U.S. v. Salzano

• Decision Date: 16 October 1998
• Docket Number: No. 97-3337,97-3337
• Citation: 158 F.3d 1107
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Robert SALZANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1107

158 F.3d 1107

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Robert SALZANO, Defendant-Appellant.

No. 97-3337.

United States Court of Appeals Tenth Circuit.

Oct. 16, 1998.

James J. Warner, San Diego, California, for defendant-appellant Robert Salzano.

James E. Flory, Assistant United States Attorney, Topeka, Kansas (Jackie N. Williams, United States Attorney with him on the brief) for plaintiff-appellee United States.

Before: SEYMOUR, Chief Judge, PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO and MURPHY, Circuit Judges.

Before: EBEL, HENRY, and BRISCOE, Circuit Judges.

ORDER

The appellee's petition for rehearing and suggestion for en banc consideration is denied.

The panel voted to deny rehearing with Judge Briscoe dissenting.

A poll was requested on the en banc suggestion. Voting in favor of en banc rehearing were Judges Tacha, Baldock, Briscoe and Murphy. Voting against en banc rehearing were Chief Judge Seymour and Judges Porfilio, Anderson, Brorby, Ebel, Henry and Lucero. Judge Kelly did not participate.

Because a majority of the circuit judges who are in regular active service voted to deny the petition for rehearing en banc, that petition is denied.

OPINION

EBEL, Circuit Judge.

Defendant-Appellant Robert Salzano ("Mr.Salzano") appeals the district court's denial of his Motion to Suppress Evidence. Because the district court erred in refusing to grant Mr. Salzano's motion, we reverse the district court's ruling and remand the case with instructions that the evidence be suppressed.

Background

On December 20, 1996, Kansas Highway Patrol Trooper John Guerrero ("Trooper Guerrero") stopped Mr. Salzano, who was driving a motor home along I-70, for straying onto the shoulder. Trooper Guerrero suspected that Mr. Salzano might be falling asleep or intoxicated. At the stop, Mr. Salzano produced a valid driver's license. Trooper Guerrero asked Mr. Salzano if the vehicle belonged to him; when Mr. Salzano indicated that the motor home was rented, Trooper Guerrero asked to see the rental agreement. Mr. Salzano invited Trooper Guerrero into the vehicle while Mr. Salzano searched for the rental agreement. Upon entering the vehicle Trooper Guerrero noticed the smell of evergreen, which he attributed to the presence of a natural evergreen wreath hanging in the vehicle. He also noticed the smell of a dog that was traveling with Mr. Salzano. As Mr. Salzano handed him the rental papers, Trooper Guerrero noticed that Mr. Salzano "seemed a little nervous. His hands were shaking as he handed [Trooper Guerrero] the paper."

In response to Trooper Guerrero's questions as to his travel plans, Mr. Salzano indicated that he was on vacation and was driving from San Diego, California, to Springfield, Massachusetts, to visit his father. In response to Trooper Guerrero's questions about the relative expense of renting a motor home to drive across country, compared to flying or renting a smaller vehicle, Mr. Salzano replied that he planned to drive his father back to California and that they might visit some friends in South Dakota. Trooper Guerrero noted that the rental papers handed him by Mr. Salzano indicated that a party of three would be traveling in the motor home, but Mr. Salzano was traveling alone. Trooper Guerrero did not question Mr. Salzano about this. Mr. Salzano indicated to Trooper Guerrero that he was married; Trooper Guerrero asked Mr. Salzano why he was traveling without his wife, to which Mr. Salzano replied that she could not get time off from work.

Trooper Guerrero performed a number of intoxication tests on Mr. Salzano, all of which were negative. Trooper Guerrero returned Mr. Salzano's paperwork and issued him a verbal warning about the hazards of driving while sleepy. He then asked if he could search the vehicle for drugs. Mr. Salzano refused to consent to the search. Trooper Guerrero called for a drug dog team, which arrived on the scene approximately 27 minutes later. When the drug dog alerted, officers searched the vehicle and found approximately 494 pounds of marijuana.

Mr. Salzano was indicted for possession with intent to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). He moved to suppress the seized evidence on the basis that it was obtained as the result of an unlawful seizure. The district court, without making any factual findings, denied the motion. Mr. Salzano then entered into a conditional guilty plea, reserving the right to appeal the district court's denial of his motion to suppress. Because the district court erred in refusing to grant Mr. Salzano's motion to suppress, we reverse the denial of his motion and remand for further proceedings.

Discussion

An investigative stop that was neither consensual nor the result of probable cause must fulfill two requirements: (1) the stop must be " 'justified at its inception,' " and (2) the resulting detention must be " 'reasonably related in scope to the circumstances which justified the interference in the first place.' " United States v. Shareef, 100 F.3d 1491, 1500-01 (10th Cir.1996) (quoting Terry v. Ohio 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). In the absence of probable cause or a warrant, the officer must have "an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring" in order to justify detaining an individual for a period of time longer than that necessary to review a driver's license and vehicle registration, run a computer check, determine that the driver is authorized to operate the vehicle, and issue the detainee a citation. United States v. McRae, 81 F.3d 1528, 1534 (10th Cir.1996) (quoting United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.1994)). We view the evidence in the light most favorable to the government, and review the district court's factual findings for clear error, but we review de novo the district court's conclusion that the officers had reasonable, articulable suspicion of criminal activity at the time of the seizure. See United States v. Carhee, 27 F.3d 1493, 1496-97 (10th Cir.1994) (citations omitted). The government bears the burden of proving the reasonableness of the officers' suspicion. See id. at 1496 & n. 2 ("The government ... bears the burden of proving that its warrantless actions were justified."); United States v. Finefrock, 668 F.2d 1168, 1170 (10th Cir.1982) ("Whenever a defendant challenges a warrantless search or seizure, the government carries the burden of justifying the agent's actions.") (citing Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)); see also United States v. Longmire, 761 F.2d 411, 418 (7th Cir.1985) ("[T]he government bore the burden of establishing by a preponderance of the evidence ... that Officer Pacheco had a reasonable suspicion justifying the seizure of Longmire and her companion.").

Mr. Salzano does not contest the justification for the stop. Rather, Mr. Salzano claims that once Trooper Guerrero terminated the traffic stop by handing Mr. Salzano his paperwork, Trooper Guerrero lacked a reasonable suspicion of criminal activity necessary to justify detaining him further. We must review the factors enumerated by Trooper Guerrero, both individually and in the aggregate, and determine whether, under the totality of the circumstances, those factors give rise to a reasonable suspicion of criminal activity. See United States v. Wood, 106 F.3d 942, 946 (10th Cir.1997). In doing so, we give deference to "a law enforcement officer's ability to distinguish between innocent and suspicious actions," but keep in mind that "[i]nchoate suspicions and unparticularized hunches ... do not provide reasonable suspicion." Id. Moreover, as we have held, "[e]ven though reasonable suspicion may be founded upon factors consistent with innocent travel, ... '[s]ome facts must be outrightly dismissed as so innocent or susceptible to varying interpretations as to be innocuous.' " Id. (quoting United States v. Lee, 73 F.3d 1034, 1039 (10th Cir.1996)).

At the suppression hearing, the government relied upon the following factors as support for the reasonableness of Trooper Guerrero's suspicion that criminal activity was afoot: (1) Mr. Salzano's uneconomical decision to travel across the country in an expensive motor home at a rental cost of $3,900 and a fuel cost of approximately $1,000; (2) the discrepancy between the number of persons stated on the rental agreement and the fact that Mr. Salzano was traveling alone; (3) the size of the motor home and the knowledge that such motor homes are often used to haul large quantities of drugs; (4) Mr. Salzano's visible nervousness while handing Trooper Guerrero the rental papers; (5) the smell of evergreen in the vehicle; and (6) Mr. Salzano's statement that he had come from California. We analyze each of these factors separately, and then look at them in the aggregate to determine whether they support a reasonable suspicion of criminal activity.

First, this court held in Wood that the decision to take the time and expense to drive, rather than fly or use some other mode of transportation, cannot support a reasonable suspicion of criminal activity, even when it would seem to make more sense financially to choose an alternative form of transportation and even when the defendant states that he is not currently employed. "There is nothing criminal about traveling by car to view scenery.... Moreover, temporary unemployment does not mean that vacations are financially unattainable. [The defendant] may have saved money for the trip; he may have been the donee of a wealthy relative or acquaintance; he might have won the lottery or not yet exceeded the credit line on his VISA card." Wood, 106 F.3d at 947. Simply because the officer would not have chosen a particular vehicle for travel does not make that choice indicative of criminal activity.

Here, Mr. Salzano indicated...