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Date: 12-08-2017
Case Style:
Case Number: 16‐181‐cr
Judge: Christopher F. Droney
Court: United States Court of Appeals For the Second Circuit
Plaintiff's Attorney: GEOFFREY M. STONE, Marc H. Silverman, Assistant United States Attorneys
Defendant's Attorney: Matthew W. Brissenden
Description: This appeal arises out of a traffic stop of Defendant‐Appellant 2
Brayan Gomez. During surveillance in connection with a heroin‐3
trafficking investigation in Hartford, Connecticut, officers observed 4
Gomez commit several traffic violations and stopped his car. 5
During the five‐minute traffic stop, the officers prolonged the 6
seizure by asking Gomez narcotics‐related questions not pertinent to 7
the traffic violations. After the questioning, Gomez consented to the 8
search of a closed bag in the car’s trunk, which contained nearly a 9
half‐kilogram of heroin and drug‐packaging materials. 10
Gomez moved to suppress this evidence, arguing that, inter 11
alia, his seizure violated the Fourth Amendment because the officers 12
measurably extended the stop for investigatory reasons unrelated to 13
the traffic violations. Applying this Court’s holding in United States 14
v. Harrison, 606 F.3d 42, 45 (2d Cir. 2010) (per curiam)––that 15
questioning unrelated to traffic violations during a five‐to‐six 16
4
minute stop did not violate the Fourth Amendment––the United 1
States District Court for the District of Connecticut (Hall, C.J.) denied 2
Gomez’s suppression motion. Shortly before the district court’s 3
suppression ruling, however, the Supreme Court held that “a police 4
stop exceeding the time needed to handle the matter for which the 5
stop was made violates the Constitution’s shield against 6
unreasonable seizures,” indicating that the critical question is 7
whether the unrelated investigation “prolongs––i.e., adds time to––8
the stop.” Rodriguez v. United States, ––– U.S. –––, 135 S. Ct. 1609, 9
1612, 1616 (2015) (internal quotation marks omitted). 10
For the reasons that follow, we conclude that the Supreme 11
Court’s decision in Rodriguez abrogates our holding in Harrison.1 We 12
also conclude that Gomez’s seizure, albeit only five minutes in 13
length, contravenes Rodriguez’s holding and therefore violates the 14
Fourth Amendment. Nevertheless, we conclude that the good‐faith 15
exception to the exclusionary rule applies because, at the time of the 16 1 This opinion has been circulated to all the judges of the Court prior to filing.
5
stop, the officers reasonably relied on our precedent in Harrison. As 1
to Gomez’s other arguments, we conclude that the district court did 2
not clearly err in concluding that (i) the initial stop was based on 3
valid probable cause or reasonable suspicion to believe he 4
committed a traffic violation, and (ii) he consented to the searches of 5
the car, its trunk, and the closed bag in the trunk. Accordingly, we 6
AFFIRM the judgment of the district court. 7
BACKGROUND 8
I. The Heroin‐Trafficking Investigation 9
In March 2014, Hartford police detective James Campbell and 10
Drug Enforcement Administration (“DEA”) special agent Michael 11
Schatz––members of a DEA task force––were investigating a large‐12
scale heroin‐trafficking organization operating out of Hartford.2 13
2 Unless otherwise noted, the following background is drawn from the testimony of Campbell and Schatz during the June 2015 suppression hearing, the second suppression hearing that was held due to the retirement of the district judge originally assigned to this case. In denying Gomez’s motion to suppress, the district court credited their testimony as to the issues of (i) a traffic violation, (ii) Gomez’s consent to the searches, (iii) the duration of the stop, and (iv) the nature of the questioning during the stop.
6
Based on information from a wiretap and cooperating sources, 1
Campbell and Schatz suspected that the organization, led by Alex 2
Ortiz‐Gomez, was in the process of packaging several kilograms of 3
heroin for street‐level sale. In addition to this information, 4
Campbell and Schatz knew that law enforcement officers in New 5
Jersey stopped Ortiz‐Gomez and his cousin, Defendant‐Appellant 6
Brayan Gomez, in a black Honda Accord the previous year, and 7
during a search of the car the officers discovered nearly $80,000 in 8
cash, which the DEA seized.3 9
On March 19, Campbell and Schatz began surveillance of two 10
addresses associated with Alex Ortiz‐Gomez––one in Hartford and 11
another in East Hartford. The following morning, Campbell 12
observed Brayan Gomez exit the Hartford address and drive away 13
in a white Acura.4 Schatz followed Gomez to the East Hartford 14
3 Although Campbell initially believed that Brayan Gomez was Alex OrtizGomez’s brother, they are cousins. 4 Campbell recognized Brayan Gomez at this time.
7
address, where Gomez briefly entered and exited the residence, 1
switched cars, and again drove away. Gomez left the East Hartford 2
address in a black Honda Accord––the same car involved in the 3
$80,000 New Jersey cash seizure a year earlier. 4
With Campbell and Schatz (in separate vehicles) covertly 5
following, Gomez drove to a nearby Ramada Inn hotel in East 6
Hartford and parked the black Honda. Although Campbell and 7
Schatz did not arrive in time to see Gomez enter the hotel, Campbell 8
saw him exit the Ramada Inn a few minutes later carrying a 9
“weighted” black duffel bag. After placing the bag in the Honda’s 10
trunk, Gomez drove away again, this time towards the highway; 11
Campbell and Schatz continued to follow. 12
When Campbell saw Gomez place the duffel bag in the car’s 13
trunk and drive away, he notified Schatz and other nearby officers 14
via radio transmissions that he planned to execute a pretextual stop 15
of the Honda if Gomez committed a traffic violation. Gomez then 16
8
drove through a red light before entering the highway. After 1
Gomez merged on to the highway, Campbell and Schatz observed 2
him speeding and changing lanes without using a directional signal. 3
Gomez did not travel on the highway for long; he slowed to 4
exit via an off‐ramp in East Hartford, allowing Campbell and Schatz 5
to catch up. According to Campbell, Gomez committed a third 6
traffic violation at the end of the off‐ramp by making a right turn at 7
a red light without stopping.5 8
II. The Traffic Stop 9
Shortly after Gomez exited the highway, Campbell used his 10
unmarked car’s lights and siren to pull Gomez over. Schatz arrived 11
at the scene shortly thereafter and parked his car in front of the black 12
Honda, which was on the road’s shoulder. While Schatz remained 13
in his car, Campbell approached the Honda on the driver’s side and 14
5 As we discuss further in addressing the legality of the initial traffic stop, Campbell’s testimony concerning this third purported violation may be inconsistent and perhaps contradicted by Schatz’s testimony. See infra at 54–59.
9
noticed, through the open driver‐side window, that Gomez 1
“appeared to be nervous as far as what [is] typical in a normal traffic 2
stop”––keeping his hands on the steering wheel, visibly shaking, 3
and maintaining his gaze forward through the windshield. 4
Campbell asked Gomez to turn off the car’s engine. When Gomez, 5
without complying, asked why he was stopped, Campbell again 6
directed Gomez to turn off the engine for “safety purposes.” 7
Shortly after Gomez turned off the engine, Campbell’s 8
questioning detoured from traffic violations to the subject of heroin: 9
Question: After [Gomez] shut the car off, what 10 interaction did you have with him at [that] point? 11 12 Campbell: Once he complied and shut the vehicle off, 13 he again asked me why he had been stopped. I told 14 him that we were conducting an investigation into bad 15 heroin as well as firearms within the city of Hartford. 16 Then I also told him that, you know, I observed him 17 travel[l]ing at a high rate of speed as well as travel[l]ing 18 through the red lights. 19 20
10
App’x 248 (emphasis added).6 1
At Campbell’s request, Gomez provided him with the car’s 2
registration, which listed Joan Sanchez as the owner. At that time, 3
Campbell did not also ask for Gomez’s license. Campbell then 4
asked Gomez where he was coming from, and Gomez responded, 5
untruthfully, that he had come from home. After Campbell inquired 6
where he was travelling, Gomez replied that he was going to the 7
home of his sister‐in‐law Joan Sanchez––the owner of the black 8
Honda––but he did not know her exact address. Then, Campbell 9
6 The precise order of Campbell’s initial statements to Gomez is not entirely clear, as he testified during the November 2014 suppression hearing that he first notified the Gomez about his traffic violations and “[t]hen . . . told [Gomez] that [the officers] were doing an investigation involving heroin and firearms . . . .” App’x 47–48. Furthermore, on cross‐examination during the suppression hearings, Campbell admitted that he “may” have initially told Gomez, untruthfully, that he was stopped because he fit the description of someone involved in a shooting. App’x 88–89. According to Campbell, this was a “technique” to “calm the person down or to not let them know that we [are] on to the fact of what they are doing initially.” See App’x 88–89, 284–85; see also App’x 292.
11
asked for the name of Joan Sanchez’s spouse; Gomez responded that 1
she was married to Alex Ortiz‐Gomez.7 2
After this initial questioning with Gomez in the driver’s seat, 3
Campbell asked him to exit the car and walk around to the 4
passenger side.8 At that point, Schatz exited his car and joined 5
Gomez and Campbell in a grass area on the side of the road. While 6
they stood in the grass, Campbell again told Gomez that they were 7
investigating “bad heroin that had been laced with Fentanyl and 8
firearms” in Hartford, and Gomez replied that he did not “know 9
anything about that.” App’x 250; see also App’x 48. 10
According to Campbell, he then asked whether Gomez 11
“mind[ed]” if Campbell searched the car, and Gomez replied “no, 12
you can go ahead . . . [t]here’s nothing in there.” App’x 250; see also 13
7 At this point, there still appears to have been confusion over whether Gomez was the cousin or brother of Alex Ortiz‐Gomez. 8 According to Campbell, traffic from the nearby intersection was passing on the driver’s side, and he therefore asked Gomez to exit the Honda for safety purposes.
12
App’x 50. While Schatz watched Gomez, Campbell conducted a 1
search of the front passenger area and found a receipt from the 2
Ramada Inn. The receipt, which displayed Gomez’s name and home 3
address,9 indicated a stay from March 17 to March 19 (the day before 4
the stop) that was paid for in cash.10 5
After Campbell found the receipt, he approached Gomez and 6
asked “if he had anything on his person.” App’x 253. Gomez 7
replied that he did not. Campbell then conducted a pat‐down and 8
asked him to remove the items from his pockets. Gomez removed 9
his wallet, which contained his license, and two Ramada Inn room 10
keys from his pants pocket. With the receipt and room keys in hand, 11
Campbell asked Gomez if he had stayed at the Ramada Inn. Gomez 12
initially responded that he was not staying at the hotel, but that his 13
9 The listed address was 82 Sisson Avenue in Hartford––the address where Gomez entered the white Acura earlier that morning.
10 After the stop, Campbell obtained another receipt from the Ramada Inn’s staff indicating that Gomez checked out of the Ramada Inn on March 20, the morning of the stop, and paid in cash.
13
friends were. When Campbell pressed Gomez as to why he had the 1
keys if only his friends were staying there, Gomez admitted that he 2
had been staying there as well.11 3
Campbell then asked Gomez whether he had anything in the 4
car’s trunk, and whether he “mind[ed]” if Campbell opened it. See 5
App’x 256–58; see also App’x 58–59. According to both Campbell 6
and Schatz, Gomez replied with words to the effect of “go ahead.” 7
App’x 257–58, 312; see also App’x 58–59, 176. When Campbell 8
opened the trunk, he saw the black duffel bag that Gomez had 9
carried out of the hotel earlier, a large cardboard box, and several 10
smaller cardboard boxes stamped with the words “City Vibe.”12 11
With the trunk open, Campbell asked whether Gomez 12
“mind[ed]” if he opened the duffel bag. App’x 256–58; see also 13
11 Campbell and Schatz testified that throughout their interaction with Gomez outside of the car, he appeared nervous––failing to make eye contact, swaying in place, and fidgeting.
12 According to Campbell, Schatz was familiar with the “brand” of “City Vibe” heroin from executing controlled purchases through an informant. App’x 261– 62; see also App’x 62.
14
App’x 62–63. According to both Campbell and Schatz, Gomez said 1
something along the lines of “no, but what are you looking for?” 2
App’x 256, 258, 313; see also App’x 62–63, 177. Campbell opened the 3
bag to find more than 13,000 baggies of heroin packaged for sale, a 4
larger bag containing raw heroin, and other items used in packaging 5
narcotics; in total, the duffel bag contained 378.6 grams of heroin. 6
An East Hartford police officer who had arrived at the scene a few 7
minutes earlier arrested Gomez. Gomez never received a citation for 8
the traffic violations that he committed before the stop. 9
Campbell and Schatz testified that the entire stop––from the 10
moment Campbell pulled Gomez over to the moment he opened the 11
duffel bag––lasted about five minutes. App’x 271, 318. 12
III. District Court Proceedings 13
In March 2014, a federal grand jury in the United States 14
District Court for the District of Connecticut returned an indictment 15
charging Gomez with one count of possession with intent to 16
15
distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). 1
In June 2014, Gomez moved to suppress the heroin and drug‐2
packaging materials, arguing that they were fruits of an unlawful 3
search and seizure under the Fourth Amendment. Relying on his 4
own two‐page affidavit, Gomez claimed that he did not commit 5
traffic violations and did not consent to the searches of the car, its 6
trunk, or the closed duffel bag. Therefore, Gomez argued that (i) the 7
traffic stop was not supported by probable cause or reasonable 8
suspicion, and (ii) the warrantless searches were executed without 9
his consent.13 10
In November 2014, the district court (Burns, J.) held a 11
suppression hearing during which Campbell and Schatz testified; 12
Gomez did not testify.14 With the district court’s permission, Gomez 13
13 In his motion, Gomez did not argue that the traffic stop was unreasonably prolonged in violation of the Fourth Amendment.
14 The East Hartford police officer who arrested Gomez after the searches also testified, essentially for the undisputed fact that Gomez did not receive a traffic citation.
16
supplemented his motion with a post‐hearing brief in February 2015, 1
arguing that Campbell’s questions concerning the drug investigation 2
were unrelated to the traffic violations and extended the traffic stop 3
in violation of the Fourth Amendment. In March 2015, the presiding 4
district judge retired without rendering a decision on Gomez’s 5
motion to suppress. 6
In June 2015, after the case was transferred to a different 7
district judge (Hall, C.J.), the district court held a second suppression 8
hearing. Two months before that resumed hearing, the Supreme 9
Court decided Rodriguez v. United States, ––– U.S. –––, 135 S. Ct. 1609 10
(2015), but neither Gomez nor the Government filed a supplemental 11
brief concerning Rodriguez before or after the second hearing. 12
During the second hearing, Campbell and Schatz testified again, and 13
the court heard oral argument. The parties and the district court did 14
not discuss Rodriguez during the hearing, but they did discuss this 15
17
Court’s decision in United States v. Harrison, 606 F.3d 42 (2d Cir. 1
2010) (per curiam). 2
In late June 2015, the district court issued a ruling denying 3
Gomez’s motion to suppress. See United States v. Gomez, No. 14‐cr‐4
63, 2015 WL 3936397, at *1–3 (D. Conn. June 26, 2015). First, as to 5
Gomez’s argument that the initial stop was unlawful, the district 6
court credited the testimony of Campbell and Schatz, concluding 7
that there was probable cause or reasonable suspicion to believe that 8
Gomez drove through a red light before entering the highway and 9
was speeding on the highway.15 Id. at *2. Second, the district court 10
rejected Gomez’s argument that he did not consent to the searches 11
notwithstanding his affidavit, again finding the testimony of 12
Campbell and Schatz credible and “largely consistent with each 13
15 The district court did not base its decision on, or address, the disputed third traffic violation concerning the red light at the end of the exit ramp. See id. at *1–3.
18
other, as well as with their prior testimony in the [first suppression] 1
hearing.” Id. 2
Third, the district court concluded that Campbell did not 3
unreasonably extend the traffic stop in violation of the Fourth 4
Amendment, even though it acknowledged that he questioned 5
Gomez about matters unrelated to the traffic violations. See id. at *2–6
3. The district court relied on this Court’s holding in Harrison: 7
The Second Circuit has previously found a stop of five 8 to six minutes was not unlawfully prolonged, United 9 States v. Harrison, 606 F.3d 42 (2d Cir. 2010), and other 10 circuits have upheld longer intervals . . . . 11 12 There is no evidence on the record to contradict 13 testimony by Detective Campbell and Special Agent 14 Schatz that the stop lasted five minutes at most until 15 Gomez was arrested. Based on the record before it, the 16 court finds that, while Gomez was questioned about 17 matters unrelated to the traffic violation during this 18 time period, such questioning did not unreasonably 19 prolong the stop so as to render it unconstitutional. 20 21 Id. at *3. The district court did not address the Government’s 22
alternative argument that independent reasonable suspicion of a 23
19
drug offense justified extending the traffic stop for the narcotics 1
questioning. See id. at *2–3. 2
After the district court denied his motion, in September 2015 3
Gomez conditionally pleaded guilty pursuant to a plea agreement 4
that allowed him to appeal the district court’s suppression ruling. In 5
January 2016, the district court sentenced Gomez to sixty months’ 6
imprisonment, the statutory minimum under 21 U.S.C. 7
§ 841(b)(1)(B). After the district court entered judgment on January 8
8, 2016, Gomez timely appealed. 9
DISCUSSION 10
“On appeal from a denial of a suppression motion, we review 11
a district court’s findings of fact for clear error, and its resolution of 12
questions of law and mixed questions of law and fact de novo.” 13
United States v. Ulbricht, 858 F.3d 71, 94–95 (2d Cir. 2017) (internal 14
quotation marks omitted). In reviewing a district court’s findings of 15
fact for clear error, we also “pay special deference to the district 16
20
court’s factual determinations going to witness credibility.” United 1
States v. Jiau, 734 F.3d 147, 151 (2d Cir. 2013). 2
Gomez raisesthree arguments on appeal. First, he contends 3
that the officers unconstitutionally prolonged his traffic stop, a 4
seizure under the Fourth Amendment. Second, Gomez argues that 5
the district court clearly erred in finding that the initial stop was 6
based on valid probable cause or reasonable suspicion to believe he 7
committed a traffic violation. Third, he challenges the veracity of 8
the officers’ testimony and the district court’s factual finding that he 9
verbally consented to the searches of the car, its trunk, and the 10
closed duffel bag in the trunk. 11
I. Duration of the Traffic Stop 12
A. Traffic Stops after Rodriguez v. United States 13
The Fourth Amendment guarantees “[t]he right of the people 14
to be secure in their persons, houses, papers, and effects, against 15
unreasonable searches and seizures . . . .” U.S. Const. amend. IV. 16
21
“Temporary detention of individuals during the stop of an 1
automobile by the police, even if only for a brief period and for a 2
limited purpose, constitutes a ‘seizure’ of ‘persons’ within the 3
meaning of [the Fourth Amendment].” Whren v. United States, 517 4
U.S. 806, 809–10 (1996). Therefore, traffic stops must satisfy the 5
Fourth Amendment’s reasonableness limitation, which “requires 6
that an officer making a traffic stop have probable cause or 7
reasonable suspicion that the person stopped has committed a traffic 8
violation or is otherwise engaged in or about to be engaged in 9
criminal activity.” United States v. Stewart, 551 F.3d 187, 191 (2d Cir. 10
2009) (alterations and emphasis omitted). 11
1. Pre‐Rodriguez Supreme Court Decisions 12
A decade before Rodriguez v. United States, ––– U.S. –––, 135 S. 13
Ct. 1609 (2015), the Supreme Court explained in Illinois v. Caballes 14
that even when a traffic stop is based on probable cause or 15
reasonable suspicion at the outset, “[i]t is nevertheless clear that a 16
22
seizure that is lawful at its inception can violate the Fourth 1
Amendment if its manner of execution unreasonably infringes 2
interests protected by the Constitution.” Illinois v. Caballes, 543 U.S. 3
405, 407 (2005). More specifically, “[a] seizure that is justified solely 4
by the interest in issuing a warning ticket to the driver can become 5
unlawful if it is prolonged beyond the time reasonably required to 6
complete that mission.” Id. 7
In Caballes, the Court considered a ten‐minute traffic stop for 8
speeding where one officer led a narcotics‐detection dog around the 9
driver’s car while a second officer simultaneously “was in the 10
process of writing a warning ticket.” Id. at 406. The dog alerted to 11
the presence of marijuana, and the driver was arrested and 12
subsequently convicted of a state narcotics offense. Id. at 406–07. 13
The Court affirmed the Illinois Supreme Court’s “conclusion that the 14
duration of the stop . . . was entirely justified by the traffic offense 15
and the ordinary inquiries incident to such a stop,” and held that no 16
23
Fourth Amendment violation occurred. See id. at 408 (noting the 1
state court had “carefully reviewed” the details of the officer’s 2
conversations with the driver and the radio transmissions “to 3
determine whether he had improperly extended the duration of the 4
stop to enable the dog sniff to occur”).16 5
A few years later, in Arizona v. Johnson, the Court further 6
considered “[a]n officer’s inquiries into matters unrelated to the 7
justification for the traffic stop.” Arizona v. Johnson, 555 U.S. 323, 333 8
(2009). The Court explained in Johnson that a stop remains lawful so 9
long as such inquiries do not “measurably extend the duration of the 10
stop.” Id. (emphasis added). In Johnson, during the time necessary 11
for an officer to complete the processing of a traffic stop for a 12
suspended vehicle registration, a different officer on the scene 13
16 Accordingly, the Court proceeded to address a separate issue, holding that a dog sniff––an investigation unrelated to the underlying speeding violation–– conducted while a driver is otherwise “lawfully seized for a traffic violation” “generally does not implicate legitimate privacy interests” and thus “does not rise to the level of a constitutionally cognizable infringement” of the Fourth Amendment. Id. at 409.
24
acquired reasonable suspicion that a passenger in the back seat was 1
armed and dangerous. Id. at 328. The officer frisked the passenger 2
and found an unlawful handgun. Id. The passenger moved to 3
suppress the handgun in the resulting criminal prosecution, but the 4
Supreme Court concluded that no Fourth Amendment violation 5
occurred because, in part, the traffic stop was not “measurably 6
extend[ed].” Id. at 333. 7
2. Circuit Courts Applying Johnson and Caballes 8
After Johnson and Caballes, several of our sister circuits 9
determined whether unrelated investigations during otherwise 10
lawful traffic stops “measurably extend[ed]” such stops or 11
prolonged them beyond the time “reasonably required” to issue a 12
ticket. See Johnson, 555 U.S. at 333; Caballes, 543 U.S. at 407. Rather 13
than adopt a per se rule that any extension of a traffic stop for an 14
unrelated investigation is unlawful, several circuits assessed the 15
25
overall reasonableness of the stop’s duration and the extension on a 1
case‐by‐case basis.17 2
In particular, the Eighth Circuit developed a de minimis rule: a 3
brief, minutes‐long extension of a traffic stop to conduct an 4
unrelated investigation, such as a dog sniff, is a de minimis intrusion 5
on a driver’s personal liberty that does not violate the Fourth 6
Amendment. See United States v. Alexander, 448 F.3d 1014, 1017 (8th 7
Cir. 2006) (upholding four‐minute delay as de minimis intrusion); 8 17 See, e.g., United States v. McBride, 635 F.3d 879, 883 (7th Cir. 2011) (noting that two‐minute extension of traffic stop to ask unrelated questions would not “convert a lawful stop into an unlawful one” even if reasonable suspicion did not exist); United States v. Turvin, 517 F.3d 1097, 1101–04 (9th Cir. 2008) (explaining that “[w]e will not accept a bright‐line rule that questions are unreasonable if the officer pauses in the ticket‐writing process in order to ask them” and concluding that a fourteen‐minute traffic stop––with a four‐minute extension to investigate narcotics––was reasonable); United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir. 2007) (stating that unrelated questioning that does not “appreciably” extend the duration of a traffic stop is reasonable); see also United States v. Bell, 555 F.3d 535, 541–42 (6th Cir. 2009) (rejecting argument that independent “reasonable suspicion is required unless all of the [o]fficers’ actions were focused precisely on the purpose of the stop with no deviation whatsoever”); United States v. Hernandez, 418 F.3d 1206, 1212 n.7 (11th Cir. 2005) (“Even if seventeen minutes is some minutes longer than the norm, we question whether the Fourth Amendment’s prohibition of unreasonable seizures is concerned with such trifling amounts of time, when the seizure was caused at the outset by an apparent violation of the law. Of trifles the law does not concern itself: De minimis non curat lex.” (emphasis in original)).
26
United States v. Martin, 411 F.3d 998, 1000, 1002 (8th Cir. 2005) 1
(upholding two‐minute delay). The Fourth Circuit adopted a similar 2
rule. See United States v. Farrior, 535 F.3d 210, 220 (4th Cir. 2008) 3
(concluding that “any delay in conducting . . . drug‐dog sniff 4
amounted to a de minimis intrusion on [driver’s] liberty interest” and 5
was thus “not unreasonable as a violation of his Fourth Amendment 6
rights”). 7
In United States v. Harrison, we applied Johnson and Caballes in 8
the context of a traffic stop (for a defective license plate light) that 9
was extended by officer questioning; a search of the car revealed a 10
gun and, ultimately, crack cocaine. See United States v. Harrison, 606 11
F.3d 42, 44–45 (2d Cir. 2010) (per curiam). After the officer 12
recognized the driver from previous traffic stops that had uncovered 13
narcotics, he inquired about the driver’s travels that night, then 14
separately questioned the passengers to “see if they would 15
27
corroborate” the driver’s story, and then confronted the driver with 1
the conflicting account of one of the passengers. Id. at 44. 2
Even though we acknowledged that the officer testified that 3
he “had all of the information needed to issue the traffic ticket before 4
he first approached” the car’s passengers to ask questions unrelated 5
to the defective light, we explained that the stop’s extension was 6
reasonable because “the time elapsed between the stop and the 7
arrest was only five to six minutes, and the questions about the 8
passengers’ comings and goings were subsumed in that brief 9
interval.” Id. at 45. Furthermore, while we did not expressly adopt 10
the de minimis rule, we cited decisions from other circuits for the 11
proposition that “[l]onger intervals than five to six minutes have 12
been deemed tolerable.” Id. (collecting cases).18 Accordingly, we 13
held that the unrelated questioning during the five‐to‐six minute 14
18 Indeed, we cited the Eleventh Circuit’s decision in Hernandez, which doubted whether the Fourth Amendment “is concerned with such trifling amounts of time” as seventeen minutes. See id. (quoting Hernandez, 418 F.3d at 1212 n.7).
28
stop “did not prolong the stop so as to render it unconstitutional.” 1
Id. 2
3. Rodriguez 3
In Rodriguez v. United States, the Supreme Court rejected the 4
Eighth Circuit’s de minimis rule, holding that “a police stop 5
exceeding the time needed to handle the matter for which the stop 6
was made violates the Constitution’s shield against unreasonable 7
seizures.” Rodriguez v. United States, ––– U.S. –––, 135 S. Ct. 1609, 8
1612 (2015). Rodriguez involved a seven or eight minute delay 9
between the completion of a traffic stop, which had ended with a 10
written warning, and a dog sniff that ultimately uncovered 11
methamphetamine in the car. See id. at 1612–13. 12
Adopting findings made by a magistrate judge, the district 13
court in Rodriguez found that the officer lacked independent 14
reasonable suspicion of a drug offense to extend the detention once 15
he issued the written warning, but it nevertheless denied the 16
29
defendant’s motion to suppress, concluding that the seven‐to‐eight 1
minute extension was “only a de minimis intrusion on Rodriguez’s 2
Fourth Amendment rights and was therefore permissible.” Id. at 3
1613–14. The Eighth Circuit affirmed, held that the delay was an 4
acceptable de minimis intrusion, and did not review the district 5
court’s finding that the officer lacked independent reasonable 6
suspicion to extend the seizure. See id. at 1614. 7
The Supreme Court vacated the Eighth Circuit’s judgment, 8
beginning by explaining that “[l]ike a Terry stop, the tolerable 9
duration of police inquiries in the traffic‐stop context is determined 10
by the seizure’s mission––to address the traffic violation that 11
warranted the stop and attend to related safety concerns.” Id. 12
(citation and internal quotation marks omitted). Acknowledging 13
Caballes (dog sniff) and Johnson (questioning of a passenger by a 14
different officer)––in which the Court “concluded that the Fourth 15
Amendment tolerated certain unrelated investigations that did not 16
30
lengthen the roadside detention”––the Court reiterated that 1
“[b]ecause addressing the infraction is the purpose of the stop, it 2
may last no longer than is necessary to effectuate that purpose.” Id. 3
(emphasis added) (alterations and internal quotation marks 4
omitted). In other words, “[a]uthority for the seizure . . . ends when 5
tasks tied to the traffic infraction are––or reasonably should have 6
been––completed.” Id. 7
To be sure, the Court recognized that an officer “may conduct 8
certain unrelated checks during an otherwise lawful traffic stop.” Id. 9
at 1615. But “he may not do so in a way that prolongs the stop, 10
absent the reasonable suspicion ordinarily demanded to justify 11
detaining an individual.” Id. Therefore, officers may conduct 12
certain ordinary inquiries related to a traffic stop, such as “checking 13
the driver’s license, determining whether there are outstanding 14
warrants against the driver, and inspecting the automobile’s 15
registration and proof of insurance,” without independent 16
31
reasonable suspicion of other crimes. Id. However, tasks not related 1
to the traffic mission, such as dog sniffs or “[o]n‐scene investigation 2
into other crimes,” are unlawful if they prolong the stop absent 3
independent reasonable suspicion. Id. at 1616. 4
In so holding, the Court emphasized that the “critical 5
question” is not whether the unrelated investigation “occurs before 6
or after the officer issues a ticket,” but whether conducting the 7
unrelated investigation “prolongs––i.e., adds time to––the stop.” Id. 8
(internal quotation marks omitted). Additionally, the Court 9
specifically rejected the Government’s contention that an officer may 10
“incrementally” prolong a stop to conduct an unrelated 11
investigation “so long as the officer is reasonably diligent in 12
pursuing the traffic‐related purpose of the stop, and the overall 13
duration of the stop remains reasonable in relation to the duration of 14
other traffic stops involving similar circumstances.” Id. (alteration 15
omitted). The Court explained that an officer does not “earn bonus 16
32
time to pursue an unrelated criminal investigation” by “completing 1
all traffic‐related tasks expeditiously” because “[t]he reasonableness 2
of a seizure . . . depends on what the police in fact do.” Id. 3
The Court remanded to the Eighth Circuit, leaving open “[t]he 4
question whether reasonable suspicion of criminal activity justified 5
detaining Rodriguez beyond completion of the traffic infraction 6
investigation . . . .”19 Id. at 1616–17. 7
On remand, the Eighth Circuit again affirmed, but it did not 8
address reasonable suspicion of a drug offense. See United States v. 9
Rodriguez, 799 F.3d 1222, 1223–24 (8th Cir. 2015), cert. denied, 136 S. 10
Ct. 1514 (2016). Rather, it concluded that the good‐faith exception to 11
the exclusionary rule applied because officers conducted the 12
extended traffic stop in objectively reasonable reliance on binding 13
19 The Court declined to affirm on the basis of the officer acquiring reasonable suspicion for the drugs. The district court concluded that the officer did not have reasonable suspicion to prolong the traffic stop once he issued the written warning. The Eighth Circuit did not address that issue. Id. at 1616–17; see also id. at 1615 (criticizing one dissent for making its “own finding of ‘reasonable suspicion’”).
33
circuit precedent at the time of the stop: the de minimis rule. Id. at 1
1224. 2
B. Analysis 3
1. Rodriguez Abrogates Harrison 4
We begin by addressing Gomez’s contention that the district 5
court erred by applying Harrison rather than Rodriguez,20 which the 6
Supreme Court decided two months before the June 2015 7
suppression hearing.21 8
Although at least one district court in this Circuit has 9
recognized Rodriguez’s abrogation of Harrison,22 we have not yet had 10
20 The district court cited Rodriguez but did not indicate that it affected Harrison. See Gomez, 2015 WL 3936397, at *2–3.
21 A Supreme Court decision “construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.” United States v. Johnson, 457 U.S. 537, 562 (1982).
22 See United States v. Gomez, 199 F. Supp. 3d 728, 742–43 & n.11 (S.D.N.Y. 2016) (finding reasonable suspicion to extend the stop under the circumstances but noting that Rodriguez “rejected [Harrison’s] reasoning”).
34
the opportunity to consider the issue. We conclude that Harrison’s 1
holding does not survive Rodriguez.23 2
We held in Harrison that unrelated questioning “subsumed” in 3
a five‐to‐six minute traffic stop does not measurably prolong a stop 4
so as to render it unconstitutional. See Harrison, 606 F.3d at 45. We 5
explained that the Constitution demands only that a seizure remain 6
reasonable, and that the five‐to‐six minute seizure was “brief”––7
shorter than intervals that “have been deemed tolerable” in other 8
circuits. Id. 9
In Rodriguez, however, the Court held that a police stop 10
“exceeding the time needed to handle the matter for which the stop 11
was made” violates the Fourth Amendment absent independent 12
reasonable suspicion of another offense. Rodriguez, 135 S. Ct. at 13
1612. Moreover, the “reasonableness of a seizure . . . depends on 14
23 Notably, the Government does not meaningfully contest that Rodriguez overrules Harrison. See Appellee’s Br. 36 & n.7 (arguing that even if Gomez is correct, we “need not decide here whether Rodriguez abrogates Harrison”).
35
what the police in fact do,” rather than a comparison to the duration 1
of a hypothetically expeditious seizure or the duration of a seizure in 2
similar circumstances. See id. at 1616. Therefore, an officer may not 3
obtain “bonus time to pursue an unrelated criminal investigation,” 4
and if such an investigation does in fact “prolong[]––i.e., add[] time 5
to––the stop,” the seizure is unconstitutional absent reasonable 6
suspicion of the other offense. Id. (internal quotation marks 7
omitted). In Harrison, even though the officer testified that he “had 8
all of the information needed to issue the traffic ticket” (the stop’s 9
mission), he added time to the seizure by “approach[ing] the 10
[passengers] in the car to corroborate [the driver’s] story”––an 11
inquiry unrelated to the traffic violation. Harrison, 606 F.3d at 45. 12
Based on the total length of the stop, we concluded that this 13
extension was reasonable. See id. That conclusion, however, 14
conflicts with, and thus must yield to, Rodriguez’s holding: unrelated 15
inquiries that prolong or add time to a traffic stop violate the Fourth 16
36
Amendment absent reasonable suspicion of a separate crime.24 See 1
Rodriguez, 135 S. Ct. at 1616. 2
Accordingly, we conclude that Rodriguez abrogates Harrison, 3
and that the district court therefore erred by applying Harrison in 4
denying Gomez’s motion to suppress. See Gomez, 2015 WL 3936397, 5
at *3 (noting that this Court “found a stop of five to six minutes was 6
not unlawfully prolonged” in Harrison, and that there was no 7
evidence to contradict the testimony of Campbell and Schatz that the 8
stop lasted “five minutes at most”). 9
24 We conclude that the other potential grounds for distinguishing Harrison from Rodriguez are unpersuasive. First, although Harrison involved questioning while Rodriguez involved a dog sniff, the Court treated both as investigations unrelated to the traffic stop’s mission. See Rodriguez, 135 S. Ct. at 1614 (noting that Johnson (questioning) and Caballes (dog sniff) both involved unrelated investigations); see also id. at 1616 (“On‐scene investigation into other crimes . . . detours from [a traffic stop’s] mission.”). Second, the fact that the questioning in Harrison occurred before a ticket was issued (no ticket was ultimately issued, it seems) while the dog sniff in Rodriguez followed the issuance of a ticket is of no moment because in both situations, unrelated investigations extended the seizure. As the Court explained in Rodriguez, “[t]he critical question . . . is not whether the [unrelated investigation] occurs before or after the officer issues a ticket . . . but whether conducting the sniff prolongs––i.e., adds time to––the stop.” Id. (citations and internal quotation marks omitted).
37
2. Gomez’s Traffic Stop is Unconstitutional 1
We conclude that Gomez’s traffic stop violates the Fourth 2
Amendment because Campbell’s investigative inquiries unrelated to 3
the traffic violations “prolong[ed]––i.e., add[ed] time to––the stop.” 4
Rodriguez, 135 S. Ct. at 1616 (internal quotation marks omitted). In 5
applying Rodriguez, we look to what Campbell “in fact d[id],” not 6
whether “the overall duration of the stop remains reasonable in 7
relation to the duration of other traffic stops involving similar 8
circumstances.” Id. 9
Although both Campbell and Schatz testified that the stop 10
lasted no longer than five minutes, the district court’s factual 11
findings confirm that “Gomez was questioned about matters 12
unrelated to the traffic violation[s] during this time period.” Gomez, 13
2015 WL 3936397, at *3 (emphasis added). The district court 14
concluded, by applying Harrison, that these unrelated questions did 15
not “unreasonably” prolong a concededly brief stop, but we have no 16
38
doubt that Campbell’s inquiries did in fact add time to the stop in 1
violation of Rodriguez. 2
From the moment that Campbell first approached the black 3
Honda, his questioning “detour[ed] from th[e] mission” of the stop 4
(Gomez’s traffic violations) to the DEA’s heroin‐trafficking 5
investigation. See Rodriguez, 135 S. Ct. at 1616. As Campbell stated 6
on direct examination: 7
Once [Gomez] complied and shut the vehicle off, he 8 again asked me why he had been stopped. I told him 9 that we were conducting an investigation into bad 10 heroin as well as firearms within the city of Hartford. 11 Then I also told him that, you know, I observed him 12 travel[l]ing at a high rate of speed as well as travel[l]ing 13 through the red lights. 14 15 App’x 248 (emphasis added). After Campbell asked for the car’s 16
registration (but notably not Gomez’s license––necessary to write a 17
ticket), he asked Gomez who Joan Sanchez–– the car’s owner––was 18
married to, and Gomez responded that she was married to Alex 19
Ortiz‐Gomez (the suspected leader of the heroin‐trafficking 20
39
organization).25 When Campbell asked Gomez to exit the car, his 1
inquiries again turned to “bad heroin that had been laced with 2
Fentanyl and firearms” in Hartford. App’x 250. Once Campbell 3
searched the interior of the car and discovered the Ramada Inn 4
receipt, he conducted a pat‐down, which produced the hotel room 5
keys. With the receipt and room keys in hand, Campbell inquired 6
whether Gomez was staying at the Ramada Inn, pressing him as to 7
why he possessed the keys if only his friends were staying there. 8
Finally, Campbell searched the car’s trunk and the contents of the 9
trunk. 10
These undisputed facts demonstrate that Campbell spent 11
much of the time of the stop, if not most of it, asking questions and 12
executing searches related to the heroin investigation rather than 13
conducting “ordinary inquiries incident to the traffic stop”––such as 14
checking Gomez’s license, determining whether there were 15
25 This is an unusual question for a traffic stop that, under Rodriguez, must be focused on the traffic violations that justified the stop.
40
outstanding warrants for him, and inspecting the car’s proof of 1
insurance. See Rodriguez, 135 S. Ct. at 1615 (alteration omitted). 2
Even assuming Gomez’s detention lasted only five minutes, 3
Campbell extended the seizure to ask questions pertinent to “an 4
unrelated criminal investigation.” Id. at 1616. Under Rodriguez, this 5
violates the Fourth Amendment. See id. (explaining that 6
reasonableness of stop depends on what officer in fact does rather 7
than overall duration of stop in relation to other stops in similar 8
circumstances). Just as an officer may not earn “bonus time” to 9
conduct inquiries for an unrelated criminal investigation by 10
efficiently processing the matters related to the traffic stop, see id., an 11
officer may not consume much of the time justified by the stop with 12
inquiries about offenses unrelated to the reasons for the stop. 13
The Government does not appear to dispute this conclusion, 14
arguing only in passing that Campbell and Schatz “simultaneously 15
pursued the traffic violations and the heroin trafficking 16
41
investigation.” Appellee’s Br. 14. However, the record belies that 1
argument. While Officer Campbell was initially questioning Gomez 2
in the driver’s seat of the black Honda, Agent Schatz had not even 3
exited his car yet. And when Schatz did join them on the side of the 4
road, he stood by and watched Gomez while Campbell questioned 5
him and searched the car. This is not a situation where one officer 6
expeditiously completed all traffic‐related tasks while another 7
officer questioned the driver or conducted a dog sniff without 8
extending the stop. See Caballes, 543 U.S. at 406, 408 (declining to 9
disturb state court’s conclusion that stop was not improperly 10
extended where second officer “immediately” responded to the 11
scene of a stop and conducted dog sniff while first officer “was in 12
the process of writing a warning ticket”). 13
The Government’s principal argument, however, is that the 14
extended traffic stop is lawful under Rodriguez because the officers 15
possessed independent reasonable suspicion that Gomez was 16
42
trafficking heroin. See Appellee’s Br. 30–35; see also Rodriguez, 135 S. 1
Ct. at 1615 (explaining that stop may not be prolonged to conduct 2
unrelated investigation “absent the reasonable suspicion ordinarily 3
demanded to justify detaining an individual”). In so arguing, the 4
Government contends that we should affirm on the basis of 5
reasonable suspicion of a drug crime––an issue that was litigated 6
below but the district court did not reach. See Gomez, 2015 WL 7
3936397, at *2–3. 8
“In general, ‘a federal appellate court does not consider an 9
issue not passed upon below.’” Booking v. Gen. Star Mgmt. Co., 254 10
F.3d 414, 418 (2d Cir. 2001) (quoting Singleton v. Wulff, 428 U.S. 106, 11
120 (1976)); accord Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 90 12
(2d Cir. 2004) (“In general, we refrain from analyzing issues not 13
decided below . . . .”). This general rule, however, is a prudential 14
one, and we therefore have “broad discretion” to consider issues 15
that “were raised.
Outcome: We conclude that the Supreme Court’s decision in Rodriguez 11
abrogates our holding in Harrison, and that the extension of Gomez’s
good‐faith exception to the exclusionary rule applies because the 2
officers reasonably relied on our then‐binding precedent. As to 3
Gomez’s remaining arguments, the district court did not clearly err 4
in concluding that the initial traffic stop was valid and that Gomez 5
consented to the searches. We therefore AFFIRM the judgment of 6
the district court.
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