United States v. Powell

FILED
United States Court of Appeals
Tenth Circuit

May 7, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 07-3211
v. (D.C. No. 06-CR-40072-SAC)
(D. Kan.)
ALBERT POWELL, III,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before LUCERO, HOLLOWAY, and GORSUCH, Circuit Judges.

Albert Powell challenges the district court’s denial of his motion to

suppress drugs found in a search of his vehicle. Specifically, Mr. Powell argues

that his traffic stop should have ended after a sheriff’s deputy issued him a

warning citation and that his further detention for questioning was unlawful. Like

the district court, however, we hold that reasonable suspicion of criminal activity

sufficient to support a lawful investigative detention existed at the time the initial

traffic stop ended; accordingly, we affirm.

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
 I

While patrolling Interstate 70 in Kansas late one morning in May 2006,

Shawnee County Sheriff’s Deputy Tracey Trammel observed an eastbound white

GMC Yukon cross over the fog line on two separate occasions within a quarter of

a mile. Other vehicles were not having difficulty remaining on the road, and no

road, weather, or traffic conditions explained the weaving, so Deputy Trammel

stopped the Yukon. Deputy Trammel approached the vehicle on the passenger

side and explained to Mr. Powell, the driver and sole occupant, why he stopped

him and asked if he was tired or had been drinking. Mr. Powell responded in the

negative and then, without any prompting from the deputy, began volunteering

information.

Mr. Powell told Deputy Trammel that he rented the Yukon to move from

Colorado to Lexington, Kentucky, where he planned to open a hip-hop clothing

store. He explained that he was transporting tires for his Chevy Suburban, which

he owned but left at home in Colorado, because the tires were not made for long

distance highway driving. He added that he planned to unload the tires in

Lexington before returning to Colorado to turn in his rental vehicle and pick up

his Suburban. Mr. Powell went on to say that he was traveling with his brother,

who was “up ahead” because he did not wait for Mr. Powell when Mr. Powell

stopped to use the restroom.

-2-
 During Mr. Powell’s narrative, Deputy Trammel observed that Mr. Powell

appeared “extremely nervous” because, in addition to his talkativeness, he was

breathing heavily and avoiding eye contact. The deputy also detected a “[r]eal

strong deodorizer smell,” specifically the smell of fabric softener, which he later

testified is often used to mask the odor of illegal drugs. Appellee’s Supp. App. at

17, 21. He further observed that the Yukon was “probably half full,” containing

four large tires and several boxes. Id. at 18-19.

After Mr. Powell explained his travel plans, Deputy Trammel requested his

license and rental agreement, which Mr. Powell produced and Deputy Trammel

took to his patrol car. The rental agreement showed that Mr. Powell rented the

Yukon the day before and was supposed to return it three days after the rental

date. Although there was some confusion about the status of Mr. Powell’s

license, dispatch ultimately informed Deputy Trammel that it was expired or

canceled.

Deputy Trammel again approached Mr. Powell’s vehicle on the passenger

side, returned his license and rental agreement, and issued him a warning citation

for the lane violation. The deputy thanked Mr. Powell and appeared ready to

return to his patrol car, but then paused briefly and inquired if he could ask a few

additional questions. Before the district court, Deputy Trammel and Mr. Powell

disputed whether Mr. Powell agreed. But they do agree that Deputy Trammel

went on to ask if Mr. Powell was transporting anything illegal such as marijuana,

-3-
heroin, cocaine, or weapons. Looking at the floor, Mr. Powell answered that he

was not. Deputy Trammel then sought permission to search the vehicle, but Mr.

Powell refused.

Believing he already had reasonable suspicion to detain Mr. Powell for a

canine sniff of his vehicle, Deputy Trammel asked Mr. Powell to exit the vehicle

and walked the drug detection dog traveling in his patrol car around the Yukon’s

perimeter. The dog alerted, and Deputy Trammel explained to Mr. Powell that

this gave him reason to look inside the vehicle. Upon searching the Yukon,

Deputy Trammel found marijuana in a box labeled “AP bedroom,” which was

emitting a strong deodorizer odor.

Ultimately, the government charged Mr. Powell with possessing with intent

to distribute approximately 119 kilograms of a mixture or substance containing

marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Mr. Powell moved

to suppress the drugs found as a result of the search, arguing that his initial stop

and later detention were illegal. The district court concluded that both the initial

stop for a traffic infraction and the detention that occurred after the initial stop

ended were based on reasonable suspicion and therefore denied the motion to

suppress. After this ruling, Mr. Powell entered a conditional guilty plea,

reserving the right to appeal the suppression order.

-4-
 II

On appeal, Mr. Powell does not contest the legality of the initial traffic stop

for lane violations, so the only issue before us is whether his continued detention

for additional questioning and a canine sniff of his vehicle, after the traffic stop

ended, complied with the Fourth Amendment. We approach this question, as in

all appeals from a district court’s order on a motion to suppress, viewing the

record evidence in the light most favorable to the district court’s ruling and

accepting its factual findings unless clearly erroneous, though we assess de novo

the ultimate legal question whether the seizure was reasonable under the Fourth

Amendment. United States v. Cortez-Galaviz, 495 F.3d 1203, 1205 (10th Cir.

2007).

A routine traffic stop effects an investigative detention, which generally

must “last no longer than is necessary to effectuate the purpose of the stop,” and

the scope of which “must be carefully tailored to its underlying justification.”

Florida v. Royer, 460 U.S. 491, 500 (1983); see United States v. Hunnicutt, 135

F.3d 1345, 1348 (10th Cir. 1998). To extend the detention beyond the initial

stop, an officer must have objectively reasonable and articulable suspicion that

illegal activity is afoot, or the initial detention must have become a consensual

encounter. Hunnicutt, 135 F.3d at 1349. In this case, the parties agree that the

initial traffic stop ended after Deputy Trammel returned Mr. Powell’s license and

rental agreement and issued him a warning citation. The detention in question

-5-
thus began when Deputy Trammel then inquired if he could ask Mr. Powell more

questions. Before us, the government does not pursue the argument that Mr.

Powell consented to this continued detention, so our inquiry is limited to

assessing whether, as a matter of law, reasonable suspicion of criminal activity

existed at the time the initial traffic stop ended.

In deciding whether reasonable suspicion existed to support an

investigative detention, we consider the totality of the circumstances, viewed

from the standpoint of an objectively reasonable police officer, to determine

whether a particularized and objective basis existed for suspecting illegal activity.

United States v. Lopez, 518 F.3d 790, 797 (10th Cir. 2008). We evaluate the

officer’s conduct in light of common sense and ordinary human experience, at the

same time granting deference to a trained officer’s “ability to distinguish between

innocent and suspicious circumstances.” Id. (quotation omitted). “Our task . . . is

not to pigeonhole each purported fact as either consistent with innocent travel or

manifestly suspicious, but rather to determine whether the totality of the

circumstances justify the detention.” United States v. Mendez, 118 F.3d 1426,

1431 (10th Cir. 1997) (quotation omitted). The reasonable suspicion standard

thus “requires an officer to have ‘some minimal level of objective justification,’

but he or she ‘need not rule out the possibility of innocent conduct as long as the

totality of the circumstances suffices to form a particularized and objective basis

for [an investigative] stop.’” Cortez-Galaviz, 495 F.3d at 1206 (quoting INS v.

-6-
Delgado, 466 U.S. 210, 217 (1984) and United States v. Vercher, 358 F.3d 1257,

1261 (10th Cir. 2004)). In this case, several factors recognized by our case law as

contributing to reasonable suspicion lead us to conclude that standard was met.

First, Deputy Trammel testified that he detected a strong odor of

deodorizer, specifically fabric softener, in Mr. Powell’s vehicle, and that such

odors are often used to mask the smell of illegal drugs:

[I]n my training and experience, using masking odors such as laundry
detergent, Febreze, air fresheners, what they’re trying to do is mask
the odor of the contraband that’s in the vehicle, just so you can’t
smell it through your human nose. Only thing you can smell is them
kind of masking odors. This one here smelled of fabric softeners,
which a fabric softener is uncommon in a vehicle because that’s what
you do laundry with.

Appellee’s Supp. App. at 21. Our cases have consistently acknowledged that “a

strong odor may give rise to reasonable suspicion on the part of law enforcement

officials that the odor is being used to mask the smell of drugs.” United States v.

Salzano, 158 F.3d 1107, 1114 (10th Cir. 1998); see United States v. Villa-

Chaparro, 115 F.3d 797, 801 (10th Cir. 1997) (odor of detergent and visible soap

crystals contributed to reasonable suspicion); United States v. Hernandez-

Rodriguez, 57 F.3d 895, 898 (10th Cir. 1995) (strong smell of perfume supported

reasonable suspicion that it was masking odor of drugs); United States v. Stone,

866 F.2d 359, 362 (10th Cir. 1989) (odor of patchouli oil, used to mask other

smells, contributed to reasonable suspicion of drug possession); see also United

States v. West, 219 F.3d 1171, 1178-79 (10th Cir. 2000) (“The Tenth Circuit has

-7-
consistently held that the scent of air freshener is properly considered as a factor

in the probable cause analysis.”).

Second, Mr. Powell was driving a rental vehicle, a practice that, while of

course consistent with lawful activity, we have also previously credited as

common among drug couriers. See United States v. Contreras, 506 F.3d 1031,

1036 (10th Cir. 2007) (considering, as contributing to reasonable suspicion, the

fact that rental cars are “often used by narcotics traffickers”); United States v.

Williams, 271 F.3d 1262, 1270 (10th Cir. 2001). Contributing to the

suspiciousness of Mr. Powell’s use of a rental vehicle in this case is the fact that

he rented a GMC Yukon but told Deputy Trammel that he owned a Chevy

Suburban – essentially the exact same vehicle – which he left at home. As

Deputy Trammel observed, the fact that Mr. Powell rented a Yukon instead of

using his Suburban for the trip undercut the plausibility of his story:

[The vehicles are] equal in size, which that was another thing that I
took note on, is that if you’ve got a vehicle of the same size, why
would you pay all the money to rent a vehicle? He had the same
vehicle sitting at home that he could have used. And this vehicle
here wasn’t completely full anyway, so it wasn’t for any type of
room. And in comparison, it was actually the same.

Appellee’s Supp. App. at 22-23. An officer’s suspicion may reasonably be

aroused where, as here, a defendant’s proposed factual scenario, if not entirely

inexplicable, seems unlikely. See, e.g., United States v. Kopp, 45 F.3d 1450,

1453-54 (10th Cir. 1995) (reasonable suspicion supported by the fact that officer

-8-
“did not find it plausible that Defendant would drive from California to North

Carolina merely to take a very dilapidated sofa to some friends”).

Third, the rental agreement was of extremely short duration in light of Mr.

Powell’s stated travel plans: he rented the Yukon in Colorado on May 15th, the

traffic stop occurred in Kansas on the 16th, Mr. Powell stated he was driving to

Kentucky to move there and start a business, and the vehicle was due back in

Colorado on the 18th. Deputy Trammel testified:

You know, he’s stating that he’s moving to Kentucky to start a
business. There’s really no way on a three-day rental that he has,
being one single driver by himself, any time at all to conduct any
business, other than pretty well drive straight to Kentucky and turn
around and drive straight back. I didn’t – and he also rented it both
ways.

Appellee’s Supp. App. at 25. The three-day rental agreement would essentially

require Mr. Powell to drive the 1,190 miles from Denver to Lexington, unload the

vehicle, and turn right around and drive 1,190 miles back. See Contreras, 506

F.3d at 1036 (considering “suspicious at best and incredible at worst” defendant’s

claim “to have driven more than 1,200 miles to see her family, only to turn

around within a day and begin the 1,200-mile drive back”). Mr. Powell argues

that the rental agreement does not suggest criminal activity because it is

physically possible to make the trip in that amount of time, he could have

miscalculated the necessary time but later called the rental company to request an

extension, or he could have chosen to be late returning the vehicle. Certainly,

-9-
these are all possibilities, but under our precedent, the duration of his rental

agreement, combined with the length of his trip, gives rise to a degree of

suspicious conduct sufficient to contribute at least something to the reasonable

suspicion calculus.

Fourth, Mr. Powell was transporting a relatively small amount of luggage

seemingly inconsistent with his stated purpose of moving to Kentucky. Deputy

Trammel testified that, instead of looking like someone moving all of his worldly

possessions, Mr. Powell’s vehicle was “probably half full,” containing only four

tires, two or three boxes, a light bag, and a pillow and blanket. Appellee’s Supp.

App. at 18-19. Our case law recognizes that an amount of luggage seemingly

inconsistent with the stated purpose of one’s trip may fuel reasonable suspicion of

involvement in illegal activity. See, e.g., United States v. Jones, 44 F.3d 860,

863, 872 (10th Cir. 1995) (three small pieces of luggage in the back seat

suspiciously inconsistent with alleged two-week trip); United States v. Arango,

912 F.2d 441, 443, 447 (10th Cir. 1990) (two small bags inconsistent with two-

week vacation for two people); United States v. Espinosa, 782 F.2d 888, 891

(10th Cir. 1986) (“very little luggage” suspicious in light of claim of being on

vacation). Here, Mr. Powell told Deputy Trammel that this was his first trip and

he would be making a second trip with his Suburban, and he argues on appeal that

an individual may also legitimately choose to mail or ship his or her belongings

for a cross-country move. But these explanations, while not implausible, do not

- 10 -
entirely answer the question why one would make an initial cross-country trip to

transport only half a vehicle of items if one plans on making a second trip and

possibly shipping other items. As Deputy Trammel asked when testifying before

the district court: in common experience doesn’t one usually pack things in

tightly on the first trip to assure there will be room in the second trip for the

remainder? Under our governing authority, an apparent (even if conceivably

explicable) inconsistency between the stated purpose of a trip and the amount of

luggage being transported may contribute to reasonable suspicion that illegal

activity is afoot.

Finally, Deputy Trammel testified that Mr. Powell appeared “excessively

nervous” and remained so throughout the entire encounter, even when the deputy

returned to Mr. Powell’s vehicle to let him know the deputy was only giving him

a warning citation. Appellee’s Supp. App. at 15, 29-30. Mr. Powell was

breathing heavily, “kept looking forward and was trying to avoid eye contact,”

and offered an unprompted and extended narrative about his travel plans. Id. at

15. Of course, even law-abiding citizens exhibit signs of nervousness when

confronted by a law enforcement officer, and we have repeatedly held that

“nervousness is of limited significance in determining reasonable suspicion.”

United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997) (quoting United States

v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994)). But we have also held that

there is “no reason . . . to ignore [a defendant’s] nervousness in reviewing the

- 11 -
totality of the circumstances,” especially when, as here, the nervousness is

extreme or prolonged. Williams, 271 F.3d at 1269. 1

Considering all of these factors together, the totality of the circumstances

reveals a scenario sufficient to form a particularized and objective basis for

suspecting drug trafficking and detaining Mr. Powell for further questioning about

illegal drugs and a dog sniff of his vehicle. A number of our cases, holding that

reasonable suspicion exists in circumstances remarkably similar to these,

confirms the point. For example, in United States v. Sanchez-Valderuten, 11 F.3d

985 (10th Cir. 1993), we held that the officer had reasonable suspicion to detain

the defendant for further questioning based on the masking smell of air freshener

and coffee in his vehicle, the defendant’s apparent evasion of the officer’s

questions about his point of departure, and the defendant’s seemingly unusual

choice to travel I-70 when driving from New York to Washington state. Id. at

989. Similarly, in United States v. Ledesma-Dominguez, 53 F.3d 1159 (10th Cir.

1995), we held that the “[a]bsence of personal identification, appellant’s nervous

behavior, and the presence of the masking odor [of air freshener] created . . .

1
See United States v. Santos, 403 F.3d 1120, 1127 (10th Cir. 2005)
(“[U]nless [nervousness] is unusually severe or persistent, or accompanied by
other, more probative, grounds for reasonable suspicion, it is of limited
significance in determining whether reasonable suspicion exists.”); Williams, 271
F.3d at 1269 (including “extreme nervousness [that] did not dissipate throughout
the entire stop” in reasonable suspicion analysis); see also United States v.
Ozbirn, 189 F.3d 1194, 1200 (10th Cir. 1999) (taking into account “suspicious
conduct” such as “nervous, talkative, and overly-friendly behavior”).

- 12 -
identifiable and articulable suspicion that a drug-related crime was being

committed.” Id. at 1161; see also Contreras, 506 F.3d at 1036 (holding

reasonable suspicion existed based on defendant’s nervousness, her purported

travel plans to drive 2,400 miles roundtrip for a one-day visit, the use of a rental

car, and the presence of food wrappers from a California restaurant when the

defendant claimed to be driving to Nebraska from Las Vegas). We see no

convincing way to distinguish Mr. Powell’s case from these controlling

precedents. 2

* * *

Like the district court before us, we conclude that Mr. Powell’s roadside

detention for further questioning and a canine sniff of his vehicle, after the initial

traffic stop ended, was supported by reasonable suspicion of drug trafficking.

2
The government argues that Mr. Powell’s detention was lawful for
another, separate reason – namely that Deputy Trammel had probable cause to
arrest Mr. Powell for driving without a valid license – and cites to us by way of
support United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001). See id.
at 1192-94 (holding a detention lawful because, among other things, “probable
cause to arrest arose seconds into the stop” when the officer became aware that
the defendant was driving without a license, even though the officer did not
consider this to be a basis for the detention and instead relied on suspicion of
drug trafficking). Whatever the merits or demerits of such an argument, the
government did not raise it in the district court and we have no need to reach
alternative grounds to affirm the district court’s judgment in this case.

- 13 -
The order of the district court is therefore affirmed.

ENTERED FOR THE COURT

Neil M. Gorsuch
Circuit Judge

- 14 -