State v. $127,930 United States Currency , 904 N.W.2d 307 ( 2017 )

Tufte, Justice.

[¶ 1] -Anoulak Thornsavan appeals from an order denying his motion to suppress and from the civil judgment forfeiting $127,930 to the State. We affirm, concluding there was reasonable suspicion to extend the traffic stop and a Miranda warning was not required.

I

[¶ 2] In July 2015, Officer Mason Ware pulled over Thornsavan, along with his passenger, Saravanh Phommakhy, on Interstate 94. Ware stopped Thornsavan because it appeared to him that the car had excessive window tint. Prior to the stop, Ware checked the vehicle registration in his database, which indicated that the vehicle was registered to an individual born in 1937. Ware noted that both Thornsavan and Phommakhy looked as though they were in their late 20’s or early 30’s. Ware also found it significant that neither Thornsavan or Phommakhy acknowledged him as he drove alongside' them; instead, they looked straight ahead.

[¶ 3] Walking toward the stopped car, Ware saw a pillow, blanket, and backpack in the backseat of the car, but hot any luggage. Soon after making contact, Ware asked for licenses and registration. When Thornsavan reached into his center console to obtain his information, Ware saw a “bundle of cash” in the console with a $50 bill on top of the stack and a $20 bill on the bottom. Thornsavan then gave Ware a photocopy of the vehicle title. The photocopy indicated that the ear had been purchased just four days prior. Ware testified that Thornsavan and Phommakhy appeared nervous, avoided eye contact, stuttered, and displayed tremors in their hands. Ware tested the tint of Thornsa-van’s driver-side window, and the test indicated' a violation of the vehicle tint law. Ware asked Thornsavan to sit in his squad car, and Thornsavan complied.

[¶4] While in the squad ear, Ware checked the licenses and registration, and inquired into Thornsavan’s travel plans. Thornsavan told Ware that he and Phom-makhy were driving “straight through”, to Seattle to visit a friend who was going to show them around the city. Ware testified that, since the day of the stop was a Friday and Thornsavan said he was planning on returning by Monday, Thornsavan would apparently be spending only a few hours in Seattle. Thornsavan originally stated that he was returning to Minneapolis by Monday, but later said his return day would be Tuesday.

[¶ 5] Ware’s questioning then turned to the recent car purchase. Ware testified that Thornsavan didn’t give him a direct answer right away as to how much he paid for his car. Thornsavan changed his recollection of the sale price from $4,400 to $4,300, Ware thought this was odd since Thornsavan had just purchased the car. Additionally, the title indicated the car was purchased for $2,500. Thornsavan told Ware that he had put $2,500 as the price on the title because the seller had told him to write in any amount and Thornsavan decided to write $2,500 to avoid paying higher taxes. Next, Ware inquired into the relationship between Thornsavan and Phommakhy. Thornsavan told Ware- that the two were’cousins and roommates. The addresses on their driver’s licenses, however, did not match. Thornsavan also became increasingly nervous while in the. squad car, especially so when Ware’s computer made noises or when Ware was typing. Thornsavan asked multiple .times if everything was “checking out’’ with the computer searches.

■ [¶ 6] Ware asked Thornsavan about the contents of his car just prior to issuing a warning citation. Specifically, Ware testified:

I had asked him if there was any drugs, guns,, anything illegal in the vehicle, any large sums of money, which during the answering, he did—his -answers were consistent up until I asked him about the large sums of money. At which point, he had stated, “No, no” twice instead of the—before he was just saying, “Oh, no,” “No,” and then when it came to large sums of money, he did say, “No, no.”

Ware then issued Thornsavan a warning citation for the excessive tint. Ware asked Thornsavan if he would consent to a search of his vehicle. Thornsavan declined. Ware informed Thornsavan that his car would be detained until a drug dog inspected the car, but told Thornsavan he was free to leave. Thornsavan then got-out of the car and sat in the ditch.

[¶ 7] Officer Jed Dahnke arrived with the drug dog, and the dog alerted on-the trunk of the car. The officers searched the trunk and found two duffle bags containing vacuum-sealed blocks of cash' with dryer sheets in between the sealed-layers. The total cash amount found and seized by law enforcement-was $127,930, which included $930 found in the center console. Thornsa-van filed a motion to suppress his statements and the money found. The district court denied the motion to suppress and ordered the money to be forfeited.

II

[¶8] “When reviewing a trial court’s ruling on a motion to suppress, we defer to the court’s findings of fact, and resolve conflicts in the evidence in favor.of affirmance.” State v. Guscette, 2004, ND 71, ¶ 5, 678 N.W.2d 126.

We will affirm a trial court’s disposition of a motion to ■ suppress unless, after resolving conflicting evidence in favor of affirmance, there is insufficient competent evidence fairly capable of-supporting the trial court’s findings, or the decision is contrary to the manifest weight of the evidence. Our deferential - standard of review recognizes the importance of a trial court’s opportunity to assess the credibility of the witnesses.

Id. (citation omitted). Questions of law are reviewed de novo. State v. Genre, 2006 ND 77, ¶ 12, 712 N.W.2d 624.

[¶9] We have stated that “traffic violations, even if. considered common or minor, constitute prohibited conduct and, therefore, - provide officers with requisite suspicion for conducting investigatory stops.” State v. Stadsvold, 456 N.W.2d 295, 296 (N.D. 1990). Here, Ware observed that Thornsavan’s vehicle appeared to have excessive tint when he drove next to it. On the-basis of his training and experience, Ware had reasonable suspicion to stop Thornsavan. Thornsavan concedes the initial traffic stop was supported by reasonable suspicion.

III

[¶ 10] Thornsavan argues that law enforcement lacked reasonable suspicion to detain him or his car beyond the initial traffic stop.and that his statements and the.money seized must be suppressed in this forfeiture action.

[¶ 11] A traffic stop becomes improper if the original purpose of the stop ceases and the officer no longer has reasonable suspicion of another crime. State v. Fields, 2003 ND 81, ¶ 10, 662 N.W.2d 242. As this Court noted in Adan:

The duration of the investigatory detention may continue as long as reasonably necessary to conduct [the officer’s duties resulting from the traffic stop] and to issue a warning or citation. When the original purpose of the traffic stop is complete, the officer must have a-reasonable suspicion that criminal activity is.afoot to continue the detention. Any further detention, without reasonable suspicion, violates the traffic offender’s Fourth Amendment rights against unreasonable searches and seizures.

State v. Adan, 2016 ND 215, ¶ 11, 886 N.W.2d 841 (quotations and citations omiR ted). “[E]videnee obtained in violation .of the Fourth Amendment’s protections against unreasonable searches must be suppressed as inadmissible under the exclusionary rule.” State v. Gregg, 2000 ND 154, ¶ 23, 615 N.W.2d 515. In determining whether reasonable suspicion is present, we look at the totality of the circumstances and take into account inferences and deductions that an investigating officer would make. Fields, at ¶ 13.

[¶ 12] The initial stop for excessive tint ended when the citation was issued. Id. at ¶ 9 (concluding that after an officer issues a traffic citation, the investigative purposes of the traffic stop are complete). Although Ware told Thornsavan. he was free to leave, Ware said the car would be detained until a drug dog arrived. Ware needed reasonable suspicion to seize Thornsavan’s car for a dog sniff. See State v. Hall, 2017 ND 124, ¶¶ 19-22, 894 N.W.2d 836 (requiring reasonable suspicion to conduct a dog sniff on a seized backpack); United States v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (stating same requirement for seized luggage). Therefore, the issue is whether Ware had reasonable suspicion to continue seizing Thornsavan’s vehicle after the citation was given.

[¶ 13] We have held that '“[a]n individual’s nervousness during a -traffic stop is a pertinent factor in determining reasonable suspicion.” Adan, 2016 ND 215, ¶ 15, 886 N.W.2d 841 (quotations omitted). Ware testified that throughout the stop, Thorn-savan and Phommakhy appeared unusually nervous, avoided eye contact, stuttered while speaking, and appeared to tremble. Thornsavan became increasingly nervous when Ware’s computer made noises or when Ware typed. Thornsavan asked multiple tipies whether everything was “checking out” with the computer searches. Although nervousness alone is insufficient to show, reasonable suspicion, id., the-district court’s finding .that Thornsavan was nervous throughout the stop and that he became increasingly, nervous at times is significant, in the totality of circumstances.

. [¶-14] .In.addition .to,nervous behavior. Ware observed a “bundle of cash” in the center console with a fifty-dollar bill on top and a twenty-dollar .bill on the bottom. Ware’s observation provided .some evidence- that either the vehicle, contained drugs or that the-money was derived frarn an illegal activity such as drug trafficking. See United States v. $67,220,00 in U.S. Currency, 957 F.2d 280, 285 (6th Cir. 1992) (stating that “carrying a large sum of cash is strong evidence of some relationship with illegal drugs”).

[¶ 15] Unusual or suspicious travel plans may also support reasonable suspicion. Fields, 2003 ND 81, ¶ 20, 662 N.W.2d 242. Here, the destination of the trip was Seattle, which Ware testified was a known source location for trafficking marijuana. Further, Thornsavan was driving “straight through” from Minneapolis to Seattle. Ware stated that while the travel time would have been twenty hours, Thornsa-van was only going to be visiting a friend for a few hours in Seattle. This was supported by the lack of visible luggage and the items in the backseat—a backpack, a blanket, and a pillow. The travel distance to spend a relatively short time in Seattle, a source city for drugs, lends some suspicion that illegal activity was afoot. See United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (finding a twenty-hour trip from Honolulu to Miami to spend forty-eight hours in Miami to be a relevant factor).

[¶ 16] While not exclusive to drug trafficking, the circumstances concerning Thornsavan’s vehicle title and the price of his vehicle contributed to reasonable suspicion. First, Ware’s initial registration check showed the car was registered to an individual born in 1937, but both Thornsa-van and Phommakhy appeared to be in their late 20’s or early 30’s. Second, Thorn-savan provided a photocopied title, as opposed to the original. Third, the title indicated that the car had been purchased only four days prior. Fourth, Thornsavan* gave inconsistent statements as to the price of the car (first stating $4,400, then $4,300). Last, Thornsavan’s statements as to the price of his car did not match the price oh the title, which stated it sold for $2,500. While not immediately suggestive of a particular crime, these events provide some support in favor of reasonable suspicion.

[¶ 17] The district court’s other findings supporting reasonable suspicion include: neither Thornsavan nor Phomma-khy acknowledged Ware driving alongside; Thornsavan gave inconsistent statements as to the return day; although Thornsavan stated that he and Phommakhy were roommates, the'addresses on their licenses did not match; and Thornsavan’s break from a single “no” or “oh, no” to a double “no” when asked whether he had any large sums of money in his car. Like a determination of probable cause, reasonable suspicion is determined by the totality of circumstances. The court considers the sum of the circumstances as a “laminated total” and not by separately assessing the individual facts. State v. Lark, 2017 ND 251, ¶ 19, 902 N.W.2d 739. Although no one fact before the court may by itself support reasonable suspicion, several taken together can acquire as a whole a significance they lack when taken individually. Most significant here was the long-distance, short-duration trip to a city known as a source for marijuana trafficking while carrying á bundle of cash visible in the center console.

[¶ 18] We conclude there was sufficient competent evidence to support the district court’s findings and these findings ■ meet the'legal standard for reasonable suspicion.

IV

[¶ 19] Thornsavan argues that law enforcement violated his Fifth Amendment right- against self-incrimination by questioning him without giving him a Miranda warning. Thornsavan contends that Ware conducted a custodial interrogation while the two of them were in Ware’s squad car.

[¶ 20] A Miranda warning neéds to be provided only when the suspect is subject to custodial interrogation. Genre, 2006 ND 77, ¶ 23, 712 N.W.2d 624. “The test of custody is formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest.” State v. Helmenstein, 2000 ND 223, ¶ 13, 620 N.W.2d 581 (quotation omitted). This test is objective and “does not depend on the arresting officer’s subjective motive or thoughts.” Id. We thus ask “how a reasonable man in the suspect’s position would have understood his situation.” Id. at ¶ 14 (quotation omitted). “Whether a suspect is ⅛ custody^ and entitled to a Miranda warning is a mixed question of law and fact and, therefore, is fully reviewable on appeal.” Genre, at ¶ 23. “An individual detained during a routine traffic stop generally is not in custody for the purposes of Miranda.” Id. at ¶ 24 (quotations omitted). Similarly, “ordering a driver out of the vehicle for officer safety or to issue a citation is reasonable and does not result in a custodial interrogation.” Id.; see also State v. Mertz, 362 N.W.2d 410, 412 (N.D. 1985) (ordering driver into a squad car was reasonable).

[¶ 21] Thornsavan argues that he was in custody when Ware ordered him to step out of his vehicle and sit in his squad car. Genre, however, concluded that such action, especially when officer safety is a concern, does not transform a detention into custodial interrogation. Genre, 2006 ND 77, ¶ 25, 712 N.W.2d 624. Ware testified that having Thornsavan step out of his vehicle and sit in his squad car was due to: 1) Thornsavan’s nervous behavior; 2) the fact that Thornsavan, initially, had his hand down by his lap, which led Ware to believe that Thornsavan could have been concealing something; and 3) officer safety more generally. Under the circumstances, Ware’s request was reasonable and did not transform the stop into a custodial interrogation.

[¶ 22] Inside the squad car, Ware asked Thornsavan questions regarding his travel plans, the recent purchase of his car, his relationship with Phommakhy, the contents of his car, and his willingness to consent to a search of his car. These were common sense investigatory questions that Thornsavan should have reasonably expected to’answer during his traffic stop. See Genre, 2006 ND 77, ¶ 26, 712 N.W.2d 624 (stating that “[d]uring a traffic stop, a driver should reasonably expect to answer common sense investigatory questions”).

[¶23] Because a reasonable person in Thornsavan’s position would not believe his freedom of movement was restrained to the same degree as a formal arrest, we conclude that Thornsavan was not in custody for the purpose of Miranda.

V

[¶ 24] We affirm the district court’s forfeiture judgment and its, order denying Thornsavan’s motion to suppress.

[¶ 25] Jerod E. Tufte Jon J. Jensen Lisa Fair McEvers Gerald W. VandeWalle, G.J.