Law enforcement officers rarely care about enforcing traffic laws. Moving violations may produce a little extra revenue for the city or state, but it doesn’t do much for the officers performing the stops.
Pretextual stops? The leveraging of any perceived moving violation in hopes of performing a vehicle search? That’s where the money is, thanks to lax civil asset forfeiture laws and cop-friendly judges. And that’s where the action is. Any stop contains the possibility of a big bust or, at the very least, an opportunity to walk off with someone else’s cash or vehicle.
The courts don’t mind pretextual stops, so long as officers maintain the pretext for as long as possible. But if the pretext doesn’t hold, the officers must end the stop. That’s the law of the land, thanks to the Supreme Court’s Rodriguez decision. If the officer doesn’t have probable cause to extend a traffic stop, the stop ends when the stated objective (citation, warning, etc.) has been achieved.
Reasonable suspicion is an extremely low bar. And, for years, cops have been building case law with dubious testimony that suggests almost anything a driver does (or has in their car) is reasonably suspicious. This list of “reasonably suspicious” things now encompasses 99.99% of all drivers have or do, from having discarded food containers in their car to “acting nervous” to “acting not nervous enough” to having a car that’s too clean.
In other words, it’s all suspicious when a cop is involved. Fortunately, courts are sometimes willing to push back against this ever-expanding list of “suspicious” behavior.
This recent Tenth Circuit Court of Appeals decision [PDF] is one of those pushing back. An obviously pretextual stop ended with the discovery of contraband. But, as the decision points out repeatedly, the ends don’t justify the means.
Here’s how this all started:
Mr. Luis Alfonso Leon was stopped by law enforcement after he was observed illegally driving in a passing lane. During the traffic stop, the officer began to suspect Mr. Leon was trafficking drugs. A search of his vehicle uncovered seventy-six pounds of methamphetamine, and Mr. Leon was charged with one count of possessing methamphetamine with intent to distribute.
The illegal action triggering this stop? Driving in the left lane without passing anyone. Not really the sort of thing cops are really interested in. However, it was just enough to justify the stop of Leon by Colorado State Trooper Shane Gosnell, who was likely far more interested in the out-of-state plates than the fact Leon was treating the fast lane like the slow lane.
(And, of course, the cop apologists will light up the comment thread with comments suggesting the discovery of drugs justified everything that happened prior to that discovery. To those commenters, I suggest you pore over the Constitution again and find the part where it says the ends justify the means. People challenging evidence used against them are the ones fighting for constitutional rights. People hassled for no reason and, after having their car tossed, decide it’s a sacrifice they must make to fight the Drug War rarely file lawsuits. Bootlicking robs all of us of our rights. And that includes the rights of those who think the government should have more rights than citizens.)
Following the stop for the alleged moving violation, Trooper Gosnell approached the vehicle (completely normal behavior) and saw stuff with his eyes (completely normal behavior).
As he approached the truck, Trooper Gosnell made several observations. First, he noticed disorganized boxes and clothing in the backseat. Second, he observed food wrappers, a soda bottle, an energy drink can, and religious pamphlets in the front. Based on these conditions, he believed the vehicle had “a lived-in or hard-traveled look.” Supp. Rec., vol. IV at 14. Finally, he saw a single key in the ignition.
The trooper “observed” things he might have observed in any vehicle at any time. However, he decided the things he “observed” were indicative of criminal activity (abnormal behavior! except not for cops!).
The trooper asked for the normal stuff (license, registration). He received it. The registration was expired but Leon explained he had just purchased the truck from a friend in Minnesota. He also explained he had lived in Arizona for most of his life but was now looking to live in Minnesota. He also offered that he was planning to stop in Denver to see if there was a religious convention occurring that he could attend and possibly might stay the night there.
All of this would have added up if Trooper Gosnell hadn’t been so sure it didn’t.
During this interaction, Trooper Gosnell believed Mr. Leon was “overly cooperative” and “super nervous.” Supp. Rec., vol. IV at 23. He found Mr. Leon’s answers to his questions to be indirect and felt Mr. Leon was attempting to control the conversation.
A combination of these circumstances led Trooper Gosnell to suspect Mr. Leon was involved in drug trafficking and to ask for the mileage on the truck. After running some checks and returning Mr. Leon’s documents, Trooper Gosnell asked for Mr. Leon’s consent to search the vehicle. Mr. Leon refused consent, but Trooper Gosnell decided to conduct a dog sniff of the vehicle’s exterior. The K-9 alerted to the odor of narcotics, and Trooper Gosnell and another officer searched the vehicle. The officers found seventy-six pounds of methamphetamine and placed Mr. Leon under arrest.
Bullshit, says the Tenth Circuit. Trooper Gosnell did not have what he needed to extend the stop (which occurred when Gosnell asked for the truck’s mileage). Nor did he have the suspicion needed to hold Leon until a drug dog could perform a sniff of the vehicle.
The trial court said Trooper Gosnell’s actions were supported by reasonable suspicion, reciting (almost word-for-word) Gosnell’s assertions about his reasonable suspicion.
The potential origin of the trip from Arizona, which is known to be a drug hub; traveling from that destination to Minnesota; vague travel plans; unsure how long he was going to be in Denver; vague reasons for even being in Denver; attempting to control the conversation; inconsistent statements regarding where he was currently living; the Arizona driver’s license; the Minnesota registered vehicle; the condition of the interior of the vehicle; and Mr. Leon’s nervousness . . . .
This is all wrong, says the Appeals Court, starting with the stupidity that is “drug hubs,” an assertion that pretty much declares all of America to be either a drug source or a drug destination.
First, the characterization of Arizona and Minnesota as drug hubs or destinations adds nothing to the reasonable suspicion calculus. […] Moreover, it is not clear that Trooper Gosnell knew or believed Mr. Leon was traveling to Minnesota. In fact, the government argues Mr. Leon did not disclose his final destination and that his failure to do so was suspicious.
Nor were the travel plans Leon discussed with the trooper in any way “suspicious.”
Mr. Leon’s plans were at most unusual, not logistically unrealistic. Although we have found travel plans suspicious when “it begged credulity to think that the purported purpose of the trip could justify the travel plans,” United States v. Lopez, 849 F.3d 921, 927 (10th Cir. 2017), there is nothing in the record to suggest Mr. Leon was on a restricted timeline and Trooper Gosnell did not inquire into Mr. Leon’s plans after stopping at ISKCON [the religious convention]. Nor do we find it suspicious that Mr. Leon planned to play his trip in Denver by ear. Assuming Mr. Leon was traveling all the way to Minnesota from Arizona, stopping in Denver where there was a personal point of interest would not be all that unusual.
And there was no inconsistency in Leon’s statements about his travel plans and residency, despite the lower court (mistakenly) assuming otherwise.
The district court relied on Mr. Leon’s inconsistent statements about where he lived. But Mr. Leon did not actually make an inconsistent statement. Early in the traffic stop, Trooper Gosnell asked him if he was from Arizona. Mr. Leon answered affirmatively but clarified that he was transitioning to Minnesota. In response, Trooper Gosnell noted the Minnesota plates. After Mr. Leon confirmed he was traveling from Phoenix that day, Trooper Gosnell asked him how long he had been living “out there.” Dashboard Camera Footage at 4:50–4:51. Mr. Leon explained that he received permanent residency in 2014 but lived in Arizona as a child. When Trooper Gosnell then inquired into Mr. Leon’s connection to Minnesota and how he came into possession of the truck, Mr. Leon explained his transition, noting that he originally went to Minnesota because of a woman and was now living with his friend Marco who helped him get the truck. At the time of the Rodriguez moment, Mr. Leon had not made any inconsistent statement about where he was living.To the extent the district court found otherwise, it was clearly erroneous.
As for the other additives to Trooper Gosnell’s “reasonable suspicion” equation, the Appeals Court is even less impressed by these factors.
Moreover, we afford no weight to the condition of the vehicle’s interior, which
had food wrappers, soda and energy drink containers, miscellaneous boxes, and clothes.
First, food wrappers and drink containers are items you would find in any vehicle on a road trip. […] The lived-in or hard-travelled appearance Trooper Gosnell noted may be consistent with drug trafficking trips but it is also characteristic of most road trips. The fact that Mr. Leon had purchased the car just a few weeks prior does not change our analysis; a car being used for a road trip is likely to accumulate some degree of mess regardless of how long it has been owned.
Second, although Trooper Gosnell explained that some traffickers use a “cover load” to make a trip seem legitimate, he failed to explain why he believed the contents of Mr. Leon’s vehicle were part of a cover load rather than indicative of legitimate travel or even how such a distinction could be made. We are not persuaded that the presence of boxes or clothing, whether neatly arranged or disorganized, raises an inference of reasonable suspicion.
“Nervous” driver? This means nothing, says the Tenth Circuit.
[W]e have consistently held that ordinary nervousness bears little weight in the reasonable suspicion calculus. This is because most motorists experience some degree of nervousness when stopped by police and “unless the police officer has had significant knowledge of a person, it is difficult, even for a skilled police officer, to evaluate whether a person is acting normally for them or nervously.”
The same goes for the officer’s assertions that Leon might have been driving the truck as a mule, unaware of its contents, but somehow still responsible for the contraband inside the vehicle. But that assertion goes against all the evidence the trooper already possessed when he suddenly decided he had the reasonable suspicion needed to extend the stop and search the truck.
To the extent Trooper Gosnell found these factors suspicious because they suggested Mr. Leon was traveling in a third-party vehicle, we afford them no weight. Prior to the Rodriguez moment, Mr. Leon told Trooper Gosnell the truck belonged to him, which Trooper Gosnell confirmed by looking at the title transfer. At that point, it would have been clear to a reasonable officer that Mr. Leon was not traveling in a third-party vehicle and could not distance himself from the vehicle as a defense.
Having perhaps recognized all this “reasonable suspicion” might not be all that “reasonable,” the government also added this to its arguments.
On appeal, the government urges us to consider an additional factor: Mr. Leon purchased the vehicle for a suspiciously low price of $500, which was listed on the title. We decline to consider this factor in our de novo review of reasonable suspicion for two related reasons. First, the government did not raise this factor below, and the district court did not appear to consider it.
The Appeals Court isn’t obligated to consider this last-minute addition to the government’s arguments. But even so, it takes time to explain why it wouldn’t consider this evidence of anything, much less supportive of its reasonable suspicion assertions.
We conclude that the record on this point is inadequately developed because it is devoid of details concerning the condition of the vehicle and market rates at the time of purchase, which is context needed to measure the probativeness of the price Mr. Leon paid.
While things might have seemed sketchy, they weren’t constitutionally sketchy.
The factors cited by the district court and the government are not inconsistent with drug trafficking, but they are also not meaningfully indicative of drug trafficking.
And away goes the 76 pounds of meth discovered, along with the conviction this evidence secured. Hopefully, the lessons learned (and made precedent through publication) discourage officers from pretending normal driver behavior is somehow suspicious. But, given the odds, it seems safe to say this will do nothing to prevent cops from converting minor moving violations into fishing expeditions.
No comments on this item Please log in to comment by clicking here