PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4900
VICTOR EUGENE MASON,
Defendant-Appellant.
Appeal from the United States District Court for
the District of South Carolina, at Columbia.
Cameron McGowan Currie, District Judge.
(3:06-cr-00607-CMC)
Argued: May 13, 2010
Decided: December 8, 2010
Before NIEMEYER, GREGORY, and SHEDD,
Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
majority opinion, in which Judge Shedd joined. Judge Greg-
ory wrote a dissenting opinion.
2 UNITED STATES v. MASON
OPINION
ARGUED: Jeffrey Michael Brandt, ROBINSON &
BRANDT, PSC, Covington, Kentucky, for Appellant. Jeffrey
Mikell Johnson, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee. ON
BRIEF: W. Walter Wilkins, United States Attorney, J. D.
Rowell, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.
OPINION
NIEMEYER, Circuit Judge:
After completing a traffic stop of Victor Mason on Inter-
state 20, between Atlanta and South Carolina, with the issu-
ance of a warning ticket, the Georgia state trooper making the
stop extended it for several minutes, based on the trooper’s
suspicion of criminal activity, to allow a drug-detection dog
to sniff Mason’s vehicle. The dog alerted multiple times to the
presence of a narcotics odor and then jumped into the car
through an open window and sat on the back seat of Mason’s
vehicle, again alerting to the presence of a narcotics odor. A
search of the vehicle thereafter uncovered approximately 10
kilograms of cocaine, for which Mason was convicted of con-
spiracy to violate 21 U.S.C. § 841(a) and sentenced to a man-
datory term of life imprisonment, under 21 U.S.C. § 841(b)
(1)(A).
Mason’s appeal challenges the constitutionality of the
search on the ground that the trooper impermissibly extended
the traffic stop to obtain probable cause to search the vehicle,
as well as the enhancement of his sentence by reliance on two
allegedly invalid previous drug-trafficking convictions. For
the reasons that follow, we affirm.
UNITED STATES v. MASON 3
I
At approximately 11:40 a.m. on August 12, 2005, Georgia
State Patrol Trooper Blake Swicord observed Mason driving
eastbound on Interstate 20 in Morgan County, Georgia, in a
vehicle that had, in Trooper Swicord’s opinion, excessively
tinted windows. Swicord activated his patrol car’s blue lights
to pull Mason over, which automatically activated audio and
video recording equipment, capturing the traffic stop on tape.
Trooper Swicord testified that after he turned on his blue
lights, it took Mason "a while to pull over," which "was not
normal," and that he observed Mason having a conversation
with his passenger, which "raised [his] suspicion." After
Mason pulled over and lowered his window, Trooper Swicord
noticed, as he approached the vehicle, that Mason was ner-
vous and sweating. He also immediately smelled an "extreme
odor" of air freshener coming from the vehicle. Officer Swi-
cord testified at the suppression hearing that the odor was "ab-
solutely abnormal" and strong enough to give an occupant of
the car a headache. Swicord also observed that there was only
one key on the key ring and that there was no luggage in the
interior of the vehicle. He saw on the back seat the newspaper
for that day (recognizing Tiger Woods’ picture) with a label
on it that said "Radisson Hotel." Swicord testified that these
factors led him to believe that Mason and his passenger,
Nathaniel Govan, were on a "turn-around" trip to Atlanta, a
known source city for drugs. Swicord also testified that Inter-
state 20 was common route for drug traffickers.
After Mason provided his driver’s license and the vehicle’s
registration, Trooper Swicord asked him to step out of the
vehicle. When he asked Mason who owned the car, Mason
replied that his daughter did. Swicord then asked Mason his
daughter’s name and the name of his passenger, as well as the
purpose for their journey. Mason told Swicord that he had
driven to Atlanta to see his uncle about getting a deed. Swi-
cord then walked to the passenger-side window and asked
4 UNITED STATES v. MASON
Govan, who had remained in the vehicle, the reason for their
trip. Govan told a different story, stating that they had driven
to see a friend, giving two different names. Swicord’s ques-
tioning of Mason lasted just over two minutes (11:41:20 a.m.
to 11:43:34 a.m.) and his questioning of Govan lasted just
over one minute (11:43:40 a.m. to 11:44:50 a.m.). Because
the two stories conflicted and the newspaper indicated that
Mason and Govan had stayed in a motel, Trooper Swicord
concluded that both were "lying about their itinerary and were
involved in criminal activity."
Trooper Swicord returned to his patrol car, where he
radioed Sergeant Michael Kitchens, a member of the K-9 unit,
requesting that Kitchens come to the scene with a drug-
detection dog. He then exited to test the tint of the windows
of Mason’s vehicle and determined that they were in fact ille-
gally tinted. Swicord returned to the patrol car to write a
warning ticket regarding the illegal tint and to relay to his dis-
patcher Mason’s and Govan’s names, as well as insurance and
registration information. This practice was routinely followed
as a part of a traffic stop to verify information about the vehi-
cle and to check for any outstanding warrants.
Swicord again exited his patrol car and handed the warning
ticket to Mason regarding the illegal tint. This occurred at
11:50:45 a.m., less than 11 minutes after Swicord first acti-
vated his blue lights. At this point, Swicord had finished all
the steps necessary to complete the traffic stop.
Trooper Swicord then asked Mason for consent to search
his vehicle, and Mason refused. Swicord informed Mason that
he believed that there were drugs in the car and that he was
going to have a dog sniff the car to determine whether drugs
were inside. Swicord ordered Govan out of the car, by which
point in time Sergeant Kitchens had arrived. Sergeant Kitch-
ens took his drug-detection dog on a leash around the outside
of Mason’s vehicle, and on the first lap around the vehicle (at
11:55:02 a.m.), the dog alerted at both the passenger-side and
UNITED STATES v. MASON 5
driver-side doors. On a second lap around the vehicle, the dog
jumped into the vehicle through the open driver-side window
and gave a positive indication of the presence of drugs by
pointing her nose next to the speaker in the back seat and sit-
ting down on the seat.
After Sergeant Kitchens coaxed the dog out of the car,
Trooper Swicord searched the vehicle. In the trunk, he found
approximately 10 kilograms of cocaine powder in a black
gym bag.
Following Mason’s indictment for conspiracy to possess
with intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 846, 841(a)(1),* Mason filed a
motion to suppress the evidence found in the vehicle, con-
tending that his Fourth Amendment rights were violated
because (1) Trooper Swicord lacked reasonable suspicion to
detain him beyond completion of the traffic stop and (2) the
dog’s entry into his vehicle was not supported by probable
cause.
The district court denied Mason’s motion to suppress after
a suppression hearing, at which Trooper Swicord and Ser-
geant Kitchens testified. The court found that Swicord had
reasonable suspicion of drug activity when he had finished
processing the warning ticket for the tint violation, justifying
his extending the traffic stop. The court also found that the
dog alerted to drugs on the outside of the car before jumping
into the vehicle on its own, without any command from the
officers. The court ruled that the dog’s positive indication by
entry into the car provided probable cause to justify the
search. The court also ruled that when an officer handling a
dog does not prompt the dog’s entrance into the vehicle, the
dog’s entrance in response to the "plain smell" of narcotics
does not violate the Fourth Amendment.
*While Mason was stopped in Georgia, the indictment charged a con-
spiracy "in the District of South Carolina and elsewhere."
6 UNITED STATES v. MASON
Following Mason’s conviction by a jury, the district court
sentenced him to a mandatory life sentence under 21 U.S.C.
§ 841(b)(1)(A), based on the verdict finding him guilty of
trafficking in five kilograms or more of cocaine and on his
prior felony drug convictions. To satisfy the statutory require-
ment of at least two prior convictions, the government relied
on (1) a conviction in the U.S. District Court for the District
of South Carolina on January 25, 1993, for possession of
cocaine base with intent to distribute it; (2) a conviction in a
Richland County, South Carolina court on February 9, 1988,
for possession of cocaine with intent to distribute it; and (3)
a conviction in an Orangeburg, South Carolina court on July
22, 1988, for possession of cocaine with intent to distribute it.
Mason objected to the use of the two prior state convictions,
contending that he did not have an attorney when he pleaded
guilty to those charges, and he submitted documents purport-
edly demonstrating his lack of representation. At the sentenc-
ing hearing, the district court found that the documentation
did not demonstrate that Mason’s prior convictions were
uncounseled. Rather, the court found that the evidence indi-
cated beyond a reasonable doubt that on both occasions
Mason had the assistance of counsel. Accordingly, the court
imposed the mandatory life sentence under § 841(b)(1)(A).
From the court’s judgment, Mason filed this appeal, chal-
lenging the denial of his suppression motion and the enhance-
ment of his sentence.
II
Mason contends principally that the district court erred in
denying his motion to suppress. He argues (1) that "the police
lacked reasonable articulable suspicion to detain him beyond
the time necessary to issue him a warning for his window
tint," and (2) that even if his continued detention was lawful
due to reasonable suspicion, his Fourth Amendment rights
were violated when the dog entered the car, either because
UNITED STATES v. MASON 7
Sergeant Kitchens opened the door to let the dog in or
because probable cause to justify the entry was lacking.
With respect to Mason’s contention that reasonable suspi-
cion was lacking to detain him after he was issued a warning
ticket for the illegal tint, the government acknowledges that
the traffic stop was completed when Trooper Swicord issued
the warning ticket, at approximately 11:51 a.m., having taken
some 11 minutes after Mason was pulled over. Mason’s con-
tinued detention therefore required Trooper Swicord to have
had a reasonable suspicion of criminal activity. See Florida v.
Royer, 460 U.S. 491, 498 (1983) (plurality opinion); United
States v. Foreman, 369 F.3d 776, 781 (4th Cir. 2004).
Since Terry v. Ohio, 392 U.S. 1 (1968), a "reasonable sus-
picion" of criminal activity has justified an officer’s brief stop
or detention of the suspect sufficient to permit the officer to
allay the suspicion. "Reasonable suspicion" is demonstrated
when an officer "point[s] to specific and articulable facts
which, taken together with rational inferences from those
facts, evince more than an inchoate and unparticularized sus-
picion or hunch of criminal activity." United States v. Branch,
537 F.3d 328, 336 (4th Cir. 2008) (internal quotation marks
and citations omitted). We have recognized that this standard
"is not readily, or even usefully, reduced to a neat set of legal
rules, but, rather, entails common sense, nontechnical concep-
tions that deal with factual and practical considerations of
everyday life." Foreman, 369 F.3d at 781. For that reason, in
assessing reasonable suspicion, courts must "consider the
totality of the circumstances" and "give due weight to com-
mon sense judgments reached by officers in light of their
experience and training." United States v. Perkins, 363 F.3d
317, 321 (4th Cir. 2004); see also Branch, 537 F.3d at 336-37
(noting that courts may "credit the practical experience of
officers who observe on a daily basis what transpires on the
street" (internal quotation marks and citation omitted)).
In this case, we readily conclude that when Trooper Swi-
cord completed the traffic stop, his suspicion that Mason and
8 UNITED STATES v. MASON
Govan were engaged in criminal activity was indeed reason-
able, thereby justifying their additional detention. He articu-
lated facts, when taken as a whole, supported his suspicion,
even though several of the facts, when taken alone, were also
consistent with innocent travel. First, Trooper Swicord stated
that when he turned on his blue lights to pull Mason over,
Mason did not pull over promptly, delaying his move in an
abnormal manner, and that Mason at the same time engaged
in a conversation with the passenger. Even though a conversa-
tion between the driver and his passenger could have been
expected, Swicord suspected that because the conversation
was combined with the abnormal delay, Mason and Govan
could have been deliberating on whether to comply with the
blue lights or to flee. Second, when Swicord approached the
vehicle and Mason rolled down the window, Swicord was
immediately struck by an "extreme" odor of air fresheners
beyond what he had normally experienced from the ordinary
use of such fresheners. See Branch, 537 F.3d at 338 (noting
that the "presence of several air fresheners—‘commonly used
to mask the smell of narcotics’"—is one factor contributing to
reasonable suspicion (quoting Foreman, 369 F.3d at 785)).
Third, Swicord observed that there was only a single key on
Mason’s key ring. He concluded that this fact, combined with
the fact that the two men were coming from the direction of
Atlanta, a city that, according to him, was ranked third in the
nation in terms of drug distribution, on a known drug route,
could indicate that the men might have been on a "turn-
around" trip as drug couriers. See Foreman, 369 F.3d at 785
(noting that the fact that the driver was coming from a known
"source city" is a relevant factor supporting reasonable suspi-
cion, particularly when other factors indicate that the stay in
the source city had been brief). Fourth, Swicord noted that
Mason was sweating and unusually nervous when interacting
with him, and Mason’s nervousness did not subside, as occurs
normally, but became more pronounced as the stop continued.
See Illinois v. Wardlow, 528 U.S. 119, 124 (2000)
("[N]ervous, evasive behavior is a pertinent factor in deter-
UNITED STATES v. MASON 9
mining reasonable suspicion"). Fifth, and finally, when
Mason and Govan were asked separately about the purpose of
their travel, the two men gave conflicting answers, indicating
that they were covering up the place where they had stayed
and the real purpose of their travel. In addition, a current
newspaper on the back seat indicated to Swicord that Mason
and Gorman had actually stayed at a motel, further contradict-
ing their stories.
We recognize that several of these facts could hardly have
distinguished suspicious activity from innocent travel. But
when all the articulated facts are taken as a whole, especially
when they include the fact of Mason and Govan’s conflicting
stories about the place where they stayed and the purpose of
their travel, sufficient facts existed to have given an experi-
enced officer a reasonable suspicion that criminal activity was
afoot.
Mason’s argument focuses on the factors individually,
claiming that each was subject to an innocent explanation and
therefore could not have served to justify his continued deten-
tion. He explains, for instance, that he had only a single key
because he had borrowed the car from his daughter and that
he was sweating because it was a hot day. But just as one cor-
ner of a picture might not reveal the picture’s subject or
nature, each component that contributes to reasonable suspi-
cion might not alone give rise to reasonable suspicion. Indeed,
it is often noted that the existence of reasonable suspicion is
a case-specific inquiry, based on the totality of the circum-
stances. Thus, each factor contributing to a reasonable suspi-
cion might be "consistent with innocent travel" but "when
taken together, [might] give rise to reasonable suspicion."
Foreman, 369 F.3d at 781 (emphasis omitted) (citing United
States v. Sokolow, 490 U.S. 1, 9 (1989)); see also Branch, 537
F.3d at 336 ("[C]ontext matters: actions that may appear
innocuous at a certain time or in a certain place may very well
serve as a harbinger of criminal activity under different cir-
cumstances"). Such is precisely the case here, with all of the
10 UNITED STATES v. MASON
factors coming together at a single place and point in time to
create a suspicion that each individual factor might not have
created.
At bottom, we conclude that the objective facts facing
Trooper Swicord created a reasonable suspicion of criminal
activity and that he was therefore justified, under Terry and
its progeny, in extending the stop for the brief period neces-
sary to allay that suspicion.
Mason argues additionally that suspicion is not probable
cause and therefore that Sergeant Kitchens’ dog was not con-
stitutionally justified in "enter[ing] the [vehicle] before alert-
ing to the presence of drugs [when] no warrant or exception
to the warrant requirement existed." He also disputes the dis-
trict court’s factual finding that the dog entered the vehicle of
its own accord. Instead, Mason maintains that the dog’s han-
dler, Sergeant Kitchens, facilitated the dog’s entry by slightly
opening the door or by holding the dog on a loose leash, "al-
low[ing] the [dog] to go where the officers themselves [could]
not go and conduct what would otherwise be an unlawful
search."
Mason’s argument, however, fails to account for the dog’s
conduct before it entered the vehicle. The district court found
as fact that the dog alerted several times on the exterior of the
vehicle before jumping through the window into the back
seat. This finding was supported by testimony at the suppres-
sion hearing as well as by the video tape, where the dog can
be seen placing her paws on the passenger-side window and
moving her head rapidly, consistent with Sergeant Kitchens’
description of an alert. These alerts indicated that the dog per-
ceived a narcotics odor while outside the car, thereby creating
probable cause to believe that narcotics were present even
prior to the dog’s entry into the vehicle. See Branch, 537 F.3d
at 340 n.2 (noting that a "positive alert" from a drug-detection
dog provides probable cause to search the vehicle (citing
UNITED STATES v. MASON 11
United States v. Eura, 440 F.3d 625, 630 (4th Cir. 2006), and
United States v. Jeffus, 22 F.3d 554, 557 (4th Cir. 1994)).
While we therefore need not address Mason’s argument
that Sergeant Kitchens opened the door or prompted the dog
to enter Mason’s car, that factual challenge would also fail.
The district court found as fact that the dog jumped in the
open driver-side window of her own accord and was not com-
manded by her handler to do so. This finding was supported
by testimony at the suppression hearing, as well as by the vid-
eotape, and therefore was not clearly erroneous.
III
While Mason’s brief on appeal challenges the reasonable-
ness of Mason’s detention only after Trooper Swicord issued
the warning ticket, when Mason’s counsel and the govern-
ment were questioned by the court at oral argument about
whether Trooper Swicord’s questioning of Mason and Govan
during the traffic stop about matters unrelated to the reason
for the traffic stop amounted to an unconstitutional delay or
extension of the traffic stop, Mason’s counsel argued that it
did. Because of how and when the issue arose, there might be
good reason to doubt whether Mason preserved the issue for
appeal, but we need not decide that question because, we con-
clude, the argument has no merit.
The facts relevant to this argument are not disputed. Once
Mason stepped to the rear of the vehicle during the course of
the traffic stop, Trooper Swicord questioned him for less than
two and one-half minutes (11:41:20 a.m. to 11:43:34 a.m.),
asking him relevant questions as to who owned the car and,
when Mason replied that his daughter owned it, what his
daughter’s name was. Swicord also asked Mason about where
he had been, his destination, and the purpose of his trip. After
concluding this questioning of Mason, Trooper Swicord
walked over to Govan and questioned him for just over one
minute (11:43:40 a.m. to 11:44:50 a.m.), during which time
12 UNITED STATES v. MASON
Govan gave a contradicting account of the purpose of their
trip. Trooper Swicord then returned to his patrol car, radioed
in information in accordance with traffic-stop protocol, and
wrote out the warning ticket. From the time that Trooper Swi-
cord began questioning Mason until the time that he finished
questioning Govan, a total of three and one-half minutes had
elapsed, and most of that time was devoted to questions
directly relevant to conducting the traffic stop. Perhaps only
one to one and one-half minutes involved questioning on mat-
ters unrelated to the traffic stop.
There is no support in Fourth Amendment jurisprudence for
the notion that questioning unrelated to the purpose of a traf-
fic stop requires reasonable suspicion, provided that the ques-
tioning occurs within the timeframe reasonably necessary to
effectuate the traffic stop. An officer’s questions or actions
during the course of a traffic stop or any other legal detention
need not be solely and exclusively focused on the purpose of
that detention. In Arizona v. Johnson, 129 S. Ct. 781, 788
(2009), a unanimous Supreme Court noted just that:
A lawful roadside stop begins when a vehicle is
pulled over for investigation of a traffic violation.
The temporary seizure of driver and passengers ordi-
narily continues, and remains reasonable, for the
duration of the stop. . . . An officer’s inquiries into
matters unrelated to the justification for the traffic
stop, this Court has made plain, do not convert the
encounter into something other than a lawful sei-
zure, so long as those inquiries do not measurably
extend the duration of the stop.
(Emphasis added) (citing Muehler v. Mena, 544 U.S. 93, 100-
01 (2005)). Similarly in Mena, officers questioned a woman
about her immigration status while she was handcuffed for
safety purposes during the execution of a search warrant. She
claimed that the questioning was not necessary for the offi-
cers’ safety and was therefore unconstitutional. Once again, a
UNITED STATES v. MASON 13
unanimous Supreme Court agreed that the questioning did not
violate the Fourth Amendment even though it was wholly
unrelated to the justification for her detention. See Mena, 544
U.S. at 100-01; id. at 105 (Stevens, J., concurring in the judg-
ment).
Thus, when an individual is lawfully stopped for a sus-
pected traffic violation, the officer may briefly ask questions
unrelated to the stop. For instance, questions about the
weather or simply "How ‘bout them Georgia Bulldogs?" do
not implicate the Fourth Amendment, provided that the unre-
lated questioning does not extend the encounter beyond the
period reasonably necessary to effectuate the purposes of the
lawful detention. An officer’s incidental questions about a
motorist’s destination and purpose of travel are no different.
It has never been held that brief, incidental questioning about
matters unrelated to the traffic violation violates the Constitu-
tion. See, e.g., United States v. Olivera-Mendez, 484 F.3d 505,
510 (8th Cir. 2007) ("[A]n officer does not violate the Fourth
Amendment by asking a few questions about matters unre-
lated to the traffic violation, even if this conversation briefly
extends the length of the detention" (citing United States v.
Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006);
United States v. Burton, 334 F.3d 514, 518-19 (6th Cir. 2003);
United States v. Childs, 277 F.3d 947, 951-54 (7th Cir. 2002)
(en banc))); see also United States v. Harrison, 606 F.3d 42,
44-45 (2d Cir. 2010) (finding no Fourth Amendment violation
due to unrelated, separate lines of questioning of a driver and
a passenger regarding the purposes of their journey, point of
origin, and destination); United States v. Everett, 601 F.3d
484, 492-94 (6th Cir. 2010) (relying on Mena and Johnson in
holding that brief questioning unrelated to the purpose of a
traffic stop does not violate the Fourth Amendment).
The fact that Trooper Swicord directed one minute of his
questioning to the passenger does not alter the calculus. See
United States v. Soriano-Jarquin, 492 F.3d 495, 499-501 (4th
Cir. 2007). In Soriano-Jarquin, we held that there was no
14 UNITED STATES v. MASON
Fourth Amendment violation when an officer asked a passen-
ger for identification, which ultimately led to reasonable sus-
picion of immigration violations, because the request did not
prolong the stop, which was for a broken headlight. We noted,
"We believe a simple request for identification from passen-
gers falls within the purview of a lawful traffic stop and does
not constitute a separate Fourth Amendment event. Assuming
a lawful stop, an officer is entitled to some chance to gain his
bearings and to acquire a fair understanding of the surround-
ing scene." Id. at 500.
Of course, a traffic stop may not be extended beyond the
time reasonably necessary to effectuate the stop, absent rea-
sonable suspicion justifying further detention as a Terry stop.
See Illinois v. Caballes, 543 U.S. 405, 407-08 (2005). In this
case, Trooper Swicord went about his business promptly and
with efficiency. He completed the entire traffic stop—
including the brief questioning, the examination of papers, the
calling of his dispatcher to relate information, the testing of
the tinted windows, and the issuance of a warning ticket—
within a period of less than 11 minutes. The one to two of the
11 minutes devoted to questioning on matters not directly
related to the traffic stop constituted only a slight delay that
raises no Fourth Amendment concern. See United States v.
Farrior, 535 F.3d 210, 220 (4th Cir. 2008) (holding that de
minimis delays in conducting a traffic stop do not violate the
Fourth Amendment); United States v. Alexander, 448 F.3d
1014, 1017 (8th Cir. 2006) ("‘[A] two minute delay . . . is a
de minimis intrusion on the driver’s personal liberty that does
not violate the Fourth Amendment’" (quoting United States v.
Martin, 411 F.3d 998, 1002 (8th Cir. 2005)); United States v.
Purcell, 236 F.3d 1274, 1279 (11th Cir. 2001) (three-minute
delay was de minimis and did not violate the Fourth Amend-
ment). And, it cannot be said that the overall length of the 11-
minute traffic stop involved an unconstitutional delay. Indeed,
on numerous occasions, we have approved longer stops
against challenges of unreasonable delay, as have other
courts. See, e.g., United States v. Jeffus, 22 F.3d 554, 557 (4th
UNITED STATES v. MASON 15
Cir. 1994) (approving 15-minute traffic stop); United States v.
Mincey, No. 07-4563, 2008 WL 5063872, at *6 (4th Cir. Nov.
24, 2008) (35 minutes); United States v. Jones, No. 06-4889,
2008 WL 3863408, at *5-6 (4th Cir. Aug. 20, 2008) (20 min-
utes); United States v. Ramirez, Nos. 01-4147, 01-4161, 2002
WL 27313, at *2 (4th Cir. Jan. 10, 2002) (15 minutes); Pur-
cell, 236 F.3d at 1279 (14 minutes); Olivera-Mendez, 484
F.3d at 508, 510 (15 minutes).
In sum, the questions posed by Trooper Swicord during the
traffic stop that were unrelated to the basis for the stop did
nothing to diminish the stop’s constitutionality, given that
they caused only a brief delay.
IV
Mason also contends that two separate state drug felony
convictions from 1988 were improperly used to enhance his
sentence under 21 U.S.C. § 841(b)(1)(A) because he was not
represented by counsel in those cases. In support of this con-
tention, he submitted documents from those cases purportedly
demonstrating his lack of legal representation, and he under-
took to testify on this point at the sentencing hearing. In his
testimony, Mason stated that he had been shot in the head in
2001, some 13 years after those convictions, leaving him with
little or no memory of the events prior to 2001, including
events at the time of his state convictions. He stated that he
had no memory of being represented by an attorney for either
state charge or being advised of his right to counsel. He also
testified that he had no recollection of his prior federal con-
viction in 1993 or of having served 70 months in prison for
that conviction.
The district court concluded that Mason did not carry his
burden of demonstrating by a preponderance of the evidence
that his prior state convictions were uncounseled. See 21
U.S.C. § 851(c)(2). None of the documents he offered sup-
ported his contention, and his testimony indicated that he was
16 UNITED STATES v. MASON
unable to recall events before 2001. Indeed, based on the evi-
dence, the district court concluded that the record showed
affirmatively that Mason was in fact represented during both
of those convictions.
Regarding the first, a February 1988 conviction for drug
trafficking in Richland County, South Carolina, the charging
document submitted by Mason had "Def Screen" written on
it, which indicated to the court that Mason had been repre-
sented by local defense attorney Jerry Screen. A ledger from
Screen’s office confirmed that in August 1987, Mason
retained Screen to represent him on a charge for cocaine dis-
tribution, and this date coincided with the date of Mason’s
August 1987 arrest for the conduct underlying the February
1988 conviction. Furthermore, this same conviction was used
to calculate Mason’s sentence for his federal conviction in
1993, without objection from Mason.
Regarding the second state conviction, which occurred in
Orangeburg, South Carolina, in July 1988, a form submitted
by Mason indicated that he was represented by attorney
Charles H. Williams. The indictment reflected this fact as
well. And again, consistent with this evidence, the 1993 pre-
sentence report for Mason’s previous federal charge indicated
that Mason was represented during this state conviction, again
without objection by Mason.
In short, Mason has failed to carry his burden of demon-
strating that the prior convictions were uncounseled.
Moreover, we note that Mason’s challenge to the validity
of his state convictions was in any event likely barred by the
statute of limitations in 21 U.S.C. § 851(e), which provides,
"No person who stands convicted of an offense under this part
may challenge the validity of any prior conviction alleged
under this section which occurred more than five years before
the date of the information alleging such prior conviction."
The two state convictions that Mason challenges occurred
UNITED STATES v. MASON 17
more than five years before the government submitted its
§ 851 information in this case.
V
Finally, Mason contends that the fact of his prior convic-
tions needed to be proved to a jury beyond a reasonable
doubt. Because that fact was not found by a jury beyond a
reasonable doubt, he asserts, the use of the prior convictions
to enhance his sentence violated his Sixth Amendment rights.
Mason candidly acknowledges that this argument is presented
for purposes of preserving the issue for the Supreme Court
and that, under the present jurisprudence of Almendarez-
Torres v. United States, 523 U.S. 224 (1998), such an argu-
ment cannot be sustained. We agree. Moreover, we note that
since Almendarez-Torres, the Supreme Court has repeatedly
affirmed the exception, as have we. See Shepard v. United
States, 544 U.S. 13, 25-26 & n.5 (2005); Apprendi v. New
Jersey, 530 U.S. 466, 488-90 (2000); United States v. Cheek,
415 F.3d 349, 354 (4th Cir. 2005).
***
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
GREGORY, Circuit Judge, dissenting:
In my view, Trooper Blake Swicord violated Victor
Mason’s Fourth Amendment rights by extending the length
and scope of Mason’s detention beyond that which was neces-
sary for a routine traffic violation, without reasonable suspi-
cion to believe that any further illegal activity was afoot.
Therefore, I respectfully dissent.1
1Because I would hold that Trooper Swicord violated Mason’s Fourth
Amendment rights by unreasonably delaying his detention, and that any
18 UNITED STATES v. MASON
I.
Regrettably, I must begin by supplementing and clarifying
some key facts about Trooper Swicord’s detention of Mason
that are omitted by the majority.2
At approximately 11:40 AM, Trooper Swicord signaled for
Mason to pull over based on his suspicion that the tint on
Mason’s windows was too dark, in violation of Georgia law.
According to Swicord, Mason did not begin to pull over dur-
ing these one-to-two seconds, which immediately aroused his
suspicion. Though it is clear from the video of the stop that
Mason was in the process of pulling over as soon as the tape
began, Swicord testified that there was a one-to-two second
delay between the time he activated his blue light and the time
the dashboard camera began recording. During this time, Swi-
cord also noticed that Mason had turned to his passenger,
Govan, which the officer also deemed suspicious. When Swi-
cord approached the car and began talking to Mason, he
noticed a strong smell of air freshener, noticed that the key in
the ignition was on a keychain with no other keys, and that
there was no luggage in the backseat.
At the suppression hearing, Trooper Swicord testified on
cross-examination that based on his "experience," he was
suspicious that criminal activity was afoot as soon as he
pulled over Mason’s car. J.A. 95. He agreed with defense
evidence seized as a result of the delay should have been excluded at his
trial, I do not consider whether Swicord had probable cause to search
Mason’s trunk at the stop’s conclusion. But to the extent reasons given by
Swicord were constitutionally insufficient or inappropriate to justify rea-
sonable suspicion to extend Mason’s stop, they would likewise not justify
probable cause to search Mason’s car.
2
These facts are gathered from both Trooper Swicord’s testimony at the
suppression hearing and the video of the stop taken by his dashboard cam-
era, which was submitted by the parties as part of the Joint Appendix.
UNITED STATES v. MASON 19
counsel’s assertion that his suspicion was based on "sort of
gut instinct." Id.
After an initial discussion with Mason about why he was
pulled over, Trooper Swicord ordered Mason out of the vehi-
cle. Standing by the side of the highway, Swicord proceeded
to ask Mason a series of questions about where Mason was
coming from, where he was going, and the purpose of his
travel. During this time, the officer testified that Mason was
[n]ot making eye contact, shifting his weight. It’s
hard to explain in the sense that if you’ve ever
looked into the eyes of a person that’s looking at the
rest of their life in prison they have a certain look
about them. And fear is hard to explain in that sense.
But when you are looking at a person that is fearful
it’s just a different look that every officer that I know
understands.
J.A. 99. Trooper Swicord’s testimony that Mason was "not
making eye contact" is contradicted by video of the stop,
which shows Mason looking at the officer throughout the
questioning, while the officer looks away.
After completing his questioning of Mason, Trooper Swi-
cord then repeated the same questions to Govan. This encoun-
ter lasted a bit more than one minute. When Govan gave a
conflicting account of the purpose of the trip, the officer
returned to his patrol car and radioed for a K-9 unit to come
to the scene. He told the dispatcher, "When you get through
with that [inaudible], come on over to me right here, I got
something right here, these guys are spooky spooky."
On direct examination, the attorney for the government
asked Trooper Swicord why he called for K-9 backup. He
replied, somewhat bizarrely:
I have been in a lot of violent confrontations coming
out of Atlanta. Mr. Mason and Mr. Govan are older
20 UNITED STATES v. MASON
black males that are not in good shape, I didn’t feel
like they would challenge me physically. I felt like
if they had a gun we were probably fixing to shoot
it out.
J.A. 89. When then asked whether this was based on his
observations of Mason and Govan, the officer responded,
"that’s based on experience." Id.
Once he requested backup, Trooper Swicord then returned
to Mason’s vehicle to test the window tint. After doing so, he
went back to his patrol car and again radioed dispatch. This
time, he asked the dispatcher to check whether there were any
outstanding warrants for Mason or Govan’s arrest. Curiously,
the officer told the dispatcher to hold the information, rather
than run the check immediately.
When the K-9 unit arrived, Trooper Swicord testified that
the drug-sniffing dog alerted to the presence of drugs in
Mason’s trunk. The officer then searched the trunk and found
10 kilograms of cocaine. Mason and Govan were then
arrested. The detention, as measured between the time
Trooper Swicord stopped Mason’s car and the time he
arrested Mason and Govan, lasted 18 minutes.
Prior to trial, Mason moved to suppress the drugs found in
his car on the grounds that Trooper Swicord lacked reason-
able suspicion to extend the stop beyond that which was nec-
essary to cite him for a window-tint violation and on the
grounds that he lacked probable cause to search the trunk. The
district court denied Mason’s motion on both grounds. Mason
then proceeded to trial where he was convicted of possession
with intent to distribute five kilograms or more of cocaine and
subsequently sentenced to life imprisonment.
II.
In light of these facts, there can be no doubt that Trooper
Swicord extended Mason’s detention beyond what was neces-
UNITED STATES v. MASON 21
sary to issue him a warning for a window-tint violation. When
Swicord ordered Mason out of the car and questioned him
about matters wholly unrelated to the window tint and then
repeated the same questioning to Govan, the prolonged deten-
tion was not justified by probable cause to believe that the
motorists had committed a traffic infraction.
Therefore, in order for the detention to comply with the
Fourth Amendment, Swicord either had to have reasonable
suspicion to believe that criminal activity was afoot when he
prolonged his investigation, United States v. Branch, 537 F.3d
328, 336 (4th Cir. 2008), or his questioning must not have
"measurably extend[ed] the duration of the stop," Arizona v.
Johnson, 129 S. Ct. 781, 788 (2009). Because Swicord lacked
reasonable suspicion that criminal activity was afoot when he
extended the stop, and because that extension was "mea-
surabl[e]" when viewed under the totality of the circum-
stances, Swicord violated Mason’s Fourth Amendment rights.
A.
When conducting a routine traffic stop, a police officer may
not detain the driver or passenger beyond the point necessary
to effect that stop without reasonable suspicion to believe that
either is engaged in additional criminal activity. Branch, 537
F.3d at 336; see Illinois v. Caballes, 543 U.S. 405, 407 (2005)
("[A] seizure that is lawful at its inception can violate the
Fourth Amendment if its manner of execution unreasonably
infringes interests protected by the Constitution."). Reason-
able suspicion, though incapable of a precise definition, must
consist of "specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant"
further governmental intrusion upon an individual’s liberty.
Terry v. Ohio, 392 U.S. 1, 21 (1968). These specific, articul-
able facts will not support reasonable suspicion, however, if
they "describe a very large category of presumably innocent
travelers." Reid v. Georgia, 448 U.S. 438, 441 (1980) (per
curiam). Nor can an officer’s suspicion be based on merely
22 UNITED STATES v. MASON
"‘inchoate and unparticularized suspicion or hunch.’" Branch,
537 F.3d at 336 (quoting Illinois v. Wardlow, 528 U.S. 119,
124 (2000)).
After reviewing Trooper Swicord’s testimony and video of
the stop, it is abundantly clear that he lacked reasonable suspi-
cion at the point he ordered Mason out of the car and that he
lacked the requisite suspicion until, at very least, he com-
pleted his conversation with Govan.3 Swicord repeatedly
stated in his testimony that he believed Mason possessed
drugs based on his "experience" and that he knew as soon as
he pulled Mason over that he was transporting drugs simply
based on "gut instinct." He stated that he knew Mason was
carrying drugs just by "look[ing] into [his] eyes," even though
he could not provide any objective facts to justify this suspi-
cion. On the video, Swicord gave no reason for requesting
drug-sniffing dogs beyond stating that "these guys are spooky
spooky." When asked by the government why he called for K-
9 backup, Swicord gave a soliloquy about the propensity for
violence of "older black males that are not in good shape"
coming from Atlanta. And only after twice being asked by the
government whether this was based on his actual observations
of Mason and Govan did he say that it was, in addition to his
"experience." In short, Trooper Swicord was playing a
"hunch" based on no more than "inchoate and unparticular-
ized suspicion" when he extended the stop by questioning
Mason and Govan about matters unrelated to the window-tint
violation. Branch, 537 F.3d at 336 (quoting Wardlow, 528
U.S. at 124).
Likewise, those objective factors listed by the government
are classically impermissible, post-hoc rationalizations that
cannot justify reasonable suspicion because they fail to
exclude "a very large category of presumably innocent travel-
3
At that point, as the majority’s opinion in Part II notes, Trooper Swi-
cord had conflicting statements from Mason and Govan about the nature
and purpose of their trip.
UNITED STATES v. MASON 23
ers." Reid, 448 U.S. at 441. Swicord testified that prior to his
questioning Mason and Govan he was suspicious because of
(1) Mason’s one-to-two second delay in pulling over; (2)
Mason’s looking in the direction of his passenger; (3) the fact
that there was a strong smell of air freshener in the car; (4) the
fact that Mason was driving away from Atlanta; (5) the fact
that there was only one key in the ignition; and (6) the fact
that there was no visible luggage in the backseat. Yet Swicord
failed to articulate why any of these factors would be associ-
ated with criminal activity. In other words, Swicord provided
"articulable" facts, yet provided no basis for why these factors
were "suspicious" individually or in the aggregate. Cf. Terry,
392 U.S. at 21.
Regarding the one key in the ignition, for example, Trooper
Swicord stated that it suggested to him that the car was bor-
rowed.4 Because it was borrowed, he stated, there was no
house key. "And the reason there’s no house keys," he stated,
"is because there’s criminal activity being pursued and no one
wants to be linked to the car or criminal activity." J.A. 84.
Swicord gave no further basis, either in logic or his profes-
sional experience, for the supposed link between lack of
house keys and criminal activity.
Likewise, Trooper Swicord stated that as he approached the
vehicle he noticed that there was no luggage in the backseat,
which he testified immediately made him suspicious that
Mason was on a turn-around trip from Atlanta to buy and sell
drugs.5 Yet there was no reason why Mason and Govan could
not have placed their luggage in the car’s trunk.
More problematically, though, this statement is quite obvi-
4
Mason had indeed borrowed the car from his daughter, a fact Trooper
Swicord confirmed during the stop.
5
I leave it to others to surmise how Trooper Swicord could determine
whether or not there was luggage in the backseat of Mason’s car as he
approached the overly tinted windows.
24 UNITED STATES v. MASON
ously post-hoc and not based on Swicord’s real-time observa-
tions. At the time he approached the car, Swicord had no idea
of where Mason and Govan were coming from or any reason
to suspect that their travels reasonably required luggage — he
only learned about the nature of their trip after questioning
them separately. Far from providing reasonable suspicion at
the time of the questioning, then, the factors listed by Swicord
can only be reasonably viewed as attempts to justify his
unsupported, "gut instinct" after-the-fact. "[A]n objective
assessment of an officer’s actions in light of the facts and cir-
cumstances then known to him," simply cannot support Swi-
cord and the government’s insistence, after-the-fact, that he
had a reasonable basis for suspicion as soon as he stopped
Mason. See United States v. Rooks, 596 F.3d 204, 210 (4th
Cir. 2010) (quoting Scott v. United States, 436 U.S. 128, 137
(1978)).
It is true, of course, that our review of Trooper Swicord’s
suspicion must be "holistic," Branch, 537 F.3d at 337, and
that in certain circumstances "wholly lawful conduct might
justify the suspicion that criminal activity was afoot," Reid,
448 U.S. at 441.6 Not so here. Even when viewed holistically,
the facts listed at varying times by Trooper Swicord and
argued by the government simply do not exclude enough
innocent travelers to justify reasonable suspicion. See id. At
oral argument, the government conceded that every factor that
it used to justify reasonable suspicion could apply to either
every car on I-20 or at least millions of them. If police offi-
6
The facts in Reid are remarkably similar to those here. In Reid, an
agent for the Drug Enforcement Administration stopped two passengers in
an Atlanta airport who had arrived on an early morning flight from Fort
Lauderdale. 448 U.S. at 439. The agent was suspicious because the two
men had stayed in Fort Lauderdale for only one night, appeared nervous,
were looking at each other strangely as they got off the plane, were carry-
ing shoulder bags, and arrived at a time when they could reasonably
believe there would not be law enforcement present. Id. The Supreme
Court held that these factors did not support a finding of reasonable suspi-
cion. Id. at 441.
UNITED STATES v. MASON 25
cers could justify a full investigative detention of every car
that took one second to pull over, in which the driver looked
in the passenger’s direction, had air freshener, had no lug-
gage, and was driving away from Atlanta (and presumably to
or away from any "source" city in the country), then courts
would in essence constitutionally bless "virtually random sei-
zures" on every highway on the east coast. See id. Searches
and seizures based on so "slender a reed" cannot possibly be
reasonable in any meaningful sense. See id. Consequently,
Trooper Swicord did not have reasonable suspicion to extend
the stop when he ordered Mason out of the car.7
B.
The majority does not argue that Trooper Swicord had rea-
sonable suspicion to extend the stop to include unrelated
questioning of Mason and Govan at the time Swicord ordered
Mason out of the car. Instead, the majority argues that Swi-
cord did not "measurably extend the duration of the stop,"
Johnson, 129 S. Ct. at 788, because the delay was de minimis,
or as he calls it, "only a slight delay." In other words, the
majority interprets the prohibition against "measurably"
7
The following example illustrates the absurdity in finding reasonable
suspicion based on the factors listed by the government:
While running errands with her child, a mother is pulled over on I-20,
just north of the Savannah River. It takes her one second to pull over to
the right-side emergency lane and while doing so, she looks to the right,
which also happens to be where her child is sitting. She has cherry-
flavored air freshener hanging from her rearview mirror. She has one key
in the ignition because her key, like many keys on modern vehicles that
also electronically lock and unlock car doors, is too big to fit on standard-
issue key chains. And she has no luggage in the backseat because, like
most people travelling to the grocery store, she does not plan to spend the
night.
A police officer’s decision to then detain the woman and her child to
investigate them for drug trafficking would be patently unreasonable. And
the reasonable suspicion analysis does not change with the gender, race,
or ethnicity of the motorists.
26 UNITED STATES v. MASON
extending a traffic stop to allow, as a bright-line rule, any
extension of at least three-and-a-half minutes.8 Under well-
established Fourth Amendment jurisprudence, this is incor-
rect.
"‘The touchstone of the Fourth Amendment is reasonable-
ness.’" Ohio v. Robinette, 519 U.S. 33, 39 (1996) (quoting
Florida v. Jimeno, 500 U.S. 248, 250 (1991)). In conducting
the reasonableness analysis, we are instructed to look at the
"totality of the circumstances" and "eschew[ ] bright-line
rules" in favor of a "fact-specific" analysis. Id. Therefore, in
analyzing whether an officer impermissibly extended the
duration of a traffic stop without reasonable suspicion, "we
must conduct a fact-bound, context-dependent inquiry in each
case" that looks to whether the prolonged period was reason-
able in light of the stop as a whole. United States v. Everett,
601 F.3d 484, 493 (6th Cir. 2010).
In Everett, a case upon which both the government and the
majority rely, the Sixth Circuit rejected the argument that any
prolongation period could be deemed categorically de
minimis. Id. Instead, in a thoughtful and extensively reasoned
opinion by Judge Boggs, the court focused its inquiry on
whether the challenged delay bespoke a lack of diligence on
the part of the investigating officer in making the traffic stop.
Id. at 494. Specifically, the court articulated a set of factors
to consider, including: (1) the nature of any extraneous ques-
tions asked by the investigating officer; (2) whether or not the
additional intrusion was conducted out of concern for officer
safety; and (3) whether the "‘questions unrelated to the traffic
violation constituted the bulk of the interaction between the
trooper and the motorist’" or whether the officer could be
deemed to have "definitively abandoned the prosecution of
the traffic stop and embarked on another sustained course of
8
The majority’s repeated insistence that the delay was only "one-to-two
minutes" is simply inaccurate.
UNITED STATES v. MASON 27
investigation." Id. at 495 (quoting United States v. Peralez,
526 F.3d 1115, 1121 (8th Cir. 2008)).
Here, the extraneous questioning was extensive in scope.
Trooper Swicord, after ordering Mason out of his vehicle,
proceeded to ask him roughly a dozen questions about the
nature and purpose of his travel, wholly unrelated to his win-
dows’ tint. Swicord repeated several of the questions through-
out the exchange, trying to induce Mason into contradicting
himself in order to gain reasonable suspicion to further extend
the stop.9 Swicord then similarly engaged Govan, asking him
where he stayed, whom he was visiting, and even what time
he woke up in the morning. The only possible justification for
the repeated and extensive questions to both passengers was
to create conflicts in their stories so that Swicord could justify
continuing the stop and expanding his investigation. Swicord
even admitted as much when he stated that he asked "clarify-
ing questions" of Mason and Govan because subjectively, he
"was 100 percent sure they were drug trafficking." J.A. 108.
Though it may be true that isolated questions about a sus-
pect’s itinerary may be permissible to allow the officer to get
a better sense of the circumstances he confronts, Everett, 601
F.3d at 494, Swicord’s questions to Mason and Govan were
a fishing expedition, designed solely to investigate possible
criminal activity.
Likewise, none of Trooper Swicord’s questioning was at all
related to officer safety. He neither asked Mason or Govan
whether they were carrying weapons, nor did he ever pat them
down while speaking with them. Indeed, he even let Govan
stay in the car while he spoke with Mason, demonstrating that
he was not afraid that there were weapons in the car with
which either suspect could harm him or other officers.10
9
At no point during the exchange did Mason, in fact, contradict himself.
10
Given Trooper Swicord’s clear lack of concern for his safety when
talking to Mason and Govan, his subsequent testimony that he requested
K-9 backup because he feared the motorists were armed and violent, being
as they were older black men leaving Atlanta, J.A. 89, is all the more
bizarre.
28 UNITED STATES v. MASON
Finally, the unrelated questioning was so extensive as to
demonstrate that Trooper Swicord’s primary purpose in
effecting the stop was not to write a warning for a window-
tint violation but instead to investigate other criminal activity.
Eleven minutes elapsed between the time Swicord signaled
for Mason to pull over and the time he wrote him a warning
for the traffic violation. But of those eleven minutes, video of
the stop reveals that Trooper Swicord spent no more than two
minutes actually investigating and writing a warning for the
window-tint violation. Indeed, that amount of time is signifi-
cantly less if one considers only the period of time between
Swicord’s signaling for Mason to pull over and the point at
which he finished questioning Govan; the point at which the
majority agrees (and I assume for purposes of argument) that
Swicord had reasonable suspicion to extend the stop. Swicord,
therefore, spent "the bulk of the interaction" with the motor-
ists investigating a crime for which he had no reasonable sus-
picion, demonstrating a clear lack of diligence in resolving the
traffic violation. Id. at 495.11
Under the totality of the circumstances, then, Swicord vio-
lated Mason’s Fourth Amendment rights by unreasonably
delaying Mason’s detention to question him about unrelated
matters. Thus, the district court erred in denying Mason’s
motion to suppress the drugs found as the result of the unrea-
sonable delay. Mason’s conviction should therefore be
reversed.
III.
Victor Mason was denied justice when a police officer tar-
geted him for extended detention based on a hunch and his
gut instinct regarding people travelling on I-20. That the offi-
11
Perhaps no single fact demonstrates Trooper Swicord’s lack of dili-
gence more than his request that the dispatcher hold any information
regarding outstanding warrants for Mason and Govan until he had further
opportunity to investigate their behavior.
UNITED STATES v. MASON 29
cers ultimately seized several kilograms of cocaine neither
vindicates violating the Fourth Amendment nor lessens our
duty to adjudicate justly the rights enshrined therein.