IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 30, 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:
Treating the petition for rehearing en banc as a petition for panel
rehearing, the panel, on further consideration, hereby modifies its prior opinion,
United States v. Pack, 612 F.3d 341 (5th Cir. 2010), in the following respects.
The panel now concludes that United States v. Dortch, 199 F.3d 193 (5th Cir.
1999), did not hold that the reasonable suspicion requirement of a Terry stop
meant that there must be particularized suspicion of a particular, specific crime,
as distinguished from a particular and objective basis for suspecting the
detained person or persons of some criminal activity. See, e.g., United States v.
Arvizu, 122 S.Ct. 744, 750 (2002) (“The Fourth Amendment is satisfied if the
officer’s action is supported by reasonable suspicion to believe that criminal
activity may be afoot . . .”); Brown v. Texas, 99 S.Ct. 2637, 2641 (1979) (. . .
officers must “have a reasonable suspicion, based on objective facts, that the
individual [detained] is involved in criminal activity”); United States v. Cortez,
101 S.Ct. 690, 695 (1981). Moreover, our en banc decision in United States v.
Brigham, 382 F.3d 500 (5th Cir. 2004), did not overrule or abrogate Dortch.
Dortch held that reasonable suspicion of one particular offense which admittedly
was subsequently wholly dispelled, did not constitute reasonable suspicion of a
distinctly different offense. The facts here are different from those in Dortch,
and the present situation is consistent with that in Brigham. In Brigham, when
facts came to light indicating that information furnished by the driver, which the
officers had a right to inquire into, was materially false, the officers then had a
right to extend their detention to further investigate. Here, since the
information furnished by the driver was later, on questioning of the passenger,
completely contradicted, we hold that the result of the panel here follows the
approach set out in Brigham, and is distinguishable from Dortch. However, we
withdraw the language in the panel opinion stating that Dortch was abrogated
by Brigham. Except as above noted, the panel opinion is otherwise unmodified.
Therefore, the petition for panel rehearing is DENIED. Judge Dennis dissents
from the denial of panel rehearing.
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