United States v. Foreman ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 03-4375
RONALD CORTEZ FOREMAN,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca Beach Smith, District Judge.
(CR-02-210)
Argued: December 5, 2003
Decided: June 4, 2004
Before LUTTIG and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded with instructions by published opinion. Senior
Judge Hamilton wrote the opinion, in which Judge Luttig joined.
Judge Gregory wrote a separate opinion concurring in part and dis-
senting in part.
COUNSEL
ARGUED: Brian Lee Whisler, Assistant United States Attorney,
Norfolk, Virginia, for Appellant. Walter Bruce Dalton, Assistant Fed-
eral Public Defender, Norfolk, Virginia, for Appellee. ON BRIEF:
Paul J. McNulty, United States Attorney, Norfolk, Virginia, for
2 UNITED STATES v. FOREMAN
Appellant. Frank W. Dunham, Jr., Federal Public Defender, Frances
H. Pratt, Research and Writing Attorney, Norfolk, Virginia, for
Appellee.
OPINION
HAMILTON, Senior Circuit Judge:
The United States appeals from a district court order granting Ron-
ald Cortez Foreman’s motion to suppress evidence seized following
the search of his Mercury Moutaineer on U.S. Route 13 (Route 13)
in Northhampton County, Virginia on June 5, 2002. For the reasons
stated below, we vacate the district court’s order and remand the case
to the district court with instructions to enter an order denying Fore-
man’s motion to suppress.
I
A
At approximately 7:00 a.m. on June 5, 2002, Virginia State Police
Trooper C.S. Wade (Trooper Wade) was working a narcotics interdic-
tion assignment on the southbound side of Route 13 in Northhampton
County, Virginia, just north of the Chesapeake Bay Bridge.1 At that
1
Despite Judge Gregory’s assertions to the contrary, the facts, as we
recite them, are not in dispute for purposes of this appeal. Federal Rule
of Appellate Procedure 28(a)(7) obligates an appellant to include in his
opening brief "a statement of facts relevant to the issues submitted for
review with appropriate references to the record . . . ." Furthermore,
although an appellee need only include a statement of facts in his respon-
sive brief if he is dissatisfied with the appellant’s version, if the appellee
chooses to include a statement of facts in his responsive brief, such state-
ment must conform with Rule 28(a)(7). Fed. R. App. P. 28(b).
Here, Foreman’s statement of facts in his responsive brief very closely
tracks that of the government, including reciting many sentences nearly
verbatim. Pursuant to Federal Rule of Appellate Procedure 28(b), we
must consider the facts that Foreman included in his statement of the
UNITED STATES v. FOREMAN 3
time, Trooper Wade observed Ronald Cortez Foreman (Foreman) in
a "tense posture" driving a 1997 Mercury Mountaineer, holding the
steering wheel with both hands and staring straight ahead as he passed
Trooper Wade on Route 13. After following Foreman in his patrol
car, Trooper Wade observed two traffic infractions: (1) excessive
speed and (2) several air fresheners, hanging from the rearview mir-
ror, obstructing the driver’s windshield view, each in violation of Vir-
ginia state law. In response to Trooper Wade’s activation of his
emergency lights, Foreman drove his vehicle partially off the road
and came to a stop.
Immediately upon approaching Foreman, Trooper Wade observed
Foreman’s pulse beating through his shirt, his hands visibly shaking,
and the carotid artery on his neck throbbing more noticeably than the
"thousands of people" that Trooper Wade had stopped in the past.
(J.A. 32). Trooper Wade observed a fold of currency in the center
console of Foreman’s vehicle, but did not see any luggage.2
facts as the facts he deems "relevant to the issues submitted for review
. . . ." Fed. R. App. P. 28(a)(7). With the exception of a few minor
details, the facts, as we recite them, appear in Foreman’s statement of
facts, and the ones that do not are either ancillary to our legal analysis
or are otherwise undisputed. More importantly, the undisputed facts, as
we recite them, unquestionably are supported by the record before us.
Moreover, with all due respect to my dissenting colleague, Foreman’s
responsive brief can in no way reasonably be read to contest the facts
that he had already deemed relevant to the issues submitted for review
in his statement of facts. For example, the pages of Foreman’s brief
which Judge Gregory cites as support that Foreman disputes the veracity
of Trooper Wade’s testimony regarding Foreman exhibiting signs of ner-
vousness do not support such a proposition. Rather, in those pages, Fore-
man very clearly accepts Trooper Wade’s description of him as nervous,
as well as the details of that behavior, and only presents arguments con-
cerning the legal significance of his exhibited nervousness.
2
In an attempt to bolster his dissenting view that reasonable suspicion
did not exist to support the brief detention of Foreman and his vehicle
in order to conduct the drug dog sniff of the vehicle, Judge Gregory takes
time in Part II.A.3 of his dissent to emphasize that the district court
found questionable Trooper Wade’s testimony that he did not see any
4 UNITED STATES v. FOREMAN
Foreman accompanied Trooper Wade to his patrol car and sat in
the passenger seat while Trooper Wade conducted a driver’s license
check. While Trooper Wade was waiting for the results of the driver’s
license check, Trooper R.M. Harcourt, Jr. (Trooper Harcourt) arrived
on the scene with his drug dog.3 During the driver’s license check,
Trooper Wade asked Foreman about his destination. Foreman indi-
cated that he was returning from a one-day trip to New York City to
assist his brother who had been evicted on the evening of June 4,
2002. When Trooper Wade spoke of the problem of gun and drug
smuggling on Route 13, he observed that Foreman’s breathing
became heavier and the pulsating of his carotid artery became more
obvious. After inquiring about weapons in his vehicle, Trooper Wade
inquired about narcotics in the vehicle, to which Foreman responded
in the negative. Foreman also indicated that the only money he had
was that already seen by Trooper Wade in the center console of the
Mercury Mountaineer.
When Trooper Wade ascertained that Foreman’s driver’s license
and registration were in order, he gave him a verbal warning regard-
ing the speeding and windshield obstruction infractions. Trooper
Wade returned Foreman’s driver’s license and registration, after
which Foreman thanked Trooper Wade for the warnings and gave him
a sweaty handshake. After the handshake, Foreman exited Trooper
Wade’s patrol car and stated that "he was going to take the air fre-
luggage in Foreman’s vehicle during the initial stage of the stop.
Whether the district court found this portion of Trooper Wade’s testi-
mony questionable is of no moment in the present appeal. First, in Fore-
man’s statement of facts, he states affirmatively that "[t]he trooper . . .
did not see any luggage at that point." (Foreman’s Responsive Br. at 4).
Second, we in no way rely on Trooper Wade’s testimony regarding the
lack of luggage for our holding that reasonable suspicion existed to sup-
port the brief seizure of Foreman and his vehicle in order to conduct the
drug dog sniff. Similarly, we do not rely upon Trooper Wade’s testimony
that he observed a fold of currency in Foreman’s center console as part
of our reasonable suspicion analysis. Thus, Part II.A.4. of Judge Grego-
ry’s dissent has no bite.
3
At some early point in Trooper Wade’s encounter with Foreman,
Trooper Wade called for back-up in the form of a drug dog.
UNITED STATES v. FOREMAN 5
sheners down right then." (J.A. 37). At this point, Foreman ostensibly
was free to leave.
The following excerpt from the record is Trooper Wade’s testi-
mony at the suppression hearing regarding what happened next:
After he stepped out of the vehicle, which led me to
believe that he was leaving, I asked him if I could ask him
some more questions, or ask him some questions, and he
stated, sure. I then again informed him of the problems of
gun and drug smuggling on Route 13 and asked him if I
could search his car, and Mr. Foreman initially stated, yeah,
and then immediately after that stated, well, no, I don’t want
anybody searching my car.
(J.A. 37).4
As soon as Foreman indicated that he would not consent to the
drug dog sniff, Trooper Wade signaled Trooper Harcourt to "run his
dog around the exterior of the vehicle." (J.A. 39). Trooper Wade then
advised Foreman that he would have the drug dog that was on the
scene run around the outside of the vehicle. Foreman nodded and
stepped back.
Trooper Harcourt then deployed his drug dog on the exterior of
Foreman’s vehicle and the drug dog alerted. The parties agree that the
duration of time from the initial stop until the drug dog alerted to
Foreman’s vehicle was approximately ten minutes.
4
At the suppression hearing, Trooper Wade explained that, when a
driver is suspected of trafficking drugs, the preferable procedure at a traf-
fic stop is to obtain the driver’s consent to search as opposed to ordering
a drug dog sniff. To that end, Trooper Wade testified that, at a traffic
stop, he often returns the driver’s paperwork and allows him to leave his
patrol car and start walking away. At that point, when the circumstances
of the stop are less (or non) custodial, Trooper Wade asks for the driver’s
consent to search the vehicle. If the individual does not consent to the
drug dog sniff, Trooper Wade will order one if he concludes he has rea-
sonable suspicion to do so.
6 UNITED STATES v. FOREMAN
During the ensuing search of the vehicle, the law enforcement offi-
cers recovered $800 in cash, approximately one kilogram of cocaine,
and approximately 10.5 grams of cocaine base (crack). After the
drugs were discovered, Foreman was arrested.
B
On November 12, 2002, in a one-count indictment, Foreman was
charged by a federal grand jury in the Eastern District of Virginia
with possession of cocaine with intent to distribute, 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(iii). On December 17, 2002, Foreman filed
a motion to suppress. On January 16, 2003, the district court held a
hearing, in which only Trooper Wade and Trooper Harcourt testified.
At the hearing, a videotape and its partial audio-track recording of the
stop was admitted into evidence.5
On January 24, 2003, a superseding indictment for Foreman was
returned, adding a count of possession with intent to distribute crack,
21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). On April 1, 2003, the dis-
trict court ruled on Foreman’s suppression motion from the bench,
granting the motion to suppress. On April 15, 2003, the United States
filed a motion for reconsideration, which the district court denied in
a written opinion and order filed on June 6, 2003. The United States
filed a timely notice of appeal.
II
On appeal, the United States contends that the district court erred
when it granted Foreman’s motion to suppress. According to the
United States, the seizure of the currency, cocaine, and crack from
Foreman’s vehicle did not violate Foreman’s Fourth Amendment
rights. Foreman counters by arguing that the seizure did violate his
Fourth Amendment rights.
5
Presumably because neither party deemed the content of the videotape
with its partial audio-track recording relevant to the issues on appeal, nei-
ther party designated such material nor a copy of such material as part
of the joint appendix pursuant to Federal Rule of Appellate Procedure 30.
UNITED STATES v. FOREMAN 7
A
The Fourth Amendment guarantees "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreason-
able searches and seizures." U.S. Const. amend. IV. Temporary deten-
tion of an individual during the stop of an automobile by the police,
even if only for a brief period and for a limited purpose, constitutes
a seizure of a person within the meaning of the Fourth Amendment.
Delaware v. Prouse, 440 U.S. 648, 653 (1979).
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court first held
that the Fourth Amendment requires that a brief investigatory stop of
an individual be supported by reasonable suspicion. The Terry reason-
able suspicion standard requires an officer to have a reasonable suspi-
cion that criminal activity is afoot. Id. at 30.
Following Terry, the law has become well established that during
a routine traffic stop, an officer may request a driver’s license and
vehicle registration, run a computer check, and issue a citation.
United States v. Rusher, 966 F.2d 868, 876-77 (4th Cir. 1992). Any
further investigative detention, however, is beyond the scope of the
Terry stop and, therefore, illegal unless the officer has a reasonable
suspicion of other criminal activity or the individual consents to the
further detention. Id.; see also United States v. Sullivan, 138 F.3d 126,
131 (4th Cir. 1998). The Supreme Court has ruled that a drug dog
sniff is not a search within the meaning of the Fourth Amendment.
United States v. Place, 462 U.S. 696, 706-07 (1983). However, in
order to perform the sniff, there must be a seizure of the vehicle and,
therefore, the person, requiring either consent to be detained or rea-
sonable suspicion. United States v. McFarley, 991 F.2d 1188, 1191
(4th Cir. 1993).
The standard of "reasonable suspicion" as used to evaluate the con-
stitutionality of a Terry stop is not readily, or even usefully, reduced
to a neat set of legal rules, but, rather, entails common sense, nontech-
nical conceptions that deal with factual and practical considerations
of everyday life on which reasonable and prudent persons, not legal
technicians, act. Ornelas v. United States, 517 U.S. 690, 695-96
(1996). The reasonable suspicion standard, like the probable cause
8 UNITED STATES v. FOREMAN
standard, is a fluid concept which takes its substantive content from
the particular context in which the standard is being assessed. Id.
The Supreme Court has recognized that factors consistent with
innocent travel can, when taken together, give rise to reasonable sus-
picion. United States v. Sokolow, 490 U.S. 1, 9 (1989) ("[A]ny one
of these factors is not by itself proof of any illegal conduct and is
quite consistent with innocent travel. But we think taken together they
amount to reasonable suspicion."). Thus, Sokolow teaches us that it is
not enough that Trooper Wade could articulate factors underlying his
decision to order the drug dog sniff if Trooper Wade’s articulated fac-
tors are not probative of behavior in which few innocent people
would engage. The articulated factors together must serve to eliminate
a substantial portion of innocent travelers before the requirement of
reasonable suspicion will be satisfied.
Notably, the reasonable suspicion standard "is a less demanding
standard than probable cause and requires a showing considerably
less than preponderance of the evidence." Wardlow v. Illinois, 528
U.S. 119, 123 (2000). However, the Terry reasonable suspicion stan-
dard does require "a minimal level of objective justification" for the
police action. Id.
Because reasonable suspicion is an objective test, we examine the
facts within the knowledge of Trooper Wade to determine the pres-
ence or nonexistence of reasonable suspicion; we do not examine the
subjective beliefs of Trooper Wade to determine whether he thought
that the facts constituted reasonable suspicion. United States v. Gray,
137 F.3d 765, 769 (4th Cir. 1998). Additionally, it must be noted that,
because the Terry reasonable suspicion standard is a commonsensical
proposition, "[c]ourts are not remiss in crediting the practical experi-
ence 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 determination of whether given facts amount to reasonable
suspicion vel non is a legal one, which we review de novo. Ornelas,
517 U.S. at 699. Of course, the factual determinations themselves are
given deference. "[A] reviewing court should take care both to review
findings of historical fact only for clear error and to give due weight
UNITED STATES v. FOREMAN 9
to inferences drawn from those facts by resident judges and local law
enforcement officers." Id.
B
In its decision, the district court observed that, once Trooper Wade
returned Foreman’s driver’s license and registration, gave Foreman
verbal warnings concerning his traffic infractions, and ostensibly
allowed Foreman to leave, the lawful seizure engendered by the traf-
fic stop ended.6 According to the district court, once the lawful sei-
zure occasioned by the traffic stop ended, Foreman was seized a
second time by Trooper Wade, this time to conduct the drug dog sniff.
In determining whether this second seizure was permissible, the dis-
trict court observed that Trooper Wade, like the court itself, was not
entitled to rely on any factors tending to show reasonable suspicion
that occurred prior to the termination of the traffic stop; rather, the
district court concluded that Trooper Wade, like the court itself, was
required to look for "consent" or "additional suspicion" that could jus-
tify a second seizure. (J.A. 136). Concluding that there was no con-
sent and no additional suspicion occurring after the traffic stop ended,
the district court held that the second seizure of Foreman to permit
time to conduct a drug dog sniff violated Foreman’s Fourth Amend-
ment rights.
C
The parties agree that Foreman did not consent to the drug dog
sniff. Consequently, the Fourth Amendment issue in the case turns on
whether Trooper Wade had reasonable suspicion to order the drug
dog sniff. Before we can address this question, though, we must
6
In its decision, the district court concluded that Trooper Wade’s initial
traffic stop of Foreman was lawful because Trooper Wade had objective
reasons for executing the stop: "Foreman was speeding, and there were
windshield obstructions in violation of the Virginia Code." (J.A. 130).
Neither party takes issue with this conclusion reached by the district
court. Additionally, we note that while Judge Gregory, in dissent, makes
much to do about a "pretexual stop" by Trooper Wade, he concedes, as
he must, that "the legality of the initial stop is not in dispute." Post at 17
n.3.
10 UNITED STATES v. FOREMAN
address a more abstract analytical question raised by the district
court’s analysis in this case. That is, we must address whether it was
appropriate for the district court, in determining whether there was
reasonable suspicion for the drug dog sniff, to ignore all of the events
which occurred before the time Trooper Wade returned Foreman’s
paperwork and allowed him to exit his patrol car, i.e., ostensibly
allowing Foreman to leave.
The district court did not cite any case law supporting the proposi-
tion that it was required to ignore all of the events which occurred
before the time Trooper Wade ostensibly allowed Foreman to leave.
We are aware of none. In fact, the Tenth Circuit has held that the ter-
mination of a traffic stop does not immediately negate the objectively
reasonable suspicions developed by a police officer during a traffic
stop. United States v. Williams, 271 F.3d 1262, 1271 (10th Cir. 2001),
cert. denied, 535 U.S. 1019 (2002).
In Williams, the defendant was stopped for speeding by a Kansas
Highway Patrol Trooper. Id. at 1264. In the mind of the trooper, sev-
eral factors during the stop added up to reasonable suspicion that the
defendant was involved in drug trafficking. First, the trooper noticed
at the outset of the stop that the defendant exhibited extreme nervous-
ness, which never dissipated throughout the entire stop. Id. at 1265.
Second, the trooper noticed a walkie-talkie type radio commonly used
by people traveling in tandem on the front passenger seat. Id. Third,
in lieu of a vehicle registration card, the defendant handed the trooper
a rental agreement which bore a different name than the one on the
defendant’s valid driver’s license. Id. Finally, the defendant’s travel
plans, as articulated by the defendant to the trooper, were unusual. Id.
Despite the trooper’s suspicions of criminal activity, the trooper
returned the license and rental agreement to the defendant. Id. "In
addition, the [trooper] said something to the effect of, ‘Thanks a lot.
We’ll see you.’" Id. However, the trooper then asked the defendant’s
permission to ask him a few questions. Id. The defendant agreed. Id.
The trooper first asked whether the defendant was carrying any
contraband or large amounts of cash to which the defendant replied
no. Id. The trooper then asked the defendant if he could search the
vehicle. Id. The defendant refused. Id. At that point, the trooper
UNITED STATES v. FOREMAN 11
informed the defendant that he would detain him until a canine unit
could arrive at the scene and sniff the outside of the vehicle. Id.
Approximately fifteen minutes from the time of the initial stop, the
canine unit arrived and eventually alerted to the trunk area of the
vehicle. Id. "After obtaining the keys and opening the trunk, the
[trooper] discovered several large bales of marijuana." Id.
Following his arrest, the defendant moved to suppress the mari-
juana as evidence. The district court held that the trooper possessed
sufficient reasonable suspicion to further detain the defendant for the
purpose of the drug dog sniff. Id. at 1266. In so holding, the district
court relied upon factors that occurred prior to the trooper returning
the defendant’s travel documents and verbally indicating that he was
free to leave. Id.
On appeal before the Tenth Circuit, the defendant challenged the
denial of his motion to suppress, inter alia, on the ground that the
trooper’s return of his travel documents and verbal indication that he
was free to leave nullified any of the suspicion that had developed
throughout the stop. Id. at 1270-71. In rejecting the defendant’s argu-
ment, the Tenth Circuit stated:
Mr. Williams fails to cite any case, nor can we find any,
suggesting that the return of such documentation negates an
officer’s objectively reasonable suspicions developed during
a traffic stop. Although the record indicates that the
[trooper] subjectively intended that Mr. Williams was free
to go, the relevant inquiry in this case is based on the objec-
tive facts known to the [trooper], not upon the [trooper’s]
subjective state of mind. . . . Whether the [trooper] never
intended to release Mr. Williams or whether he simply
changed his mind after the consensual questioning does not
alter our analysis if the [trooper] already had sufficient rea-
sonable suspicion to detain Mr. Williams for the purpose of
the canine drug search. We therefore conclude that the
[trooper’s] indication to Mr. Williams that he was free to
leave bears no significance in our determination of whether
the [trooper] had reasonable suspicion to detain Mr. Wil-
liams.
12 UNITED STATES v. FOREMAN
Id. at 1271. We find the Williams decision persuasive and conclude
that the district court should have examined all of the circumstances
surrounding Foreman’s encounter with Trooper Wade in determining
whether there was reasonable suspicion for the drug dog sniff.7
D
The remaining question in the case is whether Trooper Wade had
reasonable suspicion to order the drug dog sniff. The United States
argues that the following factors, when taken together, constitute rea-
sonable, articulable suspicion for the brief, additional detention neces-
sary to conduct the drug dog sniff of Foreman’s vehicle: (1)
Foreman’s unusual travel explanation that he traveled from Norfolk,
Virginia to New York City (a major source city) and back (approxi-
mately seven hours each way) within a single day to visit his brother
who was purportedly evicted; (2) Foreman’s tense posture while driv-
ing; (3) physical signs of extreme nervousness on the part of Foreman
throughout the stop (e.g., heavy breathing, heavy sweating, and pul-
sating of the carotid artery), which physical signs of nervousness
grew worse when Trooper Wade raised the issue of drug smuggling
on Route 13 where the stop occurred; (4) the multiple air fresheners
hanging from Foreman’s rearview mirror that are often used to mask
7
We also note that the district court’s chosen analytical path was obvi-
ously influenced in part by its distaste of Trooper Wade’s law enforce-
ment technique of releasing an individual following a traffic stop in order
to aid in obtaining the individual’s voluntary consent for a drug dog sniff
of his vehicle. According to the district court, Trooper Wade could not
play this "cat and mouse game—now you’re free to go, now you’re not"
because it did "not advance the interests of justice," nor did it "preserve
those rights promised under the Fourth Amendment." (J.A. 135-36). For
obvious reasons, the district court was not at liberty to ignore all of the
events which occurred before the time Trooper Wade ostensibly allowed
Foreman to leave because Trooper Wade employed a minor act of trick-
ery. Indeed, the "use of trickery is an accepted tool of criminal law
enforcement." Alexander v. DeAngelo, 329 F.3d 912, 917 (7th Cir.
2003); see also United States v. Orso, 266 F.3d 1030, 1039 (9th Cir.
2001) (en banc) (false statement that witness had seen him with a gun
was not coercive), cert. denied, 537 U.S. 828 (2002); Lucero v. Kerby,
133 F.3d 1299, 1311 (10th Cir. 1998) (lie regarding fingerprint evi-
dence).
UNITED STATES v. FOREMAN 13
8
the smell of narcotics; and (5) Trooper Wade’s experience with drug
interdiction that Route 13 had become a frequented corridor for illegal
narcotics flowing from New York City and other points north to the
Tidewater area of Southeastern Virginia.
Foreman responds by offering innocent explanations for each of
the factors relied upon by the United States. Notably, Foreman con-
cedes that his explanation of his trip to New York City is "unusual."
Appellee’s Br. at 17. He, nonetheless, discounts its importance on the
basis that his explanation "is not inherently implausible." Id.
In our opinion, the factors cited by the United States eliminate a
substantial portion of innocent travelers and, therefore, amount to rea-
sonable suspicion that Foreman was engaged in drug trafficking. It is
important to remember that, in making our reasonable suspicion
determination, we must examine the totality of the circumstances,
meaning that reasonable suspicion may exist even if "each of the[ ]
factors alone is susceptible of innocent explanation." United States v.
Arvizu, 534 U.S. 266, 277 (2002). Thus, to begin with, the vast major-
ity of innocent travelers do not and would not drive seven hours to
New York City, stay only a few hours, and return. This highly
unusual travel plan coupled with the following factors, when viewed
8
Foreman claims the United States waived its right to rely on the pres-
ence of the air fresheners in his vehicle by failing to rely on this factor
below. Foreman is incorrect on this point. The record shows that the
United States did indeed rely below on the presence of the air fresheners
in Foreman’s vehicle as one of the factors adding up to reasonable suspi-
cion to seize briefly Foreman and his vehicle in order to conduct the drug
dog sniff of Foreman’s vehicle. (J.A. 124).
The fact that the government did so in its motion for reconsideration
of the district court’s suppression order as opposed to at the suppression
hearing itself is of no moment because the district court obviously
excused any default on behalf of the government when it addressed the
government’s arguments head-on in ruling on the motion for reconsider-
ation. Cf. Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th
Cir. 1999) ("[A]n issue presented for the first time in a motion pursuant
to Federal Rule of Civil Procedure 59(e) generally is not timely raised;
accordingly, such an issue is not preserved for appellate review unless
the district court exercises its discretion to excuse the party’s lack of
timeliness and consider[s] the issue.").
14 UNITED STATES v. FOREMAN
objectively, are sufficient to create a reasonable suspicion that crimi-
nal activity is afoot: (1) New York City is a known source city for
illegal narcotics, United States v. Bueno, 21 F.3d 120, 121 (6th Cir.
1994) (New York City "is a known source city for narcotics."); (2)
Foreman had several air fresheners commonly used to mask the smell
of narcotics hanging from his rearview mirror, United States v. Foley,
206 F.2d 802, 804, 806 (8th Cir. 2000) (air freshener hanging from
rearview mirror added to reasonable suspicion determination of drug
trafficking because air fresheners are often used to mask the smell of
narcotics); (3) Foreman was exceptionally nervous and became even
more so when Trooper Wade raised the issue of drug trafficking on
Route 13, United States v. LeBrun, 261 F.3d 731, 734 (8th Cir. 2001)
(defendants’ exceptional nervousness during traffic stop (e.g., sweat-
ing profusely on a cold day, hands shaking) and increased agitation
when asked routine questions by officer about travel plans and pur-
pose of trip added to reasonable suspicion determination of drug traf-
ficking); and (4) Trooper Wade’s experience with drug interdiction
that Route 13 had become a frequented corridor for illegal narcotics
flowing from New York City and other points north to the Tidewater
area of Southeastern Virginia, United States v. Brignoni-Ponce, 422
U.S. 873, 884 (1975) ("characteristics of the area in which [the offi-
cers making stop] encounter a vehicle" is significant factor in formu-
lation of reasonable suspicion); Lender, 985 F.2d at 154 ("Courts are
not remiss in crediting the practical experience of officers who
observe on a daily basis what transpires on the street."). Finally, we
note that Foreman has not cited any case law finding reasonable sus-
picion lacking under the same or a materially similar factual scenario.
We note that similar to the legal arguments made by Foreman in
this appeal, our dissenting colleague attempts to show that reasonable
suspicion did not exist by attacking the factors upon which we rely
one factor at a time. Of course, this is not the proper analytical frame-
work for determining whether reasonable suspicion supports a Terry
stop, which proper analytical framework the Supreme Court has
repeatedly admonished involves a totality of the circumstances
inquiry. See, e.g., Arvizu, 534 U.S. at 277. While the dissent takes
great pains to point out discrepancies in Trooper Wade’s testimony
and the district court’s skepticism of some of that testimony in an
effort to forecast that the district court would discredit other portions
of Trooper Wade’s testimony if given the chance on remand to do so,
UNITED STATES v. FOREMAN 15
the bottom line is that the existence of the factors that we rely upon
to hold that reasonable suspicion existed to support the very brief
detention of Foreman and his vehicle in order to conduct the mini-
mally intrusive drug dog sniff of the exterior of his vehicle are not in
dispute.
Finally, we observe that in an attempt to buttress his case for sup-
pression of the evidence, Judge Gregory assumes the posture of the
advocate, taking notice of facts outside the record and proffering
arguments that Foreman himself did not make before the district court
nor this court. For example, the dissent relies upon extra-record
weather reports to offer an innocent explanation for Foreman’s sweat-
iness at seven o’clock in the morning. The point wholly missed by the
dissent is that, while the court can take judicial notice of the tempera-
ture that day, Foreman never argued that his sweatiness was due to
warm weather as opposed to being a physical manifestation of ner-
vousness. Indeed, Foreman does not contest on appeal Trooper
Wade’s description of his nervous behavior.9
III
To sum up, we hold that Trooper Wade had reasonable articulable
suspicion to order the drug dog sniff of Foreman’s vehicle. For that
reason, we vacate the district court’s order granting Foreman’s motion
to suppress and remand the case with instructions to dismiss Fore-
man’s motion to suppress.
VACATED AND REMANDED WITH INSTRUCTIONS
9
We also note that the newspaper article containing statistical informa-
tion regarding air fresheners cited by Judge Gregory, post at 32, is also
outside the record. More importantly, such statistical information is not
the type of evidence that is subject to judicial notice under Federal Rule
of Evidence 201. Id. (providing, among other things, that for a court to
take judicial notice of a fact it "must be one not subject to reasonable dis-
pute in that it is either (1) generally known within the territorial jurisdic-
tion of the trial court or (2) capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned").
16 UNITED STATES v. FOREMAN
GREGORY, Circuit Judge, concurring in part and dissenting in part:
On June 5, 2002, Ronald Cortez Foreman, an African-American
male, drove past Trooper Wade on southbound U.S. Route 13 in
Northampton County, Virginia. Trooper Wade, assigned to a narcot-
ics interdiction unit, had just completed the search of another vehicle
when he observed Foreman drive by while "holding the steering
wheel with both hands and . . . staring straight ahead." R. vol. 4 at 2
(Trooper Wade’s Virginia State Police Investigation Report dated
June 5, 2002). Trooper Wade pulled onto Route 13 and followed
Foreman’s 1997 Mercury Mountaineer, because of Foreman’s "lack
of eye contact1 and his tense posture when he passed by," which
Wade testified were "key indicator[s] in the possibility of criminal
activity being afoot . . . ." J.A. 52.2 Trooper Wade testified that he
began to follow Foreman to "see if I could find a violation," id. at 30
(emphasis added), and admitted "[i]n an attempt to find a violation on
1
Trooper Wade’s instant reliance on Foreman’s lack of eye contact is
at odds with the government’s stance in other cases, in which officers
attempt to ground reasonable suspicion — and sometimes successfully
do so — on the fact that an individual looks or stares back at them. See,
e.g., United States v. Holland, 510 F.2d 453, 456 (9th Cir. 1975) (revers-
ing district court’s suppression and finding reasonable suspicion because,
among other factors, the vehicle’s occupants "stared at the officers for
what they believed to be an unusually long time"); see also United States
v. Pratt, 355 F.3d 1119, 1120 (8th Cir. 2004) (noting that because sus-
pect "looked at officers . . . twice" and jogged to an empty lot, the offi-
cers concluded he was trying to avoid them and a Terry stop ensued);
Price v. Kramer, 200 F.3d 1237, 1247 n.12 (9th Cir. 2000); United States
v. Griffin, 150 F.3d 778, 784 (7th Cir. 1998); United States v. Madison,
936 F.2d 90, 91 (2d Cir. 1991).
2
Before this case, I was not familiar with the notion that compliance
with the letter of textbook driver’s education instructions would trigger
police suspicion, i.e., both hands on the wheel, no rubbernecking. See,
e.g., Va. Dep’t of Motor Vehicles, Va. Driver Manual § 2 (Dangerous
Driving Behaviors) (2004) (recognizing the danger of distracted driving
and stating "[k]eep your eyes on the road and your hands on the wheel
at all times") (emphasis added), at http://www.dmv.state.va.us/webdoc/
citizen/drivers/vadm/vadm2-5.asp; Dep’t of Justice (of Montana),
Motor Vehicle Div., Montana Driver License Manual 2002-2003 52
("Do not rubberneck at crashes, someone getting a ticket, or other road-
side activity. Rubbernecking could cause you to be in a crash.") (empha-
sis added), available at http://www.doj.state.mt.us/driving/
montanadriverlicensemanual.pdf.
UNITED STATES v. FOREMAN 17
[Foreman’s] vehicle . . . I was going to conduct a pretextual stop, stop
him for a traffic violation, conduct a brief interview of him, see if I
observed any indicators of other criminal activity . . . ." Id. at 60
(emphasis added). Because Trooper Wade paced Foreman’s vehicle
at a speed of sixty-four miles per hour over a one-half mile stretch of
road where the speed limit was fifty-five, and observed "items hang-
ing from the inside rearview mirror," he activated his emergency
lights to make the stop, which Trooper Wade admitted was pretextual.
See R. vol. 4 at 2.3
After making the stop, Trooper Wade requested Foreman’s license
and registration and ordered Foreman to join the officer in his cruiser
while Wade conducted the license check. While in the cruiser,
Trooper Wade immediately "informed [Foreman] of the problems of
gun and drug smuggling on Route 13," J.A. 34, and asked Foreman
if he was carrying drugs or guns. After completing the license check,
Trooper Wade returned Foreman’s papers and gave him verbal warn-
ings on the traffic violations, however, Trooper Wade continued his
detention of Foreman which ultimately led to a dog sniff of the vehi-
cle that revealed Foreman was carrying illegal narcotics.
The majority correctly recognizes, ante at 7, that although a dog
sniff is not a search requiring probable cause, such a search cannot be
effectuated without a seizure of the vehicle, and that such a seizure
requires consent or reasonable articulable suspicion. See United States
3
Here, the legality of the initial stop is not in dispute. Although
Trooper Wade admits the reasons for the traffic stop were pretextual,
once he observed Foreman speeding and noticed the state law rear view
mirror violation, probable cause arose for the traffic stop. See Whren v.
United States, 517 U.S. 806, 813 (1996) (rejecting argument that consti-
tutional reasonableness of stops depends on the actual motivation of the
officer, and stating "the Constitution prohibits selective enforcement of
the law based on considerations such as race" through the Equal Protec-
tion Clause, not the Fourth Amendment). Here, while Foreman stated
that the "stop was pretextual in nature" and claimed that his vehicle was
stopped "because it fit the profile," Mot. Suppress at 4 (emphasis added),
he asserted that the evidence should be suppressed because the "‘pretex-
tual stop’ [was] in violation of [his] Fourth Amendment rights," id. at 3,
but he did not, in the district court or in this court, advance an Equal Pro-
tection claim.
18 UNITED STATES v. FOREMAN
v. McFarley, 911 F.2d 1188, 1191 (4th Cir. 1993) (citing United
States v. Place, 462 U.S. 696, 700-01 (1983)). Before the district
court, Trooper Wade and the government repeatedly argued that Fore-
man consented to the dog sniff.4 In support of this theory, Trooper
Wade testified that he asked Foreman if he would consent to the dog
sniff, and Foreman "nodded his head up and down . . . ." J.A. 39; see
also id. at 88 (statement by the Assistant United States Attorney that
Foreman consented to the dog sniff). The district court, however,
explicitly rejected Trooper Wade’s testimony. The district judge
stated that she had watched a videotape of the detention filmed from
Trooper Wade’s cruiser and remarked "I didn’t see that on the tape,
and [Wade’s] notes indicate that he denied the consent to search the
vehicle . . . ." Id. at 88-89. In ruling from the bench, the court added:
The only indication [of consent to the dog sniff] is there is
some testimony, which is not on the videotape, and I have
watched this videotape, I would say, at least three to four
times, to try to see everything that’s there and everything
that is on it. There is testimony about a nod. There is no evi-
dence of a nod in this case. There is no evidence of it on the
tape, and frankly there are some inconsistencies here in this
case.
4
See, e.g., J.A. 43 ("the defendant had been told that he was free to go,
and then voluntarily consented to a conversation"); at 44 ("I would sub-
mit that the facts of the case are that the defendant agreed to continue his
conversation with Trooper Wade, and furthermore agreed to have the
drug dog run around his car"); id. at 88 ("[I]t was a consensual encounter
. . . . The defendant agreed [to answer a few questions], and then [Wade]
asked him if he would mind having the dog run around the car, and he
nodded his head and he stepped back."); id. at 89 ("the defendant did in
fact consent to answer questions and did consent to having the drug dog
run around his car"); id. at 90 ("[Foreman] consented to remain after he
was told — not told, but given an indication he was free to go."). The
government submitted an entire brief on the consensual nature of the
encounter, see id. at 98-101, yet only after having its evidence sup-
pressed, and in filing a Motion for Reconsideration, did the government
begin to focus on its argument that "reasonable suspicion" provided a
basis for the dog sniff. See id. at 119-25.
 UNITED STATES v. FOREMAN 19
Id. at 113 (emphasis added).
Having rejected the consent theory, the district court analyzed this
case as two separate detentions5 — (1) Trooper Wade’s initial ques-
tioning and license check and (2) Trooper Wade’s continued ques-
tioning after returning Foreman’s papers — because the court found
the second detention violative of the Fourth Amendment, it never
addressed whether reasonable suspicion materialized. See, e.g., J.A.
136 (Dist. Ct. Slip Op. at 8) (stating that "the court evaluated the
asserted reasonable suspicion and determined that, as Trooper Wade
chose to end the traffic stop, he had, or should have, satisfied any sus-
picions that he held at that time" without determining the legal effect
of such suspicions (emphasis added)). Although I share the district
court’s concern that an officer’s signal that a driver is free to leave
may place that driver in a difficult position with regard to reinitiation
of detention, I believe the facts before us are insufficient to raise a
dissipation problem. On this basis, I join the majority’s conclusion in
Part II.C that the district court erred by analyzing Foreman’s interac-
tions with Wade as two separate incidents.
I cannot, however, join the majority in concluding that "reasonable,
articulable suspicion" was present. Unlike in United States v. Wil-
liams, 271 F.3d 1262, 1271 (10th Cir. 2001), upon which the majority
relies, the district court in this case made no findings of fact to sup-
port "reasonable suspicion." Nor can we impose such findings on this
record.
To support its holding that reasonable suspicion existed, the major-
ity closely adheres to the government’s proposed reading of the facts,
although the district court did not credit many of the government’s
factual contentions.6 To the contrary, based on its review of video and
5
I note that the government urged this interpretation. In its brief in
response to Foreman’s motion to suppress, the government wrote "be-
cause Wade had returned the defendant’s documents and told him that
he was free to go, Wade had ended his detention and began a consensual
encounter before again questioning the defendant about contraband and
requesting permission to search the defendant’s vehicle." J.A. 24 (Resp.
Mot. Suppress at 5).
6
Admittedly, the Appellee’s briefing may be partly to blame for the
majority’s willingness to accept the government’s narrative. For in the
20 UNITED STATES v. FOREMAN
audio tape of the Terry stop in question, the district court repeatedly
cast doubt on Trooper Wade’s credibility and the government’s the-
ory of the case — indeed, the district judge defined "much" of the evi-
dence presented by the government as "questionable." Accordingly,
when the facts are properly viewed in the light most favorable to
Appellee, the prevailing party, the remaining purported indicia of rea-
sonable suspicion are insufficient to support reversal. Thus, I would
remand this case for plenary consideration of the issue of reasonable
articulable suspicion, and therefore I respectfully dissent.
I.
The issue before us is whether Trooper Wade’s continued detention
of Foreman was supported by reasonable suspicion based on specific
and articulable facts that criminal activity may be afoot. Terry v.
Appellee’s opening brief, he largely recites the very statement of the
facts which the government presented in its opening brief. See Br. of
Appellee at 3-7. However, upon a careful reading of Appellee’s brief, it
is clear that he continued to contest the government’s account of the
facts. See id. at 15-17 (challenging the officer’s testimony that defendant
was nervous and that his story was inherently suspicious); id. at 19 & n.3
(challenging the government’s reliance on the presence of air fresheners
in the car and questioning the officer’s credibility and stating "[t]he gov-
ernment takes issue with the district court’s findings as to Trooper
Wade’s credibility. . . . This Court should give due deference to the dis-
trict court’s findings as to credibility"); id. at 22 (arguing that we should
carefully review and scrutinize the officer’s testimony regarding the rea-
sons for the stop and detention). In fact, Appellee’s counsel began his
oral argument by emphasizing that we must consider the evidence in
light most favorable to the defendant and immediately called into ques-
tion the officer’s credibility and relied on the fact that Judge Smith
watched a videotape of the stop and "had some reasons to question
Trooper Wade’s credibility." Recording of Oral Argument, December 5,
2003. Further, he argued that the district judge "had some problems with
Trooper Wade’s explanation for how [the sound went dead and] his other
discrepancies. I would submit that these discrepancies and contradictions
certainly caused the court to have some questions about Trooper Wade’s
credibility which affected the analysis of the factors supporting reason-
able suspicion." Id.
UNITED STATES v. FOREMAN 21
Ohio, 392 U.S. 1, 30 (1968); See also Illinois v. Wardlow, 528 U.S.
119, 123-24 (2000) (discussing "reasonable, articulable suspicion").
During a traffic stop, if the driver presents a valid license, registration
and proof that he or she is authorized to drive the car, the driver is
free to go. "Any further detention for questioning is beyond the scope
of the Terry stop and therefore illegal unless the officer has a reason-
able suspicion of a serious crime." United States v. Rusher, 966 F.2d
868, 876-77 (4th Cir. 1992). In determining whether reasonable
articulable suspicion was present, we review the totality of the cir-
cumstances in light of the officer’s experience. United States v.
Arvizu, 534 U.S. 266, 273 (2002); United States v. Sims, 296 F.3d
284, 287 (4th Cir. 2002). Yet the officer’s inferences must be objec-
tive and reasonable. United States v. Cortez, 449 U.S. 411, 418
(1981).
In this case, the district court’s credibility findings regarding
Trooper Wade’s testimony considerably color the "reasonable articul-
able suspicion" inquiry. See United States v. Hill, 195 F.3d 258, 265-
67 (6th Cir. 1999) (noting that an officer’s credibility must be scruti-
nized particularly where a pretextual stop is at issue); see also United
States v. Akram, 165 F.3d 452, 457-60 (6th Cir. 1999) (Guy, J., dis-
senting) ("The courts have given the police this extraordinary power
to make pretextual stops and searches of vehicles, but it is also the
responsibility of the courts to make sure the testimony of police offi-
cers is given the same critical scrutiny given to a defendant’s testi-
mony."); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995)
("[I]n evaluating the constitutionality of a traffic stop, a court is free
to examine . . . the officer’s credibility."); cf. Wong Sun v. United
States, 371 U.S. 471, 481-82 (1963) (stating that probable cause
determinations shall be made by a neutral magistrate to "insure that
the deliberate, impartial judgment of a judicial officer will be inter-
posed between the citizen and the police, to assess the weight and
credibility of the information which the complaining officer adduces
as probable cause").
In Part II.D, the majority reverses the district court and holds that
reasonable suspicion existed to support Foreman’s continued deten-
tion for the purpose of conducting a dog sniff. On motions to sup-
press, we review factual findings under a clearly erroneous standard,
while reviewing legal conclusions de novo. Rusher, 966 F.2d at 873.
22 UNITED STATES v. FOREMAN
Significantly, in our review of motions to suppress, we review the
evidence in the light most favorable to the prevailing party below.
United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
Accordingly, employing the appropriate standard of review, I turn
to Trooper Wade’s testimony and the factual circumstances that alleg-
edly support reasonable suspicion. Based upon the facts as found by
the district court, including the district judge’s conclusions drawn
from viewing the videotape of the detention, and the district judge’s
doubts as to Trooper Wade’s credibility, I submit that the majority is
left with, at best, three undisputed potential indicia of reasonable sus-
picion, which — when viewed individually, or in combination — are
insufficient to establish reasonable suspicion: (1) Foreman’s trip from
a purported "source city"; (2) Foreman’s travels on southbound Route
13 in Virginia; and (3) the fact that Foreman had one or more air
fresheners hanging from his rearview mirror.
II.
A.
In arguing that reasonable suspicion was present, the government
presents what it would like us to read as a litany of indicia in support.
Yet when those factors are properly weighed in light of the district
court’s findings of fact, we are left with scant and insufficient evi-
dence of reasonable suspicion. These factual problems are borne out
upon review of Trooper Wade’s testimony during the suppression
hearing. As noted above, Trooper Wade’s detention and interrogation
of Foreman was captured on a videotape recorder from the police
cruiser. That tape and its audio track — which was inaudible — were
introduced as evidence at the suppression hearing. The district court
found that the tapes and other evidence refuted, or called into ques-
tion, many of the government’s and Trooper Wade’s assertions.
1.
First, during the suppression hearing, Trooper Wade testified that
the audio track was inaudible because the body microphone used to
record the interrogation must have failed because of a dead battery.
UNITED STATES v. FOREMAN 23
See J.A. 47-48. The district court, however, rejected Trooper Wade’s
explanation, noting that the tape was clearly audible when the stop
began, id. at 80, but the sound vanished when he started interrogating
Foreman. Id. at 84. In ruling from the bench, the district court explic-
itly relied on the absence of sound as evidence of inconsistency in
Trooper Wade’s testimony and the government’s case:
I note that it’s the only segment on the tape where there is
no sound. There are other stops here . . . and if you run [the
tape] a little before and a little bit after [the Foreman deten-
tion], there is sound everywhere else on this tape, but there
is no sound on this particular stop. And furthermore, the tes-
timony was that the battery went dead, but there is no indi-
cation of a battery going dead.
Id. at 114 (emphasis added).
2.
Second, as discussed above, the district judge flatly rejected
Trooper Wade’s testimony and the government’s contentions that
Foreman consented to the dog sniff. Supra at 17-19.
3.
Third, the district court rejected Trooper Wade’s testimony, J.A.
33, that Foreman’s lack of luggage in the car was one indication of
reasonable suspicion.7 The district court cast doubt on Trooper
Wade’s credibility, stating:
7
Trooper Wade advanced this argument, although in the government’s
brief in response to Foreman’s Motion to Suppress the government did
not raise it as an indication of reasonable suspicion. Instead, the govern-
ment’s brief pointed to only three indicia of suspicion, namely Foreman:
(1) was stopped "on Route 13, a known drug corridor"; (2) made a "very
brief trip to New York, a source city for drugs"; and (3) "avoided eye
contact" and "exhibited signs of extreme nervousness." J.A. 24 (Resp.
Mot. Suppress at 5).
24 UNITED STATES v. FOREMAN
[W]e just saw a videotape. There is a huge white safe in the
back of this vehicle. . . . You never made mention of seeing
that early on. . . . And yet you say there is no luggage. Let’s
go on the videotape . . . . What my concern is, Officer
Wade, is you said there was no luggage. That was an indi-
cia. You said there was no luggage, because you could see
into the vehicle. If you could see into the vehicle, I don’t
know how in the world you could have missed this big,
white safe.
Id. at 78-79. Upon further probing by the district judge, Wade admit-
ted the safe "could have been a big metal trunk . . . . [t]hat could have
been luggage." Id. at 80. In ruling from the bench, the district court
memorialized this inconsistency as significant, id. at 113-14, and
stated that it, like "much of [the evidence in the case] is questionable
to the court." Id. at 115 (emphasis added). Contra ante at 3 ("[Trooper
Wade] did not see any luggage.").
4.
Additionally, Trooper Wade testified that his suspicions were
raised in his initial approach to the vehicle by the "large fold of U.S.
currency, a large wad of bills, United States bills. . . . . [I]t appeared
to be a large amount of money laying on the center console." J.A. 32;
see also id. at 21 (Gov’t Response Mot. Suppress at 2) (stating that
Wade "saw a bundle of money in the center console"). During further
questioning of Trooper Wade regarding this purported "fold," "wad,"
or "bundle," he admitted "it was not a large amount of money." And
even after a leading question by the Assistant United States Attorney
— "Well it was a large number of bills and not a large amount of
money? — Wade admitted that it was "[s]everal bills, and less than
a hundred dollars." Id. at 33 (emphasis added). Thereafter, the district
judge questioned Trooper Wade regarding this allegedly suspicious
cash on the console and he stated that he thought the amount was $42
and "it was several bills folded up together." Id. at 35 (emphasis
added) (capitalization removed).8
8
"Several" is defined as "[b]eing of a number more than two or three
but not many" or "[a]n indefinite but small number; some or a few."
UNITED STATES v. FOREMAN 25
Despite the district court’s concerns regarding Trooper Wade’s
credibility, see, e.g., J.A. at 132 n.3 ("The court notes that there were
discrepancies in the factors proffered as reasonable suspicion which
led to questions of credibility."), and notwithstanding the district
court’s absence of findings on the matter, the majority accepts
Trooper Wade’s testimony regarding Foreman’s alleged nervousness
to support its finding of reasonable suspicion. The majority relies on
Trooper Wade’s supposed observations that Foreman’s pulse beat
through his shirt, his hands shook and the carotid artery on his neck
throbbed more noticeably than anyone Trooper Wade had stopped in
the past. Ante at 3 (citing J.A. 32 (Trooper Wade’s testimony)). Sig-
nificantly, in addition to characterizing the government’s evidence as
"questionable," J.A. 115, the district judge, who had the opportunity
to review video of Foreman’s appearance and demeanor during the
stop, never credited Trooper Wade’s testimony on these matters.
For example, nowhere did the district court accept Trooper Wade’s
testimony that when Foreman responded to the question of whether
he carried drugs in the vehicle he stated "no, no, no, not that I know
of." J.A. 35. To the contrary, in ruling from the bench, the district
court stated: "[Trooper Wade] asked Mr. Foreman something about,
again, did he know anything about the drugs, and [Foreman] said
[‘]no[’] . . . ." Id. at 110. Thus, although the government repeatedly
relies on this alleged "no, no, no" response to support its argument
that Foreman was suspicious because of nervousness, see, e.g., Br. of
Gov’t at 4; Reply Br. at 9, such an argument is not cognizable given
the district court’s factual findings.
Furthermore, the majority concludes, based upon Trooper Wade’s
uncorroborated assertions, that Foreman evidenced nervousness
through heavy breathing, heavy sweating, and pulsating of the carotid
artery, ante at 12, although the district court could have explicitly
American Heritage Dictionary of the English Language (4th ed. 2000).
By contrast, the same text defines a "wad" as "[a] large amount," "[a] siz-
able roll of paper money," or "[a] considerable amount of money." Id.
Further, DEA Task Force Agent Charles Misuna’s affidavit regarding the
investigation attests that the amount recovered was $44. R. vol. 1, Mis-
una Aff. ¶ 6 (Oct. 21, 2003).
26 UNITED STATES v. FOREMAN
detailed — and still could upon the remand that I submit must occur
— the presence of such facts, based on its multiple reviews of the
video tape, were they in existence. Yet by resolving such factual
inconsistencies against Foreman, the prevailing party, the majority
contravenes our standard of review, see Seidman, 156 F.3d at 547,
and undermines the district court’s well-founded doubts regarding
Trooper Wade’s testimony on even the most basic and objective facts
in this case. In so doing, the majority adopts the role of fact finder,
elevating Trooper Wade’s testimony to a level of trustworthiness
which the district court did not accord, and which, upon appellate
review, I believe it does not warrant.
Indeed, even if the facts supported the majority’s conclusions, the
single case it cites regarding nervousness is unpersuasive. Ante at 14
(citing United States v. LeBrun, 261 F.3d 731, 734 (8th Cir. 2001)).9
The majority cites LeBrun for the proposition that reasonable suspi-
cion may be evidenced by "defendants’ exceptional nervousness dur-
ing traffic stop (e.g., sweating profusely on a cold day, hands shaking)
and increased agitation when asked routine questions by officer about
travel plans and purpose of trip added to reasonable suspicion deter-
mination . . . ." Ante at 14 (emphasis added). However, it is unclear
how LeBrun is applicable given the absence of analogous findings of
fact by the district court as well as the undisputed facts in the record.
9
Further, the majority, like the government, seems unmindful of the
fact that courts must be skeptical in using nervousness as a factor to
determine reasonable suspicion. See, e.g., Delaware v. Prouse, 440 U.S.
648, 657 (1979) (stating that a traffic stop is an "unsettling show of
authority" that may "create substantial anxiety"); United States v. Good-
ing, 695 F.2d 78, 83-84 (4th Cir. 1982) (holding that defendant’s "dis-
traught" and "nervous" demeanor as he deplaned did not amount to
reasonable suspicion); United States v. Perkins, 348 F.3d 965, 970 (11th
Cir. 2003) ("There is no reason why [the officer] should have reasonably
suspected that [the suspect’s] nervousness was tied to anything other than
the fact that he was being momentarily detained by an authority figure
with police power over him."); United States v. Santiago, 310 F.3d 336,
338-39, 342 (5th Cir. 2002) (holding that extreme nervousness, poten-
tially inconsistent stories, and other suspicious answers did not amount
to a reasonable or articulable suspicion).
UNITED STATES v. FOREMAN 27
In fact, after Trooper Wade’s testimony regarding Foreman’s
alleged throbbing neck and heavy sweat, the court asked: "How hot
was it that day? . . . . June 5, 2002, could have been pretty hot,
couldn’t it?" J.A. 32. In this question, the district court implied that
she believed these characteristics were attributable to a different sce-
nario. Indeed, on June 5, 2002, Virginia was enveloped by a heat
wave. In Norfolk, the temperature reached a record high of 95 degrees
in the midst of a week where the temperatures remained in the 90s.
See Steve Stone, Temperature Peaks at Record-Tying 95 in Norfolk,
Va. Pilot & Ledger Star, June 6, 2002, at B7, available at 2002 WL
5497483; see also U.S. Dep’t of Commerce Oceanic & Atmospheric
Admin., Unedited Local Climatological Data, Hourly Observations
Table, Norfolk Int’l Airport, June, 2002 (detailing that in Norfolk at
6:51 a.m. on June 5, 2002, the temperature had already reached 76
degrees with a relative humidity of 74 percent). Thus, despite the fact
that the stop occurred at 7 a.m., I find the heat and the fact that Fore-
man had to sit in the car under the sun for more than ten minutes ren-
der Foreman’s sweat, if it existed, fairly insignificant, and the
majority’s reliance on LeBrun misplaced.10
It is unnecessary, however, to refute the government’s proposed
facts given the district court’s findings. Employing judicially notice-
able facts, I demonstrate the flaw in Trooper Wade’s arguments
regarding Foreman’s sweat simply because I find it illustrative of
other problems the district court found with Trooper Wade’s testi-
10
The majority characterizes my reliance on "extra-record weather
reports" as "advocacy," stating that "while the court can take judicial
notice of the temperature that day, Foreman never argued that his sweati-
ness was due to warm weather as opposed to being a physical manifesta-
tion of nervousness." Ante at 15. I have not, however, assumed an
advocate’s position. To the contrary, my reliance on the weather reports
buttresses, not my opinion, but the district judge’s observations as
detailed above. Accordingly, my iteration of these historical facts simply
gives deference to the district court’s findings and the record’s detail that
our law requires. Finally, the majority is not mindful of the fact that any
argument by Foreman regarding the causes of his sweat would have been
redundant, because it was during the first moments of the government’s
direct examination of Trooper Wade when the district judge interjected
to cast doubt upon Wade’s testimony that Foreman’s sweat was an indi-
cation of nervousness. Supra at 26 (citing J.A. 32).
28 UNITED STATES v. FOREMAN
mony. As the district court repeatedly recognized, Trooper Wade’s
testimony — the heart of the government’s evidence at the suppres-
sion hearing — was laden with inconsistencies. Because the govern-
ment’s contentions regarding Foreman’s alleged nervousness and
other physical attributes manifesting suspicion are contradicted rather
than supported by the district court’s findings of fact, and Foreman
was the prevailing party below, see Seidman, 156 F.3d at 547, I find
that the majority errs by accepting them as part of the totality of the
circumstances establishing reasonable suspicion.
III.
A
Having demonstrated that the majority’s finding regarding ner-
vousness cannot be supported in the record, I proceed to discuss the
outstanding factors which the majority concludes support reasonable
suspicion. Ante at 13-14. As noted above, the outstanding factors are
easily grouped into three considerations: (1) Foreman’s trip from a
purported "source city"; (2) Foreman’s travels on southbound Route
13 in Virginia; and (3) the fact that Foreman had one or more air
fresheners hanging from his rearview mirror.
1.
I find the "source city" discussion fully unconvincing. We have
previously remarked that courts place too much weight on travel from
alleged "source cities." See United States v. Wilson, 953 F.2d 116,
125-26 (4th Cir. 1991) ("[T]he vast number of persons coming from
those ‘source cities’ relegates this factor to a relatively insignificant
role.") (citation omitted); see also Reid v. Georgia, 448 U.S. 438, 441
(1980) (holding that defendant’s arrival from "source city" was an
insufficient foundation for reasonable suspicion and stating the "cir-
cumstances describe a very large category of presumably innocent
travelers"); United States v. Beck, 140 F.3d 1129, 1138 n.3 (8th Cir.
1998) (detailing that a review of case law revealed that officers have
termed a significant number of the largest cities in the United States
as "drug source cities"); United States v. Andrews, 600 F.2d 563, 566-
67 (6th Cir. 1979) ("[O]ur experience with DEA agent testimony . . .
makes us wonder whether there exists any city in the country which
UNITED STATES v. FOREMAN 29
a DEA agent will not characterize as either a major narcotics distribu-
tion center or a city through which drug couriers pass on their way
to a major narcotics distribution center."). Indeed, the justification is
used so often by the government, that it becomes difficult to figure
out what urban area is not a "source city." See Akram, 165 F.3d at 459
n.4 (Guy, J., dissenting) ("Every urban area in the country is a source
city. This is entitled to little or no weight in my view, unless the per-
son stopped just came from someplace like Medellin, Colombia.");
see also United States v. Townsend, 305 F.3d 537, 543-44 (6th Cir.
2002) (holding travel from Chicago, a "source city," to Columbus, a
"destination city," was not indicative of reasonable suspicion in case
where passengers were nervous, lacked vehicle registration and did
not know their destination address). The characterization of travels —
even "turnaround" travel11 — from New York City, a city with a mas-
sive populace and myriad cultural, commercial and historical won-
ders, as a "source city" trip is all the more slipshod given the legion
11
The government argues that Foreman’s story of a same-day round-
trip between Norfolk and New York City to visit his evicted brother was
"of dubious plausibility." Reply Br. of Gov’t at 10. While the govern-
ment is correct to cite the general proposition that "turn-around trips"
represent one of several factors that can combine to form reasonable sus-
picion, the government errs by decontextualizing the cases on which it
relies. For example, a one-day turn-around trip might be deemed "of
dubious plausibility" when paired with other factors. However, given
Foreman’s proffered explanation, it does not appear objectively strained
in this case. Here, Foreman purportedly journeyed to New York City to
assist his brother who had just been evicted from his home. Under these
circumstances, a trip lasting longer than a day might be surprising. I find
that Foreman’s explanation alone would not raise suspicion because if
Foreman’s brother had just lost his apartment, he would need to move
out quickly, and Foreman would lack a place to stay overnight.
By contrast, the cases cited by the government regarding turn-around
trips all feature suspects who, unlike Foreman, proffered inconsistent sto-
ries concerning their travels, making the short stays seem of dubious
plausibility. See, e.g., McFarley, 991 F.2d at 1192 (noting that "over the
course of the voluntary questioning [the suspects] provided inconsistent
stories about details of their travel"); United States v. Mendez, 118 F.3d
1426, 1431 (10th Cir. 1997) (inconsistent and contradictory accounts of
the travels were at issue); United States v. Perez, 37 F.3d 510, 513 (9th
Cir. 1994) (same).
30 UNITED STATES v. FOREMAN
of innocent travelers departing New York City. See United States v.
Letsinger, 93 F.3d 140, 147-48 (4th Cir. 1996) (Hall, J., dissenting)
(stating that New York "is also a ‘source city’ for bagels and stock-
brokers" and "[m]illions of law-abiding and crime-fearing Americans
are from New York City").
2.
I find the government’s characterization of southbound Route 13 as
"a frequented corridor for illegal narcotics flowing from New York
and other points north" equally hollow as a basis for reasonable
articulable suspicion. First, the district court gave no indication that
it accepted Trooper Wade’s testimony on this issue, and the govern-
ment presented no statistics or other objective evidence regarding
Route 13’s status as a "drug corridor." Moreover, even if the factor
was supportable, every southbound car that passed Trooper Wade on
that corridor was, by the government’s logic, suspicious. Such a broad
generalization does nothing to eliminate the overwhelming number of
innocent travelers on that corridor. See Reid, 448 U.S. at 441; United
States v. Boyce, 351 F.3d 1102, 1109 (11th Cir. 2003) (holding that
travel on a "known drug corridor" did not create reasonable suspicion
because the factor was one of several applicable "to a considerable
number of those traveling for perfectly legitimate purposes") (internal
quotation marks and citation omitted); United States v. Yousif, 308
F.3d 820, 828-29 (8th Cir. 2002) (rejecting "drug corridor" factor on
the basis that too many people fit such a description for it to justify
reasonable suspicion) (citation omitted). Furthermore, given the ubiq-
uity of "source cities," it seems that every traveler on an interstate
road in the United States is likely headed in the direction of, or from,
a "source city" along that road, ostensibly placing them in a "drug
corridor." Finally, the government did not offer any objective evi-
dence of Route 13’s status as a "drug corridor," rather the only evi-
dence it presented was the "mere subjective impression[ ] of a
particular officer," United States v. Hernandez-Alvarado, 891 F.2d
1414, 1416 (9th Cir. 1989), whose credibility has been called into
question.
UNITED STATES v. FOREMAN 31
3.
Lastly, the presence of an automobile air freshener is similarly
insignificant. See United States v. Ten Thousand Seven Hundred Dol-
lars and No Cents in U.S. Currency, 258 F.3d 215, 228 n.9 (3d Cir.
2001) (rejecting government’s reliance on presence of air freshener in
vehicle as indication of narcotics nexus).12 The prevalence of these
12
I find it doubtful as to whether the government may now properly
rely on this factor at all. As discussed above, in responding to the motion
to suppress, the government never mentioned this factor as one leading
to reasonable suspicion. Supra note 7. Instead, the government only prof-
fered the air fresheners as a factor supporting the probable cause for the
pretextual stop. Only in its Motion for Reconsideration of the district
court’s suppression order did the government argue that the air
fresheners were a factor supporting reasonable suspicion. See J.A. 124.
Thus, the government’s ill-timed reliance on this factor is misplaced. See
Wilson, 953 F.2d at 124 (noting that we would not consider a factor on
appeal which had not been raised at the suppression hearing).
While the majority attempts to distinguish my reliance on Wilson, ante
at 13 n.8, it overlooks the well-established principle that arguments
raised for the first time in a motion for reconsideration are generally
deemed waived. See Holland v. Big River Minerals Corp., 181 F.3d 597,
605 (4th Cir. 1999) (stating issue first presented in a motion pursuant to
Fed. R. Civ. P. 59(e) "is not preserved for appellate review unless the
district court exercises its discretion to excuse the party’s lack of timeli-
ness and consider[s] the issue"); see also Mungo v. Taylor, 355 F.3d 969,
978 (7th Cir. 2004) ("Arguments raised for the first time in connection
with a motion for reconsideration, however, are generally deemed to be
waived.") (citation omitted); DiMarco-Zappa v. Cabanillas, 238 F.3d 25,
33 (1st Cir. 2001) ("To the extent that appellants’ reconsideration motion
sought to raise an argument waived at the trial stage, it must necessarily
fail."); Pittston Co. Ultramar Am. Ltd. v. Allianz Ins. Co., 124 F.3d 508,
n.12 (3d Cir. 1997) (declining to consider on appeal issue raised for the
first time in a post-judgment motion); CMM Cable Rep, Inc. v. Ocean
Coasts Props., Inc., 97 F.3d 1504, 1526 (1st Cir. 1996) (stating "there is
absolutely no merit" to the argument "that we should find [a party’s]
arguments preserved because they were advanced in its motion for recon-
sideration"); Manor Healthcare Corp. v. Guzzo, 894 F.2d 919, 922 n.4
(7th Cir. 1990) (stating "[r]aising an issue in a motion for reconsideration
does not save the issue for appeal") (citations omitted); Am. Meat Inst.
v. Pridgeon, 724 F.2d 45, 47 (6th Cir. 1984) (holding issue raised for
first time in motion for reconsideration constituted waiver); but see
Instone Travel Tech Marine & Offshore v. Int’l Shipping Partners, Inc.,
32 UNITED STATES v. FOREMAN
devices in American automobiles does little to eliminate innocent
travelers within the context of reasonable articulable suspicion. See
Sweet Scents Make Big Cents, Detroit News, Dec. 10, 2003, at 1G
(reporting that American consumers spend more than $330 million
annually on air fresheners for their automobiles and prices for such
items start at 50 cents). Furthermore, the government asserts that the
mere presence of an air freshener is an indicia of reasonable suspicion
— Trooper Wade’s testimony makes no reference to odor emanating
from Foreman’s vehicle — whereas courts that have accorded an air
freshener any weight in the reasonable suspicion calculus focus on its
trigger of the officer’s olfactory senses. See United States v. West, 219
F.3d 1171, 1178 (10th Cir. 2000) ("The Tenth Circuit has consistently
held that the scent of air freshener is properly considered as a factor
in the probable cause analysis.") (emphasis added) (citing cases);
United States v. Freeman, 209 F.3d 464, 469 (6th Cir. 2000) (Clay,
J., concurring) (referencing court’s past reliance on the "strong scent
of air freshener" emanating from a vehicle as a factor); United States
v. Pierce, 152 F.3d 808, 810 (8th Cir. 1998) (noting officer smelled
an odor of air freshener coming from inside a van).
B.
While, in the most forgiving light, the majority is left with three
factors, which we and other courts have sometimes recognized as
rightful considerations in forming reasonable suspicion, each of those
factors is relatively minor and often subject to qualification. Even if
the combination of the articulated factors were fully supported by the
record as it now stands, together they simply cannot "eliminate a sub-
stantial portion of innocent travelers," thus reasonable suspicion is
334 F.3d 423, 431 n.7 (5th Cir. 2003) ("This court has held that issue
raised for the first time in post judgment motions are preserved for
appeal.") (citations omitted). As the Seventh Circuit has recognized,
"[m]otions for reconsideration serve a limited function: to correct mani-
fest errors of law or fact or to present newly discovered evidence. Such
motions cannot in any case be employed as a vehicle to introduce new
evidence that could have been adduced during pendency of the [original]
motion." Publishers Res., Inc. v. Walker-Davis Publ’ns, Inc., 762 F.2d
557, 561 (7th Cir. 1985) (internal quotation marks and citation omitted).
UNITED STATES v. FOREMAN 33
lacking. United States v. Brugal, 209 F.3d 353, 361 (4th Cir. 2000)
(en banc) (plurality opinion). The factors together amount to little
more than a blanket generalization about the nature of certain crimes
that fails to provide the specificity which is the hallmark of the Fourth
Amendment. See Cortez, 449 U.S. at 418. Thus, I conclude that this
case should be remanded to the district court so that it may properly
examine the testimony, evidence and other fact-finding in which it
engaged to determine whether reasonable suspicion ever materialized.
IV.
For the reasons stated above, I find this record is insufficient for
the majority to make a finding of reasonable articulable suspicion.
Moreover, in light of the credibility concerns regarding Trooper Wade
and the district court’s statement that it found "much" of the govern-
ment’s evidence "questionable," it is the district judge — who
watched the video of Trooper Wade’s detention of Foreman three or
four times, J.A. 113, and saw Trooper Wade testify in court — that
remains best situated to resolve the many doubts that remain. For
these reasons, I respectfully dissent.