Petition for Writ of Certiorari — Nicholas James Imhoff, Petitioner v. United States

NO. _____________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________

NICHOLAS JAMES IMHOFF,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

____________________________

On Petition for Writ of Certiorari

to the Court of Appeals

for the Ninth Circuit

__________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________

SHANNON M. DORVALL

12424 WILSHIRE BLVD., STE. 700

LOS ANGELES, CA 90025

(310) 315-1100

shannondorvall@criminalattorney.com

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTION PRESENTED

Whether a person driving a rental car is sufficient

factual basis during a routine traffic stop to create

reasonable suspicion to perform a vehicle search.

i

LIST OF PARTIES

All parties appear in the caption of the case above.

RELATED CASES

United States v. Nicholas James Imhoff

United States Court of Appeals

for the Ninth Circuit

21-30077

United States v. Nicholas James Imhoff

United States District Court

for the District of Montana

Billings Division

1:20-cr-00024-DLC 2020

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................................... i

LIST OF PARTIES................................................... ii

RELATED CASES ................................................... ii

TABLE OF CONTENTS .......................................... iii

APPENDIX TABLE OF CONTENTS .................... iv

TABLE OF AUTHORITIES. ................................... v

OPINIONS BELOW ................................................. 1

STATEMENT OF JURISDICTION. ....................... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE......................................... 2

STATEMENT OF THE CASE ................................. 2

REASONS FOR GRANTING PETITION ............... 7

Circuits Are Split On Whether Use of a Rental

Car Creates Reasonable Suspicion to Search A

Vehicle during a Routine Traffic Stop ................. 12

CONCLUSION ......................................................... 21

iii

APPENDIX

A. Court of Appeals for the Ninth Circuit

Affirming Denial of Motion to Suppress

Evidence .......................................................... A-2

B. United States District Court for

The District of Montana, Billings Division

Order Denying Supplemental Motion

to Suppress Evidence ...................................... A-7

C. United States District Court for

The District of Montana, Billings Division

Order Denying Motion to

Suppress Evidence .......................................... A-12

D. Court of Appeal for the Ninth Circuit

Order Denying Petition for Rehearing and

Hearing En Banc ............................................ A-25

E. Fourth Amendment of U.S. Constitution ...... A-27

iv

TABLE OF AUTHORITIES

Cases

Byrd v. United States, 138 S. Ct. 1518 (2018) .......... 8

Florida v. Royer, 460 U.S. 491 (1983) ..................... 16

Heien v. North Carolina, 574 U.S. 54 (2014) .......... 11

Karnes v. Skrutski, 62 F.3d 485 (3d Cir. 1995) ...... 16

Navarette v. California, 572 U.S. 393 (2013) .......... 11

Reid v. Georgia, 448 U.S. 438 (1980) ....................... 14

United States v. Beck, 140 F.3d 1129

(8th Cir. 1998) ................................................. 18, 19

United States v. Boyce, 351 F.3d 1102

(11th Cir. 2003) ............................................... 20, 21

United States v. Bradford, 423 F.3d 1149

(10th Cir. 2005) .................................................... 19

United States v. Evans, 786 F.3d 779

(9th Cir. 2015) ......................................... 7, 9, 10, 21

United States v. Hernandez, 418 F.3d 1206

(11th Cir. 2005) ..................................................... 21

United States v. Hurtt, 31 F.4th 152

(3d Cir. 2022) .................................................. 13, 14

v

United States v. Jenson, 462 F.3d 399

(5th Cir. 2006) ................................................. 16, 22

United States v. Lopez, 849 F.3d 921

(10th Cir. 1997) ..................................................... 20

United States v. Macias, 658 F.3d 509

(5th Cir. 2011) ................................................. 16, 17

United States v. Ramdihall, 859 F.3d 80

(1st Cir. 2017) ........................................7, 12, 13, 22

United States v. Rodriguez-Escalera, 884 F.3d 661

(7th Cir. 2018) ....................................................... 17

United States v. Santos, 403 F.3d 1120

(10th Cir. 2005) ............................................... 19, 20

United States v. Sokolow, 490 U.S. 1 (1989)........... 14

United States v. Williams, 808 F.3d 238

(4th Cir. 2015) ................................................. 15, 16

United States v. Wood, 106 F.3d 942

(10th Cir. 1997) ..................................................... 19

Wong Sun v. United States, 371 U.S. 471(1963) ...... 9

Constitutional Provisions

U.S. Const. amend. IV ......................2, 7, 9, 12, 14, 16

Statutes

18 U.S.C. § 2 ............................................................... 6

vi

21 U.S.C. § 841(a)(1) .................................................. 6

28 U. S. C. § 1254(1) ................................................... 2

vii

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a Writ of

Certiorari issue to review the judgment of the court

below.

OPINIONS BELOW

The Memorandum confirming Petitioner’s conviction

and the District Court’s denial of Petitioner’s motion

to suppress evidence issued by the Court of Appeals

for the Ninth Circuit on February 28, 2022 is not

reported but can be located at United States v.

Imhoff, 2022 U.S. App. LEXIS 5232. (App. A, infra).

The Order issued April 7, 2022 denying a timely filed

Petition for Rehearing issued by the Court of

Appeals for the Ninth Circuit is not reported but can

be located at United States v. Imhoff, 2022 U.S. App.

LEXIS 9353 (App D, infra). The Order denying

Petitioner’s Motion to Suppress Evidence issued by

the United States District Court for the District of

Montana on July 7, 2020 was not reported and not

available online (App. B, infra). The Order denying

Petitioner’s Supplemental Motion to Suppress

Evidence issued by the United States District Court

for the District of Montana, Billings Division on July

29, 2020 was not reported but can be located at

United States v. Imhoff, 2020 U.S. Dist. LEXIS

134707. (App. C, infra).

1

STATEMENT OF JURISDICTION

The date on which the Court of Appeal for the Ninth

Circuit decided the case was February 28, 2022. A

timely filed Petition for Rehearing was denied by the

Court of Appeals for the Ninth Circuit on April 7,

2022 and a copy of the order denying the rehearing

appears at Appendix C. The jurisdiction of this

Court is invoked under 28 U. S. C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE

CONSTITUTIONAL PROVISIONS

Petitioner asserts a violation of his Fourth

Amendment right to be free from unreasonable

search and seizure. The Fourth Amendment reads as

follows:

[T]he right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated, and

no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation,

and

particularly

describing the place to be searched,

and the persons or things to be seized.

U.S. Const. amend. IV.

STATEMENT OF THE CASE

On February 11, 2020 at approximately 10:26 AM

Montana State Highway Patrol Trooper Erick

2

Fetterhoff (“Trooper Fetterhoff”) pulled over

Petitioner Nicholas James Imhoff near Columbus,

Montana, for driving six miles over the speed limit.

Trooper Fetterhoff asked Petitioner a series of

questions unrelated to traffic safety or public safety

about Petitioner’s work history and travel. Trooper

Fetterhoff, requested dispatch perform a non-routine

criminal drug history on Imhoff. After issuing a

warning citation to Petitioner thirteen minutes into

the stop, Trooper Fetterhoff called dispatch for a

drug-sniffing dog after Petitioner declined to grant

consent to search. In doing so, Trooper Fetterhoff

transformed a routine traffic stop into a 26-minute

drug investigation. The Trooper testified his normal

traffic stops last ten to fifteen minutes. The traffic

stop was extended for another thirteen minutes after

the warning was issued.

When Trooper Fetterhoff initiated his investigation

of suspected drug activity, Trooper Fetterhoff knew

little more than Petitioner had rented a car from Las

Vegas, the car was due back in three days, and that

Imhoff was en route to North Dakota where he

worked. There were also fast food wrappers and

cigarettes on the floor of the rented minivan.

That said, the [District] Court notes

that it finds it somewhat concerning

that a police officer would be

confident—rather

than

merely

reasonably

suspicious—that

an

individual like Imhoff was violating

anything other than the traffic code.

Trooper Fetterhoff testified at the

3

suppression hearing that he knew he

was dealing with a drug distributer

when he saw a white minivan

traveling six miles over the speed limit

with the back windows vented. He

repeatedly testified to the immediacy

and strength of his conviction that

Imhoff was transporting drugs—when

he initially saw the van, when he

noticed that it was rented, and again

when he noticed gas station detritus.

Trooper Fetterhoff placed Petitioner in the front seat

of his patrol vehicle despite not having searched for

weapons or contraband. The trooper requested a

driver’s license check and a drug investigation check

on Petitioner after the Trooper ran the driver’s

license on his vehicle’s computer showing Petitioner

had a valid driver’s license.

During the suppression hearing on June 22, 2020,

Trooper Fetterhoff testified that once placed in

Petitioner in the front of the patrol car, Petitioner

was extremely nervous.

“Having viewed and

listened to the recordings available, the Court has

seen nothing to confirm the officers’ perceptions of

[Petitioner’s] nervousness. Although nervous,

evasive behavior is a pertinent factor in determining

reasonable suspicion, the Court is unconvinced that

[Petitioner] actually displayed such behavior.”

The Trooper noted only a day bag in the passenger

seat, but it was later confirmed the Trooper had

missed the suitcase in plain view in the back cargo

4

area of the minivan.

The Trooper disbelieved

Petitioner’s answer about working in the Bakken oil

fields and found his answers about housing

inconsistent as Petitioner initially said he had a

house then said he was staying with a friend. At the

time of the suppression hearing, it was confirmed

that Petitioner was truthful in his answers about

where he worked and lived. Petitioner was living in

company housing and had recently been hired at a

new company working the oil fields.

At the suppression hearing, the court found that “the

other factors available to Trooper Fetterhoff “would

likely not give rise to reasonable suspicion without

the rental contract.”

In its order denying the

supplemental motion to suppress the district court

found the trooper was not credible stating “[t]his

Court did not rely on [Trooper] Fetterhoff’s

credibility or [Petitioner]’s appearance in its prior

order” denying Appellant’s motion to suppress.

Trooper Fetterhoff advised Petitioner that he was

receiving a warning and was “completely free to

leave on that”. Although having just told Petitioner

he was completely free to leave, Trooper Fetterhoff

then told Petitioner that he was extending the traffic

stop beyond the initial reason for the stop. Despite

stating Petitioner was completely free to leave,

Trooper Fetterhoff read Petitioner his Miranda

rights and asked to search the vehicle. When

Petitioner declined, Trooper Fetterhoff walked

around the vehicle with a drug sniffing dog. On the

second pass, the dog alerted. Trooper Fetterhoff

called for a tow truck and sealed the vehicle with

5

evidence tape, while Petitioner was driven to a gas

station in Columbus, MT where he was released.

Trooper Fetterhoff applied for a search warrant and

eventually located approximately 78 pounds of what

was later confirmed to be methamphetamine.

The court issued its order denying Petitioner’s

motion to suppress on July 7, 2020. Petitioner was

given leave to seek additional evidence. Petitioner

filed a supplemental motion to suppress based on

additional evidence pertaining to Montana Highway

Patrol policies and procedures regarding traffic stops

and recording equipment. The court denied that

motion on July 29, 2020.

Petitioner entered his change of plea on September

9, 2020 where he changed his plea to guilty to 21

U.S.C. § 841(a)(1) Possession With Intent To

Distribute Methamphetamine and 18 U.S.C. § 2

Aiding and Abetting, but he reserved the right to

appeal the denial of his suppression motion. On

March 16, 2021, Petitioner was sentenced to 132

months in federal prison. Petitioner filed a timely

notice of appeal to the Court of Appeals for the Ninth

Circuit on March 18, 2021. On February 28, 2022,

following oral arguments, the Court of Appeals

issued a Memorandum affirming the denial of

Petitioner’s motion to suppress.

Petitioner filed a timely Petition for Rehearing and

Rehearing En Banc on March 14, 2022. That

Petition was denied on April 7, 2022 with the

mandate issuing on April 15, 2022.

6

REASONS FOR GRANTING THE PETITION

The Ninth Circuit has entered a decision in this case

that is in conflict with this Court’s decision in

Rodriguez v. United States, 575 U.S. 348, 354, 135 S.

Ct. 1609, 1614 (2015), the First Circuit in United

States v. Ramdihall, 859 F.3d 80, 89 (1st Cir. 2017),

and its own prior decision in United States v. Evans,

786 F.3d 779 (9th Cir. 2015). This is an issue of

great national importance.

Fourth Amendment

protections are not waived simply because a driver

chooses to drive a rental car. Allowing searches on

such an overwhelmingly broad basis would

undermine

all

prior

Fourth

Amendment

jurisprudence and render the requirement of

reasonable suspicion moot.

Jurists of reason would find it debatable whether

Petitioner’s Fourth Amendment rights were violated

when the District Court heavily relied on Petitioner

driving a rental car to determine whether the

Trooper had reasonable suspicion to prolong the

traffic stop after issuing Petitioner a written

warning. This case is a suitable vehicle for resolving

this issue. Unencumbered by claims of ineffective

assistance of counsel, or the obligation to follow the

highly deferential standard of the Antiterrorism and

Death Penalty Act (AEDPA), this case offers an

opportunity to clarify the standard of reasonable

suspicion in the context of prolonged automobile

detentions where use of a rental car is the stated

basis of officer’s reasonable suspicion.

7

At least four other Circuits have held that a longdistance, short-term journey in a rental car is

insufficient to justify prolonging a routine traffic

stop.

This Court currently holds that, as a general rule,

someone in otherwise lawful possession and control

of a rental car has a reasonable expectation of

privacy in it even if the rental agreement does not

list him or her as an authorized driver. Byrd v.

United States, 138 S. Ct. 1518, 1524 (2018). Much

as a driver does not give up their reasonable

expectation of privacy when driving a rental car, the

use of a rental car itself cannot be the basis for

reasonable suspicion.

This argument follows naturally from the logic of

Rodriguez, where this Court declined to approve of a

de minimis detention after the issuance of a warning

ticket, reasoning that the "[a]uthority for the seizure

. . . ends when tasks tied to the traffic infraction are-or reasonably should have been--completed."

Rodriguez v. United States, 575 U.S. 348, 354, 135 S.

Ct. 1609, 1614 (2015). In Rodriguez, a K-9 officer,

stopped petitioner Rodriguez for driving on a

highway shoulder, a violation of Nebraska law. After

the officer attended to everything relating to the

stop, including checking the driver's licenses of

Rodriguez and his passenger and issuing a warning

for the traffic offense, he asked Rodriguez for

permission to walk his dog around the vehicle. When

Rodriguez refused, the officer detained him until a

second officer arrived. The officer then retrieved his

dog, who alerted to the presence of drugs in the

8

vehicle.

The

ensuing

search

revealed

methamphetamine. Seven or eight minutes elapsed

from the time the officer issued the written warning

until the dog alerted. Rodriguez v. United States,

575 U.S. 348, 135 S. Ct. 1609 (2015). This Court

held Authority for the seizure ends when tasks tied

to the traffic infraction are--or reasonably should

have been--completed. Id.

Under the bright line drawn in Rodriguez, an

officer's choice is binary: either he has reasonable

suspicion the moment he hands the driver the

warning ticket, in which case he may prolong the

stop for a reasonable period to investigate; or he does

not have reasonable suspicion, in which case the

motorist is free to leave. But an officer who lacks

reasonable suspicion may not continue to detain a

motorist simply because, in the words of Trooper

Fetterhoff, “[w]e'll talk about other things and see if

any other indicators pop up of criminal activity.”

The Fourth Amendment to the United States

Constitution guarantees "[t]he right of the people to

be secure in their persons, house, papers, and effects,

against unreasonable searches and seizures." U.S.

Const. amend. IV. The Fourth Amendment requires

suppression of evidence that is the fruit of unlawful

police conduct. Wong Sun v. United States, 371 U.S.

471, 484, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

The Ninth Circuit in United States v. Evans reached

a completely contradictory holding to the case at bar

when it held that not allowing the defendant to leave

after completing the tasks necessary for a traffic stop

9

was a violation of the driver’s Fourth Amendment

rights. United States v. Evans, 786 F.3d 779 (9th

Cir. 2015) a law enforcement officer saw a defendant

commit a minor traffic violation and pulled him over.

Evans, 786 F.3d 782. The officer informed the

defendant that he was not going to write a ticket but

needed to run a check for outstanding warrants

before letting him go. Id. The officer ran a "records

check" on the vehicle, the defendant and a

passenger, all of which returned "clean." Id. at 783.

The officer then issued a warning ticket. Id. at 785.

Instead of allowing the defendant to leave, however,

the officer requested an ex-felon registration check

and learned that the defendant had a prior felony

arrest record. Evans at 783. After learning of the

felony convictions, the officer walked a drug dog

around the vehicle and discovered contraband.

Evans at 785. The district court granted a motion to

suppress, and the Government appealed the ruling.

The Ninth Circuit affirmed. Applying Rodriguez the

Ninth Circuit held that "by conducting an ex-felon

registration check and a dog sniff, both of which

were unrelated to the traffic violation," the officer

violated the Fourth Amendment, "unless there was

independent reasonable suspicion justifying each

prolongation." Evans at 787. The Ninth Circuit

remanded the case to the district court to determine

whether the officer had reasonable suspicion that

could justify the "dual delay" imposed by the ex-felon

registration check and the dog sniff. Evans at 789.

10

In this case, the trooper finished filling out

Petitioner’s warning card, returned his documents,

then told him he was free to leave since the trooper

determined Petitioner had a valid license, the rental

car was not stolen. Also, although he impermissibly

extended the traffic stop, the trooper learned the

Petitioner had no prior criminal history and no

history of drug offenses from the extensive, nonroutine criminal background check. The stop had

lasted thirteen minutes at that point when the

Trooper told Petitioner he was completely free to

leave, but the Trooper was keeping his rental car.

The Trooper decided he was keeping the vehicle

before the drug dog had even arrived on scene. All

objectively reasonable facts went in Petitioner’s

favor. There was no reasonable suspicion to hold

Petitioner another 13 minutes while the Trooper

waited for a drug dog and to conduct a search using

the drug dog. Trooper Fetterhoff made up his mind

and held the vehicle long before the dog arrived.

The standard applied, that of reasonable suspicion,

requires an officer to have “‘a particularized and

objective basis for suspecting the particular person

stopped’ of breaking the law.” Heien v. North

Carolina, 574 U.S. 54, 60, 135 S. Ct. 530 (2014)

(quoting Navarette v. California, 572 U.S. 393

(2013)).

Without independent reasonable suspicion, the

officer may only engage in tasks related to the traffic

stop such as “checking the driver’s license,

determining whether there are outstanding

warrants against the driver, and inspecting the

11

automobile’s registration and proof of insurance.”

Rodriguez v. United States, 575 U.S. 348, 349, 135 S.

Ct. 1609 (2015).

Prior to even stopping the vehicle for speeding a

minor amount over the posted speed limit, the

Trooper had decided the driver was engaged in drug

trafficking. A reasonable person would not believe

that a minivan traveling six miles over the speed

limit during the mid-morning hours on an interstate

is involved in drug trafficking making the trooper’s

search unreasonable under the Fourth Amendment.

CIRCUITS ARE SPLIT ON WHETHER USE OF A

RENTAL CAR CREATES REASONABLE

SUSPICION TO SEARCH A VEHICLE DURING A

ROUTINE TRAFFIC STOP

Several other Courts of Appeal have ruled on the

question and reached conflicting decisions resulting

in a nationwide Circuit split requiring this Court to

step in to resolve the split.

FIRST CIRCUIT

The First Circuit has taken a different route and

found that the rental car and state of cleanliness of

vehicle was relevant to the reasonable suspicion

determination. In United States v. Ramdihall, an

Ohio State Highway Patrol Trooper pulled over

Ramdihall for speeding 20 miles an hour over the

posted speed limit. United States v. Ramdihall, 859

F.3d 80, 89 (1st Cir. 2017). The defendant did not

challenge the reason for the stop, but rather the

12

search that came later. When the trooper asked to

see Ramdihall's license and registration, Ramdihall

opened the center console and then shut it "very

quickly," during which time the trooper saw "a

plastic baggie" inside. Ramdihall told him that the

bag contained tobacco. The trooper learned that the

car was a rental that had been leased by an absent

third party. Ramdihall was listed on the rental

agreement as an alternate driver. Martin also

learned that Ramdihall and Hillaire were driving to

Columbus from New York. Martin observed that

there was no visible luggage and that the car had "a

very clean compartment for people on the road for an

extensive period of time.” Ramdihall, 859 F.3d at 89.

Although the district court did not use the clean

compartment and lack of luggage as a ground for

denying the motion to suppress, it did rely on it as

part of its finding the defendant’s explanation as

“thin or dubious”. Id. at 93. The district did rely on

the car being a rental as a grounds for reasonable

suspicion and the First Circuit agreed. Id. at 93.

THIRD CIRCUIT

In United States v. Hurtt, 31 F.4th 152 (3d Cir.

2022), while officer one conducted the on-mission

field sobriety test, officer two entered the truck and

kneeled on the front seat, and then officer one

stopped the sobriety test to ensure officer two's

safety. Because officer two created a safety concern

by going off-mission, officers could not rely on that

concern to justify detouring from original purpose of

the stop. Because this off-mission conduct was

13

without reasonable suspicion and extended the

traffic stop, the court held it was unlawful and the

subsequent search violated defendant's Fourth

Amendment rights. -Whether or not officer one's offmission activity caused only de minimis delay of the

stop was irrelevant to the court's holding that

pausing the sobriety inquiry to ensure officer two's

safety after he climbed into the truck violated

defendant's Fourth Amendment rights.

United

States v. Hurtt, 31 F.4th 152, 155 (3d Cir. 2022).

The Third Circuit noted “fast food wrappers" have

become ubiquitous in modern interstate travel and

do not serve to separate the suspicious from the

innocent traveler.

But the Fourth Amendment does not

allow random searches of persons

travelling the nation's highways. The

factors the district court listed, like

those to which the police testified, are

simply too ordinary--too much like the

factors in Reid . [Reid v. Georgia, 448

U.S. 438 (1980) (per curiam)] and not

enough like those in Sokolow.

[United States v. Sokolow, 490 U.S. 1,

9, 104 L. Ed. 2d 1, 109 S. Ct. 1581

(1989)]. As we noted above, reasonable

suspicion

cannot

include

"circumstances [which] describe a very

large category of presumably innocent

travelers, who would [then] be subject

to virtually random seizures." Reid,

448 U.S. at 441.

14

Karnes v. Skrutski, 62 F.3d 485, 495-6 (3d Cir.

1995).

FOURTH CIRCUIT

In United States v. Williams, an officer stopped a

couple in North Carolina en route to Charlotte on

day three of a three-day car rental that originated

and ended in New Jersey—over 600 miles away.

United States v. Williams, 808 F.3d 238 (4th Cir.

2015). When asked about their travel plans, the

couple stated they planned to renew the rental car

upon arriving in Charlotte. Id. at 242-43. The

district court held that the short-duration, longdistance trip in a rental car coupled with the

defendants’ travel through a “known drug corridor,”

and the driver’s dual residency in New York and

New Jersey provided reasonable suspicion for a dog

sniff. Id. at 243.

The Fourth Circuit reversed holding the district

court's four factors, including (1) appellant was

traveling in a rental car, (2) appellant was traveling

on a known drug corridor at 12:37 a.m., (3)

appellant's stated travel plans were inconsistent

with, and would likely exceed, the due date for

return of the rental car, and (4) appellant was

unable to provide a permanent home address in New

York even though he claimed to live there at least

part-time and had a New York driver's license, failed

to eliminate a substantial portion of innocent

travelers and thus failed to establish reasonable

suspicion

under

the

Fourth

Amendment.

15

United States v. Williams, 808 F.3d 238, 240 (4th

Cir. 2015).

FIFTH CIRCUIT

In United States v. Jenson, 462 F.3d 399 (5th Cir.

2006), the court asked whether the officer's actions

after the license check came back clean were

reasonably related to the circumstances justifying

the stop for speeding. - The court held that (1) the

inconsistent answers could not be considered

because they were given after the purpose of the stop

was completed; (2) although it took defendant 30 to

60 seconds to pull over, such did not amount to

reasonable suspicion so as to justify the prolonged

detention, as such delay could be attributed to a

driver trying to identify whether he was being pulled

over. The court here noted that the government did

not present adequate evidence of a nexus between

Jenson's allegedly suspicious behavior and any

criminal activity. The officer also testified at the

district court suppression hearing that, while pulling

over the car, he thought the passengers were acting

suspicious. The Fifth Circuit held this did not

amount to "articulable suspicion that a person has or

is about to commit a crime" as opposed to a mere

hunch. Jenson, 426 F.3d at 405 (quoting Florida v.

Royer, 460 U.S. 491, 498. 103 S. Ct. 1319 (1983)).

In United States v. Macias, 658 F.3d 509 (5th Cir.

2011), the Fifth Circuit Court of Appeals reversed

and vacated the judgment of conviction after finding

the highway trooper unconstitutionally prolonged

the defendant's detention for a traffic violation of

16

failing to wear a seatbelt by asking irrelevant and

unrelated questions without reasonable suspicion of

criminal

activity.

The

court

rejected

the

government's claim that the officer had reasonable

suspicion to prolong the detention based on Macias's

"extreme signs of nervousness" that were manifested

through his avoidance of eye contact and failure to

place his truck in park. Id. at 519. The court

suppressed all evidence of the subsequent search

that turned up a firearm. United States v. Macias,

658 F.3d 509, 512 (5th Cir. 2011).

SEVENTH CIRCUIT

In United States v. Rodriguez-Escalera, 884 F.3d

661 (7th Cir. 2018), the officer testified to the factors

that triggered his suspicion: 1) when he first

approached the defendant's front passenger window,

he smelled a "very pungent" scent of air fresheners

and noticed "several" air vent clip-in air fresheners

which he had been trained to associate with

narcotics traffickers, 2) the couple's origin city was

Los Angeles which, he explained is known as a major

distribution center for narcotics trafficking, 3) the codefendant did not initially look up at him but was

distracted by a video game on his phone, 4) the codefendant seemed nervous when he asked her

questions in his squad car, 5) their conflicting travel

plans made him think they were not making "just an

ordinary trip." Id. at 666.

The Seventh Circuit agreed with the district court's

conclusion that the officer’s stated reasons did not

17

provide reasonable suspicion sufficient to prolong the

detention in that case.

EIGHTH CIRCUIT

In United States v. Beck, after observing a driver

following another too closely, the officer approached

the automobile's passenger side and asked the

defendant Beck, for his license and rental car

agreement. It was not explained how the officer

knew it was a rental car during the suppression

hearing. United States v. Beck, 140 F.3d 1129 (8th

Cir. 1998)

The officer explained to Beck the reason for his being

stopped. While talking to Beck, the officer observed

that Beck appeared nervous since his hands were

shaking and he was looking around. He also saw fast

food trash on the front passenger floorboard and

briefcase in the backseat. It did not appear the

driver was under the influence of any illegal

substance.

The officer ran a check on Beck's driver's license and

criminal history. These inquiries revealed that

Beck's driver's license was valid, and that he had no

criminal history. The officer told the defendant he

was free to leave, then turned back and asked if

there were any guns or drugs in the car. The driver

responded “no” and the officer decided to search

anyway.

The government argued reasonable suspicion for

Beck's renewed detention arose from the following

18

seven circumstances: (1) Beck was driving a rental

car which had been rented by an absent third party;

(2) the Buick was licensed in California; (3) there

was fast food trash on the passenger side floorboard;

(4) no visible luggage in the passenger compartment

of the automobile; (5) Beck's nervous demeanor; (6)

Beck's trip from a drug source state to a drug

demand state; and (7) the officer’s disbelief of Beck's

explanation for the trip.

“We need not tarry long with the government's first

factor. We hold that there was nothing inherently

suspicious in Beck's use of a rental vehicle, even

though rented by a third person, to travel. See Wood,

106 F.3d at 947 (finding that the defendant's use of a

rental car was not inherently suspicious).”

United States v. Beck, 140 F.3d 1129, 1137 (8th Cir.

1998)

TENTH CIRCUIT

“[T]he mere presence of fast-food wrappers in the

Buick is entirely consistent with innocent travel[.]”);

United States v. Wood, 106 F.3d 942, 947 (10th Cir.

1997) (holding that the suspicion associated with the

possession of fast food trash “is virtually

nonexistent”). Some items motorists might possess

must be "outrightly dismissed as so innocent or

susceptible to varying interpretations as to be

innocuous," Wood, 106 F.3d at 946, United States v.

Bradford, 423 F.3d 1149, 1157 (10th Cir. 2005).

Further, rental car contracts can be easily extended

or modified. United States v. Santos, 403 F.3d 1120,

19

1129 (10th Cir. 2005). Santos held that “[c]ommon

experience suggests that it is not unusual for a

driver to rent a car for a certain period, and then to

extend the rental without incurring a penalty or

paying a higher rate.”

Similarly, in United States v. Lopez, an officer

stopped a pair of women near Wichita, Kansas who

were en route to “Kansas City or Nebraska” from

California. United States v. Lopez, 849 F.3d 921,

923-24 (10th Cir. 1997).. The women had only a day

left on their two-day car rental that originated and

ended in El Monte, California, 1,500 miles away. Id.

at 924. The district court held that the defendants’

uncertainty about their destination, quick roundtrip

route, and apprehension when the officer glanced at

their backseat provided reasonable suspicion for a

dog sniff. Id. at 924-25.

The Tenth Circuit reversed by rejecting reliance on

short-duration, long-distance car rentals without

more holding that “we have generally been reluctant

to give weight in the reasonable-suspicion analysis

to unusual travel purposes, at least absent lies,

inconsistencies, or the like.” Id. at 927.

ELEVENTH CIRCUIT

In United States v. Boyce, an officer in Georgia

pulled over a driver for driving ten miles per hour

under the speed limit and weaving on the highway.

United States v. Boyce, 351 F.3d 1102, 1104 (11th

Cir. 2003). The driver’s rental car contract stated

that the rental contract originated in New Jersey

20

and the driver indicated that he planned to drive to

Fort Lauderdale to visit an ex-girlfriend before

returning to New Jersey, over 1,000 miles away, the

following Wednesday. Id. The driver’s stated travel

plans were inconsistent with the rental car contract;

he planned to return the car two days late. Id. The

district court found that the driver’s route through a

known drug corridor, short duration long-distance

journey, and inconsistent rental car contract created

reasonable suspicion. Id. at 1107-09. The Eleventh

Circuit reversed, holding that those facts would

apply to “a considerable number of those traveling

for perfectly legitimate purposes” and thus could not

provide reasonable suspicion. Id. at 1109.

The Eleventh Circuit reaffirmed Boyce by concluding

that driving rental car on known drug corridor and

planning to return car two days late was insufficient

for reasonable suspicion.

United States v.

Hernandez, 418 F.3d 1206, 1211 (11th Cir. 2005)

(cert. denied 549 U.S. 889) citing United States v.

Boyce, 351 F.3d 1102 (11th Cir. 2003).

CONCLUSION

On nearly identical facts, the Third, Fourth, Fifth,

Seventh, Eighth, Tenth, and Eleventh Circuits have

all held that car rental contracts indicating shortduration, long-distance travel were not sufficiently

probative of drug couriering to justify prolonging a

traffic stop. However, the First held it is indicative

of drug trafficking. The Ninth Circuit, in Evans,

reached an opposite holding to the one issued in this

case.

21

“Because the question is close, we conclude the court

did not commit clear error.” United States v. Jenson,

462 F.3d 399, 407 (5th Cir. 2006). “And though the

question may be close, Ramdihall does not offer a

persuasive account of why, in combination, the facts

available in the record render such a conclusion

mistaken.” United States v. Ramdihall, 859 F.3d 80,

92 (1st Cir. 2017). As with the district court in this

case, other courts have found the issue to be a close

call.

Jenson and Ramdihall reached opposite

decisions on the same issue. The issue of rental cars

creating reasonable suspicion requires guidance

from this Court.

The district court in this case erred by placing

outsized emphasis on the rental contract in its

reasonable suspicion analysis. The district court

found that the rental contract was “[f]ar and away,

the most significant factor.” In particular, the

district court held that the five-day rental car

contract showed a short trip that was “consistent”

with drug couriering. The district court determined

that “other facts available to [Trooper Fetterhoff] . . .

would likely not give rise to reasonable suspicion

without the rental contract.”

Using the rental contract as the crux of the decision

allows cars to be stopped and searched simply

because they are rental cars in conflict with the

Fourth Amendment. The Ninth Circuit continued

the conflict by affirming the denial of the motion to

suppress.

22

Given the number of travelers on the nation’s

highway and interstates who travel by rental car,

this is an important matter that has created a

Circuit split requiring this Court’s determination on

whether the use of a rental car is sufficient for

reasonable suspicion.

WHEREFORE, Petitioner respectfully requests this

Court grant a petition for certiorari.

Respectfully submitted,

SHANNON M. DORVALL

12424 Wilshire Blvd., Ste. 700

Los Angeles, CA 90025

Telephone: (310) 315-1100

shannondorvall@criminalattorney.com

23

APPENDIX

A. Court of Appeals for the Ninth Circuit

Affirming Denial of Motion to Suppress

Evidence .......................................................... A-2

B. United States District Court for

The District of Montana, Billings Divisions

Order Denying Supplemental Motion to

Suppress Evidence .......................................... A-7

C. United States District Court for

The District of Montana, Billings Division

Order Denying Motion to

Suppress Evidence .......................................... A-12

D. Court of Appeal for the Ninth Circuit

Order Denying Petition for Rehearing and

Hearing En Banc ............................................ A-25

E. Fourth Amendment of U.S. Constitution ...... A-27

A-1

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT – No. 21-30077

12381291

[DATE STAMP]

FILED

FEBUARY 28, 2022

Molly C. Dwyer, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff and Appellee,

v.

NICHOLAS JAMES IMHOFF,

Defendant-Appellant.

Nos. 21-30077 D.C.

Nos. 1:20-cr-00024-DLC-1

1:20-cr-00024-DLC

MEMORANDUM*

___________________

* This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

A-2

Appeals from the United States District Court

for the District of Montana,

Dana L. Christensen, District Judge, Presiding

Argued and Submitted February 15, 2022

San Francisco, California

Before: GOULD and RAWLINSON, Circuit Judges,

and ADELMAN,** District Judge

Nicholas James Imhoff (Imhoff) appeals his

conviction for possession of fifty grams or more of

methamphetamine with intent to distribute. Imhoff

contends that the district Court erred in denying his

motion to suppress methamphetamine discovered in

his rental vehicle after a canine sniff conducted

during a traffic stop in Montana.

We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm the district court’s denial of Imhoff’s motion to

suppress.

During the suppression hearing, the trooper testified

that Imhoff provided a rental contract indicating

that the vehicle was rented in Las Vegas, Nevada,

two days prior to the traffic stop, for a five-day

period. Imhoff informed the trooper that he was

traveling to the oil fields in North Dakota for work,

which the trooper found inconsistent with the fiveday rental agreement.

________________________

* * The Honorable Lynn S. Adelman, United States District

Judge for the Eastern District of Wisconsin, sitting by

designation.

A-3

Imhoff informed the trooper that he was traveling to

the oil fields in North Dakota for work, which the

trooper found inconsistent with the five-day rental

agreement. The trooper also observed that the

vehicle contained “a trash bag,” “a small day pack,”

“cigarettes, coffee drinks, [and] fast-food wrappers,”

but “no visible luggage.” These observations

generated a reasonable suspicion that Imhoff was

engaged in narcotics trafficking rather than

traveling for work.

The trooper further testified that, due to indications

of “possible criminal drug activity,” he asked

dispatch for a criminal history check “while [he was]

filling out the [traffic] warning card,” and “[a]t no

point did any detention last longer than it took to fill

out the warning card.” The trooper also related that

Imhoff “could never specifically say where he was

going,” and Imhoff “changed his story three different

times” concerning his residence in North Dakota.

Based on the totality of circumstances, the trooper

had reasonable suspicion to further investigate

Imhoff’s potential involvement in drug trafficking

and did not impermissibly prolong the traffic stop.

See United States v. Raygoza-Garcia, 902 F.3d 994,

1000 (9th Cir. 2018) (explaining that “we must look

at the totality of the circumstances,” and that

reasonable suspicion “is not a particularly high

threshold to reach”) (citations and internal quotation

marks omitted). The trooper requested a criminal

history check and posed questions to Imhoff about

his destination and background based on his

A-4

suspicions that Imhoff was engaged in narcotics

trafficking due to the items in the van, and

discrepancies between the work schedules in the

North Dakota oil fields and the rental agreement,

viewed in light of the trooper’s extensive experience

and training in drug interdiction. See United States

v. Gorman, 859 F.3d 706, 715 (9th Cir. 2017)

(articulating that “[t]he Supreme Court has

indicated that within the time reasonably required

to complete the stop’s mission, the Fourth

Amendment may tolerate investigations that are

unrelated to the purpose of the stop and that fall

outside the scope of that mission”)(citation and

internal quotation marks omitted) (emphasis in the

original); see also Raygoza-Garcia, 902 F.3d at 999

(recognizing the deference given to “inferences

drawn by . . . officers on the scene”); United States v.

Arvizu, 534 U.S. 266, 273 (2002) (“allow[ing] officers

to draw on their own experience and specialized

training”).

The district court properly concluded that, under the

totality of circumstances, the trooper had

independent reasonable suspicion to conduct a

canine sniff of the vehicle based on the discrepancies

observed by the trooper indicating that Imhoff “was

making a quick drug run,” including Imhoff’s

inconsistent statements concerning his residence,

and his inability to provide a specific address or zip

code in North Dakota. See United States v. ValdesVega, 738 F.3d 1074, 1078-79 (9th Cir. 2013) (en

banc) (stating that “[a] determination that

reasonable suspicion exists need not rule out the

A-5

possibility of innocent conduct”) (citation and

alterations omitted).

Relying on United States v. Evans, 786 F.3d 779 (9th

Cir. 2015), Imhoff maintains that remand to the

district court is warranted for the district court to

more fully address the reasonable suspicion

supporting the trooper’s questions and records check.

However, after conducting an extensive hearing on

Imhoff’s motion to suppress, the district court

sufficiently developed “the findings of historical fact

and the inferences drawn from those facts critical to

resolving the parties’ dispute concerning reasonable

suspicion.” Id. at 788 (internal quotation marks

omitted). No remand is required. See Id. at 789.

AFFIRMED.

A-6

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

UNITED STATES OF AMERICA, Plaintiff,

vs.

NICHOLAS JAMES IMHOFF, Defendant.

CR 20-24-BLG-DLC

ORDER

Before the Court is Defendant Nicholas James

Imhoff’s Supplemental Motion to Suppress. (Doc.

41.) The Court previously denied Imhoff’s first

motion to suppress (Doc. 38) following an evidentiary

hearing, but it granted Imhoff leave to file a

supplemental motion provided that the motion

raised novel and relevant issues (39). Assuming that

the supplemental motion meets these criteria, the

Court nonetheless denies the motion.

Imhoff’s

constitutional rights were not violated when Trooper

Erick Fetterhoff extended a traffic stop to conduct a

dog sniff of Imhoff’s rental vehicle.

To avoid unnecessarily duplicating efforts, the Court

incorporates the factual findings, legal standards,

and analysis set forth in its Order of July 9, 2020.

(Doc. 41.) Now, as then, the Court finds that

A-7

Trooper Fetterhoff “ha[d] a ‘particularized and

objective basis’ for suspecting legal wrongdoing” such

that Imhoff’s continued detention did not violate his

constitutional rights. United States v. Arvizu, 534

U.S. 266, 273 (2002) (quoting United States v.

Cortez, 449 U.S. 411, 417–418 (1981)).

Imhoff submits, and the Court considers, three

additional pieces of evidence: (1) Trooper Fetterhoff’s

police report, which the parties failed to provide

prior to the hearing (Doc. 41-1); (2) the Montana

Highway Patrol’s policy regarding video and audio

recordings; and (3) the Montana Highway Patrol’s

general code of conduct. These documents do not

alter the analysis set forth in the order denying

Imhoff’s first suppression motion.

I. Trooper Fetterhoff’s Police Report

Imhoff argues that the police report describing the

incident proves that Trooper Fetterhoff did not

extend the stop on the basis of the five-day, roundtrip rental contract, which the Court previously

described as “[f]ar and away, the most significant

factor” in its reasonable suspicion determination.

(Doc. 28 at 10.) The Court disagrees for two reasons.

First, the report demonstrates that Trooper

Fetterhoff did, in fact, rely on the rental contract.

He wrote:

I was provided a rental contract for the

vehicle. The vehicle was a 5 day rental from

Las Vegas, from which Imhoff stated he was

A-8

coming . . . . Imhoff stated he was ‘going back

to work in North Dakota, working in the

oilfield.’ From my experience, previous traffic

stops of oilfield workers, and knowledge of the

oilfield, a five day rental is not consistent with

normal shift operation in the oilfield.

(Doc. 41-1 at 2.)

Although Fetterhoff did not

explicitly mention that the vehicle was due back in

Las Vegas at the end of the rental term, he certainly

suggested as much, as Fetterhoff noted the

inconsistency between the contract and Imhoff’s

stated intention to stay in North Dakota for work.

The Court therefore rejects Imhoff’s contention that

“the rental contract return date factor was created

by counsel for the Government in the briefing.”

(Doc. 41 at 3.)

Second, the reasonable suspicion test is not overly

concerned with Trooper Fetterhoff’s subjective

thought process. “The principal components of a

determination of reasonable suspicion . . . will be the

events which occurred leading up to the stop . . . ,

and then the decision whether these historical facts,

viewed from the standpoint of an objectively

reasonable police officer, amount to reasonable

suspicion . . . .” Ornelas v. United States, 517 U.S.

690, 696 (1996). Here, the five-day, round-trip

rental contract is a “historical fact[],” which, coupled

with the other facts known to Fetterhoff at the time

of the stop, would suggest to an “objectively

reasonable police officer” that the driver of the

vehicle was acting as a courier. Id.

A-9

II. Video/Audio Recording Policy

Imhoff next argues that Trooper Fetterhoff was not

in compliance with the Montana Highway Patrol’s

video/audio recording policy because his interior

camera was not functional. Although the Court

agrees that police officers should record their official

interactions with members of the public, the policy

does

not

affect

its

reasonable

suspicion

determination.

The Court did not rely on

Fetterhoff’s credibility or Imhoff’s appearance in its

prior order. Thus, even assuming that Fetterhoff

was out of compliance with the policy,

noncompliance would not translate to a finding that

the stop was extended in violation of Imhoff’s Fourth

Amendment rights.

III. Code of Conduct

Finally, Imhoff argues that Trooper Fetterhoff

violated the Montana Highway Patrol’s code of

conduct by failing to keep his interior camera

“serviceable.” (Doc. 41 at 5 (quoting Doc. 41-3 at 5).

Again, even assuming that Fetterhoff violated policy,

any such violation would not bear on the sole

relevant question of whether reasonable suspicion

supported Imhoff’s extended detention.

Having considered the argument and evidence

supporting Imhoff’s supplemental motion to

suppress, the Court finds again that no Fourth

Amendment violation occurred.

A-10

Accordingly, IT IS ORDERED that the Defendant’s

Supplemental Motion to Suppress (Doc. 41) is

DENIED.

DATED this 29th day of July, 2020.

Dana L. Christensen, District Judge

United States District Court

A-11

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BILLINGS DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

NICHOLAS JAMES IMHOFF,

Defendant.

ORDER

CR20-24-BLG-DLC

Before the Court is Defendant Nicholas James

Imhoff’s Motion to Suppress. (Doc. 24.) Imhoff

contends that his constitutional rights were violated

when Montana Highway Patrol Trooper Erick

Fetterhoff extended a traffic stop for the purpose of

conducting a dog sniff. Following the sniff, Fetterhoff

applied for and received a search warrant, the

execution of which yielded 78 pounds of

methamphetamine. Imhoff asks the Court to

suppress the fruits of the search on the grounds that

the warrant application depended upon a dog sniff

conducted in violation of Imhoff’s Fourth

Amendment right to freedom from unreasonable

seizures.

A-12

The Court held a hearing on the motion on June

22,2020, after which it ordered the issuance of a

subpoena for more evidence and allowed Imhoff to

supplement his argument for suppression. (Doc. 36.)

Imhoff did not file a notice of intent to supplement,

and the matter has been fully briefed and submitted.

Although this is a fairly close case, the Court now

denies the motion, finding that Trooper Fetterhoff

“ha[d] a ‘particularized and objective basis’ for

suspecting legal wrongdoing” such that Imhoff’s

continued detention did not violate his constitutional

rights. United States v. Arvizu, 534 U.S. 266, 273

(2002) (quoting United States v. Cortez, 449 U.S.

411, 417-A18 (1981)).

Background 1

Trooper Erick Fetterhoff is a member of the

Montana Highway Patrol’s drug interdiction team,

which has as its mission finding individuals involved

in drug distribution. Fetterhoff has been a police

officer for 16 years, during which time he has

received hundreds of hours of drug interdiction

training. He, along with other members of the team,

monitors 1-90 and 1-94, which run east to west

through Montana. These interstates are far and

away the fastest routes through a vast state. and

they are heavily used by long-haul truck drivers,

tourists, Montanans, and drug traffickers. It is, of

The Court’s recitation of the facts derives from the testimony

at the suppression hearing and the Court’s own review of the

audio- and video recordings of the traffic stop.

1

A-13

course, the lattermost category with

Fetterhoff and his colleagues are concerned.

which

On February 11, 2020, Trooper Fetterhoff’s interest

was piqued by a white minivan heading east across

1-90 at 86 miles per hour, six miles over the speed

limit. Especially suspicious, he thought, were the

back windows of the van, which were vented despite

near-freezing temperatures; Fetterhoff surmised

that the driver of the vehicle may be attempting to

air out a load of marijuana. Fetterhoff, who had been

traveling west, turned around and caught up to the

Dodge Grand Caravan. Whistling to himself,

Fetterhoff followed the vehicle for several miles-presumably to allow the driver an opportunity to

make a graver driving error-- before flipping on his

lights and siren to effect a traffic stop.

Driving the white minivan was Defendant Nicholas

James Imhoff, a Floridian with years of experience

working in North Dakota’s Bakken oil fields. Imhoff

had rented the minivan in Las Vegas on February

9th, and the vehicle was due back in Vegas on the

14th. The interior of the minivan bore evidence of a

hard-driving, solitary road trip—the floor was

littered with cigarettes, empty coffee and energy

drink containers, and junk food wrappers. When

Imhoff pulled over. Fetterhoff saw a day pack on the

front passenger seat and a trash bag in the third row

but no other luggage. Because he did not detect an

odor from the vehicle. Trooper Fetterhoff no longer

believed that the van was carrying marijuana. But

Fetterhoff continued to think that Imhoff was

involved in drug trafficking. Noticing that the

A-14

vehicle was rented, Fetterhoff asked Imhoff for the

vehicle’s rental contract, which showed that Imhoff

was on day two of a five-day round-trip rental out of

Las Vegas. If the white minivan with vented

windows had piqued Fetterhoff’s interest, he found

the rental contract and appearance of the vehicle to

reinforce his instincts.

Trooper Fetterhoff brought Imhoff back to his patrol

car with him, which according to his testimony, is

consistent with his regular practice. As he checked

the validity of Imhoff’s license, Fetterhoff asked a

series of questions regarding Imhoff’s travel plans

and history. Imhoff explained that he was returning

to the Bakken for work after a quick trip to Caesar’s

Palace with a friend. Imhoff initially said that he

had few personal items with him because he had a

house in North Dakota, but he later stated that he

had only a room in a friend’s house. Fetterhoff found

this inconsistency was not only suspicious but

deceitful. Further, Imhoff either could not or refused

to provide his friend’s name or an address er even a

valid zip code—of the place he’d be living.

Trooper Fetterhoff recognized that Imhoff had not

been speeding by any significant measure, and he

told Imhoff that he would not be ticketed but would

only receive a warning. In Fetterhoff’s eyes, Imhoff

did not sufficiently demonstrate the appropriate

reaction of relief. Rather, Imhoff remained nervous

so nervous, according to Fetterhoff, that his heart

could be seen beating through his camouflage shirt

as the officer asked further questions about Imhoff’s

plans in North Dakota.

A-15

After giving Imhoff a written warning, Trooper

Fetterhoff recognized that the traffic stop itself was

complete. However, he believed that he now had

sufficiently compelling reasons to, as he put it,

“deploy his K9 partner,” Shakie. At this time,

Fetterhoff Mirandized Imhoff and informed him that

he was free to leave (just not in the rental van).

Another officer. Trooper John Metcalfe, had already

arrived on the scene, and Metcalfe and Imhoff sat

together in Metcalfe’s vehicle while Fetterhoff and

Shakie circled the van, approximately 25 minutes

into the traffic stop. Like his colleague, Metcalfe

testified that Imhoff was visibly nervous and that his

heartbeat was visible through his shirt.

Shakie is trained to detect the odors of marijuana,

methamphetamine, cocaine, and heroin, and he

displayed behavior that signaled to Fetterhoff that

he had, in fact, detected one of these substances.

Twenty-six minutes after he was pulled over, Imhoff

was asked whether he would like to wait in police

custody while Fetterhoff applied for a warrant to

search the vehicle. He declined. Trooper Metcalfe

brought Imhoff into a nearby truck stop just off the

interstate in Columbus, Montana. As he dropped

Imhoff off, Metcalfe thanked him for his patience

and calm.

While Imhoff waited in Columbus, Fetterhoff applied

for and received a search warrant. Inside the vehicle,

vacuum sealed, wrapped in garbage bags, and

secreted under the stowable second-row seats, was

approximately 78 pounds of methamphetamine.

A-16

DISCUSSION

“A routine traffic stop ... is a relatively brief

encounter and ‘is more analogous to a so-called

“Terry stop” than to a formal arrest. Knowles v.

Iowa, 999 525 U.S. 113, 117 (1998) {quoting

Berkemer v, McCarty, 468 U.S. 420, 439 (1984)

(ellipses removed)). But “[t]he scope of the detention

must be carefully tailored to its underlying

justification.” Florida v. Royer, 460 U.S. 491, 500

(1983). Thus, [a] seizure that is lawful at its

inception can violate the Fourth Amendment if its

manner of execution unreasonably infringes

interests protected by the Constitution.” Illinois v.

Caballes, 543 U.S. 405, 407 (2005).

If there had been a question regarding whether a

dog sniff falls within the scope of a traffic stop as a

matter of law, it was definitively resolved in

Rodriguez. [T]he Fourth Amendment tolerate[s]

certain unrelated investigations that [do] not

lengthen the roadside detention,” but “[a] dog sniff…

is not an ordinary incident of a traffic stop,” and it

“is not fairly characterized as part of the officer’s

traffic mission. Rodriguez, 575 U.S. at 354, 356.

Where an investigation is no longer part of the stop’s

‘mission. 999 United States v. Landeros, 913 F.3d

862, 868 (9th Cir. 2019), the stop may not be

prolonged without “a particularized and objective

basis for suspecting the particular person stopped of

criminal activity,” Cortez, 449 U.S. at 417-18.

A-17

Here, Imhoff does not dispute the legitimacy of the

initial stop but only the dog sniff. “[T]he tolerable

duration of police inquiries in the traffic-stop context

is cabined by that context; officers may, without

further grounds for suspicion, only address the

traffic violation that warranted the stop[ ] and

attend to related safety concerns.” Rodriguez, 575

U.S. at 354. “Authority for the seizure thus ends

when tasks tied to the traffic infraction are—or

reasonably should have been completed.” Id. While

an officer “may conduct certain unrelated checks

during an otherwise lawful traffic stop ... he may not

do so in a way that prolongs the stop. absent the

reasonable suspicion ordinarily demanded to justify

detaining an individual. Id. at 355. The question the

Court must answer is whether the extension of the

traffic stop was justified under the circumstances

known to Trooper Fetterhoff at the time.

The standard applied, that of reasonable suspicion,

requires an officer to have “‘a particularized and

objective basis for suspecting the particular person

stopped’ of breaking the law.” Heien v. North

Carolina, 574 U.S. 54, 60 (2014) (quoting Prado

Navarette v. California, 572 U.S. 393, 396 (2013)). It

“is not a particularly high threshold to reach,”

United States v. Valdes-Vega, 738 F.3d 1074, 1078

(9th Cir. 2013), but rather a “commonsense,

nontechnical conception[] that deal[s] with ‘the

factual and practical considerations of everyday life

on which reasonable and prudent men, not legal

technicians, act. Ornelas v. United States, 517 U.S.

690, 695 (1996) (quoting Illinois v. Gates, 462 U.S.

213, 231 (1983)). The test is one of the “totality of the

A-18

circumstances,” and, while an officer may not rely on

a “mere hunch,” she may “draw on [her] own

experience and specialized training to make

inferences from and deductions about the cumulative

information available . . . that ‘might well elude an

untrained person. Arvizu, 534 U.S. at 273 74

(quoting Cortez, 449 U.S. at 418).

“A determination that reasonable suspicion exists . ..

need not rule out the possibility of innocent conduct.

Arvizu, 534 U.S. at 111-, see also United States v.

Evans, 786 F.3d 779, 788 (9th Cir. 2015). Even

where all considerations are susceptible of innocent

explanation,” they may nonetheless add up to

reasonable suspicion. Arvizu, 534 U.S. at 111.

However, those potentially innocent facts must,

taken together, point to the specific individual’s

involvement in a specific criminal activity. See

United States v. Montero-Camargo, 208 F.3d 1122,

1129 (9th Cir. 2000) (en banc) (“[Reasonable

suspicion] exists when an officer is aware of specific,

articulable facts which, when considered with

objective and reasonable inferences, form a basis for

particularized suspicion.”).

At the suppression hearing, Trooper Fetterhoff

articulated several facts which, taken together, led

him to believe that Imhoff was transporting drugs:

(1) the rented minivan; (2) the vented back windows;

(3) Imhoff s route from a high-supply area, Las

Vegas, to a high-demand area, the Bakken; (4)

cigarettes and food packaging littering the front

seat; (5) the lack of luggage; (6) Imhoff s inability to

give an address in North Dakota; (7) the 5-day,

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round-trip rental contract; and (8) Imhoff s visible

nervousness.

The Court finds that some of these facts cannot

contribute to particularized suspicion. First, Trooper

Fetterhoff testified that he detected no odor from the

van and that his initial suspicion regarding the

vented windows was therefore immediately

dispelled. Absent any explanation of why vented

windows are consistent with trafficking non-odorous

drugs, the Court cannot see why this fact matters.

Rather, the vented windows were consistent with

Imhoff smoking cigarettes in the rental van, which

may not be innocent in the eyes of the rental

company but is nonetheless not illegal. 2

Second, while the Court believes that Troopers

Fetterhoff and Metcalfe perceived Imhoff as nervous

nr, at minimum, honestly believed after the fact that

he appeared nervous at the time of the stop—it is

not convinced that Imhoff s demeanor would suggest

to the reasonable, well-trained officer that he was

Imhoff also argues that this fact is irrelevant because it does

not appear in Trooper Fetterhoff’s report. Setting aside the fact

that neither party has filed the police report even after the

Court asked about it repeatedly during the hearing,

particularized suspicion is an objective standard, and the Court

is therefore unconcerned with what facts Fetterhoff

subjectively relied upon in effecting and prolonging the stop.

See, e.g., Ornelas, 517 U.S. at 696 (“The principal components

of a determination of. . . probable cause will be the events

which occurred leading up to the stop . . ., and then the decision

whether these historical facts, viewed from the standpoint of an

objectively reasonable police officer, amount to reasonable

suspicion . . .”).

2

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dealing drugs. Having viewed and listened to the

recordings available, the Court has seen nothing to

confirm the officers’ perceptions of Imhoff s

nervousness. Although nervous, evasive behavior is

a pertinent factor in determining reasonable

suspicion,” the Court is unconvinced that Imhoff

actually displayed such behavior. Illinois V.

Wardlaw, 528 U.S. 119, 124 (2000). What is more,

any number of innocent people would be intimidated

(or frightened) if asked to sit in a police vehicle.

However, the remaining facts would lead “an

objectively reasonable police officer” to think that

Imhoff was involved in drug trafficking at the time of

the stop. Ornelas, 517 U.S. at 696. Far and away,

the most significant factor is the 5- day, round-trip

rental contract. Trooper Fetterhoff s request to view

the contract was one of the “ordinary inquiries

incident to the traffic stop.” Rodriguez, 575 U.S. at

355 (quoting Caballes, 543 U.S. at 408) (brackets

omitted). When he saw that Imhoff was on day two

of a five-day rental, and still heading away from Las

Vegas, Fetterhoff knew that Imhoff would be making

a quick turnaround when he reached his

destination—behavior consistent, as he testified at

the hearing, with drug couriering.

Trooper Fetterhoff reasonably viewed the other facts

available to him as increasing the likelihood that

Imhoff was transporting drugs, even though the

same facts would likely not give rise to reasonable

suspicion without the rental contract. The small day

pack, lack of luggage, and littered floor were

evidence of hard driving, raising the probability that

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Imhoff was making a quick drug run. Further

supporting Fetterhoff’s suspicion was Imhoff’s

failure to give any information about his purported

residence in North Dakota; he either was unable or

refused to give more than two digits of the zip code.

What is more, while Fetterhoff initially stated he

had a house, he later changed his story, saying that

in fact he had a friend with whom he could stay. See

United States v. Malik, __F.3d,__, No. 19-10166,

2020 WL 3636354 (9th Cir. 2020) (per curium)

(explaining that officers may disregard or disbelieve

a statement when the speaker’s claims are

inconsistent) (citing of Columbia v. Wesby, 138 S. Ct.

577, 592 (2018)). And Fetterhoff logically determined

that, whatever Fetterhoff s housing situation might

be in North Dakota, it wasn’t consistent with the

round-trip rental contract. He also recognized that

the contract could not be squared with Imhoff s

assertion that he had taken a quick trip to Vegas

from the Bakken; if so, the rental should have

originated and ended in North Dakota.

Imhoff’s location—moving east on 1-90—raises no

eyebrows on its own, but it was reasonable for

Fetterhoff to note that Imhoff s trajectory followed

that of a typical drug dealer. Finally, Trooper

Fetterhoff testified that drug traffickers often rent

minivans because they blend in with traffic, but

these rentals are more expensive and larger than

necessary for individuals traveling alone and with

few personal items. While the Court would not

otherwise view a minivan as inherently suspicious, it

also finds that Fetterhoff reasonably drew from his

training and experience when he found that the type

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of vehicle driven by Imhoff supported his

determination of particularized suspicion. See

Arvizu, 534 U.S. at 750 (explaining that the

standard of reasonable suspicion “allows 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”)

(quotation omitted).

In this case, most of the facts known to Trooper

Fetterhoff at the time of the dog sniff were not

particularly damning. However, taken together they

provided particularized suspicion authorizing a brief

continuation of the seizure for purposes of

conducting the dog sniff Thus, Imhoff s Fourth

Amendment rights were not violated, and no

evidence will be suppressed.

That said, the Court notes that it finds it somewhat

concerning that a police officer would be confident—

rather than merely reasonably suspicious—that an

individual like Imhoff was violating anything other

than the traffic code. Trooper Fetterhoff testified at

the suppression hearing that he knew he was

dealing with a drug distributer when he saw a white

minivan traveling six miles over the speed limit with

the back windows vented. He repeatedly testified to

the immediacy and strength of his conviction that

Imhoff was transporting drugs—when he initially

saw the van, when he noticed that it was rented, and

again when he noticed gas station detritus. These

facts would be common to any number of drivers

tackling the ten-hour stretch of 1-90 that runs

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through Montana, and the Court hopes that highway

patrol officers do not regularly assume that

motorists are drug traffickers. If you have a

hammer, the saying goes, everything looks like a

nail. Nonetheless, an individual officer’s state of

mind is irrelevant to the objective inquiry demanded,

and the Court’s concern therefore does not factor into

its analysis.

IT IS ORDERED that the motion to suppress (Doc.

24) is DENIED.

IT IS FURTHER ORDERED that this matter is

reset for jury trial on July 27, 2020 at 9:00 a.m. in

the James F. Battin Courthouse in Billings,

Montana. The plea agreement deadline is July 16,

2020. The JERS deadline is July 20, 2020. Jury

instructions and trial briefs are due on or before July

22, 2020.

DATED this 9th day of July, 2020.

Dana L. Christensen, District Judge

United States District Court

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APPENDIX D

[DATE STAMP]

FILED

APR 7 2022

By_____________

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NICHOLAS JAMES IMHOFF,

Defendant-Appellant.

ORDER

No. 21-30077

D.C. Nos.

1:20-cr-00024-DLC-1

1:20-cr-00024-DLC

District of Montana, Billings

Before: GOULD and RAWLINSON, Circuit Judges,

and ADELMAN,* District Judge.

_________________________

* The Honorable Lynn S. Adelman, United States District

Judge for the Eastern District of Wisconsin, sitting by

designation.

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The panel voted to deny the Petition for Panel

Rehearing.

Judges Gould and Rawlinson voted to deny, and

Judge Adelman recommended denying, the Petition

for Rehearing En Banc.

The full court has been advised of the Petition for

Rehearing En Banc, and no judge of the court has

requested a vote.

Defendant-Appellant’s Petition for Panel Rehearing

and Rehearing En Banc, filed March 14, 2022, is

DENIED.

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APPENDIX E

United States Constitution

Fourth Amendment of

the Bill of Rights

[T]he right of the people to be secure

in their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated, and

no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation,

and

particularly

describing the place to be searched,

and the persons or things to be seized.

U.S. Const. amend. IV.

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