United States v. Salzano

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 28, 1998
• Docket: 97-3337
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, v. No. 97-3337 ROBERT SALZANO,

Defendant-Appellant.

ORDER AMENDING OPINION Filed October 16, 1998

Before EBEL, HENRY, and BRISCOE, Circuit Judges.

On July 28, 1998, this court issued its opinion in the above-entitled case. A majority of the panel now orders that the opinion be modified in the following way:

The sentence found at lines 7 and 8 on page 15 is deleted:

“However, an aggregation of individual null factors will almost always amount to a null set.”

In its place, the following material is added:

“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.”

Judge Briscoe continues to adhere to her dissent issued in this case.

The opinion, as modified, is reissued.

Entered for the Court PATRICK FISHER, Clerk of Court

By:

Amy Frazier Deputy Clerk

-2- F I L E D United States Court of Appeals Tenth Circuit PUBLISH OCT 16 1998 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT

Appeal from the United States District Court for the District of Kansas (D.C. No. 97-40002-01-DES)

James J. Warner, San Diego, California, for Defendant-Appellant Robert Salzano.

James E. Flory, Assistant United States Attorney, Topeka, Kansas (Jackie N. Williams, United States Attorney with him on the brief) for Plaintiff-Appellee United States.

Before EBEL, HENRY and BRISCOE, Circuit Judges.

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

I-70, for straying onto the shoulder. Trooper Guerrero suspected that Mr. Salzano

might be falling asleep or intoxicated. At the stop, Mr. Salzano 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,

-2- 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. Salzano 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 drug 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

-3- 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 (1968)). In the absence of probable cause or a warrant, the officer

must have “an objectively reasonable and articulable 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 check, 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. Bonzalez-Lerma, 14

F.3d 1479, 1483 (10th Cir. 1994)). We view the evidence in the light most

-4- 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 (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.

Salzano 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

-5- 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 unparticularized

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

-6- 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

-7- 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

The government quotes the Supreme Court in California v. Carney, 471 1

U.S. 386, 394 (1985), in which the Court said that “a motor home lends itself (continued...)

-8- 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

1 (...continued) 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.

-9- 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. Salzano had planned to drive to

Massachusetts with his wife, in which case his father would be the third person.

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.

- 10 - 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

case, 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

- 11 - 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. Salzano 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.

- 12 - 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 drugs. 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

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.

- 13 - 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 outrightly 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 drugs 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

- 14 - 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

- 15 - a result of that seizure must be suppressed. 4 See id. (citing Wong Sun v. United

States, 371 U.S. 471, 484-86 (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.

4 Because we so conclude, we need not address the issues regarding sentencing raised by Mr. Salzano on appeal.

- 16 - No. 97-3337, United States v. Salzano

BRISCOE, Circuit Judge, dissenting:

I respectfully dissent. In my view, Trooper Guerrero had reasonable

articulable suspicion which justified his detention of Salzano. I would affirm

Salzano’s conviction, but remand for further factfinding on the “safety valve”

issue he raises.

In an appeal from the district court’s denial of a motion to suppress,

findings of historical fact are reviewed only for clear error, but whether the

historical facts, viewed from the standpoint of an objectively reasonable police

officer, amount to reasonable suspicion is a question of law subject to de novo

review on appeal. Ornelas v. United States, 517 U.S. 690, 696-97 (1996). While

the government bears the burden of showing the detention was reasonable, United

States v. Carhee, 27 F.3d 1493, 1496-97 (10th Cir. 1994), on appeal, we consider

the totality of the circumstances and view the evidence in the light most favorable

to the government. United States v. Villa-Chaparro, 115 F.3d 797, 800-01 (10th

Cir.), cert. denied 118 S. Ct. 326 (1997).

An investigative detention short of full arrest must be supported by

reasonable articulable suspicion -- a particularized and objective basis for

suspecting the person stopped of criminal activity. United States v. Cortez, 449

U.S. 411, 417-18 (1981). An inchoate and unparticularized suspicion or hunch is

insufficient. The Fourth Amendment requires some minimal level of objective justification for the detention. That level of suspicion is considerably less than

proof of wrongdoing by a preponderance of the evidence, and less than the fair

probability that contraband or evidence of a crime will be found that is required

for probable cause. United States v. Sokolow, 490 U.S. 1, 7 (1989).

In evaluating the validity of an investigative detention, the courts must

consider “the totality of the circumstances--the whole picture.” Id. at 8. A

minimum number of factors is not required nor are there any outcome

determinative criteria, as such an approach would be antithetical to the totality of

the circumstances inquiry. United States v. Lopez-Martinez, 25 F.3d 1481, 1484

(10th Cir. 1994).

Wholly lawful conduct may justify suspicion of criminal activity. Factors

which are not by themselves proof of illegal conduct and are consistent with

innocent travel may, taken together, amount to reasonable suspicion. Sokolow,

490 U.S. at 9-10. In making a determination of reasonable suspicion, “our task . .

. is not to pigeonhole each purported fact as either consistent with innocent travel

or manifestly suspicious. Rather, the reasonable suspicion calculus turns on

whether the specific articulable facts, viewed together through the lens of a

reasonable law enforcement officer, justified a brief roadside detention.” United

States v. Doyle, 129 F.3d 1372, 1376 (10th Cir. 1997).

-2- The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Cortez, 449 U.S. at 418. Trained officers aware of the modes and patterns of

operation of certain kinds of lawbreakers can draw inferences and make

deductions that might well elude untrained persons. Id.

The majority relies on United States v. Wood, 106 F.3d 942, 946 (10th Cir.

1997), and United States v. Lee, 73 F.3d 1034, 1039 (10th Cir. 1996), to

individually discard each factor and then conclude no factors remain to support

reasonable suspicion. In Wood and Lee, the court found some factors relied on by

police must be dismissed outright as so innocent or so susceptible to varying

interpretations as to be innocuous. Here, the majority departs from the totality of

the circumstances approach mandated by the Supreme Court by applying Wood

and Lee as authority to review each factor individually and then discount each one

as having a potentially innocent or innocuous explanation.

By the very nature of the question presented, all factors relied on to

establish reasonable suspicion are ambiguous and consistent with either innocent

or criminal activity. Factors such as masking odors, implausible and inconsistent

travel plans, and nervousness are all inherently ambiguous and could be consistent

-3- with either innocence or with transportation of drugs. Masking odors are chosen

because they could have an innocent explanation such as the spilling of laundry

detergent. There also could be innocent explanations for implausible and

inconsistent travel plans. If a factor offered to support reasonable suspicion is

not ambiguous, such as an officer directly seeing or smelling drugs, the factor

would support a finding of probable cause and reasonable suspicion would no

longer be the question. See, e.g., United States v. Nielsen, 9 F.3d 1487, 1489-91

(10th Cir. 1993); United States v. Morin, 949 F.2d 297, 299-300 (10th Cir. 1991);

United States v. Bowman, 487 F.2d 1229, 1241 (10th Cir. 1973).

We must be cautious in applying Wood and Lee and reject only those

factors that are wholly innocent and those that do not suggest criminal activity at

all, such as the fast food wrappers and maps in Wood. If a factor can be

discounted simply because we can supply an innocent explanation for it, there

would never be reasonable suspicion because all factors (short of those which

would supply probable cause) can be discounted.

I question whether nervousness can be rejected outright. While

nervousness is so common among persons stopped for traffic violations that it

does not provide significant support for suspicion of more serious criminal

activity, we have recognized nervousness as one of the totality of circumstances

that can provide some support for reasonable suspicion. See, e.g., United States

-4- v. Soto-Cervantes, 138 F.3d 1319, 1324 (10th Cir. 1998), petition for cert.filed

(June 10, 1998); United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir.

1998); United States v. Soto, 988 F.2d 1548, 1556 (10th Cir. 1993).

The majority totally discounts Salzano’s nervousness because Trooper

Guerrero had no prior acquaintance with him. While we have suggested in

several cases that officers’ generic claims of nervousness are of little weight

where the officer does not know the stopped driver, see Wood, 106 F.3d at 948;

United States v. Bloom, 975 F.2d 1447, 1458 (10th Cir. 1992), overruled on other

grounds United States v. Little, 18 F.3d 1499, 1504 (10th Cir. 1994); United

States v. Hall, 978 F.2d 616, 621 (10th Cir. 1992), in numerous cases we have

considered nervousness as a factor supporting reasonable suspicion without

noting whether the officer knew the stopped driver or not. See, e.g., Soto-

Cervantes, 138 F.3d at 1324; Hunnicutt, 135 F.3d at 1350; Soto, 988 F.2d at 1556.

To totally discount an officer’s observations of behavior of a stopped driver that

is consistent with nervousness because the officer had no prior acquaintance with

the driver defies commonsense and practical experience. It is highly unlikely that

an officer conducting a traffic stop will know the stopped driver, but officers can

compare an individual’s behavior with the behavior of others they have observed.

Although Trooper Guerrero acknowledged it was not unusual for people stopped

for traffic violations to appear nervous, he said the shakiness he observed in

-5- Salzano was unusual. I would not discount Salzano’s nervousness outright, but

would consider it as a part of the totality of circumstances that can provide some

support for reasonable suspicion.

Further, Salzano’s implausible travel plans were neither innocuous nor

insignificant. The rental agreement showed the rent for the R.V. was $3,900 and

Salzano told the officer the R.V. got 6.7 miles per gallon. While there could be

many innocent explanations for the use of such an expensive means for one

person to travel across the United States, it was so unusual that it is a legitimate

factor supporting suspicion of drug trafficking. Cf. Sokolow, 490 U.S. at 8-9.

Moreover, the inconsistency between the notation on the rental agreement of a

party of three and the fact that Salzano was traveling alone was a legitimate

consideration. The majority finds it significant that the R.V. was not riding low;

however, one obvious reason for renting a large vehicle to transport drugs is a

large vehicle can carry heavier loads without riding low.

I would also conclude the evergreen odor cannot be discounted outright.

While the use of pine or evergreen as a masking odor was new to the officer, he

was aware drug couriers use a variety of masking agents. See Villa-Chaparro,

115 F.3d at 801 (laundry detergent); United States v. Christian, 43 F.3d 527, 530

(10th Cir. 1994) (freshly-lit cigarette); United States v. Sanchez-Valderuten, 11

F.3d 985, 989 (10th Cir. 1993) (coffee and air freshener); United States v. Stone,

-6- 866 F.2d 359, 362 (10th Cir. 1989) (patchouli oil). We have repeatedly

recognized that air fresheners are often used as masking agents and it is common

knowledge that air fresheners are frequently pine or evergreen scented. One of

the most common automobile air fresheners is in the shape of a pine tree. See

Car-Freshener Corp. v. S.C. Johnson & Son, Inc., 70 F.3d 267 (2d Cir. 1995). In

light of the variety of masking agents used in the drug trade, it was not

unreasonable for the officer to believe the pine or evergreen scent could be a

masking odor intended to hide the odor of drugs. We must give deference to the

officer’s ability to draw inferences and make judgments that might elude an

untrained person. Cortez, 449 U.S. at 418. Nor should we discount the evergreen

odor as a factor outright merely because a fresh evergreen wreath displayed

during the Christmas season is the apparent source of the odor. Masking odors

provide support for reasonable suspicion even when their source is visible, see

Villa-Chaparro, 115 F.3d at 802; Christian, 43 F.3d at 530, regardless of whether

the odor is appropriate or inappropriate for the season.

The evergreen odor, combined with Salzano’s nervousness and his use of

an unusually expensive means for one person to travel across the United States in

the winter, were sufficient to establish reasonable suspicion that he was

transporting drugs. Cf. United States v. Mendez, 118 F.3d 1426, 1431-32 (10th

Cir. 1997) (contradictory, implausible travel plans, crooked dashboard face plate,

-7- and dismounted radio, suggesting possible hidden compartment, held sufficient);

Sanchez-Valderuten, 11 F.3d at 989 (unlikely route, masking odors, and evasion

of officer’s questions held sufficient); Stone, 866 F.2d at 362 (masking odor and

DEA computer indication that defendant was suspected of involvement in drug

trafficking held sufficient). I would affirm the district court’s ruling that

Salzano’s detention was supported by reasonable suspicion.

As a consequence of concluding Salzano’s detention was supported by

reasonable suspicion, I would address Salzano’s sentencing issues and conclude

only his “safety valve” issue has merit and remand for further factfinding and

potential resentencing.

Salzano contends he was entitled to a reduced sentence under the “safety

valve” provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. Under the “safety

valve” provision, the statutory minimum sentence for certain drug crimes is

inapplicable if the court finds the defendant has a minimal criminal history, did

not use or threaten violence, possess a dangerous weapon, cause death or serious

bodily injury, was not a leader, organizer, or supervisor of others in the offense,

was not engaged in a continuing criminal enterprise, and “not later than the time

of the sentencing hearing . . . had truthfully provided to the Government all

information and evidence the defendant has concerning the offense or offenses

that were part of the same course of conduct or of a common scheme or plan.” §

-8- 5C1.2. The government agreed Salzano met all but the last requirement. It did

not believe he told everything he knew about the crime. In particular, the

government was skeptical about Salzano’s professed ignorance about the intended

recipients of the drugs. It was also skeptical of his professed ignorance of any

specific identifying information about the source of the drugs other than their

fairly common names and general descriptions. The government found Salzano’s

professed ignorance implausible in light of his age, education, and business

experience. However, because the government lacked hard evidence of

nondisclosure, it offered to consider a report from a reputable polygraph

examiner, something it usually would not do. Salzano did not provide a

polygraph report before sentencing.

A defendant bears the burden of proving the applicability of the safety

valve provision by a preponderance of the evidence. United States v. Verners,

103 F.3d 108, 110 (10th Cir. 1996). The district court’s decision is reviewed only

for clear error. United States v. Roman-Zarate, 115 F.3d 778, 784 (10th Cir.

1997).

Salzano presented expert evidence that it is likely a courier would not know

the drug recipient’s identity and would not necessarily know in advance the

details of the delivery. Couriers are told only what they need to know. Typically,

a courier is told to drive to a specific location and to wait, or the courier is given

-9- a phone number to call upon arrival at a destination city for instructions. Lack of

evidence of phone calls to the east coast indicates Salzano did not know the

recipients, and lack of evidence of unexplained wealth or prior involvement in

drug distribution indicated Salzano was a mere courier with no ownership interest

in the drugs.

The government took the position that Salzano’s statement at his

presentence debriefing that he did not know the recipients was inconsistent with

statements made to the officers on the day of his arrest. In the only specific

finding of fact on the issue, the district court agreed. However, Salzano did not

make inconsistent statements. His statements to the officers on the day of his

arrest show only he knew enough about the recipients to be afraid they would kill

him or his family if they learned he cooperated. He may have been warned by the

source or may have simply made a reasonable assumption. Nor do his statements

that he would carry out a controlled delivery if he got a “real good deal” from the

government show he knew the recipients because it is common for couriers not to

know the identities of recipients.

Because the only finding of fact supporting the conclusion that Salzano did

not disclose everything he knew about the crime was clearly erroneous, I would

remand for further factfinding on the question of whether the safety valve

provision of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 applies in this case.

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