Amended February 23, 2016 In the Matter of Property Seized From Robert Pardee, Robert Pardee

                 IN THE SUPREME COURT OF IOWA
                                No. 14–0029

                          Filed December 11, 2015

                        Amended February 23, 2016


IN THE MATTER OF PROPERTY SEIZED FROM ROBERT PARDEE,

ROBERT PARDEE,

         Appellant.



         On review from the Iowa Court of Appeals.



         Appeal from the Iowa District Court for Poweshiek County,

Randy DeGeest and Joel D. Yates, Judges.



         A claimant in a forfeiture proceeding seeks further review of a

court of appeals decision upholding the denial of his motion to suppress.

DECISION OF THE COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.



         Nicholas Sarcone of Stowers & Sarcone PLC, West Des Moines, for

appellant.



         Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant

Attorney General, and Rebecca L. Petig, County Attorney, for appellee

State.
                                      2

MANSFIELD, Justice.

      This forfeiture case asks us to consider the constitutionality of a

narcotics dog sniff that occurred after the completion of about a twenty-

five-minute traffic stop on Interstate 80. Appellant Robert Pardee was a

passenger in an out-of-state vehicle that had been pulled over for

mundane traffic violations as part of a criminal interdiction effort. The

state trooper, in addition to preparing warnings for the traffic violations,

conducted extensive questioning of both the driver and Pardee.

Following that questioning, the trooper initially said the occupants were

free to go, but then decided to detain them while a narcotics dog was

called in. The narcotics dog alerted on the car, and a subsequent search

of the vehicle uncovered small amounts of marijuana, over $33,000 in

cash, and evidence of marijuana dealing.

      In the ensuing forfeiture proceeding for the $33,000, Pardee

claimed the cash was his, but the district court denied Pardee’s motion

to suppress based on res judicata from Pardee’s criminal proceeding,

where Pardee was ultimately acquitted. The district court then ordered

the money forfeited.    The court of appeals affirmed the denial of the

motion to suppress after reaching the merits of the motion. We granted

further review.

      Before us, Pardee maintains that res judicata does not apply and

that the stop violated the United States and Iowa Constitutions because:

(1) pretextual traffic stops are unconstitutional, (2) the State’s targeting

of out-of-state vehicles in its criminal interdiction efforts is a violation of

equal protection, (3) the trooper unconstitutionally prolonged and

expanded the stop beyond what was necessary to address the traffic

violations, and (4) the narcotics dog and its handler were not shown to be

reliable. We agree that res judicata does not apply and further hold that
                                     3

the trooper prolonged the stop in violation of the Fourth Amendment

beyond what was necessary to address the observed traffic violations.

Accordingly, without reaching the remainder of Pardee’s arguments, we

reverse the denial of his motion to suppress and remand for further

proceedings.

      I. Facts and Procedural History.

      On June 13, 2012, shortly before 9:30 a.m., Eric Vander Weil, an

Iowa State Trooper, was parked on the median of Interstate 80 watching

westbound traffic. He was participating in a criminal interdiction effort

focused on out-of-state vehicles. Trooper Vander Weil saw a silver Toyota

with California plates go past. The driver had his hand on his face and

did not look at the trooper as he passed by. Trooper Vander Weil decided

to follow the car.

      As he approached the moving vehicle in his patrol car, Trooper

Vander Weil observed the Toyota slowing down to sixty-five miles per

hour, below the seventy-miles-per-hour posted speed limit.         Pulling

alongside the moving vehicle, Vander Weil also noticed that the driver

looked over at him, then looked away and didn’t look back at him again.

In addition, Vander Weil saw the driver with his hands now at the ten

and two positions on the steering wheel. Vander Weil slowed his own

patrol car and pulled in behind the silver Toyota.

      At this point, Vander Weil saw that the top portion of the right

taillight on the car was not working.       He also observed the Toyota

following closely behind a semi. Vander Weil noted the existence of these

two traffic violations and decided to pull over the Toyota.

      Once the Toyota and the patrol car were both stopped on the

shoulder of the highway, Trooper Vander Weil walked up to the Toyota

and informed the driver of the two traffic violations. He noticed that the
                                         4

Toyota still had its right turn signal on. Trooper Vander Weil stated that

he was just going to issue warnings for the violations and there would be

no fine.   He asked the driver, John Saccento, to provide his license,

registration, and insurance and to accompany him to the patrol car. 1 He

also asked the passenger, Robert Pardee, to provide identification.

       Trooper Vander Weil felt that both Saccento and Pardee were

nervous when he spoke to them. Pardee had a “carotid artery pulsating

in his neck.” Trooper Vander Weil also detected the strong odor of air

freshener and saw a small can of air freshener on the floor of the car.

Additionally, he observed other items in the car, such as a bag of trash

and a sleeping bag on the back seat, which led him to believe the men

were “traveling hard, not taking any time to throw away their trash and

make any unnecessary stops.”

       Saccento told Trooper Vander Weil that he was moving back to

New Jersey from California. He explained that he was making the move

in multiple trips and that he was currently returning from his second trip

from California to New Jersey.               Trooper Vander Weil questioned

Saccento—now seated in the patrol car—why he wouldn’t just rent a U-

Haul to avoid the time and expense of repeated trips.                     Saccento

responded that it was “more fun to drive” and that he and Pardee had

made stops on the way.          Trooper Vander Weil continued to question

Saccento about where he planned to work in New Jersey (Saccento said

Prudential Financial Services), what part of New Jersey he was moving to

(Saccento said Berkeley Heights, where his family lives), who was with

Saccento in the car (Saccento said “a friend”—although Trooper Vander

       1Trooper  Vander Weil acknowledged it was not necessary for the driver to come
to his car for the warnings to be prepared, although the driver would need to sign to
acknowledge receipt of the warnings after they were finished.
                                          5

Weil of course had Pardee’s Arizona driver’s license), when he had made

the prior trip (Saccento said Memorial Day weekend), how long the drive

was from California to New Jersey (Saccento said about fifty hours), and

whether Saccento’s friend was still living in Arizona (Saccento said yes).

After four minutes of questioning along these lines, Trooper Vander Weil

called in a warrants check on Saccento and Pardee.                 Meanwhile, the

questioning continued.        The warrants check came back within three

minutes, showing that Pardee had a warrant but not for an extraditable

offense. 2

       Trooper Vander Weil continued to question Saccento seated next to

him in the patrol car. He also started to complete the warnings. After

Trooper Vander Weil and the driver had been in the patrol car about

sixteen minutes, Vander Weil printed out the warnings and told the

driver he would be “right back” after he returned Pardee’s driver’s

license.

       Trooper Vander Weil then proceeded to question Pardee. Pardee

gave answers that were generally consistent with those of Saccento about

the reason for their trip, Saccento’s planned employment in New Jersey,

the number of previous trips they had made between California and New

Jersey, and how long they had known each other.                   Pardee was also

uncertain as to when they had left California.                 He stated that he

supposed they had left California on this trip four days ago, immediately

after relating that it usually took four to five days to get from California

to New Jersey. Trooper Vander Weil felt that this “contradiction” was an

indication that “Pardee’s timeline was messed up.” Following about three

       2TrooperVander Weil also received criminal histories by email at this time that
showed both Saccento and Pardee had prior charges for possession of marijuana,
although Vander Weil did not remember if convictions resulted.
                                     6

minutes of questioning Pardee, Trooper Vander Weil returned to his

patrol car and had Saccento sign for the warnings. At 9:55 a.m., Trooper

Vander Weil told Saccento he was free to go.

         However, instead of leaving, Saccento asked Trooper Vander Weil,

“Do you mind if I like, just hang out here for a minute and stretch my

legs?”    Trooper Vander Weil said this was “no problem” but he then

asked Saccento if he would consent to answering more questions, which

Saccento did. Trooper Vander Weil then began asking pointed questions

about whether Saccento had “anything illegal in the car,” “any large

amounts of marijuana,” “large amounts of cocaine,” “large amounts of

heroin,” “large amounts of methamphetamine,” or “large amounts of

money.” Saccento answered no to all of these questions.

         Trooper Vander Weil next asked Saccento if it would be okay if he

searched the car.     Saccento responded he would prefer not to have a

search because he wanted to get going.         Trooper Vander Weil stated,

“Well, you don’t have to let me to, I mean it’s up to you.” Yet he then

asked if he could have a dog come and sniff the vehicle. Saccento again

declined the request.

         Trooper Vander Weil advised Saccento, “Well if you don’t want to

wait for the dog, and you don’t want to let me search, I’m going to detain

you, and I am going to call for a dog to come sniff your car . . . . Either

way I am going to run the dog.”       Several minutes later, the K-9 unit

arrived, and the dog alerted on the vehicle.

         Subsequent searches of the car revealed small amounts of

marijuana in the center console, in the backseat, and in the trunk. In

addition, a computer bag on the front passenger seat contained $33,100

in cash.     The search also uncovered handwritten notes appearing to

reflect sales of marijuana.     Saccento and Pardee were arrested and
                                      7

thereafter charged with possession of marijuana in violation of Iowa Code

section 124.401(5) (2011).       On September 4, the State also filed a

forfeiture notice under Iowa Code section 809A.8 with respect to the

$33,100 cash.

      Pardee filed a motion to suppress in the criminal case.              He

challenged the initial vehicle stop. Additionally, he argued that even if

the original stop was valid, law enforcement expanded and prolonged the

stop and conducted the dog sniff without reasonable suspicion or

probable cause.    Moreover, Pardee challenged the reliability of the dog

sniff and, therefore, the State’s reliance on the dog’s alert to justify the

ensuing search of the vehicle.

      Trooper Vander Weil and Trooper David Baker, the K-9 officer,

both testified at the suppression hearing. A DVD of the entire stop was

also introduced into evidence.

      Trooper Vander Weil acknowledged that he was engaged in

criminal interdiction work on June 13. His purpose was to stop vehicles

bearing out-of-state license plates from the west or east (such as

California) for traffic violations and use the stops as a basis to investigate

possible criminal activity.   Trooper Vander Weil acknowledged that he

“typically [is] not stopping in-state license plates for interdiction

activities.” Trooper Vander Weil also admitted that if he had only focused

on issuing warnings for the observed traffic violations, the entire stop

would take something like ten, eleven, or twelve minutes.               Here,

admittedly, “the traffic stop for Mr. Pardee and Saccento was really just

the avenue through which [he] could conduct a criminal interdiction

investigation.”   Trooper Vander Weil conceded that the questions he

posed to Saccento and Pardee had nothing to do with the traffic

violations and were related, instead, to his interdiction investigation. He
                                         8

further acknowledged that if he wasn’t doing this questioning, he could

have written the warning citations more quickly.

        Trooper Vander Weil enumerated the factors that he believed in

combination gave him reasonable suspicion to conduct the dog sniff: the

California license plates, the cautious behavior of the driver as the

trooper approached, some later inconsistent answers about travel plans,

the lack of cost-effectiveness for the trip, the nervousness of the vehicle

occupants as demonstrated in various ways, the criminal histories (or at

least arrest histories) of the occupants, the lived-in look of the vehicle,

and the strong odor of air freshener.

        Trooper Baker testified that he was the handler for Nellie—the

Belgian Malinois female narcotics dog who performed the sniff.              He

explained that he and Nellie had been through six weeks of K-9 camp

where     Nellie   was   trained    to       alert   on   marijuana,   cocaine,

methamphetamine, and heroin. Additionally, Nellie underwent roughly

sixteen hours per month of maintenance training. Nellie was certified as

a narcotics dog after a “typical and suitable” score on her final

examination. Trooper Baker added that he had forty-one deployments

with Nellie since her certification and she had done “a very good job.”

Nellie exhibited a “high alert level,” which meant her behavior made it

quite clear when she had detected a narcotics odor. Trooper Baker also

testified that he is the K-9 trainer for the entire State Patrol.

        Trooper Baker stated that he was called in on June 13 to perform

the dog sniff on the silver Toyota.            He testified that Nellie alerted

immediately on the passenger compartment of the vehicle, which the

DVD confirmed.

        Following the evidentiary hearing, the district court denied the

motion to suppress.      Among other things, the court found that the
                                           9

totality of the circumstances established reasonable suspicion for law

enforcement to detain Saccento and Pardee for the dog sniff at the

conclusion of the traffic stop, and that Trooper Baker and his dog were

“well trained” and “reliable” such that Nellie’s alert justified subsequent

search of the vehicle. 3

       On August 29, 2013, following a stipulated bench trial on the

minutes of testimony, Pardee was acquitted of marijuana possession.

The district court determined the facts failed to establish beyond a

reasonable doubt that Pardee possessed the marijuana found in the

vehicle. The court noted the absence of evidence that the marijuana was

“among or near Pardee’s personal belongings,” noted the marijuana was

not found in plain view, and noted that Pardee did not own the vehicle.

       Meanwhile, Pardee had answered the forfeiture complaint and

alleged he was the owner of the $33,100 cash. Pardee also filed a motion

to suppress in the forfeiture case, asserting the same grounds as in the

criminal case and arguing the money had been seized in violation of his

rights under the Fourth Amendment to the United States Constitution

and article I, section 8 of the Iowa Constitution. The State responded

that the motion to suppress was barred by claim preclusion based on the

prior ruling in the criminal case. Pardee disputed that contention. The

district court, however, agreed with the State that the motion was barred

by “res judicata and claim preclusion” and overruled Pardee’s motion. 4


       3The  court also denied Pardee’s motion to enlarge findings of fact and
conclusions of law, which reasserted Pardee’s contentions that the initial traffic stop
was unconstitutional and that law enforcement unreasonably and unconstitutionally
extended the duration of the stop.
       4In   support of the equal protection prong of his motion, Pardee offered evidence
that once Trooper Vander Weil joined the interdiction team, 1902 or ninety-two percent
of his citations and warnings were written to out-of-state plated vehicles. Although this
evidence had not been previously presented in the criminal case, the district court
                                         10

       On September 17, the forfeiture proceeding went to trial. At the

outset, Pardee asked the district court to reconsider its ruling on the

motion to suppress. The court declined to do so.

       The State then called a Nebraska State Trooper as a witness. The

Nebraska trooper testified to interviewing Pardee after he had been

arrested in Nebraska on January 21, 2013, approximately seven months

after the Iowa stop at issue in this case. In the course of the lengthy

Nebraska interview, Pardee had admitted to being involved in marijuana

trafficking between Arizona and California and the east coast since 2011.

Pardee said in the interview that the $33,100 had been taken from him

when he was stopped by Trooper Vander Weil in June 2012, that the

cash represented proceeds from the sale of marijuana in New York, and

that he had falsely told the Iowa authorities at the time the cash

represented proceeds from the sale of one or two pickups. DVDs of the

Nebraska interview were also introduced into evidence.                 Additionally,

Trooper Vander Weil testified, along with an Iowa Division of Narcotics

Enforcement agent who interviewed Pardee in June 2012.

       At the conclusion of the forfeiture trial, Pardee once again asserted

his motion to suppress.        The district court denied the motion for the

reasons previously stated. It also found the cash seized by the State on

June 13, 2012, was subject to forfeiture as proceeds of a criminal

offense. See Iowa Code §§ 809A.3(2), .4(3).

       Pardee appealed the forfeiture decree, arguing his motion to

suppress should have been granted. We transferred the case to the court

of appeals. In a thorough opinion, the court of appeals explained why

___________________________________
concluded it would have been available earlier and, in any event, did not establish an
equal protection violation.
                                     11

neither claim preclusion nor issue preclusion justified denial of Pardee’s

motion to suppress.    Yet it nonetheless affirmed the forfeiture, finding

(1) Iowa law allows law enforcement to make pretextual stops based on

traffic violations to further an investigative purpose, (2) such stops do not

violate an out-of-stater’s right to interstate travel, (3) Trooper Vander

Weil’s questioning did not impermissibly extend the duration of the

traffic stop and by the conclusion of the stop he had reasonable

suspicion to detain the occupants in order to perform the dog sniff, and

(4) the canine unit was shown to be reliable.

      We granted Pardee’s application for further review.

      II. Standard of Review.

      We review the district court’s denial of a motion to suppress based

on the deprivation of a constitutional right de novo. State v. Tyler, 867

N.W.2d 136, 152 (Iowa 2015).         In our review, we must make “an

independent evaluation of the totality of the circumstances as shown by

the entire record.”   Id. (quoting State v. Palmer, 791 N.W.2d 840, 844

(Iowa 2010)). “We give deference to the district court’s fact findings due

to its opportunity to assess the credibility of witnesses, but we are not

bound by those findings.” Id. (quoting Palmer, 791 N.W.2d at 844).

      III. Issue Preclusion.

      The first issue we must resolve is whether the district court’s

denial of Pardee’s motion to suppress in the criminal case has preclusive

effect in this case. We agree with the court of appeals’ comprehensive

discussion of this issue, which concludes there is no preclusive effect.

For present purposes we need to focus on issue preclusion—not claim

preclusion. Whether evidence should be admitted or not is an issue, not

a claim.
                                           12

       Issue preclusion does not apply here because Pardee was acquitted

in the criminal case. Hence, the trial court’s determination of the motion

to suppress against Pardee was not necessary to the final judgment. See

George v. D.W. Zinser Co., 762 N.W.2d 865, 868 (Iowa 2009) (stating for

issue preclusion to apply, “the determination made of the issue in the

prior action must have been necessary and essential to the resulting

judgment”); Restatement (Second) of Judgments § 27 cmt. h, at 258 (Am.

Law. Inst. 1982) (requiring that the prior determination be “essential to”

the final judgment and noting that where the judgment is “not

dependent” upon the determination, the determination does not have

issue preclusive effect); cf. Property v. State, No. 06–11–00113–CV, 2012

WL 1940805, at *4 (Tex. Ct. App. May 22, 2012) (finding that the denial

of a motion to suppress in a criminal case had collateral estoppel effect

where “[t]he trial court’s determination that the fruits of Cruson’s search

were not subject to suppression was necessary to the prior criminal

[conviction]”). 5

       IV. Merits of the Suppression Motion.

       On the merits, as noted above, Pardee made a number of

challenges to the suppression ruling, all of which were rejected by the
court of appeals. On further review, we only need to reach one of those

arguments.      We conclude that regardless of whether the initial vehicle

stop was valid or not, Trooper Vander Weil’s detention of the vehicle

occupants for approximately twenty-five minutes preceding the dog sniff

       5We   also find that Pardee raised a sufficient challenge to the trial court’s res
judicata ruling for purposes of this appeal. Pardee’s principal brief correctly points out
that the district court’s ruling must have been based on issue preclusion, not claim
preclusion, but that issue preclusion does not apply here because “[t]he Suppression
Ruling was not necessary nor essential to the judgment.” Pardee also cites pertinent
authority in support of his argument. Notably, the State does not respond to these
points or attempt to defend the district court’s res judicata ruling on the merits.
                                            13

was improper under the Fourth Amendment to the United States

Constitution. Applying recent United States Supreme Court precedent,

we find that Trooper Vander Weil developed reasonable suspicion of other

criminal activity—if at all—only by prolonging the initial stop beyond the

time reasonably necessary to execute the traffic violation warnings. In

doing so, he violated Pardee’s federal constitutional rights. 6

       Our point of departure is the recent decision of the United States

Supreme Court in Rodriguez v. United States, 575 U.S. ___, 135 S. Ct.

1609, 191 L. Ed. 2d 492 (2015). That case, like this one, involved a dog

sniff following a traffic stop. Id. at ___, 135 S. Ct. at 1612, 191 L. Ed. 2d

at 496. There, a police officer had pulled over the defendant’s car for a

traffic violation upon observing the vehicle temporarily veer onto the

shoulder of the highway. Id. After running a records check on both the

driver and the lone passenger, and writing a warning for the driver, the

officer asked for permission to walk his dog around the vehicle. Id. at

___, 135 S. Ct. at 1613, 191 L. Ed. 2d at 497.                     The driver refused,

whereupon the officer detained the vehicle’s occupants for another five

minutes until a deputy sheriff arrived. Id. At that point, the officer led

the dog twice around the car and the dog alerted to the presence of drugs

on the second pass. Id. Although both the district court and the court of

appeals upheld the dog sniff under the Fourth Amendment, the Supreme

Court found that Rodriguez’s motion to suppress should have been

granted because law enforcement had unconstitutionally prolonged the

traffic stop. Id. at ___, 135 S. Ct. at 1613–14, 1616–17, 191 L. Ed. 2d

497–98, 500–01.

       6We    do not need to reach Pardee’s challenge to the duration of the stop based on
article I, section 8 of the Iowa Constitution, or any of his other claims based on article I,
section 8.
                                    14

      In Rodriguez, the total delay between issuance of the written

warning and the dog alert on the vehicle was approximately seven to

eight minutes. Id. at ___, 135 S. Ct. at 1613, 191 L. Ed. 2d at 497. The

district court found that the officer did not have individualized suspicion

of criminal activity prior to the dog sniff, and for purposes of appeal, the

Eighth Circuit assumed this to be the case. See id. at ___, 135 S. Ct.

1613–14, 191 L. Ed. 2d 497–98.        Yet the Eighth Circuit nonetheless

upheld the dog sniff and subsequent search of the vehicle, reasoning that

a “seven- or eight-minute delay” for investigative purposes was an

“acceptable ‘de minimis intrusion on Rodriguez’s personal liberty.’ ” Id. at

___, 135 S. Ct. at 1614, 191 L. Ed. 2d at 498 (quoting United States v.

Rodriguez, 741 F.3d 905, 907 (8th Cir. 2014)).

      In a 6–3 decision, the Supreme Court reversed.        Id. at ___, 135

S. Ct. at 1612, 1617, 191 L. Ed. 2d at 496, 501. As the Court explained,

setting forth what appears to be a bright-line rule, “Authority for the

seizure . . . ends when tasks tied to the traffic infraction are—or

reasonably should have been—completed.” Id. at ___, 135 S. Ct. at 1614,

191 L. Ed. 2d at 498. “Because addressing the infraction is the purpose

of the stop, it may ‘last no longer than is necessary to effectuate th[at]

purpose.’ ” Id. (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct.

1319, 1325, 75 L. Ed. 2d 229, 238 (1983)).              The officer’s drug

investigation added seven to eight minutes to Rodriguez’s detention,

rendering it unconstitutional unless the government had reasonable

suspicion of criminal activity apart from the traffic violation. Id. at ___,

135 S. Ct. at 1613, 1616–17, 191 L. Ed. 2d at 497, 500–01.

      The Rodriguez Court referred to and factually distinguished a prior

case upholding a dog sniff that had occurred while the state trooper was

in the process of writing a warning ticket. See id. at ___, 135 S. Ct. at
                                             15

1614–15, 191 L. Ed. 2d at 498–99 (discussing Illinois v. Caballes, 543

U.S. 405, 406, 408, 125 S. Ct. 834, 836, 837, 160 L. Ed. 2d 842, 846,

847 (2005)).           Yet it reaffirmed “the line drawn in that decision” that a

traffic stop “ ‘become[s] unlawful if it is prolonged beyond the time

reasonably required to complete th[e] mission’ of issuing a warning

ticket.” Id. at ___, 135 S. Ct. at 1612, 1614–15, 191 L. Ed. 2d 496, 499

(quoting Caballes, 543 U.S. at 407, 125 S. Ct. at 837, 160 L. Ed. 2d at

846). 7     Thus, in Rodriguez, the Court confirmed that an officer “may

conduct certain unrelated checks during an otherwise lawful traffic stop”

but “may not do so in a way that prolongs the stop, absent the

reasonable suspicion ordinarily demanded to justify detaining an

individual.” Id. at ___, 135 S. Ct. at 1615, 191 L. Ed. 2d at 499.

          Unrelated checks, the Court explained in Rodriguez, are matters

that do not “serve the same objective as enforcement of the traffic code:

ensuring that vehicles on the road are operated safely and responsibly.”

Id.   A dog sniff, unlike matters such as “checking the driver’s license,

determining whether there are outstanding warrants against the driver,

and inspecting the automobile’s registration and proof of insurance,” can

only be undertaken without individualized suspicion if it does not

prolong the traffic stop. Id. at ___, 135 S. Ct. at 1615, 1616, 191 L. Ed.

2d at 499, 501. The Court added that “[t]he critical question . . . is not

whether the dog sniff occurs before or after the officer issues a ticket . . .

but whether conducting the sniff ‘prolongs’—i.e., adds time to—‘the

                   the Court found support for its ruling in Arizona v. Johnson, 555 U.S.
          7Likewise,

323, 326, 129 S. Ct. 781, 784, 172 L. Ed. 2d 694, 700 (2009), dealing with a challenge
to a stop and frisk of passengers in a vehicle. The Court upheld the frisk but cautioned:
“An officer’s inquiries into matters unrelated to the justification for the traffic 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.” Johnson, 555 U.S.
at 333, 129 S. Ct. at 788, 172 L. Ed. 2d at 704.
                                         16

stop.’ ” Id. at ___, 135 S. Ct. at 1616, 191 L. Ed. 2d at 501. “If an officer

can complete traffic-based inquiries expeditiously, then that is the

amount of ‘time reasonably required to complete [the stop’s] mission.’ ”

Id. at ___, 135 S. Ct. at 1616, 191 L. Ed. 2d at 500 (quoting Caballes,

543 U.S. at 407, 125 S. Ct. at 837, 160 L. Ed. 2d at 846). 8

       Pardee argues that Rodriguez controls here and that Trooper

Vander Weil violated his constitutional rights by using what should have

been a quick traffic stop to conduct extensive investigative questioning

and then a dog sniff while detaining the vehicle occupants for

approximately twenty-five minutes. The State responds that this case is

distinguishable from Rodriguez because reasonable suspicion of criminal

activity existed as soon as Trooper Vander Weil walked up to the Toyota

and assessed the situation. During the ensuing twenty-five minutes, in

the State’s view, Trooper Vander Weil’s already justifiable suspicion was

enhanced as he learned more about the occupants and their alleged

travel plans.

       The State points to the various factors cited by the district court in

its order denying Pardee’s motion to suppress in the criminal case: the

California license plates, Saccento’s behavior before Trooper Vander Weil

pulled over the vehicle, the nervousness of Saccento and Pardee after

Trooper Vander Weil stopped the vehicle, the lived-in look of the vehicle,

the presence of a can of air freshener and the strong odor of air

freshener, the criminal histories of Saccento and Pardee, and finally their

curious and somewhat inconsistent travel plans. The latter two items, of

       8The   Court added that the officer may “take certain negligibly burdensome
precautions in order to complete his mission safely.” Rodriguez, 575 U.S. at ___, 135
S. Ct. at 1616, 191 L. Ed. 2d at 500. But again, it distinguished this officer safety
interest “from the Government’s endeavor to detect crime in general or drug trafficking
in particular.” Id.
                                     17

course, were developed only after the Toyota had been pulled over and

Trooper Vander Weil undertook his investigation.

      In weighing the parties’ respective positions, comparisons to other

cases are useful. We consider first, United States v. Briasco, 640 F.3d

857 (8th Cir. 2011), cited by the court of appeals below.          There the

Eighth Circuit upheld a trooper’s decision to further detain a motorist for

a vehicle dog sniff after writing a warning ticket for a speeding violation.

Briasco, 640 F.3d at 860. In finding that reasonable suspicion existed,

the court took note of

      the strong odor of air freshener in the car, the sagging or
      squatting of the back end of the vehicle, Briasco’s increasing
      nervousness shown by the developing dryness in his mouth
      and visible carotid artery, Briasco’s imprecise description of
      his travel plans, and his failure to disclose the full facts
      about his criminal history.

Id. at 859–60.

      This   case   shares   some    characteristics   of   Briasco   but   is

distinguishable in other respects. On the whole, one can fairly say the

grounds for suspecting Saccento and Pardee of other criminal activity

before they were detained for the dog sniff were not that strong. That

probably explains why Trooper Vander Weil said they were free to go.

More importantly, it appears the most significant ground for suspecting

Saccento and Pardee of criminal activity had to be the information they

provided on their travel plans during the vehicle stop.          We are not

persuaded that the knowledge Trooper Vander Weil possessed at the

beginning of the stop—the California plates, the slowing down to sixty-

five miles per hour, the failure to make eye contact with the trooper, the

oversight of leaving the right signal light on after pulling over, the initial

nervousness, the lived-in look of the vehicle, or the air freshener—

provided reasonable suspicion alone or in combination.          Much of the
                                   18

conduct observed here would be typical of any motorist who is

approached and then pulled over by state law enforcement.           Many

motorists slow down, decline to make eye contact, and get nervous when

a state trooper draws near. See United States v. Guerrero, 374 F.3d 584,

590 (8th Cir. 2004) (noting that nervousness during a traffic stop is of

“limited significance”).

      Briasco can be contrasted with the Eighth Circuit’s decision in

United States v. Beck, 140 F.3d 1129 (8th Cir. 1998). In that case, the

Eighth Circuit considered whether seven factors gave rise to reasonable

suspicion warranting a renewed detention following the issuance of a

warning for a traffic violation. Id. at 1136, 1140. Those factors were:

(1) an absent third party had rented the car driven by the defendant,

(2) the car had a California license plate, (3) fast food trash was on the

floor of the car, (4) there was no visible luggage in the car, (5) the

defendant driver had a nervous demeanor, (6) the trip was being made

“from a drug source state to a drug demand state,” and (7) the officer

disbelieved the driver’s explanation for the trip. Id. at 1137. The court

found those factors did not provide a basis for an ongoing detention. Id.

at 1137–39.

      The lived-in look of Saccento and Pardee’s vehicle, to judge by the

photographs that are in the record, was unremarkable given the

occupants were clearly on a cross-country trip. There were water bottles,

an energy drink, a metal coffee cup, chips and dip, apples and bananas,

a trash bag with some trash, a sleeping bag draped on the rear seat, and

a guitar case.   Many vehicles are more lived-in than that.     The video

recordings of the stop also tend to dispel any impression that the

occupants were unusually apprehensive (until the narcotics sniffing dog

was called in around 10 a.m.). While the strong odor of air freshener was
                                   19

certainly a relevant consideration, alone it would not support detention

of the occupants beyond the time required for the traffic stop.       See

Frazier v. State, 236 P.3d 295, 301 (Wyo. 2010) (“The presence of odor

suppressing agents, alone, does not give rise to reasonable suspicion, but

can be a factor contributing to the totality of the circumstances.”); cf.

Commonwealth v. Kemp, 961 A.2d 1247, 1254 (Pa. Super. Ct. 2008)

(finding reasonable suspicion when scent of air fresheners was

“overpowering,” trooper still detected the odor of marijuana, driver acted

extremely nervous, and vehicle belonged to absent third party). In short,

we cannot find that Trooper Vander Weil had developed individualized

suspicion of criminal activity at the outset of the stop when he first

encountered Saccento and Pardee in person.

      If we conclude, as we must, that reasonable suspicion could

potentially exist only if one weaves in the verbal answers given by

Saccento and Pardee regarding their travel plans and their respective

criminal histories, we then need to decide whether that information was

obtained only because Trooper Vander Weil prolonged the stop beyond

what was reasonably necessary to carry out his traffic-related mission.

See Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1616, 191 L. Ed. 2d at 500.

In United States v. Evans, 786 F.3d 779 (9th Cir. 2015), the Ninth Circuit

performed this kind of post-Rodriguez inquiry. In that case, a sheriff’s

deputy had pulled over a car at 7:09 p.m. for traffic violations on

Interstate 80 with the plan of furthering a drug investigation.    Evans,

786 F.3d at 781–82. At 7:28 p.m., nineteen minutes later, the deputy

gave the driver a warning and told him he was “good to go.” Id. at 783.

However, the deputy then asked the driver if he had any contraband in

the car, mentioning marijuana, cocaine, methamphetamine, and heroin.

Id. When the driver denied the presence of contraband but refused to
                                           20

consent to a search, the deputy performed a dog sniff. Id. at 783–84.

The canine alerted at 7:33 p.m., twenty-four minutes after the stop

began. Id. at 784.

       The Ninth Circuit concluded that the deputy had prolonged the

stop beyond what was reasonably necessary to perform his traffic-related

mission, specifically noting that the deputy had called in an ex-felon

registration check at 7:20 p.m., that the check took eight minutes, that

the check was not related to the traffic grounds for the stop, and that the

deputy used the time to question the defendant and see if there were

inconsistencies in his story. Id. at 786–87. The Ninth Circuit therefore

found that the stop was invalid under Rodriguez unless the deputy’s

“prolongation     of   the   traffic     stop   was   supported     by independent

reasonable suspicion.” 9 Id. at 789.

       Similarly, in People v. Pulling, the Illinois Appellate Court applied

Rodriguez to uphold the granting of a motion to suppress after finding

that a trooper “unlawfully prolonged the duration of the stop when he

interrupted his traffic citation preparation to conduct a free-air sniff

based on an unparticularized suspicion of criminal activity.” 34 N.E.3d

1198, 1201 (Ill. App. Ct. 2015). There, the trooper initiated a traffic stop
for speeding. Id. at 1199. According to the trooper, writing a speeding

ticket generally only took between three or five minutes, although the

required time would have been longer because it turned out the driver

had a suspended license.           Id.    The trooper admitted that about four

minutes into the stop, he had all the information necessary to prepare

both citations. Id. at 1201. Yet he stopped writing the citations, and

       9On   remand, the district court found that individualized suspicion did not exist
to justify the deputy’s prolongation of the stop beyond 7:20 p.m. See United States v.
Evans, ___ F. Supp. ___, ___, 2015 WL 4711148, at *2, *9–10 (D. Nev. August 7, 2015).
                                         21

instead conducted further questioning, which detected inconsistencies,

before performing a free-air sniff.           Id.   Even though the entire stop

consumed only fifteen minutes, the court found the unrelated activity

had prolonged it, and the results of the dog sniff therefore had to be

suppressed. Id. at 1202.

       And even in a pre-Rodriguez case, the Eighth Circuit concluded

that a trooper unlawfully extended a traffic stop when the “off-topic

questions more than doubled the time Peralez was detained.”                   United

States v. Peralez, 526 F.3d 1115, 1121 (8th Cir. 2008).                        There

approximately sixteen minutes elapsed between the initial pullover of the

vehicle and the dog sniff. Id. at 1119. Three minutes into the stop, the

trooper had told the driver he would receive a warning ticket for the

obstructed license plate. Id. But during the next thirteen minutes, the

trooper engaged in “a ‘blended process,’ interspersing drug interdiction

questions with the routine processing of a traffic stop.” Id. at 1119–20.

The trooper admitted that the “blending” prolonged the stop. Id. at 1120.

       This case involves a similar blending.             At 9:33 a.m., Trooper

Vander Weil had all the information he needed to prepare warnings and

had told the vehicle occupants he was only going to issue warnings. By

Vander Weil’s admission, he could have gone back to his patrol car at

that point and completed his traffic-related mission without Saccento’s

or Pardee’s involvement except for a signature on the warning citations.

Instead, he asked Saccento to come with him.                 He then questioned

Saccento for five minutes in his car before calling in the information for a

warrants check and a criminal background check at 9:38 a.m. 10                   The


       10Trooper Vander Weil admitted the criminal history check had nothing to do
with processing the traffic violations and was part of his interdiction investigation.
                                       22

response to the warrants check came back at 9:42 a.m. From 9:43 to

9:44 a.m., it appeared that Trooper Vander Weil was in the process of

preparing the warnings because he asked Saccento to confirm the year of

the Toyota. At 9:50 a.m., the warnings were complete and printed out.

At this point, Trooper Vander Weil left Saccento in the vehicle,

approached Pardee, and conducted separate investigative questioning of

him for three minutes.       Then, at 9:55 a.m., twenty-five minutes after

pulling the vehicle over, the trooper returned to the vehicle and told

Saccento he was free to go. Given all this, and Trooper Vander Weil’s

admission that the entire stop would have taken only about ten to twelve

minutes if he had been focused on issuing the warnings, the stop was

clearly prolonged within the meaning of Rodriguez. See 575 U.S. at ___,

135 S. Ct. at 1612–13, 191 L. Ed. 2d at 496–97 (holding that a traffic

stop prolonged approximately seven to eight minutes beyond the time

reasonably required to complete the mission of the stop was unlawful).

In fact, based on our review of the videos, we think the ten-to-twelve-

minute estimate overstates the amount of time a simple traffic stop

would have required. 11

      We must then ask whether individualized suspicion to justify a dog
sniff would have existed without this delay. See id. at ___, 135 S. Ct. at

1616–17, 191 L. Ed. 2d at 501 (remanding for consideration of whether

reasonable suspicion supported detaining defendant                beyond time

required to complete traffic stop). We find that it would not have existed.

As we have already noted, the information Trooper Vander Weil had at

the outset of the stop did not support more than a detention to process


      11In    the course of cross-examination, Trooper Vander Weil also admitted
testifying in a prior case that it takes about five minutes to fill out a warning.
                                      23

the traffic violations.   And in his early questioning, all that Trooper

Vander Weil had been told was that Saccento with the help of his

companion was moving home from California to New Jersey in multiple

trips. No inconsistencies—even minor ones—had been developed in the

occupants’ story.      While Saccento’s stated plan to move home from

California to New Jersey in multiple trips may not have been “cost-

effective,” as Trooper Vander Weil later testified, we cannot say this

factor, even when added into the considerations the trooper was aware of

when he made the stop, amounted to reasonable suspicion of drug

trafficking. See Beck, 140 F.3d at 1139 (holding that an officer’s disbelief

of a driver’s explanation for traveling even when coupled with other

factors was not enough to give rise to reasonable suspicion).

      The State urges that Saccento’s and Pardee’s criminal histories—

which apparently disclosed that each had at least a prior drug-related

arrest—also enter into the reasonable suspicion calculus. It is not clear

when Trooper Vander Weil received these histories via email but we find

it would not have been earlier than 9:44 a.m. That is when dispatch,

having provided the answer to the warrants check at 9:42 a.m., was

asking the trooper whether Saccento and Pardee were both white. This

occurred over ten minutes into the stop.

      On our independent review of the record, we are convinced that a

stop in this case directed only at the traffic-related mission—i.e.,

checking    driver’s    license,   vehicle   registration,   insurance,   and

outstanding warrants, and preparing warnings—would have taken no

more than ten minutes. At that point, i.e., at approximately 9:41 a.m.,

Trooper Vander Weil did not have Saccento’s and Pardee’s criminal

histories partly because he did not even try to obtain this information

until 9:38 a.m., after he had already been questioning Saccento for five
                                   24

minutes in his patrol car. Thus, even if the criminal histories might have

tipped the balance on reasonable suspicion, an issue we are not

deciding, they were not obtained until the stop had already been

prolonged past its permissible length in violation of Rodriguez and the

Fourth Amendment.

      V. Conclusion.

      For the foregoing reasons, we reverse the denial of Pardee’s motion

to suppress and remand for further proceedings in accordance with this

opinion.

      DECISION OF THE COURT OF APPEALS VACATED, DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.

      All justices concur except Wiggins, J., who concurs specially, and

Cady, C.J., and Zager, J., who dissent.
                                    25

                              #14–0029, In re Property Seized from Pardee

WIGGINS, Justice (concurring specially).

      I concur with the majority that the stop violates the Fourth

Amendment to the United States Constitution.         However, I would go

further and find a pretextual stop violates article I, section 8 of the Iowa

Constitution.
                                      26
                                #14–0029, In re Property Seized from Pardee

CADY, Chief Justice (dissenting).
      I respectfully dissent.    The holding in Rodriguez v. United States

resolved a division among lower courts on the question of whether police

may routinely extend an otherwise completed traffic stop absent

reasonable suspicion in order to conduct a dog-sniff search. 575 U.S.

___, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015). The answer is clearly no.

However, the issue the Supreme Court did not reach in Rodriguez was

whether reasonable suspicion of criminal activity unrelated to the

purpose of the traffic stop justified the detention of the defendant beyond

the time needed to complete the traffic stop.      Id. at ___, 135 S. Ct. at

1616–17, 191 L. Ed. 2d at 501. After a careful review of the record, I

would conclude the officer acquired reasonable suspicion of criminal

activity unrelated to the purpose of the traffic stop. Therefore, the officer

was permitted to extend the detention of the defendant beyond the time

needed to process the traffic citations to confirm his suspicions.

      I agree an officer cannot normally pursue unrelated inquiries

during a traffic stop except those normally incidental to the stop.

However, a traffic stop can be reasonably extended to check out

reasonable suspicion of unrelated criminal activity.          See State v.

Aderholdt, 545 N.W.2d 559, 564 (Iowa 1996) (holding suspicious

responses and actions permitted the officer’s inquiry to be broadened,

and defendants’ detention while a drug dog and tow truck were

summoned did not exceed the reasonable scope of the stop). Here, three

factors were present to provide reasonable suspicion to extend the stop.

First, the officer observed overt physical signs of nervousness of the

occupants of the vehicle.       Second, the interior of the vehicle smelled

strongly of a specific air freshener known by the trooper to be frequently
                                           27

used to mask the scent of marijuana. 12 A can of this air freshener was

visible through the window of the vehicle. 13 Finally, the condition of the

interior of the vehicle indicated the occupants were traveling hard.

       These three pieces of information combined to give the officer

reasonable suspicion that drugs could be located in the vehicle.                    This

reasonable suspicion entitled the officer to extend the time to complete

the stop. It entitled the officer to ask questions specifically related to the

suspicion of drug activity in conjunction with questions related to the

traffic stop.     The inconsistent answers to the additional questions

generated even greater suspicion of unrelated criminal activity and

ultimately justified the request for a drug dog.                   Furthermore, the

additional time for the drug dog to arrive did not unreasonably extend

the time of the stop. The dog arrived at the scene of the stop within five

minutes from the time the request was made.



       12We   have long established that the odor of marijuana alone can give an officer
probable cause to search the vehicle. State v. Eubanks, 355 N.W.2d 57, 59 (Iowa 1984);
see State v. Watts, 801 N.W.2d 845, 854 (Iowa 2011) (“[A] trained officer’s detection of a
sufficiently distinctive odor, by itself or when accompanied by other facts, may establish
probable cause.”); State v. Moriarty, 566 N.W.2d 866, 869 (Iowa 1997) (combining the
scent of burnt marijuana with the presence of an unused alligator clip and the officer’s
experience to create probable cause); State v. Predka, 555 N.W.2d 202, 207 (Iowa 1996)
(finding the odor of marijuana, the driver’s nervous state, and officer’s observation of a
screen and small plastic bags provided probable cause to search the vehicle); State v.
Merrill, 538 N.W.2d 300, 301–02 (Iowa 1995) (finding sufficient grounds to search the
passenger of a vehicle based on the smell of burnt marijuana and the passenger’s
furtive movements).
       13The   combination of the presence of the can of air freshener on the front
floorboard and the strong odor of that air freshener coming out the window of the
vehicle could imply that the air freshener was sprayed from the can as a response to the
flashing lights signaling the trooper’s request that the vehicle pull over. This is not a
case of an air freshener hanging from the rearview mirror, but instead implicates a
deliberate action taken by those in the vehicle to cover up a particular odor. While not
sufficient to establish probable cause to search on its own, it is distinct enough
behavior that it could allow an experienced officer to form a reasonable suspicion when
combined with the other suspicious behaviors.
                                    28

      The time necessary for an officer to process a traffic stop does not

require a stopwatch. The officer is entitled to detain a driver long enough

to issue the citation or warning and to check out the ordinary incidental

aspects of a traffic stop, such as a drivers’ license check, outstanding-

warrant check, and proof of insurance and registration. Rodriguez, 575

U.S. at ___, 135 S. Ct. at 1614–15, 191 L. Ed. 2d at 498–99. If, in the

process of these activities, reasonable suspicion of unrelated criminal

activity is observed, the detention is extended a reasonable time to check

out the suspicion.    See State v. Bergmann, 633 N.W.2d 328, 335–38

(Iowa 2001) (“When the purpose for the initial stop has concluded, in

order to expand the scope further, reasonable suspicion of criminal

wrongdoing must be present.”); see also Rodriguez, 575 U.S. at ___, 135

S. Ct. at 1615, 191 L. Ed. 2d at 499 (prohibiting stop extension only

“absent   the   reasonable   suspicion   ordinarily   demanded   to   justify

detaining an individual”).   This is what occurred in this case, and the

rights under the Search and Seizure Clause were not violated.

      Finally, reasonable suspicion clearly existed in this case to support

extending the stop.    The standard of reasonable suspicion was not

intended to handcuff police officers in the investigation of criminal

activity. Furthermore, our constitution does not expect police to check

their commonsense and good judgment at the door in deciding to pursue

a criminal investigation. This case, however, holds otherwise. The result

is illogical. An odor known to be marijuana emanating from a vehicle

provides probable cause to search under our law, State v. Eubanks, 355

N.W.2d 57, 59 (Iowa 1984), but the strong odor of an air freshener

known by the officer to be an agent used to mask the odor of marijuana

does not even provide reasonable suspicion to investigate. Regrettably,

the majority fails to identify what more the officer in this case, and
                                       29

officers in the future, would need to acquire the reasonable suspicion

necessary to pursue further investigation.

      Zager, J., joins this dissent.