Rehearing en banc granted by order filed 9/20/99;
published opinion filed 7/19/99 is vacated
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.
                                                                      No. 98-4255
ALEXIS A. BRUGAL; HENRY M.
ADAMES, M/O; REYNA M. DEJESUS,
F/O,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-97-1042)

Argued: January 29, 1999

Decided: July 19, 1999

Before WIDENER, MURNAGHAN, and HAMILTON,
Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Murnaghan wrote the majority
opinion, in which Judge Widener joined. Judge Hamilton wrote a dis-
senting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Miller Williams Shealy, Jr., Assistant United States
Attorney, Charleston, South Carolina, for Appellant. Ann Briks
Walsh, Assistant Federal Public Defender, Charleston, South Caro-
lina; Barry Francis Kenyon, New York, New York; Jared Sullivan
Newman, DAUGS, TEDDER & NEWMAN, Port Royal, South Caro-
lina, for Appellees. ON BRIEF: J. Rene Josey, United States Attor-
ney, Charleston, South Carolina, for Appellant.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

Here we have an appeal by the government from the district court's
suppression of evidence (drugs) found in the trunk of the defendants'
car. The government contends that the defendants' actions -- i.e.,
exiting the interstate after apparently noticing drug checkpoint signs
as well as other factors -- gave the police officers reasonable suspi-
cion to search the vehicle. The defendants argue that each of the fac-
tors upon which the government relies is in itself innocent and that
the factors when taken together simply do not add up to reasonable
suspicion. After reviewing the briefs and the record, we conclude the
district court's ruling suppressing the items turned up by the police in
such a search was correct.

I.

Brugal and two passengers, Adames and DeJesus, were driving
north on Interstate 95 near Ridgeland, South Carolina during the early
morning hours of October 31, 1997. As they approached Ridgeland,
South Carolina, their gasoline tank was three-quarters empty. Brugal
exited the interstate at Exit 22, a decision he would later regret.

At approximately 3:00 a.m., the South Carolina Highway Patrol
(SCHP) placed two "drug checkpoint ahead" signs on the side of
Interstate 95 near Exit 22, which is in Ridgeland. The signs, which
were placed at intervals of one thousand feet and five hundred feet
before the exit were made visible to motorists by safety flares and
reflective lettering.

There was no actual "drug checkpoint" on the interstate. Rather,
according to one of the troopers, the SCHP employed the ruse to

                     2
investigate traffic violations. To that end, two SCHP officers, Ser-
geant Honeycutt (at whose direction the signs were placed) and Jackie
Lynn Lawson, and Larry Shoemaker of the Ridgeland Police Depart-
ment went to Exit 22's off ramp to create a traffic checkpoint. When
cars exited the interstate, the officers would detain them to determine
whether the drivers had committed any traffic violations and possibly
whether any drugs were present.

Exit 22 led to Highway 17 South. The officers selected it because
they considered it a "dead" exit -- i.e. , the service stations and other
businesses to which its travel advisory sign led were closed. Although
the stores were in fact closed, the district court found that a motorist
using Exit 22 could reach the well-lit, 24-hour gas stations accessible
from Exit 21.

Sergeant Honeycutt left the checkpoint at 3:20 a.m. to respond to
an emergency elsewhere and left Trooper Lawson in charge of the
checkpoint. Brugal took Exit 22 during Honeycutt's absence, leaving
the interstate at approximately 3:30 a.m.1 Trooper Lawson stopped
Brugal and requested his driver's license and the vehicle's registra-
tion. Brugal produced his valid driver's license, which was issued in
New York, and his rental contract in lieu of the vehicle's registration.

Brugal gave Trooper Lawson his license and the rental contract.
The rental contract stated that the car had been rented in Miami and
was to be returned to Miami within the week. Trooper Lawson
observed that Brugal had already paid the rental fee and was other-
wise in compliance with the contract. Lawson then asked Brugal why
he had left the interstate and where he was going. Brugal told Lawson
that he needed fuel and was headed to Virginia Beach. Lawson
_________________________________________________________________
1 Brugal and the government dispute the location of the initial stop.
Brugal argues that Trooper Lawson stopped the car while he was in the
right lane of the exit ramp, which later merges into Highway 17 South.
The government, on the other hand, argues that Trooper Lawson stopped
Brugal near the stop sign at the end of the exit ramp. The district court
noted the disagreement but did not make an express finding as to Bru-
gal's exact location on the ramp. However, the district court's later dis-
cussion of Brugal's opportunity to seek gas on Highway 17 South
indicates that it resolved the ambiguity in his favor.

                     3
returned Brugal's license but kept the rental contract. The trooper
then looked into the vehicle, using his flashlight, and saw the three
pieces of luggage that the three occupants had with them. Lawson
then asked Brugal to pull over onto the shoulder of the road.

Brugal complied with Lawson's request and pulled off the road.
Lawson then pulled his unmarked cruiser behind Brugal's car, turned
on his headlights, and engaged the video camera mounted on the dash
of his cruiser. Lawson then requested that the three defendants step
out of the car, which they immediately did. He then asked Brugal if
he could search the vehicle. Brugal told the trooper, "no problem."
Trooper Lawson repeated his request to conduct a search, and Brugal
again consented.

Trooper Lawson proceeded to search the interior of the vehicle, but
found nothing. He then turned his attention to the three pieces of lug-
gage in the vehicle. Two of the three bags contained packages slightly
larger than bricks.2 Believing that the packages contained illegal nar-
cotics, Trooper Lawson arrested the defendants, impounded the vehi-
cle, and confiscated the packages. Further examination revealed that
the packages contained approximately eight kilograms of cocaine and
one kilogram of heroin.

II.

All agree that the checkpoint stop was a seizure that triggered a
Fourth Amendment analysis. See Michigan Dept. of State Police v.
Sitz, 496 U.S. 444, 450 (1990). The analysis applicable here is that
applicable to investigative detentions, since traffic stops more closely
resemble investigative detentions than custodial arrests. See United
States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992), cert. denied, 506
U.S. 926 (1992). The officers' actions here were constitutional if the
officers had reasonable suspicion that Brugal was engaged in criminal
activity. See id. at 877. The government's challenge is to the district
court's determination that the officers lacked reasonable suspicion to
pull Brugal over further. Under the standard announced in Ornelas v.
_________________________________________________________________
2 The third bag contained women's clothes, but no incriminating mate-
rials.

                    4
United States, 517 U.S. 690, 699 (1996), we review reasonable suspi-
cion determinations de novo. See id.

The government contends that the district court erroneously con-
cluded that reasonable suspicion was absent. It points to ten factors
that it claims constitute reasonable suspicion when viewed collec-
tively. They are: (1) Brugal exited I-95 at the first available exit after
the large, illuminated signs indicating that a drug checkpoint was
ahead (although there really was no drug checkpoint); (2) It was 3:30
a.m.; (3) Exit 22 is a "dead" exit, i.e. , it has no open stores or gas sta-
tions, and there is little lighting at that time of morning; (4) Brugal
was traveling north on I-95 from Miami, which is a major drug route
from a major source city for drugs; (5) Brugal claimed that his fuel
was low, but he had a quarter of a tank left; (6) Brugal passed two
exits within the previous ten miles at which there were 24-hour gas
stations whose signs were well lit and visible from the highway; (7)
Brugal possessed a New York driver's license; (8) Brugal rented the
car in Miami, which is a common pattern for drug dealers (i.e., flying
to Miami, renting a car and driving north); (9) Brugal and his two
comrades had little luggage, yet claimed that they were traveling to
Virginia Beach from Miami; and (10) The other persons who exited
at Exit 22 were from South Carolina and were headed to a South Car-
olina destination.3

Brugal contends that the district court correctly found that reason-
able suspicion was absent for the additional detention. He claims that
none of those factors themselves are acts of wrongdoing and that even
when viewed collectively, those factors apply to such a large number
of innocent people that no suspicion should have arisen. Compare
_________________________________________________________________
3 Trooper Lawson testified that when Brugal exited the car after being
asked to pull over for the second phase of the detention, he stretched in
such a way as to set off a "red flag" in Lawson's mind. Lawson testified
that he has been trained to interpret such movements by detainees, and
that Brugal's stretch indicated that he was under stress. However, Brugal
did not stretch until the officers already had made their decision to detain
him further. Thus, Brugal's stretch does not factor into our analysis.
Even if the stretch was an indication of nervousness, Brugal's circum-
stances -- he was pulled over by an officer on a dark exit ramp at 3:30
a.m. -- could well have caused that reaction.

                      5
Reed v. Georgia, 448 U.S. 438, 441 (1980) (holding that reasonable
suspicion was absent where the police only had information that the
defendant fit some of the drug courier profile characteristics and the
defendant made some possibly evasive movements because of the
possible applicability to large numbers of innocent people), with
United States v. Sokolow, 490 U.S. 1, 9-10 (1989) (holding that com-
pletely innocent behavior did give rise to reasonable suspicion). But
here no reasonable suspicion was revealed.

The Supreme Court has noted that "reasonable suspicion" is a term
that defies precise definition, and describes it as"`a particularized and
objective basis' for suspecting the person stopped of criminal activ-
ity." See Ornelas, 517 U.S. at 695-96 (citation omitted). Moreover, it
is a term that contemplates the "factual and practical considerations
of everyday life on which reasonable and prudent men, not legal tech-
nicians, act." Illinois v. Gates, 462 U.S. 213, 231 (1983) (citation
omitted).

More specifically, under both Supreme Court and Fourth Circuit
precedent, the determinations of police officers are entitled to some
deference. Although the Supreme Court recently held that determina-
tions of reasonable suspicion are subject to de novo review, it "hasten-
[ed] to point out that a reviewing court should take care to . . . give
due weight to inferences drawn from those facts by resident judges
and local law enforcement officers." See Ornelas, 517 U.S. at 699.
The Fourth Circuit has noted previously that in analyzing reasonable
suspicion, it is important to "credit[ ] the practical experience of offi-
cers who observe on a daily basis what transpires on the street."
United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993). The gov-
ernment would have us stop here and rule the search valid.

Even when deferring to the officers, however, we still conclude
that they had insufficient reason to suspect that Brugal and his com-
panions were involved in illegal activity when they ordered Brugal to
pull over for further investigation. Brugal does not claim that the ini-
tial traffic stop was unconstitutional, and the district court found that
it was proper under the Fourth Amendment. Trooper Lawson testified
that he and the other officers had set up a traffic stop just off the ramp
for Exit 22. The officers put up large, illuminated signs that stated that
there was a drug checkpoint ahead (although there really was no

                     6
checkpoint on I-95 itself). The officers did not search -- or even
request consent to search -- all exiting motorists for drugs; rather,
they considered the checkpoint they established at the exit to be a traf-
fic checkpoint. Thus, they checked motorists' driver's licenses and
registrations, and released those motorists who had committed no traf-
fic violations.

Traffic stops have a rather defined scope. We have held that when
conducting such a stop, the police:

          may request a driver's license and vehicle registration, run
          a computer check, and issue a citation. When the driver has
          produced a valid license and proof that he is entitled to oper-
          ate the car, he must be allowed to proceed on his way, with-
          out being subject to further delay by police for additional
          questioning.

Rusher, 966 F.2d 868 at 876 (quoting United States v. Guzman, 864
F.2d 1512, 1519 (10th Cir. 1988) (citations omitted)). As a result,
Brugal, who had committed no traffic violations, was entitled to con-
tinue his journey unless the officers had a justifiable reason to suspect
that he was engaged in illegal activity. See Rusher, 966 F.2d at 876-
77.

The government's principal argument is that Brugal left the inter-
state in response to the drug checkpoint signs, which it claims that the
district court found as a fact, and that fact alone justified the addi-
tional detention. However, that argument ignores two important
points. First, the district court did not find that Brugal had in fact left
the interstate for that reason, although it did find that the government
was entitled to that inference for the purposes of the suppression hear-
ing. Second, and more important, any inference that Brugal left the
interstate for that reason should have been dispelled by the informa-
tion gained at the traffic stop. We have concluded that reasonable sus-
picion was absent where we have found that the officers' additional
investigation should have allayed their concerns about criminal activ-
ity. See United States v. Sprinkle, 106 F.3d 613, 618-19 (4th Cir.
1997).

That last point is very important here. Assuming that the requisite
suspicion arose from Brugal's decision to exit the interstate when he

                     7
did, it certainly should have been allayed by Brugal's responses. After
stopping Brugal and checking his driver's license and registration,
Lawson asked Brugal why he selected Exit 22. Brugal told Lawson
that he was low on fuel. Brugal, having driven a long way, was low
on fuel -- his tank was three-quarters empty. Even the officers them-
selves later acknowledged that Brugal needed fuel.

The government responds to those facts by arguing that Brugal
passed by two well-lit, visible all-night gas stations in the ten mile
stretch preceding Exit 22. In particular, Exit 21, a mile south of Exit
22, led to such a gas station.

However, two facts render that argument insignificant. First, the
travel advisory sign leading to Exit 22 indicates that gas is available
at that exit. While those stations were closed at the time Brugal left
the interstate, nothing in the record suggests that Brugal had any rea-
son to know that.4 Second, the well-lit all-night gas station to which
Exit 21 led was accessible from Exit 22 and was visible from the top
of Exit 22's ramp. Had Brugal been allowed to continue up the ramp,
the very gas station to which the government refers would have been
visible and accessible to him. In short, Brugal proffered a valid and
easily verifiable (or refutable) reason for choosing Exit 22, and that
reason should have allayed any concerns that he was engaging in ille-
gal activity.

The government's other theory of Brugal's motives also falls short.
It contends that reasonable suspicion existed to search Brugal because
his rental of a car in Miami and subsequent travel north on Interstate
95 to New York, in the officers' experience, a common pattern fol-
lowed by drug smugglers. Those smugglers rent cars in Miami for
one-way travel and drive north on Interstate 95 to New York. How-
ever, two facts directly challenge that theory. First, there is no evi-
dence that Brugal was traveling to New York. When asked where he
was going, he told the officers that he and his passengers were on
their way to Virginia Beach. Second, the rental contract -- with
which Brugal had complied until he was stopped -- required Brugal
to return the car to Miami within the week. One-way travel was not
_________________________________________________________________
4 It is not disputed that Brugal is not from the area, and the travel advi-
sory sign does not indicate the gas station's hours of operation.

                     8
contemplated by the agreement. Thus, the facts before the officers
establish that Brugal did not fit into their general pattern of drug traf-
ficking behavior. Thus, neither Brugal's choice of exit nor mode of
travel created reasonable suspicion even when viewed with the
remaining factors below.

The dissent's arguments regarding Brugal's travel habits demon-
strate the extent of speculation required to conclude that Brugal was
engaged in illegal behavior. First, it argues that the police were prop-
erly suspicious of Brugal because he flew into Miami from New
York, rented a car and drove north. See post at 15. However, nothing
in the record even suggests that the police had any proof at the time
of the search that Brugal had flown in from New York or had arrived
in Miami from New York at any time close to his renting the car. At
the time of the search, all the officers knew of Brugal's connection
to New York was that he possessed a driver's license issued there.
Thus, all the police knew was that they had a New York driver who
rented a car in Miami. As even the dissent admits, there is nothing
inherently suspicious or unusual about a New Yorker renting a car in
Miami. See post at 14 ("Admittedly, standing alone, there is nothing
atypical about an individual from New York City renting a vehicle in
Miami. I am sure many individuals from New York City do so.").

Second, the argument with respect to Brugal's decision to rent the
car for round-trip, rather than one-way travel, also points out the lack
of reasonableness for suspecting illegal behavior. The dissent argues
that Brugal may well have been an intelligent criminal attempting to
outsmart police officers who were suspecting a one-way rental. How-
ever, were we to find that Brugal properly drew the officers' suspi-
cion by renting the vehicle for round-trip travel when the officers
believed that one-way travel was a hallmark of criminal activity, then
we would essentially make him indistinguishable from almost every
other person who rents a car. Most -- if not all-- automobile rental
contracts call for either one-way or round-trip travel. Considering
both choices to be equal marks of criminal activity only makes us
return to the proposition that drivers licensed in New York who rent
cars in Miami are suspicious. As stated above, we decline to brand all
such drivers as criminals.

                     9
The remaining factors relied upon by the officers, even when
viewed collectively, encompass such a "large category of presumably
innocent travelers" that reasonable suspicion did not attach. Reid, 448
U.S. at 441. For example, the second, fourth and ninth factors (late
night travel, travel from a source city and insufficient luggage for the
trip, respectively) were the combination of factors present in Reid,
and were rejected as a basis for finding reasonable suspicion even
when viewed collectively. See id. at 441. 5 But see Lender, 985 F.2d
at 154 (holding that lateness of hour is properly considered as a factor
raising suspicion). We have even remarked that courts place too much
reliance on travel from source cities. See United States v. Wilson, 953
F.2d 116, 126 (4th Cir. 1991). Even the government admits that the
last factor -- that Brugal was licensed to drive by the state of New
York -- is insignificant in itself. In light of the large number of driv-
ers from New York, and the lack of any evidence that Brugal had any
intention of returning there when he was stopped, we find that this
factor adds little to the analysis even when combined with the other
factors.

Given those facts, Brugal's case is distinguishable from those cases
cited by the government where the Supreme Court has held (or we
have held) that reasonable suspicion existed. None of the defendants
in Terry v. Ohio, 392 U.S. 1, 7 (1967), United States v. Sharpe, 470
U.S. 675, 683 n.3 (1985), Sokolow, 490 U.S. at 9-10, or Lender, 985
F.2d at 153, provided the police with innocent explanations of their
conduct, much less explanations that could be verified immediately to
refute the suspicions. Moreover, Sharpe and Lender are further distin-
guishable because the defendants in those cases evaded the police
after the police appeared and attempted to approach them. See Sharpe,
470 U.S. at 683, n.3 (stating that the defendant sped up as soon as the
officer pulled behind him and his friend); Lender, 985 F.2d at 154
(stating that the defendant "turned his back" and began to leave when
the police approached and "refused" to stop when the police requested
that he do so). As a result, we find that reasonable suspicion did not
_________________________________________________________________
5 In Reid, the defendant (and his friend) flew into Atlanta from Fort
Lauderdale, Florida (considered a source city for drugs) early in the
morning. Both the defendant and his friend carried only a carry-on bag.
See id. at 441.

                     10
exist to detain Brugal after his driver's license and rental contract
were verified.

The final question is whether Brugal validly consented to the
search. The district court did not reach the issue, but it is pressed here
as an alternative basis for reversing the district court's determination.
There is no question that Brugal told the officers that they may search
the vehicle. However, that consent was given after he was pulled over
to the side of the road for the additional detention that we have ruled
illegal. While the Supreme Court has maintained that the voluntari-
ness of a suspect's consent to search his belongings is a question of
fact determined in light of all of the circumstances, see Schneckloth
v. Bustamonte, 412 U.S. 218, 248-49 (1973), the Court has also inval-
idated consent by a suspect illegally detained. See Florida v. Royer,
460 U.S. 491, 507-08 (1983). We think that, under the circumstances
of this case, Brugal's consent was also tainted by the illegal detention.
In light of our decision, then, Brugal's consent subsequent to the ille-
gal detention will not justify the search. Accordingly, the judgment is
hereby

AFFIRMED.

HAMILTON, Circuit Judge, dissenting:

Because Trooper Lawson possessed reasonable suspicion that
criminal activity was afoot, he was constitutionally entitled to direct
Brugal to pull his vehicle over to the side of the road to conduct a fur-
ther investigation. Because Brugal's subsequent consent to allow
Trooper Lawson to search the vehicle was voluntary, the evidence
seized during the search should not have been suppressed by the dis-
trict court. Accordingly, I would vacate the district court's grant of
Brugal's motion to suppress and remand for further proceedings.

I

The majority concludes that Brugal's continued detention after his
license and rental agreement were verified was constitutionally
improper. In reaching this conclusion, the majority does not contest,
nor could it, the validity of the initial traffic checkpoint stop. See ante

                     11
at 6-7. Accordingly, we are concerned only with Trooper Lawson's
decision to direct Brugal to pull his vehicle over to the side of the
road.

It is settled that an ordinary traffic stop is a limited seizure and is
more akin to an investigative Terry stop than a custodial arrest. See
United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992). This court
therefore assesses the reasonableness of traffic stops under the princi-
ples set forth in Terry v. Ohio, 392 U.S. 1 (1968). See Rusher, 966
F.2d at 875. Terry asks "whether the officer's action was justified at
its inception, and whether it was reasonably related in scope to the
circumstances which justified the interference in the first place."
Terry, 392 U.S. at 20. "If the initial traffic stop was illegal or the offi-
cers exceeded the stop's proper scope, the seized contraband is
excluded under the `fruit of the poisonous tree doctrine.'" Rusher, 966
F.2d at 875.

Once an officer effectuates a routine traffic stop, the officer "`may
request a driver's license and vehicle registration, run a computer
check, and issue a citation.'" Id. at 876 (quoting United States v.
Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988)). Once the driver pro-
duces a valid license and proof that he is entitled to operate the vehi-
cle, the driver must be permitted to proceed. See id. "Any further
detention for questioning is beyond the scope of the Terry stop and
therefore illegal unless the officer has a reasonable suspicion of a seri-
ous crime." Id. at 876-77. "Whether such an investigative detention
is supported by an objectively reasonable suspicion of illegal activity
does not depend upon any one factor, but on the totality of the cir-
cumstances." United States v. Soto, 988 F.2d 1548, 1555 (10th Cir.
1993). In assessing whether reasonable suspicion is present, we
review the district court's findings of historical fact for clear error and
the determination of reasonable suspicion de novo. See Ornelas v.
United States, 116 S. Ct. 1657, 1663 (1996).

The Supreme Court has recognized that factors consistent with
innocent travel can, when taken together, give rise to reasonable sus-
picion. See United States v. Sokolow, 490 U.S. 1, 9 (1989) ("[A]ny
one of these factors is not by itself proof of any illegal conduct and
is quite consistent with innocent travel. But we think taken together
they amount to reasonable suspicion."). In Sokolow, the defendant

                     12
was stopped at Honolulu International Airport by Drug Enforcement
Administration (DEA) agents, who found a large amount of cocaine
in his carry-on luggage. See id. at 3. The DEA agents had the follow-
ing information before approaching the defendant: (1) he paid $2,100
cash for two airplane tickets from a roll of $20 bills; (2) he traveled
under a name that did not match the name under which his telephone
number was listed; (3) his original destination was Miami, a source
city for illicit drugs; (4) he stayed in Miami for only forty-eight hours,
even though a round-trip flight from Honolulu takes twenty hours; (5)
he appeared nervous during his trip; and (6) he checked none of his
luggage. See id. The Court emphasized the necessity of considering
the totality of the circumstances in order to evaluate the existence of
reasonable suspicion. See id. at 8. The Court attached particular sig-
nificance to the defendant's payment of cash, to the length of his trip,
and to the agents' reasonable belief that he was traveling under an
alias, considering these facts as "out of the ordinary." Id. at 8-9. Thus,
as applied to this case, Sokolow teaches us that it is not enough that
Trooper Lawson could articulate factors underlying his decision to
instruct Brugal to pull his vehicle over to the side of the road if
Trooper Lawson's articulated factors are not probative of behavior in
which few innocent people would engage. The articulated factors
together must serve to eliminate a substantial portion of innocent trav-
elers before the requirement of reasonable suspicion will be satisfied.

Trooper Lawson's decision to instruct Brugal to pull his vehicle
over to the side of the road arose from the following circumstances:
(1) I-95 is a major thoroughfare for narcotics trafficking; (2) Brugal
was the only non-local or non-Charleston resident who got off at Exit
22 immediately after passing two well-lit decoy drug checkpoint signs
in the northbound lane on I-95; (3) Brugal had a New York State driv-
er's license; (4) Brugal rented the vehicle in Miami; (5) a common
practice of drug couriers is to fly to Miami, acquire drugs, rent a vehi-
cle, and drive north; (6) Brugal indicated that he was searching for
gas even though he had a quarter tank of gas; (7) the Shell gas station
referred to by the travel advisory sign cannot be seen from I-95, and
the exit showed no signs of activity at 3:30 a.m.; (8) the defendants
were traveling at 3:30 a.m.; and (9) Brugal and his passengers only
had three small bags which, according to Trooper Lawson, was insuf-
ficient luggage for three persons, two males and one female, traveling
from Miami to Virginia Beach.

                     13
In their totality, the factors articulated by Trooper Lawson elimi-
nate a substantial portion of innocent travelers; therefore, Trooper
Lawson possessed reasonable suspicion to instruct Brugal to pull his
vehicle over to the side of the road to conduct a further investigation.
Trooper Lawson observed Brugal exit I-95 immediately after passing
two decoy drug checkpoint signs that were illuminated. Now, if the
area around the exit following the decoy drug checkpoint signs
showed signs of activity at 3:30 a.m., an indication that hotels, conve-
nience stores, and gas stations were in operation, a limited signifi-
cance could attach to leaving I-95 at such an exit. But, Exit 22
showed no signs of activity at 3:30 a.m. Because Exit 22 showed no
signs of activity at 3:30 a.m., any driver's selection of this exit gets
the reasonable suspicion juices flowing.

At the checkpoint, Brugal produced a New York State driver's
license and a rental agreement indicating that the vehicle was rented
in Miami by Brugal and that Brugal had a New York City address.
While reviewing Brugal's license and rental agreement, Trooper Law-
son asked Brugal where he was headed, and Brugal responded "Vir-
ginia Beach." Trooper Lawson then asked Brugal why he got off at
Exit 22 if his destination was Virginia Beach, and Brugal responded
that he did so in order to find gas. Trooper Lawson then noticed that
Brugal had a quarter of a tank of gas.

At this point, based on his knowledge and experience, Trooper
Lawson, who had been a State Trooper for eighteen years, had rea-
sonable grounds to conclude that Brugal fit the profile of a drug cou-
rier from New York City who flew to Miami, rented a vehicle, and
was attempting to return to New York City. Trooper Lawson testified
that, based on his knowledge and experience, drug couriers fly to
Miami from a northern destination, such as New York, to obtain
drugs, rent a vehicle, and return north with the drugs. Admittedly,
standing alone, there is nothing atypical about an individual from
New York City renting a vehicle in Miami. I am sure many individu-
als from New York City do so. So these two facts, New York City
resident and vehicle rental in Miami, standing alone, do not support
the inference that Brugal was a drug courier who flew from New
York City to Miami. However, these two facts must be considered
with other facts observed by Trooper Lawson. Brugal's vehicle was
stopped in South Carolina while traveling northbound on I-95 from

                    14
Miami at 3:30 a.m. I-95 is a major drug thoroughfare. At the check-
point, Brugal informs Trooper Lawson that he is looking for gas.
Although I-95 contained a traveler's advisory sign for a Shell gas sta-
tion, several facts keep suspicions high. First, as noted above, Exit 22
showed no signs of activity at 3:30 a.m. Second, Brugal's vehicle had
at least a quarter of a tank of gas. Third, Brugal just passed an exit,
Exit 21, with several well-lit twenty-four hour gas stations. In light of
these facts, any reasonable officer would remain suspicious of the
driver's activities. In other words, a reasonable officer could conclude
that few innocent travelers from New York City are traveling north-
bound on I-95 in South Carolina at 3:30 a.m. in a vehicle rented in
Miami fourteen hours earlier,1 exiting the interstate after passing two
decoy drug checkpoint signs, and looking for gas at an exit that shows
no signs of activity, even though they had just passed three well-lit
gas stations and had at least a quarter of a tank of gas. In short, given
the deference that this court is required to give to Trooper Lawson's
experience, see United States v. Lender, 985 F.2d 151, 154 (4th Cir.
1993) (noting that we should "credit[ ] the practical experience of
officers who observe on a daily basis what transpires on the street"),
Trooper Lawson's conclusion that Brugal fit the profile of a drug cou-
rier from New York City who flew to Miami, rented a vehicle, and
was attempting to return to New York City was eminently reasonable.

The reasonable conclusion that Trooper Lawson drew from his
observations creates a rather out of the ordinary travel scenario for
Brugal. Why would an individual from New York City fly to Miami,
rent a vehicle, and drive to Virginia Beach? Obviously, one can con-
ceive of instances where an individual from New York City would
travel to Miami, rent a vehicle, and drive to Virginia Beach. For
example, an individual from New York City could be driving an indi-
vidual from Miami who wished to go to Virginia Beach and did not
like to fly, ride on a train, ride on a bus, or drive alone. However,
common sense tells us that it is significantly more probable that Bru-
gal flew from New York City to Miami, a source city for drugs,
_________________________________________________________________
1 Brugal rented the vehicle at 1:36 p.m. on October 30, 1997. There-
fore, between the time he rented the vehicle and the time he exited Exit
22, approximately fourteen hours had elapsed. The distance between
Miami and Exit 22 is approximately 515 miles.

                     15
acquired drugs, and, instead of flying with the drugs on an airplane,
rented a vehicle in Miami to transport the drugs to New York City.

The majority downplays this common sense interpretation of Bru-
gal's travel itinerary in two ways. The majority first reasons that
"there is no evidence that Brugal was traveling to New York." Ante
at 8. However, as explained above, all the evidence suggests that
Trooper Lawson had reasonable grounds to conclude that Brugal fit
the profile of a drug courier from New York City who flew to Miami,
rented a vehicle, and was attempting to return to New York City with
drugs.

Second, the majority reasons that because Brugal's rental agree-
ment required him to return the vehicle to Miami in a week, as
opposed to dropping it off in New York City, Brugal's activities did
not fit a "general pattern of drug trafficking behavior." Ante at 9. The
flaw in the majority's analysis is revealed by examining two alterna-
tive explanations which place Brugal's activities squarely within a
general pattern of drug trafficking behavior. First, if a one-way rental
fits the drug courier profile (as opposed to simply renting a vehicle),
an individual skilled in the drug trade would want to rent a vehicle
on a round-trip basis to avoid suspicion. Thus, Brugal's plan could
have been to, after the deal was consummated in New York City, drop
the vehicle off at any Alamo car rental in New York City and pay the
attendant penalty. Alternatively, Brugal's plan could have been to fly
to Miami, acquire the drugs on the front, rent a vehicle, and drive to
New York City with the drugs. After consummating a deal in New
York City, Brugal would then drive to Miami instead of boarding a
plane with the large amount of cash generated by a deal involving
eight kilograms of cocaine and one kilogram of heroin. These two
alternative explanations demonstrate Brugal's rental of the vehicle in
Miami itself is relevant to the reasonable suspicion analysis and not
the duration of Brugal's rental. Accordingly, the duration of Brugal's
rental does not compel the conclusion that his activities did not fit a
"general pattern of drug trafficking behavior." Ante at 9.2
_________________________________________________________________
2 If Brugal's rental agreement did in fact accurately reflect the length
of time he intended to rent the vehicle in question, the three small pieces
of luggage that Brugal and his passengers carried with them becomes
more significant in the reasonable suspicion analysis. Obviously, a rea-
sonable officer would find it unusual for three adults to carry only three
small pieces of luggage for a week-long trip from Miami to Virginia
Beach and back to Miami.

                    16
Under Sokolow, an officer's articulated factors in their totality must
serve to eliminate a substantial portion of innocent travelers before
the requirement of reasonable suspicion will be satisfied. In this case,
Trooper Lawson's articulated factors met this burden. Indeed, few, if
any, innocent individuals from New York City, fly to Miami, rent a
vehicle to drive to Virginia Beach, proceed to drive most of the day
and night on I-95, exit the interstate after passing two decoy drug
checkpoint signs, and look for gas at an exit that shows no signs of
activity at 3:30 a.m., when they have just past three well-lit gas sta-
tions and have at least a quarter of a tank of gas.

Finally, I must address the validity of Brugal's consent to the
search. "A defendant who voluntarily consents to a search waives his
Fourth Amendment rights, and the police officer may conduct the
search without probable cause or a warrant." United States v. Perrin,
45 F.3d 869, 875 (4th Cir. 1995); see also Schneckloth v. Bustamonte,
412 U.S. 218, 235 (1973). In assessing the voluntariness of an indi-
vidual's consent, the court should examine the totality of the circum-
stances. See United States v. Mendenhall, 446 U.S. 544, 557 (1980);
Schneckloth, 412 U.S. at 227.

After Brugal pulled his vehicle over to the side of the road, Trooper
Lawson activated the mounted video camera in his vehicle which was
now located directly behind Brugal's vehicle. Brugal then stepped out
of his vehicle, and Trooper Lawson asked Brugal if he had any drugs
in the vehicle. Trooper Lawson also asked Brugal if he could search
the vehicle, and Brugal responded "no problem." Trooper Lawson
repeated his request to search and, again, Brugal responded "no prob-
lem." During his search, Trooper Lawson discovered two pieces of
luggage that contained packages slightly larger than bricks. It was
later discovered these two pieces of luggage contained approximately
eight kilograms of cocaine and one kilogram of heroin.

Nothing in the record suggests that Brugal did not voluntarily con-
sent to the search. No evidence suggests that the police used coercive
tactics to gain Brugal's consent. Under the facts of this case, the
search of Brugal's vehicle was consensual and consistent with the
Fourth Amendment.

                    17
II

In sum, because Trooper Lawson possessed reasonable suspicion
that criminal activity was afoot, he was constitutionally entitled to
direct Brugal to pull his vehicle over to the side of the road. Because
Brugal's subsequent consent to allow Trooper Lawson to search the
vehicle was voluntary, the evidence seized during the search should
not have been suppressed by the district court. Accordingly, I would
vacate the district court's grant of Brugal's motion to suppress and
remand for further proceedings.

                    18
