*1 particularly puzzling this is that Making adopted opposite pre- rule —a
we have
sumption against vesting context —in employment agreements that are not
collectively bargained. Sprague See v. Corp., Motors
Gen. banc)
Cir.1998) (en (“To vest benefits is
render them forever unalterable. Because
vesting plan welfare is not benefits re- law,
quired employer’s an commitment
to vest benefits is not to be such inferred
lightly; intent vest be must found plan documents and must stated in be (internal express language.”)
clear and omitted).
quotation might marks One thought apply that we would or, settings in both we
same rule if were to scales, just
put thumb on one of the we only employee
would do where the so did negotiating
not have the benefit of a union
the contract. inference, point that the salient as shows,
this has pre- case well become a
sumption. say And we should either doing
is what we are spare future —and
panels, litigants the district courts and
confusion the inference has created —or altogether.
abandon the inference America,
UNITED STATES
Plaintiff-Appellee, URRIETA,
Jose Eduardo Defendant-
Appellant.
No. 07-5431. Appeals,
United States Court of
Sixth Circuit.
Argued: Jan. 2008.
Decided Filed: March 2008. *2 Holley,
ARGUED: Michael C. Federal Nashville, Office, Public Defender’s Ten- nessee, D. Appellant. Courtney for Trombly, ASSISTANT UNITED ATTORNEY, Nashville, STATES Tennes- see, BRIEF: Michael Appellee. for ON Small, Holley, Ronald Federal Pub- C. C. Office, Nashville, lic Defender’s Tennes- Hannafan, see, Appellant. for Brent A. Attorney, Assistant United States Nash- ville, Tennessee, Appellee. GUY, GILMAN, Before: McKEAGUE, Judges. Circuit J., GILMAN, opinion delivered the court, J., GUY, joined. in which J., McKEAGUE, 579-84), (pp. delivered a dissenting opinion. separate OPINION GILMAN, LEE RONALD Circuit Judge. appeals
Jose Eduardo Urrieta the dis- sup- trict court’s denial of his motion to press During evidence. routine traffic Lee detained stop, Sheriff reasonably beyond the time neces- citation, sary primarily because issue mistakenly the officer believed that Urrie- ta was not allowed to drive Tennessee with a Mexican driver’s license. that, during Young claims the course stop, the traffic he became suspicious that the vehicles fully packed, the Urrieta was transporting drugs. Eventu- deputy asked Urrieta: moving?” ‘Y’all ally gave Deputy Young written responded that he was moving consent to search his deputy vehicle. The from California and going to Atlanta. *3 discovered drugs, no but found three hand- Over the course of the stop, however, Ur- guns and several fraudulent identification eventually rieta explained that his ultimate Finding cards. Deputy that Young had a destination was Beach, West Palm Florida. to extend the deten- Deputy Young noted that Urrieta was and tion that Urrieta’s consent was volun- smiling and friendly, but that pas- the two tary, district denied Urrieta’s sengers in the car did not eye make con- suppress. motion to For the reasons set with him tact appeared and nervous. The below, forth we judgment REVERSE the officer also noticed that Montes was wear- of the district court. ing a waitress’s shirt. Urrieta produced a Mexican driver’s li- I. BACKGROUND cense and temporary registration papers background
A. Factual from California for the Navigator. The August 2006, Urrieta, On girl- Navigator registered was Montes, to but Maria Montes, friend Ramirez registration and her had expired February in sixteen-year-old traveling son were six east- months earlier. Urrieta then on produced bound 24 in Interstate Tennessee. Ur- paperwork additional showing was driving rieta a 1998 Lincoln Navigator registered Honda was in his an expired with temporary registration name. tag Deputy Young told Urrieta that he was towing and a 1987 Honda sedan could not drive in Tennessee using a Mexi- means of a hоmemade towbar. Both can driver’s vehi- license unless he had a valid fully packed. cles passport, At approximately asked Urrieta if he “legally p.m., 1:45 Deputy Young, an country,” officer in the with and him instructed to the Rutherford County search Interstate his fully packed Crime car to find his Unit, Enforcement passport. on stationed Inter- 24. state Deputy Young was trained in At approximately p.m., 1:53 Deputy using drug-sniffing dogs, interdiction, in Young to returned his vehicle and called in using and highway traffic stops as a El (EPIC) Paso Intelligence Center means to ferret out secondary concealed determine if Urrieta was in legally day crime. On the question, a trained country. provides information EPIC on drug-sniffing dog was in Deputy Young’s licenses, drivers’ registrations, car patrol car. Deputy Young witnessed Ur- whether an individual has the bor- crossed
rieta’s car “swerving” lanes, between de- der at a checkpoint, was deported, or is it, cided to follow notiсed under federal investigation. 2:04 p.m., At Navigator did not registration have valid reported EPIC Deputy Young that sticker and that taillights on the Hon- there was no information in system on da basis, were not working. On that Dep- Urrieta, Montes, or their vehicles. The uty Young pulled Urrieta over to the side lack of suggested information that Urrieta of the road. and Montes not had entered the
The entire stop captured traffic on legally, but confirmed also had Deputy video. Young approached Urrie- not been previously deported. This sig- ta’s car at p.m. 1:49 requested to see nificant illegal reentry because after de- Urrieta’s driver’s Upon license. noticing portation only is the immigration violation “sure,” at which responded car. Urrieta authority to had Young a con- handed Urrieta Young point
enforce. gave form him that the and told form sent Dep- report, the EPIC waiting While search the permission law enforcement citation for Ur- wrote uty Young then Young illegal items. car for committed rieta, that Urrieta noting and to the form to read over told Urrieta violation, taillight a lane offenses: three he wanted Urrieta it, stating that sign violation. registration violation, and form The consent doing.” I’m “know what backup from called for then and stated Spanish English and inwas officers, wanted to stating he other promises, that no further state “I part: the vehicles. search coercion threats, force, or mental physical *4 Young returned to Deputy p.m., At 2:07 have been used any kind whatsoever of of a series him and asked ear Urrieta’s to consent the get me to me to against his im- about questions approximately sign or to this described above search job, status, plans, and moving migration form.” Young did not Deputy history. criminal scene and at the officer arrived Another his driv- or return a citation issue Urrieta speak with over to Young walkеd Deputy Deputy response to In license. er’s approached then two officers him. The evasive Urrieta was Young’s questions, to began and, new officer car and the into the Urrieta’s he came about Deputy Young while change Montes began question to his according Young, to filled out had stat- Urrieta. Urrieta spoke with plans. his Urrieta travel story about Mexico, form, for gave consent back” “going consent that he ed only the Honda. only for in to search stay Atlanta the officer planned that he time, finally to Urrieta explained then then and period of a short Navigator Florida. going to to search he was he wanted that explained put worked him “to ’98 girlfriend too, just that his instructed also stated and He complied En- speak did not Urrieta Wendy’s, she on there.” Navigator’ steady did not have that he and amended Young’s and instructions glish, with “98 Nav.” At notation work. include the form to Depu- stop, an into p.m., half hour 2:19 if Urritea Young asked When began to the other officer Young and ty passport, said had a Urrieta girlfriend uncov- Navigator. The search search the Although Urrieta did not know. that he fraudulent and several firearms ered three a tourist that he had asserted originally passport cards. identification questioning further visa, upon he admitted by police in vehicle was discovered only passport. had he subsequent in a search. his crimi- asked Young then Urrieta he history, and Urrieta said nal background B. Procedural having any ille- denied also none. Urrieta car. In in guns loaded gal drugs 2006, grand jury a federal August of In however, questioning, to further response against indictment a two-count returned did not Young that he told Urrieta posses- being an alien for had “ever” been if sure there know for firearms, 18 U.S.C. in violation of of sion car, did not he but stated that drugs in the of possession §§ 922(g) “think so.” documents, in viola- identification unlawful 1028(a)(6). § U.S.C. tion of 18 p.m., Deputy 2:13
At approximately firearms, docu- suppress moved if he could search his Young asked Urrieta ments, and several incriminating perstein, state- 1224-25 Cir. 1983) ments. The district granted Urrie- (stating that the first question in a suppress ta’s motion to certain of the Fourth Amendment analysis is whether statements, but it seized). denied motion to the party was A seizure is unlaw suppress the evidence officer, obtained ful if an without a suspi (1) search after finding cion, “by means of physical force or show had a to detain authority Urrie- ... way some restraints] (2) ta p.m., after 2:07 Urrieta volun- the liberty of a Ohio, citizen.” Terry v. tarily consented to the search. U.S. n. 88 S.Ct.
entered a plea guilty (1968). conditional in Feb- L.Ed.2d 889 ruary of 2007 that preserved right parties in the present case do not appeal suppression ruling. The court dispute that Urrieta was “seized” during then year sentenced Urrieta to one and the entire encounter. We therefore turn day one in prison, follоwed years two question to the of whether Deputy Young supervised release. This timely appeal fol- had a reasonable suspicion to extend the lowed. stop.
II. ANALYSIS
suspicion
2. Reasonable
of criminal
activity
A. Standard of review
A law enforcement
may
officer
We
a district
review
court’s decision on
permissibly conduct an investigatory stop
a motion
suppress
evidence under two
when he or she has “a particularized and
“complementary
standards.”
United
objective” suspicion that
activity
criminal
Miller,
(6th
265,
States v.
314 F.3d
267
is afoot.
Cortez,
United States v.
449 U.S.
Cir.2002). The district court’s factual find-
411, 417-18,
690,
101 S.Ct.
The argues that a drug Urrieta was courier. As men- the following above, factors demonstrate government tioned the now con- Deputy Young had a suspicion reasonable cedes may legally that noncitizens drive on that Urrieta was in drug involved a crime: roads with a foreign Tennessee driver’s (1) cars fully packed were and he license and without a And passport. even (2) towing car, was a second Urrieta a if Urrieta’s Mexican driver’s license and (3) license, Mexican driver’s the Navigator produce his to passport failure his might (4) expired registration had an tag, provided have a suspicion reasonable to fit profile the of a drug courier because believe that an immigration violation had may be that Ur- officer’s suggests
occurred, factor neither fac include characteristics on based drugs. transporting rieta was as the long so profile, a from tors that Urrieta asserts also The dissent United by other evidence. accompanied a driver’s having valid lying was 8-11, Sokolow, 490 U.S. v. States But neither passport. and license (1989) (relying 104 L.Ed.2d S.Ct. produced have government the Young nor profile drug-courier in a on factors was either document any evidence pro in a factors contained noting that the in fact admitted at invalid. evidentiary independent may file looked аt hearing that he suppression the in the be considered weight and should license of Urrieta’s date expiration circum totality of the context suggested anything that not remember did be stances). should hesitate But courts un- was although And a problem. drug couri on the too much “rely[ing] fore fully in his passport to locate able it lists behavior profile er because Young demanded car packed legal activi perfectly can be attributed road, record shows side of it on the States ties, illicit ones.” United as as well discover- was later passport that Urrieta’s Dol Eighty-Two Fifty-Three Thousand v. expired Finally, Urrieta’s car. ed 245, 249 F.2d Currency, 985 lars U.S. unrepresenta- equally registration car v. (6th Cir.1993); see also United lapsed A activity. tive of additional 1221, 1227-29 F.2d Saperstein, for may reason tag be valid registration Cir.1983) of charac the use (questioning more, not, a valid without it is stop, but profile to drug-courier from the teristics drug crime is that a suspect reason suspicion). a reasonable establish underway. factors relies on three government that a further asserts The government consis- Young asserted that Deputy be- was established (1) Ur- drug-courier profile: tent with training and with his Young, cause (a traveling from California rieta suggesting factors identified experience, (2) Atlanta, drugs) to couri- source state profile fit the that Urrieta ner- appeared car be in the profiles, passengers how- drug-courier er. Standard (3) Navigator vous, value ever, because highly problematic are than greater category driving very large that Urrieta was often “describe towing. travelers, that he was who would the Honda the value of innocent presumably in turn. virtually random seizures each address factor We subject be that as little to conclude Court were the fact First, cites government justify a profile] could [as foundation California, a traveling from U.S. Georgia, Reid seizure.” state, As to Atlanta. this drug-source *8 (1980); 2752, 890 65 L.Ed.2d S.Ct. 100 noted, however, between travel court has Millan, 912 v. F.2d States see also United weak indi- relativity a centers population is Cir.1990) (8th (holding that the 1014, 1018 there is activity because cator of not es- by itself profile does drug-courier country could not in city the almost no suspicion); tablish reasonable articulable a major nar- a as either “charaeterize[d] be F.2d Carrasquillo, 877 v. United States city through a center or cotics distribution (same). (D.C.Cir.1989) 76 way to a pass on drug their couriers center.” narcotics distribution major say that factors is not to This Andrews, F.2d v. States by Dep United cited drug-courier profile from the (6th Cir.1979); also United see An weight. to no uty are entitled Young Townsend, 305 F.3d entirely Cir. is consistent with innocent behav- 2002) (holding trip that a Chicago, travelers, between among ior that, and holding Columbus, give Illinois does not Ohio without additional of wrongdoing, evidence to a reasonable rise nervousness is entitled to weight). no drugs); Saper traveler is transporting In present case, there is a clear stein, 723 F.2d at (holding that travel nondrug-related why reason pas- Urrieta’s from a city source is such innocent sengers were Deputy nervous. Young ad- that it weight behavior to little entitled mits that he suspected Urrieta and his analysis). Fourth Amendment girlfriend were in country illegally, populous is the most California state that he asked immigration-relat- numerous country, being the home of more than questions, ed and that he demanded to see people. 35 million Travel between Califor- passport. Urrieta’s immigration-re- The major nia and population Atlan- hub of lated focus of Young’s questioning ta, therefore, any does not significant easily add explains the nervous behavior of Ur- weight Young’s suspicion that girlfriend rieta’s sixteen-year-old her engaged Urrieta was in transporting son. Deputy Young acknowledged as drugs. although And the dissent notes much when he testified that often when that Urrieta’s travel between California “dealing Hispanics, with a lot of they time “relatively and Tennessee was of a quick ... are scared of police.” Under these duration,” we are as to why circumstances, unclear travel- the nervousness of Urrie- ing without interim stops sightseeing passengers ta’s a virtually nonexistent or other diversions is an drug indication of indicator of drug activity. activity. One would hardly expect a lei- government The suggests also that a surely pace of travel three people working-class family driving a Navigator moving are across fully in two towing while a less expensive suspi- car is cars,
packed
towing
one
the other.
cious.
It
*9
hide”); Andrews, 600
(refusing
F.2d at 566
stop August
of 2006. There is no
to consider nervousness in the reasonable-
why two working-class
reason
Mexican cit-
calculation
suspicion
because nervousness
izens could not afford such a vehicle.
stretches
immigration violation
than an
inherently sus-
nothing
Likewise,
there
far.
much too
Amendment
Fourth
vehicle on a
driving a newer
about
picious
an older
towing
trip while
cross-country
testimony at the
Young’s
Deputy
car.
con
further
hearing provides
suppression
relying
imper
on an
that he was
firmation
that al-
argues
government
Finally,
Urrieta, as
missible,
that
hunch
ill-defined
factors
profile-related
the above
though
immigrant
undocumented
presumptively
a
sup-
of themselves
may not in and
Mexico,
transporting
be
likely
was
from
detention, they
continued
Urrieta’s
ported
prohibits
Amendment
The Fourth
drugs.
a
Young with
provided
and un
an “inchoate
based on
detention
for further
to detain
”
‘hunch,’ suspicion or
particularized
in the context
considered
questioning
pro
law enforcement
requires
instead
immigra-
dishonesty about
of
facts” show
and articulable
“specific
vide
govern-
heart of the
At the
status.
tion
Terry v.
crime has occurred.
ing that a
that Ur-
assertion
argument is the
ment’s
21, 27, 30,
Ohio,
88 S.Ct.
engaged
drug
have been
might
rieta
(1968).
Yet
20 L.Ed.2d
lied to
he
running because
hearing that
suppression
at the
explained
Or,
country.
in the
legal
status
“up
was
to some
knew that Urrieta
he
it,
“gen-
put Urrieta’s
the district
as
way
“when I
same
as
thing” illegal
sta-
immigration
dishonesty” about his
eral
my
I look at
little
in the
walk
house
Young with a reason-
provided
tus
he has done some
boy, I know whether
“something
that
else”
able
district court dis
thing wrong.” The
car.
on in Urrieta’s
going
as irrelevant
missed the officer’s statement
calculation.
reasonable-suspicion
to the
however,
many as million
In
as
however, we find
contrary,
To the
legal
lacked
in the United
people
revealing as
quite
to be
Young’s statement
status,
million
whom
6.2
immigration
“hunch,”
a
very
definition
Hispanic
Pew
Mexico. See
from
a
suggests that he lacked
reason
strongly
Center,
Characteristics of
The Size and
drug
Urrieta was
able
Population in
Migrant
Unauthorized
The
extension was brief. A. Suspicion Reasonable To Detain analytical The framework assessing Chief Justice Earl Warren once wrote an investigative detention under Terry v. the “demand for specificity in the Ohio, 1, 1868, 392 U.S. 88 S.Ct. 20 L.Ed.2d upon police information which action is (1968), is a analysis two-part of the predicated is the central tеaching of this reasonableness of the stop. See United Court’s Fourth Amendment jurispru- Caruthers, States v. 458 F.3d Terry, dence.” 392 U.S. at n. Cir.2006). The question first is “whether S.Ct. 1868. The factors relied on there was a proper basis for stop, present case are simply vague too judged which is by examining whether the nonspecific support suspi- law enforcement officials were aware of drug running. reason, cion of For that we specific and articulable facts which gave uphold cannot the district highly court’s rise to reasonable suspicion.” Id. If the nonspecific finding that the extended de- detention is proper, question the second is justified tention was because “something “whether the degree of ... intrusion illegal might else” going been on in reasonably in scope related to the situation Urrieta’s car. Although we do not relish hand, judged by is examining the consequence of allowing person pos- reasonableness the offiсials’ giv- conduct sessing free, prohibited go items to we find en their suspicions and the surrounding unpalatable even more thought put- circumstances.” Id. This court has ex- ting stamp our of approval practice on the plained that: unlawfully extending the detention of Although the standard of review on the traffic violators based on nothing more ultimate reasonable inquiry is than an inchoate hunch. novo, de the district court at an insti-
tutional advantage, having observed the testimony of the witnesses and under- III. CONCLUSION conditions, standing local in making this Because we conclude that the extended Accordingly, determination. “due detention violated Urrieta’s Fourth weight” given should be to the infer- rights, Amendment we have no need to ences drawn from the facts “resident address the district finding court’s judges.” Urrieta’s later consent to the search was Townsend, United States v. 305 F.3d voluntary. judgment of the district (6th Cir.2002) (quoting Ornelas REVERSED, and all evidence States, 690, 698, United 116 S.Ct. acquirеd after p.m. 2:07 must be sup- (1996)). 1657, 134L.Ed.2d 911 pressed poisonous as the “fruit[] Specific 1. and articulable facts for Hill, tree.” United States v. (6th Cir.1999). This case is RE- MANDED to the district court for further Despite majority’s suggestion to the proceedings opinion. consistent with this contrary, the facts in the present case that
580 Urrieta, existed to here reasonable suspicion existed reasonable
support
v.
any
that were
event. See Whren
following facts
detain him
the
included
States,
806, 813,
Young when he finished
S.Ct.
United
to
known
(1)
(1996)
the
with EPIC:
p.m.
(“foreclos[ing]
call at 2:04
quick;
otherwise,
police
suggest
is to ask
To
lying about
defendant was
suggested
check
eye to what he or
officer to turn a blind
country
being in the
passport,
having
during the traffic stop.
she learns
validity of his Mexican
legally, and the
Cf.
Erwin,
v.
United States
license.
driver’s
(“To
(6th Cir.1998)
simply
have
sent Erwin
the “total-
facts under
Considering these
question
without brief further
way,
on his
test, Deputy Young
ity of circumstances”
least,
very
would
been
ing
have
for the brief de-
had
unreasonable,
inept, police
even
plainly
Ellis,
v.
States
tention. See United
work.”).
(6th Cir.2007)
(holding
F.3d
613-14
on a
suspicion existed based
acknowledge Deputy Young
I
had
While
factors). Which is to
of six
combination
authority to arrest
no
Montes
may
these
not
say,
any one of
facts
while
nei-
immigration
for an
violation because
own,
suspicion on its
amount to reasonable
had reentered the
ther
them
important-
they do. More
together
taken
call
indi-
illegally,
EPIC
nonetheless
analy-
ly,
totality of the circumstances
“M
Young.
Urrieta lied to
cated that
disсounting certain
prohibits
sis
us from
Therefore,
I
believe
because,
merely
separately,
factors
explore
untruths
ask-
entitled
those
expla-
‘an
innocent
potentially
could
questions.
additional
ing Urrieta some
”
(quoting
at 614
United
nation.’
Id.
immediately upon questioning,
266, 267,
Almost
Arvizu,
U.S.
(2002)).
appropriately
gave
answers
More-
totality of circumstances that established it Deputy Young’s While is true that here. Both indicated observations that “story” traveling the defendant’s Urrieta was the cars and his status in from a source state to a were untrue. distribution It implausibility passengers was the state and that the defendant’s ner- story registration about the not carry and the defen- vous are facts that a lot of dant’s lies about country weight, they his status do bolster rea- nonetheless that, part, led to believe sonable in combination with the Yet, acknowledge I suspicion. Soko factors. See United
other total of the that observation been sum 1, 10, low, 109 S.Ct. Young’s suspicions then (“A basis for (1989) sitting to deter L.Ed.2d 1 point would be well taken. On of reasonable mine the existence however, record, it clear present articulate the agent require must sup specific and articulable facts conclusion, but the to that leading factors Young’s suspi ported Deputy forth in may factors be set fact that these cion, supra. Accordingly, as discussed detract from not somehow ‘profile’ does is of no general isolated and statement seen evidentiary significance as their *13 thаt rea consequence to the determination noting It is worth agent.”). trained suspicion existed here. United sonable Cf. Young specifically mentioned Deputy 463, Wagner, Fed.Appx. v. 193 466 trip relatively quick duration of the (6th Cir.2006) (“The test for reasonable suspicion. his level of also raised detaining offi suspicion is not whether the regarding Young’s observation subjectively that the circum cer believes Naviga- in between the disparity value but suspicion, create a reasonable stances of are more indicative tor and the Honda particularized there is ‘a and ob whether Moreover, fact wrongdoing. this criminal wrongdo jective suspecting legal basis for weight light in given should be additional ” Arvizu, 273, (citing at ing.’ 534 U.S. that vehicles specialized knowledge of his 744)). S.Ct. bargaining chips drug- for are used as jobs. courier Reasonably scope 2. related in on one isolated as- emphasis I Because would find that reasonablе testimony regard- pect Deputy Young’s of existed, briefly I address the will description of how he knew ing general part analysis, namely, second in activi- engaged was that Urrieta stop ‘reasonably “whether the related herring. classic red See J.A. 89 ties is a scope justi in circumstances ” he knew that (Deputy Young explained place.’ fied the interference in the first something illegal in 363, Urrieta was involved Perez, United States (6th Cir.2006) I in the house way 20, in the same “when walk at (citing Terry, 392 U.S. my boy, 1868). I I know whether and look at little explained This court has S.Ct. something wrong”). The con- he has done that: makes Deputy Young’s
text statement investigative detention must be [A]n on this clear that defendant’s reliance temporary longer and no than is last refute that rea- statement as a means to necessary purpose to effectuate the is meritless. sonable existed stop. Royer, Florida v. 460 U.S. the isolated state- Deputy Young made 491, 500, 1319, L.Ed.2d 229 103 S.Ct. a question (1983). at the end of an answer to ment investigative means used in posed Earlier on cross-examination. should also be the least intrusive means Young provided answer same reasonably verify dispel available to specific supported suspicion, facts suspicions period the officer’s a short explained he also had those previously Supreme Id. The has time. Court he testimony, facts in his direct and later rejected rigid time limitation on the on re-direct. In- Terry stop, “empha- reiterated those facts lawfulness of a deed, the law en- the isolated statement sized the need consider by the Young’s attempt analogy purposes to draw an forcement to be served counsel, reasonably well as the time stop defense not the reason for his as purposes.” might needed to effectuate those While it seem odd that Sharpe, States v. a drug dog United in his patrol car 84 L.Ed.2d S.Ct. thаt he did not during stop, use Urrie- (1985). To whether a detention assess ta failed to raise this issue to the district justified an long was too to be as investi- similarly fails to raise it on gative stop, courts should “examine appeal Moreover, to this court. at the police diligently pursued suppression whether hearing, defense counsel investigation likely means of asked Deputy Young about having the dispel suspicions quick- confirm or their ear, 87-88, dog patrol see J.A. ly, during necessary which time it was inquire but did not why Deputy about detain the defendant.” Id. 105 Young dog did not use the during stop. S.Ct. 1568. record, On such an undeveloped it not this speculate court’s role to why (alteration original). Id. Deputy Young did not dog use the Here, the short amount of time the offi- disagree therefore I majority’s with the justified. cer detained Urrieta was In to- *14 “strongly conclusion that it suggests that tal, from the time the officer finished his he did not have a reasonable call at p.m. with EPIC 2:04 until the dеfen- Urrieta was transporting drugs.” gave dant his consent to search the vehi- verbally p.m., only cles at 2:13 9 minutes Accordingly, both because the time later, most, p.m. or at in at writing 2:15 relatively frame was short and the officer only passed. when 11 minutes had More- proceeding diligently, I would find over, both parties agree that the relevant that the detention of the defendant did not less, in question actually time is somewhat impermissibly expand scope of the Ter- p.m. from 2:07 should ry stop. able been to return to Urrieta after call and EPIC issue the citation until Voluntary B. Consent p.m., only 2:13 amounting to 6 minutes of I Because would find suspi- detention when gave Urrieta his verbal Urrieta, briefly cion existed to detain I will consent, most, p.m., or 2:15 a mere 8 address the district court’s finding gave minutes of detention when he Urrieta’s consent to search the vehicle was
written consent. voluntary. more, approximately What 3 minutes The determination of “whether а con- EPIC, after the call finished with and al- ‘voluntary’ sent to a search was in fact or immediately upon Deputy Young’s most product was the of or ... duress coercion Urrieta, re-questioning of his answers bol- question is a of fact to be determined from Deputy Young’s grounds stered for rea- totality all the circumstances.” provided sonable support Bustamonte, Schneckloth v. Therefore, the additional brief detention. (1973). 36 L.Ed.2d S.Ct. only the defendant was detained for min- Accordingly, “the district decision court’s utes when officer had additional infor- regarding consent will not be overturned supported mation that suspi- clearly it unless erroneous.” United Furthermore, cion. appeared the officer Bueno, States v. F.3d diligent otherwise in pursuing his investi- Cir.1994) (citation omitted). Indeed, gation. the defendant does not any suggestion contrary voluntary, raise to the To if determine consent was that respect. totality district court must look at the and examine the follow- court’s conclusion that Urrieta’s consent circumstances and ed- age, intelligence, voluntary clearly “the was not erroneous.
ing factors:
individual; whether the indi-
ucation of the
For all of the aforementioned reasons
right
to refuse to
vidual understands
and those discussed
the well-reasoned
consent;
the individual under-
whether
opinion,
district court
see United States v.
rights;
constitutional
stands his or her
Urrieta,
3:06-00154,
No.
2007 WL
detention;
nature of
and the
length and
(M.D.Tenn.
24, 2007),
*1
given
Jan.
punishing
use of
conduct
coercive
circumstances,
totality of the
I would find
Worley,
police.” United States
that reasonable
existed to detain
(6th Cir.1999) (citation omitted).
380, 386
period
the defendant for the
after the
brief
that,
argues
permitting call and before the
results
EPIC
search,
acquiescing
he was
voluntary consent to search the vehicles
Young’s authority
giving
rather than
vol-
and therefore
the defendant’s Fourth
untary
contrary,
To the
the dis-
consent.
See,
rights
Amendment
were not violated.
trict
found that
consent
(“While
Ellis,
e.g.,
pro-
him that he also wanted to search the
Navigator.
There is also no evidence that
Young attempt- ever threatened Urrieta or
ed him giving to coerce into his consent to contrary,
the search. To the a review of stop video reveals that polite courteous to Urrieta passengers during stop.
and his the entire
Accordingly, I would find that the district notes Young’s explana- government suggests next that the tion that training led him to believe “nervousness” of passengers Urrieta’s con- that the Navigator might have been a Deputy Young’s tributed to suspicions of “bargaining chip” for drug-courier job. illegal activity. Although nervousness Before completion of the initial stop traffic be may part considered as p.m., however, overall at 2:07 only information giving circumstances to a rise the econom- this court suspicion, has found nervousness status of ic Urrieta and his passengers was inherently unsuspicious, and has therefore his observation that girlfriend given very it limited or no weight uniform, wearing a waitress that all of See, reasonable-suspicion e.g., calculation. passengers likely Hispanic ori- Richardson, United States v. gin, and that Urrieta was Mexican citi- (6th Cir.2004) 630-31 (holding that ner- This zen. information falls far short of “an vousness is unreliable indicator ille- establishing [of gal activity], especially in the context of a was a pro- courier. Urrieta stop,” many because citizens be- vided evidence the 1998 Navigator come nervous when stopped by police nearly eight years ap- old and worth “even when nothing $12,500 to fear or proximately the time of the