UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 99-11250
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
NAPOLEON JONES,
Defendant-Appellant.
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No. 99-11259
EDUARDO GABRIEL DANIEL,
Appeals from the United States District Court For the Northern District of Texas November 20, 2000 Before DUHÉ, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
In these appeals, which were consolidated for oral argument,
both defendants Napoleon Jones and Eduardo Gabriel Daniel appeal
their convictions arising out of a traffic stop where narcotics
were found in their rental car. Because the narcotics were the
fruit of an illegal seizure, we vacate the convictions and
sentences and remand.
I. BACKGROUND
On April 2, 1999, at approximately 11:57 a.m., Officers Tommy
Russell and Barry Ralston initiated a traffic stop of a car just
inside the city limits of Amarillo, Texas, for a speeding
violation. Inside the vehicle were the two defendants, who were
traveling from Los Angeles to Memphis. Upon being pulled over,
Russell approached the vehicle on the driver’s side while Ralston
moved towards the passenger’s side. Russell asked Daniel, the
driver of the car, for his driver’s license and proof of insurance.
After Daniel produced his California driver’s license and a rental
car agreement for the vehicle, Russell asked Daniel to step outside
the car.
With Ralston by his side, Russell notified Daniel that he had
been stopped for speeding and would be issued a warning citation.
Russell then asked a series of questions including: 1) whether the
2 vehicle was a rental car; 2) who had rented it; 3) what was the
identity of the passenger; 4) where the defendants were going; and
5) why they were going to their destination. Daniel answered that
the car was a rental, that his mother had rented the vehicle, that
the passenger was his uncle, that the defendants were going to
Memphis, and that they were going to Memphis for a couple of weeks
to do some promotional work for Street Institute Records (“Street
Institute”). Subsequent to further questioning, Daniel replied
that he and Jones were from California, specifically Los Angeles
County, and that they had worked together on other promotional
deals in various other states.
At about 12:00 p.m., after instructing Daniel to stay by the
road median, Russell began to question Jones. First, Russell
advised Jones that the car had been stopped for speeding and that
the defendants would be issued a warning ticket. Then, Russell
inquired about the defendants’ destination. Jones responded
“Memphis.” When Russell asked what the purpose of the trip was,
Jones stated, “Well, let me show you in the trunk.” On the way to
the trunk, Jones volunteered that he was originally from Memphis
and that he was doing some promotional work for a record company in
Beverly Hills. Russell inquired as to the duration of the
defendants’ stay in Memphis, and Jones replied “about a week.”
After rummaging through the trunk, Jones handed Russell a CD,
explaining that it was a promotional CD produced by Sage Stone
Entertainment (“Sage Stone”). At approximately, 12:02 p.m.,
3 Russell directed Jones to return to his seat in the car.
Thereafter, Russell instructed Daniel to sit in the back of
the patrol car. Russell and Ralston then took seats in the front
and initiated a conversation with Daniel concerning the issuance of
the warning ticket. As Russell was filling out the warning
citation, he asked Daniel where he and Jones were going to be
staying in Memphis. Daniel explained that Jones had family in
Memphis and that if they did not stay with family, then they would
go to a hotel. Russell then asked for a second time who had rented
the car for Daniel. Daniel responded that his mother had. Russell
informed Daniel that the rental agreement did not state that there
were any additional authorized drivers, to which Daniel explained
that the “insurance” said it was permissible to complete the
agreement in that fashion. At 12:04 p.m., Russell requested
Ralston to run a criminal history check on Daniel. After Ralston
forwarded Daniel’s information to the dispatcher, the dispatcher
instructed to standby. Russell continued with the questioning and
again asked Daniel what company he was with, to which Daniel
replied, “Street Institute.” Daniel further explained the nature
of his relationship with the company and that he managed a singer
named Tracy. Around this time, Russell asked Daniel if he had ever
been arrested. In response, Daniel stated that he had been
arrested for possession of crack cocaine.
While awaiting for the response from the dispatcher, Russell
exited the patrol car and again approached Jones and requested
4 identification. As Jones was retrieving his wallet, Russell
inquired as to the nature of Daniel’s business dealings. Jones
explained that Daniel worked part-time with Jones’s company on
promotions. Upon further questioning, Jones responded that Daniel
was his son-in-law’s brother. At 12:09 p.m., Russell obtained
Jones’s California driver’s license. Russell then asked whether
Daniel actually managed anyone, and Jones replied that Daniel only
did promotional work. Russell and Jones communicated for a few
more moments about Jones’s promotional trips with Daniel.
Thereafter, Russell advised Jones that the rental agreement did not
list any additional drivers, but indicated that this oversight was
“alright.” He then told Jones to sit down in the rental car.
During the time Russell spoke with Jones, the dispatcher responded,
and Ralston requested the dispatcher to run criminal history/wanted
checks and driver’s license verification on Daniel.
When Russell returned with Jones’s driver’s license to the
patrol car at 12:10 p.m., the dispatcher advised that it could not
completely hear the information Ralston had given because of the
wind. Hence, Russell had Daniel close the back door of the patrol
car. Ralston then repeated the information about Daniel and
requested the appropriate checks as to Jones. Russell again
inquired as to the name of Daniel’s company, how long Daniel had
been with them, and his relationship with Jones. Again, Daniel
responded “Street Institute.” Moreover, Daniel clarified that
Jones was not really his uncle, but his brother’s father-in-law.
5 Russell next turned to questioning Daniel about his prior arrest.
Daniel explained that he was currently involved in a drug diversion
program and that upon completion of the required classes, the
possession charge would be dismissed.
At 12:14 p.m., the dispatcher reported that neither Daniel or
Jones had a criminal history and that both drivers’ licenses were
current. At 12:15 p.m., Russell exited the patrol car and returned
Jones’s driver’s license. Russell continued to question Jones,
asking him where the defendants were going to stay in Memphis, how
long Daniel had been with Jones’s company, the nature of the
defendants’ business relationship with Sage Stone, and the
relationship between Sage Stone and Street Institute. Jones
responded accordingly and volunteered to show Russell a compact
disk with the name of both Street Institute and Sage Stone on the
label.
Without accepting Jones’s offer, Russell returned to the
patrol car. He then asked Daniel if there were any narcotics in
the car. Daniel replied in the negative. The time was 12:17 p.m.1
Notwithstanding Daniel’s answer, Russell asked Daniel if Ralston
could “take[] a look in the car.” Daniel replied in the
affirmative. Nearly a minute after obtaining consent, Russell
returned Daniel’s rental car agreement, but he still retained
1 The magistrate judge’s Report and Recommendation indicates the time as 12:16 p.m., but the videotape clearly shows the time to have been 12:17 p.m.
6 Daniel’s driver’s license and the warning citation.
Thereafter, Ralston approached Jones and asked him to join
Daniel in the back seat of the patrol car. Ralston then began a
search of the luggage in the trunk of the car and the trunk itself.
At 12:22 p.m., Ralston motioned Russell to take a look in the
trunk, having found what appeared to be a bundle of narcotics under
the trunk’s carpet lining. As a result, Daniel and Jones were
taken out of the patrol car, handcuffed, and then returned to the
back seat of the patrol car. The officers continued with the
search of the car with the aid of a screwdriver and discovered
additional narcotics. During this search, Daniel and Jones made
allegedly incriminating remarks that were surreptitiously recorded
by the patrol car’s microphone. At 12:44 p.m., the officers placed
Jones under arrest and warned him of his Miranda rights. At 12:46
p.m., the officers placed Daniel under arrest in the same manner.
Both Daniel and Jones were indicted for: 1) conspiracy to
possess with intent to distribute cocaine and cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) & 846; 2) possession of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A) and 18
U.S.C. § 2; and 3) possession of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) & (b)(1)(C) and 18 U.S.C. § 2. Daniel and Jones both
filed motions to suppress evidence, which were referred to a
magistrate judge. An evidentiary hearing was held on the motions,
and the magistrate judge entered separate Reports and
7 Recommendations (“R&Rs”) denying the defendants’ motions. Both
defendants objected to the R&Rs, but the district court overruled
the objections and adopted the R&Rs. Thereafter, Daniel entered a
conditional plea of guilty to Count One of the indictment pursuant
to Rule 11(a)(2) of the Federal Rules of Criminal Procedure. He
was sentenced to a term of 135 months imprisonment, to be followed
by a five-year period of supervised release. On the government’s
motion, the district court dismissed the other two counts. Jones,
on the other hand, went to trial before a jury. After the
government rested its case, Jones moved for judgment of acquittal,
which motion the district court denied. He reurged his motion
before presentation of the jury charge, but the district court
deferred ruling on that motion. The jury returned a guilty verdict
on all three counts, and Jones again moved for judgment of
acquittal. The district court denied that motion and later
sentenced him to 151 months of imprisonment and a five-year term of
supervised release.
Both Daniel and Jones timely filed notices of appeal.
II. DISCUSSION
In their briefs, both Jones and Daniel primarily argue that
the district court erred in failing to suppress evidence obtained
from the traffic stop. They maintain that their detention was
prolonged and unreasonable, violating the Fourth Amendment, and
that, therefore, any resulting contraband was fruit of the
8 poisonous tree and should have been excluded. See United States v.
Dortch, 199 F.3d 193, 197-98 (5th Cir. 1999).
A. Standard of Review
When considering a ruling on a motion to suppress, we review
questions of law de novo and factual findings for clear error. Id.
at 197. Furthermore, we view the evidence in the light most
favorable to the party that prevailed in the district court. Id.
B. The Seizure Was Unreasonable And Violated The Fourth Amendment
Under the Fourth Amendment, the government violates a
defendant’s constitutional rights by executing a search or seizure
without probable cause. United States v. Lee, 898 F.2d 1034, 1039
(5th Cir. 1990). When a warrantless search or seizure is
conducted, the burden shifts to the government to justify the
warrantless search. United States v. Chavis, 48 F.3d 871, 872 (5th
Cir. 1995).
The stopping of a vehicle and the detention of its occupants
is a seizure within the meaning of the Fourth Amendment. United
States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993). But where
there is a reasonable and articulable suspicion that a person has
committed or is about to commit a crime, limited searches and
seizures are permissible under the Fourth Amendment despite the
lack of probable cause. See Lee, 898 F.2d at 1039 (referring to
the reasonable suspicion standard enunciated in Terry v. Ohio, 88
S. Ct. 1868 (1968)). To determine if a seizure has exceeded the
9 scope of a permissible Terry stop, we must undertake a two-step
inquiry: 1) whether the officer’s action was justified at its
inception; and 2) whether it was reasonably related in scope to the
circumstances that justified the interference in the first place.
See United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir. 1993).
Here, the defendants do not challenge the initial stop for
violating the speed limit. Moreover, they recognize that because
the stop was valid, the officers had every right to request the
defendants’ licenses and the registration or rental papers for the
car and to run a computer check on those documents. Dortch, 199
F.3d at 198. Rather, the defendants question the officers’
satisfaction of Terry’s second prong, asserting that the officers’
continued detention after the completion of the computer check was
unreasonable under the circumstances and exceeded the scope of the
initial stop. Based on that violation, the defendants charge that
the cocaine, cocaine base, and the recorded statements should have
been suppressed.2
The facts and legal issues presented in the instant case are
similar to those in United States v. Dortch, 199 F.3d 193 (5th Cir.
1999), which was issued after the district court denied the motions
2 Because the defendants’ primary basis for contesting the district court’s failure to suppress the narcotics was that the narcotics were the fruit of an unreasonable seizure, we need not address the government’s contention that the defendants’ lacked standing to challenge the search of the vehicle. See, e.g., Dortch, 199 F.3d at 197 & n.4.
10 to suppress and entered the judgments of conviction in this case.
In Dortch, the defendant and his passenger were traveling in a
rental car and were stopped by police because they had been driving
too close to a tractor-trailer. Id. at 195. The rental papers
indicated that neither the defendant or his passenger had rented
the car or were authorized drivers. Id. at 195-96. During the
stop, the police officers asked questions of the defendant and his
passenger. The defendant and the passenger gave inconsistent
answers about the defendant’s relationship with the person who had
rented the car. Id. at 196. Moreover, the defendant stated that
he had been in Houston the past two days, although the rental
papers indicated that the car had been rented the day before in
Pensacola, Florida, home of the defendant. Id. In addition to the
questioning, the officers patted down the defendant, looking for
weapons. Id. at 195-96. Furthermore, while the officers awaited
a computer check of the defendant’s driver’s license and the rental
car, the defendant consented to a search of the car’s trunk, but
declined a search of the rest of the vehicle. Id. at 196.
Thereafter, the officers told the defendant that he would be
free to go after the computer checks were completed but that the
car would be detained by the officers so that a canine search could
be performed. Id. Again, one of the officers patted down the
defendant, and nothing was found. Id. When the computer check
came back, one of the officers questioned the defendant about his
11 record but did not inform him that he could leave. Id. A few
minutes later, the canine unit arrived, and the officers then told
the defendant that there were no outstanding warrants. Id.
Nevertheless, they told the defendant that a canine search would be
performed. Id. Ultimately, the dog alerted to the driver’s side
of the car, but no drugs were found. Id. Due to the alert,
however, the officers again patted down the defendant after
allegedly receiving a third consent. Id. This time drugs were
found on the defendant’s body. Id.
In Dortch, we held that the defendant’s Fourth Amendment
rights had been violated when the detention extended beyond the
completion of the computer check because, at that point, the basis
for the initial stop had been discharged. Id. at 198. Although
the government argued that the canine unit had arrived within
moments of the completion of the computer check and, thus, the
defendant had not been unreasonably detained, we concluded
otherwise. Id. at 198-99.
Similar to Dortch, the computer checks in the instant case
were completed before the search of the vehicle occurred. At least
three minutes transpired from the response by the dispatcher to the
time that Russell asked for consent to search the car. Except for
obtaining Daniel’s signature, Russell had completed the warning
citation. But instead of obtaining Daniel’s signature and
returning his driver’s license and rental agreement, Russell chose
12 the more dilatory tactic of exiting the car, returning Jones’s
identification papers before doing the same for Daniel, and, most
importantly, repeating to Jones the same questions that were asked
of him before. After the computer checks were finished, any delay
that occurred with respect to the warning citation being meted out
was due to the officers’ action or inaction. The basis for the
stop was essentially completed when the dispatcher notified the
officers about the defendants’ clean records, three minutes before
the officers sought consent to search the vehicle. Accordingly,
the officers should have ended the detention and allowed the
defendants to leave. And the failure to release the defendants
violated the Fourth Amendment. The district court erred by not so
holding.
C. There Was No Reasonable Suspicion
In response to the defendants’ contention that the seizure was
prolonged and unreasonable, the government argues that the officers
had reasonable suspicion to justify the continued detention of the
defendants. An officer may temporarily detain a person for
investigative purposes if the officer has a reasonable suspicion
supported by articulable facts that criminal activity may be afoot.
United States v. Sokolow, 490 U.S. 1, 7 (1989). The suspicion
required to justify such a detention need not rise to the level of
probable cause but must be based on more than an unparticularized
suspicion or hunch. Id. In determining whether reasonable
13 suspicion existed to justify the defendants’ continued detention,
we must look at the totality of the circumstances and consider the
collective knowledge and experience of the officers involved.
United States v. Holloway, 962 F.2d 451, 459 & n.22 (5th Cir.
1992).
Here, Russell raised three bases for his reasonable suspicion.
First, he pointed to the defendants’ allegedly inconsistent answers
with respect to questions surrounding the defendants’ place of
employment. Second, Russell testified that the defendants gave
contradictory responses about the precise job that Daniel had.
Third, Russell stated that he also became suspicious from Daniel’s
acknowledgment that he had previously been arrested on a crack
cocaine charge.
In Dortch, we found no reasonable suspicion of drug
trafficking despite the confusion as to the relationship of the
defendant to the proper renter of the vehicle, the defendant’s
absence as an authorized driver on the rental agreement, the
allegedly inconsistent answer about the defendant’s stay in
Houston, and the supposed nervousness of the defendant. Compared
to the facts in Dortch, Russell’s bases for reasonable suspicion in
this case are even less suggestive of reasonable suspicion and are
at best trivial. Jones explained to Russell the discrepancy
between Sage Stone and Street Institute, the two names dropped by
Jones and Daniel, respectively, as their place of employment.
14 Jones specifically stated that Street Institute had folded, that
Sage Stone had picked up Street Institute’s records, and that
Russell could examine a CD in the trunk that would show the two
entities together. And contrary to Russell’s testimony that
Daniel’s and Jones’s statements about Sage Stone and Street
Institute aroused his suspicions, the videotape and transcript
reflect that Russell understood the situation between the two
record companies and was not overtly troubled by any alleged
discrepancy. Indeed, Russell decided against examining the CD that
Jones offered to show him. As for the allegedly inconsistent
statements about Daniel’s job, they do not amount to reasonable
suspicion about drug trafficking. Daniel stated that he did some
promotional work and managing. But when asked about Daniel’s work
with the record company, Jones replied that Daniel only did
promotional work and no managing. Nonetheless, whether Jones said
that Daniel did not manage is immaterial and does not raise any
suspicions. Jones’s statement merely shows that he does not know
everything about Daniel’s work other than promoting. Finally,
Daniel did acknowledge having been arrested, but arrest alone does
not amount to reasonable suspicion. See, e.g., Dortch, 199 F.3d at
196, 199 (finding no reasonable suspicion notwithstanding
defendant’s criminal record); United States v. Lee, 73 F.3d 1034,
1040 (10th Cir. 1996). Consequently, we hold that there was no
reasonable suspicion of drug trafficking, or any other crime, to
15 further detain the defendants.
D. The Consent Did Not Dissipate The Fourth Amendment Violation
The government contends that even if the detention had been
prolonged and unreasonable, Daniel’s subsequent consent remedied
any Fourth Amendment violation. Although the officers’ detention
of the defendants exceeded the scope of a permissible Terry stop,
a subsequent “‘[c]onsent to search may, but does not necessarily,
dissipate the taint of a [prior] fourth amendment violation.’”
Dortch, 199 F.3d at 201 (quoting United States v. Chavez-Villareal,
3 F.3d 124, 127 (5th Cir. 1993)).
When we evaluate consent given after a Fourth Amendment
violation, the admissibility of the challenged evidence turns on a
two-pronged inquiry: 1) whether the consent was voluntarily given;
and 2) whether the consent was an independent act of free will.
Chavez-Villareal, 3 F.3d at 127. “The first prong focuses on
coercion, the second on causal connection with the constitutional
violation.” Id.
We examine whether consent was voluntarily given under a six-
factor test. Shabazz, 993 F.2d at 438. Those factors are: 1) the
voluntariness of the defendant’s custodial status; 2) the presence
of coercive police procedures; 3) the extent and level of the
defendant’s cooperation with the police; 4) the defendant’s
awareness of his right to refuse consent; 5) the defendant’s
education and intelligence; and 6) the defendant’s belief that no
16 incriminating evidence will be found. Id. No single factor is
dispositive. Id. “The government has the burden of proving, by a
preponderance of the evidence, that the consent was voluntary.”
Id.
Here, the district court applied the six-factor test and
concluded that Daniel’s consent was voluntary. Daniel, however,
argues that the consent was not voluntary because he was
essentially under arrest. For support, he notes that he was in the
patrol car, that the windows and doors of the car were closed, that
he was separated from Jones, and that his driver’s license and
rental agreement were retained by the officers. The government
counters that the doors of the patrol car were initially open and
that the officers asked Daniel to close them only after the
dispatcher could not hear the information being relayed by the
officers because of the street noise. Furthermore, the government
maintains that Russell did not ask for consent in an aggressive or
coercive manner, that Daniel appeared reasonably intelligent and
capable of understanding the request to search the vehicle, that
Daniel had cooperated with the officers throughout the stop, and
that the drugs were in an inconspicuous location, suggesting that
Daniel may have believed that the narcotics would not be found.
We realize that the patrol car’s doors were initially open,
but at the time Russell asked Daniel for consent, the doors were
closed and Daniel was essentially locked inside the patrol car.
17 Moreover, one could infer coercion from the officers’ retention of
Daniel’s driver’s license and rental agreement. On the other hand,
as the government correctly argues, many of the other factors
militate in favor of a finding of voluntariness. We need not
belabor the point, however, as it is clear that the government
failed to prove that the consent was an independent act of free
will and that the district court erred by not considering the
second prong of the consent inquiry, which is required when a
constitutional violation has preceded the consent. See Chavez-
Villareal, 3 F.3d at 128; Dortch, 199 F.3d at 202 (citing Chavez-
Villareal).
To determine whether the consent was an independent act of
free will and, thus, broke the causal chain between the consent and
the illegal detention, we must consider: 1) the temporal proximity
of the illegal conduct and the consent; 2) the presence of
intervening circumstances; and 3) the purpose and flagrancy of the
initial misconduct. Id. In Dortch, we found against the
government and concluded that a close temporal proximity existed
between the illegal conduct and the consent because the detention
of the defendant continued until the officers had sought the
defendant’s consent to search his person a third time. Id.
Likewise, in the present case, there was a close temporal proximity
between the illegal detention and Daniel’s consent because the
detention that became prolonged and unreasonable after the computer
18 checks were completed continued up to the time of Daniel’s consent.
Second, “no circumstances intervened between the detention and the
consent, and there is no reason to think that [Daniel] believed he
was free to go during that time.” Id. Indeed, in Dortch, we did
not believe the defendant could leave the scene of the stop,
notwithstanding the officers’ statement that the defendant could
leave without the car. Id. Similarly, in Chavez-Villareal, we
held that instead of being an intervening circumstance, the fact
that the border patrol agent had retained the defendant’s alien
registration card when he asked for consent merely reinforced the
agent’s authority and, hence, the illegal stop that occurred less
than fifteen minutes before. Chavez-Villareal, 3 F.3d at 128.
Although the agent told the defendant that he could refuse to
consent to the search, we believed that the refusal seemed
pointless by that time. Id. Considering our prior holdings, we
can hardly say that Daniel had any more belief that he could go
free when the officers never told him that he could leave but
instead retained his driver’s license, the warning citation, and
the rental agreement and had him essentially locked up in the back
of the patrol car. As for the third factor, the detention may not
have been flagrant, but it is clear that the purpose of the
detention was to obtain consent to search vehicles for narcotics.
The officers were on a drug interdiction patrol in the Amarillo
area. Additionally, the officers appeared to knowingly prolong the
19 detention because they purposefully chose to give Jones, not
Daniel, his identification documents first despite the fact that
they could readily have given Daniel his documents back first, as
he was in the car with the officers when the computer checks came
back clean.
In sum, even if the district court validly concluded that
Daniel had voluntarily consented to the search, we believe that the
consent was not valid because the causal chain between the illegal
detention and Daniel’s consent was not broken. Hence, the search
was nonconsensual. See, e.g., Dortch, 199 F.3d at 202.
E. Fruit Of The Poisonous Tree
Under the fruit-of-the-poisonous-tree doctrine, “all evidence
derived from the exploitation of an illegal search or seizure must
be suppressed, unless the Government shows that there was a break
in the chain of events sufficient to refute the inference that the
evidence was a product of the Fourth Amendment violation.” United
States v. Rivas, 157 F.3d 364, 368 (5th Cir. 1998). The government
does not offer anything to show that there was a break in the chain
of events. Because we find that the prolonged detention violated
the Fourth Amendment and that Daniel’s consent did not cure the
20 violation, the narcotics and the taped conversation must be
suppressed and the convictions and sentences vacated.3
III. CONCLUSION
For the foregoing reasons, we vacate Jones’s and Daniel’s
convictions and sentences and remand the cases for trial without
the illegally seized drugs and taped conversation.
3 In light of our ruling, we need not address Jones’s other contentions that there was insufficient evidence to convict him of the three counts and that the district court erred in overruling his motions for judgment of acquittal.
21 EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting
in part:
I write to express disagreement with the two basic premises of
the majority opinion: that there was no reasonable articulable
suspicion after the dispatcher completed the computer checks on
Jones and Daniel, and that Daniel’s consent to the search of the
trunk of the car was invalid.
The majority opinion holds that the initially proper roadside
detention of Jones and Daniel should have ended when the dispatcher
returned negative checks on their criminal histories and driver’s
license verifications. Once these computer checks were completed,
the majority reasons, the purposes of the investigatory stop were
fulfilled and the officers were constitutionally required to permit
Jones and Daniel to leave because the officers lacked a reasonable
articulable suspicion that criminal activity was afoot. I concur
insofar as this is the result required by our opinion in United
States v. Dortch, 199 F.3d 193 (5th Cir. 1999). In Dortch, we held
that a proper investigatory stop of a rental car occupied by a
driver and passenger not listed on the rental agreement became
unconstitutional when the detention continued beyond the
dispatcher’s return of negative background checks. See Dortch, 199
F.3d at 199. We reasoned that the officers did not maintain a
reasonable articulable suspicion of participation in drug
trafficking after this point, explaining that “[e]ssentially the
-22- government asks us to find that officers have reasonable suspicion
to suspect drug trafficking anytime someone is driving a rental car
that was not rented in his name. We reason, to the contrary, that
the law enforcement purposes to be served by the computer check
were only to ensure that there were no outstanding warrants and
that the vehicle had not been stolen.” Dortch, 199 F.3d at 199.
I am unpersuaded by the logic of Dortch, however, and to this
extent agree with the reasoning of the Dortch dissent. The fact
that the Dortch defendants, as well as the defendants in the
instant case, were driving a car they were not authorized by the
rental agreement to drive is a factor that should be permitted in
a calculation of reasonable articulable suspicion of criminal
wrongdoing. See Dortch, 199 F.3d at 204 (“The majority cites no
authority for its conclusion that circumstances such as none of a
rented vehicle’s occupants being either an authorized driver of it
or having any documented relation to the vehicle or the party
renting it, do not give rise to reasonable suspicion of contraband
trafficking.”) (Garwood, J. dissenting); United States v. $14,000
in United States Currency, 211 F.3d 1270, 2000 WL 222587, **3 (6th
Cir. 2000) (unpublished) (officers possessed a reasonable
articulable suspicion where car occupants gave conflicting stories
as to their destination, drove a rental car with high mileage and
an expired rental agreement, one occupant was anxious and overly
talkative, and one occupant had a recent criminal conviction for
-23- drug possession).
According to the Tenth Circuit, in a case that preceded
Dortch, “an officer may detain a driver until assured that the
driver’s license is valid and the driver is legitimately operating
the vehicle.” See United States v. Jones, 44 F.3d 860, 871 (10th
Cir. 1995). In Jones, the court held that the officer never
received such assurances, and that the officer’s reasonable
suspicion of criminal activity arose concurrent with the legitimate
investigative detention. In the case of defendants Jones and
Daniel, it is true that dispatch confirmed the validity of the
drivers’ licenses and confirmed that neither had criminal
backgrounds. But such a check cannot confirm the relationship of
the drivers to the rental car. To the extent that the officers
were suspicious because the car was rented, and then because the
occupants were not the renters, the Dortch rule requiring
suspension of the investigation when negative computer checks are
returned is illogical. I therefore concur in the majority opinion
because it is consistent with the Dortch rule;4 I disagree,
4 I further disagree with the majority’s analysis of the remaining factors that contributed to the officers’ suspicion of Jones and Daniel: (1) the defendants’ inconsistent answers with respect to questions surrounding their place of employment, (2) the defendants’ inconsistent answers about Daniel’s job, (3) Daniel’s acknowledgment that he had previously been arrested on a crack cocaine charge. The majority analyzes the suspiciousness of each of these factors, again in comparison to Dortch, and concludes that the detention beyond the point of the computer check was unsupported by a reasonable suspicion. It is, however, the totality of the factors that must be considered, and as stated by
-24- however, with that rule.
I also disagree with the majority’s discussion of Daniel’s
consent to search the trunk of the car, and accordingly dissent
from that portion of the opinion. The majority holds that Daniel’s
consent was invalid because the government failed to prove that the
consent was an independent act of free will. Before reaching the
issue of the validity of the consent, however, we must first decide
the threshold question of whether Daniel, as a non-owner and non-
renter of the car, had a possessory interest in the car such that
his consent to search was requisite.5 See Rakas v. Illinois, 439
U.S. 128, 99 S.Ct. 421, 424 n. 1 (1978) (“[T]he proponent of a
motion to suppress has the burden of establishing that his own
the Fourth Circuit, “[t]he articulated factors together must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied.” United States v. Brugal, 209 F.3d 353, 359 (4th Cir. 2000) (en banc). The three factors relied upon by the officers here would seem fit that criterion))indeed, such was the finding of the district court. See United States v. Nichols, 142 F.3d 857, 864-65 (5th Cir. 1998) (determinations of law, such as whether reasonable suspicion existed, are reviewed de novo, while findings of fact are reviewed for clear error). Given the majority’s apt description of the facts of this case in comparison to those of Dortch, I again cannot say that they are distinguishable, and to this extent agree with the majority conclusion regarding reasonable articulable suspicion. 5 Daniel argues that the standing issue was waived by the government when it failed to object to the findings of the magistrate report. See Douglass v. United States Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996). Daniel’s argument, however, overlooks the fact that the government prevailed before the magistrate, and thus lacked the motivation to object to any of the magistrate findings. The standing issue was raised by the government on appeal, and is thus properly before us for review.
-25- Fourth Amendment rights were violated by the challenged search or
seizure.”). This question was also presented in Dortch. The
dissent there noted that there is some question as to what Fifth
Circuit precedent is on the proposition that an unauthorized driver
of a rental car lacks standing to challenge the validity of a
search. See Dortch, 199 F.3d at 204-06. The possible conflict
within our circuit is well-described in the Dortch dissent and need
not be repeated here; it is enough that Daniel has not met his
burden under Rakas of demonstrating a possessory interest in the
car, such that the majority opinion discussing the validity of his
consent is premature. I accordingly dissent.
-26-