Nathan v. State

Dissenting Opinion by

BELL, Chief Judge,

in which ELDRIDGE, Judge, joins.

I agree with the conclusion reached by a divided Court of Special Appeals in its unreported opinion in Horace Shaw, Jr. v. State, 139 Md.App. 751 filed June 5, 2001, and most of the rationale offered in the very perceptive majority opinion by Judge Kenney. The opinion proceeded on the premise that, subsequent to the traffic stop, there was a second stop, as Ferris v. State, 355 Md. 356, 372, 735 A.2d 491, 499 (1999) recognized there could be and it applied Ferris, its progeny, Charity v. State, 132 Md.App. 598, 753 A.2d 556, cert. denied, 360 Md. 487, 759 A.2d 231 (2000), Snow v. State, 84 Md.App. 243, 578 A.2d 816 (1990) and Whitehead v. State, 116 Md.App. 497, 698 A.2d 1115, cert. denied, 348 Md. 207, 703 A.2d 148 (1997), faithfully and forthrightly.

Acknowledging that the traffic stop was valid, based on the speed of the defendants’ van, an equipment defect and the officers’ observations of the manner in which the van was driven after it was signaled to pull over, the court analyzed whether, and if so, when, a second stop, based on the shifting of the focus from the traffic violation to a criminal, and more *670specifically, a narcotics, violation, occurred. Notwithstanding that Sgt. Lewis, upon approaching the defendants’ van, noticed, as the trial court reported, a “lowered ceiling, conversion ceiling in the roof part of the van that appeared to be new fabric, blue, it wasn’t faded at all in this eleven-year-old van” and the ceiling “was extremely tight or erect, there was no sagging in the ceiling,” an observation likely to arouse Sgt. Lewis’s suspicion, given his recent experience with a conversion van he discovered to have a hidden hydraulic compartment in the ceiling directly above the driver and right front seat passenger, it concluded that when the defendants were ordered out of the van, it was done pursuant to the officer’s prerogative under Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331, 337 (1977) and Maryland v. Wilson, 519 U.S. 408, 411-12, 117 S.Ct. 882, 884-85, 137 L.Ed.2d 41, 46 (1997). Although he might have been operating with a dual motive, the court believed that Sgt. Lewis’s questions were proper, “even though they did not appear to have much to do with” whether Nathan had committed traffic violations, and that Sgt. Lewis was “ostensibly obtaining information related to the traffic stop” when he obtained Nathan’s particulars. During the course of that interview, due to Nathan’s obvious nervousness-according to Sgt. Lewis, his carotid pulse was “pounding in his neck, his chest was palpitating, his hands were trembling” his changing in mid-sen-' tence his answer as to the origin of the trip, the manner in which he answered a question with a question and his refusal to look Sgt. Lewis in the eye, Sgt. Lewis became more suspicious.

It was when the Sergeant left Nathan to question Shaw “for the apparent purpose of catching the men with inconsistent stories” that the focus of the stop shifted, the intermediate appellate court determined. It was during this questioning that Sgt. Lewis’s suspicions were further raised as a result of Shaw’s behavior and response; Shaw displayed similar nervousness to that displayed by Nathan: Sgt Lewis noticed that Shaw’s hands were trembling, there was a nervous twitching just above and behind his right eye and, like Nathan, his *671carotid pulse was racing in his neck. Noting that the questions put to Shaw was directed not to the traffic offences, but to the origination and, perhaps, the circumstances, the court determined that the focus of the stop had shifted to the narcotics investigation rather than the traffic stop. It, thus, proceeded to consider whether there was either a valid consent or a reasonable, articulable suspicion of criminal activity to support a further detention of the defendants.

Although the court concluded that the defendants consented to the search of the van, it, nevertheless, addressed whether Sgt. Lewis had reasonable suspicion. It listed the historical facts known to Sgt. Lewis:

“Two African Americans pulled over by two Caucasian, Maryland State troopers are nervous.
“The van contained air fresheners.
“The van, which turned out to be a 1988 model, had some recent work done on the inside such that the ceiling covering seemed new and pulled tight; Sgt. Lewis had found a hydraulic compartment containing a weapon in a conversion van approximately four weeks earlier.
“Bo£h the driver and the passenger had been cooperative and totally compliant with all of his instructions despite initial cause for alarm, including the fact that [Shaw] had been lying down in the back.
“Nathan, who did not own the van and was not related to [Shaw], gave a different story than [Shaw] as to where they were coming from and why they were there.1”

It then considered whether any of them or collectively, those factors provided the requisite level of certainty that criminal activity was afoot.

Discounting the air fresheners on the basis of Charity, 132 Md.App. at 639, 753 A.2d at 578 (“The air fresheners, although they may have created a hunch, did not create an articulable *672suspicion”) and Snow2 the nervousness of the defendants on the strength of Ferris3 and Snow, 84 Md.App. at 260, 578 A.2d at 824 (nervousness is a “highly subjective observation”) and the inconsistent stories with Whitehead, 116 Md.App. at 504, 698 A.2d at 1119 (“There is nothing about not having their stories together, about just whom they visited, or about the day that they left Baltimore, that somehow yields an inference of possession of narcotics. Or, put another way, there is nothing about narcotics laws violators that police can recognize from an inability to agree upon these details of their journey to New Jersey.”), the court held:

“These factors may certainly have given rise to a “hunch” on Sgt. Lewis’s part, but we do not believe they add up to articulable suspicion in light of Ferris and Charity. We note further that, at this point, Sgt. Lewis had not radioed in any information to his dispatch to determine the status of the van or its occupants, and he also saw or smelled nothing *673other than air freshener that would lead him to believe that the van contained contraband.”

Although “|’h]e never conducted a thorough search of the interior of the van, did not look under the seats, in the bags [Shaw] and Nathan had in the back of the van, or in the glove box or other containers,” and never checked for weapons, despite an earlier profession of concern arising from Shaw’s movements in the back of the van, the court observed that Sgt. Lewis entered the van five times in an effort to locate, open and search the hidden compartment he was convinced was there. Based on his earlier experience with a conversion van containing a hydraulic ceiling compartment, the court further pointed out, his focus was on the front part of the van, where the map lights are located. Quoting Sgt. Lewis, it described the first entry: having hit the ceiling twice and checked the two map lights for functionality and finding them to both be working, he tided to pry down that area, where the entrance to the compartment in the earlier van was located, without success; “[a]t that point in time I couldn’t budge it, it wouldn’t even pull down at all, it wouldn’t budge, it was like it was permanently affixed with steel plates or steel rods.”

The second entry was with a flashlight, “to further inspect the area.” When he still could not gain entry, Sgt. Lewis obtained a screwdriver, which he concealed from the defendants, for assistance. Even with that assistance, he failed to gain entry to any hidden compartment. The intermediate appellate court concluded, as to these search efforts:

“We believe that all of these actions were acceptable, although Sgt. Lewis walked on the line of what a reasonable person would find acceptable pursuant to a consent to search when he tried to pry the ceiling compartment open.”

(footnote omitted).

After reviewing the testimony of Sgt. Lewis at the suppression hearing, the Court of Special Appeals concluded that he was convinced that there was a hidden compartment once he knocked on the ceiling of the van. To the court, it was significant that, after the third entry and attempt to find and *674search the compartment, Sgt. Lewis stopped and “advised [Shaw] and Nathan that he was going to get them ‘right out of here’ and that he was going to radio in that everyone was ‘all right,’ ” and did, in fact, call the dispatcher, but, rather than wait for a response as to whether there were any outstanding warrants, he told the defendants that the van was reported stolen, which he knew to be false. It was also significant that, after handcuffing them, Sgt. Lewis acknowledged that the van had not been reported stolen, advised them for the first time of his belief that the van had a false hydraulically controlled compartment in the ceiling and demanded that they provide him with the location. When neither defendant cooperated, indeed indicated that they did not know about what he was talking, Sgt. Lewis “stated multiple times that he would tear into the ceiling of the van even though he did not want to do so.”

Observing that, when he began to pry open the compartment, he was “looking for narcotics more so than other contraband,” the Court of Special Appeals opined that, “[t]o the extent that [Shaw] had previously consented to a search of his van, ... that consent had expired by this point.” Moreover, it rejected the State’s argument that the consent continued because neither man instructed Sgt. Lewis to stop or in any way objected:

“Prior to radioing in to dispatch, Sgt. Lewis had indicated to appellant and Nathan that he would have them on their way shortly, which, no doubt, any reasonable person would interpret as a sign that the search was over. Moreover, to the extent that Sgt. Lewis was asking for consent to rip into the ceiling of the van, such consent was hardly voluntary in view of the fact that he was threatening to do so anyway and both men were in handcuffs.”

(Citing Doering v. State, 313 Md. 384, 401-02, 545 A.2d 1281, 1289 (1988)).

Turning to the question of whether, at that time, Sgt. Lewis had probable cause to believe that the van contained contraband, the court answered, “no.” Its reasoning is clear and *675logical. Reviewing the definition of probable cause, as explicated in Dixon v. State, 133 Md.App. 654, 678, 758 A.2d 1063, 1076 (2000), “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see State v. Lee, 330 Md. 320, 326, 624 A.2d 492 (1993), i.e., a nontechnical conception of a reasonable ground for belief of guilt and recognizing, as Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) teaches, that:

“The principal components of a determination of probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to ... probable cause,”

the court enumerated the historical facts in the case up to the point of the expiration of the consent, with an eye toward determining whether they amounted to probable cause. In addition to those historical facts already identified, they were determined to be:

* * ❖ $ ❖
“The two men were driving a van with out of state license plates down Route 13.
* * * * * ❖
“Sgt. Lewis found that the ceiling of the van was hard.

“There was a television mounted into a panel extending perpendicular to the ceiling, a Sony Playstation mounted in that same panel, and a VCR or other component mounted underneath the panel.

“Sgt. Lewis was unable to find any openings or wires suggesting the presence of a hydraulic compartment, nor was he able to pry open the panel containing the map lights, the site of a hydraulic container in [a] van detained previously.
“There were containers in the car, such as bags, but Sgt. Lewis did not look inside them.”

*676Then viewing the facts from the point of view of a reasonable police officer, as it was required to do, see Ornelas, 517 U.S. at 700, 116 S.Ct. at 1664, 134 L.Ed.2d at 921, the intermediate appellate court opined:

“[T]he majority of the factors listed above do not rise to the level of probable cause. For example, air fresheners, only two of which were in the front of the van, are not indicative of criminal behavior, nor is nervousness. Suspicions might be aroused by the two men’s differing stories as to how they got to New York, but this gives rise to generalized suspicion rather than objective proof of wrongdoing. This leaves us with some generalized suspicion along with a hard ceiling in the van. Sgt. Lewis certainly provided expert testimony regarding the uses of hydraulically controlled compartments in conversion vans, yet we must look at this from the point of view of an objectively reasonable police officer with training and experience in narcotics trafficking.”

The court discounted the cases from other jurisdictions involving searches of hidden compartments, noting “[i]n virtually all cases, thei"e was something more than was present in this case.” It concluded:

“An objectively reasonable police officer might have suspected that the van contained a hidden compartment, but, other than the fact that the ceiling was hard, there was nothing else, i.e., wires or an obvious opening, that would indicate the presence of a compartment. We do not believe that, in this case, the generalized suspicion tips the scale into the realm of probable cause. Both men were extremely cooperative and nothing was present to indicate the presence of contraband.”

On the basis of this opinion, therefore, I would affirm the judgment in Shaw and reverse the judgment in the companion case, Nathan, in which another panel of the intermediate appellate court reached the opposite result.

To the majority, sufficient grounds to justify an investigative detention have been established by the following facts, taken together:

*677“that Nathan, the driver, was unable to produce identification, in combination with Sgt. Lewis’s observations of Nathan and Shaw’s extreme nervousness,4 Shaw’s apparent pretense of sleep when the vehicle was initially stopped, Nathan’s evasive answers regarding his travel plans, the inconsistent versions of the trip itinerary and purpose provided by Nathan and Shaw, the “overwhelming” odor of air fresheners, and the altered ceiling that led the officer to believe that the van had a hidden compartment, as well as the police observations prior to the traffic stop (the passenger’s head bobbing up and down in the rear window),”

At 665 leading to the conclusion that “Sgt. Lewis had reasonable, articulable suspicion to believe that Nathan and Shaw were engaged in criminal activity, and that suspicion was sufficient to support their continued detention.” Id. at 665. The majority also' holds that Sgt. Lewis had probable cause to search the van, reasoning:

“Considering the totality of the circumstances, we conclude that Sgt. Lewis’s observations of the van’s ceiling, in combination with Nathan and Shaw’s suspicious behavior, were sufficient to constitute probable cause to search the van, including the ceiling. Before Shaw consented to any search, Sgt. Lewis had noticed that the height of the ceiling in the van was lower than normal and that the fabric was new and taut, not as one would normally expect in an eleven-year-old van. The ceiling of the van was solid, hard, with no flexibility, and the map lights would not move, indicating to *678the officer that there was a false hydraulic compartment containing contraband similar to one that he found in a conversion van four weeks earlier. Sgt. Lewis testified that the console felt like it was affixed with steel plates and that, in a normal van ceiling, the screws would be removable in the center section to allow for the replacement of bulbs and vents dealing with air conditioning and heating. These factors, taken together, clearly amounted to sufficient probable cause for his search of the van’s ceiling.”

Id. at 666.

In reaching the latter conclusion, the majority focuses heavily on Sgt. Lewis’s observations of the van’s ceiling, the conclusions he drew from those observations and his having discovered a false hydraulic compartment in a conversion van similar to Shaw’s four weeks earlier. It finds support for that focus in three cases involving hidden compartments, United States v. Anderson, 114 F.3d 1059, 1066 (10th Cir.1997); United States v. Inocencio, 40 F.3d 716, 723-24 (5th Cir.1994); United States v. Martel Martines, 988 F.2d 855, 858-59 (8th Cir.1993). The “suspicious behavior” to which the majority refers relates back, I surmise, to the “grounds” found sufficient to justify the defendants’ continued detention.

I am disturbed by the majority’s holding that the facts that the defendants were nervous and gave inconsistent versions of the trip’s itinerary and purpose and that air fresheners were present in the van are significant indicia of the existence of probable cause. As we have seen, the appellate courts of this state have previously considered each of these factors and determined that they are slender reeds on which to base reasonable suspicion, not to mention probable cause.

In Ferris, this Court, as the majority itself acknowledges, cautioned against “placing too much reliance upon a suspect’s nervousness when analyzing a determination of reasonable suspicion.” Id. at 389, 735 A.2d at 509. It cited a number of cases from other courts to that effect. United States v. Wood, 106 F.3d 942, 948 (10th Cir.1997); Gonzalez-Rivera v. Immigration & Naturalization Service, 22 F.3d 1441, 1447 (9th *679Cir.1994); Buffkins v. City of Omaha, 922 F.2d 465, 470 n. 13 (8th Cir.1990); United States v. Andrews, 600 F.2d 563, 566 (6th Cir.1979), cert. denied sub nom. Brooks v. United States, 444 U.S. 878, 100 S.Ct. 166, 62 L.Ed.2d 108 (1979); State v. Washington, 623 So.2d 392, 398-99 (Ala.Crim.App.1993); State v. Magner, 191 Ariz. 392, 956 P.2d 519, 524 (Ct.App.1998); State v. DeMarco, 263 Kan. 727, 952 P.2d 1276, 1283-84 (1998); State v. Mendoza, 748 P.2d 181, 184 (Utah 1987). We pointed out that characterizing an individual as nervous, even unusually so, “is an extremely subjective evaluation.” Ferris, 355 Md. at 389, 735 A.2d 491, citing United States v. Fernandez, 18 F.3d 874, 879 (10th Cir.1994). That is especially the case when the officer has had no prior interaction with the person whose behavior is being characterized; under those circumstances, we noted, the officer “could not reasonably gauge [the person’s] behavior during the traffic stop with his usual demeanor.” Id. citing, for that proposition, United States v. Beck, 140 F.3d 1129, 1139 (8th Cir.1998).

To be sure, we characterized the “nervousness” in Ferris as being “unexceptional,” and, therefore, “simply too ordinary to suggest criminal activity.” Ferris, 355 Md. at 389, 735 A.2d at 509 On the other hand, citing Whitehead, 116 Md.App. at 505, 698 A.2d at 1119, with approval, we acknowledged:

“Permitting a citizen’s nervousness to be the basis for a finding of probable cause would confer upon the police a degree of discretion not grounded in police expertise, and, moreover, would be totally insusceptible to judicial review.”

In the instant case, the majority finds solace in the fact that Nathan and Shaw’s nervousness was characterized by Sgt. Lewis as extreme. Unfortunately, it does not provide a basis for differentiating between “ordinary nervousness,” which still must be treated with caution and extreme nervousness, which does not and cannot be the basis for probable cause, except by reference to the police officer’s characterization. The majority, thus, seems to be ceding the determination of the level of nervousness of a driver to the police, whom it has already decided, because of lack of prior experience and expertise, as well as the unreviewability of any conclusion thereby made, *680are ill-equipped to do so. Moreover, this analysis undermines the very forceful statement in Ferris, providing the road map for getting around its proscription: simply characterize the nervousness as extreme. This is particularly distressing because that is precisely what the characterization will be in each succeeding case, every police officer will become quite aware, and quite adept at discerning palpitations, of the carotid pulse. In Ferris, we accepted the admonition of the court in United States v. Millan Diaz, 975 F.2d 720, (10th Cir.1992), against according too much weight to the State’s routine claim that garden variety nervousness accurately indicates complicity in criminal activity: “This repetitive assertion by the Government in all cases of this kind must be treated with caution.” United States v. Millan-Diaz, 975 F.2d at 722. 355 Md. at 389, 735 A.2d at 508-09. No less caution should be shown when the routine claim is of extreme nervousness.

The Court of Special Appeals, in Whitehead, addressed the effect on the probable cause calculus of two or more persons giving inconsistent stories with regard to the trip’s destination, purpose or origin during a traffic stop. It held that an inability to agree upon these details does not establish probable cause. 116 Md.App. at 504, 698 A.2d at 1119. The same conclusion was reached as to air fresheners in Charity; a hunch the presence of such fresheners may provide, but certainly not probable or even reasonable suspicion. In Charity, it also must be remembered, there were 72 air fresheners on the rear view mirror. In this case, there were but four, two in the front of the van and two in the rear. It is also interesting that the characterization of this effect, by the same officer, by the way, was the same — overwhelming.

Whether the driver of the van produced a driver’s license adds little, if anything to the inquiry. To be sure, Maryland Code (1977, 1998 Repl.Vol.) § 16-112(c) of the Transportation Article requires every driver to have his or her driver’s license ■with him or her and to display it on demand to any uniformed police officer. Failure to have a license in possession and, thus, to display'it, is a misdemeanor punishable only by a fine. See Md.Code (1977, 1998 Repl.Vol.) § 27-101(a) and (b) of the *681Transportation Article. This is to be contrasted with the requirement that every driver be licensed. See Md.Code (1977, 1998 Repl.Vol.) § 16-101 of the Transportation Article. No serious effort was made by Sgt. Lewis to determine which it was, driving without license in possession or driving without a license. Nor does the driver’s evasiveness appreciably advance the inquiry. In fact, it would seem to fall squarely within the ambit of the rule with respect to conflicting stories. Shaw’s pretense of sleep when Sgt. Lewis initially approached the van and the observations of the police prior to the traffic stop (the passenger’s head bobbing up and down in the rear window) may have had relevance early on, but it was dissipated by subsequent events — both defendants were very cooperative and it was not deemed necessary by Sgt. Lewis to even search the area of the van where Shaw first was seen.

This leaves for consideration only Sgt. Lewis’s observations of the van’s ceiling. At the outset, I am offended by the suggestion that customization of, or an alteration to, a 1988 conversion van, or any older model vehicle, for that matter, provides a basis for reasonable suspicion to justify a further detention or probable cause to support a search. As far as I know, there is no law against, and indeed no sound basis for discouraging, the owner of such a vehicle from customizing it, repairing it and/or improving it, as an option to purchasing a new one. But the rule that the majority formulates, because it potentially subjects to search all conversion vans so altered and perhaps all vehicles that have been customized and altered from factory specifications, would burden the decision to customize and alter and, thus, discourage its being done.

Nor does the inspection of the van’s ceiling justify the conclusion that there was reasonable suspicion for detention or probable cause to search. This is true notwithstanding that Sgt. Lewis had an experience several weeks before which resulted in his discovery in a conversion van of a hydraulically operated compartment. Neither this experience,5 nor Sgt. *682Lewis’s asserted extensive training and experience in drug interdiction6 suffices to establish, with the requisite degree of certainty, without empirical data to support it, that this conversion van, or any other, has a hidden compartment and, if so, that those compartments are frequently used to conceal contraband. Certainly, the likelihood that hidden compartments in conversion vans will frequently or almost always be used to conceal contraband is a matter of statistical fact, which is subject to proof. The anecdotal testimony of Sgt. Lewis simply does not suffice as such proof. Indeed, as Nathan reminds us:

“It cannot fairly be disputed that automobiles are endlessly accessorized and customized in perfectly innocent ways. To say that the fact that a vehicle has had some customized improvement satisfies the requirement that there is a ‘fair probability that contraband or evidence of a crime will be found in a particular place,’ would ... place all manner of innocent drivers at risk for unwarranted governmental intrusion. See Ferris v. State, 355 Md. at 386, 735 A.2d 491 *683(‘factual circumstances which “describe a very large category of innocent travelers” cannot in of themselves justify a seizure.’ (Quoting Raid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890, 894 (1980))”

The majority’s assertion that Anderson, Inocencio and Martel-Martines support the result in this case is not persuasive. Anderson is similar to the case, sub judice, insofar as three of the factors relied upon for probable cause, the smell of air fresheners, conflicting stories about the travel itinerary, the existence of a hidden compartment, are concerned. Two of them, the former two, do not suffice in Maryland to establish either reasonable suspicion or probable cause. As to the hidden compartment, there is a significant difference between coming upon such a compartment inadvertently and surmising that there must be one simply because work has been done on an older vehicle and because the officer recently has come across a vehicle with one. Moreover, there is a significant difference between a hidden compartment in a gas tank and one suspected of being in the ceiling of a van, based only on the fact that the older van was improved.

Inocencio involved a roving Border Patrol stop and, so, is subject to a different analysis, that is guided by the principles enunciated by the United States Supreme Court in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). 40 F.3d at 722. Those principles permit Border Patrol officers on roving patrol to detain vehicles temporarily for investigation when they are “aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that the vehicle is involved in illegal activities. Id. citing United States v. Cardona, 955 F.2d 976, 980 (5th Cir.), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 291 (1992) (quoting Brignoni Ponce, 422 U.S. at 884, 95 S.Ct. at 2581-82, 45 L.Ed.2d at 618) and noting that United States v. Cortez, 449 U.S. 411, 421-22, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) expanded the Brignoni-Ponce “reasonable suspicion” test for alien smuggling to encompass vehicle stops for any suspected criminal activity. *684Factors have been developed to assess whether a Border Patrol agent has acted with reasonable suspicion:

“(1) known characteristics of a particular area, (2) previous experience of the arresting agents with criminal activity, (3) proximity of the area to the border, (4) usual traffic patterns of that road, (5) information about recent illegal trafficking in aliens or narcotics in the area, (6) the behavior of the vehicle’s driver, (7) the appearance of the vehicle, and (8) the number, appearance and behavior of the passengers.”

Id., citing United States v. Casteneda, 951 F.2d 44, 47 (5th Cir.1992) (citing United States v. Melendez-Gonzalez, 727 F.2d 407, 411 (5th Cir.1984) (in turn citing Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. 2574)). Notwithstanding the absence of the proximity factor, the court in Reyes determined that Brignoni-Ponce applied, nonetheless, and that “[a] careful examination of the facts creates a reasonable suspicion of illegal activity,” including several of the Brignoni-Ponce factors, Inocencio, 40 F.3d at 723, as follows:

“The agents testified at trial that Reyes [the driver] appeared nervous and offered conflicting statements in explaining his presence on Helen Ranch Road. In addition, they testified that Reyes was unable to read certain graphs and charts that he claimed he was working on while in the area [and] that the bed of the vehicle was higher than normal, the discovery of fresh paint (on a brand new truck) around the fender wells and the fresh undercoating beneath the bedi of the truck.”

Id. at 723-24. The court concluded that the cumulation of these factors amounted to probable cause. Thus, given the context, there was a good deal more in that case than in this one.

The result in Mariel-Martines is governed by the consent to search that the defendant gave in that case. The analysis based on a lack of valid consent is pure dicta.

There was a time in America when a person with an older van or car could alter or improve that vehicle, whether to save money or to make it more comfortable or attractive or simply *685because he or she felt like doing so, by accessorizing and/or customizing it, and drive it on any interstate highway, even one patrolled by police whose major focus is drug interdiction, without fear of the improvement being the cause for suspicion of wrong-doing7 and, thus, the basis for him or her being subjected to the intrusiveness of a search of that vehicle. After today, I fear that time is no more. Any alteration to an older vehicle that a police officer, experienced in drug interdiction, says may contain a hidden compartment will suffice, so long as he or she also characterizes the occupants, or, I suspect, at least one of them, as extremely nervous and the van has air fresheners, the odor from which, the officer says, is overwhelming and, perhaps, there is not 100 percent identity in the reporting of the itinerary.

Moreover, the record does not demonstrate that Trooper Smith had any. Furthermore, the statement that an individual appeared unusually nervous is an extremely subjective evaluation. United States v. Fernandez, 18 F.3d 874, 879 (10th Cir.1994).

I emphatically dissent.

Judge ELDRIDGE joins in the views expressed herein.

. The most significant discrepancy, the court determined, was whether the defendants went to New York in the van or in a rental car.

. In Snow v. State, 84 Md.App. 243, 261, 578 A.2d 816, 824 (1990), the Court of Special Appeals observed, as to air fresheners:

“Air fresheners are, as far as we know, a completely legitimate object; some are, undoubtedly, thought to be ornamental as well as functional. Nor is the fact that Snow had three air fresheners, as opposed to one, suspicious. 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.

. We were emphatic in Ferris v. State, 355 Md. 356, 388, 735 A.2d 491, 508 (1999):

"The nervousness, or lack of it, of the driver pulled over by a Maryland State trooper is not sufficient to form the basis of police suspicion that the driver is engaged in the illegal transportation of drugs. There is no earthly way that a police officer can distinguish the nervousness of an ordinary citizen under such circumstances from the nervousness of a criminal who traffics in narcotics. An individual’s physiological reaction to a proposed intrusion into his or her privacy cannot establish probable cause or even grounds to suspect. Permitting citizen's nervousness to be the basis for a finding of probable cause would confer upon the police a degree of discretion not grounded in police expertise, and, moreover, would be totally insusceptible to judicial review.” (Quoting Whitehead v. State, 116 Md.App. 497, 698 A.2d 1115, cert. denied, 348 Md. 207, 703 A.2d 148 (1997)).

. In Ferris v. State, 355 Md. 356, 735 A.2d 491 (1999), we cautioned against “placing too much reliance upon a suspect’s nervousness when analyzing a determination of reasonable suspicion.” Id. at 389, 735 A.2d at 509. Nonetheless, we also characterized Ferris's nervousness as being "unexceptional.” Id. We concluded that “Ferris's unexceptional nervousness, in reaction to encountering Trooper smith, was simply too ordinary to suggest criminal activity.” Id. In the instant case, however, Nathan and Shaw’s nervousness was characterized by Sgt. Lewis as extreme. As indicated supra, the fact that conduct may be innocent does not immunize it from consideration in determining reasonable suspicion. Nonetheless, we reiterate that a claim that ordinary nervousness indicates complicity in criminal activity must be treated with caution. Id.

. Indubitably, the hidden compartment found in the conversion van several weeks earlier was not a prototype for the hidden compartment *682in this conversion van, as the location of its entrance was different than the location of the entrance to this one, a fact that Sgt. Lewis discovered after taking claw hammer to ceiling in the area where he located the other compartment and finding nothing.

. Sgt. Lewis’s testimony that other conversion vans had hidden compartments, in his experience, and were used to conceal contraband is not probative. Relevant in this regard is the proffer made at the suppression hearing to the effect that “there is nothing unusual about an older van being converted. It's much cheaper to spend five or six thousand dollars in putting in all this equipment than spending forty or fifty thousand for a new van. And it's done all the time. And one person even said that by safety regulations they have to reinforce the ceiling above the driver when they put in TV's, et cetera, into such vans. And that it would be nothing unusual about this particular van.” Also, As Nathan points out, Sgt. Lewis testified that in fifteen years, he had personally search nine to twelve compartments of the type in this conversion van and in only one of them was any quantity of contraband discovered. In any event, that Sgt. Lewis has seen other hidden compartments in which contraband was concealed is far from dispositive of probable cause. The police regularly find contraband in various parts of vehicles and, yet, those prior discoveries do not provide probable cause to search the next car or another vehicle in the location where the contraband was found.

. Lest it be forgotten, Sgt. Lewis focused on the newness of the ceiling and its incongruity with the age of the van from the very moment that he approached the van. As reported by the majority opinion:

"The officer testified that, when Nathan lowered the passenger side window, the odor of air freshener coming from the interior of the vehicle was overwhelming. He testified that he observed a conversion ceiling in the roof of the vail that appeared to be lower than normal. The blue fabric around the ceiling of the eleven-year-old van appeared to be new and extremely tight, wilh no evidence of fading or sagging.

[At 653].