United States v. James Evans

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10024
Plaintiff-Appellant,
D.C. No.
v. 3:13-cr-00079-
LRH-WGC-1
SEPTEMBER MCCONNELL,
Defendant,
OPINION
and
JAMES EVANS,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued September 11, 2014
Submitted May 14, 2015
San Francisco, California
Filed May 20, 2015
Before: Stephen Reinhardt, Raymond C. Fisher,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
2 UNITED STATES V. EVANS
SUMMARY*
Criminal Law
The panel vacated the district court’s order granting
James Evans’ motion to suppress evidence of illegal drugs
and a firearm found in a search of his car following a traffic
stop, and remanded.
Applying Rodriguez v. United States, 135 S. Ct. 1609(2015), the panel held that, by conducting an ex-felon
registration check and a dog sniff, both of which were
unrelated to the traffic violation for which he stopped Evans,
an officer prolonged the traffic stop beyond the time
reasonably required to complete his traffic mission, and so
violated the Fourth Amendment, unless there was
independent reasonable suspicion justifying each
prolongation. The panel remanded to the district court for
consideration in the first instance of whether the officer’s
prolongation of the traffic stop was supported by independent
reasonable suspicion.
COUNSEL
Elizabeth O. White (argued), Appellate Chief and Assistant
United States Attorney; Daniel G. Bogden, United States
Attorney, Reno, Nevada, for Plaintiff-Appellant.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. EVANS 3
Janice A. Hubbard, Reno, Nevada, for Defendant-Appellee
James Evans.
OPINION
BERZON, Circuit Judge:
The United States appeals the district court’s order
granting James Evans’ motion to suppress evidence of illegal
drugs and a firearm found in a search of his car following a
traffic stop. We vacated submission pending the Supreme
Court’s decision in Rodriguez v. United States, 135 S. Ct.
1609 (2015), and now hold that the officer’s prolongation of
the traffic stop to conduct both an ex-felon registration check
and a “dog sniff” violated the Fourth Amendment unless the
officer had independent reasonable suspicion to support the
prolongations. Because the district court did not address
whether the officer had such reasonable suspicion, we vacate
and remand.
I.
A.
Over the course of 2012 and 2013, Detective Blaine
Beard, a Washoe County Sheriff’s Deputy assigned to the
Drug Enforcement Administration (DEA) task force in Reno,
Nevada, received information from two jailhouse sources that
Evans was distributing methamphetamine in the Reno-Sparks
4 UNITED STATES V. EVANS
area.1 Beard never “confirm[ed]” or “verif[ied]” this
information, however, as, according to him, the task force
didn’t “have the time at that point to dedicate towards an
investigation into Mr. Evans.”
In the summer of 2013, Beard met with an informant, who
had played a minor role in a different investigation Beard was
conducting into drug activities in the area. Beard testified
that the informant told him that he “had traveled to the
Sacramento Valley on more than one occasion with Mr.
Evans for the purpose of picking up a load of
methamphetamine from a source of supply in that area,” and
that Evans was picking up five to ten pounds of
methamphetamine every two to three weeks. According to
the informant, Evans would stay at a Super 8 Motel a few
miles from the supply source, acquire the “load,” and return
the following day to Nevada.
Based on this information, Beard obtained authorization
from a state court judge to obtain “pings” showing the
location of a cell phone Beard believed Evans was using for
drug distribution activities. In the early evening of July 22,
2013, Beard received GPS ping data showing that the cell
phone was leaving Nevada, traveling westbound. Later that
night, the cell phone pinged from a parking lot of a Super 8
Motel in Sacramento. Beard requested that two officers with
the Sacramento County Sheriff’s Office drive by the Super 8
1
This background is pieced together from both the audio-video
recording of the traffic stop that the government introduced into evidence
without objection, and the law enforcement officers’ testimony at the
suppression hearing. As we discuss below, however, the district court did
not make factual findings at the hearing. We thus express no opinion as
to the testimony’s credibility.
UNITED STATES V. EVANS 5
Motel to verify that the car suspected to be Evans’ was at that
parking lot. At roughly 1:30 AM, the Sacramento County
officers confirmed the suspected car was in the lot.
Beard subsequently contacted Deputy Brandon Zirkle, a
deputy sheriff in the Washoe County Sheriff’s Office whom
Beard had known for “years.” Zirkle was canine-certified
and had his dog, Thor, with him that day. Thor was trained
in the detection of controlled substances.
Beard supplied Zirkle with information about Evans’ car,
explaining that the DEA suspected Evans was traveling from
California with narcotics and that Beard was receiving GPS
location information from Evans’ phone. Beard asked Zirkle
to assist him by positioning his patrol car on the I-80 highway
and pulling Evans’ car over once it traveled past Zirkle.
Beard specifically requested that Zirkle “develop [his] own
probable cause to stop [the car]” to “possibly keep this event
separate from [Beard’s] ongoing investigation.”2
Following this conversation, Zirkle parked his patrol car
on I-80 on the Nevada side of the California-Nevada border
and waited for Evans’ vehicle to drive by. Beard, who had
been monitoring the GPS pings from Evans’ cell phone
throughout the day, learned that Evans left the Super 8 Motel
in the morning and drove east to Grass Valley, California,
where he stopped for several hours. At around 6:37 PM,
2
According to Zirkle, this type of stop — known as a “wall stop” — is
“basically a stand-alone case that would stand alone based on the initiating
officer’s own probable cause . . . without jeopardizing the ongoing
investigation.” That is, “the traffic stop [was to be] independent and clear
from the [DEA] investigation . . . to protect the [DEA’s] information and
the data and identities of the sources of information.”
6 UNITED STATES V. EVANS
DEA officers observed the suspected vehicle traveling
eastbound on I-80 about forty-five minutes west of Reno.
Beard relayed this information to Zirkle, who had been
waiting near I-80 for almost eleven hours.
Shortly after he was told that Evans was traveling
eastbound towards him, Zirkle observed a Chevrolet El
Camino with the reported license plate making a lane change
that caused the vehicle behind it to apply its brakes. After
following Evans for approximately a mile to a safe location,
Zirkle pulled Evans over for violating two Nevada traffic
laws prohibiting unsafe lane changes and following a vehicle
too closely. See Nev. Rev. Stat. §§ 484B.223(1)(b) &
484B.127(1). The traffic stop began at 7:09 PM.
Approaching the car from the passenger’s side, Zirkle
asked Evans for his license and registration. Zirkle testified
that he smelled a “very strong odor of methamphetamine”
coming from inside the vehicle. Zirkle then asked Evans to
get out of the car. After telling Evans that he had made an
unsafe lane change, Zirkle asked Evans where he was coming
from; Evans answered that he was heading back to Reno from
Grass Valley3 where he had stayed for a couple days with
friends. Zirkle patted down Evans for weapons, then asked
him to wait by the patrol car while he “checked some
numbers” on the El Camino.
After checking the El Camino’s vehicle identification
number, Zirkle walked to the car and asked the passenger,
September McConnell, for her identification. According to
3
Grass Valley, California, is a few miles from Nevada City, California.
Both the parties and the district court judge used the names “Grass
Valley” and “Nevada City” interchangeably.
UNITED STATES V. EVANS 7
Zirkle, McConnell appeared to be feigning sleep; Zirkle also
testified that McConnell’s hands were shaking and that her
pulse was racing in her neck to the extent that he could see
the heartbeat in her carotid artery. In response to Zirkle’s
questions, McConnell stated they were coming from
California, where they had stayed one night with Evans’
friend. At 7:13 PM (four minutes into the stop), Zirkle
informed Evans, who remained standing by Zirkle’s patrol
car, that he was not going to write a ticket, but that he needed
to run a check for outstanding warrants before letting him go.
Zirkle returned to his patrol car to prepare a records
check, which reveals whether the driver’s license is valid and
whether any warrants are outstanding for the holder’s arrest.
Evans approached Zirkle twice to inform him that he had had
trouble with his license and child support in the past, but that
it had been straightened out. Upon further questioning, Evans
also informed Zirkle that he had been arrested before. Zirkle
then contacted the police dispatch operator to call in a records
check. As Zirkle was calling in the records check, Nevada
State Trooper Jason Phillips appeared on the scene and spoke
with both Evans and McConnell.4 Minutes later, at nearly
7:20 PM, the operator returned with a clean records check on
the car, as well as on Evans’ and McConnell’s driver’s
licenses.
Zirkle then requested an ex-felon registration check on
Evans, as he had typed Evans’ name into the patrol car
computer and learned that Evans had a prior felony arrest
record. The check entailed inquiring into Evans’ criminal
history and then determining whether he was properly
4
Zirkle had contacted Phillips earlier, telling him to wait until Zirkle had
stopped the vehicle and then come to cover Zirkle on the stop.
8 UNITED STATES V. EVANS
registered at the address he provided to Zirkle.5 As he was
awaiting the results of the ex-felon registration check, Zirkle
testified that he sought “to see if [Evans] would continue to
give him the story that he gave . . . or change his story.”
Zirkle asked Evans why McConnell had told him that they
had stayed in a motel, knowing that she had said they had
stayed with friends. According to Zirkle, Evans now said that
he and McConnell stayed at a motel in Sacramento before
driving to a friend’s house in Grass Valley. Zirkle told Evans
that he was just waiting on the results of the ex-felon
registration check, and that, if it returned with a proper
registration, Evans would be free to leave.
Zirkle and Phillips then entered the patrol car and
discussed for several minutes what they had heard from
Evans and McConnell. Phillips told Zirkle that he smelled a
strong odor of marijuana coming from the car; Phillips did
not mention smelling methamphetamine. After this
conversation, Zirkle asked Evans, who remained standing
outside the patrol car, what he had been in prison for. Evans
answered that it had been for “counterfeiting.”
5
Nevada requires any “convicted person” within the state for a period
of 48 hours or more to register with the county sheriff or chief of police.
See Nev. Rev. Stat. § 179C.100(1). A “convicted person” includes any
person convicted in Nevada of “a category A felony” or “two or more
offenses punishable as felonies.” Id. § 179C.010(1)(a)–(b). Registration
involves submitting a written form with information including the
person’s name, description of his or her person, the “kind, character and
nature of each crime of which the person has been convicted,” and the
address of the person’s residence. Id. § 179C.100(4). Failure to register
is a misdemeanor. Id. § 179C.220.
UNITED STATES V. EVANS 9
At 7:26 PM, Zirkle called in to check on the status of the
ex-felon check. The dispatch operator indicated she was on
the phone with the records department to confirm everything.
At 7:28 PM, more than eight minutes after Zirkle called
in the ex-felon registration check, dispatch informed Zirkle
that Evans had been convicted two times for “drug-related
charges,” and that he was properly registered. Zirkle gave
Evans a warning, returned his license and paperwork, and
shook his hand, informing him that “you’re good to go.”
Immediately after Evans began to walk away, however,
Zirkle asked Evans if he could ask a few more questions.
Evans turned and walked back to Zirkle. Zirkle inquired
whether Evans had any contraband in the car, mentioning
marijuana, methamphetamine, cocaine, and heroin; Evans
denied having any drugs. Zirkle then asked for Evans’
consent to search the car. Evans refused to consent.
At this time, “[b]ased on everything [he] had seen in the
stop,” Zirkle believed he had “reasonable suspicion to keep
[Evans] there further to run a narcotic detection dog around
the exterior of the vehicle.” Zirkle told Evans he was going
to deploy Thor around the exterior of the car and ordered
McConnell out of the car. After spending about three
minutes preparing Thor, Zirkle began to walk the dog around
the vehicle. Thor then allegedly alerted to the passenger door
of Evans’ car, indicating to Zirkle that he was “in the odor of
a controlled substance.” According to the dispatch log, the
canine alert was entered at 7:33 PM — about twenty-four
minutes after the traffic stop began. Zirkle told Evans and
McConnell that they were no longer free to leave, and
prepared to conduct a search of the car. Shortly thereafter,
several agents from DEA arrived.
10 UNITED STATES V. EVANS
The resulting search turned up a doubled-bagged ziplock
sandwich bag containing methamphetamine and “small
bag[s]” of marijuana and crack cocaine, all of which were
contained in a “hard sunglass case . . . located in between the
driver and passenger seat of the vehicle.” Zirkle also found
an unloaded firearm in McConnell’s backpack. Evans and
McConnell were arrested.
B.
Evans and McConnell were indicted and charged with
conspiracy to distribute and possess with intent to distribute
five grams and more of methamphetamine; possession with
intent to distribute five grams and more of methamphetamine;
and carrying a firearm during and in relation to a drug
trafficking crime. Evans was also charged with being a felon
in possession of a firearm.
Evans moved to suppress the evidence seized from his
car, arguing, inter alia, that Zirkle unlawfully prolonged the
traffic stop by (1) continuing to detain Evans while he ran the
ex-felon registration check, and (2) conducting the dog sniff
“after the traffic stop was completed.” The government
responded that Zirkle had developed reasonable suspicion, if
not probable cause, of illegal drug activities in the course of
the traffic stop, and that the dog sniff was therefore justified.
The government did not specifically address Evans’
contentions regarding the ex-felon registration check.
Following an evidentiary hearing in which both Zirkle
and Beard testified, the district court orally granted Evans’
motion. Observing that “this is a classic subterfuge traffic
stop,” the court concluded that “this kind of a traffic stop for
an extended period of time was an unlawful seizure . . . [in]
UNITED STATES V. EVANS 11
violation of federal law.” The court therefore held that as
Evans was “seized beyond the amount of time that’s
reasonable under our constitution,” the search was “an
unlawful one.”
At a detention hearing two months later, the district court
ordered Evans conditionally released pending the
government’s appeal.
II.
We review de novo the district court’s ruling on a motion
to suppress and for clear error the district court’s underlying
findings of fact. See United States v. Turvin, 517 F.3d 1097,
1099 (9th Cir. 2008).
Evans does not dispute that Zirkle had probable cause that
he had committed a minor traffic violation, and that,
therefore, the initial traffic stop was lawful. But “a seizure
that is lawful at its inception can violate the Fourth
Amendment if its manner of execution unreasonably infringes
interests protected by the Constitution.” Illinois v. Caballes,
543 U.S. 405, 407 (2005). In particular, “[a] seizure that is
justified solely by the interest in issuing a warning ticket to
the driver can become unlawful if it is prolonged beyond the
time reasonably required to complete that mission.” Id.Rodriguez v. United States recently fleshed out these
principles. In Rodriguez, a police officer, Struble, stopped
Rodriguez for “veer[ing] slowly onto the shoulder of [the
highway] for one or two seconds” in violation of Nebraska
traffic law. 135 S. Ct. at 1612. After collecting Rodriguez’s
license, registration, and proof of insurance, Struble ran a
records check on Rodriguez. Id. at 1613. Once the records
12 UNITED STATES V. EVANS
check on Rodriguez was complete, Struble returned to the
vehicle, asked for the passenger’s driver’s license, and began
to question the passenger about “where [they] were coming
from and where they were going.” Id. Struble again returned
to his vehicle, where he completed a records check on the
passenger. Id.6 Once the record checks were completed,
Struble returned to the vehicle “to issue [a] written warning”
to Rodriguez for the traffic violation. Id.Although Struble conceded that the reasons for the traffic
stop at this point were “out of the way,” the officer
nonetheless asked Rodriguez for permission to walk his dog
around the vehicle. Id. After Rodriguez refused, Struble
instructed Rodriguez to exit the vehicle and wait for the
arrival of a second police officer. Several minutes later, after
a deputy sheriff arrived, Struble “retrieved his dog and led
him twice around the [vehicle].” Id. The dog alerted to the
presence of drugs, and a subsequent search of the vehicle
revealed a “large bag of methamphetamine.” Id. “All told,
seven or eight minutes had elapsed from the time Struble
issued the written warning until the dog indicated the
presence of drugs.” Id.Rodriguez was indicted for possession with intent to
distribute methamphetamine. Id. He moved to suppress the
evidence obtained from the car search, arguing that the stop
was unreasonably prolonged by the dog sniff in the absence
of reasonable suspicion to extend his detention. See id.Although the district court found that Struble lacked
independent reasonable suspicion to extend the detention
6
Rodriguez did not challenge Struble’s prolongation of the traffic stop
to conduct the records check on the passenger, and the Court did not
address it.
UNITED STATES V. EVANS 13
once he had issued the written warning, it determined that the
seven-to-eight minute extension of the stop was “only a de
minimis intrusion on Rodriguez’s Fourth Amendment rights
and was therefore permissible.” Id. at 1613–14.
Accordingly, it concluded that the prolongation did not
violate the Fourth Amendment’s prohibition on unreasonable
seizures. The Eighth Circuit affirmed, holding that the delay
constituted an acceptable de minimis intrusion. See United
States v. Rodriguez, 741 F.3d 905, 907–08 (8th Cir. 2014),
vacated and remanded, 135 S. Ct. 1609 (2015). The court
declined to address the district court’s conclusion that Struble
lacked independent reasonable suspicion to extend the
detention. See id. at 908.
The Supreme Court vacated the judgment, explaining
that, like a Terry stop, a traffic stop is “‘[a] relatively brief
encounter,’” in which “the tolerable duration of police
inquiries . . . is determined by the seizure’s ‘mission.’”
Rodriguez, 135 S. Ct. at 1614 (quoting Knowles v. Iowa,
525 U.S. 113, 117 (1998), and Caballes, 543 U.S. at 407).
This “mission” is limited to “address[ing] the traffic violation
that warranted the stop” and “attend[ing] to related safety
concerns.” Id. “Authority for the seizure thus ends,”
Rodriguez held, “when tasks tied to the traffic infraction are
— or reasonably should have been — completed.” Id. Tasks
not related to the traffic mission, such as dog sniffs, are
therefore unlawful if they “add[] time” to the stop, and are not
otherwise supported by independent reasonable suspicion of
wrongdoing. Id. at 1616.
In so holding, Rodriguez specifically rejected the
government’s argument that an officer can prolong a traffic
stop to conduct a non-traffic-related task “so long as the
officer is reasonably diligent in pursuing the traffic-related
14 UNITED STATES V. EVANS
purpose of the stop, and the overall duration of the stop
remains reasonable in relation to the duration of other traffic
stops involving similar circumstances.” Id. As the Eighth
Circuit had not addressed whether “reasonable suspicion of
criminal activity justified detaining Rodriguez beyond
completion of the traffic infraction investigation,” the
Supreme Court remanded the case. Id. at 1616–17.
III.
Applying Rodriguez, we hold that, by conducting an ex-
felon registration check and a dog sniff, both of which were
unrelated to the traffic violation for which he stopped Evans,
Zirkle “prolonged [the traffic stop] beyond the time
reasonably required to complete” his traffic “mission,” and so
violated the Fourth Amendment, unless there was
independent reasonable suspicion justifying each
prolongation. Id. at 1612 (quoting Caballes, 543 U.S. at 407)
(internal quotation marks omitted).
A.
When stopping an individual for a minor traffic violation,
“an officer’s mission includes ‘ordinary inquiries incident to
[the traffic] stop.’” Id. at 1615 (alteration in original)
(quoting Caballes, 543 U.S. at 408). “[S]uch inquiries
involve checking the driver’s license, determining whether
there are outstanding warrants against the driver, and
inspecting the automobile’s registration and proof of
insurance,” as these checks are aimed at “ensuring that
vehicles on the road are operated safely and responsibly.” Id.After stopping Evans, Zirkle performed vehicle records
and warrants checks, tasks that are “ordinary inquiries
UNITED STATES V. EVANS 15
incident to the traffic stop.” Id. (alteration and internal
quotation marks omitted). After completing those record
checks, Zirkle then requested an additional one — an ex-
felon registration check on Evans, to inquire as to Evans’
criminal history and confirm whether Evans was registered at
the address he provided to Zirkle. A little over eight minutes
after calling in the ex-felon registration check, dispatch
informed Zirkle that Evans had been convicted two times for
“drug-related charges,” and that he was properly registered at
the address he had given Zirkle.
The ex-felon registration check, unlike the vehicle records
or warrants checks, was wholly unrelated to Zirkle’s
“mission” of “ensuring that vehicles on the road are operated
safely and responsibly.” Id. Rather, it was “a measure aimed
at ‘detect[ing] evidence of ordinary criminal wrongdoing.’”
Id. (alteration in original) (quoting Indianapolis v. Edmond,
531 U.S. 32, 40–41 (2000)). Indeed, Zirkle himself testified
that when he decided to run the various checks, he believed
he had “something more than a simple traffic violation here.”
That the ex-felon registration check “occur[ed] before . . . the
officer issue[d] a ticket” is immaterial; rather, the “critical
question” is whether the check “prolongs— i.e., adds time to
— the stop.” Id. at 1616 (internal quotation marks omitted).
The ex-felon registration check in this case took
approximately eight minutes; in other words, almost half of
the duration of the pre-dog sniff detention can be attributed to
the dispatch operator’s processing of Evans’ criminal history
and ex-felon registration. During this processing time, Zirkle
continued to pose questions to Evans, many of which had no
relation to the traffic violation or Evans’ prior whereabouts.
Put another way, all “tasks tied to the traffic infraction
[had been] — or reasonably should have been — completed”
16 UNITED STATES V. EVANS
by the time Zirkle instigated the eight-minute ex-felon
registration check. Id. at 1614. Consequently, Zirkle violated
Evans’ Fourth Amendment rights to be free from
unreasonable seizures when he prolonged the traffic stop to
conduct this task, unless he had independent reasonable
suspicion justifying this prolongation.7
To be sure, Rodriguez recognized that “an officer may
need to take certain negligibly burdensome precautions in
order to complete his mission safely,” as traffic stops can be
“especially fraught with danger to police officers.”
Rodriguez, 135 S. Ct. at 1616 (emphasis added) (internal
quotation marks omitted). But, as discussed, the time it took
to complete the ex-felon registration check here was hardly
negligible; indeed, conducting the check effectively doubled
the length of Evans’ detention. Furthermore, the ex-felon
registration check in no way advanced officer safety. Zirkle
only conducted the ex-felon check after he had told Evans
that he would not be cited for the traffic violation. The check
7
Even before Rodriguez, courts observed that extending traffic stops to
perform criminal history checks may be unlawful. In United States v.
Boyce, 351 F.3d 1102, 1107 (11th Cir. 2003), for example, the officer did
not request a criminal history check “until several minutes after he had
written the warning [for a traffic violation].” Boyce held that “the criminal
history check could not be part of the original traffic stop investigation and
could not be the basis for prolonging Boyce’s detention.” Id. The “traffic
violation investigation was complete” before the officer ran the criminal
history check, and, therefore, the defendant “was free to go” unless the
officer had independent reasonable suspicion of other criminal activity.
Id.; see also United States v. Finke, 85 F.3d 1275, 1280 (7th Cir. 1996)
(rejecting a “bright line rule” permitting a criminal history check as a
“constitutional part of all or most traffic stops . . . because often criminal
history checks take longer to process than the usual license and warrant
requests, and after a certain point meaningful additional time could . . .
constitute an unreasonable detention of the average traveller”).
UNITED STATES V. EVANS 17
thus was inversely related to officer safety; that is, Zirkle
would have been safer had he let Evans go once he
determined there was no reason to cite him. “[S]afety
precautions taken in order to facilitate” investigation of other
crimes, Rodriguez held, do not relate to an officer’s traffic
mission. Id. Such unrelated “precautions,” which do not
“stem[] from the mission of the stop itself,” therefore cannot
justify extending a traffic stop. Id.8
B.
Rodriguez squarely controls this case in another respect
as well. A “dog sniff,” Rodriguez explained, “is not fairly
characterized as part of the officer’s traffic mission.” Id. at
1615. Consequently, a dog sniff that “‘prolong[s] [the stop]
beyond the time reasonably required to complete th[e]
mission’ of issuing a ticket for” the traffic offense, “violates
the Constitution’s shield against unreasonable seizures”
unless the officer had independent reasonable suspicion to
support such a prolongation. Id. at 1612 (third alteration in
original) (quoting Caballes, 543 U.S. at 407).
The dog sniff Rodriguez held unconstitutional was
essentially identical to the one conducted in this case. As did
the officer in Rodriguez, Zirkle stopped Evans for a routine
traffic violation and conducted several traffic-related
8
In his motion to suppress, Evans argued that Zirkle “exceeded the
purpose of the [traffic] stop by . . . continuing to detain [] Evans to run his
criminal history and then to see if he was registered to his current
address.” The district court did not specifically address this prolongation,
however, as it resolved the motion on other grounds. On remand, the
district court may consider whether Zirkle had independent reasonable
suspicion that Evans was an unregistered felon, so as to permit the
extension of the stop to conduct the ex-felon registration check.
18 UNITED STATES V. EVANS
inquiries. Once he received the results of the ex-felon
registration check, Zirkle gave Evans a warning, shook
Evans’ hand, returned his license and paperwork, and
informed him that “you’re good to go.” As in Rodriguez,
once the warning was issued, Zirkle’s “mission . . . to address
the traffic violation that warranted the stop, and attend to
related safety concerns” was complete. Id. at 1614 (citation
and internal quotation marks omitted). Yet, Zirkle then re-
initiated questioning, asking Evans whether contraband was
present in the vehicle. When Evans refused to provide
consent to a search, Zirkle, again as in Rodriguez, told Evans
to wait outside his car until the officers conducted a dog sniff.
“[T]he Government’s endeavor to detect crime in general
or drug trafficking in particular,” Rodriguez held, cannot
justify prolonging an ordinary traffic stop to conduct a canine
narcotics investigation. Id. at 1616. Such “[o]n-scene
investigation into other crimes . . . detours” from an officer’s
traffic mission. Id. Like the ex-felon registration check, the
dog sniff was, under Rodriguez, a task “aimed at detect[ing]
evidence of ordinary criminal wrongdoing,” rather than an
“ordinary inquir[y] incident to [the traffic] stop.” Id. at 1615
(first and third alterations in original) (internal quotation
marks omitted). Prolonging the traffic stop to perform this
task, without independent reasonable suspicion, was therefore
unlawful.
IV.
We recognize that an officer may prolong a traffic stop if
the prolongation itself is supported by independent reasonable
suspicion. See id. at 1615; United States v. Mendez, 476 F.3d
1077, 1080 (9th Cir. 2007). Reasonable suspicion “exists
when an officer is aware of specific, articulable facts which,
UNITED STATES V. EVANS 19
when considered with objective and reasonable inferences,
form a basis for particularized suspicion.” United States v.
Montero–Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en
banc). “We review reasonable suspicion determinations de
novo, reviewing findings of historical fact for clear error and
giving ‘due weight to inferences drawn from those facts by
resident judges and local law enforcement officers.’” United
States v. Valdes-Vega, 738 F.3d 1074, 1077 (9th Cir. 2013)
(en banc) (quoting United States v. Cotterman, 709 F.3d 952,
968 (9th Cir. 2013) (en banc)).
Here, the government argues that, in the course of the
traffic stop, Zirkle developed reasonable suspicion that the
car contained contraband. In particular, it points to the odor
of methamphetamine, McConnell’s nervousness, Evans’
changing story about his travels and prior convictions, and the
information Beard supplied to Zirkle. Evans disputes
whether these facts are supported by the record, and contends
that, even if so, they are insufficient to establish reasonable
suspicion as to the contraband. Evans also argues that, in any
event, there was no reasonable suspicion to justify the eight
minute delay for the ex-felon registration check.
In granting Evans’ motion to suppress, the district court
did not make the “findings of historical fact” and the
“inferences drawn from those facts” critical to resolving the
parties’ dispute concerning reasonable suspicion. Id.Whether Zirke possessed independent reasonable suspicion
to prolong the detention depends in part on whether the
district court finds the officers’ testimony concerning the
relevant facts credible, and in part on whether the information
the officers had provided reasonable suspicion justifying the
dual delay. We therefore remand to the district court for
consideration in the first instance of whether Zirkle’s
20 UNITED STATES V. EVANS
prolongation of the traffic stop was supported by independent
reasonable suspicion.
VACATED AND REMANDED.