IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2010
No. 08-41063 Lyle W. Cayce
Clerk
United States of America
Plaintiff-Appellee
v.
Kevin Andrew Pack II
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
Before GARWOOD, DAVIS, and DENNIS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant, Kevin Andrew Pack II (Pack), was charged with
possession with intent to distribute 17.91 pounds of marihuana in violation of
21 U.S.C. § 841(a)(1) and using, possessing, and carrying a Luger pistol during,
in relation to, and in furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1). Pack filed a motion to suppress the marihuana and the pistol,
arguing that this evidence was tainted by an unconstitutional detention of his
person that occurred during the traffic stop and subsequent search of the vehicle
in which he had been a passenger. The district court denied his motion to
suppress, finding that he lacked standing to challenge the evidence. Pack
No. 08-41063
entered a conditional guilty plea in which he pleaded guilty to the charge of
possessing the pistol in violation of section 924(c)(1), but reserved the right to
appeal the denial of his motion to suppress. Under the terms of his plea
agreement, the charge of possession with intent to distribute marihuana was
dismissed.
On appeal, Pack argues that he has standing to challenge the discovery of
the drugs and the gun, because he has standing to contest the seizure of his
person. He further argues that his motion to suppress should have been
granted, because the challenged evidence was the fruit of an illegal detention
that violated his Fourth Amendment rights. The Government concedes that he
had standing to challenge the evidence, but argues that the undisputed factual
record supports the denial of his motion to suppress.
For the following reasons, we affirm.
FACTS AND PROCEEDINGS BELOW
On February 26, 2006, Trooper Brian Worley (Worley) of the Texas
Department of Public Safety (DPS) – a some seventeen year law enforcement
officer – stopped an easterly bound vehicle bearing Indiana license plates in
Hopkins County, Texas, for traveling at seventy-eight miles per hour on a
portion of Interstate 30 (I-30) with a speed limit of seventy miles per hour. The
driver and owner of the vehicle was Courtney Williamson (Williamson). Pack
was her only passenger. The stop occurred at 8:45 a.m.1
Worley approached the passenger side of the vehicle and asked both
occupants for their driver’s licenses. He also requested the vehicle’s registration.
1
The timing of this and several other relevant events in this case is reflected in the
time stamps on a video of the traffic stop that was admitted into evidence at the hearing on
Pack’s motion to suppress. They are not disputed.
2
No. 08-41063
He noticed that Pack appeared to be extremely nervous. Pack was breathing
heavily, his hands were shaking, and his carotid artery was visibly pulsing.
Worley asked Williamson to accompany him back to the patrol car.
Once they were in the patrol car, Worley informed Williamson that she
had been speeding and that he planned to issue her a warning. He then asked
her about her travel history. She replied that she and Pack, her boyfriend, had
been visiting her aunt in Houston for the last two days, because her aunt was ill.
At 8:48 a.m., Worley radioed dispatch and requested computer checks on
Williamson’s and Pack’s licenses and criminal histories. Dispatch informed
Worley that the Texas Crime Information Center’s (TCIC) computer was down,
so he would only be able to obtain driver’s license information at that time. One
minute later, dispatch informed him that Williamson’s license was clear, but
that Pack’s had been suspended.
Leaving Williamson with the patrol car, Worley returned to Williamson’s
vehicle and informed Pack that his license had been suspended. Pack said that
he knew about the suspension. Worley then asked Pack about the couple’s travel
history. Pack told Worley that he and Williamson were coming from Dallas,
where they had visited friends. Pack also said that, before going to Dallas, he
and Williamson had stayed with some of his relatives in San Antonio for a few
days. In response to questioning by Worley, Pack said that he was not aware of
any family Williamson might have had in Texas. He also said that he did not
know if Williamson had any family members in Texas who were ill.
Worley later testified that he knew I-30 served as a drug trafficking
corridor and that Houston and Dallas were major drug distribution centers.
Worley had been in law enforcement for seventeen years. The conflicting stories
told by Pack and Williamson, the fact that they were traveling along a drug
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No. 08-41063
trafficking corridor, and Pack’s extreme nervousness led Worley to believe, based
on his experience, that Pack and Williamson were involved in criminal drug
activity.
At 8:51 a.m., Worley returned to the patrol car, confronted Williamson
with the differences between her story and Pack’s, and asked her if she had any
illegal items in her vehicle. She said that she did not, but she refused to grant
Worley permission to search the vehicle. Worley responded by calling in a
canine unit. Afterwards, he continued to question Williamson, who changed her
story, claiming that Pack had stayed in San Antonio while she visited her aunt
in Houston. However, she could not name any of Pack’s relatives in San
Antonio, and she did not know her aunt’s current last name, though she claimed
it previously had been “Pierson.”2
Several minutes later, dispatch informed Worley that the DPS canine unit
would take forty-five minutes to arrive. Worley cancelled the request and
instead called in the canine unit of Hopkins County (where the stop occurred).
He then returned to Williamson’s vehicle and questioned Pack, who changed his
story, denying that he had stayed in San Antonio and adding that he had visited
someone in Houston with Williamson, though he said he did not know if the
person they had visited was her aunt.
At 8:57 a.m., Worley told Pack to join Williamson in the back of the patrol
car. In response to questioning about his criminal history, Pack admitted that
he had been arrested in the past for theft and for fighting at school. Further
questioning of the couple revealed that Williamson did not know her aunt’s
2
Williamson may have said “Peterson” instead of “Pierson,” but her response to this
question on the videotape of the stop is not clearly audible.
4
No. 08-41063
telephone number or home address.
At 9:02 a.m., dispatch informed Worley that the TCIC system was working
again. Both records initially came back clean, but at 9:05 a.m., dispatch
reported that Pack had four prior arrests for theft. At 9:09 a.m., Worley called
in the license plate number of Williams’s vehicle, and at 9:10 a.m. dispatch
confirmed that it was registered to Williams. The canine unit arrived at
9:18 a.m., and the dog alerted to the vehicle’s trunk. Worley searched the trunk
and found two duffel bags containing 17.91 pounds of marijuana and a Luger
pistol.
The magistrate judge’s report and recommendation, and modified report
and recommendation, each summarize the above stated undisputed facts in the
“background” section of those respective reports.
On November 8, 2006, a grand jury indicted Pack on two counts,
possession with intent to distribute 17.91 pounds of marihuana in violation of
21 U.S.C. § 841(a)(1) and using, possessing, and carrying the Luger during, in
relation to, and in furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1). Pack filed a motion to suppress the marijuana and the pistol
on February 19, 2008, arguing that both were the fruit of an unconstitutional
seizure of his person.
A hearing on the motion to suppress was held before a magistrate judge
on February 27, 2008. The only evidence presented at the hearing was the
testimony of Worley and the video of the traffic stop. The magistrate judge
issued a report recommending that the motion be denied on March 5, 2008. This
report was withdrawn in response to objections made by Pack, and a modified
report dated April 10, 2008 was issued recommending again that the motion be
denied (all without any further evidentiary hearing or request for same). The
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No. 08-41063
magistrate judge reached this recommendation based on its conclusion that Pack
lacked standing to challenge the discovery of the evidence found in the search
of Williamson’s vehicle. He further held that, even if Pack had standing to
challenge the discovery of the evidence, Pack had not demonstrated a factual
nexus between his detention and the discovery of the challenged evidence. Pack
filed additional objections, but the district court accepted the modified report and
recommendation on May 2, 2008, and denied Pack’s motion to suppress.
On June 3, 2008, Pack entered a conditional guilty plea in which he
reserved the right to appeal the district court’s denial of his motion to suppress.
On September 15, 2008, he was sentenced to sixty months of imprisonment,
three years of supervised release, and a $100.00 special assessment. Pack now
prosecutes his appeal.
DISCUSSION
Pack argues that the district court erred in adopting the magistrate court’s
modified report and recommendation, which found that Pack’s motion to
suppress should be denied because he lacked standing to challenge the search
of Williamson’s vehicle and because there was no factual nexus between his
allegedly unconstitutional detention and the discovery of the challenged
evidence. The Government, although it argued lack of standing below, concedes
in this court that Pack had standing to challenge the evidence, asserting that
Pack’s standing to challenge the seizure of his person allowed him to challenge
all evidentiary fruits of his seizure. However, the Government argues that we
should affirm the denial of Pack’s motion to suppress because the factual record
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No. 08-41063
establishes that Pack’s detention was constitutional.3
I. Standard of Review
Where a district court has denied a motion to suppress evidence, we review
its factual findings for clear error and its conclusions of law de novo. United
States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006). We view the evidence in the
light most favorable to the party that prevailed below. United States v. Cantu,
230 F.3d 148, 150 (5th Cir. 2000). We may affirm the district court’s decision on
any basis established by the record. Charles, 469 F.3d at 405; United States v.
Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999).
II. Fourth Amendment “Standing”
The exclusionary rule allows a defendant to suppress the evidentiary fruits
of a violation of his Fourth Amendment rights. 6 LaFave, Search and Seizure:
A Treatise on the Fourth Amendment § 11.1, at 4 (4th ed. 2004). Fourth
Amendment rights are personal rights, which may be enforced only by the
person whose rights were infringed. Rakas v. Illinois, 99 S.Ct. 421, 428 (1978).
Because Fourth Amendment rights are personal, the Supreme Court has stated
that there is no useful analytical purpose to be served by considering a matter
of standing distinct from the merits of a defendant’s Fourth Amendment claim.
See id. (“Rigorous application of the principle that the rights secured by this
Amendment are personal, in place of a notion of ‘standing,’ will produce no
additional situations in which evidence must be excluded.”). Despite this
3
The historic facts concerning the stop and subsequent search of Williamson’s car
are largely set out in the “Factual Background” section of the magistrate judge’s April 10,
2008 modified report and recommendation. At oral argument Pack’s counsel expressly
conceded that he was not challenging the facts as so set out. Nor has he challenged any of
the hereinabove recited historic facts in any of his appellate briefing or at oral argument.
The underlying facts as hereinabove set out are undisputed.
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No. 08-41063
admonishment, for brevity’s sake, courts often refer to the question of whether
or not a defendant is asserting a violation of his own Fourth Amendment rights
as one of “standing.” See, e.g., United States v. Grant, 349 F.3d 192, 195–96 (5th
Cir. 2003); United States v. DeLuca, 269 F.3d 1128, 1131 (10th Cir. 2001).
In Rakas, the Supreme Court held that the Fourth Amendment rights of
passengers were not violated when the police unlawfully searched the vehicle in
which they were riding if the passengers had no ownership interest or
reasonable expectation of privacy in the vehicle. Id., 99 S.Ct. at 429–33.
Because the passengers had no ownership interest or reasonable expectation of
privacy in the vehicle, the only Fourth Amendment rights that had been violated
were those of the vehicle’s owner. See id. However, in Brendlin v. California,
the Court held that a passenger with no ownership interest in a vehicle could
challenge evidence discovered as a result of an allegedly illegal traffic stop of the
vehicle, because the stop and the detention that followed constituted a seizure
of the persons of everyone in the vehicle. 127 S.Ct. 2400, 2403–07 (2007). Since
everyone in the vehicle was seized, the passenger’s challenge was directed
against a purported violation of his own Fourth Amendment rights. See id.
Pack argued before the magistrate judge that he had “standing” to
challenge the evidence, because it was the fruit of a seizure of his person, which
he had “standing” to challenge under the rule of Brendlin. The magistrate judge
disagreed, because he found that Pack’s argument contained a flawed premise.
It was not necessarily true that the evidence was the fruit of Pack’s seizure,
because Williamson was also detained by Worley. Even if Worley had released
Pack, the evidence still would have been discovered if Worley had continued to
detain Williamson and her vehicle. And Pack could not assert Williamson’s
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No. 08-41063
Fourth Amendment rights, because Fourth Amendment rights are personal in
nature. See Rakas, 99 S.Ct. at 428. Cf. United States v. Sharpe, 105 S.Ct. 1568,
1574 (1985) (“It is not necessary for us to decide whether the length of Sharpe’s
detention was unreasonable, because that detention bears no causal relation to
Agent Cooke’s discovery of the marihuana. The marihuana was in Savage’s
pickup, not in Sharpe’s Pontiac; the contraband introduced at respondents’ trial
cannot logically be considered the ‘fruit’ of Sharpe’s detention.”).
Furthermore, the magistrate judge concluded that, even if the evidence
had been obtained in part as a result of the seizure of Pack’s person, he had not
shown that it was obtained as a result of the only aspect of his seizure which was
even arguably illegal. A defendant cannot suppress evidence obtained as the
result of a search or seizure which was legal. See Sharpe, 105 S.Ct. at 1573
(“The Fourth Amendment is not, of course, a guarantee against all searches and
seizures, but only against unreasonable searches and seizures.” (emphasis in
original)). Rather, he must move to suppress evidence obtained as the result of
an alleged violation of his Fourth Amendment rights. See id.
Pack did not allege that Worley’s decision to stop Williamson’s vehicle was
a violation of his Fourth Amendment rights. He could not have made this
argument successfully, because the evidence was undisputed that the vehicle
was speeding. See, e.g., United States v. Shabazz, 993 F.2d 431, 435 (5th Cir.
1993) (“Appellants do not argue, nor could they, that the initial stop of their
vehicle for speeding was improper. This is so whether or not Terry applies.”).
Pack cannot validly allege that the detention that followed the stop immediately
violated his Fourth Amendment rights. Any such argument is plainly untenable
under our case law. See, e.g., United States v. Brigham, 382 F.3d 500, 507–508
9
No. 08-41063
(5th Cir. 2004) (en banc) (describing the types of inquiries and routine checks a
police officer may perform automatically upon making a lawful traffic stop).
This leaves Pack’s claim that his detention became illegal after Worley
completed the driver’s license and criminal history checks. See generally
Brigham, 382 F.3d at 510 (discussing prior cases in which evidence was
suppressed because police officers completed their “computerized driver’s license
and vehicle registration checks but continued to detain the drivers without
reasonable suspicion . . . .”).
However, Worley observed Pack’s extreme nervousness and obtained
Pack’s conflicting story before the routine checks were completed. The
nervousness and the conflicting story were the key facts that caused Worley to
become suspicious and detain the vehicle. Therefore, the magistrate judge found
that the portion of Pack’s detention which Pack argued was illegal had not
contributed to Worley’s discovery of the drugs. If Worley had released Pack
promptly after he had exhibited extreme nervousness and he and Williamson
had told their conflicting stories, Worley still would have discovered the
marihuana and the pistol, so long as he had continued to detain Williamson.
Therefore, in the magistrate judge’s words, there was no “factual nexus” between
the alleged Fourth Amendment violation consisting of the subsequent continued
detention of Pack and the discovery of the marihuana and the pistol.
Accordingly, the magistrate judge held that Pack lacked “standing” to challenge
the evidence. The magistrate judge refused to reach the issue of whether or not
Pack’s detention had been constitutional on the merits, because he had
concluded that Pack lacked “standing.”
We decline to review the issue of “standing” on appeal, because we agree
with the Government that, even if Pack had “standing” to challenge the
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No. 08-41063
evidence, the undisputed factual record supports the denial of his motion to
suppress on the ground that his detention was constitutionally justified. In
declining to address the issue of “standing,” we make no comment on the
propriety of the Government’s decision to concede.4 Therefore, we assume for
the sake of argument that Pack was entitled to challenge the evidence discovered
in Williamson’s vehicle as being the fruit of a violation of his Fourth Amendment
rights.
III. Fourth Amendment Merits5
4
We also note that our decision to resolve Pack’s case on the merits without
addressing the “standing” issue is not an exercise of “hypothetical jurisdiction” like that
prohibited by the Supreme Court in Steel Co. v. Citizens for a Better Environment. 118
S.Ct. 1003, 1016–17 (1998). This follows from the fact that the question of Fourth
Amendment “standing” is not truly a question of standing in the first place, but is instead
an issue of the merits of Pack’s claim. See Rakas, 99 S.Ct. at 428 (stating that there is no
useful analytical purpose to be served by considering a matter of standing distinct from the
merits of a defendant’s Fourth Amendment claim).
5
Contrary to the suggestion of the dissent, nothing in United States v. Arvizu, 122
S.Ct. 744 (2002), requires a remand, nor does the dissent cite any case requiring such a
remand on the basis of Arvizu. It is clear that “as a general matter determinations of
reasonable suspicion and probable cause should be reviewed de novo on appeal.” Ornelas v.
United States, 116 S.Ct. 1657, 1663 (1996). “This court may affirm the district court’s
ruling on a motion to suppress based on any rational supported by the record.” United
States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005). See also United States v. Ibarra-
Sanchez, 199 F.3d 753, 758 (5th Cir. 1999) (same). “To the extent the underlying facts are
undisputed, as they essentially are here, we may resolve questions such as probable cause
and reasonable suspicion as questions of law.” Blackwell v. Barton, 34 F.3d 298, 305 (5th
Cir. 1994). See also Ibarra-Sanchez at 758 (same); United States v. Kye Soo Lee, 962 F.2d
430, 435 n.17 (5th Cir. 1992) (where determinative facts are not disputed, probable cause is
a question of law); United States v. Basey, 816 F.2d 980, 988 (5th Cir. 1987)
(reasonableness in investigatory stop cases ultimately a question of law). Here the only
evidence before the magistrate judge was the testimony of Worley and the videotape of the
stop (with audio). At no time did Pack testify (he was clearly protected by United States v.
Simmons, 88 S.Ct. 967, 975-76 (1968)). Nor did Williamson testify. All the evidence at the
hearing was presented by the United States in support of its previously filed opposition to
the motion to suppress which alleged not only a lack of standing but also that, in any event,
Worley’s “continued detention of Pack after the computer checks were returned was
permissible” because “he had developed a reasonable suspicion that the defendant was
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No. 08-41063
We analyze the legality of traffic stops for Fourth Amendment purposes
under the standard articulated by the Supreme Court in Terry v. Ohio, 88 S.Ct.
1868 (1968). Brigham, 382 F.3d at 506. Under this standard, we make a two-
part inquiry. Id. First, we examine whether or not the officer’s decision to stop
the vehicle was justified at its inception. Id. Second, we determine whether or
not the officer’s subsequent actions were reasonably related in scope to the
circumstances that caused him to stop the vehicle in the first place. Id. An
officer’s subsequent actions are not reasonably related in scope to the
circumstances that caused him to stop the vehicle if he detains its occupants
beyond the time needed to investigate the circumstances that caused the stop,
unless he develops reasonable suspicion of additional criminal activity in the
meantime. Id. at 507. If the officer develops reasonable suspicion of additional
criminal activity during his investigation of the circumstances that originally
caused the stop, he may further detain its occupants for a reasonable time while
appropriately attempting to dispel this reasonable suspicion. See id.
We have held that an officer may examine driver’s licenses and vehicle
registrations and run computer checks as part of his investigation of the
circumstances that originally caused the stop. Id. at 508. He may also ask
about the purpose and itinerary of the occupants’ trip as part of this
investigation, because we consider these questions to be reasonably related in
scope to his investigation of the circumstances that caused the stop. See id. at
506–08. Additionally, we have held that an officer may ask questions on subjects
engaged in criminal activity,” citing, inter alia, Pack’s extreme nervousness, the highway
being a known drug corridor, and the above noted illogical and conflicting stories that Pack
and Williamson told Worley about their travels.
Pack has at no time – here or below – challenged the facts as related by Worley (and
recited in the magistrate judge’s reports) regarding the stop as hereinabove set out.
12
No. 08-41063
unrelated to the circumstances that caused the stop, so long as these unrelated
questions do not extend the duration of the stop. Shabazz, 993 F.2d at 436–37.
The reasoning behind this rule is that the Fourth Amendment protects against
detention, not questioning. Id. at 436. Thus, no Fourth Amendment harm is
done where the officer asks the occupants of a vehicle questions that are
unrelated to his reason for stopping the vehicle while waiting for routine
computer checks to be processed. See id. at 436–37.
The first part of the two-part Terry inquiry is not at issue in Pack’s case,
because it is undisputed that Williamson’s vehicle was speeding, so it is
undisputed that Worley’s stop was justified at its inception. See, e.g., Shabazz,
993 F.2d at 435 (5th Cir. 1993) (“Appellants do not argue, nor could they, that
the initial stop of their vehicle for speeding was improper.”). The Government
argues that the second part of the Terry inquiry was also satisfied. It argues
that the facts that emerged during Worley’s investigation of Williamson’s
speeding offense were sufficient to create reasonable suspicion in his mind that
Pack was engaged criminal activity, justifying Worley’s decision to detain Pack
until the canine unit arrived. Pack argues that Worley’s decision to detain him
beyond the time it took to investigate Williamson’s speeding offense6 violated the
6
It is not clear exactly when Pack alleges his detention became illegal. His brief is
equivocal on this point, and at oral argument, his counsel suggested that it might have
become illegal after the license checks were completed at 8:49 a.m., after the criminal
history checks were completed at 9:05 a.m., or after the vehicle’s registration was confirmed
at 9:10 a.m. Because Pack did not clearly present arguments in favor of one time over any
of the others, we will presume he asserts that his detention became illegal at 9:10 a.m.,
after the last of Worley’s computer checks was completed. See Sanders v. Unum Life Ins.
Co. of Am., 553 F.3d 922, 926 (5th Cir. 2008) (“‘A party waives an issue if he fails to
adequately brief it’ on appeal.” (quoting Audler v. CBC Innovis Inc., 519 F.3d 239, 255 (5th
Cir. 2008)). Cf. Brigham, 382 F.3d at 508 (holding that an officer may run computer checks
as part of his investigation of the circumstances that originally caused him to stop a
vehicle).
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No. 08-41063
second part of the Terry inquiry, because Pack contends that the facts that
emerged during Worley’s investigation could not have created reasonable
suspicion that Pack was engaged in drug trafficking.
A. Questioning a Passenger Who Has Committed No Violation
In his brief, Pack argues that “It is unclear whether a state trooper who
makes a traffic stop has the authority to require any and all passengers in that
car to identify themselves and then run a computer check on passengers.” He
also asserts that it is unclear “whether an officer can question a passenger who
has committed no violation.”
Pack’s primary support for these arguments is Judge DeMoss’s concurring
opinion in Grant. 349 F.3d at 199 (DeMoss, J., concurring) (“I note particularly
that [the defendant] did not raise as an issue on appeal, and my colleagues did
not decide, whether a state trooper who makes a traffic stop has the authority
to require any and all passengers in that car to identify themselves and then run
a computer check on those passengers . . . .”). While this uncertainty arguably
may have existed at the time Judge DeMoss wrote his special concurrence in
Grant, the Government contends that it has since been dispelled by our more
recent en banc opinion in United States v. Brigham, in which we stated that,
“within the legitimate scope of the stop were the registration and license checks
that [the police officer] . . . initiated on the vehicle and its occupants.” Brigham,
382 F.3d at 509. We agree with the Government that this language settled the
issue of whether or not it was permissible to ask a passenger like Pack to
identify himself and to run computer checks on his driver’s license and
background.
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No. 08-41063
Nor is there any merit to Pack’s suggestion that it may have been
improper for Worley to question him in order to verify the information that had
been provided by Williamson. In Brigham, we stated that “An officer may . . .
ask about the purpose and itinerary of a driver’s trip during [a] traffic stop.” Id.
at 508. We also stated that “the Fourth Amendment permits ‘[a] police officer
[to] undertake similar questioning of the vehicle’s occupants to verify the
information provided by the driver.’” Id. (quoting United States v. Linkous, 285
F.3d 716, 719 (8th Cir. 2002)) (brackets in original).
Therefore, we find that Pack’s arguments concerning the propriety of
Worley’s questioning and computer checks were foreclosed by our en banc
opinion in Brigham.
B. Reasonable Suspicion
The central issue in this appeal is whether or not Worley had reasonable
suspicion that Pack was engaged in criminal activity before Worley’s routine
computer checks were completed. The Government argues that reasonable
suspicion was created by (1) Pack’s extreme nervousness, (2) Pack’s conflicting
story, and (3) the fact that Pack was traveling along a drug trafficking corridor.
Pack does not address whether or not there was reasonable suspicion in
any detail in his brief. Instead, his brief focuses mostly on the timing of his
detention. However, he does argue in his brief that our opinion in United States
v. Jones, 234 F.3d 234 (5th Cir. 2001), indicated that inconsistent stories were
insufficient to create reasonable suspicion. He also discusses in detail our
opinion in United States v. Dortch, 199 F.3d 193 (5th Cir. 1999), arguing that the
decision is “instructive” in resolving his case. At oral argument, Pack contended
that our opinion in United States v. Santiago, 310 F.3d 336 (5th Cir. 2003),
stands for the proposition that inconsistent stories cannot create reasonable
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No. 08-41063
suspicion by themselves and that our opinion in Dortch established that a
combination of extreme nervousness and inconsistent stories is insufficient to
create reasonable suspicion of drug trafficking. Before we examine these
arguments in depth, it is helpful to review the general principles we use in
determining whether or not “reasonable suspicion” exists.
1. General Principles of Reasonable Suspicion
“Reasonable suspicion exists when the detaining officer can point to
specific and articulable facts that, when taken together with rational inferences
from those facts, reasonably warrant the . . . seizure.” United States v. Estrada,
459 F.3d 627, 631 (5th Cir. 2006). Reviewing courts making reasonable
suspicion determinations “must look at the totality of the circumstances of each
case to see whether the detaining officer has a particularized and objective basis
for suspecting legal wrongdoing.” United States v. Arvizu, 122 S.Ct. 744, 750
(2002) (internal quotation marks omitted). In evaluating whether or not an
officer’s suspicion is reasonable, “due weight must be given . . . to the specific
reasonable inferences which he is entitled to draw from the facts in light of his
experience.” Terry, 88 S.Ct. at 1883. “Although an officer’s reliance on a mere
hunch is insufficient to justify a stop, the likelihood of criminal activity need not
rise to the level required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard.” Arvizu, 122 S.Ct. at 751
(internal citations and quotation marks omitted).7
7
Probable cause exists where the facts and circumstances within an officer’s
knowledge and of which he had reasonably trustworthy information are sufficient in
themselves to warrant a man of reasonable caution in the belief that an offense has been or
is being committed and that evidence bearing on that offense will be found in the place to
be searched. Safford Unified Sch. Dist. No. 1 v. Redding, 129 S.Ct. 2633, 2639 (2009).
“The probable cause requirement does ‘not demand any showing that such a belief is correct
or more likely true than false.’” United States v. Antone, 753 F.2d 1301, 1304 (5th Cir.
16
No. 08-41063
2. Reasonable Suspicion in Dortch
Pack contends that our opinion in Dortch established that extreme
nervousness and inconsistent stories are not enough to create reasonable
suspicion of drug trafficking. This argument implies that a police officer’s
reasonable suspicion must be directed toward a particular crime. While we
agree that Dortch essentially stands for what Pack argues it does, we think that
the portions of Dortch on which Pack would have us rely were abrogated by our
en banc opinion in Brigham. Therefore, we decline to use Dortch to analyze
Pack’s case.
In Dortch, the defendant was stopped by the police for tailgating the
vehicle in front of him. 199 F.3d at 195. The police determined that the
defendant’s vehicle was rented and that the rental papers did not list either the
defendant or his passenger as an authorized driver. Id. The defendant and the
passenger gave conflicting answers about their relationship to the person the
rental agreement named as being the authorized driver. Id. at 196. Although
the defendant claimed to have spent the last two days in Houston, the rental
papers revealed to the police that the car had been rented the day before the stop
in Pensacola, Florida. Id. The police also noted that the defendant seemed
nervous. Id. at 199. Based on these observations, the police called a canine unit
to the scene and, in waiting for it to arrive, detained the defendant beyond the
time needed to investigate the initial traffic offense. See id. at 196. When the
1985) (quoting Texas v. Brown, 103 S.Ct. 1535, 1543 (1983)). See also, e.g., Haggerty v.
Texas Southern University, 391 F.3d 653, 656 (5th Cir. 2004) (probable cause “requires
more than a bare suspicion but less than a preponderance of evidence”); United States v.
Watson, 273 F.3d 599, 602 (5th Cir. 2001) (same); United States v. Garcia, 179 F.3d 265,
269 (5th Cir. 1999) (probable cause “is something more than bare suspicion, but need not
reach the fifty percent mark.”).
17
No. 08-41063
canine unit arrived, the police found drugs on the defendant’s person. Id. at 196.
The defendant moved to suppress this evidence on Fourth Amendment grounds,
and the district court denied his motion.
On review, a panel of this court reversed, with one judge dissenting. Id.
at 203. The panel held that detaining the defendant beyond the time needed to
run routine checks to investigate the initial traffic infraction was a violation of
his constitutional rights, because there had been no reasonable suspicion that
he was trafficking in drugs. Id. at 199. The panel held that the suspicious facts
the police had observed “gave rise only to a reasonable suspicion that the car
might have been stolen,” not that the defendant was trafficking in drugs. Id. In
other words, the panel in Dortch held (1) that in order to detain a suspect
pending the arrival of a canine unit, the police had to have reasonable suspicion
that the suspect was engaged in drug trafficking, and (2) that nervousness,
inconsistent stories, and a rental car that was being driven without its
authorized driver did not add up to reasonable suspicion of drug trafficking.
It is hard to reconcile our en banc opinion in Brigham with the panel’s
holding in Dortch. See Brigham, 382 F.3d at 517 (DeMoss, J., dissenting);
Charles F. Baird & Holly L. Black, Criminal Procedure—Fourth Amendment, 37
Tex. Tech. L. Rev. 729, 747 (2005) (“Judge Jones confessed in her dissent to the
panel opinion [in Brigham] that she believed Dortch, Jones, and Santiago were
wrongly decided and should be overruled. As the author for the en banc’s
majority opinion, she essentially accomplished her desired result.”). The factual
situation in Brigham was very similar to Dortch’s. In Brigham, the defendant
was stopped for tailgating a vehicle. 382 F.3d at 504. The defendant’s vehicle
was a rental car that he was not authorized to drive, and the authorized driver
18
No. 08-41063
was not one of the passengers. Id. The defendant appeared to be extremely
nervous, and the police received inconsistent stories when they questioned the
occupants of the vehicle. Id. at 504–05. The police did not run their routine
computer checks until after the occupants had been questioned at some length.
See id. The checks revealed that one of the passengers had given the police a
fake identification card and a false name. Id. at 505. Due to the length of the
questioning that took place before the routine computer checks were run, the
total detention exceeded the time needed to investigate the initial traffic
infraction. See id. A search of the vehicle produced illegal narcotics. Id. The
defendant moved to suppress the evidence on Fourth Amendment grounds, and
the district court denied the motion. Id. On appeal, a panel of this court
reversed, holding that the defendant’s Fourth Amendment rights had been
violated, because the police had detained him beyond the time needed to
investigate the traffic infraction by questioning him at length about matters not
directly related to the traffic infraction before running their routine computer
checks. Id. at 505–06.
We reviewed the panel decision en banc and affirmed the district court.
Id. at 512. Our en banc opinion characterized Dortch as having established only
that the police could not detain the occupants of a vehicle beyond the time
needed to investigate the initial traffic violation unless there was reasonable
suspicion of additional criminal activity. See id. at 509–10. We then held that
the Fourth Amendment did not require the police to initiate their routine checks
before asking basic questions of the occupants of a vehicle. Id. at 508, 511. We
also noted that the passengers’ conflicting answers to these basic questions,
which caused the questioning to become so lengthy, had been beyond the
investigating officer’s control. Id. at 510. As Judge DeMoss noted in his
19
No. 08-41063
dissenting opinion, we did not expressly address Dortch’s requirement that the
police have reasonable suspicion of a specific crime in order to justify a
detention. See id. at 517 (DeMoss, J., dissenting) (“[T]he detention’s scope must
be strictly tied to the particularized suspicion justifying the detention in the first
place. Dortch, 199 F.3d at 199. The majority openly disregards these
requirements and simply concludes that [the police] had reasonable
suspicion—but never says of what.”). Instead, we found that the actions taken
by the police “were reasonable under the circumstances and the detention as a
whole was reasonable. . . . ‘[t]he absence of the authorized driver, the
inconsistent explanation as to the trip to Houston, and {the passenger’s}
presentation of a fictitious I.D., taken together, justified {the police officers’}
continued detention of the defendants.’” Brigham, 382 F.3d at 509 (material in
brackets original; material in braces added). The en banc majority did not
contest the dissent’s assertion that it had ignored Dortch’s requirement of
“particularized suspicion” of a specific crime. See id. at 507–12.
In Dortch, similar facts8 had not been sufficient to establish reasonable
suspicion that justified detaining the defendant. Instead, the Dortch panel had
held that its facts suggested only that the vehicle had been stolen, not that the
defendant was trafficking in drugs. See Dortch, 199 F.3d at 199. Therefore, the
Dortch majority had reasoned, the defendant should have been released after the
routine computer checks revealed that the vehicle had not been stolen. Id. In
Brigham, however, we held that similar facts allowed the police to investigate
8
The only notable difference between the facts articulated as the bases for the
officers’ suspicions in Dortch and Brigham was the use of a fake driver’s license in Brigham.
This cannot account for the difference in the outcomes of the two cases, because the use of a
fake driver’s license could not have provided any additional “particularized suspicion” of
drug trafficking under the logic of Dortch.
20
No. 08-41063
not only the stolen car theory, but also the possibility that the occupants were
carrying contraband. See Brigham, 382 F.3d at 509 & n.8. It did not matter
that there was no direct evidence that suggested the occupants were carrying
contraband. See id. The facts suggested that something illegal was afoot, so the
police were entitled, as long they acted with reasonable diligence, to pursue
several plausible theories in attempting to resolve the suspicion that reasonably
had been created by the absence of the authorized driver, the inconsistent
stories, the nervousness, and the presentation of a fake identification card. See
id. As Judge DeMoss noted in his dissent, the majority reached its finding of
reasonable suspicion in Brigham by discarding Dortch’s requirement of
“particularized suspicion” of a specific crime. See Brigham, 382 F.3d at 517
(DeMoss, J., dissenting). Therefore, we hold that Brigham should be read as
having abrogated Dortch’s requirement of “particularized suspicion” of a specific
crime, in the sense of something like or generally equivalent to direct evidence
of a particular, specific offense.9
Authority from other circuits supports the finding of reasonable suspicion
in the absence of something like or generally equivalent to direct evidence of a
specific particular crime. In United States v. Vasquez, the Tenth Circuit held
that “objectively reasonable, articulable suspicion of some illegal activity beyond
the traffic violation” existed (emphasis added), warranted the detention of a
9
While the Dortch majority never used the phrase “direct evidence” in its opinion,
we think this is the key difference between its reasoning and the reasoning of our en banc
majority in Brigham. If the police in Dortch had noticed drug paraphernalia on the
floorboard of the vehicle or smelled the odor of narcotics when the driver rolled down his
window, the Dortch majority likely would have found that there was reasonable suspicion
of drug trafficking, just as it found that there was reasonable suspicion of car theft based on
the fact that the authorized driver of the vehicle was not present.
21
No. 08-41063
vehicle’s driver pending the arrival of a canine unit, where the driver had a
traffic citation in his name from another state which reflected his driver’s license
number but did not have his driver’s license itself, the vehicle’s registration was
not in his name, and he stumbled over questions about his alleged girlfriend.
555 F.3d 923, 929 (10th Cir.), cert. denied, 130 S.Ct. 263 (2009). In United States
v. Ehrmann, the Eighth Circuit held that there was “‘a reasonably articulable
suspicion for believing’ criminal activity [was] afoot” that justified detaining the
occupants of a vehicle pending the arrival of a canine unit where the passenger
did not look up from his computer when the officer approached the car, the
driver claimed to be driving from Dallas to Phoenix with no purpose other than
“to hang out,” the driver was vacationing during a time he claimed to be
unemployed, the driver initially consented to a search but then reneged on the
ground that the police needed to ask his passenger for permission to search, the
passenger was squirming and trembling with nervousness, and the passenger’s
eyebrow twitched when he was asked if he was transporting drugs. 421 F.3d
774, 780–81 (8th Cir. 2005) (quoting United States v. Beck, 140 F.3d 1129, 1134
(8th Cir. 1998)).
We also note that Brigham’s approach seems to be more consistent with
the Supreme Court’s opinions than Dortch’s above referenced “particularized
suspicion” of a specific crime requirement was. While the Court clearly requires
the police to be able to articulate a “particularized . . . basis” for suspecting
wrongdoing, it has often spoken of the wrongdoing itself in general terms.
Arvizu, 122 S.Ct. at 750. In Brown v. Texas, 99 S.Ct. 2637 (1979), the Court
stated that it “required . . . officers to have a reasonable suspicion, based on
objective facts, that the individual [detained for questioning] is involved in
criminal activity.” Id. at 2641. The Court faulted the police in Brown for stating
22
No. 08-41063
that the situation in an alley “looked suspicious” but being “unable to point to
any facts supporting that conclusion.” Id. This suggests that the Court would
have upheld the detention in Brown if the police had been able to articulate
specific facts that supported their belief that there was something illegal afoot
in the alley, even if they could not link those facts to a particular specific crime.
Another example is found in United States v. Arvizu, where the Court stated
that “the Fourth Amendment is satisfied if the officer’s action is supported by
reasonable suspicion to believe that criminal activity may be afoot . . . .” 122
S.Ct. at 750 (internal quotation marks omitted). Requiring police to have
particularized facts that support a finding that “criminal activity may be afoot”
is different from requiring the police to articulate particularized facts that
support a finding that a particular specific crime is afoot. We think the latter
approach, as in Dortch’s, referenced “particularized suspicion” requirement, goes
beyond reasonable suspicion by in substance virtually requiring direct evidence
or the substantial equivalent thereof and imposes a requirement that is too close
to probable cause. Cf. United States v. Sokolow, 109 S.Ct. 1581, 1585 (1989)
(“We have held that probable cause means ‘a fair probability that contraband or
evidence of a crime will be found,’ and the level of suspicion required for a Terry
stop is obviously less demanding than that for probable cause.” (quoting Illinois
v. Gates, 103 S.Ct. 2317, 2332 (1983)) (internal citations omitted)).
We note that some of our panel opinions after Brigham contain language,
essentially dicta, seemingly endorsing the Dortch version of “particularized
suspicion” in situations where there was not established reasonable suspicion of
any sort of criminal conduct which further on the spot investigation might clear
up. See United States v. Jenson, 462 F.3d 399, 405 (5th Cir. 2006) (“. . . the
23
No. 08-41063
government does not present adequate evidence of a nexus between Jenson’s
allegedly suspicious behavior and any specific criminal activity.”); United States
v. Cavitt, 550 F.3d 430, 438 (5th Cir. 2008) (“[T]he Government must establish
some nexus between a specific criminal activity and [the defendant’s]
questionable license and ambitious itinerary.”).10 We do not view that dicta in
these opinions as binding precedent to the extent that their language might be
read to require that police have “particularized suspicion” based on essentially
direct evidence of a particular specific crime in order to form the “reasonable
suspicion” needed to justify a detention. We conclude that Brigham is to the
contrary on that matter.
However, our holding that Brigham abrogated Dortch’s “particularized
suspicion” requirement does not allow police officers to detain an individual
indefinitely, fishing for evidence of every conceivable crime that might explain
the suspicious facts they articulate as having created their reasonable suspicion.
This limitation follows from the fact that both the length of the detention and the
scope of the investigation to be conducted which may justify the detention
remain subject to a “reasonableness” requirement under Brigham and Supreme
Court precedent. See Ohio v. Robinette, 117 S.Ct. 417, 421 (1996) (“We have long
held that the ‘touchstone of the Fourth Amendment is reasonableness.’” (quoting
Florida v. Jimeno, 111 S.Ct. 1801, 1803 (1991))); Brigham, 382 F.3d at 507 (“The
correct analysis requires district courts to consider the facts and circumstances
10
In contrast, United States v. Fishel, 467 F.3d 855 (5th Cir. 2006), is an example of
a panel opinion from this court written after Brigham that applied the Brigham analysis.
In Fishel, we found that extreme nervousness, an inconsistent story, and an expired
driver’s license created reasonable suspicion sufficient to detain the defendant pending the
arrival of a canine unit, despite the lack of any more direct evidence that he was trafficking
in drugs. Fishel, 467 F.3d at 856–57.
24
No. 08-41063
of each case . . . to determine whether the actions taken by the officers, including
the length of the detention, were reasonable under the circumstances.”). See also
Sharpe, 105 S.Ct. at 1575 (“[W]e consider it appropriate to examine whether the
police diligently pursued a means of investigation that was likely to confirm or
dispel their suspicions quickly, during which time it was necessary to detain the
defendant.”); Brigham, 382 F.3d at 506 (“Courts . . . inquire whether the officer’s
subsequent actions were reasonably related in scope to the circumstances that
justified the stop.”).
Therefore, while we interpret Brigham’s abrogation of Dortch’s
interpretation of the “particularized suspicion” requirement as indicating that
the police do not have to observe the equivalent of direct evidence of a particular
specific crime in order to detain a lawfully stopped individual to investigate
where there is reasonable suspicion of criminal activity on his part, we also hold
that Brigham requires both the scope and length of the officer’s investigation to
be reasonable in light of the facts articulated as having created the reasonable
suspicion of criminal activity. In order for the scope of an officer’s detention for
investigation to be reasonable in light of the facts having created the reasonable
suspicion, each crime he investigates should, if established, be reasonably likely
to explain those facts.11
11
Thus, under the facts of Brigham, it would have been unreasonable to detain the
defendant there to question him about, for example, possible criminal violations of the
Whaling Convention Act of 1949, 16 U.S.C.A. § 916 (2000) (Whaling Convention). This
would have exceeded the reasonable scope of the police officer’s investigation, even though
he had reasonable suspicion that criminal activity was afoot, because a criminal violation of
the Whaling Convention is one of the last crimes that a reasonable person would expect to
be a likely cause of the suspicious behavior in Brigham. That such an inquiry would also
violate Dortch’s version of the “particularized suspicion” requirement does not validate the
“particularized suspicion” approach, because Brigham’s reasonableness requirement is a
broader standard than Dortch’s “particularized suspicion” requirement. While every
25
No. 08-41063
To summarize, we interpret our en banc opinion in Brigham as having
returned this court’s approach to analyzing purported violations of the Fourth
Amendment to the status quo ante Dortch. After Brigham, we do not find that
a detention during a valid traffic stop violates the detainees’ Fourth Amendment
rights where it exceeds the amount of time needed to investigate the traffic
infraction that initially caused the stop, so long as (1) the facts that emerge
during the police officer’s investigation of the original offense create reasonable
suspicion that additional criminal activity warranting additional present
investigation is afoot, (2) the length of the entire detention is reasonable in light
of the suspicious facts, and (3) the scope of the additional investigation is
reasonable in light of the suspicious facts, meaning that it is reasonable to
believe that each crime investigated, if established, would likely explain the
suspicious facts that gave rise to the reasonable suspicion of criminal activity.
3. The Sufficiency of Inconsistent Statements
Pack argues that our opinions in Jones and Santiago established that
inconsistent stories are insufficient to create reasonable suspicion. Our opinions
in United States v. Estrada and United States v. Gonzalez contain dicta that
support this argument. Estrada, 459 F.3d at 631; Gonzalez, 328 F.3d 755, 758
(5th Cir. 2003). Nevertheless, we find that this argument is without merit, (1)
because Pack’s inconsistent story is not the only factor that Worley cited as
having caused him to suspect that Pack was engaged in criminal activity, (2)
because we believe that these cases rely on the portion of Dortch that we have
held was abrogated by our en banc opinion in Brigham, and (3) because the
violation of Brigham’s reasonableness requirement would also violate Dortch’s
“particularized suspicion” requirement, not every violation of Dortch’s “particularized
suspicion” requirement would violate Brigham’s reasonableness requirement.
26
No. 08-41063
inconsistent stories of Pack and Williamson here are properly distinguished from
the minor or irrelevant inconsistencies found in the cases Pack would have us
follow.
The Supreme Court requires lower courts to look at “the totality of the
circumstances” in evaluating whether or not the police had reasonable suspicion
of criminal activity. Arvizu, 122 S.Ct. at 750. The Court has interpreted this
requirement as prohibiting the method of “divide-and-conquer analysis,” under
which a court examines and rejects individually each of a number of factors that
the police cite as having created reasonable suspicion, instead of examining the
factors jointly. See id. at 751. Thus, it is improper for a court to refuse to find
that reasonable suspicion existed because each of a set of circumstances has an
innocent explanation. See id. The proper question is whether or not the entire
set of circumstances, taken together, created reasonable suspicion of criminal
activity. See id.
The Government does not allege that the only circumstance that created
reasonable suspicion in Worley’s mind was Pack’s inconsistent story. It alleges
that Pack’s extreme, physically manifested, nervousness, his and Williamson’s
conflicting stories, and the fact that he and Williamson were traveling along a
drug trafficking corridor combined to form reasonable suspicion in Worley’s
mind.
Moreover, in Jones and Santiago, panels of this court found that there was
no reasonable suspicion of drug trafficking after applying Dortch’s version of the
“particularized suspicion” approach, comparing the facts of their cases against
the facts of Dortch, and concluding that the facts in Dortch had been more
suspicious. See Jones, 234 F.3d at 241 (“In Dortch, we found no reasonable
suspicion of drug trafficking . . . . Compared to the facts in Dortch, [the police
27
No. 08-41063
officer’s] bases for reasonable suspicion in this case are even less suggestive of
reasonable suspicion and are at best trivial.”); Santiago, 310 F.3d at 342 (citing
Dortch for the proposition that “conflicting stories from the driver and passenger
about from where they traveled and the fact that neither were [sic] listed as
authorized drivers on the rental agreement and the driver’s nervousness did not
give rise to reasonable suspicion of drug trafficking to support a continued
detention after the completion of a computer check”). Because the more
suspicious facts of Dortch had not been enough to establish reasonable suspicion
of drug trafficking in Dortch, the panels in Jones and Santiago found that the
evidence was necessarily insufficient to establish reasonable suspicion of drug
trafficking in their cases. See Jones, 234 F.3d at 241; Santiago, 310 F.3d at 342.
However, as noted, that aspect of Dortch was abrogated by our en banc opinion
in Brigham.
Our opinions in Estrada and Gonzalez contain dicta stating that “[m]ere
‘uneasy feelings’ [on the part of the police] and inconsistent stories between a
driver and a passenger do not constitute articulable facts that support a
reasonable suspicion of drug trafficking.” See Estrada, 459 F.3d at 631;
Gonzalez, 328 F.3d at 758. However, this language was derived from our holding
in Santiago. See Estrada, 459 F.3d at 631 (citing Santiago, 310 F.3d at 338–39);
Gonzalez, 328 F.3d at 758 (citing Santiago, 310 F.3d at 338–39). Therefore, it
was indirectly based on Dortch and also fails to survive Brigham as a correct
statement of law.
Additionally, we note that the inconsistencies in the defendants’ stories in
Jones, Santiago, and Estrada were all relatively minor, compared to the
28
No. 08-41063
inconsistencies between Pack’s and Williamson’s stories.12 In Jones, the driver
of the stopped vehicle indicated that his passenger was his uncle and that they
were going to Memphis for “a couple of weeks” to do some work for “Street
Institute Records.” 234 F.3d at 237. In response to similar questioning, the
passenger indicated that the driver was his son-in-law’s brother and that they
were going to Memphis for “about a week” to promote an album produced by
“Sage Stone Entertainment.” Id. The driver and the passenger offered to show
the police proof that Sage Stone Entertainment and Street Institute Records had
collaborated on the album, but the police refused to read the album’s label. Id.
at 238. The driver also clarified later in his questioning that his passenger was
really his brother’s father-in-law. Id. Such inconsistencies were minor and
reconcilable. It made sense that a person might refer to his brother’s father-in-
law as an uncle. It also made sense that two studios would collaborate on the
same album. The discrepancy in the amount of time the two planned to be in
Memphis might have resulted from a misunderstanding, from the fact that they
had not set a firm schedule, or from the fact that the actual time was something
like ten days.
In Santiago, the defendant indicated that the woman and two children in
the stopped vehicle were his wife and children. 310 F.3d at 338. When he was
12
The inconsistencies in Gonzalez were major, and they played a large role in
establishing the reasonable suspicion that we found had existed in that case. See 328 F.3d
at 757–58. Nevertheless, the Gonzalez panel cited Santiago for the proposition that it
would not have been proper to find reasonable suspicion based on the inconsistent
statements alone. See id at 758. Instead, it found that there was reasonable suspicion
based on a combination of factors: “Gonzalez appeared very nervous, was hesitant in
answering the most basic questions about his travel plans, lied about why he didn’t have a
driver’s license, was 500 miles away from the road leading to his claimed destination, was
on a road associated with drug trafficking, and had been arrested for drug trafficking in the
past.” See id. Gonzalez, like Santiago and Jones, was decided before Brigham.
29
No. 08-41063
confronted with the fact that his name was listed on the vehicle’s registration
along with the name of a different woman, the defendant looked extremely
surprised and attempted to convince the police that the passenger was his ex-
wife and that the woman on the vehicle’s registration was his current wife. Id.
at 339. The defendant claimed that they were going to Atlanta for a week, while
the woman in the vehicle claimed that they were going to Atlanta for two or
three weeks. Id. at 338. The vehicle had California license plates and was
stopped in Louisiana. Id. at 337–38. While the inconsistencies in Santiago were
more serious than those in Jones, they were still reasonably reconcilable. It was
possible that the defendant was telling the truth about the identity of the woman
in his car. It was also possible that the discrepancy in the group’s travel dates
was due to a mis-communication or due to the woman including the driving time
from California to Atlanta in her estimate of how long the group would be “in
Atlanta.”
Estrada contains an archetypical example of a minor inconsistency. The
owner of the stopped vehicle stated that he had bought the vehicle a month
before the stop occurred, and the owner’s brother said he thought the owner had
bought it three months before the stop. Estrada, 459 F.3d at 629. It was
entirely reasonable for someone who did not own the vehicle not to know when
his brother had bought it.
The inconsistencies in Jones, Santiago and Estrada were simply too minor
and insignificant to give rise to any reasonable suspicion of any criminal activity.
In contrast to the inconsistencies in Santiago, Jones, and Estrada, the
inconsistencies between Pack’s and Williamson’s stories were neither
reconcilable nor minor. Among other things, the two could not agree on which
major city (many miles apart) they had spent the last several days visiting or
30
No. 08-41063
whom they had visited there. As the video of the stop recorded Worley telling
Williamson, their stories were “completely different.” Therefore, neither Jones,
Santiago nor Estrada can be applied properly to the situation in Pack’s case.
Finally in this connection, we note that under Texas law it is a crime to,
with intent to deceive, knowingly make a material, false statement to an
investigating officer. Section 37.08 of the Texas Penal Code provides that:
“(a) A person commits an offense if, with intent to deceive, he
knowingly makes a false statement that is material to a criminal
investigation and makes the statement to:
(1) a peace officer conducting the investigation; or
(2) any employee of a law enforcement agency that is
authorized by the agency to conduct the investigation and that the
actor knows is conducting the investigation.
***
(c) An offense under this section is a Class B misdemeanor.” Tex.
Pen. Code Ann. § 37.08 (Vernon 2003).
A traffic stop is a criminal investigation, and speeding is an arrestable offense.
Tex. Transp. Code Ann. § 543.001 (Vernon 1999). See Atwater v. City of Lago
Vista, 121 S.Ct. 1536, 1541 (2001). Because making a material, false statement
during the investigation of a traffic stop is itself a crime under Texas law, it is
hard to argue that an officer would not have reasonable suspicion of criminal
activity when confronted with a statement reasonably viewed as false and
material to his investigation of a traffic violation.
To summarize, we decline to hold that the inconsistent stories in Pack’s
case do not suffice to create a reasonable suspicion of criminal activity for three
reasons. First, the Government relies on a combination of several factors to
establish reasonable suspicion rather than on the inconsistent stories alone.
Second, the cases that held that inconsistent stories were insufficient relied on
31
No. 08-41063
the Dortch version of “particularized suspicion” and thus were abrogated by
Brigham. Third, we find that the inconsistencies in the cases that found no
reasonable suspicion because the conflicting stories were an insufficient basis,
involved essentially minor inconsistencies which were not as serious or so likely
intentionally deceptive as those found in Pack’s case.
4. Reasonable Suspicion in Pack’s Case
It is undisputed that Worley detained Pack beyond the time needed to
investigate the speeding infraction that caused Worley to stop Williamson’s
vehicle. Worley’s final computer check was completed at 9:10 a.m., and the
canine unit did not arrive until 9:18 a.m. Therefore, in order for this detention
to have been legal, we must conclude that the facts Worley articulated as the
basis for his suspicion that criminal activity was afoot were observed by 9:10
a.m. and were sufficient to make his suspicion of criminal activity reasonable.
We must also conclude that the length of the detention and the scope of Worley’s
investigation were reasonable in light of the facts creating the reasonable
suspicion criminal activity.
At the hearing on Pack’s motion to suppress, Worley testified that, by 8:51
a.m., Pack’s extreme nervousness, Pack’s and Williamson’s conflicting stories,
and the fact that the two were traveling along a drug trafficking corridor already
had caused Worley to suspect that they were engaged in criminal drug activity.
Worley’s suspicion is entitled to significant weight, because he had been a law
enforcement officer for seventeen years. See Arvizu, 122 S.Ct. at 750–51
(“[O]fficers . . . draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available to
them that ‘might well elude an untrained person.’” (quoting United States v.
Cortez, 101 S.Ct. 690, 695 (1981))). As we noted above, the fact that likely both
32
No. 08-41063
of the vehicle’s occupants were lying to Worley may have been criminal activity
itself under Texas law. We also note, though it was not cited by Worley, that
Pack’s suspended license could have contributed to Worley’s reasonable
suspicion of criminal activity, since licenses are usually suspended for less than
law abiding conduct. Furthermore, by 9:10 a.m., Pack had admitted to prior
arrests for theft and fighting. Based on the totality of these circumstances, we
hold that it was reasonable for Worley to suspect that criminal activity
warranting further investigation was afoot.
We also hold that the length of the entire detention was reasonable in light
of the suspicious facts that Worley had observed. The police must diligently
pursue a means of investigation that is likely to confirm or dispel their
suspicions quickly. Sharpe, 105 S.Ct. at 1575. In this case, Worley discovered
the marihuana and the pistol within thirty-five minutes of stopping Williamson’s
vehicle. He initially tried to resolve his suspicion by requesting permission to
search the vehicle. When Williamson denied him permission, he immediately
called for a canine unit. When dispatch informed Worley that it would take
forty-five minutes for the DPS canine unit to arrive, he cancelled the request and
called in the Hopkins County unit instead. This shortened the detention by
twenty-five minutes and resulted in a delay of only eight minutes between the
completion of the last of Worley’s routine checks and the arrival of the canine
unit. In view of the suspicious facts that Worley had observed, this short delay
was reasonable, and it did not render the length of the entire detention
unreasonable.
Finally, we hold that the scope of the investigation that Worley conducted
during the detention was reasonable in light of the suspicious facts he had
observed. When the occupants of a vehicle are nervous and tell such
33
No. 08-41063
irreconcilable stories to the police, the number of likely explanations for their
conduct is limited. Computerized license, registration, and warrant checks
quickly explore the possibility that the vehicle is stolen or that its occupants are
fugitives from justice. Considering the large volume of contraband that is moved
along our major highways on a daily basis, especially in border states like Texas,
a reasonable officer could fairly conclude that the most likely single alternative
explanation, for the nervousness and irreconcilable stories raising reasonable
suspicion of some criminal activity, is that the occupants are carrying
contraband, particularly when the stop occurs on a highway that is frequently
used by smugglers. Therefore, we think that it is reasonable for an officer
confronted with such conduct to detain the occupants for a reasonable amount
of time to investigate the possibility that they are carrying contraband. Worley
testified that Pack’s extreme nervousness, the irreconcilable stories, and the
location of the stop immediately caused him to suspect drug activity.
Accordingly, he investigated the possibility that Pack and Williamson were
smuggling drugs by requesting permission to search their vehicle and calling in
a canine unit when permission was denied. We hold that Worley’s decision to
investigate the possibility of drug trafficking was reasonable, because drug
trafficking provided a reasonably likely explanation for the suspicious facts that
he had observed.
The facts Worley observed during his investigation of Williamson’s
speeding offense created reasonable suspicion that additional criminal activity
was afoot, and the length of the entire detention and the scope of his
investigation were reasonable in light of the suspicious facts he had observed.
Therefore, we hold that Pack’s Fourth Amendment rights were not violated by
Worley’s decision to detain him beyond the brief time needed to investigate
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No. 08-41063
Williamson’s speeding violation.
CONCLUSION
Assuming arguendo that Pack asserted a relevant violation of his Fourth
Amendment rights when he moved to suppress the evidence found in
Williamson’s vehicle, we hold that the undisputed evidence addressed at the
hearing on Pack’s motion as a matter of law reflects that the detention to which
he objected was legal. Therefore, his Fourth Amendment rights were not
violated, and the district court did not err in denying his motion to suppress.
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED.
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No. 08-41063
DENNIS, Circuit Judge, dissenting:
In denying the motion to suppress evidence, the district court
committed three legal errors: (1) It erred in deciding that the defendant,
Kevin Andrew Pack, II (“Pack”), lacked standing to challenge his prolonged
detention by the police officer because Pack was merely a guest passenger in
the vehicle; (2) Because of its error on standing, the district court also erred
in failing to decide whether the officer had a reasonable articulable basis to
suspect Pack of a crime that warranted further investigation and justified
Pack’s continued detention; and (3) The district court erred in concluding
that, in any event, Pack could not move to suppress the evidence derived from
his prolonged detention because he did not prove a “nexus” between his
detention and the evidence. Therefore, the district court’s judgment, denying
the motion to suppress, should be vacated, and the case should be remanded
for further determinations, including: (a) “Reasonable suspicion”: a
determination of whether the officer had a reasonable articulable basis to
suspect Pack of a crime that justified his prolonged detention; and, if
necessary, (b) “Fruit of the poisonous tree”: If the officer lacked such
reasonable suspicion, whether the evidence was “fruit” of the unlawful
detention.
The majority errs by affirming rather than vacating the district court’s
judgment, and by failing to remand the case for a determination of whether
there was “reasonable suspicion” for the prolonged detention and, if
necessary, whether the evidence was fruit of the unlawful detention.
Additionally, the majority errs by usurping the district court’s functions by
assessing witness credibility, finding facts, and inferring reasonable
suspicion. It also errs in misinterpreting and misapplying circuit precedents,
including United States v. Brigham, 382 F.3d 500 (5th Cir. 2004) (en banc),
and United States v. Dortch, 199 F.3d 193 (5th Cir. 1999), which, if correctly
36
No. 08-41063
followed, would require a different result even on the facts improperly found
by the majority.
For these reasons, I respectfully dissent.
I.
Each of the district court’s foregoing errors of law is discussed below.
They originated in the magistrate judge’s Modified Report and
Recommendation and were adopted without change by the district court.
A.
First, the district court concluded that Pack did not have standing to
challenge the constitutionality of the vehicle’s search because he was merely a
guest passenger in the vehicle in which the marijuana and pistol were later
found. As Pack states in his motion to suppress, he contests not only the
search of his luggage in the vehicle’s trunk, but also the “stop and detention”
of his person, which he argues led to the search of the vehicle and the
discovery of the challenged evidence. The Supreme Court, in Brendlin v.
California, held that “[w]hen a police officer makes a traffic stop, the driver of
the car is seized within the meaning of the Fourth Amendment . . . [and] a
passenger [therein] is seized as well and so may challenge the
constitutionality of the stop.” 551 U.S. 249, 251 (2007). The Court stated that
this conclusion “comports with” the view that: “If either the stopping of the
car, the length of the passenger’s detention thereafter, or the passenger’s
removal from it are unreasonable in a Fourth Amendment sense, then surely
the passenger has standing to object to those constitutional violations and to
have suppressed any evidence found in the car which is their fruit.” Id. at
258-59 (quoting 6 Wayne R. LaFave, Search and Seizure § 11.3(e), at 194-95
& n.277 (4th ed. 2004 & Supp. 2007)). Therefore, Pack had standing to object
to the length of his detention as a constitutional violation and to have the
37
No. 08-41063
evidence found in the vehicle suppressed if it was a fruit of that invalid
detention.
The district court apparently read Brendlin as holding that a passenger
only has standing to challenge the constitutionality of the traffic stop itself
and lacks standing to contest the prolonged detention of his person. However,
this is plainly contradicted by the above-quoted text from Brendlin, that a
passenger may challenge “the length of the passenger’s detention” following a
stop. 551 U.S. at 259. Thus, under Brendlin, Pack has standing to contend
that his prolonged detention after the stop was unlawful because it was not
based on an articulable reasonable suspicion of a crime and to have
suppressed any evidence that is the fruit of that unconstitutional detention.
Therefore, the district court’s erroneous determination of the scope of Pack’s
standing should have been rejected and, as its judgment stemmed from this
error, its ruling should have been vacated.
B.
Second, because the district court mistakenly decided that Pack did not
have standing to challenge the length of his detention after the stop, the
district court erred by failing to determine whether the officer justifiably
prolonged Pack’s detention. “The stopping of a vehicle and detention of its
occupants constitutes a ‘seizure’ under the Fourth Amendment.” Brigham,
382 F.3d at 506. “This court, following the Supreme Court, has treated
routine traffic stops, whether justified by probable cause or a reasonable
suspicion of a violation, as Terry stops.” Id. (citing Berkemer v. McCarty, 468
U.S. 420, 439 (1984); Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (per
curiam); Dortch, 199 F.3d at 198). “Pursuant to Terry, the legality of police
investigatory stops is tested in two parts. Courts first examine whether the
officer’s action was justified at its inception.” Id. (citing Terry v. Ohio, 392
38
No. 08-41063
U.S. 1, 19-20 (1968)). “Under the second prong of the Terry test, the question
before the court is whether [the officer’s] actions after he legitimately stopped
the [vehicle] were reasonably related to the circumstances that justified the
stop, or to dispelling his reasonable suspicion developed during the stop.” Id.
at 507.
Here, Pack did not challenge the initial stop of the vehicle for speeding.
However, it is undisputed that Pack’s detention lasted far longer than was
necessary for the officer to issue the driver a warning for speeding, his only
basis for the stop. Thus, because, as shown above, Pack had standing to
challenge his prolonged detention as unlawful, it is essential to a correct
disposition of this case for the district court to determine whether the
detention was “reasonably related . . . to dispelling [the officer’s] reasonable
suspicion developed during the stop.” Brigham, 382 F.3d at 507. See also id.
(“[A] detention must be temporary and last no longer than is necessary to
effectuate the purpose of the stop, unless further reasonable suspicion,
supported by articulable facts emerges.” (citing Dortch, 199 F.3d at 200;
United States v. Machuca-Barrera, 261 F.3d 425, 434 (5th Cir. 2001))).
The Supreme Court has said repeatedly that to make a “reasonable
suspicion” determination, a trial court must consider the “‘totality of the
circumstances’” to see whether the detaining officer has a “‘particularized and
objective basis’” for suspecting legal wrongdoing. United States v. Arvizu, 534
U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18
(1981)). This review enables “officers to draw on their own experience and
specialized training to make inferences from and deductions about the
cumulative information available to them that ‘might well elude an untrained
person.’” Id. (quoting Cortez, 449 U.S. at 418).
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No. 08-41063
As a result, the Supreme Court has made clear that the initial
determination of “reasonable suspicion” to support an officer’s actions must be
made by the “resident judge[],” viz., the motion court of first instance, and
that an appellate court reviewing the resident judge’s ruling must give “‘due
weight’” to that court’s “factual inferences.” Arvizu, 534 U.S. at 273-74
(quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)). See Murray v.
United States, 487 U.S. 533, 543 (1988) (“[I]t is the function of the District
Court rather than the Court of Appeals to determine the facts . . . .”); United
States v. Cole, 444 F.3d 688, 688 (5th Cir. 2006) (“Defendant Demetric Cole
appeals the denial of his motion to suppress drugs found in his vehicle
following a traffic stop. Because we are unable to resolve the legality of the
stop without additional fact finding, we vacate the district court’s order
denying Cole’s motion to suppress and remand for further proceedings.”).
Thus, the district court’s failure to reach the “reasonable suspicion” issue vel
non justifies vacating and remanding for further proceedings.
Yet the majority disregards Arvizu, Ornelas, and Cole, and makes its
own ab initio determination of “reasonable suspicion.” Accordingly, it usurps
the “resident judge’s” role as the initial arbiter of that primary question. The
majority asserts it can do so in this case because the district court implicitly
found, and the defendant conceded, facts supporting its inference of
reasonable suspicion. But the record simply does not support the majority’s
assertion or inference. The district court did not determine “reasonable
suspicion” or make any factual findings pertinent to such a determination.
The magistrate judge’s report adopted by the district court merely
summarizes the officer’s testimony without analyzing it for credibility and
reliability, or assessing how it impacted the totality of circumstances.
Further, the majority’s notion that Pack’s attorney conceded facts that
40
No. 08-41063
support the officer’s reasonable suspicion is refuted by both the attorney’s
recorded oral argument and her briefs. During oral argument she stated
repeatedly that no court had ever addressed the issue of reasonable suspicion.
Therefore there could be no factual findings or credibility determinations that
either support the Government’s argument or contradict Pack’s motion to
suppress. Likewise, in her brief, while Pack’s attorney acknowledged the
testimony of the arresting officer, she never agreed that the officer’s
testimony was credible, reliable, or sufficient to establish “reasonable
suspicion.” Thus, she did not concede the factual finding that would be
essential for an appellate court to adopt the allegations of the Government as
true and use them to determine whether there was reasonable suspicion.
Accordingly, the majority’s substitution of itself for the district court in
making the initial determination of “reasonable suspicion” is not supported by
the law or the record.1
C.
1
The cases the majority cites in its footnote 5 for the proposition that this court can
determine in the first instance whether there was reasonable suspicion do not actually
support such a rule. In United States v. Waldrop, 404 F.3d 365, 367 (5th Cir. 2005), United
States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999), United States v. Kye Soo Lee,
962 F.2d 430, 434-35 & n.16 (5th Cir. 1992), and United States v. Basey, 816 F.2d 980, 986-
87 (5th Cir. 1987), unlike in the instant case, before this court passed upon the issue the
district court ruled upon the merits of the motion to suppress, making relevant factual
findings. See also United States v. Kye Soo Lee, 898 F.2d 1034, 1039-40 (5th Cir. 1990)
(another appeal of the same Kye Soo Lee case detailing more of the lower court’s findings).
Blackwell v. Barton, 34 F.3d 298, 301, 305 (5th Cir. 1994), was a 42 U.S.C. § 1983 action,
in which our standard of review was governed by the summary judgment standard under
the Federal Rules of Civil Procedure, not the rules of criminal procedure at issue in the
present case. Moreover, even under the majority’s logic an appellate court should only act
as the initial arbiter of reasonable suspicion if the facts are undisputed. That is not true
here. As shown above, the defendant has not conceded and the district court did not find
that the arresting officer’s recitation of the facts was credible.
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No. 08-41063
Third, the magistrate judge and district court erroneously concluded
that, even if Pack’s constitutional rights were violated by the prolongation of
his detention, his motion to suppress must be denied because Pack did not
prove that the evidence was a fruit of that violation. The fruit of the
poisonous tree doctrine operates to exclude evidence derived from a
constitutional violation unless the prosecution proves by a preponderance of
evidence in the trial court that it was derived independently from that
violation.
“The exclusionary rule prohibits introduction into evidence of tangible
materials seized during an unlawful search . . . .” Murray, 487 U.S. at 536
(citing Weeks v. United States, 232 U.S. 383 (1914)). “Beyond that, the
exclusionary rule also prohibits the introduction of derivative evidence, both
tangible and testimonial, that is the product of the primary evidence, or that
is otherwise acquired as an indirect result of the unlawful search, up to the
point at which the connection with the unlawful search becomes ‘so
attenuated as to dissipate the taint.’” Id. at 536-37 (quoting Nardone v.
United States, 308 U.S. 338, 341 (1939)). “Under the fruit of the poisonous
tree doctrine, all evidence derived from the exploitation of an illegal search or
seizure must be suppressed, unless the government shows that there was a
break in the chain of events sufficient to refute the inference that the
evidence was a product of the constitutional violation.” Dortch, 199 F.3d at
200-01 (citing United States v. Cherry, 759 F.2d 1196, 1210-11 (5th Cir.
1985)).
The record clearly reflects that the evidence was derived from the
officer’s prolonged detention of Pack. The officer detained Pack, the driver,
and the vehicle because he suspected Pack of transporting illegal drugs and
he called for a canine unit to confirm or allay his suspicion. Throughout
Pack’s detention the officer’s only basis for suspicion of drug trafficking was
42
No. 08-41063
Pack’s travel on an interstate highway, Pack’s apparent nervousness, and the
inconsistency of Pack’s itinerary story with that of the driver. Pack’s
prolonged detention enabled the drug dog to alert on the vehicle’s trunk and
the officer to discover the evidence in the baggage inside the luggage
compartment. Thus, based on the current record, the evidence was derived
from Pack’s prolonged detention and should have been suppressed if the
officer lacked reasonable suspicion to detain Pack for that protracted period.
Rewriting the record, the majority contends that the magistrate judge
and district court concluded the evidence was not a fruit of Pack’s prolonged
detention because the officer also had reasonable suspicion to hold the driver,
and thereby the car, and thus the marijuana would have been discovered
regardless of whether or not Pack was released. Majority Op. 10. However,
the driver’s conduct was mentioned only once in the magistrate judge’s
analysis, in reference to her speeding, which the magistrate judge concluded
and Pack conceded justified the initial stop, but not the continued detention.
Instead, the magistrate judge continually returned to the claim that “Pack
exhibited signs of nervousness” as the Government’s justification for the
officer’s “suspicio[ns].” Therefore, it was clearly Pack’s behavior that the
Government alleged and the lower court thought was being used to justify the
continued seizure of Pack, the driver and the car.
As a result, the magistrate judge and district court legally erred in
concluding that the evidence could not have been suppressed, even if Pack’s
prolonged detention was unlawful, on the theory that Pack had to prove a
nexus between his unlawful detention and the evidence. That theory is
invalid. If Pack’s prolonged detention was unlawful, it is evident that on the
present record the evidence was a fruit of that violation and therefore had to
be suppressed. In such a case, the burden would be on the government, not
Pack, to prove a break in the chain of events linking the violation and the
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No. 08-41063
evidence or that the evidence was or could have been obtained independently
of the unlawful detention. See Nix v. Williams, 467 U.S. 431, 444 (1984).
Because the government failed to argue, and the record fails to show, that
there is any basis for inferring that the evidence was or could have been
obtained independently of Pack’s prolonged detention, there was no valid
basis for the district court to conclude that the marijuana was not a fruit of
the unlawful detention.2
II.
In addition to the errors discussed above, the majority opinion, in my
view, also misreads and misapplies several of our circuit precedents. As the
majority recognizes, we held in Dortch, 199 F.3d 193, that the bare fact that
motorists were traveling on an interstate highway, combined with their
“extreme nervousness and inconsistent stories, [is] not enough to create
reasonable suspicion of drug trafficking.” Majority Op. 16. Yet these are the
precise and exclusive facts from which the majority finds “reasonable
suspicion” in the instant case for the first time from a cold record on appeal.
Tacitly conceding its inability to distinguish Dortch from the present case, the
majority tries to circumvent it by arguing that Dortch was overruled by
Brigham, 382 F.3d 500. But this argument lacks persuasive merit.
Rather than overruling Dortch, Brigham distinguishes and builds upon
Dortch, as has been observed by a host of other circuit precedents citing to and
applying Dortch following Brigham. See United States v. Cavitt, 550 F.3d 430,
436 (5th Cir. 2008) (citing as binding precedent Dortch’s analysis that the
2
For example, the Government did not argue or show that either Pack or the
owner-driver of the vehicle consented to the officer’s search of the vehicle or the luggage in
its trunk; nor is there any contention that the challenged evidence is admissible under the
inevitable discovery or independent source doctrines. See Murray, 487 U.S. at 537; Nix, 467
U.S. at 443; Cherry, 759 F.2d at 1205-06.
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No. 08-41063
facts in Dortch do not establish reasonable suspicion); United States v.
Khanalizadeh, 493 F.3d 479, 483 (5th Cir. 2007) (same); United States v.
Jenson, 462 F.3d 399, 404-05 & n.5 (5th Cir. 2006) (holding that the
government lacked reasonable suspicion based on the facts of that case in part
because “[w]e have previously found detentions unreasonable based on the
totality of the circumstances, when the driver exhibited signs of nervousness”
(citing Dortch, 199 F.3d at 199-200)). In fact, Brigham positively cites Dortch
at least eight times, Brigham, 382 F.3d at 506, 507, 508 & n.7, 509 & n.8, 510,
511, including in relation to Dortch’s analysis that its facts do not establish
reasonable suspicion, id. at 510 (criticizing the dissent for extending Dortch
beyond its “facts and reasoning” on which the majority relied).
Seeming to recognize that its argument is undermined by circuit
precedent, the majority also argues that all of the cited cases’ discussions of
Dortch must be dicta because Dortch and Brigham’s holdings are clearly
irreconcilable. However, Dortch and Brigham can easily be read together. In
Brigham, unlike in Dortch and the instant case, one of the detained suspects
produced a fake I.D. This provided much of the officer’s basis for reasonable
suspicion, justifying the prolonged detention and eventual search. Brigham,
382 F.3d at 505, 509 (“Once Conklin learned that Franklin’s I.D. was likely
false, Conklin acted reasonably, with further questioning.”). By contrast,
Dortch mirrors the facts alleged in the instant case, which the Dortch majority
concluded did not establish reasonable suspicion. See 199 F.3d at 196.
Therefore, Dortch and Brigham can be reconciled by the obvious truth that
concealing one’s identity from a police officer by producing a forged document
can tip the totality of circumstances toward reasonable suspicion, where an
individual’s mere inconsistencies and nervousness could not.
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No. 08-41063
CONCLUSION
The district court’s decision should be vacated because it legally erred
in: (1) concluding that Pack lacked standing to challenge the prolonged
detention of his person; (2) failing to determine whether there was a
reasonable articulable basis to suspect Pack of possession of illicit drugs; and
(3) concluding that the evidence, which was derived from Pack’s prolonged
detention, could not be the fruit of that detention. Accordingly, we should have
remanded the case to the district court and directed it to determine, in light of
the correct legal principles, in the first instance: (1) the credible facts
surrounding Pack’s seizure; (2) whether those facts established reasonable
suspicion; and (3) if there was not reasonable suspicion, whether the evidence
found in the luggage appearing to belong to Pack was a fruit of that unlawful
seizure. Therefore, I respectfully dissent.
46