[00:00:01] Speaker 04:
We'll pick up where we left off, which is the United States versus Baker Docket 23-8042 Council.

[00:00:08] Speaker 04:
Good morning again, Your Honors.

[00:00:19] Speaker 00:
Lady Aki has time for Mr. Randall Baker.

[00:00:24] Speaker 00:
This case stems from two traffic stops of Mr. Baker conducted on the same evening within a short amount of time by the same officer.

[00:00:38] Speaker 00:
And the second stop involved the use of a drug dog.

[00:00:41] Speaker 00:
And Mr. Baker's claim here is that rather than diligently pursue the traffic mission of that speeding stop, the officers instead took time

[00:00:51] Speaker 00:
talk about, prepare for, facilitate, and eventually run a drug dog sniff, detouring from that mission in violation of Rodriguez.

[00:01:01] Speaker 00:
And I'll note that on appeal, Mr. Baker's claim has both factual and legal components.

[00:01:06] Speaker 00:
The government has not tried to defend the district court's fact-finding here, and if I'm understanding the answer brief correctly, it appears to agree that the purpose of the deputy's actions shortly before and during the drug dog sniff was for criminal investigation.

[00:01:21] Speaker 03:
Well, how much of the stop was prolonged?

[00:01:24] Speaker 00:
Sure.

[00:01:24] Speaker 00:
So the detour we've identified here is a minute and 10 seconds long.

[00:01:28] Speaker 03:
10 seconds?

[00:01:29] Speaker 00:
A minute and 10 seconds, Your Honor.

[00:01:32] Speaker 00:
And of course, we know from Rodriguez and this court's

[00:01:35] Speaker 00:
decisions in Frazier, Vitaramalina, Mayville, and a number of other cases, there's no de minimis exception to this rule.

[00:01:43] Speaker 00:
So where does that come from?

[00:01:45] Speaker 00:
Is it unfair to police officers?

[00:01:47] Speaker 00:
No, it's not, because what we're ultimately asking here is, is there an amount of time where officers can detain somebody?

[00:01:56] Speaker 03:
Did Mr. Baker ever come up with his registration or his insurance certification

[00:02:05] Speaker 00:
Um, so Deputy Lloyd has all of the documents he needs in the second stop.

[00:02:09] Speaker 00:
There's no indication that he's waiting on Mr. Baker to provide any documentation.

[00:02:15] Speaker 00:
During the first stop, there's an indication that he doesn't have exactly the rental agreement available.

[00:02:20] Speaker 03:
He didn't have the rental agreement or the insurance.

[00:02:23] Speaker 03:
And I think that because it was a warning, they just said, okay, go on.

[00:02:27] Speaker 03:
And the guy went and speed it up.

[00:02:29] Speaker 00:
Yeah, so I want to be clear that this doesn't present a Cades or Malone issue.

[00:02:35] Speaker 00:
We're not challenging the first traffic stop, but in the first traffic stop.

[00:02:39] Speaker 03:
No, I understand that.

[00:02:40] Speaker 03:
But I mean, he left, he got his warning ticket, and then instead of taking the warning, he speeded up again and was going well over the speed limit at the time he was stopped the second time.

[00:02:53] Speaker 03:
And so now he's got to produce the

[00:02:57] Speaker 03:
insurance certification, as well as the rental information.

[00:03:02] Speaker 00:
Your Honor, there's no indication here that Deputy Lloyd was not satisfied with the documentation that Mr. Baker provided him in the second stop.

[00:03:10] Speaker 00:
What happens is Deputy Lloyd walks up to Mr. Baker's vehicle for the second time.

[00:03:15] Speaker 00:
He asks him for documents.

[00:03:16] Speaker 00:
Mr. Baker hands him his license.

[00:03:18] Speaker 00:
I'm not sure what else.

[00:03:20] Speaker 00:
But Deputy Lloyd says, OK, thanks, walks back to the patrol vehicle to start working on the speeding.

[00:03:26] Speaker 00:
citation alone.

[00:03:27] Speaker 03:
There's no indication.

[00:03:28] Speaker 03:
He didn't get all the way back before he turned around and brought Baker out of the car.

[00:03:32] Speaker 00:
He didn't make his way into the patrol vehicle.

[00:03:35] Speaker 00:
He'd walked almost the whole distance back to the patrol vehicle.

[00:03:38] Speaker 00:
And then Deputy Coxville arrives on scene with Champ.

[00:03:40] Speaker 00:
You can see him in the video pulling on the lead.

[00:03:43] Speaker 00:
And Deputy Wade turns around and he says, oh, do you want me to get him out of the vehicle?

[00:03:49] Speaker 00:
Deputy Coxville says, yes, also had them roll up the windows of the vehicle, clearly saying,

[00:03:55] Speaker 00:
these actions that you're bound to take are done to facilitate my drug dog sniff to make it safer.

[00:04:01] Speaker 04:
So there's no... That's what it's facilitating is the safetiness.

[00:04:06] Speaker 00:
The safetiness of the drug dog sniff.

[00:04:08] Speaker 04:
So... Well, but if the drug dog sniffer, that deputy, were endangered walking around this car in darkness, wouldn't the other officer also be endangered?

[00:04:22] Speaker 04:
In other words, if it turns out that this is a

[00:04:26] Speaker 04:
person with drugs who maybe is high and has a firearm under the seat and shoots the first deputy, not going to just wave at the second deputy.

[00:04:35] Speaker 00:
So a few points there, Your Honor.

[00:04:38] Speaker 00:
One is I think when we're talking about the safety of the drug dog, Smith, the evidence indicates that the deputies are worried about the safety to Mr. Baker from having an apprehension dog who might bite him.

[00:04:49] Speaker 04:
It's part of it.

[00:04:49] Speaker 00:
Secondly, if the deputy's criminal investigation is what is prompting any danger in the stop and it didn't exist until they're bringing a drug dog to the scene and they're taking some time to execute the drug dog, then this is a safety precaution taken to facilitate the criminal investigation that comes from the criminal investigation.

[00:05:08] Speaker 00:
And Rodriguez is very clear on this point.

[00:05:11] Speaker 00:
It is not okay to extend the stop for any amount of time if the reason you're doing it is to make a criminal investigation safer.

[00:05:18] Speaker 04:
But you can run a dog around so long as you're not prolonging the stop.

[00:05:22] Speaker 00:
That's correct.

[00:05:23] Speaker 04:
And so had the first deputy gone to the window and said, get out of the car.

[00:05:27] Speaker 04:
And then during this press hearing said, yeah, I want to get him out of the car, except for the drug.

[00:05:32] Speaker 04:
I knew the drug dog was going around and not heightened safety concerns for everyone on the roadside.

[00:05:38] Speaker 04:
Would you still have an objection to that?

[00:05:41] Speaker 00:
Yes.

[00:05:41] Speaker 00:
I think this gets to, if I'm understanding your honor's question correctly, it's still

[00:05:48] Speaker 00:
assuming that there's an extra order that's only being taken because of a drug dog's nest.

[00:05:53] Speaker 00:
So yes, Tobias tells us, if you don't add any time at all to the stop, you can run a drug dog, but you can't add any time to the stop to do it.

[00:06:03] Speaker 00:
And the ways you can do it without adding time to a stop are to have it be offset by what the other officer is doing.

[00:06:10] Speaker 00:
We don't have that here because the other officer is working on the stop.

[00:06:13] Speaker 00:
or something the driver is doing, that's case, and we don't have that here.

[00:06:18] Speaker 00:
Deputy Boyd has the information he needs from Mr. Baker.

[00:06:20] Speaker 04:
I guess my question is going to this, and I thought I knew the answer, which is that just because a dog is being run around the car simultaneously doesn't mean that the first deputy can't order, the briefs say order, but ask the person to get out of the car.

[00:06:38] Speaker 04:
Is that right?

[00:06:40] Speaker 00:
It depends on the purpose for which that other deputy is doing it.

[00:06:43] Speaker 04:
You think that's a subjective test, whether you can order or ask a driver to get out of the car?

[00:06:49] Speaker 00:
I think that a Purpose Board inquiry, as the Supreme Court and this court does it, has both objective and subjective components.

[00:06:56] Speaker 00:
Yes, I don't think it quite matters here, because all of the evidence, however you look at this, the circumstances of the stop, or the deputy's candid testimony about why they took these actions, show that this

[00:07:08] Speaker 00:
exit order, the window roll of order, the conversation the deputies have before any of this is about the drug dog sniff and not about the traffic violation.

[00:07:18] Speaker 00:
How do we know that?

[00:07:19] Speaker 00:
Well, we have a really great test case with traffic stop one where Deputy Lloyd, the same officer, the same night, the same car.

[00:07:27] Speaker 04:
It's a different danger though.

[00:07:29] Speaker 00:
Sure.

[00:07:29] Speaker 04:
To both deputies.

[00:07:31] Speaker 00:
We can presume that, but we know that it's not Deputy Lloyd's practice to do this in a traffic safety context.

[00:07:37] Speaker 00:
We have Deputy Lloyd himself aware that Deputy Coxville's coming, because he's called for him on his, you know, the 50 miles before he pulls over the second stop.

[00:07:47] Speaker 00:
We have Deputy Lloyd himself going up to the vehicle, getting Mr. Baker's license, and making the decision to walk back to his patrol vehicle alone to issue the speeding warning, knowing that Deputy Coxville's coming.

[00:07:58] Speaker 03:
It couldn't have been a minute and 10 seconds when he turned around and made him get out of the car.

[00:08:05] Speaker 03:
That was just many seconds.

[00:08:07] Speaker 00:
So two points there, Your Honor.

[00:08:10] Speaker 00:
The minute and 10 seconds, just to clear up the evidentiary piece of this, we're counting from the moment Deputy Floyd switches what he's doing.

[00:08:19] Speaker 00:
So he's walking to his patrol vehicle with Mr. Baker's license.

[00:08:24] Speaker 00:
He switches what he's doing, talks to Deputy Coxville, issues the exit order and the window roll-up order, and walks through.

[00:08:31] Speaker 03:
Well, he didn't stop and talk to that other officer.

[00:08:34] Speaker 03:
That was in passing.

[00:08:36] Speaker 03:
He said, shall I get him out?

[00:08:37] Speaker 03:
Yes.

[00:08:38] Speaker 00:
So he's already passed Deputy Cox's bill.

[00:08:42] Speaker 03:
Well, they didn't stop and have a conference.

[00:08:44] Speaker 00:
That whole walk back, it takes about 20 seconds to walk back from the patrol vehicle to Mr. Baker's vehicle.

[00:08:53] Speaker 00:
And I do want to point out here, the government hasn't, I think, disputed the evidentiary issue of how much time these actions took in the video evidence.

[00:09:02] Speaker 00:
And I can point to pin sites in the briefing.

[00:09:04] Speaker 00:
The other thing is, I think there's this underlying concern about, is this too brief to violate Rodriguez?

[00:09:11] Speaker 03:
Well, suppose he looked down and, oh my gosh, my shoelace is untied.

[00:09:15] Speaker 03:
So he bends down and ties his shoelace, and then gets back up and keeps going.

[00:09:20] Speaker 03:
Is that also going to extend the prolonged stuff?

[00:09:23] Speaker 03:
That does not violate Rodriguez, Your Honor.

[00:09:25] Speaker 00:
And let me explain why.

[00:09:26] Speaker 00:
Because this test isn't out to get police officers and trick them up because they tied their shoelaces.

[00:09:32] Speaker 00:
What we know is that the overall standard here is one

[00:09:34] Speaker 00:
of reasonableness, but that means something different when you're talking about an unlawful criminal investigation versus general diligence.

[00:09:43] Speaker 03:
There's nothing lawful about taking the dog and walking around the car with it.

[00:09:48] Speaker 00:
There's something unlawful about detaining someone for the sole purpose of a criminal investigation.

[00:09:54] Speaker 00:
is you're not being detained during that time period for a criminal investigation.

[00:09:58] Speaker 00:
You're being detained for a traffic stop.

[00:10:00] Speaker 00:
And there's another officer who was conducting a drug dox niff.

[00:10:04] Speaker 00:
But the moment, the only reason for your detention, however long it is, 10 seconds, two minutes, five minutes, the moment that's only for criminal investigation, that violates the Fourth Amendment.

[00:10:16] Speaker 00:
And this goes all the way back to Terry.

[00:10:17] Speaker 00:
This is not a new principle.

[00:10:19] Speaker 00:
I think we're probably all on the same page that an officer couldn't detain someone on the street

[00:10:24] Speaker 00:
do a stop and frisk as long as they kept it under 30 seconds.

[00:10:27] Speaker 00:
It would obviously be unreasonable.

[00:10:29] Speaker 04:
Is there a single moment where you say, right here is where we have our Rodriguez violation, I don't care what else happens afterwards, this stop is bad?

[00:10:37] Speaker 00:
Yeah, I think it's when the deputies have a conversation about what Deputy Coxville needs to facilitate the drug doxineth, and this court can stop there.

[00:10:44] Speaker 04:
OK.

[00:10:45] Speaker 04:
And that really gets to the heart of what I need to know to decide this case.

[00:10:50] Speaker 04:
And that is, I'm not sure I'd buy that view.

[00:10:52] Speaker 04:
because I read Rodriguez and I read Frazier and they talk about the amount of time needed to, that reasonably should have been needed to complete the stop.

[00:11:05] Speaker 04:
This traffic stop was never completed because the drug dotting alerted, there are no citation issued so far as I know, but it immediately went to another focus.

[00:11:16] Speaker 04:
Why should we not be asking, even giving you a minute and 20, which I think is generous, but I might be persuaded on that.

[00:11:23] Speaker 04:
Even giving you that minute and 20, and saying that, why don't we run the clock at that point to say, could the first deputy have gone into the car or written out the citation and everything?

[00:11:39] Speaker 04:
Would it have taken him more than a minute and 20 seconds to do so?

[00:11:42] Speaker 04:
And if so, the stop is good.

[00:11:44] Speaker 00:
That's not the inquiry that this court has already applied in, for sure.

[00:11:47] Speaker 00:
And so the answer is, I think,

[00:11:49] Speaker 00:
You know, Frazier, you have in the middle of the traffic stop, the deputy taking some time aside to arrange for a drug docksmith.

[00:11:56] Speaker 00:
And what Frazier said is the reason that's wrong is because it added time to the stop.

[00:12:01] Speaker 00:
There's no kind of subtraction analysis.

[00:12:03] Speaker 00:
There's no overall duration analysis.

[00:12:05] Speaker 00:
There's the moment you have a Rodriguez moment when these three conditions

[00:12:09] Speaker 00:
are met that are outlaid in Frasier, that is when this dot becomes illegal and it remains illegal from that point forward.

[00:12:16] Speaker 04:
That's a Frasier.

[00:12:17] Speaker 04:
And looking at Frasier, right now, it tracks the language in Rodriguez on that would have been completed.

[00:12:25] Speaker 04:
In other words, it doesn't say we have a Rodriguez moment all after that is irredeemable.

[00:12:30] Speaker 04:
It looks forward and it says,

[00:12:32] Speaker 04:
You used some time here that you shouldn't have been allowed to use, but because the stop didn't end, and you would have completed it within the amount of time, you're good.

[00:12:41] Speaker 00:
Respectfully, Your Honor, I don't think this court undertakes by analysis in Frazier.

[00:12:45] Speaker 00:
If you go to page 1173.

[00:12:47] Speaker 04:
Let me just read you what I'm talking about, and then you can tell me your page is better, and I'll probably forget about it.

[00:12:54] Speaker 04:
Thus the government must show not only the search occurred during a period when Mr. Frazier would have been seized,

[00:13:00] Speaker 04:
Anyway, it must show that the stop would not have ended sooner had the trooper far gone the search and instead continued to work diligently on traffic related tasks.

[00:13:11] Speaker 04:
That to me says, you look and you say, in our instance, would the trooper have been able to write that citation in a minute and 20 seconds using your number?

[00:13:22] Speaker 00:
Frazier Court doesn't do that type of time analysis in this opinion, but more importantly, it says under Rodriguez, it makes no difference whether an investigative detour occurs before or after the completion of the stop's traffic-based mission as page 1180.

[00:13:36] Speaker 04:
But Rodriguez is so much different because it's one officer.

[00:13:40] Speaker 00:
It's different.

[00:13:41] Speaker 04:
And the dog is run after the stop is completed.

[00:13:44] Speaker 04:
Here you have two things in motion at the same time.

[00:13:46] Speaker 00:
Let's take the practical impact of what Your Honor is suggesting here.

[00:13:50] Speaker 00:
It's basically saying,

[00:13:51] Speaker 00:
To have that role would basically be to say, every time you have a traffic stop, the police can start with a really quick criminal investigation that they have no reasonable suspicion to conduct as long as they make it really fast.

[00:14:04] Speaker 03:
They can run that dog without any suspicion whatsoever.

[00:14:06] Speaker 00:
Only if it's offset by traffic tasks.

[00:14:10] Speaker 00:
It cannot add time.

[00:14:12] Speaker 00:
There's no exception under the Fourth Amendment.

[00:14:14] Speaker 00:
No, no.

[00:14:14] Speaker 03:
Using your hypothetical, if two offices

[00:14:18] Speaker 03:
One doing the ticket, one running the dog, there was no problem there.

[00:14:25] Speaker 00:
One running the dog.

[00:14:25] Speaker 00:
Yeah, because that's a question of was that too much of an intrusion on the driver?

[00:14:30] Speaker 00:
What we're asking in Rodriguez is a duration claim, which is did you add time to the stop for a criminal investigation?

[00:14:36] Speaker 00:
You don't add time to the stop.

[00:14:37] Speaker 03:
And the answer is no, if you just say to your buddy who's got the dog, should I pull him out of the car?

[00:14:45] Speaker 00:
Your Honor, respectfully, that's not what this court has already decided in Frazier.

[00:14:49] Speaker 00:
It's not what this court has said in Cortez.

[00:14:51] Speaker 00:
It's not what the Supreme Court says in Rodriguez.

[00:14:54] Speaker 00:
Rodriguez is very clear.

[00:14:55] Speaker 00:
It doesn't matter if the ticket's complete or not.

[00:14:57] Speaker 00:
I know in that case it was.

[00:14:59] Speaker 00:
But Rodriguez says that's not what matters.

[00:15:01] Speaker 00:
What matters is, are we allowing, contrary to the teachings of Terry, officers to take an amount of time solely for the purpose of criminal investigation

[00:15:13] Speaker 00:
because they have done a traffic stop.

[00:15:16] Speaker 00:
And the answer has to be no there.

[00:15:19] Speaker 00:
And I would point this court to Frazier, which is saying, arranging for a dog sniff, calling up a deputy and saying, I need a drug dog here, is absolutely impermissible.

[00:15:28] Speaker 03:
Well, that didn't happen here.

[00:15:30] Speaker 03:
That did not happen here.

[00:15:31] Speaker 00:
There is a preparation.

[00:15:32] Speaker 00:
You have two deputies having a conversation.

[00:15:34] Speaker 00:
What is required for this drug dog sniff?

[00:15:36] Speaker 00:
What's required for the drug dog sniff is for Mr. Baker to be safely removed from the vehicle and for the windows to be rolled up.

[00:15:43] Speaker 00:
That is a conversation, a preparation for drug doxness, in which no other traffic tasks are happening, and that has to be impermissible under Rodriguez, because otherwise this would be counter to Terry.

[00:15:54] Speaker 00:
Thank you, Your Honor.

[00:15:55] Speaker 04:
Thank you.

[00:16:05] Speaker 01:
May it please the court?

[00:16:07] Speaker 01:
My name is Christine Martens, and I represent the government.

[00:16:12] Speaker 01:
Here, Mr. Baker's Fourth Amendment rights were not violated during the traffic stop that evening because the stop was not extended within the meaning of Rodriguez.

[00:16:21] Speaker 01:
And that's true for two reasons.

[00:16:24] Speaker 01:
First, as a matter of law, officers are entitled to ask both the driver and the passenger out of the vehicle during the course of a lawful traffic stop and their subjective motivation for doing so is irrelevant to the analysis under the Fourth Amendment.

[00:16:38] Speaker 01:
And second, as a factual matter, there was no delay in the District Court to not error in so finding.

[00:16:46] Speaker 01:
So I think that most of the questions so far have really talked about how Rodriguez deals with that delay.

[00:16:53] Speaker 04:
How do you say there was no delay?

[00:16:55] Speaker 04:
I don't understand that.

[00:16:57] Speaker 01:
So here, Your Honor, what we have is the officer exercising the choice between two perfectly permissible options under the Fourth Amendment.

[00:17:04] Speaker 01:
leaving Mr. Baker in the car or getting him out.

[00:17:08] Speaker 04:
But he didn't do that.

[00:17:09] Speaker 04:
He left the car, walked back, then came back.

[00:17:12] Speaker 04:
Why isn't that a delay?

[00:17:13] Speaker 04:
I agree with you that if at the very moment that he went up to the car the second time, he said, would you please get out of the car?

[00:17:20] Speaker 04:
And there was that discussion that that's fine.

[00:17:23] Speaker 04:
But that didn't happen.

[00:17:25] Speaker 04:
He walked back, and then he conversed, and then he went back to the car.

[00:17:30] Speaker 04:
That wouldn't happen without a second investigation.

[00:17:33] Speaker 01:
It may or may not have.

[00:17:35] Speaker 04:
Well, it wouldn't have here.

[00:17:37] Speaker 01:
Yeah, it wouldn't have happened here, but there's really two parts to that answer.

[00:17:42] Speaker 01:
First, this court has repeatedly said that officers just need to be diligent.

[00:17:47] Speaker 01:
They don't have to be perfectly efficient or use the most efficient means to complete a tracking stop.

[00:17:53] Speaker 01:
when they are just running through those regular tasks.

[00:17:58] Speaker 01:
And then the second part of that answer really goes to this question with regard to rent, motivation, and pretext.

[00:18:05] Speaker 01:
Any action taken at a traffic stop just has to be objectively reasonable under the Fourth Amendment.

[00:18:12] Speaker 01:
And so here, if we ignore the audio, if we ignore the testimony about purpose at the suppression hearing,

[00:18:22] Speaker 01:
Ignore the pretext.

[00:18:23] Speaker 01:
What we see on that video is an officer taking 20 seconds to reconsider his choices.

[00:18:28] Speaker 01:
And those choices, again, are between two perfectly permissible options under the Fourth Amendment, be the driver in the vehicle or getting out.

[00:18:37] Speaker 02:
Well, what if we spot you the order for the driver to get out of the vehicle?

[00:18:43] Speaker 02:
How do you explain the order to roll up the window and the time it took for that to happen, even if it's de minimis?

[00:18:50] Speaker 01:
Well, once

[00:18:52] Speaker 01:
Deputy Lloyd orders Baker to exit the video, then he's just waiting on Baker's compliance with that lawful order.

[00:18:58] Speaker 01:
And anything that's running parallel to that is just that parallel.

[00:19:03] Speaker 01:
Essentially, it stops the clock, kind of like a speedy trial analysis.

[00:19:07] Speaker 01:
That request to roll out the window came after.

[00:19:10] Speaker 01:
And it's notable here that- No, but it's a separate request.

[00:19:15] Speaker 02:
I need you to do two things.

[00:19:17] Speaker 02:
Get out of the vehicle.

[00:19:18] Speaker 02:
When you issue the order, of course it's going to take some time for that to be executed.

[00:19:22] Speaker 02:
So again, let's say we spot you that that's appropriate.

[00:19:25] Speaker 02:
But the order to roll up the window, at least as I see it, may be different than what the officer can do between two lawful choices to have someone exit the vehicle.

[00:19:36] Speaker 02:
And when that order is issued, it's going to take some time for the person to actually roll up the window, right?

[00:19:43] Speaker 02:
So how do you factor that?

[00:19:45] Speaker 02:
different separate order into our analysis whether or not that was done as two lawful choices as you've presented them.

[00:19:52] Speaker 01:
So here, what we see when we review the video is, Daphne Lloyd is approaching the vehicle on the passenger side, and it's the passenger window that is rolled down, and it's the passenger who is sitting right there.

[00:20:04] Speaker 01:
Baker's in the driver's seat.

[00:20:06] Speaker 01:
So as a factual matter, when that order is issued, Baker's not the one who would be rolling up that window.

[00:20:12] Speaker 01:
He would have to crawl over the passenger to do so, which just logistically doesn't make sense.

[00:20:16] Speaker 01:
So what happens is, Deputy Lloyd orders the driver out and requests that the passenger roll up the passenger window while the driver is complying.

[00:20:25] Speaker 01:
So that's why I say it doesn't add any time to the stop.

[00:20:28] Speaker 01:
It doesn't take any time for Mr. Baker to add to his compliance.

[00:20:33] Speaker 01:
There's a few seconds that Mr. Baker takes when he stands up and he gets out of the vehicle and he's sort of standing alongside the car and he leaves his door open and the deputy talks about things like, well, shut your door.

[00:20:46] Speaker 01:
We don't want it to be taken off by traffic.

[00:20:48] Speaker 01:
That's all about compliance with that lawful order and safety and compliance with that order, which doesn't count against the deputies in their diligent execution of this traffic stop.

[00:20:58] Speaker 01:
And I think that I'd also sort of like to pick up on

[00:21:02] Speaker 01:
some of the hypotheticals that were discussed with the defendants council.

[00:21:06] Speaker 01:
So when we talk about what we're looking at for Rodriguez, even though Rodriguez talks about it's impermissible to take officer seeking precautions in order to facilitate any suspicionless investigation,

[00:21:26] Speaker 01:
I think that it's really important to really think about how Rodriguez deals with MIMS and the discussion there.

[00:21:34] Speaker 01:
So Rodriguez deals with MIMS only insofar as it points out that the Eighth Circuit got the analysis wrong.

[00:21:41] Speaker 01:
Essentially what the Eighth Circuit had said below was that there's this inter-swaying analysis and de minimis extensions of a traffic stopper okay.

[00:21:50] Speaker 01:
But what Rodriguez says is that's not the case.

[00:21:53] Speaker 01:
We can't do de minimis extensions.

[00:21:56] Speaker 01:
But it doesn't touch that per se rule established by Mims and Wilson that exit orders are lawful regardless of any particular suspicion of dangerousness, without suspicion of any criminal wrongdoing aside from the presumably minor trafficking fraction that's the basis for the stop.

[00:22:17] Speaker 01:
So really Rodriguez leaves that intact.

[00:22:19] Speaker 01:
And there's nothing in those statements of purpose

[00:22:22] Speaker 01:
that call into question the well-established case law about that subjective motivation the officers underlying intentions in taking otherwise objectively justified actions under the Fourth Amendment.

[00:22:36] Speaker 01:
So here, again, those principles being in play, it was a lawful exit order and that it wasn't perfectly executed logistically.

[00:22:44] Speaker 01:
is of no moment because it's really just about that objective choice between two lawful options.

[00:22:50] Speaker 01:
It's not like the deputy here stood idly by, which supports the idea that on this record, there was no factual error, that there was no delay or a lack of diligence by the officers next.

[00:23:02] Speaker 04:
So I'm sure I understand.

[00:23:03] Speaker 04:
You're saying the officer's subjective motivations for requesting the driver get out of the car matter or don't matter?

[00:23:10] Speaker 01:
They do not matter.

[00:23:12] Speaker 01:
They do not matter.

[00:23:17] Speaker 01:
In taking up some of the hypotheticals, I think that it's helpful also to talk a little bit about what Judge Phillips, you pointed out.

[00:23:29] Speaker 01:
Rodriguez says that the authority for a traffic stop ends when the tasks related to that stop are or should have been completed.

[00:23:39] Speaker 01:
Now here, the dog alerts about three minutes in

[00:23:44] Speaker 01:
to the video.

[00:23:45] Speaker 01:
When we watch that video, what we see is it takes 45 or 50 seconds from the moment the lights come on on the patrol vehicle triggering the video to fully get pulled over and for Deputy Lloyd to approach the passenger side of the vehicle.

[00:24:01] Speaker 01:
And so the stop itself starts

[00:24:04] Speaker 01:
you know, in terms of the interactions with Baker, 45 or 50 seconds into the video.

[00:24:09] Speaker 01:
So really, there's only about two minutes, give or take a few seconds, of activity that occurs at this traffic stop before the drug dog alerts.

[00:24:19] Speaker 01:
What we have in this record is the video from the first stop, and that's going to be government's exhibit number two before this court.

[00:24:27] Speaker 01:
If we do sort of a similar look at that first stop where Deputy Deloitte did not pull Mr. Baker out of the vehicle, what we see is he completes the warning in about 10 minutes.

[00:24:40] Speaker 01:
So even if there is some, that impermissible diversion here, we don't concede there is, there's no way that the tax incident to this traffic stop could have been completed by the time the drug dog alerted.

[00:24:55] Speaker 01:
So that's yet another reason to affirm the district court's denial of Mr. Baker's suppression motion.

[00:24:59] Speaker 01:
Now, of course, the district court won't get there because it held that there was no delay, so it had no necessity to really look at Exhibit 1, make a factual comparison to arrive at that delay question, but it's apparent on the face of this record.

[00:25:14] Speaker 02:
Council, can you help me?

[00:25:15] Speaker 02:
One of the things I struggle with is what makes this case somewhat different is there are the two stops by the same deputy all within, I think, an hour of each other.

[00:25:22] Speaker 02:
I think they said 50 miles, give or take.

[00:25:24] Speaker 02:
So I assume that was approximately an hour.

[00:25:27] Speaker 02:
And as I recall, Deputy Lloyd testified that he intended to issue another warning for speeding.

[00:25:33] Speaker 02:
I think his words were, if everything checked out.

[00:25:36] Speaker 02:
But of course, he knew everything checked out because he had just stopped them less than an hour before.

[00:25:40] Speaker 02:
So even objectively, and let's say, again, setting aside as Wren teaches us we must do what his purpose was, if we think about the duration and what was occurring here, how could you objectively conclude it was anything other than specifically for the purpose of a drug investigation and all the timing elements of at least a few of the activities were for that purpose, which

[00:26:08] Speaker 02:
case law would suggest would be there was a Rodriguez moment there.

[00:26:12] Speaker 01:
So I think it's only fair to point out that below, the government proceeded that the stop itself is pretextual.

[00:26:18] Speaker 01:
Deputy Lloyd offered testimony that he wouldn't have even stopped Mr. Baker had he observed traffic violations before he had backup, because he only intended to stop him if he could have backup so he could further his investigation.

[00:26:34] Speaker 01:
So the stop itself is pretextual.

[00:26:36] Speaker 01:
So if we're getting into those subjective motivations, the whole thing's pretext.

[00:26:41] Speaker 02:
Yeah, but you just said, well, we know the first stop took 10 minutes, so we can assume the second stop would take 10 minutes too.

[00:26:47] Speaker 02:
But why would we make that assumption?

[00:26:50] Speaker 01:
Well, there's just certain things that officers, first of all, get to do incident to a traffic stop, license, registration, all of those kinds of things.

[00:26:58] Speaker 01:
And this is a second stop, all that starts over, they get to do those tasks.

[00:27:03] Speaker 01:
And then when we get into the district court's order itself, there were specifically some findings about he approached the vehicle, asked for the information, he intended to take it back to his squad car because while there was information available in the computer, it was faster and easier for him to use those documentation items that he did get to fill out that citation

[00:27:28] Speaker 01:
Again, showing diligence in the execution of the traffic-based missions.

[00:27:32] Speaker 01:
So here, I don't know that this court will necessarily want to make that factual finding in the first instance.

[00:27:39] Speaker 01:
I know it's loath to do so, even when there is body camera available.

[00:27:44] Speaker 01:
Perhaps if we get to that second factual inquiry, a remand to the district court for that factual finding is the more proper answer.

[00:27:53] Speaker 01:
But at any rate,

[00:27:55] Speaker 01:
When you look at what it takes to type up the citation, do those sorts of things as evidenced from that first set of body cam, there's only about two minutes that go by.

[00:28:06] Speaker 01:
And I just don't think that on these facts we can conclude that the deputy could have even accomplished this morning if he had never turned back to issue the exit warrant.

[00:28:15] Speaker 04:
Do you have authority that says on a second stop in this sort of a time interval that they have time to run criminal history and check for warrants?

[00:28:24] Speaker 04:
when they've already done that?

[00:28:26] Speaker 01:
Well it's kind of a unique set of facts and what we do have in terms of authority is that there's just those

[00:28:33] Speaker 01:
certain things that go with the traffic stop.

[00:28:36] Speaker 01:
So Rodriguez itself talks about you get to do those normal incidences to a traffic stop.

[00:28:43] Speaker 01:
And really all we're talking about here was that question of whether the officers were entitled to go get those documents.

[00:28:49] Speaker 01:
And we do have an explanation in the record about why that was actually the more efficient way to execute this traffic stop.

[00:28:55] Speaker 01:
And then what we're really left with on this record

[00:28:58] Speaker 01:
is this question about diligence in the exit order.

[00:29:01] Speaker 01:
That's per se.

[00:29:03] Speaker 04:
Is that right?

[00:29:04] Speaker 04:
The question was whether or not, I thought that's why he needed the driver's license and why it might have assisted him to have him in the car so he could fill out the warning citation.

[00:29:14] Speaker 04:
Did the deputy need to speak with dispatch to fill out the warning citation?

[00:29:21] Speaker 04:
I don't know why.

[00:29:24] Speaker 04:
Well, you're saying Rodriguez allows them to check criminal history and how do you do that?

[00:29:32] Speaker 04:
Well, driver's license status, that sort of thing.

[00:29:36] Speaker 04:
Normally, they call dispatch and say, is this driver's license good?

[00:29:42] Speaker 01:
Yes, Your Honor.

[00:29:43] Speaker 04:
And so, second time around, I don't know why you would need that time to do that.

[00:29:49] Speaker 04:
All you need is the driver's license information.

[00:29:52] Speaker 04:
You fill out the citation and say, here's your citation.

[00:29:54] Speaker 04:
Good speeding.

[00:29:56] Speaker 01:
Agreed.

[00:29:57] Speaker 01:
Again, the deputy doesn't even get back to the car, so there's no question about whether there's calling dispatch.

[00:30:05] Speaker 01:
He asked for the rental agreement at the first stop with a lack of backup, decided to let Mr. Baker go.

[00:30:10] Speaker 01:
I don't see any reason why he wouldn't be entitled to have persisted in the request for the rental agreement.

[00:30:16] Speaker 01:
But he didn't.

[00:30:17] Speaker 01:
But he didn't because so little time passed.

[00:30:19] Speaker 01:
They didn't even get back to the car so that they could do those tasks.

[00:30:24] Speaker 02:
Counsel, I believe earlier you said the window order was actually, you know, the passenger rolled up the window.

[00:30:31] Speaker 02:
It was done contemporaneous with the other activities, so it would not have added in time.

[00:30:35] Speaker 02:
The district court finding of facts said Deputy Lloyd ordered the defendant to roll up the window.

[00:30:40] Speaker 02:
So how do we interpret that finding made by the district court compared to the argument the government made here tonight or today?

[00:30:49] Speaker 01:
Well, I don't know that it's a clearly erroneous finding, but it is...

[00:30:55] Speaker 01:
It seems impractical, and what you see on the video is not Baker crawling over the pasture.

[00:30:59] Speaker 01:
So maybe it is clearly erroneous in terms of the view of the record.

[00:31:04] Speaker 01:
But at any rate, that order is issued at the passenger side of the vehicle after the exit order.

[00:31:14] Speaker 01:
And the district court further found that there was no time added.

[00:31:17] Speaker 01:
So those findings would be in conflict with each other.

[00:31:22] Speaker 01:
I guess I hadn't picked that up.

[00:31:26] Speaker 01:
If there are no further questions, the government requests that this order for.

[00:31:30] Speaker 04:
All right, thank you.

[00:31:31] Speaker 04:
Ms.

[00:31:31] Speaker 04:
Yaffe, you can have two minutes if you want to.

[00:31:35] Speaker 00:
I just have three points to make if there's time.

[00:31:44] Speaker 00:
The first is getting back to the timing issue of when

[00:31:47] Speaker 00:
a diversion matters.

[00:31:49] Speaker 00:
I just do want to point the court to Frasier at 1179 where it says, the moment there's a Rodriguez moment, the stop is illegal from that point forward.

[00:31:59] Speaker 00:
That is a finding, a holding that this court has already made in a published 10th Circuit decision, and that's the rule in this circuit.

[00:32:07] Speaker 00:
At minimum, though, and I don't think there's any ground here, but at minimum, I don't think the record supports that the inquiry that this court would need to take if that were not the rule.

[00:32:16] Speaker 00:
So there would need to be a remand.

[00:32:19] Speaker 03:
Yes, Your Honor?

[00:32:20] Speaker 03:
How tight are we going to micromanage our policemen?

[00:32:25] Speaker 00:
We're not micromanaging police with respect to traffic acts.

[00:32:28] Speaker 03:
Micromanaging them to the end.

[00:32:30] Speaker 00:
So here's an example.

[00:32:31] Speaker 03:
They're being shot at, killed, fentanyl is being spread everywhere, and we're going to say, well,

[00:32:37] Speaker 03:
12 seconds is too long.

[00:32:40] Speaker 00:
I completely respect where your honor is coming from, and I just want to be really clear about the role here.

[00:32:45] Speaker 00:
There is an inquiry for when an officer is conducting traffic tests, they have to be reasonably diligent.

[00:32:52] Speaker 00:
And we are not going to say, hey, you took 12 seconds to tie your shoes, Rodriguez violation.

[00:32:57] Speaker 00:
The only time this de minimis role comes up

[00:33:00] Speaker 00:
is when an officer is specifically doing something they don't have objective justification to do, which is conduct a drug investigation or conduct other criminal investigation.

[00:33:10] Speaker 00:
We're not talking about, could you have written the citation faster?

[00:33:14] Speaker 00:
Should you have not tied your shoe?

[00:33:16] Speaker 00:
Whatever it is, that's not what Rodriguez is challenging.

[00:33:19] Speaker 03:
Well, in this case, this defendant had never furnished insurance certification or registration.

[00:33:27] Speaker 00:
Again, Your Honor, the record shows that Deputy Lloyd asked for... He may have waived it the first time.

[00:33:32] Speaker 03:
He wasn't going to waive it the second time.

[00:33:34] Speaker 00:
Your Honor, Deputy Lloyd did not ask Mr. Baker to continue looking for any documentation.

[00:33:39] Speaker 00:
He accepted that he had the license, and he had already run all the checks he needed to know to know that Mr. Baker had a valid license, that he didn't have any outstanding warrants, and even that the rental agreement was valid because he was able to get that information.

[00:33:51] Speaker 03:
So then he should have done it really faster than the first time.

[00:33:55] Speaker 00:
No.

[00:33:55] Speaker 00:
The inquiry here, Your Honor, is simply

[00:33:57] Speaker 00:
Did the officers take time to investigate criminal investigation or criminal activity without reasonable suspicion to do so?

[00:34:06] Speaker 00:
And if they did, and that added any measurable amount of time, then the stop is illegal from that point forward under Frasier at 1179.

[00:34:13] Speaker 00:
Thank you, Ernest.

[00:34:15] Speaker 04:
Thank you, counsel, for your helpful arguments.

[00:34:17] Speaker 04:
The case is submitted.

[00:34:18] Speaker 04:
Counselor excused.