1 The Honorable Richard G. Kopf

, Chief Judge, U

nited States Distr

ict Court for the District of N

ebraska, sitting by

designation. 

## United States Court of Ap peals FOR TH E EIGHT H CIRC UIT

___________ No. 01-1034

___________ United States of America, * * Appellant, * Appeal from the United States * District Court for

the
v. * District of South Dakota. * Manuel Rodriguez-Arreola, * * Appellee. *

___________ Submitted: June 12, 2001 Filed: October 12,

2001

___________ Before BOWMAN and HEANEY, Circuit Judges, and KOPF, 1 District Judge.

___________ BOWMAN, Circuit Judge. Duringthe routine stop of a v ehic le for speeding, a South Dakota highway patrol officer discovered

that Manuel Rodriguez-Arreola, a passenger in the vehicle,
was an illegal alien. Rodr iguez was detained and later charged under 8 U.S.C. § 13 26(a) (S upp. IV 1998) with being an illegal alien present in the United States2 The one-count indictm ent further alle ges that Rodriguez qualifies for a sentence enhancement

basedon his previous convicti on in an Oregon state

court for the delivery of heroin. See 8 U.S.C. § 1326(b)(2) (1994 & Supp. IV 1998).
-2- after deportation. 2 Rodriguez filed a m otion to suppress all evidenc e obtained during the traffic stop, ar

guing that his status as a n illegal alien was

discovered through questioning that violated his Fourth Amendment rights. The District Court granted Rodriguez's motion to suppress and the government appeals. We reverse.

I.

While traveling west on I -90, South D akota Highway Patrol Officer Chri stopher Koltz noticed a vehi cle approaching fr

om the opposite dir

ection. His radar recorded the vehicle's speed at eighty-six miles per

hour—eleven mi

les per hour in excess of the posted s

peed limit. T

rooper Koltz

then crossed the inte

rstate median and accelerated in ord er to overtake and sto p the speeding veh icle.
Trooper Koltz activated a video r

ecording system

before exiting

his patrol car, and all events and conver

sations during the stop

were recorded. He approached the stopped vehicle and request ed that the driver,

Estaban Molina, pr

ovide his license and regi stration. He informed Molina that he had bee n stopped for speedin

g an d instructed him to step out of the vehicl e and to tak e a seat in the front of his patrol
car. Trooper Koltz sho wed Molina the

s peed that the radar

had recorded and informed Molina that he was go

ing to issue him a tic

ket. While pre

paring the ticket, Trooper Koltz asked Molina a

variety of gene

ral questions, afte

r whi ch he as ked Molina whether he wa s a Unite d States citizen or a resident alien. Molina first answered that he was neither a United States citizen nor a resident alien. In order to confirm Molina's admis sion that he was an il legal alien,Trooper Koltz asked Molina whether he had a green card. Aft er a somewhat confusing conversation between Molina and Trooper Koltz, Molina was able to convey

that he was a

legal alien but3 Trooper Koltz asked Molina:

Q: How

about your frie

nd up here that you

're traveling wi

th, is he a legal alien? Does he

have a green card

? A: No (inaudible) Q: He does or he doesn' t? A: (inaudible)
UnitedStates v. Rodrigue z-Arreola , No. CR 00-40071 (D.S.D. No v. 21, 2000) (appendix A to Magistrate Judge's Report and Recommendation).

4 As one of the highway patrol's canine handlers, T rooper Koltz's j ob included the detection of ille

gal drugs.

5 Trooper Koltz's

questioning of Rodrigue z proceeded as foll

ows: Q: How well do you understand English, sir? A: Nada. Q: Nada, huh? I'll bet you do. Do I need to get INS on the phone? A: (inaudible-seem

ingly confused) Q: INS? A: Huh?
-3- that he had left his

green card at home. Trooper Koltz then asked Molina whether his passenger was a le

gal alien and had a gr

een card. Molina answered no. 3

Trooper Koltz finished wr

iting the ticket and ha

d Molin a sign it. He told Molina that he

was going to run a che

ck of his license over

the radio and

that while waiting on the results, he would walk his dog around the car to make sure there were
no drugs. 4 Trooper Koltz ins tructed Molina to ste

p out of his patrol car

and had him stand on the sh oulde r of the road. Tr ooper Koltz procee

ded to the vehicle and motioned for Rodriguez, the

only passenger in the vehi

cle, to exit. After Rodriguez exited the vehicle, Trooper Koltz asked him whether he was a legal resident. He answered no. 5 Trooper Koltz f urther inquired as to

whether Rodriguez

possessed aQ: INS?

A: (inaudible). Q: Okay, is that how

we're going to play

it? A re you a legal . . . a reside nt of th is coun try? A: No. (inaudible) Rodriguez-Arre

ola , No. CR 00-40071 (a

ppendix B to Magistrate

Judge's Report and Recommendation).

6 Trooper Koltz's

questioning of Rodrigue z continued: Q: Where's yo

ur green card? A: (defendant produce s something from his wallet) Q: That's not a green

card. Where 's your green card? A: (inaudible-shaking he ad) Q: Yeah, you know what I 'm talking about. You don'thave one, do ya? A: No. (shaking head) Q: No. You're not he

re legally ar

e you? A: (shaking head) Rodriguez-Arre

ola , No. CR 00-40071 (appendix B to Magistrate Judge' s Report and Recommendation).

7 The canine alerted fo

ur times to the pr

esence of drugs

on the ex terior of the vehicle. Based on these aler ts, Trooper Kolt

z had his canine sniff the

interior where
-4- green card. In response, Rodriguez produced o nly a Washingt

on State identifica

tion card with his name on it, but no t a green card. 6 See United States v. RodriguezA rreola , No . CR 00-40071, at 17 (D.S.D. N ov. 6, 2000) (trans cript of motion hearing).

Trooper Koltz then had Rodri

guez join Molina on th

e shoulder of the roa

d so that he could use his canine to search the vehic

le. After his se

arch of the vehicle failed to discover any

drugs, 7 Trooper Koltz put his canineback in the patrol ca r anditagain alerted. Trooper Koltz then proceeded to search the interior by hand but was unable t o locate any drugs. See Rodriguez-Arre ola , No. CR 00-40071,

at 19-20 (transcript of m

otion hearing)

.
8 Appa rently, Rodriguez receiv ed Miranda warnings later when the INS decided to pursue criminal charges. See Rodriguez-Arre ola , No. CR 00-40071,

at 67-68 (D.S.D. N

ov. 6, 2000) (trans cript of motion h earing)
-5- proceededto perform a radio check on Rodriguez. Throu

gh dispatch, he also contactedan Immigration and Naturalization Service (INS) age nt to assist in an investigation

of the immigr

ation status of Molina

and Rodriguez, whom he suspected to be illegal aliens due

to their responses. After providing the INS agent with the

full
names of Molina

and Rodriguez, the agent asked Trooper Koltz fo

llow-up questions regarding Rodriguez. Due t

o his inability to converse wit h Rodriguez in Spanish, Trooper Koltz allowed the

INS agent to talk di

rectly with R

odriguez. Followi

ng his check of the identities of Molina and Rodriguez, the INS agent info rmed Trooper Koltzthat while Molina was a legal alien, Rodriguez was not. After the radio check
on Molina failed to

disclose any outstanding w arrants, Troope

r Koltz gave Molina

the speeding ticket and allowed him to go. At the request of t he INS, Trooper K

oltz placedRodriguez into custody and took him to the neare st jail facility for processing by the INS. View

ing the immi

gration detention as pa

rt of an adminis

trative procedure, neither the

INS nor Trooper Koltz inf

ormed Rodrigue

z of his Miranda rights during the traf

fic stop. 8

Prior to trial, Rodrigue

z moved to suppress "all eviden ce and stateme

nts obtained" during the traffic stop, par ticularly evide

nce and statem

ents pertaining

to his identity. United States v. Rodriguez-Arre ola , No. CR00-40071 (

D.S.D. Oc

t. 24, 2000) (M otion to Suppress). He argued that the evidence and statements were obtained through an illegal searc h a nd seizure that viola ted his Fourth Am

endment rights. The Magistrate

Judge held a hearing and subsequently recommended that the District Court grant Rodrigu ez's motion. See United S tates v. Rodrigu ez-Arreola , No.9 The government conce ded at oral argume nt that it was not cha

llenging the suppression

of the incriminating un-Mirandized statemen ts Rodri guez made to the INS official dur

ing this telephone conve

rsation.
-6- CR 00-40071, at 19 (D.S.D. N ov. 21, 2000) (Magis

trate Judge's Repor

t and R ecommendation). The District Cou rt adopted the Magist

rate Judge's Repor

t a n d Recomme

ndatio n and g ranted the motion to suppress based on its conclusion that Rodriguez's Fourt h Ame ndment ri ghts were violated. The government filed an interlocutory appeal challenging the ruling pursuant to 18 U.S.C. § 3731 (1994).

We review the Distr

ict Court's findings of fact f or clear error. United States

v. Stephenson , 924 F.2d 753, 758 (8th Cir.), cert. denied , 502 U.S. 813, 916 (1991). We review de

novo, however, th

e District Court' s ultimate lega l conclusions drawn from the facts. United States v. Tavares , 223 F.3d 911, 914 (8th Cir. 2000). We will not reverse the Distr

ict Court's decisio

n regarding a m

otion to suppress "unless

it is not supported by substantial evidence on the record; it reflects an erroneous view of the applicable law; or upon review of th e entire record,

the appellate court

is left with the definite and firm conviction that a mistake has been made." United States v. Layne , 973 F.2d 1417, 142 0 (8th Cir. 1992), cert. denied , 506 U.S. 1066 (1993).

II. Initially we note that two as

pects of the stop are

not in dispute. First

, Rodriguez does not argue that the initial stop of the vehic le for speeding was improper. Second, the gove rnment does not challenge the suppression of the incriminating

statements Rodr

iguez made duri

ng his telephone conver

sation with the INS agent from Trooper Koltz's patrol car. 9 The Distri ct Court's suppressi on of all other evidence obtained during the stop appears to be in dispute.10 Trooper Koltz li st ed multiple fac

tors as raising his susp

icion: the nervousness of Molina and Rodriguez ; Molina's continued nervousn ess after being told why he was stopped and even after he learned of the T

rooper's decision

to issue him a tic

ket; Molina and Rodriguez wer

e traveling on a long

trip together althoug

h not related and of signific a ntly dif ferent a ges; th e reluct ance of Molina or Rodr iguez t o make eye contact; the car being extremely clean on the interior with no d ebris; no luggage visible on the interior of the vehicle as would be expected f or a long trip

to Chicago; a ndthe car having Washington State license plates, which he considered a source state for illegal drugs. Rodriguez-Arre ola , No. CR 00-40071, at 10-1 5 (D.S.D. Nov. 6, 2000) (transcript of motion hearing).
-7- The government argues that Trooper Koltz did not violate the Four th Amendme

nt rights of Rodriguez. The g

overnment

contends that the questions posed to Molina concerning his alienage were within the s cope of the stop because they
were based on a reasonable suspicion by Trooper Koltz. 10 The government further contends that even if Troope r Koltz's questions

t o Molin a constituted an
unco nst itutional search and seizur e, the questions only

violated Molina's F ourth Amendme

nt rights—a violat i on that Rodriguez does not have standing to asse rt. After Molina stated that the passenger in his vehicle did not have a g reen c ard, the government

argues that Tr ooper Kol tz had reasonable suspicion to ask Rodriguez about his citizenship status . Finally, th e government ar

gue s that even if Trooper Koltz's questions constituted a Fourth Amendment violation, Rodriguez'sidentity is not suppressibl e as a matter of law.
Rodriguez contends that the quest ions posed by Troo

per Koltz about ali

enage
were outside the appropria te scope of the traf

fic stop and imperm

issibly extended t

he stop beyond its proper

duration. He arg

ues that these questio

ns by Trooper Kol

tz violated his Fo urth A mendme nt right to be free fr om illegal sear

ches and seizures. Rodriguez also contends that evidence of his identity is equally as suppre ssible as the other evidence obtained during the stop. Therefore, he argues that all e vidence
o btained during the traffic stop should be excluded as the poisonous fruit of a n unconstitutional search and seizure.11 Becausewe h old that Rodriguez ca nnot challenge the que stions about alienageposed to Molina, we do not consider the gove rnment's argu

ment that th e questions did not

violate the Fourth A

mendment

because, based on Trooper Koltz's suspicions, they were within the pr oper scope of the tr

affic stop.
-8- A.

We first dispose

of Rodriguez's cla

im that his Fourt

h Amendment rights were violated. In asserting that Tro oper K oltz performed an illegal search and seizure during the course of the traffic stop, Rodriguez relies on the ques t ions asked to Molina as a basis for esta

blishing a violation of hi s rights. Even if Troo per Koltz violated Molina's Fourth Am endment rights—a

question not before us—Rodriguez cannot use the violation of another individual's rights as the basis fo r his own Fourth Amendme

nt challenge. See United States v. Payner , 447 U.S. 727, 731 (1980) ("[A] court may not exclude evidence under the Fourth Amendme nt unless it finds that an unlawful search or seizure

violated the defend

ant's own constitutional rights."). In order for Rodriguez to

establish a claim based on the questions asked to Molina, he must show that the "challenged conduct invaded his legitimate expectation of privacy rather tha n that of a th ird party." Id. Rodriguez has no legi timate expect

ation of privacy in Molina's knowledge that Rodriguez was ille gally present in the United States, and therefore he cannot conte st Molina's statem ents. 11
Rodriguez asserts that the gove rnment has waived any

argument that h

e lacks the ability to challenge a Fourth Amendm ent violation of Molina

's rights because th

e government

never raised the argument b efore the District Cour t. The fa ct that Rodriguez cannot demonstr ate an expectation of pr

ivacy in the stat

ements ma

de by Molina , however , means that he does not have standing to assert such a Fourt

h Amendme

nt violation. See United States v. S tallings , 28 F.3d 58, 60 (8th Cir. 1994) ("In order to have standin g to challenge

a search or

seizure under the F ourth12 Becausethe government d oes not appeal the suppr ession of sta

tement s Rodriguez later made to the INS agent from his p atrol car, we do not need to consider whether Rodriguez should have received a Miranda warning prior to h

i s making those statements.
-9- Amend ment, the defendant m

ust have a legitim

ate expectation of p

rivacy in the places or objects searc

hed."). The gove

rnment cannot w

aiv e R odriguez's lack of standing, and therefore any argument based

on waiver must

fail. See Sierra Club

v. Robertson , 28 F.3d

753, 757 n.4 (8th Cir. 199 4) ("[I]t is el

ementary that standing relates to the justiciability of a case and cannot be waived by the parties.").

The Supre me Court has analogize d roadsidequestioning during a tra ffic stop to a Terry

stop, which allows an officer with reasonable suspici on to detain an individual in order to ask "a m oderate number

of questions to determ

ine his identity and to try to obtain inf

ormation confir

ming or dispelling

the officer's sus

p icion s." Berkemer v. McCarty , 468 U.S. 420, 439 (1984); see also Terry v. O hio , 392 U.S. 1 (1968). After Molina told T rooper Koltz that R

odriguez was not leg

ally pr esent in the United States, Trooper Koltz had reasonable suspicion to inquire into Rodriguez's alienage. T roope r Koltz then acted within the proper scope of this suspicion by asking Rodriguez whether he was a legal alien and had a green card. At this point, Trooper Koltz was st

ill in a stage of investigation and attempting to confirm what Molina had told him. See United States v. Foley , 206 F.3d 802, 805 (8th Cir. 2000) ("[A]n officer may undertake similar questioning of other vehicle occupants to verify information

provided by the dr

iver."). Rodri

guez was n ot in cu stody when he produce d his Washington Stat e identification ca

rd and answered tha

t he was not a legal alien. T his evidence is admissible even though Rodriguez hadnot yet received
a Miranda

warning. 12 See Berkemer , 468 U.S. at 440 ("The simila

rly noncoercive aspectof ordinary tra

ffic stops prom

pts us to hold that persons temporarily detained pursuant to s uch stops are not 'in custody' for the purposes of Miranda ."). United States v. McGauley , 786 F.2d 8 88, 890 (8th Cir. 1986 ) ("No Miranda w

arning is necessary for persons detained for a Terry stop.").13 The Magistrate Judge' s Report and Recom mendation state s, "It is recomme nded, the refore, that all evidence resulting from Rodriguez' [sic] illegal detention, including his statem ent of his identity

, his ID card,

and his fingerprints be suppressed." United States v. R odriguez-Arreol

a , No. CR 00-40071, at 19 (D.S.D. Nov. 21, 2000) (Report and Re comme ndation). The Di strict Court adopted this recomme ndation, stating that "evidence resulting from th e illegal detention of an alien can be suppressed at his criminal trial." United States v. R odriguez-Arreol

a , No. CR 00-40071, at 4 (D.S.D. Dec. 22, 2000) ( Memorandum

Opinion and Order) . We note that Trooper Koltz never asked Rodriguez for his name; rather, he asked Rodriguez if he had a green car

d, and Rodriguez pr

oduced his Washingto

n State identification card bearing his n ame. Thus , when the Magistrate Judge referred to Rodriguez's "statement

of his identity," we assume that the reference was either to the production of the ID card, or to Rodriguez's response to Trooper Koltz thathe was not legally in the United States. Rodriguez never spoke his name during the encounter.
-10- Inasmuch as, for the reasons sta

ted, Rodriguez-Arre

ola's Fourth Am

endment rights were not violated,

the District Court erred

by granting his suppr

ession motion, at least to the exten

t that the court's sup

pression order is cha

llenged in this appeal

.
B.

Our holding that no illegal s earch and se izure too k place disposes of thi s appeal. Neverth eless , we address the g overnment's a

rgument, that "identity" is not suppressible

even if gained throug

h a Fourth Ame

ndment violation,

for the purpose of clarifying

the posture in which t

his case comes

to us and how the

Supreme Court's decision in INS v. Lopez-Mendoza , 468 U.S. 1032 (1984), and this Cir

cuit's recent decision in United States v. Guevara-Martinez , No. 00-3855, 2001 WL 935871 (8th Cir. Aug. 20, 2001), apply to this case.

The District Court, in adopting the Magistr ate Judge's Report a n d Recomme

ndation, suppressed Rodriguez 's Washington

State identificat

ion card, his fingerprints,and statements t hat R odriguez made to Trooper Koltz. 13 The gove rnment , based on its interpre tation of the Suprem

e Court's decision i

n Lopez-14 In the context of a prosecution under § 1326, the Fifth Circuit has held that

even if a defendant is unc onstitutionally sto

pped and arrested,

his identity canno

t be suppressed. United

States v. Roque-V

illanueva , 175 F.3d 345, 346 (5th Cir. 1999). The Fifth Circuit's opinion does not mention fingerprints, statements, or other evidence obtained at the scene of the al legedly unlawf ul stop. Instead, it sim

ply rejectstha t defendant's argument that his INS file should have been suppressed as fruit of the poisonous tree. The Tenth Circuit , in an unpublished opinion, has interpreted Lopez-Mendoza to prevent

suppression of a defe

ndant's statem

ent of his name to an officer. See United States v. C isneros-Cruz , No. 98-1398, 1999 W L 444926, at **6 (10th Cir. June 30, 1999) (unpublished) . We again n ote tha t Rodriguez never stated his name to Trooper Koltz.
-11- Mendoza , argues that " evidence of adefendant's identity is not suppressible" and that the District Court thus erred in suppressin g those items of evidenc e. Appellant's Br. at16 (emphas is adde d). A close reading of Lopez-Mendoza does not support the gover n ment's broad interpretat ion. The Court hel

d in Lopez-Mendoza

that "[t]he 'body' or identity of a defendant or respondent in a criminal or civil proceeding is
never itself suppressible as a

fruit of an unlawf

ul arrest, even if it is conceded that an unlawful ar rest, se arch, or interrogation occurred." Id. at 1039. Thus, the Court rejected Lopez-Mendoza' s o bjec tion to being compe lled to appear at a d

eportation hearing following his unl awful arrest. The Ninth Circuit, apply

ing Lopez-Mendoza , has held that in the prosec ution of an illegal alien for reentry un der 8 U.S.C. § 1326, the "defendant's ident

ity need not be sup pressed merely because it is discovered as the result of an illegal arrest or s ea rch." United States v. G uzman-Bruno , 27 F.3d 420, 421 (9th Cir.), cert. denied , 513 U.S. 975 (19 94). The court int erpreted LopezMendoza as foreclosing the defendant's "attempt to suppress the fact of his identity." Id. at 422. The Ninth Circuit's opi nion gives no indication t hat it was refusing

to suppress specific physical evidence of any sort; it only indic ates that the co urt declined to suppress th

e simple fact of who the defendan t was. 14

After a careful readi

ng of both

the District Court's

order and the rele

vant case law, it is apparent that the government misunderstands the scope of the Distri c t15 The elements for e stablishing a violation o f § 1326 are "that the defendant (1) is an alien, (2)

was previously deported, and (3) has re-entered the United States without proper permission." United States v. Gomez-Orozco , 188 F.3d 422, 425 (7 th Cir. 1999).
-12- Court's suppression order and the import of Lopez-Mendoza

and cases rely

ing upon it. As our Circuit re

cently observed

, "'The language

in Lopez-Mendoza

should only be int erpreted to me

an that a defendant m

ay be brought bef

ore a court on a

civil o r criminal matter

even if the arrest was unlawful.'" United States v. Guevara-Martinez , No. 00-3855, 2001 WL 9 358 71, at *3 (8th Cir. Aug. 20, 2001) (holding that fingerprints

obtained from an illegal alien as a result of an unconstitutional sea

rch and seizure are suppressible) (quoting United States v. M endoza-Carillo , 107 F. Supp. 2d 1098, 1106 (D.S.D. 2000)). To the extent that Rodriguez or the govern ment in terpreted

the District Court

's suppression order

to bar the present or futur e prosecution

o f Rodriguez under § 1326, 15 such an interpretat ion would violate the Supre me Court's holding in Lopez-Mendoza . We do not re ad the District Court's
o rder to reach so far; under this Circuit's precedent and under Lopez-Mend oza , th e gover nment would not be prohibited

from prosecut

ing Rodriguez for viol

ating § 132 6
so l ong as i t used untainted evidence of his iden tity. See United States v. AldanaRoldan, 932 F. Supp. 1455, 1456 (S.D. Fla. 1996) (holding, in a § 1 326 prosecution, that "the Governme

nt is f ree to prove Defe

ndant's identity so long as it can do so without relying upon the information it obtained from [the] unlawful stop").

IV.

In sum, we conclude that the government did not violate Rodriguez's F ourth Amendme

nt rights. Except fo

r the suppression of Rodriguez's statements m ade to the INS official, which

the government

does not contest,

we reverse the District Court's suppr ession

order and rem

and the case for fu

rther proceedings c

onsistent wit

h thi s opinion.-13-

HEANEY, C

ircuit Judge, dissen

ting.

I respectfully dissent. In my view, the district court correc tly held that

Trooper Koltz’s immigrati

on status questions unreasonably expanded the scope of

the traffic stop because he had no reasonable, articul a ble susp icion o f crimina l activ ity. Therefore, all information obtained from Rodriguez after t he incep tion of this questioning should be suppr essed.
Duringa lawful traffic stop, law enforcement offi cers may engage in an investigation

reasonably related to th e stop. See United St ates v. Ramos , 42 F.3d 1160, 1163 (8th Cir. 1994).“[A] rea sonable investigation of a traffi c stop may include asking for the driver ’s license and registration, re

questing the driver to

sit in the patr ol car, and asking the driver about his destination and purpose.” U.S. v

. Foley , 206 F.3d 802, 805 (8th C ir. 2000) (citatio

n omi tted). If such questioning produces inconsistent answer s, or if the license

and registration are not in ord er, a trooper’s suspicions may

be raised so as to ena

ble him to expand the scope of th

e stop and ask additional, m

ore intrusive questio

ns. Ramos , 42 F.3d at 1163 . If, however,
no answers are inco

nsistent and no objec

tive circumsta

nces supply the tr

ooper with additional susp icion, the trooper s hould not expand the scope of the sto p. See id

.
The majority

concludes, on the basis of United States v. Payner , that Rodriguez cannot establish a violation o f his Fourth Am endm ent rig hts because he had no legitimate expectation of priva

cy in Molina’s

knowledge that he

was illegally present in the United States, and therefore cannot contest Mol ina’s statements. See United States v. Payner

447 U.S. 727, 731 (1980 ). This reaso ning cond ones Troop er Koltz’s improper expansion of the scope of the t r affic stop in order to elicit incrim

inating information

about Rodriguez’s

alienage, and

ignores Ro driguez’s right to challenge the scope and durat ion of the stop.16 Trooper Koltz was entitle

d to conduct a reasona

ble investigatio

n r elated to the trafficstop by asking Molina about the identity of his pa ssenger, and questio

ning the passenger to verify

the informatio

n provided by the

driver. Un ited States v. Edmisten , 208 F.3d 693, 694 (8th Cir. 2000). In this case however, Trooper Koltz did not e ven bother to ask Molina about Rodriguez’s identity. Instead he first asked Molina whether his passenger

was “a legal

alien ”, and wheth er his passe nger h ad “a green card.” United States v. R odriguez-Arreol

a , No. CR 00-40071 (D .S.D. Nov. 2 1,
-14- While it is true that Rodriguez does not hav e standing

to contest the statem

ents madeby Molina, he c an contest his own s tatements if

they were the product of an unreasonably pr otracted traffic stop. The right to be free from un

necessarily prolonged traffic stops

applies to both driver

s and passengers. See U.S. v. Jones , 234 F.3d 234, 241 (5th Cir. 2001) (because continued detention of driver and passenger
was improper afte

r routine questions fa

iled to create reasonable suspicion, both were entitled to suppress evidence obtained as a result o f a subsequent search). A law enforcement

official may

not unreasonably expand the scope of a routine traffic stop in order to obtain incrim

inating informa

tion about the passenge

r of a vehicle

without violating that passenger’s

right to be free from unnecessary governmental de

tention. See id. ; U.S. v. Mesa

, 62 F.3d 159, 162 (6th Cir. 1995) (once the purpose of an initial trafficstop is completed, an officer cannot further detain a vehicle or its occupants unless someth ing that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention) (emphasis added).
Trooper Koltz stopped Molina for speeding. Neither Molina’s nor Rodriguez ’ s immigrati on status was releva

nt to this traffic vi

olation. Theref

ore, without a reasonable

suspicion of additional cri minal activity, the traffic stop and Trooper Koltz’s attendant investigat ion should have conclude d before either Mol

ina or Rodriguez were questioned abou t immigration issues. See U.S. v. Restr epo , 890 F. Supp. 180, 195 (E.D.N.Y. 1995)(“Unnecessarily prolonging a traffic s top f or the purpose of eliciting inform ation about a suspected unconnected violation for which there is no objective basis is not acceptable.”). 162000)(appendix A to Magistrate Judge’s Report and Recommendation).

17 Tr ooper K oltz st ated th at Moli na appe ared ne rvous a nd fail ed to mak e eye contact during the traffic stop, even after he was inf ormed of the reason for the s

top. This cannot be consid ered suspicious because during the traffic stop, Molina was confronted by a suspecting la w enforceme

nt officer who wa

s accompanied b

y a large barkingpolice dog. Although unde r certain circum stances nervousness m

ay be considered suspici ous, und er the facts prese nted here, such ner

vousness was not unusual. See United States v. Beck , 140 F.3d 1129, 1139 (8th Cir. 1998)(“It certainly cannot be deemed unusual for a motorist to exhibit signs of n ervousness when confronted by a law enforcement officer.”).
-15- To justifiably

expand thescope of the traffic stop, Trooper Koltz was required t o observe particular

ized, objective

facts which, tak

en together with ra

tion a l inferences from those fac ts, reasonably

warranted suspici

on that a crime

was being committed

. See United States v. Beck , 140 F.3d 1129, 1136 (8th Cir.1998). Trooper Koltzlisted several factors to support his suspicion of criminal activity, incl uding: the
nervousness of Molina and Rodrigue z; the failure of M

olina and Rodriguez to

make eye contact; the

age difference between Molina and Rodriguez; the lack of a familial relationship

between Molina and

Rodriguez, a car

interior devoid of luggage and debris, and license

plates from the Stat

e of Washington. 17 I agree with the m agistrate judge, and the di strict cou rt judge, th at these fac tors do no t support Trooper Kol tz’s suspicion of drug trafficking activity, nor do they support his suspicion tha t Molina and Rodriguez were ill egal aliens.

As we noted in Beck , factors such as the absence of lugga ge in the interior of
a vehicle, and the pr

esence of out-of-s

tate plates fr om alleged “source” states are insufficient to supp ort reasonable susp icion. See id . at 1137-39. Also, failing to makeeye contact with a ques tioning police office

r, and traveling with an individual of a different age a

nd familial bac

kground, does not indica

te that crimina

l activity is afoot. The government has failed to cite any authority

, nor have I discove

red any, to support the proposition that the se fact ors were adequate to provide reasonabl

e-16-

suspicion. The initial stop by Trooper Koltz in t

his case was p

roper. Howev er, he should have completed the stop by issuing a citation for s pee ding and returning Mol ina’s driver's license. After that point, Trooper Koltz needed a re asonabl e articulable

suspic ion t o detain Molina and Rod riguez for additiona

l investigation. The factors cited

by Trooper Koltz as providing reas onable suspicion, how ever, do not differ from those that

would be exp ected from la w abid ing t ravel ers. B y the ti me Trooper Koltz asked

Molina about Rodriguez’s

immigrati

on status, the scope o f the trafficstop had been im perm issibly expanded and any information obtained afterwards

could not be used to justify further inquiry . I would theref ore affirm t

he judgment of the

district court.

A true co py.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.