[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-11776 July 29, 2005
_____________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00142-CR-F-N
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JOANNA HERNANDEZ,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(July 29, 2005)
Before EDMONDSON, Chief Judge, DUBINA and HULL Circuit Judges.
EDMONDSON, Chief Judge:
In this criminal case, the government appeals the district court’s order
granting Defendant’s motion to dismiss and motion to suppress evidence seized
from her pick-up truck during a traffic stop. The government argues that the
police officer -- very soon after the stop began -- had reasonable suspicion that the
passengers were engaged in other criminal activity justifying the detention that led
to the pertinent search. We conclude that the search and seizure did not violate
Defendant’s Fourth Amendment rights.
Background
Alabama State Trooper Jessie Peoples observed a pick-up truck traveling 78
miles-per-hour in a 70 mile-per-hour zone. At approximately 3:02 a.m.1 on a
Monday, Trooper Peoples pulled the truck over. The Trooper approached the
passenger side of the truck and requested the driver to exit. A female passenger,
Defendant, sat in the front seat. The Trooper noticed several food containers in
the rear floor area.
The driver provided the Trooper with a Texas driver’s license. As an
excuse for speeding, the driver stated that Defendant had diarrhea and needed to
go to the bathroom. The Trooper pointed out that the lighted previous exit had
bathrooms. The Trooper asked the driver about where he was headed and the
purpose and length of the trip. The driver responded that he was driving to
1
The time is inferred from a videotape of the traffic stop that was recorded from the patrol car.
2
Atlanta to see Defendant’s relative for the weekend but quickly changed his
response to the whole week.
At 3:03 a.m., the Trooper escorted the driver to the front passenger seat of
the patrol car. As the Trooper began writing the citation, the Trooper asked the
driver about the weather in Houston upon his departure, whether he owned the
truck, whether this visit was his first time to Atlanta, whether the trip had been
planned or was spontaneous, his employment, and the name of the passenger. The
driver responded that a severe storm was in Houston when they left. He stated that
Defendant owned the truck and that it was his, but not her, first time to Atlanta.
Just before 3:06 a.m., the Trooper returned to the pick-up truck to talk with
Defendant. He asked whether she owned the truck and requested the registration
and some identification. He asked her what kind of work she did. To verify the
driver’s story, the Trooper then asked Defendant how long she planned to be in
Atlanta. She said that she was visiting a sick aunt and would stay probably until
Wednesday, depending on her aunt’s condition. The Trooper asked where
Defendant’s aunt resided in Atlanta. Defendant had difficulty answering where
the aunt lived, noting that she thought it started with a “G” or “Gaines.” In
response to the Trooper’s question about whether it was “Gwinnett,” she stated
“yes.” The Trooper questioned Defendant about whether the two small bags that
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he viewed in the back seat of the truck were the only luggage that they had
brought for the trip. She responded affirmatively.
Around 3:08 a.m., the Trooper returned to the patrol car and again asked the
driver about the purpose of the trip and whether they were driving all night. The
driver responded that they -- on their trip from Houston to Atlanta -- had been
traveling non-stop. After the driver made no mention of Defendant’s sick aunt,
the Trooper further questioned whether they were visiting a sick relative; the
driver responded “no.”
With the driver still in the patrol car, just before 3:09 a.m., the Trooper
contacted United States Customs to check the license validation, the vehicle
registration, whether warrants existed for the driver or Defendant, and whether the
vehicle had crossed national borders. The Trooper testified that he contacts
Customs in over two-thirds of his stops and that, as a general practice, he does not
conclude a traffic stop until receiving a response from the agency. Around 3:12
a.m., the Trooper informed the driver that the Trooper would be issuing a warning.
The warning was close to, if not fully, written at this time. But the Trooper
testified that he did not consider the traffic stop to have ended because he had not
heard back from Customs; he did not deliver the written warning to the driver at
this time.
4
The Trooper then walked to the truck to return Defendant’s license and
registration. The Trooper observed that Defendant seemed unusually nervous.
The Trooper testified that he, after his conversations with the driver and
Defendant, decided to call Chris Brown, a State Trooper who works with a
narcotics canine.2 Trooper Peoples testified that based on the following
observations, he decided to ask for consent to search the vehicle: (1) the driver’s
excuse for the speeding -- that Defendant suffered diarrhea -- despite the
availability of restroom facilities at the previous exit; (2) empty food containers in
the vehicle; (3) discrepancies in the driver’s and Defendant’s stories about the
trip’s length and purpose; (4) a level of nervousness exhibited in both the driver
and Defendant that -- in the Trooper’s experience -- was higher than that of the
normal motoring public; (5) the decision to begin travel during severe weather in
Houston and to continue at night without stopping; (6) Defendant’s lack of
knowledge about the trip’s destination; (7) travel between two main source cities
for narcotics; and (8) minimal luggage carried for a supposed week-long trip.
Trooper Peoples then returned to the police car and asked the driver whether
they were transporting anything illegal. The driver responded negatively. The
2
Trooper Peoples called Trooper Brown just before obtaining consent to search the truck.
Trooper Brown arrived on the scene shortly thereafter.
5
Trooper asked the driver for consent to search the truck. The driver agreed and
signed a consent form. At 3:18 a.m., the Trooper asked Defendant for permission
to search; she also signed the consent form.
Around 3:19 a.m., Trooper Peoples began a search of the truck that lasted
approximately twenty minutes. Around 3:28 a.m., Trooper Brown positioned his
dog on the passenger side of the truck; the dog gave a positive response to the
presence of narcotics. Trooper Peoples then located vacuum-sealed packages
behind a concealed trap door; the packages, upon testing, were determined to hold
cocaine. By the time that the driver and Defendant were arrested for the cocaine
(around 3:38 a.m.), the Trooper still had not heard back from Customs. During the
course of the search, the Troopers offered to take Defendant to the exit with the
restroom facilities; she declined the offer.
Defendant filed a motion to dismiss and a motion to suppress the evidence.
The district court granted the motions. The Government now appeals.
6
Discussion
I. District Court Decision
The district court concluded that the Trooper’s interrogation of Defendant
and the driver went beyond what that court understood to be the strict limits of
questions allowed at a traffic stop. The judge then concluded that, either because
such questions were asked at all or because asking the questions prolonged the
duration and enlarged the scope of Defendant’s detention, the traffic stop was
unconstitutional before Defendant consented to the search. To be more specific,
the district court seemed to think that, because the Trooper -- before he began to
write the citation or to call for a computer check -- asked the driver and Defendant
questions that the district court saw as unrelated to either officer safety, the
speeding offense, or processing the citation, the seizure must be unconstitutional.3
3
The district court tried to sort out some of our, and other circuits’, earlier decisions on traffic
stops. After the district court issued its opinion, the Supreme Court concluded that it is unreasonable
extensions of the duration -- not the scope of conversation -- that could render an otherwise justified
detention unreasonable for Fourth Amendment purposes. “[M]ere police questioning does not
constitute a seizure,” -- even if such questioning is about a topic unrelated to the initial purpose of
the search or seizure -- so long as it does not “prolong[] . . . the time reasonably required to complete
that [initial] mission.” Muehler v. Mena, 125 S.Ct. 1465, 1471 (2005) (internal quotations and
citations omitted) (holding that no independent reasonable suspicion was required for officers to
question person about immigration status while being detained during search for weapons and
evidence of gang membership). Although the seizure in Muehler was conducted pursuant to a search
warrant, we believe that the focus on duration (and not scope of questioning) is just as applicable to
7
Stressing the resultant delay, the district court also observed that the
questions “necessarily prolonged” the detainment and stated that “this is true even
though the total time between the beginning of the stop and the consent to search
does not run afoul of the cases setting an outside limit for the total length of a
detention for a traffic stop.” Memorandum Opinion and Order, United States v.
Hernandez, CR No. 03-142-N (M.D. Ala. March 22, 2004), at 28. The district
court reasoned that, because the seizure -- seemingly from when the first question
was asked that was not strictly necessary for the traffic offense -- already “violated
the parameters set out in Terry,” all of the evidence obtained from the encounter
(including the search) had to be suppressed as “fruit of the poisonous tree.” Id. at
24, 28-29.
We disagree. We conclude that objective reasonable suspicion existed that
Defendant was engaged in other criminal activity and that reasonable suspicion
justified the detention up to the point Defendant consented to the search.
a lawful traffic stop.
Therefore, arguments that the Trooper asked questions unrelated to either officer safety, the
speeding offense, or processing the citation are not determinative of our evaluation of the
constitutionality of the seizure here. We are to look only at the duration of the seizure given all the
circumstances: was it for an unreasonable time? And, of course, a traffic stop will inherently take
some time. When an officer is, for instance, looking at a driver’s license or waiting for a computer
check of registration, he lawfully can at about the same time also ask questions -- even questions not
strictly related to the traffic stop.
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II. Analysis
We stress that no one contends that this stop was an unlawful stop at its
inception: Defendant does not dispute that the Trooper observed the vehicle
violate the speed limit. We also observe that Defendant does not contest that she,
in fact, consented to the search.4 Once Defendant gave her consent, the clock re-
started for purposes of evaluating the reasonableness of the duration of the
intrusion. See United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999)
(stating that “further questioning unrelated to the initial stop is permissible if the
initial detention has become a consensual encounter”). No contention is made that
the search here lasted an unreasonably long time. Therefore, it is only the
intermediate period of seventeen minutes of detention leading up to the consent to
search that we must evaluate for constitutional reasonableness. See United States
v. Purcell, 236 F.3d 1274, 1279 (11th Cir. 2001) (considering only portion of stop
4
Although Defendant argues that the consent was tainted by the illegal detention, she makes no
argument that the consent -- in and of itself -- was illegally obtained (for example, that it was coerced
or fraudulently obtained). Because we conclude that Defendant was legally detained when she
consented to the search, we cannot agree that the consent was invalid as fruit of the poisonous tree.
Cf. Florida v. Royer, 103 S.Ct. 1319, 1329 (1983) (“Because we affirm the . . . conclusion that
[defendant] was being illegally detained when he consented to the search of his luggage, we agree
that the consent was tainted by the illegality and was ineffective to justify the search.”)
We also reject Defendant’s argument that because the Trooper, since the date of the pertinent
stop, has testified that he intended to search the vehicle regardless of consent, we should analyze this
search as if there were no consent at all. An officer’s “subjective intentions” are not relevant for
Fourth Amendment analysis. See Whren v. United States, 116 S.Ct. 1769, 1774 (1996).
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before lawful consent to search as relevant to inquiry of whether duration was
unconstitutional). Because Defendant was lawfully detained when she consented,
her consent validated the search.
From the first minute of the stop, the driver and Defendant demonstrated
suspicious behavior that could warrant an objectively reasonable policeman to
believe that Defendant might be involved in other criminal activity. Defendant
was traveling at three o’clock in the morning, and the Trooper was able to observe
the food containers and small amount of luggage when he first approached the
pick-up truck. He testified that he considered the food containers suspicious
because people transporting contraband often drive long distances without
leaving their vehicles, because they fear leaving the contraband unattended. In
fact, the Trooper had received drug interdiction training which instructed that the
presence of food containers was a factor that may raise reasonable suspicion in a
traffic stop situation.
The Trooper doubtlessly had the right to inquire into why the vehicle was
speeding. Later at a hearing, in response to a question asking when he became
suspicious, the Trooper stated “[t]he one factor was the restroom issue.” The
implausibility that the truck was speeding because Defendant was suffering from
diarrhea -- after they had just passed a lighted exit with restroom facilities in rural
10
Alabama at 3 a.m. (where rest stops were few and far between) -- combined with
the Trooper’s observation of the food containers and minimal luggage, creates a
more suspicious set of circumstances than a mere demonstration of nervousness,
use of an out-of-state license, or habit of repeating questions before answering.
Cf. United States v. Perkins, 348 F.3d 965, 970 (11th Cir. 2003) (concluding
nervousness, repetition of questions, possession of out-of-state license, and
inconsistent statements regarding destination alone insufficient for reasonable
suspicion).
And unlike the defendant in United States v. Boyce, 351 F.3d 1102, 1109
(11th Cir. 2003), the driver here never provided an explanation for the implausible
speeding excuse upon further questioning. See id. (noting that officer’s suspicions
that driver would not travel such long distance for ex-girlfriend “virtually
evaporated and any justification . . . for further investigation [based on this
inconsistency] dissipated” once driver explained he was not sure of current status
of relationship (internal quotation marks omitted) (brackets in original)).
Therefore, right from the start, the Trooper had reason to suspect that he was not
dealing with just a speeding case and, thus, reason to detain Defendant longer than
perhaps a traffic stop, in itself, would allow.
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Once the Trooper developed this reasonable suspicion, he had a duty to
investigate more. United States v. Harris, 928 F.2d 1113, 1117 (11th Cir. 1991)
(“Where . . . the initial stop was legal, the [officer] had the duty to investigate
suspicious circumstances that then came to his attention.” (internal quotation
marks omitted) (brackets in original)). We note that as each answer to the
Trooper’s investigative questions failed to allay his concerns, the Trooper’s
reasonable suspicion was bolstered, thus justifying his continuing to detain
Defendant, his call for the dog,5 and his request to search the truck. By the time
the Trooper sought permission to search the truck, at least these circumstances
provided a reasonable officer with a “minimal, particularized basis,” Pruitt, 174
F.3d at 1221, for reasonable suspicion: (1) the implausible excuse for speeding;
(2) empty food containers in the vehicle; (3) discrepancies in stories about the
trip’s length and purpose; (4) abnormal nervousness in both detainees; (5) nonstop
travel at night in severe weather; (6) lack of knowledge on the trip’s destination;
(7) travel between two main source cities for narcotics; and (8) minimal luggage.6
5
We have concluded that a “canine sniff . . . is the kind of brief, minimally intrusive investigation
technique that may justify a Terry stop.” United States v. Hardy, 855 F.2d 753, 759 (11th Cir. 1988).
6
Again, several of these factors were highlighted in the Trooper’s drug interdiction training as
circumstances that might raise suspicion in a traffic stop. The Trooper testified that he was
instructed that travel at night during inclement weather, nonstop travel, the presence of food
containers, inconsistent answers on the trip’s length and purpose, confusion about destination and
length of stay, unusual nervousness, and travel between source cities, are all characteristic of drug
courier transport.
12
From the start and thereafter with additional revelations, the circumstances
-- taken together -- gave rise to a more worrisome set of circumstances than the
cases where we have concluded that no basis for reasonable suspicion existed. Cf.
Boyce, 351 F.3d at 1109 (concluding that driving rental car on known drug
corridor and planning to return car two days late was insufficient for reasonable
suspicion); United States v. Tapia, 912 F.2d 1367, 1371 (11th Cir. 1990)
(concluding that “being Mexican, having few pieces of luggage, being visibly
nervous or shaken during a confrontation with a state trooper, or traveling on the
interstate with Texas license plates” was insufficient for reasonable suspicion).
Even if the duration of the pre-consensual detention in this case did extend beyond
what might have been reasonable for just a routine traffic stop, the facts that came
to light from the beginning of the stop -- facts giving rise to reasonable suspicion
that an additional crime was being committed -- were more than sufficient to
justify this detention of no more than seventeen minutes.
Conclusion
For the foregoing reasons, we conclude that the detention and search were
constitutional. Therefore, the district court’s orders granting Defendant’s motion
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to dismiss and motion to suppress are REVERSED and the case is REMANDED
for further proceedings consistent with this opinion.7
7
We have decided this case on the basis of the argument made to us: that, apart from the
Trooper’s looking into the traffic violation itself, additional circumstances continued to arise and to
confront the Trooper that signaled another crime and justified prolonging the stop. But something
else seems worth pointing out. Where at its inception a traffic stop is a valid one for a violation of
the law, we doubt that a resultant seizure of no more than seventeen minutes can ever be
unconstitutional on account of its duration: the detention is too short. By the way, no appellate
decision has been called to our attention that has held such a short detention -- linked to a legitimate
traffic stop -- to be an unreasonable seizure under the Fourth Amendment on account of the stop’s
duration.
A traffic stop for speeding can doubtlessly last long enough for the police to ask questions
about the reasons for speeding and to conduct a variety of checks about licenses, registration,
insurance and so on. We underline that the police are not constitutionally required to move at top
speed or as fast as possible. See, e.g., United States v. Sharpe, 105 S.Ct. 1568, 1575 (1985) (“While
it is clear that the brevity of the invasion of the individual’s Fourth Amendment interests is an
important factor in determining whether the seizure is so minimally intrusive as to be justifiable on
reasonable suspicion, we have emphasized the need to consider the law enforcement purposes to be
served by the stop as well as the time reasonably needed to effectuate those purposes.” (internal
quotations and citation omitted)). For the police to be vigilant about crimes is, at least broadly
speaking, a good thing. And at a traffic stop, the police can occasionally pause for a moment to take
a breath, to think about what they have seen and heard, and to ask a question or so. The police are
authorized to detain traffic violators for a reasonable amount of time. No one has contended that
the detention here was done in an abusive manner. No evidence in the record shows that seventeen
minutes is significantly longer than the range of normal for a traffic stop for a moving violation.
Even if seventeen minutes is some minutes longer than the norm, we question whether the Fourth
Amendment’s prohibition of unreasonable seizures is concerned with such trifling amounts of time,
when the seizure was caused at the outset by an apparent violation of the law. Of trifles the law does
not concern itself: De minimis non curat lex. This ancient legal maxim seems especially pertinent
when it is the Constitution that we are being asked to apply.
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