State v. Teagle

NORRIS, Judge,

dissenting.

¶48 The majority holds Officer Greene had reasonable and “objective justification” *29 to transform his traffic stop 8 of Defendant into a drug investigation. See supra ¶25. The majority sets out the applicable legal principle — whether the totality of the circumstances justified Defendant’s continued detention. And, the majority correctly recognizes that the totality of the factors articulated by Officer Greene to justify his detention of Defendant “ ‘must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied.’ ” Id. (quoting United States v. Foreman, 369 F.3d 776, 781 (4th Cir.2004)). See also State v. Gonzalez-Gutierrez, 187 Ariz. 116, 120 , 927 P.2d 776, 780 (1996) (reasonable suspicion “must be particularized such that it does more than simply describe large numbers of others who are also driving on the highways in that vicinity and at that time.”).

¶ 49 “The concept of reasonable suspicion ... is not ‘readily, or even usefully, reduced to a neat set of legal rules.’ ” United States v. Sokolow, 490 U.S. 1, 7 , 109 S.Ct. 1581, 1585 , 104 L.Ed.2d 1 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 232 , 103 S.Ct. 2317, 2329 , 76 L.Ed.2d 527 (1983)). On review, which is to be de novo, our obligation is to determine independently whether the detaining officer had a “particularized and objective basis for suspecting the person stopped of criminal activity,” giving “due weight to inferences drawn from” the historical facts of the stop by the trial courts and law enforcement personnel. Ornelas v. United States, 517 U.S. 690, 696, 699 , 116 S.Ct. 1657, 1661, 1663 , 134 L.Ed.2d 911 (1996) (internal citations omitted). In making this evaluation, we do “not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common— sense conclusions about human behavior; jurors as fact-finders are permitted to do the same — and so are law enforcement officers.” Sokolow, 490 U.S. at 8 , 109 S.Ct. at 1585 -86 (quoting United States v. Cortez, 449 U.S. 411, 418 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621 (1981)).

¶ 50 The problem presented in this case is that most of the factors Officer Greene said triggered his suspicion did not arise out of “common-sense conclusions about human behavior,” or what the United States Supreme Court has also described as “commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Ornelas, 517 U.S. at 695 , 116 S.Ct. at 1661 (internal quotations and citations omitted). Instead, the circumstances Officer Greene found out of the norm or odd were grounded on his own peculiar view of normal versus abnormal behavior. The proof is in Officer Greene’s testimony. The majority’s summary of his testimony, however, fails to capture the chasm between it and “common-sense conclusions about human behavior.”

¶ 51 Officer Greene testified the two cell phones mounted on the dash board, fast food wrappers, a box of cookies, and a suitcase and clothes hanging in the back seat were “indicators ... out of the norm.” He concluded these were out of the norm indicators because cell phones are expensive, a person only needs one, people traveling “almost always” put their luggage in the trunk and do not eat fast food:

For starters, a single occupant would only have one cell phone. This subject had two and both were mounted, which led me to believe that both are used. Cell phones are not cheap. It is out of ordinary. With luggage in the back seat, people that go on any type of trip almost always put their luggage in the trunk of the vehicle. This was not the case. This was in the back seat.

Further, numerous fast food wrappers that were in the front of the vehicle. He advised me he was on vacation. Most people don’t stop at fast food places. There were cookies and that sort of thing sitting in the front passenger seat.

¶ 52 Officer Greene also found Defendant’s reason for going to Las Vegas “odd.” He reasoned a person who lives on the East Coast (Defendant had a home in Maryland) should want to go to Atlantic City, not Las *30 Vegas, to gamble and, further, should make plans:

A. I thought it was odd.

Q. Why?

A. Because he was traveling from Florida going to Las Vegas and made no reservations.

Q. Anything else beyond that?

A. He also stated he was going to play pool in Las Vegas. I asked him where he was going to play pool. He didn’t have a location. I asked if he was a professional and he stated no. I asked him if he was in a tournament. He stated no on that as well. He had no real plans. He was going to find a bar or location that had a pool table and play pool.

And:

Q. All right. Anything else that you remembered prior to reviewing your report? A. May I review my report?

Q. Sure.

A. Yes. Mr. Teagle advised me that he had a home in Maryland. With that in mind, I asked him why he didn’t go to Atlantic City, which would be the equivalent to Las Vegas on the East Coast, and he didn’t give a good response. In reviewing my report here, he stated that he was retired and he was on vacation.

¶ 53 Officer Greene found it suspicious that a retired person on vacation with Las Vegas as his destination would drive the route straight through instead of stopping. He thought that retired people who travel should stop along the way.

A. I believe Mr. Teagle advised me that he was on vacation from Florida going to Las Vegas. It took him two to three days for that and he traveled on Interstate 10 the entire trip from Florida to Tucson.

Q. Was there anything unusual about that?

A. Two to three days is about the maximum amount of time it will take to go from Florida to Tucson without stopping anywhere. It is not much of a vacation to jump on the interstate and travel the entire distance without stopping anywhere.

¶ 54 Finally, Officer Greene found it unusual that Defendant could not provide absolute assurances that no one had tampered with his car. Officer Greene was evidently of the view that a person driving the interstate must maintain 24/7 surveillance of his car. This is exactly what Officer Greene had to say:

A. I remember explaining that U.S. 93 is the major thoroughfare from Florida to Las Vegas. With that in mind, there is a high probability that there is contraband traveling up and down the road. I asked him if he had any guns, knives, weapons of mass destruction, drugs, which include marijuana, cocaine, heroin, methamphetamine or large sums of cash and he stated oh, no.

Q. Okay. Did you make any observation of Mr. Teagle as you were asking him that question?

A. Nothing comes to mind right off.

Q. Anything unusual about his response?

A. After asking him that, he stated oh, no to that question. No.

Q. Okay. Any conversation that followed that?

A. Yes. I asked him if there was a chance that anybody put any items in his vehicle and he stated none that he was aware of. For me, that is a red flag.

¶ 55 In my view, these circumstances did not give rise to reasonable suspicion, even giving due weight to Officer Greene’s experience and training. I recognize that a series of events, innocent when examined individually, may, when viewed together, give rise to reasonable suspicion. That is why we are obligated to consider the totality of the circumstances. But, in considering the totality of the circumstances, we must keep in mind the purpose this approach serves — to provide a screening mechanism so the entire traveling public is not subjected to random and unreasonable seizures. Simply, considerations that “reasonable and prudent men” would dismiss as unreliable or without any sliver of suspicious significance deserve no weight when it comes to determining whether there was reasonable suspicion. Cf. Reid v. Georgia, 448 U.S. 438, 441 , 100 S.Ct. 2752, 2754 , 65 L.Ed.2d 890 (1980) (conduct that *31 “deseribe[s] a very large category of presumably innocent travelers” is insufficient to constitute reasonable suspicion). Or put another way, “it is not enough that law enforcement officials can articulate reasons why they stopped someone if those reasons are not probative of behavior in which few innocent people would engage — the factors together must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied.” Karnes v. Skrutski, 62 F.3d 485, 493 (3rd Cir.1995) abrogated in part on unrelated issue, Curley v. Klem, 499 F.3d 199 (3rd Cir.2007).

¶ 56 Here, the foregoing circumstances— even when viewed in the aggregate — did not provide Officer Greene with a reasonable basis for distinguishing Defendant from the vast majority of innocent drivers. Indeed, in this conglomeration of circumstances, only one — the presence of two cell phones — seems at all slightly unusual. But, Defendant’s explanation to Officer Greene regarding the cell phones, “he stated he just wanted a new cellular phone,” reflects conspicuous consumption, not criminal conduct.

¶ 57 After stripping away the foregoing circumstances relied on by Officer Greene, only two other circumstances are left: Defendant’s decision to exit his vehicle and approach Officer Greene’s patrol car during the second stop, and Officer Greene’s opinion that “there is a high probability that there is contraband traveling up and down the road.” These factors, in my view, are simply too weak to support a determination that reasonable suspicion existed to detain Defendant. Indeed, given the relatively few major highways in Arizona leading to Las Vegas, all of them could be considered probable drug corridors.

¶ 58 I therefore dissent from the majority’s conclusion that the totality of the circumstances established a reasonable suspicion that Defendant was transporting illegal drugs and justified his detention by Officer Greene. The superior court should have granted Defendant’s motion to suppress and, accordingly, I would remand this matter to the superior court for further proceedings consistent with suppression of the evidence seized from Defendant’s car.

. Officer Greene used radar to "clock” Defendant going three miles over the speed limit.