                                                  129 Nev., Advance Opinion     51
                       IN THE SUPREME COURT OF THE STATE OF NEVADA

                THE STATE OF NEVADA,                                No. 57928
                Appellant,
                vs.
                KENT JOSEPH BECKMAN,
                                                                     FILED
                Respondent.                                           JUL 1 1 2013
                                                                     TRACE K. LINDEMAN
                                                                   CLEFMICaThiCeRT
                                                                  BY   '
                                                                      DEPUTY CLERK
                           Appeal from a district court order granting a motion to
                suppress evidence. Fourth Judicial District Court, Elko County; J.
                Michael Memeo, Judge.
                           Affirmed.


                Catherine Cortez Masto, Attorney General, Carson City; Mark Torvinen,
                District Attorney, and Robert J. Lowe, Deputy District Attorney, Elko
                County,
                for Appellant.

                Frederick B. Lee, Jr., Public Defender, and Alina M. Kilpatrick and
                Andrew M. Mierins, Deputy Public Defenders, Elko County,
                for Respondent.


                BEFORE THE COURT EN BANC. 1

                                                 OPINION

                By the Court, PICKERING, C.J.:
                           Respondent Kent Beckman was stopped for speeding. The
                highway patrol officer verified Beckman's license and registration, told
                him "everything checks good," and issued a warning. As Beckman began

                     'This matter was transferred from panel to en banc following oral
                argument pursuant to TOP Rule 13(b).

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                to leave, the officer ordered him to remain until a drug-sniffing dog and
                handler team could arrive. When the dog arrived, it alerted for the
                presence of drugs, which was confirmed by the warrantless search that
                followed. Beckman was arrested and charged with trafficking, possession
                for sale, and possession of Schedule I and II controlled substances.
                            Beckman moved to suppress the evidence of contraband
                because the highway patrol officer unreasonably prolonged the traffic stop,
                unlawfully "seizing" him, and because exigent circumstances did not
                justify the warrantless search. The district court granted the motion
                based on the warrantless search. Because the seizure presents a
                threshold issue that requires affirmance as a matter of law irrespective of
                the warrantless search analysis, we focus on it.    See Picetti v. State, 124
                Nev. 782, 790, 192 P.3d 704, 709 (2008) (district court decision will be
                affirmed on appeal where court reached correct result).
                            A traffic stop that is legitimate when initiated becomes
                illegitimate when the officer detains the car and driver beyond the time
                required to process the traffic offense, unless the extended detention is
                consensual, de minimis, or justified by a reasonable articulable suspicion
                of criminal activity. The prolonged stop in this case met none of these
                exceptions and violated the United States and Nevada Constitutions. The
                constitutional violation warrants exclusion of the subsequently discovered
                evidence.
                                                      I.
                            The essential facts of this case were recorded by videotape and
                are not disputed. At 7:10 a.m. on a Sunday morning, Trooper Richard
                Pickers of the Nevada Highway Patrol stopped Beckman on Interstate 80



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                  in Elko, Nevada, for speeding. 2 Trooper Pickers asked for Beckman's
                  license and registration, which Beckman produced. Trooper Pickers
                  questioned Beckman about his travels, and Beckman answered that he
                  had been driving since 10 p.m. and was on his way to Omaha, Nebraska,
                  to visit his son. At 7:13 a.m., Trooper Pickers told Beckman that he would
                  verify Beckman's documents and issue a warning.
                              When Trooper Pickers returned to his patrol car, he told his
                  passenger, a new dispatch employee in training, that he suspected
                  criminal activity because of fingerprints on the trunk of Beckman's car.
                  He added that Beckman seemed "overly nervous" and that he, Trooper
                  Pickers, would not drive continuously through the night. When Trooper
                  Pickers radioed dispatch to check Beckman's documents, he asked
                  dispatch to send a drug-sniffing dog/handler team to the scene of the stop.
                              At 7:18 a.m., Beckman asked for permission to get out of his
                  car to stretch. Trooper Pickers assented and in turn asked for permission
                  to pat Beckman down for weapons. Beckman consented. Beckman and
                  Trooper Pickers then engaged in friendly conversation, largely about
                  Beckman's job as a wine salesperson. A minute later, Trooper Pickers
                  returned Beckman's license and registration and told him "everything
                  checks good. . . be careful." Beckman handed Trooper Pickers a business
                  card and walked back toward his vehicle to leave.
                              Pickers then asked if he could ask Beckman "a couple of
                  questions," to which Beckman responded "yes, sir." Trooper Pickers asked
                  if Beckman had anything illegal in his car and if he could perform a


                        2 There are two additional cases before this court that involve similar
                  stops by Trooper Pickers—State v. Lloyd (Docket No. 56706), and Tucker
                  v. State (Docket No. 58690).
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                vehicle search. Beckman denied having anything illegal but refused
                consent to the search. At this point, approximately 7:21 a.m., Trooper
                Pickers told Beckman that he was no longer free to leave and would have
                to wait for the canine unit to arrive and perform a sniff search. A minute
                later, Trooper Pickers gave Beckman a modified version of his Miranda
                rights. 3 While waiting for the canine unit, Trooper Pickers and Beckman
                continued to talk.
                            Officer Lowry and his drug-sniffing dog, Duchess, arrived at
                7:29 a.m. Two minutes later, Duchess signaled the presence of drugs near
                the driver's side door of Beckman's vehicle. Trooper Pickers informed
                dispatch that the dog alerted positively, and he would perform a vehicle
                search. Trooper Pickers then began a search of the vehicle, and found
                what he determined to be cocaine in the center console. Thereafter, at
                7:40 a.m., Trooper Pickers informed Beckman that he was under arrest,
                placed him in handcuffs, and secured him in the back of the patrol vehicle.
                            An additional officer arrived as backup, followed by a tow
                truck at 8:02 a.m. The three officers, with the tow truck driver's
                assistance, continued the search until 8:58 a.m. and found additional
                quantities of cocaine, as well as methamphetamine. During the search,
                Trooper Pickers was asked about a cut on his hand, and he responded,
                "That's me getting jazzed up. I don't even feel it. I'm on the search. I'm
                feeling like there's going to be more." After the search ended, Trooper
                Pickers drove Beckman to the sheriffs station.
                            The State charged Beckman with several drug-related
                offenses. Beckman filed a motion to suppress in which he argued that

                      3 Trooper Pickers did not read the warning from a card. Instead, he
                explained the rights in approximate terms.
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                                                                                              -'901
Trooper Pickers unlawfully seized him by unnecessarily extending the
stop and that the officers further violated his rights by performing a
warrantless search. In opposition to the motion, the State argued that
Trooper Pickers had reasonable suspicion for the de minimus continued
detention and that extenuating circumstances justified the warrantless
search. After an evidentiary hearing, the district court granted the motion
in a detailed order focusing on the legality of the warrantless search. The
State appeals.


            "Suppression issues present mixed questions of law and fact."
Johnson v. State, 118 Nev. 787, 794, 59 P.3d 450, 455 (2002), overruled on
other grounds by Nunnery v. State, 127 Nev. , , 263 P.3d 235, 250-51
(2011). This court reviews findings of fact for clear error, but the legal
consequences of those facts involve questions of law that we review de
novo. Cortes v. State, 127 Nev. , , 260 P.3d 184, 187 (2011); State v.
Lisenbee,   116 Nev. 1124, 1127, 13 P.3d 947, 949 (2000). The
reasonableness of a seizure is a matter of law reviewed de novo.         Id.;
United States v. Campbell, 549 F.3d 364, 370 (6th Cir. 2008).
                                     A.
                                     1.
            Using virtually identical words, the United States and Nevada
Constitutions both guarantee "Mlle right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures." U.S. Const. amend. IV; see Nev. Const. art. 1, § 18; Cortes, 127
Nev. at , 260 P.3d at 190-91. Temporary detention of individuals
during a traffic stop constitutes a "seizure" of "persons" within the
meaning of these constitutional provisions.   Whren v. United States, 517
U.S. 806, 809-10 (1996); see Cortes, 127 Nev. at ,      n.7, 260 P.3d at


                                     5
188-89, 191 n.7. "An automobile stop is thus subject to the constitutional
imperative that it not be 'unreasonable' under the circumstances."   Whren,
517 U.S. at 810. Trooper Pickers had probable cause to believe that
Beckman had violated a traffic law by driving 72 miles per hour in a 65-
mile-per-hour zone. Thus, the initial stop was reasonable.        Id. ("As a
general matter, the decision to stop an automobile is reasonable where the
police have probable cause to believe that a traffic violation has
occurred.").
               During the course of a lawful traffic stop, officers may
complete a number of routine tasks. For example, they may ask for a
driver's license and vehicle registration, run a computer check, and issue a
ticket. See United States v. Vaughan, 700 F.3d 705, 710 (4th Cir. 2012).
Officers may also inquire about the occupants' destination, route, and
purpose. United States v. Sanchez, 417 F.3d 971, 975 (8th Cir. 2005). And
if necessary, law enforcement may conduct a brief, limited investigation
for safety purposes. Terry v. Ohio, 392 U.S. 1, 27 (1968); Dixon v. State,
103 Nev. 272, 273, 737 P.2d 1162, 1163-64 (1987).
               Here, Trooper Pickers correctly tailored the initial
investigation to the circumstances justifying the stop. See 68 Am. Jur. 2d
Searches and Seizures § 90 (2010) ("[T]he scope of the detention must be
carefully tailored to its underlying justification."). As with most traffic
stops, Trooper Pickers asked for Beckman's driver's license and vehicle
registration, which he had dispatch check by computer search. Although
Trooper Pickers asked Beckman questions about his travels, this inquiry
was within the scope of the lawful traffic stop and did not improperly
extend the duration of that stop. Thus, the first phase of Trooper Pickers'




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                investigation, which lasted from approximately 7:10 to 7:19, satisfied the
                Fourth Amendment's requirement of reasonableness.
                                                      2.
                            But a "seizure that is lawful at its inception can violate the
                Fourth Amendment if its manner of execution unreasonably infringes
                interests protected by the Constitution." Illinois v. Caballes, 543 U.S. 405,
                407 (2005); see also Florida v. Jardines, 569 U.S. „ 133 S. Ct. 1409,
                1416 (2013) (explaining that the scope of an officer's investigation is
                limited by the purpose of the investigation). In Caballes, a police officer
                stopped Caballes for speeding, and one of the officer's colleagues on the
                canine unit immediately headed for the scene. Id. at 406. A few minutes
                later, while the officer was still writing out a warning ticket, the dog and
                handler walked around Caballes's car, where the dog alerted to the
                presence of drugs. After Caballes challenged the constitutionality of the
                sniff, the Court explained that a dog sniff during a lawful traffic stop does
                not violate the Constitution so long as the sniff does not prolong the length
                of the stop. Id. at 408-09 (emphasis added). The Court continued that the
                inverse is also true—if a traffic stop is unreasonably prolonged before a
                canine is employed, the use of the canine and subsequently discovered
                evidence are products of an unconstitutional seizure.         Id. at 407-08.
                Because the canine unit in Caballes arrived while the initial officer was
                still processing the initial reason for the stop, the canine sniff did not run
                afoul of the Constitution.
                            Similarly, in Gama v. State, 112 Nev. 833, 837-38, 920 P.2d
                1010, 1013 (1996), this court upheld a dog sniff that occurred during a
                traffic stop. There, police initiated the stop because Gama was speeding
                and nearly rear-ended another vehicle.     Id. at 835, 920 P.2d at 1012. A
                narcotics unit arrived with a drug-sniffing dog before the officer completed
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                a written citation. Id. at 837-38, 920 P.2d at 1013. Since the sniff did not
                extend the length of the traffic stop, we held that Gama had not been
                unlawfully seized. Id. at 838, 920 P.2d at 1013-14.
                              Here, unlike the officers in Caballes and Gama, Trooper
                Pickers extended the length of the traffic stop to await a canine unit. 4 The
                initial stop for the speeding violation ended around 7:19 a.m. when
                Trooper Pickers informed Beckman "everything checks [out]" and both
                parties started walking toward their cars. After Beckman consensually
                answered a few questions regarding controlled substances, Trooper
                Pickers seized Beckman again by informing Beckman that he was no
                longer free to leave and would need to wait for the canine unit to arrive
                and perform a sniff search. Trooper Pickers also read Beckman his
                Miranda rights. This show of authority restrained Beckman's liberty,
                Terry, 392 U.S. at 19 n.16 (explaining that when an officer uses his
                authority to detain a citizen, a seizure has occurred), and in view of these
                circumstances, a reasonable person in Beckman's position would believe
                that he was not free to leave. See State v. Stinnett, 104 Nev. 398, 401, 760
                P.2d 124, 127 (1988) (citing Michigan v. Chesternut, 486 U.S. 567, 573
                (1988)) (explaining that a person is seized if he does not believe he is free
                to leave). The question then becomes whether the prolonged traffic stop
                was reasonable under the Fourth Amendment.
                                                      B.

                              "[A] traffic stop [that] extends beyond the time necessary to
                effectuate its purpose does not necessarily render it unreasonable."


                      4 Per
                          the State, "There is going to be a little bit of time when you're
                going to have to get the dog out there, especially in a large county like
                Elko."
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                United States v. Bueno, 703 F.3d 1053, 1060 (7th Cir.), vacated as to
                codefendant's sentencing determination sub nom. Gonzalez-Zavala v.
                United States, 569 U.S. , S. Ct. , 81 U.S.L.W. 3689 (2013). A
                prolonged stop may be reasonable in three limited circumstances: when
                the extension of the stop was consensual, the delay was de minimis, or the
                officer lawfully receives information during the traffic stop that creates a
                reasonable suspicion of criminal conduct. Id. at 1060-62. "The ultimate
                determination of reasonableness . . . is a question of law reviewable de
                novo." United States v. Alcaraz-Arellano, 441 F.3d 1252, 1258 (10th Cir.
                2006); United States v. Everett,     601 F.3d 484, 488 (6th Cir. 2010)
                ("[w]hether a seizure is reasonable under the Fourth Amendment is a
                question of law that we review de novo.").
                            First, a prolonged traffic stop is not unreasonable if the
                encounter becomes consensual. After all, a consensual encounter is not a
                seizure, and thus, the Fourth Amendment is not implicated. United States
                v. Munoz, 590 F.3d 916, 921 (8th Cir. 2010); see also United States v.
                Figueroa-Espana, 511 F.3d 696, 702 (7th Cir. 2007). Here, Beckman
                consensually responded to Trooper Pickers' initial questions about
                contraband from 7:20 until 7:21, but if consent existed, it vanished around
                7:21 when Beckman asked, "can I please go," and Trooper Pickers
                responded, "absolutely not." The continued detention therefore cannot be
                justified based on consent.
                            Second, a modest delay may be reasonable, depending on the
                circumstances surrounding the stop. For example, other jurisdictions
                have permitted a two-minute delay, United States v. McBride, 635 F.3d
                879, 883 (7th Cir. 2011); United States v. Chaney, 584 F.3d 20, 26 (1st Cir.
                2009), and a four-minute delay, United States v. Alexander, 448 F.3d 1014,

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1017 (8th Cir. 2006), as de minimis intrusions on a driver's liberty. Here,
the State argued during oral argument that the continued detention was
de minimus and "not a very long period out of Mr. Beckman's life." It
further stated that the "obvious seizure" did not unreasonably extend the
stop because Trooper Pickers "throughout the whole period act[ed]
expeditiously to get the dog there." We disagree. The delay was not de
minimis because Trooper Pickers detained Beckman for an additional nine
minutes, doubling the length of the stop. Accordingly, the additional delay
was not permissible as de minimus.
            Third, a prolonged stop is permissible if the results of the
initial stop provide an officer with reasonable suspicion of criminal
conduct, thereby creating a new Fourth Amendment event. See, e.g., State
v. Perez, 435 A.2d 334, 338 (Conn. 1980) (when "a police officer's
suspicions upon a lawful stop are further aroused, the stop may be
prolonged and the scope enlarged as required by the circumstances"),
overruled on other grounds by State v. Altrui, 448 A.2d 837, 846 n.6 (1982);
Estrada v. Rhode Island, 594 F.3d 56, 64 (1st Cir. 2010) (recognizing that
information gathered during a traffic stop may provide reasonable
suspicion of criminal conduct that will justify extending the stop).
Whether the officer's articulated reasons for extending the seizure were
reasonable "must be determined with an objective eye in light of the
totality of the circumstances." Lisenbee, 116 Nev. at 1128, 13 P.3d at 950.
            Here, the State contended that the continued detention was
justified by the suspicions that Trooper Pickers related, to wit: Beckman's
nervousness, the handprints on the car's trunk lid, and Beckman's request
to get out of his vehicle and stretch. But these are all occurrences Trooper
Pickers observed before he decided to issue a warning and send Beckman



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                on his way. The only noteworthy event that occurred after Trooper
                Pickers released Beckman was Beckman's offer of a business card.
                            Although an officer's training and experiences enable him to
                draw inferences that "might well elude an untrained person," United
                States v. Cortez, 449 U.S. 411, 418 (1981), the totality of the circumstances
                here would not cause a prudent person to have an honest or strong
                suspicion that Beckman had committed a crime.         Deutscher v. State, 95
                Nev. 669, 681, 601 P.2d 407, 415 (1979). Factors such as nervousness are
                part of a reasonable suspicion analysis but, standing alone, carry little
                weight because many citizens become nervous during a traffic stop, even
                when they have nothing to hide.     United States v. Arvizu, 534 U.S. 266,
                275 (2002); United States v. Richardson, 385 F.3d 625, 630-31 (6th Cir.
                2004). Jurisdictions are divided on the value of handprints on a vehicle.
                Some have recognized reasonable suspicion where handprints were one of
                many factors, e.g., United States v. Thompson, 408 F.3d 994, 995-96 (8th
                Cir. 2005), but others have not.   United States v. Salinas, 940 F.2d 392,
                394-95 (9th Cir. 1991) (finding no reasonable suspicion where officers
                observed handprints on the trunk of an automobile). Although criminals
                may frequently check contraband in their trunks, many law-abiding
                citizens also routinely utilize their trunks for non-suspect reasons, such as
                hauling groceries (or in Beckman's case, wine). Next, even if Beckman's
                request to stand and stretch was unusual compared to other citizens, it
                made sense given the fact that Beckman had been driving for hours. And
                when Beckman sought to exit his vehicle, he requested permission from,
                and fully cooperated with, Trooper Pickers. Lastly, the business card
                made sense given that Beckman is a salesperson, and if anything, would
                likely have tended to make a reasonable person think that Beckman had

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                                                                                   1-1"7.(149,4<941.4412Z7'.<;1:,111f-.1,114' 9:14
                  nothing to hide. Thus, the events that occurred during the traffic stop did
                  not provide reasonable suspicion of criminal activity that made the
                  continued detention reasonable.
                              For these reasons we conclude as a matter of law that Trooper
                  Pickers unreasonably seized Beckman's person in violation of the United
                  States and Nevada Constitutions before the canine sniff and warrantless
                  search ever occurred. Although law enforcement does not need reasonable
                  suspicion before conducting a dog sniff, United States v. Place, 462 U.S.
                  696, 707 (1983) (concluding that a dog sniff is not a "search" for purposes
                  of the Fourth Amendment), the sniff was the "product of an
                  unconstitutional seizure" during a "traffic stop [that was] unreasonably
                  prolonged before the dog [wa]s deployed."     Alexander, 448 F.3d at 1016
                  (8th Cir. 2006); see also 4 Wayne R. LaFaye, Treatise on Search and
                  Seizure § 9.3(b) (5th ed. 2012) ("A traffic stop that has been turned into a
                  drug investigation via. . . questioning about drugs, grilling about the
                  minute details of travel plans, seeking consent for a full roadside
                  exploration of the motorist's car, or parading a drug dog around the
                  vehicle [] is a far cry from a straightforward and unadorned traffic
                  stop. ."). And when the extended seizure "enable[s] the dog sniff to
                  occur,' suppression may properly follow.     United States v. Peralez, 526
                  F.3d 1115, 1121 (8th Cir. 2008) (quoting Caballes, 543 U.S. at 408).


                              In these circumstances suppression is appropriate because
                  Trooper Pickers' conduct raises "concern [s] about the inclination of the
                  Government toward using whatever facts are present, no matter how
                  innocent, as indicia of suspicious activity." United States v. Digiovanni,
                  650 F.3d 498, 512 (4th Cir. 2011) (quoting United States v. Foster, 634

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F.3d 243, 248 (4th Cir. 2011)). 5 Suppression is not only appropriate
because the extended seizure enabled the dog sniff, but also because of the
continued seizure and intrusive search that Beckman endured. Even
though the subsequent search revealed contraband in Beckman's vehicle,
"no subsequent events or circumstances can retroactively justify the
seizure." Lisenbee, 116 Nev. at 1129, 13 P.3d at 951 (quoting State v.
Stinnett,   104 Nev. 398, 401, 760 P.2d 124, 126 (1988)). And the
government cannot benefit from evidence that officers obtained through a
clear violation of an individual's Fourth Amendment rights. See Jardines,
569 U.S. , 133 S. Ct. 1409, 1417-18 (affirming suppression of
evidence where officers gathered the evidence by intruding on an
individual's Fourth Amendment rights); Segura v. United States, 468 U.S.
796, 815 (1984) (Suppression is justified when the challenged evidence is
"the product of illegal governmental activity." (quoting United States v.
Crews, 445 U.S. 463, 471 (1980))).
              Accordingly, the district court appropriately suppressed the
evidence. Although the court based its decision on the warrantless search,
its conclusion is far more compelling based on the illegal seizure. Unlike
the warrantless search that the district court addressed, which involves
complex areas of law, the law prohibiting illegal seizures is plain and
easily understood. There is no justification for the unconstitutional




      5 Our concerns are further heightened by the State's candid
disclosure that "Trooper Pickers made statements that were misleading
and or dishonest in his application" to an agency in Idaho. The dishonesty
was severe enough "that [it] would have been enough to result in his
termination" had he not left the police force on his own accord.


                                     13
                seizure and its aftermath, including the search that ultimately yielded
                contraband.
                               We therefore affirm.


                                                                            , C.J.




                          CU




                Gibbons


                                                   J.




                Parraguirre


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                Douglas


                                                   J.
                Cherry




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