Case: 16-10128 Date Filed: 08/14/2020 Page: 1 of 39
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10128
________________________
D.C. Docket No. 3:14-cr-00046-CAR-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERICKSON MEKO CAMPBELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(August 14, 2020)
Before MARTIN and TJOFLAT, Circuit Judges, and MURPHY,∗ District Judge.
TJOFLAT, Circuit Judge:
∗
Honorable Stephen J. Murphy III, District Judge for the United States District Court for
the Eastern District of Michigan, sitting by designation.
Case: 16-10128 Date Filed: 08/14/2020 Page: 2 of 39
On its own motion, the Court vacates its prior opinion, United States v.
Campbell, 912 F.3d 1340 (11th Cir. 2019), filed January 8, 2019, and substitutes
the following opinion in its place.
This appeal presents important questions about the proper confines of a
traffic stop. First, whether a highway patrolman had reasonable suspicion to stop a
motorist for a rapidly blinking turn signal. Second, if there was reasonable
suspicion, whether the seizure became unreasonable when the patrolman prolonged
the stop by questioning the motorist about matters unrelated to the stop’s mission.
The District Court concluded that the initial stop was valid and that the questioning
about unrelated matters did not transform the stop into an unreasonable seizure.
The District Court therefore denied the motorist’s motion to suppress inculpatory
evidence discovered during a subsequent search.
We agree that there was reasonable suspicion to stop the motorist. But we
find that under the Supreme Court’s recent decision in Rodriguez v. United States,
135 S. Ct. 1609 (2015), the patrolman did unlawfully prolong the stop. Because
his actions were permitted under binding case law at the time, however, the good
faith exception to the exclusionary rule applies. We thus affirm the denial of the
motion to suppress.
I.
2
Case: 16-10128 Date Filed: 08/14/2020 Page: 3 of 39
A.
At about 9:00pm on a brisk night in December 2013, Deputy Sheriff Robert
McCannon was patrolling Interstate 20 in Georgia when he observed a Nissan
Maxima cross the fog line. 1 McCannon activated the camera on the dashboard of
his patrol car, and after observing the Maxima cross the fog line a second time and
noticing that its left turn signal blinked at an unusually rapid pace, he pulled the car
over. He approached the Maxima, introduced himself to the driver, Erickson
Campbell, asked him for his driver’s license, and explained why he had pulled him
over. After determining that the Maxima’s left turn signal was malfunctioning,
McCannon decided to issue Campbell a warning for failing to comply with two
Georgia traffic regulations: failure to maintain signal lights in good working
condition,2 and failure to stay within the driving lane.3 McCannon asked Campbell
1
The “fog line” is the line on the side of the highway that separates the highway from the
shoulder, marking the end of the highway’s outside lane.
2
O.C.G.A. § 40–8–26 states, in pertinent part:
(a) Any motor vehicle may be equipped . . . with the following signal lights or devices:
....
(2) A light or lights or mechanical signal device capable of clearly indicating any
intention to turn either to the right or to the left and which shall be visible from
both the front and the rear.
(b) Every . . . signal light or lights indicating intention to turn shall be visible and
understandable during daytime and nighttime from a distance of 300 feet from both the
front and the rear. . . . [S]uch light or lights shall at all times be maintained in good
working condition.
3
O.C.G.A. § 40–6–48 states, in pertinent part:
3
Case: 16-10128 Date Filed: 08/14/2020 Page: 4 of 39
to step out of his car and accompany him to the patrol car while he wrote the
warning ticket.
While writing the ticket, McCannon asked the dispatcher to run a check on
Campbell’s license and engaged Campbell in conversation. He learned that
Campbell was en route to Augusta to see his family, where Campbell worked, that
Campbell had been arrested sixteen years ago for a DUI, and that Campbell was
not traveling with a firearm. Then he asked Campbell if he had any counterfeit
CDs or DVDs, illegal alcohol, marijuana, cocaine, methamphetamine, heroin,
ecstasy, or dead bodies in his car. Campbell answered that he did not. At that
time, McCannon asked Campbell if he could search his car for any of those items,
and Campbell consented.
While McCannon continued writing the warning ticket, Deputy Patrick
Paquette, who had arrived on the scene a few minutes earlier, began searching the
car. McCannon finished the warning ticket and had Campbell sign it. After giving
Campbell the ticket and returning his license, McCannon joined Paquette in the
search. They found a 9mm semi-automatic pistol, 9mm ammunition, a black
Whenever any roadway has been divided into two or more clearly marked lanes for
traffic, the following rules, in addition to all others consistent with this Code section,
shall apply:
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane
and shall not be moved from such lane until the driver has first ascertained that
such movement can be made with safety.
4
Case: 16-10128 Date Filed: 08/14/2020 Page: 5 of 39
stocking cap, and a camouflage face mask in a bag hidden under the carpet in the
Maxima’s trunk. Confronted, Campbell admitted that he lied about not traveling
with a firearm because he was a convicted felon and had done time.
B.
Campbell was indicted for possessing a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). Following his indictment, he asserted that the
evidence found in the search of his car was obtained in violation of the Fourth
Amendment’s prohibition against unreasonable searches and seizures, and moved
the District Court to suppress it. 4 He presented two arguments in support of his
motion. First, the seizure was unreasonable because Deputy McCannon lacked
reasonable suspicion to believe that a traffic violation had occurred. Second, even
if there was reasonable suspicion, his seizure became unreasonable when
McCannon prolonged the stop by asking Campbell questions unrelated to the
purpose of the stop. In turn, the unreasonable seizure tainted any consent he had
given the officers to search his car, requiring that the evidence uncovered during
the search be suppressed. 5
4
The Fourth Amendment states, in pertinent part, that “The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated.” The Fourth Amendment is applicable to the states through the Due
Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684,
1692 (1961).
5
Campbell also argued that the search was tainted because it exceeded the scope of any
consent he had given, but this issue is not before us on appeal.
5
Case: 16-10128 Date Filed: 08/14/2020 Page: 6 of 39
Campbell’s first argument was that his rapidly blinking turn signal did not
supply reasonable suspicion to make the traffic stop. All that O.C.G.A. § 40–8–26
requires is that the turn signal “indicate a driver’s intention to change lanes,” and
the Maxima’s left turn signal was able to do that. That the signal was not blinking
as designed was irrelevant, Campbell said, because the statute did not require that a
turn signal “(1) blink in unison with the other turn signal, (2) blink at a certain
pace, or even, (3) blink as intended by the vehicle manufacturer.” 6
Campbell’s second argument was that McCannon unlawfully prolonged the
stop by asking questions unrelated to the purpose of the stop. Specifically, he
challenged questions on the following topics:
McCannon asked: (1) where he was going, (2) who he was going to
see, (3) where he worked, (4) if he had time off work, (5) when his
last traffic ticket was, (6) if he had ever been arrested, (7) how old his
car was, (8) how good of a deal he got on his car, (9) whether he had
any counterfeit merchandise in the car, and, (10) if he had a dead body
in the car.
Relying on the Supreme Court’s decision in Rodriguez, Campbell maintained that
if McCannon prolonged the stop at all through these inquiries, the stop became
unlawful.
The District Court held an evidentiary hearing on Campbell’s motion to
suppress. Deputy McCannon, whom the Government called to the stand at the
6
Campbell also denied that reasonable suspicion existed for allegedly crossing the fog
line. The District Court did not reach this argument and neither do we.
6
Case: 16-10128 Date Filed: 08/14/2020 Page: 7 of 39
outset of the hearing, was the sole witness. Aside from his testimony, the Court
had the benefit of the video created by the dashboard camera. The video portrays
what transpired between McCannon’s activation of the camera and Campbell’s
arrest, including the questioning Campbell complains of as unrelated to the
purpose of the stop. The video’s timestamps indicate precisely when this
questioning took place. The following bullet points, headed by the timestamps,
demonstrate this.
• 0:00: McCannon activates the camera.
• 2:05–16: McCannon provides the Sheriff’s Office dispatcher with the
car’s license plate number. The dispatcher runs the number and informs
him that it belongs to Erickson Campbell, an “active felon.”
• 2:31: McCannon activates his patrol car’s flashing lights.
• 2:36–58: Campbell pulls over.
• 3:25–32: McCannon approaches the car from the passenger side and
requests Campbell’s driver’s license.
• 3:34–4:42: McCannon explains to Campbell that he stopped him for
“weaving in his lane” and because his left turn signal was blinking
rapidly. McCannon says the rapid blinking means “you’ve got a bulb
out somewhere.” He then checks the lights in the front and back of the
car, none of which are out. McCannon says it must be that the turn
signal is “about to go bad,” but that he won’t write a ticket for that—
just a warning.
• 4:43–5:09: McCannon asks Campbell where he is going. Campbell
says he is traveling to Augusta, Georgia. McCannon asks why he is
going there, and Campbell responds that he is going to see his family.
• 5:10–13: McCannon asks Campbell to step out of the car and walk with
him to the patrol car where he will write the warning.
• 5:48: McCannon begins writing the warning ticket.
• 6:13–29: McCannon asks Campbell about his family in Augusta,
adding that he knows a little about Augusta. Campbell says he does not
know much about Augusta; he just has family there. McCannon
continues writing the ticket.
7
Case: 16-10128 Date Filed: 08/14/2020 Page: 8 of 39
• 6:30–57: McCannon asks Campbell what type of work he does.
Campbell says that he works for American Woodlawn, building for
Home Depot and Lowes.
• 7:07–27: McCannon asks Campbell where his family lives in Augusta.
Campbell responds that his family lives off of Watson Road.
McCannon indicates he knows approximately where that is, and
continues writing the ticket.
• 7:48–8:30: McCannon stops writing to retrieve his jacket from the
patrol car.
• 8:32–38: McCannon asks Campbell if he is traveling with a firearm.
Campbell shakes his head no.
• 9:07: McCannon acknowledges Sergeant Paquette, who has just
arrived off camera.7
• 9:12–18: McCannon asks Paquette to “come here and let me ask you
about this location.” McCannon tells Campbell that Paquette is from
Augusta.
• 9:31–39: McCannon calls the dispatcher to run a check on Campbell’s
driver’s license.
• 9:40–54: McCannon asks Campbell if he had been arrested before.
Campbell responds yes, about sixteen years ago, for a DUI.
• 10:00–56: McCannon and Paquette ask Campbell about his destination
and where his family lives in Augusta, while McCannon continues to
intermittently write the ticket.
• 11:16–19: McCannon: “I know I asked you if you have any firearms
tonight, and you said ‘no.’” Campbell nods and says “yes, sir.”
• 11:20–45: McCannon: “Any counterfeit merchandise that you’re
taking to your relatives in Augusta? And what I mean by that is—any
purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs?
Anything like that? Any illegal alcohol? Any marijuana? Any cocaine?
Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You
don’t have any dead bodies in your car?” Campbell shakes his head or
otherwise responds in the negative to each question.
• 11:47–55: McCannon: “I know you said you didn’t have that, and I’m
not accusing you of anything—can I search it? Can I search your car
for any of those items I asked you about?” Campbell responds in the
affirmative, nodding and gesturing toward the car.
7
Sergeant Paquette had observed McCannon’s encounter with Campbell while patrolling
the highway, and had pulled over to assist.
8
Case: 16-10128 Date Filed: 08/14/2020 Page: 9 of 39
• 12:02–13:05: Paquette pats down Campbell after McCannon indicates
that he had not yet done so. McCannon continues writing the ticket.
• 13:06: Paquette begins searching the car.
• 13:22–44: McCannon asks Campbell to sign the ticket. Campbell does
so and returns it to McCannon.
• 14:00: McCannon hands the ticket to Campbell.
• 16:18–19:58: McCannon and Paquette search the car.
• 19:58–20:08: Paquette informs McCannon that he has discovered a gun
and a ski mask.
• 20:30–21:02: The officers finish searching the car and place Campbell
in handcuffs.
• 21:25–40: McCannon informs Campbell of his Miranda rights.
• 24:12–48: McCannon tells Campbell he is under arrest for felon in
possession of a firearm. McCannon places Campbell in the rear of his
patrol car to be taken to the Greene County jail.
From the time McCannon began writing the warning ticket to Campbell’s
consent to the search, a total of 6 minutes and 7 seconds elapsed. Campbell
consented 8 minutes and 57 seconds after McCannon made the stop.
C.
At the conclusion of the evidentiary hearing, the District Court asked the
parties for supplemental briefing to address the possible application of the
Rodriguez decision. The District Court also requested supplemental briefing on
the applicability of Davis v. United States, in which the Supreme Court held that
the Fourth Amendment’s exclusionary rule should not apply when the police act in
good-faith reliance on binding judicial precedent. 564 U.S. 229, 232, 131 S. Ct.
2419, 2423–24 (2011). After briefing, the Court denied the motion to suppress.
9
Case: 16-10128 Date Filed: 08/14/2020 Page: 10 of 39
The District Court determined that the rapidly blinking turn signal provided
reasonable suspicion to stop the car. Georgia’s statute requires turn signals to be in
good working condition. The Court reasoned that McCannon had reasonable
suspicion to believe that the rapidly blinking turn signal violated this requirement.
The Court further concluded that McCannon had “reasonable suspicion to initiate
the stop to determine whether the front signal lights were functioning properly.”
The Court based this conclusion on McCannon’s testimony that in his experience a
rapidly blinking turn signal indicates either a bulb is out or is about to go out.
Given this finding, there was no need to address the failure-to-maintain-lane
violation.
After finding reasonable suspicion, the District Court moved to the
prolongation issue. The Court found that precedent entitled McCannon to ask
Campbell about his destination and the purpose of his trip; the year his car was
made; the last traffic citation he received; his criminal history8; and whether he was
traveling with a firearm. As the Court put it, “[t]hese questions either addressed the
traffic violation or were related to legitimate safety concerns.”
But the questions about contraband, the Court said, were not related to the
purpose of the stop. These questions—about counterfeit merchandise, drugs, and
8
Citing United States v. Purcell, 236 F.3d 1274, 1280 (11th Cir. 2001), the Court held
that McCannon “lawfully asked Defendant about his criminal history while he waited on dispatch
to run [Defendant’s] license information.”
10
Case: 16-10128 Date Filed: 08/14/2020 Page: 11 of 39
dead bodies—and Campbell’s negative responses, consumed all of 25 seconds.
Immediately thereafter, Campbell consented to the search of his automobile.
Citing our decision in United States v. Griffin, 696 F.3d 1354, 1362 (11th
Cir. 2012), the Court said the few seconds “McCannon took to ask a few unrelated
questions ‘did not transform the stop into an unconstitutionally prolonged
seizure.’” The Court concluded that the overall length of the stop was reasonable
and that McCannon conducted the stop expeditiously. Because the seizure was
reasonable, there was no reason for the Court to decide whether the consent was
tainted or the good faith exception to the exclusionary rule applied.
Following the Court’s ruling, Campbell entered a conditional guilty plea,
preserving the right to appeal the denial of his motion to suppress. See Fed. R.
Crim. P. 11(a)(2). He lodged this appeal after the Court imposed a 28-month
sentence.
II.
“A denial of a motion to suppress involves mixed questions of fact and law.”
United States v. Spivey, 861 F.3d 1207, 1212 (11th Cir. 2017) (quotation omitted).
We review the District Court’s findings of fact for clear error, considering all the
evidence in the light most favorable to the prevailing party—in this case, the
Government. Id. But we review de novo the District Court’s application of the
law to those facts. United States v. Luna-Encinas, 603 F.3d 876, 880 (11th Cir.
11
Case: 16-10128 Date Filed: 08/14/2020 Page: 12 of 39
2010). Our review is not moored to the evidence presented at the suppression
hearing; we are free to look at the whole record. United States v. Newsome, 475
F.3d 1221, 1224 (11th Cir. 2007).
A.
A traffic stop is a seizure within the meaning of the Fourth Amendment.
Whren v. United States, 517 U.S. 806, 809–10, 116 S. Ct. 1769, 1772 (1996). To
comply with the Fourth Amendment, the officer must have reasonable suspicion.
Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (“All parties agree that to
justify [a traffic stop], officers need only reasonable suspicion[.]” (quotation
omitted)). 9 That is, the officer must have “a particularized and objective basis for
suspecting the person stopped of criminal activity.” Navarette v. California, 572
U.S. 393, 396, 134 S. Ct. 1683, 1687 (2014). Criminal activity includes even
minor traffic violations. See United States v. Chanthasouxat, 342 F.3d 1271, 1277
(11th Cir. 2003). The question here is whether a rapidly blinking turn signal
creates reasonable suspicion that a traffic violation has occurred.
9
The parties and the District Court mention needing reasonable suspicion or probable
cause. This framing is understandable given the Supreme Court’s declaration in Whren that “the
decision to stop an automobile is reasonable where the police have probable cause to believe that
a traffic violation has occurred.” Whren, 517 U.S. at 810, 116 S. Ct. at 1772. We have also
echoed that standard. See United States v. Pierre, 825 F.3d 1183, 1192 (11th Cir. 2016)
(“Pursuant to the Fourth Amendment, police may stop a vehicle if they have probable cause to
believe that a traffic violation has occurred.”). But the Supreme Court has since made it plain
that reasonable suspicion is all that is required. See Heien, 135 S. Ct. at 536. While probable
cause is sufficient, only reasonable suspicion is necessary.
12
Case: 16-10128 Date Filed: 08/14/2020 Page: 13 of 39
Georgia law requires that a vehicle be equipped with right and left turn
signal lights. O.C.G.A. § 40–8–26(a)(2). Such lights must clearly indicate an
intention to turn right or left and be visible from the front and rear from a distance
of 300 feet. In addition, such lights “shall at all times be maintained in good
working condition.” Id. §§ 40–8–26(a)(2), (b). As the District Court noted, the
good working condition requirement is separate. If all the statute demanded is that
the turn signal be visible from 300 feet and clearly indicate an intention to change
lanes, the good working condition language would be superfluous. It must mean
more.
Typically, when a turn signal blinks rapidly, it does so to notify the driver
that a bulb is out or is about to go out. It can also mean that there is a problem
with the wiring. Campbell maintains that a rapidly blinking turn signal works as
intended—to notify the driver of a potential problem—and equipment that works
according to design must be in good working condition. But the rapid blinking is
an alert that something, be it an expired bulb or faulty wiring, might not be in good
working condition. Thus, the rapidly blinking turn signal provided McCannon
with reasonable suspicion to believe that Campbell’s car was in violation of the
traffic code. On that basis, 10 we affirm the District Court’s holding that
10
The District Court also noted that even if McCannon was mistaken that the rapidly
blinking turn signal violated the “good working condition” requirement of O.C.G.A. § 40–8–26,
13
Case: 16-10128 Date Filed: 08/14/2020 Page: 14 of 39
McCannon’s initiation of the stop was lawful and proceed to the issue of whether
his unrelated inquiries turned Campbell’s seizure into a Fourth Amendment
violation.
B.
Even if the police have reasonable suspicion to make a traffic stop, they do
not have unfettered authority to detain a person indefinitely. The detention is
“limited in scope and duration.” Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct.
1319, 1326 (1983) (plurality opinion). Officers must conduct their investigation
diligently. See Rodriguez, 135 S. Ct. at 1616 (“[T]he Government acknowledges
that an officer always has to be reasonably diligent.” (quotation omitted)); see also
United States v. Place, 462 U.S. 696, 709, 103 S. Ct. 2637, 2645 (1983) (“[I]n
assessing the effect of the length of the detention, we take into account whether the
police diligently pursue their investigation.”). And officers cannot unlawfully
prolong a stop. See Rodriguez, 135 S. Ct. at 1614–16.
The Supreme Court expanded on unlawfully prolonged traffic stops in
Rodriguez. In that case, police pulled over a vehicle for swerving onto the
shoulder. Id. at 1612. After writing a warning ticket and returning the license,
registration, and proof of insurance to the driver, the officer made the driver and
his mistake would be a reasonable mistake of law and thus “give rise to the reasonable suspicion
necessary” to validate the stop and uphold the seizure. See Heien, 135 S. Ct. at 536.
14
Case: 16-10128 Date Filed: 08/14/2020 Page: 15 of 39
passenger wait for seven or eight minutes while he conducted a dog sniff. Id. at
1613. The dog discovered contraband, and the driver sought to suppress the
evidence. Id. On appeal, the Eighth Circuit determined that a seven or eight
minute delay is a permissible de minimis intrusion. Id. at 1614. But the Supreme
Court rejected the de minimis standard. Id. at 1615–16.
The Supreme Court explained that a traffic stop is analogous to a Terry stop.
Id. at 1614. As such, the scope of the stop “must be carefully tailored to its
underlying justification.” Id. (quoting Royer, 460 U.S. at 500). Thus, in the
context of a traffic stop, “the tolerable duration of police inquiries . . . is
determined by the seizure’s mission[.]” Rodriguez, 135 S. Ct. at 1614 (quotation
omitted). The mission of a traffic stop is “to address the traffic violation that
warranted the stop . . . and attend to related safety concerns[.]” Id. The stop may
“last no longer than is necessary” to complete its mission. Id. (quoting Royer, 460
U.S. at 500). In other words, “[a]uthority for the seizure . . . ends when tasks tied
to the traffic infraction are—or reasonably should have been—completed.” Id.
The question becomes, which tasks are related to the stop’s purpose? The
Court identified a number of tasks it says are “ordinary inquiries incident to [the
traffic] stop.” Id. at 1615 (alteration in original). These inquiries include
“checking the driver’s license, determining whether there are outstanding warrants
against the driver, and inspecting the automobile’s registration and proof of
15
Case: 16-10128 Date Filed: 08/14/2020 Page: 16 of 39
insurance.” Id. Inquiries such as these ensure “that vehicles on the road are
operated safely and responsibly.” Id.
The Court has also identified tasks that are not related to a stop’s purpose.
In Arizona v. Johnson, for example, the Court said asking about a passenger’s gang
affiliation is not related. See 555 U.S. 323, 332, 129 S. Ct. 781, 787 (2009).
Similarly, using a dog to search for contraband is not related. Rodriguez, 135 S.
Ct. at 1615. A dog sniff lacks “the same close connection to roadway safety as the
ordinary inquiries,” and cannot be “fairly characterized as part of the officer’s
traffic mission.” Id. Instead, a dog sniff is “aimed at detect[ing] evidence of
ordinary criminal wrongdoing.” Id. (alteration in original) (citation omitted).
In short, related tasks are the “ordinary inquiries incident to a traffic stop”;
unrelated tasks are “other measures aimed at detecting criminal activity more
generally.” See United States v. Green, 897 F.3d 173, 179 (3d Cir. 2018)
(interpreting Rodriguez).
That said, unrelated inquiries are permitted so long as they do not add time
to the stop. Rodriguez, 135 S. Ct. at 1615 (“An officer . . . may conduct certain
unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so
in a way that prolongs the stop, absent . . . reasonable suspicion.”). This seems
counterintuitive: how could an officer conduct unrelated inquiries without adding
at least some time to the stop? Precedent provides the answer.
16
Case: 16-10128 Date Filed: 08/14/2020 Page: 17 of 39
In Illinois v. Caballes, an officer making a stop radioed dispatch to report it.
543 U.S. 405, 406, 125 S. Ct. 834, 836 (2005). A second officer “overheard the
transmission and immediately headed for the scene with his narcotics-detection
dog.” Id. The second officer conducted the dog sniff while the first officer “was
in the process of writing a warning ticket[.]” Id. Thus, because there were
multiple officers, one of them was able to conduct an unrelated inquiry without
adding time to the stop.
Similarly, in Johnson, three officers pulled over a car with three passengers.
555 U.S. at 327, 129 S. Ct. at 784. While one officer made the ordinary inquiries
into the driver’s license and registration, another officer questioned the passenger,
Johnson. Id. at 327–28. This officer made unrelated inquiries into whether
Johnson was affiliated with a gang, id. at 328, but because the first officer
simultaneously followed up on the purpose of the stop, it did not add any time.
In this way, the Rodriguez Court suggested that its decision—commanding
that a stop “may last no longer than is necessary” to complete its purpose—was a
simple application of its precedents. 135 S. Ct. at 1614 (“Our decisions in
Caballes and Johnson heed these constraints. In both cases, we concluded that the
Fourth Amendment tolerated certain unrelated investigations that did not lengthen
the roadside detention.” (emphasis added)). But this Court, in conjunction with a
17
Case: 16-10128 Date Filed: 08/14/2020 Page: 18 of 39
number of our sister circuits, 11 had interpreted the precedent cases to establish a
different standard.
In United States v. Griffin, 696 F.3d 1354 (11th Cir. 2012), we considered
the appropriate standard to decide prolongation cases. As part of that
consideration, we looked to the Supreme Court’s ruling in Johnson,12 where the
Court condoned unrelated inquiries “so long as those inquiries do not measurably
extend the duration of the stop.” Griffin, 696 F.3d at 1361 (quoting Johnson, 555
U.S. at 333, 129 S. Ct. at 788).13 Based on the language from Johnson, we
determined that the issue of whether unrelated questions “measurably extended or
11
Almost all of the circuits developed a rule looking to whether the length of the stop as a
whole was reasonable and finding that brief extensions did not transform the stop into an
unreasonable seizure. See United States v. McBride, 635 F.3d 879, 883 (7th Cir. 2011); United
States v. Everett, 601 F.3d 484, 492 (6th Cir. 2010); United States v. Harrison, 606 F.3d 42, 45
(2d Cir. 2010) abrogated by United States v. Gomez, 877 F.3d 76, 89–90 (2d Cir. 2017); United
States v. Chaney, 584 F.3d 20, 26 (1st Cir. 2009); United States v. Farrior, 535 F.3d 210, 220
(4th Cir. 2008) abrogation recognized by United States v. Williams, 808 F.3d 238, 246–47 (4th
Cir. 2015); United States v. Turvin, 517 F.3d 1097, 1101 (9th Cir. 2008); United States v.
Olivera-Mendez, 484 F.3d 505, 510–11 (8th Cir. 2007); United States v. Stewart, 473 F.3d 1265,
1269 (10th Cir. 2007).
12
We also looked to the Supreme Court’s decision in Muehler v. Mena, 544 U.S. 93, 125
S. Ct. 1465 (2005). See Griffin, 696 F.3d at 1360–61. In Mena, an officer questioned “a person
about her immigration status while she was detained during the execution of a search warrant—
by other law enforcement officers—for deadly weapons and evidence of gang membership.” Id.
(citing Mena, 544 U.S. at 95–6, 125 S. Ct. at 1468). Because the questioning did not prolong the
detention, the Court held that the officers did not need independent reasonable suspicion to ask
about her immigration status. Mena, 544 U.S. at 101, 125 S. Ct. at 1471. Thus, Mena is fully
consistent with the idea that unrelated inquiries are permitted only if they do not add time to the
stop. The unrelated questions did not prolong the stop because other officers executed the search
warrant.
13
The standard from Johnson resembled the one from Caballes, where the Court said a
traffic stop “can become unlawful if it is prolonged beyond the time reasonably required to
complete that mission.” Caballes, 543 U.S. at 407, 125 S. Ct. at 837.
18
Case: 16-10128 Date Filed: 08/14/2020 Page: 19 of 39
prolonged the duration of the stop so as to make it unreasonable under the Fourth
Amendment” should be decided by an overall reasonableness standard. Id. at 1362
(“To address this issue, we do not simply look at the interval of prolongation in
isolation, but rather assess the length of the stop as a whole, including any
extension of the encounter, by undertaking a fact-bound, context-dependent
analysis of all of the circumstances concerning the stop and the unrelated
questions.” (quotation omitted)).
But the Supreme Court rejected the overall reasonableness standard in
Rodriguez. In that case, the Government argued that it is acceptable to
“incremental[ly] prolong a stop” for unrelated inquiries so long as the officer is
diligent “and the overall duration of the stop remains reasonable[.]” Rodriguez,
135 S. Ct. at 1616 (alteration in original) (emphasis added) (quotation omitted).
The Court disagreed, noting that the Government’s position would effectively
grant officers “bonus time to pursue an unrelated criminal investigation” if they
complete the “traffic-related tasks expeditiously[.]” Id. That cannot be right.
Instead, courts must look at what an officer actually does: if he “can complete
traffic-based inquiries expeditiously, then that is the amount of ‘time reasonably
required to complete [the stop’s] mission.’” Id. (alteration in original) (quoting
Caballes, 543 U.S. at 407, 125 S. Ct. at 837). And “a traffic stop prolonged
19
Case: 16-10128 Date Filed: 08/14/2020 Page: 20 of 39
beyond that point is unlawful.” Id. (quotation omitted). Put differently, a stop can
be unlawfully prolonged even if done expeditiously.
The Supreme Court also rejected the reasoning from Griffin. In Griffin, an
officer stopped and frisked a person suspected of theft. Griffin, 696 F.3d at 1357.
During the frisk, the officer asked the suspect: “Hey, what’s in your pocket? Why
do you have batteries?” Id. These questions were “unrelated to the attempted theft
or the frisk for weapons,” id. at 1358, and prolonged the stop by about 30 seconds,
id. at 1362. We offered two reasons for finding that the stop was not unlawfully
prolonged. Id. First, the officer “acted diligently.” Id. But as explained above,
diligence does not provide an officer with cover to slip in a few unrelated
questions. Second, the officer “had not yet completed his investigation.” Id. The
Rodriguez Court rebuffed this argument as well: the “critical question . . . is not
whether the [unrelated inquiry] occurs before or after the officer issues the
ticket . . . but whether conducting the [unrelated inquiry] ‘prolongs’—i.e., adds
time to—‘the stop.’” Rodriguez, 135 S. Ct. at 1616. In other words, an officer can
prolong a stop before or after completing the investigation.
Neither can Griffin be distinguished because of the time difference.
Although the unrelated questions in Griffin prolonged the stop by about 30
seconds, Griffin, 696 F.3d at 1362, and the dog sniff in Rodriguez prolonged the
stop by seven to eight minutes, Rodriguez, 135 S. Ct. at 1613, the Supreme Court
20
Case: 16-10128 Date Filed: 08/14/2020 Page: 21 of 39
was clear that the length of time is immaterial. The Court rejected the Eighth
Circuit’s de minimis rule, under which minor extensions of seizures were tolerated.
See id. at 1615–16. To differentiate Griffin on the grounds that a 30 second delay
is less serious than a seven minute delay would revive a standard—be it
characterized as a de minimis rule or as overall reasonableness—that the Supreme
Court specifically rejected.
Bottom line: Griffin cannot be squared with Rodriguez. Accordingly, we
find that Rodriguez abrogates Griffin.
Still, Campbell’s interpretation of Rodriguez goes too far. He suggests, for
example, that the officer unlawfully prolonged the stop by taking a few seconds to
retrieve his coat or by looking Campbell in the eye while they conversed rather
than exclusively focusing on writing the ticket. But Rodriguez does not prohibit all
conduct that in any way slows the officer from completing the stop as fast as
humanly possible.14 It prohibits prolonging a stop to investigate other crimes. Id.
at 1616 (“On-scene investigation into other crimes . . . detours from that
14
Of course, the officer could be so slow as to warrant a claim that the officer was not
diligent. As the Rodriguez Court noted, “an officer always has to be reasonably diligent.”
Rodriguez, 135 S. Ct. at 1616 (quotation omitted). On that question, there is still no bright-line
time limit on how long a stop can last before it becomes an unreasonable seizure. See United
States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 1575 (1985) (“Obviously, if an
investigative stop continues indefinitely, at some point it can no longer be justified as an
investigative stop. But our cases impose no rigid time limitation on Terry stops.”); see also
Place, 462 U.S. at 709, 103 S. Ct. at 2646 (“[W]e decline to adopt any outside time limitation for
a permissible Terry stop[.]”).
21
Case: 16-10128 Date Filed: 08/14/2020 Page: 22 of 39
mission.”). The problem with the dog sniff was that it was “a measure aimed at
detecting evidence of ordinary criminal wrongdoing.” Id. at 1615 (quotation
omitted). And efforts to “detect crime in general or drug trafficking in particular”
are “different in kind” from interests in highway and officer safety. Id. at 1616.
We think the proper standard emanating from Rodriguez is this: a stop is
unlawfully prolonged when an officer, without reasonable suspicion, diverts from
the stop’s purpose and adds time to the stop in order to investigate other crimes.
See id. at 1614–16; see also Greene, 897 F.3d at 179. That is, to unlawfully
prolong, the officer must (1) conduct an unrelated inquiry aimed at investigating
other crimes (2) that adds time to the stop (3) without reasonable suspicion.
Most circuits that have addressed Rodriguez have reached a similar
conclusion. See United States v. Stewart, 902 F.3d 664, 674 (7th Cir. 2018)
(suggesting that 75 seconds used to call for backup might unlawfully prolong the
stop, but the record was inadequate to determine if the officer’s purpose was for
safety or a dog sniff), reh’g en banc denied (Oct. 26, 2018); United States v. Clark,
902 F.3d 404, 410–11 (3d Cir. 2018) (finding that 20 seconds of unrelated
questioning prolonged the stop); United States v. Bowman, 884 F.3d 200, 219 (4th
Cir. 2018) (finding that officer did not have consent or reasonable suspicion to
question passenger after mission completed); United States v. Gomez, 877 F.3d 76,
88–93 (2d Cir. 2017) (concluding that it is not a reasonableness test but whether
22
Case: 16-10128 Date Filed: 08/14/2020 Page: 23 of 39
the unrelated inquiry adds time to the stop at all, and finding that asking a few
questions about drugs prolonged the stop); United States v. Gorman, 859 F.3d 706,
715 (9th Cir. 2017) (holding that unrelated questioning prolonged the stop); United
States v. Macias, 658 F.3d 509, 518–19 (5th Cir. 2011) (deciding that unrelated
questions violated the standard which says an officer can ask such questions only if
they do not extend the duration of the stop). But see United States v. Collazo, 818
F.3d 247, 257–58 (6th Cir. 2016) (using language suggesting an overall
reasonableness standard).
With this understanding of Rodriguez, we address the case at hand. On
appeal, Campbell points to several actions that he maintains prolonged the stop.
First, he identifies the numerous questions McCannon asked about his travel plans.
McCannon spent approximately two minutes asking Campbell where he was going
and why. We find that these questions were related to the purpose of the stop.
Generally, questions about travel plans are ordinary inquiries incident to a
traffic stop. See United States v. Dion, 859 F.3d 114, 125 (1st Cir. 2017) (“[O]ur
case law allows an officer carrying out a routine traffic stop . . . to inquire into the
driver’s itinerary.”), cert. denied, 138 S. Ct. 346 (2017); United States v. Bowman,
660 F.3d 338, 343 (8th Cir. 2011) (stating that tasks related to a traffic violation
include “inquiring about the occupants’ destination, route, and purpose”); United
States v. Brigham, 382 F.3d 500, 508 (5th Cir. 2009) (en banc) (“An officer may
23
Case: 16-10128 Date Filed: 08/14/2020 Page: 24 of 39
also ask about the purpose and itinerary of a driver’s trip during the traffic stop.”);
United States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003) (“[Q]uestions relating to
a driver’s travel plans ordinarily fall within the scope of a traffic stop.”); United
States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001) (“[W]e have repeatedly
held (as have other circuits) that questions relating to a driver’s travel plans
ordinarily fall within the scope of a traffic stop.”).
More specifically, in this case, Campbell’s travel plans were relevant to the
traffic violation—a malfunctioning turn signal. In McCannon’s experience, a
rapidly blinking turn signal indicates that a bulb is either out or is about to go out.
Since Campbell was traveling for a long distance, the chances that his turn signal
would stop working while he was driving increased accordingly. For this reason,
asking about Campbell’s travel plans was a related and prudent part of
investigating his malfunctioning turn signal. 15
Campbell also argues that the questions about whether he had contraband in
his car unlawfully prolonged the stop. Just before asking for Campbell’s consent
to search the car, McCannon queried:
“[Do you have] any counterfeit merchandise that you are taking to
your relatives over there in Augusta? And what I mean by that is‐‐any
15
Admittedly, McCannon acknowledged that the reason he took such interest in
Campbell’s destination was because that part of Augusta was a high crime area. But in this area
of the law, we do not consider officers’ subjective motivations. See Whren, 517 U.S. at 813, 116
S. Ct. at 1774.
24
Case: 16-10128 Date Filed: 08/14/2020 Page: 25 of 39
purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs or
anything like that? Any illegal alcohol? Any marijuana? Any cocaine?
Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You
don’t have any dead bodies in your car?”
These questions were not related to a traffic stop for a malfunctioning turn signal
and allegedly crossing the fog line. These questions were inquiring about “crime
in general [and] drug trafficking in particular.” See Rodriguez, 135 S. Ct. at 1616.
They added 25 seconds to the stop. And the Government does not contend that
McCannon had reasonable suspicion. Consequently, we find that these questions
unlawfully prolonged the stop.
C.
Normally, if an officer unlawfully prolongs a stop, any evidence uncovered
as a result would be suppressed. See Davis, 564 U.S. at 231–32, 131 S. Ct. at
2423. But the exclusionary rule is subject to exceptions. Id. at 236–38, 131 S. Ct.
at 2426–27. 16
Davis excepts from the exclusionary rule evidence the police obtain in
searches conducted “in objectively reasonable reliance on binding appellate
precedent[.]” Id. at 232, 131 S. Ct. at 2423–24. This is because the “sole purpose”
16
As an aside, we cannot use the good faith exception to avoid deciding whether there
was a constitutional violation. To do so would deny the retroactive effect of constitutional
criminal procedure. See Davis, 564 U.S. at 243–44, 131 S. Ct. at 2430–31 (“[T]he retroactive
application of a new rule of substantive Fourth Amendment law raises the question whether a
suppression remedy applies; it does not answer that question.”).
25
Case: 16-10128 Date Filed: 08/14/2020 Page: 26 of 39
of the exclusionary rule is to deter Fourth Amendment violations, id. at 236, 131 S.
Ct. at 2426, and suppressing evidence obtained from a search that was lawful when
conducted would “do nothing to deter” police wrongdoing while coming “at a high
cost to both the truth and the public safety,” id. at 232, 131 S. Ct. at 2423.
At the time of Campbell’s arrest, Griffin was our last word on the issue and
the closest precedent on point. Griffin, 696 F.3d 1354. As noted above, Griffin
held that an officer’s unrelated questioning lasting no more than 30 seconds did not
unconstitutionally prolong the stop because the officer “had not yet completed his
investigation . . . and because he acted diligently[.]” Id. at 1362.
The facts here fit squarely within Griffin’s parameters. McCannon lawfully
stopped Campbell to investigate a traffic violation. His unrelated questions lasted
25 seconds. He asked them before he had completed the stop by issuing the
warning ticket. And the District Court found that McCannon “diligently
investigated” the traffic violations and “expeditiously” completed the citations.
We cannot say the District Court clearly erred in so finding. As such, Griffin
controls, and McCannon acted in “objectively reasonable reliance on binding
appellate precedent[.]” Davis, 564 U.S. at 232, 131 S. Ct. at 2423–24.
D.
The Government, which is the appellee here, did not raise the applicability
of the good faith exception on appeal, although the issue was briefed in the District
26
Case: 16-10128 Date Filed: 08/14/2020 Page: 27 of 39
Court at the District Court’s specific request. Even assuming the Government
waived the good-faith issue by failing to raise it in its brief, 17 we still dispose of
this appeal on good-faith grounds because the issue was resolved, as a matter of
law, by our analysis of the issue properly before us—i.e., the constitutionality of
the search.
To elaborate, our analysis makes clear that the search was permissible, as a
matter of law, under binding precedent at the time it occurred, see Griffin, 696 F.3d
at 1362, and the law presumes that an officer’s actions, which objectively comply
with binding precedent, were done in good faith, see Whren v. United States, 517
U.S. 806, 813–14, 116 S. Ct. 1769, 1774–75 (1996) (stating that we do not view an
officer’s actions based on subjective intent, but rather based on whether the actions
were objectively legally justifiable based on the circumstances). Therefore, our
17
Because this is a criminal case, the Government could not have raised a good-faith
argument in a cross appeal. Wayne R. La Fave et al., Criminal Procedure § 27.3(b) (4th ed.
2015) (noting that the Government can only cross appeal with statutory authorization, and stating
that “the primary authorization for appeals by the government in the federal courts is the
Criminal Appeals Act”); see also 18 U.S.C.A. § 3731 (listing the few circumstances under which
the government may cross appeal). Furthermore, it is worth noting, even if the Government
could have filed a motion for reconsideration following the District Court’s judgment—which is
not clear, in part because the Federal Rules of Criminal Procedure do not provide a rule
equivalent to Fed. R. Civ. P. 59(e)—the motion almost certainly would have been denied. See
United States v. Gossett, 671 F. App’x 748, 749 (11th Cir. 2016) (“We have not addressed in a
published opinion under what circumstances a district court should grant a motion to reconsider
in a criminal case. In civil cases, a motion for reconsideration cannot be used to relitigate old
matters, raise arguments, or present evidence that could have been raised prior to the entry of
judgment, including new arguments that could have been raised but were not.” (citing
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009))). Thus, the only way the
Government could have raised the good-faith issue on appeal is by including it in its appellate
brief.
27
Case: 16-10128 Date Filed: 08/14/2020 Page: 28 of 39
analysis of the constitutionality of the search resolved the good-faith issue in the
Government’s favor as a matter of law, and we are not required to turn a blind eye
to the resolution of that issue merely because the issue was waived.
1.
Waiver is a prudential doctrine, not a jurisdictional limitation. United States
v. Castellanos, 608 F.3d 1010, 1015 (8th Cir. 2010). The degree to which we
adhere to the doctrine and the conditions under which we will excuse it is up to the
appellate court. J. Dickson Phillips, Jr., The Appellate Review Function: Scope of
Review, 47 Law & Cont. Probs. 1, 3 (1984); see also Singleton v. Wulff, 428 U.S.
106, 121, 96 S. Ct. 2868, 2877 (1976).
In the criminal context, we have held that we will only reach a waived issue
if it constitutes a manifests injustice. United States v. Tamayo, 80 F.3d 1514, 1521
(11th Cir. 1996). We equate manifest injustice to plain error. United States v.
Quintana, 300 F.3d 1227, 1232 (11th Cir. 2002) (citations omitted), abrogated on
other grounds by United States v. Doyle, 857 F.3d 115 (11th Cir. 2017). As an
initial matter, since the Government could not cross-appeal the District Court’s
failure to address the good faith exception, we could not apply the manifest
injustice rule on the Government’s behalf. Aside from that, the manifest injustice
rule is not suited for cases like the instant one. Plain error review is inapplicable
here because there is nothing to review—the good faith exception was properly
28
Case: 16-10128 Date Filed: 08/14/2020 Page: 29 of 39
before the District Court, but the District Court did not reach it. There can be no
error, plain or otherwise, when there is no ruling on the issue in point.
Accordingly, we must decide, in the criminal context, when, if ever, we will
entertain arguments raised below but not briefed by the Government in an appeal
challenging the defendant’s conviction. Without announcing a bright-line rule, we
hold that we can review the applicability of the waived good-faith issue here
because of the narrow posture of this case18 and because the waived issue is
resolved, as a matter of law, by our analysis of the constitutionality of McCannon’s
search in this case. Multiple policy considerations bolster this conclusion.
2.
The waiver doctrine upholds the principle that “appellate courts do not sit as
self-directed boards of legal inquiry and research.” Carducci v. Regan, 714 F.2d
171, 177 (D.C. Cir. 1983). Instead, our appellate courts are passive, neutral
decisionmakers. See Stephan Landsman, Readings on Adversarial Justice: The
American Approach to Adjudication, 2 (1988). Here, our analysis of the issue
properly raised by the parties—i.e., the constitutionality of McCannon’s search—
resolves the waived issue—i.e., whether McCannon was acting in good faith on
18
Specifically, (1) the good-faith argument was raised and briefed by both parties in the
District Court, at the District Court’s request; (2) the District Court did not reach the issue, even
though it was an adequate alternative basis for the denial of the motion to suppress; and (3) the
Government did not explicitly raise the issue in its brief on appeal.
29
Case: 16-10128 Date Filed: 08/14/2020 Page: 30 of 39
binding precedent when he executed the search—as a matter of law. Therefore, we
remain passive and neutral, without becoming a self-directed board of legal
inquiry, even though we dispose of the case on an issue that was technically
waived on appeal.
Below, the District Court held that Rodriguez did not disturb Griffin. 19 In
determining whether the Court erred, we necessarily have to decide, first, what
police conduct was constitutional under Griffin, and, second, whether Rodriguez
conflicts with the conclusion of Griffin. Because we have to decide what was
constitutional under Griffin first, we necessarily have an answer to whether the
good faith exception applies to McCannon’s search because we presume that a
police officer acting in accordance with the law in place at the time of his conduct
is doing so in good-faith reliance on the binding law, regardless of the officer’s
subjective intent. See Whren, 517 U.S. at 813–14, 116 S. Ct. at 1774–75; Davis,
568 U.S. at 238–39, 131 S. Ct. at 2427–48 (describing the good faith exception as
an objective test). As such, because the analysis of the issue properly before us
made clear, as a matter of law, that McCannon’s search was permissible under
Griffin, which was the controlling precedent at the time, the search also was done
19
Rodriguez had not yet been issued when McCannon conducted the search of Campbell.
Griffin was thus the binding precedent regarding the prolongation of a search at the time.
30
Case: 16-10128 Date Filed: 08/14/2020 Page: 31 of 39
in good faith, as a matter of law, under Davis.20 As such, we will not pretend that
this purely legal issue has not been resolved merely because it was technically
waived by the Government. The prudential waiver doctrine does not require us to
close our eyes to a purely legal conclusion that jumps off the page as a result of the
analysis of the issues properly raised on appeal.
3.
Multiple additional policy considerations buttress our conclusion that we
need not ignore the legal conclusion that the good faith exception to the
exclusionary rule applies here.
First, there are no concerns about judicial economy here because the good-
faith issue is a pure question of law. Moreover, it is a pure question of law that has
already been resolved by our analysis of the other issue before us. Therefore, it is
hard to imagine a situation in which less judicial energy would be required to
resolve an issue not raised by the parties. 21
20
Importantly, therefore, resolution of the waived issue required no additional legal
research or inquisition on one party’s behalf.
21
Judicial economy is mainly a concern when the waived issue is fact-bound. For
example, when a fact-bound issue is raised for the first time on appeal, considering the issue is
inefficient; the appellate court might need to hold the appeal in abeyance while retaining
jurisdiction, remand the case to the trial court so the material facts can be determined, and armed
with the trial court’s findings, resume the appeal. This is the opposite case—no judicial energy
is wasted when the issue is purely legal and is resolved by our analysis of the non-waived issues.
31
Case: 16-10128 Date Filed: 08/14/2020 Page: 32 of 39
Second, in these circumstances, i.e., where a district court has multiple
alternative arguments before it and decides the issue only on one ground, we are
reluctant to reverse a district court on a purely legal issue when it reaches the
correct result, even if it applies faulty reasoning or rests the decision on an
incorrect ground. If we were to reverse and remand the case without deciding the
waived issue, the district court would be precluded from considering it on remand,
because once we deem an issue waived, the law of the case doctrine dictates that it
is waived for all future stages of the same litigation. See Piambino v. Bailey, 757
F.2d 1112 (11th Cir. 1985). 22 Therefore, in effect, the parties here would have
stripped the District Court of the ability to rest its judgment on an adequate
alternative ground—an alternative ground that the District Court required the
parties to brief and upon which the Court could have relied in deciding Campbell’s
motion to suppress.
Third, a primary concern contemplated by the waiver doctrine is notice. A
party is due fair notice regarding what issues are at play on appeal. Because the
District Court specifically asked for supplemental briefing on the good faith issue
here, Campbell had notice that the issue was potentially relevant. Ideally,
22
In this case, for instance, were we to leave the good-faith issue unanswered and
reversed the District Court’s suppression ruling, Campbell would move the District Court to
enforce the mandate of our judgment, which effectively treated the Government’s good-faith
argument as abandoned and thus rejected on the merits.
32
Case: 16-10128 Date Filed: 08/14/2020 Page: 33 of 39
Campbell would have had an opportunity to re-argue the applicability of the good
faith exception in his reply brief on appeal. However, we have at our disposal the
arguments the appellant made before the District Court. This relieves some of the
concerns about notice because we are not inventing arguments for Campbell.
Instead, we are relying on the arguments he already made on the issue.
4.
Accordingly—while emphasizing that our holding in this case is a narrow
one, limited to the unique procedural circumstances presented here—we hold that
we may reach the good faith exception because the issue was resolved, as a matter
of law, by our analysis of the issue properly before us.
III.
Deputy McCannon had reasonable suspicion to stop Campbell for a traffic
violation. He unlawfully prolonged the stop when he asked unrelated questions
without reasonable suspicion about whether Campbell was trafficking contraband.
Because these questions were permitted under binding precedent at the time,
however, the good faith exception applies, and we decline to invoke the
exclusionary rule. Thus, there is no need to consider whether Campbell’s consent
33
Case: 16-10128 Date Filed: 08/14/2020 Page: 34 of 39
purged the taint from the unlawfully prolonged seizure.23 Nor do we reach the
question of whether the consent issue was waived.
AFFIRMED.
23
When a stop is unlawfully prolonged, the seizure becomes unconstitutional, and any
subsequent discovery of evidence produced by that seizure would normally be tainted. However,
if the defendant consents to the search after the stop is unlawfully prolonged but before the
evidence is discovered, the consent can purge the taint. See United States v. Santa, 236 F.3d
662, 676 (11th Cir. 2000). To do this, the Government must show (1) that the consent is
voluntary and (2) that the consent is not a product of the illegal seizure. United States v.
Delancy, 502 F.3d 1297, 1308 (11th Cir. 2007). Since the evidence from McCannon’s search is
admissible under the good faith exception, we are spared from pursuing this analysis.
34
Case: 16-10128 Date Filed: 08/14/2020 Page: 35 of 39
MARTIN, Circuit Judge, concurring in part and dissenting in part:
The Majority is right that, under the Supreme Court’s decision in Rodriguez
v. United States, 575 U.S. __, 135 S. Ct. 1609 (2015), the patrolman here
unlawfully prolonged the traffic stop of Mr. Campbell. Maj. Op. at 23–25. It is
also true that our Court’s decision in United States v. Griffin, 696 F.3d 1354 (11th
Cir. 2012), which established this court’s pre-Rodriguez standard for prolongation,
cannot be squared with the Supreme Court’s subsequent ruling in Rodriguez. Maj.
Op. at 18–21.
I write separately from the Majority, however, because in contrast to the
result reached in the Majority opinion, I believe Mr. Campbell should prevail. I
would not apply the exclusionary rule’s good faith exception to affirm the District
Court’s denial of Mr. Campbell’s suppression motion because the Government
never made that argument on appeal. Indeed, the government did not make this
argument despite having been put on notice of the issue by the District Court and
having ample opportunity to raise it. Due to the government’s waiver of this
argument, I would suppress evidence derived from the unlawfully prolonged traffic
stop of Mr. Campbell as fruit of the poisonous tree.
Under this Court’s precedent, “a party seeking to raise a claim or issue on
appeal must plainly and prominently so indicate. Otherwise, the issue—even if
properly preserved at trial—will be considered abandoned.” United States v.
35
Case: 16-10128 Date Filed: 08/14/2020 Page: 36 of 39
Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003); see also Access Now, Inc. v.
Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[T]he law is by now well
settled in this Circuit that a legal claim or argument that has not been briefed
before the court is deemed abandoned and its merits will not be addressed.”). Our
Court regularly applies this rule to bar arguments criminal defendants and pro se
plaintiffs made in the trial court but neglected to raise again on appeal. See, e.g.,
Hall v. Thomas, 611 F.3d 1259, 1284 n.37, 1289 n.40, 1290 n.41 (11th Cir. 2010)
(holding a juvenile sentenced to life imprisonment waived certain arguments raised
in his habeas petition by failing to reassert them on appeal); Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008) (per curiam) (“While we read briefs filed by
pro se litigants liberally, issues not briefed on appeal by a pro se litigant are
deemed abandoned.” (citation omitted)); cf. United States v. Vanorden, 414 F.3d
1321, 1323 & n.1 (11th Cir. 2005) (per curiam) (acknowledging “neither Blakely
nor Booker had been decided” at the time a criminal defendant first appealed his
sentence, but nonetheless holding the defendant abandoned challenges to his
sentence on “Sixth Amendment-Apprendi-Blakely-Booker grounds” by failing to
raise the issue in his first appeal).
This very case gives insight into this Court’s routine reliance upon waiver to
winnow issues presented in the appeals we consider. Here, both the government
and this panel suggested at oral argument that Mr. Campbell might have waived
36
Case: 16-10128 Date Filed: 08/14/2020 Page: 37 of 39
his fruit-of-the-poisonous tree argument because, although plainly mentioned in his
opening brief, the issue was not separately listed as a claim in Campbell’s
“Statement of Issues.” See Oral Arg. at 11:36–11:44 (“We have a hard-and-fast
rule in this Circuit. It’s pretty punitive, really. That if you don’t put it in the brief
as an issue, we don’t consider it.” (comment of Judge Tjoflat)), 13:40–14:20
(government arguing the Court should deem waived issues not prominently raised
in a brief, because “[w]hen we’re coming before this Court it’s important that we
know as the responding party, as the appellee, what issues the appellant believes
are germane”).
Nevertheless, the Majority affirms the District Court’s denial of Mr.
Campbell’s suppression motion on the good faith exception, an argument the
government never asserted on appeal. To be clear, the government did not argue
the good faith exception in its initial brief, at oral argument, or in any supplemental
filing. Yet the Majority invokes the good faith exception based on briefing the
parties submitted in District Court, at the explicit direction of that court.
The Majority also holds that the application of the good faith exception to
this case is “plain.” Maj. Op. at 28. I must say, it is not “plain” to me. The
government is a sophisticated, often-appearing party before this Court. As such,
the government should be left to the decisions it makes about what arguments it
wants us to consider. We know the government was aware of the issue of the
37
Case: 16-10128 Date Filed: 08/14/2020 Page: 38 of 39
“good faith exception” here, because the District Court specifically requested
briefing on the subject. Under the circumstances, I would not reach out to decide
Mr. Campbell’s fate on a ground abandoned by the government.
Neither would I affirm on the ground Mr. Campbell consented to the
unlawfully-prolonged search. The Majority did not reach this issue because it
concluded the evidence was admissible under the good faith exception. Maj. Op.
at 5 & nn.5, 17. However, just as the government never raised the good faith
exception, it neglected to mention the possibility of Mr. Campbell’s consent until
this Court prompted it to do so. See Order Denying Mot. to Suppress at 14 (“The
Government, however, does not argue, nor does the evidence establish, that Deputy
McCannon had reasonable suspicion of criminal activity beyond the traffic
violations to detain Defendant or that the encounter had become consensual before
Defendant gave consent to search his vehicle.”).1 “The government bears the
burden of proving both the existence of consent and that the consent was not a
function of acquiescence to a claim of lawful authority but rather was given freely
and voluntarily.” United States v. Yeary, 740 F.3d 569, 581 (11th Cir. 2014)
(quotation marks omitted). The government’s failure to raise Mr. Campbell’s
1
Even though the government failed to raise consent before the District Court, the
District Court nonetheless briefly addressed the issue, finding that because “Deputy McCannon
retained [Mr. Campbell’s] driver’s license throughout the encounter, . . . therefore [Mr.
Campbell] was not free to leave.”
38
Case: 16-10128 Date Filed: 08/14/2020 Page: 39 of 39
consent before the District Court and on appeal means this argument is also
waived. See Jernigan, 341 F.3d at 1283 n.8.
I would not put this Court in the business of resuscitating arguments the
government was made aware of, then clearly abandoned. In my experience, this
Court rarely extends the same courtesy to the criminal defendants and pro se
litigants who come before us. Based on the Majority’s conclusion that the
patrolman unlawfully prolonged the traffic stop, I would reverse the District
Court’s denial of Mr. Campbell’s suppression motion.
I respectfully dissent from the Majority’s decision not to suppress the search
of Mr. Campbell’s automobile.
39