United States v. Turvin ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30551
Plaintiff-Appellant,
D.C. No.
v.
 CR-06-00043-a-
SEAN T. TURVIN; CORINA L. JWS/JD
CUNNINGHAM,
OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted
August 8, 2007—Anchorage, Alaska
Filed February 26, 2008
Before: J. Clifford Wallace, John T. Noonan, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Wallace;
Dissent by Judge Paez
1615
1618 UNITED STATES v. TURVIN
COUNSEL
Nelson P. Cohen, United States Attorney, and David A. Nes-
bett, Assistant United States Attorney, District of Alaska, and
Elizabeth A. Olson, Attorney, U.S. Department of Justice,
Washington, D.C., for the appellant.
Mary C. Geddes, Assistant Federal Defender, Anchorage,
Alaska, for the appellees.
OPINION
WALLACE, Senior Circuit Judge:
The government appeals from the district court’s order sup-
pressing evidence obtained from the search of Turvin’s vehi-
cle. While Turvin was waiting for a police officer to issue a
traffic citation, the officer questioned Turvin about metham-
phetamine and obtained Turvin’s consent to search his vehicle
for contraband. The district court held that the officer’s ques-
tions about methamphetamine and request to conduct a
UNITED STATES v. TURVIN 1619
search, unsupported by reasonable suspicion, turned an ini-
tially reasonable detention into an unconstitutional one and
rendered Turvin’s consent involuntary. We have jurisdiction
pursuant to 18 U.S.C. § 3731 and we reverse.
I.
On the evening of November 20, 2005, Alaska State
Trooper Christensen stopped a white pickup truck based on
the truck’s unusually loud exhaust, rapid acceleration around
a turn involving minor skidding, and driving six miles over
the speed limit in snowy conditions. When he approached the
truck, which had entered a gas station parking lot, the Trooper
observed that neither occupant appeared to be wearing a seat-
belt and that the truck’s registration was expired. He asked the
occupants for identification; the driver was Sean T. Turvin
and the occupant was Corina L. Cunningham. The Trooper
talked to them for three or four minutes about the violations
he had observed and then returned to his police vehicle, where
he radioed headquarters to conduct a warrant and license
check. The response informed him that Turvin’s driver’s
license was current and valid.
About ten minutes after the stop began, while Christensen
sat in his vehicle writing out traffic citations, Trooper Powell
arrived at the scene. Powell had heard Christensen on the
police radio and recognized Turvin’s name because he knew
that a “rolling methamphetamine laboratory” had been found
in Turvin’s vehicle following a traffic stop earlier that year.
When Powell arrived, he recognized Turvin and Turvin’s
truck, and informed Christensen about the prior incident.
Christensen then stopped writing out the traffic citations,
turned on his tape recorder, and stepped out to speak with
Turvin, who was still in his truck. Powell positioned himself
at the rear of Turvin’s truck to assist if needed.
Upon approaching the truck, Christensen told Turvin that
he knew about the rolling methamphetamine laboratory,
1620 UNITED STATES v. TURVIN
which Turvin acknowledged. Christensen then observed
something in plain view behind Turvin’s seat, which Turvin
identified as a speaker box. Christensen then asked Turvin if
he would mind if Christensen searched his vehicle because
the speaker box, Christensen said, “look[ed] very odd.” The
conversation was calm and relaxed, and Turvin consented to
the search without equivocation.
The search ultimately yielded a sawed-off shotgun 1 inches
below the minimum legal length and a small cup containing
packages of a crystal substance determined by field test to be
methamphetamine. Turvin was placed in custody when the
methamphetamine packages were discovered.
Turvin and Cunningham were cited for not wearing seat-
belts, and Turvin was cited for his truck’s loud exhaust. Cun-
ningham was arrested based on her proximity to the drugs
found in the cup. A search of Cunningham revealed $773 in
cash. Later, when police examined the cash at the police sta-
tion, they found mixed in among the bills a plastic bag con-
taining a substance suspected to be methamphetamine.
Turvin and Cunningham were indicted for conspiracy to
traffic methamphetamine and possession with intent to dis-
tribute five grams or more of methamphetamine. Turvin was
also indicted for possession of a prohibited firearm. Turvin
filed a motion to suppress, which Cunningham joined, arguing
that “the police had no reasonable suspicion for the prolonged
detention,” and that Turvin’s consent to the search of his truck
was involuntary.
The district court granted Turvin’s motion to suppress,
adopting the magistrate judge’s (MJ) recommendation that,
though the initial traffic stop was lawful and based on proba-
ble cause that a traffic violation had occurred, Christensen
“exceeded the scope of the traffic stop” by “investigat[ing]
into suspected drug activities beyond the scope of the traffic
stop during the time that Turvin was not free to leave.” The
UNITED STATES v. TURVIN 1621
MJ and district judge agreed that this investigation violated
Turvin’s Fourth Amendment rights as explained by us in
United States v. Chavez-Valenzuela, 268 F.3d 719 (9th Cir.
2001). Turvin’s consent to the search, the MJ reasoned, did
not render the search lawful because it was obtained during
“an extended and an unlawful detention arising from a traffic
stop.” The district judge denied the government’s motion for
reconsideration and the government timely appealed.
II.
We review for clear error the district court’s underlying
findings of fact and de novo the district court’s ruling on a
motion to suppress. United States v. Miranda-Guerena, 445
F.3d 1233, 1236 (9th Cir. 2006). The only disputed issue on
appeal is whether Christensen violated Turvin’s and Cunning-
ham’s Fourth Amendment rights by asking questions unre-
lated to the purpose of the stop that unreasonably extended the
duration of the initially lawful traffic stop.
A.
[1] Our analysis of the district court decision is based pri-
marily on our recent and on-point decision in United States v.
Mendez, 476 F.3d 1077 (9th Cir. 2007), which we decided
after the district court’s final ruling. In Mendez, we rejected
a Fourth Amendment claim despite the fact that police offi-
cers in that case had, without reasonable suspicion, asked
Mendez questions unrelated to the purpose of an initially law-
ful traffic stop. Id. at 1081. In so deciding, we acknowledged
that the Supreme Court had overruled those portions of
Chavez-Valenzuela (the case upon which the district court’s
decision was based) that required police officers to have rea-
sonable suspicion to ask questions beyond the scope of a traf-
fic stop. Id. at 1080.
In Mendez, Detectives Jaensson and Bracke had stopped
Mendez because his car did not have a license plate or tempo-
1622 UNITED STATES v. TURVIN
rary registration tag. Id. at 1078. While Bracke conducted a
records check in the patrol car, Jaensson waited at the curb
with Mendez and asked him several questions unrelated to his
license plate or vehicle registration. Id. at 1078-79. Once
Bracke completed the records check, he started back toward
the curb to inform Mendez that his temporary registration
plate had expired; en route, he overheard Mendez telling Jaen-
sson that he was “trying to get away from the gang life” and
that he had spent time in an Illinois prison. Id. at 1079. As he
approached the curb, Bracke asked Mendez why he had been
imprisoned; Mendez replied that he had been convicted of a
weapons violation. Id. Bracke then asked whether Mendez
had any weapons in the car and Mendez eventually admitted
to having a firearm in the driver’s door handle. Id. The offi-
cers arrested Mendez and searched the vehicle, finding a
loaded, small caliber, semi-automatic pistol. Id. Mendez
moved to suppress the handgun, but the district court denied
his motion. Id.
[2] Mendez pled guilty but preserved the right to appeal
from the district court’s denial of his motion, arguing that the
officers lacked reasonable suspicion to interrogate him about
matters beyond the purpose of the stop and that the officers
unreasonably prolonged the stop. Id. We rejected Mendez’s
arguments, relying on the Supreme Court’s decision in Mue-
hler v. Mena, 544 U.S. 93 (2005), which held that “mere
police questioning does not constitute a seizure” and thus no
reasonable suspicion is required to justify questioning that
does not prolong an initially lawful stop. Mendez, 476 F.3d at
1080, quoting Muehler, 544 U.S. at 101 (internal quotation
marks omitted). We concluded that “the officers’ questioning
of Mendez did not extend the duration of a lawful stop” and
so “the expanded questioning need not have been supported
by separate reasonable suspicion.” Id. at 1081.
The Mendez and Muehler reasoning is persuasive in this
appeal, and we reject Turvin’s and the dissent’s reliance on
Chavez-Valenzuela; contrary to the dissent’s assertion, none
UNITED STATES v. TURVIN 1623
of the aspects of Chavez-Valenzuela that are relevant to this
appeal survive Muehler.
[3] We disagree with the dissent’s characterization of the
primary holding in Chavez-Valenzuela. The dissent asserts the
primary holding was “that an officer cannot ask questions that
extend the duration of a traffic stop beyond its initial purpose
without having reasonable suspicion for doing so.” Diss. Op.
at 1634. The dissent errs as the issue before this court in
Chavez-Valenzuela was whether nervousness alone provided
the reasonable suspicion required (at the time) to justify an
officer’s continued detention of a suspect after he had satis-
fied the purpose of the stop. 268 F.3d at 726. The question of
whether reasonable suspicion was necessary to justify ques-
tioning that prolonged the duration of the stop was simply not
relevant (and certainly not addressed) in Chavez-Valenzuela,
because at the time it was decided any questioning unrelated
to the purpose of the stop, regardless of its effect on the dura-
tion of the stop, needed to be supported by reasonable suspi-
cion. See id. at 724. That underlying assumption is no longer
good law. See Mendez, 476 F.3d at 1080 (“To the extent that
Chavez-Valenzuela . . . hold[s] that such questioning must be
supported by reasonable suspicion, [it has] been overruled by
Muehler.”) Mendez is the law on police questioning during a
traffic stop, and it is Mendez that we must apply to the facts
of this case.
B.
However, we must now address a factual distinction
between this case and Mendez that has not yet been resolved
by our post-Muehler cases. As we pointed out in Mendez, “the
stop was not unnecessarily prolonged.” Id. at 1079. Jaens-
son’s questioning occurred while Bracke was checking on
Mendez’s identification, so “the stop would, in any event,
have lasted until after the check had been completed.” Id. at
1080. Once the records check was complete, Bracke, who had
overheard Mendez’s comments about gang membership and
1624 UNITED STATES v. TURVIN
jail time, “immediately asked his two questions.” Id. We also
pointed out that from the time of the stop up to the arrest was
only eight minutes. Id.
Turvin contends that in this case, the stop was unnecessar-
ily prolonged. The MJ did not specifically address this point,
determining that the questions were unconstitutional merely
because they were outside the scope of the stop, a conclusion
now clearly foreclosed by Mendez. After a motion for recon-
sideration, however, the MJ did state in his final report that
“the traffic stop . . . was extended or prolonged because of the
comments by late arriving Trooper Powell . . . . Although
Trooper Christ[e]nsen had been writing traffic tickets . . . he
stopped his ticket-issuing process and used a tape recorder
solely for the purpose of asking Turvin about drugs and for
[ ] consent to search his vehicle.”
The question, then, is this: does the fact that Christensen
paused his ticket-writing process to ask a few questions unre-
lated to the purpose of the traffic stop, thereby prolonging, for
at least a few moments, the duration of that otherwise legal
stop, turn the initially lawful stop into an unlawful detention?
That is, based on the factual circumstances underlying this
appeal, did Christensen’s brief pause unreasonably prolong
the traffic stop and thus violate Turvin’s Fourth Amendment
right to be free from an unreasonable seizure?
[4] We have never considered whether questioning unre-
lated to the purpose of the traffic stop and separate from the
ticket-writing process that prolongs the duration of the stop
may nonetheless be reasonable under Muehler’s Fourth
Amendment analysis. Nor have other circuits squarely
addressed this factual situation. However, the Supreme
Court’s teaching that “the touchstone of the Fourth Amend-
ment is reasonableness,” Florida v. Jimeno, 500 U.S. 248,
250 (1991), gives us important guidance. The Court has
emphasized that a fact-specific reasonableness inquiry is
appropriate for Fourth Amendment questions. See Ohio v.
UNITED STATES v. TURVIN 1625
Robinette, 519 U.S. 33, 39 (1996). Therefore, in the present
case, we must examine the “totality of the circumstances” sur-
rounding the stop, and determine whether Christensen’s con-
duct was reasonable. Id.
In Mendez, we identified the overall length of the stop,
observing that the eight-minute stop was not beyond the time
normally required to issue a citation. 476 F.3d at 1079-80. We
also pointed out that Jaensson and Bracke did not intention-
ally delay the stop but diligently pursued their investigation
into the purpose of the stop. Id. at 1080.
[5] As in Mendez, the circumstances surrounding the brief
pause here were reasonable. The total duration of the stop up
to the point at which Turvin consented to the search was,
according to Christensen’s uncontested testimony, about four-
teen minutes. This is no longer than an ordinary traffic stop
could reasonably take, and we do not agree with the dissent
that evidentiary findings are necessary to demonstrate the sen-
sible observation that fourteen minutes is not unreasonably
long for a traffic stop. Of that time, it took Christensen per-
haps four minutes to speak with Powell and then to walk to
Turvin’s vehicle and ask him about the rolling methamphet-
amine laboratory and for consent to search. This was reason-
able for him to do based on Powell’s arrival and information
about a rolling methamphetamine laboratory involving the
same vehicle and the same person.
[6] Moreover, that Christensen observed the speaker box
prior to requesting consent to search buttresses the conclusion
that his request was reasonable under the circumstances.
Christensen knew of a prior rolling methamphetamine labora-
tory, which could have been contained in something like the
speaker box, justifying further inquiry. The speaker box
observation is significant. The MJ’s initial findings of fact
indicated that Christensen did not see the box behind Turvin’s
seat until after he sought consent to search. We agree with the
government that this finding is clearly erroneous; the audio
1626 UNITED STATES v. TURVIN
recordings of the stop show that Christensen did observe the
box before requesting consent to search. This fact is relevant
in establishing the circumstances in which Christensen asked
for consent to search. Just as it was reasonable in Mendez for
officers to ask questions based on information learned during
the course of the stop, Christensen’s question and request to
search were reasonable based on facts learned and observa-
tions made after he stopped Turvin.
[7] Sister circuits have adopted the same analysis: brief
pauses to ask questions during traffic stops, even if those
questions are unrelated to the purpose of the stop, may be per-
missible under Muehler. The Tenth Circuit held that question-
ing that does not “appreciably” extend the duration of a traffic
stop is reasonable, see United States v. Stewart, 473 F.3d
1265, 1269 (10th Cir. 2007), United States v. Alcaraz-
Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006). The Tenth
Circuit has declined to “make a time and motion study of traf-
fic stops” in order to determine the precise effect that ques-
tioning has on the duration of a stop, reasoning instead that
courts must “consider the detention as a whole.” United States
v. Patterson, 472 F.3d 767, 776 (10th Cir. 2006).
The Eighth Circuit has similarly held that a traffic stop
based on probable cause for driving at an excessive speed was
not made unreasonable when an officer “ask[ed] three brief
questions related to possible drug trafficking amidst his other
traffic related inquiries and tasks.” United States v. Olivera-
Mendez, 484 F.3d 505, 511 (8th Cir. 2007). (We do not pass
upon that court’s adoption of a de minimis exception justify-
ing brief questions.)
Indeed, officers are not required to move at top speed when
executing a lawful traffic stop. As the Eleventh Circuit has
stated,
A traffic stop for speeding can doubtlessly last long
enough for the police to ask questions about the rea-
UNITED STATES v. TURVIN 1627
sons for speeding and to conduct a variety of checks
about licenses, registration, insurance and so on. We
underline that the police are not constitutionally
required to move at top speed or as fast as possible.
For the police to be vigilant about crimes is, at least
broadly speaking, a good thing. And at a traffic stop,
the police can occasionally pause for a moment to
take a breath, to think about what they have seen and
heard, and to ask a question or so. The police are
authorized to detain traffic violators for a reasonable
amount of time.
United States v. Hernandez, 418 F.3d 1206, 1212 n.7 (11th
Cir. 2005) (internal citation omitted); see also United States
v. Sharpe, 470 U.S. 675, 686 (1985) (holding that a detention
was not unreasonable where officers, though slowed down,
were diligent in their investigation).
This analysis applies with particular force where, like here,
officers have probable cause to know of a traffic violation.
The Seventh Circuit, in a pre-Muehler decision, persuasively
reasoned that where probable cause of a traffic violation sup-
ports a stop, a driver does not
ha[ve] a right to be released the instant the steps to
check license, registration, and outstanding warrants,
and to write a ticket, ha[ve] been completed. It is
therefore not necessary to determine whether the
officers’ conduct added a minute or so to the mini-
mum time in which these steps could have been
accomplished. . . . What the Constitution requires is
that the entire process remain reasonable. Questions
that hold potential for detecting crime, yet create lit-
tle or no inconvenience, do not turn reasonable
detention into unreasonable detention.
United States v. Childs, 277 F.3d 947, 953-54 (7th Cir. 2002)
(en banc). We agree with this reasoning and result.
1628 UNITED STATES v. TURVIN
Christensen’s brief pause in the ticket-writing process was
reasonable, as was the duration of the detention until consent
was given. We will not accept a bright-line rule that questions
are unreasonable if the officer pauses in the ticket-writing
process in order to ask them. The Supreme Court has “consis-
tently eschewed bright-line rules [in the Fourth Amendment
context], instead emphasizing the fact-specific nature of the
reasonableness inquiry.” Robinette, 519 U.S. at 39. It is true
that in Mendez, the officers managed to ticket and question
detained drivers simultaneously. See Mendez, 476 F.3d at
1078-79. That has been true in situations considered by other
circuits as well. See, e.g., United States v. Soriano-Jarquin,
492 F.3d 495, 501 (4th Cir. 2007) (“In this case, [the Troop-
er’s] request for identification did not prolong the stop, as it
occurred while the police trainee checked the driver’s license
and registration and prepared his citations”). It does not fol-
low, however, that those are the only circumstances in which
it is reasonable to ask unrelated questions. The Supreme Court
does not set such a narrow rule, and neither do we. An officer
who asks questions while physically writing a ticket will
likely be slowed down just as an officer who briefly pauses
to do so. There is no principled reason why the second situa-
tion is unconstitutional but not the first.
The present case illustrates the irrationality of the distinc-
tion Turvin and the dissent offer. Under their proposed bright-
line rule, Christensen’s questions may have been permissible
in a number of scenarios materially indistinguishable from
what happened here: if Christensen had asked about drugs
when he originally stopped Turvin, or as he was handing the
ticket to Turvin, or if Christensen had asked Powell to con-
tinue writing the ticket while he approached Turvin, or if
Powell had asked the questions while Christensen wrote the
ticket. Permitting those scenarios but not the reasonable
actions that Christensen chose to take would draw an arbitrary
and unjustified line between constitutional and unconstitu-
tional conduct. Rather than bright-line simplification, the
Constitution requires a reasonableness analysis.
UNITED STATES v. TURVIN 1629
III.
[8] We hold that Mendez’s conclusion that officers do not
need reasonable suspicion to ask questions unrelated to the
purpose of an initially lawful stop applies here because Chris-
tensen’s question and request for consent to search did not
unreasonably prolong the duration of the stop. Because we
decide on this basis, we do not reach the issue of whether rea-
sonable suspicion supported Christensen’s questioning.
[9] As the stop was at all times a lawful detention, Turvin’s
voluntary consent rendered Christensen’s search legal. See
United States v. Torres-Sanchez, 83 F.3d 1123, 1129 (9th Cir.
1996). Therefore, the evidence obtained as a result of that
search is admissible and the district court’s order to suppress
is REVERSED.
PAEZ, Circuit Judge, dissenting:
Because I do not believe that reasonable suspicion sup-
ported Trooper Christensen’s decision to prolong his traffic
stop of Turvin, I would affirm the district court’s order grant-
ing Turvin’s motion to suppress. I therefore respectfully dis-
sent.
First, I agree with the majority that after the Supreme
Court’s decision in Muehler v. Mena, 544 U.S. 93 (2005), our
analysis of the Fourth Amendment issues in this case must be
guided by our recent decision in United States v. Mendez, 476
F.3d 1077 (9th Cir. 2007). There, we recognized that in Mue-
hler, the Court decided that “mere police questioning does not
constitute a seizure unless it prolongs the detention of the
individual, and, thus, no reasonable suspicion is required to
justify questioning that does not prolong the stop.” Mendez,
476 F.3d at 1080 (internal quotation marks omitted).
Although Muehler did not arise in the context of a traffic stop,
1630 UNITED STATES v. TURVIN
we further recognized that the Court’s reasoning applied to
such an encounter. Id.
In several cases prior to Muehler, we had held that during
the course of a traffic stop “[a]n officer must initially restrict
the questions he asks . . . to those that are reasonably related
to the justification for the stop.” United States v. Chavez-
Valenzuela, 268 F.3d 719, 724 (9th Cir. 2001) (citing United
States v. Perez, 37 F.3d 510, 513 (9th Cir. 1994)). See also
United States v. Murillo, 255 F.3d 1169, 1174 (9th Cir. 2001).
We had emphasized that an officer could expand the scope of
questioning “only if he notices particularized, objective fac-
tors arousing his suspicion.” Chavez-Valenzuela, 268 F.3d at
724 (citation omitted). After Muehler, this line of reasoning
could not pass constitutional muster, and we so held in
Mendez. We therefore concluded that: “[t]o the extent that
Chavez-Valenzuela, Murillo, and Perez hold that such ques-
tioning must be supported by separate reasonable suspicion,
they have been overruled by Muehler.” Mendez, 476 F.3d at
1080. Recognizing this new legal landscape, we rejected
Mendez’s Fourth Amendment challenge to his arrest, explain-
ing that, “because . . . the officers’ questioning did not pro-
long the stop, we are compelled to hold that the expanded
questioning need not have been supported by separate reason-
able suspicion.” Id. at 1080-81.
Here, to the extent that the district court’s suppression rul-
ing relied on the portion of Chavez-Valenzuela that was over-
ruled by Mendez, it was incorrect. As the majority recognizes,
however, this was not the only basis for the district court’s
ruling. In the magistrate judge’s Final Recommendation
Regarding Defendant’s Motion to Suppress, he explained:
[As the [Initial] Recommendation concluded the traf-
fic stop of Turvin and his passenger Cunningham
was extended or prolonged because of the comments
by late arriving Trooper Powell who advised
Trooper Christiansen [sic] of a prior police contact
UNITED STATES v. TURVIN 1631
with Turvin involving a rolling meth lab. Although
Trooper Christiansen [sic] had been writing traffic
tickets to Turvin and Christiansen [sic] (for not
wearing a seat belt), he stopped his ticket-issuing
process and used a tape recorder solely for the pur-
pose of asking Turvin about drugs and for a consent
to search his vehicle. Normally, an officer engaged
in a traffic stop will not use a tape recorder. Tr. 25.
The magistrate judge reaffirms his finding that the
police prolonged the otherwise lawful detention of
Turvin and his passenger on grounds for which they
did not have reasonable suspicion for doing so.
I agree with the district court that reasonable suspicion did
not exist to prolong the stop of Turvin and his companion. It
is clear from Trooper Christensen’s testimony that until
Trooper Powell arrived on the scene, Christensen did not have
any reason to suspect that either Turvin or his companion had
been or were engaged in any illegal drug activity.
Christensen had stopped Turvin’s truck because of its loud
exhaust, rapid acceleration around a corner, minor skidding
and speeding. As Christensen approached the truck, he
observed that neither occupant appeared to be wearing a seat-
belt and the truck’s registration was expired. After Christen-
sen conducted a license and warrants check on Turvin, he was
informed that Turvin’s license was current and valid. Trooper
Christensen then decided to issue traffic citations to Turvin
and his companion.
About ten minutes after the stop began, while Christensen
sat in his vehicle writing out the traffic citations, Trooper
Powell arrived at the scene. Powell had heard Christensen on
the police radio and recognized Turvin’s name, because he
knew that a “rolling meth lab” had been found in Turvin’s
vehicle following a traffic stop earlier in 2005.
When Powell arrived at the scene, he recognized Turvin
and his truck and informed Christensen about the prior inci-
1632 UNITED STATES v. TURVIN
dent. Christensen then (1) “stopped his ticket-issuing pro-
cess,” (2) turned on the tape recorder in his police vehicle
“solely for the purpose of asking Turvin about drugs and for
a consent to search his vehicle,” and (3) exited his vehicle and
returned to Turvin’s truck, while Powell positioned himself at
the rear of Turvin’s vehicle to stand by as backup. At this
point, the troopers had not seen anything in the truck to indi-
cate that it might contain methamphetamine or that Turvin
and his companion were involved with meth.
After returning to the truck, Christensen told Turvin, who
was standing outside his vehicle, that he knew about the roll-
ing meth lab, which Turvin acknowledged. After stating that
he could see something behind Turvin’s seat, which Turvin
said was a speaker box, Christensen asked Turvin if he could
search his vehicle. The purpose of seeking Turvin’s consent
was to search for contraband.
Although the majority faults the magistrate judge for erro-
neously finding that Christensen asked for consent to search
before observing the speaker box, I agree with his determina-
tion that whether this observation occurred before or after
Christensen asked for consent, is immaterial. What is impor-
tant in my view is that, when Powell informed Christensen
about his prior encounter with Turvin earlier in 2005, Chris-
tensen did not just “briefly pause” in writing the traffic cita-
tions so that he could ask Turvin for consent to search his
truck. Rather, Christensen completely stopped writing the
citations and decided to embark upon a drug investigation.
Indeed, he turned on his tape recorder for the purpose of ask-
ing Turvin about drugs and for consent to search his vehicle.
Because, as the magistrate judge correctly found, this new
endeavor prolonged the length of the stop, Christensen needed
reasonable suspicion to do so.
Here, reasonable suspicion did not exist. Reasonable suspi-
cion requires a “particularized and objective basis for suspect-
ing the person stopped of criminal activity.” United States v.
UNITED STATES v. TURVIN 1633
Tiong, 224 F.3d 1136, 1140 (9th Cir. 2000) (internal quota-
tion marks omitted). There was nothing about the traffic
infractions or Turvin’s conduct after the stop that provided an
objective basis for a reasonable officer to suspect that illegal
drug activity was afoot. Moreover, Christensen did not imme-
diately see anything in the truck that aroused his suspicion. It
was not until Powell arrived at the scene with information
about his prior contact with Turvin that Christensen even con-
sidered inquiring about illegal drug activity. This new infor-
mation that centered on Turvin’s prior criminal record, by
itself, was insufficient to support reasonable suspicion. Bur-
rell v. McIlroy, 464 F.3d 853, 858 n.3 (9th Cir. 2006)
(“Although a prior criminal history cannot alone establish rea-
sonable suspicion or probable cause to support a detention or
an arrest, it is permissible to consider such a fact as part of the
total calculus of information in these determinations.”). See
also United States v. Chamberlin, 644 F.2d 1262, 1265 (9th
Cir. 1980); United States v. Santos, 403 F.3d 1120, 1132
(10th Cir. 2005).
The majority finds it significant that Christensen did not
ask for consent until after he observed the speaker box behind
Turvin’s seat. The majority’s emphasis on this observation,
however, minimizes Christensen’s response to the informa-
tion provided by Powell. It seems obvious, that, with this new
information, Christensen had a hunch that if he were to search
the truck he might well find drugs, drug paraphernalia, or
even a “rolling meth lab.” A hunch, while it might reflect
good police intuition, does not amount to reasonable suspi-
cion. See United States v. Thomas, 211 F.3d 1186, 1191 (9th
Cir. 2000) (“Reasonable suspicion must be based on more
than an officer’s ‘inchoate and unparticularized suspicion or
‘hunch.’ ”’ (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)));
Chavez-Valenzuela, 268 F.3d at 724 (“Conversely, an incho-
ate and unparticularized suspicion or ‘hunch’ cannot with-
stand scrutiny under the Fourth Amendment.” (quoting United
States v. Sokolow, 490 U.S. 1, 7 (1989))).
1634 UNITED STATES v. TURVIN
In sum, I agree with the district court’s determination that
reasonable suspicion did not exist to prolong the traffic stop.
The majority does not directly address this issue. Maj. Opin.
at 1629. (“[W]e do not reach the issue of whether reasonable
suspicion supported Christensen’s questioning.”). Instead, the
majority, while invoking a fact-specific Fourth Amendment
reasonableness inquiry, concludes that “we must examine the
“totality of the circumstances” surrounding the stop, and
determine whether Christensen’s conduct was reasonable.”
Maj. Opin. at 1625. Ultimately, the majority holds that
“Mendez’s conclusion that officers do not need reasonable
suspicion to ask questions unrelated to the purpose of an ini-
tially lawful stop applies here because Christensen’s question
and request for consent to search did not unreasonably pro-
long the duration of the stop.” Maj. Opin. at 1629. In the con-
text of this case, this approach can not be sanctioned by
Mendez, or Chavez-Valenzuela, or by the district court’s find-
ings.
As I read Mendez (and Muehler), when a police officer asks
questions that exceed the purposes of a traffic stop, such ques-
tioning “does not constitute a seizure unless it prolongs the
detention of the individual.” Mendez, 476 F.3d at 1080
(emphasis added) (internal quotation marks omitted). When
the expanded questioning prolongs the duration of an initially
lawful stop, however, such questioning must be supported by
reasonable suspicion. Id. Although Mendez overruled portions
of Chavez-Valenzuela, id. at 1080, it left intact its primary
holding—that an officer cannot ask questions that extend the
duration of a traffic stop beyond its initial purpose without
having reasonable suspicion for doing so. Chavez-Valenzuela,
268 F.3d at 725-26. Thus, as I have discussed, the critical
question here is whether reasonable suspicion existed for the
extended stop, and not whether the extended duration was rea-
sonable under all the circumstances.
In support of its holding, the majority points to the informa-
tion provided by Powell about his prior contact with Turvin,
UNITED STATES v. TURVIN 1635
characterizes the interruption in the ticket writing as brief,
emphasizes Christensen’s observation of the speaker box
behind Turvin’s seat, and finds that the duration of the stop
to the point at which Turvin consented to the search—
approximately fourteen minutes—“is no longer than an ordi-
nary traffic stop could reasonably take.” Maj. Opin. at 1625.
There is nothing in the record to support the latter finding.
The Government did not present any evidence on this issue,
and the district court did not make such a finding. This is a
factual determination that is best left to the district court. In
any event, because the majority adopts an approach that is
inconsistent with Mendez and Chavez-Valenzuela, I am not
persuaded by its assessment of Trooper Christensen’s con-
duct.
With the majority’s approach, it will take very little for
traffic officers to invoke T.V. Detective Columbo’s infamous
strategy of asking “just one more question.” See United States
v. Chavez-Valenzuela, 281 F.3d 897, 897-98 n.1 (9th Cir.
2002) (O’Scannlain, J., dissenting from denial of rehearing en
banc). So long as there is some basis to briefly prolong a stop,
even when the purpose of the stop has ended, there will be no
Fourth Amendment violation. Although it does not take much
to satisfy the reasonable suspicion standard—particularized
objective facts that criminal activity is afoot—the majority’s
new approach lowers Fourth Amendment protection another
notch.
The majority’s discussion of cases from several of our sis-
ter circuits is not persuasive. In United States v. Stewart, 473
F.3d 1265 (10th Cir. 2007), the county sheriff’s expanded
questioning occurred while the motorist was in the process of
retrieving his driver’s license, and, as the defendant conceded,
the questions did not appreciably prolong the stop. In United
States v. Alcaraz-Arellano, 441 F.3d 1252, 1256-58 (10th Cir.
2006), the expanded questioning occurred while the officer
was gathering and verifying information provided by the
driver of the vehicle. Notably, when the officer returned the
1636 UNITED STATES v. TURVIN
license to the driver, and then began to ask additional ques-
tions, the court determined that the officer prolonged the stop,
which could only be justified if the officer had reasonable sus-
picion. Id. at 1259-60. After considering all of the information
that the officer had acquired during the course of the stop, the
court held that the officer had reasonable suspicion to further
detain the driver. Id.
In United States v. Patterson, 472 F.3d 767, 777 (10th Cir.
2006), Patterson alleged that the trooper prolonged the deten-
tion while obtaining his documents and conversing with him
as the trooper waited for verification of Patterson’s license
and vehicle registration. He argued that the trooper deliber-
ately extended the time necessary to complete the stop so that
another trooper could arrive with a drug detection dog to
inspect Patterson’s vehicle, which took place approximately
ten minutes into the stop. Id. at 773, 777. In evaluating the
reasonableness of the stop from the initial detention to the
issuance of the traffic ticket, the court held that the trooper did
not unreasonably prolong the stop and relied upon the fact
that Patterson did the majority of the talking. Id. at 777. As
the trooper finished writing a warning ticket, a drug detection
dog alerted to a scent on the vehicle. Id. at 773. After the dog
alerted several more times, the trooper searched the vehicle
and found illegal drugs in a hidden compartment. Id. The dog
alert provided reasonable suspicion for the troopers to prolong
their detention of Patterson from the alert to the arrest. Id. at
776.
In Patterson, the court disagreed with the defendant’s argu-
ment that the trooper prolonged the stop by taking too long to
complete those actions necessary to issue a traffic ticket; the
court further held that the shift in focus to a drug investigation
did prolong the stop but was supported by reasonable suspi-
cion. Id. at 777-78. Here, Christensen did not extend the
detention of Turvin while he obtained information from Tur-
vin immediately after the stop or while he waited for the war-
rants check and verification of Turvin’s license. Nor do the
UNITED STATES v. TURVIN 1637
facts suggest that Turvin was overly talkative. Only after
Powell arrived on the scene, did Christensen stop writing the
traffic citations and refocus the stop into a drug investigation,
thus prolonging it. He did so without reasonable suspicion.
Without much explanation or analysis, the majority is per-
suaded by and adopts the Seventh Circuit’s approach in
United States v. Childs, 277 F.3d 947 (7th Cir. 2002) (en
banc). There, the court held “that where a seizure of a person
is based on probable cause to believe that a traffic violation
was committed, an officer does not violate the Fourth Amend-
ment by asking a few questions about matters unrelated to the
traffic violation, even if this conversation briefly extends the
length of the detention.” United States v. Olivera-Mendez,
484 F.3d 505, 510 (8th Cir. 2007). Several other circuits, the
Eighth in Olivera-Mendez, id. at 511, and the Sixth in United
States v. Burton, 334 F.3d 514, 518-19 (6th Cir. 2003), have
also adopted the Seventh Circuit’s reasoning in Childs.
In our circuit, however, the majority does not write on a
clean slate. As I read Chavez-Valenzuela and Mendez, when
an officer prolongs a traffic stop with expansive questioning,
the extended duration must be supported by reasonable suspi-
cion. Although we concluded that probable cause existed to
stop Chavez-Valenzuela for speeding, we proceeded to exam-
ine whether the extended detention was supported by reason-
able suspicion. Chavez-Valenzuela, 268 F.3d at 725-727. In
Mendez, the validity of the initial stop was not disputed.
Nonetheless, we clearly held that questioning that extends the
duration of a stop must be supported by reasonable suspicion.
See Mendez, 476 F.3d at 1080. That holding is consistent with
the part of Chavez-Valenzuela that remains good law. In my
view, the majority’s approach to this important Fourth
Amendment issue is at odds with Chavez-Valenzuela and with
our bottom line holding in Mendez.
For all the above reasons, I would affirm the district court’s
suppression ruling. I therefore respectfully dissent.