Opinion
No. A-11-774.
06-26-2012
STATE OF NEBRASKA, APPELLEE, v. PAUL C. RIEDEL, APPELLANT.
Mark E. Rappl for appellant. Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
Mark E. Rappl for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
MOORE and PIRTLE, Judges, and CHEUVRONT, District Judge, Retired.
CHEUVRONT, District Judge, Retired.
INTRODUCTION
Paul C. Riedel appeals from his conviction for possession of a controlled substance with intent to deliver and no drug tax stamp, alleging that the district court erred in overruling his motion to suppress the evidence obtained as a result of his continued detention beyond the initial traffic stop. Although individually explainable by innocent behavior, the five factors identified by the district court, when combined, amount to a reasonable suspicion of criminal activity. Therefore, we affirm.
BACKGROUND
Following an initial traffic stop for following too closely, Nebraska State Patrol Trooper Robert Pelster suspected Riedel was carrying marijuana in his vehicle and detained Riedel until a drug detection canine unit arrived. During the canine sniff, the dog alerted, and approximately 49.3 pounds of marijuana were discovered in a subsequent search of Riedel's vehicle. After being charged with possession of a controlled substance with intent to deliver and failure to affix a drug tax stamp, Riedel filed a motion to suppress all evidence obtained as a result of his detention, alleging that he committed no traffic violation which would justify the initial traffic stop and that the prolonged detention was not justified by reasonable suspicion.
The district court held a hearing on the motion to suppress in March 2011. Pelster was the sole witness to testify. The video recording from the camera in the patrol car was entered into evidence and viewed during his testimony. The video recording and Pelster's testimony established the events leading to Riedel's arrest as follows:
On July 29, 2010, at approximately 12:40 p.m., Pelster observed a white Cadillac following too closely behind a semi-truck on Interstate 80 west of Lincoln, Nebraska. Pelster initiated a traffic stop, identified Riedel as the driver and sole occupant of the Cadillac, and determined that the vehicle was a rental, for which Riedel had paid $1,400 not including fuel. While reviewing Riedel's license and registration, Pelster questioned Riedel about the purpose of his travel. Riedel responded that he was having a "mid-life crisis" and was driving across the country from California to Virginia to "get his head straight." He told Pelster that he had flown to Oakland, California, on July 26, to meet one of his brother's friends who could show him around. According to Riedel, he spent 2 days in California, during which time he drove to Mendocino to see the coast and stayed at a hotel in Oakland. Upon further questioning, Riedel stated that he began to drive home to Virginia on July 28 and spent the previous night in Cheyenne, Wyoming.
At approximately 12:44 p.m., Pelster asked Riedel to sit in the patrol car while he issued a warning. Pelster called in for a records check at 12:48 p.m., and at 12:50 p.m., the report came back indicating that Riedel's license was valid and that he had no criminal record. Pelster continued to question Riedel about the reasons for his trip and what he did in California. At one point, Pelster observed that he could see Riedel's heart beating through his shirt and asked if he was feeling alright. Riedel responded that he was nervous and that he was seeing a psychiatrist and taking medication for anxiety.
Pelster issued a warning at 12:56 p.m., but continued to question Riedel. Riedel said that he was not transporting anything illegal and that there were no guns or drugs in the vehicle. When asked what was in the trunk, Riedel responded that there was "a bunch of luggage." At 12:57 p.m., Pelster asked for consent to search the vehicle. Riedel refused to give consent. At 12:58 p.m., Pelster asked whether Riedel would mind waiting for a drug detection canine unit to arrive. Riedel said that he would "rather not." Pelster then informed Riedel that he was being detained and requested a drug detection canine unit at 12:59 p.m.
Due to some officers being on vacation or off duty, Pelster had difficulty locating an available drug detection canine unit. When the drug detection canine unit arrived at approximately 1:52 p.m., the dog was immediately deployed, and at 1:55 p.m., it alerted to the scent of drugs near the trunk of the vehicle. At 1:56 p.m., Pelster informed Riedel, who was still sitting in the patrol car, that he had probable cause to search the vehicle. Pelster and several other officers began to search the vehicle and uncovered a significant amount of marijuana in the trunk. Pelster read Riedel his Miranda rights at 2:11 p.m. and subsequently placed him under arrest.
At the hearing on the motion to suppress, Pelster testified that he made the decision to detain Riedel "[b]ased on multiple indicators of criminal activity when taken as a totality." Pelster noted that Riedel was coming from a "transportation hub" for high-grade marijuana, that Riedel's trip was not cost effective, and that "his story did not make any sense." Pelster testified that he considered the amount of luggage Riedel claimed was in the vehicle to be inconsistent with Riedel's short stay--2 days--in California. Pelster also found it suspicious that Riedel had two cellular telephones, which Pelster testified was common in vehicles carrying drugs or contraband. Finally, Pelster noted that Riedel exhibited "[e]xtreme nervousness that did not subside throughout the entire traffic stop," including a "rapid heart rate, labored breathing, and . . . shaking hands."
After reviewing the evidence, the district court issued an order stating its findings and overruling Riedel's motion to suppress. The court concluded that there was "a reasonable suspicion of criminal activity based on articulable facts," explaining its reasoning as follows:
The indicators identified by [Pelster], in isolation, certainly would not rise to [the level of reasonable suspicion]. However, when combined [and] viewed through the lens of an experienced law enforcement officer, it is clear [Pelster] had a well-founded and reasonable suspicion of criminal activity. Each of these facts considered in isolation could be construed as the innocent behavior of a cross-country traveler. However, the circumstances, taken in their entirety, support a reasonable suspicion of illegal activity. [Pelster] articulated the facts and indicators of behavior that led him to the conclusion. . . . [Pelster] had more than a hunch and was justified in continuing the investigation and detention.The district court also concluded that the length of Riedel's detention was reasonable, stating that it found "nothing in the facts that would lead to the conclusion [that Pelster] was dilatory or did not act promptly in obtaining the drug canine." The court made no finding as to the legality of the initial traffic stop.
The case proceeded to a stipulated bench trial on June 30, 2011. Riedel renewed his objection to the receipt of evidence seized as a result of his prolonged detention, which the district court overruled. The court found Riedel guilty of possession of a controlled substance with intent to deliver and failure to affix a drug tax stamp and subsequently sentenced him to 18 to 36 months' imprisonment and 12 to 12 months' imprisonment, respectively, to be served concurrently.
Riedel timely appeals.
ASSIGNMENT OF ERROR
Riedel alleges, restated, that the district court erred in overruling his motion to suppress, thus allowing into evidence the evidence gathered by law enforcement after the continued detention of Riedel beyond the initial traffic stop without reasonable suspicion. He no longer questions the legality of the initial traffic stop.
STANDARD OF REVIEW
In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012). Regarding historical facts, an appellate court reviews the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination. Id.
When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress. State v. Ball, 271 Neb. 140, 710 N.W.2d 592 (2006).
ANALYSIS
Because Riedel no longer contests the legality of the initial traffic stop for following too closely, the only question before this court is whether his continued detention awaiting arrival of the drug detection canine unit was based on reasonable suspicion. In order to expand the scope of a traffic stop and continue to detain the motorist for the time necessary to deploy a drug detection dog, an officer must have a reasonable, articulable suspicion that a person in the vehicle is involved in criminal activity beyond that which initially justified the interference. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).
Reasonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and unparticularized hunch, but less than the level of suspicion required for probable cause. Id. Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends on the totality of the circumstances. Id. Indeed, factors that would independently be consistent with innocent activities may nonetheless amount to reasonable suspicion when considered collectively. State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011). Consequently, reasonable suspicion must be determined on a case-by-case basis. Id.
In the instant case, Pelster testified that he decided to detain Riedel pending arrival of a drug detection canine unit based on five factors that, when combined, indicated to him that Riedel was probably carrying marijuana in his vehicle: (1) travel originating in a location known for drug activity, (2) the illogical nature of Riedel's trip, (3) the amount of luggage supposedly in the trunk, (4) Riedel's nervousness, and (5) the possession of two cellular telephones. The district court also concluded that these factors taken in their totality gave rise to a reasonable suspicion of criminal activity.
As will become obvious in our analysis below, each of the factors identified by Pelster are weak indicators of criminal activity individually and have been found by courts to be indicative of criminal activity only when accompanied by other, more substantially suspicious factors. But, recalling that reasonable suspicion depends on a totality of the circumstances, we must consider these factors collectively and not individually. When thus viewed, we agree with the district court that there was reasonable suspicion to justify Riedel's continued detention awaiting arrival of the drug detection canine unit. Travel Originating in Location
Known for Drug Activity.
Pelster testified that he was suspicious of Riedel because he was traveling from northern California, which Pelster identified as a "transportation hub" for high-grade marijuana. Travel originating in a location known for drug activity is not a factor that has been discussed by Nebraska courts, but the Eighth Circuit has found it to be of limited value in determining reasonable suspicion. In U.S. v. Beck, 140 F.3d 1129, 1137-38 (8th Cir. 1998), the Eighth Circuit explained its hesitation to give weight to the fact that a vehicle was traveling from a location of known drug activity:
Because millions of law-abiding Americans reside in California and travel, mere residency in and travel from the State of California means the officer's "source state" factor must be considered in this context. Innumerable other Americans travel to that state or through there for pleasure or lawful business. Clearly, the vast number of individuals coming from that state must relegate this factor to a relatively insignificant role. Indeed, [the officer] conceded at the suppression hearing that interstate motorists have a better than equal chance of traveling from a source state to a demand state. . . . We conclude, in the circumstances of this case, that no specific, articulable basis warranting a reasonable belief that [the defendant's] Buick contained contraband can be gleaned from the mere fact that [the defendant's] Buick was registered and licensed in California. Here, this circumstance is an extremely weak factor, at best, to suspect criminal activity.A similar position has been taken by the Sixth, Seventh, and Tenth Circuits. See, e.g., U.S. v. White, 584 F.3d 935, 951-52 (10th Cir. 2009) (arguing that "[b]ecause law enforcement officers have offered countless cities as drug source cities and countless others as distribution cities . . . the probativeness of a particular defendant's route is minimal"); U.S. v. Townsend, 305 F.3d 537, 543 (6th Cir. 2002) (agreeing that there are "simply too many source and destination cities . . . to make the entirely common trip from [a source city] to [a destination city] suspicious"); U.S. v. Jerez, 108 F.3d 684, 693 (7th Cir. 1997) (noting that license plate from source state is not enough by itself to constitute reasonable suspicion because it is "true of innocent travelers").
Accordingly, we find this factor to be of minimal individual weight in the case at bar. Given Riedel's willingness to admit that he had been in California and his desire to see the coast, the mere fact that Riedel was traveling from northern California is not a factor that weighs in favor of finding reasonable suspicion of criminal activity when viewed alone.
However, when this factor is combined with the remaining four factors, especially the illogical and costly nature of Riedel's trip, the fact that Riedel was traveling in a rental car from a major source city of high-grade marijuana becomes suspicious. Indeed, although the Eighth Circuit has generally found travel originating in a "source state" to be of limited weight in the reasonable suspicion analysis, it has also listed this factor as one among many that, when considered together, led to a conclusion that there was reasonable suspicion to justify continued detention. See U.S. v. Fuse, 391 F.3d 924 (8th Cir. 2004). Such is the case with Riedel.
Illogical Nature of Trip.
Pelster found Riedel's travel plans not to be cost effective and said that they "did not make any sense." Pelster specifically noted the fact that Riedel paid $1,400 for the rental car, not including fuel, and that he "travelled essentially all the way across the country on a one-way flight to visit a friend of his brother's [sic] who he didn't appear to know very well at all."
The illogical nature of an individual's travel plans can be a factor that forms a basis for reasonable suspicion, but Nebraska courts have generally not considered this factor unless accompanied by other circumstances indicative of drug activity. For example, in State v. Nelson, 282 Neb. 767, 781, 807 N.W.2d 769, 782 (2011), the Nebraska Supreme Court listed the fact that the defendant "flew out and drove back" as one of numerous factors that created reasonable suspicion. In its analysis, the court stated that "evidence that a motorist is returning to his or her home state in a vehicle rented from another state is not inherently indicative of drug trafficking when the officer has no reason to believe the motorist's explanation is untrue." Id. at 780, 807 N.W.2d at 781. It went on to explain that "a court may nonetheless consider this factor when combined with other indicia that drug activity may be occurring, particularly the occupant's contradictory answers regarding his or her travel purpose and plans or an occupant's previous drug-related history." Id. at 780, 807 N.W.2d at 781. Similarly, in State v. Howard, 282 Neb. 352, 365, 803 N.W.2d 450, 463 (2011), the court found that the illogical nature of the defendant's trip was a "prime factor" in the reasonable suspicion analysis. In that case, the defendant was a passenger in a vehicle rented by a third party in Michigan and driven by an individual not identified as an authorized driver in the rental agreement. The defendant and the other occupants of the vehicle had driven between 25 and 28 hours straight through to Arizona, stayed less than 1 day, and were driving straight back. They were towing a camper rented by the defendant in Michigan, but had yet to utilize the camper. Based on these facts, the court found that there was no "reasonable, innocent explanation for the unusual travel plans." Id. at 363, 803 N.W.2d at 462. The court also weighed six other factors in its analysis, including the defendant's criminal history. See State v. Howard, supra.
Consistent with State v. Nelson, supra, and State v. Howard, supra, this court has reversed the finding of reasonable suspicion in cases where an individual offered a reasonable and innocent explanation for his or her travel plans and there were no other significant factors. In State v. McGinnis, 8 Neb. App. 1014, 608 N.W.2d 605 (2000), we reversed the district court's finding of reasonable suspicion based solely on the defendant's unusual travel plans and his nervousness. Like Riedel, the defendant in McGinnis flew to California, rented a car, and was driving across the country when he was stopped in Nebraska. As to the district court's conclusion that these travel plans justified a finding of reasonable suspicion, we stated:
While flying from one location then renting a vehicle to drive across the country may be indicative of criminal activity, there are equally innocent explanations of such conduct . . . . Furthermore, although rental vehicles are utilized by drug traffickers in order to circumvent the drug forfeiture laws, rental vehicles are also utilized by law-abiding citizens.Id. at 1031-32, 608 N.W.2d at 616. In addition, we noted that the defendant "had a valid driver's license and a vehicle properly rented in his name," both of which were facts that weighed against the finding of reasonable suspicion. Id. at 1031, 608 N.W.2d at 616. Likewise, in State v. Passerini, 18 Neb. App. 552, 564, 789 N.W.2d 60, 70 (2010), we held that
Finally, it is not criminal conduct to desire to drive across the United States in order to view the scenery. Just because the officer might have chosen a different route or particular mode of transportation to travel across the country does not make a different choice indicative of criminal activity. We do not think that even when coupled with [the defendant's] nervousness, [the defendant's] travel arrangement is enough to invoke reasonable suspicion that [he] had committed, was committing, or was about to commit a crime.
[t]he fact that [the defendant] was driving a rental vehicle is perfectly consistent with law-abiding activity, and furthermore, the matching names on the driver's license and rental agreement, coupled with the consistency of [the defendant's] story as to the timeframe of the trip and his plans to return to Reno should have dispelled, rather than created, further suspicion.
Like in State v. McGinnis, supra, and State v. Passerini, supra, and unlike in State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011), and State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011), Riedel presented a reasonable and innocent explanation for his travel plans. He explained that he was having a "mid-life crisis" and needed to clear his head, that he met up with his brother's friend because the friend could show him around the coast, and that he traveled to California mainly because he wanted to drive across the country. This story was consistent throughout Riedel's detention. Riedel had a valid driver's license, no criminal record, and documents showing a proper rental of the vehicle. As to the cost of the rental, Pelster admitted during his testimony that he never inquired about Riedel's financial situation. Thus, although expensive, the $1,400 rental vehicle could have been well within Riedel's financial means. In light of these circumstances, Pelster's opinion that Riedel's plans were not cost effective and "did not make any sense" was an insufficient basis for a finding of reasonable suspicion by itself.
Nevertheless, because probable cause is based on the totality of the circumstances, we find the illogical and costly nature of Riedel's trip to weigh in favor of a finding of reasonable suspicion when combined with the other four factors identified by Pelster.
Amount of Luggage.
Pelster testified that he found Riedel's statement that the trunk was filled with "a bunch of luggage" to be inconsistent with his short stay in California and, thus, suspicious. However, as Riedel was planning to drive back to Virginia from California after spending a few days there, his travel plans were not limited to 2 days. As Pelster admitted during his testimony, Riedel's trip would have lasted approximately a week. With this understanding of the length of Riedel's trip, the amount of luggage he was supposedly carrying was not sufficient in and of itself to create a reasonable suspicion of criminal activity.
We also note that the Fifth Circuit has held that the presence of luggage does not constitute reasonable suspicion. See U.S. v. Portillo-Aguirre, 311 F.3d 647, 660 (5th Cir. 2002) (stating that "[i]f we were to find that the mere presence of luggage in a vehicle stopped on an interstate highway constitutes reasonable suspicion of criminal wrongdoing and therefore justifies detention beyond the valid reason for the initial stop, we would be ignoring the simple reality that intrastate and interstate travelers carry luggage"). This factor does not weigh in favor of a finding of reasonable suspicion in the instant case when viewed individually.
But as was the case with the first two factors, when Riedel's admission that the trunk was filled with luggage is combined with the other factors, it lends support to a reasonable suspicion of criminal activity.
Nervousness.
Pelster stated that Riedel seemed very nervous throughout the traffic stop and that his nervousness did not subside. But trembling hands and other signs of nervousness may be displayed by innocent travelers who are stopped and confronted by an officer, and thus these observations do little to support a reasonable suspicion of criminal activity. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011). This factor weighs little, if at all, into the reasonable suspicion calculation. Id. We also note that Riedel told Pelster that he was seeing a psychiatrist for anxiety and actually took medication for anxiety during the traffic stop. The fact that Riedel was already predisposed to be anxious and nervous further decreases the already limited value of nervousness in this reasonable suspicion analysis.
That said, Pelster did state that in his experience, most individuals stopped by a law enforcement officer begin to calm down once they learn they will only be receiving a warning. Yet, in Riedel's case, his nervousness did not subside despite Pelster's assurance within the first minute of the traffic stop that he would issue a warning and "get him going." This continued nervousness gains suspicion under these circumstances. Furthermore, when viewed along with the other four factors identified by Pelster, Riedel's extreme nervousness weighs strongly in favor of reasonable suspicion.
Multiple Cellular Telephones.
The final factor noted by Pelster was the presence of two cellular telephones in Riedel's vehicle. While it has been considered as a factor in the reasonable suspicion analysis, the presence of multiple cellular telephones is generally considered a weak factor when not accompanied by other, more substantial factors. See, e.g., U.S. v. Bowman, 660 F.3d 338 (8th Cir. 2011) (existence of three cellular telephones listed as one of eight factors that together constituted reasonable suspicion); U.S. v. Lopez-Gutierrez, 334 Fed. Appx. 880, 883 (10th Cir. 2009) (fact that there were "more cell phones in the car than passengers" listed as one of six factors that together constituted reasonable suspicion); U.S. v. Townsend, 305 F.3d 537, 544 (6th Cir. 2002) (noting that presence of three cellular telephones was "weak" factor in reasonable suspicion analysis). Given the absence of any significant factors in the instant case and the prevalence of a single person having both a personal and a business cellular telephone in this day and age, the sole fact that Riedel had two cellular telephones does not support a finding that there was reasonable suspicion.
But, again, this was only one of five factors identified by Pelster as combining to form a reasonable suspicion that Riedel was engaged in criminal activity. Pelster testified that multiple cellular telephones are often present when a vehicle is carrying contraband. When combined with the excessive amount of luggage, the travel originating in a known source state, and the highly nervous driver, this fact lends weight to a finding of reasonable suspicion.
Conclusion as to Reasonable Suspicion.
All of the factors identified by Pelster as weighing in favor of reasonable suspicion are weak indicators of criminal activity when viewed individually and have been found by courts to be indicative of criminal activity only when accompanied by other, more substantially suspicious factors. But factors that would independently be consistent with innocent activities may nonetheless amount to reasonable suspicion when considered collectively. State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011). In Riedel's case, the innocent explanations for the suspicious circumstances of his trip become less believable and even less likely when we consider the totality of the circumstances. Therefore, viewing the factors in the instant case collectively, we find that they combine to create a reasonable suspicion of criminal activity.
If reasonable suspicion exists, the court must then consider whether the detention was reasonable in the context of an investigative stop, considering both the length of the continued detention and the investigative methods employed. State v. Louthan, 275 Neb. 101, 744 N.W.2d 454 (2008).
On the facts of this case, neither the length of Riedel's detention awaiting arrival of the drug detection canine unit--approximately 53 minutes--nor the investigative methods employed by Pelster were unreasonable. The Nebraska Supreme Court has upheld detentions of as long as 1 hour as being reasonable while waiting for the arrival of a drug detection canine unit. See State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011). But the length of the detention is not as important as the diligence with which the law enforcement officers involved pursued their investigation. See, id.; State v. Kehm, 15 Neb. App. 199, 724 N.W.2d 88 (2006). And, having reviewed the video of the traffic stop in the instant case, we find no lack of diligence or efficiency on the part of Pelster. Furthermore, the investigative method employed by Pelster--the canine sniff--"is generally considered to be minimally intrusive." State v. Howard, 282 Neb. at 365, 803 N.W.2d at 464. Accordingly, we affirm the finding of the district court that Riedel's detention was not unreasonable.
CONCLUSION
Because the factors identified by the district court combined to create a reasonable suspicion of criminal activity and because Riedel's detention was not unreasonable in length or method, the district court did not err in overruling Riedel's motion to suppress. Finding Riedel's assignment of error to be without merit, we affirm.
AFFIRMED.