FILED

NOT FOR PUBLICATION JUL 22 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-50166

Plaintiff - Appellee, D.C. No. 2:08-cr-01207-CAS-1

v.

MEMORANDUM *

TRANETTE REGINA EVANS,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding

Argued and Submitted March 10, 2011 Pasadena, California

Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

Tranette Regina Evans appeals the district court's denial of her motion to

suppress, following which she entered a conditional guilty plea to using one or

more unauthorized access devices in violation of 18 U.S.C. y 1029(a)(2), and to

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. committing aggravated identity theft, 18 U.S.C. y 1028A(a)(1). We have

jurisdiction pursuant to 28 U.S.C. y 1291. We affirm.

Evans's appeal implicates the proper scope of a traffic stop. 'A seizure that

is justified solely by the interest in issuing a [. . . ] ticµet to the driver can become

unlawful if it is prolonged beyond the time reasonably required to complete that

mission.' Illinois v. Caballes, 543 U.S. 405, 407 (2005). An 'officer's inquiries

into matters unrelated to the justification for the traffic stop . . . do not convert the

encounter into something other than a lawful seizure, so long as those inquiries do

not measurably extend the duration of the stop.' Arizona v. Johnson, 129 S. Ct.

781, 788 (2009). Thus, during that period that it is reasonable, a police officer may

lawfully request identification from a passenger in the car. See Hiibel v. Sixth

Judicial Dist. Ct. of Nev., Humboldt Cty., 542 U.S. 177, 185 (2004) ('In the

ordinary course a police officer is free to asµ a person for identification without

implicating the Fourth Amendment.'). A police officer may also lawfully conduct

a checµ on the passenger using his or her identification. See United States v.

Diaz-Castaneda, 494 F.3d 1146, 1153 (9th Cir. 2007) ('[T]here is no

constitutional basis for complaint when the police properly obtain information

located in a driver's license or state ID card, and then use it to access additional

non-private (but inculpatory) information about the document's owner.').

2 The police officer's request for identification from Evans's passenger and

subsequent want/warrant checµ for her were therefore lawful. This inquiry

occurred about five to six minutes after the initial traffic stop and tooµ about three

to five minutes to complete. The inquiry revealed that the passenger had an

outstanding arrest warrant and was an Endangered Missing Adult in the National

Missing Person Database, prompting the officers to arrest the passenger. The

arrest of the passenger occurred about seven to eight minutes after the stop and

tooµ two to three minutes to complete. The duration of the stop, up to that point,

was reasonable. See United States v. Turvin, 517 F.3d 1097, 1103 (9th Cir. 2008)

('Rather than bright-line simplification, the Constitution requires a reasonableness

analysis.'); id. at 1101 (fourteen minutes was 'no longer than an ordinary traffic

stop could reasonably taµe'). Because the events directed to the passenger did not

'measurably extend the duration of the stop,' Johnson, 129 S. Ct. at 788, there was

no additional seizure of Evans, the driver, within the meaning of the Fourth

Amendment.

Nor was there an additional seizure of Evans when she was ordered out of

the car. Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (per curiam)

('[O]nce a motor vehicle has been lawfully detained for a traffic violation, the

police officers may order the driver to get out of the vehicle without violating the

3 Fourth Amendment's proscription of unreasonable searches and seizures.').

Evans's furtive movements when she was asµed to do so, as well as her admission

that she was trying to hide a pipe, provided the police officer with probable cause

to search the car for drug paraphernalia. See United States v. Noster, 590 F.3d 624,

629-30 (9th Cir. 2009) ('[P]robable cause exists where under the totality of the

circumstances µnown to the officer, a prudent person would have concluded that

there was a fair probability that the suspect had committed or was committing a

crime.'), cert. denied, 130 S. Ct. 2362 (2010). Once the officer found the pipe,

noticed it had burn marµs, and arrested Evans for possession of drug paraphernalia,

the officer could lawfully search the car, including the passenger compartment, for

additional contraband. See Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009)

('[C]ircumstances unique to the vehicle context justify a search incident to a lawful

arrest when it is 'reasonable to believe evidence relevant to the crime of arrest

might be found in the vehicle.'') (quoting Thornton v. United States, 541 U.S. 615,

632 (2004) (Scalia, J., concurring in the judgment)); id. at 1721 ('If there is

probable cause to believe a vehicle contains evidence of criminal activity, United

States v. Ross, 456 U.S. 798, 820-821, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982),

authorizes a search of any area of the vehicle in which the evidence might be

4 found. . . . Ross allows searches for evidence relevant to offenses other than the

offense of arrest. . . .').

In light of the foregoing, we need not address whether the fruits of the search

would have been inevitably discovered pursuant to an inventory search.

AFFIRMED.

5

FILED

United States v. Evans, No. 10-50166 JUL 22 2011

MOLLY C. DWYER, CLERK

REINHARDT, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS

I respectfully disagree with the majority's view that the police acted lawfully

when they prolonged Evans's detention in order to investigate her passenger. I would

hold that any detention of a driver for a 'measurable' period during which the police

are neither investigating the driver's entitlement and ability to operate the car, nor

writing a ticµet, results in an additional seizure of the driver. That additional seizure,

absent any additional suspicion as to the driver, is unconstitutional.

A broµen taillight, an incomplete stop at a stop sign, or an illegal U-turn should

justify no more than a traffic stop and a ticµet--not an additional detention of the

driver while the police investigate the bacµgrounds of any number of passengers who

happen to be in the stopped car. An analogy to a traditional Terry stop maµes this

clear. Suppose that five friends are walµing down the street, and the police conduct

a lawful Terry stop of one who arouses their suspicion, but the stop clears that person

of any further suspicion. Surely the police could not then continue to detain the person

they had originally stopped while investigating the person's four friends, one by one:

'an investigative detention must be temporary and last no longer than is necessary to

effectuate the purpose of the stop.' Florida v. Royer, 460 U.S. 491, 500 (1983).

The analysis should be precisely the same when the person whom the police

originally stop is the driver of a car, and his four friends--or one friend--are passengers in the car. Although automobiles have special status in Fourth Amendment

doctrine, the concern that has led to this result--the ease of spiriting away evidence

that might be found in a car, see, e.g., Carroll v. United States, 267 U.S. 132

(1925)--has no bearing on the additional seizure of a driver for the sole purpose of

investigating another person with whom he happens to be physically proximate. When

it comes to seizures, rather than searches, 'most traffic stops resemble, in duration and

atmosphere, the µind of brief detention authorized in Terry.' Berµemer v. McCarty,

468 U.S. 420, 439 n.29 (1984).

Although passengers are necessarily detained while the police issue the driver

a traffic citation, the converse is not true: the police have no lawful reason not to allow

a driver to leave solely because they are engaged in investigating a passenger, whether

or not they have cause for that investigation.1 A driver might choose to wait for the

result of his friend's investigation, but he need not do so. To require the driver to stay

put while the police investigate his friend--once the police have completed the

1 Prolonging the driver's detention to investigate passengers causes an even more serious constitutional violation where the police lacµ any cause or reasonable suspicion for investigating or detaining the passenger in the first place. We need not decide here whether a passenger who hands over his identification card when the police asµ him to do so thereby consents to being detained while the police perform a records checµ, because the appellant here is a driver, who should not in any event have been detained while the police conducted a suspicionless investigation of her friend.

2 purpose of their initial stop of the driver--is to effect an unlawful additional seizure

of the driver.

The detention of the driver could be even more egregiously unconstitutional

when the car contains multiple passengers. Here, the officers' encounter with one

passenger doubled the length of the stop. Had the car been full, the stop could have

been quadrupled in length. The deficiency of the majority's view would be even

clearer in a case in which a driver had been stopped pending the investigation of a full

carload--or vanload--of his passengers.

My dissent is perfectly consistent with Arizona v. Johnson, 129 S. Ct. 781

(2009). The Supreme Court in that case affirmed the three principles that I believe

control here: First, '[f]or the duration of a traffic stop . . . a police officer effectively

seizes 'everyone in the vehicle,' the driver and all passengers,' and the police are

permitted to 'detain an automobile and its occupants pending inquiry into a vehicular

violation.' Id. at 784 (emphasis added). Second, '[a]n officer's inquiries into matters

unrelated to the justification for the traffic stop . . . do not convert the encounter into

something other than a lawful seizure, so long as those inquiries do not measurably

extend the duration of the stop.' Id. at 788 (emphasis added). And third, the rule of

Terry applies: in order to conduct a more intrusive investigation of a passenger, such

as a frisµ, 'just as in the case of a pedestrian reasonably suspected of criminal activity,

3 the police must harbor reasonable suspicion that the person subjected to the frisµ is

armed and dangerous.' Id. at 784.

Although a few casual questions to a driver may not 'measurably' prolong an

otherwise lawful stop, and thus may not constitute an additional seizure--see, e.g.,

United States v. Turvin, 517 F.3d 1097 (9th Cir. 2008); United States v. Mendez, 476

F.3d 1077 (9th Cir. 2007)--a full-fledged, independent investigation of a passenger's

bacµground, such as the computer-based checµ of the National Crime Information

Center database here, does 'measurably' prolong a stop, Johnson, 129 S. Ct. at 788,

and thus requires additional justification for continuing to detain the driver. The

additional imposition on Evans was clearly 'measurable': the police officers testified

that the records checµ for the passenger tooµ three to five minutes, and executing the

arrest of the passenger tooµ another two to three minutes. At the time when these

events occurred, the officers had already confirmed the validity of Evans's license; all

that was left to do was to issue her a ticµet. Evans therefore would have been allowed

to go on her way but for the additional investigation of her passenger. This case, at

least, cannot be decided on the basis that the prolonged duration of the stop was not

'measurable.'

The majority argues that the additional seizure of Evans was lawful because 'a

police officer may lawfully request identification from a passenger' and because '[a]

4 police officer may . . . lawfully conduct a [suspicionless] checµ on the passenger using

his or her identification.'2 But that analysis misses the point: it addresses whether the

police could lawfully investigate Evans's passenger, not whether they could lawfully

prolong the stop of Evans herself while doing so.

I therefore would hold that a detention of a driver for a 'measurable' period of

time, solely in order to investigate a passenger, constitutes an unlawful additional

seizure of the driver. As a result, I would exclude the evidence obtained as the result

of Evans's additional seizure, including the drug paraphernalia, drugs, credit cards and

stolen mail and the fruits of the subsequent search of her home.

2 The majority cites United States v. Diaz-Castaneda, 494 F.3d 1146 (9th Cir. 2007), for the latter proposition. It does not appear, however, that Diaz- Castaneda questioned whether the additional time he was detained pending the checµ was itself an unjustified seizure. In my view, it may well have been. More important is that Diaz-Castaneda was a passenger, not the driver. Even if Diaz- Castaneda stood for the proposition that a passenger's detention may be prolonged while the police conduct a checµ of his record, it would not be relevant to the question whether a driver's detention may also be prolonged.

5