403 F.3d 1120 (10th Cir. 2005), 03-8059, United States v. Santos

Docket Nº:03-8059.
Citation:403 F.3d 1120
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas Raymond SANTOS, Defendant-Appellant.
Case Date:April 06, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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403 F.3d 1120 (10th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas Raymond SANTOS, Defendant-Appellant.

No. 03-8059.

United States Court of Appeals, Tenth Circuit.

April 6, 2005

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James H. Barrett, Assistant Federal Defender (Michael G. Katz, Federal Public Defender, with him on the briefs), Cheyenne, Wyoming for Appellant.

Darrell L. Fun, Assistant United States Attorney (Matthew H. Mead, United States Attorney, with him on the brief), Cheyenne, Wyoming, for Appellee.

Before HARTZ, McCONNELL, and McWILLIAMS, Circuit Judges.

McCONNELL, Circuit Judge.

This case involves a routine traffic stop with the all-too-routine denouement, a drug conviction. But it has some troubling features: seeming reliance on the defendant's selective refusal of consent as a basis for reasonable suspicion, apparent inconsistencies between the district court's findings of fact based on the officer's testimony and the video tape of the traffic stop, and relatively weak indicators of suspicious behavior. Nonetheless, doing our best to apply the standards currently prescribed by the Supreme Court, we AFFIRM.

I. FACTS

On January 13, 2003, Wyoming Highway Patrol Trooper Ben Peech observed a white Lincoln Town Car driving eastbound, and clocked its speed at eighty-two miles per hour.1 Trooper Peech initiated a traffic stop and informed Defendant Thomas Raymond Santos, the vehicle's driver, that he had been stopped for driving eighty-two miles per hour in a seventy-five mile per hour zone. Trooper Peech asked for Mr. Santos's license and registration and noticed, while Mr. Santos collected the documents and handed them to him, that Mr. Santos's hand was visibly shaking. At that time Trooper Peech also observed that the car had California plates, that there was a cell phone in the ashtray, and that the car was clean and uncluttered. The car was licensed to a rental agency, and when Mr. Santos produced the rental agreement, Trooper Peech observed that Mr. Santos's hand was again visibly shaking.

Trooper Peech asked Mr. Santos to join him in his patrol car so that he could issue a warning for the speeding violation. While issuing the warning and conducting a routine check of Mr. Santos's documents and driving status, Trooper Peech learned from the rental agreement that Mr. Santos's

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car had been rented January 10, 2003, in Sonoma County, California, and was due to be returned there on January 17, 2003. While completing his check and the warning, Trooper Peech began to question Mr. Santos regarding his travel plans. His suspicions were aroused both by answers he found to be evasive and by Mr. Santos's apparent nervousness:

Defendant stated that he was going to New York City to visit his mother and move his sister out to California. Defendant said that he had last seen his mother a year ago and that his sister was recently divorced and worked for the Division of Motor Vehicles ("DMV") in New York, but that she had not yet found work in California. When Trooper Peech asked Defendant how long he would stay in New York, Defendant was very vague, stating that his job only gave him a couple of weeks. When Peech asked if he would be there for a week or so, Defendant responded, "Yeah, more or less." Peech noticed that Defendant became visibly nervous. Defendant suddenly changed topics from discussing the details of his trip to the weather, stating that he heard that it would be snowing on his return trip. Defendant also swallowed hard, licked his lips, nervously stroked the top edge of the head liner of the patrol car with his hand, and his lip was quivering.

Op. at 3. Trooper Peech was sufficiently suspicious of Mr. Santos's answers and manner at this point to ask dispatch to conduct a criminal history check on Mr. Santos. Trooper Peech continued to discuss Mr. Santos's travel plans, eliciting the information that Mr. Santos would be driving back to California. Trooper Peech then explained the warning citation to Mr. Santos, returned his documents, and wished him a safe trip. Mr. Santos opened the door and continued to converse with Trooper Peech, although now on topics unrelated to his own travel plans. After Trooper Peech again wished him a safe trip, Mr. Santos left the vehicle.

A few moments later, however, when Mr. Santos had reached the front of the patrol car, Trooper Peech asked, and Mr. Santos gave, permission to ask additional questions. Trooper Peech returned to the topic of Mr. Santos's itinerary, and was informed that Mr. Santos was going to New York to visit his mother and "hopefully" to pick up his sister, that he planned to stay there three or five days, and that his sister was recently divorced and was moving to California without having found a job there. Mr. Santos was able to supply an address for his mother's brownstone house in New York, but he did not know the phone number. Mr. Santos was also uncertain what his sister's job at the DMV entailed or what the exact ages of her three young children were. Mr. Santos said that the woman he had previously referred to as his sister was actually his half-sister. Mr. Santos also indicated that he was irritated with Trooper Peech's persistent course of questioning when the warning had already been issued.

At this juncture, dispatch notified Trooper Peech that Mr. Santos had a prior criminal history of several drug offenses, and Trooper Peech became "highly suspicious that the vehicle contained drugs." Op. at 5. Trooper Peech accordingly asked Mr. Santos if there were any guns, bombs, dead bodies, or body parts in the vehicle, to which Mr. Santos replied that there were not and asked if Trooper Peech wanted to check the car. When Trooper Peech asked if there were any drugs in the car, Mr. Santos said that there were not, but when asked for permission to search the car, responded indirectly with the question, "Does it look like there are dead bodies in there?" Op. at 6. When asked again for permission to search, Mr. Santos used the key fob to open the trunk automatically.

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Before beginning the search, Trooper Peech again asked for permission to search for drugs, and Mr. Santos asked why permission was sought. Trooper Peech informed Mr. Santos that his story was inconsistent and that he had a prior criminal history for drugs. Mr. Santos denied having any prior drug charges. Upon being asked for permission again, Mr. Santos waved his open arms at the trunk in a gesture Trooper Peech understood to mean he had permission to search the trunk.

Trooper Peech found in the trunk a Little America plastic bag, two smaller bags, and a new black suitcase with a lock and a storage tag dated December 3 on it. Trooper Peech asked for, and was ultimately denied, Mr. Santos's permission to search the suitcase. Trooper Peech immediately called for a drug dog, which arrived in approximately twenty-two minutes, and alerted to the presence of drugs. A subsequent search of the suitcase revealed five plastic bags containing methamphetamine weighing approximately five pounds in total.

Mr. Santos was indicted for possessing with the intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). After the district court's denial of his motion to suppress the evidence of the methamphetamine, Mr. Santos entered a conditional plea of guilty pursuant to a plea agreement. Mr. Santos now appeals the denial of his motion to suppress, maintaining that Trooper Peech did not have the requisite reasonable suspicion for a police officer to detain a suspect pending the arrival of a drug dog.

II. ANALYSIS

A. STANDARD OF REVIEW

The Supreme Court has described appellate review of whether an officer had reasonable suspicion as " de novo, " Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), which ordinarily means "[a]n appeal in which the appellate court uses the trial court's record but reviews the evidence and law without deference to the trial court's rulings." Black's Law Dictionary 94 (7th ed.1999). As Justice Scalia has noted, however, it is "a peculiar sort of de novo review." United States v. Arvizu, 534 U.S. 266, 278, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (Scalia, J., concurring). Not only must we uphold the factual findings of a district court made in connection with a motion to suppress unless those findings are clearly erroneous, United States v. Williams, 271 F.3d 1262, 1266 (10th Cir. 2001) (citing United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998)), but we must view the evidence in the light most favorable to the determination of the district court. Id. (citing United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000)); see also Ornelas, 517 U.S. at 699, 116 S.Ct. 1657 ("[A] reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges...."). Reviewing courts must also defer to the "ability of a trained law enforcement officer to distinguish between innocent and suspicious actions." United States v. McRae, 81 F.3d 1528, 1534 (10th Cir. 1996); see also Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (reviewing courts must "allow[ ] officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person' ") (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)); Ornelas, 517 U.S. at 700, 116 S.Ct. 1657 ("[O]ur cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists.").

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