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).