United States v. Freeman

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 23, 2000
• Docket: 98-6636
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0102P (6th Cir.) File Name: 00a0102p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellee,   Nos. 98-6636/6637 v.  > LANCE M. FREEMAN    (98-6636), DONALD W.

Defendants-Appellants.  ADAMS (98-6637),  1 Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 97-20138—Julia S. Gibbons, Chief District Judge. Argued and Submitted: December 16, 1999 Decided and Filed: March 23, 2000 Before: MARTIN, Chief Judge; CLAY,* Circuit Judge; WEBER, District Judge.

* The Honorable Herman J. Weber, United States District Judge for the Southern District of Ohio, sitting by designation.

1 2 United States v. Freeman, et al. Nos. 98-6636/6637 Nos. 98-6636/6637 United States v. Freeman, et al. 15

_________________ appear to be alive and well to the extent that these drug interdiction officers are stopping target vehicles based upon COUNSEL subjective application of laws such as not driving “as practicable as possible,” in order to gain suspicion to search ARGUED: April R. Ferguson, OFFICE OF THE for narcotics. See id. at 556-62. Such stops and searches, FEDERAL PUBLIC DEFENDER FOR THE WESTERN whether done under the guise of a vehicle checkpoint or a DISTRICT OF TENNESSEE, Memphis, Tennessee, for traffic stop, fail constitutional muster. Appellant in 98-6636. ON BRIEF: April R. Ferguson, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR D. Conclusion THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, E. E. Edwards III, EDWARDS, SIMMONS & While I have focused on what may appear to be the tactics OLIVER, Nashville, Tennessee, Wesley M. Oliver, TULANE of the drug interdiction officers in Shelby County based upon LAW SCHOOL, New Orleans, Louisiana, for Appellants. the cases reaching our Court from this area, cases have also Paul M. O’Brien, ASSISTANT UNITED STATES appeared from other areas within this Circuit in which ATTORNEY, Memphis, Tennessee, for Appellee. challenges to stops and searches are based on similar factual scenarios. See, e.g., United States v. Akram, 165 F.3d 452 MARTIN, C. J., delivered the opinion of the court, in (6th Cir. 1999). The officers of Shelby County, Tennessee, which WEBER, D. J., joined. CLAY, J. (pp. 6-15), delivered and drug interdiction officers everywhere in this Circuit a separate concurring opinion. should understand that they are not to abuse the authority provided to them to under Whren and Ferguson. Although _________________ illegal narcotics have a widespread and devastating effect on our country, the answer in controlling drug use does not lie in OPINION sacrificing our precious Fourth Amendment constitutional _________________ guarantees. The result of overzealous or even arrogant police conduct that rises to the level of a Fourth Amendment BOYCE F. MARTIN, JR., Chief Judge. Donald W. Adams violation may be counterproductive where those individuals and Lance M. Freeman seek review of the district court’s actually transporting illicit narcotics may have the evidence order denying their motions to suppress evidence seized recovered against them suppressed – and charges during an atypical traffic stop. The issue is whether the police subsequently dismissed – as a result of an illegal stop. had probable cause to stop and search the vehicle driven by Adams and Freeman. Because we find that the police did not have probable cause, we reverse and direct that the evidence be suppressed. On the July 4, 1997 holiday, Memphis Police Officer David Tate stopped a motor home traveling eastbound on heavily traveled Interstate Forty for violating Section 55-8-123 of the Tennessee Code, after he allegedly observed the vehicle cross the white line separating the emergency lane from the right- hand lane of traffic for an estimated twenty to thirty feet. Section 55-8-123 provides that a vehicle “shall be driven as 14 United States v. Freeman, et al. Nos. 98-6636/6637 Nos. 98-6636/6637 United States v. Freeman, et al. 3

occurred in the same area, we specifically expressed our nearly as practicable entirely within a single lane.” Adams concern over the potential for abuse as it relates to “target” was the driver of the motor home and Freeman was the only vehicles such as U-Hauls. See 195 F.3d at 265-67 (citing passenger. Officer Tate and Officer Michael McCord, who United States v. Akram, 165 F.3d at 460 (Guy, J., dissenting)). arrived on the scene shortly after the initial stop, requested registration and identification, which Adams and Freeman Based upon the stream of cases reaching this Court since produced. The officers then asked if there were any drugs or Mesa, in which the defendants have specifically challenged weapons in the vehicle. After Adams stated that there were the search of their vehicles subsequent to a traffic stop along no drugs or weapons, Officer Tate asked for permission to Interstate 40 near Memphis, it appears that sheriffs of drug “look around,” which Adams reluctantly granted. Without interdiction units in this area may be doing precisely what anything further, the officers proceeded with a search of every Mesa cautioned against – using the authority vested in them compartment of the motor home, where they did in fact find under Whren and Ferguson as carte blanche to conduct marijuana hidden in several compartments. “fishing expeditions” to search for contraband, particularly when a “target” vehicle such as a van, motor home, U-Haul, Freeman and Adams filed motions to suppress the evidence truck, or 2automobile with an out-of-state license plate is found in the search of their motor home, alleging that Officer involved. See Mesa, 62 F.3d at 162-63; see also Hill, 195 Tate lacked probable cause to stop the vehicle and that, even F.3d at 266. if the stop was lawful, the search was beyond the scope of the initial stop and there was no waiver. The magistrate, whose It also appears that, in effect, some of these officers may be report was adopted by the district court, concluded that the attempting to use the authority vested in them by Whren and stop was justified because the motor home’s partial entry into Ferguson to accomplish what this Court found to be an the emergency lane constituted probable cause that either a unconstitutional practice by the State of Tennessee in United traffic violation had occurred or that the driver was States v. Huguenin, 154 F.3d 547 (6th Cir. 1998). In other intoxicated. The district court then denied the motions to words, the Tennessee vehicle checkpoints we found suppress the evidence from the search. Freeman and Adams unconstitutional in Huguenin on the basis that they were pled guilty to possession with intent to distribute marijuana in being operated not to detect intoxicated drivers, but as a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, pretext to stop drivers who had violated no traffic laws in reserving the right to revoke their pleas should this Court order to gain reasonable suspicion to search for narcotics, reverse the district court and suppress the evidence discovered during the search.

2 When reviewing the district court’s denial of a motion to An issue raised by some defendants in the course of challenging the suppress evidence, this Court applies a clearly erroneous initial stop of their vehicles in the cases cited herein is that the officers’ motivation in stopping their vehicles was not sparked by concern for the standard to the district court’s findings of fact while enforcement of the traffic laws, but by the defendants’ Mexican or reviewing its conclusions of law de novo. See United States Mexican-American ethnicity. See, e.g., United States v. Palomino, 100 v. Lumpkin, 159 F.3d 983, 986 (6th Cir. 1998). In doing so, F.3d 446 (6th Cir. 1996). In response to these “ethnic profiling” claims, we consider the evidence in the light most favorable to the I note that although the Supreme Court has held that an officer’s United States. See United States v. Wellman, 185 F.3d 651, subjective motivations play no role in ordinary, probable cause Fourth Amendment analysis, the Court has held that an officer’s actual 655 (6th Cir. 1999). Stopping a vehicle and detaining its motivation is considered when a claim is brought under the Equal occupants amounts to a seizure under the Fourth Amendment. Protection Clause for selective enforcement of the law based on See Delaware v. Prouse, 440 U.S. 648, 653 (1979). The considerations such as race or ethnicity. See Whren, 517 U.S. at 813. 4 United States v. Freeman, et al. Nos. 98-6636/6637 Nos. 98-6636/6637 United States v. Freeman, et al. 13

reasonableness of the stop is ascertained by determining first C. The Apparent Pattern or Practice of Stopping and “whether the officer’s action was justified at its inception,” Searching “Target” Vehicles as an Abuse of and second “whether it was reasonably related in scope to the Authority Under Whren and Ferguson circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 19-20 (1968). It is in this context that we address the issue of whether Officer Tate had This Court has previously expressed its concern regarding probable cause to justify a stop of the motor home driven by the potential for abusive police practices under Whren and Adams. Ferguson, particularly as it relates to the actions of officers in this area. For example, in United States v. Mesa, a case It is true that “so long as the officer has probable cause to involving an illegal search and seizure which took place believe that a traffic violation has occurred or was occurring, pursuant to a traffic stop along this very stretch of highway in the resulting stop is not unlawful.” United States v. Tennessee, this Court warned against allowing police officers Ferguson, 8 F.3d 385, 391 (6th Cir. 1993). We can not, to use the authority provided to them under Ferguson to however, agree that one isolated incident of a large motor conduct “fishing expeditions” to search for contraband. See home partially weaving into the emergency lane for a few feet 62 F.3d at 162. The Mesa Court cautioned that because “we and an instant in time constitutes a failure to keep the vehicle [have given] the green light to police officers to stop vehicles within a single lane “as nearly as practicable.” See United for any infraction, no matter how slight, even if the officer’s States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996) (holding real purpose was to hope that narcotics or other contraband that a similar one-time entry into the emergency lane failed to would be found as a result of the stop[, and because] . . . we constitute a violation of a Utah statute nearly identical to have extended this authority to the broadest extent possible, Tennessee Code Section 55-8-123). We therefore find that . . . we have a duty to see that the authority is not abused.” Officer Tate’s observation of the motor home briefly entering See id. The Court further cautioned as follows: the emergency lane is insufficient to give rise to probable cause of a traffic violation and warrant an invasion of Although there is always temptation in cases of this Adams’s and Freeman’s Fourth Amendment rights. Because nature when a substantial quantity of drugs and firearms Officer Tate’s stop of the motor home was not justified at its are found to let the end justify the means, it must be inception, the evidence found in the subsequent search must remembered that the courts only see cases in which the be suppressed. conduct of the officer resulted in contraband being found. If the officers had found no drugs in the defendant’s car, Just as it does not constitute probable cause that a traffic obviously we would not even know that this traffic stop violation occurred, the motor home’s brief entry into the had ever occurred. Therefore, we must accept that courts emergency lane does not constitute probable cause that will always be “thwarting” what some may view as a Adams was intoxicated. As stated by the Tenth Circuit, “[i]f good piece of police work when a motion to suppress is failure to follow a perfect vector down the highway or granted in cases of this nature. Notwithstanding the keeping one’s eye on the road were sufficient reasons to importance of drug interdiction, however, we are still suspect a person of driving while impaired, a substantial charged with the responsibility of seeing that the portion of the public would be subject each day to an invasion interdiction occurs without the Constitution being of their privacy.” Gregory, 79 F.3d at 978-79 (quoting United violated. States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993)). Accordingly, Adams’s failure to follow a perfect vector down Id. at 163 (footnote omitted). Moreover, in Hill, a case brought on a motion to suppress from a stop and search which 12 United States v. Freeman, et al. Nos. 98-6636/6637 Nos. 98-6636/6637 United States v. Freeman, et al. 5

Although it is true that illegal narcotics were obtained as a Interstate Forty did not give Officer Tate probable cause to result of each of the searches in the above-referenced cases, stop the motor home. we must remain mindful of our duty to insure that traffic stops and subsequent searches are conducted in accordance with Accordingly, the judgment of the district court is Fourth Amendment guarantees, and that we do not succumb REVERSED. This case is REMANDED for further to the temptation of allowing the end to justify the means. proceedings. See Byars, 273 U.S. at 29; Akram, 165 F.3d at 457-60; United States v. Mesa, 62 F.3d 159, 163 (6th Cir. 1995). As recently cautioned, the Court must give the same critical scrutiny to an officer’s credibility and reason for making the initial stop as given to the defendant’s testimony. See Hill, 195 F.3d at 165- 67; Akram, 165 F.3d at 457-60; see also United States v. Anderson, 42 F. Supp. 2d 713, 717-19 (E.D. Mich. 1999) (recognizing the potential for abuse under Whren and therefore “closely scrutiniz[ing] the government’s purported reason for the stop”). In addition, as Chief Judge Boyce F. Martin, Jr., once opined, the limits on police officers to detain and search based upon reasonable suspicion incident to a traffic stop must be sharply drawn so that law enforcement officers do not extend the detention and increase the extent of their search until they find conclusive evidence of wrongdoing and elicit a consent from a detainee. See United States v. Erwin, 155 F.3d 818, 825 (6th Cir. 1998) (en banc) (Martin, C.J., dissenting); see also State v. McGinnis, ___ N.W.2d ___, 2000 WL 136818, at *5-*11 (Neb. Ct. App. 2000) (collecting cases regarding parameters on reason to detain after purpose of initial stop completed). It is not difficult to imagine, based upon the prodigious sampling of cases provided above, that innocent persons traveling along Interstate 40 in Tennessee have been stopped and subsequently searched simply because they were traveling in a “target” vehicle. However, because the questionable stops and searches of innocent persons’ vehicles are usually not brought to the court’s attention – inasmuch as no contraband is recovered and no court case results – we may never know the true extent of this apparent problem. 6 United States v. Freeman, et al. Nos. 98-6636/6637 Nos. 98-6636/6637 United States v. Freeman, et al. 11

______________________ 446 (6th Cir. 1996) (involving car bearing Texas license plates stopped for traveling 42 in a 55 zone and for changing CONCURRENCE lanes without signaling along Interstate 40 by Shelby County ______________________ Sheriff’s Deputy Officer Kellerhall, wherein suspicion to detain was based on chemical smell associated with ether- CLAY, Circuit Judge, concurring. I concur in the majority based cocaine emanating from car; Kellerhall asked the opinion reversing the district court’s denial of Defendants’ defendant to sign consent to search form while issuing motion to suppress the evidence on the basis that the police “courtesy citation”); United States v. Gonzalez, No. 94-6503, officers lacked probable cause to stop the Winnebago. I write 1996 WL 626286 (6th Cir. Oct. 24, 1995) (per curiam) separately concerning what may be a troubling pattern or (involving motor home stopped for “weaving over the left and practice by some members of the Shelby County Sheriff’s right hand lane markers” while traveling on Interstate 40 by Department drug interdiction squad of stopping “target” Officer Kellerhall who was later joined by backup officers, vehicles on questionable probable cause grounds in this area wherein suspicion to detain was based on smell of “raw” of Tennessee in order to search for contraband. Although it marijuana; consent to search obtained while officer issued is true that under Whren v. United States, 517 U.S. 806 (1996) “courtesy” citation); United States v. Mendoza, Nos. 93- and United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 6228; 93-6356, 1994 WL 526711 (6th Cir. Sept. 27, 1994) 1993) (en banc), a police officer may stop a vehicle for a (per curiam) (involving truck stopped for traveling 63 in 55 traffic offense when his or her actual motivation is to search zone along Interstate 40 by Officer Kellerhall, wherein for contraband, it is also true that the officer must still have suspicion to detain was based on smell of “raw” marijuana probable cause to make the initial stop, and must not abuse emanating from the truck and alleged inconsistent stories the Whren principle by using it as a subterfuge to justify the provided by driver and passenger; obtained consent to search, recovery of contraband after an illegal stop and search. but twice advised the driver that if he did not consent, Indeed, as the Supreme Court opined long ago, an illegal Kellerhall would send for canine unit to conduct narcotics search cannot be justified by the potent evidence that it sniff); United States v. Ledezma, 26 F.3d 636 (6th Cir. 1994) produces. See Byars v. United States, 273 U.S. 28, 29 (1927). (involving van stopped for “speeding” along Interstate 40 by Shelby County Sheriff’s Deputy Officer Edmonds who was A. “Probable Cause” for the Stop later joined by Officer Lane, wherein suspicion to detain was based on “nervousness” and “evasiveness” of the driver; In this case, Officer Tate’s purported reason for stopping consent to search obtained); United States v. Barnes, No. 93- Defendant Adams as he was heading eastbound in a 5060, 1994 WL 75932 (6th Cir. Mar. 8, 1994) (involving car Winnebago motor home along Interstate 40 near the Watkins bearing Texas license plates stopped along Interstate 40 by Road exit northeast of downtown Memphis, Tennessee was Shelby County Sheriff’s Deputy Officer Tate for “following because Officer Tate, who was later joined by Officer too close on a small compact car,” wherein this Court McCord after the stop occurred, allegedly observed Adams remanded the case back to the district court for further fact cross the solid white line separating the emergency lane from finding regarding Officer Tate’s purported reason for initially the right-most lane of travel, and remain across the line for stopping the vehicle, while noting its concern with the about twenty to thirty feet. Officer Tate admitted that Adams “subjective rule of reason in Tennessee on following too was traveling at the posted fifty-five miles per hour speed closely”). limit. Based upon Tate’s observation of the Winnebago crossing the white line for a distance of twenty to thirty feet, 10 United States v. Freeman, et al. Nos. 98-6636/6637 Nos. 98-6636/6637 United States v. Freeman, et al. 7

consent to search obtained; canine sniff conducted); United Tate stopped the vehicle for violating Tennessee Code § 55-8- States v. Wellman, 185 F.3d 651 (6th Cir. 1999) (involving 123, which requires all vehicles to be driven “as nearly as motor home bearing Texas license plate stopped for traveling practicable entirely within a single lane.” 63 in 55 zone along Interstate 240 near Watkins Road exit by Shelby County Sheriff’s Deputy Officer Chris Jones who was On appeal, Defendants argue, and we agree, that the mere later joined by Officer Lane, wherein suspicion to detain was passage of their vehicle across the line separating the based upon alleged inconsistent stories provided by the emergency lane of a highway from the right lane of travel did defendant after Jones placed him in back of patrol car to issue not constitute probable cause that Defendants were violating “courtesy” citation; consent to search obtained; canine sniff Tennessee law. Based upon Officer Tate’s testimony that he conducted); United States v. Guimond, 116 F.3d 166 (6th Cir. observed the Winnebago cross over the white line for about 1997) (involving mini-van bearing Quebec license plate twenty to thirty feet and that Defendants were traveling at the stopped for traveling 65 in 55 zone along Interstate 40 by posted speed limit, Defendants calculated the period of time Shelby County Sheriff’s Deputy Officer Tartera, wherein that Officer Tate observed the Winnebago cross over the line suspicion to detain based on spare tire in back seat instead of to be about one-third of a second.1 We agree that such a brief its proper storage compartment and vehicle had only two rows period of time where the Winnebago crossed over the line did of seats instead of three; Tartera placed driver in back of not provide Officer Tate probable cause to stop the vehicle for patrol car to issue “warning” citation and questioned driver as a traffic violation, particularly where the weather conditions to travel plans, then went to van to question passenger; on the day in question were windy, Adams was rounding a consent to search obtained); United States v. Mamoth, Nos. curve in the road at the time, and Officer Tate admitted that 94-6315; 94-6364; 95-5048, 1997 WL 215511 (6th Cir. April it would not be unusual for a Winnebago to cross over the 29, 1997) (involving motor home stopped for changing lanes white line inasmuch as the vehicle is top-heavy and the without signaling while traveling on Interstate 40 by Shelby Memphis area gets a lot of high winds, especially in that area County Sheriff’s Deputy Officer Daniels and later joined by of open highway. Officer Dollahite, wherein officers’ suspicion to detain was based on allegedly inconsistent statements made by driver and To accept Officer Tate’s purported reason for stopping the passenger; this Court reversed denial of motion to suppress on Winnebago as constituting probable cause for an alleged the basis that the driver was illegally detained); United States v. Saez, No. 96-5168, 1997 WL 176434 (6th Cir. April 10, 1997) (per curiam) (involving van stopped for traveling 64 in 1 a 55 zone along Interstate 40 by Shelby County Sheriff’s Defendants calculations are as follows: Deputy Officer Segerson, wherein officer’s suspicion to Twenty to thirty feet equates to a distance between 0.0379 tenths of a mile and 0.0568 tenths of a mile. detain was based on observation that rear portion of van had (20 feet) x (1 mile/5280 feet) = 0.00379 miles = 0.0379 tenths of a been raised and a strong scent of air freshener emanated from mile the van, along with Sergerson’s knowledge “[a]s a police (30 feet) x (1 mile/5280 feet) = 0.00568 miles = 0.0568 tenths of a officer patrolling the interstate highways, he was aware that mile drug traffickers often transported their wares along I-40"; The amount of time that the Winnebago actually crossed the white line based upon the fifty-five mile per hour speed limit at which the canine sniff was done). Winnebago was traveling is calculated as follows: (0.00379 miles) x (1 hour/55 miles) x (3600 seconds/hour) = 0.248 The cases bearing similar scenarios have further arisen seconds before the Court. See United States v. Palomino, 100 F.3d (0.00568 miles) x (1 hour/55 miles) x (3600 seconds/hour) = 0.372 seconds 8 United States v. Freeman, et al. Nos. 98-6636/6637 Nos. 98-6636/6637 United States v. Freeman, et al. 9

traffic infraction would perpetuate what appears to be the in which the Tennessee statute was employed by Officer Tate improper tactics sometimes employed by members of the to claim that Adams was violating it at the time of the stop Shelby County Sheriff’s Department, see infra Part B., and raises the spectre that the statute may potentially be used by give credibility to an unreasonable basis for the stop. In these interdiction officers as a tool to engage in both legal and making credibility determinations as to an officer’s purported illegal stops and searches. reason for initially stopping a vehicle, the Court may use the record in the case before it, what has been learned from other B. Cases Suggesting a Possible Pattern or Practice by similar cases, all reasonable inferences that can be drawn Officers of the Shelby County Sheriff’s Department therefrom, as well as its own common sense. See United of Stopping and Searching “Target” Vehicles States v. Hill, 195 F.3d 258, 266 (6th Cir. 1999) (quoting United States v. Akram, 165 F.3d 452, 458 (6th Cir. 1999) The following cases, presented in reverse chronological (Guy, J. dissenting)). Indeed, as will be illustrated in Part B., order as decided by this Court, represent a sampling of what this is not the first time Officer Tate’s credibility and may constitute an apparent pattern or practice of some drug truthfulness for stopping a vehicle traveling along Interstate interdiction officers in this area of Tennessee where the 40 in Shelby County, Tennessee have been challenged. See defendants involved have brought motions to suppress the United States v. Atkins, Nos. 98-5827; 98-5828, 1999 WL evidence. That is to say, the following cases involving 1045942, at **2 (6th Cir. Nov. 8, 1999) (noting that the defendants’ motions to suppress are those in which the defendant contended that Officer Tate was not truthful in interdiction officers stationed along Interstate 40 near claiming that he stopped the Blazer for speeding, wherein the Memphis have stopped a target vehicle, often on questionable defendant submitted Tate’s record for untruthfulness in other or subjective probable cause grounds, and where the cases in support of this contention); United States v. Barnes, subsequent sequence of events repeat in a manner apparently No. 93-5060, 1994 WL 75932 (6th Cir. Mar. 8, 1994) crafted to justify a resulting detention and search. (remanding the case for further fact finding as to whether Officer Tate had more objective reasons for stopping the The list of cases begins with those very recently decided. vehicle). See United States v. Atkins, Nos. 98-5827; 98-5828, 1999 WL 1045942, at **1 (6th Cir. Nov. 8, 1999) (involving a Considering the facts of this case along with what can be Chevrolet Blazer and a van both bearing Texas license plates learned from other cases arising out of this area of Tennessee stopped for “speeding” by Officer Tate and Officer McCord, and all reasonable inferences derived therefrom, Officer Tate respectively, wherein officers’ suspicion to detain and search did not have probable cause to stop the Winnebago, and may was based on smell of marijuana emanating from each have been using the Tennessee statute and the authority vehicle; at suppression hearing, evidence offered by the provided to him under Whren as a subterfuge to search this defendant as to Tate’s untruthfulness); United States v. Hill, target vehicle for contraband. See Hill, 195 F.3d at 165-67 195 F.3d 258 (6th Cir. 1999) (involving U-Haul stopped for (noting that an officer’s credibility in making the initial traffic traveling 63 in 55 zone along Interstate 40 by Shelby County stop must be scrutinized, particularly when a target vehicle Sheriff’s Deputy Officer Whitlock who was later joined by such as a U-Haul is involved); Ferguson, 8 F.3d at 388 Officer Kellerhall, wherein suspicion to detain was based on (holding that traffic stop cases must be evaluated by inconsistent stories allegedly provided by driver and undertaking an objective assessment of an officer’s actions in passenger after two had been separated when Whitlock placed light of the facts and circumstances then known to him to driver in patrol car, along with nervousness of driver and used determine whether they were reasonable). The subjective way tissue on floorboard of U-Haul; “courtesy” citation issued;