United States v. Robert Salzano

BRISCOE, Circuit Judge,

dissenting.

I respectfully dissent. In my view, Trooper Guerrero had reasonable articulable suspicion which justified his detention of Salzano. I would affirm Salzano’s conviction, but remand for further factfinding on the “safety valve” issue he raises.

In an appeal from the district court’s denial of a motion to suppress, findings of historical fact are reviewed only for clear error, but whether the historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion is a question of law subject to de novo review on appeal. Ornelas v. United States, 517 U.S. 690, 696-97, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). While the government bears the burden of showing the detention was reasonable, United States v. Carhee, 27 F.3d 1493, 1496-97 (10th Cir.1994), on appeal, we consider the totality of the circumstances and view the evidence in the light most favorable to the government. United States v. Villa-Chaparro, 115 F.3d 797, 800-01 (10th Cir.1997), cert. denied — U.S. -, 118 S.Ct. 326, 139 L.Ed.2d 252 (1997).

An investigative detention short of full arrest must be supported by reasonable articu-lable suspicion — a particularized and objective basis for suspecting the person stopped of criminal activity. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An inchoate and unpar-ticularized suspicion or hunch is insufficient. The Fourth Amendment requires some minimal level of objective justification for the detention. That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence, and less than the fair probability that contraband or evidence of a crime will be found that is required for probable cause. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

In evaluating the validity of an investigative detention, the courts must consider “the totality of the circumstances — the whole picture.” Id. at 8, 109 S.Ct. 1581. A minimum number of factors is not required nor are there any outcome determinative criteria, as such an approach would be antithetical to the totality of the circumstances inquiry. United States v. Lopez-Martinez, 25 F.3d 1481, 1484 (10th Cir.1994).

Wholly lawful conduct may justify suspicion of criminal activity. Factors which are not by themselves proof of illegal conduct and are consistent with innocent travel may, taken together, amount to reasonable suspicion. Sokolow, 490 U.S. at 9-10, 109 S.Ct. 1581. In making a determination of reasonable suspicion, “our task ... is not to pigeonhole each purported fact as either consistent with innocent travel or manifestly suspicious. Rather, the reasonable suspicion calculus turns on whether the specific articulable facts, viewed together through the lens of a reasonable law enforcement officer, justified a brief roadside detention.” United States v. Doyle, 129 F.3d 1372, 1376 (10th Cir.1997).

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about *1116human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Cortez, 449 U.S. at 418, 101 S.Ct. 690. Trained officers aware of the modes and patterns of operation of certain kinds of lawbreakers can draw inferences and make deductions that might well elude untrained persons. Id.

The majority relies on United States v. Wood, 106 F.3d 942, 946 (10th Cir.1997), and United States v. Lee, 73 F.3d 1034, 1039 (10th Cir.1996), to individually discard each factor and then conclude no factors remain to support reasonable suspicion. In Wood and Lee, the court found some factors relied on by police must be dismissed outright as so innocent or so susceptible to varying interpretations as to be innocuous. Here, the majority departs from the totality of the circumstances approach mandated by the Supreme Coui-t by applying Wood and Lee as authority to review each factor individually and then discount each one as having a potentially innocent or innocuous explanation.

By the very nature of the question presented, all factors relied on to establish reasonable suspicion are ambiguous and consistent with either innocent or criminal activity. Factors such as masking odors, implausible and inconsistent travel plans, and nervousness are all inherently ambiguous and could be consistent with either innocence or with transportation of drugs. Masking odors are chosen because they could have an innocent explanation such as the spilling of laundry detergent. There also could be innocent explanations for implausible and inconsistent travel plans. If a factor offered to support reasonable suspicion is not ambiguous, such as an officer directly seeing or smelling drugs, the factor would support a finding of probable cause and reasonable suspicion would no longer be the question. See, e.g., United States v. Nielsen, 9 F.3d 1487, 1489-91 (10th Cir.1993); United States v. Morin, 949 F.2d 297, 299-300 (10th Cir.1991); United States v. Bowman, 487 F.2d 1229, 1231 (10th Cir.1973).

We must be cautious in applying Wood and Lee and reject only those factors that are wholly innocent and those that do not suggest criminal activity at all, such as the fast food wrappers and maps in Wood. If a factor can be discounted simply because we can supply an innocent explanation for it, there would never be reasonable suspicion because all factors (short of those which would supply probable cause) can be discounted.

I question whether nervousness can be rejected outright. While nervousness is so common among persons stopped for traffic violations that it does not provide significant support for suspicion of more serious criminal activity, we have recognized nervousness as one of the totality of circumstances that can provide some support for reasonable suspicion. See, e.g., United States v. Soto-Cervantes, 138 F.3d 1319, 1324 (10th Cir.1998), petition for cert. filed (June 10, 1998); United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir.1998); United States v. Soto, 988 F.2d 1548, 1556 (10th Cir.1993).

The majority totally discounts Salzano’s nervousness because Trooper Guerrero had no prior acquaintance with him. While we have suggested in several cases that officers’ generic claims of nervousness are of little weight where the officer does not know the stopped driver, see Wood, 106 F.3d at 948; United States v. Bloom, 975 F.2d 1447, 1458 (10th Cir.1992), overruled on other grounds United States v. Little, 18 F.3d 1499, 1504 (10th Cir.1994); United States v. Hall, 978 F.2d 616, 621 (10th Cir.1992), in numerous cases we have considered nervousness as a factor supporting reasonable suspicion without noting whether the officer knew the stopped driver or not. See, e.g., Soto-Cervantes, 138 F.3d at 1324; Hunnicutt, 135 F.3d at 1350; Soto, 988 F.2d at 1556. To totally discount an officer’s observations of behavior of a stopped driver that is consistent with nervousness because the officer had no prior acquaintance with the driver defies eommonsense and practical experience. It is highly unlikely that an officer conducting a traffic stop will know the stopped driver, but officers can compare an individual’s behavior *1117with the behavior of others they have observed. Although Trooper Guerrero acknowledged it was not unusual for people stopped for traffic violations to appear nervous, he said the shakiness he observed in Salzano was unusual. I would not discount Salzano’s nervousness outright, but would consider it as a part of the totality of circumstances that can provide some support for reasonable suspicion.

Further, Salzano’s implausible travel plans were neither innocuous nor insignificant. The rental agreement showed the rent for the R.V. was $3,900 and Salzano told the officer the R.V. got 6.7 miles per gallon. While there could be many innocent explanations for the use of such an expensive means for one person to travel across the United States, it was so unusual that it is a legitimate factor supporting suspicion of drug trafficking. Cf. Sokolow, 490 U.S. at 8-9, 109 S.Ct. 1581. Moreover, the inconsistency between the notation on the rental agreement of a party of three and the fact that Salzano was traveling alone was a legitimate consideration. The majority finds it significant that the R.V. was not riding low; however, one obvious reason for renting a large vehicle to transport drugs is a large vehicle can carry heavier loads without riding low.

I would also conclude the evergreen odor cannot be discounted outright. While the use of pine or evergreen as a masking odor was new to the officer, he was aware drug couriers use a variety of masking agents. See Villa-Chaparro, 115 F.3d at 801 (laundry detergent); United States v. Christian, 43 F.3d 527, 530 (10th Cir.1994) (freshly-lit cigarette); United States v. Sanchez-Valderuten, 11 F.3d 985, 989 (10th Cir.1993) (coffee and air freshener); United States v. Stone, 866 F.2d 359, 362 (10th Cir.1989) (patchouli oil). We have repeatedly recognized that air fresheners are often used as masking agents and it is common knowledge that air fresheners are frequently pine or evergreen scented. One of the most common automobile air fresheners is in the shape of a pine tree. See Car-Freshner Corp. v. S.C. Johnson & Son, Inc., 70 F.3d 267 (2d Cir.1995). In light of the variety of masking agents used in the drug trade, it was not unreasonable for the officer to believe the pine or evergreen scent could be a masking odor intended to hide the odor of drugs. We must give deference to the officer’s ability to draw inferences and make judgments that might elude an untrained person. Cortez, 449 U.S. at 418, 101 S.Ct. 690. Nor should we discount the evergreen odor as a factor outright merely because a fresh evergreen wreath displayed during the Christmas season is the apparent source of the odor. Masking odors provide support for reasonable suspicion even when their source is visible, see Villa-Chaparro, 115 F.3d at 802; Christian, 43 F.3d at 530, regardless of whether the odor is appropriate or inappropriate for the season.

The evergreen odor, combined with Salza-no’s nervousness and his use of an unusually expensive means for one person to travel across the United States in the winter, were sufficient to establish reasonable suspicion that he was transporting drugs. Cf. United States v. Mendez, 118 F.3d 1426, 1431-32 (10th Cir.1997) (contradictory, implausible travel plans, crooked dashboard face plate, and dismounted radio, suggesting possible hidden compartment, held sufficient); Sanchez-Valderuten, 11 F.3d at 989 (unlikely route, masking odors, and evasion of officer’s questions held sufficient); Stone, 866 F.2d at 362 (masking odor and DEA computer indication that defendant was suspected of involvement in drug trafficking held sufficient). I would affirm the district court’s ruling that Salzano’s detention was supported by reasonable suspicion.

As a consequence of concluding Salzano’s detention was supported by reasonable suspicion, I would address Salzano’s sentencing issues and conclude only his “safety valve” issue has merit and remand for further fact-finding and potential resentencing.

Salzano contends he was entitled to a reduced sentence under the “safety valve” provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1 .2. Under the “safety valve” provision, the statutory minimum sentence for certain drug crimes is inapplicable if the court finds the defendant has a minimal criminal history, did not use or threaten violence, possess a dangerous weapon, cause death or serious bodily injury, was not a leader, organizer, or *1118supervisor of others in the offense, was not engaged in a continuing criminal enterprise, and “not later than the time of the sentencing hearing ... had truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” § 5C1.2. The government agreed Salzano met all but the last requirement. It did not believe he told everything he knew about the crime. In particular, the government was skeptical about Salzano’s professed ignorance about the intended recipients of the drugs. It was also skeptical of his professed ignorance of any specific identifying information about the source of the drugs other than their fairly common names and general descriptions. The government found Salzano’s professed ignorance implausible in light of his age, education, and business experience. However, because the government lacked hard evidence of nondisclosure, it offered to consider a report from a reputable polygraph examiner, something it usually would not do. Salzano did not provide a polygraph report before sentencing.

A defendant bears the burden of proving the applicability of the safety valve provision by a preponderance of the evidence. United States v. Verners, 103 F.3d 108, 110 (10th Cir.1996). The district court’s decision is reviewed only for clear error. United States v. Roman-Zarate, 115 F.3d 778, 784 (10th Cir.1997).

Salzano presented expert evidence that it is likely a courier would not know the drug recipient’s identity and would not necessarily know in advance the details of the delivery. Couriers are told only what they need to know. Typically, a courier is told to drive to a specific location and to wait, or the courier is given a phone number to call upon arrival at a destination city for instructions. Lack of evidence of phone calls to the east coast indicates Salzano did not know the recipients, and lack of evidence of unexplained wealth or prior involvement in drug distribution indicated Salzano was a mere courier with no ownership interest in the drugs.

The government took the position that Sal-zano’s statement at his presentence debriefing that he did not know the recipients was inconsistent with statements made to the officers on the day of his arrest. In the only specific finding of fact on the issue, the district court agreed. However, Salzano did not make inconsistent statements. His statements to the officers on the day of his arrest show only he knew enough about the recipients to be afraid they would kill him or his family if they learned he cooperated. He may have been warned by the source or may have simply made a reasonable assumption. Nor do his statements that he would carry out a controlled delivery if he got a “real good deal” from the government show he knew the recipients because it is common for couriers not to know the identities of recipients.

Because the only finding of fact supporting the conclusion that Salzano did not disclose everything he knew about the crime was clearly erroneous, I would remand for further factfinding on the question of whether the safety valve provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 applies in this case.