An Illinois State Trooper pulled over Oscar Bueno for driving his van 69 MPH in a 65-MPH zone. Trooper Owen decided to give Bueno a written warning for speeding, but various aspects of the situation aroused his suspicions that Bueno might be transporting contraband. After conducting further investigation, Owen determined that Bueno’s van carried drug money bound for Mexico. Thirty-nine minutes into the stop, Bueno was handcuffed and taken into custody.
After his conviction on drug trafficking charges, Bueno argued on appeal that evidence from the stop should be suppressed since the stop had been unreasonably prolonged in violation of the Fourth Amendment. Earlier today, the Seventh Circuit affirmed in United States v. Bueno (No. 11-2532) (Bauer, J.).
There was no real question about the constitutionality of the stop itself — the issue was simply its duration. And the Seventh Circuit did recognize that duration might create a Fourth Amendment problem:
Even a “seizure that is lawful at its inception,” however, can “violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.” Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (citation omitted). In the context of a traffic stop, this means that “[a] seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Id. Thus, while officers need not have reasonable suspicion to ask questions unrelated to the purpose of the traffic stop, “questions that prolong custody may affect the reasonableness of the detention.” United States v. Muriel, 418 F.3d 720, 725 (7th Cir. 2005). (12)
As the Seventh Circuit saw things, Bueno’s stop had three distinct phases:
The first phase began with Trooper Owen’s initiation of the stop and lasted through the issuance of the written warning. This phase lasted approximately eleven minutes, and as mentioned above, was reasonable based on Trooper Owen’s observation of the van exceeding the speed limit. In the next phase of the stop, which lasted about eight to nine minutes, Trooper Owen left Bueno in the squad car, questioned [Bueno’s passenger] Flores about the packages [in the van], requested the shipping papers, and received Flores’ consent to search the van, resulting in the positive dog alert. In the final phase of the stop, Trooper Owen and other law enforcement agents searched the van, recovered brick-shaped objects wrapped in plastic, to which the dog again alerted for the presence of narcotics, and handcuffed Bueno. This phase lasted approximately twenty minutes. (13)
The closest question was presented by the second phase, that is, the eight or nine minutes between the issuance of the written warning and the dog alert. This phase, the court indicated, did indeed extend beyond the time reasonably required to issue a warning for speeding. However, the court held, the Fourth Amendment is not necessarily violated when a stop is prolonged beyond what is necessary to effectuate its original purpose.
Rather, we and other courts have recognized several permissible grounds for prolonging a traffic stop after the original mission of the stop has been completed. First, continuation of the stop beyond its otherwise lawful limits is justified where the encounter has become consensual, thus terminating the seizure. . . .
We have also recognized that the prolongation of a traffic stop based on probable cause due to further questioning by a police officer is reasonable so long as the officer asks “[q]uestions that hold potential for detecting crime, yet create little or no inconvenience.” United States v. Childs, 277 F.3d 947, 954 (7th Cir. 2002) (en banc). In reaching this conclusion, we distinguished stops based on probable cause from those based on reasonable suspicion, and reasoned that because a stop based on probable cause will also justify a custodial arrest, traffic stops based on probable cause are not subject to the time limitations of Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Id. at 952-53; but see United States v. Guijon-Ortiz, 660 F.3d 757, 768 n.9 (4th Cir. 2011) (rejecting the Childs court’s discussion about “whether a stop supported by probable cause gives officers freer rein to ask unrelated questions than do stops supported only by reasonable suspicion” and affirming that the Terry two-step framework applies to traffic stops based on probable cause). Thus, as we explained in Childs, the Fourth Amendment “does not require the release of a person arrested on probable cause at the earliest moment that can be accomplished. What the Constitution requires is that the entire process remain reasonable.” . . . Based on this reasoning, we have permitted additional questioning by officers during a traffic stop that did not increase the length of detention, or that extended it by only a reasonable period of time. . . . (14-15)
The court thus highlighted an interesting difference in its approach and that adopted by the Fourth Circuit, which might be a good issue for the Supreme Court to take up at some point.
In applying this open-ended reasonableness test, the Seventh Circuit was appropriately critical of some of the Government’s arguments:
The Government argues that the additional investigatory actions undertaken by Trooper Owen after he completed the written warning—phase two of the stop—fell within the permissible grace period we recognized in Childs because the conduct “[held] the potential for detecting crime, yet create[ed] little or no inconvenience.” While we agree that Trooper Owen’s actions clearly had the potential to uncover criminal activity, we are less convinced that the duration and manner of Bueno’s detention that resulted caused him little or no inconvenience. This a fact-bound, context-specific inquiry, but we note that the defendants in Childs, McBride, and several of our unpublished decisions allowing the “reasonable” prolongation of a traffic stop were detained for, at most, a few minutes and not inconvenienced in any appreciable way. See Childs, 277 F.3d at 953 (“By asking one question about marijuana, officer Chiola did not make the custody of Childs an ‘unreasonable’ seizure.”); McBride, 635 F.3d at 883 (noting that “the additional questions extended the stop by ‘roughly two minutes’ at most”); United States v. Dixie, 382 Fed. Appx. 517, 519 (7th Cir. 2010) (unpublished) (concluding that the stop was not unreasonably prolonged where the district court noted that it took “only seconds longer” for the officer to ask the defendant about any weapons on his person and then to recover the defendant’s knife and unlicensed gun when he answered in the affirmative); United States v. Brown, 355 Fed. Appx. 36, 38-39 (7th Cir. 2009) (unpublished) (concluding that the defendant’s detention was reasonable because the trooper’s additional questioning “transpired in less than one minute after he issued the warning”) . . . . Here, however, almost nine minutes passed—nearly doubling the length of the stop—between the issuance of the written warning and the dog alert that gave Trooper Owen reason to detain Bueno further. Additionally, although Trooper Owen had already issued Bueno the written warning, he advised Bueno to wait in the police squad car—with the police dog pacing at his back—while he questioned Flores.
Even if this amounted to an impermissible inconvenience, however, we conclude that the continuation of Bueno’s detention beyond its otherwise lawful limits was justified in light of the circumstances that developed during the stop. We have recognized on numerous occasions that information lawfully obtained during a traffic stop may “provide the officer with reasonable suspicion of criminal conduct that will justify prolonging the stop to permit a reasonable investigation.” United States v. Martin, 422 F.3d 597, 602 (7th Cir. 2005) . . . .
Here, the Government points to several facts and circumstances observed by Trooper Owen during the first phase of the stop that justified his decision to investigate further. First, Trooper Owen noted that the van took “an abnormally long amount of time” to pull to the side of the road and that his experience taught him that this could be indicative of two people forming a plan or coordinating a story prior to police contact. The van was traveling at a high speed, however, and the squad car’s video recording shows the van slowing at a reasonable rate, so we give this observation little weight. Trooper Owen also observed that both Bueno and Flores appeared “excessively” nervous during the stop: according to Trooper Owen, Bueno’s hand trembled when he handed Trooper Owen his license; Flores’ search for the van’s registration was “hurried and exaggerated”; Flores’ hand shook when he gave Trooper Owen the registration card; and Bueno’s voice was shaky and weak at times and his leg was shaking when he was questioned in the squad car. Some nervousness around law enforcement officials is to be expected, however, and we have expressed skepticism regarding the value of such observations. See United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005). Nevertheless, while “the appearance of anxiety may not by itself form an objective basis for suspecting criminal activity,” McBride, 635 F.3d at 882 (citation omitted), we consider such behavior as a factor in the totality of circumstances, United States v. Brown, 188 F.3d 860, 865 (7th Cir. 1999) (citation omitted).
Other observations and information obtained by Trooper Owen before he finished giving Bueno the written warning provide a stronger basis for suspecting that he and Flores were engaged in illegal activity. Almost immediately after Trooper Owen initiated the stop, he saw that the van was “loaded down” with boxes. Flores informed him that the boxes originated in Chicago and were bound for Mexico, which Trooper Owen knew from his experience was a common route for drug-trafficking and other contraband. . . . Although Flores said that they were transporting the packages under the auspices of a transportation company, the van was registered to Flores, not the company, and bore no company markings as would be typical of a transportation company. Flores also admitted that he did not have any motor carrier authority to operate the business and transport the packages across state lines (he said he did not believe he needed any). Additionally, even though Flores said he was the owner of the transportation company and that both he and Bueno lived in Dallas, the business card he provided Trooper Owens listed a Chicago address. These circumstances obviously raised red flags regarding the legitimacy of Flores’ transportation company, and when Trooper Owens questioned Bueno about the business while issuing him the written warning, he was unable to get specific answers regarding the origins and contents of the packages. Instead, Bueno told him only what the boxes typically contain and that “different people” dropped them off. He said that he was only the driver, and that Flores maintained the shipping papers for the packages. We find that these developments, taken in combination, gave rise to a reasonable suspicion of criminal activity, and that Trooper Owen was justified in prolonging the stop for a few minutes to ask Flores about his business and the packages he was transporting in order to confirm or dispel his suspicions. (16-21)
What emerges, then, is highly fact-driven, case-specific holding. Although a 39-minute stop based initially on a minor traffic infraction was permissible in Bueno, such a lengthy stop may not pass constitutional muster on somewhat different facts.