Case Information
*1 * Before MCMILLIAN and FAGG, Circuit Judges, and BENNETT, District Judge.
___________
BENNETT, District Judge.
Defendant Kenneth Wayne Beck was convicted following a jury trial of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §
* The HONORABLE MARK W. BENNETT, United States District Judge for the Northern District of Iowa, sitting by designation.
841(a)(1), and was sentenced to 121 months imprisonment. He appeals the denial of his motion to suppress evidence seized by law enforcement officers during a search of his rental car following a traffic stop.
We reverse.
I. FACTUAL BACKGROUND
A. Lack of Factual Findings
The district court here made only limited factual findings on the
record, in all likelihood because the facts of this case are uncontested.
Ordinarily, Rule 12(e) of the Federal Rules of Criminal Procedure requires
that we remand а case to the district court when the district court has
failed to set out its factual findings underlying its decision on a motion
to suppress. See generally United States v. Bloomfield ,
factual findings if, on review of the record, it finds that "any reasonable view of the evidence” supports the district court's decision). We turn next to the uncontested facts of this case.
B. Uncontested facts
The uncontested testimony at the suppression hearing reveals the following. On November 12, 1996, Officer Joe Taylor of the Conway, Arkansas, Police Department was patrolling Interstate 40 when he observed a green Buick with California license plates following another vehicle too closely. Officer Taylor proceeded to pull the green Buick over for the observed traffic infraction. Officer Taylor approached the automobile’s passenger side and asked the driver, defendant Beck, for his license and rental agreement. Officer Taylor explained to Beck the reason for his being stopped. While talking to Beck, Officer Taylor observed that Beck appeared nervous since his hands were shaking and he was looking around. Officer Tаylor also saw “fast food trash” on the Buick’s front passenger floorboard. While Officer Taylor observed a briefcase in the rear of the automobile, he did not see any luggage in the car’s passenger compartment. Officer Taylor did not observe any evidence that Beck was under the influence of drugs or intoxicants.
Officer Taylor returned to his patrol car and ran a check on Beck’s driver’s license and a criminal history check for Beck. These inquiries revealed that Beck’s driver’s licence was valid, and that he had no criminal history. Following these checks, Officer Taylor returned to the passenger side of Beck’s Buick and handed back Beck’s drivеr’s license and rental agreement. Officer Taylor gave Beck a verbal warning for following another motor vehicle too closely and then told Beck he was free to go. Officer Taylor then turned, started to walk back to his patrol car before stopping and
asking Beck if he had any guns, drugs, or knives in his automobile. Beck turned, stared out the window, and said, “No.” Officer Taylor then asked Beck if he could conduct a quick search of Beck’s Buick. Beck became more nervous and asked Officer Taylor why he wanted to search his automobile. Beck told Officer Taylor that he was just trying to get to North Carolina for a job. Officer Taylor responded by telling Beck thаt he was just trying to ascertain if Beck had any firearms or drugs in the car. Beck again replied, “No, no.” Beck and Taylor engaged in further discussion over why Officer Taylor wanted to search Beck’s automobile. Officer Taylor, in Beck’s presence, radioed for Officer Tom Knopp, who is a K-9 officer, to assist him at the scene. Officer Knopp, who had been monitoring police radio transmissions, was already on his way to the scene of the stop with his drug dog, King. 1
After calling for Officer Knopp, Beck and Officer Taylor resumed their colloquy concerning Beck’s consent to a search of his automobile, with Beck wanting to know what would happen if he refused to consent. Officer Taylor answered Beck’s question by telling him that while no search would occur, a drug dog would be led around the outside of Beck’s Buick. Beck then replied, “Well, no.” At this juncture, Officer Knopp and his drug dog arrived on the scene. Officer Taylor motioned to Officer Knopp that he wanted Officer Knopp to get King out. Officer Taylor then instructed Beck to get out of his automobile and to stand to the side of the car. Beck complied with Officer Taylor’s instructions and exited the Buick. Officer Knopp removed King from his patrol car and permitted the dog to have a drink of water and to relieve himself along the roadway before bringing him to Beck’s Buick. King was led around Bеck’s
1
Officer Taylor, whose assignment was that of a drug interdiction officer for the
Conway Police Department, usually has a drug dog in his squad car, but did not on the
day he stopped Beck because he was patrolling in a spare squad car. Tr. at 11.
*5
automobile and he alerted to the rear door on the passenger side of the
Buick. Officer Taylor informed Beck of his constitutional rights, as
required by Miranda v. Arizona ,
The officer then removed the contents from the Buick’s trunk and placed King inside the trunk. King did not alert in the trunk nor to the items removed from the trunk. Due to inclement weather, Officer Taylor had the Buick removed from the side of the highway to a wrecker yard. At the wrecker yard, during a search of the Buick and its contents, the police discovered additional quantities of methamphetamine in the briefcase and hidden in the car’s trunk.
II. DISCUSSION
A. Procedural Background Defendant Beck timely moved to suppress the methamphetamine. Following an evidentiary hearing, the district court denied Beck’s motion to suppress from the bench. The district court concluded that Beck was not detained after being told by Officer Taylor that he was free to go. The district court further found, although “barely so,” that Officer Taylor, from his observations of both Beck and his rental car, developed reasonable suspicion to detain Beck.
On appeal, Beck challenges the district court’s denial of his motion to suppress, arguing that the methamphetamine should have been excluded because the search that
uncovered it was the tainted fruit of an unreasonable detention. Appellee United States counters that the district court was correct in its denial of the defendant’s motion to suppress because Officer Taylor, who had stopped the defendant’s automobile for a routine traffic infraction, developed reasonable suspicion to detain Beck in order to permit a dog sniff of his automobile. Defendant Beck further asserts that the inventory search of his automobile was invalid. The United States contends that this issue was not properly preserved for appeal and that there was no plain error in the district court’s admission of evidence found in Beck’s automobile during the inventory search.
Thus, in this appeal, we must initially determine whether asking Beck to step from his motor vehicle, after the completion of a valid stop for a traffic violation, in order to await a drug dog sniff of his automobile, constitutes a seizure within the purview of the Fourth Amendment. If such actions do give rise to a seizure within the scope of the Fourth Amendment, we are also called upon to determine the issue of whether the law enforcement officers here possessed reasonable suspicion to detain Beck in order to conduct the dog sniff of his automobile. We begin by addressing the constitutionality of Beck’s detention.
B. Seizure Question
We review district court’s findings of historical fact for clear error
and determinations оf reasonable suspicion and probable cause de novo .
Ornelas v. United States ,
established that a traffic violation--however minor--creates probable cause
to stop the driver of a vehicle.’” United States v. Barry ,
This court has held that
“The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. . . .an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify оr dispel the officer's suspicion in a short period of time.”
United States v. Willis , 967 F.2d 1220, 1224 (8th Cir. 1992) (quoting
Florida v. Royer , 460 U.S. 491, 500 (1983)); Bloomfield , 40 F.3d at 916
(quoting Willis ,
During an investigative stop, officers may check for weapons and may
take any additional steps “reasonably necessary to protect their personal
safety and to maintain the status quo during the course of the stop.”
United States v. Hensley ,
search an area--even if the officer has no reason to suspect the individual
is involved in criminal activity--provided the officer does not indicate
that compliance with his request is required.” White , 81 F.3d at 779.
Instead, the transformation of a consensual encounter into a Terry stop
occurs only “when the questioning is so ‘intimidating, threatening or
coercive that a reasonable person would not have believed himself free to
leave.’" Hathcock ,
Under the facts of this case, upon Officer Taylor telling Beck that he
was free to go, we hold that the encounter between Officer Taylor and Beck
was initially consensual. Consensual encounters, of course, do not
implicate the Fourth Amendment. Michigan v. Chesternut , 486 U.S. 567,
574-76 (1988). At that juncture, Officer Taylor had already returned Beck’s
driver’s license and the rental agreement. Thus, we conclude that Beck was
no lоnger seized at the time Officer Taylor asked for permission to search
Beck’s automobile because Beck had everything in his possession which he
needed to continue his trip. See White ,
The consensual nature of the encounter between Officer Taylor and Beck continued until Beck asked what would happen if he refused to permit a search of his
automobile. At that point Officer Taylor informed Beck that if he refused
to consent to a search, Officer Beck would have а canine unit conduct a drug
sniff of his automobile. Because a consensual encounter can become an
investigatory detention as a result of police conduct, see, e.g., United
States v. Place ,
Furthermore, any doubts that Beck had that he was free to drive away were extinguished when, after refusing consent to a search of his automobile, Officer Taylor ordered Beck to get out of his automobile and to stand on the side of the road. At that point, having been ordered out of his vehicle in order to permit a drug dog sniff, a reasonable person in Beck’s situation would not have felt free to leave.
C. Reasonable Suspicion
We appreciate that the district court was troubled by the issue of whether Officer Taylor had reasonable suspicion to detain Beck after informing him that he was free to go. While our disagreement with the district court is outcome determinative here -- we note the district court “barely” found reasonable suspicion to exist here.
Because the purposes of Officer Taylor’s initial traffic stop of Beck had been completed by this point, Officer Taylor could not subsequently detain Beck unless
events that transpired during the traffic stop gave rise to reasonable
suspicion to justify Officer Taylor’s renewed detention of Beck. Mesa ,
62 F.3d at 162. Thus, we must consider whether Officer Taylor had a
reasonable, articulable suspicion that Beck’s Buick was carrying contraband
or that other criminal activity may have been afoot. Terry ,
This court has summarized the standards used to consider whether reasonable suspicion exists as follows:
The standard of articulable justification required by the fourth amendment for an investigative, Terry -type seizure is whether the police officers were aware of "particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant[ed] suspicion that a crime [was] being committed." United States v. Martin , 706 F.2d 263, 265 (8th Cir. 1983); see also Terry ,392 U.S. at 20-21 ,88 S. Ct. at 1879-80 . In assessing whether the requisite degree of suspicion exists, we must determine whether the facts collectively establish reasonable suspicion, not whether each particular fact establishes reasonable suspicion. "[T]he totality of the circumstances--the whole picture--must be taken into account." United States v. Cortez ,449 U.S. 411 , 417,101 S. Ct. 690 , 695, 66 L. Ed.2d
621 (1981). We may consider any added meaning certain conduct might suggest to experienced officers trained in the arts of observation and crime detection and acquainted with operating modes of criminals. See United States v. Wallraff , 705 F.2d 980, 988 (8th Cir. 1983). It is not necessary that the behavior on which reasonable suspicion is grounded be susceptible only to an interpretation of guilt, id .; however, the officers must be acting on facts directly relating to the suspect or the suspect's conduct and not just on a "hunch" or on circumstances which "describe a very broad category of predominantly innocent travelеrs." Reid v. Georgia , 448 U.S. [438] at 440- 41, 100 S. Ct. [2752] at 2754 [65 L. Ed. 2d 890 ]; United States v. Sokolow ,831 F.2d 1413 (9th Cir. 1987), [rev'd on other grounds, 490 U.S. 1,109 S. Ct. 1581 ,104 L. Ed. 2d 1 (1989)].
United States v. Campbell ,
Here, the government contends that reasonable suspicion for Beck’s
renewed detention arose from the following seven circumstances: (1) Beck
was driving a rental car which had been rented by an absent third party; (2)
the Buick was licensed in California; (3) there was fast food trash on the
passenger side floorboard; (4) no visible luggage in the passenger
compartment of the automobile; (5) Beck’s nervous demeanor; (6) Beck’s trip
from a drug source state to a drug demand state; and (7)
*14
Officer Taylor’s disbelief of Beck’s explanation for the trip. While we are
mindful that "conduct which would be wholly innocent to the untrained
observer . . . might acquire significance when viewed by an agent who is
familiar with the practices of drug smugglers and the methods used to avoid
detection," United States v. Wallraff ,
We need not tarry long with the government’s first factor. We hold that there was nothing inherently suspicious in Beck’s use of a rental vehicle, even though rented by a third person, to travel. Wood , 106 F.3d at 947 (finding that the defendant's use of a rental car was not inherently suspicious). Beck told Officer Taylor that his wife had rented the Buick for him. The rental agreement checked out. Indeed, Officer Taylor testified at the suppression hearing that he had no reason to suspect that Beck’s explanation was untrue. Tr. at 26.
We combine for analysis the government’s second and sixth reasons since both focus on the fact that the Buick was coming from California, a purported “source state” for drugs. Officer Taylor testified that he thought it important that Beck was traveling from a drug source state and traveling to a drug demand state. Tr. at 22. The criteria employed by Officer Taylor to impart that title on a particular state was unexplained. Indeed, Officer Taylor testified that he considered not only California to be a drug source state, but also Arizona, Texas, New Mexico, Florida, and Louisiana. Tr. at 22.
This court has previously held that out-of-state plates are consistent with
innocent behavior and not probative of reasonable suspicion. See Ramos , 42
F.3d at 1163. While we do not suggest that geography is an entirely
irrelevant factor, see Sokolow ,
through there for pleasure or lawful business. Clearly, the vast number of individuals coming from that state must relegate this factor to a relatively insignificant role. Indeed, Officer Taylor conceded at the suppression hearing that interstate motorists have a better than equal chance of traveling from a source state to a demand state. Tr. at 23. We conclude, in the circumstances of this case, that no specific, articulablе basis warranting a reasonable belief that Beck’s Buick contained contraband can be gleaned from the mere fact that Beck’s Buick was registered and licensed in California. Here, this circumstance is an extremely weak factor, at best, to suspect
2 According to the United States Bureau of the Census, as of July 1, 1997, with a population of 32,268,000, almost one in every eight Americans is a resident of California. When the populations of the other “source states” identified by Officer Taylor are considered, the number rises to 76,998,000, or more than one-fourth the United States’ population of 267,636,000. United States Bureau of the Census, http://www.census.gov/statab/ranks/pr01.txt. *16 3
criminal activity. See Karnes , 62 F.3d
3
A review of case law reveals that law enforcement officers have not only
purported to identify a number of supply states, but also a significant number of the
largest cities in the United States as "drug source cities."
Reid v. Georgia
, 448
U.S. 438, 440 (1980) (agent identified Fort Lauderdale as drug source city);
United
States v. Scarborough
,
(continued...)
*17
at 495 (holding that because Florida was not the only "known drug center,"
the fact that defendant was from Florida could not be a factor supporting
reasonable suspicion); United States v. Dennis ,
We also conclude that the mere presence of fast-food wrappers in the
Buick is entirely consistent with innocent travel such that, in thе absence
of contradictory information, it cannot reasonably be said to give rise to
suspicion of criminal activity. Wood ,
The government also points to the fact that Officer Taylor observed no luggage in the passenger compartment of the Buick. Because it is eminently reasonable to store luggage in the trunk of an automobile when traveling, we think that this circumstance
3 (...continued)
source city), ,
fails to generate any suspicion of criminal activity. Indeed, motorists are specifically advised by law enforcement agencies, as a crime prevention tip, 4 not to leave their luggage in view.
Yet, another factor put forward by the government justifying Beck’s
renewed detention was Officer Taylor’s subjective assessment that Beck was
nervous during the traffic stop. It certainly cannot be deemed unusual for
a motorist to exhibit signs of nervousness when confronted by a law
enforcement officer. See Wood , 106 F.3d at 947 (“It is certainly not
uncommon for most citizens--whether innocent or guilty--to exhibit signs of
nervousness when confronted by a law enforcement officer.”). Officer Taylor
himself testified that in approximately twenty-five percent of the traffic
stops he conducts the detained motorist is at least as nervous as Beck was
here. Tr. at 29. Furthermore, Officer Taylor had never previously met Beck
and therefore had no measure by which to gaugе Beck’s behavior during the
traffic stop with his usual demeanor. We conclude that any suspicion
associated with Beck’s nervous demeanor during the traffic stop to be, at
best, minimal. United States v. Barron-Cabrera ,
4 A casual search on the Internet reveals numerous police department web cites which warn motorists to keep their valuables out of sight and locked in the trunk. See C RIME P REVENTION T IPS , T IPS ON S TAYING S AFE I N Y OUR C AR , http://www.our- town.com/spd/prevent1-29-97.htm; C RIME P REVENTION V ACATION S ECURITY , http:// www.aegisinc.com/aegisinc/cp/cp08-01.htm; B USINESS T RAVEL , S AFETY T IPS , http://www.city.palo-alto.caus/palo/city/police/vacation.htm; V ACATION S AFETY T IPS , http://www.absuci.edu/depts/police/safetytips/vacation.htm.
F.3d 1517, 1521 (10th Cir. 1993) (in turn quoting United States v. Hall , 978
F.2d 616, 621 n.4 (10th Cir. 1992)); Wood ,
Lastly, the government directs us to Officer Taylor’s subjective
disbelief of Beck’s reason for his travels. Officer Taylor did not believe
that a truck driver would travel across the United States to procure
employment given the number of employment opportunities for truck drivers
that lay in between California and North Carolina. Although unusual or
suspicious travel plans may give rise to reasonable suspicion, see Wood ,
Finally, we conclude that the constitutionality of Beck’s renewed
detention and resulting search cannot be saved by the government’s
incantation that: “‘[A] series of acts that appear innocent, when viewed
separately, may warrant further investigation when viewed together.’”
Bloomfield ,
III. CONCLUSION
Accordingly, because Officer Taylor’s renewed detention of Beck and
the Buick was without reasonable suspicion, the evidence of drug trafficking
obtained during Beck’s renewed detention was tainted by the unlawfulness of
that detention and should have been suppressed. See Wong Sun v. United
States ,
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH