United States v. Robert Salzano

158 F.3d 1107, 1998 Colo. J. C.A.R. 5460, 1998 U.S. App. LEXIS 38836, 1998 WL 731250

Opinions

Before: EBEL, HENRY, and BRISCOE, Circuit Judges.

ORDER

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

EBEL, Circuit Judge.

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. Because the district court erred in refusing to grant Mr. Salzano’s motion to suppress, we reverse the denial of his motion and remand for further proceedings.

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, 100 F.3d 1491, 1500-01 (10th Cir.1996) (quoting Terry v. Ohio 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). In the absence of probable cause or a warrant, the officer must have “an objectively reasonable and articula-ble suspicion that illegal activity has occurred or is occurring” in order to justify detaining an individual for a period of time longer than that necessary to review a driver’s license and vehicle registration, run a computer cheek, determine that the driver is authorized to operate the vehicle, and issue the detainee a citation. United States v. McRae, 81 F.3d 1528, 1534 (10th Cir.1996) (quoting United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.1994)). We view the evidence in the light most favorable to the government, and review the district court’s factual findings for clear error, but we review de novo the district court’s conclusion that the officers had reasonable, articulable suspicion of criminal activity at the time of the seizure. See United States v. Carhee, 27 F.3d 1493, 1496-97 (10th Cir.1994) (citations omitted). The government bears the burden of proving the reasonableness of the officers’ suspicion. See id. at 1496 & n. 2 (“The government ... bears the burden of proving that its warrantless actions were justified.”); United States v. Finefrock, 668 F.2d 1168, 1170 (10th Cir.1982) (“Whenever a defendant challenges a warrantless search or seizure, the government carries the burden of justifying the agent’s actions.”) (citing Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)); see also United States v. Longmire, 761 F.2d 411, 418 (7th Cir.1985) (“[T]he government bore the burden of establishing by a preponderance of the evidence ... that Officer Pacheco had a reasonable suspicion justifying the seizure of Longmire and her companion.”).

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, 106 F.3d 942, 946 (10th Cir.1997). In doing so, we give deference to “a law enforcement officer’s ability to distinguish between innocent and suspicious actions,” but keep in mind that “[i]nchoate suspicions and unpar-ticularized hunches ... do not provide reasonable suspicion.” Id. Moreover, as we have held, “[e]ven though reasonable suspicion may be founded upon factors consistent with innocent travel, ... ‘[s]ome facts must be outrightly dismissed as so innocent or susceptible to varying interpretations as to be innocuous.’ ” Id. (quoting United States v. Lee, 73 F.3d 1034, 1039 (10th Cir.1996)).

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 determine whether they support a reasonable suspicion of criminal activity.

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, 106 F.3d at 947. Simply because the officer would not have chosen a particular vehicle for travel does not make that choice indicative of criminal activity-

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, 98 F.3d 341, 343 (8th Cir.1996). In that case, the court held, with almost no discussion, that the detaining officer’s disbelief that the defendant had borrowed a “gas-guzzling” motor home just to take a weekend trip from Michigan to Las Vegas, coupled with a strong smell of detergent and unusual nervousness, supported the officer’s reasonable suspicion that the defendant was transporting drugs. See id. We find that case sufficiently distinguishable on its facts that we do not regard it as persuasive authority in this case.

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.¹ Large quantities of drugs can be, and have been, hauled in vans, U-Haul trucks, tractor trailers, indeed any large vehicle. The mere fact that a vehicle has a large capacity cannot be sufficient to support a reasonable suspicion of criminal activity. See United States v. Robert L., 874 F.2d 701, 704-05 (9th Cir.1989) (absent evidence that car was specially modified to carry large quantities of drugs, that it was heavily loaded, or that the vehicle was “of a particular make or model that has been expressly linked to drug trafficking,” the mere fact that defendant was driving a car with large trunk capacity was not sufficient to support reasonable suspicion); cf. United States v. Gordon, 722 F.2d 112, 114 (5th Cir.1983) (per curiam) (use of motor home, inter alia, sufficient to support reasonable suspicion of drug trafficking where detainee was identified as member of organization known for using motor homes in drug smuggling operations). Trooper Guerrero did not testify that the motor home seemed overloaded or that the vehicle had been modified in any way to suggest the addition of false panels or the like. Cf. United States v. Kohler, 836 F.2d 885, 888 (5th Cir.1988) (finding reasonable suspicion to stop a heavily loaded motor home near the U.S.-Mexican border after park rangers had observed marked changes in the appearance of the motor home). Nor did the government present any evidence that a motor home such as the one driven by Mr. Salzano is a mode of transportation preferred by drug smugglers. The fact that smugglers transporting large quantities of narcotics prefer to do so in large vehicles does not suffice to support reasonable suspicion that a large recreational vehicle may have been engaged in such traffic.²

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, 106 F.3d at 946.

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, 18 F.3d 874, 879 (10th Cir.1994) (quoting United States v. Millan-Diaz, 975 F.2d 720, 722 (10th Cir.1992)). Nervousness alone cannot support reasonable suspicion of criminal activity. See id. at 880. This is because it is common for most people “to exhibit signs of nervousness when confronted by a law enforcement officer” whether or not the person is currently engaged in criminal activity. Wood, 106 F.3d at 948. Thus, absent signs of nervousness beyond the norm, we will discount the detaining officer’s reliance on the detainee’s nervousness as a basis for reasonable suspicion. See id.

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.” On this record, Trooper Guerrero’s claim that Mr. Salzano’s nervousness provided him reasonable suspicion of criminal activity must be discounted.

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, 115 F.3d 797, 802 (10th Cir.1997) (strong smell of detergent and presence of detergent crystals visible on vehicle floorboard, inter alia, supported reasonable suspicion of presence of drugs in vehicle); United States v. Hernandez-Rodriguez, 57 F.3d 895, 898 (10th Cir.1995) (strong smell of perfume supported reasonable suspicion that odor was employed to mask smell of drugs); United States v. Stone, 866 F.2d 359, 362 (10th Cir.1989) (strong smell of patchouli oil, which officer knew was often used by drug smugglers to mask scent of marijuana, supported reasonable suspicion of drug possession). However, Trooper Guerrero neither testified that at the time of the stop he was aware that drug smugglers often used the scent of natural evergreen to cover the smell of illegal drugs nor that-the evergreen smell was out of proportion to that one might expect to be emitted by a large fresh-cut natural evergreen wreath.³ What’s more, this stop took place only five days before Christmas. Absent any evidence that drug smugglers commonly use fresh evergreen wreaths to mask the scent of drugs, or that the evergreen smell encountered by Trooper Guerrero was stronger than to be expected given the size of the wreath displayed in Mr. Salzano’s vehicle, the presence of a Christmas wreath in a vehicle a few days before Christmas is exactly the sort of fact that “must be out-rightly dismissed as so innocent or susceptible to varying interpretations as to be innocuous.” Wood, 106 F.3d at 946.

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 unless there are concrete reasons for such an interpretation.’ ”) (quoting Karnes v. Skrutski, 62 F.3d 485, 496 (3d Cir.1995)). Because in this case the government failed to meet its burden of proving by a preponderance of the evidence that Trooper Guerrero’s suspicion of criminal activity was reasonable, we find that the seizure of Mr. Salzano beyond the initial traffic stop was illegal. Thus, the evidence obtained as a result of that seizure must be suppressed.⁴ See id. (citing Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).

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.

1 . The government quotes the Supreme Court in California v. Carney, 471 U.S. 386, 394, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), in which the Court said that "a motor home lends itself easily to use as an instrument of illicit drug traffic and other illegal activity.” However, the quoted language appears in a discussion of whether a motor home qualified as a vehicle or a dwelling, for purposes of the vehicle exception to the Fourth Amendment, and not whether the choice to drive a motor home could serve as a basis for reasonable suspicion of criminal activity.

2 . 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.

3 . 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.

4 . Because we so conclude, we need nol address the issues regarding sentencing raised by Mr. Salzano on appeal.