United States v. Brigham

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2004

_______________________ 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 KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,
STEWART, DENNIS, CLEMENT, PRADO and PICKERING, Circuit Judges.

EDITH H. JONES, Circuit Judge:

During a traffic stop near Nacogdoches, Texas, routine

questioning of the occupants and a consensual search uncovered over

five kilograms of a controlled substance, liquid codeine syrup.

The district court denied the appellant’s motion to suppress. We

granted en banc review of a divided panel decision that reversed

the district court and held that the traffic stop was

unconstitutionally extended and that the consensual search was

improper. Clarifying prior precedents regarding the proper

application of the Fourth Amendment in traffic stop cases, we hold
that the state trooper’s investigatory procedures in this case were

eminently reasonable under the totality of the circumstances. The

conviction is AFFIRMED.

I. BACKGROUND

A. The Traffic Stop1

On May 14, 2000, Reginald Brigham and three friends were

driving on U.S. Highway 59 passing around Nacogdoches, Texas. At

4:13 p.m., State Trooper Shannon Conklin spotted their silver 2000

Buick sedan following too closely behind another vehicle in

violation of Texas traffic laws. Conklin stopped the Buick; a

videocamera and microphone mounted in the patrol car recorded the

entire traffic stop.

Conklin first approached Brigham, the driver, and asked

him to step out of the vehicle and provide his license and

insurance papers. Brigham complied and produced an Arkansas

driver’s license and a rental agreement from an Avis branch in

Memphis, Tennessee, listing Dorothy Harris, a 50-year-old female

who lived in West Memphis, Arkansas, as the lessee. Since none of

the occupants appeared to be a 50-year old female, and no

additional drivers were authorized on the rental agreement, Conklin

became suspicious.

At 4:15 p.m., two minutes into the stop, Conklin began

asking Brigham a series of basic questions about the group’s travel

1
The facts are recited in the light most favorable to the Government
as prevailing party.

2
plans. Brigham replied that they were coming from Houston, Texas,

that one of the passengers had been visiting family members, and

that the rest of the group was on vacation. Conklin asked where

the group had stayed and Brigham replied that they had stayed in a

La Quinta Inn, but he had difficulty explaining where the motel was

located. Brigham avoided making eye contact with Conklin, appeared

to be extremely nervous, and was responding to Conklin’s questions

with questions of his own. Conklin’s five and one-half years of

experience with the Texas Department of Public Safety led him to

believe that Brigham was fabricating answers to his questions.

Brigham identified Dorothy Harris, the renter of the car, as his

mother. Bothered by Brigham’s demeanor and answers, Conklin

decided to verify Brigham’s story with the other occupants of the

car.

At 4:17 p.m., Conklin asked the passenger who Brigham had

indicated was visiting relatives in Houston to step out of the

vehicle. The passenger produced what appeared to be a Tennessee

I.D. card with the name “Sircrease D. Brooks.” Conklin would soon

discover that the I.D. was fictitious and that the passenger’s name

was actually Brandon Franklin. Conklin questioned Franklin about

the group’s travel plans. Franklin explained that the group was

coming from Houston where they had attended an Isley Brothers

concert on Friday night. Conklin then asked Franklin about the

specifics of the trip, including what time the group had arrived in

Houston, whom they had visited, and where they stayed. Franklin

3
appeared somewhat confused about the exact time the group had

arrived in Houston, first answering Friday evening but then saying

he wasn’t sure when they arrived. Franklin also mentioned a La

Quinta Inn and added that he knew a “couple of girls” in Houston.

Notably, Franklin did not state either that he had any relatives in

the Houston area or that he was visiting his family. Like Brigham,

Franklin avoided eye contact with Conklin and appeared extremely

nervous.

At 4:20 p.m., Conklin asked the two remaining passengers

for identification and attempted to determine which of the stories

he had been told was accurate. The female, Keisha Coleman,

indicated that she did not have any identification, and the other

male produced an Arkansas card identifying him as Quincy Perry.

Perry and Coleman appeared confused and were inconsistent

concerning the group’s travel plans, as Perry initially stated that

they arrived in Houston on Friday morning, while Coleman suggested

Saturday.

At 4:21 p.m., now eight minutes into the stop, Conklin

returned to his car and initiated computer checks on the Buick and

the three identification cards he had received. He noted for the

videotape that all three males appeared “extremely nervous.”

Nevertheless, Conklin had informed Brigham that if his license was

“clean,” they would soon be on their way. At 4:23 p.m., the

registration check on the Buick revealed that the plates matched

the vehicle and there was no stolen vehicle report. At the

4
suppression hearing, Conklin testified that he remained suspicious

because in his experience, the fact that a car is not yet reported

as stolen does not necessarily indicate that the car was not

actually stolen. As he awaited the results of the I.D. checks,

Conklin continued to make verbal notes about the Buick’s occupants,

stressing that Brigham and Franklin avoided eye contact with him,

all three men appeared extremely nervous, their hands were shaking,

and the occupants’ stories about their arrival time in Houston and

the purpose of their visit were in conflict. In addition, Conklin

observed that none of the subjects was 25 years old, consequently,

none of them appeared to have the authority legally to possess the

rental car.

At 4:29 p.m., the results of the I.D. checks suggested

that Franklin’s I.D. was likely fictitious. After confirming the

I.D. number that he had provided to the dispatcher, Conklin

examined Franklin’s I.D. more closely and concluded it was a

forgery. At approximately 4:31 p.m., Conklin questioned Brigham

and learned Franklin’s true identity. Franklin, however, continued

to insist to Conklin that he was “Sircrease Brooks,” until Conklin

confronted him about the false I.D. card. Conklin then returned to

his patrol car to check Franklin’s actual identity.

At approximately 4:34 p.m., while Franklin’s I.D. check

was still pending, Conklin waved over a Nacogdoches police unit to

provide backup and briefed the officers on the situation and his

intent to seek consent to search the vehicle. Conklin then

5
provided Brigham with a written warning for following too closely

and returned Brigham’s driver’s license, while explaining that one

of his responsibilities as a state trooper was to intercept illegal

contraband such as guns, stolen property, and narcotics. Brigham

denied that any illegal items were in the car and acceded to

Conklin’s request for a search. Conklin first removed all of the

passengers from the car and patted them down. While Conklin was

searching the Buick, the dispatcher responded with additional

information regarding Franklin’s identity. At approximately 4:42

p.m., Conklin discovered in the trunk, inside a cooler, a Minute

Maid juice container holding what appeared to be liquid codeine.

Conklin then arrested all four occupants of the Buick. Lab tests

later confirmed that the substance was liquid codeine syrup.

B. Court Proceedings

On January 11, 2001, Brigham, Franklin, and Perry were

indicted by a federal grand jury for possessing more than four

kilograms of codeine with intent to distribute in violation of

21 U.S.C. § 841(a)(1). Brigham moved unsuccessfully to suppress

the evidence discovered during Trooper Conklin’s search on the

grounds that the stop and search exceeded the bounds of the Fourth

Amendment. Brigham then reached a plea agreement, subject to his

right to appeal the denial of the motion to suppress.

On appeal, the panel majority held that Trooper Conklin

unconstitutionally extended the traffic stop by questioning Brigham

6
before he began a computer check on the I.D.’s and the rental car’s

registration. See United States v. Brigham, 343 F.3d 490, 497-505

(5th Cir. 2003), vacated and reh’g en banc granted by, 350 F.3d

1297 (5th Cir. 2003). The panel majority also held that Brigham’s

consent to search the vehicle was “involuntary” because it was

tainted by the Fourth Amendment violation. Id. at 505-07. The

conviction was reversed. On rehearing en banc, we find no Fourth

Amendment violation and affirm the conviction.

II. DISCUSSION

Brigham does not here challenge the validity of the

initial traffic stop for following too closely.2 See Terry v.

Ohio, 392 U.S. 1, 88, 88 S. Ct. 1868 (1968); see TEX. TRANS. CODE §

545.062(a) (Vernon 1999) (“An operator shall, if following another

vehicle, maintain an assured clear distance between the two

vehicles”). Rather, Brigham argues that Trooper Conklin exceeded

the scope of the valid stop and prolonged the occupants’ detention

excessively and unconstitutionally when, after determining that

neither Brigham nor the other occupants of the rental car were its

authorized drivers, Conklin interrogated them about their travel

2
To assess a district court's ruling on a motion to suppress evidence
under the Fourth Amendment, we review its factual determinations for clear error
and the ultimate Fourth Amendment conclusions de novo. United States v.
Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003) (citing Ornelas v. United States, 517
U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996) (other citations omitted)). The
evidence is considered in the light most favorable to the prevailing party. Id.
(citing United States v. Orozco, 191 F.3d 578, 581 (5th Cir. 1999)).

7
plans and then instituted computerized vehicle and I.D. checks.3

The stopping of a vehicle and detention of its occupants

constitutes a “seizure” under the Fourth Amendment. This court,

following the Supreme Court, has treated routine traffic stops,

whether justified by probable cause or a reasonable suspicion of a

violation, as Terry stops.4 See Berkemer v. McCarty, 468 U.S. 420,

439, 104 S. Ct. 3138, 3150 (1984); Pennsylvania v. Mimms, 434 U.S.

106, 109, 98 S. Ct. 330, 332 (1977) (per curiam); see e.g., United

States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999).

Pursuant to Terry, the legality of police investigatory

stops is tested in two parts. Courts first examine whether the

officer’s action was justified at its inception, and then inquire

whether the officer’s subsequent actions were reasonably related in

scope to the circumstances that justified the stop. See Terry, 392

U.S. at 19-20, 88 S. Ct. at 1879. Brigham suggests, and the panel

majority agreed, that the Fourth Amendment required Conklin to

return to the patrol car immediately after he learned that none of

3
The Government does not dispute Brigham’s standing, as the vehicle’s
driver, to attack the constitutionality of the search. Compare United States v.
Shabazz, 993 F.2d 431, at 434 n.1 (5th Cir. 1993), citing Rakas v. Illinois, 439
U.S. 128, 99 S. Ct. 421 (1978).
4
The Government does not contend that Officer Conklin’s stop of
Brigham was a stop based on probable cause, and therefore, we apply the standard
Terry analysis. However, it is important to note that at least one of our sister
circuits has recently suggested that different constitutional standards may apply
to stops based on probable cause. See United States v. Childs, 277 F.3d 947,
952-54 (7th Cir. 2002) (en banc) (noting that the Fourth Amendment allows for a
broader range of law enforcement actions where a traffic stop is supported by
probable cause); see also Berkemer v. McCarty, 468 U.S. 420, 439 n.29, 104 S. Ct.
3138, 3150 n.29 (1984) (“We of course do not suggest that a traffic stop
supported by probable cause may not exceed the bounds set by the Fourth Amendment
on the scope of a Terry stop.”).

8
the occupants seemed to be an authorized driver and undertake a

registration check to determine whether the Buick had been reported

stolen. This approach misunderstands the Supreme Court’s

insistence on reasonableness rather than prescriptions for police

conduct under the Fourth Amendment and extends this circuit’s

precedents too far. The correct analysis requires district courts

to consider the facts and circumstances of each case, giving due

regard to the experience and training of the law enforcement

officers, to determine whether the actions taken by the officers,

including the length of the detention, were reasonable under the

circumstances.

The Supreme Court has long held that the “touchstone of

Fourth Amendment analysis is reasonableness.” Ohio v. Robinette,

519 U.S. 33, 39, 117 S. Ct. 417, 421 (1996) (quoting Florida v.

Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 1803 (1991)) (internal

quotation marks omitted). Reasonableness requires a balancing of

the public interest with an individual’s right to be free from

arbitrary intrusions by law enforcement. Mimms, 434 U.S. at 109,

98 S. Ct. at 335. Reasonableness, measured “in objective terms by

examining the totality of the circumstances,” “eschew[s] bright-

line rules, instead emphasizing the fact-specific nature of the .

. . inquiry.” Robinette, 519 U.S. at 39; see also Florida v.

Royer, 460 U.S. 491, 506, 103 S. Ct. 1319, 1329 (1983) (rejecting

“a litmus-paper test” and recognizing that “there will be endless

variations in the facts and circumstances” and therefore, “it is

9
unlikely that the courts can reduce to a sentence or a paragraph a

rule that will provide unarguable answers to the question whether

there has been an unreasonable search or seizure in violation of

the Fourth Amendment”). Finally, the Supreme Court has emphasized

that courts must allow law enforcement “officers to draw on their

own experience and specialized training to make inferences from and

deductions about the cumulative information available to them that

‘might well elude an untrained person.’” United States v. Arvizu,

534 U.S. 266, 273, 122 S. Ct. 744, 750-51 (2002) (quoting United

States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)).

Under the second prong of the Terry test, the question

before the court is whether Conklin’s actions after he legitimately

stopped the Buick were reasonably related to the circumstances that

justified the stop, or to dispelling his reasonable suspicion

developed during the stop. This is because a detention must be

temporary and last no longer than is necessary to effectuate the

purpose of the stop, unless further reasonable suspicion, supported

by articulable facts, emerges. Dortch, 199 F.3d at 200; United

States v. Machuca-Barrera, 261 F.3d 425, 434 (5th Cir. 2001).

Like other circuits,5 this court has found no constitu

5
See, e.g., United States v. Givan, 320 F.3d 452, 459 (3rd Cir. 2003)
(noting that “questions relating to a driver’s travel plans ordinarily fall
within the scope of a traffic stop”); United States v. Linkous, 285 F.3d 716, 719
(8th Cir. 2002) (“An officer does not violate the Fourth Amendment by asking the
driver his destination and purpose, checking the license and registration, or
requesting that the driver step over to the patrol car.”); United States v. Holt,
264 F.3d 1215, 1221 (10th Cir. 2001) (en banc) (noting that questions relating
to a motorist’s travel plans are ordinarily related to the reason for the stop);
United States v. Hill, 195 F.3d 258, 268 (6th Cir. 1999) (holding that an

10
tional impediment to a law enforcement officer’s request to examine

a driver’s license and vehicle registration or rental papers during

a traffic stop and to run a computer check on both. See, e.g.,

Dortch, 199 F.3d at 198 (citing Shabazz, 993 F.2d at 437). An

officer may also ask about the purpose and itinerary of a driver’s

trip during the traffic stop. See, e.g., United States v.

Gonzalez, 328 F.3d 755, 758-59 (5th Cir. 2003). Such questions may

efficiently determine whether a traffic violation has taken place,

and if so, whether a citation or warning should be issued or an

arrest made.6 All these inquiries are within the scope of

investigation attendant to the traffic stop.

But even more important, we “reject any notion that a

police officer’s questioning, even on a subject unrelated to the

purpose of a routine traffic stop, is itself a Fourth Amendment

violation.” Shabazz, 993 F.2d at 436 (emphasis added).

“[D]etention, not questioning, is the evil at which Terry’s second

prong is aimed.” Id. The Fourth Amendment is concerned with

ensuring that the scope of a given detention is reasonable under

officer’s questioning of the defendant “as to his moving plans at the outset of
the stop was reasonable in that the questions related to [the defendant’s]
purpose for traveling”). United States v. Sowers, 136 F.3d 24, 27-28 (1st Cir.
1998); United States v. Hardy, 855 F.2d 753, 757 (11th Cir. 1998).
6
For example, by posing these types of questions at the outset of a
stop, an officer may discover an extenuating circumstance, e.g., that a given
driver was speeding in order to get his pregnant wife to the hospital. See
United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001) (en banc) (explaining
that a motorist’s travel plans typically relate to the purpose of a traffic stop
because the motorist is traveling at the time of the stop and might explain, or
put into context, the reasons why the motorist may have been in violation of the
traffic laws).

11
the totality of the circumstances. See United States v. Roberson,

6 F.3d 1088, 1092 (5th Cir. 1993). Mere police questioning,

without some nonconsensual restraint on one’s liberty, is not a

“seizure” or detention. Florida v. Bostick, 501 U.S. 429, 434, 115

S. Ct. 2382, 2386 (1991). Indeed, this court has recently noted

that a consensual interrogation may follow the end of a valid

traffic stop and that such consensual encounters do not implicate

Fourth Amendment concerns. United States v. Sanchez-Pena, 336 F.3d

431, 442-43 (5th Cir. 2003).

Based on these authorities, Trooper Conklin’s questioning

of Brigham and his companions was fully within the scope of the

detention justified by the traffic stop, particularly after Conklin

ascertained that (1) Brigham was not the owner or lessee of the

vehicle, (2) the lessee was not present in the Buick, and

(3) Brigham’s and Franklin’s versions of their itinerary

conflicted. This court has consistently approved a police

officer’s questioning a driver’s travel plans where the driver was

not the authorized vehicle lessee or otherwise appeared to lack

driving authority.7 Further, as the Eighth Circuit has noted, the

Fourth Amendment permits “[a] police officer [to] undertake similar

questioning of the vehicle’s occupants to verify the information

provided by the driver.” Linkous, 285 F.3d at 719. Conklin’s

7
United States v. Jones, 234 F.3d 234, 237-41 (5th Cir. 2000); Dortch,
199 F.3d at 195-200; see also Roberson, 6 F.3d at 1090-93; Gonzales, 328 F.3d at
756-59.

12
increasing suspicion was also fueled by Brigham’s extreme

nervousness, his avoidance of eye contact, and his pattern of

answering the officer’s questions with questions of his own.

Conklin had a right to rely on his experience in concluding that

such actions indicate that an individual may be lying.

Finally, this process, from the time Trooper Conklin

started questioning Brigham until he returned to his patrol car to

check the registration and I.D.’s provided by Brigham and the

others, lasted only seven minutes. Conklin’s questioning exempli-

fied a graduated response to emerging facts. We cannot say that

Conklin’s actions to this point were anything but reasonable under

the circumstances, and they effectuated the purpose of the stop.

Equally within the legitimate scope of the stop were the

registration and license checks that Conklin then initiated on the

vehicle and its occupants. This procedure would have been permis-

sible even without the additional information he had gleaned, which

led to a reasonable suspicion that, at the very least, the vehicle

might have been stolen.8 See Dortch, 199 F.3d at 199. While the

dispatcher promptly informed Conklin that the Buick had not been

reported stolen, Conklin reasonably waited for the I.D. checks to

8
The circumstances of a stop may also give rise to reasonable
suspicion of other criminal activity beyond automobile theft. Dortch excluded
drug trafficking as a basis for reasonable suspicion on the facts of that case,
where the driver’s license check had come back clean. See Dortch, 199 F.3d at
199. But in another case, we have found that a driver’s nervousness, hesitation
in responding to basic itinerary questions, lies about identification, presence
on a drug trafficking corridor, and prior arrests for drug trafficking, taken
together, gave rise to a reasonable and articulable suspicion of drug
trafficking. See Gonzalez, 328 F.3d at 758.

13
be completed, because in his experience, the fact that a vehicle

has not yet been reported stolen does not necessarily mean that the

vehicle has not actually been stolen. The Supreme Court has

emphasized the importance of allowing officers to “draw on their

own experience and specialized training” to make just such

inferences from the facts available to them. See Arvizu, 534 U.S.

at 273.9

Once Conklin learned that Franklin’s I.D. was likely

false, Conklin acted reasonably, with further questioning, to

uncover Franklin’s true identity and perform a correct background

check. It was while the background check on Franklin was in

progress that Conklin requested and obtained consent from Brigham

to search the vehicle. Thus, as in Shabazz, “[b]ecause [Conklin

was] still waiting for the computer check at the time that [he]

received consent to search the car, the detention to that point

continued to be supported by the facts that justified its

initiation.” Shabazz, 993 F.2d at 437.

In sum, Conklin’s actions were reasonable under the

circumstances and the detention as a whole was reasonable. As the

district court summarized, “[t]he absence of the authorized driver,

the inconsistent explanation as to the trip to Houston, and

9
See also, Sanchez-Pena, 336 F.3d at 437-38; United States v. Nelson,
284 F.3d 472, 482 (3rd Cir. 2002) (noting the “great deference” afforded to an
officer’s experience and suggesting that under Arvizu, law enforcement experience
and training become “the focal point of the [Fourth Amendment reasonableness]
analysis”).

14
Franklin’s presentation of a fictitious I.D., taken together,

justified Trooper Conklin’s continued detention of defendants.”

Because the en banc court reaches a different result than

does the dissent, it is useful to explain how our analyses diverge.

The dissent, like the panel majority, concludes that under our

circuit’s precedent, Conklin unconstitutionally extended the

detention of Brigham and his passengers by questioning them about

their travel plans before running a computer check on the vehicle’s

registration. This conclusion embodies three critical mistakes:

a misreading of Fifth Circuit precedent; an improper stopwatch on

the length of permissible detention; and an erroneous insistence on

“least intrusive means” in the Terry-stop analysis.

First, the dissent extends three of this court’s traffic

stop cases well beyond their facts and reasoning. See Dortch, 195

F.3d at 195-201; Jones, 234 F.3d at 236-43; United States v.

Santiago, 310 F.3d 336, 337-42 (5th Cir. 2002).10 In each case,

following an initially valid traffic stop, patrol officers obtained

negative results on computerized driver’s license and vehicle

registration checks but continued to detain the drivers without

reasonable suspicion until they received consent to search the

cars. This court suppressed evidence of illegal drugs turned up by

10
The Government does not ask this en banc court to reconsider these
cases.

15
the searches.11 The panel and the dissent interpret these cases to

support a conclusion that Conklin’s questioning about the

occupants’ itinerary was “unrelated” to any stolen rental car issue

and unduly prolonged their detention. As a result, the dissent

would apply these prior cases to limit the quantity, scope and

timing of questions that may be asked during a stop.

With due respect to our colleagues, these cases set up no

such inflexible rules. The cases are about timing and sequence:

after the computer checks came up “clean,” there remained no

reasonable suspicion of wrongdoing by the vehicle occupants.

Continued questioning thereafter unconstitutionally prolonged the

detentions. See also United States v. Valadez, 267 F.3d 395,

398-99 (5th Cir. 2001). Moreover, in Dortch and Jones, the

extended detentions were reinforced by the officers’ retention of

the suspects’ drivers’ licenses. See Dortch, 199 F.3d at 198;

Jones, 234 F.3d at 238. This court has not forbidden questioning

that included, inter alia, the drivers’ and passengers’ itinerary

as a legitimate investigatory device in the first instance. None

of the cases demands a particular series of questions be asked — or

not asked — within the scope of a traffic stop, so long as the

overall detention is justified by reasonable suspicion. Moreover,

none of these cases implies that questions about the occupants’

travel plans are related solely to drug interdiction and therefore

11
In each case, the oral or written consent to search given by the
driver was held tainted by the unconstitutionally prolonged detention.

16
necessarily fall outside the scope of a traffic stop. The

dissent’s implications to the contrary are unsupported by common

sense, by the very precedents they rely on, and by the rule that

courts may not scrutinize the motives behind otherwise permissible

police actions. United States v. Whren, 517 U.S. 806, 811-13, 116

S. Ct. 1769, 1773-74 (1996).

That the traffic stop was extended for a few minutes by

Conklin’s preliminary questioning is undeniable. But this process

required as long as it did for reasons beyond Conklin’s control.

There were four occupants in Brigham’s car, and Brigham’s and

Franklin’s inconsistencies and evasions created suspicion,

requiring further detective efforts by Conklin. The dissent

challenges the reasonableness of Conklin’s actions by noting that,

had he looked closer at the Buick’s rental papers, he would have

observed that Brigham and Dorothy Harris shared the same address

and that, as a 50-year-old woman, she was of the right age to be

Brigham’s mother. This is an easy conjecture in hindsight, but it

is unsupported by the district court’s fact-findings. In any

event, the discrepancy between Dorothy Harris’s name as lessee and

Brigham as driver, together with the fact that none of Brigham and

his companions appeared old enough to drive a rental car, gave

cause for further inquiry. The dissent’s concern that questioning

unrelated to the purpose of a traffic stop may unconstitutionally

extend a detention is valid, in abstract terms, but not on the

facts of this case.

17
 Second, neither our prior cases nor any other caselaw of

which we are aware institutes a per se rule requiring an officer

immediately to obtain the driver’s license and registration

information and initiate the relevant background checks before

asking questions.12 The dissent seems to conclude that allowing

questioning, even legitimate questioning, before initiating

computer checks13 constitutes an end-run around Dortch and Jones

and, by its inefficiency, unconstitutionally prolongs the deten-

tion.14 There is, however, no constitutional stopwatch on traffic

stops. Instead, the relevant question in assessing whether a

detention extends beyond a reasonable duration is “whether the

police diligently pursued a means of investigation that was likely

to confirm or dispel their suspicions quickly.” Sharpe, 470 U.S.

at 686 (citing Michigan v. Summers, 452 U.S. 692, 701 n.14 (1981));

see also United States v. Hardy, 855 F.2d 753, 759 (11th Cir. 1988)

(“the most important factor [for courts to consider] is whether the

12
Indeed, in both Jones and Santiago, the officers interrogated the
drivers and their passengers before initiating the relevant computer checks, and
this court did not criticize the order of investigation. Jones, 234 F.3d at
237-42; Santiago, 310 F.3d at 337-42.
13
The panel majority implies that the results of such checks are
necessarily definitive, but as Trooper Conklin observed, the fact that a vehicle
has not yet been reported stolen does not prove that it has not been actually
stolen. Moreover, an officer might find such checks unnecessary if the license
and registration information are regular and the driver and occupants answer
questions clearly.
14
The dissent’s logic suggests that had Trooper Conklin initiated the
computer checks and then returned to the Buick to ask the same questions while
the checks proceeded, such questioning would have been wholly permissible under
the Shabazz and the Dortch line of cases. Oddly, then, according to the dissent,
questions that would be permissible if posed during a computer check somehow
become impermissible when asked before a computer check.

18
police detained [the defendants] to pursue a method of

investigation that was likely to confirm or dispel their suspicions

quickly, and with a minimum of interference”). Computerized

license and registration checks are an efficient means to

investigate the status of a driver and his auto, but they need not

be pursued to the exclusion of, or in particular sequence with,

other efficient means. Some lines of police questioning before the

initiation of a computer check are often reasonable, as they may

enable swift resolution of the stop. On the facts of this case,

Trooper Conklin’s investigative methods were reasonable, proceeded

with deliberation in response to evolving conditions, and evince no

purposeful or even accidental unnecessary prolongation.

Third, by prescribing the scope, duration and order of

Conklin’s investigation, the dissent would impose a “least

intrusive means” test contrary to express statements of the Supreme

Court. See Sharpe, 470 U.S. at 687 (“the fact that the protection

of the public might, in the abstract, have been accomplished by

‘less intrusive’ means does not, by itself, render the search

unreasonable.”) (quoting Cady v. Dombrowski, 413 U.S. 433, 447

(1973)) (internal quotation marks omitted). Instead, the Court

holds, “the question is not simply whether some other alternative

existed, but whether the police acted unreasonably in failing to

recognize and pursue it.” Id. Sharpe also cautioned courts

against engaging in “unrealistic second-guessing,” and noted that

“creative judge[s] engaged in post hoc evaluation of police conduct

19
can almost always imagine some alternative means by which the

objectives of the police might have been accomplished.” Id. at

686-87. A requirement like the one articulated by the panel and

implied by the dissent — that there is a single, formulaic approach

that an officer must adopt in order to allay his reasonable

suspicions during a traffic stop — would engraft upon the Fourth

Amendment the very type of bright-line rule the Supreme Court has

consistently eschewed. See, e.g., Robinette, 519 U.S. at 39.

For the reasons discussed above, we do not presume to

prescribe in the abstract the scope of questioning, investigative

techniques, or length of permissible detention that may be

undertaken following a valid traffic stop. The bounds of existing

caselaw are clear, if fact-intensive: a traffic detention may last

as long as is reasonably necessary to effectuate the purpose of the

stop, including the resolution of reasonable suspicion, supported

by articulable facts within the officer’s professional judgment,

that emerges during the stop. Because Trooper Conklin’s actions

were not unreasonable under the circumstances of this case, the

detention of Brigham and his companions did not violate the Fourth

Amendment.

Absent a Fourth Amendment violation, Brigham’s consent to

search the vehicle was not unconstitutionally tainted. See

Gonzalez, 328 F.3d at 759. Further, the record supports the

district court's determination that Brigham's consent was

voluntarily given as an independent act of free will. Id. (citing

20
United States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir.

1993)). The evidence gathered from the Buick was thus properly

obtained as the result of a consensual search.

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

21
DeMOSS, dissenting, joined by WIENER, STEWART, and DENNIS:

Because the majority opinion neither accurately reflects the

facts as they occurred in this traffic stop nor our law concerning

traffic stops, I respectfully dissent. There are four aspects of

the majority opinion that are the focus of my dissent. First,

because the majority gives only a bare summary of the facts, I put

forth a more comprehensive statement of what actually occurred

during the traffic stop.15 Second, the majority’s assertion that

reasonable suspicion existed to extend the stop is not supported in

either law or fact. Third, the majority misapplies the Supreme

Court’s and our Circuit’s case law concerning traffic stops.

Fourth, I address the dangers inherent in the majority’s opinion

and the erosion of constitutional rights which it permits.

I. The Facts in the Record.

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 (“Trooper

Conklin”) observed a late model Buick sedan northbound in the

outside lane following the vehicle in front of it too closely over

a rise in the highway. Trooper Conklin decided to pull over this

vehicle, which contained three young black males and one young

black female.

15
The circumstances of the traffic stop and subsequent interrogation
and search are recorded on a video tape in the record which is the best available
evidence of the these facts. The summary in this dissent is close to a verbatim
transcript of that videotape.

22
 After making the stop, he approached the car on foot at

approximately 4:13 P.M. and asked the driver to produce his

driver’s license and vehicle registration and to step out of the

car and move back behind the car to an area in front of the patrol

vehicle.16 The driver complied and gave Trooper Conklin his

Arkansas driver’s license and a copy of the rental agreement for

the car. The driver’s license identified him as Reginald Brigham

and the rental agreement identified the lessee as Dorothy Harris.17

Trooper Conklin testified later that while reviewing the

license and rental contract, he immediately noticed that the 50-

year-old woman who had rented the car was not present, and this

aroused his suspicion that the car might be stolen. Standing in

the ditch in front of the patrol vehicle, Brigham asked why he had

been pulled over and Trooper Conklin explained that Brigham was

following too closely and Trooper Conklin thought the passenger in

the front seat may not have been wearing a seatbelt. Instead of

promptly initiating a computer check on Brigham’s driver’s license

or the car’s license plate and papers, which would be a means of

investigation that was likely to confirm or dispel suspicion about

the car being stolen quickly, Trooper Conklin began to question

Brigham, asking him where he was coming from and the purpose of his

16
These requests are standard operating procedure for an officer
intending to issue a ticket or warning for a traffic citation.
17
It is clear under our precedents that at this point Trooper Conklin
effected a seizure of Brigham under our Fourth Amendment law and detention began.

23
travel. Brigham answered that he had been in Houston on pleasure

and one of the passengers had visited family in Houston. Trooper

Conklin continued, asking Brigham which part of Houston they had

stayed in and where they had stayed. Brigham answered that he did

not know in which part of Houston they had stayed and, after

pausing for a moment, answered that they stayed at a La Quinta Inn.

Trooper 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. Trooper

Conklin then asked Brigham when he had arrived in Houston; Brigham

said Friday. Trooper 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, Trooper Conklin turned to the rental agreement and

asked Brigham who had rented the car. Brigham responded that his

mother, Dorothy Harris, had rented it. Trooper Conklin asked where

she was; Brigham told him that she was in Arkansas.

Trooper 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, Trooper Conklin

testified at the suppression hearing that he did not notice that:

(1) the address on Brigham’s driver’s license was the same as the

home address listed by Harris on the rental agreement; or, (2) at

24
50, Harris was of an age that she could be Brigham’s mother.

Trooper Conklin also testified at the suppression hearing that

Brigham seemed nervous, that his hands were shaking, and that he

tended to answer a question with a question.18

Next, Trooper 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 Brandon Franklin, who

was seated in the back seat, that had family in Houston; Brigham

also responded that he had no weapons. This was just after

4:17 P.M. and Trooper Conklin remarked at this time that he wanted

to find out in which part of Houston the friend had family.19

Trooper Conklin approached the car, asked Franklin to step out of

the 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 later turned out to be fictitious, identified Franklin as

Siracrease Brooks. Trooper Conklin began to ask Franklin the same

battery of questions that he had asked Brigham. Trooper Conklin

first asked where they were coming from. Franklin responded that

they had been in Houston and had gone to see an Isley Brothers

18
Although Brigham’s responses on the videotape are slightly unclear,
there were only two instances where Brigham answered a question with a question
and in both instances it appeared Brigham did not understand Trooper 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.
19
The two suspicions of criminal conduct which could legitimately be
in Trooper Conklin’s mind at this point were: (1) was the Buick car following
too closely; and (2) was the Buick stolen. It is beyond my comprehension as to
what relevance this subject that Trooper Conklin said he needed to explore had
on either of these issues.

25
concert. Trooper Conklin asked when they went to the concert;

Franklin said Friday night. Trooper Conklin asked how long they

had been in Houston, and Franklin said they had been there a couple

of days. Trooper Conklin asked what day and time they had arrived.

Franklin initially said Friday late afternoon or evening, but then

stated that he was not exactly sure of their arrival time. Trooper

Conklin continued by asking Franklin whether he stayed with friends

or family. Franklin said they had stayed at a hotel. Trooper

Conklin asked which hotel; Franklin said a La Quinta, as had

Brigham. Trooper 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. Trooper Conklin never

specifically questioned Franklin if he had family in Houston.

Between 4:19 and 4:20 P.M., Trooper Conklin next approached

the vehicle and asked similar questions of the remaining two

occupants, Quincy Perry and the young female who had no

identification. Trooper 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. Trooper

Conklin asked how long they had been there, and Perry said a couple

of days. Trooper 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

26
Trooper 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.20

Finally, at 4:21 P.M., after almost eight minutes of

questioning the driver and the three passengers about matters

unrelated to the basis for the traffic stop, i.e., following too

close, and unrelated to the circumstance of being in the rental

car, Trooper 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

Trooper Conklin waited in his patrol vehicle to hear back from his

radio contact on the driver’s licenses he had collected. While

waiting, Trooper Conklin recorded orally on the videotape a message

to himself that: (1) as to the rental agreement, the subjects were

neither 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

20
Unfortunately, the videotaped conversation involving the woman and
Perry is not completely clear. But after some confusion, they seem to indicate
that they left Thursday night and arrived Friday morning in Houston.

27
Trooper Conklin; (3) all four individuals appeared to lack legal

standing as to the vehicle because they were not listed as

authorized drivers; and (4) they had conflicting stories about

their arrival time in Houston and who they had visited there.

At 4:29 P.M., eight minutes after receiving radio contact from

Trooper Conklin, the dispatcher reported that: (1) Perry and

Brigham had some criminal activity in their backgrounds, but their

licenses were clear and criminal details were unavailable; and

(2) the license Franklin offered was likely fictitious.

Then, Trooper Conklin emerged from his car and aggressively

asked Brigham what Franklin’s name and age was. After initially

not understanding Trooper Conklin’s question, Brigham responded

that his first name was Brandon, and thought his full name was

Brandon Franklin. Trooper Conklin then confronted Franklin.

Franklin initially tried to maintain the fake identity but then

admitted that his name was Brandon Franklin. Trooper Conklin then

asked for Franklin’s wallet and searched it but found nothing.21

Thereafter, around 4:33 P.M., Trooper Conklin called in the new

identification and waived over a local Nacogdoches police car for

backup. He briefed the local police officers on the situation, and

remarked to the officer that he was going to try to get consent to

search but would search the vehicle anyway because none of the four

21
I am not aware of any statute or rule of law which authorized
Trooper Conklin to search the wallet of Franklin under these circumstances.

28
had standing to protest.22

After speaking to the local police, Trooper 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 Trooper Conklin returned Brigham’s driver’s license and the

rental agreement to him, but Trooper Conklin testified at the

suppression hearing that he returned the license. There is no

testimony about what happened to the rental agreement. The record

is clear that Trooper Conklin launched into his consent to search

request immediately after Brigham signed the warning citation. At

about 4:35 P.M., 21 minutes after making initial contact with

Brigham, Trooper Conklin informed Brigham that one of his jobs is

to patrol for contraband. He asked for consent to search, which

Brigham gave. Trooper 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 instructed them not to talk to

each other. The local officers kept watch over Brigham and the

others while Trooper Conklin searched the passenger compartment and

trunk of the vehicle. Trooper Conklin opened a cooler in the trunk

and then opened a gallon-sized opaque plastic fruit drink container

and saw and smelled what he thought was codeine. The record

22
At this point Trooper Conklin had not articulated any
particularized objective fact which would justify a suspicion that the car was
carrying any contraband which required a search.

29
indicates Trooper Conklin also found a half-empty soda bottle of

codeine. At 4:43 P.M., Trooper Conklin with the assistance of the

local officers placed Brigham and all the passengers under arrest.

II. No Particularized and Objective Basis for Reasonable Suspicion
Based on a Totality of the Circumstances.

The majority correctly restates the law that courts may not

scrutinize the motives behind otherwise permissible police actions.

Whren v. United States, 517 U.S. 806, 811-13 (1996). But in my

view, the majority is incorrect in its implied conclusion that it

therefore follows that courts may not look at the totality of the

circumstances to determine as to what illegal activity there was

reasonable suspicion of and eliminate any suspicion that is not

supported by the facts, i.e., that is not reasonable.23 The

majority insists that Supreme Court precedent supports the

propositions that: (1) this Court may hold that there was

reasonable suspicion because Trooper Conklin could have believed

the car was stolen even though it had not been reported stolen and

even though there were no other facts indicating the likelihood it

was stolen; and (2) this Court must let Trooper Conklin draw such

an inference in support of reasonable suspicion even if such an

inference is objectively unreasonable. Proposed Majority Opinion

23
See, e.g., United States v. Arvizu, 534 U.S. 266, 278 (2002)
(Scalia, J., concurring) (stating that an officer’s observations of suspects as
“methodical,” “mechanical,” “abnormal,” and “odd,” “are findings of fact that
deserve respect. But the inference that this ‘would lead a reasonable officer
to wonder why they are doing this,’ amounts to the conclusion that their action
was suspicious, which I would have thought (if de novo review is the standard)
is the prerogative of the Court of Appeals”) (emphasis added).

30
at 15 (citing United States v. Arvizu, 534 U.S. 266, 273 (2002)).

What the Supreme Court precedent cited by the majority actually

states is “[w]hen discussing how reviewing courts should make

reasonable-suspicion determinations, [the Supreme Court] ha[s] said

repeatedly that [the courts] must look at the ‘totality of the

circumstances’ of each case to see whether the detaining officer

has a ‘particularized and objective basis’ for suspecting legal

wrongdoing.” Arvizu, 534 U.S. at 273.

The majority opinion discounts the objective facts and Trooper

Conklin’s particularized findings, both of which indicate there was

no reasonable suspicion the car was stolen and there was no other

particularized or objective reasonable suspicion of wrongdoing.

The computer check of the car’s license registration indicated it

had not been reported stolen. Further, the record clearly supports

the fact that Brigham told Trooper Conklin his mother rented the

car; Harris and Brigham were of the ages that they could be a

mother and son, respectively; and Brigham’s address matched the

address of Harris on the rental papers. To the extent some of

these facts were overlooked by the district court, I would find the

district court to have clearly erred. Most importantly, while

waiting for the results of the driver’s license checks to return,

Trooper Conklin recorded orally on the videotape a message to

himself that: (1) “as to the rental agreement, the subjects were

neither 25 years old nor listed on the rental agreement (Harris had

rented the car)”; (2) “the subjects seemed nervous (hands were

31
shaking) and neither Brigham nor Franklin had made eye contact with

Trooper Conklin”; (3) “all four individuals appeared to lack legal

standing as to the vehicle because they were not listed as

authorized drivers”; and (4) “they had conflicting stories about

their arrival time in Houston and who they had visited there.”

The majority states that “[t]he panel’s concern that

questioning unrelated to the purpose of a traffic stop may

unconstitutionally extend a detention is valid, in abstract terms,

but not on the facts of this case.” Proposed Majority Opinion at

19. Not true. Rather, it is the majority’s concern that the car

could have been stolen even though the car was not reported stolen

that is valid in the abstract, but not on the facts of this case,

where such a conclusion is belied by what occurred in terms of the

“clean” computer check, by the stopping officer’s clear indication

of what he had suspicions of, and the lack of a particularized and

objective suspicion of any other illegal activity.

Applying the proper standard of review that gives due respect

to the officer and his experience but does not provide the officer

with a carte blanche to make non-particularized and non-objective

inferences, the facts indicate Trooper Conklin had no reasonable

suspicion about car theft and could have had no reasonable

suspicion of any other particular wrongdoing. He may have had some

questions about the contractual rights of Brigham to drive the car

– but this of course is not a matter of criminal law. Likewise,

Trooper Conklin’s views on the standing of the occupants to protest

32
a search are wholly irrelevant to evaluating reasonable suspicion

of car theft. Further, not only were there no facts on which to

base a reasonable suspicion that the car was stolen, once the

computer check indicated the car had not been reported stolen, but

our case law also indicates the other facts–-nervousness, lack of

eye contact, the authorized driver not being present, and some

inconsistent responses to detailed travel questions--are

insufficient to support reasonable suspicion of drug trafficking.

United States v. Santiago, 310 F.3d 336, 342 (5th Cir. 2002);

United States v. Valadez, 267 F.3d 395, 396-99 (5th Cir. 2001);

United States v. Jones, 234 F.3d 234, 241-42 (5th Cir. 2000);

United States v. Dortch, 199 F.3d 193, 199-200 (5th Cir. 1999).24

Our Circuit’s case law holds that “[t]he suspicion required to

justify such a detention need not rise to the level of probable

cause but must be based on more than an unparticularized suspicion

or hunch.” Jones, 234 F.3d at 241 (emphasis added). Further, the

detention’s scope must be strictly tied to the particularized

suspicion justifying the detention in the first place. Dortch, 199

F.3d at 199. The majority opinion disregards these requirements

and simply concludes that Trooper Conklin had reasonable suspicion

– but never says of what. As indicated, there was no reasonable

suspicion to support the belief the car was stolen and no other

facts justifying a continued detention. In ignoring the facts of

24
As far as I can tell the majority’s opinion makes no attempt to
overrule all or any part of these cases so their holdings remain in full effect.

33
the case and our precedent, the majority opinion errs in two

respects. First, according to the majority, the Fourth Amendment

only requires reasonable suspicion of some non-specific wrongdoing.

Second, the majority suggests that several objective facts,

including a negative computer check, cannot extinguish this non-

specific suspicion.

The first error is clearly contrary to this Circuit’s

precedent. See Jones, 234 F.3d at 241. Unfortunately, the

majority does not address the requirement that reasonable suspicion

be of particularized wrongdoing based on objective facts. The

second error of the majority opinion is in direct contradiction to

what was the well-established rule in this Circuit. See, e.g.,

id.; Dortch, 199 F.3d at 198-99; see also United States v. Shabazz,

993 F.2d 431, 436 (5th Cir. 1993) (noting that the detention

following a stop must be tailored to its underlying justification

and that, once an officer conducts a pat-down search of an

individual suspected only of carrying a gun, the officer, upon

finding no weapon, may not further detain the person to question

him because there is no longer an underlying justification).

Dortch and Jones at least stand for the proposition that when an

officer has reasonable suspicion of a stolen car, questioning after

the completion of a negative computer check unreasonably extends

the detention. This proposition implies that a negative computer

check can definitively dispel reasonable suspicion of auto theft in

the absence of particularized and objective facts that would

34
indicate a reasonable suspicion of auto theft still exists.

Accordingly, under our law prior to the majority’s opinion,

the stop could not be extended beyond the checking of the license

and registration.

III. The Logical Application of Traffic Stop Precedent.

The majority indicates that to hold, as the panel opinion did,

that the stop was unreasonably extended creates an “absurd” rule of

law that somehow requires an officer to immediately obtain the

driver’s license and registration and initiate relevant background

checks before questioning. Again, not true. The actual panel

holding, not the majority’s interpretation thereof, was that in the

absence of reasonable suspicion an officer could not do an end run

around this Circuit’s case law, i.e., Dortch, Jones, and Santiago,

which makes it impermissible to extend the stop after the license

and registration checks come back “clean,” by prolonging the

detention on the front end by not running the computer check in an

effort to develop reasonable suspicion when none existed.25

Inserting an illogical sequence requirement into our law, the

majority states that our case law is “about timing and sequence:

25
The majority indicates in a footnote in support of its argument that
the panel opinion impermissibly requires immediate license and registration
computer checks because an officer might occasionally find such checks
unnecessary where the driver’s license and registration appear regular via a
visual inspection and the occupants answer questions clearly. Proposed Majority
Opinion at 19 n.13. Of course, if an officer has a legitimate reason for
stopping a vehicle and then after visually inspecting the license and
registration ends the stop because the officer decides not to issue a citation,
there is no unreasonable detention. Neither the majority nor the panel opinion
has ever suggested otherwise.

35
after the computer checks came up ‘clean,’ there remained no

reasonable suspicion of wrongdoing by the vehicle occupants.

Continued questioning thereafter unconstitutionally prolonged the

detentions.” Proposed Majority Opinion at 17 (citing Valadez, 267

F.3d at 398-99). The majority applies the Dortch, Jones, Santiago

line of cases in such a way that an officer may not unreasonably

extend a traffic stop on the back end (after receiving answers to

computer checks), but under the majority’s new holding in this case

the officer is free to do so on the front end. The result of the

majority’s opinion is plainly illogical, and is precisely the

technique used by Trooper Conklin to avoid the inhibitions of

Dortch, et al.

Further, in an effort to reach this result the majority takes

several leaps over the established law of the Supreme Court and

this Circuit concerning traffic stops.

First, the majority insists that Supreme Court case law

supports the proposition that there is no constitutional stopwatch

on traffic stops. Proposed Majority Opinion at 19. But such a

broad statement, misses the mark the Supreme Court clearly

established when it instructed courts to “examine whether the

police diligently pursued a means of investigation that was likely

to confirm or dispel their suspicions quickly.” United States v.

Sharpe, 470 U.S. 675, 686 (1985). It seems clear to me that the

delay and extended questioning in this case was not confirming or

36
dispelling suspicions in a diligent, much less “quick,” manner.26

This fact is made even more evident considering the one set of

questions that Trooper Conklin never asked of Brigham or the

passengers was when, where, and from whom did Brigham get

possession of the rented car? As we have stated before,

questioning on unrelated matters that extends the stop can make the

detention unreasonable. United States v. Machuca-Barrera, 261 F.3d

425, 432-33, n.21 (5th Cir. 2001).

Second, the issues of whether passengers can be questioned,

have their licenses checked, or be removed from the vehicle and

26
In Florida v. Royer, a plurality of the Supreme Court addressed the
permissible scope of a Terry stop in the midst of offering several observations
about the Fourth Amendment. 460 U.S. 491 (1983). It stated, in part:

The scope of the search must be strictly tied to and justified by
the circumstances which rendered its initiation permissible. The
reasonableness requirement of the Fourth Amendment requires no less
when the police action is a seizure permitted on less than probable
cause because of legitimate law enforcement interests. The scope of
the detention must be carefully tailored to its underlying
justifications.

The predicate permitting seizures on suspicion short of probable
cause is that law enforcement interests warrant a limited intrusion
on the personal security of the suspect. The scope of the intrusion
permitted will vary to some extent with the particular facts and
circumstances of each case. This much, however, is clear: 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.

Id. at 500 (citations and internal quotation marks omitted). Although this case
was decided by only a plurality of the Justices, there is no indication the
plurality resulted because of the discussion of general principles that relate
to this case. In fact, in his concurrence, Justice Brennan explained, “I
interpret the plurality’s requirement that the investigative methods employed
pursuant to a Terry stop be ‘the least intrusive means reasonably available to
verify or dispel the officer’s suspicion in a short period of time,’ to mean that
the availability of a less intrusive means may make an otherwise reasonable stop
unreasonable.” Id. at 511 n.*(Brennan, J., concurring in the result)(internal
citation omitted).

37
separated, and what value any information gleaned from the

passengers could be to Trooper Conklin in building an ex post facto

reasonable suspicion was simply not addressed by the parties in

this case and has never been decided by this Circuit. But the

majority by its sweeping opinion in this case, citing only an

Eighth Circuit case permitting the questioning of passengers, has

significantly expanded the scope of what is reasonable police

conduct during a traffic stop.

IV. Dangers Inherent in the Majority’s Holding.

The propriety of and motivations behind the somewhat suspect

initial stop in this case are not before the Court.27 But in the

words of Justice O'Connor in her dissent in Atwater v. City of Lago

Vista, joined by Justices Stevens, Ginsburg, and Breyer, “it is

precisely because these [subjective] motivations are beyond our

purview that we must vigilantly ensure that officers' poststop

27
In this case there is the unspoken issue of racial profiling. I
recognize that counsel for Brigham neither challenged the initial propriety of
the traffic stop for following too closely, nor did he raise an Equal Protection
claim based on an impermissible racial classification (i.e., the unequal
enforcement of laws based on race), nor did he raise a Fourth Amendment challenge
based on an illegitimate use of race as a factor for reasonable suspicion. But
in my view, the obvious facts of this case, i.e., four young African-Americans
traveling in a vehicle with out-of-state license plates stopped on a public
highway in East Texas by a white highway patrolman for “following too closely”
and then interrogated for 20 minutes about matters unrelated to the reasons for
that stop, are so suggestive of circumstances in which racial profiling typically
occurs that the district court and our Court fail in our responsibility to the
hundreds of our minority citizens who daily exercise their constitutional right
to travel in interstate commerce without harassment when we close our eyes and
minds to the reality of these circumstances. Texas now has enacted statutes
prohibiting racial profiling and requiring law enforcement agencies to develop
plans to eliminate the use of racial profiling and keep track of data concerning
traffic stops and arrests. See TEX. CODE CRIM. PROC. ANN. art. 2.131-137 (Vernon
Supp. 2004). Regrettably, these statutes were not yet effective when Brigham was
stopped.

38
actions–which are properly within our reach--comport with the

Fourth Amendment's guarantee of reasonableness.” 532 U.S. 318, 372

(2001) (O’Connor, J., dissenting). The majority opinion fails to

do just that. In other words, we may be unable to remedy the

initial wrong that potentially occurred in this case because of a

technical or procedural rule, but we are not prevented from

remedying the post-stop constitutional violation that actually

occurred.

I predict that the holding in this case will lead to further

infringement on the privacy of the traveling public. The majority

opinion permits a law officer to make a traffic stop for a minor

and innocuous traffic violation and then expand that stop into a

full-blown interrogation of the driver and all occupants of the

vehicle as to where they are going, where they have been, where

they stayed, what they did, whom they talked to, and what events

they attended. This results in a fishing expedition to see if the

vehicle’s occupants have engaged in any criminal conduct other than

the traffic violation for which the stop was made. The majority

opinion permits the officer, during the pendency of the stop, to

require the driver and all occupants of the vehicle to vacate the

vehicle, be subjected to a pat-down search for weapons, and be

required to separate and stay outside of the vehicle at locations

specified by the officer separate and apart from each other, all

without any conduct on the part of the driver or the occupants that

threatens the safety of the officer in any way. Likewise, the

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majority opinion will now allow the officer to require each

occupant in the vehicle to furnish sufficient identification to

allow the officer to run a computer check on each individual

without any suspicion that such occupant has committed any offense.

The majority opinion will permit the officer after running a

computer check on the registration of the vehicle and getting a

“clean” report to continue to interrogate the driver and occupants

about whatever subject he chooses. All this can be done without

any particularized or objectively reasonable suspicion of criminal

conduct; and all of this may be conducted in whatever sequence and

over whatever time frame the officer chooses. Finally, if the

officer discovers any contraband in the vehicle, he may seize it so

long as the officer can testify at a subsequent suppression hearing

that in his opinion the driver and the occupants were nervous,

would not establish eye contact with him, and gave slightly

conflicting answers to the unrelated interrogating questions which

were posed to them.

The majority’s opinion is another step in the direction of

judge-developed law that says the end justifies the means; that

makes the finding of contraband or drugs the ultimate test of

reasonableness; that concludes that if law enforcement officers

find drugs the search was a priori reasonable. I have previously

expressed my concern about this process of diluting the protections

of the Fourth Amendment by giving too broad an interpretation to

what constitutes “reasonable police actions.” See United States v.

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Gould, 364 F.3d 578, 605 (5th Cir. 2004) (DeMoss, J., dissenting)

(referring to the unhooking of the protective sweep exception from

the requirement of being part of the execution of an arrest warrant

as effectively eliminating the need for complying with the Fourth

Amendment under the guise of finding almost everything reasonable).

I suppose it would be constitutionally possible for the Texas

Legislature or the United States Congress to adopt a statute that

says that merely by operating a vehicle on a public highway every

operator shall be deemed to have consented to a search of that

vehicle for contraband whenever that vehicle is stopped for any

traffic violation. Because of the obvious potentials for abuse

from such a law, I hope that neither the Legislature nor the

Congress would ever have enough votes to enact it; but I am dead

certain that the courts do not have the constitutional authority to

achieve that end simply by construing what is reasonable. I

respectfully dissent.

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