## In the



# United States Court of Appeals for the Fifth Circuit

_______________


### m 05-50683

______________



### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee,

VERSUS


### T OMMIE 

### D ARNELL 

### J ENSON 

### ,

Defendant-Appellant.



### _________________________ Appeal from the United States District Court fo r the Western District of Texas 

### m 04-CR-190-ALL

_________________________

Before S MITH and S TEWART , Circuit Judges, and C RANE , * District Judge.

J ERRY E. S MITH , Circuit Judge:
Tom mie Jenson appeals the denial of his
mo tion to suppress evidence as a vio lat io n of his Fourth Amendment rights under Terry v. Ohio , 392 U.S. 1 (1968). We reverse and remand for entry of a judgment of acquittal.

I. Sl ight ly before 11:00 p.m
. on June 4, 2004, DPS Trooper Eric Gray noticed a van traveling east on I-20 at 77 mph where the speed limit was 65 mph. He decided to stop it fo r speedin g, b ut after putting on his emergency light s Gray stat ed that i

t took between thi

rty seconds and a minut e fo r the van to com e to a * District Judge of the Southern District of Texas, sitting by designation. United States Court of Appeals Fifth Circuit 

## F I L E D August 23, 2006 Charles R. Fulbruge III Clerk2

com plete stop. 1 The of

ficer was driving wit h
a civilian passenger and ment io ned to her the suspicion th at the passengers in the van may have been trying to conceal som ething or corroborate stories.
When Gray approached the van, he noticed Jenson, wh o was th e driver, and a woman in the passenger seat and a man in the back seat, both of whom were asleep. Gray info rm ed Jenson he had been stopped for speeding and asked him to step to the rear of the van. Jenson com plied and proceeded to answer Gray ’s questions conc erning Jenson’s employment and the purpose of his trip. Jenson told Gray th at he worked in construction wit h his uncle Cotton and that they were traveling to Bryan-College Station to pick up his uncle’s wife.
Jenson and hi s passengers provided Gray wit h drivers’ licenses, and Gray ran the licenses to determ

ine whether they were val id and whether there were any outstanding warrants. At 11:02 Gray received word from dis p atch th at the l icenses were clear.
It is un certain when Gray gave Jenson the written warning, th ough it probably occu r red before Gray asked Jenson’s permission to search his vehicle. Gray stated he was “probably clo se to finishing” the warning at the time he heard fro m dispatch. He could not recall when he returned the license, th ough he noted it was his usual practice to return it at the same time he issued the warning. Though Jenson was calm an d cooperative at the t ime o f t he init ial st op, he became excessively tal

kative, answering question s that he
was not asked, which Gray surmised to mean he was nervous. Jenson continued to exhibit this behavior even aft er being issued the warning, which Gray fo und odd because in his experience , a driver normally becomes less agitated when he realizes he is not receiving a cit ation.
At 11:04 (two minut es aft e r Jenson’s license cleared), Gray again asked Jenson where he worked, and he replied “Tommie and Cotton ,” or “Tommie-Cotton,” presumably referring t o his construction business with his uncle. Gray then asked Cotton where he worked, and he replied th at he was self-employed and th at his business did not have a name. Gray fo und the discrepancy between the two answers suspicious. 2 Gray then asked fo r Jenson’s permission to search the van, which was granted. There is
no indication th at Gray , before requesting permissio n, told Jenson h e was free to leave. Gray t hen told Jenson that he would need to conduct a pat-down search before he could search the vehicle. Gray lat er testified t hat it
was standard procedure to frisk occupants of
a car before proceeding with a search, to ensure the of

ficer’s safety while he was otherwise occupied.
Jen son suddenly became upset and complained of harassment . He started em ptying his pockets, at which point Gray unho lstered his weapon and told Jenson to put his hands 1 The videotape introduced by the gov er nment starts in the middle of the traffic stop, but it reveals that Jenson took at least thirty seconds to move to the side of the road and come to a com plete stop. For the duration, Jen s on was driving in the rightmost lane with his signal on and very little traffic on the road. 2 Although the government’s brief implies that this exchange occurred before Gray checked the lic enses, counsel for the government conceded at oral argument that it occurred afterward.3

behind his back. Gray conducted the frisk and fo und a pocketknife and a small “t wo-shooter” gun on Jenson’s person. Gray put Jenson in his patrol car and ran a criminal background check, which revealed th at J enson was a convicted felon. Jenson was brought to jail, where another of ficer found a bag of marihuana in his sock.
Jenson filed, and the court denied, a mo tion to suppress evidence fo r violation of the Fourth Amendment

. He was convicted of one count of being a felo n in possession of a fir earm and one count of being an unlawful user of a controlled substance in possess i on of a fir earm.
II. When rev iewing the denial of a motion to suppress, we review findings of f act f or clear error and conclusions of law de novo
. O rnelas
v. United States , 517 U.S. 690, 699 (1996). We construe all facts in the light mo st favorable to the government as the prevailing party

. See United States v. Santiago , 310 F.3d 336, 340 (5th Cir. 2002). We anal yze the validity of traf fic stops under Terry , 392 U.S. at 21, which held th at “limit ed searches and seizures
are not unreasonable when th ere i s a reasonable and articulable suspicion th at a person has
com mit ted a crime.” Santiago , 310 F.3d at 340. We employ a two-part test to determine whether there was “reasonable suspicion”: “whether the of

ficer’s action was justified at it s inception, and

. . . whether the of ficer’s subsequent actions were reasonably related in scope to the circumstances th at justifie d the stop.” U nited States v. Brigham , 382 F.3d 500, 506 (5th Cir. 2004) (en banc) (citing Terry , 392 U.S. at 19-20).
Jenson concedes th at his speeding justified the traf fic stop at it s inception. Therefore, the
s ol e i ssue on appeal is whether the officer’s subsequent actions, including his request to search the vehicle and his pat-down search of Jenson’s person, were reasonably related to the circumstances justifying the stop.
Several of Gray ’s actions are plainly permissible under our caselaw. An officer may ask fo r a driver’s license and registration of the occupants and may run a com puter check on both. See id. at 509. He also may ask the occupants about their int ended destination. See id. at 510. “[ W]e rej ect any notion that a police officer’s questioning, even on a subject unrelated to the purpose of the stop, is i tsel f a Fourth Amendment vio l ati on . . . . [D]etention, not questioning, is the evil at which Terry ’s second prong is aimed.” United States v. Shabazz , 993 F.2d 431, 436 (5th Cir. 1993). We must also be careful, when conducting a T erry analysis, to allo w “o fficers to draw on th eir
own e xperience and specialized training to make inferences from and deductions about the cumulative info rm ation available to them th at might well elude an untrained person.” Brigham , 382 F.3d at 507 (quo ti ng U nited States v. A rvizu , 534 U.S. 266, 273 (2002)) (int ernal quotations omitted).
Detention, ho w ever, may last no lo nger th an required to effect the purpose of the stop. See United States v. Lopez-Moreno , 420 F.3d 420, 430 (5th Cir. 2005) (quoting B righam , 382 F.3d at 507). If all computer checks come back clean, then as a general mat ter reasonable suspicion disappears, and there is no legit imat e reason for extending the stop. See id. at 431. “A recognized e xception to thi s rule is that if additional reasonable suspicio n arises in the
course of the stop and before the init ial pur-4

pose of the stop has been fulfilled, then the de t ention may continue until the new reasonable suspicion has been dis pelled or confir med.” I d. The government offers three reas ons why there was reasonable suspicion to extend Jenson’s traf

fic stop beyo nd 11:02 (the time the licen ses cleared): (1) It took an unusually lo ng time fo r Jenson’s van to pull over, (2) Jenson’s excessive talkativeness indicated nervousness, and (3) Jenson and Cotton appeared to give inconsistent answers.
We decline to consider Jenson’s and Cotton ’s contradictory answers, because the alleged inco nsist ency did not arise until 11:04 and therefore not “befo re the init ial purpose of the stop [had] been fulfilled.” L opez-Moreno , 420 F.3d at 431. Even if we did consider the conflicting statem

ents, it would be unreasonable to become suspicious based on the statement s made.
When asked about his employment , Jenson replied th at he worked f

or hi s uncle in construction and th at the name of the business was “Tommie-Cotton” or “ Tom mie and Cotton,” presumably com

bining his and his uncle’s
names. Cotton, in t urn, answered that he was “self-employed,” which i s not by itself inconsistent wit h havin g a nephew as an employee. 3 He also stated t hat his business did not have a name, but Jenson may have merely given a descriptive ti

tle fo r the two-man operation, inst ead of a fo rmal name, when pressed. Gray easily could have dispelled his suspicions by asking a fo llo w-up qu estion such as “Do yo u work wit h yo ur nephew?,” but there is no evidence that he did so. 4
Therefore, the specific issue of fir st impressio n is whether taking an unusual amo unt of time to pull over, coupled wit h nervous behavio r by the driver, amo unts to reasonable suspicio n to justify prolonged detention. We have previously fo und de tentions unreasonable, based on the total

it y of the circumstances, where the driver exhibit ed s igns of nervousness. 5 It may be that Jenson’s signs of nervousness were m

ore probative when coupled wit h the de lay in pulling over. We accord great respect to Gray ’s testimo ny, as a trained law enforcement of

ficer, that it was unusual fo r the van not to brake when th e pol ice car activated its emergency light s and th at i t took
an above-average time fo r Jenson to pull over.
This mo dest delay in stopping time does not by it self, however, give ri se to reason a ble suspicion. It may t ake drivers different
amo unts of time, especially at night , to identify t h e light s of the car behind them as com ing from a pol

ice car and not from another emergency services vehicle. It may also take
som e time fo r the driver to recognize that the of ficer int ends for him to stop and safely turn onto the shoulder, as opposed to, fo r example, taking the next exit so as to be out of the danger of traffic.

3 “ Self-employed” is defined as “earning income directly from one’s own business, trade, or profession rather than as a specified salary or wages from an employer.” WE BSTER ’ S T HIRD N EW I NTERNA

TIONAL D ICTIONARY 2060 (1986). 4 See Florida v. Royer , 460 U.S. 491, 500 (1983) (explaining that an officer should use “the least intrusive mea ns re asonably available to verify
or dispel the officer’s suspicion in a short period of time”).

5 See Santiago , 310 F.3d at 338 (in which th e driver exhibited “extreme nervousness,” including shaking hands); Dortch , 199 F.3d at 199-200 (in which the driver appeared nervou s an d “gazed
around as if he was looking for a place to run”) (internal quotations omitted).5

We do not mean to say th at excessive delay in stopping may never give ri se to reasonable suspicion; there may be cases, fo r example, in which further context, such as erratic driving,
a cceleration, or passenger movement inside the vehicle further su ggest criminal behavio r. Here, however, thirty seconds to a minut e was a reasonable amount of time fo r Jenson to respond to the flashing of the emergency light s.
Also , the facts of this case are relatively weak by com

parison t o th e facts in our relevant precedents. For example, in Jones there was no reasonable suspicion to search the vehicle even th ough one of the occupants had a previous arrest on a crack cocaine charge. S ee 234 F.3d at 242. 6 Likewise, in Santiago we fo und a search u nreasonable even though the defendant lied to the of

ficer about the identity of a passenger. See 310 F.3d at 338-39.
More impo rtantl

y, the government does not present adequate evidence of a nexus between Jenson’s allegedly suspicious behavior and any specific criminal activit y. Gray said that while pu lling over the vehicle, he thought the passengers might be trying to c onceal something or get their explanations straight before stopping. He testified t hat the three suspicious factors he identified were evidence th at “something may be going on in the van th at w a s illegal th at they possibly didn’t want me to see.” When Jenso n became visibly agitated aft er Gray told him he was about to conduct a p at-down search, Gray testified that he th ought he had “identified a criminal act.” At 11:18, aft er Gray had searched the vehicle, he told his civilian passenger th at when yo u feel
something is illegal, you know it. These general statements do not amo unt to an “ articulable suspicion th at a person has com mit ted or is about to com

mit a crime,” as opposed to a
mere hunch. Royer , 460 U.S. at 498 (emphasis added).

In contrast, we have fo und a search reasonable where the of

ficer specifically susp ected drug traf ficking because the defendant was traveling on a known drug corridor (also I-20), had been arrested fo r traf ficking in t he past, did not have a driver’s license, and was 500 miles away from the road leading to his alleged destination. S ee United States v. Reyes Gonzalez , 328 F.3d 755, 758 (5th Cir. 2003). In Santiago , we found a search unreasonable
even th ough the o fficer testified that he th ought the car might contain narcotics, because the fact th at the l

icenses cleared should have dispelled any suspicion of drug trafficking. S ee Santiago , 310 F.3d at 339, 342; accord Dortch , 199 F.3d at 199 (no reasonable or articulable suspicion of drug trafficking). Likewise, the of

ficer here has not articulat ed any particular connection between the allegedly suspicious behavior and drug or weapons possession, beyo nd the fact th at the driver’s hesitation in pulling over may have been the product of int ent to conceal

. In short, the government has not shown reasonable suspicion to prolong Jenson’s traffic stop. 7

6 See also Dortch , 199 F.3d at 196, 199 (finding that defendant’s criminal record did n ot give rise to reasonable suspicion). 7 Nor does it affect our analysis that only four minute s elapsed between the ID clearance and Jenson’s consent to the search. The government argues that the officer’s actions were a natural progress ion and a reasonable extension of the initial stop. In Dortch , h owever, we found a T erry violation even though it took “five minutes or less” between the ID clearance and the arrival of a K-9 unit to search defendant’s car. D ortch , 199 F.3d at (continued...)6 III. The government contends that, even if the of ficer unreasonably extended the traffic stop beyo nd the point at which the van’s occupants’ ID’s were cleared, Jenson’s consent to search cured any Fourth Amendment problem. “Consent to search may , but does not necessarily, dissipate the taint of a fo urth ame ndment vio lat io n.” U

n ited States v. Chavez-Villarreal , 3 F.3d 124, 127 (5th Cir. 1993). 8 To determ ine whether consent was validly given,
we ask (1) whether consent was voluntary and (2) w hether it was an independent act of free will. See Santiago , 310 F.3d at 342 (citing Chavez-Villarreal , 3 F.3d at 127).
We use a mult i- factor test to d eterm ine whether cons ent was vol untary , in which we consider (1) the voluntariness of the def endant’s custodi al status; (2) the presence of coercive pol ice procedures; (3) the extent and level of the d efendant’s cooperation with the pol ice; (4) the defendant’s awareness of his right to refuse consent; (5) the defendant’s education and intelligence; and (6) the defendant’s b elief that no incriminating evidence will be found. Jones , 234 F.3d at 242 (citing Shabazz , 993 F.2d at 438). The government bears the burden of pr oving that consent was voluntary. See id. We review a finding of vol untariness fo r clear error. S ee Shabazz , 993 F.2d at 438.

T he district court f

ound that consent was vol u nt ary because Gray did not request consent until aft er the stop was com pleted and the warning issued, and Jenson was at all times cooperative and seemed to understand and be able to com

municate wit h the trooper . The court noted, however, th at Jenson would have been aware of th e incriminat ing evidence on his person, th ough none was fo und in the vehicle. 9 Because the question is close, we conclude the court did not commit clear error.
Even assuming, however, th at the court correctl y concluded th at con sent was voluntary , it com

mit te d error b y no t appl

ying t he second prong of the test: whether consent was an independent act of free will. 10 The purpose

7 (...continued) 203 (Garwood, J., dissenting). It is not the duration of time, but the quantity of evidence, that determines whether re asonable suspicion survives the officer’s background check. In this case, there was i nsufficient re ason for suspicion to continue once Jenson’s ID cleared; a constitution al violation occurred the moment the detention continued past that point.

8 See also Brigham , 382 F.3d at 508 (stating that “a consensual interrogation ma y follow the end of a valid traffic stop”). 9 Also, as previously noted, the government did not present evidence that Jenson’s license had been
returned to him before consent was requested and did not prove that Jenson had been informed he was free to go. Given the burden of proof, we draw an adverse inference against the government on these facts. See Santiago , 310 F.3d at 343 n.4.

10 See Jones , 234 F.3d at 243 (opining that even assuming that consent was voluntary, “it is clear that the government failed to prove that the consent w as an independent act of free will and that th e district court erred by not considering the s econd prong of the consent inquiry, which is required when a constitution al violation has preceded the consent” ); D ortch , 199 F.3d at 202 (“[E]ven if [defendant’s] consent was volunta rily given, and the district court’s determination therefore was not clearly erroneous, the consent was not valid. (continued...)7

of this inquiry i s to determ ine whether there was a “break in the causal chain” between the constitutional vio lat io n and the consent; th at is to say, consent cannot be the product of the illeg al detention. S ee Santiago , 310 F.3d at 343.
To determ

ine whether consent was independent, we consider “1) the tem poral proximit y of the illegal conduct and the consent; 2) the presence of int e rvening circumstances; and 3) the purpose and flagrancy of the initial misco nduct.” J

ones , 234 F.3d at 243. Though the init ial o fficer misconduct was not flagrant, the fir st two factors c u t decidedly against the government.
The consent f

ollo wed closely on the heels of the illegal detention, and there is no evidence th at (a) Jenson knew he was free to leave or (b) that his license had been returned to him, both of which might be viewed as intervening circumstances. 11 In J ones we fo und the causal chain had not been broken where t he of ficers “appeared to knowingly prolon g the detention” by purposely failing to return one of the passenger’s ID’s. Id. We give the
same legal effect today to the fail ure of the government to meet it s burden of proving th at Jenson’s consent was independently given. We note also th at th e evidence was ultimat ely discovered on Jenson’s person, pursuant to a pat-down search, not in the vehicle th at Jenson gave Gray perm ission to inspect. It is wit hout question th at Jenson did not consent to the pat-down search, but limit ed pat-down searches are permissible “ f or the protection of the pol

ice of ficer, where he has
reason to bel

ieve that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual fo r a crime.” T erry , 392 U.S. at 27. 12

There is no Terry vio lat io n “if the searching of ficer can point to s pecific and articulable facts suggesting actual physical ri sk to himself
or others.” Sink , 586 F.2d at 1048. When Gray info rm

ed Jenson he would conduct a patdown s e arch, Jenson became upset, com
plained of harassment, and began emptying his pockets. Alt hough we do not question Gray’s decision to conduct a frisk in response to such
nervous behavior, th e suspicious conduct occurred only after r easonable suspicion to continue the detention had been dispelled and Gray had obtained invo lunt ary c onsent to search the vehicle.
Under th e f

ruit of the poi sonous tree doctrine, “all evidence derived from the
. . . illegal search

. . . must be suppressed, unless the government shows th at there was a break in t he chain of events sufficient to ref ute the inference th at the evidence was a product of the constitutional vio lat io n.” D ortch , 199 F.3d at 200-01. The pol

ice would not have discovered either Jenson’s gun or marihuana but for the search of his person, and the pol ice would not have searched his person had they not il10 (...continued) Instead, because the caus al chain between the illegal detention and Dortch’s consent to a thir d body search was not broken, the search was nonconsensual.”).

11 B ut see Dortch , 199 F.3d at 196, 198 (deciding that statement that defendant was free to leave was ineffectual where police detained vehicle and license, and defendant driver “cou ld not
re asonably be expected to wander off down the highway in an unfamiliar area”). 12 See also United States v. Sink , 586 F.2d 1041, 1047-48 (5th Cir. 1978).8

legally extended the stop beyo nd the time when reasonable suspicio n expired. Therefore, the evidence is fruit of the poi sonous tree and must be suppressed. 13

IV. The government cit es Brigham to support it s argument, but on clo se inspection it does not appl y t o these facts. There we found that the pol ice had reasonable suspicion to search defendant’s vehicle where the defendant driver (1) was not the lessee of the vehicle, (2) the lesse e of th e vehicle was not in the car, and (3) the driver’s and passenger’s versions of their it inerary differed. Brigham , 382 F.3d at 508. It was critical to the holding in B righam th at on e of the car’s occupants had provided the pol ice wit h a fict it io us ID and ther efore,had not been cleared by the officers’ computerized search when consent was given. S ee id. at 510. We noted that cases such as D ortch and J ones “are about timing and sequence: Aft er the com

puter checks cam

e up ‘clean,’ there remained no reasonable suspicion of
w rongdoing by the vehicle’s occupants.” Id. at 510.

In Brigham , because the pol ice obtained consent to search defendant’s vehicle while the background check was pending, the detention continued to be justified by the facts th at gave ri se to it s inception, so no Fourth Amendment vio lat io n occurred. S ee id

. a t 509 (quoting Shabazz , 993 F.2d at 437). A fortiori , because there was no Terr y violation, there was no need to inquire whether consent was constitutionally taint ed. S ee id. at 512. Here, however, the request to search occurred after defendant’s license cleared, and as inst ructed by Dortch , Jones , and Santiago , there was no reasonable suspicion to justify prolonging the search, nor was the consent given independently of the illegal detention. 14

The conviction is REVERSED, and thi s mat ter is REMANDED fo r entry of a judgment of acquittal.

13 Jenson’s initial motion to suppress was inartful: He listed only the weapon, not the marihuana,
as the evidence he sought to exclude from trial. The fruit of the poisonous tree doctrine, however,
requires us to suppress all evidence acquired as the
re sult of an illegal search, and the government does not argue that Jenson ha s waived his right to
request suppression of the drugs. 14 Some language in Brigham suggests that it does not ma tter in what sequence the police ask for consent to search the ve hicle and conduct the background ID search. S ee Brigham , 382 F.3d at 511 (“There is . . . no constitutional stopwatch on traffic stops.”); id. (stating that ID searches “need not be pursued to the exclusion of, or in particular sequence with, other efficient mea ns.”). As quoted above, however, we put particular emphasis on the fact that defendants’ ID’s had not yet cleared, and
we explicitly stated that the government had not asked the en banc court to reconsider D ortch , Jones , or Santiago

. S ee id. at 510 n.10. The best understanding of Brigham is to treat as decisive the fact that, in that case, one passenger presented the police with a fake license, which (a) heightened suspicion about the passenger’ s activities and (b) necessarily extended the time required to identify and clear the vehicle’s occupants.