PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 11-4193
LENNY MANUEL ORTIZ,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge.
(1:09-cr-00452-JFM-1)
Argued: December 9, 2011
Decided: February 27, 2012
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Reversed and remanded by published opinion. Judge Nie-
meyer wrote the opinion, in which Judge King and Judge
Duncan joined.
2 UNITED STATES v. ORTIZ
COUNSEL
ARGUED: Jonathan Biran, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellant.
Richard Winelander, Baltimore, Maryland, for Appellee. ON
BRIEF: Rod J. Rosenstein, United States Attorney, Christo-
pher J. Romano, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Mary-
land, for Appellant.
OPINION
NIEMEYER, Circuit Judge:
After Lenny Ortiz was indicted for two drug trafficking
crimes—conspiracy to distribute five kilograms or more of
cocaine and possession with intent to distribute five kilograms
or more of cocaine—in violation of 21 U.S.C. § 841(a)(1), he
filed a motion to suppress the cocaine discovered in and taken
from a secret compartment in his vehicle, alleging that the
search of the vehicle violated his Fourth Amendment rights.
The district court granted the motion on the ground that the
search exceeded the scope of Ortiz’s consent.
Because we conclude that the district court applied the
wrong legal standards for determining whether law enforce-
ment officers had consent to search Ortiz’s vehicle and, in any
event, whether they had probable cause to search it, we
reverse and remand for further proceedings.
I
On August 7, 2009, the Maryland State Police received a
tip from the New Jersey State Police that a white Mitsubishi
automobile, which was believed to be connected with large
volumes of drugs and money in the New York/New Jersey
UNITED STATES v. ORTIZ 3
area, was heading southbound on I-95 and was approaching
the Delaware Memorial Bridge. The New Jersey State Police
described the vehicle, supplied its license plate number, and
indicated that the vehicle was suspected of containing drugs
and money, based on information given by an informant with
whom the New Jersey State Police were working. The Mary-
land State Police circulated the information to its troopers and
alerted them to look out for the vehicle.
Soon after receiving the dispatch, Trooper Richard Decker
spotted the vehicle traveling southbound on I-95 in Baltimore
County, Maryland, traveling 13 miles per hour over the speed
limit. Trooper Decker pulled the vehicle over, which was
occupied only by its driver, Lenny Ortiz, and notified the
Maryland State Police that he had stopped the vehicle.
Trooper Decker was instructed to drag out the traffic stop in
order to enable a more experienced officer and a drug dog to
arrive at the scene. He was also instructed not to tell Ortiz that
he was being stopped for anything more than a routine traffic
violation.
As Trooper Decker approached the vehicle, he detected a
strong scent of air freshener coming from the vehicle, and as
he began speaking with Ortiz, he saw several cans of fre-
shener in the vehicle. This contributed to Decker’s suspicion
that drugs were indeed in the vehicle because he understood
that air fresheners were often "used as a masking agent to
cover up some types of illegal drugs."
Upon Decker’s request, Ortiz produced a New York driv-
er’s license, the vehicle’s New Jersey registration card, and an
expired insurance card. As these records revealed that Ortiz
was not the owner of the vehicle, Ortiz explained that he had
borrowed it from the owner. When asked for further informa-
tion, however, Ortiz stumbled over the owner’s name, saying
that he only knew her last name. At a later point, he also
could not supply the owner’s telephone number. Ortiz
4 UNITED STATES v. ORTIZ
appeared very nervous and was also unable to explain his des-
tination.
Trooper Decker returned to his cruiser to check out Ortiz’s
license, warrant status, and criminal history, determining that
Ortiz’s driver’s license was valid, that no warrants were out-
standing against him, and that he had no criminal history.
While Decker was writing a warning ticket, Trooper Jeremiah
Gussoni arrived. On his way to the scene, Trooper Gussoni
spoke directly with New Jersey State Police Trooper Larry
Williams, who told Gussoni that the Mitsubishi had fre-
quently been used to transport "contraband, drugs, and
money" in the New Jersey and New York area; that the vehi-
cle’s course heading south on I-95 past the Delaware Memo-
rial Bridge was "extremely unorthodox" for this vehicle; and
that he suspected that "the vehicle would have drugs or large
amounts of currency in it."
Upon Trooper Gussoni’s request, Ortiz stepped out of the
vehicle so that Gussoni could pat him down and speak with
him further. During the conversation, Ortiz acknowledged
that his license might be suspended in Virginia. When asked
whether there were any drugs or money inside the vehicle,
Ortiz said no. Trooper Gussoni then requested permission to
search the vehicle for drugs, and Ortiz responded, "Yes," tell-
ing Gussoni that "he was in no rush, [they] could take [their]
time, and [they] were free to search his vehicle." During this
conversation, Trooper Gussoni observed that Ortiz was
"scared to death." The officers did not, however, search the
vehicle at that point because they had not yet completed the
traffic stop. As they later explained at the suppression hear-
ing, Maryland State Police policy requires the troopers to
secure consent after completing the traffic stop and telling the
suspect he is free to leave. Nonetheless, Decker and Gussoni
determined that they would not let Ortiz leave before properly
searching the vehicle, a determination that they did not share
with Ortiz.
UNITED STATES v. ORTIZ 5
Trooper Decker completed writing a warning ticket and
handed it to Ortiz, along with Ortiz’s other papers, telling him
he was free to leave and shaking his hand. Decker then
expressed his concern to Ortiz that the vehicle might be stolen
and asked whether he could "look around" for signs of "tam-
pering or theft." When Ortiz responded, "Sure, sure," Trooper
Decker asked further, "Are you sure you don’t mind?" Ortiz
replied, "I’ll stand right here and wait."
Troopers Decker and Gussoni then searched the vehicle
while Ortiz stood a short distance away, speaking with a third
officer from the Maryland Department of Transportation who
had responded to the alert, and he never objected to any of the
actions pursued by the troopers during the course of their
search. The troopers later explained that in conducting their
search they were looking for signs of tampering or theft such
as a popped ignition, a shaved key, low-hanging wires, tools
such as screwdrivers or bolts, broken windows, and damage
to exterior locks. They were also looking for the concealed
vehicle identification number ("VIN"), which is located in a
different spot for each make, model, and year of vehicle, to
compare it with the openly displayed VIN on the dash of the
vehicle, because it was common for automobile thieves to
alter or replace the openly displayed VIN. Two minutes into
the search, Trooper Gussoni lifted up the back seat in his
effort to locate the concealed VIN, and under the seat, he
observed a hidden compartment. When the officers opened
the compartment, they uncovered six kilograms of cocaine.
Ortiz was then placed under arrest.
The time that elapsed between when Ortiz was first pulled
over and when he was arrested was approximately 35 min-
utes.
After Ortiz was indicted for drug trafficking, he filed a
motion to suppress the cocaine, arguing that the search of his
vehicle violated his Fourth Amendment rights because: (1)
whatever consent he gave was "tainted" by the unreasonable
6 UNITED STATES v. ORTIZ
length of the traffic stop, and (2) the search exceeded the
scope of the consent he gave and therefore violated the gen-
eral rule that officers must acquire a warrant before conduct-
ing the search.
The district court concluded that the Maryland State troop-
ers exceeded the scope of consent given to them by Ortiz and,
for that reason, granted Ortiz’s motion to suppress, entering
its order on January 7, 2011. In reaching its decision, the court
concluded: (1) that the length of the detention "was not unrea-
sonable and therefore not violative of the Fourth Amend-
ment"; (2) that the Maryland State Police had reasonable
suspicion that drugs were in the vehicle, but not probable
cause; (3) that Ortiz gave consent to search for drugs before
the traffic stop was completed but that the troopers could not,
under Maryland State Police policy, rely on that consent
because it was given before completion of the traffic stop; (4)
that Ortiz gave his consent a second time to search the vehi-
cle, but this time "to make sure [the vehicle] was not stolen";
and (5) that because persons generally are not aware that a
concealed VIN could be under the back seat of the vehicle,
Ortiz did not authorize the troopers to lift up the back seat to
search for the concealed VIN. Accordingly, the court con-
cluded that in removing the back seat, Trooper Gussoni vio-
lated Ortiz’s Fourth Amendment rights and that the
subsequent seizure of the cocaine was therefore illegal.
The government filed this appeal from the district court’s
order.
II
To justify the Maryland State Police’s search of Ortiz’s
vehicle and the seizure of the cocaine found there, the govern-
ment contends (1) that Ortiz voluntarily gave his consent to
search the vehicle for drugs, a consent that he never withdrew,
and that nothing in the events following his consent justified
an inference that this consent was withdrawn; (2) that Ortiz
UNITED STATES v. ORTIZ 7
also voluntarily consented to a search of his vehicle for evi-
dence of tampering or theft, which reasonably included autho-
rization to search for the concealed VIN to confirm that the
displayed VIN was not altered and for other evidence outside
the vehicle’s main compartment; and (3) that the troopers in
any event had probable cause to believe that the vehicle con-
tained contraband and therefore could be searched.
Ortiz concedes that Trooper Decker had an adequate justifi-
cation to pull him over for driving 13 miles per hour over the
speed limit. He asserts, however, that the traffic stop became
unconstitutional because Trooper Decker extended it longer
than would have been necessary to complete the traffic stop.
Ortiz argues that the officers unnecessarily prolonged and
manipulated the traffic stop in order to search for drugs, and
that this deceptive conduct nullified the legal effect of any
consent that Ortiz gave to search the vehicle. Alternatively, he
argues that the search as conducted went beyond the scope of
his consent because the officers were searching for drugs
rather than signs of auto theft or tampering. Finally, Ortiz
argues summarily that the Maryland State Police did not have
either a reasonable suspicion that criminal activity was afoot
or probable cause to believe that contraband was in the vehi-
cle.
The applicable legal principles are well established. The
Fourth Amendment prohibits unreasonable searches and sei-
zures and provides that "no warrant shall issue, but upon
probable cause." U.S. Const. amend. IV. Although law
enforcement officers may stop a vehicle that they observe is
violating a traffic law—a stop that amounts to a seizure for
purposes of the Fourth Amendment, see Terry v. Ohio, 392
U.S. 1, 16 (1968)—the officers may not detain the vehicle for
longer than necessary to accomplish the purposes of the stop,
Illinois v. Caballes, 543 U.S. 405, 407-08 (2005). Any deten-
tion longer than reasonably necessary to accomplish the pur-
poses of the stop must be justified by at least a reasonable
suspicion of other criminal activity. See id.; United States v.
8 UNITED STATES v. ORTIZ
Sokolow, 490 U.S. 1, 9 (1989); United States v. Mason, 628
F.3d 123, 128 (4th Cir. 2010); United States v. Foreman, 369
F.3d 776, 781 (4th Cir. 2004). A reasonable suspicion is dem-
onstrated when an officer is able to "point to ‘specific and
articulable facts which, taken together with rational inferences
from those facts, evince more than an inchoate and unparticu-
larized suspicion or hunch of criminal activity.’" United
States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008) (quoting
Terry, 392 U.S. at 27) (internal citations omitted). When an
officer has reasonable suspicion of criminal activity, he may
detain the suspect so as "to permit the officer to allay the sus-
picion." Mason, 628 F.3d at 128.
Of course, if the officer has probable cause to believe that
a search of the vehicle would uncover contraband, he may
search the vehicle, see United States v. Ross, 456 U.S. 798,
799-800 (1982); Carroll v. United States, 267 U.S. 132, 147-
49 (1925), and if he has probable cause to believe that the sus-
pect has committed a crime, he may arrest him, Herring v.
United States, 555 U.S. 135, 136 (2009). Probable cause is a
flexible standard that simply requires "a reasonable ground
for belief of guilt" and "more than bare suspicion." Brinegar
v. United States, 338 U.S. 160, 175 (1949). And a standard
requiring only a "reasonable ground for belief of guilt"
requires less of a showing than does the formal
preponderance-of-the-evidence standard. See Illinois v. Gates,
462 U.S. 213, 235 (1983) ("Finely-tuned standards such as
proof beyond a reasonable doubt or by a preponderance of the
evidence, useful in formal trials, have no place in the magis-
trate’s decision," because probable cause is "only the proba-
bility, and not a prima facie showing, of criminal activity");
see also United States v. Humphries, 372 F.3d 653, 660 (4th
Cir. 2004) ("[T]he probable-cause standard does not require
that the officer’s belief be more likely true than false").
A suspect’s consent to search provides an exception to the
Fourth Amendment’s warrant and probable cause require-
ments. See Florida v. Jimeno, 500 U.S. 248, 250-51 (1991).
UNITED STATES v. ORTIZ 9
Once a defendant voluntarily gives consent, a search that falls
within the scope of that consent is constitutionally permissi-
ble. See Schneckloth v. Bustamonte, 412 U.S. 218, 222
(1973). Moreover, any consent given is valid until it is with-
drawn by the defendant. United States v. Lattimore, 87 F.3d
647, 651 (4th Cir. 1996) (en banc).
These principles govern the proper disposition of this case,
and we begin with the question of whether the Maryland State
Police had probable cause to search Ortiz’s vehicle.
In the district court, the government argued that the Mary-
land State Police indeed had probable cause to believe that
Ortiz’s vehicle contained contraband. The government
pointed to a communication from the New Jersey State Police,
stating, "White Mitz. Montero NJ-YSY95E heading SB I-95
w/possible CDS n $$$." The communication also provided
the telephone number of New Jersey State Trooper Larry Wil-
liams, with whom Maryland State Trooper Gussoni spoke
after the Mitsubishi was discovered traveling southbound on
I-95 in Baltimore County. Trooper Williams told Gussoni that
the Mitsubishi "was being utilized to transport drugs and/or
money," as discovered in connection with a narcotics investi-
gation he was handling with the U.S. Drug Enforcement
Agency. Williams advised that, based on information received
from an informant, the vehicle was "usually transporting the
drugs and/or money in northern New Jersey and southern
New York." Williams indicated that he had arranged for a "si-
lent alert," which would call on law enforcement officers to
let Trooper Williams know if they spotted the vehicle so that
he could continue to trace its movements. Finally Trooper
Williams advised that he had received contact from another
New Jersey State trooper who observed the Mitsubishi head-
ing southbound on I-95 and approaching the Delaware Memo-
rial Bridge. Trooper Williams indicated that this course of
travel was "unusual based on Trooper Williams’ investiga-
tion." The government argued that all of this information,
coupled with the information developed by the Maryland
10 UNITED STATES v. ORTIZ
State Police after they stopped Ortiz, provided them with
probable cause to believe that contraband was in the vehicle.
The Maryland State Police observed the overwhelming odor
of air fresheners coming from Ortiz’s vehicle and the pres-
ence of multiple air fresheners in the vehicle; Ortiz’s uncer-
tainty about the ownership of the vehicle; Ortiz’s uncertainty
and confusion about his destination; and his nervousness.
Taken as a whole, the government maintained that this evi-
dence constituted probable cause which would justify a search
of the vehicle even had Ortiz not consented.
The district court found the facts as they were presented by
the government and concluded that they "gave rise to reason-
able suspicion" that criminal activity was afoot but could not
"be said to constitute probable cause." The court explained:
If one were to write on a clean slate . . . this combi-
nation of factors might be considered as justifying
the search of a vehicle being driven on a public road-
way, where the expectation of privacy may well be
deemed to be less than the expectation of privacy to
which one is entitled in a private home.
Perhaps what is needed is the formulation of a new
test for assessing the constitutionality of the search
of a vehicle on a public roadway, something between
"reasonable suspicion" and "probable cause." One
does not need to look far to find the test that argu-
ably should be applied. It is known to every lawyer
and judge and is found in the "more likely than not"
instruction concerning the "preponderance of the
evidence" standard that is routinely given in most
civil cases. Application of that test here would ren-
der the search of the vehicle that the defendant was
driving compliant with the Fourth Amendment
because the Troopers were certainly in possession of
information that made i[t] "more likely than not"
that drugs were located within the vehicle.
UNITED STATES v. ORTIZ 11
(Emphasis added). Thus, the district court assumed that the
reasonable suspicion standard was a less demanding standard
than the preponderance standard and that the preponderance
standard was a less demanding standard than the probable
cause standard. On that assumption, the court concluded that
the Maryland State troopers had, by a preponderance of evi-
dence, justified their belief that contraband was in the vehicle,
but that the preponderance standard was insufficient to estab-
lish probable cause.
This ruling erroneously elevated the probable cause stan-
dard to one more demanding than a preponderance. Probable
cause requires an officer to have a "reasonable ground for
belief of guilt"—"more than bare suspicion." Brinegar, 338
U.S. at 175 (emphasis added). A "reasonable ground" for
belief is less demanding than a standard requiring a prepon-
derance of the evidence for the belief. See Gates, 462 U.S. at
235; Humphries, 372 F.3d at 660 ("[T]he probable-cause stan-
dard does not require that the officer’s belief be more likely
true than false"). Thus, when the district court concluded that
a search of the vehicle would "more likely than not" have
uncovered contraband, it reached a conclusion that satisfied
the probable-cause standard and authorized the Maryland
State Police to search Ortiz’s vehicle.
While Ortiz summarily challenges any conclusion that the
officers had probable cause to believe that contraband was in
the vehicle, he fails to address the evidence or provide other
support for his challenge. The district court, however, found
as fact that the information available to the Maryland State
Police at the time of the search made it "more likely than not
that drugs were located within the vehicle," and we cannot
conclude, on the evidence presented, that the finding was
clearly erroneous.
From the evidence available to the troopers at the time of
the traffic stop, a reasonable officer would have a "reasonable
ground to believe" that drugs were in the vehicle. This stan-
12 UNITED STATES v. ORTIZ
dard is not particularly demanding, and the evidence need not
provide the officers with an air-tight case, nor even a case sat-
isfying the preponderance standard. Rather, the probable
cause standard is recognized to be a flexible, common sense
standard by which reasonable officers can conclude that what
they see, in light of their experience, supports an objective
belief that contraband is in the vehicle. The officers are, in
forming their belief, "given leeway to draw reasonable con-
clusions from confusing and contradictory information, free
of the apprehension that every mistaken search and seizure
will present a triable issue of probable cause." Taylor v. Far-
mer, 13 F.3d 117, 121-22 (4th Cir. 1993).
Accordingly, we affirm the district court’s finding insofar
as the court found that the Maryland State troopers "were cer-
tainly in possession of information that made it ‘more likely
than not’ that drugs were located in the vehicle," but we
reverse its legal conclusion that such a finding was insuffi-
cient to give the troopers probable cause. We conclude that it
did and therefore that the search of Ortiz’s vehicle was justi-
fied by probable cause.
We also conclude, as an additional basis for our decision,
that the officers’ search was supported by Ortiz’s voluntary
consent, given twice, to search the vehicle—once when he
gave permission to search the vehicle for drugs and again
when he gave consent to search the vehicle to determine
whether it was stolen.
During the course of the traffic stop, Ortiz granted Trooper
Gussoni permission to search the vehicle for drugs, stating
that "he was in no rush, [the troopers] could take [their] time,
and [they] were free to search his vehicle." The district court
discounted this consent because the officers, by their own
admission, chose not to rely on it due to a Maryland State
Police policy that instructs officers to formally terminate a
traffic stop before conducting searches for items unrelated to
the traffic violation. The court also suggested to counsel that
UNITED STATES v. ORTIZ 13
this consent was "vitiated" by Trooper Decker’s statement to
Ortiz that he was free to leave.
The district court’s reasoning, however, fails to recognize
that once voluntary consent is given, it remains valid until it
is withdrawn by the defendant. See Lattimore, 87 F.3d at 651.
It is irrelevant that the officers, for their own reasons, chose
to secure a second consent before searching Ortiz’s vehicle,
and it is also beside the point that Trooper Decker told Ortiz
he was free to leave. The facts remain that Ortiz voluntarily
relinquished his right to object to a drug search when he gave
the consent to search for drugs; he never withdrew that con-
sent; and the search that ultimately took place was conducted
within the scope of that consent.
In response to the troopers’ request made after they com-
pleted the traffic stop, Ortiz also gave the officers consent to
search for signs of auto theft or tampering. With respect to
this consent, the district court found that a reasonable person
would have had "no reason to anticipate" that a search for
signs of automobile theft would involve subjecting the "entire
vehicle" to "an intrusive search." The court therefore con-
cluded that the search, which included lifting up the rear seat
to locate the concealed VIN, exceeded the scope of consent
given by Ortiz.
The problem with this conclusion is that the court substi-
tuted its notions about how to search for signs of vehicle theft
for the undisputed testimony of experienced law enforcement
officers testifying as to how such a search ought to proceed.
At the suppression hearing, the Maryland State troopers testi-
fied, without contradiction, that a thorough tampering or theft
inspection would include a search for a popped ignition, a
shaved key, low-hanging wires, tools to facilitate theft, such
as screwdrivers or bolts, broken windows, damage to exterior
locks, and the concealed VIN. Some of these items, such as
low-hanging wires or a broken window, would have been
within the plain view of the searching officer and therefore
14 UNITED STATES v. ORTIZ
would not have justified an intrusive search. But other items
—such as tools to facilitate auto theft or a concealed VIN—
could well have required inspections of "remote and barely
accessible places[s]" that could not be inspected by simply
glancing at the vehicle. See United States v. Powers, 439 F.2d
373, 374 (4th Cir. 1971) (officers had to "g[e]t beneath the
car" to locate the confidential VIN).
In refusing to allow the officers to search the entire vehicle,
including under the rear seat, the district court reasoned that
Ortiz "had no reason to anticipate" that a search for signs of
theft or tampering would extend so broadly. See Jimeno, 500
U.S. at 251 (the standard for measuring the scope of a sus-
pect’s consent under the Fourth Amendment is that of "objec-
tive reasonableness—what would the typical reasonable
person have understood by the exchange between the officer
and the suspect"). Ortiz, however, did not verbalize his expec-
tations to the officers or restrict the scope of their search in
any way. Moreover, he observed the troopers as they con-
ducted the search and made no objection. The only limitation
attached to the search was imposed by Trooper Decker when
he said he would be searching for signs of theft or tampering.
We conclude that by giving consent to search for signs of
theft or tampering, which was not limited by Ortiz or the offi-
cers to a search for a particular object, Ortiz effectively gave
the officers consent to search for evidence of theft or tamper-
ing as a reasonable officer would find necessary in conducting
such a search. See United States v. Marshall, 348 F.3d 281,
287 (1st Cir. 2003) (where scope of consent was limited to
evidence of burglary, "[t]he standard for measuring the scope
of a search is one of objective reasonableness, not the con-
senting party’s subjective belief"); see also United States v.
Smith, 395 F.3d 516, 519 (4th Cir. 2005) ("[T]he Fourth
Amendment does not even require that the suspect actually
consent to a government search; factual determinations by the
government, such as the presence of consent, must be reason-
able, but are not required always to be correct"). To be sure,
UNITED STATES v. ORTIZ 15
the officers would have exceeded the scope of Ortiz’s consent
by conducting the search in a manner that bore no reasonable
relationship to an effort to uncover signs of theft or tamper-
ing, but the officers testified, without dispute, that the scope
of the search that they actually conducted was directly con-
nected to looking for signs of theft.
In sum, we conclude that the Maryland State Police troop-
ers had probable cause to believe that Ortiz’s vehicle con-
tained contraband and therefore were entitled to search it
under the principles of Carroll, 267 U.S. at 149, and alterna-
tively that the troopers had Ortiz’s consent to search the vehi-
cle and conducted their search within the scope of that
consent. Accordingly, we reverse the district court’s decision
granting Ortiz’s motion to suppress and remand this case for
further proceedings.
REVERSED AND REMANDED