CA11 follows all other circuits: Brief questioning unrelated to the stop not unreasonable; questioning not a search

Brief questioning unrelated to the reason for the stop did not themselves constitute a search or offend Terry. United States v. Griffin, 696 F.3d 1354 (11th Cir. 2012):

So how do cases like Mena and Johnson affect, if at all, the “reasonably related in scope” prong of Terry? This is a matter of first impression for us, but a number of our sister circuits have directly confronted the question, and they have all answered it the same way. See United States v. Digiovanni, 650 F.3d 498, 507 (4th Cir. 2011) (“Both Mena and Johnson make clear that unrelated questioning during an investigative stop … does not run afoul of the scope component of Terry’s second prong.”); United States v. Everett, 601 F.3d 484, 494 n.10 (6th Cir. 2010) (“[Mena] and Johnson … stand for the proposition that mere questioning—on any subject—cannot violate the scope prong of Terry[,]” and “[t]herefore, where Terry’s duration prong is not at issue … the subject of the questioning” is irrelevant); United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007) (Mena overruled cases holding that unrelated questions during a Terry stop must be supported by independent reasonable suspicion); United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258 (10th Cir. 2006) (Mena “limited” the “reasonably related in scope” prong of Terry so that, as long as the unrelated questioning does not extend the length of the detention, “there is no Fourth Amendment issue with respect to the content of the questions”). See also United States v. Childs, 277 F.3d 947, 949 (7th Cir. 2002) (en banc) (“questions that do not increase the length of detention (or that extend it by only a brief time) do not make the custody itself unreasonable or require suppression of evidence found as a result of the answers”). We concur with the Fourth, Sixth, Seventh, Ninth, and Tenth Circuits, and hold—consistent with Mena and Johnson—that unrelated questions posed during a valid Terry stop do not create a Fourth Amendment problem unless they “measurably extend the duration of the stop.” Johnson, 555 U.S. at 333. This is because such questions, absent a prolonged detention, do not constitute a “discrete Fourth Amendment event.” Mena, 544 U.S. at 101.

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To the extent that it believed that Officer Edwards’ questions constituted a search under the Fourth Amendment, the district court was mistaken. Whatever else they might be, questions posed by a police officer to a suspect about what he has in his pocket and whether he has been to prison are not, in the Fourth Amendment sense, a search. “In context, these sorts of questions are not the verbal equivalent of reaching into a suspect’s pockets to remove the contents, or the same as ordering a suspect to ’empty his pockets’ in the midst of a protective frisk.” United States v. Street, 614 F.3d 228, 234 (6th Cir. 2010) (internal citations omitted). See also Childs, 277 F.3d at 954 (“Nor do the questions forcibly invade any privacy interest or extract information without the suspect’s consent.”). “Sometimes a question is just a question—and an eminently reasonable question at that. That is all that happened here.” Street, 614 F.3d at 234.