Lead Opinion
Before: EBEL, HENRY, and BRISCOE, Circuit Judges.
The appellee’s petition for rehearing and suggestion for en banc consideration is denied.
The panel voted to deny rehearing with Judge Briscoe dissenting.
A poll was requested on the en banc suggestion. Voting in favor of en banc rehearing were Judges Tacha, Baldoek, Briscoe and Murphy. Voting against en banc rehearing were Chief Judge Seymour and Judges Porf-ilio, Anderson, Brorby, Ebel, Henry and Lucero. Judge Kelly did not participate.
Because a majority of the circuit judges who are in regular active service voted to deny the petition for rehearing en banc, that petition is denied.
OPINION
Defendant-Appellant Robert Salzano (“Mr.Salzano”) appeals the district court’s denial of his Motion to Suppress Evidence. Because the district court erred in refusing to grant Mr. Salzano’s motion, we reverse the district court’s ruling and remand the case with instructions that the evidence be suppressed.
Background
On December 20, 1996, Kansas Highway Patrol Trooper John Guerrero (“Trooper Guerrero”) stopped Mr. Salzano, who was driving a motor home along 1-70, for straying onto the shoulder. Trooper Guerrero suspected that Mr. Salzano might be falling asleep or intoxicated. At the stop, Mr. Sal-zano produced a valid driver’s license. Trooper Guerrero asked Mr. Salzano if the vehicle belonged to him; when Mr. Salzano indicated that the motor home was rented, Trooper Guerrero asked to see the rental agreement. Mr. Salzano invited Trooper Guerrero into the vehicle while Mr. Salzano searched for the rental agreement. Upon entering the vehicle Trooper Guerrero noticed the smell of evergreen, which he attributed to the presence of a natural evergreen wreath hanging in the vehicle. He also noticed the smell of a dog that was traveling with Mr. Salzano. As Mr. Salzano handed him the rental papers, Trooper Guerrero noticed that Mr. Salzano “seemed a little nervous. His hands were shaking as he handed [Trooper Guerrero] the paper.”
In response to Trooper Guerrero’s questions as to his travel plans, Mr. Salzano indicated that he was on vacation and was driving from San Diego, California, to Springfield, Massachusetts, to visit his father. In response to Trooper Guerrero’s questions about the relative expense of renting a motor home to drive across country, compared to flying or renting a smaller vehicle, Mr. Salzano,replied that he planned to drive his father back to California and that they might visit some friends in South Dakota. Trooper Guerrero noted that the rental papers handed him by Mr. Salzano indicated that a party of three would be traveling in the motor home, but Mr. Salzano was traveling alone.- Trooper Guerrero did not question Mr. Salzano about this. Mr. Salzano indicated to Trooper Guerrero that he was married; Trooper Guerrero asked Mr. Salza-no why he was traveling without his wife, to which Mr. Salzano replied that she could not get time off from work.
Trooper Guerrero performed a number of intoxication tests on Mr. Salzano, all of which were negative. Trooper Guerrero returned Mr. Salzano’s paperwork and issued him a verbal warning about the hazards of driving while sleepy. He then asked if he could search the vehicle for drugs. Mr. Salzano refused to consent to the search. Trooper Guerrero called for a drug dog team, which arrived on the scene approximately 27 minutes later. When the drag dog alerted, officers searched the vehicle and found approximately 494 pounds of marijuana.
Mr. Salzano was indicted for possession with intent to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). He moved to suppress the seized evidence on the basis that it was obtained-as the result of an unlawful seizure. The district court, without making any factual findings, denied the motion. Mr. Salzano then entered into a conditional guilty plea, reserving the right to appeal the district court’s denial of his motion to suppress. Be
Discussion
An investigative stop that was neither consensual nor the result of probable cause must fulfill two requirements: (1) the stop must be “ ‘justified at its inception,’ ” and (2) the resulting detention must be “ ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ ” United States v. Shareef,
Mr. Salzano does not contest the justification for the stop. Rather, Mr. Salza-no claims that once Trooper Guerrero terminated the traffic stop by handing Mr. Salzano his paperwork, Trooper Guerrero lacked a reasonable suspicion of criminal activity necessary to justify detaining him further. We must review the factors enumerated by Trooper Guerrero, both individually and in the aggregate, and determine whether, under the totality of the circumstances, those factors give rise to a reasonable suspicion of criminal activity. See United States v. Wood,
At the suppression hearing, the government relied upon the following factors as support for the reasonableness of Trooper Guerrero’s suspicion that criminal activity was afoot: (1) Mr. Salzano’s uneconomical decision to travel across the country in an expensive motor home at a rental cost of $3,900 and a fuel cost of approximately $1,000; (2) the discrepancy between the number of persons stated on the rental agreement and the fact that Mr. Salzano was traveling alone; (3) the size of the motor home and the knowledge that such motor homes are often used to haul large quantities of drugs; (4) Mr. Salzano’s visible nervousness while handing Trooper Guerrero the rental papers; (5) the smell of evergreen in the vehicle; and (6) Mr. Salzano’s statement that he had come from California. We analyze each of these factors separately, and then look at them in the aggregate to deter
First, this court held in Wood that the decision to take the time and expense to drive, rather than fly or use some other mode of transportation, cannot support a reasonable suspicion of criminal activity, even when it would seem to make more sense financially to choose an alternative form of transportation and even when the defendant states that he is not currently employed. “There is nothing criminal about traveling by car to view scenery.... Moreover, temporary unemployment does not mean that vacations are financially unattainable. [The defendant] may have saved money for the trip; he may have been the donee of a wealthy relative or acquaintance; he might have won the lottery or not yet exceeded the credit line on his VISA card.” Wood,
Here, Mr. Salzano indicated to Trooper Guerrero that he had taken vacation time and had chosen to drive across the country to visit his father and potentially bring him back to California. Mr. Salzano also said that he had plans to stop off in South Dakota on the way back to visit friends. In addition to the possibilities forwarded by this court in Wood, perhaps Mr. Salzano saved his money and vacation time just for this trip; his father may have preferred to drive rather than to fly; indeed, Mr. Salzano’s father may have promised to help share the expenses generated by the rental and fueling of the motor home. Moreover, Mr. Salzano may have chosen to travel by motor home in order to save on lodging costs, to avoid the hassles of finding accommodations that accept large pets such as his dog, and to enable him and his father to visit relatively out-of-the-way locales where temporary lodging is not readily available.
The government asks us to rely upon a decision by the Eighth Circuit, United States v. Pollington,
Similarly, the government’s assertion that large motor homes have been used by drug runners to haul large quantities of drugs does not support a reasonable suspicion that this individual might be so engaged.
The government next points to the fact that the rental agreement produced by Mr. Salzano indicated that three persons would be traveling in the motor home, but that Mr. Salzano, when stopped, was traveling alone. The notation of three persons on the rental agreement is consistent with Mr. Salzano’s stated travel plans. He told Trooper Guerrero that he was traveling to Massachusetts for the purpose of possibly bringing his father back with him to California, and then stopping off to visit some friends in South Dakota on the way back. It is possible that when he rented the motor home, Mr. Salzano envisioned that the vehicle would eventually be occupied by three persons: himself, his father, and a South Dakotan friend. In the alternative, perhaps Mr. Sal-zano had planned to drive to Massachusetts with his wife, in which case his father would be the third person. Trooper Guerrero only knew that Mr. Salzano’s wife was not traveling with him because she could not get the time off from work. Perhaps her vacation was canceled at the last moment or perhaps she was planning on flying out to Massachusetts to join Mr. Salzano and his father for the trip back. Whatever the ease, the discrepancy between the stated number of occupants on the motor home rental agreement and the actual number occupying the vehicle at the time of the stop can readily be explained and is “so innocent or susceptible to varying interpretations as to be innocuous”; as with the preceding two facts, it must be dismissed. See Wood,
As for Mr. Salzano’s apparent nervousness when handing over the rental agreement, we have “repeatedly held that nervousness is of limited significance in determining reasonable suspicion and that the government’s repetitive reliance on ... nervousness ... ‘must be treated with caution.’ ” United States v. Fernandez,
The government did not show that Mr. Salzano exhibited signs of nervousness beyond those normally anticipated during a citizen-police encounter. Trooper Guerrero testified that Mr. Salzano’s hands were shaking more than the Trooper usually sees during traffic stops, but we must discount that evidence due to the fact that Trooper Guerrero did not know Mr. Salzano, thus he had no basis upon which to contrast Mr. Salzano’s “behavior during the traffic stop with his usual demeanor.” Id. Moreover, after noting the shaking of Mr. Salzano’s hand, Trooper Guerrero interacted at some length with Mr. Salzano, having a chance to observe Mr. Sal-zano close up as he as he administered the intoxication tests and questioned Mr. Salzano about his travel plans. It is significant that despite this rather lengthy interaction, including some amount of questioning in the patrol car, Trooper Guerrero testified that the only sign of nervousness exhibited by Mr. Salzano was a shaking of the hands as he handed Trooper Guerrero the rental papers, behavior that made Mr. Salzano appear, in Trooper Guerrero’s words, “a little nervous.”
As for the smell of evergreen noted by Trooper Guerrero, we agree with the government’s assertion that a strong odor may give rise to reasonable suspicion on the part of law enforcement officials that the odor is being used to mask the smell of dings. See, e.g. United States v. Villa-Chaparro,
Finally, the government argues that Trooper Guerrero was reasonable in suspecting that Mr. Salzano was transporting drugs because he told Trooper Guerrero that he had come from California. Trooper Guerrero testified that his suspicions were aroused at the time of the stop because “California ... [is] a source state for narcotics.” However, the government offered no evidence to support the assertion that vehicles coming from California are any more likely to contain drags than those coming from Texas, Arizona, New Mexico, or any other western state. As we suggested in Wood, the mere fact that one hails from a state known for drug trafficking is not sufficient to support reasonable suspicion unless the detainee is attempting to conceal the fact that he had come from a drug source area. See id. at 947. Mr. Salzano did not attempt to conceal the fact that he came from California, nor did he give inconsistent statements as to which city he started in, where he was going, or what the purpose was of his trip. So long as the detainee provides a consistent statement from whence he came, the mere fact that he comes from California, or even San Diego, is not a reasonable basis to suspect that he is carrying drugs or other contraband.
At oral argument, the government strenuously reminded this court that in reviewing a law official’s justification for suspicion of criminal activity we must review the factors relied upon by the officer both individually and in the aggregate. Of course, it is correct that the individual factors must be considered in the aggregate and in the context of the totality of the circumstances. However, as so considered, we conclude that Trooper Guerrero did not possess a reasonable suspicion of criminal activity. See Id. (“Although the nature of the totality of the circumstances test makes it possible for individually innocuous factors to add up to reasonable suspicion, it is ‘impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration
Conclusion
For the reasons stated above, the district court’s denial of Mr. Salzano’s motion to suppress the seized evidence is REVERSED and the case REMANDED for further proceedings not inconsistent with this decision.
Notes
. The government quotes the Supreme Court in California v. Carney,
. Indeed, on cross examination, Trooper Guerrero admitted that the mere size of the vehicle in and of itself did not seem unusual to him, but rather it was the fact that Mr. Salzano was traveling alone in such a large vehicle that made him suspicious.
. Upon searching the motor home, officers found that evergreen boughs had been placed on top of the marijuana, ostensibly in an effort to mask the smell. However, because Trooper Guerrero did not indicate that the smell of evergreen was incongruent with the presence of the wreath in the vehicle, the presence of evergreen with the contraband, which was only discovered as a result of the search, does not support Trooper Guerrero’s claim of reasonable suspicion.
. Because we so conclude, we need nol address the issues regarding sentencing raised by Mr. Salzano on appeal.
Dissenting Opinion
dissenting.
I respectfully dissent. In my view, Trooper Guerrero had reasonable articulable suspicion which justified his detention of Salzano. I would affirm Salzano’s conviction, but remand for further factfinding on the “safety valve” issue he raises.
In an appeal from the district court’s denial of a motion to suppress, findings of historical fact are reviewed only for clear error, but whether the historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion is a question of law subject to de novo review on appeal. Ornelas v. United States,
An investigative detention short of full arrest must be supported by reasonable articu-lable suspicion — a particularized and objective basis for suspecting the person stopped of criminal activity. United States v. Cortez,
In evaluating the validity of an investigative detention, the courts must consider “the totality of the circumstances — the whole picture.” Id. at 8,
Wholly lawful conduct may justify suspicion of criminal activity. Factors which are not by themselves proof of illegal conduct and are consistent with innocent travel may, taken together, amount to reasonable suspicion. Sokolow,
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about*1116 human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
Cortez,
The majority relies on United States v. Wood,
By the very nature of the question presented, all factors relied on to establish reasonable suspicion are ambiguous and consistent with either innocent or criminal activity. Factors such as masking odors, implausible and inconsistent travel plans, and nervousness are all inherently ambiguous and could be consistent with either innocence or with transportation of drugs. Masking odors are chosen because they could have an innocent explanation such as the spilling of laundry detergent. There also could be innocent explanations for implausible and inconsistent travel plans. If a factor offered to support reasonable suspicion is not ambiguous, such as an officer directly seeing or smelling drugs, the factor would support a finding of probable cause and reasonable suspicion would no longer be the question. See, e.g., United States v. Nielsen,
We must be cautious in applying Wood and Lee and reject only those factors that are wholly innocent and those that do not suggest criminal activity at all, such as the fast food wrappers and maps in Wood. If a factor can be discounted simply because we can supply an innocent explanation for it, there would never be reasonable suspicion because all factors (short of those which would supply probable cause) can be discounted.
I question whether nervousness can be rejected outright. While nervousness is so common among persons stopped for traffic violations that it does not provide significant support for suspicion of more serious criminal activity, we have recognized nervousness as one of the totality of circumstances that can provide some support for reasonable suspicion. See, e.g., United States v. Soto-Cervantes,
The majority totally discounts Salzano’s nervousness because Trooper Guerrero had no prior acquaintance with him. While we have suggested in several cases that officers’ generic claims of nervousness are of little weight where the officer does not know the stopped driver, see Wood,
Further, Salzano’s implausible travel plans were neither innocuous nor insignificant. The rental agreement showed the rent for the R.V. was $3,900 and Salzano told the officer the R.V. got 6.7 miles per gallon. While there could be many innocent explanations for the use of such an expensive means for one person to travel across the United States, it was so unusual that it is a legitimate factor supporting suspicion of drug trafficking. Cf. Sokolow,
I would also conclude the evergreen odor cannot be discounted outright. While the use of pine or evergreen as a masking odor was new to the officer, he was aware drug couriers use a variety of masking agents. See Villa-Chaparro,
The evergreen odor, combined with Salza-no’s nervousness and his use of an unusually expensive means for one person to travel across the United States in the winter, were sufficient to establish reasonable suspicion that he was transporting drugs. Cf. United States v. Mendez,
As a consequence of concluding Salzano’s detention was supported by reasonable suspicion, I would address Salzano’s sentencing issues and conclude only his “safety valve” issue has merit and remand for further fact-finding and potential resentencing.
Salzano contends he was entitled to a reduced sentence under the “safety valve” provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1 .2. Under the “safety valve” provision, the statutory minimum sentence for certain drug crimes is inapplicable if the court finds the defendant has a minimal criminal history, did not use or threaten violence, possess a dangerous weapon, cause death or serious bodily injury, was not a leader, organizer, or
A defendant bears the burden of proving the applicability of the safety valve provision by a preponderance of the evidence. United States v. Verners,
Salzano presented expert evidence that it is likely a courier would not know the drug recipient’s identity and would not necessarily know in advance the details of the delivery. Couriers are told only what they need to know. Typically, a courier is told to drive to a specific location and to wait, or the courier is given a phone number to call upon arrival at a destination city for instructions. Lack of evidence of phone calls to the east coast indicates Salzano did not know the recipients, and lack of evidence of unexplained wealth or prior involvement in drug distribution indicated Salzano was a mere courier with no ownership interest in the drugs.
The government took the position that Sal-zano’s statement at his presentence debriefing that he did not know the recipients was inconsistent with statements made to the officers on the day of his arrest. In the only specific finding of fact on the issue, the district court agreed. However, Salzano did not make inconsistent statements. His statements to the officers on the day of his arrest show only he knew enough about the recipients to be afraid they would kill him or his family if they learned he cooperated. He may have been warned by the source or may have simply made a reasonable assumption. Nor do his statements that he would carry out a controlled delivery if he got a “real good deal” from the government show he knew the recipients because it is common for couriers not to know the identities of recipients.
Because the only finding of fact supporting the conclusion that Salzano did not disclose everything he knew about the crime was clearly erroneous, I would remand for further factfinding on the question of whether the safety valve provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 applies in this case.