PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 03-4375

RONALD CORTEZ FOREMAN,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca Beach Smith, District Judge.

(CR-02-210)

Argued: December 5, 2003

Decided: June 4, 2004

Before LUTTIG and GREGORY, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

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. 

COUNSEL

ARGUED: Brian Lee Whisler, Assistant United States Attorney,

Norfolk, Virginia, for Appellant. Walter Bruce Dalton, Assistant Federal Public Defender, Norfolk, Virginia, for Appellee. ON BRIEF:

Paul J. McNulty, United States Attorney, Norfolk, Virginia, for
Appellant. Frank W. Dunham, Jr., Federal Public Defender, Frances

H. Pratt, Research and Writing Attorney, Norfolk, Virginia, for

Appellee. 

OPINION

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 Northhampton

County, Virginia, just north of the Chesapeake Bay Bridge.1 At that

1Despite 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

2 UNITED STATES v. FOREMAN
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

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

UNITED STATES v. FOREMAN 3
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 freluggage 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. 

3At some early point in Trooper Wade’s encounter with Foreman,

Trooper Wade called for back-up in the form of a drug dog. 

4 UNITED STATES v. FOREMAN
sheners 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. 

4At 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. 

UNITED STATES v. FOREMAN 5
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)(1)(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)(1)(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. 

5Presumably 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 UNITED STATES v. FOREMAN
A

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 (1979). 

In Terry v. Ohio, 392 U.S. 1 (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. 

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 (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

(1996). The reasonable suspicion standard, like the probable cause

UNITED STATES v. FOREMAN 7
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 (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." Wardlow v. Illinois, 528

U.S. 119, 123 (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. 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

8 UNITED STATES v. FOREMAN
to inferences drawn from those facts by resident judges and local law

enforcement officers." Id.

B

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

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 17

n.3. 

UNITED STATES v. FOREMAN 9
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, i.e., 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 (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

10 UNITED STATES v. FOREMAN
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.

UNITED STATES v. FOREMAN 11
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 (e.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

7We 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 (2002); Lucero v. Kerby,

133 F.3d 1299, 1311 (10th Cir. 1998) (lie regarding fingerprint evidence). 

12 UNITED STATES v. FOREMAN
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 (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

8Foreman 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[s] the issue."). 

UNITED STATES v. FOREMAN 13
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.2d 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 (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. 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,

14 UNITED STATES v. FOREMAN
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

III

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

9We also note that the newspaper article containing statistical information regarding air fresheners cited by Judge Gregory, post at 32, 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").

UNITED STATES v. FOREMAN 15
GREGORY, Circuit Judge, concurring in part and dissenting in part:

On June 5, 2002, Ronald Cortez Foreman, an African-American

male, drove past Trooper Wade on southbound U.S. Route 13 in

Northampton County, Virginia. Trooper Wade, assigned to a narcotics interdiction unit, had just completed the search of another vehicle

when he observed Foreman drive by while "holding the steering

wheel with both hands and . . . staring straight ahead." R. vol. 4 at 2

(Trooper Wade’s Virginia State Police Investigation Report dated

June 5, 2002). Trooper Wade pulled onto Route 13 and followed

Foreman’s 1997 Mercury Mountaineer, because of Foreman’s "lack

of eye contact1 and his tense posture when he passed by," which

Wade testified were "key indicator[s] in the possibility of criminal

activity being afoot . . . ." J.A. 52.2 Trooper Wade testified that he

began to follow Foreman to "see if I could find a violation," id. at 30

(emphasis added), and admitted "[i]n an attempt to find a violation on

1Trooper Wade’s instant reliance on Foreman’s lack of eye contact is

at odds with the government’s stance in other cases, in which officers

attempt to ground reasonable suspicion — and sometimes successfully

do so — on the fact that an individual looks or stares back at them. See,

e.g., United States v. Holland, 510 F.2d 453, 456 (9th Cir. 1975) (reversing district court’s suppression and finding reasonable suspicion because,

among other factors, the vehicle’s occupants "stared at the officers for

what they believed to be an unusually long time"); see also United States

v. Pratt, 355 F.3d. 1119, 1120 (8th Cir. 2004) (noting that because suspect "looked at officers . . . twice" and jogged to an empty lot, the officers concluded he was trying to avoid them and a Terry stop ensued);

Price v. Kramer, 200 F.3d 1237, 1247 n.12 (9th Cir. 2000); United States

v. Griffin, 150 F.3d 778, 784 (7th Cir. 1998); United States v. Madison,

936 F.2d 90, 91 (2d Cir. 1991). 

2Before this case, I was not familiar with the notion that compliance

with the letter of textbook driver’s education instructions would trigger

police suspicion, i.e., both hands on the wheel, no rubbernecking. See,

e.g., Va. Dep’t of Motor Vehicles, Va. Driver Manual § 2 (Dangerous

Driving Behaviors) (2004) (recognizing the danger of distracted driving

and stating "[k]eep your eyes on the road and your hands on the wheel

at all times") (emphasis added), at http://www.dmv.state.va.us/webdoc/

citizen/drivers/vadm/vadm2-5.asp; Dep’t of Justice (of Montana),

Motor Vehicle Div., Montana Driver License Manual 2002-2003 52

("Do not rubberneck at crashes, someone getting a ticket, or other roadside activity. Rubbernecking could cause you to be in a crash.") (emphasis added), available at http://www.doj.state.mt.us/driving/

montanadriverlicensemanual.pdf. 

16 UNITED STATES v. FOREMAN
[Foreman’s] vehicle . . . I was going to conduct a pretextual stop, stop

him for a traffic violation, conduct a brief interview of him, see if I

observed any indicators of other criminal activity . . . ." Id. at 60

(emphasis added). Because Trooper Wade paced Foreman’s vehicle

at a speed of sixty-four miles per hour over a one-half mile stretch of

road where the speed limit was fifty-five, and observed "items hanging from the inside rearview mirror," he activated his emergency

lights to make the stop, which Trooper Wade admitted was pretextual.

See R. vol. 4 at 2.3

After making the stop, Trooper Wade requested Foreman’s license

and registration and ordered Foreman to join the officer in his cruiser

while Wade conducted the license check. While in the cruiser,

Trooper Wade immediately "informed [Foreman] of the problems of

gun and drug smuggling on Route 13," J.A. 34, and asked Foreman

if he was carrying drugs or guns. After completing the license check,

Trooper Wade returned Foreman’s papers and gave him verbal warnings on the traffic violations, however, Trooper Wade continued his

detention of Foreman which ultimately led to a dog sniff of the vehicle that revealed Foreman was carrying illegal narcotics. 

The majority correctly recognizes, ante at 7, that although a dog

sniff is not a search requiring probable cause, such a search cannot be

effectuated without a seizure of the vehicle, and that such a seizure

requires consent or reasonable articulable suspicion. See United States

3Here, the legality of the initial stop is not in dispute. Although

Trooper Wade admits the reasons for the traffic stop were pretextual,

once he observed Foreman speeding and noticed the state law rear view

mirror violation, probable cause arose for the traffic stop. See Whren v.

United States, 517 U.S. 806, 813 (1996) (rejecting argument that constitutional reasonableness of stops depends on the actual motivation of the

officer, and stating "the Constitution prohibits selective enforcement of

the law based on considerations such as race" through the Equal Protection Clause, not the Fourth Amendment). Here, while Foreman stated

that the "stop was pretextual in nature" and claimed that his vehicle was

stopped "because it fit the profile," Mot. Suppress at 4 (emphasis added),

he asserted that the evidence should be suppressed because the "‘pretextual stop’ [was] in violation of [his] Fourth Amendment rights," id. at 3,

but he did not, in the district court or in this court, advance an Equal Protection claim. 

UNITED STATES v. FOREMAN 17
v. McFarley, 911 F.2d 1188, 1191 (4th Cir. 1993) (citing United

States v. Place, 462 U.S. 696, 700-01 (1983)). Before the district

court, Trooper Wade and the government repeatedly argued that Foreman consented to the dog sniff.4

 In support of this theory, Trooper

Wade testified that he asked Foreman if he would consent to the dog

sniff, and Foreman "nodded his head up and down . . . ." J.A. 39; see

also id. at 88 (statement by the Assistant United States Attorney that

Foreman consented to the dog sniff). The district court, however,

explicitly rejected Trooper Wade’s testimony. The district judge

stated that she had watched a videotape of the detention filmed from

Trooper Wade’s cruiser and remarked "I didn’t see that on the tape,

and [Wade’s] notes indicate that he denied the consent to search the

vehicle . . . ." Id. at 88-89. In ruling from the bench, the court added:

The only indication [of consent to the dog sniff] is there is

some testimony, which is not on the videotape, and I have

watched this videotape, I would say, at least three to four

times, to try to see everything that’s there and everything

that is on it. There is testimony about a nod. There is no evidence of a nod in this case. There is no evidence of it on the

tape, and frankly there are some inconsistencies here in this

case.

4

See, e.g., J.A. 43 ("the defendant had been told that he was free to go,

and then voluntarily consented to a conversation"); at 44 ("I would submit that the facts of the case are that the defendant agreed to continue his

conversation with Trooper Wade, and furthermore agreed to have the

drug dog run around his car"); id. at 88 ("[I]t was a consensual encounter

. . . . The defendant agreed [to answer a few questions], and then [Wade]

asked him if he would mind having the dog run around the car, and he

nodded his head and he stepped back."); id. at 89 ("the defendant did in

fact consent to answer questions and did consent to having the drug dog

run around his car"); id. at 90 ("[Foreman] consented to remain after he

was told — not told, but given an indication he was free to go."). The

government submitted an entire brief on the consensual nature of the

encounter, see id. at 98-101, yet only after having its evidence suppressed, and in filing a Motion for Reconsideration, did the government

begin to focus on its argument that "reasonable suspicion" provided a

basis for the dog sniff. See id. at 119-25. 

18 UNITED STATES v. FOREMAN
Id. at 113 (emphasis added). 

Having rejected the consent theory, the district court analyzed this

case as two separate detentions5 — (1) Trooper Wade’s initial questioning and license check and (2) Trooper Wade’s continued questioning after returning Foreman’s papers — because the court found

the second detention violative of the Fourth Amendment, it never

addressed whether reasonable suspicion materialized. See, e.g., J.A.

136 (Dist. Ct. Slip Op. at 8) (stating that "the court evaluated the

asserted reasonable suspicion and determined that, as Trooper Wade

chose to end the traffic stop, he had, or should have, satisfied any suspicions that he held at that time" without determining the legal effect

of such suspicions (emphasis added)). Although I share the district

court’s concern that an officer’s signal that a driver is free to leave

may place that driver in a difficult position with regard to reinitiation

of detention, I believe the facts before us are insufficient to raise a

dissipation problem. On this basis, I join the majority’s conclusion in

Part II.C that the district court erred by analyzing Foreman’s interactions with Wade as two separate incidents. 

I cannot, however, join the majority in concluding that "reasonable,

articulable suspicion" was present. Unlike in United States v. Williams, 271 F.3d 1262, 1271 (10th Cir. 2001), upon which the majority

relies, the district court in this case made no findings of fact to support "reasonable suspicion." Nor can we impose such findings on this

record. 

To support its holding that reasonable suspicion existed, the majority closely adheres to the government’s proposed reading of the facts,

although the district court did not credit many of the government’s

factual contentions.6 To the contrary, based on its review of video and

5

I note that the government urged this interpretation. In its brief in

response to Foreman’s motion to suppress, the government wrote "because Wade had returned the defendant’s documents and told him that

he was free to go, Wade had ended his detention and began a consensual

encounter before again questioning the defendant about contraband and

requesting permission to search the defendant’s vehicle." J.A. 24 (Resp.

Mot. Suppress at 5). 

6Admittedly, the Appellee’s briefing may be partly to blame for the

majority’s willingness to accept the government’s narrative. For in the

UNITED STATES v. FOREMAN 19
audio tape of the Terry stop in question, the district court repeatedly

cast doubt on Trooper Wade’s credibility and the government’s theory of the case — indeed, the district judge defined "much" of the evidence presented by the government as "questionable." Accordingly,

when the facts are properly viewed in the light most favorable to

Appellee, the prevailing party, the remaining purported indicia of reasonable suspicion are insufficient to support reversal. Thus, I would

remand this case for plenary consideration of the issue of reasonable

articulable suspicion, and therefore I respectfully dissent. 

I.

The issue before us is whether Trooper Wade’s continued detention

of Foreman was supported by reasonable suspicion based on specific

and articulable facts that criminal activity may be afoot. Terry v.

Appellee’s opening brief, he largely recites the very statement of the

facts which the government presented in its opening brief. See Br. of

Appellee at 3-7. However, upon a careful reading of Appellee’s brief, it

is clear that he continued to contest the government’s account of the

facts. See id. at 15-17 (challenging the officer’s testimony that defendant

was nervous and that his story was inherently suspicious); id. at 19 & n.3

(challenging the government’s reliance on the presence of air fresheners

in the car and questioning the officer’s credibility and stating "[t]he government takes issue with the district court’s findings as to Trooper

Wade’s credibility. . . . This Court should give due deference to the district court’s findings as to credibility"); id. at 22 (arguing that we should

carefully review and scrutinize the officer’s testimony regarding the reasons for the stop and detention). In fact, Appellee’s counsel began his

oral argument by emphasizing that we must consider the evidence in

light most favorable to the defendant and immediately called into question the officer’s credibility and relied on the fact that Judge Smith

watched a videotape of the stop and "had some reasons to question

Trooper Wade’s credibility." Recording of Oral Argument, December 5,

2003. Further, he argued that the district judge "had some problems with

Trooper Wade’s explanation for how [the sound went dead and] his other

discrepancies. I would submit that these discrepancies and contradictions

certainly caused the court to have some questions about Trooper Wade’s

credibility which affected the analysis of the factors supporting reasonable suspicion." Id.

20 UNITED STATES v. FOREMAN
Ohio, 392 U.S. 1, 30 (1968); See also Illinois v. Wardlow, 528 U.S.

119, 123-24 (2000) (discussing "reasonable, articulable suspicion").

During a traffic stop, if the driver presents a valid license, registration

and proof that he or she is authorized to drive the car, the driver is

free to go. "Any further detention for questioning is beyond the scope

of the Terry stop and therefore illegal unless the officer has a reasonable suspicion of a serious crime." United States v. Rusher, 966 F.2d

868, 876-77 (4th Cir. 1992). In determining whether reasonable

articulable suspicion was present, we review the totality of the circumstances in light of the officer’s experience. United States v.

Arvizu, 534 U.S. 266, 273 (2002); United States v. Sims, 296 F.3d

284, 287 (4th Cir. 2002). Yet the officer’s inferences must be objective and reasonable. United States v. Cortez, 449 U.S. 411, 418

(1981). 

In this case, the district court’s credibility findings regarding

Trooper Wade’s testimony considerably color the "reasonable articulable suspicion" inquiry. See United States v. Hill, 195 F.3d 258, 265-

67 (6th Cir. 1999) (noting that an officer’s credibility must be scrutinized particularly where a pretextual stop is at issue); see also United

States v. Akram, 165 F.3d 452, 457-60 (6th Cir. 1999) (Guy, J., dissenting) ("The courts have given the police this extraordinary power

to make pretextual stops and searches of vehicles, but it is also the

responsibility of the courts to make sure the testimony of police officers is given the same critical scrutiny given to a defendant’s testimony."); United States v. Johnson, 63 F.3d 242, 247 (3d Cir. 1995)

("[I]n evaluating the constitutionality of a traffic stop, a court is free

to examine . . . the officer’s credibility."); cf. Wong Sun v. United

States, 371 U.S. 471, 481-82 (1963) (stating that probable cause

determinations shall be made by a neutral magistrate to "insure that

the deliberate, impartial judgment of a judicial officer will be interposed between the citizen and the police, to assess the weight and

credibility of the information which the complaining officer adduces

as probable cause"). 

In Part II.D, the majority reverses the district court and holds that

reasonable suspicion existed to support Foreman’s continued detention for the purpose of conducting a dog sniff. On motions to suppress, we review factual findings under a clearly erroneous standard,

while reviewing legal conclusions de novo. Rusher, 966 F.2d at 873.

UNITED STATES v. FOREMAN 21
Significantly, in our review of motions to suppress, we review the

evidence in the light most favorable to the prevailing party below.

United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998). 

Accordingly, employing the appropriate standard of review, I turn

to Trooper Wade’s testimony and the factual circumstances that allegedly support reasonable suspicion. Based upon the facts as found by

the district court, including the district judge’s conclusions drawn

from viewing the videotape of the detention, and the district judge’s

doubts as to Trooper Wade’s credibility, I submit that the majority is

left with, at best, three undisputed potential indicia of reasonable suspicion, which — when viewed individually, or in combination — are

insufficient to establish reasonable suspicion: (1) Foreman’s trip from

a purported "source city"; (2) Foreman’s travels on southbound Route

13 in Virginia; and (3) the fact that Foreman had one or more air

fresheners hanging from his rearview mirror. 

II.

A.

In arguing that reasonable suspicion was present, the government

presents what it would like us to read as a litany of indicia in support.

Yet when those factors are properly weighed in light of the district

court’s findings of fact, we are left with scant and insufficient evidence of reasonable suspicion. These factual problems are borne out

upon review of Trooper Wade’s testimony during the suppression

hearing. As noted above, Trooper Wade’s detention and interrogation

of Foreman was captured on a videotape recorder from the police

cruiser. That tape and its audio track — which was inaudible — were

introduced as evidence at the suppression hearing. The district court

found that the tapes and other evidence refuted, or called into question, many of the government’s and Trooper Wade’s assertions. 

1.

First, during the suppression hearing, Trooper Wade testified that

the audio track was inaudible because the body microphone used to

record the interrogation must have failed because of a dead battery.

22 UNITED STATES v. FOREMAN
See J.A. 47-48. The district court, however, rejected Trooper Wade’s

explanation, noting that the tape was clearly audible when the stop

began, id. at 80, but the sound vanished when he started interrogating

Foreman. Id. at 84. In ruling from the bench, the district court explicitly relied on the absence of sound as evidence of inconsistency in

Trooper Wade’s testimony and the government’s case: 

I note that it’s the only segment on the tape where there is

no sound. There are other stops here . . . and if you run [the

tape] a little before and a little bit after [the Foreman detention], there is sound everywhere else on this tape, but there

is no sound on this particular stop. And furthermore, the testimony was that the battery went dead, but there is no indication of a battery going dead. 

Id. at 114 (emphasis added). 

2.

Second, as discussed above, the district judge flatly rejected

Trooper Wade’s testimony and the government’s contentions that

Foreman consented to the dog sniff. Supra at 17-19.

3.

Third, the district court rejected Trooper Wade’s testimony, J.A.

33, that Foreman’s lack of luggage in the car was one indication of

reasonable suspicion.7 The district court cast doubt on Trooper

Wade’s credibility, stating:

7Trooper Wade advanced this argument, although in the government’s

brief in response to Foreman’s Motion to Suppress the government did

not raise it as an indication of reasonable suspicion. Instead, the government’s brief pointed to only three indicia of suspicion, namely Foreman:

(1) was stopped "on Route 13, a known drug corridor"; (2) made a "very

brief trip to New York, a source city for drugs"; and (3) "avoided eye

contact" and "exhibited signs of extreme nervousness." J.A. 24 (Resp.

Mot. Suppress at 5). 

UNITED STATES v. FOREMAN 23
[W]e just saw a videotape. There is a huge white safe in the

back of this vehicle. . . . You never made mention of seeing

that early on. . . . And yet you say there is no luggage. Let’s

go on the videotape . . . . What my concern is, Officer

Wade, is you said there was no luggage. That was an indicia. You said there was no luggage, because you could see

into the vehicle. If you could see into the vehicle, I don’t

know how in the world you could have missed this big,

white safe.

Id. at 78-79. Upon further probing by the district judge, Wade admitted the safe "could have been a big metal trunk . . . . [t]hat could have

been luggage." Id. at 80. In ruling from the bench, the district court

memorialized this inconsistency as significant, id. at 113-14, and

stated that it, like "much of [the evidence in the case] is questionable

to the court." Id. at 115 (emphasis added). Contra ante at 3 ("[Trooper

Wade] did not see any luggage."). 

4.

Additionally, Trooper Wade testified that his suspicions were

raised in his initial approach to the vehicle by the "large fold of U.S.

currency, a large wad of bills, United States bills. . . . . [I]t appeared

to be a large amount of money laying on the center console." J.A. 32;

see also id. at 21 (Gov’t Response Mot. Suppress at 2) (stating that

Wade "saw a bundle of money in the center console"). During further

questioning of Trooper Wade regarding this purported "fold," "wad,"

or "bundle," he admitted "it was not a large amount of money." And

even after a leading question by the Assistant United States Attorney

— "Well it was a large number of bills and not a large amount of

money? — Wade admitted that it was "[s]everal bills, and less than

a hundred dollars." Id. at 33 (emphasis added). Thereafter, the district

judge questioned Trooper Wade regarding this allegedly suspicious

cash on the console and he stated that he thought the amount was $42

and "it was several bills folded up together." Id. at 35 (emphasis

added) (capitalization removed).8

8

"Several" is defined as "[b]eing of a number more than two or three

but not many" or "[a]n indefinite but small number; some or a few."

24 UNITED STATES v. FOREMAN
Despite the district court’s concerns regarding Trooper Wade’s

credibility, see, e.g., J.A. at 132 n.3 ("The court notes that there were

discrepancies in the factors proffered as reasonable suspicion which

led to questions of credibility."), and notwithstanding the district

court’s absence of findings on the matter, the majority accepts

Trooper Wade’s testimony regarding Foreman’s alleged nervousness

to support its finding of reasonable suspicion. The majority relies on

Trooper Wade’s supposed observations that Foreman’s pulse beat

through his shirt, his hands shook and the carotid artery on his neck

throbbed more noticeably than anyone Trooper Wade had stopped in

the past. Ante at 3 (citing J.A. 32 (Trooper Wade’s testimony)). Significantly, in addition to characterizing the government’s evidence as

"questionable," J.A. 115, the district judge, who had the opportunity

to review video of Foreman’s appearance and demeanor during the

stop, never credited Trooper Wade’s testimony on these matters. 

For example, nowhere did the district court accept Trooper Wade’s

testimony that when Foreman responded to the question of whether

he carried drugs in the vehicle he stated "no, no, no, not that I know

of." J.A. 35. To the contrary, in ruling from the bench, the district

court stated: "[Trooper Wade] asked Mr. Foreman something about,

again, did he know anything about the drugs, and [Foreman] said

[‘]no[’] . . . ." Id. at 110. Thus, although the government repeatedly

relies on this alleged "no, no, no" response to support its argument

that Foreman was suspicious because of nervousness, see, e.g., Br. of

Gov’t at 4; Reply Br. at 9, such an argument is not cognizable given

the district court’s factual findings. 

Furthermore, the majority concludes, based upon Trooper Wade’s

uncorroborated assertions, that Foreman evidenced nervousness

through heavy breathing, heavy sweating, and pulsating of the carotid

artery, ante at 12, although the district court could have explicitly

American Heritage Dictionary of the English Language (4th ed. 2000).

By contrast, the same text defines a "wad" as "[a] large amount," "[a] sizable roll of paper money," or "[a] considerable amount of money." Id.

Further, DEA Task Force Agent Charles Misuna’s affidavit regarding the

investigation attests that the amount recovered was $44. R. vol. 1, Misuna Aff. ¶ 6 (Oct. 21, 2003). 

UNITED STATES v. FOREMAN 25
detailed — and still could upon the remand that I submit must occur

— the presence of such facts, based on its multiple reviews of the

video tape, were they in existence. Yet by resolving such factual

inconsistencies against Foreman, the prevailing party, the majority

contravenes our standard of review, see Seidman, 156 F.3d at 547,

and undermines the district court’s well-founded doubts regarding

Trooper Wade’s testimony on even the most basic and objective facts

in this case. In so doing, the majority adopts the role of fact finder,

elevating Trooper Wade’s testimony to a level of trustworthiness

which the district court did not accord, and which, upon appellate

review, I believe it does not warrant. 

Indeed, even if the facts supported the majority’s conclusions, the

single case it cites regarding nervousness is unpersuasive. Ante at 14

(citing United States v. LeBrun, 261 F.3d 731, 734 (8th Cir. 2001)).9

The majority cites LeBrun for the proposition that reasonable suspicion may be evidenced by "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 . . . ." Ante at 14 (emphasis added). However, it is unclear

how LeBrun is applicable given the absence of analogous findings of

fact by the district court as well as the undisputed facts in the record.

9Further, the majority, like the government, seems unmindful of the

fact that courts must be skeptical in using nervousness as a factor to

determine reasonable suspicion. See, e.g., Delaware v. Prouse, 440 U.S.

648, 657 (1979) (stating that a traffic stop is an "unsettling show of

authority" that may "create substantial anxiety"); United States v. Gooding, 695 F.2d 78, 83-84 (4th Cir. 1982) (holding that defendant’s "distraught" and "nervous" demeanor as he deplaned did not amount to

reasonable suspicion); United States v. Perkins, 348 F.3d 965, 970 (11th

Cir. 2003) ("There is no reason why [the officer] should have reasonably

suspected that [the suspect’s] nervousness was tied to anything other than

the fact that he was being momentarily detained by an authority figure

with police power over him."); United States v. Santiago, 310 F.3d 336,

338-39, 342 (5th Cir. 2002) (holding that extreme nervousness, potentially inconsistent stories, and other suspicious answers did not amount

to a reasonable or articulable suspicion). 

26 UNITED STATES v. FOREMAN
In fact, after Trooper Wade’s testimony regarding Foreman’s

alleged throbbing neck and heavy sweat, the court asked: "How hot

was it that day? . . . . June 5, 2002, could have been pretty hot,

couldn’t it?" J.A. 32. In this question, the district court implied that

she believed these characteristics were attributable to a different scenario. Indeed, on June 5, 2002, Virginia was enveloped by a heat

wave. In Norfolk, the temperature reached a record high of 95 degrees

in the midst of a week where the temperatures remained in the 90s.

See Steve Stone, Temperature Peaks at Record-Tying 95 in Norfolk,

Va. Pilot & Ledger Star, June 6, 2002, at B7, available at 2002 WL

5497483; see also U.S. Dep’t of Commerce Oceanic & Atmospheric

Admin., Unedited Local Climatological Data, Hourly Observations

Table, Norfolk Int’l Airport, June, 2002 (detailing that in Norfolk at

6:51 a.m. on June 5, 2002, the temperature had already reached 76

degrees with a relative humidity of 74 percent). Thus, despite the fact

that the stop occurred at 7 a.m., I find the heat and the fact that Foreman had to sit in the car under the sun for more than ten minutes render Foreman’s sweat, if it existed, fairly insignificant, and the

majority’s reliance on LeBrun misplaced.10

It is unnecessary, however, to refute the government’s proposed

facts given the district court’s findings. Employing judicially noticeable facts, I demonstrate the flaw in Trooper Wade’s arguments

regarding Foreman’s sweat simply because I find it illustrative of

other problems the district court found with Trooper Wade’s testi10The majority characterizes my reliance on "extra-record weather

reports" as "advocacy," stating 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." Ante at 15. I have not, however, assumed an

advocate’s position. To the contrary, my reliance on the weather reports

buttresses, not my opinion, but the district judge’s observations as

detailed above. Accordingly, my iteration of these historical facts simply

gives deference to the district court’s findings and the record’s detail that

our law requires. Finally, the majority is not mindful of the fact that any

argument by Foreman regarding the causes of his sweat would have been

redundant, because it was during the first moments of the government’s

direct examination of Trooper Wade when the district judge interjected

to cast doubt upon Wade’s testimony that Foreman’s sweat was an indication of nervousness. Supra at 26 (citing J.A. 32). 

UNITED STATES v. FOREMAN 27
mony. As the district court repeatedly recognized, Trooper Wade’s

testimony — the heart of the government’s evidence at the suppression hearing — was laden with inconsistencies. Because the government’s contentions regarding Foreman’s alleged nervousness and

other physical attributes manifesting suspicion are contradicted rather

than supported by the district court’s findings of fact, and Foreman

was the prevailing party below, see Seidman, 156 F.3d at 547, I find

that the majority errs by accepting them as part of the totality of the

circumstances establishing reasonable suspicion. 

III.

A

Having demonstrated that the majority’s finding regarding nervousness cannot be supported in the record, I proceed to discuss the

outstanding factors which the majority concludes support reasonable

suspicion. Ante at 13-14. As noted above, the outstanding factors are

easily grouped into three considerations: (1) Foreman’s trip from a

purported "source city"; (2) Foreman’s travels on southbound Route

13 in Virginia; and (3) the fact that Foreman had one or more air

fresheners hanging from his rearview mirror. 

1.

I find the "source city" discussion fully unconvincing. We have

previously remarked that courts place too much weight on travel from

alleged "source cities." See United States v. Wilson, 953 F.2d 116,

125-26 (4th Cir. 1991) ("[T]he vast number of persons coming from

those ‘source cities’ relegates this factor to a relatively insignificant

role.") (citation omitted); see also Reid v. Georgia, 448 U.S. 438, 441

(1980) (holding that defendant’s arrival from "source city" was an

insufficient foundation for reasonable suspicion and stating the "circumstances describe a very large category of presumably innocent

travelers"); United States v. Beck, 140 F.3d 1129, 1138 n.3 (8th Cir.

1998) (detailing that a review of case law revealed that officers have

termed a significant number of the largest cities in the United States

as "drug source cities"); United States v. Andrews, 600 F.2d 563, 566-

67 (6th Cir. 1979) ("[O]ur experience with DEA agent testimony . . .

makes us wonder whether there exists any city in the country which

28 UNITED STATES v. FOREMAN
a DEA agent will not characterize as either a major narcotics distribution center or a city through which drug couriers pass on their way

to a major narcotics distribution center."). Indeed, the justification is

used so often by the government, that it becomes difficult to figure

out what urban area is not a "source city." See Akram, 165 F.3d at 459

n.4 (Guy, J., dissenting) ("Every urban area in the country is a source

city. This is entitled to little or no weight in my view, unless the person stopped just came from someplace like Medellin, Colombia.");

see also United States v. Townsend, 305 F.3d 537, 543-44 (6th Cir.

2002) (holding travel from Chicago, a "source city," to Columbus, a

"destination city," was not indicative of reasonable suspicion in case

where passengers were nervous, lacked vehicle registration and did

not know their destination address). The characterization of travels —

even "turnaround" travel11 — from New York City, a city with a massive populace and myriad cultural, commercial and historical wonders, as a "source city" trip is all the more slipshod given the legion

11The government argues that Foreman’s story of a same-day roundtrip between Norfolk and New York City to visit his evicted brother was

"of dubious plausibility." Reply Br. of Gov’t at 10. While the government is correct to cite the general proposition that "turn-around trips"

represent one of several factors that can combine to form reasonable suspicion, the government errs by decontextualizing the cases on which it

relies. For example, a one-day turn-around trip might be deemed "of

dubious plausibility" when paired with other factors. However, given

Foreman’s proffered explanation, it does not appear objectively strained

in this case. Here, Foreman purportedly journeyed to New York City to

assist his brother who had just been evicted from his home. Under these

circumstances, a trip lasting longer than a day might be surprising. I find

that Foreman’s explanation alone would not raise suspicion because if

Foreman’s brother had just lost his apartment, he would need to move

out quickly, and Foreman would lack a place to stay overnight. 

By contrast, the cases cited by the government regarding turn-around

trips all feature suspects who, unlike Foreman, proffered inconsistent stories concerning their travels, making the short stays seem of dubious

plausibility. See, e.g., McFarley, 991 F.2d at 1192 (noting that "over the

course of the voluntary questioning [the suspects] provided inconsistent

stories about details of their travel"); United States v. Mendez, 118 F.3d

1426, 1431 (10th Cir. 1997) (inconsistent and contradictory accounts of

the travels were at issue); United States v. Perez, 37 F.3d 510, 513 (9th

Cir. 1994) (same). 

UNITED STATES v. FOREMAN 29
of innocent travelers departing New York City. See United States v.

Letsinger, 93 F.3d 140, 147-48 (4th Cir. 1996) (Hall, J., dissenting)

(stating that New York "is also a ‘source city’ for bagels and stockbrokers" and "[m]illions of law-abiding and crime-fearing Americans

are from New York City"). 

2.

I find the government’s characterization of southbound Route 13 as

"a frequented corridor for illegal narcotics flowing from New York

and other points north" equally hollow as a basis for reasonable

articulable suspicion. First, the district court gave no indication that

it accepted Trooper Wade’s testimony on this issue, and the government presented no statistics or other objective evidence regarding

Route 13’s status as a "drug corridor." Moreover, even if the factor

was supportable, every southbound car that passed Trooper Wade on

that corridor was, by the government’s logic, suspicious. Such a broad

generalization does nothing to eliminate the overwhelming number of

innocent travelers on that corridor. See Reid, 448 U.S. at 441; United

States v. Boyce, 351 F.3d 1102, 1109 (11th Cir. 2003) (holding that

travel on a "known drug corridor" did not create reasonable suspicion

because the factor was one of several applicable "to a considerable

number of those traveling for perfectly legitimate purposes") (internal

quotation marks and citation omitted); United States v. Yousif, 308

F.3d 820, 828-29 (8th Cir. 2002) (rejecting "drug corridor" factor on

the basis that too many people fit such a description for it to justify

reasonable suspicion) (citation omitted). Furthermore, given the ubiquity of "source cities," it seems that every traveler on an interstate

road in the United States is likely headed in the direction of, or from,

a "source city" along that road, ostensibly placing them in a "drug

corridor." Finally, the government did not offer any objective evidence of Route 13’s status as a "drug corridor," rather the only evidence it presented was the "mere subjective impression[ ] of a

particular officer," United States v. Hernandez-Alvarado, 891 F.2d

1414, 1416 (9th Cir. 1989), whose credibility has been called into

question. 

30 UNITED STATES v. FOREMAN
3.

Lastly, the presence of an automobile air freshener is similarly

insignificant. See United States v. Ten Thousand Seven Hundred Dollars and No Cents in U.S. Currency, 258 F.3d 215, 228 n.9 (3d Cir.

2001) (rejecting government’s reliance on presence of air freshener in

vehicle as indication of narcotics nexus).12 The prevalence of these

12I find it doubtful as to whether the government may now properly

rely on this factor at all. As discussed above, in responding to the motion

to suppress, the government never mentioned this factor as one leading

to reasonable suspicion. Supra note 7. Instead, the government only proffered the air fresheners as a factor supporting the probable cause for the

pretextual stop. Only in its Motion for Reconsideration of the district

court’s suppression order did the government argue that the air

fresheners were a factor supporting reasonable suspicion. See J.A. 124.

Thus, the government’s ill-timed reliance on this factor is misplaced. See

Wilson, 953 F.2d at 124 (noting that we would not consider a factor on

appeal which had not been raised at the suppression hearing). 

While the majority attempts to distinguish my reliance on Wilson, ante

at 13 n.8, it overlooks the well-established principle that arguments

raised for the first time in a motion for reconsideration are generally

deemed waived. See Holland v. Big River Minerals Corp., 181 F.3d 597,

605 (4th Cir. 1999) (stating issue first presented in a motion pursuant to

Fed. R. Civ. P. 59(e) "is not preserved for appellate review unless the

district court exercises its discretion to excuse the party’s lack of timeliness and consider[s] the issue"); see also Mungo v. Taylor, 355 F.3d 969,

978 (7th Cir. 2004) ("Arguments raised for the first time in connection

with a motion for reconsideration, however, are generally deemed to be

waived.") (citation omitted); DiMarco-Zappa v. Cabanillas, 238 F.3d 25,

33 (1st Cir. 2001) ("To the extent that appellants’ reconsideration motion

sought to raise an argument waived at the trial stage, it must necessarily

fail."); Pittston Co. Ultramar Am. Ltd. v. Allianz Ins. Co., 124 F.3d 508,

n.12 (3d Cir. 1997) (declining to consider on appeal issue raised for the

first time in a post-judgment motion); CMM Cable Rep, Inc. v. Ocean

Coasts Props., Inc., 97 F.3d 1504, 1526 (1st Cir. 1996) (stating "there is

absolutely no merit" to the argument "that we should find [a party’s]

arguments preserved because they were advanced in its motion for reconsideration"); Manor Healthcare Corp. v. Guzzo, 894 F.2d 919, 922 n.4

(7th Cir. 1990) (stating "[r]aising an issue in a motion for reconsideration

does not save the issue for appeal") (citations omitted); Am. Meat Inst.

v. Pridgeon, 724 F.2d 45, 47 (6th Cir. 1984) (holding issue raised for

first time in motion for reconsideration constituted waiver); but see

Instone Travel Tech Marine & Offshore v. Int’l Shipping Partners, Inc.,

UNITED STATES v. FOREMAN 31
devices in American automobiles does little to eliminate innocent

travelers within the context of reasonable articulable suspicion. See

Sweet Scents Make Big Cents, Detroit News, Dec. 10, 2003, at 1G

(reporting that American consumers spend more than $330 million

annually on air fresheners for their automobiles and prices for such

items start at 50 cents). Furthermore, the government asserts that the

mere presence of an air freshener is an indicia of reasonable suspicion

— Trooper Wade’s testimony makes no reference to odor emanating

from Foreman’s vehicle — whereas courts that have accorded an air

freshener any weight in the reasonable suspicion calculus focus on its

trigger of the officer’s olfactory senses. See United States v. West, 219

F.3d 1171, 1178 (10th Cir. 2000) ("The Tenth Circuit has consistently

held that the scent of air freshener is properly considered as a factor

in the probable cause analysis.") (emphasis added) (citing cases);

United States v. Freeman, 209 F.3d 464, 469 (6th Cir. 2000) (Clay,

J., concurring) (referencing court’s past reliance on the "strong scent

of air freshener" emanating from a vehicle as a factor); United States

v. Pierce, 152 F.3d 808, 810 (8th Cir. 1998) (noting officer smelled

an odor of air freshener coming from inside a van).

B.

While, in the most forgiving light, the majority is left with three

factors, which we and other courts have sometimes recognized as

rightful considerations in forming reasonable suspicion, each of those

factors is relatively minor and often subject to qualification. Even if

the combination of the articulated factors were fully supported by the

record as it now stands, together they simply cannot "eliminate a substantial portion of innocent travelers," thus reasonable suspicion is

334 F.3d 423, 431 n.7 (5th Cir. 2003) ("This court has held that issue

raised for the first time in post judgment motions are preserved for

appeal.") (citations omitted). As the Seventh Circuit has recognized,

"[m]otions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence. Such

motions cannot in any case be employed as a vehicle to introduce new

evidence that could have been adduced during pendency of the [original]

motion." Publishers Res., Inc. v. Walker-Davis Publ’ns, Inc., 762 F.2d

557, 561 (7th Cir. 1985) (internal quotation marks and citation omitted).

32 UNITED STATES v. FOREMAN
lacking. United States v. Brugal, 209 F.3d 353, 361 (4th Cir. 2000)

(en banc) (plurality opinion). The factors together amount to little

more than a blanket generalization about the nature of certain crimes

that fails to provide the specificity which is the hallmark of the Fourth

Amendment. See Cortez, 449 U.S. at 418. Thus, I conclude that this

case should be remanded to the district court so that it may properly

examine the testimony, evidence and other fact-finding in which it

engaged to determine whether reasonable suspicion ever materialized.

IV.

For the reasons stated above, I find this record is insufficient for

the majority to make a finding of reasonable articulable suspicion.

Moreover, in light of the credibility concerns regarding Trooper Wade

and the district court’s statement that it found "much" of the government’s evidence "questionable," it is the district judge — who

watched the video of Trooper Wade’s detention of Foreman three or

four times, J.A. 113, and saw Trooper Wade testify in court — that

remains best situated to resolve the many doubts that remain. For

these reasons, I respectfully dissent. 

UNITED STATES v. FOREMAN 33