United States Court of Appeals

Fifth Circuit



## FILED

August 18, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 02-40719

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REGINALD BRIGHAM,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

Before JONES, WIENER, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-appellant Reginald Brigham appeals the district

court’s denial of his motion to suppress codeine seized during a

routine traffic stop from t he rental car he was driving. He

contends that the investigating officer subje cted him to a

pro longed detention in violation of his Fourth Amendment rights,

which tainted the officer’s subsequent consensual search. Because

we agree that Brigham was unlawfully detai ned, we reverse the

district court and remand for entry of judgment of acquittal.2 BACKGROUND

Shortly after 4:00 P.M., on Sunday, May 14, 2000, while

tur ning his patrol car around on an overpass, Trooper Shannon

Conklin of the Texas Department of Public Safety saw Reginald

Brigham driving over a rise in the highway in the outside lane

following the vehicle in front of him too closely. Conklin decided

to pull over the vehicle, a late model Buick sedan, which contained

three young black males, and one young black female.

He approached the car at approximately 4:13 P.M. and asked

Brigham to produce his driver’s license and car registration and to

step out of the car and move ba ck behind the car to an area in

front of the patrol vehicle. Brigham complied and gave Conklin his

driver’s license and a copy of the rental agreement for the car.

Conklin testified later that while reviewing the license and

rental contract, he immediately noticed that a fifty year old woman

had rented the car but was not present. Standing in the ditch in

front of the patrol vehicle, Brigham asked what the problem was and

Conklin explained that Brigham was following to o closely and

Conklin thought the passenger in the front seat may not have been

wearing a seatbelt. Instead of promptly requesting a computer

check on the driver’s license or car’s papers, Conklin began to

question Brigham, asking him where he was coming from and the

purpose of his travel. Brigham answered that he had been in

Houston on pleasure and one of the passengers had visited family in3

Houston. Conklin continued, asking Brigham which part of Houston

they had stayed in and where they had stayed. Brigham answered

that he did not know which part of Houston they had stayed in and,

after pausing for a moment, answered that they stayed at a La

Quinta Inn. Conklin asked which part of Houston the La Quinta was

located in, to which Brigham first replied that he was not sure and

then said he thought it was the North Highway 59 area. Conklin

then asked Brigham when he had arrived in Houston; Brigham said

Friday. Conklin persisted, asking Brigham to specify what time on

Friday he had arrived. Brigham responded that they had arrived

Friday morning. After three to four minutes of this questioning,

Conklin turned to the rental agreement and asked Brigham who had

rented the car. Brigham responded that his mother, Dorothy Harris,

had rented it. Conklin asked where she was; Brigham told him that

she was in Arkansas.

Conklin later testified that he became suspicious because (1)

the woman who rented the vehicle listed h er age as 50 and thus

could not have been in the car, and (2) Brigham did not share the

same last name as the person who rented the car. Despite noticing

the renter’s age and last name, however, Conklin testified that he

did not notice that (1) the address on Brigham’s driver’s license

was the same as the add r ess listed by Harris on the rental

agreement, or (2) at 50, Harris was of an age that she could be

Brigham’s mother. Conklin also testified that Brigham seemed

nervous, that his hands were shaking, and that he tended to answer1 The record in this case contains a videotape of the traffic

stop. Although Brigham’s responses on the videotape are slightly

unclear, there were only one or two instances where Brigham

answered a question with a question and both instances it appeared

Brigham did not understand Conklin’s question or could not hear the

question because of the traffic noise from the busy highway. The

videotape does not clearly show nervousness.

4 a question with a question. 1

Continuing, Conklin asked Brigham to point out the passenger

who had fam ily in Houston, and also asked if Brigham had any

weapons. Brigham appeared to indicate it was Franklin who had

family in Houston; Franklin was seated in the back seat. Brigham

also responded th at he had no weapons. This was just after 4:17

P.M. Conklin remarked at the time that he wanted to find out in

which part of Houston the friend had family. Conklin approached

the car, asked Brandon Franklin to step out of vehicle and go in

front of the car off the shoulder and into the grass, and requested

Franklin’s driver’s license. The license, which turned out to be

fictiti ous, identified Franklin as Siracrease Brooks. Conklin

began to ask Franklin the same battery of questions that he had

asked Brigham. Conklin first asked where they were coming from.

Franklin re sponded that they had been in Houston and had gone to

see an Isley Brothers concert. Conklin asked when they went to the

concert; Franklin said Friday night. Conklin asked how long they

had been in Houston, and Franklin said they had been there a couple

of days. Conklin asked what day and time they had arrived.

Franklin initially said Friday late afternoon or evening, but then2 Unfortunately, the videotape conversation between the woman

and Perry is not completely clear. But after some confusion, they

5 stated that he was not exactly sure of their arrival time. Conklin

continued by asking Franklin whether he stayed with friends or

family. Franklin said they had stayed at a hotel. Conklin asked

which hotel; Franklin said a La Quinta, as had Brigham. Conklin

asked how often Franklin went to Houston and whether he knew anyone

there. Franklin responded that he did not go there often and that

he knew “a couple of girls” in Houston that he had met at a college

function. Conklin never specifically questioned Franklin if he had

family in Houston.

Between 4:19 and 4:20 P.M., Conklin next approached the

vehicle and asked similar questions of the remaining two occupants,

Quinc y Perry and the young female who had no identification.

Conklin asked where they were coming from, and whether the visit

was for business or pleasure. Perry responded that they had been

in Houston for pleasure. Conklin asked how long they had been

there, and Perry said a couple of days. Conklin asked which day

they had arrived, and Perry initially responded that they had

arrived Friday morning, but the woman suggested that perhaps it was

Saturday morning. Perry then stated that they had stayed one day

and two nights. When Conklin indicated that they could not have

arrived Saturday morning and stayed two nights, Pe rry seemed to

indicate that they had left home Thursday night and arrived in

Houston Friday morning. 2seem to indicate that they left Thursday night and arrived Friday

morning in Houston.

6 Finally, at 4:21 P.M., after almost eight minutes of

questioning the driver and the three passengers about matters

unrelated to the traffic stop or the rental car, Conklin returned

to his patrol car to radio in the personal an d rental car

identification information. Almost immediately, the dispatcher

reported that the rental car had not been reported stolen. Then

for nearly five minutes there was silence and no activity during

which Brigham stood in the ditch behind the rental car, Franklin

waite d in the ditch in front of the rental car, the other

passengers remained in the rental car, and Conklin waited in his

patrol vehicle to hear back from his radio contact on the driver’s

licenses. While waiting, Conklin recorded orally on the videotape

a message to himself that (1) as to the rental agreement, the

subjects were not 25 years old nor listed on the rental agreement

(Harris had rented the car), (2) the subjects seemed nervous (hands

were shaking) and neither Brigham nor Franklin had made eye contact

with Conklin, (3) all four appe ared to lack legal standing as to

the vehicle because they were not listed as authorized drivers, and

(4) they had conflicting stories about arrival time in Houston and

who they had visited there.

At 4:29 P.M., eight minutes after receiving radio contact from

Conklin, the dispatcher report ed that (1) Perry and Brigham had

some crimi nal activity in their backgrounds, but their licenses7

were clear and criminal detai ls were unavailable, and (2) the

license Franklin offered was likely fictitious.

Then Conklin emerged from his car, and aggressively a sked

Brigham what Franklin’s name and age was. After initially not

understanding Conklin’s question, Brigham responded that his first

name was Brandon, and thought his full name was Brandon Franklin.

Conklin then confronted Franklin. Franklin initially tried to

maintain the fake identity, but then admitted that his name was

Brandon Franklin. Then Conklin asked for Franklin’s wallet and

searche d it but found nothing. Thereafter, around 4:33 P.M.,

Conklin called in the new identification and waived over a local

Nacogdoches police car for back-up. He briefed the local police

officers on the situation, and remarked that he was going to try to

get consent to search but would search the vehicle anyway because

none of the four had standing to protest.

After speaking to the local police, Conklin issued Brigham a

written warning for driving too close, which Brigham had to sign.

This was at 4:34 P.M. It is unclear from the videotape whether

Conklin returned Brigham’s driver’s license to him, but Conklin

testified at the suppression hearing that he returned the license.

The record is clear that Conklin launched into his consent to

search request immediately after Brigham signed the warning

citation. At about 4:35 P.M., twenty-one minutes after making

initial contact with Brigham, Conklin informed Brigham that one of

his jobs is to patrol for contraband. He asked for consent to8

search, which Brigham gave. Conklin proceeded to pat down all the

car’s passengers, told Brigham to relax and wait over in the grassy

area of the ditch and told all the other passengers to step over to

the grassy area and sit-down; he later asked them not to talk to

each other. The local officers kept watch over Brigham and the

others while Conklin searched the passenger compartment and trunk

of the vehicle. In a cooler in the trunk, he opened a gallon-sized

opaque plastic fruit drink container, and saw and smelled what he

thought was codeine. The record indicates Conklin also found a

half empty soda bottle of codeine. At 4:43 P.M., Conklin with the

assistance of the local officers pl aced all the passengers under

arrest. After conducting further smell tests on the substance, he

concluded that the substance must be codeine, although later at the

s uppression hearing he admitted to having never actually seized

codeine before.

Brigham was indicted for possession with intent to distribute

code ine, a controlled substance under 21 U.S.C. §841(a)(1). He

filed a motion to suppress the seized evidence, arguing that he had

been unlawfully detained in violation of the Fourth Amendment. The

district court held a suppression hearing, but denied the motion.

Brigham entered a plea agreement and made a plea of guilty,

conditioned upon his right to appeal the denial o f his motion to

suppress, which was approved by the court. He was sentenced to two

months’ imprisonment and one year of supervised release. He timely

appealed.9 DISCUSSION

Standard of Review

When addressing denials of motions to suppress, we review the

district court’s factual findings for cle ar error, and its

“ultimate conclusions on Fourth Amendment issues drawn from those

facts de novo .” U nited States v. Santiago

, 310 F.3d 336, 340 (5th

Cir. 2002) (citation omitted). We also review the evidence

introduced at the suppression hearing in the light most favorable

to the prevailing party. Id. (citation omitted).

Standing

This appeal focuses on whether Brigham was unlawfully detained

during the traffic stop. Brigham has standing to contest this

seizure of his person. U nited States v. Dortch

, 199 F.3d 193, 198

(5th Cir. 1999).

Reasonableness of the Detention

Brigham argues that Conklin’s seven to eight minutes of

questioning before beginning a computer check violated his Fourth

Amendment rights, because this initial questioning had nothing to

do with either the original reason for the stop (following too

closely), or any subsequent suspicions about whether the rental car

was stolen. Thus, the detention unreasonably extended the duration

of the traffic stop, a nd was not the least intrusive means of

resolving concerns about the rental contract. Brigham also

contends that Conklin unreasonably detained him after the computer10

check on his drivers license and the rental car had come back clean

and he had signed the warning citation. Brigham argues that the

computer check as to the car and his license was finished, and thus

his detention beyond that point was unreasonable.

In response, the government argues that Conklin’s questioning

was a reasonable and minimally intrusive attempt to ascertain why

Brigham was driving a car not rented in his name. The government

c ontends that once Conklin confronted inconsistencies in the

stories of the car’s occupants, he had an additional reason to

continue the detention. Furthermore, the government argues, the

sequence in which Conklin conducted his investigation, questioning

first and computer check second, instead of questioning during the

computer check, is immaterial because Conklin would have discovered

Franklin’s false identification regardless, thereby giving the

officer reason to continue the detention. Finally, the government

points out that Conklin asked for consent to search the vehicle

before this add itional computer check on Franklin was even

completed.

Our decisions have consistently relied on T erry v. Oh io to

establish a two prong test that governs the permissible scope of a

traffic stop. 392 U.S. 1 (1968). The reasonableness of the

detention depends on (1 ) “whether the officer’s action was

justified at its inception,” and (2) “whether it was reasonably

related in scope to the circumstances which justified the

interference in the first place.” D ortch

, 199 F.3d at 19811

(citation and internal quotation marks omitted). In this case, the

validity of the initial stop for driving too closely behind another

vehicle is not contested on appeal.

In applying t he second p rong of Terry

, we have consistently

recognized that “‘an investigative detention must be temporary and

last no longer than is necessary to effectuate the purpose of the

stop.’” I d. at 200 (quoting Florida v. Royer

, 460 U.S. 491 , 500

(1983)). The Supreme Court has further explained that “the

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.” F lorida v. Royer

, 460 U.S. 491, 500

(1983) (citations omitted). Nonetheless, the Supreme Court has

counseled that such least intrusive means must be balanced against

the law enforcement purposes of the stop and “the time reasonably

needed to effectuate those purposes.” U nited States v. Sharpe

, 470

U.S. 675, 685 (1985) (citations omitted). Finally, when evaluating

whet her there was reasonable suspicion sufficient to justify an

extended detention, we “look at the totality of the circumstances

and consid er the collective knowledge and experience of the

officers involved.” U nited States v. Jones

, 234 F.3d 234, 241 (5th

Cir. 2000) (citing United States v. Holloway , 962 F.2d 451, 459 &

n.22 (5th Cir. 1992)).

The primary law enforcement purposes for making a traffic stop

of a moving vehicle on a public highway are: (1) to verify that a

violation of the traffic laws has occurred or is occurring and, (2)12

to provide for the issuance of an appropriate ticket or citation

charging such traffic violation or make an arrest of the driver

based upon such violation. In furtherance of these purposes, the

police officer is authorized to require the driver of the vehicle

to produce a valid driver’s license and documentation establishing

the ownership of the vehicle and th at required public liability

insurance coverages are in effect on such vehicle. During the

process of such a traffic stop, the police officer making the stop

may and should use his senses of sight, smell a nd hearing to

observe any other conduct or activity which might constitute a

violation of any other criminal statute, but the officer must be

able to articulate the specific facts and circumstances which

prompt him to be suspicious of other criminal conduct before he

initiates any actions to investigate such other conduct.

On more than one occasion in recent years, we have had the

opportunity to evaluate traffic stops in which the car is rented

and the driver is not listed on the rental agreement. From these

cases it is clear that any detention beyond the completion of a

computer check is unlawful unless there is additional “reasonable

suspicion supported by articulable facts that a crime has been or

is being committed.” S antiago

, 3 10 F.3d at 342 (citations

omitted).

It is established that when a valid traffic stop occurs, the

officer may run a computer check on the driver’s license and

registration or rental car papers. D ortch

, 199 F.3d at 198; United3 Although Judge Jones in her dissent suggests that the

Dortch

, Jones

, and Santiago line of cases was incorrectly decided,

this Circuit has not agreed with her assessment. In neither D ortch

nor Jones was there even a call for a vote to rehear t he case e n

banc

. In Santiago the mandate was held and a poll for e n banc

reconsideration was taken, but a majority of the active judges of

this Circuit voted not to rehear the case and on March 20, 2003, a

denial of rehearing en banc was issued. Therefore, our reliance on

these cases as the law of this Circuit concerning the

reasonable ness of a traffic stop is not only appropriate but

required.

13 States v. Shabazz

, 993 F.2d 431, 437 (5th Cir. 1993). Furthermore,

in Shabazz

, we permitted questioning, even if unrelated to the

purpose of the stop, that took place while the officers were

waiting for the results of the computer check, because such

questioning did not prolong the time of the initial valid seizure.

993 F.2d at 436-37. In U nite d States v. Dortch , however, we

concluded that once the computer check is completed and there is no

warrant for arrest of the driver or report that the car was stolen,

reasonable s uspicion of auto theft vanishes and any further

detention becomes an unlawful seizure. 199 F.3d at 199.

Similarly, in United States v. Jones

, we concluded that the

additional three minutes of prolonged detention after the computer

check came back clean violated the Fourth Amendment. 234 F.3d at

241

. Finally, in U nited States v. Santiago

, we reiterated our

position that once an officer has completed his computer check and

it comes back negative, thereby dispelling the suspicion that

justified the check, any additional detention is unreasonable. 310

F.3d at 342. 314

As the government has been quick to highlight, the facts of

this case differ from those of Dortch

, Jones and Santiago as to the

timing of the computer check. In D ortch

, two highway patrol

officers stopped Cecil Dortch for driving too closely to a tractor

trailer. 199 F.3d at 195. The officers discovered that the car

was rented and that Dortch was not listed as an authorized driver.

Id. One officer immediately took Dortch’s driver’s license and

r ental contract to perform a computer check, while the other

officer questioned Dortch and the passenger about their business.

Id. at 196. They gave inconsistent answers about Dortch’s

relationship to the vehicle’s renter, and stated that they had been

in Houston for two days although the rent al agreement indicated

that the car had been rented in Pensacola, Florida the day before.

Id. After the computer check came back clean, the officers

continued to detain and question Dortch until a canine search unit

arrived. I d. Even though the officers eventually discovered drugs

on Dortch’s person, we ultimately held that this detention violated

the Fourth Amendment.

In Jones

, two police officers pulled over Jones and Daniel for

speeding. 234 F.3d at 237. Like D ortch

, Daniel was driving a

rental car rented by a third person, and Daniel was not listed as

an authorized driver. I d. The officers questioned Jones and

Daniel extensively about their business. I d. at 237-38. The

officers first took Daniel to the patrol car, ran a computer check

on his criminal history, and continued question ing him about the15

nature of the trip. I d. The second officer then approached Jones

to question him about Daniel’s business dealings, an d requested

Jones’s license to do a similar computer check. I d. at 238. After

a few minutes, the dispatcher reported tha t neither Jones nor

Daniel had a criminal history. I d. Notwithstanding this

information, one officer continued to question Jones when returning

his driver’s license, and then asked Daniel for consent to search

the vehicle, without having returned the rental agreement or his

license to him. Id. Even though the request to search occurred

only three minutes after the negative computer check was completed,

we still held the prolonged detention to be unlawful.

Finally, in Santiago

, the officer pulled over Santiago because

he noticed a flashing light in Santiago’s windshield. 310 F.3d at

337. Once the officer stopped the car, he noticed that it was a

trinket hanging from the rear view mirror. I d. at 337-38. The

officer asked Santiago to exit the car, and proceeded to question

him about the nature of his trip and the identity of the woman in

the passenger seat. Id. at 338. The officer then approached the

vehicle and asked the woman for her driver’s license and the car’s

registration, which Santiago had said was in the car. I d. The

trooper returned to Santiago with the woman’s license, but without

the registration, which Santiago subsequently ret rieved from the

car. I d. In the belief that the trinket hanging from the rear

view mirror violated a stat e statute, the officer conducted a

computer check on Santiago’s license and registration. I d. After16

the checks came back negative, the officer continued to question

Santiago about the car’s registration. I d. at 339. Before

allowing Santiago to leave, he asked for and obtained consent to

search, from which he disco vered drugs. I d. As in D ortch and

J ones , however, we found this detention unlawful because it

extended beyond the negative computer check.

Nevertheless, the completion of a co mputer check is not the

exclusive dividing line between constitutional and unconstitutional

detention. Ultimately, as the Supreme Court has reiterated, the

“scope of the detention must be carefully tailored to its

underlying justification.” R oyer

, 460 U.S. at 500. Although mere

questioning may not violate the Fourth Amendment, that “is not to

say that questioning is unrelated to the determination that a

detention has exceeded its lawful duration.” S habazz

, 993 F.2d at

436. We have concluded that “questioning unrelated to the

justification for the stop that extends the duration of the stop

violates the Fourth Amendment.” U nited States v. Machuca-Barrera

,

261 F.3d 425, 432-33 n.21 (5th Cir. 2001) (citing Shabazz

, 993 F.2d

at 437). In such circumstances, the scope of the detention exceeds

the underlying justification and thus is unconstitutional.

To determine whether questioning is unrelated to the purpose

of a stop, we must examine the identifiable reaso nable suspicion

that justified the detention. An officer may take the time

neces sary to investigate such reasonable suspicion, but when his

que stioning extends beyond that reasonable suspicion, a nd it4 T he factual circumstances of S antiago also may have

permitted reasonable suspicion of the abduction of the children

that were in the car. 310 F.3d at 342.

17 lengthens the duration of the stop, the detention is unreasonable.

The linchpin for analyzing the reasonableness of a detention,

therefore, is the scope of reasonable s uspicion, i .e.

, the

reasonable suspicion that justified the detention, rather than the

completion of a computer check.

Our case law abundantly demonstrates the focus we have placed

on the scope of reasonable suspicion in deciding whether a

detention was lawful. Dortch

, Jones and Santiago emphasized that

the circumstances surrounding the respective detentions, in keeping

with the totality of the circumstances approach which is applied,

permitted only a reasonable suspicion of a stolen car. 4 The D ortch

court concluded that suspicious and inconsistent answers, Dortch’s

alleged nervousness, confusion as to the relationship of Dortch to

the vehicle’s renter, and Dortch’s absence as an authorized driver

on the rental contract “gave rise only to a reasonable suspicion

that the car might have been stolen.” 199 F.3d at 199. None of

this evidence, the Court held, created a “reasonable or articulable

suspicion that Dortch was trafficking in drugs.” I d. Similarly in

Jones

, we concluded that inconsistent answers about the driver’s

employment and the driver’s acknowledgment that he had been

arrested previously on a crack cocaine charge were “at best

trivial” grounds for reasonable suspicion of drug trafficking, and18

even less suggestive than the evidence put forward in Dortch

. 234

F.3d at 241-242. In S antiago

, we concluded that extreme

nervousness, potentially inconsistent stories between Santiago and

his female passenger, and other possibly suspicious answers did not

establish “reasonable or articulable su spicion that Santiago was

trafficking in drugs . . . .” 310 F.3d at 338-39, 342 (citing

Dortch and Jones to similar effect). Because the only permissible

reasonable suspicion was dispelled wh en the computer checks came

back, we found any additional detention unlawful. Finally, to

confirm that the permissible scope of reasonable suspicion, and not

the computer check, guides our reasonableness analysis, we even

have held that detaining someone until the completion of a computer

check can unreasonably prolong detention. In U nited States v.

Valadez

, we concluded that once the police determined that the

vehicle’s window tinting was legal (the reason for the stop), there

was no reason to detain the defendant further, not even to wait for

the completion of a computer check on his license. 267 F.3d 395,

396, 398 (5th Cir. 2001). In short, we have strictly limited the

scope of the detention to t he identifiable reasonable suspicion

that originally justified the stop.

In this case, the justification for the stop, driving too

closely, permitted Conklin to require Brigham to show his driver’s

license and the car’s papers. D ortch instructs that, upon noticing

that Brigham was not authorized to drive the rental vehicle and

that the renter of the vehicle was not present, Conklin then had a5 In our view the “simplest, quickest and least intrus ive

means” to satisfy an officer’s suspicion that a vehicle might be

stolen is to immediately run a computer check on the vehicle’s

license plate to see if it has been reported stolen. If it has,

the officer has probable cause to arrest the driver and occupants

for possession of a stolen vehicle and to search the vehicle

consequent upon such arrest. If the vehicle has not been reported

stolen, the officer’s suspicions, based on facts like those in this

case, can no longer justify extension of the stop to investigate

that suspicion.

6 We note that at one point on the videotape immediately

before he asked Brigham for consent to search, Conklin told Brigham

that one of his “jobs is to patrol for contraband.” Likewise, in

a conversation which Conklin had with the local police officer on

19 valid reasonable suspicion about whether the car was stolen. 5 Any

suspicion of drug trafficking, however, was not warranted.

Conklin’s methodology, questioning unrelated to the traffic

violation for eight minutes before commencing the computer check,

is merely an impermissible variation on the same Dortch / Jones tune:

If a stop is unconstitutionally prolonged by continued questioning

after a computer check is complete, then delaying the commencement

of the computer check and asking unre lated questions during such

delay is equally proscribed. Conklin certainly prolonged the

detention, as he could have (and should have) started the computer

check before beginning his extensiv e questioning. The fact that

the prolongation is caused by ex ante rather than post hoc

questioning matters not.

There is ample evidence that (1) Conklin’s initial questioning

served drug interdiction purp oses rather than the purpose of

determining whether the rental car was stolen, 6 and (2) suchthe videotape, he advised that local officer that he was going to

“try to get consent to search, but would search anyway because none

of the occupants had standing to protest.” A search of a vehicle

if you suspect the presence of drugs might make some sense; a

search of a vehicle if you suspect the vehicle is stolen has

virtually no likelihood of finding anything relevant.

20 questioning was simply unrelated to the scope of the stop, thereby

unreasonably prolonging the detention. When Conklin received

Brigham’s license and the rental contract, he had valid reason to

wonder whether the car might have been stolen. He testified that

he quickly realized that t he woman who rented the car was not

present; but he failed to notice that the address on Brigham’s

license and the address of the renter were identical, even though

Brigham had identified the renter as his mother. And although

Conklin noticed that the renter, Harris, was 50 years old, and that

Brigham was under 25 years old, the officer did not recognize that

Harris was an appropriate age to be Brigham’s mother. In short,

the data plainly in front of Conklin was that (1) Brigham was not

authorized to drive the car, (2) Harris was not present,

( 3) Brigham and Harris shared the same address, and (4) the age

difference between Harris and Brigham was characteristic of a

parent-child relationship, which was the information given in

response to Conklin’s question.

Rather then ask Brigham more about the rental agreement,

howev er, Conklin launched into a series of unrelated questions

about the particulars of Brigham’s trip. When Conklin finally did

ask who had rented the vehicle, and Brigham responded that it was21

his mother, it was proper for Conklin to notice, for whatever it is

worth, that they did not share the same last name. It was a

significant oversight, however, to fail to notice that the

addresses of both persons and their age differences corroborated

Brigham’s answer. Instead of questioning whether Brigham’s mother

had given him permission to use the car and quizzing Brigham on

personal information put down by Harris on the agreement, questions

t hat might have resolved whether Harris was really Brigham’s

m other, or simply doing a computer check on his license and o n

whether the car was reported stolen, Conklin then approached each

of the other passengers seriatim and repeatedly posed the same

battery of un related questions to each of them. Rather than ask

the passengers about Brigham, how he had gotten the car , and who

Dorothy Harris was, Conklin asked each passenger the same detailed

questions about their trip. We cannot perceive how identifying the

hotel at which they stayed in Houston was more likely to uncover

whether the car was stolen than questioning them about the

vehicle’s renter and how Brigham had obtained the car.

Furthermore, our review of the record in this case indicates

that the stories of Brigham and his companions were more consistent

than in consistent. All persons Conklin questioned told him they

were on a trip for pleasure and were coming back from Houston. In

addition, the two individuals Conklin asked about lodging (Brigham

and Franklin) told him that the group had stayed at a La Quinta

Inn. Third, the stories they gave as to the time of arrival in22

Houston were only marginally inconsistent. Brigham told Conklin

that they had arrived Friday morning; Franklin indicated that they

had arrived later on Friday, but then said he was not exactly sure

what time on Friday they had arrived; and after some confusion

between the other two passengers, they indicated that they had

arrived Friday morning. Thus, all the car passengers put their

arrival in Houston at some time on Friday. The only fairly likely

inconsistency resulted when Conklin asked Brigham and Franklin who

they knew in Houston: Brigham said they knew family of Franklin’s,

but Fra nklin said he knew “a couple of girls” there and never

denied having family in Houston.

The government argues that the initial period of questioning

is immaterial because Conklin also could have begun the computer

checks immediately, and questioned the defendant and other

passengers while the checks were running. Assuming that Conklin

would otherwise have conducted the stop the same way, the

government’s argument continues, he would have discovered

Franklin’s false identi fication, giving him adequate reason to

extend the detention, and then ask for consent to search the

vehicle. In its brief, the government points out that the facts of

Jones illustrate a similar pattern of questioning before th e

computer check, and argues that our lack of criticism of this

method in Jones supports its reasonableness here. Our opinion in

Jones

, however, shows fairly clearly that we found the facts of

that case most analogous to Dortc h , because both cases involved7 Our search of the statutes of the State of Texas failed to

turn up any statutory provision which requires a passenger in a

vehicle to carry his driver’s license or any other type of

identif ication so long as he is just a passenger. Likewise, we

found no statutory provision which would attribute liability to a

passenger for a traffic violation committed by the driver, such as

“following too close” in this case. We have doubts therefore that

the reason for the initial traffic stop ( i.e.

, following too close)

in this case gives the trooper any ground for suspicion of criminal

conduct on the part of a passenger. If a police officer arrests an

individu al, that person is required to give his true name,

residence address and date of birth to the arresting officer. S ee

Texas Penal Code § 38.02. None of the passengers in the vehicle in

this case were arrested at the time of the initial traffic stop.

23 detention after the completion of a computer check. Based on such

similarities with recent precedent, there was simply no need to

scrutinize the questioning that occurred before the computer check.

Additionally, it is true that a police officer may run a computer

check on a driver’s driver’s license and registration or insurance

papers. S habazz

, 993 F.2d at 437; Dortch

, 199 F.3d at 198. It is

less clear, however, whether police may run checks on passengers’

licenses. 7 We need not, and therefore do not, decide that issue in

this case because instead we are able to conclude that the precomputer check que stioning made the detention unreasonable. In

Jones

, the court did not have to directly address this issue

because the d efendants appeared to concede that the police could

request and run a computer check on both defendants’ licenses. 2 34

F.3d at 240.

Nonetheless, even considering Franklin’s fake identification

as a factor, the government’s argument misses the whole point.

Although it may be true that Conklin could have used a method that24

is less open to criticism, the fact remains that he failed to use

the least intrusive means. The Supreme Court has firmly stated

that “an investigative detention must be temporary and last no

longer than is necessary to effectuate the purpose of the stop.

Similarly, the investigative methods employed should be the least

intrusive means reasonably av ailable to verify or dispel the

officer’s suspicion in a short period of time.” R oyer

, 460 U.S. at

500. It is true that Conklin could have collected Brigham’s

license and rental car papers to run them through a computer check,

and then questioned Brigham and his companions while this check was

being run, but this only illustrates that Conklin’s actual conduct

was not the “least intrusive means reason ably available.” Here

Conklin took an extended amount of time to ask unrelated questions

which made the detention unreasonable.

We also recognize that some of our previous cases discussing

the reasonableness of a detention focused on the impermissi ble

ques tioning that occurred toward the e nd of a traffic stop. In

Shabazz

, we noted that “the nature of the questioning during a

later portion of the detention may indicate that the justification

for the original detention no longer supports its continuation.”

993 F.2d at 436. In D ortch

, Jo nes and Santiago

, moreover, our

emphasis was on questioning that took place after the computer

checks returned. Although this case concerns a period of

questioning that occurred before the computer check, we see no

principled distinction between th e circumstances here and those25

that have come before. We cannot countenance an effective end-run,

even if inadvertent, around our recent precedent, which extensive

pre-computer check questioning on matters unrelated to the

j ustification for the stop ultimately achieves. Obviously, if a

police officer is prohibited from extending questioning beyond the

computer check on matters outside the scope of permissible

reasonable suspicion, he is equally prohibited from burning such

time and intruding in such a way to investigate an impermissible

reasonable suspicion before he initiates the check. Otherwise, the

officer could easily and completely circumvent the constitutional

guarantees afforded to individuals detained during traffic stops

simply by embarking on such questioning b efore the check rather

than afterwards. Regardless of when these questions are posed, if

they are unrelated to the reason for the which the traffic stop was

made (here “following too closely”) or to the suspicion that the

driver is wanted or the car was stolen, and th ey extend the

duration of the stop, the detention becomes unlawful.

Final ly, holding that this type of detention is reasonable

likel y would put at risk a large segment of the population for

reasonable suspicion of drug trafficking and concomitantly the same

type of intrusive detention that occurred in this case. In D ortch

,

we recognized that upholding the officer’s conduct would be

tantamount to finding that “officers have reasonable suspicion to

suspe ct drug trafficking anytime someone is driving a rental car

that was not rented in his name.” 199 F.3d at 199. The same8 This group potentially includes all children who drive a

parent’s car but have a different last name than that parent, a

spouse who drives a car registered to a spouse whose last name he

or she does not share, and anyone who borrows a car from a friend.

26 conclusion can be drawn here: Upholding the prolonged, extensive

questioning in light of the dearth of evidence that Trooper Conklin

had at his disposal before a computer check was even initiated

would seem to allow police to suspect drug trafficking or other

illegal activity of anyone who is driving a car registered to

someone who is no t present in the vehicle or who has a different

last name. It would not appear to matter whether the driver is

operating a car rented in another’s name or owned in another’s

name; the police would still be confronted with a driver’s license

and registration and insurance papers that do not match up. 8

Deciding this case as the government requests would effectively

permit the police to ignore the explanation given by the driver,

and such corroborating evidence as having the same address, so as

to pursue prolonged questioning a nd develop further reasons to

detain —— a quintessential fishing expedition.

We do not imply that questions like those asked by Trooper

Conk lin are themselves off limits to police officers conducting

traffic stops. Under other circumstances, such as while awaiting

a report from a timely initiated computer check, we have allowed

these types of questions in previous cases. Neither do we want to

put ourselves in a position that forces us constantly to secondguess the sequence of police questioning. S ee Dortch

, 199 F.3d at27

200 (finding that courts “‘should not i ndulge in unrealistic

second-guessing’ of the methods employed by the offi cers on the

scene”) (citing United States v. Sharpe

, 470 U.S. 675, 686 (1985)).

In this case, however, Conklin’s questioning indisputably extended

Brigham’s detention, yet was at best unrelated to the permissible

scope of his reasonable suspicion and at worst illustrated his

suspicions of d rug trafficking or illegal activity other than a

s tolen car or a driver with “wants and warrants.” The evidence

before Conklin, in conjunction with the narrow scope of his

detention to investigate whether the car was stolen, did not

justify questioning that unlawfully prolonged Brigham’s detention

in violation of the Fourth Amendment. S ee Sharpe

, 470 U.S. at 686-

87 (stating that detention is unlawful when “police act[]

unreasonably in failing to recogn ize or to pursue [alternative

means to a seizure,]” not simply when a judge is able to conceive

of other alternatives).

Validity of Brigham’s Consent

It is well established in this Circuit that “[c]onsent to

search may, but does not necessarily, dissipate the taint of a

[F]ourth [A]mendment violation.” U nited States v. ChavezVillarreal

, 3 F.3d 124, 127 (5th Cir. 1993). To show valid consent

after an unlawful detention, the government has the heavier burden

of establishing that (1) “consent was voluntarily given,” and

(2) such consent “was an independent act of free will.” Id.28

Normally, the district cour t’s conclusion as to the

voluntariness of consent is a finding of fact based on a totality

of the circumstances, which we only review for clear error.

Shabazz , 993 F.2d at 438. The district court concluded, in light

of the available evidence, that Brigham ’s consent was voluntary.

Given the deferential standard of review from which we operate, we

cannot conclude that the court was clearly erroneous. Because the

district court in this case did not find an unlawful detention,

however, it did not consider the second prong of the analysis ——

whether consent was an independent act of free will. As a result,

we owe no special deference when determining whether consent was an

independent act of free will. See Dortch , 199 F.3d at 201-02.

In determining the validity of consent after illegal

detention, the second prong focuses on the “causal connection with

the constitutional violation” and requires e xamination of three

factors “[t]o determine whether the causal chain was broken . . .

.” Chavez-Villarreal , 3 F.3d at 127-28. We consider: “(1) the

temporal proximity of the illegal conduct and the consent; (2) the

prese nce of intervening circumstances; and (3) the purpose and

flagrancy of the initial misconduct.” Id. at 128.

First, there is some ev idence that the temporal proximity

between the i llegal conduct and consent in this case is not as

close as it was in Jo nes and Dortch

. Between the intrusive

questioning and Brigham’s later consent was a period of at least

ten minutes during which Conklin conducted a computer check and29

Brigham waited on the side of the road. This span of time,

however, did not mitigate the violation. Indeed, the period

subsequent to Conklin’s initial questioning exacerbated the taint

of the illegal conduct. The entire prolonged detention, which

included the initial questioning and the co mputer check, did

immediately precede Brigham’s consent. Brigham was still outside

of his car and local Nacogdoches po lice had arrived to back up

Conklin when Conklin asked for consent. Finally, Conklin appeared

to become mo re aggressive upon discovery of Franklin’s fake

identification. Thus, even though Brigham’s actual consent

occurred over ten minutes after the initial questioning, none of

the interceding events would have given him any basis for believing

that he was free to leave.

Second, as described above there were no intervening

circumstances between the detention and the consent such that

Brigham would have sensed he could leave. Conklin never informed

Brigham that the check on the car and his license had come back

clean, he intensified his demeanor as the stop wore on, and the

local police arrived as back-up. In short, Brigham was still

detained when Conklin requested consent to search the vehicle. In

fact, for the entire duration o f the stop up until the search,

Brigham was away from the rental car and next to the patrol

vehicle, while Franklin was in front of the rental car off into the

ditch, and the other passengers were in the car. After asking for

consent, Conklin patted down Brigham and instructed Brigham to wait30

off in an area behind the rental car. Brigham and the other

passengers were watched by the local police officers and at one

point told not to speak to each other.

Third, the purpose and flagrancy of the initial misconduct is

fairly transparent. We have already recognized that even when an

officer’s purpose cannot be known, his intentions may be gleaned

from the record and videotape. Dortch , 199 F.3d at 202. In this

case, there is even less of an inferential leap than was required

in Dortch

. Conklin’s immediate questioning of Brigham was

completely unrelated to determining why Brigham had a rental car he

was not authorized to drive or to t he purpose of the stop, which

was f ollowing too closely and a possible seatbelt violation.

Conklin overlooked fairly obvious indications, e.g. , that Brigham

a nd Harris shared the same address, which suggested Brigham was

telling the truth. He persisted in intrusive questioning of all

the other passengers about matters that were not related to how

Brigham came into possession of the rental car. Finally, before he

learned about Franklin’s fictitious license, he noted that it was

probable none of the passengers had standing to contest a search;

and later he elaborated on this thought by remarking that because

there was no standing he would probably search even if Brigham did

not consent.

In sum, after evaluating these three factors, we conclude that

Brigh am’s consent was not an independent act of free will. As a

result, his subsequent consent does not cure the Fourth Amendment31

violation.

CONCLUSION

Having carefully reviewed the record of this ca se, the

parties’ respectiv e briefing and arguments, for the reasons set

forth above, we vacate Brigham’s conviction and sentence and remand

for entry of a judgment of acquittal.

ENDRECORD32

EDITH H. JONES, Circuit Judge, dissenting:

I r espectfully dissent. Based on their own appellate

fact finding, the majority have further narrowed what o ur court

permits as law enforcement activity during traffic stop detentions.

See United States v. Santiago

, 310 F.3d 336 (5th Cir. 2002); United

S tates v. Jones

, 234 F.3d 234 (5th Cir. 2000); United Stat es v.

Dortch

, 199 F.3d 193 (5th Cir. 1999). Although the majority’s

holding is far fro m clear, its import seems to be that if a law

enforcement officer’s questions to vehicle occu pants may be

construed as serving “drug interdiction purposes”, and the

questions occur before he runs computer checks on the ownership of

the vehicle and the occupants’ identifications, the scope and

length of the detention are unconstitutionally prolonged.

This is new territory indeed. Dortch and Jones rigidly

applied the rule that a prolonged detention after the completion of

a traffic stop may be unconstitutional. In both those cases,

however, the officers asked vehicle occupants nearly the same

series of questions that were posed here, yet this court never

criticized the questions. J ones

, 234 F.3d at 237; Dortch

, 199 F.3d

at 195-96. The district court analyzed this case according to

Dortch and Jones and found no inconsistency. The majority now

states, on one hand, that in a “legitimate traffic stop,” the

officer may investigate the occupants’ right to possess the33

vehicle, but on the other hand, the questions asked here somehow

went beyond that purpose. In any event, according to the majority,

the investigation did not use the least intrusive means, since the

officer might have asked the very same questions during the

computer check of occupants’ identifications, but instead chose to

ask those questions before the check began; the detention was thus

unconstitutionally prolonged by his inefficiency.

So many p roblems arise from this opinion that one

scarcely knows where to start listing them. First, the panel

majority is wrong in asserting that Trooper Conklin’s methodology

made an “end-run” around Dortch and Jones

. The majority opines

that Trooper Conklin should have qu estioned Brigham and his

companions while conducting the computer records check, and that

“delaying t he commencement of the computer check and asking

unrelated q uestions during such delay [are] equally proscribed.”

In Jones

, the officer questioned the vehicle occupant s for seven

minutes before initiating a computer check. 234 F.3d at 237. Yet

no criticism of that aspect of police activity appears in this

court’s opinion.

Further, the majority’s conclusion contradicts the

holding of this court in United States v. Roberson , 6 F.3d 1088

(5th Cir. 1993). In R oberson

, a state troope r pulled over a

minivan for failure to signal a lane change. Id. at 1089. After

the car pulled over, the state trooper approached the vehicle and34

instructed McCleod [the driver] to produce her driver’s

license, registration, and proof of insurance. McCleod

informed him that the car was leased by a third party and

produced a copy of the lease agreement. The lease to one

Cheryl Allen did not identify McCleod as an authorized

driver and the lessee was not among the passengers.

Trooper Washing ton began to suspect that the vehicle

might have been stolen. At this point, McCleod

volunteered that she was a friend of Allen and that Allen

was in St. Louis. McCleod claimed to be returning home

after taking her mo ther to her grandmother’s home in

Houston.

Trooper Washington then asked the passengers for

identification. Roberson [a passenger] could not produce

a driver’s license , but claimed responsibility for the

car, stating that Allen had loaned it to him. Roberson

told the trooper that Allen was still in Houston and

would be returning to St. Louis in another vehicle. His

suspicion further aroused, Trooper Washington decided to

call Deputy David Deter for backup.

Id. at 1089-90. After Deputy Deter arrived, the officers asked the

driver her grandmother’s phone number and address. Id. When the

driver was unable to answer, the officers asked for consent to

search her car. After receiving consent, the officers discovered

6.99 k ilograms of cocaine. The court concluded that such

questioning, which appears to be v irtually identical to the

questioning performed by Trooper Conklin, neither impermissibly

prolonged the detention nor vitiated the driver’s consent to

search. I d. at 1092-93 (citing United States v. Shabazz

, 993 F.2d

431, 437 (5th Cir. 1993) and Schneckloth v. Bustamonte

, 412 U.S.

218 (1973)).35 Not only does the majority’s decision conflict with the

prior precedent of this circuit, but it also conflicts, or at least

is in tension with, the precedent of at least five other circuits.

United States v. Burton

, 2003 U.S. App. Lexis 13426 at *12-14 (6th

Cir. July 2, 2003) (holding that asking questions of the driver of

a car being ticketed for illegal parking that were unrelated to the

issuance of the citation was permiss ible); U nited States v.

Gregory

, 302 F.3d 805, 809 (8th Cir. 2002) (holding that

questioning of driver and passenger regarding identity and travel

plans prior to run ning computer check was reasonable for Fourth

Amendment purposes), cert. denied , 123 S. Ct. 1815 (2003); United

States v. Childs , 277 F.3d 947, 954 (7th Cir.) (en banc) (stating

that brief questioning unrelated to traffic stop th at occurred

prior to commencement of computer check did not unconstitutionally

prolong detention), cert. denied

, 123 S. Ct. 126 (2002); U nited

States v. Sowers

, 136 F.3d 24, 27-28 (1st Cir. 1998) (affirming

denial of suppression motion where officer engaged in questioning

of driver and passenger regarding the “extent, purpose, and details

of their travels” prior to running computer check); United States

v. Hardy , 855 F.2d 753, 757 (11th Cir. 1988) (affirming denial of

suppression motion and noting that fifteen minutes of questioning

regarding travel plans and travel history prior to running computer

check was part of investigation of the traffic violation).36 Sec ond, the majority finds, without citing a shred of

record support and without any support fr om the district court’s

findings, t hat Trooper Conklin’s questions about the Brigham

party’s trip were for “drug interdiction purposes.” This de novo

fact finding is contrary to two principles: we are bound, absent

clear error, by the district court’s findings of fact in

suppression cases, and on appeal, we are to review the findings in

the light most favorable to the prevailing party, here, the

gover nment. J ones

, 234 F.3d at 239. The district court found

that:

Trooper Conklin’s detention of Defendants was reasonably

related to the circumstances which justified the

interference in the first place. Trooper Conklin was

entitled to ask Brigham for his license and registration.

See Shabazz

, 993 F.2d at 437. Upon examining the rental

contract and discovering that the only person authorized

to drive the vehicle was not in it, it was reasonable for

the Trooper to br iefly question why Brigham, an

unauthorized driver pursuant to the terms of the rental

contract, was in the car. Trooper Conklin justifiably

became suspicious when Franklin told him Defendants had

gone dow n to Houston for an Isley Brothers concert and

that he knew a couple of girls (but made no mention of

family in Houston when the Trooper asked him if he knew

anyone else in Houston), whereas Brigham had told him

that they were visiting Franklin’s family. Defendant

Perry’s explanation was inconsistent with both the

explan ation offered by Brigham and that offered by

F ranklin. The absence of the authorized driver, the

inconsistent explanations as to the trip to Houston, and

Franklin’s presentation of a fictitious I.D., taken

together, justified Trooper Conklin’s continued detention

of Defendants. Accordingly, Defendants’ motions to

suppress evide n ce on the basis that their detention

exceede d the reasonable scope of the stop’s original

purpose are denied.37

The major ity, without explanation, discredits these findings to

which this court should defer.

Even on its own terms, the majority’s finding makes

l ittle sense, as the trooper’s line of questioning was obviou sly

germane to investigating Brigham’s right to possess the vehicle and

to many other benign or law enforcement-related purposes.

T he Fourth Amendment grants an officer conducting a

routine traffic stop latitude to check the driver' s

identification and vehicle registration, ask the driver

to step out of his vehicle and over to the patrol car,

inquire into the driver’s destination and purpose for the

trip, and “undertake similar questioning of the vehicle's

occupants to verify the information provided by the

driver.”

Gregory

, 302 F.3d at 809 (quoting United States v. Linkous

, 285

F.3d 716, 719 (8th Cir. 2002)). Thus, Trooper Conklin’s

questioning was fully within the boundaries of the Fourth Amendment

based upon his having probable cause to believe that a traffic

violation occurred. But even if one does not accept this basis for

the questioning, there exists an alternative basis supporting the

questioni ng. The majority concedes that, in light of D ortch

,

Trooper Conklin had a reasonable suspicion that the car was stolen

prior to his questioning of Brigham and his passengers. Majority

Opinion at 19. This court has previously found questioning almost

identical to Trooper Conklin’s to be permissible where the officer

had a reasonable suspicion that the car was stolen. S ee Roberson

,

6 F.3d at 1092-93 (finding questioning identical to questioning in38

this case permissible based on a reasonable suspicion that the car

was stolen).

Third, even if drug interdiction was Troo per Conklin’s

motivation for asking the questions, his motivation is wholly

irrelevant for Fourth Amendment purposes. The majority’s reasoning

flies in the face of Whren v. United States

, which held that Fourth

Amendment activities must be judged in light of the objective facts

rather than law enforcement officers’ subjective motives. 517 U.S.

806, 812-13 (1996).

Fourth, the majority equates the failure of Trooper

Conklin to employ the “least intrusive means” of investigation with

unreasonableness for purposes of the Fourth Amendment. There is no

doubt that law enforcement officers may both question the occupants

of a vehicle which is stopped for reasonable suspicion as well as

for engaging in traffic violations, and may perform computer

records checks of the vehicle and its occupants. S habazz

, 993 F.2d

at 437. The majority holds, as a constitutional matter, that these

activities must be done simultaneously, not seriatim

, in order for

an investigation to be performed via the least intrusive means.

But it does not follow that failing to use the “least

intru sive means” of investigation is per se constitutionally

unreasonable. In fact, so to hold conflicts with the precedent of

this Circuit. This Court has stated that:

The fact that the protection of the public might, in the

abstract, have been accomplished by ‘less intrusive’39

means does not, by itself render the search unreasonable.

The question is not simply whether some other alternative

was available, but whether the police acted unreasonably

in failing to recognize it or to pursue it.

United States v. Sanders

, 994 F.2d 200, 204 (5th Cir. 1993)(Wiener,

J., joined by Barksdale and DeMoss, JJ.) (quoting United States v.

Sharpe

, 470 U.S. 675, 687 (1985)). Thus, the question before this

court, properly framed, is whether it was unreasonable for Trooper

Conklin to engage in a line of questioning for eight minutes prior

to running a computer check rather than asking the very same

ques tions during the computer check (which the majority concedes

would be permissible). In my mind, the answer to this question is

unequivocally “no.”

Here the entire investigation was directed to the

concededly legitimate purpose of enforcing the traffic laws. See

Gregory

, 302 F.3d at 809 ; Shabazz , 993 F.2d at 437. In such a

case, vehicle occupants should not have the constitutional right to

object to the mode of procedure as long as there is no excessively

long detention. As the government points out, this detention was

prolonged at least as much by the fact that Franklin provided the

trooper with a bogus identification card, requiring a second

computer check to occur, as it was by Trooper Conklin’s decision to

ask questions first. Moreover, under the majority’s reasoning, it

would apparently be constitutionally permissible if Trooper Conklin

had gone to each vehicle occupant and run his or her identification

check separately while questioning only that individual during the40

process of the computer check. Such a procedure would, however, be

absurd.

Fifth, Brigham does not contest the district court’s

finding that he voluntarily consented to a search of the car.

Instead, the majority reverses under this court’s now-virtually per

se rule that if a traffic stop detention is “unduly prolonged,”

there can be no legal consent to search. Neither Brigham nor the

majority suggest that the detention was prolonged for the purpose

of obtaining consent to search

– consent was given six minutes

before Trooper Conklin received the transmission from his

dispatcher concerning Franklin’s real name. This case is

distinguishable from Dortch

, Jones

, and Santiago

, because in those

cases, consent was e xtracted after the traffic stops had been

completed and thus at a time when , without reasonable suspicion,

the defendant should have been allowed to depart.

The above error s infect the majority’s opinion even if

one assumes that Dortch

, Jones

, and Santiago properly reflect

Fourth Amendment jurisprudence. While those cases are binding law

in th is circuit, I believe they are too broadly written, and I

subscribe to the dissents of Judges Garwood and Emilio Garza in two

of those cases.9 277 F.3d 947 (7th Cir.) (en banc), cert. denied

, 123 S. Ct.

126 (2002).

41

I suggest that the reasoning of the Seventh C ircuit in

Childs

, 9 more correctly applies Fourth Amendment reasonableness

principles to individual traffic stops. As the court noted:

Questions that hold potential for detec ting crime, yet

create little or no inconvenience, do not turn reasonable

detention into unreasonable detention. They do not

signal or facilitate oppressive police tactics that may

burden the public-- for all suspects (even the guilty

ones) may protect them selves fully by declining to

answer. Nor do the questions forcibly invade any privacy

interest or extract information without the suspects'

consent.

Childs

, 277 F.3d at 954. In short, I believe this case is wrongly

decided under Dortch

, Jones

, and Santiago

. Alternately, that line

of cases is incorrect and should be reconsidered by our court en

banc.