D.Mont.: Criminal history and gang affiliation alone isn’t RS

Defendants were riding in the back of a pickup truck after getting a ride from an acquaintance. The officer stopped the truck and extended the stop about 90 minutes without any reasonable suspicion at all. Their criminal histories and alleged gang membership wasn’t enough because there was nothing suggesting crime was a foot. United States v. Garcia, 2019 U.S. Dist. LEXIS 207227 (D. Mont. Dec. 2, 2019):

The question here, then, is whether Trooper Brant had reasonable suspicion to detain Garcia and LeBeau past the point of issuing a warning to the driver and determining that neither was subject to a warrant. Considering the universe of information available to Brant (and even inventing justifications for the detention beyond those articulated by Brant), the Court considers whether the totality of the circumstances gives rise to reasonable suspicion of criminal activity justifying an hour-and-a-half-long traffic stop. Supporting the detention are: Garcia and LeBeau’s presence in the bed of the pickup, their criminal histories, Garcia’s status as a “known criminal gang member,” the men’s use of cigarettes, Trooper Brant’s belief that the men told conflicting histories about how they got to Montana, the drivers’ report that Garcia and LeBeau had spent the night at the Town Pump, the existence of the backpacks, and the fact that the men were traveling without a vehicle.

Taken together, these bits of information cannot authorize the continued detention of Garcia and LeBeau and the dog sniff performed on the backpacks. Aside from the arguably contradictory answers the men gave to Trooper Brant’s questions, Brant had little more than “prefabricated or recycled profile[s] of suspicious behavior very likely to sweep many ordinary citizens into a generality of suspicious appearance merely on hunch.” United States v. Rodriguez, 976 F.2d 592, 596 (9th Cir. 1992). Perhaps, under the totality of the circumstances, a reasonable officer would be alert to the possibility that Garcia and LeBeau were—as they ultimately proved to be—up to no good. However, even where a brief investigation is authorized, “[i]f the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way.” Illinois v. Wardlow, 528 U.S. 119, 126, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). Despite Brant’s unrelenting attempts to elicit incriminating testimony from Garcia and LeBeau, their “answers [did not] provide the officer with probable cause to arrest [them].” Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).

Trooper Brant extended the traffic stop long past the point of a brief investigation into the possibility of criminal wrongdoing. …