[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
04/14/99
No. 98-2295 THOMAS K. KAHN
CLERK
D. C. Docket No. 97-288-CR-T-26C
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
BOBBY GENE SIMMONS,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
(April 14, 1999)
Before HATCHETT, Chief Judge, MARCUS, Circuit Judge, and KRAVITCH, Senior
Circuit Judge.
MARCUS, Circuit Judge:
A federal grand jury indicted Bobby Gene Simmons on charges of possession of a
firearm by a convicted felon, in violation of
18 U.S.C. § 922(g), possession of cocaine
with intent to distribute it, in violation of
21 U.S.C. § 841(a)(1), and carrying a firearm
during and in relation to a drug offense, in violation of
18 U.S.C. § 924(c)(1). Simmons
moved to suppress some thirty bags of cocaine and a firearm, both of which police
officers discovered in his automobile following a traffic stop for running a stop sign.
After holding an evidentiary hearing, the district court suppressed both the gun and the
cocaine as the fruits of a “prolonged” detention that violated the Fourth Amendment. The
government has taken this interlocutory appeal from the suppression order, arguing that
the relatively short additional delay occasioned by the officers’ investigation during the
traffic stop -- attempting to verify whether the detainee was the “Bobby Simmons” who
was the subject of an outstanding arrest warrant -- was a valid detention under Terry v.
Ohio,
392 U.S. 1 (1968).1 We agree and reverse.
I.
The facts are straightforward and we recount them as they were found by the
district court, crediting the officers’ testimony. On June 9, 1997, at 6:14 p.m., Tampa
Bay police officers Dale Frix and Alexander Rahmings stopped Bobby Gene Simmons
for running a stop sign while driving a white Pontiac station wagon with dark-tinted
windows.2 Before approaching the stopped car, the officers advised their dispatcher that
1
The government also argues that the police had reasonable suspicion of
Simmons’ involvement with the sale of cocaine based upon information the officers had
received prior to the stop, and contends that Simmons’ detention, until a drug-detecting
dog could arrive, was reasonable on that basis too. Since we find that the delay while
investigating the warrant provides a constitutional basis for Simmons’ detention, we have
no need to determine whether the officers had reasonable suspicions of Simmons’
involvement with cocaine based upon information predating the traffic stop.
Prior to the traffic stop, Officers Frix and Rahmings had received information
2
from two sources implicating Simmons as a dealer in narcotics. Two and one-half
2
they were on a traffic stop. They told Simmons that he had been stopped for failing to
stop at a stop sign and requested his driver's license and registration. They also asked for
consent to search the car, but Simmons refused. Four minutes later, at 6:18 p.m., Officer
Frix radioed the dispatcher and requested a drug-detecting dog, but was told that narcotics
dogs usually were not available until 7:00 p.m. Approximately ten minutes later, Frix
again radioed the dispatcher for an update on the availability of a dog. At 6:32 p.m., the
dispatcher told Frix that there was still no dog available. Frix asked the dispatcher to
contact a supervisor who might know where a canine unit could be located.
While Officer Frix sought a narcotics dog, Officer Rahmings had begun writing a
traffic citation for Simmons. He also conducted a routine mobile computer check to
ascertain whether there were any outstanding arrest warrants for Simmons. Rahmings
learned that Simmons’ license and registration were valid, but received a computer report
of an outstanding arrest warrant from Brevard County, Florida, for a “Bobby Simmons”
on a worthless check charge. The physical description of the subject of the warrant --
black male, 5 feet 10 or 11 inches tall, weighing 200 pounds -- closely matched that of
Simmons, but the birth date was different. The arrest warrant listed the subject’s date of
months earlier, a person familiar with the Robles Park area, the neighborhood near where
Simmons was detained, told the officers that a man who drove a white Pontiac station
wagon with dark-tinted windows regularly sold drugs in the area. Three weeks before the
stop, a woman who had been arrested for cocaine possession told the officers that she
regularly bought cocaine from Simmons. She said that she would page Simmons from a
nearby convenience store, and that Simmons usually appeared at the store shortly after
being paged to call the telephone number of the convenience store.
3
birth as October 10, 1957, and Simmons’ date of birth was August 23, 1953, making the
subject of the warrant approximately 40 years old, while Simmons was approximately 44
years old.
Officer Rahmings radioed the dispatcher to request a teletype be sent to Brevard
County to clarify the information, but was put on hold. Rahmings then used his mobile
computer to request the teletype to be sent. Rahmings also tried to contact his supervisor
for advice on how to proceed. Rahmings’ activities occurred within 20 to 30 minutes of
the officer’s return to the police car to write the traffic citation, or between 6:38 p.m. and
6:48 p.m.
At 6:50 p.m., Officers Frix and Rahmings were notified that a drug-detecting dog
had been dispatched to the scene. Six minutes later, Rahmings called his dispatcher to
confirm that his request that a teletype be sent to Brevard County had been received, but
again was told by the dispatcher to “stand by.” At approximately 7:00 p.m., the drug-
detecting dog arrived at the scene and gave a positive alert to Simmons’ car for the
presence of contraband between 7:05 p.m. and 7:10 p.m. Soon thereafter, the officers
searched Simmons’ car and found thirty small bags of cocaine under the driver’s seat and
a loaded handgun beneath a sheet of paper on the center console. By 7:12 p.m., Simmons
was under arrest. At 7:32 p.m., Brevard County responded to the teletype inquiry,
reporting that it had no further information on the “Bobby Simmons” who was the subject
of the bad check warrant.
4
The district court unambiguously found that the police officers had observed
Simmons run a stop sign and consequently ruled that the initial traffic stop was lawful,
regardless of what the officers’ subjective motivations may have been. Notably, the court
also determined that the Tampa police officers had acted diligently in attempting to verify
whether Simmons was the subject of the Brevard County arrest warrant and found that
there had been no undue delay in that endeavor. Further, the court found that the police
had acted diligently in procuring a drug-detecting dog and that there had been no
unreasonable delay in getting the dog to the scene.3
Notwithstanding those findings of fact and credibility choices drawn in favor of
the police officers, the district court concluded that the detention of Simmons beyond the
time it normally takes to write a traffic citation was unconstitutional because the officers
lacked reasonable suspicion to believe that Simmons was the actual subject of the
Brevard County arrest warrant. In addition to what the court regarded as ambiguous
information concerning the warrant from the computer check, the court based its ruling on
several factors it felt were peculiar to this case: that Simmons lived in the neighborhood
where the stop had taken place on the west coast of Florida, and the warrant was issued
from a county on the east coast of Florida; that the officers had known of their drug
suspicions of Simmons for several months and yet had learned of no outstanding warrants
3
The court rejected as not sufficiently specific the officers’ testimony that they
also had a reasonable suspicion that Simmons’ dark-tinted windshield violated some tint
law of Florida, but that ruling is not relevant to our conclusions on this appeal.
5
for him; and that the officers easily could have arrested Simmons later if the warrant
turned out to be for him. Having concluded that the officers lacked reasonable suspicion
to detain Simmons based on the arrest warrant, the district court determined that evidence
found by the police after the time Simmons’ traffic stop normally should have been
completed had been discovered in violation of the Fourth Amendment.4
II.
We review the trial court’s findings of fact for clear error, see Ornelas v. United
States,
517 U.S. 690, 699 (1996), but we review de novo the application of those facts to
the law, see United States v. Garcia,
890 F.2d 355, 358 (11th Cir. 1989). Here, since the
government is not contesting any factual finding, we apply the de novo standard.
Under the Fourth Amendment, a decision to stop an automobile is reasonable
where the police have probable cause to believe that a traffic violation occurred, see
Whren v. United States,
517 U.S. 806, 810 (1996), and an officer’s motive in making the
traffic stop does not invalidate what is otherwise “objectively justifiable behavior under
the Fourth Amendment,”
id. at 812; see also United States v. Roy,
869 F.2d 1427, 1431-
33 (11th Cir.) (subjective belief of Coast Guard did not invalidate boarding, even where
4
The court phrased the issue as follows: “The issue is, is between 6:18 and we’ll
say 7:00 p.m., that’s what, 42 minutes, 42 minutes, taking into account how long these
police officers would normally write a ticket -- really hasn’t been any testimony, but
obviously it doesn’t take 42 minutes to effectuate a traffic stop for a stop sign -- was that
too long? Did they have the authority to detain Mr. Simmons awaiting the arrival of this
K-9, this drug -- I’ll call it the drug dog, based on facts which came to their mind or
which they perceived after the traffic stop?”
6
the officers themselves believed they did not have probable cause, where facts objectively
supported a finding of probable cause, which is determined by the courts), cert. denied,
493 U.S. 818 (1989). The district court found that there was “no question” that the
officers had observed Simmons run the stop sign and, therefore, had probable cause to
stop Simmons’ automobile. There is no basis on this record to question that finding,
which was grounded upon credibility choices made by the district court.
The essential question posited by this case then is whether the additional 17 to 26
minutes consumed by Officer Rahmings’ attempts to track down more information
concerning the Brevard County warrant for a bad check charge rendered the duration of
the stop unconstitutional. We hold that it did not. Once the police had validly detained
Simmons, plainly they were entitled under the decisional law to conduct a variety of
checks on the driver and his car, including questioning the driver about the traffic
violation, requesting consent to search the car, and running a computer check for
outstanding warrants. See, e.g., Ohio v. Robinette,
519 U.S. 33, 35-36 (1996) (discussing
an officer’s computer check of driver license and request for consent to search during a
traffic stop); United States v. Hardy,
855 F.2d 753, 755, 757 (11th Cir. 1988) (relating
officers’ request for consent to search and check for warrants after traffic stop); see also
United States v. Mendez,
118 F.3d 1426, 1429 (10th Cir. 1997) (“An officer conducting a
routine traffic stop may run computer checks on the driver’s license, the vehicle
registration papers, and on whether the driver has any outstanding warrants or the vehicle
has been reported stolen.”).
7
The propriety of the continued detention of Simmons after the “normal time for a
traffic stop ended” is governed by Terry v. Ohio,
392 U.S. 1 (1968), and its progeny. The
detention of Simmons was proper if the officers could point to “‘specific and articulable
facts which, taken together with rational inferences from those facts, justify a reasonable
and articulable suspicion that the person seized is engaged in criminal activity.’” Hardy,
855 F.2d at 757 (quoting Terry,
392 U.S. at 21). Although the “reasonable suspicion”
standard is less demanding than probable cause, it must be more than an “inchoate and
unparticularized suspicion or hunch.” United States v. Sokolow,
490 U.S. 1, 7 (1989)
(citation and internal quotation marks omitted). Thus, in evaluating the validity of an
investigative stop, we consider the “totality of the circumstances.”
Id. at 8. Translated
into the inquiry here, the question boils down to this: whether, in light of all of the
circumstances the officers faced, they had a reasonable and articulable suspicion that
Simmons was the subject of the Brevard County arrest warrant.
In echoing the district court’s conclusion, Simmons argues that it was not
reasonable for the officers to think that the warrant was for him because it was from a
county on the other side of the state, that the date of birth on the warrant did not match the
defendant's, that two and one-half months earlier police had run defendant's name, but
had not detected any outstanding warrants, and that the warrant was for a worthless
check, as opposed to a more "serious" crime. The government contends that the officers
were entitled to investigate whether the warrant was for Simmons, even though the date
8
of birth may not have completely matched up. The government has the better of the
argument.
As we stated in Hardy, "'if the initial stop was legal, the [officer] had the duty to
investigate suspicious circumstances that then came to his attention.'"
855 F.2d at 757
(emphasis added) (quoting United States v. Cruz,
581 F.2d 535, 539 (5th Cir. 1978) (en
banc)). Here, the traffic stop was unquestionably legal and the officers legally ran the
computer check that turned up the Brevard County warrant. The mere fact that the
warrant was from another county on the other side of a narrow state, or that it was for a
worthless check, does not diminish the specific and articulable suspicion that the "Bobby
Simmons" named in the warrant was the "Bobby Gene Simmons" who had been stopped.
The difference in the date of birth is not fatal. Notably, the person described in the
teletype concerning the warrant conformed to the person before the officers by first and
last names, sex, race, and physical description. The difference of four years as applied to
a man in his forties did not negate the positive matches. The officers' fruitless records
check on Simmons two and one-half months earlier did not require a conclusion by the
officers that this warrant was not for Simmons. The officers testified at the suppression
hearing that they previously had received inaccurate information from their computer
checks of warrants. At best, their prior check of outstanding warrants for Simmons was
only one factor among many that a reasonable officer would have considered in deciding
whether to detain Simmons to investigate further whether he was the subject of the
outstanding Brevard County warrant. Although the degree of correlation between
9
Simmons and the subject of the warrant may not have given the officers probable cause to
arrest him, the correlation was far more than an inchoate "hunch." While the officers
could have let him go and arrested him later because they may have known where to find
him, no case has ever so held and we can discern no valid legal principle or compelling
fact requiring them to do so. Indeed, a reasonable officer may well have viewed as a
dereliction of duty the possibility of sending Simmons on his way without diligently
attempting to verify whether the arrest warrant was really for him. We cannot fault their
determination to do a sworn duty.
The courts refrain from "indulg[ing] in unrealistic second-guessing" of officers at
the scene. United States v. Sokolow,
490 U.S. at 11 (citation and internal quotation marks
omitted). The determination of reasonable suspicion "does not deal with hard certainties,
but with probabilities. Long before the law of probabilities was articulated as such,
practical people formulated certain common sense conclusions about human behavior;
jurors as factfinders are permitted to do the same -- and so are law enforcement officers."
United States v. Cortez,
449 U.S. 411, 418 (1981). We cannot say that Officers Frix and
Rahmings acted unreasonably in detaining Simmons to investigate the warrant, even if the
investigation ultimately did not produce definitive results. To hold otherwise would
mean that the officers violated the Fourth Amendment when they briefly detained
Simmons to verify whether he was the subject of the Brevard County warrant. Nothing in
Fourth Amendment jurisprudence suggests such an answer.
10
Finally, the length of the delay consumed in the conduct of the investigative
detention must have been "sufficiently limited in scope and duration to remain within the
bounds" permitted by Terry. Hardy,
855 F.2d at 758. Several issues and circumstances
are relevant to this analysis, including "the law enforcement purposes served by the
detention, the diligence with which the police pursue the investigation, the scope and
intrusiveness of the detention, and the duration of the detention."
Id. (citing United States
v. Sharpe,
470 U.S. 675, 685-86 (1985)). Here, the law enforcement purpose served by
detaining Simmons beyond the initial traffic stop was to confirm or reject, by computer
check and follow-up teletype, whether Simmons was the subject of the Brevard County
arrest warrant. We believe that this was a "method of investigation that was likely to
confirm or dispel their suspicions quickly, and with a minimum of interference."
Id.
(citing Sharpe,
470 U.S. at 686). Moreover, the district court found, and the record fully
supports the finding, that the officers acted diligently with respect to the warrant. They
tried to obtain further information from a variety of sources to clarify the identity of the
"Bobby Simmons" who was the subject of the warrant. Promptly, they radioed the
dispatcher to send a teletype to Brevard County, and after being put on hold, used their
mobile computer to request the dispatcher to send the teletype. They also tried to contact
their supervisor. We find that the "scope and intrusiveness" of the detention was
relatively minor. Simmons sat in his own car during the time consumed by the entire
stop.
11
We held in Hardy that a 50-minute investigative stop was not excessive under the
circumstances. See
id. at 761; cf. United States v. Place,
462 U.S. 696, 709 (1983)
(stating that 90 minutes is "probably" too long for a Terry stop). Other courts have found
a 30-minute wait for a computer check during a traffic stop reasonable. See, e.g., United
States v. Shareef,
100 F.3d 1491, 1502 (10th Cir. 1996); United States v. Jones,
44 F.3d
860, 871 (10th Cir. 1995). We observe that longer traffic stops, during which nothing
occurred to justify the additional detention, usually require extenuating circumstances to
be upheld. See United States v. Rutherford,
824 F.2d 831, 833-34 (10th Cir. 1987)
(upholding a one-hour traffic stop where nearly one-half of the time was occasioned by
problems with police computer).
In this case we find that the purpose of the detention, the officers' diligence in
trying to prove or disprove that Simmons was the subject of the Brevard County warrant,
the limited scope of the continued detention beyond that warranted for a "normal traffic
stop," and the overall length of the total detention, all place Simmons' detention well
within the bounds permitted by Terry v. Ohio and its progeny. The officers stopped
Simmons at 6:14 p.m., and the officers returned to their vehicle at 6:18 p.m. to begin the
routine processes of writing a citation and requesting checks of Simmons' license, tag and
for outstanding warrants. The unrebutted evidence adduced at the suppression hearing
showed that these officers spent 20 to 30 minutes on the "routine" part of this traffic stop.
Thus, the issuance of a citation to Simmons would have been completed by around 6:44
p.m. to 6:48 p.m. The remainder of the time that elapsed until the narcotics-detecting dog
12
alerted to Simmons' car some time between 7:05 p.m. and 7:10 p.m. constitutes the
additional 17 to 26 minutes consumed by the attempts to determine whether Simmons
was the subject of the Brevard County warrant. The intervening development of probable
cause based upon the dog's alert, see United States v. Holloman,
113 F.3d 192, 194 (11th
1997), obviates the need for us to ascertain whether Simmons' continued detention until
7:32 p.m., when the Brevard County response was received, would have been reasonable.
Simmons contends, however, that the officers' request for a drug-detecting dog
shortly after pulling Simmons over, when combined with the information they possessed
concerning allegations of his earlier involvement in the sale of cocaine, transformed the
stop into an investigative detention for a drug search. However, we measure whether
Officers Frix and Rahmings had reasonable suspicion to detain Simmons by considering
whether an objectively reasonable police officer would make such a decision to detain.
We need only determine whether a reasonable police officer, under the totality of
circumstances, would have detained Simmons to investigate whether the arrest warrant
for "Bobby Simmons" was for him. Nothing about the bases for suspecting that Simmons
was a drug dealer in the neighborhood undermined the specific and articulable facts
which justified a reasonable belief that Simmons was the subject of the Brevard County
arrest warrant. Thus, we reject the contention that the precautionary request for the dog
shortly after the officers effected the traffic stop, by itself, somehow transformed a stop
and short detention, otherwise unambiguously supported by specific and objectively
reasonable facts, into an unreasonable one.
13
We, therefore, reverse the district court's order suppressing the evidence on Fourth
Amendment grounds and remand this case to the district court for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
14
