U.S. v. Jenson

• Decision Date: 23 August 2006
• Docket Number: No. 05-50683.,05-50683.
• Citation: 462 F.3d 399
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tommie Darnell JENSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

462 F.3d 399

UNITED STATES of America, Plaintiff-Appellee, v. Tommie Darnell JENSON, Defendant-Appellant.

No. 05-50683.

United States Court of Appeals, Fifth Circuit.

August 23, 2006.

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Joseph H. Gay, Jr., Asst. U.S. Atty., Margaret M. Embry (argued), San Antonio, TX, for Plaintiff-Appellee.

Dusty Gallivan (argued), Gallivan & Associates, Odessa, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before SMITH and STEWART, Circuit Judges, and CRANE,^* District Judge.

JERRY E. SMITH, Circuit Judge:

Tommie Jenson appeals the denial of his motion to suppress evidence as a violation of his Fourth Amendment rights under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We reverse and remand for entry of a judgment of acquittal.

I.

Slightly before 11:00 p.m. on June 4, 2004, DPS Trooper Eric Gray noticed a van traveling east on I-20 at 77 mph where the speed limit was 65 mph. He decided to stop it for speeding, but after putting on his emergency lights Gray stated that it took between thirty seconds and a minute for the van to come to a complete stop.¹ The officer was driving with a civilian passenger and mentioned to her the suspicion that the passengers in the van may have been trying to conceal something or corroborate stories.

When Gray approached the van, he noticed Jenson, who was the driver, and a woman in the passenger seat and a man in the back seat, both of whom were asleep. Gray informed Jenson he had been stopped for speeding and asked him to step to the rear of the van. Jenson complied and proceeded to answer Gray's questions concerning Jenson's employment and the purpose of his trip. Jenson told Gray that he worked in construction with his uncle Cotton and that they were traveling to Bryan-College Station to pick up his uncle's wife.

Jenson and his passengers provided Gray with drivers' licenses, and Gray ran the licenses to determine whether they were valid and whether there were any outstanding warrants. At 11:02 Gray received word from dispatch that the licenses were clear.

It is uncertain when Gray gave Jenson the written warning, though it probably occurred before Gray asked Jenson's permission to search his vehicle. Gray stated he was "probably close to finishing" the warning at the time he heard from dispatch. He could not recall when he returned the license, though he noted it was his usual practice to return it at the same time he issued the warning.

Though Jenson was calm and cooperative at the time of the initial stop, he became excessively talkative, answering questions that he was not asked, which Gray surmised to mean he was nervous. Jenson continued to exhibit this behavior even after being issued the warning, which Gray found odd because in his experience, a driver normally becomes less agitated when he realizes he is not receiving a citation.

At 11:04 (two minutes after Jenson's license cleared), Gray again asked Jenson where he worked, and he replied "Tommie and Cotton," or "Tommie-Cotton," presumably referring to his construction business with his uncle. Gray then asked Cotton where he worked, and he replied that he was self-employed and that his business did not have a name. Gray found the discrepancy between the two answers suspicious.²

Gray then asked for Jenson's permission to search the van, which was granted. There is no indication that Gray, before requesting permission, told Jenson he was free to leave. Gray then told Jenson that he would need to conduct a pat-down search before he could search the vehicle. Gray later testified that it was standard procedure to frisk occupants of a car before proceeding with a search, to ensure the officer's safety while he was otherwise occupied.

Jenson suddenly became upset and complained of harassment. He started emptying his pockets, at which point Gray unholstered his weapon and told Jenson to put his hands behind his back.

Gray conducted the frisk and found a pocketknife and a small "two-shooter" gun on Jenson's person. Gray put Jenson in his patrol car and ran a criminal background check, which revealed that Jenson was a convicted felon. Jenson was brought to jail, where another officer found a bag of marihuana in his sock.

Jenson filed, and the court denied, a motion to suppress evidence for violation of the Fourth Amendment. He was convicted of one count of being a felon in possession of a firearm and one count of being an unlawful user of a controlled substance in possession of a firearm.

II.

When reviewing the denial of a motion to suppress, we review findings of fact for clear error and conclusions of law de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We construe all facts in the light most favorable to the government as the prevailing party. See United States v. Santiago, 310 F.3d 336, 340 (5th Cir.2002). We analyze the validity of traffic stops under Terry, 392 U.S. at 21, 88 S.Ct. 1868, which held that "limited searches and seizures are not unreasonable when there is a reasonable and articulable suspicion that a person has committed a crime." Santiago, 310 F.3d at 340. We employ a two-part test to determine whether there was "reasonable suspicion": "whether the officer's action was justified at its inception, and . . . whether the officer's subsequent actions were reasonably related in scope to the circumstances that justified the stop." United States v. Brigham, 382 F.3d 500, 506 (5th Cir.2004) (en banc) (citing Terry, 392 U.S. at 19-20, 88 S.Ct. 1868).

Jenson concedes that his speeding justified the traffic stop at its inception. Therefore, the sole issue on appeal is whether the officer's subsequent actions, including his request to search the vehicle and his pat-down search of Jenson's person, were reasonably related to the circumstances justifying the stop.

Several of Gray's actions are plainly permissible under our caselaw. An officer may ask for a driver's license and registration of the occupants and may run a computer check on both. See id. at 509. He also may ask the occupants about their intended destination. See id. at 510.

"[W]e reject any notion that a police officer's questioning, even on a subject unrelated to the purpose of the stop, is itself a Fourth Amendment violation . . . . [D]etention, not questioning, is the evil at which Terry's second prong is aimed." United States v. Shabazz, 993 F.2d 431, 436 (5th Cir.1993). We must also be careful, when conducting a Terry analysis, to allow "officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." Brigham, 382 F.3d at 507 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)) (internal quotations omitted).

Detention, however, may last no longer than required to effect the purpose of the stop. See United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir.2005) (quoting Brigham, 382 F.3d at 507). If all computer checks come back clean, then as a general matter reasonable suspicion disappears, and there is no legitimate reason for extending the stop. See id. at 431. "A recognized exception to this rule is that if additional reasonable suspicion arises in the course of the stop and before the initial purpose of the stop has been fulfilled, then the detention may continue until the new reasonable suspicion has been dispelled or confirmed." Id. The government offers three reasons why there was reasonable suspicion to extend Jenson's traffic stop beyond 11:02 (the time the licenses cleared): (1) It took an unusually long time for Jenson's van to pull over, (2) Jenson's excessive talkativeness indicated nervousness, and (3) Jenson and Cotton appeared to give inconsistent answers.

We decline to consider Jenson's and Cotton's contradictory answers, because the alleged inconsistency did not arise until 11:04 and therefore not "before the initial purpose of the stop [had] been fulfilled." Lopez-Moreno, 420 F.3d at 431. Even if we did consider the conflicting statements, it would be unreasonable to become suspicious based on the statements made.

When asked about his employment, Jenson replied that he worked for his uncle in construction and that the name of the business was "Tommie-Cotton" or "Tommie and Cotton," presumably combining his and his uncle's names. Cotton, in turn, answered that he was "self-employed," which is not by itself inconsistent with having a nephew as an employee.³ He also stated that his business did not have a name, but Jenson may have merely given a descriptive title for the two-man operation, instead of a formal name, when pressed. Gray easily could have dispelled his suspicions by asking a follow-up question such as "Do you work with your nephew?," but there is no evidence that he did so.⁴

Therefore, the specific issue of first impression is whether taking an unusual amount of time to pull over, coupled with nervous behavior by the driver, amounts to reasonable suspicion to justify prolonged detention. We have previously found detentions unreasonable, based on the totality of the circumstances, where the driver exhibited signs of nervousness.⁵ It may be that Jenson's signs of nervousness were more probative when coupled with the delay in pulling over. We accord great respect to Gray's testimony, as a trained law enforcement officer, that it was unusual for the van not to brake when the police car activated its emergency lights and that it took an above-average time for Jenson to pull over.

This modest delay in stopping time does not by itself, however, give rise to reasonable suspicion. It may take drivers different amounts of time, especially at night, to identify the lights of the car behind them as coming from a police car and not from another emergency services vehicle....