CA10: RS from excessive nervousness, air freshener, multiple cell phones, energy drinks and caffeinated beverages, unusual travel plans, and inconsistent statements about where he had been
“Like the district court, we ‘evaluate each of the factors supporting reasonable suspicion separately and in aggregate.’ … The following led Webb to believe Defendant might be engaged in criminal activity: (1) excessive nervousness; (2) the strong scent of air freshener; (3) the presence of multiple cell phones; (4) energy drinks and caffeinated beverages in the vehicle; (5) unusual travel plans; and (6) inconsistent statements about where he had been. We address each factor in turn.” Here, they all added up to reasonable suspicion on the totality. United States v. Komsonekeo, 2021 U.S. App. LEXIS 29675 (10th Cir. Oct. 1, 2021):
Generally, nervousness alone does not provide an officer with reasonable suspicion. Id. at 1380 (citation omitted). But nervousness beyond that normally anticipated during a citizen-police encounter can contribute to an officer’s reasonable suspicion. See id. To support a claim of extreme nervousness an officer must provide specific indicia that Defendant exhibited extreme nervousness. Id. Here, Webb described specific indicia of Defendant’s abnormal nervousness including Defendant’s cracking voice, tight grip on the steering wheel, and shaking hands as he gave Webb his license. Id. (describing defendant-appellant’s abnormal nervousness and how “his whole arm shook when he handed the trooper his driver’s license”). And the district court observed excessive nervousness on the video. Nervousness here does not stand alone in supporting objectively reasonable suspicion. It serves as only one of several relevant considerations. Because of Webb’s detailed description of Defendant’s abnormal nervousness, the district court properly considered this factor alongside the other relevant factors in concluding Webb had reasonable suspicion to extend the traffic stop.
An air freshener may support reasonable suspicion that the odor is being used to mask the smell of drugs. United States v. Salzano, 158 F.3d 1107, 1114 (10th Cir. 1998) (citations omitted). Webb testified that he knew people often use air fresheners to mask the odors of drugs. And he explained that Defendant’s air freshener was so strong it caused his eyes to water and his nose to burn. So the district court properly considered this factor in concluding Webb had reasonable suspicion to extend the traffic stop. See id.
The presence of multiple cell phones can lead to reasonable suspicion where the officer’s knowledge and experience give him reason to know that those engaged in criminal activity commonly use disposable and hard to trace phones. United States v. Jeter, 175 F. App’x 261, 265 (10th Cir. 2006) (unpublished) (citing United States v. Villa-Chaparro, 115 F.3d 797, 802 (10th Cir. 1997); United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir. 2005); United States v. Gandara-Salinas, 327 F.3d 1127, 1130 (10th Cir. 2003)) (noting the presence of multiple cell phones combined with air freshener and tattoos reflecting possible gang affiliation provided reasonable suspicion to justify extended questioning). Webb testified that he knew the possession of multiple cell phones, including cheaper, older models, is a common indicator of possible criminal activity.
Like the district court, we do not assign any weight to Webb’s assertion that the energy drink containers contributed to reasonable suspicion because an officer may find such caffeinated beverages in the vehicle of any innocent traveler. See United States v. Simpson, 609 F.3d 1140, 1152 (10th Cir. 2010) (giving no weight to the presence of energy pills).
Implausible travel plans also can contribute to reasonable suspicion. Pettit, 785 F.3d at 1381 (citations omitted). Again, Defendant’s travel plans may not have been so strange or implausible as to independently suggest criminal activity, but they warranted consideration with other factors, considering his story that he flew one way from California to Arkansas, just to drive roundtrip from Fayetteville to Chicago and then back to California from Arkansas. See id. at 1382 (citation omitted).
Finally, we have held many times that internally inconsistent statements can contribute to reasonable suspicion. United States v. Davis, 636 F.3d 1281, 1291 (10th Cir. 2011) (citations omitted). And here, Webb believed Defendant’s statements about who he met in Chicago were vague and inconsistent.
Although the above factors–abnormal nervousness, strong odor of air freshener, multiple cell phones, implausible travel plans, and internally inconsistent statements–may not independently provide reasonable suspicion of criminal activity, taken as a whole they establish reasonable suspicion supporting Defendant’s extended detention. See Pettit, 785 F.3d at 1383 (citation omitted) (holding that abnormal nervousness, unusual travel plans, and multiple suspended licenses, taken as a whole, establish reasonable suspicion supporting an extended detention).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)