November 2007, Page 34

Police Interrogation During Traffic Stops: More Questions Than Answers
By Tracey Maclin

One would ordinarily be cautious in criticizing a position taken by two respected federal appellate judges who come from opposite sides of the political spectrum: the liberal Judge Stephen Reinhardt of the Ninth Circuit and the generally conservative Judge Michael McConnell of the Tenth Circuit.1 But both judges have misread two Supreme Court rulings, and in the process, have extended the authority of police officers to arbitrarily interrogate motorists during routine traffic stops. The judges’ interpretation, if not corrected, will undermine Fourth Amendment protections that courts across the nation have uniformly recognized since Terry v. Ohio.2

Traffic stops affect millions of Americans every year. Typically, a vehicle is detained for a routine traffic violation. While processing the driver’s papers, or pending a computer check of outstanding warrants for the motorist or passenger, an officer may question the motorist about the purpose of his trip, destination, the contents of his luggage, or criminal history. Often, police question motorists about matters that have nothing to do with the reason for the stop.3 In one particularly intense interrogation, following a stop for driving five miles per hour over the speed limit, a Florida officer asked the motorist over fifty questions “which had nothing to do with the citation,” including:


Do you have any drugs in the car? When was the last time you used marijuana? Have you ever been arrested for drugs? Has anyone been in your car recently with drugs? Do you object to a search of your car? Do you object to the drug dog walking around your car? Do you have any guns in your car? Have you had any firearms violations?4


In many cases, the officer will ask the driver if there is anything illegal in the car or will inquire about the presence of drugs, guns or large amounts of cash in the vehicle. Inevitably, the motorist denies possessing such items, which then prompts the officer to ask for consent to conduct a search of the vehicle.5 Although this maneuver can be performed rather quickly and typically without prolonging the stop, this tactic serves no purpose relevant to a traffic stop. In many cases the request for a consent search is not based upon a reasonable belief that contraband is inside the vehicle. Instead, this routine is part of a carefully scripted practice designed to exploit the vulnerable status of a motorist enmeshed in a police seizure.6

Prior to February of this year, the Ninth Circuit had ruled that this type of arbitrary interrogation of motorists violated the Fourth Amendment.7 The Ninth Circuit, like a few other circuit courts and several state courts, held that questioning a motorist about matters unrelated to the purpose of the traffic stop was illegal, unless the police had reasonable suspicion for their questions.8 This conclusion was based on the legal principle that the Fourth Amendment limits the scope of a traffic stop in the same way that the amendment, as announced in Terry v. Ohio, restricts police activity during an investigative detention to actions reasonably related to the justification for the detention.9

On February 23, however, the Ninth Circuit reversed course and ruled that the Fourth Amendment does not require that police conducting a routine traffic stop have independent reasonable suspicion to ask questions that are unrelated to the purpose of the stop.10 In United States v. Mendez, the Ninth Circuit joined the Tenth Circuit11 and the Supreme Court of Georgia,12 and now holds that police are free to interrogate a motorist or passenger about any subject, or request consent to search the vehicle without reasonable suspicion, provided the interrogation does not prolong the length of the stop.13 The Ninth Circuit’s reversal on this issue was based on Judge Reinhardt’s reading of two Supreme Court rulings: Illinois v. Caballes14 and Muehler v Mena.15 But Judge Reinhardt’s opinion misreads Caballes and Mena. Specifically, the Supreme Court has not endorsed the position attributed to it by the Ninth and Tenth Circuits and the Supreme Court of Georgia, namely, that Terry’s limitations do not apply to traffic stops, and that police may arbitrarily interrogate motorists about topics unrelated to the reason for the traffic stop.

The Terry Framework
Before explaining why the Ninth Circuit has misread Caballes and Mena, a short summary of why and how Terry’s framework applies to traffic stops is necessary to understand the implications of the Ninth Circuit’s ruling in Mendez. The federal courts are nearly unanimous in the view that traffic stops are a type of investigative detention, and thus, are subject to the restrictions announced in Terry v. Ohio.16 This position is often based on the Court’s dicta in Berkemer v. McCarty, later relied upon in Knowles v. Iowa,17 that a routine traffic stop “is more analogous to a so-called Terry stop … than to a formal arrest.”18 (Interestingly, although most courts adopt the view that traffic stops are a type of investigative detention, the Supreme Court has never decided whether police may initiate a traffic stop without probable cause if there only exists reasonable suspicion of a traffic infraction.)19

Terry announced a two-prong inquiry for assessing the constitutionality of police activity during investigative stops. “In determining whether the seizure and search were unreasonable our inquiry is a dual one — [first] whether the officer’s action was justified at its inception, and [second] whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”20 On the scope of investigative stops, Terry explained that police conduct “must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.”21 When applied to traffic stops, the first prong of the Terry test concerns whether a traffic stop was properly initiated. In other words, was there probable cause or reasonable suspicion to detain the motorist? The second prong — the scope prong — is often the crucial inquiry. As it concerns traffic stops, one might ask whether the scope inquiry concerns only the length of the stop, or does it also encompass the manner or methods of police investigation that occur during the stop?

In cases subsequent to Terry, the Supreme Court has indicated that the scope inquiry concerns both the length and manner of the detention. For example, in United States v. Brignoni-Ponce, the Court explained that when vehicles are stopped for investigative detentions, under Terry’s requirements “the stop and inquiry must be ‘reasonably related in scope to the justification for their initiation.’”22 Similarly, Justice White’s plurality opinion in Florida v. Royer stated: “an investigative detention must be temporary and last no longer than necessary to effectuate the purpose of the stop.”23 Moreover, a majority of the justices in Royer stated that the prosecution bears the burden of establishing that an investigatory stop was “sufficiently limited in scope and duration.”24

Additionally, in United States v. Sharpe, Chief Justice Burger explained that judges should scrutinize investigative detentions to determine “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”25 Finally, in United States v. Hensley, Justice O’Connor stated that the constitutionality of an investigative stop is measured by asking whether the circumstances “justified the length and intrusiveness of the stop and detention that actually occurred.”26 In other words, when determining the reasonableness of a challenged investigative detention, judges have a responsibility to examine both the duration and manner of the stop. Thus, many courts have read Terry’s scope prong to compel consideration of the types of questioning and investigative tools employed by the police during a traffic stop.27

As noted, the Ninth Circuit had previously construed Terry to bar police questioning unrelated to the purpose of a traffic stop.28 In Mendez, however, Judge Reinhardt construed the Court’s rulings in Caballes and Mena as overruling circuit precedent.29 According to Judge Reinhardt, Caballes and Mena now establish that police questioning — even interrogation unrelated to the purpose for the stop — does not constitute a seizure and that police have the discretion to shift the focus of a routine traffic stop into a drug investigation, provided their questions and actions do not prolong the detention.30 Likewise, in a recent Tenth Circuit ruling, United States v. Stewart, Judge McConnell ruled that after Mena “the content of police questions during a lawful detention does not implicate the Fourth Amendment as long as those questions do not prolong the detention.”31 According to Judge McConnell, the proper inquiry “is whether an officer’s traffic stop questions extended the time that a driver was detained, regardless of the questions’ content.”32

Analyzing Caballes And Mena
Judge Reinhardt and Judge McConnell have read Caballes and Mena too broadly. A careful analysis of the Supreme Court’s reasoning in Caballes and Mena reveals that the Court did not intend to give police officers unfettered discretion to interrogate motorists during routine traffic stops. Significantly, Mena did not involve a traffic stop.33 Rather, it concerned whether officers acted unreasonably when they questioned the occupant of a home about her immigration status after she had been lawfully detained during the execution of a search warrant for weapons and evidence of gang membership.34 The Ninth Circuit had ruled that independent suspicion was required for such questioning because it constituted a separate Fourth Amendment event.35 Chief Justice Rehnquist’s majority rejected that reasoning. Relying on Caballes, Rehnquist explained that because Mena’s detention was not prolonged by the questioning, there was no additional seizure under the Fourth Amendment, and thus, no reason to require independent suspicion to question Mena about her immigration status.36

Because the result in Mena relied upon Caballes, a more detailed analysis of Caballes is necessary to understand the Court’s reasoning in both cases. Caballes was a 5-4 decision, where Justice Stevens’ majority opinion described the issue confronting the Court as a “narrow” one, namely, “[w]hether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.”37 Unlike Mena, Caballes did involve a traffic stop. Caballes was stopped for speeding. While one officer wrote a warning ticket for Caballes, a second officer walked a drug-detection dog around the vehicle. After the dog “alerted”(i.e., indicated that it smelled drugs), a search of the trunk revealed marijuana. The Illinois Supreme Court, relying on Terry, ruled that the use of the dog “unjustifiably enlarge[d] the scope of a routine traffic stop into a drug investigation.”38 Justice Stevens’ opinion reversed this result. Without mentioning Terry and without citing or discussing any of the Court’s post-Terry rulings that placed temporal and scope restrictions on investigative detentions, Justice Stevens concluded that the use of a drug-detection canine in these circumstances did not require reasonable suspicion of criminality.39

Justice Stevens’ analysis made the following key points. First, he noted that a lawful detention “can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.”40 Second, he observed that a detention “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.”41 On this point, Stevens accepted the state trial court’s determination that the duration of Caballes’ stop was justified by the traffic offense and the ordinary inquiries incident to such a stop. Third, Justice Stevens rejected the state supreme court’s conclusion that the use of a drug-detection dog had unreasonably altered the purpose or character of the traffic stop. Justice Stevens noted that “conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed Caballes’ constitutionally protected interest in privacy.”42 Finally, Justice Stevens explained that the Court’s precedent plainly established that a dog sniff does not implicate any interests protected by the Fourth Amendment.43

There are several reasons why the result and reasoning in Caballes does not lead to the conclusion reached by the Ninth and Tenth Circuits, namely, that police have unfettered discretion to question motorists about subjects unrelated to the purpose for a traffic stop, so long as such questioning does not prolong the length of the stop. First, and most importantly, Caballes is simply a case about dog sniffs. As noted, Justice Stevens described the issue addressed by the Court as a “narrow” one, namely, whether the police needed reasonable suspicion to utilize a drug-detection dog to sniff Caballes’ vehicle during this traffic stop. To be sure, Caballes might be read as standing for the proposition that only conduct that constitutes a search or seizure under the Fourth Amendment can qualify as investigative activity that triggers the scope prong of Terry. But Justice Stevens never says that only a separate “search” or new “seizure” triggers Terry’s scope prong.

Moreover, reading Caballes as a command that federal judges focus solely on the length of traffic stops, and as eliminating scrutiny of police questioning unrelated to the purpose of the stop, is contrary to the text of Justice Stevens’ opinion. After all, Justice Stevens plainly states that a lawful stop “can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.”44 This language contemplates consideration of the scope and intrusiveness of the police conduct during an investigative stop. Significantly, in the next sentence, Stevens focuses on temporal concerns. There, he asserts that a traffic stop “can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”45 Therefore, reading Caballes to narrow or eliminate the scope prong of Terry as it applies to traffic stops requires not only ignoring the plain language of Justice Stevens’ opinion, it also requires overlooking the fact that the Court saw the issue it was deciding as a “narrow” one.46

Further, reading Caballes and Mena the way Judges Reinhardt and McConnell read those rulings means ignoring the fact that in both cases the Supreme Court never addressed, let alone approved, the proposition that police may, consistent with Terry and its progeny, arbitrarily interrogate motorists about topics unrelated to a traffic stop. Put simply, Judge Reinhardt has read too much into the logic of Caballes. Caballes is simply about dog sniffs. The Court has always treated dog sniffs as a special or unique type of investigatory technique.47 Indeed, the Court has given law enforcement officials a long leash when it comes to canine sniffs and the Fourth Amendment. In the Court’s first canine sniff case, United States v. Place, Justice O’Connor described the canine sniff as a sui generis investigative procedure, and thus, immune from Fourth Amendment scrutiny.48 Caballes is best read as following this tradition. A canine sniff is a unique type of investigative procedure that does not trigger Fourth Amendment protection because no privacy interests are infringed by the sniff.49

Second, while Caballes exempts canine sniffs from constitutional scrutiny, that ruling provides no indication or hint (as Judge Reinhardt acknowledged)50 that the Court also intended to exempt arbitrary police questioning from constitutional scrutiny under Terry’s scope prong. Indeed, in the Term prior to Caballes, the Court indicated that Terry’s scope prong was still an important yardstick in measuring the validity of police questioning during an investigative detention — even when the challenged police questioning is as trivial as asking an individual to identify himself.51 In Hiibel v. Sixth Judicial District Court, the Court upheld a law that permitted police to arrest an individual for refusing to identify himself during a lawful Terry stop.52 The Court upheld the statute, but only after explaining that “the request for identification was ‘reasonably related in scope to the circumstances which justified’ the stop.”53

Third, the fact that police questioning by itself does not constitute a seizure within the meaning of the Fourth Amendment is unimportant when deciding whether a traffic stop has been executed in an unreasonable manner. Concededly, Mena emphasized that mere questioning does not constitute a seizure.54 And one could argue that because arbitrary questioning during a traffic stop constitutes neither a “search” nor a “seizure,” a detained motorist has no constitutionally protected interest against this type of police conduct. This analysis, however, ignores the constitutional rule that even lawful intrusions can be unreasonably exacerbated by police conduct that may not be either a search or seizure and does not prolong a legitimate police seizure, but is nonetheless unrelated or unnecessary to the accomplishment of the lawful intrusion.55

For example, in Wilson v. Layne,56 police officers, while executing an arrest warrant in a private home, invited members of the press to accompany them. The Court ruled that this action violated the Fourth Amendment because “the presence of the reporters inside the home was not related to the objectives of the authorized intrusion.”57 The result in Wilson did not depend on a finding that the presence of reporters constituted a separate search or seizure apart from the initial intrusion. Indeed, the reasoning of Wilson demonstrates that the absence of a separate search or seizure does not mean that arbitrary interrogation of a detained motorist is without constitutional significance.58 What matters in the traffic stop context is not whether arbitrary interrogation, by itself, constitutes a search or seizure. Instead, the crucial inquiry is whether such interrogation is “related to the objectives of the authorized intrusion.”59 Otherwise, police officers would be free not only to interrogate motorists about matters unrelated to the traffic stop, they could also fingerprint motorists (if time permits or a second officer is available to obtain the prints), since fingerprinting is neither a search nor a seizure under the Fourth Amendment.60

Therefore, the fact that an officer is able to ask questions about a motorist’s destination, employment status, arrest record or recent whereabouts, or is able to request consent to search the vehicle without prolonging the traffic stop does not transform arbitrary questioning into reasonable questioning. Like the media ride-along in Wilson, this type of arbitrary interrogation is unrelated to the purpose of the lawful intrusion, and thus, exacerbates the intrusiveness of the motorist’s detention. Even when it does not prolong a traffic stop, arbitrary interrogation about subjects unrelated to the traffic stop is unreasonable because it has no connection to the purpose for the stop.61 Put simply, Fourth Amendment rights are normally measured in qualitative and not quantitative terms.62

‘No Prolongation’ Rule
Finally, there is an important practical reason why Caballes should not be read to provide police unchecked discretion to question motorists about matters unrelated to a traffic stop. A “no prolongation” rule is a rule without standards. According to Judge Reinhardt, the Fourth Amendment permits arbitrary interrogation provided questioning does not prolong the stop.63 Implicit in this rule is the notion that the average, lawful traffic stop has a fixed temporal limit, which an officer cannot exceed. Unfortunately, neither Judge Reinhardt nor any other judge has identified such a time limit. Indeed, there is no constitutional time boundary for traffic stops. Nor is there, practically speaking, a “set formula for measuring in the abstract what should be the reasonable duration of a traffic stop.”64 Furthermore, although the issue has never been raised in the context of a traffic stop, the Court has twice rejected efforts to establish fixed time limitations for investigative detentions involving Terry stops.65 If there is no discernible timeline beyond which a traffic stop may not extend, how will judges know when an officer has prolonged a traffic stop by arbitrarily questioning a motorist about subjects unrelated to the stop?

The inherent flaw in a “no prolongation” rule was identified in the analysis of one judge: “How is it possible to determine what amount of time would have been ‘reasonably necessary’ for an officer to discharge the duties he or she had with respect to the traffic infraction itself? . . . [A “no prolongation” rule] requires the officer and the judge to determine the duration of a past event which never occurred, i.e., the length of time the traffic detention would reasonably have required if the officer had not [subjected the motorist to arbitrary questioning].”66 And even when judges endeavor to identify other factors that signal the end of a traffic stop, for example, an officer’s issuance of a citation and return of a motorist’s driving documents, as a way to enforce a “no prolongation” rule, “[a] clever officer could always ward off the foreclosing effect of [such a rule] by deliberately delaying his final termination of the traffic stop.”67 Moreover, as one dissenting justice of the Supreme Court of Georgia noted, because the types of interrogation that officers employ during traffic stops seldom require more than a few seconds, and because the opportunities to extend the time for a traffic stop are seemingly endless, the result of a “no prolongation” rule is carte blanche authority to interrogate any motorist or passenger for any purpose whether related to the scope of the initial traffic stop or not.68

Nor have courts that have adopted a “no prolongation” rule shown any inclination to put limits on the type of investigative techniques or procedures police may employ during a routine traffic stop as a way of enforcing the rule. For example, in addition to verifying a motorist’s driver’s license and vehicle registration, it is routine practice in some places for an officer to run a check for any outstanding arrest warrants.69 A warrant check will be performed without a reason to believe that such a warrant exists or that the motorist is currently or has in the past engaged in criminality. Because the warrant check does not have to be justified on any factual basis, the decision to perform the check will turn on the standardless discretion of the officer. If police have discretion to conduct a warrant check, why shouldn’t they be free to perform a criminal history check of a motorist or passenger? As the Eleventh Circuit stated in United States v. Purcell, “so long as the computer check does not prolong the traffic stop beyond a reasonable amount of time under the circumstances of the stop, the inclusion of a request for criminal histories does not constitute a Fourth Amendment violation.”70 Of course, this reasoning begs the question of what is a “reasonable amount of time” for a traffic stop.

Also, consider the implications for judges if Terry’s scope inquiry is eliminated in favor of a rule that says police questioning should not “unreasonably” prolong the traffic stop, which is the rule adopted by the Seventh Circuit’s en banc opinion in United States v. Childs.71 As Professor Wayne LaFave cogently observed: “Once the rather very clear Terry limit, tied to those activities defensible in terms of responding to the traffic infraction, is abandoned, there remains no other basis for making a judgment about the legal parameters of a ‘routine traffic stop’ — unless it is simply a matter of applying the ‘horseshoes rule,’ i.e., that just being close counts.”72

The bulk of arbitrary police interrogation is borne by innocent motorists who will most often allow police to search their vehicles due to fear or ignorance of their constitutional rights, despite such questioning leading to the occasional arrest of a criminal. More importantly, arbitrary questioning of motorists violates the Fourth Amendment command that an investigative intrusion “must be ‘strictly tied to and justified by’ the circumstances which render its initiation permissible.”73 Thus, the Ninth Circuit ruling in Mendez and similar decisions by other jurisdictions deplete Fourth Amendment protections that have been upheld for nearly four decades, posing a grave risk of abuse to every traveler who is subject to a routine traffic stop.

Notes
1. See Anthony Lewis, The Rest is Silence, N.Y. Times, Nov. 11, 1996, at A15 (noting that Judge Reinhardt is usually characterized as liberal); David D. Kirkpatrick, Despite Recent Gains, Conservative Group is Wary on Direction of Court, N.Y. Times, Nov. 11, 2005, at A1 (describing Judge McConnell as a potential conservative nominee to the Supreme Court).
2. Terry v. Ohio, 392 U.S. 1 (1968).
3. See Powell v. Texas, 5 S.W.3d 369, 374 (Tex. Ct. App. 1999), cert. denied, 529 U.S. 1116 (2000) (after stopping motorist for failure to drive in a single lane, officer questioned driver and passengers about identities, place of employment, destination and purpose of the trip, and whether any of the motorists had ever been arrested).
4. Maxwell v. State, 785 So. 2d 1277, 1279 (Fla. Dist. Ct. App. 2001); see also United States v. Guzman, 864 F. 2d 1512 (10th Cir. 1988) (defendant and his wife were stopped because officer suspected defendant was not wearing a seat belt; after determining that defendant was properly driving the vehicle, officer questioned motorist about his destination, whether his wife was employed, when the couple were married and whether they were carrying any large sums of money).
5. See, e.g., State v. Kremen, 754 A.2d 964, 967 (Me. 2000) (rejecting defendant’s argument that the officer’s request for permission to search the vehicle was not reasonably related to the purpose for the stop; a request for permission to search a car, without more, is not a Fourth Amendment violation), cert. denied, 531 U.S. 1079 (2001).
6. See, e.g., Gary Webb, DWB, Esquire 118, 125, April 1999 (describing routine often taught to officers to obtain a motorist’s consent to search); Bo Poertner, Tapes Show Rights Given Up Readily, Orlando Sentinel, Aug. 13, 1994 (reporting on videotapes of searches of motorists conducted by Volusia County, Fla., sheriff deputies); Ohio v. Retherford, 639 N.E. 2d 498, 503 (Ohio Ct. App. 1994) (observing that “it has become clear to us that some police agencies in Ohio are instructing their officers to routinely ask for the consent of individuals stopped for traffic violations to search their vehicles and its contents for drugs, weapons, or large sums of money, even when the officer has little or no suspicion that the occupants of the vehicle are engaged in criminal activity whatsoever, or that the vehicle itself contains any contraband”) (footnote omitted).
7. See United States v. Murillo, 255 F.3d 1169, 1174 (9th Cir. 2001) (police officer may only “ask questions that are reasonably related in scope to the justification for his initiation of contact” and may expand the scope of questioning only if he “articulate[s] suspicious factors that are particularized and objective”); see also United States v. Chavez-Valenzuela, 268 F.3d 719, 724 (9th Cir. 2001); United States v. Perez, 37 F.3d 510, 513 (9th Cir. 1994).
8. See, e.g., United States v. Henderson, 463 F.3d 27, 45-47 (1st Cir. 2006) (“The scope and duration of a vehicle stop must be reasonably related to the circumstances that justified the stop in the first place, unless the police have a basis to expand their investigation.”); United States v. Tousel, 409 F. Supp. 2d 511, 520 (D. Vt. 2006) (Officer had reasonable suspicion because of suspect’s conflicting answers about intended destination; thus, officer could expand the scope of questioning); United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003) (“After a traffic stop that was justified at its inception, an officer who develops a reasonable, articulable suspicion of criminal activity may expand the scope of an inquiry beyond the reason for the stop and detain the vehicle and its occupants for further investigation.”); United States v. Jackson, 280 F.3d 403, 405 (4th Cir. 2002) (Although police questioning about the presence of guns in the van exceeded the scope of the initial stop, police officer had reasonable suspicion because of the smell of marijuana coming from the van); United States v. Coley, 974 F. Supp. 41, 43-44 (D.D.C. 1997) (Officer may ask a moderate number of questions to determine suspect’s identity and to try to obtain information confirming or dispelling the officer’s [reasonable] suspicions. Because officer in this case had no reason to believe that defendant had committed a crime, questions about drugs and weapons went beyond effort to confirm suspicions); State v. Askerooth, 681 N.W.2d 353 (Minn. 2004); State v. Genre, 712 N.W.2d 624 (N.D. 2006); State v. Duran, 120 P.3d 836 (N.M. 2005); State v. Cox, 171 S.W.3d 174 (Tenn. 2005); State v. Malone, 683 N.W.2d 1 (Wis. 2004).
9. 4 Wayne R. LaFave, Search and Seizure §9.3 at 39 (4th ed. Supp. 2007) (noting that lower court rulings are “grounded in the straightforward proposition that the temporal and scope limitations adopted in Terry and its progeny are equally applicable to traffic stops”).
10. United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007).
11. United States v. Stewart, 473 F.3d 1265 (10th Cir. 2007).
12. Salmeron v. State, 632 S.E.2d 645 (Ga. 2006).
13. Even before the decisions in the Ninth and Tenth Circuits and the Supreme Court of Georgia, other circuit courts held that officers may question motorists about matters unrelated to the purpose of the traffic stop. See United States v. Muriel, 418 F.3d 720, 725-26 (7th Cir. 2005); United States v. Hernandez, 418 F.3d 1206, 1209 n.3 (11th Cir. 2005); United States v. Slater, 411 F.3d 1003, 1005 (8th Cir. 2005). As in Mendez, these courts based their holdings on the Supreme Court’s rulings in Illinois v. Caballes, 543 U.S. 405 (2005) and Muehler v. Mena, 544 U.S. 93 (2005).
14. 543 U.S. 405 (2005).
15. 544 U.S. 93 (2005).
16. But see United States v. Childs, 277 F.3d 947, 953 (7th Cir. 2002), cert. denied 546 U.S. 846 (2005) (noting that although traffic stops usually proceed like Terry stops, traffic stops supported by probable cause are arrests and thus are not bound by Terry’s limitations).
17. 525 U.S. 113, 117 (1998).
18. 468 U.S. 420, 439 (1984).
19. See Wayne R. LaFave, The “Routine Traffic Stop” from Start to Finish: Too Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1850 (2004). Professor LaFave’s article is by far and away the best discussion on the law of traffic stops.
20. 392 U.S. at 19-20.
21. Id. at 19 (citations omitted).
22. 422 U.S. 873, 881 (1975) (citing Terry, 392 U.S. at 29). The continuing validity of this language from Brignoni-Ponce was undercut in Mena when Chief Justice Rehnquist explained that the Brignoni-Ponce Court did not intend to create a requirement of reasonable suspicion before Border Patrol officers could inquire about a motorist’s citizenship status. Mena, 544 U.S. at 101, n.3.
23. 460 U.S. 491, 500 (1993) (plurality opinion).
24. Id. (emphasis added).
25. 470 U.S. 675, 686 (1985) (citations omitted).
26. 469 U.S. 221, 235 (1985) (emphasis added).
27. See LaFave, supra note 19, at 1862-93; see also Tracey Maclin, The Fourth Amendment on the Freeway, 3 Rutgers Race & L. Rev. 117, 164-88 (2001).
28. See supra note 7.
29. Mendez, 476 F.3d at 1080.
30. Id.
31. Stewart, 473 F.3d at 1269.
32. Id.
33. But see Hernandez, 418 F.3d at 1209 n.3 (ruling that the “focus on duration [during an investigative search] (and not [on the] scope of questioning) is just as applicable to a lawful traffic stop”).
34. Mena, 544 U.S. at 95.
35. Id. at 97.
36. Id. at 101.
37. Caballes, 543 U.S. at 407.
38. Id. at 407 (quoting People v. Caballes, 802 N.E.2d 202, 205 (Ill. 2003)).
39. Caballes, 543 U.S. at 409.
40. Id. at 407
41. Id.
42. Id. at 408.
43. Id. at 408-09.
44. Id. at 407 (emphasis added).
45. Id. (emphasis added).
46. Moreover, unless his views have changed, the dissent by Justice Stevens in Ohio v. Robinette, 519 U.S. 33 (1996), strongly suggests that he believes that Terry’s scope inquiry does apply to police questioning during routine traffic stops. In Robinette, Justice Stevens cited Royer and Brignoni-Ponce for the rules that investigative detentions must be temporary and last no longer than necessary to satisfy the purpose of the stop, and that an officer’s inquiry during an investigative stop must be reasonably related in scope to the justification for the stop. Id. at 50, n.8.
47. See, e.g., United States v. Place, 462 U.S. 696, 707 (1983); Indianapolis v. Edmond, 531 U.S. 32, 40 (2000).
48. Place, 462 U.S. at 707.
49. Caballes, 543 U.S. at 409.
50. Mendez, 476 F.3d at 1080.
51. Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004).
52. Id. at 188.
53. Id. at 188-89 (quoting Terry, 392 U.S. at 20).
54. Mena, 544 U.S. at 101.
55. See LaFave, supra note 9, at 40 (explaining that “the Supreme Court has time and again pursued a scope inquiry as to challenged Terry-like stops even when the questioned investigative activity was not a search”).
56. 526 U.S. 603 (1999).
57. Id. at 611.
58. See Lauro v. Charles, 219 F.3d 202, 210 n.6 (2d Cir. 2000) (noting that the Wilson Court did not find that the photographing of the homeowners was without constitutional significance; the Court “simply did not consider that question”).
59. Wilson, 526 U.S. at 611.
60. See Hayes v. Florida, 470 U.S. 811 (1985) (noting, in dicta, that the Fourth Amendment would permit officers to fingerprint a suspect during a Terry stop if there was reasonable suspicion that the suspect has committed a criminal act or if there was a reasonable basis to believe that fingerprinting will act to establish or negate the suspect’s connection with the crime, and the procedure is carried out with dispatch).
61. See Royer, 460 U.S. at 500 (plurality opinion) (“The scope of the detention must be carefully tailored to its underlying justification.”); see also Terry, 392 U.S. at 20 (explaining that investigative search or seizure must be “reasonably related in scope to the circumstances which justified the inference in the first place”).
62. See, e.g., Arizona v. Hicks, 480 U.S. 321, 325 (1987) (finding that even though officer’s moving of furniture a few inches inside defendant’s home did not prolong the initial justification for police entry, the officer’s act was “unrelated to the objectives of the authorized intrusion” and thus violated the Fourth Amendment).
63. Mendez, 476 F.3d at 1080-81.
64. Charity v. Maryland, 753 A.2d 556, 566 (Md. App. 2000); see also Byndloss v. State, 873 A.2d 1233 (Md. App. 2005) (“Rigid time limitations on traffic stops have been expressly rejected by the Supreme Court.”) (citing Sharpe, 470 U.S. at 685); Maryland v. Wilson, 519 U.S. 408, 422 (1997) (Kennedy, J., dissenting) (noting that “[t]raffic stops, even for minor violations, can take upwards of 30 minutes”).
65. See Sharpe, 470 U.S. at 686 (acknowledging Place and favorably quoting it for the proposition that the Court will not adopt a “hard-and-fast” time limit for a valid Terry stop); Place, 462 U.S. at 709 (questioning the “wisdom of a rigid time limitation”).
66. California v. McGaughran, 601 P.2d 207, 216-17 (Cal. 1979) (en banc) (Bird, C.J., concurring and dissenting).
67. Charity, 753 A.2d at 565-66.
68. Salmeron, 632 S.E.2d at 648 (Sears, C.J., dissenting).
69. See, e.g., McGaughran, 601 P.2d at 211 (“If a warrant check can be completed within that same period, no reason appears to hold it improper: because it would not add to the delay already lawfully experienced by the offender as a result of his violation, it would not represent any further intrusion on his rights.”).
70. United States v. Purcell, 236 F.3d 1274, 1278-79 (11th Cir. 2001).
71. Childs, 277 F.3d at 947.
72. LaFave, supra note 19, at 1871.
73. Terry, 392 U.S. at 19 (citations omitted). n


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