United States v. Charles Williams, Jr. , 808 F.3d 238 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4049
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHARLES WILLIAMS, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge; Thomas D. Schroeder, District Judge.
(1:12-cr-00264-WO-1)
Argued: September 16, 2015 Decided: December 14, 2015
Before KING, KEENAN, and FLOYD, Circuit Judges.
Vacated and remanded by published opinion. Judge King wrote the
opinion, in which Judge Keenan and Judge Floyd joined.
ARGUED: Amber Rae Will, COLLEGE OF WILLIAM & MARY, Williamsburg,
Virginia, for Appellant. Terry Michael Meinecke, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee. ON BRIEF: Gregory Davis, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina; Patricia E. Roberts,
Brittany Sadler, Andrew L. Steinberg, WILLIAM & MARY SCHOOL OF
LAW, Williamsburg, Virginia; Tillman J. Breckenridge, Thomas W.
Ports, Jr., REED SMITH LLP, Washington, D.C., for Appellant.
Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
KING, Circuit Judge:
Charles Williams, Jr., was convicted and sentenced in the
Middle District of North Carolina for possessing with intent to
distribute crack cocaine. In this appeal, Williams pursues a
single contention — that the district court erred by denying his
motion to suppress evidence seized during a traffic stop on
Interstate 85. During that stop, a deputy sheriff issued
Williams a written warning, and Williams thereafter refused to
consent to a vehicle search. The police then conducted a dog
sniff of the car and seized crack cocaine from it. Williams
maintains that extending the traffic stop for the dog sniff
contravened the Fourth Amendment and that the crack cocaine
should have been suppressed. As explained below, we vacate and
remand.
I.
A.
While traveling by rental car through central North
Carolina in the early hours of February 13, 2012, Williams and
his girlfriend Elisabeth MacMullen were stopped for speeding by
a deputy sheriff. After the deputy issued Williams a written
warning and returned his documentation, another deputy conducted
a dog sniff of the rental vehicle. The dog alerted, and the
ensuing search revealed crack cocaine in the vehicle’s trunk.
2
Williams and MacMullen (together, the “Defendants”) were then
arrested.
Five months thereafter, on July 30, 2012, the federal grand
jury in Greensboro indicted the Defendants for possessing with
intent to distribute crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). The Defendants moved separately to suppress the
seized evidence and, on November 20, 2012, the district court
conducted an evidentiary hearing (the “initial hearing”). At
the initial hearing, the prosecution presented the testimony of
the deputies, Justin Russell and Jerry Soles, as well as a video
of the traffic stop that was recorded from Russell’s patrol car
(the “Russell Video”). By its December 11, 2012 memorandum
opinion, the court denied the motions to suppress. See United
States v. Williams, No. 1:12-cr-00264 (M.D.N.C. Dec. 11, 2012),
ECF No. 27 (the “First Opinion”).
About three months later, the government produced a second
video of the traffic stop, which had been recorded from Deputy
Soles’s patrol car (the “Soles Video”). The Soles Video
directly contradicted an important aspect of the prosecution’s
evidence at the initial hearing. The Defendants thus sought
reconsideration of the suppression denial, asserting that the
Soles Video undermined the First Opinion. On March 21, 2013,
the court conducted a second evidentiary hearing (the
“reconsideration hearing”). Deputies Russell and Soles again
3
testified and, on April 9, 2013, the court issued a new opinion,
declining again to suppress the evidence. See United States v.
Williams, No. 1:12-cr-00264 (M.D.N.C. Apr. 9, 2013), ECF No. 45
(the “Superseding Opinion”).
On April 17, 2013, a jury convicted Williams of the offense
charged, but acquitted MacMullen. On January 10, 2014, the
district court sentenced Williams to eighty-four months in
prison. Williams timely noticed this appeal, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291.
B.
1.
The pertinent facts are for the most part undisputed. As
spelled out herein, they are drawn from the First Opinion, the
Superseding Opinion, and other aspects of the record.
Deputies Russell and Soles were separately patrolling I-85
near Lexington, North Carolina, during the early hours of
February 13, 2012. Just after midnight, Soles observed two cars
speeding southbound and traveling close together. At about
12:37 a.m., Soles stopped the lead vehicle, driven by Williams’s
brother, and Russell stopped the second vehicle, a Hyundai
rental car driven by Williams with MacMullen as the passenger. 1
1The times of day specified with respect to the
interactions of Williams with Deputies Russell and Soles are
drawn from the time display on the Russell Video.
4
After stopping the Hyundai, Deputy Russell informed
Williams that he was going 80 mph in a 70-mph zone and requested
his driver’s license and vehicle registration. Williams then
provided a New York license and the rental agreement. The
agreement reflected that MacMullen had rented the Hyundai from
Hertz in Totowa, New Jersey, on February 10, 2012. According to
the agreement, the car was to be returned there by 2:30 p.m. on
February 13, 2012 (that afternoon). Russell requested that
Williams exit the Hyundai and sit in his patrol car while he
checked Williams’s documents. Williams did so, and MacMullen
remained in the Hyundai.
Inside the patrol car, Deputy Russell engaged Williams in
conversation as the license check was conducted. Williams
related that he and MacMullen had stopped at his mother’s home
in Virginia Beach and were traveling to Charlotte — about sixty
miles southwest of the traffic stop on I-85 — to visit his
brother for a couple of days. Russell thought he smelled
alcohol and asked Williams if he had been drinking. In
response, Williams said he had consumed a beer with supper.
Russell then asked Deputy Soles, who had stopped the lead
vehicle less than 100 yards away, to administer a breathalyzer
test to Williams. As a result, Soles cut short his traffic stop
of the lead vehicle, gave Williams’s brother a verbal warning,
and went to assist Russell. At approximately 12:45 a.m., Soles
5
moved his patrol car, containing the drug dog Dakota, to a point
along the shoulder of I-85 behind Russell’s patrol car.
Arriving at Russell’s patrol car, Soles greeted Williams through
the open front-passenger-side window at about 12:46 a.m. Soles
administered the breathalyzer test as Williams sat in Russell’s
patrol car.
Deputy Russell then approached the Hyundai to speak with
MacMullen. Russell asked MacMullen about Williams’s alcohol
consumption and the couple’s travel plans. She responded that
Williams had had very little to drink and that they were on
their way to Charlotte. Russell asked why they were going to
Charlotte, and MacMullen responded, “I don’t know, we are just
on vacation.” See First Opinion 4.
Back at Deputy Russell’s patrol car, Deputy Soles continued
to talk with Williams while awaiting the results of the
breathalyzer test. Williams told Soles that he was on vacation
and was going to visit his brother in Charlotte. He also told
Soles that the driver of the lead vehicle was his brother and
that the two vehicles were traveling together. At the initial
hearing, Soles testified that Williams’s statement contradicted
6
the driver of the lead vehicle, who had told Soles that “he
wasn’t traveling with anybody.” See J.A. 75. 2
When Deputy Russell returned to his patrol car, Deputy
Soles informed him that Williams had passed the breathalyzer
test. While Soles listened, Russell advised Williams that he
had passed the test and would receive a written warning for
speeding. When Russell requested an address from Williams to
complete the written warning, Williams gave the post office box
address of his place of employment in New York, which differed
from the New York post office box address on his driver’s
license.
As Deputy Russell was writing the warning, Deputy Soles
asked Williams where he lived. Williams responded that he lived
in both New York and New Jersey and that he and MacMullen had a
child and lived together. When Soles asked where they were
headed, Williams said, “Charlotte.” See First Opinion 4. In
response to a question about their planned stay in Charlotte,
Williams said that they would stay at a Wyndham hotel and that
the length of their stay would depend on how his brother’s wife
acted. When Russell pointed out that the rental car was to be
2
Our citations herein to “J.A. __” refer to the contents of
the Joint Appendix filed by the parties in this appeal.
7
returned in New Jersey that very afternoon, Williams said he
would renew the rental agreement in Charlotte.
Deputy Russell completed the written warning and gave it to
Williams at 12:54:59 a.m. Seconds later, as Williams was
exiting the patrol car, Russell asked if he could pose a
question. After Williams responded affirmatively, Russell
asked, “Nothing illegal in the car?” See First Opinion 5.
Williams responded that there was not. As Russell and Williams
exited the patrol car, Russell persisted — again asking Williams
if he could search the Hyundai — and Williams initially
equivocated. Williams then walked towards the Hyundai, opened
the rear-driver-side door, and gestured that the deputies could
look inside. Deputy Soles then asked for a clear yes-or-no
answer on whether Williams was consenting to a search of the
Hyundai. Williams firmly replied, “[N]o.” Id. at 7.
Immediately thereafter, at 12:56:22 a.m. — a minute and
twenty-three seconds after Deputy Russell issued the written
warning — Deputy Soles advised Williams to “hold on” and that a
dog sniff would be conducted on the vehicle. See J.A. 130;
First Opinion 7. As a result, MacMullen was removed from the
car and Soles walked Dakota around it. Dakota alerted at the
driver’s side of the trunk after completing a full circle of the
vehicle. The dog’s alert was at 12:59:02 a.m. — two minutes and
forty seconds after Soles instructed Williams to hold on so that
8
Soles could conduct the dog sniff. Crack cocaine was thereafter
found and seized from an unlocked safe in the Hyundai’s trunk.
2.
On December 11, 2012, the district court denied the
Defendants’ motions to suppress. By its First Opinion, the
court explained that “the Government’s argument for a finding of
reasonable suspicion” rested on five specific factors:
• The Defendants were traveling “in a rental car”;
• The Defendants were traveling “on a known drug
corridor at 12:37 a.m.”;
• “Williams’ stated travel plans were inconsistent
with, and would likely exceed, the due date for
return of the rental car”;
• “Williams was unable to provide a permanent home
address in New York even though he claimed to live
there at least part-time and had a New York driver’s
license”; and
• “Williams stated that he was traveling with the car
ahead of him, yet that car’s driver denied any
association with Williams.”
See First Opinion 23. 3 As an alternative ground for denying the
suppression motions, the court ruled that the two-minute-and-
forty-second extension for the dog sniff fell “within the
3 The First Opinion spelled out in paragraph form the
factors on which the district court predicated its suppression
ruling. We have reformatted those factors into the five
foregoing bullet points.
9
general parameters of a de minimis delay that does not offend
the Fourth Amendment.” Id. at 32.
In late February or early March of 2013 — almost three
months after the First Opinion — the prosecution provided the
Defendants with the Soles Video, which shows the traffic stop of
the lead vehicle. The government explained that it had produced
the Soles Video in a tardy fashion because it had only then
realized that the stop of the lead vehicle might be relevant.
The Soles Video was Brady material, however, and directly
contradicted Deputy Soles’s evidence at the initial hearing on
the fifth factor identified in the First Opinion. As a result,
the Defendants moved for reconsideration of the court’s
suppression denial.
3.
At the reconsideration hearing on March 21, 2013, the
Defendants relied primarily on the Soles Video. The prosecutor,
seeking to explain the evidentiary contradictions and sustain
the suppression denial, again called both deputies to testify.
Deputy Soles acknowledged that his testimony at the initial
hearing — that Williams’s brother had denied any association
with Williams — was “wrong,” and that he had “made a mistake.”
See J.A. 193. From the bench, the district court recognized
Soles’s earlier testimony as both “wrong” and “not true.” See
10
id. at 252, 271. Deputy Russell simply reiterated his earlier
testimony about stopping the Hyundai for speeding.
On April 9, 2013, the district court issued its Superseding
Opinion. To the First Opinion’s factual recitation, the
Superseding Opinion added the following from the court’s review
of the Soles Video. Less than a minute after Deputy Soles
radioed Deputy Russell for assistance, Soles stopped the lead
vehicle for speeding. 4 Soles asked the driver if he was
traveling with the car behind him (the Hyundai). Williams’s
brother responded, “[W]e together,” contradicting what Soles had
said at the initial hearing. See Superseding Opinion 11. Soles
then instructed Williams’s brother to sit in Soles’s patrol car
as he conducted a license check. During their conversation in
the patrol car, Soles again asked Williams’s brother who was
traveling with him. Williams’s brother responded, “That’s my
brother and his fiancée,” which further contradicted Soles’s
prior testimony. See id. After issuing a verbal warning, Soles
advised Williams’s brother that he was free to go.
4 The Superseding Opinion described the exchange that
occurred between the deputies immediately prior to the traffic
stop. Deputy Soles informed Deputy Russell by radio that he was
observing two cars speeding southbound together. Russell
responded that he would pull behind Soles, and Soles gave him
the license plate information about the Hyundai. Soles then
told Russell to “see if you can get a violation on your own, and
if not we’ll use one of mine.” See Superseding Opinion 10.
Russell responded, “[A]lright.” Id.11
Because Deputy Soles’s discredited testimony was the basis
for the First Opinion’s fifth factor, the Superseding Opinion
recited that “the Government’s argument for a finding of
reasonable suspicion” depended on only four of the five factors
previously identified. See Superseding Opinion 31. The
Superseding Opinion recited the four factors and again denied
the suppression motions, concluding that those factors,
when presented to a reasonable officer, provide
reasonable, articulable suspicion that criminal
activity may be afoot to justify [Deputy] Soles’
limited detention for the purpose of deploying the
drug dog, which was already on the scene.
Id. at 32. The court again ruled, in the alternative, that the
“dog sniff [fell] within the general parameters of a de minimis
delay that does not offend the Fourth Amendment.” Id. at 40.
II.
A district court’s ultimate determination of a reasonable-
suspicion question is assessed de novo. See United States v.
Arvizu, 534 U.S. 266, 275 (2002); Ornelas v. United States, 517
U.S. 690, 699 (1996). Absent clear error, however, we will not
disturb factual findings made by a district court after an
evidentiary hearing on suppression issues. See United States v.
Dire, 680 F.3d 446, 473 (4th Cir. 2012). When a district court
has denied a motion to suppress, we view the evidence in the
12
light most favorable to the government. See United States v.
Watson, 703 F.3d 684, 689 (4th Cir. 2013).
III.
On appeal, Williams reiterates his contention that the
deputies lacked the reasonable suspicion necessary to extend the
traffic stop beyond its initial purpose. 5 As the Supreme Court
made clear in Illinois v. Wardlow, an officer must possess “a
reasonable, articulable suspicion that criminal activity is
afoot” to execute a brief “investigatory detention.” See 528
U.S. 119, 123 (2000).
The government now concedes that the de minimis ground for
denying the suppression motions is legally untenable. As a
result, the prosecutors recognize that their only viable
5 The Superseding Opinion specified that the district court
would focus only on Deputy Soles’s knowledge in its reasonable-
suspicion inquiry because Soles had “decided to conduct the drug
dog sniff on his own order, and there is no evidence that Deputy
Russell did so or participated in the decision.” See
Superseding Opinion 19. For that proposition, the court relied
on our explanation in United States v. Massenburg that “the
collective knowledge doctrine ‘does not permit [a court] to
aggregate bits and pieces of information from among myriad
officers.’” Id. (quoting Massenburg, 654 F.3d 480, 493 (4th
Cir. 2011)). On appeal, however, Williams and the government
both frame the issue in terms of whether the deputies together
had reasonable suspicion. We accept the parties’ articulation,
but observe that — on this record — it matters not whether we
look only to Soles’s knowledge or to the two deputies’ knowledge
collectively.
13
contention is that the district court correctly ruled that — on
this record — reasonable, articulable suspicion justified the
dog sniff of the Hyundai. To that end, they rely solely on the
factors identified by the court in the Superseding Opinion.
A.
1.
Before evaluating the reasonable-suspicion contention, we
identify some pertinent legal principles that bear on its
resolution. A traffic stop constitutes a “seizure” under the
Fourth Amendment and is thus subject to a reasonableness
requirement. See Whren v. United States, 517 U.S. 806, 810
(1996). Because a traffic stop is more akin to an investigative
detention than a custodial arrest, we analyze the
constitutionality of such a stop under the two-prong standard
enunciated in Terry v. Ohio, 392 U.S. 1 (1968). See Arizona v.
Johnson, 555 U.S. 323, 330-31 (2009). Pursuant thereto, we
first determine whether the officer’s reason for the traffic
stop was legitimate. See United States v. Rusher, 966 F.2d 868,
875 (4th Cir. 1992). Second, we examine whether the officer’s
actions during the seizure were “reasonably related in scope” to
the basis for the traffic stop. Id. (internal quotation marks
omitted).
In April of this year — while this appeal was pending —
the Supreme Court decided Rodriguez v. United States, 135 S. Ct.
141609 (2015). Rodriguez held that, absent reasonable,
articulable suspicion of criminal activity, a detaining officer
may not extend an otherwise-completed traffic stop in order to
conduct a dog sniff. See id. at 1614-16. The Court emphasized
that, under Terry’s second prong, the “[a]uthority for the
seizure . . . ends when tasks tied to the traffic infraction are
— or reasonably should have been — completed.” Id. at 1614.
In other words, to extend the detention of a motorist beyond the
time necessary to accomplish a traffic stop’s purpose, the
authorities must either possess “reasonable suspicion or receive
the driver’s consent.” See United States v. Digiovanni, 650
F.3d 498, 507 (4th Cir. 2011); United States v. Branch, 537 F.3d
328, 336 (4th Cir. 2008).
2.
With respect to Terry’s first prong — whether the reason
for the traffic stop was legitimate — Williams does not dispute
that Deputy Russell was entitled to stop the Hyundai for
speeding. On Terry’s second prong — whether the officers’
actions were reasonably related in scope to the basis for the
traffic stop — it is similarly undisputed that Russell had
accomplished the purpose of the stop before Deputy Soles decided
to conduct the dog sniff of the Hyundai. Furthermore, Williams
did not consent to a search of the vehicle. Thus, the propriety
of extending Williams’s detention beyond the completion of the
15
traffic stop turns on whether reasonable, articulable suspicion
existed when Soles decided to conduct a dog sniff of the
Hyundai.
Reasonable suspicion is a “commonsense, nontechnical”
standard that relies on the judgment of experienced law
enforcement officers, “not legal technicians.” See Ornelas v.
United States, 517 U.S. 690, 695 (1996) (internal quotation
marks omitted). To support a finding of reasonable suspicion,
we require the detaining officer “to either articulate why a
particular behavior is suspicious or logically demonstrate,
given the surrounding circumstances, that the behavior is likely
to be indicative of some more sinister activity than may appear
at first glance.” See United States v. Foster, 634 F.3d 243,
248 (4th Cir. 2011).
Under the applicable principles, the relevant facts
articulated by the officers and found by the trial court, after
an appropriate hearing, must “in their totality serve to
eliminate a substantial portion of innocent travelers.” See
United States v. McCoy, 513 F.3d 405, 413 (4th Cir. 2008). As
our McCoy decision explained, however, each articulated fact
need not “on its own eliminate every innocent traveler.” Id.Rather, we “must look at the totality of the circumstances of
each case to see whether the detaining officer has a
particularized and objective basis for suspecting legal
16
wrongdoing.” See United States v. Arvizu, 534 U.S. 266, 273
(2002) (internal quotation marks omitted).
B.
With this framework in mind, we briefly address the de
minimis contention and then turn to a comprehensive analysis of
the reasonable-suspicion question. The prosecution contended in
both hearings in the district court that the officers’ nearly
three-minute extension of Williams’s detention — after
completion of the traffic stop — was for a constitutionally
permissible de minimis period of time. In each of its opinions,
the district court agreed with that proposition. In so ruling,
each opinion relied on our decision in United States v. Farrior,
where we recognized that a de minimis extension of the traffic
stop — during which an officer conducted a dog sniff of
Farrior’s vehicle — was not “a violation of [Farrior’s] Fourth
Amendment rights,” regardless of whether the officer possessed
reasonable suspicion. See 535 F.3d 210, 220 (4th Cir. 2008).
As the government now properly concedes, Rodriguez forecloses
the de minimis ground.
In rejecting the “de minimis rule” for a dog sniff
conducted after a completed traffic stop, the Rodriguez Court
distinguished those practices directed towards ensuring
“[h]ighway and officer safety” — such as checking drivers’
licenses for outstanding warrants — from those animated by “the
17
Government’s endeavor to detect crime in general or drug
trafficking in particular” — such as conducting a dog sniff for
evidence of narcotics. See 135 S. Ct. at 1615-16. Put simply,
the possibility that a dog sniff might reveal drug possession is
not — absent a showing of reasonable, articulable suspicion — a
valid basis for extending a traffic stop. Cf. id. at 1615
(“Lacking the same close connection to roadway safety as the
ordinary inquiries, a dog sniff is not fairly characterized as
part of the officer’s traffic mission.”).
C.
We thus turn to the dispositive issue in this appeal:
whether, on this record, Deputies Russell and Soles had the
reasonable, articulable suspicion of criminal activity necessary
to extend the traffic stop and conduct the dog sniff of the
Hyundai. The district court, for its part, acknowledged that
reasonable suspicion “must rest” on four factors:
• The Defendants were traveling “in a rental car”;
• The Defendants were traveling “on a known drug
corridor at 12:37 a.m.”;
• “Williams’ stated travel plans were inconsistent
with, and would likely exceed, the due date for
return of the rental car”; and
• “Williams was unable to provide a permanent home
address in New York even though he claimed to
live there at least part-time and had a New York
driver’s license.”
18
See Superseding Opinion 31. We evaluate those factors both
separately and in the aggregate, recognizing that our inquiry
must account for the “totality of the circumstances,” rather
than employ a “divide-and-conquer analysis.” See Arvizu, 534
U.S. at 274.
1.
a.
The first factor identified in the Superseding Opinion —
the Defendants’ use of a rental car — is of minimal value to the
reasonable-suspicion evaluation. Neither Deputy Russell nor
Deputy Soles explained any connection between use of a rental
car and criminal activity. We will nevertheless accept that, as
a general proposition, some drug traffickers use rental cars.
See, e.g., United States v. Finke, 85 F.3d 1275, 1277 (7th Cir.
1996) (noting that officer was concerned about rental car
because he knew “drug couriers often used rental cars to avoid
asset forfeiture laws”); United States v. Thomas, 913 F.2d 1111,
1116 (4th Cir. 1990) (“[I]llegal transport of drugs often
involves the use of rental cars traveling from source cities
such as Miami.”). It is similarly beyond peradventure, however,
that the overwhelming majority of rental car drivers on our
nation’s highways are innocent travelers with entirely
legitimate purposes.
19
b.
The second factor relied on in the Superseding Opinion —
that the Defendants were traveling “on a known drug corridor at
12:37 a.m.” — is the only factor that, on its face, makes any
reference to criminal activity. Similar to traveling in a
rental car, however, the number of persons using the interstate
highways as drug corridors pales in comparison to the number of
innocent travelers on those roads. Furthermore, we are not
persuaded by the proposition that traveling south on I-85 late
at night helps narrow the identification of travelers to those
involved in drug activity.
i.
Undoubtedly, many drug traffickers use interstate highways
such as I-85, but so do many more innocent motorists. Put
simply, the interstate highways are the most efficient way to
drive between two points in this country, particularly large
cities. Thus, although we have recognized that law enforcement
officers and the trial courts are entitled to consider a
motorist’s use of an interstate highway as a factor in
determining reasonable suspicion, we are entirely satisfied that
such an observation, standing alone, is entitled to very little
weight. See, e.g., Digiovanni, 650 F.3d at 512-13; accord
United States v. Santos, 403 F.3d 1120, 1132 (10th Cir. 2005)
(observing that prosecution had acknowledged that travel between
20
known drug source and known drug destination was weak factor in
reasonable-suspicion analysis).
Because there is nothing inherently suspicious about
driving at night on an interstate highway, police officers must
rely on their training and experience to link interstate-highway
travel to more specific characteristics of narcotics
trafficking. See, e.g., United States v. Brugal, 209 F.3d 353,
359-60 (4th Cir. 2000) (en banc) (plurality opinion) (observing
that officer “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”); United States v. Foreman, 369
F.3d 776, 784-85 (4th Cir. 2004) (explaining that officer’s
experience with drug interdiction showed that particular highway
was regular corridor for illegal drugs from New York City area
to Tidewater Virginia). Deputies Russell and Soles, however,
offered no evidence in either of the suppression hearings
linking travel on an interstate highway with drug trafficking. 6
6
At trial, Deputy Soles identified the New York City area
as a “source city” for narcotics trafficking. See J.A. 452. He
conceded, however, that “any big city [could] be considered a
source city.” Id. at 457. The Superseding Opinion did not
identify New York as a source city.
21
ii.
There is simply no basis on this record for assigning some
nefarious significance to the 12:37 a.m. time of the traffic
stop. Neither Deputy Russell nor Deputy Soles asserted that
drug traffickers have some disproportionate tendency to travel
on the interstate highways late at night. Nor is there support
for the proposition that nighttime travel — alone or in
combination with other factors identified in the Superseding
Opinion — is an indicator of drug trafficking.
Due to the fact-specific nature of the reasonable-suspicion
inquiry, see United States v. Demoss, 279 F.3d 632, 636 (8th
Cir. 2002), it would be inappropriate for us to peruse appellate
decisions for connections that Deputies Russell and Soles failed
to draw. As we observed in Branch, “context matters” in the
reasonable-suspicion inquiry because “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
circumstances.” See 537 F.3d at 336. It follows that a
determination that a certain fact is suspicious in one case does
not compel the conclusion that the same fact is suspicious in
other cases. See, e.g., United States v. Richardson, 385 F.3d
625, 630 (6th Cir. 2004) (recognizing that, although nervousness
has sometimes been utilized in finding reasonable suspicion, “it
22
is an unreliable indicator, especially in the context of a
traffic stop”).
The Superseding Opinion relied on two Tenth Circuit
decisions in deeming the midnight hour of the traffic stop a
relevant factor in its reasonable-suspicion analysis. See
United States v. Clarkson, 551 F.3d 1196 (10th Cir. 2009);
Gallegos v. City of Colo. Springs, 114 F.3d 1024 (10th Cir.
1997). Our examination of those cases illustrates the problem
with relying mainly on court decisions, as opposed to testimony
from officers in the particular case, to identify certain facts
as suspicious. First, the Clarkson decision involved a late-
night stop of a vehicle that the police had just seen parked in
front of a house that was under surveillance for suspected drug
dealing, violent crime, prostitution, and gang activity. See
551 F.3d at 1198. After stopping the vehicle, an officer
observed that the passenger appeared to be under the influence
of narcotics. Id. at 1199. Second, in the Gallegos case,
police officers had responded to calls reporting a “prowler” and
an inebriated man arguing with a woman. See 114 F.3d at 1029.
Those officers then observed Gallegos, who reeked of alcohol and
was “acting in a very unusual fashion.” Id.In each of those decisions, the Tenth Circuit relied on the
nighttime hour as one of several factors that — taken together
— established reasonable, articulable suspicion of ongoing
23
criminal activity. See Clarkson, 551 F.3d at 1202; Gallegos,
114 F.3d at 1029. We agree that street crime and public
drunkenness are plainly more prevalent at night than during the
day. By contrast, it is far from self-evident that interstate
trafficking of drugs or other contraband is more common at
night. This record does not make an evidentiary connection
between nocturnal travel and drug trafficking, either alone or
in combination with the other factors identified in the
Superseding Opinion. Absent such a connection, that the traffic
stop of Williams occurred at about 12:37 a.m. does not
contribute to a reasonable, articulable suspicion for extending
the otherwise-completed traffic stop to conduct a dog sniff.
c.
The Superseding Opinion’s analysis of its third factor
focused on what the district court characterized as the
“inconsisten[cy]” between Williams’s travel plans and the due
date for return of the rented Hyundai. Williams had advised the
deputies that he and his girlfriend were planning to stay in
Charlotte for a few days, but the rental agreement reflected
that the Hyundai was due to be returned that afternoon in New
Jersey. Williams also said that he would extend the rental
agreement when he arrived in Charlotte. We therefore assess how
the expiring rental agreement, and Williams’s explanation of it,
impact the reasonable-suspicion analysis.
24
In the Tenth Circuit’s Santos decision, the defendant had
“rented a car in California on January 10, was in Wyoming on
January 13, and proposed to drive to New York and back despite a
January 17 ‘due date’ in his rental agreement for returning the
car to California.” See 403 F.3d at 1129. The court of appeals
agreed that “[i]mplausible travel plans can contribute to
reasonable suspicion,” but prudently emphasized that the
prosecution had “presented no evidence that extending the car
rental period would entail any financial penalty, or even any
increase in the rate.” Id. (footnote omitted). “Common
experience suggests,” the Santos decision recognized, that law-
abiding rental car users frequently “extend the rental without
incurring a penalty or paying a higher rate.” Id. The
Superseding Opinion similarly acknowledged that “[t]here are
certainly a ‘large number of innocent travelers who extend their
trips beyond the time originally provided for in their rental
agreements.’” See Superseding Opinion 25-26 (quoting United
States v. Boyce, 351 F.3d 1102, 1110 n.6 (11th Cir. 2003)). We
agree with that proposition. Put simply, planning to extend a
rental agreement “may suggest that the driver’s travel plans are
uncertain or subject to change, but, without more, not that they
are implausible.” See Santos, 403 F.3d at 1129.
Mindful that innocent travelers frequently extend rental
agreements, we turn to the record in this case. Deputy Soles
25
did not mention the rental agreement at either hearing. Deputy
Russell testified at the initial hearing that the Hyundai was
“due back [in New Jersey] that same day, and [Williams] was
traveling away from there. That seemed odd to me.” J.A. 39.
As in Santos, Russell failed to explain how the rental car’s due
date was suspicious. When Russell mentioned to Williams that
the Hyundai was due in New Jersey later that day, Williams
replied promptly that he and MacMullen would renew the rental
agreement in Charlotte. Cf. United States v. McRae, 81 F.3d
1528, 1535 (10th Cir. 1996) (noting that McRae’s “evident lack
of concern,” “unusually cavalier attitude,” and “vague response”
regarding how he would return his rental car “correctly
contributed to a reasonable suspicion in a trained and
experienced officer”). Moreover, as Russell knew during the
traffic stop, the Hyundai had been rented through Hertz, a well-
known car rental business with locations most everywhere.
We do not doubt that the third factor, if it had been
“keyed to other compelling suspicious behavior,” might
contribute to an experienced officer’s reasonable suspicion.
See Digiovanni, 650 F.3d at 513. But no reasonable, articulable
suspicion of criminality arises from the mere fact that
Williams’s travel plans were likely to exceed the initial
duration of the rental agreement.
26
d.
The Superseding Opinion’s fourth factor specified that
“Williams was unable to provide a permanent home address in New
York even though he claimed to live there at least part-time and
had a New York driver’s license.” That assertion, however, does
not fully describe what occurred during the traffic stop.
Although the district court related that Williams had failed to
provide either Deputy Russell or Deputy Soles with his home
address, the record shows that neither deputy asked Williams for
it.
Distilled from the Superseding Opinion’s unwarranted
inference that Williams was unable to provide a home address,
the fourth factor has three aspects: (1) when asked for an
address, Williams gave a post office box address; (2) the
address Williams provided differed from the address on his
driver’s license; and (3) Williams told the deputies that he
lived in both New York and New Jersey. Neither Deputy Russell
nor Deputy Soles explained how using a post office box address,
or living in New York and New Jersey, raised some suspicion of
criminal activity. In fact, neither officer identified any
aspect of the fourth factor as suspicious. Although it is
somewhat ambiguous, the only evidence regarding the significance
of the post office box address suggests that the address did not
raise suspicion. In response to a question on whether the post
27
office box address “affect[ed] [Russell] in the performance of
[his] duties to issue a warning ticket,” Russell said, “I put
[the post office box address] there because I could not get
[Williams’s] formal address. That’s where he received mail, so
I still wrote that for the warning. . . . It didn’t affect.
It was just obscure.” J.A. 54.
Despite the deputies’ failure to draw any suspicion from
Williams’s post office box address, the district court
hypothesized that the “different addresses and [the]
explanations” Williams gave for them “may have legitimately
raised suspicion.” See Superseding Opinion 22 (emphasis added).
In connecting Williams’s use of a post office box address with
possible suspicion, the court relied on our unpublished decision
in United States v. Newland, 246 F. App’x 180 (4th Cir. 2007).
As with the second factor, cherry-picking “relevant factor”
findings from inapposite factual contexts bears little fruit.
Newland had furnished a driver’s license from the U.S. Virgin
Islands and a rental agreement in his name with a Maryland
address, but advised the officers that he lived in Washington,
D.C. See Newland, 246 F. App’x at 182-83, 189. The officers
suspected immediately — and correctly — that the Virgin Islands
license was fraudulent. Id. at 182-83. Newland was also
visibly nervous, and when asked why he had used the Maryland
address on the rental agreement, he “hesitated” before
28
explaining that the address was his girlfriend’s. Id. at 182,
189. In those circumstances, we concluded that three different
addresses — including one on a fake driver’s license —
reasonably aroused the officers’ suspicion. Id. at 189.
Moreover, at the suppression hearing, the officers “described in
some detail the reasons for their suspicions about Mr. Newland’s
license.” Id. at 188. Nothing in Newland suggests, however,
that receiving mail at a different address from that shown on
the recipient’s driver’s license provides a reasonable basis for
suspicion.
Put succinctly, Deputies Russell and Soles failed to
develop the fourth factor with Williams during the traffic stop
and offered no explanation of how that factor contributed to any
reasonable suspicion. Absent some factual underpinning, the
significance of the fourth factor collapses.
2.
As explained above, each of the factors relied on in the
Superseding Opinion — standing alone — fails to support any
reasonable, articulable suspicion of criminal activity. That
analysis does not end our inquiry, however, because, as we have
recognized, “reasonable suspicion may exist even if each fact
standing alone is susceptible to an innocent explanation.” See
McCoy, 513 F.3d at 413-14. Under the applicable standard, the
facts, “in their totality,” should “eliminate a substantial
29
portion of innocent travelers.” Id. at 413. Furthermore, an
officer must “either articulate why a particular behavior is
suspicious or logically demonstrate, given the surrounding
circumstances, that the behavior is likely to be indicative of
some more sinister activity than may appear at first glance.”
See Foster, 634 F.3d at 248.
a.
According to the Superseding Opinion, reasonable suspicion
existed because the four factors, “taken together[,] . . .
eliminate a substantial portion of innocent travelers.” See
Superseding Opinion 31. In pressing the contrary conclusion,
Williams relies on our decision in Digiovanni. There, we
rejected the government’s appeal and affirmed a suppression
ruling based on a Fourth Amendment violation. The officer in
Digiovanni sought to rely on ten factors, including some that
are similar to those in the Superseding Opinion. For example,
Digiovanni was driving a rental car on I–95, which was
characterized as “a known drug corridor.” See 650 F.3d at 512-
13. When asked about his travel itinerary, Digiovanni described
an “unusual” route that included various stops to visit family
members. Id. at 502-03, 512-13.
To be fair, Digiovanni’s plan to ride the “Auto Train” for
part of his trip, which would have temporarily separated him
from his vehicle, “cut[] against the government’s argument” for
30
reasonable suspicion. See Digiovanni, 650 F.3d at 513. Of
importance, however, the officer specified two other factors
that — in context — were relevant to the reasonable-suspicion
analysis. First, Digiovanni had flown one-way into Florida — “a
known drug source state” — and rented a car for the return trip
to the northeast. Id. at 512-13. Second, “Digiovanni’s hands
were trembling when he handed over his driver’s license and the
rental [car] contract.” Id. at 512. Our Digiovanni decision
observed that the officer was “entitled to rely to some degree”
on those two factors, in addition to others. Id. at 512-13.
Nonetheless, Judge Hamilton concluded that “reasonable suspicion
was not present to turn [Digiovanni’s] routine traffic stop into
a drug investigation.” Id. at 513. At bottom, all the
authorities could “link to the unusual travel itinerary” was
that “Digiovanni rented a car from a source state, was stopped
on I–95, and was initially nervous.” Id.
Our Digiovanni decision is consistent with the Eleventh
Circuit’s decision in Boyce. In that case, the court evaluated
circumstances that are materially indistinguishable from the
first three factors relied on in the Superseding Opinion: Boyce
was “driving a rental car on a known drug corridor [I-95],” and
“planning to return the car two days late,” that is, his stated
travel plans exceeded the duration of the rental agreement. See
31
351 F.3d at 1109. 7 The Eleventh Circuit ruled that those
factors, in their totality, were insufficient to create
reasonable suspicion because they “would likely apply to a
considerable number of those traveling for perfectly legitimate
purposes.” Id. (internal quotation marks omitted).
Neither Digiovanni nor Boyce dealt with the fourth factor
specified in the Superseding Opinion — dual residency and
differing addresses. On this record, however, that factor does
not tip the balance. It is not atypical for a person to receive
mail at an address other than the one on his driver’s license,
nor is it uncommon for a person to receive mail at his
employer’s address. And many businesses receive their mail at
post office box addresses — one need only leaf through the
nearest magazine or journal for a subscription insert. Finally,
the fact that Williams was splitting time between residences in
New York and New Jersey is unremarkable.
Stated simply, the Superseding Opinion’s four factors — in
the aggregate — fail to eliminate a substantial portion of
innocent travelers. Because the applicable standard requires
7A police officer stopped Boyce on I-95 shortly before
midnight. See Boyce, 351 F.3d at 1104. In its reasonable-
suspicion analysis, the Eleventh Circuit did not rely on the
late hour of the traffic stop.
32
such a showing, the government’s contention fails to pass
constitutional muster. 8
b.
Even if the Superseding Opinion’s four factors were to
eliminate a substantial portion of innocent travelers, Williams
would yet prevail. The deputies neither articulated how
Williams’s particular behavior was suspicious nor logically
demonstrated that his behavior was indicative of some more
sinister activity than appeared at first glance, as our Foster
decision requires.
It is well settled that, in the reasonable-suspicion
inquiry, we “credit the practical experience of officers who
observe on a daily basis what transpires on the street.” See
Branch, 537 F.3d at 336-37 (internal quotation marks omitted).
Nevertheless, officers must apply their experience so that the
courts can make informed decisions on whether their suspicions
are reasonable. See Foster, 634 F.3d at 248 (explaining that
8
We observe that the First Opinion’s discarded fifth factor
— “Williams stated that he was traveling with the car ahead of
him, yet that car’s driver denied any association with Williams”
— supported the presence of reasonable suspicion in this case.
See First Opinion 23. That factor, however, was entirely
undermined by the Soles Video and the evidence at the
reconsideration hearing. Indeed, the trial court characterized
Deputy Soles’s earlier testimony with respect to the fifth
factor as “not true.” See J.A. 271. If the fifth factor were
viable, our conclusion today might well be different.
33
“an officer and the Government must do more than simply label a
behavior as ‘suspicious’ to make it so”). Were it otherwise, an
experienced police officer’s recitation of some facts, followed
simply by a legal catchphrase, would allow the infringement of
individual rights with impunity. See Digiovanni, 650 F.3d at
512 (cautioning against “the inclination of the Government
toward using whatever facts are present, no matter how innocent,
as indicia of suspicious activity” (internal quotation marks
omitted)). Put simply, our precedent requires that the
authorities articulate or logically demonstrate a connection
between the relevant facts and criminal activity. See Foster,
634 F.3d at 248.
This record fails to show how the four factors — separately
or cumulatively — reasonably pointed to criminal activity. At
the initial hearing, Deputy Soles testified generally that,
prior to ordering the dog sniff, “I had already kn[own] and seen
for myself indicators commonly associated with those that are
involved in criminal activity.” See J.A. 86. He later
explained, in a conclusory fashion, that officers may “ask for
consent to search” or “conduct a K-9 scan” when “we see
indicators commonly associated with those that are involved in
criminal activity, and[,] due to the totality of those
circumstances that we see during that stop[,] [we believe] that
criminal activity may be afoot.” See id. at 92. Deputy Russell
34
testified in the reconsideration hearing that the factors
mentioned in his police report “drew [his] suspicion,” but he
did not identify those factors or further elaborate on how they
were connected to criminal activity. See id. at 227-28. We do
not question the experience of these officers, but the
prosecution is obliged to present evidence articulating
reasonable suspicion.
Having assessed de novo the reasonable-suspicion question,
we are simply not convinced that Deputies Russell and Soles
possessed a reasonable, articulable suspicion of criminal
activity during the traffic stop. Extending the otherwise-
completed stop of the Hyundai to conduct a dog sniff thus
contravened the Fourth Amendment.
IV.
Pursuant to the foregoing, we vacate Williams’s conviction
and sentence and remand for such other and further proceedings
as may be appropriate.
VACATED AND REMANDED
35