United States v. Alexis A. Brugal Henry M. Adames, M/o Reyna M. Dejesus, F/o

HAMILTON, Circuit Judge,

dissenting:

Because Trooper Lawson possessed reasonable suspicion that criminal activity was afoot, he was constitutionally entitled to direct Brugal to pull his vehicle over to the side of the road to conduct a further investigation. Because Brugal’s subsequent consent to allow Trooper Lawson to search the vehicle was voluntary, the evidence seized during the search should not have been suppressed by the district court. Accordingly, I would vacate the district court’s grant of Brugal’s motion to suppress and remand for further proceedings.

I

The majority concludes that Brugal’s continued detention after his license and rental agreement were verified was constitutionally improper. In reaching this conclusion, the majority does not contest, nor could it, the validity of the initial traffic checkpoint stop. See ante at 209-10. Accordingly, we are concerned only with Trooper Lawson’s decision to direct Bru-gal to pull his vehicle over to the side of the road.

It is settled that an ordinary traffic stop is a limited seizure and is more akin to an investigative Terry stop than a custodial arrest. See United States v. Rusher, 966 F.2d 868, 875 (4th Cir.1992). This court therefore assesses the reasonableness of traffic stops under the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Rusher, 966 *213F.2d at 875. Terry asks “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. 1868. “If the initial traffic stop was illegal or the officers exceeded the stop’s proper scope, the seized contraband is excluded under the ‘fruit of the poisonous tree doctrine.’ ” Rusher, 966 F.2d at 875.

Once an officer effectuates a routine traffic stop, the officer “ ‘may request a driver’s license and vehicle registration, run a computer check, and issue a citation.’ ” Id. at 876 (quoting United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988)). Once the driver produces a valid license and proof that he is entitled to operate the vehicle, the driver must be permitted to proceed. See id. “Any further detention for questioning is beyond the scope of the Terry stop and therefore illegal unless the officer has a reasonable suspicion of a serious crime.” Id. at 876-77. “Whether such an investigative detention is supported by an objectively reasonable suspicion of illegal activity does not depend upon any one factor, but on the totality of the circumstances.” United States v. Soto, 988 F.2d 1548, 1555 (10th Cir.1993). In assessing whether reasonable suspicion is present, we review the district court’s findings of historical fact for clear error and the determination of reasonable suspicion de novo. See Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).

The Supreme Court has recognized that factors consistent with innocent travel can, when taken together, give rise to reasonable suspicion. See United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (“[Ajnyone of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion.”). In Sokolow, the defendant was stopped at Honolulu International Airport by Drug Enforcement Administration (DEA) agents, who found a large amount of cocaine in his carry-on luggage. See id. at 3, 109 S.Ct. 1581. The DEA agents had the following information before approaching the defendant: (1) he paid $2,100 cash for two airplane tickets from a roll of $20 bills; (2) he traveled under a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only forty-eight hours, even though a round-trip flight from Honolulu takes twenty hours; (5) he appeared nervous during his trip; and (6) he checked none of his luggage. See id. The Court emphasized the necessity of considering the totality of the circumstances in order to evaluate the existence of reasonable suspicion. See id. at 8, 109 S.Ct. 1581. The Court attached particular significance to the defendant’s payment of cash, to the length of his trip, and to the agents’ reasonable belief that he was traveling under an alias, considering these facts as “out of the ordinary.” Id. at 8-9, 109 S.Ct. 1581. Thus, as applied to this case, Sokolow teaches us that it is not enough that Trooper Lawson could articulate factors underlying his decision to instruct Brugal to pull his vehicle over to the side of the road if Trooper Lawson’s articulated factors are not probative of behavior in which few innocent people would engage. The articulated factors together must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied.

Trooper Lawson’s decision to instruct Brugal to pull his vehicle over to the side of the road arose from the following circumstances: (1) 1-95 is a major thoroughfare for narcotics trafficking; (2) Brugal was the only non-local or non-Charleston resident who got off at Exit 22 immediately after passing two well-lit decoy drug checkpoint signs in the northbound lane on 1-95; (3) Brugal had a New York State driver’s license; (4) Brugal rented the ve-*214hide in Miami; (5) a common practice of drug couriers is to fly to Miami, acquire drugs, rent a vehicle, and drive north; (6) Brugal indicated that he was searching for gas even though he had a quarter tank of gas; (7) the Shell gas station referred to by the travel advisory sign cannot be seen from 1-95, and the exit showed no signs of activity at 3:30 a.m.; (8) the defendants were traveling at 3:30 a.m.; and (9) Brugal and his passengers only had three small bags which, according to Trooper Lawson, was insufficient luggage for three persons, two males and one female, traveling from Miami to Virginia Beach. .

In their totality, the factors articulated by Trooper Lawson eliminate a substantial portion of innocent travelers; therefore, Trooper Lawson possessed reasonable suspicion to instruct Brugal to pull his vehicle over to the side of the road to conduct a further investigation. Trooper Lawson observed Brugal exit 1-95 immediately after passing two decoy drug checkpoint signs that were illuminated. Now, if the area around the exit following the decoy drug checkpoint signs showed signs of activity at 3:30 a.m., an indication that hotels, convenience stores, and gas stations were in operation, a limited significance could attach to leaving 1-95 at such an exit. But, Exit 22 showed no signs of activity at 3:30 a.m. Because Exit 22 showed no signs of activity at 3:30 a.m., any driver’s selection of this exit gets the reasonable suspicion juices flowing.

At the checkpoint, Brugal produced a New York State driver’s license and a rental agreement indicating that the vehicle was rented in Miami by Brugal and that Brugal had a New York City address. While reviewing Brugal’s license and rental agreement, Trooper Lawson asked Brugal where he was headed, and Brugal responded “Virginia Beach.” Trooper Lawson then asked Brugal why he got off at Exit 22 if his destination was Virginia Beach, and Brugal responded that he did so in order to find gas. Trooper Lawson then noticed that Brugal had a quarter of a tank of gas.

At this point, based on his knowledge and experience, Trooper Lawson, who had been a State Trooper for eighteen years, had reasonable grounds to conclude that Brugal fit the profile of a drug courier from New York City who flew to Miami, rented a vehicle, and was attempting to return to New York City. Trooper Lawson testified that, based on his knowledge and experience, drug couriers fly to Miami from a northern destination, such as New York, to obtain drugs, rent a vehicle, and return north with the drugs. Admittedly, standing alone, there is nothing atypical about an individual from New York City renting a vehicle in Miami. I am sure many individuals from New York City do so. So these two facts, New York City resident and vehicle rental in Miami, standing alone, do not support the inference that Brugal was a drug courier who flew from New York City to Miami. However, these two facts must be considered with other facts observed by Trooper Lawson. Brugal’s vehicle was stopped in South Carolina while traveling northbound on 1-95 from Miami at 3:30 a.m. 1-95 is a major drug thoroughfare. At the checkpoint, Brugal informs Trooper Lawson that he is looking for gas. Although 1-95 contained a traveler’s advisory sign for a Shell gas station, several facts keep suspicions high. First, as noted above, Exit 22 showed no signs of activity at 3:30 a.m. Second, Brugal’s vehicle had at least a quarter of a tank of gas. Third, Brugal just passed an exit, Exit 21, with several well-lit twenty-four hour gas stations. In light of these facts, any reasonable officer would remain suspicious of the driver’s activities. In other words, a reasonable officer could conclude that few innocent travelers from New York City are traveling northbound on 1-95 in South Carolina at 3:30 a.m. in a vehicle rented in Miami fourteen hours earlier,1 exiting the inter*215state after passing two decoy drug checkpoint signs, and looking for gas at an exit that shows no signs of activity, even though they had just passed three well-lit gas stations and had at least a quarter of a tank of gas. In short, given the deference that this court is required to give to Trooper Lawson’s experience, see United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993) (noting that we should “credit[ ] the practical experience of officers who observe on a daily basis what transpires on the street”), Trooper Lawson’s conclusion that Brugal fit the profile of a drug courier from New York City who flew to Miami, rented a vehicle, and was attempting to return to New York City was eminently reasonable.

The reasonable conclusion that Trooper Lawson drew from his observations creates a rather out of the ordinary travel scenario for Brugal. Why would an individual from New York City fly to Miami, rent a vehicle, and drive to Virginia Beach? Obviously, one can conceive of instances where an individual from New York City would travel to Miami, rent a vehicle, and drive to Virginia Beach. For example, an individual from New York City could be driving an individual from Miami who wished to go to Virginia Beach and did not like to fly, ride on a train, ride on a bus, or drive alone. However, common sense tells us that it is significantly more probable that Brugal flew from New York City to Miami, a source city for drugs, acquired drugs, and, instead of flying with the drugs on an airplane, rented a vehicle in Miami to transport the drugs to New York City.

The majority downplays this common sense interpretation of Brugal’s travel itinerary in two ways. The majority first reasons that “there is no evidence that Brugal was traveling to New York.” Ante at 210. However, as explained above, all the evidence suggests that Trooper Lawson had reasonable grounds to conclude that Brugal fit the profile of a drug courier from New York City who flew to Miami, rented a vehicle, and was attempting to return to New York City with drugs.

Second, the majority reasons that because Brugal’s rental agreement required him to return the vehicle to Miami in a week, as opposed to dropping it off in New York City, Brugal’s activities did not fit a “general pattern of drug trafficking behavior.” Ante at 211. The flaw in the majority’s analysis is revealed by examining two alternative explanations which place Bru-gal’s activities squarely within a general pattern of drug trafficking behavior. First, if a one-way rental fits the drug courier profile (as opposed to simply renting a vehicle), an individual skilled in the drug trade would want to rent a vehicle on a round-trip basis to avoid suspicion. Thus, Brugal’s plan could have been to, after the deal was consummated in New York City, drop the vehicle off at any Alamo car rental in New York City and pay the attendant penalty. Alternatively, Brugal’s plan could have been to fly to Miami, acquire the drugs on the front, rent a vehicle, and drive to New York City with the drugs. After consummating a deal in New York City, Brugal would then drive to Miami instead of boarding a plane with the large amount of cash generated by a deal involving eight kilograms of cocaine and one kilogram of heroin. These two alternative explanations demonstrate Bru-gal’s rental of the vehicle in Miami itself is relevant to the reasonable suspicion analysis and not the duration of Brugal’s rental. Accordingly, the duration of Brugal’s rental does not compel the conclusion that his activities did not fit a “general pattern of drug trafficking behavior.” Ante at 211.2

*216Under Sokolow, an officer’s articulated factors in their totality must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied. In this case, Trooper Lawson’s articulated factors met this burden. Indeed, few, if any, innocent individuals from New York City, fly to Miami, rent a vehicle to drive to Virginia Beach, proceed to drive most of the day and night on 1-95, exit the interstate after passing two decoy drug checkpoint signs, and look for gas at an exit that shows no signs of activity at 3:30 a.m., when they have just past three well-lit gas stations and have at least a quarter of a tank of gas.

Finally, I must address the validity of Brugal’s consent to the search. “A defendant who voluntarily consents to a search waives his Fourth Amendment rights, and the police officer may conduct the search without probable cause or a warrant.” United States v. Perrin, 45 F.3d 869, 875 (4th Cir.1995); see also Schneckloth v. Bustamonte, 412 U.S. 218, 235, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In assessing the voluntariness of an individual’s consent, the court should examine the totality of the circumstances. See United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041.

After Brugal pulled his vehicle over to the side of the road, Trooper Lawson activated the mounted video camera in his vehicle which was now located directly behind Brugal’s vehicle. Brugal then stepped out of his vehicle, and Trooper Lawson asked Brugal if he had any drugs in the vehicle. Trooper Lawson also asked Brugal if he could search the vehicle, and Brugal responded “no problem.” Trooper Lawson repeated his request to search and, again, Brugal responded “no problem.” During his search, Trooper Lawson discovered two pieces of luggage that contained packages slightly larger than bricks. It was later discovered these two pieces of luggage contained approximately eight kilograms of cocaine and one kilogram of heroin.

Nothing in the record suggests that Brugal did not voluntarily consent to the search. No evidence suggests that the police used coercive tactics to gain .Bru-gal’s consent. Under the facts of this case, the search of Brugal’s vehicle was consensual and consistent with the Fourth Amendment.

II

In sum, because Trooper Lawson possessed reasonable suspicion that criminal activity.was afoot, he was constitutionally entitled to direct Brugal to pull his vehicle over to the side of the road. Because Brugal’s subsequent consent to allow Trooper Lawson to search the vehicle was voluntary, the evidence seized during the search should not have been suppressed by the district court. Accordingly, I would vacate the district court’s grant of Brugal’s motion to suppress and remand for further proceedings.

. Brugal rented the vehicle at 1:36 p.m. on October 30, 1997. Therefore, between the *215time he rented the vehicle and the time he exited Exit 22, approximately fourteen hours had elapsed. The distance between Miami and Exit 22 is approximately 515 miles.

. If Brugal’s rental agreement did in fact accurately reflect the length of time he intended to rent the vehicle in question, the three small pieces of luggage that Brugal and his passengers carried with them becomes more signifi*216cant in the reasonable suspicion analysis. Obviously, a reasonable officer would find it unusual for three adults to carry only three small pieces of luggage for a week-long trip from Miami to Virginia Beach and back to Miami.