CA8 denies en banc 9-2 on a Rodriguez issue

The Eighth Circuit denies rehearing en banc in a Rodriguez case [remember Rodriguez came from the Eighth Circuit] with two dissenters: United States v. Puckett, 2025 U.S. App. LEXIS 19064 (8th Cir. July 29, 2025), Grasz with Kelly dissenting:

In my view, the panel’s formulation of the standard in this case for determining whether an officer impermissibly prolonged a traffic stop nevertheless allows for de minimis extensions caused by unrelated criminal investigations. This cannot be reconciled with our prior statements in Sanchez and Callison or, more importantly, with the Supreme Court’s clearly-stated test in Rodriguez. According to the panel opinion, Trooper Rorie’s questioning passed constitutional muster because he “had not completed his traffic-stop related duties when he requested consent to search.” United States v. Puckett, 139 F.4th 730, 739 (8th Cir. 2025). Expanding on this concept, the opinion notes Trooper Rorie had not yet issued a citation, and his twenty seconds of questioning was “within the reasonable period of the traffic stop’s original purpose,” and “did not impermissibly prolong it.” Id. at 738-39. As I see it, this analysis ignores the pertinent question of whether the officer’s unrelated investigation delayed the completion of the traffic stop’s mission. Perhaps Trooper Rorie’s unrelated investigation did not extend the stop beyond the time frame of a “reasonable” traffic stop. But, under Rodriguez, the proper inquiry is whether the mission of the challenged stop itself would have been completed sooner had the officer not engaged in unrelated investigation. The panel’s focus on the length of a generic reasonable stop, rather than how long this stop should have taken, employs reasoning akin to that rejected by the Supreme Court in Rodriguez. The Supreme Court expressly rejected the notion that an officer can prolong a stop and conduct investigatory activity unrelated to the purpose of the stop if “the overall duration of the stop remains reasonable in relation to the duration of other traffic stops involving similar circumstances.” Rodriguez, 575 U.S. at 357. Here, Trooper Rorie paused his duties related to the purpose of the stop and began a new criminal investigation without reasonable suspicion. See Puckett, 139 F.4th at 735-36. The panel approved this detour unconnected to the purpose of the stop based on reasoning similar to that rejected by Rodriguez. Regardless of whether the duration of the detour would fit within the time it takes to complete the mission of an average stop, there is no avoiding the fact the detour added time to the stop, which contradicts Rodriguez, 575 U.S. at 357. An officer does not get “bonus time” by “completing all traffic-related tasks expeditiously,” whether during the mission or afterwards. See id. Thus, in my view, the panel’s formulation of the test is not consistent with Supreme Court precedent. As we have previously recognized, “[a] delay that ‘prolongs-i.e., adds time to-the stop’ . . . to conduct investigatory actions unrelated to the purpose of the stop is impermissible unless it is supported by reasonable suspicion.” Sanchez, 955 F.3d at 674 (quoting Rodriguez, 575 U.S. at 357). Our prior statement of the law is in accord with the majority of the other circuits and is true to Rodriguez. See, e.g., Campbell, 26 F.4th at 885.