UNITED STATES of America, Plaintiff-Appellee, v. Kevin Andrew PACK II, Defendant-Appellant, 396 F. App'x 166

PER CURIAM: The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor (FED. R. APP. P. and 5TH Cir. R. 35), the Petition for Rehearing En Banc is DENIED. Voting for en banc rehearing were: Judge Jerry E. Smith, Judge Jacques L. Wiener, Jr., Judge Fortunato P. Bena-vides, Judge Carl E. Stewart, Judge James L. Dennis, Judge Edward C. Prado and Judge Jennifer W. Elrod, Voting against en banc rehearing were: Chief Judge Edith H. Jones, Judge Carolyn Dineen King, Judge E.

Grady Jolly, Judge W. Eugene Davis, Judge Emilio M, Garza, Judge Edith B. Clement, Judge Priscilla R. Owen, Judge Leslie H, Southwick, and Judge Catharina Haynes. Upon the filing of this order, the clerk shall issue the mandate forthwith. See FED. R.APP. P. 41(b). DENNIS, Circuit Judge, dissenting: I respectfully dissent from the denial of rehearing en banc. As my panel dissent explains, United States v.

Pack, 612 F.3d 341, 362-68 (5th Cir.2010) (Dennis, J., dissenting), this case was erroneously decided by the district court, erroneously affirmed by the panel majority, and should have been vacated and revisited en banc for three reasons: (1) the district court incorrectly ruled that the defendant lacked Fourth Amendment standing and that the evidence was not a fruit of the poisonous tree; (2) the panel should not have reached the question of reasonable suspicion, because the trial judge erroneously held that the defendant lacked standing and pretermitted that issue, and consequently there are no factual findings below on which the panel could have based such a finding; and (3) the panel incorrectly concluded that United States v.

Brigham, 382 F.3d 500 (5th Cir.2004) (en banc), modified United States v. Dortch, 199 F.3d 193 (5th Cir.1999). The panel majority’s decision to revoke its statements that Brigham overruled Dortch does not cure this last error. Dortch continues to establish that it was unreasonable for the officer in the instant case to detain Pack and the driver for an extended period and beyond the time needed to issue a warning, the basis for the initial traffic stop. I respectfully dissent.

In 2009, the court decided to begin identifying the judges voting for or against en banc rehearing where a poll is taken and the request for en banc rehearing is denied.