United States v. Jenson

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-50683
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TOMMIE DARNELL JENSON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m 04-CR-190-ALL
_________________________
Before SMITH and STEWART, Circuit Judges,
and CRANE,* District Judge.
JERRY E. SMITH, Circuit Judge:
Tommie Jenson appeals the denial of his
motion to suppress evidence as a violation of
his Fourth Amendment rights under Terry v.
Ohio, 392 U.S. 1 (1968). We reverse and re-
mand for entry of a judgment of acquittal.
I.
Slightly before 11:00 p.m. on June 4, 2004,
DPS Trooper Eric Gray noticed a van travel-
ing east on I-20 at 77 mph where the speed
limit was 65 mph. He decided to stop it for
speeding, but after putting on his emergency
lights Gray stated that it took between thirty
seconds and a minute for the van to come to a * District Judge of the Southern District of
Texas, sitting by designation.
United States Court of Appeals
Fifth Circuit
F I L E D
August 23, 2006
Charles R. Fulbruge III
Clerk

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complete stop.1 The officer was driving with
a civilian passenger and mentioned to her the
suspicion that the passengers in the van may
have been trying to conceal something or cor-
roborate stories.
When Gray approached the van, he noticed
Jenson, who was the driver, and a woman in
the passenger seat and a man in the back seat,
both of whom were asleep. Gray informed
Jenson he had been stopped for speeding and
asked him to step to the rear of the van. Jen-
son complied and proceeded to answer Gray’s
questions concerning Jenson’s employment
and the purpose of his trip. Jenson told Gray
that he worked in construction with his uncle
Cotton and that they were traveling to Bry-
an-College Station to pick up his uncle’s wife.
Jenson and his passengers provided Gray
with drivers’ licenses, and Gray ran the licens-
es to determine whether they were valid and
whether there were any outstanding warrants.
At 11:02 Gray received word from dispatch
that the licenses were clear.
It is uncertain when Gray gave Jenson the
written warning, though it probably occurred
before Gray asked Jenson’s permission to
search his vehicle. Gray stated he was “prob-
ably close to finishing” the warning at the time
he heard from dispatch. He could not recall
when he returned the license, though he noted
it was his usual practice to return it at the same
time he issued the warning.
Though Jenson was calm and cooperative
at the time of the initial stop, he became ex-
cessivelytalkative, answering questions that he
was not asked, which Gray surmised to mean
he was nervous. Jenson continued to exhibit
this behavior even after being issued the
warning, which Gray found odd because in his
experience, a driver normally becomes less
agitated when he realizes he is not receiving a
citation.
At 11:04 (two minutes after Jenson’s li-
cense cleared), Gray again asked Jenson where
he worked, and he replied “Tommie and Cot-
ton,” or “Tommie-Cotton,” presumably refer-
ring to his construction business with his un-
cle. Gray then asked Cotton where he
worked, and he replied that he was self-em-
ployed and that his business did not have a
name. Gray found the discrepancy between
the two answers suspicious.2
Gray then asked for Jenson’s permission to
search the van, which was granted. There is
no indication that Gray, before requesting per-
mission, told Jenson he was free to leave.
Gray then told Jenson that he would need to
conduct a pat-down search before he could
search the vehicle. Gray later testified that it
was standard procedure to frisk occupants of
a car before proceeding with a search, to en-
sure the officer’s safety while he was other-
wise occupied.
Jenson suddenly became upset and com-
plained of harassment. He started emptying
his pockets, at which point Gray unholstered
his weapon and told Jenson to put his hands 1 The videotape introduced by the government
starts in the middle of the traffic stop, but it reveals
that Jenson took at least thirty seconds to move to
the side of the road and come to a complete stop.
For the duration, Jenson was driving in the
rightmost lane with his signal on and very little
traffic on the road.
2 Although the government’s brief implies that
this exchange occurred before Gray checked the
licenses, counsel for the government conceded at
oral argument that it occurred afterward.

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3
behind his back.
Gray conducted the frisk and found a pock-
etknife and a small “two-shooter” gun on Jen-
son’s person. Gray put Jenson in his patrol car
and ran a criminal background check, which
revealed that Jenson was a convicted felon.
Jenson was brought to jail, where another
officer found a bag of marihuana in his sock.
Jenson filed, and the court denied, a motion
to suppress evidence for violation of the
Fourth Amendment. He was convicted of one
count of being a felon in possession of a fire-
arm and one count of being an unlawful user
of a controlled substance in possession of a
firearm.
II.
When reviewing the denial of a motion to
suppress, we review findings of fact for clear
error and conclusions of law de novo. Ornelas
v. United States, 517 U.S. 690, 699 (1996).
We construe all facts in the light most favor-
able to the government as the prevailing party.
See United States v. Santiago, 310 F.3d 336,
340 (5th Cir. 2002). We analyze the validity
of traffic stops under Terry, 392 U.S. at 21,
which held that “limited searches and seizures
are not unreasonable when there is a reason-
able and articulable suspicion that a person has
committed a crime.” Santiago, 310 F.3d at
340. We employ a two-part test to determine
whether there was “reasonable suspicion”:
“whether the officer’s action was justified at its
inception, and . . . whether the officer’s
subsequent actions were reasonably related in
scope to the circumstances that justified the
stop.” United States v. Brigham, 382 F.3d
500, 506 (5th Cir. 2004) (en banc) (citing
Terry, 392 U.S. at 19-20).
Jenson concedes that his speeding justified
the traffic stop at its inception. Therefore, the
sole issue on appeal is whether the officer’s
subsequent actions, including his request to
search the vehicle and his pat-down search of
Jenson’s person, were reasonably related to
the circumstances justifying the stop.
Several of Gray’s actions are plainly per-
missible under our caselaw. An officer may
ask for a driver’s license and registration of the
occupants and may run a computer check on
both. See id. at 509. He also may ask the
occupants about their intended destination.
See id. at 510.
“[W]e reject any notion that a police offi-
cer’s questioning, even on a subject unrelated
to the purpose of the stop, is itself a Fourth
Amendment violation . . . . [D]etention, not
questioning, is the evil at which Terry’s second
prong is aimed.” United States v. Shabazz,
993 F.2d 431, 436 (5th Cir. 1993). We must
also be careful, when conducting a Terry
analysis, to allow “officers to draw on their
own experience and specialized training to
make inferences from and deductions about
the cumulative information available to them
that might well elude an untrained person.”
Brigham, 382 F.3d at 507 (quoting United
States v. Arvizu, 534 U.S. 266, 273 (2002))
(internal quotations omitted).
Detention, however, may last no longer
than required to effect the purpose of the stop.
See United States v. Lopez-Moreno, 420 F.3d
420, 430 (5th Cir. 2005) (quoting Brigham,
382 F.3d at 507). If all computer checks come
back clean, then as a general matter reasonable
suspicion disappears, and there is no legitimate
reason for extending the stop. See id. at 431.
“A recognized exception to this rule is that if
additional reasonable suspicion arises in the
course of the stop and before the initial pur-

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4
pose of the stop has been fulfilled, then the
detention may continue until the new reason-
able suspicion has been dispelled or con-
firmed.” Id. The government offers three rea-
sons why there was reasonable suspicion to
extend Jenson’s traffic stop beyond 11:02 (the
time the licenses cleared): (1) It took an un-
usually long time for Jenson’s van to pull over,
(2) Jenson’s excessive talkativeness indicated
nervousness, and (3) Jenson and Cotton
appeared to give inconsistent answers.
We decline to consider Jenson’s and Cot-
ton’s contradictory answers, because the al-
leged inconsistency did not arise until 11:04
and therefore not “before the initial purpose of
the stop [had] been fulfilled.” Lopez-Moreno,
420 F.3d at 431. Even if we did consider the
conflicting statements, it would be unreason-
able to become suspicious based on the state-
ments made.
When asked about his employment, Jenson
replied that he worked for his uncle in con-
struction and that the name of the business was
“Tommie-Cotton” or “Tommie and Cotton,”
presumably combining his and his uncle’s
names. Cotton, in turn, answered that he was
“self-employed,” which is not by itself in-
consistent with having a nephew as an em-
ployee.3 He also stated that his business did
not have a name, but Jenson may have merely
given a descriptive title for the two-man oper-
ation, instead of a formal name, when pressed.
Gray easily could have dispelled his suspicions
by asking a follow-up question such as “Do
you work with your nephew?,” but there is no
evidence that he did so.4
Therefore, the specific issue of first impres-
sion is whether taking an unusual amount of
time to pull over, coupled with nervous behav-
ior by the driver, amounts to reasonable suspi-
cion to justify prolonged detention. We have
previously found detentions unreasonable,
based on the totality of the circumstances,
where the driver exhibited signs of nervous-
ness.5 It may be that Jenson’s signs of ner-
vousness were more probative when coupled
with the delay in pulling over. We accord
great respect to Gray’s testimony, as a trained
law enforcement officer, that it was unusual
for the van not to brake when the police car
activated its emergency lights and that it took
an above-average time for Jenson to pull over.
This modest delay in stopping time does not
by itself, however, give rise to reasonable
suspicion. It may take drivers different
amounts of time, especially at night, to identify
the lights of the car behind them as coming
from a police car and not from another
emergency services vehicle. It may also take
some time for the driver to recognize that the
officer intends for him to stop and safely turn
onto the shoulder, as opposed to, for example,
taking the next exit so as to be out of the dan-
ger of traffic.
3 “Self-employed” is defined as “earning income
directly from one’s own business, trade, or
profession rather than as a specified salary or wag-
es from an employer.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 2060 (1986).
4 See Florida v. Royer, 460 U.S. 491, 500
(1983) (explaining that an officer should use “the
least intrusive means reasonably available to verify
or dispel the officer’s suspicion in a short period of
time”).
5 See Santiago, 310 F.3d at 338 (in which the
driver exhibited “extreme nervousness,” including
shaking hands); Dortch, 199 F.3d at 199-200 (in
which the driver appeared nervous and “gazed
around as if he was looking for a place to run”)
(internal quotations omitted).

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5
We do not mean to say that excessive delay
in stopping may never give rise to reasonable
suspicion; there may be cases, for example, in
which further context, such as erratic driving,
acceleration, or passenger movement inside
the vehicle further suggest criminal behavior.
Here, however, thirty seconds to a minute was
a reasonable amount of time for Jenson to re-
spond to the flashing of the emergency lights.
Also, the facts of this case are relatively
weak by comparison to the facts in our rele-
vant precedents. For example, in Jones there
was no reasonable suspicion to search the ve-
hicle even though one of the occupants had a
previous arrest on a crack cocaine charge. See
234 F.3d at 242.6 Likewise, in Santiago we
found a search unreasonable even though the
defendant lied to the officer about the identity
of a passenger. See 310 F.3d at 338-39.
More importantly, the government does not
present adequate evidence of a nexus between
Jenson’s allegedly suspicious behavior and any
specific criminal activity. Gray said that while
pulling over the vehicle, he thought the
passengers might be trying to conceal some-
thing or get their explanations straight before
stopping. He testified that the three suspicious
factors he identified were evidence that “some-
thing may be going on in the van that was
illegal that they possibly didn’t want me to
see.” When Jenson became visibly agitated
after Gray told him he was about to conduct a
pat-down search, Gray testified that he
thought he had “identified a criminal act.” At
11:18, after Gray had searched the vehicle, he
told his civilian passenger that when you feel
something is illegal, you know it. These gen-
eral statements do not amount to an “articul-
able suspicion that a person has committed or
is about to commit a crime,” as opposed to a
mere hunch. Royer, 460 U.S. at 498 (empha-
sis added).
In contrast, we have found a search reason-
able where the officer specifically suspected
drug trafficking because the defendant was
traveling on a known drug corridor (also I-20),
had been arrested for trafficking in the past,
did not have a driver’s license, and was 500
miles away from the road leading to his alleged
destination. See United States v. Reyes
Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003).
In Santiago, we found a search unreasonable
even though the officer testified that he
thought the car might contain narcotics, be-
cause the fact that the licenses cleared should
have dispelled any suspicion of drug traffick-
ing. See Santiago, 310 F.3d at 339, 342; ac-
cord Dortch, 199 F.3d at 199 (no reasonable
or articulable suspicion of drug trafficking).
Likewise, the officer here has not articu-
lated any particular connection between the al-
legedly suspicious behavior and drug or weap-
ons possession, beyond the fact that the driv-
er’s hesitation in pulling over may have been
the product of intent to conceal. In short, the
government has not shown reasonable sus-
picion to prolong Jenson’s traffic stop.7
6 See also Dortch, 199 F.3d at 196, 199 (find-
ing that defendant’s criminal record did not give
rise to reasonable suspicion).
7 Nor does it affect our analysis that only four
minutes elapsed between the ID clearance and
Jenson’s consent to the search. The government
argues that the officer’s actions were a natural pro-
gression and a reasonable extension of the initial
stop. In Dortch, however, we found a Terry
violation even though it took “five minutes or less”
between the ID clearance and the arrival of a K-9
unit to search defendant’s car. Dortch, 199 F.3d at
(continued...)

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III.
The government contends that, even if the
officer unreasonably extended the traffic stop
beyond the point at which the van’s occupants’
ID’s were cleared, Jenson’s consent to search
cured any Fourth Amendment problem. “Con-
sent to search may, but does not necessarily,
dissipate the taint of a fourth amendment
violation.” United States v. Chavez-Villarreal,
3 F.3d 124, 127 (5th Cir. 1993).8 To
determine whether consent was validly given,
we ask (1) whether consent was voluntary and
(2) whether it was an independent act of free
will. See Santiago, 310 F.3d at 342 (citing
Chavez-Villarreal, 3 F.3d at 127).
We use a multi-factor test to determine
whether consent was voluntary, in which we
consider
(1) the voluntariness of the defendant’s
custodial status; (2) the presence of coer-
cive police procedures; (3) the extent and
level of the defendant’s cooperation with
the police; (4) the defendant’s awareness of
his right to refuse consent; (5) the defen-
dant’s education and intelligence; and
(6) the defendant’s belief that no incrimi-
nating evidence will be found.
Jones, 234 F.3d at 242 (citing Shabazz, 993
F.2d at 438). The government bears the bur-
den of proving that consent was voluntary.
See id. We review a finding of voluntariness
for clear error. See Shabazz, 993 F.2d at 438.
The district court found that consent was
voluntary because Gray did not request con-
sent until after the stop was completed and the
warning issued, and Jenson was at all times
cooperative and seemed to understand and be
able to communicate with the trooper. The
court noted, however, that Jenson would have
been aware of the incriminating evidence on
his person, though none was found in the ve-
hicle.9 Because the question is close, we con-
clude the court did not commit clear error.
Even assuming, however, that the court
correctly concluded that consent was volun-
tary, it committed error by not applying the
second prong of the test: whether consent was
an independent act of free will.10 The purpose
7(...continued)
203 (Garwood, J., dissenting). It is not the dura-
tion of time, but the quantity of evidence, that de-
termines whether reasonable suspicion survives the
officer’s background check. In this case, there was
insufficient reason for suspicion to continue once
Jenson’s ID cleared; a constitutional violation
occurred the moment the detention continued past
that point.
8 See also Brigham, 382 F.3d at 508 (stating
that “a consensual interrogation may follow the end
of a valid traffic stop”).
9 Also, as previously noted, the government did
not present evidence that Jenson’s license had been
returned to him before consent was requested and
did not prove that Jenson had been informed he was
free to go. Given the burden of proof, we draw an
adverse inference against the government on these
facts. See Santiago, 310 F.3d at 343 n.4.
10 See Jones, 234 F.3d at 243 (opining that even
assuming that consent was voluntary, “it is clear
that the government failed to prove that the consent
was an independent act of free will and that the
district court erred by not considering the second
prong of the consent inquiry, which is required
when a constitutional violation has preceded the
consent”); Dortch, 199 F.3d at 202 (“[E]ven if
[defendant’s] consent was voluntarily given, and
the district court’s determination therefore was not
clearly erroneous, the consent was not valid.
(continued...)

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of this inquiry is to determine whether there
was a “break in the causal chain” between the
constitutional violation and the consent; that is
to say, consent cannot be the product of the il-
legal detention. See Santiago, 310 F.3d
at 343.
To determine whether consent was inde-
pendent, we consider “1) the temporal prox-
imity of the illegal conduct and the consent;
2) the presence of intervening circumstances;
and 3) the purpose and flagrancy of the initial
misconduct.” Jones, 234 F.3d at 243.
Though the initial officer misconduct was not
flagrant, the first two factors cut decidedly
against the government.
The consent followed closely on the heels
of the illegal detention, and there is no evi-
dence that (a) Jenson knew he was free to
leave or (b) that his license had been returned
to him, both of which might be viewed as in-
tervening circumstances.11 In Jones we found
the causal chain had not been broken where
the officers “appeared to knowingly prolong
the detention” by purposely failing to return
one of the passenger’s ID’s. Id. We give the
same legal effect today to the failure of the
government to meet its burden of proving that
Jenson’s consent was independently given.
We note also that the evidence was ulti-
mately discovered on Jenson’s person, pursu-
ant to a pat-down search, not in the vehicle
that Jenson gave Gray permission to inspect.
It is without question that Jenson did not con-
sent to the pat-down search, but limited
pat-down searches are permissible “for the
protection of the police officer, where he has
reason to believe that he is dealing with an
armed and dangerous individual, regardless of
whether he has probable cause to arrest the
individual for a crime.” Terry, 392 U.S.
at 27.12
There is no Terry violation “if the searching
officer can point to specific and articulable
facts suggesting actual physical risk to himself
or others.” Sink, 586 F.2d at 1048. When
Gray informed Jenson he would conduct a pat-
down search, Jenson became upset, com-
plained of harassment, and began emptying his
pockets. Although we do not question Gray’s
decision to conduct a frisk in response to such
nervous behavior, the suspicious conduct
occurred only after reasonable suspicion to
continue the detention had been dispelled and
Gray had obtained involuntary consent to
search the vehicle.
Under the fruit of the poisonous tree doc-
trine, “all evidence derived from the . . . illegal
search . . . must be suppressed, unless the gov-
ernment shows that there was a break in the
chain of events sufficient to refute the infer-
ence that the evidence was a product of the
constitutional violation.” Dortch, 199 F.3d at
200-01. The police would not have discov-
ered either Jenson’s gun or marihuana but for
the search of his person, and the police would
not have searched his person had they not il-
10(...continued)
Instead, because the causal chain between the
illegal detention and Dortch’s consent to a third
body search was not broken, the search was
nonconsensual.”).
11 But see Dortch, 199 F.3d at 196, 198 (de-
ciding that statement that defendant was free to
leave was ineffectual where police detained vehicle
and license, and defendant driver “could not
reasonably be expected to wander off down the
highway in an unfamiliar area”).
12 See also United States v. Sink, 586 F.2d
1041, 1047-48 (5th Cir. 1978).

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legally extended the stop beyond the time
when reasonable suspicion expired. Therefore,
the evidence is fruit of the poisonous tree and
must be suppressed.13
IV.
The government cites Brigham to support
its argument, but on close inspection it does
not apply to these facts. There we found that
the police had reasonable suspicion to search
defendant’s vehicle where the defendant driver
(1) was not the lessee of the vehicle, (2) the
lessee of the vehicle was not in the car, and
(3) the driver’s and passenger’s versions of
their itinerary differed. Brigham, 382 F.3d at
508. It was critical to the holding in Brigham
that one of the car’s occupants had provided
the police with a fictitious ID and therefore,
had not been cleared by the officers’ comput-
erized search when consent was given. See id.
at 510. We noted that cases such as Dortch
and Jones “are about timing and sequence:
After the computer checks came up ‘clean,’
there remained no reasonable suspicion of
wrongdoing by the vehicle’s occupants.” Id.
at 510.
In Brigham, because the police obtained
consent to search defendant’s vehicle while the
background check was pending, the detention
continued to be justified by the facts that gave
rise to its inception, so no Fourth Amendment
violation occurred. See id. at 509 (quoting
Shabazz, 993 F.2d at 437). A fortiori, because
there was no Terry violation, there was no
need to inquire whether consent was
constitutionally tainted. See id. at 512. Here,
however, the request to search occurred after
defendant’s license cleared, and as instructed
by Dortch, Jones, and Santiago, there was no
reasonable suspicion to justify prolonging the
search, nor was the consent given
independently of the illegal detention.14
The conviction is REVERSED, and this
matter is REMANDED for entry of a judg-
ment of acquittal.
13 Jenson’s initial motion to suppress was inart-
ful: He listed only the weapon, not the marihuana,
as the evidence he sought to exclude from trial.
The fruit of the poisonous tree doctrine, however,
requires us to suppress all evidence acquired as the
result of an illegal search, and the government does
not argue that Jenson has waived his right to
request suppression of the drugs.
14 Some language in Brigham suggests that it
does not matter in what sequence the police ask for
consent to search the vehicle and conduct the
background ID search. See Brigham, 382 F.3d at
511 (“There is . . . no constitutional stopwatch on
traffic stops.”); id. (stating that ID searches “need
not be pursued to the exclusion of, or in particular
sequence with, other efficient means.”). As quoted
above, however, we put particular emphasis on the
fact that defendants’ ID’s had not yet cleared, and
we explicitly stated that the government had not
asked the en banc court to reconsider Dortch,
Jones, or Santiago. See id. at 510 n.10. The best
understanding of Brigham is to treat as decisive the
fact that, in that case, one passenger presented the
police with a fake license, which (a) heightened
suspicion about the passenger’s activities and
(b) necessarily extended the time required to iden-
tify and clear the vehicle’s occupants.

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