Consent-to-Search Traffic Stops: Removing and Frisking a Passenger Based on Totality-of-Circumstances Safety Concerns

I. Introduction

In United States v. Marshall (10th Cir. Aug. 26, 2026) (unpublished “Order and Judgment”), the Tenth Circuit affirmed the denial of a motion to suppress a firearm found during a traffic stop. The stop began as a routine lane-violation stop in Sapulpa, Oklahoma. The driver, Roxanne Willson, consented to a vehicle search and asked the officer to remove the passenger, Kedrick Shane Marshall, before the search occurred. When Marshall exited, the officer frisked him and discovered a gun in his back pocket.

The appeal presented two Fourth Amendment questions: (1) whether the stop was impermissibly prolonged (especially as to the passenger) once the officer pursued a consent search, and (2) whether the officer had reasonable suspicion that Marshall was armed and dangerous sufficient to justify a Terry frisk.

II. Summary of the Opinion

The court held that the detention and frisk were reasonable under the Fourth Amendment and affirmed Marshall’s conviction. Key conclusions:

  • No reversible clear-error factual findings: even though the district court initially referenced the officer’s “training” about heroin odor, it corrected that point on reconsideration to rely only on “experience,” which Marshall did not challenge on appeal.
  • No unconstitutional prolongation: the driver’s consent to search was obtained during the routine mission of the traffic stop, and the officer had a sufficient basis—viewed under the proper deferential lens—to continue detaining Marshall.
  • Frisk upheld: considering the totality of circumstances (late night, officer safety during an impending vehicle search requiring the officer to turn his back, criminal histories, alleged gang affiliation, odor associated with heroin, driver nervousness, and the driver’s request to remove Marshall), the officer had reasonable suspicion that Marshall was armed and dangerous.

Although the disposition is nonprecedential, it synthesizes and applies controlling Fourth Amendment doctrine in the consent-search setting.

III. Analysis

A. Precedents Cited

1. Traffic-stop scope, duration, and reasonable suspicion

  • Rodriguez v. United States, 575 U.S. 348 (2015): The court invoked Rodriguez for the core rule that a traffic stop “may last no longer than is necessary” to address the traffic infraction and complete “ordinary inquiries incident to” the stop. The opinion then assessed whether the officer’s actions fit within the mission or were supported by consent or reasonable suspicion.
  • Florida v. Royer, 460 U.S. 491 (1983) (plurality opinion): Quoted via Rodriguez for the general duration-limiting principle for investigative detentions.
  • United States v. Pettit, 785 F.3d 1374 (10th Cir. 2015): Used for two propositions: (i) a traffic stop is a Fourth Amendment seizure subject to reasonableness review, and (ii) continued detention is lawful only if the encounter becomes consensual or if reasonable suspicion of other criminal activity develops during the stop.
  • United States v. Mayville, 955 F.3d 825 (10th Cir. 2020): Reinforced that traffic stops are reviewed for reasonableness.
  • Arizona v. Johnson, 555 U.S. 323 (2009): Critical to the passenger’s status: passengers are seized during traffic stops and may be detained for the stop’s duration; also supplies the frisk standard (reasonable suspicion the person is armed and dangerous).
  • United States v. Winder, 557 F.3d 1129 (10th Cir. 2009): The district court’s framework—adopted by the panel—relied on Winder for the rule that once the initial suspicion is satisfied, the officer must release the driver unless there is a new independent basis (reasonable suspicion) or consent to extend.
  • United States v. Cortez, 449 U.S. 411 (1981): Provided the “totality of the circumstances” and “particularized and objective basis” formulation for reasonable suspicion.
  • United States v. Ulibarri, 149 F.4th 1193 (10th Cir. 2025): Emphasized that reasonable suspicion is “a low bar,” shaping the court’s evaluation of the officer’s observations.
  • United States v. Bradford, 423 F.3d 1149 (10th Cir. 2005): Cited (via Pettit) for the consent-or-reasonable-suspicion principle governing post-mission detention.
  • United States v. Johnson, 364 F.3d 1185 (10th Cir. 2004): Cited (via Pettit) for the proposition that officers may detain on reasonable suspicion even if it is “more likely than not” no illegality occurred.
  • United States v. Kitchell, 653 F.3d 1206 (10th Cir. 2011): Cited (via Pettit) for the allocation of burden on the government to prove the reasonableness of suspicion when prolonging a stop.

2. Frisk doctrine and officer-safety considerations

  • Terry v. Ohio, 392 U.S. 1 (1968): Supplied the foundational frisk principle: the officer need not be certain, only reasonably believe safety is at risk.
  • United States v. Fager, 811 F.3d 381 (10th Cir. 2016): A key Tenth Circuit synthesis cited for (i) officer safety as the primary justification, (ii) the “turn your back” rationale, and (iii) a non-exhaustive list of factors that can support armed-and-dangerous suspicion (time of day, prior encounters, criminal history).
  • United States v. Garcia, 751 F.3d 1139 (10th Cir. 2014): Quoted through Fager to support the idea that limited “specific information” about weapons can still justify a patdown when officer-safety dynamics are present, including the need to turn away from the suspect.
  • United States v. Arvizu, 534 U.S. 266 (2002): Used to reject Marshall’s “divide-and-conquer” approach; courts must consider factors in combination rather than isolating and discounting each.
  • United States v. Gurule, 935 F.3d 878 (10th Cir. 2019): Cited for the proposition that the very fact of a vehicle search creates a need to detain individuals safely—supporting the authority to control occupants during a consent search.
  • United States v. Wald, 216 F.3d 1222 (10th Cir. 2000): Distinguished: in Wald the frisk was invalid because it was aimed at finding drugs rather than weapons; here, the panel credited the officer’s weapon-safety purpose.

3. Appellate standards, clear error, and issue preservation

  • United States v. Johnson, 43 F.4th 1100 (10th Cir. 2022): Provided the standard of review and deference to district-court fact findings.
  • United States v. Campbell, 156 F.4th 1019 (10th Cir. 2025): Framed suppression analysis as Fourth Amendment plus exclusionary rule and reiterated de novo review of legal conclusions.
  • United States v. Young, 99 F.4th 1136 (10th Cir. 2023): Reinforced de novo review of “ultimate reasonableness” and supplied the “view the evidence in the light most favorable” language.
  • United States v. Hernandez, 847 F.3d 1257 (10th Cir. 2017) and United States v. Le, 173 F.3d 1258 (10th Cir. 1999): Supported deference to credibility and weight-of-evidence determinations.
  • United States v. Tafoya, 557 F.3d 1121 (10th Cir. 2009): Defined clear error and emphasized that permissible findings supported by the record must be upheld.
  • United States v. Craine, 995 F.3d 1139 (10th Cir. 2021) and Anderson v. City of Bessemer City, 470 U.S. 564 (1985): Explained that appellate courts do not reweigh evidence; where two views are permissible, the factfinder’s choice controls.
  • United States v. Porter, 66 F.4th 1223 (10th Cir. 2023): Reiterated the “two permissible views” principle in rejecting Marshall’s factual challenge.
  • Adams v. FAA, 168 F.4th 1271 (10th Cir. 2026): Used to treat underdeveloped arguments as waived (here, Marshall’s cursory claim that facts tied to him were insufficient to prolong detention).
  • United States v. Fonseca, 744 F.3d 674 (10th Cir. 2014) and United States v. Long, 176 F.3d 1304 (10th Cir. 1999): Addressed what evidence may be considered (suppression hearing record) and the defendant’s burden to prove illegality.

B. Legal Reasoning

  1. Factual-findings challenges failed under clear-error review. The panel treated the “training” reference as mooted by the district court’s corrected finding on reconsideration (experience, not formal training). On the driver’s “remove him” request, the panel held the district court could permissibly interpret “something on him” as suggesting a weapon, and even if another inference were plausible, appellate reweighing is barred by Anderson v. City of Bessemer City.
  2. The detention was not impermissibly prolonged. Applying Rodriguez v. United States, the court treated license/warrant checks as within the stop’s mission. Importantly, the driver’s consent to search was secured during that routine period, and United States v. Gurule supported the officer’s authority to control occupants to conduct the search safely. The court also credited that the officer developed reasonable suspicion—specifically including that he smelled the chemical odor in closer proximity to Marshall—supporting continued detention.
  3. The frisk was justified by reasonable suspicion Marshall was armed and dangerous. Using Arizona v. Johnson and Terry v. Ohio, the panel assessed the totality under United States v. Arvizu and relied on United States v. Fager and United States v. Garcia to give substantial weight to officer-safety dynamics during a vehicle search at night, including the need to “turn his back.” The court treated the combination of factors—criminal history, gang affiliation, the driver’s nervousness and request to remove Marshall, suspected drug odor, and the nighttime search context—as sufficient for armed-and-dangerous suspicion.

C. Impact

While expressly nonprecedential, United States v. Marshall is likely to be cited for persuasive value in three recurring settings:

  • Consent searches obtained during the traffic mission: it illustrates how consent secured while routine checks are ongoing can support continued on-scene control measures, including ordering a passenger out to execute the search.
  • Officer-safety justifications for patdowns during vehicle searches: the decision reinforces that frisk justification can rest heavily on the operational realities of conducting a search (positioning, turning away, nighttime conditions), not solely on direct weapon intelligence.
  • Appellate posture matters: the waiver ruling (under Adams v. FAA) and the clear-error analysis show how suppression appeals can turn on record framing, argument development, and deference to plausible inferences.

IV. Complex Concepts Simplified

  • “Reasonable suspicion”: a commonsense, evidence-based reason to suspect crime—more than a hunch, less than probable cause. Courts look at all facts together (“totality of the circumstances”), not each fact in isolation.
  • “Impermissibly prolonged” traffic stop: after the traffic mission (ticketing/warnings and ordinary checks) should be done, police generally cannot keep detaining people unless (i) the encounter becomes consensual, or (ii) new reasonable suspicion arises.
  • “Terry frisk” (patdown): a limited outer-clothing search for weapons allowed when an officer reasonably suspects the person is armed and dangerous—focused on safety, not evidence gathering.
  • Clear error review: appellate courts rarely overturn a district judge’s factual findings; if the record supports a plausible reading, the finding stands even if another reading is also plausible.
  • Waiver for inadequate briefing: arguments not meaningfully developed in the opening brief can be treated as forfeited on appeal.

V. Conclusion

United States v. Marshall affirms that when a driver consents to a vehicle search during the ordinary course of a traffic stop, officers may control the scene by removing occupants, and may frisk a passenger when the totality of circumstances supports a reasonable suspicion that the passenger is armed and dangerous—particularly where a search requires the officer to divert attention and physically turn away at night. The opinion also underscores two practical appellate lessons: suppression rulings are insulated by clear-error deference on facts, and underdeveloped appellate arguments risk waiver.