In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2311
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
AMAD ZAMBRANA,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 03 CR 30196—Michael J. Reagan, Judge.
____________
ARGUED SEPTEMBER 15, 2005—DECIDED OCTOBER 31, 2005
____________
Before FLAUM, Chief Judge, and RIPPLE and KANNE, Circuit
Judges.
RIPPLE, Circuit Judge. The Government appeals the
decision of the district court to grant Amad Zambrana’s
motion to suppress narcotics found in his rental car, as well
as statements made by Mr. Zambrana and by Babar Shah,
the car’s passenger. For the reasons set forth in the following
opinion, we vacate the decision of the district court and
remand the case for further proceedings consistent with this
opinion.
2 No. 04-2311
I
BACKGROUND
A. Facts
At approximately 9:45 a.m. on April 18, 2002, Officer Mike
Reichert, a patrolman for the City of Collinsville, Illinois,
made a traffic stop on Interstate 55-70 that led to the arrest
of Amad Zambrana and Babar Shah. Mr. Zambrana and
Shah were later charged with possession of cocaine and
heroin with intent to distribute. See 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C). Mr. Zambrana filed a motion to suppress the
seized narcotics and statements made by him and by Shah.
He contended that the stop was without probable cause and
that the subsequent search also was without probable cause.
The district court held a suppression hearing on March 8,
2004. Officer Reichert testified that he had taken classes on
how to recognize pre- and post-stop indicators of drug
activity and that he now teaches classes on those indicators
for officers. He testified that, on the morning of April 18, he
was turning around in the median of Interstate 55-70 at the
8-mile marker when he noticed a white Toyota with Mary-
land plates traveling eastbound. Officer Reichert observed
that there was fresh damage on the driver’s side of the car.
Officer Reichert pulled out behind the Toyota. As he
followed the vehicle, he noticed that it crossed the white
center divider line on the roadway. He then pulled along-
side the Toyota and noticed that the driver did not make eye
contact with him. Officer Reichert testified that such a
failure to make eye contact was unusual. He then resumed
his position behind the Toyota and activated his red lights.
In response, the driver of the Toyota pulled off the roadway.
Officer Reichert, concerned about the safety of remaining in
a position so proximate to a busy exit, instructed the driver
No. 04-2311 3
to move the car off the interstate into a nearby abandoned
gas station parking lot.
Officer Reichert testified that Mr. Zambrana was driving
the car and that the vehicle had been rented by a third party
who was not present. The rental agreement listed Mr.
Zambrana as an additional driver. The car had been rented
on April 11, 2002 in Maryland, and the rental agreement
only allowed the vehicle to be operated in Maryland, the
District of Columbia, Virginia and South Carolina.1 Officer
Reichert testified that, when Mr. Zambrana gave Officer
Reichert the rental paperwork and his driver’s license, his
hand was shaking badly. Officer Reichert also asked Shah,
the passenger, for identification; Shah produced a military
identification card. Officer Reichert testified that he thought
it was odd that Shah had produced a military identification,
and concluded that he was trying to present a “good guy”
image.
Officer Reichert testified that, in his experience, drugs
often are seized from rental cars rented by third parties who
are not passengers in the vehicle. He also testified that,
when he looked in the back of the car, he saw trash and
maps, as well as one small overnight bag which was open
and revealed clothing inside the bag. Officer Reichert
testified that it was also common for drug couriers to have
only a small piece of luggage with one change of clothes in
the car.
Officer Reichert then asked Mr. Zambrana to exit the
vehicle, and he observed that Mr. Zambrana was shaking
nervously. Officer Reichert further testified that, when he
1
The abbreviations “MD DC VA” are printed on the rental
agreement, followed by the handwritten note “to SC.” R.27 at 18.
4 No. 04-2311
asked Mr. Zambrana the purpose of the trip, Mr. Zambrana
stated that he had gone to California to visit some friends
who were in the armed forces and who were about to be
deployed. Mr. Zambrana further stated that he had left
Maryland on April 11 and had driven straight through to
California. Officer Reichert testified he later asked Shah the
purpose of their trip and that Shah stated that they had gone
to California to sight-see and visit friends. Officer Reichert
testified that he regarded these statements as inconsistent.
The officer also stated that Shah seemed nervous; he would
not make eye contact, and his voice was breaking. Officer
Reichert testified that he then asked Shah and Mr.
Zambrana if they had been arrested for anything. Shah
replied that he had not and that he was a United States
Marine; Mr. Zambrana replied that he had been arrested for
simple assault.
Officer Reichert then ran warrant and driver’s license
checks on Mr. Zambrana and Shah. The officer testified that
Mr. Zambrana had more of a criminal history than just an
arrest for simple assault. He regarded the discrepancy as a
sign of deception because, in his experience, people do not
“down play” their record. R.41 at 25. While Officer Reichert
was checking these records, Officer Chuck Mackin arrived
on the scene as a backup officer.
Officer Reichert testified that, after running the checks, he
told Mr. Zambrana that he would issue a warning for
crossing the center line. He then asked Mr. Zambrana if he
would speak with him for a few minutes; Mr. Zambrana
agreed. Officer Reichert asked why both men were shaking
visibly; Mr. Zambrana replied that they had been driving
for a long time and were tired. Officer Reichert then asked
Mr. Zambrana a series of “rolling no” questions, asking
about illegal contraband to gauge his demeanor while
No. 04-2311 5
responding.2 Tr. at 29. According to Officer Reichert, Mr.
Zambrana answered “no” to each question, but, as he
answered “no,” he would break eye contact and look to the
ground.
Officer Reichert testified that he then asked permission to
search the car; Mr. Zambrana denied permission, telling the
officer that he had been stopped four times on the trip. After
this refusal, Officer Reichert informed Mr. Zambrana that he
would be detaining the car for a canine sniff, but that Mr.
Zambrana and Shah were free to leave. Officer Reichert
testified that he informed Mr. Zambrana that it would take
fifteen to twenty minutes for a dog to arrive; he added that
the car probably could be searched in less time and, if
nothing illegal was found, Mr. Zambrana could be on his
way. Mr. Zambrana then gave permission to search and
Officer Reichert began searching the car. The canine arrived
a few minutes later while the officer was still searching the
car. The dog began to sniff the car and alerted at the
passenger-side dashboard. Officer Reichert then disassem-
bled part of the center console and found a white plastic bag
with white powder in it; this substance later tested positive
for heroin and cocaine.
Officers Reichert and Mackin then arrested Mr. Zambrana
and Shah and transported them to the police department.
Both Mr. Zambrana and Shah gave written statements at the
2
Officer Reichert testified that “rolling no” questions are a series
of questions asked such as “Do you have large amounts of
currency in the car?” or “Do you have any marijuana in the car?”
According to Officer Reichert, the officer asks these questions to
gauge reactions to the questions. It is a sign of deception if the
person does not look at the officer and provide direct, precise
“no” answers to each question.
6 No. 04-2311
police station. Mr. Shah later pleaded guilty to possession
with intent to distribute cocaine and to possession with
intent to distribute heroin.
B. District Court Proceedings
Mr. Zambrana moved to suppress the narcotics removed
from the vehicle, the statements made by Mr. Zambrana and
Shah to the Collinsville Police Department, and any live
testimony that Shah would have given at trial. The district
court granted Mr. Zambrana’s motion, and suppressed the
narcotics, statements and testimony. The court concluded
that Officer Reichert had probable cause to stop the car
driven by Mr. Zambrana because the evidence that his car
had crossed the white center line was uncontroverted and
unchallenged. However, the district court also determined
that Officer Reichert did not have reasonable articulable
suspicion to detain the car for a canine unit sniff. The
district court summarized thirteen factors that Officer
Reichert had observed:
(1) driver and passenger would not make eye contact
with him; (2) driver’s hand was excessively shaking
when he handed the officer his driver’s license and
rental agreement; (3) vehicle was a rental car which
drug carriers are known to use; (4) vehicle was rented
by a third party not present in the car, which drug
carriers are known to do; (5) passenger provided
military identification as though he was trying to
present a “good-guy” image which drug carriers
sometimes do; (6) there was only one piece of luggage
in the back seat that appeared to contain only a few
items, and drug carriers usually travel with limited
luggage; (7) the driver and passenger were making a
No. 04-2311 7
trip from Maryland to California in only seven days,
and drug couriers are known for “quick turn-around”
trips; [(8) inconsistent stories given by driver and
passenger as to purpose of trip]; (9) [sic] [passenger
was] nervous when talking with Officer Reichert and
crossed his arms and turned his head away whenever
he was asked a question by the officer; (10) passenger
would indirectly answer the officer’s questions; (11)
driver’s incorrect answers regarding his criminal
history; (12) driver would look away whenever the
officer asked if he was transporting anything illegal;
and (13) driver provided an excuse as to why he did not
want the officer to search the car.
R.41 at 15. The district court noted that the proper test for
reasonable suspicion is to evaluate the totality of the
circumstances. United States v. Arvizu, 534 U.S. 266, 272
(2002). However, the district court discussed each factor
individually, using language such as “standing alone, [the
factor] means nothing in the reasonable suspicion analysis”
and “[i]n isolation, [the factor] does not give rise to reason-
able suspicion.” See R.41 at 16, 18. With respect to factors
one through four, seven through nine, eleven and twelve,
the district court determined that, standing alone, these
factors are insufficient to reach reasonable suspicion.
Likewise, the court held that factor ten, Shah’s disclosure
that he was in the United States Marine Corps when asked
if he had ever been arrested, did not “objectively indicate
that criminal activity was afoot.” Id. at 18. The court deter-
mined that factors five (Shah’s presentation of a military
identification), six (only one piece of luggage in sight in the
back seat) and thirteen (Mr. Zambrana providing an excuse
as to why he did not want the car to be searched) were not
legitimate factors for an officer to consider in the reasonable
suspicion analysis.
8 No. 04-2311
After discussing each factor, the district court determined
that “[i]nnocent explanations apply to each of these factors
even when aggregated as a whole.” Id. at 20. The district
court also expressed concern with the officers’ interpretation
of possibly innocent body language, noting that the police
may have been “inappropriately acting as human poly-
graphs.” Id. at 21. The district court believed that coinci-
dences with a drug courier “profile” gave the police officer
only a hunch—not the objective manifestation of reasonable
suspicion needed to detain Mr. Zambrana’s vehicle beyond
the routine traffic stop.
The district court did not make any explicit credibility
findings regarding the police officers who testified at the
suppression hearing. However, the court did note that there
was conflicting evidence regarding some damage on the
side of the rental car. Officer Reichert testified the damage
was on the driver’s side, while a service receipt indicated
that damage on the passenger’s side had been repaired. The
district court noted that this discrepancy was significant
only “to the extent the contradiction calls into question
Officer Reichert’s ability to observe with accuracy.” Id. at 2
n.3. The court also described Officer Reichert as a “polished
witness.” Id. at 14. As for the class that Officer Reichert
teaches on pre- and post-stop indicators, the district court
observed, “A skeptic regarding law enforcement, which the
undersigned as a former police officer is not, might call
Officer Reichert’s class: ‘How to avoid the warrant require-
ment in searching a vehicle.’ ” Id. at 14 n.8.
II
DISCUSSION
No. 04-2311 9
When determining whether a police officer had reason-
able suspicion to stop an individual, the district court must
evaluate the “totality of the circumstances” to assess
whether the detaining officer has a “particularized and
objective basis” for suspecting illegal activity. Arvizu, 534
U.S. at 273; Kaniff v. United States, 351 F.3d 780, 785 (7th Cir.
2003). Under this standard, a court cannot simply evaluate
and reject each factor in isolation from the other factors. See
Arvizu, 534 U.S. at 274. Rather, it must view the circum-
stances in their entirety and determine whether a reasonable
officer would have believed that he had a “particularized
and objective basis” for suspecting illegal activity. Id. at 273-
74. The “totality of the circumstances” test necessarily
includes the experience of the law enforcement agent and
the behavior and characteristics of the subject. United States
v. Odum, 72 F.3d 1279, 1284 (7th Cir. 1995). Police officers
are entitled to make assessments of situations “in light [of
their] specialized training and familiarity with customs of
the area’s inhabitants.” Arvizu, 534 U.S. at 276.
The Government submits that, even though the district
court recited the “totality of the circumstances” test, its
opinion makes clear that it actually failed to undertake the
inquiry required by this methodology. In the Government’s
view, the district court simply assessed each factor individu-
ally. It regards the district court’s single sentence that “in
the aggregate, these factors still have innocent explanations
that do not constitute an objective basis for suspected legal
wrongdoing” as an insufficient application of the “totality
of the circumstances” test. Appellant’s Br. at 35. In reaching
this conclusion, the Government relies upon a case decided
by our colleagues in the Sixth Circuit, United States v.
Orsolini, 300 F.3d 724 (6th Cir. 2002). Appellant’s Br. at 36.
In Orsolini, the court of appeals determined that a
conclusory statement made by the district court that
10 No. 04-2311
considered the defendant’s nervousness “in conjunction
with the other cited factors” was insufficient to show that
the court actually had weighed all factors together. 300 F.3d
at 728.
Mr. Zambrana takes a different view of the matter. He
submits that the district court did employ the “totality of the
circumstances” methodology in evaluating Officer
Reichert’s actions. Mr. Zambrana points out that the district
court specifically cites the “totality of the circumstances”
standard from Arvizu in the Memorandum and Order.
Appellee’s Br. at 8. Mr. Zambrana also emphasizes the
district court’s conclusion that, in the aggregate, the factors
still have innocent explanations that do not constitute an
objective basis for suspected legal wrongdoing.
The Government makes an additional argument. It
submits that the district court failed to evaluate the factors
from Officer Reichert’s perspective and experience; instead,
continues the Government, the district court substitutes its
own view of the significance of the factors. For example, the
district court reasoned that Mr. Zambrana may have lied
about his arrest record in order to avoid a traffic ticket. This
view, notes the Government, contradicts the officer’s
testimony that, based on his experience, most individuals do
not downplay their arrest record. The Government also
contends that the district court substituted its own view for
Officer Reichert’s testimony and experience with respect to
the significance of the following factors: (1) that the vehicle
was a rental car; (2) that the passenger provided military
identification to try to present a “good guy” image; (3) that
there was only one piece of luggage in the back seat; (4) that
Mr. Zambrana and his passenger were traveling from
Maryland to California in only seven days; (5) that inconsis-
tent stories were given by the driver and passenger; and (6)
that the passenger indirectly answered questions.
No. 04-2311 11
Mr. Zambrana does not dispute that the district court
disagrees with Officer Reichert’s use of several of the above
factors as indicators of suspicious activity. Rather than
characterize the district court’s opinion regarding several of
the factors as the substitution of its own opinion for that of
the officers, he describes the factors as “credibility determi-
nations about the testifying officer.” Id. at 11.
In reviewing a district court’s determination with respect
to reasonable suspicion, we scrutinize de novo the district
court’s ultimate determination with respect to the existence
of reasonable suspicion. Arvizu, 534 U.S. at 275. The Su-
preme Court has made clear that the purpose of de novo
review is to permit us to ensure uniformity of decisions
among the different districts in the same circuit. See id.
When reviewing determinations of reasonable suspicion, we
must come to a “common sense conclusion” as to whether
the facts to which the officer points reasonably would raise
a suspicion of wrongdoing. United States v. Jerez, 108 F.3d
684, 693 (7th Cir. 1997). This process requires that we “give
due weight to the inferences drawn from [the historical
facts] by resident judges and local law enforcement offi-
cers.” United States v. Ornelas, 517 U.S. 690, 699 (1996); see
also Arvizu, 534 U.S. at 276.
Although the considerations noted above require that we
review de novo the district court’s ultimate determination
as to the existence of reasonable suspicion, our institutional
role in that respect in no way eclipses the crucial role played
in this adjudicatory process by our colleagues on the district
court. Vital aspects of the overall determination of the
reasonable suspicion issue are the prerogative and responsi-
bility of the trial court; it has the institutional capacity to
make findings of historical fact as well as all-important
credibility judgments. The superior institutional capacity of
12 No. 04-2311
the district court to deal with these matters is acknowledged
in the rule that we shall review the district court’s determi-
nations of fact only for clear error. United States v. Jackson,
300 F.3d 740, 745 (7th Cir. 2002). Indeed, although the
ultimate decision is subject to de novo review in this court,
the district court’s estimation as to whether reasonable
suspicion existed is an important step in the process and a
determination worthy of our great respect. A United States
district judge brings to such a determination both pragmatic
wisdom and fierce impartiality. Consequently, the judgment
of that judicial officer, even when reviewed de novo, must
be given thoughtful and serious consideration by those of us
who are bound by the cold record.
It goes without saying, of course, that, in assessing the
evidence presented by law enforcement officers, a district
court should be mindful of the officers’ experience, their
training and the pressure-filled circumstances under which
they fulfill their duties. On the other hand, in the final
analysis, it is the responsibility, and prerogative, of the court
to make critical judgments as to the constitutional appropri-
ateness of the officers’ conduct and judgment. Although the
officers may be seasoned in the practical exigencies of law
enforcement, the United States district judge is expert in the
requirements of the Constitution, and it is the standards of
the Constitution that must prevail.
With these principles in mind, we believe that several
factors counsel against definitive resolution of the issue
before us at this time. First, despite the plenary hearing
conducted by the parties and the careful examination of
each factor relating to reasonable suspicion by the district
court, we remain uncertain as to whether the district court,
although articulating the “totality of the circumstances”
methodology, actually evaluated the situation from this
No. 04-2311 13
perspective. Just as importantly, the district court’s laconic
statement about the “totality of the circumstances” test does
not provide us with the sort of explanation that will permit
us to benefit from the court’s wisdom and experience in
making our own evaluation.
We also find ourselves handicapped by another aspect of
the district court’s treatment of this issue. The district
court’s opinion suggests that the court found Officer
Reichert a less than completely satisfactory witness. The
district court is entitled—indeed has the responsibility—to
make credibility judgments and to otherwise determine
what weight ought to be given to particular testimony. After
studying the opinion of the court, we remain uncertain as to
the district court’s view on these matters. A more explicit
statement in this regard is necessary to our own evaluation.
Accordingly, we must vacate the decision of the district
court and remand the case to permit that court to provide
these explanations that, as we have noted, are vital to our
decision. We appreciate that the district court faces a great
workload and has great demands on its time and attention.
However, we are sure that the court also appreciates that the
pendency of the underlying criminal action makes it
imperative that the necessary decision be made expedi-
tiously.
Finally, we stress that our decision today ought not be
construed as an indication of any inclination on our part of
the ultimate merits of the question presented. We simply
need to ensure that we are fully informed before making a
ruling on this matter.
14 No. 04-2311
Conclusion
The decision of the district court is vacated, and the case
is remanded for proceedings consistent with this opinion. If,
after the district court completes its work, a new appeal on
this issue is taken by the Government, the Clerk will treat
that appeal as successive to the present appeal and return
the case to this panel.
IT IS SO ORDERED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-31-05