United States v. Gregory B. Bloomfield, Also Known as Earl Marcum Johnson

MAGILL, Circuit Judge,

dissenting.

I respectfully dissent. The majority narrows the concept of reasonable suspicion and misapplies Fourth Amendment standards at the expense of laudable law enforcement efforts. In my view, officers conducted a valid search of defendant’s truck following a lawful, and rather routine, Terry stop.

The majority errs in concluding that Roberts lacked reasonable suspicion to detain defendant to investigate whether the truck contained drugs. Defendant’s extreme nervousness, the pager he was carrying, and the strong masking odor emanating from the truck gave Roberts reasonable suspicion under our Terry jurisprudence. Moreover, contrary to the majority’s suggestion in its footnote one, defendant’s detention never rose to the level of an arrest. The length of the detention did not exceed constitutional limits nor was the detention sufficiently intrusive to constitute an arrest. In light of the validity of defendant’s detention, officers *1049properly searched the truck after the drug dog “alerted” to the presence of drugs.

I. TERRY STOP

First, I would hold that Officer Roberts’ stop of defendant was not pretextual. The district court’s finding that Roberts lawfully stopped defendant is not clearly erroneous. See United States v. Richards, 967 F.2d 1189, 1192 (8th Cir.1992). Roberts testified that he believed that defendant had committed a traffic violation by changing lanes without signalling. This observation gave Roberts probable cause to stop defendant. See id. (citing Cummins( 920 F.2d at 500).

I agree with the majority that, on stopping defendant, Roberts had authority to conduct an investigation that was “ ‘reasonably related in scope to the circumstances which justified the interference in the first place.’” Ante, at 1046 (quoting Cummins, 920 F.2d at 500-01). The majority concludes, however, that defendant was seized without reasonable suspicion when Roberts began questioning him in the patrol ear “about matters unrelated to his driving.” Id. at 1046. I disagree.

Reasonable suspicion that defendant was transporting drugs existed when defendant exited the rental truck. The majority finds that the following factors were insufficient to give Roberts reasonable suspicion to detain defendant to investigate the possibility that the truck contained drugs: “(1) defendant’s hands were shaking and he appeared nervous, (2) defendant’s eyes appeared red, (3) defendant opened the door only partially when he exited the truck, (4) a strong deodorizer smell emanated from inside the truck, and (5) defendant was wearing a pager.” Id. at 1047-48. The majority’s analysis of these factors disregards well-established Fourth Amendment standards.

First, the majority improperly evaluates each of these factors in isolation. Although it summarily concludes that the five factors do not create reasonable suspicion- “when viewed collectively,” id. at 1048, it actually analyzes each factor individually -without regard to the others, see id. “‘In assessing whether the requisite degree of suspicion exists,’ ” however, “ “we must determine whether the facts collectively establish reasonable suspicion, not whether each particular fact establishes reasonable suspicion.’ ” United States v. Hawthorne, 982 F.2d 1186, 1189 (8th Cir.1992) (citations omitted). The majority pays lip service to this requirement but in fact fails to acknowledge the collective force of the five factors.'

Similarly, the majority diverts attention from the reasonable suspicion inquiry by analyzing possible innocent explanations for each factor. Thus, the strong masking odor that Roberts noticed “may be explained by noncriminal as well as criminal reasons.” Ante, at 1048. This is of course true, but beside the point. Innocent explanations for conduct exist in every ease in which the police stop suspects on the basis of reasonable suspicion. Indeed, the very purpose of the Terry doctrine is to allow police to prevent crimes and stop criminals "without ironclad proof of wrongdoing. “It is not necessary that the behavior on which reasonable suspicion is grounded be susceptible only to an interpretation of guilt.” United States v. Jones, 759 F.2d 633, 643 (8th Cir.) (citation omitted), cert. denied, 474 U.S. 837,106 S.Ct. 113, 88 L.Ed.2d 92 (1985). Thus, “the applicable standard in determining the propriety of a Terry stop is not whether the defendant’s acts can be construed as innocent through the- exercise of exegetical speculation, but rather whether they give rise to an articulable, reasonable suspicion of criminal activity.” United States v. Black, 675 F.2d 129, 137 (7th Cir.1982), cert. denied, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983). That each of the five factors can be conveniently explained away with such “exegetical speculation” has little bearing on whether reasonable suspicion existed.

To me, there is little doubt that Roberts had reasonable suspicion to believe defendant was transporting drugs.1 Roberts had much more than an “inchoate and unparticularized suspicion or ‘hunch’” when he decided to detain defendant. Weaver, 966 F.2d at 394 (citation omitted). Taken together, three of *1050the factors that the majority enumerated amount to reasonable suspicion.

First, Roberts testified that defendant was extremely nervous when he handed his driver’s license to Roberts and when he was in the patrol car. Although it is customary for people to be “somewhat nervous” when Roberts pulls them over, it is unusual for people to “fidget” like defendant did if the stop is a “normal routine” one. Tr. at 16; see Weaver, 966 F.2d at 396 (that defendant’s nervousness exceeded that exhibited by non-drug-carrying passengers contributed to reasonable suspicion). When defendant exited the truck, Roberts noticed a “masking odor, a heavy, strong odor.” Tr. at 6; cf. United States v. Ojeda, 23 F.3d 1473 (8th Cir.1994) (strong masking odor in car contributed to court’s finding that jury could have found beyond a reasonable doubt that defendant knew there were drugs in car). Roberts also observed that defendant was wearing a pager clipped to his right front pants pocket. Tr. at 36; see United States v. Barth, 990 F.2d 422, 425 (8th Cir.1993) (e3¡plaining that a pager is “a tool of the drug trade”). It was eminently proper for Roberts to investigate further on observing an inordinately nervous driver of a rental truck who was wearing a pager — a device that drug dealers commonly use when they cannot be reached by telephone — and whose truck was emitting a strong “deodorizer” smell — a technique that drug couriers commonly use to mask the odor of illicit drugs. Holding otherwise penalizes good police work and unduly elevates the level of suspicion required for a Terry stop.

II. ARREST

I would also hold that defendant’s detention did not amount to a de facto arrest. First, the duration of the detention was reasonable under the circumstances. There is “no rigid time limitation on Terry stops.” United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). In Sharpe, the Court found that a twenty-minute detention was reasonable where the police acted diligently and defendant contributed to the delay. See id. at 686-88, 105 S.Ct. at 1575-76. In United States v. Place, 462 U.S. 696, 709-10, 103 S.Ct. 2637, 2645-16, 77 L.Ed.2d 110 (1983), the Court found that a ninety-minute detention of defendant’s luggage was unreasonable where agents failed to act diligently to minimize the intrusion.2 In United States v. Frost, 999 F.2d 737, 741-42 (3d Cir.), cert. denied, — U.S.-, 114 S.Ct. 573, 126 L.Ed.2d 472 (1993), the court held that detention of defendant’s luggage for eighty minutes pending arrival of a drug dog was reasonable. Thus, in assessing the reasonableness of the length of the detention, courts- look both at how long the detention lasted and the conduct of the parties.

Here, less than an hour elapsed from the time Roberts pulled defendant over until the drug dog arrived. Moreover, Roberts acted diligently, radioing for the drug dog a few minutes after stopping defendant and immediately after defendant refused Roberts consent to search the truck; Roberts also asked that the dog be sent as quickly as possible. The only material difference3 between Frost and the case at bar is that in Frost, the delay was about twenty minutes longer than it was here. Roberts did everything he could to minimize the intrusion on defendant. In addition, local government police forces and the state highway patrol cannot be expected to *1051have drug dogs immediately available to all officers in the field; transporting drug dog units to various sites requires time in every case. Courts must “consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes.” Sharpe, 470 U.S. at 685, 105 S.Ct. at 1575 (citations omitted). Here, that about fifty minutes elapsed from the time Roberts radioed his request in at 7 p.m. until the dog arrived is not unreasonable, cf. Frost, 999 F.2d at 742 (“Nor is it unreasonable that the unit, being summoned at six o’clock in the evening, would take nearly an hour [to arrive].”); nor is there anything in the record to suggest that the drug dog unit did not act diligently. In this case, the length of defendant’s detention was reasonable and did not transform the detention into a de facto arrest.

Nor did the other circumstances surrounding defendant’s detention transform it into an arrest. The majority would hold that defendant was arrested because he “was not free to leave, not free to use his truck to travel to a public restroom, and thus not free to decline the officers’ escort to a restroom at the highway patrol zone office.” Ante, at 1048 n. 1. “The test,” however, “is not ... whether a reasonable person would have felt free to leave under the circumstances: That concern marks the line between a fourth amendment seizure of any degree and a consensual encounter.” Jones, 759 F.2d at 637 (citations omitted). “Nor is the test whether a citizen’s freedom of movement in fact actually has been restricted.” Id. Thus, the factors that the majority cites go to whether defendant was seized, not whether he was arrested.

Although “[t]here is no bright line of demarcation between investigative stops and arrests,” United States v. Miller, 974 F.2d 953, 957 (8th Cir.1992), an arrest has occurred “ ‘if the officers’ conduct is more intrusive than necessary for an investigative stop,’ ” Jones, 759 F.2d at 636 (quoting United States v. Rose, 731 F.2d 1337, 1342 (8th Cir.), cert. denied, 469 U.S. 931, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984)). “During a Terry stop, officers may check for weapons and may take any additional steps ‘reasonably necessary to protect their personal safety and maintain the status quo during the course of the stop.’ ” Miller, 974 F.2d at 957 (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 684, 83 L.Ed.2d 604 (1985)). In general, the inquiry is whether “a detention is ‘in important respects indistinguishable from a traditional arrest,’ ” Jones, 759 F.2d at 636 (quoting Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824 (1979)). One important factor in distinguishing between a stop and an arrest is “the degree of fear and humiliation that the police conduct engenders.” United States v. Lego, 855 F.2d 542, 544-45 (8th Cir.1988) (citation omitted).

The record in this case compels the conclusion that defendant was not arrested. First, the officers explicitly told defendant that he was not under arrest. See Tr. at 9; United States v. Zukas, 843 F.2d 179, 183 (5th Cir.1988) (that officers advised suspect that he was not under arrest contributed to finding that seizure did not rise to level of arrest), cert. denied, 490 U.S. 1019, 109 S.Ct. 1742, 104 L.Ed.2d 179 (1989). Next, the officers accommodated defendant’s request to drive to a restroom; presumably, they could have instead denied the request and simply asked that the drug dog be sent to the spot on the highway where defendant had stopped the truck. Moreover, the officers allowed defendant to drive the truck; he followed Roberts and the other officer followed defendant. Although the officers did not allow defendant to drive to a gas station, they did escort him to the “zone office.” Driving to the state patrol zone office also accommodated defendant because it was in the direction defendant was traveling and lacked the intimidating trappings of a police station, such as the presence of other officers. See Tr. at 9-10.

After defendant used the zone office restroom, the officers decided to wait inside for the drug dog to arrive. They asked defendant if he wanted to wait inside because it was cold outside, but he declined and chose to smoke outside alone. See id. at 11. The officers did not handcuff defendant until they found the marijuana in the truck. See id. at 13. Clearly, defendant’s detention cannot reasonably be compared to an arrest. Far from using the intrusive and intimidating methods associated with an arrest, the officers here made every effort to accommodate defendant’s mental and physical comfort and *1052respect his freedom of movement. Cf. Lego, 855 F.2d at 544-45. In short, the officers “employ[ed] the least intrusive means of detention reasonably necessary to achieve the Terry stop’s purposes.” Miller, 974 F.2d at 957.

III. SEARCH

Finally, I would hold that the search of the truck was valid. Once the drug dog “alerted,” the officers had probable cause to search the truck. See United States v. Stone, 866 F.2d 359, 364 (10th Cir.1989). Under the “automobile exception” to the search warrant requirement, the officers then had authority to search the truck without a warrant. See id. Thus, the marijuana found in the truck is admissible evidence. For the foregoing reasons, I would' affirm the district court in all respects.

ORDER

On the court’s own motion, petition for rehearing by the court en banc is granted. The opinion and judgment of the court entered on May 19, 1994, are vacated.

The argument date will be fixed by a later order of this court.

. The majority holds that “the district court committed clear error in finding that Roberts had an objectively reasonable suspicion that defendant was involved in criminal activity.” Ante, at 1047. To me, whether Roberts had reasonable suspicion is a question of law that we review de *1050novo, although we review the factual findings underlying it under the clearly erroneous standard. See Hawthorne, 982 F.2d at 1189 (explaining that "[t]he findings of the district court as to what the various parties said or did during the encounter are subject to the clearly erroneous standard” but ”[w]hether the detention was justified ... is a question of law to be reviewed de novo”) (citations omitted).

. The Place Court held that ”[t]he length of the detention of [defendant’s] luggage alone precludes the conclusion that the seizure was reasonable in the absence of probable cause.” 462 U.S. at 709, 103 S.Ct. at 2645. The Sharpe Court, however, cast doubt on the idea that a ninety-minute detention is per se unreasonable. See 470 U.S. at 685, 105 S.Ct. at 1575 (”[0]ur cases impose no rigid time limitation on Terry stops.”).

. That the detention of defendant's luggage, and not his person, was at issue in Frost is irrelevant. See Place, 462 U.S. at 709, 103 S.Ct. at 2645 ("[T]he limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person's luggage on less than probable cause.”).