United States v. Newland , 246 F. App'x 180 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4219
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
KEVIN NEWLAND, a/k/a Kevin Kairo,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:05-cr-00458-RDB)
Argued: September 21, 2006 Decided: June 6, 2007
Before WILLIAMS and GREGORY, Circuit Judges, and Thomas E.
JOHNSTON, United States District Judge for the Southern District of
West Virginia, sitting by designation.
Reversed and remanded by unpublished opinion. Judge Johnston wrote
the opinion, in which Judge Williams concurred. Judge Gregory
wrote an opinion concurring in part and dissenting in part.
ARGUED: Gregory Welsh, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellant. Fred Warren Bennett, BENNETT
& BAIR, L.L.P., Greenbelt, Maryland, for Appellee. ON BRIEF: Rod
J. Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellant. Gary E. Bair, BENNETT & BAIR, L.L.P., Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
JOHNSTON, District Judge:
The Government appeals the district court’s order granting
Kevin Newland’s motion to suppress evidence seized from a search of
his rental vehicle on September 21, 2005. Based on statements
given to officers and immigration agents on the road side and while
in state custody, Mr. Newland was indicted for falsely and
willfully representing himself to be a citizen of the United
States. On the merits, we reverse the district court’s suppression
order because the trooper who stopped Mr. Newland had reasonable
suspicion to detain him until the canine unit scanned the vehicle.
Once the canine alerted to the presence of narcotics, the officers
had probable cause to search the vehicle.
I.
A.
On September 21, 2005, Maryland State Trooper David McCarthy
(Trooper McCarthy) was conducting drug interdiction on Interstate
95.1 At approximately 11:57 a.m., Trooper McCarthy stopped a white
Ford Taurus with Georgia plates for speeding northbound in Cecil
County, Maryland. He approached the passenger side of the vehicle
and noticed an open cell phone line and several other cell phones
1
Trooper McCarthy is a member of Pro-Active Criminal
Enforcement Team, a state police task force specifically trained to
identify possible drug traffickers on I-95. (J.A. 37.)
2
in the vehicle’s console. Trooper McCarthy asked the driver, the
car’s sole occupant, for his license and registration and directed
him to close the open cell phone. Trooper McCarthy noticed that
the driver’s hands were shaking “uncontrollably” while he gathered
the requested paperwork and that he appeared extremely nervous.
(J.A. 170)
The driver produced a United States Virgin Islands driver’s
license and a rental agreement for the Taurus. When Trooper
McCarthy asked for his current address, the driver stated that he
was living in Washington, D.C. The rental agreement, however,
listed a Maryland address. When Trooper McCarthy asked the driver
why he used a Maryland address to rent the car if he lived in
Washington, D.C., the driver hesitated, and “eventually” said that
it was his girlfriend’s address. (J.A. 170) According to Trooper
McCarthy, the driver’s nervousness persisted.
Trooper McCarthy returned to his vehicle. He examined the
license and immediately suspected that it was fraudulent, but was
unable to verify its authenticity because the Maryland State Police
do not have access to a database that includes the Virgin Islands.
Based on his interaction with the driver, Trooper McCarthy
requested that Trooper Catalano and his canine unit respond to the
scene. He then proceeded to conduct a warrant check in the name of
Kevin Kairo. Approximately two minutes later, the warrant check
was returned negative.
3
Around the time that Trooper McCarthy was reviewing the
driver’s paperwork, Troopers Connor and Lewis arrived at the scene.
Trooper Connor also thought the license looked suspicious, and
approached the driver, who was still seated in his vehicle. When
Trooper Connor asked the driver about his destination, he informed
the trooper that he was traveling to New York City to play soccer.
Troopers McCarthy and Connor discussed the driver’s statements
and nervous demeanor, and both observed that there was no visible
luggage in the back seat. They also noticed that the rental car
was due to be returned in Maryland in only a few hours despite the
driver’s plans to visit New York City.
Trooper Catalano and his drug detection dog arrived on the
scene shortly after Troopers Connor and Lewis, at approximately
12:08 p.m. The driver was asked to exit the vehicle during the
scan pursuant to standard procedure. At 12:10 p.m., the dog
scanned the exterior of the vehicle and alerted to the presence of
narcotics at the front passenger window. Based on the canine’s
positive alert, the troopers searched the car and discovered
$55,729 in cash inside a nylon bag located on the front passenger
seat. The driver claimed that he owned the bag but did not know
how the money got inside the bag. The canine then conducted a scan
on the cash and alerted to the presence of narcotics.
The driver was taken into custody and brought to the Maryland
State Police barracks to verify his identity. A finger print
4
identification check sent to the Federal Bureau of Investigation
(FBI) failed to produce results. The state police then contacted
the United States Bureau of Immigration and Customs Enforcement
(ICE). Agent Robin Betkey responded and contacted the U.S. Virgin
Islands Police. Agent Betkey’s contact in St. Croix informed her
that there was no valid driver’s license in the name of Kevin Kairo
and the address on the license did not exist in St. Thomas. Agent
Betkey then searched for the driver’s fingerprints in the ICE
database. The ICE database identified the driver as Kevin Newland,
a citizen of Jamaica who was lawfully present in the United States.
The database also revealed that there was an outstanding warrant
for Mr. Newland’s arrest in Maryland for possession of a controlled
substance with intent to distribute.
A subsequent FBI analysis proved that the driver’s license and
U.S. Virgin Island’s birth certificate, which was provided by Mr.
Newland’s wife at the police barracks, were fraudulent. Mr.
Newland was charged with falsely and willfully representing himself
to be a citizen of the United States in violation of 18 U.S.C. §
911.
B.
Mr. Newland filed a motion to suppress the birth certificate,
money seized, and all subsequent statements made to law enforcement
officers after Trooper McCarthy received the negative warrant
check. At the suppression hearing, Trooper McCarthy testified that
5
he detained Mr. Newland because he suspected that the driver’s
license was fake and therefore could not properly execute the
warning ticket without knowledge of the driver’s true identity. He
also testified that he detained Mr. Newland based on the totality
of the circumstances, which included Mr. Newland’s statements and
nervous demeanor during their initial discussion at the road side.
Troopers McCarthy and Connor both testified at the suppression
hearing that the license was an obvious fake and that Mr. Newland’s
detention was therefore reasonable based on the totality of the
circumstances. The district judge questioned both troopers
thoroughly about their reasons for believing the license was
fraudulent. Trooper McCarthy testified that the hologram was faded
and distorted. Trooper Connor testified that the font on the
license was of poor quality and that it was thicker than a standard
license. He also testified that the grey haze behind the lettering
indicated that the license was not authentic.
The district judge closely examined the license based on the
testimony of the troopers. The court also compared the license to
a proffered Maryland license to compare its width and length.
Despite close scrutiny, the district judge did not discern the
abnormalities described by the troopers. The trial judge proceeded
to find that the U.S. Virgin Islands driver’s license was not an
“obvious fake.” [J.A. 138] Based on this finding, the court found
that Trooper McCarthy’s suspicion about the license did not justify
6
the trooper’s decision to detain Mr. Newland once he received the
negative warrant check. The court further found that Trooper
McCarthy needed reasonable suspicion of a serious crime to continue
to detain Mr. Newland beyond the warrant check. The trial court
found that Trooper McCarthy’s testimony failed to articulate such
a suspicion, and granted Mr. Newland’s motion to suppress.
II.
We first address Mr. Newland’s motion to dismiss. On October
31, 2006, Mr. Newland moved to dismiss this appeal because the
Government failed to file a timely Certification of the United
States Attorney in accordance with 18 U.S.C. § 3731. “Section 3731
permits the United States to file an interlocutory appeal from an
adverse suppression ruling (before the defendant has been put in
jeopardy and before the verdict or finding on an indictment or
information) only if it makes that certification to the district
court.” United States v. Dequasie, 373 F.3d 509, 515 (4th Cir.
2004). We have previously expressed our assumption that the
certification must be filed within the same 30-day period for which
the United States must notice an appeal under § 3731. See
DeQuasie, 373 F.3d at 515 n.6; In re Grand Jury Subpoena, 175 F.3d
332, 337 (4th Cir. 1999).
“The certification requirement of Section 3731 operates to
ensure that before the United States interrupts a criminal
7
proceeding (and thereby delays a defendant from obtaining
resolution of the charges against him) by taking an interlocutory
appeal, it has evaluated whether the appeal is warranted.”
Dequasie, 373 F.3d at 515. “The certificate is not a mere
formality; its purpose is to protect the accused from undue delay.”
United States v. Herman, 544 F.2d 701, 794 (5th Cir. 1977). That
purpose is thwarted by the perfunctory filing of the certificate
after the appeal has been docketed and briefed. We have previously
warned the Government that “future failures to timely file will not
be taken lightly.” Hatfield, 365 F.3d at 338. We now have two
additional appeals raising the same issue, this case and United
States v. McNeill, No. 06-4444, which is being decided with this
case. Although there is no assertion that the Government acted in
bad faith or with a dilatory motive, its actions have caused a
significant procedural flaw in this appeal and in McNeill.
We have outlined several factors to determine whether an
appeal should proceed despite the § 3731 irregularity: (1) how
late the certification was filed, (2) the reason for its lateness,
(3) whether the Government engaged in a “conscientious pre-appeal
analysis” and is appealing in good faith, (4) whether the
Government acknowledges the importance of the certification, (5)
prejudice to the defendant, (6) the need for appellate
clarification of novel or complex legal issues, and (7) “whether
8
the appeal should be heard in the interests of justice.” Hatfield,
365 F.3d at 337-38; see also DeQuasie, 373 F.3d at 516.
In short, because the certification requirement is intended to
protect the defendant from undue delay, the most salient factors to
consider must relate to whether the Government’s failure to file
the certification as required caused actual substantial prejudice
to the defendant. See DeQuasie, 373 F.3d at 517 (Courts are not
likely to dismiss an appeal unless the defendant is able to show
“actual substantial prejudice”(quoting United States v. Smith, 263
F.3d 571, 578 (6th Cir. 2001)).
Oral argument was heard on this appeal on September 21, 2006.
The Government did not file the certificate until October 13, 2006,
almost eight months after the Notice of Appeal was filed. This is
a serious delay and a large lapse in professionalism on the part of
the Government. However, in consideration of the McNeill case and
the Government’s articulated position, several factors tilt the
equities of retaining this appeal in the Government’s favor.
As previously stated, there is no suggestion that the
government acted in bad faith or with a dilatory motive. The
suppression hearing below was handled by an Assistant United States
Attorney who left the United States for official duty in Iraq
shortly after his filing the Notice of Appeal in this case. Before
leaving the country, he communicated with the Appellate Section of
the Criminal Division, Department of Justice, and began the process
9
of obtaining the permission of the Solicitor General to pursue this
appeal. An Order was issued by this Court on March 7, 2006,
setting a briefing schedule. As a result, the case was transferred
to Gregory Welsh, the Assistant U. S. Attorney now handling this
appeal. On April 10, 2006, the appeal was authorized by the
Solicitor General.
Section 3731 does not give a deadline by which the government
must file the certification. We have assumed, however, without
deciding, that because it is necessary to the perfection of an
appeal, the government must file the certification within the 30-
day period for appeal of the interlocutory order. See 18 U.S.C. §
3731; DeQuasie, 373 F.3d at 515 n.6; In re Grand Jury Subpoena, 175
F.3d at 337. To give effect to the § 3731 protections and to
remove doubt about when it must be filed, we now hold, in
conjunction with McNeill, that the certification must be filed with
the notice of appeal filed by the Government under § 3731. This
requirement assures that the Government will have determined that
the appeal is warranted under § 3731 before disrupting the trial
process by noticing an appeal. In imposing this requirement, we
join other courts that have imposed a similar requirement. See,
e.g., United States v. Salisbury, 158 F.3d 1204, 1207 (11th Cir.
1998); United States v. Bailey, 136 F.3d 1160, 1163 (7th Cir.
1998).
10
The U.S. Attorney’s Office did not realize its omission in
this case until October 12, 2006, when the United States Attorney
himself realized that the certification he had signed in McNeill
had been filed in this Court, not the district court as required by
§ 3731. This prompted the U.S. Attorney to check with the
Assistant U.S. Attorney handling this case (a similar interlocutory
appeal) to inquire whether the § 3731 certificate had been properly
filed. The U.S. Attorney learned that a certificate had not been
filed, and directed that a certificate be properly filed in this
case and in McNeill.
This omission went unnoticed not only by the Government, but
also by Mr. Newland, his counsel, and this Court. We question
whether the omission would have ever been noticed had the
Government not filed the certification. However, rather than
ignore an irregularity created by his office, the U. S. Attorney
himself stepped in to address the problem and rightly filed the
certification in both cases. The U.S. Attorney also filed a
declaration as an attachment to the Government’s opposition that
announced a new § 3731 policy for that U. S. Attorney’s office.
Specifically, the U. S. Attorney instituted a new guideline
regarding § 3731 certifications that was circulated to all of his
assistants and each U. S. Attorney in the Fourth Circuit. He
amended the U.S. Attorney practice manual for his office and
requested similar amendments to the manuals issued by the
11
Department of Justice. It is thus clear that the Government
acknowledges the importance of the certification requirement.
Most important, Mr. Newland does not appear to have suffered
actual substantial prejudice from the delayed certification. Mr.
Newland contends that he was prejudiced because at the time of his
arrest he faced additional charges in another jurisdiction and was
delayed in obtaining resolution of those charges. Mr. Newland was
detained for approximately five months on the instant charge before
he was transferred to the other jurisdiction upon the filing of the
notice of appeal in this case. The appeal itself proceeded on time
despite the delayed certification. As no one contends that the
Government is required to file a § 3731 certification before the
notice of appeal, it is difficult to find that Mr. Newland suffered
substantial prejudice. We do not think that a timely certification
would have affected his transfer to a separate jurisdiction.
Here, as in Dequasie, the issues raised on appeal are
significant and will further assist in defining the boundaries
drawn by the Fourth Amendment. Although not every factor
articulated here supports the Government’s position, the interests
of justice weigh in favor of exercising our discretion to hear this
12
appeal.2 Accordingly, we deny Mr. Newland’s motion to dismiss. We
now turn to the merits.
III.
A.
The determination of whether given facts amount to reasonable
suspicion vel non is a legal one, which we review de novo. United
States v. Foreman, 369 F.3d 776, 782 (4th Cir. 2004). We give
deference, however, to the trial court’s factual determinations.
Id. “[A] reviewing court should take care both to review findings
of historical fact only for clear error and to give due weight to
inferences drawn from those facts by resident judges and local law
enforcement officers.” Ornelas v. United States, 517 U.S. 690, 699
(1996).
2
Although the entire Justice Department was certainly on
notice of Hatfield and Dequasie, as a practical matter we realize
that he Government is not an omniscient monolith, and this is
particularly significant when one considers that both Hatfield and
Dequasie involved the same U. S. Attorney’s office in a state other
than Maryland. We note that the U. S. Attorney for the District of
Maryland has requested that the Appellate Section of the Criminal
Division of the Department of Justice make it a policy to ensure
the filing of the § 3731 certification whenever the Solicitor
General approves such an appeal. Whether instituted by the
Solicitor General, the Criminal Division, or each U. S. Attorney,
we strongly encourage the Government to adopt such a policy as soon
as practicable. In the wake of this opinion and McNeill, any
reason offered by the Government for a future failure to file a
timely § 3731 certification will be viewed, at best, with
skepticism.
13
B.
The Government argues that the trial judge erroneously ruled
that the canine sniff occurred outside the scope of the traffic
stop. The Government also asserts that, based on the totality of
the circumstances, Trooper McCarthy had the requisite suspicion to
detain Mr. Newland until the canine scanned the vehicle.
Mr. Newland contends that the district court correctly
concluded that Trooper McCarthy unreasonably prolonged the traffic
stop in violation of the Fourth Amendment. He concedes that he was
lawfully detained, but asserts that his rights were violated when
he was held for thirteen minutes while Trooper McCarthy followed
his “hunch” that Mr. Newland’s nervousness and conflicting answers
signaled that criminal activity was afoot. Terry v. Ohio, 392 U.S.
1, 27 (1968).
The Fourth Amendment guarantees “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV.
“Temporary detention of individuals during the stop of an
automobile by the police, even if only for a brief and limited
purpose, constitutes a seizure of a person within the meaning of
the Fourth Amendment.” United States v. Brugal, 209 F.3d 353, 356
(4th Cir. 2000)(quoting Delaware v. Prouse, 440 U.S. 648, 653
(1979)). As with other categories of police action subject to
Fourth Amendment constraints, the reasonableness of a road side
14
seizure “must strike a balance between the public interest and the
individual's right to personal security free from arbitrary
interference by law officers.” United States v. Brignoni-Ponce,
422 U.S. 873, 878 (1975).
We previously defined the proper scope of a routine traffic
stop in United States v. Rusher, explaining that “an officer may
request a driver’s license and vehicle registration, run a computer
check and issue a citation.” 966 F.2d 868, 878 (4th Cir. 1992).
However, once “the driver has produced a valid license and proof
that he is entitled to operate the vehicle he must be allowed to
proceed on his way . . . .” Id. at 876. A seizure “justified
solely on the basis of issuing a citation can become unlawful if it
is prolonged beyond the time reasonably required to complete that
mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). Thus,
once the traffic stop is complete, any continued detention of the
driver violates the Fourth Amendment unless the officer develops a
reasonable, articulable suspicion of a serious crime. Florida v.
Royer, 460 U.S. 491, 498 (1983); Foreman, 369 F.3d at 781.
The concept of reasonable suspicion is “a commonsensical
proposition” and the trial courts “are not remiss in crediting the
practical experiences of officers who observe, on a daily basis,
what transpires on the street.” United States v. Lender, 985 F.2d
151, 154 (4th Cir. 1993). The standard of reasonable suspicion
does, however, require “a minimum level of objective justification
15
for the police action.” Brugal, 209 F.3d at 359 (quoting Illinois
v. Wardlow, 528 U.S. 119, 123 (2000)). It demands more than an
officer’s “inchoate and unparticularized suspicion” or “hunch that
criminal activity is afoot.” Brugal, 209 F.3d at 359 (quoting
Terry, 392 U.S. at 27)). In the context of a routine traffic stop,
the “articulated factors together must serve to eliminate a
substantial portion of innocent travelers before the requirement of
reasonable suspicion will be satisfied.” Foreman, 369 F.3d at 781.
C.
We think the reasoning of the trial court here departs from
our decisions in Foreman and Brugal. See Foreman, 369 F.3d at 782;
Brugal, 209 F.3d at 359. “The Supreme Court has recognized that
factors consistent with innocent travel can, when taken together,
give rise to reasonable suspicion.” Brugal, 209 F.3d at 359
(citing Sokolow,490 U.S. at 9). Simply put, an officer is not
required to eliminate the possibility of innocent conduct for the
seizure to pass constitutional muster. United States v. Arvizu,
534 U.S. 266, 277 (2002) (citing Wardlow, 528 U.S. at 125).
Here, Trooper McCarthy, an officer with special training and
experience in the identification of drug trafficking and who had
seen “probably hundreds of fake identification[s]” prior to
stopping Mr. Newland, (J.A. at 42), immediately believed that Mr.
Newland’s license was fake. At the suppression hearing, both
McCarthy and Trooper Conner, who also possesses extensive
16
experience with fake identifications, described in some detail the
reasons for their suspicions about Mr. Newland’s license. Although
the district court discounted the officers’ observations about the
license based on its own inspection, the court never made an
adverse credibility finding about their testimony, and the court
acknowledged that it does not look at fake driver’s licenses “on a
routine basis.” (J.A. at 156.)
Also, Mr. Newland was traveling on I-95, a major thoroughfare
for narcotics trafficking. Brugal, 209 F.3d at 358 n.5 (I-95 is a
well known drug corridor); Foreman, 369 F.3d at 785(characteristics of location in which the officer encounters
vehicle is a significant factor in formulating reasonable
suspicion) (citing Brignoni-Ponce, 422 U.S. at 884). In fact, I-95
is so well known for its use by drug traffickers that this circuit
has twice recognized that travel on I-95 is a valid factor in a
reasonable suspicion analysis. Brugal, 209 F.3d at 358 n.5;
United States v. Raymond, 152 F.3d 309, 311 (4th Cir. 1998). In
addition, each state in this circuit through which I-95 passes has
acknowledged its reputation as a drug corridor. (J.A. 37)
(Maryland);United States v. Vidal, 119 Fed. App’x 510, 511 (4th
Cir. 2005) (citing Brugal with approval for the proposition that
travel on I-95 is a factor contributing to reasonable suspicion);
United States v. Bodie, 983 F.2d 1058, 1059 (4th Cir.
1992)(Virginia)(defendants apprehended on I-95 in close proximity
17
to heavy drug trafficking area); Limonja v. Com., 383 S.E.2d 476,
482 (Va. App. 1989) (I-95 North a known drug trafficking route);
United States v. Thorpe, 36 F.3d 1095, 1096 (4th Cir. 1994) (North
Carolina); Brugal, 209 F.3d at 358 n.5 (South Carolina). Although
we have not yet taken judicial notice of this fact, we do so now,
and recognize I-95 as a major thoroughfare for narcotics
trafficking.3
When Mr. Newland produced his license and rental agreement,
his hands “were shaking uncontrollably.” (J.A. 170); Wardlow, 528
U.S. at 124 (physical signs of nervousness and evasive behavior is
a pertinent factor in determining reasonable suspicion)(citing
Brignoni-Ponce, 422 U.S. at 885 (same)); Sokolow, 490 U.S. at 8-9
(same); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (same); Foreman,
369 F.3d at 785 (same). Although Mr. Newland’s shaky hands alone
are not sufficient to establish reasonable suspicion, we should not
discount Trooper McCarthy’s ability to ascertain the severity of
Mr. Newland’s nervousness in comparison to the behavior of
motorists he has encountered in the past. See Lender, 985 F.2d at
154 (courts are not remiss in crediting the practical experiences
3
Courts of Appeals may take judicial notice of any fact not
subject to reasonable dispute if it is generally known within the
territorial jurisdiction of the trial court and is capable of
accurate and ready determination by resort to sources whose
accuracy cannot be reasonably questioned. Fed. R. Evid. 201(f)
(judicial notice may be taken at any stage of proceeding); Flath v.
Bombardier, Inc., 217 F.3d 838 (4th Cir. 2003).
18
of officers who observe, on a daily basis, what transpires on the
street); Foreman, 369 F.3d at 785 (shaking hands indicative of
nervousness and pertinent factor in reasonable suspicion
determination).
Mr. Newland also provided three different and conflicting
addresses to Trooper McCarthy - St. Thomas, Washington, D.C., and
Maryland. He also observed Mr. Newland’s obvious hesitation when
asked to explain why the Maryland address was used on the rental
agreement. See Wardlow, 528 U.S. at 124 (evasive behavior and
hesitation during questioning are pertinent factors in determining
reasonable suspicion).
In addition, Trooper McCarthy testified that he noticed
multiple cell phones in the vehicle’s console. While the presence
of multiple cell phones, by itself, may not be suspicious, when
taken together with the other circumstances present in this case,
this factor contributes to the process of elimination of a
substantial portion of innocent travelers. Foreman, 369 F.3d at
781.
Under the totality of these circumstances, it was not
unreasonable for Trooper McCarthy to suspect that Mr. Newland was
trafficking narcotics. Brugal, 209 F.3d at 361-62 (use of rental
vehicle common method to transport drugs); Wardlow, 528 U.S. at 12(determination of reasonable suspicion must be based on commonsense
judgments and inferences about human behavior). Trooper McCarthy’s
19
suspicion was further reinforced by Troopers Connor and Lewis, who
arrived “shortly” after Trooper McCarthy had called for back up.
(J.A. 45.) When Trooper Connor asked Mr. Newland about his
destination, he stated that he was on his way to New York City, a
known narcotics source city, to play soccer. See Brugal, 209 F.3d
at 361-62 (travel on known drug corridor coupled with rental car
and destination to New York, a known source city, all factors
contributing to reasonable suspicion). In addition, Troopers
McCarthy and Connor testified that they were suspicious about Mr.
Newland’s travel plans because the Maryland rental agreement was
due to expire later that afternoon, despite the defendant’s plans
to travel to New York. The troopers also noted no visible luggage
in the car. Brugal, 209 F.3d 353 at 359 (noting unusual travel
plans and inadequate luggage as factors contributing to reasonable
suspicion).
In United States v. Arvizu, the Supreme Court found that
children waiving in a mechanical fashion to a border patrol agent
from the rear window of a minivan was, standing alone, a seemingly
innocuous event, but when coupled with the remote location of the
minivan, its presence on a route frequented by drug smugglers, the
evasive behavior of the driver, and the elevated position of the
passengers’ feet, his observations were enough to amount to
reasonable suspicion. 534 U.S. 266, 277 (2002). The Supreme Court
has consistently rejected attempts by lower courts to evaluate and
20
reject factors in isolation from each other because this approach
“does not take into account the ‘totality of the circumstances’ as
our cases have understood that phrase.” Id.In our opinion, the factors articulated by Trooper McCarthy,
a state trooper with six years of experience, eliminate a
substantial portion of innocent travelers.4 Foreman, 369 F.3d at
785 (nervous behavior, coupled with travel on known drug corridor
in a rental vehicle and destination to New York City, a known
source city, and unusual travel plans sufficient to establish
reasonable suspicion); see Arvizu, 534 U.S. at 274-75 (rejecting
evaluation of “innocent travel” factors in insolation from each
other and advising against a “divide-and-conquer” approach when
determining sufficiency of reasonable suspicion).
The information supplied by Mr. Newland justified a lengthier
stop. We conclude that it was reasonable to detain Mr. Newland
long enough for the canine unit to arrive and confirm or deny
Trooper McCarthy’s suspicions. The canine drug scan began
approximately thirteen minutes after Mr. Newland was stopped.
Given the totality of the circumstances, we cannot say that
Troopers Cooper and Lewis’ response time made the length of the
stop unreasonable. There was also no unreasonable delay caused by
Trooper Catalano. The whole affair lasted less than fourteen
4
Because we conclude that Officer McCarthy had reasonable
suspicion to detain Mr. Newland until the arrival of the canine
unit, it is not necessary to address whether the canine scan
occurred within the scope of Mr. Newland’s concededly lawful
traffic stop, as the Government asserts. See Caballes 543 U.S. at
407.
21
minutes. Once the canine alerted to the presence of drugs, the
troopers had probable cause to search the vehicle. United States
v. Jeffus, 22 F.3d 554, 557 (4th Cir. 1994). Accordingly, we
reverse the holding of the district court and deny the motion to
suppress.
IV.
We disagree with the Government’s position that Newland was
required to file a cross-appeal to assert his argument contesting
probable cause for his arrest. This argument is essentially an
alternate legal theory to affirm the district court’s suppression
order and would not expand his rights under that judgment. See
United States v. American Railway Express Co., 265 U.S. 425, 435-36
(1924). However, it is clear from the record that the presiding
judge was primarily concerned with the facts and events leading up
to the canine scan. (J.A. 149) At the suppression hearing, when
the parties attempted to explore the issue, the court expressed
that it was primarily concerned with the events before the canine
search and encouraged the parties to return to that issue. (J.A.
141). Thus, we think the record may be insufficient to carefully
scrutinize whether the troopers had probable cause to arrest Mr.
Newland and at least unclear whether the parties had a full
opportunity to introduce evidence on that issue. Walker v. True,
399 F.3d 315, 326 (4th Cir. 2005). The record is further unclear
regarding whether the district court actually ruled on the probable
cause issue because the transcript of the suppression hearing does
22
not reflect an application of the probable cause standard, or any
explicit ruling on the propriety of the arrest. Accordingly, we
remand the probable cause issue to the district court for further
development.
V.
For the reasons stated herein, we reverse the suppression
order and remand this case to the district court for further
proceedings not inconsistent with this opinion.
REVERSED AND REMANDED
23
GREGORY, Circuit Judge, concurring in part and dissenting in part:
Today the majority further erodes the requirement that a
police officer have reasonable suspicion of serious criminal
activity before prolonging a traffic stop to allow a canine unit to
arrive and conduct a sweep of the stopped vehicle. The majority
reaches its decision despite the fact that the factors relied upon
in support of the finding of reasonable suspicion, considered
separately and in their totality, do not exclude a majority of
innocent travelers. Because reasonable suspicion that Kevin
Newland was committing a serious crime did not exist, I would
affirm the ruling of the district court to exclude the evidence
that resulted from the canine sweep. I respectfully dissent from
the majority on this point.
I.
Because I believe that the Government’s failure to file
timely certification under 18 U.S.C. § 3731, when considered in
light of the relevant factors, should not result in dismissal of
the Government’s appeal, I concur in Part II of the majority’s
decision.
II.
Although I agree with the majority’s general account of the
facts, I believe that our inquiry must focus on the events only up
until the point that Newland’s stop was prolonged beyond the time
necessary to complete a traffic stop. Thus, I recount the facts
24
from the initial stop until the point I believe that the reasonable
suspicion inquiry must cease.
On September 21, 2005, Maryland State Trooper First Class
David McCarthy pulled over a car driven by Newland northbound on
Interstate 95 (“I-95”) in Cecil County, Maryland. Once the vehicle
pulled off to the right shoulder of the highway, Trooper McCarthy
approached the vehicle and advised Newland that he had been stopped
for speeding. Trooper McCarthy noticed that Newland had an open
cellular telephone, as well as additional cellular telephones in
the vehicle. For his protection, Trooper McCarthy requested that
Newland close the open cellular telephone. Trooper McCarthy then
requested Newland’s license and registration.
In response to Trooper McCarthy’s request, Newland provided a
U.S. Virgin Islands driver’s license in the name of “Kevin Kairo.”
Trooper Newland also indicated that the car was a rental vehicle
and provided McCarthy with the rental agreement. When Newland
handed both of these documents to Trooper McCarthy, his hands were
“shaking uncontrollably.” J.A. 170. Trooper McCarthy’s initial
observation about the rental agreement was that there was a
different address on the agreement than Newland had given as his
current address. Trooper McCarthy questioned Newland about his
address, and Newland “hesitated and eventually advised” that the
address on the agreement was his girlfriend’s address. J.A. 170.
Trooper McCarthy did not question Newland about the license or
about his destination, but returned to his patrol vehicle and
radioed for backup “for . . . safety” as he felt that the stop was
25
more than “just a routine traffic stop at [that] point.” J.A. 15.
One of the backup troopers that McCarthy requested was a canine
handler. Trooper McCarthy made such a request because “there was
certain things with my brief contact with the defendant that raised
my suspicions that something other than this traffic stop,
something else was occurring.” J.A. 15. When Trooper McCarthy
decided to wait for the arrival of a canine unit, a procedure that
the district court found was not routine in all speeding stops of
drivers going 74 miles per hour on I-95 in Cecil County, he
necessarily made the decision to prolong the traffic stop beyond
the time necessary to “request a driver’s license and vehicle
registration, run a computer check and issue a citation.” United
States v. Rusher, 966 F.2d 868, 878 (4th Cir. 1992). Although
Trooper McCarthy may have based his decision on his belief that
Newland’s license was obviously fraudulent, that reason was
rejected by the district court—a factual finding the majority does
not explicitly dispute. Thus, the decision to prolong the traffic
stop cannot be supported by Trooper McCarthy’s belief about the
authenticity of Newland’s license; reasonable suspicion must be
established through other factors.
After calling for back up, Trooper McCarthy ran a warrant
check on “Kevin Kairo,” which came back negative. While writing a
traffic warning for speeding, he examined the rental agreement
further and noted that the car was due back to the rental agency in
Silver Spring, Maryland four hours from the time of the stop. He
could have finished writing the ticket at this point, after the
26
warrant check had come back negative. The district court, however,
clearly found that he delayed finishing the ticket to allow Trooper
Christopher Conner and Sergeant Michael Lewis to arrive. See J.A.
146 (“So you have him turn over the driver’s license. He turns
over a rental agreement because it’s a rental car. And for some
reason, there’s then a delay and there’s a discussion and the next
thing we’ve got, a total of three other police officers arriving
and then we have a dog alert.”); id. at 158 (“For a period of time,
the defendant was kept in his car. Trooper McCarthy waited for
further backup. Ultimately, the record reflects and the Court
finds that Sergeant Lewis arrived, another police officer arrived
and the fourth police officer . . . arrived.”); id. (“With respect
to the vehicle registration that was provided, running a computer
check that was done in terms of a warrant check. There was clearly
time to issue a citation. There was simply no reasonable suspicion
of a serious crime.”). Accordingly, I believe that we must find
reasonable suspicion through the factors adduced by Trooper
McCarthy prior to the arrival of Trooper Conner and Sergeant Lewis
if we are to uphold the canine sweep. The conversation between
Trooper Conner and Newland, during which Newland discussed his
travel plans, cannot be considered as part of the inquiry because
it occurred after Trooper McCarthy prolonged the traffic stop
beyond the time allowed by Rusher.
27
III.
Although we review the existence vel non of reasonable
suspicion de novo, we give deference to the factual findings of the
district court and, importantly, to the inferences drawn from those
facts. See United States v. Arvizu, 534 U.S. 266, 277 (2002). In
addition, we review the facts in the light most favorable to
Newland, as the prevailing party in the suppression hearing. See
United States v. Holmes, 376 F.3d 270, 273 (4th Cir. 2004).
A.
In detailing the reasonable suspicion factors, the majority
begins by taking judicial notice that I-95 is a major thoroughfare
for narcotics trafficking. I believe that such a fact is
inappropriate for recognition through judicial notice; whether I-95
is a major drug trafficking route is a fact subject to reasonable
dispute. See Fed. R. Evid. 201(b). I-95 is an interstate highway
that runs between Houlton, Maine, and Miami, Florida, for a
distance of approximately two thousand miles. There is no doubt
that narcotics are trafficked on I-95; given its status as a major
north-south thoroughfare running the length of the eastern
seaboard, it would be stunning if narcotics were not among the
varied cargoes contained within vehicles traveling on the highway.
The exact magnitude of drug trafficking on I-95 in Cecil County,
Maryland, where Trooper McCarthy stopped Newland, is more complex,
however, than acknowledged by the majority’s sweeping statement
that I-95 is a major thoroughfare for narcotics trafficking.
28
Since January 1995, pursuant to a court order, the Maryland
State Police (“MSP”) have been required to keep data on traffic
stops.1 See Samuel R. Gross & Katherine Y. Barnes, Road Work:
Racial Profiling and Drug Interdiction on the Highway, 101 Mich. L.
Rev. 651, 658 (2002) (noting that the MSP must keep stop data
pursuant to settlement in Wilkins v. Md. State Police, No. CCB-93-
468 (D. Md. 1993)). From 1995 through June 2000, MSP data indicate
that the MSP made a total of 8,027 vehicle searches. See id. Of
these, 2,146—or roughly one quarter—were made in the I-95 corridor,
the 48.5 mile stretch of I-95 running from Baltimore to the
Delaware state line, a stretch that includes Cecil County. See id.
at 662. In 33.4% of the searches—one out of every three—during
this period, police found narcotics in the vehicle. Id. at 668
tbl. 6. On the I-95 corridor, narcotics were found in 37.3% of all
searches, while elsewhere in Maryland, narcotics were found in 32%
of searches. Id.At the outset, successful searches on I-95 resulted in
seizures of greater quantities of drugs than searches elsewhere in
Maryland. See id. at 697 tbl. 12. This is not surprising; even if
1
Statistical factfinding of this nature is generally the
prerogative of the district court. In this case, however, because
the majority reaches its conclusion through judicial notice, I
believe that statistics collected by the Maryland State Police on
the frequency of seized narcotics on I-95 cannot be ignored.
Furthermore, I believe these statistics, even given their potential
inaccuracies, to be a more reasoned way of approaching the issue of
whether I-95 is a drug corridor than our taking judicial notice on
the basis of broad and sometimes uncontested statements in our
prior decisions, given that neither party to this appeal addressed
the issue on brief or during oral argument.
29
I-95 were not a drug corridor, it is a major interstate highway.
One would expect seizures on a major interstate to be greater than
those on local roads. Of greater relevance to this case is the
difference in positive search rates of cars traveling northbound on
I-95 versus those traveling south. Overall, there were
approximately twice as many searches performed of vehicles
traveling southbound on I-95 than those traveling northbound. See
id. at 701 tbl. 15. Drugs were found in 41.5% of all searches on
southbound vehicles and 23.5% of all searches on southbound
vehicles revealed drugs in a quantity that would be consistent with
a charge of intent to distribute narcotics. See id. Contrariwise,
drugs were found in 32.7% of all northbound vehicles searched, only
.7% greater than the percent of vehicles searched not on the I-95
corridor that resulted in the discovery of drugs. In only 4.3% of
searches of northbound vehicles were a quantity of drugs found at
the intent-to-distribute level. Again, these percentages are more
consistent with vehicle searches outside of the corridor, where
3.4% of searches were of intent-to-distribute quantities. See id.at 697 tbl. 12. The authors of the study analyzing the MSP data
conclude that in the hunt for drugs on the corridor, “most of the
big trophies were bagged flying south.” Id. at 697. Thus, it is
southbound travel on the I-95 corridor which results in drug
seizures far and above locations in the rest of the state.
Northbound travelers appear to traffic in narcotics at a rate that
is generally equal to drivers on other Maryland roads. Cf. United
States v. Stewart-Poppelsdorf, 120 Fed. App’x 230, 233 (10th Cir.
30
2004) (considering, during reasonable suspicion inquiry, direction
that car was traveling on known drug route).
Statistics are not inherently reliable, and the MSP data
presented above are no exception. See Gross & Barnes at 678-87
(discussing potential errors and biases in the MSP data set).
Nevertheless, I present the data for two reasons: First, the
existence of data on the issue of drug trafficking on the specific,
relevant portion of I-95 northbound, collected by the law
enforcement agency that conducted the traffic stop at issue in the
instant case, demonstrates the inappropriateness of taking judicial
notice of such a fact.2 Second, the statistics indicate the
possibility that while traffic stops of travelers southbound on the
I-95 corridor may result in an abnormally high percentage of drug
2
I acknowledge that this Court has “take[n] judicial notice of
the fact that South America, in general, and Colombia, in
particular, are major sources of the cocaine sold and used in the
United States.” United States v. Munoz, 974 F.2d 493, 495 (4th
Cir. 1992). While I believe that Munoz should have sought to
support such a conclusion with verifiable evidence, the conclusion
accorded with then-available statistics. See, e.g., Drug
Enforcement Agency, U.S. Dep’t of Justice, The South American
Cocaine Trade: An “Industry” in Transition (1996),
http://purl.access.gpo.gov/GPO/LPS65912 (noting that in 1995, major
Colombian drug trafficking groups distributed most of the world’s
cocaine, made from cocaine base produced in Colombia, Bolivia, and
Peru). In this case, however, the blanket statement of I-95 as a
drug corridor does not fully accord with the statistics gathered by
the MSP. Thus, I find Munoz’s resort to judicial notice
distinguishable from the majority’s. Similarly, situations in
which courts take judicial notice of a specific neighborhood or
area as a high crime area are readily distinguishable from the
majority’s blanket assertion about a two-thousand mile long
highway. Cf. United States v. Evans, 994 F.2d 317, 322 n.1 (7th
Cir. 1993) (holding that trial court did not commit plain error in
taking judicial notice that alleged crime took place in high-crime
area).
31
seizures, northbound travelers such as Newland are statistically as
likely to be trafficking narcotics as any other driver on any other
Maryland road.
In the attempt to bolster its decision to take judicial notice
of I-95’s status as a drug corridor, the majority mischaracterizes
the record and previous decisions of this Court. The majority cites
Trooper McCarthy’s testimony that he is assigned to a team that
identifies possible “terrorists, drug traffickers, [and] gun
runners” on I-95. J.A. 37. The fact that the MSP has a drug
interdiction team that works on I-95 does not constitute an
acknowledgment that I-95 is a drug corridor. Similarly, in United
States v. Raymond, 152 F.3d 309 (4th Cir. 1998), the court did not
make any findings about I-95’s status as a drug corridor. The sole
discussion of I-95 in Raymond concerned the existence of a division
of the South Carolina Highway Patrol “whose members are trained
specifically to patrol I-95 looking for drug trafficking activity.”
Id. at 311. In United States v. Brugal, 209 F.3d 353, 360 (4th
Cir. 2000), one of the factors supporting reasonable suspicion was
that “Interstate 95 is a major drug thoroughfare,” but that factor
was undisputed by the parties. Thus, it is erroneous to cite
Brugal as holding that I-95 is a major drug thoroughfare. The
majority’s citation of United States v. Bodie, 983 F.2d 1058, 1992
WL 389290 (4th Cir. 1992), to support the conclusion that Virginia
“has acknowledged” (the import of which remains unclear to me) that
I-95 is a drug corridor is even more disingenuous. Bodie, an
unpublished decision, dealt not with the status of I-95, but with
32
Meadow Street in the Randolph area of Richmond, characterized as “a
heavy drug trafficking area.” Id. at *1. Bodie does not contain
any acknowledgments by Virginia, a district court in Virginia, or
this Court on I-95’s status.
Finally, by taking judicial notice of I-95’s status as a drug
corridor, the majority provides Newland with a concrete ground
supporting rehearing of this case. Federal Rule of Evidence 201(e)
provides that “[a] party is entitled upon timely request to an
opportunity to be heard as to the propriety of taking judicial
notice and the tenor of the matter noticed.” In this case, Newland
objected at the suppression hearing to judicial notice of the I-95-
corridor issue and has thus preserved the issue on appeal.
Normally, given that the issue of judicial notice and I-95 arose
during the suppression hearing, Newland should have addressed any
objections in his brief. In this case, however, the Government’s
opening brief omitted any mention of I-95’s status as a drug
corridor from the list of the reasonable suspicion factors.3
Accordingly, given that the majority relies on judicially noticing
I-95’s status as a drug corridor and that Newland has objected to
this and has not waived such objection, I believe that Rule 201(e)
affords Newland a right to be heard on this issue upon rehearing of
this case.
3
The Government’s list of factors supporting reasonable
suspicion included the fact that drug traffickers frequently
produce false identification when stopped on I-95, but no claim
that I-95 is a drug corridor.
33
B.
In addition to improperly taking judicial notice about I-95,
the majority bolsters the reasonable suspicion inquiry by
wrongfully considering Trooper McCarthy’s suspicions about
Newland’s license. Despite the district court’s factual finding
that Newland’s license was not obviously fraudulent, the majority
concludes that this finding was not an adverse credibility finding
with regard to Trooper McCarthy (and the other officers) and
appears to consider Newland’s license in the reasonable suspicion
inquiry. Insofar as the majority attempts to use the lack of an
adverse credibility finding as support that we may consider
Newland’s license in the reasonable suspicion inquiry, this
conclusion is patently incorrect. The district court concluded
that the license was not obviously fraudulent and excluded it from
the reasonable suspicion inquiry. While we review the existence of
reasonable suspicion de novo, we accept the factual findings of the
district court absent clear error and give due weight to the
inferences the district court drew from those facts. See United
States v. Foreman, 369 F.3d 776, 782 (4th Cir. 2004). The majority
does not argue that the district court clearly erred in concluding
that the license was not an obvious fake. Thus, our standard of
review precludes Trooper McCarthy’s doubts about the authenticity
of Newland’s license from the reasonable suspicion inquiry,
notwithstanding the majority’s attempt to reject, sub silentio, the
factual findings of the district court.
34
IV.
Assuming, arguendo, that I-95 is a “drug corridor,” the
factors supporting reasonable suspicion are: (1) Newland was
traveling on I-95; (2) his hands were shaking uncontrollably when
he produced his license and rental agreement; (3) he provided three
different addresses and hesitated before explaining why he used a
Maryland address on the rental agreement; (4) the car was due back
in Silver Spring four hours after the stop; and (5) Trooper
McCarthy noticed several cellular telephones in the vehicle. I do
not believe that these factors, in their totality, exclude a
majority of innocent travelers. They cannot, therefore, have given
Trooper McCarthy reasonable suspicion that Newland was committing
a serious crime.
A.
Although our reasonable suspicion inquiry examines the
totality of the circumstances, it is necessary to discuss the
individual factors relied upon by law enforcement, both to verify
their existence in the case at bar and for their probative value as
a link to illegal activity. See, e.g., United States v. Santos,
403 F.3d 1120, 1126-34 (10th Cir. 2005) (weighing each reasonable
suspicion factor individually and then the totality of the
circumstances); United States v. Boyce, 351 F.3d 1102, 1108-09
(11th Cir. 2003) (reviewing videotape of traffic stop to determine
that defendant was not nervous and then excluding that factor from
the reasonable suspicion inquiry). After such an inquiry, the
factors can then be examined in their totality. See Santos, 403
35
F.3d at 1134 (examining totality of the circumstances after
discussing factors in isolation). Although “reasonable suspicion
may exist even if ‘each of the articulated factors alone is
susceptible of innocent explanation,’” Foreman, 369 F.3d at 785(quoting Arvizu, 534 U.S. at 277), it is “impossible for a
combination of wholly innocent factors to combine into a suspicious
conglomeration unless there are concrete reasons for such an
interpretation.” Karnes v. Skrutski, 62 F.3d 485, 496 (3d Cir.
1995).
1. Travel on a known drug corridor4
That a traffic stop occurs on a known narcotics corridor
cannot support reasonable suspicion on its own and should be given
only limited weight in the reasonable suspicion inquiry as a whole.
Indeed, the status of a given highway as a drug corridor is
ubiquitous in Fourth Amendment jurisprudence. See, e.g., United
States v. Jenson, 462 F.3d 399, 405 (5th Cir. 2006) (I-20); United
States v. $49,000,000 in U.S. Currency, More or Less, 208 Fed.
App’x 651, 653 (10th Cir. 2006) (I-70); United States v. Blaylock,
421 F.3d 758, 763, 769 (8th Cir. 2005) (I-40); United States v.
Powell, 137 Fed. App’x 701, 702, 706 (5th Cir. 2005) (I-45
northbound); United States v. Vasquez, 298 F.3d 354, 355, 357 (5th
4
Despite my disagreement with the majority’s taking judicial
notice of I-95’s status as a major narcotics trafficking corridor
and the Government’s failure to include the same as a factor
supporting reasonable suspicion on brief to this Court, I include
this factor in the reasonable suspicion inquiry because I believe
that even with its inclusion, reasonable suspicion did not exist.
36
Cir. 2002) (per curiam) (I-35 and U.S. Highway 59); United States
v. Farmer, 215 F.3d 1338, 2000 WL 639474, at *1 (10th Cir. 2000)
(unpublished table disposition) (U.S. Highway 54); United States v.
Hernandez-Gonzales, 166 F.3d 1222, 1999 WL 41091, at *4 (10th Cir.
1999) (unpublished table disposition) (I-15); United States v.
Grillo, 40 F.3d 1245, 1994 WL 620795, at *2 (4th Cir. 1994)
(unpublished table disposition) (I-85); United States v. Pino, 855
F.2d 357, 358 (6th Cir. 1988)(I-24); United States v. Aleman, No.
CRIM.A 05-261, 2006 WL 91777, at *3 (E.D. La. 2006) (I-12); United
States v. Sugar, 322 F. Supp. 2d 85, 88 (D. Mass. 2004) (I-44);
State v. Kenyon, 651 N.W.3d 269, 271 (S.D. 2002) (I-29 from Sioux
Falls to Sioux City); O’Boyle v. State, 117 P.3d 401, 411 (Wyo.
2005) (I-80). Given that nearly every stretch of interstate is
considered a drug corridor, the fact that a stop occurred on any
such route is almost meaningless. See United States v. Wisniewksi,
358 F. Supp. 2d 1074, 1093 (D. Utah 2005) (“[T]raveling on a ‘drug
corridor’ cannot reasonably support a suspicion that the traveler
is carrying contraband. To so hold would give law enforcement
officers reasonable suspicion that every vehicle on every major—and
many minor—thoroughfares throughout this country was transporting
drugs.”), aff’d, 192 Fed. App’x 749 (10th Cir. 2006). Furthermore,
because of courts’ willingness to designate various cities and
states as “source” regions for narcotics, it is likely that most
major roads in this country could be considered drug corridors.
See Foreman, 369 F.3d at 795 (Gregory, J., concurring in part and
dissenting in part); United States v. Beck, 140 F.3d 1129, 1138 n.3
37
(8th Cir. 1998) (citing cases recognizing, inter alia, Colorado,
Texas, Florida, Arizona, the entire West Coast, New Jersey, New
York City, Phoenix, Fort Lauderdale, Houston, Chicago, and Dallas
as drug source cities or states); State v. Quirk, 842 N.E.2d 334,
343 (Ind. 2006) (“[C]onsidering the substantial number of states
and cities that have been designated as sources of drugs, a
motorist, in our highly mobile society, would be hard pressed not
to travel either from, to, or through a drug-source
jurisdiction.”).
2. Newland’s nervous behavior
Although this Court has recognized an individual’s nervousness
as a factor supporting reasonable suspicion, this factor should be
given only limited weight in the context of a traffic stop. See
United States v. Richardson, 385 F.3d 625, 630-31 (6th Cir. 2004)
(“[A]lthough nervousness has been considered in finding reasonable
suspicion in conjunction with other factors, it is an unreliable
indicator, especially in the context of a traffic stop. Many
citizens become nervous during a traffic stop, even when they have
nothing to fear.” (citations omitted)).
In this case, although Trooper McCarthy’s report mentions
Newland’s hands shaking uncontrollably, there was no testimony
adduced at the hearing on the motion to suppress as to the severity
of this reaction compared to that of other motorists whom Trooper
McCarthy had stopped or whether Newland’s nervousness dissipated
throughout the length of the traffic stop. Thus, while I agree
38
with the majority that we should not discount a law enforcement
officer’s ability to ascertain nervousness through comparison to
the behavior of other motorists, there is no such evidence that
Newland’s nervousness was severe in comparison to other motorists.
Accordingly, I would place little weight on Newland’s nervousness
in the reasonable suspicion inquiry. See Santos, 403 F.3d at 1127(“Only extraordinary and prolonged nervousness can weigh
significantly in the assessment of reasonable suspicion.”); United
States v. Williams, 271 F.3d 1262, 1268 (10th Cir. 2001) (noting
that mere nervousness is of limited significance in reasonable
suspicion inquiry, but that extreme and continued nervousness is
entitled to somewhat more weight).
3. The rental agreement and Newland’s addresses
The fact that Newland was driving a rental car that was due
back to the rental company in Silver Spring four hours after the
stop is a factor in the reasonable suspicion inquiry. This factor,
however, is entitled to minimal weight because there was no
testimony connecting the keeping of a rental car over the
contracted length and the commission of illegal activity. Nor was
there evidence about the financial consequences for Newland had he
returned the car late. See, e.g., Santos, 403 F.3d at 1129 (noting
lack of testimony that extending rental agreement would have
resulted in defendant’s paying penalty charges above normal rental
fees and that keeping car beyond rental period may “suggest that
the driver’s travel plans are uncertain or about to change, but,
39
without more, not that they are implausible”); Boyce, 351 F.3d at
1109 (noting that planning to return rental car late is not
equivalent to a suspicious travel plan and is not directly
indicative of criminal activity). In addition, the district court
found that even if Newland planned on returning the car late, this
evidence would not indicate that Newland was committing a crime.
This factual inference is entitled to deference. See Arvizu, 534
U.S. at 276-77 (giving deference to district court’s determination
that a reasonable officer would wonder why defendant’s children
were methodically waving out back window of minivan).
Newland’s having a different residence than the ones listed on
his driver’s license and the rental agreement, as well as his
hesitation when asked to explain the different addresses, is
relevant to the reasonable suspicion inquiry. Contrary to the
majority’s characterization, however, there was nothing
“conflicting” about the addresses that Newland provided to Trooper
McCarthy. Although the addresses were different, Newland did not
claim to live in the Virgin Islands or at his girlfriend’s house.
Cf. Richardson, 385 F.3d at 631 (“[T]he allegedly conflicting
explanations of their travel plans are not mutually exclusive; it
is entirely plausible that the group traveled both to see a doctor
and a lawyer.”). I do not dispute that the presentation of
multiple addresses is relevant to the reasonable suspicion inquiry
nor that such a fact, in combination with other factors, can
support a finding of reasonable suspicion. The different
addresses, however, did not raise questions about Newland’s
40
authorization to operate the vehicle and thus were not as probative
as those inconsistencies that would lead an officer to prolong a
stop in order to verify that the vehicle was not stolen. See J.A.
147 (“There’s no indication in the records before me that there was
any concern that [Newland] had stolen the car, that he didn’t have
the car legitimately.” (statement of district court)); cf.
Williams, 271 F.3d at 1265, 1270 (describing drug couriers’
practice of using third-party rental vehicles where defendant’s
rental agreement was in another’s name); United States v. Harris,
928 F.2d 1113, 1114-15 (11th Cir. 1991) (holding that defendant
with restricted license stopped in rental car raised question of
authorization to drive vehicle); State v. DeMarco, 952 P.2d 1276,
1280 (Kan. 1998) (rejecting existence of reasonable suspicion in
case where defendant had rental agreement indicating absent
renter).
4. Multiple cellular telephones
I agree with the majority that multiple cellular telephones
are not suspicious in and of themselves, but may be considered as
part of the totality of the circumstances in the reasonable
suspicion inquiry. Unlike other communications devices that
indicate communication with individuals only within a short range,
and thus are particularly prevalent in drug trafficking operations,
cellular telephones are commonplace in today’s society and thus
their presence has only limited probative value. Cf. United States
v. Maldonado, 472 F.3d 388, 398 (5th Cir. 2006) (“[T]estimony
41
indicated that both vehicles had two-way radios typically used by
drug traffickers.”); Williams, 271 F.3d at 1262 (discussing
presence of two-way, short-range radio as indicating that driver
intended to stay in contact with someone in close proximity to the
car and the use of these devices as a common tactic of drug
smuggling teams); Cresswell v. State, 564 So.2d 480, 483 (Fla.
1990) (noting presence of CB radio in defendant’s car).
B.
“While law enforcement officers certainly should be permitted
to rely on their experience and expertise in detecting criminal
behavior, there is a point at which experience becomes only an
unparticularized suspicion or hunch.” United States v. Lebrun, 261
F.3d 731, 735 (8th Cir. 2001) (Tunheim, J., dissenting) (internal
quotation marks omitted). In this case, I believe that the
totality of the circumstances did not constitute reasonable
suspicion that Newland was engaged in illegal activity. There are
multiple factors supporting the existence of reasonable suspicion,
but, even when evaluated together, these factors do not rise to the
level of suspicion that we require because they do not serve to
eliminate the majority of innocent travelers.
Unlike in Brugal and Foreman, none of the factors supporting
reasonable suspicion, even when taken together, provide a basis to
conclude that Newland was engaged in drug trafficking. For
example, in Brugal, while the defendants were traveling on I-95,
they also exited the interstate at a “dead exit” to avoid a
supposed drug checkpoint further ahead on the highway. 209 F.3d at
42
355. That behavior, in conjunction with inconsistent travel plans
and other factors, supported a conclusion of reasonable suspicion.
See id. Similarly, in Foreman, travel on a drug corridor, in
conjunction with unusual travel plans and a factor directly linked
to drug trafficking (the presence of multiple air fresheners
hanging from a rearview mirror) created reasonable suspicion. See
369 F.3d at 784-85. In this case, there is no factor—other than
Newland’s driving on a drug corridor, which I believe is entitled
to minimal weight—that links Newland with drug trafficking.
Compare Richardson, 385 F.3d at 630-631 (finding lack of reasonable
suspicion where defendants exhibited nervousness, gave conflicting
travel plans, and one defendant moved to the driver’s seat of the
car while the officer questioned another defendant), Boyce, 351
F.3d at 1108-10 (finding lack of reasonable suspicion where
defendant was driving rental car on known drug corridor, told
officer he planned to return car two days late, and videotape of
stop did not support police officer’s contention that defendant
displayed signs of nervousness), Beck, 140 F.3d at 1137 (finding
lack of reasonable suspicion where defendant was driving rental car
rented by third party, displayed signs of nervousness, was coming
from drug source state to drug demand state, had fast food trash on
floor of car, and officer did not believe defendant’s explanation
for trip), and DeMarco, 952 P.2d at 1280, 1285 (finding lack of
reasonable suspicion where defendants were traveling in rental
vehicle, on drug corridor, and gave inconsistent travel plans and
were nervous), with United States v. Bradford, 423 F.3d 1149, 1157-
43
58 (10th Cir. 2005) (finding reasonable suspicion where defendant
exhibited “numerous physical manifestations of fright,” gave
evasive and conflicting answers to basic questions, related travel
plans that defied common sense, was driving rental car that
contained luggage and fast-food wrappers, and second car exhibiting
“chase car” behavior was spotted during stop), Santos, 403 F.3d at
1133-34 (finding reasonable suspicion where defendant driving
rental car on drug corridor displayed signs of nervousness, had
inconsistent travel plans, could not answer basic questions, and
wrongfully denied having criminal record), Williams, 271 F.3d at
1271 (finding reasonable suspicion where defendant exhibited
extreme nervousness, had a short-range two-way radio, and was
driving a rental car registered in another’s name), and Cresswell,
564 So.2d at 481 (finding reasonable suspicion where defendant was
driving car registered to someone else, with Maine plates, but New
York inspection sticker, on drug corridor, and where defendant
exhibited signs of nervousness, the car contained a CB radio, as
well as items in the backseat normally found in trunk). Taking
Newland’s behaviors in conjunction, there is no concrete basis upon
which to justify the elevation of those innocent factors into the
existence of reasonable suspicion.
In the ordinary case, we give due weight to factual inferences
drawn by local law enforcement officers. Ornelas v. United States,
517 U.S. 690, 699 (1996). In this case, however, there was no
testimony from Trooper McCarthy that reasonable suspicion was
established solely from the factors upon which we must rely on this
44
appeal. Trooper McCarthy testified that his suspicion was based on
Newland’s license—a consideration that the district court rejected.
Furthermore, Trooper McCarthy’s testimony did not provide
sufficient links between the factors supporting reasonable
suspicion and the commission of a serious crime by Newland. For
example, though Trooper McCarthy noted in his report that Newland’s
hands shook when he provided his license and the rental agreement,
he did not testify as to whether Newland appeared exceptionally
nervous in comparison to other motorists or whether Newland’s
nervousness dissipated during the course of the stop. Similarly,
Trooper McCarthy did not testify about any link between cellular
telephones and drug trafficking or inquire as to the consequences
if Newland returned the rental car late.
On appeal, the Government has focused on establishing that
Newland’s license was obviously fraudulent; it has offered no
analysis as to why, accepting the factual findings of the district
court, reasonable suspicion existed. Thus, neither Trooper
McCarthy’s testimony, nor the Government, provide any cognizable
reason why the factors discussed above, innocent in their
isolation, become sufficient to support reasonable suspicion when
they are taken in their entirety.
In sum, reviewing the facts in the light most favorable to
Newland, as we must, I do not believe that reasonable suspicion
existed. The totality of the circumstances did not support the
conclusion that Newland was committing a serious crime, given that
none of the factors provided a direct link to drug trafficking and
45
there is no evidence as to why the totality of the circumstances
indicated that Newland was committing a serious crime. Because the
factors would not exclude a majority of innocent travelers, Trooper
McCarthy wrongfully prolonged the traffic stop to allow the canine
unit to arrive. I would thus affirm the district court and
suppress the evidence resulting from the canine sweep of Newland’s
vehicle.
V.
With all due respect, the majority undermines factual findings
of the district court, engages in extra-record “factfinding” that
is not warranted in this instance, and ignores that the totality of
the circumstances did not provide a link to serious criminal
activity, in order to uphold the canine sweep of Newland’s vehicle.
Viewing the facts in the light most favorable to Newland and
crediting the district court’s findings of facts, as well as
inferences drawn from those facts, there was no reasonable
suspicion that Newland was committing a serious crime. Thus, I
believe that the canine sweep was improper under our precedent and
would affirm the ruling of the district court. Accordingly, I
respectfully dissent.
46