In this archive episode, Dennis explains when it is okay to run criminal history checks. Recorded on 07/02/2018.
We do not believe that Finke’s Fourth Amendment rights were infringed when Delmore decided to wait five minutes for the results of the criminal history check he had requested. We note that there is little authority addressing when and under what circumstances a criminal history check is permissible during a routine traffic stop. Recently, the Tenth Circuit indicated that for officer safety reasons such a check would be an unobjectionable part of every routine traffic stop:
[Criminal history] checks are run largely to protect the officer. Considering the tragedy of the many officers who are shot during routine traffic stops each year, the almost simultaneous computer check of a person’s criminal record, along with his or her license and registration, is reasonable and hardly intrusive.
United States v. McRae, 81 F.3d 1528, n. 6 (10th Cir.1996). Other cases demonstrate an implied acceptance of criminal history checks as generally reasonable, by beginning their unconstitutional detention analysis only after the point at which a criminal history report has been obtained. For example, in Crain, 33 F.3d at 483, the Fifth Circuit held that it was not an unreasonable or illegal detention to question the driver and passengers of a car about matters unrelated to the traffic stop while the officers were waiting for the results of a computer check, including a criminal history search. This, of course, assumes that it was reasonable to ask for the criminal history check and to extend the detention until it was received. See also United States v. Sandoval, 29 F.3d 537, 538, 542-43 (10th Cir.1994) (finding criminal history report of drug arrest, standing alone, insufficient to extend traffic stop, but not questioning NCIC request producing criminal record); McManus, 70 F.3d at 993 (approvingly noting use of NCIC criminal history check in routine traffic stops to support using of same check in VIN identification investigation).
*1280 Thus there is some support for the argument that requesting a criminal history check is a reasonable, constitutional part of all or most traffic stops. We find such a bright line rule troubling, however, because often criminal history checks take longer to process than the usual license and warrant requests, and after a certain point meaningful additional time could, we believe, constitute an unreasonable detention of the average traveller. Unless technology permits criminal record requests to be conducted reasonably contemporaneously with the license and warrant checks normally solicited, we are reluctant to say such checks are always reasonable or justified in the average traffic stop.
To decide this case, however, we need not adopt or reject any talismanic rule regarding the propriety of criminal history checks during routine traffic detentions, as it quickly became clear to Officer Delmore that this was not an average stop. Delmore was immediately confronted with suspicious behavior and circumstances — conduct consistent with drug trafficking. By the time Officer Delmore called in the criminal history check, we believe he had sufficient reasonable and articulable suspicions of drug courier activity to justify a speedy, unintrusive criminal record inquiry in addition to a warrant and license check. See Rivera, 906 F.2d at 322 (reasonable suspicions warranted limited questioning outside the scope of traffic related investigation); United States v. Barahona, 990 F.2d 412, 416 (8th Cir.1993) (if circumstances “give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions”); United States v. Cummins, 920 F.2d 498, 502 (8th Cir.1990) (reasonable suspicions of drug activity provides “justification for a greater intrusion unrelated to the traffic offense”), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448 (1991); United States v. Jones, 44 F.3d 860, 872 (10th Cir.1995) (subsequent detention justified during traffic stop if reasonable suspicion of illegal drug activity). In forming his suspicions, Delmore was entitled to assess the circumstances and the defendants’ behavior in light of his experience as a police officer and his knowledge of drug courier activity. Teslim, 869 F.2d at 322. He articulated several specific factors which contributed to his reasonable suspicion: 1) the car was a rental; 2) it had been driven to California and back in five days; 3) the passenger compartment appeared as if they had been living in it, i.e., making a straight trip without stopping; 4) Walton was extremely nervous; and 5) Finke appeared to be feigning grogginess in an attempt to avoid answering questions. While there may be an innocent explanation for each of these factors taken separately, viewing the circumstances in combination, we believe they constitute enough reasonable suspicion of drug activity to warrant an unintrusive criminal history check. See United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 1586-87, 104 L.Ed.2d 1 (1989) (each factor standing alone insufficient, but “taken together they amount to reasonable suspicion”); Teslim, 869 F.2d at 322 (must look to totality of the circumstances in analyzing reasonable suspicion). Significant to our conclusion are the facts that the request took only five extra minutes and involved no additional questioning, no action on the part of the defendants, and no request or wait for a canine unit. The criminal history request was the least infringing way for Delmore to quickly confirm or dispel his building suspicions and to determine whether continued inquiry or detention was justified. See Royer, 460 U.S. at 500, 103 S.Ct. at 1325-26; Teslim, 869 F.2d at 322.
In addition, officer safety concerns are legitimately heightened when suspicious activity is detected, and these concerns further warranted the record check in this case, especially since Walton was wearing a sheath containing a knife. The results of a criminal history check could indicate whether further back-up or other safety precautions were necessary. Balancing the nature and quality of the intrusion on Finke’s Fourth Amendment interest (waiting for a quick, unintrusive record check) against the importance of the governmental interests justifying the intrusion (detecting and preventing criminal activity, as well as safety concerns), see United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642-43, 77 L.Ed.2d 110 (1983), we find that Delmore’s decision to request and wait for the criminal history check was not unreasonable. Delmore’s reasonable suspicions
*1281 of drug trafficking at the time and legitimate safety concerns supported the brief detention of limited scope.