United States v. Salvador Ramos, United States of America v. Servando Ramos

BEAM, Circuit Judge,

dissenting.

The court’s opinion is contrary to existing law in this circuit, or, if not, it heads us down a slippery path toward confusion. Thus, I dissent.

The court properly holds that Trooper Abernathy had probable cause to stop the Ramos pickup truck. The seatbelt of passenger Servando Ramos was not fastened in violation of Iowa Code § 321.445.2. “When an officer observes a traffic offense — however minor — he has probable cause to stop the driver of the vehicle.” United States v. Cummins, 920 F.2d 498, 500 (8th Cir.1990) (emphasis added), cert. denied, — U.S. -, 112 S.Ct. 428, 116 L.Ed.2d 448-49 (1991).

Immediately upon the lawful stop, the court would bifurcate the transaction into both a detention with probable cause and a “Terry -stop” based upon some required level of articulable suspicion. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). Indeed, the court says “[i]n the instant case, after stopping the defendants’ truck, Abernathy asked for and received Ser-vando’s [the passenger’s] driver’s license. Although this was all the information he needed to write the seatbelt warning ticket, Abernathy asked for Salvador’s [the driver’s] license, too.” Court’s opinion at 351. The court then opines that Salvador had committed no offense and his presence in the patrol car was unnecessary to the conducting of a computer inquiry or writing the seatbelt ticket. The court does not indicate whether a lawful computer inquiry would have involved the passenger, Servando; the driver, Salvador; the vehicle or all three.

After the lawful traffic. stop, Abernathy was entitled, at least, to order the driver and the passenger out of the vehicle, to check the identity and validity of the license of the driver (Salvador) and the identity of the passenger (Servando), to run a computer check on the vehicle to establish whether it was stolen or otherwise involved in violations of law and to ascertain whether there were outstanding arrest warrants on either of the Ramos brothers. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); United States v. Shabazz, 993 F.2d 431, 437 (5th Cir.1993); United States v. Kelley, 981 F.2d 1464, 1468-70 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2427, 124 L.Ed.2d 647 (1993); United States v. Walker, 933 F.2d 812, 816 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992); and United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988). Abernathy, as indicated, properly carried out these procedures within the framework of the lawful traffic stop. And, that is essentially all that occurred up until the driver, Salvador, gave Abernathy written permission to search the vehicle.

It took something less than forty minutes for the traffic stop computer checks to be completed. Salvador, the driver, remained in the patrol car with Abernathy during this period and was questioned about his destination and about his employment. This supplemental inquiry occurred during the lawful seizure occasioned by the traffic stop and was clearly proper under the circumstances. See Florida v. Bostick, 501 U.S. 429, ---, 111 S.Ct. 2382, 2386-87, 115 L.Ed.2d 389 (1991) (mere questioning of passengers on a bus does not constitute a seizure); Shabazz, 993 F.2d at 436 (questioning during traffic stop does not constitute a seizure). Abernathy was understandably concerned that the driver of the truck was unsure about his destination.

When the computer cheeks were completed, Abernathy immediately wrote a warning ticket and delivered it to the passenger, Ser-vando, who had remained in the truck. This ticket was issued at 7:40 A.M. Upon delivery, Abernathy also inquired of the passenger where he was going and asked whether he was carrying drugs or weapons. When Servando stated that he had no contraband, Abernathy immediately returned to the patrol car and asked Salvador about drugs and *354weapons. He also asked for and received permission from Salvador to search the truck. The written permission to search was also shown as 7:40 A.M. indicating, at least, that the permission was sought while the events of. the traffic stop were still in process or within a minute or so thereafter and thus required no additional delay. There was no “Terry -stop.” Although the search of the truck occasioned additional delay and intrusion into the Ramos’ privacy, the events following the permission to search were consensual. Accordingly, there was no illegal detention giving rise to the suppression of the evidence of drug commerce. The conclusion of the court to the contrary is error.

I dissent.