[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JAN 04 2001 THOMAS K. KAHN Nos. 99-11537 and 99-11538 CLERK ________________________
D. C. Docket No. 98-14064-CR-JCP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERT LEE PURCELL, SHON PURCELL,
Defendants-Appellants.
________________________
Appeals from the United States District Court for the Southern District of Florida _________________________
(January 4, 2001)
Before TJOFLAT, HILL and POLITZ*, Circuit Judges.
_________________ *Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
HILL, Circuit Judge: Albert Purcell and Shon Purcell were indicted for conspiracy to possess with
intent to distribute cocaine base, in violation of 21 U.S.C. § 846, and possession
with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). Both
defendants moved to suppress the cocaine base that was seized in a search of their
car. After the motion was denied, both defendants pled guilty but reserved their
right to bring this appeal of the denial.
I.
On Saturday, November 7, 1998, Albert Purcell and Shon Purcell were
traveling on I-95, driving at 70 miles per hour, less than seven car lengths behind
the car in front of them.1 Deputy James Warren of the Martin County Sheriff’s
office observed their vehicle and stopped it for following too closely.2
Deputy Warren and Shon Purcell, the driver of the car, both stepped out of
their vehicles. Deputy Warren asked to see Purcell’s driver’s license and
registration. Purcell handed the deputy his driver’s license and a rental agreement
for the car he was driving. The rental agreement was not in Shon Purcell’s name,
and although he was listed as an additional driver, his name had been crossed out.
1 These facts were established either in the videotape of the incident or by testimony at the hearing on the motion to suppress. They are not contested. 2 Section 316.0895 of the Florida Statutes provides that “[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon, and the condition of, the highway.”
2 Deputy Warren also obtained identification from two other people in the
stopped car, Albert Purcell and Shon’s wife, Sharolyn, and he used his police radio
to request a computer check on the car’s occupants. While he was waiting for this
information, Deputy Warren began writing a warning citation to Shon Purcell for
following too closely. Prior to asking Purcell to sign the citation, Deputy Warren
asked him if he had ever been arrested. Purcell replied that he had and that the
arrests were drug related. The deputy then asked Purcell if he had “any narcotics,
weapons, firearms, contraband, anything like that in the car.” Purcell replied that
he did not. At this point, approximately fourteen minutes into the traffic stop,
Shon Purcell consented to a search of the car, saying “I’ve got nothing to hide.”3
At about the same time, Deputy Robert Kohl arrived at the scene.4 Prior to
searching the car, the two deputies “patted down” the Purcells to ensure they were
not armed and then told them to stand by the patrol car while the deputies searched
the car. During the search, Deputy Kohl observed white powder on the floorboard
of the front passenger compartment. He also observed a bag protruding from
underneath the dashboard, above the white powder, which appeared to contain
crack cocaine.
3 Although there is disagreement over whether the deputy asked or Purcell volunteered, there is no dispute that Purcell consented to the search. 4 Deputy Warren called for “routine” backup upon initiating the stop.
3 After finding the cocaine, Deputy Kohl and Deputy Warren placed Shon and
Albert Purcell under arrest. Deputy Warren put the Purcells in the back of his
patrol car. The audio microphone feature of his car’s video camera was on and it
recorded the Purcells discussing who should take responsibility for the cocaine and
what they should say.
After their motion to suppress was denied, the Purcells pled guilty, but
preserved their right to appeal the denial. On appeal, they argue that the cocaine
should have been inadmissible against them because the search of their car was the
product of an unconstitutional detention and involuntary consent.5
II.
The Fourth Amendment protects individuals from unreasonable search and
seizure. A traffic stop is a seizure within the meaning of the Fourth Amendment.
Delaware v. Prouse, 440 U.S. 648, 653 (1979). Because a routine traffic stop is
only a limited form of seizure, it is more analogous to an investigative detention
than a custodial arrest. See Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
5 The Purcells also argue that the initial stop was unsupported by probable cause that a traffic violation had occurred. The Purcells testified that their car was about three car lengths behind the vehicle ahead of it. The district court found that such a distance could reasonably have been interpreted by Deputy Warren as violating the statute. A law enforcement officer may legally stop an automobile traveling on the highways if he has probable cause to believe that a traffic violation has occurred. See Whren v. United States, 517 U.S. 806, 810 (1996). We find no error in this result.
4 Therefore, we analyze the legality of these stops under the standard articulated in
Terry v. Ohio, 392 U.S. 1 (1968). United States v. Sharpe, 470 U.S. 675 (1985);
United States v. Tapia, 912 F.2d 1367, 1370 (11th Cir. 1990); United States v.
Hardy, 855 F.2d 753, 758 (11th Cir. 1988). Under Terry, an officer’s actions
during a traffic stop must be “reasonably related in scope to the circumstances
which justified the interference in the first place.” 392 U.S. at 20 (emphasis
added). Furthermore, the duration of the traffic stop must be limited to the time
necessary to effectuate the purpose of the stop. United States v. Pruitt, 174 F.3d
1215, 1219 (11th Cir. 1999). The traffic stop may not last “any longer than
necessary to process the traffic violation” unless there is articulable suspicion of
other illegal activity. United States v. Holloman, 113 F.3d 192, 196 (11th Cir.
1997).
The Purcells claim that their detention exceeded both the duration and the
scope of a constitutional traffic stop. They contend that the duration of a
permissible traffic stop was exceeded when Deputy Warren prolonged the
detention to wait for information on the criminal histories of the car’s occupants.
They contend that the scope of the stop was impermissibly enlarged when the
officer asked Shon Purcell whether he had any “firearms, guns, or narcotics” in the
5 car. Both of these contentions are issues of first impression in this circuit. We
shall consider each of them in turn.
A. The length of the detention
The district court found, and the videotape confirms, that approximately
fourteen minutes elapsed between the time Deputy Warren and Shon Purcell exited
their cars and the point at which Purcell consented to a search.6 A detention of
fourteen minutes is certainly not unreasonable on its face. The Purcells argue,
however, that the officer had finished writing the warning citation several minutes
before, but prolonged the detention in order to wait for the results of the computer
check on the Purcells’ criminal histories. They argue that the detention became
unconstitutional when it lasted longer than necessary to process the traffic
violation. Holloman, 113 F.3d at 196.
It is well established that officers conducting a traffic stop may “take such
steps as [are] reasonably necessary to protect their personal safety.” United States
v. Hensley, 469 U.S. 221, 235 (1985). This includes conducting a protective search
of the driver, Pennsylvania v. Mimms, 434 U.S. 106, 111, 112 (1977), the
passengers, id., and the vehicle, Michigan v. Long, 463 U.S. 1032, 1049-51(1983).
The officer may seize any contraband, including weapons, in plain view. Id. at
6 At that point their encounter either became consensual, if the consent was valid, or else it became unconstitutional when the officer began a warrantless search.
6 1049. The officer may use a flash light to illuminate a vehicle’s dark interior.
United States v. Dunn, 480 U.S. 294, 305 (1987). The officer may also prolong the
detention to investigate the driver’s license and the vehicle registration, Prouse,
440 U.S. at 657-59, and may do so by requesting a computer check. United States
v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999); Pruitt, 174 F.3d at 1219. See also
United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998); Foote v.
Dunagan, 33 F.3d 445, 448-50 (4th Cir. 1994); United States v. Shabazz, 993 F.2d
431, 437 (5th Cir. 1993); McFadden v. United States, 814 F.2d 144, 147 (3d Cir.
1987).
Many courts have recognized that knowledge of the criminal histories of a
vehicle’s occupants will often be relevant to that safety. United States v. Wood,
106 F.3d 942, 945 (10th Cir. 1997) (criminal history check justified for officer
safety); United States v. Finke, 85 F.3d 1275, 1280 (7th Cir. 1996)(where the
request for a criminal history is reasonably contemporaneous with the license and
warrant check, it is both reasonable and justified); United States v. Crain, 33 F.3d
480, 483 (5th Cir. 1994) (approving computer check which included request for
criminal history); United States v. McManus, 70 F.3d 990, 993 (8th Cir. 1995)
(approvingly noting use of National Crime Information Center (NCIC) criminal
history check in routine traffic stops to support using of same check in vehicle
7 identification number investigation).7 In the context of “the tragedy of the many
officers who are shot during routine traffic stops each year, the almost
simultaneous computer check of a person’s criminal record, along with his or her
license and registration, is reasonable and hardly intrusive.” United States v.
McRae, 81 F.3d 1528, 1535-36 n.6 (10th Cir. 1996).
We agree. The request for criminal histories as part of a routine computer
check is justified for officer safety. It is both reasonable and minimally intrusive.
Indeed, in most cases, the occupants of the car will not even know what
information has been requested as part of the computer check. The inclusion of
such a request in an otherwise valid computer check does not render it
unconstitutional.
In this case, the officer testified without contradiction that highway stops on
Interstate 95 are “very high risk.” He requested a criminal history check as part of
his routine computer check. He was still waiting for the results of the computer
check and had not yet given the citation to Purcell to sign when he asked for and
7 The Purcells offer only one case in support of their contention that a request for criminal histories is irrelevant and any delay caused by waiting for the information transforms a legal traffic stop into an illegal de facto arrest, United States v. Lee, 73 F.3d 1034 (10th Cir. 1996). Lee, however, does not support this conclusion. Lee holds that knowledge of a person’s criminal history does not establish probable cause to further detain and search his car. Id. at 1039. But that is not the issue here. The government does not claim that knowledge of the Purcells’ extensive criminal histories established probable cause to detain the Purcells or search their car.
8 received Purcell’s consent to search the vehicle. The traffic stop, therefore, had not
concluded prior to the consent to search, and the detention continued to be
supported by the facts that justified its initiation. See United States v. Zucco, 71
F.3d 188, 190 (5th Cir. 1995) (detention supported by facts justifying its initiation
while officer waits for computer check); Shabazz, 933 F.2d at 437(detention does
not exceed its original scope while officers waiting for results of computer check).
Although some of these cases imply that requesting a criminal history check
is a reasonable, constitutional part of all or most traffic stops, see McRae, 81 F.3d
at 1536 n.6, we believe that, as in most issues relating to the constitutionality of a
traffic stop, such bright-line rules are inadvisable. The Supreme Court has “long
held that the ‘touchstone of the Fourth Amendment is reasonableness.’” Ohio v.
Robinette, 519 U.S. 33, 39 (1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250
(1991)). Reasonableness is measured by examining the totality of the
circumstances. Id. Rigid time limitations and bright-line rules are generally
inappropriate. Sharpe, 470 U.S. at 685; Hardy 855 F.2d at 759.
Under some circumstances a criminal record request might lengthen a traffic
stop beyond what is reasonable in a particular case. After a certain point, this
might constitute an unreasonable detention. See Finke, 85 F.3d at 1280 (“Unless
technology permits criminal record requests to be conducted reasonably
9 contemporaneously with the license and warrant checks normally solicited, we are
reluctant to say such checks are always reasonable or justified in the average traffic
stop.”) So long as the computer check does not prolong the traffic stop beyond a
reasonable amount of time under the circumstances of the stop, the inclusion of a
request for criminal histories does not constitute a Fourth Amendment violation.
In this case, the district court determined that Shon Purcell consented to a
search of his car approximately fourteen minutes into the traffic stop. These initial
fourteen minutes, therefore, are the only ones relevant to a determination whether
the duration of the traffic stop was reasonable.8 Fourteen minutes is not an
unreasonable amount of time for a traffic stop. We have approved traffic stops of
much longer duration. See Hardy, 855 F.2d at 761 (approving traffic stop of fifty
minutes duration). See also United States v. Shareef, 100 F.3d 1491, 1502 (10th
Cir. 1996) (30 minute wait for computer check during a traffic stop reasonable).
Cf. United States v. Place, 462 U.S. 696, 709 (1983) (90 minutes “probably” too
long for a Terry stop).
8 Once Shon Purcell agreed to the search, the remainder of the detention was consensual so long as the scope of the search did not exceed the consent given. The Purcells do not raise any issue regarding the scope of the search.
10 The district court also found that the deputy appeared to be waiting on
further information at approximately the eleven minute mark.9 Therefore, the
request for the criminal histories prolonged the traffic stop, at most, by
approximately three minutes. We conclude that this delay was de minimis in the
context of the totality of the circumstances of this traffic stop. Accordingly, we
hold that the duration of the traffic stop did not violate the Fourth Amendment.
B. The scope of the traffic stop
The Purcells argue that Deputy Warren exceeded the scope of a permissible
traffic stop when he asked them whether they had guns, firearms, or narcotics in
their car. They rely on a line of cases in the Tenth Circuit which severely limit the
kind of questions which are permissible in a routine traffic stop, including a
limitation on questions regarding contraband and weapons. See United States v.
Holt, 229 F.3d 931, 940 (10th Cir. 2000) (question exceeds reasonable scope of
traffic stop absent reasonable suspicion of illegal activity or reasonable safety
concerns); United States v. Jones, 44 F.3d 860, 872 (10th Cir. 1995) (holding that
questions regarding transportation of contraband, are justified only if the officer
has reasonable suspicion of illegal activity); United States v. Turner, 928 F.2d 956,
9 This finding is supported by the videotape
11 959 (10th Cir. 1991) (holding that officer must have reasonable and articulable
suspicion to question the driver about drugs or weapons).
On the other hand, the Fifth Circuit has held that “a police officer’s
questioning, even on a subject unrelated to the purpose of the top, is [not] itself a
Fourth Amendment violation.” Shabazz, 993 F.2d at 436. “Mere questioning . . .
is neither a search nor a seizure.” Id. (quoting Florida v. Bostick, 501 U.S. 429,
434 (1991)). In their view, the issue regarding “unrelated” questions concerns not
the content of the questions, but their impact on the duration of the stop:
Thus, when a police officer reasonably suspects only that someone is carrying a gun and stops and frisks that person, the officer, after finding nothing in a pat down, may not thereafter further detain the person merely to question him about a fraud offense. This is not because the questioning itself is unlawful, but because at that point suspicion of weapons possession has evaporated and no longer justifies further detention.
Id. Therefore, only unrelated questions which unreasonably prolong the detention
are unlawful; “detention, not questioning, is the evil at which Terry’s [prohibition]
is aimed.” Id. Questions which do not extend the duration of the initial seizure do
not exceed the scope of an otherwise constitutional traffic stop. In Shabazz, the
court approved a traffic stop during which the officer questioned the occupants of
the car about their travel plans, holding that the duration of a routine traffic stop
12 was not exceeded because the officer was waiting for the results of the computer
check when he asked the “unrelated” questions.10
We have concluded that, under either of these tests, Deputy Warren’s
question about guns or drugs was permissible. He had stopped a vehicle in a very
high crime corridor, where armed drug couriers ply their trade daily. The driver,
Shon Purcell, produced a rental car contract signed by a party not in the car.
Although it listed Shon Purcell as an additional driver, his name had been
scratched out. While writing the citation, he asked Shon Purcell if he had a record
and Purcell admitted that he did and that it was drug related. At that point, even if
his suspicions did not arise to the level of “articulable,”11 reasonable safety
concerns justified Deputy Warren in asking Purcell whether he had any firearms,
guns or drugs in the car. See McRae, 81 F.3d at 1536 (vague rental car
10 In Walker, the Tenth Circuit held that questioning unrelated to the circumstances of the initial stop rendered the detention illegal, but noted that “this case would be changed significantly if the officer asked the same questions while awaiting the results of an NCIC . . . license or registration inquiry.” 933 F.2d at 816 n.2 (emphasis added). After Holt, it is unclear whether this dicta carries any weight. 229 F.3d at 944 n.4 (questioning unrelated to purpose of stop unconstitutional even though officer still writing out citation and computer check not completed). 11 Deputy Warren testified that, based upon his training and experience, he was suspicious of the circumstances involved in this traffic stop: third-party car, Purcells name scratched out as valid driver, point of origin in Miami, en route to North Carolina, woman and baby in car (“drug couriers often put women and babies in car to disguise their activity”) and criminal records involving drugs and guns. The government does not argue and we do not decide whether these circumstances would have supported a finding of “articulable suspicion.”
13 arrangements plus knowledge of prior criminal involvement permit the officer to
ask about contraband and weapons).
Furthermore, the question regarding weapons was asked while the officer
was still writing out the citation and awaiting the results of the computer check.12
Thus, the unrelated question did nothing to extend the duration of the initial, valid
seizure. The detention continued to be supported by the facts that justified its
initiation. See Shabazz, 993 F.2d at 437. Nor was the detention of an excessively
long duration. The total time consumed by the traffic stop, prior to the consent to
search, was fourteen minutes. This duration imposed “no significant Fourth
Amendment hardship”. See Shabazz, 993 F.2d at 438; see also Hardy, 855 F.2d at
761 (fifty minute traffic stop not too long). Under these circumstances, the officer’s
question did not offend the Constitution.
III.
The government concedes that there was not sufficient probable cause to
support a warrantless search of the Purcells’ car. Therefore, even if their detention
was not unconstitutional, the search of their car was illegal unless Shon Purcell
voluntarily consented to it. The Purcells claim that he did not.
12 Shon Purcell testified that Deputy Warren told him he was “waiting on information” at the point he gave his consent to the search.
14 An officer conducting a routine traffic stop may request consent to search
the vehicle. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); Simmons, 172
F.3d at 778. A consensual search is constitutional if it is voluntary; if it is the
product of an “essentially free and unconstrained choice.” Schneckloth, 412 U.S.
at 225. See also Hudson v. J.T. Hall, 231 F.3d 1289, 1296 (11th Cir. 2000) (citing
United States v. Garcia, 890 F.2d 355, 360 (11th Cir. 1989)). In assessing
voluntariness, the inquiry is factual and depends on the totality of the
circumstances. Schneckloth, 412 U.S. at 248-49. A district court’s determination
that consent was voluntary is a finding of fact, that will not be disturbed on appeal
absent clear error. Garcia, 890 F.2d at 359 (where voluntariness determined from
conflicting testimony, district court’s finding affirmed absent clear error).
In evaluating the totality of the circumstances underlying consent, the court
should look at several indicators, including the presence of coercive police
procedures, the extent of the defendant’s cooperation with the officer, the
defendant’s awareness of his right to refuse consent, the defendant’s education and
intelligence, and the defendant’s belief that no incriminating evidence will be
found. Hudson, id.; see also Shabazz, 993 F.2d at 438.
In this case, there was no claim that Officer Warren threatened force or
violence against the Purcells or even that he was verbally abusive. Neither was
15 there any claim that Officer Warren suggested to Shon Purcell that he had no right
to refuse. Shon Purcell testified that Deputy Warren did not threaten him, and that
he told Warren that he could look in the car because “I got nothing to hide.”
Based upon these facts, the district court concluded that Shon Purcell voluntarily
consented to the search of his vehicle.
Our review of the record and the videotape support this conclusion. There
is no indication on the videotape that Shon Purcell was intimidated or browbeaten
into consenting to the search. The encounter appears quite low-key and
professional.
There is no indication that Purcell did not understand he could refuse the search.
Thus, the district court’s finding that Purcell’s consent was voluntary does not
appear to be clearly erroneous.
The Purcells contend, however, that, despite all this, we must hold that the
consent was involuntary. They suggest two reasons why. First, Deputy Warren
had not returned Purcell’s driver’s license when Purcell consented to the search.
Since Purcell was not “free to go” when he consented, the Purcells contend that his
16 consent was involuntary.13 They also argue that Purcell’s consent was involuntary
because Deputy Warren did not specifically inform him that he could refuse.
We disagree. The Supreme Court has specifically rejected the argument that
consent to a search cannot be valid unless the defendant knew that he had a right to
refuse the request:
While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.
Schneckloth, 412 U.S. at 227. “And just as it ‘would be thoroughly impractical to
impose on the normal consent search the detailed requirements of an effective
warning,’ so too would it be unrealistic to require police officers to always inform
detainees that they are free to go before a consent to search may be deemed
voluntary.” Robinette, 519 U.S. at 39-40 (citations omitted) (quoting Schneckloth,
412 U.S. at 231).
13 The Purcells cite two cases from our circuit in support of this contention: Pruitt, 174 F.3d 1215 and Tapia, 912 F.2d 1367. Neither of these cases, however, even involved the issue of the voluntariness of the defendant’s consent. In Pruitt, the defendant did not consent to the search, 174 F.3d at 1218, and in Tapia, the government did not assert that the defendant voluntarily consented to the search. 912 F.2d at 1369. The Purcells also claim that this is the rule in the Tenth Circuit. Hunnicutt, 135 F.3d at 1349 (consent to search not voluntary when officer retained driver’s license). But we are not certain that this is a rule there either. See United States v. Soto, 988 F.2d 1548, 1557-58 (10th Cir. 1993) (consent to search voluntary even though officer retained license and registration at the time consent given).
17 Additionally, whether the officer had returned the driver’s license of the
defendant at the time the defendant consented to the search is a factor we shall
consider in evaluating the totality of the circumstances, but it is not a litmus test for
voluntary consent. See Bostick, 501 U.S. at 435-36 (even if detainee does not feel
“free to leave” under certain circumstances, consent may still be voluntary). The
undisputed testimony was that Deputy Warren was giving the citation to Shon
Purcell to sign when he asked for and received consent to search the vehicle.
Under these circumstances, it was not unreasonable for the officer to continue to
have Purcell’s license in his possession. Nor did it indicate anything more than
that the citation writing process was not yet complete. We hold, therefore, that
Shon Purcell voluntarily consented to the search of his vehicle.
IV.
For the foregoing reasons, we conclude that the traffic stop at issue in this
case did not offend the Constitution in either its duration or its scope. We also
hold that the consent to search the vehicle in this case was given freely and
voluntarily. Accordingly, the judgment of the district court is due to be
AFFIRMED.