UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-4563

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

TOMMY ZEKE MINCEY, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:05-cr-00252) 

Argued: September 23, 2008 Decided: November 24, 2008 

Before NIEMEYER, Circuit Judge, HAMILTON, Senior Circuit Judge, 

and T. S. ELLIS, III, Senior United States District Judge for 

the Eastern District of Virginia, sitting by designation. 

Affirmed by unpublished opinion. Senior Judge Ellis wrote the 

opinion, in which Judge Niemeyer and Senior Judge Hamilton 

joined. 

ARGUED: Kevin Andre Tate, FEDERAL DEFENDERS OF WESTERN NORTH 

CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy 

Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, 

North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, 

Executive Director, Emily Marroquin, FEDERAL DEFENDERS OF 

WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for 

Appellant. Gretchen C. F. Shappert, United States Attorney, 

Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. 

2 
ELLIS, Senior District Judge: 

 Appellant, Tommy Zeke Mincey (“Mincey”), appeals his 

conviction by a jury for possession with intent to distribute at 

least 100 grams of heroin, in violation of 21 U.S.C. §§ 

841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. At issue in this 

appeal are the following questions: 

(i) whether appellant, as an unauthorized driver of a 

rental vehicle, had a legitimate expectation of 

privacy in the rental vehicle, thus entitling him to 

contest a warrantless search of the vehicle on Fourth 

Amendment grounds, 

(ii) whether verbal consent of the rental company provided 

an independent basis for the warrantless search of the 

vehicle, 

(iii) whether the scope and duration of the vehicle stop 

satisfied Fourth Amendment constitutional standards, 

and 

(iv) whether the trial court abused its discretion in 

admitting into evidence alleged drug courier profile 

evidence. 

For the reasons that follow, we affirm. 

I. 

The trial record reflects that at approximately 1:33 p.m. 

on October 3, 2005, Sergeant Randy Cass with the Iredell County 

Sheriff’s Office stopped a 2000 Dodge four-door automobile with 

Georgia plates traveling south on Interstate 77 near 

Statesville, North Carolina. Sergeant Cass effected the stop 

because he observed the Dodge following the car ahead of it too 

3 
closely, a violation of North Carolina traffic law. Once both 

vehicles were stopped on the side of the road, Sergeant Cass 

exited his police vehicle, walked toward the passenger side of 

the stopped vehicle, activated his microphone, and then asked 

the vehicle’s driver and sole occupant -- Mincey -- for his 

driver’s license. Mincey produced a Michigan driver’s license 

in the name of Kenyatta Anthony James containing a photo that 

matched Mincey’s physical appearance. Sergeant Cass advised 

Mincey why he had been stopped and then asked for the vehicle’s 

registration. In response, Mincey produced a rental agreement 

from the Armada Rental Company, advising Sergeant Cass that the 

vehicle had been rented by his girlfriend in Georgia and that 

her name was on the rental agreement. 

While Mincey was locating the rental agreement, Sergeant 

Cass asked him where he was traveling to on that occasion. 

Mincey responded that he was driving back to Atlanta, Georgia 

from Newark, New Jersey, where he had been visiting a family 

member. Mincey further stated that he had recently moved from 

Michigan to Dunwoody, Georgia and he provided Sergeant Cass with 

his new Georgia address for use in Sergeant Cass’s issuance of a 

citation. During this initial exchange, Sergeant Cass observed 

a cell phone in the passenger seat of the rental vehicle, as 

well as two open containers of energy drinks in the front cup 

holders. He also recognized, based on his experience and 

4 
training, that Mincey’s reported travel destinations -- Newark 

and Atlanta -- were known “source cities” for illegal drugs. 

At approximately 1:38 p.m., Sergeant Cass returned to his 

police vehicle with the driver’s license and rental agreement 

that had been provided by Mincey, intending to verify the 

information provided to him and then to issue Mincey a warning 

citation for following the car ahead of him too closely. 

Although writing such a citation would typically take Sergeant 

Cass approximately five minutes, the stop required additional 

time in this instance because Sergeant Cass was unable to verify 

the validity of Mincey’s Michigan driver’s license through the 

law enforcement communications system, a standard step in the 

citation process. Specifically, Sergeant Cass first attempted 

to verify Mincey’s license using the listed driver’s license 

number, which the system revealed was not on file. Sergeant 

Cass then performed a search using the name on the driver’s 

license -- Kenyatta Anthony James. Again, the system disclosed 

no Michigan driver’s license in that name. Sergeant Cass also 

ran a search for the rental vehicle’s Georgia license plates and 

confirmed that they were indeed registered to the vehicle in 

question; this check also confirmed that the vehicle was owned 

by the Armada Rental Company. In the meantime, while performing 

these information checks, Sergeant Cass began writing the 

5 
warning citation using the driver’s license and residence 

information that Mincey had provided. 

At approximately 1:50 p.m., Sergeant Cass called the Armada 

Rental Company and spoke with a woman named Chris to explain the 

situation, namely that he had stopped one of the company’s 

rental vehicles on the highway for a traffic violation and that 

the driver and only occupant of the vehicle did not appear to be 

an authorized driver under the rental agreement. Sergeant Cass 

confirmed with Chris that Mincey was an unauthorized driver 

under the rental agreement, which Chris was able to review on 

the company’s computer system. Sergeant Cass then asked Chris 

for consent to search the vehicle. In response, Chris advised 

that she would need to speak with a manager and that someone 

from the rental agency would need to call him back. Sergeant 

Cass then gave Chris his cell phone number. 

At approximately 1:55 p.m., an additional officer -- 

Sergeant Elliott -- arrived at the scene.1 At this point, 

Sergeant Cass turned his microphone off in order to update 

Sergeant Elliott on his efforts to confirm the authenticity of 

the Michigan driver’s license as well as Mincey’s status as an 

unauthorized driver of the rental vehicle. At around this time, 

and while Sergeant Cass’s microphone was off, another woman from 

 1

 A third officer, Sergeant Byrd, arrived shortly 

thereafter. 

6 
the rental company, Kari Peabody, called Sergeant Cass on his 

cell phone. During the course of this conversation, Peabody 

instructed Sergeant Cass that the rental vehicle could not be 

released to Mincey, since he was an unauthorized driver under 

the rental agreement. (J.A. 79). Peabody further advised that 

the officers had permission to impound the vehicle or “to do 

whatever [they] needed to do.” (J.A. 128). Sergeant Cass also 

asked Peabody if he could search the vehicle. According to 

Sergeant Cass’s uncontradicted testimony, Peabody put the phone 

down briefly, apparently spoke with someone else at the rental 

company, then advised Sergeant Cass, “yes, go ahead.” (J.A. 

129).2 

At approximately 2:01 p.m., Sergeant Cass exited his police 

vehicle and walked back to the passenger side of the rental 

vehicle. He reactivated his microphone and asked Mincey to step 

outside of the rental vehicle so that he could explain the 

 2

 Sergeant Cass testified both during the suppression 

hearing and in the course of the trial that Peabody gave him 

verbal consent to search the rental vehicle. Peabody, in 

contrast, who testified only at the suppression hearing, stated 

only that she did not recall giving Sergeant Cass permission to 

search the car during the course of their telephone 

conversation. She also was not able to recall any specifics of 

what she told Sergeant Cass to do with the rental vehicle. In 

the circumstances, the district court found Sergeant Cass’s 

uncontradicted testimony to be credible and thus found that the 

rental company had verbally consented to the search of the 

vehicle. (J.A. 246-47). 

7 
situation to him. Sergeant Cass then returned the Michigan 

driver’s license to Mincey and handed him the warning citation, 

which Sergeant Cass had issued using the name on the Michigan 

driver’s license and the Georgia address Mincey had provided. 

Sergeant Cass then showed Mincey the rental agreement and told 

him that he had spoken on the telephone with the rental company. 

Specifically, Sergeant Cass advised Mincey that the vehicle 

could not be released to his possession because he was not an 

authorized driver under the rental agreement. In light of this, 

Sergeant Cass also offered to drive Mincey to the next exit on 

the highway. Sergeant Cass then told Mincey that he and the 

other officers were going to search the vehicle and asked Mincey 

for consent to pat him down for weapons. Mincey consented to 

the pat down, which revealed a cell phone in his pants pocket. 

At approximately 2:03 p.m., Sergeant Cass motioned for 

Sergeants Elliott and Byrd to assist him with the search of the 

vehicle. At this point, Mincey asked for permission to return 

to the vehicle to retrieve a cell phone to call his girlfriend, 

the authorized driver of the rental vehicle.3 Sergeant Cass 

 

(Continued) 

3

 Janelle Crosby, Mincey’s purported girlfriend and the 

authorized driver of the rental vehicle, testified in the course 

of the suppression hearing that she had rented the vehicle for 

Mincey because he did not have a credit card to secure the 

rental. She further testified that she gave Mincey permission 

to drive the vehicle. Yet, on the rental agreement, when asked 

to identify the name, age and driver’s license number for any 

8 
declined to permit Mincey to return to the vehicle, reminding 

Mincey that he already had a cell phone in his pocket. Sergeant 

Elliott then pulled the rental vehicle further off the road for 

safety purposes and the search began immediately thereafter. 

Several minutes into the search, at approximately 2:07 

p.m., Sergeant Cass pulled up the console around the vehicle’s 

gearshift, a common site for concealing contraband, and there 

discovered a plastic bag containing what appeared to him to be 

illegal drugs. The package had been vacuum-sealed and wrapped 

in fabric softener sheets and was later confirmed to contain 

approximately 140 grams of high purity heroin. The search of 

the interior of the vehicle also revealed (i) three cell phones, 

in addition to the one located in Mincey’s pocket, one of which 

was an untraceable “boost” phone, (ii) several cell phone 

chargers, and (iii) MapQuest driving directions from Atlanta, 

Georgia to Newark, New Jersey that had been printed on October 

1, 2005, two days prior to the traffic stop, listing an 

estimated driving time of nearly 14 hours. Also found in the 

 

additional individuals who would be driving the vehicle, Crosby 

wrote the word “None,” and signed her initials. (J.A. 41). The 

rental agreement expressly provided that the vehicle was not to 

be used “by any person not specified [in the agreement]” or “in 

violation of any law, ordinance or regulation.” Id.

9 
vehicle’s trunk were a pair of bolt cutters and a duffel bag 

containing clothes and toiletries. 

Immediately following discovery of the suspected 

contraband, Mincey was ordered to the ground and arrested. He 

was then transported to the narcotics office of the police 

department.4 During an initial post-arrest interview with 

Detective Lieutenant David Ramsey, Mincey continued to identify 

himself as Kenyatta Anthony James, claiming that the Michigan 

driver’s license was valid and contained his correct name and 

date of birth. Yet, when further questioned, he twice gave 

Detective Ramsey an age inconsistent with the date of birth 

listed on the driver’s license. 

Later, in the course of subsequent questioning by Sergeant 

Elliott, Mincey finally identified himself, for the first time, 

as Tommy Mincey; he also reported a birth date different from 

the date appearing on the Michigan driver’s license.5 Then, in a 

 4

 Following Mincey’s arrest, Sergeant Cass contacted another 

officer, who then arrived at the scene and drove the rental 

vehicle to the police station. Thereafter, at approximately 

2:38 p.m., Sergeant Cass spoke with a store manager from the 

rental company and advised him that the rental vehicle was ready 

and available for pickup at the station. 

5

 Law enforcement officers eventually confirmed that the 

Michigan driver’s license Mincey presented in the course of the 

traffic stop was fraudulent. 

10 
voluntary statement to Sergeant Elliott,6 Mincey provided an 

explanation for his lengthy travel between Atlanta to Newark and 

denied any knowledge of the heroin found inside the rental 

vehicle. In this regard, Mincey stated that on October 2, 2005, 

he met a Puerto Rican male named “Charles” at the 112 Strip Club 

in Atlanta. Charles allegedly asked Mincey if he wanted to make 

some money, and Mincey responded that he did. Mincey then met 

with Charles across the street from the 112 Strip Club at a bus 

station, where they allegedly negotiated a price of $5,000 for 

Mincey to drive Charles from Atlanta to New Jersey. Mincey 

claimed no further details were discussed about the trip at that 

time. 

According to Mincey, he and Charles left Atlanta in the 

rental vehicle at approximately 12:00 p.m. on October 2, 2005. 

Mincey and Charles each drove half the drive to New Jersey and 

they ultimately arrived at the Cinderella Strip Club in Newark 

at approximately 1:00 a.m. on October 3, 2005. They entered the 

club and were inside for approximately 30 minutes, when Charles 

asked Mincey for the keys to the vehicle. Charles then went 

 6

 Prior to accepting this voluntary statement, Sergeant 

Elliott read Mincey his Miranda rights, in the presence of 

Sergeant Cass, and Mincey then knowingly and voluntarily waived 

those rights in a written waiver form. (J.A. 481). See Miranda 

v. Arizona, 384 U.S. 436 (1966). Mincey does not dispute the 

voluntariness of either his statement or the waiver of his 

Miranda rights in this instance. 

11 
outside with the keys and Mincey remained inside the club. 

Later, when the club closed, Mincey went outside and observed 

Charles inside a black Mercedes Benz. Charles then told Mincey 

to drive the rental vehicle back to Atlanta by himself and that 

he would “settle up” with Mincey on Tuesday at the 112 Strip 

Club in Atlanta. (J.A. 490). According to Mincey, no further 

details were discussed. Mincey thus began the drive back to 

Atlanta at approximately 4:30 a.m. on October 3, 2005, and later 

that day he was stopped by Sergeant Cass in North Carolina. 

Mincey claimed he did not know how the heroin got inside the 

rental vehicle and that he never had any discussions with 

Charles about illegal drugs. Yet, he did admit to Sergeant 

Elliott that the four cell phones found on his person and in the 

rental vehicle on October 3, 2005, all belonged to him. 

On October 25, 2005, Mincey was charged in a one-count 

indictment with possession with intent to distribute at least 

100 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 

(b)(1)(A) and 18 U.S.C. § 2. Mincey filed a motion to suppress 

the evidence resulting from the October 3, 2005 search of the 

rental vehicle, arguing that the extended vehicle stop and 

warrantless search violated his Fourth Amendment rights in 

various respects. On June 6, 2006, following two days of 

testimony, the district court denied Mincey’s motion to 

suppress, concluding (i) that the initial traffic stop was valid 

12 
in that it resulted from a violation of North Carolina traffic 

laws, (ii) that the length and scope of the investigatory 

detention was reasonable in the circumstances, (iii) that Mincey 

did not have standing to contest the warrantless search as an 

unauthorized driver of the rental vehicle, and (iv) that the 

rental company consented to the search in any event. (J.A. 

246). 

On July 12, 2006, following a two-day jury trial, Mincey 

was convicted as charged, with one count of possession with 

intent to distribute at least 100 grams of heroin. Mincey was 

subsequently sentenced on this offense to 150 months 

imprisonment, to be followed by 8 years of supervised release, 

with a final Judgment being entered on June 1, 2007. Mincey 

then filed a timely notice of appeal raising essentially four 

issues, each of which is addressed here. 

II. 

Mincey’s first three arguments on appeal concern the 

district court’s denial of his motion to suppress. On appeal, 

we review legal conclusions underlying the denial of a motion to 

suppress de novo, and factual findings for clear error. United 

States v. Moreland, 437 F.3d 424, 429 (4th Cir. 2006) (citing 

United States v. Johnson, 114 F.3d 435, 439 (4th Cir. 1997)). 

In this context, “[w]e construe the evidence in the light most 

13 
favorable to the Government, the prevailing party below.” 

United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998) 

(citations omitted). 

A. 

Mincey first argues that the district court erred in 

holding that he, as an unauthorized driver under the rental 

contract, did not have standing to contest the warrantless 

search of the rental vehicle.7 As to this issue, it is well 

settled that only where a search intrudes upon a space as to 

which an individual has “a legitimate expectation of privacy” 

may the individual contest the search on Fourth Amendment 

grounds. United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 

1994) (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978)). 

And, the question whether an expectation of privacy is 

“legitimate” requires a two-prong test, namely (i) whether the 

individual had a subjective expectation of privacy in the area 

searched, and (ii) whether that subjective expectation of 

privacy is objectively reasonable based on “concepts of real or 

personal property law” or “understandings that are recognized 

 7

 Although courts continue to use the generic term 

“standing” in this context, it is clear that the proper legal 

inquiry is whether the individual at issue had a “legitimate 

expectation of privacy” in the area searched, as discussed 

infra. United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 

1994) (citation omitted). 

14 
and permitted by society.” Rakas, 439 U.S. at 143, n.12. 

Although common law concepts of real and personal property are 

not dispositive of this issue, it is important to note that “one 

who owns or lawfully possesses or controls property will in all 

likelihood have a legitimate expectation of privacy by virtue of 

this right to exclude.” Id. 

Here, Mincey’s subjective expectation of privacy in the 

rental vehicle is not in dispute. Rather, the only question 

presented is whether his subjective expectation of privacy was 

objectively reasonable, thus rendering it “legitimate” and 

entitled to Fourth Amendment protection. As to this issue, our 

previous decision in Wellons is squarely on point. There, we 

held definitively that an unauthorized driver of a rental 

vehicle has no legitimate privacy interest in the vehicle and 

therefore cannot contest a warrantless search of the vehicle on 

Fourth Amendment grounds. See Wellons, 32 F.3d at 119 

(citations omitted). We further held in Wellons that this 

conclusion was not altered where, as here, the authorized lessee 

allows the unauthorized driver to drive the rental vehicle, as 

an unauthorized driver still does not have permission of the 

rental company, the owner of the vehicle. Id. at 119 n.2. 

Mincey readily acknowledges application of Wellons to the 

facts presented here, but nonetheless urges us to reconsider 

Wellons in light of the analyses adopted by several other 

15 
circuits with respect to the unauthorized rental driver issue. 

Yet, a review of the applicable case law reveals no persuasive 

reason to overturn or alter the Wellons holding in this 

instance. 

In this regard, the Fifth, Tenth and Eleventh Circuits 

appear to be in accord with this circuit in holding that an 

unauthorized driver of a rental vehicle does not have a 

legitimate privacy interest in that vehicle for purposes of the 

Fourth Amendment, regardless of whether the unauthorized driver 

has the authorized renter’s permission to drive the vehicle. 

See United States v. Riazco, 91 F.3d 752 (5th Cir. 1996); United 

States v. Roper, 918 F.2d 885 (10th Cir. 1990); United States v. 

Boruff, 909 F.2d 111 (5th Cir. 1990);8 United States v. Obregon, 

748 F.2d 1371 (10th Cir. 1984); United States v. McCulley, 673 

F.2d 346 (11th Cir. 1982). The Eighth and Ninth Circuits take a 

 8

 Mincey cites the Fifth Circuit’s decision in United 

States v. Kye Soo Lee, 898 F.2d 1034 (5th Cir. 1990), as 

reaching a different result. Interestingly, Boruff and Lee were 

decided in the same year, although Boruff is the later published 

opinion. The Fifth Circuit has subsequently noted the apparent 

conflict between Boruff and Lee, making clear that the holding 

in Boruff is the general rule followed in the Fifth Circuit. 

See United States v. Seeley, 331 F.3d 471, 472 n.1 (5th Cir. 

2003). In any event, Lee is at least distinguishable in its 

reasoning in that it does not even address the fact that the 

hired rental truck drivers in that case were not listed as 

authorized drivers on the subject rental agreement, analogizing 

the case instead to one where an individual borrows a personal 

vehicle from another with the other’s consent. 

16 
different approach, holding generally that an unauthorized 

driver of a rental vehicle may have a legitimate expectation of 

privacy in the vehicle for Fourth Amendment purposes if he is 

able to establish that the authorized renter/driver gave him 

permission to drive the vehicle, as involved here. See United 

States v. Muhammad, 58 F.3d 353 (8th Cir. 1995); United States 

v. Best, 135 F.3d 1223 (8th Cir. 1998); United States v. Thomas, 

447 F.3d 1191 (9th Cir. 2006).9 And finally, the Sixth Circuit 

has adopted a totality of the circumstances analysis on the 

issue, holding that permission of the lessee to drive a rental 

vehicle is but one of many factors to be considered in 

determining whether an unauthorized driver has a legitimate 

privacy interest in a rental vehicle. United States v. Smith, 

263 F.3d 571 (6th Cir. 2001). 

 9

 Although not necessary to the result reached here, it 

should nonetheless be noted that this line of cases is factually 

distinguishable from the case at bar. Indeed, even assuming 

Mincey had the permission of the authorized renter to drive the 

rental vehicle in this instance, any such permission clearly 

terminated once the rental company affirmatively advised 

Sergeant Cass that Mincey, as an unauthorized driver under the 

rental contract, was not entitled to possess the vehicle and 

that the vehicle was not to be released to Mincey at the scene 

of the traffic stop. In other words, at that moment, any 

permission that had previously been extended to Mincey by the 

authorized driver of the rental vehicle was effectively 

extinguished by the rental company, the actual owner of the 

vehicle and issuer of the subject rental contract. 

17 
While recognizing the varying approaches adopted elsewhere, 

Mincey’s argument is appropriately rejected in this instance in 

light of Wellons.10 Nor are we persuaded to depart from our 

prior precedent in any respect. Put simply, Mincey, as an 

unauthorized driver under the Armada rental contract, had no 

legitimate expectation of privacy in the rental vehicle and 

cannot contest the warrantless search of the vehicle on Fourth 

Amendment grounds. This is especially so where, as here, the 

rental company, on learning of the vehicle’s unauthorized use, 

instructs that the vehicle is not to be released to the 

unauthorized driver. 

B. 

 Mincey next argues that the district court erred in denying 

his motion to suppress on the alternative basis of consent for 

the search having been given by the rental company, arguing 

specifically that any consent by the agency did not provide an 

independent justification for the warrantless search when the 

vehicle had already been rented to a third party. In the 

circumstances, given that Mincey had no legitimate expectation 

of privacy in the rental vehicle at the time of the warrantless 

 10 We have previously reaffirmed our holding in Wellons in 

several unpublished decisions. See United States v. Rollack, 

173 F.3d 853 (Table), 1999 WL 104806 (4th Cir. Mar. 1, 1999); 

United States v. Hannah, 168 F.3d 483 (Table), 1998 WL 911709 

(4th Cir. Dec. 31, 1998). 

18 
search, it is unnecessary to reach or decide the issue of 

consent in this instance. 

C. 

Mincey next contends that the district court erred in 

denying his motion to suppress based on the length and scope of 

the traffic stop and the accompanying investigatory detention. 

In this regard, Mincey contends that he was detained and 

questioned by Sergeant Cass beyond the scope of the initial 

traffic stop without sufficient basis or a reasonable suspicion 

that he was involved in criminal activity, thus violating his 

Fourth Amendment rights. See Reid v. Georgia, 448 U.S. 438, 440 

(1980). 

Mincey is correct that “[a] seizure that is justified 

solely by the interest in issuing a warning ticket to the driver 

can become unlawful if it is prolonged beyond the time 

reasonably required to complete that mission.” Illinois v. 

Caballes, 543 U.S. 405, 407 (2005). It is also clear that in 

order to detain a driver for investigative purposes beyond the 

issuance of a traffic citation or warning, an officer must 

possess “a reasonable and articulable suspicion that the person 

seized is engaged in criminal activity.” Reid, 448 U.S. at 440 

19 
(citations omitted).11 In evaluating whether an investigative 

detention is supported by reasonable suspicion in this regard, a 

reviewing court must consider the totality of the circumstances 

known to the investigating officer, including the “specific 

reasonable inferences which he is entitled to draw from the 

facts in light of his experience.” Terry v. Ohio, 392 U.S. 1, 

27 (1968). 

Here, it is unnecessary to reach the reasonable suspicion 

analysis, as the scope and duration of the vehicle stop were 

justified by the time and actions necessary for Sergeant Cass to 

verify the information contained in the driver’s license and 

rental agreement provided to him by Mincey, a required step in 

the issuance of a valid citation. Indeed, the record reflects 

that no more than 35 minutes elapsed from the time Mincey was 

initially stopped until his ultimate arrest; this time included 

the search of the rental vehicle. A review of the law 

enforcement video and microphone recordings of the vehicle stop 

also confirms the reasonableness of the time and actions 

necessary for Sergeant Cass to verify Mincey’s identity and 

 11 For purposes of the “reasonable suspicion” analysis, 

“the likelihood of criminal activity need not rise to the level 

required for probable cause, and it falls considerably short of 

satisfying a preponderance of the evidence standard....” United 

States v. Arvizu, 534 U.S. 266, 274 (2002) (citation omitted). 

20 
unauthorized driver status in this instance.12 In the 

circumstances, therefore, the scope and duration of the vehicle 

stop did not violate Mincey’s Fourth Amendment rights and the 

district court did not err in denying Mincey’s motion to 

suppress on this ground.13

III. 

Mincey’s fourth and final argument on appeal is that the 

district court abused its discretion when it allowed alleged 

drug courier profile testimony to be admitted as evidence in the 

course of the jury trial. In this respect, we note that 

evidentiary rulings are generally reviewed for abuse of 

discretion. United States v. Queen, 132 F.3d 991, 995 (4th Cir. 

 12 As noted above, such actions included Sergeant Cass’s 

unsuccessful efforts to verify Mincey’s Michigan driver’s 

license through the law enforcement communications system, first 

by number and then by name. Further time was consumed by 

Sergeant Cass’s reasonable telephone communications with several 

representatives from the rental company (i) to confirm that 

Mincey was an unauthorized driver of the subject rental vehicle 

and (ii) to obtain the rental company’s instructions with 

respect to the vehicle, including, inter alia, their consent to 

a warrantless search. 

13 Because we find that the duration of the traffic stop 

was reasonable, we do not need to reach the further issue of 

whether Sergeant Cass had “a reasonable and articulable 

suspicion” that appellant was engaged in criminal activity. 

Reid, 448 U.S. at 440. We note, however, that the facts 

presented here are sufficient to support such a finding, 

particularly with respect to Mincey’s fraudulent use of a 

driver’s license. Id.

21 
1997) (citation omitted). Thus, a trial court’s determination 

to admit evidence should not be disturbed on appeal unless the 

trial court has acted “arbitrarily or irrationally.” United 

States v. Jones, 913 F.2d 174, 177 (4th Cir. 1990) (citing 

United States v. Masters, 622 F.3d 83, 87-88 (4th Cir. 1980)). 

We have previously held that it is “clearly impermissible” 

for the government to attempt “to establish the defendant’s 

guilt by showing that he has the same characteristics as a drug 

courier.” Jones, 913 F.2d at 177. Put differently, “the use of 

expert testimony as substantive evidence showing that the 

defendant ‘fits the profiles and, therefore, must have intended 

to distribute the . . . [drugs] in his possession’ is error.” 

Id. (quoting United States v. Quigley, 890 F.2d 1019 (8th Cir. 

1989), cert. denied, 493 U.S. 1091 (1990)). We nonetheless 

recognized in Jones that drug courier profile evidence may still 

be used in appropriate circumstances, including, for example, 

“as purely background material to explain why the defendant was 

stopped...[or] to rebut testimony provided by a defendant who 

claims that he is not a typical drug courier.” Jones, 913 F.2d 

at 177 (citing United States v. Sokolow, 490 U.S. 1 (1989),

United States v. Beltran-Rios, 878 F.2d 1208 (9th Cir. 1989)). 

Here, the alleged improper drug courier profile evidence 

pertained to Mincey’s possession of four cell phones at the time 

of his arrest. Specifically, Mincey objects to the district 

22 
court’s admission of Sergeant Cass’s testimony -- presented in 

the course of government counsel’s re-direct examination -- that 

drug couriers typically carry multiple cell phones, particularly 

boost phones, to guarantee that they will have sufficient 

cellular coverage to stay in contact with the person for whom 

they are transporting drugs.14

While the disputed testimony may arguably be viewed as drug 

courier profile evidence, the record reflects that the testimony 

was elicited by government counsel in this instance as rebuttal 

evidence, consistent with our previous holding in Jones. 913 

F.2d at 177. Indeed, in the course of cross-examination, 

Mincey’s counsel asked Sergeant Cass, “Now, with respect to 

those cell phones, there’s nothing illegal about having a cell 

phone, is there?”, to which Sergeant Cass simply responded, “No, 

sir.” (J.A. 373). A review of the trial transcript makes clear 

that the alleged drug courier profile evidence at issue was 

 14 In this regard, Sergeant Cass testified that 

[a] drug courier is going to have to keep in contact 

with the person that they’re hauling drugs for. They 

will give them multiple phones to where they can 

guarantee they’re going to have coverage. Anyone 

that’s got a cell phone will know there’s some places 

your phone won’t pick up so they’ll give them a 

different type of phone. 

(J.A. 379-80). Sergeant Cass further testified that “boost 

phones have been prevalent” in many of the stops and seizures 

made by his office. (J.A. 380). 

23 
thereafter elicited by government counsel during its re-direct 

examination as a means to rebut Sergeant Cass’s testimony 

regarding the legality of possessing multiple cell phones.15 See

Jones, 913 F.2d at 177 (recognizing that drug courier profile 

evidence may be used “to rebut testimony provided by a defendant 

who claims that he is not a typical drug courier”). 

In an attempt to avoid this result, Mincey argues that the 

single question posed to Sergeant Cass by Mincey’s counsel on 

cross-examination regarding the legality of possessing multiple 

cell phones was necessary given the government’s “protracted 

references [in the course of direct examination] to Mincey’s 

possession of multiple cell phones as being indicia of his 

knowledge that drugs were in the rental vehicle.” (Appellant 

 15 Indeed, the contested testimony was prefaced by the 

following exchange between government counsel and Sergeant Cass: 

Q. Do you remember something to the effect [that] 

there’s nothing illegal about having multiple cell 

phones? 

A. Yes, sir. 

Q. Based on your training and experience, is there a 

reason for somebody involved in drug activity . . . to 

have multiple cell phones? 

A. Yes, sir. 

Q. And based on your training and experience, what 

is the purpose of having multiple cell phones? 

(J.A. 379). 

24 
Reply Br. 9). Yet, this argument is unpersuasive; a review of 

the trial transcript makes clear that Sergeant Cass’s testimony 

on direct examination pertaining to Mincey’s four cell phones 

amounted to nothing more than an identification and general 

description of the various items discovered in the course of the 

vehicle search conducted in this case. Significantly, no drug 

courier profile evidence was elicited during the course of 

Sergeant Cass’s testimony on direct examination. Thus, contrary 

to Mincey’s contentions, the government, in its direct 

examination of Sergeant Cass, did not attempt “to establish the 

defendant’s guilt by showing that he has the same 

characteristics as a drug courier.” Jones, 913 F.2d at 177. 

In the circumstances, given that Mincey’s counsel opened 

the door to the contested testimony in the course of his crossexamination of Sergeant Cass, the alleged drug courier profile 

evidence elicited by the government in the course of its redirect examination of Sergeant Cass is appropriately viewed as 

rebuttal evidence consistent with our holding in Jones. Id. 

The district court, therefore, neither abused its discretion nor 

acted “arbitrarily or irrationally” in admitting this testimony 

in the course of Mincey’s trial. Jones, 913 F.2d at 177 

(citation omitted). 

25 
26 

IV. 

 For the foregoing reasons, we affirm the judgment of the 

district court. 

AFFIRMED