United States v. Newland

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4219

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

versus

KEVIN NEWLAND, a/k/a Kevin Kairo,

Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:05-cr-00458-RDB)

Argued: September 21, 2006 Decided: June 6, 2007

Before WILLIAMS and GREGORY, Circuit Judges, and Thomas E.
JOHNSTON, United States District Judge for the Southern District of
West Virginia, sitting by designation.

Reversed and remanded by unpublished opinion. Judge Johnston wrote
the opinion, in which Judge Williams concurred. Judge Gregory
wrote an opinion concurring in part and dissenting in part.

ARGUED: Gregory Welsh, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellant. Fred Warren Bennett, BENNETT
& BAIR, L.L.P., Greenbelt, Maryland, for Appellee. ON BRIEF: Rod
J. Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellant. Gary E. Bair, BENNETT & BAIR, L.L.P., Greenbelt,
Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
JOHNSTON, District Judge:

The Government appeals the district court’s order granting

Kevin Newland’s motion to suppress evidence seized from a search of

his rental vehicle on September 21, 2005. Based on statements

given to officers and immigration agents on the road side and while

in state custody, Mr. Newland was indicted for falsely and

willfully representing himself to be a citizen of the United

States. On the merits, we reverse the district court’s suppression

order because the trooper who stopped Mr. Newland had reasonable

suspicion to detain him until the canine unit scanned the vehicle.

Once the canine alerted to the presence of narcotics, the officers

had probable cause to search the vehicle.

I.

A.

On September 21, 2005, Maryland State Trooper David McCarthy

(Trooper McCarthy) was conducting drug interdiction on Interstate

95.1 At approximately 11:57 a.m., Trooper McCarthy stopped a white

Ford Taurus with Georgia plates for speeding northbound in Cecil

County, Maryland. He approached the passenger side of the vehicle

and noticed an open cell phone line and several other cell phones

1
Trooper McCarthy is a member of Pro-Active Criminal
Enforcement Team, a state police task force specifically trained to
identify possible drug traffickers on I-95. (J.A. 37.)

2
in the vehicle’s console. Trooper McCarthy asked the driver, the

car’s sole occupant, for his license and registration and directed

him to close the open cell phone. Trooper McCarthy noticed that

the driver’s hands were shaking “uncontrollably” while he gathered

the requested paperwork and that he appeared extremely nervous.

(J.A. 170)

The driver produced a United States Virgin Islands driver’s

license and a rental agreement for the Taurus. When Trooper

McCarthy asked for his current address, the driver stated that he

was living in Washington, D.C. The rental agreement, however,

listed a Maryland address. When Trooper McCarthy asked the driver

why he used a Maryland address to rent the car if he lived in

Washington, D.C., the driver hesitated, and “eventually” said that

it was his girlfriend’s address. (J.A. 170) According to Trooper

McCarthy, the driver’s nervousness persisted.

Trooper McCarthy returned to his vehicle. He examined the

license and immediately suspected that it was fraudulent, but was

unable to verify its authenticity because the Maryland State Police

do not have access to a database that includes the Virgin Islands.

Based on his interaction with the driver, Trooper McCarthy

requested that Trooper Catalano and his canine unit respond to the

scene. He then proceeded to conduct a warrant check in the name of

Kevin Kairo. Approximately two minutes later, the warrant check

was returned negative.

3
 Around the time that Trooper McCarthy was reviewing the

driver’s paperwork, Troopers Connor and Lewis arrived at the scene.

Trooper Connor also thought the license looked suspicious, and

approached the driver, who was still seated in his vehicle. When

Trooper Connor asked the driver about his destination, he informed

the trooper that he was traveling to New York City to play soccer.

Troopers McCarthy and Connor discussed the driver’s statements

and nervous demeanor, and both observed that there was no visible

luggage in the back seat. They also noticed that the rental car

was due to be returned in Maryland in only a few hours despite the

driver’s plans to visit New York City.

Trooper Catalano and his drug detection dog arrived on the

scene shortly after Troopers Connor and Lewis, at approximately

12:08 p.m. The driver was asked to exit the vehicle during the

scan pursuant to standard procedure. At 12:10 p.m., the dog

scanned the exterior of the vehicle and alerted to the presence of

narcotics at the front passenger window. Based on the canine’s

positive alert, the troopers searched the car and discovered

$55,729 in cash inside a nylon bag located on the front passenger

seat. The driver claimed that he owned the bag but did not know

how the money got inside the bag. The canine then conducted a scan

on the cash and alerted to the presence of narcotics.

The driver was taken into custody and brought to the Maryland

State Police barracks to verify his identity. A finger print

4
identification check sent to the Federal Bureau of Investigation

(FBI) failed to produce results. The state police then contacted

the United States Bureau of Immigration and Customs Enforcement

(ICE). Agent Robin Betkey responded and contacted the U.S. Virgin

Islands Police. Agent Betkey’s contact in St. Croix informed her

that there was no valid driver’s license in the name of Kevin Kairo

and the address on the license did not exist in St. Thomas. Agent

Betkey then searched for the driver’s fingerprints in the ICE

database. The ICE database identified the driver as Kevin Newland,

a citizen of Jamaica who was lawfully present in the United States.

The database also revealed that there was an outstanding warrant

for Mr. Newland’s arrest in Maryland for possession of a controlled

substance with intent to distribute.

A subsequent FBI analysis proved that the driver’s license and

U.S. Virgin Island’s birth certificate, which was provided by Mr.

Newland’s wife at the police barracks, were fraudulent. Mr.

Newland was charged with falsely and willfully representing himself

to be a citizen of the United States in violation of 18 U.S.C. §

911.

B.

Mr. Newland filed a motion to suppress the birth certificate,

money seized, and all subsequent statements made to law enforcement

officers after Trooper McCarthy received the negative warrant

check. At the suppression hearing, Trooper McCarthy testified that

5
he detained Mr. Newland because he suspected that the driver’s

license was fake and therefore could not properly execute the

warning ticket without knowledge of the driver’s true identity. He

also testified that he detained Mr. Newland based on the totality

of the circumstances, which included Mr. Newland’s statements and

nervous demeanor during their initial discussion at the road side.

Troopers McCarthy and Connor both testified at the suppression

hearing that the license was an obvious fake and that Mr. Newland’s

detention was therefore reasonable based on the totality of the

circumstances. The district judge questioned both troopers

thoroughly about their reasons for believing the license was

fraudulent. Trooper McCarthy testified that the hologram was faded

and distorted. Trooper Connor testified that the font on the

license was of poor quality and that it was thicker than a standard

license. He also testified that the grey haze behind the lettering

indicated that the license was not authentic.

The district judge closely examined the license based on the

testimony of the troopers. The court also compared the license to

a proffered Maryland license to compare its width and length.

Despite close scrutiny, the district judge did not discern the

abnormalities described by the troopers. The trial judge proceeded

to find that the U.S. Virgin Islands driver’s license was not an

“obvious fake.” [J.A. 138] Based on this finding, the court found

that Trooper McCarthy’s suspicion about the license did not justify

6
the trooper’s decision to detain Mr. Newland once he received the

negative warrant check. The court further found that Trooper

McCarthy needed reasonable suspicion of a serious crime to continue

to detain Mr. Newland beyond the warrant check. The trial court

found that Trooper McCarthy’s testimony failed to articulate such

a suspicion, and granted Mr. Newland’s motion to suppress.

II.

We first address Mr. Newland’s motion to dismiss. On October

31, 2006, Mr. Newland moved to dismiss this appeal because the

Government failed to file a timely Certification of the United

States Attorney in accordance with 18 U.S.C. § 3731. “Section 3731

permits the United States to file an interlocutory appeal from an

adverse suppression ruling (before the defendant has been put in

jeopardy and before the verdict or finding on an indictment or

information) only if it makes that certification to the district

court.” United States v. Dequasie, 373 F.3d 509, 515 (4th Cir.

2004). We have previously expressed our assumption that the

certification must be filed within the same 30-day period for which

the United States must notice an appeal under § 3731. See

DeQuasie, 373 F.3d at 515 n.6; In re Grand Jury Subpoena, 175 F.3d

332, 337 (4th Cir. 1999).

“The certification requirement of Section 3731 operates to

ensure that before the United States interrupts a criminal

7
proceeding (and thereby delays a defendant from obtaining

resolution of the charges against him) by taking an interlocutory

appeal, it has evaluated whether the appeal is warranted.”

Dequasie, 373 F.3d at 515. “The certificate is not a mere

formality; its purpose is to protect the accused from undue delay.”

United States v. Herman, 544 F.2d 701, 794 (5th Cir. 1977). That

purpose is thwarted by the perfunctory filing of the certificate

after the appeal has been docketed and briefed. We have previously

warned the Government that “future failures to timely file will not

be taken lightly.” Hatfield, 365 F.3d at 338. We now have two

additional appeals raising the same issue, this case and United

States v. McNeill, No. 06-4444, which is being decided with this

case. Although there is no assertion that the Government acted in

bad faith or with a dilatory motive, its actions have caused a

significant procedural flaw in this appeal and in McNeill.

We have outlined several factors to determine whether an

appeal should proceed despite the § 3731 irregularity: (1) how

late the certification was filed, (2) the reason for its lateness,

(3) whether the Government engaged in a “conscientious pre-appeal

analysis” and is appealing in good faith, (4) whether the

Government acknowledges the importance of the certification, (5)

prejudice to the defendant, (6) the need for appellate

clarification of novel or complex legal issues, and (7) “whether

8
the appeal should be heard in the interests of justice.” Hatfield,

365 F.3d at 337-38; see also DeQuasie, 373 F.3d at 516.

In short, because the certification requirement is intended to

protect the defendant from undue delay, the most salient factors to

consider must relate to whether the Government’s failure to file

the certification as required caused actual substantial prejudice

to the defendant. See DeQuasie, 373 F.3d at 517 (Courts are not

likely to dismiss an appeal unless the defendant is able to show

“actual substantial prejudice”(quoting United States v. Smith, 263

F.3d 571, 578 (6th Cir. 2001)).

Oral argument was heard on this appeal on September 21, 2006.

The Government did not file the certificate until October 13, 2006,

almost eight months after the Notice of Appeal was filed. This is

a serious delay and a large lapse in professionalism on the part of

the Government. However, in consideration of the McNeill case and

the Government’s articulated position, several factors tilt the

equities of retaining this appeal in the Government’s favor.

As previously stated, there is no suggestion that the

government acted in bad faith or with a dilatory motive. The

suppression hearing below was handled by an Assistant United States

Attorney who left the United States for official duty in Iraq

shortly after his filing the Notice of Appeal in this case. Before

leaving the country, he communicated with the Appellate Section of

the Criminal Division, Department of Justice, and began the process

9
of obtaining the permission of the Solicitor General to pursue this

appeal. An Order was issued by this Court on March 7, 2006,

setting a briefing schedule. As a result, the case was transferred

to Gregory Welsh, the Assistant U. S. Attorney now handling this

appeal. On April 10, 2006, the appeal was authorized by the

Solicitor General.

Section 3731 does not give a deadline by which the government

must file the certification. We have assumed, however, without

deciding, that because it is necessary to the perfection of an

appeal, the government must file the certification within the 30-

day period for appeal of the interlocutory order. See 18 U.S.C. §

3731; DeQuasie, 373 F.3d at 515 n.6; In re Grand Jury Subpoena, 175

F.3d at 337. To give effect to the § 3731 protections and to

remove doubt about when it must be filed, we now hold, in

conjunction with McNeill, that the certification must be filed with

the notice of appeal filed by the Government under § 3731. This

requirement assures that the Government will have determined that

the appeal is warranted under § 3731 before disrupting the trial

process by noticing an appeal. In imposing this requirement, we

join other courts that have imposed a similar requirement. See,

e.g., United States v. Salisbury, 158 F.3d 1204, 1207 (11th Cir.

1998); United States v. Bailey, 136 F.3d 1160, 1163 (7th Cir.

1998).

10
 The U.S. Attorney’s Office did not realize its omission in

this case until October 12, 2006, when the United States Attorney

himself realized that the certification he had signed in McNeill

had been filed in this Court, not the district court as required by

§ 3731. This prompted the U.S. Attorney to check with the

Assistant U.S. Attorney handling this case (a similar interlocutory

appeal) to inquire whether the § 3731 certificate had been properly

filed. The U.S. Attorney learned that a certificate had not been

filed, and directed that a certificate be properly filed in this

case and in McNeill.

This omission went unnoticed not only by the Government, but

also by Mr. Newland, his counsel, and this Court. We question

whether the omission would have ever been noticed had the

Government not filed the certification. However, rather than

ignore an irregularity created by his office, the U. S. Attorney

himself stepped in to address the problem and rightly filed the

certification in both cases. The U.S. Attorney also filed a

declaration as an attachment to the Government’s opposition that

announced a new § 3731 policy for that U. S. Attorney’s office.

Specifically, the U. S. Attorney instituted a new guideline

regarding § 3731 certifications that was circulated to all of his

assistants and each U. S. Attorney in the Fourth Circuit. He

amended the U.S. Attorney practice manual for his office and

requested similar amendments to the manuals issued by the

11
Department of Justice. It is thus clear that the Government

acknowledges the importance of the certification requirement.

Most important, Mr. Newland does not appear to have suffered

actual substantial prejudice from the delayed certification. Mr.

Newland contends that he was prejudiced because at the time of his

arrest he faced additional charges in another jurisdiction and was

delayed in obtaining resolution of those charges. Mr. Newland was

detained for approximately five months on the instant charge before

he was transferred to the other jurisdiction upon the filing of the

notice of appeal in this case. The appeal itself proceeded on time

despite the delayed certification. As no one contends that the

Government is required to file a § 3731 certification before the

notice of appeal, it is difficult to find that Mr. Newland suffered

substantial prejudice. We do not think that a timely certification

would have affected his transfer to a separate jurisdiction.

Here, as in Dequasie, the issues raised on appeal are

significant and will further assist in defining the boundaries

drawn by the Fourth Amendment. Although not every factor

articulated here supports the Government’s position, the interests

of justice weigh in favor of exercising our discretion to hear this

12
appeal.2 Accordingly, we deny Mr. Newland’s motion to dismiss. We

now turn to the merits.

III.

A.

The determination of whether given facts amount to reasonable

suspicion vel non is a legal one, which we review de novo. United

States v. Foreman, 369 F.3d 776, 782 (4th Cir. 2004). We give

deference, however, to the trial court’s factual determinations.

Id. “[A] reviewing court should take care both to review findings

of historical fact only for clear error and to give due weight to

inferences drawn from those facts by resident judges and local law

enforcement officers.” Ornelas v. United States, 517 U.S. 690, 699

(1996).

2
Although the entire Justice Department was certainly on
notice of Hatfield and Dequasie, as a practical matter we realize
that he Government is not an omniscient monolith, and this is
particularly significant when one considers that both Hatfield and
Dequasie involved the same U. S. Attorney’s office in a state other
than Maryland. We note that the U. S. Attorney for the District of
Maryland has requested that the Appellate Section of the Criminal
Division of the Department of Justice make it a policy to ensure
the filing of the § 3731 certification whenever the Solicitor
General approves such an appeal. Whether instituted by the
Solicitor General, the Criminal Division, or each U. S. Attorney,
we strongly encourage the Government to adopt such a policy as soon
as practicable. In the wake of this opinion and McNeill, any
reason offered by the Government for a future failure to file a
timely § 3731 certification will be viewed, at best, with
skepticism.

13
 B.

The Government argues that the trial judge erroneously ruled

that the canine sniff occurred outside the scope of the traffic

stop. The Government also asserts that, based on the totality of

the circumstances, Trooper McCarthy had the requisite suspicion to

detain Mr. Newland until the canine scanned the vehicle.

Mr. Newland contends that the district court correctly

concluded that Trooper McCarthy unreasonably prolonged the traffic

stop in violation of the Fourth Amendment. He concedes that he was

lawfully detained, but asserts that his rights were violated when

he was held for thirteen minutes while Trooper McCarthy followed

his “hunch” that Mr. Newland’s nervousness and conflicting answers

signaled that criminal activity was afoot. Terry v. Ohio, 392 U.S.

1, 27 (1968).

The Fourth Amendment guarantees “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV.

“Temporary detention of individuals during the stop of an

automobile by the police, even if only for a brief and limited

purpose, constitutes a seizure of a person within the meaning of

the Fourth Amendment.” United States v. Brugal, 209 F.3d 353, 356

(4th Cir. 2000)(quoting Delaware v. Prouse, 440 U.S. 648, 653

(1979)). As with other categories of police action subject to

Fourth Amendment constraints, the reasonableness of a road side

14
seizure “must strike a balance between the public interest and the

individual's right to personal security free from arbitrary

interference by law officers.” United States v. Brignoni-Ponce,

422 U.S. 873, 878 (1975).

We previously defined the proper scope of a routine traffic

stop in United States v. Rusher, explaining that “an officer may

request a driver’s license and vehicle registration, run a computer

check and issue a citation.” 966 F.2d 868, 878 (4th Cir. 1992).

However, once “the driver has produced a valid license and proof

that he is entitled to operate the vehicle he must be allowed to

proceed on his way . . . .” Id. at 876. A seizure “justified

solely on the basis of issuing a citation can become unlawful if it

is prolonged beyond the time reasonably required to complete that

mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). Thus,

once the traffic stop is complete, any continued detention of the

driver violates the Fourth Amendment unless the officer develops a

reasonable, articulable suspicion of a serious crime. Florida v.

Royer, 460 U.S. 491, 498 (1983); Foreman, 369 F.3d at 781.

The concept of reasonable suspicion is “a commonsensical

proposition” and the trial courts “are not remiss in crediting the

practical experiences of officers who observe, on a daily basis,

what transpires on the street.” United States v. Lender, 985 F.2d

151, 154 (4th Cir. 1993). The standard of reasonable suspicion

does, however, require “a minimum level of objective justification

15
for the police action.” Brugal, 209 F.3d at 359 (quoting Illinois

v. Wardlow, 528 U.S. 119, 123 (2000)). It demands more than an

officer’s “inchoate and unparticularized suspicion” or “hunch that

criminal activity is afoot.” Brugal, 209 F.3d at 359 (quoting

Terry, 392 U.S. at 27)). In the context of a routine traffic stop,

the “articulated factors together must serve to eliminate a

substantial portion of innocent travelers before the requirement of

reasonable suspicion will be satisfied.” Foreman, 369 F.3d at 781.

C.

We think the reasoning of the trial court here departs from

our decisions in Foreman and Brugal. See Foreman, 369 F.3d at 782;

Brugal, 209 F.3d at 359. “The Supreme Court has recognized that

factors consistent with innocent travel can, when taken together,

give rise to reasonable suspicion.” Brugal, 209 F.3d at 359

(citing Sokolow,490 U.S. at 9). Simply put, an officer is not

required to eliminate the possibility of innocent conduct for the

seizure to pass constitutional muster. United States v. Arvizu,

534 U.S. 266, 277 (2002) (citing Wardlow, 528 U.S. at 125).

Here, Trooper McCarthy, an officer with special training and

experience in the identification of drug trafficking and who had

seen “probably hundreds of fake identification[s]” prior to

stopping Mr. Newland, (J.A. at 42), immediately believed that Mr.

Newland’s license was fake. At the suppression hearing, both

McCarthy and Trooper Conner, who also possesses extensive

16
experience with fake identifications, described in some detail the

reasons for their suspicions about Mr. Newland’s license. Although

the district court discounted the officers’ observations about the

license based on its own inspection, the court never made an

adverse credibility finding about their testimony, and the court

acknowledged that it does not look at fake driver’s licenses “on a

routine basis.” (J.A. at 156.)

Also, Mr. Newland was traveling on I-95, a major thoroughfare

for narcotics trafficking. Brugal, 209 F.3d at 358 n.5 (I-95 is a

well known drug corridor); Foreman, 369 F.3d at 785

(characteristics of location in which the officer encounters

vehicle is a significant factor in formulating reasonable

suspicion) (citing Brignoni-Ponce, 422 U.S. at 884). In fact, I-95

is so well known for its use by drug traffickers that this circuit

has twice recognized that travel on I-95 is a valid factor in a

reasonable suspicion analysis. Brugal, 209 F.3d at 358 n.5;

United States v. Raymond, 152 F.3d 309, 311 (4th Cir. 1998). In

addition, each state in this circuit through which I-95 passes has

acknowledged its reputation as a drug corridor. (J.A. 37)

(Maryland);United States v. Vidal, 119 Fed. App’x 510, 511 (4th

Cir. 2005) (citing Brugal with approval for the proposition that

travel on I-95 is a factor contributing to reasonable suspicion);

United States v. Bodie, 983 F.2d 1058, 1059 (4th Cir.

1992)(Virginia)(defendants apprehended on I-95 in close proximity

17
to heavy drug trafficking area); Limonja v. Com., 383 S.E.2d 476,

482 (Va. App. 1989) (I-95 North a known drug trafficking route);

United States v. Thorpe, 36 F.3d 1095, 1096 (4th Cir. 1994) (North

Carolina); Brugal, 209 F.3d at 358 n.5 (South Carolina). Although

we have not yet taken judicial notice of this fact, we do so now,

and recognize I-95 as a major thoroughfare for narcotics

trafficking.3

When Mr. Newland produced his license and rental agreement,

his hands “were shaking uncontrollably.” (J.A. 170); Wardlow, 528

U.S. at 124 (physical signs of nervousness and evasive behavior is

a pertinent factor in determining reasonable suspicion)(citing

Brignoni-Ponce, 422 U.S. at 885 (same)); Sokolow, 490 U.S. at 8-9

(same); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (same); Foreman,

369 F.3d at 785 (same). Although Mr. Newland’s shaky hands alone

are not sufficient to establish reasonable suspicion, we should not

discount Trooper McCarthy’s ability to ascertain the severity of

Mr. Newland’s nervousness in comparison to the behavior of

motorists he has encountered in the past. See Lender, 985 F.2d at

154 (courts are not remiss in crediting the practical experiences

3
Courts of Appeals may take judicial notice of any fact not
subject to reasonable dispute if it is generally known within the
territorial jurisdiction of the trial court and is capable of
accurate and ready determination by resort to sources whose
accuracy cannot be reasonably questioned. Fed. R. Evid. 201(f)
(judicial notice may be taken at any stage of proceeding); Flath v.
Bombardier, Inc., 217 F.3d 838 (4th Cir. 2003).

18
of officers who observe, on a daily basis, what transpires on the

street); Foreman, 369 F.3d at 785 (shaking hands indicative of

nervousness and pertinent factor in reasonable suspicion

determination).

Mr. Newland also provided three different and conflicting

addresses to Trooper McCarthy - St. Thomas, Washington, D.C., and

Maryland. He also observed Mr. Newland’s obvious hesitation when

asked to explain why the Maryland address was used on the rental

agreement. See Wardlow, 528 U.S. at 124 (evasive behavior and

hesitation during questioning are pertinent factors in determining

reasonable suspicion).

In addition, Trooper McCarthy testified that he noticed

multiple cell phones in the vehicle’s console. While the presence

of multiple cell phones, by itself, may not be suspicious, when

taken together with the other circumstances present in this case,

this factor contributes to the process of elimination of a

substantial portion of innocent travelers. Foreman, 369 F.3d at

781.

Under the totality of these circumstances, it was not

unreasonable for Trooper McCarthy to suspect that Mr. Newland was

trafficking narcotics. Brugal, 209 F.3d at 361-62 (use of rental

vehicle common method to transport drugs); Wardlow, 528 U.S. at 12

(determination of reasonable suspicion must be based on commonsense

judgments and inferences about human behavior). Trooper McCarthy’s

19
suspicion was further reinforced by Troopers Connor and Lewis, who

arrived “shortly” after Trooper McCarthy had called for back up.

(J.A. 45.) When Trooper Connor asked Mr. Newland about his

destination, he stated that he was on his way to New York City, a

known narcotics source city, to play soccer. See Brugal, 209 F.3d

at 361-62 (travel on known drug corridor coupled with rental car

and destination to New York, a known source city, all factors

contributing to reasonable suspicion). In addition, Troopers

McCarthy and Connor testified that they were suspicious about Mr.

Newland’s travel plans because the Maryland rental agreement was

due to expire later that afternoon, despite the defendant’s plans

to travel to New York. The troopers also noted no visible luggage

in the car. Brugal, 209 F.3d 353 at 359 (noting unusual travel

plans and inadequate luggage as factors contributing to reasonable

suspicion).

In United States v. Arvizu, the Supreme Court found that

children waiving in a mechanical fashion to a border patrol agent

from the rear window of a minivan was, standing alone, a seemingly

innocuous event, but when coupled with the remote location of the

minivan, its presence on a route frequented by drug smugglers, the

evasive behavior of the driver, and the elevated position of the

passengers’ feet, his observations were enough to amount to

reasonable suspicion. 534 U.S. 266, 277 (2002). The Supreme Court

has consistently rejected attempts by lower courts to evaluate and

20
reject factors in isolation from each other because this approach

“does not take into account the ‘totality of the circumstances’ as

our cases have understood that phrase.” Id.

In our opinion, the factors articulated by Trooper McCarthy,

a state trooper with six years of experience, eliminate a

substantial portion of innocent travelers.4 Foreman, 369 F.3d at

785 (nervous behavior, coupled with travel on known drug corridor

in a rental vehicle and destination to New York City, a known

source city, and unusual travel plans sufficient to establish

reasonable suspicion); see Arvizu, 534 U.S. at 274-75 (rejecting

evaluation of “innocent travel” factors in insolation from each

other and advising against a “divide-and-conquer” approach when

determining sufficiency of reasonable suspicion).

The information supplied by Mr. Newland justified a lengthier

stop. We conclude that it was reasonable to detain Mr. Newland

long enough for the canine unit to arrive and confirm or deny

Trooper McCarthy’s suspicions. The canine drug scan began

approximately thirteen minutes after Mr. Newland was stopped.

Given the totality of the circumstances, we cannot say that

Troopers Cooper and Lewis’ response time made the length of the

stop unreasonable. There was also no unreasonable delay caused by

Trooper Catalano. The whole affair lasted less than fourteen

4
Because we conclude that Officer McCarthy had reasonable
suspicion to detain Mr. Newland until the arrival of the canine
unit, it is not necessary to address whether the canine scan
occurred within the scope of Mr. Newland’s concededly lawful
traffic stop, as the Government asserts. See Caballes 543 U.S. at
407.

21
minutes. Once the canine alerted to the presence of drugs, the

troopers had probable cause to search the vehicle. United States

v. Jeffus, 22 F.3d 554, 557 (4th Cir. 1994). Accordingly, we

reverse the holding of the district court and deny the motion to

suppress.

IV.

We disagree with the Government’s position that Newland was

required to file a cross-appeal to assert his argument contesting

probable cause for his arrest. This argument is essentially an

alternate legal theory to affirm the district court’s suppression

order and would not expand his rights under that judgment. See

United States v. American Railway Express Co., 265 U.S. 425, 435-36

(1924). However, it is clear from the record that the presiding

judge was primarily concerned with the facts and events leading up

to the canine scan. (J.A. 149) At the suppression hearing, when

the parties attempted to explore the issue, the court expressed

that it was primarily concerned with the events before the canine

search and encouraged the parties to return to that issue. (J.A.

141). Thus, we think the record may be insufficient to carefully

scrutinize whether the troopers had probable cause to arrest Mr.

Newland and at least unclear whether the parties had a full

opportunity to introduce evidence on that issue. Walker v. True,

399 F.3d 315, 326 (4th Cir. 2005). The record is further unclear

regarding whether the district court actually ruled on the probable

cause issue because the transcript of the suppression hearing does

22
not reflect an application of the probable cause standard, or any

explicit ruling on the propriety of the arrest. Accordingly, we

remand the probable cause issue to the district court for further

development.

V.

For the reasons stated herein, we reverse the suppression

order and remand this case to the district court for further

proceedings not inconsistent with this opinion.

REVERSED AND REMANDED

23
GREGORY, Circuit Judge, concurring in part and dissenting in part:

Today the majority further erodes the requirement that a

police officer have reasonable suspicion of serious criminal

activity before prolonging a traffic stop to allow a canine unit to

arrive and conduct a sweep of the stopped vehicle. The majority

reaches its decision despite the fact that the factors relied upon

in support of the finding of reasonable suspicion, considered

separately and in their totality, do not exclude a majority of

innocent travelers. Because reasonable suspicion that Kevin

Newland was committing a serious crime did not exist, I would

affirm the ruling of the district court to exclude the evidence

that resulted from the canine sweep. I respectfully dissent from

the majority on this point.

I.

Because I believe that the Government’s failure to file

timely certification under 18 U.S.C. § 3731, when considered in

light of the relevant factors, should not result in dismissal of

the Government’s appeal, I concur in Part II of the majority’s

decision.

II.

Although I agree with the majority’s general account of the

facts, I believe that our inquiry must focus on the events only up

until the point that Newland’s stop was prolonged beyond the time

necessary to complete a traffic stop. Thus, I recount the facts

24
from the initial stop until the point I believe that the reasonable

suspicion inquiry must cease.

On September 21, 2005, Maryland State Trooper First Class

David McCarthy pulled over a car driven by Newland northbound on

Interstate 95 (“I-95”) in Cecil County, Maryland. Once the vehicle

pulled off to the right shoulder of the highway, Trooper McCarthy

approached the vehicle and advised Newland that he had been stopped

for speeding. Trooper McCarthy noticed that Newland had an open

cellular telephone, as well as additional cellular telephones in

the vehicle. For his protection, Trooper McCarthy requested that

Newland close the open cellular telephone. Trooper McCarthy then

requested Newland’s license and registration.

In response to Trooper McCarthy’s request, Newland provided a

U.S. Virgin Islands driver’s license in the name of “Kevin Kairo.”

Trooper Newland also indicated that the car was a rental vehicle

and provided McCarthy with the rental agreement. When Newland

handed both of these documents to Trooper McCarthy, his hands were

“shaking uncontrollably.” J.A. 170. Trooper McCarthy’s initial

observation about the rental agreement was that there was a

different address on the agreement than Newland had given as his

current address. Trooper McCarthy questioned Newland about his

address, and Newland “hesitated and eventually advised” that the

address on the agreement was his girlfriend’s address. J.A. 170.

Trooper McCarthy did not question Newland about the license or

about his destination, but returned to his patrol vehicle and

radioed for backup “for . . . safety” as he felt that the stop was

25
more than “just a routine traffic stop at [that] point.” J.A. 15.

One of the backup troopers that McCarthy requested was a canine

handler. Trooper McCarthy made such a request because “there was

certain things with my brief contact with the defendant that raised

my suspicions that something other than this traffic stop,

something else was occurring.” J.A. 15. When Trooper McCarthy

decided to wait for the arrival of a canine unit, a procedure that

the district court found was not routine in all speeding stops of

drivers going 74 miles per hour on I-95 in Cecil County, he

necessarily made the decision to prolong the traffic stop beyond

the time necessary to “request a driver’s license and vehicle

registration, run a computer check and issue a citation.” United

States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992). Although

Trooper McCarthy may have based his decision on his belief that

Newland’s license was obviously fraudulent, that reason was

rejected by the district court—a factual finding the majority does

not explicitly dispute. Thus, the decision to prolong the traffic

stop cannot be supported by Trooper McCarthy’s belief about the

authenticity of Newland’s license; reasonable suspicion must be

established through other factors.

After calling for back up, Trooper McCarthy ran a warrant

check on “Kevin Kairo,” which came back negative. While writing a

traffic warning for speeding, he examined the rental agreement

further and noted that the car was due back to the rental agency in

Silver Spring, Maryland four hours from the time of the stop. He

could have finished writing the ticket at this point, after the

26
warrant check had come back negative. The district court, however,

clearly found that he delayed finishing the ticket to allow Trooper

Christopher Conner and Sergeant Michael Lewis to arrive. See J.A.

146 (“So you have him turn over the driver’s license. He turns

over a rental agreement because it’s a rental car. And for some

reason, there’s then a delay and there’s a discussion and the next

thing we’ve got, a total of three other police officers arriving

and then we have a dog alert.”); id. at 158 (“For a period of time,

the defendant was kept in his car. Trooper McCarthy waited for

further backup. Ultimately, the record reflects and the Court

finds that Sergeant Lewis arrived, another police officer arrived

and the fourth police officer . . . arrived.”); id. (“With respect

to the vehicle registration that was provided, running a computer

check that was done in terms of a warrant check. There was clearly

time to issue a citation. There was simply no reasonable suspicion

of a serious crime.”). Accordingly, I believe that we must find

reasonable suspicion through the factors adduced by Trooper

McCarthy prior to the arrival of Trooper Conner and Sergeant Lewis

if we are to uphold the canine sweep. The conversation between

Trooper Conner and Newland, during which Newland discussed his

travel plans, cannot be considered as part of the inquiry because

it occurred after Trooper McCarthy prolonged the traffic stop

beyond the time allowed by Rusher.

27
 III.

Although we review the existence vel non of reasonable

suspicion de novo, we give deference to the factual findings of the

district court and, importantly, to the inferences drawn from those

facts. See United States v. Arvizu, 534 U.S. 266, 277 (2002). In

addition, we review the facts in the light most favorable to

Newland, as the prevailing party in the suppression hearing. See

United States v. Holmes, 376 F.3d 270, 273 (4th Cir. 2004).

A.

In detailing the reasonable suspicion factors, the majority

begins by taking judicial notice that I-95 is a major thoroughfare

for narcotics trafficking. I believe that such a fact is

inappropriate for recognition through judicial notice; whether I-95

is a major drug trafficking route is a fact subject to reasonable

dispute. See Fed. R. Evid. 201(b). I-95 is an interstate highway

that runs between Houlton, Maine, and Miami, Florida, for a

distance of approximately two thousand miles. There is no doubt

that narcotics are trafficked on I-95; given its status as a major

north-south thoroughfare running the length of the eastern

seaboard, it would be stunning if narcotics were not among the

varied cargoes contained within vehicles traveling on the highway.

The exact magnitude of drug trafficking on I-95 in Cecil County,

Maryland, where Trooper McCarthy stopped Newland, is more complex,

however, than acknowledged by the majority’s sweeping statement

that I-95 is a major thoroughfare for narcotics trafficking.

28
 Since January 1995, pursuant to a court order, the Maryland

State Police (“MSP”) have been required to keep data on traffic

stops.1 See Samuel R. Gross & Katherine Y. Barnes, Road Work:

Racial Profiling and Drug Interdiction on the Highway, 101 Mich. L.

Rev. 651, 658 (2002) (noting that the MSP must keep stop data

pursuant to settlement in Wilkins v. Md. State Police, No. CCB-93-

468 (D. Md. 1993)). From 1995 through June 2000, MSP data indicate

that the MSP made a total of 8,027 vehicle searches. See id. Of

these, 2,146—or roughly one quarter—were made in the I-95 corridor,

the 48.5 mile stretch of I-95 running from Baltimore to the

Delaware state line, a stretch that includes Cecil County. See id.

at 662. In 33.4% of the searches—one out of every three—during

this period, police found narcotics in the vehicle. Id. at 668

tbl. 6. On the I-95 corridor, narcotics were found in 37.3% of all

searches, while elsewhere in Maryland, narcotics were found in 32%

of searches. Id.

At the outset, successful searches on I-95 resulted in

seizures of greater quantities of drugs than searches elsewhere in

Maryland. See id. at 697 tbl. 12. This is not surprising; even if

1
Statistical factfinding of this nature is generally the
prerogative of the district court. In this case, however, because
the majority reaches its conclusion through judicial notice, I
believe that statistics collected by the Maryland State Police on
the frequency of seized narcotics on I-95 cannot be ignored.
Furthermore, I believe these statistics, even given their potential
inaccuracies, to be a more reasoned way of approaching the issue of
whether I-95 is a drug corridor than our taking judicial notice on
the basis of broad and sometimes uncontested statements in our
prior decisions, given that neither party to this appeal addressed
the issue on brief or during oral argument.

29
I-95 were not a drug corridor, it is a major interstate highway.

One would expect seizures on a major interstate to be greater than

those on local roads. Of greater relevance to this case is the

difference in positive search rates of cars traveling northbound on

I-95 versus those traveling south. Overall, there were

approximately twice as many searches performed of vehicles

traveling southbound on I-95 than those traveling northbound. See

id. at 701 tbl. 15. Drugs were found in 41.5% of all searches on

southbound vehicles and 23.5% of all searches on southbound

vehicles revealed drugs in a quantity that would be consistent with

a charge of intent to distribute narcotics. See id. Contrariwise,

drugs were found in 32.7% of all northbound vehicles searched, only

.7% greater than the percent of vehicles searched not on the I-95

corridor that resulted in the discovery of drugs. In only 4.3% of

searches of northbound vehicles were a quantity of drugs found at

the intent-to-distribute level. Again, these percentages are more

consistent with vehicle searches outside of the corridor, where

3.4% of searches were of intent-to-distribute quantities. See id.

at 697 tbl. 12. The authors of the study analyzing the MSP data

conclude that in the hunt for drugs on the corridor, “most of the

big trophies were bagged flying south.” Id. at 697. Thus, it is

southbound travel on the I-95 corridor which results in drug

seizures far and above locations in the rest of the state.

Northbound travelers appear to traffic in narcotics at a rate that

is generally equal to drivers on other Maryland roads. Cf. United

States v. Stewart-Poppelsdorf, 120 Fed. App’x 230, 233 (10th Cir.

30
2004) (considering, during reasonable suspicion inquiry, direction

that car was traveling on known drug route).

Statistics are not inherently reliable, and the MSP data

presented above are no exception. See Gross & Barnes at 678-87

(discussing potential errors and biases in the MSP data set).

Nevertheless, I present the data for two reasons: First, the

existence of data on the issue of drug trafficking on the specific,

relevant portion of I-95 northbound, collected by the law

enforcement agency that conducted the traffic stop at issue in the

instant case, demonstrates the inappropriateness of taking judicial

notice of such a fact.2 Second, the statistics indicate the

possibility that while traffic stops of travelers southbound on the

I-95 corridor may result in an abnormally high percentage of drug

2
I acknowledge that this Court has “take[n] judicial notice of
the fact that South America, in general, and Colombia, in
particular, are major sources of the cocaine sold and used in the
United States.” United States v. Munoz, 974 F.2d 493, 495 (4th
Cir. 1992). While I believe that Munoz should have sought to
support such a conclusion with verifiable evidence, the conclusion
accorded with then-available statistics. See, e.g., Drug
Enforcement Agency, U.S. Dep’t of Justice, The South American
Cocaine Trade: An “Industry” in Transition (1996),
http://purl.access.gpo.gov/GPO/LPS65912 (noting that in 1995, major
Colombian drug trafficking groups distributed most of the world’s
cocaine, made from cocaine base produced in Colombia, Bolivia, and
Peru). In this case, however, the blanket statement of I-95 as a
drug corridor does not fully accord with the statistics gathered by
the MSP. Thus, I find Munoz’s resort to judicial notice
distinguishable from the majority’s. Similarly, situations in
which courts take judicial notice of a specific neighborhood or
area as a high crime area are readily distinguishable from the
majority’s blanket assertion about a two-thousand mile long
highway. Cf. United States v. Evans, 994 F.2d 317, 322 n.1 (7th
Cir. 1993) (holding that trial court did not commit plain error in
taking judicial notice that alleged crime took place in high-crime
area).

31
seizures, northbound travelers such as Newland are statistically as

likely to be trafficking narcotics as any other driver on any other

Maryland road.

In the attempt to bolster its decision to take judicial notice

of I-95’s status as a drug corridor, the majority mischaracterizes

the record and previous decisions of this Court. The majority cites

Trooper McCarthy’s testimony that he is assigned to a team that

identifies possible “terrorists, drug traffickers, [and] gun

runners” on I-95. J.A. 37. The fact that the MSP has a drug

interdiction team that works on I-95 does not constitute an

acknowledgment that I-95 is a drug corridor. Similarly, in United

States v. Raymond, 152 F.3d 309 (4th Cir. 1998), the court did not

make any findings about I-95’s status as a drug corridor. The sole

discussion of I-95 in Raymond concerned the existence of a division

of the South Carolina Highway Patrol “whose members are trained

specifically to patrol I-95 looking for drug trafficking activity.”

Id. at 311. In United States v. Brugal, 209 F.3d 353, 360 (4th

Cir. 2000), one of the factors supporting reasonable suspicion was

that “Interstate 95 is a major drug thoroughfare,” but that factor

was undisputed by the parties. Thus, it is erroneous to cite

Brugal as holding that I-95 is a major drug thoroughfare. The

majority’s citation of United States v. Bodie, 983 F.2d 1058, 1992

WL 389290 (4th Cir. 1992), to support the conclusion that Virginia

“has acknowledged” (the import of which remains unclear to me) that

I-95 is a drug corridor is even more disingenuous. Bodie, an

unpublished decision, dealt not with the status of I-95, but with

32
Meadow Street in the Randolph area of Richmond, characterized as “a

heavy drug trafficking area.” Id. at *1. Bodie does not contain

any acknowledgments by Virginia, a district court in Virginia, or

this Court on I-95’s status.

Finally, by taking judicial notice of I-95’s status as a drug

corridor, the majority provides Newland with a concrete ground

supporting rehearing of this case. Federal Rule of Evidence 201(e)

provides that “[a] party is entitled upon timely request to an

opportunity to be heard as to the propriety of taking judicial

notice and the tenor of the matter noticed.” In this case, Newland

objected at the suppression hearing to judicial notice of the I-95-

corridor issue and has thus preserved the issue on appeal.

Normally, given that the issue of judicial notice and I-95 arose

during the suppression hearing, Newland should have addressed any

objections in his brief. In this case, however, the Government’s

opening brief omitted any mention of I-95’s status as a drug

corridor from the list of the reasonable suspicion factors.3

Accordingly, given that the majority relies on judicially noticing

I-95’s status as a drug corridor and that Newland has objected to

this and has not waived such objection, I believe that Rule 201(e)

affords Newland a right to be heard on this issue upon rehearing of

this case.

3
The Government’s list of factors supporting reasonable
suspicion included the fact that drug traffickers frequently
produce false identification when stopped on I-95, but no claim
that I-95 is a drug corridor.

33
 B.

In addition to improperly taking judicial notice about I-95,

the majority bolsters the reasonable suspicion inquiry by

wrongfully considering Trooper McCarthy’s suspicions about

Newland’s license. Despite the district court’s factual finding

that Newland’s license was not obviously fraudulent, the majority

concludes that this finding was not an adverse credibility finding

with regard to Trooper McCarthy (and the other officers) and

appears to consider Newland’s license in the reasonable suspicion

inquiry. Insofar as the majority attempts to use the lack of an

adverse credibility finding as support that we may consider

Newland’s license in the reasonable suspicion inquiry, this

conclusion is patently incorrect. The district court concluded

that the license was not obviously fraudulent and excluded it from

the reasonable suspicion inquiry. While we review the existence of

reasonable suspicion de novo, we accept the factual findings of the

district court absent clear error and give due weight to the

inferences the district court drew from those facts. See United

States v. Foreman, 369 F.3d 776, 782 (4th Cir. 2004). The majority

does not argue that the district court clearly erred in concluding

that the license was not an obvious fake. Thus, our standard of

review precludes Trooper McCarthy’s doubts about the authenticity

of Newland’s license from the reasonable suspicion inquiry,

notwithstanding the majority’s attempt to reject, sub silentio, the

factual findings of the district court.

34
 IV.

Assuming, arguendo, that I-95 is a “drug corridor,” the

factors supporting reasonable suspicion are: (1) Newland was

traveling on I-95; (2) his hands were shaking uncontrollably when

he produced his license and rental agreement; (3) he provided three

different addresses and hesitated before explaining why he used a

Maryland address on the rental agreement; (4) the car was due back

in Silver Spring four hours after the stop; and (5) Trooper

McCarthy noticed several cellular telephones in the vehicle. I do

not believe that these factors, in their totality, exclude a

majority of innocent travelers. They cannot, therefore, have given

Trooper McCarthy reasonable suspicion that Newland was committing

a serious crime.

A.

Although our reasonable suspicion inquiry examines the

totality of the circumstances, it is necessary to discuss the

individual factors relied upon by law enforcement, both to verify

their existence in the case at bar and for their probative value as

a link to illegal activity. See, e.g., United States v. Santos,

403 F.3d 1120, 1126-34 (10th Cir. 2005) (weighing each reasonable

suspicion factor individually and then the totality of the

circumstances); United States v. Boyce, 351 F.3d 1102, 1108-09

(11th Cir. 2003) (reviewing videotape of traffic stop to determine

that defendant was not nervous and then excluding that factor from

the reasonable suspicion inquiry). After such an inquiry, the

factors can then be examined in their totality. See Santos, 403

35
F.3d at 1134 (examining totality of the circumstances after

discussing factors in isolation). Although “reasonable suspicion

may exist even if ‘each of the articulated factors alone is

susceptible of innocent explanation,’” Foreman, 369 F.3d at 785

(quoting Arvizu, 534 U.S. at 277), it is “impossible for a

combination of wholly innocent factors to combine into a suspicious

conglomeration unless there are concrete reasons for such an

interpretation.” Karnes v. Skrutski, 62 F.3d 485, 496 (3d Cir.

1995).

1. Travel on a known drug corridor4

That a traffic stop occurs on a known narcotics corridor

cannot support reasonable suspicion on its own and should be given

only limited weight in the reasonable suspicion inquiry as a whole.

Indeed, the status of a given highway as a drug corridor is

ubiquitous in Fourth Amendment jurisprudence. See, e.g., United

States v. Jenson, 462 F.3d 399, 405 (5th Cir. 2006) (I-20); United

States v. $49,000,000 in U.S. Currency, More or Less, 208 Fed.

App’x 651, 653 (10th Cir. 2006) (I-70); United States v. Blaylock,

421 F.3d 758, 763, 769 (8th Cir. 2005) (I-40); United States v.

Powell, 137 Fed. App’x 701, 702, 706 (5th Cir. 2005) (I-45

northbound); United States v. Vasquez, 298 F.3d 354, 355, 357 (5th

4
Despite my disagreement with the majority’s taking judicial
notice of I-95’s status as a major narcotics trafficking corridor
and the Government’s failure to include the same as a factor
supporting reasonable suspicion on brief to this Court, I include
this factor in the reasonable suspicion inquiry because I believe
that even with its inclusion, reasonable suspicion did not exist.

36
Cir. 2002) (per curiam) (I-35 and U.S. Highway 59); United States

v. Farmer, 215 F.3d 1338, 2000 WL 639474, at *1 (10th Cir. 2000)

(unpublished table disposition) (U.S. Highway 54); United States v.

Hernandez-Gonzales, 166 F.3d 1222, 1999 WL 41091, at *4 (10th Cir.

1999) (unpublished table disposition) (I-15); United States v.

Grillo, 40 F.3d 1245, 1994 WL 620795, at *2 (4th Cir. 1994)

(unpublished table disposition) (I-85); United States v. Pino, 855

F.2d 357, 358 (6th Cir. 1988)(I-24); United States v. Aleman, No.

CRIM.A 05-261, 2006 WL 91777, at *3 (E.D. La. 2006) (I-12); United

States v. Sugar, 322 F. Supp. 2d 85, 88 (D. Mass. 2004) (I-44);

State v. Kenyon, 651 N.W.3d 269, 271 (S.D. 2002) (I-29 from Sioux

Falls to Sioux City); O’Boyle v. State, 117 P.3d 401, 411 (Wyo.

2005) (I-80). Given that nearly every stretch of interstate is

considered a drug corridor, the fact that a stop occurred on any

such route is almost meaningless. See United States v. Wisniewksi,

358 F. Supp. 2d 1074, 1093 (D. Utah 2005) (“[T]raveling on a ‘drug

corridor’ cannot reasonably support a suspicion that the traveler

is carrying contraband. To so hold would give law enforcement

officers reasonable suspicion that every vehicle on every major—and

many minor—thoroughfares throughout this country was transporting

drugs.”), aff’d, 192 Fed. App’x 749 (10th Cir. 2006). Furthermore,

because of courts’ willingness to designate various cities and

states as “source” regions for narcotics, it is likely that most

major roads in this country could be considered drug corridors.

See Foreman, 369 F.3d at 795 (Gregory, J., concurring in part and

dissenting in part); United States v. Beck, 140 F.3d 1129, 1138 n.3

37
(8th Cir. 1998) (citing cases recognizing, inter alia, Colorado,

Texas, Florida, Arizona, the entire West Coast, New Jersey, New

York City, Phoenix, Fort Lauderdale, Houston, Chicago, and Dallas

as drug source cities or states); State v. Quirk, 842 N.E.2d 334,

343 (Ind. 2006) (“[C]onsidering the substantial number of states

and cities that have been designated as sources of drugs, a

motorist, in our highly mobile society, would be hard pressed not

to travel either from, to, or through a drug-source

jurisdiction.”).

2. Newland’s nervous behavior

Although this Court has recognized an individual’s nervousness

as a factor supporting reasonable suspicion, this factor should be

given only limited weight in the context of a traffic stop. See

United States v. Richardson, 385 F.3d 625, 630-31 (6th Cir. 2004)

(“[A]lthough nervousness has been considered in finding reasonable

suspicion in conjunction with other factors, it is an unreliable

indicator, especially in the context of a traffic stop. Many

citizens become nervous during a traffic stop, even when they have

nothing to fear.” (citations omitted)).

In this case, although Trooper McCarthy’s report mentions

Newland’s hands shaking uncontrollably, there was no testimony

adduced at the hearing on the motion to suppress as to the severity

of this reaction compared to that of other motorists whom Trooper

McCarthy had stopped or whether Newland’s nervousness dissipated

throughout the length of the traffic stop. Thus, while I agree

38
with the majority that we should not discount a law enforcement

officer’s ability to ascertain nervousness through comparison to

the behavior of other motorists, there is no such evidence that

Newland’s nervousness was severe in comparison to other motorists.

Accordingly, I would place little weight on Newland’s nervousness

in the reasonable suspicion inquiry. See Santos, 403 F.3d at 1127

(“Only extraordinary and prolonged nervousness can weigh

significantly in the assessment of reasonable suspicion.”); United

States v. Williams, 271 F.3d 1262, 1268 (10th Cir. 2001) (noting

that mere nervousness is of limited significance in reasonable

suspicion inquiry, but that extreme and continued nervousness is

entitled to somewhat more weight).

3. The rental agreement and Newland’s addresses

The fact that Newland was driving a rental car that was due

back to the rental company in Silver Spring four hours after the

stop is a factor in the reasonable suspicion inquiry. This factor,

however, is entitled to minimal weight because there was no

testimony connecting the keeping of a rental car over the

contracted length and the commission of illegal activity. Nor was

there evidence about the financial consequences for Newland had he

returned the car late. See, e.g., Santos, 403 F.3d at 1129 (noting

lack of testimony that extending rental agreement would have

resulted in defendant’s paying penalty charges above normal rental

fees and that keeping car beyond rental period may “suggest that

the driver’s travel plans are uncertain or about to change, but,

39
without more, not that they are implausible”); Boyce, 351 F.3d at

1109 (noting that planning to return rental car late is not

equivalent to a suspicious travel plan and is not directly

indicative of criminal activity). In addition, the district court

found that even if Newland planned on returning the car late, this

evidence would not indicate that Newland was committing a crime.

This factual inference is entitled to deference. See Arvizu, 534

U.S. at 276-77 (giving deference to district court’s determination

that a reasonable officer would wonder why defendant’s children

were methodically waving out back window of minivan).

Newland’s having a different residence than the ones listed on

his driver’s license and the rental agreement, as well as his

hesitation when asked to explain the different addresses, is

relevant to the reasonable suspicion inquiry. Contrary to the

majority’s characterization, however, there was nothing

“conflicting” about the addresses that Newland provided to Trooper

McCarthy. Although the addresses were different, Newland did not

claim to live in the Virgin Islands or at his girlfriend’s house.

Cf. Richardson, 385 F.3d at 631 (“[T]he allegedly conflicting

explanations of their travel plans are not mutually exclusive; it

is entirely plausible that the group traveled both to see a doctor

and a lawyer.”). I do not dispute that the presentation of

multiple addresses is relevant to the reasonable suspicion inquiry

nor that such a fact, in combination with other factors, can

support a finding of reasonable suspicion. The different

addresses, however, did not raise questions about Newland’s

40
authorization to operate the vehicle and thus were not as probative

as those inconsistencies that would lead an officer to prolong a

stop in order to verify that the vehicle was not stolen. See J.A.

147 (“There’s no indication in the records before me that there was

any concern that [Newland] had stolen the car, that he didn’t have

the car legitimately.” (statement of district court)); cf.

Williams, 271 F.3d at 1265, 1270 (describing drug couriers’

practice of using third-party rental vehicles where defendant’s

rental agreement was in another’s name); United States v. Harris,

928 F.2d 1113, 1114-15 (11th Cir. 1991) (holding that defendant

with restricted license stopped in rental car raised question of

authorization to drive vehicle); State v. DeMarco, 952 P.2d 1276,

1280 (Kan. 1998) (rejecting existence of reasonable suspicion in

case where defendant had rental agreement indicating absent

renter).

4. Multiple cellular telephones

I agree with the majority that multiple cellular telephones

are not suspicious in and of themselves, but may be considered as

part of the totality of the circumstances in the reasonable

suspicion inquiry. Unlike other communications devices that

indicate communication with individuals only within a short range,

and thus are particularly prevalent in drug trafficking operations,

cellular telephones are commonplace in today’s society and thus

their presence has only limited probative value. Cf. United States

v. Maldonado, 472 F.3d 388, 398 (5th Cir. 2006) (“[T]estimony

41
indicated that both vehicles had two-way radios typically used by

drug traffickers.”); Williams, 271 F.3d at 1262 (discussing

presence of two-way, short-range radio as indicating that driver

intended to stay in contact with someone in close proximity to the

car and the use of these devices as a common tactic of drug

smuggling teams); Cresswell v. State, 564 So.2d 480, 483 (Fla.

1990) (noting presence of CB radio in defendant’s car).

B.

“While law enforcement officers certainly should be permitted

to rely on their experience and expertise in detecting criminal

behavior, there is a point at which experience becomes only an

unparticularized suspicion or hunch.” United States v. Lebrun, 261

F.3d 731, 735 (8th Cir. 2001) (Tunheim, J., dissenting) (internal

quotation marks omitted). In this case, I believe that the

totality of the circumstances did not constitute reasonable

suspicion that Newland was engaged in illegal activity. There are

multiple factors supporting the existence of reasonable suspicion,

but, even when evaluated together, these factors do not rise to the

level of suspicion that we require because they do not serve to

eliminate the majority of innocent travelers.

Unlike in Brugal and Foreman, none of the factors supporting

reasonable suspicion, even when taken together, provide a basis to

conclude that Newland was engaged in drug trafficking. For

example, in Brugal, while the defendants were traveling on I-95,

they also exited the interstate at a “dead exit” to avoid a

supposed drug checkpoint further ahead on the highway. 209 F.3d at

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355. That behavior, in conjunction with inconsistent travel plans

and other factors, supported a conclusion of reasonable suspicion.

See id. Similarly, in Foreman, travel on a drug corridor, in

conjunction with unusual travel plans and a factor directly linked

to drug trafficking (the presence of multiple air fresheners

hanging from a rearview mirror) created reasonable suspicion. See

369 F.3d at 784-85. In this case, there is no factor—other than

Newland’s driving on a drug corridor, which I believe is entitled

to minimal weight—that links Newland with drug trafficking.

Compare Richardson, 385 F.3d at 630-631 (finding lack of reasonable

suspicion where defendants exhibited nervousness, gave conflicting

travel plans, and one defendant moved to the driver’s seat of the

car while the officer questioned another defendant), Boyce, 351

F.3d at 1108-10 (finding lack of reasonable suspicion where

defendant was driving rental car on known drug corridor, told

officer he planned to return car two days late, and videotape of

stop did not support police officer’s contention that defendant

displayed signs of nervousness), Beck, 140 F.3d at 1137 (finding

lack of reasonable suspicion where defendant was driving rental car

rented by third party, displayed signs of nervousness, was coming

from drug source state to drug demand state, had fast food trash on

floor of car, and officer did not believe defendant’s explanation

for trip), and DeMarco, 952 P.2d at 1280, 1285 (finding lack of

reasonable suspicion where defendants were traveling in rental

vehicle, on drug corridor, and gave inconsistent travel plans and

were nervous), with United States v. Bradford, 423 F.3d 1149, 1157-

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58 (10th Cir. 2005) (finding reasonable suspicion where defendant

exhibited “numerous physical manifestations of fright,” gave

evasive and conflicting answers to basic questions, related travel

plans that defied common sense, was driving rental car that

contained luggage and fast-food wrappers, and second car exhibiting

“chase car” behavior was spotted during stop), Santos, 403 F.3d at

1133-34 (finding reasonable suspicion where defendant driving

rental car on drug corridor displayed signs of nervousness, had

inconsistent travel plans, could not answer basic questions, and

wrongfully denied having criminal record), Williams, 271 F.3d at

1271 (finding reasonable suspicion where defendant exhibited

extreme nervousness, had a short-range two-way radio, and was

driving a rental car registered in another’s name), and Cresswell,

564 So.2d at 481 (finding reasonable suspicion where defendant was

driving car registered to someone else, with Maine plates, but New

York inspection sticker, on drug corridor, and where defendant

exhibited signs of nervousness, the car contained a CB radio, as

well as items in the backseat normally found in trunk). Taking

Newland’s behaviors in conjunction, there is no concrete basis upon

which to justify the elevation of those innocent factors into the

existence of reasonable suspicion.

In the ordinary case, we give due weight to factual inferences

drawn by local law enforcement officers. Ornelas v. United States,

517 U.S. 690, 699 (1996). In this case, however, there was no

testimony from Trooper McCarthy that reasonable suspicion was

established solely from the factors upon which we must rely on this

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appeal. Trooper McCarthy testified that his suspicion was based on

Newland’s license—a consideration that the district court rejected.

Furthermore, Trooper McCarthy’s testimony did not provide

sufficient links between the factors supporting reasonable

suspicion and the commission of a serious crime by Newland. For

example, though Trooper McCarthy noted in his report that Newland’s

hands shook when he provided his license and the rental agreement,

he did not testify as to whether Newland appeared exceptionally

nervous in comparison to other motorists or whether Newland’s

nervousness dissipated during the course of the stop. Similarly,

Trooper McCarthy did not testify about any link between cellular

telephones and drug trafficking or inquire as to the consequences

if Newland returned the rental car late.

On appeal, the Government has focused on establishing that

Newland’s license was obviously fraudulent; it has offered no

analysis as to why, accepting the factual findings of the district

court, reasonable suspicion existed. Thus, neither Trooper

McCarthy’s testimony, nor the Government, provide any cognizable

reason why the factors discussed above, innocent in their

isolation, become sufficient to support reasonable suspicion when

they are taken in their entirety.

In sum, reviewing the facts in the light most favorable to

Newland, as we must, I do not believe that reasonable suspicion

existed. The totality of the circumstances did not support the

conclusion that Newland was committing a serious crime, given that

none of the factors provided a direct link to drug trafficking and

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there is no evidence as to why the totality of the circumstances

indicated that Newland was committing a serious crime. Because the

factors would not exclude a majority of innocent travelers, Trooper

McCarthy wrongfully prolonged the traffic stop to allow the canine

unit to arrive. I would thus affirm the district court and

suppress the evidence resulting from the canine sweep of Newland’s

vehicle.

V.

With all due respect, the majority undermines factual findings

of the district court, engages in extra-record “factfinding” that

is not warranted in this instance, and ignores that the totality of

the circumstances did not provide a link to serious criminal

activity, in order to uphold the canine sweep of Newland’s vehicle.

Viewing the facts in the light most favorable to Newland and

crediting the district court’s findings of facts, as well as

inferences drawn from those facts, there was no reasonable

suspicion that Newland was committing a serious crime. Thus, I

believe that the canine sweep was improper under our precedent and

would affirm the ruling of the district court. Accordingly, I

respectfully dissent.

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