PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

DENNIS DAYTON HOLT,

Defendant-Appellee.

No. 99-7150

Appeal from United States District Court

for the Eastern District of Oklahoma

(D.C. No. 99-CR-77-B)

Richard A. Friedman, Appellate Section, Criminal Division, Department of Justice, of Washington D.C., (Bruce Green, United States Attorney, and D. Michael Littlefield, Assistant United States Attorney, with him on the brief) for the appellant.

Michael A. Abel, Assistant Federal Public Defender, (Stephen J. Knorr, Federal Public Defender, with him on the brief), of Tulsa, Oklahoma, for the appellee.

Before EBEL, McKAY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge

In this interlocutory appeal, the United States challenges the district court's orders granting defendant Dennis Holt's motions to suppress evidence obtained during a search of his vehicle incident to a traffic stop and a search of his residence shortly after the vehicle search. We exercise jurisdiction pursuant to 28 U.S.C. § 3731. Although we agree with the district court that Holt's Fourth Amendment rights were violated when he was questioned about the presence of weapons in his vehicle, we reverse with directions to the district court to conduct an evidentiary hearing to determine whether Holt's consent to search his vehicle was nevertheless voluntary.

I.

On the evening of September 15, 1999, officers from the Muldrow, Oklahoma police department, accompanied by Damon Tucker, an Oklahoma Highway Patrol officer, established a checkpoint on Treat Road within the city limits of Muldrow. The impetus for establishing the checkpoint was the officers' suspicion that Holt, who lived in the area, was transporting illegal drugs along Treat Road.1

At the checkpoint, the officers stopped all vehicles traveling along Treat Road and checked drivers' licenses. At approximately 10:30 p.m., Tucker observed a Ford Ranger truck approach the checkpoint. Tucker noted that the driver of the truck, defendant Holt, was not wearing a seatbelt. After asking to see Holt's driver's license, Tucker asked Holt why he was not wearing a seatbelt. Holt stated that he lived in the area and pointed toward his house. At some point thereafter, officers from the Muldrow police department informed Tucker that Holt was the person they were seeking. Tucker asked Holt to pull over to the side of the road and join Tucker in his patrol car.

After Holt got into the patrol car, Tucker asked for Holt's driver's license and proceeded to write a warning for the seatbelt violation. While doing so, Tucker asked Holt if "there was anything in [Holt's] vehicle [Tucker] should know about such as loaded weapons." App. at 40. According to Tucker, he asks that question "on a lot of [his] stops." Id. Holt stated there was a loaded pistol behind the passenger seat of his vehicle. Holt did not indicate whether he had a permit to carry a loaded gun (which was required under Oklahoma law), and Tucker did not ask whether Holt possessed such a permit. Tucker asked Holt if "there was anything else that [Tucker] should know about in the vehicle." Id. at 42. Holt stated, "I know what you are referring to" but "I don't use them anymore." Id. Upon further questioning by Tucker, Holt indicated that he had previously used drugs, but "hadn't been involved with them in about a year or so." Id. at 43. Tucker then asked Holt for consent to search his vehicle. Holt agreed. It is unclear from the record whether Tucker issued the warning to Holt for the seatbelt violation at that point, or if Tucker ever returned Holt's driver's license to him. It is undisputed that Tucker had Holt's driver's license in his possession during the above-outlined questioning. According to Tucker, approximately three to four minutes elapsed between the time he and Holt got into the patrol car and the time that Holt consented to the search of his vehicle.

Tucker and Holt got out of the patrol car and Tucker again asked Holt if there was anything else in the vehicle. Holt responded that the gun was all that Tucker would find. Tucker proceeded to search the cab of the truck and, as described by Holt, found a loaded pistol behind the passenger seat. One of the Muldrow police officers, when informed by Tucker that Holt had given consent to have his vehicle searched, began looking through a camper shell on the back of the truck. During the course of his search, this officer found a small bag containing spoons, syringes, loose matches, and a white powdery substance in separate bags. Based upon the discovery of this evidence, Tucker arrested Holt and transported him to the Muldrow jail.

Shortly after Holt's arrest, Tucker contacted an assistant district attorney for Sequoyah County regarding the possibility of obtaining a search warrant for Holt's residence based upon the evidence recovered from Holt's vehicle. The assistant district attorney concluded the evidence was not sufficient to support a search warrant for Holt's residence. He did, however, advise Tucker to utilize "a knock and talk" technique. Id. at 48. In accordance with this advice, police officers went to Holt's residence and Holt's mother gave verbal consent to search the premises. During the search, officers found chemical glassware in a room where Hall stayed, as well as drugs and various drug-making equipment in an outbuilding.

Holt was indicted in federal court on October 14, 1999, on two counts of possession of methamphetamine with the intent to distribute in violation of 21 U.S.C. § 841(a), one count of manufacturing methamphetamine in violation of 21 U.S.C. § 841(a), and one count of possession of a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c). Holt moved to suppress the evidence seized from his vehicle. The district court held an evidentiary hearing on the motion and both Tucker and Holt testified. The district court subsequently issued a written order granting the motion to suppress. Shortly thereafter, Holt filed a supplemental motion to suppress the evidence seized from his residence. That motion was granted by the district court pursuant to the government's concession.

II.

In reviewing a district court order granting a motion to suppress, we accept the district court's factual findings unless clearly erroneous, and we view the evidence in the light most favorable to those findings. United States v. Little, 60 F.3d 708, 712 (10th Cir. 1995). We review de novo the ultimate determination of Fourth Amendment reasonableness. Id.

The Fourth Amendment protects individuals from unreasonable searches and seizures. See U.S. Const. amend. IV. "A traffic stop is a 'seizure' within the meaning of the Fourth Amendment, 'even though the purpose of the stop is limited and the resulting detention quite brief.'" United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998) (quoting Delaware v. Prouse, 440 U.S. 648, 653 (1979)). Because a routine traffic stop is more analogous to an investigative detention than a custodial arrest, such stops are analyzed under the standards announced for investigative detentions in Terry v. Ohio, 392 U.S. 1 (1968). See Hunnicutt, 135 F.3d at 1348. "To determine the reasonableness of an investigative detention, we make a dual inquiry, asking first 'whether the officer's action was justified at its inception,' and second 'whether it was reasonably related in scope to the circumstances which justified the interference in the first place.'" Id. (quoting Terry, 392 U.S. at 20). Here, there is no dispute that the traffic stop at issue was justified at its inception because Tucker observed Holt driving without a seatbelt. Thus, the parties focus their energies on whether Tucker's questioning of Holt regarding the presence of weapons in his vehicle was reasonably related in scope to the circumstances which justified the interference in the first place.2

The Supreme Court has indicated that although the permissible scope of an investigatory detention depends on "the particular facts and circumstances of each case," it must in any case "last no longer than is necessary to effectuate the purpose of the stop" and "be carefully tailored to its underlying justification." Florida v. Royer, 460 U.S. 491, 500 (1983). Thus, "[a]n officer conducting a routine traffic stop may run computer checks on the driver's license, the vehicle registration papers, and on whether the driver has any outstanding warrants or the vehicle has been reported stolen." United States v. Mendez, 118 F.3d 1426, 1429 (10th Cir. 1997). "However, once the computer checks confirm that the driver has produced a valid license and proof of entitlement to operate the car, the driver must be permitted to proceed on his way, without further delay by police for additional questioning." Id.

The government suggests that only the length of an investigatory detention is important for purposes of analysis under the Terry framework.3 Thus, the government argues, it was not unlawful for Tucker to question Holt about contraband in his vehicle because this questioning occurred while Tucker was in the process of writing the citation and did not extend the length of the detention. In support of its arguments, the government relies on United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993). In Shabazz, police officers stopped a vehicle for speeding. One officer asked the driver to get out of the vehicle and produce his driver's license. While the officer ran a computer check on the license, he asked the driver a series of questions about his recent whereabouts. During the same time period, a second officer posed similar questions to the driver's companion, who remained in the vehicle. After comparing notes and determining they had been given conflicting stories, the officers sought and received consent to search the vehicle. Drugs were found inside the vehicle and both the driver and the occupant were charged and convicted on drug-related counts. On appeal, they argued that the officers exceeded the reasonable scope of the stop's original purpose when they questioned them about their recent whereabouts. In rejecting this argument, the court "reject[ed] 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." 993 F.2d at 436. Further, the court noted that the questioning at issue "occurred while the officers were waiting for the results of the computer check" and thus "did nothing to extend the duration of the initial, valid seizure." Id. at 437. In sum, the Fifth Circuit effectively held that questioning by an officer, even on matters unrelated to the purpose of the detention itself, does not cause a detention to become more intrusive unless the questioning extends the duration of the detention.4

We have serious reservations about the holding in Shabazz. In reaching its conclusion, the Fifth Circuit relied heavily on the Supreme Court's statement in Florida v. Bostick, 501 U.S. 429, 434 (1991), that "mere police questioning does not constitute a seizure." The problem with this statement is that it was made by the Court in the course of determining whether random questioning of bus passengers by police constituted a "seizure" for purposes of the Fourth Amendment (the Court ultimately determined such encounters are consensual and are not "seizures"). Thus, the Court did not address the issue faced in Shabazz and this case, i.e., whether, in the context of a nonconsensual police-citizen encounter, police questioning on matters unrelated to the purposes of the initial stop can be so intrusive as to violate the Fourth Amendment.5 Although the Court has not directly addressed the issue we now face, it has, in applying the Terry analysis, routinely employed language suggesting there are limitations on both the length and the manner of the detention. For example, in Royer, the Court emphasized that "the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." 460 U.S. at 500 (emphasis added). In the same opinion, the Court further emphasized it was the government's burden to demonstrate that an investigative detention "was sufficiently limited in scope and duration." Id. (emphasis added); see also United States v. Sharpe, 470 U.S. 675, 690 (1985) ("Even a stop that lasts no longer than necessary to complete the investigation for which the stop was made may amount to an illegal arrest if the stop is more than 'minimally intrusive.'") (Marshall, J., concurring); United States v. Hensley, 469 U.S. 221, 235 (1985) (emphasizing that both the "length and intrusiveness" of a stop are relevant for purposes of the Terry analysis).

Even if we were persuaded that Shabazz was correct, we are bound by Tenth Circuit precedent. In contrast to the Fifth Circuit, this court has held that an officer conducting a routine traffic stop may not ask the detainee questions unrelated to the purpose of the stop, even if the questioning does not extend the normal length of the stop, unless the officer has reasonable suspicion of illegal activity. See United States v. Jones, 44 F.3d 860, 872 (10th Cir. 1995) (holding that questions regarding transportation of contraband, even if they occur concurrently with an officer's performance of legitimate tasks during a routine traffic stop, are justified only if the officer has reasonable suspicion of illegal activity); United States v. Turner, 928 F.2d 956, 959 (10th Cir. 1991) (holding that "if the officer retains the driver's license, he or she must have reasonable and articulable suspicion to question the driver about drugs or weapons"); cf. United States v. Walker, 933 F.2d 812, 816 (10th Cir. 1991) (concluding an officer conducting a routine traffic stop exceeded the reasonable scope of the detention by asking the driver if there were any weapons, alcohol, controlled substances or paraphernalia in the vehicle); United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988) ("Absent reasonable suspicion, an officer has no legitimate reason to check a car's odometer, and he certainly may not conduct what the district court described as 'intrusive questioning.'"), overruled on other grounds, United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995).

The dissent questions our reading of Tenth Circuit law. Citing three cases in which officers conducting routine traffic stops were permitted to ask detainees about their travel plans, the dissent argues this court has effectively approved of questioning "on topics wholly unrelated to the purpose of" a Terry stop. Dissenting Op. at 4. Although we acknowledge the cases cited by the dissent, we are not convinced they undercut our conclusion. To begin with, in none of these cases did the defendants directly challenge the questions about travel plans. Thus, none of the decisions explore or explain why it is constitutionally permissible for an officer to ask a detainee about his or her travel plans if the questioning is unrelated to the purpose of the stop. See United States v. Kopp, 45 F.3d 1450, 1454 (10th Cir. 1995) (acknowledging that officer asked detainee questions about his travel plans); United States v. McSwain, 29 F.3d 558, 561 (10th Cir. 1994) (quoting Rivera for the proposition "that an officer conducting a routine traffic stop may inquire about 'identity and travel plans'"); United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989) (holding, with no citation or analysis, that it was permissible for officer to "ask questions relating to the identity and travel plans" of the detainee). In any event, even assuming for purposes of argument that these cases allow an officer conducting a Terry stop to ask a detainee a limited number of questions unrelated to the purpose of the stop, we are not convinced they allow for questions, such as the one posed by Tucker to Holt, which would require the detainee to given an incriminatory answer or which would directly lead to a search of the detainee's vehicle. Indeed, the cases from this circuit that we have cited above clearly indicate that questions about weapons or contraband must be precipitated by reasonable suspicion.

In a fall-back argument, the government asks us to adopt a bright-line rule, based upon public policy concerns of promoting officer safety, that would allow an officer conducting a routine traffic stop to always ask the driver whether he is carrying weapons in his car. For the reasons that follow, we reject the government's contention that Tucker was either subjectively motivated by safety concerns or presented with circumstances that could have objectively given rise to particularized safety concerns,6 and we decline the invitation to announce any bright-line rule in this case.

The Supreme Court has emphasized that officers conducting a Terry stop may "take such steps as [are] reasonably necessary to protect their personal safety." Hensley, 469 U.S. at 235. For example, the Court has indicated it is proper for an officer to require the driver and occupants of a lawfully stopped car to get out of the vehicle. Maryland v. Wilson, 519 U.S. 408, 414 (1997) (concluding that "danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in a stopped car"); Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (noting that removal of the driver reduces the likelihood the officer will be the victim of an assault and reduces the risk posed to the officer from oncoming traffic). Likewise, the Court has held that when an officer conducting a Terry stop reasonably believes the detainee "is dangerous and . . . may gain immediate control of weapons," he may search "the passenger compartment of [the detainee's] automobile, limited to those areas in which a weapon may be placed or hidden." Michigan v. Long, 463 U.S. 1032, 1049 (1983).7

Although officer safety is a serious concern and can, under proper circumstances, justify various protective measures during a Terry stop, there is no evidence in this case suggesting that Tucker was motivated by safety concerns, nor is there sufficient evidence that would objectively give rise to a particularized safety concern. There was no testimony from Tucker that he believed Holt to be armed or otherwise dangerous. Although Tucker's limited knowledge that Holt was a drug trafficking suspect perhaps could have afforded him with a reasonable suspicion that Holt was armed or dangerous, see, e.g., United States v. Brown, 188 F.3d 860, 864-65 (7th Cir. 1999) (indicating that an officer who stopped a suspect for a traffic violation had a reasonable suspicion that the suspect might be armed and dangerous due, in part, to the officer's knowledge of FBI surveillance of the suspect's vehicle as a possible part of a large-scale drug operation), there was no evidence in this regard. Indeed, Tucker testified that he did not "remember feeling threatened" by Holt, App. at 44, and the district court found that Tucker and Holt were "surrounded by additional police officers." Id. at 91. Tucker's actions during the stop are consistent with the conclusion that he was not concerned for his safety. For example, Tucker did not attempt to conduct a pat-down search of Holt when he got out of his vehicle. Further, the evidence indicates Tucker placed Holt in the patrol car simply because that was his routine practice with male detainees (although that routine practice may have originated out of safety concerns, there was no evidence on that point). The nature of the question posed by Tucker (i.e., "if there was anything in the vehicle I should know about such as loaded weapons", App. at 40) bolsters the conclusion that he was not motivated by safety concerns. Finally, in seeking Holt's consent to search the vehicle, it is apparent that Tucker was not interested in locating the gun for safety purposes, but rather was interested in determining if Holt had violated Oklahoma state law. App. at 42 (Tucker testified he was interested in checking the gun to "make sure it [wa]s loaded or that there [wa]s a violation," thereby allowing him to "issue a citation or take the subject into custody.").

As for the government's proposed bright-line rule, we conclude this is not the case to announce such a rule. Aside from the fact that the Supreme Court generally disfavors bright-line rules in the Fourth Amendment context, see Ohio v. Robinette, 519 U.S. 33, 39 (1996), it would be illogical, in our view, to announce a safety-based bright-line rule in a case where there is no evidence or authority to support it. As we have explained in detail above, there is no evidence that Tucker's questioning was subjectively motivated by safety concerns (either generally or specifically as regards Holt). Further, the evidence presented by the government at the suppression hearing was insufficient to allow us to conclude that Tucker was faced with an objectively reasonable safety concern. Finally, the government has not presented any evidence, nor has it pointed to any authorities, indicating the types of risks generally faced by an officer after he or she places the driver of a stopped car in the passenger seat of the patrol car. See generally Wilson, 519 U.S. at 413 (citing statistics outlined in Federal Bureau of Investigation crime report regarding the number of officers assaulted and killed during traffic pursuits and stops); Mimms, 434 U.S. at 110 (citing study and case outlining the dangers faced by a police officer approaching a suspect seated in an automobile).

We are likewise unpersuaded by the various arguments forwarded by the dissent in favor of the government's proposed bright-line rule. The dissent cites two research reports it has independently uncovered and suggests we "can take judicial notice of the risks faced by officers when conducting traffic stops." Dissenting Op. at 9, n.5. Although we readily acknowledge the risks generally faced by officers conducting traffic stops, the statistics cited by the dissent tell us nothing about the dangers peculiar to this case, i.e., the likelihood of a detainee getting out of the patrol car, obtaining a concealed weapon from his car, and assaulting the detaining officer. Given the lack of relevant evidence, we are unwilling to make what would amount to little more than speculative findings of fact concerning the relevant potential dangers. Likewise, we think it unwise to take the bold step of adopting the proposed bright-line rule when it is unclear from the record whether the rule would afford much, if any, protection to an officer.

The cases cited by the dissent in support of the proposed bright-line rule are, in our view, inapposite. The majority of the cited cases involve limited and understandable extensions of Wilson and Mimms, and simply authorize an officer to take reasonable steps to physically control the driver and occupants during the course of a Terry stop. See Rogala v. District of Columbia, 161 F.3d 44, 53 (D.C. Cir. 1998) (extending Wilson and allowing officer to require passenger in stopped car to remain in vehicle during routine traffic stop); United States v. Barnes, No. 97-6290, 1998 WL 552427 at *3 (10th Cir. Aug. 28, 1998) (concluding, in light of Wilson, it was proper for officer to order detainee to stand by a fence along the highway during canine sniff following routine traffic stop); United States v. Moorefield, 111 F.3d 10, 12-13 (3d Cir. 1997) (extending Wilson to allow officer to order passenger to remain in vehicle with hands in the air); United States v. Stanfield, 109 F.3d 976, 981-83 (4th Cir. 1997) (extending Mimms and Wilson to allow officer approaching vehicle with heavily tinted windows to open at least one of the vehicle's doors and, without reaching inside vehicle, to visually inspect vehicle's interior); see also United States v. Little, No. 97-6200, 1999 WL 196515 at *1 (6th Cir. 1999) (noting, with no discussion or analysis, that officer asked driver to get out of her vehicle and stand between it and officer's vehicle to prevent officer from being exposed to passing traffic). The remaining cases do not involve the announcement of any bright-line rules, but rather involve specific and unique circumstances giving rise to reasonable safety concerns on the part of the officers conducting the stops. See United States v. Hardy, No. 98-4017, 1998 WL 704706 at *2 (10th Cir. Oct. 5, 1998) (concluding officer "was justifiably concerned for his safety because of Defendant's obvious distress and erratic behavior," and was thus justified in asking defendant if there were guns in a bag from which defendant began to remove items); Giannola v. Pepplar, No. 96-2467, 1998 WL 96557 at *3 (6th Cir. 1998) (concluding that officers acted reasonably when, after driver refused to pull his vehicle over and a brief chase ensued, officers approached driver's vehicle with their guns drawn); United States v. McRae, 81 F.3d 1528, 1531, 1535-36 (10th Cir. 1996) (holding that combination of suspicious circumstances, including fact that dispatcher advised officer to use "extreme caution" because detainee had been arrested for numerous drug trafficking charges, justified officer asking detainee about his criminal record); United States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994) (concluding it was permissible under circumstances for officer to approach stopped vehicle with flashlight and ask the occupants to put their hands in the air).

Because it focuses exclusively on the reasons allegedly justifying adoption of the proposed bright-line rule, the dissent fails to consider the consequences the proposed bright-line rule would engender. To begin with, it is unclear what would happen if an officer received an affirmative response from a detainee in response to a question about weapons possession. Does an affirmative response from the detainee mean the officer is free to immediately seize the weapon from the detainee's vehicle? Or, instead, does the detainee's response afford the officer reasonable suspicion to search the entire passenger compartment of the detainee's vehicle? In any event, adoption of the proposed bright-line rule would presumably allow an officer conducting a Terry stop, upon approaching a detainee seated in his vehicle, to immediately ask about the presence of weapons in the detainee's vehicle. Under this scenario, an affirmative response from the detainee could conceivably result in a full-blown search of the passenger compartment of the detainee's vehicle, no matter how minor the traffic infraction that initially prompted the stop, and even if the officer had no reasonable safety concerns when he posed the question. In our view, this goes too far.

Although we share the dissent's concern for officer safety, we are reasonably certain that existing Supreme Court and circuit law is sufficient to protect that interest. If and when an officer is posed with circumstances that give rise to a reasonable safety concern, existing case law allows him to take necessary steps to protect himself (e.g., frisking the detainee, searching the passenger compartment of the detainee's vehicle). Unlike the proposed bright-line rule, these steps are not necessarily dependent upon the detainee's verbal response.

In sum, we conclude Tucker exceeded the reasonable scope of the detention by questioning Holt about the possession of contraband, including loaded weapons. Although the questioning occurred while Tucker was writing out the citation, it is essentially uncontroverted that the questioning was unrelated to the purpose of the stop (i.e., the seatbelt violation). Further, there has been no assertion, either in the district court or on appeal, that Tucker's questioning was prompted by a reasonable suspicion of illegal activity on the part of Holt. Finally, there is no evidence in the record to support the notion that the questioning was motivated by safety concerns.

The remaining question is whether Holt's consent to search was nevertheless valid. "A search preceded by a Fourth Amendment violation remains valid if the consent to search was voluntary in fact under the totality of the circumstances." United States v. Fernandez, 18 F.3d 874, 881 (10th Cir. 1994); cf. United States v. Gregory, 79 F.3d 973, 979 (10th Cir. 1996) (noting that "voluntary consent may be given by a person who is detained"); United States v. Soto, 988 F.2d 1548, 1557-58 (10th Cir. 1993) (holding that a defendant's consent to a search of his vehicle was voluntary even though the police officer was in possession of the defendant's license and registration at the time the officer requested consent to search). "The government bears the burden of proving the voluntariness of consent, and that burden is heavier when consent is given after an illegal [detention]." Fernandez, 18 F.3d at 881. "If the consent is not sufficiently an act of free will to purge the primary taint of the illegal detention, . . . it must be suppressed as 'fruit of the poisonous tree.'" Walker, 933 F.2d at 817 (quoting United States v. Maez, 872 F.2d 1444, 1453 (10th Cir. 1989)). Three factors are relevant to the determination of whether a detainee's consent was an act of free will: "the temporal proximity of the illegal detention and the consent, any intervening circumstances, and, particularly, the purpose and flagrancy of the officer's unlawful conduct." Id. at 818 (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). Because the district court did not address this issue, we conclude it is necessary to remand the case to the district court for findings on the issue of the voluntariness of Holt's consent.8 See Walker, 933 F.2d at 818; Guzman, 864 F.2d at 1520-21.

III.

We REVERSE and REMAND for further proceedings in the district court regarding the voluntariness of Holt's consent to search his vehicle.

United States v. Holt, Case No. 99-7150

EBEL, Circuit Judge, dissenting

Although I agree with much of the majority opinion, I must depart from its reasoning with regard to whether an officer may routinely ask questions about weapons during a traffic stop. I agree with the majority that this circuit analyzes all traffic stops according to the principles set forth in Terry v. Ohio, whether the stop is based on reasonable suspicion or probable cause. I further agree that questioning the driver as to whether he was carrying a weapon in the car cannot be justified on the basis of reasonable suspicion in this case. My disagreement with the majority begins with its rejection of a rule allowing routine safety related questions about weapons by an officer during a traffic stop.

I believe officers may routinely ask a detainee during a traffic stop questions that directly pertain to officer safety, provided the questions do not extend the duration or alter the fundamental character of the stop. I recognize there is a point at which questions can become so intrusive that they begin to resemble a full-blown interrogation. At that point, the questions could no longer be justified by non-particularized concerns for officer safety. Cf. United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988) (finding that "intrusive questioning" by an officer during a traffic stop that "any of us would find offensive if it were undertaken by even a best friend, much less a police officer on the highway" violated the Fourth Amendment), overruled on other grounds by, United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995). However, in today's world where violence and guns are so pervasive and where officers risk their lives each time they approach a stopped motorist,1 I do not believe a simple question regarding the possession of a weapon that does not extend the duration of the stop is so intrusive or offensive as to violate the Fourth Amendment.2

The majority opinion first states that an officer may not ask the detainee any questions unrelated to the purpose of the stop, even if the questioning does not extend the normal length of the stop, unless the officer has reasonable suspicion of illegal activity. This assertion misrepresents the law in this circuit. We have held numerous times that officers are allowed during a traffic stop to question a driver about his travel plans. See e.g., United States v. Kopp, 45 F.3d 1450, 1454 (10th Cir. 1995) (implicitly allowing questions about travel plans after stopping car for speeding); United States v. McSwain, 29 F.3d 558, 561 (10th Cir. 1994) (officer may inquire into identity and travel plans during a routine traffic stop); United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989) (holding that an officer can "legitimately ask questions relating to the identity and travel plans of [the occupants of the car] . . . regardless of [the officer's] underlying motivation"). When a car is stopped for speeding or for a straightforward traffic violation, as opposed to being stopped on suspicion that the driver is falling asleep or driving erratically (in which case the officer would be legitimately concerned with how much further the driver intended to travel), it is difficult to explain how questions concerning the travel plans of the occupants are reasonably related to the circumstances which justified the stop. We have allowed, however, an officer to ask these questions regardless of the underlying traffic violation that justified the initial stop.

If we allow officers to question a motorist on topics wholly unrelated to the purpose of the stop, a fortiori we should allow officers to ask motorists questions predicated upon general concerns for officer safety. The principle that an officer can take steps to protect himself during a traffic stop, even when the steps taken are unrelated to the potential crime being investigated, is well-established. The Supreme Court has consistently recognized the "legitimate and weighty" state interest in officer safety, finding it unreasonable to require police officers to take "unnecessary risks in the performance of their duties." Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977). In recognition of this paramount interest in officer safety and the "inordinate risk confronting an officer as he approaches a person seated in an automobile," the Supreme Court has consistently approved protective measures during routine and other lawful investigatory detentions. Id. (establishing rule that officers can require drivers to exit vehicles during a routine traffic stop because of legitimate concern for officer safety without requiring a particularized basis for concern for officer safety); see also Maryland v. Wilson, 519 U.S. 408 (1997) (permitting police officer making traffic stop to order passengers out of car out of concern for officer safety without requiring a particularized showing of a safety concern).

The circuit courts have further expanded the realm of acceptable police measures that can be taken during a traffic stop in the name of officer safety. This circuit has often allowed officers to make expanded inquiries of motorists during a routine traffic stop in the interest of officer safety. See United States Barnes, No. 97-6290, 1998 WL 552427, at *3 (10th Cir. Aug. 28, 1998) (appropriate to order motorist to stand by fence during canine sniff following routine traffic stop) (unpublished); United States v. Hardy, 98-4017, 1998 WL 704706, at * (10th Cir. 1998) (officer could ask motorist if there were guns in a bag from which a motorist began to remove items during a routine traffic stop) (unpublished); United States v. McRae, 81 F.3d 1528, 1535 n.6 (10th Cir. 1996) (allowing officer to ask motorist whether he had a prior criminal record in the interest of officer safety).

Our sister circuits have likewise allowed officers to take various protective measures when conducting a traffic stop, even in the absence of particularized danger to the officer. See e.g., United States v. Little, 97-6200, 1999 WL 196515, at **1 (6th Cir. Mar. 24 1999) (officer allowed to require driver to stand between officer and driver's car out of safety concerns); Giannola v. Pepplar, 96-
2467, 1998 WL 96557, at *3 (6th Cir. 1998) (allowing officer to approach vehicle with guns raised in light of "danger police officers frequently encounter during routine traffic stops" and from motorist's initial reluctance to pull over); Rogala v. District of Columbia, 161 F.3d 44, 53 (D.C. Cir. 1998) (officer can require passenger to remain in vehicle); United States v. Moorefield, 111 F.3d 10, 13 (3d Cir. 1997) (officer can routinely require passengers to stay in car with hands raised during a traffic stop to promote officer safety); United States v. Stanfield, 109 F.3d 976, 981-83 (4th Cir. 1997) (in the interest of officer safety, and recognizing the inherent dangers during traffic stops, officer can routinely open vehicle door and visually determine whether occupants are armed during a routine traffic stop when car has darkly tinted windows); United States v. Packer, 15 F.3d 654, (7th Cir. 1994) (approving officer's procedure requiring motorist to raise hands and shining light through vehicle).3

The majority concedes that steps can be taken by an officer during a Terry stop to protect his own safety, but suggests that such steps must be predicated on a particularized fear of officer safety under the circumstances. Again, this suggestion is not supported by the case law. The Supreme Court in Pennsylvania v. Mimms and Maryland v. Wilson adopted a rule that officers may, as a matter of course, require drivers and passengers to exit the vehicle during routine traffic stops to ensure the safety of the officers, whether or not there is a particularized basis to be concerned about officer safety. Mimms, 434 U.S. at 110-12 (driver); Wilson, 519 U.S. at 413-14 (passenger). This circuit likewise has allowed officers, as a matter of course, to ask motorists about their prior criminal record and to run criminal checks during a traffic stop "largely to protect the officer." See McRae, 81 F.3d at 1535 n.6 ("Considering the tragedy of the many officers who are shot during routine traffic stops each year, the almost simultaneous computer check of a person's criminal record, along with his or her license and registration, is reasonable and hardly intrusive."). The Fourth Circuit has established a rule that an officer, when required to approach a vehicle with heavily tinted windows, may routinely open a door to visually look for weapons.

See Stanfield, 109 F.3d at 981; see also Barnes, 1998 WL 552427, at *3(out of concern for officer safety, officer can require motorist to stand by fence during canine sniff); Moorefield, 111 F.3d at 11-13 (officers can require passengers to keep hands in air as a routine practice during traffic stops); Packer, 15 F.3d at (same). Thus, courts have already approved a wide variety of protective measures to be conducted as a matter of course during traffic stops, whether or not there are particularized concerns for officer safety and whether or not the officer subjectively feared for his safety.4

In holding such measures to be reasonable under the Fourth Amendment, the courts have held that the minimal intrusion into the driver's personal liberty is outweighed by the state's justification–the safety of the officer. See e.g., Mimms, 434 U.S. at 110-111. I believe that this case presents a situation where the minimal intrusion into the driver's personal liberty of asking whether the motorist is carrying a weapon is outweighed by the "weighty and legitimate" interest in officer safety.5 The Supreme Court noted in Maryland v. Wilson that in 1994 alone 5,762 officers were assaulted and eleven were killed during traffic pursuits and stops. Wilson, 519 U.S. at 885 (citing Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted 1994 at 71, 33 (1994)). This number has only increased in the intervening years. In 1998, a subsequent version of the Uniform Crime Reports relied upon by the Court in Wilson indicates that 6,242 officers were assaulted during traffic pursuits and stops and nine were killed. See Uniform Crime Reporting Program (1998) at 86, 32. Seventeen percent of these assaults were with dangerous weapons–i.e., knives, guns, etc. Id. at 79. A separate report indicates that nine out of ten homicides of law enforcement officers between 1992 and 1997 resulted from a shooting. See Cindy Clarke & Mark J. Zak, Compensation and Working Conditions, Fatalities to Law Enforcement Officers and Firefighters, 1992-97, 3, 4 (1999). Thus, officers face a very real risk of being assaulted with a dangerous weapon every time they approach a stopped vehicle. Against this legitimate safety concern, we must weigh the intrusion into the driver's personal liberty of a simple question directed at protecting the officer. Given the numerous questions which are allowed already during a traffic stop, i.e., identity, travel plans, request for license and registration, the additional question concerning the possession of possible weapons is de minimis and not unreasonable in the context of the encounter. A traffic stop, after all, is not a social encounter. It is a forceful stop by an officer of a suspected law violator. The increasing violence in our society and the widespread prevalence of guns makes it only prudent and reasonable to allow an officer to inquire about the existence of guns during such an encounter.

One might be concerned about possible Fifth Amendment implications when asking a motorist a question about carrying a weapon. However, the Supreme Court has expressly held that questions asked during a traffic stop do not implicate Fifth Amendment concerns. In Berkemer v. McCarty, 468 U.S. 420 (1984), the Court held that roadside questioning of a motorist did not constitute custodial interrogation and thus officers need not provide a motorist with Miranda warnings prior to making any inquiries. Id. at 435-41.6

Because I would reverse the suppression of the evidence from Holt's car, I would also reverse the suppression of evidence obtained from the subsequent search of Holt's house. Although I think the search of Holt's house might be independently justifiable, the government apparently conceded that the search of the house stands or falls with the legality of the search of the car. The government is bound by that concession. However, since I believe there was no improper questioning or detention of Holt, I similarly believe the subsequent search of his home was constitutional.

In my opinion, the majority's conclusion that officer safety is not sufficient to allow officers to make a simple inquiry to the presence of guns during traffic stops is in error, so long as the traffic stop is not prolonged. Ultimately, in my opinion, this issue warrants en banc review by this court or certiorari review by the United States Supreme Court.