                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                          June 5, 2012
                                                                     Elisabeth A. Shumaker
                                         PUBLISH                         Clerk of Court

                       UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.                                                            No. 10-3336
 DENNIS DEAN NEFF,

        Defendant-Appellant.



            APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF KANSAS
                      (D.C. No. 5:09-CR-40071-JAR-1)


Christopher Joseph, Joseph & Hollander, LLC, Topeka, Kansas, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.


Before BRISCOE, Chief Judge, BALDOCK and LUCERO, Circuit Judges.


BRISCOE, Chief Judge.


       Defendant-Appellant Dennis Dean Neff entered a conditional guilty plea on one

count of traveling in interstate commerce with the intent to distribute cocaine, in violation

of 18 U.S.C. § 1952(a)(1). He was sentenced to sixty months’ incarceration. Under the
terms of the plea agreement, Neff reserved his right to appeal the district court’s denial of

his motion to suppress evidence.

       On appeal, Neff argues that the state trooper’s initial stop of his vehicle was

unconstitutional because the trooper lacked reasonable, articulable suspicion of criminal

activity under Terry v. Ohio, 392 U.S. 1 (1968). We conclude that the facts known to the

trooper at the time of the initial stop did not rise to the level of reasonable, articulable

suspicion by providing a particularized and objective basis for wrongdoing. Exercising

jurisdiction under 28 U.S.C. § 1291, we reverse the district court’s denial of the motion to

suppress and remand with directions to vacate Neff’s conviction.

                                                I

       Around noon on July 31, 2009, Neff was driving eastbound on a rural stretch of

Interstate 70 through Wabaunsee County, Kansas. He passed three signs, posted by

Kansas Highway Patrol (KHP) troopers along the highway, that read “Drug Check

Ahead” and “Drug Dogs in Use” in English and Spanish. In reality, there was no

checkpoint on the interstate. Instead, troopers had positioned themselves near the Spring

Creek Road exit ramp, just beyond the signs, to watch for vehicles attempting to evade

the purported drug check. The Spring Creek Road exit leads to “a rural, gravel road

speckled with residences” but no businesses. ROA, Vol. 1 at 46.

       KHP Lieutenant Kirk Simone was stationed on the far side of the eastbound exit

ramp, where he used binoculars to monitor vehicles that used the exit. A second officer,

Trooper Brian Smith, waited on the south side of the highway near the exit to observe

                                               2
vehicles “as they went off the exit ramp when Lieutenant Simone called them out.” Id.,

Vol. 2 at 14. When Lieutenant Simone saw Neff’s red Chevrolet Monte Carlo take the

exit ramp, he radioed Trooper Smith to watch for the vehicle.

       Trooper Smith, driving a marked patrol car, followed Neff after he took a left turn

on to Spring Creek Road and began driving north. As he tailed Neff, he radioed the

dispatcher to check the car’s license plate number. The dispatcher responded that the tag

was registered to an address in nearby Topeka, Kansas. Continuing his pursuit, the

trooper followed Neff past one residential driveway before stopping to watch the car turn

into a second driveway. Neff briefly stopped his car in the driveway and turned his head

toward the road. Before he started to back out of the driveway, Neff looked at the trooper

and gave him a “startled look.” Id. at 20. He then backed out of the driveway, turning

the car back in the direction of the interstate. By this time, Trooper Smith had positioned

his patrol car in the middle of the road and had gotten out of the vehicle. Now standing in

the middle of the road, the trooper put out his hand to signal for Neff to stop. He had not

observed Neff commit any traffic violations. Neff stopped and rolled down his window.

       Trooper Smith proceeded to investigate Neff and the vehicle’s two passengers.1

Neff told the trooper that they were driving from Junction City, Kansas, where they had

gone to look at a car. The trooper asked Neff to get out of the car, and he conducted a

       1
          Ralfeal Eron Carr, who was sitting in the front passenger seat, was indicted with
Neff on August 12, 2009, and he filed a separate motion to suppress that is not part of this
appeal. See Mem. & Order Denying Defs.’ Mots. to Suppress at 6-7, United States v.
Carr, No. 5:09-CR-40071-JAR-2 (D. Kan. Jan. 5, 2010) (Doc. 41). A second passenger,
referred to only as “Meleka,” was in the back seat. Id. at 4.

                                             3
brief patdown.2 Finding no weapons or contraband, the trooper continued to ask Neff

questions. He explained that he thought it was odd for a car with Shawnee County tags to

use the Spring Creek Road exit, implying that Neff had used the exit to avoid a drug

checkpoint. Neff then volunteered, “I have a crack pipe on me.” After first calling for

backup, the trooper searched the passenger compartment of the car and found nothing.

He then used the car’s key fob to activate the trunk release. In the trunk, he found

zippered duffel bags that contained seven kilogram-sized brick-shaped objects, later

determined to contain cocaine, and $10,000 in U.S. currency. The trooper placed the

three occupants of the car under arrest.

        A grand jury indicted Neff on two counts: (1) conspiracy to distribute and possess

with the intent to distribute approximately seven kilograms of cocaine, in violation of 21

U.S.C. § 846; and (2) knowingly and intentionally possessing with intent to distribute

cocaine, in violation of 21 U.S.C. § 841(a)(1). Neff moved to suppress the admission of

the evidence seized from the car. He argued that the initial stop violated his Fourth

Amendment rights because (1) he had not committed a traffic violation, and (2) the

trooper lacked reasonable suspicion to believe he was engaged in criminal activity. He

argued that there was no “legal reason, beyond sheer speculation” for the stop. Id., Vol. 1

at 20. At the suppression hearing, Trooper Smith provided this testimony regarding the

stop:



        2
        Because of our ultimate disposition in this case, we do not reach the issue of
whether the trooper had reasonable suspicion to conduct this brief patdown search.

                                             4
              The reason I stopped him is they got off the interstate after
              seeing the drug check lane ahead signs, it was a Shawnee
              County car went into a rural Wabaunsee County area, pulling
              into a driveway where I don’t think the vehicle belonged, the
              surprised look that the driver gave me, the short time that they
              stayed there, the surprised look that he gave me. I thought
              something is very suspicious about this that I didn’t really
              care for or didn’t like. Therefore, I stepped out of the vehicle
              when he pulled out. That’s when I stopped them.

Id., Vol. 2 at 69. Following up on that testimony, the government argued that the trooper

had reasonable suspicion based on two separate grounds. First, Neff was “patently

evasive” when he avoided “a clearly marked drug checkpoint on I-70 by exiting the

highway, and then proceeded onto a rural dirt road and randomly pulled into a private

drive.” Id., Vol. 1 at 30. A “second and independent basis for stopping the vehicle” was

“that the vehicle had a registration plate from Shawnee County, it was driving in a fairly

secluded and rural area in Wabaunsee County, and it pulled into a private drive where it

apparently had no legitimate business.” Id. at 35-36.3 The government conceded that

some of these actions were consistent with innocent travel, but counsel argued that the

totality of the circumstances rose to the level of reasonable suspicion.

       The district court denied Neff’s motion to suppress. In considering the initial stop,

the court found that the totality of the circumstances were sufficient to give the trooper

reasonable suspicion to justify a short investigative detention. The court gave particular


       3
          The government also argued that the trooper “could have reasonably concluded
that [the car’s] occupants were scouting properties in the area for possible burglaries.” Id.
At 35. We note, however, that the trooper made no mention of this rationale when
providing his reasons for the stop.


                                              5
credence to the rural location of the Spring Creek Road exit, concluding that “[t]his

particular Exit . . . had very little utility for Interstate travelers unless they were seeking to

access the houses located on those particular gravel roads.” Id. at 55. In addition, Neff

exhibited “uncertain driving patterns immediately after passing signs indicating a drug

check.” Id. at 57. This included the fact that Neff “did not immediately loop back on to

the Interstate at the first available opportunity, nor did he use the first available private

driveway to turn around.” Id. at 56-57. Moreover, Neff’s “license plate indicated he did

not live in Wabaunsee County” and he “seemed unsettled and immediately pulled out of

the private drive.” Id. at 57.

       As part of a plea agreement, Neff waived his right to be charged by indictment,

and the government filed an information charging Neff with one count of traveling in

interstate commerce with intent to distribute cocaine, in violation of 18 U.S.C. §

1952(a)(1). Neff pleaded guilty to the charge in the information, and the charges in the

indictment were dismissed on the government’s motion. He preserved his right to appeal

the district court’s denial of his motion to suppress in a plea agreement.

                                                II

       Neff’s sole argument on appeal is that the district court erred in denying his motion

to suppress the evidence recovered from the trunk of the car. He contends that Trooper

Smith’s decision to stop the car was based on a hunch that criminal activity was afoot, not

reasonable, articulable suspicion. He also argues that the district court gave undue weight

to factors that are “entirely consistent with innocent travel” and “susceptible to varying


                                                6
interpretations.” Aplt. Br. at 13.

       “On appeal from the denial of a motion to suppress, we review the district court’s

factual findings for clear error, its conclusions of law de novo, and view the evidence in

the light most favorable to the prevailing party.” United States v. Gallegos, 314 F.3d 456,

458 (10th Cir. 2002) (citing United States v. Maden, 64 F.3d 1505, 1508 (10th Cir.

1995)).

                                             A

       This case presents the familiar question of what level of proof is required to

establish reasonable, articulable suspicion of criminal activity. As a general matter,

“police can stop and briefly detain a person for investigative purposes if the officer has a

reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’

even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989)

(quoting Terry, 392 U.S. at 30). In reviewing an investigatory stop for reasonable

suspicion, we must consider “the ‘totality of the circumstances’ of each case to see

whether the detaining 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)). While certain facts, taken in isolation,

may be “quite consistent with innocent travel,” these facts may, in the aggregate, add up

to reasonable suspicion. Sokolow, 490 U.S. at 9. “Indeed, Terry itself involved ‘a series

of acts, each of them perhaps innocent’ if viewed separately, ‘but which taken together

warranted further investigation.’” Id. at 9-10 (quoting Terry, 392 U.S. at 22).


                                              7
        While the legal framework for a Terry stop is familiar, we have never squarely

confronted the “ruse drug checkpoint” operation utilized by KHP in this case. At least

some of the conduct relied upon in the trooper’s reasonable suspicion analysis was

prompted by a law enforcement tactic that was designed to elicit, or at least expose,

suspicious behavior. While we have approved the use of ruse drug checkpoint signs in

dicta,4 other courts have had a greater opportunity to refine their jurisprudence in this

area.

        At the outset, we note that the Supreme Court has held “actual” roadside drug

checkpoints are unconstitutional. In City of Indianapolis v. Edmond, 531 U.S. 32, 48


        4
          See United States v. Flynn, 309 F.3d 736, 738 (10th Cir. 2002). In Flynn, the
defendant “made an abrupt lane change and immediately took the exit ramp” just after
passing a sign reading “Drug Checkpoint 1/3 mile ahead.” Id. at 737. When the car
reached the top of the ramp, the defendant “stopped his car briefly while his passenger . . .
opened the door and dropped a large sack from the car.” Id. Officers hiding in
underbrush near the exit ramp emerged to examine the sack, which contained
methamphetamine. Id. They advised the officers on the highway of the contents, and
officers stopped and arrested the driver. Id. On appeal from the denial of a motion to
suppress, the defendant cited Edmond for the proposition that his abandonment of the
drugs was involuntary in response to an illegal narcotics checkpoint. Id. at 738. We
rejected this argument because “Flynn never reached a drug checkpoint,” and “he acted
voluntarily in response to a ruse established by the police.” Id. That ruse, we said, did
“not constitute illegal police activity.” Id. (citing United States v. Klinginsmith, 25 F.3d
1507, 1508 (10th Cir. 1994)). The officers “developed a reasonable individualized
suspicion of wrongdoing” sufficient to stop the car when the officers discovered that the
discarded sack contained drugs. Id. at 739 (citing Edmond, 531 U.S. at 37).

       Flynn is not squarely on point because the officers in that case had more evidence
than just observing a vehicle take an exit before a posted drug checkpoint. The officers in
Flynn observed a passenger drop a sack out of the car’s window, and they were quickly
able to ascertain that the sack contained narcotics. These facts alone provided probable
cause to stop the vehicle. Thus it was unnecessary to justify the stop on the basis of the
driver’s decision to use a highway exit after passing checkpoint signs.

                                              8
(2000), the Court held that a narcotics checkpoint whose primary purpose “is ultimately

indistinguishable from the general interest in crime control” violates the Fourth

Amendment. In that case, Indianapolis police had established vehicle checkpoints in an

effort to interdict illegal drugs. Id. at 34. The roadblocks were staffed by approximately

thirty officers who would “stop a predetermined number of vehicles.” Id. at 35. The

checkpoints were generally operated during the day and were identified with signs

reading, “NARCOTICS CHECKPOINT ___ MILE AHEAD, NARCOTICS K-9 IN USE,

BE PREPARED TO STOP.” Id. at 35-36 (internal quotation marks omitted). The

officers would stop groups of cars, investigating each one while other traffic proceeded

without interruption. Id. at 36. The Court concluded that the “primary purpose” of the

Indianapolis checkpoint operation “was to detect evidence of ordinary criminal

wrongdoing.” Id. at 41. The Court distinguished such a program from those that are

“designed primarily to serve purposes closely related to the problems of policing the

border or the necessity of ensuring roadway safety,” both of which the Court had

previously held to be constitutional. Id. at 42-43; see also Mich. Dep’t of State Police v.

Sitz, 496 U.S. 444, 451 (1990) (sobriety checkpoints constitutional); United States v.

Martinez-Fuerte, 428 U.S. 543, 561-64 (1976) (border checkpoints constitutional).

Despite the City of Indianapolis’s arguments that “the severe and intractable nature of the

drug problem” justified the checkpoint program, the Court “decline[d] to suspend the

usual requirement of individualized suspicion where the police seek to employ a

checkpoint primarily for the ordinary enterprise of investigating crimes.” Edmond, 531


                                             9
U.S. at 44 (emphasis added).

        In the wake of Edmond’s rebuke of suspicionless drug checkpoints, some law

enforcement organizations began the practice of setting up ruse drug checkpoints. In

what may be understood as the first generation of post-Edmond drug checkpoints, police

would set up “drug checkpoint ahead” signs on the highway but then operate a full-scale

checkpoint at the next (likely rural) off-ramp. The theory behind this alteration was that

the police would have an element of individualized suspicion for every vehicle that took

that ramp because there were few “legitimate” reasons for using an exit in an isolated

area.

        While this modification significantly minimizes the number of innocent drivers

subjected to police intrusion, these ramp drug checkpoints remain problematic because

their “primary purpose is ultimately indistinguishable from the general interest in crime

control.” See Edmond, 531 U.S. at 44, 48 (“Because the primary purpose of the

Indianapolis checkpoint program is ultimately indistinguishable from the general interest

in crime control, the checkpoints violate the Fourth Amendment.”). In United States v.

Yousif, the Eighth Circuit held unconstitutional a scheme involving “signs . . . placed

along the highway warning travelers that they were approaching a drug checkpoint further

down the highway, yet the checkpoint was actually located on the ramp which exited the

highway a short distance past the signs.” 308 F.3d 820, 823 (8th Cir. 2002). The officers

were instructed to stop every vehicle that took the exit after the ruse checkpoint signs. Id.

The court was unable to distinguish this ramp drug checkpoint program from the roadside


                                             10
drug checkpoint program held unconstitutional in Edmond because “its primary purpose

was the interdiction of drug trafficking” in the absence of any basis for individualized

suspicion. Id. at 827. The court recognized that while the modified program differed

from the practice in Edmond, the same constitutional problems persisted. While some

drivers may have taken the exit to avoid police conduct, that did not “create

individualized reasonable suspicion of illegal activity as to every one of them.” Id.

“Indeed, as the government’s evidence indicated, while some drivers may have wanted to

avoid being caught for drug trafficking, many more took the exit for wholly innocent

reasons—such as wanting to avoid the inconvenience and delay of being stopped or

because it was part of their intended route.” Id. at 827-28; see also United States v.

Huguenin, 154 F.3d 555, 556 (6th Cir. 1998) (holding unconstitutional, in a pre-Edmond

case, a roadside checkpoint that “was not operated for the ostensible purpose of detecting

intoxicated drivers, but as a pretext to stop drivers who had violated no traffic laws in

order to question them in an attempt to gain reasonable suspicion to search their cars for

narcotics”).

       In the wake of Edmond and Yousif, some law enforcement agencies began taking

the approach employed by the KHP in this case. For example, in a more recent case, the

police set up ruse drug checkpoint signs at the same point on the Missouri interstate as

they did in Yousif, right before the Sugar Tree Road exit. See United States v. Carpenter,

462 F.3d 981, 983 (8th Cir. 2006). But instead of operating a full-blown checkpoint at

the top of the exit ramp, the officers “‘watch[ed] for any nonlocal traffic that would exit


                                             11
the interstate’” and tried “‘to get reason to stop them.’” Id. When Christopher Carpenter

used the exit and turned onto the rural county road, an officer followed him. Id.

Carpenter soon “realized there were no services at the exit, and when he looked in his rear

view mirror, he saw that a police car was following him. Concerned that he had ‘driven

into a trap,’ he decided to make a U-turn and pulled onto the side of the road.” Id. The

officer parked behind Carpenter’s vehicle, activated his vehicle’s emergency lights, and

approached on foot. Id. The Eighth Circuit concluded that the stop was constitutional,

finding Yousif “readily distinguishable.” Id. at 986. Unlike Yousif, this police operation

“d[id] not involve an illegal checkpoint at which all vehicles exiting the highway were

stopped.” Id. The court reasoned that “Carpenter’s act of exiting just after the checkpoint

signs may be considered as one factor in the totality of circumstances, although it is not a

sufficient basis standing alone to justify a seizure.” Id. at 987. In forming reasonable

suspicion, the officer also could have relied on Carpenter’s out-of-state license plates and

the fact that he pulled over and parked on the side of the road for no apparent reason. Id.

The court explained that while “[s]ome innocent travelers with a quarter tank of gas may

leave a highway after drug checkpoint signs looking for fuel at an exit with no signs for

services,” those circumstances “are sufficiently unusual and suspicious that they eliminate

a substantial portion of innocent travelers, and provide reasonable suspicion to justify the

brief detention” of a vehicle. Id.

       More recently, in United States v. Prokupek, 632 F.3d 460 (8th Cir. 2011), officers

set up ruse checkpoint signs on an interstate and waited for vehicles to take the next exit.


                                             12
An officer observed a vehicle take the exit and turn onto the rural road at the end of the

off-ramp. Id. at 461. The officer explained that he stopped the driver because he failed to

indicate his turn off the highway, even though he had signaled his turn onto the rural road.

Id. The officer called in a drug dog, which alerted to the vehicle. Id. A search revealed

methamphetamine. Id. The officer gave conflicting testimony at the suppression hearing

that “clearly and affirmatively contradicted” his earlier statement to the driver that he

made the stop because he failed to indicate his intention to take the exit. Id. at 463. Also,

on appeal, the government conceded that the officer had not been in a position to observe

the vehicle’s exit from the interstate. Id. The government had not proffered an

alternative justification for the stop. Id. In light of these developments, the Eighth

Circuit held that the stop was unconstitutional. Id. The court noted that it had previously

held that “reasonable suspicion for a traffic stop cannot be based solely on the fact that a

driver exits an interstate after seeing a sign indicating that a drug checkpoint lies ahead

. . . [but] a traffic stop pursuant to a ruse checkpoint does not violate the Fourth

Amendment if the driver commits a traffic violation when exiting the interstate.” Id.

(citing Carpenter, 462 F.3d at 986-87; Wright, 512 F.3d at 471). The court concluded

that, without an observed traffic violation or some other indicia of wrongdoing, the stop

was unconstitutional.

                                              B

       We agree with the Eighth Circuit that a driver’s decision to use a rural highway

exit after seeing drug checkpoint signs may serve as a valid, and indeed persuasive, factor


                                              13
in an officer’s reasonable suspicion analysis. See, e.g., Carpenter, 462 F.3d at 987;

United States v. Klinginsmith, 25 F.3d 1507, 1510 n.1 (10th Cir. 1994) (listing as one

valid factor that “the defendants took an exit which was the first exit after a narcotics

check lane sign, and an exit that was seldom used”). But standing alone, it is insufficient

to justify even a brief investigatory detention of a vehicle. Here, of course, the

government points to a number of other factors that the trooper relied on in forming

reasonable suspicion, including: (1) Neff’s car had a Shawnee County license plate but

was driving in Wabaunsee County; (2) the exit was in a rural area without highway

services such as restaurants or gas stations; (3) Neff pulled into a private driveway where

he did not seem to have any reason to be; (4) Neff had a startled look on his face when he

saw the trooper.

                                              1

       We are mindful that a series of otherwise innocent actions may be sufficient, when

taken together, to support a finding of reasonable suspicion. See Arvizu, 534 U.S. at 277.

For example, a driver’s sudden reaction or evasive behavior in response to ruse

checkpoint signs may contribute to reasonable suspicion. See, e.g., United States v.

Smith, 396 F.3d 579, 581 (4th Cir. 2005) (vehicle approaching driver’s license checkpoint

“appeared to slam on its brakes” and turned onto a private gravel driveway about 810 feet

from the checkpoint). Along these lines, the government argues that Neff’s behavior in

response to the ruse checkpoint signs was “patently evasive and nervous.” Aplee. Br. at

11. Specifically, the government points to Neff’s decision to turn onto a rural road in a


                                              14
sparsely populated area, his decision to “randomly enter[] a private driveway of a

residence,” and his “startled and surprised look” upon seeing Trooper Smith. Id. The

government argues that Neff’s “evasion of the drug checkpoint qualifies as a species of

unprovoked flight—or avoidance—warranting the inference that criminal activity is

afoot.” Id. at 12.

       An individual’s “unprovoked flight upon noticing the police” and “nervous,

evasive behavior” are relevant factors in determining reasonable suspicion for a brief

investigatory stop. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). But the facts of

Wardlow must be taken in context. That case involved a pedestrian’s “headlong flight”

from an area of heavy narcotics trafficking after seeing a caravan of officers. Id. Casting

Neff’s conduct in the same light imputes a motive to evade police based on factors that

are, unlike in Wardlow, not probative of criminal activity. First, while Neff’s decision to

take the Spring Creek Road exit could be interpreted as evasive, it is difficult to equate

the decision to use an exit ramp off a busy highway with the Wardlow defendant’s

decision to flee on foot upon observing a caravan of officers in a high-crime area. See

id. at 121-22. Likewise, Neff’s driving pattern does not approach the level of suspicion of

a driver who “appeared to slam on [the] brakes” just before reaching an actual

checkpoint. See Smith, 396 F.3d at 581. The connection between the checkpoint signs

and Neff’s decision to use the nearby Spring Creek Road exit was tenuous. There was no

testimony that Neff suddenly swerved to make the exit, changed lanes abruptly, or

otherwise drove erratically in response to the signs.


                                             15
       Second, Neff’s decision to turn around in a driveway is plausibly evasive. The

government suggests turning around in the driveway was part of Neff’s pattern of evasive

conduct, but without some evidence Neff was even aware of the trooper’s presence, his

turning around in the driveway provides minimal support to justify the stop. In contrast,

the defendant in Carpenter realized he was being followed, made a U-turn, and pulled to

the side of the road and stopped. Similarly, Neff’s “startled look” adds little of value to

the equation. Exhibiting surprise at the sudden appearance of an officer on a rural road is

hardly comparable to the “nervous, evasive behavior” the Court discussed in Wardlow.

See 528 U.S. at 124-25.

       These facts, when taken together, do not fairly suggest that Neff was attempting to

evade police. To be sure, an officer is “entitled to make an assessment of the situation in

light of his specialized training and familiarity with the customs of the area’s inhabitants.”

Arvizu, 534 U.S. at 276. But even considering the totality of the circumstances, Neff’s

conduct conformed to the patterns of everyday travel. While “Terry accepts the risk that

officers may stop innocent people,” Wardlow, 528 U.S. at 126, “[t]he articulated factors

together must serve to eliminate a substantial portion of innocent travelers before the

requirement of reasonable suspicion will be satisfied.” United States v. Brugal, 209 F.3d

353, 359 (4th Cir. 2000) (en banc). Here, the factors articulated by the trooper “are not

probative of behavior in which few innocent people would engage.” Id.

                                              2

       We join the Eighth Circuit in holding that a driver’s decision to use a rural


                                             16
highway exit after passing drug checkpoint signs may be considered as one factor in an

officer’s reasonable suspicion analysis, “although it is not a sufficient basis standing

alone to justify a seizure.” Carpenter, 462 F.3d at 987; see also Prokupek, 632 F.3d at

462 (“[R]easonable suspicion for a traffic stop cannot be based solely on the fact that a

driver exits an interstate after seeing a sign indicating that a drug checkpoint lies ahead.”).

       A Fourth Amendment seizure that relies solely on a driver’s decision to use a rural

or “dead exit” following checkpoint signs falls short of the requirement of individualized,

articulable suspicion of criminal activity. See United States v. Wright, 512 F.3d 466, 471

(8th Cir. 2008) (“[T]roopers were only to stop vehicles for which they had individualized

suspicion of a traffic violation. In these circumstances use of a ruse checkpoint did not

violate Wright’s constitutional rights.”); cf. Roth v. Green, 466 F.3d 1179, 1182-83 (10th

Cir. 2006) (describing a ruse checkpoint operation at a rural highway exit in Colorado

where “[n]o stops were to be made unless officers observed or otherwise had reasonable

suspicion of some type of illegal activity associated with a particular vehicle”).

       We hold that an officer must identify additional suspicious circumstances or

independently evasive behavior to justify stopping a vehicle that uses an exit after ruse

drug checkpoint signs.5 Neff’s exit from the interstate after seeing the drug checkpoint


       5
          In many so-called “ruse drug checkpoint” cases, an officer pulls over a vehicle
that uses an exit after ruse checkpoint signs and then commits a traffic violation, often
failing to come to a complete stop at the end of an off-ramp. See, e.g., United States v.
Chavez Loya, 528 F.3d 546, 552 (8th Cir. 2008) (failure to observe stop sign at end of
ramp); United States v. Wright, 512 F.3d 466, 467 (8th Cir. 2008) (same); United States
v. Williams, 359 F.3d 1019, 1020 (8th Cir. 2004) (same); United States v. Martinez, 358
                                                                                  (continued...)

                                              17
signs, even when coupled with the additional evidence the trooper observed, was

insufficient to support a finding of reasonable, articulable suspicion to stop Neff’s

vehicle. The trooper did not observe a traffic violation, and the facts he gathered

after Neff left the interstate contributed only marginally to reasonable suspicion. Neff

was driving a vehicle registered to the adjoining county, took an exit onto a gravel road in

a rural area, pulled into a driveway and stopped, looked “startled” or “surprised” when he

saw the trooper, and then backed out of the driveway as if to turn around. Rather than

individually scrutinize and dismiss individual factors, we simply hold that the facts

presented here do not amount to a “particularized and objective basis for suspecting legal

wrongdoing.” Arvizu, 534 U.S. at 273 (internal quotation marks omitted).

                                             III

       On these facts, the trooper did not have reasonable suspicion to justify the initial

stop of Neff’s vehicle. For that reason, the district court should have suppressed the

seized evidence as obtained in violation of the Fourth Amendment. We therefore

REVERSE the district court’s denial of the motion to suppress and REMAND with

directions to vacate Neff’s conviction.



(...continued)
F.3d 1005, 1006-07 (8th Cir. 2004) (same). Because a traffic stop is independently
justified when an officer observes a violation of a traffic law, these cases are inapposite.
See United States v. Prokupek, 632 F.3d 460, 462 (8th Cir. 2011) (“[S]ince any traffic
violation, however minor, provides probable cause for a traffic stop, a traffic stop
pursuant to a ruse checkpoint does not violate the Fourth Amendment if the driver
commits a traffic violation when exiting the interstate.” (citations, quotation marks, and
brackets omitted)).

                                             18
