# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued October 29, 2009

Decided December 1, 2009

Before

JOEL M. FLAUM, Circuit Judge

DANIEL A. MANION, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 09

‐ 1931

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

TIMOTHY A. BROWN,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Central District of Illinois.

No. 07 CR 40094

Joe Billy McDade, Judge

.

O R D E R

In September 2007, Timothy A. Brown asked his girlfriend, Annie Bell, to rent a car

for him to drive to Las Vegas, NV, so that he could shop for a dump truck for his business.

Bell used her credit card to rent a sport

‐ utility vehicle (“SUV”) from a car rental company in

Austintown, OH. Bell gave Brown the keys to the automobile and permission to drive it to

Las Vegas, even though she was the only authorized driver listed in the rental agreement.

Brown drove to Las Vegas and then to California. On his return trip to Ohio, Illinois State

Police Trooper Andrew Fratzke pulled Brown over for speeding. Brown presented the

trooper with his driver’s license and the rental agreement for the SUV and told him that he

was on his way back from Las Vegas. Trooper Fratzke returned to his squad car and ran a

check on Brown’s license and the automobile’s plates. The license check revealed that

Brown had previous drug offenses. Trooper Fratzke prepared a written warning for the

speeding infraction and walked back to the SUV. He then asked Brown to step to the front 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 1931 Page 2

1 Brown claimed in the district court and repeats on appeal that he did not consent to

the sniff.

2 Brown also contends that the district court erred in concluding he lacked “standing”

to bring the motion to suppress. (We note that the Supreme Court has rejected the use of the

standing rubric to describe a person’s legitimate expectation of privacy in the place searched.

Minnesota v. Carter

, 525 U.S. 83, 87–88 (1998) (citing Rakas v. Illinois

, 439 U.S. 128, 139–40

(1978))). There is a division among the courts of appeals regarding whether the driver of a

rental vehicle, who is not listed as an authorized driver on the rental agreement but has the

permission of the authorized driver to use the vehicle, has a legitimate expectation of privacy

in the automobile that is protected by the Fourth Amendment. Compare United States v. Wellons

,

32 F.3d 117, 119 (4th Cir. 1994) (no), United States v. Boruff

, 909 F.2d 111, 117 (5th Cir. 1990) (no),

and United States v. Obregon

, 748 F.2d 1371, 1375 (10th Cir. 1984) (no), with United States v.

Thomas

, 447 F.3d 1191, 1199 (9th Cir. 2006) (yes), and United States v. Muhammad

, 135 F.3d 1223,

1225 (8th Cir. 1998) (suggesting the 

### answer is “yes”); see also United States v. Smith , 263 F.3d 571,

586 (6th Cir. 2001) (eschewing a bright

‐ line approach in favor of a totality

‐ of

‐ the

‐ circumstances of the vehicle to sign the warning, after which Trooper Fratzke returned Brown’s driver’s

license and the rental agreement. During the next minute, Trooper Fratzke commented that

it didn’t make sense that Brown would travel from Ohio to Las Vegas, stay only a day or

two, and then drive back. He also asked Brown if he had any illegal narcotics in the

automobile (Brown said he did not) and requested permission to walk Viper, a drug

‐

detection dog, around the perimeter of the SUV. After receiving Brown’s consent, 1 Trooper

Fratzke began walking Viper around the automobile. Two minutes later, Viper alerted to

the scent of narcotics at the rear bumper of the SUV. Trooper Fratzke then searched the

back of the vehicle, found seventeen kilos of cocaine and one pound of marijuana, and

arrested Brown.

Subsequently, a grand jury indicted Brown for possession with intent to distribute

cocaine, in violation of 21 U.S.C. § 841(a)(1). Brown filed a motion to suppress the evidence

discovered during the traffic stop, which the district court denied following a hearing. The

court held that Brown lacked “standing” to prosecute the motion. Alternatively, assuming

Brown had “standing,” the court held that the length of his detention was reasonable and

found that he had consented to the dog sniff. Brown then entered a guilty plea to the

charged offense but reserved his right to appeal the denial of his motion to suppress. The

district court sentenced Brown to 240 months’ imprisonment. Brown appeals the district

court’s denial of his motion to suppress.

On appeal, Brown argues that the district court erred in holding that the length of his

detention by Trooper Fratzke was reasonable and in finding that he consented to the dog sniff. 2No. 09

‐ 1931 Page 3

analysis). But we need not choose a side on this issue because even assuming that Brown did

have a legitimate expectation of privacy in the SUV, we ultimately conclude that the search of

the SUV was lawful. In examining a district court’s ruling on a motion to suppress, we review its legal conclusions

de novo and its factual determinations for clear error. United States v. Booker

, 579 F.3d 835, 838

(7th Cir. 2009).

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

houses, papers, and effects, against unreasonable searches and seizures.” U.S. C ONST

. amend.

IV. “Temporary detention of individuals during the stop of an automobile by the police, even

if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within

the meaning of [the Fourth Amendment].” Whren v. United States

, 517 U.S. 806, 809–10 (1996).

The stop of an automobile is reasonable for Fourth Amendment purposes, however, where

“police have probable cause to believe that a traffic violation has occurred.” Id. at 810.

Brown does not dispute that Trooper Fratzke had probable cause to stop him for

speeding. Rather, he contends that the purpose of the stop was completed when Trooper

Fratzke issued the written warning and returned to him his driver’s license and the rental

agreement. He argues that he then was illegally detained when Trooper Fratzke proceeded to

comment on the unusual nature of his trip to Las Vegas, asked whether there were any illegal

narcotics in the car, and requested permission to conduct a dog sniff. But our opinion in United

States v. Childs

, 277 F.3d 947 (7th Cir. 2002) (en banc), dooms that argument. In Childs

, we

observed that because traffic stops based on probable cause are arrests, the Fourth Amendment

does not mandate the release of such arrestees at the earliest possible moment. 277 F.3d at

953–54. Rather, the reasonableness of the detention is the constitutional touchstone, and police

properly may ask crime

‐ detecting questions that create little or no inconvenience to the arrestee,

even if such queries are unrelated to the purpose of the stop and are unsupported by any

suspicion. Id. at 954 (citing Ohio v. Robinette

, 519 U.S. 33 (1996)). Here, the video of the stop

shows that Trooper Fratzke’s comment about the peculiarity of Brown’s quick trip to Las Vegas,

question about whether there were illegal narcotics in the SUV, and request to conduct a dog

sniff all transpired in less than one minute after he issued the warning to Brown and returned

his driver’s license and the rental agreement. Brown’s detention was reasonable because those

questions were minimally (if at all) inconvenient and only briefly extended the length of the

stop. Accordingly, the detention did not violate the Fourth Amendment.

Brown also contends his Fourth Amendment rights were violated because he never

consented to extension of his detention so that Trooper Fratzke could conduct the dog sniff.

Trooper Fratzke, however, testified at the suppression hearing that Brown did give his consent.No. 09

‐ 1931 Page 4

3 Brown does not explicitly argue that his consent, even if given, was involuntary under

the totality of the circumstances. Schneckloth v. Bustamante

, 412 U.S. 218, 248–49 (1973). Even

if his contention that he did not consent could be understood to raise that argument, our review

of the entire record reveals no basis for such a finding. And on the video of the stop, although barely discernible, Brown’s response to Trooper

Fratzke’s consent request is in the affirmative. In addition, Trooper Fratzke’s words following

Brown’s response are clearly audible and consistent with Brown having consented. 3 Hence, we

see no clear error in the district court’s finding that Brown consented to the dog sniff and the

concomitant additional detention. The drug

‐ detection dog’s alert to narcotics provided

probable cause to search the SUV. United States v. Carpenter

, 406 F.3d 915, 916 (7th Cir. 2005).

Therefore, the drugs Trooper Fratzke found in the SUV were discovered pursuant to a lawful

search. Accordingly, the district court properly denied Brown’s motion to suppress.

AFFIRMED.