State v. Adan

McEVERS, Justice,

concurring specially.

[¶30] I agree with, and have signed with, the majority. I agree with the district court that each little item noted by law enforcement in its own right would not be sufficient to form reasonable suspicion, but the amalgamation of the items does.

[¶ 31] I write separately to note the dissent attempts to create a new rule of law, stating, without authority, that for the seizure to be constitutionally acceptable, it could only be based on events that happened in Burleigh County. The dissent takes umbrage with the majority and the district court relying on events in Stark County to “bolster the conclusion that reasonable and articulable suspicion exists because the driver was ‘nervous.’ ” Dissent, at ¶ 42. The dissent carefully cherry picks the evidence to determine which of the facts standing alone “add little or nothing to the calculus of whether reasonable suspicion exists.” Id. at ¶43. I believe the dissent incorrectly applies the law, because what happened in Stark County, regardless of whether it is lawful activity or mundane activity, is part of the totality of the circumstances the detaining officer relied on to determine whether there was reasonable suspicion to extend the lawful traffic stop. Law enforcement is allowed to consider the tips received from other police officers or other informants, along *848with their own observations, when determining : reasonable suspicion. State v. Kenner, 1997 ND 1, ¶¶ 11-13, 559 N.W.2d 538.

[¶ 32] Looking at the entire event is required when looking at the totality of the circumstances, as is the consideration that law enforcement officers may take into account inferences that may elude a lay person. State v. Fields, 2003 ND 81, ¶ 13, 662 N.W.2d 242. What the dissent fails to see is that sometimes the whole is more than the sum of its parts. Consider as an analogy this itemized list: aluminum foil, coffee filters, a coffee bean grinder, a coffee pot, mason jars, plastic soda bottles, plastic straws, duct tape, liquid Drano, lithium batteries, lantern fuel, iodine, pseu-doephedrine tablets, ephedrine tablets, and acetone: Each of these items individually are legal to possess and most of them are common items in our homes. But adding them together creates a meth lab. How many of these legal mundane items must law enforcement see, which standing alone would mean nothing, before there is reasonable and articulable suspicion?

[¶ 33] Here, there is no question the traffic stop is lawful. In regard to the additional detention, the district court made the following findings of fact to support reasonable and articulable suspicion: traveling below the speed limit; car had out-of-state license plates and was later determined , to be a rental car; driver was stiff with hands at the 10-2 position; after braking for a car entering the interstate, the driver stayed in the left lane for an extended period; driver did not look at the officer as he passed; driver talking out of the side of his mouth to a passenger who was reclined and appeared to be sleeping; driver appeared to put something in the back seat as if to cover something up; driver did not turn off the blinker when stopped; air freshener, a bottle of Ozone scent spray, a Bic lighter, and a bottle of eye drops were on the floor of the car; GPS in the car; driver" was shaking; Adan went to both the front seat and the back seat when he returned to the car to get the rental agreement; no visible luggage; Tes-faye had no identification; Tesfaye did not know the name of another passenger who had been riding with them; Tesfaye was on- probation for possession of methamphetamine; and Tesfaye stated they dropped off the passenger in the Williston area instead of Watford City as stated by Adan. Also found by the district court, the officers testified that based on their training and experience a number of the items found in the car were suspicious to mask the odor of drugs, and drug traffickers use GPS and tend to use rental cars to avoid potential seizure of their personal vehicle.

[¶ 34] In addition to those facts found specifically by the district court, the majority opinion points out several additional factors as testified by law enforcement: Evasive behavior by Tesfaye; not looking the officer in the eye; and Adan was quivering, shaking, constantly licking his lips, and touching his face. In the officer’s training and experience, this showed nervous behavior.

[¶ 35] While I agree that many of the findings standing alone may mean very little, when the totality of the circumstances is considered, there was reasonable suspicion to detain the defendants.

[¶ 36] Most concerning to me is the dissent’s assertion that the defendants were detained based on their race. Adan and Tesfaye did not raise race as an, issue in their motions to suppress. This assertion is not supported by the evidence presented to the district court. The officer was specifically asked in cross-examination whether the fact that the driver was African American was part of his suspicion, and the answer was “No.” It is for the *849district court to weigh the evidence and make credibility determinations. State v. Rufus, 2015 ND 212, ¶ 7, 868 N.W.2d 534. The district court made no finding that the officer’s testimony was not credible. The dissent raises an issue not presented to the district court, and, without hearing the officer testify goes further by weighing the credibility of the officer’s testimony. The dissent, in saying the appellants were the subjects by “driving while black” accuses, law enforcement of racial profiling, and implies the district court is not bright enough to see it. Seems like a mere hunch. Such an ungrounded assertion is uncalled for and undermines the public’s trust, not only in law enforcement, but in the judicial system.

[¶ 37] Lisa Fair McEvers