The trick often played in federal court is wrapping up innocuous observations under the “totality of the circumstances” test of Illinois v. Gates. By breaking up otherwise banal conduct into as many tiny aspects, casting each in as nefarious a tone as possible, ordinary conduct can be made to appear sufficiently stinky to give rise to reasonable suspicion to justify further police intrusion, thus making the right to be left alone a matter of rhetorical skill.
The Oregon Court of Appeals refused to play that game in Oregon v Alvarado, where the defendant was stopped for speeding and a missing front license plate. After going through the usual traffic ticket stuff, Sergeant Turner of the Oregon State Police called in the drug sniffing dog. The dog alerted and, shockingly, no drugs were found. A gun with an obliterated serial number was, however.
After stopping defendant for those traffic violations, Turner became suspicious that defendant might have narcotics in his vehicle. Turner radioed for help from an officer with a drug detecting dog, which, upon arrival indicated narcotics were present in the van. The officers then searched the vehicle. They did not find any narcotics, but Turner, leaning into the van, noticed the butt of a pistol sticking out of the top of a bag behind the driver’s seat, within reach of the driver.
It never ceases to amaze that people traveling with illegal guns always leave them protruding from wherever they happen to be, whether under a seat, in their waistband or in a bag. While one would think they would be placed out of sight, that just never seems to be the police story. But I digress.
On appeal, Alvarado argues that upon completion of the traffic stop, Sgt. Turner had no justification to continue to detain him to await the arrival of the drug dog. The test for extending a stop is whether the officer has “specific and articulable facts that gave rise to the officer’s suspicion that the individual committed a crime,” which gives rise to authority to continue to “briefly detain” a person to further investigate. Otherwise, once the traffic citation is issued, the justification for detention ends and continued detention is unlawful.
The prosecution contended that Turner had articulable suspicion that Alvarado was involved in drug dealing based upon its top ten list:
(1) defendant slowed his vehicle after spotting Officer Turner;
(2) defendant was traveling interstate in a car owned by someone else;
(3) defendant explained to Turner that he was on his way to Pendleton to pay his cousin’s taxes;
(4) defendant’s vehicle contained numerous air fresheners, two bottles of cologne, and smelled strongly of both;
(5) defendant had “religious symbols” in his vehicle;
(6) defendant had an open energy drink;
(7) defendant was traveling with both a cell phone and a pager;
(8) during his conversation with Turner, defendant looked down at his cell phone;
(9) defendant moved the pager to his glove box;
(10) defendant became nervous when asked about the presence of drugs.
To fully appreciate the significance of these acts of intrigue, bear in mind that it’s necessary to speak them in an accusatory tone, raised eyebrows and a slight lilt toward the end of each line. Bear in mind, at the trial court level, the judge found this list sufficiently persuasive to justify the continued detention, denying suppression and forcing the case to trial. No doubt, with the prosecution able to articulate ten full reasons to suspect the defendant to be a drug dealer, the test had been met.
The appellate court, however, wasn’t nearly as impressed with the prosecution’s mad rhetorical skillz.
As an initial matter, we conclude that defendant’s looking at his cell phone, moving the pager to the glove box, and nervous response when asked about drugs could not figure in the reasonable suspicion calculus, even if they were suspicious–which they are not. Whether an officer has reasonable suspicion is determined as of the time that the stop becomes unlawfully extended; here, that occurred when the officer, having determined that defendant’s license was valid, his vehicle was not stolen, and he had no warrants, chose to pursue a criminal investigation instead of citing defendant. The circumstances mentioned above occurred after that point.
A rather critical, and too often forgotten detail, is that things that happen later can never rationally serve as a basis for a claim of earlier suspicion.
We also conclude preliminarily that defendant’s consumption of an energy drink or the fact that he slowed his vehicle after speeding add nothing to the reasonable suspicion calculus. Likewise, the reason defendant gave for his travel–going to Pendleton to pay his cousin’s taxes–may be unusual, but it does not suggest criminal activity; Pendleton is a county seat, and people pay taxes there. The state offers no explanation of the connection, if any, between these facts and the crime of drug trafficking.
Usually, the connection between “odd” activity and criminal activity is made merely by the raised eyebrow, if not the spooky voice used. This court wasn’t buying.
We also decline to consider the fact that defendant had religious symbols in his vehicle. The officer’s explanation–that people carrying drugs have religious symbols in order to falsely create the impression that they are good people– simply holds no water. Further, the fact that defendant was driving a van with out-of-state plates is of no significance, in that the plates were from Washington and defendant was driving on I-84 just across the Columbia River from that state.
And finally, addressing perhaps the most commonly used justification for extended investigation:
We also conclude that defendant’s anxious behaviors contribute very little to our reasonable suspicion calculus. We have held that “there is nothing inherently suspicious about * * * being nervous when pulled over by a police officer.”
Because everybody, judges included, are anxious when pulled over. Yes, truth.
The court then noted only three of the “articulable” reasons for suspicion held any water, that the defendant was driving another person’s car, had a cellphone and pager (the old “beeper” presumption), and had air fresheners and bottles of cologne. While the prosecution argued that these things are consistent with the conduct of drug dealing, the court noted they don’t “necessarily” suggest a crime. Maybe just a guy who smells bad.
The decision is rather bold, in that laundry lists of “reasons” like this are regularly considered “sufficient” to conduct further investigation, and rarely does a court parse the list as this one did to note the absurdity of the factors that supposedly support reasonable suspicion. An open energy drink?
But the norm is that if a prosecution can take common observations, craft them into ten minute details in such a way as to make them smell just a bit, make them appear “odd,” as in not the way regular people do it, and reach the number ten, it’s pretty much a lock that a court will be overwhelmed by the reasonableness of the suspicion and deny suppression. The Court of Appeals here reversed.
H/T Spencer Neal, of the Left Coast Neals