UNITED STATES, Appellee

v.

Winchester ROBINSON, JR., Technical Sergeant

U.S. Air Force, Appellant

No. 02-0148

Crim. App. No. 33925

United States Court of Appeals for the Armed Forces

Argued November 13, 2002

Decided July 8, 2003

GIERKE, J., delivered the opinion of the Court, in which EFFRON,

J., joined. CRAWFORD, C.J., filed a separate opinion concurring

in the result. BAKER and ERDMANN, JJ., each filed a separate

dissenting opinion.

Counsel

For Appellant: Major Jefferson B. Brown (argued); Lieutenant

Colonel Beverly B. Knott and Major Jeffrey A. Vires (on

brief); Lieutenant Colonel Timothy W. Murphy and Major Terry

L. McElyea.

For Appellee: Captain Matthew J. Mulbarger (argued); Colonel

Anthony P. Dattilo, Lieutenant Colonel Lance B. Sigmon, and

Captain Christa S. Cothrel (on brief); Lieutenant Colonel

LeEllen Coacher.

Military Judge: Barbara G. Brand

This opinion is subject to editorial correction before final publication.
United States v. Robinson, No. 02-0148/AF

2

Judge GIERKE delivered the opinion of the Court.

A general court-martial convicted the Appellant, pursuant to

his pleas, of failure to obey a lawful order, possessing cocaine,

using cocaine, and assault, in violation of Articles 92, 112a,

and 128, Uniform Code of Military Justice [hereinafter UCMJ], 10

U.S.C. §§ 892, 912a, and 928, respectively. Appellant’s pleas of

guilty to possession and use of cocaine were conditional pleas,

entered in accordance with Rule for Courts-Martial 910(a)(2).

The adjudged sentence, imposed by a panel of officer and enlisted

members, provides for a bad-conduct discharge, confinement for

six months, and reduction to pay grade E-4. The convening

authority approved the sentence but waived automatic forfeitures.

The Court of Criminal Appeals affirmed the findings and sentence.

United States v. Robinson, 56 M.J. 541 (A.F. Ct. Crim. App.

2001).

This Court granted review of the following issue:1

WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS ALL

EVIDENCE OBTAINED AS THE RESULT OF AN UNLAWFUL STOP AND

SUBSEQUENT SEARCH OF APPELLANT’S AUTOMOBILE.

For the reasons set out below, we affirm the decision of the

Court of Criminal Appeals.

Background

At the time of the offenses, the Appellant was assigned to

the 45th Communications Squadron at Patrick Air Force Base (AFB),

 

1

 We heard oral argument in this case at the Washington & Lee

University School of Law, Lexington, Virginia, on November 13,

2002, as part of “Project Outreach.” See United States v.

Mahoney, ___ M.J. ___ n.1 (C.A.A.F. 2003).
United States v. Robinson, No. 02-0148/AF

3

Florida. He was a Technical Sergeant (E-6) with approximately 19

years of active duty.

On the evening of February 27, 1999, Officer Mark Jennewein,

a member of the Melbourne, Florida Police Department, was working

the night shift on routine patrol. Before joining the Melbourne

Police Department, Officer Jannewein had been an Air Force

security policeman for over five years. His last military

assignment was at Patrick AFB. Melbourne is about six miles from

Patrick AFB.

Officer Jennewein was patrolling a high-crime area, known

for its drug and prostitution activity, in a marked police

cruiser. He was engaged in “a prostitution and drug

interdiction.” At about 1:00 a.m., he noticed a maroon four-door

Oldsmobile parked “right next to [a well-known drug dealer’s]

house in his dirt driveway or dirt lot.” His computer check of

the license plate number revealed that the registered owner lived

at 95-B Virginia. Officer Jennewein saw a sticker on the vehicle

that identified the registered owner as a noncommissioned officer

assigned to Patrick AFB. Officer Jennewein observed the car for

another 10 or 15 minutes and then was called away for other

duties.

Officer Jennewein continued his patrol and later parked his

car behind a vacant liquor store in another high drug and

prostitution area. Shortly thereafter, he saw the same maroon

Oldsmobile travelling on the roadway. As soon as Officer

Jennewein’s marked police cruiser pulled out behind the

Appellant’s vehicle, the Appellant quickly made a right turn,

without signaling, into an unpaved alley next to an apartment
United States v. Robinson, No. 02-0148/AF

4

complex. The sudden turn did not cause Officer Jennewein to

brake suddenly or swerve. Officer Jennewein testified that

failure to signal a turn is an indicator of impaired driving. He

decided to stop Appellant’s vehicle when it made the sudden turn

without signaling. He activated his red and blue lights and made

a traffic stop at approximately 1:30 a.m.

Officer Jennewein approached the Oldsmobile and asked the

Appellant to produce his driver’s license, vehicle registration,

and proof of insurance. Appellant fumbled with his wallet and

was able to present his driver’s license, but he was not able to

find his registration and proof of insurance. Officer Jennewein

told him to keep looking for the other documents.

There was a passenger in the Appellant’s car, who was

“rough” looking, with tattered clothing, and somewhat emaciated,

“like a street person.” The passenger had no identification, but

said he lived in the neighborhood and that his name was Floyd

Simmons. Mr. Simmons said he knew the Appellant because they had

worked together for the last six months as concrete block masons.

Officer Jennewein checked for outstanding warrants against Mr.

Simmons, determined that there were none, and allowed him to

leave. Officer Jennewein asked the Appellant how he knew Mr.

Simmons, and Appellant indicated they had just met.

After about 10 minutes, the Appellant found his registration

and proof of insurance. Meanwhile, Officer Duffy arrived in her

patrol car as a backup, having heard Officer Jennewein report the

traffic stop on the police radio. Officer Jennewein noticed that

the address on the Appellant’s registration did not match the

address on his driver’s license.
United States v. Robinson, No. 02-0148/AF

5

Officer Jennewein requested a computer check for outstanding

warrants against the Appellant. He was told to wait because of

another request ahead of him. While waiting for a response, he

began writing a ticket for failing to update the address on the

driver’s license. He gave Appellant a “verbal” warning for

failing to signal his turn.

Officer Jennewein asked Appellant if he had any drugs or

weapons in his car, and Appellant said he did not. Officer

Jennewein then asked him to consent to a search of his vehicle.

When Appellant declined, Officer Jennewein requested that a

canine unit be sent to the scene.

Officer Jennewein asked Appellant about the military sticker

on his vehicle, and Appellant responded that he was in the

military. Officer Duffy asked Appellant for his military

identification, and Appellant complied. Officer Jennewein then

noticed that the date of birth on Appellant’s military

identification card was different from the date of birth on his

driver’s license. Appellant said that the Department of Motor

Vehicles had made a mistake and would not allow him to correct

it.

While conversing with Appellant, Officer Jennewein noticed

an odor of alcohol coming from Appellant’s person. Appellant’s

speech seemed somewhat “mumbled” and his eyes were watery and

bloodshot.

Officer Jennewein was still writing the citation for the

out-of-date address on the driver’s license and still waiting for

the computer check on Appellant when the canine unit arrived at

approximately 1:48 a.m. Officer Jennewein asked Officer Gary
United States v. Robinson, No. 02-0148/AF

6

Markowski, the canine officer, to walk the canine around the car.

When Officer Markowski asked Appellant to move back to avoid

interfering with the canine, he noticed that Appellant “seemed to

be a bit slow in his actions,” and “seemed to be sluggish with

his speech and his movements[.]”

Officer Jennewein advised Appellant that he suspected him of

driving under the influence of alcohol, and he asked him to

submit to a field sobriety exercise. Appellant refused.

Meanwhile, the canine alerted on Appellant’s vehicle. Officer

Jennewein advised Appellant that he was being detained upon

probable cause that he had a narcotic substance in his car.

Appellant was handcuffed and placed in the patrol car.

Officers Jennewein and Markowski searched Appellant’s

vehicle and found rock cocaine and drug paraphernalia. Officer

Jennewein then informed Appellant he was under arrest for

possession of cocaine as well as driving under the influence of

alcohol. Officer Jennewein testified that he would have arrested

Appellant and searched his car even if the canine had not

alerted.

At trial, Appellant moved to suppress “any and all evidence,

including but not limited to cocaine, urine and blood tests and

results, observations of the police officers, and military

[identification] card obtained as the result of the unlawful

seizure of the accused and resulting search of his vehicle[.]”

The defense argued that there was no probable cause and “no

justifiable or legal reasons for the stop” of Appellant’s

vehicle, because the turn without signaling did not violate

Florida law. The defense further argued that the stop was
United States v. Robinson, No. 02-0148/AF

7

“unreasonably extended” to conduct a canine search of the

vehicle.

Officer Jennewein did not specifically mention Florida law

in his testimony. He referred to the failure to signal as an

indicator of impaired driving and as a “traffic infraction.” The

only references to Florida law were in the defense’s written

motion to suppress and in oral argument on the motion.

The military judge made extensive findings of fact that

comported with the uncontested testimony of Officers Jennewein

and Markowski. Among these findings of fact, the military judge

found, “Officer Jennewein initiated a traffic stop based upon the

failure to properly signal.” The military judge ruled that

Officer Jennewein had probable cause to stop Appellant for a

traffic violation when Appellant braked suddenly and turned

without signaling; that, after making the traffic stop and

observing Appellant, Officer Jennewein had a reasonable suspicion

that Appellant was impaired; that the alert by the canine

provided probable cause to search the vehicle; and that the

cocaine and paraphernalia would have been inevitably discovered

even if the dog had not alerted, because it would have been

discovered during a search incident to arrest.

The military judge also ruled that the duration of the stop

(approximately 21 minutes) was reasonable, based on the need to

run two separate computer checks on Appellant and his passenger,

the delay in receiving the second computer check because of heavy

police activity, the inability of Appellant to promptly produce

his registration and proof of insurance, and the prompt arrival

of the canine unit while Officer Jennewein was still waiting for
United States v. Robinson, No. 02-0148/AF

8

the computer check and still writing the citation for the out-ofdate address.

The military judge concluded that the Fourth Amendment was

not violated; accordingly, she denied the motion to suppress.

The Court of Criminal Appeals did not disturb the military

judge’s findings of fact or make additional findings of fact.

However, the court held that Officer Jennewein did not have

probable cause to stop Appellant for a traffic violation, because

Florida law requires a turn signal only when another vehicle is

“affected” by the turn,2 and Appellant’s sudden turn without

signaling did not affect Officer Jennewein by causing him to

brake or swerve. However, the court concluded that the facts as

found by the military judge were sufficient to establish

reasonable suspicion sufficient to justify stopping Appellant’s

vehicle. Finally, the lower court concluded, as did the military

judge, that the duration of the stop was reasonable.

 

2 The statute provides:

No person may turn a vehicle from a direct course upon a

highway unless and until such movement can be made with

reasonable safety, and then only after giving an appropriate

signal in the manner hereinafter provided, in the event any

other vehicle may be affected by the movement.

Fla. Stat. ch. 316.155 (2002)(emphasis added).

The Florida Supreme Court has held that § 316.155 is not violated

by a failure to signal a turn if the turn did not affect any

other vehicle. State v. Riley, 638 So.2d 507, 508 (Fla. 1994).

The Florida Supreme Court’s interpretation of state law is

entitled to full faith and credit, “absent some prevailing

federal interest properly proven.” United States v. Allen, 27

M.J. 234, 239 (C.M.A. 1988).
United States v. Robinson, No. 02-0148/AF

9

Discussion

Appellant now asserts that Officer Jennewein stopped his

vehicle under the erroneous belief that he had committed a

traffic violation. He also asserts that the facts were

insufficient to justify an investigative stop, because there was

not enough evidence to establish reasonable suspicion that he was

involved in ongoing criminal activity. Appellant has not

challenged the duration of the stop.

The Government has not challenged the lower court’s holding

regarding Florida law. Instead, the Government argues that the

totality of the circumstances were sufficient to establish

reasonable suspicion that Appellant was engaged in illegal

activity. Since the Government does not assert that there was

probable cause for a traffic stop of the Appellant’s vehicle, we

limit our discussion to the question whether Officer Jennewein

had reasonable suspicion that Appellant was engaged in criminal

activity.

We review issues involving reasonable suspicion de novo.

Ornelas v. United States, 517 U.S. 690, 699 (1996). An

investigative stop of an individual is permissible under the

Fourth Amendment “where a police officer observes unusual conduct

which leads him reasonably to conclude in light of his experience

that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1,

30 (1968). Similarly, an investigative stop of a motor vehicle

is constitutionally permissible where there is reasonable

suspicion that the occupants are engaged in wrongdoing. United

States v. Cortez, 449 U.S. 411, 418 (1981). Based on the

totality of the circumstances, “[T]he detaining officers must
United States v. Robinson, No. 02-0148/AF

10

have a particularized and objective basis for suspecting the

particular person stopped of criminal activity.” Id.

The concept of particularized suspicion has two elements.

The first element is that “the assessment must be based upon all

the circumstances.” As the Supreme Court explained:

The analysis proceeds with various objective

observations, information from police reports, if such

are available, and consideration of the modes or

patterns of operation of certain kinds of lawbreakers.

From these data, a trained officer draws inferences and

makes deductions – inferences and deductions that might

well elude an untrained person.

Id. This process of inferences and deductions “does not deal

with hard certainties, but with probabilities.” Id.

The second element of the particularized suspicion required

is “that the process just described must raise a suspicion that

the particular individual being stopped is engaged in

wrongdoing.” Id. The factual basis for reasonable suspicion

must be more than a mere “hunch.” Terry, 392 U.S. at 27.

However, it need not rise to the level of probable cause, and it

falls considerably short of a preponderance of the evidence.

United States v. Sokolow, 490 U.S. 1, 7 (1989).

In considering the totality of the circumstances, the

detaining officer may consider a series of acts which are

innocent in themselves, but which, taken together, warrant

further investigation. United States v. Arvizu, 534 U.S. 266,

274-75 (2002). While mere presence in a high-crime area,

standing alone, is insufficient for reasonable suspicion, it is a

“relevant contextual consideration.” Illinois v. Wardlaw, 528

U.S. 119, 124 (2000)(citing Adams v. Williams, 407 U.S. 143, 144,

147-48 (1972)). Unprovoked flight “is not necessarily indicative
United States v. Robinson, No. 02-0148/AF

11

of wrongdoing, but it is certainly suggestive of such.” Id.

Evasive behavior is a relevant consideration. United States v.

Brignoni-Ponce, 422 U.S. 873, 885 (1975); United States v.

Larios-Montes, 500 F.2d 941, 944 (9th Cir. 1974)(passengers in

vehicle appeared to be trying to hide). The fact that a vehicle

appears out of place is relevant. United States v. Gonzalez, 190

F.3d 668, 672 (5th Cir. 1999)(Border Patrol agents who were

familiar with local traffic on isolated road did not recognize

vehicle and noted it had out-of-state license plates). Finally,

the time of day is relevant. Id.; United States v. Lender, 985

F.2d 151, 154 (4th Cir. 1993) (presence in known drug area at

1:00 a.m.); United States v. Knox, 950 F.2d 516, 519 (8th Cir.

1991)(presence in high-crime area late at night).

In this case, Appellant was twice seen by Officer Jennewein

in high crime areas at an unusual time. The first time

Appellant’s vehicle was parked in “right next to” a well-known

drug dealer’s house. Appellant’s vehicle, owned by an Air Force

noncommissioned officer who lived on Patrick AFB, was out of

place. Appellant’s presence was sufficiently unusual that

Officer Jennewein kept his vehicle under surveillance until he

was called away by his dispatcher. A short time later, Officer

Jennewein saw Appellant’s vehicle a second time, cruising in a

nearby high-crime neighborhood. As soon as Officer Jennewein

pulled out behind Appellant’s vehicle, Appellant made a sudden

turn into an unpaved alley. Even if the turn was not illegal

under Florida law, it was (1) evasive, (2) an indicator of

impaired driving, and (3) unusual because it was a sudden turn

onto an unpaved alley that was not a customary roadway.
United States v. Robinson, No. 02-0148/AF

12

Considering the totality of the circumstances, we hold that

Officer Jennewein had reasonable suspicion sufficient to justify

an investigative stop of the Appellant’s vehicle.

When we review a military judge’s ruling to admit or

suppress evidence, we review the military judge’s factfinding

under the clearly-erroneous standard and conclusions of law de

novo. United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.

1995). There was no dispute regarding the predicate facts in

this case. The only litigated issues at trial were Officer

Jennewein’s legal authority to stop the Appellant’s car and the

duration of the stop.

In this case, the military judge erroneously concluded that

Officer Jennewein had probable cause to stop the Appellant for a

traffic violation. However, the military judge’s error was

harmless, because the military judge reached the correct result,

albeit for the wrong reason. We agree with the Court of Criminal

Appeals that the facts found by the military judge were

sufficient to establish reasonable suspicion for an investigative

stop.

After making the investigative stop, Officer Jennewein

quickly discovered evidence that Appellant had failed to update

the address on his license and that he was driving while

impaired. While Officer Jennewein was writing the citation for

the driver’s license violation, the canine alerted, giving him

probable cause to search the vehicle. See United States v.

Alexander, 34 M.J. 121, 125 (C.M.A. 1992)(canine’s alert provided

probable cause for search). Even before the dog alerted, Officer

Jennewein had already decided that he had probable cause to
United States v. Robinson, No. 02-0148/AF

13

arrest Appellant for driving while impaired. We hold that the

military judge did not err by denying the motion to suppress the

evidence obtained as a result of the investigative stop.3

Decision

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

 

3

 In light of our holding that Officer Jennewein had reasonable

suspicion to stop Appellant’s vehicle, and that the canine’s

alert provided probable cause to search the vehicle, we need not

decide whether the military judge correctly concluded that the

evidence would have been inevitably discovered.
United States v. Robinson, No. 02-0148/AF

CRAWFORD, Chief Judge (concurring in the result):

The issue of whether the police officer had a reasonable

suspicion that justified making an investigative stop of

Appellant’s motor vehicle is admittedly a close question in this

case. Nevertheless, what is clear from the factors discussed

and the analysis set forth by the majority is that the officer

acted with a good faith belief that he had a legally justifiable

reasonable suspicion to stop Appellant’s motor vehicle.

Therefore, I would apply the good faith exception to the

exclusionary rule in this case and affirm Appellant’s

conviction.

This case presents the issue of whether the exclusionary

rule should apply to evidence seized as a result of an

investigative stop which the officer reasonably, but mistakenly,

believed was a violation of Florida traffic law. The question

of whether to invoke the good faith exception to a police

officer's warrantless stop has divided state and federal courts.

See, e.g., United States v. Ramirez-Lujan, 976 F.2d 930 (5th

Cir. 1992); United States v. Williams, 622 F.2d 830, 840 (5th

Cir. 1980); State v. Greer, 683 N.E.2d 82 (Ohio Ct. App. 1996);

but see State v. Deherrera, 965 P.2d 501 (Utah Ct. App. 1998).

The Military Rules of Evidence permit the admission of evidence

derived from searches and seizures that otherwise satisfy the
United States v. Robinson, No. 02-0148/AF

2

United States Constitution. See, e.g., Military Rules of

Evidence 314(k), 316(f).

The Fourth Amendment provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated; and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched and the persons or

things to be seized.

The amendment has two clauses -- the reasonableness clause and

the warrant clause. It has no express provision for a remedy

when evidence is obtained as a result of an illegal search or

seizure. For more than 100 years after the American Revolution,

the remedy for an illegal search or seizure was a trespass

action for damages. In an early English decision, well known in

this country, Entick v. Carrington, 19 Howell’s State Trials

1029 (1765), the police ransacked Entick’s home for four hours

to obtain pamphlets that were highly critical of the king. Lord

Camden, Lord Chief Justice of the Common Pleas, struck down the

search warrant and awarded Entick 300 pounds in damages. He

declared:

This power so assumed by the secretary of state

is an execution upon all the party’s papers, in the

first instance. His house is rifled; his most

valuable secrets are taken out of his possession,

before the paper for which he is charged is found to

be criminal by any competent jurisdiction, and before

he is convicted either of writing, publishing, or

being concerned in the paper.
United States v. Robinson, No. 02-0148/AF

3

Id. at 1064.

The same Lord Camden invalidated the general warrants

employed against John Wilkes, per the publication of Issue No.

45, The North Britons. Wilkes v. Wood, 98 Eng. Rep. 484 (K.B.

1763). Even the early courts in this country recognized that

damages were the appropriate remedy.

If the search warrant were illegal, or if the officer

serving the warrant exceeded his authority, the party

on whose complaint the warrant issued, or the officer,

would be responsible for the wrong done; but this is

no good reason for excluding the papers seized as

evidence, if they were pertinent to the issue.

Commonwealth v. Dana, 43 Mass. (2 Met.) 329, 337 (1841).

The first move away from the remedy of damages was signaled

in Boyd v. United States, 116 U.S. 616 (1886), in which the

Court excluded documents obtained from Boyd’s house because a

“seizure of a man’s private books and papers to be used in

evidence against him is [not] substantially different from

compelling him to be a witness against himself.” Id. at 633.

Justice Bradley derived his conclusion in part from the

following passage in Entick:

It is very certain that the law obligeth no man to

accuse himself; because the necessary means of

compelling self-accusation, falling upon the innocent

as well as the guilty, would be both cruel and unjust;

and it should seem, that search for evidence is

disallowed upon the same principle. There too the

innocent would be confounded with the guilty.
United States v. Robinson, No. 02-0148/AF

4

19 Howell’s State Trials at 629.

The remedy the courts eventually formulated, the

exclusionary rule for Fourth Amendment violations, was first

enunciated in Weeks v. United States, 232 U.S. 383 (1914). Even

after Weeks, the state courts resisted the exclusionary rule.

Justice Cardozo questioned whether the “criminal is to go free

because the constable has blundered.” People v. Defore, 150 N.E

585, 587 (N.Y. 1926). He commented that although a number of

states have applied Weeks, more have rejected it. “With

authority thus divided, it is only some overmastering

consideration of principle or of policy that should move us to

change. The balance is not swayed until something more

persuasive than uncertainty is added to the scales.” Id. at

588.

Nevertheless, in Mapp v. Ohio, 367 U.S. 643 (1961), the

Court applied the exclusionary rule to the states. In Mapp, the

Court justified the exclusionary rule by placing emphasis on

“the imperative of judicial integrity.” Id. at 659 (quoting

Elkins v. United States, 364 U.S. 206, 222 (1960)). The Court

reasoned that the government had to play fair and could not be

allowed to profit from illegal acts. Justice Black believed

that the self-incrimination clause of the Fifth Amendment
United States v. Robinson, No. 02-0148/AF

5

coupled with the Fourth Amendment justified the rule. Id. at

661-62 (Black, J., concurring).

The Court identified a second reason for the rule: to curb

police misconduct effectively. As the Court stated, “the

purpose of the exclusionary rule ‘is to deter -- to compel

respect for the constitutional guaranty in the only effectively

available way -- by removing the incentive to disregard it.’”

Mapp, 367 U.S. at 656 (quoting Elkins v. United States, 364 U.S.

206, 217 (1960)). The Court emphasized this purpose again in

United States v. Calandra, 414 U.S. 338, 347 (1974), by stating

that the exclusionary “rule’s prime purpose is to deter future

unlawful police misconduct and thereby effectuate the guarantee

of the Fourth Amendment against unreasonable searches and

seizures[.]”

In United States v. Leon, 468 U.S. 897 (1984), the Court

applied the good faith exception to the exclusionary rule.

Leon, a drug trafficker, was searched pursuant to a “facially

valid” search warrant obtained by the state police. At trial,

the evidence seized by the police was suppressed. The Court

held that the good faith search or seizure by the police

pursuant to a warrant does not require exclusion, even though

probable cause was lacking. The Court commented that to the

extent to which the exclusionary rule has no effect on the
United States v. Robinson, No. 02-0148/AF

6

behavior of magistrates as to the right to privacy, it is

misplaced. “[T]he marginal or nonexistent benefits produced by

suppressing evidence obtained in objectively reasonable reliance

on a subsequently invalidated search warrant cannot justify the

substantial cost of exclusion.” Id. at 922. While exclusion is

certainly warranted where there is a flagrant violation or a

reckless disregard of the facts in a case, the deterrence

rationale does not work when the officer is acting in good

faith, as in this case.

In 1992, this Court adopted Leon in United States v. Lopez,

35 M.J. 35 (C.M.A. 1992). The Court recognized that the

rationale in Leon “extends with equal force to search or seizure

authorizations issued by commanders who are neutral and

detached[.]” Id. at 39. In the past, the Courts of Military

Review had been split on applying the good faith exception, id.

at 40, and this Court had not clearly addressed the issue. We

recognized that the good faith exception would not apply where

there is intentional or reckless misconduct by the police, or

where the basis for the action was totally lacking, and thus was

unreasonable. Id. at 41-42. In this instance, there was not a

flagrant disregard of the stop rule or unreasonable conduct.

With this background, I now turn to the question of whether

and under what circumstances the good-faith exception to the
United States v. Robinson, No. 02-0148/AF

7

exclusionary rule can and should apply to a warrantless

investigative stop by a police officer.

The defendant in Greer was seen by the police officer

turning left into a cross-over area without using the left-turn

lane provided and then went in the other direction. The officer

stopped him for what appeared to be an illegal U-turn, but the

Court, interpreting the state’s statute, stated the officer’s

conclusion that it was an illegal U-turn may have been mistaken,

yet the Court held that the stop was not unreasonable and

applied the good-faith exception to a stop “based upon conduct

observed by the officer that the officer mistakenly, but

reasonably, believes to constitute a violation of law.” 683

N.E.2d at 83. The stop in Greer was a “minor transgression,”

and not an intentional or flagrant illegality. Id. at 86.

 The Fifth Circuit Court of Appeals has applied the goodfaith exception to an investigatory stop in Ramirez-Lujon.

Ramirez-Lujon was seen by a border patrol agent some 35 miles

from the border, 25 miles east of El Paso, Texas, traveling on

what was considered “a road to nowhere.” 976 F.2d at 931. Drug

smugglers were known to use this road to proceed to a known drug

distribution center. A border patrol agent with three years’

experience knew the locals who lived down that road. When he

saw Ramirez-Lujon’s pick-up truck, he did not recognize it as a
United States v. Robinson, No. 02-0148/AF

8

vehicle belonging to one of the ranchers who lived on the road

and decided to investigate. After following the vehicle for

some four miles, he decided to make a stop.

The court upheld the stop, based either on “the

constitutional test of reasonableness or the good-faith

exception.” Id. at 933. The court held that “under all the

circumstances, [the border patrol agent] acted with an

objectively reasonable good faith belief that he had a

reasonable articulable suspicion that legally justified stopping

Ramirez[-Lujan].” Id. at 934. The court decided not to address

the constitutionality of the stop because it “was sufficiently

justified under the good-faith exception.” Id. at 934 n.4.

The rationale in Greer and Ramirez-Lujon applies to this

case. The majority holds that there was reasonable suspicion to

stop Appellant.

Appellant was twice seen by Officer Jennewein in high

crime areas at an unusual time. The first time

Appellant’s vehicle was parked in “right next to” a

well-known drug dealer’s house. Appellant’s vehicle,

owned by an Air Force noncommissioned officer who

lived on Patrick AFB, was out of place. Appellant’s

presence was sufficiently unusual that Officer

Jennewein kept his vehicle under surveillance until he

was called away by his dispatcher. A short time

later, Officer Jennewein saw Appellant’s vehicle a

second time, cruising in a nearby high-crime

neighborhood. As soon as Officer Jennewein pulled out

behind Appellant’s vehicle, Appellant made a sudden

turn into an unpaved alley. Even if the turn was not

illegal under Florida law, it was (1) evasive, (2) an

indicator of impaired driving, and (3) unusual because
United States v. Robinson, No. 02-0148/AF

9

it was a sudden turn onto an unpaved alley that was

not a customary roadway. Considering the totality of

the circumstances, we hold that Officer Jennewein had

reasonable suspicion sufficient to justify an

investigative stop of the Appellant’s vehicle.

__ M.J. (11-12). Considering all the facts set forth by the

majority, it is clear that Officer Jennewein had an objectively

reasonable suspicion that Appellant was engaged in criminal

activity. Certainly, there was more than one basis for the

stop--the fact that one theory was precluded by the Florida

statute does not preclude the application of the criminal

misconduct theory under these facts.

Rejecting the exclusionary rule in this case would neither

denigrate Fourth Amendment values nor complicate the right to

privacy because this is not a question of police lawlessness.

Certainly, deterrence of police misconduct is not necessary in a

borderline case like this, where the officer has acted

reasonably and in good faith. The courts have applied a

reasonableness standard as to apparent authority, see Illinois

v. Rodriguez, 497 U.S. 177 (1990)(third-party consent); Winters

v. Adams, 254 F.3d 758 (8th Cir. 2001)(reasonable to detain

agitated occupant of parked car who police suspected may be

overdosing); Gallegos v. Colorado Springs, 114 F.3d 1024 (10th

Cir. 1997)(reasonable to stop and check distraught person

walking in the middle of the street), and many other exceptions
United States v. Robinson, No. 02-0148/AF

10

to the Fourth Amendment such that it would be incongruous not to

apply it here. California v. Acevedo, 500 U.S. 565, 580

(1991)(many reasonableness exceptions to the Fourth Amendment).

Whether the exclusionary rule is based on judicial

integrity, see, e.g., Olmstead v. United States, 277 U.S. 438,

470, 484 (1928)(Holmes and Brandeis, JJ., dissenting), or the

deterrence of police misconduct, Terry v. Ohio, 392 U.S. 1, 13

(1968), neither justification would require suppression in this

case.

A “police officer will not be deterred from an illegal

search if he does not know that it is illegal.” Charles

Alan Wright, Must the Criminal Go Free if the Constable

Blunders?, 50 Tex.L.Rev. 736, 740 (1972). Because the

officer’s action in this case was reasonable, I would not

apply the exclusionary rule and would affirm Appellant’s

conviction.
United States v. Robinson, No. 02-0148/AF

1

BAKER, Judge (dissenting):

I agree with the majority that an officer would have

reasonable suspicion to justify an investigative stop of a

vehicle where the totality of circumstances indicated that a

vehicle had been parked briefly in the early morning hours in

the driveway of a house known to be used for drug dealing, and

that it was thereafter driven in a manner indicative of impaired

driving. However, because I do not believe the facts

articulated on the record in this case support such a

conclusion, I respectfully dissent. In light of the factual

deficiencies in this case, I need not address Judge Erdmann's

fair concern regarding whether an appellate court could justify

an investigatory stop on grounds of reasonable suspicion where

the officer’s articulated reason for the stop was a mistaken

belief that Appellant had violated the law.

My analysis begins with United States v. Sokolow, 490 U.S.

1, 7 (1989), in which the Supreme Court expanded on Terry

stating:

In Terry v. Ohio, we held that the police can stop

and briefly detain a person for investigative purposes if

the officer has a reasonable suspicion supported by

articulable facts that criminal activity “may be afoot,”

even if the officer lacks probable cause.

The officer, of course, must be able to articulate

something more than an “inchoate and unparticularized

suspicion or ‘hunch.’” The Fourth Amendment requires

“some minimal level of objective justification” for making

the stop.
United States v. Robinson, No. 02-0148/AF

2

Id. at 7 (citations omitted). Thus, reasonable suspicion

includes both subjective and objective components -- an

officer’s reasonable suspicion based on articulable facts

objectively reviewed.*

In my view, the Fourth Amendment analysis in this case

hinges on Officer Jennewein’s articulation of two factual

questions: where was Appellant’s car parked and did Appellant

drive his car in an impaired manner?

First, in what manner was Appellant’s car “at” the house of

a known drug dealer, IL? Was it parked in the driveway, on the

street specifically in a manner associated with IL’s house or on

the street as any other car might have been? Officer

Jennewein’s testimony is not clear on this point. Appellant’s

 

*

 This case is different from Whren v. United States, 517 U.S. 806

(1996). In Whren, the issue was whether a court should look beyond an

officer’s articulated reasons for making an investigatory stop in determining

whether reasonable suspicion existed for the stop. Whren did not address the

question posed here: whether an investigative stop can be upheld under the

Fourth Amendment if an objective review of the record supported a finding of

reasonable suspicion, despite the fact that the officer did not articulate

those reasons as the basis for the stop and the articulated basis for the

stop was unreasonable.

The Court of Criminal Appeals applied a purely objective standard of

reasonableness in determining that Officer Jennewein had reasonable suspicion

to stop Appellant, based on language in Whren indicating that “[s]ubjective

intentions play no role in ordinary, probable cause Fourth Amendment

analysis.” United States v. Robinson, 56 M.J. 541, 545 (A.F. Ct. Crim. App.

2001)(citing Whren, 517 U.S. at 813). The court looked at all the facts

available to Officer Jennewein and concluded that “a reasonable officer aware

of these facts would have a lawful basis for a brief investigative stop.”

Id. at 548. However, this approach mischaracterizes the holding of Whren.

Whren did not alter the fundamental requirement that officers conducting

investigative stops must articulate facts that support reasonable suspicion.

If officers were not required to articulate some basis for the stop, courts

would be left to “speculat[e] about the hypothetical reaction of a

hypothetical constable,” an approach rejected by the Supreme Court in Whren

as unworkable. Whren, 517 U.S. at 815.
United States v. Robinson, No. 02-0148/AF

3

car is characterized at various points in the record as “in

front of,” “at Steele [St.] and Mathers,” “at [IL]’s,” “over at

[IL]’s,” “at a house,” and “right next to his house in his dirt

driveway or dirt lot.” In an urban environment the factual

distinction between parking on the street or in a driveway can

reflect the difference between particularized suspicion and

inchoate suspicion. In the abstract, there is a significant

difference between being parked in a “bad crime” driveway, and

being parked in a “bad crime” neighborhood, which the Supreme

Court has held, does not in itself provide reasonable suspicion

to justify an investigative stop. Illinois v. Wardlow, 528 U.S.

119, 124 (2000); Brown v. Texas, 443 U.S. 47, 52 (1979). Nor

did the Government move this testimony from the abstract to the

specific by either reconciling the different testimonial

statements regarding the location of Appellant’s car or by

showing with a map or photograph where Appellant’s car was

parked, thereby indicating how parking on the street necessarily

connected Appellant’s car with IL’s house. The Government also

did not clarify this discrepancy at oral argument, despite

persistent questioning from the judges. Moreover, the record

does not provide a sufficient factual basis to otherwise infer

suspicion from street parking alone.

Second, did Appellant demonstrate indicia of impaired

driving and did Officer Jennewein articulate suspected
United States v. Robinson, No. 02-0148/AF

4

impairment as a basis for stopping Appellant? Here too, the

record is amorphous. This may reflect the fact that the Fourth

Amendment search was argued at trial under the probable cause

rubric based on Appellant’s (lawful) failure to signal. On

appeal, the Government now finds itself arguing an alternative,

less developed, theory of reasonable suspicion.

On the one hand, impairment is certainly in the air at the

appellate level. Officer Jennewein testified about his training

in identifying impaired drivers. Officer Jennewein testified

that the failure to signal a turn and other kinds of conduct

such as “accelerating, decelerating, swerving in another lane of

traffic, wide turn, failure to signal, reckless driving, driving

without headlights, [and] erratic braking[,]” are factors

suggestive of impaired driving. Officer Jennewein also

testified that he would not have followed Appellant’s vehicle if

he had not previously seen the vehicle parked in some manner

adjacent to IL’s house.

On the other hand, Officer Jennewein, never fully delivers

the punch line by expressly stating that he stopped Appellant’s

car on account of his suspicion that the driver was impaired.

Moreover, on three separate occasions he testified that the sole

reason he stopped the vehicle was failure to properly use the

turn signal. Such language does not preclude the possibility

that Officer Jennewein was motivated by a concern over impaired
United States v. Robinson, No. 02-0148/AF

5

driving--the failure to signal being merely the final indicator

of impairment--but neither is it a clear articulation of

reasonable suspicion of impairment as the predicate for

Appellant’s stop.

Significantly, the military judge found that the officer

“initiated” his stop of the car because Appellant failed to

signal properly. The military judge, having heard the testimony

of the officer regarding his training, could have found

suspected impairment as part of the officer’s reasons for

stopping Appellant’s vehicle, but she chose not to make such a

finding. For sure, the military judge may have omitted such a

finding because she found it unnecessary given her conclusions

that probable cause existed for violation of the statute.

However, determining whether the military judge rejected the

finding of impairment or simply found it unnecessary to reach

would be appellate speculation.

In the absence of probable cause for failure to signal, the

Government was left on appeal to stand on two factual legs of a

reasonable suspicion ladder: the presence of Appellant’s vehicle

adjacent to a known drug dealer’s house and indicia of impaired

driving. Neither leg was clearly articulated in the record of

trial. In my view, when the uncertainties in both legs are

considered together, the record does not move from an inchoate

to a particularized showing of suspicion required by the
United States v. Robinson, No. 02-0148/AF

6

Terry/Sokolow line of cases. Something more particularized than

the presence on a street with a house used for drug dealing and

bad, but lawful driving, must be articulated to warrant an

investigative stop. The Government might have articulated

additional relevant facts at trial if it had known its ultimate

appellate posture, but that is not the record we have on appeal.
United States v. Robinson, 02-0148/AF

1

ERDMANN, Judge (dissenting):

I agree with the majority’s initial finding that Officer

Jennewein lacked probable cause to initiate a traffic stop of

Appellant’s car, based on his mistaken belief that a traffic

violation had occurred. In affirming the Air Force Court of

Criminal Appeals, however, the majority goes on to find that the

detaining officer had reasonable suspicion to justify an

investigatory stop of Appellant’s vehicle, i.e., “reasonable

suspicion” that the occupants were engaged in wrongdoing. I

dissent from both the analysis utilized by the majority and from

the finding that the facts known to the officer at the time of

the stop rose to the level of reasonable suspicion. I would

reverse the Air Force Court of Criminal Appeals.

The initial traffic stop in this case was made by Officer

Jennewein solely because Appellant failed to signal when he

turned his car into an alley. After the stop a canine unit

called by Officer Jennewein alerted on the car and following a

consensual search, cocaine was discovered. Appellant was

subsequently charged with possession and use of cocaine, amongst

other charges. At a proceeding pursuant to Article 39, Uniform

Code of Military Justice, 10 U.S.C. § 839 (2000), Appellant

contested the admission of the seized evidence, arguing that the

initial stop was in violation of the Fourth Amendment. The

military judge found no Fourth Amendment violation, ruling that
United States v. Robinson, 02-0148/AF

2

Officer Jennewein had probable cause to stop Appellant for a

traffic violation. Appellant subsequently entered a conditional

plea of guilty to the possession and use of cocaine

specifications.

The Air Force Court of Criminal Appeals found that under

Florida law there was no probable cause to believe that a

traffic violation had occurred, which rendered the stop in

violation of the Fourth Amendment. The lower court rejected,

however, Appellant’s argument that the evidence derived from the

stop must be suppressed. Seeking an alternative basis to uphold

the initial stop under the Fourth Amendment, the Air Force court

went on to “determine whether there is some other basis in the

law for the stop and the resulting searches that led to the

evidence of the use and possession of cocaine.” United States

v. Robinson, 56 M.J. 541, 544 (A.F. Ct. Crim. App. 2001). A

divided Air Force Court found that, despite the initial illegal

stop based on the traffic violation, the stop was reasonable

under the circumstances and the evidence was admissible.

Because Officer Jennewein testified that he made the stop

based only on the suspected traffic violation, the Air Force

Court adopted an analysis that allowed them to move beyond the

officer’s stated reason for the stop and determine whether a

“reasonable officer” would have had “reasonable suspicion” for

the stop. The lower court relied on Whren v. United States, 517
United States v. Robinson, 02-0148/AF

3

U.S. 806 (1996), for the proposition that the subjective

intentions of the detaining officer are irrelevant to a Fourth

Amendment analysis. In my view, Whren is inapposite and

provides no basis for seeking an alternate finding of

reasonableness after an invalid or unlawful traffic stop. The

majority opinion suffers this same delict: there is no

transitional analysis supporting an appellate court’s authority

to search for some other basis to uphold the stop after

determining that the only articulated, record basis for the stop

was unlawful.

As a general matter, the decision to stop an automobile is

reasonable where the police have probable cause to believe that

a traffic violation has occurred.1 Whren, 517 U.S. at 810. It

is important to note that the Court in Whren was dealing with a

case where the legality of the initial stop was not in question

and in fact was not even challenged on appeal. In Whren

District of Columbia police became suspicious of the defendant’s

car due to its temporary license plates, youthful occupants and

the fact that the driver remained stopped at an intersection for

what seemed to be an unusually long time while looking down into

 

1

 The cases in this area reference both the “probable cause”

standard and “reasonable suspicion” standard. In this context

the “probable cause” standard is applied when the officer has

reason to believe that an offense has occurred while the

“reasonable suspicion” standard is generally applied when the

officer believes that criminal activity “may be afoot.”
United States v. Robinson, 02-0148/AF

4

the lap of the passenger.2

 The police then observed the car turn

suddenly without signaling and drive off at an “unreasonable”

speed, activity that constituted valid traffic violations. The

police executed a stop based on the traffic violations and

observed two large plastic sacks of crack cocaine in Whren’s

hands.

The defendants argued that the police did not have probable

cause or even reasonable suspicion to believe that they were

engaged in an illegal drug activity and that the officer’s

asserted ground for the stop – to give the driver a warning

concerning the traffic violations – was pretextual.3

 The Supreme

Court found that the subjective intent of the officers does not

play a role in an ordinary probable cause Fourth Amendment

analysis. The Sixth Circuit later described Whren as holding

that “an officer may stop a vehicle for a traffic violation when

his true motivation is to search for contraband, as long as the

 

2

 It is difficult to conclude that these facts, standing alone,

would rise to the level of “reasonable suspicion” that criminal

activity is afoot.

3

 On appeal the defendants did not dispute that the traffic

violations constituted probable cause to support the stop.

Rather, they argued that, “in the unique context of civil

traffic regulations,” probable cause was not enough. United

States v. Whren, 517 U.S. 806, 810 (1996). Specifically they

argued that a higher standard was required to deter the

pretextual use of traffic stops as a means of investigating

other violations of the law as to which no probable cause or

even articulable suspicion exists. Id.
United States v. Robinson, 02-0148/AF

5

officer had probable cause to initially stop the vehicle.”

United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999), cert.

denied, 528 U.S. 1176 (2000).

The Supreme Court in Whren quoted Scott v. United States,

436 U.S. 128 (1978), for the principle that “subjective intent

alone . . . does not make otherwise lawful conduct illegal or

unconstitutional.” 517 U.S. at 813 (emphasis added). Whren

simply stands for the principle that an officer may legally stop

a vehicle after observing suspicious behavior that does not rise

to the level of “reasonable suspicion,” as long as there is

probable cause to believe there has been a traffic violation.

If failing to signal a turn under the circumstances

presented in this case had in fact been a valid traffic

violation in Florida,4

 then the fact that the officer’s real

motivation for the stop may have been suspicion of drug activity

would not have invalidated the seizure or subsequent search as

the officer would have had probable cause to make the traffic

stop. Those, however, are not the facts of this case. There is

no dispute that Florida law does not prohibit a turn without

signaling under the circumstances found here and that Officer

Jennewein made the stop based on a mistake of law.

 

4

 There is no evidence in this case that Officer Jennewein made

the stop based upon a suspicion of illegal drug activity. He

testified conclusively that the only reason for the stop was the

traffic violation.
United States v. Robinson, 02-0148/AF

6

In United States v. Miller, 146 F.3d 274 (5th Cir. 1998),

police stopped the defendant after he drove his motor home

through an intersection with his turn signal on, without

changing lanes or turning. The police found marijuana in the

motor home as the result of a subsequent consensual search, but

it was later determined that flashing a turn signal without

turning or changing lanes was not a violation of Texas law. In

finding that the evidence was not admissible, the Fifth Circuit

stated:

The rule articulated by the Supreme Court in Whren

provides law enforcement officers broad leeway to conduct

searches and seizures regardless of whether their

subjective intent corresponds to the legal justifications

for their actions. But the flip side of that leeway is

that the legal justification must be objectively grounded.

See Whren, 116 S.Ct. at 1774; see also Goodwin v. Johnson,

132 F.3d 162, 173 (5th Cir. 1998)(“So long as a traffic law

infraction that would have objectively justified the stop

had taken place, the fact that the police officer may have

made the stop for a reason other than the occurrence of the

traffic infraction is irrelevant for purposes of the Fourth

Amendment.” (emphasis added)). Here, given that having a

turn signal on is not a violation of Texas law, no

objective basis for probable cause justified the stop of

Miller.

146 F.3d at 279 (footnote omitted).

In United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir.

1999), the Fifth Circuit again addressed this area where an

officer mistakenly stopped a car for an improper taillight.

Although the officer thought in good faith that the broken

taillight constituted a traffic infraction the court held that
United States v. Robinson, 02-0148/AF

7

there was no probable cause for the stop. The government argued

that the drugs seized as a result of the stop should be admitted

under the good-faith exception to the exclusionary rule, but the

Court disagreed:

Under the general rule established in Whren, a traffic

infraction can justify a stop even where the police officer

made the stop for a reason other than the occurrence of the

traffic infraction. See Goodwin v. Johnson, 132 F.3d 162,

173 (5th Cir. 1998). But if officers are allowed to stop

vehicles based upon their subjective belief that traffic

laws have been violated even where no such violation has,

in fact, occurred, the potential for abuse of traffic

infractions as pretext for effecting stops seems boundless

and the costs to privacy rights excessive. Accordingly, we

hold that [the officer’s] actions do not pass muster under

the good-faith exception to the exclusionary rule.

178 F.3d at 289.

In United States v. Mariscal, 285 F.3d 1127 (9th Cir.

2002), a case remarkably similar to the underlying facts of this

case, police were conducting an undercover surveillance of a

residence and a vehicle parked at the residence. They observed

the car pull away from the house and make a right turn without

using mechanical or hand signals. A traffic stop was made based

on the failure to signal a turn. A subsequent search of the car

revealed a concealed weapon and one of the occupants admitted

that the gun was his and that he was in the country illegally.

Relying on a long line of Ninth Circuit authority, the court

stated:

If an officer simply does not know the law, and makes a

stop based upon objective facts that cannot constitute a
United States v. Robinson, 02-0148/AF

8

violation, his suspicions cannot be reasonable. The

chimera created by his imaginings cannot be used against

the driver. So, when an officer thought that a Baja

California vehicle registration statement had to be visible

from the rear, whereas the Baja California law required

that it be on the upper right corner of the windshield, the

officer’s mistaken belief could not “justify the stop under

the Fourth Amendment.” Lopez-Soto, 205 F.3d at 1106.

Similarly, when an officer thought that Michigan required

cars to have two license plates, but it indeed only

required one, a stop based on the two-plate theory was not

based on reasonable suspicion. Twilley, 222 F.3d at 1096.

Simply put:

A suspicion based on such a mistaken view of the law

cannot be the reasonable suspicion required for the

Fourth Amendment, because “the legal justification

[for a traffic stop] must be objectively grounded.”

In other words, if an officer makes a traffic stop

based on a mistake of law, the stop violates the

Fourth Amendment.

Id. (citations omitted); see also United States v. King,

244 F.3d 736, 741-42 (9th Cir. 2001)(a mistaken belief that

a driver’s conduct violated the law could not support a

reasonable suspicion that a crime had been committed, even

if the officer otherwise behaved reasonably).

285 F.3d at 1130.

While it is clear under Whren that evidence seized as the

result of a pretextual, although otherwise legal, traffic stop

is admissible, the issue here is whether Whren provides

authority for an appellate court to uphold admitting evidence

seized subsequent to an illegal traffic stop on the basis that

the stop was a lawful investigative stop based on reasonable

suspicion. Clearly it does not. The general rule is that if an

initial stop violates the Fourth Amendment, the evidence seized
United States v. Robinson, 02-0148/AF

9

as a result of the stop is subject to suppression. United

States v. Childs, 256 F.3d 559 (7th Cir. 2001).

Although the majority opinion does not provide the legal

basis for their analytical transition from the initial illegal

stop to the “reasonable suspicion” review, the danger in both

its approach and that of the Air Force Court is that an officer

can use an illegal traffic stop with impunity as long as an

alternative theory for admissibility of the evidence can later

be developed. As noted in Lopez-Valdez, 178 F.3d at 289, if a

subjective but mistaken belief that a traffic violation has

occurred is all that is required, “the potential for abuse of

traffic infractions as pretext for effecting stops seems

boundless and the costs to privacy rights excessive.” Further,

once the illegal traffic stop is made there is a natural

tendency to utilize the events and evidence discovered after the

stop to justify the initial stop, as evidenced by the extent to

which those facts are exhaustively discussed the decisions of

both Court of Criminal Appeals and the majority opinion.

 There is something troubling about a concept where the

initial police action violates the Fourth Amendment but an

appellate court later develops a theory which allows the

admission of the evidence. In upholding the admission of

evidence seized subsequent to an illegal traffic stop on the

basis that the stop was a lawful investigative stop based on
United States v. Robinson, 02-0148/AF

10

reasonable suspicion, the majority extends that concept further

than any reported court decision. I would hold that under the

Fourth Amendment the admission of the evidence is not allowable

and would reverse the court below on that basis.

However, even if the traditional analysis were applicable

to this situation, I would find a lack of “reasonable

suspicion.” Absent a warrant or probable cause to believe that

an occupant has committed or is committing a crime, including a

traffic violation, a law enforcement officer may lawfully stop a

vehicle when the officer has a reasonable, articulable suspicion

that criminal activity is afoot involving the vehicle. An

“officer must be able to articulate more than an inchoate and

unparticularized suspicion or hunch of criminal activity.”

Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000)(quoting Terry

v. Ohio, 392 U.S. 1, 27 (1968)(internal quotation marks

omitted)).

The majority sets forth three grounds in support of their

finding of “reasonable suspicion:”

Appellant was twice seen by Officer Jennewein in high crime

areas at an unusual time.

Actually, Appellant was not seen twice by Officer

Jennewein. The officer initially noticed a parked maroon fourdoor Oldsmobile that was registered to the Appellant. However,

he did not see the Appellant or anyone else in the car and he
United States v. Robinson, 02-0148/AF

11

had no idea who was driving the car. The record is unclear as

to where the car was parked, other than the fact that it was

parked in the vicinity of a “known crack-house.”

At the Article 39(a) hearing, Officer Jennewein testified

inconsistently as to exactly where the car was parked – and this

is a critical element for the Government to establish in the

“reasonable suspicion” analysis. If the car was legally parked

on a public street, then it would be less suspicious than if it

were parked “next to” or “in the driveway” of a known crack

house. On two occasions Officer Jennewein testified that the

car was parked “in front” of the house and three times he simply

stated the vehicle was “at” the house. On a single occasion he

testified that the car was parked “right next” to the house in

the “dirt driveway or dirt lot.” There is no reason to believe

that Officer Jennewein’s single assertion that the car was

parked next to the house is any more believable than his

multiple assertions that it was parked in front of or at the

house. The Air Force court found only that the car was “parked

outside the home.” Robinson, 56 M.J. at 547. The parties

stipulated later as part of the conditional plea that

Appellant’s car was “parked on Steele Street.”

The second time Officer Jennewein observed the car,

Appellant was driving down the public street in a legal manner.
United States v. Robinson, 02-0148/AF

12

The officer had not seen Appellant in the “known crack house”

nor had he seen him with any known criminals or drug dealers.

Appellant’s vehicle, owned by an Air Force noncommissioned

officer who lived on Patrick AFB, was out of place.

The fact that a vehicle or individual is located in a high

crime area is not, in itself, evidence of illegal conduct.5

Further, the fact that the vehicle was registered to an Air

Force noncommissioned officer adds little to a “reasonable

suspicion” analysis. Officer Jennewein’s testimony that “it’s

not a kosher place for a [military] member or a family member to

be” leads to the conclusion that it may be a kosher place for an

individual who is not a member of the military. Military

members come from all socio-economic backgrounds and may well

have valid reasons to visit family and friends in what are

characterized as “high crime areas.” It is completely

inappropriate to categorize military members as a “class”

deserving higher attention or suspicion from the police.

As soon as Officer Jennewein pulled out behind the

Appellant’s vehicle, the Appellant made a sudden turn into

an unpaved alley. Even if the turn was not illegal under

Florida law, it was (1) evasive, (2) an indicator of

impaired driving, and (3) unusual because it was a sudden

turn onto an unpaved alley that was not a customary

roadway.

 

5

 Brown v. Texas, 443 U.S. 47, 52 (1979); United States v. Basey,

816 F.2d 980, 989 (5th Cir. 1987); United States v. Davis, 94

F.3d 1465, 1470 (10th Cir. 1996); United States v. Sprinkle, 106

F.3d 613, 618 (4th Cir. 1997); United States v. Green, 111 F.3d

515, 520 (7th Cir. 1997), cert. denied, 522 U.S. 973 (1997).
United States v. Robinson, 02-0148/AF

13

Officer Jennewein testified that once he saw the four-door

maroon Oldsmobile drive by he “pulled out and as soon as [he]

pulled out, [he] got right behind it and the individual pulled

into an alley which is between Guava and Avocado [Streets] and

he failed to signal.” Officer Jennewein clarified, however,

that the distance between his vehicle and Appellant’s was 150

feet. While Officer Jennewein initially stated that the

Appellant “slammed on” his brakes when he pulled his police

cruiser into the street, he corrected himself and testified that

the Appellant “decelerated and stepped on the brake pedal and

abruptly turned right into the alleyway.” The Air Force court

determined only that “within two or three seconds that

[A]ppellant quickly turned off the roadway, without signaling.”

Robinson, 56 M.J. at 548. While certain conduct that

constitutes flight or avoidance of police is suggestive of

wrongdoing,6

 individuals driving in a normal, lawful manner have

not been considered to be evasive.7

 At no time did Officer

Jennewein testify that Appellant tried to evade him, speed away,

or do anything other than turn suddenly into an alley and then

 

6

 United States v. Raibley, 243 F.3d 1069 (7th Cir. 2001); United

States v. Elkins, 70 F.3d 81 (10th Cir. 1995); Commonwealth v.

Grandison, 741 N.E.2d 25 (Mass. 2001); State v. Vadnais, 677

A.2d 155 (N.H. 1996).

7

 Sprinkle, 106 F.3d at 617-18; State v. Haviland, 532 N.W.2d 767

(Iowa 1995).
United States v. Robinson, 02-0148/AF

14

stop after the officer turned his emergency lights on.

Impaired driving is simply not a reasonable conclusion to

be drawn from these facts. Absent an underlying traffic

offense, the mere failure to use a turn signal is not indicative

of criminal activity being afoot, including impaired driving.

Where the law does not mandate the use of the turn signal in the

first place, the wholly lawful act of turning without using the

signal bears no reasonable relationship to a lapse of judgment

indicative of impaired driving. The record makes clear that

Officer Jennewein did not perceive impairment as a basis for his

actions at the time this stop was actually made and it was not

found as a basis for the stop by the military judge or the Court

of Criminal Appeals.

The majority engages in speculation when it states that the

alley into which Appellant turned was not “customarily” used as

a roadway. This alley was not a short dead-end; it was a

through alley connecting two streets in the area of an apartment

building. According to Officer Jennewein, the alley “was used

by all the residents.” A reasonable, if not the sole, purpose

of this alley is vehicular traffic.8

 

8

 Interestingly, after the stop Officer Jennewein discovered that

the passenger in Appellant’s car lived “right there on Avacado

[Street].” To an experienced officer familiar with the area, a

turn at this point to drop off a passenger or visit a resident

of the apartment building would be usual and “customary.”
United States v. Robinson, 02-0148/AF

15

“Reasonable Suspicion”

“Reasonable suspicion” is “a particularized and objective

basis” for suspecting the person stopped of criminal activity.

Ornelas-Ledesma v. United States, 517 U.S. 690, 696 (1996).

“Reasonable suspicion” is formed by specific, articulable facts

which, together with objective and reasonable inferences, form

the basis for suspecting that the particular person detained is

engaged in criminal activity. United States v. Twilley 222 F.3d

1092, 1096 (9th Cir. 2000).

The pre-stop specific, articulable facts in this case

simply do not constitute “reasonable suspicion.” Although

recognizing that a Fourth Amendment analysis of reasonable

suspicion is objective and viewed through the eyes of the

reasonable officer, the Supreme Court has also held that

reviewing courts should look to the specialized training and

experience of the detaining officer to make inferences that

might elude an untrained person.9

 This analysis cuts both ways,

and here it is important to note that none of the reasons cited

by the majority rose to a level that Officer Jennewein, with his

specialized training and experience, considered sufficient to

rely upon as a basis for a “reasonable suspicion” stop. Rather,

Officer Jennewein testified repeatedly that the only basis for

 

9

 United States v. Arvizu, 534 U.S. 266, 273 (2002).
United States v. Robinson, 02-0148/AF

16

the stop was his belief that a traffic violation had occurred.

The majority is then left with the difficult task of

constructing a basis for “reasonable suspicion” where the

detaining officer articulated the grounds relied upon by the

majority and found them lacking.

The weight of evidence in the record indicates that

Appellant’s car was legally parked on a public street in a high

crime area. Appellant was not seen in the area of the crack

house, nor was he seen going into or out of the house. The

presence of his car in this location does not create a nexus

between him and criminal drug activity. While Appellant’s

military status seemed to have struck a chord with Officer

Jennewein, from an objective standpoint it does not create or

increase the level of suspicion. Assuming that it was unusual

for a car to be parked in that area, then it should be no more

unusual if the car is owned by a military member or by a

civilian.

The fact that Officer Jennewein later saw the car driving

down the street does not add any additional cause for suspicion.

The car had been earlier seen parked in the area and it is

logical that at some point it would be driven to another

location. Under these circumstances the legal movement of a

vehicle on a public street does not provide any additional basis

for “reasonable suspicion.” Finally, Appellant made a legal
United States v. Robinson, 02-0148/AF

17

turn into an alley. While Officer Jennewein and the majority

characterize the turn as “sudden,” Appellant didn’t slam on his

brakes, drive in an erratic fashion or do anything else that

would bring attention to him – other than failing to turn on his

turn signal. In fact, in a matter of three to four seconds,

Officer Jennewein covered the 150 foot distance between his

vehicle and Appellant’s, and followed Appellant through the turn

before effecting the stop.

Under the rationale adopted by the majority the following

facts would constitute “reasonable suspicion” that the car was

involved in illegal drug activity or that the driver was

impaired: a car owned by military member was seen parked in a

high crime area late at night in the vicinity of a known crack

house; the car was later seen driving down a public street and

turning into an alley in a sudden but legal manner.

Conclusion

The initial stop for a traffic offense was invalid and violated

the Fourth Amendment. I would hold the evidence should have

been suppressed and reverse the Air Force Court of Criminal

Appeals on that basis. Even if I engaged in a traditional

reasonable suspicion analysis, unembellished by what transpired
United States v. Robinson, 02-0148/AF

18

after the illegal stop, these facts do not rise to the level of

“reasonable suspicion” and the evidence should have been

suppressed.