       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Richardson                 No. 02-6146
    ELECTRONIC CITATION: 2004 FED App. 0325P (6th Cir.)
                File Name: 04a0325p.06                    ON BRIEF: Steven L. Lane, U.S. DEPARTMENT OF
                                                          JUSTICE, CRIMINAL DIVISION, Washington, D.C., Debra
                                                          Teufel Phillips, ASSISTANT UNITED STATES
UNITED STATES COURT OF APPEALS                            ATTORNEY, Nashville, Tennessee, for Appellant. Hugh M.
                                                          Mundy, C. Douglas Thoresen, FEDERAL PUBLIC
              FOR THE SIXTH CIRCUIT                       DEFENDER’S OFFICE, Nashville, Tennessee, for Appellee.
                _________________
                                                            MARTIN, J., delivered the opinion of the court, in which
 UNITED STATES OF AMERICA ,       X                       MOORE, J., joined. KENNEDY, J. (pp. 11-16), delivered a
          Plaintiff-Appellant,     -                      separate dissenting opinion.
                                   -
                                   -  No. 02-6146                             _________________
            v.                     -
                                    >                                             OPINION
                                   ,                                          _________________
 WILLIAM EDWARD                    -
 RICHARDSON,                       -                        BOYCE F. MARTIN, Jr., Circuit Judge. The United States
           Defendant-Appellee. -                          of America appeals the district court’s grant of William
                                   -                      Edward Richardson’s motion to suppress evidence seized
                                 N                        from a vehicle in which he was a passenger. In light of the
       Appeal from the United States District Court       specific facts of this case and for the reasons that follow, we
    for the Middle District of Tennessee at Columbia.     AFFIRM.
   No. 02-00002—Thomas A. Higgins, District Judge.
                                                                                        I
               Argued: December 4, 2003
                                                             On October 19, 2000, Officer Darryl Fisher noticed a
        Decided and Filed: September 24, 2004             vehicle recklessly swerving between two eighteen-wheel
                                                          trucks on Interstate 65 in Tennessee. Officer Fisher pulled the
  Before: KENNEDY, MARTIN, and MOORE, Circuit             vehicle over for following too closely in violation of section
                    Judges.                               55-8-124 of the Tennessee Code. The entire traffic stop was
                                                          recorded by the video camera in Officer Fisher’s police car.
                  _________________
                                                            The following people were traveling in the vehicle: the
                       COUNSEL                            driver, Ricky Collier; the defendant, Richardson;
                                                          Richardson’s wife, Shirley Richardson; and their son,
ARGUED: Steven L. Lane, U.S. DEPARTMENT OF                William Darnell Richardson, whom we refer to as Darnell.
JUSTICE, CRIMINAL DIVISION, Washington, D.C., for         Officer Fisher requested to inspect Collier’s license. At this
Appellant. Hugh M. Mundy, FEDERAL PUBLIC                  point, Officer Fisher noticed that the occupants of the vehicle
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellee.    appeared nervous. In particular, he noticed that Collier’s

                            1
No. 02-6146                      United States v. Richardson             3    4     United States v. Richardson                     No. 02-6146

hand trembled as he presented his license and Darnell’s lips                    While Officer Fisher and Collier were talking, Darnell
quivered as he spoke. Upon learning that Shirley Richardson                   moved to the driver’s seat. Thus, when Officer Fisher
was the owner of the vehicle, Officer Fisher requested to                     returned to the driver’s side of the car, he asked Darnell for
inspect her driver’s license and registration. As she searched                his driver’s license. Darnell complied and Officer Fisher was
for this information, Shirley spilled all of the contents of her              satisfied with his identification. Officer Fisher then asked
purse onto the floorboard. Officer Fisher perceived this                      Darnell whether there were any guns in the car. Darnell
action as a sign of nervousness. He asked the vehicle’s                       responded that he had a gun in the vehicle. Darnell explained
occupants about their travel plans, to which Darnell                          that his employer, the Lawrence County Sheriff’s
responded that they had been to Nashville to see his lawyer.                  Department, authorized him to carry the gun. Darnell gave
The videotape’s sound recording reveals that Darnell also                     permission to Officer Fisher to inspect the gun. Upon
muttered something about having a back problem.                               inspection, Officer Fisher discovered that the gun was loaded.
                                                                              He stated that he would have to inquire into Darnell’s
   Officer Fisher then asked Collier to step to the back of the               employment and permit to carry the gun. Before doing so,
car. There, Officer Fisher informed Collier that he was going                 however, Officer Fisher asked for permission to search the
to issue a warning citation for traveling too closely to the first            vehicle. The parties dispute whether Shirley Richardson gave
truck. Collier remained behind the car while Officer Fisher                   her consent at this time.
returned to his police car, where he narrated his impressions
of the incident into the video camera, specifically noting the                  Officer Fisher then radioed for assistance and also
nervous appearance of the vehicle’s occupants.                                contacted the Lawrence County Dispatch to inquire about
                                                                              Darnell’s employment. The dispatcher erroneously informed
   When Officer Fisher returned, he asked Collier about his                   him that Darnell was not employed there and had been
travel plans. Collier responded that they had gone to                         arrested a few times for drug possession. At this point,
Nashville to see a doctor. Officer Fisher then gave the                       Officer Tommy Goetz arrived on the scene to assist.
citation to Collier and shook his hand, and Collier turned
around to return to his vehicle.                                                 Officer Fisher asked the occupants to exit the vehicle and
                                                                              empty their pockets. Defendant Richardson stated that his
   At that point, Officer Fisher asked Collier to answer a few                pants were too tight to empty his pockets. Officer Fisher
more questions, and Collier agreed. Officer Fisher asked                      patted down Richardson and noticed that Richardson turned
whether there were any drugs, money, or guns in the car, to                   his body to the left. Officer Fisher felt something on
which Collier responded in the negative. Then, instead of                     Richardson’s left side. He proceeded to ask Shirley
allowing Collier to return to the vehicle, Officer Fisher asked               Richardson again whether he could search the vehicle and she
Collier to remain behind the car while he asked Shirley                       responded in the affirmative. After Officer Fisher told Officer
Richardson for permission to search the car.1                                 Goetz that he had felt something on defendant Richardson’s
                                                                              left side, Officer Goetz conducted a second pat-down and
                                                                              discovered a handgun in Richardson’s pocket.
    1
      There is some dispute over the precise language that Officer Fisher
used to indicate that he d esired Collier to rem ain behind the car. T he
United States asserts that the district court erred as a factual matter in
finding that Officer Fisher told Collier to “wait where he was” and instead   okay?” This dispute , however, is not significant to our analysis and
asserts that Officer Fisher stated, “Okay, just hang out right here for me,   conclusion.
No. 02-6146                United States v. Richardson       5    6     United States v. Richardson                   No. 02-6146

  Richardson was placed under arrest and subsequently             detention because all occupants of a stopped vehicle are
indicted for possession of a firearm by a convicted felon in      subject to a Fourth Amendment seizure); see also Delaware
violation 18 U.S.C. §§ 922(g)(1) and 924(a). He moved to          v. Prouse, 440 U.S. 648, 653 (1979) (noting that each
suppress the handgun evidence as fruit of an unlawful seizure.    occupant has an interest in freedom from random,
The district court granted the motion to suppress, holding that   unauthorized, investigatory seizures); United States v.
Officer Fisher seized the vehicle and its occupants for no        Kimball, 25 F.3d 1, 5 (1st Cir. 1994) (“interest in freedom of
reasonable suspicion. The United States filed this timely         movement and the interest in being free from fear and
appeal.                                                           surprise are personal to all occupants of a vehicle”).
                              II                                     Unlawful seizure occurs when an officer, without
                                                                  reasonable suspicion, “by means of physical force or show of
   In reviewing the judgment, we are asked to decide two          authority . . . in some way restrain[s] the liberty of a citizen.”
questions: 1) whether the vehicle and its occupants were          Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). One’s liberty is
unlawfully seized following the conclusion of the traffic stop,   restrained when a reasonable person would not feel free to
and 2) whether the handgun evidence found thereafter was          walk away and ignore the officer’s requests. United States v.
fruit of the unlawful seizure. We review the district court’s     Mendenhall, 446 U.S.544, 554 (1980). In United States v.
factual findings in a suppression hearing for clear error and     Hill, 195 F.3d 258, 264 (6th Cir. 1999), cert. denied, 528 U.S.
the district court’s conclusions of law de novo. United States    1176 (2000), this Court determined that “[o]nce the purposes
v. Waldon, 206 F.3d 597, 602 (6th Cir.), cert. denied, 531        of the traffic stop [are] completed, a motorist cannot be
U.S. 881 (2000); United States v. Guimond, 116 F.3d 166,          further detained unless something that occurred during the
169 (6th Cir. 1997), cert. denied, 530 U.S. 1268 (2000);          stop caused the officer to have a reasonable, articulable
United States v. Bradshaw, 102 F.3d 204, 209 (6th Cir. 1996).     suspicion that criminal activity was afoot.” See also United
Also, because we are reviewing the grant of a motion to           States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995) (“Once the
suppress, we review the evidence “in the light most likely to     purposes of the initial traffic stop were completed, there is no
support the district court’s decision.” Guimond, 116 F.3d at      doubt that the officer could not further detain the vehicle or its
169 (quoting United States v. Roark, 36 F.3d 14, 16 (6th Cir.     occupants unless something that occurred during the traffic
1994)).                                                           stop generated the necessary reasonable suspicion to justify
                                                                  a further detention.”). Thus, in determining whether the
       A. Seizure of the vehicle and its occupants                Fourth Amendment forbids the action taken by Officer Fisher
                                                                  in this case, we must decide whether there was a seizure, and,
  The primary interests that the Fourth Amendment protects        if so, whether Officer Fisher had reasonable suspicion for
include an interest in freedom of movement and insulation         effecting the seizure.
from the fear and anxiety produced by unlawful seizure. In
the traffic stop scenario, these interests are personal to all      In determining whether a particular encounter between an
occupants of the vehicle that is detained, United States v.       officer and a citizen constitutes a seizure, we recognize that
Mesa, 62 F.3d 159 (6th Cir. 1995), because the detention          words alone may be enough to make a reasonable person feel
affects an occupant’s interest in freedom from such seizures.     that he would not be free to leave. See United States v.
See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 450     Buchanon, 72 F.3d 1217, 1233 (6th Cir. 1995) (quoting
(1990) (recognizing that a passenger may challenge his            Mendenhall, 446 U.S. at 554). In the instant case, the traffic
No. 02-6146                 United States v. Richardson       7    8      United States v. Richardson                No. 02-6146

stop concluded when Officer Fisher handed Collier the              Cir. 1996)). At the outset, we recognize that “[r]easonable
citation and shook his hand. Collier was then free to leave,       suspicion is more than an ill-defined hunch; it must be based
until Officer Fisher asked him to remain behind the vehicle.       upon a particularized and objective basis for suspecting the
The United States makes much of the fact that Officer Fisher       particular person . . . of criminal activity.” United States v.
did not display an intimidating demeanor or use coercive           Cortez, 449 U.S. 411, 417-18 (1981). We view the evidence
language, but rather said, “Okay, just hang out right here for     offered in support of reasonable suspicion using a common
me, okay?” Regardless of Officer Fisher’s demeanor,                sense approach, as understood by those in the field of law
however, his words alone were enough to make a reasonable          enforcement. Id.
person in Collier’s shoes feel that he would not be free to
walk away and ignore Officer Fisher’s request. When the              In support of its argument that reasonable suspicion
driver is not free to leave, neither are his passengers; indeed,   justified the seizure, the government combines the following
the passengers are at the mercy of any police officer who is       factors:
withholding the return of their driver. See Sitz, 496 U.S. at
450; Prouse, 440 U.S. at 653; Kimball, 25 F.3d at 5. Thus,             (1) Nervousness, as evidenced by Collier’s trembling
defendant Richardson’s freedom of movement was subject to                  hand, Darnell Richardson’s quivering lip and
the will of Officer Fisher for as long as Officer Fisher                   difficulty speaking, and Shirley Richardson’s
detained Collier behind the car.                                           spilling of the contents of her purse;

  The United States argues that while the occupants may not            (2) Allegedly conflicting explanations of their travel
have wanted to leave the scene, that “says nothing about                   plans; and
whether Officer Fisher’s conduct toward them was coercive.”
However, so long as Collier obeyed Officer Fisher’s                    (3) Darnell Richardson’s movement to the driver’s seat.
instruction to remain outside of the vehicle, his passengers
were as unable as he to leave the scene. Also, that Darnell        The district court concluded that there was nothing inherently
moved from his original position to the driver’s seat does not     suspicious about the group’s nervousness in this instance. We
affect our conclusion. This movement by itself indicates           agree, and note that although nervousness has been
nothing about his willingness to drive away without Collier        considered in finding reasonable suspicion in conjunction
or his belief that he could lawfully take such action.             with other factors, Mesa, 62 F.3d at 162, it is an unreliable
                                                                   indicator, especially in the context of a traffic stop, United
                  B. Reasonable suspicion                          States v. Saperstein, 723 F.2d 1221, 1228 (6th Cir. 1983).
                                                                   Many citizens become nervous during a traffic stop, even
  Having concluded that a seizure occurred, we now address         when they have nothing to hide or fear. Also, the allegedly
whether Officer Fisher had the requisite reasonable suspicion      conflicting explanations of their travel plans are not mutually
to seize Collier and his passengers. In doing so, we must          exclusive; it is entirely plausible that the group traveled both
determine from the totality of the circumstances whether the       to see a doctor and a lawyer. Finally, even Officer Fisher
seizure was supported by “‘specific and articulable facts that     stated that he was not concerned that Darnell Richardson
give rise to a reasonable suspicion of criminal activity.’”        moved to the driver’s seat, and the United States has made no
United States v. Orsolini, 300 F.3d 724, 728 (6th Cir. 2002)       attempt to explain why such behavior would be suspicious.
(quoting United States v. Palomino, 100 F.3d 446, 449 (6th         Indeed, there are innocent and plausible explanations for this
No. 02-6146                 United States v. Richardson        9    10   United States v. Richardson                  No. 02-6146

behavior—e.g., perhaps Darnell thought that Collier, after          a gun, thereby purging the original taint of the unlawful
driving recklessly, needed to take a break from driving.            seizure.
  The United States argues that the district court erred by            We shall, in our discretion, decline to address this argument
considering each factor individually and that when                  because, as the United States conceded, it did not raise the
considering the factors in combination, reasonable suspicion        argument before the district court. See Singleton v. Wulff, 428
existed to further detain Collier and his passengers. We            U.S. 106, 120-21 (1976) (“The matter of what questions may
recognize that even a string of innocent behavior added             be taken up and resolved for the first time on appeal is one
together may amount to reasonable suspicion of criminal             left primarily to the discretion of the courts of appeals, to be
activity. See United States v. Arvizu, 534 U.S. 266, 273-75         exercised on the facts of individual cases.”). Indeed, courts
(2002). Yet, regardless of whether the district court               of appeals generally should decline to consider arguments that
improperly analyzed each factor individually, our independent       were not raised below and were not passed on by the district
review leads us to conclude that reasonable suspicion did not       court. Hormel v. Helvering, 312 U.S. 552, 556 (1941).
exist. See United States v. Smith, 263 F.3d 571, 591, 594 (6th
Cir. 2001) (concluding, over the government’s objection that                                      IV
the district court erred in analyzing each suspicious factor
individually, that “[e]ven considering all of the government’s        For the foregoing reasons, we affirm the judgment of the
proffered factors as a whole, we must conclude that [the]           district court.
Officer . . . did not possess a reasonable, articulable suspicion
that criminal activity was afoot”). Under the totality of the
circumstances, the factors upon which the United States relies
do not add up to a reasonable suspicion of criminal activity.
Although “there is always a temptation in cases of this nature
when . . . firearms are found to let the end justify the means,”
we must resist such temptation. Mesa, 62 F.3d at 163.
                              III
  Absent reasonable suspicion, the evidence obtained as a
result of the unlawful detention in this case must be
suppressed as fruit of the unlawful seizure. There is,
however, an exception to the rule when the causal chain is
broken by a voluntary statement. United States v. Brown, 422
U.S. 590 (1975); United States v. Arias, 344 F.3d 623 (6th
Cir. 2003). The United States argues that even assuming that
defendant Richardson was unlawfully seized, Darnell
Richardson’s voluntary, intervening admission that he was
carrying a gun broke the causal chain between their illegal
detention and the discovery that defendant Richardson carried
No. 02-6146                 United States v. Richardson       11    12       United States v. Richardson                     No. 02-6146

                    _________________                               writing out the citation, the deputy asked the driver and his
                                                                    passenger a number of questions concerning the purpose of
                        DISSENT                                     their trip.1 Id. at 261-63. After he completed the processing
                    _________________                               of the traffic violation, the deputy decided to detain the
                                                                    occupants in order to have his drug detection dog sniff the U-
  KENNEDY, Circuit Judge. Because I believe that the                Haul for the presence of narcotics. Id. at 263. Refusing to
conduct of Officer Fisher did not violate the defendant’s           permit the driver and passenger to leave in order to have a
Fourth Amendment rights, I would reverse the district court’s       drug detection dog sniff the vehicle certainly constituted a
decision finding that Officer Fisher seized the defendant when      detention of the driver and passenger. For this detention to be
he requested Collier to remain outside the car while he             justified, it needed to be based upon reasonable suspicion,
intended to ask the car’s owner for permission to search it.        which the court found existed. Id. at 270.
  Neither the defendant nor the majority question the validity         In Mesa, like Hill, the defendant was stopped for speeding.
of the traffic stop nor the questioning of Collier at the rear of   After the defendant retrieved her driver’s license, the officer
the car. Rather, the majority holds that once Officer Fisher’s      “directed the defendant to sit in the back seat of [his] police
consensual questioning with Collier was completed, the              vehicle.” 62 F.3d at 160. While the officer was writing out
officer was then required to permit Collier to immediately re-      the warning citation, he asked her a number of questions
enter the car and thus permit the occupants, including the          regarding her destination. Id. After he finished writing out
defendant, to be on their way; and that a delay, caused by the      the citation and received her signature on it, he did not allow
officer’s decision to ask the owner for permission to search        her to leave his vehicle, and she could not have voluntarily
the car for drugs or guns, resulted in an unlawful detention of     left the vehicle because the doors to the back seat of the
the defendant. In reaching its conclusion, the majority relies      police car could not be opened from the inside. Id. The
upon our decisions in United States v. Hill, 195 F.3d 258 (6th      officer then proceeded to ask the defendant “additional
Cir. 1999) and United States v. Mesa, 62 F.3d 159 (6th Cir.         questions totally unrelated to the initial traffic stop.” Id. at
1995). It cites these decisions for the same proposition,           161. Eventually, the officer asked for, and obtained, her
namely: “Once the purposes of the traffic stop [are]                consent to search her vehicle. Id. The court opined, as did
completed, a motorist cannot be further detained unless             the court in Hill, that “[o]nce the purposes of the initial traffic
something that occurred during the stop caused the officer to       stop were completed, ... the officer could not further detain
have a reasonable, articulable suspicion that criminal activity     the vehicle or its occupants ... [without] reasonable suspicion
was afoot.” Hill, 195 F.3d at 264; See also Mesa, 62 F.3d at        to justify [it].” Id. at 162. It then considered whether there
162. As the majority notes, the issue in this case is whether,      was reasonable suspicion to justify the further detention. Id.
after the completion of the traffic stop, the defendant was
seized, and, if so, whether the seizure was supported by
reasonable suspicion.                                                    1
                                                                          As we recently noted in United States v. Burton, 334 F.3d 514, 518
                                                                    (2003), asking more que stions to the occupants of a stopped vehicle than
  In Hill, a deputy sheriff pulled over a U-Haul for speeding.      are necessary to issue a traffic citation d oes not turn a reasonable
195 F.3d at 261. While processing the traffic violation, which      detention into an unreasonable one, especially when such “[q]uestions
included running a check on the defendant’s driver’s license,       hold the po tential for dete cting crime, yet create little or no
retrieving and reviewing the U-Haul rental agreement, and           inconvenien ce.” (quoting United States v. Childs, 277 F.3d 947, 954 (7th
                                                                    Cir.) (en banc))
No. 02-6146                      United States v. Richardson           13     14       United States v. Richardson                      No. 02-6146

Since the court immediately considered whether reasonable                     that he is “free to go” before requesting the person’s consent
suspicion was present, it must have considered it obvious that                to search his vehicle. Id. at 35. The Court concluded that it
the defendant was detained, for the court does not tell us                    did not. Although it never specifically addressed whether the
when the traffic stop no longer justified her detention. It is                defendant was seized when the officer asked him both
likely that the court believed that the traffic stop no longer                whether he had any drugs or weapons and for his consent to
justified her detention as soon as she signed the citation and                search his vehicle, I believe, since the Court reversed the
was then not able to exit the police vehicle.2 If the court                   Ohio Supreme Court’s judgment and since there certainly was
believed that she was detained after she signed the citation                  no reasonable suspicion to further detain the defendant if he
merely because she was asked questions that were unrelated                    were seized, that the Court concluded, sub silentio, that the
to the initial traffic stop, or because she was asked questions               defendant was not seized when he was asked those questions.
at all, then Mesa would no longer accurately reflect the state
of the law after Ohio v. Robinette, 519 U.S. 33 (1996).                          It is well settled that an officer may approach a person to
                                                                              ask questions or seek permission to search, provided that the
    In Robinette, a deputy sheriff stopped the defendant for                  officers do not imply that answers or consent are obligatory.
speeding. Id. at 35. The deputy asked for and was handed the                  See e.g., INS v. Delgado, 466 U.S. 210, 212 (finding that
defendant’s driver’s license. Id. After running a computer                    agents’ questioning of factory employees concerning their
check on the license which indicated that he had no previous                  citizenship did not constitute a seizure); Florida v. Royer, 460
violations, the deputy asked the defendant to step out of his                 U.S. 491, 497 (1983) (observing that law enforcement officers
vehicle, issued a verbal warning to him, and returned his                     do not violate the Fourth Amendment by merely approaching
license. Id. The deputy then asked whether the defendant had                  an individual and asking if he is willing to answer some
any drugs or weapons in his car Id. at 35-6. After the                        questions). In Florida v. Bostick, 501 U.S. 429, 434 (1991),
defendant answered no, the deputy asked for, and received,                    the Court made clear that these requests are proper without
the defendant’s consent to search his vehicle. Id. at 36.                     regard to the absence of reasonable suspicion because “mere
Drugs were found in the car during the search. Id. The Ohio                   police questioning does not constitute a seizure.” See e.g.,
Supreme Court held both that the defendant’s consent to                       United States v. Erwin, 155 F.3d 818, 823 (1998) (en banc)
search was the product of an unlawful detention, and that an                  (noting that an “officer does not violate the Fourth
officer must first inform “citizens stopped for traffic offenses              Amendment merely by approaching an individual, even when
... [that] they are free to go after a valid detention, before [the]          there is no reasonable suspicion ..., and asking him whether
officer attempts to engage in a consensual interrogation.” Id.                he is willing to answer some questions. This includes a
The question presented to the Court was whether the Fourth                    request for consent to search [an] individual’s vehicle”).
Amendment demanded the per se rule that an officer, after the
completion of a traffic stop, must inform the person stopped                    It is clear then, after considering the Court’s and this
                                                                              Circuit’s precedents, that Officer Fisher was entitled to ask
                                                                              the owner for her consent to search the vehicle.3 See Bostick,
    2
      Indeed, after the Supreme Court decided Oh io v. Robin ette, 519 U.S.
33, this court in United States v. Guimond, 116 F.3d 16 6 (6th Cir. 1997),         3
read Mesa to ap ply only on its facts – where the driver consented to a             One may attemp t to distinguish Bostick or Royer, where the officers
search only after she had been detained in a locked police cruiser for a      approached the defendants for questioning while the defendants were not
considerable period of time.                                                  in legal custody, from the present case, where the occupants were in legal
No. 02-6146                       United States v. Richardson              15     16   United States v. Richardson                 No. 02-6146

501 U.S. at 434; Royer, 460 U.S. at 497. Officer Fisher’s                           Since I believe that Officer Fisher was entitled to ask the
request to Collier that he remain outside the car after he had                    owner for permission to search her car, and that his request to
handed Collier the citation so that he could ask the owner for                    Collier to remain outside the car did not constitute a seizure
her consent to search the vehicle did not transform the                           where 1) he was not restrained from leaving, and 2) the
encounter into an unlawful detention. Unlike the occupants                        request was reasonable under the circumstances, I would
of the U-Haul in Hill, neither Collier nor the occupants who                      therefore reverse the district court’s conclusion to the
remained in the car were detained so that a drug detection dog                    contrary.
could sniff the vehicle for the presence of narcotics. And,
unlike the defendant in Mesa, neither Collier nor the
occupants who remained in the car were physically locked in
the back seat of a police car after the purposes of the traffic
stop were completed. Moreover, Officer Fisher’s request to
Collier to remain outside the vehicle as he went back to the
car to ask the owner for her consent to search was reasonable
where Officer Fisher knew 1) that the owner was sitting in the
rear passenger seat and that Collier would take the front
passenger seat,4 so that if Collier had re-entered the vehicle,
he would have needed to speak around him in order to talk
with the owner,5 and 2) if the owner had consented to a
search, Collier would have needed to immediately re-exit the
vehicle if he had first re-entered after Officer Fisher handed
him the ticket.



custody until the pu rposes of the traffic stop were comp leted, and then
were posited questions and asked to consent to a search, by arguing that
in the latter case an individual may not feel as if he has a right to refuse
the officer’s request because he was just in legal custody and, in fact, may
believe he still is in legal custody. However, unless the officer’s conduct
and questions intimated that answers were obligatory, then such a concern
would merely go to the voluntariness of the conse nt, not whether the
consent was a fruit of an illegal seizure.

    4
      It is clear that Officer Fisher, while he was talking with Collier at the
rear of the car, noticed Darnell Richardson exit the passenger seat and
take the driver’s seat.

    5
     Officer Fisher would have needed to talk around the front passenger
because he always approached the car on the passenger’s sid e for safety
reasons to avoid exposure to freeway traffic.
