Opinion
No. 02-40004-01-SAC.
April 23, 2002
MEMORANDUM AND ORDER
Defendant has been charged by indictment with one count of possession with the intent to distribute approximately 236 pounds of a mixture or substance containing a detectable quantity of marijuana. This case comes before the court on defendant's motion to suppress evidence.
The events in this case arise from a traffic stop by Kansas troopers. Defendant did not challenge the legality of the initial stop until after the evidentiary hearing in this matter. Defendant now raises four grounds for suppression: 1) the initial stop of defendant's vehicle was without probable cause; 2) defendant's detention and questioning about his travel plans exceeded the permissible scope of the traffic stop; 3) defendant's detention while awaiting the arrival of a drug detection dog was not justified by reasonable suspicion of illegal activity; and 4) the search of the vehicle was made without probable cause because the "canine odor detection" was not sufficiently reliable to justify the search.
FACTS
The facts in this case are few and largely uncontested. On February 13, 2001, at approximately 9:30 a.m., Kansas Highway Patrol Troopers Jimerson and Ziegler were in a patrol car westbound on Interstate 70 in Dickinson County, Kansas. Upon observing an eastbound Ford Explorer whose driver had his head back on the headrest, the two turned around to follow the vehicle, believing the driver might be tired or sleepy. Within one and a half miles thereafter, Trooper Ziegler observed the vehicle cross the fog line of the road once and weave within its lane of travel several times, so stopped the vehicle. Troopers noticed that the vehicle, which bore a Missouri plate, appeared to be weighed down in back.
Trooper Ziegler, who was a new trooper still in his field training observation period, approached the vehicle, saw that the driver was alone in the vehicle, and initiated the contact with the defendant driver. Trooper Ziegler noticed that defendant wore a pressed shirt, a tie and dress pants, but that his shoes appeared "very old and beaten up" and thought that his shoes appeared out of place with the rest of his clothing. Upon speaking to defendant, Trooper Ziegler noticed that defendant had yellow-stained teeth and red, glossy eyes. Defendant appeared to Trooper Ziegler to be overly friendly, in offering as much information as possible, and by seemingly wanting to get rid of the troopers as quickly as possible.
Defendant produced his driver's license and the rental agreement for the vehicle, and was advised why he had been stopped. Trooper Ziegler asked defendant about his travel plans, and defendant stated that he was a computer salesman from New York, had flown to St. Louis where he had rented the vehicle for a business trip to Denver, and was returning to St. Louis to fly back to New York. The trooper, realizing that it was about a 13 hour drive from St. Louis to Denver, asked defendant why he had flown only to St. Louis instead of to Denver, but got no answer. Trooper Ziegler observed three "very large suitcases" in the back area of the vehicle which he believed to be too large to lug through an airport, and to be unusually large for a computer salesman. Trooper Ziegler additionally believed that the discoloration of defendant's teeth was inconsistent with the usual appearance or hygiene of a salesperson, and that it was unusual for a person to drive 12 or 13 hours wearing a tie.
The record is ambiguous as to whether this conversation regarding travel plans occurred at this point, or occurred after Trooper Ziegler returned defendant's documentation to him and told him he was free to leave, or occurred at both times.
Trooper Ziegler smelled a "strong odor" of air freshener coming from the vehicle, which he thought was unusual for a rental car. The trooper noticed nothing in the vehicle which would have required air freshener and knew, due to his then recent training, that the air freshener was often used to mask the odor of controlled substances. Trooper Ziegler noticed that defendant initially appeared "very agitated," that his breathing was quick and rapid, that he avoided eye contact at the beginning of their conversation, and that he was nervous, with his hands shaking. Trooper Ziegler testified that defendant continued to display nervousness throughout the entire length of their encounter and never relaxed after receiving a warning, as most people do.
After Trooper Ziegler determined that the vehicle was properly rented by defendant, that his drivers license was his own, and that he had no warrants outstanding, he returned defendant's license and rental papers to him and issued a warning ticket. Trooper Ziegler then told defendant that was all he had for him, then immediately asked if defendant would answer additional questions. Defendant agreed, and was soon asked for consent to search his vehicle, which defendant denied. Troopers advised defendant they were calling for a drug detection dog, and that although defendant was free to leave, the vehicle had to stay.
Approximately 15 minutes later, the canine unit arrived. The canine alerted to the three cases in the back of the vehicle. The troopers opened the cases and found therein approximately 236 pounds of marijuana, which form the basis for the present charge.
ANALYSIS
A. Initial Stop
As the Tenth Circuit established in United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995), cert. denied, 518 U.S. 1007 (1996):
[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. It is irrelevant, for purposes of Fourth Amendment review, whether the stop in question is sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop.
Although defendant urges the court to require probable cause, defendant concedes that reasonable suspicion is sufficient in this circuit. The court's sole inquiry is thus whether this particular officer had reasonable suspicion that this particular motorist violated "any one of the multitude of applicable traffic and equipment regulations" of the jurisdiction. See United States v. D'Armond, 65 F. Supp.2d 1189 (D.Kan. 1999).
Trooper Ziegler testified that he followed the vehicle because he believed the driver may be tired, but did not stop the vehicle until he observed that it crossed the fog line. Trooper Ziegler additionally testified on cross examination that he stopped the defendant, and told the defendant he had stopped him, because his vehicle failed to maintain a lane when it crossed the fog line. No testimony was offered that the vehicle did not cross the fog line. Failing to maintain a lane is among the multitude of applicable traffic and equipment regulations of the state of Kansas. See K.S.A. § 8-1522. The court thus finds that the initial stop was valid, and that its validity is not endangered by the fact that the trooper may have had other subjective motives for wanting to effect a stop. See Whren v. United States, 517 U.S. 806, 813 (1996); Botero-Ospina, 71 F.3d at 787.
B. Detention
A routine traffic stop is more analogous to an investigative detention than a custodial arrest. United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). Such stops are analyzed under the principles developed for investigative detentions set forth in Terry v. Ohio, 392 U.S. 1 (1968). See id. To determine the reasonableness of an investigative detention, the court makes a dual inquiry, asking first "whether the officer's action was justified at its inception," and second "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20.
1. Scope of Stop — Inquiry Regarding Travel Plans
Defendant asks this court to rule that an officer conducting a routine traffic stop may not ask questions about travel plans, even if the questioning does not extend the normal length of the stop, unless the officer has reasonable suspicion of illegal activity. In support of this proposition, defendant cites United States v. Holt, 264 F.3d 1215, 1230 (10th Cir. 2001) (referred to by the Tenth Circuit as Holt II).
Holt II does state that an officer conducting a routine traffic stop may not ask questions unrelated to the purpose of the stop, even if the questioning does not extend the normal length of the stop, unless the officer has reasonable suspicion of illegal activity. However, defendant's assertion that travel plans are generally unrelated to a traffic stop is inaccurate.
As the Tenth Circuit has clarified, Holt II does not mean that officers cannot ask about travel plans, as such questions typically fall within the scope of a traffic stop:
Holt II stands for the proposition that a "traffic stop based on probable cause must be judged by examining both the length of the detention and the manner in which it is carried out." Holt II, 264 F.3d at 1230. Mr. Williams does not argue that the questioning in this case increased the duration of the stop, but claims that questions related to his travel plans were beyond the scope of the stop and thus unreasonable even after Holt II. We are not persuaded, however, that in this case the questioning was outside the scope of the stop. When directly confronted with the issue, we have repeatedly held (as have other circuits) that questions relating to a driver's travel plans ordinarily fall within the scope of a traffic stop. See West, 219 F.3d at 1176 (stating that "questions about travel plans are routine and `may be asked as a matter of course without exceeding the proper scope of a traffic stop'") (quoting United States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996)); see also United States v. Santana-Garcia, 264 F.3d 1188, 1192-93 (10th Cir. 2001) (quoting West, 219 F.3d at 1176); United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989); United States v. Hill, 195 F.3d 258, 268 (6th Cir. 1999), cert. denied, 528 U.S. 1176, 120 S.Ct. 1207, 145 L.Ed.2d 1110 (2000); United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th Cir. 1999), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175, 145 L.Ed.2d 1083 (2000). Though such questions do typically fall within the scope of a traffic stop, citizens' legitimate privacy interests are protected in that they are not legally obligated to answer such questions, nor can an officer compel an answer to these routine questions. See $404,905.00, 182 F.3d at 647 n. 2 (citing Terry, 392 U.S. at 34, 88 S.Ct. 1868 (White, J., concurring)). In addition, a motorist's refusal to answer routine questions may not furnish a basis for arrest, "although it may alert the officer to the need for continued observation." Terry, 392 U.S. at 34, 88 S.Ct. 1868 (White, J., concurring).United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001).
In addition to the teaching in Williams that questions about travel plans typically fall within the scope of a traffic stop, the facts show that Trooper Ziegler's questioning of defendant about his travel plans in this case were within the scope of the stop. Defendant was stopped because troopers believed that defendant may be tired and had observed defendant weave both within and outside his lane of traffic. Determining how long defendant had been driving and how much longer he intended to drive were questions well within the scope of this stop.
2. Reasonable Suspicion to Detain
Defendant next asserts that troopers had no specific, articulable facts sufficient to provide reasonable suspicion for his detention while awaiting the arrival of the canine drug unit.
During a routine traffic stop, an officer may request a driver's license and vehicle registration, run a computer check, and issue a citation. Hunnicutt, 135 F.3d at 1349. In the absence of the particular individual's valid consent, an officer may expand an investigative detention only if there exists an "objectively reasonable and articulable suspicion" that criminal activity has occurred or is occurring. Id. Here, it is not alleged that defendant gave the troopers consent to the detention. Thus the court must determine whether sufficient reasonable suspicion existed to support defendant's detention beyond the time required for the initial stop. See United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997), rev'd on other grounds, 106 F.3d 942 (10th Cir. 1997).
"Proof of "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, 2002 WL 46773, at *5 (U.S. Jan. 15, 2002.)." United States v. Alvarez-Becerra, ___ F.3d ___, 2002 WL 199166 (10th Cir. Feb 08, 2002) (Table). Whether an investigative detention is supported by an objectively reasonable suspicion of illegal activity is determined by the totality of the circumstances. Arvizu, 122 S.Ct. 744 (rejecting a "divide-and-conquer analysis" by which the court evaluated and rejected several individual and innocuous factors in isolation from each other); United States v. Jones, 44 F.3d 860, 872 (10th Cir. 1995). In doing so, the court judges the officer's conduct "in light of common sense and ordinary human experience," United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997), and accords deference to an officer's ability to distinguish between innocent and suspicious actions. Wood, 106 F.3d at 946. Reasonable suspicion, however, may not be based upon inchoate suspicions and unparticularized hunches. United States v. Sokolow, 490 U.S. 1, 7 (1989) (holding that factors which by themselves were "quite consistent with innocent travel" collectively amounted to reasonable suspicion). Aware of the Supreme Court's recent admonition in Arvizu not to parse too finely the factors upon which reasonable suspicion may depend, the court examines the totality of the circumstances.
Trooper Ziegler testified to the facts leading him to believe that defendant was extremely nervous and that his nervousness did not diminish throughout the entire stop. The Tenth Circuit has consistently held that nervousness is "of limited significance" in determining whether reasonable suspicion exists. See United States v. Wald, 216 F.3d 1222, 1227 (10th Cir. 2000). Extreme and continued nervousness, however, "is entitled to somewhat more weight." United States v. West, 219 F.3d 1171, 1179 (10th Cir. 2000). Although "[n]ervousness alone cannot support reasonable suspicion of criminal activity," United States v. Salzano, 158 F.3d 1107, 1113 (10th Cir. 1998) (citing United States v. Fernandez, 18 F.3d 874, 880 (10th Cir. 1994)), it is one factor that the court should consider in reviewing the totality of the circumstances. See West, 219 F.3d at 1179.
Unusual travel plans or inconsistencies in information provided to an officer may contribute to reasonable suspicion of criminal activity. See Wood, 106 F.3d at 946-47; United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir.), cert. denied, 115 S.Ct. 1721 (1995); United States v. Sanchez-Valderuten, 11 F.3d 985, 989 (10th Cir. 1993). Defendant's statement that he was a salesman from New York, but had flown to St. Louis, rented a vehicle in St. Louis to drive to Denver then back to St. Louis, was suspicious to Trooper Ziegler, who knew the drive from St. Louis to Denver was approximately 13 hours each way. Believing these travel plans to be unusual, Trooper Ziegler asked defendant about them, but was given no explanation whatsoever for driving this distance. The unusual nature of these travel plans for a businessman, coupled with defendant's lack of explanation when given an opportunity to do so, contributes greatly to reasonable suspicion of criminal activity.
Further, defendant's personal appearance, particularly that of his teeth, did not appear to the trooper to be consistent with the hygiene or "very clean appearance" of a typical salesperson. The manner in which defendant was dressed also adds to the mix. Defendant was wearing a dress shirt and tie, which the trooper found to be unusual for one traveling 13 hours in a car. Additionally, the trooper believed that defendant's dress attire which could be viewed by a passing law enforcement officer did not match his shoes, which were not dress shoes and were "very worn." Trooper Ziegler believed that this attire showed an attempt to deceive persons such as law enforcement officers who could see him driving, although he recognized that persons often wear a pair of comfortable shoes for driving. These personal appearance factors weigh somewhat, although not greatly, in the assessment of reasonable suspicion.
The Tenth Circuit has consistently held that the scent of air freshener is properly considered as a factor in a probable cause or reasonable suspicion analysis. See United States v. Anderson, 114 F.3d 1059, 1066 (10th Cir. 1997); United States v. Leos-Quijada, 107 F.3d 786, 795 (10th Cir. 1997); United States v. Alvarez, 68 F.3d 1242, 1246 (10th Cir. 1995) (McKay, concurring), cert. denied, 517 U.S. 1143 (1996); United States v. Hernandez-Rodriguez, 57 F.3d 895, 898 (10th Cir. 1995); United States v. Stone, 866 F.2d 359, 362 (10th Cir. 1989); West, 219 F.3d at 1179. Here, Trooper Ziegler testified that he detected a strong odor of air freshener in the vehicle prior to detaining defendant, and that he was aware air freshener is often used to mask the smell of drugs. Trooper Jimerson additionally testified that he smelled air freshener in the vehicle when he drove it to the highway patrol office. Although no air freshener container was found during the search of the vehicle, the court finds the troopers to be credible, and considers the presence of air freshener as one factor in the reasonable suspicion analysis.
That the car appeared to be heavily loaded can also contribute to a reasonable suspicion supporting a brief investigation.
Finally, the fact that the car appeared to be heavily loaded can contribute to a reasonable suspicion supporting a stop and brief investigation. See United States v. Sharpe, 470 U.S. 675, 683 n. 3, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (noting that one of the facts giving rise to reasonable suspicion to stop a truck was that it "appeared to be heavily loaded").
United States v. Meyer, 20 Fed. Appx. 808, 815-16, 2001 WL 1219394 (10th Cir. Oct 10, 2001). Trooper Ziegler estimated that the vehicle was visibly sagging in the back "maybe three to four inches . . . Nothing dramatic, but you could tell the back end wasn't level with the front."
Defendant urges the court to discredit this factor, given the testimony of Richard Schurle. Schurle is a shop foreman for a Ford dealership and works daily with Ford Explorers and testified that he is "somewhat" familiar with their load bearing capacity. He testified that a weight of 300 pounds in the rear of a 2001 Explorer, such as that driven by the defendant in this case, would probably produce a sag of one inch or so, and that a weight of 400 pounds would produce a sag of one to one and a half inches. Mr. Schurle based this latter conclusion upon his daily work with Explorers, and the fact that he had an unspecified number of employees step onto the bumper of a 2001 Ford Explorer in his shop. The conclusion to be drawn from Mr. Schurle's testimony is that 236 pounds of marijuana would not produce a sag of three to four inches in defendant's Explorer. No testimony was offered, however, as to the weight of the three large cases which contained the marijuana, the condition of the rental Explorer, or whether any other objects were in the rear of the vehicle.
Although Mr. Schurle's testimony casts some doubt on the Trooper Ziegler's estimation that the Ford might have been sagging by several inches, it confirms his assessment that the vehicle was in fact visibly sagging, and does not dispute his testimony that he could see by looking at the vehicle that it was heavily loaded.
Factors innocuous in themselves must be viewed in totality of the circumstances, and not viewed in isolation from each other. Here, it was reasonable for Trooper Ziegler to suspect that defendant was engaged in criminal activity based upon defendant's unexplained and unusual travel plans for a businessman, the strong smell of air freshener, the heavily loaded appearance of the vehicle, the inconsistencies between defendant's dress and appearance and that of a typical businessman, defendant's demeanor including his continuing nervousness, and the presence of three large suitcases. Although each of the factors alone may be susceptible to innocent explanation, and some factors are more probative than others, taken together, they suffice to form a particularized and objective basis for detaining defendant's vehicle a brief period of time until the drug detection dog arrived.
C. Probable Cause to Search
Defendant next summarily contends that there was no probable cause to search the vehicle because the canine which smelled the marijuana was not sufficiently reliable. The government not only provided the defendant with discovery including the certifications of the dog handler and the dog and the dog's training records, but also called the dog handler to testify at the evidentiary hearing on this matter.
Bryan F. Grabatt, the dog handler called by the government, testified that Bruno, the dog in question, was properly certified for the year 2001 in which this stop occurred, see Gvmt. Exhs. 1 2, and that Bruno's training records (Gvmt. Exh. 3) were accurate. Those records of Bruno's performance show that Bruno was 95.6% reliable in training situations and 94.5% reliable in work situations, producing a combined reliability total of 95.3%. Those same records show that Bruno alerted when no drugs were found .2% in training situations and .7% in work situations, and failed to find drugs which were in fact present 4.2% in training situations and 4.8% in work situations. The trainer further testified that Bruno was reliable on the date defendant was stopped and that there was nothing in either Bruno's environment or relative to his physical condition which would have adversely affected his reliability. The trainer further testified to the facts regarding this particular dog sniff, including Bruno's active alert to the rear of defendant's vehicle. The government thus met its burden to show that the dog used in this search was properly trained and certified and was thus reliable.
Defendant questions only the use of these, and apparently any, statistics, calling them a "gross distortion of the science of probability and statistics." (Dk. 29, p. 13.) The court has reviewed defendant's queries and his hypothetical illustration, but finds no evidence seriously undermining this dog's reliability. Thus there is no reason to find that probable cause was lacking. See United States v. Ludwig, 10 F.3d 1523, 1527-28 (10th Cir. 1994) (finding that "a dog alert usually is at least as reliable as many other sources of probable cause and is certainly reliable enough to create a "fair probability" that there is contraband.").
The parties agree that the smell of drugs, detected by experienced and trained police and drug detection dogs, gives probable cause. See United States v. Souza, 223 F.3d 1197, 1206 (10th Cir. 2000) ("the box was alerted to by a certified narcotics dog, which is itself sufficient to create probable cause"); United States v. Blaze, 143 F.3d 585, 592 (10th Cir. 1998) (stating that "[o]nce a dog alerts to a container, probable cause exists to open and search it"); United States v. Ludwig, 10 F.3d 1523, 1527-28 (10th Cir. 1993) (holding that a dog alert to the trunk of a car by itself constitutes probable cause to search the trunk). The drug alert by Bruno in this case provided probable cause for the search of defendant's vehicle which disclosed the marijuana.
IT IS THEREFORE ORDERED that defendant's motion to suppress (Dk. 15) is denied.