                                                                                FILED
                                                                    United States Court of Appeals
                                       PUBLISH                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       August 24, 2017

                                                                       Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                         Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-5125

JOHN ELDRIDGE CONE,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                       for the Northern District of Oklahoma
                          (D.C. No. 4:16-CR-00003-CVE-1)
                       _________________________________

Submitted on the briefs:*

Julia L. O’Connell, Federal Public Defender, Barry L. Derryberry, Assistant Federal
Public Defender, and Stephen J. Greubel, Senior Litigator, Office of the Federal Public
Defender, Northern District of Oklahoma, Tulsa, Oklahoma, for Defendant-Appellant.

Danny C. Williams, Sr., United States Attorney, and Leena Alam, Assistant United States
Attorney, Office of the United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.
                        _________________________________

Before HARTZ, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________

HARTZ, Circuit Judge.
                         _________________________________

*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument.
       Defendant John Eldridge Cone pleaded guilty to possession of controlled

substances with intent to distribute. See 21 U.S.C. §§ 841(a)(1), (b)(1)(C). But he

reserved the right to appeal the district court’s denial of his motion to suppress the

evidence seized from his car by a police officer during a traffic stop. His sole argument

on appeal is that the officer exceeded the Fourth Amendment bounds of the stop by

asking him about his criminal history and travel plans. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.

       The proper scope of a traffic stop includes “certain negligibly burdensome

precautions” taken for officer safety. Rodriguez v. United States, 135 S. Ct. 1609, 1616

(2015). Brief questions about a driver’s criminal history are no more burdensome than

computer background checks, which circuit precedent has routinely permitted. And

because Defendant fails to show the necessary causal connection between the travel-plan

question and the discovery of the drugs, we need not address the validity of that question.

       I.     BACKGROUND

       On November 29, 2015, Tulsa Police Officer Peter Maher was driving on patrol.

About 10:30 p.m. he noticed a white pickup truck crossing through an intersection on

41st Street without a functioning license-plate light, in violation of Oklahoma law.

       Without activating his emergency lights, Maher turned around to pursue the truck.

He found the truck in a motel parking lot, near another motel well known for criminal

activity. In recent months he and his partners had made numerous arrests for narcotics

trafficking and firearms offenses in the immediate area. Maher parked his vehicle,




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approached Defendant’s parked truck by foot, and knocked on the driver’s side window.

About two minutes had passed since Maher first observed the traffic violation.

       When Defendant lowered his window, Maher asked for his driver’s license and

informed him that his car’s tag light was not functioning. Defendant acknowledged that

he was the person who had been driving on 41st Street. Maher asked if Defendant had

“ever been in trouble before” (to which Defendant replied yes), R., Vol. III at 20, and

whether he had “been to prison before” (to which Defendant again replied yes), id. at 21.

Maher asked “For what?” and Defendant falsely claimed that it was for money

laundering. Id. Maher testified that “the vast majority of the time” he would question

those he has pulled over “[t]o assess somebody’s criminal history, to determine if they

have any violent history in their past that might pose a safety risk to me . . . or my

partners during the course of an encounter.” Id. at 21.

       Maher also asked a question along the lines of “What are you doing here?” or

“Who are you visiting here?” about which he and Defendant spoke “very, very briefly.”

Id. at 46. Planning to run a warrant inquiry and status check of Defendant’s license,

Maher followed his typical practice of requesting drivers to step out of their vehicles

while he ran the computer check. He said that he makes the request for his own safety, a

particular concern here because he was alone. As Defendant got out, Maher noticed the

butt of a pistol protruding from underneath the truck’s center console. Maher drew his

pistol and told Defendant to get on the ground. After a brief exchange Defendant

attempted to flee but Maher apprehended him. Officer Kristi Score soon arrived and

secured Defendant’s truck, where she found the pistol to be loaded. As she unloaded the


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firearm, she detected the odor of marijuana emanating from the passenger side of the

truck. She opened the passenger-side door and found a backpack containing drugs,

including marijuana and methamphetamine, as well as small bags and digital scales.

       Defendant was charged with one count of being a felon in possession of a firearm;

one count of possessing methamphetamine, cocaine, oxycodone, and MDMA with intent

to distribute; and one count of possessing a firearm in relation to a drug-trafficking crime.

He moved to suppress the seized evidence, raising two grounds at the suppression

hearing: One, he attacked Maher’s credibility regarding the events surrounding the stop;

and two, he argued that even under the disputed version, the officer conducted an

improper investigation by questioning Defendant about subjects that were irrelevant to

the tag-light offense. The United States District Court for the Northern District of

Oklahoma denied the motion.

       On May 4, 2016, Defendant entered into a plea agreement and pleaded guilty to

possession of controlled substances with intent to distribute. In return, the government

dismissed the remaining two counts. Defendant reserved his right to appeal the denial of

his motion to suppress. He was sentenced to 151 months’ imprisonment.

       II.    DISCUSSION

       “When reviewing the denial of a motion to suppress, we view the evidence in the

light most favorable to the government, accept the district court’s findings of fact unless

they are clearly erroneous, and review de novo the ultimate question of reasonableness

under the Fourth Amendment.” United States v. McNeal, 862 F.3d 1057, 1061 (10th Cir.

2017) (internal quotation marks omitted). A traffic stop must be justified at its inception


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and, in general, the officer’s actions during the stop must be reasonably related in scope

to “the mission of the stop itself.” Rodriguez, 135 S. Ct. at 1616; see United States v.

Davis, 636 F.3d 1281, 1290 (10th Cir. 2011). In particular, questioning on matters

unrelated to that mission is improper if it “measurably extend[s] the duration of the stop.”

Rodriguez, 135 S. Ct. at 1615 (internal quotation marks omitted). Defendant contends on

appeal that the officer’s questions about his criminal history and travel plans were

unrelated to the mission of the traffic stop and measurably extended its duration.

       We first address our standard of review. The government contends that Defendant

did not preserve in district court the argument he makes on appeal. At the suppression

hearing Defendant argued that Maher’s questions were unrelated to the purpose of the

traffic stop. He did not, however, assert that they improperly prolonged the stop. The

preservation question is thus whether improper prolongation was implicit in Defendant’s

objection, particularly given that the government’s brief in response to the motion to

suppress had asserted that questions unrelated to a stop are not grounds for suppression

unless they “excessively prolong the stop.” R., Vol. I at 23. But we need not answer that

question. We can assume that Defendant preserved his appellate issue in the district

court because we reject his claim on the merits. We hold that the criminal-history

questions were lawful and that Maher’s other inquiry had no effect on the later police

actions that revealed Defendant’s drug offense.

              A. Criminal-History Questions

       Maher asked Defendant whether he had “ever been in trouble before,” whether he

had “been to prison before,” and “for what” he had been convicted. R., Vol. III at 20‒21.


                                             5
Defendant argues that these questions had no direct relation to his broken tag light. But

an officer’s mission during a traffic stop is not limited to determining whether to issue a

ticket. See Rodriguez, 135 S. Ct. at 1615. The Supreme Court has declared that this

mission “includes ordinary inquiries incident to the traffic stop.” Id. (brackets and

internal quotation marks omitted). And recognizing that “[t]raffic stops are especially

fraught with danger to police officers,” id. at 1616 (internal quotation marks omitted), the

Court has included among such inquiries “negligibly burdensome” inquiries that an

officer needs to make “in order to complete his mission safely,” id. As the Court stated,

“[T]he government’s officer safety interest stems from the mission of the stop itself.” Id.

Notable for our purposes, the one case cited by the Court as providing an example of a

proper inquiry was this court’s en banc decision in United States v. Holt, 264 F.3d 1215,

1221‒22 (10th Cir. 2001) (en banc), abrogated on other grounds as recognized in United

States v. Stewart, 473 F.3d 1265, 1269 (10th Cir. 2007). As described in Rodriguez, our

Holt decision “recogniz[ed] [an] officer safety justification for criminal record and

outstanding warrant checks.” 135 S. Ct. at 1616; see also United States v. Burleson, 657

F.3d 1040, 1046 (10th Cir. 2011) (“[A]n officer may run a background check on a

motorist to check for warrants or criminal history even though the purpose of the stop had

nothing to do with the motorist’s history.”); United States v. Rice, 483 F.3d 1079, 1084

(10th Cir. 2007) (“While a traffic stop is ongoing . . . an officer has wide discretion to

take reasonable precautions to protect his safety. Obvious precautions include running a

background check on the driver and removing the occupants from the vehicle.” (citations




                                              6
omitted)); People v. Cummings, 46 N.E.3d 248, 252 (Ill. 2016) (recognizing approval of

Holt in Rodriguez).

       If running a computer check of a driver’s criminal history is justifiable as a

“negligibly burdensome” inquiry useful for officer safety, we fail to see how asking the

driver about that history could be unreasonable under the Fourth Amendment. The

information requested by Maher did not exceed the scope of what a computer check

would reveal. A driver’s answer may not be as reliable as a computer check but the time

involved is much shorter. And just “allowing the officer to ask the question may provide

important clues pertaining to safety,” such as nervous or evasive responses. Holt, 264

F.3d at 1224 (referring to officer’s question about presence of firearms); see United

States v. Dion, 859 F.3d 114, 127 n.11 (1st Cir. 2017) (suggesting that Rodriguez’s

approval of criminal-record checks could apply to officer questions about a driver’s

criminal history); United States v. Palmer, 820 F.3d 640, 651 (4th Cir. 2016) (in the

context of a computer check, saying that “[a] police officer is entitled to inquire into a

motorist’s criminal record after initiating a traffic stop.”).

       A recent decision of this court further supports the propriety of asking questions

that serve the purpose of officer safety. In United States v. Morgan, 855 F.3d 1122,

1125‒26 (10th Cir. 2017), the defendant argued that an officer’s request for identification

exceeded the permissible scope of a bicycle traffic stop because state law did not require

a license for bicycling. In upholding the officer’s request, we pointed out that “[c]ourts

have long recognized that questions concerning a suspect’s identity are a routine and

accepted part of police investigations.” Id. at 1126 (internal quotation marks omitted).


                                               7
The justification for this, we said, was that “‘[k]nowledge of identity may inform an

officer that a suspect is wanted for another offense, or has a record of violence or mental

disorder.’” Id. (quoting Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 186

(2004)). If asking for a person’s identity is justified because it may help to discover “a

record of violence,” id., surely there is nothing wrong with the more directly relevant

(and efficient) inquiry concerning criminal history. We conclude that the criminal-

history questions were not unreasonable under the Fourth Amendment.

              B. Travel-Plan Questions

       There remains the challenge to Maher’s asking Defendant something like “What

are you doing here?” or “Who are you visiting here?” R., Vol. III at 46. Defendant’s

contention is hardly frivolous. In Holt we explained that “[t]ravel plans typically are

related to the purpose of a traffic stop because the motorist is traveling at the time of the

stop.” 264 F.3d at 1221. As Defendant points out, however, “[i]nquiring into the

Defendant’s reason for being at the hotel was not related to the [broken tag light] or

vehicular travel, because the Defendant . . . had reached his destination.” Aplt. Br. at 12;

see LaFave, 4 Search and Seizure § 9.3(d) at 534 (5th ed. 2016) (rejecting argument that

travel-plan questions are reasonably related to traffic stops for broken tag lights). But we

need not address the merits of this argument because Defendant fails to show that

suppression of the evidence would be appropriate even assuming a Fourth Amendment

violation.

       To suppress evidence seized by officers, a defendant must establish a causal link

between the alleged Fourth Amendment violation and the discovery of the contested


                                              8
evidence. See Hudson v. Michigan, 547 U.S. 586, 592 (2006) (“Our cases show that but-

for causality is . . . a necessary . . . condition for suppression.”); United States v. Nava-

Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000) (“[A] defendant must adduce evidence at

the suppression hearing showing the evidence sought to be suppressed would not have

come to light but for the government’s unconstitutional conduct.”). In United States v.

Sanchez, 608 F.3d 685, 687 (10th Cir. 2010), for instance, the defendant’s daughter

consented to inspection of his home by two probation officers while he was away. The

officers were pursuing information that the defendant was living well beyond the means

afforded by his regular job, having bought a new house and car. See id. During the

officers’ tour of the house, they looked inside a clothes hamper in the defendant’s

bedroom closet and found $111,000 in cash. See Id. at 687‒88. One of the officers later

entered the garage and saw an open bag of marijuana on the floor. See id. at 688. We

agreed with the district court that the hamper search exceeded the scope of the daughter’s

consent but that the garage search did not. See id. at 691‒92. The defendant argued,

however, that the officers’ unlawful search of his clothes hamper tainted their subsequent

discovery of the marijuana as “fruit of the poisonous tree.” Id. at 691 (internal quotation

marks omitted). We disagreed, stating that “[t]o succeed in suppressing the marijuana,

[the defendant] must show the discovery would not have come to light but for the

government’s unconstitutional conduct.” Id. (internal quotation marks omitted). To

pursue their inquiry into the defendant’s spending, however, the officers would surely

have searched the garage anyway and there was no reason to believe that the daughter

would have withdrawn her consent. See id. at 692. We thus concluded that the defendant


                                               9
failed to demonstrate “but for” causation because “no factual nexus connect[ed] the

constitutional violation—the search of the clothes hamper—and the inspection of the

garage.” Id. at 691.

       Here as well, Defendant fails to show a factual nexus between the travel-plan

question and the discovery of drugs within his vehicle. The chain of events after Maher’s

questioning of Defendant was as follows: Maher asked Defendant to step out of his

vehicle while he ran a background check. Upon Defendant’s compliance, the pistol was

in plain view. The pistol was seized because Defendant, as a felon, could not lawfully

possess it. And the securing of the pistol led to the detection of the drugs. Thus, the

causal chain flows naturally from the request that Defendant exit his vehicle to the

discovery of the drugs. The Supreme Court has upheld the routine traffic-stop practices

of asking drivers to exit their vehicles and running warrant checks on them. See

Rodriguez, 135 S. Ct. at 1615‒16. The only causation question, then, is whether Maher

would have decided to run a background check and ask Defendant to exit his car if Maher

had not previously asked Defendant about the purpose of his travel. The answer is

clearly yes. Maher testified that he typically asked drivers to step out of their vehicles

while he ran a warrant check. And the district court found that Defendant was asked to

exit the vehicle because of officer-safety concerns. Defendant does not challenge this

factual finding, nor does he argue that the travel-plan question led to safety concerns.

Indeed, there is no evidence in the record regarding how Defendant answered the

question. In short, the necessary but-for causal connection between the travel-plan

question and the discovery of the evidence is absent.


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III.   CONCLUSION

We AFFIRM the district court’s judgment.




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