dissenting.
I respectfully dissent. I do not agree with the majority’s determination that there was reasonable suspicion to justify prolonging the detention of Defendant beyond the scope of a routine checkpoint stop. See United States v. Pierre, 958 F.2d 1304, 1308-09 (5th Cir.), cert. denied sub nom., Harris v. United States, — U.S. -, 113 S.Ct. 280, 121 L.Ed.2d 207 (1992); United States v. Martinez-Fuerte, 428 U.S. 543, 558-59, 96 S.Ct. 3074, 3083-84, 49 L.Ed.2d 1116 (1976); State v. Affsprung, 115 N.M. 546, 549, 854 P.2d 873, 876 (Ct.App.), cert. denied, 115 N.M. 545, 854 P.2d 872 (1993); State v. Estrada, 111 N.M. 798, 799, 810 P.2d 817, 818 (Ct.App.1991).
This Court has consistently delineated the constitutional scope of a border patrol checkpoint stop as not requiring any individualized suspicion of wrongdoing provided the brief stop is limited to an inquiry into citizenship and a visual inspection of vehicles. Affsprung, 115 N.M. at 549, 854 P.2d at 876 (citing United States v. Sanders, 937 F.2d 1495 (10th Cir.1991), cert. denied 502 U.S. 1110, 112 S.Ct. 1213-14, 117 L.Ed.2d 451 (1992)); Estrada, 111 N.M. at 799, 810 P.2d at 818 (citing Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074); see also State v. Galloway, 116 N.M. 8, 10-11, 859 P.2d 476, 478-79 (Ct.App.1993) (“[Rjeasonable suspicion is the standard by which to judge detention at a checkpoint which extends beyond the time necessary for agents to satisfy themselves about the citizenship of a vehicle’s occupants[.]”) (citing Pierre, 958 F.2d at 1308) (Fifth Circuit interpreted and applied Martinez-Fuerte as limiting scope of border patrol checkpoint stop to brief questions regarding citizenship and request for production of citizenship documentation to further the governmental interest in preventing influx of illegal aliens.), cert. denied, — U.S. -, 113 S.Ct. 280, 121 L.Ed.2d 207 (1992).
“ ‘Individualized suspicion’ ” and “ ‘reasonable suspicion’ ” are used interchangeably. Estrada, 111 N.M. at 801, 810 P.2d at 820. In order to extend the detention beyond the scope of a routine checkpoint stop, reasonable suspicion is the proper legal standard. Affsprung, 115 N.M. at 549, 854 P.2d at 876; see Estrada, 111 N.M. at 799, 810 P.2d at 818. This Court in Estrada reversed the trial court’s denial of a motion to suppress evidence seized at the secondary detention area because the border patrol had extended the detention beyond the purposes of a checkpoint stop when they referred defendants to the secondary area even though defendants had already provided the proper citizenship documentation at the primary inspection area. 111 N.M. at 798, 800, 810 P.2d at 817, 819. Absent reasonable suspicion to continue the detention, defendants’ fourth amendment rights were violated because the border patrol exceeded the scope of the checkpoint stop. Id. at 800, 810 P.2d at 819. The rationale behind this Court’s determination that “if the issues of residence or citizenship are resolved at the primary area of the checkpoint, referral of a vehicle to the secondary area must be based on at least reasonable suspicion of wrongdoing[,]” id. at 799, 810 P.2d at 818, was stated as follows: “Any other result would give border agents unlimited discretion to detain vehicles even though the limited reasons for the original detention had already expired.” Id. at 800, 810 P.2d at 819.
The scope of an intrusion following a stop has to be strictly linked to and warranted by the circumstances which make the initial intrusion permissible. See State v. Reynolds, 117 N.M. 23, 26, 868 P.2d 668, 671 (Ct.App. 1993), cert. granted, 117 N.M. 328, 871 P.2d 984 (1994). In the instant case, once the inquiry into Defendant’s citizenship and a visual inspection of his vehicle had been made, see Affsprung, 115 N.M. at 549, 854 P.2d at 876, the purpose of the stop had been effectuated. See Reynolds, 117 N.M. at 27, 868 P.2d at 672 (Where purpose of stop was safety concern and not any violation of the law, “fact that the officer had a legitimate reason to stop the vehicle and caution the hitch-hiker-passengers about the danger of dangling their feet over the tailgate does not create a reasonable suspicion that the driver was unlicensed or the vehicle was stolen.” This Court held that the officer violated the Fourth Amendment and exceeded the scope of the initial stop by requiring production of driver’s licenses, registration, proof of insurance, and conducting a “wants and warrants” check on all the occupants of the vehicle.)
Whether or not there is “ ‘[reasonable suspicion’ [to support the detention] is judged by an objective standard: would the facts and inferences available to the officer warrant the officer, as a person of reasonable caution, to believe the action taken was appropriate.” State v. Lyon, 103 N.M. 305, 307, 706 P.2d 516, 518 (Ct.App.), cert. denied, 103 N.M. 287, 705 P.2d 1138 (1985). Furthermore, “[t]he officer must be able to articulate specific facts and reasonable inferences drawn from those facts.” Id. To determine whether the border patrol had reasonable suspicion to further detain Defendant at the checkpoint, this Court examines the totality of the circumstances at the time of the stop. Estrada, 111 N.M. at 801, 810 P.2d at 820.
In this case, Defendant was stopped at the 1-10 border patrol checkpoint west of Las Cruces where he provided Agent Robinson (Robinson) with the proper citizenship documentation at the primary inspection point thereby demonstrating that his citizenship documentation was in order and that he was in this country legally. There were only two individualized facts articulated by Robinson which could possibly have made him suspicious: (1) the presence of two air fresheners in Defendant’s vehicle along with a strong smell of air freshener emanating from the vehicle; and (2) Defendant’s appearance of nervousness illustrated by his shaking hands and darting eyes. Because both facts are consistent with entirely innocent behavior, I cannot agree with the majority’s determination that there was reasonable suspicion to support Defendant’s further detention. See State v. Galvan, 90 N.M. 129, 133, 560 P.2d 550, 554 (Ct.App.1977). (Neutral conduct does not provide reasonable suspicion.). “At a minimum, however, the suspicious conduct relied upon by law enforcement officers must be sufficiently distinguishable from that of innocent people under the same circumstances as to clearly, if not conclusively, set the suspect apart from them.” Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App.1991) (en banc) (citing Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979)). Furthermore, I am not persuaded by the majority’s reliance on United States v. Sokolow, 490 U.S. 1, 9-10, 109 S.Ct. 1581, 1586-87, 104 L.Ed.2d 1 (1989) (quoting Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980)), for the proposition that there are “circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot.” In Sokolow, the United States Supreme Court found a pattern of criminality in otherwise innocent behavior where the defendant’s actions included: (1) very nervous behavior; (2) using an alias to purchase plane tickets; and (3) the action which the United States Supreme Court classified as “out of the ordinary” of paying cash' for the $2100 plane tickets with a roll of twenty dollar bills from a wad including almost twice that much cash. Sokolow, 490 U.S. at 4-5, 8, 109 S.Ct. at 1583-84, 1585. In addition, in Sokolow it was necessary for the officer “to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ” Id. at 7, 109 S.Ct. at 1585. In the instant case, there are no such articulable facts of wrongdoing. See United States v. Fernandez, 18 F.3d 874, 878-80 (10th Cir.1994) (Defendant’s unusual nervousness and passenger’s startled awakening and stiff demeanor did not provide reasonable suspicion to extend detention beyond time necessary to issue initial traffick citation once defendant had shown valid driver’s license and registration. Officer was acting on an unparticularized hunch rather than on reasonable and objective suspicion.).
As regards the first fact relied on by the State to support reasonable suspicion, the use of a deodorizer is not considered unusual or even uniquely suited to the use of transporting illegal drugs. State v. Zelinske, 108 N.M. 784, 787, 779 P.2d 971, 974 (Ct.App. 1989), overruled on other grounds by, State v. Bedolla, 111 N.M. 448, 455, 806 P.2d 588, 595 (Ct.App.), cert. denied, 111 N.M. 416, 806 P.2d 65 (1991); Snow v. State, 84 Md.App. 243, 578 A.2d 816, 824 (1990) (After driver had been issued warning ticket for speeding, driver’s apparent nervousness, his failure to make eye contact with state trooper, travel from Philadelphia to Washington, D.C. on major interstate, and three air fresheners hanging from rear-view mirror, did not provide reasonable suspicion to warrant driver’s detention for dog sniff of vehicle. “Air fresheners are ... completely legitimate object[s]; some are ... ornamental as well as functional____ The addition of a new freshener without removing the old one is not unusual. As with other cleaning products, when the consumer is uncertain regarding the useful life of a product, the tendency is to keep the old one for a while longer.”).
As regards the second fact the State relies on to support reasonable suspicion, the State has failed to demonstrate that Defendant’s level of nervousness was of an unusual degree or indicative of anything other than innocent behavior. Although Robinson testified that Defendant was nervous, there is no cited testimony to the effect that Defendant “exhibited any unusual behavior such as excessive nervousness.” See Estrada, 111 N.M. at 798, 810 P.2d at 817. Nervousness is a highly subjective observation. Snow, 578 A.2d at 824; United States v. Bloom, 975 F.2d 1447, 1458 (10th Cir.1992). Furthermore, individuals often become nervous when stopped by a law enforcement officer. Snow, 578 A.2d at 824; see State v. Schlosser, 774 P.2d 1132, 1137-38 (Utah 1989).
There is no indication that Defendant displayed any signs of nervousness during the initial questioning by Robinson. To the contrary, the testimony indicates that Defendant did not show signs of nervousness until after he had satisfactorily demonstrated to Robinson that his citizenship documentation was in order and that he was in this country legally. It was only after Robinson continued to investigate Defendant by asking questions not pertaining to Defendant’s citizenship such as where he had been and questions regarding the ownership and registration of the vehicle, see Galloway, 116 N.M. at 9-10, 859 P.2d at 477-78, that Defendant showed some signs of nervousness. It was also at this point that Robinson requested Defendant’s vehicle registration materials and referred Defendant to the secondary area while he checked on the registration materials which ultimately were determined to be in order. Given the facts that Defendant was traveling alone in a foreign country, was stopped by the border patrol near Las Cruces, his status was that of a permanent resident with an alien card, and the investigatory questions posed by Robinson went beyond mere inquiries into his citizenship status, I believe Defendant’s display of nervousness is consistent with entirely innocent behavior. See Fernandez, 18 F.3d at 879 (“[Njervousness is of limited significance in determining reasonable suspicion ‘____ It is common knowledge that most citizens, and especially aliens, whether innocent or guilty, when confronted by a law enforcement officer who asks them potentially incriminating questions are likely to exhibit some signs of nervousness.’ ”).
Accordingly, I do not believe we should slap together two facts which are examples of neutral conduct consistent with innocent behavior to come up with the determination that there was reasonable suspicion of wrongdoing. Had there been irregularities in Defendant’s citizenship documentation in addition to the multiple air fresheners and had Defendant exhibited unusual behavior such as excessive nervousness, see Estrada, 111 N.M. at 798, 810 P.2d at 817,I would be more inclined to join the majority in finding reasonable suspicion. See Affsprung, 115 N.M. at 549-50, 854 P.2d at 876-77 (Agent had reasonable suspicion to justify extending the investigation at a fixed border checkpoint where defendant had a “kicked back” demeanor; the agent smelled alcohol; it was around 9:00 p.m.; defendant had no visible luggage and was driving an expensive car which seemed inconsistent given his youth; and the agent smelled burnt marijuana.). However, that is not the case here. Accordingly, I respectfully dissent and would reverse the trial court’s denial of Defendant’s motion to suppress.