UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick Fisher Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
June 18, 1996
TO: ALL RECIPIENTS OF THE CAPTIONED ORDER AND JUDGMENT
RE: 95-1415 USA v. Dove
June 14, 1996 by The Honorable John C. Porfilio
Please be advised of the following correction to the captioned decision:
The file stamp date is incorrect on all but the electronic copies. The correct date
of filing is June 14,1996.
Please make the appropriate correction to your copy.
Very truly yours,
Patrick Fisher, Clerk
Beth Morris
Deputy Clerk
UNITED STATES COURT OF APPEALS
Filed 6/14/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-1415
(D.C. No. 95-CR-115-01-Z)
LEVELL DOVE, JR., (District of Colorado)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before PORFILIO, HOLLOWAY, and LUCERO, Circuit Judges.
Levell Dove, Jr., was indicted for possession with intent to distribute cocaine and
aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Mr. Dove
entered a guilty plea conditioned upon his right to appeal the district court’s denial of his
motion to suppress evidence seized after a search of his van. He now appeals, and we
reverse.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
On the afternoon of March 21, 1995, Trooper Millard was driving west on I-70
when he saw a gray-blue Dodge van driving in the opposite direction. The van was not
exceeding the 65 m.p.h. speed limit, but Trooper Millard noticed there were dark objects
hanging from the rear view mirror of the van. Believing this to be a violation of a
Colorado statute,1 Trooper Millard made a U-turn, pursued the van, and signaled the
driver, Mr. Dove, to pull over.
After pulling over the van, Trooper Millard informed Mr. Dove he had been
stopped for obstruction of vision and asked for Mr. Dove’s driver’s license, registration,
and proof of insurance. Mr. Dove, who was traveling with two other companions,
handed Trooper Millard a California identification card and began to rummage in the
glove compartment for the other documents. Trooper Millard asked who owned the van,
and Mr. Dove, after some thought, informed the trooper the van belonged to a female
friend who was not traveling with him. Eventually, Mr. Dove was able to produce the
van’s registration but never located the proof of insurance card.
A computer check showed no outstanding arrest warrants or reports that the van
was stolen. The computer did show, however, Mr. Dove’s California license had expired.
Upon returning Mr. Dove’s identification card and registration, Trooper Millard notified
Mr. Dove of his expired driver’s license and asked him to step out of the van. The two
walked to the rear of the van where Trooper Millard asked Mr. Dove if anyone aboard
1
Colo. Rev. Stat. § 42-4-201(4) states: No vehicle shall be operated upon any highway
unless the driver’s vision through any required glass equipment is normal and unobstructed.
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had a valid driver’s license. After learning one of the passengers did indeed have a
license, Trooper Millard informed Mr. Dove that passenger would have to drive from
there. At that point, seven to ten minutes had elapsed since the initial stop.
After instructing Mr. Dove to allow the licensed passenger to drive, Trooper
Millard asked Mr. Dove if he had any drugs inside the van. Although Mr. Dove denied
the presence of drugs, Trooper Millard asked to search the van, and Mr. Dove granted
permission to do so. In the rear of the van, Trooper Millard found a leather coat
containing a plastic bag holding several ziplock bags, a razor blade, and a bent business
card, but no drugs.
About that time, Dave Kechter, an off-duty Denver Police Department narcotics
detective, pulled up in his personal vehicle with his narcotics dog and offered his
assistance. With Trooper Millard’s permission, Detective Kechter canvased the van a
second time with his narcotics dog. During this search, the dog “alerted” to the presence
of drugs located in an inside panel of the van. Trooper Millard then confiscated the drugs
and placed Mr. Dove and his two passengers under arrest.
Mr. Dove was subsequently indicted for possession of cocaine with intent to
distribute in violation of 21 U.S.C. § 841(a)(1) and aiding and abetting in violation of 18
U.S.C. § 2. He filed a motion to suppress tangible and oral evidence obtained after the
traffic stop. After the district court denied the motion orally from the bench, Mr. Dove
entered a guilty plea conditioned upon his right to appeal the district court’s denial of his
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motion to suppress. He was sentenced to the statutory minimum term of ten years’
imprisonment and five years’ supervised release.
On appeal, Mr. Dove contends the district court erred in denying his motion to
suppress. He argues, first, his continued detention after a routine traffic stop was not
supported by a reasonable suspicion or voluntary consent. Mr. Dove next asserts the
search exceeded the scope of his consent. Finally, Mr. Dove contends the initial stop was
pretextual. We reach only the first issue.
Mr. Dove argues his continued detention was not reasonably related to the traffic
violation that allegedly justified the initial stop or to the other traffic violations that were
subsequently discovered. He contends once Trooper Millard addressed the obstructed
window violation, ascertained the van was not stolen, and was satisfied a licensed driver
was present, the detention should have ended because there were no specific and
articulable facts which warranted shifting the focus of the intrusion from a traffic stop to
a drug investigation.
In reply, the government argues the continued detention was legal because Mr.
Dove voluntarily consented to the officer’s further questioning. The government argues
Mr. Dove’s consent was voluntary because at the time consent was given Trooper Millard
had returned Mr. Dove’s identification card and registration. Citing United States v.
Werking, 915 F.2d 1404 (10th Cir. 1990), the government asserts a reasonable person
would have concluded the traffic stop was over and he was free to leave.
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In denying Mr. Dove’s motion to suppress, the district court found the detention
following the stop was reasonable for five reasons. First, Mr. Dove had no driver’s
license or proof of insurance. Second, he did not own the van. Third, he could not
“readily” provide the name of the van’s owner. Fourth, he could not immediately find the
van’s registration. And fifth, there were at least three, and possibly more, air fresheners
in the van.
In reviewing the denial of a motion to suppress, this court must accept the factual
findings of the district court unless they are clearly erroneous. United States v. Botero-
Ospina, 71 F.3d 783, 785 (10th Cir. 1995) (en banc), petition for cert. filed, (U.S.
March 1, 1996) (No. 95-8121). However, the ultimate determination of reasonableness
under the Fourth Amendment is a question of law which we review de novo. Id.
A traffic stop is an investigative detention subject to the strictures of the Fourth
Amendment. Id. at 786. The test for the reasonableness of an investigative detention is
“whether the officer’s action was justified at its inception,” and “whether it was
reasonably related in scope to the circumstances which justified the interference in the
first place.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)). The issue here is
whether Mr. Dove’s subsequent detention was reasonably related in scope to Trooper
Millard’s reasons for instigating the stop.
We have held:
An officer conducting a routine traffic stop may request a driver’s license
and vehicle registration, run a computer check, and issue a citation. When
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the driver has produced a valid license and proof that he is entitled to
operate the car, he must be allowed to proceed on his way, without being
subject to further delay by police for additional questioning.
United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.) (citations omitted)
(quoting United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988), overruled on
other grounds by, Botero-Ospina, 71 F.3d 783 (10th Cir. 1995)), cert. denied, 114 S.Ct.
1862 (1994)). Further questioning is permissible, however, if “(1) during the course of
the traffic stop the officer acquires an objectively reasonable and articulable suspicion
that the driver is engaged in illegal activity or (2) the driver voluntarily consents to the
officer’s additional questioning.” United States v. Sandoval, 29 F.3d 537, 540 (10th Cir.
1994) (citations omitted). Neither of these exceptions is present here.
Trooper Millard could not have formed an objectively reasonable and articulable
suspicion Mr. Dove was engaged in unlawful activity. In determining whether an officer
could have formed a reasonable suspicion of criminal activity, we consider “the totality of
the circumstances,” United States v. Fernandez, 18 F.3d 874, 878 (10th Cir. 1994), and
we defer to “the ability of a trained law enforcement officer to distinguish between
innocent and suspicious actions.” United States v. Martinez-Cigarroa, 44 F.3d 908, 912
(10th Cir.) (Baldock, J., concurring), cert. denied, 115 S.Ct. 1386 (1995) (citing United
States v. Sokolow, 490 U.S. 1, 8 (1989)). An officer’s conduct is evaluated “in light of
common sense and ordinary human experience.” United States v. McRae, 81 F.3d 1528,
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1534 (10th Cir. 1996) (quoting United States v. King, 990 F.2d 1552, 1562 (10th Cir.
1993)).
Trooper Millard testified he suspected drug activity when he approached the van
the first time because he noticed a lot of air fresheners hanging throughout the vehicle and
detected their pleasant, but not overwhelming smell. Trooper Millard was also suspicious
because Mr. Dove did not own the vehicle and could not “readily” give him the name of
the registered owner of the van.2
Based on the facts here, we do not think Trooper Millard could have formed a
reasonable and articulable suspicion Mr. Dove was involved in some drug-related
activity. The strongest support for Trooper Millard’s alleged suspicion was the presence
of three or more air fresheners in the van. However, air freshener alone cannot provide a
reasonable suspicion that drugs are present. See, e.g., United States v. Alvarez, 68 F.3d
1242, 1245 (10th Cir. 1995) (McKay, J., concurring) (“Standing alone, air freshener is not
sufficient to justify a reasonable search for drugs.”), cert. denied, 116 S.Ct. 1436 (1996).
Air freshener coupled with other suspicious circumstances may support further
reasonable inquiry. See, id. (strong smell of air freshener and fact that large truck was
2
The district court mentioned two other factors supporting its conclusion the detention
was justified. However, Trooper Millard did not rely on these factors in formulating his
suspicion drugs were present in the van. Therefore, the district court erred in considering these
two factors. See, e.g., United States v. Lee, 73 F.3d 1034 (10th Cir. 1996) (citing Terry, 392
U.S. at 21, and stating a police officer must be able to point to specific and articulable facts
warranting continued detention).
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rented to merely transport clothes provides basis for subsequent investigation). However,
the additional “circumstances” in this case, namely, Mr. Dove’s inability to readily
provide the name of the van’s owner and the fact that he did not own the van, are not in
themselves suspect. Therefore, we hold Mr. Dove’s continued detention was not
supported by a reasonable and articulable suspicion.
The government does not address whether the continued detention was justified
based on Trooper Millard’s reasonable and articulable suspicion. Instead, the government
contends the detention was permissible because Mr. Dove consented to it. Whenever the
government relies on the consent of the defendant to validate a search, the government
bears the burden of proving the consent was “freely and voluntarily given.” Sandoval, 29
F.3d at 539 (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)).
Here, the government argues after Trooper Millard returned Mr. Dove’s California
identification card and registration Mr. Dove was free to leave. Therefore, any
subsequent questioning was completely voluntary. We have stated, after a driver in a
routine traffic stop has his documentation back, “questioning about drugs and weapons or
a request for voluntary consent to search may be ‘an ordinary consensual encounter
between a private citizen and a law enforcement official,’” United States v. Turner, 928
F.2d 956, 958 (10th Cir.) (quoting United States v. Werking, 915 F.2d 1404, 1408 (10th
Cir. 1990)), cert. denied, 502 U.S. 881 (1991), “so long as a reasonable person under the
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circumstances would believe he was free to leave or disregard the officer’s request for
information.” United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir. 1993).
Nevertheless, we have also indicated the return of a driver’s documentation does
not automatically render subsequent detention voluntary. In Sandoval, for example, we
held the driver’s subsequent detention was involuntary even though the police officer had
returned the driver’s license and registration. In that case, the officer asked the driver to
accompany him back to his patrol car. Once in the patrol car, the officer cautioned the
driver about the need to obey the speed limit and then handed over his license and
registration. In response to the driver’s query, “that’s it?,” the officer said, “No, wait a
minute,” and proceeded to ask the driver questions about his possible involvement with
drugs. The driver then granted permission for the officer to search his vehicle, and the
officer subsequently located the contraband.
In determining whether the consent was voluntary once the officer returned the
driver’s documentation, we held the appropriate analysis was whether the driver “ha[d] an
objective reason to believe that he was not free to end his conversation with the law
enforcement officer and proceed on his way.” Id., 29 F.3d at 540 (quoting Werking, 915
F.2d at 1408). The court then concluded the driver’s consent was not voluntary given the
“totality of the circumstances.”
In this case, as in Sandoval, the driver’s consent to further questioning was
involuntary. When Trooper Millard returned Mr. Dove’s documentation, the trooper
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contemporaneously asked Mr. Dove to step out of the car. Next, the trooper walked Mr.
Dove to the back of the van, questioned him about the presence of a licensed passenger,
and informed him the licensed passenger would need to drive. Trooper Millard then
asked Mr. Dove about drugs in the van. At no point during this exchange did the trooper
inform Mr. Dove he was free to leave. See United States v. Gregory, 79 F.3d 973, 979
(10th Cir. 1996) (“[I]n determining whether consent is voluntary when given following
the return of defendant’s documents, we look at such factors as whether the officer
informed the defendant that he was free to leave....”). Nor do we believe, based on the
totality of the circumstances, a reasonable person in Mr. Dove’s situation would have felt
free to do so.
McNeely and Werking are distinguishable. In neither case was the driver asked to
step outside his car after his documentation was returned. Instead, the police officers,
without any “overbearing show of authority,”Werking, 915 F.2d at 1409, merely asked a
few questions after returning their documentation. Unlike this case, nothing in McNeely
and Werking indicated a reasonable person would not have felt free to end the encounter.
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Because we hold the continued detention was unlawful, we need not decide the
other issues raised by Mr. Dove. The judgment of the district court is REVERSED and
REMANDED with instructions to grant the motion to suppress.
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
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