"THE FEDERAL CORNER"
Will the Fifth Circuit Change its Opinion in Pack or Grant En Banc Review?
F. R. (Buck) Files, Jr.
The Facts That Are So Very, Very Common
Forgetful Frankie was driving an automobile with out-of-state plates on an interstate highway in Texas. His passenger was Nervous Nellie. DPS Trooper Harry Hunch was working traffic and noted that Forgetful Frankie was speeding -- 78 miles per hour in a 70 mile per hour zone.
Trooper Hunch turned on his overhead lights and Forgetful Frankie quickly stopped his automobile on the improved shoulder of the highway. Nervous Nellie began to panic. Trooper Hunch directed Forgetful Frankie and Nervous Nellie to produce their driver's licenses. He called in their identifying data and waited for a reply. Would either of them have a criminal history? Would Forgetful Frankie be driving a stolen automobile? He then told Forgetful Frankie to step to the rear of the automobile. Trooper Hunch issued Forgetful Frankie a warning ticket and then, while waiting for a response from his computer inquiry, began to ask him questions:
- Where did he live?
- Where had he been?
- Where was he going?
Forgetful Frankie, after having some difficulty remembering some of the details, answered Trooper Hunch's questions. Trooper Hunch then went to the passenger's side of the automobile and began to question Nervous Nellie. She was shaking visibly and had difficulty answering the same questions that Trooper Hunch had asked of Forgetful Frankie. The answers which she did give were totally inconsistent with the answers that Forgetful Frankie had given.
Even though a computer check of the driver's licenses of Forgetful Frankie and Nervous Nellie revealed no prior convictions or outstanding warrants for either of them and that the automobile was not stolen. The wheels began to turn in Trooper Hunch's brain. The driver and the passenger had given grossly inconsistent answers to his questions and the passenger was visibly nervous. Additionally, they were travelling on an interstate highway frequented by drug traffickers. Trooper Hunch immediately concluded that he had more than a hunch - he had reasonable suspicion to detain Forgetful Frankie and Nervous Nellie for a reasonable amount of time in order that he could investigate the possibility that they were carrying contraband.
Eventually, Forgetful Frankie gave consent to a search of the vehicle or a drug dog was brought to the scene - take your pick - and drugs were discovered. Forgetful Frankie and Nervous Nellie were arrested and indicted. They filed their motions to suppress the evidence and the district judge ruled. The losing party appealed and the Fifth Circuit handed down yet another opinion on this Fourth Amendment issue.
The Facts Remain the Same - But the Law Changes
Forgetful Frankie's and Nervous Nellie's facts are similar to the facts in a number of cases in which Fourth Amendment issues have been raised by good lawyers as they complained about law enforcement officers exceeding the purpose of the traffic stops which brought them into contact with citizens. The problem is that the facts continue to be basically the same, but the law in the Fifth Circuit continues to change.
United States v. Dortch, 199 F.3d 193, 198-199 (5th Cir. 1999)
In 1999, when presented with a similar fact situation (traffic violation + inconsistent statements + nervousness), a panel of the Circuit [Judges Smith, Benavides and Garwood (dissenting)] held that the continued detention of the defendant after a legitimate justification for a traffic stop had ended was an unreasonable seizure. The Court also found that the law enforcement officers had no reasonable or articulable suspicion that the defendant was transporting drugs; rather, they were concerned that the automobile might have been stolen.
United States v. Brigham, 382 F.3d 500, 510-511 (5th Cir. 2004)
In 2004, after panels of the Circuit in United States v. Jones, 234 F.3d 234 (5th Cir. 2000) and United States v. Santiago, 310 F.3d 336 (5th Cir. 2002) relied on Dortch as authority, the en banc Court reviewed a case involving a variation of the fact situation in Dortch: Traffic violation + inconsistent statements + nervousness + a fictitious ID card presented by the driver.
Writing for the en banc Court, Judge Jones' opinion contains, in part, the following:
First, the dissent extends three of this court's traffic stop cases well beyond their facts and reasoning. See Dortch, 195 F.3d at 195-201; Jones, 234 F.3d at 236-43; United States v. Santiago, 310 F.3d 336, 337-42 (5th Cir.2002). In each case, following an initially valid traffic stop, patrol officers obtained negative results on computerized driver's license and vehicle registration checks but continued to detain the drivers without reasonable suspicion until they received consent to search the cars. This court suppressed evidence of illegal drugs turned up by the searches. The panel and the dissent interpret these cases to support a conclusion that Conklin's questioning about the occupants' itinerary was 'unrelated' to any stolen rental car issue and unduly prolonged their detention. As a result, the dissent would apply these prior cases to limit the quantity, scope and timing of questions that may be asked during a stop.
With due respect to our colleagues, these cases set up no such inflexible rules. The cases are about timing and sequence: after the computer checks came up 'clean,' there remained no reasonable suspicion of wrongdoing by the vehicle occupants. Continued questioning thereafter unconstitutionally prolonged the detentions. See also United States v. Valadez, 267 F.3d 395, 398-99 (5th Cir.2001). Moreover, in Dortch and Jones, the extended detentions were reinforced by the officers' retention of the suspects' drivers' licenses. See Dortch, 199 F.3d at 198; Jones, 234 F.3d at 238. This court has not forbidden questioning that included, inter alia, the drivers' and passengers' itinerary as a legitimate investigatory device in the first instance. None of the cases demands a particular series of questions be asked-or not asked-within the scope of a traffic stop, so long as the overall detention is justified by reasonable suspicion. Moreover, none of these cases implies that questions about the occupants' travel plans are related solely to drug interdiction and therefore necessarily fall outside the scope of a traffic stop. The dissent's implications to the contrary are unsupported by common sense, by the very precedents they rely on, and by the rule that courts may not scrutinize the motives behind otherwise permissible police actions. Whren v. United States, 517 U.S. 806, 811-13, 116 S.Ct. 1769, 1773-74, 135 L.Ed.2d 89 (1996). (Emphasis added)
***
Second, neither our prior cases nor any other case law of which we are aware institutes a per se rule requiring an officer immediately to obtain the driver's license and registration information and initiate the relevant background checks before asking questions. (Emphasis added)
***
Third, by prescribing the scope, duration and order of Conklin's investigation, the dissent would impose a "least intrusive means" test contrary to express statements of the Supreme Court. See Sharpe, 470 U.S. at 687, 105 S.Ct. 1568 ('the fact that the protection of the public might, in the abstract, have been accomplished by "less intrusive" means does not, by itself, render the search unreasonable.') (quoting Cady v. Dombrowski, 413 U.S. 433, 447, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)) (internal quotation marks omitted). Instead, the Court holds, 'the question is not simply whether some other alternative existed, but whether the police acted unreasonably in failing to recognize and pursue it.' Id. Sharpe also cautioned courts against engaging in 'unrealistic second-guessing,' and noted that 'creative judge[s] engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished.' Id. at 686-87, 105 S.Ct. 1568. (Emphasis added)
***
...For the reasons discussed above, we do not presume to prescribe in the abstract the scope of questioning, investigative techniques, or length of permissible detention that may be undertaken following a valid traffic stop. The bounds of existing case law are clear, if fact-intensive: a traffic detention may last as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of reasonable suspicion, supported by articulable facts within the officer's professional judgment, that emerges during the stop. (Emphasis added)
Id. at 510, 511
Judge DeMoss, in a dissenting opinion in which he was joined by Judges Wiener, Stewart and Dennis, wrote, in part, the following:
...our case law also indicates the other facts-nervousness, lack of eye contact, the authorized driver not being present, and some inconsistent responses to detailed travel questions-are insufficient to support reasonable suspicion of drug trafficking. United States v. Santiago, 310 F.3d 336, 342 (5th Cir.2002); United States v. Valadez, 267 F.3d 395, 396-99 (5th Cir.2001); United States v. Jones, 234 F.3d 234, 241-42 (5th Cir.2000); United States v. Dortch, 199 F.3d 193, 199-200 (5th Cir.1999). (Emphasis added)
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The majority opinion will permit the officer after running a computer check on the registration of the vehicle and getting a 'clean' report to continue to interrogate the driver and occupants about whatever subject he chooses. (Emphasis added)
Id. at 517, 521
Nothing in Brigham indicates an intention of the en banc Court to overrule Dortch.
United States v. Pack, ___ F.3d ___, 2010 WL 2777061 (5th Cir. 2010)
On July 15, 2010, a panel of the Circuit [Judges Garwood, Davis and Dennis (dissenting)] affirmed the defendant's conviction and sentence in a Fourth Amendment case with yet another Dortch fact situation: Traffic violation + inconsistent statements + nervousness.
Judge Garwood authored the opinion of the Court which contains, in part, the following:
[The Frightening Theme of the Opinion]
When the occupants of a vehicle are nervous and tell such irreconcilable stories to the police, the number of likely explanations for their conduct is limited. Computerized license, registration, and warrant checks quickly explore the possibility that the vehicle is stolen or that its occupants are fugitives from justice. Considering the large volume of contraband that is moved along our major highways on a daily basis, especially in border states like Texas, a reasonable officer could fairly conclude that the most likely single alternative explanation, for the nervousness and irreconcilable stories raising reasonable suspicion of some criminal activity, is that the occupants are carrying contraband, particularly when the stop occurs on a highway that is frequently used by smugglers. Therefore, we think that it is reasonable for an officer confronted with such conduct to detain the occupants for a reasonable amount of time to investigate the possibility that they are carrying contraband. (Emphasis added)
[Note: No internal page numbers are available]
[Doing Away with the Dortch Requirement of "Particularized Suspicion" of a Specific Crime]
In Dortch similar facts had not been sufficient to establish reasonable suspicion that justified detaining the defendant. Instead, the Dortch panel had held that its facts suggested only that the vehicle had been stolen, not that the defendant was trafficking in drugs. See Dortch, 199 F.3d at 199. Therefore, the Dortch majority had reasoned, the defendant should have been released after the routine computer checks revealed that the vehicle had not been stolen. Id. In Brigham, however, we held that similar facts allowed the police to investigate not only the stolen car theory, but also the possibility that the occupants were carrying contraband. See Brigham, 382 F.3d at 509 & n. 8. It did not matter that there was no direct evidence that suggested the occupants were carrying contraband. See id. The facts suggested that something illegal was afoot, so the police were entitled, as long they acted with reasonable diligence, to pursue several plausible theories in attempting to resolve the suspicion that reasonably had been created by the absence of the authorized driver, the inconsistent stories, the nervousness, and the presentation of a fake identification card. See id. As Judge DeMoss noted in his dissent, the majority reached its finding of reasonable suspicion in Brigham by discarding Dortch 's requirement of 'particularized suspicion' of a specific crime. See Brigham, 382 F.3d at 517 (DeMoss, J., dissenting). Therefore, we hold that Brigham should be read as having abrogated Dortch's requirement of 'particularized suspicion' of a specific crime, in the sense of something like or generally equivalent to direct evidence of a particular, specific offense. (Emphasis added)
[Note: No internal page numbers are available]
[The Court's Summary of the Opinion]
To summarize, we decline to hold that the inconsistent stories in Pack's case do not suffice to create a reasonable suspicion of criminal activity for three reasons. First, the Government relies on a combination of several factors to establish reasonable suspicion rather than on the inconsistent stories alone. Second, the cases that held that inconsistent stories were insufficient relied on the Dortch version of 'particularized suspicion' and thus were abrogated by Brigham. Third, we find that the inconsistencies in the cases that found no reasonable suspicion because the conflicting stories were an insufficient basis, involved essentially minor inconsistencies which were not as serious or so likely intentionally deceptive as those found in Pack's case.
[Note: No internal page numbers are available]
[From the Dissent]
In his dissenting opinion, Judge Dennis writes, in part,
In addition to the errors discussed above, the majority opinion, in my view, also misreads and misapplies several of our circuit precedents. As the majority recognizes, we held in Dortch, 199 F.3d 193, that the bare fact that motorists were traveling on an interstate highway, combined with their 'extreme nervousness and inconsistent stories, [is] not enough to create reasonable suspicion of drug trafficking.' Majority Op. ----. Yet these are the precise and exclusive facts from which the majority finds 'reasonable suspicion' in the instant case for the first time from a cold record on appeal. Tacitly conceding its inability to distinguish Dortch from the present case, the majority tries to circumvent it by arguing that Dortch was overruled by Brigham, 382 F.3d 500. But this argument lacks persuasive merit. (Emphasis added)
Rather than overruling Dortch, Brigham distinguishes and builds upon Dortch, as has been observed by a host of other circuit precedents citing to and applying Dortch following Brigham.See United States v. Cavitt, 550 F.3d 430, 436 (5th Cir.2008) (citing as binding precedent Dortch's analysis that the facts in Dortch do not establish reasonable suspicion); United States v. Khanalizadeh, 493 F.3d 479, 483 (5th Cir.2007) (same); United States v. Jenson, 462 F.3d 399, 404-05 & n. 5 (5th Cir.2006) (holding that the government lacked reasonable suspicion based on the facts of that case in part because '[w]e have previously found detentions unreasonable based on the totality of the circumstances, when the driver exhibited signs of nervousness' (citing Dortch, 199 F.3d at 199-200)). In fact, Brigham positively cites Dortch at least eight times, Brigham, 382 F.3d at 506, 507, 508 & n. 7, 509 & n. 8, 510, 511, including in relation to Dortch's analysis that its facts do not establish reasonable suspicion, id. at 510 (criticizing the dissent for extending Dortch beyond its 'facts and reasoning' on which the majority relied).
Seeming to recognize that its argument is undermined by circuit precedent, the majority also argues that all of the cited cases' discussions of Dortch must be dicta because Dortch and Brigham's holdings are clearly irreconcilable. However, Dortch and Brigham can easily be read together. In Brigham, unlike in Dortch and the instant case, one of the detained suspects produced a fake I.D. This provided much of the officer's basis for reasonable suspicion, justifying the prolonged detention and eventual search. Brigham, 382 F.3d at 505, 509 ('Once Conklin learned that Franklin's I.D. was likely false, Conklin acted reasonably, with further questioning.'). By contrast, Dortch mirrors the facts alleged in the instant case, which the Dortch majority concluded did not establish reasonable suspicion. See 199 F.3d at 196. Therefore, Dortch and Brigham can be reconciled by the obvious truth that concealing one's identity from a police officer by producing a forged document can tip the totality of circumstances toward reasonable suspicion, where an individual's mere inconsistencies and nervousness could not.
[Note: No internal page numbers are available]
The Rest of the Story
On July 16, 2010, Pack's lawyer filed a motion for rehearing and a motion for rehearing en banc. The government filed its response on August 19, 2010, and we are awaiting the Court's decision.
Dortch has been cited as authority in
- 62 opinions handed down by the Fifth Circuit;
- 51 opinions handed down by the district judges of the Circuit; and,
- 15 opinions handed down by Texas Appellate Courts
Nothing in the government's brief or in the government's oral argument in Pack requested the Court to overrule Dortch. The government got more relief than they requested. I agree with Judge Dennis that it is possible to reconcile the opinions in Brigham and Dortch without overruling Dortch. I would not be surprised if the Court grants some relief.
In 1999, there were 66,093 lawyers licensed to practice in Texas. There are now 85,813 lawyers in our state. 19,720 lawyers have been gone to law school, taken the bar examination and been licensed to practice law while the judges of the Court of Appeals for the Fifth Circuit have been trying to decide what to do when confronted with a traffic violation + inconsistent statements by the driver and a passenger + nervousness.
