In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 05-50683

______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

TOMMIE DARNELL JENSON,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

m 04-CR-190-ALL

_________________________

Before SMITH and STEWART, Circuit Judges,

and CRANE,

* District Judge.

JERRY E. SMITH, Circuit Judge:

Tommie Jenson appeals the denial of his

motion to suppress evidence as a violation 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.

Slightly 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 for

speeding, but after putting on his emergency

lights Gray stated that it took between thirty

* seconds and a minute for the van to come 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

Clerk
2

complete stop.1 The officer was driving with

a civilian passenger and mentioned to her the

suspicion that the passengers in the van may

have been trying to conceal something or corroborate stories. 

When Gray approached the van, he noticed

Jenson, who was the driver, and a woman in

the passenger seat and a man in the back seat,

both of whom were asleep. Gray informed

Jenson he had been stopped for speeding and

asked him to step to the rear of the van. Jenson complied and proceeded to answer Gray’s

questions concerning Jenson’s employment

and the purpose of his trip. Jenson told Gray

that he worked in construction with his uncle

Cotton and that they were traveling to Bryan-College Station to pick up his uncle’s wife.

Jenson and his passengers provided Gray

with drivers’ licenses, and Gray ran the licenses to determine whether they were valid and

whether there were any outstanding warrants.

At 11:02 Gray received word from dispatch

that the licenses were clear. 

It is uncertain when Gray gave Jenson the

written warning, though it probably occurred

before Gray asked Jenson’s permission to

search his vehicle. Gray stated he was “probably close to finishing” the warning at the time

he heard from dispatch. He could not recall

when he returned the license, though he noted

it was his usual practice to return it at the same

time he issued the warning.

Though Jenson was calm and cooperative

at the time of the initial stop, he became excessivelytalkative, answering questions that he

was not asked, which Gray surmised to mean

he was nervous. Jenson continued to exhibit

this behavior even after being issued the

warning, which Gray found odd because in his

experience, a driver normally becomes less

agitated when he realizes he is not receiving a

citation. 

At 11:04 (two minutes after Jenson’s license cleared), Grayagain asked Jensonwhere

he worked, and he replied “Tommie and Cotton,” or “Tommie-Cotton,” presumably referring to his construction business with his uncle. Gray then asked Cotton where he

worked, and he replied that he was self-employed and that his business did not have a

name. Gray found the discrepancy between

the two answers suspicious.2

Gray then asked for Jenson’s permission to

search the van, which was granted. There is

no indication that Gray, before requesting permission, told Jenson he was free to leave.

Gray then told Jenson that he would need to

conduct a pat-down search before he could

search the vehicle. Gray later testified that it

was standard procedure to frisk occupants of

a car before proceeding with a search, to ensure the officer’s safety while he was otherwise occupied. 

Jenson suddenly became upset and complained of harassment. He started emptying

his pockets, at which point Gray unholstered

1 his weapon and told Jenson to put his hands The videotape introduced by the government

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 complete stop.

For the duration, Jenson 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

licenses, counsel for the government conceded at

oral argument that it occurred afterward.
3

behind his back.

Gray conducted the frisk and found a pocketknife and a small “two-shooter” gun on Jenson’s person. Gray put Jenson in his patrol car

and ran a criminal background check, which

revealed that Jenson was a convicted felon.

Jenson was brought to jail, where another

officer found a bag of marihuana in his sock.

Jenson filed, and the court denied, a motion

to suppress evidence for violation of the

Fourth Amendment. He was convicted of one

count of being a felon in possession of a firearm and one count of being an unlawful user

of a controlled substance in possession of a

firearm.

II.

When reviewing the denial of a motion to

suppress, we review findings of fact for clear

error and conclusions oflaw de novo. Ornelas

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

We construe all facts in the light most favorable to the government asthe prevailing party.

See United States v. Santiago, 310 F.3d 336,

340 (5th Cir. 2002). We analyze the validity

of traffic stops under Terry, 392 U.S. at 21,

which held that “limited searches and seizures

are not unreasonable when there is a reasonable and articulable suspicion that a person has

committed a crime.” Santiago, 310 F.3d at

340. We employ a two-part test to determine

whether there was “reasonable suspicion”:

“whetherthe officer’s actionwasjustified at its

inception, and . . . whether the officer’s

subsequent actions were reasonably related in

scope to the circumstances that justified the

stop.” United States v. Brigham, 382 F.3d

500, 506 (5th Cir. 2004) (en banc) (citing

Terry, 392 U.S. at 19-20). 

Jenson concedes that his speeding justified

the traffic stop at its inception. Therefore, the

sole issue 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 for a driver’slicense and registration ofthe

occupants and may run a computer check on

both. See id. at 509. He also may ask the

occupants about their intended destination.

See id. at 510.

“[W]e reject any notion that a police officer’s questioning, even on a subject unrelated

to the purpose of the stop, is itself a Fourth

Amendment violation . . . . [D]etention, not

questioning, isthe evil at which Terry’ssecond

prong is aimed.” United States v. Shabazz,

993 F.2d 431, 436 (5th Cir. 1993). We must

also be careful, when conducting a Terry

analysis, to allow “officers to draw on their

own experience and specialized training to

make inferences from and deductions about

the cumulative information available to them

that might well elude an untrained person.”

Brigham, 382 F.3d at 507 (quoting United

States v. Arvizu, 534 U.S. 266, 273 (2002))

(internal quotations omitted).

Detention, however, may last no longer

than required to effect the purpose of the stop.

See United States v. Lopez-Moreno, 420 F.3d

420, 430 (5th Cir. 2005) (quoting Brigham,

382 F.3d at 507). If all computer checks come

back clean, then as a generalmatter reasonable

suspicion disappears, and there is no legitimate

reason for extending the stop. See id. at 431.

“A recognized exception to this rule is that if

additional reasonable suspicion arises in the

course of the stop and before the initial pur-
4

pose of the stop has been fulfilled, then the

detention may continue until the new reasonable suspicion has been dispelled or confirmed.” Id. The government offers three reasons why there was reasonable suspicion to

extend Jenson’straffic stop beyond 11:02 (the

time the licenses cleared): (1) It took an unusually long time for 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 inconsistency did not arise until 11:04

and therefore not “before the initial purpose of

the stop [had] been fulfilled.” Lopez-Moreno,

420 F.3d at 431. Even if we did consider the

conflicting statements, it would be unreasonable to become suspicious based on the statements made. 

When asked about his employment, Jenson

replied that he worked for his uncle in construction and that the name ofthe business was

“Tommie-Cotton” or “Tommie and Cotton,”

presumably combining his and his uncle’s

names. Cotton, in turn, answered that he was

“self-employed,” which is not by itself inconsistent with having a nephew as an employee.3 He also stated that his business did

not have a name, but Jenson may have merely

given a descriptive title for the two-man operation, instead of a formal name, when pressed.

Gray easily could have dispelled hissuspicions

by asking a follow-up question such as “Do

you work with your nephew?,” but there is no

evidence that he did so.4

Therefore, the specific issue offirst impression is whether taking an unusual amount of

time to pull over, coupled with nervous behavior by the driver, amountsto reasonable suspicion to justify prolonged detention. We have

previously found detentions unreasonable,

based on the totality of the circumstances,

where the driver exhibited signs of nervousness.5

It may be that Jenson’s signs of nervousness were more probative when coupled

with the delay in pulling over. We accord

great respect to Gray’s testimony, as a trained

law enforcement officer, that it was unusual

for the van not to brake when the police car

activated its emergency lights and that it took

an above-average time for Jenson to pull over.

Thismodest delayin stopping time does not

by itself, however, give rise to reasonable

suspicion. It may take drivers different

amounts oftime, especially at night, to identify

the lights of the car behind them as coming

from a police car and not from another

emergency services vehicle. It may also take

some time for the driver to recognize that the

officer intends for him to stop and safely turn

onto the shoulder, as opposed to, for 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.” WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 2060 (1986).

4

See Florida v. Royer, 460 U.S. 491, 500

(1983) (explaining that an officer should use “the

least intrusivemeansreasonably 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 the

driver exhibited “extreme nervousness,” including

shaking hands); Dortch, 199 F.3d at 199-200 (in

which the driver appeared nervous and “gazed

around as if he was looking for a place to run”)

(internal quotations omitted).
5

We do not mean to say that excessive delay

in stopping may never give rise to reasonable

suspicion; there may be cases, for example, in

which further context, such as erratic driving,

acceleration, or passenger movement inside

the vehicle further suggest criminal behavior.

Here, however, thirty secondsto a minute was

a reasonable amount of time for Jenson to respond to the flashing of the emergency lights.

Also, the facts of this case are relatively

weak by comparison to the facts in our relevant precedents. For example, in Jones there

was no reasonable suspicion to search the vehicle even though one of the occupants had a

previous arrest on a crack cocaine charge. See

234 F.3d at 242.6 Likewise, in Santiago we

found a search unreasonable even though the

defendant lied to the officer about the identity

of a passenger. See 310 F.3d at 338-39. 

More importantly, the government does not

present adequate evidence of a nexus between

Jenson’s allegedlysuspicious behavior and any

specific criminal activity. Gray said that while

pulling over the vehicle, he thought the

passengers might be trying to conceal something or get their explanations straight before

stopping. He testified that the three suspicious

factors he identified were evidence that “something may be going on in the van that was

illegal that they possibly didn’t want me to

see.” When Jenson became visibly agitated

after Gray told him he was about to conduct a

pat-down search, Gray testified that he

thought he had “identified a criminal act.” At

11:18, after Gray had searched the vehicle, he

told his civilian passenger that when you feel

something is illegal, you know it. These general statements do not amount to an “articulable suspicion that a person has committed or

is about to commit a crime,” as opposed to a

mere hunch. Royer, 460 U.S. at 498 (emphasis added). 

In contrast, we have found a search reasonable where the officer specifically suspected

drug trafficking because the defendant was

traveling on a known drug corridor (also I-20),

had been arrested for trafficking in the past,

did not have a driver’s license, and was 500

miles away fromthe road leading to his alleged

destination. See United States v. Reyes

Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003).

In Santiago, we found a search unreasonable

even though the officer testified that he

thought the car might contain narcotics, because the fact that the licenses cleared should

have dispelled any suspicion of drug trafficking. See Santiago, 310 F.3d at 339, 342; accord Dortch, 199 F.3d at 199 (no reasonable

or articulable suspicion of drug trafficking). 

Likewise, the officer here has not articulated any particular connection between the allegedly suspicious behavior and drug or weapons possession, beyond the fact that the driver’s hesitation in pulling over may have been

the product of intent 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 not give

rise to reasonable suspicion). 

7 Nor does it affect our analysis that only four

minutes elapsed between the ID clearance and

Jenson’s consent to the search. The government

arguesthat the officer’s actions were a natural progression and a reasonable extension of the initial

stop. In Dortch, however, we found a Terry

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. Dortch, 199 F.3d at

(continued...)
6

III.

The government contends that, even if the

officer unreasonably extended the traffic stop

beyond the point at which the van’s occupants’

ID’s were cleared, Jenson’s consent to search

cured anyFourthAmendment problem. “Consent to search may, but does not necessarily,

dissipate the taint of a fourth amendment

violation.” United States v. Chavez-Villarreal,

3 F.3d 124, 127 (5th Cir. 1993).8 To

determine whether consent was validly given,

we ask (1) whether consent was voluntary and

(2) whether 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 multi-factor test to determine

whether consent was voluntary, in which we

consider

(1) the voluntariness of the defendant’s

custodial status; (2) the presence of coercive police procedures; (3) the extent and

level of the defendant’s cooperation with

the police;(4) the defendant’s awareness of

his right to refuse consent; (5) the defendant’s education and intelligence; and

(6) the defendant’s belief 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 proving that consent was voluntary.

See id. We review a finding of voluntariness

for clear error. See Shabazz, 993 F.2d at 438.

The district court found that consent was

voluntary because Gray did not request consent until after the stop was completed and the

warning issued, and Jenson was at all times

cooperative and seemed to understand and be

able to communicate with the trooper. The

court noted, however, that Jenson would have

been aware of the incriminating evidence on

his person, though none was found in the vehicle.9 Because the question is close, we conclude the court did not commit clear error.

Even assuming, however, that the court

correctly concluded that consent was voluntary, it committed error by not applying the

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 whetherreasonable suspicion survivesthe

officer’s background check. In this case, there was

insufficient reason for suspicion to continue once

Jenson’s ID cleared; a constitutional violation

occurred the moment the detention continued past

that point.

8

See also Brigham, 382 F.3d at 508 (stating

that “a consensualinterrogationmay 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 thatJenson had been informed hewas

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

was an independent act of free will and that the

district court erred by not considering the second

prong of the consent inquiry, which is required

when a constitutional violation has preceded the

consent”); Dortch, 199 F.3d at 202 (“[E]ven if

[defendant’s] consent was voluntarily given, and

the district court’s determination therefore was not

clearly erroneous, the consent was not valid.

(continued...)
7

of this inquiry is to determine whether there

was a “break in the causal chain” between the

constitutional violation and the consent; that is

to say, consent cannot be the product of the illegal detention. See Santiago, 310 F.3d

at 343. 

To determine whether consent was independent, we consider “1) the temporal proximity of the illegal conduct and the consent;

2) the presence of intervening circumstances;

and 3) the purpose and flagrancy of the initial

misconduct.” Jones, 234 F.3d at 243.

Though the initial officer misconduct was not

flagrant, the first two factors cut decidedly

against the government. 

The consent followed closely on the heels

of the illegal detention, and there is no evidence that (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 Jones we found

the causal chain had not been broken where

the officers “appeared to knowingly prolong

the detention” by purposely failing to return

one of the passenger’s ID’s. Id. We give the

same legal effect today to the failure of the

government to meet its burden of proving that

Jenson’s consent was independently given.

We note also that the evidence was ultimately discovered on Jenson’s person, pursuant to a pat-down search, not in the vehicle

that Jenson gave Gray permission to inspect.

It is without question that Jenson did not consent to the pat-down search, but limited

pat-down searches are permissible “for the

protection of the police officer, where he has

reason to believe that he is dealing with an

armed and dangerous individual, regardless of

whether he has probable cause to arrest the

individual for a crime.” Terry, 392 U.S.

at 27.12

There is no Terry violation “ifthe searching

officer can point to specific and articulable

facts suggesting actual physical risk to himself

or others.” Sink, 586 F.2d at 1048. When

Gray informed Jenson he would conduct a patdown search, Jenson became upset, complained of harassment, and began emptying his

pockets. Although we do not question Gray’s

decision to conduct a frisk in response to such

nervous behavior, the suspicious conduct

occurred only after reasonable suspicion to

continue the detention had been dispelled and

Gray had obtained involuntary consent to

search the vehicle.

Under the fruit of the poisonous tree doctrine, “all evidence derived from the . . . illegal

search . . . must be suppressed, unlessthe government shows that there was a break in the

chain of events sufficient to refute the inference that the evidence was a product of the

constitutional violation.” Dortch, 199 F.3d at

200-01. The police would not have discovered either Jenson’s gun or marihuana but for

the search of his person, and the police would

not have searched his person had they not il10(...continued)

Instead, because the causal chain between the

illegal detention and Dortch’s consent to a third

body search was not broken, the search was

nonconsensual.”).

11 But see Dortch, 199 F.3d at 196, 198 (deciding that statement that defendant was free to

leave wasineffectual where police detained vehicle

and license, and defendant driver “could not

reasonably 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 beyond the time

whenreasonable suspicion expired. Therefore,

the evidence is fruit of the poisonous tree and

must be suppressed.13

IV.

The government cites Brigham to support

its argument, but on close inspection it does

not apply to these facts. There we found that

the police had reasonable suspicion to search

defendant’s vehicle where the defendant driver

(1) was not the lessee of the vehicle, (2) the

lessee of the vehicle was not in the car, and

(3) the driver’s and passenger’s versions of

their itinerary differed. Brigham, 382 F.3d at

508. It was critical to the holding in Brigham

that one of the car’s occupants had provided

the police with a fictitious ID and therefore,

had not been cleared by the officers’ computerized search when consent was given. See id.

at 510. We noted that cases such as Dortch

and Jones “are about timing and sequence:

After the computer checks came up ‘clean,’

there remained no reasonable suspicion of

wrongdoing by the vehicle’s occupants.” Id.

at 510. 

In Brigham, because the police obtained

consent to search defendant’s vehicle while the

background check was pending, the detention

continued to be justified by the facts that gave

rise to its inception, so no Fourth Amendment

violation occurred. See id. at 509 (quoting

Shabazz, 993 F.2d at 437). A fortiori, because

there was no Terry violation, there was no

need to inquire whether consent was

constitutionally tainted. See id. at 512. Here,

however, the request to search occurred after

defendant’s license cleared, and as instructed

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 this

matter is REMANDED for 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

result of an illegalsearch, and the government does

not argue that Jenson has waived his right to

request suppression of the drugs.

14 Some language in Brigham suggests that it

does not matter in what sequence the police ask for

consent to search the vehicle and conduct the

background ID search. See 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 means.”). 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 Dortch,

Jones, or Santiago. See id. at 510 n.10. The best

understanding of Brigham isto 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.