United States v. Ronald Cortez Foreman

369 F.3d 776, 2004 U.S. App. LEXIS 10989, 2004 WL 1233992

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 4, 2004
• Docket: 03-4375
• Status: Published

Opinions

Vacated and remanded with instructions by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge LUTTIG joined. Judge GREGORY wrote a separate opinion concurring in part and dissenting in part.

HAMILTON, Senior Circuit Judge.

The United States appeals from a district court order granting Ronald Cortez Foreman’s motion to suppress evidence seized following the search of his Mercury Moutaineer on U.S. Route 13 (Route 13) in Northhampton County, Virginia on June 5, 2002. For the reasons stated below, we vacate the district court’s order and remand the case to the district court with instructions to enter an order denying Foreman’s motion to suppress.

I

A

At approximately 7:00 a.m. on June 5, 2002, Virginia State Police Trooper C.S. Wade (Trooper Wade) was working a narcotics interdiction assignment on the southbound side of Route 13 in North-hampton County, Virginia, just north of the Chesapeake Bay Bridge.¹ At that time, Trooper Wade observed Ronald Cortez Foreman (Foreman) in a “tense posture” driving a 1997 Mercury Mountaineer, holding the steering wheel with both hands and staring straight ahead as he passed Trooper Wade on Route 13. After following Foreman in his patrol car, Trooper Wade observed two traffic infractions: (1) excessive speed and (2) several air fresheners, hanging from the rearview mirror, obstructing the driver’s windshield view, each in violation of Virginia state law. In response to Trooper Wade’s activation of his emergency lights, Foreman drove his vehicle partially off the road and came to a stop.

Immediately upon approaching Foreman, Trooper Wade observed Foreman’s pulse beating through his shirt, his hands visibly shaking, and the carotid artery on his neck throbbing more noticeably than the “thousands of people” that Trooper Wade had stopped in the past. (J.A. 32). Trooper Wade observed a fold of currency in the center console of Foreman’s vehicle, but did not see any luggage.²

Foreman accompanied Trooper Wade to his patrol car and sat in the passenger seat while Trooper Wade conducted a driver’s license check. While Trooper Wade was waiting for the results of the driver’s license check, Trooper R.M. Harcourt, Jr. (Trooper Harcourt) arrived on the scene with his drug dog.³ During the driver’s license check, Trooper Wade asked Foreman about his destination. Foreman indicated that he was returning from a one-day trip to New York City to assist his brother who had been evicted on the evening of June 4, 2002. When Trooper Wade spoke of the problem of gun and drug smuggling on Route 13, he observed that Foreman’s breathing became heavier and the pulsating of his carotid artery became more obvious. After inquiring about weapons in his vehicle, Trooper Wade inquired about narcotics in the vehicle, to which Foreman responded in the negative. Foreman also indicated that the only money he had was that already seen by Trooper Wade in the center console of the Mercury Mountaineer.

When Trooper Wade ascertained that Foreman’s driver’s license and registration were in order, he gave him a verbal warning regarding the speeding and windshield obstruction infractions. Trooper Wade returned Foreman’s driver’s license and registration, after which Foreman thanked Trooper Wade for the warnings and gave him a sweaty handshake. After the handshake, Foreman exited Trooper Wade’s patrol car and stated that “he was going to take the air fresheners down right then.” (J.A. 37). . At this point, Foreman ostensibly was free to leave.

The following excerpt from the record is Trooper Wade’s testimony at the suppression hearing regarding what happened next:

After he stepped out of the vehicle, which led me to believe that he was leaving, I asked him if I could ask him some more questions, or ask him some questions, and he stated, sure. I then again informed him of the problems of gun and drug smuggling on Route 13 and asked him if I could search his car, and Mr. Foreman initially stated, yeah, and then immediately after that stated, well, no, I don’t want anybody searching my car.

(J.A. 37).⁴

As soon as Foreman indicated that he would not consent to the drug dog sniff, Trooper Wade signaled Trooper Harcourt to “run his dog around the exterior of the vehicle.” (J.A. 39). Trooper Wade then advised Foreman that he would have the drug dog-that was on the scene run around the outside of the vehicle. Foreman nodded and stepped back.

Trooper Harcourt then deployed his drug dog on the exterior of Foreman’s vehicle and the drug dog alerted. The parties agree that the duration of time from the initial stop until the drug dog alerted to Foreman’s vehicle was approximately ten minutes.

During the ensuing search of the vehicle, the law enforcement officers recovered $800 in cash, approximately one kilogram of cocaine, and approximately 10.5 grams of cocaine base (crack). After the drugs were discovered, Foreman was arrested.

B

On November 12, 2002, in a one-count indictment, Foreman was charged by a federal grand jury in the Eastern District of Virginia with possession of cocaine with intent to distribute, 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(iii). On December 17, 2002, Foreman filed a motion to suppress. On January 16, 2003, the district court held a hearing, in which only Trooper Wade and Trooper Harcourt testified. At the hearing, a videotape and its partial audio-track recording of the stop was admitted into evidence.⁵

On January 24, 2003, a superseding indictment for Foreman was returned, adding a count of possession with intent to distribute crack, 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(iii). On April 1, 2003, the district court ruled on Foreman’s suppression motion from the bench, granting the motion to suppress. On April 15, 2003, the United States filed a motion for reconsideration, which the district court denied in a written opinion and order filed on June 6, 2003. The United States filed a timely notice of appeal.

II

On appeal, the United States contends that the district court erred when it granted Foreman’s motion to suppress. According to the United States, the seizure of the currency, cocaine, and crack from Foreman’s vehicle did not violate Foreman’s Fourth Amendment rights. Foreman counters by arguing that the seizure did violate his Fourth Amendment rights.

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. Temporary detention of an individual during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of a person within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court first held that the Fourth Amendment requires that a brief investigatory-stop of an individual be supported by reasonable suspicion. The Terry reasonable suspicion standard requires an officer to have a reasonable suspicion that criminal activity is afoot. Id. at 30, 88 S.Ct. 1868.

Following Terry, the law has become well established that during a routine traffic stop, an officer may request a driver’s license and vehicle registration, run a computer check, and issue a citation. United States v. Rusher, 966 F.2d 868, 876-77 (4th Cir.1992). Any further investigative detention, however, is beyond the scope of the Terry stop and, therefore, illegal unless the officer has a reasonable suspicion of other criminal activity or the individual consents to the further detention. Id.; see also United States v. Sullivan, 138 F.3d 126, 131 (4th Cir.1998). The Supreme Court has ruled that a drug dog sniff is not a search within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696, 706-07, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). However, in order to perform the sniff, there must be a seizure of the vehicle and, therefore, the person, requiring either consent to be detained or reasonable suspicion. United States v. McFarley, 991 F.2d 1188, 1191 (4th Cir.1993).

The standard of “reasonable suspicion” as used to evaluate the constitutionality of a Terry stop is not readily, or even usefully, reduced to a neat set of legal rules, but, rather, entails common sense, nontechnical conceptions that deal with factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act. Ornelas v. United States, 517 U.S. 690, 695-96, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The reasonable suspicion standard, like the probable cause standard, is a fluid concept which takes its substantive content from the particular context in which the standard is being assessed. Id.

The Supreme Court has recognized that factors consistent with innocent travel can, when taken together, give rise to reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (“[A]ny one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion.”). Thus, Sokolow teaches us that it is not enough that Trooper Wade could articulate factors underlying his decision to order the drug dog sniff if Trooper Wade’s articulated factors are not probative of behavior in which few innocent people would engage. The articulated factors together must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied.

Notably, the reasonable suspicion standard “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). However, the Terry reasonable suspicion standard does require “a minimal level of objective justification” for the police action. Id.

Because reasonable suspicion is an objective test, we examine the facts within the knowledge of Trooper Wade to determine the presence or nonexistence of reasonable suspicion; we do not examine the subjective beliefs of Trooper Wade to determine whether he thought that the facts constituted reasonable suspicion. United States v. Gray, 137 F.3d 765, 769 (4th Cir.1998). Additionally, it must be noted that, because the Terry reasonable suspicion standard is a commonsensical proposition, “[c]ourts are not remiss in crediting the practical experience of officers who observe on a daily basis what transpires on the street.” United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993).

The determination of whether given facts amount to reasonable suspicion vel non is a legal one, which we review de novo. Ornelas, 517 U.S. at 699, 116 S.Ct. 1657. Of course, the factual determinations themselves are given deference. “[A] reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Id.

In its decision, the district court observed that, once Trooper Wade returned Foreman’s driver’s license and registration, gave Foreman verbal warnings concerning his traffic infractions, and ostensibly allowed Foreman to leave, the lawful seizure engendered by the traffic stop ended.⁶ According to the district court, once the lawful seizure occasioned by the traffic stop ended, Foreman was seized a second time by Trooper Wade, this time to conduct the drug dog sniff. In determining whether this second seizure was permissible, the district court observed that Trooper Wade, like the court itself, was not entitled to rely on any factors tending to show reasonable suspicion that occurred prior to the termination of the traffic stop; rather, the district court concluded that Trooper Wade, like the court itself, was required to look for “consent” or “additional suspicion” that could justify a second seizure. (J.A. 136). Concluding that there was no consent and no additional suspicion occurring after the traffic stop ended, the district court held that the second seizure of Foreman to permit time to conduct a drug dog sniff violated Foreman’s Fourth Amendment rights.

C

The parties agree that Foreman did not consent to the drug dog sniff. Consequently, the Fourth Amendment issue in the case turns on whether Trooper Wade had reasonable suspicion to order the drug dog sniff. Before we can address this question, though, we must address a more abstract analytical question raised by the district court’s analysis in this case. That is, we must address whether it was appropriate for the district court, in determining whether there was reasonable suspicion for the drug dog sniff, to ignore all of the events which occurred before the time Trooper Wade returned Foreman’s paperwork and allowed him to exit his patrol car, ie., ostensibly allowing Foreman to leave.

The district court did not cite any case law supporting the proposition that it was required to ignore all of the events which occurred before the time Trooper Wade ostensibly allowed Foreman to leave. We are aware of none. In fact, the Tenth Circuit has held that the termination of a traffic stop does not immediately negate the objectively reasonable suspicions developed by a police officer during a traffic stop. United States v. Williams, 271 F.3d 1262, 1271 (10th Cir.2001), cert. denied, 535 U.S. 1019, 122 S.Ct. 1610, 152 L.Ed.2d 624 (2002).

In Williams, the defendant was stopped for speeding by a Kansas Highway Patrol Trooper. Id. at 1264. In the mind of the trooper, several factors during the stop added up to reasonable suspicion that the defendant was involved in drug trafficking. First, the trooper noticed at the outset of the stop that the defendant exhibited extreme nervousness, which never dissipated throughout the entire stop. Id. at 1265. Second, the trooper noticed a walkie-talkie type radio commonly used by people traveling in tandem on the front passenger seat. Id. Third, in lieu of a vehicle registration card, the defendant handed the trooper a rental agreement which bore a different name than the one on the defendant’s valid driver’s license. Id. Finally, the defendant’s travel plans, as articulated by the defendant to the trooper, were unusual. Id.

Despite the trooper’s suspicions of criminal activity, the trooper returned the license and rental agreement to the defendant. Id. “In addition, the [trooper] said something to the effect of, ‘Thanks a lot. We’ll see you.’ ” Id. However, the trooper then asked the defendant’s permission to ask him a few questions. Id. The defendant agreed. Id.

The trooper first asked whether the defendant was carrying any contraband or large amounts of cash to which the defendant replied no. Id. The trooper then asked the defendant if he could search the vehicle. Id. The defendant refused. Id. At that point, the trooper informed the defendant that he would detain him until a canine unit could arrive at the scene and sniff the outside of the vehicle. Id. Approximately fifteen minutes from the time of the initial stop, the canine unit arrived and eventually alerted to the trunk area of the vehicle. Id. “After obtaining the keys and opening the trunk, the [trooper] discovered several large bales of marijuana.” Id.

Following his arrest, the defendant moved to suppress the marijuana as evidence. The district court held that the trooper possessed sufficient reasonable suspicion to further detain the defendant for the purpose of the drug dog sniff. Id. at 1266. In so holding, the district court relied upon factors that occurred prior to the trooper returning the defendant’s travel documents and verbally indicating that he was free to leave. Id.

On appeal before the Tenth Circuit, the defendant challenged the denial of his motion to suppress, inter alia, on the ground that the trooper’s return of his travel documents and verbal indication that he was free to leave nullified any of the suspicion that had developed throughout the stop. Id. at 1270-71. In rejecting the defendant’s argument, the Tenth Circuit stated:

Mr. Williams fails to cite any case, nor can we find any, suggesting that the return of such documentation negates an officer’s objectively reasonable suspicions developed during a traffic stop. Although the record indicates that the [trooper] subjectively intended that Mr. Williams was free to go, the relevant inquiry in this case is based on the objective facts known to the [trooper], not upon the [trooper’s] subjective state of mind.... Whether the [trooper] never intended to release Mr. Williams or whether he simply changed his mind after the consensual questioning does not alter our analysis if the [trooper] already had sufficient reasonable suspicion to detain Mr. Williams for the purpose of the canine drug search. We therefore conclude that the [trooper’s] indication to Mr. Williams that he was free to leave bears no significance in our determination of whether the [trooper] had reasonable suspicion to detain Mr. Williams.

Id. at 1271. We find the Williams decision persuasive and conclude that the district court should have examined all of the circumstances surrounding Foreman’s encounter with Trooper Wade in determining whether there was reasonable suspicion for the drug dog sniff.⁷

D

The remaining question in the case is whether Trooper Wade had reasonable suspicion to order the drug dog sniff. The United States argues that the following factors, when taken together, constitute reasonable, articulable suspicion for the brief, additional detention necessary to conduct the drug dog sniff of Foreman’s vehicle: (1) Foreman’s unusual travel explanation that he traveled from Norfolk, Virginia to New York City (a major source city) and back (approximately seven hours each way) within a single day to visit his brother who was purportedly evicted; (2) Foreman’s tense posture while driving; (3) physical signs of extreme nervousness on the part of Foreman throughout the stop Ce.g., heavy breathing, heavy sweating, and pulsating of the carotid artery), which physical signs of nervousness grew worse when Trooper Wade raised the issue of drug smuggling on Route 13 where the stop occurred; (4) the multiple air fresheners hanging from Foreman’s rearview mirror that are often used to mask the smell of narcotics;⁸ and (5) Trooper Wade’s experience with drug interdiction that Route 13 had become a frequented corridor for illegal narcotics flowing from New York City and other points north to the Tidewater area of Southeastern Virginia.

Foreman responds by offering innocent explanations for each of the factors relied upon by the United States. Notably, Foreman concedes that his explanation of his trip to New York City is “unusual.” Appellee’s Br. at 17. He, nonetheless, discounts its importance on the basis that his explanation “is not inherently implausible.” Id.

In our opinion, the factors cited by the United States eliminate a substantial portion of innocent travelers and, therefore, amount to reasonable suspicion that Foreman was engaged in drug trafficking. It is important to remember that, in making our reasonable suspicion determination, we must examine the totality of the circumstances, meaning that reasonable suspicion may exist even if “each of the[] factors alone is susceptible of innocent explanation.” United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Thus, to begin with, the vast majority of innocent travelers do not and would not drive seven hours to New York City, stay only a few hours, and return. This highly unusual travel plan coupled with the following factors, when viewed objectively, are sufficient to create a reasonable suspicion that criminal activity is afoot: (1) New York City is a known source city for illegal narcotics, United States v. Bueno, 21 F.3d 120, 121 (6th Cir.1994) (New York City “is a known source city for narcotics.”); (2) Foreman had several air fresheners commonly used to mask the smell of narcotics hanging from his rearview mirror, United States v. Foley, 206 F.3d 802, 804, 806 (8th Cir.2000) (air freshener hanging from rearview mirror added to reasonable suspicion determination of drug trafficking because air fresheners are often used to mask the smell of narcotics); (3) Foreman was exceptionally nervous and became even more so when Trooper Wade raised the issue of drug trafficking on Route 13, United States v. Lebrun, 261 F.3d 731, 734 (8th Cir.2001) (defendants’ exceptional nervousness during traffic stop {e.g., sweating profusely on a cold day, hands shaking) and increased agitation when asked routine questions by officer about travel plans and purpose of trip added to reasonable suspicion determination of drug trafficking); and (4) Trooper Wade’s experience with drug interdiction that Route 13 had become a frequented corridor for illegal narcotics flowing from New York City and other points north to the Tidewater area of Southeastern Virginia, United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (“characteristics of the area in which [the officers making stop] encounter a vehicle” is significant factor in formulation of reasonable suspicion); Lender, 985 F.2d at 154 (“Courts are not remiss in crediting the practical experience of officers who observe on a daily basis what transpires on the street.”). Finally, we note that Foreman has not cited any case law finding reasonable suspicion lacking under the same or a materially similar factual scenario.

We note that similar to the legal arguments made by Foreman in this appeal, our dissenting colleague attempts to show that reasonable suspicion did not exist by attacking the factors upon which we rely one factor at a time. Of course, this is not the proper analytical framework for determining whether reasonable suspicion supports a Terry stop, which proper analytical framework the Supreme Court has repeatedly admonished involves a totality of the circumstances inquiry. See, e.g., Arvizu, 534 U.S. at 277, 122 S.Ct. 744. While the dissent takes great pains to point out discrepancies in Trooper Wade’s testimony and the district court’s skepticism of some of that testimony in an effort to forecast that the district court would discredit other portions of Trooper Wade’s testimony if given the chance on remand to do so, the bottom line is that the existence of the factors that we rely upon to hold that reasonable suspicion existed to support the very brief detention of Foreman and his vehicle in order to conduct the minimally intrusive drug dog sniff of the exterior of his vehicle are not in dispute.

Finally, we observe that in an attempt to buttress his case for suppression of the evidence, Judge Gregory assumes the posture of the advocate, taking notice of facts outside the record and proffering arguments that Foreman himself did not make before the district court nor this court. For example, the dissent relies upon extra-record weather reports to offer an innocent explanation for Foreman’s sweatiness at seven o’clock in the morning. The point wholly missed by the dissent is that, while the court can take judicial notice of the temperature that day, Foreman never argued that his sweatiness was due to warm weather as opposed to being a physical manifestation of nervousness. Indeed, Foreman does not contest on appeal Trooper Wade’s description of his nervous behavior.⁹

Ill

To sum up, we hold that Trooper Wade had reasonable articulable suspicion to order the drug dog sniff of Foreman’s vehicle. For that reason, we vacate the district court’s order granting Foreman’s motion to suppress and remand the case with instructions to dismiss Foreman’s motion to suppress.

VACATED AND REMANDED WITH INSTRUCTIONS

1 . Despite Judge Gregory’s assertions to the contrary, the facts, as we recite them, are not in dispute for purposes of this appeal. Federal Rule of Appellate Procedure 28(a)(7) obligates an appellant to include in his opening brief “a statement of facts relevant to the issues submitted for review with appropriate references to the record ...Furthermore, although an appellee need only include a statement of facts in his responsive brief if he is dissatisfied with the appellant's version, if the appellee chooses to include a statement of facts in his responsive brief, such statement must conform with Rule 28(a)(7). Fed. R.App. P. 28(b).

Here, Foreman’s statement of facts in his responsive brief very closely tracks that of the government, ■ including reciting many sentences nearly verbatim. Pursuant to Federal Rule of Appellate Procedure 28(b), we must consider the facts that Foreman included in his statement of the facts as the facts he deems "relevant to the issues submitted for review ....” Fed. R.App. P. 28(a)(7). With the exception of a few minor details, the facts, as we recite them, appear in Foreman’s statement of facts, and the ones that do not are either ancillary to our legal analysis or are otherwise undisputed. More importantly, the undisputed facts, as we recite them, unquestionably are supported by the record before us.

Moreover, with all due respect to my dissenting colleague, Foreman’s responsive brief can in no way reasonably be read to contest the facts that he had already deemed relevant to the issues submitted for review in his statement of facts. For example, the pages of Foreman’s brief which Judge Gregory cites as support that Foreman disputes the veracity of Trooper Wade’s testimony regarding Foreman exhibiting signs of nervousness do not support such a proposition. Rather, in those pages, Foreman very clearly accepts Trooper Wade’s description of him as nervous, as well as the details of that behavior, and only presents arguments concerning the legal significance of his exhibited nervousness.

2 . In an attempt to bolster his dissenting view that reasonable suspicion did not exist to support the brief detention of Foreman and his vehicle in order to conduct the drug dog sniff of the vehicle, Judge Gregory takes time in Part II.A.3 of his dissent to emphasize that the district court found questionable Trooper Wade's testimony that he did not see any luggage in Foreman’s vehicle during the initial stage of the stop. Whether the district court found this portion of Trooper Wade's testimony questionable is of no moment in the present appeal. First, in Foreman's statement of facts, he states affirmatively that "[t]he trooper ... did not see any luggage at that point.” (Foreman’s Responsive Br. at 4). Second, we in no way rely on Trooper Wade's testimony regarding the lack of luggage for our holding that reasonable suspicion existed to support the brief seizure of Foreman and his vehicle in order to conduct the drug dog sniff. Similarly, we do not rely upon Trooper Wade’s testimony that he observed a fold of currency in Foreman's center console as part of our reasonable suspicion analysis. Thus, Part II.A.4. of Judge Gregory's dissent has no bite.

3 . At some early point in Trooper Wade's encounter with Foreman, Trooper Wade called for back-up in the form of a drug dog.

4 . At the suppression hearing, Trooper Wade explained that, when a driver is suspected of trafficking drugs, the preferable procedure at a traffic stop is to obtain the driver’s consent to search as opposed to ordering a drug dog sniff. To that end, Trooper Wade testified that, at a traffic stop, he often returns the driver’s paperwork and allows him to leave his patrol car and start walking away. At that point, when the circumstances of the stop are less (or non) custodial, Trooper Wade asks for the driver’s consent to search the vehicle. If the individual does not consent to the drug dog sniff, Trooper Wade will order one if he concludes he has reasonable suspicion to do so.

5 . Presumably because neither party deemed the content of the videotape with its partial audio-track recording relevant to the issues on appeal, neither party designated such material nor a copy of such material as part of the joint appendix pursuant to Federal Rule of Appellate Procedure 30.

6 . In its decision, the district court concluded that Trooper Wade's initial traffic stop of Foreman was lawful because Trooper Wade had objective reasons for executing the stop: "Foreman was speeding, and there were windshield obstructions in violation of the Virginia Code.” (J.A. 130). Neither party takes issue with this conclusion reached by the district court. Additionally, we note that while Judge Gregory, in dissent, makes much to do about a "pretexual stop” by Trooper Wade, he concedes, as he must, that "the legality of the initial stop is not in dispute.” Post at 787 n. 3.

7 . We also note that the district court's chosen analytical path was obviously influenced in part by its distaste of Trooper Wade's law enforcement technique of releasing an individual following a traffic stop in order to aid in obtaining the individual’s voluntary consent for a drug dog sniff of his vehicle. According to the district court, Trooper Wade could not play this "cat and mouse game— now you're free to go, now you’re not” because it did "not advance the interests of justice,” nor did it "preserve those rights promised under the Fourth Amendment.” (J.A. 135-36). For obvious reasons, the district court was not at liberty to ignore all of the events which occurred before the time Trooper Wade ostensibly allowed Foreman to leave because Trooper Wade employed a minor act of trickery. Indeed, the "use of trickery is an accepted tool of criminal law enforcement.” Alexander v. DeAngelo, 329 F.3d 912, 917 (7th Cir.2003); see also United States v. Orso, 266 F.3d 1030, 1039 (9th Cir.2001) (en banc) (false statement that witness had seen him with a gun was not coercive), cert. denied, 537 U.S. 828, 123 S.Ct. 125, 154 L.Ed.2d 42 (2002); Lucero v. Kerby, 133 F.3d 1299, 1311 (10th Cir.1998) (lie regarding fingerprint evidence).

8 . Foreman claims the United States waived its right to rely on the presence of the air fresheners in his vehicle by failing to rely on this factor below. Foreman is incorrect on this point. The record shows that the United States did indeed rely below on the presence of the air fresheners in Foreman's vehicle as one of the factors adding up to reasonable suspicion to seize briefly Foreman and his vehicle in order to conduct the drug dog sniff of Foreman’s vehicle. (J.A. 124).

The fact that the government did so in its motion for reconsideration of the district court's suppression order as opposed to at the suppression hearing itself is of no moment because the district court obviously excused any default on behalf of the government when it addressed the government's arguments head-on in ruling on the motion for reconsideration. Cf. Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir.1999) ("[A]n issue presented for the first time in a motion pursuant to Federal Rule of Civil Procedure 59(e) generally is not timely raised; accordingly, such an issue is not preserved for appellate review unless the district court exercises its discretion to excuse the party’s lack of timeliness and consider^] the issue.”).

9 . We also note that the newspaper article containing statistical information regarding air fresheners cited by Judge Gregory, post at 796-97, is also outside the record. More importantly, such statistical information is not the type of evidence that is subject to judicial notice under Federal Rule of Evidence 201. Id. (providing, among other things, that for a court to take judicial notice of a fact it "must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”).