F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 6 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-8059
THOMAS RAYMOND SANTOS,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. NO. 03-CR-0033-B)
James H. Barrett, Assistant Federal Defender (Michael G. Katz, Federal Public
Defender, with him on the briefs), Cheyenne, Wyoming for Appellant.
Darrell L. Fun, Assistant United States Attorney (Matthew H. Mead, United
States Attorney, with him on the brief), Cheyenne, Wyoming, for Appellee.
Before HARTZ , McCONNELL , and McWILLIAMS , Circuit Judges.
McCONNELL , Circuit Judge.
This case involves a routine traffic stop with the all-too-routine
denouement, a drug conviction. But it has some troubling features: seeming
reliance on the defendant’s selective refusal of consent as a basis for reasonable
suspicion, apparent inconsistencies between the district court’s findings of fact
based on the officer’s testimony and the video tape of the traffic stop, and
relatively weak indicators of suspicious behavior. Nonetheless, doing our best to
apply the standards currently prescribed by the Supreme Court, we AFFIRM .
I. FACTS
On January 13, 2003, Wyoming Highway Patrol Trooper Ben Peech
observed a white Lincoln Town Car driving eastbound, and clocked its speed at
eighty-two miles per hour. 1
Trooper Peech initiated a traffic stop and informed
Defendant Thomas Raymond Santos, the vehicle’s driver, that he had been
stopped for driving eighty-two miles per hour in a seventy-five mile per hour
zone. Trooper Peech asked for Mr. Santos’s license and registration and noticed,
while Mr. Santos collected the documents and handed them to him, that Mr.
Santos’s hand was visibly shaking. At that time Trooper Peech also observed that
the car had California plates, that there was a cell phone in the ashtray, and that
the car was clean and uncluttered. The car was licensed to a rental agency, and
when Mr. Santos produced the rental agreement, Trooper Peech observed that Mr.
1
The district court’s order twice indicates that Trooper Peech clocked Mr.
Santos at 83 miles per hour and twice suggests that the speed was 82 miles per
hour. Op. at 2, 12. No reasons for this discrepancy are given in the order; the
evidence before the district court at the suppression hearing was that Trooper
Peech clocked Mr. Santos at 82 miles per hour and indicated as much to Mr.
Santos.
2
Santos’s hand was again visibly shaking.
Trooper Peech asked Mr. Santos to join him in his patrol car so that he
could issue a warning for the speeding violation. While issuing the warning and
conducting a routine check of Mr. Santos’s documents and driving status, Trooper
Peech learned from the rental agreement that Mr. Santos’s car had been rented
January 10, 2003, in Sonoma County, California, and was due to be returned there
on January 17, 2003. While completing his check and the warning, Trooper Peech
began to question Mr. Santos regarding his travel plans. His suspicions were
aroused both by answers he found to be evasive and by Mr. Santos’s apparent
nervousness:
Defendant stated that he was going to New York City to visit his
mother and move his sister out to California. Defendant said that he
had last seen his mother a year ago and that his sister was recently
divorced and worked for the Division of Motor Vehicles (“DMV”) in
New York, but that she had not yet found work in California. When
Trooper Peech asked Defendant how long he would stay in New
York, Defendant was very vague, stating that his job only gave him a
couple of weeks. When Peech asked if he would be there for a week
or so, Defendant responded, “Yeah, more or less.” Peech noticed
that Defendant became visibly nervous. Defendant suddenly changed
topics from discussing the details of his trip to the weather, stating
that he heard that it would be snowing on his return trip. Defendant
also swallowed hard, licked his lips, nervously stroked the top edge
of the head liner of the patrol car with his hand, and his lip was
quivering.
Op. at 3. Trooper Peech was sufficiently suspicious of Mr. Santos’s answers and
3
manner at this point to ask dispatch to conduct a criminal history check on Mr.
Santos. Trooper Peech continued to discuss Mr. Santos’s travel plans, eliciting
the information that Mr. Santos would be driving back to California. Trooper
Peech then explained the warning citation to Mr. Santos, returned his documents,
and wished him a safe trip. Mr. Santos opened the door and continued to
converse with Trooper Peech, although now on topics unrelated to his own travel
plans. After Trooper Peech again wished him a safe trip, Mr. Santos left the
vehicle.
A few moments later, however, when Mr. Santos had reached the front of
the patrol car, Trooper Peech asked, and Mr. Santos gave, permission to ask
additional questions. Trooper Peech returned to the topic of Mr. Santos’s
itinerary, and was informed that Mr. Santos was going to New York to visit his
mother and “hopefully” to pick up his sister, that he planned to stay there three or
five days, and that his sister was recently divorced and was moving to California
without having found a job there. Mr. Santos was able to supply an address for
his mother’s brownstone house in New York, but he did not know the phone
number. Mr. Santos was also uncertain what his sister’s job at the DMV entailed
or what the exact ages of her three young children were. Mr. Santos said that the
woman he had previously referred to as his sister was actually his half-sister. Mr.
Santos also indicated that he was irritated with Trooper Peech’s persistent course
4
of questioning when the warning had already been issued.
At this juncture, dispatch notified Trooper Peech that Mr. Santos had a
prior criminal history of several drug offenses, and Trooper Peech became “highly
suspicious that the vehicle contained drugs.” Op. at 5. Trooper Peech
accordingly asked Mr. Santos if there were any guns, bombs, dead bodies, or body
parts in the vehicle, to which Mr. Santos replied that there were not and asked if
Trooper Peech wanted to check the car. When Trooper Peech asked if there were
any drugs in the car, Mr. Santos said that there were not, but when asked for
permission to search the car, responded indirectly with the question, “Does it look
like there are dead bodies in there?” Op. at 6. When asked again for permission
to search, Mr. Santos used the key fob to open the trunk automatically. Before
beginning the search, Trooper Peech again asked for permission to search for
drugs, and Mr. Santos asked why permission was sought. Trooper Peech
informed Mr. Santos that his story was inconsistent and that he had a prior
criminal history for drugs. Mr. Santos denied having any prior drug charges.
Upon being asked for permission again, Mr. Santos waved his open arms at the
trunk in a gesture Trooper Peech understood to mean he had permission to search
the trunk.
Trooper Peech found in the trunk a Little America plastic bag, two smaller
5
bags, and a new black suitcase with a lock and a storage tag dated December 3 on
it. Trooper Peech asked for, and was ultimately denied, Mr. Santos’s permission
to search the suitcase. Trooper Peech immediately called for a drug dog, which
arrived in approximately twenty-two minutes, and alerted to the presence of
drugs. A subsequent search of the suitcase revealed five plastic bags containing
methamphetamine weighing approximately five pounds in total.
Mr. Santos was indicted for possessing with the intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). After
the district court’s denial of his motion to suppress the evidence of the
methamphetamine, Mr. Santos entered a conditional plea of guilty pursuant to a
plea agreement. Mr. Santos now appeals the denial of his motion to suppress,
maintaining that Trooper Peech did not have the requisite reasonable suspicion for
a police officer to detain a suspect pending the arrival of a drug dog.
II. ANALYSIS
A. STANDARD OF REVIEW
The Supreme Court has described appellate review of whether an officer
had reasonable suspicion as “de novo,” Ornelas v. United States, 517 U.S. 690,
699 (1996), which ordinarily means “[a]n appeal in which the appellate court uses
the trial court’s record but reviews the evidence and law without deference to the
trial court’s rulings.” Black’s Law Dictionary 94 (7th ed. 1999). As Justice
6
Scalia has noted, however, it is “a peculiar sort of de novo review.” United States
v. Arvizu, 534 U.S. 266, 278 (2002) (Scalia, J., concurring). Not only must we
uphold the factual findings of a district court made in connection with a motion to
suppress unless those findings are clearly erroneous, United States v. Williams ,
271 F.3d 1262, 1266 (10th Cir. 2001) (citing United States v. Hunnicutt , 135 F.3d
1345, 1348 (10th Cir. 1998)), but we must view the evidence in the light most
favorable to the determination of the district court. Id. (citing United States v.
West , 219 F.3d 1171, 1176 (10th Cir.2000)); see also Ornelas , 517 U.S. at 699
(“[A] reviewing court should take care both to review findings of historical fact
only for clear error and to give due weight to inferences drawn from those facts
by resident judges . . . .”). Reviewing courts must also defer to the “ability of a
trained law enforcement officer to distinguish between innocent and suspicious
actions.” United States v. McRae, 81 F.3d 1528, 1534 (10th Cir. 1996); see also
Arvizu, 534 U.S. at 273 (reviewing courts must “allow[] 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’”) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981));
Ornelas, 517 U.S. at 700 (“[O]ur cases have recognized that a police officer may
draw inferences based on his own experience in deciding whether probable cause
exists.”).
7
In practice, this looks more like deference—indeed, double
deference—than de novo review. Indeed, the Supreme Court has unanimously
reversed courts of appeals for overturning district court decisions denying
motions to suppress, even when every single factor identified by the officers
involved as suspicious was either innocuous or susceptible of an innocent
explanation. See Arvizu , 534 U.S. at 277 (“[u]ndoubtedly, each of these factors
alone is susceptible of innocent explanation,” but “[t]aken together, we believe
they sufficed to form a particularized and objective basis for . . . stopping the
vehicle”). With those principles in mind, we proceed to review the “totality of
the circumstances” in this case to determine whether the district court was correct
to hold that the Fourth Amendment was not violated.
B. REASONABLE SUSPICION
Mr. Santos does not dispute that he was speeding when he was stopped by
Trooper Peech, 2
and thus that the traffic stop was justified at its inception under
objective standards. Nor does Mr. Santos dispute that the initial phase of the
search, after Trooper Peech returned his documents, was conducted with his
express consent. When Trooper Peech proposed to search the black suitcase in
2
Mr. Santos testified, and in subsequent briefing has maintained, that his
cruise control was set at 77 miles per hour when Trooper Peech pulled him over.
Since it is undisputed that the applicable speed limit was 75 miles per hour, Mr.
Santos was speeding by his own account. Trooper Peech testified Mr. Santos was
going 82 miles per hour.
8
Mr. Santos’s trunk, however, Mr. Santos said no. Trooper Peech then detained
Mr. Santos while a drug dog was brought to the scene. That detention was not
consensual. The question, then, is whether Trooper Peech had reasonable
suspicion to justify detaining Mr. Santos at that point.
1. Refusal of Consent
Mr. Santos argues that it was his refusal to allow a search of his suitcase,
rather than the concatenation of circumstances invoked by the trooper and
accepted by the district court, that was the basis for the finding of suspicion.
Regrettably, Mr. Santos’s argument is not without support in the record. At the
conclusion of the suppression hearing the district court commented that “I think
there was a permission to search here, except he declared the suitcase out of
bounds, which was in itself suspicious.” R. Vol. 2 at 122. Mr. Santos’s
unwillingness to consent resurfaced at his sentencing hearing. The district court
stated:
I think that Officer Peach [sic] had reasonable grounds to suspect
that you were carrying something you shouldn’t have been, and
particularly when you allow the search of every part of the car except
that black bag sitting there. I think that that makes—would make any
law enforcement officer reasonably suspicious. It sure would me.
And I think it would anybody else.
And I think that that is an exception to the rule—that the
officer can’t consider the denial of the right to search as a suspicious
circumstance because in this case, it was with reference to that bag
that was sitting there, and I believe that that would be an exception.
So, basically, I really don’t think your appeal is worth a darn.
9
R. Vol. 3 at 14-15.
The district court was wrong about this. A refusal to consent to a search
cannot itself form the basis for reasonable suspicion: “it should go without saying
that consideration of such a refusal would violate the Fourth Amendment.”
United States v. Wood , 106 F.3d 942, 946 (10th Cir. 1997); see also United States
v. Dozal , 173 F.3d 787, 794 (10th Cir. 1999); Hunnicutt, 135 F.3d at 1350-51;
accord United States v. Hyppolite , 65 F.3d 1151, 1157 (4th Cir. 1995); United
States v. Alexander , 835 F.2d 1406,1409 n.3 (11th Cir. 1988). If refusal of
consent were a basis for reasonable suspicion, nothing would be left of Fourth
Amendment protections. A motorist who consented to a search could be
searched; and a motorist who refused consent could be searched, as well. With
considerable understatement, this Court has observed that the requirements of
reasonable suspicion and probable cause for warrantless searches and seizures
“would be considerably less effective if citizens’ insistence that searches and
seizures be conducted in conformity with constitutional norms could create the
suspicion or cause that renders their consent unnecessary.” Hunnicutt , 135 F.3d
at 1351.
Moreover, the district court’s opaque reference to an exception when the
refusal is “with reference to that bag that was sitting there” is unsupported by any
legal principles of which we are aware. A person has the right to limit the scope
10
of his consent. United States v. Marquez, 337 F.3d 1203, 1207 (10th Cir. 2003).
However suspicious the tailoring of consent may be as a matter of common sense,
it cannot be a basis for “reasonable suspicion” under the Fourth Amendment, lest
the very idea of voluntary consent be rendered fictional.
If the district court had relied on Mr. Santos’s refusal to consent in its order
denying the motion to suppress, that would be reversible error. See Williams , 271
F.3d at 1271 (noting that the defendant’s contention that the officer based his
detention solely on a refusal to consent to a search, if true, “of course . . . would
result in an unconstitutional search”). But that is not what happened. The district
court’s order denying the motion to suppress listed some nine factors that it
believed, taken as a totality, supported reasonable suspicion, and Mr. Santos’s
refusal to consent to the search of his suitcase was not among them. The court’s
remarks on the consent issue occurred at the close of the suppression hearing and
again during the sentencing hearing. We do not think they so infected the court’s
analysis of the suppression issue as to warrant per se reversal. We must,
however, bear the court’s remarks in mind as we consider the nine factors listed
in the court’s order, to make sure that the denial of the motion to suppress is
objectively supportable on those grounds, without the illegitimate additional
consideration of the withholding of consent. The “due weight” that an appellate
court must accord the inferences drawn by the district court, Ornelas, 517 U.S. at
11
699, is substantially diminished when there is reason to believe those inferences
were affected by an illegitimate consideration.
2. The factors said to warrant reasonable suspicion, considered
individually
The district court listed nine factors in support of Trooper Peech’s
determination of reasonable suspicion warranting detention of Mr. Santos:
(1) Defendant appeared more nervous than usual for someone pulled
over for a traffic violation; (2) Defendant’s nervousness increased
when asked about his vacation plans and length of stay, and he
suddenly changed the subject to the weather; (3) Defendant’s rental
agreement indicated an eight-day rental from California, when he
was only as far as Wyoming on the fourth day of that rental,
suggesting that he planned to turn right back after reaching New
York rather than staying several days or a week; (4) Defendant gave
vague, evasive, and inconsistent answers concerning his length of
stay; (5) Defendant was traveling from a known drug source location
(San Francisco Bay Area) to a known drug destination (New York
City); (6) Defendant knew his mother’s address, but not her
telephone number; (8) 3 Defendant’s sister had a secure job in New
York but was moving to California without having a job there; (9)
Defendant had a past criminal record for drug offenses, and he
denied this record; and (10) the suitcase in the vehicle had a lock on
it.
Op. at 14-15. We consider these in the order listed. In the final analysis,
however, the question is whether, taken as a whole, they support a finding of
reasonable suspicion. Arvizu , 534 U.S. at 274; United States v. Fernandez , 18
3
Number seven appears to have been omitted, so that there are only nine
factors in total.
12
F.3d 874, 878 (10th Cir. 1994).
a. Nervousness
Factors (1) and (2) relate to nervousness. The district court made a factual
finding that Mr. Santos “appeared more nervous than usual for someone pulled
over for a traffic violation” and that his “nervousness increased when asked about
his vacation plans and length of stay.” Op. at 14. The indications of Mr. Santos’s
nervousness, as found by the district court, were changing the topic from his
travel plans to the weather, swallowing hard, licking his lips, which were
quivering, and nervously stroking the top edge of the head liner of the patrol car
with his hand. Op. at 3.
When a motorist detained for a routine traffic violation, such as speeding,
shows unusual signs of nervousness, this may be considered as part of the totality
of circumstances a reasonable law enforcement officer would analyze in
investigating possible crimes. United States v. Johnson , 364 F.3d 1185, 1192
(10th Cir. 2004). But nervousness is a sufficiently common – indeed natural –
reaction to confrontation with the police that unless it is unusually severe or
persistent, or accompanied by other, more probative, grounds for reasonable
suspicion, it is “‘of limited significance’ in determining whether reasonable
suspicion exists.” Williams , 271 F.3d at 1268 (quoting United States v. Wald , 216
F.3d 1222, 1227 (10th Cir. 2000)); see Delaware v. Prouse , 440 U.S. 648, 657
13
(1979) (noting that traffic stops “may create substantial anxiety”). Only
extraordinary and prolonged nervousness can weigh significantly in the
assessment of reasonable suspicion. Williams, supra ; see also West , 219 F.3d at
1179; United States v. Salzano , 158 F.3d 1107, 1113 (10th Cir. 1998).
Mr. Santos maintains that the video tape produced by the camera mounted
on the patrol car “belies all of the ‘observations’” related by Trooper Peech at the
suppression hearing and found as facts by the district court, and “reveals an
individual who is demonstrably not particularly nervous.” Appellant’s Br. 5 n.2.
Our review of the video tape tends to corroborate Mr. Santos’s assessment. While
standing in front of the police cruiser Mr. Santos is seen fielding the officer’s
questions and answering them with little hesitation, albeit with increasing
annoyance. To be sure, the two points at which the district court found the
Defendant most nervous are not recorded on the video tape. The first is when Mr.
Santos was initially contacted by Trooper Peech and is still sitting in the Lincoln.
The second is when Mr. Santos is seated in the rear of the patrol car, where we
can hear but not see him.
But our assessment of the tape is not the issue. The district court made a
factual finding that Mr. Santos appeared unusually nervous, and we cannot say
that finding was clearly erroneous. Those moments when the district court found
Mr. Santos to be most nervous—during the initial stop and when in Trooper
14
Peech’s car—were not recorded by the video camera. Cf. United States v.
Berrelleza, 90 Fed. Appx. 361 (10th Cir. 2004) (unpublished) (crediting testimony
that the canine alerted outside the view of the video tape). In addition to viewing
the video tape, the district court heard the testimony of Trooper Peech and Mr.
Santos, and it is in the best position to assess the credibility of that testimony.
Mr. Santos’s suggestion that this Court make its own analysis of the degree
of nervousness displayed on the tape asks us in effect to usurp the district court’s
position as finder of fact. We must reject this invitation, since the availability of
some of the same evidence that was before the district court does not transform
this Court into the factfinder:
The rationale for deference to the original finder of fact is not
limited to the superiority of the trial judge’s position to make
determinations of credibility. The trial judge’s major role is the
determination of fact, and with experience in fulfilling that role
comes expertise. Duplication of the trial judge’s efforts in the court
of appeals would very likely contribute only negligibly to the
accuracy of fact determination at a huge cost in diversion of judicial
resources.
Anderson v. City of Bessemer , 470 U.S. 564, 574-75 (1985). We have had
occasion to invoke this rule in another context when the fact that we had “listened
to the same tape recording the trial court heard” was urged as a rationale to
accord the trial court a lesser degree of deference than it is normally owed.
United States v. Little , 60 F.3d 708, 714 n.5 (10th Cir. 1995). The increasing
availability of videotapes of traffic stops due to cameras mounted on patrol cars
15
does not deprive district courts of their expertise as finders of fact, or alter our
precedent to the effect that appellate courts owe deference to the factual findings
of district courts. 4
In any event, we hold that the degree of nervousness found by the district
court, while not inconsequential, is insufficient to be given much weight in the
reasonable suspicion calculus. In undertaking this analysis, we bear in mind that
the officer (and not the court) was present at the encounter, and the officer (and
not the court) has the training and experience to evaluate and compare the
reactions of motorists to questioning. We therefore give Trooper Peech’s
assessment the “due weight” to which it is entitled under the Supreme Court’s
precedents. Arvizu , 534 U.S. at 273-74; Ornelas , 517 U.S. at 699. But neither
Trooper Peech nor the district court described Mr. Santos’s nervousness as
extreme, extraordinary, or prolonged. According to Trooper Peech, Mr. Santos’s
hand shook visibly when handing over his license and registration early in the
stop. Mr. Santos appeared to relax, however, during the first part of his interview
in Trooper Peech’s car, only to become increasingly nervous as the interview
increased in length and the officer questioned him more pointedly about his story.
For a motorist to become more nervous as the questioning becomes more
4
It would, however, facilitate appellate review if district courts would make
explicit the basis for their findings when those findings seem to be contradicted
by, or at least not supported by, the video tape of the events.
16
prolonged and skeptical is not unnatural. Such behavior falls short of the
“extreme nervousness [that] did not dissipate throughout the entire stop” that led
us to credit the finding of reasonable suspicion in Williams . 271 F.3d at 1269.
b. The Rental Car Agreement
The third factor listed by the district court in support of a finding of
reasonable suspicion was the comparison of Mr. Santos’s rental car agreement
with his travel plans. Mr. Santos had rented a car in California on January 10,
was in Wyoming on January 13, and proposed to drive to New York and back
despite a January 17 “due date” in his rental agreement for returning the car to
California. As summarized by the district court: “Defendant’s rental agreement
indicated an eight-day rental from California, when he was only as far as
Wyoming on the fourth day of that rental, suggesting that he planned to turn right
back after reaching New York rather than staying several days or a week.” Op. at
14–15.
Implausible travel plans can contribute to reasonable suspicion. United
States v. Kopp , 45 F.3d 1450, 1453-54 (10th Cir. 1995); United States v. Sanchez-
Valderuten , 11 F.3d 985, 989 (10th Cir. 1993). A four-day, cross-country round
trip does seem unusual, especially if the driver planned to visit with his mother in
New York, pack up his sister, and return with her to California. But this may be
reading too much into the rental agreement. The government presented no
17
evidence that extending the car rental period would entail any financial penalty,
or even any increase in the rate. 5
Common experience suggests that it is not
unusual for a driver to rent a car for a certain period, and then to extend the rental
without incurring a penalty or paying a higher rate. Such an arrangement may
suggest that the driver’s travel plans are uncertain or subject to change, but,
without more, not that they are implausible.
This case thus bears some resemblance to, but is ultimately distinguishable
from United States v. McRae , 81 F.3d 1528 (10th Cir. 1996). In McRae , the
defendant rented an automobile in California, with an anticipated return date of
January 14. On January 12, he was stopped in southern Utah for a routine traffic
violation and informed the officer he was going to New York to attend a friend’s
wedding. The officer asked if the defendant was going to return the car in New
York, and “if he would like to be charged a late fee, that sort of thing.” Id. at
1531. This Court observed that these travel plans were not “as implausible or
contradictory” as those in the Court’s precedents, but that the defendant’s
“evident lack of concern about how he would return the rental car displays an
5
Trooper Peech stated that it would cost Mr. Santos $90 a day for an
extended rental. R. Vol. 2 at 75. This was simply the daily rate specified on the
rental agreement. See R. Vol. 6, Exh. 1. It is not clear from the rental agreement,
and nothing in the record clarifies, whether Mr. Santos would have been charged
this $90 daily rate for additional days, or the reduced $67.49 the rental agreement
appears to specify for days above a week’s rental.
18
unusually cavalier attitude towards a financial obligation most people take quite
seriously.” Id. at 1535. The Court “conclude[d] that his vague response to
Officer Colyar’s inquiries concerning his rental car arrangements correctly
contributed to a reasonable suspicion in a trained and experienced officer like
Officer Colyar.” Id.
The present case is distinguishable from McRae . In McRae , the Court did
not find the mere fact that a driver entered a rental car agreement with an
anticipated return date earlier than his probable return “implausible” or
“contradictory” in itself; it was the defendant’s “cavalier attitude” toward his
financial obligations, reflected in his “vague responses” to the officer’s direct
questions, that formed the basis for reasonable suspicion. Here, by contrast,
Trooper Peech noticed the return date on the rental agreement but did not discuss
its implications with Mr. Santos. The district court here did not rely on the nature
of Mr. Santos’s “attitude” or “responses” regarding this issue in denying the
motion to suppress.
We note also that in McRae , there was testimony that the defendant would
incur—or at least thought he would incur—a “late fee” if he failed to return the
vehicle two days after the traffic stop. Id. at 1540 n.5 (Murphy, J., concurring).
There was no such testimony or evidence in this case. We decline to read McRae
broadly, as holding that the mere existence of a rental agreement with an
19
anticipated return date earlier than the defendant’s travel plans would make
convenient, without more, supports a finding of reasonable suspicion.
c. Vague, Evasive, and Inconsistent Answers
Three of the factors invoked by the district court related to Mr. Santos’s
vague, evasive, or inconsistent answers to questions about his travel plans: “(4)
Defendant gave vague, evasive, and inconsistent answers concerning his length of
stay; . . . (6) Defendant knew his mother’s address, but not her telephone number;
(8) Defendant’s sister had a secure job in New York but was moving to California
without having a job there.” Op. at 15. The details of the conversation between
Trooper Peech and Mr. Santos are set forth in the “Background” section of the
district court’s Order:
Peech and Defendant conversed while the warning citation was being
issued and routine driving status was being checked. Defendant stated that
he was going to New York City to visit his mother and move his sister out
to California. Defendant said that he had last seen his mother a year ago
and that his sister was recently divorced and worked for the Division of
Motor Vehicles (“DMV”) in New York, but that she had not yet found work
in California. When Trooper Peech asked Defendant how long he would
stay in New York, Defendant was very vague, stating that his job only gave
him a couple of weeks. When Peech asked if he would be there for a week
or so, Defendant responded, “Yeah, more or less.” Peech noticed that
Defendant became visibly nervous. Defendant suddenly changed topics
from discussing the details of his trip to the weather, stating that he heard
that it would be snowing on his return trip. . . .
Defendant stated that his mother owned a house in New York City
and that he worked as a salesman at a Ford dealership in California.
Defendant also said that New York was another two days away, and that he
would be driving back to California. At approximately 3:27 p.m., Peech
20
explained the warning citation and returned Defendant’s documents.
Defendant stated that he would have his cruise control checked in New
York. Peech said, “You have a safe trip, Mr. Santos,” and Defendant
opened the door to exit the patrol car. However, he then initiated another
conversation with Trooper Peech about the patrol car and how some law
enforcement agencies lease their vehicles. Afterwards, Peech said, “You
have a safe trip, okay?” Defendant then exited the patrol car.
However, in front of the patrol car, at approximately 3:29 p.m.,
Trooper Peech re-initiated contact with Defendant and requested permission
to ask more questions. Defendant replied, “Sure.” He told Peech that he
was going to New York to visit his mother. When Peech asked if he was
also going to pick up his sister, he replied, “Hopefully.” When Peech asked
if he was going to stay in New York three to five days, Defendant
responded, “Three or five days.” Defendant also said that his mother
owned a brownstone house in New York, and he gave an address for it, but
he did not know the phone number. Defendant confirmed that his sister
was recently divorced and moving to California without having found a job
there. When Peech asked what his sister did for DMV, Defendant replied,
“Whatever they do in DMV.”
Defendant said that he did not fly to New York because his sister was
afraid to fly, and he had two weeks off from work. When asked what his
sister’s name was, Defendant said, “It is going to be Visceranos, after she
changes it back to her maiden name.” Defendant then indicated that his
“sister” was in fact his half-sister, who was thirty-nine years old with three
small children. He could not remember their ages but thought that they
were three or four years old. Defendant then became irritated and asked
why he was being questioned after having already received the traffic
warning. Trooper Peech told him that he was just doing his job, and that it
was “cop stuff.”
Op. at 3–5.
We accept the district court’s characterization of some of Mr. Santos’s
answers as “vague, evasive, and inconsistent.” At first, Mr. Santos stated he
would stay in New York “about a week or so,” and later amended this to “three or
21
five days.” At first, he called his sister his “sister,” and later said she was really
his “half-sister.” He did not provide specifics regarding the duties his sister
performed for the DMV, and said he did not know his mother’s telephone number
or the ages of his sister’s children.
As part of the totality of the circumstances, Trooper Peech was entitled to
view Mr. Santos’s answers as some indication that his story about going to New
York to pick up his sister was just that: a story. Confusion about details is often
an indication that a story is being fabricated on the spot. Mr. Santos volunteered
information about his family, but was unable to supply corroborative details
ordinarily known to a family member, and he seemed to shift his ground upon
close questioning. Other courts have accepted similarly evasive or inconsistent
accounts of travel plans as part of the reasonable suspicion calculus. See Weaver
v. Shadoan, 340 F.3d 398, 408 (6th Cir. 2003) (“An officer’s doubt regarding
expressed travel plans or the purpose of a trip can also be bolstered by a
passenger’s inconsistent statements.”); United States v. Johnson, 58 F.3d 356,
357-58 (8th Cir. 1995).
We stress, however, that conversation of this sort is not sufficient, in and of
itself, to warrant detaining or searching a motorist. With the benefit of hindsight –
the discovery of commercial quantities of narcotics in his car – we know that Mr.
Santos’s story was just a cover. But the inconsistences and gaps in his story were
22
not so significant that they would arouse genuine suspicion in the absence of
other indications of wrongdoing. Many modern people, even innocent ones,
program important phone numbers into their telephones and no longer memorize
them. It may be lamentable that an uncle would not know the ages of his nieces
and nephews, but it is hardly an indication that crime is afoot. Moreover, many
motorists, even innocent ones, might think it none of the trooper’s business how
long they were going to stay in New York, or where their sisters worked, or why
their recently divorced sisters are planning to move to California, or what work
they might get when they arrive. 6 The Supreme Court has repeatedly held that
refusal to answer law enforcement questions cannot form the basis of reasonable
suspicion. See Florida v. Bostick, 501 U.S. 429, 437 (1991) (“We have
consistently held that a refusal to cooperate, without more, does not furnish the
minimal level of objective justification needed for a detention or seizure.”) (citing
INS v. Delgado, 466 U.S. 210, 216–17 (1984); Florida v. Royer, 460 U.S. 491,
6
Under this Court’s precedents, as part of a legitimate traffic stop a law
enforcement officer is permitted to ask a motorist questions about “travel plans.”
United States v. Holt, 264 F.3d 1215, 1220 (10th Cir. 2001) (en banc); see also
West, 219 F.3d at 1176 (“[Q]uestions about travel plans are routine and may be
asked as a matter of course without exceeding the proper scope of a traffic stop.”)
(internal quotation omitted). The Supreme Court has recently held that where the
detention is not “prolonged by the questioning, there was no additional seizure
within the meaning of the Fourth Amendment.” Muehler v. Mena, 2005 WL
645221, *5 (U.S. Mar. 22, 2005). In this case, Mr. Santos raises no issue
regarding the relevance or length of the questioning.
23
498 (1983) (plurality); Brown v. Texas, 443 U.S. 47, 52–53 (1979)). Vague
answers may sometimes be a polite way to sidestep impertinent questions. This
might also explain Mr. Santos’s attempt to shift the subject to the weather. We
therefore do not give much independent weight to this factor. But in conjunction
with other factors, it contributed to Trooper Peech’s determination of reasonable
suspicion.
d. Travel Between Drug Sources and Destinations
The fifth factor invoked by the district court is that Mr. Santos “was
traveling from a known drug source location (San Francisco Bay Area) to a
known drug destination (New York City).” Op. at 15. Even the government
acknowledges that this factor is weak. If travel between two of this country’s
largest population centers is a ground on which reasonable suspicion may be
predicated, it is difficult to imagine an activity incapable of justifying police
suspicion and an accompanying investigative detention. Our holding that
suspicious travel plans can form an element of reasonable suspicion should not be
taken as an invitation to find travel suspicious per se. See United States v. Beck,
140 F.3d 1129, 1138 n.3 (8th Cir. 1998) (collecting cases in which law
enforcement has declared nearly every large urban area to be a drug source city),
cited in Williams, 271 F.3d at 1270.
e. Prior Criminal History
24
The next factor discussed by the district court is that Mr. Santos denied that
he had a prior criminal record. After Mr. Santos and Trooper Peech had left the
patrol car and were discussing Mr. Santos’s travel plans, dispatch notified
Trooper Peech that Mr. Santos had a positive criminal history for drugs. When
Mr. Santos questioned Trooper Peech’s reasons for asking for permission to
search for drugs, Trooper Peech informed him that his story was inconsistent and
that he had a prior criminal history for drugs. Mr. Santos denied having any prior
drug charges.
This is the most powerful reason the district court offered for sustaining the
finding of reasonable suspicion. To be sure, this Court has held that a prior
criminal history is by itself insufficient to create reasonable suspicion. United
States v. Sandoval , 29 F.3d 537, 542 (10th Cir. 1994). Even people with prior
convictions retain Fourth Amendment rights; they are not roving targets for
warrantless searches. But in conjunction with other factors, criminal history
contributes powerfully to the reasonable suspicion calculus. Id.; see also McRae ,
81 F.3d at 1535–36 . Moreover, when the individual lies about having a criminal
history, the inference of wrongdoing is all the more powerful. See id. at 1536 n.7
(noting that the driver’s lie about his criminal history made it “very easy to
conclude that [the officer had] articulable suspicion”).
f. The Locked Bag
25
The final factor the district court considered in holding that Trooper Peech
had reasonable suspicion sufficient to detain Mr. Santos was that the suitcase in
which methamphetamine was subsequently discovered had a lock on it. Neither
the district court nor the government has offered any case law in support of the
proposition that a lock on a suitcase may be a factor creating reasonable
suspicion, or any empirical support for such an inference. The government
properly reminds us that officers often possess expertise permitting them to
understand the criminal connotations associated with facts that may seem innocent
to the untrained. See Arvizu , 534 U.S. at 273. Deference to law enforcement
officers becomes inappropriate, however, when an officer relies on a circumstance
incorrigibly free of associations with criminal activity. See United States v.
Mendez , 118 F.3d 1426, 1431 (10th Cir. 1997) (“[S]ome facts are so innocuous
and ‘so susceptible to varying interpretations’ that they carry little or no weight.”)
(quoting United States v. Lee , 73 F.3d 1034, 1039 (10th Cir. 1996)). In light of
the many wholly innocent explanations for locking a suitcase during car travel,
the locked suitcase adds nothing to the calculus.
g. The Storage Locker Tag
The district court noted, but did not rely on, one additional fact: that Mr.
Santos’s suitcase had on it a storage locker tag. At the suppression hearing
Trooper Peech indicated that the tag suggested drug trafficking to him because, in
26
his experience, drug distributors sometimes preserve their anonymity by placing
drugs in storage lockers and then mailing the key to a courier. This inference is
weakened by the length of time that had elapsed between the date on the tag and
the date of the traffic stop. The storage locker tag was dated December 3; Mr.
Santos’s traffic stop occurred on January 13. It seems unlikely that drug couriers
would allow over a month to elapse between putting the suitcase into storage and
transporting it to its destination. The tag nonetheless reasonably contributed to
Trooper Peech’s suspicions.
3. The Totality of the Circumstances
Thus far, we have separately examined each of the nine factors invoked by
the district court, plus an additional factor mentioned by the police officer. Some
of them—Mr. Santos’s nervousness and his evasive answers, for example—must
be taken into consideration but do not weigh very heavily in the calculus. Some
of them are pure makeweights. Only Mr. Santos’s prior criminal record and
denial of it are genuinely suspicious. But, as the Supreme Court has admonished,
it would be legal error to employ a divide-and-conquer strategy. Arvizu, 534 U.S.
at 274. We must consider the factors as a whole, giving due weight to the
reasonable inferences of the resident district court and to Trooper Peech’s
expertise. Id. at 273; Johnson, 364 F.3d at 1193.
Trooper Peech was confronted by a motorist with a criminal record, who
27
denied any criminal record and immediately attempted to deflect questions about
drugs by asking the trooper if he really thought there were dead bodies in the car.
Mr. Santos told a story about plans to pick up his sister in New York and bring
her back to California, but the story changed in minor ways and he could not
provide much detail about his family; his car rental agreement was for a shorter
period than his story would suggest. He was, moreover, nervous during
questioning, at least when outside the view of the video tape. His locked suitcase
bore a storage locker tag.
This set of facts, taken individually, might not mean much to ordinary
observers. But the Supreme Court has emphasized that “reviewing courts . . .
must look at the ‘totality of the circumstances’ of each case to see whether the
detaining officer has a ‘particularized and objective basis for suspecting legal
wrongdoing.” Arvizu , 534 U.S. at 273, quoting United States v. Cortez , 449 U.S.
411, 417-18 (1981). “This process allows 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.” Arvizu , 534 U.S. at 273, quoting Cortez , 449 U.S. at 418. In light of
that standard of review, we cannot say that Trooper Peech’s suspicion that Mr.
Santos was engaged in wrongdoing, informed as it was by his experience and
28
specialized training, was unreasonable.
The district court’s denial of Mr. Santos’s motion to suppress is
accordingly AFFIRMED .
29
03-8059 - United States v. Santos
HARTZ, Circuit Judge, concurring:
I would give more weight than Judge McConnell to the rental agreement
and Mr. Santos’s responses regarding his travel plans, but otherwise I join his fine
opinion.