                              In the

United States Court of Appeals
                For the Seventh Circuit

No. 11-3590

U NITED S TATES OF A MERICA,
                                                 Plaintiff-Appellant,
                                  v.

JESUS U RIBE,
                                                Defendant-Appellee.


             Appeal from the United States District Court
      for the Southern District of Indiana, Terre Haute Division.
      No. 2:10-cr-17-JMS-CMM—Jane E. Magnus-Stinson, Judge.


     A RGUED A PRIL 11, 2012—D ECIDED F EBRUARY 13, 2013




  Before W OOD , W ILLIAMS, and T INDER, Circuit Judges.
  W ILLIAMS, Circuit Judge. Early one morning, Jesus
Uribe was driving along Interstate 70 in Indiana. Ap-
parently, he was not speeding or driving too slowly,
weaving recklessly across lanes, crossing the dividing
line, or giving any indication that he was intoxicated.
Nor is there evidence that Uribe’s vehicle, a blue Nissan
Altima with Utah plates, was in violation of any of Indi-
ana’s numerous vehicle requirements—no malfunc-
tioning brake lights, improperly tinted window, visibly
2                                             No. 11-3590

altered muffler, or expired license plate. Only one aspect
of Uribe’s travel was interesting: the blue Nissan he
was driving had a registration number that traced back
to a white Nissan. Although this color discrepancy
alone is not unlawful either in Indiana, where Uribe
was driving, or in Utah, where the car was registered,
the deputy following Uribe’s car initiated a traffic stop
“to check for registration compliance.” That stop led to
a search of the vehicle, nearly a pound of heroin, and a
federal indictment.
  Uribe filed a motion to suppress the evidence ob-
tained following the stop, contending that the seizure
violated the Fourth Amendment because the deputy
had no reasonable suspicion or probable cause to
detain him. Although the government offered no evi-
dence to support its objection to the motion, it argued
that there was reasonable suspicion that the car was
stolen and that its driver was violating Indiana law
by operating a vehicle displaying a different car’s reg-
istration number. The district court granted Uribe’s
motion, finding the government’s explanations insuf-
ficient to establish that at the time of the stop the
deputy had a reasonable, articulable suspicion that
Uribe was engaged in criminal activity.
  In this interlocutory appeal, we must determine
whether one lawful act in isolation—driving a car of one
color with a registration number attached to a car of a
different color—gives rise to reasonable suspicion that
a driver is engaged in criminal activity. Because on this
record, investigatory stops based on color discrepancies
No. 11-3590                                                    3

alone are insufficient to give rise to reasonable sus-
picion, we affirm.


                     I. BACKGROUND
  Shortly after two o’clock in the morning on July 14,
2010, Deputy Dwight Simmons of the Putnam County
(Indiana) Sheriff’s Department was working traffic en-
forcement and driving behind a blue Nissan Altima
traveling eastbound on Interstate 70. When Deputy
Simmons performed a Bureau of Motor Vehicles reg-
istration inquiry on the car’s Utah license plate number,
he received information for a white 2002 Nissan. In his
narrative arrest report, Deputy Simmons stated that he
initiated an enforcement stop of the vehicle “to check
for registration compliance.” That report did not
include any other description of the vehicle, and it did
not mention the driver’s pre-stop behavior.1



1
    The part of that narrative relevant to the investigatory stop
reads, in its entirety:
    On 7-14-10 while working traffic enforcement on I-70,
    Deputy Simmons of the Putnam County Sheriff’s
    Office[] was traveling eastbound in the vicinity of the
    45 mile marker behind a blue Nissan Altima[] bearing
    Utah license plates. Deputy Simmons performed a
    BMV registration inquiry on the license plate, and
    received a return on a white 2002 Nissan. Deputy
    Simmons initiated an enforcement stop of the vehicle
    in the vicinity of the 48 mile marker, to check for
    registration compliance.
4                                              No. 11-3590

  After Deputy Simmons pulled the car over, he
observed that the driver, Jesus Uribe, appeared nervous.
Eventually, another officer arrived with a canine,
which gave a positive alert. Uribe gave Deputy Simmons
permission to search the vehicle, and the officer with
Deputy Simmons found two packages containing nearly
a pound of heroin. Uribe was indicted for possessing
with intent to distribute 100 grams or more of heroin,
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(i).
  Uribe moved to suppress the heroin, arguing that
Deputy Simmons did not have reasonable suspicion to
perform the traffic stop based on the color of the car
alone. He also argued that no Indiana or Utah law
requires car owners to amend their vehicle registration
information to reflect a change in car color. So, according
to Uribe, there was no reasonable suspicion for the
stop. Uribe did not challenge the execution of the
search or the validity of his consent to it.
  The government did not request an evidentiary
hearing or submit an affidavit to put Deputy Simmons’s
additional observations, suspicions, and experience in
the record. (Uribe attached Deputy Simmons’s post-
arrest narrative to the motion to suppress.) Nonethe-
less, the government responded to Uribe’s arguments
by contending that Deputy Simmons’s twelve years of
experience taught him that stolen cars are often
repainted to evade detection. The government also
argued that because Indiana prohibits operating
a vehicle with a registration number belonging to
any other vehicle, Deputy Simmons could have rea-
No. 11-3590                                             5

sonably suspected that Uribe was committing a reg-
istration violation.
  The district court granted Uribe’s motion to sup-
press, finding that the record did not support Deputy
Simmons’s alleged knowledge that stolen cars are
painted different colors. The court also concluded that
the Indiana traffic code provision the government cited
only applied to vehicles registered to Indiana residents.
The district court denied the government’s motion
for reconsideration and its belated request for an eviden-
tiary hearing, deciding that the government was not
entitled to a second chance after failing to meet its
burden on the motion to suppress. This interlocutory
appeal under 18 U.S.C. §§ 3231 and 3731 followed.


                     II. ANALYSIS
  When reviewing a district court’s decision on a motion
to suppress, we consider questions of law de novo, the
district court’s determinations of reasonable suspicion
and probable cause de novo, and questions of fact for
clear error. Ornelas v. United States, 517 U.S. 690, 699
(1996); United States v. Brown, 232 F.3d 589, 591-92 (7th
Cir. 2000).
  An investigatory stop complies with the Fourth Amend-
ment if the brief detention is based on reasonable
suspicion that the detained individual has committed or
is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21-
22 (1968); United States v. Grogg, 534 F.3d 807, 810 (7th
Cir. 2008). An officer initiating an investigatory stop
6                                               No. 11-3590

must be able to point to “specific and articulable facts”
that suggest criminality so that he is not basing his
actions on a mere hunch. Terry, 392 U.S. at 21; see also
United States v. Dennis, 115 F.3d 524, 532 (7th Cir. 1997)
(“[I]n reviewing a reasonable suspicion determination,
we require law enforcement authorities to articulate the
specific characteristics exhibited by the person or object
to be detained which aroused the authorities’ suspicion
in the particular case before us . . . .”). We evaluate rea-
sonable suspicion based on the totality of the circum-
stances known to the officer at the time the stop is made.
United States v. Hicks, 531 F.3d 555, 558 (7th Cir.
2008). However, “[t]he officer’s subjective motivations
for stopping and detaining a suspect are not relevant to
the reasonableness inquiry.” United States v. Bullock, 632
F.3d 1004, 1012 (7th Cir. 2011). The government bears
the burden of establishing reasonable suspicion by a pre-
ponderance of the evidence. United States v. Longmire,
761 F.2d 411, 418 (7th Cir. 1985).
  Deputy Simmons’s post-arrest narrative seems to
identify only one fact that led him to conduct the investi-
gatory stop: a discrepancy between the observed color
of the car Uribe was driving and the color indicated on
the car’s registration. Both parties acknowledge that
the color discrepancy itself was lawful, because neither
Indiana nor Utah requires a driver to update his vehicle
registration when he changes the color of his car.
  In addition to the color discrepancy, the government
argues that the timing of the stop—just after two o’clock
No. 11-3590                                                 7

in the morning—raises the level of suspicion.2 The gov-
ernment did not present any evidence of Deputy
Simmons’s experience and expertise or of any officer’s
belief that the context of the stop made its timing suspi-
cious.
  From the record, we conclude that the timing of the
stop in this context does not raise suspicion. Uribe’s
vehicle 3 was not, for example, exiting a scene following
gunfire via the only available street, nor was Uribe
acting suspiciously in an area known for criminal activ-
ity. See United States v. Brewer, 561 F.3d 676, 678 (7th Cir.
2009) (finding the timing of a stop suspicious because
it “reinforced the suspicion [that the vehicle was
connected to reported gunfire] since few people are
on the road at 2:30 a.m. and . . . there was no other traf-
fic” leaving the apartment complex immediately after
the gunfire); see also United States v. McHugh, 639 F.3d
1250, 1257-58 (10th Cir. 2011) (finding reasonable
suspicion based on an early-morning detention in an
area known for criminal activity, information from
an armed private security officer and a police dispatcher



2
  We note that the part of Deputy Simmons’s narrative
included in the record only mentions the time of the stop
once, when he states that the canine unit arrived on the scene
at 2:30 a.m.
3
  While we refer to the blue Nissan as “Uribe’s vehicle,” it
was registered to someone else. Because Deputy Simmons
was not aware of that fact at the time of the stop, it is not
relevant to our analysis.
8                                                  No. 11-3590

that the defendants were suspected of having a weapon
in their vehicle, and a report from the security guard
about the defendants’ suspicious behavior prior to the
detention); United States v. Lender, 985 F.2d 151, 154 (4th
Cir. 1993) (finding reasonable suspicion when officers
observed the defendant appearing to engage in a hand-to-
hand drug transaction in a known drug area at
1:00 a.m.). Rather, Uribe was in an out-of-state vehicle
traveling on an interstate highway in Indiana at two
o’clock in the morning—apparently without committing
any traffic infractions. So, while we consider timing a
part of the history of the detention decision, it does
not raise the level of suspicion attached to the color
discrepancy.
   Uribe’s motion to suppress presents an issue of first
impression in this circuit and, apparently, in the federal
courts: whether a discrepancy between the observed
color of a car and the color listed on its registration
alone is sufficient to give rise to reasonable suspicion
of criminal activity. Where our sister circuits have con-
sidered color discrepancies, they have relied on the
discrepancy as only one of several factors estab-
lishing reasonable suspicion.4


4
  In United States v. Cooper, the Sixth Circuit found reasonable
suspicion from a color discrepancy and a vehicle’s presence
in a specific high-crime area known for frequent car thefts,
along with officers’ testimony that, in their experience, color
discrepancy triggered a suspicion of car theft. 431 Fed. App’x
399, 401-02 (6th Cir. 2011). The Ninth Circuit assumed, but did
                                                 (continued...)
No. 11-3590                                                     9

  Although it appears that no federal court has
addressed the exact issue presented in this case, several
state courts have done so. In Andrews v. State, a Georgia
appellate court held that it was reasonable for an officer
to infer from a color discrepancy that a car’s license
plate had been switched in violation of Georgia law. 658
S.E.2d 126, 127-28 (Ga. Ct. App. 2008); see also Aders v.
State, 67 So. 3d 368, 371 (Fla. Dist. Ct. App. 2011) (finding
a color discrepancy sufficient to create a reasonable
suspicion that a driver committed a second-degree mis-
demeanor by improperly transferring a license plate). An
Indiana appellate court found that a color discrepancy
supported reasonable suspicion that a “vehicle had a
mismatched plate, and as such, could be stolen or
retagged.” Smith v. State, 713 N.E.2d 338, 342 (Ind. Ct.
App. 1999).
  State cases have also come out in the other direction.
In Commonwealth v. Mason, a Virginia appellate court



(...continued)
not decide, that a color discrepancy and presence in a high-crime
area was a “thin basis” for reasonable suspicion that a vehicle
was stolen. United States v. Rodgers, 656 F.3d 1023, 1026-27
(9th Cir. 2011). And in United States v. Caro, the Tenth Circuit
found that an officer had reasonable suspicion to continue
a detention initiated by a traffic stop due to a color discrepancy
and the defendant’s failure to recall the registered owner’s
last name. 248 F.3d 1240, 1246 (10th Cir. 2001); see also
United States v. Clarke, 881 F. Supp. 115, 117 (D. Del. 1995)
(reasonable suspicion from color discrepancy, out-of-state
plate, high-crime area, and officer’s knowledge that vehicles
of that specific make and model were often subject to theft).
10                                              No. 11-3590

determined that color discrepancy alone is insufficient
to establish reasonable suspicion because “the benefit
gained from stopping individual vehicles based solely
on a disparity in the color listed on the vehicle’s registra-
tion . . . is marginal when compared to the constitutional
rights of drivers and their passengers who are seized
during such a stop.” No. 1956-09-02, 2010 WL 768721, at
*3 (Va. Ct. App. Mar. 9, 2010) (unpublished decision)
(internal quotations omitted); see also State v. O’Neill,
Nos. 06-S-3456, 06-S-3457, 2007 N.H. Super. LEXIS 2, at *8
(N.H. Super. Ct. Apr. 17, 2007) (unpublished decision)
(because the color discrepancy violated no law, the
officer “could not possibly have suspected the defendant
of any criminal wrongdoing”).


     A. No Reasonable Suspicion of Vehicle Theft
  The government first contends that Deputy Simmons’s
investigatory stop was justified by the reasonable
suspicion that Uribe was driving a stolen vehicle. Ordi-
narily, this is where we would review all the circum-
stances known to the officer that weigh in favor of or
against a finding of reasonable suspicion and consider
the officer’s experience, expertise, and understanding
of the context of the stop to determine whether
the observed conduct was objectively, reasonably, and
articulably suspicious. But the government provided no
evidence to tip the scales from a mere hunch to something
even approaching reasonable and articulable suspicion,
despite attempting to justify a detention based on one
observed incident of completely innocent behavior in
a non-suspicious context. Without testimony or an
No. 11-3590                                              11

affidavit from Deputy Simmons (or anyone else), we
know nothing about the extent of his experience with
car theft, how the police department trains its officers
to detect stolen vehicles, or whether anything about
the context of the stop raises the level of suspicion.
  Perhaps most importantly, the government provided
no information on the correlation between stolen
vehicles and repainted ones. We do not know whether
ninety-nine percent of repainted cars are stolen, which
would suggest a color discrepancy is highly probative
of criminal activity, or whether less than one percent
are, which would suggest a color discrepancy is com-
pletely innocuous. As we weigh Uribe’s Fourth Amend-
ment rights against the benefits of using investiga-
tory stops to catch car thieves and recover stolen
vehicles, these numbers matter. Without them, we cannot
conclude that a color discrepancy alone is probative of
wrongdoing without the risk of subjecting a substantial
number of innocent drivers and passengers to deten-
tion. See Reid v. Georgia, 448 U.S. 438, 441 (1980) (no rea-
sonable suspicion where “circumstances describe a very
large category of presumably innocent travelers, who
would be subject to virtually random seizures were
the Court to conclude that as little foundation as there
was in this case could justify a seizure”).
  Although we focus on an “innocent” color discrepancy,
ultimately “the relevant inquiry is not whether par-
ticular conduct is ‘innocent’ or ‘guilty,’ but the degree
of suspicion that attaches to particular types of
noncriminal acts.” United States v. Sokolow, 490 U.S. 1, 10
12                                               No. 11-3590

(1989) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13
(1983). Our review of the totality of the circumstances
here leads us to conclude that no reasonable suspicion
of vehicle theft attaches to a completely lawful color
discrepancy in the absence of any evidence suggesting
otherwise.5 In light of that conclusion, Deputy Simmons’s
decision to stop Uribe’s vehicle lacked reasonable suspi-
cion that the vehicle was stolen.


    B. No Reasonable Suspicion of Registration Violation
  We turn next to the government’s argument that
Deputy Simmons could have believed that Uribe was in
violation of an Indiana vehicle registration require-
ment.6 As we discuss below, the government has not
shown that the requirement applies to Uribe’s Utah-
registered vehicle. And because the suspected violation
is not unlawful, it cannot form the basis of reasonable
suspicion.
  In Delaware v. Prouse, the Supreme Court held that
a police officer may stop a vehicle when the officer has
“at least articulable and reasonable suspicion that a



5
  Even if we were to consider the timing of the stop as an
additional circumstance, nothing in the record suggests that a
repainted vehicle observed at two o’clock in the morning on
an interstate highway is any more suspicious than one
observed at noon.
6
   The government did not argue that there was a reasonable
suspicion that Uribe was in violation of any Utah registra-
tion provision.
No. 11-3590                                                   13

motorist is unlicensed or that an automobile is not regis-
tered, or that either the vehicle or an occupant is other-
wise subject to seizure for violation of law.” 440 U.S. 648,
663 (1979). However, a registration compliance check
without any suspicion of criminal activity violates the
Fourth Amendment. Id. (in the absence of articulable
and reasonable suspicion, “stopping an automobile and
detaining the driver in order to check his driver’s license
and the registration of the automobile are unreasonable
under the Fourth Amendment.”). Even when reasonable
suspicion exists, the Supreme Court is wary of the
compliance-check rationale because “[m]any violations
of minimum vehicle-safety requirements are observable,”
and license plates are “themselves evidence that the
vehicle is properly registered.” Id. at 660; see also id. at 660-
61 (finding that randomly stopping registered vehicles
for “document checks” is not “necessary in order
to ascertain compliance with the State’s registration
requirements”).
  The government suggests that Deputy Simmons could
have believed that Uribe was violating Indiana Code
Section 9-18-2-27(a), which provides that “a vehicle re-
quired to be registered under this chapter may not be used
or operated upon the highways if the motor vehicle
displays . . . [a] registration number belonging to any
other vehicle . . . .” The government asserts that when
combined with other provisions of Article 18, Chapter 2,
which governs motor vehicle registration, this require-
ment extends to vehicles driven by nonresidents on
Indiana highways, including Uribe’s. Specifically, the
government points to Section 9-18-2-29, which provides
14                                             No. 11-3590

that “motor vehicle[s]” are within the class of “[v]ehicles
subject to registration,” and Section 9-18-2-2, which
allows nonresidents to operate vehicles in Indiana
“if the vehicle is properly registered in the jurisdiction
in which the nonresident is a resident.” From these
two provisions, the government concludes that nonresi-
dents are subject to Indiana’s registration-swapping
prohibition.
  The government’s analysis is noticeably incomplete
because the first part of the very provision it invokes
limits the prohibition to vehicles “required to be reg-
istered under [Article 18, Chapter 2].” Ind. Code § 9-18-2-
27. This raises a completely different issue from whether a
nonresident can drive a vehicle registered in another
state in Indiana, which is what Section 9-18-2-2 addresses.
  Chapter 2 requires the registration of motor vehicles
that “(1) are subject to the motor vehicle excise tax
under [Section] 6-6-5; and (2) will be operated in Indi-
ana,” id. § 9-18-2-1(a), in addition to other vehicles not
relevant here, such as commercial and recreational
vehicles and those belonging to Indiana residents.
When we assemble the pieces of the statutory puzzle
relevant to Uribe, Section 9-18-2-27 prohibits registra-
tion swapping for motor vehicles, § 9-18-2-1(a), that are
subject to Indiana’s excise tax, § 9-18-2-1(a)(1), and
are operated in Indiana, § 9-18-2-1(a)(2). Similarly, the
nonresident provision the government cites only applies
in these same situations, when “a nonresident . . . owns
a vehicle required to be registered under this article.”
Id. § 9-18-2-2.
No. 11-3590                                             15

  The problem with the government’s argument is that
there is no evidence that a vehicle registered in Utah
is subject to Indiana’s motor vehicle excise tax simply
because its driver travels on one of Indiana’s many high-
ways. (In fact, the excise tax chapter provides for
refunds when “(1) the owner registers the vehicle for use
in another state; and (2) the owner pays tax for use of
the vehicle to another state for the same time
period which the tax was paid under this chapter.” Ind.
Code § 6-6-5-7.4(a).)
  The government simply has not shown that Section 9-18-
2-27 applies in this situation. And since the registra-
tion provision asserted by the government does not
apply to the Utah-registered vehicle Uribe was driving,
a suspected violation of it could not be the criminal
activity at the heart of the objective reasonable suspicion
analysis. See United States v. McDonald, 453 F.3d 958,
961 (7th Cir. 2006) (“An officer cannot have a reasonable
belief that a violation of the law occurred when the acts
to which an officer points as supporting probable cause
are not prohibited by law.”). So, the government has
failed to show that Deputy Simmons had reasonable
suspicion to stop Uribe’s vehicle to investigate its com-
pliance with this registration provision.


                   III. CONCLUSION
  For the foregoing reasons, we A FFIRM the district
court’s decision granting Uribe’s motion to suppress.

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