CA4: Asking for consent after traffic stop was complete here was de minimus

After issuing defendant a traffic ticket, the officer told him to get out of the car so he could explain it to him, and merely asking for consent was a de minimus extension of the stop. United States v. Davis, 460 Fed. Appx. 226 (4th Cir. 2011):

Officer Flatt’s following two questions, which asked whether any drugs or weapons were in the vehicle and for consent to search it, were unrelated to the underlying justification for the traffic stop, but they do not demonstrate a lack of diligence in prosecuting the stop so as to unlawfully extend its scope and duration beyond the circumstances justifying it. They neither constituted the bulk of the encounter between Officer Flatt and Davis nor signaled a definitive abandonment of the prosecution of the traffic stop to embark on another sustained course of investigation. They were the first and only unrelated questions asked until that point. All of the officers’ actions leading up to that exchange were tailored to prosecuting the traffic stop. The delay resulting from the exchange, which lasted a matter of seconds, was de minimis. Furthermore, after obtaining Davis’s consent, Officer Flatt returned to prosecuting the traffic stop while Officer Dollar searched the vehicle. Officer Flatt explained the citation to Davis and issued it to him. Because the officers diligently pursued the objective of the traffic stop, we hold that the brief exchange surrounding the request for consent did not extend the scope and duration of the stop in a manner that rendered the stop unconstitutional.

Thus, Davis’s consent was not the product of an illegal detention. As Davis’s consent was voluntary and provided during a lawful detention, it was valid and not tainted. When Davis provided his consent to search the vehicle, he necessarily consented to an extension of the traffic stop long enough for the officers to conduct the search. See United States v. Rivera, 570 F.3d 1009, 1013-14 (8th Cir. 2009) (“When a motorist gives consent to search his vehicle, he necessarily consents to an extension of the traffic stop while the search is conducted ….”). His further detention during the search of his vehicle was, therefore, lawful. The consensual search yielded the firearm at issue. Because the firearm was recovered during a lawful detention and search, it was not tainted, and the district court correctly declined to suppress it.

[Note: This was far too long and detailed to be just unpublished. Watch for de minimus extension of stops in the cases–it’s dangerous. See this quote from Rivera, at 1014:

As soon as Rivera declined to execute the written consent form, Coleman promptly walked the dog around Rivera’s truck, where it alerted. This took less than two minutes. Our cases hold that such a brief detention for a dog sniff at the end of a traffic stop is de minimis and does not violate the Fourth Amendment. United States v. Alexander, 448 F.3d 1014, 1016-17 (8th Cir.2006); United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 649 (8th Cir.1999).