F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 16, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. Nos. 05-4241 and 05-4248 (D. Utah) ROBERT W ISNIEW SKI, (D.C. No. 2:03-CR-390-DB)
Defendant-Appellant.
----------------------------------
v.
EDD Y G AM EZ,
OR D ER AND JUDGM ENT *
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Before BRISCO E and HA RTZ, Circuit Judges, and KR IEGER , District Judge. **
In this consolidated appeal, Eddy Gamez and Robert W isniewski contend
that the trial court erred in denying their motions to suppress evidence seized from
a truck during a traffic stop. In specific, they argue that the trial court erred in
finding that the observations of Sgt. M angelson, who conducted the stop,
constituted reasonable suspicion to detain the driver of the truck, M r. W isniew ski,
beyond the time necessary to verify his license and the vehicle’s registration.
Thus, they contend that evidence obtained during a search that grew out of the
unlawful detention should be suppressed. 1 W e exercise jurisdiction pursuant to 28
U.S.C. § 1291 and affirm.
** The Honorable M arcia S. Krieger, United States District Judge for the District of Colorado, sitting by designation. 1 M r. W isniewski and M r. Gamez do not challenge the validity of the initial traffic stop, nor do they contend that M r. W isniewski’s consent to search the truck was invalid. Indeed, they make no specific argument as to why the evidence seized from the truck should be suppressed in light of M r. W isniewski’s consent to search the truck. W hen there has been a Fourth Amendment violation, a consent to search which follows the violation can nevertheless be valid. See United States v. M elendez-G arcia, 28 F.3d 1046, 1053 (10th Cir. 1994). In such circumstances, we consider whether there was a break in the causal connection between the constitutional violation and the evidence obtained. See id. Neither M r. W isniewski nor M r. Gamez specifically contend that the consent to search was tainted by the alleged Fourth Amendment violation.
-2- I. Facts
M r. W isniewski filed a motion to suppress evidence obtained during a
search of a truck he had been driving along I-15 near Nephi, Utah. He argued,
inter alia, that the officer who conducted the stop lacked reasonable suspicion to
detain him after his driver’s license and the truck’s registration had been cleared
through dispatch. By separate motion, M r. Gamez joined in M r. W isniewski’s
motion.
The Government opposed the motions. It argued that M r. W isniewski and
M r. Gamez both lacked standing to challenge the search of the truck, and that M r.
W isniewski’s detention was supported by reasonable suspicion.
Following four evidentiary hearings on the motion, the trial court found the
following facts. 2 W ith one exception, specified below , these findings are
unchallenged.
At 9:30 a.m. on M ay 22, 2003, Sergeant Paul M angelson of the Utah
Highway Patrol was monitoring traffic on I-15 south of Nephi, Utah, from a
crossover in the median of the interstate. He observed a black pickup truck
heading northbound on the interstate. His radar gun indicated that the truck was
traveling at 63 m.p.h., well below the 75 m.p.h. speed limit, but he observed that
2 Evidentiary hearings were held on August 7, 2003, August 12, 2003, October 23, 2003 and July 20, 2004.
-3- the driver appeared to be “glued” to the steering wheel. Believing that the driver
was impaired by fatigue or something else, he began to follow the truck.
Sgt. M angelson then observed the truck cross the lane divider on the right-
hand side of the interstate several times. He pulled up next to the truck, noticed
that the driver seemed to be “in a trance” and was still “glued” to the steering
wheel, and signaled for the truck to stop in order to investigate whether the driver
was overly tired.
After the truck stopped, Sgt. M angelson approached it from the passenger
side and asked the sole occupant, Robert W isniewski, for his driver’s license and
the vehicle’s registration. M r. W isniewski produced an Indiana driver’s license
and a registration document from Indiana. Sgt. M angelson observed that M r.
W isniew ski appeared nervous, his hand was trembling, he appeared to have trouble
speaking because his mouth was “dry,” and his stomach was “visibly churning.” 3
Sgt. M angelson described M r. W isniewski as appearing “scared to death.”
According to its registration, the truck was not owned by M r. W isniewski
but instead was owned by Eddy Gamez. 4 Sgt. M angelson asked M r. W isniewski
3 Both M r. W isniewski and M r. Gamez contend that this factual finding was clearly erroneous because it is anatomically impossible for a stomach to “visibly churn.” The Government does not address this contention. 4 M r. Gamez lived in California but he stored the truck at the home of a friend named “Socio” in Indiana. At one point, M r. Gamez stated during a (continued...)
-4- who owned the truck; M r. W isniewski identified “Eddy” as the owner but
stumbled over Eddy’s last name, identifying it as something other than Gamez.
Sgt. M angelson inquired as to why M r. W isniewski was driving the truck.
M r. W isniewski responded that Eddy was a friend who had loaned him the truck.
Sgt. M angelson then asked M r. W isniewski where his trip had originated. M r.
W isniewski responded that he had been in Las Vegas looking for construction
work. Sgt. M angelson had doubts about this answer because M r. W isniewski’s
hands did not appear to be those of a construction worker – they were smooth,
rather than rough and calloused.
Sgt. M angelson detected a “very strong” odor of air freshener and observed
a cell phone, road atlas and radar detector in the truck. He saw very little luggage
and no construction tools in the cab of the truck, but he could not determine
whether such items were present in the covered truck bed. Sgt. M angelson asked
M r. W isniewski to exit the truck to perform sobriety tests. The results of these
tests indicated that M r. W isniew ski was fatigued but not intoxicated or physically
impaired.
After conducting the sobriety tests, and based upon his experience and
4 (...continued) recorded conversation with his attorney that he agreed to let M r. W isniewski borrow the truck to look for work. He later testified that the cocaine found in the truck was his and that M r. W isniewski was transporting it as a favor to him.
-5- training as a highway patrol trooper and drug interdiction specialist, Sgt.
M angelson suspected that M r. W isniew ski was transporting contraband. 5 Sgt.
M angelson escorted M r. W isniewski to his patrol car. He patted him down for
weapons, then seated him in the patrol car while he verified the driver’s license
and whether the truck was reported stolen. 6 W hile sitting in the patrol car, M r.
W isniewski volunteered that he had been arrested five times for driving under the
influence. The dispatcher reported that his driver’s license was valid and that
there was no report of the truck being stolen.
At this point, M r. W isniew ski asked whether he was free to go. 7 Sgt.
M angelson answered that M r. W isniewski was not free to leave because he
5 At the time of his encounter with M r. W isniewski, Sgt. M angelson had worked for the Utah Highway Patrol for approximately 37 years. He had specialized training in highway drug interdiction, was a member of a drug interdiction team, and trained other law enforcement officers in drug interdiction techniques. He testified that the use of third-party vehicles was comm on in drug smuggling and that drug traffickers many times are unable to provide the correct name of a vehicle’s registered owner. He also testified that he would have expected M r. W isniewski to know the name of the registered owner of the truck because it was relatively new and in good condition. He further testified that air fresheners are used by drug traffickers to mask the scent of drugs. 6 M r. W isniewski contends that this pat-down search was illegal. However, nothing was found during that search to suppress. 7 The trial court made no findings with regard to the length of the detention up to this point or thereafter. The appellants do not contend that the length of the detention was unreasonable, only that it was not supported by reasonable suspicion after verification of M r. W isniewski’s identity and the truck’s registration.
-6- believed that M r. W isniewski was transporting drugs. Sgt. M angelson stated that
he wanted to search the truck. M r. W isniewski denied transporting drugs but
authorized Sgt. M angelson to “go ahead” and search the truck. At no time in their
conversation did Sgt. M angelson raise his voice, threaten M r. W isniewski, move
closer to him, point at him, or touch him.
M r. W isniewski exited the patrol car. Another officer, Trooper Kelsey,
arrived, and assisted Sgt. M angelson in searching the truck. They found 134
bricks of cocaine, each weighing 1 kilogram, contained in four duffle bags and a
suitcase. They arrested M r. W isniewski.
Based upon these facts, the trial court denied the motions to suppress. It
concluded that (1) M r. W isniewski had standing to challenge the search of the
truck because he was in lawful possession and control of it at the time of the
search; (2) M r. Gamez, as the truck’s owner and as owner of the cocaine, also had
standing to challenge the search; (3) Sgt. M angelson had reasonable suspicion to
believe that M r. W isniewski was involved in criminal activity sufficient to justify
his detention; (4) M r. W isniewski’s consent to search the truck was valid; and
(5) Sgt. M angelson lacked probable cause to search the truck under the automobile
exception to the warrant requirement. 8
8 The parties do not challenge the trial court’s determination that Sgt. (continued...)
-7- W ith regard to reasonable suspicion, the trial court broke its analysis into
three stages: (1) from the initial stop to the conclusion of the field sobriety tests;
(2) from the conclusion of the field sobriety tests to the moment when the
dispatcher informed Sgt. M angelson that the driver’s license was valid and the
truck was not stolen; and (3) from the dispatcher’s report to the moment when M r.
W isniew ski consented to the search of the truck. In this appeal, the challenge is
limited to stage 3. W ith regard to stage 3, the trial court concluded that there was
reasonable suspicion to detain M r. W isniewski because he appeared to be
extremely nervous, the truck was registered to a third party whose name M r.
W isniew ski could not pronounce, there was a very strong odor of air freshener in
the truck, M r. W isniew ski’s travel plans w ere implausible because his hands did
not appear to be those of a construction worker, there were a cell phone, atlas and
radar detector in the truck, and there was no luggage in the truck’s main
compartment. In its analysis, the trial court declined to consider that M r.
W isniew ski was traveling from a “source city” as a factor favoring reasonable
suspicion.
M r. W isniewski was initially indicted on a single count of Possession of
8 (...continued) M angelson lacked probable cause to search the truck. Therefore, we do not address this issue.
-8- Cocaine W ith Intent to Distribute, in violation of 21 U.S.C. § 841(a)(1), and aiding
and abetting the same in violation of 18 U.S.C. § 2. Because the cocaine and its
containers revealed the presence of M r. Gamez’ fingerprints, the Government
obtained a two-count superceding indictment. It charged both M r. W isniewski and
M r. G amez with: (1) Conspiracy to Distribute Cocaine in violation of 21 U.S.C. §
846; and (2) Possession of Cocaine W ith Intent to Distribute, in violation of 21
U.S.C. § 841(a)(1), and aiding and abetting the same in violation of 18 U.S.C. § 2.
Following the denial of their suppression motions, both M r. W isniewski and M r.
Gamez entered conditional guilty pleas to Count 2. M r. W isniewski was sentenced
to 108 months imprisonment and 5 years of supervised release. M r. Gamez was
sentenced to 156 months imprisonment and 5 years of supervised release.
II. Discussion
On appeal, M r. W isniewski and M r. Gamez contend that the trial court erred
when it concluded that Sgt. M angelson’s observations constituted reasonable
suspicion to detain M r. W isniewski after the dispatcher reported that his driver’s
license was valid and that the truck was not stolen. They allege two errors in
particular: (1) that it was clear error for the trial court to find that M r.
W isniew ski’s stomach was “visibly churning;” and (2) that the trial court erred in
concluding that the information known to Sgt. M angelson gave rise to reasonable
-9- suspicion sufficient to extend M r. W isniewski’s detention beyond verification of
his license and the vehicle’s registration.
As to the second contention, the appellants argue that many of the factors
relied upon by the trial court were consistent with innocent travel and should not
have been given any weight in the determination of reasonable suspicion. In
specific, they assert that the trial court’s consideration of M r. W isniewski’s
nervousness was improper because it was not out of the ordinary. They also argue
that the truck’s ownership by M r. Gamez did not contribute to reasonable
suspicion because M r. W isniewski demonstrated that he was entitled to operate the
truck and simply mispronounced M r. Gamez’ name. They also contend that the
single air freshener did not contribute to reasonable suspicion because it could be
combined only with other innocent factors. They further note that Sgt. M angelson
did not take a close look at M r. W isniewski’s hands to confirm the absence of
callouses, not all construction work causes roughening of the hands, and the
absence of callouses is consistent with being an unemployed construction worker.
They point out that people who are traveling comm only possess road atlases, radar
detectors, and cell phones, and argue that these items can only be given an
innocent connotation. Finally, they assert that the absence of luggage in the cab of
the truck was meaningless because there was a covered cab where luggage could
be stored.
-10- The G overnment does not respond to the assertion that the trial court’s
factual finding of a “visibly churning” stomach was clearly erroneous. It
responds only that there was reasonable suspicion to detain M r. W isniewski. 9 In
particular, it argues that the following factors contributed to reasonable suspicion
– M r. W isniewski did not own the truck and could not pronounce the name on the
registration, the strong odor of air freshener, M r. W isniewski’s extreme
nervousness, the fact that M r. W isniewski appeared to be sleepy, because
individuals w ho transport drugs typically “drive straight through to their
destination,” M r. W isniewski’s failure to acknowledge the troopers as he drove
past them on the interstate, the absence of callouses on M r. W isniewski’s hands,
which suggested that he was not a construction worker, making his travel plans
implausible, the fact that M r. W isniewski was driving from a “source city” along a
drug pipeline, the absence of luggage in the passenger compartment, and the
presence of a cell phone, atlas and radar detector in the truck.
In evaluating the trial court’s ruling on the suppression motion, “we
consider the totality of the circumstances and view the evidence in a light most
9 The Government also argues that M r. Gamez lacks standing to challenge M r. W isniewski’s detention. M r. Gamez contends that the Government has not properly raised the issue of standing on appeal. Because standing to make a Fourth Amendment challenge is not jurisdictional, w e decline to address it. See United States v. DeLuca, 269 F.3d 1128, 1135 (10th Cir. 2001).
-11- favorable to the government.” United States v. Long, 176 F.3d 1304, 1307 (10th
Cir. 1999). To the extent that the trial court’s factual findings are challenged, we
review them for clear error. See United States v. Sims, 428 F.3d 945, 951 (10th
Cir. 2005). W e review the trial court’s legal conclusions de novo. See id.
The Fourth Amendment to the United States Constitution provides that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no W arrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This A mendment protects individuals from being subjected to unreasonable
searches and seizures. See Pennsylvania v. M imms, 434 U.S. 106, 108-09 (1977).
The reasonableness of the search or seizure depends upon a balance between the
public interest and the individual’s right to be free from arbitrary interference
from law enforcement officers. See id. at 109.
As we have stated in numerous opinions, a traffic stop is a seizure for
purposes of the Fourth Amendment. See, e.g., United States v. W illiams, 271 F.3d
1262, 1266 (10th Cir. 2001); United States v. Hunnicutt, 135 F.3d 1345, 1348
(10th Cir. 1998). However, it is more akin to an investigative detention than to a
custodial arrest. See Williams, 271 F.3d at 1266. Thus, the principles enunciated
in Terry v. Ohio, 392 U.S. 1 (1968) are applicable.
-12- W e have addressed the permissible parameters of a continued detention in
the scope of a traffic stop in several prior rulings. If the reasonableness of the
initial detention is not challenged, then the issue is whether the continued
detention was reasonably related in scope to the circumstances which first justified
the detention. See William s, 271 F.3d at 1266 (citing Terry). To assess its
reasonableness, we look at the length of the detention and the manner in which it
was carried out. See id. at 1267 (quoting from United States v. Holt, 264 F.3d
1215, 1230 (10th Cir. 2001)). During a routine traffic stop, an officer may request
a driver’s license and vehicle registration, run a computer check, and issue a
citation for the traffic violation. See W illiam s, 271 F.3d at 1267-68. Ordinarily,
once a driver has complied and been cleared or given a citation, he must be
allowed to proceed on his way without further delay by the law enforcement
officer for additional questioning. See United States v. Guzman, 864 F.2d 1512,
1519 (10th Cir. 1988), overruled in part on other grounds, United States v.
Botero-Ospina, 71 F.3d 783 (10th Cir. 1995). To extend the traffic stop after
completion of the verification process, the law enforcement officer must have
either the consent of the detainee or an objectively reasonable and articulable
suspicion that criminal activity has occurred or is occurring. See Williams, 271
F.3d at 1268; Hunnicutt, 135 F.3d at 1349.
As the Supreme Court explained in United States v. Arvizu, 534 U.S. 266,
-13- 274 (2002), reasonable suspicion is an abstract concept which cannot be reduced to
a “neat set of legal rules.” (Internal quotations and citations omitted). It exists
when there is a “particularized and objective basis for suspecting criminal
activity.” United States v. Tucker, 305 F.3d 1193, 1200 (10th Cir. 2002). In
determining whether an officer possessed reasonable suspicion, we review the
totality of the circumstances and consider both the quantity of information
possessed by the law enforcement officer and its reliability. Id.; see also Arvizu,
534 U.S. at 274. In such analysis, we do not evaluate the facts in isolation and
instead construe them together to discern whether an officer could objectively and
reasonably suspect that criminal activity was afoot. See Arvizu, 534 U.S. at 274 .
An “inchoate and unparticularized suspicion or ‘hunch’ is insufficient” to
support reasonable suspicion. See United States v. Hall, 978 F.2d 616, 620 (10th
Cir. 1992) (internal quotations and citations omitted). However, reasonable
suspicion may be premised upon information which is less reliable than that
required to establish probable cause. See Tucker, 305 F.3d at 1201. Factors
which are not proof of any illegal conduct and which are consistent with innocent
travel may also contribute to a reasonable suspicion. United States v. Valles, 292
F.3d 678, 680 (10th Cir. 2002) (quoting United States v. Sokolow, 490 U.S. 1, 9
(1989)). Such factors may include the absence of luggage, ownership of the
vehicle by a third party, an odor of air freshener, and implausible travel plans. See
-14- United States v. M endez, 118 F.3d 1426, 1431 (10th Cir. 1997); Hunnicutt, 135
F.3d at 1349; United States v. Santos, 403 F.3d 1120, 1129 (10th Cir. 2005);
United States v. Salzano, 158 F.3d 1107, 1114 (10th Cir. 1998). However, such
facts may be given little or no weight if they are susceptible to varying
interpretations, i.e., the absence of luggage in the backseat of a car has little
significance when the car has a trunk. See Mendez, 118 F.3d at 1431.
The trial court considered many observations by the officer in determining
that there was reasonable suspicion to detain M r. W isniewski after the dispatcher
cleared his driver’s license and the truck’s registration. Although we might have
accorded individual observations different significance than did the trial court,
when taken together, they were sufficient to amount to reasonable articulable
III. Conclusion
The trial court’s denial of the motions to suppress is AFFIRM ED.
Entered for the Court
M arcia S. Krieger District Judge
-15-