On August 17, 2020, the Fourth Circuit Court of Appeals decided the United States v. Villavicencio[i], which serves as an excellent review of law regarding traffic stops, reasonable suspicion, and when an officer can expand the scope of the stop.  The relevant facts of Villavicencio, while lengthy are taken directly from the case because cases such as this are very fact-specific.  The facts are as follows:

On February 17, 2016, Wiessman and her partner, Trooper Trey Strickland, were monitoring traffic on Interstate 95 (“I-95”), a known drug corridor, in Robeson County, North Carolina. Wiessman was observing southbound traffic from a stationary position in a marked patrol car. Her cruiser sat on the median adjacent to Strickland’s patrol car, approximately six miles from the North Carolina-South Carolina border. During her surveillance, Wiessman observed a black Chevrolet Suburban SUV “traveling at a high rate of speed.” [*4]  (J.A. 138.) After confirming with her radar detector that the SUV was speeding, Wiessman followed the vehicle and initiated a traffic stop. Wiessman’s dashcam video, which captured the stop and the time of the events, indicates that the traffic stop commenced at 10:43 a.m.

Instead of pulling over to the right shoulder, the SUV pulled over to the left side of the road on the edge of the median. Wiessman believed this to be abnormal behavior. Around 10:44 a.m., Wiessman approached the vehicle from the passenger side and made several initial observations. First, she noticed that the SUV had Florida license plates and likely was a rental vehicle because it had “a bar code on the window” and “a single key hanging from the ignition.” (J.A. 142.) Wiessman also noticed four cell phones and some keys in the center console area, as well as a laptop computer on the rear passenger seat. Aside from these items, there was not much else visible in the vehicle.

Wiessman then tapped on the window to announce her presence, which appeared to startle the passengers. The occupants rolled down the passenger window and Wiessman explained who she was, that she stopped the vehicle for speeding, and asked the [*5]  driver, later identified as Villavicencio, for his driver’s license and vehicle registration. Villavicencio apologized, admitted he was going too fast, and immediately complied by producing his Florida driver’s license. The passenger, identified as Rivero, told Wiessman that Villavicencio did not speak very good English. Nonetheless, Wiessman testified that Villavicencio communicated well with her. Rivero also produced a Florida driver’s license and volunteered that he and Villavicencio had traveled from Florida to North Carolina and were on their way back to Florida. Rivero gave Wiessman the rental agreement for the SUV, at which point Wiessman asked Villavicencio to exit the SUV and accompany her to her patrol car so that she could check his license and information.

When Villavicencio exited the SUV, Wiessman asked Villavicencio if he had any weapons on him, and he responded no. Villavicencio also consented to a weapons frisk, and none were found. Wiessman then instructed Villavicencio to sit in the front passenger seat of her patrol car and he complied.

At approximately 10:48 a.m., Villavicencio entered the patrol car and Wiessman began collecting Villavicencio’s information and entering [*6]  it into the Division of Criminal Information Network and the National Criminal Information Center. Wiessman explained that such routine checks are used to confirm that a driver’s license is valid and that there are no outstanding warrants. While running the checks, Wiessman continued to talk to Villavicencio about his travel itinerary. During their discussion, Wiessman learned that the men had traveled from Orlando, Florida, but Villavicencio was unable to identify the town they had visited in North Carolina. Instead, he referred her to the SUV’s GPS and his hotel receipt. Villavicencio also stated that he and Rivero were in North Carolina to meet female friends. In addition, he informed Wiessman that he cleaned cars for a rental car company, which, in Wiessman’s experience, indicated that Villavicencio might be “connected to some type of drug trafficking.” (J.A. 234-35.)

Wiessman testified that Villavicencio’s behavior suddenly changed when he sat in the patrol car. His ability to comprehend and speak English declined and his demeanor became child-like. Wiessman specifically recalled Villavicencio smiling and “recoiling” towards the door. (J.A. 155.) According to Wiessman, Villavicencio [*7]  also became increasingly nervous during their interaction. She nonetheless continued to question Villavicencio about his travel plans, occasionally mixing English and Spanish terms to ensure Villavicencio adequately understood what was asked of him and, more importantly, to ensure that she understood him. Wiessman testified that she became suspicious of Villavicencio’s inability to understand English because “[h]e was intentionally trying to demonstrate to [her] that he didn’t understand.” (J.A. 157.) Wiessman explained that he would respond, “‘What, what?’ And then lean[] back and giv[e] [her an uncanny] smile.” (Id.)

The minute mark on the dashcam video reflects that the databases returned clean results, confirming Villavicencio’s driver’s license and the lack of any warrants, approximately five minutes after he sat in Wiessman’s patrol car. Wiessman then began reviewing the car rental agreement. Upon reviewing the agreement, Wiessman noticed that the agreement listed the renter’s name as “Isidoro Perez,” rather than “Isidoro Rivero.” (J.A. 162.) Wiessman also noticed that they had rented the SUV on February 15, 2016, at 11:34 p.m., from the Orlando International Airport, and that [*8]  it was required to be returned on February 18, 2016, at 9:00 a.m. Considering the travel time from the location of the traffic stop in North Carolina to the Orlando airport was approximately 24-26 hours roundtrip, Wiessman discerned that Villavicencio and Rivero had been in North Carolina for less than 24 hours. In addition, the rental cost of the SUV was $630.47, which Wiessman thought was “rather expensive for a one-day trip.” (J.A. 162.) Because Villavicencio had not articulated specific travel plans and could not identify the town he and Rivero had visited, Wiessman thought that their travel was out of the ordinary.

Wiessman testified that, at this point, she developed reasonable suspicion that Villavicencio and Rivero were engaged in criminal activity. According to Wiessman, it was not just one thing that made her suspicious:

It’s a combination of many things: The anomalies that were present, the facts that I had that presented themselves to me was—everything from the way the stop occurred to how they pulled over to [how] they understood English enough to follow my directions, how they got out of the vehicle and . . . [were] able to follow my simple commands at that time—and I spoke [*9]  plain, simple English—to the fact that the minute [Villavicencio] got in my vehicle, I noticed that his communication dissipated. It deteriorated. It was just degrading itself, but it was . . . intentional. And I notice that his mannerisms, the way that he was acting, the way that he was overly smiling, he was like just becoming very shifty in his seat. He was moving around. He was looking at my camera, staring at the camera. Then he’d look back at me and lean at the window. All these things, the totality of the circumstances, not just one specific thing. But again, in my training and experience, I’m trained to look at all of these things.

(J.A. 167.) Wiessman also explained that she considered everything she observed, including the four cell phones in Villavicencio and Rivero’s possession, the lack of visible luggage or “travel comforts” in the vehicle, (J.A. 168), Villavicencio’s reluctance to confirm or explain where they were going, who they were with, or where they were staying, and that Dunn, North Carolina, is not a tourist destination.

Around 11:01 a.m., Wiessman issued a warning ticket to Villavicencio and informed him that he was not an authorized driver on the rental agreement. [*10]  She also stated that she planned to speak to Rivero to let him know that Villavicencio could no longer drive the SUV and instructed Villavicencio to remain in her patrol car while she spoke to Rivero. Sometime before issuing the warning ticket, Wiessman called Trooper Strickland for back-up and decided she would seek consent to search the SUV.

As Wiessman approached the rental car, she noticed that Rivero was talking on a cell phone and then “hung up real quick.”1 (J.A. 173.) Wiessman asked Rivero to step out of the car so that she could speak to him. Rivero understood her request and complied. Once he exited the car, Wiessman noticed that Rivero’s breathing became heavy and his English started to decline. Wiessman asked Rivero about the discrepancy between the rental agreement and his driver’s license, and Rivero confirmed that his full name was “Isidoro Perez Rivero.” (J.A. 175.) Wiessman also asked Rivero how long he had known Villavicencio and where Villavicencio lived to which Rivero responded that Villavicencio and he were childhood friends. He could not, however, tell her where Villavicencio lived. When Wiessman asked why the two men had traveled to North Carolina, Rivero simply [*11]  shrugged his shoulders and said, “just to look around.” (J.A. 176.) When Wiessman inquired where the men stayed in North Carolina, Rivero produced a hotel receipt for the Hampton Inn in Dunn, North Carolina, which showed that the men checked into the hotel on February 16, the night before the stop, at 11:35 p.m. Wiessman returned the rental agreement and driver’s license to Rivero and inquired if she could speak to him further to which he agreed. Wiessman, ultimately, asked Rivero for consent to search the SUV. Rivero verbally consented and signed a consent to search form.

Upon his arrival, Trooper Strickland conducted a canine search of the vehicle. The canine did not alert to the presence of narcotics. Wiessman then conducted a search of the SUV’s interior, during which time she noticed something was amiss with the skirting on the front passenger seat. She reached down to further inspect the area that appeared to have been manipulated, noticed it was loose and, with little effort, the skirt fell. Concealed inside was a baggie with 100 credit cards, a skimming device, a master key for gas pumps, and a fake identification card for Rivero, bearing Rivero’s picture but in the name of [*12]  “Alexander Martinez[.]” (J.A. 182.) The credit cards were also in the name of “Alexander Martinez” as well as “Christian Rodriguez.” (J.A. 182-83.)

Wiessman returned to her patrol car to retrieve her phone, which she found under the front passenger seat. Next to her phone, she discovered a driver’s license depicting Villavicencio and bearing the name “Christian Rodriguez.” (J.A. 183.) Law enforcement later searched the laptop from the SUV and discovered about 1,300 credit card numbers on the computer.[ii]

Villavicencio and Rivero were subsequently indicted under federal law for numerous violations related to counterfeiting.  They filed motions to suppress the evidence and argued that the trooper expanded the duration of the stop by asking questions unrelated to the stop, and as such, the consent to search was the product of unreasonable detention under the Fourth Amendment.  The district court denied the motion and both defendants entered guilty pleas with the right to appeal the denial of the motion to suppress.  Both filed appeals with the Fourth Circuit Court of Appeals and the appeals were combined because both involved the same issue and argument.

The argument by Villavicencio and Rivero on appeal was the trooper unlawfully detained Villavicencio, the driver, without reasonable suspicion after he was issued a warning citation and that unlawful detention led to the consent to search and the discovery of the evidence; therefore, the defendants argued since the evidence the product of unlawful detention, it must be suppressed.


The court of appeals then examined the legal principles related to this issue.

First, the court noted that traffic stops are akin to Terry stops.  For a Terry stop to meet the Fourth Amendment reasonableness standard, it must (1) be lawful at its inception and (2) “the officer’s actions during the seizure [must be] reasonably related in scope to the [legal] basis for the stop.”[iii]  The first factor of this reasonableness test is satisfied when the officer has probable cause or reasonable suspicion to believe a traffic offense has occurred.  The second factor requires the officer to keep the business of the traffic stop related to the reason for the stop.  The court noted that a traffic stop that meets the first factor can subsequently become unreasonable under the Fourth Amendment if the officer deviates from the purpose of the stop such that the duration of the stop is extended beyond the time it would take to complete the purpose of the stop.

Second, the court then expanded on legal principles related to the permissible duration of a traffic stop.  Specifically, the court stated

The acceptable duration of a traffic stop “is determined by the seizure’s mission—to address the traffic violation that warranted the stop and attend to related safety concerns.” Rodriguez v. United States, 575 U.S. 348, 354, 135 S.Ct. 1609, 1615, 191 L.Ed.2d 492 (2015) (internal quotation marks and citation omitted). Ordinary tasks related to a traffic stop include “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Id. at 349. An officer can also ask about a rental car agreement, as Villavicencio’s counsel conceded at oral argument. These types of “checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.” Id. In addition, an officer may permissibly ask questions of the vehicle’s occupants that are unrelated to the violation, provided that doing so does not prolong the stop absent independent reasonable suspicion. Id. at 355. In assessing the reasonableness of a stop, we consider “what the police in fact do.” Id. at 357. Thus, the “critical question” is not whether the unrelated investigation “occurs before or after the officer issues a ticket,” but whether conducting the unrelated investigation “prolongs—i.e., adds time to—the stop.” Id. (internal quotation marks omitted). A traffic stop becomes unlawful “when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id. at 354.[iv]

Third, the court of appeals examined the legal principles related to the reasonable suspicion required in order for an officer to reasonably, under Fourth Amendment, expand the scope of the traffic stop by asking questions that may be unrelated to the basis for the stop and detaining a person for a canine sniff of the vehicle.  The court stated

In order to meet this standard, an “officer’s suspicions must . . . be more than an ‘inchoate and unparticularized suspicion or hunch'” of criminal activity. United States v. Johnson, 599 F.3d 339, 345 (4th Cir. 2010) (citing Terry, 392 U.S. at 27). Rather, “a police officer must offer ‘specific and articulable facts’ that demonstrate at least ‘a minimal level of objective justification’ for the belief that criminal activity is afoot.” Bowman, 884 F.3d at 213 (quoting United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008)). We “‘cannot reasonably demand scientific certainty . . . where none exists,'” and “must permit officers to make ‘commonsense judgments and inferences about human behavior.'” Glover, 140 S. Ct. at 1188 (quoting Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)).

When reviewing whether an officer developed reasonable suspicion, we look at the totality of the circumstances. Arvizu, 534 U.S. at 274. The possibility that some facts on their own might be innocently explained does not suffice to defeat a finding of reasonable suspicion if “the articulated factors . . . ‘in their totality serve to eliminate a substantial portion of innocent travelers.’Palmer, 820 F.3d at 650 (quoting Williams, 808 F.3d at 246); see also Navarette, 572 U.S. at 403 (noting that an officer “‘need not rule out the possibility of innocent conduct'”).[v]

The court of appeals then set out to apply these principles to the facts of this case.


The defendants concede that the traffic stop was initially legal, in that the stop was for speeding.  The defendant’s argument, in this case, was that, after the trooper issued Villavicencio the warning citation, she had completed all tasks related to the stop and they should have been released.  However, they were not released; rather, the trooper had Villavicencio remain in her vehicle and returned to the rental car to speak to the passenger, Rivero, regarding their travels, the rental agreement, which bore a variation of his name, and request consent to search the car.  If the trooper had reasonable suspicion that Villavicencio and Rivero were involved in other criminal activity at the time she issued Villavicencio the warning citation and returned to the car to speak to Rivero, then the continued stop, the consent, and the discovery of the evidence is legal under the Fourth Amendment.  If there was no reasonable suspicion at that time, the evidence should be suppressed.

The court of appeals noted that the district court relied on nine factors when it found reasonable suspicion was present and denied the motion to suppress.  The nine factors were as follows:

(1) the defendants were traveling through a known drug corridor;

(2) they traveled a long distance and stopped for approximately 24 hours before returning to Orlando, Florida;

(3) Villavicencio oddly pulled over to the left shoulder as opposed to the right as most drivers do;

(4) the defendants were in a rental car with four cell phones and a laptop computer but no visible luggage;

(5) the name on the car’s rental agreement did not match the name on Rivero’s driver’s license; (

6) the cost of the rental car was $630.47, which Wiessman thought was excessive;

(7) the defendants drove to a remote, non-tourist destination purportedly to visit one or more female friends;

(8) Villavicencio could not identify the town he and Rivero had stayed in the night before; and

(9) he exhibited strange behavior and became increasingly nervous during his interaction with Wiessman. (J.A. 279-80.)[vi]

For the reasons discussed below, the court of appeals agreed with the district court that reasonable suspicion was present, but did not agree that all the factors listed by the district court were relevant.  The court considered each factor both individually and as part of the totality of the circumstances.

The court determined that the first two factors were relevant to the determination of reasonable suspicion.  The trooper had twenty-five years of law enforcement experience and testified that, based on training and experience, I95 was a frequently used drug corridor.  The court of appeals stated that they had “little doubt” that the rental car traveling on I95 from Florida enters into the reasonable suspicion analysis.

Regarding the third factor, the court found no significance to Villanicencio stopping on the left shoulder rather stopping on the right shoulder.

Regarding the fourth factor, the court found no significance to the fact there was no luggage visible, stating that people keep luggage in the trunk.  However, the presence of four cellphones for two people, while standing alone is not significant, in the context of this case, in the totality of the circumstances, the court found that it was a factor that contributed to reasonable suspicion because drug traffickers often have a personal phone and a “work” phone.

Regarding the fifth factor, the variation of Rivero’s name on the driver’s license and the rental agreement, the court found of “minimal value.”

Regarding the sixth factor, the trooper testified that the significant cost of the rental car, $630, was “abnormal” and high for someone to pay for a trip of such a short duration.  The court of appeals noted that the trooper was entitled to rely on this as a factor in the totality of the circumstance to develop reasonable suspicion.

Regarding the seventh factor, the court found it the travel itinerary was unusual in that the defendants were driving a long distance, for a 24 hour or less stay, to visit two females while paying $630 to rent a car.

Regarding the eighth factor, the court found it insignificant that the defendants could not name the town where they stayed in North Carolina, especially given the current reliance on GPS devices to navigate.

Lastly, the court considered the ninth factor, the nervousness of Villavicencio.  The court of appeals noted that it is not uncommon for people to be nervous when stopped by the police.  The court stated

A driver’s nervousness is not a particularly good indicator of criminal activity, because most everyone is nervous when  interacting with the police.'” Id. at 214 (citing Palmer, 820 F.3d at 652-53 n.7). But what is relevant to the determination of reasonable suspicion is whether the driver exhibits “nervous, evasive behavior.” Id. (citing Wardlow, 528 U.S. at 124) (emphasis added).[vii]

In this case, the trooper pointed to the fact that Villavicencio’s nervousness increased throughout the stop.  While in the police vehicle during the computer checks, he appeared to speak English progressively worse, as if he was intentionally trying to avoid answering questions.  He smiled awkwardly.  He recoiled from the trooper in the car when she asked questions.  Additionally, and significant, was the fact that after the trooper issued Villavicencio a warning citation, he seemed to become more nervous.  This is would normally cause a person to become less nervous.  The court held that under the circumstance of this case, nervousness was a factor to consider for reasonable suspicion.

The court of appeals then held

Under the totality of the circumstances, we conclude that Wiessman had reasonable suspicion that there were “drugs in this vehicle, possibly concealed,” J.A. 166, at the time she issued Villavicencio the warning ticket, thereby justifying Villavicencio’s further detention and a lengthier stop.[viii]

Because Wiessman possessed reasonable suspicion that criminal activity was afoot, she was constitutionally entitled to direct Villavicencio to remain in her cruiser and to question Rivero. Villavicencio  does not dispute that Rivero’s subsequent consent to a search of the vehicle was voluntary. Indeed, Rivero verbally agreed to the search in addition to signing a written consent form. The consensual search of the vehicle therefore complied with the Fourth Amendment.[ix]

Therefore, the court of appeals affirmed the denial of the motion to suppress.



[i] No. 18-4681, No. 18-4725 (4th Cir. Decided August 17, 2020)

[ii] Id. at 3-12

[iii] Id. at 16

[iv] Id. at 16-17 (emphasis added)

[v] Id. at 21-22 (emphasis added)

[vi] Id. at 22-23

[vii] Id. at 28-29

[viii] Id. at 31

[ix] Id. at 35-36

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