IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 98-41129
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CECIL ANTHONY DORTCH,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________
December 23, 1999
Before GARWOOD, SMITH, and
BENAVIDES, Circuit Judges. I.
At approximately 11:30 p.m., highway pa-
JERRY E. SMITH, Circuit Judge: trol officers Rick Anderson and Robert Ener
stopped Dortch on Interstate 10 near
Cecil Dortch appeals his conviction of pos- Beaumont, Texas, purportedly for traveling
session with intent to distribute cocaine in vio- too close to a tractor-trailer. Dortch was
lation of 28 U.S.C. § 841(a)(1). He challenges driving and was accompanied by a female
the denial of his motion to suppress evidence, acquaintance. According to the record
the sufficiency of the evidence, and the denial (including a videotape mounted in the patrol
of his motion to proceed pro se. Concluding car), Dortch, on the officers’ request, exited
that the inculpatory evidence was the fruit of the car, produced his license and car rental
an illegal search, we reverse and remand for papers, and consented to a pat down search to
entry of a judgment of acquittal. ensure that he was not carrying a weapon;
none was found.
After examining the rental papers, the After about 14-15 minutes had elapsed,
officers determined that the car was rented to Anderson received Dortch’s criminal record
a third person1 and that Dortch was not listed from the dispatcher and questioned Dortch
as an aut horized driver. Anderson then about the details of that record. Anderson did
questioned Dortch and the passenger about not, however, inform Dortch that the
who owned the car and what they were doing computer check had been completed (although
in the area. Dortch and the passenger gave it had) or that he would be free to go at any
inconsistent answers about Dortch’s time, and it is not plain, from the record, what,
relationship to the person who had rented the if anything, remained to be done with respect
car, and although Dortch stated that they had to that check.
been in Houston for the last two days, the
rental car papers showed that the car had been Approximately 19-20 minutes after the ini-
rented the day before in Pensacola, Florida, tial stop, the officers spotted the canine unit
where Dortch lived, and he stated that they across the four-lane interstate and median.
were not carrying any luggage. They then informed Dortch that the computer
check for outstanding warrants had been com-
While Anderson questioned Dortch, Ener pleted and had turned up nothing, but that the
took Dortch’s drivers license and car rental canine unit was going to perform a search
papers and called a dispatcher to run a nonetheless. Dortch remained at the scene
computer check for warrants and to determine until the dogs arrived and performed their
whether the car was stolen. About eight search, and his driver’s license and rental
minutes into the stop, while the computer papers remained with the officers on a
check was pending, Anderson requested clipboard.
consent to search the vehicle. Dortch stated
that the officers could search the trunk but not According to Ener, the dog alerted to the
the vehicle, so no search of the vehicle was driver’s side door and seat, but the subsequent
performed at that time. search of the car still uncovered no
contraband. Approximately another ten
The officers told Dortch that he would be minutes elapsed during the canine search. The
free to leave after the check for warrants was officer handling the canine then informed
complete but that the officers would detain the Anderson that there could be contraband on
car until they had performed a canine search of the body of the person who had been sitting in
it. At that time, the officers first called for the the driver’s seat. Ener stated that Dortch
canine unit to be sent to the scene. Again, consented to a third pat down search at that
Anderson patted down Dortch in a search for time, though this consent is not recorded on
weapons, and again nothing was found. the video or audio portions of the tape.
This time, Ener conducted a more thorough
search of Dortch’s person and testified that he
1
The car was rented to a Nicki Bender; it is not noticed a large hard bulge in the crotch area
evident whether she was Dortch’s wife, cousin, or that did not appear to be “part of his
another girlfriend. Her identity does not seem [Dortch's] body.” Again, the pat down and
particularly important, and neither party dwells on discovery of the bulge are not on the video.
it.
2
The bulge apparently was a plastic baggie Dortch consented to the search of his body.”
holding five smaller baggies that contained Accordingly, the court concluded there was no
137.35 grams of cocaine. Fourth Amendment violation. The jury
returned guilty verdicts on both counts, but the
The officers arrested Dortch and the court granted Dortch's motion for acquittal on
passenger, but she was not charged. Dortch the conspiracy count.
was indicted for possession with intent to
distribute cocaine in violation of 21 U.S.C. Dortch argues that the prolonged detention
§ 841(a)(1) and for conspiracy to commit the that followed the traffic stop and the warrant-
underlying offense in violation of 21 U.S.C. less search of his person were unreasonable in
§ 846. violation of the Fourth Amendment. He
contends that once the officers issued the oral
Sixteen months later, a search warrant is- warning for the traffic violation and received
sued for Dortch’s residence in Pensacola,2 information from the computer check that he
where officers recovered a sifter, triple beam had no outstanding warrants, the justification
scales, Inositol powder, baking powder, and a for the stop ended, and the officers should
firearm. Several of these items had crack have allowed him to leave at that time. He
cocaine residue. further argues that his continued detention re-
quired a separate justification (which he urges
Dortch moved to suppress the evidence ob- was lacking) and that the third pat-down
tained during the traffic stop, arguing that the search was nonconsensual and therefore
cocaine found on his person was discovered in required probable cause.
violation of the Fourth Amendment. The
bases for this assertion were that the search II.
and seizure exceeded their permissible scope In considering a ruling on a motion to sup-
under Terry v. Ohio, 392 U.S. 1 (1968), that press, we review questions of law de novo and
there was no probable cause or reasonable factual findings for clear error. United States v.
suspicion to pat down Dortch a third time or Castro, 166 F.3d 728, 731 (5th Cir.) (en
to conduct a more intensive pat down, and that banc), cert. denied, 120 S. Ct. 78, cert.
Dortch had not consented to the final search of denied, 120 S. Ct. 309 (1999). We view the
his person that uncovered the contraband. evidence in the light most favorable to the
party that prevailed in the district courtSSin
Following a hearing, the court, in a short this case, the government. Id.
non-detailed order, denied the motion to
suppress, stating, “The court finds that the Although Dortch initially argues in his brief
police officer had probable cause to search that the stop was unreasonable, he does not
Dortch's body. The Court further finds that expand upon that argument. Moreover, he
later argues that the illegality occurred when
the justification for the initial stop ended and
2
Dortch argued that the residence searched was the officers lacked authority for the continued
not his, and he introduced evidence that it was detention and additional search. Thus, he
rented to another person. Dortch does not raise seems to concede the legality of the initial
this issue on appeal, however, so we do not address traffic stop, and there can be no serious
it.
3
question as to that conclusion.3 down searches, which did not uncover any
evidence.
Dortch also does not challenge the legality
of the canine search of the vehicle. It is worth The thrust of Dortch’s appeal is that
noting, however, that such a challenge likewise although the officers were justified in stopping
would be unavailing, because a dog sniff does the car, in performing a search for weapons on
not constitute a search or seizure under the his person, and in detaining him for some
Fourth Amendment. See United States v. period of time incident to the stop, at some
Seals, 987 F.2d 1102, 1106 (5th Cir. 1993). point the detention became unreasonable and
And once the dogs “alerted” to the driver’s exceeded the scope of intrusion allowed under
side of the car, probable cause to search the Terry. Dortch concludes that because the con-
vehicle was established. See United States v. tinued detention was unreasonable and
Zucco, 71 F.3d 188, 191-92 (5th Cir. 1995) violated the Fourth Amendment, the
(holding that once a dog had alerted to the subsequently discovered cocaine is
interior wall of the van, there was probable inadmissible as “fruit of the poisonous tree.”5
cause to dismantle the wall).4 Nor does Alternatively, he concludes that the third
Dortch challenge either of the first two pat- search of his body was itself unreasonable be-
cause of a lack of probable cause or consent.
3
See, e.g., United States v. Causey, 834 F.2d
1179, 1184 (5th Cir. 1987) (en banc) (noting that A.
“so long as police do no more than they are ob- As for the claim that the detention exceeded
jectively authorized and legally permitted to do, the scope of a permissible Terry stop, we eval-
their motives in doing so are irrelevant and hence
uate the legality of investigatory stops under a
not subject to inquiry”).
dual inquiry: “whether the officer’s action was
4
Given that Dortch does not challenge the legal- justified at its inception, and whether it was
ity of the search, it is puzzling that the dissent goes reasonably related in scope to the circumstanc-
to such efforts to develop its theory that “because es which justified the interference in the first
the rental agreement provided only the renter was place.” United States v. Shabazz, 993 F.2d
an authorized driver, Dortch had no right to 431, 435 (5th Cir. 1993) (citing Terry,
complain of the vehicle’s detention.” In arguing 392 U.S. at 19-20). In Shabazz, the court
that Dortch has no legitimate privacy interest in a noted that the detention following a stop must
rental car, the dissent seems to miss the point. be tailored to its underlying justification and
that, once an officer conducts a pat down
As we explain above, Dortch’s complaint is not search of one suspected only of carrying a gun,
that the vehicle was detained or improperly
searched, but rather that he was improperly seized
in that, under the circumstances, he would not feel
5
free to leave without his vehicle or his driver’s li- See Segura v. United States, 468 U.S. 796,
cense, and because he could not reasonably be ex- 804 (1984) (observing that the exclusionary rule
pected to wander off down the highway in an un- reaches not only primary evidence obtained as a
familiar area. Therefore, it is irrelevant whether direct result of an illegal search or seizure, but also
Dortch had a legitimate expectation of privacy in evidence later discovered and found to be
the car, for it cannot be disputed that he had a le- derivative of illegality, or “fruit of the poisonous
gitimate interest in not being unreasonably seized. tree”).
4
the officer, upon finding no weapon, may not The government argues that because the
further detain the person to question him. See drug-sniffing dogs arrived within moments of
Shabazz, 993 F.2d at 436. the completion of the computer check, and be-
cause the computer check served a valid law
Like the defendants in Shabazz, Dortch enforcement purpose, Dortch was not
cannot successfully claim that the detention unreasonably detained. This contention gains
until the computer check was complete superficial support from United States v.
exceeded its original scope. Because this was Sharpe, 470 U.S. 675 (1985), holding that a
a valid traffic stop, the officers were permitted defendant who was suspected of transporting
to request Dortch’s license and the registration drugs in his truck and was held for twenty
or rental papers for the car and to run a minutes pending the arrival of a DEA agent
computer check thereon. See id. at 437; see had not been unreasonably detained:
also United States v. Kelley, 981 F.2d 1464,
1469 (5th Cir. 1993). Although Dortch was While it is clear that “the brevity of the
detained and questioned while the computer invasion of the individual’s Fourth
check was pending, this was lawful. Amendment interests is an important
factor in determining whether the
The Constitution was violated, however, seizure is so minimally intrusive as to be
when the detention extended beyond the valid justifiable on reasonable suspicion,” we
reason for the initial stop. To be sure, Dortch have emphasized the need to consider
did not feel free to leave even after the officer the law enforcement purposes to be
had informed him that the computer check was served by the stop as well as the time
completed, because the officers still held his reasonably needed to effectuate those
license and rental papers and had told him they purposes.
were going to detain his car until the dog team
arrived. Id. at 685 (citations omitted).
Although, upon arrival of the dogs, the of- But Sharpe, on further examination, is inap-
ficer asked Dortch whether he wanted to stick posite, for the court of appeals had assumed
around while the dogs completed their search, that the officers “had an articulable and
Dortch’s acquiescence at this point cannot be reasonable suspicion that [the suspects] were
considered voluntary. It is unlikely, in these engaged in marijuana trafficking when [the
circumstances, that he would feel free to walk officers] stopped the Pontiac and the truck,”
off down the highway, particularly given the id. at 680, and the Supreme Court accepted
fact that the officers still held his license and that assumption. Thus, the delay required for
that Dortch was in an unfamiliar, relatively de- the DEA agent to arrive on the scene was
serted area, miles from the nearest town, in the necessary to effect the purposes of the initial
middle of the night. As noted in United States stopSSdrug investigation.
v. Lambert, 46 F.3d 1064, 1068 (10th Cir.
1995), “what began as a consensual encounter Here, however, there was no reasonable or
quickly became an investigative detention once articulable suspicion that Dortch was
the agents received [defendant’s] driver’s li- trafficking in drugs. The answers he and the
cense and did not return it to him.” passenger gave, even assuming they were
5
suspicious, did not give rise to that inference. Those purposes were served when the
Rather, the confusion as to the relationship of computer check came back negative, and
Dortch to the proper renter of the vehicle, Dortch should have been free to leave in his
combined with Dortch’s absence as an car at that point. Once he was not permitted
authorized driver on the rental agreement and to drive away, the extended detention became
the allegedly inconsistent answer about the an unreasonable seizure, because it was not
stay in Houston, gave rise only to a reasonable supported by probable cause.6 To hold
suspicion that the car might have been stolen. otherwise would endorse police seizures that
are not limited to the scope of the officers’
reasonable suspicion and that extend beyond a
The government also argues that the police reasonable duration.
had reasonable suspicion that Dortch was traf-
ficking drugs because he appeared nervous. Sharpe can be distinguished also because
Ener testified that while Anderson was ques- the Court there emphasized that a twenty-
tioning Dortch, Dortch became increasingly minute stop was not per se unreasonable
more nervous and gazed around “as if he was where the delay for the agent to arrive “was
looking for a place to run.” But if Dortch attributable almost entirely to the evasive
were awaiting an opportunity to flee, that actions of [one of the suspects] . . . . Except
chance arose when the officers informed him for [the suspect’s evasive] maneuvers, only a
that the warrant check was negative and he short and certainly permissible pre-arrest
was free to go. detention would likely have taken place.”
Sharpe, 470 U.S. at 687-88.
The government has not advanced any
theory explaining how the officers retained a The delay for the canine unit to arrive can-
reasonable suspicion even after the warrant not be attributed to any of Dortch’s actions.
check came back negative and Dortch had In fact, it was approximately 9-10 minutes into
passed on his opportunity for flight. Assum- the stop before the officers first requested that
ing, arguendo, that Dortch voluntarily the dispatcher send the canine unit. The
consented to remain at the scene for the canine officers offered no justification for this delay;
search, the police cannot continue to rely on to the contrary, Ener testified that these
this assertion to support their conclusional officers’ main duty was drug interdiction,
statement that he was nervous. including checking suspected vehicles for
narcotics. It is therefore reasonable to expect
Essentially, the government asks us to find that they would have anticipated needing a
that officers have reasonable suspicion to sus- canine unit within a few minutes of stopping
pect drug trafficking anytime someone is driv- a suspect.
ing a rental car that was not rented in his
name. We reason, to the contrary, that the law Nor does the result in Shabazz change this
enforcement purposes to be served by the
computer check were only to ensure that there
were no outstanding warrants and that the 6
See Michigan v. Summers, 452 U.S. 692, 700
vehicle had not been stolen. (1981) (“[E]very seizure having the essential
attributes of a formal arrest[] is unreasonable
unless it is supported by probable cause.”).
6
conclusion. There, we cited Sharpe with ap- the canine search took another ten minutes,
proval, applying its holding to a search for with the dogs first circling the car for a few
drugs made during a stop for other law moments before a dog alerted to the driver-
enforcement purposes. The officers’ original side door. Although at this point the officers
justification for the stop was excessive speed, then established probable cause to search the
but we held that “[b]ecause the officers were interior of the car and to detain Dortch until a
still waiting for the computer check at the time more thorough search could be completed, by
that they received consent to search the car, then it was too late: Any probable cause
the detention to that point continued to be established as a result of the canine search was
supported by the facts that justified its subsequent to the unlawful seizure.
initiation.” Shabazz, 993 F.2d at 437.
As a result, the district court erred in
That is not the case here, because the jus- concluding that the third search of Dortch’s
tification for detention ceased once the com- body was justified by probable cause. The
puter check came back negative, and the ca- “fruit of the poisonous tree” doctrine, as
nine search was not performed until after that articulated in Segura v. United States, 468
completed check. Admittedly, that search, if U.S. 796, 804 (1984), counsels that the
performed during the detention, would not probable cause to search his body would never
have violated Dortch’s constitutional rights, have been established if not for the previous
because it is not a search at all under the unlawful detention, and the cocaine never
Fourth Amendment. See Seals. would have been discovered.
Thus, to say that the search was Under the fruit of the poisonous tree
unconstitutional because it was during an doctrine, all evidence derived from the
unlawful detention makes that determination exploitation of an illegal search or seizure must
turn on the fact that the search occurred be suppressed, unless the government shows
moments after the computer check was that there was a break in the chain of events
completed, rather than moments before. But sufficient to refute the inference that the
it is well established that “an investigative evidence was a product of the constitutional
detention must be temporary and last no violation. See United States v. Cherry, 759
longer than is necessary to effectuate the F.2d 1196, 1210-11 (5th Cir. 1985). Thus, the
purpose of the stop.” Florida v. Royer, district court should have granted the motion
460 U.S. 491, 500 (1983). And while we to suppress, unless Dortch nonetheless
“should not indulge in unrealistic second- consented to the third body search. Without
guessing” of the methods employed by the this consent, there is no other break in the
officers on the scene, see Sharpe, 470 U.S. chain of events that would refute the inference
at 686, the evidence makes such second- that the cocaine’s discovery was the product
guessing unnecessary and plainly reflects that of the Fourth Amendment violation.
the computer search had already ended before
the dog search began; at that point it was B.
unreasonable to detain Dortch any longer. Although Dortch’s detention exceeded the
permissible scope of a Terry stop, “[c]onsent
This conclusion is bolstered by the fact that to search may, but does not necessarily,
7
dissipate the taint of a [prior] fourth Indeed, the finding of probable cause indicates
amendment violation.” United States v. that the court did not believe there had been a
Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. prior unlawful seizure, so it is highly unlikely
1993). Where there has been a prior that the court would have applied the “heavier
constitutional violation, the government’s burden” required by Shabazz.
burden to prove that the defendant consented
becomes all the more difficult. In Chavez-Villarreal, 3 F.3d at 127, we
noted that when we evaluate consent given
To be valid, consent to search must be after a Fourth Amendment violation, “[t]he ad-
“free and voluntary.” The government missibility of the challenged evidence turns on
has the burden of proving, by a a two-pronged inquiry: whether the consent
preponderance of the evidence, that the was voluntarily given and whether it was an
consent was voluntary. Where consent independent act of free will.” Voluntariness
is preceded by a Fourth Amendment focuses on coercion, and the second prong
violation, the government has a heavier considers the causal connection between the
burden of proving consent. The “consent” and the prior constitutional
voluntariness of consent is “a question violation. See id.
of fact to be determined from the totality
of the circumstances.” We will not In evaluating the voluntariness of a consent,
reverse the district court’s finding that we have looked to six factors:
consent was voluntary unless it is clearly
erroneous. Where the judge bases a (1) the voluntariness of the defendant’s
finding of consent on the oral testimony custodial status; (2) the presence of co-
at a suppression hearing, the clearly ercive police procedures; (3) the extent
erroneous standard is particularly strong and level of the defendant’s cooperation
since the judge had the opportunity to with the police; (4) the defendant’s
observe the demeanor of the witnesses. awareness of his right to refuse consent;
(5) the defendant’s education and
Shabazz, 993 F.2d at 438 (internal citations intelligence; and (6) the defendant’s
omitted). belief that no incriminating evidence will
be found. Although all six factors are
The finding of consent was based on a relevant no single factor is dispositive.
suppression hearing at which Dortch both
testified and had the opportunity to question Shabazz, 993 F.2d at 438. Because of the
the government’s witness. As we have noted deferential standard of review, we assume the
above, we typically should accord the district district court implicitly considered these
court’s determination much deference. See factors. It is, therefore, hard to say that the
United States v. Sutton, 850 F.2d 1083, 1086 finding of voluntariness was “clearly
(5th Cir. 1988). The order denying the motion erroneous.”
to suppress is non-detailed, however, and there
is no indication that the court considered that Yet, assuming arguendo that the court
there had been a Fourth Amendment violation correctly found that Dortch consented to the
that would color any subsequent consent. third pat down search voluntarily, “consent
8
does not remove the taint of an illegal A defendant’s belief that no evidence will
detention if it is the product of that detention be found is a relevant factor in the
and not an independent act of free will.” voluntariness inquiry but not in considering
Chavez-Villarreal, 3 F.3d at 128. In Chavez- whether the causal connection between the
Villarreal, we held it unnecessary to inquire consent and the illegal detention was broken.
into the voluntariness prong, as we found that Under the second prong of the consent
under the circumstances of the detention, the inquiry, we consider three factors to determine
defendant’s consent was not an independent whether the causal chain was broken: (1) the
act of free will. It was significant that the temporal proximity of the illegal conduct and
officers still retained his alien registration the consent; (2) the presence of intervening
cards, and we held that even though the officer circumstances; and (3) the purpose and
told him he could refuse to consent to the flagrancy of the initial misconduct. Chavez-
second search, such a refusal seemed pointless Villarreal, 3 F.3d at 128.
by then. Id. First, the videotape establishes a close tem-
poral proximity between the illegal conduct
Here, refusal similarly would have seemed and the consent, because the illegal con-
useless to Dortch: He had previously refused ductSSthe detentionSScontinued until the
permission to search the car, yet he was officers had sought Dortch’s consent to search
required to stand by and watch the dogs his person a third time. Second, no
perform their search nonetheless and then to circumstances intervened between the
watch the officers comb every part of the detention and the consent, and there is no
interior of the vehicle. Moreover, the officers reason to think that Dortch believed he was
still held his license and rental papers, and free to go during that time. Finally, while the
there is no indication that they, as did the purpose of the officers’ conduct cannot be
officers in Chavez-Villarreal, informed the known, it is apparent from the videotape that
defendant that he could refuse consent. In the they intended all along to detain the car until
context of this prolonged unlawful detention, the canine unit arrived; indeed, they told
and in light of the fact that his previous Dortch as much. Thus, this final factor also
refusals were seemingly ineffective, Dortch’s seems to weigh in favor of finding there was
consent cannot be considered an independent no consent.
act of free will.
The government also points to the fact that
The government contends that United Dortch is a relatively intelligent man, one who
States v. Kelley, 981 F.2d 1464 (5th Cir. has successfully represented himself pro se in
1993), counsels that Dortch’s consent was a previous criminal appeal, as evidence of the
nonetheless valid because he might have fact that his consent was voluntary. But like
thought the officers would not discover the the fact that Dortch may have consented to the
cocaine on his person. The government points third search because he did not expect the
to the facts that Dortch had already been pat- officers to find anything, Dortch’s intelligence
ted down twice and that the drugs were not level and his knowledge of his legal right to
found, to support its contention that Dortch refuse consent are not relevant to the “causal
believed that he had secreted them in a place connection” prong of the inquiry.
where they would not be revealed.
9
In sum, even if Dortch’s consent was
voluntarily given, and the district court’s
determination therefore was not clearly
erroneous, the consent was not valid. Instead,
because the causal chain between the illegal
detention and Dortch’s consent to a third body
search was not broken, the search was non-
consensual. And because there was no
probable cause to search his person, the
evidence obtained during that search should
have been suppressed. Likewise, the evidence
that was found in his residence as the result of
a search warrant issued after the cocaine was
found on his person must be excluded as fruit
of the poisonous tree.
There being no other inculpatory evidence
sufficient to convict Dortch of possession with
intent to distribute cocaine, the conviction is
REVERSED, and the j udgment is
REMANDED for entry of a judgment of
acquittal.
GARWOOD, Circuit Judge, dissenting:
I dissent. The district court did not err in denying the motion to suppress.
I.
To begin with, the officers had reasonable suspicion of contraband trafficking sufficient to warrant
the very brief – five minutes or less – additional detention of the vehicle following the report on
Dortch’s driver’s license check and until the alert of the previously summonsed K-9. The following
matters reflected by the prosecution’s evidence at the suppression hearing–at which Dortch presented
no evidence–more than suffice to establish reasonable suspicion of contraband trafficking:
1. Though the car had been rented in Pensacola, Florida–which the court could judicially notice
was some 500 miles east of Houston–on March 4, at 4:30 p.m., and the stop was near Beaumont
(about 88 miles east of Houston) on March 5 at 11:30 p.m. (31 hours later), Dortch and the
passenger told the officers “they had been in Houston for two days”. Given normal driving times, it
would be reasonable to conclude this was likely a fabrication.
2. Despite having asserted they had been in Houston for two days, Dortch told the officers they
had no luggage.
3. Dortch acted “very nervous” and “couldn’t stand still.”
4. Officer Ener testified: “The car was rented by Nicki Bender. Nicki Bender was not present
in the car, and the rental papers showed there were no additional drivers allowed for the vehicle,” and
no one was “present who had the authority to operate that vehicle.” Officer Ener testified that one
of his “reasons for detaining the vehicle” was that “neither the driver nor the passenger, were
authorized drivers of that vehicle.”
5. Dortch told one officer that Bender was his cousin; the passenger told one officer that Bender
was Dortch’s wife and told another officer that she was his girlfriend.
6. There was no evidence at the suppression hearing that Bender authorized either Dortch or the
passenger to drive the car (or even that Dortch so claimed to the officers).
The majority rejects what it characterizes as the government’s argument “that officers have
reasonable suspicion to suspect drug trafficking anytime someone is driving a rental car that was not
rented in his name.” The majority’s approach in this respect is flawed for several reasons. It ignores
other suspicious factors–e.g., items 1,2,3 and 5 above. It also ignores the facts that not only was the
driver not the renter, but the renter was not present in the vehicle, “the rental papers” provided that
“no additional drivers” [other than the renter] were “allowed for the vehicle” so that neither the driver
nor the sole passenger was authorized to drive the vehicle, and there was nothing to document any
11
relationship between anyone present in the vehicle and either its renter or its owner. Finally, the
majority in this connection also simply overlooks the testimony of Officer Ener, a nine and a half year
veteran police officer, that the third party rental aroused his suspicions because “frequently persons
who are transporting narcotics or other illegal substances will have someone else rent a car for them,
and they will take possession of the car at a later time” and “in my training and experience, it’s been
common for a third person, someone who is not in the car, to rent a car to be used for transporting
narcotics or other contraband.”
The majority cites no authority for its conclusion that circumstances such as none of a rented
vehicle’s occupants being either an authorized driver of it or having any documented relation to the
vehicle or the party renting it, do not give rise to reasonable suspicion of contraband trafficking. Nor
am I aware of any such authority. To the contrary, in United States v. Jones, 44 F.3d 860 (10th Cir.
1995), the Court found reasonable suspicion for continued detention following a traffic stop in part
because the driver of the rental car was not an authorized driver under the rental agreement. The
Court stated (id. at 872):
“In Arango [U.S. v. Arango, 912 F.2d 441, 447 (10th Cir. 1990)], an analogous case regarding
a traffic stop for speeding, we concluded that the combination of the driver’s inability to prove
lawful possession of the vehicle and the officer’s skepticism regarding the amount of luggage
provided reasonable suspicion to justify an inquiry related to the transportation of contraband.”
The majority has in effect applied a probable cause–rather than a reasonable suspicions–standard
here. But, “[t]he ‘reasonable suspicion’ standard does not require that officers have probable cause
. . . or that the circumstances be such that there is no reasonable hypothesis of innocent behavior.”
United States v. Basey, 816 F.2d 980, 989 (5th Cir. 1987). In determining whether there was
reasonable suspicion we look at all the circumstances together to “weigh not the individual layers but
the ‘laminated’ total,” United States v. Edwards, 577 F.2d 883, 895 (5th Cir. 1978), and “[F]actors
12
that ordinarily constitute innocent behavior may provide a composite picture sufficient to raise
reasonable suspicion in the minds of experienced officers.” United States v. Holloway, 962 F.2d 451,
459 (5th Cir. 1992). The majority has ignored these settled precepts.
II.
Even if the officers did not have reasonable suspicion justifying their continued brief detention of
the vehicle until the K-9 alert, such detention in any event was not shown to have violated any of
Dortch’s rights. Thus the majority errs by holding that continued detention of the vehicle amounted
to continued detention of Dortch, because without the vehicle he as a practical matter had to remain
in the vicinity.7 Because neither Dortch nor the other occupant was the renter of the vehicle, and
because the rental agreement provided only the renter was an authorized driver, Dortch had no right
to complain of the vehicle’s detention.
“[T]he proponent of a motion to suppress has t he burden of establishing that his own Fourth
Amendment rights were violated by the challenged search or seizure.” Rakas v. Illinois, 99 S. Ct.
421, 424 n.1 (1978).
The suppression hearing record contains no evidence that either Dortch or his passenger had any
right to drive the car or to be in possession of it; nor does the suppression hearing record contain any
7
Testimony at the suppression hearing reflected that the officers told Dortch, while they were waiting for
the report on the inquiry concerning his license, “that he would be free to leave as soon as the warrant checks
came back but we were going to detain the car until the K-9 could get there.” Dortch replied “I’ll just stay with
the car.” Officer Ener testified that Dortch never asked for his driver’s license back and had he either asked
for it, or indicated he wanted to leave, the license would have been returned to him, and “we would have called
another patrol unit to come pick him up and take him down to the truck stop which was just a few miles away.
We have done this in the past,” and that when the warrant check came back “at that point if he had indicated
he wanted to leave, we would have handed him everything and if he had wanted us to call somebody, we would
have.”
The majority’s footnote 4 is puzzling because it fails to address the fact that Dortch’s claim of personal
detention wholly depends on his claim of detention of the vehicle, a vehicle which neither he nor the sole other
occupant had any right to drive or possess.
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evidence that Bender, who was the named renter in the rental agreement, gave Dortch or the
passenger permission to use or drive the vehicle.8 See United States v. Parks, 684 F.2d 1078, 1084-
85 (5th Cir. 1982) (district court not required to find that defendant met his burden of showing his
possession of airplane was legitimate so as to give rise to a protectable Fourth Amendment interest;
his possession of the key and the absence of evidence the plane was stolen did not suffice). The
suppression hearing record does contain evidence that under the rental agreement neither Dortch nor
the passenger was an authorized driver. These facts distinguish the instant case from United States
v. Kye Soo Lee, 989 F.2d 1034 (5th Cir. 1990), where we rejected the government’s appeal from the
granting of a motion to suppress on a showing that the renter of the searched truck had entrusted it
to the driver, but the opinion makes no reference to any restriction in the rental agreement on who
could drive the truck.
In United States v. Riazco, 91 F.3d 752, 755 (5th Cir. 1996), we noted that the Fourth and Tenth
Circuits “have held that persons driving a rental car without the authorization of the rental company
have no standing to challenge the validity of a search, because they have no legitimate expectation
of privacy in such circumstances,” citing United States v. Wellons, 32 F.3d 117, 119 & n.4 (4th Cir.
1994) and United States v. Roper, 918 F.2d 885, 887-88 (10th Cir. 1990). Accordingly, in Riazco
we reversed the district court’s grant of the motion to suppress where neither the driver nor the
passenger was the renter and the rental agreement stated that the car was to be driven only by persons
8
At the conclusion of the subsequent trial on the merits, Dortch, on cross-examination by the government,
testified that he accompanied Bender when the car was rented and he paid for its rental and was given to
understand by the rental company that he did not have to be listed as an additional driver in order to be allowed
to drive it. Because Dortch did not renew his motion to suppress at trial, he may not avail himself of this trial
evidence in his instant challenge to the district court’s denial of his motion. See United States v. Marbury, 732
F.2d 390, 400 n.13(5th Cir. 1984).
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authorized by the rental company and neither the driver nor the passenger was so authorized. We
distinguished Key Soo Lee on the basis that in Riazco there was no evidence that the renter had
authorized the driver to drive, only that the passenger had done so. In United States v. Boruff, 909
F.2d 111 (5th Cir. 1990), “Boruff arranged to have his girlfriend, Brenda Lawless (Lawless), rent a
car which he planned to use in the smuggling operation. Lawless rented a white Lincoln Towncar
in her own name and t urned it over to Boruff. The standard rental agreement signed by Lawless
provided that only she would drive the car . . . .” Id. at 113-14. Later, while Boruff was driving the
car, and alone in it, it was stopped and searched. We held Boruff could not complain of the search:
“Boruff had no legitimate expectation of privacy in the rental car. Under the express terms of
the rental agreement, Lawless was the only legal operator of the vehicle. Lawless had no
authority to give control of the car to Boruff.” Id. at 117.
In a recent opinion which carefully considers the relevant state and federal authorities, a Texas
appellate court has elected to follow the Boruff approach rather than apply the result of Keye Soo
Lee. See Rovnak v. State, 990 S.W.2d 863, 867-71 (Tex. App.-Texarkana, 1999; pet. ref’d).9
While Keye Soo Lee predated Boruff, and if the two are in conflict we are bound by Keye Soo Lee,
nevertheless Keye Soo Lee is distinguishable because it does not reflect, and did not address, the
terms of the rental agreement (and because the suppression hearing evidence there, credited by the
district court, showed the renter had entrusted the vehicle to the driver). But, if Keye Soo Lee and
Boruff are in conflict, serious consideration should be given to taking this case en banc, to clarify our
law in this respect and follow Boruff and the rule in the Fourth and Tenth Circuits.
9
Incidentally, Riazco, Boruff and Rovnak all illustrate the use of vehicles rented by absent third parties in
narcotics trafficking, just as Officer Ener testified.
15
For these reasons, I dissent from the majority’s holding that the district court erred in denying the
motion to suppress.
16