FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 28, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-4067
(D.C. No. 2:09-CV-00029-DS)
$85,688.00 IN UNITED STATES (D. Utah)
CURRENCY,
Defendant,
ANDREW C. WILEY,
Claimant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, EBEL and PHILLIPS, Circuit Judges.
At the end of a Utah traffic stop, a state trooper detained Andrew Wiley so that a drug
dog could sniff around Wiley’s truck. After the dog alerted, troopers searched Wiley’s
*
This order and judgment is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and Tenth
Circuit Rule 32.1.
truck and seized from it $85,6681 and a small amount of marijuana. Although Wiley was
never charged with a federal crime, the government filed a forfeiture complaint against
the currency. As part of the forfeiture-in-rem proceeding, Wiley filed a motion to
suppress, challenging the reasonableness of his detention preceding the search of his
truck. After a hearing, the district court denied the motion to suppress.
On appeal, all panel members agree that the initial stop was justified at its inception.
But Judge Phillips and Judge Ebel both vote to reverse the district court’s order denying
suppression. Judge Phillips reasons that reasonable suspicion of any registration offenses
(expired, fake, or stolen license plates or registration tabs) dissipated when the trooper
learned or should have learned that the State of Missouri had issued the plate and its
registration tab within two weeks of the traffic stop; and that any reasonable suspicion
that Wiley’s truck was stolen dissipated when Wiley handed the trooper his “original
motor vehicle title receipt.” Although Judge Phillips agrees with Chief Judge Briscoe that
the trooper had reasonable suspicion of illegal drug activity by the end of the stop, Judge
Phillips reasons that the government cannot rely on the key facts suggesting illegal drug
activity because the trooper learned those facts after Wiley was entitled to be released.
Judge Ebel reasons that reasonable suspicion continued up to the point that the trooper
returned Wiley’s driving documents and told Wiley he was free to leave. But Judge Ebel
reasons that the trooper lacked reasonable suspicion of illegal drug activity before
continuing to detain Wiley in order to deploy the drug dog. Chief Judge Briscoe dissents,
1
We note a small discrepancy in the dollar figure stated in our caption versus the
district court’s. Our caption lists the amount alleged in the government’s forfeiture
complaint.
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reasoning that the trooper had reasonable suspicion of a registration-related offense up
until he returned Wiley’s driving documents and further that by then he had a separate
reasonable suspicion of illegal drug activity. Accordingly, because two judges vote to
suppress the evidence seized from the truck, we REVERSE the district court’s order
denying suppression and REMAND for further proceedings.2
Entered for the Court
Per Curiam
2
We grant the government’s motion to supplement the record on appeal to include a
transcript of the traffic stop.
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United States v. $85,688.00, No. 13-4067
EBEL, J., concurring in the judgment.
This case turns on whether an officer conducting a traffic stop maintained a
reasonable suspicion of criminal activity throughout his investigation of a cooperative,
yet objecting, citizen. Chief Judge Briscoe believes such justification existed throughout
the stop and interrogation here, and she would therefore affirm the district court’s denial
of Wiley’s suppression motion. Dissenting Op. at 1, 4, 9, 18-19.
While Judge Phillips and I agree that the prolonged detention violated Wiley’s
Fourth Amendment rights, we disagree about when the encounter became unjustified and,
thus, unconstitutional. Judge Phillips concludes that Trooper Neff lacked reasonable
suspicion to continue to detain Wiley after Trooper Neff should have concluded that
Wiley’s truck was lawfully registered in Missouri—something Judge Phillips believes
should have happened well before Trooper Neff observed any of the factors that the
government now contends authorized prolonging the detention for a dog sniff. Judge
Phillips would thus reverse without needing to determine whether Trooper Neff’s
continued investigation gave him reasonable suspicion that Wiley was trafficking drugs.
Phillips Op. at 8 n.5. I believe, on the contrary, that Trooper Neff had sufficient cause to
detain and question Wiley up to, but not after, the point he returned Wiley’s driving
documents and told him that he could be on his way. In my opinion, therefore, only the
evidence obtained against Wiley from that point on must be suppressed.
Thus, although Judge Phillips and I reach the same conclusion—that the evidence
against Wiley must be suppressed—I write separately.
I.
I agree with Chief Judge Briscoe that Trooper Neff possessed reasonable suspicion
to detain Wiley in his patrol car for sixteen minutes while he investigated a possible
registration violation. We all agree that the “not on file” response to Trooper Neff’s
registration inquiry justified the initial traffic stop. See United States v. Esquivel-Rios,
725 F.3d 1231, 1235 (10th Cir. 2013). The question, then, is whether the Fourth
Amendment affords Trooper Neff the leeway to confirm or deny his registration
suspicions as he did. I believe it does.
Although I doubt that a more vigilant inspection of Wiley’s license plate and
apparently valid tags would have adequately dispelled a reasonable officer’s suspicions,
because it seems unlikely that further roadside investigation was capable of reconciling
the inconclusive information relayed by the computerized records search, we need not
resolve that issue in this case because no such inspection occurred here, and the Fourth
Amendment did not mandate such an inspection. Judge Phillips concludes otherwise,
pointing to the statement in Florida v. Royer, 460 U.S. 491, 500 (1983), that “the
investigative methods employed should be the least intrusive means reasonably available
to verify or dispel the officer’s suspicion in a short period of time.” Phillips Op. at 10.
As the Supreme Court has made clear, however, “[t]hat statement . . . was directed at the
length of the investigative stop, not at whether the police had a less intrusive means to
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verify their suspicions before stopping Royer. The reasonableness of the officer's
decision to stop a suspect does not turn on the availability of less intrusive investigatory
techniques.” United States v. Sokolow, 490 U.S. 1, 11 (1989) (emphasis added) (“Such a
rule would unduly hamper the police’s ability to make swift, on-the-spot decisions . . .
and it would require courts to indulge in unrealistic second-guessing.” (internal citations
omitted)); see also Navarette v. California, 134 S.Ct. 1683, 1691 (2014) (reaffirming the
same). I believe that rule adequately protects Trooper Neff’s decision to question Wiley
rather than to inspect closely his license plate. See United States v. Rodriguez, 739 F.3d
481, 489 (10th Cir. 2013).1
In other words, once Trooper Neff received a “not on file” return from the
computerized records search, it was reasonable for him to initiate a stop, approach Wiley,
and investigate orally his suspicion that Wiley was violating Utah registration laws.2 It
was therefore reasonable for Trooper Neff to request Wiley’s driver’s license and
1
I agree with Chief Judge Briscoe’s distinction of United States v. McSwain, 29 F.3d 558
(10th Cir. 1994) and its progeny. See Dissenting Op. at 4-7. At the risk of
oversimplifying, our “tag cases” are essentially mistake of fact cases that stand for the
following proposition: when an officer initiates a traffic stop based on a faulty, visual
observation, he cannot detain the individual past the point he realizes, or should have
realized, that the justification for the stop was illusory from the beginning. That principle
does not control here, where the stop was based not on a faulty observation but on an
objective incongruity between the computerized records search’s “not on file” return and
Wiley’s apparently valid plate.
2
Other officers have testified that such an investigation is essentially standard operating
procedure. See United States v. Hernandez-Velasco, 2006 WL 2129468, at n. 7 (D. Utah
July 28, 2006) (“Trooper Carrubba testified that in his experience, if he received a ‘not on
file’ response to a computer inquiry he would always stop the vehicle to clarify any
discrepancies between the computer and the paperwork within the vehicle.”); United
States v. Lee-Speight, 2010 WL 2653412, at *1 (D. Kan. June 29, 2010) (same).
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registration, have dispatch run computer checks on those materials, and issue any
citations or warnings as appropriate. See United States v. Kitchell, 653 F.3d 1206, 1217
(10th Cir. 2011). While he waited for dispatch to run the requisite computer checks,
moreover, it was likewise reasonable for Trooper Neff to inquire about Wiley’s travel
plans, see United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001), arrest record,
see United States v. McRae, 81 F.3d 1528, 1536 n. 6 (10th Cir. 1996), recent truck
purchase, see United States v. Ludlow, 992 F.2d 260, 265 (10th Cir. 1993), and almost
anything else, “whether or not related to the purpose of [the] traffic stop,” so long as the
questions “d[id] not excessively prolong the stop,” Kitchell, 653 F.3d at 1217. And it
was perfectly reasonable for Trooper Neff to ask Wiley to sit in the front seat of his patrol
car while he investigated all of the above. See United States v. Speal, 166 F.3d 350 (10th
Cir. 1998) (unpublished). Finally, and maybe most importantly, it was not unreasonable
for Trooper Neff to detain Wiley for a mere sixteen minutes before he completed that
registration investigation. See Williams, 271 F.3d at 1271.
In light of these well-settled rules, therefore, I do not believe Trooper Neff’s
registration investigation violated the Fourth Amendment.
II.
Although there was nothing unreasonable about the way Trooper Neff investigated
the possible registration violation, that is not the end of the inquiry because, as even
Trooper Neff conceded, it soon became clear that the suspicions justifying the stop had
dissipated. See Aplt. App. at 135-36 (“I didn’t have a violation. I believed the vehicle
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belonged to him and he had the proper paperwork, and I’m not going to write a ticket for
nothing.”). While that realization did not vitiate the lawfulness of the stop, it did require
Trooper Neff to release Wiley at that time unless he had acquired “a new and
independent” basis for reasonably suspecting that Wiley was engaged in criminal activity.
See United States v. Winder, 557 F.3d 1129, 1135 (10th Cir. 2009); accord United States
v. Soto-Cervantes, 138 F.3d 1319, 1322 (10th Cir. 1998) (“Once the concern that justified
the initial stop is dispelled, further detention will violate the Fourth Amendment unless
the additional detention is supported by a reasonable suspicion of criminal activity.”). No
one disagrees that Trooper Neff failed to release Wiley, or that Wiley refused to consent
to his further detention. As such, the dispositive question is whether Trooper Neff’s
sixteen-minute registration investigation yielded the additional reasonable suspicion
necessary to extend the traffic stop beyond its initial purpose.
The district court held that it did, concluding that the totality of the circumstances
led Trooper Neff to reasonably suspect that Wiley was trafficking drugs. According to
the district court, Wiley’s travel plans and the “lived-in” look of his truck combined with
his past marijuana arrest, unemployment status, and nervousness supported an objectively
reasonable suspicion to prolong the stop. Although Chief Judge Briscoe disclaims any
reliance on many of the factors credited by the district court, she nevertheless concludes
that the totality of the circumstances justified the prolonged detention and subsequent
canine sniff. I cannot agree.
-5-
Before explaining why I diverge from Chief Judge Briscoe, I should stress that we
agree that the district court erroneously credited many of the reasonable suspicion factors
urged by the government. I agree with Chief Judge Briscoe, for example, that Wiley’s
possessing a coffee cup and an energy drink contribute nothing to the reasonable
suspicion calculus. To that list, I would also add Wiley’s hanging shirts, discarded
wrappers, and cell phone charger. Although Trooper Neff testified that each of these
factors heightened his suspicions, see, e.g., Dist. Ct. at 11 (“Trooper Neff testified that
based on his training and experience, the motoring public traveling across the country in
pursuit of innocent activities will periodically stop and tidy up their vehicle.”), the district
court erred in holding that such factors could contribute to a reasonable suspicion of drug
trafficking. This court has long recognized that inchoate suspicions and unparticularized
hunches “based on indicators so innocent or susceptible to varying interpretation as to be
innocuous cannot justify a prolonged traffic stop or vehicle search.” See, e.g., United
States v. White, 584 F.3d 935, 950 (10th Cir. 2009) (internal quotation marks omitted);
accord United States v. Kaguras, 183 F. App’x 783, 789 n. 2 (10th Cir. 2006)
(unpublished) (“Reasonable suspicion must be reasonable.”). The foregoing factors
should have been afforded no weight, either individually or in the aggregate, not because
they are associated with innocent but not criminal conduct, but because they have become
so ubiquitous in interstate travel that they are simply not probative one way or another.
No matter what other factors are present, in other words, I fail to see how the presence of,
for example, a cell phone charger makes it more or less likely that an individual is
trafficking drugs.
-6-
For similar reasons, I agree with Chief Judge Briscoe to afford no weight to
Trooper Neff’s testimony that his suspicions were also peaked by Wiley’s nervousness
and recent truck purchase. According to Trooper Neff, the fact that Wiley said he paid
$5,000 for his truck was suspicious because Trooper Neff believed it was “brand new”
and worth much more than that, testifying that “drug organizations provide newly
purchased vehicles for low prices and register those vehicles in the name of the driver.”
Dist. Ct. at 12. The problem, however, is that Wiley’s truck was neither brand new nor
worth more than $5,000, and Trooper Neff’s subjective beliefs to the contrary were not
objectively reasonable in the face of being provided an official title receipt that listed the
truck as six years old with more than sixty-seven thousand miles on it. And because
reasonable suspicion cannot arise from an officer’s unreasonable factual errors, see
United States v. Herrera, 444 F.3d 1238, 1246 (10th Cir. 2006), the district court erred in
weighing this factor in its totality of the circumstances analysis.
As Chief Judge Briscoe recognizes, the district court also erred in crediting
Wiley’s alleged nervousness in the reasonable suspicion calculus. Although Trooper
Neff asserted that Wiley appeared nervous, his subjective evaluation of Wiley’s behavior
is not controlling: given the fact that the two had never interacted before, Trooper Neff
lacked any basis to evaluate whether Wiley “was acting nervous and excited or whether
he was merely acting in his normal manner,” United States v. Fernandez, 18 F.3d 874,
879 (10th Cir. 1994) (internal quotation marks omitted). Indeed, because “it is difficult,
even for a skilled police officer, to evaluate whether a person is acting normally for them
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or nervously,” this court will reject an officer’s “naked assertion” of nervousness unless it
is accompanied in the record by “specific indicia” verifying that “the defendant’s
nervousness was extreme.” United States v. Simpson, 609 F.3d 1140, 1147-48 (10th Cir.
2010) (emphasis added). That confirmation was not present here: neither Wiley’s
statement that he did not want any tickets nor his alleged fumbling his phone as he
searched for his aunt’s number qualifies as extreme nervousness. See United States v.
Wood, 106 F.3d 942, 948 (10th Cir. 1997) (“It is certainly not uncommon for most
citizens—whether innocent or guilty—to exhibit signs of nervousness when confronted
by a law enforcement officer.”); United States v. Wald, 216 F.3d 1222, 1227 (10th Cir.
2000) (“Wald's fumbling for his vehicle registration suggested nothing more than such
innocuous nervousness.”).
Once the above factors are removed from the reasonable suspicion calculus—
either because they find no support in the record or because they are too innocuous to be
probative of anything—the only factors that remain are Wiley’s travel plans, arrest
record, can of Febreze, and failure to roll down his window completely. For the reasons
developed below, I believe that the totality of these factors, along with the inferences
drawn therefrom, were insufficient to give an objective officer reasonable suspicion to
suspect that Wiley was trafficking drugs.
i. Wiley’s partially rolled down window and can of Febreze
Trooper Neff testified that his suspicions were peaked upon approaching Wiley’s
truck and noticing that Wiley had only partially rolled down his window. Combined with
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the fact that Wiley then rebuffed Trooper Neff’s request to open Wiley’s truck door,
Trooper Neff testified that he suspected Wiley was trying to mask the odor of illegal
drugs. Wiley’s actions, however, amounted to little more than Wiley refusing to consent
to a search of his vehicle, and it should go without saying that crediting such a refusal in
the reasonable suspicion calculus would violate the Fourth Amendment. After all, as this
court has previously recognized, “[i]f refusal of consent were a basis for reasonable
suspicion, nothing would be left of Fourth Amendment protections. A motorist who
consented to a search could be searched; and a motorist who refused consent could be
searched, as well.” United States v. Santos, 403 F.3d 1120, 1126 (10th Cir. 2005). Thus,
because a refusal of consent can play no role in the reasonable suspicion calculus, the
district court erred in weighing Wiley’s partially rolled down window in its analysis.
Trooper Neff further testified, however, that his suspicion that Wiley was
attempting to mask the smell of drugs was heightened upon noticing an aerosol can of
Febreze in Wiley’s truck, which he asserted was “very common for being used to mask
small amounts of marijuana.” Aplt. App. at 58. Although considering the Febreze can in
the reasonable suspicion analysis is not per se inappropriate, it carries very little weight
under the circumstances of this case. As an initial matter, while it is true that “[t]he
Tenth Circuit has consistently held that the scent of air freshener is properly considered
as a factor in the probable cause analysis,” United States v. West, 219 F.3d 1171, 1178
(10th Cir. 2000) (emphasis added), there was no testimony here that scent of air freshener
was emanating from Wiley’s truck, and I am unaware of any case where this court has
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held that the mere presence of an air freshener can support reasonable suspicion.3 Nor
would that seem to be a distinction without a difference: after all, if the inference is that
drug traffickers use air fresheners to mask the smell of the drugs they are transporting,
then the fact that an officer observes but does not detect the use of an air freshener would
seem to counsel against inferring that drugs are present. Indeed, that would be
particularly true in the case of an aerosol air freshener, like Febreze, which only works if
activated by its user. In any event, however, even “[t]he scent of air freshener, standing
alone, is inadequate to support reasonable suspicion absent other indicia of criminal
activity,” Kaguras, 183 F. App’x at 790, and the totality of the circumstances here make
it particularly inappropriate to give this factor much weight. Not only are other indicia of
criminal activity lacking, but having Febreze is entirely consistent with Wiley’s
explanation that he was on a cross-country road trip, especially because, as Trooper Neff
testified, Wiley’s truck had a “lived-in look” with luggage and wrappers strewn
throughout the cabin.
3
See, e.g., United States v. Beltran-Diaz, 366 F. App’x 950, 953 (10th Cir. 2010)
(unpublished) (considering “heavy scent of air freshener”); United States v. Bravo, 306 F.
App’x 436, 439 (10th Cir. 2009) (unpublished) (same); United States v. Powell, 277 F.
App’x 782, 785 (10th Cir. 2008) (unpublished) (same); United States v. Lyons, 510 F.3d
1225, 1231 (10th Cir. 2007) (same); United States v. Kaguras, 183 F. App’x 783, 790
(10th Cir. 2006) (unpublished) (same); United States v. Garcia-Rodriguez, 127 F. App’x
440, 446 (10th Cir. 2005) (unpublished) (same); United States v. Anderson, 114 F.3d
1059, 1066 (10th Cir. 1997) (same); United States v. Leos-Quijada, 107 F.3d 786, 795
(10th Cir. 1997) (same); United States v. Alvarez, 68 F.3d 1242, 1244 (10th Cir. 1995)
(same).
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ii. Wiley’s travel plans
Trooper Neff also testified that his suspicions were heightened upon learning of
Wiley’s travel plans. Although this court has “credited inconsistent travel plans as a
factor contributing to reasonable suspicion when there are lies or inconsistencies in the
detainee’s description of them,” we have rightfully “been reluctant to deem travel plans
implausible—and hence a factor supporting reasonable suspicion—where the plan is
simply unusual or strange because it indicates a choice that the typical person, or the
officer, would not make.” Simpson, 609 F.3d at 1148-49. Because Wiley’s travel plans
were neither inconsistent nor implausible and, therefore, not suspicious as a matter of
law, the district court erred in finding Wiley’s travel plans supportive of reasonable
suspicion. See Santos, 403 F.3d at 1132 (“Our holding that suspicious travel plans can
form an element of reasonable suspicion should not be taken as an invitation to find
travel suspicious per se.”).
Wiley told Trooper Neff that he was driving from Missouri to California to visit
friends and family. When pressed for more details, he said he was going to Los Angeles
to visit both his friend, Zach, who recently opened a cross-fit gym, and his aunt, Shiloh,
who needed help around her house because she was ninety-two years old. Wiley relayed
that it was as good a time as any to make the cross-country trip because he had recently
been laid off from his job at a bank. When Trooper Neff inquired whether Wiley had
taken I-80 all the way from Missouri—presumably attempting to trip Wiley up because I-
80 does not travel through Missouri—Wiley responded that he had taken I-70 through
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Colorado but had elected to take I-80 the rest of the way to California on his dad’s
recommendation that “it was beautiful country.” Tr. of Stop at 7. Although he conceded
that taking I-70 would have saved him almost a day in travel, he noted both that the
northern route was more scenic and that he had never taken it before, proclaiming “[i]f
you’re driving this [far], man, it might as well be worth it.” Tr. of Stop at 13.
As Chief Judge Briscoe recognizes, Wiley’s account of his travel plans was
neither vague nor inconsistent. Without hesitation, he was able to explain where he was
coming from, where he was going, and why he was going there; he was able to provide
Trooper Neff with the names and numbers of his aunt and friend who he was going to
visit,4 and his recollection of the places that he had stayed and the roads that he had
traveled on up to that point were consistent with those plans. Trooper Neff testified that
he found it suspicious that Wiley was on I-80 rather than I-70, because I-70 provided a
more direct route to his destination; but Wiley’s driving on I-80 was actually consistent,
not inconsistent, with his claim that he desired to take what he believed was a more
scenic route to his destination. Moreover, while taking a less-direct, more-scenic route
could be inconsistent with a detainee’s claim that he was in a hurry or needed to be
somewhere, Wiley’s travel plans were entirely consistent with his unemployment, which
“permitted him the luxury of time to make such a trip,” Wood, 106 F.3d at 947. His
4
Although neither Zach nor Shiloh answered when dispatch attempted to make contact,
that did not provide reasonable cause to be suspicious: there was no reason to believe the
numbers were not valid, and in the days of mass-telemarketing and caller ID, many of us
screen unknown calls, especially those from out of state numbers.
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account of his travel plans also cohered with the contents of his truck, as snacks, caffeine,
and cell phone chargers are part and parcel of any cross-country road trip.
Since there was nothing suspicious about Wiley’s account of his travel plans,
reasonable suspicion would have been warranted only if the plans themselves were
implausible or suspicious—that is, if Wiley’s itinerary was not “merely unusual,” but was
“sufficiently bizarre” to constitute a factor contributing to reasonable suspicion, see
Simpson, 609 F.3d at 1151. While it seems unlikely that Wiley’s itinerary was even
unusual, his travel plans were decidedly not sufficiently bizarre or implausible to warrant
reasonable suspicion. See Wood, 106 F.3d at 947 (“There is nothing criminal about
traveling by car to view scenery.”). To be sure, Trooper Neff believed that they were—
asserting that I-80 is not beautiful, and even if it were, driving on I-80 for its scenery
alone is suspicious—but implausibility, like all reasonable suspicion factors, must be
judged under an objective standard, not according to whether the individual officer would
choose to take the same trip or route if given the chance. And under the totality of the
circumstances presented here, there was nothing objectively implausible about Wiley’s
travel itinerary. Visiting friends and family was reason enough to take the trip; his
savings and family assistance made it financially attainable; and his recently being laid
off allowed him the flexibility to take the route of his choosing.
iii. Wiley’s arrest record
Trooper Neff also testified that his suspicions of drug trafficking activity were
heightened after a criminal history check revealed that Wiley had previously been
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arrested for marijuana and paraphernalia possession. Although this court has long stated
that an individual’s criminal record “may cast a suspicious light on other seemingly
innocent behavior,” see Simpson, 609 F.3d at 1147, we have stressed that “prior criminal
involvement alone is insufficient to give rise to the necessary reasonable suspicion to
justify shifting the focus of an investigative detention from a traffic stop to a narcotics or
weapons investigation.” Wood, 106 F.3d at 948. “If the law were otherwise, any person
with any sort of criminal record—or even worse, a person with arrests but no
convictions—could be subjected to a Terry-type investigative stop by a law enforcement
officer at any time without the need for any other justification at all.” United States v.
Sandoval, 29 F.3d 537, 543 (10th Cir. 1994). In short, lest we desire to turn individuals
with prior arrests, let alone convictions, into “roving targets for warrantless searches,”
Santos, 403 F.3d at 1132, we give little weight in the reasonable suspicion calculus to
criminal history when, as here, other indicia of criminal activity are lacking. What’s
more, there is also some question whether the criminal history check in this case actually
revealed facts that mapped onto the officer’s ultimate suspicions: although Trooper Neff
testified that he suspected Wiley of drug trafficking, Wiley’s criminal history report only
revealed arrests—not convictions—for marijuana and paraphernalia possession—not
trafficking—dating back more than seven years.5 Needless to say, the probative value of
5
Perhaps recognizing the disconnect between a nearly decade old marijuana possession
charge and full-scale drug trafficking, the government attempts to imbue this factor with
more probative force by alleging that Wiley lied about his marijuana charges. Aple B. at
26. But the record does not support that allegation.
When Trooper Neff asked Wiley if he had ever been arrested before, Wiley
responded, “A long time ago I had a DUI, seven years ago. And it was just kind of—.”
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a past conviction—to say nothing of a mere arrest—becomes weaker when the record
moves from revealing a past propensity to commit the exact offense suspected, to
revealing simply that the detainee has broken the law in the past.
For these reasons, then, Wiley’s criminal history could have reasonably
contributed very little to Trooper Neff’s suspicions of drug trafficking.
* * *
In the whole picture of the stop, the negligibly suspicious factors observed by
Trooper Neff become even less suspicious: Trooper Neff saw a Febreze can and found an
old arrest, but he also, for example, detected no extreme or prolonged nervousness; heard
no inconsistent or implausible travel plans; observed no disconnect between those plans
and the contents of Wiley’s truck; identified no alterations or modifications to the body of
Tr. of Stop at 9. Before he could finish his thought, dispatch interrupted and asked
Trooper Neff a question about Wiley’s truck, and Trooper Neff responded. Id. After
responding to dispatch, Trooper Neff, as he had done many times throughout the
interrogation, immediately changed the subject and asked Wiley, “So you bought this
truck for 5,000 bucks?” Id. Wiley’s arrest record was not discussed again until four
minutes later when dispatch informed Trooper Neff that “there was a prior arrest in 2001
for marijuana possession and paraphernalia possession.” Id. at 14. Trooper Neff said,
“tell me about that,” and Wiley responded, “They didn’t come out that way because of
the probation. I had two years’ probation only, and so they erased it. The only thing that
should have stuck was the DUI and the paraphernalia.” Id. Wiley’s arrest record was
never discussed further.
Because the record makes clear that Wiley was cutoff while attempting to explain
the circumstances surrounding his DUI arrest—which included the fact that he was also
found in possession of marijuana and paraphernalia at that time—I am unable to conclude
that Wiley lied about his criminal history. After all, it was Trooper Neff who changed the
subject away from Wiley’s criminal history, and Wiley was under no duty to protest that
interruption or to return the interrogation to the subject at a later time. Cf. Kaguras, 183
F. App’x 783 at n. 2 (“We are cautious about endorsing ‘catch-22’ factors for reasonable
suspicion.”).
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the truck; and neither saw nor smelled any drugs—all indicators which this court has
been repeatedly told correlate strongly with drug trafficking. I do not mean to suggest
that reasonable suspicion cannot be found without observing all, or for that matter any, of
these factors, but just that their absence cannot be overlooked during our totality of the
circumstances analysis. If the presence of individually innocent factors cannot be
omitted from the reasonable suspicion calculus, then the lack of especially incriminating
factors should not be excluded either. Cf. United States v. Lopez, 518 F.3d 790, 798
(10th Cir. 2008) (“[W]e believe that omission of an expected or customary action, equal
to actions themselves, can be of use in assessing whether something is amiss and criminal
activity may be afoot.”). In the end, then, only one conclusion follows from the totality
of the circumstances presented here: Trooper Neff may have guessed right this time, but
that’s not the stuff reasonable suspicion is made of.
I respectfully concur in reversing the district court’s denial of Wiley’s Motion to
Suppress. I would reverse and remand for further proceedings consistent with this
opinion.
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13-4067, United States v. $85,688.00
PHILLIPS, J., concurring in the judgment.
On September 15, 2008, Trooper Chamberlin Neff parked his patrol car in the
median on Interstate 80 near Salt Lake City to monitor traffic. He had recently joined the
patrol’s drug-interdiction team and had a drug dog with him. The trooper saw Wiley’s
2002 Toyota Tundra truck drive past him, and he ran its Missouri license-plate number to
check its registration.
While patrolling roadways, the trooper often accessed his computer database to
check the registration of automobiles with non-Utah license plates. He testified that the
database usually returned a name and address for the registered owner. He said that he
had previously received returns identifying registered owners from Missouri and other
states. He believed that his computer was linked to Missouri’s department of motor
vehicles.
But this time, as sometimes happened, a search of the computer database didn’t
reveal whether the truck was registered or unregistered. Instead, it identified the plate as
“not on file.” Apparently, after dispatch got the same return of “not on file,” the trooper
stopped Wiley’s truck to investigate its registration.1
1
Wiley didn’t present evidence in the district court undermining the reliability of the
database.
Upon stopping Wiley, the trooper made a beeline for the truck’s passenger door.2
On his way, he didn’t slow down to look at the plate but appeared to glance at it on his
way past. As shown by a photo taken at the stop, the light-colored Missouri license plate
looked brand new—it was shiny, clean, unbent, and unscratched—and it bore a
permanent mark of “SEP” (for September) as well as a conspicuous yellow tab numbered
“09” (for year 2009) in the middle of the plate. The tab was a registration sticker issued
annually after payment of fees. Nothing about the plate or tab suggested any alteration or
tampering. The trooper testified that he didn’t even look at the registration tab to see the
year printed on it or to see whether it was a registration for the truck.3
After Wiley rolled down the passenger window three or four inches, the trooper
asked through the crack if he could open the passenger door. Wiley said no. The trooper
asked Wiley if he had his driver’s license and was told yes. The trooper then asked where
Wiley was going and why. He also asked whether Wiley had been on the road long.
Finally, he said, “Tell you what. Grab your license, your registration and come on back to
my car, ok?” Government Ex. 19 at 1:53–55. As he passed the back of the truck, the
trooper again appeared to glance at the plate while walking by it, but he didn’t bend or
move closer to examine it. He stood at the rear of the driver’s side of the truck staring
2
We now order that the DVDs of the stop stipulated for filing by the parties on
January 2, 2014, be filed as a part of this case file.
3
From the photo of the plate, we can see but can’t discern other small printed letters
or numbers on the registration tab. Wiley didn’t develop the record on what the printed
characters are or what they mean. Accordingly, I can’t tell whether the trooper could have
verified that the truck was registered to Wiley with this information.
-2-
forward and awaited Wiley. Plainly, nothing about the plate or tab sparked the trooper’s
interest.
Wiley took a few moments to collect his documents and then accompanied the
trooper to the patrol car. Once inside, the trooper told Wiley that he’d stopped him
because his registration didn’t return on file. Wiley responded, “Oh, that’s no problem.
Here. I just bought it.” Id. at 2:46–50. He provided the trooper with his “original motor
vehicle title receipt” for the truck, which the State of Missouri had issued to him just
seven days before. He also handed the trooper his driver’s license and his insurance card
for a different automobile (which he said also covered the truck). The trooper then asked
more questions about the people Wiley planned to visit in Los Angeles. During this
questioning, the trooper interjected, “Are you nervous?” Id. at 3:20–21. After this, he
relayed to dispatch Wiley’s driver’s license number and VIN and asked dispatch for
Wiley’s criminal history.
As the trooper awaited results from dispatch, he continued to question Wiley about
his trip, his preferences in roadside scenery, his work, his finances, his criminal history,
his truck purchase, and his aunt and friend in Los Angeles. About seven minutes later, the
dispatcher reported that she was “still not able to get anything to come back, even with
the VIN.” Id. at 11:23–27. She said that the driver’s license was valid and reported
Wiley’s criminal history as a “prior arrest in 2001 for marijuana possession and
paraphernalia possession.” Id. at 11:50–12:15.
Although dispatch had by then reported back on all sought information, the
trooper still kept Wiley in the patrol car while he had the dispatcher call Wiley’s friend
-3-
and aunt. While dispatch made the calls, the trooper quizzed Wiley about his marijuana
conviction, whether he had recently used marijuana, and his recent truck purchase. After
trying to reach the aunt and friend, the dispatcher reported back that she was “getting a
message that it’s a wireless, uh, Verizon wireless cell and that the customer isn’t available
right now.” Id. at 13:38–46, 14:45–53. Only after this did the trooper return Wiley’s
driver’s license and title receipt.4 Seconds later, the trooper reclaimed Wiley’s title
receipt. With it in hand, he went to the truck and confirmed that the VIN on the title
receipt matched the VIN visible on the truck’s dashboard. Having done that, he then
opened the driver’s door, crouched down beside it, and confirmed (unsurprisingly) that
the VIN etched on the inside door frame matched the others.5 After that, the trooper for a
second time returned the title receipt to Wiley, this time telling him to travel safely.
After Wiley had left the patrol car and was walking back to the truck, the trooper
called out to him, requesting permission to ask additional questions. Wiley declined. The
trooper told him he’d be a little bit longer, saying he believed there was criminal activity.
4
During the stop, the trooper mistakenly referred to the receipt of title as the
registration. With Wiley interjecting at points, the trooper said: “Ok. Here’s your
registration back, and your insurance card back, uh, your driver’s license back. I mean, I
pretty much, I just want to make sure it’s, that it’s not stolen. Ok, can I see that real fast,
your registration one more time? I’m going to go up and look at the car, at the VIN
number of the car, and I’ll be right back, ok?” Government’s Ex. 19 at 14:56–15:23. The
trooper testified that he’d taken the title receipt to the truck to verify its VIN against that
etched on the truck.
5
Upon first encountering Wiley at the passenger door window, lowered slightly, the
trooper saw among other things a Febreze air freshener can in the truck. He believed that
this potentially indicated criminal conduct because air fresheners can mask the odor of
drugs. He saw the Febreze can again when he looked through the windshield while
confirming that the VIN on the dashboard matched the VIN on the title receipt.
-4-
After asking Wiley a series of questions, the trooper asked for consent to search the car,
which Wiley refused. He then asked for consent to run the drug dog around the truck, to
which Wiley responded, “No, sir, it’s not all right. I’d like to get going.” Id. at 17:18–22.
The trooper replied that it was “definitely all right,” adding that he had sufficient
suspicion to detain him. Id. at 17:22–28. After the dog alerted, the trooper searched the
truck and found a large sum of cash and a small amount of marijuana.
The government filed a forfeiture action against the cash found during the stop.
Wiley claimed ownership of the money and moved to suppress all evidence obtained
from the search. The district court denied Wiley’s suppression motion, finding that the
“not on file” return justified the stop for a possible registration violation. Further, the
court found that the trooper had reasonable suspicion of drug activity to deploy the drug
dog and that the dog’s alert gave probable cause to search the truck. Wiley appeals the
denial of his motion to suppress.
DISCUSSION
1. Reasonable-Suspicion Principles
“When reviewing a denial of a motion to suppress, this Court accepts the district
court’s factual findings, unless they are clearly erroneous, and views the evidence in the
light most favorable to the government.” United States v. Trestyn, 646 F.3d 732, 741 (10th
Cir. 2011). “[C]redibility of the witnesses and the weight to be given the evidence
together with the inferences, deductions and conclusions to be drawn from the evidence,
are to be determined by the trial judge.” United States v. McSwain, 29 F.3d 558, 561 (10th
-5-
Cir. 1994). “While the existence of reasonable suspicion is a factual determination, the
ultimate determination of the reasonableness of a search and seizure under the Fourth
Amendment is a question of law reviewed de novo.” Trestyn, 646 F.3d at 741.
“[S]topping an automobile and detaining its occupants constitute a ‘seizure’ within
the meaning of [the Fourth Amendment], even though the purpose of the stop is limited
and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653 (1979).
Under Terry v. Ohio, 392 U.S. 1 (1968), “certain seizures are justifiable under the Fourth
Amendment if there is articulable suspicion that a person has committed or is about to
commit a crime.” Florida v. Royer, 460 U.S. 491, 498 (1983). “A routine traffic stop . . .
is more analogous to an investigative detention than a custodial arrest.” Trestyn, 646 F.3d
at 742. When analyzing a traffic stop under Terry, we ask two questions: (1) Was the
officer’s stop justified at its inception? And (2) was it reasonably related in scope to the
circumstances that justified the interference in the first place? Id.
To justify a traffic stop at its inception, an officer must have reasonable suspicion
of criminal activity—“a ‘particularized and objective’ basis for thinking unlawful activity
is afoot.” United States. v. Esquivel-Rios, 725 F.3d 1231, 1236 (10th Cir. 2013) (quoting
United States v. Cortez, 449 U.S. 411, 417 (1981)). “The Fourth Amendment requires
some minimal level of objective justification for making the stop.” United States v.
Sokolow, 490 U.S. 1, 7 (1989) (internal quotation marks omitted). “That level of
suspicion is considerably less than proof of wrongdoing by a preponderance of the
evidence.” Id. But it requires “something more than an inchoate and unparticularized
suspicion or hunch.” United States v. Chavez, 660 F.3d 1215, 1221 (10th Cir. 2011). In
-6-
evaluating the validity of a stop based on reasonable suspicion, the Supreme Court directs
that we consider “the totality of the circumstances—the whole picture.” United States v.
Cortez, 449 U.S. 411, 417 (1981). The government bears “the burden before the district
court of establishing by a preponderance of the evidence that reasonable suspicion
supported the officer’s stop of [a] vehicle.” United States v. Burciaga, 687 F.3d 1229,
1230 (10th Cir. 2012).
When an officer’s reasonable suspicion is dispelled before the officer asks for
driving documents and questions the driver, the officer’s requests for information exceed
the limits of a lawful investigative detention and violate the Fourth Amendment.
McSwain, 29 F.3d at 561–62. “[R]easonable suspicion must exist at all stages of the
detention, although it need not be based on the same facts throughout.” United States v.
Soto-Cervantes, 138 F.3d 1319, 1322 (10th Cir. 1998). In such circumstances, the officer
may explain to drivers “the reason for the initial detention and then allow them to
continue on their way without asking them to produce their driver’s license and
registration.” McSwain, 29 F.3d at 562. The officer may not continue to question the
driver. Id. at 561–62.
In an ordinary traffic stop, the officer has witnessed a traffic violation and thus has
probable cause (not just reasonable suspicion) to detain the driver. In that instance, as part
of the traffic stop, the officer may ask questions about travel plans, “request a driver’s
license and vehicle registration, run a computer check, and issue a citation.” United States
v. Williams, 271 F.3d 1262, 1267–68 (10th Cir. 2001) (speeding violation). But when, as
-7-
here, an officer merely suspects a traffic violation, he may not continue to detain the
driver for these purposes after reasonable suspicion has dissipated.
2. Reasonable Suspicion in This Case
A good place to begin our analysis is by asking what the trooper’s “not on file”
return meant and didn’t mean. It didn’t mean that Wiley had committed a crime—unlike,
say, a trooper’s radar screen showing a speed limit violation. Instead, it meant that for
some reason—criminal or innocent—the database didn’t include Wiley’s license plate.
Innocent reasons would include that Wiley had registered his truck so recently that
Missouri had not yet entered it into its database, or that the trooper’s computer didn’t
have access to Missouri’s database showing Wiley’s valid registration. Criminal reasons
would include that Wiley had a fake or forged plate.
The parties and the district court focused on whether the trooper had reasonable
suspicion of a crime at two discrete times—when he initiated the traffic stop, and when
he detained Wiley to search the truck. This approach failed to appreciate that the
reasonable suspicion requirement continues throughout the entire stop. It is not enough to
have reasonable suspicion at the beginning and then at the end. See United States v. De
La Cruz, 703 F.3d 1193, 1196–98 (10th Cir. 2013). As explained below, I believe that the
initial reasonable suspicion of a registration offense dissipated when the trooper saw or
should have seen the truck’s recently issued, current license plate and registration tab, and
reasonable suspicion that the truck was stolen dissipated when Wiley provided his
“original motor vehicle title receipt” showing that he owned the truck. These events
-8-
occurred long before the trooper built reasonable suspicion of drug-related activity.6
When reasonable suspicion of these possible offenses dissipated, the trooper was
obligated to release Wiley. When the trooper learned (or should have learned) that the
facts no longer gave reasonable suspicion of these possible offenses, the once-valid stop
needed to end. Without reasonable suspicion of a crime, nothing justified further
prolonging the stop. Thus, the trooper had no right to continue to question Wiley in the
patrol car after viewing both his recently registered license plate and registration tab and
his “original motor vehicle title receipt.” And the trooper himself acknowledged that he
had no reasonable suspicion of drug-related activity when he first sat Wiley in the patrol
car.
I agree with the government that the trooper had reasonable suspicion to stop
Wiley upon learning that the truck’s license plate was “not on file.” That gave reasonable
suspicion that the truck may not be validly registered. See Esquivel-Rios, 725 F.3d at
1235 (“This court and others have regularly upheld traffic stops based on information that
the defendant’s vehicle’s registration failed to appear in a law enforcement
database . . . .”); cf. United States v. Cortez-Galaviz, 495 F.3d 1203, 1206 (10th Cir. 2007)
(finding reasonable suspicion when “the state database maintained for the purpose of
recording vehicle insurance information contained no information suggesting that the
owner of the Explorer had insured it”).
6
Had the trooper maintained reasonable suspicion of a crime throughout the stop until
returning Wiley’s driving documents and allowing him to leave, I would agree with Chief
Judge Briscoe for the reasons given in her dissent that the trooper had learned enough by
then to have reasonable suspicion of illegal drug activity.
-9-
But upon stopping Wiley for this possible registration violation, the trooper needed
to investigate why the database had reported the plate as “not on file.” Without
unnecessary delay, the trooper needed to determine whether this “not on file” status arose
from innocent or criminal acts. For the trooper to investigate the suspected crimes
“without unreasonable delay,” I can’t see how he could ignore the very things that could
dispel his reasonable suspicion—the newly issued, current license plate and registration
tab together with Wiley’s “official motor vehicle title receipt.” See Royer, 460 U.S. at 500
(“[T]he investigative methods employed should be the least intrusive means reasonably
available to verify or dispel the officer’s suspicion in a short period of time.”).7 I believe
that had he done so he would have seen that he no longer had reasonable suspicion of a
registration violation. Once he saw that, the trooper could only advise Wiley why he’d
been stopped and allow him to proceed on his way.
Although none of our “display of registration” cases involved searches for
registrations on computer databases, they still guide us about an officer’s need to
investigate the suspected violation to keep an initial reasonable suspicion valid. See
Trestyn, 646 F.3d at 743 (“Once [the trooper] approached the minivan on foot, he
reasonably could have observed the registration number on the minivan’s license plate.”);
7
I agree with Judge Ebel that this Royer quotation is directed at the need to minimize
the length of the stop. Ebel Concurrence at 2–3. I think that to timely investigate the
suspected offenses the trooper needed to examine—sooner rather than later—the key
evidence that could dispel reasonable suspicion of the suspected crimes. In the context of
this case, the trooper needed to look at the license plate, its registration tab, and the
“official motor vehicle title receipt.” I don’t contend that the trooper needed to examine
the license plate and registration tab before making the stop (as opposed to after the stop
had begun). Id.
- 10 -
United States v. Edgerton, 438 F.3d 1043, 1051 (10th Cir. 2006) (“Once [the trooper] was
able to read the Colorado tag and deem it unremarkable, any suspicion that Defendant
had violated [Kansas law] dissipated . . . .”); McSwain, 29 F.3d at 561 (“[The trooper]
stopped Mr. McSwain for the sole purpose of ensuring the validity of the vehicle’s
temporary registration sticker. Once [the trooper] approached the vehicle on foot and
observed that the temporary sticker was valid and had not expired, the purpose of the stop
was satisfied.”).8
Even though it was obvious that Missouri had issued Wiley’s license plate and
registration tab no earlier than September 1, 2008 (a mere two weeks before the stop),
and even though Wiley immediately explained the “not on file” report by providing his
“original motor vehicle title receipt” showing that he had bought the truck a week before
the stop, the government contends that the trooper always had reasonable suspicion that
the truck wasn’t legally registered and might be stolen. In support, it points to the
trooper’s testimony that the “not on file” status raised a “laundry list” of possible criminal
acts. In fact, the trooper’s list was a short one, with just two stated possibilities—that the
license plate could be from the truck’s previous owner, or that the truck could be stolen.
Elsewhere, while explaining why he had not looked at the “registration number on the
license plate,” the trooper said, “You know, my experience has been with license plates,
those stickers are easily torn off and put on other vehicles.” Appellant’s App. at 154–55. I
8
I agree that these cases are not dispositive because none of them had the added
feature of a “not on file” return. Their relevance is just as stated—they stand in part for
the proposition that when troopers make stops based on suspected registration-related
violations they can’t stretch out their stops by ignoring evidence of valid registration.
- 11 -
will treat this as raising a third criminal possibility—that Wiley may have removed a
registration tab from someone else’s Missouri plate and attached it to his own. I am
unpersuaded that the government met its burden to show that any of these bases provided
reasonable suspicion from the beginning of the stop until the dog’s sniff of the outside of
Wiley’s truck. I note that while the trooper concluded that these suspected violations
corresponded to a “not on file” return, he never explained how they did so.9
Before addressing the three offenses for which the government claims the trooper
had reasonable suspicion throughout the entire stop, I pause to note two possible offenses
the government doesn’t rely upon.
First, the government doesn’t contend that the trooper had reasonable suspicion that
the plate or registration tab were forgeries. This is understandable after viewing the video
of the stop—the trooper exhibited no concern that the plate or tab might be forgeries.
While a “no return” from a computer database might well give reasonable suspicion of a
forged temporary tag, see Esquivel-Rios, 725 F.3d at 1234–35, the trooper’s own conduct
here shows that it didn’t give him reasonable suspicion that Wiley’s metal plate and
registration tab were forged.
Second, the government doesn’t contend that the trooper had reasonable suspicion
that the plate may have expired. The 2009 registration tab was affixed to the plate. And,
9
I note that the district court never found that the trooper had reasonable suspicion of
a stolen truck or of illegally borrowed or stolen plates. Instead, the district court generally
concluded “that the stop of Mr. Wiley was justified at its inception and finds that the
traffic stop was valid and legal based on reasonable suspicion of a motor vehicle
violation.” United States v. $85,688.00, No. 2:09-CV-00029-DS, 2010 WL 1257634, at
*3 (D. Utah Mar. 25, 2010).
- 12 -
in Missouri, “[a] tab or set of tabs issued by the director of revenue when attached to a
vehicle in the prescribed manner shall be prima facie evidence that the registration fee for
such vehicle has been paid.” Mo. Rev. Stat. § 301.130(6)(3). The Utah statute that the
trooper was enforcing exempted from any registration requirement any “vehicle
registered in another state and owned by a nonresident of the state.” Utah Code Ann. §
41-1a-202(2)(a). I now turn to the three offenses the government contends justified the
trooper’s prolonged investigation. The government argues that these possible violations
gave the trooper reasonable suspicion to continue the stop until the trooper returned all of
Wiley’s documents and released him.
First, the government contends that the trooper had reasonable suspicion that Wiley
was using the plate of the truck’s previous owner without reregistering it. Even had Wiley
been driving a truck still carrying his seller’s plate and registration, I see nothing in the
record showing that a computer database search would have returned “not on file” rather
than returning the seller’s name. And even had Wiley’s seller canceled his registration
and unlawfully left the plate with Wiley, I see nothing in the record showing that a
computer database search would have returned “not on file” rather than “unregistered.”
But even if the circumstances gave reasonable suspicion of a registration crime,
that suspicion would quickly have dissipated. Even glancing at the Missouri plate on his
way by, the trooper would have seen its new condition—shiny, clean, unbent, and
unscratched. Had he looked more carefully (actually investigated the crimes he
reasonably suspected), he would have seen that the plate bore a permanent mark of
- 13 -
“SEP” (for September) as well as a conspicuous yellow registration tab numbered “09”
(for year 2009).10 He wasn’t free to ignore this significant information.
Objectively, the trooper should have known that the Missouri plate was issued in
September (“SEP” on the plate) and expired a year later in September 2009. Because the
license plate and tag had just been issued (which may have contributed to the trooper’s
confusion that it was a new truck), it was unsurprising that the plate was shiny new and
that the 2009 registration tab showed no portion of an earlier registration tab underneath
it.
Because the plate and tag were no more than two weeks old, it made little sense
that Wiley might have been driving on the previous owner’s plates and registration. That
could occur only in the highly unlikely circumstance where the previous owner had paid
to register the truck for a year and then within hours or days sold it to Wiley. See United
States v. Stephenson, 452 F.3d 1173, 1176 (10th Cir. 2006) (in measuring reasonable
suspicion we evaluate an officer’s conduct “in light of common sense and ordinary
human experience”). Moreover, suspicion of this crime would leave unexplained why the
computer database didn’t still have the plate registered under the previous owner’s name.
What does make sense is that newly issued registrations take some time to be entered into
motor vehicle databases. The trooper himself brought this up as a reasonable explanation.
10
Because of the small size of the numbers, the trooper understandably didn’t see the
“09” sticker when he called in the larger numbers on the license plate. But with the truck
stationary before him, the trooper could not miss the registration tab or ignore its
significance.
- 14 -
Reading broadly a single sentence in the government’s brief, I think that the
government might be suggesting that the trooper had a right to detain Wiley to run his
VIN in a further effort to track the registration. Specifically, it said that “[e]ven after
inputting the truck’s VIN through its computer system, dispatch could not find a
registration.” Appellee’s Br. 5. If, by this, the government means that the trooper had a
right to extend the stop for this additional database search, I must disagree for all the
reasons above—by then reasonable suspicion of a registration violation had dissipated.
In addition, I wonder how the VIN search even supported the trooper’s
investigation about the validity of the truck’s plate and registration tab. First, the
government offered no testimony that VIN searches turn up more complete information
than do license-plate searches. And, second, even if this VIN search had showed the plate
“unregistered,” that would hardly have given probable cause to issue a citation for a
registration offense when the truck bore a valid Missouri plate and active registration tab.
Absent probable cause of a criminal violation, the trooper would have been left in the
same position as he was with the “not on file” return—lacking any basis to hold or cite
Wiley and needing to release him.
Second, the government contends that the “not on file” report gave the trooper
reasonable suspicion that the truck might be stolen. The problem here is that the
government has not explained why a plate’s “not on file” status would correspond to an
automobile’s being stolen. When an automobile is stolen, its plate surely remains of
record. Officers have a vital interest in knowing what automobiles are stolen before
approaching them. The government has failed to show that stolen automobiles would be
- 15 -
more apt to return “not on file” than to return “registered” or “unregistered.” I see nothing
suggesting that stealing a car, or even a plate,11 would erase its previous database entry.
Moreover, Wiley provided the trooper an “original motor vehicle title receipt” showing
that he owned the truck. Nowhere did the trooper ever suggest that he thought this
document was anything but legitimate. In fact, the trooper testified otherwise, saying “I
didn’t have a violation. I believed the vehicle belonged to him and he had the proper
paperwork, and I’m not going to write a ticket for nothing.” Appellant’s App. at 140.
Along the same lines, the district court found that the title receipt “showed that [Wiley]
had recently purchased the vehicle for $5,000.” United States v. $85,688.00, No. 2:09-
CV-00029-DS, 2010 WL 1257634, at *1 (D. Utah Mar. 25, 2010).
Third, although I am unsure whether the government asserts this as a basis on appeal,
I address the trooper’s testimony that registration “stickers are easily torn off and put on
other vehicles.” Appellant’s App. at 155. I read this as the trooper’s saying that he might
have had reasonable suspicion that Wiley removed the “09” registration tab from
someone else’s plate and put it on his own. I’m unpersuaded. First, the trooper’s lack of
interest in the registration tab at the roadside strongly suggests that he didn’t think that
anyone had altered or tampered with the tab. Second, the photo of the plate shows that the
tab was in an undamaged, pristine condition. And, third, as earlier explained, the plate
was newly issued two weeks before the stop, so Missouri would have issued the plate
11
I see nothing in the record supporting a conclusion that a stolen plate would yield a
“not on file” return. For the same officer-safety reasons explained above, the plate would
likely show as stolen, and, if not, would return registered to a different automobile—a
tipoff that the automobile itself was stolen. Nothing like that happened here.
- 16 -
with the 2009 tab on it. Accordingly, Wiley would have had no reason to scavenge for a
tab to steal and stick to his newly issued plate.
In making these conclusions, I simply apply our rule that a stop must end when
reasonable suspicion dissipates. Here, the trooper no longer had reasonable suspicion of a
registration violation after seeing the current license plate and registration tab, and he no
longer had any reasonable suspicion that the truck was stolen after receiving the “original
motor vehicle title receipt” showing that Wiley owned the truck. Any vestige of suspicion
after that wasn’t reasonable suspicion, but instead conceivable suspicion—otherwise best
characterized as insufficient suspicion.
3. What Issues Are Properly Before Us For Decision
The dissent says that I am reversing the district court’s judgment on “an issue never
presented by Wiley to, nor resolved by, the district court: whether Trooper Neff’s
suspicion of a temporary violation should have dissipated after Wiley, while sitting in
Trooper Neff’s patrol vehicle, provided Neff with ‘the original motor vehicle receipt’ for
Wiley’s truck.” Dissent at 7. It goes on to say that I have “inject[ed a] new issue[] into the
case at this late juncture.” Id. at 8. As I understand it, the “new issue” is what effect
Wiley’s presenting the trooper with the “original motor vehicle title receipt” had when
considered under our rule that reasonable suspicion must exist throughout the entire stop.
By considering the title receipt, I do no more than Wiley did below. In his
memorandum supporting his motion to suppress, Wiley stated that he had “produced a
title for the vehicle that showed that [he] had recently purchased the vehicle for $5,000.”
- 17 -
Memorandum of Law in Support of Motion to Suppress Evidence at 2, $85,688.00, 2010
WL 1257634 (No. 2:09-CV-00029-DS, ECF No. 30). Wiley reasserted this point at the
suppression hearing. There he vigorously cross-examined the trooper about the title
receipt and how it showed that he owned the truck—contesting the new argument that the
trooper had reasonable suspicion that the truck was stolen.12 See Appellant’s App. at
134–36, 154. If Wiley wasn’t raising the importance of the title receipt as part of his
challenge to reasonable suspicion, I don’t know what else he was doing.
I agree that Wiley could have more specifically argued this point below and on appeal.
In response to the dissent’s criticism for considering the effect of the title receipt on
appeal, I can only point to Wiley’s issue statement where, he says, in the district court he
had “contended that his Fourth Amendment rights were violated by the officer who
stopped his vehicle, detained him without consent, and searched his vehicle.” Appellant’s
Br. at 2. While “violation of Fourth Amendment rights” is indeed a broad claim, I do see
that Wiley later contended that his “papers satisfied [the trooper] that the vehicle was not
stolen and that there was no violation for which [the trooper] could issue any ticket.” Id.
at 8 n.11. Everything considered, I feel the issue of the title receipt was raised sufficiently
to fairly consider it on appeal.
12
I see nothing in the government’s memorandum filed before the suppression
hearing arguing that the trooper had reasonable suspicion of a stolen truck. Instead, I see
the government acknowledging that “[t]he title showed that claimant had recently
purchased the truck for $5,000.” Memorandum of Plaintiff in Opposition to Claimant’s
Motion to Suppress Evidence at 2, $85,688.00, 2010 WL 1257634 (No. 2:09-CV-00029-
DS, ECF No. 31).
- 18 -
I can’t agree with the dissent that Wiley’s allegedly failing to raise the title receipt
issue sufficiently in the district court has prejudiced the government by inducing it not to
broaden its litigation strategy there. Dissent at 8. As seen by its memorandum in the
district court, the government acknowledged that the title receipt showed Wiley owned
the truck: “[Wiley] did not have a vehicle registration for the truck, but instead handed
Trooper Neff the vehicle title to the truck. The title showed that [Wiley] had recently
purchased the truck for $5,000.” See Memorandum of Plaintiff in Opposition to
Claimant’s Motion to Suppress Evidence at 2, $85,688.00, 2010 WL 1257634 (No. 2:09-
CV-00029-DS, ECF No. 31). The district court found that the title receipt “showed that
[Wiley] had recently purchased the vehicle for $5,000.” $85,688.00, 2010 WL 1257634,
at *1. Neither erred. The title receipt showed what it showed.
In view of this, I can’t see any prejudice. The trooper himself testified that the title
receipt had led him to believe that Wiley was the true owner of the truck. Admittedly, the
trooper may have later backpeddled some from this testimony. While acknowledging that
he didn’t believe the truck was stolen, the trooper said that he still checked the VIN
number on the title receipt against the VIN etched into the truck. The dissent
characterizes this as the trooper’s attempting “to resolve his concerns regarding whether
the vehicle was stolen.” Dissent at 9. In rejecting this, I consider three things. First, the
trooper’s comparing the VIN numbers came as an afterthought—in fact, he had to
reobtain the title receipt from Wiley after almost sending him on his way. Second,
checking the VINs on the truck had an incidental benefit—the trooper, who suspected
illegal drug activity, was then able to look into the truck’s windows and open the driver’s
- 19 -
door. Already concerned about the air freshener being used to mask the odor of drugs, the
trooper then could do his own sniff after he’d opened the door.
I can’t stretch it enough to treat the last-second VIN comparison as showing
reasonable suspicion of a stolen truck. The trooper, wisely, didn’t suggest that Wiley may
have forged his title receipt and used a different VIN than etched on the truck (keeping in
mind that the trooper testified the title receipt appeared to be an official document from
the State of Missouri). Nor did he seek to stretch it even further by suggesting that while
the title receipt appeared valid Wiley may have stolen a truck made the same year, with
the same make, model, and color as the one listed on the title receipt. At some point,
reasonable suspicion loses its reasonableness. Third, if the trooper reasonably suspected
that the truck may be stolen, I can’t see why he would wait so long before checking to see
if the VINs matched. Rather than promptly doing that, he instead prolonged the stop to
question Wiley in the patrol car while building a separate reasonable suspicion of illegal
drug activity.
- 20 -
No. 13-4067, United States v. $85,688.00
BRISCOE, Chief Judge, dissenting.
Focusing on the issues actually raised in this proceeding by Wiley, and adhering to
the deferential standards of review that we are bound to apply in a case like this, I
conclude that the district court properly denied Wiley’s motion to suppress.
Consequently, I dissent from the majority’s decision to reverse and remand.
I
Because they are critical to the resolution of this appeal, I begin by outlining the
procedural history of this case and the standard of review we must apply to the district
court’s decision.
A. Procedural history
Approximately four months after the stop and search of Wiley’s vehicle, the
government filed a verified complaint for forfeiture in rem pursuant to 21 U.S.C. §
881(a). The defendant property was the $85,688.00 in United States currency that was
seized from Wiley’s vehicle. The government’s complaint alleged that “the Defendant
property [wa]s subject to forfeiture . . . because it was used to commit, facilitate, was
involved in or was proceeds of the commission of violations of 21 U.S.C. §§ 841(a)(1)
and 844(a).” Dist. Ct. Docket No. 1 (Complaint) at 2.
Wiley responded by filing a claim for interest in the defendant property and an
answer to the government’s complaint. He in turn moved to suppress “all evidence
obtained as a result of the traffic stop of his vehicle.” Dist. Ct. Docket No. 29 at 2. In his
memorandum in support of his motion to suppress, Wiley conceded that
Trooper Neff may have initially complied with the Terry standards as
interpreted by the Tenth Circuit: after running a check on [Wiley’s] vehicle
and his documents, Neff apparently did not issue a warning citation,
returned [Wiley’s] paperwork and told him to “[h]ave a nice day.”
Dist. Ct. Docket No. 30 at 9. But, Wiley argued, Trooper Neff “at this point and
consistent with his own words, should have permitted [Wiley] to proceed on his way and
have a nice day without further delay for additional questioning.” Id. at 9-10. In other
words, Wiley argued, Trooper “Neff needed to, but did not, have an objective and
reasonable factual basis to justify any further detention or further investigation.” Id. at
10.
After conducting an evidentiary hearing during which the government presented
testimony from Trooper Neff, the district court denied Wiley’s motion to suppress. In
doing so, the district court concluded that, “under the totality of the circumstances, . . .
Trooper Neff had an objectively reasonable suspicion,” at the time he returned Wiley’s
documents and told him he was free to go, that “Wiley was involved in criminal drug
trafficking activity.” App. at 26. And “[t]hat suspicion,” the district court concluded,
“warranted . . . Wiley’s further detention beyond the investigation of the traffic stop.” Id.
at 30.
On May 19, 2011, Wiley moved the district court to reconsider its ruling on his
motion to suppress. Citing this court’s then-recently-issued decision in United States v.
Trestyn, 646 F.3d 732 (10th Cir. 2011), Wiley argued for the first time “that the purpose
of the traffic stop premised on suspicion of a registration violation was satisfied when . . .
2
Trooper Neff approached . . . Wiley’s vehicle on foot and reasonably could have observed
that the registration tag displayed a currently registered out of state vehicle.” Dist. Ct.
Docket No. 77 at 2. On July 20, 2011, the district court issued a memorandum decision
and order denying Wiley’s motion to reconsider. The district court concluded that
Wiley’s “reliance on” Trestyn was “misplaced in that Trestyn [wa]s easily distinguishable
from” Wiley’s case. App. at 32.
On March 27, 2013, the government and Wiley filed a joint motion for final
judgment and order of forfeiture. The motion specifically asked the district court “to
issue an unopposed order . . . forfeiting defendant . . . currency . . . to the United States,
with claimant [Wiley] reserving his right to appeal the Court’s denial of his motion to
suppress evidence.” Dist. Ct. Docket No. 108 at 1. The district court granted the parties’
motion and entered a final judgment and order of forfeiture that same day. App. at 35-38.
Wiley filed a notice of appeal on April 29, 2013.
B. Standard of review
“When reviewing a denial of a motion to suppress, this Court accepts the district
court’s factual findings, unless they are clearly erroneous, and views the evidence in the
light most favorable to the government.” United States v. Trestyn, 646 F.3d 732, 741
(10th Cir. 2011). “While the existence of reasonable suspicion is a factual determination,
the ultimate determination of the reasonableness of a search and seizure under the Fourth
Amendment is a question of law reviewed de novo.” Id.
3
II
I now turn to address the three issues raised on appeal by Wiley, as well as a new
issue raised and resolved by Judge Phillips in his concurrence.
A. Did Trooper Neff have a valid basis for the initial stop?
Wiley argues for the first time in his appellate reply brief that our recent decision
in United States v. Esquivel-Rios, 725 F.3d 1231 (10th Cir. 2013) “shows that . . . the
initial stop [in this case] was illegal because Neff was not entitled to rely solely on an
unreliable database.” Aplt. Reply Br. at 23 (capitalization altered). I summarily reject
this argument. To begin with, we generally do not consider arguments raised for the first
time in a reply brief. E.g., Mays v. Colvin, 739 F.3d 569, 576 n.3 (10th Cir. 2014). And,
even if we were to consider the argument, nothing in the record calls into question the
reliability of the database used by Trooper Neff or the dispatcher. As a result, Wiley’s
case is clearly distinguishable from Esquivel-Rios.
B. Should Trooper Neff’s suspicion of a registration violation have
dissipated when he walked past Wiley’s license plate?
Wiley argues, as he did in asking the district court to reconsider its ruling on his
motion to suppress, that “whatever objective suspicion of a registration violation
developed by [Trooper] Neff [should have] dissipated when he walked past Wiley’s
license plate which clearly displayed a valid registration sticker, requiring Neff to allow
Wiley to be on his way.” Aplt. Br. at 14. In support, Wiley again points to our decision
in Trestyn.
4
Trestyn and the two cases upon which it was based, United States v. McSwain, 29
F.3d 558 (10th Cir. 1994), and United States v. Edgerton, 438 F.3d 1043 (2006), all
involved traffic stops that originated because of a law enforcement officer’s inability to
observe, from a distance, whether the vehicle in question was properly licensed. In
McSwain, a Utah Highway Patrol trooper patrolling Interstate 70 observed that the
defendant’s vehicle did not have a rear or front license plate, and that the temporary
registration sticker appeared to be covered with reflective tape. In Edgerton, a Kansas
Highway Patrol trooper on nighttime patrol observed that the defendant’s car “did not
have a license plate in its rear brackets, but displayed a plate-sized temporary registration
tag in the rear window,” and he “could not read the state of origin or the numbers of the
tag from a distance of four to five car lengths.” 438 F.3d at 1045 (internal quotation
marks omitted). And in Trestyn, a Wyoming Highway Patrol trooper was patrolling a
section of Interstate 80 and observed a “minivan traveling eastbound displaying a rear
California license plate but no front license plate.” 646 F.3d at 736. Because the trooper
“knew that California law require[d] vehicles to display both front and rear license
plates,” id., he stopped the minivan “for the sole purpose of determining whether the
minivan violated Wyoming Statute section 31-2-201(d)(vi), which require[d] vehicles
traveling in Wyoming but registered in another state to display either registration numbers
or license plates in accordance with that state’s laws,” id. at 743.
We held, in each of these cases, that the singular purpose of the stop either was or
should have been effectuated by the officer conducting a closer visual inspection of the
5
vehicle’s license plate or temporary registration tag. McSwain, 29 F.3d at 561 (“Once
Trooper Avery approached the vehicle on foot and observed that the temporary sticker
was valid and had not expired, the purpose of the stop was satisfied.”); Edgerton, 438
F.3d at 1051 (“Once Trooper Dean was able to read the Colorado tag and deem it
unremarkable, any suspicion that Defendant had violated [Kansas state law] dissipated”);
Trestyn, 646 F.3d at 743 (“Once Trooper Nykun approached the minivan on foot, he
reasonably could have observed the registration number on the minivan’s license plate”
and “should have known that [defendants] did not violate [Wyoming state law]”).
These holdings make perfect sense: when reasonable suspicion for a traffic stop
arises from a law enforcement officer’s distant visual observations of a vehicle’s license
plate or registration tag, the simplest and best method to confirm or dispel the suspicion is
to visually examine the license plate or registration tag at closer range. In other words, a
closer visual inspection of the license plate or temporary tag has the potential to
“completely dispel[]” the officer’s “reasonable suspicion regarding the validity of” the
license plate or tag. McSwain, 29 F.3d at 561.
Wiley never explains how, precisely, these holdings have relevance to the case at
hand, and I submit they do not. It is undisputed that Trooper Neff’s reasonable suspicion
in this case arose not from any difficulty he had in visually observing Wiley’s vehicle or
license plate, but rather from the results of two law enforcement computer database
searches (one performed by Trooper Neff from his patrol car and the second performed
by a dispatcher at Trooper Neff’s request). And, in turn, Trooper Neff’s reasonable
6
suspicion was not limited to the possibility of a registration violation, but rather included
the possibilities that Trooper Neff listed in his testimony: that Wiley was using the license
plate of the former owner of the vehicle, that the vehicle driven by Wiley was stolen, or
that Wiley had stolen valid registration tabs from someone else’s license plate.
In short, I conclude that Trestyn, McSwain, and Edgerton are factually, as well as
legally, distinguishable from the case at hand. Consequently, the principles outlined in
these cases simply do not provide any useful guidance in the circumstances presented
here, let alone justify a conclusion that Trooper Neff’s reasonable suspicions could have
been dissipated simply by examining the license plate of Wiley’s truck.
C. Should Trooper Neff’s suspicion of a registration violation have
dissipated after Wiley provided him with the original motor vehicle title
receipt?
Judge Phillips would reverse the judgment of the district court on the basis of an
issue never presented by Wiley to, nor resolved by, the district court: whether Trooper
Neff’s suspicion of a registration violation should have dissipated after Wiley, while
sitting in Trooper Neff’s patrol vehicle, provided Neff with the “original motor vehicle
receipt” for Wiley’s truck.1 Judge Phillips justifies doing so because, in his view, the
“approach” taken by “[t]he parties and the district court” below “failed to appreciate that
the reasonable suspicion requirement continues throughout the entire stop.” Phillips
Concurrence at 8 (emphasis in original).
1
I note here that Wiley did not have a vehicle registration form for the 2002
Toyota Tundra pickup truck he was driving and the GEICO EVIDENCE OF
INSURANCE document he provided Trooper Neff was for a 1999 Honda Accord.
7
But Wiley has been represented by counsel throughout these proceedings, and his
counsel presumably made a strategic decision to challenge the search of Wiley’s vehicle
and the seizure of the currency based upon the specific arguments that he made to the
district court. In turn, the government’s litigation strategy, including the precise
questions it chose to pose to Trooper Neff during the suppression hearing, were
presumably fashioned to respond to Wiley’s arguments.2 Because these strategic
decisions effectively framed the record, the district court’s decision, and the scope of this
appeal, it is not our place to start from scratch, reexamine the case, and decide for
ourselves what issues we believe are important and should have been raised.
In any event, even if we were free to inject new issues into the case at this late
juncture, I would disagree with Judge Phillips that Trooper Neff’s reasonable suspicion of
a registration violation dissipated entirely at the point at which Wiley handed the
“original motor vehicle receipt” to Trooper Neff. Viewing the evidence in the record in
the light most favorable to the government, I note that Trooper Neff specifically
expressed a concern that the vehicle driven by Wiley might have been stolen, and the
provision by Wiley of the “original motor vehicle receipt” would not necessarily have
2
Judge Phillips criticizes the government for failing to “me[e]t its burden to show
that . . . reasonable suspicion [existed] from the beginning of the stop until the dog’s sniff
of the outside of Wiley’s truck.” Phillips Concurrence at 12. But I would suggest that,
given the narrow scope of the issues raised by Wiley in his motion to suppress, the
government was, appropriately enough, unaware that it was operating under any burden
to explain precisely every step that Trooper Neff took during the course of the stop. Had
Wiley argued the issue now raised by Judge Phillips, the government almost certainly
would have broadened the scope of its direct examination of Trooper Neff during the
suppression hearing.
8
resolved that concern. Indeed, Trooper Neff testified under cross-examination at the
suppression hearing, when asked about the “original motor vehicle receipt,” that he
“needed to be able to verify the VIN numbers on the vehicle to make sure that this truck .
. . matched to” the receipt. App. at 136. And, in fact, the record indicates that, near the
end of the stop, Trooper Neff attempted to resolve his concerns regarding whether the
vehicle was stolen by comparing the VIN numbers listed on the “original motor vehicle
receipt” to the VIN numbers that were actually on Wiley’s truck. In my view, it was not
until after that time that Trooper Neff’s reasonable suspicion regarding the rightful
ownership of the vehicle was entirely dissipated.
D. Did Trooper Neff, at the conclusion of the traffic stop, have reasonable
suspicion that Wiley was engaged in drug trafficking?
Finally, Wiley argues that his case “is indistinguishable from” United States v.
Wood, 106 F.3d 942 (10th Cir. 1997) because his “detention . . . after the completion of
the traffic stop was not supported by objective facts amounting to reasonable suspicion of
any crime, let alone the specific crime of drug trafficking.” Aplt. Br. at 14. For the
reasons that follow, I reject this argument.
“Absent valid consent, the scope or duration of an investigative detention may be
expanded beyond its initial purpose only if the detaining officer at the time of the
detention has a particularized and objective basis for suspecting the particular person
stopped of criminal activity.” Wood, 106 F.3d at 946. “[O]nce an officer returns the
driver’s license and vehicle registration” and advises the driver he or she is free to go, “he
9
must allow the driver to proceed without further detention or questioning unless the
officer has an objectively reasonable and articulable suspicion that the driver is engaged
in illegal activity.” United States v. Lyons, 510 F.3d 1225, 1237 (10th Cir. 2007). We
look to the totality of the circumstances in evaluating whether the officer had an
objectively reasonable basis to prolong the detention. Id. “This process allows officers to
draw on their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that might well elude an
untrained person.” United States v. Santos, 403 F.3d 1120, 1134 (10th Cir. 2005).
The government in this case points to several factors that it asserts “provided . . .
[Trooper] Neff with reasonable suspicion of drug trafficking and justified prolonging the
stop.” Aplee. Br. at 22. I shall proceed to address these factors, first individually, and
then collectively.
1) Wiley’s purported travel plans.
“We have held that implausible or contradictory travel plans can contribute to a
reasonable suspicion of illegal activity.” United States v. Zubia-Melendez, 263 F.3d
1155, 1162 (10th Cir. 2001). In this case, Wiley did not offer any contradictory
statements about his travel plans. Rather, he consistently told Trooper Neff that he was
driving from his home in Missouri to southern California to visit an aunt and some
friends. But Trooper Neff found two aspects of Wiley’s story unusual, if not implausible.
First, Trooper Neff thought it was unusual that Wiley had detoured from I-70 north to I-
80 in Colorado in order to view the scenery in Wyoming on I-80. Second, Trooper Neff
10
thought it was implausible that Wiley was driving west out of Salt Lake City on I-80 to
his purported destination in southern California. That is because I-80 runs through both
northern Utah and northern Nevada and leads not to southern California but rather to San
Francisco, California. And based on his training and experience, Trooper Neff was aware
that I-80 is considered to be a major route for the cross-country transportation of drugs
and large sums of money, and that northern California and the San Francisco Bay area are
known sources of high-grade marijuana. Consequently, I conclude that we must consider
Wiley’s travel plans as a factor towards reasonable suspicion.
The government also notes that Trooper Neff testified at the suppression hearing
that he was suspicious of Wiley’s story that he was traveling to southern California in
order to help out an elderly aunt. According to Trooper Neff, he had previously
encountered people involved in criminal activity who had said they were traveling to visit
a sick relative, and in Trooper Neff’s view it is a “tactic . . . that they use . . . to persuade
law enforcement as to, you know, I’m a good person; this is what I’m going to go do.”
App. at 90.
I am not persuaded, however, that we must defer to Trooper Neff’s judgment on
this particular factor. As we have noted, “[s]ome facts must be outrightly dismissed as so
innocent or susceptible to varying interpretations as to be innocuous.” United States v.
Simpson, 609 F.3d 1140, 1147 (10th Cir. 2010) (quotation marks omitted). Nothing
about traveling to assist a relative is inherently implausible, nor does it lend itself in any
way to a particular suspicion about criminal conduct. Consequently, I afford this fact no
11
weight in terms of assessing reasonable suspicion.
2) Wiley’s criminal history and Wiley’s failure to admit that history.
Criminal history, in conjunction with other factors, “contributes powerfully to the
reasonable suspicion calculus.” Id. (quotation marks and italics omitted). “Although a
person with a criminal record could not be pulled over or detained based on the record
itself, such a record is one factor that may justify further detention and that may cast a
suspicious light on other seemingly innocent behavior.” Id.
In this case, Trooper Neff learned through dispatch that Wiley had a prior
conviction for marijuana possession, as well as a paraphernalia-related conviction.
Notably, that information contradicted Wiley’s statement to Trooper Neff that he only
had a prior DUI conviction. We have held that “lies, evasions or inconsistencies about
any subject while being detained may contribute to reasonable suspicion.” Id. at 1149.
Together then, these two factors, i.e., the fact that Wiley had a prior drug-related
conviction and Wiley’s apparent concealment of that conviction from Neff, “weigh[]
heavily in favor of finding reasonable suspicion.” Id. at 1147.
3) The appearance and contents of Wiley’s truck.
The government points to what it believes are several incriminating aspects of the
appearance and contents of Wiley’s truck.
a) Passenger window
The government first notes that when Trooper Neff initially approached the
passenger side of Wiley’s truck, Wiley rolled the passenger side window down a mere
12
three or four inches. Trooper Neff testified at the suppression hearing that, based upon
his experience, there could have been innocent reasons for this action, such as a broken
window, or suspicious reasons, such as the driver wanting to hide the odor of something
incriminating inside the vehicle, such as drugs. App. at 78. I conclude that this factor
weighs somewhat in favor of reasonable suspicion, at least when it is considered in
conjunction with the can of Febreze air spray that was found in the passenger
compartment of the truck (a factor that is discussed in greater detail below). See United
States v. Ludlow, 992 F.2d 260, 264 (10th Cir. 1993) (affirming district court’s denial of
motion to suppress, which was based in part on a finding that the driver “did not roll [his]
window all the way down,” thereby “rais[ing] the suspicion that there was an odor in the
car that the driver did not want out”).
b) Presence of Febreze can
When Trooper Neff opened the passenger side door of Wiley’s truck to speak with
Wiley (as a result of being unable to communicate with Wiley due to Wiley only rolling
the passenger side window down 3 to 4 inches), he observed inside the passenger
compartment of the truck a can of Febreze air spray. Trooper Neff testified that his law
enforcement training taught him that drug traffickers frequently use odor-masking agents,
such as Febreze, to attempt to conceal the odor of narcotics. And, Trooper Neff testified,
consistent with that training, he frequently sees defendants in marijuana and
methamphetamine cases using Febreze or air freshener sheets as odor-masking agents.
As a result, Trooper Neff viewed the presence of the Febreze can in Wiley’s truck as an
13
“indicator” of possible criminal conduct. App. at 56.
We have consistently acknowledged that the presence of an odor masking agent,
such as Febreze, may give rise to reasonable suspicion on the part of law enforcement
officials that the agent “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. West, 219 F.3d 1171,
1178-79 (10th Cir. 2000) (“The Tenth Circuit has consistently held that the scent of air
freshener is properly considered as a factor in the probable cause analysis.”). Thus, I
conclude that the presence of the Febreze can in this case must be weighed in favor of
finding reasonable suspicion.
c) Energy drink and coffee mug
Trooper Neff also observed on the front passenger seat of Wiley’s truck a large
container of energy drink mix and a coffee mug. Based upon his law enforcement
training, Trooper Neff viewed these two items as indicators of possible criminal conduct.
At the suppression hearing, Trooper Neff testified that both items indicated to him “that
this driver wants to stay awake.” App. at 85.
The problem, as Trooper Neff himself conceded at the suppression hearing, is that
such items are commonly used by all drivers, not just individuals involved in criminal
activity. And, indeed, in Simpson we “g[a]ve little weight” to the presence of “energy
pills” in the defendant’s vehicle because, we noted, it is “likely to find such items in the
vehicle of any traveler.” 609 F.3d at 1152. I therefore follow a similar path in this case
and afford little or no weight to the presence of the energy drink mix and the coffee mug
14
in Wiley’s truck.
4) Wiley’s recent truck purchase.
The government notes that Trooper Neff, and in turn the district court, also relied
on the fact that Trooper Neff believed that Wiley’s truck was new and worth more than
the price Wiley reported having paid.
During the suppression hearing, Trooper Neff testified that Wiley’s truck appeared
to him to be new. App. at 137. But Trooper Neff subsequently conceded, and a review of
the video of the stop confirms, that Wiley correctly informed him that the truck was a
2002 model with nearly 68,000 miles on it. During the stop, Trooper Neff learned from
Wiley’s paperwork that Wiley had paid $5,000 for the truck. Tr. of Stop at 9 (“So you
bought this for 5,000 bucks?”). Trooper Neff then asked Wiley, “Wow, where did you
get that kind of deal?” Id. at 9-10. Wiley proceeded to explain that the market for such
trucks had “collapsed” and that the owner, who was a neighbor, “needed to get rid of it.”
Id. at 10. When Trooper Neff asked “[H]ow much does this [truck] retail for?,” Wiley
responded, “You know, they’re advertising them for, like, seven or eight [thousand],
depending on where they’re at. But they’re not selling and everything’s sitting.” Id. At
the suppression hearing, Trooper Neff testified that he did not believe that $5,000 was the
true value of the truck. App. at 176. Trooper Neff further testified that, in his experience,
drug trafficking organizations purchase vehicles at low cost for drug runners to use. Id.
Consequently, Trooper Neff testified that this was a factor that supported his reasonable
suspicion that Wiley was engaged in illegal activity. Id.
15
I conclude that this factor carries no weight. Although Trooper Neff expressed
skepticism at the suppression hearing that $5,000 was the true value of the truck, the only
relevant evidence in the record on the point is Wiley’s statements to Trooper Neff that
trucks of similar type and age were being advertised for sale for $7,000 to $8,000, but that
no one was buying them at that price. Moreover, Trooper Neff did not dispute or
reasonably question that Wiley actually purchased the truck from a neighbor who had
experienced difficulty in selling the truck.
5) Wiley’s unemployment.
According to the government, “Wiley’s unemployment aroused Trooper Neff’s
suspicion in combination with the other factors because in his experience ninety-five
percent of drug traffickers have no other employment.” Aplee. Br. at 32. It is true that
unemployment can weigh in favor of reasonable suspicion when it is considered in
combination with other relevant factors. E.g., United States v. Alcaraz-Arellano, 441
F.3d 1252, 1260 (10th Cir. 2006) (noting defendant’s unemployment made it unlikely that
he made an innocent cross-country drive from New York to California, stayed for less
than two days, and purchased a vehicle in California that he drove back to New York).
The problem here, however, is that the government has not explained precisely what other
factors we should consider in combination with Wiley’s unemployment.3 And the
3
The two factors that are arguably inconsistent with Wiley’s unemployment were
(1) his ability to afford a cross-country trip, and (2) his recent purchase of the truck. But
Wiley explained to Trooper Neff that he was able to do both because he had saved money
from when he was working, and because his parents were assisting him. On the other
(continued...)
16
government, understandably, makes no attempt to argue that unemployment, standing
alone, gives rise to reasonable suspicion. Consequently, I afford Wiley’s unemployment
no weight.
6) Wiley’s nervousness.
Finally, the government asserts that Wiley exhibited an unusual level of
nervousness. “We have held consistently that nervousness is of limited significance in
determining whether reasonable suspicion exists.” Simpson, 609 F.3d at 1147 (internal
quotation marks omitted). Two reasons justify this position. Id. “First, it is common for
most citizens, whether innocent or guilty—to exhibit signs of nervousness when
confronted by a law enforcement officer.” Id. (internal quotation marks omitted).
“Second, unless the police officer has had significant knowledge of a person, it is
difficult, even for a skilled police officer, to evaluate whether a person is acting normally
for them or nervously.” Id. at 1147-48. Only when a defendant exhibits “[e]xtreme and
persistent nervousness” may this factor be “entitled to somewhat more weight.” Id. at
1148 (internal quotation marks omitted).
It is true that the record on appeal suggests that Wiley was nervous throughout the
traffic stop. Shortly after Wiley entered the patrol car, Trooper Neff asked Wiley if he
was nervous and Wiley responded, “Just don’t want any tickets.” Tr. of Stop at 4.
3
(...continued)
hand, Wiley’s unemployment obviously made it possible for him to take a cross-country
trip of open-ended length, and it arguably explained his desire to drive as far as possible
without stopping.
17
Trooper Neff testified at the suppression hearing that, later on during the stop, Wiley’s
hands were shaking as he looked through his cell phone for the phone numbers for his
aunt and friend. App. at 177. Lastly, Trooper Neff testified that Wiley’s nervousness
continued even after Neff informed him that he would not be receiving a ticket. Id.
The problem, however, is that it is not clear from the record that Wiley’s
nervousness during the stop was “extreme.” At worst, the record indicates that Wiley’s
hands were shaking while he looked through his cell phone for the numbers for his aunt
and friend. Otherwise, the specific aspects of his nervousness are neither exhibited by the
video of the stop (which does not show either Trooper Neff or Wiley while they were
sitting in the patrol car) or by Trooper Neff’s testimony at the suppression hearing.
Consequently, I am unable to give this factor much, if any, weight.
7) Conclusion
Although it is a close case, I am persuaded that the totality of the circumstances
outlined above, specifically Wiley’s implausible or unusual travel route, Wiley’s prior
drug-related conviction and his failure to admit that history to Trooper Neff, the fact that
Wiley only rolled down the passenger window three to four inches when first approached
by Trooper Neff, and the presence of a can of Febreze air spray on the passenger seat,
provided Trooper Neff with a reasonable and articulable suspicion that Wiley was
engaged in drug-related activity, i.e., either possessing and transporting drugs or traveling
to northern California to purchase and/or transport drugs back home. Consequently, I
conclude that Trooper Neff’s continued detention of Wiley was reasonable and did not
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violate the Fourth Amendment.
III
For these reasons, I would affirm the district court’s order denying Wiley’s motion
to suppress evidence.
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