U.S. v. Smith

• Decision Date: 16 September 1986
• Docket Number: No. 85-3827,85-3827
• Citation: 799 F.2d 704
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Andrew SMITH, Stephen Lawrence Swindell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 704

799 F.2d 704

55 USLW 2202

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Andrew SMITH, Stephen Lawrence Swindell,

Defendants-Appellants.

No. 85-3827.

United States Court of Appeals, Eleventh Circuit.

Sept. 16, 1986.

Harrison T. Slaughter, Orlando, Fla., for Smith.

Robert Leventhal, Orlando, Fla., for Swindell.

Paul Moriarty, Asst. U.S. Atty., Orlando, Fla., Thomas E. Booth, Appellate Section/Criminal Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges, and TUTTLE, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

The issue in this case is whether the stop of appellants' vehicle was reasonable under the fourth amendment. The district court upheld the stop on the ground that officers had reasonable suspicion that the appellants were smuggling drugs, and denied appellants' motions to suppress. On appeal, the government has abandoned the position that the stop was a valid narcotics stop, and argues instead that the stop was a reasonable investigation of traffic offenses. This ground was rejected by the court below as pretextual. We agree with the district court that the traffic stop rationale must be rejected as pretextual, but disagree with the determination that the stop was a valid drug investigation. Accordingly, we reverse the denial of appellants' motions to suppress.

BACKGROUND

On the night of June 4-5, 1985, Trooper Robert Vogel of the Florida Highway Patrol was working with the Drug Enforcement Agency on a special operation to intercept drug couriers on Interstate 95. Trooper Vogel was with a DEA agent in a At 3:00 a.m. the appellants drove by in a 1985 white Mercury. Trooper Vogel testified that appellants matched a drug courier profile he relied upon:

marked patrol car parked in the median of Interstate 95, its headlights shining into the northbound lanes.

The car was travelling 50 miles per hour. The car was occupied by two individuals who were approximately thirty years of age.

The car displayed out of state tags. The driver appeared to be driving overly cautious and did not look in our direction as he proceeded past us. The car was traveling at 3:00 o'clock in the morning.

Trooper Vogel testified that, based on these factors, he developed a "reasonable suspicion" that the appellants' vehicle was hauling drugs. He began following the vehicle, and did so for about a mile and a half.

Vogel testified that while following the vehicle, he saw the car "weaving." His exact testimony was that:

I observed the right side of the wheels of that vehicle cross over the white painted edge line approximately six inches into the emergency lane.

The vehicle was then brought back into the center of the white [right?] northbound lane. Then the car drifted over to the white painted center line. However, the wheels did not touch or cross over the center line.

The vehicle then weaved an additional two times before it was stopped.

Trooper Vogel used his flashing lights to pull the vehicle over. He testified that he did not stop the car because it "weaved." Rather, he had determined to make an "investigative stop" of the vehicle from the moment he began pursuit in reliance on the drug courier profile.

Vogel approached the Mercury and asked for license and registration. Appellant Smith, who was the driver, produced a rental contract, which had expired three weeks earlier. Appellant Swindell explained that the car had been leased by his employer. Vogel attempted to verify this by having a dispatcher contact the rental company and crime information centers. At the same time, he asked the dispatcher to summon a drug dog. Additional DEA agents had joined the scene in the meantime, and the dog arrived at 3:40. The dog sniffed the exterior of the car, and indicated that it detected drugs. DEA agent Frank Chisari searched the trunk and found one kilogram of cocaine in a satchel. The DEA agents arrested the appellants, and the appellants were charged with conspiracy to possess cocaine with intent to distribute.

The appellants filed motions to suppress the cocaine found in their vehicle on the ground that the stop of their vehicle was unreasonable. The district court denied the motions, and after a jury trial both appellants were convicted. The sole issue on this appeal is the reasonableness of the initial stop of appellants' vehicle. ¹

ANALYSIS

The district court found that no traffic violation occurred, and that any "weaving" was only a pretextual reason for the stop. ² The court determined, however, that the drug courier profile provided adequate grounds for the stop. ³ On appeal, the government does not argue that Trooper Vogel had reasonable suspicion to stop appellants' car based on the drug courier profile. Instead, it relies entirely on an attack on the district court's ruling that the traffic stop rationale was invalid as pretextual.

We first consider the district court's determination that the stop was a valid investigation of possible drug activity. Although an officer may conduct a brief investigative stop of a vehicle, see Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Investigative stops of vehicles are analogous to Terry-stops, Terry, supra, and are invalid if based upon only "unparticularized suspicion or 'hunch,' " 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909.

Here, relying on a drug courier profile, Trooper Vogel stopped a car because two young men were traveling at 3:00 a.m. in an out-of-state car being driven in accordance with all traffic regulations. Except perhaps for the time of day, the few factors relied upon by Trooper Vogel would likely apply to a considerable number of those traveling for perfectly legitimate purposes along Interstate 95. Yet, that travelers should choose to journey at night--perhaps to avoid the heavier daytime traffic, or to squeeze as much time as possible out of a Florida vacation--does not reasonably provide any more suspicion of criminal activity than do the other factors cited by Trooper Vogel.

The culminating factor behind Trooper Vogel's decision to stop the car appears, then, to have been the failure of the driver to look at Vogel's patrol car. Such an action is, however, fully consistent with cautious driving: safety, after all, requires keeping one's eyes on the road. More significantly, to the extent that such an action is suspicious, it in no way gives rise to a reasonable suspicion of illegal activity either alone or in combination with the other circumstances surrounding the stop of appellants' car. Trooper Vogel stopped the car because the appellants matched a few nondistinguishing characteristics contained on a drug courier profile and, additionally, because Vogel was bothered by the way the driver of the car chose not to look at him. Vogel's suspicion therefore was not the result of "reasonable inferences" from "unusual conduct," Terry, 392 U.S. at 27, 30, 88 S.Ct. at 1883, 1884, 20 L.Ed.2d at 909, 911, but was instead a classic example of those "inarticulate hunches" that are insufficient to justify a seizure under the fourth amendment. 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. ⁴

That Trooper Vogel's "hunch" about the appellants proved correct is perhaps a tribute to his policeman's intuition, but it is not sufficient to justify, ex post facto, a seizure that was not objectively reasonable at its inception. See id., 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909. Because Vogel did not have a reasonable suspicion that the appellants were hauling drugs, the stop cannot be upheld on that ground. ⁵

Although no longer contending that the stop of appellants' automobile was justified to investigate for drug trafficking, the government vehemently attacks the district court's finding that the stop cannot be justified as a valid traffic stop. Appellants contend that the stop is completely invalidated by the court's finding that the traffic rationale was a pretext. The government, however, argues that the pretextual basis of a stop does not make the stop unreasonable. It claims that Vogel could have stopped the vehicle to issue a traffic citation or to investigate whether the driver was intoxicated. The government's position is, to say the least, ironic: its agent testified that he became suspicious of the vehicle because it was driven in an overly cautious manner, yet the government now contends that the stop was reasonable because the car was being driven carelessly. Nevertheless, the government's theory that Vogel could reasonably have stopped appellants' automobile places the pretext issue squarely before us.

We conclude that neither side has accurately interpreted the applicable law. The appellants are in error in contending that Trooper Vogel's subjective motivation alone invalidates the stop. The government, however, is similarly mistaken in arguing that the seizure was objectively reasonable because Trooper Vogel could have stopped the appellants' car based on his suspected safety concerns. So stated, this argument fails to distinguish between the two very different theories upon which the government relies. The government claims, first, that the "weaving" observed by Trooper Vogel constituted a traffic violation, and that Vogel thus had probable cause to stop the car to issue a citation. It argues alternatively that the "weaving" could have given reasonable suspicion of drunk driving, and that Vogel could have stopped the car to investigate.

We conclude that Trooper Vogel did not have probable cause to stop the car for a traffic violation. Furth...