United States v. Isaac Eugene Barlow

JOHN R. GIBSON, Circuit Judge,

dissenting.

I dissent.

The court errs today in ignoring the objective standard set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that the information available to the officer at the moment of the seizure is the determining issue in our analysis. The record demonstrates that the facts available to Officer Hedberg were that the owner of the Tracker was white, whereas Barlow was African-American. Therefore, Barlow could not be the owner. The court remands for credibility assessment on an issue not relevant under Terry. I would reverse and instruct the district judge to set aside the conviction.

Police may not stop a car to check the driver’s license and registration without a reasonable, articulable suspicion that the driver is unlicensed, that the car is unregistered, or that the car or its occupants are otherwise subject to seizure for violation of the law. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). An officer who has such a reasonable, articulable suspicion may stop the car long enough to conduct an investigation that is “reasonably related in scope to the circumstances which justified the interference in the first place.” United States v. Jones, 269 F.3d 919, 924 (8th Cir.2001) (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Accord Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). However, the intrusion must last no longer than is necessary to effectuate the purpose of the stop, and the officer must use the least intrusive means available to dispel his suspicion quickly. Royer, 460 U.S. at 500, 103 S.Ct. 1319; Jones, 269 F.3d at 924. Once the suspicion that justified the stop has been shown to be baseless, the officer may not detain the car or its occupants unless something else has happened to generate another ground for detention. Jones, 269 F.3d at 925; United States v. Watts, 7 F.3d 122, 126 (8th Cir.1993) (“[A]n investigative stop must cease once reasonable suspicion or probable cause dissipates.”). Further detention after the original reason for the stop has been achieved (without consent or some intervening ground having arisen) violates the detainee’s right to be free from unreasonable seizure. Jones, 269 F.3d at 929; United States v. Belcher, 288 F.3d 1068, 1070 (8th Cir.2002); United States v. Beck, 140 F.3d 1129, 1134 (8th Cir.1998).

The validity of the seizure of the gun, and therefore the outcome of this appeal, hinges on the propriety of Hedberg’s actions in the short time between his seeing that the driver was a woman and receiving the answer that she did not have her driver’s license with her. Up until the time that Hedberg saw the driver was a woman, he could not tell who was driving the car and he had reasonable grounds to suspect that it might be a person who was wanted on a misdemeanor warrant. If Hedberg was justified in asking for the license, after the driver said she did not have her license, Hedberg would have been justified in detaining her long enough to find out whether she was in fact a licensed driver. Each subsequent step of the investigation was at least arguably justified by what came before. Therefore, the crucial question in this case is whether Hedberg was obliged to let the car go once he saw that the driver did not match the description of the person wanted for the misdemeanor.

*903I.

The government seeks to justify Hed-berg’s action in asking the driver for her driver’s license after he saw she could not be the owner of the Tracker by arguing that Hedberg could have thought one of the passengers was the owner. Hedberg never claimed that he thought one of the passengers might be the owner. At the suppression hearing he said only that he was investigating whether the driver might be the person wanted on the warrant:

I couldn’t tell at the time, you know, whether it was a male or female driver in the vehicle.... I was going to go back to the alley and ask the person that was driving whether they were the listed owner or not....

Later, he repeated this reason, and then added that he wanted to investigate why the passengers were back in the car if they had just been dropped off at home.5

Q: And why did you initiate the traffic stop at that time?
A: Well, number one, I didn’t know who was actually driving the vehicle. I knew it was a Caucasian. I thought maybe it was the person that had the listed warrant, that and the answer that I got from the two males, stating that they lived there. They weren’t in the alley very long.

On cross examination, Barlow’s attorney asked and Hedberg answered:

Q: And it was when that came back as a misdemeanor warrant for a Mr. Peterson that you then decided to go back and see whether he was driving the car?
A: I was going to go back and see whether Mr. Peterson was in the car.

The actual chain of events also demonstrates that Officer Hedberg was focused on the driver, not the passengers, since he first asked the driver for identification and only returned to question the passengers after the driver had told him she did not know one of her passengers.

I recognize that Officer Hedberg’s subjective intent is not determinative in deciding whether the stop was reasonable, Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), but in this case the evidence at the hearing followed the officer’s train of thought, which was that the driver, not the passengers, might be the subject of the warrant. Neither the prosecutor nor defense counsel explored whether Hedberg had reasonable grounds to believe one of the passengers might be the owner of the Tracker, and Hedberg never stated that he suspected the passengers, nor gave reasonable grounds for any such suspicion. As Barlow now points out, both passengers were black, and the owner of the Tracker was listed as white on the computer information that alerted Hedberg to the existence of the misdemeanor warrant. Deciding whether the government can justify the detention of the car and its occupants based on reasonable suspicion that one of the passengers was the owner requires us to determine whether the record evidence would support such a suspicion.

Because at the suppression hearing no one focused on whether Hedberg suspected one of the passengers of being the owner, Hedberg’s testimony is only obliquely relevant to whether he had facts in his possession that would have supported such a suspicion. At the hearing, *904the prosecutor asked and Hedberg answered:

Q: What information did you get from the listing on your computer?
A: It came back that the listed owner had a misdemeanor warrant. And it was listed to a male, and I couldn’t tell at the time, you know, whether it was a male or female driver in the vehicle. Q: Did the listing give you a race of the person who was the owner, do you know that?
A: No, not with the listing it doesn’t. It just gives you the eye color and the hair color.

Based on this testimony, the magistrate judge stated that the record was inadequate to support a conclusion that Hed-berg had grounds for reasonable suspicion that one of the passengers was the owner:

Officer Hedberg stopped the vehicle. As he approached, he noticed that the driver was a woman and could not be the subject of the misdemeanor warrant. (A registration typically reveals a brief description of the owner, however, during his testimony, Officer Hedberg was not asked about that description. The physical appearance of the owner remains unknown, so the evidence does not disclose whether a reasonable officer would have reached a conclusion as to whether the male passengers might have been the owner of the car and the subject of the warrant.)

The magistrate judge therefore did not base his recommendation on the theory that Hedberg had grounds to investigate the passengers, but instead relied on a general rule that an officer who has reasonable grounds to initiate a traffic stop may ask to see the driver’s license, relying on United States v. Allegree, 175 F.3d 648, 650 (8th Cir.1999).

However, at the plea hearing, Barlow’s counsel renewed the motion to suppress, now based on the theory that the warrant information showed that the owner of the Tracker was white and so the two black passengers could not be suspects. To preserve a record supporting this theory, Barlow’s counsel moved to introduce Exhibit 10, a printout of the information Hedberg received by computer that night. Barlow’s counsel had marked and used Exhibit 10 in her cross examination of Hedberg at the suppression hearing, but had not introduced it into evidence. At the plea hearing, counsel assured the court that the substance of Exhibit 10 had been before the magistrate judge at the suppression hearing by virtue of her cross examination. Based on this assurance and the government’s agreement to admission of the exhibit, the court allowed Exhibit 10 to be made part of the record, but denied the renewed motion to suppress.

Exhibit 10 was used at the suppression hearing to elicit Hedberg’s testimony that he knew that the owner of the Tracker was a male and that he recognized as he approached the car that the driver did not match the description of the owner. Contrary to Barlow’s counsel’s assertion to the district court that the substance of Exhibit 10 was before the magistrate judge, she now contends that the crucial part of Exhibit 10 is that it shows the owner of the Tracker was white.6 This was not brought *905out in testimony before the magistrate judge by counsel for either side. To the contrary, Hedberg testified on direct examination that the computer information did not show race, although he said it did show hair and eye color.

On this record, there are two reasons why the government has failed to establish that Hedberg had reasonable grounds to suspect the passengers were the owner of the Tracker. First, at the suppression hearing, the government failed to prove the facts to support the conclusion it wants us to draw. The magistrate judge observed that the government had not asked Hedberg about the registration description of the owner. The magistrate judge remarked, “[T]he evidence does not disclose whether a reasonable officer would have reached a conclusion as to whether the male passengers might have been the owner of the car and the subject of the warrant.” Accordingly, the magistrate recommended no finding of fact that Hedberg was unaware that the owner of the car was white and made no legal conclusion that Hedberg could reasonably have suspected one of the passengers was the owner of the car.

The record at the suppression hearing would have supported no such finding or conclusion. Hedberg testified at the hearing that the computer misdemeanor listing did not state the race of the owner, which in fact was incorrect. However, Hedberg never said that he did not know whether he was looking for a white person or a black person. No one asked him this question, because the hearing testimony only focused on the driver, who was white. As the magistrate judge surmised even without seeing Exhibit 10 (“A registration typically reveals a brief description of the owner....”), the computer database that Hedberg drew on could be expected to include some .kind of description of the person wanted for the misdemeanor. Hedberg said the computer misdemeanor entry showed hair and eye color, which might have ruled out a black suspect, although no one questioned Hedberg about this. Moreover, Hedberg did not behave as if he thought the passengers might be the owner of the Tracker; he did not ask them for their driver’s licenses. Instead, he focused solely upon the white driver of the car, leading her to the squad car while he left the passengers unattended in the Tracker. His focus on the driver supports the inference that he was looking for a white person. With these facts in the record suggesting that Hedberg likely knew he was looking for a white person, it became incumbent on the government to show he had reason to think one of the passengers was the warrant suspect. The government did not do this.

Second, the addition of Exhibit 10 to the record after the suppression hearing, which the government agreed to, shows conclusively that there was no reasonable ground to suspect one of the passengers was the warrant suspect. Regardless of what Hedberg would have said he knew about the warrant suspect’s race if anyone had asked him at the hearing, there is undisputed evidence that the computer report which listed the warrant also showed the warrant suspect was white. In determining whether a stop was reasonable, the *906court looks at the facts available to the officer carrying out the stop:

[I]n making [the reasonableness] assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief’ that the action taken was appropriate?

Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Accord Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); United States v. Owens, 101 F.3d 559, 561 (8th Cir.1996). The computer transmission that gave Hedberg the information that there was a misdemeanor warrant on the owner of the Tracker also listed the owner’s race as white.

Officer Hedberg agreed at the suppression hearing that Exhibit 10 was a printout of his calls that night, and he identified the time of the first call as twelve minutes and thirty-three seconds after midnight, which corresponds to the heading on Exhibit 10. Counsel directed his attention to Exhibit 10 and he said, “That looks like what would have come back on the computer.” He testified that based on the information about the outstanding warrant, he decided to see if the subject of the warrant was in the car.

The transmission that was before Officer Hedberg informing him that the owner had a misdemeanor warrant outstanding also contained entries showing the owner’s race was white and his eyes were blue.7 The race information was two lines away from, and in between, the entries showing the existence of the warrant.

The record leaves no doubt that Hed-berg had before him information showing the suspect was white. He knew the passengers were black. Therefore, the government has not established that Hedberg had reasonable grounds to suspect either of the passengers might be the person described in the warrant.

II.

The government argues that under United States v. Allegree, 175 F.3d 648, 650 (8th Cir.1999), an officer who has reasonable suspicion sufficient to justify a traffic stop may, as a matter of course, ask for identification from the driver and all passengers. I conclude that this case is unlike Allegree and that the detention past the point at which the officer’s suspicions were dispelled was unreasonable.

In Allegree, a police officer stopped a car because he thought it had blue headlights, which were only permitted on emergency vehicles under state law. The officer approached and told the driver why he had stopped him; the driver replied that the headlights were purple, not blue. The officer nevertheless asked to see identification for each of the occupants of the car and registration papers for the car. The stop eventually led to the discovery of methamphetamine in the car, and the driver and passenger moved to suppress the evidence, arguing that the detention continued beyond the proper scope of the stop. We held that the investigation was reasonably related to the purpose of the stop: “A reasonable investigation following a justifiable traffic stop may include asking for the driver’s license and registration, asking the driver to sit in the patrol car, and asking about the driver’s destination and purpose.” 175 F.3d at 650. Although this statement is eminently reasonable in the ordinary traffic violation situation, in which it will take some amount of contact with the detainees to address the reasons *907for the stop, see generally Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); United States v. Jones, 269 F.3d 919, 924-25 (8th Cir.2001), this case was not a traffic violation stop. The reasoning of the traffic violation cases does not apply to the situation in this case in which the officer saw as soon as he approached the car that the driver was not the person he suspected she might be. In Allegree the driver told the officer that the light was purple rather than blue, but the officer could reasonably believe it proper to check this out for himself, rather than just taking the driver’s word for it. This made appropriate the preliminary precautions that officers routinely carry out in traffic violation stops, such as asking for identification. See United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir.1994); United States v. Beck, 140 F.3d 1129, 1134 (8th Cir.1998). Here, on the other hand, the officer had no need for further investigation to dispel his original suspicions. This case is analogous to the situation in United States v. McSwain, 29 F.3d 558 (10th Cir.1994), in which a trooper stopped a car because he suspected the registration sticker had expired. Once the car was stopped, the trooper saw that the sticker had not expired. He nevertheless asked for identification. The Tenth Circuit held that the continued detention was unconstitutional because, before ever speaking to the driver, the trooper had completely resolved the question that prompted him to stop the car. 29 F.3d at 561. Similarly, in this case there was no viable reason to detain the car any longer, and Officer Hed-berg should have let the Tracker continue on its way.

Accordingly, I can find no reason justifying Officer Hedberg’s action in demanding the driver’s license. The discovery of the evidence flowed from an unreasonable detention, and I would reverse the district court’s denial of the motion to suppress evidence.

. The government does not contend that the passengers' presence back in the car after saying they lived at the house was a reasonable ground for stopping the car. Nor does the government contend that Hedberg had any reason to suspect the car was stolen; his computer report on the car indicated it had not been reported stolen.

. The paragraph of Exhibit 10 that first reveals the existence of a misdemeanor warrant is as follows:

From: CJIS To: 467 # 960445/04 07/28/1997 00:12:43 CDT
+ MH2 1 1730 4066 1 MPA MPA M 3 B 40 40 40 A. 4
1 2 67X MPA 4 JUL 28 1997 00:11:26 MN02711L1
IMMEDIATELY CONFIRM RECORD WITH ORI *905SCR/100.MIN/992083. RTY/ MISDMNR.KAP/Y. ORI/MN08200W1.
NAM/PETERSON, JOHNATHAN TAYLOR.DOB/090375.
SEX/M. RAC/W. HGT/510. WGT/200. EYE/BLU.HAI/XXX.
OFF/M4199.BND/500.
MIS/PUBLIC CONSUMPTION, UNDERAGE CONSUMPTION.
OCA/9602 8021. WNO/ 96028021JDOW/100996.
DRE/101596. DLU/101596. TMR/WCZ. PIK/MN.

(Emphasis added).

. The text of the computer transmission is set out at note 2, supra.