham which part of Houston
they had stayed in and where they had stayed. Brigham answered
that he did not know which part of Houston they had stayed in and,
after pausing for a moment, answered that they stayed at a La
Quinta Inn. Conklin asked which part of Houston the La Quinta was
located in, to which Brigham first replied that he was not sure and
then said he thought it was the North Highway 59 area. Conklin
then asked Brigham when he had arrived in Houston; Brigham said
Friday. Conklin persisted, asking Brigham to specify what time on
Friday he had arrived. Brigham responded that they had arrived
Friday morning. After three to four minutes of this questioning,
Conklin turned to the rental agreement and asked Brigham who had
rented the car. Brigham responded that his mother, Dorothy Harris,
had rented it. Conklin asked where she was; Brigham told him that
she was in Arkansas.
Conklin later testified that he became suspicious because (1)
the woman who rented the vehicle listed her age as 50 and thus
could not have been in the car, and (2) Brigham did not share the
same last name as the person who rented the car. Despite noticing
the renter’s age and last name, however, Conklin testified that he
did not notice that (1) the address on Brigham’s driver’s license
was the same as the address listed by Harris on the rental
agreement, or (2) at 50, Harris was of an age that she could be
Brigham’s mother. Conklin also testified that Brigham seemed
nervous, that his hands were shaking, and that he tended to answer
3
a question with a question.1
Continuing, Conklin asked Brigham to point out the passenger
who had family in Houston, and also asked if Brigham had any
weapons. Brigham appeared to indicate it was Franklin who had
family in Houston; Franklin was seated in the back seat. Brigham
also responded that he had no weapons. This was just after 4:17
P.M. Conklin remarked at the time that he wanted to find out in
which part of Houston the friend had family. Conklin approached
the car, asked Brandon Franklin to step out of vehicle and go in
front of the car off the shoulder and into the grass, and requested
Franklin’s driver’s license. The license, which turned out to be
fictitious, identified Franklin as Siracrease Brooks. Conklin
began to ask Franklin the same battery of questions that he had
asked Brigham. Conklin first asked where they were coming from.
Franklin responded that they had been in Houston and had gone to
see an Isley Brothers concert. Conklin asked when they went to the
concert; Franklin said Friday night. Conklin asked how long they
had been in Houston, and Franklin said they had been there a couple
of days. Conklin asked what day and time they had arrived.
Franklin initially said Friday late afternoon or evening, but then
1
The record in this case contains a videotape of the traffic
stop. Although Brigham’s responses on the videotape are slightly
unclear, there were only one or two instances where Brigham
answered a question with a question and both instances it appeared
Brigham did not understand Conklin’s question or could not hear the
question because of the traffic noise from the busy highway. The
videotape does not clearly show nervousness.
4
stated that he was not exactly sure of their arrival time. Conklin
continued by asking Franklin whether he stayed with friends or
family. Franklin said they had stayed at a hotel. Conklin asked
which hotel; Franklin said a La Quinta, as had Brigham. Conklin
asked how often Franklin went to Houston and whether he knew anyone
there. Franklin responded that he did not go there often and that
he knew “a couple of girls” in Houston that he had met at a college
function. Conklin never specifically questioned Franklin if he had
family in Houston.
Between 4:19 and 4:20 P.M., Conklin next approached the
vehicle and asked similar questions of the remaining two occupants,
Quincy Perry and the young female who had no identification.
Conklin asked where they were coming from, and whether the visit
was for business or pleasure. Perry responded that they had been
in Houston for pleasure. Conklin asked how long they had been
there, and Perry said a couple of days. Conklin asked which day
they had arrived, and Perry initially responded that they had
arrived Friday morning, but the woman suggested that perhaps it was
Saturday morning. Perry then stated that they had stayed one day
and two nights. When Conklin indicated that they could not have
arrived Saturday morning and stayed two nights, Perry seemed to
indicate that they had left home Thursday night and arrived in
Houston Friday morning.2
2
Unfortunately, the videotape conversation between the woman
and Perry is not completely clear. But after some confusion, they
5
Finally, at 4:21 P.M., after almost eight minutes of
questioning the driver and the three passengers about matters
unrelated to the traffic stop or the rental car, Conklin returned
to his patrol car to radio in the personal and rental car
identification information. Almost immediately, the dispatcher
reported that the rental car had not been reported stolen. Then
for nearly five minutes there was silence and no activity during
which Brigham stood in the ditch behind the rental car, Franklin
waited in the ditch in front of the rental car, the other
passengers remained in the rental car, and Conklin waited in his
patrol vehicle to hear back from his radio contact on the driver’s
licenses. While waiting, Conklin recorded orally on the videotape
a message to himself that (1) as to the rental agreement, the
subjects were not 25 years old nor listed on the rental agreement
(Harris had rented the car), (2) the subjects seemed nervous (hands
were shaking) and neither Brigham nor Franklin had made eye contact
with Conklin, (3) all four appeared to lack legal standing as to
the vehicle because they were not listed as authorized drivers, and
(4) they had conflicting stories about arrival time in Houston and
who they had visited there.
At 4:29 P.M., eight minutes after receiving radio contact from
Conklin, the dispatcher reported that (1) Perry and Brigham had
some criminal activity in their backgrounds, but their licenses
seem to indicate that they left Thursday night and arrived Friday
morning in Houston.
6
were clear and criminal details were unavailable, and (2) the
license Franklin offered was likely fictitious.
Then Conklin emerged from his car, and aggressively asked
Brigham what Franklin’s name and age was. After initially not
understanding Conklin’s question, Brigham responded that his first
name was Brandon, and thought his full name was Brandon Franklin.
Conklin then confronted Franklin. Franklin initially tried to
maintain the fake identity, but then admitted that his name was
Brandon Franklin. Then Conklin asked for Franklin’s wallet and
searched it but found nothing. Thereafter, around 4:33 P.M.,
Conklin called in the new identification and waived over a local
Nacogdoches police car for back-up. He briefed the local police
officers on the situation, and remarked that he was going to try to
get consent to search but would search the vehicle anyway because
none of the four had standing to protest.
After speaking to the local police, Conklin issued Brigham a
written warning for driving too close, which Brigham had to sign.
This was at 4:34 P.M. It is unclear from the videotape whether
Conklin returned Brigham’s driver’s license to him, but Conklin
testified at the suppression hearing that he returned the license.
The record is clear that Conklin launched into his consent to
search request immediately after Brigham signed the warning
citation. At about 4:35 P.M., twenty-one minutes after making
initial contact with Brigham, Conklin informed Brigham that one of
his jobs is to patrol for contraband. He asked for consent to
7
search, which Brigham gave. Conklin proceeded to pat down all the
car’s passengers, told Brigham to relax and wait over in the grassy
area of the ditch and told all the other passengers to step over to
the grassy area and sit-down; he later asked them not to talk to
each other. The local officers kept watch over Brigham and the
others while Conklin searched the passenger compartment and trunk
of the vehicle. In a cooler in the trunk, he opened a gallon-sized
opaque plastic fruit drink container, and saw and smelled what he
thought was codeine. The record indicates Conklin also found a
half empty soda bottle of codeine. At 4:43 P.M., Conklin with the
assistance of the local officers placed all the passengers under
arrest. After conducting further smell tests on the substance, he
concluded that the substance must be codeine, although later at the
suppression hearing he admitted to having never actually seized
codeine before.
Brigham was indicted for possession with intent to distribute
codeine, a controlled substance under 21 U.S.C. §841(a)(1). He
filed a motion to suppress the seized evidence, arguing that he had
been unlawfully detained in violation of the Fourth Amendment. The
district court held a suppression hearing, but denied the motion.
Brigham entered a plea agreement and made a plea of guilty,
conditioned upon his right to appeal the denial of his motion to
suppress, which was approved by the court. He was sentenced to two
months’ imprisonment and one year of supervised release. He timely
appealed.
8
DISCUSSION
Standard of Review
When addressing denials of motions to suppress, we review the
district court’s factual findings for clear error, and its
“ultimate conclusions on Fourth Amendment issues drawn from those
facts de novo.” United States v. Santiago, 310 F.3d 336, 340 (5th
Cir. 2002) (citation omitted). We also review the evidence
introduced at the suppression hearing in the light most favorable
to the prevailing party. Id. (citation omitted).
Standing
This appeal focuses on whether Brigham was unlawfully detained
during the traffic stop. Brigham has standing to contest this
seizure of his person. United States v. Dortch, 199 F.3d 193, 198
(5th Cir. 1999).
Reasonableness of the Detention
Brigham argues that Conklin’s seven to eight minutes of
questioning before beginning a computer check violated his Fourth
Amendment rights, because this initial questioning had nothing to
do with either the original reason for the stop (following too
closely), or any subsequent suspicions about whether the rental car
was stolen. Thus, the detention unreasonably extended the duration
of the traffic stop, and was not the least intrusive means of
resolving concerns about the rental contract. Brigham also
contends that Conklin unreasonably detained him after the computer
9
check on his drivers license and the rental car had come back clean
and he had signed the warning citation. Brigham argues that the
computer check as to the car and his license was finished, and thus
his detention beyond that point was unreasonable.
In response, the government argues that Conklin’s questioning
was a reasonable and minimally intrusive attempt to ascertain why
Brigham was driving a car not rented in his name. The government
contends that once Conklin confronted inconsistencies in the
stories of the car’s occupants, he had an additional reason to
continue the detention. Furthermore, the government argues, the
sequence in which Conklin conducted his investigation, questioning
first and computer check second, instead of questioning during the
computer check, is immaterial because Conklin would have discovered
Franklin’s false identification regardless, thereby giving the
officer reason to continue the detention. Finally, the government
points out that Conklin asked for consent to search the vehicle
before this additional computer check on Franklin was even
completed.
Our decisions have consistently relied on Terry v. Ohio to
establish a two prong test that governs the permissible scope of a
traffic stop. 392 U.S. 1 (1968). The reasonableness of the
detention depends on (1) “whether the officer’s action was
justified at its inception,” and (2) “whether it was reasonably
related in scope to the circumstances which justified the
interference in the first place.” Dortch, 199 F.3d at 198
10
(citation and internal quotation marks omitted). In this case, the
validity of the initial stop for driving too closely behind another
vehicle is not contested on appeal.
In applying the second prong of Terry, we have consistently
recognized that “‘an investigative detention must be temporary and
last no longer than is necessary to effectuate the purpose of the
stop.’” Id. at 200 (quoting Florida v. Royer, 460 U.S. 491, 500
(1983)). The Supreme Court has further explained that “the
investigative methods employed should be the least intrusive means
reasonably available to verify or dispel the officer’s suspicion in
a short period of time.” Florida v. Royer, 460 U.S. 491, 500
(1983) (citations omitted). Nonetheless, the Supreme Court has
counseled that such least intrusive means must be balanced against
the law enforcement purposes of the stop and “the time reasonably
needed to effectuate those purposes.” United States v. Sharpe, 470
U.S. 675, 685 (1985) (citations omitted). Finally, when evaluating
whether there was reasonable suspicion sufficient to justify an
extended detention, we “look at the totality of the circumstances
and consider the collective knowledge and experience of the
officers involved.” United States v. Jones, 234 F.3d 234, 241 (5th
Cir. 2000) (citing United States v. Holloway, 962 F.2d 451, 459 &
n.22 (5th Cir. 1992)).
The primary law enforcement purposes for making a traffic stop
of a moving vehicle on a public highway are: (1) to verify that a
violation of the traffic laws has occurred or is occurring and, (2)
11
to provide for the issuance of an appropriate ticket or citation
charging such traffic violation or make an arrest of the driver
based upon such violation. In furtherance of these purposes, the
police officer is authorized to require the driver of the vehicle
to produce a valid driver’s license and documentation establishing
the ownership of the vehicle and that required public liability
insurance coverages are in effect on such vehicle. During the
process of such a traffic stop, the police officer making the stop
may and should use his senses of sight, smell and hearing to
observe any other conduct or activity which might constitute a
violation of any other criminal statute, but the officer must be
able to articulate the specific facts and circumstances which
prompt him to be suspicious of other criminal conduct before he
initiates any actions to investigate such other conduct.
On more than one occasion in recent years, we have had the
opportunity to evaluate traffic stops in which the car is rented
and the driver is not listed on the rental agreement. From these
cases it is clear that any detention beyond the completion of a
computer check is unlawful unless there is additional “reasonable
suspicion supported by articulable facts that a crime has been or
is being committed.” Santiago, 310 F.3d at 342 (citations
omitted).
It is established that when a valid traffic stop occurs, the
officer may run a computer check on the driver’s license and
registration or rental car papers. Dortch, 199 F.3d at 198; United
12
States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993). Furthermore,
in Shabazz, we permitted questioning, even if unrelated to the
purpose of the stop, that took place while the officers were
waiting for the results of the computer check, because such
questioning did not prolong the time of the initial valid seizure.
993 F.2d at 436-37. In United States v. Dortch, however, we
concluded that once the computer check is completed and there is no
warrant for arrest of the driver or report that the car was stolen,
reasonable suspicion of auto theft vanishes and any further
detention becomes an unlawful seizure. 199 F.3d at 199.
Similarly, in United States v. Jones, we concluded that the
additional three minutes of prolonged detention after the computer
check came back clean violated the Fourth Amendment. 234 F.3d at
241. Finally, in United States v. Santiago, we reiterated our
position that once an officer has completed his computer check and
it comes back negative, thereby dispelling the suspicion that
justified the check, any additional detention is unreasonable. 310
F.3d at 342.3
3
Although Judge Jones in her dissent suggests that the
Dortch, Jones, and Santiago line of cases was incorrectly decided,
this Circuit has not agreed with her assessment. In neither Dortch
nor Jones was there even a call for a vote to rehear the case en
banc. In Santiago the mandate was held and a poll for en banc
reconsideration was taken, but a majority of the active judges of
this Circuit voted not to rehear the case and on March 20, 2003, a
denial of rehearing en banc was issued. Therefore, our reliance on
these cases as the law of this Circuit concerning the
reasonableness of a traffic stop is not only appropriate but
required.
13
As the government has been quick to highlight, the facts of
this case differ from those of Dortch, Jones and Santiago as to the
timing of the computer check. In Dortch, two highway patrol
officers stopped Cecil Dortch for driving too closely to a tractor
trailer. 199 F.3d at 195. The officers discovered that the car
was rented and that Dortch was not listed as an authorized driver.
Id. One officer immediately took Dortch’s driver’s license and
rental contract to perform a computer check, while the other
officer questioned Dortch and the passenger about their business.
Id. at 196. They gave inconsistent answers about Dortch’s
relationship to the vehicle’s renter, and stated that they had been
in Houston for two days although the rental agreement indicated
that the car had been rented in Pensacola, Florida the day before.
Id. After the computer check came back clean, the officers
continued to detain and question Dortch until a canine search unit
arrived. Id. Even though the officers eventually discovered drugs
on Dortch’s person, we ultimately held that this detention violated
the Fourth Amendment.
In Jones, two police officers pulled over Jones and Daniel for
speeding. 234 F.3d at 237. Like Dortch, Daniel was driving a
rental car rented by a third person, and Daniel was not listed as
an authorized driver. Id. The officers questioned Jones and
Daniel extensively about their business. Id. at 237-38. The
officers first took Daniel to the patrol car, ran a computer check
on his criminal history, and continued questioning him about the
14
nature of the trip. Id. The second officer then approached Jones
to question him about Daniel’s business dealings, and requested
Jones’s license to do a similar computer check. Id. at 238. After
a few minutes, the dispatcher reported that neither Jones nor
Daniel had a criminal history. Id. Notwithstanding this
information, one officer continued to question Jones when returning
his driver’s license, and then asked Daniel for consent to search
the vehicle, without having returned the rental agreement or his
license to him. Id. Even though the request to search occurred
only three minutes after the negative computer check was completed,
we still held the prolonged detention to be unlawful.
Finally, in Santiago, the officer pulled over Santiago because
he noticed a flashing light in Santiago’s windshield. 310 F.3d at
337. Once the officer stopped the car, he noticed that it was a
trinket hanging from the rear view mirror. Id. at 337-38. The
officer asked Santiago to exit the car, and proceeded to question
him about the nature of his trip and the identity of the woman in
the passenger seat. Id. at 338. The officer then approached the
vehicle and asked the woman for her driver’s license and the car’s
registration, which Santiago had said was in the car. Id. The
trooper returned to Santiago with the woman’s license, but without
the registration, which Santiago subsequently retrieved from the
car. Id. In the belief that the trinket hanging from the rear
view mirror violated a state statute, the officer conducted a
computer check on Santiago’s license and registration. Id. After
15
the checks came back negative, the officer continued to question
Santiago about the car’s registration. Id. at 339. Before
allowing Santiago to leave, he asked for and obtained consent to
search, from which he discovered drugs. Id. As in Dortch and
Jones, however, we found this detention unlawful because it
extended beyond the negative computer check.
Nevertheless, the completion of a computer check is not the
exclusive dividing line between constitutional and unconstitutional
detention. Ultimately, as the Supreme Court has reiterated, the
“scope of the detention must be carefully tailored to its
underlying justification.” Royer, 460 U.S. at 500. Although mere
questioning may not violate the Fourth Amendment, that “is not to
say that questioning is unrelated to the determination that a
detention has exceeded its lawful duration.” Shabazz, 993 F.2d at
436. We have concluded that “questioning unrelated to the
justification for the stop that extends the duration of the stop
violates the Fourth Amendment.” United States v. Machuca-Barrera,
261 F.3d 425, 432-33 n.21 (5th Cir. 2001) (citing Shabazz, 993 F.2d
at 437). In such circumstances, the scope of the detention exceeds
the underlying justification and thus is unconstitutional.
To determine whether questioning is unrelated to the purpose
of a stop, we must examine the identifiable reasonable suspicion
that justified the detention. An officer may take the time
necessary to investigate such reasonable suspicion, but when his
questioning extends beyond that reasonable suspicion, and it
16
lengthens the duration of the stop, the detention is unreasonable.
The linchpin for analyzing the reasonableness of a detention,
therefore, is the scope of reasonable suspicion, i.e., the
reasonable suspicion that justified the detention, rather than the
completion of a computer check.
Our case law abundantly demonstrates the focus we have placed
on the scope of reasonable suspicion in deciding whether a
detention was lawful. Dortch, Jones and Santiago emphasized that
the circumstances surrounding the respective detentions, in keeping
with the totality of the circumstances approach which is applied,
permitted only a reasonable suspicion of a stolen car.4 The Dortch
court concluded that suspicious and inconsistent answers, Dortch’s
alleged nervousness, confusion as to the relationship of Dortch to
the vehicle’s renter, and Dortch’s absence as an authorized driver
on the rental contract “gave rise only to a reasonable suspicion
that the car might have been stolen.” 199 F.3d at 199. None of
this evidence, the Court held, created a “reasonable or articulable
suspicion that Dortch was trafficking in drugs.” Id. Similarly in
Jones, we concluded that inconsistent answers about the driver’s
employment and the driver’s acknowledgment that he had been
arrested previously on a crack cocaine charge were “at best
trivial” grounds for reasonable suspicion of drug trafficking, and
4
The factual circumstances of Santiago also may have
permitted reasonable suspicion of the abduction of the children
that were in the car. 310 F.3d at 342.
17
even less suggestive than the evidence put forward in Dortch. 234
F.3d at 241-242. In Santiago, we concluded that extreme
nervousness, potentially inconsistent stories between Santiago and
his female passenger, and other possibly suspicious answers did not
establish “reasonable or articulable suspicion that Santiago was
trafficking in drugs . . . .” 310 F.3d at 338-39, 342 (citing
Dortch and Jones to similar effect). Because the only permissible
reasonable suspicion was dispelled when the computer checks came
back, we found any additional detention unlawful. Finally, to
confirm that the permissible scope of reasonable suspicion, and not
the computer check, guides our reasonableness analysis, we even
have held that detaining someone until the completion of a computer
check can unreasonably prolong detention. In United States v.
Valadez, we concluded that once the police determined that the
vehicle’s window tinting was legal (the reason for the stop), there
was no reason to detain the defendant further, not even to wait for
the completion of a computer check on his license. 267 F.3d 395,
396, 398 (5th Cir. 2001). In short, we have strictly limited the
scope of the detention to the identifiable reasonable suspicion
that originally justified the stop.
In this case, the justification for the stop, driving too
closely, permitted Conklin to require Brigham to show his driver’s
license and the car’s papers. Dortch instructs that, upon noticing
that Brigham was not authorized to drive the rental vehicle and
that the renter of the vehicle was not present, Conklin then had a
18
valid reasonable suspicion about whether the car was stolen.5 Any
suspicion of drug trafficking, however, was not warranted.
Conklin’s methodology, questioning unrelated to the traffic
violation for eight minutes before commencing the computer check,
is merely an impermissible variation on the same Dortch/Jones tune:
If a stop is unconstitutionally prolonged by continued questioning
after a computer check is complete, then delaying the commencement
of the computer check and asking unrelated questions during such
delay is equally proscribed. Conklin certainly prolonged the
detention, as he could have (and should have) started the computer
check before beginning his extensive questioning. The fact that
the prolongation is caused by ex ante rather than post hoc
questioning matters not.
There is ample evidence that (1) Conklin’s initial questioning
served drug interdiction purposes rather than the purpose of
determining whether the rental car was stolen,6 and (2) such
5
In our view the “simplest, quickest and least intrusive
means” to satisfy an officer’s suspicion that a vehicle might be
stolen is to immediately run a computer check on the vehicle’s
license plate to see if it has been reported stolen. If it has,
the officer has probable cause to arrest the driver and occupants
for possession of a stolen vehicle and to search the vehicle
consequent upon such arrest. If the vehicle has not been reported
stolen, the officer’s suspicions, based on facts like those in this
case, can no longer justify extension of the stop to investigate
that suspicion.
6
We note that at one point on the videotape immediately
before he asked Brigham for consent to search, Conklin told Brigham
that one of his “jobs is to patrol for contraband.” Likewise, in
a conversation which Conklin had with the local police officer on
19
questioning was simply unrelated to the scope of the stop, thereby
unreasonably prolonging the detention. When Conklin received
Brigham’s license and the rental contract, he had valid reason to
wonder whether the car might have been stolen. He testified that
he quickly realized that the woman who rented the car was not
present; but he failed to notice that the address on Brigham’s
license and the address of the renter were identical, even though
Brigham had identified the renter as his mother. And although
Conklin noticed that the renter, Harris, was 50 years old, and that
Brigham was under 25 years old, the officer did not recognize that
Harris was an appropriate age to be Brigham’s mother. In short,
the data plainly in front of Conklin was that (1) Brigham was not
authorized to drive the car, (2) Harris was not present,
(3) Brigham and Harris shared the same address, and (4) the age
difference between Harris and Brigham was characteristic of a
parent-child relationship, which was the information given in
response to Conklin’s question.
Rather then ask Brigham more about the rental agreement,
however, Conklin launched into a series of unrelated questions
about the particulars of Brigham’s trip. When Conklin finally did
ask who had rented the vehicle, and Brigham responded that it was
the videotape, he advised that local officer that he was going to
“try to get consent to search, but would search anyway because none
of the occupants had standing to protest.” A search of a vehicle
if you suspect the presence of drugs might make some sense; a
search of a vehicle if you suspect the vehicle is stolen has
virtually no likelihood of finding anything relevant.
20
his mother, it was proper for Conklin to notice, for whatever it is
worth, that they did not share the same last name. It was a
significant oversight, however, to fail to notice that the
addresses of both persons and their age differences corroborated
Brigham’s answer. Instead of questioning whether Brigham’s mother
had given him permission to use the car and quizzing Brigham on
personal information put down by Harris on the agreement, questions
that might have resolved whether Harris was really Brigham’s
mother, or simply doing a computer check on his license and on
whether the car was reported stolen, Conklin then approached each
of the other passengers seriatim and repeatedly posed the same
battery of unrelated questions to each of them. Rather than ask
the passengers about Brigham, how he had gotten the car, and who
Dorothy Harris was, Conklin asked each passenger the same detailed
questions about their trip. We cannot perceive how identifying the
hotel at which they stayed in Houston was more likely to uncover
whether the car was stolen than questioning them about the
vehicle’s renter and how Brigham had obtained the car.
Furthermore, our review of the record in this case indicates
that the stories of Brigham and his companions were more consistent
than inconsistent. All persons Conklin questioned told him they
were on a trip for pleasure and were coming back from Houston. In
addition, the two individuals Conklin asked about lodging (Brigham
and Franklin) told him that the group had stayed at a La Quinta
Inn. Third, the stories they gave as to the time of arrival in
21
Houston were only marginally inconsistent. Brigham told Conklin
that they had arrived Friday morning; Franklin indicated that they
had arrived later on Friday, but then said he was not exactly sure
what time on Friday they had arrived; and after some confusion
between the other two passengers, they indicated that they had
arrived Friday morning. Thus, all the car passengers put their
arrival in Houston at some time on Friday. The only fairly likely
inconsistency resulted when Conklin asked Brigham and Franklin who
they knew in Houston: Brigham said they knew family of Franklin’s,
but Franklin said he knew “a couple of girls” there and never
denied having family in Houston.
The government argues that the initial period of questioning
is immaterial because Conklin also could have begun the computer
checks immediately, and questioned the defendant and other
passengers while the checks were running. Assuming that Conklin
would otherwise have conducted the stop the same way, the
government’s argument continues, he would have discovered
Franklin’s false identification, giving him adequate reason to
extend the detention, and then ask for consent to search the
vehicle. In its brief, the government points out that the facts of
Jones illustrate a similar pattern of questioning before the
computer check, and argues that our lack of criticism of this
method in Jones supports its reasonableness here. Our opinion in
Jones, however, shows fairly clearly that we found the facts of
that case most analogous to Dortch, because both cases involved
22
detention after the completion of a computer check. Based on such
similarities with recent precedent, there was simply no need to
scrutinize the questioning that occurred before the computer check.
Additionally, it is true that a police officer may run a computer
check on a driver’s driver’s license and registration or insurance
papers. Shabazz, 993 F.2d at 437; Dortch, 199 F.3d at 198. It is
less clear, however, whether police may run checks on passengers’
licenses.7 We need not, and therefore do not, decide that issue in
this case because instead we are able to conclude that the pre-
computer check questioning made the detention unreasonable. In
Jones, the court did not have to directly address this issue
because the defendants appeared to concede that the police could
request and run a computer check on both defendants’ licenses. 234
F.3d at 240.
Nonetheless, even considering Franklin’s fake identification
as a factor, the government’s argument misses the whole point.
Although it may be true that Conklin could have used a method that
7
Our search of the statutes of the State of Texas failed to
turn up any statutory provision which requires a passenger in a
vehicle to carry his driver’s license or any other type of
identification so long as he is just a passenger. Likewise, we
found no statutory provision which would attribute liability to a
passenger for a traffic violation committed by the driver, such as
“following too close” in this case. We have doubts therefore that
the reason for the initial traffic stop (i.e., following too close)
in this case gives the trooper any ground for suspicion of criminal
conduct on the part of a passenger. If a police officer arrests an
individual, that person is required to give his true name,
residence address and date of birth to the arresting officer. See
Texas Penal Code § 38.02. None of the passengers in the vehicle in
this case were arrested at the time of the initial traffic stop.
23
is less open to criticism, the fact remains that he failed to use
the least intrusive means. The Supreme Court has firmly stated
that “an investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop.
Similarly, the investigative methods employed should be the least
intrusive means reasonably available to verify or dispel the
officer’s suspicion in a short period of time.” Royer, 460 U.S. at
500. It is true that Conklin could have collected Brigham’s
license and rental car papers to run them through a computer check,
and then questioned Brigham and his companions while this check was
being run, but this only illustrates that Conklin’s actual conduct
was not the “least intrusive means reasonably available.” Here
Conklin took an extended amount of time to ask unrelated questions
which made the detention unreasonable.
We also recognize that some of our previous cases discussing
the reasonableness of a detention focused on the impermissible
questioning that occurred toward the end of a traffic stop. In
Shabazz, we noted that “the nature of the questioning during a
later portion of the detention may indicate that the justification
for the original detention no longer supports its continuation.”
993 F.2d at 436. In Dortch, Jones and Santiago, moreover, our
emphasis was on questioning that took place after the computer
checks returned. Although this case concerns a period of
questioning that occurred before the computer check, we see no
principled distinction between the circumstances here and those
24
that have come before. We cannot countenance an effective end-run,
even if inadvertent, around our recent precedent, which extensive
pre-computer check questioning on matters unrelated to the
justification for the stop ultimately achieves. Obviously, if a
police officer is prohibited from extending questioning beyond the
computer check on matters outside the scope of permissible
reasonable suspicion, he is equally prohibited from burning such
time and intruding in such a way to investigate an impermissible
reasonable suspicion before he initiates the check. Otherwise, the
officer could easily and completely circumvent the constitutional
guarantees afforded to individuals detained during traffic stops
simply by embarking on such questioning before the check rather
than afterwards. Regardless of when these questions are posed, if
they are unrelated to the reason for the which the traffic stop was
made (here “following too closely”) or to the suspicion that the
driver is wanted or the car was stolen, and they extend the
duration of the stop, the detention becomes unlawful.
Finally, holding that this type of detention is reasonable
likely would put at risk a large segment of the population for
reasonable suspicion of drug trafficking and concomitantly the same
type of intrusive detention that occurred in this case. In Dortch,
we recognized that upholding the officer’s conduct would be
tantamount to finding that “officers have reasonable suspicion to
suspect drug trafficking anytime someone is driving a rental car
that was not rented in his name.” 199 F.3d at 199. The same
25
conclusion can be drawn here: Upholding the prolonged, extensive
questioning in light of the dearth of evidence that Trooper Conklin
had at his disposal before a computer check was even initiated
would seem to allow police to suspect drug trafficking or other
illegal activity of anyone who is driving a car registered to
someone who is not present in the vehicle or who has a different
last name. It would not appear to matter whether the driver is
operating a car rented in another’s name or owned in another’s
name; the police would still be confronted with a driver’s license
and registration and insurance papers that do not match up.8
Deciding this case as the government requests would effectively
permit the police to ignore the explanation given by the driver,
and such corroborating evidence as having the same address, so as
to pursue prolonged questioning and develop further reasons to
detain —— a quintessential fishing expedition.
We do not imply that questions like those asked by Trooper
Conklin are themselves off limits to police officers conducting
traffic stops. Under other circumstances, such as while awaiting
a report from a timely initiated computer check, we have allowed
these types of questions in previous cases. Neither do we want to
put ourselves in a position that forces us constantly to second-
guess the sequence of police questioning. See Dortch, 199 F.3d at
8
This group potentially includes all children who drive a
parent’s car but have a different last name than that parent, a
spouse who drives a car registered to a spouse whose last name he
or she does not share, and anyone who borrows a car from a friend.
26
200 (finding that courts “‘should not indulge in unrealistic
second-guessing’ of the methods employed by the officers on the
scene”) (citing United States v. Sharpe, 470 U.S. 675, 686 (1985)).
In this case, however, Conklin’s questioning indisputably extended
Brigham’s detention, yet was at best unrelated to the permissible
scope of his reasonable suspicion and at worst illustrated his
suspicions of drug trafficking or illegal activity other than a
stolen car or a driver with “wants and warrants.” The evidence
before Conklin, in conjunction with the narrow scope of his
detention to investigate whether the car was stolen, did not
justify questioning that unlawfully prolonged Brigham’s detention
in violation of the Fourth Amendment. See Sharpe, 470 U.S. at 686-
87 (stating that detention is unlawful when “police act[]
unreasonably in failing to recognize or to pursue [alternative
means to a seizure,]” not simply when a judge is able to conceive
of other alternatives).
Validity of Brigham’s Consent
It is well established in this Circuit that “[c]onsent to
search may, but does not necessarily, dissipate the taint of a
[F]ourth [A]mendment violation.” United States v. Chavez-
Villarreal, 3 F.3d 124, 127 (5th Cir. 1993). To show valid consent
after an unlawful detention, the government has the heavier burden
of establishing that (1) “consent was voluntarily given,” and
(2) such consent “was an independent act of free will.” Id.
27
Normally, the district court’s conclusion as to the
voluntariness of consent is a finding of fact based on a totality
of the circumstances, which we only review for clear error.
Shabazz, 993 F.2d at 438. The district court concluded, in light
of the available evidence, that Brigham’s consent was voluntary.
Given the deferential standard of review from which we operate, we
cannot conclude that the court was clearly erroneous. Because the
district court in this case did not find an unlawful detention,
however, it did not consider the second prong of the analysis ——
whether consent was an independent act of free will. As a result,
we owe no special deference when determining whether consent was an
independent act of free will. See Dortch, 199 F.3d at 201-02.
In determining the validity of consent after illegal
detention, the second prong focuses on the “causal connection with
the constitutional violation” and requires examination of three
factors “[t]o determine whether the causal chain was broken . . .
.” Chavez-Villarreal, 3 F.3d at 127-28. We consider: “(1) the
temporal proximity of the illegal conduct and the consent; (2) the
presence of intervening circumstances; and (3) the purpose and
flagrancy of the initial misconduct.” Id. at 128.
First, there is some evidence that the temporal proximity
between the illegal conduct and consent in this case is not as
close as it was in Jones and Dortch. Between the intrusive
questioning and Brigham’s later consent was a period of at least
ten minutes during which Conklin conducted a computer check and
28
Brigham waited on the side of the road. This span of time,
however, did not mitigate the violation. Indeed, the period
subsequent to Conklin’s initial questioning exacerbated the taint
of the illegal conduct. The entire prolonged detention, which
included the initial questioning and the computer check, did
immediately precede Brigham’s consent. Brigham was still outside
of his car and local Nacogdoches police had arrived to back up
Conklin when Conklin asked for consent. Finally, Conklin appeared
to become more aggressive upon discovery of Franklin’s fake
identification. Thus, even though Brigham’s actual consent
occurred over ten minutes after the initial questioning, none of
the interceding events would have given him any basis for believing
that he was free to leave.
Second, as described above there were no intervening
circumstances between the detention and the consent such that
Brigham would have sensed he could leave. Conklin never informed
Brigham that the check on the car and his license had come back
clean, he intensified his demeanor as the stop wore on, and the
local police arrived as back-up. In short, Brigham was still
detained when Conklin requested consent to search the vehicle. In
fact, for the entire duration of the stop up until the search,
Brigham was away from the rental car and next to the patrol
vehicle, while Franklin was in front of the rental car off into the
ditch, and the other passengers were in the car. After asking for
consent, Conklin patted down Brigham and instructed Brigham to wait
29
off in an area behind the rental car. Brigham and the other
passengers were watched by the local police officers and at one
point told not to speak to each other.
Third, the purpose and flagrancy of the initial misconduct is
fairly transparent. We have already recognized that even when an
officer’s purpose cannot be known, his intentions may be gleaned
from the record and videotape. Dortch, 199 F.3d at 202. In this
case, there is even less of an inferential leap than was required
in Dortch. Conklin’s immediate questioning of Brigham was
completely unrelated to determining why Brigham had a rental car he
was not authorized to drive or to the purpose of the stop, which
was following too closely and a possible seatbelt violation.
Conklin overlooked fairly obvious indications, e.g., that Brigham
and Harris shared the same address, which suggested Brigham was
telling the truth. He persisted in intrusive questioning of all
the other passengers about matters that were not related to how
Brigham came into possession of the rental car. Finally, before he
learned about Franklin’s fictitious license, he noted that it was
probable none of the passengers had standing to contest a search;
and later he elaborated on this thought by remarking that because
there was no standing he would probably search even if Brigham did
not consent.
In sum, after evaluating these three factors, we conclude that
Brigham’s consent was not an independent act of free will. As a
result, his subsequent consent does not cure the Fourth Amendment
30
violation.
CONCLUSION
Having carefully reviewed the record of this case, the
parties’ respective briefing and arguments, for the reasons set
forth above, we vacate Brigham’s conviction and sentence and remand
for entry of a judgment of acquittal.
ENDRECORD
31
EDITH H. JONES, Circuit Judge, dissenting:
I respectfully dissent. Based on their own appellate
fact finding, the majority have further narrowed what our court
permits as law enforcement activity during traffic stop detentions.
See United States v. Santiago, 310 F.3d 336 (5th Cir. 2002); United
States v. Jones, 234 F.3d 234 (5th Cir. 2000); United States v.
Dortch, 199 F.3d 193 (5th Cir. 1999). Although the majority’s
holding is far from clear, its import seems to be that if a law
enforcement officer’s questions to vehicle occupants may be
construed as serving “drug interdiction purposes”, and the
questions occur before he runs computer checks on the ownership of
the vehicle and the occupants’ identifications, the scope and
length of the detention are unconstitutionally prolonged.
This is new territory indeed. Dortch and Jones rigidly
applied the rule that a prolonged detention after the completion of
a traffic stop may be unconstitutional. In both those cases,
however, the officers asked vehicle occupants nearly the same
series of questions that were posed here, yet this court never
criticized the questions. Jones, 234 F.3d at 237; Dortch, 199 F.3d
at 195-96. The district court analyzed this case according to
Dortch and Jones and found no inconsistency. The majority now
states, on one hand, that in a “legitimate traffic stop,” the
officer may investigate the occupants’ right to possess the
32
vehicle, but on the other hand, the questions asked here somehow
went beyond that purpose. In any event, according to the majority,
the investigation did not use the least intrusive means, since the
officer might have asked the very same questions during the
computer check of occupants’ identifications, but instead chose to
ask those questions before the check began; the detention was thus
unconstitutionally prolonged by his inefficiency.
So many problems arise from this opinion that one
scarcely knows where to start listing them. First, the panel
majority is wrong in asserting that Trooper Conklin’s methodology
made an “end-run” around Dortch and Jones. The majority opines
that Trooper Conklin should have questioned Brigham and his
companions while conducting the computer records check, and that
“delaying the commencement of the computer check and asking
unrelated questions during such delay [are] equally proscribed.”
In Jones, the officer questioned the vehicle occupants for seven
minutes before initiating a computer check. 234 F.3d at 237. Yet
no criticism of that aspect of police activity appears in this
court’s opinion.
Further, the majority’s conclusion contradicts the
holding of this court in United States v. Roberson, 6 F.3d 1088
(5th Cir. 1993). In Roberson, a state trooper pulled over a
minivan for failure to signal a lane change. Id. at 1089. After
the car pulled over, the state trooper approached the vehicle and
33
instructed McCleod [the driver] to produce her driver’s
license, registration, and proof of insurance. McCleod
informed him that the car was leased by a third party and
produced a copy of the lease agreement. The lease to one
Cheryl Allen did not identify McCleod as an authorized
driver and the lessee was not among the passengers.
Trooper Washington began to suspect that the vehicle
might have been stolen. At this point, McCleod
volunteered that she was a friend of Allen and that Allen
was in St. Louis. McCleod claimed to be returning home
after taking her mother to her grandmother’s home in
Houston.
Trooper Washington then asked the passengers for
identification. Roberson [a passenger] could not produce
a driver’s license, but claimed responsibility for the
car, stating that Allen had loaned it to him. Roberson
told the trooper that Allen was still in Houston and
would be returning to St. Louis in another vehicle. His
suspicion further aroused, Trooper Washington decided to
call Deputy David Deter for backup.
Id. at 1089-90. After Deputy Deter arrived, the officers asked the
driver her grandmother’s phone number and address. Id. When the
driver was unable to answer, the officers asked for consent to
search her car. After receiving consent, the officers discovered
6.99 kilograms of cocaine. The court concluded that such
questioning, which appears to be virtually identical to the
questioning performed by Trooper Conklin, neither impermissibly
prolonged the detention nor vitiated the driver’s consent to
search. Id. at 1092-93 (citing United States v. Shabazz, 993 F.2d
431, 437 (5th Cir. 1993) and Schneckloth v. Bustamonte, 412 U.S.
218 (1973)).
34
Not only does the majority’s decision conflict with the
prior precedent of this circuit, but it also conflicts, or at least
is in tension with, the precedent of at least five other circuits.
United States v. Burton, 2003 U.S. App. Lexis 13426 at *12-14 (6th
Cir. July 2, 2003) (holding that asking questions of the driver of
a car being ticketed for illegal parking that were unrelated to the
issuance of the citation was permissible); United States v.
Gregory, 302 F.3d 805, 809 (8th Cir. 2002) (holding that
questioning of driver and passenger regarding identity and travel
plans prior to running computer check was reasonable for Fourth
Amendment purposes), cert. denied, 123 S. Ct. 1815 (2003); United
States v. Childs, 277 F.3d 947, 954 (7th Cir.) (en banc) (stating
that brief questioning unrelated to traffic stop that occurred
prior to commencement of computer check did not unconstitutionally
prolong detention), cert. denied, 123 S. Ct. 126 (2002); United
States v. Sowers, 136 F.3d 24, 27-28 (1st Cir. 1998) (affirming
denial of suppression motion where officer engaged in questioning
of driver and passenger regarding the “extent, purpose, and details
of their travels” prior to running computer check); United States
v. Hardy, 855 F.2d 753, 757 (11th Cir. 1988) (affirming denial of
suppression motion and noting that fifteen minutes of questioning
regarding travel plans and travel history prior to running computer
check was part of investigation of the traffic violation).
35
Second, the majority finds, without citing a shred of
record support and without any support from the district court’s
findings, that Trooper Conklin’s questions about the Brigham
party’s trip were for “drug interdiction purposes.” This de novo
fact finding is contrary to two principles: we are bound, absent
clear error, by the district court’s findings of fact in
suppression cases, and on appeal, we are to review the findings in
the light most favorable to the prevailing party, here, the
government. Jones, 234 F.3d at 239. The district court found
that:
Trooper Conklin’s detention of Defendants was reasonably
related to the circumstances which justified the
interference in the first place. Trooper Conklin was
entitled to ask Brigham for his license and registration.
See Shabazz, 993 F.2d at 437. Upon examining the rental
contract and discovering that the only person authorized
to drive the vehicle was not in it, it was reasonable for
the Trooper to briefly question why Brigham, an
unauthorized driver pursuant to the terms of the rental
contract, was in the car. Trooper Conklin justifiably
became suspicious when Franklin told him Defendants had
gone down to Houston for an Isley Brothers concert and
that he knew a couple of girls (but made no mention of
family in Houston when the Trooper asked him if he knew
anyone else in Houston), whereas Brigham had told him
that they were visiting Franklin’s family. Defendant
Perry’s explanation was inconsistent with both the
explanation offered by Brigham and that offered by
Franklin. The absence of the authorized driver, the
inconsistent explanations as to the trip to Houston, and
Franklin’s presentation of a fictitious I.D., taken
together, justified Trooper Conklin’s continued detention
of Defendants. Accordingly, Defendants’ motions to
suppress evidence on the basis that their detention
exceeded the reasonable scope of the stop’s original
purpose are denied.
36
The majority, without explanation, discredits these findings to
which this court should defer.
Even on its own terms, the majority’s finding makes
little sense, as the trooper’s line of questioning was obviously
germane to investigating Brigham’s right to possess the vehicle and
to many other benign or law enforcement-related purposes.
The Fourth Amendment grants an officer conducting a
routine traffic stop latitude to check the driver's
identification and vehicle registration, ask the driver
to step out of his vehicle and over to the patrol car,
inquire into the driver’s destination and purpose for the
trip, and “undertake similar questioning of the vehicle's
occupants to verify the information provided by the
driver.”
Gregory, 302 F.3d at 809 (quoting United States v. Linkous, 285
F.3d 716, 719 (8th Cir. 2002)). Thus, Trooper Conklin’s
questioning was fully within the boundaries of the Fourth Amendment
based upon his having probable cause to believe that a traffic
violation occurred. But even if one does not accept this basis for
the questioning, there exists an alternative basis supporting the
questioning. The majority concedes that, in light of Dortch,
Trooper Conklin had a reasonable suspicion that the car was stolen
prior to his questioning of Brigham and his passengers. Majority
Opinion at 19. This court has previously found questioning almost
identical to Trooper Conklin’s to be permissible where the officer
had a reasonable suspicion that the car was stolen. See Roberson,
6 F.3d at 1092-93 (finding questioning identical to questioning in
37
this case permissible based on a reasonable suspicion that the car
was stolen).
Third, even if drug interdiction was Trooper Conklin’s
motivation for asking the questions, his motivation is wholly
irrelevant for Fourth Amendment purposes. The majority’s reasoning
flies in the face of Whren v. United States, which held that Fourth
Amendment activities must be judged in light of the objective facts
rather than law enforcement officers’ subjective motives. 517 U.S.
806, 812-13 (1996).
Fourth, the majority equates the failure of Trooper
Conklin to employ the “least intrusive means” of investigation with
unreasonableness for purposes of the Fourth Amendment. There is no
doubt that law enforcement officers may both question the occupants
of a vehicle which is stopped for reasonable suspicion as well as
for engaging in traffic violations, and may perform computer
records checks of the vehicle and its occupants. Shabazz, 993 F.2d
at 437. The majority holds, as a constitutional matter, that these
activities must be done simultaneously, not seriatim, in order for
an investigation to be performed via the least intrusive means.
But it does not follow that failing to use the “least
intrusive means” of investigation is per se constitutionally
unreasonable. In fact, so to hold conflicts with the precedent of
this Circuit. This Court has stated that:
The fact that the protection of the public might, in the
abstract, have been accomplished by ‘less intrusive’
38
means does not, by itself render the search unreasonable.
The question is not simply whether some other alternative
was available, but whether the police acted unreasonably
in failing to recognize it or to pursue it.
United States v. Sanders, 994 F.2d 200, 204 (5th Cir. 1993)(Wiener,
J., joined by Barksdale and DeMoss, JJ.) (quoting United States v.
Sharpe, 470 U.S. 675, 687 (1985)). Thus, the question before this
court, properly framed, is whether it was unreasonable for Trooper
Conklin to engage in a line of questioning for eight minutes prior
to running a computer check rather than asking the very same
questions during the computer check (which the majority concedes
would be permissible). In my mind, the answer to this question is
unequivocally “no.”
Here the entire investigation was directed to the
concededly legitimate purpose of enforcing the traffic laws. See
Gregory, 302 F.3d at 809; Shabazz, 993 F.2d at 437. In such a
case, vehicle occupants should not have the constitutional right to
object to the mode of procedure as long as there is no excessively
long detention. As the government points out, this detention was
prolonged at least as much by the fact that Franklin provided the
trooper with a bogus identification card, requiring a second
computer check to occur, as it was by Trooper Conklin’s decision to
ask questions first. Moreover, under the majority’s reasoning, it
would apparently be constitutionally permissible if Trooper Conklin
had gone to each vehicle occupant and run his or her identification
check separately while questioning only that individual during the
39
process of the computer check. Such a procedure would, however, be
absurd.
Fifth, Brigham does not contest the district court’s
finding that he voluntarily consented to a search of the car.
Instead, the majority reverses under this court’s now-virtually per
se rule that if a traffic stop detention is “unduly prolonged,”
there can be no legal consent to search. Neither Brigham nor the
majority suggest that the detention was prolonged for the purpose
of obtaining consent to search – consent was given six minutes
before Trooper Conklin received the transmission from his
dispatcher concerning Franklin’s real name. This case is
distinguishable from Dortch, Jones, and Santiago, because in those
cases, consent was extracted after the traffic stops had been
completed and thus at a time when, without reasonable suspicion,
the defendant should have been allowed to depart.
The above errors infect the majority’s opinion even if
one assumes that Dortch, Jones, and Santiago properly reflect
Fourth Amendment jurisprudence. While those cases are binding law
in this circuit, I believe they are too broadly written, and I
subscribe to the dissents of Judges Garwood and Emilio Garza in two
of those cases.
40
I suggest that the reasoning of the Seventh Circuit in
Childs,9 more correctly applies Fourth Amendment reasonableness
principles to individual traffic stops. As the court noted:
Questions that hold potential for detecting crime, yet
create little or no inconvenience, do not turn reasonable
detention into unreasonable detention. They do not
signal or facilitate oppressive police tactics that may
burden the public--for all suspects (even the guilty
ones) may protect themselves fully by declining to
answer. Nor do the questions forcibly invade any privacy
interest or extract information without the suspects'
consent.
Childs, 277 F.3d at 954. In short, I believe this case is wrongly
decided under Dortch, Jones, and Santiago. Alternately, that line
of cases is incorrect and should be reconsidered by our court en
banc.
9
277 F.3d 947 (7th Cir.) (en banc), cert. denied, 123 S. Ct.
126 (2002).
41