United States of America v. Jason Johnson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 17, 2009
Decided May 11, 2009
Before
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN C. WILLIAMS, Circuit Judge
No. 08‐2310
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JASON JOHNSON,
Defendant‐Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 07 CR 30078
Jeanne E. Scott,
Judge.
ORDER
Jason Johnson contends that police violated his rights under the Fourth Amendment
when they stopped his vehicle, frisked him, and ultimately uncovered evidence of crime.
We disagree.
Illinois Trooper Steven Ent pulled over Johnson at 2:06 p.m., on May 11, 2007, after
noticing illegally tinted windows on his SUV. When Ent asked Johnson and the passenger
for identification, Johnson became nervous. As Johnson passed over his license, his hand
trembled so much that the card “bounce[d] up and down.” There was a pretty good reason
for this‐‐Johnson was on parole for a drug conviction and was, at the moment at least, less
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐2310 Page 2
than faithful to the conditions placed on his release. He had a pistol tucked away in the
vehicle, as well as two bags of what looked like crack cocaine (though later testing proved it
was just “filler,” or a non‐illicit cutting agent).
Back at the scene, Ent advised Johnson of the tinting violation and had Johnson wait
in the SUV while he returned to his patrol car. Running his name through the computer,
Ent discovered Johnson’s parole status and “extensive criminal history involving drugs.”
Combined with Johnson’s extreme nervousness, this prompted Ent to radio a K‐9 officer,
Trooper Anthony Maro, for a possible dog sniff.
Maro showed up quickly, while Ent was still filling out a written warning for the
tinting offense. When he finished, Ent approached Johnson and asked him to come to the
rear of the SUV so he could explain the write‐up. After Johnson signed the warning, Ent
asked him why he was on parole. Johnson candidly admitted that it was for drugs, but he
said his parole officer knew he was traveling, so everything was kosher. Ent then asked
Johnson if he was carry anything illegal; Johnson said he was not. Unsatisfied, Ent asked
Johnson for permission to search his vehicle. The answer from Johnson was ambiguous: he
said he “wouldn’t mind” a search, but that he needed to get on the road because he “was
really on a schedule.” Finding this insufficiently clear, Ent settled for a dog sniff. He told
Johnson that Maro would just walk his canine around the car.
Before that got underway, however, Ent patted Johnson down for officer safety. Ent
said this was the prudent thing to do because he was dealing with someone who had an
extensive criminal history involving drugs. Ent uncovered a wad of money‐‐$700 to be
exact‐‐which Johnson said was for car repairs. Leaving Johnson to the side, Ent ordered the
other passenger out of the vehicle and patted her down as well. Before Maro began the
walk‐around, Johnson told him that the dog would probably alert because a friend had
smoked marijuana in the car earlier that day. Sure enough, the dog did just that. Whether
due to the smell of marijuana or something else, the dog sat down near the driver’s door,
signaling the presence of drugs. In the subsequent search, Ent located a box of .22 caliber
ammunition inside of a purse on the front seat and, inside a gym sock stashed behind the
stereo console, a matching pistol plus two bags of what appeared to be (but was not)
narcotics. Maro placed Johnson in handcuffs, and that was, as they say, a wrap.
The whole sequence‐‐from the time Ent pulled Johnson over to the time he found the
gun‐‐lasted 27 minutes. (We know this with such exactitude because there was a video
camera with a clock in Ent’s patrol car.)

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No. 08‐2310 Page 3
The case reaches us on appeal from the district court’s denial of a motion to
suppress. We review the legal conclusions that went into this ruling de novo and the factual
findings for clear error. United States v. Gibson, 530 F.3d 606, 613 (7th Cir. 2008).
Johnson’s argument is straightforward: he concedes the legitimacy of the initial stop,
but he says the police did not have grounds to detain him after Ent gave him the warning
ticket. He also challenges the frisk. Stated differently, Johnson challenges both the sheer
length of the detention and something that occurred during the detention. We start with the
issue of timing.
The Fourth Amendment prohibits unreasonable searches and seizures. United States
v. Arvizu, 534 U.S. 266, 273 (2002). Although the traffic stop in this case was a lawful seizure
at the outset, the analysis cannot end there, for “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). More to the
point, “[a] seizure that is justified solely by the interest in issuing a warning ticket to the
driver can become unlawful if it is prolonged beyond the time reasonably required to
complete that mission.” Id. But because the touchstone is reasonableness, the Fourth
Amendment does not straightjacket officers who wish to ask questions unrelated to the
initial traffic stop. See United States v. Muriel, 418 F.3d 720, 725 (7th Cir. 2005). Officers need
not even have reasonable suspicion to pursue such questions‐‐as long as, again, the
unrelated questions do not unreasonably (or “measurably”) prolong the stop. Arizona v.
Johnson, 129 S. Ct. 781, 788 (2009). It should not be surprising, then, that we have eschewed
a stopwatch test (where officers can ask unrelated questions for three minutes, for instance,
but no more). See United States v. Childs, 277 F.3d 947, 953‐54 (7th Cir. 2002) (en banc).
Instead, we have employed a common‐sense approach, sustaining “[q]uestions that hold
potential for detecting crime, yet create little or no inconvenience.” Id. at 954.
In light of this standard, Johnson’s argument based on the length of the detention
fails. Although the entire process took 27 minutes, the first 12 minutes or so (through
issuance of the written warning) were comprised of activities that Johnson doesn’t
challenge. By that time, Maro was already on the scene with his dog, and Ent knew that
Johnson was on parole for a drug‐related offense. The issue, then, is whether the officers
unreasonably prolonged the detention by asking Johnson and his compatriot unrelated
questions, seeking consent for a search, patting them down, and ultimately running the dog
around the vehicle. Five minutes passed from the time Johnson signed the written warning
to the time the dog alerted to the presence of drugs (and when that happened, the officers
had probable cause to search and arrest). But even that overstates the relevant time,
because Johnson told Maro just two minutes after he signed the written warning that

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No. 08‐2310 Page 4
someone had smoked marijuana in the car that day. Once Johnson made that admission,
there was additional reason to prolong the stop to allow the dog sniff. See United States v.
Martin, 422 F.3d 597, 602 (7th Cir. 2005) (“[I]nformation lawfully obtained during [a traffic
stop] may provide the officer with reasonable suspicion of criminal conduct that will justify
prolonging the stop to permit a reasonable investigation.”). So when it comes down to it,
what we are talking about here is roughly two minutes of delay that were not justified by
the traffic violation or Johnson’s statements. That is not unreasonable. And any issue
regarding the patdown is academic as the frisk didn’t yield the evidence at issue or
unnecessarily prolong the detention.
The district court’s decision is AFFIRMED.

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