Bradley Leroy Thompson v. State

ACCEPTED

06-15-00002-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

6/4/2015 1:59:14 PM

DEBBIE AUTREY

CLERK

---ORAL ARGUMENT REQUESTED---

FILED IN

6th COURT OF APPEALS

IN THE COURT OF APPEALS TEXARKANA, TEXAS

6/4/2015 1:59:14 PM

SIXTH DISTRICT OF TEXAS DEBBIE AUTREY

Clerk

TEXARKANA, TEXAS

BRADLEY LEROY THOMPSON, §

Appellant §

§

vs. § NO. 06-15-00002-CR

§

THE STATE OF TEXAS, §

Appellee §

ON APPEAL FROM

THE 115TH JUDICIAL DISTRICT COURT

OF UPSHUR COUNTY, TEXAS

TRIAL COURT NO. 16,737

BARRY CLARK WALLACE

State Bar No. 00785170

Law Office of Barry Clark Wallace, P.C.

Attorney & Counselor at Law

P.O. Box 1408

206 E. Upshur

Gladewater, Texas 75647

Telephone: (903)845-2192

Facsimile: (903)845-2193

e-mail: bcwallace@suddenlinkmail.com

ATTORNEY FOR APPELLANT

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IDENTITY OF PARTIES AND COUNSEL

BRADLEY LEROY THOMPSON

TDCJ#1971513

DANIEL UNIT

938 SOUTH FM 1673

SNYDER, TEXAS 79549

APPELLANT

BARRY CLARK WALLACE

P.O. BOX 1408

GLADEWATER, TEXAS 75647-1408

APPELLANT’S COUNSEL AT TRIAL

BILLY BYRD

UPSHUR COUNTY CRIMINAL DISTRICT ATTORNEY

UPSHUR COUNTY JUSTICE CENTER

405 N. TITUS ST.

GILMER, TEXAS 75644

APPELLEE’S COUNSEL AT TRIAL

BARRY CLARK WALLACE

P.O. BOX 1408

GLADEWATER, TEXAS 75647-1408

APPELLANT’S COUNSEL ON APPEAL

NATALIE A. MILLER

UPSHUR COUNTY ASSISTANT CRIMINAL DISTRICT ATTORNEY

UPSHUR COUNTY JUSTICE CENTER

405 N. TITUS ST.

GILMER, TEXAS 75644

APPELLEE’S COUNSEL ON APPEAL

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TABLE OF CONTENTS

List of Parties and Counsel.................................................................... 2

Table of Contents................................................................................... 3

Index of Authorities............................................................................... 4

Statement of the Case............................................................................ 6

Point of Error Number One................................................................... 7, 14

The trial court erred in denying Appellant’s Motion to Suppress.

Statement of Facts................................................................................. 7

Summary of Argument.......................................................................... 13

Argument............................................................................................... 14

Conclusion and Prayer........................................................................... 22

Certificate of Compliance...................................................................... 23

Certificate of Service............................................................................. 23

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INDEX OF AUTHORITIES

CONSTITUTIONS:

Fourth Amendment, U.S. Constitution................................................... 7, 13, 16, 21

U.S. SUPREME COURT CASES:

Ohio v. Robinette, 519 U.S. 33 (1996)................................................... 16-17

Rodriguez v. United States, 135 S.Ct. 1609 (2015)............................... 21

STATE CASES:

Kothe v. State, 152 S.W.3d 54 (Tex.Crim.App. 2004).......................... 17-18

Thomas v. State, 420 S.W.3d 195 (Tex.App. Amarillo 2013)............... 18

Richardson v. State, 402 S.W.3d 272 (Tex.App. Fort Worth 2013)..... 18

Davis v. State, 947 S.W.2d 240 (Tex.Crim.App. 1997)........................ 18

Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005)......................... 18

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NO. 06-15-00002-CR

IN THE

COURT OF APPEALS

FOR THE

SIXTH JUDICIAL DISTRICT OF TEXAS

BRADLEY LEROY THOMPSON,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

TO THE HONORABLE JUSTICES OF SAID COURT:

NOW COMES BRADLEY LEROY THOMPSON, Appellant, by and through

his attorney, Barry Clark Wallace, hereinafter referred to as Appellant, who, in

conformity with the Texas Rules of Appellate Procedure, submits this brief in support

of reversing the judgment and sentence in Cause No. 06-15-00002-CR in the 115th

Judicial District Court of Upshur County, Texas (Trial Court No. 16,737).

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STATEMENT OF THE CASE

On May 9, 2014, the Grand Jury for Upshur County, Texas indicted Appellant

in a two paragraph indictment setting out an allegation of Possession of a Controlled

Substance Listed in Penalty Group One of the Texas Controlled Substances Act

(specifically, methamphetamine) with Intent to Deliver (in an amount of four grams

or more but less than 200 grams) in Paragraph A. Paragraph B alleged the same

offense without the allegation of intent to deliver. CR7.

Appellant filed his Motion to Suppress on October 3, 2014. CR 21. A hearing

was held on Appellant’s Motion to Suppress on October 14, 2014. 2RR. The trial

court denied the motion on October 21, 2014. CR36. On December 2, 2014,

Appellant entered into a plea bargain agreement with the Upshur County Criminal

District Attorney and was assessed punishment at thirty (30) years. CR 39. As a

condition of the plea bargain agreement, Appellant maintained his right to appeal

matters raised by written motion filed and ruled upon prior to his trial. CR41.

Accordingly, Appellant filed with the clerk of the trial court his Notice of Appeal

After Plea of Guilty, seeking herein to reverse the trial court’s denial of Appellant’s

Motion to Suppress, and a reversal of the conviction and sentence assessed. CR53.

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For clarity, THE STATE OF TEXAS will be referred to as “the State” and

BRADLEY LEROY THOMPSON will be referred to as “Defendant” or “Appellant”

hereinafter.

ISSUES PRESENTED

POINT OF ERROR NUMBER ONE

The trial court erred in denying Appellant’s Motion to Suppress.

STATEMENT OF THE FACTS

Appellant’s Motion to Suppress attacked the continued detention of Appellant,

who was a passenger in a motor vehicle, after the stated reason for the stop (by the

arresting officer) was concluded. CR23. The hearing on the motion included matters

raised in the same type of motion filed by Craig L. Bass, attorney for the driver of the

vehicle and co-defendant, DALE DEWAYNE FISHER, hereinafter referred to as

FISHER. 2RR2. Following an initial discussion pertaining to the burden of proof

that is somewhat confusing, the State proceeded presumably with the trial court ruling

the State had the burden of proof to show the warrantless search was reasonable and

not in violation of the Fourth Amendment to the United States Constitution. 2RR8.

The State’s sole witness at the hearing was the arresting officer, Upshur County

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Deputy Sheriff David Thompson. 2RR8. Deputy Thompson’s testimony established

that he performed duties as a patrol officer and as a K-9 drug interdiction officer with

his canine partner, Chiva. 2RR9, 10, 30.

Deputy Thompson executed a traffic stop on a motor vehicle traveling

northbound on U.S. Highway 259 on the night of December 30, 2013, for a defective

license plate light on the rear license plate of the vehicle. 2RR11. Deputy Thompson

testified that he made contact with the driver of the vehicle (FISHER) and requested

his driver’s license and proof of insurance after informing him of the reason for the

traffic stop. 2RR19. When FISHER could not produce his driver’s license on

request, Deputy Thompson permitted FISHER to exit the vehicle to look through his

clothing in the back of the vehicle for his driver’s license. 2RR20. While FISHER

was searching for his license, Deputy Thompson requested the passenger in the

vehicle to produce his driver’s license or identification card and he was able to

confirm the identity of the passenger as Appellant by his Texas Identification Card.

2RR21.

Ultimately, FISHER informed Deputy Thompson he could not locate his

driver’s license and he provided Thompson with his full name and date of birth so

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dispatch could determine whether FISHER had a valid driver’s license. 2RR22, 23.

With FISHER’s information and Appellant’s ID card, Deputy Thompson was able to

check with dispatch for the possibility of open warrants and for criminal histories for

both subjects, and further testified that this is a task that he normally performs in

traffic stops. 2RR23.

The report from dispatch confirmed that FISHER had a valid driver’s license

and proof of insurance as required by law. 2RR40. Deputy Thompson further

learned from the report from dispatch that neither Appellant nor FISHER had

outstanding warrants for their arrest. 2RR41. The report further confirmed that

Appellant and FISHER both had criminal histories involving narcotics. 2RR41. Up

to this point in the traffic stop, Deputy Thompson testified that neither Appellant nor

FISHER demonstrated any behavior that seemed out of the ordinary or of a suspicious

nature. 2RR24, 25. Also at this point in the traffic stop, Deputy Thompson testified

that he did not smell the odor of marijuana. 2RR29.

At this juncture, rather than citing or warning FISHER for the defective license

plate light that was the basis for the traffic stop, Deputy Thompson decided instead

to continue the detention which then, according to Thompson, was no longer a traffic

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stop but an investigative stop. 2RR41, 42.

Deputy Thompson had FISHER exit his vehicle and step to the back of the

vehicle so Deputy Thompson could continue with his investigation. 2RR26. Upon

resuming his contact with FISHER, Deputy Thompson testified how FISHER began

sweating increasingly, and how, for the first time, he became aware of the odor of

marijuana on FISHER’s clothing. 2RR26, 27, 28. Based on FISHER’s sweating and

the smell of marijuana on his clothing, and because FISHER had been arrested before

for possession of narcotics, Deputy Thompson requested of FISHER permission to

search the vehicle. 2RR29, 30, CR31. FISHER denied Deputy Thompson permission

to search the vehicle. 2RR30.

Deputy Thompson then advised FISHER that he was a K-9 officer and that he

was going to conduct a free air search on the vehicle with his K-9 partner, Chiva.

2RR30. Deputy Thompson then retrieved his K-9 partner and conducted an air search

of FISHER’s vehicle. 2RR30-33. Deputy Thompson testified that Chiva alerted on

the vehicle and he then allowed Chiva to enter the vehicle, and that Chiva again

alerted inside the vehicle. 2RR32, 33. Inside the center console area of the vehicle,

Deputy Thompson located methamphetamines, a pistol, pills, and currency which

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appeared to be counterfeit. 2RR33, 34. FISHER and Appellant were arrested.

Deputy Thompson testified he could have issued FISHER a warning or a citation for

the traffic infraction and concluded the stop without prolonging the detention, but he

instead chose to continue the detention based on FISHER’s and Appellant’s criminal

histories involving narcotics and Thompson’s understanding that the two were

traveling along a highway coming from Houston, a major hub for illegal narcotics.

2RR41, 44. Other reasons cited by Deputy Thompson in claiming reasonable

suspicion for criminal activity at the moment he was awaiting the return from

dispatch concerning FISHER’s and Appellant’s warrant status and criminal histories,

included his testimony that he believed FISHER was slow in pulling his vehicle over

after he had activated his emergency lights to make the traffic stop, and FISHER’s

inability to produce his driver’s license on demand. 2RR45. Deputy Thompson

admitted there was nothing to prevent him from conducting the free air search of

FISHER’s vehicle while awaiting the returns from dispatch if he believed there was

suspicious activity or criminal activity afoot. 2RR43. Despite having backup at the

scene, Deputy Thompson’s only explanation for his failure to conduct the free air

search while awaiting the return from dispatch was that he does not pull his partner

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out until he gets all his returns on every traffic stop. 2RR22, 43.

The Trial Court denied Appellant’s Motion to Suppress on October 21, 2014.

CR36. On December 2, 2014, Appellant entered into a plea bargain agreement with

the Upshur County Criminal District Attorney and was assessed punishment

following a plea of guilty at thirty (30) years. CR39. As a condition of the plea

bargain agreement, Appellant maintained his right to appeal matters raised by written

motion filed and ruled upon prior to his trial. CR41.

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SUMMARY OF THE ARGUMENT

The basis for the stop by Deputy Thompson was for a traffic violation. As part

of the traffic stop, Deputy Thompson sought to determine whether the driver of the

vehicle had a valid driver’s license and proof of insurance. He also obtained proof

of identification of the remaining occupant of the vehicle and ran both subjects

through dispatch to obtain any criminal histories of the subjects and to determine

whether there were any outstanding warrants for either subject. Deputy Thompson

learned from dispatch that the driver of the vehicle had a valid driver’s license and

proof of insurance, and that no warrants existed for either the driver or the occupant

of the vehicle. Rather than issuing a warning or a citation for the traffic violation and

concluding the stop, Deputy Thompson chose instead to prolong the detention to

conduct what was no longer a traffic stop but an investigative stop. The prolonged

detention and investigation and subsequent warrantless search by Deputy Thompson

were not reasonable and violated the Fourth Amendment to the U.S. Constitution and

applicable Texas law. The trial court should have granted Appellant’s Motion to

Suppress. It was error not to do so.

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POINT OF ERROR NUMBER ONE

The trial court erred in denying Appellant’s Motion to Suppress.

ARGUMENT

Deputy Thompson was more than a patrol officer with the Upshur County

Sheriff’s Department; he was the Department’s K-9 officer who traveled at all times

with his certified narcotics dog and partner, Chiva. Deputy Thompson acknowledged

his duties included searching for illegal narcotics being trafficked along the major

highways of Upshur County. The two traveled together and conducted drug

interdiction operations, including the use of Chiva in free air searches of vehicles

stopped by Deputy Thompson.

Appellant was a passenger in a vehicle stopped by Deputy Thompson for a

traffic violation. Once the reason for the traffic stop had been concluded, a warning

or a citation for the traffic violation should have been issued by Deputy Thompson

and the driver and Appellant released. The existence of reasonable, articulable

suspicion was required for Deputy Thompson to continue any detention of the driver

and Appellant once the traffic stop had been concluded.

In support of his decision to continue the detention of the driver beyond the

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conclusion of the traffic stop, Deputy Thompson focused on the driver’s failure to

stop immediately after he activated his emergency lights and on the driver’s inability

to produce his driver’s license on demand. Deputy Thompson further focused on the

information that the driver and Appellant were traveling from Houston (a major hub

for narcotics according to Thompson) along a highway known for narcotics

trafficking (also according to Thompson). Curiously, Deputy Thompson failed to

articulate in his offense report any of these suspicions as a basis for his decision to

continue the detention of the driver beyond the conclusion of the traffic stop.

What was known to Deputy Thompson once the return from dispatch was

received was this: the driver of the vehicle did, in fact, have a valid driver’s license;

the driver of the vehicle did, in fact, possess a valid insurance policy for the vehicle

as required by law; neither the driver nor Appellant had any outstanding warrants for

their arrest; and both subjects had criminal histories involving narcotics. Until this

moment, Deputy Thompson admitted that neither the driver nor Appellant had

exhibited any behavior that was out of the ordinary or suspicious in nature, and that

the driver had been calm. Despite having these facts at his disposal, Deputy

Thompson chose to prolong the detention. It seems apparent that the main focus of

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Deputy Thompson’s decision to prolong the detention was the report of the criminal

histories of the driver and Appellant; it seems incredulous to believe Thompson

would have otherwise prolonged the detention in the absence of any criminal history

for the subjects.

Deputy Thompson’s reliance on the driver’s sweating and the smell of

marijuana detected on the driver’s clothing as a basis for the prolonged detention are

misplaced. Neither of these observations would have occurred had Thompson not

prolonged the detention. Once he decided to prolong the detention and to proceed

with his investigation, Deputy Thompson requested permission from the driver to

search the vehicle. When asked by the driver why he wanted to search the vehicle,

Deputy Thompson’s response (which he provided as set down in his offense report)

was because he (the driver) had been arrested before for possession of narcotics in the

past. When his request to search was denied by the driver, Deputy Thompson,

undeterred, conducted a free air search of the vehicle with his K-9 partner, Chiva.

In trying to gauge whether Deputy Thompson’s decision to prolong the

detention beyond what was necessary to effect the original purpose of the stop was

reasonable under the Fourth Amendment, the reasonableness is to be measured in

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objective terms by examining the totality of the circumstances. Ohio v. Robinette,

519 US 33, 39 (1996). In applying this manner of measuring the reasonableness of

the detention, Justice Ginsberg stressed in Ohio v. Robinette the need to evaluate both

the reason for the initial detention as well as the scope of the detention to ensure that

police officers are not using traffic stops merely as a means to conduct “fishing

expeditions.” Ohio v. Robinette, 519 US 33, 41 (1996) (Ginsburg, J., concurring).

Under this authority and Kothe v. State, 152 S.W.3d 54 (Tex.Crim.App. 2004),

Deputy Thompson’s continued detention of the vehicle was not authorized. In Kothe,

the majority provided guidance on questions of “reasonableness” and the scope of a

detention. First, the stop should last no longer than is necessary to effect the purpose

of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App. 2004). Here, the

purpose of the stop was for a traffic infraction; specifically, a defective light on the

rear license plate. As part of making this traffic stop, police officers may request

certain information from a driver, such as a driver’s license and car registration, and

may conduct a computer check on that information. Id. Once the computer check is

completed, and the officer knows that the driver has a currently valid license, no

outstanding warrants, and the car is not stolen, that traffic stop investigation is fully

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resolved and the detention must end and the driver be permitted to leave. Id., at 63,

64. As previously stated in this brief, once the computer check was completed,

Deputy Thompson knew that the driver had a currently valid license and proof of

insurance required by law. He knew that neither the driver nor Appellant had any

outstanding warrants and there was no information suggesting the car was stolen. He

also admitted that neither the driver nor Appellant had exhibited any behavior that

was out of the ordinary or suspicious in nature, and that the driver had been calm.

Stops by the police should last no longer than the time required to conclude the

reason for the stop and should be as short in duration as possible. Thomas v. State,

420 S.W.3d 195 (Tex.App. Amarillo 2013); Richardson v. State, 402 S.W.3d 272

(Tex.App. Fort Worth 2013); and Davis v. State, 947 S.W.2d 240 (Tex.Crim.App.

1997). In addition to measuring the reasonableness of an officer’s decision to

prolong the detention, reasonable suspicion exists when, based on the totality of the

circumstances, the officer has specific, articulable facts that, when combined with

rational inferences from those facts, would lead him to reasonably conclude that a

particular person is, has been, or soon will be engaged in criminal activity. Ford v.

State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). When the reason for the stop was

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concluded and Deputy Thompson returned to the driver following the computer

check, the driver and Appellant should have been permitted to depart since the traffic

stop had been fully resolved. The real question presented to the trial court and

preserved for this court is this: did Deputy Thompson possess specific, articulable

facts that, when combined with rational inferences from those facts, lead him to

reasonably conclude that the driver or Appellant were presently, had been, or would

soon engage in criminal activity?

As stated more than once, Deputy Thompson knew following the computer

check that the driver had a valid driver’s license and proof of insurance. He knew

neither the driver nor Appellant had outstanding warrants for their arrest. He knew

their behavior, to that point in the detention, did not exhibit anything that was out of

the ordinary or suspicious in nature. The specific, articulable facts upon which

Deputy Thompson would have us draw rational inferences from in support of his

decision to reasonably conclude that the driver and Appellant were, had, or would

soon be engaging in criminal activity are: (1) both were traveling from Houston, a

major hub for drug trafficking according to Thompson; (2) both were traveling along

a major highway, a known drug trafficking corridor also according to Thompson; (3)

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the driver’s failure to immediately pull over when Thompson activated his emergency

lights; (4) the driver’s failure to produce his driver’s license on demand; and (5) the

criminal histories of both the driver and Appellant. Can it not also be a rational

inference to reasonably conclude that the driver and Appellant were traveling along

the major highway in question from Houston because that was the most direct path

for the destination of New Boston provided to Deputy Thompson by the driver, who

said he and Appellant were en route to this destination to help with the funeral plans

for his mother? CR30, 2RR39. Can there not also be criminal activity-neutral

(whether past, present or future) inferences that are rational for drivers operating

vehicles on our public roads who can not locate their driver’s licenses on demand

who nonetheless possess valid driver’s licenses? Or criminal-activity neutral

inferences that are rational for drivers who may not immediately pull over when law

enforcement officers think they should pull over after activating their overhead

emergency lights? Both vehicles were traveling presumably at highway speeds along

a major highway in opposite directions when Deputy Thompson activated his

emergency lights after observing the defective license plate light on the northbound

vehicle in which Appellant was the passenger. 2RR12, 12. There are criminal neutral

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inferences equally rational that may be made by looking at the facts objectively.

There was no cause consistent with the Fourth Amendment for Deputy Thompson to

choose to prolong the detention of the vehicle in which Appellant was the passenger

once the reason for the stop had been concluded. The Motion to Suppress should

have been granted. This error was properly preserved by Appellant in his plea

agreement at trial. The State would have no evidence of the crime alleged but for the

improper prolonged detention that led to the unauthorized search and subsequent

seizure because the evidence would be “fruit of the poisonous tree” and otherwise

inadmissible.

The applicability of a recent U.S. Supreme Court case strongly states that any

prolonged detentions, however slight, not based on specific facts which give rise to

reasonable suspicion of additional criminal activity separate from the traffic violation

that provided the original basis for the stop (and particularly those involving drug

sniffing dogs) violate the Fourth Amendment. Rodriguez v. United States, 135 S.Ct.

1609 (2015). Here the free air search conducted by Deputy Thompson could have

been performed while awaiting the report from dispatch. Deputy Thompson and his

K-9 partner, Chiva, were present. Deputy Thompson had a backup officer present for

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officer safety. If he did, in fact, possess concerns or suspicions that the driver and

Appellant at the time of the traffic stop had been, were presently, or likely to engage

in criminal activity, there is no reason why he could not have then conducted the free

air search and not otherwise have prolonged the detention beyond the scope of what

was a routine traffic stop.

CONCLUSION AND PRAYER

For the reasons recited herein, the judgment and sentence of the trial court

should be reversed and remanded for a new trial, by finding the trial court erred in

failing to grant Appellant’s Motion to Suppress.

Respectfully submitted,

/s/ Barry Clark Wallace

BARRY CLARK WALLACE

State Bar No. 00785170

Law Office of Barry Clark Wallace, P.C.

Attorney & Counselor at Law

P.O. Box 1408

206 E. Upshur

Gladewater, Texas 75647

Telephone: (903)845-2192

Facsimile: (903)845-2193

e-mail: bcwallace@suddenlinkmail.com

ATTORNEY FOR APPELLANT

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CERTIFICATE OF COMPLIANCE

I do hereby certify that the foregoing complies with the Texas Rules of

Appellate Procedure, Rule 9 regarding length of documents, in that exclusive of

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement of procedural history, signature, proof of service,

certification, certificate of compliance, and appendix, it consists of 3,097 words.

/s/ Barry Clark Wallace

BARRY CLARK WALLACE

State Bar No. 00785170

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the above and foregoing

Appellant’s Brief has been provided to Natalie A. Miller, Upshur County Assistant

Criminal District Attorney on this fourth day of June, 2015.

/s/ Barry Clark Wallace

BARRY CLARK WALLACE

State Bar No. 00785170

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Rodriguez v. United States

Supreme Court of the United States

January 21, 2015, Argued; April 21, 2015, Decided

No. 13-9972.

Reporter

191 L. Ed. 2d 492; 2015 U.S. LEXIS 2807; 135 S. Ct. 1609; 83 U.S.L.W. 4241; 25 Fla. L. Weekly Fed. S 191

DENNYS RODRIGUEZ, PETITIONER v. UNITED STATES

Notice: The LEXIS pagination of this document is subject to change pending release of the final

published version.

Prior History: [**1] ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

United States v. Rodriguez, 741 F.3d 905, 2014 U.S. App. LEXIS 1897 (8th Cir. Neb., 2014)

Disposition: Vacated and remanded.

Case Summary

Overview

HOLDINGS: [1]-A police stop exceeding the time needed to handle the matter for which the stop was

made violated the United States Constitution’s shield against unreasonable seizures; [2]-A seizure

justified only by a police-observed traffic violation became unlawful if it was prolonged beyond the

time reasonably required to complete the mission of issuing a ticket for the violation; [3]-Lacking the

same close connection to roadway safety as the ordinary inquiries, a dog sniff was not fairly

characterized as part of the officer’s traffic mission; [4]-The question whether reasonable suspicion of

criminal activity justified detaining defendant beyond completion of the traffic infraction investigation

was open for consideration on remand as the lower court had not reviewed the determination that the

detention for a dog sniff was not independently supported by individualized suspicion.

Outcome

Judgment vacated; case remanded. 6-3 decision, 3 dissents.

Syllabus

[*494] Officer Struble, a K-9 officer, stopped petitioner Rodriguez for driving on a highway shoulder,

a violation of Nebraska law. After Struble attended to everything relating to the stop, including, inter

alia, checking the driver’s licenses of Rodriguez and his passenger and issuing a warning for the traffic

offense, he asked Rodriguez for permission to walk his dog around the vehicle. When Rodriguez

refused, Struble detained him until a second officer arrived. Struble then retrieved his dog, who alerted

to the presence of drugs in the vehicle. The ensuing search revealed methamphetamine. Seven or eight

minutes elapsed from the time Struble issued the written warning until the dog alerted.

191 L. Ed. 2d 492, *495; 2015 U.S. LEXIS 2807, **2

Rodriguez was indicted on federal drug charges. He moved to suppress the evidence seized from the

vehicle on the ground, among others, that Struble had prolonged the traffic stop without reasonable

suspicion in order to conduct the dog sniff. The Magistrate Judge recommended denial of the motion.

He found no reasonable suspicion supporting detention once Struble issued the written warning. Under

Eighth [**2] Circuit precedent, however, he concluded that prolonging the stop by “seven to eight

minutes” for [*495] the dog sniff was only a de minimis intrusion on Rodriguez’s Fourth Amendment

rights and was for that reason permissible. The District Court then denied the motion to suppress.

Rodriguez entered a conditional guilty plea and was sentenced to five years in prison. The Eighth

Circuit affirmed. Noting that the seven or eight minute delay was an acceptable “de minimis intrusion

on Rodriguez’s personal liberty,” the court declined to reach the question whether Struble had

reasonable suspicion to continue Rodriguez’s detention after issuing the written warning.

Held:

1. Absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates

the Constitution’s shield against unreasonable seizures.

A routine traffic stop is more like a brief stop under Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L.

Ed. 2d 889, than an arrest, see, e.g., Arizona v. Johnson, 555 U. S. 323, 330, 129 S. Ct. 781, 172 L.

Ed. 2d 694. Its tolerable duration is determined by the seizure’s “mission,” which is to address the

traffic violation that warranted the stop, Illinois v. Caballes, 543 U. S. 405, 407, 125 S. Ct. 834, 160

L. Ed. 2d 842 and attend to related safety concerns. Authority for the seizure ends when tasks tied to

the traffic infraction are—or reasonably should have been—completed. The Fourth Amendment may

tolerate [**3] certain unrelated investigations that do not lengthen the roadside detention, Johnson, 555

U. S., at 327-328, 129 S. Ct. 781, 172 L. Ed. 2d 694 (questioning); Caballes, 543 U. S., at 406, 408,

125 S. Ct. 834, 160 L. Ed. 2d 842 (dog sniff), but a traffic stop “become[s] unlawful if it is prolonged

beyond the time reasonably required to complete th[e] mission” of issuing a warning ticket, id., at 407,

125 S. Ct. 834, 160 L. Ed. 2d 842.

Beyond determining whether to issue a traffic ticket, an officer’s mission during a traffic stop typically

includes checking the driver’s license, determining whether there are outstanding warrants against the

driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the

same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely

and responsibly. See Delaware v. Prouse, 440 U. S. 648, 658-659, 99 S. Ct. 1391, 59 L. Ed. 2d 660.

Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly

characterized as part of the officer’s traffic mission.

In concluding that the de minimis intrusion here could be offset by the Government’s interest in

stopping the flow of illegal drugs, the Eighth Circuit relied on Pennsylvania v. Mimms, 434 U. S. 106,

98 S. Ct. 330, 54 L. Ed. 2d 331. The Court reasoned in Mimms that the government’s “legitimate and

weighty” interest in officer safety outweighed the “de minimis” additional intrusion of requiring a

driver, lawfully stopped, [**4] to exit a vehicle, id., at 110-111, 98 S. Ct. 330, 54 L. Ed. 2d 331. The

officer-safety interest recognized in Mimms, however, stemmed from the danger to the officer

associated with the traffic stop itself. On-scene investigation into other crimes, in contrast, detours

from the officer’s traffic-control mission and therefore gains no support from Mimms.

The Government’s argument that an officer who completes all traffic-related [*496] tasks

expeditiously should earn extra time to pursue an unrelated criminal investigation is unpersuasive, for

Page 2 of 16

191 L. Ed. 2d 492, *496; 2015 U.S. LEXIS 2807, **4

a traffic stop “prolonged beyond” the time in fact needed for the officer to complete his traffic-based

inquiries is “unlawful,” Caballes, 543 U. S., at 407, 125 S. Ct. 834, 160 L. Ed. 2d 842. The critical

question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether

conducting the sniff adds time to the stop. Pp. 5-8.

2. The determination adopted by the District Court that detention for the dog sniff was not

independently supported by individualized suspicion was not reviewed by the Eighth Circuit. That

question therefore remains open for consideration on remand. P. 9.

741 F. 3d 905, vacated and remanded.

Counsel: Shannon P. O’Connor argued the cause for petitioner

Ginger D. Anders argued the cause for respondent

Judges: GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA,

BREYER, SOTOMAYOR, and KAGAN, JJ., joined. [**5] KENNEDY, J., filed a dissenting opinion.

THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined, and in which KENNEDY, J.,

joined as to all but Part III. ALITO, J., filed a dissenting opinion.

Opinion by: GINSBURG

Opinion

JUSTICE GINSBURG delivered the opinion of the Court.

In Illinois v. Caballes, 543 U. S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005), this Court held that

a dog sniff conducted during a lawful traffic stop does not violate the Fourth Amendment’s proscription

of unreasonable seizures. This case presents the question whether the Fourth Amendment tolerates a

dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time

needed to handle the matter for which the stop was made violates the Constitution’s shield against

unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore,

“become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission”

of issuing a ticket for the violation. Id., at 407, 125 S. Ct. 834, 160 L. Ed. 2d 842. The Court so

recognized in Caballes, and we adhere to the line drawn in that decision.

I

Just after midnight on March 27, 2012, police officer Morgan Struble observed a Mercury Mountaineer

veer slowly onto the shoulder of Nebraska State Highway 275 for one or two seconds and then jerk

back onto the road. Nebraska [**6] law prohibits driving on highway shoulders, see Neb. Rev. Stat.

§60-6,142 (2010), and on that basis, Struble pulled the Mountaineer over at 12:06 a.m. Struble is a K-9

officer with the Valley Police Department in Nebraska, and his dog Floyd was in his patrol car that

night. Two men were in the Mountaineer: the driver, Dennys Rodriguez, and a front-seat passenger,

Scott Pollman.

Struble approached the Mountaineer on the passenger’s side. After Rodriguez identified himself,

Struble asked him why he had driven onto the shoulder. Rodriguez replied that he had swerved to avoid

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a pothole. Struble then gathered Rodriguez’s license, registration, and proof of insurance, [*497] and

asked Rodriguez to accompany him to the patrol car. Rodriguez asked if he was required to do so, and

Struble answered that he was not. Rodriguez decided to wait in his own vehicle.

After running a records check on Rodriguez, Struble returned to the Mountaineer. Struble asked

passenger Pollman for his driver’s license and began to question him about where the two men were

coming from and where they were going. Pollman replied that they had traveled to Omaha, Nebraska,

to look at a Ford Mustang that was for sale and that they were returning to Norfolk, [**7] Nebraska.

Struble returned again to his patrol car, where he completed a records check on Pollman, and called

for a second officer. Struble then began writing a warning ticket for Rodriguez for driving on the

shoulder of the road.

Struble returned to Rodriguez’s vehicle a third time to issue the written warning. By 12:27 or 12:28

a.m., Struble had finished explaining the warning to Rodriguez, and had given back to Rodriguez and

Pollman the documents obtained from them. As Struble later testified, at that point, Rodriguez and

Pollman “had all their documents back and a copy of the written warning. I got all the reason[s] for

the stop out of the way[,] . . . took care of all the business.” App. 70.

Nevertheless, Struble did not consider Rodriguez “free to leave.” Id., at 69-70. Although justification

for the traffic stop was “out of the way,” id., at 70, Struble asked for permission to walk his dog around

Rodriguez’s vehicle. Rodriguez said no. Struble then instructed Rodriguez to turn off the ignition, exit

the vehicle, and stand in front of the patrol car to wait for the second officer. Rodriguez complied. At

12:33 a.m., a deputy sheriff arrived. Struble retrieved his dog and led him twice around the

Mountaineer. [**8] The dog alerted to the presence of drugs halfway through Struble’s second pass.

All told, seven or eight minutes had elapsed from the time Struble issued the written warning until the

dog indicated the presence of drugs. A search of the vehicle revealed a large bag of methamphetamine.

Rodriguez was indicted in the United States District Court for the District of Nebraska on one count

of possession with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U. S.

C. §§841(a)(1) and (b)(1). He moved to suppress the evidence seized from his car on the ground,

among others, that Struble had prolonged the traffic stop without reasonable suspicion in order to

conduct the dog sniff.

After receiving evidence, a Magistrate Judge recommended that the motion be denied. The Magistrate

Judge found no probable cause to search the vehicle independent of the dog alert. App. 100 (apart from

“information given by the dog,” “Officer Struble had [no]thing other than a rather large hunch”). He

further found that no reasonable suspicion supported the detention once Struble issued the written

warning. He concluded, however, that under Eighth Circuit precedent, extension of the stop by “seven

to eight minutes” for the dog [**9] sniff was only a de minimis intrusion on Rodriguez’s Fourth

Amendment rights and was therefore permissible.

The District Court adopted the Magistrate Judge’s factual findings and legal conclusions and denied

Rodriguez’s motion to suppress. The [*498] court noted that, in the Eighth Circuit, “dog sniffs that

occur within a short time following the completion of a traffic stop are not constitutionally prohibited

if they constitute only de minimis intrusions.” App. 114 (quoting United States v. Alexander, 448 F. 3d

1014, 1016 (CA8 2006)). The court thus agreed with the Magistrate Judge that the “7 to 10 minutes”

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added to the stop by the dog sniff “was not of constitutional significance.” App. 114. Impelled by that

decision, Rodriguez entered a conditional guilty plea and was sentenced to five years in prison.

The Eighth Circuit affirmed. The “seven- or eight-minute delay” in this case, the opinion noted,

resembled delays that the court had previously ranked as permissible. 741 F. 3d 905, 907 (2014). The

Court of Appeals thus ruled that the delay here constituted an acceptable “de minimis intrusion on

Rodriguez’s personal liberty.” Id., at 908. Given that ruling, the court declined to reach the question

whether Struble had reasonable suspicion to continue Rodriguez’s detention after issuing the written

[**10] warning.

We granted certiorari to resolve a division among lower courts on the question whether police routinely

may extend an otherwise-completed traffic stop, absent reason-able suspicion, in order to conduct a

dog sniff. 573 U. S. ___, 135 S. Ct. 43, 189 L. Ed. 2d 896 (2014). Compare, e.g., United States v.

Morgan, 270 F. 3d 625, 632 (CA8 2001) (postcompletion delay of “well under ten minutes”

permissible), with, e.g., State v. Baker, 2010 UT 18, ¶13, 229 P. 3d 650, 658 (2010) (“[W]ithout

additional reasonable suspicion, the officer must allow the seized person to depart once the purpose of

the stop has concluded.”).

II

A seizure for a traffic violation justifies a police investigation of that violation. “[A] relatively brief

encounter,” a routine traffic stop is “more analogous to a so-called ‘Terry stop’ . . . than to a formal

arrest.” Knowles v. Iowa, 525 U. S. 113, 117, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998) (quoting

Berkemer v. McCarty, 468 U. S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), in turn citing Terry

v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). See also Arizona v. Johnson, 555 U.

S. 323, 330, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009). Like a Terry stop, the tolerable duration of police

inquiries in the traffic-stop context is determined by the seizure’s “mission”—to address the traffic

violation that warranted the stop, Caballes, 543 U. S., at 407 125 S. Ct. 834, 160 L. Ed. 2d 842, and

attend to related safety concerns, infra, at 6-7. See also United States v. Sharpe, 470 U. S. 675, 685,

105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985); Florida v. Royer, 460 U. S. 491, 500, 103 S. Ct. 1319, 75

L. Ed. 2d 229 (1983) (plurality opinion) (“The scope of the detention must be carefully tailored to its

underlying justification.”). Because addressing the infraction is the purpose of the stop, it may “last no

longer than is necessary to effectuate th[at] purpose.” [**11] Ibid. See also Caballes, 543 U. S., at 407,

125 S. Ct. 834, 160 L. Ed. 2d 842. Authority for the seizure thus ends when tasks tied to the traffic

infraction are—or reasonably should have been—completed. See Sharpe, 470 U. S., at 686, 105 S. Ct.

1568, 84 L. Ed. 2d 605 (in determining the reasonable duration of a stop, “it [is] appropriate to examine

whether the police diligently pursued [the] investigation”).

[*499] Our decisions in Caballes and Johnson heed these constraints. In both cases, we concluded that

the Fourth Amendment tolerated certain unrelated investigations that did not lengthen the roadside

detention. Johnson, 555 U. S., at 327-328, 129 S. Ct. 781, 172 L. Ed. 2d 694 (questioning); Caballes,

543 U. S., at 406, 408, 125 S. Ct. 834, 160 L. Ed. 2d 842 (dog sniff). In Caballes, however, we

cautioned that a traffic stop “can become unlawful if it is prolonged beyond the time reasonably

required to complete th[e] mission” of issuing a warning ticket. 543 U. S., at 407, 125 S. Ct. 834, 160

L. Ed. 2d 842. And we repeated that admonition in Johnson: The seizure remains lawful only “so long

as [unrelated] inquiries do not measurably extend the duration of the stop.” 555 U. S., at 333, 129 S.

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Ct. 781, 172 L. Ed. 2d 694. See also Muehler v. Mena, 544 U. S. 93, 101, 125 S. Ct. 1465, 161 L. Ed.

2d 299 (2005) (because unrelated inquiries did not “exten[d] the time [petitioner] was detained[,] . .

. no additional Fourth Amendment justification . . . was required”). An officer, in other words, may

conduct certain unrelated checks during an otherwise lawful traffic stop. But contrary to JUSTICE

ALITO’s suggestion, post, at 4, n. 2, he may not do so in a way that prolongs [**12] the stop, absent

the reasonable suspicion ordinarily demanded to justify detaining an individual. But see post, at 1-2

(ALITO, J., dissenting) (premising opinion on the dissent’s own finding of “reasonable suspicion,”

although the District Court reached the opposite conclusion, and the Court of Appeals declined to

consider the issue).

Beyond determining whether to issue a traffic ticket, an officer’s mission includes “ordinary inquiries

incident to [the traffic] stop.” Caballes, 543 U. S., at 408, 125 S. Ct. 834, 160 L. Ed. 2d 842. Typically

such inquiries involve checking the driver’s license, determining whether there are outstanding

warrants against the driver, and inspecting the automobile’s registration and proof of insurance. See

Delaware v. Prouse, 440 U. S. 648, 658-660, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). See also 4 W.

LaFave, Search and Seizure §9.3(c), pp. 507-517 (5th ed. 2012). These checks serve the same objective

as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and

responsibly. See Prouse, 440 U. S., at 658-659, 99 S. Ct. 1391, 59 L. Ed. 2d 660; LaFave, Search and

Seizure §9.3(c), at 516 (A “warrant check makes it possible to determine whether the apparent traffic

violator is wanted for one or more previous traffic offenses.”).

A dog sniff, by contrast, is a measure aimed at “detect[ing] evidence of ordinary criminal wrongdoing.”

Indianapolis v. Edmond, 531 U. S. 32, 40-41, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000). See also

Florida v. Jardines, 569 U. S. 1, ___-___, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013) (slip op., at 7-8).

Candidly, [**13] the Government acknowledged at oral argument that a dog sniff, unlike the routine

measures just mentioned, is not an ordinary incident of a traffic stop. See Tr. of Oral Arg. 33. Lacking

the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly

characterized as part of the officer’s traffic mission.

In advancing its de minimis rule, the Eighth Circuit relied heavily on our decision in Pennsylvania v.

Mimms, 434 U. S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) (per curiam). [*500] See United States

v. $404,905.00 in U. S. Currency, 182 F. 3d 643, 649 (CA8 1999). In Mimms, we reasoned that the

government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional

intrusion of requiring a driver, already lawfully stopped, to exit the vehicle. 434 U. S., at 110-111, 98

S. Ct. 330, 54 L. Ed. 2d 331. See also Maryland v. Wilson, 519 U. S. 408, 413-415, 117 S. Ct. 882, 137

L. Ed. 2d 41 (1997) (passengers may be required to exit vehicle stopped for traffic violation). The

Eighth Circuit, echoed in JUSTICE THOMAS’s dissent, believed that the imposition here similarly

could be offset by the Government’s “strong interest in interdicting the flow of illegal drugs along the

nation’s highways.” $404,905.00 in U. S. Currency, 182 F. 3d, at 649; see post, at 9.

Unlike a general interest in criminal enforcement, however, the government’s officer safety interest

stems from the mission of the stop itself. Traffic stops are “especially fraught with danger to police

officers,” [**14] Johnson, 555 U. S., at 330, 129 S. Ct. 781, 172 L. Ed. 2d 694 (internal quotation

marks omitted), so an officer may need to take certain negligibly burdensome precautions in order to

complete his mission safely. Cf. United States v. Holt, 264 F. 3d 1215, 1221-1222 (CA10 2001) (en

banc) (recognizing officer safety justification for criminal record and outstanding warrant checks),

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abrogated on other grounds as recognized in United States v. Stewart, 473 F. 3d 1265, 1269 (CA10

2007). On-scene investigation into other crimes, however, detours from that mission. See supra, at 6-7.

So too do safety precautions taken in order to facilitate such detours. But cf. post, at 2-3 (ALITO, J.,

dissenting). Thus, even assuming that the imposition here was no more intrusive than the exit order in

Mimms, the dog sniff could not be justified on the same basis. Highway and officer safety are interests

different in kind from the Government’s endeavor to detect crime in general or drug trafficking in

particular.

The Government argues that an officer may “incremental[ly]” prolong a stop to conduct a dog sniff so

long as the officer is reasonably diligent in pursuing the traffic-related purpose of the stop, and the

overall duration of the stop remains reasonable in relation to the duration of other traffic stops

involving similar circumstances. Brief for United States 36-39. The Government’s argument, in [**15]

effect, is that by completing all traffic-related tasks expeditiously, an officer can earn bonus time to

pursue an unrelated criminal investigation. See also post, at 2-5 (THOMAS, J., dissenting) (embracing

the Government’s argument). The reasonableness of a seizure, however, depends on what the police in

fact do. See Knowles, 525 U. S., at 115-117, 119 S. Ct. 484, 142 L. Ed. 2d 492. In this regard, the

Government acknowledges that “an officer always has to be reasonably diligent.” Tr. of Oral Arg. 49.

How could diligence be gauged other than by noting what the officer actually did and how he did it?

If an officer can complete traffic-based inquiries expeditiously, then that is the amount of “time

reasonably required to complete [the stop’s] mission.” Caballes, 543 U. S., at 407, 125 S. Ct. 834, 160

L. Ed. 2d 842. As we said in Caballes and reiterate today, a traffic stop “prolonged beyond” that point

is “unlawful.” [*501] Ibid. The critical question, then, is not whether the dog sniff occurs before or

after the officer issues a ticket, as JUSTICE ALITO supposes, post, at 2-4, but whether conducting the

sniff “prolongs”—i.e., adds time to—“the stop,” supra, at 6.

III

The Magistrate Judge found that detention for the dog sniff in this case was not independently

supported by individualized suspicion, see App. 100, and the [**16] District Court adopted the

Magistrate Judge’s findings, see id., at 112-113, . The Court of Appeals, however, did not review that

determination. But see post, at 1, 10-12 (THOMAS, J., dissenting) (resolving the issue, nevermind that

the Court of Appeals left it unaddressed); post, at 1-2 (ALITO, J., dissenting) (upbraiding the Court for

addressing the sole issue decided by the Court of Appeals and characterizing the Court’s answer as

“unnecessary” because the Court, instead, should have decided an issue the Court of Appeals did not

decide). The question whether reasonable suspicion of criminal activity justified detaining Rodriguez

beyond completion of the traffic infraction investigation, therefore, remains open for Eighth Circuit

consideration on remand.

***

For the reasons stated, the judgment of the United States Court of Appeals for the Eighth Circuit is

vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Dissent by: KENNEDY; THOMAS; ALITO

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Dissent

JUSTICE KENNEDY, dissenting.

My join in JUSTICE THOMAS’ dissenting opinion does not extend to Part III. Although the issue

discussed in that Part was argued here, the Court of Appeals has not addressed that aspect of the [**17]

case in any detail. In my view the better course would be to allow that court to do so in the first

instance.

JUSTICE THOMAS, with whom JUSTICE ALITO joins, and with whom JUSTICE KENNEDY joins

as to all but Part III, dissenting.

Ten years ago, we explained that “conducting a dog sniff [does] not change the character of a traffic

stop that is lawful at its inception and otherwise executed in a reasonable manner.” Illinois v. Caballes,

543 U. S. 405, 408, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). The only question here is whether an

officer executed a stop in a reasonable manner when he waited to conduct a dog sniff until after he had

given the driver a written warning and a backup unit had arrived, bringing the overall duration of the

stop to 29 minutes. Because the stop was reasonably executed, no Fourth Amendment violation

occurred. The Court’s holding to the contrary cannot be reconciled with our decision in Caballes or a

number of common police practices. It was also unnecessary, as the officer possessed reasonable

suspicion to continue to hold the driver to conduct the dog sniff. I respectfully dissent.

I

The Fourth Amendment protects “[t]he right of the people to be secure [*502] in their persons, houses,

papers, and effects, against unreasonable searches and seizures.” U. S. Const., Amdt. 4. As the text

indicates, and as we [**18] have repeatedly confirmed, “the ultimate touchstone of the Fourth

Amendment is ‘reasonableness.’” Brigham City v. Stuart, 547 U. S. 398, 403, 126 S. Ct. 1943, 164 L.

Ed. 2d 650 (2006). We have defined reasonableness “in objective terms by examining the totality of

the circumstances,” Ohio v. Robinette, 519 U. S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996), and

by considering “the traditional protections against unreasonable searches and seizures afforded by the

common law at the time of the framing,” Atwater v. Lago Vista, 532 U. S. 318, 326, 121 S. Ct. 1536,

149 L. Ed. 2d 549 (2001) (internal quotation marks omitted). When traditional protections have not

provided a definitive answer, our precedents have “analyzed a search or seizure in light of traditional

standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an

individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate

governmental interests.” Virginia v. Moore, 553 U. S. 164, 171, 128 S. Ct. 1598, 170 L. Ed. 2d 559

(2008) (internal quotation marks omitted).

Although a traffic stop “constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth

Amendment],” such a seizure is constitutionally “reasonable where the police have probable cause to

believe that a traffic violation has occurred.” Whren v. United States, 517 U. S. 806, 809-810, 116 S.

Ct. 1769, 135 L. Ed. 2d 89 (1996). But “a seizure that is lawful at its inception can violate the Fourth

Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.”

Caballes, supra, at 407, 125 S. Ct. 834, 160 L. Ed. 2d 842.

Because Rodriguez does [**19] not dispute that Officer Struble had probable cause to stop him, the

only question is whether the stop was otherwise executed in a reasonable manner. See Brief for

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Appellant in No. 13-1176 (CA8), p. 4, n. 2. I easily conclude that it was. Approximately 29 minutes

passed from the time Officer Struble stopped Rodriguez until his narcotics-detection dog alerted to the

presence of drugs. That amount of time is hardly out of the ordinary for a traffic stop by a single officer

of a vehicle containing multiple occupants even when no dog sniff is involved. See, e.g., United States

v. Ellis, 497 F. 3d 606 (CA6 2007) (22 minutes); United States v. Barragan, 379 F. 3d 524 (CA8 2004)

(approximately 30 minutes). During that time, Officer Struble conducted the ordinary activities of a

traffic stop—he approached the vehicle, questioned Rodriguez about the observed violation, asked

Pollman about their travel plans, ran serial warrant checks on Rodriguez and Pollman, and issued a

written warning to Rodriguez. And when he decided to conduct a dog sniff, he took the precaution of

calling for backup out of concern for his safety. See 741 F. 3d 905, 907 (CA8 2014); see also

Pennsylvania v. Mimms, 434 U. S. 106, 110, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) (per curiam)

(officer safety is a “legitimate and weighty” concern relevant to reasonableness).

As Caballes makes clear, the fact that Officer Struble waited [**20] until after he gave Rodriguez the

warning to conduct the dog sniff does not alter this analysis. Because “the use of a well-trained

narcotics-detection dog . . . generally does not implicate legitimate [*503] privacy interests,” 543 U.

S., at 409, 125 S. Ct. 834, 160 L. Ed. 2d 842, “conducting a dog sniff would not change the character

of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner,” id., at

408, 125 S. Ct. 834, 160 L. Ed. 2d 842. The stop here was “lawful at its inception and otherwise

executed in a reasonable manner.” Ibid. As in Caballes, “conducting a dog sniff [did] not change the

character of [the] traffic stop,” ibid., and thus no Fourth Amendment violation occurred.

II

Rather than adhere to the reasonableness requirement that we have repeatedly characterized as the

“touchstone of the Fourth Amendment,” Brigham City, supra, at 403, 126 S. Ct. 1943, 164 L. Ed. 2d

650, the majority constructed a test of its own that is inconsistent with our precedents.

A

The majority’s rule requires a traffic stop to “en[d] when tasks tied to the traffic infraction are—or

reasonably should have been—completed.” Ante, at 5. “If an officer can complete traffic-based

inquiries expeditiously, then that is the amount of time reasonably required to complete the stop’s

mission” and he may hold the individual no longer. Ante, at 8 (internal [**21] quotation marks and

alterations omitted). The majority’s rule thus imposes a one-way ratchet for constitutional protection

linked to the characteristics of the individual officer conducting the stop: If a driver is stopped by a

particularly efficient officer, then he will be entitled to be released from the traffic stop after a shorter

period of time than a driver stopped by a less efficient officer. Similarly, if a driver is stopped by an

officer with access to technology that can shorten a records check, then he will be entitled to be

released from the stop after a shorter period of time than an individual stopped by an officer without

access to such technology.

I “cannot accept that the search and seizure protections of the Fourth Amendment are so variable and

can be made to turn upon such trivialities.” Whren, 517 U. S., at 815, 116 S. Ct. 1769, 135 L. Ed. 2d

89 (citations omitted). We have repeatedly explained that the reasonableness inquiry must not hinge on

the characteristics of the individual officer conducting the seizure. We have held, for example, that an

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officer’s state of mind “does not invalidate [an] action taken as long as the circumstances, viewed

objectively, justify that action.” Id., at 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (internal quotation marks

omitted). We have spurned theories [**22] that would make the Fourth Amendment “change with local

law enforcement practices.” Moore, supra, at 172, 128 S. Ct. 1598, 170 L. Ed. 2d 559. And we have

rejected a rule that would require the offense establishing probable cause to be “closely related to” the

offense identified by the arresting officer, as such a rule would make “the constitutionality of an arrest

. . . vary from place to place and from time to time, depending on whether the arresting officer states

the reason for the detention and, if so, whether he correctly identifies a general class of offense for

which probable cause exists.” Devenpeck v. Alford, 543 U. S. 146, 154, 125 S. Ct. 588, 160 L. Ed. 2d

537 (2004) (internal quotation marks and citation omitted). In Devenpeck, a unanimous [*504] Court

explained: “An arrest made by a knowledgeable, veteran officer would be valid, whereas an arrest

made by a rookie in precisely the same circumstances would not. We see no reason to ascribe to the

Fourth Amendment such arbitrarily variable protection.” Ibid.

The majority’s logic would produce similarly arbitrary results. Under its reasoning, a traffic stop made

by a rookie could be executed in a reasonable manner, whereas the same traffic stop made by a

knowledgeable, veteran officer in precisely the same circumstances might not, if in fact his knowledge

and experience made him capable [**23] of completing the stop faster. We have long rejected

interpretations of the Fourth Amendment that would produce such haphazard results, and I see no

reason to depart from our consistent practice today.

B

As if that were not enough, the majority also limits the duration of the stop to the time it takes the

officer to complete a narrow category of “traffic-based inquiries.” Ante, at 8. According to the majority,

these inquiries include those that “serve the same objective as enforcement of the traffic code: ensuring

that vehicles on the road are operated safely and responsibly.” Ante, at 6. Inquiries directed to

“detecting evidence of ordinary criminal wrongdoing” are not traffic-related inquiries and thus cannot

count toward the overall duration of the stop. Ibid. (internal quotation marks and alteration omitted).

The combination of that definition of traffic-related inquiries with the majority’s officer-specific

durational limit produces a result demonstrably at odds with our decision in Caballes. Caballes

expressly anticipated that a traffic stop could be reasonably prolonged for officers to engage in a dog

sniff. We explained that no Fourth Amendment violation had occurred in Caballes, where the “duration

of the stop [**24] . . . was entirely justified by the traffic offense and the ordinary inquiries incident

to such a stop,” but suggested a different result might attend a case “involving a dog sniff that occurred

during an unreasonably prolonged traffic stop.” 543 U. S., at 407-408, 125 S. Ct. 834, 160 L. Ed. 2d

842 (emphasis added). The dividing line was whether the overall duration of the stop exceeded “the

time reasonably required to complete th[e] mission,” id., at 407, 125 S. Ct. 834, 160 L. Ed. 2d 842, not,

as the majority suggests, whether the duration of the stop “in fact” exceeded the time necessary to

complete the traffic-related inquiries, ante, at 8.

The majority’s approach draws an artificial line between dog sniffs and other common police practices.

The lower courts have routinely confirmed that warrant checks are a constitutionally permissible part

of a traffic stop, see, e.g., United States v. Simmons, 172 F. 3d 775, 778 (CA11 1999); United States

v. Mendez, 118 F. 3d 1426, 1429 (CA10 1997); United States v. Shabazz, 993 F. 2d 431, 437 (CA5

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1993), and the majority confirms that it finds no fault in these measures, ante, at 6. Yet its reasoning

suggests the opposite. Such warrant checks look more like they are directed to “detecting evidence of

ordinary criminal wrongdoing” than to “ensuring that vehicles on the road are operated safely and

responsibly.” Ante, at 6 (internal quotation [*505] marks and alteration omitted). Perhaps one could

argue that the existence [**25] of an outstanding warrant might make a driver less likely to operate

his vehicle safely and responsibly on the road, but the same could be said about a driver in possession

of contraband. A driver confronted by the police in either case might try to flee or become violent

toward the officer. But under the majority’s analysis, a dog sniff, which is directed at uncovering that

problem, is not treated as a traffic-based inquiry. Warrant checks, arguably, should fare no better. The

majority suggests that a warrant check is an ordinary inquiry incident to a traffic stop because it can

be used “‘to determine whether the apparent traffic violator is wanted for one or more previous traffic

offenses.’” Ante, at 6 (quoting 4 W. LaFave, Search and Seizure §9.3(c), p. 516 (5th ed. 2012)). But

as the very treatise on which the majority relies notes, such checks are a “manifest[ation of ] the ‘war

on drugs’ motivation so often underlying [routine traffic] stops,” and thus are very much like the dog

sniff in this case. Id., §9.3(c), at 507-508.

Investigative questioning rests on the same basis as the dog sniff. “Asking questions is an essential part

of police investigations.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U. S. 177,

185, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004). And the lower courts have routinely [**26] upheld

such questioning during routine traffic stops. See, e.g., United States v. Rivera, 570 F. 3d 1009, 1013

(CA8 2009); United States v. Childs, 277 F. 3d 947, 953-954 (CA7 2002). The majority’s reasoning

appears to allow officers to engage in some questioning aimed at detecting evidence of ordinary

criminal wrongdoing. Ante, at 5. But it is hard to see how such inquiries fall within the “seizure’s

‘mission’ [of ] address[ing] the traffic violation that warranted the stop,” or “attend[ing] to related

safety concerns.” Ibid. Its reasoning appears to come down to the principle that dogs are different.

C

On a more fundamental level, the majority’s inquiry elides the distinction between traffic stops based

on probable cause and those based on reasonable suspicion. Probable cause is the “traditional

justification” for the seizure of a person. Whren, 517 U. S., at 817, 116 S. Ct. 1769, 135 L. Ed. 2d 89

(emphasis deleted); see also Dunaway v. New York, 442 U. S. 200, 207-208, 99 S. Ct. 2248, 60 L. Ed.

2d 824 (1979). This Court created an exception to that rule in Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868,

20 L. Ed. 2d 889 (1968), permitting “police officers who suspect criminal activity to make limited

intrusions on an individual’s personal security based on less than probable cause,” Michigan v.

Summers, 452 U. S. 692, 698, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981). Reasonable suspicion is the

justification for such seizures. Prado Navarette v. California, 572 U. S. ___, ___, 134 S. Ct. 1683, 188

L. Ed. 2d 680 (2014) (slip op., at 3).

Traffic stops can be initiated based on probable cause or reasonable suspicion. Although the Court has

commented that a routine traffic stop is “more analogous to a so-called ‘Terry [**27] stop’ than to a

formal arrest,” it has rejected the notion “that a traffic stop supported by probable cause may not

exceed the bounds set by the Fourth Amendment on the scope of a Terry stop.” Berkemer v. McCarty,

468 U. S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317, and n. 29 (1984) (citation omitted).

[*506] Although all traffic stops must be executed reasonably, our precedents make clear that traffic

stops justified by reasonable suspicion are subject to additional limitations that those justified by

Page 11 of 16

191 L. Ed. 2d 492, *506; 2015 U.S. LEXIS 2807, **27

probable cause are not. A traffic stop based on reasonable suspicion, like all Terry stops, must be

“justified at its inception” and “reasonably related in scope to the circumstances which justified the

interference in the first place.” Hiibel, 542 U. S., at 185, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (internal

quotation marks omitted). It also “cannot continue for an excessive period of time or resemble a

traditional arrest.” Id., at 185-186, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (citation omitted). By contrast,

a stop based on probable cause affords an officer considerably more leeway. In such seizures, an officer

may engage in a warrantless arrest of the driver, Atwater, 532 U. S., at 354, 121 S. Ct. 1536, 149 L.

Ed. 2d 549, a warrantless search incident to arrest of the driver, Riley v. California, 573 U. S. ___, ___,

134 S. Ct. 2473, 189 L. Ed. 2d 430, 441 (2014), and a warrantless search incident to arrest of the

vehicle if it is reasonable to believe evidence relevant to the crime of arrest might be found there,

Arizona v. Gant, 556 U. S. 332, 335, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).

The majority casually tosses this [**28] distinction aside. It asserts that the traffic stop in this case,

which was undisputedly initiated on the basis of probable cause, can last no longer than is in fact

necessary to effectuate the mission of the stop. Ante, at 8. And, it assumes that the mission of the stop

was merely to write a traffic ticket, rather than to consider making a custodial arrest. Ante, at 5. In

support of that durational requirement, it relies primarily on cases involving Terry stops. See ante, at

5-7 (citing Arizona v. Johnson, 555 U. S. 323, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009) (analyzing

“stop and frisk” of passenger in a vehicle temporarily seized for a traffic violation); United States v.

Sharpe, 470 U. S. 675, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) (analyzing seizure of individuals based

on suspicion of marijuana trafficking); Florida v. Royer, 460 U. S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d

229 (1983) (plurality opinion) (analyzing seizure of man walking through airport on suspicion of

narcotics activity)).

The only case involving a traffic stop based on probable cause that the majority cites for its rule is

Caballes. But, that decision provides no support for today’s restructuring of our Fourth Amendment

jurisprudence. In Caballes, the Court made clear that, in the context of a traffic stop supported by

probable cause, “a dog sniff would not change the character of a traffic stop that is lawful at its

inception and otherwise executed [**29] in a reasonable manner.” 543 U. S., at 408, 125 S. Ct. 834,

160 L. Ed. 2d 842. To be sure, the dissent in Caballes would have “appl[ied] Terry’s reasonable-relation

test . . . to determine whether the canine sniff impermissibly expanded the scope of the initially valid

seizure of Caballes.” Id., at 420, 125 S. Ct. 834, 160 L. Ed. 2d 842 (GINSBURG, J., dissenting). But

even it conceded that the Caballes majority had “implicitly [rejected] the application of Terry to a

traffic stop converted, by calling in a dog, to a drug search.” Id., at 421, 125 S. Ct. 834, 160 L. Ed. 2d

842.

By strictly limiting the tasks that define the durational scope of the traffic [*507] stop, the majority

accomplishes today what the Caballes dissent could not: strictly limiting the scope of an officer’s

activities during a traffic stop justified by probable cause. In doing so, it renders the difference between

probable cause and reasonable suspicion virtually meaningless in this context. That shift is supported

neither by the Fourth Amendment nor by our precedents interpreting it. And, it results in a

constitutional framework that lacks predictability. Had Officer Struble arrested, handcuffed, and taken

Rodriguez to the police station for his traffic violation, he would have complied with the Fourth

Amendment. See Atwater, supra, at 354-355, 121 S. Ct. 1536, 149 L. Ed. 2d 549. But because he made

Rodriguez wait for seven or eight extra [**30] minutes until a dog arrived, he evidently committed a

constitutional violation. Such a view of the Fourth Amendment makes little sense.

Page 12 of 16

191 L. Ed. 2d 492, *507; 2015 U.S. LEXIS 2807, **30

III

Today’s revision of our Fourth Amendment jurisprudence was also entirely unnecessary. Rodriguez

suffered no Fourth Amendment violation here for an entirely independent reason: Officer Struble had

reasonable suspicion to continue to hold him for investigative purposes. Our precedents make clear that

the Fourth Amendment permits an officer to conduct an investigative traffic stop when that officer has

“a particularized and objective basis for suspecting the particular person stopped of criminal activity.”

Prado Navarette, 572 U. S., at ___, 134 S. Ct. 1683, 188 L. Ed. 2d 680, 686, 691, 692) (internal

quotation marks omitted). Reasonable suspicion is determined by looking at “the whole picture,” ibid.,

taking into account “the factual and practical considerations of everyday life on which reasonable and

prudent men, not legal technicians, act,” Ornelas v. United States, 517 U. S. 690, 695, 116 S. Ct. 1657,

134 L. Ed. 2d 911 (1996) (internal quotation marks omitted).

Officer Struble testified that he first became suspicious that Rodriguez was engaged in criminal activity

for a number of reasons. When he approached the vehicle, he smelled an “overwhelming odor of air

freshener coming from the vehicle,” which is, in his experience, “a common attempt to conceal an odor

that [people] don’t [**31] want . . . to be smelled by the police.” App. 20-21. He also observed, upon

approaching the front window on the passenger side of the vehicle, that Rodriguez’s passenger, Scott

Pollman, appeared nervous. Pollman pulled his hat down low, puffed nervously on a cigarette, and

refused to make eye contact with him. The officer thought he was “more nervous than your typical

passenger” who “do[esn’t] have anything to worry about because [t]hey didn’t commit a [traffic]

violation.” Id., at 34.

Officer Struble’s interactions with the vehicle’s occupants only increased his suspicions. When he

asked Rodriguez why he had driven onto the shoulder, Rodriguez claimed that he swerved to avoid a

pothole. But that story could not be squared with Officer Struble’s observation of the vehicle slowly

driving off the road before being jerked back onto it. And when Officer Struble asked Pollman where

they were coming from and where they were going, Pollman told him they were traveling from Omaha,

Nebraska, back to Norfolk, Nebraska, after looking at a vehicle they were considering purchasing.

Pollman told the officer that he had neither seen pictures of the vehicle nor confirmed title before the

trip. As Officer Struble [**32] [*508] explained, it “seemed suspicious” to him “to drive . . .

approximately two hours . . . late at night to see a vehicle sight unseen to possibly buy it,” id., at 26,

and to go from Norfolk to Omaha to look at it because “[u]sually people leave Omaha to go get

vehicles, not the other way around” due to higher Omaha taxes, id., at 65.

These facts, taken together, easily meet our standard for reasonable suspicion. “[N]ervous, evasive

behavior is a pertinent factor in determining reasonable suspicion,” Illinois v. Wardlow, 528 U. S. 119,

124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000), and both vehicle occupants were engaged in such

conduct. The officer also recognized heavy use of air freshener, which, in his experience, indicated the

presence of contraband in the vehicle. “[C]ommonsense judgments and inferences about human

behavior” further support the officer’s conclusion that Pollman’s story about their trip was likely a

cover story for illegal activity. Id., at 125, 120 S. Ct. 673, 145 L. Ed. 2d 570. Taking into account all

the relevant facts, Officer Struble possessed reasonable suspicion of criminal activity to conduct the

dog sniff.

Rodriguez contends that reasonable suspicion cannot exist because each of the actions giving rise to

the officer’s suspicions could be entirely innocent, but our cases easily dispose of that argument. Acts

Page 13 of 16

191 L. Ed. 2d 492, *508; 2015 U.S. LEXIS 2807, **32

that, by themselves, [**33] might be innocent can, when taken together, give rise to reasonable

suspicion. United States v. Arvizu, 534 U. S. 266, 274-275, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002).

Terry is a classic example, as it involved two individuals repeatedly walking back and forth, looking

into a store window, and conferring with one another as well as with a third man. 392 U. S., at 6, 88

S. Ct. 1868, 20 L. Ed. 2d 889. The Court reasoned that this “series of acts, each of them perhaps

innocent in itself, . . . together warranted further investigation,” id., at 22, 88 S. Ct. 1868, 20 L. Ed.

2d 889, and it has reiterated that analysis in a number of cases, see, e.g., Arvizu, supra, at 277, 122

S. Ct. 744, 151 L. Ed. 2d 740; United States v. Sokolow, 490 U. S. 1, 9-10, 109 S. Ct. 1581, 104 L. Ed.

2d 1 (1989). This one is no different.

***

I would conclude that the police did not violate the Fourth Amendment here. Officer Struble possessed

probable cause to stop Rodriguez for driving on the shoulder, and he executed the subsequent stop in

a reasonable manner. Our decision in Caballes requires no more. The majority’s holding to the contrary

is irreconcilable with Caballes and a number of other routine police practices, distorts the distinction

between traffic stops justified by probable cause and those justified by reasonable suspicion, and

abandons reasonableness as the touchstone of the Fourth Amendment. I respectfully dissent.

JUSTICE ALITO, dissenting.

This is an unnecessary, 1 impractical, and arbitrary decision. It addresses a purely [**34] hypothetical

question: whether the traffic stop in this case would be unreasonable if the police officer, prior to

leading a drug-sniffing dog around the exterior of petitioner’s car, did not already have reasonable

suspicion that the car contained drugs. In fact, however, the police officer did have reasonable

suspicion, [*509] and, as a result, the officer was justified in detaining the occupants for the short

period of time (seven or eight minutes) that is at issue.

The relevant facts are not in dispute. Officer Struble, who made the stop, was the only witness at the

suppression hearing, and his testimony about what happened was not challenged. Defense counsel

argued that the facts recounted by Officer Struble were insufficient to establish reasonable suspicion,

but defense counsel did not dispute those facts or attack the officer’s credibility. Similarly, the

Magistrate Judge who conducted the hearing did not question the officer’s credibility. And as JUSTICE

THOMAS’s opinion shows, the facts recounted by Officer Struble “easily meet our standard for

reasonable suspicion.” Ante, at 11 (dissenting opinion); see also, e.g., United States v. Carpenter, 462

F. 3d 981, 986-987 (CA8 2006) (finding reasonable suspicion for [**35] a dog sniff based on

implausible travel plans and nervous conduct); United States v. Ludwig, 641 F. 3d 1243, 1248-1250

(CA10 2011) (finding reasonable suspicion for a dog sniff where, among other things, the officer

smelled “strong masking odors,” the defendant’s “account of his travel was suspect,” and the defendant

“was exceptionally nervous throughout his encounter”).

Not only does the Court reach out to decide a question not really presented by the facts in this case,

but the Court’s answer to that question is arbitrary. The Court refuses to address the real Fourth

Amendment question: whether the stop was unreasonably prolonged. Instead, the Court latches onto the

1

See Brief in Opposition 11-14.

Page 14 of 16

191 L. Ed. 2d 492, *509; 2015 U.S. LEXIS 2807, **35

fact that Officer Struble delivered the warning prior to the dog sniff and proclaims that the authority

to detain based on a traffic stop ends when a citation or warning is handed over to the driver. The Court

thus holds that the Fourth Amendment was violated, not because of the length of the stop, but simply

because of the sequence in which Officer Struble chose to perform his tasks.

This holding is not only arbitrary; it is perverse since Officer Struble chose that sequence for the

purpose of protecting his own safety and possibly the safety of others. See App. 71-72. Without

prolonging the stop, Officer Struble [**36] could have conducted the dog sniff while one of the tasks

that the Court regards as properly part of the traffic stop was still in progress, but that sequence would

have entailed unnecessary risk. At approximately 12:19 a.m., after collecting Pollman’s driver’s

license, Officer Struble did two things. He called in the information needed to do a records check on

Pollman (a step that the Court recognizes was properly part of the traffic stop), and he requested that

another officer report to the scene. Officer Struble had decided to perform a dog sniff but did not want

to do that without another officer present. When occupants of a vehicle who know that their vehicle

contains a large amount of illegal drugs see that a drug-sniffing dog has alerted for the presence of

drugs, they will almost certainly realize that the police will then proceed to search the vehicle, discover

the drugs, and make arrests. Thus, it is reasonable for an officer to believe that an alert will increase

the risk that the occupants of the vehicle will attempt to flee or perhaps even attack the officer. See,

e.g., United States v. Dawdy, 46 F. 3d 1427, 1429 (CA8 1995) (recounting scuffle between officer and

defendant after drugs were discovered).

[*510] In this case, Officer [**37] Struble was concerned that he was outnumbered at the scene, and

he therefore called for backup and waited for the arrival of another officer before conducting the sniff.

As a result, the sniff was not completed until seven or eight minutes after he delivered the warning.

But Officer Struble could have proceeded with the dog sniff while he was waiting for the results of the

records check on Pollman and before the arrival of the second officer. The drug-sniffing dog was

present in Officer Struble’s car. If he had chosen that riskier sequence of events, the dog sniff would

have been completed before the point in time when, according to the Court’s analysis, the authority to

detain for the traffic stop ended. Thus, an action that would have been lawful had the officer made the

unreasonable decision to risk his life became unlawful when the officer made the reasonable decision

to wait a few minutes for backup. Officer Struble’s error—apparently—was following prudent

procedures motivated by legitimate safety concerns. The Court’s holding therefore makes no practical

sense. And nothing in the Fourth Amendment, which speaks of reasonableness, compels this arbitrary

line.

The rule that the Court adopts will [**38] do little good going forward. 2 It is unlikely to have any

appreciable effect on the length of future traffic stops. Most officers will learn the prescribed sequence

of events even if they cannot fathom the reason for that requirement. (I would love to be the proverbial

fly on the wall when police instructors teach this rule to officers who make traffic stops.)

2

It is important to note that the Court’s decision does not affect procedures routinely carried out during traffic stops, including

“checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s

registration and proof of insurance.” Ante, at 6. And the Court reaffirms that police “may conduct certain unrelated checks during an

otherwise lawful traffic stop.” Ibid. Thus, it remains true that police may ask questions aimed at uncovering other criminal conduct and

may order occupants out of their car during a valid stop. See Arizona v. Johnson, 555 U. S. 323, 333, 129 S. Ct. 781, 172 L. Ed. 2d 694

(2009); Maryland v. Wilson, 519 U. S. 408, 414-415, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997); Pennsylvania v. Mimms, 434 U. S. 106,

111, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) (per curiam).

Page 15 of 16

191 L. Ed. 2d 492, *510; 2015 U.S. LEXIS 2807, **38

For these reasons and those set out in JUSTICE THOMAS’s opinion, I respectfully dissent.

Page 16 of 16

Ohio v. Robinette

Supreme Court of the United States

October 8, 1996, Argued ; November 18, 1996, Decided

No. 95-891.

Reporter

519 U.S. 33; 117 S. Ct. 417; 136 L. Ed. 2d 347; 1996 U.S. LEXIS 6971; 65 U.S.L.W. 4013; 148 A.L.R. Fed.

739; 96 Cal. Daily Op. Service 8278; 96 Daily Journal DAR 13761; 10 Fla. L. Weekly Fed. S 200

OHIO, PETITIONER v. ROBERT D. ROBINETTE

Prior History: ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO.

State v. Robinette, 73 Ohio St. 3d 650, 1995 Ohio 162, 653 N.E.2d 695, 1995 Ohio LEXIS 1872 (1995)

Disposition: 73 Ohio St. 3d 650, 653 N. E. 2d 695, reversed.

Case Summary

Procedural Posture

A writ of certiorari was granted to the Supreme Court of Ohio upon the question of whether the Fourth

Amendment required that a lawfully seized defendant must be advised that he was ″free to go″ before

his consent to search would be recognized as voluntary.

Overview

Police stopped defendant for speeding, and defendant was issued a verbal warning. The officer then

asked whether defendant was carrying illegal contraband, to which defendant answered ″no.″

Subsequently, defendant consented to a search of the car, and drugs were discovered. Defendant was

charged with knowing possession of drugs. The state supreme court held that any attempt by the police

at casual interrogation had to be proceeded by the phrase ″At this time you are legally free to go.″

Initially, the United States Supreme Court decided that it had jurisdiction to review the state court

decision because the opinion clearly relied on federal law. The Court held that the officer was

objectively justified in asking defendant to get out of the car, subjective thoughts notwithstanding. The

Court found that the touchstone inquiry was reasonableness measured in objective terms by examining

the totality of the circumstances. The Court concluded that it would be unrealistic to require police

officers to always inform detainees that they were free to go before consent to a search could be

deemed voluntary. Voluntariness was a fact question to be determined from all the circumstances.

Outcome

The Court reversed the judgment of the state supreme court and remanded the cause for further

proceedings.

Syllabus

After an Ohio deputy sheriff stopped respondent Robinette for speeding, gave him a verbal warning,

and returned his driver’s license, the deputy asked whether he was carrying illegal contraband,

519 U.S. 33, *33; 117 S. Ct. 417, **417; 136 L. Ed. 2d 347, ***347

weapons, or drugs in his car. Robinette answered ″no″ and consented to a search of the car, which

revealed a small amount of marijuana and a pill. He was arrested and later charged with knowing

possession of a controlled substance when the pill turned out to be methylenedioxy-methamphetamine.

Following denial of his pretrial suppression motion, he was found guilty, but the Ohio Court of Appeals

reversed on the ground that the search resulted from an unlawful detention. The State Supreme Court

affirmed, establishing as a bright-line prerequisite for consensual interrogation under these circumstances

the requirement that an officer clearly state when a citizen validly detained for a traffic offense is

″legally free to go.″

Held:

1. This Court has jurisdiction to review the Ohio Supreme Court’s decision. The contention that

jurisdiction is lacking because the Ohio decision rested in part upon the State Constitution is rejected

under Michigan v. Long, 463 U.S. 1032, 1040-1041, 77 L. Ed. 2d 1201, 103 S. Ct. 3469. Although the

opinion below mentions the Ohio Constitution in passing, it clearly relies on federal law, discussing

and citing federal cases almost exclusively. It is not dispositive that those citations appear only in the

opinion and not in the official syllabus. Under Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.

562, 566, 53 L. Ed. 2d 965, 97 S. Ct. 2849, it is permissible to turn to an Ohio opinion’s body when

the syllabus speaks only in general terms of ″the federal and Ohio Constitutions.″ Nor is the Court’s

jurisdiction defeated by the additional holding below that continuing detention of a person stopped for

a traffic violation constitutes an illegal seizure when the officer’s motivation for continuing is not

related to the purpose of the original, constitutional stop and there are no articulable facts giving rise

to a suspicion of some separate illegal activity. Under Whren v. United States, 517 U.S. 806, 813, 135

L. Ed. 2d 89, 116 S. Ct. 1769, the officer’s subjective intentions do not make continued detention

illegal, so long as the detention is justified by the circumstances viewed objectively. Pp. 36-39.

2. The Fourth Amendment does not require that a lawfully seized defendant be advised that he is ″free

to go″ before his consent to search will be recognized as voluntary. The Amendment’s touchstone is

reasonableness, which is measured in objective terms by examining the totality of the circumstances.

In applying this test, the Court has consistently eschewed bright-line rules, instead emphasizing the

fact-specific nature of the reasonableness inquiry. Indeed, in rejecting a per se rule very similar to one

adopted below, this Court has held that the voluntariness of a consent to search is a question of fact

to be determined from all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248-249, 36 L.

Ed. 2d 854, 93 S. Ct. 2041. The Ohio Supreme Court erred in holding otherwise. It would be unrealistic

to require the police to always inform detainees that they are free to go before a consent to search may

be deemed voluntary. Cf. 412 U.S. at 231. Pp. 39-40.

Counsel: Carley J. Ingram argued the cause for petitioner. With her on the briefs was Mathias H. Heck,

Jr.

Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. On the

brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor

General Dreeben, Paul A. Engelmayer, and Joseph C. Wyderko.

Page 2 of 13

519 U.S. 33, *33; 117 S. Ct. 417, **417; 136 L. Ed. 2d 347, ***347

*

James D. Ruppert argued the cause and filed a brief for respondent.

Judges: REHNQUIST, C. J., delivered the opinion of the Court, in which O’CONNOR, SCALIA,

KENNEDY, SOUTER, THOMAS, and BREYER, JJ., joined. GINSBURG, J., filed an opinion

concurring in the judgment, post, p. 40. STEVENS, J., filed a dissenting opinion, post, p. 45.

Opinion by: REHNQUIST

Opinion

[*35] CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

[1A] [**419] [***352] [*36] We are here presented with the question whether the Fourth Amendment

requires that a lawfully seized defendant must be advised that he is ″free to go″ before his consent to

search will be recognized as voluntary. We hold that it does not.

This case arose on a stretch of Interstate 70 north of Dayton, Ohio, where the posted speed limit was

45 miles per hour because of construction. Respondent Robert D. Robinette was clocked at 69 miles

per hour as he drove his car along this stretch of road, and was stopped by Deputy Roger Newsome

of the Montgomery County Sheriff’s office. Newsome asked for and was handed Robinette’s driver’s

license, and he ran a computer check which indicated that Robinette had no previous violations.

Newsome then asked Robinette to step out of his car, turned on his mounted video camera, issued a

verbal warning to Robinette, and returned his license.

At this point, Newsome asked, ″One question before you get gone: Are you carrying any illegal

contraband in your car? Any weapons of any kind, drugs, anything like that?″ App. to Brief for

Respondent 2 (internal quotation marks omitted). Robinette answered ″no″ to these questions, after

which Deputy Newsome asked if he could search the car. Robinette consented. In the car, Deputy

Newsome discovered a small amount of marijuana and, in a film container, a pill which was later

determined to be methylenedioxymethamphetamine (MDMA). Robinette was then arrested and

charged with knowing possession of a controlled substance, MDMA, in violation of Ohio Rev. Code

Ann. § 2925.11(A) (1993).

*

Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Betty D. Montgomery, Attorney General of Ohio,

Jeffrey S. Sutton, State Solicitor, and Simon B. Karas, and by the Attorneys General for their respective States as follows: Jeff Sessions

of Alabama, Daniel E. Lungren of California, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert Butterworth of Florida,

Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Jim Ryan of Illinois, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky,

Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts,

Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jospeh P. Mazurek of Montana, Don

Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Deborah T. Poritz of New Jersey, Dennis

C. Vacco of New York, Michael F. Easley of North Carolina, W. A. Drew Edmondson of Oklahoma, Theodore Kulongoski of Oregon,

Thomas W. Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Mark Bennett of South Dakota, Charles W. Bursen of

Tennessee, Dan Morales of Texas, Jeffrey L. Amestoy of Vermont, James S. Gilmore III of Virginia, Darrell V. McGraw, Jr., of West

Virginia, James E. Doyle of Wisconsin, and William U. Hill of Wyoming; and for Americans for Effective Law Enforcement, Inc., by

Fred E. Inbau, Wayne W. Schmidt, James P. Manak, and Bernard J. Farber.

Tracey Maclin, Steven R. Shapiro, and Jeffrey M. Gamso filed a brief for the American Civil Liberties Union et al. as amici curiae urging

affirmance.

Briefs of amicus curiae were filed for the National Association of Criminal Defense Lawyers by Sheryl Gordon McCloud; and for the

Ohio Association of Criminal Defense Lawyers by W. Andrew Hasselbach.

Page 3 of 13

519 U.S. 33, *36; 117 S. Ct. 417, **419; 136 L. Ed. 2d 347, ***352

Before trial, Robinette unsuccessfully sought to suppress this evidence. He then pleaded ″no contest,″

and was found guilty. On appeal, the Ohio Court of Appeals reversed, ruling that the search resulted

from an unlawful detention. The Supreme Court of Ohio, by a divided vote, affirmed. 73 Ohio St. 3d

650, 653 N.E.2d 695 (1995). In its opinion, that court established a bright-line prerequisite for

consensual interrogation under these circumstances:

[***353] ″The right, guaranteed by the federal and Ohio Constitutions, to be secure in one’s person

and property requires that citizens stopped for traffic offenses be clearly informed by the detaining

officer when they [**420] are free to go after a valid detention, before an officer attempts to

engage in a consensual interrogation. Any attempt at consensual interrogation must be preceded by

the phrase ’At this time you legally are free to go’ or by words of similar import.″ 73 Ohio St. 3d

at 650-651, 653 N.E.2d at 696.

We granted certiorari, 516 U.S. 1157 (1996), to review this per se rule, and we now reverse.

[2A] [3]We must first consider whether we have jurisdiction to review the Ohio Supreme Court’s

decision. Respondent contends that we lack such jurisdiction because the Ohio decision rested upon

the Ohio Constitution, in addition to the [*37] Federal Constitution. Under Michigan v. Long, 463 U.S.

1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983), when ″a state court decision fairly appears to rest

primarily on federal law, or to be interwoven with the federal law, and when the adequacy and

independence of any possible state law ground is not clear from the face of the opinion, we will accept

as the most reasonable explanation that the state court decided the case the way it did because it

believed that federal law required it to do so.″ * 463 U.S. at 1040-1041. Although the opinion below

mentions Art. I, § 14, of the Ohio Constitution in passing (a section which reads identically to the

Fourth Amendment), the opinion clearly relies on federal law nevertheless. Indeed, the only cases it

discusses or even cites are federal cases, except for one state case which itself applies the Federal

Constitution.

[2B] [4]Our jurisdiction is not defeated by the fact that these citations appear in the body of the

opinion, while, under Ohio law, ″[the] Supreme Court speaks as a court only through the syllabi of its

cases.″ See Ohio v. Gallagher, 425 U.S. 257, 259, 47 L. Ed. 2d 722, 96 S. Ct. 1438 (1976). When the

syllabus, as here, speaks only in general terms of ″the federal and Ohio Constitutions,″ it is permissible

for us to turn to the body of the opinion to discern the grounds for decision. Zacchini v.

Scripps-Howard Broadcasting Co., 433 U.S. 562, 566, 53 L. Ed. 2d 965, 97 S. Ct. 2849 (1977).

[5]Respondent Robinette also contends that we may not reach the question presented in the petition

because the Supreme Court of Ohio also held, as set out in the syllabus paragraph (1):

″When the motivation behind a police officer’s continued detention of a person stopped for a traffic

violation is not related to the purpose of the original, constitutional stop, and when that continued

detention is not based on any articulable facts giving rise to a suspicion of some [*38] separate

illegal activity justifying an extension of the detention, the continued detention constitutes an

illegal seizure.″ 73 Ohio St. 3d at 650, 653 N.E.2d at 696.

*

Respondent and his amici ask us to take this opportunity to depart from Michigan v. Long. We are no more persuaded by this argument

now than we were two Terms ago, see Arizona v. Evans, 514 U.S. 1, 131 L. Ed. 2d 34, 115 S. Ct. 1185 (1995), and we again reaffirm

the Long presumption.

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In reliance on this ground, the Supreme Court of Ohio held that when [***354] Newsome returned

to Robinette’s car and asked him to get out of the car, after he had determined in his own mind not

to give Robinette a ticket, the detention then became unlawful.

Respondent failed to make any such argument in his brief in opposition to certiorari. See this Court’s

Rule 15.2. We believe the issue as to the continuing legality of the detention is a ″predicate to an

intelligent resolution″ of the question presented, and therefore ″fairly included therein.″ This Court’s

Rule 14.1(a); Vance v. Terrazas, 444 U.S. 252, 258-259, n. 5, 62 L. Ed. 2d 461, 100 S. Ct. 540 (1980).

The parties have briefed this issue, and we proceed to decide it.

[6] [7]We think that under our recent decision in Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d

89, 116 S. Ct. 1769 (1996) (decided after the Supreme Court of Ohio decided the present case), the

subjective intentions of the officer did not make the continued detention of respondent illegal under the

Fourth Amendment. As we made clear in Whren, ″’the fact that [an] officer does not have the state of

mind which is hypothecated by the reasons which provide the legal [**421] justification for the

officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively,

justify that action.’ . . . Subjective intentions play no role in ordinary, probable cause Fourth

Amendment analysis.″ 517 U.S. at 813 (quoting Scott v. United States, 436 U.S. 128, 138, 56 L. Ed.

2d 168, 98 S. Ct. 1717 (1978)). And there is no question that, in light of the admitted probable cause

to stop Robinette for speeding, Deputy Newsome was objectively justified in asking Robinette to get

out of the car, subjective thoughts notwithstanding. See Pennsylvania v. Mimms, 434 U.S. 106, 111, n.

6, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977) (″We hold . . . that once a motor vehicle has been lawfully

detained for a traffic violation, the police officers may order the driver to get out [*39] of the vehicle

without violating the Fourth Amendment’s proscription of unreasonable searches and seizures″).

[8]We now turn to the merits of the question presented. We have long held that the ″touchstone of the

Fourth Amendment is reasonableness.″ Florida v. Jimeno, 500 U.S. 248, 250, 114 L. Ed. 2d 297, 111

S. Ct. 1801 (1991). Reasonableness, in turn, is measured in objective terms by examining the totality

of the circumstances.

In applying this test we have consistently eschewed bright-line rules, instead emphasizing the

fact-specific nature of the reasonableness inquiry. Thus, in Florida v. Royer, 460 U.S. 491, 75 L. Ed.

2d 229, 103 S. Ct. 1319 (1983), we expressly disavowed any ″litmuspaper test″ or single ″sentence or

. . . paragraph . . . rule,″ in recognition of the ″endless variations in the facts and circumstances″

implicating the Fourth Amendment. 460 U.S. at 506. Then, in Michigan v. Chesternut, 486 U.S. 567,

100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988), when both parties urged ″bright-line rule[s] applicable to

all investigatory pursuits,″ we rejected both proposed rules as contrary to our ″traditional contextual

approach.″ 486 U.S. at 572-573. And again, in Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 111

S. Ct. 2382 (1991), when the Florida Supreme Court adopted a per se rule that questioning aboard a

bus always constitutes a seizure, we reversed, reiterating that the proper inquiry necessitates a

consideration of ″all the circumstances surrounding [***355] the encounter.″ Id., at 439.

[1B]We have previously rejected a per se rule very similar to that adopted by the Supreme Court of

Ohio in determining the validity of a consent to search. In Schneckloth v. Bustamonte, 412 U.S. 218,

36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973), it was argued that such a consent could not be valid unless

the defendant knew that he had a right to refuse the request. We rejected this argument: ″While

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knowledge of the right to refuse consent is one factor to be taken into account, the government need

not establish such knowledge as the sine qua non of an effective consent.″ Id., at 227. And just as it

″would be thoroughly impractical to impose on the normal consent search the detailed requirements

of an effective warning,″ id., at 231, so too would it be [*40] unrealistic to require police officers to

always inform detainees that they are free to go before a consent to search may be deemed voluntary.

The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and

″voluntariness is a question of fact to be determined from all the circumstances,″ 500 U.S. at 248-249.

The Supreme Court of Ohio having held otherwise, its judgment is reversed, and the case is remanded

for further proceedings not inconsistent with this opinion.

It is so ordered.

Concur by: GINSBURG

Concur

JUSTICE GINSBURG, concurring in the judgment.

Robert Robinette’s traffic stop for a speeding violation on an interstate highway in Ohio served as

prelude to a search of his automobile for illegal drugs. Robinette’s experience was not uncommon in

Ohio. As the Ohio Supreme Court related, the sheriff’s deputy who detained Robinette for speeding

and then asked Robinette for permission to search his vehicle ″was on drug interdiction patrol at the

time.″ 73 Ohio St. 3d 650, 651, [**422] 653 N.E.2d 695, 696 (1995). The deputy testified in

Robinette’s case that he routinely requested permission to search automobiles he stopped for traffic

violations. Ibid. According to the deputy’s testimony in another prosecution, he requested consent to

search in 786 traffic stops in 1992, the year of Robinette’s arrest. State v. Retherford, 93 Ohio App. 3d

586, 594, n. 3, 639 N.E.2d 498, 503, n. 3, dism’d, 69 Ohio St. 3d 1488, 635 N.E.2d 43 (1994).

From their unique vantage point, Ohio’s courts observed that traffic stops in the State were regularly

giving way to contraband searches, characterized as consensual, even when officers had no reason to

suspect illegal activity. One Ohio appellate court noted: ″Hundreds, and perhaps thousands of Ohio

citizens are being routinely delayed in their travels and asked to relinquish to uniformed police officers

their [*41] right to privacy in their automobiles and luggage, sometimes for no better reason than to

provide an officer the opportunity to ’practice’ his drug interdiction technique.″ 93 Ohio App. 3d at

594, 639 N.E.2d at 503 (footnote omitted).

Against this background, the Ohio Supreme Court determined, and announced in Robinette’s case, that

the federal and state constitutional rights of Ohio citizens to be secure in [***356] their persons and

property called for the protection of a clear-cut instruction to the State’s police officers: An officer

wishing to engage in consensual interrogation of a motorist at the conclusion of a traffic stop must first

tell the motorist that he or she is free to go. The Ohio Supreme Court described the need for its

first-tell-then-ask rule this way:

″The transition between detention and a consensual exchange can be so seamless that the untrained

eye may not notice that it has occurred. . . .

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....

″Most people believe that they are validly in a police officer’s custody as long as the officer

continues to interrogate them. The police officer retains the upper hand and the accouterments of

authority. That the officer lacks legal license to continue to detain them is unknown to most

citizens, and a reasonable person would not feel free to walk away as the officer continues to

address him.

....

″While the legality of consensual encounters between police and citizens should be preserved, we

do not believe that this legality should be used by police officers to turn a routine traffic stop into

a fishing expedition for unrelated criminal activity. The Fourth Amendment to the federal

Constitution and Section 14, Article I of the Ohio Constitution exist to protect citizens against such

an unreasonable interference with their liberty.″ 73 Ohio St. 3d at 654-655, 653 N.E.2d at 698-699.

[*42] Today’s opinion reversing the decision of the Ohio Supreme Court does not pass judgment on

the wisdom of the first-tell-then-ask rule. This Court’s opinion simply clarifies that the Ohio Supreme

Court’s instruction to police officers in Ohio is not, under this Court’s controlling jurisprudence, the

command of the Federal Constitution. See ante, at 39-40. The Ohio Supreme Court invoked both the

Federal Constitution and the Ohio Constitution without clearly indicating whether state law, standing

alone, independently justified the court’s rule. The ambiguity in the Ohio Supreme Court’s decision

renders this Court’s exercise of jurisdiction proper under Michigan v. Long, 463 U.S. 1032, 1040-1042,

77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983), and this Court’s decision on the merits is consistent with

the Court’s ″totality of the circumstances″ Fourth Amendment precedents, see ante, at 39. I therefore

concur in the Court’s judgment.

I write separately, however, because it seems to me improbable that the Ohio Supreme Court

understood its first-tell-then-ask rule to be the Federal Constitution’s mandate for the Nation as a

whole. ″[A] State is free as a matter of its own law to impose greater restrictions on police activity than

those this Court holds to be necessary upon federal constitutional standards.″ Oregon v. Hass, 420 U.S.

714, 719, [**423] 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975). * But ordinarily, when a state high court

grounds a rule of criminal procedure in the Federal Constitution, the [*43] court thereby signals its

view that the Nation’s Constitution [***357] would require the rule in all 50 States. Given this Court’s

decisions in consent-to-search cases such as Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d

854, 93 S. Ct. 2041 (1973), and Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 111 S. Ct. 2382

(1991), however, I suspect that the Ohio Supreme Court may not have homed in on the implication

ordinarily to be drawn from a state court’s reliance on the Federal Constitution. In other words, I

question whether the Ohio court thought of the strict rule it announced as a rule for the governance of

police conduct not only in Miami County, Ohio, but also in Miami, Florida.

The first-tell-then-ask rule seems to be a prophylactic measure not so much extracted from the text of

any constitutional provision as crafted by the Ohio Supreme Court to reduce the number of violations

*

Formerly, the Ohio Supreme Court was ″reluctant to use the Ohio Constitution to extend greater protection to the rights and civil

liberties of Ohio citizens″ and had usually not taken advantage of opportunities to ″use the Ohio Constitution as an independent source

of constitutional rights.″ Arnold v. Cleveland, 67 Ohio St. 3d 35, 42, n. 8, 616 N.E.2d 163, 168, n. 8 (1993). Recently, however, the state

high court declared: ″The Ohio Constitution is a document of independent force. . . . As long as state courts provide at least as much

protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted

in according greater civil liberties and protections to individuals and groups.″ Id., at 35, 616 N.E.2d at 164 (syllabus).

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of textually guaranteed rights. In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602

(1966), this Court announced a similarly motivated rule as a minimal national requirement without

suggesting that the text of the Federal Constitution required the precise measures the Court’s opinion

set forth. See id., at 467 (″The Constitution [does not] necessarily requir[e] adherence to any particular

solution″ to the problems associated with custodial interrogations.); see also Oregon v. Elstad, 470 U.S.

298, 306, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985) (″The Miranda exclusionary rule . . . sweeps more

broadly than the Fifth Amendment itself.″). Although all parts of the United States fall within this

Court’s domain, the Ohio Supreme Court is not similarly situated. That court can declare prophylactic

rules governing the conduct of officials in Ohio, but it cannot command the police forces of sister

States. The very ease with which the Court today disposes of the federal leg of the Ohio Supreme

Court’s decision strengthens my impression that the Ohio Supreme Court saw its rule as a measure

made for Ohio, designed to reinforce in that State the right of the people to be secure against

unreasonable searches and seizures.

[*44] The Ohio Supreme Court’s syllabus and opinion, however, were ambiguous. Under Long, the

existence of ambiguity regarding the federal- or state-law basis of a state-court decision will trigger this

Court’s jurisdiction. Long governs even when, all things considered, the more plausible reading of the

state court’s decision may be that the state court did not regard the Federal Constitution alone as a

sufficient basis for its ruling. Compare Arizona v. Evans, 514 U.S. 1, 7-9, 131 L. Ed. 2d 34, 115 S. Ct.

1185 (1995), with id., at 31-33 (GINSBURG, J., dissenting).

It is incumbent on a state court, therefore, when it determines that its State’s laws call for protection

more complete than the Federal Constitution demands, to be clear about its ultimate reliance on state

law. Similarly, a state court announcing a new legal rule arguably derived from both federal and state

law can definitively render state law an adequate and independent ground for its decision by a simple

declaration to that effect. A recent Montana Supreme [***358] Court opinion on the scope of an

individual’s privilege against self-incrimination includes such a declaration:

″While we have devoted considerable time to a lengthy discussion of the application of the Fifth

Amendment to the United States Constitution, it is to be noted that this holding is also based

separately and independently on [the defendant’s] right to remain silent pursuant to Article II,

Section [**424] 25 of the Montana Constitution.″ State v. Fuller, 276 Mont. 155, 167, 915 P.2d

809, 816, cert. denied, post, p. 930.

An explanation of this order meets the Court’s instruction in Long that ″if the state court decision

indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and

independent grounds, [this Court] will not undertake to review the decision.″ 463 U.S. at 1041.

On remand, the Ohio Supreme Court may choose to clarify that its instructions to law enforcement

officers in Ohio find [*45] adequate and independent support in state law, and that in issuing these

instructions, the court endeavored to state dispositively only the law applicable in Ohio. See Evans,

514 U.S. at 30-34 (GINSBURG, J., dissenting). To avoid misunderstanding, the Ohio Supreme Court

must itself speak with the clarity it sought to require of its State’s police officers. The efficacy of its

endeavor to safeguard the liberties of Ohioans without disarming the State’s police can then be tested

in the precise way Our Federalism was designed to work. See, e. g., Kaye, State Courts at the Dawn

of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N. Y. U. L. Rev. 1,

Page 8 of 13

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11-18 (1995); Linde, First Things First: Rediscovering the States’ Bills of Rights, 9 U. Balt. L. Rev.

379, 392-396 (1980).

Dissent by: STEVENS

Dissent

JUSTICE STEVENS, dissenting.

The Court’s holding today is narrow: The Federal Constitution does not require that a lawfully seized

person be advised that he is ″free to go″ before his consent to search will be recognized as voluntary.

I agree with that holding. Given the Court’s reading of the opinion of the Supreme Court of Ohio, I

also agree that it is appropriate for the Court to limit its review to answering the sole question presented

in the State’s certiorari petition. 1 As I read the state-court opinion, however, the prophylactic rule

announced in the second syllabus was intended as a guide to the decision of future cases rather than

an explanation of the decision in this case. I would therefore affirm the judgment of the Supreme Court

of Ohio because it correctly held that respondent’s consent to the search of his vehicle was the product

of an unlawful detention. Moreover, it is important [*46] to emphasize that nothing in the Federal

Constitution--or in this Court’s opinion--prevents a State from requiring its law enforcement officers

to give detained motorists the advice mandated by the Ohio court.

[***359] I

The relevant facts are undisputed. 2 Officer Newsome stopped respondent because he was speeding.

Neither at the time of the stop nor at any later time prior to the search of respondent’s vehicle did the

officer have any basis for believing that there were drugs in the car. After ordering respondent to get

out of his car, issuing a warning, and returning his driver’s license, Newsome took no further action

related to the speeding violation. He did, however, state: ″One question before you get gone: are you

carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?″

Thereafter, he obtained respondent’s consent to search the car.

These facts give rise to two questions of law: whether respondent was still being detained when the

″one question″ was asked, and, if so, whether that detention was unlawful. In my opinion the Ohio

Appellate Court and the Ohio Supreme Court correctly answered both of those questions.

The Ohio Supreme Court correctly relied upon United States v. Mendenhall, 446 U.S. 544, 64 L. Ed.

2d 497, 100 S. Ct. 1870 (1980), 3 which stated that ″a person has been ’seized’ within the meaning of

the Fourth Amendment [**425] . . . if, in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave.″ Id., at 554 (opinion of Stewart,

J.); see Michigan v. Chesternut, 486 U.S. 567, 573, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988) (noting

that ″the Court has since embraced this test″). See also Florida v. Bostick, 501 U.S. 429, 435-436, 115

1

″Whether the Fourth Amendment to the United States Constitution requires police officers to inform motorists, lawfully stopped

for traffic violations, that the legal detention has concluded before any subsequent interrogation or search will be found to be

consensual?″ Pet. for Cert. i.

2

This is in part because crucial portions of the exchange were videotaped; this recording is a part of the record.

3

See 73 Ohio St. 3d 650, 654, 653 N.E.2d 695, 698 (1995).

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L. Ed. 2d 389, 111 S. Ct. 2382 (1991) (applying variant of this approach). The Ohio Court [*47] of

Appeals applied a similar analysis. See App. to Pet. for Cert. 17-18.

Several circumstances support the Ohio courts’ conclusion that a reasonable motorist in respondent’s

shoes would have believed that he had an obligation to answer the ″one question″ and that he could

not simply walk away from the officer, get back in his car, and drive away. The question itself sought

an answer ″before you get gone.″ In addition, the facts that respondent had been detained, had received

no advice that he was free to leave, and was then standing in front of a television camera in response

to an official command are all inconsistent with an assumption that he could reasonably believe that

he had no duty to respond. The Ohio Supreme Court was surely correct in stating: ″Most people believe

that they are validly in a police officer’s custody as long as the officer continues to interrogate them.

The police officer retains the upper hand and the accouterments of authority. That the officer lacks

legal license to continue to detain them is unknown to most citizens, and a reasonable person would

not feel free to walk away as the officer continues to address him.″ 73 Ohio St. 3d at 655, 653 N.E.2d

at 698. 4

Moreover, as an objective matter it [***360] is fair to presume that most drivers who have been

stopped for speeding are in a hurry to get to their destinations; such drivers have no interest in

prolonging the delay occasioned by the stop just to engage in idle conversation with an officer, much

less to allow [*48] a potentially lengthy search. 5 I also assume that motorists--even those who are

not carrying contraband--have an interest in preserving the privacy of their vehicles and possessions

from the prying eyes of a curious stranger. The fact that this particular officer successfully used a

similar method of obtaining consent to search roughly 786 times in one year, State v. Retherford, 93

Ohio App. 3d 586, 591-592, 639 N.E.2d 498, 502, dism’d, 69 Ohio St. 3d 1488, 635 N.E.2d 43 (1994),

indicates that motorists generally respond in a manner that is contrary to their self-interest. Repeated

decisions by ordinary citizens to surrender that interest cannot satisfactorily be explained on any

hypothesis other than an assumption that they believed they had a legal duty to do so.

The Ohio Supreme Court was therefore entirely correct to presume in the first syllabus preceding its

opinion that a ″continued detention″ was at issue here. 73 Ohio St. 3d [**426] at 650, 653 N.E.2d at

4

A learned commentator has expressed agreement on this point. See 4 W. LaFave, Search and Seizure § 9.3(a), p. 112 (3d ed. 1996

and Supp. 1997) (″Given the fact that [defendant] quite clearly had been seized when his car was pulled over, the return of the credentials

hardly manifests a change in status when it was immediately followed by interrogation concerning other criminal activity″); see also ibid.

(approving of Ohio Supreme Court’s analysis in this case). We have indicated as much ourselves in the past. See Berkemer v. McCarty,

468 U.S. 420, 436, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984) (″Certainly few motorists would feel free either to disobey a directive to

pull over or to leave the scene of a traffic stop without being told they might do so″).

5

Though this search does not appear to have been particularly intrusive, that may not always be so. See Brief for American Civil

Liberties Union et al. as Amici Curiae 28-29. Indeed, our holding in Florida v. Jimeno, 500 U.S. 248, 114 L. Ed. 2d 297, 111 S. Ct. 1801

(1991), allowing police to open closed containers in the context of an automobile consent search where the ″consent would reasonably

be understood to extend to a particular container,″ id., at 252, ensures that many motorists will wind up ″consenting″ to a far broader

search than they might have imagined. See 500 U.S. at 254-255 (″only objection that the police could have to″ a rule requiring police

to seek consent to search containers as well as the automobile itself ″is that it would prevent them from exploiting the ignorance of a

citizen who simply did not anticipate that his consent to search the car would be understood to authorize the police to rummage through

his packages″) (Marshall, J., dissenting).

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696. 6 The Ohio Court of Appeals reached a similar conclusion. In response to the State’s contention

[*49] that Robinette ″was free to go″ at the time consent was sought, that court held--after reviewing

the record--that ″a reasonable person in Robinette’s position would not believe that the investigative

stop had been concluded, and that he or she was free to go, so long as the police officer was continuing

to ask investigative questions.″ App. to Pet. for Cert. 17-18. As I read the Ohio opinions, these

determinations were independent of the bright-line rule criticized by the majority. 7 I see no reason to

disturb them.

In the first syllabus, the Ohio Supreme [***361] Court also answered the question whether the

officer’s continued detention of respondent was lawful or unlawful. See ante, at 37-38. Although there

is a possible ambiguity in the use of the word ″motivation″ in the Ohio Supreme Court’s explanation

of why the traffic officer’s continued detention of respondent was an illegal seizure, the first syllabus

otherwise was a correct statement of the relevant federal rule as well as the relevant Ohio rule. As this

Court points out in its opinion, as a matter of federal law the subjective motivation of the officer does

not determine the legality of a detention. Because I assume that the learned judges sitting on the Ohio

Supreme Court were well aware of this proposition, we should construe the syllabus generously by

replacing the ambiguous term ″motivation behind″ with the term ″justification for″ in order to make

the syllabus unambiguously state the correct rule of federal law. So amended, the controlling

proposition of federal law reads:

″When the [justification for] a police officer’s continued detention of a person stopped for a traffic

violation is [*50] not related to the purpose of the original, constitutional stop, and when that

continued detention is not based on any articulable facts giving rise to a suspicion of some separate

illegal activity justifying an extension of the detention, the continued detention constitutes an

illegal seizure.″ 73 Ohio St. 3d at 650, 653 N.E.2d at 696.

Notwithstanding that the subjective motivation for the officer’s decision to stop respondent related to

drug interdiction, the legality of the stop depended entirely on the fact that respondent was speeding.

Of course, ″as a general matter, the decision to stop an automobile is reasonable where the police have

probable cause to believe that a traffic violation has occurred.″ Whren v. United States, 517 U.S. 806,

810, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996). As noted above, however, by the time Robinette was

asked for consent to search his automobile, the lawful traffic stop had come to an end; Robinette had

been given his warning, and the speeding violation provided no further justification for detention. The

continued detention was therefore only justifiable, if at all, on some other grounds. 8

At no time prior to the search of respondent’s vehicle did any articulable facts give rise to a reasonable

suspicion of some separate illegal activity that would justify further detention. See United States v.

6

It is ordinarily the syllabus that precedes an Ohio Supreme Court opinion, rather than the opinion itself, that states the law of the case.

Cassidy v. Glossip, 12 Ohio St. 2d 17, 24, 231 N.E.2d 64, 68 (1967); see Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75,

86, n. 8, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984); Ohio v. Gallagher, 425 U.S. 257, 259, 47 L. Ed. 2d 722, 96 S. Ct. 1438 (1976).

7

Indeed, the first paragraph of the Ohio Supreme Court’s opinion clearly indicates that the bright-line rule was meant to apply only

in future cases. The Ohio Supreme Court first explained: ″We find that the search was invalid since it was the product of an unlawful

seizure.″ 73 Ohio St. 3d at 652, 653 N.E.2d at 697. Only then did the court proceed to point out that it would ″also use this case to

establish a bright-line test . . . .″ Ibid.

8

Cf. Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983) (plurality opinion) (″An investigative detention

must be temporary and last no longer than is necessary to effectuate the purpose of the stop″); United States v. Brignoni-Ponce, 422 U.S.

873, 881, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975) (″stop and inquiry must be ’reasonably related in scope to the justification for their

initiation’″ (quoting Terry v. Ohio, 392 U.S. 1, 29, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)).

Page 11 of 13

519 U.S. 33, *50; 117 S. Ct. 417, **426; 136 L. Ed. 2d 347, ***361

Sharpe, 470 U.S. 675, 682, 84 L. Ed. 2d 605, 105 S. Ct. 1568 [**427] (1985); United States v.

Brignoni-Ponce, 422 U.S. 873, 881-882, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975); Terry v. Ohio, 392

U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). As an objective matter, it inexorably follows that

when the officer had completed his task of either arresting or reprimanding the driver of the speeding

car, his continued detention of that [*51] person constituted an illegal [***362] seizure. This holding

by the Ohio Supreme Court is entirely consistent with federal law. 9

The proper disposition follows as an application of well settled law. We held in Florida v. Royer, 460

U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983), that a consent obtained during an illegal detention

is ordinarily ineffective to justify an otherwise invalid search. 10 See also Florida v. Bostick, 501 U.S.

at 433-434 (noting that if consent was given during the course of an unlawful seizure, the results of

the search ″must be suppressed as tainted fruit″); Dunaway v. New York, 442 U.S. 200, 218-219, 60 L.

Ed. 2d 824, 99 S. Ct. 2248 (1979); Brown v. Illinois, 422 U.S. 590, 601-602, 45 L. Ed. 2d 416, 95 S.

Ct. 2254 (1975). Cf. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).

Because Robinette’s consent to the search was the product of an unlawful detention, ″the consent was

tainted by the illegality and was ineffective to justify the search.″ Royer, 460 U.S. at 507-508 (plurality

opinion). I would therefore affirm the judgment below.

II

A point correctly raised by JUSTICE GINSBURG merits emphasis. The Court’s opinion today does

not address either the wisdom of the rule announced in the second syllabus preceding [*52] the Ohio

Supreme Court’s opinion or the validity of that rule as a matter of Ohio law. Nevertheless the risk that

the narrowness of the Court’s holding may not be fully understood prompts these additional words.

There is no rule of federal law that precludes Ohio from requiring its police officers to give its citizens

warnings that will help them to understand whether a valid traffic stop has come to an end, and will

help judges to decide whether a reasonable person would have felt free to leave under the

circumstances at issue in any given case. 11 Nor, as I have previously observed, is there anything ″in

the Federal Constitution that prohibits a State from giving lawmaking [***363] power to its courts.″

9

Since ″this Court reviews judgments, not opinions,″ Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,

842, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), the Ohio Supreme Court’s holding that Robinette’s continued seizure was illegal on these

grounds provides a sufficient basis for affirming its judgment.

10

Writing for a plurality of the Court, Justice White explained that ″statements given during a period of illegal detention are

inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act of free

will.″ 460 U.S. at 501. The defendant in Royer had been ″illegally detained when he consented to the search.″ 460 U.S. at 507. As a result,

the plurality agreed that ″the consent was tainted by the illegality and was ineffective to justify the search.″ 460 U.S. at 507-508.

Concurring in the result, Justice Brennan agreed with this much of the plurality’s decision, diverging on other grounds. See 460 U.S.

at 509. Justice Brennan’s agreement on that narrow principle represents the holding of the Court. See Marks v. United States, 430 U.S.

188, 193, 51 L. Ed. 2d 260, 97 S. Ct. 990 (1977).

11

Indeed, we indicated in Florida v. Bostick, 501 U.S. 429, 437, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991), that the fact a defendant

had been explicitly advised that he could refuse to give consent was relevant to the question whether he was seized at the time consent

was sought. And, in other cases, we have stressed the importance of similar advice as a circumstance supporting the conclusion that a

consent to search was voluntary. See Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973); United

States v. Mendenhall, 446 U.S. 544, 558-559, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). Cf. Washington v. Chrisman, 455 U.S. 1, 9,

70 L. Ed. 2d 778, 102 S. Ct. 812 (1982) (consent to search was voluntary where defendant ″consented, in writing, . . . after being advised

that his consent must be voluntary and that he had an absolute right to refuse consent″).

Page 12 of 13

519 U.S. 33, *52; 117 S. Ct. 417, **427; 136 L. Ed. 2d 347, ***363

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 479, 66 L. Ed. 2d 659, 101 S. Ct. 715, and n.

3 (1981) (dissenting opinion). Thus, as far as we are [**428] concerned, whether Ohio acts through

one branch of its government or another, it has the same power to enforce a warning rule as other States

that may adopt such rules by executive action. 12

[*53] Moreover, while I recognize that warning rules provide benefits to the law enforcement

profession and the courts, as well as to the public, I agree that it is not our function to pass judgment

on the wisdom of such rules. Accordingly, while I have concluded that the judgment of the Supreme

Court of Ohio should be affirmed, and thus dissent from this Court’s disposition of the case, I am in

full accord with its conclusion that the Federal Constitution neither mandates nor prohibits the

warnings prescribed by the Ohio Court. Whether such a practice should be followed in Ohio is a matter

for Ohio lawmakers to decide.

References

12

As we are informed by a brief amicus curiae filed by Americans For Effective Law Enforcement, Inc.: ″Such a warning may be good

police practice, and indeed amicus knows that many law enforcement agencies among our constituents have routinely incorporated a

warning into their Fourth Amendment consent forms that they use in the field, but it is precisely that--a practice and not a constitutional

imperative. An officer who includes such a warning in his request for consent undoubtedly presents a stronger case for a finding of

voluntariness in a suppression hearing, and we would not suggest that such agencies and officers do otherwise. We know, too, that

instructors in many police training programs of leading universities and management institutes routinely recommend such warnings as

a sound practice, likely to bolster the voluntariness of a consent to search. [We ourselves] conduct law enforcement training programs

at the national level and many of our own speakers have made this very point.″ Brief for Americans For Effective Law Enforcement,

Inc., as Amicus Curiae 7.

Page 13 of 13

Thomas v. State

Court of Appeals of Texas, Seventh District, Amarillo

December 13, 2013, Decided

No. 07-11-00067-CR

Reporter

420 S.W.3d 195; 2013 Tex. App. LEXIS 15092; 2013 WL 6878911

HEATHER THOMAS, APPELLANT v. THE STATE OF TEXAS, APPELLEE

Notice: PUBLISH

Prior History: [**1] On Appeal from the 47th District Court, Potter County, Texas. Trial Court No.

59,706-A, Honorable Dan L. Schaap, Presiding.

Thomas v. State, 408 S.W.3d 877, 2013 Tex. Crim. App. LEXIS 1463 (Tex. Crim. App., 2013)

Case Summary

Overview

HOLDINGS: [1]-The officer had reasonable suspicion to stop defendant’s vehicle where he testified

that he observed the vehicle twice cross over the improved shoulder of the road on the solid white line

in violation of Tex. Transp. Code Ann. § 545.058 (2011); [2]-The officer lacked reasonable suspicion

to continue to detain defendant after the issuance of the warning ticket for driving on the improved

shoulder until a canine search could be performed, and therefore the trial court abused its discretion

by denying defendant’s motion to suppress, because the facts that defendant was nervous driving a

one-way rental car with minimal luggage was insufficient to provide reasonable suspicion.

Outcome

Judgment reversed and case remanded.

Judges: Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Opinion by: Mackey K. Hancock

Opinion

[*196] Appellant, Heather Thomas, appeals her conviction for possession of marijuana1 [*197] and

subsequent sentence of confinement in the Institutional Division of the Texas Department of Criminal

Justice (ID-TDCJ) for 78 months. Appellant contends that the trial court erred in overruling her motion

to suppress the evidence of the search. We will reverse and remand.

Factual and Procedural Background

1

See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(5) (West 2010).

420 S.W.3d 195, *197; 2013 Tex. App. LEXIS 15092, **3

This case is before the Court on remand from the Texas Court of Criminal Appeals. Previously, we held

that appellant had waived her objection to the trial court’s ruling denying her motion to suppress.

Thomas v. State, No. 07-11-00067-CR, 2012 Tex. App. LEXIS 7414, at *5 (Tex. App.—Amarillo Aug.

30, 2012, rev’d) (mem. op., not designated for publication). Subsequently, the Texas Court of Criminal

Appeals reversed this Court’s judgment and remanded the case to this Court to consider appellant’s

points on appeal. Thomas v. State, 408 S.W.3d 877, 888 (Tex. Crim. App. 2013). [**2] We will now

consider appellant’s issues.

Appellant was stopped by Texas Department of Public Safety Highway Patrolman Enoi Phoutthavong

on March 29, 2010, while travelling east on Interstate Highway 40 in Potter County, Texas.

Phoutthavong testified that he observed appellant’s vehicle cross over the solid white line on the

shoulder of the highway, referred to as the fog line, on two occasions before deciding to stop appellant.

Upon stopping appellant, Phoutthavong noticed that, in his opinion, appellant was extremely nervous.

Phoutthavong stated that appellant’s hands were visibly shaking when she retrieved her license.

Phoutthavong stated that the fact that the car was a one-way rental coming from Phoenix, Arizona, also

aroused his suspicion. Additionally, appellant had very little in the way of luggage with her and what

she had was in the rear passenger compartment. However, from the food wrappers and containers that

could be observed in the front passenger compartment of the vehicle, it was obvious that appellant had

eaten while travelling in the car. After making the above observations, Phoutthavong decided to give

appellant a warning ticket. The warning ticket was presented to [**3] appellant before Phoutthavong

broached the subject of inspection of the trunk of appellant’s vehicle.

Phoutthavong requested permission to search the trunk compartment of the car, and appellant refused

to give permission. Following this exchange, Phoutthavong called for the assistance of a DPS drug

canine unit. According to the testimony at the motion to suppress, the canine unit arrived within a

matter of minutes of the request. After the canine unit arrived, the drug dog alerted to the presence of

drugs in the trunk of the car. Upon opening the trunk, the contraband, 227.32 pounds of marijuana, was

found beneath a blanket.

Appellant filed a motion to suppress the contraband discovered in the trunk of the car she was driving.

The trial court heard the motion to suppress and overruled the same. After the trial court overruled the

motion to suppress, appellant entered a plea of guilty to the indictment charging possession of

marijuana in an amount of less than 2000 pounds but more than 50 pounds. The trial court sentenced

appellant to confinement in the ID-TDCJ for seventy-eight months and levied a fine of $2,500.

The trial court issued findings of fact and conclusions of law in support [**4] of its decision to deny

the motion to suppress. The findings of fact were as follows:

1. Trooper Enoi Phoutthavong on March 29, 2009 was on patrol in a marked patrol car on I-40 at

approximately 5:26 p.m. Trooper Phoutthavong has been with the Department of Public Safety for

six years and has had substantial [*198] experience and training in the interdiction of controlled

substances along I-40.

2. Trooper Phoutthavong was traveling eastbound on I-40 when he observed the defendant’s

vehicle cross across the solid white line (also known as the fog line) on two occasions near the

Bushland overpass.

Page 2 of 9

420 S.W.3d 195, *198; 2013 Tex. App. LEXIS 15092, **4

3. Trooper Phoutthavong reasonably believed he ha[d] observed a violation of Driving on

Improved Shoulder (TEX. TRANS[P]. CODE § 545.058).

4. The defendant was stopped at 5:27:51 p.m. in Potter County, Texas.

5. Trooper Phoutthavong contacted the defendant and determined that the vehicle was a one-way

rental, the defendant was exceptionally nervous, had only stayed in the Phoenix area for a day or

two and she claimed that the only luggage she had was a small back pack which was on the rear

seat.

6. After checking the defendant’s driver’s license and criminal history Trooper Phoutthavong

prepared a warning [**5] citation. Trooper Phoutthavong issued the warning citation to the

defendant at 5:35:18 p.m. Trooper Phoutthavong determined that the defendant had flown in from

Massachusetts to Arizona and rented the vehicle on the same day, two days before the stop. The

defendant’s explanation of her trip did not seem logical to the Trooper.

7. Based on Trooper Phoutthavong’s prior experience and his training the Trooper reasonably

believed [that] criminal activity was occurring.

8. Trooper Phoutthavong requested consent to search the vehicle at 5:36 p.m. which the defendant

refused.

9. Trooper Phoutthavong immediately sought the assistance of a K-9 unit.

10. The K-9 unit arrived a[t] the scene at 5:41:10 p.m., approximately five minutes after being

requested.

11. The K-9 alerted on [the] vehicle at 5:44 p.m. and a search was then conducted on the vehicle.

12. At 5:45:20 p.m. 227 pounds of Marihuana were located in the trunk of the vehicle and the

defendant was arrested.

13. The length of the detention (about 17 minutes) was reasonable under the circumstance.

14. The Court finds that Trooper Enoi Phoutthavong was a reliable and credible witness. The Court

further finds that he articulated specific facts [**6] that, under the circumstances that existed during

the stop, would have caused a reasonable officer with similar training and experience to believe

that criminal activity was occurring in his presence.

Based upon these findings of fact, the trial court then entered conclusions of law as follows:

1. Trooper Phoutthavong was authorized to stop and detain the defendant because he had observed

her commit the offense of Driving on Improved Shoulder. (citations omitted).

2. Trooper Phoutthavong took only reasonable and necessary steps in conducting the traffic stop.

(citations omitted)

3. His observations of the defendant and the vehicle combined with the defendant’s explanation of

her travels and the nature of the rental agreement provided sufficient objective facts upon which

Trooper Phoutthavong based a reasonable belief that criminal activity was occurring. (citations

omitted)

4. The defendant’s sole objection contained in her Motion to Suppress is without merit. Given the

totality of the circumstances the initial stop was justified and reasonable. Further, the detention

[*199] was proper and lawful. (citations omitted)

Page 3 of 9

420 S.W.3d 195, *199; 2013 Tex. App. LEXIS 15092, **6

Appellant filed a notice of appeal and now appeals the trial court’s judgment [**7] in three issues.

Appellant’s first issue contends that the failure of the record to produce the videotape of the stop

required this Court to abate the appeal back to the trial court because the videotape was necessary for

proper resolution of the case. The videotape was in fact produced and is a part of this record; therefore,

appellant’s first issue is moot. Appellant’s second and third issues present the questions of the validity

of the initial stop (issue two) and the propriety of appellant’s continued detention after the issuance of

the warning ticket. We will address them in turn.

Motion to Suppress

Standard of Review

We review a trial court’s ruling on a motion to suppress for abuse of discretion. See Oles v. State, 993

S.W.2d 103, 106 (Tex. Crim. App. 1999). The trial court is the sole judge of the credibility of the

witnesses and the weight to be given their testimony. See State v. Ross, 32 S.W.3d 853, 855-56 (Tex.

Crim. App. 2000) (en banc). Accordingly, we afford almost total deference to a trial court’s

determination of historical facts supported by the record which are based upon evaluation of credibility

and demeanor of the witnesses. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)

[**8] (en banc). Thus, the findings of fact of the trial court, which find support in the record, and the

rational inferences drawn from the supported facts are entitled to deference on appeal. See Manzi v.

State, 88 S.W.3d 240, 243 (Tex. Crim. App. 2002). However, the legal conclusion drawn from those

facts is reviewed de novo. See Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004) (holding

questions involving legal principles and the application of law to established facts are reviewed de

novo).

A law enforcement official may stop and detain a citizen suspected of commission of a criminal offense

on less evidence than that required to support probable cause. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct.

1868, 20 L. Ed. 2d 889 (1968). To support an investigatory detention, 1) the officer’s actions must be

justified at the inception of the detention, and 2) the detention must be reasonably related in scope to

the circumstances that justified the interference in the first place. Id. at 19-20. We make the

determination regarding the initial stop based on a review of the totality of the circumstances to

ascertain whether the trooper had reasonable suspicion to believe that appellant had committed

[**9] an offense or in some other manner provided the trooper with articulable facts that would support

a detention. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (en banc).

Initial Stop

Regarding the initial stop of appellant, appellant asserts in her first issue that the officer did not have

reasonable suspicion to stop her or did not reasonably use his community caretaking function to do so.

As to the second portion of appellant’s contention, the community caretaking function, this was never

asserted to be the reason to stop appellant. See Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App.

2002) (noting that a police officer’s job has been characterized to include a community caretaking

function). The trial court’s findings of fact do not mention this theory at all, and a review of the record

demonstrates that the State never relied upon the community caretaking function to support the initial

stop of appellant. Rather, the State avers that appellant committed a traffic offense that resulted in her

stop.

Page 4 of 9

420 S.W.3d 195, *200; 2013 Tex. App. LEXIS 15092, **9

[*200] Trooper Phouatthavong testified that he observed appellant’s vehicle twice cross over onto the

improved shoulder on the solid white line. This according to the trooper was [**10] the traffic offense

of driving on the improved shoulder. TEX. TRANSP. CODE ANN. § 545.058 (West 2011). The statute at issue

provides:

(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a

roadway if that operation is necessary and may be done safely, but only:

(1) to stop, stand, or park;

(2) to accelerate before entering the main travelled lane of traffic;

(3) to decelerate before making a right turn;

(4) to pass another vehicle that is slowing or stopped on the main traveled portion of the

highway, disabled, or preparing to make a left turn;

(5) to allow another vehicle traveling faster to pass;

(6) as permitted or required by an official traffic-control device; or

(7) to avoid a collision.

Id.2

Appellant’s contention is that, since the State has the burden of proof on the issue of legality of the

initial detention, the State must elicit testimony that proves none of the seven exceptions to the

prohibition about driving on the improved shoulder applies. This misses the meaning of the statute. The

seven listed exceptions are instances when driving on the improved shoulder [**11] is permissible

when necessary, and can be done so safely. See Lothrop v. State, 372 S.W.3d 187, 191 (Tex. Crim. App.

2012). The record reflects that Trooper Phoutthavong testified that appellant was driving on the

improved shoulder when prohibited. Appellant denied ever driving on the improved shoulder. This

testimony demonstrates that there is nothing in the record to reflect the necessity of appellant to drive

on the shoulder or that her driving on the improved shoulder fit any of the seven listed exceptions to

the prohibition to driving on the improved shoulder. See id. This and other intermediate appellate

courts have found that the traffic offense of driving on the improved shoulder supports an initial

detention of a driver. See id. (finding probable cause for traffic stop for violation of section

545.058(a)); State v. Lockhart, No. 07-04-00304-CR, 2005 Tex. App. LEXIS 6159, at *9 (Tex.

App.—Amarillo Aug. 2, 2005, no pet.) (not designated for publication) (finding that driving on

improved shoulder supported probable cause to stop appellant); Martinez v. State, 29 S.W.3d 609, 612

(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (suggesting violation of driving on shoulder statute

[**12] as alternative justification for stop). Therefore, it is clear to this Court that the trooper had

sufficient cause to initially detain appellant for the commission of a traffic offense. Appellant’s second

issue is overruled.

Continued Detention

By her third issue appellant contends that the trooper lacked reasonable suspicion to continue to detain

her after the issuance of the warning ticket for driving on the improved shoulder. The trial court found

that the trooper had reasonable suspicion to detain appellant further.

2

Further reference to the Texas Transportation Code will be by reference to ″§ .″

Page 5 of 9

420 S.W.3d 195, *200; 2013 Tex. App. LEXIS 15092, **12

In addressing appellant’s complaint, we need to begin with a review of the applicable law. Inasmuch

as we have held, in connection with appellant’s second issue, that the trooper had reasonable suspicion

[*201] to initially stop appellant, the issue now before the Court is the second prong of the Terry

analysis. See Kothe, 152 S.W.3d at 63. That is, we must now determine whether the search and seizure

was reasonably related, in scope, to the circumstances that justified the stop in the first place. See id.

In making this determination, we must remember that the scope of a Terry investigative stop can last

no longer than necessary to effect the purpose to the stop. See id. As [**13] a component of the initial

stop the trooper has authority to conduct a driver’s license and warrant check. See id. There is no

formulaic order that these actions must proceed in, rather they must not detain the citizen any longer

than necessary to effectuate their purpose. See id. at 66; see also United States v. Sharpe, 470 U.S. 675,

685-86, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) (declining to ″establish per se rule that a 20-minute

detention is too long″ under Terry). After completion of the purposes of the initial stop, the officer must

have reasonable suspicion to believe that further criminal activity has occurred or is being committed

to justify further detention of the suspect. See Davis, 947 S.W.2d at 245. In other words, once the

original purpose for the stop is exhausted, police may not unnecessarily detain drivers solely in hopes

of finding evidence of some other crime. Kothe, 152 S.W.3d at 64.

A review of the record before the Court indicates the following occurred. Appellant was stopped for

a traffic offense. Upon initially contacting appellant, the trooper noticed that appellant was extremely

nervous.3 During a routine interview of appellant, the trooper learned that [**14] the car was a rental

and that the rental agreement was a one-way rental from Arizona. Further, appellant learned that

appellant was headed to Massachusetts. Additionally, the trooper learned that appellant only stayed in

Arizona for two days. The trooper observed only a small backpack in the backseat of the car and

confirmed from appellant that this was her only luggage. Upon being questioned by the trooper,

appellant said she was going to meet her husband. Subsequently, the trooper requested a computer

check on appellant’s driver’s license and criminal history. Both appellant’s driver’s license and

criminal history were reported as clear. The trooper prepared a warning ticket for driving on the

improved shoulder and gave it to appellant. The trooper then requested permission to search

appellant’s vehicle and appellant declined to grant permission. The trooper then requested the K-9 unit

come and perform an open air search of the vehicle. Appellant was detained until this could be

performed. From these facts, we must decide whether the trooper had reasonable suspicion that

appellant had committed or was about to commit a criminal act.

In analyzing these facts we must remember that although we accept the trial court’s findings of facts,

the application of the facts to the law is reviewed de novo. Kothe, 152 S.W.3d at 62. The ultimate

question before us is whether this trooper developed objective facts, other than the facts that warranted

the initial stop, that would lead him to reasonably suspect that appellant has engaged or is engaging

in other criminal activity. See McQuarters v. State, 58 S.W.3d 250, 255 (Tex. App.—Fort Worth 2001,

pet. ref’d).

The facts as found by the trial court, and supported in the record, are as follows:

(1) Appellant flew to Arizona and stayed two days;

3

The trooper later explained that appellant, though [**15] polite and cooperative, was ″just a little more″ nervous than the average

motorist.

Page 6 of 9

420 S.W.3d 195, *202; 2013 Tex. App. LEXIS 15092, **15

[*202] (2) Appellant made a one-way rental of a

This text is long and has been trimmed here. Open the source document for the complete record.