United States v. $85, 688.00 in United States Currency, 082814 FED10, 13-4067

Docket Nº:13-4067
Opinion Judge:PER CURIAM
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. $85, 688.00 IN UNITED STATES CURRENCY, Defendant, ANDREW C. WILEY, Claimant-Appellant.
Judge Panel:Before BRISCOE, Chief Judge, EBEL and PHILLIPS, Circuit Judges. EBEL, J., concurring in the judgment. PHILLIPS, J., concurring in the judgment. BRISCOE, Chief Judge, dissenting.
Case Date:August 28, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

$85, 688.00 IN UNITED STATES CURRENCY, Defendant,

ANDREW C. WILEY, Claimant-Appellant.

No. 13-4067

United States Court of Appeals, Tenth Circuit

August 28, 2014

(D.C. No. 2:09-CV-00029-DS) (D. Utah).

Before BRISCOE, Chief Judge, EBEL and PHILLIPS, Circuit Judges.

ORDER AND JUDGMENT[*]

PER CURIAM

At the end of a Utah traffic stop, a state trooper detained Andrew Wiley so that a drug dog could sniff around Wiley's truck. After the dog alerted, troopers searched Wiley's truck and seized from it $85, 6681 and a small amount of marijuana. Although Wiley was never charged with a federal crime, the government filed a forfeiture complaint against the currency. As part of the forfeiture-in-rem proceeding, Wiley filed a motion to suppress, challenging the reasonableness of his detention preceding the search of his truck. After a hearing, the district court denied the motion to suppress.

On appeal, all panel members agree that the initial stop was justified at its inception. But Judge Phillips and Judge Ebel both vote to reverse the district court's order denying suppression. Judge Phillips reasons that reasonable suspicion of any registration offenses (expired, fake, or stolen license plates or registration tabs) dissipated when the trooper learned or should have learned that the State of Missouri had issued the plate and its registration tab within two weeks of the traffic stop; and that any reasonable suspicion that Wiley's truck was stolen dissipated when Wiley handed the trooper his "original motor vehicle title receipt." Although Judge Phillips agrees with Chief Judge Briscoe that the trooper had reasonable suspicion of illegal drug activity by the end of the stop, Judge Phillips reasons that the government cannot rely on the key facts suggesting illegal drug activity because the trooper learned those facts after Wiley was entitled to be released. Judge Ebel reasons that reasonable suspicion continued up to the point that the trooper returned Wiley's driving documents and told Wiley he was free to leave. But Judge Ebel reasons that the trooper lacked reasonable suspicion of illegal drug activity before continuing to detain Wiley in order to deploy the drug dog. Chief Judge Briscoe dissents, reasoning that the trooper had reasonable suspicion of a registration-related offense up until he returned Wiley's driving documents and further that by then he had a separate reasonable suspicion of illegal drug activity. Accordingly, because two judges vote to suppress the evidence seized from the truck, we REVERSE the district court's order denying suppression and REMAND for further proceedings.2

EBEL, J., concurring in the judgment.

This case turns on whether an officer conducting a traffic stop maintained a reasonable suspicion of criminal activity throughout his investigation of a cooperative, yet objecting, citizen. Chief Judge Briscoe believes such justification existed throughout the stop and interrogation here, and she would therefore affirm the district court's denial of Wiley's suppression motion. Dissenting Op. at 1, 4, 9, 18-19.

While Judge Phillips and I agree that the prolonged detention violated Wiley's Fourth Amendment rights, we disagree about when the encounter became unjustified and, thus, unconstitutional. Judge Phillips concludes that Trooper Neff lacked reasonable suspicion to continue to detain Wiley after Trooper Neff should have concluded that Wiley's truck was lawfully registered in Missouri—something Judge Phillips believes should have happened well before Trooper Neff observed any of the factors that the government now contends authorized prolonging the detention for a dog sniff. Judge Phillips would thus reverse without needing to determine whether Trooper Neff's continued investigation gave him reasonable suspicion that Wiley was trafficking drugs. Phillips Op. at 8 n.5. I believe, on the contrary, that Trooper Neff had sufficient cause to detain and question Wiley up to, but not after, the point he returned Wiley's driving documents and told him that he could be on his way. In my opinion, therefore, only the evidence obtained against Wiley from that point on must be suppressed.

Thus, although Judge Phillips and I reach the same conclusion—that the evidence against Wiley must be suppressed—I write separately.

I.

I agree with Chief Judge Briscoe that Trooper Neff possessed reasonable suspicion to detain Wiley in his patrol car for sixteen minutes while he investigated a possible registration violation. We all agree that the "not on file" response to Trooper Neff's registration inquiry justified the initial traffic stop. See United States v. Esquivel-Rios, 725 F.3d 1231, 1235 (10th Cir. 2013). The question, then, is whether the Fourth Amendment affords Trooper Neff the leeway to confirm or deny his registration suspicions as he did. I believe it does.

Although I doubt that a more vigilant inspection of Wiley's license plate and apparently valid tags would have adequately dispelled a reasonable officer's suspicions, because it seems unlikely that further roadside investigation was capable of reconciling the inconclusive information relayed by the computerized records search, we need not resolve that issue in this case because no such inspection occurred here, and the Fourth Amendment did not mandate such an inspection. Judge Phillips concludes otherwise, pointing to the statement in Florida v. Royer, 460 U.S. 491, 500 (1983), that "the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Phillips Op. at 10. As the Supreme Court has made clear, however, "[t]hat statement . . . was directed at the length of the investigative stop, not at whether the police had a less intrusive means to verify their suspicions before stopping Royer. The reasonableness of the officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques." United States v. Sokolow, 490 U.S. 1, 11 (1989) (emphasis added) ("Such a rule would unduly hamper the police's ability to make swift, on-the-spot decisions . . . and it would require courts to indulge in unrealistic second-guessing." (internal citations omitted)); see also Navarette v. California, 134 S.Ct. 1683, 1691 (2014) (reaffirming the same). I believe that rule adequately protects Trooper Neff's decision to question Wiley rather than to inspect closely his license plate. See United States v. Rodriguez, 739 F.3d 481, 489 (10th Cir. 2013).1

In other words, once Trooper Neff received a "not on file" return from the computerized records search, it was reasonable for him to initiate a stop, approach Wiley, and investigate orally his suspicion that Wiley was violating Utah registration laws.2 It was therefore reasonable for Trooper Neff to request Wiley's driver's license and registration, have dispatch run computer checks on those materials, and issue any citations or warnings as appropriate. See United States v. Kitchell, 653 F.3d 1206, 1217 (10th Cir. 2011). While he waited for dispatch to run the requisite computer checks, moreover, it was likewise reasonable for Trooper Neff to inquire about Wiley's travel plans, see United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001), arrest record, see United States v. McRae, 81 F.3d 1528, 1536 n. 6 (10th Cir. 1996), recent truck purchase, see United States v. Ludlow, 992 F.2d 260, 265 (10th Cir. 1993), and almost anything else, "whether or not related to the purpose of [the] traffic stop, " so long as the questions "d[id] not excessively prolong the stop, " Kitchell, 653 F.3d at 1217. And it was perfectly reasonable for Trooper Neff to ask Wiley to sit in the front seat of his patrol car while he investigated all of the above. See United States v. Speal, 166 F.3d 350 (10th Cir. 1998) (unpublished). Finally, and maybe most importantly, it was not unreasonable for Trooper Neff to detain Wiley for a mere sixteen minutes before he completed that registration investigation. See Williams, 271 F.3d at 1271.

In light of these well-settled rules, therefore, I do not believe Trooper Neff's registration investigation violated the Fourth Amendment.

II.

Although there was nothing unreasonable about the way Trooper Neff investigated the possible registration violation, that is not the end of the inquiry because, as even Trooper Neff conceded, it soon became clear that the suspicions justifying the stop had dissipated. See Aplt. App. at 135-36 ("I didn't have a violation. I believed the vehicle belonged to him and he had the proper paperwork, and I'm not going to write a ticket for nothing."). While that realization did not vitiate the lawfulness of the stop, it did require Trooper Neff to release Wiley at that time unless he had acquired "a new and independent" basis for reasonably suspecting that Wiley was engaged in criminal activity. See United States v. Winder, 557 F.3d 1129, 1135 (10th Cir. 2009); accord United States v. Soto-Cervantes, 138 F.3d 1319, 1322 (10th Cir. 1998) ("Once the concern that justified the initial stop is dispelled, further detention will violate the Fourth Amendment unless the additional detention is supported by a reasonable suspicion of criminal activity."). No one disagrees that Trooper Neff failed to release Wiley, or that Wiley refused to consent to his further detention. As such, the dispositive question is whether Trooper Neff's sixteen-minute registration investigation yielded the additional reasonable suspicion necessary to extend the traffic stop beyond its initial purpose.

The district court held that it did, concluding that the totality of the circumstances led Trooper Neff to reasonably suspect that Wiley was trafficking drugs. According to the district court, Wiley's travel plans and the "lived-in" look of his truck combined with his...

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