{"id":6271,"date":"2011-12-19T16:02:38","date_gmt":"2011-11-13T00:45:15","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-11-12T16:09:05","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6271","title":{"rendered":"CA4 explains Terry<\/em>‘s \u201cmust diligently pursue the investigation of the justification for the stop\u201d when ICE was called"},"content":{"rendered":"

A stop led to ICE being called, and that slowed \u201cinvestigation of the justification for the stop.\u201d However, the officer’s \u201ccalling ICE to inquire into the validity of the Gaitan ID is analogous in many ways to how an officer routinely runs a driver’s license and registration to check their validity,\u201d and here it was not unreasonable. United States v. Guijon-Ortiz<\/a>, 660 F.3d 757 (4th Cir. 2011):<\/p>\n

Strictly speaking, the scope and duration inquiries under Terry<\/a>\u2019s second prong are distinct. They become intertwined, however, in cases where, as here, the actions a defendant argues exceeded the scope of the stop necessarily also extended its duration. This raises the following question: Under what circumstances, if ever, may an officer prolong a traffic stop to investigate matters unrelated to the justification for the stop and without reasonable suspicion, whether through questioning or other means?<\/p>\n

. . .<\/p>\n

As we explained in Digiovanni<\/a>, for a traffic stop to satisfy Terry<\/a>\u2019s second prong, the police officer \u201cmust diligently pursue the investigation of the justification for the stop.\u201d Id. (citing Sharpe<\/a>, 470 U.S. at 686). Although we have held that \u201cwhere a delay can be characterized as de minimis under the totality of the circumstances, it will not be recognized as a Fourth Amendment violation,\u201d id. (citing Mason, 628 F.3d at 132), the principal inquiry, as articulated by the Sixth Circuit, is \u201cthe officer\u2019s diligence\u2014i.e., his persevering or devoted application to accomplish the undertaking of ascertaining whether the suspected traffic violation occurred, and, if necessary, issuing a ticket.\u201d United States v. Everett<\/a>, 601 F.3d 484, 494 (6th Cir. 2010) (internal quotation marks and alterations omitted). If \u201cthe totality of the circumstances, viewed objectively, establishes that the officer, without reasonable suspicion, definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation, this would surely bespeak a lack of diligence.\u201d Id. at 495.<\/p>\n

This standard incorporates both the duration and scope components of Terry<\/a>\u2019s second prong. Some courts and commentators have questioned whether the scope component survives Johnson. See United States v. Stewart<\/a>, 473 F.3d 1265, 1269 (10th Cir. 2007) (\u201cThe correct Fourth Amendment inquiry (assuming the detention is legitimate) is whether an officer\u2019s traffic stop questions \u2018extended the time\u2019 that a driver was detained, regardless of the questions\u2019 content.\u201d); Reid M. Bolton, Comment, The Legality of Prolonged Traffic Stops After Herring: Brief Delays as Isolated Negligence<\/a>, 76 U. Chi. L. Rev. 1781, 1786-87 (2009). We disagree, because, as we have explained: \u201c[T]he scope of a police officer\u2019s actions during a traffic stop still is relevant to the reasonableness analysis under the Fourth Amendment … because, during a stop, a police officer must act reasonably, that is, he must diligently pursue the investigation of the justification for the stop.\u201d Digiovanni<\/a>, 650 F.3d at 509. Johnson holds only that unrelated questioning that does not prolong a traffic stop does not render the stop unlawful. In cases where, as here, the questioning does extend the seizure, the scope of an officer\u2019s unrelated investigation could be relevant to whether the officer \u201cdefinitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation.\u201d Everett<\/a>, 601 F.3d at 495.<\/p>\n

We acknowledge that in Digiovanni<\/a> the issue was whether police questioning caused the traffic stop to exceed its permissible scope and duration. Here, in contrast, the action Guijon-Ortiz argues prolonged the stop was the call to ICE, which Flowers made from the patrol car while the three men waited in the pickup truck. We believe the \u201cdiligently pursue\u201d standard applies nonetheless, because either questioning a person directly or pursuing other means of investigation may, in the context of a particular traffic stop, be relevant to whether an officer diligently pursued the investigation of the justification for the stop.<\/p>\n

Our approach is in accord with not only that of the Sixth Circuit in Everett<\/a> but also that of at least the Eighth and Ninth Circuits. See United States v. Turvin<\/a>, 517 F.3d 1097, 1101 (9th Cir. 2008) (holding that \u201cwhether questioning unrelated to the purpose of the traffic stop and separate from the ticket-writing process that prolongs the duration of the stop may nonetheless be reasonable\u201d is determined by \u201cexamin[ing] the \u2018totality of the circumstances\u2019 surrounding the stop\u201d); United States v. Olivera-Mendez<\/a>, 484 F.3d 505, 510 (8th Cir. 2007) (\u201cWhether a particular detention is reasonable in length is a fact-intensive question, and there is no per se time limit on all traffic stops. When there are complications in carrying out the traffic-related purposes of the stop, for example, police may reasonably detain a driver for a longer duration than when a stop is strictly routine.\u201d) (citing Sharpe<\/a>, 470 U.S. at 685-87).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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