### FILED U.S.COURT OF APPEALS ELEVENTH CIRCUI T October 22,

2003 THOMAS K. KAHN

CLERK [PUBL ISH]
IN THE UNITED STATES COURT OF APPEALS FOR TH E ELEV ENTH C IRCUIT

________________________ No. 02-15891

________________________ D. C. Docket No. 02-00143-CR -N
UNI TED STA TES OF A MER ICA, Plaintiff- Appe llant,
versus JESS IE JER OM E PE RKIN S, JR., JOH NNY LEW IS SC OTT , Defen dants-A ppellees.

________________________ Appeal from the United States District Court for the Middle

Distr ict o f Alaba

ma

_________________________ (October 22, 2003) Before DU BINA, B ARKE TT and H ILL, Circuit Judges.2

BARKE TT, Circuit Judge: The United States

appeals from t

he trial court’s orde

r granting t

he motions of Jesse Jer

ome Perkins Jr. a

nd Johnny Lewis Scott t o suppress all

statements made and ph ysical evid ence ob tained du ring a traf fic stop fo r the issua nce of a tr affic warning citat

ion. Following an e

videntiar y hearing, t

he Magistrate

Judge recommended that t

he motions be grant

ed. The distr

ict court accepted t

he Magis trate Judg e’s recom menda tion, and we affir m these d ecisions. I. B ACKGROUND The essentia

l facts of this case are not in di spute and are f ully sta ted in the Magistrate Judge’s recommendation. Officer Colst on of the Alabama Highway Patrol w as patrollin g the inter state wh en he ob served a maroo n Plym outh automobile wit

h a Florida license plat

e cross the whit

e fault line and veer ont o the shoulder of the

highway. Fearing t

hat the dri

ver was falli

ng asleep or under

the influence of

drugs or alcohol , Colston ini tiated a traffic stop and approached the passeng er side ofthe vehic le wher e Scott w as seated, e xplainin g to both defend ants that he st opped them to ensure

that Perkins , who was driving, was not asleep or under the influence of drugs o r alcohol. After inspecting Perkins’ driver’s license and insu rance inf ormatio n, Colsto n asked Perkin s to get ou t of the car so he co uld give Perkins a warni

ng ticket f

or a lane violation, as suring him that , after t he3

issuance of t

he warning cita

tion, he would be f

ree to lea ve. Scott re

mained in the vehicle. After b riefly searc hing P erkins fo r weap ons, Co lston then directed h im to sit in the patr

ol car while he

completed the

warning ticket . Noticing t he Tampa address on Perkins’ Florida driver’s l icense, Colston asked Perkins if Tampa was his ul timat e dest inat ion. Pe rkins ’ nega

tive respon se prompted Col ston t o ask hi m a series of que stions about his reside

ncy, employment, and desti nation. Perki

ns explained that he had once lived in Tam pa but had since relocated to Mo ntgomery, Alabama , where he w as employed at Rhodes F urniture. In resp onse to Co lston’s questions about his destinat ion, Perkins indicated t

hat he was headed to Greenville, Alabama. Accord ing to Colston, Perkins w as extremely nervous, breathed rapidly, and rep eated Co lston’s qu estions b efore an swerin g them. P erkins w as not fre e to leave du ring this q uestionin g. Colsten then rad ioed the d ispatch o fficer to co nduct a d river’s licen se check
. While waiting for

the response,

Colston asked Perki

ns if Scott l

ived in Tampa or Montgomery. Colston al so asked Perkins more detaile d questions about how long he had lived in Montg omery, w hen he w as going to g et an Alabam a driver’s license, and whom he was going to visit in Greenville. Perkins t old Colston tha

t he was going to visit his cousin, Shantay. After the driver’s license check revealed4

that Perkins’ license was valid and that he had no outstanding criminal warrants, Colston gave the

completed warning t

icket to Per

kins for his s ignature. Colston testified t

hat, after completi

ng the warning citation, he was finished with t hat portion of his

investiga

tion rela ting to the

traffic stop. However, Colst

on continued to detain Perkins because of his nervousness; what he perceived as Perkins’ evas ive behavior i n response to hi s questions;and his hunch that Perkins was be ing untr uthful ab out his d estination . Colston subseq uently de cided to question Scott ab out his d estination
. Colston asked S cott to iden tify himse lf and qu estioned him abo ut his destination. Scott

explained that he and Perkins were going to Greenville. When Colston asked w hom h e wou ld be visitin g in Gr eenville, S cott told h im he w ould be visiti ng a girl named Quinn. Colston also asked Scott if the car cont

ained any contraband or ot

her illegal substanc es. Scott di savowed any knowledge of any narcotics or other contr

aband. Colston t

estifi ed that Scott

was not free to leave during this ques tioning. Without further

inquiry, Col ston returne d to his patr ol car, re trieved t he signed warning ci

tation fr om Perkins, and aske d whether the vehicle contai ned any contraband or ot

her illegal substanc es. When Perkins said no, Colston aske d for Perkins’ permi ssion to sea rch the vehic le. Perkins refused to cons ent, and Colst on5

then called the dispat

ch officer a

nd requested a dr

ug-sniffing dog. When the canine unit ar rived, Col ston remove d Scott fro m th e vehic le,

con duc ted

a br ief pat-do wn search for weapons, and placed him in the backseat of t he patrol car. Colston le ft the defendants in the car while he confer red with the canine unit office r. Unaware that thei r conversation was being taped,Scott disavowed any knowledge of the existence of narco tics, and b oth defe ndants d ebated ab out wh ether the d og wo uld be able to find dru gs. Afte r conclu ding his conver sation w ith the can ine unit officer,Colston joined Perkins and Scott in the patr

ol car and agai

n asked if any narcotics , contrab and, or o ther we apons w ere in the v ehicle. W hen Pe rkins said no, Colston rephr

ased the quest

ion, asking Per

kins if he had a

ny narcotic s for personal use. Again, Perkins denied the presenc e of narcotics. Undaunted, Colston asked Perkins to tell hi m the exact amount of narcotics that he had hidden in the car. Perkins final ly acquies ced, admitt

ed that narc otics were i

n the car, a

nd offered to show Colst

on where they were hidde n. Perkins was esc orted to the vehicle where he informed Colston that the drugs were in the ce nter console, where Colst on then found t hem.6 II. STANDARD OF REVIEW The gr ant or de nial of a m otion to s uppres s eviden ce is review ed in this Court a s a mixed question of law a nd fact. United States v. Holloway , 290 F.3d 1331, 1334 (11th Cir. 2002). We assess the district court’s findings of fac t 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 part y that prevailed below which in this case is Perkin s and S cott. United States v. Wilson , 894 F.2d 1245, 1254 (11th Cir. 1990). III . DISCUS SION The Fourth Amendment to the Unit ed States Const

itution pr otects t he right of persons to be f

ree from unreasona

ble searche s and seizure s. U.S. Const. a mend. IV. A seizure take s place “wheneve r a police of

ficer acc osts an indi

vidual and restrains his freedom to walk away.” United States v. Brignoni-Ponce , 422 U.S. 873, 87 8 (197 5). Traf fic stops q ualify as se izures un der the F ourth A mendm ent. Delaware v. Prou se , 440 U .S. 648 , 653 (1 979). The Supreme Court has identified at least t hree separate categori es of policecitizen enc ounters in determ ining w hich leve l of Fou rth Am endme nt scrutin y to apply: (1) brief, consensual and non-coercive interactions that do not require Fourth Amen dment s crutiny, Florida v. Bostick , 501 U .S. 429 (1991 );7

(2) legitimate and rest

rained investigati

ve stops short of arrests t o which limited Fourth Amen dment s crutiny is a pplied, Terry v . Ohio , 392 U.S. 1 (1968); and ( 3) technical arrest

s, full-blown searches or custodia l detentions that

lead to a strict

er form o f Four th Am endme nt scrutin y, Brow n v. Illino is , 422 U.S. 590 (1975). As the M agistrate Ju dge reco gnized: At issue in this case is the second type of encounter, com monly referred to as a Terry stop. United States v. P urcell , 236 F.3d 1274, 1277 ( 11th C ir. 2001 ). . . . Terry requires that an office r have an objective , reasona ble susp icion of c riminal ac tivity. Pur suant to th is standard, a

traffic stop must be “r

easonably related in scope to the circums tances w hich justif ied the inte rference in the first p lace,” Purcell , 236 F.3d at 1277 (ci ting Terry , 392 U.S. at 20) . . . , and may not last “any longer t

han necessary to process the tr affic violation” unless there is articulable suspicion of other illegal activity. Id . (citi ng United States v. Holloman , 113 F.3d 192, 196 (11th Cir. 1997)). Rec. of Magis. Judge , (Oct. 3, 2002) at 9. Unde r the exclu sionary r ule, evide nce obta ined in an encoun ter that is in violation of the Fourth Amendment, including the direc t products of police misconduct and evidence derived f rom the illegal conduct, or “fruit of the poisonous tree,” cannot be used in a cri minal trial agai

nst the victim of the illegal search an d seizure
. United States v. Terzado-Madruga , 897 F .2d 109 9, 1112 (11th Cir. 199 0). See also Weeks v. United States , 232 U .S. 383 , 391-9 3 (191 4).8

Perkin s and S cott initially ar gue that th e duratio n of their traffic stop itself was unconstitutional under Terry . Even construi ng the facts

in favor of Perki

ns and Scott, we agre e with the Magist rate Judge t

hat in thi s case the dur

ation of the traffic stop was no t unreaso nable. See Purcell , 236 F .3d 127 4, 1278 (finding that a traffic stop totaling fo urteen m inutes is n ot unrea sonable on its face ); United States v. Hardy , 855 F.2d 753, 761 (11th Cir. 1988) (holding tha t an invest

igative stop of 5 0-minu te duratio n is not u nreason able). 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 Ci r. 1992) (findi

ng that a two-and-a-half hour investigative detention is too long for a Terry stop). However, we conclude that the circumst

ances here do not

give rise t

o the requisite r easonab le suspicio n justifyin g contin ued dete ntion of Perkin s and S cott after the warning ticket had been i ssued. A traffic stop may be prolonged where an officer i s able to ar

ticulat e a reasonable suspicion of other illegal acti

vity beyond the traffic o ffense. Purcell , 236 F.3d at 1277 . “While ‘reasonable suspicion’ is a less dem anding standard than pro bable cau se and re quires a s howin g consid erably less than p repond erance o f the evid ence, the F ourth A mendm ent requ ires at least a minimal level of objecti ve justificat

ion.” Illinoi s v. Wardlow , 528 U.S. 119, 123 (2000) (quoting United States v. Sokolow , 490 U .S. 1, 7 (1 989)). When making a1 Perkins and Scott a rgue that the Ma

gistrate Judge c

orrectly d etermined that: The government cannot rely on an inconsistent statement acquired after an officer has already begun investig ating matters unrelated to the traffic stop a

s evidence of a r

easonable suspic

ion of criminal act ivi ty. . . . C ols ton ’s t est imo ny es tab lis hes tha t an y 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.
9 determinat

ion of “reas onable suspic ion,” we must “look at the ‘t otalit y of the circumstances’ of each case to see whether the d etaining officer has a ‘particulari

zed and objective basis’ f or suspecting legal wrongdoing.” United States v. Arvizu , 534 U.S. 266, 273 (2002) (quot ing United States v. Cortez , 449 U.S. 411, 417-18 (1981)). It is clear that “an ‘inchoate and unparticular ized suspicion’ or ‘hunch’ of cr iminal act

ivity” i s not enough to sat isfy the mi

nimum level of o bjectivity re quired. Wardlow , 528 U.S. at 124 (quot ing Terry , 392 U.S. at 27). The Government argues tha t the tot ality of the following c ircumstance s gave rise to a r

easonable sus

picion of drug t

rafficki ng: (1) Perkins’ nervousness; ( 2) the “odd behavior” of

Perkins in repe ating the que stions Colst on asked him; (3) Perkin s’ posses sion of a Florida driver’s lic ense w hile claimin g to live in Montgomery, Alabama; and ( 4) the “inc onsistent

” statement

s from Perkins and Scott with regard to whom they were going to see in Greenville, Alabama. 1We need not addre ss this argument b

ecause we find t

hat even with this “

fact,” reasona

ble suspicion does not exist here.
10 We fin d that thes e circum stances, se parately o r cumu latively, can not sup port a legitimate i

nference of further illegal activit y that rises t

o the level of objecti

ve,
reasona ble susp icion req uired un der the F ourth A mendm ent. First, t he Supreme Court has note d that a tr affic st op is an “unset

tling show of authority” that may “create substanti al anxiety.” Delaware , 440 U .S. at 657
. There is no reason w hy Colston should hav e reasonably suspected that Perkins’
nervou sness w as tied to an ything o ther than the fact tha t he was being m omenta rily detained by a

n authority

figure with police power over him. On cross examination, Colston admitted that a nerv ous driv er is not in itself susp icious. Rec. of Magis. Judge at 15 n.4 9. Furth ermore , repeating the ques tions of a police of ficer hard ly constitutes “odd behavior”; it is easily a common symptom of “substantial anxiety” that many habi

tually lapse into when exper iencing fea

r. Indeed, i

t is a common
occurre nce at ora l argum ents befo re this Co urt by ev en the m ost seaso ned law yers. Likewise, one cannot reasonably assume that a ner vous person claiming to be an in-state resident while in possession of an out-of-stat e license is l

ying about where he or she is from and is thus a drug traffic ker. There are many reasons one may have failed to change the license including lack of ti me because of a recent move,11

cost, inc onvenience, c arelessne ss, or simple lazines s. Finall y, the answers

given by Perkins and Scott

as to whom they were going t o see in Greenvil

le, Alabama,do not sup port reas onable s uspicion . Perkin s told the o fficer that h e was g oing to v isit his cous in Shan tay in Gr eenville. S cott told C olston th at he wa s going to Greenville to visit a girl named Quinn. S cott’s answer did not contradict Perkins’ answer in any way. Per kins and Scott c ould have inte nded to see both pe

rsons during their visit, o r Perkin s could h ave inten ded to v isit Shan tay while Scott visited Q uinn. In this Circuit, we have required more than t he innocuous characteristics of nervousness, a

habit of repe ating quest ions, and an out

-of-stat e license for giving rise to reas onable s uspicion
. See United States v. P ruitt , 174 F.3d 1215, 1221 (11th C ir. 1999 ) (holdin g that the f act that the d river w as Hisp anic and had an o utof-state license plate was not enough t o detain him bey

ond the issuanc e of the speedin g ticket); United States v. T apia , 912 F.2d 1367, 1371 (11th Ci r. 1990) (“[B]eing Mexican, having few pieces of luggage, being vis ibly nervous or shaken during a confrontation with a stat e trooper, or traveli

ng on the interstate with Texas license pla tes (not ye t a crime in Alabam a) . . . fail to su ggest tha t appellan t . . . [was] en gaged in any crim inal activity o ther than speedin g on the highw ay.”).12

As Colston test

ified, f ollowing issua

nce of the tr

affic ci tation t o Perkins, he merely had a “hunch” based upon the totalit y of the circumstances that Perkins was lying to him about his desti nation. This “hunch” led him to ini tiate a new investigation of other c

riminal activi

ty after the purpose of the t raffic stop had ended. Thus, the

continued det

ention of Perki

ns and Scott beyond t

he issuance of the traffic c itation, du ring w hich Co lston rep eatedly ask ed if there were d rugs in the car and ca

lled in a dr

ug dog, was unlawful. Si nce Perkins’ c onsent to the search of the car was the product of an unlawful detention, “the consent was tainted by the illegality and was ineffect ive to justify t

he search.” Florida v. Royer , 460 U.S. 491, 507-08 (1983) (pl urality opinion). There fore, any st atements made and evi den ce s eized d

uri ng t he u nla wful det ent ion are to b e ex clu

ded . Fi nal ly, we emphasize tha

t “the fa ct that [ Colston’s] hunch ultimat ely turned out

to be correct– i.e. that [Perkins a nd Scott] were illegal ly transpor

ting [drugs] is irrelevant for pur poses o f the Fo urth A mendm ent. To h old othe rwise w ould op en the do or to patently illegal searches by gove

rnment officials, who would att empt to just

ify the legality of t

heir conduct after-the-f

act.” Pruitt , 174 F.3d at 1221 n.4.13 IV. CONCL USION Based on the foregoi

ng, we conclude tha

t Colston’s

prolonged detent

ion of Perkin s and S cott beyo nd the iss uance o f the traffic citation w as unco nstitution al. Colston’s inference from the tot ality of the ci

rcumstances that he observed was merely an unpartic ularized h unch th at failed to r ise to the lev el of reaso nable suspicion of other criminal activity. We thus AFFIRM the distr ict court ’s grant of Perkins and Scott’s motions to su ppress.