The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Dedrick HALEY, Defendant-Appellee. The People of the State of Colorado, Plaintiff-Appellant, v. Gene Dunlap, Defendant-Appellee. The People of the State of Colorado, Plaintiff-Appellant, v. Larry Daniels, Defendant-Appellee.
Nos. 01SA148, 01SA149, 01SA150
Supreme Court of Colorado, En Banc.
Nov. 27, 2001.
41 P.3d 666
The People bear the burden of demonstrating that the defendant‘s statements were voluntary by a preponderance of the evidence. See People v. Valdez, 969 P.2d 208, 210 (Colo. 1998). The majority correctly explains this burden, but then fails to apply it to the inadequate record here. Because the record is inadequate upon which to base any conclusion of law, I would hold that the People failed to meet their burden of proof, and thus would affirm the trial court‘s suppression order.
Justice BENDER joins in the dissent.
David S. Kaplan, Colorado State Public Defender, Frederick M. Callaway, Deputy State Public Defender, Grand Junction, CO, Attorneys for Defendant-Appellant Gene Dunlap.
Colleen B. Scissors, Grand Junction, CO, Attorney for Defendant-Appellant Larry Daniels.
Justice HOBBS delivered the Opinion of the Court.
In these three consolidated interlocutory appeals, the prosecution challenges the trial court‘s suppression of evidence obtained as a result of a dog sniff search of a car after the reason for the traffic stop had been completed. In accordance with our prior case law interpreting
I.
These interlocutory appeals have been consolidated for opinion because they have identical facts and legal issues. Officer Mike Miller, a member of the Grand Valley Joint Drug Task Force, was performing highway drug interdiction on Interstate 70 in Mesa County on December 16, 2000, when he saw the defendants’ automobile heading eastbound. Officer Miller thought that the vehicle was following the truck in front of it too closely, so he conducted a traffic stop. The statute for the offense of following too closely,
In response to Officer Miller‘s questioning, Haley explained that he was coming from Sacramento, California, where he had visited friends for a few days, and was now heading home to Kansas. Haley stated that he and his passengers had flown to Sacramento, but could not afford to fly back home, so they rented a car. Officer Miller noticed that the cost of the rental car was approximately $800 a week, and the car had been rented the previous day at the Sacramento airport for a week. Throughout this conversation, Officer Miller observed sеveral nervous behaviors: Haley‘s hands were shaking, he was licking his lips indicating that his mouth was dry, he was stuttering, and he was shuffling his feet.
Because Haley had not provided him with the vehicle registration, Officer Miller returned to the vehicle and asked Dunlap to find it in the glove compartment. In response to Officer Miller asking Dunlap where he was going, Dunlap did not answer and exhibited shaking hands and a facial twitch. Daniels also did not answer the question until Officer Miller suggested the answer Haley had given, that they were going home. Daniels agreed with the officer‘s suggestion.
After Dunlap handed him the registration document, Officer Miller returned to Haley to give him back his paperwork. According to Officer Miller, Haley was walking in circles and appeared nervous. Officer Miller decided not to issue him a citation for the traffic offense and told Haley he was free to go, but immediately following thereafter, he asked Haley whether he “had any drugs or anything illegal in the vehicle.” Haley said no. Next, according to Officer Miller, Haley consented to a dog sniff search of the luggage, saying, “Do you want to check it out?” Officer Miller asked for consent to have the dog sniff the car also, Haley said no. Haley removed three bags from the trunk of the car, and placed them about five feet away from the rental car.
During this time, Haley managed to hide a bottle of tequila under Miller‘s patrol vehicle. Haley and Officer Miller talked for about ten minutes until the other two officers arrived. Officer Millеr asked Haley about the tequila and requested identification from the other men in the car to establish their age. They supplied the identification.
Upon the other officers’ arrival, Officer Miller asked Haley if he had any weapons. Haley said no; one of the officers patted him down, finding no weapon. The police asked Daniels to get out of the vehicle; they found no weapons on him. The police then asked Dunlap to get out of the vehicle. Officer Miller noticed that Dunlap was trembling and had a large bulge in his waistband. Patting down Dunlap, the police found a package in his waistband that appeared to contain drugs.
Officer Miller attempted to place Dunlap under arrest; Dunlap resisted. A struggle ensued involving Dunlap, Haley, and the police. Daniels was not involved. Dunlap fled the scene on foot. Officer Daley chased after Dunlap on foot. Dunlap threw Christmas stockings into the brush. Officer Daley apprehended Dunlap. The police recovered the stockings, which contained kilo-sized bricks of cocaine. Daniels made a statement after signing a Miranda waiver.
The police placed the three men under arrest. The prosecution charged them with several offenses.1 Haley, Dunlap, and Daniels pleaded not guilty and requested a jury trial. The trial court conducted a pretrial motions hearing on May 11, 2001. The trial court judge ordered the evidence suppressed on grounds of an illegal search. The trial court ruled that a dog sniff of an automobile from its exterior to detect substances therein constitutes a search under
II.
We hold under
A. Standard of Review
When reviewing a trial court‘s suppression order, we defer to its findings of fact, but review its conclusions of law de novo. Outlaw v. People, 17 P.3d 150, 157 (Colo. 2001); People v. Garcia, 11 P.3d 449, 453 (Colo. 2000). We must determine on appeal whether the trial court applied the correct legal standards to the facts of the case,
B. Dog Sniff Searches
The
Nevertheless, in applying
In some instances, we have determined certain investigative activities to be searches, even though the United States Supreme Court determined that they were not. See Oates, 698 P.2d at 816 (government-installed beeper in a 100 lb. drum of phenyl-acetic acid purchased from a chemical company was a search under Colorado Constitution); Sporleder, 666 P.2d at 139-40 (governmental installation of a pen register is a search under Colorado Constitution); Charnes v. DiGiacomo, 200 Colo. 84, 98-99, 612 P.2d 1117, 1120-21 (1980) (governmental seizure of bank records violated the Colorado Constitution).
Based upon our precedent under the Colorado Constitution, we conclude that a dog sniff search of a person‘s automobile in connection with a traffic stop that is prolonged beyond its purpose to conduct a drug investigation intrudes upon a reasonable expectation of privacy and constitutes a search and seizure requiring reasonable suspicion of criminal activity. Our holding here accords with cases we decided after Place. See People v. May, 886 P.2d 280, 282 (Colo. 1994) (holding that a dog sniff of an express mail package was a search); People v. Boylan, 854 P.2d 807, 812 (Colo. 1993) (holding that a dog sniff of a federal express package was a search); People v. Unruh, 713 P.2d 370, 377-78 (Colo. 1986) (holding that a dog sniff search of a safe taken by a burglar from the defendant‘s home was a search); see also People v. Redinger, 906 P.2d 81, 85-86 (Colo. 1995) (holding that reasonable suspicion is required to prolong a traffic stop after the purpose for which the investigatory stop was instituted has been accomplished).4
An individual must have a reasonable expectation of privacy in order to succeed in a challenge based on illegal search or seizure. Katz, 389 U.S. at 353; May, 886 P.2d at 281; Unruh, 713 P.2d at 377. In evaluating the legitimacy of the defendant‘s constitutional privacy interеst, the proper inquiry involves two parts: whether the defendant expected that his or her privacy interest would be free from governmental intrusion, and if so, “whether that expectation is one that society is prepared to recognize as reasonable.” Sporleder, 666 P.2d at 140; United States v. Nicholson, 144 F.3d 632, 636 (10th Cir. 1998). We have previously held that “whether an expectation of privacy is reasonable may be tested against the customs, values, and common understandings that confer a sense of privacy upon many of our basic social activities.” Oates, 698 P.2d at 816.
The prosecution argues that a dog merely enhances the olfactory senses of an officer, does not involve physical intrusion into a private area, and is minimally intrusive because all that the dog detects is in the air surrounding the object. We do not find this argument persuasive.5 Here, in the absence of reasonable suspicion that illegal activity was occurring other than the traffic infraction, Officer Miller‘s sole purpose was to conduct a drug investigation and to detect whether evidenсe hidden from view was within the car. In May, we reasoned that such use of a drug dog amounted to a search because the defendant had a constitutional interest in a sealed package and the dog sniff of the package with its contents hidden from view amounted to a search. May, 886 P.2d at 282.
While we acknowledge that automobiles enjoy a lesser expectation of privacy in our society than private homes, citizens have a reasonable expectation of privacy from search and seizure in their cars and in their persons as they travel the state‘s roads. See New York v. Class, 475 U.S. 106, 112 (1986) (“A citizen
Trаvelers on the roads of Colorado may reasonably expect that law enforcement officers may stop them for violating traffic laws; they do not expect that persons will be detained and their automobiles searched because of traffic stops once the reason for those stops has been accomplished. The intrusion is limited to the reason for the stop unless other circumstances or acts permit the intrusion to continue.
During a valid traffic stop an officer may request a driver‘s license, vehicle registration and proof of insurance. An officer may also run a computer check for outstanding warrants so long as this procedure does not unreasonably extend the duration of the temporary detention. These intrusions are brief and minimal. Once a driver produces a valid license and proof that he is entitled to operate the vehicle, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. People v. Rodriguez, 945 P.2d 1351, 1360 (Colo. 1997) (citations and quotation marks omitted).
C. The Dog Sniff Search In This Case
Thе prosecution argues that the use of a dog is not a search when the dog and its handler are lawfully in a public area. We disagree that this assertion applies here. The only reason the automobile stopped was because of Officer Miller‘s traffic stop. Cf. People v. Wieser, 796 P.2d 982, 986 (Colo. 1990) (where the object of a search was a public storage locker, the outside of which was made continually accessible to the public by virtue of a public right of way located next to it). The police detained this automobile for a drug search, just as they detained the objects involved in our Boylan and May cases.
1. Reasonable Expectation of Privacy
Under the doctrine of stare decisis, we follow the rule of law established in earlier cases “unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come from departing from precedent.” People v. Blehm, 983 P.2d 779, 788 (Colo. 1999). In Unruh, we rejected the prosecution‘s argument that a dog sniff search is always a reasonable intrusion. Id. at 379. Recognizing that the United States Supreme Cоurt has held differently under the
We ascertain no compelling reason for departing from our prior precedent under the Colorado Constitution. Our reasoning in prior cases involving dog sniff sеarches and prolonged traffic stops applies to the case before us. Accordingly, we determine that Haley, Dunlap, and Daniels possessed a privacy interest in their persons and vehicle being free from unreasonable governmental intrusion, and the drug investigation following the traffic stop in this case required reasonable suspicion for the dog sniff search to proceed. See Boylan, 854 P.2d at 811 (“[A] dog sniff search need not be justified by probable cause sufficient to obtain a search warrant, but instead only requires reasonable suspicion, similar to that required to stop and frisk a person suspected of involvement in imminent criminal activity.“); May, 886 P.2d at 282; Unruh, 713 P.2d at 379; see also Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). “When, as here, the purpose for which the investigatory stop was instituted has been accomplished and no other reasonable suspicion exists to support further investigation, there is no justification for continued detention and interrogation of citizens.” People v. Redinger, 906 P.2d 81, 85-86 (Colo. 1995); see People v. Ramos, 13 P.3d 295, 298 (Colo. 2000); see also People v. Cervantes-Arredondo, 17 P.3d 141, 147 (Colo. 2001). In Redinger, 906 P.2d at 86, we said that police conduct requiring additional information after the purpose of the initial investigation is sаtisfied is not justified in the absence of another basis for detention and questioning.
2. No Reasonable Suspicion
Reasonable suspicion warranting the continued investigation must be more than a hunch. Boylan, 854 P.2d at 812. Courts must consider the facts and circumstances known to the police officer at the time of the encounter in order to determine whether reasonable suspicion exists; this is an objective standard of reasonableness based on the circumstances known to the police at the time. Outlaw v. People, 17 P.3d 150, 160, 167 (Colo. 2001); May, 886 P.2d at 282. To satisfy its burden, the prosecution must show that the police had “specific and articulable facts which, when taken together with the reasonable inferences from these facts, give rise to a reasonable suspicion.” Boylan, 854 P.2d at 811; Unruh, 713 P.2d at 379; see also Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (stating that “determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior“).
At the suppression hearing, the trial court ruled that the police acted without reasonable suspicion. We agree. We determine here that the facts, when taken together, did not provide reasonable suspicion of criminal activity other than the traffic violation.
When reviewing a motion to suppress, “[w]e must defer to a trial court‘s findings of fact if those findings are supported by competent evidence in the record.” People v. Pitts, 13 P.3d 1218, 1221 (Colo. 2000); see also People v. Medina, 25 P.3d 1216, 1223 (Colo. 2001). However, we must examine the trial court‘s legal conclusions de novo. See Medina, 25 P.3d at 1223. Like the trial court, we must review the totality of the circumstances known to the police officers at the time of the encounter to determine whether the police had reasonable suspicion to conduct a search and seizure. Outlaw, 17 P.3d at 157. Therefore, we examine the encounter between Haley, Dunlap, Daniels and Officer Miller.
First, as a preliminary matter, the police had justification to make the traffic stop. See People v. Ramos, 13 P.3d 295, 297 (Colo. 2000) (holding that police officers are entitled to conduct an investigatory stop of a motorist if they have reasonable suspicion that the motorist has committed a traffic
The facts known to the police were: (1) Haley, Dunlap, and Daniels rented the car in Sacramento for one week and were traveling to Kansas City; (2) the driver and passengers looked very nervous; (3) they were traveling from Sacramento, California; (4) Dunlap and Daniels did not know where they were going; and (5) Haley consented to a dog sniff of the luggage but not the car.
The fact that Haley, Dunlap, and Daniels rented the car in Sacramento for one week and were traveling to Kansas City did not provide a reasonable inference of criminal activity. Traveling cross-country in a rental car in the company of others is not suspicious behavior. Officer Miller stated that he found it strange for three people to fly one-way to a city and then pay approximately $800 to drive back, rather than purchase return flights. However, people can choose land travel over air travel because they are visiting friends or tourist sites, or simply because they do not want to fly. The choice of means of travel at any time on the journey does not lend support to reasonable suspicion. See United States v. Wood, 106 F.3d 942, 947 (10th Cir. 1997) (finding that defendant‘s travel plans, flying one way to California and renting a car to drive back to Kansas, were not the sort of unusual plans that give rise to reasonable suspicion of criminal activity).
Officer Miller observed that Haley and his passengers all exhibited nervousness. Howevеr, it is “not uncommon for most citizens—whether innocent or guilty—to exhibit signs of nervousness when confronted by a law enforcement officer.” Wood, 106 F.3d at 948; see also United States v. Fernandez, 18 F.3d 874, 879-80 (10th Cir. 1994) (stating that “nervousness is of limited significance in determining reasonable suspicion” and that the government‘s repetitive reliance on nervousness as a basis for reasonable suspicion must be treated with caution).
Officer Miller characterized California as a drug source, with a particular reference to San Diego.10 There is no evidence in the record showing that Sacramento is a drug source; it is not close to an international border; nor, does this case involve an airport. We cannot assume as a basis for reasonable suspicion that cars traveling from California on I-70 in Colorado contain illegal drugs. Therefore, without further evidence showing that Sacramento is a drug source, this circumstance is of very little weight. See Karnes v. Skrutski, 62 F.3d 485, 495-96 (3d Cir. 1995) (“Florida is not the only ‘known drug center,’ and the mere fact that defendant was from Florida cannot be a factor supporting reasonаble suspicion. Presumably the vast bulk of people with cars regis-
The prosecution argues that Dunlap‘s and Daniels‘s failure to identify their destination supports reasonable suspicion of criminal activity. However, an examination of the record demonstrates that Dunlap did not respond to the question and Daniels agreed, after hesitating, with the officer‘s suggestion that he was going home.11 This was a consensual interview. Daniels and Dunlap‘s silence or hesitation in responding is not an inconsistency supporting reasonable suspicion. See Wood, 106 F.3d at 947 (stating that inconsistent information provided to an officer during a traffic stop may give rise to reasonable suspicion, but Wood‘s error in identifying the city where he rented the car is “not the sort of inconsistency that warrants such a conclusion“).
Evaluating the circumstances in totality, we conclude that the police in this case lacked reasonable suspicion of drug trafficking and incorrectly emрloyed Haley‘s denial of permission to search the car as reasonable suspicion to prolong the traffic stop in order to conduct a drug investigation. “The failure to consent to a search cannot form any part of the basis for reasonable suspicion.” Wood, 106 F.3d at 946; see United States v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999). Haley‘s conduct in reluctantly agreeing to a search of the luggage and refusing to consent to a search of the car is not a circumstance supporting reasonable suspicion. See United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998) (“Any other rule would make a mockery of the reasonable suspicion and probable cause requirements, as well as the consent doctrine. These legal principles would be considerably less effec-tive 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.“); Karnes, 62 F.3d at 495 (holding that the fact that defendant granted consent to police to search some items and then refused to give consеnt to additional searches cannot support a finding of reasonable suspicion); United States v. Carter, 985 F.2d 1095, 1097 (D.C. Cir. 1993) (“The constitutional right to withdraw one‘s consent to search would be of little value if the very fact of choosing to exercise that right could serve as any part of the basis for finding the reasonable suspicion that makes consent unnecessary.“).
We determine that the facts in this case, when taken together, did not justify the police finding reasonable suspicion of criminal activity other than the reason for the initial traffic stop. We agree with the trial court that the dog sniff search of the automobile for illegal substances required but lacked reasonable suspicion, in violation of
III.
Accordingly, we affirm the trial court‘s suppression orders, and return these cases to the trial court for further proceedings consistent with this opinion.
Justice KOURLIS dissents, and Justice RICE and Justice COATS join in the dissent.
Justice KOURLIS dissenting:
In my view, a dog sniff of the exterior of a car in a public place does not constitute a search within the meaning of the
I.
The purpose of both the
In 1983, the United States Supreme Court concluded that a defendant did not have a reasonable expectation of privacy in the odors emanating from his luggage and that, therefore, a dog sniff1 of that luggage was not a search. United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). While the Court acknowledged that a person possesses a privacy interest in the contents of personal luggage, it held that a canine sniff is “an investigative procedure that is so limited in both the manner in which the information is obtained and in the content of the information revealed by the procedure” that it does not constitute a search under the
In a subsequent case, the United States Supreme Court observed that lawmakers have enacted laws against the private possession of cocaine, and that a test designed only to detect the presence of that substance did not invade a reasonable expectation of privacy. United States v. Jacobsen, 466 U.S. 109, 123, 124, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). Because the test did not reveal information that actually compromised any legitimate interest in privacy, the court concluded that the testing was not a search. Id. at 124, 104 S. Ct. 1652. Most recently in City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000), the United States Supreme Court held that the dog sniff of a car is not a search.1
Hence, the United States Supreme Court and most state supreme courts conclude that a dog sniff of a vehicle is not a search.
II.
Colorado case law on point begins with People v. Unruh, 713 P.2d 370 (Colo. 1986), in which this court held that the use of a narcotics detecting dog to sniff a locked safe in the defendant‘s basement was a search. The court distinguished the holding in United States v. Place by suggesting that individuals have a reduced expectation of privacy in luggage or closed containers in airports, but that such reduced expectation did not apply to the home.2 The court discussed, but did
the Court ruled that using a thermal imager, a highly technologically advanced device not available to the general public to obtain information regarding the interior of a home, constituted a search. Id. at 40. The Court focused heavily on the special expectations of privacy attendant upon a home, and distinguished the situation from intrusions into areas characterized by reduced expectations of privacy. Id. Furthermore, the Court was primarily concerned about the revelation of myriad intimate and private details that a thermal imager, and the prospective use of continually advancing technology, could reveal. Kyllo, 121 S. Ct. at 2045-46. A dog sniff is not a technological advancement that invites the same sort of concern. Indeed, this court has noted that the use of canines for their recognized olfactory abilities has an extensive history dating back to early civilizations, and the information a dog can reveal has remained largely unchanged throughout that period. Brooks v. People, 975 P.2d 1105, 1111 n.6 (Colo. 1999); see also State v. Bergmann, 633 N.W.2d 328, 335 (Iowa 2001) (holding that a drug-sniffing dog is not technology of the type addressed in Kyllo). We have expressly held that the use of a dog‘s olfactory senses “does not involve scanning by infallible scientific devices, processes or theories.” Brooks, 975 P.2d at 1112.
Most recently, this court decided in People v. Ortega, 34 P.3d at 986, 991 (Colo. 2001), that a dog sniff of luggage on a Greyhound bus did not constitute a search. We expressly followed United States v. Place in stating that subjecting luggage to drug-sniffing canine detection does not constitute a search.
In my view, this line of cases supports a conclusion that the nature of the item or place being subjected to the dog sniff is the focal factor. If the sniff is of a home safe, a personal storage locker or a package, whether sent through the mail or through a private courier, it is a search. On the other hand, if the sniff is of luggage at a bus station, it is not a search.
This court has specifically acknowledged that there is a reduced expectation of privacy in vehicles. People v. Litchfield, 918 P.2d 1099, 1103 (Colo. 1996) (a reduced privacy interest in automobiles requires only a reasonable suspicion for search under any circumstances); People v. Thiret, 685 P.2d 193, 202 (Colo. 1984) (noting that there is a diminished expectation of privacy in an object designed exclusively as a means of transportation).
I, therefore, analogize the аutomobile to the luggage at the bus station—and not to an item in someone‘s home, and would conclude that an individual has no reasonable expectation of privacy in the illegal contents of a vehicle that are detected by means of odors emanating from that vehicle. Instead, I would rely upon United States v. Place and People v. Ortega to conclude that the dog sniff here was not a search.
III.
The majority here declines to follow the United States Supreme Court‘s analysis of the
The language addressing searches and seizures and our interpretation of that language is nearly identical for both the United States Constitution and the Coloradо Constitution. See Oates, 698 P.2d at 814; Sporleder, 666 P.2d at 139. Furthermore, neither this case nor any of our prior cases suggest a history unique to Colorado. In fact, our own court has been inconsistent in its application of the state constitution to afford more protection in cases involving dog sniffs.
In my view, it is not enough that a state supreme court differs with the United States Supreme Court. People v. P.H., 145 Ill. 2d 209, 164 Ill. Dec. 137, 582 N.E.2d 700 (1991) (Erickson, C.J., dissenting); see e.g., People v. Ramsey, 12 Cal. 3d 263, 127 Cal. Rptr. 629, 545 P.2d 1333, 1341 (1976) (Clark, J., dissenting) (observing that when a majority of the court decides which United States Supreme Court decisions to follow, deference to appellate courts quickly deteriorates into a “shell game“); People v. Disbrow, 16 Cal. 3d 101, 127 Cal. Rptr. 360, 545 P.2d 272, 283 (1976)
In summary, because the United States Supreme Court has read the
IV.
If it were a search, I suggest that it is here supported by ample reasonable suspicion of criminal activity. Reasonable suspicion, as the majority notes, arises from specific and articulable facts that create a reasonable inference of wrongdoing. Maj. op. at 674.
First, I agree with the majority that the traffic stop was fully justified. After observing the traffic violation, the officer, Mike Miller, approached the vehicle in his patrol car and Haley accelerated and attempted to change lanes. Once Miller stopped the vehicle, he obtained information that led to an objectively reasonable suspicion. He learned that Haley, Dunlap, and Daniels had rented the car in Sacramento, a city that Miller referred to as a drug source city, and were returning inland to Kansas City allegedly because the cost of the rental car ($866.38) was less expensive than the air fare. Further, the officer testified that purchasing a one way ticket to a drug source city and driving back was indicative of drug couriers because of the desire to avoid heightened security in airports. He observed that the driver and the passengers were all unusually nervous. Throughout the contact Haley “was just I mean physically shaking. His hands, everything, was shaking.” Haley‘s
mouth was dry and he was licking his lips, stuttering, shuffling his feet, and nervously pacing in circles. Daniel was also extremely nervous and exhibited a facial twitch and shaking hands and neither Dunlap nor Daniels knew their point of destination. Miller informed Haley that he was free to leave and asked him if he had any drugs or anything illegal in the vehicle, and Haley responded, “No. You want to check it out?” Haley asked the officer, “would you want to look at the bags or something?” Lastly, when Haley removed the bags from the trunk of the vehicle, he placed them directly outside the vehicle and then moved them an unusual distance away from the car and attempted to limit his consent to a search of the bags alone.3
Reasonable suspicion is a less exacting standard than probable cause. People v. Smith, 13 P.3d 300, 304 (Colo. 2000). This reduced standard requires only an objectively reasonable suspicion on the part of trained law enforcement officers that the ” ‘facts known to the officer [at the time of the encounter], [when] taken together with rational inferences from those facts, create[] a reasonable suspicion of criminal activity.’ ” People v. Sutherland, 686 P.2d 1272, 1274 (Colo. 1983); People v. Thomas, 660 P.2d 1272, 1274 (Colo. 1983); alterations in Sutherland; Outlaw v. People, 17 P.3d 150, 157 (Colo. 2001) (holding that “[a] trial court must take into account the totality of the circumstances known to police officers at the time of the intrusion, combined with any rational inferences therefrom“). Courts must be deferential to a law enforcement officer‘s ability to distinguish between innocent and suspicious actions. United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997); see also People v. Ratcliff, 778 P.2d 1371, 1379 (Colo. 1989) (holding that a defendant‘s actions, while appearing innocent to a casual observer, assume added significancе when considered in the context of a police officer‘s training and experience in drug enforcement). Here, that objectively reasonable suspicion existed. Miller concluded that the facts he knew at the time he trained the dog
This court has held that originating in a drug source city is one factor supporting a determination of reasonable suspicion. See People v. Morales, 935 P.2d 936, 941 (Colo. 1997). We have concluded that discrepancies of differing stories also add support to a finding of reasonable suspicion. Id. Further, we have acknowledged that reasonable suspicion of drug trafficking may be predicated, in part, on a cash transaction for a one way ticket and on nervous conduct. Id. n. 7 (citing Florida v. Royer, 460 U.S. 491, 502, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (stating that “appearance and conduct” may be factors supporting reasonable suspicion)). Unusual travel plans and inconsistencies in information provided to the officer during a traffic stоp may also give rise to reasonable suspicion of criminal activity. Wood, 106 F.3d at 946-47. Because reasonable suspicion is based on any rational inferences an officer may draw from the totality of the circumstances, a court must examine the combination of all the facts to determine whether an officer had reasonable suspicion of criminal activity. Morales, 935 P.2d at 941; Boylan, 854 P.2d at 812 (holding that, while each separate item standing alone did not provide reasonable suspicion, a combination of factors clearly satisfied the reasonable suspicion requirement). We have held that “there are circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot.” Morales, 935 P.2d at 941 (quoting Reid v. Georgia, 448 U.S. 438, 441, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980)). This case presents such circumstances.
Although we defer to the trial court in findings of fact, the majority acknowledges that this court reviews a trial court‘s conclusions of law de novo. Outlaw, 17 P.3d at 157; People v. Garcia, 11 P.3d 449, 453 (Colo. 2000). This court must independently determine whether the trial court applied the correct legal standard to the facts of the case, and whether sufficient evidence in the record supрorts its legal conclusions. People v. Rivas, 13 P.3d 315, 320 (Colo. 2000). Here I
would suggest that the trial court applied an inappropriately high threshold and drew the wrong legal conclusion as to the presence of reasonable suspicion.
V.
Because the United States Supreme Court has held that the dog sniff of a vehicle is not a search; because we held in Ortega that the dog sniff of luggage is not a search and I find that case instructive if not controlling; and because I would decline to invoke the Colorado Constitution to reach a different result, I would conclude that the dog sniff at issue here was not a search. Further, if the sniff here was indeed a search, I would conclude that it was supported by an objectively reasonable suspicion of wrongdoing.
Accordingly, I dissent from the majority opinion and would reverse the trial court‘s exclusion of the evidence at issue.
I am authorized to state that Justice RICE and Justice COATS join in this dissent.
The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Franklin TAYLOR, Defendant-Appellee.
No. 01SA333.
Supreme Court of Colorado, En Banc.
Feb. 25, 2002.
Notes
Q: And in your capacity as an investigаtor with the Grand Valley Joint Drug Task Force, do you have specialized training in identifying people who may be transporting narcotics?
Officer Miller: Yes, I do.
Q: And was that part of your consideration about the fact that Mr. Haley said that he had flown to California and that they were driving back, were you thinking?
A: Yes, that‘s correct. That‘s oftentimes the mode of—of activity is to fly. And then to avoid security, it‘s easier to drive—drive the drugs back.
Q: Okay. And what are the characteristics of a drug courier?
A: Nervousness. Indicators to look for at traffic stops, odor, origination, destination.
Q: What about origination, destination?
A: Typically drugs won‘t be coming from, say, Denver to San Diego. San Diego the price is cheaper, and it would not serve any purpose to transport in that direction, usually comes from the southwest or from the south and inland.
Officer Miller: “.... I asked [Dunlap] where he was headed to and where they were going.”
Q: You asked Mr. Dunlap that.
A: That‘s correct.
Q: And did he respond to you at that time?
A: No. He—he didn‘t answer. He just made a long like, um just wouldn‘t answer me.
....
Q: And did you also ask Mr. Daniels where they were going?
A: Yes, I did. I asked him. And he looked up up towards the roof of his car and like he was just thinking for a minute. And then I asked him, “You guys heading back home?” And eventually he said yes. He muttered something in between, but I didn‘t know what it was.