United States v. Urrieta

McKEAGUE, Circuit Judge,

dissenting.

Because I disagree with the majority’s conclusion that the brief detention at issue here violated Urrieta’s Fourth Amendment rights, I respectfully dissent.

A. Reasonable Suspicion To Detain

The analytical framework for assessing an investigative detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is a two-part analysis of the reasonableness of the stop. See United States v. Caruthers, 458 F.3d 459, 464 (6th Cir.2006). The first question is “whether there was a proper basis for the stop, which is judged by examining whether the law enforcement officials were aware of specific and articulable facts which gave rise to reasonable suspicion.” Id. If the detention is proper, the second question is “whether the degree of intrusion ... was reasonably related in scope to the situation at hand, which is judged by examining the reasonableness of the officials’ conduct given their suspicions and the surrounding circumstances.” Id. This court has explained that:

Although the standard of review on the ultimate reasonable suspicion inquiry is de novo, the district court is at an institutional advantage, having observed the testimony of the witnesses and understanding local conditions, in making this determination. Accordingly, “due weight” should be given to the inferences drawn from the facts by “resident judges.”

United States v. Townsend, 305 F.3d 537, 542 (6th Cir.2002) (quoting Ornelas v. United States, 517 U.S. 690, 698, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)).

1. Specific and articulable facts for reasonable suspicion

Despite the majority’s suggestion to the contrary, the facts in the present case that *580support reasonable suspicion existed here included the following facts that were known to Deputy Young when he finished the call at 2:04 p.m. with EPIC: (1) the vehicles (both the Navigator and the Honda it pulled) were “fully” packed with belongings; (2) the defendant did not seem to care about the way the Honda was being towed (e.g., he utilized a homemade towbar); (3) the Navigator had a six-month old registration; (4) there was a disparity in value between the Navigator and the Honda, and the Navigator was a relatively expensive vehicle; (5) the defendant was unable to find his passport and he looked for the passport in the car he was towing instead of the car he was driving; (6) the passengers were nervous; (7) defendant was traveling from a drug source state to a drug distribution state (i.e., California to Atlanta); (8) the intended duration of the trip was relatively quick; and (9) the results of the EPIC check suggested defendant was lying about having a passport, being in the country legally, and the validity of his Mexican driver’s license.

Considering these facts under the “totality of circumstances” test, Deputy Young had reasonable suspicion for the brief detention. See United States v. Ellis, 497 F.3d 606, 613-14 (6th Cir.2007) (holding reasonable suspicion existed based on a combination of six factors). Which is to say, while any one of these facts may not amount to reasonable suspicion on its own, taken together they do. More importantly, “M totality of the circumstances analysis prohibits us from discounting certain factors merely because, separately, they could potentially have ‘an innocent explanation.’ ” Id. at 614 (quoting United States v. Arvizu, 534 U.S. 266, 267, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). Moreover, irrespective of whether Deputy Young’s “mistaken understanding of the law was the true reason” that he detained Urrieta, reasonable suspicion existed to detain him in any event. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“foreclos[ing] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved”).

Urrieta largely ignores Deputy Young’s reliance on Urrieta’s dishonesty as support for reasonable suspicion. Yet, the results of the EPIC check suggested that Urrieta was specifically lying about having a passport, being in the country legally, and the validity of his Mexican driver’s license. An officer’s awareness that the defendant is lying or being dishonest should raise an officer’s suspicion. See United States v. Atchley, 474 F.3d 840, 848-49 (6th Cir.2007) (finding lying and nervous demeanor combined with an informant’s tip were enough to justify reasonable suspicion). To suggest otherwise, is to ask a police officer to turn a blind eye to what he or she learns during the traffic stop. Cf. United States v. Erwin, 155 F.3d 818, 823 (6th Cir.1998) (“To have simply sent Erwin on his way, without brief further questioning at the very least, would have been plainly unreasonable, even inept, police work.”).

While I acknowledge Deputy Young had no authority to arrest Urrieta and Montes for an immigration violation because neither of them had reentered the country illegally, the EPIC call nonetheless indicated that Urrieta lied to Deputy Young. Therefore, I believe Deputy Young was entitled to explore those untruths by asking Urrieta some additional questions.

Almost immediately upon questioning, Urrieta gave answers that appropriately increased Deputy Young’s suspicions. First, Urrieta became evasive about when he came into the country, changing the *581subject upon Deputy Young’s question. Second, he began to change his story about his travel plans and eventually explained instead of Atlanta that he was going to West Palm Beach, Florida. Third, despite telling Deputy Young that he had dated his girlfriend for two to three years and was traveling a great distance with her, he was unable to confirm whether she had a passport or if she was in the country legally. This inconsistency led Deputy Young to suspect that they might not have known each other and were placed together for the sole purpose of transporting drugs. Fourth, upon being asked about his arrest record, Urrieta admitted to being arrested for not having his identification and yet, he was unable to find his passport during this stop. Fifth, Urrieta explained that he did not have steady work and that his girlfriend worked at Wendy’s which increased Deputy Young’s suspicions that it would be difficult for such a couple to afford a Navigator (even if used) and finance such a long distance trip. Sixth, Urrieta continued to change his story as to whether he had a visa or a passport. Last, Urrieta appeared to stall when Deputy Young asked whether there were ever drugs in the vehicles, eventually answering “I don’t think so.” J.A. 198.

Some latitude to explore Urrieta’s lies to Deputy Young is particularly appropriate here because there existed other indicia (albeit not overwhelming) of drug activity. Indeed, that the defendant had a Mexican driver’s license and that the Navigator’s registration was expired were part of the totality of circumstances that established reasonable suspicion here. Both indicated that the defendant’s “story” about the cars and his status in the country were untrue. It was the implausibility of the defendant’s story about the registration and the defendant’s lies about his status in the country that, in part, led Deputy Young to believe that criminal activity might be afoot. In particular, Deputy Young had specialized knowledge that drug dealers often hire illegal aliens' to engage in illegal activities (e.g., transporting drugs) and provide them a car as a bargaining chip.

Deputy Young’s observations that the vehicles were “fully packed” and that the defendant was towing another vehicle also contributed to Deputy Young’s reasonable suspicion, even if, as defendant argues, these facts were consistent with a family moving. The Supreme Court squarely rejected an analogous argument from a respondent that “the facts suggested a family in a minivan on a holiday outing.” Arvizu, 534 U.S. at 277, 122 S.Ct. 744. The Supreme Court found that “[a] determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct.” Id. It further explained that while “each of these factors alone is susceptible of innocent explanation” taken together they suffice. Id. Moreover, given Deputy Young’s specialized knowledge about drug couriers it was equally plausible, if not more likely, that the “move” was a cover story such that the packing of the cars was a part of the story or a way to shield illegal items. See Ellis, 497 F.3d at 613 (“The totality of the circumstances analysis permits police officers to draw on 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.” (citation and quotation marks omitted)).

While it is true that Deputy Young’s observations that Urrieta was traveling from a drug source state to a distribution state and that the passengers were nervous are not facts that carry a lot of weight, they do nonetheless bolster reasonable suspicion in combination with the *582other factors. See United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (“A court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a ‘profile’ does not somehow detract from their evidentiary significance as seen by a trained agent.”). It is worth noting that Deputy Young specifically mentioned that the relatively quick duration of the trip also raised his level of suspicion.

Deputy Young’s observation regarding the disparity in value between the Navigator and the Honda are more indicative of criminal wrongdoing. Moreover, this fact should be given additional weight in light of his specialized knowledge that vehicles are used as bargaining chips for drug-courier jobs.

Urrieta’s emphasis on one isolated aspect of Deputy Young’s testimony regarding his general description of how he knew that Urrieta was engaged in illegal activities is a classic red herring. See J.A. 89 (Deputy Young explained he knew that Urrieta was involved in something illegal in the same way “when I walk in the house and I look at my little boy, I know whether he has done something wrong”). The context of Deputy Young’s statement makes clear that defendant’s reliance on this statement as a means to refute that reasonable suspicion existed is meritless. Deputy Young made the isolated statement at the end of an answer to a question posed on cross-examination. Earlier in that same answer Deputy Young provided specific facts that supported his suspicion, he also previously had explained those facts in his direct testimony, and later he reiterated those facts on re-direct. Indeed, the isolated statement was Deputy Young’s attempt to draw an analogy for defense counsel, not the reason for his suspicion. Yet, I acknowledge that had that observation been the sum total of the basis for Deputy Young’s suspicions then Urrieta’s point would be well taken. On the present record, however, it is clear that specific and articulable facts supported Deputy Young’s reasonable suspicion, as discussed supra. Accordingly, his isolated and general statement is of no consequence to the determination that reasonable suspicion existed here. Cf. United States v. Wagner, 193 Fed.Appx. 463, 466 (6th Cir.2006) (“The test for reasonable suspicion is not whether the detaining officer subjectively believes that the circumstances create a reasonable suspicion, but whether there is ‘a particularized and objective basis for suspecting legal wrongdoing.’” (citing Arvizu, 534 U.S. at 273, 122 S.Ct. 744)).

2. Reasonably related in scope

Because I would find that reasonable suspicion existed, I briefly will address the second part of the analysis, namely, “whether the stop was ‘reasonably related in scope to the circumstances which justified the interference in the first place.’” United States v. Perez, 440 F.3d 363, 372 (6th Cir.2006) (citing Terry, 392 U.S. at 20, 88 S.Ct. 1868). This court has explained that:

[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). The investigative means used should also be the least intrusive means reasonably available to verify or dispel the officer’s suspicions in a short period of time. Id. The Supreme Court has rejected a rigid time limitation on the lawfulness of a Terry stop, and “emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably *583needed to effectuate those purposes.” United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 84 L.Ed.2d 605, (1985). To assess whether a detention was too long to be justified as an investigative stop, courts should “examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” Id. at 686, 105 S.Ct. 1568.

Id. (alteration in original).

Here, the short amount of time the officer detained Urrieta was justified. In total, from the time the officer finished his call with EPIC at 2:04 p.m. until the defendant gave his consent to search the vehicles verbally at 2:13 p.m., only 9 minutes later, or at most, in writing at 2:15 p.m. when only 11 minutes had passed. Moreover, both parties agree that the relevant time in question is actually somewhat less, from 2:07 p.m. when Deputy Young should have been able to return to Urrieta after the EPIC call and issue the citation until 2:13 p.m., amounting to only 6 minutes of detention when Urrieta gave his verbal consent, or at most, 2:15 p.m., a mere 8 minutes of detention when he gave his written consent.

What is more, approximately 3 minutes after the call finished with EPIC, and almost immediately upon Deputy Young’s re-questioning of Urrieta, his answers bolstered Deputy Young’s grounds for reasonable suspicion and provided support for the additional brief detention. Therefore, the defendant was detained for only 3 minutes when the officer had additional information that supported reasonable suspicion. Furthermore, the officer appeared otherwise diligent in pursuing his investigation. Indeed, the defendant does not raise any suggestion to the contrary in that respect.

While it might seem odd that Deputy Young had a drug dog in his patrol car that he did not use during the stop, Urrie-ta failed to raise this issue to the district court and similarly fails to raise it on appeal to this court. Moreover, at the suppression hearing, defense counsel asked Deputy Young about having the drug dog in the patrol ear, see J.A. 87-88, but did not inquire about why Deputy Young did not use the dog during the stop. On such an undeveloped record, it is not this court’s role to speculate about why Deputy Young did not use the dog and therefore I disagree with the majority’s conclusion that it “strongly suggests that he did not have a reasonable suspicion that Urrieta was transporting drugs.”

Accordingly, both because the time frame was relatively short and the officer was proceeding diligently, I would find that the detention of the defendant did not impermissibly expand the scope of the Terry stop.

B. Voluntary Consent

Because I would find reasonable suspicion existed to detain Urrieta, I briefly will address the district court’s finding that Urrieta’s consent to search the vehicle was voluntary.

The determination of “whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion ... is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Accordingly, “the district court’s decision regarding consent will not be overturned unless it is clearly erroneous.” United States v. Bueno, 21 F.3d 120, 126 (6th Cir.1994) (citation omitted).

To determine if consent was voluntary, a district court must look at the totality of *584the circumstances and examine the following factors: “the age, intelligence, and education of the individual; whether the individual understands the right to refuse to consent; whether the individual understands his or her constitutional rights; the length and nature of detention; and the use of coercive or punishing conduct by the police.” United States v. Worley, 193 F.3d 380, 386 (6th Cir.1999) (citation omitted).

Urrieta argues that, in permitting the search, he was acquiescing to Deputy Young’s authority rather than giving voluntary consent. To the contrary, the district court found that Urrieta’s consent was voluntary. I agree.

Indeed, there is no basis to conclude that the district court erred in determining that Urrieta was of the proper age, education, and intelligence to understand his rights. Nor is there any evidence that Urrieta failed to understand Deputy Young’s questions or the nature of his request to search the two vehicles. When Deputy Young asked Urrieta if he could search his car, Urrieta responded “sure.” J.A. 199. Deputy Young then explained to Urrieta that he was seeking Urrieta’s permission to look for illegal items. He also provided Urrieta with a written consent form translated into Spanish. Deputy Young proceeded to leave Urrieta alone to read and sign the form. Although Urrieta originally gave consent for Deputy Young to search only the Honda, Urrieta did not object in any way when Deputy Young told him that he also wanted to search the Navigator.

There is also no evidence that Deputy Young ever threatened Urrieta or attempted to coerce him into giving his consent to the search. To the contrary, a review of the traffic stop video reveals that Deputy Young was polite and courteous to Urrieta and his passengers during the entire stop. Accordingly, I would find that the district court’s conclusion that Urrieta’s consent was voluntary was not clearly erroneous.

For all of the aforementioned reasons and those discussed in the well-reasoned district court opinion, see United States v. Urrieta, No. 3:06-00154, 2007 WL 208526, *1 (M.D.Tenn. Jan. 24, 2007), given the totality of the circumstances, I would find that reasonable suspicion existed to detain the defendant for the brief period after the results of the EPIC call and before the voluntary consent to search the vehicles and therefore the defendant’s Fourth Amendment rights were not violated. See, e.g., Ellis, 497 F.3d at 614 (“While a prolonged detention may not have been justified, we conclude that, under these circumstances, the additional detention of eight minutes and twenty-one seconds for further investigation of Trooper Topp’s reasonable suspicions was lawful and not a violation of defendant’s Fourth Amendment right to be protected ‘against unreasonable searches and seizures.’ ” (quoting U.S. Const, amend. IV (emphasis added))); United States v. Walton, No. 06-5297, 2007 WL 4395577, *6 (6th Cir.2007) (finding “that reasonable suspicion existed to detain defendant during the brief time period after defendant’s license and registration ‘had come up clear’ ” and therefore the defendant’s Fourth Amendment rights were not violated). Accordingly, I respectfully dissent.