United States Court of Appeals
Fifth Circuit
In the FILED
United States Court of Appeals August 23, 2006
for the Fifth Circuit Charles R. Fulbruge III
_______________ Clerk
m 05-50683
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TOMMIE DARNELL JENSON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m 04-CR-190-ALL
_________________________
Before SMITH and STEWART, Circuit Judges, Ohio, 392 U.S. 1 (1968). We reverse and re-
and CRANE,* District Judge. mand for entry of a judgment of acquittal.
JERRY E. SMITH, Circuit Judge: I.
Slightly before 11:00 p.m. on June 4, 2004,
Tommie Jenson appeals the denial of his DPS Trooper Eric Gray noticed a van travel-
motion to suppress evidence as a violation of ing east on I-20 at 77 mph where the speed
his Fourth Amendment rights under Terry v. limit was 65 mph. He decided to stop it for
speeding, but after putting on his emergency
lights Gray stated that it took between thirty
*
District Judge of the Southern District of seconds and a minute for the van to come to a
Texas, sitting by designation.
complete stop.1 The officer was driving with Though Jenson was calm and cooperative
a civilian passenger and mentioned to her the at the time of the initial stop, he became ex-
suspicion that the passengers in the van may cessivelytalkative, answering questions that he
have been trying to conceal something or cor- was not asked, which Gray surmised to mean
roborate stories. he was nervous. Jenson continued to exhibit
this behavior even after being issued the
When Gray approached the van, he noticed warning, which Gray found odd because in his
Jenson, who was the driver, and a woman in experience, a driver normally becomes less
the passenger seat and a man in the back seat, agitated when he realizes he is not receiving a
both of whom were asleep. Gray informed citation.
Jenson he had been stopped for speeding and
asked him to step to the rear of the van. Jen- At 11:04 (two minutes after Jenson’s li-
son complied and proceeded to answer Gray’s cense cleared), Gray again asked Jenson where
questions concerning Jenson’s employment he worked, and he replied “Tommie and Cot-
and the purpose of his trip. Jenson told Gray ton,” or “Tommie-Cotton,” presumably refer-
that he worked in construction with his uncle ring to his construction business with his un-
Cotton and that they were traveling to Bry- cle. Gray then asked Cotton where he
an-College Station to pick up his uncle’s wife. worked, and he replied that he was self-em-
ployed and that his business did not have a
Jenson and his passengers provided Gray name. Gray found the discrepancy between
with drivers’ licenses, and Gray ran the licens- the two answers suspicious.2
es to determine whether they were valid and
whether there were any outstanding warrants. Gray then asked for Jenson’s permission to
At 11:02 Gray received word from dispatch search the van, which was granted. There is
that the licenses were clear. no indication that Gray, before requesting per-
mission, told Jenson he was free to leave.
It is uncertain when Gray gave Jenson the Gray then told Jenson that he would need to
written warning, though it probably occurred conduct a pat-down search before he could
before Gray asked Jenson’s permission to search the vehicle. Gray later testified that it
search his vehicle. Gray stated he was “prob- was standard procedure to frisk occupants of
ably close to finishing” the warning at the time a car before proceeding with a search, to en-
he heard from dispatch. He could not recall sure the officer’s safety while he was other-
when he returned the license, though he noted wise occupied.
it was his usual practice to return it at the same
time he issued the warning. Jenson suddenly became upset and com-
plained of harassment. He started emptying
his pockets, at which point Gray unholstered
1
The videotape introduced by the government
his weapon and told Jenson to put his hands
starts in the middle of the traffic stop, but it reveals
that Jenson took at least thirty seconds to move to
2
the side of the road and come to a complete stop. Although the government’s brief implies that
For the duration, Jenson was driving in the this exchange occurred before Gray checked the
rightmost lane with his signal on and very little licenses, counsel for the government conceded at
traffic on the road. oral argument that it occurred afterward.
2
behind his back. the traffic stop at its inception. Therefore, the
sole issue on appeal is whether the officer’s
Gray conducted the frisk and found a pock- subsequent actions, including his request to
etknife and a small “two-shooter” gun on Jen- search the vehicle and his pat-down search of
son’s person. Gray put Jenson in his patrol car Jenson’s person, were reasonably related to
and ran a criminal background check, which the circumstances justifying the stop.
revealed that Jenson was a convicted felon.
Jenson was brought to jail, where another Several of Gray’s actions are plainly per-
officer found a bag of marihuana in his sock. missible under our caselaw. An officer may
ask for a driver’s license and registration of the
Jenson filed, and the court denied, a motion occupants and may run a computer check on
to suppress evidence for violation of the both. See id. at 509. He also may ask the
Fourth Amendment. He was convicted of one occupants about their intended destination.
count of being a felon in possession of a fire- See id. at 510.
arm and one count of being an unlawful user
of a controlled substance in possession of a “[W]e reject any notion that a police offi-
firearm. cer’s questioning, even on a subject unrelated
to the purpose of the stop, is itself a Fourth
II. Amendment violation . . . . [D]etention, not
When reviewing the denial of a motion to questioning, is the evil at which Terry’s second
suppress, we review findings of fact for clear prong is aimed.” United States v. Shabazz,
error and conclusions of law de novo. Ornelas 993 F.2d 431, 436 (5th Cir. 1993). We must
v. United States, 517 U.S. 690, 699 (1996). also be careful, when conducting a Terry
We construe all facts in the light most favor- analysis, to allow “officers to draw on their
able to the government as the prevailing party. own experience and specialized training to
See United States v. Santiago, 310 F.3d 336, make inferences from and deductions about
340 (5th Cir. 2002). We analyze the validity the cumulative information available to them
of traffic stops under Terry, 392 U.S. at 21, that might well elude an untrained person.”
which held that “limited searches and seizures Brigham, 382 F.3d at 507 (quoting United
are not unreasonable when there is a reason- States v. Arvizu, 534 U.S. 266, 273 (2002))
able and articulable suspicion that a person has (internal quotations omitted).
committed a crime.” Santiago, 310 F.3d at
340. We employ a two-part test to determine Detention, however, may last no longer
whether there was “reasonable suspicion”: than required to effect the purpose of the stop.
“whether the officer’s action was justified at its See United States v. Lopez-Moreno, 420 F.3d
inception, and . . . whether the officer’s 420, 430 (5th Cir. 2005) (quoting Brigham,
subsequent actions were reasonably related in 382 F.3d at 507). If all computer checks come
scope to the circumstances that justified the back clean, then as a general matter reasonable
stop.” United States v. Brigham, 382 F.3d suspicion disappears, and there is no legitimate
500, 506 (5th Cir. 2004) (en banc) (citing reason for extending the stop. See id. at 431.
Terry, 392 U.S. at 19-20). “A recognized exception to this rule is that if
additional reasonable suspicion arises in the
Jenson concedes that his speeding justified course of the stop and before the initial pur-
3
pose of the stop has been fulfilled, then the evidence that he did so.4
detention may continue until the new reason-
able suspicion has been dispelled or con- Therefore, the specific issue of first impres-
firmed.” Id. The government offers three rea- sion is whether taking an unusual amount of
sons why there was reasonable suspicion to time to pull over, coupled with nervous behav-
extend Jenson’s traffic stop beyond 11:02 (the ior by the driver, amounts to reasonable suspi-
time the licenses cleared): (1) It took an un- cion to justify prolonged detention. We have
usually long time for Jenson’s van to pull over, previously found detentions unreasonable,
(2) Jenson’s excessive talkativeness indicated based on the totality of the circumstances,
nervousness, and (3) Jenson and Cotton where the driver exhibited signs of nervous-
appeared to give inconsistent answers. ness.5 It may be that Jenson’s signs of ner-
vousness were more probative when coupled
We decline to consider Jenson’s and Cot- with the delay in pulling over. We accord
ton’s contradictory answers, because the al- great respect to Gray’s testimony, as a trained
leged inconsistency did not arise until 11:04 law enforcement officer, that it was unusual
and therefore not “before the initial purpose of for the van not to brake when the police car
the stop [had] been fulfilled.” Lopez-Moreno, activated its emergency lights and that it took
420 F.3d at 431. Even if we did consider the an above-average time for Jenson to pull over.
conflicting statements, it would be unreason-
able to become suspicious based on the state- This modest delay in stopping time does not
ments made. by itself, however, give rise to reasonable
suspicion. It may take drivers different
When asked about his employment, Jenson amounts of time, especially at night, to identify
replied that he worked for his uncle in con- the lights of the car behind them as coming
struction and that the name of the business was from a police car and not from another
“Tommie-Cotton” or “Tommie and Cotton,” emergency services vehicle. It may also take
presumably combining his and his uncle’s some time for the driver to recognize that the
names. Cotton, in turn, answered that he was officer intends for him to stop and safely turn
“self-employed,” which is not by itself in- onto the shoulder, as opposed to, for example,
consistent with having a nephew as an em- taking the next exit so as to be out of the dan-
ployee.3 He also stated that his business did ger of traffic.
not have a name, but Jenson may have merely
given a descriptive title for the two-man oper- 4
ation, instead of a formal name, when pressed. See Florida v. Royer, 460 U.S. 491, 500
Gray easily could have dispelled his suspicions (1983) (explaining that an officer should use “the
by asking a follow-up question such as “Do least intrusive means reasonably available to verify
or dispel the officer’s suspicion in a short period of
you work with your nephew?,” but there is no
time”).
5
See Santiago, 310 F.3d at 338 (in which the
3
“Self-employed” is defined as “earning income driver exhibited “extreme nervousness,” including
directly from one’s own business, trade, or shaking hands); Dortch, 199 F.3d at 199-200 (in
profession rather than as a specified salary or wag- which the driver appeared nervous and “gazed
es from an employer.” WEBSTER’S THIRD NEW around as if he was looking for a place to run”)
INTERNATIONAL DICTIONARY 2060 (1986). (internal quotations omitted).
4
We do not mean to say that excessive delay eral statements do not amount to an “articul-
in stopping may never give rise to reasonable able suspicion that a person has committed or
suspicion; there may be cases, for example, in is about to commit a crime,” as opposed to a
which further context, such as erratic driving, mere hunch. Royer, 460 U.S. at 498 (empha-
acceleration, or passenger movement inside sis added).
the vehicle further suggest criminal behavior.
Here, however, thirty seconds to a minute was In contrast, we have found a search reason-
a reasonable amount of time for Jenson to re- able where the officer specifically suspected
spond to the flashing of the emergency lights. drug trafficking because the defendant was
traveling on a known drug corridor (also I-20),
Also, the facts of this case are relatively had been arrested for trafficking in the past,
weak by comparison to the facts in our rele- did not have a driver’s license, and was 500
vant precedents. For example, in Jones there miles away from the road leading to his alleged
was no reasonable suspicion to search the ve- destination. See United States v. Reyes
hicle even though one of the occupants had a Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003).
previous arrest on a crack cocaine charge. See In Santiago, we found a search unreasonable
234 F.3d at 242.6 Likewise, in Santiago we even though the officer testified that he
found a search unreasonable even though the thought the car might contain narcotics, be-
defendant lied to the officer about the identity cause the fact that the licenses cleared should
of a passenger. See 310 F.3d at 338-39. have dispelled any suspicion of drug traffick-
ing. See Santiago, 310 F.3d at 339, 342; ac-
More importantly, the government does not cord Dortch, 199 F.3d at 199 (no reasonable
present adequate evidence of a nexus between or articulable suspicion of drug trafficking).
Jenson’s allegedly suspicious behavior and any
specific criminal activity. Gray said that while Likewise, the officer here has not articu-
pulling over the vehicle, he thought the lated any particular connection between the al-
passengers might be trying to conceal some- legedly suspicious behavior and drug or weap-
thing or get their explanations straight before ons possession, beyond the fact that the driv-
stopping. He testified that the three suspicious er’s hesitation in pulling over may have been
factors he identified were evidence that “some- the product of intent to conceal. In short, the
thing may be going on in the van that was government has not shown reasonable sus-
illegal that they possibly didn’t want me to picion to prolong Jenson’s traffic stop.7
see.” When Jenson became visibly agitated
after Gray told him he was about to conduct a
pat-down search, Gray testified that he 7
Nor does it affect our analysis that only four
thought he had “identified a criminal act.” At
minutes elapsed between the ID clearance and
11:18, after Gray had searched the vehicle, he Jenson’s consent to the search. The government
told his civilian passenger that when you feel argues that the officer’s actions were a natural pro-
something is illegal, you know it. These gen- gression and a reasonable extension of the initial
stop. In Dortch, however, we found a Terry
violation even though it took “five minutes or less”
6
See also Dortch, 199 F.3d at 196, 199 (find- between the ID clearance and the arrival of a K-9
ing that defendant’s criminal record did not give unit to search defendant’s car. Dortch, 199 F.3d at
rise to reasonable suspicion). (continued...)
5
III. Jones, 234 F.3d at 242 (citing Shabazz, 993
The government contends that, even if the F.2d at 438). The government bears the bur-
officer unreasonably extended the traffic stop den of proving that consent was voluntary.
beyond the point at which the van’s occupants’ See id. We review a finding of voluntariness
ID’s were cleared, Jenson’s consent to search for clear error. See Shabazz, 993 F.2d at 438.
cured any Fourth Amendment problem. “Con-
sent to search may, but does not necessarily, The district court found that consent was
dissipate the taint of a fourth amendment voluntary because Gray did not request con-
violation.” United States v. Chavez-Villarreal, sent until after the stop was completed and the
3 F.3d 124, 127 (5th Cir. 1993).8 To warning issued, and Jenson was at all times
determine whether consent was validly given, cooperative and seemed to understand and be
we ask (1) whether consent was voluntary and able to communicate with the trooper. The
(2) whether it was an independent act of free court noted, however, that Jenson would have
will. See Santiago, 310 F.3d at 342 (citing been aware of the incriminating evidence on
Chavez-Villarreal, 3 F.3d at 127). his person, though none was found in the ve-
hicle.9 Because the question is close, we con-
We use a multi-factor test to determine clude the court did not commit clear error.
whether consent was voluntary, in which we
consider Even assuming, however, that the court
correctly concluded that consent was volun-
(1) the voluntariness of the defendant’s tary, it committed error by not applying the
custodial status; (2) the presence of coer- second prong of the test: whether consent was
cive police procedures; (3) the extent and an independent act of free will.10 The purpose
level of the defendant’s cooperation with
the police; (4) the defendant’s awareness of
his right to refuse consent; (5) the defen- 9
Also, as previously noted, the government did
dant’s education and intelligence; and not present evidence that Jenson’s license had been
(6) the defendant’s belief that no incrimi- returned to him before consent was requested and
nating evidence will be found. did not prove that Jenson had been informed he was
free to go. Given the burden of proof, we draw an
adverse inference against the government on these
facts. See Santiago, 310 F.3d at 343 n.4.
7
(...continued)
10
203 (Garwood, J., dissenting). It is not the dura- See Jones, 234 F.3d at 243 (opining that even
tion of time, but the quantity of evidence, that de- assuming that consent was voluntary, “it is clear
termines whether reasonable suspicion survives the that the government failed to prove that the consent
officer’s background check. In this case, there was was an independent act of free will and that the
insufficient reason for suspicion to continue once district court erred by not considering the second
Jenson’s ID cleared; a constitutional violation prong of the consent inquiry, which is required
occurred the moment the detention continued past when a constitutional violation has preceded the
that point. consent”); Dortch, 199 F.3d at 202 (“[E]ven if
[defendant’s] consent was voluntarily given, and
8
See also Brigham, 382 F.3d at 508 (stating the district court’s determination therefore was not
that “a consensual interrogation may follow the end clearly erroneous, the consent was not valid.
of a valid traffic stop”). (continued...)
6
of this inquiry is to determine whether there We note also that the evidence was ulti-
was a “break in the causal chain” between the mately discovered on Jenson’s person, pursu-
constitutional violation and the consent; that is ant to a pat-down search, not in the vehicle
to say, consent cannot be the product of the il- that Jenson gave Gray permission to inspect.
legal detention. See Santiago, 310 F.3d It is without question that Jenson did not con-
at 343. sent to the pat-down search, but limited
pat-down searches are permissible “for the
To determine whether consent was inde- protection of the police officer, where he has
pendent, we consider “1) the temporal prox- reason to believe that he is dealing with an
imity of the illegal conduct and the consent; armed and dangerous individual, regardless of
2) the presence of intervening circumstances; whether he has probable cause to arrest the
and 3) the purpose and flagrancy of the initial individual for a crime.” Terry, 392 U.S.
misconduct.” Jones, 234 F.3d at 243. at 27.12
Though the initial officer misconduct was not
flagrant, the first two factors cut decidedly There is no Terry violation “if the searching
against the government. officer can point to specific and articulable
facts suggesting actual physical risk to himself
The consent followed closely on the heels or others.” Sink, 586 F.2d at 1048. When
of the illegal detention, and there is no evi- Gray informed Jenson he would conduct a pat-
dence that (a) Jenson knew he was free to down search, Jenson became upset, com-
leave or (b) that his license had been returned plained of harassment, and began emptying his
to him, both of which might be viewed as in- pockets. Although we do not question Gray’s
tervening circumstances.11 In Jones we found decision to conduct a frisk in response to such
the causal chain had not been broken where nervous behavior, the suspicious conduct
the officers “appeared to knowingly prolong occurred only after reasonable suspicion to
the detention” by purposely failing to return continue the detention had been dispelled and
one of the passenger’s ID’s. Id. We give the Gray had obtained involuntary consent to
same legal effect today to the failure of the search the vehicle.
government to meet its burden of proving that
Jenson’s consent was independently given. Under the fruit of the poisonous tree doc-
trine, “all evidence derived from the . . . illegal
search . . . must be suppressed, unless the gov-
10
ernment shows that there was a break in the
(...continued) chain of events sufficient to refute the infer-
Instead, because the causal chain between the ence that the evidence was a product of the
illegal detention and Dortch’s consent to a third constitutional violation.” Dortch, 199 F.3d at
body search was not broken, the search was
200-01. The police would not have discov-
nonconsensual.”).
ered either Jenson’s gun or marihuana but for
11
But see Dortch, 199 F.3d at 196, 198 (de- the search of his person, and the police would
ciding that statement that defendant was free to not have searched his person had they not il-
leave was ineffectual where police detained vehicle
and license, and defendant driver “could not
12
reasonably be expected to wander off down the See also United States v. Sink, 586 F.2d
highway in an unfamiliar area”). 1041, 1047-48 (5th Cir. 1978).
7
legally extended the stop beyond the time there was no Terry violation, there was no
when reasonable suspicion expired. Therefore, need to inquire whether consent was
the evidence is fruit of the poisonous tree and constitutionally tainted. See id. at 512. Here,
must be suppressed.13 however, the request to search occurred after
defendant’s license cleared, and as instructed
IV. by Dortch, Jones, and Santiago, there was no
The government cites Brigham to support reasonable suspicion to justify prolonging the
its argument, but on close inspection it does search, nor was the consent given
not apply to these facts. There we found that independently of the illegal detention.14
the police had reasonable suspicion to search
defendant’s vehicle where the defendant driver The conviction is REVERSED, and this
(1) was not the lessee of the vehicle, (2) the matter is REMANDED for entry of a judg-
lessee of the vehicle was not in the car, and ment of acquittal.
(3) the driver’s and passenger’s versions of
their itinerary differed. Brigham, 382 F.3d at
508. It was critical to the holding in Brigham
that one of the car’s occupants had provided
the police with a fictitious ID and therefore,
had not been cleared by the officers’ comput-
erized search when consent was given. See id.
at 510. We noted that cases such as Dortch
and Jones “are about timing and sequence:
After the computer checks came up ‘clean,’
there remained no reasonable suspicion of
wrongdoing by the vehicle’s occupants.” Id.
at 510.
14
Some language in Brigham suggests that it
In Brigham, because the police obtained does not matter in what sequence the police ask for
consent to search defendant’s vehicle while the consent to search the vehicle and conduct the
background check was pending, the detention background ID search. See Brigham, 382 F.3d at
continued to be justified by the facts that gave 511 (“There is . . . no constitutional stopwatch on
rise to its inception, so no Fourth Amendment traffic stops.”); id. (stating that ID searches “need
violation occurred. See id. at 509 (quoting not be pursued to the exclusion of, or in particular
Shabazz, 993 F.2d at 437). A fortiori, because sequence with, other efficient means.”). As quoted
above, however, we put particular emphasis on the
fact that defendants’ ID’s had not yet cleared, and
we explicitly stated that the government had not
13
Jenson’s initial motion to suppress was inart- asked the en banc court to reconsider Dortch,
ful: He listed only the weapon, not the marihuana, Jones, or Santiago. See id. at 510 n.10. The best
as the evidence he sought to exclude from trial. understanding of Brigham is to treat as decisive the
The fruit of the poisonous tree doctrine, however, fact that, in that case, one passenger presented the
requires us to suppress all evidence acquired as the police with a fake license, which (a) heightened
result of an illegal search, and the government does suspicion about the passenger’s activities and
not argue that Jenson has waived his right to (b) necessarily extended the time required to iden-
request suppression of the drugs. tify and clear the vehicle’s occupants.
8
United States v. Jenson
Court: Court of Appeals for the Fifth Circuit
Date filed: 2006-08-23
Citations: 462 F.3d 399
Copy Citations