UNITED STATES OF AMERICA, Plaintiff, v. ANTOINE DWAYNE FRAZIER, Defendant.
Case No. 4:19-cr-00141-DN-PK
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
June 13, 2020
District Judge David Nuffer
MEMORANDUM DECISION AND ORDER DENYING MOTION TO SUPPRESS
However, because (1) Trooper Gibbs had reasonable suspicion to stop Frazier‘s vehicle for several observed traffic violations; (2) the detention of Frazier did not exceed that which is legally authorized under the circumstances; and (3) Trooper Gibbs had probable cause to search Frazier‘s vehicle based upon a trained canine‘s alert, the Motion is DENIED.
The excellent work by counsel in the hearing and in submissions are greatly appreciated, and have eliminated the need for oral argument.
FINDINGS OF FACT............................................................................................ 3
CONCLUSIONS OF LAW ................................................................................. 18
- The Traffic Stop Was Justified from Its Inception. ................................. 18
- Standard of Review. ....................................................................... 18
- Trooper Gibbs Had Reasonable Suspicion to Stop the Vehicle After Observing Several Traffic Violations. ............................................ 19
- The Scope and Duration of the Traffic Stop was Reasonably Related to the Circumstances Justifying the Stop. ......................................................... 21
- Trooper Gibbs Diligently Pursued the Tasks Reasonably Associated with the Traffic Stop. .............................................................................. 23
- While Diligently Pursuing the Tasks Associated with the Traffic Stop, Trooper Gibbs Developed Reasonable Suspicion that Frazier was Involved in Other Criminal Activity. ............................................. 26
- Probable Cause Existed to Search Frazier‘s Vehicle. .............................. 35
ORDER................................................................................................................. 37
PROCEDURAL HISTORY
On December 19, 2019, Defendant was charged by Indictment with Possession of Fentanyl with Intent to Distribute, Possession of Cocaine with Intent to Distribute, and Possession of a Firearm in Furtherance of a Drug Trafficking Crime.3 Defendant filed the Motion on January 28, 2020.4 An evidentiary hearing was held on March 4, 2020.5 Based on the Motion, the government‘s submission after the hearing,6 the defense submission thereafter,7 and the facts presented at the evidentiary hearing, the court enters the following findings of fact:
Background on Trooper Gibbs
Trooper Gibbs has been a Utah Highway Patrol Trooper since 2012.8 Trooper Gibbs has received specialized interdiction training, including a three-day national training in 2016 and numerous other specialized workshops.9 Trooper Gibbs’ primary responsibility is traffic enforcement in Iron County, but he is a member of an interdiction team specializing in enforcement and interdiction projects in other areas.10 Trooper Gibbs described interdiction work as attempting to find major crimes on the highway.11 Trooper Gibbs is trained to look for reactions to his presence, along with different indicators and small differences when conducting traffic stops, which may not be apparent to someone who lacks his training and experience.12 Trooper Gibbs averages approximately 1,000 traffic stops a year for the Utah Highway Patrol, and spends most of his shift patrolling Interstate 15.13 Trooper Gibbs’ training and experience has taught him that drugs typically flow north and east from the southwest area of the United States, and then money works its way south and west.14 Because a traffic stop is a high-risk encounter, Trooper Gibbs is trained to look for small details to not only look for criminal activity but to also ensure his safety.15
Trooper Gibbs was on duty on November 12, 2019, at approximately 9:00 a.m., sitting stationary in his patrol vehicle at approximately mile marker 63 on Interstate 15 in Iron County, parked in the median watching northbound traffic.16 Trooper Gibbs was talking on the phone17 when he observed a white sport utility vehicle with Kansas license plates pass his location traveling northbound which appeared to be exceeding the speed limit, visually estimating the vehicle to be traveling at approximately 85 miles per hour.18 The speed limit at that section of Interstate 15 is 80 miles per hour, and that speed limit is posted about a quarter mile prior to where Trooper Gibbs was parked in the median.19 He also was able to observe that the driver was African American and the vehicle had an out-of-state license plate.20 Trooper Gibbs pulled out onto the highway to follow the vehicle, directly behind it in the right lane, and he paced the vehicle traveling at approximately 85 miles per hour.21 As he followed, Trooper Gibbs also had a radar confirmation that the vehicle was traveling at 85 miles per hour.22 The speed that he was traveling as he paced the vehicle for approximately two miles is also captured on Trooper Gibbs’ dash camera, which showed that his speed of travel stayed between 84 and 88 miles per hour.23
The Stop
After observing the two signal violations while the vehicle was still speeding, Trooper Gibbs ran a records check on the license plate to verify that the vehicle was not stolen, informed dispatch of the impending traffic stop, pulled behind the vehicle and turned on his overhead emergency lights to conduct a traffic stop at approximately 9:06 a.m.31 Prior to making the stop, the trooper was informed that the vehicle was not stolen.32 The driver of the vehicle promptly
Trooper Gibbs made contact with the driver from the front passenger side of the vehicle, but the driver only rolled down the window approximately three to four inches.40 When Trooper Gibbs asked the driver to roll the window down further, the driver rolled it down an inch further.41 The driver was the only occupant of the vehicle.42 Trooper Gibbs observed there was a small container of air freshener or scent deodorizer in the center console.43 He could not smell
Trooper Gibbs began to communicate with the driver, and asked for his driver‘s license.47 The driver handed Trooper Gibbs an Iowa driver‘s license, and Trooper Gibbs observed that there was what appeared to be a Missouri driver‘s license in his wallet.48 When Trooper Gibbs asked about that, the driver showed him that it was a Missouri identification card.49 The name, date of birth and other identifying information were the same on both documents.50 The presence of the two pieces of identification did not raise any suspicion with the trooper.51 The driver was identified at that time as Antoine Dwayne Frazier, the defendant.
Trooper Gibbs told Frazier he had been stopped for traveling 5 miles per hour over the speed limit and for failing to signal for a full two seconds before changing lanes.52 Upon learning that, Frazier appeared to look frustrated.53 After he had received Frazier‘s driver‘s license,
While Frazier was looking for the rental agreement, Trooper Gibbs looked around the vehicle, and saw a bottle on the front seat that looked like a beer bottle.58 Frazier handed it to Trooper Gibbs, telling him that it was ginger beer with no alcohol in it, which Trooper Gibbs confirmed.59 While Frazier continued to look for the rental agreement, Trooper Gibbs looked in the cargo area and back seat again, and confirmed that there were two bags in the cargo area.60 Trooper Gibbs again observed a deodorizer in the center console, but could not smell it.61 In his experience, Trooper Gibbs has found there to be air fresheners or deodorizers in vehicles where drugs are located, sometimes even spray deodorants. In Trooper Gibbs’ experience, when drugs that give off odors are in a vehicle, the odor could be constantly present.62 In those situations,
While Frazier was looking for the rental agreement on his phone,66 Trooper Gibbs engaged him in conversation, asking him where he was coming from, and after a short pause, Frazier said he was at his sister‘s house.67 Trooper Gibbs acknowledged that when multitasking, some people will hesitate before responding to a question.68 Frazier then showed Trooper Gibbs a phone number on his cell phone for the rental company by holding up his phone for Trooper Gibbs to see the phone number.69 Frazier was never able to produce a rental agreement for Trooper Gibbs, only the phone number for the rental company.70
Trooper Gibbs asked Frazier if he would come back to his vehicle so they could make contact with the rental company together, but Frazier declined.71 Frazier started to call the rental company, but Trooper Gibbs said he would get the number from him and make the call back at his vehicle, so that he could verify who he was actually talking to.72 Before Trooper Gibbs returned to his vehicle to make that call, he pulled out his notepad to write down some information he needed, such as phone numbers, and Frazier‘s social security number for the citation, and while doing so, he continued to engage in conversation with Frazier.73 When asked
Trooper Gibbs asks the same four questions on every traffic stop—where the individual is coming from, where they are going, how long they were on their trip, and how they know other individuals in the vehicle.77 He asks these questions to make conversation, but also learn about travel plans that are short turnaround trips, which may indicate some sort of criminal activity.78 Trooper Gibbs believed that Frazier was being deceitful in his answers by the way he was answering the questions, by pausing before answering two questions and answering one question with a question, all of which led Trooper Gibbs to believe that Frazier was trying to come up the right answer but not necessarily the simple, correct answer.79 Hesitation in answering questions about travel raised suspicion because Trooper Gibbs’ training and experience has taught him that people engaged in drug trafficking hesitate to disclose specifics about their travel to protect information about sources and the destination of drugs.80 When
Trooper Gibbs Calls for Canine Handler
At approximately 9:11 a.m., Trooper Gibbs returned to his patrol vehicle, while Frazier remained in his vehicle.82 Once he returned to his vehicle, Trooper Gibbs did not initially engage in the standard procedures involved in a traffic stop.83 He attempted to make contact with a canine handler, Iron County Sheriff‘s Deputy Peterson, first via instant messaging from his patrol vehicle.84 Trooper Gibbs believed that Deputy Peterson would still be nearby and in his vehicle to access an instant message, because he had helped Trooper Gibbs on a stop just twenty minutes prior, and Deputy Peterson was the only canine handler on duty at the time.85 After Trooper Gibbs sent Deputy Peterson a couple messages, without a response, he tried to call him on the radio several times.86 Trooper Gibbs still did not get a response, so he asked dispatch to get hold of Deputy Peterson.87
As he waited for Deputy Peterson to reply to the dispatcher, Trooper Gibbs pulled up the citation form on his laptop, and began to fill out the driver and vehicle information on the citation.88 At approximately 9:14 a.m., Deputy Peterson called Trooper Gibbs on the phone and Trooper Gibbs asked him to respond to his location at mile marker 67 northbound, and Deputy
At approximately 9:19 a.m., while waiting for dispatch to return the requested information, but before contacting the car rental company, Trooper Gibbs pulled up DEASIL on his computer, a DEA license plate identification and locating system, to run the vehicle‘s license plate through that system.92 Trooper Gibbs was utilizing DEASIL to verify the travel plans that Frazier had provided, which is standard procedure if he is suspicious of criminal activity.93 Trooper Gibbs learned that the vehicle had passed through Kansas westbound on Interstate 70, on November 9, 2019, at approximately 7:46 a.m.94 This information raised additional suspicion because Frazier said he had gone to Los Angeles, and it would be a lengthy trip to go from Kansas to Los Angeles and back to the present location in that amount of time.95 The quick-turnaround trip to Los Angeles and back was suspicious, because the route and the behavior is consistent with drug trafficking, based on Trooper Gibbs’ interdiction training and experience.96
Trooper Peterson Arrives
At approximately 9:22 a.m., while Trooper Gibbs was on the phone with the rental company representative in his patrol vehicle, Deputy Peterson arrived at his location and made contact with Frazier seated in his vehicle.100 Deputy Peterson had traveled from the Iron County Sheriff‘s Office in Cedar City to the scene, taking approximately ten minutes to arrive at Trooper Gibbs’ location.101 After Deputy Peterson arrived at his location, Trooper Gibbs ended the phone call with the rental company.102
While still seated in his patrol vehicle, Trooper Gibbs observed Deputy Peterson have Frazier step out of his vehicle and conduct a pat-down of Frazier at approximately 9:23 a.m.,103 so that he could have his canine conduct a free air sniff of the vehicle.104 Trooper Gibbs observed that Deputy Peterson missed a knife on the initial pat-down, so Trooper Gibbs leaned out his window to alert him about the knife in his left pocket.105 Deputy Peterson removed the knife, and
Deputy Peterson has been an Iron County Sheriff‘s Deputy for eight years, and has been a trained canine handler for more than five years, after completing the first of two eight-week canine academies with two different canines.108 Deputy Peterson is certified as a canine instructor with his second canine, Bolos, who was certified as a narcotics detector dog in the spring of 2016, and has been re-certified each year as required.109 Bolos’ most recent certification, which was active at the time of Frazier‘s traffic stop, was issued on March 29, 2019.110 Bolos is trained to detect methamphetamine, heroin, cocaine, and marijuana.111
Canine Sniff
During the deployment of Bolos on Frazier‘s vehicle, Deputy Peterson and Bolos conducted the “free-air sniff” of the vehicle in the same manner as they were trained.112 It was approximately 44 degrees outside with a slight wind at two miles per hour.113 Bolos made three passes around the vehicle in both directions, clockwise and then counterclockwise, consistent
Deputy Peterson began deploying Bolos around Frazier‘s vehicle at approximately 9:24 a.m.116 While Deputy Peterson was deploying Bolos, Trooper Gibbs was filling out the citation, waiting for the records check from dispatch to return, and watching Frazier to make sure he didn‘t make any furtive movements or attack Deputy Peterson.117 While Bolos was being deployed, Trooper Gibbs observed that Frazier appeared nervous about what Deputy Peterson was doing.118 During the duration of the canine deployment, Trooper Gibbs’ primary focus was on watching Frazier standing on the side of the highway, to ensure officer safety while Deputy Peterson had his back to Frazier.119
Bolos alerted on the back of the vehicle by going up on it and sniffing around, but Bolos’ provided a more pronounced alert at the driver‘s side door, pressing so hard on the door seam that it left some blood from Bolos’ old wound on the door.120 Trooper Gibbs remained in his patrol vehicle during the canine deployment, and when complete, Deputy Peterson came to Trooper Gibbs’ vehicle at approximately 9:26 a.m. to verbally notify him that Bolos had alerted to narcotics in the vehicle, at the “driver‘s door.”121 Shortly after Deputy Peterson told Trooper
Search of Frazier and Vehicle
Trooper Gibbs told dispatch to go ahead with the results, and at approximately 9:27 a.m., dispatch told Trooper Gibbs that Frazier did not have any criminal history since 2006, nothing drug-related, but he had been charged with murder and pled to manslaughter.123 Trooper Gibbs decided to approach Frazier with more caution and have him wait in the back of his patrol vehicle while they conducted the vehicle search.124
Both Trooper Gibbs and Deputy Peterson approached Frazier, who was still standing on the side of the highway, and told him that they would be searching his vehicle and why, and that they would also be placing him in the patrol vehicle during the search.125 As Frazier started to get into the back of the patrol vehicle, Deputy Peterson said he wanted to pat him down one more time to confirm there were no weapons.126
At approximately 9:28 a.m., Deputy Peterson began to conduct the pat down and immediately felt a gun in Frazier‘s left front pants pocket, which was removed without incident at approximately 9:29 a.m.127 Frazier was handcuffed and placed under arrest.128 At 9:32 a.m., dispatch advised Trooper Gibbs that the firearm was stolen.129
After the drugs were located in the initial search, the vehicle was moved to the Utah Highway Patrol Office in Cedar City for a more detailed search.135 Also located in the bags in the cargo area were some vacuum-sealed bags and dryer sheets, which are used to package drugs and conceal odors.136 Trooper Gibbs follows Utah Department of Public Safety Policies 516 (Search and Seizure) and 704 (Vehicle Towing and Release), on his traffic stops to the extent that they apply.137
I. The Traffic Stop Was Justified from Its Inception.
A. Standard of Review
A routine traffic stop is an investigative detention governed by the principles of Terry v. Ohio, 392 U.S. 1 (1968).138 “[A] traffic stop is reasonable if it is (1) justified at its inception and (2) reasonably related in scope to the circumstances which justified the interference in the first place.”139 A stop is “valid under the
“Reasonable suspicion is ‘a particularized and objective basis’ for suspecting the person stopped of criminal activity.”141 “Reasonable suspicion is a less demanding standard than probable cause” because it can be established with information that is different in quantity or content than that required to establish probable cause,” and can “arise from information that is less reliable than that required to show probable cause.”142 ”Terry demands suspicion not certainty.”143
“For reasonable suspicion to exist, an officer ‘need not rule out the possibility of innocent conduct;’ he or she simply must possess ‘some minimal level of objective justification’ for making the stop.”144 Indeed, “as long as [the officer] has a particularized and objective basis for suspecting an individual may be involved in criminal activity, [the officer] may initiate an investigatory detention even if it is more likely than not that the individual is not involved in any
B. Trooper Gibbs Had Reasonable Suspicion to Stop the Vehicle After Observing Several Traffic Violations.
The stop of Frazier‘s vehicle was justified because Trooper Gibbs observed the vehicle speeding, in violation of
Trooper Gibbs observed Frazier‘s vehicle pass his location traveling northbound on Interstate 15, and he visually estimated the vehicle to be traveling at approximately 85 miles per hour.151 The speed limit at that section of Interstate 15 is 80 miles per hour, and that speed limit
Trooper Gibbs followed the vehicle, directly behind it in the right lane, and paced the vehicle traveling at approximately 85 miles per hour,153 also confirmed by radar.154 The speed that he was traveling as he paced the vehicle for approximately two miles is captured on Trooper Gibbs’ dash camera, which showed that his speed stayed between 84 and 88 miles per hour.155 Based on those observations, Trooper Gibbs formed reasonable suspicion that Frazier was committing a traffic infraction, speeding in excess of the posted speed limit, in violation of the
Additionally, while Trooper Gibbs was observing the vehicle speeding, Trooper Gibbs also observed that Frazier failed to properly signal before making a lane change on two separate occasions.
(1)(a) A person may not turn a vehicle or move right or left on a roadway or change lanes until:
(i) the movement can be made with reasonable safety; and
(ii) an appropriate signal has been given as provided under this section.
(b) A signal of intention to turn right or left or to change lanes shall be given continuously for at least the last two seconds preceding the beginning of the movement.156
As both Frazier and Trooper Gibbs traveled in the right lane with Trooper Gibbs following, Trooper Gibbs changed lanes to the left lane and Frazier‘s vehicle also changed lanes in front of him, from the right to the left lane, after only signaling for a total of three blinks, and
After observing the two signal violations and the speed violation, Trooper Gibbs turned on his overhead emergency lights to conduct a traffic stop at approximately 9:06 a.m.159 Frazier pulled over to the shoulder of Interstate 15 less than a minute later.160
When reviewing a reasonable suspicion determination, courts examine the totality of the circumstances to determine whether an officer has a particularized and objective basis for suspecting wrongdoing.161 “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude the untrained person.‘”162 Based on the observed traffic violations, Trooper Gibbs had reasonable suspicion to conduct a routine traffic stop of Frazier‘s vehicle.
II. The Scope and Duration of the Traffic Stop was Reasonably Related to the Circumstances Justifying the Stop.
Conduct of a routine traffic stop is also governed by Terry principles.163 A lawful stop justifies a detention sufficient in scope and duration to investigate the suspected violation that
An officer conducting a traffic stop may perform a range of investigatory inquiries, subject to the overarching rule that the stop does not “unreasonably infringe [] interests protected by the
During a stop, officers may conduct a canine sniff without probable cause or reasonable suspicion, if it does not prolong the time reasonably required to complete the mission of the stop.171 The longer the officer takes to complete these routine traffic-stop steps, the longer the
In Sharpe, the Court rejected a “per se rule that a 20-minute detention is too long to be justified” in the context of a vehicle stop based on reasonable suspicion, explaining that a stopwatch approach is “clearly and fundamentally at odds with our approach in this area.”173 The Court explained that the duration of a temporary seizure must be reasonable under the circumstances and that it is “appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.”174 The Court cautioned, however, that courts should not “second-guess[]” police officers’ decisions by “imagin[ing] some alternative means by which” they could have accomplished their objectives more quickly.175
A. Trooper Gibbs Diligently Pursued the Tasks Reasonably Associated with the Traffic Stop.
The purpose of the stop had not been completed when Bolos alerted to narcotics in Frazier‘s vehicle. Trooper Gibbs initiated the traffic stop at approximately 9:06 a.m.176 Approximately twenty minutes had elapsed when Trooper Gibbs was notified that Bolos had alerted on the vehicle at approximately 9:26 a.m.177 During that entire time period, Trooper
At the time Trooper Gibbs was notified of Bolos’ alert, he had not received the results of the records requests from dispatch, which he received at approximately 9:27 a.m.182 It was reasonable for Trooper Gibbs to wait for a criminal history check because many officers are shot during routine traffic stops, so warrant and history “checks are run largely to protect the officer.”183 It was only after Deputy Peterson told Trooper Gibbs of Bolos’ alert that dispatch communicated Frazier‘s criminal history that included an arrest for murder, and a conviction for involuntary manslaughter. Accordingly, the canine sniff did not prolong the time reasonably required to complete the mission of the stop, and in turn, provided probable cause to search the vehicle.184
At the time that Bolos alerted on the vehicle, when the stop transitioned to a probable cause search of the vehicle, Trooper Gibbs had not yet completed the routine tasks associated with the traffic stop. He was still working on the citation and dispatch had not yet returned the results of a criminal history check, when Deputy Peterson notified Trooper Gibbs that Bolos had alerted. Because tasks tied to the infractions and to the safe completion of the mission of the original stop were not yet completed, Trooper Gibbs’ authority for the seizure had yet not ended when Bolos alerted on Frazier‘s vehicle.
The United States Supreme Court found no
From the beginning of his contact with Frazier, and as he worked through the tasks associated with a routine traffic stop, Trooper Gibbs developed reasonable suspicion that Frazier might be involved in criminal activity, which provided authority to extend the duration and scope of the stop if necessary. Beginning at approximately 9:07 a.m., Trooper Gibbs made a passenger side approach to Frazier‘s vehicle, and began to make observations into the windows as he approached.190 Trooper Gibbs observed a duffle bag in the back cargo area that appeared to be new, along with what appeared to be another smaller bag.191 Trooper Gibbs then made contact with Frazier from the front passenger side of the vehicle, but Frazier would only roll down the window approximately three to four inches.192 When Trooper Gibbs asked him to roll the window down further, he rolled it down only an inch further.193 Trooper Gibbs observed there was a small container of air freshener or scent deodorizer in the center console.194 Based on Frazier‘s willingness to only roll the window down a few inches, coupled with the presence of the deodorizer, Trooper Gibbs believed that Frazier was trying to hide odors from the vehicle, such as marijuana or alcohol.195
Frazier handed to Trooper Gibbs an Iowa driver‘s license, but when he handed it to him, Trooper Gibbs observed what appeared to be a Missouri driver‘s license in Frazier‘s wallet.196
As Frazier looked for the rental agreement, Trooper Gibbs engaged him in conversation, asking him where he was coming from, and after a short pause, Frazier said he was at his sister‘s house.202 Frazier then showed Trooper Gibbs a phone number on his cell phone for the rental company by holding up his phone for Trooper Gibbs to see.203 The registration indicated that the vehicle was a rental, but Frazier was never able to produce a rental agreement for Trooper Gibbs, only the phone number for the rental company.204
Frazier did not want to do go with Trooper Gibbs to his patrol vehicle to call the rental company,205 so Trooper Gibbs told him that he would just get the number from him and make the call back at his vehicle, so that he could verify that is who he was actually talking to.206 Before Trooper Gibbs returned to his vehicle to make that call, he pulled out his notepad to write down some information he needed, such as phone numbers, and Frazier‘s social security number
Trooper Gibbs asks the same four questions on every traffic stop—where individuals are coming from, where they are going, how long they were on their trip, and how they know other individuals in the vehicle.211 He asks these questions to make conversation, but also to learn about travel plans that are short turnaround trips which may indicate some sort of criminal activity.212 Trooper Gibbs believed that Frazier was being deceitful in his answers by the way he was answering the questions by pausing, answering a question with a question, indicating that he was trying to come up the right answer but not necessarily the simple, correct answer.213
Frazier‘s hesitation in answering questions about his travel raised suspicion based upon Trooper Gibbs’ training and experience, because people engaged in drug trafficking hesitate to disclose specifics about their travel to protect information about sources and the destination of drugs.214 At that point, Trooper Gibbs’ suspicion was raised that there was something in the
Trooper Gibbs returned to his patrol vehicle, while Frazier remained in his vehicle, at approximately 9:11 a.m.216 Once he returned to his vehicle, based on his suspicion that Frazier was possibly involved in the trafficking of narcotics, Trooper Gibbs attempted to make contact with a canine handler, Iron County Sheriff‘s Deputy Peterson, first via instant messaging from his patrol vehicle.217 After Trooper Gibbs sent Deputy Peterson a couple messages, without a response, he tried to call him on the radio several times.218 Trooper Gibbs still did not get a response, so he asked dispatch to get hold of Deputy Peterson.219 Each of these attempts to contact Deputy Peterson were done while Trooper Gibbs was engaged in other duties related to a routine traffic stop.
While waiting for Deputy Peterson to reply, Trooper Gibbs pulled up the citation form on his laptop, and began to fill out the driver and vehicle information on the citation.220 At approximately 9:14 a.m., Deputy Peterson responded to Trooper Gibbs on the phone, and advised that he was en route.221 Trooper Gibbs continued working on the citation and routine traffic stop activities, reviewing the Iowa driver‘s license, verifying the license plate record for the citation, and provided the driver‘s information to dispatch to request a records check at
At approximately 9:19 a.m., while waiting for dispatch to return the requested information, Trooper Gibbs pulled up DEASIL on his computer, a DEA license plate identification and locating system.224 Trooper Gibbs utilized DEASIL to verify the travel plans that Frazier had provided, which is standard procedure if he is suspicious of criminal activity.225 Trooper Gibbs learned that the vehicle had passed through Kansas westbound on Interstate 70, on November 9, 2019, at approximately 7:46 a.m.226 The quick-turnaround trip to Los Angeles and back was suspicious to Trooper Gibbs, because the route and the behavior is consistent with drug trafficking, based on his interdiction training and experience.227
At approximately 9:21 a.m., Trooper Gibbs called the rental company to verify that Frazier was authorized to have the vehicle.228 Trooper Gibbs spoke to a representative at the rental company and was able to verify that Frazier was authorized to have the rental and it was not overdue.229 The phone call with the rental company lasted for approximately two minutes.230
At approximately 9:22 a.m., and while Trooper Gibbs was on the phone with the rental company representative in his patrol vehicle, Deputy Peterson arrived at his location and made
Deputy Peterson began deploying his canine around Frazier‘s vehicle at approximately 9:24 a.m.237 While Deputy Peterson was deploying his canine, Trooper Gibbs was filling out the citation, waiting for the records check from dispatch to return, and watching Frazier to make sure he didn‘t make any furtive movements or attack Deputy Peterson.238 While the canine was being deployed, Trooper Gibbs observed that Frazier appeared nervous about what Deputy Peterson was doing.239
Deputy Peterson came to Trooper Gibbs’ vehicle at approximately 9:26 a.m. to verbally notify him that the canine had alerted to narcotics in the vehicle, at the “driver‘s door.”240 Shortly
At approximately 9:27 a.m., dispatch told Trooper Gibbs that Frazier did not have any criminal history since 2006, but he had been charged with murder and pled to manslaughter.242 Based on that information, Trooper Gibbs decided to place Frazier in the back of his patrol car while they conducted the vehicle search.243
Throughout the entire contact from the stop to the canine alert, Trooper Gibbs was not only pursuing tasks associated with a routine traffic stop, he was making observations and assessing the facts that formed reasonable suspicion that Frazier was engaged in criminal activity. Although the duration and scope of the traffic stop was not longer than reasonably necessary to effect the original purpose of the stop, Trooper Gibbs had reasonable suspicion to extend the duration and scope of the stop to include the canine sniff if necessary. A traffic stop may be expanded beyond its initial purpose if the officer has reasonable suspicion that illegal activity is occurring.244 “Officers with reasonable suspicion to believe that the occupants of a vehicle are engaged in the unlawful transportation of contraband may detain the vehicle for a reasonable time to obtain a properly trained dog to sniff for contraband.”245 An officer is “entitled to make an assessment of [a] situation in light of his specialized training.”246
Trooper Gibbs’ training and experience in drug interdiction plays a role in his assessment of reasonable suspicion in this case. The assessment of reasonable suspicion is based on the totality of the circumstances, and a court may not avoid a conclusion of reasonable suspicion by undertaking a “divide-and-conquer analysis” in which it examines factors “in isolation from each
Prior to Bolos’ alert to narcotics in the vehicle, Trooper Gibbs observed many factors which, based on his training an experience, and when considered in totality, gave rise to reasonable suspicion of criminal activity. As cited previously, some of the key facts and observations that led to reasonable suspicion include, but are not limited to:
- Trooper Gibbs observed a duffle bag in the cargo area of the vehicle;
- Frazier would not roll down the window more than a few inches;
- Trooper Gibbs observed an air freshener or deodorizer in the vehicle;
- Trooper Gibbs believed that Frazier was being deceptive when answering his routine questions;
- Frazier had identification documents from two states in his wallet;
- Frazier could not produce a rental agreement to establish his authority to operate the vehicle;
- The travel pattern of Frazier, to Los Angeles and back, including the short turnaround time for the trip.
Unusual behavior, coupled with other factors, supports reasonable suspicion.255 Based on his training and experience, Trooper Gibbs believed that some of Frazier‘s conduct was unusual and suspicious. Among the many factors that contribute to reasonable suspicion, “the inability to offer proof of ownership or authorization to operate the vehicle has figured prominently in many [] cases upholding further questioning.”256 The “defining characteristic” of the 10th Circuit‘s
While there may be innocent explanations for each observation, the “existence of a plausible innocent explanation does not preclude a finding of reasonable suspicion. ‘Reasonable suspicion requires a dose of reasonableness and simply does not require an officer to rule out every possible lawful explanation for suspicious circumstances.‘”258 Given the totality of the above-described factors, Trooper Gibbs had reasonable suspicion to prolong the detention of Frazier to the moment that Bolos alerted on the vehicle.
III. Probable Cause Existed to Search Frazier‘s Vehicle.
A trained canine‘s alert to the scent of narcotics in a vehicle establishes probable cause to search the vehicle.259 Bolos, a trained canine, alerted to narcotics in Frazier‘s vehicle, establishing probable cause to search the vehicle.260 Deputy Peterson has been an Iron County Sheriff‘s Deputy for eight years, and has been a trained canine handler for more than five years.261 Bolos was certified as a narcotics detector dog with Deputy Peterson in 2016, and has been re-certified each year as required.262 Bolos’ most recent certification, which was active at
Deputy Peterson began deploying Bolos around Frazier‘s vehicle at approximately 9:24 a.m.265 Bolos conducted the “free-air sniff” of the vehicle, making three passes around the vehicle in both directions, clockwise and then counterclockwise, consistent with his training.266 Bolos alerted on the back of the vehicle by going up on it and sniffing around, but Bolos provided a more pronounced alert at the driver‘s side door, pressing hard on the door seam.267 At approximately 9:26 a.m., Deputy Peterson notified Trooper Gibbs that Bolos had alerted to narcotics in the vehicle at the “driver‘s door.”268 Bolos’ alert provided probable cause to search Frazier‘s vehicle.269
Trooper Gibbs had reasonable suspicion to stop Frazier‘s vehicle for several observed traffic violations; the detention of Frazier did not exceed that which is legally authorized under the circumstances; and there was probable cause to search Frazier‘s vehicle based upon a trained canine alert. Accordingly, the Motion is DENIED.
Signed June 13, 2020.
BY THE COURT
David Nuffer
United States District Judge