Tenth Circuit tackles reasonable suspicion on the highways
On April 6, 2005, the Tenth Circuit affirmed a district court denial of a motion to supress drugs recovered from the locked suitcase of a motorist. United States v. Santos, No. 03-8059. In Santos, the Tenth Circuit decided that a motorist's drug offenses and his denial of a criminal record when combined with vague and evasive answers to questions about travel plans, nervousness, and a rental car contract that would expire before the completion of his trip provided reasonable suspicion to detain the motorist for a drug dog arrival. The opinion placed heavy reliance on the defendant's "prior criminal history of several drug offenses".
The initial detention was for speeding. Thus, the initial detention was reasonable. The defendant did not challenge the government's assertion that the continued questioning of defendant, after the purpose of the initial stop was completed, was consenual. The question then presented was whether the detention of defendant was reasonable after he consented to a search of his car trunk, but refused to consent to a search of his locked suitcase. The Tenth Circuit (McConnell, J.) said yes.
Judge McConnell did take issue with some of the oral statments of the District Court and with a number of the District Court's findings related to reasonable suspicion. Criminal defense paractitioners will take solace in some of Judge McConnell's pithy remarks:
1) Refusal to consent to a search does not support reasonable suspicion, even when the refusal to consent is selective.
The defendant had consented to a search of his trunk but denied consent to a search of his locked suitcase. Judge McConnell rejected any inference that such a refusal would provide reasonable suspicion - "If refusal of consent were a basis for reasonable suspicion, nothing would be left of Fourth Amendment protections."
2) Nervousness of a motorist is not probative unless "unusually severe or persistent".
However, the Court of Appeals will accept the District Court's finding of the nature of the nervousness even when a videotape appears to contradict the officer's testimony.
3) The length of the rental car agreement is not very probative unless evidence is introduced that the motorist was unable to extend the contract without penalty.
The Court distinguished Santos from United States v. McRae, 81 F.3d 1528 (10th Cir. 1996), because of the lack of any evidence of a penalty to Santos for exceeding the rental agreement period.
4) Vague and evasive answers to questions are not given "much independent weight".
As Judge McConnell stated, "Vague answers may sometimes be a polite way to sidestep impertinent questions."
5) Travel between "drug source cities" and "drug destination cities" is a "weak" factor.
The defendant was travelling from San Francisco to New York. You can almost read the laughter from the pages of the opinion.
6) A locked suitcase "adds nothing to the calculus" of reasonable suspicion.
Judge McConnell rejects the "experience" of law enforcement officers on the meaning of a locked suitcase, "Deference to law enforcement officers becomes inappropriate . . . when an officer relies on a circumstance incorrigibly free of associations with criminal activity.
New Mexico's own, Judge Hartz, wrote a one sentence concurring opinion letting us know that he would give more weight to the rental car agreement and the vague answers to travel plans, but that he believes Judge McConnell did a fine job.