[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT FILED
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U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-15891
October 22, 2003
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THOMAS K. KAHN
CLERK
D. C. Docket No. 02-00143-CR -N
UNI TED STA TES OF A MER ICA, Plaintiff- Appe llant,
versus
JESS IE JER OM E PE RKIN S, JR., JOH NNY LEW IS SC OTT ,
Defen dants-A ppellees.
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Appeal from the United States District Court for the Middle District of Alabama
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(October 22, 2003)
Before DU BINA, B ARKE TT and H ILL, Circuit Judges.
BARKE TT, Circuit Judge:
The United States appeals from the trial court’s order granting the motions of Jesse Jerome Perkins Jr. and Johnny Lewis Scott to suppress all statements made and ph ysical evid ence ob tained du ring a traf fic stop fo r the issua nce of a tr affic warning citation. Following an evidentiary hearing, the Magistrate Judge recommended that the motions be granted. The district court accepted the Magis trate Judg e’s recom menda tion, and we affir m these d ecisions.
I. BACKGROUND
The essential facts of this case are not in dispute and are fully stated in the Magistrate Judge’s recommendation. Officer Colston of the Alabama Highway Patrol w as patrollin g the inter state wh en he ob served a maroo n Plym outh automobile with a Florida license plate cross the white fault line and veer onto the shoulder of the highway. Fearing that the driver was falling asleep or under the influence of drugs or alcohol, Colston initiated a traffic stop and approached the passeng er side of the vehic le wher e Scott w as seated, e xplainin g to both defend ants that he stopped them to ensure that Perkins, who was driving, was not asleep or under the influence of drugs o r alcohol. After inspecting Perkins’ driver’s license and insu rance inf ormatio n, Colsto n asked Perkin s to get ou t of the car so he co uld give Perkins a warning ticket for a lane violation, assuring him that, after the
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issuance of the warning citation, he would be free to leave. Scott remained in the vehicle.
After b riefly searc hing P erkins fo r weap ons, Co lston then directed h im to sit in the patrol car while he completed the warning ticket. Noticing the Tampa address on Perkins’ Florida driver’s license, Colston asked Perkins if Tampa was his ultimate destination. Perkins’ negative response prompted Colston to ask him a series of questions about his residency, employment, and destination. Perkins explained that he had once lived in Tam pa but had since relocated to Mo ntgomery, Alabama , where he w as employed at Rhodes F urniture. In resp onse to Co lston’s questions about his destination, Perkins indicated that he was headed to Greenville, Alabama. Accord ing to Colston, Perkins w as extremely nervous, breathed rapidly, and rep eated Co lston’s qu estions b efore an swerin g them. P erkins w as not fre e to leave du ring this q uestionin g.
Colsten then rad ioed the d ispatch o fficer to co nduct a d river’s licen se check .
While waiting for the response, Colston asked Perkins if Scott lived in Tampa or Montgomery. Colston also asked Perkins more detailed questions about how long he had lived in Montg omery, w hen he w as going to g et an Alabam a driver’s license, and whom he was going to visit in Greenville. Perkins told Colston that he was going to visit his cousin, Shantay. After the driver’s license check revealed
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that Perkins’ license was valid and that he had no outstanding criminal warrants, Colston gave the completed warning ticket to Perkins for his signature. Colston testified that, after completing the warning citation, he was finished with that portion of his investigation relating to the traffic stop. However, Colston continued to detain Perkins because of his nervousness; what he perceived as Perkins’ evasive behavior in response to his questions; and his hunch that Perkins was be ing untr uthful ab out his d estination . Colston subseq uently de cided to question Scott ab out his d estination .
Colston asked S cott to iden tify himse lf and qu estioned him abo ut his destination. Scott explained that he and Perkins were going to Greenville. When Colston asked w hom h e wou ld be visitin g in Gr eenville, S cott told h im he w ould be visiting a girl named Quinn. Colston also asked Scott if the car contained any contraband or other illegal substances. Scott disavowed any knowledge of any narcotics or other contraband. Colston testified that Scott was not free to leave during this ques tioning.
Without further inquiry, Colston returned to his patrol car, retrieved the signed warning citation from Perkins, and asked whether the vehicle contained any contraband or other illegal substances. When Perkins said no, Colston asked for Perkins’ permission to search the vehicle. Perkins refused to consent, and Colston
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then called the dispatch officer and requested a drug-sniffing dog. When the canine unit arrived, Colston removed Scott from the vehicle, conducted a brief pat-down search for weapons, and placed him in the backseat of the patrol car. Colston left the defendants in the car while he conferred with the canine unit officer. Unaware that their conversation was being taped, Scott disavowed any knowledge of the existence of narco tics, and b oth defe ndants d ebated ab out wh ether the d og wo uld be able to find dru gs. Afte r conclu ding his conver sation w ith the can ine unit officer, Colston joined Perkins and Scott in the patrol car and again asked if any narcotics , contrab and, or o ther we apons w ere in the v ehicle. W hen Pe rkins said no, Colston rephrased the question, asking Perkins if he had any narcotics for personal use. Again, Perkins denied the presence of narcotics. Undaunted, Colston asked Perkins to tell him the exact amount of narcotics that he had hidden in the car. Perkins finally acquiesced, admitted that narcotics were in the car, and offered to show Colston where they were hidden. Perkins was escorted to the vehicle where he informed Colston that the drugs were in the center console, where Colston then found them.
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II. STANDARD OF REVIEW
The gr ant or de nial of a m otion to s uppres s eviden ce is review ed in this Court a s a mixed question of law a nd fact. United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002). We assess the district court’s findings of fact under the clearly erroneous standard and review the application of the law to the facts de novo. Id. The facts are construed in favor of the party that prevailed below which in this case is Perkin s and S cott. United States v. Wilson, 894 F.2d 1245, 1254 (11th Cir. 1990).
III. DISCUSSION
The Fourth Amendment to the United States Constitution protects the right of persons to be free from unreasonable searches and seizures. U.S. Const. amend. IV. A seizure takes place “whenever a police officer accosts an individual and restrains his freedom to walk away.” United States v. Brignoni-Ponce, 422 U.S. 873, 87 8 (197 5). Traf fic stops q ualify as se izures un der the F ourth A mendm ent. Delaware v. Prou se, 440 U .S. 648 , 653 (1 979).
The Supreme Court has identified at least three separate categories of police-
citizen enc ounters in determ ining w hich leve l of Fou rth Am endme nt scrutin y to apply: (1) brief, consensual and non-coercive interactions that do not require Fourth Amen dment s crutiny, Florida v. Bostick, 501 U .S. 429 (1991 );
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(2) legitimate and restrained investigative stops short of arrests to which limited Fourth Amen dment s crutiny is a pplied, Terry v . Ohio, 392 U.S. 1 (1968); and (3) technical arrests, full-blown searches or custodial detentions that lead to a stricter form o f Four th Am endme nt scrutin y, Brow n v. Illino is, 422 U.S. 590 (1975).
As the M agistrate Ju dge reco gnized:
At issue in this case is the second type of encounter, com monly referred to as a Terry stop. United States v. P urcell, 236 F.3d 1274, 1277 ( 11th C ir. 2001 ). . . . Terry requires that an officer have an objective , reasona ble susp icion of c riminal ac tivity. Pur suant to th is standard, a traffic stop must be “reasonably related in scope to the circums tances w hich justif ied the inte rference in the first p lace,”
Purcell, 236 F.3d at 1277 (citing Terry, 392 U.S. at 20) . . . , and may not last “any longer than necessary to process the traffic violation” unless there is articulable suspicion of other illegal activity.
Id. (citing United States v. Holloman, 113 F.3d 192, 196 (11th Cir.
1997)).
Rec. of Magis. Judge, (Oct. 3, 2002) at 9.
Unde r the exclu sionary r ule, evide nce obta ined in an encoun ter that is in violation of the Fourth Amendment, including the direct products of police misconduct and evidence derived from the illegal conduct, or “fruit of the poisonous tree,” cannot be used in a criminal trial against the victim of the illegal search an d seizure . United States v. Terzado-Madruga, 897 F .2d 109 9, 1112 (11th Cir. 199 0). See also Weeks v. United States, 232 U .S. 383 , 391-9 3 (191 4).
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Perkin s and S cott initially ar gue that th e duration of their traffic stop itself was unconstitutional under Terry. Even construing the facts in favor of Perkins and Scott, we agree with the Magistrate Judge that in this case the duration of the traffic stop was no t unreaso nable. See Purcell, 236 F .3d 127 4, 1278 (finding that a traffic stop totaling fo urteen m inutes is n ot unrea sonable on its face ); United States v. Hardy, 855 F.2d 753, 761 (11th Cir. 1988) (holding that an investigative stop of 5 0-minu te duratio n is not u nreason able). Cf. United States v. Place, 462 U.S. 696, 709, 710 (1983) (holding that a 90-minute stop is probably too long for a Terry stop); United States v. Codd, 956 F.2d 1109, 1111 (11th Cir. 1992) (finding that a two-and-a-half hour investigative detention is too long for a Terry stop).
However, we conclude that the circumstances here do not give rise to the requisite r easonab le suspicio n justifyin g contin ued dete ntion of Perkin s and S cott after the warning ticket had been issued. A traffic stop may be prolonged where an officer is able to articulate a reasonable suspicion of other illegal activity beyond the traffic o ffense. Purcell, 236 F.3d at 1277. “While ‘reasonable suspicion’ is a less dem anding standard than pro bable cau se and re quires a s howin g consid erably less than p repond erance o f the evid ence, the F ourth A mendm ent requ ires at least a minimal level of objective justification.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (quoting United States v. Sokolow, 490 U .S. 1, 7 (1 989)). When making a
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determination of “reasonable suspicion,” we must “look at the ‘totality of the circumstances’ of each case to see whether the d etaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). It is clear that “an ‘inchoate and unparticularized suspicion’ or ‘hunch’ of criminal activity” is not enough to satisfy the minimum level of o bjectivity re quired. Wardlow, 528 U.S. at 124 (quoting Terry, 392 U.S. at 27).
The Government argues that the totality of the following circumstances gave rise to a reasonable suspicion of drug trafficking: (1) Perkins’ nervousness; (2) the “odd behavior” of Perkins in repeating the questions Colston asked him; (3) Perkin s’ posses sion of a Florida driver’s lic ense w hile claimin g to live in Montgomery, Alabama; and (4) the “inconsistent” statements from Perkins and Scott with regard to whom they were going to see in Greenville, Alabama.1
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Perkins and Scott argue that the Magistrate Judge correctly determined that:
The government cannot rely on an inconsistent statement acquired after an officer has already begun investigating matters unrelated to the traffic stop as evidence of a reasonable suspicion of criminal activity. . . . Colston’s testimony establishes that any investigation related to the lane violation ended when he completed the warning citation and gave it to Perkins for his signature.
Rec. of Magis. Judge at 11.
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We fin d that thes e circum stances, se parately o r cumu latively, can not sup port a legitimate inference of further illegal activity that rises to the level of objective, reasona ble susp icion req uired un der the F ourth A mendm ent.
First, the Supreme Court has noted that a traffic stop is an “unsettling show of authority” that may “create substantial anxiety.” Delaware, 440 U .S. at 657 . There is no reason w hy Colston should hav e reasonably suspected that Perkins’ nervou sness w as tied to an ything o ther than the fact tha t he was being m omenta rily detained by an authority figure with police power over him. On cross examination, Colston admitted that a nerv ous driv er is not in itself susp icious. Rec. of Magis. Judge at 15 n.4 9. Furth ermore , repeating the ques tions of a police of ficer hard ly constitutes “odd behavior”; it is easily a common symptom of “substantial anxiety” that many habitually lapse into when experiencing fear. Indeed, it is a common occurre nce at ora l argum ents befo re this Co urt by ev en the m ost seaso ned law yers. Likewise, one cannot reasonably assume that a nervous person claiming to be an in-state resident while in possession of an out-of-state license is lying about where he or she is from and is thus a drug trafficker. There are many reasons one may have failed to change the license including lack of time because of a recent move,
We need not address this argument because we find that even with this “fact,” reasonable suspicion does not exist here.
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cost, inconvenience, carelessness, or simple laziness. Finally, the answers given by Perkins and Scott as to whom they were going to see in Greenville, Alabama, do not sup port reas onable s uspicion . Perkin s told the o fficer that h e was g oing to v isit his cous in Shan tay in Greenville. S cott told C olston th at he wa s going to Greenville to visit a girl named Quinn. S cott’s answer did not contradict Perkins’ answer in any way. Perkins and Scott could have intended to see both persons during their visit, o r Perkin s could h ave inten ded to v isit Shan tay while Scott visited Q uinn.
In this Circuit, we have required more than the innocuous characteristics of nervousness, a habit of repeating questions, and an out-of-state license for giving rise to reas onable s uspicion . See United States v. P ruitt, 174 F.3d 1215, 1221 (11th C ir. 1999 ) (holdin g that the f act that the d river w as Hisp anic and had an o ut- of-state license plate was not enough to detain him beyond the issuance of the speedin g ticket); United States v. T apia, 912 F.2d 1367, 1371 (11th Cir. 1990) (“[B]eing Mexican, having few pieces of luggage, being visibly nervous or shaken during a confrontation with a state trooper, or traveling on the interstate with Texas license pla tes (not ye t a crime in Alabam a) . . . fail to su ggest tha t appellan t . . . [was] en gaged in any criminal activity o ther than speedin g on the highw ay.”).
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As Colston testified, following issuance of the traffic citation to Perkins, he merely had a “hunch” based upon the totality of the circumstances that Perkins was lying to him about his destination. This “hunch” led him to initiate a new investigation of other criminal activity after the purpose of the traffic stop had ended. Thus, the continued detention of Perkins and Scott beyond the issuance of the traffic c itation, du ring w hich Co lston rep eatedly ask ed if there were d rugs in the car and called in a drug dog, was unlawful. Since Perkins’ consent to the search of the car was the product of an unlawful detention, “the consent was tainted by the illegality and was ineffective to justify the search.” Florida v. Royer, 460 U.S. 491, 507-08 (1983) (plurality opinion). Therefore, any statements made and evidence seized during the unlawful detention are to be excluded. Finally, we emphasize that “the fact that [Colston’s] hunch ultimately turned out to be correct– i.e. that [Perkins a nd Scott] were illegally transporting [drugs] is irrelevant for pur poses of the Fo urth A mendm ent. To h old othe rwise w ould op en the do or to patently illegal searches by government officials, who would attempt to justify the legality of their conduct after-the-fact.” Pruitt, 174 F.3d at 1221 n.4.
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IV. CONCLUSION
Based on the foregoing, we conclude that Colston’s prolonged detention of Perkin s and S cott beyo nd the iss uance o f the traffic citation w as unco nstitution al. Colston’s inference from the totality of the circumstances that he observed was merely an unpartic ularized h unch th at failed to r ise to the lev el of reaso nable suspicion of other criminal activity. We thus AFFIRM the district court’s grant of Perkins and Scott’s motions to su ppress.