The officer’s “knowledge, training and experience” isn’t a panacea that automatically adds up to turning innocent conduct into reasonable suspicion. More is needed from the state. State v. Ramirez-Tamayo, 07-15-00419-CR (Tex. App. – Amarillo Oct. 5, 2016):
A logical reasoning sequence based upon some “training and experience” — because drug traffickers have been seen breathing, then breathing is an indicia of drug trafficking. Because they normally have two hands, then having two hands is an indicia of drug smuggling. Silly — maybe, but one can wonder if that is the direction we are heading. Whether it be driving a clean vehicle, Contreras v. State, 309 S.W.3d 168, 171 (Tex. App.—Amarillo 2010, pet. ref’d), or looking at a peace officer, Gonzalez-Contreras v. State, 309 S.W.3d at 171; or looking away from a peace officer, Gonzalez-Galindo v. State, 306 S.W.3d at 896; or a young person driving a newer vehicle, Gonzalez-Galindo v. State, supra; or someone driving in a car with meal wrappers, Deschenes v. State, 253 S.W.3d 374, 383 (Tex. App.—Amarillo 2008, pet. ref’d); or someone driving carefully, Contreras v. State, supra; or driving on an interstate, see Clatt v. State, No. 07-07-0130-CR, 2008 Tex. App. LEXIS 7250, at *2 (Tex. App.—Amarillo September 29, 2008, no pet) (mem. op., not designated for publication) (wherein the official testified that I-35 was a “drug corridor”), most anything can be considered as indicia of drug trafficking to law enforcement personnel. Maybe this is because drug smugglers just happen to be human beings and being such, they tend to engage in the same innocuous acts in which law abiding citizens engage. See Gonzalez-Galindo v. State, 306 S.W.3d at 896 (observing that “[c]riminals come in all makes and colors. Some have hair, some do not. Some are men, some are not. Some drive cars, some do not. Some wear suits, some do not. Some have baseball caps, some do not. Some want attention, some do not. Some have nice cars, some do not. Some eat spaghetti, some do not. And, sometimes, some even engage in innocent activity.”). The problem comes with distinguishing between innocent conduct indicative of nothing but everyday activity and innocent conduct indicative of crime. That is the hurdle we once again face here, and it is made difficult to clear due to the unasked questions by the State about the “knowledge, experience, and training” of its sole witness.
The witness we speak of is the deputy who stopped appellant for driving 78 mph on Interstate 40 when the posted limit was 75. He approached the passenger side of the stopped vehicle. Instead of lowering the car window, though, appellant opened the passenger door. That was suspicious to the officer because in his “training and experience” drug smugglers have lined car doors with drugs which act impedes a window’s operation. Once the door was open, the deputy smelled cigarette smoke and a strong scent of cologne; so too did he see the car’s ashtray full of cigarette butts. Those circumstances added to his suspicion because from his “training and experience” he knew that drug smugglers have used odors to mask the scent of drugs. Soon he discovered that the vehicle happened to be a rental with “no smoking” decals affixed to it, and appellant apparently was returning from some unknown casino to Miami, Florida. The deputy recalled from his “training and experience” that drug smugglers rent vehicles to transport their contraband. So, the presence of a rented vehicle heightened his suspicion that his detainee may be engaging in criminal activity. Also noted by the deputy was appellant’s “severe” nervousness and failure to calm down after being told that he would only be receiving a warning ticket.
So, as appellant sat in the deputy’s patrol unit, he was asked if he would consent to a search of the rented car. Because the language barrier between appellant and the deputy hampered the latter’s ability to comprehend if appellant acquiesced, the deputy decided to have a drug dog sniff the car. The dog just happened to be at the scenewhen the decision was made. The animal indicated the presence of drugs, and the ensuing search uncovered multiple pounds of marijuana within the car’s doors.
Appellant believed the search was unconstitutional and moved to suppress its fruits. A hearing was held, and, thereafter, the trial court denied the motion. Appellant then pled guilty to possessing between 5 and 50 pounds of a controlled substance. The sole issue before us involves the decision to deny the motion to suppress. Appellant believes the trial court erred in doing so because the deputy had no reasonable suspicion to prolong the detention after deciding simply to issue a warning ticket. We agree.
. . .
Instead, the State simply proffered evidence of job titles and employment categories. We were then left to either guess at their scope and substance, if any, or implicitly invited to assume that those titles and categories imbued the deputy with some form of special training, knowledge and expertise. But, neither we nor the trial court are free to fill the void through speculation. Labels themselves mean little, and care must be taken to avoid assigning some level of substance to them merely because they may sound important. And, aside from the deputy simply invoking his “knowledge, training and expertise,” the State did little to illustrate of what it consisted or how it was garnered.
