On June 8, 2020, the Tenth Circuit Court of Appeals decided the United States v. Morales[i], which serves as an excellent review of the law related to the “scope” of an investigation. The relevant facts of Morales, taken directly from the case, are as follows:
1. Initial Traffic Stop (Minutes 1 to 10)
At around 1 a.m. on March 9, 2019, Officer Mitchell Phillips of the Pryor Police Department stopped a Toyota driven by Mr. Morales on an interstate highway for activating fog lamps in violation of 47 Okla. Stat. Ann. § 12-217.2 Officer Phillips asked Mr. Morales and Victor Ybarra Robles, the sole passenger, for their driver’s licenses and proof of insurance. When they produced the licenses but not proof of insurance, Officer Phillips told them he would search the Oklahoma Law Enforcement Telecommunications System (“OLETS”) through his in-cruiser computer system. OLETS provides individuals’ “address[es], descriptions, their driving license status, their names, identifiers, and occasionally if they have . . . warrants.” App. at 133.
Officer Phillips brought Mr. Morales to the police cruiser [*3] for questioning and began running the OLETS search. Mr. Morales said that he and Mr. Robles owned a cleaning company and were driving to Springfield, Missouri for work. He provided inconsistent answers about whether he knew Mr. Robles beyond a first-name basis. Mr. Morales admitted to prior convictions for automobile burglary and possession of 116 kilograms of marijuana, Vid. at 3:23-54, and said he served a four-year federal sentence for the latter offense, id. at 5:36-50. He denied ever crossing the United States-Mexico border. Id. at 4:04-07. Officer Phillips said that Mr. Morales showed signs of “extreme nervousness,” including “[h]eavy breathing” and “neck thumping.” App. at 99.
The OLETS search yielded no insurance information, though it revealed that Yolanda Robles held the car’s title and that Mr. Morales had no outstanding warrants. Officer Phillips exited his cruiser and returned to the Toyota to question Mr. Robles. At minute 10, Mr. Robles confirmed that his wife, Yolanda, owned the vehicle.
Officer Phillips testified that, by this point, he suspected Mr. Morales and Mr. Robles were engaged in illegal drug activity.
2. Continued Detention Based on Suspicion of Drug Trafficking (Minutes [*4] 10 to 32)
a. Further questioning of Mr. Robles (minutes 10 to 17)
Mr. Robles told Officer Phillips that they were driving to Joplin, Missouri. He also provided a different name for their cleaning company. He admitted that he had “deal[t] drugs” in the past, Vid. at 10:18, and had been arrested for conspiracy to distribute three kilograms of cocaine, id. at 10:47-54. When asked if he had been to Mexico recently, Mr. Robles said he had been “in and out” of Mexico on Monday, and then corrected his answer to “Wednesday.” Id. at 14:36-15:00. Officer Phillips returned to the police cruiser and briefly spoke with Mr. Morales.
b. Fifteen-minute EPIC call (minutes 17 to 32)
Seventeen minutes into the encounter, Officer Phillips called EPIC, a national law enforcement database that provides information about border crossings and criminal history. See App. at 122-23. During the first three minutes of the call, he provided the men’s identifying information to EPIC. Vid. at 17:30-20:26. After about an 8.5-minute wait, EPIC called back and spoke with Officer Phillips for three minutes. Id. at 28:58-31:48. He testified at the suppression hearing that EPIC provided information about Mr. Morales’s and Mr. Robles’s “criminal histories [*5] . . . [and] their recent crossings” that confirmed their prior answers. App. at 123-24 (explaining EPIC’s information “wasn’t anything [the men] didn’t already tell [him]”). During the call, Officer Phillips retained the driver’s licenses and did not otherwise speak to Mr. Morales.
3. Consent and Search (Post-Minute 32)
Thirty-two minutes into the encounter, Officer Phillips returned the driver’s licenses and said he “wasn’t going to write any citations or warnings.” Vid. at 32:05-09. He requested and obtained both men’s consent to search the Toyota. The search uncovered four vacuum-sealed bags containing a total of 4.11 kilograms of methamphetamine. Officer Phillips then arrested both men.[ii]
Morales was charged under federal law with conspiracy to distribute methamphetamine. He filed a motion to suppress the evidence and argued that the EPIC check impermissibly extended the length of the investigation by exceeding the scope of the stop because Mr. Robles had already admitted that he recently crossed the border. The district court agreed and granted the motion to suppress. The government appealed the grant of the motion to suppress.
The issue on appeal was whether the EPIC check exceeded the permissible scope of the investigation and as such, impermissibly extended the length of the stop.
The court of appeals first examined the legal principles applicable to the issue on appeal. The court first noted that to comply with the Fourth Amendment’s reasonableness requirement, any investigation must be (1) justified at its inception (meaning supported by at least reasonable suspicion) and (2) reasonable in scope (meaning specifically tailored to purpose of the investigation and reasonable in time and methods). Specifically, the court stated
The first prong of the Terry analysis is satisfied “if the officer has . . . a reasonable articulable suspicion that this particular motorist violated . . . applicable traffic . . . regulations.” United States v. Salas, 756 F.3d 1196, 1200-01 (10th Cir. 2014) (quotations omitted). “[T]he second prong . . . circumscribes the permissible scope of an investigative detention,” Botero-Ospina, 71 F.3d at 788,6 and requires examining both “the length and scope of a traffic stop,” United States v. Holt, 264 F.3d 1215, 1227, 1229 (10th Cir. 2001) (en banc) (explaining “there are limitations on both the length of the detention and the manner in which it is carried out . . . [also] refer[red] to here as the ‘scope’ or ‘breadth’ of the detention”), abrogated on other grounds as recognized in United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir. 2007).[iii]
As such, normally a traffic stop must be based on at least reasonable suspicion of a violation of traffic law and limited in scope to the nature of the violation for which the person was stopped. However, the court recognized that there are situations where an officer can expand the scope of a traffic stop. The court stated
[O]nce an officer returns the driver’s license and registration, the traffic stop has ended and questioning must cease; at that point, the driver must be free to leave.” United States v. Moore, 795 F.3d 1224, 1229 (10th Cir. 2015) (quotations and alterations omitted). “But an officer may detain a driver beyond the scope of the traffic stop if, during the stop, (1) the officer develops an objectively reasonable and articulable suspicion that the driver is engaged in some illegal activity, or (2) the initial detention becomes a consensual encounter.” United States v. Davis, 636 F.3d 1281, 1290 (10th Cir. 2011) (quotations omitted); see also United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997)[iv]
In situations where an officer has reasonable suspicion of some other criminal activity during a traffic stop, the additional detention must be related to that activity and last no longer than reasonably necessary to complete that investigation. The court stated
When the government claims that reasonable suspicion supported the continued detention, “we consider the detention as a whole and the touchstone of our inquiry is reasonableness.” Cash, 733 F.3d at 1276 (quotations [*10] omitted); accord United States v. Mayville, 955 F.3d 825, 827 (10th Cir. 2020) (“Reasonableness—rather than efficiency—is the touchstone of the Fourth Amendment.”). Like the original traffic stop, the further detention’s duration “must be temporary and last no longer than is necessary to effectuate the purpose of either dispelling or confirming the officer’s reasonable suspicion.” United States v. White, 584 F.3d 935, 954 (10th Cir. 2009) (quotations omitted). In assessing duration, we ask whether the police “diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly,” but we “do not impose a rigid time limit.” United States v. Paetsch, 782 F.3d 1162, 1175-76 (10th Cir. 2015) (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985)). And like the original traffic stop, “the scope of the further detention must be carefully tailored to its underlying justification.” United States v. Wilson, 96 F. App’x 640, 644 (10th Cir. 2004)[v]
The court noted that Morales did not contest the original traffic stop or the finding of reasonable suspicion. Rather, he argued that the check through EPIC was unnecessary and exceeded the scope of the investigation, and thereby impermissibly extended the length of the detention, which then rendered the consent the product of an illegal detention.
The Tenth Circuit disagreed and held that the fifteen-minute EPIC check was reasonable during Morales incident. The court offered numerous reasons to support this holding. First, the court observed that the EPIC check could have added information that the OLETS check did not provide and could have confirmed or dispelled information already provided by Morales and Robles. Second, EPIC could verify or supplement the information the men provided regarding their criminal histories and recent border crossings. The court explained
[A]n officer may use “several investigative techniques . . . in the course of a Terry-type stop,” including “communicat[ing] with others, either police or private citizens, in an effort to verify the explanation tendered” (quoting 3 Wayne R. LaFave, Search and Seizure § 9.2, 36-37 (1978)).[vi]
Third, the EPIC call lasted no longer than needed to obtain the required information. The court noted various precedent where phone calls and computer checks in the 13-42 minute range were held to be reasonable.
The court then held
[T]he touchstone of the Fourth Amendment is “[r]easonableness—rather than efficiency.” Mayville, 955 F.3d at 827. Officer Phillips’s call to EPIC was a diligent means to investigate, and the length of the call—including an 8.5-minute hold by EPIC—was reasonable. As in the analogous drug-sniffing dog context, the length of a continued detention is not unreasonable when the police act diligently.[vii]
Therefore, the court of appeals reversed the district court’s grant of the motion to suppress.
[i] No. 19-5059(10th Cir. Decided June 8, 2020)
[ii] Id. at 2-5
[iii] Id. at 8-9 (emphasis added)
[iv] Id. at 9 (emphasis added)
[v] Id. at 10 (emphasis added)
[vi] Id. at 13 (emphasis added)
[vii] Id. at 16