CA11: Questions unrelated to the stop unreasonably extended it, but it complied with law at time, so GFE applies

The officer’s questions here about what was in the car were unnecessary and unreasonably added 25 seconds to the stop. They were, however, before Rodriguez was decided [but what about Caballes?] and complied with the law in effect at the time. Therefore, the good faith exception applies. United States v. Campbell, 912 F.3d 1340 (11th Cir. 2019), cert. den. 140 S. Ct. 196, 205 L. Ed. 2d 100 (2019), is vacated and this substituted opinion is filed: United States v. Campbell, 2020 U.S. App. LEXIS 25844 (11th Cir. Aug. 14, 2020):

Generally, questions about travel plans are ordinary inquiries incident to a traffic stop. See United States v. Dion, 859 F.3d 114, 125 (1st Cir. 2017) (“[O]ur case law allows an officer carrying out a routine traffic stop … to inquire into the driver’s itinerary.”), cert. denied, 138 S. Ct. 346, 199 L. Ed. 2d 231 (2017); United States v. Bowman, 660 F.3d 338, 343 (8th Cir. 2011) (stating that tasks related to a traffic violation include “inquiring about the occupants’ destination, route, and purpose”); United States v. Brigham, 382 F.3d 500, 508 (5th Cir. 2009) (en banc) (“An officer may also ask about the purpose and itinerary of a driver’s trip during the traffic stop.”); United States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003) (“[Q]uestions relating to a driver’s travel plans ordinarily fall within the scope of a traffic stop.”); United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001) (“[W]e have repeatedly held (as have other circuits) that questions relating to a driver’s travel plans ordinarily fall within the scope of a traffic stop.”).

More specifically, in this case, Campbell’s travel plans were relevant to the traffic violation—a malfunctioning turn signal. In McCannon’s experience, a rapidly blinking turn signal indicates that a bulb is either out or is about to go out. Since Campbell was traveling for a long distance, the chances that his turn signal would stop working while he was driving increased accordingly. For this reason, asking about Campbell’s travel plans was a related and prudent part of investigating his malfunctioning turn signal.

Campbell also argues that the questions about whether he had contraband in his car unlawfully prolonged the stop. Just before asking for Campbell’s consent to search the car, McCannon queried:

“[Do you have] any counterfeit merchandise that you are taking to your relatives over there in Augusta? And what I mean by that is–any purses? Shoes? Shirts? Any counterfeit or bootleg CDs or DVDs or anything like that? Any illegal alcohol? Any marijuana? Any cocaine? Methamphetamine? Any heroin? Any ecstasy? Nothing like that? You don’t have any dead bodies in your car?”

These questions were not related to a traffic stop for a malfunctioning turn signal and allegedly crossing the fog line. These questions were inquiring about “crime in general [and] drug trafficking in particular.” See Rodriguez, 135 S. Ct. at 1616. They added 25 seconds to the stop. And the Government does not contend that McCannon had reasonable suspicion. Consequently, we find that these questions unlawfully prolonged the stop.

C.

Normally, if an officer unlawfully prolongs a stop, any evidence uncovered as a result would be suppressed. See Davis, 564 U.S. at 231-32, 131 S. Ct. at 2423. But the exclusionary rule is subject to exceptions. Id. at 236-38, 131 S. Ct. at 2426-27.

Davis excepts from the exclusionary rule evidence the police obtain in searches conducted “in objectively reasonable reliance on binding appellate precedent[.]” Id. at 232, 131 S. Ct. at 2423-24. This is because the “sole purpose” of the exclusionary rule is to deter Fourth Amendment violations, id. at 236, 131 S. Ct. at 2426, and suppressing evidence obtained from a search that was lawful when conducted would “do nothing to deter” police wrongdoing while coming “at a high cost to both the truth and the public safety,” id. at 232, 131 S. Ct. at 2423.

At the time of Campbell’s arrest, Griffin was our last word on the issue and the closest precedent on point. Griffin, 696 F.3d 1354. As noted above, Griffin held that an officer’s unrelated questioning lasting no more than 30 seconds did not unconstitutionally prolong the stop because the officer “had not yet completed his investigation … and because he acted diligently[.]” Id. at 1362.

The facts here fit squarely within Griffin’s parameters. McCannon lawfully stopped Campbell to investigate a traffic violation. His unrelated questions lasted 25 seconds. He asked them before he had completed the stop by issuing the warning ticket. And the District Court found that McCannon “diligently investigated” the traffic violations and “expeditiously” completed the citations. We cannot say the District Court clearly erred in so finding. As such, Griffin controls, and McCannon acted in “objectively reasonable reliance on binding appellate precedent[.]” Davis, 564 U.S. at 232, 131 S. Ct. at 2423-24.

However, the Government did not raise the good faith exception on appeal. Typically, when an appellee waives or abandons an affirmative defense, we will not consider it. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318-19 (11th Cir. 2012). But waiver is a prudential doctrine, not a jurisdictional limitation, and we can reach a waived issue in “exceptional circumstances” at our discretion. See Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360 (11th Cir. 1984). Here, even though the Government did not present the issue on appeal, both parties submitted briefs on whether the good faith exception applied to the District Court. Furthermore, the applicability of the exception to this case is plain—Griffin is on all fours with this case—and ignoring it would be a miscarriage of justice. The exclusionary rule is meant to deter unlawful conduct by the police; punishing law enforcement for following the law at the time does not do this. If we ignored the good faith exception, we would be suppressing the truth to no end other than teaching the Government’s counsel a well-deserved lesson. We decline to do so.

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