United States v. Gregory B. Bloomfield, Also Known as Earl Marcum Johnson

24 F.3d 1043, 1994 U.S. App. LEXIS 17788

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 14, 1994
• Docket: 93-2970
• Status: Published

Opinions

McMILLIAN, Circuit Judge.

Defendant Gregory B. Bloomfield (a/k/a Earl Marcum Johnson) appeals from a final judgment entered in the United States District Court for the Western District of Missouri sentencing him to sixty months imprisonment, five years supervised release, and a special assessment of $50.00, following his conditional plea of guilty to one count of possession with intent to distribute marijuana. For reversal, defendant argues that the district court erred in denying his motion to suppress physical evidence found in a rental truck he was operating. For the reasons discussed below, we hold that the district court erred in denying defendant’s motion to suppress. We reverse the conviction and remand for further proceedings consistent with this opinion.

On March 6, 1993, Trooper Scott Roberts of the Missouri State Highway Patrol was sitting in his patrol car on the shoulder of eastbound Interstate-44 in Pulaski County, Missouri, when he observed a Hertz rental truck driven by defendant traveling eastward. He followed the truck a short distance and then signaled for it to pull over. The initial stop occurred at about 7:00 p.m.

The relevant events, according to Roberts’ testimony at the suppression hearing, occurred as follows. Roberts pulled the truck over because he observed it abruptly change lanes without signaling, and he wanted to check on the condition of the driver. As Roberts approached the driver’s side of the truck, defendant only partially rolled down his window. Roberts asked defendant to produce a driver’s license and rental agreement and defendant complied. The name Earl Marcum Johnson appeared on both the license and the rental agreement. Defendant appeared nervous, his hands were shaking, and he tended not to look at Roberts. His eyes were red and he looked tired. Roberts then asked defendant to step out of the truck and to have a seat in the patrol car. Defendant squeezed out the driver’s side door and then closed the door behind him. At that time, Roberts noticed an odor from the truck which he described at the suppression hearing as “a masking odor, a heavy, strong odor of a deodorizer smell.”

As Roberts had requested, defendant accompanied him to the patrol ear where Roberts filled out an activity report and ran a cheek on defendant’s driver’s license. The license and the rental agreement both checked out as in order. While the two were sitting in the patrol car, Roberts began questioning defendant about where he was coming from and where he was going. Defendant said he was moving from Pheonix, Ati-zona, where he had been doing construction work, to North Carolina, his home, making a stop on the way to see his fiancee in Pennsylvania. According to Roberts, he then pressed defendant for information about his former employer and the town in which his fiancee lived, and defendant would not specifically answer those questions. Roberts then asked defendant what was in the back of the rental truck and defendant responded that it was furniture and personal goods. According to Roberts, defendant appeared nervous and under stress. He was perspiring slightly, swallowing heavily, and taking deep breaths. Roberts also testified that he never smelled alcohol on defendant while they were in the patrol car. Roberts asked if defendant was hauling drugs, weapons, or other contraband, to which defendant did not respond. When asked for permission to search the vehicle, defendant refused.

Roberts then informed defendant that he was going to call for a drug dog and immediately did so. By this time, another state trooper, John Betts, had entered the patrol car and was seated in the back seat. When defendant asked if he was under arrest, both Roberts and Betts told defendant that he was not. They also indicated that they were going to detain the truck but that he was free to leave, which Roberts testified was, as a' practical matter, not a realistic option given the location where they were stopped.

Defendant said he needed to use the bathroom, so Roberts and Betts escorted defendant to a zone office of the Missouri State Highway Patrol. Roberts led in his patrol car, followed by defendant in the truck, and Betts followed the truck in his patrol car. Roberts testified that en route defendant drove slowly and veered onto the righthand shoulder several times.

At the zone office, Roberts conducted a field sobriety test on defendant, which defendant passed. The drug dog arrived at the zone office approximately one hour after the initial stop had occurred. The dog positively responded to the truck. Defendant was then placed under arrest. The troopers conducted a warrantless search of the truck, where they found 797 pounds of marijuana wrapped in cellophane, inside freezer compartments and cardboard boxes. Also in the truck were deodorizers such as dog repellent, pet deodorizers, “stick-em” air fresheners, stain eliminator, and ammonia.

On cross-examination, Roberts agreed that it could have been possible that defendant signaled his lane change at the moment the rental truck was in Roberts’ blind spot. Trooper Roberts also testified on* cross-examination that traffic was rather heavy at times, and heavier than usual. Roberts further testified that, at the time of the initial stop, defendant asked for permission to leave to use the bathroom, and he and Betts said that defendant could not leave with the truck. Roberts agreed that a rental truck with out-of-state license plates is consistent with a drug courier profile. Roberts also added that he noticed two radar detectors on the dash of the rental truck when he initially approached it, and that while walking with defendant back to the patrol car, he noticed a pager on defendant’s person.

Defendant testified that when Roberts approached the truck he rolled the window approximately three-quarters of the way down. He did not open his door fully when he exited the truck because of the heavy flow of traffic on the highway and because Roberts was standing right next to the door. He testified that Roberts retained his driver’s license and rental agreement and would not allow him to leave despite repeated requests. He maintained that he was not particularly nervous or fidgity during the time he was being questioned and detained, but was slightly nervous. As to Roberts’ suggestion that defendant evaded questions about his former employer, defendant stated that he answered factually that he did not work for a construction company but rather worked with a small group of people on property maintenance. He also testified that the deodorizing items found in the truck during the search were only located in the rear cargo area of the truck, not in the cab. Defendant noted, however, that there were some day-old onion rings in the cab of the truck at the time of the stop.

At the end of the hearing on defendant’s motion to suppress, the district court ruled from the bench, denying the motion on grounds that (1) the initial stop was not pretextual because Roberts believed he observed defendant abruptly change lanes without signaling, (2) Roberts had a reasonable basis for concluding that the vehicle was carrying some controlled substance because he clearly smelled a. masking odor from the cab of the truck, (8) the duration of the detention while Roberts and Betts were waiting for the drug dog to arrive was not unreasonable under the circumstances, and (4) the officers had a right to search the vehicle without a search warrant.

On appeal, defendant argues that his Fourth Amendment rights were violated because (1) the initial stop for allegedly failing to signal a lane change was pretextual, (2) the refusal to return his driver’s license and rental agreement, or to allow him to leave, constituted an unlawful seizure and detention of his person without a reasonable suspicion of criminal activity, (3) his detention for about one hour while the officers waited for the drug dog to arrive was unduly long and therefore overly intrusive, .and (4) no exceptional circumstances existed to justify a war-rantless search. Upon review of the evidence and the district court’s oral findings, we hold that the district court clearly erred in finding that Trooper Robert’s seizure of defendant’s person was justified by a reasonable suspicion of criminal activity. Accordingly, we do not reach the merits of the remaining Fourth Amendment issues.

We assume, without deciding, that Roberts’ initial stop of defendant was not pretextual. Therefore, Roberts could lawfully conduct an investigation limited to that which was “reasonably related in scope to the circumstances which justified the interference in the first place,” including' checking defendant’s driver’s license and rental agreement. United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir.1990), cert denied, - U.S. -, 112 S.Ct. 428, 116 L.Ed.2d 448, 449 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968) {Terry)). Defendant argues, however, that his .detention exceeded such constitutional limits and transformed into a seizure of his person within the meaning of the Fourth Amendment, without the requisite level of reasonable suspicion of criminal activity required under Terry. We agree.

The district court made no finding as to whether or when a seizure of defendant’s person actually occurred. The district court simply concluded that no Fourth Amendment violation occurred because “Officer Roberts had a reasonable basis for concluding that the vehicle may be carrying some controlled substance in that he clearly smelled the masking odor from the cab of the truck.”

“[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). Defendant argues that once his driver’s license and rental agreement cheeked out as apparently in order, and yet Roberts refused to return the documents and allow him to leave with the truck, he was seized for Fourth Amendment purposes.

Based upon the facts as presented by Roberts, we hold that Roberts’ investigation exceeded the scope of that which was reasonably related to the initial basis for the stop (namely, the abrupt, unsignaled lane change) and therefore defendant was seized within the meaning of the Fourth Amendment, at least by the time Roberts had escorted him to the patrol car and had begun questioning him about matters unrelated to his driving such as the name of his former employer and the contents of the truck, while retaining defendant’s driver’s license and rental agreement. At that point, defendant certainly was not in a position where he reasonably could have felt free to leave. Compare United States v. Jefferson, 906 F.2d 346, 349-50 (8th Cir.1990) (Jefferson) (following a routine “welfare check” of the defendants, occupants of a parked car, the defendants were seized for Fourth Amendment purposes at least by the time the officer had required the driver to sit with him in the patrol car and had cheeked the driver’s license, the passenger’s identification card, and the rental agreement, even though no traffic violation had been observed).

Seizure is permitted only where there is a reasonable suspicion of criminal activity. Id. (affirming suppression of evidence obtained as a result of unlawful seizure where officer lacked a reasonable basis for suspicion). Defendant contends that the district court clearly erred in finding that Trooper Roberts had a reasonable suspicion that defendant had engaged or was engaging in criminal activity at the time defendant was seized within the meaning of the Fourth Amendment.

The government argues that under the standards of Terry, and cases such as Jefferson which follow Terry, the decision by Roberts to detain defendant in order to investigate the possible presence of drugs in the rental truck was not unlawful because, by time he made that decision, Roberts had developed a reasonable suspicion that defendant was a drug courier. The government highlights the following facts as the bases for Roberts’ decision: “Trooper Roberts observed that defendant’s hands were shaking, that his eyes were red, that he squeezed out his vehicle door, and that a ‘masking odor’ came from the vehicle.” Brief for Appellee at 8. The government additionally notes that defendant gave incomplete and arguably evasive answers to Roberts’ questions, which, the government maintains, were reasonably related to the circumstances that initially justified the traffic stop. The government contends that these are specific and articula-ble facts from which Roberts could have reasonably inferred that defendant was engaged in unlawful conduct.

It is well-settled that “conduct typical of a broad category of innocent people provides a weak basis for suspicion.” United States v. Crawford, 891 F.2d 680, 681 (8th Cir.1989) (Crawford) (citing Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam)). In Craw ford, police officers were conducting surveillance of an apartment building where one of the six or so units was believed to be occupied by a suspected cocaine trafficker, when they observed the defendant run past the front of the building around to the back and enter through the rear door. He emerged from the front door of the building with a bicycle, re-entered, then re-emerged with a bundle of what appeared to be two coats. He placed these items in his car while looking up and down the street. As he drove off, an unmarked car followed close behind him. He pulled over to allow the unmarked ear to pass, but when it did not, he sped up and made a series of evasive right turns. The defendant was pulled over and arrested after he failed to produce a driver’s license. Inside his car, the police discovered cocaine and packets of cash. On appeal of his conviction for possession of cocaine with intent to distribute, this court reversed the district court’s denial of the defendant’s motion to suppress the evidence found in his car, on grounds that the facts known to the officers leading up to their Terry-type stop, were insufficient as a matter of law to provide an objectively reasonable suspicion that the defendant was involved in criminal activity. 891 F.2d at 681. This court reasoned that carrying a bicycle and a bundle of coats from an apartment building to a car was “conduct typical of countless innocent people,” and noted that the defendant’s other actions, such as his attempt to evade the unmarked police car that followed closely behind him, could readily be explained as innocent behavior. Id. at 682. In the present case, we similarly hold that the district court committed clear error in finding that Roberts had an objectively reasonable suspicion that defendant was involved in criminal activity.

We examine the following factors to determine whether Roberts had a reasonable suspicion that defendant was engaged in criminal activity at the time the Fourth Amendment seizure occurred: (1) defendant’s hands were shaking and he appeared nervous, (2) defendant’s eyes appeared red, (3) defendant opened the door only partially when he exited the truck, (4) a strong deodorizer smell emanated from inside the truck, and (5) defendant was wearing a pager.

Defendant’s nervousness, upon being stopped and ordered to sit in the patrol car, does not necessarily suggest criminal conduct; few innocent people would be calm under those circumstances. The fact that defendant’s eyes were red, given the distance he was driving and the evening hour, bears no. relation to criminal conduct; such condition probably typifies many long distance travelers on interstate highways. The fact that defendant opened his door only partially when ordered by Roberts to exit the truck can be readily explained by the flow of traffic, which, Roberts himself admitted, was heavier than usual on Interstate-44 that evening. The smell that Roberts noticed when defendant exited the vehicle may be explained by noncriminal as well as criminal reasons; for example, it could have come from a heavy-smelling car deodorizer. Similarly, pagers are carried by people for numerous reasons, which are not necessarily unlawful.

We hold that the district court clearly erred in implicitly finding that Roberts had an objectively reasonable suspicion that defendant was engaging in criminal conduct at the time Roberts’ investigation exceeded the scope of that which was reasonably related to the basis for the initial stop and defendant was seized for Fourth Amendment purposes. The circumstances discussed above, and the reasonable inferences to be drawn from them, when viewed collectively and in light of Roberts’ experience, do not as a matter of fact or law create an objectively reasonable suspicion that defendant was transporting drugs or other contraband. See United States v. Weaver, 966 F.2d 391, 394 (8th Cir.) (reasonable suspicion must derive from more than an inchoate and unparticularized suspicion or “hunch,” and police must identify particular facts and inferences rationally drawn from those facts creating a reasonable suspicion of criminal activity), cert. denied, - U.S. -, 113 S.Ct. 829, 121 L.Ed.2d 699 (1992); Crawford, 891 F.2d at 681 (same). Sustaining the search in this case would invite police to stop and detain innocent out-of-state rental truck drivers (and others) without reasonable suspicion of criminal activity, in violation of the Fourth Amendment.¹

Accordingly, the conditional plea of guilty and judgment of conviction are vacated. This matter is remanded to the district court for further proceedings consistent with this order.

1 . We think this case could even have been disposed of on grounds that defendant was arrested without probable cause. Trooper Roberts conceded that he did not have probable cause to arrest defendant on the highway. From a factual standpoint, however, defendant was arrested. He was not free to leave, not free to use his truck to travel to a public restroom, and thus not free to decline the officers’ escort to a restroom at the highway patrol zone office. A motorist who is pulled over on the highway for a minor traffic violation, and is then required to sit in a police car while officers detain his vehicle and question him about matters unrelated to the initial traffic stop, could reasonably perceive himself as under arrest, particularly where walking or hitchhiking at night on a busy interstate highway represent the only means of exercising his theoretical "freedom to leave."