State v. Morlock (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 97,447

STATE OF KANSAS,
Appellee,

v.

RONNIE MORLOCK,
Appellant.


SYLLABUS BY THE COURT

1. When reviewing a motion to suppress evidence, an appellate court reviews the factual
underpinnings of a district court's decision for substantial competent evidence and the
ultimate legal conclusion drawn from those facts de novo. The ultimate determination of
the suppression of evidence is a legal question requiring independent appellate review.
The State bears the burden to demonstrate that a challenged search or seizure is lawful.

2. A traffic violation provides an objectively valid reason to effectuate a traffic stop, i.e.,
articulable facts sufficient to constitute reasonable suspicion.

3. A passenger is seized, just as the driver is, from the moment a vehicle stopped by the
police comes to a halt on the side of the road and the temporary seizure of driver and
passengers ordinarily continues, and remains reasonable, for the duration of the stop.

4. An officer's inquiries into matters unrelated to the justification for the stop do not convert
the encounter into something other than a lawful seizure, so long as those inquiries do not
measurably extend the duration of the stop.

5. An officer is not required to disregard information which may lead him or her to suspect
independent criminal activity during a traffic stop. When the responses of the detainee
and the circumstances give rise to suspicions unrelated to the traffic offense, an officer
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may broaden the inquiry and satisfy those suspicions, graduating his or her responses to
the demands of the situation.

6. Whether reasonable suspicion exists is a question of law, which an appellate court
reviews de novo.

Review of the judgment of the Court of Appeals in 40 Kan. App. 2d 216, 190 P.3d 1002 (2008). Appeal
from Sedgwick district court; BENJAMIN L. BURGESS, judge. Judgment of the Court of Appeals reversing the district
court is reversed. Opinion filed November 6, 2009.

Mark T. Schoenhofer, of Law Office of Mark T. Schoenhofer, of Wichita, argued the cause and was on the
briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney,
Steve Six, attorney general, and Paul J. Morrison, former attorney general, were with him on the briefs for appellee

Kyle G. Smith, assistant city attorney, was on the brief for amicus curiae City of Topeka Police
Department.

The opinion of the court was delivered by

NUSS, J.: This case concerns the suppression of drugs discovered during a properly
commenced traffic stop of a rented van by Deputy Henry Cocking. The van was being driven by
Ronald O'Kelly, the 16-year-old son of defendant Ronnie Morlock, the van's lessee and sole
passenger. The district court denied Morlock's motion to suppress. A majority panel of the
Court of Appeals reversed, and Judge Leben dissented.

This court granted the State's request for review under K.S.A. 22-3602(e) on the
following question:

"Did the Court of Appeals err by reversing the district court's denial of defendant's suppression motion
when:
(1) United States Supreme Court precedent indicates Deputy Cocking did not violate defendant's rights
during a lawful stop.
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(2) Cocking had reasonable suspicion to justify an investigatory detention; and
(3) any taint was attenuated by [Morlock's] consent after the stop ended and the encounter became
voluntary?"

We hold that Deputy Cocking's questions about the van occupants' travel plans did not
exceed the acceptable boundaries of the traffic stop. We further hold that Cocking's taking of
Morlock's driver's license to his patrol vehicle and using it to run a warrants check on the vehicle
computer was justified by his reasonable suspicion, allowing an extension of the traffic stop.
Accordingly, we do not address whether any taint was attenuated by Morlock's later consent to
search.

We reverse the Court of Appeals and affirm the district court.

FACTS

The essential facts are not in dispute and are primarily taken from the Court of Appeals'
majority opinion.

In the early evening of February 3, 2006, Deputy Henry Cocking of the Sedgwick County
Sheriff's department was driving eastbound on Highway 54 when he observed a van with
Arizona tags moving out in front of him. Cocking noticed the driver twice failed to signal when
changing lanes. Cocking activated his emergency lights and stopped the van.

Cocking approached the driver of the van, 16-year-old Ronald O'Kelly, and told him the
reason for the stop. Cocking asked O'Kelly to produce his driver's license. Cocking noticed that
O'Kelly was very nervous: he was shaking and trembling and he dropped the license into his lap
and then almost dropped it on the ground when he handed it over. Cocking also noticed that the
passenger, Ronnie Morlock, was staring straight ahead at the dash and never looking at Cocking.
This behavior struck Cocking as odd, because when he has previously made contact with people
at their vehicle door, "their usual attention is on me."

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Cocking asked O'Kelly to step out of the vehicle, and the two walked to the rear of the
van. Cocking asked O'Kelly if the information on his driver's license—including his Overland
Park, Kansas, address—was correct, and O'Kelly said, "Yes." Cocking then asked either "where
he was going" or "where he was coming from." O'Kelly replied that he was coming from
Phoenix and going to Kansas City. Cocking asked O'Kelly how long he had been in Phoenix and
O'Kelly indicated a couple of days. Cocking asked O'Kelly why he was in Phoenix, and O'Kelly
replied they were visiting his dad's girlfriend, indicating that his dad was the van's passenger.
Cocking testified that perhaps because he asked for the vehicle registration, O'Kelly volunteered
that the van was rented. O'Kelly also said the van was rented by his dad.

Cocking went to the passenger side of the van to obtain the rental agreement. He asked
the passenger for his ID "to verify that was him." After obtaining the driver's license, he also
asked Morlock for the rental agreement. According to Cocking, obtaining the rental agreement
was like obtaining the registration, to "make sure they had authorization to have that vehicle."

While Morlock was looking for and eventually retrieving the rental agreement, Cocking
asked him several questions. In response to Cocking's query of "where he was going or coming
from," Morlock said he was coming from Phoenix and going back to Kansas City. Morlock also
said he "had flew to Phoenix from Kansas City" and "was going to meet a girl he had met on the
internet." However, he had not been able to make contact with her. He also said he had been in
Phoenix a couple of days.

Cocking reviewed the rental agreement and determined that the van was rented from
Tucson, not from Phoenix. Cocking knew they were two different large cities, so he asked
Morlock about the discrepancy. Morlock explained that he had flown into a "Phoenix/Tucson
airport located right in that area." Cocking asked Morlock some additional questions. Morlock
replied that while he flew to Phoenix, he did not have enough money to purchase a ticket to fly
back, so he decided to rent a car.

Cocking felt the activity was suspicious. His opinion was based upon:

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"the nervousness, the rental agreement. They went to Phoenix, they told me they flew to Phoenix
for a couple of days, the rental agreement was out of Tucson. One-way rental, which is very
expensive. It would cost just as much to fly back. And with a short trip, it's just definitely
suspicious activity."

Cocking also testified he further found it suspicious that Morlock would fly one-way to
Phoenix to see the woman and not even make contact with her, since seeing her was the purpose
for the trip. He also thought it suspicious that O'Kelly would describe the female as his dad's
girlfriend, and Morlock would instead describe her as someone he had simply met on the
internet.

Cocking then took both driver's licenses and the rental agreement to his patrol vehicle.
While walking past the van, Cocking looked into a rear window and noticed four bags in the
cargo area. Cocking found the number of bags unusual because Morlock and O'Kelly had said
they were in Phoenix for only a couple of days.

While in the patrol vehicle, Cocking wrote O'Kelly a warning citation and ran both names
through his vehicle's computer for a warrant check. The rental agreement also "appeared to be in
order."

When both names cleared the warrant check, Cocking returned to the passenger side of
the van. Both Morlock and O'Kelly were seated inside. Cocking handed the documents to
Morlock and asked O'Kelly why he was not in school. O'Kelly replied he was "just taking a
couple days off."

Cocking then stepped back and said, "Have a nice day, talk to you later. Have a nice
day." He turned and walked one to two steps away from the van toward his patrol vehicle, and
then turned and reapproached the van. The passenger window was still down. Cocking asked,
"Hey, do you mind if I ask you a couple of questions?" Morlock and O'Kelly responded, "Yeah,
go ahead."

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Cocking asked them if they would step out of the van, and both complied. Cocking told
the pair, "We have large amounts of drugs traveling up and down U.S. 54," and then asked, "Do
you have any drugs or weapons in your car?" Morlock denied having drugs or weapons inside.
Cocking then asked Morlock for permission to search the van; Morlock answered, "Yes."

Cocking asked Morlock if he could search his person for weapons, and Morlock agreed.
The search turned up no weapons on him. After opening the rear of the van, Cocking opened
one of the suitcases in the cargo area. He observed cellophane packages that he believed were
packaged drugs. Cocking then arrested both Morlock and O'Kelly and called for backup. A
drug dog indicated it smelled drugs at the rear door of the van. Law enforcement officers
ultimately removed 113 pounds of marijuana from the van.

Morlock was charged with possession of marijuana with intent to sell, in violation of
K.S.A. 65-4163(a)(3), and the failure to affix a drug stamp, in violation of K.S.A. 79-2504.

After Morlock filed a motion to suppress the evidence, the trial court held a hearing on
the motion in conjunction with a bench trial. After hearing the evidence, the trial court found
that the encounter between Cocking and Morlock was continuous essentially because Cocking
had formed reasonable suspicion which was articulated to the court's satisfaction: after returning
to the vehicle after the warrant check, Cocking "continued with the detention because his
suspicion was aroused."

The trial judge gave the following reasons supporting his decision on reasonable
suspicion: (1) driver O'Kelly's nervousness; (2) Cocking was told the trip originated in Phoenix,
yet the rental agreement showed Tucson; (3) Morlock explained this discrepancy by mentioning
the "Phoenix/Tucson" airport; (4) O'Kelly described Morlock's female friend as his dad's
"girlfriend," while Morlock described her only as "someone he met on the internet"; (5) the
female was not contacted in Phoenix, even though Morlock had traveled from Kansas City for
that express purpose; (6) the van was being driven pursuant to a one-way rental agreement; and
(7) four pieces of luggage were packed for only 2 days in Phoenix.
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Because the trial judge found that Morlock voluntarily consented to the search of the van
during this appropriate extension of the detention, he held that no Fourth Amendment violation
occurred. Accordingly, the judge overruled Morlock's motion to suppress the evidence and later
found him guilty of both charges. The judge later sentenced Morlock to 18 months' probation
with an underlying sentence of 15 months in prison.

On appeal, the majority of the Court of Appeals panel essentially held that Cocking
improperly extended the stop. It reversed the trial court's denial of the motion to suppress and
set aside Morlock's convictions. Judge Leben dissented. State v. Morlock, 40 Kan. App. 2d 216,
190 P.3d 1002 (2008).

Additional facts will be added as necessary to the analysis.

ANALYSIS

I. Standard of Review

Our standard of review is well known:

"When reviewing a motion to suppress evidence, this court reviews the factual underpinnings of a
district court's decision for substantial competent evidence and the ultimate legal conclusion
drawn from those facts de novo. The ultimate determination of the suppression of evidence is a
legal question requiring independent appellate review. [Citation omitted.] The State bears the
burden to demonstrate that a challenged search or seizure was lawful. [Citation omitted.]" State v.
Moore, 283 Kan. 344, 349, 154 P.3d 1 (2007).

Appellate court review of a search arising out of a traffic stop initially requires a
determination on whether the stop began legally. Morlock concedes this point because his son
committed a traffic violation, i.e., failed to signal lane changes. See K.S.A. 22-2402(1); Moore,
283 Kan. at 349 (a traffic violation provides an objectively valid reason to effectuate a traffic
stop, i.e., articulable facts sufficient to constitute reasonable suspicion). Instead, Morlock
basically argues that Deputy Cocking exceeded the constitutionally permissible boundaries of a
legally commenced stop generally as described in Moore:
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"'A law enforcement officer conducting a routine traffic stop may request a driver's
license and vehicle registration, run a computer check, and issue a citation. When the driver has
produced a valid license and proof that he or she is entitled to operate the car, the driver must be
allowed to proceed on his or her own way, without being subject to further delay by the officer for
additional questioning.'" 283 Kan. at 351 (quoting State v. Anderson, 281 Kan. 896, 902, 136 P.3d
406 [2006]).

More specifically, Morlock agrees with the majority of the Court of Appeals panel. He
argues that Cocking exceeded the stop's constitutionally permissible boundaries by (1) asking
certain travel questions of driver O'Kelly and passenger Morlock and also (2) taking Morlock's
driver's license to his patrol vehicle and using it to run a warrant check on the vehicle computer.
Morlock contends that because these events impermissibly extended the stop, his consent to
search given during that extension was therefore invalid.

II. Arizona v. Johnson

We start our analysis with an advantage over the trial judge and the judges on the Court
of Appeals panel. Specifically, we have access to a decision rendered by the United States
Supreme Court after the majority and dissenting opinions in State v. Morlock were filed on
August 29, 2008. On January 26, 2009, the Court filed Arizona v. Johnson, ___ U.S. ___, 172 L.
Ed. 2d 694, 129 S. Ct. 781 (2009), an opinion authored by Justice Ginsburg for a unanimous
court.

In Johnson, three police officers stopped a car after a license plate check revealed that the
registration had been suspended for an insurance related violation, which can justify a citation
under Arizona law. The car contained three occupants. At one officer's request, the driver got
out and the officer began obtaining the driver's license and information about the vehicle's
registration and insurance. Another officer, Trevizo, attended to Johnson who sat in the back
seat.

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Trevizo observed Johnson was wearing clothing consistent with membership in the Crips
gang. While Johnson was seated, and in response to Trevizo's questions, he provided his name
and date of birth but said he had no identification with him. He volunteered he was from Eloy,
Arizona, a place Trevizo knew was home to a Crips gang. Johnson further told her that he had
served time in prison for burglary and been out for about a year.

Trevizo wanted to question Johnson away from the other passenger to obtain information
about the gang Johnson might be in, so she asked him to get out of the car. After he did so, she
began to pat him down for officer safety. When she felt a gun butt near his waist, he struggled,
and she placed him in handcuffs.

A divided panel for the Arizona Court of Appeals reversed the trial court's denial of
Johnson's motion to suppress. As Justice Ginsburg summarized: "that court concluded, once
Officer Trevizo undertook to question Johnson on a matter unrelated to the traffic stop, i.e.,
Johnson's gang affiliation, pat-down authority ceased to exist, absent reasonable suspicion that
Johnson had engaged, or was about to engage, in criminal activity." 129 S. Ct. at 787.

The Supreme Court observed, among other things, that under Brendlin v. California, 551
U.S. 249, 168 L. Ed. 2d 132, 127 S. Ct. 2400 (2007), a passenger is seized, just as the driver is,
"'from the moment [a car stopped by the police comes] to a halt on the side of the road.'" 129 S.
Ct. at 787. The court ultimately reversed the Arizona Court of Appeals and remanded, holding
that Johnson's pat-down was constitutional. It made several key points in its holding:

"A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic
violation. The temporary seizure of driver and passengers ordinarily continues, and remains
reasonable, for the duration of the stop. Normally, the stop ends when the police have no further
need to control the scene, and inform the driver and passengers they are free to leave. See
Brendlin, 551 U.S. at 258, 127 S. Ct. 2400. An officer's inquiries into matters unrelated to the
justification for the traffic stop, this Court has made plain, do not convert the encounter into
something other than a lawful seizure, so long as those inquiries do not measurably extend the
duration of the stop. See Muehler v. Mena, 544 U.S. 93, 100-01, 125 S. Ct. 1465, 161 L. Ed. 2d
229 (2005)." (Emphasis added.) Johnson, 129 S. Ct. at 788.

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The Johnson Court's reliance upon Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 229,
125 S. Ct. 1465 (2005), is instructive. There, Mena was handcuffed and detained in her
residence during the execution of a search warrant which listed, among other sought items,
deadly weapons and evidence of street gang membership. An Immigration and Naturalization
Service officer had accompanied the officers executing the search warrant, and during Mena's
detention she was asked for her name, date of birth, place of birth, immigration status, and
immigration documentation.

The Ninth Circuit court of appeals had held that the officers violated Mena's Fourth
Amendment rights by questioning her about her immigration status during the otherwise lawful
detention without independent reasonable suspicion. The Supreme Court reversed, holding that
the Ninth Circuit's assumption that the questioning constituted a discrete Fourth Amendment
event was faulty because "'mere police questioning does not constitute a seizure.'" 544 U.S. at
101.

The Muehler Court heavily relied upon its decision released 57 days earlier, Illinois v.
Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005), where the Court held that,
without more, a drug dog sniff performed during a lawfully commenced traffic stop did not
violate the Fourth Amendment. The Muehler Court essentially held that law enforcement
officers could ask questions unrelated to the purpose of a search—without reasonable
suspicion—as long as the questions did not prolong the search:

"Because we held [in Caballes] that a dog sniff was not a search subject to the Fourth Amendment,
we rejected the notion that 'the shift in purpose' . . . was unlawful because it 'was not supported by
a reasonable suspicion.' Id. at 408, 125 S. Ct., at 836-838. Likewise here, the initial Summers
detention [pursuant to the search warrant] was lawful; the Court of Appeals did not find that the
questioning extended the time Mena was detained. Thus no additional Fourth Amendment
justification for inquiring about Mena's immigration status was required." (Emphasis added.) 544
U.S. at 101.

In short, the Muehler Court's test of "no extension" of the detention's duration was
expanded 4 years later by the Johnson Court to become a test of "no measurable extension."
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Johnson also eliminated any doubt that the Muehler rationale applied to traffic stops. See State
v. Smith, 286 Kan. 402, 184 P.3d 890 (2008); United States v. Stewart, 473 F.3d 1265 (10th Cir.
2007). Johnson therefore also confirmed that an officer's inquiries into matters unrelated to the
justification for the stop did not necessarily require reasonable suspicion.

With this background, we now turn to analyzing Morlock's claim that Deputy Cocking
exceeded the constitutionally permissible boundaries of the stop by (1) asking certain travel
questions of driver O'Kelly and passenger Morlock and (2) taking Morlock's driver's license to
his patrol vehicle and running a warrant check.

III. Specific travel plans

The Court of Appeals majority acknowledged the existence of substantial authority
specifically authorizing a law enforcement officer to inquire about a detained driver's travel plans
during a traffic stop without unconstitutionally extending the scope of the stop. State v. Morlock,
40 Kan. App. 2d 216, 224, 190 P.3d 1002 (2008). It also acknowledged that "[a]lthough courts
have uniformly held that a law enforcement officer may question a driver of a vehicle about
travel plans, there is limited authority upholding such questioning of passengers." (Emphasis
added.) 40 Kan. App. 2d at 225. Based upon its view of this research, the panel majority
approved Cocking asking both driver and passenger where they were traveling to and from.

But while acknowledging some authority to the contrary allowing similar questions, e.g.,
United States v. Brigham, 382 F.3d 500 (5th Cir. 2004), the majority disapproved the following
questions by Cocking:

(1) asking the 16-year-old driver O'Kelly how long he had been in Phoenix and
why he was there;
(2) asking passenger Morlock how long he had been in Phoenix, why he went
there, and why after flying there he was instead driving back.

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The majority held that these five questions were "not reasonably related in scope to the traffic
infraction which justified the stop in the first place." 40 Kan. App. 2d at 230.

Judge Leben disagreed because Morlock's "claim that the officer couldn't ask limited
questions about his travel plans is contrary both to the rationale of recent United States Supreme
Court cases and to cases decided by courts elsewhere." 40 Kan. App. 2d at 237. We agree with
Judge Leben that Cocking's five questions were constitutionally permissible.

(1) The two questions to driver O'Kelly were permissible incidents to routine traffic stop

We first conclude that the panel majority's disapproved questions of driver O'Kelly are
permissible because they are not "inquiries into matters unrelated to the justification for the
traffic stop." See Arizona v. Johnson, 129 S. Ct. 788.

The case of United States v. Rivera, 570 F.3d 1009 (8th Cir. 2009), is of particularly
useful guidance because it was decided after the Supreme Court's decision in Johnson. During a
traffic stop, the trooper explained the reason for the stop and asked for Rivera's driver's license
and registration. He also inquired about the purpose of Rivera's trip, and Rivera answered that
he was travelling to Memphis to pick up his family. The trooper asked what Rivera's family was
doing in Memphis, and Rivera eventually confirmed that his wife went on a trip to visit her
mother-in-law. Rivera also told the trooper that he was employed as a painter, and the trooper
observed that Rivera had two cell phones with him in the truck.

About a minute and a half into the stop, they moved to the rear of the truck. The trooper
continued to question Rivera about how his family got to Memphis and whether Rivera had
previously been arrested. In response to the question of previous arrests, Rivera answered that
he had been issued a ticket a few hours earlier, and presented it. When the trooper asked again
about previous arrests, Rivera did not respond, instead giving more details about the ticket he
had received. Among other things, the trooper asked where Rivera's mother-in-law lived in
Memphis, and Rivera responded that he did not know. The trooper then inquired how Rivera
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would find his wife when he got to Memphis. After some additional inaudible and confused
responses, Rivera eventually said he would need to call her.

At about 4 1/2 minutes into the stop, the trooper asked whether Rivera had guns or
anything illegal in the truck. When Rivera answered, "No," the trooper asked if he could search
the truck. Rivera said, "Yeah," and the trooper again confirmed, "You don't mind if I search the
vehicle?" Rivera responded, "You can look in." 570 F.3d at 1011. The trooper then instructed
Rivera to sit in the front seat of the patrol car, where he continued to question Rivera about how
he was going to contact his family once he arrived in Memphis.

Six minutes into the traffic stop, the trooper provided Rivera's personal information for a
records check. While waiting for the results, the trooper continued to ask where Rivera
purchased the truck, when he began his trip to Memphis, and how he was going to meet his
family in Memphis. Over the next 2 1/2 minutes, the trooper briefly asked again if Rivera had a
phone number for a family member in Memphis and inquired about Rivera's employer.

Fourteen minutes into the stop the trooper received the records information, two minutes
later, Rivera withdrew his consent, and a drug dog later located cocaine in Rivera's truck.

The Eighth Circuit rejected Rivera's argument that the stop was unreasonably prolonged
during the first 15 minutes by the trooper's mixing drug-interdiction questions with routine traffic
stop inquiries. As for the first 4 to 6 minutes of the stop, the Rivera court concluded that

"much of [the] exchange with Rivera related to the traffic stop. He requested Rivera's license and
registration, explained the reason for the stop, and inquired into the destination and purpose of
Rivera's trip, his criminal history, and the details of his previous traffic ticket earlier that day.
These are permissible incidents of a routine traffic stop. United States v. Long, 532 F.3d 791, 795
(8th Cir. 2008); Peralez, 526 F.3d at 1119." (Emphasis added.) 570 F.3d at 1013.

Like the Eighth Circuit, we too hold that such travel questions are "permissible incidents
to a routine traffic stop." Cf. K.S.A. 22-2402 (in Terry stop, officer may demand, inter alia, an
explanation of the person's actions). These types of questions were permissible in a number of
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jurisdictions, including Kansas, even before Arizona v. Johnson. Moreover, the Eighth Circuit's
failure to include Johnson in its analysis of this particular issue strongly suggests that court did
not believe that Johnson influenced its determination of whether these were "matters unrelated to
the justification for the traffic stop." See 129 S. Ct. at 788.

The Tenth Circuit's approach to this issue before Johnson was similar to the Eighth
Circuit's today. In United States v. Alcaraz-Arellano, 441 F.3d 1252, 1256 (10th Cir. 2006), in
response to a Kansas deputy's questions, the driver answered that "he lived in New York, had
traveled to California, had stayed there 1 and1/2 days, had purchased the car, and was en route
back to New York." The court clearly held that the deputy "asked only a few questions about
travel plans and vehicle ownership before going to his patrol car to issue a warning. Such limited
questioning is proper, because an officer may routinely ask about travel plans and ownership
during a lawful traffic stop. See Bradford, 423 F.3d at 1156." (Emphasis added.) 441 F.3d at
1259.

Similarly, in United States v. Williams, 271 F.3d 1262 (10th Cir. 2001), the officer asked
about the driver's travel plans during the initial approach to the vehicle and while holding the
driver's license and a rental agreement. The driver replied that although his sister was from
Chicago, she had traveled from Chicago to Kansas City with a friend. He explained that his
family was having an Easter gathering the following day in Denver, and due to his sister's fear of
flying, he was driving to Kansas City to pick her up and bring her to Denver. The Tenth Circuit
rejected the driver's challenge to the questions, holding that "questions relating to a driver's travel
plans ordinarily fall within the scope of a traffic stop." 271 F.3d at 1267; see United States v.
West, 219 F.3d 1171, 1176 (10th Cir. 2000) (stating that "questions about travel plans are routine
and 'may be asked as a matter of course without exceeding the proper scope of a traffic stop.'");
State v. Moore, 283 Kan. 344, 347, 154 P.3d 1 (2007) (although apparently not raised as an issue
on appeal by the driver defendant, when questioned about his travel plans he stated that "he had
gone to Las Vegas for an army airborne reunion").

The Fifth Circuit has provided its rationale for allowing such questions in United States v.
Brigham, 382 F.3d 500, 508 (5th Cir. 2004): "An officer may also ask about the purpose and
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itinerary of a driver's trip during the traffic stop. [Citation omitted.] Such questions may
efficiently determine whether a traffic violation has taken place, and if so, whether a citation or
warning should be issued or an arrest made." (Citing to United States v. Holt, 264 F.3d 1215,
1221 [10th Cir. 2001] [en banc]).

For these reasons, we hold that Deputy Cocking's travel questions of O'Kelly—how long
he had been in Phoenix and why he was there—were proper because they were permissible
incidents to a routine traffic stop.

(2) The three questions to passenger Morlock did not measurably extend the stop

The record reveals that Cocking's entire discussions with O'Kelly and Morlock before the
warrant checks, including all of the admittedly legitimate questions as well, took only 2 minutes.
We independently observe that Cocking's questions to Morlock, concerning where he was going
or coming from, why he had gone to Phoenix, and why after flying there he was instead driving
back in a rented van, were apparently asked while Morlock was looking for the rental agreement.

"[Defense Counsel]: You went to Mr. Morlock's window because you wanted to obtain
the lease agreement; correct?
"[Cocking]: That's correct.
"[Defense Counsel]: All right. But while there, you asked much more than just, 'May I
have the lease agreement', correct?
"[Cocking]: That's correct.
"[Defense Counsel]: All right. Further delaying the stop or allowing him to leave.
There is delay there, correct?
"[Cocking]: Just getting information while he was reaching and finding the
rental agreement, I was asking those questions." (Emphasis
added.)

The panel majority effectively admitted that Cocking's request to see the rental agreement
and Morlock's hunt for it are undeniably permissible incidents of the routine traffic stop. See
United States v. Brigham, 382 F.3d at 507-08 (no constitutional impediment to an officer
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requesting to examine driver's license, vehicle registration, or rental papers); United States v.
Garcia, 167 Fed. Appx. 737, 740 (10th Cir. 2006) (finding no violation in asking passenger for
registration papers after determining driver could not show he was "entitled to operate the
vehicle"); cf. State v. Moore, 283 Kan. 344, Syl. ¶ 4 (officer conducting routine traffic stop may
request driver's license and vehicle registration as proof that driver is entitled to operate the
vehicle).

Because the three questions were asked during the concededly legitimate hunt for the
agreement, they could not have "measurably extended" the stop. Arizona v. Johnson, __ U.S. __,
172 L. Ed. 2d 694, 129 S. Ct. 781 (2009) (questioning passenger and subsequent patdown
performed concurrent with another officer's obtaining from driver his license, registration, and
insurance); see Alcaraz-Arellano, 441 F.3d at 1259 (because trooper wrote warning ticket in
patrol car while asking driver questions not limited to travel plans and vehicle ownership, no
extension); United States v. Purcell, 236 F.3d 1274, 1280 (11th Cir. 2001) (question regarding
weapons did not extend the duration of the stop because was asked while officer was still writing
out the citation and awaiting the results of a computer check); United States v. Crain, 33 F.3d
480, 485 (5th Cir. 1994) ("[w]hen questioning takes place while officers are waiting for the
results of a computer check—and therefore does not extend the duration of the stop—the
questioning does not violate Terry").

We acknowledge that the record is not crystal clear on whether Cocking's question—why
after flying to Phoenix Morlock was instead driving a rental van back to Kansas City—was
asked concurrent with the search for the rental agreement or after Cocking reviewed it. But
assuming the question was asked later, we observe that Cocking, the trial judge, and Judge Leben
all found the one-way aspect of the rental as contributing to reasonable suspicion. See United
States v. Wood, 106 F.3d 942, 946-47 (10th Cir. 1997) (unusual travel plan or inconsistent
information can contribute to reasonable suspicion); cf. United States v. Bradford, 423 F.3d
1149, 1157-58 (10th Cir. 2005) (reasonable suspicion based in part upon "the financial illogic of
purchasing a series of one-way plane tickets and one-way car-rentals"). The mere use of rental
vehicles, one-way or otherwise, has been considered as contributing to reasonable suspicion
17

because they are "often used by narcotics traffickers." United States v. Contreras, 506 F.3d 1031,
1036 (10th Cir. 2007).

We agree with Judge Leben's analysis, particularly given Cocking's testimony that based
upon his training and education, drug smugglers "fly down," rent a car, pick up the drugs, and
then transport the drugs. "'That's definitely a warning sign that should go off in your head about
drug interdiction.'" 40 Kan. App. 2d at 258. Judge Leben ultimately gave considerable weight
to Cocking's testimony about the "fly, then rent" factor, emphasizing Cocking's overall law
enforcement experience, especially his recent experience with drugs. As we ruled in State v.
Moore, an appellate court makes its determination on whether reasonable suspicion exists "with
deference to a trained law enforcement officer's ability to distinguish innocent and suspicious
circumstances [citation omitted], remembering that reasonable suspicion represents a 'minimum
level of objective justification' which is 'considerably less than proof of wrongdoing by a
preponderance of the evidence.'" 283 Kan. at 354.

In short, the five travel questions—asking O'Kelly and Morlock each how long they had
been in Phoenix and why they were there, and asking Morlock why after flying there he was
instead driving back—were constitutionally permissible.

IV. Warrants check on Morlock

The panel majority in the instant case additionally disapproved of Deputy Cocking taking
passenger Morlock's driver's license to his patrol vehicle and also then using it to check for
outstanding arrest warrants on his computer. Judge Leben disagreed because Morlock's "claim
about the warrant check is precluded by recent United States Supreme Court cases interpreting
the Fourth Amendment." 40 Kan. App. 2d at 237. We agree with Judge Leben that these
particular Cocking actions were constitutionally permissible. Specifically, any extension of the
stop was based upon Cocking's reasonable suspicion. See Moore, 283 Kan. at 350 (appellate
court reviews to determine if substantial competent evidence supports the district court findings
but reviews de novo the legal conclusion—reasonable suspicion—as a question of law).

18

An officer is not required to disregard information which may lead him or her to suspect
independent criminal activity during a traffic stop. When "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." United States v. Barahona, 990 F.2d 412, 416 (8th Cir.
1993); see also United States v. Pereira-Munoz, 59 F.3d 788, 791 (8th Cir. 1995) (When officers
develop reasonable, articulable suspicion of criminal activity during a traffic stop, they have
"'"justification for a greater intrusion unrelated to the traffic offense"'" and are "permitted 'to
graduate their responses to the demands of their particular situation.'").

As an aside, we observe that the fact the computer checks eventually turned up no
outstanding warrants does not automatically mean that Deputy Cocking lacked legally sufficient
suspicion to conduct the checks in the first place. See United States v. Jenson, 462 F.3d 399, 404
(5th Cir. 2006).

Cocking testified without refutation that before he asked the two travel questions of
O'Kelly that the panel majority disapproved, he was aware of previous narcotics arrests on
Highway 54. He also found "the nervousness" suspicious. He testified that he noticed O'Kelly's
nervousness—shaking and trembling, dropping his license into his lap, and almost dropping it to
the ground when handing it to Cocking. He did admit, however, that some young drivers, like
O'Kelly, may be nervous when stopped by an officer. The trial court noted O'Kelly's
nervousness as contributing to its ultimate determination of reasonable suspicion to extend the
stop. Judge Leben acknowledged its appearance in the reasonable suspicion calculus. See
Moore, 283 Kan. 344 (driver's nervousness can contribute to reasonable suspicion). Cocking
also noticed Morlock, whose identity was yet unknown, looking straight ahead at the dash while
Cocking talked to O'Kelly. He testified that he found Morlock's behavior odd. See United States
v. Brigham, 382 F.3d at 508 (officer's "increasing suspicion was also fueled by . . . [driver's] . . .
avoidance of eye contact").

Cocking testified, also without refutation, that he then learned the following: the van was
rented, it was rented by O'Kelly's father, and the father was the one staring intently at the dash.
Judge Leben especially branded Morlock's lack of paternal reaction as strange and suspicious:
19

"What dad would rigorously try to avoid eye contact with the officer by only looking forward
when his [16-year-old] son had been pulled over?" 40 Kan. App. 2d at 256.

Cocking testified to other factors that contributed to his reasonable suspicion. These
factors included the later-learned discrepancy about where the van was rented. Morlock told
Cocking the van was rented in Phoenix, but the rental papers showed Tucson, which Judge
Leben noted was 116 miles from Phoenix. When Cocking asked Morlock why he would fly to
Phoenix and rent a van from Tucson, he explained that "he got it at the Phoenix/Tucson Airport"
and "[i]t's all right there in one location, and that's where we rented the vehicle." Based upon
Cocking's testimony, the trial judge found these both aroused Cocking's suspicions and thus
contributed to the judge's eventual finding of reasonable suspicion. Judge Leben found this
explanation merely poured gasoline on Cocking's "inferno of suspicion." 40 Kan. App. 2d at
257; cf. State v. DeMarco, 263 Kan. 727, 739, 952 P.2d 1276 (1998) (discrepancies in travel
plans can contribute to reasonable suspicion); United States v. McRae, 81 F.3d 1528, 1534-35
(10th Cir. 1996) (apparent contradiction between dates on defendant's car rental agreement and
alleged travel plans contributed to reasonable suspicion).

Cocking further found suspicious the discrepancies on whether father and son were going
to see Morlock's girlfriend or simply a woman Morlock met on the internet, and whether they
actually saw the woman. O'Kelly told him they were in Phoenix "visiting his dad's girlfriend"
while Morlock said they "didn't make contact with" the internet woman. The trial judge found
the uncertainty about Morlock's relationship with the woman an inconsistency that contributed to
Cocking's suspicion. Judge Leben also found the inconsistency significant. See United States v.
Zubia-Melendez, 263 F.3d 1155, 1162 (10th Cir. 2001) (dubious or inconsistent answers can
contribute to reasonable suspicion).

When Cocking appropriately asked Morlock why—after flying to Phoenix—he instead
rented a van to return to Kansas City, Morlock replied he did not have the money to buy plane
tickets. Cocking additionally found suspicious the combination of "taking a one-way flight to
Phoenix to visit a woman but then not make contact at all," and then renting a van to return to
Kansas City because of a money shortage. 40 Kan. App. 2d at 256. Cocking testified he
20

believed that one-way vehicle rentals are very expensive too: it "would cost just as much to fly
back." The trial judge found both factors contributed to his finding reasonable suspicion, first
noting that "this person was not even contacted in Phoenix, even though they traveled all the way
from Kansas City to Phoenix for that stated purpose." Judge Leben agreed. As mentioned, the
trial court next noted "the one-way rental agreement" supported his finding of reasonable
suspicion, and Judge Leben found this fact particularly significant, given Cocking's testimony
based upon his training and education about the drug smugglers' "fly, then rent" method. Cf.
United States v. Bradford, 423 F.3d at 1157-58 (reasonable suspicion based in part upon "the
financial illogic of purchasing a series of one-way plane tickets and one-way car-rentals").

Cocking also testified that the short duration of the trip contributed to his suspicion,
particularly given the flight to Phoenix and the driving of an expensive rental van back to Kansas
City 2 days later. Short duration was acknowledged by Judge Leben as a factor in the calculus,
and we agree. 40 Kan. App. 2d at 256; see United States v. Contreras, 506 F.3d at 1036
(Contreras drove 1,200 miles to see her family, only to turn around within a day and begin the
1,200 mile drive back—"seemed suspicious at best and incredible at worst."); United States v.
Alcaraz-Arellano, 441 F.3d at 1260 (implausible travel plans can form a basis for reasonable
suspicion).

We conclude as a matter of law that this information known to Cocking, coupled with his
15-year experience in law enforcement and recent experience with drug interdiction, is sufficient
to justify taking Morlock's license to the patrol vehicle and using it to run a warrant check. See
Moore, 283 Kan. 350 (appellate court reviews to determine if substantial competent evidence
supports the district court findings but reviews de novo the legal conclusion—reasonable
suspicion—as a general question of law). We expressly do not consider in our calculus the
factor of the four bags in the van, only because as the panel majority pointed out, Cocking
acquired that information after he had already decided to take Morlock's license to his patrol
vehicle.

Finally, Morlock's counsel has submitted a letter under Rule 6.09(b) (2008 Kan. Ct. R.
Annot. 47) contending that a July 17, 2009, opinion of the Court of Appeals, State v. Diaz-Ruiz,
21

42 Kan. App. 2d 325, 211 P.3d 836 (2009), contains persuasive rationale. Morlock argues that
Cocking failed to comply with the legal statement contained in that opinion's Syl. ¶ 1 which
provides:

"When analyzing whether an officer's actions have exceeded the scope or duration of a traffic stop,
the court considers whether the officer diligently pursued a means of investigation that was likely
to confirm or dispel the officer's suspicions quickly, during which time it was necessary to detain
the defendant." 42 Kan. App. 2d 325, Syl. ¶ 1.

More particularly, Morlock argues that Cocking did not "diligently" pursue the investigation to
"quickly" address his suspicions because he did more than simply obtain O'Kelly's driver's
license, run a computer check on him, and write a citation.

Morlock's contention is best addressed by simply noting we earlier held that Cocking
developed increasing amounts of suspicion during the stop. This warranted his continued
investigation which resulted in an increase in detention length. We cannot say Cocking failed to
diligently pursue his investigation to quickly address his suspicions, especially when, as Judge
Leben points out, the entire stop took only 12 minutes. See 40 Kan. App. 2d at 243.

The decision of the Court of Appeals is reversed. The decision of the district court is
affirmed.