                                                                     [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR TH E ELEV ENTH C IRCUIT
                                                                 FILED
                         ________________________
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                               No. 02-15891
                                                            October 22, 2003
                         ________________________
                                                           THOMAS K. KAHN
                                                               CLERK
                       D. C. Docket No. 02-00143-CR -N


UNI TED STA TES OF A MER ICA,

                                                             Plaintiff- Appe llant,

                                    versus

JESS IE JER OM E PE RKIN S, JR.,
JOH NNY LEW IS SC OTT ,

                                                          Defen dants-A ppellees.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        _________________________

                              (October 22, 2003)

Before DU BINA, B ARKE TT and H ILL, Circuit Judges.
BARKE TT, Circuit Judge:

       The United States appeals from the trial court’s order granting the motions

of Jesse Jerome Perkins Jr. and Johnny Lewis Scott to suppress all statements made

and ph ysical evid ence ob tained du ring a traf fic stop fo r the issua nce of a tr affic

warning citation. Following an evidentiary hearing, the Magistrate Judge

recommended that the motions be granted. The district court accepted the

Magis trate Judg e’s recom menda tion, and we affir m these d ecisions.

                                   I. BACKGROUND

       The essential facts of this case are not in dispute and are fully stated in the

Magistrate Judge’s recommendation. Officer Colston of the Alabama Highway

Patrol w as patrollin g the inter state wh en he ob served a maroo n Plym outh

automobile with a Florida license plate cross the white fault line and veer onto the

shoulder of the highway. Fearing that the driver was falling asleep or under the

influence of drugs or alcohol, Colston initiated a traffic stop and approached the

passeng er side of the vehic le wher e Scott w as seated, e xplainin g to both defend ants

that he stopped them to ensure that Perkins, who was driving, was not asleep or

under the influence of drugs o r alcohol. After inspecting Perkins’ driver’s license

and insu rance inf ormatio n, Colsto n asked Perkin s to get ou t of the car so he co uld

give Perkins a warning ticket for a lane violation, assuring him that, after the



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issuance of the warning citation, he would be free to leave. Scott remained in the

vehicle.

       After b riefly searc hing P erkins fo r weap ons, Co lston then directed h im to sit

in the patrol car while he completed the warning ticket. Noticing the Tampa

address on Perkins’ Florida driver’s license, Colston asked Perkins if Tampa was

his ultimate destination. Perkins’ negative response prompted Colston to ask him a

series of questions about his residency, employment, and destination. Perkins

explained that he had once lived in Tam pa but had since relocated to Mo ntgomery,

Alabama , where he w as employed at Rhodes F urniture. In resp onse to Co lston’s

questions about his destination, Perkins indicated that he was headed to Greenville,

Alabama. Accord ing to Colston, Perkins w as extremely nervous, breathed rapidly,

and rep eated Co lston’s qu estions b efore an swerin g them. P erkins w as not fre e to

leave du ring this q uestionin g.

       Colsten then rad ioed the d ispatch o fficer to co nduct a d river’s licen se check .

While waiting for the response, Colston asked Perkins if Scott lived in Tampa or

Montgomery. Colston also asked Perkins more detailed questions about how long

he had lived in Montg omery, w hen he w as going to g et an Alabam a driver’s

license, and whom he was going to visit in Greenville. Perkins told Colston that he

was going to visit his cousin, Shantay. After the driver’s license check revealed



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that Perkins’ license was valid and that he had no outstanding criminal warrants,

Colston gave the completed warning ticket to Perkins for his signature. Colston

testified that, after completing the warning citation, he was finished with that

portion of his investigation relating to the traffic stop. However, Colston

continued to detain Perkins because of his nervousness; what he perceived as

Perkins’ evasive behavior in response to his questions; and his hunch that Perkins

was be ing untr uthful ab out his d estination . Colston subseq uently de cided to

question Scott ab out his d estination .

       Colston asked S cott to iden tify himse lf and qu estioned him abo ut his

destination. Scott explained that he and Perkins were going to Greenville. When

Colston asked w hom h e wou ld be visitin g in Gr eenville, S cott told h im he w ould

be visiting a girl named Quinn. Colston also asked Scott if the car contained any

contraband or other illegal substances. Scott disavowed any knowledge of any

narcotics or other contraband. Colston testified that Scott was not free to leave

during this ques tioning.

       Without further inquiry, Colston returned to his patrol car, retrieved the

signed warning citation from Perkins, and asked whether the vehicle contained any

contraband or other illegal substances. When Perkins said no, Colston asked for

Perkins’ permission to search the vehicle. Perkins refused to consent, and Colston



                                            4
then called the dispatch officer and requested a drug-sniffing dog. When the canine

unit arrived, Colston removed Scott from the vehicle, conducted a brief pat-down

search for weapons, and placed him in the backseat of the patrol car. Colston left

the defendants in the car while he conferred with the canine unit officer. Unaware

that their conversation was being taped, Scott disavowed any knowledge of the

existence of narco tics, and b oth defe ndants d ebated ab out wh ether the d og wo uld

be able to find dru gs. Afte r conclu ding his conver sation w ith the can ine unit

officer, Colston joined Perkins and Scott in the patrol car and again asked if any

narcotics , contrab and, or o ther we apons w ere in the v ehicle. W hen Pe rkins said

no, Colston rephrased the question, asking Perkins if he had any narcotics for

personal use. Again, Perkins denied the presence of narcotics. Undaunted,

Colston asked Perkins to tell him the exact amount of narcotics that he had hidden

in the car. Perkins finally acquiesced, admitted that narcotics were in the car, and

offered to show Colston where they were hidden. Perkins was escorted to the

vehicle where he informed Colston that the drugs were in the center console, where

Colston then found them.




                                             5
                           II. STANDARD OF REVIEW

      The gr ant or de nial of a m otion to s uppres s eviden ce is review ed in this

Court a s a mixed question of law a nd fact. United States v. Holloway, 290 F.3d

1331, 1334 (11th Cir. 2002). We assess the district court’s findings of fact under

the clearly erroneous standard and review the application of the law to the facts de

novo. Id. The facts are construed in favor of the party that prevailed below which

in this case is Perkin s and S cott. United States v. Wilson, 894 F.2d 1245, 1254

(11th Cir. 1990).

                                  III. DISCUSSION

       The Fourth Amendment to the United States Constitution protects the right

of persons to be free from unreasonable searches and seizures. U.S. Const. amend.

IV. A seizure takes place “whenever a police officer accosts an individual and

restrains his freedom to walk away.” United States v. Brignoni-Ponce, 422 U.S.

873, 87 8 (197 5). Traf fic stops q ualify as se izures un der the F ourth A mendm ent.

Delaware v. Prou se, 440 U .S. 648 , 653 (1 979).

       The Supreme Court has identified at least three separate categories of police-

citizen enc ounters in determ ining w hich leve l of Fou rth Am endme nt scrutin y to

apply: (1) brief, consensual and non-coercive interactions that do not require

Fourth Amen dment s crutiny, Florida v. Bostick, 501 U .S. 429 (1991 );



                                            6
(2) legitimate and restrained investigative stops short of arrests to which limited

Fourth Amen dment s crutiny is a pplied, Terry v . Ohio, 392 U.S. 1 (1968); and (3)

technical arrests, full-blown searches or custodial detentions that lead to a stricter

form o f Four th Am endme nt scrutin y, Brow n v. Illino is, 422 U.S. 590 (1975).

      As the M agistrate Ju dge reco gnized:

             At issue in this case is the second type of encounter, com monly
             referred to as a Terry stop. United States v. P urcell, 236 F.3d 1274,
             1277 ( 11th C ir. 2001 ). . . . Terry requires that an officer have an
             objective , reasona ble susp icion of c riminal ac tivity. Pur suant to th is
             standard, a traffic stop must be “reasonably related in scope to the
             circums tances w hich justif ied the inte rference in the first p lace,”
             Purcell, 236 F.3d at 1277 (citing Terry, 392 U.S. at 20) . . . , and may
             not last “any longer than necessary to process the traffic
             violation” unless there is articulable suspicion of other illegal activity.
             Id. (citing United States v. Holloman, 113 F.3d 192, 196 (11th Cir.
             1997)).

Rec. of Magis. Judge, (Oct. 3, 2002) at 9.

      Unde r the exclu sionary r ule, evide nce obta ined in an encoun ter that is in

violation of the Fourth Amendment, including the direct products of police

misconduct and evidence derived from the illegal conduct, or “fruit of the

poisonous tree,” cannot be used in a criminal trial against the victim of the illegal

search an d seizure . United States v. Terzado-Madruga, 897 F .2d 109 9, 1112 (11th

Cir. 199 0). See also Weeks v. United States, 232 U .S. 383 , 391-9 3 (191 4).




                                             7
       Perkin s and S cott initially ar gue that th e duration of their traffic stop itself

was unconstitutional under Terry. Even construing the facts in favor of Perkins

and Scott, we agree with the Magistrate Judge that in this case the duration of the

traffic stop was no t unreaso nable. See Purcell, 236 F .3d 127 4, 1278 (finding that a

traffic stop totaling fo urteen m inutes is n ot unrea sonable on its face ); United

States v. Hardy, 855 F.2d 753, 761 (11th Cir. 1988) (holding that an investigative

stop of 5 0-minu te duratio n is not u nreason able). Cf. United States v. Place, 462

U.S. 696, 709, 710 (1983) (holding that a 90-minute stop is probably too long for a

Terry stop); United States v. Codd, 956 F.2d 1109, 1111 (11th Cir. 1992) (finding

that a two-and-a-half hour investigative detention is too long for a Terry stop).

       However, we conclude that the circumstances here do not give rise to the

requisite r easonab le suspicio n justifyin g contin ued dete ntion of Perkin s and S cott

after the warning ticket had been issued. A traffic stop may be prolonged where an

officer is able to articulate a reasonable suspicion of other illegal activity beyond

the traffic o ffense. Purcell, 236 F.3d at 1277. “While ‘reasonable suspicion’ is a

less dem anding standard than pro bable cau se and re quires a s howin g consid erably

less than p repond erance o f the evid ence, the F ourth A mendm ent requ ires at least a

minimal level of objective justification.” Illinois v. Wardlow, 528 U.S. 119, 123

(2000) (quoting United States v. Sokolow, 490 U .S. 1, 7 (1 989)). When making a



                                              8
determination of “reasonable suspicion,” we must “look at the ‘totality of the

circumstances’ of each case to see whether the d etaining officer has a

‘particularized and objective basis’ for suspecting legal wrongdoing.” United

States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449

U.S. 411, 417-18 (1981)). It is clear that “an ‘inchoate and unparticularized

suspicion’ or ‘hunch’ of criminal activity” is not enough to satisfy the minimum

level of o bjectivity re quired. Wardlow, 528 U.S. at 124 (quoting Terry, 392 U.S.

at 27).

          The Government argues that the totality of the following circumstances gave

rise to a reasonable suspicion of drug trafficking: (1) Perkins’ nervousness; (2) the

“odd behavior” of Perkins in repeating the questions Colston asked him; (3)

Perkin s’ posses sion of a Florida driver’s lic ense w hile claimin g to live in

Montgomery, Alabama; and (4) the “inconsistent” statements from Perkins and

Scott with regard to whom they were going to see in Greenville, Alabama.1


          1
              Perkins and Scott argue that the Magistrate Judge correctly determined that:

                    The government cannot rely on an inconsistent statement acquired
                    after an officer has already begun investigating matters unrelated to
                    the traffic stop as evidence of a reasonable suspicion of criminal
                    activity. . . . Colston’s testimony establishes that any
                    investigation related to the lane violation ended when he completed
                    the warning citation and gave it to Perkins for his signature.

Rec. of Magis. Judge at 11.


                                                     9
We fin d that thes e circum stances, se parately o r cumu latively, can not sup port a

legitimate inference of further illegal activity that rises to the level of objective,

reasona ble susp icion req uired un der the F ourth A mendm ent.

       First, the Supreme Court has noted that a traffic stop is an “unsettling show

of authority” that may “create substantial anxiety.” Delaware, 440 U .S. at 657 .

There is no reason w hy Colston should hav e reasonably suspected that Perkins’

nervou sness w as tied to an ything o ther than the fact tha t he was being m omenta rily

detained by an authority figure with police power over him. On cross examination,

Colston admitted that a nerv ous driv er is not in itself susp icious. Rec. of Magis.

Judge at 15 n.4 9. Furth ermore , repeating the ques tions of a police of ficer hard ly

constitutes “odd behavior”; it is easily a common symptom of “substantial anxiety”

that many habitually lapse into when experiencing fear. Indeed, it is a common

occurre nce at ora l argum ents befo re this Co urt by ev en the m ost seaso ned law yers.

Likewise, one cannot reasonably assume that a nervous person claiming to be an

in-state resident while in possession of an out-of-state license is lying about where

he or she is from and is thus a drug trafficker. There are many reasons one may

have failed to change the license including lack of time because of a recent move,



       We need not address this argument because we find that even with this “fact,” reasonable
suspicion does not exist here.


                                              10
cost, inconvenience, carelessness, or simple laziness. Finally, the answers given by

Perkins and Scott as to whom they were going to see in Greenville, Alabama, do

not sup port reas onable s uspicion . Perkin s told the o fficer that h e was g oing to v isit

his cous in Shan tay in Greenville. S cott told C olston th at he wa s going to

Greenville to visit a girl named Quinn. S cott’s answer did not contradict Perkins’

answer in any way. Perkins and Scott could have intended to see both persons

during their visit, o r Perkin s could h ave inten ded to v isit Shan tay while Scott

visited Q uinn.

       In this Circuit, we have required more than the innocuous characteristics of

nervousness, a habit of repeating questions, and an out-of-state license for giving

rise to reas onable s uspicion . See United States v. P ruitt, 174 F.3d 1215, 1221

(11th C ir. 1999 ) (holdin g that the f act that the d river w as Hisp anic and had an o ut-

of-state license plate was not enough to detain him beyond the issuance of the

speedin g ticket); United States v. T apia, 912 F.2d 1367, 1371 (11th Cir. 1990)

(“[B]eing Mexican, having few pieces of luggage, being visibly nervous or shaken

during a confrontation with a state trooper, or traveling on the interstate with Texas

license pla tes (not ye t a crime in Alabam a) . . . fail to su ggest tha t appellan t . . .

[was] en gaged in any criminal activity o ther than speedin g on the highw ay.”).




                                               11
       As Colston testified, following issuance of the traffic citation to Perkins, he

merely had a “hunch” based upon the totality of the circumstances that Perkins was

lying to him about his destination. This “hunch” led him to initiate a new

investigation of other criminal activity after the purpose of the traffic stop had

ended. Thus, the continued detention of Perkins and Scott beyond the issuance of

the traffic c itation, du ring w hich Co lston rep eatedly ask ed if there were d rugs in

the car and called in a drug dog, was unlawful. Since Perkins’ consent to the

search of the car was the product of an unlawful detention, “the consent was

tainted by the illegality and was ineffective to justify the search.” Florida v. Royer,

460 U.S. 491, 507-08 (1983) (plurality opinion). Therefore, any statements made

and evidence seized during the unlawful detention are to be excluded. Finally, we

emphasize that “the fact that [Colston’s] hunch ultimately turned out to be

correct– i.e. that [Perkins a nd Scott] were illegally transporting [drugs] is irrelevant

for pur poses of the Fo urth A mendm ent. To h old othe rwise w ould op en the do or to

patently illegal searches by government officials, who would attempt to justify the

legality of their conduct after-the-fact.” Pruitt, 174 F.3d at 1221 n.4.




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                                   IV. CONCLUSION

       Based on the foregoing, we conclude that Colston’s prolonged detention of

Perkin s and S cott beyo nd the iss uance o f the traffic citation w as unco nstitution al.

Colston’s inference from the totality of the circumstances that he observed was

merely an unpartic ularized h unch th at failed to r ise to the lev el of reaso nable

suspicion of other criminal activity. We thus AFFIRM the district court’s grant of

Perkins and Scott’s motions to su ppress.




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