                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                   No. 08-2688
                                   __________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Southern District of Iowa.
                                       *
Michael Suitt,                         *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: January 13, 2009
                                Filed: June 25, 2009
                                 ___________

Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
                             ___________

SHEPHERD, Circuit Judge.

      Michael Suitt appeals the district court’s1 denial of his motion to suppress
evidence that he possessed with intent to distribute 100 kilograms or more of
marijuana in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). We affirm.




      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

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                                          I.

       Dallas County, Iowa, Deputy Sheriff Scott Faiferlick (“Deputy Faiferlick”) was
driving to work with his canine when he observed the appellant, Michael Suitt, driving
over the speed limit in a white Ford pickup truck. Observing that Suitt’s truck
appeared to have an expired registration, Deputy Faiferlick used a computer in his car
to run a check on Suitt’s license plate. The check confirmed that Suitt’s registration
had expired.

       At 11:31 a.m., Deputy Faiferlick stopped Suitt’s vehicle. After checking Suitt’s
driver’s license, proof of insurance, and vehicle registration, Deputy Faiferlick asked
Suitt to exit his vehicle and accompany him to the patrol car while Deputy Faiferlick
ran additional checks on Suitt’s license and registration. At the suppression hearing,
Deputy Faiferlick explained that he wanted to run additional checks because the
database used by dispatch is more complete than the database accessed via his car
computer. At 11:34 a.m., Deputy Faiferlick told Suitt that he was going to issue a
warning ticket.

       While writing the warning ticket, Deputy Faiferlick began asking Suitt routine
questions about his trip. When asked where he was going, Suitt hesitated and
answered that he was heading to Ohio, but could not name the city. When asked
whom he was going to see, Suitt said that he was going to see family. When asked for
specifics, he replied, “I have some family and friends out there.” When asked how
long he would be in Ohio, Suitt said “as much time as I like.” Throughout this
questioning, Deputy Faiferlick observed that Suitt appeared nervous and fidgety.




      At 11:39 a.m., Deputy Faiferlick ran the second registration check, this time

                                         -2-
having dispatch use its database.2 At 11:44 a.m., Deputy Faiferlick gave Suitt a
warning ticket and returned his driver’s license. As Suitt was walking away, Deputy
Faiferlick asked Suitt whether he had “half a minute” to answer a few final questions.
Suitt said that he did, and Deputy Faiferlick then asked him whether he had any
contraband in the car. Suitt denied that he had anything illegal. Deputy Faiferlick
then asked for permission to search the vehicle. Suitt refused to consent, saying that
“I mean I’m kind of in a hurry right now,” and “I’m on a tight schedule.” At this point
Deputy Faiferlick decided to walk his drug dog around Suitt’s vehicle. At the
suppression hearing, Deputy Faiferlick testified that Suitt’s claim to be on a tight
schedule triggered his decision to conduct a dog sniff because it seemed suspicious
in light of Suitt’s earlier statements implying that he was not in a hurry. At 11:47
a.m., Deputy Faiferlick’s canine, Hank, alerted to the bed of Suitt’s truck. Deputy
Faiferlick then opened the bed of the pickup and discovered 32 bales of marijuana.

       After being indicted on one count of possession with intent to distribute 100
kilograms or more of marijuana in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)
and one count of forfeiture under 21 U.S.C. § 853, Suitt filed a motion to suppress
evidence, which the district court denied. Subsequently, this Court decided United
States v. Peralez, 526 F.3d 1115 (8th Cir. 2008), in which we held that drug
interdiction questions that prolonged a traffic stop for 10 minutes beyond the point at
which the officer decided to issue a traffic citation unreasonably prolonged the
detention under the Fourth Amendment. Id. at 118. Suitt then filed a supplemental
motion for reconsideration of the denial of his motion to suppress citing our decision
in Peralez. The district court denied this motion for reconsideration finding that
Peralez did not apply because Deputy Faiferlick did not ask drug interdiction
questions, but only routine traffic questions, and therefore he did not unreasonably
prolong the stop. Suitt subsequently pled guilty to the possession with intent to


      2
     Apparently, at 11:41 a.m., Faiferlick also conducted a third check on his car
computer, just as he had done prior to the stop.

                                         -3-
distribute charge and was sentenced to 60 months imprisonment, but conditioned his
plea on the appeal of the denial of his motion to suppress.

                                         II.

        “We review a district court’s factual findings for clear error and legal
conclusions de novo when reviewing the denial of a motion to suppress.” United
States v. McGlothen, 556 F.3d 698, 701 (8th Cir. 2009). Stated succinctly, the
primary issue in this case is whether the dog sniff that led to the discovery of the
marijuana stored in Suitt’s automobile was the result of an unconstitutionally
prolonged traffic stop. Suitt’s basic contention is that Deputy Faiferlick used routine
traffic questioning as a pretext to prolong the stop and manufacture a basis on which
he could search Suitt’s vehicle. Suitt also argues that the marijuana should be
suppressed because the dog sniff was conducted in response to the exercise of his
constitutional right to refuse consent to a search.

       Dog sniffs of the exterior of a vehicle are not searches under the Fourth
Amendment. See United States v. Olivera-Mendez, 484 F.3d 505, 511 (8th Cir.
2007). “Such a dog sniff may be the product of an unconstitutional seizure, however,
if the traffic stop is unreasonably prolonged before the dog is employed.” United
States v. Alexander, 448 F.3d 1014, 1016 (8th Cir. 2006), cert. denied, 549 U.S. 1118
(2007) (citing Illinois v. Caballes, 543 U.S. 405, 407 (2005)). Such a situation might
typically occur when an officer unreasonably lengthens a roadside detention until
another officer can bring a drug dog to the scene. However, Deputy Faiferlick had his
drug dog with him when he stopped Suitt. Thus, we note as an initial flaw in Suitt’s
argument the fact that Deputy Faiferlick did not need any justifiable suspicion under
the Fourth Amendment to legally conduct the dog sniff. Having said that, the dog
sniff was nonetheless impermissible if it was the result of an unconstitutionally
prolonged traffic stop. See Peralez, 526 F.3d at 1119; Alexander, 448 F.3d at 1016.



                                         -4-
       “The Supreme Court has analogized roadside questioning during a traffic stop
to a Terry stop, which allows an officer with reasonable suspicion to detain an
individual in order to ask ‘a moderate number of questions to determine his identity
and to try to obtain information confirming or dispelling the officer’s suspicions.’”
United States v. Rodriguez-Arreola, 270 F.3d 611, 617 (8th Cir. 2001) (quoting
Berkemer v. McCarty, 468 U.S. 420, 439 (1984)). “A constitutionally permissible
traffic stop can become unlawful, however, ‘if it is prolonged beyond the time
reasonably required to complete’ its purpose.” Peralez, 526 F.3d at 1119 (quoting
Caballes, 543 U.S. at 407). “During a traffic stop, an officer may detain the occupants
of the vehicle while the officer completes a number of routine but somewhat time-
consuming tasks related to the traffic violation.” Id. (quotation omitted). “A
reasonable investigation includes asking for the driver’s license, the vehicle’s
registration, as well as inquiring about the occupants’ destination, route, and purpose.”
United States v. Sanchez, 417 F.3d 971, 975 (8th Cir. 2005) (quotation omitted).
“Whether a particular detention is reasonable in length is a fact-intensive question, and
there is no per se time limit on all traffic stops.” Olivera-Mendez, 484 F.3d at 510.
“When there are complications in carrying out the traffic-related purposes of the stop,
for example, police may reasonably detain a driver for a longer duration than when
a stop is strictly routine.” Id. “‘Reasonableness . . . is measured in objective terms by
examining the totality of the circumstances.’” United States v. $404,905.00 in U.S.
Currency, 182 F.3d 643, 646 (8th Cir. 1999) (quoting Ohio v. Robinette, 519 U.S. 33,
39 (1996)).

       A number of our cases have held that “[o]nce an officer has decided to permit
a routine traffic offender to depart with a ticket, a warning, or an all clear, the Fourth
Amendment applies to limit any subsequent detention or search.” Peralez, 526 F.3d
at 1120 (quoting Alexander, 448 F.3d at 1016); see also $404,905.00 in U.S.
Currency, 182 F.3d at 649 (traffic stop ends when officer tells suspect that he intends
to return the suspect’s documents). In Peralez, an officer prolonged a traffic stop,
without reasonable suspicion, for 10 minutes after he told the suspects that they would

                                           -5-
only receive a warning ticket for a traffic violation. 526 F.3d at 1118. Because the
officer in Peralez used the 10-minute extension to engage the suspects in a series of
drug interdiction questions unrelated to the basis of the stop, we held that “the
trooper’s focus on non-routine questions prolonged the stop ‘beyond the time
reasonably required’ to complete its purpose.” Id. at 1121 (quoting Caballes, 543 U.S.
at 407). We did not require suppression of the evidence in Peralez, however, because
the officer had announced his intention to search the vehicle before questioning the
suspects, and he had the canine with him at the scene. Id. at 1121-22. Thus, the
unconstitutionally prolonged detention was not “‘a but-for cause of obtaining the
evidence’ . . .” Id. at 1121 (quoting Olivera-Mendez, 484 F.3d at 551).

       Peralez does not control this case. First of all, its conclusion that the officer
unreasonably prolonged the traffic stop was not necessary to its ultimate ruling, i.e.
that the evidence need not be suppressed. Because the officer’s decision to conduct
a “dog sniff was not the consequence of a constitutional violation,” id. (quoting
Caballes, 543 U.S. at 408), the court’s statements concerning the unlawfully extended
stop are non-binding dicta, see John Morrell & Co. v. Local Union 304A of United
Food & Commercial Workers, 913 F.2d 544, 550 (8th Cir. 1990).

       Second, there are important factual distinctions between this case and Peralez
that dissuade us from applying its reasoning here. Until the end of the encounter,
Deputy Faiferlick did not ask drug interdiction questions like the officer in Peralez,
but routine questions about Suitt’s travel plans. The Supreme Court has rejected the
notion that the Fourth Amendment prohibits questioning unrelated to the purpose of
the original detention, provided that such questioning does not prolong the stop.
Muehler v. Mena, 544 U.S. 93, 100-01 (2005); see also Olivera-Mendez, 484 F.3d at
510 (“Where the initial detention was not prolonged by questioning on unrelated
matters, there was no additional seizure within the meaning of the Fourth
Amendment.” (quotation omitted)). Nonetheless, whether questioning is related or
unrelated to the purpose of a detention is relevant to deciding whether the detention

                                          -6-
was unnecessarily prolonged. After deciding to issue a warning and without any basis
for suspecting that criminal activity was afoot, the officer in Peralez proceeded to
question the suspects about the presence of guns, drugs, and other illegal activity. 526
F.3d at 1120. Such questioning could not plausibly be related to the purpose of the
detention, and therefore it was an impermissible basis on which to “more than
double[] the time Peralez was detained.” Id. at 1121. Here, seconds after announcing
his intention to let Suitt go with a warning, Deputy Faiferlick asked Suitt about his
travel plans as he was writing the warning ticket. It would be arbitrary to the point of
pure caprice if routine questions that would have been plainly related to the stop if
asked a few seconds before this announcement lost their nexus to, and became an
illegitimate basis for continuing, the detention when asked a few seconds later while
Deputy Faiferlick engaged in the necessary process of completing the warning ticket.

       Finally, there is no indication that the suspects in Peralez did or said anything
suspicious during the officer’s questioning that justified further interrogation. See id.
However, Suitt repeatedly gave hesitant, evasive, and incomplete answers to Deputy
Faiferlick’s questions. Suitt would have us analyze this situation by focusing on each
of his answers to Deputy Faiferlick’s questions and asking whether and at what point
Deputy Faiferlick obtained the suspicion necessary to delay the detention for 10
minutes beyond the conclusion of the basis for the initial stop. However, this
approach would transform the common sense nature of the reasonable-suspicion
standard into a highly artificial and technical inquiry. See $404,905.00 in U.S.
Currency, 182 F.3d at 649 (“When the constitutional standard is reasonableness
measured by the totality of the circumstances, we should not be governed by artificial
distinctions.”). Deputy Faiferlick’s initial question about Suitt’s destination was
perfectly legitimate and did not prolong Suitt’s detention. Suitt gave a vague, evasive
answer. Deputy Faiferlick then asked another question about whom Suitt was visiting
in Ohio, and Suitt again responded in an unconvincing manner. Although each answer
could be innocent when viewed in isolation, the suspicious character of each response
was magnified by the evasions that preceded it.

                                          -7-
       “An officer’s suspicion of criminal activity may reasonably grow over the
course of a traffic stop as the circumstances unfold and more suspicious facts are
uncovered.” United States v. Linkous, 285 F.3d 716, 720 (8th Cir. 2002); see also
United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993) (“[I]f the responses of
the detainee and the circumstances give rise to suspicions unrelated to the traffic
offense, an officer may broaden his inquiry and satisfy those suspicions.”). Deputy
Faiferlick initiated the questioning while performing the routine task of writing a
warning ticket. Each of Suitt’s hesitant responses added piece by piece to Deputy
Faiferlick’s growing doubts. Thus, this case is unlike Peralez, where the officer could
not point to any grounds for suspicion that developed in the course of his drug
interdiction questioning. See 526 F.3d at 1120. Accordingly, we hold that there was
reasonable suspicion to prolong the stop for additional questioning after the basis for
the initial stop had been resolved.

       Having concluded that Deputy Faiferlick’s questioning did not unreasonably
prolong the stop, we must now consider whether the dog sniff constituted a discrete
constitutional violation. Suitt argues that the dog sniff constituted such a violation
because Deputy Faiferlick refused to let him leave after he declined consent to search
his car, and that the exercise of his right not to consent to the search was an improper
basis on which to continue the stop. While we agree with Suitt that exercising one’s
right not to consent to a search is not a suspicious action that would justify an
otherwise unconstitutional seizure, Suitt’s argument fails because the dog sniff was
neither a search nor a seizure requiring any Fourth Amendment justification. We have
repeatedly upheld dog sniffs that were conducted within a few minutes after a traffic
stop ended. See Alexander, 448 F.3d at 1017 (holding that a dog sniff four minutes
after the conclusion of a traffic stop was a de minimis extension of the stop and not
unreasonable); United States v. Martin, 411 F.3d 998, 1002 (8th Cir. 2005) (holding
that a dog sniff conducted two minutes after the conclusion of a traffic stop was not
unreasonable); $404,905.00 in U.S. Currency, 182 F.3d at 649 (holding that a canine
sniff thirty seconds to two minutes after conclusion of a stop was not an

                                          -8-
unconstitutional detention). Deputy Faiferlick walked his canine around Suitt’s
vehicle at approximately 11:47 a.m., three minutes after he ended the stop at 11:44
a.m when he returned Suitt’s license and issued the warning ticket. This constituted
no more than a de minimis extension of the stop. Thus, no discrete Fourth
Amendment event occurred as a result of Suitt’s denial of permission to search his
vehicle that would need to be predicated upon reasonable suspicion. Consequently,
the search of Suitt’s vehicle and seizure of 32 bales of marijuana did not violate the
Fourth Amendment.

                                         III.

      Accordingly, the judgment below is affirmed.




                                         -9-
