United States v. Lopez

• Decision Date: 27 February 2017
• Docket Number: No. 15-3130, No. 15-3134,15-3130
• Citation: 849 F.3d 921
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Adrienne LOPEZ, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Angela Marie Lopez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

849 F.3d 921

UNITED STATES of America, Plaintiff–Appellee,

v.Adrienne LOPEZ, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Angela Marie Lopez, Defendant–Appellant.

No. 15-3130

No. 15-3134

United States Court of Appeals, Tenth Circuit.

FILED February 27, 2017

John C. Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant–Appellant Adrienne Lopez.

Sean C. McEnulty, Attorney at Law, McNulty Law Firm, P.A., Wichita, Kansas, for Defendant Angela Marie Lopez.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, with him on the brief), Office of the United States Attorney, Topeka, Kansas, for Plaintiff–Appellee.

Before KELLY, HARTZ, and MATHESON, Circuit Judges.

HARTZ, Circuit Judge.

Defendants Adrienne Lopez and Angela Lopez, no relation, appeal their convictions and sentences on charges of possessing methamphetamine with intent to distribute and conspiracy to do so. We need not address most of their arguments because we agree with them that the methamphetamine found in their car must be suppressed. They were properly stopped because Angela was speeding. But the officer did not have reasonable suspicion to continue their detention to obtain a drug-detection dog after he issued Angela a warning and Defendants refused to consent to a search of their vehicle. As alternative grounds for affirming the admission of the evidence, the government argues (1) that Adrienne cannot complain of the search because it was not a fruit of her detention and (2) that the continued detention was lawful anyway because there was probable cause to arrest Angela for driving without a license. We reject both arguments. The search of the vehicle was based on the dog's alert to marijuana in Adrienne's purse and the police dispatcher informed the officer on the scene that Angela had a valid license.

I. BACKGROUND

At 3 p.m. on June 21, 2013, Angela was driving a 2013 Dodge Avenger eastbound on U.S. Route 54 toward Wichita. Kansas Highway Patrol Trooper Robert Krause pulled the car over for going 79 miles per hour in a 65–mile-per-hour zone. Krause had graduated from the police training academy six months earlier and had worked as a solo patrolman for two months. The stop was recorded on Krause's dashboard camera. He approached the driver's side of the Dodge and told Defendants that he had pulled them over for speeding. The passenger, Adrienne, asked where they were speeding, and Krause told her. Throughout the encounter Adrienne, rather than Angela, the driver, did almost all the talking, which Krause said can be a sign of nervousness.

After being told that the car was a rental, Krause asked Angela for her license, insurance, and car-rental paperwork. While Angela looked for those documents, Krause turned his attention to the backseat. Immediately, Adrienne said, "Don't look back there, it's a mess." Gov't Suppression Hr'g, Ex. 1, Videotape of Traffic Stop at 1:38–1:42 (Videotape). The backseat was not particularly messy; only a few bags and a blue cooler were on the seat.

Krause then asked the women about their travel plans. Adrienne told him that they were coming from California and headed to "Kansas City or Nebraska" to rescue her sister "because she was getting beat up by her boyfriend." R. at 507, Suppression Hr'g at 18 (Suppression Hr'g). At that point Angela handed him her documents. Instead of her license she provided a receipt from the California Department of Motor Vehicles that was issued to her when she reported losing her license. The rental paperwork stated that the car was rented in El Monte, California, at 5:30 p.m. on June 20 for two days, to be returned to the same location.¹

Krause asked the women if they had any drugs, such as marijuana, methamphetamine, or heroin, in the car. They replied no, but Adrienne added that she needed some marijuana because the drive was taking too long. This prompted Krause to inquire further into their travel plans. They told him that they left California at about 6 p.m. the night before and drove through the night. When asked if they stopped a lot, Adrienne replied, "a lot, too much." Videotape at 3:38–3:40. With that, Krause returned to his car to check Angela's documents.

Krause relayed Angela's information to the dispatcher and learned that she had a valid driver's license and no criminal history. He reapproached the driver's side of the car, returned Angela's paperwork, and warned her for speeding and not having her license. Adrienne thanked him and asked whether a person can get in trouble for not having her license when driving. Krause explained that she could. He then told Defendants to have a safe trip and turned to walk away.

After taking four steps away from the Dodge, Krause turned around and walked to the driver's side window. He asked Angela if she minded answering a few more questions, and she consented. He again asked her where they were headed, and again Adrienne interceded, saying that she did not know the exact city because her cell phone had not been working for the past two hours. Krause asked Defendants if they were related, and they gave different answers. Talking over each other, Angela said that they were friends, while Adrienne said that they were cousins. Adrienne then explained that they had known each other for a very long time but were not related.

Krause next asked Defendants if he could search their vehicle, explaining that drugs were frequently trafficked on Route 54 and he was suspicious of their two-day car rental. After some hesitation they refused to consent. Nevertheless, Krause detained them until a drug dog could be ferried to their car. Twenty minutes later, the drug dog arrived with its handler. With Defendants standing away from the car, the dog sniffed around the car's exterior, then jumped through the open front passenger window and alerted on Adrienne's purse below the front seat. Adrienne admitted having some marijuana in her purse. Krause found the marijuana and proceeded to search the rest of the car. He found four vacuum-sealed packages beneath some ice water at the bottom of the blue cooler on the backseat. After calling his lieutenant to check if he could lawfully open the packages, he discovered what was later determined to be 1,766 grams (about four pounds) of 100% pure methamphetamine.

The United States District Court for the District of Kansas denied Defendants' motions to suppress. They were convicted by a jury of possessing more than 500 grams of methamphetamine with intent to distribute, and of conspiracy to do the same. See 21 U.S.C. §§ 841, 846. Defendants appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.

II. ANALYSIS

"When reviewing [the denial of] a motion to suppress, we view the evidence in the light most favorable to the government, accept the district court's findings of fact unless they are clearly erroneous, and review de novo the ultimate question of reasonableness under the Fourth Amendment." United States v. Pettit , 785 F.3d 1374, 1378–79 (10th Cir.), cert. denied , ––– U.S. ––––, 136 S.Ct. 282, 193 L.Ed.2d 205 (2015). A traffic stop must be justified at its inception and, in general, the officer's actions during the stop must be reasonably related in scope to the circumstances that initially justified it. See United States v. Davis , 636 F.3d 1281, 1290 (10th Cir. 2011). A stop may, however, be extended beyond that scope if the person stopped consents to the extension or if the police have a reasonable suspicion that other illegal activity has occurred or is occurring. See United States v. Moore , 795 F.3d 1224, 1229 (10th Cir. 2015).

Defendants do not contest the initial stop, and the government does not contest that Krause extended the stop beyond its initial purpose (enforcing traffic laws) without Defendants' consent. The propriety of the search depends solely on whether further detention to await the drug dog was lawful because Krause had reasonable suspicion that Defendants were engaged in criminal activity. The government bears the burden of proving reasonable suspicion. See Pettit , 785 F.3d at 1379. The officer must be able to articulate particular objective facts from which it is reasonable for a trained, experienced officer to believe that criminal activity is afoot. See United States v. Arvizu , 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ; United States v. Simpson , 609 F.3d 1140, 1146–47 (10th Cir. 2010). The determination is based on the totality of the circumstances; reasonable suspicion can be founded on a combination of factors that individually may be susceptible of innocent explanation. See Arvizu , 534 U.S. at 277–78, 122 S.Ct. 744.

A. Legality of Continued Detention

We hold that Krause did not have reasonable suspicion to prolong the stop to await the drug dog. The government points to three suspicious factors justifying detention: (1) Adrienne was nervous; (2) Adrienne asked Krause not to look at the backseat because it was messy even though it was not; and (3) Defendants' travel plans were implausible.² As for Adrienne's nervousness, we have consistently assigned this factor limited significance because its measure is so subjective and innocent people can vary widely in how they respond to an encounter with police. See Pettit , 785 F.3d at 1380. Only extreme nervousness can substantially contribute to reasonable suspicion. See id. ("[W]e require specific indicia that the defendant's nervousness was extreme...." (internal quotation marks omitted)). The district court did not find that either Adrienne or Angela was extremely nervous, Krause did not so testify, and it is not apparent on the videotape of the encounter. At the suppression hearing Krause recalled that he and Adrienne were having a "casual conversation," with the only suggestion of nervousness being that Adrienne was overly talkative. Suppression Hr'g at 68. And...