United States v. Kenneth Wayne Beck

United States Court Of Appeals
FOR THE EIGHTH CIRCUIT
_______________
No. 97-4143
_______________
United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* of Arkansas
Kenneth Wayne Beck, *
*
Defendant-Appellant. *
___________
Submitted: March 10, 1998
Filed: April 6, 1998
___________
*
Before MCMILLIAN and FAGG, Circuit Judges, and BENNETT, District Judge.
___________
BENNETT, District Judge.
Defendant Kenneth Wayne Beck was convicted following a jury trial of
possession with intent to distribute methamphetamine, in violation of 21
U.S.C. §
*
The HONORABLE MARK W. BENNETT, United States District Judge for
the Northern District of Iowa, sitting by designation.
841(a)(1), and was sentenced to 121 months imprisonment. He appeals the
denial of his motion to suppress evidence seized by law enforcement officers
during a search of his rental car following a traffic stop.
We reverse.
I. FACTUAL BACKGROUND
A. Lack of Factual Findings
The district court here made only limited factual findings on the
record, in all likelihood because the facts of this case are uncontested.
Ordinarily, Rule 12(e) of the Federal Rules of Criminal Procedure requires
that we remand a case to the district court when the district court has
failed to set out its factual findings underlying its decision on a motion
to suppress. See generally United States v. Bloomfield, 40 F.3d 910, 913-14
(8th Cir. 1994) (en banc), cert. denied, 514 U.S. 1113 (1995). However,
here, because the relevant facts in this case are undisputed, we need not
remand for further findings and may rule based on the record currently
before us. See United States v. Ali, 86 F.3d 275, 276 (2d Cir. 1996)
(holding that remand is unnecessary where “there is an abundance of
undisputed facts” regarding the circumstances surrounding defendant’s
interrogation); United States v. Soto, 988 F.2d 1548, 1554 (10th Cir. 1993)
(holding that remand unnecessary where the district court made no finding
as to evidence was sufficient to support a reasonable suspicion because the
relevant facts were undisputed); United States v. Williams, 951 F.2d 1287,
1288 (D.C. Cir. 1991) (recognizing that “there are cases in which the facts
are so certain, and the legal consequences so apparent, that little
guesswork is needed to determine the grounds for the ruling.”); cf.
Bloomfield, 40 F.3d at 914 (holding remand unnecessary and that this court
will uphold a district court's decision on a motion to suppress despite lack
of
2
factual findings if, on review of the record, it finds that "any reasonable
view of the evidence” supports the district court's decision). We turn next
to the uncontested facts of this case.
B. Uncontested facts
The uncontested testimony at the suppression hearing reveals the
following. On November 12, 1996, Officer Joe Taylor of the Conway,
Arkansas, Police Department was patrolling Interstate 40 when he observed
a green Buick with California license plates following another vehicle too
closely. Officer Taylor proceeded to pull the green Buick over for the
observed traffic infraction. Officer Taylor approached the automobile’s
passenger side and asked the driver, defendant Beck, for his license and
rental agreement. Officer Taylor explained to Beck the reason for his being
stopped. While talking to Beck, Officer Taylor observed that Beck appeared
nervous since his hands were shaking and he was looking around. Officer
Taylor also saw “fast food trash” on the Buick’s front passenger floorboard.
While Officer Taylor observed a briefcase in the rear of the automobile, he
did not see any luggage in the car’s passenger compartment. Officer Taylor
did not observe any evidence that Beck was under the influence of drugs or
intoxicants.
Officer Taylor returned to his patrol car and ran a check on Beck’s
driver’s license and a criminal history check for Beck. These inquiries
revealed that Beck’s driver’s licence was valid, and that he had no criminal
history. Following these checks, Officer Taylor returned to the passenger
side of Beck’s Buick and handed back Beck’s driver’s license and rental
agreement. Officer Taylor gave Beck a verbal warning for following another
motor vehicle too closely and then told Beck he was free to go. Officer
Taylor then turned, started to walk back to his patrol car before stopping
and
3
asking Beck if he had any guns, drugs, or knives in his automobile. Beck
turned, stared out the window, and said, “No.” Officer Taylor then asked
Beck if he could conduct a quick search of Beck’s Buick. Beck became more
nervous and asked Officer Taylor why he wanted to search his automobile.
Beck told Officer Taylor that he was just trying to get to North Carolina
for a job. Officer Taylor responded by telling Beck that he was just trying
to ascertain if Beck had any firearms or drugs in the car. Beck again
replied, “No, no.” Beck and Taylor engaged in further discussion over why
Officer Taylor wanted to search Beck’s automobile. Officer Taylor, in
Beck’s presence, radioed for Officer Tom Knopp, who is a K-9 officer, to
assist him at the scene. Officer Knopp, who had been monitoring police
radio transmissions, was already on his way to the scene of the stop with
1
his drug dog, King.
After calling for Officer Knopp, Beck and Officer Taylor resumed their
colloquy concerning Beck’s consent to a search of his automobile, with Beck
wanting to know what would happen if he refused to consent. Officer Taylor
answered Beck’s question by telling him that while no search would occur,
a drug dog would be led around the outside of Beck’s Buick. Beck then
replied, “Well, no.” At this juncture, Officer Knopp and his drug dog
arrived on the scene. Officer Taylor motioned to Officer Knopp that he
wanted Officer Knopp to get King out. Officer Taylor then instructed Beck
to get out of his automobile and to stand to the side of the car. Beck
complied with Officer Taylor’s instructions and exited the Buick. Officer
Knopp removed King from his patrol car and permitted the dog to have a drink
of water and to relieve himself along the roadway before bringing him to
Beck’s Buick. King was led around Beck’s
1
Officer Taylor, whose assignment was that of a drug interdiction officer for the
Conway Police Department, usually has a drug dog in his squad car, but did not on the
day he stopped Beck because he was patrolling in a spare squad car. Tr. at 11.
4
automobile and he alerted to the rear door on the passenger side of the
Buick. Officer Taylor informed Beck of his constitutional rights, as
required by Miranda v. Arizona, 384 U.S. 436 (1966), and inquired whether
Beck had anything illegal in the car. Beck answered “yes,” and indicated
toward his briefcase. A search of Beck’s briefcase revealed several plastic
baggies that contained a whitish-tan residue on them which subsequently
tested positive for methamphetamine. Beck was placed under arrest and a
search of his person revealed a small plastic baggie which appeared to
contain methamphetamine.
The officer then removed the contents from the Buick’s trunk and
placed King inside the trunk. King did not alert in the trunk nor to the
items removed from the trunk. Due to inclement weather, Officer Taylor had
the Buick removed from the side of the highway to a wrecker yard. At the
wrecker yard, during a search of the Buick and its contents, the police
discovered additional quantities of methamphetamine in the briefcase and
hidden in the car’s trunk.
II. DISCUSSION
A. Procedural Background
Defendant Beck timely moved to suppress the methamphetamine.
Following an evidentiary hearing, the district court denied Beck’s motion
to suppress from the bench. The district court concluded that Beck was not
detained after being told by Officer Taylor that he was free to go. The
district court further found, although “barely so,” that Officer Taylor,
from his observations of both Beck and his rental car, developed reasonable
suspicion to detain Beck.
On appeal, Beck challenges the district court’s denial of his motion
to suppress, arguing that the methamphetamine should have been excluded
because the search that
5
uncovered it was the tainted fruit of an unreasonable detention. Appellee
United States counters that the district court was correct in its denial of
the defendant’s motion to suppress because Officer Taylor, who had stopped
the defendant’s automobile for a routine traffic infraction, developed
reasonable suspicion to detain Beck in order to permit a dog sniff of his
automobile. Defendant Beck further asserts that the inventory search of his
automobile was invalid. The United States contends that this issue was not
properly preserved for appeal and that there was no plain error in the
district court’s admission of evidence found in Beck’s automobile during the
inventory search.
Thus, in this appeal, we must initially determine whether asking Beck
to step from his motor vehicle, after the completion of a valid stop for a
traffic violation, in order to await a drug dog sniff of his automobile,
constitutes a seizure within the purview of the Fourth Amendment. If such
actions do give rise to a seizure within the scope of the Fourth Amendment,
we are also called upon to determine the issue of whether the law
enforcement officers here possessed reasonable suspicion to detain Beck in
order to conduct the dog sniff of his automobile. We begin by addressing
the constitutionality of Beck’s detention.
B. Seizure Question
We review district court’s findings of historical fact for clear error
and determinations of reasonable suspicion and probable cause de novo.
Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996); United States v.
Juvenile T.K., 134 F.3d 899, 902 (8th Cir. 1998); see United States v.
Carrate, 122 F.3d 666, 668 (8th Cir. 1997); United States v. Payne, 119 F.3d
637, 642 (8th Cir.), cert. denied, 118 S. Ct. 454 (1997). Beck does not
contend that the initial stop of his automobile was in violation of the
Constitution, nor could he do so here. We have previously observed “‘[i]t
is well
6
established that a traffic violation--however minor--creates probable cause
to stop the driver of a vehicle.’” United States v. Barry, 98 F.3d 373, 376
(8th Cir. 1996) (quoting United States v. Barahona, 990 F.2d 412, 416 (8th
Cir. 1993)), cert. denied, 117 S. Ct. 1014 (1997); see Pennsylvania v.
Mimms, 434 U.S. 106 (1977); United States v. Hamby, 59 F.3d 99, 101 (8th
Cir. 1995); United States v. Johnson, 58 F.3d 356, 357 (8th Cir.), cert.
denied, 116 S. Ct. 348 (1995); United States v. Halls, 40 F.3d 275, 276 (8th
Cir. 1994), cert. denied, 514 U.S. 1076 (1995); Bloomfield, 40 F.3d at 915;
United States v. Garcia, 23 F.3d 1331, 1334 (8th Cir. 1994). In this case,
Officer Taylor’s observation of Beck following a motor vehicle too closely
provided probable cause for Officer Taylor to stop Beck’s automobile. Thus,
there is no dispute that the initial stop of Beck’s automobile was lawful
in this case. Rather, Beck’s first point of attack is his claim that the
length of the traffic stop was excessive, constituting an illegal detention,
prior to the initiation of the drug dog sniff.
This court has held that
“The scope of the intrusion permitted will vary to
some extent with the particular facts and
circumstances of each case. . . .an investigative
detention must be temporary and last no longer than
is necessary to effectuate the purpose of the stop.
Similarly, the investigative methods employed should
be the least intrusive means reasonably available to
verify or dispel the officer's suspicion in a short
period of time.”
United States v. Willis, 967 F.2d 1220, 1224 (8th Cir. 1992) (quoting
Florida v. Royer, 460 U.S. 491, 500 (1983)); Bloomfield, 40 F.3d at 916
(quoting Willis, 967 F.2d at 1224). As a result, in determining whether a
detention following a lawful stop of a vehicle is reasonable, we have held
that a court must consider both the length of the detention and law
enforcement officers’ efforts to conduct their investigation in a quick
7
and unintrusive manner. See Bloomfield, 40 F.3d at 916-17 (citing cases
involving length of detention questions); see also United States v. Sharpe,
470 U.S. 675, 686-88 (1985) (detention of twenty minutes following stop was
reasonable when the police acted diligently and defendant contributed to the
delay); United States v. Place, 462 U.S. 696, 709-10 (1983) (detention of
ninety minutes was unreasonable when agents did not act diligently to
minimize the delay).
During an investigative stop, officers may check for weapons and may
take any additional steps “reasonably necessary to protect their personal
safety and to maintain the status quo during the course of the stop.”
United States v. Hensley, 469 U.S. 221, 235 (1985); see also United States
v. Dawdy, 46 F.3d 1427, 1430 (8th Cir.) (holding that requests for
identification of all occupants, explanation of presence in area, and
warrant check was within reasonable scope of detention), cert. denied, 116
S. Ct. 195 (1995); United States v. White, 42 F.3d 457, 459 (8th Cir. 1994)
(holding that request for license, destination, and purpose of trip within
reasonable scope of detention); United States v. Ramos, 42 F.3d 1160, 1163
(8th Cir. 1994) (concluding that license and vehicle registration checks
were reasonable), cert. denied, 514 U.S. 1134 (1995). Here, although
Officer Taylor conducted both a check on Beck’s driver’s license as well as
a criminal history check for Beck, we conclude that there was no
unreasonable detention prior to Officer Taylor’s issuance of an oral warning
to Beck. After running his background checks, Officer Taylor promptly
returned Beck’s license and rental agreement, and informed Beck that he was
free to leave. We conclude from this that Officer Taylor employed the least
intrusive means of detention reasonably necessary to conclude his
investigation during the traffic stop. See United States v. Carrazco, 91
F.3d 65, 66 (8th Cir. 1996) (holding that the police may detain a motorist
for a reasonable time in order to check motorist’s driver’s license); United
States v. White,
8
81 F.3d 775, 778 (8th Cir.) (holding that during traffic stop police may run
computer check to ascertain whether vehicle was stolen and to ascertain
whether there are outstanding arrest warrants for vehicle’s occupants),
cert. denied, 117 S. Ct. 518 (1996). Nonetheless, unless Officer Taylor had
a reasonably articulable suspicion for believing that criminal activity was
afoot, continued detention of Beck became unreasonable after he had finished
processing Beck’s traffic violation. See United States v. Mesa, 62 F.3d
159, 162 (6th Cir. 1995) ("Once the purposes of the initial traffic stop
were completed, there is no doubt that the officer could not further detain
the vehicle or its occupants unless something that occurred during the
traffic stop generated the necessary reasonable suspicion to justify a
further detention."). Defendant Beck contends that Officer Taylor
violated his Fourth Amendment rights by continuing to detain him after
Officer Taylor had concluded his investigation for the observed traffic
violation. Appellee United States, in turn, characterizes the encounter
between Beck and Officer Taylor which followed Officer Taylor’s issuance of
a verbal warning to Beck as being consensual and therefore not implicating
the Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 434-35 (1991).
It is axiomatic that not all personal contacts between law enforcement
officers and citizens constitute seizures which implicate the Fourth
Amendment. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968); White, 81 F.3d at
779. There is no bright line between a consensual encounter and a Terry
stop, rather, the determination is a fact intensive one which turns upon the
unique facts of each case. United States v. Hathcock, 103 F.3d 715, 718
(8th Cir. 1997), cert. denied, 117 S. Ct. 2528 (1997); United States v.
McKines, 933 F.2d 1412, 1419 (8th Cir.) (en banc), cert. denied, 502 U.S.
985 (1991). As this court has indicated previously, “[a] seizure does not
occur simply because a law enforcement officer approaches an individual and
asks a few questions or requests permission to
9
search an area--even if the officer has no reason to suspect the individual
is involved in criminal activity--provided the officer does not indicate
that compliance with his request is required.” White, 81 F.3d at 779.
Instead, the transformation of a consensual encounter into a Terry stop
occurs only “when the questioning is so ‘intimidating, threatening or
coercive that a reasonable person would not have believed himself free to
leave.’" Hathcock, 103 F.3d at 718 (quoting McKines, 933 F.2d at 1419).
This court has instructed that circumstances indicative of a seizure include
“‘the threatening presence of several officers, the display of a weapon by
an officer, some physical touching of the person of the citizen, or the use
of language or tone of voice indicating that compliance with the officer's
request might be compelled.’ ” United States v. Angell, 11 F.3d 806, 809
(8th Cir. 1993) (quoting United States v. Mendenhall, 446 U.S. 544, 554
(1980)), cert. denied, 512 U.S. 1239 (1994); Hathcock, 103 F.3d at 718;
White, 81 F.3d at 779.
Under the facts of this case, upon Officer Taylor telling Beck that he
was free to go, we hold that the encounter between Officer Taylor and Beck
was initially consensual. Consensual encounters, of course, do not
implicate the Fourth Amendment. Michigan v. Chesternut, 486 U.S. 567,
574-76 (1988). At that juncture, Officer Taylor had already returned Beck’s
driver’s license and the rental agreement. Thus, we conclude that Beck was
no longer seized at the time Officer Taylor asked for permission to search
Beck’s automobile because Beck had everything in his possession which he
needed to continue his trip. See White, 81 F.3d at 779 (concluding that
motorist was no longer seized within the meaning of the Fourth Amendment
after police had returned motorist’s license, vehicle registration, and had
issued warning ticket).
The consensual nature of the encounter between Officer Taylor and Beck
continued until Beck asked what would happen if he refused to permit a
search of his
10
automobile. At that point Officer Taylor informed Beck that if he refused
to consent to a search, Officer Beck would have a canine unit conduct a drug
sniff of his automobile. Because a consensual encounter can become an
investigatory detention as a result of police conduct, see, e.g., United
States v. Place, 462 U.S. 696, 707 (1983) (holding that a seizure occurred
when defendant refused to consent to search of his luggage and agents said
they were going to take it to a judge to get a search warrant), we do not
believe a person in Beck’s situation, who had been present when a canine
unit had been summoned to the scene and was then told by Officer Taylor that
he was going to have a canine unit conduct a drug sniff of Beck’s car, would
reasonably have felt free to leave. See United States v. Finke, 85 F.3d
1275, 1281 (7th Cir. 1996) (holding that defendant would not have felt free
to leave scene of traffic stop when told by officer that a canine unit was
being called).
Furthermore, any doubts that Beck had that he was free to drive away
were extinguished when, after refusing consent to a search of his
automobile, Officer Taylor ordered Beck to get out of his automobile and to
stand on the side of the road. At that point, having been ordered out of
his vehicle in order to permit a drug dog sniff, a reasonable person in
Beck’s situation would not have felt free to leave.
C. Reasonable Suspicion
We appreciate that the district court was troubled by the issue of
whether Officer Taylor had reasonable suspicion to detain Beck after
informing him that he was free to go. While our disagreement with the
district court is outcome determinative here -- we note the district court
“barely” found reasonable suspicion to exist here.
Because the purposes of Officer Taylor’s initial traffic stop of Beck
had been completed by this point, Officer Taylor could not subsequently
detain Beck unless
11
events that transpired during the traffic stop gave rise to reasonable
suspicion to justify Officer Taylor’s renewed detention of Beck. See Mesa,
62 F.3d at 162. Thus, we must consider whether Officer Taylor had a
reasonable, articulable suspicion that Beck’s Buick was carrying contraband
or that other criminal activity may have been afoot. Terry, 392 U.S. at 30;
United States v. Johnson, 64 F.3d 1120, 1124 (8th Cir. 1995), cert. denied,
516 U.S. 1139 (1996); Ramos, 42 F.3d at 1163; White, 42 F.3d at 460.
“‘Whether the particular facts known to the officer amount to an objective
and particularized basis for a reasonable suspicion of criminal activity is
determined in light of the totality of the circumstances.’” United States
v. Halls, 40 F.3d 275, 276 (8th Cir. 1994) (quoting Garcia, 23 F.3d at
1334); see also United States v. Pereira-Munoz, 59 F.3d 788, 791 (8th Cir.
1995) (holding that reasonable suspicion is determined in the totality of
the circumstances); Bloomfield, 40 F.3d at 918 (holding that reasonable
suspicion is determined in light of the totality of the circumstances).
This court has summarized the standards used to consider whether
reasonable suspicion exists as follows:
The standard of articulable justification required by
the fourth amendment for an investigative, Terry-type
seizure is whether the police officers were aware of
"particularized, objective facts which, taken
together with rational inferences from those facts,
reasonably warrant[ed] suspicion that a crime [was]
being committed." United States v. Martin, 706 F.2d
263, 265 (8th Cir. 1983); see also Terry, 392 U.S. at
20-21, 88 S. Ct. at 1879-80. In assessing whether
the requisite degree of suspicion exists, we must
determine whether the facts collectively establish
reasonable suspicion, not whether each particular
fact establishes reasonable suspicion. "[T]he
totality of the circumstances--the whole
picture--must be taken into account." United States
v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66
L. Ed. 2d
12
 621 (1981). We may consider any added meaning certain conduct
might suggest to experienced officers trained in the arts of
observation and crime detection and acquainted with operating
modes of criminals. See United States v. Wallraff, 705 F.2d
980, 988 (8th Cir. 1983). It is not necessary that the behavior
on which reasonable suspicion is grounded be susceptible only to
an interpretation of guilt, id.; however, the officers must be
acting on facts directly relating to the suspect or the
suspect's conduct and not just on a "hunch" or on circumstances
which "describe a very broad category of predominantly innocent
travelers." Reid v. Georgia, 448 U.S. [438] at 440- 41, 100 S.
Ct. [2752] at 2754 [65 L. Ed. 2d 890]; United States v. Sokolow,
831 F.2d 1413 (9th Cir. 1987), [rev'd on other grounds, 490 U.S.
1, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989)].
United States v. Campbell, 843 F.2d 1089, 1093 (8th Cir. 1988); see also
United States v. Green, 52 F.3d 194, 198 (8th Cir. 1995); Dawdy, 46 F.3d at
1427; Bloomfield, 40 F.3d 910, 919 & n.10. In United States v. Sokolow, 490
U.S. 1 (1989), the Supreme Court observed that factors consistent with
innocent travel can, when taken together, give rise to reasonable suspicion.
Sokolow, 490 U.S. at 10; see United States v. Hoosman, 62 F.3d 1080, 1081
(8th Cir. 1995); Bloomfield, 40 F.3d at 918; United States v. Weaver, 966
F.2d 391, 394 (8th Cir.), cert. denied, 506 U.S. 1040 (1992).
Here, the government contends that reasonable suspicion for Beck’s
renewed detention arose from the following seven circumstances: (1) Beck
was driving a rental car which had been rented by an absent third party; (2)
the Buick was licensed in California; (3) there was fast food trash on the
passenger side floorboard; (4) no visible luggage in the passenger
compartment of the automobile; (5) Beck’s nervous demeanor; (6) Beck’s trip
from a drug source state to a drug demand state; and (7)
13
Officer Taylor’s disbelief of Beck’s explanation for the trip. While we are
mindful that "conduct which would be wholly innocent to the untrained
observer . . . might acquire significance when viewed by an agent who is
familiar with the practices of drug smugglers and the methods used to avoid
detection," United States v. Wallraff, 705 F.2d 980, 988 (8th Cir. 1983)
(internal quotation omitted), “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.’” United States v. Wood,
106 F.3d 942, 948 (10th Cir. 1997) (quoting Karnes v. Skrutski, 62 F.3d 485,
496 (3d Cir. 1995)). We hold that the totality of these circumstances fails
to generate reasonable suspicion to warrant Beck’s renewed detention.
We need not tarry long with the government’s first factor. We hold
that there was nothing inherently suspicious in Beck’s use of a rental
vehicle, even though rented by a third person, to travel. See Wood, 106
F.3d at 947 (finding that the defendant's use of a rental car was not
inherently suspicious). Beck told Officer Taylor that his wife had rented
the Buick for him. The rental agreement checked out. Indeed, Officer
Taylor testified at the suppression hearing that he had no reason to suspect
that Beck’s explanation was untrue. Tr. at 26.
We combine for analysis the government’s second and sixth reasons
since both focus on the fact that the Buick was coming from California, a
purported “source state” for drugs. Officer Taylor testified that he
thought it important that Beck was traveling from a drug source state and
traveling to a drug demand state. Tr. at 22. The criteria employed by
Officer Taylor to impart that title on a particular state was unexplained.
Indeed, Officer Taylor testified that he considered not only California to
be a drug source state, but also Arizona, Texas, New Mexico, Florida, and
Louisiana. Tr. at 22.
This court has previously held that out-of-state plates are consistent
with
14
innocent behavior and not probative of reasonable suspicion. See Ramos, 42
F.3d at 1163. While we do not suggest that geography is an entirely
irrelevant factor, see Sokolow, 490 U.S. at 3 (finding that the geography
was relevant where defendant was traveling to and from Miami since Miami was
"a source city for illicit drugs."), we do not think that the entire state
of California, the most populous state in the union, can properly be deemed
a source of illegal narcotics such that mere residency in that state
constitutes a factor supporting reasonable suspicion. See Karnes, 62 F.3d
at 495 (holding that mere fact that driver of automobile was from Florida
and automobile was registered in Florida would not constitute a factor
supporting reasonable suspicion). Because millions of law-abiding Americans
reside in California and travel, mere residency in and travel from the State
of California means the officer’s “source state” factor must be considered
2
in this context. Innumerable other Americans travel to that state or
through there for pleasure or lawful business. Clearly, the vast number of
individuals coming from that state must relegate this factor to a relatively
insignificant role. Indeed, Officer Taylor conceded at the suppression
hearing that interstate motorists have a better than equal chance of
traveling from a source state to a demand state. Tr. at 23. We conclude,
in the circumstances of this case, that no specific, articulable basis
warranting a reasonable belief that Beck’s Buick contained contraband can
be gleaned from the mere fact that Beck’s Buick was registered and licensed
in California. Here, this circumstance is an extremely weak factor, at
best, to suspect
2
According to the United States Bureau of the Census, as of July 1, 1997, with
a population of 32,268,000, almost one in every eight Americans is a resident of
California. When the populations of the other “source states” identified by Officer
Taylor are considered, the number rises to 76,998,000, or more than one-fourth the
United States’ population of 267,636,000. See United States Bureau of the Census,
http://www.census.gov/statab/ranks/pr01.txt.
15
3
criminal activity. See Karnes, 62 F.3d
3
A review of case law reveals that law enforcement officers have not only
purported to identify a number of supply states, but also a significant number of the
largest cities in the United States as "drug source cities." See Reid v. Georgia, 448
U.S. 438, 440 (1980) (agent identified Fort Lauderdale as drug source city); United
States v. Scarborough, 128 F.3d 1373, 1378 (10th Cir. 1997) (Colorado deemed to be
a “narcotics source state”); United States v. Dennis, 115 F.3d 524, 538 n.4 (7th Cir.
1997) (postal inspector identified as drug source states “the entire West Coast” as well
as Texas, Florida, Arizona, and parts of Washington); United States v. Jerez, 108 F.3d
684, 686 (7th Cir. 1997) (law enforcement officer identified Texas, Florida, Arizona
and California as drug source states); United States v. Polk, 97 F.3d 1096, 1097 (8th
Cir. 1996) (identifying Los Angeles as a source city); United States v. Underwood, 97
F.3d 1453, 1996 WL 536796, *3 (6th Cir. Sept. 11, 1996) (noting in unpublished table
decision that Long Beach was a drug source city), cert. denied, 117 S. Ct. 787 (1997);
United States v. Burgos, 94 F.3d 849, 868 (4th Cir. 1996) (acknowledging that New
York City is a source city for contraband drugs), cert. denied, 117 S. Ct. 1087 (1997);
United States v. Fletcher, 91 F.3d 48, 50 (8th Cir. 1996) (identifying Phoenix as drug
source city), cert. denied, 117 S. Ct. 1258 (1997); United States v. McNeil, 4 F.3d 987,
1993 WL 347524, *1 (4th Cir. Sept. 7, 1993) (recognizing New Jersey as drug source
state in an unpublished table decision), cert. denied, 510 U.S. 1135 (1994); United
States v. Odum, 72 F.3d 1279, 1282 (7th Cir. 1995) (identifying Houston as source
city); United States v. Johnson, 64 F.3d 1120, 1125 (8th Cir. 1995) (noting that
Chicago was a source city), cert. denied, 516 U.S. 1139 (1996); White, 42 F.3d at 460
(identifying El Paso and Albuquerque as drug source cities); United States v.
McMurray, 34 F.3d 1405, 1409 (8th Cir. 1994) (characterizing Oakland, California,
and Portland, Oregon as drug source cities), cert. denied, 513 U.S. 1179 (1995);
United States v. O’Neal, 17 F.3d 239, 241 n.3 (8th Cir. 1994) (pointing out that Miami
is deemed to be drug source city), cert. denied, 513 U.S. 960 (1994); United States v.
Respress, 9 F.3d 483, 487 (6th Cir. 1993) (recognizing Ontario, California, as drug
source city); United States v. Fifty-Three Thousand Eighty-Two Dollars In U.S.
Currency, $53,082.00, 985 F.2d 245, 247 (6th Cir. 1993) (characterizing Dallas as a
drug source city); United States v. Jennings, 985 F.2d 562, 1993 WL 5927, *1 (6th Cir.
Jan. 13, 1993) (denoting in unpublished table decision that Newark is a drug source
city); United States v. Ushery, 968 F.2d 575, 579 (6th Cir.) (identifying San Francisco
as a drug source city), cert. denied, 506 U.S. 946 (1992); United States v. Galvan, 953
F.2d 1098, 1102 (8th Cir. 1992) (labeling San Diego as a drug source city); United
States v. Flowers, 912 F.2d 707, 708 (4th Cir. 1990) (identifying Detroit as a drug
(continued...)
16
at 495 (holding that because Florida was not the only "known drug center,"
the fact that defendant was from Florida could not be a factor supporting
reasonable suspicion); United States v. Dennis, 115 F.3d 524, 538 n.4 (7th
Cir. 1997) (discounting the probative value of the fact that a package was
mailed from California); see also Reid, 448 U.S. at 440 (holding that
suspect's arrival at the Atlanta airport from a "drug source" city was
inadequate to support a finding of reasonable suspicion).
We also conclude that the mere presence of fast-food wrappers in the
Buick is entirely consistent with innocent travel such that, in the absence
of contradictory information, it cannot reasonably be said to give rise to
suspicion of criminal activity. See Wood, 106 F.3d at 947 (holding that the
suspicion associated with the possession of fast- food trash “is virtually
nonexistent”); Karnes, 62 F.3d at 496 (noting that fast-food wrappers "have
become ubiquitous in modern interstate travel and do not serve to separate
the suspicious from the innocent traveler."). The district court judge,
himself, admitted to having fast-food trash in his truck during trips.
Officer Taylor offered no basis for his supposition, that the existence of
fast-food trash constitutes an identifier of drug trafficking activity, from
which any reviewing authority can gauge the reasonableness of his
assumption. He merely recounted that he has seen fast-food trash on
“several occasions” during traffic stops of drug traffickers.
The government also points to the fact that Officer Taylor observed no
luggage in the passenger compartment of the Buick. Because it is eminently
reasonable to store luggage in the trunk of an automobile when traveling,
we think that this circumstance
3
(...continued)
source city), cert. denied, 501 U.S. 1253 (1991).
17
fails to generate any suspicion of criminal activity. Indeed, motorists are
specifically advised by law enforcement agencies, as a crime prevention tip,
4
not to leave their luggage in view.
Yet, another factor put forward by the government justifying Beck’s
renewed detention was Officer Taylor’s subjective assessment that Beck was
nervous during the traffic stop. It certainly cannot be deemed unusual for
a motorist to exhibit signs of nervousness when confronted by a law
enforcement officer. See Wood, 106 F.3d at 947 (“It is certainly not
uncommon for most citizens--whether innocent or guilty--to exhibit signs of
nervousness when confronted by a law enforcement officer.”). Officer Taylor
himself testified that in approximately twenty-five percent of the traffic
stops he conducts the detained motorist is at least as nervous as Beck was
here. Tr. at 29. Furthermore, Officer Taylor had never previously met Beck
and therefore had no measure by which to gauge Beck’s behavior during the
traffic stop with his usual demeanor. We conclude that any suspicion
associated with Beck’s nervous demeanor during the traffic stop to be, at
best, minimal. See United States v. Barron-Cabrera, 119 F.3d 1454, 1461
(10th Cir. 1997) (holding that “‘[w]hile a person's nervous behavior may be
relevant, we are wary of the objective suspicion supplied by generic claims
that a Defendant was nervous or exhibited nervous behavior after being
confronted by law enforcement officials. . . .’”) (quoting United States v.
Peters, 10
4
A casual search on the Internet reveals numerous police department web cites
which warn motorists to keep their valuables out of sight and locked in the trunk. See
CRIME PREVENTION TIPS, TIPS ON STAYING SAFE IN YOUR CAR, http://www.our-
town.com/spd/prevent1-29-97.htm; CRIME PREVENTION VACATION SECURITY, http://
www.aegisinc.com/aegisinc/cp/cp08-01.htm; BUSINESS TRAVEL, SAFETY TIPS,
http://www.city.palo-alto.caus/palo/city/police/vacation.htm; VACATION SAFETY TIPS,
http://www.absuci.edu/depts/police/safetytips/vacation.htm.
18
F.3d 1517, 1521 (10th Cir. 1993) (in turn quoting United States v. Hall, 978
F.2d 616, 621 n.4 (10th Cir. 1992)); Wood, 106 F.3d at 948 (that nervousness
is of limited significance in determining reasonable suspicion and that the
government's repetitive reliance on . . . nervousness . . . as a basis for
reasonable suspicion . . . must be treated with caution.’”) (quoting United
States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994).
Lastly, the government directs us to Officer Taylor’s subjective
disbelief of Beck’s reason for his travels. Officer Taylor did not believe
that a truck driver would travel across the United States to procure
employment given the number of employment opportunities for truck drivers
that lay in between California and North Carolina. Although unusual or
suspicious travel plans may give rise to reasonable suspicion, see Wood,
106 F.3d at 946-47 (noting that “unusual travel plans may provide an indicia
of reasonable suspicion.”); United States v. Kopp, 45 F.3d 1450, 1453 (10th
Cir.) (finding that suspicious travel plans, inconsistent answers, and
nervousness were sufficient to constitute reasonable suspicion), cert.
denied, 514 U.S. 1076 (1995), we see nothing suspicious about Beck’s
explanation for interstate travel in order to seek employment. Untold
numbers of Americans move for employment reasons every year, many moving
across the United States to take advantage of employment opportunities. We
are unwilling to suggest that a job search in a distant location is
inherently suspicious merely because similar employment opportunities exist
in closer proximity to one’s residence.
Finally, we conclude that the constitutionality of Beck’s renewed
detention and resulting search cannot be saved by the government’s
incantation that: “‘[A] series of acts that appear innocent, when viewed
separately, may warrant further investigation when viewed together.’”
Bloomfield, 40 F.3d at 918 (quoting Weaver, 966 F.2d at
19
394). Given the unique circumstances of this case, we conclude that the
seven factors, whether viewed individually or in combination, do not
generate reasonable suspicion for Beck’s renewed detention.
III. CONCLUSION
Accordingly, because Officer Taylor’s renewed detention of Beck and
the Buick was without reasonable suspicion, the evidence of drug trafficking
obtained during Beck’s renewed detention was tainted by the unlawfulness of
that detention and should have been suppressed. See Wong Sun v. United
States, 371 U.S. 471, 484-86 (1963); Ramos, 20 F.3d at 352; United States
v. Jefferson, 906 F.2d 346, 348 (8th Cir. 1990); see also United States v.
Everroad, 704 F.2d 403, 406 (8th Cir. 1983). Since Officer Taylor illegally
seized the Buick on the highway, there is no question that the drug evidence
subsequently found during the purported inventory search of the Buick
constitutes the fruit of an unlawful seizure and must also be suppressed.
We reverse the district court's denial of the motion to suppress, which, in
turn, requires that we reverse defendant Beck’s conviction and remand for
further proceedings, if so advised.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH
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