W.D.Tex.: Stop could not be continued to get consent on a mere hunch; motion to suppress granted

Officer’s mere hunch of wrongdoing was not reasonable suspicion. The claim of reasonable suspicion fails, and the motion to suppress is granted. United States v. Preciado, 2011 U.S. Dist. LEXIS 146366 (W.D. Tex. December 20, 2011):

The Fifth Circuit case law continues to develop in this area. Recently, the Court reversed a trial court’s denial of a motion to suppress a firearm uncovered during a warrantless automobile search. See U.S. v. Macias, 658 F.3d 509 (5th Cir. 2011). In Macias, that defendant argued that before the officer ran the computer checks, the officer engaged in detailed questioning about matters unrelated to the defendant’s driver’s license, his proof of insurance, the vehicle registration, or the purpose and itinerary of his trip that unreasonably prolonged the detention without developing reasonable suspicion of additional criminal activity. Id. at 518. The Macias Court determined that the unrelated questions impermissibly extended the duration of the stop. The Government argued that Trooper Barragan was permitted to ask these questions because, as soon as he stopped Macias, he had reasonable suspicion that Macias was involved in criminal activity. Distinguishing Brigham, the Macias Court stated that the Brigham officer’s “increasing suspicion was also fueled by Brigham’s extreme nervousness, his avoidance of eye contact, and his pattern of answering the officer’s questions with questions of his own.” Brigham, 382 F.3d at 508. Accordingly, the Macias Court found that the Brigham officer’s questioning represented “a graduated response to emerging facts” whereas Trooper Barragan “could only point to Macias’s extreme nervousness, which is not sufficient to support the extended detention.” Macias, 658 F. 3d. at 520. The Macias Court also stated that “potentially undercutting Trooper Barragan’s reasonable suspicion is the Government’s failure to present any evidence that sets out Trooper Barragan’s experience.” Id.

In this case, the Government established that Trooper Cipriani had four years of law enforcement experience, had conducted numerous vehicle stops and had attended “interdiction” schools, where he has received training in body language and vehicle indicators to detect contraband. The above notwithstanding, looking at the totality of the circumstances, Trooper Cipriani did not have a “particularized and objective basis for suspecting legal wrongdoing.” U.S. v. Vasquez, 253 Fed. Appx. 365, 370 (5th Cir. 2007). Reasonable suspicion may not be based on “inarticulate hunches of wrongdoing.” U.S. v. Thibodeaux, 276 Fed. Appx. 372, 377 (5th Cir. 2008). The Trooper had “mere uneasy feelings” about the believability of what he was being told. However, that does not constitute articulable facts that support a reasonable suspicion. U.S. v. Cavitt, 550 F. 3d 430, 437 (5th Cir. 2008).