The 10th Circuit Court of Appeals recently upheld three reasonable suspicion factors consistently used in criminal interdiction investigations, while at the same time tossing overboard five lesser ones.
In the seminal 2015 traffic stop case of Rodriguez v. United States, the Big Court said that a seizure for a traffic violation justifies a police investigation of that violation. An officer’s authority to seize a vehicle’s occupants ends, however, when tasks tied to the traffic infraction are--or reasonably should have been—completed. Even so, it is permissible for an officer to conduct certain unrelated inquiries during the stop but the unrelated inquiries may not prolong the traffic stop unless the officer has reasonable suspicion of additional criminal activity. Even de minimus (trifling or of little importance) delays caused by inquiries unrelated to the original reason for the stop violate the Fourth Amendment in the absence of reasonable suspicion. In fact, the point in time that a stop is prolonged such that reasonable suspicion of another crime is required is now known as the “Rodriguez Moment.”
In this case, two Wyoming sheriff deputies stopped for a traffic offense a rental car driven by Ian Batara-Molina (Molina). One of the deputies was a dog handler, and during the event the dog was deployed. The dog alerted to the odor of controlled substances coming from Molina’s car and on a warrantless probable cause search 14 pounds of methamphetamine were found in the trunk. Molina was charged in federal court and he asked that the drugs be suppressed because the car stop was prolonged without reasonable suspicion. After a hearing, the district court held that 1) the dog sniff occurred during the original traffic enforcement action, and 2) even if the car stop had been prolonged, the officers had reasonable suspicion of additional criminal activity giving them extra time for the dog sniff. Molina was convicted and appealed.
Interestingly, on appeal the assigned judge panel did not take up whether or not the dog sniff occurred during the original traffic stop. Instead, the panel simply assumed that the car stop had been prolonged for a drug investigation and dog sniff requiring reasonable suspicion. Assumptions like that are not necessarily unusual on appeals as it tends to signal that the government is about to win on the true question in the case.
The officers had testified to eight facts from the event that they believed added up to reasonable suspicion and thus authorized the officers to prolong the stop: 1) an unknown but “overwhelming” odor coming from the vehicle’s interior; 2) Molina’s mispronunciation of “Sioux Falls,” as his destination; 3) the car had been rented by a third-party who was not present in the car; 4) the rental agreement was expiring; 5) Molina had spent the previous night at a gas station instead of a hotel; 6) there was a vape pen in the car; 7) the car’s back seat contained no luggage; and 8) Molina was traveling from California, a drug source state. The district court had accepted all of those factors.
The appeals panel reviewed those eight factors and immediately tossed as not at all suspicious the following five: Molina’s mispronunciation of the name of Sioux Falls since it was a city in which he did not live; Molina staying the night at a gas station since many travelers of modest means sleep in their cars; a vape pen in the car because it is too common of an item and could be found in the vehicle of “any innocent traveler” (noting that there may be other circumstances where there could be evidentiary value to a vape pen); seeing no luggage in the back seat of a car with a trunk when most travelers place their luggage in the trunk (it might be different if a car did not have a trunk); and, that Molina was from a drug source state [California] because the majority of the states have now legalized marijuana it is no longer reasonable to believe that there are particular drug source states.
That left before the panel only the facts of an overwhelming “cover” odor, a third-party rental, and the details surrounding an expiring rental agreement.
Odor: it is well-established that a strong odor may be used in establishing reasonable suspicion because drug traffickers use masking to hide the odor of drugs. Further, officers need not identify the particular odor as it is enough that the odor was overwhelming.
Rental Car/Third-Party: even though the use of a rental car alone does not contribute to reasonable suspicion, the fact that a rental was made by a third-party is consistent with the behavior of drug traffickers.
Expiring Agreement: to make a long trip only to stay at the destination for a short amount of time is also consistent with the behavior of a drug courier. But, because rental agreements can be extended from the highway, the national case law is mixed. This panel gave weight to the fact that the deputies here had questioned Molina about the imminent expiration and that Molina’s response was found wanting. Molina said that he planned to extend the agreement for one day, but the deputies reasonably believed that a one-day extension was still suspicious because of the enormous travel time involved.
The appellate panel held that the overwhelming cover odor, the third-party rental, the unusual details of the rental terms versus the travel time, and because a court is to give deference to an officer’s ability to distinguish between innocent and suspicious actions “just barely supported” reasonable suspicion. The prolonged car stop and the resulting dog sniff did not violate the Fourth Amendment.
