Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-3-1995

Karnes v Skrutski & Kowalski
Precedential or Non-Precedential:

Docket 94-1633




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           UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                    ___________

                    No. 94-1633
                    ___________


                   GEORGE KARNES,
                             Appellant

                          v.

   THOMAS SKRUTSKI, in his individual capacity;
   EDWARD KOWALSKI, in his individual capacity

  _______________________________________________

  On Appeal from the United States District Court
     for the Eastern District of Pennsylvania
        (D.C. Civil Action No. 91-cv-04269)
                ___________________


                Argued March 7, 1995

Before:   BECKER, SCIRICA, and WOOD*, Circuit Judges

               (Filed   August 3, 1995)

                         GARY S. GILDIN, ESQUIRE (ARGUED)
                         150 South College Street
                         Carlisle, Pennsylvania 17013

                         STEFAN PRESSER, ESQUIRE
                         American Civil Liberties Union
                         125 South Ninth Street, Suite 701
                         Philadelphia, Pennsylvania 19107

                           Attorneys for Appellant

                         JOSEPH S. RENGERT, ESQUIRE (ARGUED)
                         JOANNA N. REYNOLDS, ESQUIRE
                         Pennsylvania State Police
                         1800 Elmerton Avenue
                         Harrisburg, Pennsylvania 17110

                           Attorneys for Appellees



                          1
*The Honorable Harlington Wood, Jr., United States Circuit Judge
for the Seventh Judicial Circuit, sitting by designation.




                               2
                          __________________

                      OPINION OF THE COURT
                       __________________


SCIRICA, Circuit Judge.


          This dispute arises out of an automobile search after

the driver was stopped for speeding.       This appeal, framed in the

context of qualified immunity, addresses what characteristics can

constitute reasonable suspicion sufficient to justify an

investigatory stop and a detention based on that stop.       Plaintiff

George Karnes filed suit under 42 U.S.C. § 1983 (1988), alleging

Pennsylvania State Troopers Thomas Skrutski and Edward Kowalski

violated his rights under the Fourth and Fourteenth Amendments to

the United States Constitution.0       Karnes appeals the district

court's grant of qualified immunity in favor of defendants and

its denial of his motion for judgment as a matter of law.

          Karnes alleged three violations of the Fourth

Amendment: (1) an investigatory stop made without reasonable

suspicion; (2) an unconstitutionally lengthy detention; and (3) a

search conducted without probable cause.       At trial, after the

close of the evidence, the district court denied plaintiff's

motion for judgment as a matter of law.       In ruling on defendants'

motion for judgment as a matter of law, the district court

granted qualified immunity to Skrutski and Kowalski as to the

existence of reasonable suspicion and the length of detention,

0
 The Fourth Amendment, as incorporated into the Fourteenth
Amendment, applies to the conduct of state officials. Mapp v.
Ohio, 

, 655 (1961).


                                   3
but denied it on whether probable cause existed for the police to

search Karnes's car.   The jury addressed this question through a

special interrogatory, which it answered in defendants' favor,

and the district court then granted qualified immunity to the

police regarding probable cause for the search.      Karnes appeals.

We will reverse in part and affirm in part.

                                 I.

                                 A.

          On October 26, 1990, George Karnes was driving his car

west on Interstate 78 toward Duncannon, Pennsylvania.      At about

5:00 p.m., defendant Skrutski, a Pennsylvania State Police

Trooper, stopped Karnes for violating the speed limit.     It is

undisputed Karnes was speeding and that Skrutski stopped Karnes

only because he was speeding.    At the time of the stop Skrutski

had no reason to suspect Karnes of any illegal activity.

          After stopping Karnes, Skrutski requested that a Canine

Drug Enforcement Unit be sent to assist him.      Karnes contends

Skrutski requested the canine unit at 5:00 p.m., immediately

after stopping him, while Skrutski claims he requested the unit

at 5:15 p.m. after observing many factors which made him suspect

Karnes was transporting drugs.   While waiting for the dog to

arrive, Skrutski asked to search Karnes's camera bag, film

canister, and a manila envelope.      Karnes consented to these

searches which revealed no contraband.      Karnes refused to consent

to further searches of his luggage and car.

          Defendant Edward Kowalski arrived with a dog trained in

narcotics detection at approximately 5:30 p.m.      Between then and


                                 4
7:00 p.m., the officers repeatedly requested Karnes's consent to

search the car, but Karnes refused.   Ultimately, the police used

the dog to sniff the exterior of Karnes's car, and it jumped

through the open driver's side window twice.   The two troopers

then searched the interior and trunk of Karnes's car.     Their

search uncovered nothing illegal, and they released Karnes at

approximately 7:30 p.m., after issuing a citation for speeding.

          Karnes contends that defendants lacked reasonable

suspicion required by the Fourth Amendment to convert the routine

traffic stop into a detention for investigation of drugs, and

that even if reasonable suspicion were present, his detention for

nearly two and one-half hours exceeded the scope of a seizure

based on less than probable cause.    Karnes also claims the search

of his car was unlawful as the police lacked probable cause.

          Defendants maintain the use of the dog did not violate

the Fourth Amendment because they had reasonable suspicion to

detain Karnes beyond the scope of an ordinary traffic stop in

order to investigate whether he was transporting drugs.     The

length of detention, they assert, was due to Karnes's

argumentative questioning of their procedures.   Further,

defendants assert the dog signalled the possible presence of

drugs by jumping in the open window of Karnes's car, thus

providing probable cause for them to conduct a full search.

          Defendants contend Skrutski observed indicators of

possible drug activity that provided reasonable suspicion to call

for the dog: (1) Karnes's car was a blue mid-sized Honda Accord;

(2) the car had high mileage for its age (145,000 miles over a


                               5
three-year period); (3) the car had a two-way citizens band

radio; (4) the car had a radar detector; (5) the car had an

antenna on the trunk, possibly for a car phone; (6) the car had

Florida license plates and registration; (7) Karnes had maps in

his car, one of which was open to New York City, specifically the

Bronx, allegedly a center for the illegal drug trade; (8) Karnes

was travelling on an interstate highway to the Harrisburg area,

also allegedly a regional center for drug trafficking; (9) Karnes

gave Skrutski permission to search a camera bag and manila

envelope but refused to consent to further searching; (10)

Skrutski noticed brown and green "vegetable matter," which he

suspected was marijuana, ranging in size from dust to an inch in

diameter on the rear floor of plaintiff's vehicle (in fact the

"vegetable matter" was ordinary tree leaves); (11) Skrutski

observed that Karnes was nervous and evaded questions; and (12)

Skrutski thought that Karnes's limited baggage was inconsistent

with his assertion he had been travelling a long time and that

his casual attire belied his assertion he was returning from a

business engagement earlier that day.   Defendants further state

that after Kowalski arrived with the dog they observed other

factors: (1) Karnes requested to drive off of the highway to a

rest stop to use the rest room; (2) they saw fast-food wrappers

in the car; (3) Karnes demonstrated knowledge of drug

interdiction programs.

          Karnes denies the presence of many of these factors,

and argues defendants asked for and received explanations for the

remainder.   Karnes denies the car had a car phone antenna, that


                                6
the maps he had were open to the Bronx, and that he was nervous.

Karnes explained to the police that he bought the car used with

high mileage on it and that he drove a great deal for his work

installing computer systems.   He explained his company was

headquartered in Florida and gave the troopers a business card

for them to verify the information.     Karnes told them the

"vegetable matter" was leaves from a recent camping trip and that

his casual attire was what he normally wore on his job.        Karnes

admits he asked to go to the nearest exit to use a rest room to

urinate but also states that he ultimately requested simply to be

allowed to use the nearby woods.     He contends the troopers

refused his request unless he would consent to a search of his

car.

                                B.

          Karnes states that the defendants were purportedly

using indicators established by the Pennsylvania State Police

Department's Operation Whiteline, a program designed to train

officers in evaluating conduct which otherwise might be

considered innocent, but which in fact is an effort to disguise

drug trafficking.   Karnes contends that many of the factors

Skrutski purported to rely upon were personally developed

indicators which are not found in official Operation Whiteline

lists, and that many of the factors the defendants developed

contradict the Whiteline factors.     In any case, Karnes argues the

innocence of each factor.

          We have previously noted that the use of indicators or

drug courier profiles has been sharply challenged, especially


                                7
when the profiles "include constitutionally-relevant factors,

such as membership in certain racial groups, or neutral factors

arguably unrelated to drug trafficking, such as wearing

disheveled clothing or looking 'different.'"     United States v.

Coggins, 

, 655 n.1 (3d Cir. 1993).    Neither in

Coggins nor elsewhere have we specifically analyzed the impact

drug courier profiles or indicators may have on courts' Fourth

Amendment analysis.

          Whether courts should give weight to the fact that a

person searched met the characteristics of a drug courier profile

is not a question we need to decide in this case.0    Defendants
0
 The Supreme Court recently responded to a defendant's claim that
use of a profile served to undermine the government's reliance on
the facts it presented to prove reasonable suspicion by noting
that "the fact that these factors may be set forth in a 'profile'
does not somehow detract from their evidentiary significance as
seen by a trained agent." United States v. Sokolow, 

,
10 (1989) (emphasis added). The Court gave no indication that
the profile would enhance the significance of these facts, and
thus Sokolow suggests that "the drug courier profile has little
meaning independent of the objective facts" presented by the law
enforcement officer as sufficient to demonstrate reasonable
suspicion. United States v. O'Neal, 

, 242 n.5 (8th
Cir.), cert. denied, 

(1994). In other words,
while the factors the law enforcement officer uses to demonstrate
that the profile is met can support a finding of reasonable
suspicion, the profile as such does not provide any additional
support for such a finding.

          The drug courier profile here, which defendants have
not demonstrated to be empirically valid, thus serves as no more
than an investigative tool for law enforcement officers. See
United States v. Berry, 

, 600 & n.21 (5th Cir. Unit B
1982) (en banc) (rejecting use of profiles without examination of
the totality of circumstances, but recognizing the utility of the
profile as a guide to help law enforcement officers determine
which individuals merit closer attention). The profile cannot,
without more, serve as a method by which innocent factors can be
lifted by their own bootstraps somehow to become suspicious. Cf.
United States v. Lopez, 

, 1086, 1101 (E.D.N.Y.


                                8
relied on numerous factors which are not part of the Operation

Whiteline profile, and they do not allege the stop of Karnes was

justified by the profile alone.       Indeed, the defendants stated:


          Indicators on which an officer may rely may
          be contained in the Operation Whiteline
          booklet, and may be developed by the troopers
          themselves based upon local information and
          things observed in their experience. It is
          not possible to list all of the indicators in
          a single source document because they are
          dynamic and continuously changing as drug
          traffickers change their procedures.

Appellees' Br. at 7 (citations omitted).      The defendants'

reliance on the Operation Whiteline profile was thus so

attenuated as to make the profile in this case irrelevant to our

determination of reasonable suspicion.      Our analysis will look

instead at the objective facts which defendants claim constitute

reasonable suspicion.   See United States v. Cortez, 

,
417-18 (1981) (holding that reasonable suspicion requires a

"particularized and objective basis for suspecting the particular

person stopped of criminal activity").
                               II.



1971) (accepting the validity of an anti-hijacker profile
compiled through rigorous and careful scientific analysis, but
rejecting its use when one criterion was eliminated and two added
without proof that the alterations were similarly valid). We
think it appropriate to expect that the government prove that "an
identifiable profile exist[s], that it consist[s] of specific
elements which accurately identif[y] criminals, and that the
[plaintiff] conformed to it," before expecting acceptance of the
profile as an element in the totality of the circumstances test.
See Morgan Cloud, Search and Seizure by the Numbers: The Drug
Courier Profile and Judicial Review of Investigative Formulas, 65
B.U. L. Rev. 843, 853-54 (1985).


                                  9
           Our review of the district court's grant of a motion

for judgment as a matter of law is plenary, and we apply the same

test for granting or denying it as did the district court.

Lightning Lube, Inc. v. Witco Corp., 

, 1166 (3d Cir.

1993).   In a motion for judgment as a matter of law, we review

the facts from the perspective most favorable to the nonmovant.

of reasonableness under the Fourth

Amendment is a question of law that we review de novo.   United

States v. Coggins, 

, 654 (3d Cir. 1993); United

States v. Walker, 

, 815 (10th Cir. 1991), cert.

denied, 

(1992).   The district court had

jurisdiction under 28 U.S.C. § 1343 (1988).   We have appellate

jurisdiction under 28 U.S.C. § 1291 (1988).

                                III.

          Karnes's prima facie case under § 1983 requires that he

prove he suffered a violation of rights created by federal law,

Oklahoma City v. Tuttle, 

, 816 (1985), at the hands

of a person acting under color of state or territorial law, Gomez

v. Toledo, 

, 640 (1980).   The defendants raised the

affirmative defense of qualified immunity, 

defendants if reasonable officers could have believed their

conduct was lawful "in light of clearly established law and the

information the searching officers possessed," Anderson v.

Creighton, 

, 641 (1987).   This qualified immunity

inquiry is an objective, fact-specific pursuit.   Id.; see also

Malley v. Briggs, 

, 341 (1986).   Defendants bear the

burden of establishing the affirmative defense of qualified


                                10
immunity.   Ryan v. Burlington County, N.J., 

, 1204

n.9 (3d Cir. 1988), cert. denied, 

020 (1989).

            The district court granted in part defendants' motion

for judgment as a matter of law at the close of the evidence, and

we must therefore consider whether the evidence, presented in a

light most favorable to Karnes together with all reasonable

inferences on his behalf, could support a reasonable jury's

verdict in his favor.    Lightning Lube, Inc. v. Witco Corp., 

, 1166 (3d Cir. 1993).    While the qualified immunity

defense is frequently determined by courts as a matter of law, a

jury should decide disputed factual issues relevant to that

determination.   Deary v. Three Un-Named Police Officers, 

, 190-92 (3d Cir. 1984); Abdul-Akbar v. Watson, 

,

201 (3d Cir. 1993); White v. Walker, 

, 976 (5th Cir.

1991); see also Oliveira v. Mayer, 

, 649 (2d Cir.

1994) (holding that while qualified immunity should normally be

decided by the court, where facts concerning the availability of

the defense are disputed "jury consideration is normally

required"), cert. denied, 

(1995).

            The district court applied the qualified immunity

inquiry separately to each of the three steps of the search.      The

court first addressed whether the defendants had reasonable

suspicion to turn the routine traffic stop into an investigative

stop, then whether the length of the detention was reasonable for

an investigative stop, and finally whether the results of the

investigative stop provided them with probable cause to conduct a

search of the car.


                                  11
          The initial stop passes constitutional muster because

Karnes was speeding.   United States v. Kikumura, 

,

1092 (3d Cir. 1990).   But it is clear that Karnes has presented

sufficient evidence to present a prima facie case that his Fourth

Amendment rights were violated by the subsequent investigative

stop, see Berkemer v. McCarty, 

, 439 (1984),

detention, see United States v. Place, 

, 709 (1983),

and search, see United States v. McGlory, 

, 343 (3d

Cir.), cert. denied, 

(1992).      Accordingly,

defendants can only prevail as a matter of law if they are

shielded by qualified immunity.

                                  A.

          Karnes claims the police did not have reasonable

suspicion to conduct an investigative stop after pulling him over

for violating the speed limit.     He correctly observes that the

police needed a separate justification to detain him beyond the

time necessary to issue a citation for speeding, 

, and he contends that such justification was lacking.

          In order to analyze defendants' claim of qualified

immunity on whether there was reasonable suspicion, we must

determine whether the law was clearly established at the time of

the alleged violation, and we must also decide whether, given the

law at that time, a reasonable officer could have believed the

conduct to have been reasonable.       See Dixon v. Richer, 

1456 (10th Cir. 1991).0   The first part of this test is purely a

question of law, but the latter part of the test requires
0
 Karnes presents a preliminary argument that qualified immunity
cannot apply in this instance because it would create a logical
inconsistency. He argues:

          If the plaintiff proved defendants did not
          act as would a reasonable officer under the
          circumstances, it would be impossible for
          defendants to be immune on the ground that
          the same reasonable officer would believe the
          defendants' actions were constitutional.
          Where the law is clearly established and
          proof of the elements of the plaintiff's
          prima facie case would defeat the immunity,
          no qualified immunity defense is available.

Appellant's Br. at 36. This argument has superficial appeal but
in fact misconstrues the nature of qualified immunity, and in any
case has been rejected by the Supreme Court.

          In Anderson v. Creighton, 

, 643 (1987), the
plaintiffs argued that "it is inappropriate to give officials
alleged to have violated the Fourth Amendment--and thus
necessarily to have unreasonably searched or seized--the
protection of a qualified immunity intended only to protect
reasonable official action. It is not possible, that is, to say
that one 'reasonably' acted unreasonably." The Court rejected
this argument. The Court's response was that qualified immunity
seeks to measure whether the officer was reasonable in his
understanding (albeit mistaken) of what was lawful under the
Fourth Amendment. 

There is no conflict in saying
a police officer who acted unreasonably nevertheless reasonably
(but mistakenly) believed his conduct was reasonable.

          Karnes cites Lippay v. Christos, 

(3d Cir.
1993), and Deary v. Three Un-Named Police Officers, 

(3d Cir. 1984), to support this argument. Deary, however, was
decided before Anderson, and therefore is supplanted by the
Supreme Court's subsequent determination of the question. Lippay
is not apposite because it was a case where to prevail plaintiff
had to demonstrate the officer submitted an affidavit containing
statements he knew to be false or about which he was reckless as
to their falsity. 

. Lippay provides an
example of cases where proof of the Fourth Amendment violation
necessarily proves a lack of reasonableness as to the existence
of that violation, a situation very different from the one facing
Karnes here.


                                 13
application of the law to the particular conduct at issue, an

inquiry which may require factual determinations if the nature of

the conduct is disputed.   Pritchett v. Alford, 

, 312

(4th Cir. 1992).

                                 1.

          Defendants are entitled to qualified immunity as a

matter of law if the applicable law was not clearly established

at the time of the alleged constitutional violation.    

.   The level of abstraction at which the

plaintiff's rights are articulated is of considerable importance.

  The Supreme Court has stated,


          The contours of the right must be
          sufficiently clear that a reasonable official
          would understand that what he is doing
          violates that right. This is not to say that
          an official action is protected by qualified
          immunity unless the very action in question
          has previously been held unlawful; but it is
          to say that in the light of pre-existing law
          the unlawfulness must be apparent.

(citation omitted).     Obviously, the law was
established in 1990 that searches or seizures in violation of the

Fourth Amendment would violate Karnes's rights, but there was no

case directly on point with circumstances identical to those

facing Skrutski and Kowalski.    The right Karnes seeks to

vindicate is the right to be free from investigative stops unless

reasonable suspicion is present.

          All parties agree, and we concur, that until defendants

actually searched Karnes's car the stop was in the nature of a

"Terry" stop for purposes of the Fourth Amendment.    In Terry v.


                                 14
Ohio, 

, 21 (1968), the Supreme Court held that certain

investigative stops by police officers were permissible without

probable cause, as long as "in justifying the particular

intrusion [into Fourth Amendment rights] the police officer [is]

able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably

warrant that intrusion."   See also 

("[T]he usual traffic stop is more analogous to a so-called

'Terry stop' than to a formal arrest."   (Citation omitted)).0

         The Supreme Court had refined the Terry standard prior

to 1990, holding the types of articulable facts that can provide

reasonable suspicion cannot include "circumstances [which]

describe a very large category of presumably innocent travelers,

who would be subject to virtually random seizures" were the

circumstances accepted as reasons for the investigation.     Reid v.

Georgia, 

, 441 (1980) (per curiam).   By contrast, in

United States v. Sokolow, 

, 9 (1989), the Court, after

considering the factors presented, stated that "[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."




0
 We note that in Dunaway v. New York, 

, 212 (1979),
the Court observed that a Terry stop must be limited in duration,
and that a more lengthy detention "must be based on consent or
probable cause." (quoting United States v. Brignoni-Ponce, 

, 881-82 (1975)). The stop here was not really the
typical traffic stop, which is usually very brief. We treat the
length of detention issue below in part III.B.


                                15
             Reid and Sokolow are in apparent tension with each

other with respect to the ability to use circumstances or factors

that appear innocent to find reasonable suspicion.         The tension

disappears, however, when the facts of the two cases are

compared.0    In Reid, the defendant was observed moving through an

airport concourse within several yards of another man who was

carrying a shoulder bag identical to 

.   The defendant occasionally looked backward in the direction

of the second man.     

agent approached the defendant,

who was at that point standing outside with the other man.         The

agent requested their airline ticket stubs and identification,

which they supplied.     The tickets indicated they had stayed in

Fort Lauderdale for just one day.       The two men consented to a

search, which uncovered cocaine.        

actions of

the two men, the Court concluded, were not enough to present

reasonable suspicion that they were engaged in criminal activity.

             In Sokolow, the defendant was stopped at Honolulu

Airport by DEA agents, who found a large amount of cocaine in his

carry-on 

.     In contrast to Reid, the DEA
agents had the following information before approaching the

defendant:


             (1) he paid $2,100 for two airplane tickets
             from a roll of $20 bills; (2) he traveled
             under a name that did not match the name

0
 The inquiry into the existence of reasonable suspicion is fact-
specific. See Terry v. Ohio, 

, 15 (1968) (observing
the protean quality of police encounters with individuals).


                                   16
            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 48 hours, even though a
            round-trip flight from Honolulu to Miami
            takes 20 hours; (5) he appeared nervous
            during his trip; and (6) he checked none of
            his 

.    In Sokolow, the Court observed the necessity of
considering "the totality of the circumstances" in order to

evaluate the existence of reasonable suspicion.    

  The

Court apparently attached particular significance to defendant's

payment in cash, to the length of his trip, and to the agents'

reasonable belief that he was traveling under an alias.    

   The Court focused on factors which it perceived as "out of

the ordinary."    

  Reid and Sokolow, taken together,

demonstrate it is not enough that law enforcement officials can

articulate reasons why they stopped someone if those reasons are

not probative of behavior in which few innocent people would

engage--the factors together must serve to eliminate a

substantial portion of innocent travelers before the requirement

of reasonable suspicion will be satisfied.    This is a totality of

the circumstances test.    United States v. Tapia, 

,

1370 (11th Cir. 1990).

            Reid and Sokolow were decided before the events in this

case.    Together, they provide sufficient guidance to reasonable

officers to make clear that detaining Karnes would only be

permissible under the Fourth Amendment if they had reasonable

suspicion and to show the requirements of the reasonable




                                  17
suspicion standard.     We hold the law was clearly established for

purposes of qualified immunity.

                                  2.

             Since the law was clear at the time of the alleged

violation, defendants can be granted qualified immunity only if

their conduct in detaining Karnes, even if in violation of the

Fourth Amendment, was a violation a reasonable officer could have

committed.     We must determine the propriety of the district

court's grant of judgment as a matter of law "in part by

analyzing the evidence adduced by plaintiff as to the conduct of

the defendants."     Brown v. Grabowski, 

, 1111 (3d

Cir. 1990), cert. denied, 

(1991).     We are seeking

to determine whether a sufficient dispute about a material fact

exists "to require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law."     

477 U.S. at 251-52).

             The standard for granting or denying a motion for

judgment as a matter of law does not change in the qualified

immunity context.     Cf. 

(observing the

summary judgment inquiry does not change in the qualified

immunity context).     Karnes will prevail on this issue if "a

reasonable jury could find that the unlawfulness of their actions

was so 'apparent' that no reasonable [police officers] could have

believed [their] actions were lawful."     Lee v. Mihalich, 

, 69 (3d Cir. 1988).0

0
 The issue in Lee arose in the context of a motion for summary
judgment rather than a motion for judgment as a matter of law. We


                                  18
            The district court held there were sufficient

undisputed facts known by the defendants to provide them with

reasonable suspicion to detain Karnes: (1) Karnes drove a blue,

mid-sized Honda; (2) the car had high mileage for its age; (3)

the car had a citizens band radio and radar detector; (4) the car

was licensed and registered in Florida; (5) Karnes had a Florida

license with a Florida address; (6) Karnes was driving on an

interstate highway; (7) the car contained numerous maps,

including one open to the Bronx; (8) Karnes consented to the

search of certain items but then refused further consent; (9)

Karnes requested to go to the rest room; (10) Karnes showed

knowledge of drug interdiction programs; (11) the car contained

fast-food wrappers; (12) the car contained brown and green

"vegetable matter" of various sizes.    Tr. of Civil Jury Trial at

5-156 to 5-157 (May 17, 1994).   The district court further

observed:


            The Plaintiff's mood changed. The Plaintiff
            was extremely nervous. That Plaintiff's car
            had a car phone antenna. Defendant Skrutski
            testified that Plaintiff's luggage and attire
            were inconsistent with Plaintiff's statements
            [concerning] the length and purpose of his
            trip. Defendant Skrutski also testified to
            difficulty in obtaining the results of the
            license and registration check. Plaintiff
            himself stated that his license tags had been
            previously transferred to his car and that on
            a previous occasion an officer had difficulty
            obtaining details.

have made clear, however, that "the standard for granting summary
judgment mirrors the standard for a directed verdict." Rotondo v.
Keene Corp., 

, 442 (3d Cir. 1992) (quotations
omitted).


                                 19


          Karnes contends the district court erred in finding

reasonable suspicion present and in holding that all of these

factors were indisputably present.    We agree.   We cannot agree

with the district court's finding that all the factors it listed

were undisputed.   Viewing the facts in the light most favorable

to plaintiff, a reasonable jury could believe that only certain

factors were present, and that Karnes's mood did not change, he

was not nervous, he had proper luggage and attire, there was no

car phone antenna, and the maps were not open to the Bronx.     We

find the factors here insufficient as a matter of law to provide

reasonable suspicion for defendants to have detained Karnes

beyond the point needed to issue the speeding citation, and that

there was no objectively reasonable basis for defendants to have

believed they did have reasonable suspicion.

          Aside from the "vegetable matter," the factors listed

by the court did not provide any basis for the police to

distinguish Karnes from the vast majority of innocent drivers on

our interstate highways.   We are cognizant that under the

totality test it is possible that "objective facts, meaningless

to the untrained," can provide the basis for reasonable

suspicion.   United States v. Cortez, 

, 419 (1981).

But the Fourth Amendment does not allow random searches of

persons travelling the nation's highways.    The factors the

district court listed, like those to which the police testified,

are simply too ordinary--too much like the factors in Reid and
not enough like those in Sokolow.    As we noted above, reasonable


                                20
suspicion cannot include "circumstances [which] describe a very

large category of presumably innocent travelers, who would [then]

be subject to virtually random seizures."     

.

            The test for reasonable suspicion is a totality of the

circumstances inquiry.    Although we do not analyze each factor in

isolation, we will describe these factors separately in order to

explain why they were insufficient in the aggregate.

            Karnes was the Northeast Field Engineer for Financial

Securities Information Systems, and his principal responsibility

was the installation of computer systems throughout the Eastern

seaboard.    Karnes bought his car used with 80,000 miles on it, a

fact he had explained to defendants.    In any case, high mileage

on a car is not by itself suspicious, nor is the presence of maps

in a car.    Clearly many people innocent of any wrongdoing will

have cars with high mileage on them, and maps (whether or not

open to the Bronx) are also used by huge numbers of innocent

people.

            Defendants argue "that mid to full size cars and cars

which are average looking or common and which easily blend in

with traffic are frequently used to transport drugs."     Appellee's

Br. at 4.    This argument seeks to turn the central notion of

reasonable suspicion on its head.     Reasonable suspicion cannot be

based on a factor that makes the person searched look more like

an ordinary, innocent person; there must be reliance on factors

that provide reason to suspect criminal behavior.    Were we to

accept this argument, we would be granting permission to conduct




                                 21
investigatory stops of people deemed "suspiciously normal."      The

Fourth Amendment forbids granting such permission.

          Karnes's car contained a citizens band radio and a

radar detector.   The presence of these communications devices

alone does not support reasonable suspicion.    See United States

v. Hernandez-Alvarado, 

, 1419 (9th Cir. 1989).      Drug

couriers may use these items, but they are devices used primarily

by people innocent of any illegal activity and alone create no

suspicion of criminal activity.

          The district court found it significant that the car's

license and registration were from Florida because Florida is a

"known drug center."    Other courts have held that out-of-state

plates are consistent with innocent behavior and not probative of

reasonable suspicion.    See, e.g., United States v. Ramos, 

, 1163 (8th Cir. 1994), cert. denied, 

(1995);

.    Florida is not the only "known drug

center," and the mere fact that Karnes was from Florida cannot be

a factor supporting reasonable suspicion.0   Presumably the vast

bulk of people with cars registered in Florida are not drug

smugglers, and they have a right to travel to Pennsylvania.0

0
  The Court of Appeals for the Sixth Circuit observed that drug
enforcement agents might label almost any city in the country as
a major narcotics distribution center. United States v. Andrews,

, 566-67 (6th Cir.), cert. denied, 

(1979).
0
  We do not suggest that geography is an irrelevant factor for
this totality of the circumstances test. Certainly in United
States v. Sokolow, 

, 3 (1989), it was relevant that the
defendant was travelling to and from Miami since Miami was "a
source city for illicit drugs." But the entire state of Florida
cannot properly be termed a source of illicit drugs, and the mere


                                  22
             The fact that Karnes granted consent to Skrutski to

search some items and then refused to give consent to additional

searches cannot support a finding of reasonable suspicion.

Karnes's right to refuse to consent falls within the Fourth

Amendment's core protection against unreasonable searches and

seizures.     Karnes's exercise of that right cannot be penalized by

adding his refusal to consent as a factor in this inquiry, even

if, as defendants testified, Karnes became argumentative and

difficult.

             We have no reason to doubt defendants' assertion that

drug couriers on occasion will request to go to the rest room,

hoping thereby to gain an advantage or to dispose of illegal

drugs.0   But both parties agree Karnes requested to go to the

rest room only after the police decided to use the drug dog to

inspect his car.     We need not decide whether a request to go to

the rest room could provide reasonable suspicion in other

circumstances because it could not have here: Karnes's request

came after the point when the police were required to have

fact that Karnes' car was registered and licensed in Florida is
an extremely weak factor, at best.
0
  Kowalski explained:

             And to me the training I've had is, drug
             couriers, when they're stopped by the police,
             sometimes they have back up people following
             them. And what we were taught is, not to let
             them go off the interchange. Because what
             the general rule is, among the couriers, is
             to go off the next interchange . . . [or]
             rest area. That's where the -- person that
             is escorting you will meet you. So, it's for
             the safety of the police officer . . . .

App. at 536-37.

                                  23
reasonable suspicion.   Most innocent people who have traveled for

any length of time will, of course, make a similar request out of

physiological necessity.   We intimate no view as to whether such

a request would be suspicious in some contexts, but it is not

suspicious here.

          The penultimate factors relied upon by the troopers

were Karnes's knowledge of drug interdiction programs and the

presence of fast-food wrappers in his car.     The latter have

become ubiquitous in modern interstate travel and do not serve to

separate the suspicious from the innocent traveler.      Nor do we

understand how mere knowledge of interdiction programs can be

suspicious.   Indeed, Karnes's display of such knowledge seems

counterintuitive--if Karnes was trying to hide the presence of

drugs he would scarcely announce his knowledge of drug

trafficking and interdiction procedures.      Karnes announced to the

police that he had gleaned his knowledge of the procedures from

having watched a television program.      In any case, too much of

the knowledge he displayed is in the public domain (and is well-

publicized by popular television programs) for it to provide a

basis for suspicion.

          The last factor is the presence of green and brown

"vegetable matter" on the floor of Karnes's car.      Defendants

claim these leaves appeared to be marijuana, thus creating

reasonable suspicion that Karnes was transporting drugs.      Karnes

claims these were leaves from a recent camping trip, and that

"[t]here wasn't just a little bit of leaves, there were leaves

everywhere in there."   App. at 189-90.    Karnes also testified


                                24
that "[a]t one point Kowalski mentioned the leaves.      And he said

that he knew that they weren't marijuana, but that he was going

to use them as probable cause to search my car."   

    We

review the evidence upon which the district court relied in the

light most favorable to the plaintiff.   In that posture it is

clear the jury could reasonably find the police did not really

believe the leaves were marijuana and that they had no reasonable

basis for so believing.   Thus, the leaves do not support the

existence of reasonable suspicion, at least for our review of the

district court's grant of defendants' motion for judgment as a

matter of law on qualified immunity.

           All of these factors, both individually and

collectively, were insufficient to provide reasonable suspicion

that Karnes was not an innocent traveler.   It is possible for

factors, although insufficient individually, to add up to

reasonable suspicion--that is the nature of a totality of the

circumstances test.   But we think it impossible for a combination

of wholly innocent factors to combine into a suspicious

conglomeration unless there are concrete reasons for such an

interpretation.   We hold that defendants have not demonstrated

the existence of sufficient undisputed facts for us to hold that

they had reasonable suspicion to detain Karnes beyond the scope

of the traffic stop or that a reasonable officer could have been

reasonable but mistaken in the belief that reasonable suspicion

existed.   In sum, the defendants cannot receive qualified

immunity on a motion for judgment as a matter of law.     A

reasonable jury could resolve the disputed issues of fact in


                                25
plaintiff's favor, in which case defendants would lack an

objectively reasonable basis for believing reasonable suspicion

was present to detain Karnes.

                                 B.

          The district court also held defendants were entitled

to qualified immunity on the defendants' motion for judgment as a

matter of law regarding the length of detention.   The Supreme

Court made clear in 

, that "in

determining whether the seizure and search were 'unreasonable'

our inquiry is a dual one--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."   Having decided the officers' actions here were

not justified at their inception, we can abbreviate our analysis

of the scope of the detention.

          The district court held a reasonable officer would have

believed the detention in this case was not excessive and that

defendants were therefore entitled to qualified immunity

regarding the scope of the Fourth Amendment intrusion prior to

the search of Karnes's car.   The court stated defendants followed

a reasonable procedure to dispel their suspicion by employing the

drug sniffing dog and that any additional delay was attributable

to Karnes because he asked the troopers questions, argued with

them, challenged their procedures, and insisted on explanations

as to their actions.

          We find the delay of nearly two and one-half hours

sufficiently extreme when viewed in the light most favorable to


                                 26
plaintiff that no reasonable officer would have believed the

detention comported with constitutional requirements, and thus we

hold that defendants are not entitled to qualified immunity on

this issue as a matter of law.   The Supreme Court has held that

"the brevity of the invasion of the individual's Fourth Amendment

interests is an important factor in determining whether the

seizure is so minimally intrusive as to be justifiable on

reasonable suspicion."   United States v. Place, 

, 709

(1983).   In Place, the Court held a ninety-minute delay before

federal agents used a narcotics detection dog on Place's luggage,

was sufficient "alone [to preclude] the conclusion

that the seizure was reasonable in the absence of probable

cause," 

          In contrast, we held in United States v. Frost, 

, 741-42 (3d Cir.), cert. denied, 

(1993),

that an eighty-minute delay was acceptable.0   We distinguished

Place on the grounds that the agents lacked diligence in pursuing

the investigation while the police in Frost were delayed by the

absence of a drug sniffing dog in the vicinity of the stop.     

in the light most favorable to Karnes, the delay here

was approximately 150 minutes in length from the time Karnes was

stopped until he was released, and was the result primarily of

the defendants' dilatory pursuit of their investigation, not


0
 In combination, United States v. Place, 

, 709 (1983)
and United States v. Frost, 

, 741-42 (3d Cir. 1993),
provide sufficient clarity in the law for us to hold that the law
was clear for purposes of the first prong of the qualified
immunity analysis.


                                 27
plaintiff's questioning.    This length of time is excessive under

the Fourth Amendment given the circumstances of this case.

            It appears from the record (viewed in the light most

favorable to Karnes) that defendants used much of the period

between the arrival and use of the dog to attempt to cajole

Karnes into granting them consent.     The fact that defendants did

not accept Karnes's refusal to consent, in combination with their

attempt to use his refusal as a factor in creating reasonable

suspicion (see supra part I), shows a misunderstanding about the

purposes of the Fourth Amendment.     Karnes does not bear the

burden of justifying his refusal to allow police to invade his

privacy; it is rather the government official who must meet the

constitutional requirements before he can encroach upon an

individual's privacy.    The district court's grant of qualified

immunity to defendants on the length of detention issue was

improper.

                                 C.

            Karnes also claims the search of the car was invalid

because the police lacked probable cause.    The district court

sent the case to the jury on the single factual issue of whether

the narcotics dog had "alerted" to the smell of narcotics in

Karnes's car.    Because the jury found it had, the district court

granted qualified immunity to the defendants on the probable

cause issue and entered a verdict in favor of the defendants.      We

note that "[t]he automobile exception to the warrant requirement

allows warrantless searches of any part of a vehicle that may

conceal evidence . . . where there is probable cause to believe


                                 28
that the vehicle contains evidence of a crime."     United States v.

McGlory, 

, 343 (3d Cir. 1992) (quotations omitted).

             Karnes contends the special interrogatory was improper

because whether the drug dog "alerted" was not the only disputed

question of fact on the existence of probable cause.     We

disagree.     Notwithstanding the antecedent violations of the

Fourth Amendment defendants may have committed, it is clear that

the drug dog's alert would present probable cause for a search.

See United States v. Massac, 

, 176 (3d Cir. 1989)

("[P]robable cause to arrest did not exist until the trained dog

reacted affirmatively to the blue luggage . . . .").

                                  IV.

             Our decision that defendants are not qualifiedly immune

as a matter of law on the reasonable suspicion and length of

detention issues makes it necessary to consider whether

plaintiff's motion for judgment as a matter of law should be

granted.     On this point we must consider the evidence in the

light most favorable to the defendants.0    Karnes is entitled to

judgment as a matter of law if, on the record before us, and

taking the evidence in the light most favorable to the

defendants, a reasonable jury could only find both that the

defendants violated the Fourth Amendment and that they acted

unreasonably in doing so.     The district court, of course, denied

plaintiff's motion for judgment as a matter of law.

                                   A.


0
    The relevant facts are described above in parts I and III.A.2.


                                  29
            We must determine whether a reasonable jury could

decide that a police officer could have formed an objectively

reasonable belief that the "vegetable matter" was marijuana.

Absent the "vegetable matter," we would conclude that Skrutski

and Kowalski lacked reasonable suspicion to detain Karnes.

            The defendants do not need to demonstrate that the

material was marijuana in order to receive a grant of qualified

immunity.   Butz v. Economou, 

, 507 (1978) (observing

qualified immunity protects officials who make "mere mistakes in

judgment, whether the mistake is one of fact or one of law"). But

they need to show their mistake was reasonable.    Pray v. City of

Sandusky, 

, 1158 (6th Cir. 1995); see also Abdul-

Akbar v. Watson, 

, 205 (3d Cir. 1993) (observing the

Supreme Court has stated qualified immunity "provides ample

protection to all but the plainly incompetent or those who

knowingly violate the law") (citing Malley v. Briggs, 

, 341 (1986)).

            As we have noted, in deciding whether a reasonable

police officer could have believed there was marijuana in plain

view in Karnes's car, we view the evidence in the light most

favorable to the defendants.    At trial, Skrutski testified as

follows:


            Q [on examination by Karnes's attorney]:
            Let's talk a little bit about this green and
            brown vegetable matter. This was on various
            spots -- over the floor of the car, isn't
            that right?

            A [Skrutski]: That's correct.


                                 30
          Q: And it was quite obvious as you looked in
          the window you could see it, isn't that true?

          A: It was -- it was there. It was visible. I
          don't know how obvious it was, sir.

          Q: Would you please take a look at page 21 of
          your deposition Mr. Skrutski -- line 6.
          Question, "Well, are you saying you saw a
          couple of leaves or did you see it all over
          the interior of the car?" Answer, "It was in
          various spots on the vehicle floor."
          Question, "Quite obvious?" Answer, "Yes, it
          was."

App. at 382-83.
          Q [on examination by Skrutski and Kowalski's
          attorney]: And there was some discussion in
          your testimony [earlier] about a green/brown
          vegetable matter. Could you describe that?

          A [Skrutski]: It was -- a green/brown
          vegetable matter that was -- pulverized.
          There were very small pieces of it.

          Q: Based upon your training and experience,
          did you have any belief [at the time you were
          searching the bags Karnes consented to having
          you search] as to what it may have been?

          A: I suspected that it may have been
          marijuana.

App. at 407.

          Karnes's testimony presents a different picture of the

appearance of this "vegetable matter":


          Q [on examination by Karnes's attorney]:
          Okay. Let's talk about these leaves for a
          second. Because there is some mention in the
          police report of a green brown vegetable
          matter in your car. What was that exactly?

          A [Karnes]: . . . There wasn't just a little
          bit of leaves, there were leaves everywhere
          in there. We've driven around all weekend



                               31
          after doing this with the windows down in a
          state park. And there were -- the only place
          in my car where there wasn't some of these
          leaves, was where I had been sitting in the
          seat. They were up in the back dash. They
          were all over the back seat. They were in
          the floor. They were in -- they were in the
          driver side floor. Just my seat is the only
          place there was no leaves.

          . . . .

          Q: Okay. And how large were these -- were
          these just all crumbled up residue of the
          leaves?

          A: They were all sizes from that big around
          (witness indicates) down to little tiny, tiny
          pieces.

App. at 189-90.

          We believe this contradictory testimony creates a

genuine issue of material fact, and we cannot say that a

reasonable jury could never believe Skrutski's description and

credit only Karnes's.   The presence of drugs in plain view in an

automobile creates probable cause to search, United States v.

Burnett, 

, 67 (6th Cir. 1986), and can support

reasonable suspicion to conduct a further investigation.    While

the troopers were mistaken about the presence of marijuana, on

the basis of this record we cannot say their mistake was

unreasonable as a matter of law.

          A jury will have to weigh the defendants' contention

that they believed the "vegetable matter" was marijuana against

Karnes's assertion that not only could no one have thought that

the leaves were marijuana but also that Kowalski expressly stated

he knew the leaves were not marijuana.   

part III.A.2. A



                                32
jury could find that the defendants formed a reasonable belief

that the leaves were marijuana, and such a finding would lead to

a determination that the defendants were entitled to qualified

immunity on the reasonable suspicion issue.0   See 

(observing that "many times the jury becomes the final

arbiter of [defendants'] claim of immunity, since the legal

question of immunity is completely dependent upon which view of

the facts is accepted by the jury").0

                               B.

          Although it is not clear from Karnes's brief and notice

of appeal whether he has appealed the district court's denial of

his motion for judgment as a matter of law on the length of

detention issue, we need not decide whether the issue is properly

before us because we would affirm the district court on this


0
  Judge Becker dissents on this one issue. Noting that it is
uncontradicted that the material in the car was in fact autumn
leaves, he does not believe that a jury could find that the
defendants formed a reasonable belief that the leaves were
marijuana. Judge Becker would therefore grant the plaintiff's
motion for judgment as a matter of law and remand only for trial
on damages.
0
  We are reminded that the qualified immunity defense is designed
in part to avoid chilling appropriate police behavior. As the
Court of Appeals for the Fourth Circuit noted in Gooden v. Howard
County, Md., 

, 967 (4th Cir. 1992) (en banc):

          If every mistaken seizure were to subject
          police officers to personal liability under
          §1983, those same officers would come to
          realize that the safe and cautious course was
          always to take no action. The purposes of
          immunity are not served by a police force
          intent on escaping liability to the
          cumulative detriment of those duties which
          communities depend upon such officers to
          perform.


                               33
point.     At issue is whether a reasonable jury could decide that

the police diligently pursued their investigation, thereby making

the length of the detention acceptable.

             There is no direct testimony to rebut Karnes's

contention that the search occurred at 7:00 p.m. and that he was

released at 7:30 p.m.     A reasonable jury could not find that the

length of detention was less than 150 minutes.     Defendants

produce only weak evidence to justify either the 90-minute delay

between the arrival of the canine unit and its use or the nearly

two and one-half hour total delay.     Defendants contend Karnes was

so argumentative they were forced into a lengthy explanation of

their procedure.0    Even though the length of detention may have

been constitutionally excessive notwithstanding defendants'

explanation, a reasonable jury could find that defendants were

reasonable in their belief that the delay comported with

constitutional requirements.     Accordingly, this is a jury


0
    Trooper Kowalski explained the length of the delay:

             Mr. Karnes was so argumentative, I really
             didn't want to push the issue into a physical
             confrontation. I felt it was best, the
             position that we were in along the highway
             . . . . Even though there were two of us
             there--being that close to the highway,
             having to work a [sic] with the dog, having
             the left hand tied up with a lead, and then
             having to worry about my firearm, which was
             on my right side . . . .

                  And I really didn't want him to have any
             ill feelings about the state police. I
             wanted him to understand what was going on.

App. at 542.

                                  34
question, and the district court's denial of plaintiff's motion

for judgment as a matter of law on this point was not in error.

                                 V.

            Karnes also contends the district court erred by

admitting evidence at trial of his 1985 arrest for allegedly

assaulting his sister and verbally resisting arrest without

violence.   The court admitted this evidence under Federal Rule of

Evidence 404(b) to refute Karnes's contention that he suffered

damage from defendants' actions.      We review the district court's

admission of evidence of prior bad acts under an abuse of

discretion standard.   United States v. Traitz, 

, 389

(3d Cir.), cert. denied, 

(1989).

            Defendants argue the evidence was properly admitted

after Karnes testified that the incident in this case diminished

his respect for the police and thus caused him damage.     After

applying the balancing test of Federal Rule of Evidence 403, the

district court gave a limiting instruction, admonishing the jury

to consider the evidence only for the purpose of determining

damages.

            We have held that evidence of prior bad acts under Rule

404(b) can be admitted when the evidence is probative of a

material issue other than character.      

. We
see no abuse of discretion here.

                                VI.

            On the issues of reasonable suspicion and length of

detention we will reverse the district court's grant of

defendant's motion for judgment as a matter of law.     We will


                                 35
affirm the remainder of the district court's decisions.   We will

remand the case to the district court for it to allow the jury to

make a determination of the reasonable suspicion and length of

detention issues and for an assessment of damages as appropriate.




                               36