United States v. Yulian Villavicencio

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4681
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
YULIAN MANUEL VILLAVICENCIO, a/k/a Cristian Rodriguez,
Defendant – Appellant.
No. 18-4725
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ISIDORO PEREZ RIVERO, a/k/a Alexander Martinez.
Defendant – Appellant.
Appeals from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, District Judge. (7:17-cr-00050-D-2; 7:17-cr-00050-D-1)
Argued: April 7, 2020 Decided: August 17, 2020
Before DIAZ and RICHARDSON, Circuit Judges, and Thomas E. JOHNSTON, Chief
United States District Judge for the Southern District of West Virginia, sitting by
designation.
No. 18-4681, affirmed; No. 18-4725, dismissed by unpublished opinion. Judge Johnston
wrote the majority opinion, in which Judge Richardson joined. Judge Diaz wrote a
dissenting opinion.
ARGUED: Kevin Matthew Marcilliat, ROBERTS LAW GROUP, PLLC, Wilmington,
North Carolina, for Appellants. Evan Rikhye, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Aaron Michel,
Charlotte, North Carolina; Raymond C. Tarlton, Raleigh, North Carolina, for Appellants.
Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Banumathi Rangarajan, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
JOHNSTON, District Judge:
This appeal arises from a traffic stop of Yulian Manuel Villavicencio
(“Villavicencio”) and Isidoro Perez Rivero (“Rivero”). A police officer pulled
Villavicencio and Rivero over for speeding. During the traffic stop, the officer asked
Villavicencio travel-related questions not pertinent to the traffic violation. After the
questioning and the issuance of a warning ticket, Rivero consented to a search of the
vehicle, which contained over 100 counterfeit credit cards, a fake identification card, a
wireless scanning device, and a laptop computer containing identifiers for over 1,000 credit
card accounts. Villavicencio and Rivero moved to suppress the evidence recovered from
the search, arguing that the seizure violated the Fourth Amendment because the officer
impermissibly extended the stop to investigate matters unrelated to the traffic violation.
The district court denied the motion. For the following reasons, we affirm.
I.
In May 2017, a grand jury in the United States District Court for the Eastern District
of North Carolina returned a four count indictment charging Villavicencio and Rivero with
production, use, and trafficking of one or more counterfeit access devises and aiding and
abetting of the same, in violation of 18 U.S.C. §§ 1029(a)(1) and 2, possession of 15 or
more counterfeit access devises and aiding and abetting of the same, in violation of 18
U.S.C. §§ 1029(a)(3) and 2, possession of device making equipment and aiding and
abetting of the same, in violation of 18 U.S.C. §§ 1029(a)(4) and 2, and aggravated identity
theft and aiding and abetting of the same, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2.
The defendants filed separate motions to suppress the evidence seized during the traffic
3
stop that resulted in their indictments. The district court held a suppression hearing, during
which Trooper Heidi Wiessman (“Wiessman”) of the North Carolina State Highway
Patrol’s Criminal Interdiction Unit testified. Excerpts from a dashcam video of the traffic
stop were also submitted into evidence. The evidence adduced at the hearing was as
follows.
On February 17, 2016, Wiessman and her partner, Trooper Trey Strickland, were
monitoring traffic on Interstate 95 (“I-95”), a known drug corridor, in Robeson County,
North Carolina. Wiessman was observing southbound traffic from a stationary position in
a marked patrol car. Her cruiser sat on the median adjacent to Strickland’s patrol car,
approximately six miles from the North Carolina-South Carolina border. During her
surveillance, Wiessman observed a black Chevrolet Suburban SUV “traveling at a high
rate of speed.” (J.A. 138.) After confirming with her radar detector that the SUV was
speeding, Wiessman followed the vehicle and initiated a traffic stop. Wiessman’s dashcam
video, which captured the stop and the time of the events, indicates that the traffic stop
commenced at 10:43 a.m.
Instead of pulling over to the right shoulder, the SUV pulled over to the left side of
the road on the edge of the median. Wiessman believed this to be abnormal behavior.
Around 10:44 a.m., Wiessman approached the vehicle from the passenger side and made
several initial observations. First, she noticed that the SUV had Florida license plates and
likely was a rental vehicle because it had “a bar code on the window” and “a single key
hanging from the ignition.” (J.A. 142.) Wiessman also noticed four cell phones and some
4
keys in the center console area, as well as a laptop computer on the rear passenger seat.
Aside from these items, there was not much else visible in the vehicle.
Wiessman then tapped on the window to announce her presence, which appeared to
startle the passengers. The occupants rolled down the passenger window and Wiessman
explained who she was, that she stopped the vehicle for speeding, and asked the driver,
later identified as Villavicencio, for his driver’s license and vehicle registration.
Villavicencio apologized, admitted he was going too fast, and immediately complied by
producing his Florida driver’s license. The passenger, identified as Rivero, told Wiessman
that Villavicencio did not speak very good English. Nonetheless, Wiessman testified that
Villavicencio communicated well with her. Rivero also produced a Florida driver’s license
and volunteered that he and Villavicencio had traveled from Florida to North Carolina and
were on their way back to Florida. Rivero gave Wiessman the rental agreement for the
SUV, at which point Wiessman asked Villavicencio to exit the SUV and accompany her to
her patrol car so that she could check his license and information.
When Villavicencio exited the SUV, Wiessman asked Villavicencio if he had any
weapons on him, and he responded no. Villavicencio also consented to a weapons frisk,
and none were found. Wiessman then instructed Villavicencio to sit in the front passenger
seat of her patrol car and he complied.
At approximately 10:48 a.m., Villavicencio entered the patrol car and Wiessman
began collecting Villavicencio’s information and entering it into the Division of Criminal
Information Network and the National Criminal Information Center. Wiessman explained
that such routine checks are used to confirm that a driver’s license is valid and that there
5
are no outstanding warrants. While running the checks, Wiessman continued to talk to
Villavicencio about his travel itinerary. During their discussion, Wiessman learned that
the men had traveled from Orlando, Florida, but Villavicencio was unable to identify the
town they had visited in North Carolina. Instead, he referred her to the SUV’s GPS and
his hotel receipt. Villavicencio also stated that he and Rivero were in North Carolina to
meet female friends. In addition, he informed Wiessman that he cleaned cars for a rental
car company, which, in Wiessman’s experience, indicated that Villavicencio might be
“connected to some type of drug trafficking.” (J.A. 234–35.)
Wiessman testified that Villavicencio’s behavior suddenly changed when he sat in
the patrol car. His ability to comprehend and speak English declined and his demeanor
became child-like. Wiessman specifically recalled Villavicencio smiling and “recoiling”
towards the door. (J.A. 155.) According to Wiessman, Villavicencio also became
increasingly nervous during their interaction. She nonetheless continued to question
Villavicencio about his travel plans, occasionally mixing English and Spanish terms to
ensure Villavicencio adequately understood what was asked of him and, more importantly,
to ensure that she understood him. Wiessman testified that she became suspicious of
Villavicencio’s inability to understand English because “[h]e was intentionally trying to
demonstrate to [her] that he didn’t understand.” (J.A. 157.) Wiessman explained that he
would respond, “‘What, what?’ And then lean[] back and giv[e] [her an uncanny] smile.”
(Id.)
The minute mark on the dashcam video reflects that the databases returned clean
results, confirming Villavicencio’s driver’s license and the lack of any warrants,
6
approximately five minutes after he sat in Wiessman’s patrol car. Wiessman then began
reviewing the car rental agreement. Upon reviewing the agreement, Wiessman noticed that
the agreement listed the renter’s name as “Isidoro Perez,” rather than “Isidoro Rivero.”
(J.A. 162.) Wiessman also noticed that they had rented the SUV on February 15, 2016, at
11:34 p.m., from the Orlando International Airport, and that it was required to be returned
on February 18, 2016, at 9:00 a.m. Considering the travel time from the location of the
traffic stop in North Carolina to the Orlando airport was approximately 24-26 hours
roundtrip, Wiessman discerned that Villavicencio and Rivero had been in North Carolina
for less than 24 hours. In addition, the rental cost of the SUV was $630.47, which
Wiessman thought was “rather expensive for a one-day trip.” (J.A. 162.) Because
Villavicencio had not articulated specific travel plans and could not identify the town he
and Rivero had visited, Wiessman thought that their travel was out of the ordinary.
Wiessman testified that, at this point, she developed reasonable suspicion that
Villavicencio and Rivero were engaged in criminal activity. According to Wiessman, it
was not just one thing that made her suspicious:
It’s a combination of many things: The anomalies that were present, the facts
that I had that presented themselves to me was—everything from the way the
stop occurred to how they pulled over to [how] they understood English
enough to follow my directions, how they got out of the vehicle and . . .
[were] able to follow my simple commands at that time—and I spoke plain,
simple English—to the fact that the minute [Villavicencio] got in my vehicle,
I noticed that his communication dissipated. It deteriorated. It was just
degrading itself, but it was . . . intentional. And I notice that his mannerisms,
the way that he was acting, the way that he was overly smiling, he was like
just becoming very shifty in his seat. He was moving around. He was
looking at my camera, staring at the camera. Then he’d look back at me and
lean at the window. All these things, the totality of the circumstances, not
7
just one specific thing. But again, in my training and experience, I’m trained
to look at all of these things.
(J.A. 167.) Wiessman also explained that she considered everything she observed,
including the four cell phones in Villavicencio and Rivero’s possession, the lack of visible
luggage or “travel comforts” in the vehicle, (J.A. 168), Villavicencio’s reluctance to
confirm or explain where they were going, who they were with, or where they were staying,
and that Dunn, North Carolina, is not a tourist destination.
Around 11:01 a.m., Wiessman issued a warning ticket to Villavicencio and
informed him that he was not an authorized driver on the rental agreement. She also stated
that she planned to speak to Rivero to let him know that Villavicencio could no longer
drive the SUV and instructed Villavicencio to remain in her patrol car while she spoke to
Rivero. Sometime before issuing the warning ticket, Wiessman called Trooper Strickland
for back-up and decided she would seek consent to search the SUV.
As Wiessman approached the rental car, she noticed that Rivero was talking on a
cell phone and then “hung up real quick.” 1 (J.A. 173.) Wiessman asked Rivero to step out
of the car so that she could speak to him. Rivero understood her request and complied.
Once he exited the car, Wiessman noticed that Rivero’s breathing became heavy and his
English started to decline. Wiessman asked Rivero about the discrepancy between the
rental agreement and his driver’s license, and Rivero confirmed that his full name was
1
Notably, the dashcam recorded Villavicencio making a phone call at that time.
During the call, Villavicencio can be heard telling a male that “she’s going to ask you about
the car. We had it for 10 hours and I came to see a [female] friend.” The other male voice
questions, “[a] [female] friend?”, and Villavicencio responds, “[m]m-hm. Bye.” (J.A. 122.)
8
“Isidoro Perez Rivero.” (J.A. 175.) Wiessman also asked Rivero how long he had known
Villavicencio and where Villavicencio lived to which Rivero responded that Villavicencio
and he were childhood friends. He could not, however, tell her where Villavicencio lived.
When Wiessman asked why the two men had traveled to North Carolina, Rivero simply
shrugged his shoulders and said, “just to look around.” (J.A. 176.) When Wiessman
inquired where the men stayed in North Carolina, Rivero produced a hotel receipt for the
Hampton Inn in Dunn, North Carolina, which showed that the men checked into the hotel
on February 16, the night before the stop, at 11:35 p.m. Wiessman returned the rental
agreement and driver’s license to Rivero and inquired if she could speak to him further to
which he agreed. Wiessman, ultimately, asked Rivero for consent to search the SUV.
Rivero verbally consented and signed a consent to search form.
Upon his arrival, Trooper Strickland conducted a canine search of the vehicle. The
canine did not alert to the presence of narcotics. Wiessman then conducted a search of the
SUV’s interior, during which time she noticed something was amiss with the skirting on
the front passenger seat. She reached down to further inspect the area that appeared to have
been manipulated, noticed it was loose and, with little effort, the skirt fell. Concealed
inside was a baggie with 100 credit cards, a skimming device, a master key for gas pumps,
and a fake identification card for Rivero, bearing Rivero’s picture but in the name of
“Alexander Martinez[.]” (J.A. 182.) The credit cards were also in the name of “Alexander
Martinez” as well as “Christian Rodriguez.” (J.A. 182-83.)
Wiessman returned to her patrol car to retrieve her phone, which she found under
the front passenger seat. Next to her phone, she discovered a driver’s license depicting
9
Villavicencio and bearing the name “Christian Rodriguez.” (J.A. 183.) Law enforcement
later searched the laptop from the SUV and discovered about 1,300 credit card numbers on
the computer.
After hearing the evidence and oral argument, the district court announced its
findings of fact and conclusions of law on the record and denied the defendants’ motions
to suppress. The district court determined:
First, Trooper Wiessman had an objective right to conduct the traffic stop
because the Suburban was exceeding the posted speed limit; second, Trooper
Wiessman proceeded to complete the tasks related to the traffic infraction in
a reasonable and diligent manner under the totality of the circumstances
while simultaneously making unrelated but permissible inquiries; third,
during this process, Trooper Wiessman learned facts upon which she
developed a reasonable suspicion of criminal activity; fourth, Trooper
Wiessman lawfully continued the stop in order to investigate her suspicions,
including speaking with Rivero; and fifth, when Trooper Wiessman’s
reasonable suspicions did not dissipate but actually increased, she requested
and obtained consent to search the vehicle after which the stop was continued
to its completion.
(J.A. 285.) In reaching these conclusions, the district court expressly credited Wiessman’s
testimony and noted her extensive history in law enforcement, including patrolling I-95, a
known drug corridor. The court also noted that it had reviewed the dashcam footage from
Wiessman’s patrol car and the time markings indicated on the video. Following the
suppression hearing, the district court entered a one-page order denying the motions for the
reasons explained at the hearing.
Subsequently, Villavicencio and Rivero entered conditional guilty pleas, pursuant
to separate plea agreements, to counts one and four of the indictment for producing, using,
and trafficking one or more counterfeit access devices, and aggravated identity theft. Both
10
plea agreements reserved the defendants’ right to appeal the district court’s order denying
their motions to suppress the evidence seized by law enforcement during the traffic stop.
The district court accepted the pleas and, ultimately, sentenced each defendant to 72
months’ imprisonment. The defendants timely appealed.
II.
Given the factual and legal issues are identical, the Court consolidated Villavicencio
and Rivero’s appeals. 2 On appeal, Villavicencio asserts that the district court erred in
denying his motion to suppress because Wiessman unlawfully detained him beyond the
scope and duration necessary to complete the purpose of the stop in violation of the
Fourteenth Amendment. According to Villavicencio, at the time he was issued a warning
ticket for the speeding violation and the mission of the stop was otherwise completed,
Wiessman lacked reasonable suspicion to prolong the stop and investigate matters
unrelated to the traffic infraction. Based on the belief that Wiessman lacked reasonable
2
The Government filed a motion to dismiss Rivero’s appeal on the grounds that he
is a fugitive who has failed to surrender to the authorities. Although Rivero’s counsel was
present for oral argument, we hold that Rivero’s abscondence warrants a dismissal of his
appeal and, accordingly, we grant the Government’s motion. See Jaffe v. Accredited Sur.
& Cas. Co., 294 F.3d 584, 595 (4th Cir. 2002) (explaining, under the fugitive disentitlement
doctrine, “a court may ‘dismiss an appeal . . . if the party seeking relief is a fugitive while
the matter is pending.’” (citing Degen v. United States, 517 U.S. 820, 824, 116 S.Ct. 1777,
135 L.Ed.2d 102 (1996))). Nonetheless, given Rivero’s appeal is consolidated with
Villavicencio’s, the Court’s ruling herein would apply equally to him.
11
suspicion to extend the stop, Villavicencio argues that Rivero’s subsequent consent to the
search of the vehicle was invalid. 3
In reviewing a district court’s denial of a suppression motion, the Court reviews
factual findings for clear error and legal conclusions de novo. See United States v.
Drummond, 925 F.3d 681, 687 (4th Cir. 2019) cert. denied, 140 S. Ct. 976 (2020) (internal
quotation marks omitted). In so doing, the Court applies “a de novo standard of review to
a district court’s determination that an officer had reasonable suspicion to prolong a traffic
stop.” United States v. Bowman, 884 F.3d 200, 209 (4th Cir. 2018). The Court construes
the evidence in the light most favorable to the prevailing party, see United States v. Palmer,
820 F.3d 640, 648 (4th Cir. 2016), and gives “due weight to inferences drawn from those
facts by resident judges and law enforcement officers.” United States v. Lewis, 606 F.3d
193, 197 (4th Cir. 2010) (internal quotation marks and citation omitted). Nonetheless, we
are “not limited to the district court’s reasoning,” and may “affirm on any ground supported
3
At oral argument, Villavicencio’s counsel raised a new issue, namely, whether
Wiessman’s line of questioning unrelated to the speeding violation unduly prolonged the
stop prior to the issuance of the warning ticket. Because this issue was not raised in
Villavicencio’s opening brief, we will not address this argument on appeal and hold that
this claim is waived. See, e.g., Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 153 n.4, 6
(4th Cir. 2012) (holding claims not addressed in brief on appeal are waived); Cavallo v.
Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996) (holding argument not raised in
opening brief but raised for the first time in reply brief was waived); United States v.
Williams, 378 F.2d 665, 666 (4th Cir. 1967) (per curiam) (holding issues argued orally but
not addressed in brief were waived); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999) (stating arguments that failed to comply with Federal Rule of Appellate
Procedure 28(a)(9)(A) are waived).
12
by the record.” United States v. Brown, 701 F.3d 120, 125 (4th Cir. 2012) (internal
quotation marks omitted).
III.
It is well-established that “[t]emporary detention of individuals during the stop of
an automobile by the police, even if only for a brief period and for a limited purpose,
constitutes a ‘seizure’” under the Fourth Amendment. Whren v. United States, 517 U.S.
806, 809–10, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996); see also U.S. Const. amend.
IV (protecting “against unreasonable searches and seizures . . . .”). A traffic stop, therefore,
must satisfy the Fourth Amendment’s reasonableness limitation. Whren, 517 U.S. at 810;
United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (stating
that the guarantees under the Fourth Amendment extend to “brief investigatory stops of
persons or vehicles”). In that regard, “[b]ecause a traffic stop is more akin to an
investigative detention than a custodial arrest,” we apply the two-prong standard articulated
in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) in determining whether
a stop is reasonable. United States v. Williams, 808 F.3d 238, 245 (4th Cir. 2015).
Pursuant to Terry, a traffic stop comports with the reasonableness standard of the
Fourth Amendment where (1) the “stop [i]s legitimate at its inception” and (2) “the
officer’s actions during the seizure [are] reasonably related in scope to the basis for the
traffic stop.” Bowman, 884 F.3d at 209 (internal quotation marks and citations omitted).
An initial traffic stop is warranted where an officer has “probable cause to believe that a
traffic violation has occurred.” Whren, 517 U.S. at 810. Nonetheless, “a seizure that is
lawful at its inception can violate the Fourth Amendment if its manner of execution
13
unreasonably infringes interests protected by the Constitution.” Illinois v. Caballes, 543
U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). For instance, “[a] seizure that is
justified solely by the interest in issuing a warning ticket to the driver can become unlawful
if it is prolonged beyond the time reasonably required to complete that mission.” Id.The acceptable duration of a traffic stop “is determined by the seizure’s mission—
to address the traffic violation that warranted the stop and attend to related safety
concerns.” Rodriguez v. United States, 575 U.S. 348, 354, 135 S.Ct. 1609, 1615, 191
L.Ed.2d 492 (2015) (internal quotation marks and citation omitted). Ordinary tasks related
to a traffic stop include “checking the driver’s license, determining whether there are
outstanding warrants against the driver, and inspecting the automobile’s registration and
proof of insurance.” Id. at 349. An officer can also ask about a rental car agreement, as
Villavicencio’s counsel conceded at oral argument. These types of “checks serve the same
objective as enforcement of the traffic code: ensuring that vehicles on the road are operated
safely and responsibly.” Id. In addition, an officer may permissibly ask questions of the
vehicle’s occupants that are unrelated to the violation, provided that doing so does not
prolong the stop absent independent reasonable suspicion. Id. at 355. In assessing the
reasonableness of a stop, we consider “what the police in fact do.” Id. at 357. Thus, the
“critical question” is not whether the unrelated investigation “occurs before or after the
officer issues a ticket,” but whether conducting the unrelated investigation “prolongs—i.e.,
adds time to—the stop.” Id. (internal quotation marks omitted). A traffic stop becomes
unlawful “when tasks tied to the traffic infraction are—or reasonably should have been—
completed.” Id. at 354.
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Villavicencio suggests in his opening brief that the original traffic stop was
pretextually based on a speeding violation, see Appellant’s Br. at 25, 27, but later concedes
that the traffic stop was lawful, see Appellant’s Br. at 30. To the extent Villavicencio
argues that the initial stop was unlawful, this argument was not raised in his motion to
suppress before the district court and, thus, cannot be argued now on appeal. See United
States v. Benton, 523 F.3d 424, 428 (4th Cir. 2008) (“Failure to raise an argument before
the district court typically results in the waiver of that argument on appeal.”). Despite this
assertion, we find that Wiessman had probable cause to initiate the stop based on her
observation of Villavicencio’s vehicle exceeding the speed limit. Having lawfully stopped
the SUV for speeding, Wiessman temporarily detained Villavicencio to perform those tasks
associated with a routine traffic stop. The district court concluded from Wiessman’s
testimony and the dashcam video that the stop occurred around 10:43 a.m. Wiessman
approached the car around 10:44 a.m. and spoke with the occupants for roughly three
minutes. During this time, she explained to Villavicencio that she stopped him for speeding
and asked for his driver’s license and car registration. He complied and produced his
Florida driver’s license.
At this time, Rivero also volunteered his Florida driver’s license, explained that the
car was a rental, and gave her a copy of the rental agreement. Wiessman did not scrutinize
the rental agreement at this moment. Instead, she asked Villavicencio to exit the vehicle
and accompany her to her cruiser to verify his information. Before they got into her patrol
car, Wiessman lawfully and consensually frisked Villavicencio for officer safety. See
Rodriguez, 575 U.S. at 356 (explaining that “officer safety interest stems from the mission
15
of the stop itself”); United States v. Hampton, 628 F.3d 654, 658 (4th Cir. 2010) (an officer
may order passengers to get out of a vehicle pending completion of a traffic stop “as a
precautionary measure, without reasonable suspicion that the passenger poses a safety
risk.”) (citing Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)).
Once seated in the cruiser, around 10:48 a.m., Wiessman began verifying
Villavicencio’s license and checking for outstanding warrants by entering his information
into a local and national database. Wiessman testified that these checks inherently take a
few minutes to complete. In this instance, the checks returned clean results for
Villavicencio in approximately four minutes. While these checks were running, Wiessman
spoke with Villavicencio about his travel itinerary. Wiessman was free to talk to
Villavicencio at least until the moment that all the database checks had been completed.
See Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 783, 172 L. Ed. 2d 694 (2009)
(“[a]n officer’s inquiries into matters unrelated to the” traffic violation “do not convert the
encounter into something other than a lawful seizure, so long as those inquiries do not
measurably extend the duration of the stop.”). During their exchange, Villavicencio was
visibly nervous. Wiessman learned that he and Rivero drove from Florida to North
Carolina to visit girls. Villavicencio could not identify the town they had visited and
became increasingly nervous during their conversation.
Once the database checks were complete, Wiessman began to inspect the rental
agreement. She noted that the name on the agreement did not match Rivero’s. She also
observed that the SUV was rented on February 15, 2016, at 11:34 p.m. and had to be
returned on February 18, 2016, by 9:00 a.m. Given the distance and travel time, Wiessman
16
determined that Villavicencio and Rivero spent approximately 24 hours in North Carolina
before returning to Florida. Around 11:01 a.m., Wiessman completed all necessary tasks
incident to the stop and issued Villavicencio a warning ticket. The question, thus, becomes
whether the information known to Wiessman at the time she issued Villavicencio a warning
ticket yielded reasonable suspicion of criminal activity to extend the stop.
The reasonable suspicion standard requires “‘considerably less than proof of
wrongdoing by a preponderance of the evidence, and obviously less than is necessary for
probable cause.’” Kansas v. Glover, 140 S. Ct. 1183, 1187 (2020) (quoting Prado
Navarette v. California, 572 U.S. 393, 397, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014)). In
order to meet this standard, an “officer’s suspicions must . . . be more than an ‘inchoate
and unparticularized suspicion or hunch’” of criminal activity. United States v. Johnson,
599 F.3d 339, 345 (4th Cir. 2010) (citing Terry, 392 U.S. at 27). Rather, “a police officer
must offer ‘specific and articulable facts’ that demonstrate at least ‘a minimal level of
objective justification’ for the belief that criminal activity is afoot.” Bowman, 884 F.3d at
213 (quoting United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008)). We “‘cannot
reasonably demand scientific certainty . . . where none exists,’” and “must permit officers
to make ‘commonsense judgments and inferences about human behavior.’” Glover, 140
S. Ct. at 1188 (quoting Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d
570 (2000)).
When reviewing whether an officer developed reasonable suspicion, we look at the
totality of the circumstances. Arvizu, 534 U.S. at 274. The possibility that some facts on
their own might be innocently explained does not suffice to defeat a finding of reasonable
17
suspicion if “the articulated factors . . . ‘in their totality serve to eliminate a substantial
portion of innocent travelers.’” Palmer, 820 F.3d at 650 (quoting Williams, 808 F.3d at
246); see also Navarette, 572 U.S. at 403 (noting that an officer “‘need not rule out the
possibility of innocent conduct’”).
In this case, the district court credited the testimony of Wiessman, who had over 25
years of law enforcement training and experience, and concluded that Wiessman
confronted several facts before Villavicencio was issued a warning ticket that in the totality
of the circumstances support a basis for reasonable suspicion of criminal activity. Those
factors include the following: (1) the defendants were traveling through a known drug
corridor; (2) they traveled a long distance and stopped for approximately 24 hours before
returning to Orlando, Florida; (3) Villavicencio oddly pulled over to the left shoulder as
opposed to the right as most drivers do; (4) the defendants were in a rental car with four
cell phones and a laptop computer but no visible luggage; (5) the name on the car’s rental
agreement did not match the name on Rivero’s driver’s license; (6) the cost of the rental
car was $630.47, which Wiessman thought was excessive; (7) the defendants drove to a
remote, non-tourist destination purportedly to visit one or more female friends; (8)
Villavicencio could not identify the town he and Rivero had stayed in the night before; and
(9) he exhibited strange behavior and became increasingly nervous during his interaction
with Wiessman. (J.A. 279–80.) We evaluate these facts both separately and in the
aggregate.
First, Wiessman testified that, based on her knowledge and experience, I-95 had
become a frequent corridor for drugs moving both north and south, primarily between
18
Florida and New York, thus “linking travel on an interstate highway with drug trafficking.”
Williams, 808 F.3d at 248. See United States v. Newland, 246 F. App’x 180, 188 (4th Cir.
2007) (taking judicial notice of the fact that I-95 is “a major thoroughfare for narcotics
trafficking”). Villavicencio’s travel on a major drug trafficking freeway is not highly
probative in and of itself considering the number of innocent motorists that use interstate
highways for convenient travel. See Williams, 808 F.3d at 248 (giving little weight to fact
that defendants were traveling on a known drug corridor). However, when coupled with
the fact that he and Rivero rented the vehicle in a source state for narcotics, Villavicencio’s
travel on I-95 is a valid contribution to the reasonable suspicion analysis. We have “little
doubt” that “the car rental, the traveling on I-95, and the traveling from Florida factors …
enter the reasonable suspicion calculus.” United States v. Digiovanni, 650 F.3d 498, 512
(4th Cir. 2011), abrogated in part on other grounds by Rodriguez, 575 U.S. at 355-57. See
United States v. Brugal, 209 F.3d 353, 358 (4th Cir. 2000) (en banc) (citing travel along I-
95 and departure from a source city as factors contributing to reasonable suspicion); United
States v. Foreman, 369 F.3d 776, 785 (4th Cir. 2004) (characteristics of location in which
the officer encounters vehicle is a significant factor in formulating reasonable suspicion)
(citing United States v. Brignoni–Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607(1975)).
The next factor focused on Villavicencio’s sudden decision to pull over to the left
shoulder as opposed to the right side of the road. This behavior, while uncommon and
generally unsafe, is not a significant indicator of criminal activity. Particularly since
19
Villavicencio had been traveling in the left-hand lane at the time Wiessman signaled for
him to pull over, we find his behavior to be innocuous.
With respect to the visible contents of the vehicle, or lack thereof, the absence of
luggage or provisions is not compelling under the reasonable suspicion analysis. See
Bowman, 884 F.3d at 216 (rejecting the contention that the presence of luggage and food
suggests a longer period of travel than the defendant admitted to). Undoubtedly, many
innocent travelers driving a large SUV, such as a Chevrolet Suburban as in this case, store
luggage or other travel necessities in the trunk as opposed to on the rear passenger seat.
Here, there is no evidence that Wiessman was in a position to observe the back cargo area
prior to her issuance of the warning ticket.
However, Wiessman also relied on the presence of four cell phones in the center
console of the vehicle with only two passengers. She testified that, in her experience, the
presence of multiple cell phones often indicates involvement in illegal business or activity.
See J.A. 168-69 (“A lot of times defendants will have multiple cell phones because they
will use one cell phone for their family, for their friends, and the other cell phone is known
as a business phone or a burner phone . . . [used] only for illegal or business transactions.”).
While multiple cell phones are not suspicious standing alone, they do contribute under the
totality of the circumstances to reasonably arouse suspicion. See United States v. Vaughan,
700 F.3d 705, 712 (4th Cir. 2012) (finding presence of four cell phones in vehicle relevant
to the reasonable suspicion analysis, in part, because the detained vehicle contained only
20
two occupants); Newland, 246 F. App’x at 189 (finding the presence of multiple cell
phones contributed to reasonable suspicion as part of the totality of the circumstances). 4
Next, the minor inconsistencies between the name on the rental agreement and
Rivero’s driver’s license is of minimal value. Wiessman explained that Hispanic names
are often transposed incorrectly onto driver’s licenses, rental agreements, and other
documents.
In continuing to identify the factors that contributed to her reasonable suspicion,
Wiessman pointed out that the cost of the rental was $630.47, which, based on her
experience, was “extremely expensive . . . particularly a lot of money for somebody who’s
just traveling one day up, staying in a hotel that they’re not familiar with.” J.A. 164. This
sort of travel “was abnormal.” Id. Thus, Wiessman “certainly was entitled to rely, to some
degree, on [the travel’s] unusual nature in determining whether criminal activity was
afoot.” Digiovanni, 650 F.3d at 513.
4
The dissent seeks to distinguish Vaughan on the ground that its holding “was
expressly limited to the peculiar situation in which an officer observes multiple cellphones,
only some of which are prepaid.” Dissent at 6. But we have not foreclosed the possibility
that the presence of “multiple cell phones”, standing alone, can “‘further[]’” an officer’s
reasonable suspicion. United States v. Jordan, 952 F.3d 160, 165 (4th Cir. 2020).
Recently, in Jordan, we refused to reach that issue since we found that the officer “had the
requisite reasonable suspicion that [the defendant] was engaged in illegal drug activity”
before the officer saw “several other cellphones in the vehicle.” Id. at 164, 167.
In addition, our sister circuits have found that multiple cellphones inside a vehicle
can factor into the officer’s reasonable suspicion calculus. See, e.g., United States v.
Santillan, 902 F.3d 49, 59 (2d Cir. 2018) (holding that the presence of more than one cell
phone “heightened rather than dispelled” the officer’s reasonable suspicion); United States
v. Pena-Ponce, 588 F.3d 579, 584 (8th Cir. 2009) (listing “multiple cell phones in the
truck” as a “suspicious circumstance[]”).
21
Moreover, Wiessman testified that Villavicencio’s increasing nervousness and
evasive behavior were indicators of criminal activity. Specifically, Wiessman noted that,
in the beginning of the traffic stop, Villavicencio “understood [her] directions.” J.A. 177.
However, once inside the patrol car, Villavicencio “tried or implied that he was starting to
have less [of an] understanding” of English. J.A. 156. Even though Wiessman
communicated with Villavicencio using a mixture of Spanish and English, she started to
“grow suspicious” of his language evasiveness. J.A. 157. Wiessman believed that
Villavicencio “was intentionally trying to demonstrate to [her] that he didn’t understand.”
Id.; see also J.A. 299 (district court finding that, “[g]iven the totality of the[ circumstances]
and both verbal and nonverbal interaction, . . . Villavicencio and Rivero possessed
sufficient understanding of English to enable Trooper Wiessman to engage with them
appropriately and meaningful[ly]”).
Along with this evasiveness, there is no question that Wiessman was also entitled
to rely on Villavicencio’s nervousness to some degree. See Wardlow, 528 U.S. at 124(stating, “nervous, evasive behavior is a pertinent factor in determining reasonable
suspicion”). Although Villavicencio’s apparent nervousness, standing alone, is of little
value in the reasonable suspicion analysis, Wiessman indicated that Villavicencio’s
nervousness did not subside as would be expected of other individuals who were only
issued a warning. Indeed, the district court so found. See J.A. 294 (“[A]fter Trooper
Wiessman issued a ticket and told Villavicencio it was only a warning, Villavicencio’s
nervousness did not subside as would be expected among typical innocent travelers.”); see
also United States v. Mason, 628 F.3d 123, 129 (4th Cir. 2010) (finding it relevant to the
22
reasonable suspicion analysis that the defendant “was sweating and unusually nervous
when interacting with [law enforcement],” and that the other defendant’s “nervousness did
not subside, as occurs normally, but became more pronounced as the stop continued”);
Foreman, 369 F.3d at 785 (exceptional nervousness that grew worse when officer raised
the issue of drug trafficking added to reasonable suspicion determination).
Villavicencio’s demeanor was unlike that of the defendant in Bowman, 884 F.3d
200. There, we were also confronted with the question of whether an officer had reasonable
suspicion of ongoing criminal activity to justify extending a traffic stop. Among the factors
that contributed to the officer’s articulated reasonable suspicion was Bowman’s
“nervousness during the traffic stop.” Id. at 208. Granted, “‘a driver’s nervousness is not
a particularly good indicator of criminal activity, because most everyone is nervous when
interacting with the police.’” Id. at 214 (citing Palmer, 820 F.3d at 652-53 n.7). But what
is relevant to the determination of reasonable suspicion is whether the driver exhibits
“nervous, evasive behavior.” Id. (citing Wardlow, 528 U.S. at 214) (emphasis added). That
is what Wiessman observed. While in the patrol car, she noticed that Villavicencio “went
from being very engaged and very listening to kind of almost like recoiling and pulling
himself away.” J.A. 155. And when Wiessman gave Villavicencio the warning ticket, she
observed that his nervousness did not subside, “as occurs normally.” Mason, 628 F.3d at
129. Wiessman’s observations of Villavicencio’s nervousness in comparison to the
behavior of other drivers she has stopped in the past should not be discounted. See Lender,
23
985 F.2d at 154 (“Courts are not remiss in crediting the practical experience of officers
who observe on a daily basis what transpires on the street.”). 5
Wiessman also considered Villavicencio’s inability to identify the town he and
Rivero had stayed in the night before as a heightening factor to reasonable suspicion.
Wiessman inferred that either Villavicencio did not know where in North Carolina he had
been or that he did not want her to know. The fact that Villavicencio could only tell
Wiessman that the name of the town was on the GPS and the hotel receipt, see J.A. 278,
by itself, was not suspicious. “[I]t would be perfectly consistent with innocent travel for a
person to rely on a GPS system to navigate and still not know precisely where he had been.”
Bowman, 884 F.3d at 217.
Along with his supposed lack of knowledge, Villavicencio’s itinerary did not
suggest innocent travel, as Wiessman reasonably concluded. Indeed, “common sense
suffices to justify this inference” that most innocent travelers would not spend $630 to rent
5
As we noted above, the district court also made certain findings about
Villavicencio’s nervousness and language evasiveness. See J.A. 294, 298-99. We review
these “factual findings for clear error.” Drummond¸ 925 F.3d at 687 (internal quotation
marks and citation omitted). Under this standard, we “must ask whether, on the entire
evidence, … [we are] left with the definite and firm conviction that a mistake has been
committed.” United States v. Wooden, 693 F.3d 440, 451 (4th Cir. 2012) (internal
quotation marks and citation omitted) (emphasis added). We cannot evaluate the district
court’s finding on Villavicencio’s nervousness by solely consulting Wiessman’s dashcam
video, which covered only the time when Wiessman and Villavicencio were in the patrol
car and did not reveal the defendant’s actions, only his words. Likewise, we cannot
evaluate the district court’s finding on Villavicencio’s language evasiveness by relying on
the dashcam video. We must consider the “entire evidence,” id., including the initial
discussion between Wiessman and Villavicencio at the beginning of the stop, which also
was not captured on video.
24
a vehicle in Orlando, Florida, proceed to drive most of the night and into the next morning
to a sparsely populated area in North Carolina, which they had no familiarity with, to visit
girls for approximately 24 hours before driving back to Florida. Glover, 140 S. Ct. at 1188.
Of course, it is conceivable, given social media today, that Villavicencio met females
online and traveled this long distance—which Wiessman estimated would take 24 to 26
hours roundtrip—to briefly visit them. However, the reasonable suspicion standard does
not ask what is plausible. See Navarette, 572 U.S. at 403. Instead, reasonable suspicion is
based on “commonsense judgments and inferences about human behavior.” Glover, 140
S. Ct. at 1188 (quoting Wardlow, 528 U.S. at 119). As the Supreme Court explained in
United States v. Sokolow, “Long before the law of probabilities was articulated as such,
practical people formulated certain common-sense conclusions about human behavior;
jurors as fact-finders are permitted to do the same – and so are law enforcement officers.”
490 U.S. 1, 8 (1989). In Sokolow, the Supreme Court found “probative significance” in
the fact that Sokolow traveled from Honolulu, Hawaii “for 20 hours to spend 48 hours in
Miami during the month of July.” Id. at 9. This out-of-the-ordinary travel helped establish
the reasonable suspicion that Sokolow was transporting illegal drugs. Likewise here.
Under the totality of the circumstances, we conclude that Wiessman had reasonable
suspicion that there were “drugs in this vehicle, possibly concealed,” J.A. 166, at the time
she issued Villavicencio the warning ticket, thereby justifying Villavicencio’s further
detention and a lengthier stop.
Notwithstanding the undisputed evidence, Villavicencio asserts that the Supreme
Court’s decision in Rodriguez and this Court’s Bowman decision dictate a different
25
conclusion. In Rodriguez, the Supreme Court addressed whether a dog sniff is
constitutional if it extends an otherwise completed traffic stop, even if for a few minutes.
575 U.S. at 353. There, the officer lawfully stopped a vehicle, with two occupants, for
driving on the shoulder. Id. at 351. The officer ran a records check on the driver, issued a
warning ticket, and returned his documents. Put simply, the officer had “[taken] care of all
the business” related to the traffic violation yet did not consider the defendant “free to
leave.” Id. at 352. The officer held the defendant for an additional seven or eight minutes
until a canine unit arrived, and a search ultimately uncovered methamphetamine in the
vehicle. Id. On defendant’s motion to suppress, the Court concluded that, “absent
reasonable suspicion,” an officer may not prolong a traffic stop to allow a canine sniff. Id.
at 353. The Court, however, declined to address the primary question at issue here,
“whether reasonable suspicion of criminal activity justified detaining [the defendant]
beyond completion of the traffic infraction investigation,” instead leaving that issue open
for consideration on remand. Id. at 358.
Villavicencio’s position overextends Rodriguez. Here, there is ample evidence of
reasonable suspicion of criminal activity independent of the initial traffic violation. More
importantly, Wiessman’s reasonable suspicion developed while she was completing the
traffic stop mission related activities and before issuing the warning ticket to Villavicencio.
Rodriguez anticipated that such a scenario could be possible but declined to the consider
whether the particular facts presented in that case sufficiently established reasonable
suspicion. Thus, because Wiessman had reasonable suspicion of criminal activity, her
extension of the stop did not violate the narrow rule found in Rodriguez.
26
Villavicencio’s heavy reliance on Bowman is also unpersuasive in light of its factual
distinctions and collective effect on reasonable suspicion. In Bowman, after observing a
vehicle speeding and weaving across the lane, an officer initiated a traffic stop of the
defendant’s red 1998 Lexus, believing that the driver may have been under the influence
of drugs or alcohol. 884 F.3d at 205. At the time, the officer also possessed information
from the Drug Enforcement Agency that two individuals suspected of drug trafficking
activity may be in the area and possibly driving “a red, older model Lexus.” Id. After
completing the tasks related to the stop, the officer issued the driver, Bowman, a warning
ticket and further detained him to conduct a search of the vehicle. Id. at 207.
Notwithstanding the lack of consent, the officer called for a canine officer, which alerted
to the presence of narcotics in Bowman’s vehicle. Id.
During the suppression hearing in Bowman, the Government attempted to justify
the extension of the traffic stop based upon the officer’s observations that the driver
appeared to be nervous; the passenger did not make eye contact with him and also appeared
nervous; a suitcase, an energy drink, food wrappers, and loose items of clothing were
present in the vehicle; and the driver’s statement that he was recently laid off but, despite
his unemployment, had recently purchased the Lexis and another vehicle off Craigslist. Id.
at 206. Although the district court denied the motion to suppress, this Court reversed and
found that the factors relied on by the officer did not give rise to reasonable suspicion of
criminal activity to extend the traffic stop. Id. at 219. In reaching this conclusion, we
evaluated each factor identified by the officer, first separately and then collectively, and
explained that “[a]lthough the nature of the totality-of-the-circumstances test makes it
27
possible for individually innocuous factors to add up to reasonable suspicion, it is
impossible for a combination of wholly innocent factors to combine into a suspicious
conglomeration unless there are concrete reasons for such an interpretation.” Id. (internal
quotation marks omitted). In conclusion, this Court held that the Government failed to
satisfy its burden of establishing what significance the outwardly innocent factors upon
which it relied played in the illicit drug trade. Id. at 218–19.
Unlike Bowman, this is not a case where an officer prolonged the stop based on a
vague tip and a few “wholly innocent” observations. Id. at 219 (internal citations omitted).
Although Wiessman articulated several facts that standing alone are consistent with
innocent travel, many of the facts on which she relied, when taken as a whole, supported
her reasonable suspicion. See Branch, 537 F.3d at 337 (“Courts must look at the
cumulative information available to the officer,” rather than “find a stop unjustified based
merely on a piecemeal refutation of each individual fact and inference”). 6
Because Wiessman possessed reasonable suspicion that criminal activity was afoot,
she was constitutionally entitled to direct Villavicencio to remain in her cruiser and to
6
Villavicencio’s case is more in line with the facts of Mason, 628 F.3d at 125.
There, we were again asked to determine whether a state trooper developed reasonable
suspicion of criminal activity to extend a traffic stop. Id. We held that the trooper had. In
sum, there were five facts that, “when taken as a whole, supported his suspicion, even
though several of the facts, when taken alone, were also consistent with innocent travel.”
Id. at 128. For instance, “the two men were coming from the direction of Atlanta, a city
that, according to [the trooper], was ranked third in the nation in terms of drug distribution,
on a known drug route,” and “Mason was sweating and unusually nervous when interacting
with him, and Mason’s nervousness did not subside.” Id. at 129. So too here. Taking the
articulated facts together as a whole, we find that “sufficient facts existed to have given an
experienced officer a reasonable suspicion that criminal activity was afoot.” Id.28
question Rivero. Villavicencio does not dispute that Rivero’s subsequent consent to a
search of the vehicle was voluntary. Indeed, Rivero verbally agreed to the search in
addition to signing a written consent form. The consensual search of the vehicle therefore
complied with the Fourth Amendment. See Brugal, 209 F.3d at 362 (it is axiomatic that
“[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”).
IV.
For the foregoing reasons, we affirm the district court’s denial of Villavicencio’s
motion to suppress.
No. 18-4691, AFFIRMED;
No. 18-4725, DISMISSED
29
DIAZ, Circuit Judge, dissenting:
Yulian Manuel Villavicencio and Isidoro Perez Rivero were pulled over for
speeding on I–95 around 10:44 in the morning by Trooper Heidi Wiessman. The two
longtime friends claimed that they were traveling back to Florida, where they lived, after
spending the night with female friends at a hotel in North Carolina. The resulting traffic
stop would last over an hour and involve two frisks, a call for a K-9 unit, and, finally, a
search of the vehicle. Eventually, after removing the skirting of the vehicle, Wiessman
discovered counterfeit credit and identification cards. Following conditional guilty pleas,
both men were sentenced to 72 months’ imprisonment for distribution of counterfeit items
and aggravated identity theft. Because I am convinced that the seizure in this case ran afoul
of the Fourth Amendment, I respectfully dissent.
I.
I begin with the points on which the majority and I agree. Like the majority, I find
that the traffic stop was lawful when it began and that all ordinary tasks incident to the stop
were completed at the time Wiessman issued Villavicencio a warning ticket. Thus, we
agree that Wiessman needed reasonable suspicion to extend the stop beyond that point.
And, we also agree that several facts the district court relied on in finding the requisite
suspicion are, in fact, innocuous. These include (1) that the vehicle, which was traveling
in the left lane, pulled over to the left shoulder of the road; (2) that Wiessman, who was
standing at the front righthand side of the large SUV, didn’t immediately observe luggage
30
in the vehicle; and (3) that it’s (at best) “of minimal value” that the rental car agreement
contained minor inconsistencies related to Rivero’s driver’s license. Maj. Op. 21.
But I emphatically part company with the majority’s effort to cobble together
Wiessman’s remaining observations to find reasonable suspicion to prolong the stop. In
the traffic stop context, reasonable suspicion requires that the “relevant facts articulated by
the officers and found by the trial court . . . in their totality serve to eliminate a substantial
portion of innocent travelers.” United States v. Williams, 808 F.3d 238, 246 (4th Cir. 2015)
(cleaned up). My friends in the majority find this requirement satisfied based on the
following facts: (1) the car was rented in Florida and the defendants were traveling on I–
95, (2) there were four cellphones in the center console, (3) Villavicencio was nervous and
evasive, and (4) Villavicencio either could not or would not provide details of his travel
itinerary. 1 According to the majority, these facts suggest an “unusual” travel itinerary,
Maj. Op. 21, and, in their totality, constitute “ample evidence” of criminal activity, Maj.
Op. 26. I cannot agree.
Like the majority, I begin by addressing the facts supporting suspicion individually
before considering them in the aggregate.
1
The majority too notes that the two men drove a “long distance . . . to a remote,
non-tourist destination.” Maj. Op. 18. In fact, Wiessman was unaware of where the two
men were headed until after she prolonged the stop. Villavicencio’s inability to recall the
name of the town the men visited was, after all, one of the factors that Wiessman found
suspicious. The majority also points to Wiessman’s observation that the rental car was
expensive, but (like Wiessman) fails to provide any link between an expensive rental and
criminal activity.
31
A.
The majority first highlights that Wiessman’s suspicions were raised by the car’s
presence on I–95, which she characterized as a “known . . . drug corridor.” J.A. 137. But
as the majority also concedes, innocent motorists, too, use I–95. That interstate is, after
all, a major thoroughfare spanning the eastern seaboard. Indeed, we’ve previously
observed that “the number of persons using the interstate highways as drug corridors pales
in comparison to the number of innocent travelers on those roads.” Williams, 808 F.3d at
247. Thus, “[b]ecause there is nothing inherently suspicious about driving . . . on an
interstate highway,” we require officers to “link interstate-highway travel to more specific
characteristics of narcotics trafficking.” Id. at 248.
Here, the majority finds that link in the fact that the car was rented in Florida, which
Wiessman characterized as a source state for narcotics. My friends read far too much into
this observation. Granted, travel from a “source city” is often cited by law enforcement
officers as raising suspicion. See United States v. Wilson, 953 F.2d 116, 124–25 (4th Cir.
1991). But we’ve previously cautioned that travel from a major “source city” is a
“relevantly insignificant” factor in this analysis because of “the vast number of persons”
traveling from those cities. Id. at 125. Such caution is especially warranted here, given
that Wiessman attached suspicion not to a particular city but, instead, to the entire state of
Florida. See United States v. Digiovanni 650 F.3d 498, 511–14 (4th Cir. 2011) (finding
that driving a rental car from Florida on I–95, among other factors, failed to amount to
reasonable suspicion), abrogated in part on other grounds by Rodriguez v. United States,
575 U.S. 348 (2015).
32
In any event, that the men rented a car in Florida is wholly innocuous when
considering (as we must) the totality of the circumstances. Villavicencio and Rivero, after
all, live in Florida. Both men presented valid Florida driver’s licenses and, at the
suppression hearing, Wiessman testified to her understanding that the men were “from
Florida” and “heading back to Florida.” J.A. 198.
If anything, it would have been suspicious had the vehicle been rented anywhere but
Florida. Indeed, we considered that precise situation in United States v. Brugal, where the
defendant had rented a vehicle in Miami but produced a New York driver’s license. 209
F.3d 353, 360 (4th Cir. 2000). That discrepancy contributed to the officer’s reasonable
suspicion that the defendant flew from New York to Miami in order to buy drugs, rent a
car, and drive back to New York. Id. By contrast, here, the vehicle’s rental location merely
corroborated Villavicencio’s explanation for travel: the pair traveled to North Carolina
from Florida to meet female friends.
B.
The majority next relies on Villavicencio’s “nervous” behavior. Of course,
“unusually nervous behavior” is relevant to reasonable suspicion. United States v. Mayo,
361 F.3d 802, 808 (4th Cir. 2004). But “[a]s this court has recognized on multiple
occasions, a driver’s nervousness is not a particularly good indicator of criminal activity,
because most everyone is nervous when interacting with the police.” United States v.
Bowman, 884 F.3d 200, 214 (4th Cir. 2018). Thus, “absent signs of nervousness beyond
the norm, we will discount the detaining officer’s reliance on the detainee’s nervousness
as a basis for reasonable suspicion.” United States v. Massenburg, 654 F.3d 480, 490 (4th
33
Cir. 2011) (cleaned up); see also United States v. Richardson, 385 F.3d 625, 630 (6th Cir.
2004) (noting that nervousness “is an unreliable indicator, especially in the context of a
traffic stop”).
Nothing in this record points to any indicia of nervousness beyond the norm.
Wiessman testified that Villavicencio seemed nervous while sitting in her patrol car
because he was “breathing really funny,” “squirming in his seat,” and smiling in a way that
seemed “forced.” J.A. 170. She also found it abnormal for someone in her patrol car “to
sit there in the seat while [she is] checking their information” and “you know, smile at
[her].” J.A. 157.
Although Wiessman may have found this behavior odd, little (if anything) about it
suggests an unusual or exceptional level of nervousness indicative of criminal activity. See
Bowman, 884 F.3d at 214–16 (defendant’s trembling hands, failure to make eye contact,
inability to sit still while in the patrol car, and visibly pulsating carotid artery don’t
constitute suspicious level of nervousness); see also Massenburg, 654 F.3d at 484, 490–91
(defendant’s inability to make eye contact, refusal to consent to search, and “stand-offish”
behavior don’t constitute suspicious level of nervousness).
Indeed, the dashcam footage, which includes the audio of the conversation between
Wiessman and Villavicencio, shows that the two shared a relatively comfortable rapport.
They laugh together when Wiessman calls Villavicencio’s travel plans “loco,” for instance,
and make friendly small talk about their shared fondness for German Shepherds. It strains
credulity to label such behavior as exceptional nervousness indicative of criminal activity.
34
See Bowman, 884 F.3d at 215 (review of dashcam footage discounted officer’s observation
that defendant behaved in nervous manner during traffic stop).
For this reason, I’m also unpersuaded by the majority’s observation that
Villavicencio’s behavior “did not subside” after he received a warning ticket. 2 Maj. Op.
22. As the very cases cited by the majority make clear, it’s suspicious when unusual or
exceptional nervousness persists throughout a stop—not when otherwise innocuous
behavior remains unchanged. See United States v. Mason, 628 F.3d 123, 129 (4th Cir.
2010) (finding it relevant that defendant’s “unusually nervous” behavior didn’t subside
over the course of the stop) 3; United States v. Foreman, 369 F.3d 776, 785 (4th Cir. 2004)
(finding it relevant that defendant’s “exceptionally nervous” behavior didn’t subside over
the course of the stop).
C.
The majority next points to Wiessman’s observation that there were four cellphones
in the center console of the car. Oftentimes, Wiessman testified, drug traffickers have one
personal cellphone and another “known as a business phone or a burner phone or something
2
It’s also unclear whether Villavicencio, whose limited ability to speak English was
flagged at the beginning of the stop, understood Wiessman’s attempt to explain in “mixed
English [and] Spanish” that she was writing him a warning ticket. J.A. 156.
3
The majority later says that the facts of this case are largely in line with those in
Mason, where we affirmed a finding of reasonable suspicion. But it omits mention of two
substantial indicators of criminal activity found in Mason that are absent here: first, that
the officer was “immediately struck by an ‘extreme’ odor of air fresheners” emanating
from the car when the defendants were pulled over; and, second that the defendants
answered the officer’s questions in a manner that was clearly false (their answers conflicted
with each other and with the officer’s observation of items in the car). Mason, 628 F.3d at
126, 129.
35
that they would easily get rid of or discard.” J.A. 169. The majority credits this
observation, relying on our decision in United States v. Vaughan for the proposition that
four cellphones are suspicious when possessed by two individuals. See 700 F.3d 705, 712
(4th Cir. 2012). But the majority overlooks that our holding in Vaughan was expressly
limited to the peculiar situation in which an officer observes multiple cellphones, some of
which are prepaid.
In Vaughan, the officer observed that two men possessed four phones of “multiple
types.” Id. The labels on two of the phones indicated that they were prepaid. Id. at 707.
And prepaid phones, the officer testified, were often used by those involved in drug
trafficking because they can be purchased without identification. Id. Acknowledging that
the affordability of prepaid phones also attracts innocent buyers, we qualified our holding
to the unique circumstances where the “vehicle occupants possess both types of phones.”
Id. at 712. We concluded, “It is thus sufficient to hold that where four cellular phones are
present in a car with just two people, and at least two of those phones are of the pre-paid
type known to the detaining officer to be associated with narcotics trafficking, the presence
of the phones constitutes a valid factor in a reasonable suspicion analysis.” Id. (emphasis
added).
This case is far afield from Vaughan. Despite Wiessman’s field experience with
“burner” phones, J.A. 169, she couldn’t say whether any of the phones—let alone two—
were of the burner or prepaid variety. Thus, the factors we deemed suspicious in
Vaughan—possessing one phone that can be cheaply and anonymously replaced, alongside
another phone that requires a long-term contract—are wholly absent here. At the
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suppression hearing, Wiessman testified that (in her experience) a second phone was
typically a “business” or “burner” phone, id., but she offered no explanation for why such
a phone was indicative of criminal, rather than legitimate, business. 4 I find such rank
speculation on the part of the trooper to be of minimal value in assessing reasonable
suspicion.
D.
The majority also relies on Villavicencio’s inability to recall details of his travels.
Villavicencio told Wiessman that he was traveling to North Carolina to visit female friends,
but he couldn’t provide the name of the town or hotel where he had stayed. He told
Wiessman that he didn’t speak English well and referred her instead to the car’s GPS and
his hotel receipt. In the majority’s view, this exchange gave Wiessman reason to suspect
that “either Villavicencio did not know where in North Carolina he had been or that he did
not want her to know.” Maj. Op. 24.
Evasive behavior is relevant to reasonable suspicion. See Illinois v. Wardlow, 528
U.S. 119, 124 (2000) (finding that “[h]eadlong flight,” which “is the consummate act of
evasion,” is “suggestive” of criminal activity). But offering an alternative source for the
information requested by an officer isn’t evasive. Indeed, we rejected this very contention
in Bowman. There, the defendant was pulled over after he had picked up a friend from the
4
Wiessman conceded that innocent motorists might possess an additional phone for
legitimate business but testified that such individuals would “tell [her] this is the work
phone, et cetera.” J.A. 235. However, Wiessman later clarified that, in fact, she never
asked the men why they each possessed an additional phone, and she also admitted that
legitimate businessmen wouldn’t “have to” provide such an explanation. J.A. 239.
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home of the friend’s girlfriend. Id. at 206. When questioned by the officer, the defendant
could recall neither the girlfriend’s name nor where she lived. Id. at 207. Instead, the
defendant estimated that he’d been driving for about thirty minutes and referred the officer
to the car’s GPS. Id. We rejected the notion that this response was suspicious, reasoning
that it’s “perfectly consistent with innocent travel for a person to rely on a GPS system to
navigate and still not know precisely where he had been.” Id. at 217.
So too here. When Villavicencio couldn’t recall where he had visited, he referred
Wiessman not only to the car’s GPS coordinates (as the defendant did in Bowman) but also
to his hotel receipt. Far from trying to evade the question, Villavicencio offered Wiessman
two sources for the information that she requested. If anything, Villavicencio’s inability
to recall these details is even more innocuous than in Bowman. In Bowman, the defendant
had been pulled over in his home state, had driven only 30 minutes from his destination,
and had no apparent difficulty conversing with the trooper. Id. at 206–07. Villavicencio,
by contrast, traveled to North Carolina from Florida, which helps explain why he may have
been unfamiliar with the area, and repeatedly indicated that he had difficulty speaking
English. 5
5
Wiessman claimed that Villavicencio was intentionally downplaying his ability to
speak English because, before entering her patrol car, he had understood her requests to
provide a driver’s license and give consent to a frisk. But there’s no indication that
Villavicencio was comfortably speaking English during those interactions, and, regardless,
Wiessman was told at the very beginning of the stop that Villavicencio’s English was
limited. In any event, whether Villavicencio was downplaying his ability to speak English
is largely irrelevant, given that he provided the information requested via two different
sources.
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II.
None of the above factors, standing alone, arouse reasonable suspicion. But factors
that appear innocuous in isolation may nonetheless amount in the aggregate to reasonable
suspicion. United States v. McCoy, 513 F.3d 405, 413–14 (4th Cir. 2008). This is so if the
facts “in their totality serve to eliminate a substantial portion of innocent travelers,” such
that the “detaining officer ha[d] a particularized and objective basis for suspecting legal
wrongdoing.” Williams, 808 F.3d at 246 (cleaned up).
The majority hangs its hat on this principle and, in particular, the notion that the
circumstances amount to a generally strange travel itinerary. As the majority opinion
summarizes:
[M]ost innocent travelers would not spend $630 to rent a vehicle in Orlando,
Florida, proceed to drive most of the night and into the next morning to a
sparsely populated area in North Carolina, which they had no familiarity
with, to visit girls for approximately 24 hours before driving back to Florida.
Maj. Op. 24–25. 6 At the suppression hearing, Wiessman described her view of the
circumstances similarly: “They drove all the way from Florida and stayed at a hotel one
night and turned back around and left. That wasn’t normal. That was not normal travel,
not normal itinerary, two men to take off like that in the middle of the night like that.” J.A.
237.
6
The majority makes much of the $630 cost of the rental, but I note (as Wiessman
testified), that this was an estimated charge, which assumed that the car would be rented
from a Monday night to a Thursday morning.
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I question how unusual it is for longtime friends to rent an expensive car, drive out
of state, and meet female friends for a night. But even if I’m wrong about that, I
nonetheless can’t agree that these facts reasonably point to criminal activity. Reasonable
suspicion requires the government to articulate “a connection between the relevant facts
and criminal activity.” Williams, 808 F.3d at 253 (emphasis added). After all, “[w]ere it
otherwise, an experienced police officer’s recitation of some facts, followed simply by a
legal catchphrase, would allow the infringement of individual rights with impunity.” Id.
Here, the government fails to provide that link, repeatedly characterizing these
circumstances as “not normal,” Appellee’s Br. 10, 11, without explaining how they are
criminal. When asked what suspicions she had of criminal activity to prolong the stop,
Wiessman testified,
I was thinking drugs. I was. I thought potentially there’s drugs in this
vehicle, possibly concealed. Because when I went up to the vehicle, I didn’t
see any drugs, so possibly concealed drugs. Could have been money. The
way he was acting, it could have been money. It could have been weapons.
It could have been a lot of things. But I knew, based on his activity and the
way that he was trying to kind of mask or cover, it was definitely criminal
activity [a]foot . . . .
J.A. 166. In other words, we’re presented here with a hunch, followed by a legal
catchphrase. 7
7
For this reason, United States v. Sokolow, 490 U.S. 1 (1989) is inapposite. There,
the Court held that a DEA agent had reasonable suspicion to stop a defendant in an airport
based on the agent’s observation that the defendant (among other things) paid thousands
of dollars in cash for a flight departing that same day, traveled under an alias, checked no
luggage, followed an evasive and erratic path through the airport, and took a 20 hour round-
trip flight to spend 48 hours in Miami. Id. at 3–4, 8. Such behavior, the agent subsequently
testified, “had all the aspects of a drug courier.” Id. at 10 & n.11.
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In the past, we’ve prudently declined to find reasonable suspicion where the
government fails to offer “concrete reasons” why vaguely strange circumstances “combine
into a suspicious conglomeration.” Bowman, 884 F.3d at 219. In Digiovanni, for instance,
we refused to find reasonable suspicion where the defendant flew into Florida, rented a car
to drive to the Northeast on I–95, provided a strange travel itinerary involving multiple
stops, and behaved nervously. 650 F.3d at 511–13. Acknowledging that these
circumstances were unusual, we nonetheless found there to be no reasonable suspicion
because the government failed to link the “unusual travel itinerary” to anything beyond
“the facts that [the defendant] rented a car from a source state, was stopped on I–95, and
was initially nervous.” Id. at 513. After all, “[s]uch facts, without more, simply do not
eliminate a substantial portion of innocent travelers.” Id.
Likewise, in Bowman, we found that there wasn’t reasonable suspicion to prolong
a stop where the driver was pulled over for speeding and swerving at 3:40 a.m., couldn’t
recall the location that he was returning from, told the officer that he had recently purchased
multiple vehicles despite having been laid off from his job, and behaved nervously. 884
F.3d at 214–18. Even assuming that those factors were, in their totality, “vaguely
suspicious,” we concluded that reasonable suspicion was lacking because the government
“failed to articulate why [the] behavior is likely to be indicative of some more sinister
activity.” Id. at 218–19 (cleaned up).
And finally, in Williams, we declined to find reasonable suspicion where the
defendant was stopped while driving a rental car on a drug corridor at 12:37 a.m., provided
an address for his warning ticket that didn’t match the address of his driver’s license, and
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provided travel details that conflicted with the terms of his rental car agreement. 808 F.3d
at 247, 253. Despite the detaining officer’s “conclusory” statements that such
circumstances are “commonly associated with those that are involved in criminal activity,”
we vacated the defendant’s conviction because “the prosecution is obliged to present
evidence articulating reasonable suspicion.” Id. at 253 (cleaned up).
While we “do not question the experience of [police] officers,” we require them to
“apply their experience so that the courts can make informed decisions on whether their
suspicions are reasonable.” Id. (cleaned up). And while it’s possible for “individually
innocuous factors to add up to reasonable suspicion,” it’s nonetheless “impossible for a
combination of wholly innocent factors to combine into a suspicious conglomeration unless
there are concrete reasons for such an interpretation.” Bowman, 884 F.3d at 219.
Because no such reasons exist on this record, I respectfully dissent.
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