dissenting.
I respectfully dissent. The question of whether a police officer can ask a motorist stopped for a traffic violation questions unrelated to the initial reason for the stop, aside from questions related to weapons, appears to be one of first impression in Indiana. The case law from other jurisdictions is mixed on this point, but I would side with those cases holding that police officers generally may ask such questions.
Regarding the Fourth Amendment, I acknowledge that there are cases from some federal and state courts holding that police generally may not ask motorists stopped for a traffic violation questions unrelated to the reason for the stop. See, e.g., U.S. v. Holt, 264 F.3d 1215, 1230 (10th Cir.2001) (rejecting government’s position that police officers may ask any questions during course of traffic stop, regardless of whether it extends the length of the stop). There are, however, a number of cases holding directly the opposite. See, e.g., U.S. v. Childs, 277 F.3d 947, 954 (7th Cir.2002), cert. denied (holding the Fourth Amendment did not prohibit police from asking stopped motorist whether he was in possession of any marijuana); U.S. v. Shabazz, 993 F.2d 431, 436 (5th Cir.1993) (“we reject any notion that a police officer’s questioning, even on a subject unrelated to the purpose of the stop, is itself a Fourth Amendment violation.”).
The United States Supreme Court has yet to address this issue directly. It has, however, held that the Fourth Amendment *284does not prohibit police from using a narcotics-detection dog during a lawful traffic stop, even in the complete absence of reasonable suspicion, so long as the canine sweep does not extend the length of the traffic stop. Illinois v. Caballes, 543 U.S. 405, 409-10, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005). The Court distinguished its holding from a recent case in which it had banned the use of thermal imaging devices to search inside a home, because such a search could reveal legal as well as illegal activity. It stated, “The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car.” Id. at 410, 125 S.Ct. at 838.
In my view, Caballes is an indication that the Supreme Court would approve of police officers asking questions regarding illegal contraband during the course of a traffic stop, even if they have no reasonable suspicion to support such a question. The use of a drug dog during a traffic stop has a much higher potential for citizen intimidation and public embarrassment than does merely asking a question. Moreover, unlike a dog sniff, a person who simply is asked whether there are any drugs in his or her possession has the option of not answering, or answering falsely, and terminating the investigation at that point. A dog sniff, on the other hand, ends only when the dog completes its sweep and either alerts or does not alert. Caballes, as well as the reasoning expressed in cases such as Childs and Shabazz, convinces me that the Fourth Amendment does not require police to have reasonable suspicion of illegal activity before they may ask a motorist detained during a legal traffic stop whether they are in possession of any drugs, so long as such questioning does not materially affect the length of the detention.
I do not believe Article 1, Section 11 of the Indiana Constitution requires a different result. An examination of the legality of police conduct under Article 1, Section 11 turns on a balancing of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the police conduct imposes on the citizen’s ordinary activities, and 3) the extent of law enforcement needs. Litchfield v. State, 824 N.E.2d 356, 361 (Ind.2005). Ultimately, “[t]he legality of a governmental search under the Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances.” Id. at 359.
There apparently was no suspicion here that Washington was in possession of drugs when Officer Hoffman asked him whether he was. However, the degree of intrusion caused by asking the question was minor, in comparison to the fact that Washington already was legitimately stopped for observed traffic violations when the question was asked. Although it was discussing the Fourth Amendment, I believe what the Seventh Circuit said in Childs also demonstrates the reasonableness of the police conduct here under the Indiana Constitution:
Questions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention. They do not signal or facilitate oppressive police tactics that may burden the public— for all suspects (even the guilty ones) may protect themselves fully by declining to answer. Nor do the questions forcibly invade any privacy interest or extract information without the suspects’ consent....
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... What happened here must occur thousands of times daily across the nation: Officers ask persons stopped for *285traffic offenses whether they are committing any other crimes. That is not an unreasonable law-enforcement strategy, either in a given case or in gross; persons who do not like the question can decline to answer. Unlike many other methods of enforcing the criminal law, this respects everyone’s privacy.
Childs, 277 F.3d at 954.
I believe it is reasonable under the Indiana Constitution for police officers to ask motorists already legitimately stopped for a traffic offense whether they are in possession of any illegal contraband, provided such questioning does not materially extend the length of the stop.6 In my view, Officer Hoffman’s question to Washington was permissible, legitimate policing inquiry, and constitutionally sound. I vote to reverse the granting of the motion to suppress.
. I also do not believe, unlike the majority, that this court’s earlier decision in Clark v. State, 804 N.E.2d 196 (Ind.Ct.App.2004), is relevant. Although the case does mention Article 1, Section 11, its result ultimately turned upon application of the seatbelt enforcement statute, Indiana Code Section 9-19-10-3 (now Section 9-19-10-3.1), and interpretation of that statute by our supreme court and the attorney general. See Clark, 804 N.E.2d at 200-01. Washington was not stopped for a seatbelt violation.