UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-11250

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

NAPOLEON JONES,

Defendant-Appellant.

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No. 99-11259

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EDUARDO GABRIEL DANIEL,

Defendant-Appellant.

Appeals from the United States District Court

For the Northern District of Texas

November 20, 20002

Before DUHÉ, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

In these appeals, which were consolidated for oral argument,

both defendants Napoleon Jones and Eduardo Gabriel Daniel appeal

their convictions arising out of a traffic stop where n arcotics

were found in their rental car. Because the narcotics were the

fruit of an illegal seizure, we vacate the convictions and

sentences and remand.

I. BACKGROUND

On April 2, 1999, at approximately 11:57 a.m., Officers Tommy

Russell and Barry R alston initiated a traffic stop of a car just

inside the city limits of Amarillo, Texas, for a speeding

violation. Inside the vehicle were the two defendants, who were

traveling from Los Angeles to Memphis. Upon being pulled over,

Russell approached the vehicle on the driver’s side while Ralston

moved towards the passenger’s side. Russell asked Daniel, the

driver of the car, for his driver’s license and proof of insurance.

After Daniel produced his California driver’s license and a rental

car agreement for the vehicle, Russell asked Daniel to step outside

the car.

With Ralston by his side, Russell notified Daniel that he had

been stopped for speeding and would be issued a warning citation.

Russell then asked a series of questions including: 1) whether the3

vehicle w as a rental car; 2) who had rented it; 3) what was the

identity of the passenger; 4) where the defendants were going; and

5) why they were going to their destination. Daniel answered that

the car was a rental, that his mother had rented the vehicle, that

the passenger was his uncle, that the defendants were going to

Memphis, and that they were going to Memphis for a couple of weeks

to do some promotional work for Street Institute Records (“Street

Institute”). Subsequent to further questioning, Daniel replied

that he and Jon es were from California, specifically Los Angeles

County, and that they had worked together on other promotional

deals in various other states.

At about 12:00 p.m., after instructing Daniel to stay by the

road median, Russell began to question Jones. First, Russell

advised Jones that the car had been stopped for speeding and that

the defendants would be issued a warning ticket. Then, Russell

inquired about the defendants’ destination. Jones responded

“Memphis.” When Russell asked what the purpose of the trip was,

Jones stated, “Well, let me show you in the trunk.” On the way to

the trunk, Jones volunteered that he was originally from Memphis

and that he was doing some promotional work for a record company in

Beverly Hills. Russell inquired as to the duration of the

defendants’ stay in Memphis, and Jones replied “about a week.”

After rummaging through the trunk, Jones ha nded Russell a CD,

explaining that it was a promotional CD produced by Sage Stone

Ent ertainment (“Sage Stone”). At approximately, 12:02 p.m.,4

Russell directed Jones to return to his seat in the car.

Thereafter, Russell instructed Daniel to sit in the back of

the patrol car. Russell and Ralston then took seats in the front

and initiated a conversation with Daniel concerning the issuance of

the warning ticket. As Russell was filling out the warning

citation, he asked Daniel where he and Jones were going to be

staying in Memphis. Daniel explained that Jones had family in

Memphis and that if they did not stay with family, then they would

go to a hotel. Russell then asked for a second time who had rented

the car for Daniel. Daniel responded that his mother had. Russell

informed Daniel that the rental agreement did not state that there

were any additional authorized drivers, to which Daniel explained

that the “insurance” said it was permissible to com plete the

agreement in that fashion. At 12:04 p.m., Russell requested

Ralston to run a criminal history check on Daniel. After Ralston

forwarded Daniel’s information to the dispatcher, the dispatcher

instructed to standby. Russell continued with the questioning and

again asked Daniel what company he was with, to which Daniel

replied, “Street Institute.” Daniel further explained the nature

of his relationship with the company and that he managed a singer

named Tracy. Around this time, Russell asked Daniel if he had ever

been arrested. In response, Daniel stated that he had been

arrested for possession of crack cocaine.

While awaiting for the response from the dispatcher, Russell

exited the patrol car and again approached Jones and requested5

identification. As Jones was retrieving his wallet, Russell

inquired as to the nature of Daniel’s business dealings. Jones

explained that Daniel worked part-time with J ones’s company on

promotions. Upon further questioning, Jones responded that Daniel

was his son-in-law’s brother. At 12:09 p.m., Russell obtained

Jones’s Californi a driver’s license. Russell then asked whether

Daniel actually managed anyone, and Jones replied that Daniel only

did promotional work. Russell and Jones communicated for a few

more moments about Jones’s promotional trips with Daniel.

Thereafter, Russell advised Jones that the rental agreement did not

list any additional drivers, but indicated that this oversight was

“alright.” He then told Jones to sit down in the rental car.

During the time Russell spoke with Jones, the dispatcher responded,

and Ralston requested the dispatcher to run criminal history/wanted

checks and driver’s license verification on Daniel.

When Russell returned wit h Jones’s driver’s license to the

patrol car at 12:10 p.m., the dispatcher advised that it could not

completel y hear the information Ralston had given because of the

wind. Hence, Russell had Daniel close the back door of the patrol

car. Ralston then repeated the information about Daniel and

requested the appropriate checks as to Jones. Russell again

inquired as to the name of Daniel’s company, how long Daniel had

been with them, and his relationship with Jones. Again, Daniel

responded “Street Institute.” Moreover, Daniel clarified that

Jones was not really his uncle, but his brother ’s father-in-law.1 The magistrate judge’s Report and Recommendation indicates the

time as 12:16 p.m., but the videotape clear ly shows the time to

have been 12:17 p.m.

6 Russell next turned to questioning Daniel about his prior arrest.

Daniel explained that he was currently involved in a drug diversion

p rogram and that upon completion of the required classes, the

possession charge would be dismissed.

At 12:14 p.m., the dispatcher reported that neither Daniel or

Jones had a criminal history and that both drivers’ licenses were

current. At 12:15 p.m., Russell exited the patrol car and returned

Jones’s driver’s license. Russell continued to question Jones,

asking him where the defendants were going to stay in Memphis, how

long Daniel had been with Jones’s company, the nature of the

defendants’ business relationship with Sage Stone, and the

relat ionship between Sage Stone and Street Institute. Jones

responded accordingly and volunteered to show Russell a compact

disk with the name of both Street Institute and Sage Stone on the

label.

Without accepting Jones’s offer, Russell retu r ned to the

patrol car. He then asked Daniel if there were any narcotics in

the car. Daniel replied in the negative. The time was 12:17 p.m. 1

Notwithstanding Daniel’s answer, Russell asked Dani el if Ralston

could “take[] a look in the car.” Daniel replied in the

affirmative. Nearly a minute after obtaining consent, Russell

returned Daniel’s rental car agreement, but he still retained7

Daniel’s driver’s license and the warning citation.

Thereafter, Ralston approached Jones and asked hi m to join

Daniel in the back seat of the patrol car. Ralston then began a

search of the luggage in the trunk of the car and the trunk itself.

At 12:22 p.m., Ralston mot ioned Russell to take a look in the

trunk, having found what appeared to be a bundle of narcotics under

the trunk’s carpet lining. As a result, Daniel and Jones were

taken out of the patrol car, handcuffed, and then returned to the

back seat of the patrol car. The officers continued with the

search of the car with the aid of a screwdr iver and discovered

additional narcotics. During this search, Daniel and Jones made

allegedly incriminating remarks that were surreptitiously recorded

by the patrol car’s microphone. At 12:44 p.m., the officers placed

Jones under arrest and warned him of his Miranda rights. At 12:46

p.m., the officers placed Daniel under arrest in the same manner.

Both Daniel and Jones were indicted for: 1) conspiracy to

possess with intent to distribute cocaine and cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1) & 846; 2) possession of cocaine

base, in viol ation of 21 U.S.C. § 841(a)(1) & (b)(1)(A) and 18

U.S.C. § 2; and 3) possession of cocaine, in violation of 21 U.S.C.

§ 841(a)(1) & (b)(1)(C) and 18 U.S.C. § 2. Daniel and Jones both

filed motions to suppress evidence, which were referr ed to a

magistrate judge. An evidentiary hearing was held on the motions,

and the mag istrate judge entered separate Reports and8

Recommend ations (“R&Rs”) denying the defendants’ motions. Both

defendants objected to the R&Rs, but the district court overruled

the objections and adopted the R&Rs. Thereafter, Daniel entered a

conditional plea of guilty to Count One of the indictment pursuant

to Rule 11(a)(2) of the Federal Rules o f Criminal Procedure. He

was sentenced to a term of 135 months imprisonment, to be followed

by a five-year period of supervised release. On the government’s

motion, the district court dismissed the other two counts. Jones,

on the other hand, went to trial befo re a jury. After the

government rested its case, Jones moved for judgment of acquittal,

which motion the district court denied. He reurged his motion

before presentation of the jury charge, but the district court

deferred ruling on that motion. The jury returned a guilty verdict

on all three counts, and Jones again moved for judgment of

acquittal. The district court denied that motion and later

sentenced him to 151 months of imprisonment and a five-year term of

supervised release.

Both Daniel and Jones timely filed notices of appeal.

II. DISCUSSION

In t heir briefs, both Jones and Daniel primarily argue that

the district court erred in failing to suppress evidence obtained

from the traffic stop. They maintain that their detention was

prolonged and un reasonable, violating the Fourth Amendment, and

that, the refore, any resulting contraband was fruit of the9

poisonous tree and should have been excluded. S ee United States v.

Dortch , 199 F.3d 193, 197-98 (5th Cir. 1999).

A. Standard of Review

When considering a ruling on a motion to suppress, we review

questions of law de novo and factual findings for clear error. I d.

a t 197. Furthermore, we view the evidence in the light most

favorable to the party that prevailed in the district court. Id.

B. The Seizure Was Unreasonable And Violated The Fourth Amendment

Under the Fourth Amendment, the government violates a

defendant’s constitutional rights by executing a search or seizure

without probable cause. U nited States v. Lee

, 898 F.2d 1034, 1039

(5th Cir. 1990). When a warrantless search or seizure is

conducted, the burden shifts to the government to justify the

warrantless search. U nited States v. Chavis

, 48 F.3d 871, 872 (5th

Cir. 1995).

The stopping of a vehicle and the detention of its occupants

is a seizure withi n the meaning of the Fourth Amendment. U nited

Stat es v. Shabazz , 993 F.2d 431, 434 (5th Cir. 1993). But where

there is a reasonable and articulable suspicion that a person has

committed or is about to commit a crime, limited searches and

seizures are permissible under the Fourth Amendment despite the

lack of probable cause. S ee Lee

, 898 F.2d at 1039 ( referring to

the reasonable suspicion standard enunciated in Terry v. Ohio , 88

S. Ct. 1868 (1968)). To determine if a seizure has exceeded the2 Bec ause the defendants’ primary basis for contesting the

dis trict court’s failure to suppress the narcotics was that the

narcotics were the fruit of an unreasonable seizure, we need not

address the government’s contention that the d efendants’ lacked

standing to challenge the search of the vehicle. S ee

, e.g.

, Dortch , 199 F.3d at 197 & n.4.

10 scope of a permissible Terry stop, we must undertake a two-step

inquiry: 1) whether t he officer’s action was justified at its

inception; and 2) whether it was reasonably related in scope to the

circumstances that justified the interference in the first place.

See United States v. Kelley , 981 F.2d 1464, 1467 (5th Cir. 1993).

Here, the defendants do n ot challenge the initial stop for

violating the speed limit. Moreover, they recognize that because

the stop wa s valid, the officers had every right to request the

defendants’ licenses and the registration or rental papers for the

car and to r un a computer check on those documents. D ortch

, 199

F.3d at 198. Rather, the defendants question the officers’

satisfaction of Terry ’s second prong, asserting that the officers’

continued detention after the completion of the computer check was

unreasonable under the circumstances and exceeded the scope of the

initial stop. Based on that violation, the defendants charge that

the cocaine, cocaine base, and the recorded statements should have

been suppressed. 2

The facts and legal issues presented in the instant case are

similar to those in United States v. Dortch

, 199 F.3d 193 (5th Cir.

1999), which was issued after the district court denied the motions11

to suppress and entered the judgments of conviction in this case.

In Dortch

, the defendant and his passenger were traveling in a

rental car and were stopped by police because they had been driving

too close to a tractor-trailer. I d. at 195. The rental papers

indicated that neither the defendant or his passenger h ad rented

the car or were authorized drivers. I d. at 195-96. During the

stop, the police officers asked questions of the defendant and his

passenger. The defendant and the passenger gave inconsistent

answers about the defendant’s relationship with the person who had

rented the car. Id. at 196. Moreover, the defendant stated that

he had been in Houston the past two days, although the rental

papers ind icated that the car had been rented the day before in

Pensacola, Florida, home of the defendant. I d. In addition to the

questioni ng, the officers patted down the defendant, looking for

weapons. Id. at 195-96. Furthermore, while the officers awaited

a computer check of the defendant’s driver’s license and the rental

car, the defend ant consented to a search of the car’s trunk, but

declined a search of the rest of the vehicle. Id. at 196.

Thereafter, the officers told the defendant that he would be

free to go after the computer checks were completed but that the

car would be detained by the officers so that a canine search could

be perform ed. I d. Again, one of the officers patted down the

defendant, and nothing was found. I d. When the computer check

came back, one of the officers questioned the defendant about his12

record but did not inf orm him that he could leave. I d. A few

minutes later, the canine unit arrived, and the officers then told

the defendant that there were no outstanding warrants. I d.

Nevertheless, they told the defendant that a canine search would be

performed. Id. Ultimately, the dog alerted to the driver’s side

of the car, but no drugs were found. I d. Due to the alert,

however, the officers again patted down the defendant after

allegedly receiving a third co nsent. I d. This time drugs were

found on the defendant’s body. Id.

In Dortch

, we held that the defendant’s Fourth Amendment

rights had been violated when the detention extended b eyond the

completion of the computer check because, at that point, the basis

for the initial stop had been discharged. I d. at 198. Although

the gov ernment argued that the canine unit had arrived within

moments of the completion of the computer check and, thus, the

defendant had not been unreasonably detained, we concluded

otherwise. Id. at 198-99.

Similar to Dortch

, the computer checks in the instant case

were completed before the search of the vehicle occurred. At least

three minutes transpired from the response by the dispatcher to the

time that Russell asked for consent to search the car. Except for

obtaining Daniel’s signature, Russell had compl eted the warning

citation. But instead of obtaining Daniel’s signature and

returning his driver’s license and rental agreement, Russell chose13

the more dilatory tactic of exiting the car, returning Jones’s

identification papers before doing the same for Daniel, and, most

importantly, repeating to Jones the same questions that were asked

of him before. After the computer checks were finished, any delay

that occurred with respect to the warning citation being meted out

was due to the officers’ action or inaction. The basis for the

stop was essent ially completed when the dispatcher notified the

officers about the defendants’ clean records, three minutes before

the officers so ught consent to search the vehicle. Accordingly,

the officers should have ended th e detention and allowed the

defendants to leave. And the failure to release the defendants

violated the Fourth Amendment. The district court erred by not so

holding.

C. There Was No Reasonable Suspicion

In response to the defendants’ contention that the seizure was

prolonged and unreasonable, the government argues that the officers

had reasonable suspicion to justify the continued detention of the

defendants. An officer may temporarily detain a person for

investigative purposes if the officer has a reasona ble suspicion

supported by articulable facts that criminal activity may be afoot.

United States v. Sokolow

, 490 U.S. 1, 7 (1989). The suspicion

required to justify such a detention need not rise to the level of

probable cause but must be based on more than an unparticularized

suspicion or hunch. I d. In determining whether reasonable14

suspicion existed to justify the defendants’ continued detention,

we must look at the totality of the circumstances and consider the

collective knowledge and experience of the officers involv e d.

United States v. Holloway

, 962 F.2d 451, 459 & n.22 (5th Cir.

1992).

Here, Russell raised three bases for his reasonable suspicion.

First, he pointed to the defendants’ allegedly inconsistent answers

with respect to questions surrounding the defendants’ place of

employment. Second, Russell testified that the defendants gave

contradictory responses about the precise job that Daniel had.

Third, Russell stated that he also became suspicious from Daniel’s

acknowledgment that he had previously been arrested on a crack

cocaine charge.

In Dortch

, we found no reasonable suspi cion of drug

trafficking despite the confusion as to the relationship of the

defendant to the proper renter of the vehicle, the defendant’s

absence as an authorized driver on the rental agreement, the

allegedly inconsistent answer about th e defendant’s stay in

Houston, and the supposed nervousness of the defendant. Compared

to the facts in Dortch

, Russell’s bases for reasonable suspicion in

this case are even less suggestive of reasonable suspicion and are

at best t rivial. Jones explained to Russell the discrepancy

between Sage Stone and Street Institute, the two names dropped by

Jones and Daniel, respectively, as their place of employment.15

Jones specifically stated that Street Institute had folded, that

Sage Stone ha d picked up Street Institute’s records, and that

Russell could examine a CD in the trunk that would show the two

entities together. And contrary to Russell’s testimony that

D aniel’s and Jones’s statements about Sage Stone and Street

Institute aroused his suspicions, the videotape and t ranscript

reflect that Russell understood the situation between the two

r ecord companies and was not overtly troubled by any alleged

discrepancy. Indeed, Russell decided against examining the CD that

Jones offered to show him. As for the allegedly inconsistent

statements about Daniel’s job, they do not amount to reasonable

suspicion about drug trafficking. Daniel stated that he did some

promotional work and managing. But when asked about Daniel’s work

with the record company, Jones replied that Daniel only did

promotional work and no managing. Nonetheless, whether Jones said

that Daniel did not mana ge is immaterial and does not raise any

suspicions. Jones’s statement merely shows that he does not know

everything about Daniel ’s work other than promoting. Finally,

Daniel did acknowledge having been arrested, but arrest alone does

not amount to reasonable suspicion. S ee

, e.g.

, Dortch

, 199 F.3d at

196, 199 (finding no reasonable suspicion notwithstanding

defendant’s criminal record); United States v. Lee , 73 F.3d 1034,

1040 (10th Cir. 1996). Consequently, we hold that there was no

reasonable suspicion of drug trafficking, or any other crime, to16

further detain the defendants.

D. The Consent Did Not Dissipate The Fourth Amendment Violation

The government contends t hat even if the detention had been

prolonged and unreasonable, Daniel’s subsequent consent remedied

any Fourth Amendment violation. Although the officers’ detention

of the defendants exceeded the scope of a permissible Terry stop,

a subsequent “‘[c]onsent to search may, but does not necessarily,

dissipate the taint of a [prior] fourth amendment violation.’”

Dortch

, 199 F.3d at 201 (quoting United States v. Chavez-Villareal

,

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

When we ev aluate consent given after a Fourth Amendment

violation, the admissibility of the challenged evidence turns on a

two-pronged inquiry: 1) whether the consent was voluntarily given;

and 2) whether th e consent was an independent act of free will.

Chavez-Villareal

, 3 F.3d at 127. “The first prong focuses on

coercion, the second on causal connection with the constitutional

violation.” Id.

We examine whether consent was voluntarily given under a sixfactor test. S

habazz

, 993 F.2d at 438. Those factors are: 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 co operation with the police; 4) the defendant’s

awareness o f his right to refuse consent; 5) the defendant’s

education and intelligence; and 6) the defendant’s belief that no17

incriminatin g evidence will be found. I d. No single factor is

dispositive. I d. “The government has the burden of proving, by a

preponderance of the evidence, that the consent was voluntary.”

Id

.

Here, the district court applied the six-factor test and

concluded that Daniel’s consent was volun tary. Daniel, however,

argues that the consent was not voluntary because he was

essentially under arrest. For support, he notes that he was in the

patrol car, that the windows and doors of the car were closed, that

he was separated from Jones, and that his driver’s license and

rental agreement were retained by the officers. The government

counters that the doors of the patrol car were initially open and

that the officers asked Daniel to close them only after the

dispatcher could not hear the information being relayed by the

officers because of the street noise. Furthermore, the government

maintains that Russell did not ask for consent in an aggressive or

coercive manner, that Daniel appeared reasonably intell igent and

capable of understanding the requ est to search the vehicle, that

Daniel had cooperated with the officers throughout the stop, and

that the drugs were in an inconspicuous location, suggesting that

Daniel may have believed that the narcotics would not be found.

We realize that the patrol car’s doors were initially open,

but at the time Russell asked Daniel for consent, t he doors were

closed and Dan iel was essentially locked inside the patrol car.18

Moreover, one could infer coercion from the officers’ retention of

Daniel’s driver’s license and rental agreement. On the other hand,

a s the government correctly argues, many of the other fact ors

militate in favor of a finding of voluntar iness. We need not

belabor the point, however, as it is clear that the government

failed to prove that the consent wa s 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. S ee ChavezVillareal , 3 F.3d at 128; Dortch , 199 F.3d at 202 (citing ChavezVillareal ).

To determine whether the consen t was an independent act of

free will and, thus, broke the causal chain between the consent and

the illegal detention, we must 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. I d. In D ortch

, we found against the

government and concluded that a close tem poral proximity existed

between the illegal conduct and the consent because the detention

of the defendant continued until the officers had sought the

defendant’s consent to search his person a third time. I d.

Likewise, in the present case, there was a close temporal proximity

between the illegal detention and D aniel’s consent because the

detention that became prolonged and unreasonable after the computer19

checks were completed continued up to the time of Daniel’s consent.

Second, “no circumstances intervened between the detention and the

consent, and there is no reason to think that [Daniel] believed he

was free to go during that time.” Id. Indeed, in Dortch , we did

not believe the defendant could leave the scene of the stop,

notwithstanding the offic ers’ statement that the defendant could

leave without the car. I d. Similarly, in C havez-Villareal

, we

held that instead of being an intervening circumstanc e, the fact

that the border patrol agent had retained the defendan t’s alien

registration card when he asked for consent merely reinforced the

agent’s authority and, hence, the illegal stop that occurred less

than fifteen minutes before. C havez-Villareal

, 3 F.3d at 128.

Although the agent told the defendant that he could refuse to

consent to the search, we believed that the refusal seemed

pointless by that time. I d. Considering our prior holdings, we

can hardly say that Daniel had any more belief that he could go

free when the officers never told him that he cou ld leave but

instead retained his driver’s license, th e warning citation, and

the rental agreement and had him essentially locked up in the back

of the patrol car. As for the third factor, the detention may not

have been flagrant , but it is clear that the purpose of the

detention was to obtain consent to search vehicles for narcotics.

The officers were on a drug interdiction patrol in the Amarillo

area. Additionally, the officers appeared to knowingly prolong the20

detention because they purposefully cho se to give Jones, not

Daniel, his identification documents firs t despite the fact that

they could readily have given Daniel his documents back first, as

he was in the car with the officers when the computer checks came

back clean.

In sum, even if the district court validly concluded that

Daniel had voluntarily consented to the search, we believe that the

consent was not valid because the causal chain between the illegal

detention and Daniel’s consent was not broken. Hence, the search

was nonconsensual. See, e.g., Dortch , 199 F.3d at 202.

E. Fruit Of The Poisonous Tree

Under the fruit-of-the-poisonous-tree doctrine, “all evidence

derived from the exploitation of an illegal search or seizure must

be suppressed, unless the 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 Fourth Amendment violation.” U nited

States v. Rivas

, 157 F.3d 364, 368 (5th Cir. 1998). The government

does not offer anything to show that there was a break in the chain

of events. Because we find that the prolonged detention violated

the Fourth Amendment and that Daniel’s consent did not cure the3 In ligh t of our ruling, we need not address Jones’s other

contentions that there was insufficient evidence to convict him of

the three counts and that the district court erred in overruling

his motions for judgment of acquittal.

21 violation, the narcotics and the taped conversati on must be

suppressed and the convictions and sentences vacated. 3

III. CONCLUSION

For the foregoing reasons, we vacate Jones’ s and Daniel’s

convictions and sentenc es and remand the cases for trial without

the illegally seized drugs and taped conversation.-22-

EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting

in part:

I write to express disagreement with the two basic premises of

the majority opinion: that there was no reasonable articulable

suspicion after the dispatcher completed the computer c hecks on

Jones and Daniel, and that Daniel’s consent to the search of the

trunk of the car was invalid.

The majority opinion holds that the initially proper roadside

detention of Jones and Daniel should have ended when the dispatcher

returned negative checks on their criminal histories and driver’s

license verifications. Once these computer checks were completed,

the majority reasons, the purposes of the investigatory stop were

fulfilled and the officers were constitutionally required to permit

Jones and Daniel to leave because the officers lacked a reasonable

articulable suspicion that criminal activity was afoot. I concur

insofar as this is the resu lt required by our opinion in U nited

States v. Dortch

, 199 F.3d 193 (5th Cir. 1999). In D ortch

, we held

that a proper investigatory stop of a rental car occupied by a

driver and passenger not listed on the rental agreement became

unconstitutional when the detention continued beyond the

dispatcher’s return of negative background checks. S ee Dortch

, 199

F.3d at 199. We reasoned that the officers did not maintain a

reasonable articulable suspicion of participation in drug

trafficking after this point, explaining that “[e]ssentially the-23-

government asks us to find that officers have reasonable suspicion

to suspect drug trafficking anytime someone is driving a rental car

that was not rented in his name. We reason, to the contrary, that

the law enforcement purposes to be served by the computer check

were only to ensure that there were no outstanding warrants and

that the vehicle had not been stolen.” Dortch , 199 F.3d at 199.

I am unpersuaded by the logic of Dortch

, however, and to this

extent agree with the reasoning of the Dortch dissen t. The fact

that the Dortch defendants, as well as the defendants in the

instant case, wer e driving a car they were not authorized by the

rental agreement to drive is a factor that should be permitted in

a calculation of reasonable articulable suspicion of crimina l

wrongdoing. S ee D ortch , 199 F.3d at 204 (“The majority cites no

authority for its conclusion that circumstances such as none of a

rented vehicle’s occupants being either an authorized driver of it

or having any documented relation to the vehicle or the party

renting it, do not give rise to reasonable suspicion of contraband

trafficking.”) (Garwood, J. dissenting); United States v. $14,000

in United States Currency

, 211 F.3d 1270, 2000 WL 222587, **3 (6th

Cir. 2000) (unpublished) (officers possessed a reasonable

articulable suspicion where car occupants gave conflicting stories

as to their destination, drove a rental car with high mileage and

an ex pired rental agreement, one occupant was anxious and overly

talkative, and one occupant had a recent crimin al conviction for4 I further disagree with the majority’s analysis of the remaining

factors that co ntributed to the officers’ suspicion of Jones and

Dani el: (1) the defendants’ inconsistent answers with respect to

questions surrounding their place of employment, (2) the

defendants’ inconsistent answers about Daniel’s job, (3) Daniel’s

acknowledgment that he had previously been arrested on a crack

cocaine charge. The majority analyzes the suspiciousness of each

of these factors, again in comparison to Dortch

, and concludes that

the detention beyond the point of the computer check was

unsupported by a reasonable suspicion. It is, however, the

totality of the factors that must be considered, and as stated by

-24- drug possession).

According to the Tenth Circuit , in a case that preceded

Dortch

, “an officer may detain a driver until assured that the

driver’s license is valid and the driver is legitimately operating

the vehicle.” See United States v. Jones , 44 F.3d 860, 871 (10th

Cir. 1995). In Jones

, the court held that the officer never

r eceived such assurances, and that the officer’s reaso nable

suspicion of criminal activity arose concurrent with the legitimate

investigative detention. In the case of defendants Jones and

Daniel, it is true that dispatch confirmed the validity of the

drivers ’ licenses and confirmed that neither had criminal

backgrounds. But such a check cannot confirm the relationship of

the drivers to the rental car. To the extent that the officers

were suspicious because the car was rented, and then because the

occupants were not the renters, the Dortch rule requiring

suspension of the investigation when negative computer checks are

returned is illogical. I therefore concur in the majority opinion

because it is consistent with the Dortch rule; 4 I disagree,the Fourth Circuit, “[t]he articulated factors together must serve

to eliminate a substantial portion of innocent travelers before the

requirement of reasona ble suspicion will be satisfied.” U nited

States v. Brugal

, 209 F.3d 353, 359 (4th Cir. 2000) (en banc). The

three factors relied upon by the officers here would seem fit that

criterion )) indeed, such was the finding of the district court. S ee

United States v. Nichols

, 142 F.3d 857, 864-65 (5th Cir. 1998)

(determinations of law, such as whethe r reasonable suspicion

existed, are reviewed de novo, while findings of fact are reviewed

for clear error). Given the majority’s apt description of the

facts of this case in comparison to those of Dortch

, I again cannot

say that they are distinguishable, and to this extent agree with

the majority conclusion regarding reasonable articulable suspicion.

5 Daniel argues that the standing issue was waived by the

government when it failed to object to the findings of the

magistrate report. S ee Douglass v. United States Auto Ass’n

, 79

F.3d 1415, 1428-29 (5th Cir . 1996). Daniel’s argument, however,

overlooks the f act that the government prevailed before the

magistrate, and thus lacked the motivation to object to any of the

magistrate findings. The standing issue was raised by the

government on appeal, and is thus properly before us for review.

-25- however, with that rule.

I also disagree with the majority’s discussion of Daniel’s

consent to search the trunk of the car, and accordingly dissent

from that portion of the opinion. The majority holds that Daniel’s

consent was invalid because the government failed to prove that the

consent was an independent act of free will. Before reaching the

issue of the validity of the consent, however, we must first decide

the threshold question of whether Daniel, as a non-owner and nonrenter of the car, had a possessory interest in the car such that

his consent to search was requisite. 5 S ee Rakas v. Illinois

, 439

U.S. 128, 99 S.Ct. 421, 424 n. 1 (1978) (“[T]he proponent of a

motion to suppress has the burden of establishing that his own-26-

Fourth Amendment rights were violated by the challenged search or

seizure.”). This question was also presented in D ortch

. The

dissent there noted that there is some question as to what Fifth

Circuit precedent is on the proposition that an unauthorized driver

of a rental car lacks standing t o challenge the validity of a

search. S ee Dortch

, 199 F.3d at 204-06. The possible conflict

within our circuit is well-described in the Dortch dissent and need

not be repeated here; it is enough that Daniel has not met his

burden under Rakas of demonstrating a possessory interest in the

car, such that the majority opinion discussing the validity of his

consent is premature. I accordingly dissent.