United States v. Edelmiro Augustin Fernandez

speed. lights Bushnell then activated his MOORE, Before SEYMOUR and Circuit excessively and the truck over for BROWN,* Judge. Judges, District and improper tinted windows and lane travel. approached Bushnell asked SEYMOUR, Judge. Circuit registra- for Fernandez’s driver’s license and A. was in- Defendant Edemiro tion. Both documents were Fernandez’s grand possession jury dicted a federal felt a name. Bushnell “tension in the air” intent to in viola- of cocaine with distribute trembling and noticed Fernandez’s hand was 841(a)(1) (1988). § of 21 Fernan- tion U.S.C. registration. Aplt. when he reached for his to Af- suppress filed a motion evidence. dez App., Suppression Hearing, 1/8/92, evidentiary hearing, magistrate ter an (hereinafter Aplt.App.). Blanch, passen- judge denying recommended Fernandez’s ger, was on sleeping the front next seat to suppress. motion to The district court Fernandez, young boy and a was behind the adopted magistrate’s Report and Recom- During front seat. the encounter Blanch entirety. mendation in its Fernandez en- up appeared seeing woke startled guilty reserving plea a conditional his tered trooper in the window of the truck. He sat right to the denial of motion to appeal his stiffly during the encounter. Bushnell asked suppress grounds. on Fourth Amendment for and Blanch’s received identification. record, reviewing After reverse. In response inquiries, to Bushnell’s Fer- nandez Blanch informed Bushnell

I. boy they was Blaneh’s son and that were taking Angeles Chicago him from Los to to High- Bushnell of Utah Lance grandmother. visit his This seemed unusual way patrolling Patrol was on In- southbound to Bushnell who asked if it more wasn’t cost- Nephi, terstate 15 near Utah he ob- fly boy Chicago or to effective efficient pickup a blue with a served GMC truck driving. replied instead Mr. Fernandez camper traveling He no- shell northbound. they had checked on airline tickets appeared ticed the be tinted windows price mentioned a Bushnell then $500. permitted darker than under Utah law. patrol car returned with Fernandez’s turnaround, Bushnell went the next turned registration. license and Bushnell testified highway, north onto the and traveled about nervousness, occupants’ that due to the truck eight up caught nine miles before he suspicious he became and concerned for his truck, apparently traveling which safety. backup He therefore radioed for fast. At no time did clock requested computer on NCIC check speed plan speeding truck’s it for a occupants. vehicle and its eventually caught violation. When Bushnell truck, up pulled alongside with the Mangelson Officer arrived or sev- after six visually confirm were windows too en minutes to assist Bushnell. As truck, dark. He noticed the driver’s side window returned the driver’s side of the driver, Mangelson one third down and approached passenger side. Fernandez, glanced warning over at The truck Bushnell him. had a citation and Fernan- pulled partially emergency registration posses- then over into the dez’s license and in his right highway lane side of the He sion. also retained Blanch’s identifica- approximately quarter returning traveled there for papers, tion. Without these Bush- speed. mile at questions. reduced Bushnell had not nell started to ask series of He patrol any yet lights weapons activated if the truck vehicle. asked there were inquired Bushnell considered the un- also driver’s behavior there * Brown, Kansas, Wesley sitting by designation. Honorable E. Senior District trict Judge, United for the States District Court Dis- Report adopted and Recommendation in vehicle. contraband

drugs or other entirety. negative, and both its replied drugs. occupants did use said why he was so Fernandez

Bushnell asked II. testimony sup- at During his the nervous. hearing, could not recall pression Bushnell reviewing Fourth In the Amendment did recall that response, but he Fernandez, uphold Fernandez’s factual we the claims unsatisfactory. Fernandez was they the answer findings the court district unless get increasingly ner- appeared Walker, to and Blanch clearly erroneous. United States continued. (10th as the encounter Cir.1991), vous de F.2d 815 cert. — nied, -, that Fernandez was not testified Bushnell at are mindful that We stopped. once had been free to leave he hearing suppress, a a the credi on motion or returning license Fernandez’s Without given bility weight of the witnesses identification, Bush- registration, or Blanch’s evidence, as well as inferences to look the truck. permission nell asked therefrom, conclusions drawn are matters Blanch to exit the started Fernandez Werking, judge. the trial verbally answering Bushnell vehicle without (10th Cir.1990). Howev again, you “Do so Bushnell asked er, the ultimate determination of reasonable to search truck?” understand want ques is a ness under Fourth Amendment understand, go replied, “I ahead.” tion of law which we review de novo. Walk (Magistrate Report at Aplt., App. Brief er, 933 F.2d at 815. Recommendation) (hereinafter Report); & Aplt.App. at three Amend- Fernandez raises Fourth Mangelson searching started Bushnell First, stop claims. he ment contends they pushed the together. As truck a pretextual because reasonable forward, they compart- observed a front seat not have under circumstances would carpet. piece ment covered When stop made the in the absence of an invalid carpet, they back the saw Second, argues deten- purpose. he that his through compartment seam the what beyond necessary tion time to issue a kilograms of co- appeared to be numerous suspi- citation was based on reasonable troopers arrested Fernandez and caine. The Finally, did not cion. he contends that he inventory An search the truck Blanch. give intelligent free and consent to search his kilograms of cocaine in vari- uncovered 123 claims in truck. We address each these compartments. ous hidden turn. judge concluded magistrate The pretextual

stop because the Utah A. Highway Unit which Bushnell was Patrol pretextual stop A an offi assigned regularly enforces tinted win- occurs when justification stop arresting issuing legal citations to cer some dow law uses person investigate un warning out-of-state driv- in order to Utah drivers and in violation of the law. The related criminal matters for which the officer ers who are magistrate judge suspicion. that Fernandez’s lacks found (10th Guzman, registration driver’s and vehicle license Cir.1988). Guzman, arrest, him but we the test not returned to until after defined pretextual stop. applied to claims of held that Bushnell had reasonable Finally, investigative To determine whether an deten justifying the continued detention. pretext ask although magistrate judge found that “at tion is unconstitutional as “ validly to search Fernandez ‘not whether the officer could have the time of the consent 20-21, detained,” Report the same being was still made but whether under circumstances reasonable officer would held that Fernandez’s consent nevertheless voluntary. stop He made the search was denied absence ” purpose.’ (quoting at 1517 Unit suppress motion to the district court invalid Smith, warning each these ed States citations resulted from Cir.1986)). of an out-of-state vehicle such as the appeal, truck at appears issue in this test, Applying the Guzman the dis regularly stops warnings issues court that the was not trict concluded such significantly motorists more than his pretextual. It stated counterparts.1 The evidence reveals a simi- Highway unit to “Utah Patrol which respect lar trend improper to the lane Bushnell was attached enforced Utah travel forty-four violations. Bushnell issued tinting regular Aplt. on a law basis.” window warnings for improper lane travel in a five 8,11. App. at district court that it noted period month while his five fellow officers policy Highway Utah Patrol is the warnings. issued between zero and five assigned to to Unit which Bushnell issue statistics, In addition to these the record warning tickets to out-of-state vehicles reveals that Bushnell observed the tinted and violation of the tinted window law highway window violation from across sixty-three warnings issued such Bushnell travelling opposite while direction as 1991, July and November of as well between Fernandez’s truck. He then to drove Thus, appears it as seven citations. turnaround, highway, next crossed over the stops routinely warning issues pursued truck approximately for citations to for exces out-of-state motorists eight actually or nine miles before pulling it sively practices tinted The routine windows. question over. We stop whether such a officer, however, individual will not of an would as usual” “business for reasonable pretext preclude objectively if an officer under same circumstances. See officer under the circum same Werking, 915 F.2d at 1408. would have stances not made the absent Looking together, at all this evidence it is Guzman, purpose. invalid See 864 an F.2d foregone not conclusion that a reasonable at officer under the same circumstances would objective There is considerable evidence in truck, stopped have Fernandez’s even view- that, suggesting although record this ing alleged together violations as Bush- Bushnell, stop was not for a reason- unusual did.2 Despite suggesting nell evidence might officer in able the same circumstances stop may pretextual, however, have been stopped Fernandez’s in this truck issue, expressly to decline decide this as we example, For while case. Bushnell issued grounds. reverse other sixty-three warning citations for tinted win- period, dows over a five month for statistics B. unit that in same Bushnell’s reveal five period warnings, month one officer issued no next contends that he Fernandez was each, warning unlawfully one two issued one seized when Bushnell detained warnings, beyond suspicion officer issued three and another him without reasonable twenty warnings. Aplt. necessary officer issued See time to issue a citation. With App., Assuming, respect exh. at investigative in accordance detentions of automo unit, policy the stated with Bushnell’s biles is well in this circuit that established pulled alongside 1. The dissent criticizes our use of statistics con- 2. When Bushnell Fernandez vehicle, cerning warning Bushnell's issuance citations and started to scrutinize the Harris, 1004, pulled speed and cites United States v. truck 995 reduced his into the (10th Cir.1993), proposition emergency 1005 that it When lane. Bushnell did activate Fernandez, lights dropped is immaterial whether an officer would issue a back behind warning. pickup highway formal citation or informal reentered Har- truck and re- however, where, inapplicable, reasoning speed. highly plausible 's ris its It is sumed Fer- here, over, policy thought being pulled the stated unit was and we Bushnell’s nandez he warnings interesting issue to out-of-state vehicles and find it Bushnell could not recall response why citations Utah vehicles. The individual offi- Fernandez's when Bushnell asked warning emergency Contrary statistics on issuance cer’s tickets into the lane. assertion, provides objective memory citations therefore some the dissent’s this lack of is an comparative frequency objective measure of the district factor a court consider type stop. judgment concerning pretext. which the officers make each its 1, 7, 1585, 104 conducting U.S. routine traffic [a]n Ohio, (1989); Terry license and may request driver’s check, computer registration, run a 20 L.Ed.2d 88 S.Ct. has When the driver a citation. issue We determine whether reasonable proof that he license and produced a valid by examining totality suspicion exists car, he operate must be is entitled Sokolow, 490 U.S. at the circumstances. way, proceed on his without allowed Ward, 1585-86; at delay by police subject further being (10th Cir.1992). questioning. additional argue that does not (citations Guzman, omit- ini to make the lacked reasonable Walker, F.2d at ted); 815-16. see also unlawfully that he was tial traffic but necessary beyond the time to issue detained re- finding that Bushnell the factual Given initial traffic citation. registration Fernandez’s license tained (10th Cir.1993) made, Soto, no there is until the arrest after (“When seized when question questioned that Fernandez was [the officer] defendant to the and started returned truck traffic about matters unrelated to initial stop. questions unrelated to the traffic asking phase.”). a new detention entered had we face is whether Bushnell The issue time to truck At the Bushnell returned justifying objectively suspicion reasonable warning began asking with the citation and of seizure Fernandez. continued questions drugs weapons, about and the evi that, although and dence shows Fernandez trav improper on truck’s lane Relying nervous, had passenger el, nervousness,” and “extreme Fernandez’s registration, driver’s license and both valid behavior,” Re “unusual passenger’s name, his own and that Fernandez and port adopted by the district court concluded gave passenger Blanch a consistent and suspi was reasonable seizure based very plausible explanation of their travel.3 21-22. The district court Report at cion. upon three factors relied district from distinguished present case Guzman court are insufficient to create reasonable in because “this case does not and Walker ” investigation.’ suspicion ‘routine traffic under the circumstances of this volve a largely Finally, First, court relied on Unit improper lane travel viola case. Walraven, F.2d 972 ed v. States justified partly stop the initial Fer tion of Cir.1989), support for the conclusion that sufficiently minor warrant nandez was to suspicion existed. While we do reasonable only warning citation. This is not a case findings of lower not find factual a defendant’s action or failure where evasive erroneous, clearly disagree we to be court troop pull promptly response over to a legal conclusion and hold that rea with its objective flashing lights is er’s an indication suspicion did not in this case. exist sonable something of more serious than minor traf Sharpe, fic infraction. See United States v. of Fernan- continued detention Bushnell’s 3, 105 n. 682 n. justified “specific only if dez can (evasive (1985) of actions facts and rational inferences articulable many sup one defendants’ vehicles factors [gave] rise to a rea- from those facts drawn suspicion); porting reasonable suspicion” activity. of criminal sonable (1st Cir.1992) Paleo, (flight v. An “in- Werking, 915 at 1407. officer’s speeding police signalled suspicion unparticularized choate ” creating factors one of several reasonable give rise reason- ‘hunch’ is insufficient Walraven, Sokolow, drug activity); suspicion suspicion. United States able quite correctly many people and Blanch were driv- court concluded The fact Chicago ing to visit a relative Blanch's son like can not air travel. The do not afford allegedly flying aroused instead of him there suspects' therefore did consider the court However, suspicions. the district Bushnell’s 4 (defendants’ heavy failure ear at 1520. The lower F.2d at court’s response flashing important car’s reliance on as an promptly nervousness fac- establishing supports finding suspicion tor lights siren reason- even case, given more suspicion). complete In this Fernandez im- troublesome able lack of mediately pulled over when Bushnell activat- evidence record Bushnell had flashing lights. prior knowledge ed his While found Fernandez or Blanch to unusual, improper travel as make evaluation of their Fernandez’ lane behavior. In this respect supra at n. an innocent cautious we-find the instant strikingly noted case Bloom, might pulls similar to United driver well believe an who States (10th Cir.1992), stays him on where alongside highway this court held patrol agent’s looking pull at him for him to border there intends “statement that circumstances, appeared “very Defendant reducing Under over. nervous’ and subjective speed moving emergency one’s into the ‘somewhat excited’ is a evaluation hardly gives suspi- of Defendant’s lane an officer reasonable behavior.” 975 F.2d at 1458. say The court cion to believe some other serious crime had went on to being been or committed. Nothing in the record indicates whether Agent any prior Oehoa knowledge had and third factors relied The second Defendant, so we do not understand how the claim of reasonable Agent Ochoa would know whether Defen- the unusual of Fernan involve nervousness dant acting nervous excited or awakening dez and startled and stiff merely acting whether he was in his nor- passenger demeanor Blanch. We have Rather, mal manner. appear- Defendant’s repeatedly held that is of nervousness limited Agent ance to is Ochoa more than significance in determining suspi reasonable an suspicion “inchoate or hunch”.... government’s repetitive that cion and (citations omitted). on the reliance nervousness either passenger driver or as a reasonable basis In making suspicion its reasonable deter- “in suspicion all this kind must cases of below, mination we think the lower court with caution. common treated It is knowl recognize important failed distinction citizens, aliens, edge especially that most and this case our other between and cases in this guilty, innocent or confronted specifically, a defining area. More charac- by a who law enforcement officer asks them stop jurisprudence of our teristic traffic potentially incriminating questions likely a registration, the defendant’s lack of valid signs to exhibit some of nervousness.” Unit license, sale, bill of some other indicia of Millan-Diaz, 720, v. ed States 975 F.2d 722 proof lawfully operate possess and (10th Cir.1992); see also United States v. question, giving objec- in thus rise to (10th Peters, Cir.1993) 1517, 10 F.3d 1521 tively suspicion reasonable the vehicle (“ person’s a may While nervous See, Soto, behavior be may e.g., be stolen. 988 F.2d at relevant, objective wary suspi (car we are registration allegedly in 1556 uncle’s by supplied generic cion that a claims Defen completely name and defendant failed to re- dant nervous or address); was exhibited nervous be spond when asked uncle’s being Horn, 728, havior after confronted law enforce 970 United States v. F.2d 732 officials....’”) (10th Cir.1992) (unnotarized (quoting ment United States bill of sale writ- (10th Hall, 616, 978 n. 4 v. F.2d 621 on back envelope Cir. ten title in different 1992)); Walker, 817; Guzman, name); Turner, 933 F.2d person’s United States v. 928 contributing pursuit. recognized travel as a form of factor to reason- It well suspicion. Report able at 20 n. 6. flight police defendant’s from intentional may guilt. be used as circumstantial evidence of heavily We think lower court relied too on Slater, 626, See 4 United States v. 971 F.2d 636 n. suspicion 'Walravenin reasonable below. (10th Furthermore, Cir.1992). unlike Bushnell’s distinguishable Walraven from instant case vague something sense that was afoot in the pull in that defendants in Walraven failed to over case, present reasonably in Walraven officer promptly when the officer activated overhead suspected drug defendants detained lights They and siren. also conferred with one couriers. at 974. 892 F.2d actively another observed the

880 — denied, (10th Cir.), never held that itself creates reason cert. 956, 959 F.2d 230, suspicion activity. of criminal -, 116 L.Ed.2d 187 able case, (ear provided Bushnell (1991) registered instant to defendant Pena, registration, both in v. with a valid license 920 F.2d States passenger); United Cir.1990) (no (10th At no time did Bushnell registration or his own name. 1509, 1514 car), attempt justify the continued detention of operate cert. driver entitled proof objective 2802, 1207, specific, on denied, 111 115 Fernandez based S.Ct. 501 U.S. Arango, inference (1991); supporting factors reasonable 975 L.Ed.2d stolen, Cir.1990) (no 441, (10th the defendant that the truck was credible F.2d drugs, trafficking in or that lawfully possessed was proof defendant denied, committing any Cf., offense. truck), other criminal cert. Corral, (1991); e.g., v. United States United States (10th Cir.1990) (10th Cir.1989) place Rivera, 1261, 1264 (spare tire out (defendant ownership pa bulge tire well basis of reasonable produce unable to Stone, Gonzalez, suspicion); F.2d pers); United States (10th Cir.1989) Cir.1985) (driver (officer’s smell of licensed smell York, plates patchouli oil often used to mask driving car with New California owner, marijuana suspicion car registered basis reasonable to California contraband). title); v. Obre car carried rying unsigned (10th Cir.1984) (car gon, 748 examining totality of the circum- After name, driver not listed as rented another’s stances, was insufficient we conclude there driver, pro and driver unable authorized case to establish reasonable evidence lessee); contacting Guz means of vide cf. justifying the continued detention (no man, suspi 864 F.2d at 1519 testimony regard- of Fernandez. Bushnell’s proper received license cion where officer sense,” ing his “sixth his detection of “ten- car not sto registration and confirmed air,” something and his belief that sion len). “afoot,” suggests strongly acting he was than appear unparticularized more on an hunch also While nervousness objective cases, suspicion.5 reasonable and many factor in traffic it, testimony showing you it a tension replete with want to call but is almost 5. The record is subjective, unpartic- I air. can think Bushnell acted based on his You tension feel know, officers, something wrong. keeps you ularized that that is what hunch They safety keeps can asked describe encounter safe or them alive. feel When "Definitely suspects, tension in Bushnell stated: that there. tension air, they way perceived your experience? Q that is that knew I Is based on this something Aplt.App. Yes, at 24. Re- I know.” didn't A sir. ferring to the of Fernandez and training you Q nervous reaction on have re- And based Blanch, Bushnell stated: ceived? No, you pick up My experience A don't think can train has shown that when someone I part type displays those on that. is nervousness ten- acts and mannerisms That before[,] something sion in the air. there is afoot that I said I added). (emphasis something Aplt.App. perceived they know, I at 23-24 know that don't something point government one asked Bushnell: them ner- At there is officer, obligation [by you Q States] have idea an United Did vous and also as an I feel you pursue specifically suspicious responsibility what were about or whatever mak- ing worried them about? nervous. No, [by Bushnell] A like to have Aplt.App. at would why myself. That is I was curious passage to tell known enough In one Bushnell asked stops it. know whether about to check into I don't Court what notices traffic that wanted[,] they they just had inquiry result in criminal or sometimes were further they something could done that be for other than traffic violations: feel arrest crimes for, they just gas caught maybe [byQ stole some States] the Court what United Tell definitely They might nervous about whatever. that be? fail, something. [by Generally Bushnell] A without added). there, Aplt.App. (emphasis exceptions, thing but the first at 32 there nerves, Finally, they always asked cross-examination exhibit that I will notice is gave specifically him concern about what these nervous mannerisms. There almost know, can, responded: safety you you Bushnell sixth sense whatever (10th 973, Lyons, F.3d adequate States v. counted as an United basis for reasonable Cir.1993) (holding stop pretextual where offi- suspicion.6 relied on “sixth sense” driver was cer above, For the reasons set out we hold

impaired noting merely such reliance “is Bushnell did have a suffi- that something the manifestation of a hunch objective particularized cient sup- basis afoot”). foul is porting suspicions, his continued of the lower court’s detention of Fernandez therefore violated the below, points to the dissent two factors that Fourth Amendment. particularly unconvincing we find under the First, of this circumstances case. dissent C. suggests thought that Bushnell’s initial A preceded by search a Fourth might driving under the influ- Amendment violation remains valid if the justified ence somehow his continued deten- voluntary consent search was in fact under though tion. Even been totality Guzman, of the circumstances. suspicious possibility initially, of this howev- 1520; Ward, F.2d at see also F.2d at er, he testified that was not one of the government 1534. The bears the burden of actually stopped reasons he Fernandez. proving consent, voluntariness Moreover, Aplt.App. at 56. after he made Bustamonte, Schneckloth initial Bushnell “administered no sobriety tests; request roadside did not (1973), and that burden is heavier when con blood, breath, defendant submit to or urine given illegal sent is after an stop, United tests; driving and issued no citation while Recalde, States impaired.” Lyons, Indeed, at 975. Cir.1985); Deases, see also anything indicating the record is devoid of (10th Cir.1990) (“Hav n. 1 after their initial encounter ing concluded that the initial Deases’ thought impaired Fernandez was or that he lawful, government car was does not have question continued to detain and the ‘heavier burden’ in connection with if impaired. to determine he was This factor consent issue which it would have if totally any analysis. is therefore irrelevant — denied, Second, unlawful.”), initial cert. points the dissent to Bushnell’s con- U.S. -, safety justification for his 115 L.Ed.2d cern as a for Fer- government nandez’s continued must detention. As the record establish that quite clearly however, reveals supra “sufficiently n. Fernandez’s consent to search is safety act of purge primary Bushnell’s stem from free will to concerns taint subjective hunch, air,” illegal [seizure], “tension in same sup must be [or] already pressed and nervousness that poisonous we dis- as fruit of the tree.”7 Mimms, 106, 110, [by always, 330, A Bushnell] I'm when someone v. vania 434 U.S. 98 S.Ct. gets 333, always nervous me (1977), like that around I’m investigative but an my being jeopardized, safety concerned for sir. supported by detention must nonetheless be rea [byQ Fernandez] counsel for This Furthermore, nervous- suspicion. contrary sonable to the you ness that talked about? suggestion, holding today dissent’s our does Yes, sir, A: the air tension in and capacity stuff. to diminish the of officers to added). Aplt.App. (emphasis at 56-57 safety deal their concerns. An officer While Bushnell's hunch turned out to be cor- here, always backup, call for did as Bushnell as rect, simply can not conclude from his testi- long suspect as the officer detain a does not mony "specific that he acted basis of on the addition, suspicion. without reasonable In if an required by Terry reasonable inferences” as v. lacking officer wishes to Ohio, 1, 1868, 392 U.S. 88 20 S.Ct. L.Ed.2d 889 safety by detaining address his a sus concerns pect questioning guns drugs, and about he may attempt to do so aon consensual basis. See dangers police 6. The dissent notes the officers Soto, 988 F.2d at 1557. duty suggests face the course of their and safety that Bushnell’s his concerns for somehow justified questioning 7. The district court continued detention and concluded Fernandez’s drugs. guns voluntary. of Fernandez about We are consent was it found Because face, cognizant very dangers of the continued real detention of Fernandez was law- including however, stops, Pennsyl fully suspicion, when traffic see based on reasonable 882 See, Ward, Maez, 1444, e.g., at ation. 1533 v. 1453 States

United (10th Cir.1989); (informing an individual of his constitutional also United States v. see (10th 448, Cir.1993); Lowe, rights, particularly Fourth Amendment F.2d 451 999 Mendoza-Salgado, rights, important 964 it shows the v. F.2d because (10th Cir.1992); Ward, 993, 1011 police prepared 961 at individual that to Walker, 1534; respect rights); 933 F.2d at 817. When exam of those Re his assertion circumstances, (consent calde, totality no ining lacking F.2d at 1459 761 dispositive but three factors are single told was free to fact where defendant never he proximi significant: temporal ticket, “the especially holding li leave driver’s consent, any illegal stop cense, ty registration); circumstances, purpose intervening Cir.1985) and the Gonzalez, 1127, 1133 763 (consent official] misconduct.” flagrancy [the illegal fruit of where offi detention Guzman, (adopting F.2d at 1521 cer retained defendant’s documentation Illinois, v. from Brown these factors he to did not inform defendant was free leave 2261-62, 603-04, 95 S.Ct. form). U.S. Although him handing consent (1975)). L.Ed.2d informing right of his to defendant refuse prerequisite establishing consent not a no district court found that lan consent, Schneckloth, voluntary 412 U.S. at guage problem existed between it a at we consider factor S.Ct. Bushnell, and that Bushnell retained noting,”8 “particularly worth Florida Bos at documentation the time he Fernandez’s tick, 429, -, truck. requested consent to search the We (1991); see States findings, these factual do disturb Mendenhall, 544, 548-49, clearly Mendoza- are not erroneous. See (verbal (1980) 1873-75, 64 L.Ed.2d 497 Salgado, 964 F.2d at The record she advisement defendant could decline if Bushnell asked Fernandez shows that Ward, “especially significant”); consent mind if the officer searched the truck. would F.2d at 1533. replying verbally, Fernandez and his Without Examining opened Blanch doors of the the encounter between Bush- passenger light of get out. Bushnell then nell and Fernandez in the fact that truck and started Fernandez, you already extensively questioned “Do understand I Bushnell had said track?”, Fernandez,9 which Fernan that a had arrived want to search second officer understand, scene, go Aplt. replied, “I ahead.” on the that Bushnell Fernan- dez retained documentation, App. Although Bushnell retained Fer dez’s and that Fernandez was documentation, right neither Bushnell nor not informed of to refuse consent or nandez’s scene, Mangelson assisting trooper informed to leave the we do not consider their give exchange unambiguous that he could verbal that Fer- refuse so clearly voluntary free leave consent or he was nandez’s consent was scene, addition, important fact. factors our consider- the three “Brown factors” both perform analysis. (holding illegal taint A court remand F.2d at 1455-56 taint of did unnecessary proceed purged even issue is because the actions not defendant where " ings amply signed 'resulted in record of suffi consent-to-search form after below Miranda depth warnings cient from which the determina and both written and notice of detail oral ” Guzman, refuse); Gonzalez, right may made.' 864 F.2d at at tion Illinois, 590, (quoting (holding n. 10 Brown v. consent obtained from consent-to- 2254, 2262, Recalde, 604, (1975); detention); illegal form fruit search of Lowe, (taint purged by see 999 F.2d 451 n. 5 761 F.2d at United States 1452-59 Mi- (10th Cir.1993); right Mendoza-Salga warning randa of written notification do, (10th Cir.1992); refuse). 964 F.2d Ward, n. 7 Maez, Cir.1992); United States v. totality examining the circum "When (10th Cir.1989). 1454 n. 13 in fact consent stances to determine 'if coerced, taken search was account must be subtly police questions.." 8. The that a of his coercive fact defendant informed (quoting rights necessarily Mendoza-Salgado, Schneckloth, mean 964 F.2d at 1011 n. 9 constitutional does not Maez, 2049). voluntary his consent will be 412 U.S. at 93 S.Ct. at fact. place special Ward, emphasis on which we all indi see also 961 F.2d at By illegally by cate Fernandez’s consent was tainted detaining Fernandez, failing to return his First, prior unlawful seizure. documentation, failing to inform him of verbally acquiesced only to the search mo right both his to leave the scene and to illegal ques ments after the detention and consent, refuse Bushnell’s conduct was suffi- Ward, tioning by Bushnell. See 961 F.2d at ciently egregious that it tainted Fernandez’s (consent voluntary “only where min consent. seizure); Maez, passed illegal utes” after Law enforcement officials obey must (taint illegal F.2d at ar requirements of the Fourth Amendment purged rest not where signed consent form when performing their duties. place par We arrest); Recalde, thirty illegal minutes after emphasis ticular on the Fourth Amendment (no voluntary 761 F.2d at 1459 consent where “concern that evidence not be by obtained only elapsed “several minutes” between ille exploitation illegal police conduct.” Walk gal form); signing detention and of consent er, 933 F.2d at Accordingly, 817-18. we hold (con cf., Mendoza-Salgado, 964 F.2d at 1012 consent given alone, thirty forty-five sidered minute time “sufficiently was not Jree of duress and coer period illegal entry between and defendant’s cion so to remove the taint of illegal consent reveals little about defendant’s “deci Recalde, detention.” 761 F.2d at 1459. We search”); Brown, permit sion to see also therefore REVERSE the district court’s de 604-05, 422 U.S. at at 2262-63 nial of Fernandez’s motion suppress. (statement given less than two hours after tree). illegal poisonous arrest fruit of Sec REVERSED and REMANDED.

ond, absolutely intervening there were no illegal

circumstances between the detention BROWN, WESLEY E. Senior District and Fernandez’s consent. Both of these fac Judge, dissenting. suggest tors that there was no “break in the I respectfully dissent. I would find that causal illegality connection between the the defendant’s Fourth rights Amendment Recalde, thereby the evidence obtained.” violated, were not and I would affirm the 761 F.2d at 1458. district court. Finally, factor, analyzing the third Brown join I approach cannot by taken purpose flagrancy conclude majority in First, Section B for two reasons: weighs Bushnell’s conduct heavily also I think the fails to fully address against voluntary consent. factual findings magistrate made Bushnell testified that there was a “tension fails view the record in light most favor- air,” and that he something believed Second, able to findings. those I think the Aplt.App.

was “afoot.” 29. Bushnell majority erroneously discounts the factors felt Fernandez and “definitely Blanch were underlying the officer’s nervous,” yet he had no idea what safety. reasonable concern for his nervous about. Id. at 32. He stated with starting point Facts. The respect appellate to the nervous mannerisms he ob- review of ruling the district court’s must be served Fernandez and Blanch that: “I the facts as determined perceived they the finder of fact. something know that I don’t know, trooper’s Based on testimony, entire something there is making them ner- magistrate made officer, findings vous and extensive also as an of fact feel an obli- gation this case. He responsibility pursue found that whatever Thus, noticed that the them windows on the nervous.” at 29. defendant’s illegal very detention truck were quality trooper here “had a dark. The testified purposefulness” in that that the enough Bushnell continued to windows were dark that he solely detain Fernandez based on a could not see tension inside the truck. Bushnell vague the air and his hunch decided something that the vehicle for a window-tint afoot, was with hope something “the that trooper, violation. The who traveling was might Brown, up.” south, turn 422 U.S. at pursued turned around and the vehicle 2262; Recalde, 1459; S.Ct. at see 761 F.2d at which was northbound. The vehicle was fast, trooper sufficiently Bushnell his very and it took the was concerned about

traveling troop- safety backup. eight to overtake it. The that he called for Bushnell nine miles to confirm pulled alongside the vehicle check er also radioed for an NCIC on the vehi- too dark. he were When occupants, that the windows cle and but he did not receive so, “pulled [his] did the defendant reply. up warning wrote citation Bushnell emergency into the lane about two thirds Sergeant for the Mangelson, defendant. signaled trooper had not though even officer, backup in six to min- arrived seven lights. or turned on its pull vehicle to over arrived, Mangelson utes. When Bushnell re- veiy the conduct un- trooper The considered proceeded turned to the vehicle and to ask suspicious. trooper The usual and gun in if there was a Fernandez the vehicle. vehicle and then the defendants’ behind any illegal drugs. He also asked if there were up.” and sped traffic lane The reentered the When Fernandez stated neither of these trooper might the driver be under believed vehicle, present trooper items alcohol or other the influence of have some given asked for and was consent to search problem. lights turned his Bushnell for them. stopped for the window tint and the vehicle majority Investigative Detention. The operation. ap- improper lane trooper’s that the concludes decision to de- Fernandez, driver, proached defendant tain the defendant for a few for the minutes registra- for a driver’s license and asked purpose asking guns drugs about was purpose stop. tion told him the of the than trooper’s based on more The found that magistrate “[a]s unparticularized hunch of wrongdoing. produced license his driver’s his hand trem- portions concede troop- that selected unusually was nervous bled. Fernandez testimony suppression er’s hearing at the can driving which the erratic caused the with support trooper be used view. The trooper something was ‘afoot.’ to believe air,” feeling cited a of “tension in the why trooper asked Fernandez When the sense,” “something “sixth and his belief nervous, trooper was did not receive a so explanations partial was afoot” as for his satisfactory explanation.” trooper The testi- Clearly, testimony by conduct. such itself fied that he discussed the defendant specific would not constitute and articulable driving was whether the defendant under justify facts sufficient to are detention. We questioned and also the defendant influence required evidence, to look at all of the howev- why off the as to he drove road er, to if facts determine warranted a that he did. manner suspecting officer in that criminal magistrate determined that The activity in believing was afoot or that his threatening pres- does not have safety danger. Moreover, inwas ence, build, height of modest that he is required uphold suppression if ruling put that he tried ease there is reasonable view the evidence magistrate stop. The indicated Neu, it. States See United nervousness not abate” Fernandez’s “did Cir.1989). “excessive,” and that during the objective justi- Given the “minimal level of Additionally, “this unusual.” Mr. required fication” that is for a brief detention Blanch, asleep when who was Bushnell first here, the type Delgado, at issue see INS v. driver, approached appeared awoke and L.Ed.2d 247 seeing Blanch startled Bushnell. (1984), as well as our deferential review popped up rigidly. in the seat and sat He magistrate, the facts found I have erectly throughout the en- continued to sit approach some trouble with the taken His reaction was unusual. The counter. majority opinion. magistrate The discounts “Trooper found that Bushnell was significance of Mr. very Fernandez’s erratic suspicious and concerned his own about driving safety.” by stating sufficiently it “was Bushnell testified that under the only warning minor to warrant citation.” the fact that were two circumstances there trooper warning him adults in truck caused concern Whether or not the issued a some point. The safety. magistrate point citation is that noted is beside provided specific indication something conduct of more defendant’s serious than a to a of factual basis contributed only by minor traffic substituting infraction” suspicion and reasonable con- judgment its for that of an officer who has safety. cern for officer’s The defendant’s made stops thousands of traffic and whose officer, conduct was considered who testimony indicated that the defendant’s ac- stops, has made thousands of traffic to be very tions were unusual and caused him con- Under circum- unusual and erratic. safety. majori- cern for In my view the stances, trooper reasonably attached ty’s approach is inconsistent with the Su- degree suspicion certain of to the defendant’s preme view suspi- Court’s of the reasonable majority actions. The from confident its analysis: cion reading typed transcript of a that the defen- process does not deal with hard cer- innocuous, explaining dant’s actions were tainties, probabilities. Long but with be- highly plausible that “it is that Fernandez probabilities fore the law was articulated thought being pulled he over” and such, practical as people formulated cer- might “an well innocent cautious driver be- tain common-sense conclusions about hu- pulls along lieve an officer who beside him on behavior; jurors man as factfinders are stays highway looking there at him permitted do the same —and so are law pull intends him to over.” for Whether or enforcement officers. [T]he evidence thus interpretation speculative not this of the rec- weighed collected must be seen and not in true,1 clearly ord in either ease it is not library by scholars, terms analysis but dispositive. always possible It is to construct as understood versed in those the field explanation an innocent for what can also be of law enforcement. interpreted reasonably as behavior indicative Ohio, activity. Terry supra criminal v. Cf. Cortez, 411, 418, United States 449 U.S. (Three street, walking up men and down a S.Ct. window). Moreover, looking in a store such in legitimately The officer case speculation mark misses the because what concerned about the may reason the defen- may the driver not think- have been driving. dant’s erratic ing proper point purposes is not the focal Cf. Brignoni-Ponce, of the Fourth Amendment. (1975) (In 2582, 45 L.Ed.2d 607 deter- question The central is whether the officer mining there is reasonable

reasonably any suspicion attached to the de- aliens, illegal to believe that a car contains majority’s fendant’s actions. The dismissal relevant, may “[t]he driver’s behavior driving the erratic as a factor attempts driving erratic obvious evade significance seems to me to substitute this suspicion.”) officers can a reasonable judgment court’s for that of the officer testimony The officer’s indicated that based upon quick field—who was called amake driver’s actions he believed that the training experi- decision based driver have been under the influence of Sharpe, ence. See problem.2 alcohol or some had other He was (1985) (the why concerned as to the defendant acted court “should take care to consider sight such manner the mere offi- acting swiftly whether the in a majority correctly situation, us light of sense tells about dispel the officer’s concerns or what common served behavior, ac- human the excessive nervousness for the defendant’s explain the reason rationally contrary, in this case can be viewed Mr. Fernandez’s shown To the tions. activity. only possible of criminal as indication passenger’s excessive nervousness the Sharpe, legitimate United States v. concerns. the officer’s increased Cf. 1575, 84 105 S.Ct. may majority also undertakes what The (1985) (“[C]ommon ordinary hu sense discounting systematic a be as best described govern rigid experience man must over crite of the nervous behavior significance the of ria.”). passen- by the the defendant and exhibited noting majority reli finds the district court’s in course of this traffic ger the troubling by upon particularly that itself ance nervousness [ner- have never held that “we suspicion of contains no that a reasonable because record evidence creates vousness] token, By any prior knowledge “had of Fer activity.” the same we Bushnell criminal be nandez Blanch to make an of held that nervousness cannot evaluation have never discounting of suspicion. a their behavior.” This what reasonable sufficient observed, view, Rather, significance my in particular of the be- the officer inconsis ordinary from the with the maxim that human havior at issue must be determined tent case-by- experience govern rigid a over criteria. totality the circumstances on of Sharpe, supra. If such a circumstance See case basis. prevent upon ner were sufficient to reliance majority’s approach disagree I only rarely then if vousness it would ever findings by made I think the because Yet, appropriate to consider such behavior. testimony magistrate were based on of many upon signs of our decisions have relied specific during stop. exhibited behavior supporting of nervousness as reasonable sus contributes, at least some That behavior picion despite fact if all that most suspi- degree, toward a reasonable detaining cases no of these officer had (and it is un- cion. The asserts knowledge prior suspect’s mannerisms. true) citizens, doubtedly that most Soto, e.g., United States v. 988 F.2d 1548 guilty, signs of innocent or will exhibit some Cir.1993) (the ap defendant’s nervous by confronted en- nervousness when law pearance suspi contributed to agree officer. For that reason forcement Bell, officer); cions of the conclusory appropriate that view testi- (10th Cir.1989) (defendant mony was “nervous” with defendant nervous”); “visibly became caution, degree of the officer certain lest (10th Cir.1989) Walraven, suspicious circumstances characterize mannerisms”). (defendant’s “nervous These very large category presumably describe experi cases reflect what common sense and Georgia, Reid innocent travelers. See a person ence tell us about human nature: 438, 441, 2752, 2754, 65 U.S. signs who exhibits unusual and excessive (1980). con- L.Ed.2d 890 The unmistakable by a nervousness when confronted law en however, magistrate, clusion of in criminal forcement officer be involved exhibited the nervousness driver activity. un- passenger in this case was excessive beyond assessing validity In der circumstances and went what the detention case, people normally totality traffic this show routine must consider “the picture.” stop. That conclusion was based circumstances —the whole Cortez, 411, 417, testimony specific officer’s described —which fairly be considered as behavior could Thus, significance as- nervousness. defendant’s excessive passenger’s the officer took into account the nervousness must be as- sessment that, experience making light driving approx- fact sessed in of the erratic exhibited imately stops, completely five thousand traffic he had earlier the defendant —not as together, I think many persons signs anger separate seen factors. Taken show justi- slight pointed specific the officer facts nervousness. When viewed activity inference that criminal the two in appeared fied rational men the car talk- be ing and of one them looked was afoot. The circumstances here involved back at the deputy. finally acts, After the car stopped, the perhaps them inno- “series of each of inquiry officer conducted an and determined separately, cent” if viewed “but which taken that the had a driver valid license car and the together investigation.” warranted further appropriately registered was to the defen- Terry, U.S. at at 1881. I dant. The officer nevertheless detained the legitimate the also think officer’s concerns defendant for two or three minutes until a safety him his made it reasonable for backup proceeded officer arrived and then (for briefly detain the defendant six or seven any guns ask whether there drugs were or most) backup minutes at until arrived and in were the car and could search any guns then to whether there ask were or for those items. upon Based the failure to Williams, drugs in the car. Adams v. See car, promptly stop the the nervous manner- 143, 146, 92 S.Ct. car, isms of the men in the and the officer’s (1972) (“A brief L.Ed.2d 612 indi- experience, law enforcement we concluded vidual, quo in order to maintain the status that the objectively officer had an reasonable momentarily obtaining while more informa- suspicion activity of criminal legitimate or a tion, may light most in reasonable the safety concern for his sufficient to warrant time.”) at facts known to the officer the This this brief detention.3 We noted that the particularly light dangers in true only “sought officer to maintain the status in police officers face traffic momentarily quo questioning before men the Mimms, stops. Pennsylvania v. See presence in the backup [a officer].” Id. at 976. We also observed that the fact that the The relied district court officer waited few backup minutes his Walraven, 892 F.2d 972 Cir. to arrive “was more than reasonable 1989), for the conclusion the police procedure.” Finally, Id. we conclud- in this seizure case was reasonable. That request ed the officer was entitled to Walraven, appropriate. reliance In was permission to search the guns vehicle for deputy erroneously illegal sheriff was informed that drugs. Id. plate in license a car which the defen majority distinguishes The ease instant traveling dant was did with another man by from stating Walraven the defen- deputy match vehicle. on The turned pull dants Walraven over “failed gave

flashing lights and from twice blasts promptly when officer activated his over- pull siren but the vehicle failed over. The lights Maj.Op. head and siren.” at n. 4.4 approximately car mile accurate, traveled and a hardly that statement it While over, pulling during explains half why investigative before which time detention opinion explicitly 3. investigative The Walraven does not state 975-76. An detention was warrant- justified by legiti- whether the detention was offi- ed in Walraven because the officer was mately cer's why reasonable belief that men were com- concerned with the reason the men mitting "perceived a crime pull immediately the officer's why failed to over well-being.” threat conferring to his own at were con- each other. Similar implicated cerns were case the defen- majority In a footnote the contends that Walra- driving dant's erratic and his nervous behavior. distinguishable by ven is other facts as well. The trooper legitimately The was concerned with the majority suspects states that in Walraven why reason the defendant drove over into actively “conferred with one another and ob- emergency trooper lane he saw police pursuit” served the officer sped up pulled highway then onto the back flight the court notes that such intentional trooper when the in behind him. guilt.” point "circumstantial evidence This only majority underscores the the de- reasonableness of also states that the officer in Walraven, "reasonably suspected tention in the instant case. In al- Walraven that the defen- couriers," though drug pointing specifically Maj.Op. there no facts dants were n. car, presence drugs although majority explain why to the the defendants’ does not we found that the defendants' failure reasonable for the officer in Walraven to case, (together suspicion. with their nervous and the mannerisms have such a As in instant experience) gave pointing specifi- officer's law enforcement rise there were no facts in Walraven cally presence to a drugs that the defendants defendants’ activity. Additionally, were involved in criminal id. at car. fails to mention stopped investigative that a reasonable officer would have justified but Walraven Maj.Op. Fourth truck. at 877. case violated the defendant’s in this detention material distinction I see no Amendment. Guzman, confronting the officer the situation between (10th Cir.1988), this court indicated that confronting the one in this case “arbitrary action” associated with “unfet- in Walraven.5 stop” whom to tered discretion as to sum, find that the officer’s brief I would “is within In for traffic violations unreasonable of purpose meaning defendant for the the of the Fourth Amendment.” Id. detention illegal there were firearms or expressed asking whether at 1516. The court concern that I would justification was reasonable and legal in the car drugs could use some to officers court. investigate affirm the district stop person in order unrelat- a to ed The court therefore criminal matters. Stops. A—Pretext Section adopted determining for a standard whether majority’s holding ultimate in Section The and, “pretextual” stop consequently, a is un- to expressly decline decide” the A “we that “a court constitutional: should ask ‘not argument stop would seem to pretextual validly the whether officer could have made unnecessary. of pretext discussion make but under the cir- same However, majority’s analysis of the evi- a cumstances reasonable officer would have its conclusion that there is consid- dence and stop of in the absence the invalid made “suggesting stop this that erable evidence ”6 origi- purpose.’ (emphasis at 1517 in Id. appears me may pretextual” been to to nal). emphasized The court that this stan- expansive pretext of on an view the be based inquire dard did not into the actual state of Supreme Court that is at odds with doctrine stop mind of the officer but Moreover, the of an precedent. inclusion “properly preserves Supreme Court’s re- pretext sug- of issue discussion extended quirement objective inquiry of an into Fourth in it some role the resolu- gests played that activity.” Amendment view, my magis- In tion this case. of finding pretex- frankly I I stop that this was not must confess that have some trate’s by difficulty understanding sup- supported In how a court is tual evidence. is Deases, posed “a to determine whether Cir.1990), stop partic- a a we held a district court’s find- officer would have” made pretextual ular “in the of ing stop a cannot be violation absence the invalid clearly purpose.”7 Up is to until I unless found be now had least reversed proposi- to light In of this standard re- understood Guzman stand erroneous. majority stop supported by proba- is peculiar that the feels tion that a which view it seems to and to com- ble and which is based on some viola- compelled assess evidence cause foregone police “it not a conclusion” tion that have enforced with at ment that thus nervous man- Walraven shows that the court understood that in Walraven defendants' upon by perfectly this well were relied court the nature of the issue before it. nerisms suspicion. finding a of reasonable The explain why the nervous mannerisms of does not adopted 6. This standard was from United States supported in Walraven a reason- the defendants Smith, (11th Cir.1986), a case drug the defendants were able stop which the officer who made a did not have sig- but behavior is "limited couriers similar probable cause to believe that a traffic violation in this case. nificance” had been committed. See id. at 708-09. majority's district court 5.The intimation involving suggests may cases inval- that an officer somehow confused Common sense large puzzling. Maj.Op. at registrations id See 879- observe number of traffic violations given appears day and must make a choice as to which 80. No such confusion district fact, stop. stop opinion. ones the district court's reli- violators which court's suggests Any including legitimate poli- upon v. Walraven number of ance factors— cy exactly opposite. primary issue ad- influence an officer's considerations —could particular stop. are court Walraven was whether decision to make a How dressed this legal to determine when a reasonable officer "would there was basis for the defendant’s contin- pursuing trooper the lesser detention have been uninterested in ued confirmed after hope greater registration was valid. Id. at offense" absent a of- defendant’s particular The district reliance on fense? court's regularity would not be set least modicum doctrine forth in Guzman. Examination (“If id. at pretextual. pretext” of such actuality considered “evidence of is in required nothing in New inquiry Mexico more than an into routinely subjective stop cars Bushnell’s state of do most see mind when he and/or stop made the wearing in which the is not decision to driver his seat defendant in belt, this stop unconstitutionally Labeling case.9 then this was not the statistics relied “objective form Conversely, rarely this conclusion pretextual.... if officers subjective evidence” does stop alter the seat-belt violators absent some other inquiry. nature ap- this stop the car ... believe [the reason would proach Supreme conflicts with the pretextual].”) apparently Such Court’s not the stated ease, analysis: view Fourth however, Amendment given majority’s that the “evi- suggesting Whether a Fourth dence have been Amendment violation has pretextual” primarily objective occurred “turns on an consists statistics assess- ment the showing Trooper light officer’s action in Bushnell and other the warnings confronting unit facts and circumstances him regularly members of his issue at time,” the [cite omitted] and not on type or citations for violations of the at the issue actual officer’s state mind the at time in ease. record indicates that this challenged the action was taken. particular unit issued a total of 172 citations warnings improperly tinted windows Macon, 463, Maryland 470, v. 472 U.S. 105 period for the five-month Al- (1985). 11/91. 7/91 S.Ct. See though specific majority the inference the also Villamonte-Marquez, United States v. unstated, from these divines statistics is “evi- 579, 2573, 3, 103 462 U.S. 584 n. S.Ct. 2577 n. arises, it, pretext” dence of as I understand (the 3, (1983) 77 22 L.Ed.2d fact that customs Trooper from the fact that Bushnell has is- boarding ship pursuant officers to statute “significantly warnings sued more” authorizing a the check of vessel’s documen period this five-month than have his fellow suspected tation that the vessel carried mari officers.8 juana not a violation of the Fourth Amendment).

If require the Guzman standard us would stop view in recently the this case as unconstitu- The Sixth Circuit abandoned the simply joined tional because statistics show that this Guzman test and those circuits hold- particular trooper warnings ing has long probable issued more that so as the officer has sug- troopers, respectfully than other then I cause to believe that traffic violation has occurred, gest may it pretext resulting stop be time re-examine the the is not unlawful Apparently amplify 8. order to the Maj. differences under the See officer same circumstances." troopers Op. specific Although between the other at reason for the out, unit, majority majority’s disapproval spelled in his is not the fact focuses the number trooper warnings pursued around previously disregards turned issued and eight ap- defendant's truck for or nine by troop- miles number of formal citations issued contrary majority’s parently proper recently to the view rejected approach ers. We such an procedure. law enforcement It not clear appellant: when was asserted an majority considered fact whether that it Defendant insists the officers' own tes- trooper took nine miles overtake truck timony, normally the Denver do not speed of the because rate of which defen- pres- issue written tickets in the circumstances traveling. dant was ent here. But whether the would nor- mally issue formal written tickets for such con- lines, Along these same I am as to the unclear pertinent duct is immaterial. The issue import majority opinion, of footnote two whether a reasonable officer would have made especially interesting "we comment find it conduct, stop for similar recall Bushnell could not Fernandez's re- would issued a formal citation sponse why when Bushnell asked into merely warning. an informal emergency I do lane.” not understand the Harris, 1004, Moreover, 995 F.2d 1005 of this relevance observation. ten- (10th 1993). Cir. suggests or of the remark that this court is en- Also, appraisal finding in addition to its gaging concerning various a factual Bushnell's statistics, credibility appears describes the manner be at odds —a which made the traffic in this case with the fact in this conclusions of finder of question suppos- and states: “We whether such a which at odds case and is also with the edly objective pretext inquiry. would be 'business as usual' for a nature of

890 Fourth Amendment. violate the and does (6th 8 Ferguson, F.3d 385 v. States United (en banc). Cir.1993) also United States (3rd 210, Cir.), Hawkins, cert.

v. 110, 833, denied, S.Ct. Rusher, (1987); United States — (4th Cir.), denied, 868, 876 cert. 351, -, 121 L.Ed.2d 113 S.Ct.

U.S. Causey, 834 F.2d (1992); Cir.1987) (en banc); (5th United (7th Trigg, 925 F.2d

States v. — U.S. -, denied, Cir.), cert. (1991); 116 L.Ed.2d Cummins, 498, 501 — denied, -, Cir.1990), cert. so 116 L.Ed.2d opined Circuit that Guzman’s

doing the Sixth “objective general evidence” of on the

focus reality “simply aggre

police practice is subjective

gation of the intentions of regions.” majority’s Given the case, I record would

evaluation of the agree that the Guzman test

be inclined to inquiry into the officer’s sub

has become

jective mind and is inconsistent with state of interpretation Supreme Court’s I see

Fourth Amendment. justify a conclusion

record would the traffic of the defendant for was an unreasonable he committed

violations affirm district court.

seizure. would MEREDITH, E. Plaintiff-

Janis

Appellant, CORPORATION, AIRCRAFT

BEECH

Defendant-Appellee. Employment Opportunity

Equal

Commission, Amicus

Curiae.

No. 92-3288. Appeals,

United States Court

Tenth Circuit.

March cer. The notes Fer- developing such eases the appear nandez did not under influ- engage court should sec- unrealistic Thus, ond-guessing.”) majority able ence alcohol when Bushnell talked him. “[tjhis majority declare that is not a What the is that case where a fails add objective defendant’s evasive ... is an action that occurred course of thought stopped trooper If Mr. officer intended Fernandez.” The testified that over, pull why for him to did Mr. Fernandez improper he made the lane because of speed pull up and back onto the road change and the tinted windows. He did in behind him? testify, majority's might suggest, as the statement that he was unconcerned with reason for 2. The states that Bushnell testified that driving. defendant’s erratic actually "this one was not of the reasons he

Case Details

Case Name: United States v. Edelmiro Augustin Fernandez

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Mar 11, 1994

Citation: 18 F.3d 874

Docket Number: 93-4011

Court Abbreviation: 10th Cir.