The federal appeals court based in Denver declined to say whether Colorado Springs police acted unconstitutionally by turning their traffic stop of a driver into a firearm arrest for the passenger.

The narrow ruling on Monday from the U.S. Court of Appeals for the 10th Circuit implicated a 2015 U.S. Supreme Court decision, Rodriguez v. United States. A majority of justices in that case found officers, without reasonable suspicion, may not make “detours” from the original mission that prolong the traffic stop.

Colt Francis Malone had asked the 10th Circuit to find that Colorado Springs police committed such a detour when they pulled over the car he was riding in for a minor traffic violation that culminated in his arrest. A three-judge panel upheld a lower court ruling against Malone, even as one appellate judge expressed concern that the case may be an example of police doing “whatever they want … for as long as they want.”

On June 18, 2019, members of a Bureau of Alcohol, Tobacco, Firearms and Explosives task force saw a car pull into the Knights Inn hotel. They watched a person exit the car, go into a first floor room, then return to the car and drive away. They alerted nearby Colorado Springs patrol officers Adam Brewer and Brook Hathaway.

The officers saw the driver make a wide right-hand turn and pulled the car over. The driver, Darlene Tucker, told Brewer she was staying at the hotel and handed over her driver license, while also searching for her registration and insurance information. Malone, her passenger, also provided his identification, informing the officers he was on parole for burglarizing a pawn shop. 

Brewer instructed Tucker to keep looking for her registration and insurance. Although Tucker’s background check reportedly came up clear, the car was not stolen and there were no warrants out for either occupant’s arrest, Brewer learned in the patrol car that Malone was a suspected gang member.

When he returned to the car with Hathaway, the two allegedly began the “detour” from the traffic stop. The officers asked Malone to exit the car for a pat-down. Hathaway noticed a liquor bottle near the passenger seat, but then saw part of a gun when reaching in for the bottle. The officers searched the car, found a pistol and arrested Malone for weapons possession by a felon.

Malone asked a trial court to suppress evidence of the firearm, alleging a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. In particular, the defense cited the Supreme Court’s Rodriguez decision, in which the justices found the use of a K-9 to sniff out drugs after officers completed their traffic stop was unconstitutional.

U.S. District Court Chief Judge Philip A. Brimmer initially agreed with Malone.

“I don’t think that there is any – there wouldn’t be some independent basis to take Mr. Malone out of the car, in other words, some type of reasonable suspicion that would have justified that,” said Brimmer, who found no connection between the traffic stop and the criminal activity officers suspected at the hotel.

But the judge declined to suppress the evidence, determining the Colorado Springs officers had a reasonable interest in removing Malone from the car: thinking he may have stolen a gun from the pawn shop and posed a danger. Because Tucker had not yet produced the documents Brewer asked for, the officers’ handling of Malone did not prolong the traffic stop, as was the case in Rodriguez. The officers acted reasonably, Brimmer concluded. 

During oral argument before the 10th Circuit panel, Judge Gregory A. Phillips grilled the government’s lawyer about whether there was any legal limit to the officers’ interaction with Malone, given that they never returned to Tucker for her paperwork and in effect left the traffic stop open ended.

“My problem with the government’s position in this case is you have known facts, which is the real reason for this stop is the hotel,” he said. “But the officers never go back to [Tucker] and say, ‘Did you find those [documents]?’ Instead, your view, it seems to me, just allows the officers to do whatever they want to for the rest of the stop and investigate the hotel, pull people out of cars – ‘Do I see anything under the seat?’ – for as long as they want.”

Phillips added: “So you have this unlimited stop that never stops until they are satisfied to themselves that they can’t investigate and prove another crime. That can’t be the law that they’re allowed to do that.”

Cyrus Y. Chung with the U.S. Attorney’s Office responded that everything happened relatively quickly in Malone’s case, clarifying that “I’m not contending that the stop can go on forever.”

“We still don’t know if she had proof of insurance and registration to this day,” Phillips emphasized.

But the appellate panel did not tackle that larger question, instead noting Malone had not challenged Brimmer’s finding that the officers had not prolonged the traffic stop in their interaction with Malone. Because the Rodriguez decision only established the officers’ behaved unconstitutionally after they extended the length of the traffic stop, Malone’s case was not identical.

If Tucker “were still looking for the registration and proof of insurance, the officers could have investigated Mr. Malone while they were waiting,” wrote Judge Robert E. Bacharach for the panel.

The case is United States v. Malone.