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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-11267                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                January 21, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

MARRICO EDWARD SPEARS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-82-1


Before BENAVIDES, DENNIS, and COSTA, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:*
       Defendant-Appellant Marrico Edward Spears (“Spears”) appeals his jury
trial conviction and sentence for drug and firearm offenses. Law enforcement
officers stopped Spears as he was driving from a house under surveillance for
drug activity and, after detaining him for almost forty minutes while
attempting to obtain a drug-sniffing dog, searched his vehicle. Spears appeals,
inter alia, the district court’s denial of his motion to exclude evidence obtained


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-11267
as a result of the search and seizure, contending the search and seizure
violated the Fourth Amendment. For the reasons below, we REVERSE the
district court’s denial of Spears’s motion to exclude evidence, and we VACATE
his conviction and sentence.
                               I. BACKGROUND
A.    The Drug Investigation
      On the day of the search and seizure, Spears visited a house located on
New York Avenue in Fort Worth, Texas (the “New York House”) that law
enforcement officers were monitoring for drug activity.         Horacio Loera
(“Loera”), a suspected drug dealer, lived at the New York House. An officer
testified that a drug investigation into Loera began in February 2013, when
officers “seized approximately 250 pounds of marijuana from a business”
owned by Loera. Through investigation, officers identified multiple people
suspected to be Loera’s customers. Once in May 2013 and once in October
2013, confidential informants purchased drugs from people associated with
Loera. Also in May 2013, an undercover officer purchased drugs from a person
who had very recently visited the New York House.
      On January 15, 2014, law enforcement officers asked a confidential
informant to order cocaine from a different suspected drug dealer. When the
confidential informant placed the order, the suspected drug dealer said he
would contact his source. The officers then began conducting surveillance on
the suspected drug dealer. The officers observed the suspected drug dealer
travel to the New York House and knock on the door, but nobody answered the
door. He then told the confidential informant, “I’m not able to get the kilo [of
cocaine]. I’m trying—I’ve tried to get a hold of my guy. I can’t get a hold of
him. I went by his house. I can’t get anybody to answer.” An officer testified
that based on this, the officers concluded that the suspected drug dealer had
tried to get cocaine from the New York House.
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                                 No. 14-11267
      The following morning around 9:00 a.m., on January 16, 2014, officers
set up surveillance at the New York House. An officer testified that the officers
“decided instead of trying to set up the buy again that [they] would move up
and go directly to the source of the cocaine.”      The officer also answered
affirmatively when asked whether the officers “anticipate[d] that [the prior
day’s] transaction might actually be consummated” that day. The record does
not contain any further explanation as to why the officers believed a drug
transaction might occur that day specifically.
      After approximately thirty minutes of surveillance, Loera arrived at the
New York House driving a silver sport utility vehicle. Shortly thereafter,
Spears arrived at the New York House driving a white truck with an Oklahoma
license plate. A third, blue car either arrived near this same time or was
already parked in the driveway when surveillance began.           The driveway
extended all the way down the side of the house, behind the house, and into
the backyard. Spears backed his truck into the driveway towards the back of
the house—in between the house and the fence—in a manner that completely
obstructed the driver’s side and the passenger’s side of the truck from the view
of the officers on the street. Had the officers been located directly in front of
the driveway, they would have been able to see Spears’s truck better, but from
their vantage point they could not see whether Spears exited his truck, entered
or exited the house, or talked to Loera. At this time, Spears was unknown to
the officers, and he had not previously been identified as a suspect connected
with drug activity, the New York House, or Loera.
      Spears drove away from the New York House ten to twenty minutes after
he arrived, and an officer followed him. Five to ten minutes after Spears left,
a red car with Louisiana license plates arrived at the New York House.
Officers observed two men get out of the red car, meet with Loera in the front
yard, go to the back of the house without carrying anything, return to the car
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                                  No. 14-11267
carrying a duffle bag, and put the duffle bag in the trunk of the car. The two
men left after approximately five minutes, and officers followed them. Shortly
thereafter, Loera left in the sport utility vehicle, and officers followed him as
well.
B.      The Stop, Search, and Seizure
        An officer pulled Spears over after another officer witnessed him commit
a traffic violation.   As the officer approached Spears’s truck, he observed
Spears rummaging around the center console of the truck. The officer asked
Spears for his identification and insurance, which he provided, and a few other
questions. After speaking with Spears for approximately one minute, the
officer returned to his patrol car. After approximately four and half minutes
in the patrol car, the officer exited the patrol car and began speaking with
Spears again. The officer testified that while he was questioning Spears,
Spears appeared nervous, was not giving straight answers, was evasive in
responding to questions, and was very non-compliant. When the officer asked
Spears where he was coming from, Spears said he was coming from visiting a
relative, which the officer believed was an untrue statement. When asked,
Spears said he did not have any weapons in the truck, but he did not consent
to a search of the truck. The officer then instructed Spears to step outside the
truck in order to, in part, pat him down to ensure he did not have any weapons
on him, but he refused. When a second officer arrived, they again asked Spears
to step outside the truck. Again Spears initially refused, but he complied
approximately one minute after being asked. After the pat down, the officers
instructed Spears to sit in the back of the patrol car to wait for a drug-sniffing
dog to arrive. He complied after protesting for approximately two minutes.
When Spears first entered the back of the patrol car, approximately sixteen
and a half minutes had elapsed since he was first pulled over.


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                                   No. 14-11267
      At some point, officers with both the Fort Worth Police Department and
the United States Drug Enforcement Administration (the “DEA”), which were
both involved in the drug investigation, had begun trying get a drug-sniffing
dog to the traffic stop. DEA officers in particular made multiple phone calls to
different agencies, but no drug-sniffing dogs were available. An officer testified
that one of the reasons they wanted to use a dog was to get probable cause to
search Spears’s vehicle.    While still unable to locate a dog, the officers
detaining Spears were informed by other officers that they had found a large,
vacuum-sealed bag of money in Loera’s sport utility vehicle after stopping
Loera. Upon receiving this information, the officers collectively decided there
was probable cause to search Spears’s truck, and they proceeded to do so.
Almost forty minutes had elapsed from the time Spears was initially stopped
until the time the search began.
      In their search, the officers found a semiautomatic handgun in the center
console, a backpack that contained approximately $59,800 in cash, a
counterfeit money detector, and a laundry bag that smelled of marijuana.
Spears was arrested and transported to the DEA office. His cell phone was
obtained from his person when he was processed at the DEA office. The
government subsequently searched his cell phone and found a picture of
marijuana and a picture of stacks of money with a vacuum sealer. An officer
testified that while Spears was at the DEA office, he admitted purchasing
marijuana from Loera in the past and giving Loera a cash down payment that
morning for marijuana. Loera ultimately admitted the same information after
his arrest when questioned at the DEA office.
C.    Procedural History
      The United States filed a complaint against Spears on March 20, 2014,
and he was first indicted on April 16, 2014. The third superseding indictment
charged Spears with three counts: conspiracy to possess with intent to
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                                  No. 14-11267
distribute at least 100 kilograms of marijuana, felon in possession of a firearm,
and possession of a firearm in relation to a drug trafficking crime.
      On May 16, 2014, Spears filed a motion to suppress all the evidence
obtained as a result of the search and seizure, including the physical evidence
obtained from his truck, the cell phone pictures, and his alleged admission. On
May 30, 2014, the district court held a hearing on the motion to suppress
evidence. During the hearing, the United States called three officers involved
in the stop and search. Spears did not call any witnesses, but he introduced
evidence that included the patrol car’s video and audio recording of the stop.
The district court denied the motion to suppress evidence, holding that law
enforcement officers had probable cause to search Spears’s vehicle and that
Spears’s detention pursuant to a traffic stop until there was probable cause for
the search was reasonable.
      Spears’s trial commenced on June 16, 2014. After two days, the jury
convicted Spears on all three counts. The district court sentenced Spears to a
total term of imprisonment of 420 months and a 4-year term of supervised
release. Spears now appeals, inter alia, the district court’s denial of his motion
to suppress evidence.
                         II. STANDARD OF REVIEW
      “When reviewing a district court’s denial of a motion to suppress
evidence as obtained in violation of the Fourth Amendment, we review the
factual determinations for clear error and the legal conclusions de novo.”
United States v. Powell, 732 F.3d 361, 369 (5th Cir. 2013). “[W]e may consider
all of the evidence presented at trial, not just that presented” at the motion to
suppress hearing. United States v. Raney, 633 F.3d 385, 389 (5th Cir. 2011)
(alternation in original). “[W]e may affirm the district court’s decision on any
basis established by the record.” Powell, 732 F.3d at 369.


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                                   No. 14-11267
                                 III. ANALYSIS
      Spears contends the district court erred in denying his motion to
suppress evidence because his detention pursuant to a vehicular stop and the
subsequent warrantless search of his vehicle violated the Fourth Amendment.
The United States contends the search and seizure did not violate the Fourth
Amendment because law enforcement officers had reasonable suspicion of
criminal activity sufficient to stop and detain Spears, which developed into
probable cause to search his vehicle.
      “The exclusionary rule allows a defendant to suppress the evidentiary
fruits of a violation of his Fourth Amendment rights.” United States v. Pack,
612 F.3d 341, 347 (5th Cir.), modified on other grounds, 622 F.3d 383 (5th Cir.
2010).   “We analyze the legality of traffic stops for Fourth Amendment
purposes under the standard articulated by the Supreme Court in Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).” Id. at 349−50. The
Terry standard involves a two-part inquiry. Id. at 350. “First, we determine
whether stopping the vehicle was initially justified by reasonable suspicion.”
Powell, 732 F.3d at 369.         Second, we determine “whether the officer’s
subsequent actions were reasonably related in scope to the circumstances that
justified the stop of the vehicle in the first place.” United States v. Macias, 658
F.3d 509, 517 (5th Cir. 2011).
      “Reasonable suspicion exists when the detaining officer can point to
specific and articulable facts that, when taken together with rational
inferences from those facts, reasonably warrant the . . . seizure.” Id. at 519−20
(omission in original). “Although an officer’s reliance on a mere hunch is
insufficient to justify a stop, the likelihood of criminal activity need not rise to
the level required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard.” Pack, 612 F.3d at 352.
The reasonable suspicion analysis “is necessarily fact-specific, and factors
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                                    No. 14-11267
which by themselves may appear innocent, may in the aggregate rise to the
level of reasonable suspicion.” United States v. Ibarra-Sanchez, 199 F.3d 753,
759 (5th Cir. 1999). “‘We must pay heed to the Supreme Court’s admonition
not to treat each factor in isolation,’ and instead must consider ‘the totality of
the circumstances and the collective knowledge and experience of the officer.’”
Macias, 658 F.3d at 520 (citations omitted). Under the collective knowledge
doctrine, reasonable suspicion “can vest through the collective knowledge of
the officers involved in the search and seizure operation.” Powell, 732 F.3d at
369.
A.      Whether Stopping the Vehicle Was Initially Justified by
        Reasonable Suspicion
        “For a traffic stop to be justified at its inception, an officer must have an
objectively reasonable suspicion that some sort of illegal activity, such as a
traffic violation, occurred, or is about to occur, before stopping the vehicle.”
United States v. Lopez–Moreno, 420 F.3d 420, 430 (5th Cir. 2005). Even if a
traffic violation has not been committed, an officer may stop a vehicle for
investigatory purposes if he or she has a reasonable suspicion of criminal
activity. United States v. Zavala, 541 F.3d 562, 574 (5th Cir. 2008). The
United States contends, and the district court found, that the law enforcement
officers were initially justified in stopping Spears’s vehicle for two reasons:
reasonable suspicion of a traffic violation and reasonable suspicion of a drug
crime. Each reason is addressed in turn.
        First, law enforcement officers testified Spears committed a traffic
violation. Specifically, the officer that pulled Spears over, who was with the
Fort Worth Police Department, testified that an officer with the DEA
communicated to him that he had observed Spears change lanes without
signaling, which is a traffic violation. Additionally, an officer with the DEA
testified that his colleague observed Spears commit a traffic violation. Based

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                                 No. 14-11267
on this evidence, we find stopping Spears’s vehicle was initially justified by a
reasonable suspicion that he had committed a traffic violation.
      Second, the United States contends the traffic stop was initially justified
because the officers had a reasonable suspicion that Spears had committed or
was about to commit a drug crime. The United States claims the following
facts created this reasonable suspicion: Spears visited the New York House,
which had been the site of an attempted drug transaction with a confidential
informant the day before, was where a suspected drug dealer lived, and had
previously been visited by a person very soon before that person sold drugs to
an undercover officer; Spears backed his truck into the driveway in a manner
that obstructed the driver’s side and the passenger’s side of the truck from the
view of the officers; Spears had an out-of-state license plate; multiple vehicles
arrived at the New York House near the time Spears arrived at the New York
House; and Spears stayed at the New York House for only ten to twenty
minutes.
      Visiting a house linked to drug activity is similar to being in a high-crime
area. While a person’s presence in an area known to be high in crime is a
“‘relevant contextual consideration’” in the reasonable suspicion analysis, such
presence, “‘standing alone, is not enough’ to support a reasonable suspicion
that anybody found there is involved with drugs.” United States v. Hill, 752
F.3d 1029, 1035 (5th Cir. 2014) (quoting Illinois v. Wardlow, 528 U.S. 119, 124
(2000)). Likewise, the fact that Spears visited the New York House, which was
linked to drug activity in several ways, is relevant; however, this fact alone is
not enough to support a reasonable suspicion that he is involved with drugs.
Significantly, neither Spears nor his truck were known to the officers before he
visited the New York House, and he had not previously been identified as a
suspect connected with drug activity, the New York House, or Loera. Also, the
officers did not observe Spears take any action besides parking in the driveway;
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                                 No. 14-11267
specifically, they did not see Spears exit his truck, enter or exit the New York
House, or talk to Loera. Thus, the officers had no way of differentiating Spears
from a law-abiding visitor—for example, a maintenance technician visiting to
work on the house, or a relative visiting for social purposes only. For these
reasons, additional suspicious activity is needed to give rise to a reasonable
suspicion that Spears had committed or was about to commit a crime.
      The United States claims that backing into the driveway in a manner
that concealed loading and unloading of the truck was suspicious. However,
backing into the driveway of a house is not unusual, and there is no indication
that Spears backed his truck into the driveway in an atypical way. Although
the way Spears parked obstructed the driver’s side and the passenger’s side of
the truck from the view of the officers on the street, the officer’s view was
obstructed because of the placement of the back of the driveway in relation to
the fence, the house, and the officer’s location on the street—not because of
anything Spears did other than park in the back of the driveway. Had the
officers been located directly in front of the driveway, they would have been
able to see Spears’s truck better. Also, no evidence was adduced that Spears
loaded or unloaded anything while at the New York House, nor was any
evidence provided that the contents of Spears’s truck changed while at the New
York House. Just as we have found “the fact that a car is backed into a parking
space [of an apartment complex] is of little persuasive value in evaluating
reasonable suspicion,” Hill, 752 F.3d at 1036, the fact that Spears backed into
the driveway of the New York House is of little persuasive value here.
      The United States also claims the fact that Spears was driving a truck
with Oklahoma license plates in northern Texas was suspicious. An officer
testified that out-of-state license plates are very common in narcotic
investigations, especially when dealing with large quantities of drugs, because
people do not usually come from out of state to buy a small quantity of drugs.
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                                  No. 14-11267
However, we have noted that “an out-of-state driver’s license and license
plates . . . may not suffice to create reasonable suspicion of criminal activity.”
United States v. Davis, _ F. App’x _ , 2015 WL 4931408, at *3 (5th Cir. Aug. 19,
2015). On one hand, we have found a reasonable suspicion of drug crime
where, inter alia, a tractor-trailer with out-of-state license plates exited a main
road to an area without a gas station or truck stop. United States v. Chasten,
223 F. App’x 418, 420 (5th Cir. 2007). On the other hand, other circuits have
found a vehicle with out-of-state license plates, even on a highway known to be
used for drug trafficking or even when exiting a highway at an unlikely place
for cross-country travelers, does not give rise to a reasonable suspicion of drug
crime because if it did, “officers could pull over scores of drivers every day” and
because “[t]oo many people fit this description for it to justify a reasonable
suspicion of criminal activity.” Huff v. Reichert, 744 F.3d 999, 1004–05 (7th
Cir. 2014); United States v. $45,000.00 in U.S. Currency, 749 F.3d 709, 723 (8th
Cir. 2014); United States v. Yousif, 308 F.3d 820, 828 (8th Cir. 2002)
(alternation in original). Here, unlike in our Davis case, there is no evidence
or suggestion that Spears was travelling in an area of northern Texas
unfrequented by Oklahoma visitors in pickup trucks. While we view the facts
in light of the officer’s experience, the same officer who testified about the
commonality of out-of-state license plates in narcotics investigations also
testified that is it is “not uncommon to see out-of-state plates go to a house.”
Even assuming travelling with an out-of-state license plate can be a factor
supporting reasonable suspicion, we find Spears’s travel with an out-of-state
license plate in this case does not give rise to a reasonable suspicion of criminal
activity.
      Lastly, the United States claims the fact that multiple vehicles arrived
at the New York House near the same time and the fact that Spears stayed at
the New York House for only ten to twenty minutes were suspicious. However,
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                                  No. 14-11267
the officer that testified about this issue did not necessarily say that such facts
were suspicious; rather, he said the multiple arrivals “piqued [the officers’]
interest,” especially given that there was not any activity at the New York
House during the first thirty minutes of surveillance, “showed [them] that
there was some definite activity going on,” and made it “appear[ ] to [them]
that everyone seemed to arrive at approximately the same time.” There are
many innocent reasons for multiple cars to arrive at a house around the same
time in the morning, even if only staying a short amount of time. We do not
find these facts probative enough to support a reasonable suspicion finding in
this particular case.
       Having analyzed the facts individually, we are mindful that each fact
should not be treated in isolation and that facts which by themselves appear
innocent may in the aggregate rise to the level of reasonable suspicion.
Nonetheless, we do not find the totality of the circumstances at the time of the
stop created a reasonable suspicion of a drug crime or any other criminal
activity.
       In summary, stopping Spears’s vehicle was initially justified by
reasonable suspicion of a traffic violation only.      Accordingly, the officers’
subsequent actions must have been reasonably related in scope to a traffic
violation.
B.     Whether the Law Enforcement Officer’s Subsequent Actions
       Were Reasonably Related in Scope to the Circumstances that
       Justified the Stop of the Vehicle
       “An officer’s subsequent actions are not reasonably related in scope to
the circumstances that caused him to stop the vehicle if he detains its
occupants beyond the time needed to investigate the circumstances that caused
the stop, unless he develops reasonable suspicion of additional criminal
activity in the meantime.” Pack, 612 F.3d at 350. Specifically, a stop justified

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                                 No. 14-11267
by only a traffic violation “‘become[s] unlawful if it is prolonged beyond the
time reasonably required to complete th[e] mission’ of issuing a ticket for the
violation” and “attend[ing] to related safety concerns,” absent reasonable
suspicion of additional criminal activity. Rodriguez v. United States, 135 S. Ct.
1609, 1612, 1614−16 (2015) (first two alterations in original) (quoting Illinois
v. Caballes, 543 U.S. 405, 407 (2005)). “If the officer develops reasonable
suspicion of additional criminal activity, . . . he may further detain [the]
occupants [of the vehicle] for a reasonable time while appropriately attempting
to dispel this reasonable suspicion.” Andres, 703 F.3d at 833 (alterations in
original).
      The time reasonably required to complete the mission of issuing a traffic
ticket can include the time it takes to inspect the driver’s license, automobile
registration, and proof of automobile insurance; run computer checks;
determine whether there are outstanding warrants against the driver; and ask
the purpose and itinerary of the trip. Rodriguez, 135 S. Ct. at 1615; Pack, 612
F.3d at 350. A dog sniff is not part of the mission of issuing a traffic ticket.
Rodriguez, 135 S. Ct. at 1615.     Therefore, absent reasonable suspicion of
additional criminal activity, waiting for or conducting a dog sniff cannot
prolong a stop justified by only a traffic violation beyond the amount of time
reasonably required to complete the mission of issuing a traffic ticket and
attending to related safety concerns. Id. at 1614, 1616.
      Almost forty minutes elapsed from the time the officers initially stopped
Spears until the time they began the search of his vehicle, which was
commenced due to the receipt of information that other officers had found a
large amount of money in Loera’s vehicle after stopping Loera. Approximately
sixteen and a half minutes after the officers initially stopped Spears, they sat
him in the back of the patrol car, and all questioning of him, the pat down for
weapons, and the computer checks had been fully completed. Thus, activities
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                                       No. 14-11267
involving the mission of issuing a traffic ticket and attending to related safety
concerns were completed, at the very latest, sixteen and a half minutes into
the traffic stop. 1 Spears was detained for almost an additional twenty-three
and a half minutes—just sitting in the back of the patrol car—while the officers
tried to obtain a drug-sniffing dog, which is not part of the mission of issuing a
traffic ticket. Therefore, detaining Spears beyond the initial sixteen and a half
minutes of the stop was not permitted unless a reasonable suspicion of criminal
activity arose during those sixteen and a half minutes. The United States
claims the following facts that arose during the stop, combined with the facts
previously discussed that occurred before the stop, created a reasonable
suspicion of criminal activity: Spears lied about where he was coming from; he
appeared nervous; he was evasive, non-compliant, and argumentative; and
there was a backpack inside his vehicle in plain view. 2
       As to the purported lie, “the question is whether it was reasonable for
someone in [the officer’s] shoes to view the answers as suspicious, not whether
they are convincing proof that [the defendant] was lying.” United States v.
Pena-Gonzalez, _ F. App’x _ , 2015 WL 4317820, at *4 (5th Cir. July 16, 2015).
Nonetheless, minor, insignificant, illusory, or reconcilable inconsistencies in a
defendant’s story are not probative of criminal activity. See Davis, 2015 WL


       1  Likely, the reasonable amount of time required to complete the mission of issuing a
traffic ticket and attending to related safety concerns was less than sixteen and a half
minutes. However, because reasonable suspicion did not arise during the initial sixteen and
a half minutes for reasons explained infra, we need not parse exactly when the mission of
issuing a traffic ticket and attending to related safety concerns was reasonably completed.
Indeed, the United States does not contend that the officers even intended to issue a traffic
ticket at any time.
        2 The United States also claims the presence of what appeared to be a money counter

in plain view contributed to reasonable suspicion. However, the DEA officer who saw what
appeared to be a money counter did not arrive to the traffic stop until well after the initial
sixteen and a half minutes of the stop. Therefore, the presence of what appeared to be a
money counter could not have contributed to reasonable suspicion during the time reasonably
required to complete the mission of issuing a traffic ticket and attending to related safety
concerns.
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                                 No. 14-11267
4931408, at *4; Pack, 612 F.3d at 359–60. When the officer that stopped Spears
asked him “where he was coming from,” Spears said he was coming from
“visiting a relative,” which the officer believed was an untrue statement based
on the information he had received from the other officers. The other officers
knew Spears had come from the New York House, where Loera lived.
Specifically, the officers knew Spears had parked in the driveway of the New
York House for ten to twenty minutes, during which time the officers could not
see whether Spears exited the vehicle and went inside the house. However,
there is no evidence or contention that any of the officers knew that Loera was
not a relative of Spears or that none of Spears’s relatives lived at the New York
House. Also, there is no evidence or contention that any of the officers knew
who, if anyone, lived with Loera at the New York House. Spears was unknown
to the officers prior to that day, and the officer did not ask Spears anything
about Loera or the New York House. Therefore, we find it was not reasonable
for the officer to view Spears’s answer about where he was coming from as
suspicious, much less that it was lie.
      Next, the United States claims the fact that Spears appeared nervous
created a reasonable suspicion of criminal activity.        The only evidence
regarding Spears’s nervousness is the officer’s testimony that Spears “was
nervous”; the officer did not explain why he thought Spears was nervous or
name any physical displays of nervousness. In most other cases in which we
have found nervousness to be a factor supporting reasonable suspicion, the
defendant was described as being more nervous than how Spears was
described. See, e.g., United States v. Wallstrum, 515 F. App’x 343, 345, 347,
350 (5th Cir. 2013) (arms and hands shaking, eyes twitching, and neck visibly
pulsing); United States v. Wilkerson, 405 F. App’x 893, 896 (5th Cir. 2010)
(ankle slapping, shifty eyes, shaky hands, and trembling body). Here, the non-


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                                 No. 14-11267
descriptive, general statement that Spears was nervous is not sufficiently
persuasive to create reasonable suspicion.
      The United States also claims Spears’s evasiveness, non-compliance, and
argumentativeness were suspicious. “[E]vasive behavior is a pertinent factor
in determining reasonable suspicion,” but because “such behavior ‘is not
necessarily indicative of wrongdoing,’” the “context is key.” Hill, 752 F.3d at
1036 (quoting Wardlow, 528 U.S. at 124–25). The officer testified that while
he was questioning Spears, Spears was not giving straight answers, was
evasive in responding to questions, and was very non-compliant. The officer
further testified that “from [his] experience, the way [Spears] was acting led
[him] to believe that [Spears] was going to either try to run or fight.”
Specifically, the officer testified that he asked Spears whether there was a
weapon in the vehicle because he observed Spears rummaging around the
center console. At first Spears avoided answering this question with questions
of his own, including wondering why he was being asked such a question, but
he eventually said he did not have any weapons. Also, Spears refused to step
outside his truck when first instructed to do so by the officer that stopped him.
When a second officer arrived, they again asked Spears to step outside the
truck. Again Spears initially refused, saying he was in a hurry and did not
understand why this was necessary for a traffic violation. He complied once
threatened with going to jail for non-compliance, which was approximately a
minute after being asked the second time. After the pat down, the officers
instructed Spears to sit in the back of the patrol car.      He complied after
protesting for approximately two minutes, asking, in part, why he was being
detained.   On one hand, such behavior is not a proper response to law
enforcement and is pertinent in determining reasonable suspicion, especially
in light of the officer’s perception based on his experience. On the other hand,
such behavior is not necessarily indicative of criminal wrongdoing, and Spears
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                                 No. 14-11267
eventually complied with all instructions and answered all questions within
approximately two minutes of being asked. After carefully considering all of
the evidence in context, including the officer’s testimony and the video and
audio recording of the traffic stop, we find that Spears’s level of evasiveness,
non-compliance, and argumentativeness did not rise to such a level that it
alone created a reasonable suspicion of a criminal activity under the specific
facts of this case.
      Lastly, the United States claims that the presence of a backpack inside
Spears’s vehicle in plain view was suspicious. The officer testified that a
backpack is “one of the most common items” used to store money or drugs
during drug transactions. We have found reasonable suspicion to stop a van
where a DEA agent observed three men load the van with large duffle bags at
a suspected “stash house” in the dark due to the deactivation of a motion-
sensitive light. Ibarra-Sanchez, 199 F.3d at 756–59. Also, we have found
probable cause to stop and search a car where an officer observed a suspected
drug dealer transfer a canvas bag from his car to another car in a supermarket
parking lot, and then observed the car with the bag travel to the city that a
confidential informant said the suspected drug dealer was sending drugs to.
United States v. Piaget, 915 F.2d 138, 140 (5th Cir. 1990). Unlike those cases,
in this case the officers did not observe any movement of Spears’s backpack.
Notably, they did not see Spears enter or exit the New York House with the
backpack, nor did they see Spears and Loera exchange the backpack. The first
time officers saw the backpack was after stopping Spears’s vehicle. While we
are considerate of law enforcement’s experience with backpacks in drug
transactions, the very common occurrence of having a backpack in a vehicle
and the multitude of innocent uses for a backpack in a vehicle renders the
presence of a backpack in Spears’s vehicle of little persuasive value.


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                                  No. 14-11267
      For all of these reasons, we find the totality of circumstances that existed
both before the stop and during the initial sixteen and a half minutes of the
stop did not create a reasonable suspicion of criminal activity. In so finding,
we have considered the officers’ experience and the facts in the aggregate.
Because law enforcement officers detained Spears longer than the time
reasonably required to issue a ticket for a traffic violation and attend to related
safety concerns, without reasonable suspicion of additional criminal activity,
his prolonged detention violated the Fourth Amendment. Accordingly, the
district court erred in denying Spears’s motion to suppress the evidence
obtained as a result of this unlawfully prolonged detention. Because Spears’s
conviction was obtained with evidence that should have been suppressed, we
vacate Spears’s conviction and sentence. 3
                              IV. CONCLUSION
      For the foregoing reasons, the district court’s decision denying Spears’s
motion to suppress evidence is reversed, and Spears’s conviction and sentence
are vacated.    VACATED AND REMANDED for further proceedings not
inconsistent with this opinion.




      3 Because we vacate Spears’s conviction and sentence on this Fourth Amendment
ground, we need not reach the other issues raised on appeal.
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                                      No. 14-11267
GREGG COSTA, Circuit Judge, specially concurring:
       It is a close call whether the officers had reasonable suspicion to believe
that Spears was involved in drug trafficking, if not at the inception of the stop
then at least after his interaction with law enforcement. A brief stop in the
driveway of a known drug dealer on a day when there was reason to believe a
deal   was     going    down;     evasive     answers     to    officers;   an    apparent
misrepresentation about where Spears had been (“visiting a relative” is not
consistent with staying inside a vehicle in a driveway)—for the reasons well
explained in the majority opinion, standing alone these might not amount to
much. But add them together, and things start to get suspicious.
       I would not decide the reasonable suspicion question, however, 1 because
there is a more straightforward basis for suppressing the evidence obtained
during the search of Spears’s vehicle: even if reasonable suspicion of criminal
wrongdoing existed, the traffic stop was unreasonably long. Like the street-
corner Terry stop on which it is based, a traffic stop supported by reasonable
suspicion of wrongdoing must be “temporary and last no longer than is
necessary to effectuate the purpose of the stop.” United States v. Brigham, 382
F.3d 500, 507 (5th Cir. 2004) (en banc). Indeed, given how common routine
traffic stops are, it is lengthy roadside detentions that represent the more
unusual and greater intrusion on Fourth Amendment interests. Cf. Rodriguez
v. United States, 135 S. Ct. 1609, 1615-16 (2015) (rejecting de minimis rule




       1 The district court found that there was probable cause of drug trafficking at the
inception of the stop. That would mean officers could have arrested Spears and conducted a
search of his vehicle solely on the basis for observing him in the driveway of 1251 New York.
The officers apparently did not believe they had this authority, thus the lengthy stop during
which they were trying to establish probable cause. Although the inquiry does not depend
on the officer’s subjective views, I agree with them that visiting a known drug trafficking
location alone is insufficient to establish the higher standard of probable cause.
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                                  No. 14-11267

that would have allowed officers to prolong a stop for just a few minutes while
waiting for a canine to arrive because any unjustified prolonging of stop is
unlawful).
      The seizure of Spears rose to the level at which those concerns are strong,
lasting close to forty minutes before the discovery of the bag of money in Loera’s
vehicle prompted the search of Spears’s vehicle. The district court found that
this significant length of time did not pose a constitutional problem for two
reasons: 1) “the defendant’s resistance to lawful commands”; and 2) the
“officer’s diligent efforts to dispatch a canine unit to the scene.” The first is
readily dispelled. Spears delayed the weapons pat down by about a minute
and his subsequent transfer to the police car by about two minutes. Both of
these events occurred within the first sixteen minutes of the stop, so they
cannot be the reason the stop continued for an additional period more than
twice that long.
      What about the attempts to find a canine, which is often the issue in
challenges to the length of a traffic stop? See, e.g., Rodriguez, 135 S. Ct. at
1609; United States v. Pack, 612 F.3d 341, modified on denial of reh’g, 622 F.3d
383 (5th Cir. 2010).      For starters, some testimony indicates that law
enforcement had given up on finding a dog.         The local police officer who
initiated the stop testified that they “were unable to locate a canine that was
available” and had stopped looking. There is evidence suggesting the contrary,
however, as a recorded radio communication indicates that at least someone
was still “working on getting [] one.” This general statement, with no specifics
about who was being contacted or when, is still likely enough to support the
district court’s factual determination that the officers were still pursuing a
canine.
      It is the conclusion at the next step of that analysis—that it was
reasonable to continue the stop for forty minutes while those unsuccessful

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                                  No. 14-11267

attempts to find a canine continued—that runs into a problem. The district
court cited Pack to support the length of the stop here, noting that it upheld
the reasonableness of a stop lasting just under 35 minutes. But in Pack, the
canine arrived at the scene 33 minutes after the stop. Pack, 612 F.3d at 345–
46 (stop at 8:45 a.m.; canine arrival at 9:18 a.m.). At that point in this stop,
and for a number of minutes that followed, officers were still merely hoping to
find a canine.
      There is a vast difference between a situation in which a canine has
already arrived and one in which a canine has not even been located. In the
former, the end of the “reasonable suspicion” stop is in sight. If the dog alerts,
there is probable cause. If it does not, the driver should be on his way. In
contrast, the latter situation looks like the “indefinite detention” that the low
threshold of reasonable suspicion cannot support. Pack, 612 F.3d at 361–62.
It is purely speculative that a dog will ever be found, and the odds of finding
one are low given that lengthy efforts to locate the dog had thus far proven
unsuccessful. Any dog that is found at this late juncture is likely to be far away
as it would have been logical for officers to first contact nearby canine units.
So even if a canine is finally located at minute 40, or 45, or 50, it would likely
be well into the second hour of the stop before the canine arrives.
      The 35 minutes it took for the Pack canine to arrive approaches the outer
limits of the length of stops that courts generally allow. See United States v.
Foreste, 780 F.3d 518, 527 (2d Cir. 2015) (citing cases that show 30 to 38
minutes as being “the range that this and other courts have found reasonable
for similar canine investigations”); United States v. Hardy, 855 F.2d 753, 760
(11th Cir. 1988) (50 minutes for dog to arrive reasonable when dog was
“immediately” located). Those cases allowing lengthier stops are ones in which
the canine was “on the way” much earlier in the stop. See, e.g., United States
v. Schlieve, 159 F. App’x. 538, 540–41 (5th Cir. 2005) (attempt to locate canine

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                                 No. 14-11267

officer lasted ten minutes, canine arrived 46 minutes after reasonable
suspicion developed and a little more than an hour after initial stop for traffic
violation). The government cites no case, nor have I found one, in which forty
minutes was held to be a reasonable time in which to still be looking for a dog
without any specific lead that one might be available. Keeping a car and its
driver on the side of the road for that length of time based on nothing more
than a remote hope that a canine might finally turn up is unreasonable.




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