United States v. Kou Yang

BRIGHT, Circuit Judge,

dissenting.

I respectfully dissent. This case centers on a fact-intensive inquiry where police officers searched Kou Yang’s car on three separate occasions.1 I agree with the majority that we must focus on whether, at the time the trooper decided to further detain Yang’s ear to await the arrival of *657the canine unit, the trooper had a reasonable suspicion that Yang may be engaged in criminal activity other than the basis for the stop.

I begin with the factual background pri- or to the decision to bring in the canine unit. Trooper Anderson decided to stop Yang’s car based on a window tint violation. Before deciding to search Yang’s car, Trooper Anderson explained that fifteen reasons supported his suspicion that Yang was engaged in criminal activity: (1) Trooper Anderson was unfamiliar with anyone flying to pick up a car bought over the internet; (2) Yang indicated he began his travels in Texas, a drug source state; (3) Yang indicated he was in a hurry to get home, but was driving in short 200-mile intervals; (4) Yang was uncertain of the exact date he began his travel; (5) Trooper Anderson observed food and toilet paper in Yang’s car; (6) Yang had a cell phone and an atlas in the front seat of the car; (7) Yang paid half of the car’s purchase price prior to seeing the car; (8) the car’s license plates were not registered to Yang; (9) Yang drove below the speed limit; (10) the mileage on the car’s title did not reflect the miles on the car at the time the trooper stopped it; (11) Yang had paid for repairs to the car after purchasing it; (12) “Yang gave an uncommon answer when the trooper asked about crime in [Yang’s] neighborhood”; (13) Yang initially answered the trooper’s question regarding drugs in a calm manner; (14) Yang gave a general response about where he had the car fixed; and (15) “Yang was driving a newly-purchased vehicle, and only had one key on the key ring.”

After Trooper Anderson issued Yang a ticket for the tinted windows, Yang consented to a search of his car. Trooper Anderson did not find any incriminating evidence in the ear’s trunk. In a side pocket on the driver’s side door, Trooper Anderson located a yellow receipt from an auto glass shop in San Diego, California. Previously, Yang indicated to the trooper that he had the windshield replaced on the car. Trooper Anderson also discovered a white receipt from a Firestone store in El Paso, Texas. Prior to the discovery of the receipt, Yang told the trooper he had either the back tire or rim on the car fixed in Texas.

In answering a question from the trooper, Yang indicated that he had been in California visiting his mother, and that he did not tell the trooper every step of his trip. At this point, Trooper Anderson testified to noticing a change in Yang’s demeanor, including a change in body language, tone of voice, and that Yang appeared to become more agitated. Trooper Anderson’s further search of the car uncovered a set of new screwdrivers. Yang explained he purchased the screwdrivers after he locked the keys in the car.

As the majority explained, whether Trooper Anderson had reasonable suspicion to detain Yang’s car for a canine sniff must exist based on the facts up to this point. Based on the facts to this point, the district judge did not err in finding that Trooper Anderson lacked reasonable suspicion to further detain Yang’s car.

This court reviews district court’s findings of historical fact for clear error and determination of reasonable suspicion and probable cause de novo. United States v. Beck, 140 F.3d 1129, 1133 (8th Cir.1998). In determining, whether a law enforcement officer has reasonable suspicion to search, courts focus on “the totality of the circumstances, in light of the officer’s experience.” United States v. Bloomfield, 40 F.3d 910, 918 (8th Cir.1994). Courts give deference to the experience and expertise of law enforcement officers in determining *658whether certain conduct is suspicious.2 However, the Supreme Court pointed out that our review must give “due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The Supreme Court explained:

A trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise, a police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference.... The background facts, though rarely the subject of explicit findings, inform the judge’s assessment of the historical facts.

Id. at 699-700, 116 S.Ct. 1657.

Though each factor giving rise to suspicion might appear to be innocent when viewed alone, a combination of factors may warrant further investigation when viewed together. United States v. Linkous, 285 F.3d 716, 720 (8th Cir.2002). An officer’s suspicion may grow as the circumstances unfold and more suspicious facts are discovered. Id. However, as the district court explained, the reverse is also true. Certain facts that are discovered may also lessen the importance of previously suspicious factors.

While we are mindful that “conduct which would be wholly innocent to the untrained observer ... might acquire significance when viewed by an agent who is familiar with the practices of drug [traffickers] and the methods used to avoid detection, ... it is impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation.”

United States v. Beck, 140 F.3d 1129, 1137 (8th Cir.1998) (citations omitted). Further, “[c]onduct typical of a broad category of innocent people provides a weak basis for suspicion.” United States v. Weaver, 966 F.2d 391, 394 (8th Cir.1992).

In Beck, we held that the totality of seven innocent factors did not create reasonable suspicion to warrant Beck’s continued detention. 140 F.3d at 1137. In making this determination, we examined each individual factor to discuss its wholly innocent nature. Id. at 1137-39; see also United States v. Yousif, 308 F.3d 820 (8th Cir.2002) (holding district court erred in denying motion to suppress because innocent factors did not support a finding of reasonable suspicion).

Here, the court undertook a similar analysis to discount Trooper Anderson’s factors he stated supported a reasonable suspicion. First, the district court explained that many of the trooper’s initial fifteen reasons were wholly innocent, and fit a large number of the general population. “General profiles that fit large numbers of innocent people do not establish reasonable suspicion.” United States v. Yousif, 308 F.3d 820, 828 (8th Cir.2002). The district court noted the possession of a cell phone and an atlas do not establish *659reasonable suspicion, and Trooper Anderson testified that he possessed both items in his patrol car. The district court also discounted the presence of a screwdriver set in the car as consistent with innocent ear ownership.

Further, the court rejected the presence of food and toiletry items in the car because Trooper Anderson “provided no basis for his supposition that the carrying of food stuffs and toiletry items in a car is indicative of drug trafficking activity.” At the suppression hearing, the magistrate judge admitted to having similar items in his car. This Circuit has previously held that the presence of food wrappers in a car is consistent with innocent travel. See United States v. Beck, 140 F.3d 1129, 1138 (8th Cir.1998). Trooper Anderson offered no basis for his supposition that the presence of common items constitutes an identifier of drug trafficking activity. Similar to the circumstances in Beck, Trooper Anderson merely recounted that he had seen the presence of similar items during stops of other drug traffickers. Id. at 1139.

In addition, the district court explained that reasonable suspicion could not be established by Yang’s driving a car with Texas license plates. Yousif, 308 F.3d at 828 (holding that driving a car with out of state plates on a highway known to be a drug corridor did not support reasonable suspicion to stop the defendant’s car); see also United States v. Gray, 213 F.3d 998, 1001 (8th Cir.2000) (“[t]oo many people fit this description for it to justify a reasonable suspicion of criminal activity”). Out of state plates are consistent with innocent behavior and are not probative of reasonable suspicion. Beck, 140 F.3d at 1137.

Next, the district court discounted factors that became less suspicious after Trooper Anderson searched Yang’s car. For example, instead of suspicion being bolstered as more information was revealed, the discovered receipts confirmed that Yang made repairs to the car. Further, Trooper Anderson testified that Yang’s story regarding the car’s purchase made him suspicious because he “had never ran into anybody who had done that before [purchase a car over the internet], and through my training and experience, criminal — people involved in criminal activity have in the past flown to pick up vehicles from a certain location and drive them back.” Trooper Anderson also explained that Yang’s driving below the speed limit and taking days to return home, “seemed strange” when Yang said he was in a hurry to return home.’ Thus, Trooper Anderson’s suspicion for these two factors was not based on experience and training, but rather a “hunch.” See United States v. Campbell, 843 F.2d 1089, 1093-94 (8th Cir.1988) (“the officers must be acting on facts directly relating to the suspect or the suspect’s conduct and not just on a ‘hunch’ ”).

In addition, the district court explained the subsequent search verified Yang’s story that he purchased the car from the internet. Trooper Anderson found a copy of the internet posting of the car. Trooper Anderson explained he was suspicious because the car was not registered to Yang and drug traffickers frequently do not have the car registered in their name to distance themselves from the crime. However, the fact that Yang recently purchased the car would explain why the car was not registered to Yang. Trooper Anderson also noted that the car’s title had been signed over to Yang yet did not explain how the failure to register the car but sign the title supported reasonable suspicion.

Next, Trooper Anderson testified the presence of a single key was suspicious because drug traffickers generally try and *660limit access to the trunk area of the car. The district court discounted Trooper Anderson’s contention since the single key became less suspicious when Yang consented to a search of the car’s trunk.

Finally, the district court observed that the change from Yang’s calm demeanor to a nervous and agitated one after Trooper Anderson told Yang he was calling in the canine unit does not support a finding of reasonable suspicion.3 United States v. White, 890 F.2d 1413, 1418 (8th Cir.1989) (“becoming nervous when one is confronted by officers of the law is not an uncommon reaction.”). Under similar circumstances, I suspect that many innocent travelers would become frustrated, nervous, and agitated when, after being detained for a lengthy period of time, law enforcement officers stated they wanted to conduct a second search of the car. See Yousif, 308 F.3d at 829 (“Finally, the checkpoint was not where the police signs indicated it would be and, therefore, any motorist would likely be surprised upon discovering it. Under such circumstances, even an innocent traveler might be inclined to hesitate out of surprise, annoyance, or nervousness.”).

While Trooper Anderson explained generally that the individual factors, taken together, supported reasonable suspicion, Trooper Anderson did not base some of the factors on his professional experience, rather on his personal opinion. See United States v. Johnson, 171 F.3d 601, 604 (8th Cir.1999) (holding law enforcement officers must explain their inferences and deductions). For instance, he explained Yang’s paying for half of the car, sight unseen, was suspicious because “I just put that in my own personal thoughts. I wouldn’t myself pay for any vehicle up front if I hadn’t seen it, and it just caught me off guard.” In addition, regarding the discrepancy between the mileage on the ear and on the title Trooper Anderson commented, “I didn’t understand why the mileage would be incorrect when you are supposed to put the mileage down on the title when you transfer the vehicle.” Trooper Anderson did not indicate how this factor raised suspicion that Yang might have been engaged in criminal activity.

The additional “suspicious” circumstances noted by Trooper Anderson are questionable also. Those occurred after Yang’s initial illegal detention and before the trooper obtained Yang’s consent to search. Trooper Anderson would never have obtained this information but for his illegal detention of Yang after issuing the ticket. Courts should be wary of relying on ambiguous conduct that law enforcement officers have provoked. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (“A contrary holding here would mean that a vague suspicion could be transformed into probable cause for arrest by reason of ambiguous conduct which the arresting officers themselves have provoked.”).

While courts should give deference to the expertise and specific knowledge that law enforcement officers have to suspect and detect drug activity, the district court properly concluded the totality of the circumstances did not support a reasonable suspicion for further detention of Yang’s *661car to await the canine unit.4 The able and experienced district court judge thoroughly examined and analyzed the facts in determining that the trooper violated Yang’s Fourth Amendment rights. Here the inferences from the facts can and do support the district judge’s decision. No clear error existed, but merely a difference of views between the majority and the district court on inferences to be drawn from the evidence. This difference does not amount to clear error. Thus, I would affirm the district court.

. Yang consented to the first search where Trooper Anderson searched the trunk and passenger compartment of Yang’s vehicle on the roadside. In the second search, law enforcement searched Yang’s vehicle at a nearby truck stop. The third search, based on a search warrant, occurred the following day. In addition, a drug dog sniffed both the exterior and interior of Yang’s car while stopped on the interstate. A canine sniff of Yang’s car, while on the highway, does not constitute a search for Fourth Amendment purposes. United States v. $404,905.00, 182 F.3d 643, 647 (8th Cir.1999) (citing United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)).

. The Supreme Court explained "a police officer may draw inferences based on his own experience in deciding whether probable cause exists. To a layman the sort of loose panel below the back seat armrest in the automobile ... may suggest only wear and tear, but to Officer Luedlce, who had searched roughly 2,000 cars for narcotics, it suggested that drags may be secreted inside the panel.” Ornelas v. United States, 517 U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Many of the factors Trooper Anderson relied on were not of the kind noted in Ornelas. Trooper Anderson did not note any particular factors that made him suspect drugs were concealed in the car, such as missing screws, loose panels, or paint oversprays.

. The district court also rejected the contention that Yang's initially calm demeanor was suspicious. The court explained "there has been no showing that Trooper Anderson’s questioning technique is objectively reasonable. Indeed, the response which Trooper Anderson finds suspicious is the opposite of that normally through [sic] to be suspicious, overly overt nervousness.” It is difficult also to perceive that if someone is calm under one situation, his actions are suspicious, but if he acts agitated, suspicion also arises.

. The court concluded that the sum of "circumstances relied upon by the government when examined in light of Trooper Anderson’s training and expertise do not give rise to a reasonable, articulable suspicion that defendant Yang was engaged in criminal activity at the time that he informed defendant Yang that he was not going to permit him to leave with his car."