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

McMILLIAN, Circuit Judge, with whom BRIGHT, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge, join, dissenting, and with whom RICHARD S. ARNOLD, Chief Judge, and WOLLMAN, Circuit Judge, join in Part II.

I write in dissent because I-not only disagree with the majority opinion’s conclusion that there was no Fourth Amendment violation, but I also disagree with its failure to remand the case for proper development of the factual record.

I. The “Any Reasonable View of the Evidence” Standard

A.

The majority opinion admits that the district court’s factual findings are “unfortunately limited to finding that the stop was not pretextual, that Roberts smelled a ‘masking odor’ from the truck when Bloomfield exited, and that the dog was summoned promptly and arrived within a reasonable time.” Maj. op. at 913. Unfortunately, the majority opinion moves forward without hesitation to affirm a felony conviction despite the inadequately developed district court record. The majority opinion justifies its refusal to remand by adopting the “any reasonable view of the evidence” standard for the review of a district court’s ruling on a motion to suppress evidence. This standard allows an appeals court to scour the record in a search for material to bolster a district court’s ruling which is based on insufficient findings of fact. Such findings, however, are clearly mandated by Rule 12(e) of the Federal Rules of Criminal Procedure. The plain language of the Rule provides in part: “Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.” Fed. R.Crim.P. 12(e) (emphasis added). Two other circuits have adopted a plain reading of the Rule and will remand a case for more factual findings when a district court fails to *920adhere to the clear mandate of the Rule. See United States v. Moore, 936 F.2d 287, 288 (6th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 3052, 120 L.Ed.2d 918 (1992); accord United States v. Carbajal, 956 F.2d 924, 930-31 (9th Cir.1992); United States v. Prieto-Villa, 910 F.2d 601, 610 (9th Cir.1990). I believe that the requirements of Rule 12(e) are clear, and I would join the Sixth and Ninth Circuits in demanding strict compliance with Rule 12(e). The majority chooses to rely on a more relaxed interpretation of Rule 12(e) which three other circuits appear to have adopted. See, e.g., United States v. Harley, 990 F.2d 1340, 1341 (D.C.Cir.) (Harley), cert. denied, — U.S. -, 114 S.Ct. 236, 126 L.Ed.2d 190 (1993); accord United States v. Griffin, 7 F.3d 1512, 1516 (10th Cir.1993) (Griffin); United States v. Yeagin, 927 F.2d 798, 800 (5th Cir.1991) (Yeagin). This split between the circuits over Rule 12(e) confuses the important question of how we are to understand the division of tasks between district and appellate courts within our judicial hierarchy. I believe that the majority opinion’s understanding of Rule 12(e) improperly diminishes the district court’s vital function as the finder of fact based on evidence which it believes to be credible in suppression hearings.

B.

Even assuming the “any reasonable view of the evidence” standard is applicable to Rule 12(e), I believe nonetheless that the majority opinion has wrongly applied it in this particular case. Cases from two of the three circuits which the majority opinion relies upon have applied this standard where the circumstances on the record either made only one conclusion possible or left no doubt as to the district court’s assessment of credibility. In such narrow instances, the absence of Rule 12(e) findings does not impede an appeals court’s ability to conduct a proper review. This limited application of the standard is made clear by the D.C. Circuit in its discussion of the policy behind Rule 12(e) in United States v. Williams:

When a district court’s ruling on a pretrial motion involves factual issues, Rule 12(e) of the Federal Rules of Criminal Procedure commands the court to “state its essential findings on the record.” The rule serves several functions. Findings on the record inform the parties and other interested persons of the grounds of the ruling, add discipline to the process of judicial decision-making and enable appellate courts properly to perform their reviewing function. If the district court not only fails to make “essential findings on the record,” but also expresses nothing in the way of legal reasoning, if it simply announces a result, it may frustrate these objectives. We say “may” because there are cases in which the facts are so certain and the legal consequences so apparent, that little guesswork is needed to determine the grounds for the ruling. 951 F.2d 1287, 1288 (D.C.Cir.1992) (emphasis added). This opening paragraph of the court’s opinion indicates that cases which can be excepted from the Rule 12(e) mandate are limited to those matters where the facts are certain and little guesswork is involved. The Williams court further noted that its gloss on Rule 12(e) is meant to prevent a windfall to the losing party on the suppression motion in cases where the “trial court omits a finding apparent on the face of the record, or when, under any possible view of the record, the district court could have reached but one result.” Id. at 1291 (citations omitted). The Williams court’s approach to Rule 12(e) has a much narrower scope than the approach taken by the majority here today.1

A subsequent opinion from the D.C. Circuit strongly suggests that the “any reasonable view of the evidence” standard should *921have the very limited application which I advocate. In United States v. Taylor, 997 F.2d 1551, 1554-55 (D.C.Cir.1993) (Taylor), the court said: “[W]e have upheld denials of suppression motions absent clear findings of fact and conclusions of law when “we [could] readily affirm the denial’ based upon an argument made by the government below and supported by evidence either uncontested or found credible by the District Court.” (Emphasis added.) To support this limited proposition, the court cited to Harley, the very same case which the majority opinion relies on in part to justify its considerably broader application of the “any reasonable view of the evidence standard” to avoid remand. See 997 F.2d at 1555. In Taylor, the court determined the case did not require remand, “even though the district court failed to state on the record its essential findings of facts, as required by Rule 12(e),” because “[t]he essentially uncontested facts of this case are on all fours with a number of other cases in which this court has affirmed findings of probable cause.” Id. at 1554 (emphasis added). In the present case, Bloomfield contested many of the factors from the Pres'entence Investigation Report (PSR) which the majority opinion sees fit to rely upon in its denial of remand. The courts in Taylor and Williams did not need to confront the absence of a credibility assessment from the district court because their eases involved “uncontested” facts which required “little guesswork.”

In Griffin, a case from the Tenth Circuit which the majority opinion relies upon for its version of the “any reasonable view of the evidence” standard, the court said: “We have before us no specific or detailed findings of fact, only the trial court’s statement that the Government’s evidence was credible and defendant’s was not.” 7 F.3d at 1516. The importance of this information to an appellate court cannot be overlooked. If the district court said on the record whose evidence it believed and whose it did not, a court of appeals can review the record .and find evidence presented by the credible party to support the district court’s ruling. This is entirely consistent with the understanding which results from a careful reading of the D.C. Circuit’s opinions in Williams and Taylor. In such a case, there is no danger that the appeals court might rely on evidence which was not found to be credible. The Griffin court explained that because the trial court made this general credibility assessment, it could decide the case on the assumption that the testimony of the police officers was true; thus, there were not factual issues, only legal issues. Id.

If the “any reasonable view of the evidence” standard is to apply at all, I believe that it should apply only where the trial court makes clear its assessment of witness credibility. In the present case, a strict application of Rule 12(e) would not afford Bloomfield a windfall. We have only the disputed testimony of Trooper Roberts upon which to rely. Thus, the trial court’s assessment of his credibility as a witness is of the utmost importance. Apparently aware of this problem, the majority opinion states: “Although, on the issue of reasonable suspicion, the district court specially found only that Roberts did smell a ‘masking odor’ from the truck, its finding that this gave rise to reasonable suspicion that Bloomfield was carrying drugs indicates that the court treated Roberts’ testimony at the suppression hearing as credible.” Maj. op. at 915. This is the first step in the majority’s analytic alchemy. Because the district court believed one fact presented through Roberts’ testimony, the majority opinion assumes that the other testimony given by Roberts, which “implicitly” formed the basis of the judge’s ruling, was also credible. “[Credibility determinations are not an all-or-nothing proposition.” United States v. Cassidy, 6 F.3d 554, 557 (8th Cir.1993). I therefore find it difficult to understand how the majority opinion can implicitly assume that the rest of Roberts’ testimony was as credible as that which formed the basis of the district court’s lone factual finding as to reasonable suspicion. Except for a very brief comment with regard to the presence of a strong odor, the district court made no findings about the credibility of any other testimony. The proper application of Rule 12(e) would allow us to review, after remand, the substance of a district court’s ruling on a suppression motion without the danger of relying on evidence that may lack *922credibility.2 Without a remand for further findings, we have no way of knowing, on this record, which testimony, other than the trooper’s detection of a deodorant smell, the district court found credible.

The harm to Bloomfield which results from the majority’s application of this standard is obvious. The majority cites numerous facts from the PSR to support its conclusion as to reasonable suspicion which were taken from Roberts’ testimony at the suppression hearing. This manipulation of the record elevates facts from the PSR to the level of a district court’s findings of fact. The district court’s acceptance of a PSR for purposes of sentencing is not the same as a district court’s finding of fact. The underdeveloped record we have on appeal simply leaves us with too much “guesswork.” The. majority opinion avoids this obstacle to proper appellate review by engaging in post-hoc characterization which magically converts disputed testimony in the record into facts which the district court “implicitly” found. The approach disregards the established principle that appeals courts should refuse to rule before the record is fully developed. See Public Service Comm. v. Wisconsin Telephone Co., 289 U.S. 67, 69, 53 S.Ct. 514, 514-15, 77 L.Ed. 1036 (1933) (“[I]t is always desirable that an appellate court should be adequately advised of the basis of the determination of the court below_”). Therefore, I would remand this case to the district court for the factual findings required under Rule 12(e).

II. The Fourth Amendment Violation

The majority opinion discusses at great length Bloomfield’s argument that his seizure was a de facto arrest executed without probable cause. By contrast, it only briefly discusses whether the trooper had reasonable suspicion to detain and question Bloomfield beyond the scope of the initial traffic stop. This portion of its opinion, however, is most injurious to the protections of the Fourth Amendment. Though the majority opinion significantly lowers the standard for facts sufficient to allow expanded police inquiry beyond questions reasonably related to the purpose of the initial stop, the majority fails to address adequately recent cases from this circuit-which directly consider the issue of what circumstances permit expanded questioning. The majority opinion concedes: “Bloomfield and his truck were seized at the time of the initial stop, and that seizure extended throughout the waiting period until the dog ‘alerted’ to the truck.” Maj. op. at 916. Therefore, the relevant question is whether Trooper Roberts had a reasonable suspicion which would justify the expansion of the investigation beyond the scope of the original traffic stop. Because the majority opinion finds that “Officer Roberts had a reasonable suspicion that Bloomfield was transporting drugs when Bloomfield exited his rental truck,” I will not discuss the events after that point because they cannot properly inform the reasonable suspicion analysis in this matter. Maj. op. at 918.

In United States v. Barahona, 990 F.2d 412 (8th Cir.1993), the defendant, like Bloomfield, was pulled over for changing lanes without signalling. At the commencement of the analysis, the court stated: “For a detention to be reasonable, an officer’s questions must relate to the purpose of the stop. However, if the response of the detainee and the circumstances give rise to suspicions unrelat*923ed to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions.” Id. at 416. After summarizing the nature of the trooper’s investigation relating to the initial stop, the court recited those factors which justified an investigation beyond the initial traffic stop: “[A] customary computer cheek of Barahona’s license failed to verify its validity. Moreover, from reading the car contract, [the trooper] discovered that the car was rented under another name and was to be returned to Los Angeles in a few days, leaving Barahona only one or two days in St. Louis — an unusually short time for a long-distance vacation by car [Baraho-na’s stated reason for travel].” Id. The court concluded from these factors that the trooper had justification for a greater intrusion unrelated to the stop: “The totality of circumstances known to the trooper met the requisite level of reasonable suspicion under Terry and entitled him to detain Barahona until he had satisfied his suspicions [of drug trafficking].” Id.

The factors allowing expanded questioning in Barahona are significantly stronger than those cited by the majority opinion in the present case. All of the factors giving rise to reasonable suspicion in Barahona were premised on concrete facts which were not susceptible to the subjective perceptions of the trooper. Barahona’s name was not the name stated on the rental agreement. His license could not be verified. He said he was on vacation in St. Louis, but the rental agreement required that the car be returned to Los Angeles in two days at the most. These factors do not require the trooper to make a subjective evaluation of the detainee’s appearance. They are objectively suspicious. The majority opinion today concludes that red eyes, shaky hands, heavy breathing, radar detectors, a pager, a partially open window, and the strong scent of deodorant likewise create a reasonable suspicion that criminal activity is afoot. (As noted above, the only factor relied upon by the district court was the deodorant smell.) This type of evidence almost always comes in through testimony and is often contested. The district court has the job of hearing conflicting testimony, weighing credibility, and ultimately deciding whose version to believe. Such determination is especially critical in a case which rests in large part on the trooper’s evaluation of the appearance and demeanor of the detainee. Yet, in precisely the matter which most needs explicit findings, we have a conspicuous and irremediable absence of them.

However, even with such findings, I would not conclude that these facts rose to the level of reasonable suspicion. The objective factors which Trooper Roberts recounted — the presence of radar detectors, a pager, and the partially rolled-down window — are readily susceptible to myriad innocent explanations. This is especially true of the one fact found by the district court — the car deodorant. Furthermore, these factors and the majority’s heavy reliance upon the trooper’s subjective impressions of Bloomfield do not reach the level of evidence of a reasonable suspicion which we have required in prior precedent. See, e.g., United States v. Garcia, 23 F.3d 1381, 1334-35 (8th Cir.1994) (Garcia) (holding that the factors cited by the trooper as the basis for a reasonable suspicion were insufficient in part because many of the factors were susceptible to an innocent explanation); cf. United States v. Cummins, 920 F.2d 498, 501 (8th Cir.1990) (holding that expanded questioning after a traffic stop was reasonable in part because defendant lied about the name of his passenger).

The majority opinion also fails to discuss the inconsistency of its approach in the present case to the Fourth Amendment approach we took in Garcia. The majority opinion cites Garcia to support the following proposition: “If an officer can cite only one or two factors such as nervousness, hesitation in answering questions or out-of-state license plates, he may not have a reasonable suspicion to seize a person pending investigation.” Maj. op. at 918 n. 9. The majority opinion attempts to distinguish the present case by noting that Trooper Roberts cited at least “six factors” which excited his suspicion, but it fails to mention that in Garcia^ the trooper relied on eight factors which excited his suspicion. 23 F.3d at 1334-35. Despite these eight factors, the court found the seizure to be unreasonable. As the court in Garcia addressed each factor, it noted the difference *924between unusual behavior and behavior indicative of criminal activity, and recognized' the innocent explanations which could have dismissed the various factors upon which the trooper relied. Id.

The precedents cited above manifest a serious and appropriate concern for the protection of innocent activity. Today the majority opinion shows little regard for the protection of innocent activity, and cavalierly denies Bloomfield protection under the Fourth Amendment. In some sense, the Fourth Amendment provides a right to be left alone. This understanding is consistent with our foundational principles of “liberty” and “the pursuit of happiness.” When examining a search and seizure question against this historical and constitutional background, courts must be Argus-eyed in the protection of innocent activity from unreasonable intrusion. The majority opinion does not demonstrate such vigilance.

The majority opinion finds that there was no Fourth Amendment violation because even though Trooper Roberts’ investigation went beyond the scope of the initial stop, he had “a reasonable suspicion that Bloomfield was transporting drugs when Bloomfield exited his rental truck to accompany Roberts to the patrol car.” The majority opinion attempts to bolster this conclusion with facts from the PSR. The first factor is the act of “fidgeting,” and with regard to this “incriminating” action, the majority opinion observes: “Although it is customary for people to be ‘somewhat nervous’ when Roberts pulls them over, it is unusual for people to ‘fidget’ as Bloomfield did when the stop is a ‘normal routine’ traffic stop.” Maj. op. at 918-19. The fact that the distinction between “somewhat nervous” and “fidgeting” is cited in the majority opinion to support its conclusion as to reasonable suspicion eloquently exposes the weakness of the foundation underlying its result. At the point when Bloomfield exited the vehicle, I reiterate that the only relevant factual finding was that Roberts detected a strong odor. (Such odor is pejoratively referred to as a “masking odor,” but, of course, all deodorants mask other less desirable smells.) Beyond this fact, we have only the trooper’s disputed testimony. Even accepting the majority’s assumption that the facts gleaned from the PSR formed the basis of the district court’s ruling, I do not believe that there was a reasonable suspicion of criminal activity at the moment Bloomfield exited the vehicle. Once Bloomfield’s license and rental agreement had been verified, he should have been allowed to go on his way. Viewing the totality of the circumstances up to the point where the majority opinion finds a reasonable suspicion, a large group of innocent motorists could also be called into suspicion. Even the “masking odor” factor could apply to the millions of motorists who use car deodorizers.

From the evidence seized in violation of the Fourth Amendment, we learned that Bloomfield was transporting marijuana, but that is irrelevant to the exclusionary rule. The Fourth Amendment is still part of the Constitution. The police cannot be allowed to engage, without reasonable suspicion, in intrusive practices likely to invade the privacy of a large number of innocent citizens in the name of drug interdiction. See Garcia, 23 F.3d at 1336 (“We are not empowered to suspend constitutional guarantees so that the government can more effectively fight the war on drugs.”); see also United States v. McKines, 933 F.2d 1412, 1433 (8th Cir.) (en banc) (Lay, J., dissenting) (“Courts remain a bulwark against the erosion of civil liberties brought on by the war on drugs.”), cert. denied, — U.S. -, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). The majority opinion gets the bad guy, but it also sacrifices the privacy of interstate motorists who now have cause to be even more wary of the patrol car in the rear view mirror.

Because I believe the majority opinion conveniently, but wrongly, disregards the long-established principles of appellate review in its haste to uphold a seizure which was unreasonable under the still extant Fourth Amendment, I respectfully dissent.

. The majority opinion claims that the court in United States v. Williams, 951 F.2d 1287 (D.C.Cir.1992), sent the case back to the district court because the absence of the trial court's legal basis for its ruling "was the dispositive ground for remand." Maj. op. at 914 n. 2. This is incorrect. The court plainly stated: "The problem we have with this case is twofold.” Williams, 951 F.2d at 1289 (emphasis added). The court further stated: "The record is remanded for the factual findings required by Rule 12(e) as well as a statement by the district court of the conclusions of law it has reached on those findings.” 951 F.2d at 1291 (emphasis added); see also United States v. Williams, 22 F.3d 1123 (D.C.Cir.1994).

. The majority opinion draws an analogy to Rule 52(a) of the Federal Rules of Civil Procedure. It notes that an appellate court may affirm a decision based on incomplete findings if there can be no genuine dispute about how the trial court actually resolved the facts missing for the express findings. Charles v. Allstate Ins. Co., 932 F.2d 1265, 1269 (8th Cir.1991) (Charles). However, this circuit has held the failure to make findings of fact may be harmless error only where most relevant facts are undisputed. Associated Elec. Co-op v. Mid-America Transp., 931 F.2d 1266, 1272 (8th Cir.1991); see Squirtco v. The Seven-Up Co., 628 F.2d 1086, 1092 (8th Cir.1980) (holding that the failure to make formal findings of fact may be excusable error where the facts are uncontroverted). In the present case, Bloomfield specifically disputed many facts gleaned by the probation officer from Roberts' testimony at the suppression hearing. The majority opinion now uses these same controverted facts to support its ruling. I believe the well-established principle that “generally, a tried court’s failure to make findings of fact necessitates a remand” should apply a fortiori in a case where a constitutional guarantee is at stake. See Charles, 932 F.2d at 1269.