United States Court of Appeals

For the Eighth Circuit

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No. 19-3555

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United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Steven Traylor,

lllllllllllllllllllllDefendant - Appellant.

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: November 19, 2020

Filed: March 25, 2021

[Unpublished]

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Before COLLOTON, MELLOY, and KELLY, Circuit Judges. 

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PER CURIAM.

Steven Traylor appeals an order of the district court denying his motion to

suppress evidence seized from his car. Traylor pleaded guilty to unlawful possession

of a firearm as a previously convicted felon, see 18 U.S.C. § 922(g)(1), but reserved

his right to appeal the order. The court imposed sentence, and this appeal followed.
Traylor’s contention is that after a police detective stopped him for traffic

violations on August 9, 2018, the detective unlawfully extended the seizure so that

police could deploy a drug-sniffing canine to examine Traylor’s car. Authority for

a seizure based on a traffic violation “ends when tasks tied to the traffic infraction

are—or reasonably should have been—completed.” Rodriguez v. United States, 575

U.S. 348, 354 (2015). The district court, adopting a report and recommendation of

a magistrate judge, found that the detective finished preparing a traffic ticket at

5:14:26 p.m., and required “approximately a minute” more to present the ticket to

Traylor and have him sign it. The court found that the drug dog arrived at 5:15 p.m.,

and that police thus did not unlawfully extend the seizure. The court then ruled that

once the canine alerted to the presence of drugs, police had probable cause to search

the vehicle, so there was no violation of the Fourth Amendment.

It turns out, however, that the district court’s conclusion was premised on a

mistaken finding of fact. The parties agree on appeal that the drug dog did not arrive

at Traylor’s location until 5:16:15 p.m.—a point in time after the detective reasonably

should have finished the tasks tied to the traffic infraction.*

 Traylor did not object in

the district court to the mistaken finding about when the dog arrived, but the

government agrees that there was a plain error that affected Traylor’s substantial

rights. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732-35

(1993).

The government argues that Traylor cannot satisfy the final prong of plain-error

review, which requires a showing that the error seriously affected the fairness,

*Before presenting the traffic ticket to Traylor, the detective also placed a

telephone call to Traylor’s probation officer from 5:14:35 p.m. to 5:19 p.m. The

magistrate judge recommended concluding that the phone call was an impermissible

reason to extend the traffic stop, and the government asked the district court to adopt

the report in its entirety. The government therefore waived reliance on the phone call

as a proper basis for extending the traffic stop beyond 5:15 p.m.

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integrity, or public reputation of judicial proceedings before relief is warranted. 

Olano, 507 U.S. at 735-37. The reason asserted, however, is simply that there was

another permissible basis for extending the seizure until the dog arrived—namely,

that police had reasonable suspicion, independent of the traffic violations, to detain

Traylor. The government asserted this position in its opposition to the motion to

suppress, R. Doc. 19, at 5-8, and incorporated that response in its rejoinder to

Traylor’s objections to the magistrate judge’s report and recommendation, R. Doc.

32, so the argument is not waived or forfeited. But we deem it better for the district

court to make any necessary factual findings and to resolve the legal issue of

reasonable suspicion in the first instance.

For these reasons, we vacate the district court’s order of April 1, 2019, denying

Traylor’s motion to suppress, and remand the case for further consideration of the

motion. We retain jurisdiction over the appeal during this limited remand. Once the

district court’s supplemental order is entered, the clerk is directed to return the case

to this panel for disposition of the appeal.

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