PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 21-3316

____________

UNITED STATES OF AMERICA,

Appellant

v.

JAMAR HUNTER

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2-19-cr-00635-001)

District Judge: Honorable Juan R. Sánchez 

__________

Argued December 13, 2022

__________

Before: RESTREPO, McKEE and SMITH, Circuit Judges

(Filed: December 5, 2023)
2

Meaghan Flannery

Matthew T. Newcomer [Argued]

Jennifer A. Williams

OFFICE OF UNITED STATES ATTORNEY

Eastern District of Pennsylvania

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellant

Salvatore C. Adamo, Esq. [Argued]

1866 Leithsville Road

#306

Hellertown, PA 18055

Counsel for Appellee

__________

OPINION

_________

RESTREPO, Circuit Judge

Law enforcement officers conduct traffic stops every 

day. No matter how minor the apparent infraction, every traffic 

stop must comply with the Fourth Amendment. It wraps every 

person, and every traffic stop, with a cloak of constitutional 

protection. The Fourth Amendment also permits the 

consideration of officer safety when confronting a potentially 

dangerous situation. Weighing those concerns, we must decide 

whether the use of a criminal record check, lasting 

approximately two minutes, can be an objectively reasonable 
3

safety precaution related to the mission of the traffic stop under 

Rodriguez v. United States, 575 U.S. 348 (2015) and the Fourth 

Amendment. 

It can. We therefore will reverse the District Court’s 

grant of the suppression motion and remand for further 

consideration. 

I.

A.

This traffic stop, which lasted less than eight minutes in 

its entirety, began like many others—with a police officer 

spotting minor traffic violations.1 On December 12, 2018, 

Pennsylvania State Trooper Galen Clemons stopped a rented 

Chrysler 300 in Ridley Township, Pennsylvania. Neither the 

reason for the stop nor the legality of the stop at its outset is 

disputed. Clemons traveled alone—without a partner or backup—and approached the car to discover two occupants: the 

driver, Jamar Hunter, and a front seat passenger, Deshaun 

Davis.2 After Hunter and Davis provided identification, 

1 The traffic violations included the following: (1) speeding 

(traveling at fifty-eight miles per hour in a thirty-five miles per 

hour zone); (2) changing lanes without signaling; and (3) 

crossing over a solid line while changing lanes. 

2 The District Court discredited Clemons’ testimony regarding 

Hunter’s nervousness and Davis’ evasiveness, noting that “the 

dashcam video fail[ed] to support his description.” J.A. 7 nn.3–

4. The District Court also found much of Clemons’ testimony 

to be “generalized” and “exaggerated.” Id. Although we 

exercise plenary review on questions of law, the District 

Court’s credibility findings merit deference. See Anderson v. 

City of Bessemer City, N.C., 470 U.S. 564, 575 (1985) 
4

Clemons returned to his patrol car to perform a routine license 

and warrant check, also known as a “CLEAN N.C.I.C.” check.3 

This check revealed that both men had valid driver’s licenses 

and no outstanding arrest warrants. It is at this point that 

Hunter alleges the mission of the traffic stop ended and 

Clemons no longer had constitutional authority to prolong the 

stop. 

Immediately after the routine check, Clemons 

performed an additional check that extended the traffic stop: a 

computerized criminal history check, also known as a “Triple 

I” check.4 He spent around five minutes conducting both 

checks in his patrol car, with the Triple I check taking 

approximately “a minute or two.” J.A. 254. This computerized 

criminal history check revealed that both Hunter and the 

passenger had significant criminal histories, including firearm 

and drug trafficking convictions.

Armed with this information, Clemons returned to 

Hunter’s car. The officer ordered Hunter out of the car so that 

he could perform a Terry frisk, during which he discovered a 

loaded Glock-45 semi-automatic handgun in Hunter’s

waistband. He immediately arrested Hunter. The entire traffic 

stop lasted less than eight minutes.

(concluding that credibility determinations made by the trial 

judge demand great deference). 

3

“CLEAN N.C.I.C.” refers to Commonwealth Law 

Enforcement Assistant Network National Crime Information 

Center.

4

 The Triple I check retrieves criminal records from the same 

network as CLEAN N.C.I.C.
5

B.

Following his arrest, a federal grand jury indicted 

Hunter for possession of a firearm as a convicted felon, in 

violation of 18 U.S.C. § 922(g)(1). Hunter moved to suppress 

the gun seized from him during the traffic stop on the basis that 

Clemons’ use of the Triple I check impermissibly exceeded the 

traffic stop’s mission, and thus any evidence recovered after 

Clemons conducted the Triple I check should be suppressed 

under the Fourth Amendment. The District Court granted the 

suppression motion based on the following determinations: (1) 

Clemons lacked sufficient reasonable suspicion before

conducting the criminal history check; (2) the criminal history 

check was unrelated to the traffic stop’s mission; (3) the 

criminal history check prolonged the traffic stop; and (4) the 

criminal history check therefore impermissibly exceeded the 

stop’s mission and violated Rodriguez and the Fourth 

Amendment. The Government timely appealed on two 

grounds: (1) the District Court erred when it applied a 

subjective standard of review; and (2) therefore erred as a 

matter of law in concluding that this criminal record check was 

an off-mission detour pursuant to Rodriguez and the Fourth 

Amendment. 

We address both arguments in turn.
6

II.5

A.

The Fourth Amendment protects individuals against 

unreasonable searches and seizures. U.S. CONST. amend. IV. 

A traffic stop, however brief, constitutes a seizure under the 

Fourth Amendment and is subject to review for 

reasonableness. See Whren v. United States, 517 U.S. 806, 

809–10 (1996); see also United States v. Clark, 902 F.3d 404, 

409 (3d Cir. 2018). Courts must review reasonableness 

through an objective lens, Ohio v. Robinette, 519 U.S. 33, 39 

(1996), and should not consider the actual or subjective 

intentions of the officer involved, Whren, 517 U.S. at 813.

In granting the suppression motion, the District Court 

erroneously applied a subjective standard rather than the 

constitutionally required objective standard. Specifically, the 

District Court considered Clemons’ subjective testimony that 

he routinely, but not always, performs the criminal history 

check during traffic stops. The District Court credited 

Clemons’ testimony that he would sometimes employ this 

check “to bolster [his] reasonable suspicion.” J.A. 25, 255. 

Grounding its reasoning in this subjective testimony, the 

District Court concluded that “[t]he criminal background check 

was thus not tied to the traffic stop’s mission.” J.A. 13.

5 The District Court had subject matter jurisdiction under 18 

U.S.C. § 3231 and this Court has appellate jurisdiction 

pursuant to 18 U.S.C. § 3731. We review a district court’s 

decision to grant a motion to suppress under a “mixed standard 

of review.” United States v. Tracey, 597 F.3d 140, 146 (3d Cir. 

2010). We review findings of fact for clear error but exercise 

plenary review over legal determinations. Id.
7

Clemons’ subjective intent is immaterial and should not 

be considered when evaluating whether the use of the criminal 

history check, when viewed objectively, was justified under 

the circumstances. Scott v. United States, 436 U.S. 128, 138 

(1978) (“[T]he fact that the officer does not have the state of 

mind which is hypothecated by the reasons which provide the 

legal justification for the officer’s action does not invalidate 

the action taken as long as the circumstances, viewed 

objectively, justify that action.”). The District Court therefore 

erred as a matter of law, and we will reverse. 

B.

We review de novo the question of whether the use of 

the criminal history check in this case was objectively 

reasonable and proper under Rodriguez. To be reasonable, a

traffic stop must be justified at its inception and the officer’s 

actions during the stop must be reasonably related to “the 

mission of the stop itself.” Rodriguez, 575 U.S. at 356. 

Rodriguez defines a traffic stop’s mission to include 

completing “tasks tied to the traffic infraction,” such as issuing 

a traffic ticket, checking the driver’s license and any 

outstanding warrants, and inspecting registration and 

insurance. Id. at 354–55. Rodriguez also permits the use of 

“certain negligibly burdensome precautions” when done to 

complete the mission safely. Id. at 356. Off-mission detours 

that do not address the basis for the stop or legitimate safety 

concerns, such as a dog-sniff6 or extensive criminal history 

6 See Rodriguez, 575 U.S. at 355 (“A dog sniff . . . is a measure 

aimed at ‘detect[ing] evidence of ordinary criminal 

wrongdoing.’”) (quoting Indianapolis v. Edmond, 531 U.S. 32, 

40–41 (2000)). 
8

questioning,7 violate the Fourth Amendment when performed 

without reasonable suspicion. 

In this case, the parties agree that the criminal history 

check does not qualify as a routine task tied to the traffic 

infraction, and the Government concedes that Clemons “had 

completed the tasks specifically tied to the traffic stop when he 

finished the computerized N.C.I.C. driver’s license and 

warrant checks.” Gov’t Br. at 24. The Government therefore 

argues that the check was objectively reasonable under 

Rodriguez because it was part of the stop’s mission due to 

officer safety. 

Officer safety during a traffic stop has been a 

longstanding and recognized concern. See, e.g., Arizona v. 

Johnson, 555 U.S. 323, 330 (2009) (recognizing “that traffic 

stops are especially fraught with danger to police officers.”) 

(internal citation omitted). Rodriguez recognized this concern 

and went one step further by concluding that the “officer safety 

interest stems from the mission of the stop itself.” 575 U.S. at 

356. Our Court has adopted this rationale. See Clark, 902 F.3d 

at 410 (“Tasks tied to officer safety are also part of the stop’s 

mission when done out of an interest to protect officers.”).

Rodriguez explained that “an officer may need to take 

certain negligibly burdensome precautions in order to complete 

his mission safely” and implied that conducting criminal 

record checks could be done in furtherance of officer safety. 

575 U.S. at 356 (citing United States v. Holt, 264 F.3d 1215, 

1221–22 (10th Cir. 2001) (en banc), overruled on other 

grounds by Muehler v. Mena, 544 U.S. 93 (2005)). The fact 

that Hunter and Davis outnumbered Clemons enhances the 

7 See, e.g., Clark, 902 F.3d at 410–11 (concluding that criminal 

history questioning, performed after criminal history query, 

violates the Fourth Amendment).
9

safety concerns we must consider. See Maryland v. Wilson, 

519 U.S. 408, 413 (1997) (“[T]he fact that there is more than 

one occupant of the vehicle increases the possible sources of 

harm to the officer.”). Viewing the circumstances as they 

existed at the scene of the stop, we conclude that it was 

reasonable for an officer to conduct this check pursuant to 

safety concerns. 

Post-Rodriguez, the First, Fourth, Seventh, Eighth, 

Ninth, and Tenth Circuits have all concluded that a routine 

criminal record check during a traffic stop is lawful under the 

Fourth Amendment.8 We agree that when “necessary in order 

8 See, e.g., United States v. Hylton, 30 F.4th 842, 847 (9th Cir. 

2022) (finding that while a felon registration check is a 

“measure aimed at detecting evidence of ordinary 

wrongdoing,” a criminal history check, which only looks to 

whether “someone is a felon at all” is “supported by an ‘officer 

safety justification’”) (citation omitted); United States v. Salkil, 

10 F.4th 897, 898 (8th Cir. 2021) (recognizing that “officers 

may complete ‘routine tasks,’ such as ‘computerized checks of 

. . . the driver’s license and criminal history’”) (citation 

omitted); United States v. Mayville, 955 F.3d 825, 830 (10th 

Cir. 2020) (finding that “an officer’s decision to run a criminalhistory check on an occupant of a vehicle after initiating a 

traffic stop is justifiable as a ‘negligibly burdensome 

precaution’ consistent with the important governmental 

interest in officer safety”) (citation omitted); United States v. 

Dion, 859 F.3d 114, 127 n.11 (1st Cir. 2017) (recognizing that 

“the Supreme Court has characterized a criminal-record check 

as a ‘negligibly burdensome precaution’ that may be necessary 

in order to complete the mission of the traffic stop safely”) 

(citation omitted); United States v. Palmer, 820 F.3d 640, 650 

(4th Cir. 2016) (recognizing “‘certain negligibly burdensome 
10

to complete the mission of the traffic stop safely,” a criminal 

history check is permissible and within the bounds of the 

Fourth Amendment. United States v. Dion, 859 F.3d 114, 127 

n.11 (1st Cir. 2017). 

We therefore hold that this criminal record check—

which lasted approximately two minutes and was supported by 

objectively reasonable safety concerns—was a negligibly 

burdensome officer safety precaution that falls squarely within 

the confines of the stop’s mission according to Rodriguez. 

However, we acknowledge that under other circumstances, a 

criminal record check may be unreasonable if it is more than 

negligibly burdensome and thus exceeds the stop’s mission. 

See Rodriguez, 575 U.S. at 354 (“Authority for the seizure . . . 

ends when tasks tied to the traffic infraction are—or reasonably 

should have been—completed.”). 

As Judge McKee emphasizes in his concurring opinion, 

the U.S. Supreme Court has afforded “police officers unbridled 

discretion to order drivers out of their cars during traffic stops 

in the name of officer safety.” See McKee concurring opinion 

§ I.A & n.23 (citing Pennsylvania v. Mimms, 434 U.S. 106, 111 

(1977)). Such a concern is understandable and is rightly 

accorded consideration as judges weigh whether a traffic stop 

comports with the strictures of the Fourth Amendment.

Unbridled discretion exercised by any officer of 

government will always be subject to mischief – or worse. It 

precautions’ that may not relate directly to the reason for the 

traffic stop, such as checking whether the driver has a criminal 

record or outstanding warrants”) (citations omitted); United 

States v. Sanford, 806 F.3d 954, 956 (7th Cir. 2015) (holding 

that a criminal history check is a permissible procedure “even 

without reasonable suspicion”).
11

is incumbent upon us as judges to recognize that reality and to 

therefore be painstaking in our attention to all the evidence 

presented in traffic stop cases and the circumstances out of 

which they arise.

III.

The District Court erred as a matter of law by applying a 

subjective reasonableness standard when evaluating whether 

the criminal record check in this case was part of the stop’s 

mission. We will therefore reverse the District Court’s order 

granting the motion to suppress and remand for further 

proceedings consistent with this opinion. 
1

McKEE, Circuit Judge, concurring.

I join my colleagues’ opinion in its entirety. I write 

separately, however, to emphasize the narrowness of our 

holding, to express concern about the likely consequences of 

our decision, and to examine aspects of our traffic stop 

jurisprudence, and Rodriguez v. United States,

1

that warrant 

further discussion.

After hearing the testimony of the arresting officer, the 

District Court held that the officer lacked reasonable suspicion 

to perform a criminal record check of Hunter and Hunter’s 

passenger. We reverse because Supreme Court precedent 

indicates that the criminal record check was part of the mission 

of the original traffic stop. Therefore, the officer did not need 

reasonable suspicion to perform the criminal record check.

I nevertheless agree with the District Court that the 

officer lacked reasonable suspicion to further detain Hunter to 

conduct that inquiry. Dashcam footage of the stop and the 

District Court’s opinion indicate that Hunter is Black. If Hunter 

had been White, I am not at all convinced that the officer would 

have checked Hunter’s criminal history after confirming 

Hunter had a valid driver’s license, registration, and insurance. 

As I shall explain, numerous studies support my suspicion. 

Although there is no way to address the disparate treatment 

Hunter may have been subjected to under our current Fourth 

Amendment jurisprudence, it still merits discussion.

I.

Our holding recognizes that police have limited 

discretion to extend a traffic stop for “a minute or two”2to 

conduct a criminal record check in the interest of officer safety. 

1 575 U.S. 348 (2015).

2 Majority Op. at 4; see also id. at 9. 
2

As my colleagues and I stress, this record check lasted no more 

than two minutes. Extending this traffic stop for that length of 

time is consistent with the Supreme Court’s opinion in 

Rodriguez. There, the Supreme Court explained that an officer 

may take “negligibly burdensome precautions” to complete a 

traffic stop safely3 but did not specify when such precautions

become more than negligibly burdensome and thus 

inconsistent with the limitations imposed by the Fourth 

Amendment. 

It is important to note that studies have shown that 

police tend to subject motorists of color to more burdensome 

procedures than their White counterparts. Our jurisprudence 

has rarely recognized or addressed this unfortunate reality.

A.

Traffic stops are the most common form of involuntary 

contact civilians have with police. Indeed, in any given year, 

“between 7% and 10% of adults” in the United States “are 

3 Rodriguez, 575 U.S. at 356. Prior to Rodriguez, the Supreme 

Court described negligibly burdensome precautions as “de 

minimis” or “minimal” intrusions. See Pennsylvania v.

Mimms, 434 U.S. 106, 111 (1977); Maryland v. Wilson, 519 

U.S. 408, 414–15 (1997). The Supreme Court has explicitly 

recognized only two de minimis intrusions: ordering a 

vehicle’s driver, see Mimms, 434 U.S. at 111, and a vehicle’s 

passengers, see Wilson, 519 U.S. at 415, to get out of the 

vehicle during the stop. And, before today, we had recognized 

only one additional de minimis intrusion: ordering a vehicle’s 

occupants to remain inside the vehicle and to keep their hands 

raised throughout the stop. See United States v. Moorefield, 

111 F.3d 10, 13 (3d Cir. 1997). 
3

stopped by the police [while driving] at least once.”4 Moreover, 

police have nearly unlimited discretion to initiate traffic stops.5

One researcher has concluded, “[i]f an officer follows any 

motorist long enough, the motorist will eventually violate some 

traffic law” and could, therefore, be subjected to a stop “almost 

anytime, anywhere, virtually at the whim of police.”

6

The burden of these stops falls disproportionately on 

drivers of color. Indeed, a significant volume of recent research 

shows that “police treat drivers of color differently than white 

drivers.”7 Whether intentionally or not, “police are more likely 

to subject drivers of color to stops, searches, and other coercive 

actions compared to white drivers,” and this disparate 

treatment is not explained by differences in behavior or 

circumstances.

8 Of course, each police department is different, 

and I caution against painting with too wide a brush.

Nevertheless, studies have consistently shown that racial 

profiling by police is “relatively common.”

9

4 Kelsey Shoub, Comparing Systemic and Individual Sources 

of Racially Disparate Traffic Stop Outcomes, 32 J. PUB.

ADMIN. RES. & THEORY 236, 241 (2021).

5 See Whren v. United States, 517 U.S. 806, 813, 819 (1996) 

(permitting stops based on probable cause of a traffic code 

violation, even when the traffic code violation is a pretext for 

the stop). 

6 Stephen Rushin & Griffin Edwards, An Empirical Assessment 

of Pretextual Stops and Racial Profiling, 73 STAN. L. REV.

637, 641 (2021) (internal quotation marks and brackets 

omitted).

7

Id. at 657.

8

Id.

9

Id. at 663.
4

For example, one recent study analyzed traffic stop data 

from jurisdictions across the country and concluded that a 

driver’s race influences police to initiate traffic stops.

10 The 

study reached this conclusion by comparing stops made before 

dusk, when a driver’s race is readily apparent, to stops made 

after dusk, when a driver’s race is more difficult to observe.11

Even after controlling for location and for differences in traffic 

patterns and police deployment at different times of day, the 

study found that drivers of color were more likely to be stopped 

before dusk than they were after dusk—that is, drivers of color 

were more likely to be stopped when their race was apparent.12

Another study has found that drivers of color are more 

likely to be subjected to pretextual stops than White drivers.13

That study relied on data from the State of Washington, which, 

for just over a decade, outlawed pretextual traffic stops.

14

Researchers compared the racial distribution of traffic stops 

when pretextual stops were illegal to the distribution after 

pretextual stops were legalized.

15 The researchers found that 

10 Emma Pierson et al., A large-scale analysis of racial 

disparities in police stops across the United States, 4 Nature 

Hum. Behav. 736, 737 (July 2020). The study analyzed data 

from nearly 100 million traffic stops conducted by 21 state 

patrol agencies and 35 municipal police departments. Id.

11 Id.

12 Id. at 737–38.

13 Rushin & Edwards, supra, at 637–38.

14 Compare State v. Ladson, 979 P.2d 833, 839 (Wash. 1999) 

(en banc) (concluding that Washington’s constitution “forbids 

use of pretext as a justification for a warrantless search or 

seizure”) with State v. Arreola, 290 P.3d 983, 991 (Wash. 

2012) (en banc) (permitting “mixed-motive traffic stop[s]”).

15 Rushin & Edwards, supra, at 683–85.
5

drivers of color were stopped more frequently after pretextual 

stops were legalized, even when controlling for other factors 

such as driver age, officer race, officer gender, and locationspecific characteristics.

16 That study also found that stops of 

drivers of color increased most during daylight hours—again, 

when a driver’s race can be readily perceived.17

Another study found that police require less suspicion 

to search drivers of color than they require to search White 

drivers.18 The study analyzed how frequently searches of 

drivers of color versus White drivers yielded contraband and 

used statistical modeling to determine the probability of 

success an officer would need to perceive before deciding to 

initiate a search of either type of driver.

19 The study found that 

police typically searched drivers of color with less suspicion 

than they relied upon to justify searching White drivers.20 For 

example, municipal police officers in the study were typically 

willing to search Black and Hispanic drivers when they 

expected only a 5% or 4.6% likelihood of success, 

respectively. By contrast, police in the study typically refrained 

from searching White drivers unless there was a 10% 

likelihood of success.

21

I am not the first to raise concerns about the ways in 

which police discretion during traffic stops disparately impacts

racial and ethnic minorities. Justice Stevens raised the same 

concern nearly half a century ago in his dissent to the Supreme 

Court’s decision in Pennsylvania v. Mimms—the first case to 

16 Id. at 686–87.

17 Id. at 692–93.

18 Pierson et al., supra, at 737.

19 Id. at 736.

20 Id.

21 Id.
6

permit police to burden drivers’ Fourth Amendment rights 

absent reasonable suspicion.22 There, the Supreme Court 

granted police officers unbridled discretion to order drivers out 

of their cars during traffic stops in the name of officer safety.

23

In his dissent, Justice Stevens forecasted that “[s]ome 

citizens [would] be subjected to this minor indignity while 

others—perhaps those with more expensive cars, or different 

bumper stickers, or different-colored skin—may escape it 

entirely.”24 Time and subsequent research have proven Justice 

Stevens correct.

B.

Since our traffic stop jurisprudence produces racially 

disparate impacts, two aspects of it particularly warrant further 

refinement in an appropriate case.

First, in discussing the dangers of traffic stops, our 

precedents have not differentiated the risks associated with 

different types of stops.

25 Instead, we have treated stops as 

though they are homogenous. We have relied on data that 

group together stops following hot pursuits of suspects who are 

known to be dangerous with stops following innocuous, 

technical traffic code violations.26 By failing to differentiate 

the risks associated with different types of traffic stops, our 

jurisprudence often overstates the risks involved in routine

traffic stops in which there is no reasonable suspicion of 

22 434 U.S. at 113–14 (Marshall, J., dissenting); id. at 115–16 

(Stevens, J., dissenting).

23 Id. at 111 (per curiam).

24 Id. at 122 (Stevens, J., dissenting).

25 Mimms, 434 U.S. at 110; Wilson, 519 U.S. at 413.

26 Jordan B. Woods, Policing, Danger Narratives, and Routine 

Traffic Stops, 177 MICH. L. REV. 635, 648–49 (2019) 

(discussing the data source relied upon in Mimms and Wilson).
7

danger. We have then relied on this overstated risk to justify 

giving police unbridled discretion to pursue practices that 

would typically require reasonable suspicion outside the traffic 

stop context.

One recent study illustrates the problem. That study 

concluded that the risk to officer safety associated with routine 

traffic stops is substantially smaller than the risk associated 

with other types of police activity.

27 And of the assaults on 

police that occur during traffic stops, the study found that fewer 

than 4% occur during traffic stops in which the officer had no

reason to suspect danger.

28 Overall, even under the most 

conservative assumptions, the study found that routine traffic 

stops result in serious injury to an officer in one in every 

325,000 encounters, and in death in one of every 5.42 million 

encounters.29 While officer safety is undoubtedly an important 

consideration in every encounter, these statistics put the risks 

officers face during routine traffic stops into perspective.

Second, the jurisprudence surrounding traffic stops has 

focused on the safety of the officer(s) involved. This is perhaps 

understandable given the nature of police work. However, 

traffic stops involve more than police; they involve ordinary 

members of the public as well. Yet, Fourth Amendment 

jurisprudence surrounding traffic stops has historically ignored 

the safety of a vehicle’s occupants.

It is an unfortunate but undeniable reality that traffic 

stops endanger the occupants of vehicles. An investigation 

27 Id. at 649–54. In this study, the researcher reviewed more 

than 4000 narratives of assaults experienced by police to 

determine the specific circumstances in which each assault 

occurred. Id. at 661–62, 669.

28 Id. at 689.

29 Id. at 682.
8

conducted by the New York Times found that between 2016 

and 2021 police killed “more than 400 drivers or passengers 

who were not wielding a gun or a knife, or under pursuit for a 

violent crime—a rate of more than one a week.”30 Indeed, even 

law enforcement professionals have recognized the danger 

civilians face in their interactions with police. As the District 

Attorney for Salt Lake County, Utah, put it, some incidents 

“get into what I would call anticipatory killings . . . . We can’t 

give carte blanche to that.”31

This danger is even more pronounced for racial and 

ethnic minorities, who are not only subjected to police 

interaction with greater frequency, as discussed above, but are 

also more likely to be perceived as dangerous and therefore 

more likely to be subjected to force.32 A national study of 

police-involved shootings between 2011 and 2014 found that 

unarmed Black people were 3.49 times more likely to be killed 

30 David D. Kirkpatrick et al., Why Many Police Traffic Stops 

Turn Deadly, N.Y. TIMES, (Oct. 31, 2021), 

https://www.nytimes.com/2021/10/31/us/police-traffic-stopskillings.html.

31 Id.

32 Justin D. Levinson et. al., Deadly “Toxins”: A National

Empirical Study of Racial Bias and Future Dangerousness

Determinations, 56 GA. L. REV. 225, 281 (2021) (conducting 

implicit association tests of jury-eligible participants and 

finding that participants strongly associated pictures of Black 

and Latino people with danger and pictures of White people 

with safety); see also Cynthia Lee, Race, Policing, and Lethal 

Force: Remedying Shooter Bias with Martial Arts Training, 79 

LAW & CONTEMP. PROBS. 145, 149–50 (2016).
9

by police than unarmed White people.33 Allowing police too 

much latitude during a routine traffic stop only increases the 

risk of the encounter morphing into a tragedy.34

33 Cody T. Ross, A Multi-Level Bayesian Analysis of Racial 

Bias in Police Shootings at the County-Level in the United 

States, 2011-2014, PLOS ONE, Nov. 5, 2015, at 6. This study 

analyzed the likelihood that an individual would be Black, 

unarmed and shot by police on a county-by-county basis. Id. 

Black people were 3.49 times more likely to be killed while 

unarmed in the median county. In some counties, however, the 

ratio was far worse. Id. In some counties, Black people were 

20 times more likely to be shot by police while unarmed. Id. at 

1. 

34 The New York Times’s report on police killings of unarmed 

drivers and passengers captures how traffic stops can 

needlessly escalate into tragedies:

“Open the door now, you are going to get shot!” an 

officer in Rock Falls, Ill., shouted at Nathaniel Edwards 

after a car chase. 

“Hands out the window now or you will be shot!” yelled 

a patrolman in Bakersfield, Calif., as Marvin Urbina 

wrestled with inflated airbags after a pursuit ended in a 

crash.

“I am going to shoot you—what part of that don’t you 

understand?” threatened an officer in Little Rock, Ark., 

adding a profanity, as she tried to pry James Hartsfield 

from his car.
10

II.

We are, of course, bound by Rodriguez. Rodriguez 

suggests that a criminal record check is a permissible safety 

precaution that comports with the mission of a traffic stop 

when conducted in a manner that is negligibly burdensome. I 

am therefore constrained to join my colleagues’ opinion.

However, in joining that decision, it is important to note that 

neither Rodriguez nor the court of appeals case it relies upon 

to sweep record checks into the mission of a traffic stop explain 

how a criminal record check improves officer safety, and there 

is reason to doubt that it does.

As my colleagues and I have explained, Rodriguez 

instructs that a traffic stop may not be extended beyond the 

time necessary to complete the stop’s mission.

35 A stop’s 

mission includes “address[ing] the traffic violation that 

warranted the stop” and “attend[ing] to related safety 

concerns.”36 These safety concerns include not only concern 

for the safety of the roadways but also concern for the safety 

of the officer(s) making the stop.37

In discussing how police officers may attend to the 

safety of the roadways, Rodriguez specifies that an officer may 

The police officers who issued those warnings had 

stopped the motorists for common offenses: swerving 

across double yellow lines, speeding recklessly, 

carrying an open beer bottle. None of the men were 

armed. Yet within moments of pulling them over, 

officers fatally shot all three.

Kirkpatrick et al., supra.

35 Rodriguez, 575 U.S. at 354.

36 Id.

37 Id. at 355–56.
11

pursue “ordinary inquiries incident to the traffic stop,” such as 

checking a driver’s license, insurance, and registration and 

checking whether there are outstanding warrants for the 

driver’s arrest.38 The Court considered these inquiries to be 

consistent with the mission of the traffic stop because “[t]hese 

checks serve the same objective as enforcement of the traffic 

code: ensuring that vehicles on the road are operated safely and 

responsibly.”39

It is clearly important to ensure that drivers can safely 

and competently operate their vehicles, and it is therefore 

obvious that the information officers may obtain through their 

routine traffic stop inquiries serves that objective. For example, 

a driver’s license proves a person is qualified to get behind the 

wheel. Vehicle registration, which typically requires an annual 

inspection, helps ensure that a vehicle is safe. Insurance 

documentation ensures that a driver can compensate others for 

personal injury or property damage in the event of an accident.

And an outstanding warrants check can help an officer 

determine whether a driver may be wanted for previous traffic 

offenses40 or may be tempted to use the roadways to flee in a 

dangerous manner. 

In discussing how police officers may attend to their 

own safety, however, Rodriguez provides little detail. As 

mentioned above, the Supreme Court stated only that an officer 

may pursue “certain negligibly burdensome precautions” and 

did so relying upon a Tenth Circuit decision, United States v. 

Holt,

41 which the Supreme Court parenthetically described as 

38 Id. at 355.

39 Id. at 354.

40 Id. at 355 (quoting W. LaFave, Search and Seizure § 9.3(c), 

516 (5th 3d. 2012)).

41 264 F.3d 1215 (10th Cir. 2001) (en banc).
12

“recognizing [an] officer safety justification for criminal 

record and outstanding warrant checks.”42 After making this 

statement, however, the Court went on to distinguish officer 

safety and the specific mission of a traffic stop from the general 

mission of investigating crimes without explaining the 

connection between criminal record checks and officer safety. 

It is not at all clear how a criminal record check 

advances officer safety. And Holt—the only case cited in 

Rodriguez for this point—does not explain the connection.

Rather, Holt simply assumes a connection, stating only, “[b]y 

determining whether a detained motorist has a criminal record 

or outstanding warrants, an officer will be better apprized of 

whether the detained motorist might engage in violent activity 

during the stop.”

43

But, the relationship between an individual’s criminal 

record and likelihood of assaulting a police officer is extremely 

tenuous. “Numerous . . . studies have shown that recidivism 

occurs relatively quickly,”44 and at least one study has shown 

that individuals with prior records are no more likely to 

reoffend than members of the general public after those 

42 Rodriguez, 575 U.S. at 356. Curiously, the Court cited to 

Holt with a “cf.” signal, which means “compare” and is used 

when the “[c]ited authority supports a proposition different 

from the main proposition but sufficiently analogous to lend 

support.” The Bluebook: A Uniform System of Citation, R.1, at 

59 (Columbia L. Rev. Ass’n et al. eds., 20th ed. 2015). The 

Court’s use of this signal further obfuscates the Court’s 

discussion of officer safety precautions.

43 264 F.3d at 1222–23.

44 Alfred Blumstein & Kiminori Nakamura, Redemption in the 

Presence of Widespread Criminal Background Checks, 47 

CRIMINOLOGY 327, 323, 331 (2009).
13

individuals have remained free from encounters with the 

criminal legal system for a period of time.45 Thus, the older the 

crime, the less likely it is to have any relevance to an 

individual’s propensity towards violence during the traffic 

stop. The predictive value of a criminal record also depends on 

the nature of the prior crime(s) as well as an individual’s 

current age and age when first arrested.

46 Thus, the academic 

literature on recidivism suggests only a limited subset of past 

crimes would have potential relevance to an officer’s safety, 

and then only for a limited subset of drivers.

Yet, I seriously doubt that officers have the kind of 

training that would allow them to meaningfully assess the 

significance of the information obtained through a “routine” 

criminal record check, even if the record check provided the 

kind of detail that would allow for such an assessment. And 

that kind of analysis would, of course, further delay the 

detained motorist and passengers.

Moreover, conducting criminal record checks during 

traffic stops could very well endanger officers as well as the 

occupants of the stopped vehicle rather than making officers 

safer. As I have just explained, prior encounters with the 

criminal justice system may have little or no bearing on a 

driver’s present dangerousness. But, after reviewing a driver’s 

criminal record, an officer might assume the driver is 

dangerous or otherwise engaged in criminal activity. The 

officer would therefore return to the stopped vehicle with 

heightened apprehension. That only multiplies the 

opportunities for misunderstanding, misinterpretation, and 

escalation, thus creating a situation where both the officer and 

the vehicle’s occupant(s) are at increased risk. It certainly 

45 Id. at 333.

46 Id. at 331, 333, 339.
14

increases the likelihood that the occupants would be ordered 

out of the vehicle, and this, in turn, may well increase the 

likelihood of confrontation.47

III.

Traffic stops are very fluid and dynamic encounters

between police and ordinary members of the public. They are, 

of course, necessary to ensure that vehicles are operated 

“safely and responsibly” as the Supreme Court has explained.

Fortunately, the vast majority of them are conducted without 

incident or confrontation.

47 Although there is not unanimity of opinion, some researchers

and law enforcement professionals argue that ordering the 

occupants out of a vehicle endangers officers rather than 

making them safer. See Cal. Comm’n on Peace Officer 

Standards and Training, Basic Course Workbook Series 

Student Materials Learning Domain 22 Vehicle Pullovers p. 2-

3 (v.3.2, 2018) (“It is generally desirable for patrol officers to 

have the driver and occupants of the target vehicle remain in 

the vehicle throughout the duration of the pullover.”); 

Metropolitan Police Academy, Traffic Stops § 12.3.4 (2023) 

(instructing officers in “high-risk” stops to “instruct all 

passengers to remain in the vehicle”); Woods, supra, at 708 

(discussing recent empirical evidence indicating that ordering 

drivers and passengers out of a car increases the officer’s risk 

of being assaulted); see also Mimms, 434 U.S. at 119 (Stevens, 

J., dissenting) (noting that experts on traffic stops “strongly 

recommend that the police officer ‘never allow the violator to 

get out of the car’” (citing Vern L. Folley, POLICE PATROL 

TECHNIQUES AND TACTICS 95 (1973); August M. Yount, 

VEHICLE STOPS MANUAL: MISDEMEANOR AND FELONY 2–3

(1976); George T. Payton, PATROL PROCEDURE 301 (4th ed. 

1971))).
15

But as I have explained, studies have shown that the 

discretion underlying an officer’s decision to stop a motorist is 

often influenced by factors that would raise constitutional 

concerns but for the Fourth Amendment latitude courts have 

historically allowed in the traffic stop context. As I have also 

explained, studies have now validated Justice Stevens’ concern 

that the decision to stop a motorist is sometimes influenced by 

the color of that motorist’s skin. Although there does not 

currently appear to be a remedy for such discrimination, I am 

hopeful that our Fourth Amendment jurisprudence will yet 

evolve to ensure that all motorists receive the same degree of 

protection from an officer’s conscious or unconscious bias.

My colleagues conclude that the District Court erred in 

granting Hunter’s suppression motion here. Because that result 

is consistent with, and required by, the Supreme Court’s 

analysis in Rodriguez, I join my colleagues’ opinion despite the 

concerns I have expressed.