PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 10-5008

MANTEL DELANCE MUBDI,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge.

(5:08-cr-00051-RLV-DCK-1)

Argued: January 24, 2012

Decided: August 10, 2012

Before SHEDD, DAVIS, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion,

in which Judge Shedd joined. Judge Davis wrote a separate

opinion concurring in part and in the judgment. 

COUNSEL

ARGUED: Matthew Segal, Assistant Federal Defender,

FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy

Elizabeth Ray, Assistant United States Attorney, OFFICE OF

Certiorari granted, June 24, 2013 

Vacated by Supreme Court, June 24, 2013
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, FEDERAL DEFENDERS OF WESTERN

NORTH CAROLINA, INC., Kevin A. Tate, Assistant Federal

Defender, Charlotte, North Carolina, for Appellant. Anne M.

Tompkins, United States Attorney, Melissa L. Rikard, Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

OPINION

DIAZ, Circuit Judge:

Mantel Delance Mubdi entered a conditional guilty plea to

drug and firearms offenses, reserving the right to challenge

the district court’s denial of his motion to suppress evidence

seized during a traffic stop. The district court sentenced him

to 300 months’ imprisonment. On appeal, Mubdi contends

that the district court erred in denying his motion to suppress

because the officers who stopped his car did not have probable cause to execute the stop. As an alternative ground for

suppression, he contends that the officers unlawfully prolonged the traffic stop to conduct an open-air canine sniff of

his car. Mubdi also argues that the district court erred in

increasing his statutory mandatory minimum sentence for the

drug offenses based on improper judicial factfinding. Finding

no error, we affirm.

I.

A.

On the morning of September 30, 2008, Mubdi was driving

a gray Dodge Magnum northbound on Interstate 77 near

Statesville, North Carolina. In the car with Mubdi was

2 UNITED STATES v. MUBDI
Markus Parham. Two Statesville Police Department Officers,

Jason York and Phillip Wolfe, were parked in marked police

cruisers perpendicular to the highway about ten yards from

the right-hand side of the northbound lanes near exit 50.1 As

Mubdi approached the officers, they each visually determined

that he was driving above the posted speed limit of fifty-five

miles per hour. 

York observed a group of cars in front of Mubdi’s car traveling the speed limit, and he noticed that Mubdi was closing

in on the group. He tracked Mubdi’s car for about a hundred

yards to estimate its speed at sixty-three or sixty-four miles

per hour. Wolfe likewise noticed Mubdi’s car gaining on the

cars in front of it and pulling away from the cars behind it; he

estimated Mubdi’s speed at sixty-five miles per hour. Because

of the angle at which the officers were parked, they were

unable to verify their estimates with radar equipment. However, York and Wolfe had both passed a radar certification

class that, among other things, provided training on how to

visually estimate the speed of vehicles within a narrow margin of error. 

The radar certification course constitutes a minimum of

thirty-two hours of training, which includes sixteen hours of

"supervised field practice where [officers] learn how to estimate the speed of vehicles and how to operate the radar units

properly and to check off and set up the instrument and test

for accuracy." J.A. 106. Estimating speed is a mandatory part

of the certification process. Officers are trained to estimate

speeds both from a stationary position and while in motion.

An officer may err on any given estimate (or, indeed, all of

them) and still receive certification, provided that he errs in

the aggregate no more than forty-two miles per hour over

1York, a nine-year veteran of the Statesville Police Department, is a

canine officer in the Department’s criminal interdiction unit. Wolfe, a tenyear veteran of the Department, also works in the criminal interdiction

unit. 

UNITED STATES v. MUBDI 3
twelve separate speed estimates (an average margin of error

of three and a half miles). 

York and Wolfe pursued Mubdi for a few miles as he

merged from Interstate 77 onto Interstate 40 heading west.2

Wolfe passed Mubdi’s car in the left lane in an attempt to see

whether its occupants were wearing seatbelts. Mubdi then

merged behind Wolfe to pass a truck in the right lane. York,

trailing Wolfe and Mubdi, determined that Mubdi was following Wolfe’s patrol car at a distance of no more than two to

three car lengths, contrary to the North Carolina Highway

Patrol’s recommendation that motorists keep at least a one car

length interval per ten miles per hour of speed.3

At that point, York activated his blue lights to initiate a

traffic stop. After what struck York as "an extended amount

of time," id. 163, Mubdi pulled over to the side of the road.

York approached the car and asked for Mubdi’s driver’s

license and registration. He observed that Mubdi kept his foot

on the brake pedal, instead of shifting the transmission to park

and releasing the brake. Mubdi handed York a plastic pouch

containing his license and a vehicle rental contract. York saw

that Mubdi’s "hands were shaking more so than an average

person would be shaking for just a routine traffic stop" and

2The district court viewed a video recording of the events as captured

by York’s dashboard camera. 

3The North Carolina statute proscribing motorists from following too

closely mandates that a "driver of a motor vehicle shall not follow another

vehicle more closely than is reasonable and prudent, having due regard for

the speed of such vehicles and the traffic upon and the condition of the

highway." N.C. Gen. Stat. § 20-152. Notably, the statute is silent as to

what constitutes a "reasonable and prudent" distance. York testified that

such a distance should be measured either by the Highway Patrol’s recommendation or by the "two second rule" set out in the handbook of the Division of Motor Vehicles for North Carolina drivers. The rule prescribes that

a driver "should allow two seconds between the time the vehicle ahead of

[the driver] passes a given point and the time [the driver’s] vehicle reaches

that same point." J.A. 160. According to York, Mubdi did not comply with

either standard. 

4 UNITED STATES v. MUBDI
that Mubdi looked scared. Id. 165-66. York asked Mubdi

whether he had rented the car, and Mubdi said that he had. In

response to York’s questions regarding the purpose of

Mubdi’s travel, Mubdi said he was headed to his grandfather’s funeral in Statesville and to his aunt’s house. Mubdi,

however, could not tell York his aunt’s name or where she

lived.

York returned to his patrol car to review Mubdi’s license,

insurance, and rental contract, and to issue Mubdi a warning

ticket for speeding and following too closely. The rental contract showed that the car had in fact been rented to Latonyia

Brathwaite, other drivers were explicitly forbidden from driving it, and the car was not permitted to travel outside of Georgia. All told, it took York approximately fifteen minutes to

review Mubdi’s paperwork and to issue the warning ticket, a

time frame he described as typical. In the interim, Wolfe,

along with his drug-sniffing canine, arrived on the scene.

After York completed the warning ticket for speeding and

following too closely, he approached Mubdi’s car to issue the

citation. He asked Mubdi to roll up the windows, turn off the

engine, and step out of the car. Mubdi complied but did not

shift the transmission into park. As a result, the car began rolling away before Parham, still seated in the passenger seat,

stopped it. York explained the warning ticket and then told

Mubdi that Wolfe’s dog would conduct an open-air sniff

around the car.

Captain Jacob Dyson, who arrived on the scene for backup,

approached the passenger’s side of the car, knocked on the

window, and asked Parham to get out. Parham just looked at

him, so Dyson tried the door handle. Parham then rolled down

his window, and, when Dyson again asked him to get out of

the car, Parham responded, "What for? I don’t have a gun."

Id. 113. When Parham started to reach between his legs to the

floorboard, Dyson feared that he was reaching for a firearm

and unsnapped his holster. Parham, however, got out of the

UNITED STATES v. MUBDI 5
car without incident, and both he and Mubdi consented to a

pat-down for weapons. Shortly thereafter, Wolfe’s dog conducted the open-air sniff and alerted. A search of the car

uncovered crack and powder cocaine, as well as two loaded

firearms, one under each front seat.

B.

A grand jury returned a superseding indictment charging

Mubdi with conspiracy to distribute and to possess with intent

to distribute a quantity of cocaine and at least fifty grams of

cocaine base, in violation of 21 U.S.C. § 846, possession with

intent to distribute a quantity of cocaine and at least fifty

grams of cocaine base, in violation of 21 U.S.C. § 841(a),

(b)(1)(A), (b)(1)(C), possession of firearms in furtherance of

drug trafficking crimes, in violation of 18 U.S.C. § 924(c),

and possession of firearms by a convicted felon, in violation

of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e).

Mubdi moved to suppress the drugs and firearms on the

grounds that the officers lacked probable cause to make a traffic stop, lacked reasonable suspicion to prolong the stop to

conduct the canine open-air sniff, and conducted an illegal

warrantless search of the car.4 The district court denied

Mubdi’s motion. First, the court found that the officers had

probable cause to make the traffic stop because Mubdi was

speeding and following too closely. As to the first ground, the

court concluded that York and Wolfe were trained in visually

estimating vehicle speed and that their testimony regarding

Mubdi’s rate of speed was credible. After crediting the officers’ testimony and reviewing the video recording of Mubdi

changing lanes, the district court further found that the officers had probable cause to stop Mubdi for following too

closely.

4Mubdi does not press this third ground on appeal. 

6 UNITED STATES v. MUBDI
The court also determined that the duration of the stop was

reasonable, particularly given the objective facts that piqued

the officers’ growing suspicions. Finally, the court found that

the ensuing search of the car was proper on two independent

grounds: (1) Mubdi and Parham did not have a reasonable

expectation of privacy in the car in that neither of them was

an authorized driver on the rental contract, and (2) the officers

were justified in searching the car based on the canine alert

and Mubdi’s and Parham’s behavior.5

Mubdi entered a conditional guilty plea to all charges,

reserving the right to appeal the denial of his suppression

motion. At the sentencing hearing, the district court adopted

the Presentence Investigation Report setting Mubdi’s offense

level at thirty and his criminal history category at IV. Mubdi’s

Guidelines sentence was 240 months on the drug charges, due

to the government’s filing of a notice of its intent to seek an

enhanced punishment under 21 U.S.C. § 851. The district

court imposed this sentence and a term of 120 months on the

possession of a firearm by a felon charge, to run concurrently.

Additionally, the district court imposed a mandatory consecutive sixty-month sentence on the § 924(c) charge, yielding a

total term of 300 months’ incarceration. Mubdi timely

appealed.

5Mubdi challenges both grounds on appeal. With respect to his purported privacy interest as a driver of the rental car, he argues that his case

is distinguishable from United States v. Wellons, 32 F.3d 117, 119 (4th

Cir. 1994), in which we held that an unauthorized driver of a rental car

lacks a reasonable expectation of privacy in the car, notwithstanding that

he may have the authorized driver’s permission. In Wellons, the evidence

sought to be suppressed was the fruit of an unlawful search. Id. Mubdi

contends, however, that the evidence he seeks to suppress is the fruit of

an unreasonably long seizure. Mubdi presses that, to the extent that Wellons controls this case, we should revisit its holding and reach a contrary

conclusion. Because we agree with the district court that the canine alert

and Mubdi’s and Parham’s behavior alone justified the search, we need

not address this separate argument. 

UNITED STATES v. MUBDI 7
II.

In considering the district court’s denial of a motion to suppress, we "review the district court’s legal determinations de

novo and its factual determinations for clear error." United

States v. Kelly, 592 F.3d 586, 589 (4th Cir. 2010). When the

district court has denied a suppression motion, we must "construe the evidence in the light most favorable to the government." Id. We are also to "particularly defer to a district

court’s credibility determinations, for it is the role of the district court to observe witnesses and weigh their credibility

during a pre-trial motion to suppress." United States v. Abu

Ali, 528 F.3d 210, 232 (4th Cir. 2008) (quotation omitted).

A.

Mubdi argues that the officers lacked probable cause to

believe he was speeding or following too closely. The relevant law on this issue is well settled. Although a traffic stop

may be brief and for a limited purpose, it constitutes a "seizure" under the Fourth Amendment and must "not be ‘unreasonable’ under the circumstances." Whren v. United States,

517 U.S. 806, 809-10 (1996). Generally speaking, "the decision to stop an automobile is reasonable where the police have

probable cause to believe that a traffic violation has

occurred." Id. at 810; see also United States v. Branch, 537

F.3d 328, 335 (4th Cir. 2008) ("Observing a traffic violation

provides sufficient justification for a police officer to detain

the offending vehicle . . . ."). Probable cause exists if, given

the totality of the circumstances, the officer "had reasonably

trustworthy information . . . sufficient to warrant a prudent

[person] in believing that the petitioner had committed or was

committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964).

1.

Mubdi first argues that there was no probable cause to stop

him for speeding, notwithstanding that Officers York and

8 UNITED STATES v. MUBDI
Wolfe independently estimated that he was driving eight to

ten miles above the posted speed limit.

We have intimated, albeit in an unpublished opinion, that

an officer’s visual observation of a driver speeding may alone

be sufficient to establish probable cause. See United States v.

Daras, 164 F.3d 626, 1998 WL 726748, at *2 (4th Cir. 1998)

(per curiam) (unpublished table decision) ("[T]he Government correctly points out that the officer’s visual estimate is

also sufficient, by itself, to support a conviction."); see also

United States v. Wornom, 754 F. Supp. 517, 519 (W.D. Va.

1991) (affirming a magistrate judge’s conviction of a defendant for speeding based solely on an officer’s visual speed

estimate after radar evidence was suppressed).

But we also recently concluded that "the Fourth Amendment does not allow, and the case law does not support, blanket approval for the proposition that an officer’s visual speed

estimate, in and of itself, will always suffice as a basis for

probable cause to initiate a traffic stop." United States v. Sowards, No. 10-4133, slip op. at 14 (4th Cir. June 26, 2012). In

Sowards, this same district court denied a motion to suppress

evidence seized following a traffic stop of the defendant’s

vehicle, finding that the officer’s visual speed estimate (of

seventy-five miles per hour in a seventy mile per hour zone)

alone established probable cause to initiate the stop. Id. at 7-

8.

We reversed, finding that it was clear error for the district

court to discount as immaterial the officer’s obvious difficulty

with measurements as it pertained to his ability to estimate the

defendant’s speed. Id. at 13. Among other patent errors, the

officer in that case testified that there are twelve feet in a

yard, twelve inches on a yardstick, and the number of inches

on a yardstick depends on the yardstick. Id. at 12. The officer

nonetheless insisted his estimate was accurate in that he had

tracked the vehicle for 100 yards. Because the record showed

that the officer was, to put it mildly, measurement-challenged,

UNITED STATES v. MUBDI 9
we lacked confidence in his visual estimate, particularly given

the modest five mile per hour differential between the posted

speed limit and the defendant’s alleged speed. Id. at 19.

The Sowards majority noted that our starting point in such

cases is to determine "whether a vehicle’s speed is estimated

to be in significant excess or slight excess of the legal speed

limit." Id. at 14. For significant excesses of the legal speed

limit, "the speed differential—i.e., the percentage difference

between the estimated speed and the legal speed limit—may

itself provide sufficient ‘indicia of reliability’ to support an

officer’s probable cause." Id. at 15 (emphasis added). On the

other hand, 

where an officer estimates that a vehicle is travelling

in only slight excess of the legal speed limit, and

particularly where the alleged violation is at a speed

differential difficult for the naked eye to discern, an

officer’s visual speed estimate requires additional

indicia of reliability to support probable cause.

Id. at 16. While "[s]uch additional indicia of reliability," the

opinion expounded, "need not require great exactions of time

and mathematical skill that an officer may not have, . . . they

do require some factual circumstance that supports a reasonable belief that a traffic violation has occurred." Id. at 18.

Sowards further suggested that certain techniques, such as

"radar [or] pacing methods," id. at 17, might suffice to corroborate an officer’s visual estimate in cases of slight excesses of

the legal speed limit. The majority opinion nevertheless

emphasizes, though, that the touchstone of the probable cause

inquiry is—as always—reasonableness, and the analysis

remains whether the "totality of the circumstances" establishes "the reasonableness of the officer’s visual speed estimate." Id. at 17.6

6Chief Judge Traxler wrote a vigorous and well-reasoned dissent in

Sowards, contending that the majority incorrectly imposed an iron-clad

10 UNITED STATES v. MUBDI
Here, even assuming that Mubdi was only slightly exceeding the legal speed limit, the record supports the reasonableness of the officers’ visual speed estimates, and thus the

decision to conduct the stop. Unlike in Sowards, we have

before us two independent and virtually identical estimates as

to Mubdi’s speed by officers who were required, as part of a

radar certification class, to visually estimate the speed of vehicles within a narrow margin of error.7

 In our view, this tandem evidence alone provides sufficient corroboration to

support a finding of probable cause, particularly where the

record—again unlike the one in Sowards—does not cast a

shred of doubt on the officers’ ability to estimate speed or on

the accuracy of their visual estimates. 

In sum, we discern no clear error in the district court’s conclusion that Mubdi was speeding, based on its separate factual

findings that York and Wolfe were trained in estimating vehicle speed and that their testimony regarding Mubdi’s rate of

rule prohibiting in every instance a probable cause finding based solely on

visual speed estimates where a vehicle is traveling only in "slight excess"

of the speed limit. Sowards, slip op. at 26 (Traxler, J., dissenting). In our

view, however, the majority’s opinion is not quite so inflexible, and it certainly does not purport to reject a district court’s consideration of the totality of the circumstances in making its probable cause determination. Id. at

17. We are satisfied that the totality of the circumstances present here supports the district court’s ruling. 

7The fact that an officer may err on any given speed estimate and still

obtain certification, as discussed above, is not dispositive to our inquiry

here. The government’s probable cause burden requires no more than a

reasonable ground to believe that an offense has been committed, a standard far less exacting than that imposed on the government to prove guilt

beyond a reasonable doubt. Indeed, we recently emphasized that

"‘[f]inely-tuned standards such as proof beyond a reasonable doubt or by

a preponderance of the evidence, useful in formal trials, have no place in

a [probable cause] decision because probable cause is only the probability,

and not a prima facie showing, of criminal activity.’" United States v.

Ortiz, 669 F.3d 439, 445 (4th Cir. 2012) (quoting Illinois v. Gates, 462

U.S. 213, 235 (1983)). 

UNITED STATES v. MUBDI 11
speed was credible. Reviewing the probable cause determination de novo, we agree with the district court that the traffic

stop was supported by the officers’ reasonable belief that

Mubdi was speeding.

2.

Mubdi also challenges the district court’s separate finding

that his following too closely behind Wolfe’s patrol car justified the traffic stop. Mubdi rightly notes that the North Carolina statute proscribing motorists from following too closely,

N.C. Gen. Stat. § 20-152, is inapplicable when a motorist is

overtaking another. He contends that, because he was overtaking a slower-moving truck in front of him in the right lane

when he merged behind Wolfe, his conduct was permissible.

As such, Mubdi argues that the officers made a mistake of law

by believing that he violated the statute. Tying up this argument, Mubdi asserts that the officers’ decision to stop him for

following too closely was improper because "a mistake of law

cannot provide reasonable suspicion or probable cause to justify a traffic stop." Appellant’s Reply Br. 4 (quoting United

States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir.

2003) (concluding that "an officer’s reasonable mistake of

fact may provide the objective grounds for reasonable suspicion or probable cause required to justify a traffic stop, but an

officer’s mistake of law may not")). 

Mubdi’s argument here fails for two reasons. First, the evidence is at best conflicting as to whether Mubdi merged in the

left lane behind Wolfe’s patrol car to overtake a slowermoving vehicle, a necessary precondition for his conduct to

be permissible under the statute. On this point, Mubdi simply

averred that "there was a truck in front of [him] and to get

around it, [he] merged behind the officer that was on the

side." J.A. 269. On the other hand, York testified that "the

Dodge Magnum ma[d]e a left behind [Wolfe] in a very close

distance[, and] the truck [was] . . . at least ten car lengths in

front of [Mubdi]." Id. 162. Additionally, Wolfe stated that he

12 UNITED STATES v. MUBDI
"wouldn’t say that [Mubdi] was getting ready to hit the truck

or anything. They had plenty of time—they had more time to

travel behind the vehicle before anything unsafe was to happen." Id. 250. In fact, the traffic stop video, submitted as an

exhibit to the motion, appears to bear out the officers’ testimony.

Viewing the evidence in the light most favorable to the

government, as we must when a motion to suppress has been

denied, Kelly, 592 F.3d at 589, Mubdi falls far short of showing that his conduct was permissible under section 20-152 in

the first place.

But even assuming that the officers were mistaken as to the

distance between Mubdi and the truck in front of him in the

right lane, and thus whether Mubdi merged into the left lane

to overtake the truck, such a mistake is patently a mistake of

fact. Nothing in the record suggests that the officers were

unaware that section 20-152 exempts drivers from the prohibition on following too closely while they are overtaking a

slower-moving vehicle.

Thus, to the extent that the officers honestly—although perhaps mistakenly—believed that Mubdi was violating section

20-152 by following Wolfe too closely while not overtaking

a vehicle, this mistake is at most a reasonable one under the

circumstances, which does not undermine the district court’s

conclusion that the officers had probable cause to execute the

stop in the first instance. See Chanthasouxat, 342 F.3d at

1276 ("[I]f an officer makes a traffic stop based on a mistake

of fact, the only question is whether his mistake of fact was

reasonable."). 

Reviewing the probable cause determination de novo as it

pertains to Mubdi’s following too closely, we agree with the

district court that the traffic stop was justified on this basis as

well.

UNITED STATES v. MUBDI 13
B.

We next analyze whether the officers’ subsequent actions

were " ‘reasonably related in scope to the circumstances that

justified the [stop].’ " See United States v. Rusher, 966 F.2d

868, 875 (4th Cir. 1992) (quoting Terry v. Ohio, 392 U.S. 1,

20 (1968)). Traffic stops must be limited in both scope and

duration. See Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion). With respect to scope, "the investigative methods employed should be the least intrusive means reasonably

available to verify or dispel the officer’s suspicion in a short

period of time." Id. As for duration, the police must "diligently pursue[ ] a means of investigation that [is] likely to

confirm or dispel their suspicions quickly." United States v.

Sharpe, 470 U.S. 675, 686 (1985); see also Illinois v. Caballes, 543 U.S. 405, 407 (2005) (noting that a traffic stop may

become "unlawful if it is prolonged beyond the time reasonably required to complete [its] mission"); Royer, 460 U.S. at

500 (noting that the scope of a seizure "must be carefully tailored to its underlying justification," and that the government

bears the burden to "demonstrate that the seizure it seeks to

justify . . . was sufficiently limited in scope and duration to

satisfy the conditions of an investigative seizure").

In the context of traffic stops, police diligence encompasses

requesting a driver’s license and vehicle registration, running

a computer check, and issuing a ticket. United States v. Foreman, 369 F.3d 776, 781 (4th Cir. 2004); see also Branch, 537

F.3d at 337 ("If a police officer observes a traffic violation,

he is justified in stopping the vehicle for long enough to issue

the driver a citation and determine that the driver is entitled

to operate his vehicle."). If a police officer seeks to prolong

a traffic stop to allow for investigation into a matter outside

the scope of the initial stop, he must possess reasonable suspicion or receive the driver’s consent. Branch, 537 F.3d at 336.

Additionally, "if the driver obstructs the police officer’s

efforts in any way—for example, by providing inaccurate

14 UNITED STATES v. MUBDI
information—a longer traffic stop would not be unreasonable." Id.

Addressing Mubdi’s argument that the officers unlawfully

prolonged the stop, the district court concluded as follows:

The duration of the seizure was reasonable for the

purpose of performing a routine traffic stop, particularly in light of the fact that it involved a determination of a rental contract which was submitted by the

driver, Mr. Mubdi. The time of the detention for the

purpose of the traffic stop was reasonable under the

circumstances and the totality thereof. And it was

further testified [sic] by the growing reasonable suspicion of the officers. So even taken as a gross

amount of time, it’s still reasonable.

J.A. 338-39.

On appeal, Mubdi asserts that the officers lacked reasonable suspicion to detain him after York issued the warning

ticket, which resulted in the warrantless search of his car that

uncovered the drugs and firearms. We disagree.

First, the district court correctly concluded that the officers’

actions were no more intrusive than necessary and that they

diligently pursued a means of investigation to confirm or dispel their suspicions. In Branch, we held that a traffic violation

authorizes "a police officer to detain the offending vehicle for

as long as it takes to perform the traditional incidents of a routine traffic stop," such as "request[ing] a driver’s license and

vehicle registration, run[ning] a computer check, and issu[ing]

a citation." 537 F.3d at 335 (quotation omitted). The record

reveals that York did not stray from this holding, as he asked

Mubdi only "ordinary inquiries incident to a routine traffic

stop," id. at 338 (quotation omitted), and undertook his invesUNITED STATES v. MUBDI 15
tigation expeditiously, completing the warning citation within

fifteen minutes.8

The district court also correctly determined that the following suspicious behavior supported York’s decision to extend

the investigation: (1) Mubdi took an excessive amount of time

to pull over; (2) he was exceedingly nervous; (3) he kept his

foot on the car brake instead of shifting the transmission into

park; (4) he could not provide details as to his destination or

the family member he intended to visit; (5) he did not rent the

car, contrary to what he told York; (6) he was not authorized

to drive the rental car; and (7) the car was beyond the bounds

authorized by the rental contract.

Although some of these facts, viewed in isolation, might be

consistent with innocent travel, the Supreme Court has recognized that such factors can, when taken together, give rise to

reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 9

(1989) ("Any one of these factors is not by itself proof of any

illegal conduct and is quite consistent with innocent travel.

But we think taken together they amount to reasonable suspicion."). Here, we have no trouble concluding that the circumstances supported York’s decision to extend the stop to

conduct the open-air canine sniff, which in turn alerted the

officers to the presence of contraband in the car.

We have emphasized that reasonable suspicion "is not readily, or even usefully, reduced to a neat set of legal rules, but,

rather, entails common sense, nontechnical conceptions that

deal with factual and practical considerations of everyday

life." United States v. Mason, 628 F.3d 123, 128 (4th Cir.

2010) (quoting Foreman, 369 F.3d at 781). As a reviewing

court, we "consider the totality of the circumstances and give

due weight to common sense judgments reached by officers

8Wolfe arrived at the scene of the stop with his drug-sniffing dog while

York was issuing the warning citation, and thus the stop was not extended

because of any delay in the arrival of a canine unit. 

16 UNITED STATES v. MUBDI
in light of their experience and training." Id. (quotation omitted). On this record, we decline to disturb the district court’s

order denying Mubdi’s motion to suppress.

III.

Lastly, Mubdi argues that the district court violated his

Fifth and Sixth Amendment rights by increasing his statutory

mandatory minimum sentence for the drug offenses based on

improper judicial factfinding. Specifically, Mubdi contends

that the district court’s finding that he was responsible for

290.5 grams of crack cocaine violated his Fifth and Sixth

Amendment rights to have any fact that triggers an enhanced

mandatory minimum sentence charged in the indictment, submitted to a jury, and proved beyond a reasonable doubt. Without this finding, Mubdi argues that his guilty plea to crimes

involving at least fifty grams of crack cocaine would have

yielded only a ten-year mandatory minimum sentence. However, Mubdi acknowledges that Supreme Court precedent

forecloses this argument. See Harris v. United States, 536

U.S. 545, 568 (2002) (holding that increasing minimum sentence based on judicial factfinding "does not evade the

requirements of the Fifth and Sixth Amendments").

Accordingly, we affirm the district court’s imposition of a

240-month sentence for Mubdi’s drug convictions, which,

when combined with the sixty-month consecutive sentence

applied on the § 924(c) charge, properly yielded a 300-month

term of incarceration.

IV.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

UNITED STATES v. MUBDI 17
DAVIS, Circuit Judge, concurring in part and in the judgment:

Judicial narratives that begin with a traffic stop are

notable for their depressing sameness. Because of

the nature of our judicial system, these narratives are

typically inscribed in criminal prosecutions. Usually

only those on whom contraband is found are charged

with crimes, and those charged with crimes have the

strongest incentive to challenge the stop that led to

the discovery of contraband. Absent unusual events,

courts tend to uphold such searches, finding them

supported by probable cause.

There is no poetry in these narratives. They read

like the documentation of an audit. The police go

about their business. Courts double-check them. In

most cases, the court finds the law enforcement officers in compliance. In the process of all that process,

we forget that–at least in criminal cases–someone’s

freedom is on the line.

Nancy Leong, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream, 64 Fla.

L. Rev. 305, 328 (2012) (footnotes omitted) (hereafter, "Open

Road").

In Delaware v. Prouse, 440 U.S. 648 (1979), the Supreme

Court, applying the doctrine of Terry v. Ohio, 392 U.S. 1

(1968), definitively rejected, as inconsistent with the protections afforded by the Fourth Amendment, a claim to unfettered discretion to stop and detain motorists on the part of law

enforcement officers seeking to uncover violations of the law:

[W]e hold that except in those situations in which

there is at least articulable and reasonable suspicion

that a motorist is unlicensed or that an automobile is

not registered, or that either the vehicle or an occu18 UNITED STATES v. MUBDI
pant is otherwise subject to seizure for violation of

law, stopping an automobile and detaining the driver

in order to check his driver’s license and the registration of the automobile are unreasonable under the

Fourth Amendment. This holding does not preclude

the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained

exercise of discretion.

Id. at 663. Justice Rehnquist, dissenting, discerned "[no] sufficient basis to distinguish for Fourth Amendment purposes

between a roadblock stopping all cars and the random stop"

at issue in the case before the Court. Id. at 667. He scoffed at

the majority’s determined effort to protect individual liberty,

accusing the majority of "elevat[ing] the adage ‘misery loves

company’ to a novel role in Fourth Amendment jurisprudence." Id. at 664. 

Seventeen years later, a unanimous Supreme Court effectively vitiated the protections afforded by Prouse. In Whren

v. United States, 517 U.S. 806 (1996), the Court held that so

long as an officer can offer a plausible account that he had

probable cause a motorist committed a traffic infraction,

whether the motorist could be stopped and detained was a

matter entirely within the discretion of the officer.1 Despite

the potential for selective and discriminatory "traffic enforcement," the officer’s "subjective intentions" in making the stop

play no role in Fourth Amendment analysis. In particular, as

the Court put it: 

We of course agree with petitioners that the Constitution prohibits selective enforcement of the law

based on considerations such as race. But the constitutional basis for objecting to intentionally discrimi1This circuit anticipated Whren’s holding in United States v. Hassan El,

5 F.3d 726, 729–31 (4th Cir. 1993), cert. denied, 511 U.S. 1006 (1994).

UNITED STATES v. MUBDI 19
natory application of laws is the Equal Protection

Clause, not the Fourth Amendment. Subjective

intentions play no role in ordinary, probable-cause

Fourth Amendment analysis.

Id. at 813. See generally Wayne R. LaFave, The "Routine

Traffic Stop" from Start to Finish: Too Much "Routine," Not

Enough Fourth Amendment, 102 Mich. L. Rev. 1843 (2004).

Over the ensuing sixteen years, judges,2 legal scholars,

social scientists, and many others have spilled much ink (and

the country has witnessed considerable political discourse)

exploring the ramifications of the Court’s about-face. Specifically, we have wrestled with the inevitable role that

constitutionally-permissible "pretextual" traffic stops play in

what the Court referred to as "ordinary, probable-cause Fourth

Amendment analysis," Whren, 517 U.S. at 813, in light of the

growth of racial profiling.3 Professor Leong has crafted a

cogent summary of the evolved legal regime:

2

See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318, 372 (2001)

(O’Connor, J., dissenting) ("[A]s the recent debate over racial profiling

demonstrates all too clearly, a relatively minor traffic infraction may often

serve as an excuse for stopping and harassing an individual." (citing

Whren, 517 U.S. at 813)). 

3At an earlier time, some law enforcement officers freely employed the

term "pretextual stop" although, with increased sensitivity over racial profiling, the term seems to have fallen from favor. See United States v. Foreman, 369 F.3d 776, 786-87 (4th Cir. 2004) (Gregory, J., concurring in part

and dissenting in part): 

Trooper Wade testified that he began to follow Foreman to

"see if I could find a violation," id. at 30 (emphasis added), and

admitted "[i]n an attempt to find a violation on [Foreman’s] vehicle . . . I was going to conduct a pretextual stop, stop him for a

traffic violation, conduct a brief interview of him, see if I

observed any indicators of other criminal activity . . . . " Id. at 60

(emphasis added). Because Trooper Wade paced Foreman’s vehicle at a speed of sixty-four miles per hour over a one-half mile

stretch of road where the speed limit was fifty-five, and observed

"items hanging from the inside rearview mirror," he activated his

emergency lights to make the stop, which Trooper Wade admitted was pretextual. See R. vol. 4 at 2. 

20 UNITED STATES v. MUBDI
Whatever all this means in the abstract world of

legal principles, the practical effect with respect to

traffic stops is that when the police think a driver has

committed any traffic violation, no matter how

minor or how fleeting, they can pull him over. Thus,

a driver might be pulled over for failing to signal for

an appropriate length of time or for changing lanes

too close to an intersection–things most of us routinely do on our daily commutes. The police can also

pull over a driver when they lack enough evidence

to establish probable cause of a violation if, under

Terry, they have reasonable suspicion that criminal

activity is afoot.

These standards allow police officers to exercise

an enormous amount of discretion in performing

traffic stops. Under current doctrine, the legal justification for stopping a car need not be the same as the

real reason the police officer wants to stop the car,

so long as a reasonable officer would have had probable cause to believe that a traffic infraction in fact

took place. [Professor] Paul Butler [now of the

Georgetown University Law Center] describes riding

in a police cruiser with a police officer friend and

playing a game his friend invented called "Stop that

Car!" in which Butler "pick[s] a car–any car–and

[the officer] stops it." Butler explains that his friend

"is a good cop" because "[h]e waits until he has a

legal reason to stop the car. It doesn’t take long,

never more than three or four blocks of following.

There are so many potential traffic infractions that it

is impossible to drive without committing one." The

reality, then, is that the police are free to pick a car

they wish to stop, follow it until the driver inevitably

violates one of the vehicle code’s myriad obscure

provisions, and subsequently pull it over.

The Supreme Court has repeatedly interpreted the

Constitution to permit this schism. Thus, even an

UNITED STATES v. MUBDI 21
officer with no actual purpose other than to harass

and annoy may–according to the Supreme Court–use

a traffic stop as an entirely constitutional starting

point for such actions, as long as an objectively reasonable evaluation would conclude that the officer

had probable cause to believe that a traffic violation

occurred at the time she made the stop.

From this starting point of an "objectively reasonable" stop supported by probable cause or reasonable

suspicion, the judicial narrative then follows a wellworn script. Courts typically examine whether the

circumstances justified the traffic stop, and–even

more typically–answer that question in the affirmative. This is so even when the events of the traffic

stop stray beyond its ostensible justification. The

Court has explained: "An officer’s inquiries into

matters unrelated to the justification for the traffic

stop . . . do not convert the encounter into something

other than a lawful seizure, so long as those inquiries

do not measurably extend the duration of the stop."

Open Road at 326-27 (footnotes omitted).4

4For a sampling of some of the more recent literature in this genre, see

Thomas B. McAffee, Setting Us Up For Disaster: The Supreme Court’s

Decision in Terry v. Ohio, 12 Nev. L.J. 609, 614-15 (2012) ("The further

we go along, the clearer it becomes that there is widespread ‘racialized

policing,’ what we have labeled as ‘racial profiling,’ and that its pervasive

presence is so important in part because it is measurable . . . . The wide

use of racial profiling is reinforced by Terry’s holding as well as by the

way the suspicion standard has been expansively applied over time.")

(footnotes omitted); Eric J. Miller, Detective Fiction: Race, Authority and

the Fourth Amendment, 44 Ariz. St. L.J. 213, 220 (2012) (observing that

"the Court is aware (through both dissenting opinions and some hints in

recent majority opinions) that its jurisprudence is driven by the War on

Drugs, and that the style of policing it endorses to fight that war is dragnet

and racialized, and that the success rate for this style of policing is low")

(footnotes omitted); Mary D. Fan, The Police Gamesmanship Dilemma in

22 UNITED STATES v. MUBDI
Of course, the four-decades-and-counting "War on Drugs"

has given a special context and meaning to the Whren doctrine and its implications for racial profiling. Beyond their

undoubtedly sincere desire to do their jobs and to do them

well and safely, local law enforcement officers and their

employing agencies, such as the Statesville police department

involved in this case, have serious skin in the drug interdiction game, no matter the ultimate destination of the contraband. See, e.g., Ricardo J. Bascuas, Fourth Amendment

Lessons from the Highway and the Subway: A Principled

Approach to Suspicionless Searches, 38 Rutgers L.J. 719,

761-62 (2007) (discussing profits made by police from drug

interdiction programs). It was not for nothing that officers

York and Wolfe, each with a drug canine in his vehicle,

started their shifts before nine in the morning sitting perpendicular to I-77 watching traffic, deciding which of the many

vehicles passing them by they would follow and stop, abjuring the use of the speed radar devices.5

 Likewise, it was not

Criminal Procedure, 44 U.C. Davis L. Rev. 1407, 1463 (2011) ("In the

decade since Whren, therefore, the problem of profiling has persisted

while Whren stands as a controversial landmark of noninquiry and ‘a

license to make racial distinctions.’ Whren is a lightning rod for controversy because the Court took a don’t ask, don’t tell approach allowing

police to do whatever it takes—without examining the accuracy of police

beliefs about what it takes, basing deference on noninquiry rules rather

than data.") (footnotes omitted); see also Bernard E. Harcourt, Rethinking

Racial Profiling: A Critique of the Economics, Civil Liberties, and Constitutional Literature, and of Criminal Profiling More Generally, 71 U. Chi.

L. Rev. 1275 (2004). 

5

Insisting that the Statesville police were engaged in "criminal interdiction" and not merely "drug interdiction" at the time of the stop in this case,

the officers’ supervisor, Captain Dyson, testified at the suppression hearing that York and Wolfe were "looking for criminals" who might be driving north on I-77 that morning. J.A. 126. The cross-examination of Dyson

included the following: 

Q. So how do you determine whether a motorist is a criminal

or not? 

UNITED STATES v. MUBDI 23
for nothing that, as shown on the video taken by the dashboard camera in York’s vehicle, the officers in this case

expressed unmitigated glee, punctuated by serial "fist-bumps"

all around, when the cache of more than two hundred grams

of crack cocaine was removed from the Dodge Magnum. 

All that said, this court has done (and will continue to do)

what it can to hold true the line between excessive law

enforcement zeal that transgresses constitutional limits, on the

one hand, and legitimate law enforcement techniques respectful of constitutional constraints, on the other hand. See, e.g.,

United States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011)

(affirming district court’s grant of motion to suppress evidence seized after a traffic stop). At the constitutional margins, of course, one may yet legitimately question why, as

Professor Leong correctly observed (and especially as the

government bears the burden of proof), close calls seem

always to go to law enforcement. See, e.g., United States v.

Mason, 628 F.3d 123, 132 (4th Cir. 2010) (holding that questioning of motorist and passenger unrelated to the basis for the

traffic stop that took "one to two minutes" did not render stop

unreasonable because the stop was conducted "promptly and

with efficiency"); but see id. at 134-35 (Gregory, J., dissenting) (disagreeing that duration of stop was reasonable, where

detaining officer described African-American occupants of

stopped car as "spooky spooky" and officer’s testimony

A. There’s a bunch of things you look at. You look at criminal

indicators when they’re coming by. How they position themselves when they come by. The expression they might give or the

expression they don’t give. Or when they come by, somebody

might just turn up a drink all of a sudden for no reason. Or when

they come by – you’re sitting there watching traffic. All of a sudden when the car comes by, they all of a sudden take their hand

and cover their face when they come by. It’s something that

draws your attention to them. But you’re also looking for a motor

vehicle violation. 

J.A. 128. 

24 UNITED STATES v. MUBDI
sought to justify reasonable suspicion based on officer’s "experience" and "sort of gut instinct"). To be sure, given the relative institutional competencies between district and circuit

courts, and given the controlling standards of review of suppression rulings, see ante 7, trial judges, not the judges of this

court, have the primary role in policing the police.

Our recent decision in United States v. Sowards, ___ F.3d

___, 2012 WL 2386605 (4th Cir. June 26, 2012), is wholly

consistent with our on-going efforts; it lays down an important marker that there are indeed limits to the scope of law

enforcement creativity inherent in the otherwise standardless

Whren doctrine. Unlike the majority here, however, I cannot

identify any material differences in the facts at hand that will

support a difference in outcome between this case and the outcome in Sowards on the issue of uncorroborated visual speed

estimates, although I fully agree that Sowards does not sound

the death knell to the use of visual speed estimates by law

enforcement officers.6 Accordingly, as to the justification for

the vehicle stop in this case, I join only Part II.A.2 of the

majority opinion, which, as an alternative holding, sustains

the district court’s determination that the ostensible

following-too-closely violation supported the existence of

probable cause to effect the vehicle stop here. I also concur

in Parts I, II.B., and III of the majority opinion, and in the

judgment.

6

Interestingly, the evidence at the suppression hearing, including the

officers’ testimony and images from the video taken by York’s dashboard

camera, indicated that over the approximately five miles during which

officers York and Wolfe surveilled Mubdi after they first observed the

Dodge Magnum, the posted speed limits on I-77 and I-40 increased from

fifty-five miles per hour (where the officers first observed Mubdi), to sixty

miles per hour, to sixty-five miles per hour at the location where the traffic

stop was finally effected. Apparently, the officers set up their "criminal

interdiction" operation, in which visual estimates of vehicle speeds played

a major role, at an optimal location to stop vehicles traveling more than

the posted fifty-five mile per hour limit, and just before the limit increased

to sixty, and then to sixty-five, miles per hour. 

UNITED STATES v. MUBDI 25