                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1495
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the District of
                                        * Minnesota
Isaac Eugene Barlow,                    *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: August 20, 2001

                                  Filed: October 22, 2002
                                   ___________

Before BYE, LAY, and JOHN R. GIBSON, Circuit Judges.
                             ___________

BYE, Circuit Judge.

       Following a conditional plea of guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922, Isaac E. Barlow appeals the district court's
denial of his motion to suppress evidence seized during an investigatory stop of a car
in which he was a passenger. Barlow contends that the detention of the car
unlawfully exceeded the scope of the stop. For reasons stated below, we vacate the
order denying the renewed motion to suppress evidence and remand for further
proceedings.
                                          I

       Between the early morning hours of 12:00 a.m. and 12:30 a.m. on July 28,
1997, Minneapolis Police Officer Kim Hedberg observed a Geo Tracker pass by as
he exited a parking lot. The record indicates the occupants of the Tracker glanced at
Officer Hedberg and were startled and surprised to see him. Officer Hedberg was in
uniform and in a marked patrol car. The Tracker increased its speed and made a
quick left turn in what appeared to be an attempt to evade Officer Hedberg. Officer
Hedberg followed the Tracker into an alley and observed it pull over and park.

       Officer Hedberg saw two passengers, both black males, exit the Tracker and
walk in the direction of a private residence. Officer Hedberg drove by the Tracker.
He noticed the driver was white with brown or blonde hair, but could not determine
the driver's gender. Officer Hedberg then came upon the two men who had just exited
the vehicle. He asked them whether they lived in that residence. They said they did,
however, he did not see them enter it. Officer Hedberg did not ask any additional
questions and exited the alley. He ran a computer check on the registration on the
Tracker, whereupon he discovered the owner of the Tracker, a male, had an
outstanding misdemeanor warrant.

       Officer Hedberg decided to investigate whether the owner of the Tracker was
present in the vehicle, so he returned to the alley. In so doing, Officer Hedberg
observed the Tracker in motion, and also noticed that the same two men who had
previously exited it, and who had told Officer Hedberg that they were headed toward
their residence, were back in the Tracker. Officer Hedberg activated his light bar and
initiated a stop. He approached the Tracker and discovered that the driver was a
female. Officer Hedberg asked the driver for her license and she responded she did
not have it with her. He then asked the driver to accompany him to his patrol car
while he ran a computer check on her license. While in the patrol car, the driver told



                                         -2-
Officer Hedberg that she knew the identity of the passenger seated in front, but she
did not know the identity of the passenger seated in back.

       Officer Hedberg returned to the Tracker to identify the passengers. When he
approached the Tracker, he initially asked the passengers where they lived. The
responses they provided conflicted with their earlier statements they had provided
while in the alley. Both passengers were requested to exit the Tracker and produce
identification. As soon as Barlow exited the Tracker, Officer Hedberg conducted a
pat-down search for weapons and felt bullets in Barlow's back pocket. He removed
the bullets from Barlow's pocket, placed him in handcuffs and in the patrol car.
Thereafter, Officer Hedberg shined a flashlight into the Tracker, where, in plain view,
he saw a firearm on the floor in the back seat where Barlow had been seated. Officer
Hedberg seized the firearm and placed Barlow under arrest.

                                          II

       Barlow concedes that the underlying basis for stopping the Tracker was valid.
See United States v. Cortez, 449 U.S. 411, 417 n.2 (1981) ("[A]n officer may stop and
question a person if there are reasonable grounds to believe that person is wanted for
past criminal conduct."). But he contends that the officer exceeded the purpose of
stopping the car—to determine whether the Tracker's owner, the subject of the
outstanding warrant, was present in the car—and thus the seizure was illegal and the
evidence obtained was tainted by that illegality.

      Barlow filed two motions to suppress the evidence. His original motion to
suppress was referred to a magistrate judge for a report and recommendation. The
magistrate judge held an evidentiary hearing and ultimately recommended that
Barlow's motion be denied. Barlow raised certain objections, but after conducting
a de novo review, the district court likewise denied Barlow's motion to suppress.
Subsequently, during his plea hearing, Barlow renewed his motion to suppress, after

                                         -3-
the district court allowed him to make Defendant's Exhibit 10 part of the court's
record. The district court, once again, denied Barlow's motion to suppress. In order
to review the district court’s judgment in full, we must review the original motion to
suppress and the renewed motion to suppress separately. In doing so, we review for
clear error the facts supporting a district court's denial of a motion to suppress, and
review de novo the legal conclusions based upon those facts. See United States v.
Perez, 200 F.3d 576, 579 (8th Cir. 2000) (citing Ornelas v. United States, 517 U.S.
690, 699 (1996)).

                          A. Original Motion to Suppress

       In adopting the magistrate judge's1 report and recommendation, the district
court found the initial stop of the Tracker to be valid based on the officer's reasonable
suspicion that the occupants of the vehicle had been engaged in criminal activity. See
Terry v. Ohio, 392 U.S. 1, 25-31 (1968). The district court also found the police
officer justifiably expanded the scope of the investigation beyond the misdemeanor
warrant which was the purpose of the initial stop.

      Barlow argues that Officer Hedberg should have terminated the stop before
asking the driver a single question. According to Barlow, Officer Hedberg knew the
subject of the misdemeanor warrant (the Tracker's owner) was a white male. Yet
Officer Hedberg had observed the Tracker's driver as being a white woman and its
passengers being black males. Barlow argues that because Officer Hedberg had no
reason to suspect that any of the Tracker's occupants was the subject of the warrant,
he lacked justification for asking questions and prolonging the stop.




      1
      The Honorable John M. Mason, United States Magistrate Judge for the District
of Minnesota.

                                          -4-
       Barlow's argument hinges upon his contention that Officer Hedberg knew both
the gender and the race of the Tracker's owner when he executed the stop. The
evidence, however, fails to substantiate Barlow's contention. The evidence presented
to the magistrate judge at the hearing indicated that Officer Hedberg knew only the
gender of the Tracker's owner.

       During the evidentiary hearing, Officer Hedberg testified he knew only the
Tracker’s owner was a male. The prosecutor then asked Officer Hedberg whether he
knew the owner’s race. His answer was no, and further testified that the computer
print-out did not provide the race of the Tracker's owner; rather, it only provided the
gender, hair color and eye color. Barlow's attorney did not cross-examine Officer
Hedberg on this issue, nor was he cross-examined about the contents of the computer
print-out. In fact, the computer print-out, which contained the physical description
of the owner, and did include race, was only marked as Defendant's Exhibit 10 during
the evidentiary hearing. It was never admitted into evidence. Defendant’s Exhibit
10, therefore, was not in the record.

      In the report and recommendation, the magistrate judge noted the dearth of
information Officer Hedberg possessed regarding the physical description of the
Tracker’s owner, stating:

      A registration typically reveals a brief description of the owner,
      however, during his testimony, Officer Hedberg was not asked about
      that description. The physical appearance of the owner remains
      unknown, so the evidence does not disclose whether a reasonable
      officer would have reached a conclusion as to whether the male
      passengers might have been the owner of the car and the subject of the
      warrant.




                                         -5-
Report & Recommendation 3-4. The magistrate judge ultimately recommended
Barlow’s motion to suppress be denied. Barlow did not object2 to the magistrate
judge's aforementioned factual finding. Thus, while we normally review for clear
error the facts supporting a district court’s denial of a motion to suppress, the factual
findings here will be reviewed only for plain error, because Barlow failed to object
to this factual finding. See United States v. Looking, 156 F.3d 803, 809 (8th Cir.
1998).

       Because the record was devoid of any evidence suggesting, much less
demonstrating, Officer Hedberg knew the race of the owner when he stopped the
Tracker, we cannot say the district court plainly erred. Barlow never raised nor
argued the race issue. Consequently, since there was no evidence upon which the
magistrate judge or the district court could possibly have found that Officer Hedberg
knew the race of the owner when he stopped the Tracker, the district court did not err
in finding Officer Hedberg had reasonable suspicion to believe the Tracker’s owner
may have been present as a passenger.

                         B. Renewed Motion to Suppress

      At his plea hearing, Barlow requested permission to make Defendant's Exhibit
10 part of the record. Barlow's attorney informed the district court the magistrate
judge had essentially been presented with the contents of Defendant's Exhibit 10


      2
       Barlow likely did not object to the magistrate judge's finding because his
argument focused on the fact that Officer Hedberg knew the gender of the subject.
Barlow argued that once Officer Hedberg knew the driver was not male, the
continued detention of the Tracker was unlawful because any reasonable suspicion
that supported the initial Terry stop dissipated at that point. Barlow's attorney failed
to pay heed to Officer Hedberg's testimony that he stopped the Tracker in order to
determine whether any of its occupants, not merely the driver, was the subject of the
outstanding warrant. See Tr. of Evidentiary Hearing 42.

                                          -6-
through testimony, and therefore the exhibit itself should be added to the record to
assist in Barlow's eventual appeal. With the assurance of Barlow's attorney that the
addition of the exhibit would not prompt a remand on appeal, the district court
received Exhibit 10 into the record. The government did not object to Defendant's
Exhibit 10 being made part of the record.

       Barlow then sought to renew his motion to suppress evidence. The district
court allowed Barlow to renew his motion, and considered it as if Barlow had moved
the court to reconsider its earlier ruling. The district court believed the addition of
Exhibit 10 to the record did not alter the facts underpinning the original suppression
motion because Barlow's attorney expressly represented that "Judge Mason had
before him, in essence, the contents of the exhibit." Tr. of Plea Hearing 13.
Consequently, the district court summarily denied the renewed motion based on this
representation.

       The contents of Defendant's Exhibit 10, however, were not before the
magistrate judge, and the addition of it to the record does alter the facts underpinning
the original suppression motion. We are mindful the district court expressed concern
that making Defendant's Exhibit 10 part of the record would alter the court of appeals'
view of the suppression ruling.3 Although we sympathize with the district court, and
believe the district court should be entitled to rely on an attorney's representation, we
cannot, however, overlook the fact of its existence. This is especially true because
Barlow's attorney articulated the basis for making the exhibit part of the record,
specifically stating that Officer Hedberg knew both the gender and the race of the


      3
        The district court stated to Barlow's attorney, "[the] reason I am raising it, is
there any question if I accept the plea with this condition in it, the reservation of the
right to appeal, that that appeal is going to go down to the Eighth Circuit and the
Eighth Circuit is going to say, let's send it back and see what the district court or the
magistrate judge is going to say about that issue now that that exhibit is in? That's
the only concern I have." See Tr. of Plea Hearing 12-13.

                                          -7-
Tracker's owner when he effectuated the stop.4 The exhibit and the argument have
been preserved for appeal.

       Defendant's Exhibit 10 contains material information which arguably casts
doubt on the denial of Barlow's original motion to suppress. But the district court did
not have an adequate opportunity to consider the exhibit, and to correct any mistake
if one was made in the first instance. Cf. United States v. Longmire, 761 F.2d 411,
420-21 (7th Cir. 1985) ("Unless the district court is given an opportunity to correct
the error, an appellate court cannot review evidence presented at trial which casts
doubt upon a pre-trial suppression motion."); Masiello v. United States, 304 F.2d 399,
400-02 (D.C. Cir. 1962) (vacating the judgment and remanding because the evidence
that might support the trial judge's determination emerged after the conclusion of the
suppression hearing (during the trial) and conflicted directly with testimony adduced
at the pretrial hearing). In fact, the district court was deprived of the opportunity to
consider Defendant's Exhibit 10 because of the attorney's representation, as evidenced
by its summary denial of Barlow's renewed motion to suppress.

                                           III.

      Neither the magistrate judge nor the district court made a credibility finding
concerning Officer Hedberg's testimony as it pertains to the issue of race.
Defendant's Exhibit 10 bears directly upon Officer's Hedberg's credibility. Therefore,

      4
        Barlow's attorney stated "[T]he only information that is relevant to the
suppression issue is the fact that on the warrant it does set forth the race of the person
who was wanted on the misdemeanor warrant out of, I believe it's Anoka County, is
white and so there was the testimony by the officer that the driver of the vehicle was
white; couldn't determine gender. The two passengers were black and I believe that's
relevant to the issue under consideration. And as part of the preservation of rights on
appeal, I would renew my motion to suppress based on the fact that at the point the
officer realized that the white driver was a woman, that any reasonable suspicions that
would support a Terry stop dissipated at that point." See Tr. of Plea Hearing 11-12.

                                           -8-
we vacate the district court's order denying the renewed motion to suppress evidence
and remand to allow the district court the opportunity to reconsider Barlow's renewed
motion to suppress evidence in light of Defendant's Exhibit 10 and all other evidence
contained in the record.

LAY, Circuit Judge, concurring specially.

      I concur in Judge Bye’s majority opinion remanding this case to the district
court. I do so solely to provide a majority in the judgment of this court. I cannot
endorse Judge Gibson’s dissenting analysis for several reasons.

        The first and primary reason is that this case in its ultimate disposition should
be affirmed. Any other analytical view fails to give a reasonable and common sense
approach to an officer carrying out his duties under the law. There is no question in
this case that the officer had a reasonable basis for pulling over the Tracker to
determine whether the owner of the vehicle was driving the car or was a passenger
in the car. The owner was wanted on a misdemeanor warrant and was a fugitive at
the time. After the officer had determined that the owner of the vehicle was not in the
car, it was reasonable for him, in view of the fact that the owner of the vehicle was
a fugitive, to inquire of the driver as to her license. I find nothing meritorious in
engaging in a discussion as to whether he had a right to do so (which I feel that he
did), but simply point out that the driver of the car responded to him that her license
was not in her possession but was at home. The driver of the car did not object to the
officer asking such a question nor did she object to his taking her back to his vehicle
in order to verify her statement.

      There is no question that the defendant in the present case, Barlow, as a
passenger in the car, had no standing to object to any question the officer might
address to the driver. Once it was determined that the driver was in violation of
Minnesota law by not having her license in her possession, the officer was certainly

                                          -9-
within his duty to detain her. He could not allow her to drive the car. She had no
license and, under the circumstances, no reasonable police officer would allow an
unlicensed driver to drive the car away from the scene of the stop. Barlow had no
standing to protest the officer questioning the driver. Additionally, once the officer
determined that there was a violation of the Minnesota statute, it was reasonable for
the officer to ask the two passengers to remove themselves from the car, and for
purposes of the officer’s safety, to submit them to a pat down.

       The courts are always concerned about intrusion into the civil rights of citizens,
but at the same time the courts should recognize the officer’s duty, under given
circumstances, to make certain that no other crime is taking place. I am confident that
any reasonable officer would have done the same as Officer Hedberg in asking the
driver for her license, particularly in light of the fact that she was driving a vehicle
owned by a fugitive.

       Considering the entirety of what occurred at the scene, I feel that the end result
of this case should be a denial of the motion to suppress, and the conviction be
allowed to stand.

       However, based upon my concurrence with Judge Bye’s opinion, it will allow
the matter to go back to the district court for a complete review of the record and facts
by the district court, which did not take place in the first instance. Once that record
has been verified and the district court has had an opportunity to review the matter
again, I am confident that the final result will be a denial of the motion to suppress
either by the district court or certainly by this court in review.

JOHN R.GIBSON, Circuit Judge, dissenting.

      I dissent.



                                          -10-
       The court errs today in ignoring the objective standard set out in Terry v. Ohio,
392 U.S. 1 (1968), that the information available to the officer at the moment of the
seizure is the determining issue in our analysis. The record demonstrates that the
facts available to Officer Hedberg were that the owner of the Tracker was white,
whereas Barlow was African-American. Therefore, Barlow could not be the owner.
The court remands for credibility assessment on an issue not relevant under Terry.
I would reverse and instruct the district judge to set aside the conviction.

       Police may not stop a car to check the driver's license and registration without
a reasonable, articulable suspicion that the driver is unlicensed, that the car is
unregistered, or that the car or its occupants are otherwise subject to seizure for
violation of the law. Delaware v. Prouse, 440 U.S. 648, 663 (1979). An officer who
has such a reasonable, articulable suspicion may stop the car long enough to conduct
an investigation that is "reasonably related in scope to the circumstances which
justified the interference in the first place." United States v. Jones, 269 F.3d 919, 924
(8th Cir. 2001) (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)). Accord Florida v.
Royer, 460 U.S. 491, 500 (1983). However, the intrusion must last no longer than is
necessary to effectuate the purpose of the stop, and the officer must use the least
intrusive means available to dispel his suspicion quickly. Royer, 460 U.S. at 500;
Jones, 269 F.3d at 924. Once the suspicion that justified the stop has been shown to
be baseless, the officer may not detain the car or its occupants unless something else
has happened to generate another ground for detention. Jones, 269 F.3d at 925;
United States v. Watts, 7 F.3d 122, 126 (8th Cir. 1993) ("[A]n investigative stop must
cease once reasonable suspicion or probable cause dissipates."). Further detention
after the original reason for the stop has been achieved (without consent or some
intervening ground having arisen) violates the detainee's right to be free from
unreasonable seizure. Jones, 269 F.3d at 929; United States v. Belcher, 288 F.3d
1068, 1070 (8th Cir. 2002); United States v. Beck, 140 F.3d 1129, 1134 (8th Cir.
1998).



                                          -11-
       The validity of the seizure of the gun, and therefore the outcome of this appeal,
hinges on the propriety of Hedberg's actions in the short time between his seeing that
the driver was a woman and receiving the answer that she did not have her driver's
license with her. Up until the time that Hedberg saw the driver was a woman, he
could not tell who was driving the car and he had reasonable grounds to suspect that
it might be a person who was wanted on a misdemeanor warrant. If Hedberg was
justified in asking for the license, after the driver said she did not have her license,
Hedberg would have been justified in detaining her long enough to find out whether
she was in fact a licensed driver. Each subsequent step of the investigation was at
least arguably justified by what came before. Therefore, the crucial question in this
case is whether Hedberg was obliged to let the car go once he saw that the driver did
not match the description of the person wanted for the misdemeanor.

                                           I.

       The government seeks to justify Hedberg's action in asking the driver for her
driver's license after he saw she could not be the owner of the Tracker by arguing that
Hedberg could have thought one of the passengers was the owner. Hedberg never
claimed that he thought one of the passengers might be the owner. At the suppression
hearing he said only that he was investigating whether the driver might be the person
wanted on the warrant:

      I couldn't tell at the time, you know, whether it was a male or female
      driver in the vehicle. . . . I was going to go back to the alley and ask the
      person that was driving whether they were the listed owner or not. . . .

Later, he repeated this reason, and then added that he wanted to investigate why the
passengers were back in the car if they had just been dropped off at home.5

      5
        The government does not contend that the passengers' presence back in the car
after saying they lived at the house was a reasonable ground for stopping the car. Nor

                                         -12-
      Q: And why did you initiate the traffic stop at that time?
      A: Well, number one, I didn't know who was actually driving the
      vehicle. I knew it was a Caucasian. I thought maybe it was the person
      that had the listed warrant, that and the answer that I got from the two
      males, stating that they lived there. They weren't in the alley very long.

On cross examination, Barlow's attorney asked and Hedberg answered:

      Q: And it was when that came back as a misdemeanor warrant for a Mr.
      Peterson that you then decided to go back and see whether he was
      driving the car?
      A: I was going to go back and see whether Mr. Peterson was in the car.

The actual chain of events also demonstrates that Officer Hedberg was focused on the
driver, not the passengers, since he first asked the driver for identification and only
returned to question the passengers after the driver had told him she did not know one
of her passengers.

      I recognize that Officer Hedberg's subjective intent is not determinative in
deciding whether the stop was reasonable, Whren v. United States, 517 U.S. 806, 813
(1996), but in this case the evidence at the hearing followed the officer's train of
thought, which was that the driver, not the passengers, might be the subject of the
warrant. Neither the prosecutor nor defense counsel explored whether Hedberg had
reasonable grounds to believe one of the passengers might be the owner of the
Tracker, and Hedberg never stated that he suspected the passengers, nor gave
reasonable grounds for any such suspicion. As Barlow now points out, both
passengers were black, and the owner of the Tracker was listed as white on the
computer information that alerted Hedberg to the existence of the misdemeanor
warrant. Deciding whether the government can justify the detention of the car and



does the government contend that Hedberg had any reason to suspect the car was
stolen; his computer report on the car indicated it had not been reported stolen.

                                         -13-
its occupants based on reasonable suspicion that one of the passengers was the owner
requires us to determine whether the record evidence would support such a suspicion.

      Because at the suppression hearing no one focused on whether Hedberg
suspected one of the passengers of being the owner, Hedberg's testimony is only
obliquely relevant to whether he had facts in his possession that would have
supported such a suspicion. At the hearing, the prosecutor asked and Hedberg
answered:

      Q: What information did you get from the listing on your computer?
      A: It came back that the listed owner had a misdemeanor warrant. And
      it was listed to a male, and I couldn't tell at the time, you know, whether
      it was a male or female driver in the vehicle.
      Q: Did the listing give you a race of the person who was the owner, do
      you know that?
      A: No, not with the listing it doesn't. It just gives you the eye color and
      the hair color.

      Based on this testimony, the magistrate judge stated that the record was
inadequate to support a conclusion that Hedberg had grounds for reasonable
suspicion that one of the passengers was the owner:

            Officer Hedberg stopped the vehicle. As he approached, he
      noticed that the driver was a woman and could not be the subject of the
      misdemeanor warrant. (A registration typically reveals a brief
      description of the owner, however, during his testimony, Officer
      Hedberg was not asked about that description. The physical appearance
      of the owner remains unknown, so the evidence does not disclose
      whether a reasonable officer would have reached a conclusion as to
      whether the male passengers might have been the owner of the car and
      the subject of the warrant.)




                                         -14-
The magistrate judge therefore did not base his recommendation on the theory that
Hedberg had grounds to investigate the passengers, but instead relied on a general
rule that an officer who has reasonable grounds to initiate a traffic stop may ask to see
the driver's license, relying on United States v. Allegree, 175 F.3d 648, 650 (8th Cir.
1999).

       However, at the plea hearing, Barlow's counsel renewed the motion to
suppress, now based on the theory that the warrant information showed that the owner
of the Tracker was white and so the two black passengers could not be suspects. To
preserve a record supporting this theory, Barlow's counsel moved to introduce Exhibit
10, a print-out of the information Hedberg received by computer that night. Barlow's
counsel had marked and used Exhibit 10 in her cross examination of Hedberg at the
suppression hearing, but had not introduced it into evidence. At the plea hearing,
counsel assured the court that the substance of Exhibit 10 had been before the
magistrate judge at the suppression hearing by virtue of her cross examination. Based
on this assurance and the government's agreement to admission of the exhibit, the
court allowed Exhibit 10 to be made part of the record, but denied the renewed
motion to suppress.

       Exhibit 10 was used at the suppression hearing to elicit Hedberg's testimony
that he knew that the owner of the Tracker was a male and that he recognized as he
approached the car that the driver did not match the description of the owner.
Contrary to Barlow's counsel's assertion to the district court that the substance of
Exhibit 10 was before the magistrate judge, she now contends that the crucial part of
Exhibit 10 is that it shows the owner of the Tracker was white.6 This was not brought

      6
       The paragraph of Exhibit 10 that first reveals the existence of a misdemeanor
warrant is as follows:
      From: CJIS To: 467 #960445/04 07/28/1997 00:12:43 CDT
      +MH2 1 1730 4066 1 MPA MPA M 3 B 40 40 40 A4
      1 2 67X MPA 4 JUL 28 1997 00:11:26 MN02711L1

                                          -15-
out in testimony before the magistrate judge by counsel for either side. To the
contrary, Hedberg testified on direct examination that the computer information did
not show race, although he said it did show hair and eye color.

       On this record, there are two reasons why the government has failed to
establish that Hedberg had reasonable grounds to suspect the passengers were the
owner of the Tracker. First, at the suppression hearing, the government failed to
prove the facts to support the conclusion it wants us to draw. The magistrate judge
observed that the government had not asked Hedberg about the registration
description of the owner. The magistrate judge remarked, "[T]he evidence does not
disclose whether a reasonable officer would have reached a conclusion as to whether
the male passengers might have been the owner of the car and the subject of the
warrant." Accordingly, the magistrate recommended no finding of fact that Hedberg
was unaware that the owner of the car was white and made no legal conclusion that
Hedberg could reasonably have suspected one of the passengers was the owner of the
car.

      The record at the suppression hearing would have supported no such finding
or conclusion. Hedberg testified at the hearing that the computer misdemeanor listing


      IMMEDIATELY CONFIRM RECORD WITH ORI
      SCR/100.MIN/992083. RTY/MISDMNR.KAP/Y. ORI/MN08200W1.
      NAM/PETERSON, JOHNATHAN TAYLOR.DOB/090375.
      SEX/M. RAC/W. HGT/510. WGT/200. EYE/BLU.HAI/XXX.
      OFF/M4199.BND/500.
      MIS/PUBLIC CONSUMPTION, UNDERAGE CONSUMPTION.
      OCA/96028021. WNO/96028021.DOW/100996.
      DRE/101596. DLU/101596. TMR/WCZ.
      PIK/MN.

(Emphasis added).


                                        -16-
did not state the race of the owner, which in fact was incorrect. However, Hedberg
never said that he did not know whether he was looking for a white person or a black
person. No one asked him this question, because the hearing testimony only focused
on the driver, who was white. As the magistrate judge surmised even without seeing
Exhibit 10 ("A registration typically reveals a brief description of the owner. . . ."),
the computer database that Hedberg drew on could be expected to include some kind
of description of the person wanted for the misdemeanor. Hedberg said the computer
misdemeanor entry showed hair and eye color, which might have ruled out a black
suspect, although no one questioned Hedberg about this. Moreover, Hedberg did not
behave as if he thought the passengers might be the owner of the Tracker; he did not
ask them for their driver's licenses. Instead, he focused solely upon the white driver
of the car, leading her to the squad car while he left the passengers unattended in the
Tracker. His focus on the driver supports the inference that he was looking for a
white person. With these facts in the record suggesting that Hedberg likely knew he
was looking for a white person, it became incumbent on the government to show he
had reason to think one of the passengers was the warrant suspect. The government
did not do this.

        Second, the addition of Exhibit 10 to the record after the suppression hearing,
which the government agreed to, shows conclusively that there was no reasonable
ground to suspect one of the passengers was the warrant suspect. Regardless of what
Hedberg would have said he knew about the warrant suspect's race if anyone had
asked him at the hearing, there is undisputed evidence that the computer report which
listed the warrant also showed the warrant suspect was white. In determining whether
a stop was reasonable, the court looks at the facts available to the officer carrying out
the stop:

      [I]n making [the reasonableness] assessment it is imperative that the
      facts be judged against an objective standard: would the facts available
      to the officer at the moment of the seizure or the search "warrant a man

                                          -17-
      of reasonable caution in the belief" that the action taken was
      appropriate?

Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Accord Scott v. United States, 436 U.S.
128, 137 (1978); United States v. Owens, 101 F.3d 559, 561 (8th Cir. 1996). The
computer transmission that gave Hedberg the information that there was a
misdemeanor warrant on the owner of the Tracker also listed the owner's race as
white.

       Officer Hedberg agreed at the suppression hearing that Exhibit 10 was a print-
out of his calls that night, and he identified the time of the first call as twelve minutes
and thirty-three seconds after midnight, which corresponds to the heading on Exhibit
10. Counsel directed his attention to Exhibit 10 and he said, "That looks like what
would have come back on the computer." He testified that based on the information
about the outstanding warrant, he decided to see if the subject of the warrant was in
the car.

      The transmission that was before Officer Hedberg informing him that the
owner had a misdemeanor warrant outstanding also contained entries showing the
owner's race was white and his eyes were blue.7 The race information was two lines
away from, and in between, the entries showing the existence of the warrant.

       The record leaves no doubt that Hedberg had before him information showing
the suspect was white. He knew the passengers were black. Therefore, the
government has not established that Hedberg had reasonable grounds to suspect either
of the passengers might be the person described in the warrant.




      7
          The text of the computer transmission is set out at note 2, supra.

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                                           II.

       The government argues that under United States v. Allegree, 175 F.3d 648, 650
(8th Cir. 1999), an officer who has reasonable suspicion sufficient to justify a traffic
stop may, as a matter of course, ask for identification from the driver and all
passengers. I conclude that this case is unlike Allegree and that the detention past the
point at which the officer's suspicions were dispelled was unreasonable.

       In Allegree, a police officer stopped a car because he thought it had blue
headlights, which were only permitted on emergency vehicles under state law. The
officer approached and told the driver why he had stopped him; the driver replied that
the headlights were purple, not blue. The officer nevertheless asked to see
identification for each of the occupants of the car and registration papers for the car.
The stop eventually led to the discovery of methamphetamine in the car, and the
driver and passenger moved to suppress the evidence, arguing that the detention
continued beyond the proper scope of the stop. We held that the investigation was
reasonably related to the purpose of the stop: "A reasonable investigation following
a justifiable traffic stop may include asking for the driver's license and registration,
asking the driver to sit in the patrol car, and asking about the driver's destination and
purpose." 175 F.3d at 650. Although this statement is eminently reasonable in the
ordinary traffic violation situation, in which it will take some amount of contact with
the detainees to address the reasons for the stop, see generally Maryland v. Wilson,
519 U.S. 408 (1997); United States v. Jones, 269 F.3d 919, 924-25 (8th Cir. 2001),
this case was not a traffic violation stop. The reasoning of the traffic violation cases
does not apply to the situation in this case in which the officer saw as soon as he
approached the car that the driver was not the person he suspected she might be. In
Allegree the driver told the officer that the light was purple rather than blue, but the
officer could reasonably believe it proper to check this out for himself, rather than
just taking the driver's word for it. This made appropriate the preliminary precautions
that officers routinely carry out in traffic violation stops, such as asking for

                                          -19-
identification. See United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir.1994);
United States v. Beck, 140 F.3d 1129, 1134 (8th Cir. 1998). Here, on the other hand,
the officer had no need for further investigation to dispel his original suspicions.
This case is analogous to the situation in United States v. McSwain, 29 F.3d 558
(10th Cir. 1994), in which a trooper stopped a car because he suspected the
registration sticker had expired. Once the car was stopped, the trooper saw that the
sticker had not expired. He nevertheless asked for identification. The Tenth Circuit
held that the continued detention was unconstitutional because, before ever speaking
to the driver, the trooper had completely resolved the question that prompted him to
stop the car. 29 F.3d at 561. Similarly, in this case there was no viable reason to
detain the car any longer, and Officer Hedberg should have let the Tracker continue
on its way.

      Accordingly, I can find no reason justifying Officer Hedberg's action in
demanding the driver's license. The discovery of the evidence flowed from an
unreasonable detention, and I would reverse the district court's denial of the motion
to suppress evidence.

      A true copy.

             Attest:

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




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