UNITED STATES OF AMERICA v. ANTOINE DWAYNE FRAZIER
No. 20-4131
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
April 13, 2022
467 F. Supp. 3d 1144
PUBLISH. FILED United States Court of Appeals Tenth Circuit. Christopher M. Wolpert, Clerk of Court.
John C. Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.
Nathan H. Jack, Assistant United States Attorney (Andrea T. Martinez, Acting United States Attorney, and Ryan D. Tenney, Assistant United States Attorney, on the brief), Salt Lake City, Utah, for the Plaintiff-Appellee.
Before TYMKOVICH, Chief Circuit Judge, SEYMOUR and EBEL, Circuit Judges.
SEYMOUR, Circuit Judge.
Mr. Frazier appeals the district court‘s denial of his motion to suppress evidence obtained during a roadside search of his vehicle in 2019. See United States v. Frazier, 467 F. Supp. 3d 1144 (D. Utah 2020). He argues that the evidence was inadmissible
I Background
The parties do not dispute the basic sequence of events leading to the search of Mr. Frazier‘s vehicle. On the morning of November 12, 2019, Trooper Adam Gibbs of the Utah Highway Patrol was working a stretch of Interstate 15 in Iron County. Posted in his usual spot in the median near mile marker 63, he was on the phone with a colleague when he noticed a black man headed north in a white SUV with Kansas plates. As it passed, the vehicle appeared to be “going a little fast,” about five miles per hour over the posted limit. Rec., vol. I at 119. Trooper Gibbs pulled out to follow. Over the next several miles, the trooper paced the vehicle at between four and eight miles faster than the posted limit and twice observed Mr. Frazier change lanes after signaling for less than the two seconds required under Utah law. The trooper also ran the plates to see if the vehicle had been reported stolen. Although it had not, the trooper turned on his flashers to pull over Mr. Frazier, who complied. It was 9:06 a.m.
At 9:07 a.m., the trooper exited his cruiser and approached Mr. Frazier‘s vehicle from the passenger side. As he did, he looked through the rear window and saw two bags, one of which was a duffle bag that “appeared to be somewhat new.” Rec., vol. I at 43-46. When the trooper reached the front of the vehicle, Mr. Frazier rolled down the window about four inches. The trooper asked him to roll it down more, and Frazier complied,
At this point, Trooper Gibbs broke from the conversation for a moment to peer into the back of Mr. Frazier‘s vehicle. When he returned, Mr. Frazier was on his phone looking up the rental company‘s confirmation. As he did, the trooper asked Frazier where he was coming from. After a momentary pause, Mr. Frazier said he was coming from his sister‘s residence in California. When the trooper repeated the question, Mr. Frazier looked up from his phone, repeated his answer, and told the trooper that he had found the contact number for the company. Mr. Frazier then attempted to hand the phone over so the trooper could call and verify the rental, but the trooper cut him off, saying, “Why don‘t you come on back here and we‘ll give them a call, if you don‘t mind coming back to my car real quick?” Trooper‘s Bodycam, 09:09:18. When Mr. Frazier declined, the trooper cut him off again, this time to ask Mr. Frazier how long he had been at his
The trooper returned to his cruiser at about 9:11 a.m. Significantly, however, he did not begin the standard procedures necessary to issue a citation. Instead, he immediately began trying to contact Deputy Shawn Peterson, a canine handler with the local sheriff‘s office, so he could come to the scene and perform a dog sniff of the vehicle. At first, the trooper tried contacting the deputy via the instant-messaging system on his vehicle‘s computer. When the deputy failed to respond to several messages, Trooper Gibbs tried to call him on the radio. When the deputy again failed to respond, the trooper asked dispatch to locate him and send him to the scene.
Around 9:14 a.m., Trooper Gibbs began filling out the citation. About a minute later, Deputy Peterson called back and, after a brief exchange, said he was on his way.
Following the DEASIL search, at about 9:21 a.m., the trooper called the rental company, which confirmed that Mr. Frazier was the vehicle‘s authorized lessee and corroborated his prior statement that he had been renting the vehicle for about a month. The exchange took about two minutes.
At 9:22 a.m., while the trooper was on the phone with the rental company, Deputy Peterson arrived at the scene. Shortly after his arrival, as the trooper looked on, the deputy directed Mr. Frazier to exit the vehicle and then conducted a pat-down search. Upon finding a knife in Mr. Frazier‘s waistband, Deputy Peterson instructed Mr. Frazier to wait by the side of the road about 20 yards away from the vehicle. Around 9:24 a.m., the deputy had his dog sniff the vehicle. After the sniff was complete at 9:26 a.m.,
As Deputy Peterson relayed the news about the dog‘s alert, a dispatcher contacted Trooper Gibbs with the results of his records request: Mr. Frazier had pleaded guilty to manslaughter in 2006 but had no other criminal history since then. The trooper decided to move Mr. Frazier to the patrol car while he and Deputy Peterson searched the vehicle. Before doing so, however, they conducted another pat-down and found a .22 caliber pistol in Mr. Frazier‘s pants pocket. The officers then placed Mr. Frazier under arrest for being a felon in possession of a firearm and proceeded to search the vehicle. The duffle bag held only clothes and hygiene items, but the smaller bag held fentanyl pills and a kilo of cocaine.
A month after Mr. Frazier‘s arrest, the government indicted him on charges of possession of fentanyl with intent to distribute in violation of
At the ensuing evidentiary hearing, Trooper Gibbs testified that he began to suspect that Mr. Frazier was carrying drugs early in the traffic stop based on the duffle bag in the cargo area, the “deceitful” way Mr. Frazier answered questions, and a belief
Following the hearing, the district court issued a written order denying Mr. Frazier‘s motion to suppress. Mr. Frazier then entered a conditional guilty plea, leading to the instant appeal. “When reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government, accept the district court‘s findings of fact unless they are clearly erroneous, and review de novo the ultimate question of reasonableness under the Fourth Amendment.” United States v. Mayville, 955 F.3d 825, 829 (10th Cir. 2020) (quoting United States v. McNeal, 862 F.3d 1057, 1061 (10th Cir. 2017)).
The Fourth Amendment guarantees a person‘s right to be free from “unreasonable searches and seizures.”
In Rodriguez v. United States, 575 U.S. 348 (2015), the Supreme Court explained that an officer‘s authority to seize the occupants of a vehicle ends when “tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id. at 354. Reasonableness in this context is defined by what the officer actually does. Id. at 357. “If an officer can complete traffic-based inquiries expeditiously, then that is the amount of ‘time reasonably required to complete [the stop‘s] mission.‘” Id. (alteration in original) (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). An officer may conduct certain unrelated inquiries during the stop, but he may not do so in a way that prolongs it absent the reasonable suspicion ordinarily required to detain an individual. Id. at 355.
Under Rodriguez, therefore, an unlawful seizure occurs when an officer (1) diverts from the traffic-based mission of the stop to investigate ordinary criminal conduct, (2) in a way that “prolongs” (i.e., adds time to) the stop, and (3) the investigative detour is unsupported by any independent reasonable suspicion. See id. at 357-58; Mayville, 955 F.3d at 829-30. Even de minimis delays caused by unrelated inquiries violate the Fourth
Mr. Frazier does not contest the validity of the initial stop, arguing instead that the trooper impermissibly prolonged the traffic stop in two ways: first, by spending several minutes trying to arrange the dog sniff before beginning to work on the citation, and then by interrupting his work on the citation to search the DEASIL database. Under Rodriguez, our task is to determine whether these activities diverted from the traffic-based mission of the stop in a way that prolonged it and, if so, whether the trooper had the reasonable suspicion necessary to justify the investigative detours when they occurred.1
A.
Although the district court held otherwise, we think it clear that the trooper‘s efforts to arrange for a dog sniff diverted from the traffic-based mission of the stop and thereby extended its duration. The government does not argue to the contrary, and for good reason. The reasonableness of a seizure depends on “what the police in fact do.” Rodriguez, 575 U.S. at 357. And each minute that the trooper spent arranging the dog
The government contends instead that the investigative delay caused by the trooper‘s effort to arrange the dog sniff was nevertheless permissible because he had already developed a reasonable suspicion of drug trafficking at that point. We disagree. Reasonable suspicion requires a “particularized and objective basis for suspecting criminal conduct under a totality of the circumstances.” Cortez, 965 F.3d at 834 (quoting United States v. Pettit, 785 F.3d 1374, 1379 (10th Cir. 2015)). “While reasonable suspicion cannot be based upon a mere hunch, it also need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Kitchell, 653 F.3d 1206, 1219 (10th Cir. 2011). The government bears the burden of satisfying this standard, but it is not an onerous one. Id.
The district court identified several circumstances supporting its conclusion that the trooper had reasonable suspicion that Mr. Frazier was engaged in criminal activity. For reasons discussed in further detail below, we consider only those facts known to the
1. The Duffle Bag
The district court credited the trooper‘s testimony that the duffle bag he saw in the back of Mr. Frazier‘s vehicle was indicative of drug trafficking. Given the specialized training and experience that law enforcement officers have, we generally defer to their ability to distinguish between innocent and suspicious behavior, but deference becomes inappropriate “when an officer relies on a circumstance incorrigibly free of associations with criminal activity.” United States v. Santos, 403 F.3d 1120, 1133 (10th Cir. 2005). The government does not defend the district court‘s reliance on this factor, and we conclude as we have in the past that the presence of a bag in a vehicle adds nothing to the reasonable suspicion calculus. See id. at 1124, 1133 (declining to give any weight to the presence of a new, locked suitcase in the defendant‘s trunk). It is merely evidence of travel.
2. The Window and the Air Freshener
The district court credited the trooper‘s testimony that the presence of the air freshener in the console and Mr. Frazier‘s failure to completely roll down his window suggested that Mr. Frazier was trying to hide odors emanating from the vehicle. In doing so, however, it appears the court failed to fully consider the trooper‘s testimony that he
We are similarly unimpressed with the fact that Mr. Frazier did not completely roll down his window. Although a refusal to open a window might support a finding of reasonable suspicion in some circumstances, see United States v. Ludlow, 992 F.2d 260, 261-62, 264-66 (10th Cir. 1993), we are not persuaded that it does here. Unlike in Ludlow, where weather was not a factor, here it was a brisk 44 degrees on the morning in question. Moreover, although the window was not completely open, it was open wide enough to carry on a conversation and hand objects back and forth without difficulty. Even before he complied with the trooper‘s request to open the window further, Mr. Frazier had opened the window wide enough that any inculpatory odors would have been readily detectable to an officer in Trooper Gibbs‘s position. Given that the trooper smelled nothing, we do not think that a reasonable officer would have viewed the partially unrolled window as an effort to conceal the smell of contraband.
The government also contends that Mr. Frazier‘s failure to fully roll down his window was suspicious because “it could have appeared as defiant behavior,” a rationale that neither the trooper nor the district court relied upon. See Aple. Br. at 25 n.4 (quoting
3. Mr. Frazier‘s Response to Questioning
The district court also cited the trooper‘s belief that the way Mr. Frazier responded to routine questions suggested he had something to hide. The government argues that this was appropriate because we have held that “evasive answers” regarding one‘s travel plans may support a finding of reasonable suspicion. Aple. Br. at 31 (citing United States v. Simpson, 609 F.3d 1140, 1150 (10th Cir. 2010); Sanchez-Valderuten, 11 F.3d at 989). Again, this allegedly suspicious behavior must be viewed in context.
The first response cited by the government came after the trooper asked Mr. Frazier where he was traveling from. A moment before, the trooper had stepped away from the window, and when he returned, Mr. Frazier was on his phone trying to find the rental company‘s contact information to prove he had authority to operate the vehicle. Trooper Gibbs‘s question, therefore, came out of the blue while Mr. Frazier was busy trying to comply with a prior request. The ensuing pause lasted no longer than one would expect from anyone asked a question under such circumstances.
The second supposedly suspicious response came just a few seconds later. As Mr. Frazier was responding to the trooper‘s request to come back to the squad car, the trooper abruptly switched gears and asked Mr. Frazier how long he had been at his sister‘s house. At this, Mr. Frazier paused briefly and then asked the trooper why he was asking these
The final interaction, in which the trooper asked Mr. Frazier where in California he was coming from, is equally flawed. Once again, the trooper interjected the question as an abrupt non sequitur while Mr. Frazier was distracted by his phone. Given the manner and timing of the question, the beat taken by Mr. Frazier as he turned his attention away from the phone and back to the trooper was therefore not suspicious; it was exactly how one would expect any driver to respond under the circumstances.
Given the nature and context of Trooper Gibbs‘s questions, it was unreasonable for the district court to rely on his conclusion that Mr. Frazier‘s responses were indicative of deception. Our deference to law enforcement judgment extends to reasonable inferences
Here, by contrast, Trooper Gibbs cited no meandering, inconsistent, or illogical answers. He cited only the duffle bag, the air freshener bottle, and the partially unrolled window, facts that were completely innocuous. Thus, at bottom, the trooper‘s suspicion was based on nothing more than his own subjective interpretation of Mr. Frazier‘s behavior, which was entirely consistent with that of a driver who, though distracted and mildly annoyed by an arguably invasive question, had absolutely nothing to hide. In other words, the trooper merely had a hunch. As such, his belief that Mr. Frazier‘s responses were indicative of criminal conduct was not entitled to the deference it received from the district court.
Next, the district court cited the fact that Mr. Frazier had a driver‘s license from Iowa and an identification card from Missouri. Although the court referenced the two IDs, it did not explain how they added to reasonable suspicion. Nor is it obvious how they would. Mr. Frazier said that he spent time in both Missouri and Iowa, which are neighboring states, both IDs were valid, and both bore consistent information. Even the trooper testified that he did not think them suspicious once he saw that the Iowa card was genuine.
The government‘s effort to fill in the blanks is hardly convincing. Rather than tie the IDs to some particularized indicia of wrongdoing, the government merely cites the IDs as an “odd fact” that “could” have caused the trooper to suspect that something was “amiss” when considered together with his other observations. Aple. Br. at 38. This reasoning is far too flimsy to be afforded any weight. Although wholly innocent conduct may support a finding of reasonable suspicion when viewed alongside other factors, there must be a concrete reason to support that interpretation. United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997). As neither the district court nor the government has supplied one, we afford no weight to the fact that Mr. Frazier had valid identification from two different states.
5. Missing Rental Agreement
Finally, the district court cited Mr. Frazier‘s inability to find his rental agreement. This might have provided reasonable suspicion under other circumstances, but it is of no
6. Rental Car and Cross-Country Travel
The government also asks us to consider the fact that Mr. Frazier was driving a rental car and traveling cross country, although these were not among the factors expressly relied upon by the district court. Neither is compelling.
Generally, the fact that a vehicle has been rented, standing alone, does not add to reasonable suspicion unless there are specific facts that make the rental relevant or unusual. Compare United States v. Berg, 956 F.3d 1213, 1219-20 (10th Cir. 2020) (declining to give weight to vehicle‘s rental status because use of a rental vehicle was not inconsistent with the defendant‘s travel plans and the officer did not identify anything unusual about the rental in question), with Williams, 271 F.3d at 1270 (giving weight to vehicle‘s rental status in part because it was rented in a city known to be a staging area for drug distribution and because defendant attempted to conceal that fact from law enforcement).
Mr. Frazier‘s travel plans, meanwhile, add nothing at all. Although we have held that “[i]mplausible travel plans can contribute to reasonable suspicion,” see Simpson, 609 F.3d at 1149 (citing Santos, 403 F.3d at 1129), the government points to nothing about Mr. Frazier‘s itinerary as it was known to Trooper Gibbs at this point in the stop to suggest that his travel plans were implausible or in any way inconsistent. Accordingly, absent other facts suggestive of criminal wrongdoing, we give no weight to the fact that Mr. Frazier was returning from a trip to the West Coast.
7. Totality of the Circumstances
Even when viewed in the aggregate, the factors discussed above are insufficient to establish reasonable suspicion. Stripped of those facts that must be disregarded as completely innocuous, we are left with the trooper‘s hunch that Mr. Frazier was trying to hide something and the fact that he was driving a rental car. Reasonable suspicion is a
B.
The government contends that our conclusion regarding the delay caused by Trooper Gibbs‘s arrangement of the dog sniff does not end our inquiry because he developed reasonable suspicion a few minutes later when he conducted the DEASIL search and discovered the brevity of Mr. Frazier‘s stay in California.3 The government asserts that the information gleaned from the search “can be used in the reasonable suspicion analysis” because the trooper conducted the query while waiting for dispatch to return the records he had requested. Aple. Br. at 40. Since that information was obtained during a period in which “Frazier would have been stopped anyway,” the government claims that it could not have added time to the stop and therefore did not violate Rodriguez.
This argument is unavailing for two reasons. First, even if we were to assume that the DEASIL search did not itself violate Rodriguez, the government does not explain how
1.
Even if, as the government claims, the DEASIL search did not further extend the stop, it would not alter our decision because that search followed an earlier Rodriguez violation. In United States v. Green, the Third Circuit confronted a similar sequence of events. There, the officer pulled over the defendant for a traffic violation and engaged in a brief roadside conversation with him. Id. at 176-77. Upon returning to his cruiser, the officer immediately telephoned a colleague to share his suspicions regarding the driver. Eight minutes later, the officer returned to the defendant‘s vehicle to issue a warning citation and the two engaged in additional conversation that arguably would have added to the officer‘s suspicion. Id. at 177. As the defendant turned to walk back to his vehicle, the officer asked for his permission to search the car. Id. When the defendant declined, the officer instructed him to wait in his vehicle until further notice. About fifteen minutes later, a canine unit arrived and alerted on the defendant‘s vehicle. A subsequent search turned up twenty pounds of heroin in the man‘s trunk. Id. On appeal, the man challenged the search on the grounds that the officer had impermissibly extended the stop to facilitate the dog sniff.
We think Rodriguez leads to the same conclusion in this case. Having determined that the trooper extended the stop when he arranged for the dog sniff, the question before us is whether the facts known to him at that moment established reasonable suspicion. Facts learned later in the investigation are irrelevant. Moreover, like the Third Circuit, we read Rodriguez as holding that when reasonable suspicion is lacking at the ”Rodriguez moment,” seizure of the individual remains illegal from that point forward. See Rodriguez, 575 U.S. at 355 (“The seizure remains lawful only ‘so long as [unrelated] inquiries do not measurably extend the duration of the stop.‘” (quoting Arizona v. Johnson, 555 U.S. 323, 333 (2009))). Consequently, even if the DEASIL search itself did
Our decision in United States v. Gurule, 935 F.3d 878 (10th Cir. 2019), on which the government relies, is not to the contrary. In that case, we held that the officer did not violate Rodriguez because it was his conduct with respect to his traffic-based mission that prolonged the stop, not his investigative actions. There, however, the traffic-based delay had not followed an earlier Rodriguez violation, as happened here. Thus, Gurule provides no support for the government‘s proposition that, when an officer undertakes an unjustified investigative detour, there is no Fourth Amendment violation if he can supply the missing reasonable suspicion by way of further investigation that does not itself prolong the traffic stop.
2.
We decline to consider the information gleaned from the DEASIL search for the additional reason that the government has failed to show that search was not itself an investigative detour that added time to the traffic stop. The government‘s argument, that the search did not violate Rodriguez because it neither exceeded the scope of the stop‘s traffic-based mission nor extended its duration, does not withstand scrutiny on either point.
To start with, the DEASIL search plainly exceeded the scope of the stop‘s traffic-based mission. “Beyond determining whether to issue a traffic ticket, an officer‘s mission includes ‘ordinary inquiries incident to [the traffic] stop.‘” Rodriguez, 575 U.S. at 355
The government has also failed to show that this diversion did not prolong the stop. It is not enough that the search occurred before dispatch returned the records. Under Rodriguez, it makes no difference whether an investigative detour occurs before or after the completion of the stop‘s traffic-based mission. The question is whether the stop would have ended sooner had the officer continued to work diligently on the traffic-related tasks rather than pursue an unrelated investigation. See id. at 357 (“If an officer can complete traffic-based inquiries expeditiously, then that is the amount of ‘time reasonably required to complete [the stop‘s] mission.‘” (alteration in original) (quoting Caballes, 543 U.S. at 407)). Thus, the government must show not only that the search occurred during a period when Mr. Frazier would have been seized anyway, it must also
The trooper requested the records at 9:18 a.m. and dispatch returned the results at 9:27 a.m. They only way to show that the DEASIL search did not “add time” to the stop for Rodriguez purposes would be to show that, had the trooper continued to work diligently on his remaining traffic-related tasks, he not only would have completed them within that nine-minute interval, he would have done so with sufficient time to also complete the DEASIL search, which itself took two minutes. The government has pointed to no such evidence; therefore, it has not carried its burden to show that the trooper executed the DEASIL search in a manner that complied with the Fourth Amendment.
III Conclusion
Trooper Gibbs departed from the traffic-based mission of the stop by arranging the dog sniff, an investigative detour that was unsupported by reasonable suspicion and that added time to the stop in violation of Rodriguez. Mr. Frazier‘s seizure was thereafter in violation of the Fourth Amendment. The trooper‘s consultation of the DEA database, a second investigative detour, only aggravated that ongoing violation. Accordingly, the evidence discovered because of that seizure is tainted by its unlawfulness and is inadmissible. Wong Sun v. United States, 371 U.S. 471, 484-86 (1963).
We REVERSE the district court‘s denial of Mr. Frazier‘s motion to suppress.
SEYMOUR
CIRCUIT JUDGE