FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 October 22, 2003 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 02-15891

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D. C. Docket No. 02-00143-CR-N

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

versus 

JESSIE JEROME PERKINS, JR., 

JOHNNY LEWIS SCOTT, 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(October 22, 2003)

Before DUBINA, BARKETT and HILL, Circuit Judges.
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BARKETT, Circuit Judge:

The United States appeals from the trial court’s order granting the motions

of Jesse Jerome Perkins Jr. and Johnny Lewis Scott to suppress all statements made

and physical evidence obtained during a traffic stop for the issuance of a traffic

warning citation. Following an evidentiary hearing, the Magistrate Judge

recommended that the motions be granted. The district court accepted the

Magistrate Judge’s recommendation, and we affirm these decisions. 

I. BACKGROUND

The essential facts of this case are not in dispute and are fully stated in the

Magistrate Judge’s recommendation. Officer Colston of the Alabama Highway

Patrol was patrolling the interstate when he observed a maroon Plymouth

automobile with a Florida license plate cross the white fault line and veer onto the

shoulder of the highway. Fearing that the driver was falling asleep or under the

influence of drugs or alcohol, Colston initiated a traffic stop and approached the

passenger side of the vehicle where Scott was seated, explaining to both defendants

that he stopped them to ensure that Perkins, who was driving, was not asleep or

under the influence of drugs or alcohol. After inspecting Perkins’ driver’s license

and insurance information, Colston asked Perkins to get out of the car so he could

give Perkins a warning ticket for a lane violation, assuring him that, after the
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issuance of the warning citation, he would be free to leave. Scott remained in the

vehicle. 

After briefly searching Perkins for weapons, Colston then directed him to sit

in the patrol car while he completed the warning ticket. Noticing the Tampa

address on Perkins’ Florida driver’s license, Colston asked Perkins if Tampa was

his ultimate destination. Perkins’ negative response prompted Colston to ask him a

series of questions about his residency, employment, and destination. Perkins

explained that he had once lived in Tampa but had since relocated to Montgomery,

Alabama, where he was employed at Rhodes Furniture. In response to Colston’s

questions about his destination, Perkins indicated that he was headed to Greenville,

Alabama. According to Colston, Perkins was extremely nervous, breathed rapidly,

and repeated Colston’s questions before answering them. Perkins was not free to

leave during this questioning. 

Colsten then radioed the dispatch officer to conduct a driver’s license check. 

While waiting for the response, Colston asked Perkins if Scott lived in Tampa or

Montgomery. Colston also asked Perkins more detailed questions about how long

he had lived in Montgomery, when he was going to get an Alabama driver’s

license, and whom he was going to visit in Greenville. Perkins told Colston that he

was going to visit his cousin, Shantay. After the driver’s license check revealed
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that Perkins’ license was valid and that he had no outstanding criminal warrants,

Colston gave the completed warning ticket to Perkins for his signature. Colston

testified that, after completing the warning citation, he was finished with that

portion of his investigation relating to the traffic stop. However, Colston

continued to detain Perkins because of his nervousness; what he perceived as

Perkins’ evasive behavior in response to his questions; and his hunch that Perkins

was being untruthful about his destination. Colston subsequently decided to

question Scott about his destination. 

Colston asked Scott to identify himself and questioned him about his

destination. Scott explained that he and Perkins were going to Greenville. When

Colston asked whom he would be visiting in Greenville, Scott told him he would

be visiting a girl named Quinn. Colston also asked Scott if the car contained any

contraband or other illegal substances. Scott disavowed any knowledge of any

narcotics or other contraband. Colston testified that Scott was not free to leave

during this questioning. 

Without further inquiry, Colston returned to his patrol car, retrieved the

signed warning citation from Perkins, and asked whether the vehicle contained any

contraband or other illegal substances. When Perkins said no, Colston asked for

Perkins’ permission to search the vehicle. Perkins refused to consent, and Colston
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then called the dispatch officer and requested a drug-sniffing dog. When the canine

unit arrived, Colston removed Scott from the vehicle, conducted a brief pat-down

search for weapons, and placed him in the backseat of the patrol car. Colston left

the defendants in the car while he conferred with the canine unit officer. Unaware

that their conversation was being taped, Scott disavowed any knowledge of the

existence of narcotics, and both defendants debated about whether the dog would

be able to find drugs. After concluding his conversation with the canine unit

officer, Colston joined Perkins and Scott in the patrol car and again asked if any

narcotics, contraband, or other weapons were in the vehicle. When Perkins said

no, Colston rephrased the question, asking Perkins if he had any narcotics for

personal use. Again, Perkins denied the presence of narcotics. Undaunted,

Colston asked Perkins to tell him the exact amount of narcotics that he had hidden

in the car. Perkins finally acquiesced, admitted that narcotics were in the car, and

offered to show Colston where they were hidden. Perkins was escorted to the

vehicle where he informed Colston that the drugs were in the center console, where

Colston then found them.
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II. STANDARD OF REVIEW

The grant or denial of a motion to suppress evidence is reviewed in this

Court as a mixed question of law and fact. United States v. Holloway, 290 F.3d

1331, 1334 (11th Cir. 2002). We assess the district court’s findings of fact under

the clearly erroneous standard and review the application of the law to the facts de

novo. Id. The facts are construed in favor of the party that prevailed below which

in this case is Perkins and Scott. United States v. Wilson, 894 F.2d 1245, 1254

(11th Cir. 1990).

III. DISCUSSION

The Fourth Amendment to the United States Constitution protects the right

of persons to be free from unreasonable searches and seizures. U.S. Const. amend.

IV. A seizure takes place “whenever a police officer accosts an individual and

restrains his freedom to walk away.” United States v. Brignoni-Ponce, 422 U.S.

873, 878 (1975). Traffic stops qualify as seizures under the Fourth Amendment.

Delaware v. Prouse, 440 U.S. 648, 653 (1979). 

The Supreme Court has identified at least three separate categories of policecitizen encounters in determining which level of Fourth Amendment scrutiny to

apply: (1) brief, consensual and non-coercive interactions that do not require

Fourth Amendment scrutiny, Florida v. Bostick, 501 U.S. 429 (1991); 
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(2) legitimate and restrained investigative stops short of arrests to which limited

Fourth Amendment scrutiny is applied, Terry v. Ohio, 392 U.S. 1 (1968); and (3)

technical arrests, full-blown searches or custodial detentions that lead to a stricter

form of Fourth Amendment scrutiny, Brown v. Illinois, 422 U.S. 590 (1975).

As the Magistrate Judge recognized: 

At issue in this case is the second type of encounter, commonly 

referred to as a Terry stop. United States v. Purcell, 236 F.3d 1274,

1277 (11th Cir. 2001). . . . Terry requires that an officer have an

objective, reasonable suspicion of criminal activity. Pursuant to this

standard, a traffic stop must be “reasonably related in scope to the

circumstances which justified the interference in the first place,”

Purcell, 236 F.3d at 1277 (citing Terry, 392 U.S. at 20) . . . , and may

not last “any longer than necessary to process the traffic 

violation” unless there is articulable suspicion of other illegal activity.

Id. (citing United States v. Holloman, 113 F.3d 192, 196 (11th Cir.

1997)).

Rec. of Magis. Judge, (Oct. 3, 2002) at 9.

Under the exclusionary rule, evidence obtained in an encounter that is in

violation of the Fourth Amendment, including the direct products of police

misconduct and evidence derived from the illegal conduct, or “fruit of the

poisonous tree,” cannot be used in a criminal trial against the victim of the illegal

search and seizure. United States v. Terzado-Madruga, 897 F.2d 1099, 1112 (11th

Cir. 1990). See also Weeks v. United States, 232 U.S. 383, 391-93 (1914). 
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Perkins and Scott initially argue that the duration of their traffic stop itself

was unconstitutional under Terry. Even construing the facts in favor of Perkins

and Scott, we agree with the Magistrate Judge that in this case the duration of the

traffic stop was not unreasonable. See Purcell, 236 F.3d 1274, 1278 (finding that a

traffic stop totaling fourteen minutes is not unreasonable on its face); United

States v. Hardy, 855 F.2d 753, 761 (11th Cir. 1988) (holding that an investigative

stop of 50-minute duration is not unreasonable). Cf. United States v. Place, 462

U.S. 696, 709, 710 (1983) (holding that a 90-minute stop is probably too long for a

Terry stop); United States v. Codd, 956 F.2d 1109, 1111 (11th Cir. 1992) (finding

that a two-and-a-half hour investigative detention is too long for a Terry stop). 

However, we conclude that the circumstances here do not give rise to the

requisite reasonable suspicion justifying continued detention of Perkins and Scott

after the warning ticket had been issued. A traffic stop may be prolonged where an

officer is able to articulate a reasonable suspicion of other illegal activity beyond

the traffic offense. Purcell, 236 F.3d at 1277. “While ‘reasonable suspicion’ is a

less demanding standard than probable cause and requires a showing considerably

less than preponderance of the evidence, the Fourth Amendment requires at least a

minimal level of objective justification.” Illinois v. Wardlow, 528 U.S. 119, 123

(2000) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). When making a
1Perkins and Scott argue that the Magistrate Judge correctly determined that:

The government cannot rely on an inconsistent statement acquired 

after an officer has already begun investigating matters unrelated to 

the traffic stop as evidence of a reasonable suspicion of criminal 

activity. . . . Colston’s testimony establishes that any 

investigation related to the lane violation ended when he completed 

the warning citation and gave it to Perkins for his signature. 

Rec. of Magis. Judge at 11.

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determination of “reasonable suspicion,” we must “look at the ‘totality of the

circumstances’ of each case to see whether the detaining officer has a

‘particularized and objective basis’ for suspecting legal wrongdoing.” United

States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449

U.S. 411, 417-18 (1981)). It is clear that “an ‘inchoate and unparticularized

suspicion’ or ‘hunch’ of criminal activity” is not enough to satisfy the minimum

level of objectivity required. Wardlow, 528 U.S. at 124 (quoting Terry, 392 U.S.

at 27).

The Government argues that the totality of the following circumstances gave

rise to a reasonable suspicion of drug trafficking: (1) Perkins’ nervousness; (2) the

“odd behavior” of Perkins in repeating the questions Colston asked him; (3)

Perkins’ possession of a Florida driver’s license while claiming to live in

Montgomery, Alabama; and (4) the “inconsistent” statements from Perkins and

Scott with regard to whom they were going to see in Greenville, Alabama.1 
We need not address this argument because we find that even with this “fact,” reasonable

suspicion does not exist here.

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We find that these circumstances, separately or cumulatively, cannot support a

legitimate inference of further illegal activity that rises to the level of objective,

reasonable suspicion required under the Fourth Amendment. 

First, the Supreme Court has noted that a traffic stop is an “unsettling show

of authority” that may “create substantial anxiety.” Delaware, 440 U.S. at 657. 

There is no reason why Colston should have reasonably suspected that Perkins’

nervousness was tied to anything other than the fact that he was being momentarily

detained by an authority figure with police power over him. On cross examination,

Colston admitted that a nervous driver is not in itself suspicious. Rec. of Magis.

Judge at 15 n.49. Furthermore, repeating the questions of a police officer hardly

constitutes “odd behavior”; it is easily a common symptom of “substantial anxiety”

that many habitually lapse into when experiencing fear. Indeed, it is a common

occurrence at oral arguments before this Court by even the most seasoned lawyers. 

Likewise, one cannot reasonably assume that a nervous person claiming to be an

in-state resident while in possession of an out-of-state license is lying about where

he or she is from and is thus a drug trafficker. There are many reasons one may

have failed to change the license including lack of time because of a recent move,
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cost, inconvenience, carelessness, or simple laziness. Finally, the answers given by

Perkins and Scott as to whom they were going to see in Greenville, Alabama, do

not support reasonable suspicion. Perkins told the officer that he was going to visit

his cousin Shantay in Greenville. Scott told Colston that he was going to

Greenville to visit a girl named Quinn. Scott’s answer did not contradict Perkins’

answer in any way. Perkins and Scott could have intended to see both persons

during their visit, or Perkins could have intended to visit Shantay while Scott

visited Quinn. 

In this Circuit, we have required more than the innocuous characteristics of 

nervousness, a habit of repeating questions, and an out-of-state license for giving

rise to reasonable suspicion. See United States v. Pruitt, 174 F.3d 1215, 1221

(11th Cir. 1999) (holding that the fact that the driver was Hispanic and had an outof-state license plate was not enough to detain him beyond the issuance of the

speeding ticket); United States v. Tapia, 912 F.2d 1367, 1371 (11th Cir. 1990)

(“[B]eing Mexican, having few pieces of luggage, being visibly nervous or shaken

during a confrontation with a state trooper, or traveling on the interstate with Texas

license plates (not yet a crime in Alabama) . . . fail to suggest that appellant . . .

[was] engaged in any criminal activity other than speeding on the highway.”). 
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As Colston testified, following issuance of the traffic citation to Perkins, he

merely had a “hunch” based upon the totality of the circumstances that Perkins was

lying to him about his destination. This “hunch” led him to initiate a new

investigation of other criminal activity after the purpose of the traffic stop had

ended. Thus, the continued detention of Perkins and Scott beyond the issuance of

the traffic citation, during which Colston repeatedly asked if there were drugs in

the car and called in a drug dog, was unlawful. Since Perkins’ consent to the

search of the car was the product of an unlawful detention, “the consent was

tainted by the illegality and was ineffective to justify the search.” Florida v. Royer,

460 U.S. 491, 507-08 (1983) (plurality opinion). Therefore, any statements made

and evidence seized during the unlawful detention are to be excluded. Finally, we

emphasize that “the fact that [Colston’s] hunch ultimately turned out to be

correct–i.e. that [Perkins and Scott] were illegally transporting [drugs] is irrelevant

for purposes of the Fourth Amendment. To hold otherwise would open the door to

patently illegal searches by government officials, who would attempt to justify the

legality of their conduct after-the-fact.” Pruitt, 174 F.3d at 1221 n.4.
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IV. CONCLUSION

Based on the foregoing, we conclude that Colston’s prolonged detention of

Perkins and Scott beyond the issuance of the traffic citation was unconstitutional. 

Colston’s inference from the totality of the circumstances that he observed was

merely an unparticularized hunch that failed to rise to the level of reasonable

suspicion of other criminal activity. We thus AFFIRM the district court’s grant of

Perkins and Scott’s motions to suppress.