State v. Brumfield

¶1dissenting.

¶2I respectfully dissent. As noted eloquently in U.S. v. Bloomfield: “The Fourth *919Amendment is still part of the Constitution. The police cannot be allowed to engage, without reasonable suspicion, in intrusive practices likely to invade the privacy of a large number of innocent citizens in the name of drug interdiction.” 40 F.3d 910, 924 (8th Cir.1994, McMillian, J., dissenting.) I would find that the fifty-minute-long detention was not based on reasonable and articulable suspicion, but instead was based entirely on Black’s subjective instinct and hunch. As this court has noted on numerous occasions: “This reasonable suspicion standard requires less than probable cause, but more than speculation or instinct on the part of the officer.” State v. Naccarato, 126 Idaho 10, 12, 878 P.2d 184, 186 (Ct.App.1994); State v. Emory, 119 Idaho 661, 664, 809 P.2d 522, 525 (Ct.App.1991).

¶3The facts of this case should be amplified to give the reader a more realistic perspective of what happened on October 1, 1999, on Interstate 15 north of Pocatello. Black was on duty as the highest ranking officer with the Criminal Interdiction Unit of the Bannock County Sheriffs Department (CIU). At the suppression hearing, Sheriff Loren Nielson agreed that the CIU’s primary function was “to discover [drug] trafficking and arrest and convict people [trafficking drugs].” This was to be achieved by using probable cause traffic violations to stop drivers on the roadways and then ask questions pertaining to other illegal activity. Officers of the CIU were expected to “get more people to voluntarily consent to searches of their vehicles.”

¶4Black testified that his attention was drawn to Brumfield’s ear because it was doing 77 mph in a 75 mph zone, had only one license plate, and the driver did not look at him. Based solely on the latter two facts, Black pursued the car. Black pulled alongside the car, which had slowed to 55 mph, and observed that the driver of the vehicle “appeared to be nervous” while the passenger in the front seat was “sitting low in the seat” and puffing “excessively” on a cigar. Several minutes later, when dispatch informed Black that the car’s registration had been suspended, he initiated a traffic stop.

¶5Black ordered the driver, Houston, a young African American male dressed in gym clothes with his hair done in “cornrows,” to exit the vehicle. Black asked several initial questions regarding the registration of the vehicle, but within two minutes patted Houston down for weapons and asked if Houston was involved in “gang-banging.” Black then called dispatch to request a driver’s license and warrant check on Houston and to summon backup.

¶6Black told Houston to stand a distance down the road and then ordered the passenger, Brumfield, also a young African American male, to exit the vehicle. Again Black asked several initial questions about the car’s registration and then patted Brumfield down, also inquiring about “gang banging.” Black then asked a series of questions about who owned the car- and the status of the registration, but at no time did he start filling out paperwork to issue a citation for lack of registration. Dispatch responded that Houston’s license was valid and he had no outstanding warrants.

¶7Black then asked Brumfield if there were any drugs or weapons in the car. When Brumfield said, “No,” Black asked both Brumfield and Houston if he could search the trunk of the car. They refused, claiming they had borrowed the ear- from Brumfield’s brother and didn’t know what was in the trunk. They did consent to a search of their luggage located in the back seat. While searching the luggage, Black discovered cooked pork chops in a Ziploe bag. Finding no contraband in the passenger compartment, Black asked several more tunes for permission to search the trunk, but Brumfield steadfastly refused. At this time, approximately 2:26 p.m., Black announced that he believed there were drugs in the trunk and he was calling for a drug dog. Black then advised the parties that the vehicle “cannot be moved” as it was going to be impounded.1 Black and his fellow officers *920required Brumfield and Houston to stand at separate locations on the side of the Interstate for the next thirty minutes until Deputy Young and “Falco” arrived.

¶8This court recently held in State v. Parkinson, 135 Idaho 357, 17 P.3d 301 (Ct.App.2000), that it is not necessarily a Fourth Amendment violation for an officer who has stopped someone for a traffic violation to ask unrelated questions about drugs and weapons. See also U.S. v. Shabazz, 993 F.2d 431 (5th Cir.1993) (police officer’s questioning on a subject unrelated to the purposes of the stop was not, in and of itself, a Fourth Amendment violation). The proper analysis under Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), is to focus on whether the police action increased the scope of the detention beyond a routine traffic stop. The scope of detention permissible in a given stop turns on the specific facts of the situation and the reasonable inferences officers may draw from those facts. See, e.g., State v. DuValt, 131 Idaho 550, 554, 961 P.2d 641, 645 (1998). Factors to consider are the duration of the stop and its intensity. Id.

¶9Black’s initial questioning about gang activity, drugs and weapons did not, in and of itself, improperly intensify the degree of the detention. However, once a reasonable time passed in which Black could have issued the traffic citation, the relevant question is whether Black had a reasonable suspicion, derived from specific articulable facts, that Brumfield had committed or was about to commit a crime. Royer, 460 U.S. at 498, 103 S.Ct. at 1324, 75 L.Ed.2d at 237; United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581-2582, 45 L.Ed.2d 607, 618 (1975). The facts are to be judged against an objective standard: would the facts available to the officer at the moment of the seizure “warrant a man of reasonable caution in the belief’ that the seizure was appropriate? Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, as is the case here.

¶10Black testified that in light of his experience in drug interdiction, he observed enough suspicious behavior to give him the requisite reasonable articulable suspicion. Black catalogued the following behavior: 1) the car was going 77 mph in a 75 mph zone; 2) the driver did not look at Black when he passed; 3) when Black caught up to the car, the ear slowed to 55 mph; 4) Houston looked nervous; 5) Brumfield was slouched low in his seat and puffing a cigar; 6) Houston and Brumfield gave inconsistent stories about the purpose of their trip; 7) Houston and Brumfield did not know what was in the trunk despite having driven the car for three days; and 8) the presence of the pork chops, coupled with the cigar smoke, which Black believed were attempts to mask the odor of illegal drugs.2 These objective facts reeount*921ed by Black — the speeding, the slowing down, the nervousness, the cigar smoking, the pork chops, the inconsistent stories — are readily susceptible to myriad innocent explanations. See, e.g., United States v. Garcia, 23 F.3d 1331, 1334-35 (8th Cir.1994) (holding that the factors cited by a state trooper as the basis for reasonable suspicion were insufficient in part because many of the factors were susceptible to an innocent explanation.) Although I am mindful that “conduct which would be wholly innocent to the untrained observer ... might acquire significance when viewed by an agent who is familiar with the practices of drug smugglers and the methods used to avoid detection,” United States v. Wallraff, 705 F.2d 980, 988 (8th Cir.1983), I find it difficult to perceive the connection between nervousness, slowing down while being tailed for over ten minutes by a marked police cruiser, puffing on a cigar, bad posture and having a leftover pork chop in a Ziploc bag; and the crime of drug trafficking. In isolation and in the aggregate, each of these behaviors is perfectly innocent and legal. To hold that reasonable suspicion arises from these behaviors will call under suspicion a large group of innocent motorists. As stated in Bloomfield, “[w]hen examining a search and seizure question ... courts must be Argus-eyed 3 in the protection of innocent activity from unreasonable intrusion.” 40 F.3d. at 924.

¶11I find the police action in this case troubling and transparent. Black’s attention was drawn to an out-of-state ear driven by two young African American men. Based on a hunch, which may have been consciously or unconsciously driven by racial drug courier profiling, he decided to stop the car and follow the directive of the CIU to obtain consent for a vehicle search. Once the stop began, Black moved quickly to this purpose, abandoning any investigation of the purported reason for the stop. It is clear that Black had no intention of impounding the ear over the registration issue. And when Brumfield refused consent to search the trunk, as he had every right to do, Black penalized him by detaining him for thirty additional minutes. While it is true that in this instance Black’s hunch was correct and a large quantity of marijuana was discovered, our Fourth Amendment jurisprudence should not be outcome driven.4 It is beyond cavil that the proliferation of drugs is a scourge on our society, but as noted in Garcia: “[The courts] are not empowered to suspend constitutional guarantees so that the government can more effectively fight the war on drugs.” 23 F.3d at 1336. Black, as the highest ranking officer of the CIU, has other constitutionally acceptable options available to him. If he wishes to continue this type of activity— stopping cars for traffic violations and quickly running a drug dog around them — he is free to do so. It is now well settled that use of a drug dog to sniff the exterior of a vehicle is not a search. U.S. v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-2645, 77 L.Ed.2d 110, 121 (1983); see also Parkinson, 135 Idaho 357, 17 P.3d 301. It is equally well settled that once a drug canine alerts on a ear, the police have probable cause to conduct a warrantless search of the vehicle. State v. Gallegos, 120 Idaho 894, 821 P.2d 949 (1991). If Black wants to conduct this sort of *922law enforcement activity, lie simply needs to have “Falco” or “Gunnar” or any other drug-sniffing quadruped riding in the police car with him at all times.

¶12In conclusion, I simply cannot support the continued detention of these two individuals for over thirty minutes awaiting the arrival of a drug dog, based solely on the instinctual hunches and speculation of law enforcement as detailed above. This case should be treated no differently than did the Idaho Supreme Court in State v. Lira-Lara, 132 Idaho 465, 974 P.2d 1094 (1999) (subsequent detention and delay of forty-five minutes to obtain consent to search vehicle and await presence of drug dog held to be unreasonably long and unconstitutional). Accordingly, I would overturn the trial courts order denying the motion to suppress.