Lead Opinion
[¶ 1] Abdullahi Ahmed Adan and Sem-ereab Haile Tesfaye appealed' the judgments entered on conditional pleas of guilty to the charges of possession of a controlled substance with intent to manu
I.
[¶ 2] While driving westbound on 1-94, Officer Steven Clark observed a maroon, four-door car traveling east at approximately 73 mph in a 75 mph zone. The vehicle appeared to weave in its lane and Officer Clark noticed that the vehicle was from out of state. After turning around to follow it, Officer Clark noted that the vehicle had slowed down to approximately 70 mph. From several car lengths behind, Officer Clark saw the driver reach into the backseat of the vehicle and appear to place a blanket or jacket over something in the backseat. Officer Clark pulled alongside the vehicle and observed the driver with his hands at ten and two on the wheel, staring intently forward, and a passenger who appeared to be sleeping. While alongside the vehicle, Officer Clark observed the driver moving the corner of his mouth, as if he were trying to hide his conversation with the passenger. However, not seeing any traffic infractions, Officer Clark stopped following the vehicle.
[¶ 3] Although he did not see any traffic infractions, Officer Clark remained suspicious of the vehicle and called Officer Steve Edwards to relay his suspicions and tell him to be on the lookout for the vehicle. While talking with Officer Edwards, Officer Clark also relayed all of the information he observed while following the vehicle. Officer Edwards located the suspicious vehicle and observed it speeding and following too close to the vehicle' in front of it. Based on these traffic violations, Officer Edwards initiated a traffic stop.
[¶ 4] The driver pulled off to the side of the road and left his blinker on. Officer Edwards identified the driver as Adan and the passenger as Tesfaye. During the traffic stop, Officer Edwards observed a blanket, covering approximately half of the backseat, an air freshener, a bottle of Ozone scent spray, a global positioning system (“GPS”), eye drops, a lighter, and an energy drink in the vehicle.
[¶ 5] Officer Edwards asked Adan to come back to his patrol vehicle to answer a few questions. During this time, Adan appeared nervous to Officer Edwards; Adan touched his face, licked his lips, and his shoulders quivered. Adan confirmed that the vehicle was a rental and explained that he had rented the vehicle in St. Cloud and used it to travel to Fargo and then to Watford City to drop a friend off for work. Officer Edwards stated that he did not observe any luggage consistent with this length of a trip, but acknowledged that he did not look in the trunk of the car for any luggage.
[¶ 6] Officer Edwards also noted that during his interactions with Tesfaye, Tes-faye appeared to' be evasive, never looking him in the eye. When questioned about the travel plans, Tesfaye replied that he and Adan were traveling from the Willi-ston area. Tesfaye was also unable to recall the name of the passenger Adan had dropped off, even though they had ridden together for a couple of days. ■
[¶ 7] Through a records check, Officer Edwards discovered that Tesfaye was recently placed on probation for possession of methamphetamine. After this discovery, Officer Edwards asked Tesfaye if there was anything illegal in the vehicle and whether there was any methamphetamine or marijuana. Tesfaye answered, “No,” to each inquiry, but broke eye contact with Officer Edwards when asked about the presence of marijuana. During
[¶ 8] After the traffic stop, Officer Edwards issued Adan a warning and asked if Adan had time to answer a few more questions; Adan agreed. Officer Edwards asked a few questions about Adan’s trip before asking permission to search his vehicle and have a dog walk around it. Adan did not consent. Officer Edwards called dispatch to send a K-9 to his location. Forty-five minutes later,' a K-9 arrived and signaled on the presence of narcotics. After a search of the vehicle, officers seized over two pounds of marijuana.
II.
[¶ 9] When reviewing a district court’s denial of a motion to suppress, we defer to the trial court’s findings of fact. State v. Kitchen,
[1110] The parties do not dispute the fact that the initial stop of Adan and Tesfaye’s vehicle was proper. As we have previously stated, “traffic violations, even if considered common or minor, constitute prohibited conduct and, therefore, provide officers with requisite suspicion for conducting investigatory stops.” State v. Stadsvold,
[¶ 11] During a valid traffic stop, “an officer can temporarily detain the traffic violator at the scene of the violation.” Fields,
[¶ 12] When deciding whether reasonable suspicion 'exists, this Court looks at the totality of the circumstances, applies an objective standard, and takes “into account the inferences and deductions that an investigating officer would make, that may elude a layperson.” Fields,
III.
[¶ 13] On appeal, Adan and Tesfaye argue that after they were given a written warning for their driving conduct, Officer Edwards lacked a reasonable and articula-ble suspicion that criminal activity was afoot to continue to detain them.
[¶ 14] The district court found that Officer Edwards relied upon a number of different factors in establishing a reasonable, articulable suspicion. Such factors include: the information relayed to him by Officer Clark, the nervousness of both Adan and Tesfaye, the different accounts of the trip’s destination, items he observed in the vehicle, Tesfaye’s criminal history, and the fact the vehicle was a rental.
A. Nervousness
[¶ 15] An individual’s nervousness during a traffic stop “is a pertinent factor in determining reasonable suspicion.” State v. Heitzmann,
[¶ 16] Here, both Adan and Tesfaye exhibited signs of nervousness. Adan’s first signs of nervousness occurred when Officer Clark was following the vehicle. Officer Clark observed Adan driving rigidly with his' hands gripped tightly at ten dnd two and placing a blanket or jacket in: the backseat as if attempting to cover something up. Officer Clark also thought it was suspicious that Adan avoided eye contact with him and looked like he was talking out of the side of his mouth to.Tesfaye, even though Tesfaye appeared to be sleeping. After disengaging the vehicle, Officer Clark called Officer Edwards and informed him of his observations. Because these observations were properly relayed to Officer Edwards, this Court may use Officer Clark’s observations in its determination of whether Officer Edwards had a reasonable suspicion of criminal activity.
[¶ 17] Adan also appeared nervous throughout his interactions with Officer Edwards. During the duration of the traffic stop, Adan left his blinker on. Officer Edwards believed this to be unusual and a sign of high stress, as most people turn the blinker off to get rid of the blinking sound. When Adan followed Officer Edwards back to the patrol vehicle, Adan was licking his lips, touching his face, and quivering. These actions made Officer Edwards believe that Adan was nervous.
[¶ 18] Tesfaye also exhibited different instances of nervousness throughout his interactions with Officer Edwards. When Officer Edwards first approached the vehicle on the passenger side, Tesfaye would not make eye contact; Tesfaye kept looking down toward the floor mat or at his feet and was generally evasive. Tesfaye did make eye contact with Officer Edwards later, when Officer Edwards questioned him about the presence of illegal substances in the vehicle. When asked if there was anything illegal or methamphetamine in the vehicle, Tesfaye held eye contact with Officer Edwards and answered, “No.” However, when asked if there was marijuana in the vehicle, Tes-faye broke eye contact and looked down when he answered, “No.”
B, Inconsistencies in Travel Plans
[¶ 19] When there are inconsistencies about the details of a trip, these inconsistencies may be used- in forming a reasonable suspicion. State v. Deviley,
C. Items in Vehicles
[¶20] The presence of different items in a vehicle can also be a factor in determining whether there was a reasonable suspicion of criminal activity. Franzen,
[¶ 21] Officer Edwards testified that through his training and experience he often sees scent eliminators, such as air fresheners, in his marijuana and drug arrests. Officer Edwards explained that drugs, especially marijuana, give off a very strong odor. Additionally, Officer Edwards thought the presence of the ■ GPS was significant for two reasons: first, because drug traffickers often go places they are unfamiliar with to obtain or drop off drugs; and, second, the drive from Fargo to either Watford City or Williston is simple, one right turn off of the interstate.
[¶ 22] Officer Edwards also found the presence of eye drops to be significant. Through his training and experience, Officer Edwards believed the presence of eye drops to be an indicator of marijuana use. He testified that eye drops were found, either on the individual or in the vehicle, in over half of his marijuana arrests. Officer Edwards explained that eye drops help treat the redness of the eyes which usually occurs after using marijuana. However, Officer Edwards also testified that there was nothing unusual about Adan’s appearance and that neither Adan nor Tesfaye appeared to be under the influence of any drug.
[¶ 23] Officer Edwards also testified that it was common for him to see energy drinks and antacids in vehicles trafficking drugs, as the driver is trying to coyer considerable distance in one stint. But, as stated above, the vehicle contained only one energy drink and no antacids.
[¶ 24] Additionally, Officer Edwards noted that he was unable to see any luggage which would typically be present on a multi-day road trip. However, Officer Edwards could not see into the trunk, nor did he inquire into whether the trunk contained luggage. Officer Edwards also did not observe any sort of drug paraphernalia in the vehicle. Although he did testify that it was not unusual to not find drug paraphernalia as some drug traffickers do not use the drugs they traffic.
D. Criminal History
[¶ 25] Although by itself it is insufficient, a person’s criminal history can support a finding of reasonable suspicion. Fields,
E. Rental Vehicle
[¶ 26] Both Officers Edwards and Clark testified that there was some significance in Tesfaye and Adan driving a rented vehicle. They testified that in their experience, individuals who traffic drugs typically use a rental vehicle. Officers Edwards and Clark explained that a rental vehicle is preferred by drug traffickers because, in the event that they are caught, their personal vehicles would not be seized. Officer Edwards testified that the fact the vehicle was a rental was “extremely relevant” in his training and experience with regard to drug interdiction.
[¶27] Tesfaye argues that this Court cannot use innocent conduct, such as possession of eye drops, energy drinks, and driving a rental vehicle, in its analysis of reasonable and articulable suspicion. We agree that such conduct is not inherently suspicious. However, this Court does not view each fact in isolation; rather, we look at the totality of the circumstances to determine if reasonable, articulable suspicion exists. Therefore, considering the totality of the circumstances, including (1) Adan and Tesfaye both acting nervous; (2) they told Officer Edwards conflicting stories about the trip; (3) Tesfaye did not know the name of the passenger they dropped off; (4) the vehicle contained masking agents, a GPS, eye drops, and an energy drink; (5) Tesfaye had recently been put on probation for possession of methamphetamine; and (6) the vehicle was a rental, we conclude there was reasonable and articula-ble suspicion that Adan and Tesfaye were engaged in criminal activity. And thus, their continued detention until a K-9 unit arrived was lawful.
IV.
[¶ 28] We affirm the district court’s judgments and orders denying Adan and Tesfaye’s motions to suppress.
Concurrence Opinion
concurring specially.
[¶30] I agree with, and have signed with, the majority. I agree with the district court that each little item noted by law enforcement in its own right would not be sufficient to form reasonable suspicion, but the amalgamation of the items does.
[¶ 31] I write separately to note the dissent attempts to create a new rule of law, stating, without authority, that for the seizure to be constitutionally acceptable, it could only be based on events that happened in Burleigh County. The dissent takes umbrage with the majority and the district court relying on events in Stark County to “bolster the conclusion that reasonable and articulable suspicion exists because the driver was ‘nervous.’ ” Dissent, at ¶ 42. The dissent carefully cherry picks the evidence to determine which of the facts standing alone “add little or nothing to the calculus of whether reasonable suspicion exists.” Id. at ¶43. I believe the dissent incorrectly applies the law, because what happened in Stark County, regardless of whether it is lawful activity or mundane activity, is part of the totality of the circumstances the detaining officer relied on to determine whether there was reasonable suspicion to extend the lawful traffic stop. Law enforcement is allowed to consider the tips received from other police officers or other informants, along
[¶ 32] Looking at the entire event is required when looking at the totality of the circumstances, as is the consideration that law enforcement officers may take into account inferences that may elude a lay person. State v. Fields,
[¶ 33] Here, there is no question the traffic stop is lawful. In regard to the additional detention, the district court made the following findings of fact to support reasonable and articulable suspicion: traveling below the speed limit; car had out-of-state license plates and was later determined , to be a rental car; driver was stiff with hands at the 10-2 position; after braking for a car entering the interstate, the driver stayed in the left lane for an extended period; driver did not look at the officer as he passed; driver talking out of the side of his mouth to a passenger who was reclined and appeared to be sleeping; driver appeared to put something in the back seat as if to cover something up; driver did not turn off the blinker when stopped; air freshener, a bottle of Ozone scent spray, a Bic lighter, and a bottle of eye drops were on the floor of the car; GPS in the car; driver" was shaking; Adan went to both the front seat and the back seat when he returned to the car to get the rental agreement; no visible luggage; Tes-faye had no identification; Tesfaye did not know the name of another passenger who had been riding with them; Tesfaye was on- probation for possession of methamphetamine; and Tesfaye stated they dropped off the passenger in the Williston area instead of Watford City as stated by Adan. Also found by the district court, the officers testified that based on their training and experience a number of the items found in the car were suspicious to mask the odor of drugs, and drug traffickers use GPS and tend to use rental cars to avoid potential seizure of their personal vehicle.
[¶ 34] In addition to those facts found specifically by the district court, the majority opinion points out several additional factors as testified by law enforcement: Evasive behavior by Tesfaye; not looking the officer in the eye; and Adan was quivering, shaking, constantly licking his lips, and touching his face. In the officer’s training and experience, this showed nervous behavior.
[¶ 35] While I agree that many of the findings standing alone may mean very little, when the totality of the circumstances is considered, there was reasonable suspicion to detain the defendants.
[¶ 36] Most concerning to me is the dissent’s assertion that the defendants were detained based on their race. Adan and Tesfaye did not raise race as an, issue in their motions to suppress. This assertion is not supported by the evidence presented to the district court. The officer was specifically asked in cross-examination whether the fact that the driver was African American was part of his suspicion, and the answer was “No.” It is for the
[¶ 37] Lisa Fair McEvers
Concurrence Opinion
concurring specially.
[¶ 38] I reluctantly concur in the result because our precedent, and post Rodriguez v. United States, — U.S. -,
[¶ 39] 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 visi.ble 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 articulable suspicion built on “officer training and experience.” Deviley,
[ÍI40] However, as the majority and Justice McEvers correctly point out, courts do not look at isolated facts in determining whether an officer possessed reasonable articulable suspicion. In Fields, this Court explained:
“Whether the facts support a reasonable and articulable suspicion is a question of law, fully reviewable on appeal. This Court considers the totality of. the circumstances when deciding whether reasonable suspicion exists. Although we have recognized that the concept of reasonable suspicion is not readily reduced to a neat set of legal rules, it does require more than a ‘mere hunch.’ To determine whether reasonable suspicion exists, we apply an objective standard, .taking into account the inferences-and . deductions that an investigating officer would make that may elude a layperson.*850 The question is whether a reasonable person in the officer’s position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity.”
State v. Fields,
[¶41] Here, the driver and passenger ostensibly disagreed on their destination. Tesfaye had no identification, did not know the name of the passenger they dropped off in North Dakota and was on probation for possession of methamphetamine. The district court apparently found credibility in the officers’ testimony that, based on training and experience, Adan showed unusual nervousness by quivering, shaking, constaptly licking his lips and touching his face. These facts, considered together with the otherwise innocent conduct and items, provided reasonable articulable suspicion of criminal activity allowing the defendants to be detained beyond completion of the traffic stop.
[¶ 42] ■ Whether reasonable articulable suspicion exists to prolong defendants’ detention is only part of the question, however. The remaining inquiry is whether the duration of the post-traffic offense detention was reasonable.
[¶ 43] I am troubled by the defendants’ 46 minute roadside detention while awaiting arrival of a drug-sniffing dog, especially given the thin suspicion to detain. However, neither party has argued the •length of. permissible detention is regulated by the depth of suspicion and, other than my own calculus from which I have been unable to craft a rule of law, I have found no case • advancing the notion. Therefore, once reasonable articulable suspicion exists, focus must remain on the length of detention alone.
[¶ 44] “An officer ... may conduct certain unrelated checks during an otherwise lawful traffic stop. But ... he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Rodriguez,
“The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. It is the State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an ■ investigative seizure.”
Florida v. Royer,
[¶ 45] At some point, the duration of a driver’s detention awaiting arrival of a drug dog will violate the Fourth Amendment. See Wayne R. LaFave, Search and Séizure: A Treatise of the Fourth Amendment, 4 Search and Seizure § 9.2(f), n. 234 (5th ed.2016). (“The Supreme Court has recognized a ‘liberty interest in proceeding with [an] itinerary,’ United States v. Place,
[¶ 46] Daniel J. Crothers
Dissenting Opinion
dissenting.
[¶ 47] If this, stop and later seizure were to be constitutionally acceptable, it would have to be solely on the basis of what happened in Burleigh County and not with any reference to what happened in Stark County. What was observed in Stark County added no objective basis for the eventual detention and search. In Stark County, two men were seen in a car with out-of-state plates. The car was going slightly under the speed limit. The driver had his hands at “ten and two” and did not look at the officer driving beside him. The driver appeared to talk out of the side of his mouth to a passenger whose posture would indicate he was sleeping and the driver reached into the back seat. These mundane observations add very little to the calculus of a finding of reasonable suspicion. What the majority opinion does not mention is that the two men in the car with out-of-state license plates are black. In my opinion, the appellants were the subjects of a blatant case of “driving while black.”
[¶ 48] Tesfaye and Adan may or may not have come to the attention of law enforcement in Burleigh County for speeding, but the fact is Officer Clark in Stark County directed another officer in another county to be on the lookout for the car on the basis of information that Officer Clark acknowledged gave him no reason to stop the car. It is also worth noting Officer Clark had to turn his vehicle around after spotting the appellants traveling in the opposite direction. He followed the vehicle for roughly seven miles before deciding to disengage.
[¶ 49] At the suppression hearing, Officer Clark was asked by defense counsel on cross-examination:
Q. Could you see the driver and his features?
A. I saw a male driver. Yes.
Q. Did you take any notice of his skin color?
A. I observed he was African American. Yes.
Q. Did that play into your suspicion?
A. No.
Officer Clark testified the fact the men appeared to be African-American “played no role” in his decision to tell another officer in another county “if you could try and keep an eye out for the vehicle and if you can get a stop on it, see what’s going on.” Officer Clark could not remember if he had relayed the racial information to Officer Edwards. Officer Edwards observed the car in Morton County, had to turn around, and ultimately stopped the car in Burleigh County for following too close and traveling 65 miles per hour in a 60-mile-per-hour zone.
[¶ 50] Even if the directed stop was a total pretext, there is no license to drive five miles over the speed limit, so the stop for speeding was valid. Whren v. United States,
[¶ 52] Both the district court and the majority rely on events, in Stark County to bolster the conclusion that reasonable and articulable suspicion exists because the driver was “nervous.” Aside from the fact he was African-American and the car had out-of-state license plates, this assumption is made from the fact that he was driving in Stark County within the speed limit, with his hands on “ten and two,” did not look at the officer driving beside him, and possibly placed something in the back seat. These facts do not tend to lead to a conclusion a crime was being or about to be committed, regardless of any level of “training or experience.” What suggestion of criminal activity does this articulate? The officer and the majority rely on “nervousness” but being nervous is not criminal and unless this Court is going to reverse Fields,
[¶ 53] The fact Adan was in a vehicle with an out-of-state license plate should add little or nothing to the calculus of whether reasonable suspicion exists. “It is wholly improper to assume that an individual is more likely to be engaged in criminal conduct because of his state of residence[.]” Vasquez v. Lewis,
[¶ 54] Officer Edwards articulates his reasons for finding the driver suspicious in a manner that suggests he is rejecting common sense reasons for his observations in favor of finding them suspicious. According to Officer Edwards, a man without a coat who has walked through 30-degree windy weather does not shiver because he is cold:
Besides the quivering shoulders, I didn’t see any quivering of, like, the mouth. When you get cold, your teeth chatter. I didn’t see quivering of any other area except just the shoulders, where it could be nerve induced, I guess.
[¶ 55] Officer Edwards finds the driver’s and passenger’s stories inconsistent, The driver said he dropped another passenger off “in Watford City,” the passenger said “in the Williston area,” not, as the majority says, “in Williston.”
[¶ 56] The reason for finding the presence of a GPS suspicious borders on ridiculous. GPS devices have become so ubiquitous in today’s technological society that the presence of a GPS unit in a vehicle traveling on an interstate- highway should not be surprising, much less suspicious. Officer Edwards carefully explained that drug traffickers “are doing cross country travel where they don’t know where they’re going.” Adan and Tesfaye’s trip was from St. Cloud, Minnesota, to Watford City.
So from Fargo to Watford City, which would consist of, typically, traveling*853 along 1-94 and taking one right-hand turn on Highway 85. .
Q, So it’s just a simple trip with one turn is something you typically wouldn’t need a GPS for?
A. Correct.
Apparently North Dakotans and those who travel here have no need of technology to find locations within the state, or, we are suspicious if we use it. If that is the case, every driver with a “smart phone” is suspicious.
[¶ 57] Officer Edwards found it suspicious that the two men were traveling across two states, but he did not see luggage in the ear. He acknowledged he did not ask them if they had luggage or look in the trunk before reaching this conclusion. Officer Edwards also noted Officer Clark made him aware that Adan and his passenger were driving a rental car. There- is nothing inherently suspicious in an individual’s use of a rental car. See, e.g,, United States v. Beck,
[¶ 58] Officer Edwards found the presence of an air freshener, an Ozone spray, and a cigarette lighter suspicious. We have said the presence of odor maskers can contribute to reasonable and articula-ble suspicion. State v. Franzen,
[¶ 59] While reasonable suspicion is something determined under the totality of the circumstances, such a finding should not be created based upon piling up of innocuous facts. It is “impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation.” Beck,
[¶ 60] Officer Edwards issued a warning about fifteen minutes after he stopped Adan. At that point the purpose of the stop was complete. Officer Edwards decided to detain Adan and call for a drug dog when Adan declined his request to search the car. At that time, Officer Edwards had nothing more than a hunch, which proved to be a good hunch, there were drugs in the car. “[A] search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.” United States v. Di Re,
[¶ 61] While there were odor maskers present in this case like in Franzen, based on Officer Edwards’ description of Adan’s demeanor and behavior, there was no “extreme and persistent nervousness” or evidence of a drug culture to support a finding of reasonable suspicion.
[¶ 62] Whether reasonable and articu-lable suspicion exists is a question of law and fully reviewable on appeal. Fields,
[¶ 63] Carol Ronning Kapsner