USA v. Pack

Filing

Download PDF
USA v. Pack Doc. 0 Case: 08-41063 Document: 00511174826 Page: 1 Date Filed: 07/15/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED July 15, 2010 N o . 08-41063 Lyle W. Cayce Clerk U n ite d States of America P la in t if f -A p p e lle e v. K e v in Andrew Pack II D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court fo r the Eastern District of Texas B e fo r e GARWOOD, DAVIS, and DENNIS, Circuit Judges. G A R W O O D , Circuit Judge: D e fe n d a n t -a p p e lla n t , Kevin Andrew Pack II (Pack), was charged with p o s s e s s io n with intent to distribute 17.91 pounds of marihuana in violation of 2 1 U.S.C. § 841(a)(1) and using, possessing, and carrying a Luger pistol during, in relation to, and in furtherance of a drug trafficking crime in violation of 18 U .S .C . § 924(c)(1). Pack filed a motion to suppress the marihuana and the pistol, a r g u in g that this evidence was tainted by an unconstitutional detention of his p e r s o n that occurred during the traffic stop and subsequent search of the vehicle in which he had been a passenger. The district court denied his motion to s u p p r e s s , finding that he lacked standing to challenge the evidence. Pack Dockets.Justia.com Case: 08-41063 Document: 00511174826 Page: 2 Date Filed: 07/15/2010 No. 08-41063 e n te r e d a conditional guilty plea in which he pleaded guilty to the charge of p o s s e s s in g the pistol in violation of section 924(c)(1), but reserved the right to a p p e a l the denial of his motion to suppress. Under the terms of his plea a g r e e m e n t, the charge of possession with intent to distribute marihuana was d is m is se d . On appeal, Pack argues that he has standing to challenge the discovery of t h e drugs and the gun, because he has standing to contest the seizure of his person . He further argues that his motion to suppress should have been g r a n t e d , because the challenged evidence was the fruit of an illegal detention t h a t violated his Fourth Amendment rights. The Government concedes that he h a d standing to challenge the evidence, but argues that the undisputed factual r e c o r d supports the denial of his motion to suppress. F o r the following reasons, we affirm. F A C T S AND PROCEEDINGS BELOW O n February 26, 2006, Trooper Brian Worley (Worley) of the Texas D e p a r t m e n t of Public Safety (DPS) ­ a some seventeen year law enforcement o ffic e r ­ stopped an easterly bound vehicle bearing Indiana license plates in H o p k in s County, Texas, for traveling at seventy-eight miles per hour on a p o r t io n of Interstate 30 (I-30) with a speed limit of seventy miles per hour. The d r iv e r and owner of the vehicle was Courtney Williamson (Williamson). Pack w a s her only passenger. The stop occurred at 8:45 a.m.1 W o r le y approached the passenger side of the vehicle and asked both o c c u p a n t s for their driver's licenses. He also requested the vehicle's registration. The timing of this and several other relevant events in this case is reflected in the time stamps on a video of the traffic stop that was admitted into evidence at the hearing on Pack's motion to suppress. They are not disputed. 1 2 Case: 08-41063 Document: 00511174826 Page: 3 Date Filed: 07/15/2010 No. 08-41063 H e noticed that Pack appeared to be extremely nervous. Pack was breathing h e a v ily , his hands were shaking, and his carotid artery was visibly pulsing. Worley asked Williamson to accompany him back to the patrol car. Once they were in the patrol car, Worley informed Williamson that she h a d been speeding and that he planned to issue her a warning. He then asked h e r about her travel history. She replied that she and Pack, her boyfriend, had b e e n visiting her aunt in Houston for the last two days, because her aunt was ill. A t 8:48 a.m., Worley radioed dispatch and requested computer checks on W illi a m s o n 's and Pack's licenses and criminal histories. Dispatch informed W o r le y that the Texas Crime Information Center's (TCIC) computer was down, s o he would only be able to obtain driver's license information at that time. One m in u t e later, dispatch informed him that Williamson's license was clear, but t h a t Pack's had been suspended. L e a v in g Williamson with the patrol car, Worley returned to Williamson's v e h ic le and informed Pack that his license had been suspended. Pack said that h e knew about the suspension. Worley then asked Pack about the couple's travel h is t o r y . Pack told Worley that he and Williamson were coming from Dallas, w h e r e they had visited friends. Pack also said that, before going to Dallas, he a n d Williamson had stayed with some of his relatives in San Antonio for a few d a y s . In response to questioning by Worley, Pack said that he was not aware of a n y family Williamson might have had in Texas. He also said that he did not k n o w if Williamson had any family members in Texas who were ill. Worley later testified that he knew I-30 served as a drug trafficking c o r r id o r and that Houston and Dallas were major drug distribution centers. Worley had been in law enforcement for seventeen years. The conflicting stories 3 Case: 08-41063 Document: 00511174826 Page: 4 Date Filed: 07/15/2010 No. 08-41063 t o ld by Pack and Williamson, the fact that they were traveling along a drug t r a ffic k in g corridor, and Pack's extreme nervousness led Worley to believe, based o n his experience, that Pack and Williamson were involved in criminal drug a c tiv ity . At 8:51 a.m., Worley returned to the patrol car, confronted Williamson w it h the differences between her story and Pack's, and asked her if she had any ille g a l items in her vehicle. She said that she did not, but she refused to grant W o r l e y permission to search the vehicle. Worley responded by calling in a c a n in e unit. Afterwards, he continued to question Williamson, who changed her s t o r y , claiming that Pack had stayed in San Antonio while she visited her aunt in Houston. However, she could not name any of Pack's relatives in San A n t o n io , and she did not know her aunt's current last name, though she claimed it previously had been "Pierson." 2 S e v e r a l minutes later, dispatch informed Worley that the DPS canine unit w o u ld take forty-five minutes to arrive. Worley cancelled the request and in s t e a d called in the canine unit of Hopkins County (where the stop occurred). He then returned to Williamson's vehicle and questioned Pack, who changed his s t o r y , denying that he had stayed in San Antonio and adding that he had visited s o m e o n e in Houston with Williamson, though he said he did not know if the p e r s o n they had visited was her aunt. At 8:57 a.m., Worley told Pack to join Williamson in the back of the patrol c a r . In response to questioning about his criminal history, Pack admitted that h e had been arrested in the past for theft and for fighting at school. Further Williamson may have said "Peterson" instead of "Pierson," but her response to this question on the videotape of the stop is not clearly audible. 2 4 Case: 08-41063 Document: 00511174826 Page: 5 Date Filed: 07/15/2010 No. 08-41063 q u e s t io n in g of the couple revealed that Williamson did not know her aunt's t e le p h o n e number or home address. At 9:02 a.m., dispatch informed Worley that the TCIC system was working a g a in . Both records initially came back clean, but at 9:05 a.m., dispatch r e p o r t e d that Pack had four prior arrests for theft. At 9:09 a.m., Worley called in the license plate number of Williams's vehicle, and at 9:10 a.m. dispatch c o n fir m e d that it was registered to Williams. The canine unit arrived at 9 :1 8 a.m., and the dog alerted to the vehicle's trunk. Worley searched the trunk a n d found two duffel bags containing 17.91 pounds of marijuana and a Luger p is to l. The magistrate judge's report and recommendation, and modified report a n d recommendation, each summarize the above stated undisputed facts in the " b a c k g r o u n d " section of those respective reports. O n November 8, 2006, a grand jury indicted Pack on two counts, p o s s e s s io n with intent to distribute 17.91 pounds of marihuana in violation of 2 1 U.S.C. § 841(a)(1) and using, possessing, and carrying the Luger during, in r e la t io n to, and in furtherance of a drug trafficking crime in violation of 18 U .S .C . § 924(c)(1). Pack filed a motion to suppress the marijuana and the pistol o n February 19, 2008, arguing that both were the fruit of an unconstitutional s e iz u r e of his person. A hearing on the motion to suppress was held before a magistrate judge o n February 27, 2008. The only evidence presented at the hearing was the t e s t im o n y of Worley and the video of the traffic stop. The magistrate judge is s u e d a report recommending that the motion be denied on March 5, 2008. This r e p o r t was withdrawn in response to objections made by Pack, and a modified 5 Case: 08-41063 Document: 00511174826 Page: 6 Date Filed: 07/15/2010 No. 08-41063 r e p o r t dated April 10, 2008 was issued recommending again that the motion be d e n ie d (all without any further evidentiary hearing or request for same). The m a g is tr a t e judge reached this recommendation based on its conclusion that Pack la c k e d standing to challenge the discovery of the evidence found in the search o f Williamson's vehicle. He further held that, even if Pack had standing to c h a lle n g e the discovery of the evidence, Pack had not demonstrated a factual n e x u s between his detention and the discovery of the challenged evidence. Pack file d additional objections, but the district court accepted the modified report and r e c o m m e n d a t io n on May 2, 2008, and denied Pack's motion to suppress. On June 3, 2008, Pack entered a conditional guilty plea in which he r e s e r v e d the right to appeal the district court's denial of his motion to suppress. On September 15, 2008, he was sentenced to sixty months of imprisonment, t h r e e years of supervised release, and a $100.00 special assessment. Pack now p r o s e c u t e s his appeal. DISCUSSION P a c k argues that the district court erred in adopting the magistrate court's m o d ifie d report and recommendation, which found that Pack's motion to s u p p r e s s should be denied because he lacked standing to challenge the search o f Williamson's vehicle and because there was no factual nexus between his a lle g e d ly unconstitutional detention and the discovery of the challenged e v id e n c e . The Government, although it argued lack of standing below, concedes in this court that Pack had standing to challenge the evidence, asserting that P a c k 's standing to challenge the seizure of his person allowed him to challenge a ll evidentiary fruits of his seizure. However, the Government argues that we s h o u ld affirm the denial of Pack's motion to suppress because the factual record 6 Case: 08-41063 Document: 00511174826 Page: 7 Date Filed: 07/15/2010 No. 08-41063 e s t a b lis h e s that Pack's detention was constitutional.3 I. S ta n d a r d of Review W h e r e a district court has denied a motion to suppress evidence, we review it s factual findings for clear error and its conclusions of law de novo. United S ta te s v. Charles, 469 F.3d 402, 405 (5th Cir. 2006). We view the evidence in the lig h t most favorable to the party that prevailed below. United States v. Cantu, 2 3 0 F.3d 148, 150 (5th Cir. 2000). We may affirm the district court's decision on a n y basis established by the record. Charles, 469 F.3d at 405; United States v. I b a r r a -S a n c h e z , 199 F.3d 753, 758 (5th Cir. 1999). II. F o u r t h Amendment "Standing" T h e exclusionary rule allows a defendant to suppress the evidentiary fruits o f a violation of his Fourth Amendment rights. 6 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.1, at 4 (4th ed. 2004). Fourth A m e n d m e n t rights are personal rights, which may be enforced only by the p e r s o n whose rights were infringed. Rakas v. Illinois, 99 S.Ct. 421, 428 (1978). Because Fourth Amendment rights are personal, the Supreme Court has stated t h a t there is no useful analytical purpose to be served by considering a matter o f standing distinct from the merits of a defendant's Fourth Amendment claim. See id. ("Rigorous application of the principle that the rights secured by this A m e n d m e n t are personal, in place of a notion of `standing,' will produce no a d d it io n a l situations in which evidence must be excluded."). Despite this The historic facts concerning the stop and subsequent search of Williamson's car are largely set out in the "Factual Background" section of the magistrate judge's April 10, 2008 modified report and recommendation. At oral argument Pack's counsel expressly conceded that he was not challenging the facts as so set out. Nor has he challenged any of the hereinabove recited historic facts in any of his appellate briefing or at oral argument. The underlying facts as hereinabove set out are undisputed. 3 7 Case: 08-41063 Document: 00511174826 Page: 8 Date Filed: 07/15/2010 No. 08-41063 a d m o n is h m e n t , for brevity's sake, courts often refer to the question of whether o r not a defendant is asserting a violation of his own Fourth Amendment rights a s one of "standing." See, e.g., United States v. Grant, 349 F.3d 192, 195­96 (5th C ir . 2003); United States v. DeLuca, 269 F.3d 1128, 1131 (10th Cir. 2001). In Rakas, the Supreme Court held that the Fourth Amendment rights of p a s s e n g e r s were not violated when the police unlawfully searched the vehicle in w h ic h they were riding if the passengers had no ownership interest or r e a s o n a b l e expectation of privacy in the vehicle. Id., 99 S.Ct. at 429­33. Because the passengers had no ownership interest or reasonable expectation of p r iv a c y in the vehicle, the only Fourth Amendment rights that had been violated w e r e those of the vehicle's owner. See id. However, in Brendlin v. California, t h e Court held that a passenger with no ownership interest in a vehicle could c h a lle n g e evidence discovered as a result of an allegedly illegal traffic stop of the v e h ic le , because the stop and the detention that followed constituted a seizure o f the persons of everyone in the vehicle. 127 S.Ct. 2400, 2403­07 (2007). Since e v e r y o n e in the vehicle was seized, the passenger's challenge was directed a g a in s t a purported violation of his own Fourth Amendment rights. See id. Pack argued before the magistrate judge that he had "standing" to c h a lle n g e the evidence, because it was the fruit of a seizure of his person, which h e had "standing" to challenge under the rule of Brendlin. The magistrate judge d is a g r e e d , because he found that Pack's argument contained a flawed premise. It was not necessarily true that the evidence was the fruit of Pack's seizure, b e c a u s e Williamson was also detained by Worley. Even if Worley had released P a c k , the evidence still would have been discovered if Worley had continued to d e t a in Williamson and her vehicle. And Pack could not assert Williamson's 8 Case: 08-41063 Document: 00511174826 Page: 9 Date Filed: 07/15/2010 No. 08-41063 F o u r t h Amendment rights, because Fourth Amendment rights are personal in n a t u r e . See Rakas, 99 S.Ct. at 428. Cf. United States v. Sharpe, 105 S.Ct. 1568, 1 5 7 4 (1985) ("It is not necessary for us to decide whether the length of Sharpe's d e t e n t io n was unreasonable, because that detention bears no causal relation to A g e n t Cooke's discovery of the marihuana. The marihuana was in Savage's p ic k u p , not in Sharpe's Pontiac; the contraband introduced at respondents' trial c a n n o t logically be considered the `fruit' of Sharpe's detention."). Furthermore, the magistrate judge concluded that, even if the evidence h a d been obtained in part as a result of the seizure of Pack's person, he had not s h o w n that it was obtained as a result of the only aspect of his seizure which was e v e n arguably illegal. A defendant cannot suppress evidence obtained as the r e s u lt of a search or seizure which was legal. See Sharpe, 105 S.Ct. at 1573 (" T h e Fourth Amendment is not, of course, a guarantee against all searches and s e iz u r e s , but only against unreasonable searches and seizures." (emphasis in o r ig in a l)). Rather, he must move to suppress evidence obtained as the result of a n alleged violation of his Fourth Amendment rights. See id. P a c k did not allege that Worley's decision to stop Williamson's vehicle was a violation of his Fourth Amendment rights. He could not have made this a r g u m e n t successfully, because the evidence was undisputed that the vehicle w a s speeding. See, e.g., United States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1 9 9 3 ) ("Appellants do not argue, nor could they, that the initial stop of their v e h ic l e for speeding was improper. This is so whether or not Terry applies."). Pack cannot validly allege that the detention that followed the stop immediately v io la t e d his Fourth Amendment rights. Any such argument is plainly untenable u n d e r our case law. See, e.g., United States v. Brigham, 382 F.3d 500, 507­508 9 Case: 08-41063 Document: 00511174826 Page: 10 Date Filed: 07/15/2010 No. 08-41063 (5 t h Cir. 2004) (en banc) (describing the types of inquiries and routine checks a p o lic e officer may perform automatically upon making a lawful traffic stop). This leaves Pack's claim that his detention became illegal after Worley c o m p le t e d the driver's license and criminal history checks. See generally B r i g h a m , 382 F.3d at 510 (discussing prior cases in which evidence was su p p resse d because police officers completed their "computerized driver's license a n d vehicle registration checks but continued to detain the drivers without r e a s o n a b le suspicion . . . ."). However, Worley observed Pack's extreme nervousness and obtained P a c k 's conflicting story before the routine checks were completed. The n e r v o u s n e s s and the conflicting story were the key facts that caused Worley to b e c o m e suspicious and detain the vehicle. Therefore, the magistrate judge found t h a t the portion of Pack's detention which Pack argued was illegal had not c o n t r ib u t e d to Worley's discovery of the drugs. If Worley had released Pack p r o m p t ly after he had exhibited extreme nervousness and he and Williamson h a d told their conflicting stories, Worley still would have discovered the m a r i h u a n a and the pistol, so long as he had continued to detain Williamson. Therefore, in the magistrate judge's words, there was no "factual nexus" between t h e alleged Fourth Amendment violation consisting of the subsequent continued d e t e n t io n of Pack and the discovery of the marihuana and the pistol. Accordingly, the magistrate judge held that Pack lacked "standing" to challenge t h e evidence. The magistrate judge refused to reach the issue of whether or not P a c k 's detention had been constitutional on the merits, because he had c o n c lu d e d that Pack lacked "standing." We decline to review the issue of "standing" on appeal, because we agree 10 Case: 08-41063 Document: 00511174826 Page: 11 Date Filed: 07/15/2010 No. 08-41063 w it h the Government that, even if Pack had "standing" to challenge the e v id e n c e , the undisputed factual record supports the denial of his motion to s u p p r e s s on the ground that his detention was constitutionally justified. In d e c lin in g to address the issue of "standing," we make no comment on the p r o p r i e t y of the Government's decision to concede.4 Therefore, we assume for t h e sake of argument that Pack was entitled to challenge the evidence discovered in Williamson's vehicle as being the fruit of a violation of his Fourth Amendment r ig h ts . III. F o u r t h Amendment Merits 5 We also note that our decision to resolve Pack's case on the merits without addressing the "standing" issue is not an exercise of "hypothetical jurisdiction" like that prohibited by the Supreme Court in Steel Co. v. Citizens for a Better Environment. 118 S.Ct. 1003, 1016­17 (1998). This follows from the fact that the question of Fourth Amendment "standing" is not truly a question of standing in the first place, but is instead an issue of the merits of Pack's claim. See Rakas, 99 S.Ct. at 428 (stating that there is no useful analytical purpose to be served by considering a matter of standing distinct from the merits of a defendant's Fourth Amendment claim). Contrary to the suggestion of the dissent, nothing in United States v. Arvizu, 122 S.Ct. 744 (2002), requires a remand, nor does the dissent cite any case requiring such a remand on the basis of Arvizu. It is clear that "as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Ornelas v. United States, 116 S.Ct. 1657, 1663 (1996). "This court may affirm the district court's ruling on a motion to suppress based on any rational supported by the record." United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005). See also United States v. IbarraSanchez, 199 F.3d 753, 758 (5th Cir. 1999) (same). "To the extent the underlying facts are undisputed, as they essentially are here, we may resolve questions such as probable cause and reasonable suspicion as questions of law." Blackwell v. Barton, 34 F.3d 298, 305 (5th Cir. 1994). See also Ibarra-Sanchez at 758 (same); United States v. Kye Soo Lee, 962 F.2d 430, 435 n.17 (5th Cir. 1992) (where determinative facts are not disputed, probable cause is a question of law); United States v. Basey, 816 F.2d 980, 988 (5th Cir. 1987) (reasonableness in investigatory stop cases ultimately a question of law). Here the only evidence before the magistrate judge was the testimony of Worley and the videotape of the stop (with audio). At no time did Pack testify (he was clearly protected by United States v. Simmons, 88 S.Ct. 967, 975-76 (1968)). Nor did Williamson testify. All the evidence at the hearing was presented by the United States in support of its previously filed opposition to the motion to suppress which alleged not only a lack of standing but also that, in any 5 4 11 Case: 08-41063 Document: 00511174826 Page: 12 Date Filed: 07/15/2010 No. 08-41063 W e analyze the legality of traffic stops for Fourth Amendment purposes u n d e r the standard articulated by the Supreme Court in Terry v. Ohio, 88 S.Ct. 1 8 6 8 (1968). Brigham, 382 F.3d at 506. Under this standard, we make a twop a r t inquiry. Id. First, we examine whether or not the officer's decision to stop t h e vehicle was justified at its inception. Id. Second, we determine whether or n o t the officer's subsequent actions were reasonably related in scope to the c ir c u m s t a n c e s that caused him to stop the vehicle in the first place. Id. An o ffic e r 's subsequent actions are not reasonably related in scope to the c ir c u m s t a n c e s that caused him to stop the vehicle if he detains its occupants b e y o n d the time needed to investigate the circumstances that caused the stop, u n le s s he develops reasonable suspicion of additional criminal activity in the m e a n t im e . Id. at 507. If the officer develops reasonable suspicion of additional c r im in a l activity during his investigation of the circumstances that originally c a u s e d the stop, he may further detain its occupants for a reasonable time while a p p r o p r ia te ly attempting to dispel this reasonable suspicion. See id. We have held that an officer may examine driver's licenses and vehicle r e g i s t r a t i o n s and run computer checks as part of his investigation of the c ir c u m s t a n c e s that originally caused the stop. Id. at 508. He may also ask a b o u t the purpose and itinerary of the occupants' trip as part of this in v e s t ig a t io n , because we consider these questions to be reasonably related in s c o p e to his investigation of the circumstances that caused the stop. See id. at event, Worley's "continued detention of Pack after the computer checks were returned was permissible" because "he had developed a reasonable suspicion that the defendant was engaged in criminal activity," citing, inter alia, Pack's extreme nervousness, the highway being a known drug corridor, and the above noted illogical and conflicting stories that Pack and Williamson told Worley about their travels. Pack has at no time ­ here or below ­ challenged the facts as related by Worley (and recited in the magistrate judge's reports) regarding the stop as hereinabove set out. 12 Case: 08-41063 Document: 00511174826 Page: 13 Date Filed: 07/15/2010 No. 08-41063 5 0 6 ­ 0 8 . Additionally, we have held that an officer may ask questions on subjects u n r e la t e d to the circumstances that caused the stop, so long as these unrelated q u e s t io n s do not extend the duration of the stop. Shabazz, 993 F.2d at 436­37. The reasoning behind this rule is that the Fourth Amendment protects against d e t e n t io n , not questioning. Id. at 436. Thus, no Fourth Amendment harm is d o n e where the officer asks the occupants of a vehicle questions that are u n r e la t e d to his reason for stopping the vehicle while waiting for routine c o m p u te r checks to be processed. See id. at 436­37. T h e first part of the two-part Terry inquiry is not at issue in Pack's case, b e c a u s e it is undisputed that Williamson's vehicle was speeding, so it is u n d is p u t e d that Worley's stop was justified at its inception. See, e.g., Shabazz, 9 9 3 F.2d at 435 (5th Cir. 1993) ("Appellants do not argue, nor could they, that t h e initial stop of their vehicle for speeding was improper."). The Government a r g u e s that the second part of the Terry inquiry was also satisfied. It argues t h a t the facts that emerged during Worley's investigation of Williamson's s p e e d in g offense were sufficient to create reasonable suspicion in his mind that P a c k was engaged criminal activity, justifying Worley's decision to detain Pack u n t il the canine unit arrived. Pack argues that Worley's decision to detain him b e y o n d the time it took to investigate Williamson's speeding offense6 violated the It is not clear exactly when Pack alleges his detention became illegal. His brief is equivocal on this point, and at oral argument, his counsel suggested that it might have become illegal after the license checks were completed at 8:49 a.m., after the criminal history checks were completed at 9:05 a.m., or after the vehicle's registration was confirmed at 9:10 a.m. Because Pack did not clearly present arguments in favor of one time over any of the others, we will presume he asserts that his detention became illegal at 9:10 a.m., after the last of Worley's computer checks was completed. See Sanders v. Unum Life Ins. Co. of Am., 553 F.3d 922, 926 (5th Cir. 2008) ("`A party waives an issue if he fails to adequately brief it' on appeal." (quoting Audler v. CBC Innovis Inc., 519 F.3d 239, 255 (5th Cir. 2008)). Cf. Brigham, 382 F.3d at 508 (holding that an officer may run computer 6 13 Case: 08-41063 Document: 00511174826 Page: 14 Date Filed: 07/15/2010 No. 08-41063 s e c o n d part of the Terry inquiry, because Pack contends that the facts that e m e r g e d during Worley's investigation could not have created reasonable s u s p ic io n that Pack was engaged in drug trafficking. A. Questioning a Passenger Who Has Committed No Violation I n his brief, Pack argues that "It is unclear whether a state trooper who m a k e s a traffic stop has the authority to require any and all passengers in that c a r to identify themselves and then run a computer check on passengers." He a ls o asserts that it is unclear "whether an officer can question a passenger who h a s committed no violation." Pack's primary support for these arguments is Judge DeMoss's concurring o p in io n in Grant. 349 F.3d at 199 (DeMoss, J., concurring) ("I note particularly t h a t [the defendant] did not raise as an issue on appeal, and my colleagues did n o t decide, whether a state trooper who makes a traffic stop has the authority t o require any and all passengers in that car to identify themselves and then run a computer check on those passengers . . . ."). While this uncertainty arguably m a y have existed at the time Judge DeMoss wrote his special concurrence in G r a n t, the Government contends that it has since been dispelled by our more r e c e n t en banc opinion in United States v. Brigham, in which we stated that, " w it h in the legitimate scope of the stop were the registration and license checks t h a t [the police officer] . . . initiated on the vehicle and its occupants." Brigham, 3 8 2 F.3d at 509. We agree with the Government that this language settled the is s u e of whether or not it was permissible to ask a passenger like Pack to id e n tify himself and to run computer checks on his driver's license and checks as part of his investigation of the circumstances that originally caused him to stop a vehicle). 14 Case: 08-41063 Document: 00511174826 Page: 15 Date Filed: 07/15/2010 No. 08-41063 b a ck g rou n d . Nor is there any merit to Pack's suggestion that it may have been im p r o p e r for Worley to question him in order to verify the information that had b e e n provided by Williamson. In Brigham, we stated that "An officer may . . . a s k about the purpose and itinerary of a driver's trip during [a] traffic stop." Id. a t 508. We also stated that "the Fourth Amendment permits `[a] police officer [t o ] undertake similar questioning of the vehicle's occupants to verify the in fo r m a t io n provided by the driver.'" Id. (quoting United States v. Linkous, 285 F .3 d 716, 719 (8th Cir. 2002)) (brackets in original). Therefore, we find that Pack's arguments concerning the propriety of W o r le y 's questioning and computer checks were foreclosed by our en banc o p in io n in Brigham. B. Reasonable Suspicion The central issue in this appeal is whether or not Worley had reasonable s u s p ic io n that Pack was engaged in criminal activity before Worley's routine c o m p u te r checks were completed. The Government argues that reasonable s u s p ic io n was created by (1) Pack's extreme nervousness, (2) Pack's conflicting s t o r y , and (3) the fact that Pack was traveling along a drug trafficking corridor. Pack does not address whether or not there was reasonable suspicion in a n y detail in his brief. Instead, his brief focuses mostly on the timing of his d e t e n t io n . However, he does argue in his brief that our opinion in United States v . Jones, 234 F.3d 234 (5th Cir. 2001), indicated that inconsistent stories were in s u ffic ie n t to create reasonable suspicion. He also discusses in detail our o p in io n in United States v. Dortch, 199 F.3d 193 (5th Cir. 1999), arguing that the d e c is io n is "instructive" in resolving his case. At oral argument, Pack contended t h a t our opinion in United States v. Santiago, 310 F.3d 336 (5th Cir. 2003), 15 Case: 08-41063 Document: 00511174826 Page: 16 Date Filed: 07/15/2010 No. 08-41063 s t a n d s for the proposition that inconsistent stories cannot create reasonable s u s p ic io n by themselves and that our opinion in Dortch established that a c o m b in a t io n of extreme nervousness and inconsistent stories is insufficient to c r e a t e reasonable suspicion of drug trafficking. Before we examine these a r g u m e n t s in depth, it is helpful to review the general principles we use in d e t e r m in in g whether or not "reasonable suspicion" exists. 1. General Principles of Reasonable Suspicion " R e a s o n a b le suspicion exists when the detaining officer can point to s p e c ific and articulable facts that, when taken together with rational inferences fr o m those facts, reasonably warrant the . . . seizure." United States v. Estrada, 4 5 9 F.3d 627, 631 (5th Cir. 2006). Reviewing courts making reasonable s u s p ic io n determinations "must look at the totality of the circumstances of each c a s e to see whether the detaining officer has a particularized and objective basis fo r suspecting legal wrongdoing." United States v. Arvizu, 122 S.Ct. 744, 750 (2 0 0 2 ) (internal quotation marks omitted). In evaluating whether or not an o ffic e r 's suspicion is reasonable, "due weight must be given . . . to the specific r e a s o n a b le inferences which he is entitled to draw from the facts in light of his e x p e r ie n c e ." Terry, 88 S.Ct. at 1883. "Although an officer's reliance on a mere h u n c h is insufficient to justify a stop, the likelihood of criminal activity need not r is e to the level required for probable cause, and it falls considerably short of s a t is fy in g a preponderance of the evidence standard." Arvizu, 122 S.Ct. at 751 (in t e r n a l citations and quotation marks omitted).7 Probable cause exists where the facts and circumstances within an officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed and that evidence bearing on that offense will be found in the place to be searched. Safford Unified Sch. Dist. No. 1 v. Redding, 129 S.Ct. 2633, 2639 (2009). 7 16 Case: 08-41063 Document: 00511174826 Page: 17 Date Filed: 07/15/2010 No. 08-41063 2. Reasonable Suspicion in Dortch P a c k contends that our opinion in Dortch established that extreme n e r v o u s n e s s and inconsistent stories are not enough to create reasonable s u s p ic io n of drug trafficking. This argument implies that a police officer's r e a s o n a b le suspicion must be directed toward a particular crime. While we a g r e e that Dortch essentially stands for what Pack argues it does, we think that t h e portions of Dortch on which Pack would have us rely were abrogated by our e n banc opinion in Brigham. Therefore, we decline to use Dortch to analyze P a c k 's case. I n Dortch, the defendant was stopped by the police for tailgating the v e h ic le in front of him. 199 F.3d at 195. The police determined that the d e fe n d a n t 's vehicle was rented and that the rental papers did not list either the d e fe n d a n t or his passenger as an authorized driver. Id. The defendant and the p a s s e n g e r gave conflicting answers about their relationship to the person the r e n t a l agreement named as being the authorized driver. Id. at 196. Although t h e defendant claimed to have spent the last two days in Houston, the rental p a p e r s revealed to the police that the car had been rented the day before the stop in Pensacola, Florida. Id. The police also noted that the defendant seemed n e r v o u s . Id. at 199. Based on these observations, the police called a canine unit t o the scene and, in waiting for it to arrive, detained the defendant beyond the "The probable cause requirement does `not demand any showing that such a belief is correct or more likely true than false.'" United States v. Antone, 753 F.2d 1301, 1304 (5th Cir. 1985) (quoting Texas v. Brown, 103 S.Ct. 1535, 1543 (1983)). See also, e.g., Haggerty v. Texas Southern University, 391 F.3d 653, 656 (5th Cir. 2004) (probable cause "requires more than a bare suspicion but less than a preponderance of evidence"); United States v. Watson, 273 F.3d 599, 602 (5th Cir. 2001) (same); United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (probable cause "is something more than bare suspicion, but need not reach the fifty percent mark."). 17 Case: 08-41063 Document: 00511174826 Page: 18 Date Filed: 07/15/2010 No. 08-41063 t im e needed to investigate the initial traffic offense. See id. at 196. When the c a n in e unit arrived, the police found drugs on the defendant's person. Id. at 196. The defendant moved to suppress this evidence on Fourth Amendment grounds, a n d the district court denied his motion. On review, a panel of this court reversed, with one judge dissenting. Id. a t 203. The panel held that detaining the defendant beyond the time needed to r u n routine checks to investigate the initial traffic infraction was a violation of h is constitutional rights, because there had been no reasonable suspicion that h e was trafficking in drugs. Id. at 199. The panel held that the suspicious facts t h e police had observed "gave rise only to a reasonable suspicion that the car m ig h t have been stolen," not that the defendant was trafficking in drugs. Id. In o t h e r words, the panel in Dortch held (1) that in order to detain a suspect p e n d in g the arrival of a canine unit, the police had to have reasonable suspicion t h a t the suspect was engaged in drug trafficking, and (2) that nervousness, in c o n s is t e n t stories, and a rental car that was being driven without its a u t h o r iz e d driver did not add up to reasonable suspicion of drug trafficking. It is hard to reconcile our en banc opinion in Brigham with the panel's h o ld in g in Dortch. See Brigham, 382 F.3d at 517 (DeMoss, J., dissenting); C h a r le s F. Baird & Holly L. Black, Criminal Procedure--Fourth Amendment, 37 T e x . Tech. L. Rev. 729, 747 (2005) ("Judge Jones confessed in her dissent to the p a n e l opinion [in Brigham] that she believed Dortch, Jones, and Santiago were w r o n g ly decided and should be overruled. As the author for the en banc's m a jo r it y opinion, she essentially accomplished her desired result."). The factual s it u a t io n in Brigham was very similar to Dortch's. In Brigham, the defendant w a s stopped for tailgating a vehicle. 382 F.3d at 504. The defendant's vehicle w a s a rental car that he was not authorized to drive, and the authorized driver 18 Case: 08-41063 Document: 00511174826 Page: 19 Date Filed: 07/15/2010 No. 08-41063 w a s not one of the passengers. Id. The defendant appeared to be extremely n e r v o u s , and the police received inconsistent stories when they questioned the o c c u p a n t s of the vehicle. Id. at 504­05. The police did not run their routine c o m p u te r checks until after the occupants had been questioned at some length. See id. The checks revealed that one of the passengers had given the police a fa k e identification card and a false name. Id. at 505. Due to the length of the q u e s t io n in g that took place before the routine computer checks were run, the t o t a l detention exceeded the time needed to investigate the initial traffic in fr a c tio n . See id. A search of the vehicle produced illegal narcotics. Id. The d e fe n d a n t moved to suppress the evidence on Fourth Amendment grounds, and t h e district court denied the motion. Id. On appeal, a panel of this court r e v e r s e d , holding that the defendant's Fourth Amendment rights had been v io la t e d , because the police had detained him beyond the time needed to in v e s t ig a t e the traffic infraction by questioning him at length about matters not d ir e c t ly related to the traffic infraction before running their routine computer c h e c k s . Id. at 505­06. We reviewed the panel decision en banc and affirmed the district court. Id. at 512. Our en banc opinion characterized Dortch as having established only t h a t the police could not detain the occupants of a vehicle beyond the time n e e d e d to investigate the initial traffic violation unless there was reasonable s u s p ic io n of additional criminal activity. See id. at 509­10. We then held that t h e Fourth Amendment did not require the police to initiate their routine checks b e fo r e asking basic questions of the occupants of a vehicle. Id. at 508, 511. We a ls o noted that the passengers' conflicting answers to these basic questions, w h i c h caused the questioning to become so lengthy, had been beyond the in v e s t ig a t in g officer's control. Id. at 510. 19 As Judge DeMoss noted in his Case: 08-41063 Document: 00511174826 Page: 20 Date Filed: 07/15/2010 No. 08-41063 d is s e n t in g opinion, we did not expressly address Dortch's requirement that the p o lic e have reasonable suspicion of a specific crime in order to justify a d e t e n t io n . See id. at 517 (DeMoss, J., dissenting) ("[T]he detention's scope must b e strictly tied to the particularized suspicion justifying the detention in the first p la c e . Dortch, 199 F.3d at 199. The majority openly disregards these r e q u ir e m e n t s and simply concludes that [the police] had reasonable s u s p ic io n -- b u t never says of what."). Instead, we found that the actions taken b y the police "were reasonable under the circumstances and the detention as a w h o le was reasonable. . . . `[t]he absence of the authorized driver, the in c o n s is t e n t explanation as to the trip to Houston, and {the passenger's} p r e s e n t a t io n of a fictitious I.D., taken together, justified {the police officers'} c o n t in u e d detention of the defendants.'" Brigham, 382 F.3d at 509 (material in b r a c k e t s original; material in braces added). The en banc majority did not c o n t e s t the dissent's assertion that it had ignored Dortch's requirement of " p a r t ic u la r iz e d suspicion" of a specific crime. See id. at 507­12. I n Dortch, similar facts8 had not been sufficient to establish reasonable s u s p ic io n that justified detaining the defendant. Instead, the Dortch panel had h e ld that its facts suggested only that the vehicle had been stolen, not that the d e fe n d a n t was trafficking in drugs. See Dortch, 199 F.3d at 199. Therefore, the D o r tc h majority had reasoned, the defendant should have been released after the r o u t in e computer checks revealed that the vehicle had not been stolen. Id. In B r ig h a m , however, we held that similar facts allowed the police to investigate 8 The only notable difference between the facts articulated as the bases for the officers' suspicions in Dortch and Brigham was the use of a fake driver's license in Brigham. This cannot account for the difference in the outcomes of the two cases, because the use of a fake driver's license could not have provided any additional "particularized suspicion" of drug trafficking under the logic of Dortch. 20 Case: 08-41063 Document: 00511174826 Page: 21 Date Filed: 07/15/2010 No. 08-41063 n o t only the stolen car theory, but also the possibility that the occupants were c a r r y in g contraband. See Brigham, 382 F.3d at 509 & n.8. It did not matter t h a t there was no direct evidence that suggested the occupants were carrying c o n t r a b a n d . See id. The facts suggested that something illegal was afoot, so the p o lic e were entitled, as long they acted with reasonable diligence, to pursue s e v e r a l plausible theories in attempting to resolve the suspicion that reasonably h a d been created by the absence of the authorized driver, the inconsistent s t o r ie s , the nervousness, and the presentation of a fake identification card. See id . As Judge DeMoss noted in his dissent, the majority reached its finding of r e a s o n a b le suspicion in Brigham by discarding Dortch's requirement of " p a r t ic u la r iz e d suspicion" of a specific crime. See Brigham, 382 F.3d at 517 (D e M o s s , J., dissenting). Therefore, we hold that Brigham should be read as h a v in g abrogated Dortch's requirement of "particularized suspicion" of a specific c r im e , in the sense of something like or generally equivalent to direct evidence o f a particular, specific offense.9 A u t h o r it y from other circuits supports the finding of reasonable suspicion in the absence of something like or generally equivalent to direct evidence of a s p e c ific particular crime. In United States v. Vasquez, the Tenth Circuit held t h a t "objectively reasonable, articulable suspicion of some illegal activity beyond t h e traffic violation" existed (emphasis added), warranted the detention of a v e h ic le 's driver pending the arrival of a canine unit, where the driver had a While the Dortch majority never used the phrase "direct evidence" in its opinion, we think this is the key difference between its reasoning and the reasoning of our en banc majority in Brigham. If the police in Dortch had noticed drug paraphernalia on the floorboard of the vehicle or smelled the odor of narcotics when the driver rolled down his window, the Dortch majority likely would have found that there was reasonable suspicion of drug trafficking, just as it found that there was reasonable suspicion of car theft based on the fact that the authorized driver of the vehicle was not present. 9 21 Case: 08-41063 Document: 00511174826 Page: 22 Date Filed: 07/15/2010 No. 08-41063 t r a ffic citation in his name from another state which reflected his driver's license n u m b e r but did not have his driver's license itself, the vehicle's registration was n o t in his name, and he stumbled over questions about his alleged girlfriend. 555 F.3d 923, 929 (10th Cir.), cert. denied, 130 S.Ct. 263 (2009). In United States v . Ehrmann, the Eighth Circuit held that there was "`a reasonably articulable s u s p ic io n for believing' criminal activity [was] afoot" that justified detaining the o c c u p a n t s of a vehicle pending the arrival of a canine unit where the passenger d id not look up from his computer when the officer approached the car, the d r iv e r claimed to be driving from Dallas to Phoenix with no purpose other than " t o hang out," the driver was vacationing during a time he claimed to be u n e m p lo y e d , the driver initially consented to a search but then reneged on the g r o u n d that the police needed to ask his passenger for permission to search, the p a s s e n g e r was squirming and trembling with nervousness, and the passenger's e y e b r o w twitched when he was asked if he was transporting drugs. 421 F.3d 7 7 4 , 780­81 (8th Cir. 2005) (quoting United States v. Beck, 140 F.3d 1129, 1134 (8 t h Cir. 1998)). We also note that Brigham's approach seems to be more consistent with t h e Supreme Court's opinions than Dortch's above referenced "particularized s u s p ic io n " of a specific crime requirement was. While the Court clearly requires t h e police to be able to articulate a "particularized . . . basis" for suspecting w r o n g d o in g , it has often spoken of the wrongdoing itself in general terms. Arvizu, 122 S.Ct. at 750. In Brown v. Texas, 99 S.Ct. 2637 (1979), the Court s t a t e d that it "required . . . officers to have a reasonable suspicion, based on o b je c t iv e facts, that the individual [detained for questioning] is involved in c r im in a l activity." Id. at 2641. The Court faulted the police in Brown for stating t h a t the situation in an alley "looked suspicious" but being "unable to point to 22 Case: 08-41063 Document: 00511174826 Page: 23 Date Filed: 07/15/2010 No. 08-41063 a n y facts supporting that conclusion." Id. This suggests that the Court would h a v e upheld the detention in Brown if the police had been able to articulate s p e c ific facts that supported their belief that there was something illegal afoot in the alley, even if they could not link those facts to a particular specific crime. Another example is found in United States v. Arvizu, where the Court stated t h a t "the Fourth Amendment is satisfied if the officer's action is supported by r e a s o n a b le suspicion to believe that criminal activity may be afoot . . . ." 122 S .C t. at 750 (internal quotation marks omitted). Requiring police to have p a r tic u la r iz e d facts that support a finding that "criminal activity may be afoot" is different from requiring the police to articulate particularized facts that s u p p o r t a finding that a particular specific crime is afoot. We think the latter a p p roa ch , as in Dortch's, referenced "particularized suspicion" requirement, goes b e y o n d reasonable suspicion by in substance virtually requiring direct evidence o r the substantial equivalent thereof and imposes a requirement that is too close t o probable cause. Cf. United States v. Sokolow, 109 S.Ct. 1581, 1585 (1989) (" W e have held that probable cause means `a fair probability that contraband or e v id e n c e of a crime will be found,' and the level of suspicion required for a Terry s t o p is obviously less demanding than that for probable cause." (quoting Illinois v . Gates, 103 S.Ct. 2317, 2332 (1983)) (internal citations omitted)). We note that some of our panel opinions after Brigham contain language, e s s e n t ia lly dicta, seemingly endorsing the Dortch version of "particularized s u s p ic io n " in situations where there was not established reasonable suspicion of a n y sort of criminal conduct which further on the spot investigation might clear u p . See United States v. Jenson, 462 F.3d 399, 405 (5th Cir. 2006) (". . . the g o v e r n m e n t does not present adequate evidence of a nexus between Jenson's a lle g e d ly suspicious behavior and any specific criminal activity."); United States 23 Case: 08-41063 Document: 00511174826 Page: 24 Date Filed: 07/15/2010 No. 08-41063 v . Cavitt, 550 F.3d 430, 438 (5th Cir. 2008) ("[T]he Government must establish s o m e nexus between a specific criminal activity and [the defendant's] q u e s t io n a b le license and ambitious itinerary.").1 0 We do not view that dicta in t h e s e opinions as binding precedent to the extent that their language might be r e a d to require that police have "particularized suspicion" based on essentially d ir e c t evidence of a particular specific crime in order to form the "reasonable s u s p ic io n " needed to justify a detention. c o n t r a r y on that matter. H o w e v e r , our holding that Brigham abrogated Dortch's "particularized s u s p ic i o n " requirement does not allow police officers to detain an individual in d e fin it e ly , fishing for evidence of every conceivable crime that might explain t h e suspicious facts they articulate as having created their reasonable suspicion. This limitation follows from the fact that both the length of the detention and the s c o p e of the investigation to be conducted which may justify the detention r e m a in subject to a "reasonableness" requirement under Brigham and Supreme C o u r t precedent. See Ohio v. Robinette, 117 S.Ct. 417, 421 (1996) ("We have long h e ld that the `touchstone of the Fourth Amendment is reasonableness.'" (quoting F lo r id a v. Jimeno, 111 S.Ct. 1801, 1803 (1991))); Brigham, 382 F.3d at 507 ("The c o r r e c t analysis requires district courts to consider the facts and circumstances o f each case . . . to determine whether the actions taken by the officers, including t h e length of the detention, were reasonable under the circumstances."). See also We conclude that Brigham is to the In contrast, United States v. Fishel, 467 F.3d 855 (5th Cir. 2006), is an example of a panel opinion from this court written after Brigham that applied the Brigham analysis. In Fishel, we found that extreme nervousness, an inconsistent story, and an expired driver's license created reasonable suspicion sufficient to detain the defendant pending the arrival of a canine unit, despite the lack of any more direct evidence that he was trafficking in drugs. Fishel, 467 F.3d at 856­57. 10 24 Case: 08-41063 Document: 00511174826 Page: 25 Date Filed: 07/15/2010 No. 08-41063 S h a r p e , 105 S.Ct. at 1575 ("[W]e consider it appropriate to examine whether the p o lic e diligently pursued a means of investigation that was likely to confirm or d is p e l their suspicions quickly, during which time it was necessary to detain the d e fe n d a n t ." ); Brigham, 382 F.3d at 506 ("Courts . . . inquire whether the officer's s u b s e q u e n t actions were reasonably related in scope to the circumstances that ju s tifie d the stop."). Therefore, while we interpret Brigham's abrogation of Dortch's in t e r p r e t a t io n of the "particularized suspicion" requirement as indicating that t h e police do not have to observe the equivalent of direct evidence of a particular s p e c ific crime in order to detain a lawfully stopped individual to investigate w h e r e there is reasonable suspicion of criminal activity on his part, we also hold t h a t Brigham requires both the scope and length of the officer's investigation to b e reasonable in light of the facts articulated as having created the reasonable s u s p ic io n of criminal activity. In order for the scope of an officer's detention for in v e s t ig a t io n to be reasonable in light of the facts having created the reasonable s u s p ic io n , each crime he investigates should, if established, be reasonably likely t o explain those facts.11 Thus, under the facts of Brigham, it would have been unreasonable to detain the defendant there to question him about, for example, possible criminal violations of the Whaling Convention Act of 1949, 16 U.S.C.A. § 916 (2000) (Whaling Convention). This would have exceeded the reasonable scope of the police officer's investigation, even though he had reasonable suspicion that criminal activity was afoot, because a criminal violation of the Whaling Convention is one of the last crimes that a reasonable person would expect to be a likely cause of the suspicious behavior in Brigham. That such an inquiry would also violate Dortch's version of the "particularized suspicion" requirement does not validate the "particularized suspicion" approach, because Brigham's reasonableness requirement is a broader standard than Dortch's "particularized suspicion" requirement. While every violation of Brigham's reasonableness requirement would also violate Dortch's "particularized suspicion" requirement, not every violation of Dortch's "particularized suspicion" requirement would violate Brigham's reasonableness requirement. 11 25 Case: 08-41063 Document: 00511174826 Page: 26 Date Filed: 07/15/2010 No. 08-41063 T o summarize, we interpret our en banc opinion in Brigham as having r e t u r n e d this court's approach to analyzing purported violations of the Fourth A m e n d m e n t to the status quo ante Dortch. After Brigham, we do not find that a detention during a valid traffic stop violates the detainees' Fourth Amendment r ig h t s where it exceeds the amount of time needed to investigate the traffic in fr a c tio n that initially caused the stop, so long as (1) the facts that emerge d u r in g the police officer's investigation of the original offense create reasonable s u s p i c i o n that additional criminal activity warranting additional present in v e s t ig a t io n is afoot, (2) the length of the entire detention is reasonable in light o f the suspicious facts, and (3) the scope of the additional investigation is r e a s o n a b le in light of the suspicious facts, meaning that it is reasonable to b e lie v e that each crime investigated, if established, would likely explain the s u s p ic io u s facts that gave rise to the reasonable suspicion of criminal activity. 3. The Sufficiency of Inconsistent Statements P a c k argues that our opinions in Jones and Santiago established that in c o n s is t e n t stories are insufficient to create reasonable suspicion. Our opinions in United States v. Estrada and United States v. Gonzalez contain dicta that s u p p o r t this argument. Estrada, 459 F.3d at 631; Gonzalez, 328 F.3d 755, 758 (5 t h Cir. 2003). Nevertheless, we find that this argument is without merit, (1) b e c a u s e Pack's inconsistent story is not the only factor that Worley cited as h a v in g caused him to suspect that Pack was engaged in criminal activity, (2) b e c a u s e we believe that these cases rely on the portion of Dortch that we have h e ld was abrogated by our en banc opinion in Brigham, and (3) because the in c o n s is t e n t stories of Pack and Williamson here are properly distinguished from t h e minor or irrelevant inconsistencies found in the cases Pack would have us fo llo w . 26 Case: 08-41063 Document: 00511174826 Page: 27 Date Filed: 07/15/2010 No. 08-41063 T h e Supreme Court requires lower courts to look at "the totality of the c ir c u m s t a n c e s " in evaluating whether or not the police had reasonable suspicion o f criminal activity. Arvizu, 122 S.Ct. at 750. The Court has interpreted this r e q u ir e m e n t as prohibiting the method of "divide-and-conquer analysis," under w h ic h a court examines and rejects individually each of a number of factors that t h e police cite as having created reasonable suspicion, instead of examining the fa c t o r s jointly. See id. at 751. Thus, it is improper for a court to refuse to find t h a t reasonable suspicion existed because each of a set of circumstances has an in n o c e n t explanation. See id. The proper question is whether or not the entire s e t of circumstances, taken together, created reasonable suspicion of criminal a c t iv it y . See id. T h e Government does not allege that the only circumstance that created r e a s o n a b le suspicion in Worley's mind was Pack's inconsistent story. It alleges t h a t Pack's extreme, physically manifested, nervousness, his and Williamson's c o n flic tin g stories, and the fact that he and Williamson were traveling along a d r u g trafficking corridor combined to form reasonable suspicion in Worley's m in d . Moreover, in Jones and Santiago, panels of this court found that there was n o reasonable suspicion of drug trafficking after applying Dortch's version of the " p a r t ic u la r iz e d suspicion" approach, comparing the facts of their cases against t h e facts of Dortch, and concluding that the facts in Dortch had been more s u s p ic io u s . See Jones, 234 F.3d at 241 ("In Dortch, we found no reasonable s u s p ic io n of drug trafficking . . . . Compared to the facts in Dortch, [the police o ffic e r 's ] bases for reasonable suspicion in this case are even less suggestive of r e a s o n a b le suspicion and are at best trivial."); Santiago, 310 F.3d at 342 (citing D o r tc h for the proposition that "conflicting stories from the driver and passenger 27 Case: 08-41063 Document: 00511174826 Page: 28 Date Filed: 07/15/2010 No. 08-41063 a b o u t from where they traveled and the fact that neither were [sic] listed as a u t h o r iz e d drivers on the rental agreement and the driver's nervousness did not g iv e rise to reasonable suspicion of drug trafficking to support a continued d e t e n t io n after the completion of a computer check"). Because the more s u s p ic io u s facts of Dortch had not been enough to establish reasonable suspicion o f drug trafficking in Dortch, the panels in Jones and Santiago found that the e v id e n c e was necessarily insufficient to establish reasonable suspicion of drug tr a ffic k in g in their cases. See Jones, 234 F.3d at 241; Santiago, 310 F.3d at 342. However, as noted, that aspect of Dortch was abrogated by our en banc opinion in Brigham. Our opinions in Estrada and Gonzalez contain dicta stating that "[m]ere `u n e a s y feelings' [on the part of the police] and inconsistent stories between a d r iv e r and a passenger do not constitute articulable facts that support a r e a s o n a b le suspicion of drug trafficking." See Estrada, 459 F.3d at 631; G o n z a le z , 328 F.3d at 758. However, this language was derived from our holding in Santiago. See Estrada, 459 F.3d at 631 (citing Santiago, 310 F.3d at 338­39); G o n z a le z , 328 F.3d at 758 (citing Santiago, 310 F.3d at 338­39). Therefore, it w a s indirectly based on Dortch and also fails to survive Brigham as a correct s t a t e m e n t of law. A d d it io n a lly , we note that the inconsistencies in the defendants' stories in J o n e s , Santiago, and Estrada were all relatively minor, compared to the in c o n s is t e n c ie s between Pack's and Williamson's stories.1 2 In Jones, the driver The inconsistencies in Gonzalez were major, and they played a large role in establishing the reasonable suspicion that we found had existed in that case. See 328 F.3d at 757­58. Nevertheless, the Gonzalez panel cited Santiago for the proposition that it would not have been proper to find reasonable suspicion based on the inconsistent statements alone. See id at 758. Instead, it found that there was reasonable suspicion 12 28 Case: 08-41063 Document: 00511174826 Page: 29 Date Filed: 07/15/2010 No. 08-41063 o f the stopped vehicle indicated that his passenger was his uncle and that they w e r e going to Memphis for "a couple of weeks" to do some work for "Street I n s t it u t e Records." 234 F.3d at 237. In response to similar questioning, the p a s s e n g e r indicated that the driver was his son-in-law's brother and that they w e r e going to Memphis for "about a week" to promote an album produced by " S a g e Stone Entertainment." Id. The driver and the passenger offered to show t h e police proof that Sage Stone Entertainment and Street Institute Records had c o lla b o r a t e d on the album, but the police refused to read the album's label. Id. a t 238. The driver also clarified later in his questioning that his passenger was r e a lly his brother's father-in-law. Id. Such inconsistencies were minor and r e c o n c ila b le . It made sense that a person might refer to his brother's father-inla w as an uncle. It also made sense that two studios would collaborate on the s a m e album. The discrepancy in the amount of time the two planned to be in M e m p h is might have resulted from a misunderstanding, from the fact that they h a d not set a firm schedule, or from the fact that the actual time was something lik e ten days. In Santiago, the defendant indicated that the woman and two children in t h e stopped vehicle were his wife and children. 310 F.3d at 338. When he was c o n fr o n t e d with the fact that his name was listed on the vehicle's registration a lo n g with the name of a different woman, the defendant looked extremely s u r p r is e d and attempted to convince the police that the passenger was his exw ife and that the woman on the vehicle's registration was his current wife. Id. based on a combination of factors: "Gonzalez appeared very nervous, was hesitant in answering the most basic questions about his travel plans, lied about why he didn't have a driver's license, was 500 miles away from the road leading to his claimed destination, was on a road associated with drug trafficking, and had been arrested for drug trafficking in the past." See id. Gonzalez, like Santiago and Jones, was decided before Brigham. 29 Case: 08-41063 Document: 00511174826 Page: 30 Date Filed: 07/15/2010 No. 08-41063 a t 339. The defendant claimed that they were going to Atlanta for a week, while t h e woman in the vehicle claimed that they were going to Atlanta for two or t h r e e weeks. Id. at 338. The vehicle had California license plates and was s t o p p e d in Louisiana. Id. at 337­38. While the inconsistencies in Santiago were m o r e serious than those in Jones, they were still reasonably reconcilable. It was p o s s ib le that the defendant was telling the truth about the identity of the woman in his car. It was also possible that the discrepancy in the group's travel dates w a s due to a mis-communication or due to the woman including the driving time fr o m California to Atlanta in her estimate of how long the group would be "in A t la n t a ." Estrada contains an archetypical example of a minor inconsistency. The o w n e r of the stopped vehicle stated that he had bought the vehicle a month b e fo r e the stop occurred, and the owner's brother said he thought the owner had b o u g h t it three months before the stop. Estrada, 459 F.3d at 629. It was e n tir e ly reasonable for someone who did not own the vehicle not to know when h is brother had bought it. The inconsistencies in Jones, Santiago and Estrada were simply too minor a n d insignificant to give rise to any reasonable suspicion of any criminal activity. I n contrast to the inconsistencies in Santiago, Jones, and Estrada, the in c o n s is t e n c ie s between Pack's and Williamson's stories were neither r e c o n c ila b le nor minor. Among other things, the two could not agree on which m a jo r city (many miles apart) they had spent the last several days visiting or w h o m they had visited there. As the video of the stop recorded Worley telling W illia m s o n , their stories were "completely different." Therefore, neither Jones, S a n tia g o nor Estrada can be applied properly to the situation in Pack's case. Finally in this connection, we note that under Texas law it is a crime to, 30 Case: 08-41063 Document: 00511174826 Page: 31 Date Filed: 07/15/2010 No. 08-41063 w it h intent to deceive, knowingly make a material, false statement to an in v e s t ig a t in g officer. Section 37.08 of the Texas Penal Code provides that: " (a ) A person commits an offense if, with intent to deceive, he k n o w in g ly makes a false statement that is material to a criminal i

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?