{"id":970,"date":"2007-08-12T20:25:29","date_gmt":"2007-05-05T08:36:39","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-05-05T08:36:39","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=970","title":{"rendered":"8th Cir. clarifies officers’ ability to question during traffic stop \/ 3d Cir. exhalts good faith exception over motions to suppress"},"content":{"rendered":"

The Eighth Circuit clarifies its cases, not in an en banc opinion, and holds that three brief questions during a valid traffic stop is not unreasonable, even though one of them was about carrying drugs. Dog sniff while waiting for a response from the dispatcher was not unreasonable. Even Hudson<\/em> is invoked. United States v. Olivera-Mendez, 2007 U.S. App. LEXIS 10492 (8th Cir. May 4, 2007):<\/p>\n

Some of our cases appear to say that merely asking an off-topic question during an otherwise lawful traffic stop violates the Fourth Amendment, United States v. Ramos<\/em>, 42 F.3d 1160, 1163 (8th Cir. 1994); United States v. Barahona<\/em>, 990 F.2d 412, 416 (8th Cir. 1993), but this view does not survive Muehler v. Mena<\/em>, 544 U.S. 93, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005). In Muehler<\/em>, the Supreme Court reiterated that “mere police questioning does not constitute a seizure,” id<\/em>. at 101 (quoting Florida v. Bostick<\/em>, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)), and rejected the suggestion that questioning on a matter unrelated to the purpose of a detention constituted a “discrete Fourth Amendment event.” Id<\/em>. at 100-01. Where the initial detention was not prolonged by questioning on unrelated matters, “there was no additional seizure within the meaning of the Fourth Amendment.” Id<\/em>. at 101. See also United States v. Shabazz,<\/em> 993 F.2d 431, 436-437 (5th Cir. 1993).<\/p>\n

Muehler<\/em> does not address whether questions unrelated to the initial purpose of a detention may constitute an unlawful seizure if they extend the length of the detention. Three circuits have held that where a seizure of a person is based on probable cause to believe that a traffic violation was committed, an officer does not violate the Fourth Amendment by asking a few questions about matters unrelated to the traffic violation, even if this conversation briefly extends the length of the detention. United States v. Alcaraz-Arellano<\/em>, 441 F.3d 1252, 1259 (10th Cir. 2006); United States v. Burton<\/em>, 334 F.3d 514, 518-19 (6th Cir. 2003); United States v. Childs<\/em>, 277 F.3d 947, 951-54 (7th Cir. 2002) (en banc); but cf. United States v. Pruitt<\/em>, 174 F.3d 1215, 1220-21 (11th Cir. 1999). The rationale for this conclusion was stated most thoroughly by the en banc Seventh Circuit, which reasoned that in contrast to the constraints applicable to a stop based merely on reasonable suspicion, see Terry v. Ohio<\/em>, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the Fourth Amendment does not require the release of a person seized with probable cause “at the earliest moment that step can be accomplished,” and that “[q]uestions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention.” Childs<\/em>, 277 F.3d at 953-54. See Berkemer v. McCarty,<\/em> 468 U.S. 420, 439 n.29, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (“We of course do not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop.”). The police here had probable cause to seize Olivera-Mendez for driving at an excessive speed, and we do not think Kolz effected an unreasonable seizure simply by asking three brief questions related to possible drug trafficking amidst his other traffic-related inquiries and tasks.<\/p>\n

Assuming for the sake of argument, however, that it was unreasonable for Kolz to extend the stop by twenty-five seconds unless he had reasonable suspicion to ask questions about drug-related activity, we hold alternatively that evidence seized from Olivera-Mendez should not be suppressed. Evidence should not be excluded from trial based on a constitutional violation unless the illegality is at least a but-for cause of obtaining the evidence. Hudson v. Michigan,<\/em> 126 S. Ct. 2159, 2164, 165 L. Ed. 2d 56 (2006); Segura v. United States, 468 U.S. 796, 815, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984). There is no basis on this record to conclude that Kolz’s brief and fruitless inquiries about drugs during the course of an otherwise lawful traffic stop led to discovery of the cocaine.<\/p><\/blockquote>\n

Third Circuit belittles motions to suppress search warrants holding that the good faith exception will ordinary cure any problem with a warrant, and the reviewing court should consider good faith and not bother with the merits. United States v. Primo, 223 Fed. Appx. 187 (3d Cir. 2007) (unpublished):<\/p>\n

In a case such as this, where “a suppression motion poses no Fourth Amendment question of broad import,” it is “prudent [*5] for a reviewing court to immediately turn to the question of whether the officers acted in good faith.” Gates,<\/em> 462 U.S. at 265 (White, J., concurring in the judgment); see United States v. $92,422.57<\/em>, 307 F.3d 137, 145 (3d Cir. 2002); see also United States v. Craig<\/em>, 861 F.2d 818, 820 (5th Cir. 1988) (“Principles of judicial restraint … dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of the evidence under the good-faith exception of Leon will resolve the matter.”). We will therefore limit our analysis to the dispositive question of “whether a reasonably well trained officer would have known that the search[es] [were] illegal despite the magistrate’s authorization.” Loy,<\/em> 191 F.3d at 367.<\/p>\n

Under our cases, the mere “fact that an officer executes a search pursuant to a warrant typically suffices to prove that an officer conducted a search in good faith and justifies application of the good faith exception.” $92,422.57,<\/em> 307 F.3d at 146 (internal quotation omitted). Indeed, we have identified only “four narrow situations,” id.,<\/em> in which suppression is appropriate:<\/p>\n

“(1) the magistrate issued the warrant in reliance on a deliberately or recklessly false affidavit.<\/p>\n

(2) the magistrate abandoned his judicial role and failed to perform his neutral and detached function.<\/p>\n

(3) the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.<\/p>\n

(4) the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized.”<\/p>\n

Williams<\/em>, 3 F.3d at 74 n.4 (citations omitted).<\/p>\n

Primo does not specifically argue that any of these “narrow situations” applies here. In fact, his brief does not mention Leon’s good-faith exception. Our own independent review of the record confirms that the Somerset police officers acted in good-faith reliance on the District Justice’s issuance of the four warrants in question. The record contains no indicia of deliberate or reckless falsities in the affidavits. The District Justice appears to have performed his neutral and detached function. The affidavits contain sufficient indicia of probable cause. And none of the four warrants is “so facially deficient that it failed to particularize the place to be searched or the things to be seized.” See id<\/em>. In short, the Somerset police reasonably relied on the authority of the four search warrants, and the District Court’s denial of Primo’s suppression motion was proper.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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