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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
No. 98-4255
ALEXIS A. BRUGAL; HENRY M.
ADAMES, M/O; REYNA M. DEJESUS,
F/O,
Defendants-Appellees.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-97-1042)
Argued: October 25, 1999
Decided: April 4, 2000
Before WILKINSON, Chief Judge, WIDENER, MURNAGHAN,
WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL,
MOTZ, TRAXLER and KING, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
_________________________________________________________________
Vacated and remanded by published opinion. Senior Judge Hamilton
wrote an opinion, in which Chief Judge Wilkinson and Judges Wil-
kins, Niemeyer, Traxler, and King joined. Judge Luttig wrote an opin-
ion concurring in the judgment, in which Judge Williams joined.
Judge Murnaghan wrote a dissenting opinion, in which Judges Wid-
ener, Michael, and Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Miller Williams Shealy, Jr., Assistant United States
Attorney, Charleston, South Carolina, for Appellant. Ann Briks
Walsh, Assistant Federal Public Defender, Charleston, South Caro-
lina; Barry Francis Kenyon, New York, New York; Jared Sullivan
Newman, DAUGS, TEDDER & NEWMAN, Port Royal, South Caro-
lina, for Appellees. ON BRIEF: J. Rene Josey, United States Attor-
ney, Charleston, South Carolina, for Appellant.
_________________________________________________________________
OPINION
HAMILTON, Senior Circuit Judge:
On October 31, 1997, Trooper Jackie Lynn Lawson (Trooper Law-
son) of the South Carolina Highway Patrol discovered approximately
eight kilograms of cocaine and one kilogram of heroin in a vehicle
driven by Alexis Brugal (Brugal) and occupied by Henry Adames
(Adames) and Reyna DeJesus (DeJesus). Trooper Lawson discovered
the drugs during events immediately following a stop at a checkpoint
on an exit ramp off Interstate 95 in South Carolina.
On November 20, 1997, a federal grand jury sitting in the District
of South Carolina returned a two-count indictment charging Brugal,
Adames, and DeJesus with conspiracy to possess cocaine with the
intent to distribute, see 21 U.S.C. §§ 841(a)(1) and 846, and posses-
sion of cocaine with the intent to distribute, see id. § 841(a)(1). In
January 1998, Brugal, Adames, and DeJesus each moved to suppress
the drugs seized by Trooper Lawson. On February 26, 1998, the dis-
trict court granted the motions, and the government appealed.
On July 19, 1999, a panel of this court affirmed. See United States
v. Brugal, 185 F.3d 205 (4th Cir. 1999). On September 20, 1999, a
majority of the active circuit judges voted to rehear this case en banc.
For the reasons stated below, we vacate the district court's order
granting the defendants' motions to suppress and remand for further
proceedings consistent with this opinion.
2
I
On October 31, 1997, at approximately 3:30 a.m., Brugal, Adames,
and DeJesus were traveling northbound on Interstate 95 near Ridge-
land, South Carolina. Brugal was driving, and Adames and DeJesus
were passengers. As they approached Exit 22, they passed two signs,
illuminated by safety flares and reflective lettering, reading "DRUG
CHECKPOINT AHEAD." The first sign was placed 1000 feet before
Exit 22, and the second sign was placed 500 feet before the exit.
There was no drug checkpoint on Interstate 95. Instead, at the
direction of Sergeant John Hunnicut of the South Carolina Highway
Patrol, Trooper Lawson and Officer Larry Shoemaker of the Ridge-
land Police Department, established a checkpoint on Exit 22's exit
ramp. The checkpoint was located at the end of the exit ramp just
before the road forks. The checkpoint was established to verify the
driver's license and vehicle registration of every motorist that got off
at Exit 22. According to Trooper Lawson, the decoy drug checkpoint
signs were placed on the interstate in hopes "that people carrying nar-
cotics will become erratic, exit off the interstate, throw the narcotics
out[, or . . .] cross the median and go back in the opposite direction."
Exit 22 was selected by the officers because they considered it a
"dead exit." Unlike the exit preceding it, Exit 21, which has three
well-lit twenty-four hour gas stations, the area around Exit 22 shows
no signs of activity at 3:30 a.m. A traveler's advisory sign for Exit 22
on Interstate 95 indicates that a gas station is located at that exit, but
it is closed at night and cannot be seen from the interstate at night.
After passing the decoy drug checkpoint signs, Brugal exited Inter-
state 95 at Exit 22. On Exit 22's exit ramp, Brugal was stopped at the
checkpoint established by Trooper Lawson and Officer Shoemaker.1
_________________________________________________________________
1 Brugal's vehicle was the fifth vehicle stopped at the checkpoint,
which was established at 3:00 a.m. on October 31, 1997. The driver of
the first vehicle, who was driving from Florida to Orangeburg, South
Carolina, had an invalid driver's license. The driver told Trooper Lawson
he exited at Exit 22 because "he was nervous about not having a driver's
license." The driver of the vehicle was issued a ticket for having an
3
Trooper Lawson approached Brugal's vehicle and asked Brugal for
his driver's license and vehicle registration. Brugal produced a New
York State driver's license. In lieu of a vehicle registration, Brugal
produced a rental agreement with Alamo Rent-A-Car indicating that
the vehicle was rented by him in Miami, that he had a New York City
address, and that the vehicle was to be returned to Miami on Novem-
ber 6, 1997.2 While reviewing Brugal's driver's license and rental
agreement, Trooper Lawson asked Brugal why he had left the inter-
state and where he was headed. Brugal responded that he needed gas
and was headed for Virginia Beach. During his questioning of Brugal,
Trooper Lawson noticed that the vehicle had a quarter of a tank of gas
and three pieces of luggage in the rear cargo area. Trooper Lawson
also noticed that Brugal was in full compliance with the terms of the
rental agreement. However, believing he had reasonable suspicion
that criminal activity was afoot, namely, the transportation of drugs,
Trooper Lawson retained Brugal's rental agreement and instructed
him to pull over to the shoulder of the road.3 Approximately two min-
utes elapsed from the time Trooper Lawson initially approached Bru-
gal's vehicle and the time Trooper Lawson instructed Brugal to pull
his vehicle over to the shoulder of the road.
_________________________________________________________________
invalid driver's license. The vehicle was searched, but no weapons or
contraband were found. The driver of the second vehicle initially did not
stop at the checkpoint when the officers motioned for her to stop. She
was a Ridgeland, South Carolina resident who had a valid driver's
license, but no vehicle registration. The vehicle was searched, but no
weapons or contraband were found. The third and fourth vehicles were
driven by residents of Charleston, South Carolina. They were looking for
Exit 33, the exit for Highway 17 north to Charleston, but Exit 22 is for
Highway 17 south. These drivers had valid driver's licenses and vehicle
registrations.
2 Brugal rented the vehicle in Miami at 1:36 p.m. on October 30, 1997.
Therefore, between the time he rented the vehicle and the time he exited
Exit 22, approximately fourteen hours had elapsed. The distance between
Miami and Exit 22 is approximately 515 miles.
3 In its opinion, the district court found that Trooper Lawson instructed
Brugal to pull his vehicle over to the shoulder of the road because he had
"a hunch that these Defendants were 3 `mules' transporting drugs."
4
After Brugal pulled his vehicle over to the shoulder of the road,
Trooper Lawson pulled his unmarked police cruiser behind Brugal's
vehicle and activated the video camera mounted on the dashboard.
Trooper Lawson then approached Brugal's vehicle and asked Brugal
to "come out and talk to [him] for a minute." Brugal immediately
exited his vehicle and walked with Trooper Lawson to the back of his
(Brugal's) vehicle. Trooper Lawson momentarily returned to his
cruiser to illuminate the cruiser's headlights. After doing this, Trooper
Lawson approached Brugal and, while examining the rental agree-
ment, asked him if he rented the vehicle in Miami, and Brugal
responded in the affirmative. Brugal also indicated that he had just
moved there from New York City. Trooper Lawson asked Brugal if
he had weapons, drugs, or anything illegal in his vehicle, and Brugal
responded that he did not. Trooper Lawson then asked Brugal if he
could search the vehicle, and Brugal responded "no problem."
Trooper Lawson repeated his request to search and, again, Brugal
responded "no problem." Approximately two minutes elapsed from
the time Trooper Lawson instructed Brugal to pull his vehicle over to
the shoulder of the road and the time Brugal gave his consent to
search.
Following Brugal's consent to search, Trooper Lawson asked
Adames and DeJesus to exit the vehicle, which they immediately did.
A protective pat-down was performed on Brugal and Adames, and
DeJesus was asked to expose her waistband to allow the officers to
see if she had a weapon there. A search of the vehicle was then per-
formed by Trooper Lawson. During the search, Trooper Lawson dis-
covered two pieces of luggage that contained packages slightly larger
than bricks. It was later discovered these two pieces of luggage con-
tained approximately eight kilograms of cocaine and one kilogram of
heroin.
II
A
The Fourth Amendment guarantees "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreason-
able searches and seizures." U.S. Const. amend. IV. Temporary deten-
tion of individuals during the stop of an automobile by the police,
5
even if only for a brief period and for a limited purpose, constitutes
a seizure of a person within the meaning of the Fourth Amendment.
See Delaware v. Prouse, 440 U.S. 648, 653 (1979). Thus, stopping a
vehicle at a checkpoint constitutes a seizure of a person within the
meaning of the Fourth Amendment. See Michigan Dep't of State
Police v. Sitz, 496 U.S. 444, 450 (1990); United States v. Martinez-
Fuerte, 428 U.S. 543, 556 (1976).
Constitutional challenges to checkpoint seizures turn on whether
the initial stop at the checkpoint was reasonable. See Sitz, 496 U.S.
at 450. Whether particular checkpoint seizures are reasonable is deter-
mined by balancing the gravity of the public interest sought to be
advanced and the degree to which the seizures do advance that inter-
est against the extent of the resulting intrusion upon the liberty inter-
ests of those stopped. See id. at 449-55.
Applying this balancing analysis, the Supreme Court has upheld
the constitutionality of government checkpoints set up to detect
drunken drivers, see id. at 454, and illegal immigrants, see Martinez-
Fuerte, 428 U.S. at 556-67, so long as they involve no more than an
"initial stop . . . and the associated preliminary questioning and obser-
vation by checkpoint officers." Sitz, 496 U.S. at 450-51. The seizure
at the sobriety checkpoint upheld in Sitz lasted approximately twenty-
five seconds, see id. at 448, and the seizures at the immigration
checkpoint upheld in Martinez-Fuerte lasted three to five minutes, see
428 U.S. at 544-48.
The Supreme Court has also recognized that a state has a substan-
tial interest in enforcing licensing and registration laws, though that
interest is not substantial enough to justify roving patrol stops as an
enforcement mechanism. See Prouse, 440 U.S. at 658-59. But, the
Court suggested in Prouse, albeit in dicta, that checkpoints to check
driver's licenses would be permissible even in the absence of articul-
able and reasonable suspicion that a driver was unlicensed. See id. at
663; cf. Texas v. Brown, 460 U.S. 730, 743 (1983) (plurality opinion)
(noting that the circumstances surrounding stop at driver's license
roadblock gave "no suggestion that the roadblock was a pretext
whereby evidence of a narcotics violation might be uncovered in
`plain view' in the course of a check for driver's licenses"). Drawing
on these authorities, courts have concluded that a brief stop at a
6
checkpoint for the limited purpose of verifying a driver's license,
vehicle registration, and proof of insurance is a reasonable intrusion
into the lives of motorists and their passengers even in the absence of
reasonable suspicion that a motorist or passenger is engaged in illegal
activity. See, e.g., United States v. Galindo-Gonzales, 142 F.3d 1217,
1221 (10th Cir. 1998) (brief detention of motorist to inspect driver's
license, vehicle registration, and insurance information at an estab-
lished license checkpoint comports with the Fourth Amendment);
United States v. McFayden, 865 F.2d 1306, 1310-13 (D.C. Cir. 1989)
(same).
However, the Supreme Court has recognized that an initially per-
missible checkpoint seizure may transform into an impermissible one
by further intrusions not based upon individualized suspicion or con-
sent. See United States v. Brignoni-Ponce, 422 U.S. 873, 881-82
(1975); see also Sitz, 496 U.S. at 451. Thus, when an officer seeks to
expand the investigation of a motorist beyond the reasons for the
checkpoint, the officer must have a reasonable suspicion that the par-
ticular person seized is engaged in criminal activity, see Sitz, 496 U.S.
at 451, or obtain consent during the time period the defendant is law-
fully seized, see Brignoni-Ponce, 422 U.S. at 881-82.
B
The district court analyzed this case as involving two seizures, the
first occurring when Brugal's vehicle was stopped at the checkpoint;
the second occurring when Trooper Lawson retained Brugal's rental
agreement and instructed him to pull his vehicle over to the shoulder
of the road. With respect to the first seizure, the district court held that
"Trooper Lawson's initial seizure accompanied by a brief detention
and limited questioning did not offend the Fourth Amendment."4 With
_________________________________________________________________
4 The defendants concede that the initial stop effectuated by the check-
point was legal and that Trooper Lawson was entitled to request Brugal's
driver's license and vehicle registration to ensure that he was legally
entitled to operate the vehicle he was driving. The defendants also con-
cede that Trooper Lawson was entitled to ask for consent to search dur-
ing this verification process. In light of the defendants' concession that
the police established a valid license checkpoint, we need not address the
validity of the initial stop.
7
respect to the second seizure, the district court held that this seizure
was constitutionally impermissible because, the purposes of the
checkpoint--verification of a valid driver's license and vehicle
registration--having been fulfilled by the time Trooper Lawson
instructed Brugal to pull his vehicle over to the shoulder of the road,
Trooper Lawson did not have a reasonable suspicion that criminal
activity was afoot, namely, the transportation of drugs. In reaching its
ruling on the constitutionality of the second seizure, the district court
analyzed eleven factors, which Trooper Lawson testified he observed
prior to his decision to instruct Brugal to pull his vehicle over to the
shoulder of the road, and which made him suspicious of the defen-
dants' activities.5 With respect to these eleven factors, the government
argued they "collectively gave rise to Trooper Lawson's reasonable
suspicion." The district court concluded that these eleven factors, in
their totality, did not give rise to a reasonable suspicion that the
defendants were transporting drugs. Rather, according to the district
court, Trooper Lawson acted on a "hunch that these Defendants were
3 `mules' transporting drugs[;] [h]e pulled them over and discovered
that he was right."
The district court erroneously analyzed this case as involving two
seizures. When the defendants were stopped at the checkpoint, they
were seized within the meaning of the Fourth Amendment. See Sitz,
496 U.S. at 450. Although the purposes of the checkpoint were ful-
filled at the time Trooper Lawson instructed Brugal to pull his vehicle
_________________________________________________________________
5 The eleven factors are: (1) Interstate 95 is a major thoroughfare for
narcotics trafficking; (2) Brugal exited Interstate 95 after passing two
well-lit decoy drug checkpoint signs; (3) Brugal had a New York State
driver's license; (4) Brugal rented the vehicle in Miami; (5) the rental
agreement indicated that Brugal had a New York City address; (6) a
common practice of drug couriers is to fly to Miami, acquire drugs, rent
a vehicle, and drive north; (7) Brugal indicated that he was searching for
gas even though his vehicle had a quarter of a tank of gas; (8) Brugal just
passed an exit, Exit 21, with several well-lit twenty-four hour gas sta-
tions; (9) the gas station referred to by the travel advisory sign cannot be
seen from Interstate 95, and the area around Exit 22 showed no signs of
activity at 3:30 a.m.; (10) the defendants were traveling at 3:30 a.m.; and
(11) Brugal and his passengers only had three small bags which, accord-
ing to Trooper Lawson, was insufficient luggage for three persons, two
males and one female, traveling from Miami to Virginia Beach.
8
over to the shoulder of the road, the defendants were never "unse-
ized," i.e., free to go, at that time because Trooper Lawson retained
Brugal's rental agreement. See S.C. Code Ann. § 56-3-1250 (requir-
ing every motorist to possess a vehicle registration). Thus, from an
analytical standpoint, instead of analyzing whether a second seizure
was justified by reasonable suspicion, the district court should have
analyzed whether the defendants' continued seizure was justified by
reasonable suspicion. The district court's erroneous analytical frame-
work is of no moment because whether we apply the district court's
incorrect second seizure framework or the more appropriate continu-
ing seizure framework, the seminal question in the case remains the
same: whether Trooper Lawson had a reasonable suspicion that crimi-
nal activity was afoot, namely, the transportation of drugs, at the time
he instructed Brugal to pull his vehicle over to the shoulder of the
road.
C
The Terry6 reasonable suspicion standard requires an officer to
have a reasonable suspicion that criminal activity is afoot before he
may conduct a brief investigatory stop of a person, see 392 U.S. at
30, or continue to seize a person following the conclusion of the pur-
poses of a valid stop, see, e.g., United States v. Rusher, 966 F.2d 868,
876-77 (4th Cir. 1992) (holding that, during a routine traffic stop, the
officer may request a driver's license and vehicle registration, run a
computer check, and issue a citation, but that "[a]ny further detention
for questioning is beyond the scope of the Terry stop and therefore
illegal unless the officer has a reasonable suspicion of a serious
crime"). The standard "is a less demanding standard than probable
cause and requires a showing considerably less than preponderance of
the evidence." Wardlow v. Illinois, 120 S. Ct. 673, 675-76 (2000).
However, the Terry reasonable suspicion standard does require "a
minimal level of objective justification" for the police action. Id. at
676. "The officer must be able to articulate more than an `inchoate
and unparticularized suspicion or "hunch"' of criminal activity." Id.
(quoting Terry, 392 U.S. at 27). We have said that the Terry reason-
able suspicion standard is "a commonsensical proposition," and that
"[c]ourts are not remiss in crediting the practical experience of offi-
_________________________________________________________________
6 Terry v. Ohio, 392 U.S. 1 (1968).
9
cers who observe on a daily basis what transpires on the street."
United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993).
The reasonable suspicion determination does not depend upon any
one factor, but on the totality of the circumstances. See United States
v. Sokolow, 490 U.S. 1, 8 (1989). In assessing whether reasonable
suspicion is present, we review the district court's findings of histori-
cal fact for clear error and the determination of reasonable suspicion
de novo. See Ornelas v. United States, 517 U.S. 690, 699 (1996).
The Supreme Court has recognized that factors consistent with
innocent travel can, when taken together, give rise to reasonable sus-
picion. See Sokolow, 490 U.S. at 9 ("[A]ny one of these factors is not
by itself proof of any illegal conduct and is quite consistent with inno-
cent travel. But we think taken together they amount to reasonable
suspicion."); see also Wardlow, 120 S. Ct. at 677 ("Terry accepts the
risk that officers may stop innocent people."). In Sokolow, the defen-
dant was stopped at Honolulu International Airport by Drug Enforce-
ment Administration (DEA) agents, who found a large amount of
cocaine in his carry-on luggage. See 490 U.S. at 3. The DEA agents
had the following information before approaching the defendant: (1)
he paid $2,100 cash for two airplane tickets from a roll of $20 bills;
(2) he traveled under a name that did not match the name under which
his telephone number was listed; (3) his original destination was
Miami, a source city for illicit drugs; (4) he stayed in Miami only
forty-eight hours, even though a round-trip flight from Honolulu takes
twenty hours; (5) he appeared nervous during his trip; and (6) he
checked none of his luggage. See id. The Court emphasized the neces-
sity of considering the totality of the circumstances in order to evalu-
ate the existence of reasonable suspicion. See id. at 8. The Court
attached particular significance to the defendant's payment of cash, to
the length of his trip, and to the agents' reasonable belief that he was
traveling under an alias, considering these facts as"out of the ordi-
nary." Id. at 8-9. Thus, as applied to this case, Sokolow teaches that
it is not enough that Trooper Lawson could articulate factors underly-
ing his decision to instruct Brugal to pull his vehicle over to the
shoulder of the road if Trooper Lawson's articulated factors are not
probative of behavior in which few innocent people would engage.
The articulated factors together must serve to eliminate a substantial
10
portion of innocent travelers before the requirement of reasonable
suspicion will be satisfied.
Trooper Lawson's decision to instruct Brugal to pull his vehicle
over to the shoulder of the road was based on the following circum-
stances: (1) Interstate 95 is a major thoroughfare for narcotics traf-
ficking; (2) Brugal exited Interstate 95 after passing two well-lit
decoy drug checkpoint signs; (3) Brugal had a New York State driv-
er's license; (4) Brugal rented the vehicle in Miami; (5) the rental
agreement indicated that Brugal had a New York City address; (6) a
common practice of drug couriers is to fly to Miami, acquire drugs,
rent a vehicle, and drive north; (7) Brugal indicated that he was
searching for gas even though his vehicle had a quarter of a tank of
gas; (8) Brugal just passed an exit, Exit 21, with several well-lit
twenty-four hour gas stations; (9) the gas station referred to by the
travel advisory sign cannot be seen from Interstate 95, and the area
around Exit 22 showed no signs of activity at 3:30 a.m.; (10) the
defendants were traveling at 3:30 a.m.; and (11) Brugal and his pas-
sengers only had three small bags which, according to Trooper Law-
son, was insufficient luggage for three persons, two males and one
female, traveling from Miami to Virginia Beach.
In their totality, the factors articulated by Trooper Lawson elimi-
nate a substantial portion of innocent travelers; therefore, Trooper
Lawson possessed reasonable suspicion to instruct Brugal to pull his
vehicle over to the shoulder of the road to conduct a further investiga-
tion. Trooper Lawson observed Brugal exit Interstate 95 immediately
after passing two decoy drug checkpoint signs that were illuminated.
If the area around the exit following the decoy drug checkpoint signs
showed signs of activity at 3:30 a.m., an indication that hotels, conve-
nience stores, and gas stations were in operation, a limited signifi-
cance could attach to leaving Interstate 95 at such an exit. But, the
area around Exit 22 showed no signs of activity at 3:30 a.m. Because
the area around Exit 22 showed no signs of activity at 3:30 a.m., Bru-
gal's selection of this exit militates strongly in favor of finding rea-
sonable suspicion. Cf. Wardlow, 120 S. Ct. at 676 ("Headlong flight
--wherever it occurs--is the consummate act of evasion: it is not nec-
essarily indicative of wrongdoing, but it is certainly suggestive of
such.").
11
At the checkpoint, Brugal produced a New York State driver's
license. Brugal also produced a rental agreement indicating that he
rented the vehicle in Miami, that he had a New York City address,
and that the vehicle was to be returned to Miami on November 6,
1997. While reviewing Brugal's driver's license and rental agreement,
Trooper Lawson asked Brugal why he had left the interstate and
where he was headed. Brugal responded that he needed gas and was
headed to Virginia Beach. During his questioning of Brugal, Trooper
Lawson noticed that the vehicle had a quarter of a tank of gas and
three pieces of luggage in the rear cargo area.
At this point, based on his knowledge and experience, Trooper
Lawson, who had been a state trooper for eighteen years, had reason-
able grounds to conclude that Brugal fit the profile of a drug courier
from New York City who flew to Miami, rented a vehicle, and was
attempting to return to New York City with drugs. Trooper Lawson
testified that, based on his knowledge and experience, drug couriers
fly to Miami from a northern destination, such as New York, to obtain
drugs, rent a vehicle, and return north with the drugs. Admittedly,
standing alone, there is nothing atypical about an individual from
New York City renting a vehicle in Miami. We are sure many indi-
viduals from New York City do so. So these two facts, New York
City resident and vehicle rental in Miami, standing alone, do not sup-
port the inference that Brugal was a drug courier who flew from New
York City to Miami. However, these two facts must be considered
with other facts observed by Trooper Lawson. Brugal's vehicle was
stopped in South Carolina while traveling northbound on Interstate 95
from Miami at 3:30 a.m. Neither party disputes that Interstate 95 is
a major drug thoroughfare and that Miami is a source city for drugs.
At the checkpoint, Brugal informed Trooper Lawson that he was
looking for gas. Although Interstate 95 contained a traveler's advisory
sign for a gas station, three circumstances keep suspicions high. First
and critically, Brugal chose to exit Interstate 95 at Exit 22, the first
exit after the two decoy drug checkpoint signs. Second, the area
around Exit 22 showed no signs of activity at 3:30 a.m. Third, Bru-
gal's vehicle had at least a quarter of a tank of gas, and Brugal just
passed an exit, Exit 21, with several well-lit twenty-four hour gas sta-
tions. In light of these facts, any reasonable officer would remain
suspicious of the driver's activities. In other words, a reasonable offi-
cer could conclude that few innocent travelers from New York City
12
are traveling northbound on Interstate 95 in South Carolina at 3:30
a.m. in a vehicle rented in Miami fourteen hours earlier, exiting the
interstate after passing two decoy drug checkpoint signs, and looking
for gas at an exit that shows no signs of activity, even though they had
just passed three well-lit gas stations and had at least a quarter of a
tank of gas. In short, given the deference that this court is required to
give Trooper Lawson's experience, see Lender, 985 F.2d at 154,
Trooper Lawson's conclusion that Brugal fit the profile of a drug cou-
rier from New York City who flew to Miami, rented a vehicle, and
was attempting to return to New York City with drugs was eminently
reasonable.
The reasonable conclusion that Trooper Lawson drew from his
observations creates a rather out of the ordinary travel scenario for
Brugal. Why would an individual from New York City fly to Miami,
rent a vehicle, and drive to Virginia Beach? Obviously, one can con-
ceive of instances where an individual from New York City would
travel to Miami, rent a vehicle, and drive to Virginia Beach. For
example, an individual from New York City could be driving an indi-
vidual from Miami who wished to go to Virginia Beach and did not
like to fly, ride on a train, ride on a bus, or drive alone. However,
common sense tells us that it is significantly more probable that Bru-
gal flew from New York City to Miami, a source city for drugs,
acquired drugs, and, instead of flying with the drugs on an airplane,
rented a vehicle in Miami to transport the drugs to New York City.
See Wardlow, 120 S. Ct. at 676 ("[T]he determination of reasonable
suspicion must be based on commonsense judgments and inferences
about human behavior.").
Under Sokolow, an officer's articulated factors in their totality must
serve to eliminate a substantial portion of innocent travelers before
the requirement of reasonable suspicion will be satisfied. See 490
U.S. at 7-11. In this case, Trooper Lawson's articulated factors met
this burden. Indeed, few, if any, innocent individuals from New York
City, fly to Miami, rent a vehicle to drive to Virginia Beach, proceed
to drive most of the day and night on Interstate 95, exit the interstate
after passing two decoy drug checkpoint signs, and look for gas at an
exit that shows no signs of activity at 3:30 a.m., when they have just
passed three well-lit gas stations and have at least a quarter of a tank
of gas. Because Trooper Lawson had a reasonable suspicion that
13
criminal activity was afoot when he directed Brugal to pull his vehicle
over to the shoulder of the road, we see nothing constitutionally
infirm about the defendants' continued seizure which permitted
Trooper Lawson to conduct a further investigation into their activities
and to request Brugal's consent to search.7
D
We now turn to the validity of Brugal's consent to the search. "A
defendant who voluntarily consents to a search waives his Fourth
Amendment rights, and the police officer may conduct the search
without probable cause or a warrant." United States v. Perrin, 45 F.3d
869, 875 (4th Cir. 1995); see also Schneckloth v. Bustamonte, 412
U.S. 218, 235 (1973). In assessing the voluntariness of an individual's
consent, we examine the totality of the circumstances. See United
States v. Mendenhall, 446 U.S. 544, 557 (1980); Schneckloth, 412
_________________________________________________________________
7 The defendants suggest that the rental agreement's duration (one
week) and vehicle drop off point (Miami) are not indicative of criminal
activity and negate any inference of criminal activity raised by their other
conduct. We agree that a one week round-trip rental is not necessarily
indicative of criminal activity. But, it certainly can be. For example, Bru-
gal's plan could have been to fly to Miami, buy drugs, rent a vehicle with
a one week round-trip rental agreement, drive to New York City, con-
summate a deal, and drop the vehicle off at any Alamo Rent-A-Car
counter in New York City and pay the attendant drop-off penalty. Alter-
natively, Brugal's plan could have been to fly to Miami, acquire the
drugs on the front, rent a vehicle with a one week round-trip rental agree-
ment, and drive to New York City with the drugs. After consummating
a deal in New York City, Brugal would then drive to Miami instead of
boarding a plane with the large amount of cash generated by a deal
involving approximately eight kilograms of cocaine and one kilogram of
heroin. We do not agree, however, with the defendants' suggestion that
the rental agreement's duration and vehicle drop off point negate any
inference of criminal activity raised by their other conduct. Because Bru-
gal's conduct could plausibly fit within one of the two alternative expla-
nations described above, the rental agreement's duration and vehicle
drop off point do not resolve the questions raised by Brugal's highly
suspicious, out-of-the-ordinary conduct. Therefore, Terry permitted
Trooper Lawson to detain the defendants further"to resolve the ambigu-
ity." Wardlow, 120 S. Ct. at 677.
14
U.S. at 227. Appropriate factors to consider include"the characteris-
tics of the accused (such as age, maturity, education, intelligence, and
experience) as well as the conditions under which the consent to
search was given (such as the officer's conduct; the number of offi-
cers present; and the duration, location, and time of the encounter)."
United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). The gov-
ernment need not produce evidence that the defendant"knew of his
right to refuse consent to prove that the consent was voluntary." Id.
After Brugal pulled his vehicle over to the shoulder of the road,
Trooper Lawson pulled his unmarked police cruiser behind Brugal's
vehicle and activated the video camera mounted on the dashboard.
Trooper Lawson then approached Brugal's vehicle and asked Brugal
to "come out and talk to [him] for a minute." Brugal immediately
exited his vehicle and walked with Trooper Lawson to the back of his
(Brugal's) vehicle. Trooper Lawson momentarily returned to his
cruiser to illuminate the cruiser's headlights. After doing this, Trooper
Lawson approached Brugal and, while examining the rental agree-
ment, asked him if he rented the vehicle in Miami, and Brugal
responded in the affirmative. Brugal also indicated that he had just
moved there from New York City. Trooper Lawson asked Brugal if
he had weapons, drugs, or anything illegal in his vehicle, and Brugal
responded that he did not. Trooper Lawson then asked Brugal if he
could search the vehicle, and Brugal responded "no problem."
Trooper Lawson repeated his request to search and, again, Brugal
responded "no problem."
Nothing in the record suggests that Brugal did not voluntarily con-
sent to the search. Indeed, no evidence suggests that the police used
coercive tactics to gain Brugal's consent. See United States v. Gonza-
lez, 71 F.3d 819, 828 (11th Cir. 1996) (explaining that "the absence
of official coercion is a sine qua non of effective consent"). Under the
facts of this case, the search of Brugal's vehicle was consensual and
consistent with the Fourth Amendment. See, e.g. , United States v.
Wilson, 895 F.2d 168, 172 (4th Cir. 1990) (holding that the defen-
dant's consent, which was given when the defendant shrugged his
shoulders and raised his arms in response to the officer's request to
pat the defendant down, was voluntary because the officer was
dressed in plain clothes, made no threats, displayed no weapons, and
asked for consent in public).
15
E
Finally, we must address the logic of the opinion concurring in the
judgment. In his opinion, Judge Luttig concludes that the search was
permissible because Brugal's consent was obtained during a consen-
sual encounter between Brugal and Trooper Lawson. His conclusion
is premised on two propositions. First, his conclusion is premised on
the proposition that the purposes of the checkpoint--verification of a
valid driver's license and vehicle registration--were fulfilled after,
not before, Trooper Lawson instructed Brugal to pull his vehicle over
to the shoulder of the road. Second, his conclusion is premised on the
proposition that Trooper Lawson returned Brugal's rental agreement
before his consent was given. We will address each of these proposi-
tions in turn.
A review of the record, in particular the district court's opinion,
leads to the inexorable conclusion that the purposes of the checkpoint
--verification of a valid driver's license and vehicle registration--
were fulfilled before Trooper Lawson instructed Brugal to pull his
vehicle over to the shoulder of the road. In its opinion, the district
court opined that reasonable suspicion was necessary to justify the
"second seizure," i.e., Trooper Lawson's decision to instruct Brugal
to pull his vehicle over to the shoulder of the road. The only logical
conclusion to be drawn from the district court's analysis is that the
district court was of the opinion that the purposes of the checkpoint
were fulfilled before the second seizure began; otherwise, the district
court would have examined the case employing an entirely different
analysis. If the district court believed that the purposes of the check-
point were fulfilled after Trooper Lawson instructed Brugal to pull his
vehicle over to the shoulder of the road, the subject of reasonable sus-
picion never would have come up; rather, the district court would
have analyzed whether Trooper Lawson took the necessary steps to
fulfill the purposes of the checkpoint before and after he ordered Bru-
gal to pull his vehicle over to the shoulder of the road.
Our inquiry on this point need not proceed further. However, two
additional points are further instructive. First, the district court's opin-
ion is noticeably devoid of any finding that Trooper Lawson was even
remotely concerned about Brugal's authority to operate the vehicle,
either before or after he requested Brugal to pull his vehicle over to
16
the shoulder of the road; nor did the district court find, or even sug-
gest, that Trooper Lawson's decision to instruct Brugal was motivated
by such a concern. If the district court believed that Trooper Lawson
possessed genuine concerns regarding Brugal's authority to operate
his vehicle, we are confident that the district court would have made
some type of finding that Trooper Lawson harbored such a concern.
We are likewise confident that, if the district court believed that
Trooper Lawson instructed Brugal to pull his vehicle over to the
shoulder of the road to conduct a further investigation into Brugal's
authority to operate his vehicle, the district court would have made a
finding in this regard. However, the district court made it clear in its
order what motivated Trooper Lawson to instruct Brugal to pull his
vehicle over to the shoulder of the road: "[Trooper Lawson] acted on
a hunch that these Defendants were 3 `mules' transporting drugs. He
pulled them over and discovered that he was right." This finding con-
cerning Trooper Lawson's motivation, which by no means is a "sum-
mary observation," post at 24 n.3, is further buttressed by Trooper
Lawson's testimony regarding the eleven factors that made him suspi-
cious of the defendants' activities and his testimony that he only
asked motorists to pull over to the shoulder of the road if he felt there
was "reasonable suspicion, or [he could] gather reasonable suspicion."
Second, the district court made a specific finding that Trooper Law-
son observed that Brugal had a valid driver's license and "was in full
compliance with the terms of the rental contract." This finding sug-
gests that once Trooper Lawson observed that Brugal possessed a
valid driver's license and vehicle registration, the purposes of the
checkpoint were fulfilled.
In the face of the irrefutable conclusion that the purposes of the
checkpoint were fulfilled before Trooper Lawson instructed Brugal to
pull his vehicle over to the shoulder of the road, Judge Luttig con-
cludes otherwise. In so doing, he completely ignores the district
court's factual findings and the import of its legal analysis. Indeed,
Judge Luttig's opinion does not even address the significance of the
district court's findings or legal analysis; instead, he relies on portions
of Trooper Lawson's testimony that were not addressed by the district
court.
According to Judge Luttig, Trooper Lawson must have instructed
Brugal to pull his vehicle over to the shoulder of the road in an effort
17
to ensure that Brugal was legally entitled to operate the vehicle
because he retained Brugal's rental agreement, but returned his driv-
er's license. While acknowledging that Trooper Lawson was never
asked why he retained the rental agreement, but returned Brugal's
driver's license, Judge Luttig suggests that "the most (if not the only)
reasonable inference given the otherwise counterintuitive return of the
driver's license but retention of the rental agreement, is that Lawson
had remaining questions about the validity of that document, the legit-
imacy of Brugal's possession of that document, or the legality of Bru-
gal's possession of the car itself in light of the information that
appeared on that document--none of which would necessarily have
been answered by the facts that Brugal was able to produce a facially
valid driver's license and a rental agreement." Post at 23.
Judge Luttig's retention of the rental agreement/return of the driv-
er's license analysis is seriously flawed, if not"counterintuitive" in its
own right. First and critically, it altogether ignores the legal analysis
engaged in by the district court. As noted above, if the district court
was of the opinion that Trooper Lawson instructed Brugal to pull his
vehicle over to the shoulder of the road in order to ask additional
questions concerning Brugal's authority to operate his vehicle, the
district court would have engaged in a different legal analysis and, at
a minimum, would have made some type of finding in this regard. It
did neither. Second, Judge Luttig's rationale ignores the fact that there
are equally plausible reasons why Trooper Lawson decided to retain
Brugal's rental agreement, but return Brugal's driver's license. For
example, Trooper Lawson testified that a common practice of drug
couriers is to fly to Miami, acquire drugs, rent a vehicle, and drive
north. In light of this testimony, one could reasonably conclude that
Trooper Lawson retained Brugal's rental agreement not because he
wanted to question Brugal regarding his authority to operate the vehi-
cle, but rather, because he wanted to continue to question Brugal to
ascertain whether he was a drug courier. Similarly, Trooper Lawson's
follow-up question--did you rent the vehicle in Miami--which Judge
Luttig suggests confirms Trooper Lawson's motivation--is consistent
with an attempt to ascertain whether Brugal fit a drug courier profile.
Third, Judge Luttig's analysis ignores the district court's finding that
Trooper Lawson instructed Brugal to pull his vehicle over to the
18
shoulder of the road because he "acted on a hunch that these Defen-
dants were 3 `mules' transporting drugs." 8
We now turn to the second proposition supporting Judge Luttig's
conclusion that the search was permissible because Brugal's consent
was obtained during a consensual encounter between Brugal and
Trooper Lawson--that Trooper Lawson returned Brugal's rental
agreement before his consent was given. For this proposition, Judge
Luttig relies on Trooper Lawson's testimony that he returned Brugal's
rental agreement after Brugal stated he had rented the vehicle in
Miami.
_________________________________________________________________
8 It bears reiterating that Judge Luttig reaches the conclusion that the
purposes of the checkpoint were fulfilled after Trooper Lawson ordered
Brugal to pull his vehicle over to the shoulder of the road by completely
ignoring the district court's factual findings and the import of its legal
analysis. Judge Luttig rationalizes that we are not bound by anything the
district court did because the district court did not make a specific find-
ing that the purposes of the checkpoint were fulfilled before Trooper
Lawson instructed Brugal to pull his vehicle over to the shoulder of the
road, even though all of the relevant indicators discussed throughout this
opinion make this fact irrefutable. See post at 25 ("[B]ecause the district
court did not find that the stop had ended before Trooper Lawson ordered
Brugal to pull off the road, we are not bound by anything the district
court might have thought, even if we could divine such."). Needless-to-
say, unlike Judge Luttig, we do not so cavalierly dismiss the import of
the district court's factual findings and its legal analysis; nor do we, as
Judge Luttig does, displace the district court as the trier-of-fact by weigh-
ing the credibility of the witnesses. In fact, we think we have adhered to
well-established principles of appellate review in reaching the conclusion
that the purposes of the checkpoint were fulfilled before Trooper Lawson
ordered Brugal to pull his vehicle over to the shoulder of the road. Cf.
Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996) (en banc) (hold-
ing that the nature of the defendant's complaint, the sua sponte nature of
the district court's dismissal, and the peremptory nature of the district
court's dismissal, lead to the irrefutable conclusion that the district court
dismissed the plaintiff's complaint pursuant to 28 U.S.C. § 1915(d) and
not Federal Rule of Criminal Procedure 12(b)(6) even though the two
sentence dismissal order contained the sentence"[t]he plaintiff now
makes further complaints regarding the defendants, none of which states
a claim for which relief can be granted").
19
It is not entirely clear from the record whether Trooper Lawson
ever returned Brugal's rental agreement, and the district court never
made a finding on this point.9 The defendants vigorously contend that
Trooper Lawson never returned the rental agreement to Brugal, but
Judge Luttig is correct that Trooper Lawson testified that he did. The
video of the encounter does not show that Trooper Lawson did in fact
return the rental agreement. Under these circumstances, neither we,
nor Judge Luttig, are in a position to make a finding that Trooper
Lawson returned Brugal's rental agreement. If we did, we would
encroach upon the province of the district court, something we
decline to do.10
_________________________________________________________________
9 Judge Luttig does not suggest that the district court made a finding on
this point. The district court's failure to do so is understandable. Once the
district court reached the conclusion that the purposes of the checkpoint
were fulfilled before Trooper Lawson instructed Brugal to pull his vehi-
cle over to the shoulder of the road, whether Trooper Lawson returned
Brugal's rental agreement became irrelevant.
10 Judge Luttig states that it is ironic that we do not mention the dissent
in this opinion, but do engage in an "impassioned critique" of his opin-
ion. Post at 27. We fail to see the irony in all of this. The dissent in this
case is two paragraphs long and embraces the reasoning of the now
vacated panel majority opinion. See post at 27-28. Our opinion com-
pletely addresses the reasoning of that now-vacated opinion. But, on the
other hand, Judge Luttig's opinion breaks new ground, concluding that:
(1) the purposes of the checkpoint were not fulfilled before Trooper
Lawson ordered Brugal to pull his vehicle over to the shoulder of the
road; and (2) Trooper Lawson returned Brugal's rental agreement. This
opinion provides us with the first opportunity to respond to these new
conclusions. And, interestingly, the dissent does not in any way, shape,
or form adopt Judge Luttig's conclusions that: (1) the purposes of the
checkpoint were not fulfilled before Trooper Lawson ordered Brugal to
pull his vehicle over to the shoulder of the road; and (2) Trooper Lawson
returned Brugal's rental agreement. Rather, the dissent agrees with us
that the principal question presented in this appeal is whether Trooper
Lawson had a reasonable suspicion that criminal activity was afoot,
namely, the transportation of drugs, at the time he instructed Brugal to
pull his vehicle over to the shoulder of the road. See post at 27-28.
20
III
Because Trooper Lawson possessed reasonable suspicion that
criminal activity was afoot, he was constitutionally entitled to direct
Brugal to pull his vehicle over to the shoulder of the road. Brugal's
subsequent consent to allow Trooper Lawson to search the vehicle
was voluntary, therefore, the evidence seized during the search should
not have been suppressed by the district court. Accordingly, the dis-
trict court's order granting the defendants' motions to suppress is
vacated and the case is remanded for further proceedings consistent
with this opinion.
VACATED AND REMANDED
LUTTIG, Circuit Judge, concurring in the judgment:
If one conceptualizes the initial investigatory detention of Brugal
and Trooper Lawson's subsequent request that Brugal pull his car to
the side of the road as two separate and distinct seizures, as did the
district court and as do the appellees, or if one views the events in
question as but one single seizure and Trooper Lawson's request as
a continuation of that one seizure beyond the completion of the rou-
tine investigatory stop, as does the plurality herein, then I do not
believe that there existed reasonable suspicion sufficient to support
the so-called second seizure or the continuation of the investigatory
stop. In other words, contrary to the view of the plurality, I do not
believe that the circumstances identified by the government and
accepted by the plurality as confirmatory of reasonable suspicion in
fact support such a suspicion. However, based upon the actual record
testimony in this case, it is clear not only that there were not two sep-
arate and distinct seizures, but also that the single seizure that did
occur was, throughout its duration, a valid investigatory stop, for
which no reasonable suspicion was necessary. For this reason, and not
for that relied upon by the plurality, I am satisfied that there was no
violation of the Fourth Amendment, and therefore no need for sup-
pression of the evidence seized pursuant to the indisputably voluntary
consensual search of Brugal's vehicle.
The appellees and the plurality contend, and the district court may
have believed (although it did not so find), that the purposes of the
21
investigatory stop had been fulfilled, and thus that reasonable suspi-
cion was necessary to justify any further detention, at the time
Trooper Lawson asked Brugal to pull from the middle of the lane of
traffic and onto the shoulder of the road. Based upon the record testi-
mony, however, it is plain that the initial investigatory detention,
which, it bears repeating, the appellees themselves concede was law-
ful, remained in progress until Trooper Lawson returned the rental
agreement to Brugal -- well after Lawson asked Brugal to pull to the
side of the road.
The investigatory detention began, as must any routine traffic stop,
with Trooper Lawson asking Brugal for his driver's license and regis-
tration. See J.A. 34.1 Brugal produced his driver's license, but "was
having difficulty finding a registration." J.A. 35. Trooper Lawson saw
that Brugal had a rental agreement for the car, however, and informed
him that the agreement would be sufficient. See J.A. 35 ("I told him
the rental agreement would be fine, instead of a registration.").
Having determined that Brugal's New York driver's license
appeared valid, Trooper Lawson promptly returned the license to Bru-
gal. See J.A. 35. However, having noticed that the rental agreement
showed that a car had been rented in Miami, Trooper Lawson retained
the rental agreement, a document that is considerably more difficult
to examine at a glance in the middle of a lane of traffic, and asked
Brugal to pull his car over to the shoulder of the exit ramp. See J.A.
35 ("I noticed at that time that he had . . . rented the vehicle out of
Miami. I asked him to pull over to the side there and I returned his
driver's license to him at that time, but I kept the rental agreement.
He pulled over.").2
_________________________________________________________________
1 All citations to the joint appendix refer to the testimony of Trooper
Lawson, unless otherwise noted.
2 The district court never focused on whether Trooper Lawson asked or
directed Brugal to pull to the side of the road. The court variously stated
that Trooper Lawson "asked," see J.A. 380, and "ordered," see J.A. 382,
Brugal to pull off the road. Trooper Lawson testified that he merely
"asked" Brugal to pull his car out of the lane of traffic. See J.A. 35.
Given Trooper Lawson's unrebutted testimony and the absence of any
contrary finding by the district court, I think that the better supported
conclusion is that Lawson merely asked Brugal to pull over and that Bru-
22
Trooper Lawson was never asked below why he retained the rental
agreement, but returned the driver's license -- presumably the very
opposite of what he would do if he had concluded at that moment that
he either was possessed, or would imminently be possessed, of rea-
sonable suspicion that a crime had been committed. However, the
most (if not the only) reasonable inference given the otherwise coun-
terintuitive return of the driver's license but retention of the rental
agreement, is that Lawson had remaining questions about the validity
of that document, the legitimacy of Brugal's possession of that docu-
ment, or the legality of Brugal's possession of the car itself in light
of the information that appeared on that document-- none of which
would necessarily have been answered by the facts that Brugal was
able to produce a facially valid driver's license and a rental agreement
-- and that he was understandably unwilling to attempt to resolve
these questions while standing in the pitch dark, in the middle of an
exit ramp, exposed to moving traffic. As the government poignantly
explains:
It seems obvious why Lawson asked Brugal to pull his vehi-
cle off the exit ramp and onto the adjacent grassy area.
Although it was late and there was little traffic, other vehi-
cles had exited the ramp. It was dangerous for Lawson to be
in the middle of the road with Brugal's vehicle during early
morning hours. No doubt, Lawson could have told Brugal
to pull off the road immediately after approaching the vehi-
cle for his safety, as well as that of Brugal and his passen-
gers.
Appellant's Br. at 11 n.7.
That Trooper Lawson asked Brugal to pull out of the lane of traffic
for the specific purpose of completing the limited investigatory stop
_________________________________________________________________
gal was, at that point, free to leave. However, my analysis does not hinge
on the fact that Trooper Lawson merely requested that Brugal pull over.
Given that the investigatory stop was still underway at the time Brugal
pulled off the road, even an order directing him to do so would have been
justifiable as necessary to the safe and complete fulfillment of the pur-
poses of such a stop.
23
is confirmed by two significant facts. First, the question that Trooper
Lawson asked Brugal immediately after asking him to pull off the
road, but before returning the rental agreement to him, was designed
to elicit further information relevant to the rental agreement, specifi-
cally whether Brugal had in fact rented the car in Miami, as the docu-
mentation showed: "I asked him where he was . . . coming from . . . ."
See J.A. 35. And, second, of utmost significance, once Trooper Law-
son asked this follow-up question and, from Brugal's answer to that
question, determined that there was nothing to suggest that the rental
agreement was anything other than genuine and valid, Lawson
promptly returned the rental agreement to Brugal, see J.A. 36, as he
had earlier returned Brugal's driver's license, freeing Brugal to con-
tinue on his way.3
Although for some reason the plurality is, itself, absolutely con-
vinced that Trooper Lawson had completed the investigatory stop
before he asked Brugal to pull over to the side of the road, it cannot
and does not contend that the district court so found. The plurality
maintains only that the district court must have believed that the stop
was completed. See ante at 16 ("The only logical conclusion to be
drawn from the district court's analysis is that the district court was
of the opinion that the purposes of the checkpoint were fulfilled
_________________________________________________________________
3 The plurality apparently believes that the district court's remark that
"[Trooper Lawson] acted on a hunch that these defendants were 3
`mules' transporting drugs," J.A. 390, constitutes a "finding concerning
Trooper Lawson's motivation," ante at 17; see also ante at 4 n.3. Read
in context, however, it is plain that the district court's statement on which
the plurality relies is not a factual finding to which we owe deference,
as the plurality suggests. The statement is nothing more than a summary
observation following the district court's legal analysis, not a finding of
fact. And, insofar as an appellate court is concerned, it is the absence of
a finding per se on this question that is significant; it is not for us to make
inferences concerning the district court's subjective state of mind in the
absence of findings.
In any event, and more importantly, that Trooper Lawson may have
been possessed of a hunch regarding the defendants says nothing at all
as to whether he did or did not have further questions that fell within the
scope of a permissible investigatory stop at the time he ordered Brugal
to pull off the road.
24
before the second seizure began.") (emphasis added); ante at 16, 17
(calling "inexorable" and "irrefutable" the conclusion that the pur-
poses of the checkpoint were fulfilled before Trooper Lawson ordered
Brugal to pull off the road). And notwithstanding the plurality's con-
fidence in its ability to discern the unstated view of the district court,
the district court simply did not make any finding as to when the pur-
poses of the stop were fulfilled; the district court stated only that
"Trooper Lawson saw that Brugal had rented the car in Miami and
was in full compliance with the terms of the rental contract." J.A. 379.
The footnote to that sentence recites specifically what the district
court found that Trooper Lawson had observed:
Specifically, the contract was fully paid, was valid until
November 6, 1997, listed Brugal as the only authorized
driver, and required that the car be returned to Miami.
J.A. 379 n.3. The district court thus most certainly did not find that
the purposes of the investigatory stop had been completed. And just
as with the question whether the district court found that Trooper
Lawson acted on a "hunch" that the defendants were drug couriers,
it bears emphasis that, on the question whether the stop had ended,
form and substance merge. That is, because the district court did not
find that the stop had ended before Trooper Lawson ordered Brugal
to pull off the road, we are not bound by anything the district court
might have thought, even if we could divine such.
Moreover, the "equally plausible" explanations offered by the plu-
rality to account for Trooper Lawson's decision to return Brugal's
license, but to retain his rental agreement, see ante at 18, are anything
but "equally" plausible. The plurality posits that, because it is a com-
mon practice for drug dealers to fly to Miami, rent a car there, and
drive north with drugs, Trooper Lawson may have retained Brugal's
driver's license, and asked his follow-up question, to ascertain
whether Brugal was a drug courier. See ante at 18. However, contrary
to the plurality's representations, this account in no way explains the
decision to return the license but to retain the rental agreement. It is
true that the rental agreement goes to one element of drug courier
behavior noted above: renting a car in Miami. But the driver's license
was equally relevant to ascertaining whether Brugal fit that profile, as
it showed that he most likely traveled to Miami from somewhere else
25
-- New York. Moreover, if Trooper Lawson's concern was simply to
detain Brugal because he suspected illegal behavior, he presumably
would not have returned Brugal's driver's license. If the retention of
any one document was more likely to keep Brugal from fleeing,
surely that one document was the license, and not the rental agree-
ment.
Because it is apparent that Trooper Lawson asked Brugal to pull
out of the lane of traffic for the limited purposes of examining Bru-
gal's rental agreement and asking any necessary follow-up questions
relevant to that document -- and appellees do not even suggest that
these purposes were pretextual -- it is evident that the investigatory
stop did not end until Trooper Lawson returned Brugal's rental agree-
ment, having determined that all was in order with respect to that doc-
ument. At that moment, and not before, did the traffic stop conclude.
Appellees wisely (because the record would not support such) and
tactically (because to do so would direct attention to the single factor
that establishes the continuity of the stop) do not even contend that
the investigatory stop ended, and that they were seized again, con-
structively, when Trooper Lawson returned Brugal's driver's license
but withheld return of the rental agreement. To hold, as appellees do
urge, that the lawful investigatory stop ended upon Trooper Lawson's
return of Brugal's driver's license and that a second unlawful seizure
began simply because Lawson asked Brugal to pull to a safe location
out of the lane of traffic in order to examine Brugal's vehicle docu-
mentation, would be not just to withhold from law enforcement offi-
cers the very authority they must have to effectuate the purposes of
the investigatory stop -- the authority to pose those questions neces-
sary to determine that the vehicle is in full compliance with the law
-- but the authority they must have to ensure that compliance without
jeopardy to their own life or limb.
Of course, following Lawson's return of the rental agreement to
Brugal, Brugal was not even arguably further detained without his
consent. After returning the rental agreement, Trooper Lawson did
ask Brugal whether there were any weapons or drugs in the car. See
J.A. 38 ("I returned his rental agreement and asked him if he had any
drugs or weapons in the vehicle."). At that point, however, by all
objective measures, Brugal was not being detained and was free to
26
leave, and there is nothing in the record that even hints that Brugal
himself did not understand as much. And it was immediately after this
question that Trooper Lawson asked Brugal -- who obviously still
remained free to leave -- for permission to search the car, and, in
response, twice received Brugal's unequivocal consent. See J.A. 39
("I asked him since you don't have any drugs or weapons in your
vehicle do you mind if we search your vehicle? . . .. He said, no prob-
lem. I asked him a second time. He said, no problem.").
Accordingly, given that Trooper Lawson never exceeded the per-
missible scope of a lawful investigatory stop and that the drugs at
issue were discovered as a result of a consensual search of Brugal's
car which was conducted at a time when the appellees were unques-
tionably free to leave, it is apparent that no violation of the Fourth
Amendment occurred and that the drugs were therefore wrongfully
suppressed by the district court. For these reasons would I reverse the
judgment under review.
And lest the more casual reader be confused by the plurality's iron-
ically impassioned critique of my analysis (in contrast, the plurality
does not even as much as mention the dissent), it bears reminding
that, were the plurality to prevail in its efforts to convince me that the
investigatory stop had indeed ended before Trooper Lawson asked
Brugal to pull over to the side of the road, I would not, as the plurality
evidently believes, join its opinion. I would instead join Judge
Murnaghan's dissent, because, as I state above, I am firmly of the
view that reasonable suspicion did not exist to justify any further
detention beyond that necessary to complete the lawful investigatory
stop.
Judge Williams joins in this opinion.
MURNAGHAN, Circuit Judge, dissenting:
I respectfully dissent for the reasons stated in the panel majority
opinion. United States v. Brugal, 185 F.3d 205 (4th Cir. 1999). Brugal
was lawfully detained at a traffic checkpoint. After Brugal produced
a valid driver's license and vehicle rental agreement, the police
retained the rental agreement and instructed Brugal to pull his car
onto the shoulder of the highway. The continued detention of Brugal
27
was lawful only if the police possessed reasonable suspicion that
criminal activity was afoot.
I agree with the district court that the factors relied upon by the
officers do not add up to reasonable suspicion and do not serve to pro-
tect a substantial portion of innocent travelers from the intrusion of
a police investigation. I must conclude, therefore, that Brugal's con-
tinued detention was unconstitutional, and I would accordingly affirm
the suppression of the evidence subsequently found in the defendant's
trunk.
Judges Widener, Michael and Motz join in this dissent.
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