## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 5 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant,

v. DENNIS DAYTON HOLT, Defendant-Appellee. No. 99-7150

Appeal from United States District Court for the Eastern District of Oklahoma (D.C. No. 99-CR-77-B)

ON REHEARING EN BANC

Richard A. Friedman, Appellate Section, Criminal Di vision, Department of Justice, Washington, D.C., (Bruce Green, United States Attorney, and D. Michael Littlefield, Assistant United States Attorney, withhim on the brief) for PlaintiffAppellant. Michael A. Abel, Assistant Federal Public Defender, (Stephen J. Knorr, Federal Public Defender, with him on the brief), Tulsa, Okl ahoma, for DefendantAppellee.

Before TACHA , Chief Judge, andSEYMOUR , BRORBY , EBEL , KELLY , HENRY , BRISCOE , LUCERO , andMURPHY , Circuit Judges.* Parts I and II of Judge Ebel’s opinion represent th e en banc opinion of this

court with the exception of a caveat noted in Judge Henry’s concurrence. Parts I and II of Judge Briscoe’s opinion also represent th e en banc opinion of this court. Part III of Judge Ebel’s opinion represents only th e opinion of Chief Judge Tacha and Judges Brorby, Ebel, and Kelly. Parts III and IV of Judge Briscoe’s opinion represent only the opinion of Judges Seymour, Brisc oe, Lucero, and Murphy. Judge Henry has filed a separate concurrence joinin g Parts I and II of Judge Ebel’s opinion with a caveat and Parts I and II of Judge Briscoe’s opinion. Judge Kelly has filed a separate opinion joining Judge Eb el’s opinion. Judge Lucero, joined by Judge Seymour, has filed a separate opini on joining Judge Briscoe’s opinion. Judge Murphy has filed a separate opinion joining Judge Briscoe’s opinion. -2- PER CURIAM *

After a divided panel affirmed the district court’s suppression of evidence obtained during a search of the defendant’s car inc ident to a traffic stop, see United States v. Holt , 229 F.3d 931 (10th Cir. 2000), this court grantedrehearing en banc on the following questions: (1) whether the Fourth Amendment constrains the scope, as well as the duration, of atraffic stop, and (2) whether an officer conducting a traffic stop may ask the drive r about the presence of weapons in the absence of reasonable suspicion thatthe driver is armed and dangerous. Consistent with the panel opinion, a ma jority of this court concludes that the analytical framework set forth in Terry v. Ohio , 392 U.S. 1 (1968), applies to traffic stops, and that Terryrequires an analysis of both the scope and duration of a stop to determine whether the stop co mports with the Fourth Amendment. In contrast to the original panel opini on, however, a majority of** Parts I and II of this opinion are joined by Chief Judge Tacha and Judges

Brorby, Kelly and Henry (subject to a caveat noted in Judge Henry’s concurrence). Thus, Parts I and II represent the m ajority opinion of the en banc court, subject to Judge Henry’s caveat. -3- this court concludes that an officer conducting a t raffic stop may ask the driver about the presence of loaded weapons in the absence of particularized suspicion of the existence of such firearms. As a result, we VACATE the panel opinion, REVERSE the district court’s suppression orders and REMAND the case to the distr ict court for further proceedings, consistent with Parts I and II of Judg e Ebel’s opinion (subject to the caveat contained in Judge Henry’s concurrence) and Parts I and II of Judge Briscoe’s opinion.

EBEL , Circuit Judge. **

We granted en banc rehearing in this case to deline ate the scope of permissible questioning during a routine traffic st op. We hold that the officer’s question about the existence of a loaded weapon in the vehicle was justified on the grounds of officer safety. During a routine tr affic stop, an officer may ask the stopped motorist whether there is a loaded firearm in the car even in the absence of particularized suspicion of the existence of suc h a firearm. The objective1 Many of the details of this traffic stop are set fo rth in the original panel

opinion, United States v. Holt , 229 F.3d 931 (10th Cir. 2000).

2 Holt did not fully challenge the legality of the c heckpoint below. We merely note, without drawing any conclusions, that City of Indianapolis v. Edmond , 121 S. Ct. 447 (2000), was decided by the Supreme Court of the United States after the district court ruling in this case . Although Holt asserts an Edmond challenge in his Supplemental Brief, we do not bel ieve the factual record is sufficiently developed to reach the issue . The parties remain free to (continued...) -4- safety risks to officers during routine traffic sto ps in general have led courts to approve reasonable steps to insure officer safety, including asking the driver and passengers of a stopped car to exit the vehicle andconducting routine criminal history checks. These safety risks also justify li mited questions about the presence of loaded weapons. Thus, we reverse the s uppression of the answer given as to the presence of a loaded weapon in the vehicle and remand for further proceedings.

BACKGROUND 1 On the evening of September 15, 1999, officers fromthe Muldrow, Oklahoma police department, accompanied by Damon Tu cker, an Oklahoma Highway Patrol officer, established a driver’s lice nse checkpoint on Treat Road within the city limits of Muldrow. The admitted impetus for establishing a checkpoint at this location was the officers’ suspi cion that the defendant, Dennis Holt, who lived in the area, was transporting illeg al drugs along Treat Road. 22 (...continued)

address Edmond on remand. -5- At the checkpoint, the officers stopped all vehicle s traveling along Treat Road and checked all drivers’ licenses. At approxi mately 10:30 p.m., Tucker observed a Ford Ranger truck approach the checkpoint. Tucker noted that the driver of the truck, defendant Holt, was not wearin g a seatbelt. After asking to see Holt’s driver’s license, Tucker asked Holt why he was not wearing a seatbelt. Holt stated that he lived in the area and pointed t oward his house. At some point thereafter, officers from the Muldrow police department informed Tucker that Holt was the person they were seeking. Tucker aske d Holt to pull over to the side of the road, exit his vehicle, and join Tucker in h is patrol car. After Holt got into the patrol car, Tucker asked fo r Holt’s driver’s license and proceeded to write a warning for the seatbelt v iolation. While doing so, Tucker asked Holt if “there was anything in [Holt’s ] vehicle [that Tucker] should know about such as loaded weapons.” According to T ucker, he asks that question “on a lot of [his] stops.” Holt stated there was aloaded pistol behind the passenger seat of his vehicle. Holt did not indicate whether he had a permit to carry a loaded gun (Oklahoma law requires a person carrying a permitted weapon immediately to disclose that fact when stopped by a n officer), and Tucker did not ask whether Holt possessed such a permit. Tucker then asked Holt if “there was-6-

anything else that [Tucker] should know about in th e vehicle.” Holt stated, “I know what you are referring to” but “I don’t use th em anymore.” Upon further questioning by Tucker, Holt indicated that he had p reviously used drugs, but “hadn’t been involved with them in about a year or so.” At that point, Tucker asked Holt for consent to search his vehicle. Holtagreed. The district court found that Tucker had not yet issued the warning to Holt for the seatbelt violation at that point, and it is undisputed that Tucker sti ll had Holt’s driver’s license in his possession during all the above-outlined questi oning. According to Tucker, approximately three to four minutes elapsed betweenthe time he and Holt got into the patrol car and the time Holt consented to the s earch of his vehicle. Tucker and Holt then got out of the patrol car and Tucker again asked Holt if there was anything else in the vehicle. Holt re sponded that the gun was all Tucker would find. Tucker proceeded to search the cab of the truck and found a loaded pistol behind the passenger seat. One of th e Muldrow police officers, when informed by Tucker that Holt had given consentto have his vehicle searched, began looking through the camper shell onthe back of the truck. During the course of his search, this officer founda small bag containing spoons, syringes, loose matches, and two small baggies of awhite powdery substance. Based upon the discovery of this evidence, Tucker arrested Holt and transported him to the Muldrow jail.-7-

Shortly after Holt’s arrest, Tucker contacted an as sistant district attorney for Sequoyah County regarding the possibility of ob taining a search warrant for Holt’s residence based upon the evidence recovered from Holt’s vehicle. The assistant district attorney concluded the evidence was not sufficient to support a search warrant for Holt’s residence. He did, howev er, advise Tucker to utilize “a knock and talk” technique. In accordance with this advice, police officers went to Holt’s residence, and Holt’s mother gave verbal con sent to search the premises. During the search, officers found chemical glasswar e in a room where Holt stayed, as well as drugs and various drug-making eq uipment in an outbuilding. Holt was indicted on October 14, 1999, on two count s of possession of methamphetamine with intent to distribute in violat ion of 21 U.S.C. § 841(a), one count of manufacturing methamphetamine in violationof 21 U.S.C. § 841(a), and one count of possession of a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c). Holt moved to suppress his responses to Tucker’s questions and the evidence seized from his vehicle. The district court held an evidentiary hearing on t he motion at which both Tucker and Holt testified. The district court subs equently issued a written order granting the motion to suppress. Shortly thereafte r, Holt filed a supplemental motion to suppress the evidence seized from his res idence. That motion was granted by the district court pursuant to the government’s concession that3 Because the search of the house was predicated on c onsent by Holt’s

mother, it is not apparent from the record before u s why the evidence obtained from the search necessarily had to be suppressed if the evidence obtained from the search of the car was suppressed. However, forthe purpose of this appeal we accept the government’s concession in that regard. If appropriate, this matter can be explored upon remand. -8- evidence obtained from the house should be suppress ed if evidence obtained from the car was suppressed. 3 The government now brings an interlocutory appeal challenging the suppression of the loaded gun, the drug paraphernalia found in the car and at the residence, and Holt’s statements ack nowledging his possession of a loaded gun and his prior drug use.

DISCUSSION In reviewing a district court order granting a moti on to suppress, we accept the district court’s factual findings unless clearl y erroneous, and we view the evidence in the light most favorable to those findi ngs. United States v. Caro , 248 F.3d 1240, 1243 (10th Cir. 2001). We review de nov o the ultimate determination of Fourth Amendment reasonableness. Id.

I. GENERAL PRINCIPLES The Fourth Amendment protects individuals from “unr easonable searches and seizures.” U.S. Const. amend. IV. “A traffic stop is a ‘seizure’ within the-9-

meaning of the Fourth Amendment, even though the pu rpose of the stop is limited and the resulting detention quite brief.” United S tates v. Hunnicutt , 135 F.3d 1345, 1348 (10th Cir. 1998) (quoting Delaware v. Pr ouse , 440 U.S. 648, 653 (1979) (internal quotation marks omitted)). The touchstone of our analysis under the Fourth Ame ndment is always the reasonableness in all the circumstances of the particular invasion of a citizen’s personal security. Reasonableness, of course, depends on a balance between the public interest an d the individual’s right to personal security free from arbitrary inte rference by law officers. Pennsylvania v. Mimms , 434 U.S. 106, 108-09 (1977) (per curiam) (quotati on marks and citations omitted); see also Illinois v. McArthur , 121 S. Ct. 946, 950 (2001) (“[W]e balance the privacy-related and law e nforcement-related concerns to determine if the intrusion was reasonable.”); Ne w York v. Class , 475 U.S. 106, 116 (1986) (balancing “the need to search or seize against the invasion which the search or seizure entails” (brackets omitted) (quot ing Terry , 392 U.S. at 21)). We generally disfavor bright-line rules in the Fourth Amendment context, relying instead on this basic balancing test. See Ohio v. Robinette , 519 U.S. 33, 39 (1996); United States v. Broomfield , 201 F.3d 1270, 1274 (10th Cir. 2000), cert. denied , 531 U.S. 830 (2000). No one factor is determinat ive in this analysis; instead, reasonableness is “measured in objective t erms by examining the totality of the circumstances.” Robinette , 519 U.S. at 39. In considering the individualrights side of the balance, we consider the individ ual’s reasonable expectations of-10-

privacy and liberty. See Romo v. Champion , 46 F.3d 1013, 1018 (10th Cir. 1995); United States v. Seslar , 996 F.2d 1058, 1063 (10th Cir. 1993); United States v. Mesa-Rincon , 911 F.2d 1433, 1442 (10th Cir. 1990). We have consistently applied the principles of Terry v. Ohio , 392 U.S. 1 (1968), to routine traffic stops. See, e.g. , United States v. Botero-Ospina , 71 F.3d 783, 788 (10th Cir. 1995) (en banc). Under Terry , the reasonableness of a search or seizure depends on “whether the officer’s actionwas justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” 39 2 U.S. at 20. Thus, we assess the reasonableness of a traffic stop based on an observ ed violation by considering the scope of the officer’s actions and balancing the mo torist’s legitimate expectation of privacy against the government’s law-enforcement -related interests. For example, when stopped for a traffic violation, a motorist expects “to spend a short period of time answering questions an d waiting while the officer checks his license and registration.” Berkemer v. McCarty , 468 U.S. 420, 437 (1984). At the same time, the government has a str ong interest in ensuring that motorists comply with traffic laws. See Whren v. United States , 517 U.S. 806, 818 (1996) (noting the “usual rule that probable cause to believe the law has been broken ‘outbalances’ private interest in avoiding p olice contact”). Thus, it is beyond dispute that an officer may ask questions re lating to the reason for the-11-

stop. Ordinarily, this also includes questions rel ating to the motorist’s travel plans. See, e.g. , United States v. West , 219 F.3d 1171, 1176 (10th Cir. 2000); United States v. Rivera , 867 F.2d 1261, 1263 (10th Cir. 1989); United States v. Hill , 195 F.3d 258, 268 (6th Cir. 1999), cert. denied , 528 U.S. 1176 (2000); United States v. $404,905.00 , 182 F.3d 643, 647 (8th Cir. 1999). Travel plans typically are related to the purpose of a traffic s top because the motorist is traveling at the time of the stop. For example, a motorist’s travel history and travel plans may help explain, or put into context, why the motorist was weaving (if tired) or speeding (if there was an urgency to the travel). See, e.g. , United States v. Barahona , 990 F.2d 412, 416 (8th Cir. 1993). It is also well established that an officer may askabout the driver’s authority to operate the vehicle. Thus, we have re peatedly stated that during a routine traffic stop the officer may ask to see a d river’s license and registration and check that they are valid. See, e.g. , United States v. Caro , 248 F.3d 1240, 1244 (10th Cir. 2001). On the other hand, motorists ordinarily expect to b e allowed to continue on their way once the purposes of a stop are met. See Berkemer , 468 U.S. at 437. The government’s general interest in criminal inves tigation, without more, is generally insufficient to outweigh the individual i nterest in ending the detention. Thus, once the motorist has “produced a valid licen se and proof that he is entitled-12-

to operate the car, he must be allowed to proceed o n his way, without being subject to further delay by police for additional questioning.” United States v.
Guzman , 864 F.2d 1512, 1519 (10th Cir. 1988), overruled o n other grounds byBotero-Ospina , 71 F.3d at 785. Further delay is justified only if the officer has reasonable suspicion of illegal activity or if the encounter has become consensual

. Hunnicutt , 135 F.3d at 1349.

II. QUESTIONS ABOUT LOADED WEAPONS As with questions about the observed violation and the driver’s authority to operate the vehicle, a motorist expects an offic er to take reasonable measures to protect officer safety during the stop. When th ese measures are not too intrusive, the government’s strong interest in offi cer safety outweighs the motorist’s interests. Thus, for example, the motor ist may be detained for a short period while the officer runs a background check to see if there are any outstanding warrants or criminal history pertaining to the motorist even though the purpose of the stop had nothing to do with suchprior criminal history. The justification for detaining a motorist to obtain a criminal history check is, in part, officer safety. See, e.g. , United States v. McRae , 81 F.3d 1528, 1535 n.6 (10th Cir. 1996) (“Triple I checks are run largely to pro tect the officer. Considering the tragedy of the many officers who are shot during ro utine traffic stops . . . , the-13-

almost simultaneous computer check of a person’s cr iminal record . . . is reasonable and hardly intrusive.”); United States v . Purcell , 236 F.3d 1274, 1278 (11th Cir. 2001) (“The request for criminal histori es as part of a routine computer check is justified for officer safety.”); United St ates v. Finke , 85 F.3d 1275, 1280 (7th Cir. 1998) (“The results of a criminal historycheck could indicate whether further back-up or other safety precautions were ne cessary.”). By determining whether a detained motorist has a criminal record o r outstanding warrants, an officer will be better apprized of whether the deta ined motorist might engage in violent activity during the stop. An officer also may order the driver and passengers out of the vehicle in the interest of officer safety, even in the absence of any particularized suspicion of personal danger. Maryland v. Wilson , 519 U.S. 408, 415 (1997); Pennsylvania v. Mimms , 434 U.S. 106, 111 (1977). While a motorist retai ns some reasonable expectation of privacy when officer safety is at stake, cf. Knowles v. Iowa , 525 U.S. 113, 117 (1998) (rejecting the argument that o fficer safety justifies a full field-type search during a routine traffic stop), the motorist’s expectations are necessarily diminished. In this case, Holt’s reasonable expectations of pri vacy are even lower with respect to his concealed weapon. Under Oklahoma law, it is unlawful for any person to fail or refuse to identi fy the fact that the person is in actual possession of a concealed handg un pursuant to-14-

the authority of the Oklahoma Self-Defense Act when the person first comes into contact with any law enforcement o fficer . . . during the course of any . . . routine traffic stop. Okla. Stat. Ann. tit. 21, § 1290.8(C). Holt testified at the suppression hearing that he did not have a concealed-handgun permit. T hus, he was not under this statutory obligation to volunteer the presence of t he gun when he was stopped. The above-quoted statute nevertheless remains relev ant to determining reasonable expectations of privacy in Oklahoma. Oklahomans wh o lawfully possess concealed weapons have no expectation of privacy th at society would recognize as reasonable in the fact that they are carrying co ncealed weapons, because they are required by law to disclose that fact. It woul d make little sense for Oklahoma society nevertheless to recognize as reasonable the privacy expectations of those who illegallypossess concealed weapons in not revealing that in formation. Holt therefore had no reasonable expectation (that is, n o expectation that Oklahoma society would recognize as reasonable) of keeping p rivate the fact he was carrying a loaded weapon behind the passenger seat of his ve hicle. Cf. United States v. Villa-Chaparro , 115 F.3d 797, 802 (10th Cir. 1997) (a driver has no expectation of privacy in the Vehicle Identification Number due to the federal requirement that it be located in plain view). While the individual-privacy-interests side of the Fourth Amendment balancing is weaker in this context, the government al-interests side is much-15-

stronger. The Supreme Court has found it “too plai n for argument” that the government’s interest in officer safety is “both le gitimate and weighty,” given the “inordinate risks confronting an officer as he appr oaches a person seated in an automobile.” Mimms , 434 U.S. at 110. Other courts have also recogniz ed that “[l]aw enforcement officials literally risk their l ives each time they approach occupied vehicles during the course of investigativ e traffic stops.” United States v. Stanfield , 109 F.3d 976, 978 (4th Cir. 1997); see also McRae , 81 F.3d at 1536 n.6 (noting the “tragedy of the many officers who a re shot during routine traffic stops each year”). In Maryland v. Wilsonthe Supreme Court noted that in 1994 alone, 5,762 officers were assaulted and 11 were killed during traffic pursuits and stops. 519 U.S. at 413 (citing Federal Bureau of Investigation , Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted71, 33 (1994)). Thirty percent of police shootings occurred when a police officer app roached a suspect seated in an automobile, and “‘a significant percentage of murde rs of police officers occurs when the officers are making traffic stops.’” Mimm s , 434 U.S. at 110 (quoting United States v. Robinson , 414 U.S. 218, 234 (1973)). The most recent data reveal that in 1999, 6,048 officers were assaulted during traffic pursuits and stops and 8 were killed. See Federal Bureau of Investigation, Uniform Crime Rep orts: Law Enforcement Officers Killed and Assaulted82, 28 (1999). More than 34%-16-

of those assaults involved a dangerous weapon such as a gun or knife. Id. at 83. Firearms were used to commit 82 of the 94 killings of law enforcement officers during traffic pursuits and stops during the 1990s. Id. at 34. The terrifying truth is that officers face a very r eal risk of being assaulted with a dangerous weapon each time they stop a vehic le. The officer typically has to leave his vehicle, thereby exposing himself to p otential assault by the motorist. The officer approaches the vehicle not knowing who the motorist is or what the motorist’s intentions might be. It is precisely du ring such an exposed stop that the courts have been willing to give the officers “ wide latitude,” Stanfield , 109 F.3d at 978, to discern the threat the motorist maypose to officer safety. An officer in today’s reality has an objective, rea sonable basis to fear for his or her life every time a motorist is stopped. Every traffic stop, after all, is a confrontation. The motorist must suspend his or he r plans and anticipates receiving a fine and perhaps even a jail term. That expectation becomes even more real when the motorist or a passenger knows th ere are outstanding arrest warrants or current criminal activity that may be d iscovered during the course of the stop. Resort to a loaded weapon is an increasi ngly plausible option for many such motorists to escape those consequences, and th e officer, when stopping a car on a routine traffic stop, never knows in advance w hich motorists have that option by virtue of possession of a loaded weapon in the c ar.-17-

In balancing the interests in this case, we are gui ded by other situations in which federal courts have allowed considerations of officer safety to outweigh fairly intrusive conduct during a traffic stop. Th us, during a routine traffic stop, an officer may order the driver and passengers out of the vehicle, Mimms , 434 U.S. at 110; Wilson , 519 U.S. at 415; order the passengers to remain i n the vehicle, Rogala v. District of Columbia , 161 F.3d 44, 53 (D.C. Cir. 1998); open the door of a vehicle with darkly tinted windows to check for weapons, Stanfield , 109 F.3d at 981; order the occupants to raise theirhands during the stop, United States v. Moorefield , 111 F.3d 10, 13 (3d Cir. 1997); and use a flashli ght to check the dark interior of a car, Texas v. Brown , 460 U.S. 730, 739-40 (1983) (plurality opinion). In addition to information about loaded weapons that the officer may obtain from visually looking in the car, shining a light a round the interior of the car, or asking the motorist and occupants to step out of th e car or to keep their hands raised – all procedures authorized by the courts inthe name of officer safety – an officer may also obtain information about the exist ence of a loaded weapon by simply asking the motorist if there is a loaded weapon in the vehicle. Indeed, straightforwardly asking this question is often les s intrusive than many of the procedures authorized by our sister circuits.-18-

If a motorist volunteers that there is a loaded weapon in the car, that will undeniably be an important piece of information cau sing the officer to proceed with greater caution. It was suggested during oral argument in the en banc rehearing that a motorist with a loaded gun is unli kely to admit that fact. The facts of this case somewhat belie that argument. H ere, when asked that question, Holt freely admitted the presence of a loaded gun. Other cases present similar situations in which defendants either volunteered o r truthfully responded that they possessed weapons. See, e.g. , United States v. Cain , 155 F.3d 840, 842 (7th Cir. 1998); United States v. Patterson , 140 F.3d 767, 771 (8th Cir. 1998); United
States v. Maza , 93 F.3d 1390, 1395 (8th Cir. 1996); United States v. Castellana , 500 F.2d 325, 326 (5th Cir. 1974) (en banc); Burris v. State , 954 S.W.2d 209, 211 (Ark. 1997); State v. Hill , 577 N.W.2d 259, 262 (Neb. 1998). Even in those cases where the motorist falsely deni es the presence of a loaded gun, allowing the officer to ask the questio n may provide important clues pertaining to safety. Officers have become skilled at detecting nervous or evasive responses from which the officer may gain valuable clues about a motorist’s intentions. Thus, even a denial may alert the offi cer that the denial may not be truthful and thus that the officer should take greater care. A third possibility is that the motorist may declin e to answer the question. That, too, conveys information relevant to the offi cer’s personal safety. Although-19-

nothing compels the motorist to answer such a quest ion, when a motorist declines to answer it, the officer may draw clues from that declination that he or she should be more prudent and concerned about personal safety. The officer may not use the refusal to answer as the basis for a more i ntrusive search, but the officer would certainly be permitted to use that informatio n to justify prudent safetyrelated measures. Thus, any response the officer receives in response to this question will be helpful in appraising the risk presented more accur ately. We therefore conclude that allowing officers to ask about the presence of loaded weapons in a lawfully stopped vehicle will promote the government’s “legi timate and weighty” interest in officer safety. If a motorist offers a voluntary response to a ques tion regarding the presence of a loaded gun, the response could be use d just like any other voluntary admission made during a traffic stop. If the admis sion reveals a crime the officer can act accordingly, as is always the case when the officer is aware of a crime taking place. If the motorist declines to answer the question, however, the officer could not, in the absence of particularized suspicion, take any legal action (other than reasonable actions for personal safety) based on that refusal. Because it is within a motorist’s right to refuse to answer , ordinarily no inference of guilt can be drawn from that refusal and any further dete ntion must be supported by-20-

reasonable suspicion or probable cause. Cf. Berkemer , 468 U.S. at 439-40 (“[T]he detainee is not obligated to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest h im, he must then be released.” (footnotes omitted)); Terry , 392 U.S. at 34 (White, J., concurring) (“Of cours e, the person stopped is not obligated to answer, answ ers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.”). Although Holt was not in his vehicle when Officer T ucker asked about loaded weapons, this does not eviscerate the safety rationale for the question. By ordering Holt to sit in the patrol car during the s top, Tucker had temporarily neutralized the risk posed by a weapon in Holt’s ve hicle. But with the stop nearing completion, Officer Tucker reasonably expec ted that Holt was about to return to his vehicle and once again would have acc ess to any weapons in it. It was at this point that Tucker asked about loaded we apons in the vehicle, and the safety rationale is plain. The Supreme Court has h eld that the entire interior of a vehicle is treated as within a motorist’s immediate control and therefore falls within the scope of a search incident to arrest, ev en after the motorist has been ordered out of the vehicle and placed under arrest. New York v. Belton , 453 U.S. 454, 462 (1981). A search incident to arrest is justified in part on the basis of officer safety. Id. at 457. If the interior of the vehicle is relevant to of ficer4 Holt cites Officer Tucker’s testimony that he “d[id]n’t remember feeli ng

threatened” by Holt. We believe this statement may have been t aken out of context. Tucker was discussing whether he had made a show of authority (e.g., touching his gun) while Holt was seated in the patrol car . Tucker said he did not because he had no reason to fear Holt at that time . Thus, Tucker’s statement does not address whether he feared danger when Holtreturned to his car, which is the relevant question, as noted above. The reco rd is silent on the subjective fear question in the context of Holt’s return to hi s own car, but in any event, the subjective question is not controlling. -21- safety in a case like Belton , where the arrestee is unlikely to return to the v ehicle, then it is all the more so relevant here, where the motorist is almost certain to

return. We emphasize also that the balance does not depend on whether the officer subjectively fears the motorist. 4 Subjective intentions rarely play a role in Fourth Amendment analysis. See Whren v. United States , 517 U.S. 806, 811-13 (1996). In the context of officer safety in particular, the Supreme Court has relied on an objective view of the circumstances. See, e.g. , Ohio v. Robinette , 519 U.S. 33, 38 (1996) (holding that objective circumstances during a traffic stop allow an officer to order a driver out of the car, “subjective thoug hts notwithstanding”). Similarly, the availability of a “search incident t o arrest” for officer safety does not depend on the subjective mindset of the arresti ng officer. United States v. Robinson , 414 U.S. 218, 236 & n.7 (1973). As the Supreme C ourt has explained in the context of the “public safety” exception to Mirandawarnings,5 This case involves only a simple question about the presence of a loaded

gun in a vehicle during a routine traffic stop. We do not in this case attempt to address other situations where the balance might co me out differently. Of course, any questioning that unreasonably extends the durat ion of the stop must be justified by additional articulable suspicion or pr obable cause. -22- [T]he availability of [the public-safety] exception does not depend upon the motivation of the individual officers invo lved. . . . [It] should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officers. Undoubtedly, most police officers . . . would act out of a host of different, instinctive, and largely unverif iable motives – their own safety, the safety of others, and perhaps as we ll the desire to obtain incriminating evidence from the suspect. Whatever the motivation of individual officers in s uch a position, we do not believe the doctrinal underpinn ings of Miranda require that it be applied in all its rigorto a situation in which police officers ask questions reasonably prompted by a concern for the public safety. New York v. Quarles , 467 U.S. 649, 655-56 (1984) (footnote omitted). That one officer is braver (or more foolhardy) than another, and therefore not subjectively concerned for his or her safety, should not deprive that particular officer of a right to protect his or her safety. Even the brave officer should be allowed to minimize the ever-present risk of being attacked orkilled. Given the dangers inherent in all traffic stops, we hold that the government’s interest in officer safety outweighs amotorist’s interest in not being asked about the presence of loaded weapons. 5 This balance tips in the government’s favor even when the officer lacks part icularized suspicion that the motorist possesses loaded weapons and regardless of whether the officer6 In United States v. Lee , 73 F.3d 1034, 1039 (10th Cir. 1996), we found an

officer’s question about firearms during a routine traffic stop was “unrelated to his underlying justification for the detention.” T hat case did not address an officer-safety justification for the question; however, to the extent Lee or any of our other precedent conflict with the rule we annou nce today, we expressly overrule them.

7 This Part III represents only the views of Chief Ju dge Tacha and Judges Brorby, Ebel, and Kelly. -23- subjectively fears the motorist. Accordingly, the district court erred in suppressing Holt’s response to this question. There are surprisingly few cases addressing this qu estion in other jurisdictions, but the several federal circuit case s confronting this issue seem generally to support our conclusion. See, e.g. , Maza , 93 F.3d at 1396-97 (finding “nothing improper” in an officer’s questioning whether there were guns in a truck, although without any discussion of the const itutional issues); United States v. May , No. 98-3113, 1999 WL 1215651, at *3 (D.C. Cir. No v. 8, 1999) (unpublished) (“Certainly . . . the Fourth Amendment . . . permits an officer to ask simply whether a driver has a gun.”), cert. denied , 529 U.S. 1011 (2000). 6

III. QUESTIONS NOT RELATED TO OFFICER SAFETY 7 Officer Tucker’s first question to Holt was whetherthere was anything in the vehicle Tucker should know about, such as loade d weapons. As explained above, this question was justified by consideration s of officer safety. The district-24-

court therefore erred in suppressing Holt’s respons e to this question. The district court also suppressed Holt’s responses to the subse quent questioning and the evidence seized during the searches of the vehicle and later the house, and the officer-safety rationale does not necessarily exten d to these other matters. The government has asked for a broader rule that du ring a routine traffic stop, the officer may ask any questions so long as they do not lengthen the stop or transform it into a full custodial arrest. Cf. United States v. Shabazz , 993 F.2d 431, 436 (5th Cir. 1993) (“[D]etention, not questio ning, is the evil at which Terry ’s second prong is aimed.”). Under this rule, the government argues, all of Officer Tucker’s questioning was appropriate and th e suppression orders should be reversed in their entireties. Because the factu al record is not sufficiently developed at present, however, I would decline to a ddress this issue. I would find it more prudent to vacate the portions of the panel opinion in this case discussing the issue and to leave its resolution in this case for a later time after it is more fully developed factually. According to Officer Tucker’s testimony at the supp ression hearing, the following took place after Holt admitted he had a l oaded weapon in his vehicle. Tucker asked if there was anything else he should k now about in the vehicle, and Holt mentioned that he did not use drugs anymore. Tucker then questioned Holt-25-

further about his drug history and habits and final ly asked for consent to search, which Holt gave. The total conversation was no mor e than three to four minutes. There are a number of unresolved issues that might affect our analysis of this questioning. First, it is somewhat unclear wh ether Officer Tucker raised the issue of drugs or whether Holt broached the topic o n his own. Tucker’s second question – if there was anything else he should kno w about in the vehicle – appears on its face to be an appropriate follow-up question to the one about weapons we have approved, and therefore might also be justified on the grounds of officer safety. In context, however, it might b e seen as fishing for information about Holt’s unrelated drug activity, which likely had no reasonable relationship to officer safety. Second, assuming that Holt rais ed the drug issue himself, it is unclear whether his response created a reasonable s uspicion of criminal activity that would itself justify further detention and que stioning. Third, the record does not resolve clearly whether the subsequent question ing lengthened the stop or whether all of it took place while Officer Tucker w as preparing the warning. Finally, we cannot tell whether the questions aboutdrugs, which did not prompt any incriminatory responses, had any effect on the subsequent course of action – in particular, whether they affected the requests f or consent to search the vehicle and later the house.-26-

Given these uncertainties, I believe we could addre ss the government’s broader argument only as an abstract matter. We li kely would not need to address the issue at all if, for example, Officer T ucker had reasonable suspicion to support his questions. See Hunnicutt , 135 F.3d at 1349. It might also be unnecessary if Holt’s consent to search the vehicle was untainted by any Fourth Amendment violation from the drug questions. See United States v. Walker , 933 F.2d 812, 817 (10th Cir. 1991). Rather than specul ate about the constitutionality of further questioning in the abstract, I would rem and to the district court to develop an adequate factual record. That court wou ld also be able to rule on any remaining Fourth Amendment issues in the first inst ance. I would resolve the broader issues when they are framed appropriately and it is necessary to do so, whether in a later appeal in this case or in a more appropriate case.1 Parts I and II of Judge Briscoe's opinion represe nt the en banc opinion of

this court. Parts III and IV of Judge Briscoe's op inion represent only the opinion of Judges Seymour, Briscoe, Lucero, and Murphy. No. 99-7150, United States v. Holt
BRISCOE , Circuit Judge: 1
We continue to adhere to the conclusions reached in the original panel opinion. First, we reject the government's primaryen banc argument and conclude that both the length and scope of a traffi c stop are relevant factors in deciding whether the stop comports with the Fourth Amendment. Second, we reject the government's request to adopt a bright-l ine rule allowing an officer conducting a traffic stop to ask a driver about the presence of loaded weapons in the absence of reasonable suspicion that the drivermay be armed and dangerous. We would reverse the suppression order of the distr ict court and remand with directions to the court to conduct an evidentiary h earing to determine whether defendant Holt's consent to search his vehicle was tainted by the officer's improper questioning about weapons.
I. In reviewing an order granting a motion to suppress , we accept the district court’s factual findings unless clearly erroneous, review questions of law de novo, and view the evidence in the light most favor able to the prevailing party.
See United States v. Iiland , 254 F.3d 1264, 1268 (10th Cir. 2001); United Stat es v. Caro , 248 F.3d 1240, 1243 (10th Cir. 2001).2 We note at the outset that Holt was never asked any questions regarding

his travel plans. Therefore, we do not address whe ther questions regarding travel (continued...) -2- II. The Fourth Amendment protects individuals from unre asonable searches and seizures. See U.S. Const. amend. IV. “A traffic stop is a ‘seiz ure’ within the meaning of the Fourth Amendment, ‘even though the p urpose of the stop is limited and the resulting detention quite brief.’” United States v. Hunnicutt , 135 F.3d 1345, 1348 (10th Cir. 1998) (quoting Delaware v. Prouse , 440 U.S. 648, 653 (1979)). Because a routine traffic stop is mor e analogous to an investigative detention than a custodial arrest, we have routinel y analyzed such stops under the framework announced in Terry v. Ohio , 392 U.S. 1 (1968). E.g. , Hunnicutt , 135 F.3d at 1348. Under Terry , we determine the reasonableness of a search or seizure by conducting a “dual inquiry, asking first‘whether the officer’s action was justified at its inception,’ and second ‘whethe r it was reasonably related in scope to the circumstances which justified the inte rference in the first place.’” Id. (quoting Terry , 392 U.S. at 20). The first prong of Terryis clearly satisfied in this case because there is no dispute that Tucker s aw Holt driving without a seatbelt. Thus, our focus is on the second prong o f the Terryinquiry, i.e., whether Tucker’s questioning of Holt regarding the presence of weapons in his vehicle was reasonable. 22 (...continued)

plans are “reasonably related” to the scope of this or any stop.

3 If the government were to retain any viability to the “scope” limitation of Terry it would only be in the ill-defined sense that the questioning could not become so intrusive as to change the fundamental ch aracter of the stop. -3- Citing a line of cases from other courts, most notably United States v. Shabazz , 993 F.2d 431 (5th Cir. 1993), the government argu es that during a traffic stop based on probable cause, length is the only constraint on questioning. The government argues that, as long as the officer’ s interrogation does not unreasonably extend the length of the stop, the Fou rth Amendment is not implicated. In short, the government asks us to ab andon the “scope” limitations of Terryand look only to the duration of the stop. In the government’s view, the nature of the questions asked is immaterial to the Fourth Amendment, at least as long as it does not change the “fundamental charact er” of the seizure from a Terrystop to a full custodial arrest. 3
In Shabazz , police officers stopped a vehicle for speeding. One officer asked the driver to get out of the vehicle and prod uce his driver’s license. While the officer ran a computer check on the license, he asked the driver a series of questions about his recent whereabouts. During the same time period, a second officer posed similar questions to the driver’s companion, who remained in the vehicle. After comparing notes and determining the y had been given conflicting stories, the officers sought and received consent t o search the vehicle. Drugs4 The Seventh Circuit recently rejected Shabazz as well, characterizing it

as the only circuit decision refusing to acknowledg e that “when a police officer questions someone during a routine traffic stop, in quiries falling outside the scope of the detention constitute unlawful seizure.” United States v. Childs , 256 F.3d 559, 564 and n.1 (7th Cir. 2001). -4- were found inside the vehicle and both the driver and the occupant were charged and convicted on drug-related counts. On appeal, t hey argued that the officers exceeded the reasonable scope of the original purpo se of the stop when they questioned them about their recent whereabouts. Th e Fifth Circuit rejected this argument. In doing so, the court “reject[ed] any n otion that a police officer’s questioning, even on a subject unrelated to the purpose of the stop, is itself a Fourth Amendment violation.” 993 F.2d at 436. Further, the court noted that the questioning at issue “occurred while the officers w ere waiting for the results of the computer check” and thus “did nothing to extend the duration of the initial, valid seizure.” Id. at 437. In sum, the Fifth Circuit effectively hel d that questioning by an officer, even on matters unrelate d to the purpose of the detention itself, does not cause a detention to bec ome more intrusive unless the questioning extends the duration of the detention. We find the holding in Shabazz unpersuasive. 4 In reaching its conclusion, the Fifth Circuit relied heavily on the Supreme Cou rt’s statement in Florida v. Bostick , 501 U.S. 429, 434 (1991), that “mere police quest ioning does not constitute a seizure.” The problem with this state ment is that it was made by the5 Because Tucker had possession of Holt’s driver’s license, the

questioning clearly occurred during a nonconsensual encounter between Tucker and Holt. See United States v. Mendez , 118 F.3d 1426, 1430 (10th Cir. 1997) (“[T]his circuit has consistently applied at least one bright-line rule [in determining whether an officer and driver are engag ed in a consensual encounter]: an officer must return a driver’s docum entation before the detention can end.”). -5- Court in the course of determining whether random q uestioning of bus passengers by police constituted a “seizure” for purposes of t he Fourth Amendment (the Court ultimately determined such encounters are con sensual and thus are not “seizures”). The Court did not address the issue p osed in Shabazz and this case, i.e., whether, in the context of a nonconsensual po lice-citizen encounter, police questioning on matters unrelated to the purposes of the initial stop can be so intrusive as to violate the Fourth Amendment. 5 Although the Court has not directly addressed the issue we now face, it has, i n applying the Terryanalysis, routinely employed language indicating there are li mitations on both the length of the detention and the manner in which it is carriedout (what I refer to here as the “scope” or “breadth” of the detention). For exampl e, in Florida v. Royer , 460 U.S. 491, 500 (1983), the Court emphasized that “th e investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time .” The Court further emphasized it was the government’s burden to demons trate that an investigative detention “was sufficiently limited in scope and du ration .” Id. (emphasis added);-6-

see also Illinois v. McArthur , 121 S. Ct. 946, 950 (2001) (“[T]he restraint at issue was tailored to that need, being limited in t ime and scope .”) (emphasis added); United States v. Sharpe , 470 U.S. 675, 690 (1985) (“Even a stop that lasts no longer than necessary to complete the inve stigation for which the stop was made may amount to an illegal arrest if the sto p is more than ‘minimally intrusive.’”) (Marshall, J., concurring); United St ates v. Hensley , 469 U.S. 221, 235 (1985) (emphasizing that both the “length and i ntrusiveness” of a stop are relevant for purposes of the Terryanalysis). We recognize that the Supreme Court has suggested i n dictum that traffic stops based on probable cause might not be governed by Terry . See Berkemer v. McCarty , 468 U.S. 420, 439 n. 29 (1984) (“We of course do not suggest that a traffic stop supported by probable cause may not ex ceed the bounds set by the Fourth Amendment on the scope of a Terrystop.”). We nonetheless reject the government’s position and would adhere to our settl ed rule that a traffic stop should be analyzed under Terry , regardless of whether the stop is based on probable cause or on some lesser suspicion. Factua lly, most traffic stops are based on probable cause. Cf. Whren v. United States , 517 U.S. 806, 810 (1996) (“As a general matter, the decision to stop an auto mobile is reasonable where the police have probable cause to believe that a traffi c violation has occurred.”). Rarely do these stops lead to an arrest, however, e ven when arrest is authorized-7-

by statute. Cf. Atwater v. City of Lago Vista , 121 S. Ct. 1536, 1557 (2001) (“[T]he country is not confronting anything like an epidemic of unnecessary minor-offense arrests.”); Berkemer , 468 U.S. at 437 (noting that during a traffic stop, a motorist expects to answer some questions and perhaps receive a citation, but “that in the end he most likely will be allowedto continue on his way”). As we have noted many times, a typical traffic stop re sembles in character the investigative stop governed by Terrymore closely than it does a custodial arrest. E.g. , United States v. Botero-Ospina , 71 F.3d 783, 786 (10th Cir. 1995) (en banc). We see no compelling reason to depart from this en banc court’s previous holding that even if “an officer’s initial traffic stop [is] objectively justified by the officer’s observation of a minor traffic violat ion, . . . his investigation nevertheless will be circumscribed by Terry ’s scope requirement.” BoteroOspina , 71 F.3d at 788. Even if we were to abandon Terryfor this type of traffic stop, we are convinced we would still apply a scope requirement since, as indicated by the Supreme Court, the Fourth Amendmen t constrains the scope of all searches and seizures. E.g. , Royer , 460 U.S. at 499-500. For these reasons, we conclude that the Fourth Amen dment reasonableness of a traffic stop based on probable cause must be j udged by examining both the length of the detention and the manner in which it is carried out. We therefore reject the government’s assertion that, because Off icer Tucker’s questioning-8-

about weapons did not extend the length of the stop in this case, there was no Fourth Amendment violation.
III. The second issue we must address is whether to adop t a bright-line rule allowing an officer conducting a traffic stop to as k the driver about the presence of weapons, absent reasonable suspicion that the dr iver may be armed and dangerous. For the reasons that follow, I believe we should reject the government’s invitation to adopt such a rule in thi s case. The “touchstone” of Fourth Amendment analysis “is a lways 'the reasonableness in all the circumstances of the part icular governmental invasion of a citizen’s personal security.'” Pennsylvania v. M imms , 434 U.S. 106, 108-09 (1977) (quoting Terry , 392 U.S. at 19). “Reasonableness, of course, dep ends ‘on a balance between the public interest and the indiv idual’s right to personal security free from arbitrary interference by law of ficers.’” Id. (quoting United States v. Brignoni-Ponce , 422 U.S. 873, 878 (1975)). Because of “the factspecific nature of the reasonableness inquiry,” the Supreme Court has generally “eschewed bright-line rules” in the Fourth Amendmen t context. Ohio v. Robinette , 519 U.S. 33, 39 (1996). Consistent with this framework, officers conducting traffic stops may “take such steps as [are] reasonably necessary to protecttheir personal safety.”-9-

Hensley , 469 U.S. at 235. “For example, they may order ou t of a vehicle both the driver . . . and any passengers,” “perform a ‘patdo wn’ of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous,” “conduct a ‘Terrypatdown’ of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon,” and “even conduct a full sear ch of the passenger compartment, including any containers therein, purs uant to a custodial arrest.” Knowles v. Iowa , 525 U.S. 113, 117-18 (1998). Applying the reasonableness inquiry in this case, “ we look first to that side of the balance which bears the officer’s interest i n taking the action that he did.” Mimms , 434 U.S. at 109. It is important to emphasize atthis point that the government has never attempted to argue, and indeed cannot argue, that Officer Tucker reasonably suspected that Holt may have been armed and dangerous. At no time during the suppression hearing did Tucker t estify that he believed Holt to be armed or otherwise dangerous, or that he was con cerned for his safety; indeed, he testified that he did not “remember feeling thre atened” by Holt. App. at 44. In granting Holt's motion to suppress, and in respo nse to the government's argument that Officer Tucker was justified in his i nquiry about the presence of weapons in Holt's vehicle to insure the officer's s afety, the district court made the-10-

following factual findings, none of which the gover nment or the majority has established are clearly erroneous: Trooper Tucker did not testify that he had any susp icion that Defendant was armed and dangerous to justify his qu estion regarding the presence of firearms. Similarly, Trooper Tucke r did not testify that he was subjectively in fear of his safety or apprehension of physical harm from Defendant. Objectively, Defendant was seated in Trooper Tucker's OHP cruiser, at a police traffi c checkpoint, surrounded by additional police officers. These ci rcumstances do not give rise to any apparent risk of harm to Troop er Tucker or any other officer that was present. As a result, this Court finds that officer safety could not and did not justify Troope r Tucker's questioning. Dist. Ct. Order at 7-8. Although Tucker’s limited knowledge that Holt was adrug trafficking suspect perhaps could have afforded him with a reas onable suspicion that Holt was armed or dangerous, see , e.g. , United States v. Brown , 188 F.3d 860, 864-65 (7th Cir. 1999) (indicating that officer who stoppe d suspect for traffic violation had reasonable suspicion that suspect might be arme d and dangerous due, in part, to officer’s knowledge of FBI surveillance of the s uspect’s vehicle as a possible part of a large-scale drug operation), Tucker did n ot indicate this was the case, and there is no other evidence that would allow us to reach such a conclusion. Tucker’s actions during the stop are also consisten t with the conclusion that Holt did not represent a safety threat. For example, Tu cker did not attempt to pat down Holt when he ordered him out of his vehicle. Further, the evidence-11-

indicates Tucker placed Holt in the patrol car because that was his routine practice with male detainees (although that routine practice may have originated out of safety concerns, there was no evidence on th at point). Finally, in seeking Holt’s consent to search the vehicle, it appears th at Tucker was not interested in locating the weapon for safety purposes, but ratherwas interested in determining if Holt had violated Oklahoma state law. App. at 4 2 (Tucker testified he was interested in checking the weapon to “make sure it [wa]s loaded or that there [wa]s a violation,” thereby allowing him to “issue a citation or take the subject into custody”). In lieu of reasonable suspicion, the government ask s us to recognize that an officer faces significant dangers each time he o r she conducts a traffic stop. In other words, the government asks us to adopt an approach similar to the one followed by the Supreme Court in Mimms and Wilson , two cases in which the Court was willing to announce bright-line rules gov erning traffic stops. In Mimms , two police officers on routine patrol observed an individual driving an automobile with an expired license plate . After stopping the vehicle for the purpose of issuing a citation, one of the o fficers ordered the driver out of the car and asked him to produce his driver’s licen se. When the driver did so, the officer “noticed a large bulge under [the driver’s] sports jacket” and, “[f]earing that the bulge might be a weapon, . . . frisked [th e driver] and discovered in his-12-

waistband a [loaded] .38-caliber revolver.” 434 U. S. at 107. Although the Pennsylvania Supreme Court concluded that it was co nstitutionally impermissible for the officer to order the driver out of the vehi cle, the Supreme Court held otherwise. Despite the fact that “the officer had no reason to suspect foul play from the . . . driver at the time of the stop,” the Court concluded that the officer nonetheless faced two specific safety risks. Id. at 110. First, the Court emphasized “the inordinate risk confronting an offi cer as he approaches a person seated in an automobile.” Id. Second, the Court noted the potential “hazard of accidental injury from passing traffic to an office r standing on the driver’s side of [a] vehicle.” Id. at 111. The Court ultimately concluded that these safety risks outweighed what it described as the “de minim is” intrusion on personal liberty caused by the officer asking the driver to get out of his vehicle. Id. In Wilson , a Maryland state trooper observed an automobile b eing driven over the posted speed limit and without a regular l icense tag. The trooper pursued the car and, as he did so, observed two pas sengers in the vehicle, both of whom “turned to look at him several times, repeated ly ducking below sight level and then reappearing.” 519 U.S. at 410. When the vehicle finally stopped, the driver got out and met the trooper halfway. “The d river was trembling and appeared extremely nervous, but nonetheless produce d a valid Connecticut driver’s license.” Id. The trooper instructed the driver to return to th e car and-13-

retrieve the rental documents, and the driver compl ied. While the driver was sitting in the driver’s seat looking for the rental papers, the trooper ordered the front-seat passenger, who “was sweating and also ap peared extremely nervous,” out of the car. Id. at 410-11. When the passenger got out of the car, a quantity of crack cocaine fell to the ground, and the passen ger was arrested and charged with possession with intent to distribute. Prior t o trial, the passenger moved to suppress the evidence, arguing that it was constitu tionally impermissible for the trooper to order him out of the vehicle. The Maryl and courts agreed and suppressed the evidence. The Supreme Court, howeve r, reversed, concluding that “the rule of Mimms applies to passengers as well as to drivers.” Id. at 413. In doing so, the Court noted that the same dangers exi st when an officer approaches a stopped vehicle, “regardless of whether the occup ant of the stopped car is a driver or passenger.” Id. Although the Court acknowledged that “the danger of the officer’s standing in the path of oncoming traf fic would not be present except in the case of a passenger in the left rear seat,” it emphasized that the presence of “more than one occupant of the vehicle increases th e possible sources of harm to the officer.” Id. In my view, Mimms and Wilson do not translate as readily to the circumstances of this case as the government sugges ts. To begin with, it is beyond obvious that the relative weight of the inte rest in officer safety will vary6 The fact is that Officer Tucker considerably neutralized any such risks by

ordering Holt out of his truck and into Tucker’s vehicle. See Mimms , 434 U.S. at 111. -14- depending upon the particular circumstances of each case. E.g. , Knowles , 525 U.S. at 117 (“The threat to officer safety from iss uing a traffic citation . . . is a good deal less than in the case of a custodial arre st.”); Mimms , 434 U.S. at 110- 11 (recognizing “the inordinate risk confronting an officer as he approaches a person seated in an automobile,” as well as the “ha zard of accidental injury from passing traffic to an officer standing on the drive r’s side of [a detained] vehicle”). Thus, in considering the reasonableness of specific police conduct we must focus sharply on the context in which the cond uct occurred in order to identify the particular risk(s) posed to officer sa fety. Here, unlike Mimms and Wilson , we are not dealing with the beginning stages of a traffic stop. Therefore, we are not co nfronted with “the inordinate risk[s]” that exist when an officer approaches a “p erson seated in an automobile,” or with the “hazard of accidental injury from passi ng traffic to an officer standing on the driver’s side of [a stopped] vehicle.” 6 Mimms , 434 U.S. at 110-11. Our focus instead must be on the risks that Officer Tuc ker faced when he posed his question about loaded weapons, i.e., as Holt sat in the squad car while Tucker finished writing a warning for Holt’s seatbelt viol ation. Viewed more generically, we must determine what types of risks exist near the conclusion of a-15-

routine traffic stop, including those that exist wh en a driver is allowed to return to his car and leave the scene. On this point, the evidence is, to put it generousl y, quite meager. It is uncontroverted that Officer Tucker never broached t he subject in his testimony during the suppression hearing, and the government never submitted any other evidence on this point to the district court. Thus , we are left with the government’s citations to Mimms and Wilson , and a handful of general crime statistics independently uncovered by the majority. Although the majority is willing to afford great weight to its statistics, I am unwilling to do the same. In taking this stance, I acknowledge that the Supreme Court relied on general crime statistics in Mimms and Wilson . That reliance is much more understandable in my view, however, since the Court in those cases wa s assessing the risks that exist at or near the outset of a traffic stop, when the driver and/or occupants are still in their vehicle and the outcome of the stop remains unknown. Given the lack of real evidence, I am inclined to c onclude that the safety risks existing at the conclusion of a routine traff ic stop (i.e., one not ending in an arrest) are significantly lower than at the beginni ng of such a stop. I draw this conclusion, in part, from the Court’s statement in Wilson“that the possibility of a violent encounter stems not from the ordinary react ion of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might7For these same reasons, it is conceivable in my v iew that Officer

Tucker’s questioning about loaded weapons and othercontraband actually increased, rather than reduced, any potential safety risks. -16- be uncovered during the stop.” 519 U.S. at 414. I f, as here, a traffic stop is about to end with the mere issuance of a ticket or warning (or with no official action), then I submit the safety risks are low, si nce the driver will be less concerned at that point “that evidence of a more se rious crime [will] be uncovered.” 7Id. I now turn to the second part of the reasonableness equation, which requires us to identify the individual interests th at are implicated when an officer asks a driver about the presence of weapons. On th is point, the majority curiously focuses only on the individual interests of defendant Holt, or more accurately, what it perceives as the nonexistent in dividual interests of defendant Holt. Citing an Oklahoma statute that makes it “un lawful for any person to fail or refuse to identify the fact that [they are] in a ctual possession of a concealed handgun pursuant to the authority of the Oklahoma S elf-Defense Act” when they come into contact with a law enforcement officer du ring a traffic stop, Okla. Stat. Ann. tit. 21, § 1290.8(C), the majority suggests th at Holt “had no reasonable expectation . . . of keeping private the fact that he was carrying a loaded weapon behind the passenger seat of his vehicle.” Maj. Op . at 14. Although this analysis is quick and convenient, I question whether it is c orrect. The majority cites no-17-

cases in support of its proposition, and my own rev iew of relevant Supreme Court cases suggests the majority’s position is unprecede nted. See generallyMinnesota
v. Carter , 525 U.S. 83, 110 (1998) (Ginsburg, J., dissenting ) (“If the illegality of the activity made constitutional an otherwise uncon stitutional search, such Fourth Amendment protection, reserved for the innocent onl y, would have little force in regulating police behavior toward either the innoce nt or the guilty.”). If the majority’s analysis were correct, then why wouldn’ta similar conclusion be reached regarding a driver’s possession of illegal drugs? In other words, because state and federal law make it illegal to possess various types of street drugs, then wouldn’t a driver lack any reasonable expectation o f keeping private the fact that he was carrying such drugs in his vehicle? Moreove r, the majority’s analysis ignores the broader view, including those situation s where a driver is either lawfully carrying an item that could be brandished as a weapon, see generally Michigan v. Long , 463 U.S. 1032, 1061 (1983) (Brennan, J., dissenti ng) (“An individual can lawfully possess many things that can be used as weapons. A hammer, or a baseball bat, can be used as a very ef fective weapon.”), or is carrying nothing that could be used as a weapon. Although it is admittedly difficult to quantify the precise individual interests at issue, Supreme Court precedent strongl y suggests that a driver retains some reasonable expectations of privacy and security regarding his vehicle and8 The Supreme Court is not alone in recognizing that a driver in a routine

traffic stop retains some measure of individual pri vacy. This court has likewise held that a driver retains an expectation of privac y in his or her vehicle and its contents. United States v. Soto , 988 F.2d 1548, 1553 (10th Cir. 1993). Indeed, we have held that this expectation of privacy exten ds to secret compartments within a vehicle, even though such compartments “ar e most often used to conceal narcotics, weapons, or large amounts of cash.” Id. at 1554. As we noted in reaching this conclusion, if a person’s expectation of privacy in his automobile “is to be protected at all, there appears to be no reason to treat searches of secret compartments within the vehicle on any different ba sis than searches of the glove compartment or trunk.” Id. -18- its contents, even when those contents are illegal. In Long , for example, the Supreme Court held it permissible for a law enforce ment officer to conduct a “Terrypatdown” of the passenger compartment of a vehicle if the officer had reasonable suspicion that the driver was dangerous and might gain immediate control of a weapon. 463 U.S. at 1049. Although the Court did not discuss at length the individual interests implicated by such patdowns, it can be inferred from the reasonable suspicion requirement that the driver of a vehicle possesses some residual privacy interests in the interior compartment of a lawfully stopped vehicle, as well as in the contents of that compartment (even if those contents include weapons). In other words, if a driver poss esses no such residual privacy interests, the Court presumably would not have impo sed the reasonable suspicion requirement, and would instead have allowed such patdowns as a matter of course in all traffic stops. 8-19-

Balancing the two parts of the equation against eac h other, I conclude that the individual privacy interests implicated by the government’s proposed brightline rule outweigh what I perceive to be the very m inimal safety risks that exist at or near the conclusion of a routine traffic stop. Thus, I reject the government’s proposed bright-line rule because, in my view, it i s inconsistent with the Fourth Amendment. Because the majority reaches a different conclusion and agrees to adopt the proposed bright-line rule, I find it necessary to h ighlight what I believe are some additional flaws in the rule. Aside from the fact that the rule flies in the face of the Supreme Court’s general distaste for bright-lin e rules in the Fourth Amendment context, it is unprecedented in its breadth. In virtually every case in which the Supreme Court has been willing to announc e a bright-line rule governing routine traffic stops, it has been carefu l to closely tailor the new rule to match the facts before it. See Wilson , 519 U.S. at 414 (authorizing officer to order passengers out of vehicle); New York v. Belto n , 453 U.S. 454, 460 (1981) (authorizing full search of passenger compartment p ursuant to a custodial arrest); Mimms , 434 U.S. at 111 (authorizing officer to order dri ver out of vehicle). Here, in contrast, the rule has only a minimal conn ection to the facts before us, and is so broad that it apparently applies at any s tage of a routine traffic stop. Despite its breadth, I am not convinced that the ru le will do much to reduce the-20-

safety risks faced by officers conducting routine t raffic stops. As it now stands, existing precedent affords officers a number of mea sures to “protect themselves from danger.” Knowles , 525 U.S. at 117. As a matter of course, an offic er can remove a driver from a vehicle. If an officer reas onably suspects a driver may be armed and dangerous, he can frisk the driver and/orconduct a “patdown” search of the passenger compartment. The question is ther efore what, if any, protection the rule affords an officer in those situations whe re he does not have a reasonable suspicion that the driver of a stopped vehicle may be armed and dangerous (since those are presumably the only situations where the officer would have to resort to questioning the driver about weapons, rather than s imply conducting a patdown of the driver and passenger compartment). Accordin g to the majority, most drivers will answer truthfully if asked about the p resence of loaded weapons. This is a dubious assumption in my view, at least i n those situations where the driver is considering using a weapon against the of ficer. Moreover, by authorizing questions only about “loaded weapons,” the rule affords virtually no protection in those situations in which a driver po ssesses an unloaded weapon and ammunition, since the driver can truthfully ans wer “no” to the officer’s question. Finally, although I agree that a questio n about loaded weapons can perhaps provide an officer with clues about a drive r, I am also concerned that the-21-

question can, at least in some instances, create th e possibility of violence where it otherwise did not exist.
IV. Having rejected both of the government’s arguments, I am left with the conclusion that Officer Tucker’s question about weapons was unreasonable and violated the Fourth Amendment. The question remain s, however, whether Holt’s consent to search was nevertheless valid. “A searc h preceded by a Fourth Amendment violation remains valid if the consent to search was voluntary in fact under the totality of the circumstances.” United S tates v. Fernandez , 18 F.3d 874, 881 (10th Cir. 1994); cf. United States v. Gregory , 79 F.3d 973, 979 (10th Cir. 1996) (noting that “voluntary consent may be g iven by a person who is detained”); United States v. Soto , 988 F.2d 1548, 1557-58 (10th Cir. 1993) (holding that a defendant’s consent to a search of his vehicle was voluntary even though police officer was in possession of defendan t’s license and registration at the time the officer requested consent to search). “The government bears the burden of proving the voluntariness of consent, and that burden is heavier when consent is given after an illegal [detention].” Fe rnandez , 18 F.3d at 881. “If the consent is not sufficiently an act of free will to purge the primary taint of the illegal detention, . . . it must be suppressed as ‘ fruit of the poisonous tree.’” United States v. Walker , 933 F.2d 812, 817 (10th Cir. 1991) (quoting Unite d-22-

States v. Maez , 872 F.2d 1444, 1453 (10th Cir. 1989)). Three fac tors are relevant to the determination of whether a detainee ’s consent was an act of free will: “the temporal proximity of the illegal detent ion and the consent, any intervening circumstances, and, particularly, the p urpose and flagrancy of the officer’s unlawful conduct.” Id. at 818 (citing Brown v. Illinois , 422 U.S. 590, 603-04 (1975)). Because the district court did notaddress this issue, I would remand the case to the district court for findings on the issue of the voluntariness of Holt’s consent. See Walker , 933 F.2d at 818.No. 99-7150, United States v. Holt

HENRY , Circuit Judge, concurring. I join with Parts I and II of Judge Briscoe’s opin ion in concluding that non-consensual police encounters should continue to be measured by the parameters of Terry v. Ohio , 392 U.S. 1 (1968) and its progeny, which specifically means that the government must demonstrate that an investigative detention “was sufficiently limited in scope and duration. ” Florida v. Royer , 460 U.S. 491, 500 (1983) (emphasis added). However, I join in Parts I and II of Judge Ebel’s o pinion, with the following caveats: (1) In Part I, I do not agree th at questions of travel plans are before us and thus I express no opinion on whether travel plan questions are within the scope of all traffic stops; and (2) I ag ree with Part II’s holding that there is a narrow exception afforded during traffic stops to inquire about the presence of firearms, in the interest of officer sa fety. I am not convinced that the statistical data upon which Part II relies is dispo sitive, but considered in the context of Pennsylvania v. Mimms , 434 U.S. 106 (1977) and Maryland v. Wilson , 519 U.S. 408 (1977), I am persuaded that a narrow o fficer-safety exception is appropriate. Indeed, local state law enforcement m ust make their own determinations about whether or not the interests o f ensuring officer safety are furthered by asking about the presence of firearms.-2-

To restate, in my view, we are declaring a narrow p ersonal safety exception to the Terry scope and duration: During a valid traffic stop, o fficers may ask the occupants of the vehicle about the presence of load ed firearms. In my opinion, this questioning would also extend to ask about the presence of unloaded weapons, for the risk of violent response to either is similar. See McLaughlin v. United States , 476 U.S. 16, 17 (1986) (affirming lower court’s c onclusion that petitioner’s unloaded gun was a “‘dangerous weapon’ within the meaning of 18 U.S.C. § 2113(d)”); United States v. Boyd , 924 F.2d 945, 948 (9th Cir. 1991) (noting that unloaded weapons, like loaded weapons “instill[] fear in victims and bystanders, creating the risk of violent response”); United States v. Benson , 725 F. Supp. 69, 73 (D. Me. 1989) (recognizing “that th e display of such a [unloaded] weapon instills fear in the average citizen and cre ates a danger that the unloaded weapon may evoke a violent response from police or others”) (internal quotation marks omitted). In addition, as the government suggests, this narro w exception would not run afoul of Fourth Amendment limitations “as long as such questioning does not prolong the duration of the st op or alter its fundamental character as a Terry -type detention.” Govt’s Petition for Reh’g En Banc at 11; see id. at 14. Finally, and most importantly, we reiterate the pra ctical implications of such questioning and the elicited response: First, “the detainee is not obligated-3-

to respond. And, unless the detainee’s answers pro vide the officer with probable cause to arrest him, he must then be released.” Berkemer v. McCarty , 468 U.S. 420, 439-40 (1984) (footnotes omitted). Similarly, as the majority points out, a “refusal to answer furnishes no basis for an arrest , although it may alert the officer to the need for continued observation.” Terry , 392 U.S. at 34 (White, J., concurring). Any “continued observation” must be t empered by the scope and duration requirements of Terry . See INS v. Delgado 466 U.S. 210, 216-17 (1984) (noting that the “Fourth Amendment imposes s ome minimal level of objective justification to validate the detention o r seizure,” in the face of a refusal to respond). Similarly, as the government a cknowledged during oral argument, in the face of a negative response, any f urther detention must be supported by reasonable suspicion. See United States v. Soto , 988 F.2d 1548, 1555 (10th Cir. 1993) (“Whether such an investigati ve detention is supported by an objectively reasonable suspicion of illegal acti vity does not depend upon any one factor, but on the totality of the circumstance s.”).No. 99-7150, United States v. Dennis Dayton Holt

KELLY , Circuit Judge, concurring in part and dissenting in part. I concur in Judge Ebel’s opinion in its entirety, b ut write separately to emphasize my dissent from Part II of Judge Briscoe’ s opinion in light of the en banc court’s disposition of the officer safety issu e. Having decided that an officer may ask a stopped motorist whether there is a loaded firearm in the car even in the absence of particularized suspicion, itis totally unnecessary for the en banc court to decide whether Terry stops are constrained only in terms of duration, and not in terms of scope. See United States v. Shabazz , 993 F.2d 431, 436-37 (5th Cir. 1993). Because the case must be r emanded for additional analysis under the officer safety rationale, it is at best premature to decide the outer limits of permissible questioning in these ci rcumstances, and at worst completely advisory and inappropriate. There is no thing in the record, other than about the firearm, to support the far-ranging impli cations contained in Part II. Moreover, no facts yet establish that Officer Tucke r’s questioning unrelated to officer safety resulted in the stateme nts or evidence sought to be suppressed. While it is true that Officer Tucker a sked about Holt’s drug history, the questions were posed after the questioning about the loaded firearm and in response to Holt’s volunteering that he did not use drugs anymore. Aplt. App. at1 Although Holt testified that he never told Officer Tucker that he had a

loaded firearm in the car and that he did not conse nt to a search, the district court rejected this testimony as incredible. -2- 42-43. Thereafter, Holt gave consent to search. 1 Id. at 43. Nothing in this record suggests that Holt’s providing information about his previous drug use had anything to do with his consent. Officer Tucke r went to the loaded pistol behind the passenger seat, id. at 45, and a local officer went to the camper, looked in and found a white powdery substance. Id. at 47. Cases must be decided (and read) against their facts. Here, we are announcing a Fourth Amendment rule in search of facts.No. 99-7150, United States v. Holt

LUCERO , Circuit Judge, with whom Judge SEYMOUR joins, concurring in part and dissenting in part. Having joined Judge Briscoe’s opinion in its entire ty, I write separately to emphasize two points. First, Officer Tucker statedin the suppression hearing that he did not “remember feeling threatened” by Ho lt prior to asking Holt about the presence of a loaded weapon in the car. (Appel lant’s App. at 44.) Thus, the only direct evidence we have as to the officer’s particularized suspicion to justify the interrogation is that there was none. Had Offi cer Tucker expressed a concern about his safety, we would review to determine whether that concern was reasonable under Terry v. Ohio , 392 U.S. 1 (1968), and that would end the matter. Given the officer’s lack of concern for hi s own safety, I think it inappropriate to reach out and create law that but for the en banc nature of these proceedings would essentially be dicta. Second, the law in this Circuit, and the eventual c onclusion of the en banc court, is that traffic stops are governed by the standards laid down in Terry . See,
e.g. , United States v. Hunnicutt , 135 F.3d 1345, 1348 (10th Cir. 1998); United States v. Anderson , 114 F.3d 1059, 1063 (10th Cir. 1997). “[W]here [ a police officer] has reason to believe that he is dealing w ith an armed and dangerous individual,” the officer may undertake “a reasonabl e search for weapons for the protection of the police officer.” Terry , 392 U.S. at 27. Courts will defer “not to-2-

[the officer’s] inchoate and unparticularized suspi cion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw.” Id. Thus, the Supreme Court has explicitly held that, upon an art iculable and reasonable belief the motorist is potentially dangerous, a police off icer may search the interior compartment of the car that has been stopped. Michigan v. Long , 463 U.S. 1032, 1049–50 (1983). However, a police officer may not search a car during a traffic stop without such suspicion. Knowles v. Iowa , 525 U.S. 113, 119 (1998). Allowing the police in this case, and in all future cases in which there is no particularized suspicion, to interrogate stopped mo torists as to the presence of loaded weapons is contradictory to the rule laid down in Terry . The average American citizen stopped for speeding while hurryin g to drop children off at school will not only find it bizarre, but more than minimally intrusive, to be confronted with questions about loaded weapons. Itseems extraordinary to me that we, as a court, are arrogating unto ourselves the right to alter the clearly established Supreme Court precedent in Terry , and are thereby eroding the constitutional rights of American citizens. If the jurisprudence of the United States Supreme Court is to be altered, that task belongs to the Court itself. See Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd. , 460 U.S. 533, 535 (1983) (per curiam); Khan v. State Oil Co. , 93 F.3d 1358, 1363 (7th Cir. 1996) (“[T]he Supreme Court has told the lower federal courts, in increasingly emphatic, even-3-

strident, terms, not to anticipate an overruling of a decision by the Court; we are to leave the overruling to the Court itself.” (citation omitted)).No. 99-7150, United States v. Holt

MURPHY , Circuit Judge, concurring in part and dissenting in part. I join parts I and II of Judge Briscoe’s opinion. In particular, I fully agree with Judge Briscoe that the analytical framework set forth in Terry applies to traffic stops, even those based upon probable cause, and that Terry requires an analysis of both the scope and the duration of a st op to determine whether an officer’s actions during the stop comported with th e Fourth Amendment. Although the issue is not addressed in Judge Briscoe’s en banc opinion, in the panel majority opinion authored by Judge Brisco e she expressed doubt whether questions relating to a detained motorist’s travel plans were appropriate in light of Terry ’s scope requirement. See United States v. Holt , 229 F.3d 931, 937 (10th Cir. 2000). In her majority opinion for the court, Judge Briscoe has declined to reach the issue, noting that the issue is not implicated by the facts of this case. Nevertheless, in a portion of his opini on joined by three other members of the en banc court, Judge Ebel has now suggested that questions regarding travel plans are always within the scope of a traffic stop. See Opinion of Judge Ebel at 11 (“Travel plans typically are re lated to the purpose of a traffic stop because the motorist is traveling at the time of the stop.”). Although I concur in the majority’s decision not to definitively decide this issue, I feel compelled to offer the following obse rvations regarding the approach advocated in Judge Ebel’s opinion. For those reaso ns cogently stated by Judge-2-

Ebel in his panel dissent, I disagree that question s relating to travel plans are related to the purpose of a roadside traffic stop. See Holt , 229 F.3d at 942 (Ebel, J., dissenting) (“When a car is stopped for speedin g or for a straightforward traffic violation, as opposed to being stopped on s uspicion that the driver is falling asleep or driving erratically (in which cas e the officer would be legitimately concerned with how much further the dr iver intended to travel), it is difficult to explain how questions concerning the t ravel plans of the occupant are reasonably related to the circumstances which justified the stop.”); id. (Ebel, J., dissenting) (describing questions relating to trave l plans as “wholly unrelated to the purpose of the stop”). Judge Ebel’s en banc opinion offers no convincing rationale for the abandonment of his previous analy sis of this question and its replacement with a one-size-fits-all rule holding that questions regarding travel plans are invariably within the scope of a traffic stop. Furthermore, in light of the fact that Holt was never asked any questions re garding his travel plans, this is an odd case within which to advocate such a rule. In the words of Judge Kelly, it appears that Judge Ebel and those that have joined his opinion are suggesting “a Fourth Amendment rule in search of facts.” Opinion of Judge Kelly at 2. Although I disagree with Judge Ebel’s suggestion th at questions regarding travel plans are always related to the purpose of atraffic stop, I nonetheless am of the view that facially innocuous questions, incl uding those relating to travel-3-

plans, are proper during a routine traffic stop as long as they do not extend the duration of the stop. In my view, Terry ’s scope requirement is a common sense limitation on the power of law enforcement officers . It prevents law enforcement officials from fundamentally altering the nature of the stop by converting it into a general inquisition about past, present, and future wrongdoing, absent an independent basis for reasonable articulable suspic ion or probable cause. The scope doctrine does not, however, prevent officers from engaging in facially innocuous dialog which a detained motorist would no t reasonably perceive as altering the fundamental nature of the stop. Accor dingly, I do not think it necessary to suggest that questions about a detaine d motorist’s travel plans are invariably related to the purpose of the stop in or der to conclude that they are proper under Terry

. I join parts III and IV of Judge Briscoe’s opinion in their entirety. I agree with Judge Briscoe that the bright-line rule adopte d by the majority allowing law enforcement officials to routinely ask about the pr esence of weapons during a traffic stop is inconsistent with the scope require ment set out by the Supreme Court in Terry and is unnecessary to ensure officer safety. I fu rther agree with Judge Briscoe that no reasonable officer would have feared for his safety at the time Officer Tucker asked Holt about the presence o f weapons.