Cracked windshield stop did not lead to reasonable suspicion for detention for a dog sniff

Cracked windshield did not lead to reasonable suspicion that drugs were in defendant’s vehicle to justify his detention for a drug dog. The court makes it clear that it is not engaging in any form of “divide and conquer analysis” of reasonable suspicion rejected in Arvizu, but the factors asserted by the state just do not add up to reasonable suspicion, including refusing to consent to a search. Defendant’s alleged consent was tainted by the unlawful duration of stop. Also, when review under the Fourth Amendment affords defendant the relief he seeks, the state constitutional claim does not need to be reached. State v. Neal, 2007 NMSC 43, 142 N.M. 176, 164 P.3d 57 (2007):

[*22] It is undisputed that Officer LaSalle’s traffic stop of Defendant for a cracked windshield was valid. Thus, Officer LaSalle had the authority to investigate the cracked windshield and seek identification, registration, and insurance from Defendant, which he did. The core issue with which we are then confronted is whether Officer LaSalle had individual, particularized reasonable suspicion with respect to Defendant to detain the vehicle further to await a drug dog sniff. That is, did Officer LaSalle have reasonable suspicion that drugs would be found in the truck?

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[*28] As the Court of Appeals stated in Prince, “Officers may not use a lawful stop to fish for evidence of other crimes where there is insufficient reason to detain a defendant, beyond the purpose of the initial detention.” 2004 NMCA 127, P 19. Likewise, Officer LaSalle could not use his valid traffic stop of Defendant for a cracked windshield to detain the truck longer than necessary in order to fish for evidence of a drug transaction. We acknowledge that reasonable suspicion “‘can arise from wholly lawful conduct.'” Robbs, 2006 NMCA 61, P 26 (quoting Urioste, 2002 NMSC 23, P 10). In addition, we recognize that our reasonable suspicion determination requires us to assess the totality of the circumstances and “precludes … [a] divide-and-conquer analysis” in which we view each individual factor or circumstance in a vacuum. See Arvizu, 534 U.S. at 274. However, we are still compelled to address the factors upon which Officer LaSalle based his assessment of reasonable suspicion that drugs would be found in the truck: Defendant’s stopping in front of a house under investigation; talking to Horton, a convicted felon; becoming nervous when stopped by the police; wishing to leave; and denying consent to search the truck.

[*29] We have never adopted “‘a rule equating simple nervousness with reasonable suspicion.'” Vandenberg, 2003 NMSC 30, P 31 (quoted authority omitted). Indeed, “‘[i]t is common knowledge that most citizens … whether innocent or guilty, when confronted by a law enforcement officer who asks them potentially incriminating questions are likely to exhibit some signs of nervousness.'” Id. (quoting United States v. Millan-Diaz, 975 F.2d 720, 722 (10th Cir. 1992)). Thus, viewed in the context of Officer LaSalle’s other observations, Defendant’s fidgety and nervous demeanor and desire to leave did not suffice to create reasonable suspicion. See id. (noting that nervousness is to be expected when confronted with law enforcement and that it does not alone create reasonable suspicion); State v. Van Dang, 2005 NMSC 33, P 16, 138 N.M. 408, 120 P.3d 830 (holding reasonable suspicion existed to expand valid traffic stop where defendant, driving a rental van, was not named in the rental contract, had a story inconsistent with passenger regarding their travel plans and defendant’s alleged permissive use of the van, and defendant’s nervousness).

Computer check revealed no insurance, so the officer had reason to stop the defendant. While it was possible that there could have been insurance on the vehicle despite the computer record, that did not eliminate the basis for the stop. State v. Biggs, 2007 UT App 261, 167 P.3d 544, 583 Utah Adv. Rep. 11 (2007).*