### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT November 28, 2003 THOMAS K. KAHN CLERK

* Honorab l e Robert B. Propst, United States District Judge for the Northern District of Alabama, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-15183

________________________ D. C. Docket No. 02-00053-CR-4 UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus JODY JAMES BOYCE, Defendant-Appellant

.

________________________ Appeal from the United States District Court for the Southern District of Georgia

_________________________ (November 28,

2003) Before ANDERSON and BIRCH, Circuit Judges, and PRO PST * , District Judge.2

BIRCH, Circuit Judge: Defendant-appel

lant, Jody Boy

ce, pled guilty

to possession with inte

nt to distribute controlle

d substances in violatio

n of 21 U.S.C. § 841(a)(1) after the district court ref

used to suppress eviden

ce obtained by pol

ice from a w

arrantless investigatory tr

affic stop and sear

ch of Boyce’ s vehicle. Boy ce challenges his conviction by conte

nding that the search

of his vehicle violat

ed the Fourth Amendme

nt because the police

detained him long

er than necessary

to process the original traffic violation without a reasonable, articulable suspicion to justify prolonging the detention. Boyce further argues that the detention and search are unconstitutional because “[t]he decision to detain the vehicle was based on Mr. Boyce’s refusal to consent to a search of his car.” Apellant’s Br. at 12. We agree that no sufficient f

actual basis existed

to justify the police in prolonging the detention beyond th e time necessary to process the o riginal traffic viol ation. Accordingly,

we REVERSE

the judgment of

the District Court

. I. BACKGROUND At 11:23 P. M. on 2 Novemb er 2001, Dep uty David Edwa rds of the S heriff’s Department f

or Liberty Cou

nty, Georgia

was patrolling Inte

rstate 95 when he observed a Dodge Ma

libu driving ten mi

les per hour under the

speed limit and weaving on the highwa

y. Thinking that

the driver migh

t be under the influen

ce of1 The videotape of the traffic stop is time stamped, but, unfortunately, the time noted on the

tape is incorrec

t. R2-10. Therefore, we will generally ref er to the tape only to show sequences of events and

the amount of time passing between events rather than referring to the specific time noted on the tape. When we must cite to the tape, we will list the time as stamped on the tape. 3 drugs or alcohol, Edwards stopped the vehicle and asked the driver, Jody Boyce, to exit to the rear of t he vehicle. Once Edwards ha d stopped Boyce’s vehicl e, a video camera in the patrol car be gan recording the re

mainder of the

traffic stop. 1 Boyce exited the vehicle and gave Edwards his driver’s license and rental car agreeme

nt. Boyce expl

ained to Edwards t

hat he had been pulled over a little while earlier f

or the same off

ense and that he was

tired because had be

en driving since 10:00 A.M. A

dmitting that he w

as too tired to drive,

Boyce then said that he would look for a place to sleep for the night. At this point, Edwards asked Boyce about his travel plans . Boyce respo nded that he was tra

velling from N

ew Jersey to Fort Lauderdale , Florida to see his “girlfriend/e

x-girlfriend.” E

x. 1 at 00:41:32- 34. Edwards asked, “Which is it?” and Boyce indicated that he was not sure what the current status of the relationship was because “she moved to Florida.” Id. Edwards asked about the length of Boyce’s trip and Boyce said that he was planning to return the following Wednesday, two day s after the renta

l agreement indicated the vehi cle was to be returned. Edwards later testified that this conversation made him suspicious that4

Boyce was bei

ng “deceitful. ” R2 at 19. Specif ically, Edw

ards testified that

he became suspici

ous because he felt i

t was unusual to drive

such a long distance to see an ex-girlfriend. Id. at 13. Edwards w as also suspcious beca

use of the discrepency be

tween Boyce’ s travel plans and his r ental agreem

ent, and because Boyce seemed extremely nervous. Id. at 21 Edwards testified that Boyce seemed nervous because Edwards had “never seen anyone sweat as m uch as he was,” Id. at 25, and because he was o verly talkative. Id. at 16. It seem ed unusual to Edwar

ds that Boyce would be so forthcoming about where he had been and what he had been doing. Id. In add itio n, Edw ards found it su spico us th at Boyc e told him a few times during their con versation that his license was good. Id. at 17. Edwards also testified, however, that Boyce’s behavior was not unique and that he has pulled over other d rivers who try to explain their actions. Id. at 42-43. At the end of this conv

ersation, Edwa

rds told Boyce tha

t he was not planning on giving him

a ticket and told him

to go back to his car w

hile Edwards looked for his warni ng citation book

. Id. at 14-15. Seven m inutes later, Edw

ards exited his patrol car

and asked Boyce

to come around t

o the back of his vehic

le again. Ex. 1 at 00:42:38-00:49:38. By this time, Edwards had received a clean license check on Boy

ce and had written a warning citation. R2 at 48. Edwar

ds returned Boyce ’s driver’s li cense and rental a

greement but did

not give him the5

citation. Id. at 49. Edward ’s the n tol d Boyce that h e was g oing to gi ve him a “courtesy warning” and asked

Boyce if ther

e were any dr

ugs or weapons in his car. Ex. 1 at 00 :49:54-00:50:23. Boy ce responded that the

re were none and Edwards asked Boyce if he cou ld search the car. Id. ; R2 at 17-18. Boyce refused to consent to the sear

ch and Edwards im

mediately returned to his vehic

le and called for a drug dog

unit. Ex. 1 at 00:50 :23-29. Edwards t hen told Boyce tha

t he had called a drug dog un

it and asked Boyc e to wait for the uni t to arrive. Edw

ards waited behind his ca r where he was still visi ble to the video camera. Edwards testifie

d that, at this point,

he was becomi

ng more suspicious

of Boyce because

Boyce had contin

ued to act nervously

even after being told that he would not be receiving a traffic ticket. In addition, Edwards testified that Boyce was moving back and forth and looking around, as if to flee, while they were waiting for the dru

g dogs. R2 at16. Approximately

six minutes afte

r calling the drug dogs , Edwards radio ed in a request for a criminal history of Boyce. E x. 1 at 00:56:07 (Edwards asks for a “c.h.”). This report had not c ome back anothe

r six minutes lat

er when the drug dogs arrived and alerted on Boyce’s trunk. Once the dog alerted, the police searched Boyc e’s car and found two large containe

rs of marij uana and a smal l box containing over 10,000

ecstasy pills.6

Boyce move

d to suppress evidence

of the drugs obtained d

uring the warrantless sea

rch of his vehicle a

rguing that his detenti

on, beyond the poin

t where Edwards

had written the wa

rning citation, viola

ted the Fourth Am

endment of the United State s Constitution. The m agistrate judge r

ecommende

d denial of Boyce’s m

otion. The distric

t court adopted the m

agistrate judge’ s report and denied Boyce’ s motion to suppres s. Boyce then p led guilty of posse ssion with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1), reserving his right to

appeal the district

court’s determ

ination that his detent

ion and search were lawful. II. DISCUSSION Boyce appeals t

he district court’ s decision to deny h is motion to supres s the evidence d iscovered during th e search of h is car. “We review the distri ct court’s denial of a moti

on to suppress evidence

as a mixed quest

ion of law and fact . ‘The district court’s findings of fact ar e viewed under the c

learly errone

ous standard; its application of the la

w to those facts is su

bject to de novo review.’” United States v. Gordon , 231 F.3d 750, 753-5 4 (11th Cir. 2000) (c itation omitted) . We also construe all facts in the light most favorable to the prevailing party in the district court–here, the gov ernment. United States v. M agluta , 44 F.3d 1530, 1536 ( 11th Cir. 1995).2 Boyce does not argue t

hat Edwards lack

ed probable cau

se to make the original traffic stop based on Boyce’s failure to maintain the same lane. 7 Boyce argues ge

nerally that E

dwards exceeded b oth the duration and the scope of a constitutio

nal traffic stop. 2 Under Terry v. O hio , an officer’s investigation of a tra

ffic stop must be

“reasonably

related in scope to t

he circumstances which justified the interference in the first place.” 392 U.S. 1, 20, 88 S. Ct. 1868, 1879 (1984) . In addition, the traffic stop must be of a limited duration. The stop “

may not last

‘any longer t

han necessary t

o process the traff

ic violation’ unless there is articulable suspicion of other illegal activity.” United States v. Purcel

l , 236 F.3d 1274, 127 7 (11th Cir. 2001) (ci tation omitted). Primarily, Boyce argues that the basis for detaining him while waiting for a drug dog unit was his re

fusal to allow Edw

ards to search his c ar. If this is the case, any resulting search would be a violatio n of the Fourth Amendment. United State s v. Wil liams , 271 F.3d 1262, 1271 ( 10th Cir. 2001); United States v. W ood , 106 F.3d 942, 946 (10th Cir. 1997). Alternatively, Boyce contends that the initial traffic stop invest

igation ended once E

dwards had com

pleted the warning c

itation and returned Boy

ce’s license and

rental agreem

ent. At that point,

Boyce argues, he should have been fr

ee to leave and his continued detention to aw ait a drug dog unit was unconstitutional, unless Edwards had a reasonable suspicion of criminal8

wrong-doing on Boy

ce’s part. Boy

ce argues that Edw

ards did not have the necessary reasonable suspicion because the factors on which the district court relied to find reasonable suspicion wer e nothing but “inch

oate suspicions and unparticularized h

unches.” Appella

nt’s Br. at 11. Thus, Boyce a rgues, Edwards should not have been all

owed to detain him

and the search res

ulting from this detention violat ed the Fourth Amendment. The governmen

t argues that Edwa

rds did not take longer

than necessary

to process the traff

ic stop because Edw

ards had not yet r

eceived the results

of the criminal histor

y check he had r

equested. Such a c

heck, in its view,

is a continuation of the original traffic stop such that Edwards could detain Boyce while awaiting the

results. Therefore, the governm ent argues, Edw

ards was being lawfully deta

ined when the drug dogs

arrived and, once

the dogs alerted on Boyce’s trun

k, the police had pro

bable cause to conduc

t a search. In the alternative, the

government arg

ues that Edwards ha

d a reasonable suspic

ion of criminal acti

vity on Boyce ’s part such that i t was constitutional t

o detain him until the drug dog unit arrived. A. Duration of the Tr

affic Stop An officer m

ay only prolon

g a traffic stop in s

pecial circum

stances. First, police officers conducting a traffic stop may “

prolong the detention to

investigate3 An officer may also prolong a detention with the consent of the detainee, United States v. Tapia , 912 F.2d 1367, 1370 (11th Cir. 1990) but neither Boyce nor the government a rgue that Boyce consented to the detention at issue. 9 the driver’s lic ense and the vehicle registration, and may do so by requesting a computer check.” Purcell , 236 F.3d at 1278. S imilarly, out of interest for the officer’s saf

ety, we have

found that officer

s may perm

issibly prolong a de

tention while waiti ng for the r esults of a criminal hi story check t hat is part of the offi cer’s routine traffic inve stigation. Id. at 1278. In addition, an officer m

ay prolong a traffic stop if he has “artic ulable suspicion of other illegal acti vity.” 3 Id. at 1277. This case, howe

ver, does not prese

nt any of these si

tuations. 1. Criminal History Check The governmen

t argues that our opini

on in Purcell

stands for the proposition that an officer may generally detain a driver to await the results of a criminal histor

y check so long as t

he detention does not la

st an unreasonably

long time. The c

ircumstances in Purcell , however, are distinguishable from

those in this case in a cruci

al way. In Purcell , we held that the o fficer could perm issibly detain the defendant pending a criminal history check because the officer had made the request for a criminal history check as part of his “ routine computer check.” Id. at 1278. That chec k was clearly

part of the original

traffic stop investigation. Here, Edwards did not re quest a crimina

l history check a

s part of4 The districtcourt also found that Edwards had requested a vehicle history report that did not arrive until, approximately, two minutes before th e drug dogs ar

rived. While waitin

g for this report may have, in other circumstances, allowed Edwards to detain Boyc e, Purcell , 236 F.3d at 1279 (three minute detention after requested infor mat ion arrived was deminimis and not an unconstitional detention), it does not permit pr olonging the de

tention in this case . T his check, like the criminal history check, did not appear to be part of Edwards’s routine. Edwardsnever testified that he was waiting for a vehicle history report and the only ev id ence in the record suggesting that Edwards requested such a report is the videotape which also indicates that Edwards made the

request after h

is initial investigation had ended. Moreover, the government does not argue on appeal that Edward’s was waiting for a vehical history. 10 his routine compu

ter check. Edw

ards only reques

ted a license chec

k when he initially stopped Boyce and had received that information when he told Boyce that he would only get a

warning citation. Once Edwards ha d completed wr

iting the warning citation an

d returned Boyce’s license and r ental agreem

ent, the traffic violat ion in vestig ation w as compl ete and , as Edwar ds admit s in his testimo ny, Boyce was fr

ee to go. R2 at 57. Edwards did not request the criminal history check until several minutes after he had writ

ten the warning. T

herefore, the c

riminal history

check could not be part of the origin

al traffic stop inve stigation and could not be the basis for prolonging Boyce’ s detention. Once the traffic stop w as at an end, Edw

ards should have let Boy

ce go unless he had a r

easonable and artic

ulable suspicion of some other cri

minal wrong doin

g. 4 2. Reasonable Suspi

cion The governmen

t also argues that E

dwards had a reas onable and articula ble11

suspicion sufficient to detain Boyce beyond the initial traffic stop. In United States v. Tapia

, we stated that r

easonable suspicion r

equires that the off

icer “be able to point to specific and articulable facts which, taken together with rational inferences from

those facts, rea

sonably warra

nt that intrusion.” 91 2 F.2d 1367, 1370 (11th Cir. 1990) (

citation omitte

d). Further, w

e stated that reaso

nable suspicion is determ

ined by the “

totality of the c

ircumstances”

such that, while some individual factors may be “consistent with innocent travel . .. [they can also], when taken together, give rise to a reasonable suspicion.” Id. “Neverthele ss, ‘reasonable suspicion must be m

ore than an inchoate

‘hunch,’ and the [F ]ourt h [A]men dment a ccord ingl y requi res th at pol ice ar ticul ate so me minimal, objective justification for an investigatory stop.” Id. In this case, the district court found that Edwards articulated enough factors that, when taken together, gave rise to a reasonable suspicion that Boyce was engaged in crim

inal activity. Specifically , the district cour

t adopted the mag

istrate judge’s report which listed the fol lowing factors as c

reating a sufficie

nt basis for reasonable and art

iculable suspicion: that drug dealers use

the Interstate 95 corridor and freque ntly drive rented cars [as B oyce was doing] . . . .[,] that [Boyce] was unusually talkative and nervous , that his story about driving from New Jersey

to Florida to see an ex-girlfriend seemed suspicious, that his rental agreement w

as inconsistent with h

is stated travel pla

ns, and that he5 D uring oral arg ument, there was

mention of another

possibly suspi

cious circumsta

nce . Spe cif ica lly, it was suggested that it may have been suspicious for Boy ce to ask Edwards if there were any hotels in

the area even th

ough he had just

passed an exit with lodging. First, we note that neither the district court

nor the government relies on or e ven cites this as on

e of the factors

to consid er. But, eve n if they had relied on it, this wa

s not a suspicious ci

rcumstance in this

case because Boyce never indicated that he ha d been looking for lodging before Edwards stopped him. The tape suggest s that Boyce was c hoosing to stop for t he night only because he had been pulled ove rfor the second time. Because he had not been looking for a hotel prior to the stop, it is not suspicious that he d

id not pull over at th

e earlier exit. 12 was sweating profusely . . . [and] he continued to sweat and act nervously after

learning that he wo

uld only receive

a warning citation. 5 R1-19 at 6-7, adopted by District C ourt at R1-28. While these combined factors may ra ise a reasonable suspicion in another case, the recor

d here does not substant

iate the district co

urt’s findings that

all of these factors exis

ted in this case. Mo

reover, when w

e look at the factor

s that do clearly exist in this case, they do not amount to a reasonable suspicion of criminal activi ty. Edwards and the dis

trict court relie

d heavily on Boy

ce’s nervousness a

nd the behaviors that co

nveyed this nervou

sness such as sweati

ng, being unusually talkative, and moving b ack and forth “as if looki ng for a place to run.” R2 at 18. We find that the di strict court clear ly erred in fin

ding Boyce was “

unusually nervous because th e videotape belies Ed wards’s testimony as to these be haviors. For example,

Edwards testifie

d that he had never se

en anyone swea

t so much in13

his life as Boyce. Id. at 25. But, if som eone were swea

ting so profusely,

one would expect to see h

im wipe his brow

more than once

in the span of twenty minutes. The

tape does not show Boy

ce wiping his brow,

even once, until the

stop had been on-going for t

wenty minu

tes. Further, B oyce’s shirt never appeared to be sticking to him and it did not appear to have any swea

t stains. Similarly, the tape does not show Boyce to be particularly talkative. Boyce did try to explain his driving behavior at the beginning of the stop and said, a few times, that his

license is good, but th

rough most of the t

ape he is mere

ly answering Edwards’s ques

tions. In fact, a

fter their initial

conversation, bef

ore Edwards we

nt to his vehicle to find hi s citation book, Boy ce hardly said a

word, speaking only

to answer Edward’s question s. In addition, even thou

gh Edwards testif

ied that Boyce w

as moving back an

d forth as if “lo oking for a place to r un” while they w

ere waiting for t

he drug dog unit to arrive, m

ost of the time B oyce was, in f act, standing still.When Boyce did move, he shift

ed his weight back an

d forth without actua

lly moving fr

om the spot where Edwards asked him to wait. Further, this alleged pacing occurred after Edwards had unlawfull y decided to detain Boyce. The district court also relied on Edwards’s testimony that Boyce c ontinued to act nervously e

ven after Edwar

ds told him he woul

d receive just a w

arning14

instead of a ticket. Aga in, we find that the tap e belies Edwards’s testimony. As we have already noted, the tape shows that Boyce was not acting nervously even before he was told he wou ld only receive a warning. In addition, the tape s hows that Edwards did not

have time to obse

rve any continue

d nervousness before

he calle d the d rug do g uni t beca use le ss th an for ty seco nds el apsed betwe en the time Edwards told Boy

ce he would not get a ticket and the tim e Edwards retur

ned to his car to call for the dogs . Ex. 1 at 00:49:54-00 :50:29. Besides th e nervousn ess, the di strict cou rt also rel ied on Edwar d’s testimony th

at he was suspicious b ecause Boyce was traveling such a long distance to see an e

x-girlfriend. T

he problem wit

h using this factor as a basis for reasonable suspicion

is that Boyce e

xplained to Edward

s why he was m

aking the trip. Boyce w

as not sure of the cur

rent status of the re

lationship because his girlfriend had moved to Florida while he live d in New Jersey. Id. at 01:41:30-39. Once Boyce e

xplained his situation,

“suspicious incons

istencies virtually evaporated and any

justification . .. for further inv estigation [based on t

his inconsistency] dissipated.” Wood , 106 F.3d at 947. Further, even if Boyce had not explained him

self, his travel pl

ans, though unusual in E

dwards’s opinion,

do

not su ggest a ny crimina l activ ity. This leaves as the o

nly factors cr

eating a reasonable

suspicion: 1) driving a15

rental car on a known dr ug corridor and 2) pl anning to return th e car two days late. The more suspi

cious of these fact

ors is the plan to retu

rn the car late. We, and other courts, have, in certain circumstances, found that inconsistencies in travel plans can give rise t o a reasonable susp icion. See e.g., Willi ams , 271 F.3d at 1270; United States v. P

ruitt , 174 F.3d 1215, 1220 ( 11th Cir. 1999); Wood , 106 F.3d at 947; United States v. H arris , 928 F.2d 1113, 1117 (11th Cir. 1991). In all of those cases, however, the inconsistency was one of several factors considered and was more directly indicativ e of some sort of criminal activi ty. For example,

conflicting answer

s about where one is traveling to or from may give ri se to a suspicion of dru g activity beca

use most driver

s know the answers to these questions and because the driver may be trying to hide the fact that he is going to or from a known drug-sourc e state. Willi ams , 173 F.3d at 1270; Wood , 106 F.3 d at 947 . Similar ly, it raises a reason able suspicion that the

car is stolen if the rental

agreement show

s that the person deta

ined is not authorized to drive the vehicle. Pruitt , 174 F.3d at 1220. In this case, the fact that Boyce was planni ng to re turn hi s car lat e does n ot sug gest an y criminal activi ty. The plan to return the car late, combined with the fact that Boyce was driving a rental car o n a widely used interstat e that also happens to be a known drug corridor, does not create a reasonable suspicion in this case. These factors6 To conclude that these factors added up to reasonable suspicion,the magistrate judge and

distri ct court re lied on United States v. Ha rris , in which we found there was reasonable suspicion because the defendant was 1) driving a rental car with a restricted license, 2) was shaking and acting extremely nervous, and 3) gave

conflictingresponses regarding his travel plans. 928 U.S. 1116-17 (11th Cir. 1991). The factors creating reasonable suspicion in Harris , however, are distinguishable fromthe factors cite

d in this case. Fir

st, in this case, the videota pe shows that Boyce was not 16 “would likely

apply to a conside

rable number of

those traveling for perfectly legitimate purposes” and “do[] not reasonably provide . . . suspicion of crim inal activity.” United States v. S mith , 799 F.3d 704, 707 (1 1th Cir. 1986). See also , Reid v. Georgia

, 448 U.S. 438, 441, 100 S. Ct. 2752, 2754 (finding that arr

iving early in the m

orning, when law e

nforcement a

ctivity is lower

, from a know

n drugsource state with n

o luggage other than sho

ulder bags was not suf

ficient for reasonable suspicion

because those fact

ors “describe

a very large category of presumably innocent travlers, who would be subject to virtually random se izures were the Court to c

onclude that as little

foundation as there w

as in [that] case could justify a seizure”); Karnes v. Skrutsk i , 62 F.3d 485, 493 (3r

d Cir. 1995) (“[T]he factors together m ust serve to elim

inate a substantial po

rtion of innocent travelers before the req uirement of reasonable su spicion will be sat isfied.”). Because the totalit

y of the circum

stances are not suff

icient to create a

reasonable suspicion that Boy

ce was involved in cr

iminal activity

, Edwards could no

t lawfully hold him

beyond the tim

e of the initial inves

tigation. Theref

ore, the resulting search w

as unconstitutional. 6extremely

nervous. Second,

in Harris , the circumstances were suspicious because the defendant had a restricted license indicating that he may not have been authorized to drive the car at the time he was stopped. Id. at 1114-15. Conver sely, Boy ce was authorize

d to drive his renta

l car. Fin

ally, in Harris , the defendant

originally said he started driving in Florida and then chang ed his story to say he started from

Georgia. Id. at 1114. This can raise a reasonable suspicion because it suggests that the defendant is trying to hide that he was coming from Florida, a known drug-sour

ce state. In

this case, Boyce was

always for

thcoming and con

sistent about his

travel plans. The only inconsistency was not in Boyce’s statements but in h i s plan to return the

rental car late, which he readil y acknowledged. Nothing in this inconsistency indicated that Boyce was any

different from the lar ge number of innocent trave

lers who extend the

ir trips beyo

nd the time origin

ally provided for

in their rental agreements.

7 Although Edwards testified that Bo yce had be

come more suspici

ous in thistime because his nervousness d id not subside after Edwards told him he would receive a warning instead of a ticket, we note, as discussed earlier, that the tape shows that Edwards did not have time to observe any continu

ed nervousness be

fore he called t

he drug dog uni

t. 17 Moreover, it seem

s to us that the decision

to detain Boyce

and to call the drug dog unit was b ased on Boyce’s refusal to co nsent to a search of hi s vehicle. Edwards testifie

d that Boyce wa

s suspicious because he

was nervous and bec ause he had unusual travel plans. But what is troubling to us is that all of these factors were present bef

ore Edwards dec

ided to issue a warn

ing citation and ye

t, Edwards, at that point, was s

till willing to let Boy

ce go with nothing but a

warning. The only significant event be

tween the time

that Edwards wr

ote the warning cit

ation to the time Boyce

called the drug dog uni

t was Boyce as serting his constitution al right not to let Edwards search his car. 7 This suggests that the true reason Edwa

rds chose to detain Boyce was b ecause Boyce would not con sent to a search of his car. Willi ams , 271 F.3d at 1271 (10t h Cir. 2001) (noting t

hat, when the only18

siginificant even be

tween the time

the police said the defendant was free to go and the arrival of the drug unit was the refusal to consent to a se arch, the circumstance s “suggest[] ostensibly that the officer based his d

etention of [defendant] sole

ly on his refusal

to consent to the offi

cer’s request t

o search the vehicle.”). In

addition, the tape sh

ows that Edwards immediate ly called in the drug dog u nit after Bo yce refused to allow a sear ch. The immediacy of Edwards’s response also indicat

es to us that the refu

sal to consent was the

deciding factor for Edwards to continue

Boyce’s det

ention. The police

cannot base their de

cision to prolong a traffic s

top on the detainee’ s refusal to consent to a search. Such a refusal may only be considered when the police have already observed, before asking for permission to search, facts suffici ent to raise a reasonab le suspicion. Id. (holding that the offi

cer could choose to de

tain defendent afte

r he refused to consent to a search o f his car “if the officer alre ady had suffici

ent reasonable suspicion to detain [the defendant] for the purpose of the canine drug search”). In this case, as already discussed, Edwards had not observed facts sufficient to raise a reasonable suspicion

when he asked for consent. Therefor e, Edwards coul

d not consider Boyce’s refusal to consent in making his decision to detain Boyce. Because th e tape show s that Edwar ds did unl awfully base his decis ion on Boyce ’s refusal to consent,

the detention and sea

rch were unconstit

utional.8 Whether this is still the test in the Tenth Circuit is unclear. In United States v. Holt, 264 F.3d 1215, 1226 (10th Cir. 2001), the court declined to decide if they should apply the Fifth Circuit’s test to questions regarding the scope of questioning during a traffic stop. 19 B. Scope of the Traf

fic Stop Boyce also argues that Edwards exceeded the permissible scope of an investigatory sto

p when he began to ask Boyce whether he was carry

ing any contraband. In Purcell , we recognized that there are tw o possible tests for w

hen a police investigation e

xceeds the scope of a

routine traffic s

top. 236 F.3d at 1279- 80. The first test comes from the Tenth Circuit and lim its the questions a police officer may

ask to those questions tha t are justified by

reasonable suspicion

of criminal acti

vity or reasona

ble safety concerns. 8 Id. at 1279. The second test comes from

the Fifth Circuit a

nd holds that questions unr elated to the reaso

n for the initial stop a re only unlawful if they exten d the duration of th e initial seizure. Id. at 1279-80. In this c ase, we have alr eady held that E

dwards’s question

s about contraband extended the duration of the ini tial seizure and tha

t Edwards did not have a reasonable suspicion of criminal activity. In addition, Edwards never testified that it w

as concern for his s afety that prom pted him to expand

the scope of his questioning. T

herefore, as in Purcell , we need not dete rmine which te st is controlling in this cir

cuit because under e

ither test, Edwa

rds’s investigation exceeded the perm

issible scope of an inv

estigatory stop.20 III. CONCLUSION While we recognize that drug trafficking is a serious problem in this country and we encourage l

aw enforcme

nt agencies to use eve

ry available m

eans to control it, we ca

nnot condone metho ds that offend the pro tections afforded b

y the Constitution. The de

tention of Jody Boy

ce extended bey

ond the time nece ssary to process the traff

ic violation for whi

ch he was stopped and Officer Edwa rds did not have the reasonable

suspicion to justify

such a detention. A

ccordingly, the detention and search were unreasonable under the Fourth Amendment. The order of the district cour

t denying Boyce’s motion to s uppress is REVER

SED, the judgments of conviction VACATED, and the case REMAN DED to the district court for further proc eedings consiste nt with this opin ion.21

PROPST, District Judge, concurring dubitante.