dissenting.
¶24 In People v. Zuniga, 2016 CO 52, 372 P.3d 1052, I dissented based on my belief that the circumstances there, including Lobo’s alert, fell short of establishing probable cause to search Zuniga’s car. I respectfully dissent here, too, because I believe these circumstances fall even shorter.
¶25 The majority correctly states the Fourth Amendment’s warrant requirement, the automobile exception to that requirement, and the probable cause standard. Under the probable cause standard, there must be “a fair probability that contraband or evidence of a crime will be found in a particular place.” See People v. Swietlicki, 2015 CO 67, ¶ 32, 361 P.3d 411, 417 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)) (emphasis added).
¶26 Of course, the fair probability standard for probable cause is more demanding than is the reasonable suspicion standard required for the lesser intrusion caused by a temporary investigatory stop. See People v. Polander, 41 P.3d 698, 703 (Colo. 2001) (“Reasonable suspicion is a less demanding standard, however, not only in the sense that it can be established with information that is different in quantity or content from that required for probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.”).
¶27 In evaluating whether there is probable cause to support the warrantless search of a person’s vehicle, we must be careful not to conflate probable cause and reasonable suspicion, both in describing the applicable legal standard and in implementing it. Without such vigilance, we run the risk that little more than conjecture may give license to the government to rummage through, and seize, *515an individual’s personal belongings in derogation of the Fourth Amendment.
¶28 The majority concludes that there was a fair probability that the trooper here (as it happens, the same trooper who handled Lobo in Zuniga) would find contraband or evidence of a crime, based on the confluence of four circumstances: (1) Lobo alerted; (2) Cox was “unusually nervous”; (3) Cox’s assertion that he had driven “straight through” from California was inconsistent with his having rented the car eleven days earlier; and (4) Cox was travelling alone but had two cell phones in the vehicle. I examine each of these circumstances in turn.
¶29 As I explained in Zuniga, Lobo’s alert isn’t terribly helpful in determining probable cause in the wake of Amendment 64. See Zuniga, ¶¶ 48-61, 372 P.3d at 1063-64 (Hood, J., dissenting). Although Lobo alerts for heroin, cocaine, and methamphetamine, he also alerts .for any quantity of marijuana. That’s problematic when possessing an ounce of marijuana is now legal in Colorado. And while I agree with the majority that the alert should not be totally disregarded,- -I- cannot agree that it “suggested that illegal drugs were present in the vehicle.” Maj. op. ¶ 17 (quoting Zuniga, ¶ 29, 372 P.3d at 1060 (majority opinion)). That inference is unwarranted because we know that Lobo is capable of giving a false positive, at least under the only source of law on which the prosecution relies in this case — Colorado law. See Zuniga, ¶ 60, 372 P.3d at 1063-64 (Hood, J., dissenting). Moreover, notably absent here is the trooper noticing the strong odor of raw marijuana, a fact which the majority emphasized in Zuniga. See id. at ¶ 28, 372 P.3d at 1060 (majority opinion).
¶30 And yes, unusual nervousness is suspicious. But here, again, I wouldn’t give it much weight. As the majority recognizes, nervousness is a natural reaction to being pulled over by the police. Maj. op. ¶ 18. Even when a trooper can document indications that a driver is “unusually nervous” — sweating, stuttering, licking lips — how is the trooper to know what the driver is like when he’s not unusually nervous? See Zuniga, ¶ 37, 372 P.3d at 1061 (Hood, J., dissenting) (“[Ujnless 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.” (quoting United States v. Simpson, 609 F.3d 1140, 1147-48 (10th Cir. 2010))).
¶31 Next, the majority considers an “inconsistency” in Cox’s account to the trooper. The majority recounts, “Cox told the Trooper that he had driven ‘straight through’ from Sunnydale, California, to Bellevue, Nebraska, though Cox had rented his vehicle in Sunny-dale eleven days before.” Maj. op. ¶ 19. This was internally inconsistent, the reasoning goes, because the trooper knew that it takes only a couple of days to drive “straight through” from California to Nebraska. But this -reasoning seems thin for at least two reasons. First, there is no inherent inconsistency. Cox could have rented the car eleven days earlier, used the rental car for a week or so in California, and then driven “straight through” to Nebraska. -In Zuniga, by contrast, there were two people in the car; the driver said they’d been on the-road four days, but the passenger said it had been only two. Zuniga, ¶¶ 3-4, 372 P.3d at 1055 (majority opinion). Both tales could not be true. Therefore, there was a genuine inconsistency suggestive of criminal activity. Second, given how little information the trooper elicited here, how much does the driver’s thumbnail sketch of his journey really tell us? Precious little, it seems to me. And while the trooper may have had no obligation to seek clarification or elaboration, it .also means that he had to play with the cards he was dealt. His probable cause analysis should have been confined to the meager information he had obtained.
¶32 Finally, the majority observes that Cox had two cell phones in the car, and it points out, “Courts have recognized the connection between multiple cell phones and the possibility of drug trafficking.” Maj. op. ¶ 21. The majority recognized that there are a number of potential innocent explanations for the presence of two cell phones, like having a business phone and a personal phone. But it noted, as it had earlier with regard to Lobo’s ambiguous alert, that the “possibility of an innocent explanation ‘does not destroy the fact’s usefulness outright and require it to be *516disregarded.’ ” Id. (quoting Zuniga, ¶ 20, 372 P.3d at 1058). True enough, but I’m wary of the majority’s persistent — almost thematic— use of this point to reach probable cause here. Just because a fact shouldn’t.be disregarded doesn’t mean it should be given much regard. So it is with the second phone.
¶33 Still, is-.the whole somehow greater than the sum of its parts? Do these relatively innocuous circumstances in combination demonstrate probable cause? I don’t think so. In the end, what we have, here is a motorist pulled over for driving too long in the passing lane on an interstate highway. He happens to have a couple of cell phones in his car. His story doesn’t quite add up. He strikes the trooper as unusually nervous, so maybe he’s hiding something. Maybe not. Maybe he’s just twitchier than the average person stopped by the police. These unremarkable circumstances are followed by a dog alert that is almost meaningless under current Colorado law. If the “fair probability” required for probable cause really means something more than reasonable suspicion, what we have here isn’t enough for probable cause, even when taking the facts in combination.
¶34 The Tenth Circuit decision in United States v. Wood, 106 F.3d 942 (10th Cir. 1997), is instructive. There, a troopér pulled over a car for speeding. Id. at 944. The driver seemed “extremely nervous” — his hands trembled, he breathed' rapidly, and he cleared his throat several times. Id. He said he had rented the car in San Francisco, but the rental papers said he' had rented it in Sacramento, and it was due back the next day. Id. His travel plans, too, were unusual— though he was an out-of-work Kansas painter, he claimed to have flown one-way to California for two weeks and then rented a car to drive back. Id. On top of everything, the driver had a previous drug-related arrest. Id. The Tenth Circuit determined the trooper lacked reasonable suspicion to detain the vehicle to wait for a canine search, never mind probable cause. Id. at 948 (“To sanction a finding that the Fourth Amendment permits a seizure, based on such a weak foundation would be tantamount to subjecting the traveling public to virtually random seizures, inquisitions to obtain information which could then be used to suggest reasonable suspicion, and arbitrary exercises of police power.”).
¶35 While this factually similar case from the Tenth Circuit provides only persuasive precedent, it exposes how the- highly ambiguous facts in this case cannot bear the weight the majority places on them. There’s a gulf between the analyses of the- majority here and the Wood court, - and Lobo can’t fill it.
¶36 Therefore, I respectfully dissent.
I am authorized to state that JUSTICE GABRIEL joins in this dissent.