State v. $127,930 United States Currency

Crothers, Justice,

dissenting.

[¶ 26] I respectfully dissent.

[¶ 27] This is another in a growing line of traffic stops that were prolonged based on claims of officer “training and experience” being argued to justify further detention and investigation. See, e.g., State v. Walker, 2015 ND 281, ¶ 10, 871 N.W.2d 451; State v. Deviley, 2011 ND 182, ¶ 9, 803 N.W.2d 561; State v. Asbach, 2015 ND 280, ¶ 12, 871 N.W.2d 820; State v. Zacher, 2015 ND 208, ¶ 2, 868 N.W.2d 847; and State v. Adan, 2016 ND 215, ¶¶ 21-23, 886 N.W.2d 841.

[¶ 28] In 2011 Justice Kapsner warned:

“[T]he phrase ‘officer’s training and experience’ should not be used to mask what was operating in this case—the officer simply had a strong hunch that these individuals, driving a vehicle with án out-of-state license, were engaged in criminal activity. We have to be mindful not to let ‘officer’s training and experience’ become a substitute for a showing of a true'reasonable and articulable suspicion that a person is engaged in criminal activity.”

State v. Deviley, 2011 ND 182, ¶ 27, 803 N.W.2d 561 (Kapsner, J., dissenting).

[¶ 29] In State v. Adan I wrote:

“Regarding reasonable articulable suspicion to extend the traffic stop, I agree with the dissent that out of state license plates, a rental car, a GPS device, no visible luggage, an air freshener, one energy drink container and eye drops provide little to no evidence of criminal activity. Kapsner dissent, ¶ 58. Standing alone, grounding suspicion of criminality on possession of these common things simply exposes too many people to prolonged detention to be reasonable under the Fourth Amendment. I also have come to agree with Justice Kapsner’s warning in Deviley that we must be cautious of reasonable articula-ble suspicion built on ‘officer training and experience.’ Deviley, 2011 ND 182, ¶ 27, 808 N.W.2d 561 (J. Kapsner, dissenting).”

State v. Adan, 2016 ND 215, ¶ 39, 886 N.W.2d 841 (Crothers, J., concurring specially).

[¶ 30] Here, the traffic stop was prolonged based on the officer’s hunch that criminal activity was afoot. The State and the officer claimed the officer’s “training and experience” permitted him to deduce special meaning from the presence of cash in the center console, a photocopy of the vehicle .title and. that the driver and passenger had unusual travel plans, appeared nervous, avoided eye contact, stuttered and displayed tremors in their hands. Majority opinion, ¶¶ 3,13.

[¶ 31] Certainly, these facts have nothing to do with the reason for the stop—overly tinted windows. Nor do I believe these facts are sufficiently tied to interstate drug trafficking so that an officer can rationally link theirexisten.ee to. a. “reasonable articu-lable suspicion” that a crime is occurring or about to be committed. Rather, drivers stopped for a traffic offense normally are nervous. See State v. Fields, 2003 ND 81, ¶ 19, 662 N.W.2d 242 (“ ‘Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.’ However, nervousness alone is not enough to establish a reasonable and articulable suspicion because ‘[i]t certainly cannot be deemed unusual for a motorist to exhibit signs of nervousness -when confronted by a law enforcement officer.’”) (citations omitted); State v. Adan, 2016 ND 215, ¶ 52, 886 N.W.2d 841 (Kapsner, J., dissenting) (“The officer and the majority rely on ‘nervousness’ but being nervous is not criminal and unless this Court is going to reverse Fields, 2003 ND 81, ¶ 19, 662 N.W.2d 242, it is not sufficient,”).

[¶32] The temporary registration of a recently purchased automobile is perfectly legal. N.D.C.C. § 39-04-17. While traveling with cash might be novel in this day of credit and debit cards, the existence of a novel fact does not constitute reasonable articulable suspicion justifying being detained for thirty minutes pending arrival of a drug-sniffing dQg.. Unusual travel plans are the essence of nearly all college students’ mostly ill-conceived road trips and mean little or nothing when examining the laminated layers of suspicion. Having only a few personal items in the back seat of a car, with no information about what is in the trunk, also carries little or no legal significance. Here, the officer claims his training and experience permits him to draw conclusions that would evade a layperson, thus permitting him to glue together these facts that otherwise have little to no objective legal significance. See State v. Deviley, 2011 ND 182, ¶ 13, 803 N.W.2d 561 (officers may rely on their training and experience to draw inferences and deductions that may elude a layperson).

[¶ 33] I am not alone expressing concern over the unwise reliance on officer “training, and experience.”.In Massachusetts, the Superior Court wrote:

- “Instead of relying solely on the , facts in evidence to justify the stop, the Commonwealth seeks to use the ‘training and experience’ of the police officers, their conclusions, and their perception of Brockton as a ‘source city’ for narcotics to reinforce its conclusion that Callahan and McNair possessed drugs. The court finds that this is not sufficient to satisfy the' Commonwealth’s burden. Certainly, ‘a police officer may rely on his training and experience to draw inferences and make deductions that might well elude an untrained person.’ Commonwealth v. Garcia, 34 Mass.App.Ct. 645, 650 [614 N.E.2d 1031] (1993). However, in this case the observations were so innocuous as to be insufficient. This case is analogous to Garcia. Id, In Garcia, after making a lawful stop of an automobile, the officer saw an empty transparent glassine baggie in the vehicle. Id. at 647 [614 N.E.2d 1031]. Based) on his training and experience, he believed the baggie was of a type used for unlawful purposes, namely, for drug distribution. Id. He then ordered the occupants to exit the vehicle, conducted a pat frisk, and searched the vehicle for drugs, which he found. Id. at 647-48 [614 N.E.2d 1031]. One of the passengers admitted the drugs were his. Id. at 648 [614 N.E.2d 1031]. The AppéalS Court held that the officer lacked probable cause to search the'vehicle, because the only factual observation he made prior to the search was of an empty glassine baggie. Id. at 650 [614 N.E.2d 1031]: Observation! ] of such benign objects, capable for lawful as well as unlawful uses, was insufficient to establish probable cause to search the vehicle, even when coupled with the officer’s training and experience in narcotics investigations. Id. at 651-52 [614 N.E.2d 1031]. Similarly, in this case the observations made by Foley and Mc-Donough were of entirely innocuous activity. Like the benign object observed in Garcia, there is nothing inherently suspicious about going to an ATM, driving to Brockton, making telephone calls, and meeting someone on a bicycle. Adding the officers’ training and experience -can only elevate the level of suspicion into a hunch. A hunch is far too little on which to justify a stop of a motor vehicle. [Commonwealth v.] Phillips, 413 Mass. [50, 55 (1992)]. The detectives have failed to satisfy the court that their training and experience allowed them to deduce..that they ha~d observed a drug transaction in what, to the untrained eye, was entirely innocent activity. See also Commonwealth v. Alvarado, 420 Mass. 542, 547, 549, [651 N.E.2d 824] (1995) (viewing an -object which may be used for lawful as well as unlawful purposes not sufficient'to provide probable causé to arrest individual possessing object; officer’s training and experience not sufficient to overcome this deficiency). The Commonwealth has cited no cases to the contrary.”

Commonwealth v. Callahan, 11 Mass. L.Rptr. 664 (Mass. Super. Ct. Dec. 14, 1999) (emphasis added) (footnotes omitted).

[¶ 34] -I also find instructive the thoughtful dissent from Judge Greene of the Kansas Court of Appeals:

“I .respectfully depart the majority to note that this case may be a high watermark in affirming a finding of reasonable suspicion based solely on the hunch of an officer ‘with training and experience in enforcing drug crimes’ who is working in ‘a high crime area.’ I respectfully suggest that, whereas we formerly refused to endorse reasonable suspicion based on a mere hunch, the majority does so in this case because the hunch was that of a ‘trained and experienced’ officer. In other words, a hunch may not support reasonable suspicion, but the hunch of an officer of undefined but adequate training and experience can indeed support reasonable suspicion. My fear is that the majority moves us ever closer to a purely subjective test for reasonable suspicion, abandoning the need to rely on objective factors.
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“Once we endorse a subjective standard, based on a rather undefined claim of ‘training and experience,’ we vest more power in the officer than we do in a magistrate reviewing an affidavit for probable cause. If the officer has sufficient ‘training and experience’ (whatever that may be), his hunch trumps any objective factor, and the protection of the Fourth Amendment is eviscerated. Just as the majority has endorsed in this case, where the officer is sufficiently ‘trained,’ he or she may stop a citizen involved in what appears to be purely innocent conduct so long as the officer subjectively believes that a crime has been, is being, or will be committed.
“I concede that the majority’s emphasis on the ‘training and experience’ of the officer is not of its own making; even the Court in Terry indicated that reasonable action is to be determined by the ‘specific reasonable inferences’ the officer is entitled to draw ‘in light of his experience.’ Terry [v. Ohio], 392 U.S. [1,] 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 [ (1968) ], 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Our Supreme Court has recently emphasized the ‘officer’s capa-’ bilities’ in endorsing reasonable suspicion. See State v. Moore, 283 Kan. 344, 154 P.3d 1 (2007). Nevertheless, I argue that neither the United States Supreme Court in Terry nor our Supreme Court in Moore ever intended that the officer’s ‘training and experience’ should itself be a factor in the determination, and it certainly should not be the determinative factor in an otherwise close case. In fact, it is clear from the Terry Court’s analysis that the court is to make its determination of reasonableness based upon what a ‘reasonably prudent man would have been warranted in believing’ from the specific and articulable facts. Terry, 392 U.S. at 28, 88 S.Ct. 1868. And our Supreme Court has oft embraced this standard, stating ‘“we judge the officer’s conduct in light of common sense and ordinary human experience.” ’ Moore, 283 Kan. at 354, 154 P.3d 1. I contend we should be vigilant in maintaining this objective criteria and assure that our deference to an officer’s training not eclipse the centrality of an objective standard.
“Let me make clear the slippery slope upon which the majority would launch our reasonable suspicion analyses: so long as the officer effecting the stop is sufficiently trained and experienced, his affirmative statement that he alone perceived that a crime had been, was being, or would be committed is sufficient to support reasonable suspicion for purposes of the Fourth Amendment of the United States Constitution, even if the objective facts would appear to reflect totally innocent conduct to a reasonable prudent person. I truly fear that this development will serve to license unbridled deprivation of the comprehensive right of personal liberty intended to be protected by the Fourth Amendment.”

State v. Cook, 38 Kan.App.2d 20, 161 P.3d 779, 783-86 (2007) (Greene, J., dissenting).

[¶ 35] I join Judge Greene’s concerns that the wholesale use of unspecified “training and experience” permits the creation of a connection between otherwise innocuous events and reasonable articula-ble suspicion when that suspicion is based solely on an officer’s subjective opinions. This is not the objective standard for determining reasonable articulable suspicion that has been used for decades. This is not the level of proof courts should use to permit the warrantless seizures and detention of persons and property because officers think criminal activity is afoot. This is not the protection of personal liberty for which the Fourth Amendment was designed.

[¶ 36] I would reverse the district court’s order denying the motion to suppress and the judgment granting forfeiture of the assets. Having concluded the search and seizure was unlawful, reaching the other issues would be unnecessary.

[¶ 37] Daniel J. Crothers