United States v. Williams, Jr., No. 14-4049 (4th Cir. 2015)
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Defendant appealed his conviction for possession with intent to distribute crack cocaine, contending that the district court erred by denying his motion to suppress evidence seized during a traffic stop. During the traffic stop, a deputy sheriff issued defendant a written warning and defendant subsequently refused to consent to a vehicle search. A dog sniff was conducted and crack cocaine seized from the vehicle. The court concluded that the officers did not have a reasonable, articulable suspicion of criminal activity during the traffic stop. Therefore, extending the otherwise-completed stop of the vehicle to conduct a dog sniff violated the Fourth Amendment. Accordingly, the court vacated and remanded for further proceedings.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4049 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. CHARLES WILLIAMS, JR., Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge; Thomas D. Schroeder, District Judge. (1:12-cr-00264-WO-1) Argued: September 16, 2015 Decided: December 14, 2015 Before KING, KEENAN, and FLOYD, Circuit Judges. Vacated and remanded by published opinion. Judge King wrote the opinion, in which Judge Keenan and Judge Floyd joined. ARGUED: Amber Rae Will, COLLEGE OF WILLIAM & MARY, Williamsburg, Virginia, for Appellant. Terry Michael Meinecke, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Gregory Davis, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina; Patricia E. Roberts, Brittany Sadler, Andrew L. Steinberg, WILLIAM & MARY SCHOOL OF LAW, Williamsburg, Virginia; Tillman J. Breckenridge, Thomas W. Ports, Jr., REED SMITH LLP, Washington, D.C., for Appellant. Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. KING, Circuit Judge: Charles Williams, Jr., was convicted and sentenced in the Middle District of North Carolina for possessing with intent to distribute crack cocaine. In this appeal, Williams pursues a single contention — that the district court erred by denying his motion to suppress Interstate 85. evidence During that seized during stop, a a traffic deputy stop sheriff on issued Williams a written warning, and Williams thereafter refused to consent to a vehicle search. The police then conducted a dog sniff of the car and seized crack cocaine from it. maintains that contravened the extending Fourth the traffic Amendment should have been suppressed. and stop for that the the Williams dog crack sniff cocaine As explained below, we vacate and remand. I. A. While traveling by rental car through central North Carolina in the early hours of February 13, 2012, Williams and his girlfriend Elisabeth MacMullen were stopped for speeding by a deputy sheriff. After the deputy issued Williams a written warning and returned his documentation, another deputy conducted a dog sniff of the rental vehicle. The dog alerted, and the ensuing search revealed crack cocaine in the vehicle’s trunk. 2 Williams and MacMullen (together, the “Defendants”) were then arrested. Five months thereafter, on July 30, 2012, the federal grand jury in Greensboro indicted the Defendants for possessing with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The Defendants moved separately to suppress the seized evidence and, on November 20, 2012, the district court conducted an evidentiary hearing (the “initial hearing”). At the initial hearing, the prosecution presented the testimony of the deputies, Justin Russell and Jerry Soles, as well as a video of the traffic stop that was recorded from Russell’s patrol car (the “Russell Video”). By its December 11, 2012 opinion, the court denied the motions to suppress. memorandum See United States v. Williams, No. 1:12-cr-00264 (M.D.N.C. Dec. 11, 2012), ECF No. 27 (the “First Opinion”). About three months later, the government produced a second video of the traffic stop, which had been recorded from Deputy Soles’s patrol car (the “Soles Video”). The Soles Video directly contradicted an important aspect of the prosecution’s evidence at the initial hearing. The Defendants thus sought reconsideration of the suppression denial, asserting that the Soles Video undermined the First Opinion. the court conducted a “reconsideration hearing”). second On March 21, 2013, evidentiary hearing (the Deputies Russell and Soles again 3 testified and, on April 9, 2013, the court issued a new opinion, declining again to suppress the evidence. See United States v. Williams, No. 1:12-cr-00264 (M.D.N.C. Apr. 9, 2013), ECF No. 45 (the “Superseding Opinion”). On April 17, 2013, a jury convicted Williams of the offense charged, but acquitted MacMullen. district court prison. Williams timely noticed this appeal, and we possess sentenced January to Williams On 10, eighty-four 2014, the months in jurisdiction pursuant to 28 U.S.C. § 1291. B. 1. The pertinent facts are for the most part undisputed. As spelled out herein, they are drawn from the First Opinion, the Superseding Opinion, and other aspects of the record. Deputies Russell and Soles were separately patrolling I-85 near Lexington, North February 13, 2012. speeding southbound Carolina, during the early hours of Just after midnight, Soles observed two cars and traveling close together. At about 12:37 a.m., Soles stopped the lead vehicle, driven by Williams’s brother, and Russell stopped the second vehicle, a Hyundai rental car driven by Williams with MacMullen as the passenger. 1 1 The times of day specified with respect to the interactions of Williams with Deputies Russell and Soles are drawn from the time display on the Russell Video. 4 After stopping the Hyundai, Deputy Russell informed Williams that he was going 80 mph in a 70-mph zone and requested his driver’s license and vehicle registration. provided a New York license and the rental Williams then agreement. The agreement reflected that MacMullen had rented the Hyundai from Hertz in Totowa, New Jersey, on February 10, 2012. According to the agreement, the car was to be returned there by 2:30 p.m. on February 13, 2012 (that afternoon). Russell requested that Williams exit the Hyundai and sit in his patrol car while he checked Williams’s documents. Williams did so, and MacMullen remained in the Hyundai. Inside the patrol car, Deputy Russell engaged Williams in conversation as the license check was conducted. Williams related that he and MacMullen had stopped at his mother’s home in Virginia Beach and were traveling to Charlotte — about sixty miles southwest of the traffic stop on I-85 — to visit his brother for a couple alcohol and asked then days. Williams response, Williams Russell of said asked he Deputy if had Russell he had been consumed Soles, who thought a had he smelled drinking. beer with stopped In supper. the lead vehicle less than 100 yards away, to administer a breathalyzer test to Williams. As a result, Soles cut short his traffic stop of the lead vehicle, gave Williams’s brother a verbal warning, and went to assist Russell. At approximately 12:45 a.m., Soles 5 moved his patrol car, containing the drug dog Dakota, to a point along the shoulder of I-85 behind Russell’s patrol car. Arriving at Russell’s patrol car, Soles greeted Williams through the open front-passenger-side window at about 12:46 a.m. Soles administered the breathalyzer test as Williams sat in Russell’s patrol car. Deputy Russell then approached the Hyundai to speak with MacMullen. Russell asked MacMullen about consumption and the couple’s travel plans. Williams’s alcohol She responded that Williams had had very little to drink and that they were on their way to Charlotte. Russell asked why they were going to Charlotte, and MacMullen responded, “I don’t know, we are just on vacation.” See First Opinion 4. Back at Deputy Russell’s patrol car, Deputy Soles continued to talk with Williams breathalyzer test. while awaiting the results of the Williams told Soles that he was on vacation and was going to visit his brother in Charlotte. He also told Soles that the driver of the lead vehicle was his brother and that the two vehicles were traveling together. At the initial hearing, Soles testified that Williams’s statement contradicted 6 the driver of the lead vehicle, who had told Soles that “he wasn’t traveling with anybody.” When Deputy Russell See J.A. 75. 2 returned to his patrol car, Deputy Soles informed him that Williams had passed the breathalyzer test. While Soles listened, Russell advised Williams that he had passed the test and would receive a written warning for speeding. When Russell requested an address from Williams to complete the written warning, Williams gave the post office box address of his place of employment in New York, which differed from the New York post office box address on his driver’s license. As Deputy Russell was writing the warning, Deputy Soles asked Williams where he lived. Williams responded that he lived in both New York and New Jersey and that he and MacMullen had a child and lived together. When Soles asked where they were headed, Williams said, “Charlotte.” See First Opinion 4. In response to a question about their planned stay in Charlotte, Williams said that they would stay at a Wyndham hotel and that the length of their stay would depend on how his brother’s wife acted. When Russell pointed out that the rental car was to be 2 Our citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal. 7 returned in New Jersey that very afternoon, Williams said he would renew the rental agreement in Charlotte. Deputy Russell completed the written warning and gave it to Williams exiting at the question. asked, 12:54:59 patrol After “Nothing a.m. car, Seconds Russell Williams illegal in asked responded the later, if he Williams could affirmatively, car?” Williams responded that there was not. as See First was pose a Russell Opinion 5. As Russell and Williams exited the patrol car, Russell persisted — again asking Williams if he could equivocated. search the Hyundai — and Williams initially Williams then walked towards the Hyundai, opened the rear-driver-side door, and gestured that the deputies could look inside. Deputy Soles then asked for a clear yes-or-no answer on whether Williams was consenting to a search of the Hyundai. Williams firmly replied, “[N]o.” Id. at 7. Immediately thereafter, at 12:56:22 a.m. — a minute and twenty-three seconds after Deputy Russell issued the written warning — Deputy Soles advised Williams to “hold on” and that a dog sniff would be conducted on the vehicle. First Opinion 7. See J.A. 130; As a result, MacMullen was removed from the car and Soles walked Dakota around it. Dakota alerted at the driver’s side of the trunk after completing a full circle of the vehicle. The dog’s alert was at 12:59:02 a.m. — two minutes and forty seconds after Soles instructed Williams to hold on so that 8 Soles could conduct the dog sniff. Crack cocaine was thereafter found and seized from an unlocked safe in the Hyundai’s trunk. 2. On December Defendants’ 11, motions to 2012, the suppress. district By its court First denied the Opinion, the court explained that “the Government’s argument for a finding of reasonable suspicion” rested on five specific factors: • The Defendants were traveling “in a rental car”; • The Defendants were traveling corridor at 12:37 a.m.”; • “Williams’ stated travel plans with, and would likely exceed, return of the rental car”; • “Williams was unable to provide a permanent home address in New York even though he claimed to live there at least part-time and had a New York driver’s license”; and • “Williams stated that he was traveling with the car ahead of him, yet that car’s driver denied any association with Williams.” See First Opinion 23. 3 “on a known drug were inconsistent the due date for As an alternative ground for denying the suppression motions, the court ruled that the two-minute-andforty-second extension for the 3 dog sniff fell “within the The First Opinion spelled out in paragraph form the factors on which the district court predicated its suppression ruling. We have reformatted those factors into the five foregoing bullet points. 9 general parameters of a de minimis delay that does not offend the Fourth Amendment.” Id. at 32. In late February or early March of 2013 — almost three months after the First Opinion — the prosecution provided the Defendants with the Soles Video, which shows the traffic stop of the lead vehicle. The government explained that it had produced the Soles Video in a tardy fashion because it had only then realized that the stop of the lead vehicle might be relevant. The Soles Video was Brady material, however, and directly contradicted Deputy Soles’s evidence at the initial hearing on the fifth factor identified in the First Opinion. As a result, the the Defendants moved for reconsideration of court’s suppression denial. 3. At the reconsideration hearing on March Defendants relied primarily on the Soles Video. 21, 2013, the The prosecutor, seeking to explain the evidentiary contradictions and sustain the suppression denial, again called both deputies to testify. Deputy Soles acknowledged that his testimony at the initial hearing — that Williams’s brother had denied any association with Williams — was “wrong,” and that he had “made a mistake.” See J.A. 193. From the bench, the district court recognized Soles’s earlier testimony as both “wrong” and “not true.” 10 See id. at 252, 271. Deputy Russell simply reiterated his earlier testimony about stopping the Hyundai for speeding. On April 9, 2013, the district court issued its Superseding Opinion. To the First Opinion’s factual recitation, the Superseding Opinion added the following from the court’s review of the Soles Video. Less than a minute after Deputy Soles radioed Deputy Russell for assistance, Soles stopped the lead vehicle for speeding. 4 Soles asked the driver traveling with the car behind him (the Hyundai). if he was Williams’s brother responded, “[W]e together,” contradicting what Soles had said at the initial hearing. See Superseding Opinion 11. Soles then instructed Williams’s brother to sit in Soles’s patrol car as he conducted a license check. During their conversation in the patrol car, Soles again asked Williams’s brother who was traveling with him. brother and his prior testimony. Williams’s brother responded, “That’s my fiancée,” See id. which further contradicted Soles’s After issuing a verbal warning, Soles advised Williams’s brother that he was free to go. 4 The Superseding Opinion described the exchange that occurred between the deputies immediately prior to the traffic stop. Deputy Soles informed Deputy Russell by radio that he was observing two cars speeding southbound together. Russell responded that he would pull behind Soles, and Soles gave him the license plate information about the Hyundai. Soles then told Russell to “see if you can get a violation on your own, and if not we’ll use one of mine.” See Superseding Opinion 10. Russell responded, “[A]lright.” Id. 11 Because Deputy Soles’s discredited testimony was the basis for the First Opinion’s fifth factor, the Superseding Opinion recited that “the Government’s argument for a finding of reasonable suspicion” depended on only four of the five factors previously identified. See Superseding Opinion 31. The Superseding Opinion recited the four factors and again denied the suppression motions, concluding that those factors, when presented to a reasonable officer, provide reasonable, articulable suspicion that criminal activity may be afoot to justify [Deputy] Soles’ limited detention for the purpose of deploying the drug dog, which was already on the scene. Id. at 32. The court again ruled, in the alternative, that the “dog sniff [fell] within the general parameters of a de minimis delay that does not offend the Fourth Amendment.” Id. at 40. II. A district court’s ultimate determination of a reasonablesuspicion question is assessed de novo. See United States v. Arvizu, 534 U.S. 266, 275 (2002); Ornelas v. United States, 517 U.S. 690, 699 (1996). disturb factual Absent clear error, however, we will not findings made by a district evidentiary hearing on suppression issues. Dire, 680 F.3d 446, 473 (4th Cir. 2012). court after an See United States v. When a district court has denied a motion to suppress, we view the evidence in the 12 light most favorable to the government. See United States v. Watson, 703 F.3d 684, 689 (4th Cir. 2013). III. On appeal, Williams reiterates his contention that the deputies lacked the reasonable suspicion necessary to extend the traffic stop beyond its initial purpose. 5 As the Supreme Court made clear in Illinois v. Wardlow, an officer must possess “a reasonable, articulable suspicion that criminal activity afoot” to execute a brief “investigatory detention.” is See 528 U.S. 119, 123 (2000). The government now concedes that the de minimis ground for denying result, the the suppression prosecutors motions is recognize 5 legally that untenable. their only As a viable The Superseding Opinion specified that the district court would focus only on Deputy Soles’s knowledge in its reasonablesuspicion inquiry because Soles had “decided to conduct the drug dog sniff on his own order, and there is no evidence that Deputy Russell did so or participated in the decision.” See Superseding Opinion 19. For that proposition, the court relied on our explanation in United States v. Massenburg that “the collective knowledge doctrine ‘does not permit [a court] to aggregate bits and pieces of information from among myriad officers.’” Id. (quoting Massenburg, 654 F.3d 480, 493 (4th Cir. 2011)). On appeal, however, Williams and the government both frame the issue in terms of whether the deputies together had reasonable suspicion. We accept the parties’ articulation, but observe that — on this record — it matters not whether we look only to Soles’s knowledge or to the two deputies’ knowledge collectively. 13 contention is that the district court correctly ruled that — on this record — reasonable, articulable suspicion justified the dog sniff of the Hyundai. To that end, they rely solely on the factors identified by the court in the Superseding Opinion. A. 1. Before evaluating the reasonable-suspicion contention, we identify some resolution. Fourth pertinent requirement. detention principles that bear on its A traffic stop constitutes a “seizure” under the Amendment (1996). legal and is thus subject to a reasonableness See Whren v. United States, 517 U.S. 806, 810 Because a traffic stop is more akin to an investigative than a custodial arrest, we analyze the constitutionality of such a stop under the two-prong standard enunciated in Terry v. Ohio, 392 U.S. 1 (1968). Johnson, 555 U.S. 323, 330-31 (2009). See Arizona v. Pursuant thereto, we first determine whether the officer’s reason for the traffic stop was legitimate. 875 (4th Cir. 1992). See United States v. Rusher, 966 F.2d 868, Second, we examine whether the officer’s actions during the seizure were “reasonably related in scope” to the basis for the traffic stop. Id. (internal quotation marks omitted). In April of this year — while this appeal was pending — the Supreme Court decided Rodriguez v. United States, 135 S. Ct. 14 1609 (2015). Rodriguez held that, absent reasonable, articulable suspicion of criminal activity, a detaining officer may not extend an otherwise-completed traffic stop in order to conduct a dog sniff. See id. at 1614-16. that, second under Terry’s prong, the The Court emphasized “[a]uthority for the seizure . . . ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.” Id. at 1614. In other words, to extend the detention of a motorist beyond the time necessary to accomplish a traffic stop’s purpose, the authorities must either possess “reasonable suspicion or receive the driver’s consent.” See United States v. Digiovanni, 650 F.3d 498, 507 (4th Cir. 2011); United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008). 2. With respect to Terry’s first prong — whether the reason for the traffic stop was legitimate — Williams does not dispute that Deputy speeding. Russell On was Terry’s entitled second prong to — stop the whether Hyundai the for officers’ actions were reasonably related in scope to the basis for the traffic stop — it is similarly undisputed that Russell had accomplished the purpose of the stop before Deputy Soles decided to conduct the dog sniff of the Hyundai. did not consent to a search of the vehicle. Furthermore, Williams Thus, the propriety of extending Williams’s detention beyond the completion of the 15 traffic stop turns on whether reasonable, articulable suspicion existed when Soles decided to conduct a dog sniff of the Hyundai. Reasonable standard that suspicion relies is on a the “commonsense, judgment of experienced enforcement officers, “not legal technicians.” United States, 517 marks omitted). U.S. 690, 695 (1996) nontechnical” law See Ornelas v. (internal quotation To support a finding of reasonable suspicion, we require the detaining officer “to either articulate why a particular behavior is suspicious or logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative of some more sinister activity than may appear at first glance.” See United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011). Under the applicable principles, the relevant facts articulated by the officers and found by the trial court, after an appropriate hearing, must “in their totality serve to eliminate a substantial portion of innocent travelers.” See United States v. McCoy, 513 F.3d 405, 413 (4th Cir. 2008). our McCoy decision explained, however, each As articulated fact need not “on its own eliminate every innocent traveler.” Id. Rather, we “must look at the totality of the circumstances of each case to particularized see and whether the objective detaining basis 16 for officer suspecting has a legal wrongdoing.” See United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted). B. With this framework in mind, we briefly address the de minimis contention and then turn to a comprehensive analysis of the reasonable-suspicion question. The prosecution contended in both hearings in the district court that the officers’ nearly three-minute extension of Williams’s — detention after completion of the traffic stop — was for a constitutionally permissible de minimis period of time. In each of its opinions, the district court agreed with that proposition. In so ruling, each opinion relied on our decision in United States v. Farrior, where we recognized that a de minimis extension of the traffic stop — during which an officer conducted a dog sniff of Farrior’s vehicle — was not “a violation of [Farrior’s] Fourth Amendment rights,” regardless of whether the officer possessed reasonable suspicion. See 535 F.3d 210, 220 (4th Cir. 2008). As the government now properly concedes, Rodriguez forecloses the de minimis ground. In rejecting the “de minimis rule” for a dog sniff conducted after a completed traffic stop, the Rodriguez Court distinguished “[h]ighway and those officer practices safety” directed — such as towards ensuring checking drivers’ licenses for outstanding warrants — from those animated by “the 17 Government’s endeavor to detect crime in general or drug trafficking in particular” — such as conducting a dog sniff for evidence of narcotics. See 135 S. Ct. at 1615-16. Put simply, the possibility that a dog sniff might reveal drug possession is not — absent a showing of reasonable, articulable suspicion — a valid basis for extending a traffic stop. Cf. id. at 1615 (“Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.”). C. We thus whether, on turn this to the record, dispositive Deputies issue Russell in and this Soles appeal: had the reasonable, articulable suspicion of criminal activity necessary to extend the traffic stop and conduct the dog sniff of the Hyundai. The district court, for its part, acknowledged that reasonable suspicion “must rest” on four factors: • The Defendants were traveling “in a rental car”; • The Defendants were traveling “on a known drug corridor at 12:37 a.m.”; • “Williams’ stated travel plans were inconsistent with, and would likely exceed, the due date for return of the rental car”; and • “Williams was unable to provide a permanent home address in New York even though he claimed to live there at least part-time and had a New York driver’s license.” 18 See Superseding Opinion 31. We evaluate those factors both separately and in the aggregate, recognizing that our inquiry must account for the “totality of the circumstances,” rather than employ a “divide-and-conquer analysis.” See Arvizu, 534 U.S. at 274. 1. a. The first factor identified in the Superseding Opinion — the Defendants’ use of a rental car — is of minimal value to the reasonable-suspicion evaluation. Neither Deputy Russell nor Deputy Soles explained any connection between use of a rental car and criminal activity. We will nevertheless accept that, as a general proposition, some drug traffickers use rental cars. See, e.g., United States v. Finke, 85 F.3d 1275, 1277 (7th Cir. 1996) (noting that officer was concerned about rental car because he knew “drug couriers often used rental cars to avoid asset forfeiture laws”); United States v. Thomas, 913 F.2d 1111, 1116 (4th Cir. 1990) (“[I]llegal transport of drugs often involves the use of rental cars traveling from source cities such as Miami.”). that the nation’s It is similarly beyond peradventure, however, overwhelming highways majority are of innocent legitimate purposes. 19 rental car travelers drivers with on our entirely b. The second factor relied on in the Superseding Opinion — that the Defendants were traveling “on a known drug corridor at 12:37 a.m.” — is the only factor that, on its face, makes any reference to criminal activity. Similar to traveling in a rental car, however, the number of persons using the interstate highways as drug corridors pales in comparison to the number of innocent travelers on those roads. Furthermore, we are not persuaded by the proposition that traveling south on I-85 late at night helps narrow the identification of travelers to those involved in drug activity. i. Undoubtedly, many drug traffickers use interstate highways such as I-85, but so do many more innocent motorists. Put simply, the interstate highways are the most efficient way to drive between two points in this country, particularly large cities. Thus, although we have recognized that law enforcement officers motorist’s and the use trial of an courts are interstate entitled highway as to a consider factor a in determining reasonable suspicion, we are entirely satisfied that such an observation, standing alone, is entitled to very little weight. See, e.g., Digiovanni, 650 F.3d at 512-13; accord United States v. Santos, 403 F.3d 1120, 1132 (10th Cir. 2005) (observing that prosecution had acknowledged that travel between 20 known drug source and known drug destination was weak factor in reasonable-suspicion analysis). Because there is nothing inherently suspicious about driving at night on an interstate highway, police officers must rely on their training and experience to link interstate-highway travel to more trafficking. specific characteristics of narcotics See, e.g., United States v. Brugal, 209 F.3d 353, 359-60 (4th Cir. 2000) (en banc) (plurality opinion) (observing that officer experience, “testified drug that, couriers fly based to on his Miami knowledge from a and northern destination, such as New York, to obtain drugs, rent a vehicle, and return north with the drugs”); United States v. Foreman, 369 F.3d 776, 784-85 (4th Cir. 2004) (explaining that officer’s experience with drug interdiction showed that particular highway was regular corridor for illegal drugs from New York City area to Tidewater Virginia). Deputies Russell and Soles, however, offered either no evidence in of the suppression hearings linking travel on an interstate highway with drug trafficking. 6 6 At trial, Deputy Soles identified the New York City area as a “source city” for narcotics trafficking. See J.A. 452. He conceded, however, that “any big city [could] be considered a source city.” Id. at 457. The Superseding Opinion did not identify New York as a source city. 21 ii. There is simply no basis on this record for assigning some nefarious significance to the 12:37 a.m. time of the traffic stop. Neither Deputy Russell nor Deputy Soles asserted that drug traffickers have some disproportionate tendency to travel on the interstate highways late at night. for the proposition combination with that other nighttime factors Nor is there support travel identified in — alone the or in Superseding Opinion — is an indicator of drug trafficking. Due to the fact-specific nature of the reasonable-suspicion inquiry, see United States v. Demoss, 279 F.3d 632, 636 (8th Cir. 2002), it would be inappropriate for us to peruse appellate decisions for connections that Deputies Russell and Soles failed to draw. As we observed in Branch, “context matters” in the reasonable-suspicion inquiry because “actions that may appear innocuous at a certain time or in a certain place may very well serve as a harbinger circumstances.” See of 537 criminal F.3d at activity 336. It under different follows that a determination that a certain fact is suspicious in one case does not compel the conclusion that the same fact is suspicious in other cases. See, e.g., United States v. Richardson, 385 F.3d 625, 630 (6th Cir. 2004) (recognizing that, although nervousness has sometimes been utilized in finding reasonable suspicion, “it 22 is an unreliable indicator, especially in the context of a traffic stop”). The Superseding Opinion relied on two Tenth Circuit decisions in deeming the midnight hour of the traffic stop a relevant United factor States in v. its reasonable-suspicion Clarkson, 551 F.3d 1196 analysis. (10th Cir. See 2009); Gallegos v. City of Colo. Springs, 114 F.3d 1024 (10th Cir. 1997). Our examination of those cases illustrates the problem with relying mainly on court decisions, as opposed to testimony from officers in the particular case, to identify certain facts as suspicious. First, the Clarkson decision involved a late- night stop of a vehicle that the police had just seen parked in front of a house that was under surveillance for suspected drug dealing, violent crime, prostitution, and gang activity. 551 F.3d at 1198. After stopping the vehicle, an See officer observed that the passenger appeared to be under the influence of narcotics. Id. at 1199. Second, in the Gallegos case, police officers had responded to calls reporting a “prowler” and an inebriated man arguing with a woman. See 114 F.3d at 1029. Those officers then observed Gallegos, who reeked of alcohol and was “acting in a very unusual fashion.” Id. In each of those decisions, the Tenth Circuit relied on the nighttime hour as one of several factors that — taken together — established reasonable, articulable 23 suspicion of ongoing criminal activity. 114 F.3d at See Clarkson, 551 F.3d at 1202; Gallegos, 1029. We agree that street crime and public drunkenness are plainly more prevalent at night than during the day. By contrast, it is far from self-evident that interstate trafficking night. of This drugs record or other does not contraband make an is more evidentiary common at connection between nocturnal travel and drug trafficking, either alone or in combination with Superseding Opinion. stop of Williams the other factors identified in the Absent such a connection, that the traffic occurred at about 12:37 a.m. does not contribute to a reasonable, articulable suspicion for extending the otherwise-completed traffic stop to conduct a dog sniff. c. The focused Superseding on what Opinion’s the district analysis court of its third characterized factor as the “inconsisten[cy]” between Williams’s travel plans and the due date for return of the rented Hyundai. Williams had advised the deputies that he and his girlfriend were planning to stay in Charlotte for a few days, but the rental agreement reflected that the Hyundai was due to be returned that afternoon in New Jersey. Williams also said that he would extend the rental agreement when he arrived in Charlotte. We therefore assess how the expiring rental agreement, and Williams’s explanation of it, impact the reasonable-suspicion analysis. 24 In the Tenth Circuit’s Santos decision, the defendant had “rented a car in California on January 10, was in Wyoming on January 13, and proposed to drive to New York and back despite a January 17 ‘due date’ in his rental agreement for returning the car to California.” agreed that reasonable See 403 F.3d at 1129. “[i]mplausible suspicion,” travel but The court of appeals plans prudently can contribute emphasized that to the prosecution had “presented no evidence that extending the car rental period would entail any financial penalty, or even any increase in the rate.” Id. (footnote omitted). “Common experience suggests,” the Santos decision recognized, that lawabiding rental car users frequently “extend the rental without incurring a Superseding penalty Opinion or paying similarly a higher acknowledged rate.” that Id. The “[t]here are certainly a ‘large number of innocent travelers who extend their trips beyond the time originally provided for in their rental agreements.’” See Superseding Opinion 25-26 (quoting United States v. Boyce, 351 F.3d 1102, 1110 n.6 (11th Cir. 2003)). agree with that proposition. We Put simply, planning to extend a rental agreement “may suggest that the driver’s travel plans are uncertain or subject to change, but, without more, not that they are implausible.” Mindful that See Santos, 403 F.3d at 1129. innocent travelers frequently agreements, we turn to the record in this case. 25 extend rental Deputy Soles did not mention the rental agreement at either hearing. Deputy Russell testified at the initial hearing that the Hyundai was “due back [in New Jersey] that same day, and [Williams] was traveling away from there. That seemed odd to me.” J.A. 39. As in Santos, Russell failed to explain how the rental car’s due date was suspicious. the Hyundai was When Russell mentioned to Williams that due in New Jersey later that day, Williams replied promptly that he and MacMullen would renew the rental agreement in Charlotte. Cf. United States v. McRae, 81 F.3d 1528, 1535 (10th Cir. 1996) (noting that McRae’s “evident lack of concern,” “unusually cavalier attitude,” and “vague response” regarding how contributed he to a would return reasonable experienced officer”). his rental suspicion in car a “correctly trained and Moreover, as Russell knew during the traffic stop, the Hyundai had been rented through Hertz, a wellknown car rental business with locations most everywhere. We do not doubt that the third factor, if it had been “keyed to contribute other to an compelling experienced suspicious officer’s See Digiovanni, 650 F.3d at 513. suspicion Williams’s of criminality travel plans reasonable might suspicion. But no reasonable, articulable arises were behavior,” from likely duration of the rental agreement. 26 the to mere exceed fact the that initial d. The Superseding Opinion’s fourth factor specified that “Williams was unable to provide a permanent home address in New York even though he claimed to live there at least part-time and had a New York driver’s license.” not fully describe what That assertion, however, does occurred during the traffic stop. Although the district court related that Williams had failed to provide either Deputy Russell or Deputy Soles with his home address, the record shows that neither deputy asked Williams for it. Distilled from the Superseding Opinion’s unwarranted inference that Williams was unable to provide a home address, the fourth factor has three aspects: address, address Williams gave Williams a provided post (1) when asked for an office differed box from address; the address (2) the on his driver’s license; and (3) Williams told the deputies that he lived in both New York and New Jersey. Neither Deputy Russell nor Deputy Soles explained how using a post office box address, or living in New York and New Jersey, raised some suspicion of criminal aspect of activity. the fourth In fact, factor neither as officer suspicious. identified Although it any is somewhat ambiguous, the only evidence regarding the significance of the post office box address suggests that the address did not raise suspicion. In response to a question on whether the post 27 office box address “affect[ed] [Russell] in the performance of [his] duties to issue a warning ticket,” Russell said, “I put [the post office box address] there because I could not get [Williams’s] formal address. That’s where he received mail, so I still wrote that for the warning. It was just obscure.” . . . It didn’t affect. J.A. 54. Despite the deputies’ failure to draw any suspicion from Williams’s post office hypothesized that explanations” Williams raised suspicion.” the box address, “different gave for the district addresses them “may have court and [the] legitimately See Superseding Opinion 22 (emphasis added). In connecting Williams’s use of a post office box address with possible suspicion, the court relied on our unpublished decision in United States v. Newland, 246 F. App’x 180 (4th Cir. 2007). As with the second factor, cherry-picking “relevant factor” findings from inapposite factual contexts bears little fruit. Newland had furnished a driver’s license from the U.S. Virgin Islands and a rental agreement in his name with a Maryland address, but advised the officers that he lived in Washington, D.C. See Newland, 246 F. App’x at 182-83, 189. The officers suspected immediately — and correctly — that the Virgin Islands license was fraudulent. Id. at 182-83. Newland was also visibly nervous, and when asked why he had used the Maryland address on the rental agreement, 28 he “hesitated” before explaining that the address was his girlfriend’s. 189. Id. at 182, In those circumstances, we concluded that three different — addresses reasonably including aroused the one on a officers’ fake driver’s suspicion. license Id. at — 189. Moreover, at the suppression hearing, the officers “described in some detail the reasons for their suspicions about Mr. Newland’s license.” Id. at 188. Nothing in Newland suggests, however, that receiving mail at a different address from that shown on the recipient’s driver’s license provides a reasonable basis for suspicion. Put succinctly, Deputies Russell and Soles failed to develop the fourth factor with Williams during the traffic stop and offered no explanation of how that factor contributed to any reasonable suspicion. Absent some factual underpinning, the significance of the fourth factor collapses. 2. As explained above, each of the factors relied on in the Superseding Opinion — standing alone — fails to support any reasonable, articulable suspicion of criminal activity. That analysis does not end our inquiry, however, because, as we have recognized, “reasonable suspicion may exist even if each fact standing alone is susceptible to an innocent explanation.” McCoy, 513 F.3d at 413-14. facts, “in their totality,” See Under the applicable standard, the should 29 “eliminate a substantial portion of innocent travelers.” Id. at 413. Furthermore, an officer must “either articulate why a particular behavior is suspicious or logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative of some more sinister activity than may appear at first glance.” See Foster, 634 F.3d at 248. a. According to the Superseding Opinion, reasonable suspicion existed because the four factors, “taken together[,] . . . eliminate a substantial portion of innocent travelers.” See Superseding Opinion 31. In pressing the contrary conclusion, Williams relies decision rejected the on our government’s appeal in Digiovanni. and affirmed ruling based on a Fourth Amendment violation. a There, we suppression The officer in Digiovanni sought to rely on ten factors, including some that are similar to those in the Superseding Opinion. Digiovanni was driving a rental car characterized as “a known drug corridor.” 13. on I–95, For example, which was See 650 F.3d at 512- When asked about his travel itinerary, Digiovanni described an “unusual” route that included various stops to visit family members. Id. at 502-03, 512-13. To be fair, Digiovanni’s plan to ride the “Auto Train” for part of his trip, which would have temporarily separated him from his vehicle, “cut[] against the government’s argument” for 30 reasonable suspicion. importance, however, See Digiovanni, 650 F.3d at 513. the officer specified two other Of factors that — in context — were relevant to the reasonable-suspicion analysis. First, Digiovanni had flown one-way into Florida — “a known drug source state” — and rented a car for the return trip to the northeast. Id. at 512-13. Second, “Digiovanni’s hands were trembling when he handed over his driver’s license and the rental [car] contract.” Id. at 512. Our Digiovanni decision observed that the officer was “entitled to rely to some degree” on those two factors, in addition to others. Id. at 512-13. Nonetheless, Judge Hamilton concluded that “reasonable suspicion was not present to turn [Digiovanni’s] routine traffic stop into a drug investigation.” Id. at 513. At bottom, all the authorities could “link to the unusual travel itinerary” was that “Digiovanni rented a car from a source state, was stopped on I–95, and was initially nervous.” Our Digiovanni decision Circuit’s decision in Boyce. circumstances that are is Id. consistent with the Eleventh In that case, the court evaluated materially indistinguishable from first three factors relied on in the Superseding Opinion: the Boyce was “driving a rental car on a known drug corridor [I-95],” and “planning to return the car two days late,” that is, his stated travel plans exceeded the duration of the rental agreement. 31 See 351 at factors, 1109. 7 in F.3d their reasonable suspicion The Eleventh totality, because Circuit were they ruled insufficient “would likely that to those create apply to a considerable number of those traveling for perfectly legitimate purposes.” Id. (internal quotation marks omitted). Neither Digiovanni nor Boyce dealt with the fourth factor specified in the Superseding Opinion — dual residency and differing addresses. On this record, however, that factor does not tip the balance. It is not atypical for a person to receive mail at an address other than the one on his driver’s license, nor is it uncommon employer’s address. for a person to receive mail at his And many businesses receive their mail at post office box addresses — one need only leaf through the nearest magazine or journal for a subscription insert. Finally, the fact that Williams was splitting time between residences in New York and New Jersey is unremarkable. Stated simply, the Superseding Opinion’s four factors — in the aggregate — fail innocent travelers. to eliminate a substantial portion of Because the applicable standard requires 7 A police officer stopped Boyce on I-95 shortly before midnight. See Boyce, 351 F.3d at 1104. In its reasonablesuspicion analysis, the Eleventh Circuit did not rely on the late hour of the traffic stop. 32 such a showing, the government’s contention fails to pass constitutional muster. 8 b. Even if the Superseding Opinion’s four factors were to eliminate a substantial portion of innocent travelers, Williams would yet Williams’s demonstrated prevail. The particular behavior that his deputies behavior was was neither articulated suspicious nor indicative of how logically some more sinister activity than appeared at first glance, as our Foster decision requires. It is well settled that, in the reasonable-suspicion inquiry, we “credit the practical experience of officers who observe on a daily basis what transpires on the street.” See Branch, 537 F.3d at 336-37 (internal quotation marks omitted). Nevertheless, officers must apply their experience so that the courts can make informed decisions on whether their suspicions are reasonable. See Foster, 634 F.3d at 248 (explaining that 8 We observe that the First Opinion’s discarded fifth factor — “Williams stated that he was traveling with the car ahead of him, yet that car’s driver denied any association with Williams” — supported the presence of reasonable suspicion in this case. See First Opinion 23. That factor, however, was entirely undermined by the Soles Video and the evidence at the reconsideration hearing. Indeed, the trial court characterized Deputy Soles’s earlier testimony with respect to the fifth factor as “not true.” See J.A. 271. If the fifth factor were viable, our conclusion today might well be different. 33 “an officer and the Government must do more than simply label a behavior as ‘suspicious’ to make it so”). Were it otherwise, an experienced police officer’s recitation of some facts, followed simply by a legal catchphrase, would allow the infringement of individual rights with impunity. 512 (cautioning against “the See Digiovanni, 650 F.3d at inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia omitted)). of suspicious Put authorities simply, articulate or activity” our (internal precedent logically quotation requires demonstrate that a between the relevant facts and criminal activity. marks the connection See Foster, 634 F.3d at 248. This record fails to show how the four factors — separately or cumulatively — reasonably pointed to criminal activity. the initial hearing, Deputy Soles testified generally At that, prior to ordering the dog sniff, “I had already kn[own] and seen for myself indicators commonly associated with those that are involved in criminal activity.” See J.A. 86. He later explained, in a conclusory fashion, that officers may “ask for consent to search” or “conduct a K-9 scan” when “we see indicators commonly associated with those that are involved in criminal activity, and[,] due to the totality of those circumstances that we see during that stop[,] [we believe] that criminal activity may be afoot.” 34 See id. at 92. Deputy Russell testified in the reconsideration hearing that the factors mentioned in his police report “drew [his] suspicion,” but he did not identify those factors or further elaborate on how they were connected to criminal activity. not question prosecution the is experience obliged of to See id. at 227-28. these present officers, evidence but We do the articulating reasonable suspicion. Having assessed de novo the reasonable-suspicion question, we are simply possessed a not convinced reasonable, activity during completed stop the of Deputies articulable traffic the that stop. Hyundai to Russell suspicion Extending conduct a of the dog and Soles criminal otherwise- sniff thus contravened the Fourth Amendment. IV. Pursuant to the foregoing, we vacate Williams’s conviction and sentence and remand for such other and further proceedings as may be appropriate. VACATED AND REMANDED 35
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