                    United States Court of Appeals
                            FOR TH E EIGHT H CIRC UIT
                                   ___________

                                   No. 01-1034
                                   ___________

United States of America,               *
                                        *
            Appellant,                  * Appeal from the United States
                                        * District Court for the
      v.                                * District of South Dakota.
                                        *
Manuel Rodriguez-Arreola,               *
                                        *
            Appellee.                   *
                                   ___________

                              Submitted: June 12, 2001
                                 Filed: October 12, 2001
                                  ___________

Before BOWMAN and HEANEY, Circuit Judges, and KOPF,1 District Judge.
                         ___________

BOWMAN, Circuit Judge.

       During the routine stop of a vehicle for speeding, a South Dakota highway
patrol officer discovered that Manuel Rodriguez-Arreola, a passenger in the vehicle,
was an illegal alien. Rodriguez was detained and later charged under 8 U.S.C.
§ 1326(a) (Supp. IV 1998) with being an illegal alien present in the United States




      1
       The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska, sitting by designation.
after deportation.2 Rodriguez filed a motion to suppress all evidence obtained during
the traffic stop, arguing that his status as an illegal alien was discovered through
questioning that violated his Fourth Amendment rights. The District Court granted
Rodriguez's motion to suppress and the government appeals. We reverse.

                                          I.

       While traveling west on I-90, South Dakota Highway Patrol Officer
Christopher Koltz noticed a vehicle approaching from the opposite direction. His
radar recorded the vehicle's speed at eighty-six miles per hour—eleven miles per hour
in excess of the posted speed limit. Trooper Koltz then crossed the interstate median
and accelerated in order to overtake and stop the speeding vehicle.

       Trooper Koltz activated a video recording system before exiting his patrol car,
and all events and conversations during the stop were recorded. He approached the
stopped vehicle and requested that the driver, Estaban Molina, provide his license and
registration. He informed Molina that he had been stopped for speeding and
instructed him to step out of the vehicle and to take a seat in the front of his patrol
car. Trooper Koltz showed Molina the speed that the radar had recorded and
informed Molina that he was going to issue him a ticket. While preparing the ticket,
Trooper Koltz asked Molina a variety of general questions, after which he asked
Molina whether he was a United States citizen or a resident alien. Molina first
answered that he was neither a United States citizen nor a resident alien. In order to
confirm Molina's admission that he was an illegal alien, Trooper Koltz asked Molina
whether he had a green card. After a somewhat confusing conversation between
Molina and Trooper Koltz, Molina was able to convey that he was a legal alien but


      2
        The one-count indictment further alleges that Rodriguez qualifies for a
sentence enhancement based on his previous conviction in an Oregon state court for
the delivery of heroin. See 8 U.S.C. § 1326(b)(2) (1994 & Supp. IV 1998).
                                          -2-
that he had left his green card at home. Trooper Koltz then asked Molina whether his
passenger was a legal alien and had a green card. Molina answered no.3


      Trooper Koltz finished writing the ticket and had Molina sign it. He told
Molina that he was going to run a check of his license over the radio and that while
waiting on the results, he would walk his dog around the car to make sure there were
no drugs.4 Trooper Koltz instructed Molina to step out of his patrol car and had him
stand on the shoulder of the road. Trooper Koltz proceeded to the vehicle and
motioned for Rodriguez, the only passenger in the vehicle, to exit. After Rodriguez
exited the vehicle, Trooper Koltz asked him whether he was a legal resident. He
answered no.5 Trooper Koltz further inquired as to whether Rodriguez possessed a


      3
          Trooper Koltz asked Molina:

      Q:       How about your friend up here that you're traveling with, is he a
               legal alien? Does he have a green card?
      A:       No (inaudible)
      Q:       He does or he doesn't?
      A:       (inaudible)

United States v. Rodriguez-Arreola, No. CR 00-40071 (D.S.D. Nov. 21, 2000)
(appendix A to Magistrate Judge's Report and Recommendation).
      4
       As one of the highway patrol's canine handlers, Trooper Koltz's job included
the detection of illegal drugs.
      5
          Trooper Koltz's questioning of Rodriguez proceeded as follows:

      Q:       How well do you understand English, sir?
      A:       Nada.
      Q:       Nada, huh? I'll bet you do. Do I need to get INS on the phone?
      A:       (inaudible-seemingly confused)
      Q:       INS?
      A:       Huh?
                                           -3-
green card. In response, Rodriguez produced only a Washington State identification
card with his name on it, but not a green card.6 See United States v. Rodriguez-
Arreola, No. CR 00-40071, at 17 (D.S.D. Nov. 6, 2000) (transcript of motion
hearing).


       Trooper Koltz then had Rodriguez join Molina on the shoulder of the road so
that he could use his canine to search the vehicle. After his search of the vehicle
failed to discover any drugs,7 Trooper Koltz put his canine back in the patrol car and


      Q:       INS?
      A:       (inaudible).
      Q:       Okay, is that how we're going to play it? Are you a legal . . . a
               resident of this country?
      A:       No. (inaudible)

Rodriguez-Arreola, No. CR 00-40071 (appendix B to Magistrate Judge's Report and
Recommendation).
      6
          Trooper Koltz's questioning of Rodriguez continued:

      Q:       Where's your green card?
      A:       (defendant produces something from his wallet)
      Q:       That's not a green card. Where's your green card?
      A:       (inaudible-shaking head)
      Q:       Yeah, you know what I'm talking about. You don't have one, do
               ya?
      A:       No. (shaking head)
      Q:       No. You're not here legally are you?
      A:       (shaking head)

Rodriguez-Arreola, No. CR 00-40071 (appendix B to Magistrate Judge's Report and
Recommendation).
      7
       The canine alerted four times to the presence of drugs on the exterior of the
vehicle. Based on these alerts, Trooper Koltz had his canine sniff the interior where
                                           -4-
proceeded to perform a radio check on Rodriguez. Through dispatch, he also
contacted an Immigration and Naturalization Service (INS) agent to assist in an
investigation of the immigration status of Molina and Rodriguez, whom he suspected
to be illegal aliens due to their responses. After providing the INS agent with the full
names of Molina and Rodriguez, the agent asked Trooper Koltz follow-up questions
regarding Rodriguez. Due to his inability to converse with Rodriguez in Spanish,
Trooper Koltz allowed the INS agent to talk directly with Rodriguez. Following his
check of the identities of Molina and Rodriguez, the INS agent informed Trooper
Koltz that while Molina was a legal alien, Rodriguez was not. After the radio check
on Molina failed to disclose any outstanding warrants, Trooper Koltz gave Molina the
speeding ticket and allowed him to go. At the request of the INS, Trooper Koltz
placed Rodriguez into custody and took him to the nearest jail facility for processing
by the INS. Viewing the immigration detention as part of an administrative
procedure, neither the INS nor Trooper Koltz informed Rodriguez of his Miranda
rights during the traffic stop.8


       Prior to trial, Rodriguez moved to suppress "all evidence and statements
obtained" during the traffic stop, particularly evidence and statements pertaining to
his identity. United States v. Rodriguez-Arreola, No. CR00-40071 (D.S.D. Oct. 24,
2000) (Motion to Suppress). He argued that the evidence and statements were
obtained through an illegal search and seizure that violated his Fourth Amendment
rights. The Magistrate Judge held a hearing and subsequently recommended that the
District Court grant Rodriguez's motion. See United States v. Rodriguez-Arreola, No.


it again alerted. Trooper Koltz then proceeded to search the interior by hand but was
unable to locate any drugs. See Rodriguez-Arreola, No. CR 00-40071, at 19-20
(transcript of motion hearing).
      8
       Apparently, Rodriguez received Miranda warnings later when the INS decided
to pursue criminal charges. See Rodriguez-Arreola, No. CR 00-40071, at 67-68
(D.S.D. Nov. 6, 2000) (transcript of motion hearing)
                                          -5-
CR 00-40071, at 19 (D.S.D. Nov. 21, 2000) (Magistrate Judge's Report and
Recommendation). The District Court adopted the Magistrate Judge's Report and
Recommendation and granted the motion to suppress based on its conclusion that
Rodriguez's Fourth Amendment rights were violated. The government filed an
interlocutory appeal challenging the ruling pursuant to 18 U.S.C. § 3731 (1994).


      We review the District Court's findings of fact for clear error. United States
v. Stephenson, 924 F.2d 753, 758 (8th Cir.), cert. denied, 502 U.S. 813, 916 (1991).
We review de novo, however, the District Court's ultimate legal conclusions drawn
from the facts. United States v. Tavares, 223 F.3d 911, 914 (8th Cir. 2000). We will
not reverse the District Court's decision regarding a motion to suppress "unless it is
not supported by substantial evidence on the record; it reflects an erroneous view of
the applicable law; or upon review of the entire record, the appellate court is left with
the definite and firm conviction that a mistake has been made." United States v.
Layne, 973 F.2d 1417, 1420 (8th Cir. 1992), cert. denied, 506 U.S. 1066 (1993).


                                           II.

       Initially we note that two aspects of the stop are not in dispute. First,
Rodriguez does not argue that the initial stop of the vehicle for speeding was
improper. Second, the government does not challenge the suppression of the
incriminating statements Rodriguez made during his telephone conversation with the
INS agent from Trooper Koltz's patrol car.9 The District Court's suppression of all
other evidence obtained during the stop appears to be in dispute.




      9
      The government conceded at oral argument that it was not challenging the
suppression of the incriminating un-Mirandized statements Rodriguez made to the
INS official during this telephone conversation.
                                           -6-
      The government argues that Trooper Koltz did not violate the Fourth
Amendment rights of Rodriguez. The government contends that the questions posed
to Molina concerning his alienage were within the scope of the stop because they
were based on a reasonable suspicion by Trooper Koltz.10 The government further
contends that even if Trooper Koltz's questions to Molina constituted an
unconstitutional search and seizure, the questions only violated Molina's Fourth
Amendment rights—a violation that Rodriguez does not have standing to assert.
After Molina stated that the passenger in his vehicle did not have a green card, the
government argues that Trooper Koltz had reasonable suspicion to ask Rodriguez
about his citizenship status. Finally, the government argues that even if Trooper
Koltz's questions constituted a Fourth Amendment violation, Rodriguez's identity is
not suppressible as a matter of law.

       Rodriguez contends that the questions posed by Trooper Koltz about alienage
were outside the appropriate scope of the traffic stop and impermissibly extended the
stop beyond its proper duration. He argues that these questions by Trooper Koltz
violated his Fourth Amendment right to be free from illegal searches and seizures.
Rodriguez also contends that evidence of his identity is equally as suppressible as the
other evidence obtained during the stop. Therefore, he argues that all evidence
obtained during the traffic stop should be excluded as the poisonous fruit of an
unconstitutional search and seizure.


      10
        Trooper Koltz listed multiple factors as raising his suspicion: the nervousness
of Molina and Rodriguez; Molina's continued nervousness after being told why he
was stopped and even after he learned of the Trooper's decision to issue him a ticket;
Molina and Rodriguez were traveling on a long trip together although not related and
of significantly different ages; the reluctance of Molina or Rodriguez to make eye
contact; the car being extremely clean on the interior with no debris; no luggage
visible on the interior of the vehicle as would be expected for a long trip to Chicago;
and the car having Washington State license plates, which he considered a source
state for illegal drugs. Rodriguez-Arreola, No. CR 00-40071, at 10-15 (D.S.D.
Nov. 6, 2000) (transcript of motion hearing).
                                          -7-
                                          A.

       We first dispose of Rodriguez's claim that his Fourth Amendment rights were
violated. In asserting that Trooper Koltz performed an illegal search and seizure
during the course of the traffic stop, Rodriguez relies on the questions asked to
Molina as a basis for establishing a violation of his rights. Even if Trooper Koltz
violated Molina's Fourth Amendment rights—a question not before us—Rodriguez
cannot use the violation of another individual's rights as the basis for his own Fourth
Amendment challenge. See United States v. Payner, 447 U.S. 727, 731 (1980) ("[A]
court may not exclude evidence under the Fourth Amendment unless it finds that an
unlawful search or seizure violated the defendant's own constitutional rights."). In
order for Rodriguez to establish a claim based on the questions asked to Molina, he
must show that the "challenged conduct invaded his legitimate expectation of privacy
rather than that of a third party." Id. Rodriguez has no legitimate expectation of
privacy in Molina's knowledge that Rodriguez was illegally present in the United
States, and therefore he cannot contest Molina's statements.11

       Rodriguez asserts that the government has waived any argument that he lacks
the ability to challenge a Fourth Amendment violation of Molina's rights because the
government never raised the argument before the District Court. The fact that
Rodriguez cannot demonstrate an expectation of privacy in the statements made by
Molina, however, means that he does not have standing to assert such a Fourth
Amendment violation. See United States v. Stallings, 28 F.3d 58, 60 (8th Cir. 1994)
("In order to have standing to challenge a search or seizure under the Fourth

      11
        Because we hold that Rodriguez cannot challenge the questions about
alienage posed to Molina, we do not consider the government's argument that the
questions did not violate the Fourth Amendment because, based on Trooper Koltz's
suspicions, they were within the proper scope of the traffic stop.
                                          -8-
Amendment, the defendant must have a legitimate expectation of privacy in the
places or objects searched."). The government cannot waive Rodriguez's lack of
standing, and therefore any argument based on waiver must fail. See Sierra Club v.
Robertson, 28 F.3d 753, 757 n.4 (8th Cir. 1994) ("[I]t is elementary that standing
relates to the justiciability of a case and cannot be waived by the parties.").

       The Supreme Court has analogized roadside questioning during a traffic stop
to a Terry stop, which allows an officer with reasonable suspicion to detain an
individual in order to ask "a moderate number of questions to determine his identity
and to try to obtain information confirming or dispelling the officer's suspicions."
Berkemer v. McCarty, 468 U.S. 420, 439 (1984); see also Terry v. Ohio, 392 U.S. 1
(1968). After Molina told Trooper Koltz that Rodriguez was not legally present in
the United States, Trooper Koltz had reasonable suspicion to inquire into Rodriguez's
alienage. Trooper Koltz then acted within the proper scope of this suspicion by
asking Rodriguez whether he was a legal alien and had a green card. At this point,
Trooper Koltz was still in a stage of investigation and attempting to confirm what
Molina had told him. See United States v. Foley, 206 F.3d 802, 805 (8th Cir. 2000)
("[A]n officer may undertake similar questioning of other vehicle occupants to verify
information provided by the driver."). Rodriguez was not in custody when he
produced his Washington State identification card and answered that he was not a
legal alien. This evidence is admissible even though Rodriguez had not yet received
a Miranda warning.12 See Berkemer, 468 U.S. at 440 ("The similarly noncoercive
aspect of ordinary traffic stops prompts us to hold that persons temporarily detained
pursuant to such stops are not 'in custody' for the purposes of Miranda."). United
States v. McGauley, 786 F.2d 888, 890 (8th Cir. 1986) ("No Miranda warning is
necessary for persons detained for a Terry stop.").

      12
       Because the government does not appeal the suppression of statements
Rodriguez later made to the INS agent from his patrol car, we do not need to consider
whether Rodriguez should have received a Miranda warning prior to his making those
statements.
                                         -9-
       Inasmuch as, for the reasons stated, Rodriguez-Arreola's Fourth Amendment
rights were not violated, the District Court erred by granting his suppression motion,
at least to the extent that the court's suppression order is challenged in this appeal.

                                          B.

       Our holding that no illegal search and seizure took place disposes of this
appeal. Nevertheless, we address the government's argument, that "identity" is not
suppressible even if gained through a Fourth Amendment violation, for the purpose
of clarifying the posture in which this case comes to us and how the Supreme Court's
decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), and this Circuit's recent
decision in United States v. Guevara-Martinez, No. 00-3855, 2001 WL 935871 (8th
Cir. Aug. 20, 2001), apply to this case.

      The District Court, in adopting the Magistrate Judge's Report and
Recommendation, suppressed Rodriguez's Washington State identification card, his
fingerprints, and statements that Rodriguez made to Trooper Koltz.13 The
government, based on its interpretation of the Supreme Court's decision in Lopez-

      13
        The Magistrate Judge's Report and Recommendation states, "It is
recommended, therefore, that all evidence resulting from Rodriguez' [sic] illegal
detention, including his statement of his identity, his ID card, and his fingerprints be
suppressed." United States v. Rodriguez-Arreola, No. CR 00-40071, at 19 (D.S.D.
Nov. 21, 2000) (Report and Recommendation). The District Court adopted this
recommendation, stating that "evidence resulting from the illegal detention of an alien
can be suppressed at his criminal trial." United States v. Rodriguez-Arreola, No. CR
00-40071, at 4 (D.S.D. Dec. 22, 2000) (Memorandum Opinion and Order). We note
that Trooper Koltz never asked Rodriguez for his name; rather, he asked Rodriguez
if he had a green card, and Rodriguez produced his Washington State identification
card bearing his name. Thus, when the Magistrate Judge referred to Rodriguez's
"statement of his identity," we assume that the reference was either to the production
of the ID card, or to Rodriguez's response to Trooper Koltz that he was not legally in
the United States. Rodriguez never spoke his name during the encounter.
                                          -10-
Mendoza, argues that "evidence of a defendant's identity is not suppressible" and that
the District Court thus erred in suppressing those items of evidence. Appellant's Br.
at 16 (emphasis added). A close reading of Lopez-Mendoza does not support the
government's broad interpretation. The Court held in Lopez-Mendoza that "[t]he
'body' or identity of a defendant or respondent in a criminal or civil proceeding is
never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an
unlawful arrest, search, or interrogation occurred." Id. at 1039. Thus, the Court
rejected Lopez-Mendoza's objection to being compelled to appear at a deportation
hearing following his unlawful arrest. The Ninth Circuit, applying Lopez-Mendoza,
has held that in the prosecution of an illegal alien for reentry under 8 U.S.C. § 1326,
the "defendant's identity need not be suppressed merely because it is discovered as
the result of an illegal arrest or search." United States v. Guzman-Bruno, 27 F.3d
420, 421 (9th Cir.), cert. denied, 513 U.S. 975 (1994). The court interpreted Lopez-
Mendoza as foreclosing the defendant's "attempt to suppress the fact of his identity."
Id. at 422. The Ninth Circuit's opinion gives no indication that it was refusing to
suppress specific physical evidence of any sort; it only indicates that the court
declined to suppress the simple fact of who the defendant was.14

       After a careful reading of both the District Court's order and the relevant case
law, it is apparent that the government misunderstands the scope of the District


      14
         In the context of a prosecution under § 1326, the Fifth Circuit has held that
even if a defendant is unconstitutionally stopped and arrested, his identity cannot be
suppressed. United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999).
The Fifth Circuit's opinion does not mention fingerprints, statements, or other
evidence obtained at the scene of the allegedly unlawful stop. Instead, it simply
rejects that defendant's argument that his INS file should have been suppressed as
fruit of the poisonous tree. The Tenth Circuit, in an unpublished opinion, has
interpreted Lopez-Mendoza to prevent suppression of a defendant's statement of his
name to an officer. See United States v. Cisneros-Cruz, No. 98-1398, 1999 WL
444926, at **6 (10th Cir. June 30, 1999) (unpublished). We again note that
Rodriguez never stated his name to Trooper Koltz.
                                           -11-
Court's suppression order and the import of Lopez-Mendoza and cases relying upon
it. As our Circuit recently observed, "'The language in Lopez-Mendoza should only
be interpreted to mean that a defendant may be brought before a court on a civil or
criminal matter even if the arrest was unlawful.'" United States v. Guevara-Martinez,
No. 00-3855, 2001 WL 935871, at *3 (8th Cir. Aug. 20, 2001) (holding that
fingerprints obtained from an illegal alien as a result of an unconstitutional search and
seizure are suppressible) (quoting United States v. Mendoza-Carillo, 107 F. Supp. 2d
1098, 1106 (D.S.D. 2000)). To the extent that Rodriguez or the government
interpreted the District Court's suppression order to bar the present or future
prosecution of Rodriguez under § 1326,15 such an interpretation would violate the
Supreme Court's holding in Lopez-Mendoza. We do not read the District Court's
order to reach so far; under this Circuit's precedent and under Lopez-Mendoza, the
government would not be prohibited from prosecuting Rodriguez for violating § 1326
so long as it used untainted evidence of his identity. See United States v. Aldana-
Roldan, 932 F. Supp. 1455, 1456 (S.D. Fla. 1996) (holding, in a § 1326 prosecution,
that "the Government is free to prove Defendant's identity so long as it can do so
without relying upon the information it obtained from [the] unlawful stop").

                                          IV.

      In sum, we conclude that the government did not violate Rodriguez's Fourth
Amendment rights. Except for the suppression of Rodriguez's statements made to the
INS official, which the government does not contest, we reverse the District Court's
suppression order and remand the case for further proceedings consistent with this
opinion.



      15
         The elements for establishing a violation of § 1326 are "that the defendant
(1) is an alien, (2) was previously deported, and (3) has re-entered the United States
without proper permission." United States v. Gomez-Orozco, 188 F.3d 422, 425 (7th
Cir. 1999).
                                          -12-
HEANEY, Circuit Judge, dissenting.

      I respectfully dissent. In my view, the district court correctly held that Trooper
Koltz’s immigration status questions unreasonably expanded the scope of the traffic
stop because he had no reasonable, articulable suspicion of criminal activity.
Therefore, all information obtained from Rodriguez after the inception of this
questioning should be suppressed.

       During a lawful traffic stop, law enforcement officers may engage in an
investigation reasonably related to the stop. See United States v. Ramos, 42 F.3d
1160, 1163 (8th Cir. 1994). “[A] reasonable investigation of a traffic stop may
include asking for the driver’s license and registration, requesting the driver to sit in
the patrol car, and asking the driver about his destination and purpose.” U.S. v.
Foley, 206 F.3d 802, 805 (8th Cir. 2000) (citation omitted). If such questioning
produces inconsistent answers, or if the license and registration are not in order, a
trooper’s suspicions may be raised so as to enable him to expand the scope of the stop
and ask additional, more intrusive questions. Ramos, 42 F.3d at 1163. If, however,
no answers are inconsistent and no objective circumstances supply the trooper with
additional suspicion, the trooper should not expand the scope of the stop. See id.

       The majority concludes, on the basis of United States v. Payner, that Rodriguez
cannot establish a violation of his Fourth Amendment rights because he had no
legitimate expectation of privacy in Molina’s knowledge that he was illegally present
in the United States, and therefore cannot contest Molina’s statements. See United
States v. Payner 447 U.S. 727, 731 (1980). This reasoning condones Trooper Koltz’s
improper expansion of the scope of the traffic stop in order to elicit incriminating
information about Rodriguez’s alienage, and ignores Rodriguez’s right to challenge
the scope and duration of the stop.




                                          -13-
       While it is true that Rodriguez does not have standing to contest the statements
made by Molina, he can contest his own statements if they were the product of an
unreasonably protracted traffic stop. The right to be free from unnecessarily
prolonged traffic stops applies to both drivers and passengers. See U.S. v. Jones, 234
F.3d 234, 241 (5th Cir. 2001) (because continued detention of driver and passenger
was improper after routine questions failed to create reasonable suspicion, both were
entitled to suppress evidence obtained as a result of a subsequent search). A law
enforcement official may not unreasonably expand the scope of a routine traffic stop
in order to obtain incriminating information about the passenger of a vehicle without
violating that passenger’s right to be free from unnecessary governmental detention.
See id.; U.S. v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995) (once the purpose of an initial
traffic stop is completed, an officer cannot further detain a vehicle or its occupants
unless something that occurred during the traffic stop generated the necessary
reasonable suspicion to justify a further detention) (emphasis added).

       Trooper Koltz stopped Molina for speeding. Neither Molina’s nor Rodriguez’s
immigration status was relevant to this traffic violation. Therefore, without a
reasonable suspicion of additional criminal activity, the traffic stop and Trooper
Koltz’s attendant investigation should have concluded before either Molina or
Rodriguez were questioned about immigration issues. See U.S. v. Restrepo, 890 F.
Supp. 180, 195 (E.D.N.Y. 1995)(“Unnecessarily prolonging a traffic stop for the
purpose of eliciting information about a suspected unconnected violation for which
there is no objective basis is not acceptable.”).16


      16
         Trooper Koltz was entitled to conduct a reasonable investigation related to
the traffic stop by asking Molina about the identity of his passenger, and questioning
the passenger to verify the information provided by the driver. United States v.
Edmisten, 208 F.3d 693, 694 (8th Cir. 2000). In this case however, Trooper Koltz did
not even bother to ask Molina about Rodriguez’s identity. Instead he first asked
Molina whether his passenger was “a legal alien”, and whether his passenger had “a
green card.” United States v. Rodriguez-Arreola, No. CR 00-40071 (D.S.D. Nov. 21,
                                         -14-
       To justifiably expand the scope of the traffic stop, Trooper Koltz was required
to observe particularized, objective facts which, taken together with rational
inferences from those facts, reasonably warranted suspicion that a crime was being
committed. See United States v. Beck, 140 F.3d 1129, 1136 (8th Cir.1998). Trooper
Koltz listed several factors to support his suspicion of criminal activity, including: the
nervousness of Molina and Rodriguez; the failure of Molina and Rodriguez to make
eye contact; the age difference between Molina and Rodriguez; the lack of a familial
relationship between Molina and Rodriguez, a car interior devoid of luggage and
debris, and license plates from the State of Washington.17 I agree with the magistrate
judge, and the district court judge, that these factors do not support Trooper Koltz’s
suspicion of drug trafficking activity, nor do they support his suspicion that Molina
and Rodriguez were illegal aliens.

      As we noted in Beck, factors such as the absence of luggage in the interior of
a vehicle, and the presence of out-of-state plates from alleged “source” states are
insufficient to support reasonable suspicion. See id. at 1137-39. Also, failing to
make eye contact with a questioning police officer, and traveling with an individual
of a different age and familial background, does not indicate that criminal activity is
afoot. The government has failed to cite any authority, nor have I discovered any, to
support the proposition that these factors were adequate to provide reasonable


2000)(appendix A to Magistrate Judge’s Report and Recommendation).
      17
        Trooper Koltz stated that Molina appeared nervous and failed to make eye
contact during the traffic stop, even after he was informed of the reason for the stop.
This cannot be considered suspicious because during the traffic stop, Molina was
confronted by a suspecting law enforcement officer who was accompanied by a large
barking police dog. Although under certain circumstances nervousness may be
considered suspicious, under the facts presented here, such nervousness was not
unusual. See United States v. Beck, 140 F.3d 1129, 1139 (8th Cir. 1998)(“It certainly
cannot be deemed unusual for a motorist to exhibit signs of nervousness when
confronted by a law enforcement officer.”).
                                           -15-
suspicion. The initial stop by Trooper Koltz in this case was proper. However, he
should have completed the stop by issuing a citation for speeding and returning
Molina’s driver's license. After that point, Trooper Koltz needed a reasonable
articulable suspicion to detain Molina and Rodriguez for additional investigation.
The factors cited by Trooper Koltz as providing reasonable suspicion, however, do
not differ from those that would be expected from law abiding travelers. By the time
Trooper Koltz asked Molina about Rodriguez’s immigration status, the scope of the
traffic stop had been impermissibly expanded and any information obtained
afterwards could not be used to justify further inquiry. I would therefore affirm the
judgment of the district court.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -16-
