CA6: Court can’t dictate how officers conduct their reasonable suspicion inquiry, but there are some limits

The stop was for speeding, 72/55. Nervousness alone is not enough for reasonable suspicion. An “oddity” in the rental contract, a third party renter not present, was enough to extend the stop. The dog sniff here occurred during the process of issuing the ticket. “Whether a seizure is reasonable is a question of law, which we review de novo.” “This is a close case,” but the court comes down on the side of reasonable suspicion on the totality. The court can’t dictate how the officers should conduct the inquiries, just whether they were wrong to do as they did. United States v. Winters, 2015 U.S. App. LEXIS 5143, 2015 FED App. 0057P (6th Cir. March 31, 2015):

This is a close case, as the indicators cited by the government do not strongly suggest illicit activity. Indeed, under somewhat similar circumstances in Johnson, we determined that the very same Officer Duggan did not have reasonable suspicion based on the defendant-motorist’s nervousness, criminal history, and lack of luggage; the presence of industrial-strength degreaser; and the fact that the rental car was not authorized for operation in the state in which the defendant was driving. 482 F. App’x at 145. But see Hill, 195 F.3d at 272 (implausible explanation for trip, inconsistent explanation of itinerary, presence of used Kleenex, and nervousness furnished reasonable suspicion of drug activity). While certain factors in Johnson were clearly of little weight, such as the lack of luggage, others, like the defendant’s prior history of crime, could be stronger than some of the factors cited here. But cf. Johnson, 482 F. App’x at 148 (“[T]he fact that [the defendant] had committed crimes in the past, while it has a place in the reasonable-suspicion analysis, is not, without more, strong evidence of criminal activity in the present.”). On the other hand, the oddity with the rental car in Johnson—i.e., that the defendant was authorized to operate the vehicle only in Georgia and Florida, but was pulled over in Tennessee on the way to Kentucky, id. at 139—is seemingly less significant than the suspicious rental agreement here, where neither occupant was authorized to operate the vehicle at all. Ultimately, as Johnson itself stresses, because “the concept of reasonable suspicion is somewhat abstract,” United States v. Arvizu, 534 U.S. 266, 274 (2002), “one determination will seldom be a useful precedent for another” and “our reasonable-suspicion cases do not offer a coherent principle that resolves the question we face.” Johnson, 482 F. App’x at 147 (internal quotation marks and citation omitted). However, in close cases such as this, we have consistently stressed that we must “review the evidence ‘in the light most likely to support the district court’s decision.'” United States v. Braggs, 23 F.3d 1047, 1049 (6th Cir. 1994) (quoting United States v. Gomez, 846 F.2d 557, 560 (9th Cir. 1988)); see also United States v. Stubblefield, 682 F.3d 502, 505 (6th Cir. 2012); United States v. Smith, 549 F.3d 355, 359 (6th Cir. 2008).

The Supreme Court has warned against engaging in a “divide-and-conquer analysis” that examines the factors supporting reasonable suspicion “in isolation from each other.” Arvizu, 534 U.S. at 274. Thus, under the proper totality-of-the-circumstances approach, “we must determine whether the individual factors, taken as a whole, give rise to reasonable suspicion, even if each individual factor is entirely consistent with innocent behavior when examined separately.” Smith, 263 F.3d at 588 ….

More fundamentally, Winters’s argument relies on the premise that the reasonable suspicion furnished by the inconsistent travel plans and rental agreement only justified further investigation specifically tailored to those exact issues. For this reason, Winters’s counsel felt comfortable in all but accepting at oral argument that Officer Duggan had reasonable suspicion with regard to the travel arrangements and arguing that deploying the drug dog was simply not justified by that suspicion. This is an improperly narrow understanding of the reasonable-suspicion analysis in this case. Our holding that Officer Duggan had reasonable suspicion under the circumstances reflects the conclusion that a reasonable officer in his situation was presented with sufficient facts to give rise to suspicion of illicit activity such as trafficking contraband, which justified a reasonable investigation to uncover that activity. This is to be judged by an objective standard that does not depend on the subjective beliefs of the officer on the scene. Indeed, “[i]f the facts known to the officer support reasonable suspicion” of illicit activity, “it does not matter that the officer was motivated by a belief that a different offense (even one for which there was not reasonable suspicion) had been committed.” Johnson, 482 F. App’x at 143 (quoting United States v. Haskins, 430 F. App’x 727, 728—29 (10th Cir. 2011)).

We do not mean to suggest that a finding of reasonable suspicion justifies inquiry into every possible crime or use of every investigatory method. An officer who pulls over and questions an erratic driver whom he reasonably believes to be intoxicated, for example, cannot, on that basis alone, investigate the driver for securities fraud. Rather, as Terry makes clear, the officer’s investigation must be “reasonably related in scope” to the factual basis underlying the finding of reasonable suspicion, 392 U.S. at 20, which it was in this case. We hold that there was reasonable suspicion to justify the extended detention of Winters and that the dog-sniff inspection was a reasonable means to dispel that suspicion.