United States v. Wilkie, Edward L. , 182 F. App'x 533 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 19, 2006
Decided May 5, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Nos. 05-2878 & 05-3155
Appeals from the United States District
UNITED STATES OF AMERICA, Court for the Southern District of
Plaintiff-Appellee, Indiana, Terre Haute Division
v. No. 04 CR 11
EDWARD L. WILKIE and Larry J. McKinney,
MICHAEL D. CLARK, Chief Judge.
Defendants-Appellants.
ORDER
Edward Wilkie and Michael Clark challenge the denial of their motion to
suppress drugs seized during a traffic stop. Their sole argument is that the officers
unreasonably prolonged the stop beyond its “limited purpose.” We affirm.
I.
The facts are not here disputed. On June 17, 2004, Sam Sellers, an officer of
the Greencastle, Indiana Police Department, and Heath Kerns, an officer of the
nearby Roachdale Police Department, were patrolling on a special traffic
enforcement detail on Interstate 70. Also in the car was Sellers’s assigned K-9,
Jasper. At 2:09 a.m. the officers stopped a Ford F-150 truck driven by Wilkie
because his license plate was not properly illuminated as required by Ind. Code § 9-
Nos. 05-2878 & 05-3155 Page 2
19-6-4(e). Clark was Wilkie’s sole passenger. A camera mounted on Sellers’s
dashboard recorded subsequent events although there is no audio.1
As the officers approached the truck they observed four suitcases in the open
bed of the truck (a fifth was later found in the extended cab) and eight or nine tree-
shaped air fresheners hanging in the cab, most of them on the rear-view mirror.
Sellers said he noticed “Clark’s breathing was labored and [his] carotid artery
pulsating.” Wilkie gave Sellers the truck registration and part of a torn
Pennsylvania driver’s license. In part to protect himself from passing traffic,
Sellers ordered Wilkie to stand with him between their two vehicles while he
collected information missing from the license that was needed to determine its
validity. While Wilkie gave Sellers the missing information, Kerns returned to the
police cruiser to summon backup. Wilkie told Sellers that he and Clark were
driving home to New York from San Diego, where they had been visiting Clark’s
brother for three days.
Six minutes into the stop Sellers finished talking to Wilkie. Rather than
immediately calling dispatch to validate Wilkie’s license, Sellers told Wilkie to wait
by the cruiser and went to speak with Clark who was still trying to locate proof of
insurance, which he never located. On the video it appears that eight or nine more
minutes passed before Sellers finished talking to Clark—their conversation was
interrupted for a few minutes when Sellers left Clark to confer with Officer
Simmons of the Putnam County Sheriff’s Department, who had just arrived in
response to Kerns’s call. Clark told Sellers that he and Wilkie had spent five days
in San Diego, but did not mention visiting his brother; he said they stayed at a
hotel. The officers apparently spent another five minutes conferring before Sellers
retrieved Jasper from his police cruiser and, eighteen to twenty minutes into the
stop, ordered him to sniff around the truck. Jasper almost immediately alerted at
the back of the vehicle, and a search of the four suitcases in the bed of the truck and
a fifth suitcase in the cab revealed 66 kilograms of marijuana. At 2:31, just after
the marijuana was discovered, Sellers called in Wilkie’s license information for
validation.2 Officers with a warrant later discovered three kilograms of cocaine in a
false spare tire.
The relevant portion of the video is obscured by condensation on the
1
windshield.
2
The government was unable to give the precise time of the call until after the
suppression hearing, but submitted the dispatch run sheet before the district judge
issued his decision.
Nos. 05-2878 & 05-3155 Page 3
Wilkie and Clark moved to suppress the drugs, arguing as relevant to this
appeal that their detention was unreasonable in scope and duration. The district
court found that “[u]pon initial approach and contact with the occupants of the
truck, several intervening circumstances gave rise to a reasonable and articulable
suspicion of criminal activity.” Specifically, the court relied on: the defendants
slowing below the speed limit, the eight or nine air fresheners, Clark’s nervousness,
the four suitcases in the truck’s bed, and Wilkie’s torn driver’s license. The
disparity between Wilkie’s and Clark’s account of their trip, the court further found,
“added to the reasonable suspicion developed.”
II.
On appeal, Wilkie and Clark admit that their license plate was not
illuminated and that this allowed Sellers to stop them. They also concede—as they
must after Ill. v. Caballes, 543 U.S. 405 (2005)—that Sellers needed nothing more
to deploy Jasper to sniff around their truck. But almost twenty minutes passed
before Jasper indicated the presence of drugs and, they assert, much of that delay
was unrelated to the stop’s “limited purpose”—issuing a warning or citation for the
traffic infraction. And because Sellers’s observations during that time never yielded
a reasonable suspicion of any crime other than the traffic infraction, they contend,
the stop became unreasonably long in violation of the Fourth Amendment. The
government cannot explain why Sellers waited instead of immediately deploying
Jasper, but defends the district court’s determination that reasonable suspicion
justified the delay.
When reviewing the denial of a motion to suppress we review questions of
law de novo and findings of fact for clear error. United States v. Mendoza, 438 F.3d
792, 795 (7th Cir. 2006). The premise of the parties’ arguments is that Terry v.
Ohio, 392 U.S. 1 (1968), governs police conduct during a traffic stop supported by
probable cause to believe the vehicle’s occupants have committed a traffic
infraction. However, such stops are arrests, Atwater v. City of Lago Vista, 532 U.S.
318, 354 (2001); Whren v. United States, 517 U.S. 806, 809-10 (1996), and we have
rejected the premise that Terry governs them, United States v. Childs, 277 F.3d
947, 952-54 (7th Cir. 2002) (en banc); see also United States v. Carpenter, 406 F.3d
915, 916 (7th Cir. 2005). Though arresting officers may not unreasonably prolong a
traffic stop with questions unrelated to the stop’s purpose, “[q]uestions that hold
potential for detecting crime, yet create little or no inconvenience, do not turn
reasonable detention into unreasonable detention.” Childs, 277 F.3d at 954.
Wilkie and Clark are partly to blame for the length of the stop. Because
Wilkie’s license was missing information, Sellers had to ask him additional
questions to determine whether it was valid. And Clark spent several minutes
unsuccessfully trying to locate proof of insurance. The two contend that they were
Nos. 05-2878 & 05-3155 Page 4
not required to carry proof of insurance because they were not from Indiana, and
that the time Clark spent looking for the papers made the stop unreasonable. But
Clark was free to tell the officers he did not have proof of insurance or could not
locate it. See Childs, 277 F.3d at 954 (“all suspects . . . may protect themselves fully
by declining to answer”). The delay was caused by Clark’s search for the papers,
not Sellers’s request for them. The officers prolonged the stop in talking to Clark
and conferring with one another, but the incremental delay to investigate possible
drug trafficking was too small an inconvenience to make the lawful arrest
unreasonably long. See id.; United States v. Martin, 422 F.3d 597, 601-02 (7th Cir.
2005); United States v. Muriel, 418 F.3d 720, 725 (7th Cir. 2005); Carpenter, 406
F.3d at 916-17. It was therefore unnecessary for the district court to decide
whether circumstances beyond the traffic infraction justified the officers’ conduct.
Even if the traffic infraction alone was insufficient to justify the length of the
stop, however, the district court was right that the length of the stop was
reasonable in light of the circumstances that developed. That a defendant
“appeared nervous” is a subjective impression that we have held contributes
nothing to the objective basis for suspecting criminal activity, see United States v.
Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (collecting cases), and this must
remain true notwithstanding an officer’s attempt to recast his subjective
impressions in objective-sounding terms like “labored breathing” or “pulsating
carotid artery.” Likewise, that a person slows below the speed limit after passing
police adds nothing to a stop’s objective basis. Id. The district court should not
have given these observations any weight.
Nevertheless other circumstances that arose before Sellers finished taking
Wilkie’s license information established a reasonable basis for suspecting that he
and Clark were transporting drugs. Wilkie told Sellers they had driven
cross-country from New York to San Diego for just a three-day visit. See United
States v. Currency, U.S. $42,500.00, 283 F.3d 977, 981 (9th Cir. 2002) (giving weight
to fact that claimant was “traveling from New York to San Diego, well known
source cities for drugs”). For this brief trip the two defendants had five suitcases
between them. Moreover, there were eight or nine air fresheners hanging in the
cab. See United States v. Patterson, 65 F.3d 68, 71 (7th Cir. 1995) (smell of air
freshener added to probable cause); see also United States v. Fuse, 391 F.3d 924,
929-30 (8th Cir. 2004) (smell of air freshener added to reasonable suspicion); United
States v. Foreman, 369 F.3d 776, 784 (4th Cir. 2004) (several air fresheners hanging
from rearview mirror added to reasonable suspicion). United States v. West, 219
F.3d 1171, 1178-79 (10th Cir. 2000) (“[t]he scent of air freshener is properly
considered as a factor in the probable cause analysis”). These objective facts made
it reasonable for Sellers to briefly detain Wilkie and Clark for questioning and,
when their answers did not dispel his suspicions, to detain them a little longer to
deploy Jasper.
Nos. 05-2878 & 05-3155 Page 5
But, Wilkie and Clark persist in arguing, there was nothing to consider
suspicious because any disparity in their stories is attributable to the framing of
Sellers’s questions. The amount of luggage wasn’t suspicious, they posit, because
Sellers testified that he might not have found the same amount unusual if Wilkie
and Clark were women. Last, no court has relied on the mere presence of air
fresheners, they assert: it is the smell of air freshener that is probative of drug
trafficking. But Sellers testified that he asked Wilkie and Clark identical questions
and nothing in the record contradicts him. As to the amount of luggage, the reason
Sellers found it suspicious is irrelevant; all that matters is whether it was unusual
enough to be objectively probative of drug trafficking. See Foreman, 369 F.3d at
781. Finally, at least one circuit has held that the presence of air fresheners added
to reasonable suspicion. Foreman, 369 F.3d at 784. In light of the other
circumstances the air fresheners were surely suspicious here even though nobody
testified (or was asked) about their scent.
III.
We AFFIRM the district court’s denial of the suppression motion because the
traffic infraction alone justified the eighteen to twenty minute stop here. In any
event, the district court was right that the stop was not too long in light of the
circumstances that developed.