                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 01 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-30387

              Plaintiff-Appellee,                D.C. No.
                                                 1:14-cr-00066-SPW-1
 v.

JEVON HASAN MCDUFFIE,                            MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Susan P. Watters, District Judge, Presiding

                    Argued and Submitted November 10, 2016
                               Portland, Oregon

Before: McKEOWN and W. FLETCHER, Circuit Judges, and DORSEY,**
District Judge.

      Jevon Hasan McDuffie appeals the district court’s denial of his motion to

suppress the drug evidence seized from the rental car that he was driving when he

was pulled over on a Montana Highway by Highway Patrol Trooper Quinnell.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.
McDuffie challenges the initial basis for the stop and the duration of the stop. We

have jurisdiction under 28 U.S.C. § 1291. Because the highway trooper

unjustifiably prolonged the stop to call a drug task-force agent, we reverse.

      “We review reasonable suspicion determinations de novo, reviewing

findings of historical fact for clear error and giving due weight to inferences drawn

from those facts by resident judges and local law enforcement officers.”1 If

testimony was taken, “we give special deference to the district court’s credibility

determinations.”2

1.    The initial stop was supported by reasonable suspicion.

      The district judge found credible Trooper Quinnell’s evidentiary-hearing

testimony that he saw McDuffie change lanes without signaling, cross the

centerline, and swerve within his own lane. Giving “special deference”3 to the

district judge’s credibility determinations and reviewing de novo her conclusion

that the trooper had reasonable suspicion for the initial stop, we find that the initial

stop was supported by reasonable suspicion.




      1
        United States v. Valdes-Vega, 738 F.3d 1074, 1077 (9th Cir. 2013)
(internal citations and quotations omitted).
      2
          United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008).
      3
          Id.
                                            2
2.    The trooper lacked reasonable suspicion of drug trafficking and
      impermissibly prolonged the stop to call the drug task-force agent.

      The district judge did not have the benefit of the United States Supreme

Court’s decision last term in Rodriguez v. United States when she denied

McDuffie’s suppression motion. Rodriguez changed the standard for determining

when the duration of a stop becomes unreasonable. It made clear that a traffic stop

“become[s] unlawful if it is prolonged beyond the time reasonably required to

complete th[e] mission of issuing” the ticket for the violation.4 And the Court in

Rodriguez explicitly rejected the government’s argument that an officer can

prolong a traffic stop to perform a non-traffic-related task “so long as the officer is

reasonably diligent in pursuing the traffic-related purpose of the stop, and the

overall duration of the stop remains reasonable in relation to the duration of other

traffic stops involving similar circumstances.”5

      The government conceded at oral argument that, if there was no reasonable

suspicion of drug trafficking, the stop was unjustifiably extended and reversal is

required. But the government maintains that the highway trooper had reasonable


      4
        Rodriguez v. United States, 135 S. Ct. 1609, 1614–15 (2015) (alteration in
original). Supreme Court decisions construing the Fourth Amendment apply
“retroactively to all convictions that were not yet final at the time the decision was
rendered.” United States v. Johnson, 457 U.S. 537, 562 (1982).
      5
          Rodriguez, 135 S. Ct. at 1616.
                                           3
suspicion of drug trafficking because McDuffie was driving a rental car that was

rented to a third party who was not in the car and had driven from Las Vegas,

Nevada, to Glendive, Montana, without stopping at a hotel and sleeping only in his

car. Because these facts would be “very likely to sweep many ordinary citizens

into a generality of suspicious appearance,”6 they are insufficient to support a

reasonable suspicion of drug trafficking. Thus, the trooper’s prolongation of the

traffic stop to call the resident agent in charge of the Eastern Montana Drug Task

Force violated the Fourth Amendment.

         Because the trooper unjustifiably prolonged an ordinary traffic stop to

initiate a drug investigation and lacked independent reasonable suspicion to do so,

the district court’s order denying McDuffie’s suppression motion is reversed. This

case is remanded to the district court for further proceedings consistent with this

order.

         REVERSED.




         6
             United States v. Rodriguez, 976 F.2d 592, 595–96 (9th Cir. 1992).
                                              4
