State v. Kenyon

ZINTER, Justice

(concurring specially).

[¶ 29.] I concur and write only to add that at the time the trial court ruled in this case, it did not have the benefit of the United States Supreme Court decision we *277use in our “reasonable suspicion” analysis today.

[¶ 30.] In analyzing the reasonable suspicion issue in 2001, the trial court considered each of the officers’ articulated factors in isolation. The trial court then discounted many of the individual factors because, when standing alone, they were susceptible of innocent explanation. For example, the trial court attached some negative inference to the fact that this was a “young officer.” The trial court also discounted the suspicion arising from the observation of trash and junk in the backseat of the vehicle that Kenyon said he had just purchased. The trial court finally discounted the suspect’s sweating and nervousness by making the three observations: the trial court observed that there was nothing wrong with wearing long sleeved shirts; it observing that sweating occurs for “numerous reasons”; and it observed that although there was an unusual degree of nervousness displayed, nervousness “standing alone” was not sufficient to establish reasonable suspicion.

[¶ 31.] Unfortunately, at the time the trial court undertook this analysis, it did not have the benefit of the recent decision in Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Arvizu clarified that courts should not analyze the reasonable suspicion factors standing alone: a process the Supreme Court described as a “divide- and-conquer” analysis. Arvizu, 534 U.S. at 274, 122 S.Ct. at 751, 151 L.Ed.2d 740, 750. The Supreme Court also rejected an analysis that discounts individual factors that could have some innocent explanation. Id. at 274, 122 S.Ct. at 751, 151 L.Ed.2d 740, 750. The Supreme Court ruled that even though individual factors may be susceptible to innocent explanation, the Terry analysis requires that they must be considered together to determine whether a further investigation is warranted. Id. at 274, 122 S.Ct. at 751, 151 L.Ed.2d 740, 750 (citing Terry, 392 U.S. at 22, 88 S.Ct. at 1868, 20 L.Ed.2d at 906). The Supreme Court noted that “[although each of [a] series of acts [is] ‘perhaps innocent in itself,’ ” taken together they may collectively amount to reasonable suspicion and “warrant further investigation.” Id. at 274, 122 S.Ct. at 751, 151 L.Ed.2d 740, 750. Additionally, the Supreme Court reiterated that in determining whether an officer has a particularized and objective basis for suspecting legal wrongdoing, officers may draw upon their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. Id. at 274, 122 S.Ct. at 751-52, 151 L.Ed.2d 740.