Filed: Nov. 24, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4563 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TOMMY ZEKE MINCEY, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:05-cr-00252) Argued: September 23, 2008 Decided: November 24, 2008 Before NIEMEYER, Circuit Judge, HAMILTON, Senior Circuit Judge, and T. S. ELLIS, III, Senior United States District J
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4563 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TOMMY ZEKE MINCEY, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:05-cr-00252) Argued: September 23, 2008 Decided: November 24, 2008 Before NIEMEYER, Circuit Judge, HAMILTON, Senior Circuit Judge, and T. S. ELLIS, III, Senior United States District Ju..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4563
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TOMMY ZEKE MINCEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00252)
Argued: September 23, 2008 Decided: November 24, 2008
Before NIEMEYER, Circuit Judge, HAMILTON, Senior Circuit Judge,
and T. S. ELLIS, III, Senior United States District Judge for
the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished opinion. Senior Judge Ellis wrote the
opinion, in which Judge Niemeyer and Senior Judge Hamilton
joined.
ARGUED: Kevin Andre Tate, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher,
Executive Director, Emily Marroquin, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
ELLIS, Senior District Judge:
Appellant, Tommy Zeke Mincey (“Mincey”), appeals his
conviction by a jury for possession with intent to distribute at
least 100 grams of heroin, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. At issue in this
appeal are the following questions:
(i) whether appellant, as an unauthorized driver of a
rental vehicle, had a legitimate expectation of
privacy in the rental vehicle, thus entitling him to
contest a warrantless search of the vehicle on Fourth
Amendment grounds,
(ii) whether verbal consent of the rental company provided
an independent basis for the warrantless search of the
vehicle,
(iii) whether the scope and duration of the vehicle stop
satisfied Fourth Amendment constitutional standards,
and
(iv) whether the trial court abused its discretion in
admitting into evidence alleged drug courier profile
evidence.
For the reasons that follow, we affirm.
I.
The trial record reflects that at approximately 1:33 p.m.
on October 3, 2005, Sergeant Randy Cass with the Iredell County
Sheriff’s Office stopped a 2000 Dodge four-door automobile with
Georgia plates traveling south on Interstate 77 near
Statesville, North Carolina. Sergeant Cass effected the stop
because he observed the Dodge following the car ahead of it too
3
closely, a violation of North Carolina traffic law. Once both
vehicles were stopped on the side of the road, Sergeant Cass
exited his police vehicle, walked toward the passenger side of
the stopped vehicle, activated his microphone, and then asked
the vehicle’s driver and sole occupant -- Mincey -- for his
driver’s license. Mincey produced a Michigan driver’s license
in the name of Kenyatta Anthony James containing a photo that
matched Mincey’s physical appearance. Sergeant Cass advised
Mincey why he had been stopped and then asked for the vehicle’s
registration. In response, Mincey produced a rental agreement
from the Armada Rental Company, advising Sergeant Cass that the
vehicle had been rented by his girlfriend in Georgia and that
her name was on the rental agreement.
While Mincey was locating the rental agreement, Sergeant
Cass asked him where he was traveling to on that occasion.
Mincey responded that he was driving back to Atlanta, Georgia
from Newark, New Jersey, where he had been visiting a family
member. Mincey further stated that he had recently moved from
Michigan to Dunwoody, Georgia and he provided Sergeant Cass with
his new Georgia address for use in Sergeant Cass’s issuance of a
citation. During this initial exchange, Sergeant Cass observed
a cell phone in the passenger seat of the rental vehicle, as
well as two open containers of energy drinks in the front cup
holders. He also recognized, based on his experience and
4
training, that Mincey’s reported travel destinations -- Newark
and Atlanta -- were known “source cities” for illegal drugs.
At approximately 1:38 p.m., Sergeant Cass returned to his
police vehicle with the driver’s license and rental agreement
that had been provided by Mincey, intending to verify the
information provided to him and then to issue Mincey a warning
citation for following the car ahead of him too closely.
Although writing such a citation would typically take Sergeant
Cass approximately five minutes, the stop required additional
time in this instance because Sergeant Cass was unable to verify
the validity of Mincey’s Michigan driver’s license through the
law enforcement communications system, a standard step in the
citation process. Specifically, Sergeant Cass first attempted
to verify Mincey’s license using the listed driver’s license
number, which the system revealed was not on file. Sergeant
Cass then performed a search using the name on the driver’s
license -- Kenyatta Anthony James. Again, the system disclosed
no Michigan driver’s license in that name. Sergeant Cass also
ran a search for the rental vehicle’s Georgia license plates and
confirmed that they were indeed registered to the vehicle in
question; this check also confirmed that the vehicle was owned
by the Armada Rental Company. In the meantime, while performing
these information checks, Sergeant Cass began writing the
5
warning citation using the driver’s license and residence
information that Mincey had provided.
At approximately 1:50 p.m., Sergeant Cass called the Armada
Rental Company and spoke with a woman named Chris to explain the
situation, namely that he had stopped one of the company’s
rental vehicles on the highway for a traffic violation and that
the driver and only occupant of the vehicle did not appear to be
an authorized driver under the rental agreement. Sergeant Cass
confirmed with Chris that Mincey was an unauthorized driver
under the rental agreement, which Chris was able to review on
the company’s computer system. Sergeant Cass then asked Chris
for consent to search the vehicle. In response, Chris advised
that she would need to speak with a manager and that someone
from the rental agency would need to call him back. Sergeant
Cass then gave Chris his cell phone number.
At approximately 1:55 p.m., an additional officer --
Sergeant Elliott -- arrived at the scene. 1 At this point,
Sergeant Cass turned his microphone off in order to update
Sergeant Elliott on his efforts to confirm the authenticity of
the Michigan driver’s license as well as Mincey’s status as an
unauthorized driver of the rental vehicle. At around this time,
and while Sergeant Cass’s microphone was off, another woman from
1
A third officer, Sergeant Byrd, arrived shortly
thereafter.
6
the rental company, Kari Peabody, called Sergeant Cass on his
cell phone. During the course of this conversation, Peabody
instructed Sergeant Cass that the rental vehicle could not be
released to Mincey, since he was an unauthorized driver under
the rental agreement. (J.A. 79). Peabody further advised that
the officers had permission to impound the vehicle or “to do
whatever [they] needed to do.” (J.A. 128). Sergeant Cass also
asked Peabody if he could search the vehicle. According to
Sergeant Cass’s uncontradicted testimony, Peabody put the phone
down briefly, apparently spoke with someone else at the rental
company, then advised Sergeant Cass, “yes, go ahead.” (J.A.
129). 2
At approximately 2:01 p.m., Sergeant Cass exited his police
vehicle and walked back to the passenger side of the rental
vehicle. He reactivated his microphone and asked Mincey to step
outside of the rental vehicle so that he could explain the
2
Sergeant Cass testified both during the suppression
hearing and in the course of the trial that Peabody gave him
verbal consent to search the rental vehicle. Peabody, in
contrast, who testified only at the suppression hearing, stated
only that she did not recall giving Sergeant Cass permission to
search the car during the course of their telephone
conversation. She also was not able to recall any specifics of
what she told Sergeant Cass to do with the rental vehicle. In
the circumstances, the district court found Sergeant Cass’s
uncontradicted testimony to be credible and thus found that the
rental company had verbally consented to the search of the
vehicle. (J.A. 246-47).
7
situation to him. Sergeant Cass then returned the Michigan
driver’s license to Mincey and handed him the warning citation,
which Sergeant Cass had issued using the name on the Michigan
driver’s license and the Georgia address Mincey had provided.
Sergeant Cass then showed Mincey the rental agreement and told
him that he had spoken on the telephone with the rental company.
Specifically, Sergeant Cass advised Mincey that the vehicle
could not be released to his possession because he was not an
authorized driver under the rental agreement. In light of this,
Sergeant Cass also offered to drive Mincey to the next exit on
the highway. Sergeant Cass then told Mincey that he and the
other officers were going to search the vehicle and asked Mincey
for consent to pat him down for weapons. Mincey consented to
the pat down, which revealed a cell phone in his pants pocket.
At approximately 2:03 p.m., Sergeant Cass motioned for
Sergeants Elliott and Byrd to assist him with the search of the
vehicle. At this point, Mincey asked for permission to return
to the vehicle to retrieve a cell phone to call his girlfriend,
the authorized driver of the rental vehicle. 3 Sergeant Cass
3
Janelle Crosby, Mincey’s purported girlfriend and the
authorized driver of the rental vehicle, testified in the course
of the suppression hearing that she had rented the vehicle for
Mincey because he did not have a credit card to secure the
rental. She further testified that she gave Mincey permission
to drive the vehicle. Yet, on the rental agreement, when asked
to identify the name, age and driver’s license number for any
(Continued)
8
declined to permit Mincey to return to the vehicle, reminding
Mincey that he already had a cell phone in his pocket. Sergeant
Elliott then pulled the rental vehicle further off the road for
safety purposes and the search began immediately thereafter.
Several minutes into the search, at approximately 2:07
p.m., Sergeant Cass pulled up the console around the vehicle’s
gearshift, a common site for concealing contraband, and there
discovered a plastic bag containing what appeared to him to be
illegal drugs. The package had been vacuum-sealed and wrapped
in fabric softener sheets and was later confirmed to contain
approximately 140 grams of high purity heroin. The search of
the interior of the vehicle also revealed (i) three cell phones,
in addition to the one located in Mincey’s pocket, one of which
was an untraceable “boost” phone, (ii) several cell phone
chargers, and (iii) MapQuest driving directions from Atlanta,
Georgia to Newark, New Jersey that had been printed on October
1, 2005, two days prior to the traffic stop, listing an
estimated driving time of nearly 14 hours. Also found in the
additional individuals who would be driving the vehicle, Crosby
wrote the word “None,” and signed her initials. (J.A. 41). The
rental agreement expressly provided that the vehicle was not to
be used “by any person not specified [in the agreement]” or “in
violation of any law, ordinance or regulation.” Id.
9
vehicle’s trunk were a pair of bolt cutters and a duffel bag
containing clothes and toiletries.
Immediately following discovery of the suspected
contraband, Mincey was ordered to the ground and arrested. He
was then transported to the narcotics office of the police
department. 4 During an initial post-arrest interview with
Detective Lieutenant David Ramsey, Mincey continued to identify
himself as Kenyatta Anthony James, claiming that the Michigan
driver’s license was valid and contained his correct name and
date of birth. Yet, when further questioned, he twice gave
Detective Ramsey an age inconsistent with the date of birth
listed on the driver’s license.
Later, in the course of subsequent questioning by Sergeant
Elliott, Mincey finally identified himself, for the first time,
as Tommy Mincey; he also reported a birth date different from
the date appearing on the Michigan driver’s license. 5 Then, in a
4
Following Mincey’s arrest, Sergeant Cass contacted another
officer, who then arrived at the scene and drove the rental
vehicle to the police station. Thereafter, at approximately
2:38 p.m., Sergeant Cass spoke with a store manager from the
rental company and advised him that the rental vehicle was ready
and available for pickup at the station.
5
Law enforcement officers eventually confirmed that the
Michigan driver’s license Mincey presented in the course of the
traffic stop was fraudulent.
10
voluntary statement to Sergeant Elliott, 6 Mincey provided an
explanation for his lengthy travel between Atlanta to Newark and
denied any knowledge of the heroin found inside the rental
vehicle. In this regard, Mincey stated that on October 2, 2005,
he met a Puerto Rican male named “Charles” at the 112 Strip Club
in Atlanta. Charles allegedly asked Mincey if he wanted to make
some money, and Mincey responded that he did. Mincey then met
with Charles across the street from the 112 Strip Club at a bus
station, where they allegedly negotiated a price of $5,000 for
Mincey to drive Charles from Atlanta to New Jersey. Mincey
claimed no further details were discussed about the trip at that
time.
According to Mincey, he and Charles left Atlanta in the
rental vehicle at approximately 12:00 p.m. on October 2, 2005.
Mincey and Charles each drove half the drive to New Jersey and
they ultimately arrived at the Cinderella Strip Club in Newark
at approximately 1:00 a.m. on October 3, 2005. They entered the
club and were inside for approximately 30 minutes, when Charles
asked Mincey for the keys to the vehicle. Charles then went
6
Prior to accepting this voluntary statement, Sergeant
Elliott read Mincey his Miranda rights, in the presence of
Sergeant Cass, and Mincey then knowingly and voluntarily waived
those rights in a written waiver form. (J.A. 481). See Miranda
v. Arizona, 384 U.S. 436 (1966). Mincey does not dispute the
voluntariness of either his statement or the waiver of his
Miranda rights in this instance.
11
outside with the keys and Mincey remained inside the club.
Later, when the club closed, Mincey went outside and observed
Charles inside a black Mercedes Benz. Charles then told Mincey
to drive the rental vehicle back to Atlanta by himself and that
he would “settle up” with Mincey on Tuesday at the 112 Strip
Club in Atlanta. (J.A. 490). According to Mincey, no further
details were discussed. Mincey thus began the drive back to
Atlanta at approximately 4:30 a.m. on October 3, 2005, and later
that day he was stopped by Sergeant Cass in North Carolina.
Mincey claimed he did not know how the heroin got inside the
rental vehicle and that he never had any discussions with
Charles about illegal drugs. Yet, he did admit to Sergeant
Elliott that the four cell phones found on his person and in the
rental vehicle on October 3, 2005, all belonged to him.
On October 25, 2005, Mincey was charged in a one-count
indictment with possession with intent to distribute at least
100 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A) and 18 U.S.C. § 2. Mincey filed a motion to suppress
the evidence resulting from the October 3, 2005 search of the
rental vehicle, arguing that the extended vehicle stop and
warrantless search violated his Fourth Amendment rights in
various respects. On June 6, 2006, following two days of
testimony, the district court denied Mincey’s motion to
suppress, concluding (i) that the initial traffic stop was valid
12
in that it resulted from a violation of North Carolina traffic
laws, (ii) that the length and scope of the investigatory
detention was reasonable in the circumstances, (iii) that Mincey
did not have standing to contest the warrantless search as an
unauthorized driver of the rental vehicle, and (iv) that the
rental company consented to the search in any event. (J.A.
246).
On July 12, 2006, following a two-day jury trial, Mincey
was convicted as charged, with one count of possession with
intent to distribute at least 100 grams of heroin. Mincey was
subsequently sentenced on this offense to 150 months
imprisonment, to be followed by 8 years of supervised release,
with a final Judgment being entered on June 1, 2007. Mincey
then filed a timely notice of appeal raising essentially four
issues, each of which is addressed here.
II.
Mincey’s first three arguments on appeal concern the
district court’s denial of his motion to suppress. On appeal,
we review legal conclusions underlying the denial of a motion to
suppress de novo, and factual findings for clear error. United
States v. Moreland, 437 F.3d 424, 429 (4th Cir. 2006) (citing
United States v. Johnson,
114 F.3d 435, 439 (4th Cir. 1997)).
In this context, “[w]e construe the evidence in the light most
13
favorable to the Government, the prevailing party below.”
United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998)
(citations omitted).
A.
Mincey first argues that the district court erred in
holding that he, as an unauthorized driver under the rental
contract, did not have standing to contest the warrantless
search of the rental vehicle. 7 As to this issue, it is well
settled that only where a search intrudes upon a space as to
which an individual has “a legitimate expectation of privacy”
may the individual contest the search on Fourth Amendment
grounds. United States v. Wellons, 32 F.3d 117, 119 (4th Cir.
1994) (citing Rakas v. Illinois,
439 U.S. 128, 143 (1978)).
And, the question whether an expectation of privacy is
“legitimate” requires a two-prong test, namely (i) whether the
individual had a subjective expectation of privacy in the area
searched, and (ii) whether that subjective expectation of
privacy is objectively reasonable based on “concepts of real or
personal property law” or “understandings that are recognized
7
Although courts continue to use the generic term
“standing” in this context, it is clear that the proper legal
inquiry is whether the individual at issue had a “legitimate
expectation of privacy” in the area searched, as discussed
infra. United States v. Wellons, 32 F.3d 117, 119 (4th Cir.
1994) (citation omitted).
14
and permitted by society.” Rakas, 439 U.S. at 143, n.12.
Although common law concepts of real and personal property are
not dispositive of this issue, it is important to note that “one
who owns or lawfully possesses or controls property will in all
likelihood have a legitimate expectation of privacy by virtue of
this right to exclude.”
Id.
Here, Mincey’s subjective expectation of privacy in the
rental vehicle is not in dispute. Rather, the only question
presented is whether his subjective expectation of privacy was
objectively reasonable, thus rendering it “legitimate” and
entitled to Fourth Amendment protection. As to this issue, our
previous decision in Wellons is squarely on point. There, we
held definitively that an unauthorized driver of a rental
vehicle has no legitimate privacy interest in the vehicle and
therefore cannot contest a warrantless search of the vehicle on
Fourth Amendment grounds. See
Wellons, 32 F.3d at 119
(citations omitted). We further held in Wellons that this
conclusion was not altered where, as here, the authorized lessee
allows the unauthorized driver to drive the rental vehicle, as
an unauthorized driver still does not have permission of the
rental company, the owner of the vehicle.
Id. at 119 n.2.
Mincey readily acknowledges application of Wellons to the
facts presented here, but nonetheless urges us to reconsider
Wellons in light of the analyses adopted by several other
15
circuits with respect to the unauthorized rental driver issue.
Yet, a review of the applicable case law reveals no persuasive
reason to overturn or alter the Wellons holding in this
instance.
In this regard, the Fifth, Tenth and Eleventh Circuits
appear to be in accord with this circuit in holding that an
unauthorized driver of a rental vehicle does not have a
legitimate privacy interest in that vehicle for purposes of the
Fourth Amendment, regardless of whether the unauthorized driver
has the authorized renter’s permission to drive the vehicle.
See United States v. Riazco, 91 F.3d 752 (5th Cir. 1996); United
States v. Roper,
918 F.2d 885 (10th Cir. 1990); United States v.
Boruff,
909 F.2d 111 (5th Cir. 1990); 8 United States v. Obregon,
748 F.2d 1371 (10th Cir. 1984); United States v. McCulley,
673
F.2d 346 (11th Cir. 1982). The Eighth and Ninth Circuits take a
8
Mincey cites the Fifth Circuit’s decision in United
States v. Kye Soo Lee, 898 F.2d 1034 (5th Cir. 1990), as
reaching a different result. Interestingly, Boruff and Lee were
decided in the same year, although Boruff is the later published
opinion. The Fifth Circuit has subsequently noted the apparent
conflict between Boruff and Lee, making clear that the holding
in Boruff is the general rule followed in the Fifth Circuit.
See United States v. Seeley,
331 F.3d 471, 472 n.1 (5th Cir.
2003). In any event, Lee is at least distinguishable in its
reasoning in that it does not even address the fact that the
hired rental truck drivers in that case were not listed as
authorized drivers on the subject rental agreement, analogizing
the case instead to one where an individual borrows a personal
vehicle from another with the other’s consent.
16
different approach, holding generally that an unauthorized
driver of a rental vehicle may have a legitimate expectation of
privacy in the vehicle for Fourth Amendment purposes if he is
able to establish that the authorized renter/driver gave him
permission to drive the vehicle, as involved here. See United
States v. Muhammad, 58 F.3d 353 (8th Cir. 1995); United States
v. Best,
135 F.3d 1223 (8th Cir. 1998); United States v. Thomas,
447 F.3d 1191 (9th Cir. 2006). 9 And finally, the Sixth Circuit
has adopted a totality of the circumstances analysis on the
issue, holding that permission of the lessee to drive a rental
vehicle is but one of many factors to be considered in
determining whether an unauthorized driver has a legitimate
privacy interest in a rental vehicle. United States v. Smith,
263 F.3d 571 (6th Cir. 2001).
9
Although not necessary to the result reached here, it
should nonetheless be noted that this line of cases is factually
distinguishable from the case at bar. Indeed, even assuming
Mincey had the permission of the authorized renter to drive the
rental vehicle in this instance, any such permission clearly
terminated once the rental company affirmatively advised
Sergeant Cass that Mincey, as an unauthorized driver under the
rental contract, was not entitled to possess the vehicle and
that the vehicle was not to be released to Mincey at the scene
of the traffic stop. In other words, at that moment, any
permission that had previously been extended to Mincey by the
authorized driver of the rental vehicle was effectively
extinguished by the rental company, the actual owner of the
vehicle and issuer of the subject rental contract.
17
While recognizing the varying approaches adopted elsewhere,
Mincey’s argument is appropriately rejected in this instance in
light of Wellons. 10 Nor are we persuaded to depart from our
prior precedent in any respect. Put simply, Mincey, as an
unauthorized driver under the Armada rental contract, had no
legitimate expectation of privacy in the rental vehicle and
cannot contest the warrantless search of the vehicle on Fourth
Amendment grounds. This is especially so where, as here, the
rental company, on learning of the vehicle’s unauthorized use,
instructs that the vehicle is not to be released to the
unauthorized driver.
B.
Mincey next argues that the district court erred in denying
his motion to suppress on the alternative basis of consent for
the search having been given by the rental company, arguing
specifically that any consent by the agency did not provide an
independent justification for the warrantless search when the
vehicle had already been rented to a third party. In the
circumstances, given that Mincey had no legitimate expectation
of privacy in the rental vehicle at the time of the warrantless
10
We have previously reaffirmed our holding in Wellons in
several unpublished decisions. See United States v. Rollack,
173 F.3d 853 (Table),
1999 WL 104806 (4th Cir. Mar. 1, 1999);
United States v. Hannah,
168 F.3d 483 (Table),
1998 WL 911709
(4th Cir. Dec. 31, 1998).
18
search, it is unnecessary to reach or decide the issue of
consent in this instance.
C.
Mincey next contends that the district court erred in
denying his motion to suppress based on the length and scope of
the traffic stop and the accompanying investigatory detention.
In this regard, Mincey contends that he was detained and
questioned by Sergeant Cass beyond the scope of the initial
traffic stop without sufficient basis or a reasonable suspicion
that he was involved in criminal activity, thus violating his
Fourth Amendment rights. See Reid v. Georgia, 448 U.S. 438, 440
(1980).
Mincey is correct that “[a] seizure that is justified
solely by the interest in issuing a warning ticket to the driver
can become unlawful if it is prolonged beyond the time
reasonably required to complete that mission.” Illinois v.
Caballes, 543 U.S. 405, 407 (2005). It is also clear that in
order to detain a driver for investigative purposes beyond the
issuance of a traffic citation or warning, an officer must
possess “a reasonable and articulable suspicion that the person
seized is engaged in criminal activity.”
Reid, 448 U.S. at 440
19
(citations omitted). 11 In evaluating whether an investigative
detention is supported by reasonable suspicion in this regard, a
reviewing court must consider the totality of the circumstances
known to the investigating officer, including the “specific
reasonable inferences which he is entitled to draw from the
facts in light of his experience.” Terry v. Ohio, 392 U.S. 1,
27 (1968).
Here, it is unnecessary to reach the reasonable suspicion
analysis, as the scope and duration of the vehicle stop were
justified by the time and actions necessary for Sergeant Cass to
verify the information contained in the driver’s license and
rental agreement provided to him by Mincey, a required step in
the issuance of a valid citation. Indeed, the record reflects
that no more than 35 minutes elapsed from the time Mincey was
initially stopped until his ultimate arrest; this time included
the search of the rental vehicle. A review of the law
enforcement video and microphone recordings of the vehicle stop
also confirms the reasonableness of the time and actions
necessary for Sergeant Cass to verify Mincey’s identity and
11
For purposes of the “reasonable suspicion” analysis,
“the likelihood of criminal activity need not rise to the level
required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard....” United
States v. Arvizu, 534 U.S. 266, 274 (2002) (citation omitted).
20
unauthorized driver status in this instance. 12 In the
circumstances, therefore, the scope and duration of the vehicle
stop did not violate Mincey’s Fourth Amendment rights and the
district court did not err in denying Mincey’s motion to
suppress on this ground. 13
III.
Mincey’s fourth and final argument on appeal is that the
district court abused its discretion when it allowed alleged
drug courier profile testimony to be admitted as evidence in the
course of the jury trial. In this respect, we note that
evidentiary rulings are generally reviewed for abuse of
discretion. United States v. Queen, 132 F.3d 991, 995 (4th Cir.
12
As noted above, such actions included Sergeant Cass’s
unsuccessful efforts to verify Mincey’s Michigan driver’s
license through the law enforcement communications system, first
by number and then by name. Further time was consumed by
Sergeant Cass’s reasonable telephone communications with several
representatives from the rental company (i) to confirm that
Mincey was an unauthorized driver of the subject rental vehicle
and (ii) to obtain the rental company’s instructions with
respect to the vehicle, including, inter alia, their consent to
a warrantless search.
13
Because we find that the duration of the traffic stop
was reasonable, we do not need to reach the further issue of
whether Sergeant Cass had “a reasonable and articulable
suspicion” that appellant was engaged in criminal activity.
Reid, 448 U.S. at 440. We note, however, that the facts
presented here are sufficient to support such a finding,
particularly with respect to Mincey’s fraudulent use of a
driver’s license.
Id.
21
1997) (citation omitted). Thus, a trial court’s determination
to admit evidence should not be disturbed on appeal unless the
trial court has acted “arbitrarily or irrationally.” United
States v. Jones,
913 F.2d 174, 177 (4th Cir. 1990) (citing
United States v. Masters,
622 F.3d 83, 87-88 (4th Cir. 1980)).
We have previously held that it is “clearly impermissible”
for the government to attempt “to establish the defendant’s
guilt by showing that he has the same characteristics as a drug
courier.” Jones, 913 F.2d at 177. Put differently, “the use of
expert testimony as substantive evidence showing that the
defendant ‘fits the profiles and, therefore, must have intended
to distribute the . . . [drugs] in his possession’ is error.”
Id. (quoting United States v. Quigley,
890 F.2d 1019 (8th Cir.
1989), cert. denied,
493 U.S. 1091 (1990)). We nonetheless
recognized in Jones that drug courier profile evidence may still
be used in appropriate circumstances, including, for example,
“as purely background material to explain why the defendant was
stopped...[or] to rebut testimony provided by a defendant who
claims that he is not a typical drug courier.”
Jones, 913 F.2d
at 177 (citing United States v. Sokolow,
490 U.S. 1 (1989),
United States v. Beltran-Rios,
878 F.2d 1208 (9th Cir. 1989)).
Here, the alleged improper drug courier profile evidence
pertained to Mincey’s possession of four cell phones at the time
of his arrest. Specifically, Mincey objects to the district
22
court’s admission of Sergeant Cass’s testimony -- presented in
the course of government counsel’s re-direct examination -- that
drug couriers typically carry multiple cell phones, particularly
boost phones, to guarantee that they will have sufficient
cellular coverage to stay in contact with the person for whom
they are transporting drugs. 14
While the disputed testimony may arguably be viewed as drug
courier profile evidence, the record reflects that the testimony
was elicited by government counsel in this instance as rebuttal
evidence, consistent with our previous holding in Jones. 913
F.2d at 177. Indeed, in the course of cross-examination,
Mincey’s counsel asked Sergeant Cass, “Now, with respect to
those cell phones, there’s nothing illegal about having a cell
phone, is there?”, to which Sergeant Cass simply responded, “No,
sir.” (J.A. 373). A review of the trial transcript makes clear
that the alleged drug courier profile evidence at issue was
14
In this regard, Sergeant Cass testified that
[a] drug courier is going to have to keep in contact
with the person that they’re hauling drugs for. They
will give them multiple phones to where they can
guarantee they’re going to have coverage. Anyone
that’s got a cell phone will know there’s some places
your phone won’t pick up so they’ll give them a
different type of phone.
(J.A. 379-80). Sergeant Cass further testified that “boost
phones have been prevalent” in many of the stops and seizures
made by his office. (J.A. 380).
23
thereafter elicited by government counsel during its re-direct
examination as a means to rebut Sergeant Cass’s testimony
regarding the legality of possessing multiple cell phones. 15 See
Jones, 913 F.2d at 177 (recognizing that drug courier profile
evidence may be used “to rebut testimony provided by a defendant
who claims that he is not a typical drug courier”).
In an attempt to avoid this result, Mincey argues that the
single question posed to Sergeant Cass by Mincey’s counsel on
cross-examination regarding the legality of possessing multiple
cell phones was necessary given the government’s “protracted
references [in the course of direct examination] to Mincey’s
possession of multiple cell phones as being indicia of his
knowledge that drugs were in the rental vehicle.” (Appellant
15
Indeed, the contested testimony was prefaced by the
following exchange between government counsel and Sergeant Cass:
Q. Do you remember something to the effect [that]
there’s nothing illegal about having multiple cell
phones?
A. Yes, sir.
Q. Based on your training and experience, is there a
reason for somebody involved in drug activity . . . to
have multiple cell phones?
A. Yes, sir.
Q. And based on your training and experience, what
is the purpose of having multiple cell phones?
(J.A. 379).
24
Reply Br. 9). Yet, this argument is unpersuasive; a review of
the trial transcript makes clear that Sergeant Cass’s testimony
on direct examination pertaining to Mincey’s four cell phones
amounted to nothing more than an identification and general
description of the various items discovered in the course of the
vehicle search conducted in this case. Significantly, no drug
courier profile evidence was elicited during the course of
Sergeant Cass’s testimony on direct examination. Thus, contrary
to Mincey’s contentions, the government, in its direct
examination of Sergeant Cass, did not attempt “to establish the
defendant’s guilt by showing that he has the same
characteristics as a drug courier.” Jones, 913 F.2d at 177.
In the circumstances, given that Mincey’s counsel opened
the door to the contested testimony in the course of his cross-
examination of Sergeant Cass, the alleged drug courier profile
evidence elicited by the government in the course of its re-
direct examination of Sergeant Cass is appropriately viewed as
rebuttal evidence consistent with our holding in Jones. Id.
The district court, therefore, neither abused its discretion nor
acted “arbitrarily or irrationally” in admitting this testimony
in the course of Mincey’s trial.
Jones, 913 F.2d at 177
(citation omitted).
25
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
26
