Opinion
C. A. K2-2019-0284A K2-2019-0284B
05-10-2021
STATE OF RHODE ISLAND v. JEROME JOSEPH STATE OF RHODE ISLAND v. VOGUEL FIGARO
For Plaintiff: David Bonzagni, Esq. For Defendant: Susannah D. Cotter, Esq. Angela M. Lawless, Esq.
For Plaintiff: David Bonzagni, Esq.
For Defendant: Susannah D. Cotter, Esq.
Angela M. Lawless, Esq.
DECISION
PROCACCINI J.
"The life of the law has not been logic; it has been experience."
- Justice Oliver Wendell Holmes, Jr.
Police pull over more than fifty thousand drivers on a typical day, more than twenty million motorists each year. Researchers have identified that the most common police interaction with the public occurs during traffic stops. Despite these frequent encounters, traffic stop data was not generally compiled and tracked in a systematic way until recently. In 2015, the Stanford Open Policing Project-a unique partnership between the Stanford Computational Journalism Lab and the Stanford Computational Policy Lab-began requesting traffic stop data from various states across the country. To date, the project has collected and standardized over 200 million records of traffic stop and search data from across the country.
The Stanford Open Policing Project, Findings, https://openpolicing.stanford.edu/findings (last accessed April 30, 2021).
Id.
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For purposes of their nationwide analysis on traffic stops and searches, the Stanford Open Policing Project "examined almost 100 million traffic stops conducted from 2011 to 2017 across 21 state patrol agencies, including California, Illinois, New York and Texas, and 29 municipal police departments[.]"
Erik Ortiz, Inside 100 million police traffic stops: New evidence of racial bias, NBC News, https://www.nbcnews.com/news/us-news/inside-100-million-police-traffic-stops-new-evidenceracial-bias-n980556 (March 13, 2019).
To search for evidence of racial bias, the Stanford Open Policing Project sliced the data according to police stops, police searches, and the impact of marijuana legalization. They specifically analyzed whether black drivers are being pulled over at a higher rate during the day than at night, the rate at which drivers were searched and the likelihood that those searches turned up illegal drugs and guns, and how the legalization of recreational marijuana impacted the search rate. The results confirmed the anecdotal story that there are significant racial disparities in policing across the country.
Id.
The study revealed that "police stopped and searched black and Latino drivers on the basis of less evidence than used in stopping white drivers, who are searched less often but are more likely to be found with illegal items." It also revealed that there has been a reduction in searches of both white and minority drivers after the legalization of marijuana, but that the search rate remains twice as high for minorities. While this study did not set out to conclude whether officers knowingly engage in racial discrimination, the results show that race is a factor when people are pulled over and that it is occurring across the country.
Id.
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The State of Rhode Island has examined racial disparities in policing. A state commissioned study conducted by Central Connecticut State University found for the fourth year in a row that "police throughout Rhode Island pulled over non-white drivers at disproportionate rates in 2019[.]" The study found that nearly thirteen percent of traffic stops in Rhode Island were of black drivers in 2019, even though they make up about eight percent of the statewide population according to United States Census data. The study also indicated that "some departments are more likely to find contraband after searching white drivers than they are after searching Black or Hispanic drivers, which suggests they're subjecting Black and Hispanic drivers to more searches[.]" This study provides valuable insight in determining whether there are racial disparities in traffic stops and searches conducted throughout the State.
Brian Amaral, State-commissioned study finds racial disparities in R.I. traffic stops for 4th year in a row, The Boston Globe, https://www.bostonglobe.com/2021/03/12/metro/statecommissioned-study-finds-racial-disparities-ri-traffic-stops-4th-year-row (March 12, 2021).
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In Whren v. United States, 517 U.S. 806 (1996), the United States Supreme Court held that the subjective intentions of a police officer in initiating a traffic stop are irrelevant under the Fourth Amendment. Whren, 517 U.S. at 813. In coming to this conclusion, the Court indicated that "concerns about racial inequality were irrelevant for the purposes of the Fourth Amendment when officers have probable cause of a traffic violation." The Court's decision ultimately "constitutionalized pretextual traffic stops under the Fourth Amendment and inspired a regime in which pretextual stops have become an institutionalized law enforcement practice to further criminal enforcement goals." Furthermore, Whren encouraged "a regime in which the basis of a traffic stop is obfuscated for drivers and passengers-and in particular, overpoliced minority drivers and passengers, who are more commonly subjected to pretextual traffic stops." In light of the inadvertent consequences of Whren, it is not surprising that statistical data on traffic stops throughout the country as well as in our State indicate that there are racial disparities in traffic stops.
Jordan Blair Woods, Policing, Danger Narratives, and Routine Traffic Stops, 117 Mich. L. Rev. 635, 703 (2019).
Id. at 703-04.
Id. at 705.
This Court is unable to ignore that race and implicit bias may be a consideration in the initiation of traffic stops and a law enforcement officer's decision to perform a warrantless search of a vehicle. Accordingly, the Court is mindful of these issues as it evaluates the issues presented.
Defendants Jerome Joseph (Joseph) and Voguel Figaro (Figaro)-collectively Defendants-move to suppress evidence that was obtained during the search of Figaro's vehicle on June 21, 2018. The Defendants argue that the evidence obtained from the vehicle should be suppressed because the vehicle stop, detention, and subsequent search were conducted in violation of their Fourth Amendment rights. Conversely, the State of Rhode Island (State) maintains that there was reasonable suspicion to prolong the traffic stop and that the evidence seized was lawful under the automobile exception to the warrant requirement, and therefore, the evidence found during the search should not be suppressed. For the reasons discussed herein, the Court grants the Defendants' motions to suppress.
I
The following facts were taken from testimony at a suppression hearing held on April 7, 2021.
This matter arises from events that occurred on June 21, 2018. Rhode Island State Trooper, Andrew Elsing (Elsing), was assigned to patrol traffic on Route 95 North in the City of Warwick. At approximately 5:30 p.m., Elsing was driving along the highway when he observed a gray Toyota Sienna (the vehicle) abruptly move from the second right travel lane to the first right travel lane and then back to the second right travel lane to avoid striking another vehicle. Elsing then observed the vehicle move back into the first right travel lane and then exit the highway onto Exit 12.
Elsing, at the time of the hearing, had been a State Trooper for ten years. He graduated from the State Police Academy in 2011. During his time in the academy, Elsing received training on how to conduct traffic stops and how to recognize indicators of criminal activity during traffic stops.
From Exit 12, Elsing observed the vehicle merge onto Route 113 and straddle the dotted white line for about twenty yards before fully entering the right lane. Elsing then observed the vehicle turn right onto Greenwich Avenue and abruptly cross two lanes of traffic and make a U-turn before pulling into a gas station. As the vehicle entered the gas station, Elsing activated his emergency lights to conduct a traffic stop.
Elsing exited his cruiser and approached the driver's side of the vehicle. As he approached the driver's side window, he observed three occupants-a male operator, a male passenger, and a female passenger. Elsing immediately spoke with the operator of the vehicle, who identified himself as Figaro. Elsing testified that his first interaction with Figaro was abnormal because Figaro began speaking before being spoken to. He testified that Figaro said, "Hey, Boss, is there a problem, did I do something wrong?" Without answering, Elsing asked Figaro for his license and registration.
As Figaro was gathering the requested documents, Elsing informed Figaro that his driving behavior was erratic. Figaro in turn acknowledged that another car almost hit him on the highway while he was attempting to switch lanes. In response, Elsing informed Figaro that his erratic driving continued after he exited the highway. Figaro then told Elsing that he was just trying to get food and gas. At that point, Elsing observed that Figaro had a little over half a tank of gas. He also observed that Figaro's hand was visibly shaking and that his breathing became heavy as he was handing over his license and registration. Elsing then asked the two other occupants for their identification. The front seat passenger gave Elsing a Florida license that identified him as Julian Joseph and the backseat female passenger gave Elsing a Maine identification card that identified her as Anaika Whyles.
After receiving the three identifications, Elsing, based on his training and experience as well as Figaro's nervous behavior, ordered Figaro to exit the vehicle and directed him to stand in between the back of his vehicle and the front of the police cruiser. On direct, Elsing testified that he issued the exit order because he wanted to ask Figaro additional questions outside the presence of the two passengers. Elsing also testified that he did not pat down Figaro upon moving him from the vehicle because he felt that there was no reason to do so.
Once Figaro was behind his vehicle, Elsing began to ask Figaro questions about his travels. Figaro told Elsing that he drove from Massachusetts to Virginia on Tuesday to visit family and then began the drive back to Massachusetts on Thursday, the day of the stop. He also told Elsing that they only stopped in New York for food and gas. While conversing with Figaro about his travel itinerary, Elsing observed that Figaro was profusely sweating and wiping his forehead despite it only being early summer. Elsing asked Figaro if he was nervous, to which he replied, "No man, I just don't know why you stopped me. I didn't do anything wrong." In addition to testifying about Figaro's nervous behavior, Elsing also testified that Figaro was pacing back and forth behind his vehicle which, based upon his experience and training, was an indicator of someone attempting to flee the scene.
Elsing then asked Figaro to identify the passengers traveling with him. Figaro identified the front seat passenger as JJ and claimed that he had known him for a long time but could not remember his last name. He also told Elsing that the backseat passenger was his girlfriend Anaika who he had been dating for about five or six months, but that he also could not remember her last name.
While Elsing was speaking with Figaro, Corporal Daniel O'Neil (O'Neil) arrived at the scene. Elsing gave O'Neil the three identification cards so he could perform law enforcement checks. Elsing then shifted his focus from speaking with Figaro to speaking with the passengers in the vehicle. Elsing first made contact with the front seat passenger, Joseph. Elsing asked Joseph where they were coming from and why they were traveling. Joseph stated that they were coming back from Virginia and that Figaro asked him to take a ride there to pick up a car engine. Joseph also stated that Figaro picked him up in Massachusetts on Tuesday and that they began their return journey from Virginia on Thursday, the day of the stop. Elsing then looked through the rear hatch window of the vehicle and confirmed that there was in fact an engine in plain view. Elsing, believing that Figaro and Joseph's statements about their travel itinerary were conflicting, directed Joseph to exit the vehicle and stand in front of it.
O'Neil, at the time of the hearing, had been a State Trooper for seventeen years. He graduated from the State Police Academy in 2004 and had fifteen years of experience in traffic enforcement and investigative work before being promoted to the rank of corporal. He testified that he responded to assist Elsing with the traffic stop for purposes of officer safety and that it was common practice to let the stopping officer have full control of the situation.
After Elsing finished speaking with the passengers, O'Neil returned to his vehicle to run law enforcement checks. O'Neil was having an issue confirming Joseph's identity, so Elsing asked Joseph if his license was valid. Joseph responded that it was good and volunteered that he was arrested in Massachusetts in February for fighting and that he was only in Massachusetts because he had a court date coming up. With this additional information, O'Neil was able to identify a Jerome Joseph who had a different date of birth than the Julian Joseph identified on the Florida license. Notwithstanding confirmation that Joseph provided a false identification, the troopers did not arrest Joseph for any offense related to providing false identification to law enforcement.
Elsing then shifted his focus back to Figaro and proceeded to ask him separate questions concerning the presence of illegal contraband in the car. He specifically asked Figaro if he had a firearm, narcotics, or large amounts of cash in the vehicle. Figaro replied "no" to each question. Elsing than asked Figaro for permission to search the vehicle. Figaro told Elsing "no, let's see how my license comes back." Figaro's license was confirmed active and Elsing again asked Figaro if he could search the vehicle. In response, Figaro stated, "I told you all set, if you have a warrant you can look."
Clearly dissatisfied with Figaro's refusal to consent to an automobile search, Elsing advised Figaro that he would be performing a free air sniff around the vehicle. All three occupants were then directed to sit along the curb while the dog sniff was conducted. Elsing testified that he retrieved K-9 King from his vehicle around 6:20 p.m., which indicates that the Defendants were detained for almost an hour after their vehicle was stopped.
The Court believes it necessary to point out that K-9 King had been in Elsing's cruiser throughout the duration of the stop.
Elsing and O'Neil gave contradictory testimony about how the dog sniff was conducted- whether Elsing started the sniff from the front of the vehicle or the rear of the vehicle and which part of the vehicle K-9 King indicated at first for the presence of narcotics. Regardless of the manner in which the dog sniff was conducted, Elsing and O'Neil both testified that K-9 King indicated the presence of a narcotic odor at the operator's door and the rear of the vehicle.
After the positive indication by K-9 King at the operator's door, Elsing asked Figaro why his dog indicated the presence of narcotics. Figaro responded that they had smoked marijuana one to two hours earlier and that the remnants were in the map pocket of the driver's side door. Elsing then opened the driver's side door but did not confirm whether there were narcotics or remnants of marijuana in the map pocket. He instead placed K-9 King inside the vehicle so he could perform an interior sniff. K-9 King then gave a positive alert for the rear compartment of the van.
Elsing asked the occupants why K-9 King was indicating at the rear of the van. Joseph responded that he smoked weed in the back of the van earlier that day and the wrapper was in the cup holder. Elsing then allowed Joseph to open the trunk, reach into the vehicle, and pull out a cup which confirmed his explanation for the positive alert. When Joseph opened the trunk, Elsing testified that he observed, in plain view, a bullet proof vest and a box of bullets. Upon the discovery of these items, Elsing performed a Terry pat of all three individuals which was negative for additional contraband.
Elsing then performed a search of the vehicle. He opened the rear sliding door of the vehicle and observed a camouflage duffle bag as well as a female purse on the floor in the area in front of the back-seat passenger's feet. Elsing opened the camouflage duffle bag and observed wipes and a shirt. Elsing moved the shirt over to see the bottom of the bag and immediately observed the handle of a firearm. Elsing left all of the items where they were and told O'Neil about the firearm he discovered in the bag.
Elsing and O'Neil then placed Figaro and Joseph into custody and read them their Miranda rights. After being read his rights, Figaro told the troopers that the vest and ammunition were given to him by a military friend in Virginia and that it was stuff he needed to send to his people. He also informed the troopers that the firearm was not his.
The State charged Joseph with (1) carrying a firearm without a license, (2) possessing a stolen firearm, (3) importing armor-piercing bullets, and (4) giving a false driver's license to Rhode Island State Police. The State also charged Figaro with importing armor-piercing bullets. Defendants moved, individually, to suppress the evidence found during the search of Figaro's vehicle as well as their statements made after the search.
II Standard of Review
Defendants bring their instant motions pursuant to Rule 41(f) of the Superior Court Rules of Criminal Procedure. The State bears the burden of establishing that the evidence seized from Figaro's vehicle is admissible "by a fair preponderance of the evidence." State v. O'Dell, 576 A.2d 425, 427 (R.I. 1990) (citing United States v. Matlock, 415 U.S. 164, 177 n.14 (1974)); see also State v. Tavarez, 572 A.2d 276, 279 (R.I. 1990).
III Analysis
Joseph and Figaro each contend that the evidence found during the search of the vehicle as well as their statements made during the traffic stop should be suppressed because the traffic stop was unconstitutionally extended for investigative purposes absent the existence of reasonable suspicion. The Defendants specifically argue that there was no reasonable suspicion to believe they were involved in drug trafficking or other criminal activity that would constitutionally justify their prolonged detention as well as the search of their vehicle.
Conversely, the State argues that Elsing had reasonable suspicion to prolong the traffic stop as it shifted to a criminal investigation, and he reasonably believed crime was afoot. The State also argues that the search of Figaro's vehicle was lawful because Elsing had probable cause to search the vehicle for contraband.
"The Fourth Amendment, applicable to the states through the Fourteenth Amendment, guarantees a person's right to be secure against unreasonable searches and seizures." State v. Foster, 842 A.2d 1047, 1050 (R.I. 2004). "A traffic stop, by definition, embodies a detention of the vehicle and its occupants. It therefore constitutes a seizure within the purview of the Fourth Amendment." United States v. Chhien, 266 F.3d 1, 5 (1st Cir. 2001); see also State v. Parra, 941 A.2d 799, 803-04 (R.I. 2007) ("[i]t is well established that when a police officer makes a traffic stop, both the driver and any passengers are seized within the meaning of the Fourth Amendment, regardless of the brevity of the stop"). Accordingly, any occupant in the vehicle "may challenge his own detention regardless of whether he was the immediate target of the investigation or whether he had a privacy interest in the vehicle itself." United States v. Sowers, 136 F.3d 24, 27 (1st Cir. 1998). Furthermore, for a traffic stop to be conducted in accordance with the Fourth
Amendment, it must be reasonable under the circumstances. See State v. Quinlan, 921 A.2d 96, 106 (R.I. 2007) ("It is well established that a traffic stop, regardless of how brief and limited, constitutes a seizure for Fourth Amendment purposes, and thus must be reasonable under the circumstances").
A Lawfulness of the Traffic Stop
The Defendants argue that Elsing unlawfully prolonged the traffic stop because he did not have reasonable suspicion to inquire of crimes other than the laned roadway violations. They specifically argue that Elsing unlawfully prolonged the traffic stop because the Defendants' conflicting travel stories and their nervousness during the encounter did not give Elsing reasonable suspicion to believe criminal activity was afoot.
Conversely, the State argues that Elsing possessed reasonable suspicion based on articulable facts to prolong the traffic stop and conduct the dog sniff. The State specifically argues that Elsing's experience and training, coupled with Figaro's nervousness and behavior, as well as Joseph's false driver's license, all constitute articulable facts that gave Elsing reasonable suspicion to prolong the traffic stop and perform a dog sniff.
The Court's analysis of the lawfulness of a traffic stop requires a two-step analysis. First, the Court must assess "whether the initial stop was justified; and second, whether the police had a legal basis to justify an investigation beyond the scope of the reason for the stop itself." United States v. Orth, 873 F.3d 349, 353-54 (1st Cir. 2017).
1 Initial Stop of the Vehicle
While the Defendants did not argue that the initial stop of the vehicle was unlawful, the Court must still address whether the stop of Figaro's vehicle was justified.
To justify the type of seizure involved in a traffic stop, the United States Supreme Court has stated that "officers need only reasonable suspicion-that is, 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) (citing Navarette v. California, 572 U.S. 393, 396 (2014)) (internal quotation marks omitted). The Court has also stated that "the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause." Navarette, 572 U.S. at 397 (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)) (internal quotation marks omitted). When assessing reasonable suspicion, a court must look at the '"totality of the circumstances-the whole picture."' Sokolow, 490 U.S. at 8 (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). Thus, in determining whether the initial stop of Figaro's vehicle was lawful, the Court must decide whether Elsing had reasonable suspicion to believe a traffic violation occurred. This answer comes down to a credibility determination of Elsing's testimony that he observed Figaro make laned roadway violations.
Here, the Court finds Elsing's testimony concerning Figaro's driving to be credible. Elsing testified that he observed the vehicle abruptly swerve to the right lane, almost strike another vehicle, and then swerve back into the right lane and abruptly exit the highway onto Exit 12. Elsing also testified that once the vehicle left the highway, it merged onto Route 113, straddled the dotted white lines for about twenty yards before entering the right travel lane, turned right onto Greenwich Avenue, and then cut across two lanes of travel in order to make a U-turn to head northbound on Greenwich Avenue. Given that Elsing testified in elaborate detail about what he observed, the Court finds that Figaro did commit laned roadway violations as described in G.L 1956 § 31-15-11. Therefore, this Court concludes that the initial stop of Figaro's vehicle was justified because Elsing had reasonable suspicion to believe Figaro committed a traffic violation.
Having found that the initial stop of Figaro's vehicle was justified, the Court will proceed to step two of its analysis and determine whether Elsing prolonged the traffic stop without independent reasonable suspicion, thus causing the traffic stop to become unlawful. The Court will specifically examine whether Elsing's conduct after the initiation of the stop and before the dog sniff withstands our well-settled Fourth Amendment jurisprudence.
The Court is mindful that the dog sniff and positive alert given by K-9 King gave Elsing probable cause to search Figaro's vehicle under the automobile exception. However, the dog sniff and subsequent search of the vehicle are deemed fruits of the poisonous tree if the vehicle stop was prolonged without reasonable suspicion.
2 Prolonged Detention
The United States Supreme Court has stated "that 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). It has cautioned on numerous occasions that a traffic stop "justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Id.; see also Arizona v. Johnson, 555 U.S. 323, 333 (2009) (holding that a seizure remains lawful only "so long as [unrelated] inquiries do not measurably extend the duration of the stop").
The mission of an officer conducting a traffic stop is not constrained to determining whether to issue a traffic ticket. The mission also includes "ordinary inquiries incident to the traffic stop." Rodriguez v. United States, 575 U.S. 348, 355 (2015). "Typically such inquiries involve checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." Id. "These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly." Id. Thus, "[a]n officer . . . may conduct certain unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Id.
Additionally, "[h]ighway and officer safety are interests different in kind from the Government's endeavor to detect crime in general or drug trafficking in particular." See id. at 357. The United States Supreme Court made clear in Rodriguez that a dog sniff is not an ordinary incident of a traffic stop, but rather a "measure aimed at detecting evidence of ordinary criminal wrongdoing." Id. (internal citations and quotations omitted). Hence, the United States Supreme Court articulated that the critical question to address in analyzing the legality of a traffic stop that utilized a dog sniff is "whether conducting the sniff 'prolongs'-i.e., adds time to-'the stop.'" Id. at 357
The question the Court must address then, as stated in Rodriguez, is whether Elsing's decision to perform a dog sniff added time to the stop of Figaro's vehicle. See id. at 357. The Court finds that the stop lasted for approximately an hour based on the credible testimony of Elsing. Despite the State's contention that the stop in this case was generally longer than the average traffic stop because it took the troopers more time to confirm the identities of Joseph and Whyles, the length of Defendants' detention is still concerning to this Court given that the
Defendants were only stopped for a minor traffic violation. Furthermore, the United States Supreme Court was clear in Rodriguez that "[a] seizure justified only by a police-observed traffic violation . . . becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation." Id. at 350-51 (internal quotations and citations omitted). This Court finds that Elsing deviated from his traffic enforcement mission of issuing Figaro a ticket for a traffic violation when he decided to conduct the dog sniff after the law enforcement checks of Defendants' identities were completed. The Court is constrained to make this finding because rather than writing Figaro a ticket for the driving violation, which would have allowed Elsing to complete the mission of the stop, Elsing decided to pursue a narcotics investigation. See id. at 356 (stating that on-scene investigation into other crimes is considered a detour from the traffic enforcement mission). Thus, given that the length of Defendants' detention exceeded the bounds of a regular traffic stop and that Elsing decided to conduct a dog sniff rather than complete the mission of the stop, the Court is constrained to conclude that performing the dog sniff added time to the traffic stop, and therefore, Elsing prolonged the stop.
3 Reasonableness of the Detention
Given this Court's conclusion that Elsing prolonged the traffic stop when he conducted a dog sniff of Figaro's vehicle, the Court must determine whether Elsing had adequate reasonable suspicion to justify the prolongation of the stop. See Rodriguez, 575 U.S. at 355 (An officer may not prolong a traffic stop "absent the reasonable suspicion ordinarily demanded to justify detaining an individual"). Thus, the question before this Court is whether Elsing had adequate reasonable suspicion to prolong the traffic stop and turn it into a criminal investigation based upon the events leading up to the dog sniff. See State v. Linze, 389 P.3d 150, 154 (Idaho 2016) ("[W]hen an officer abandons his or her original purpose, the officer has for all intents and purposes initiated a new seizure with a new purpose; one which requires its own reasonableness under the Fourth Amendment. This new seizure cannot piggy-back on the reasonableness of the original seizure.").
While there is '"[n]o simple, mechanical formula [that] tells us what reasonable suspicion is, . . .we know that it is less than probable cause and more than a naked hunch."' United States v. Dion, 859 F.3d 114, 124 (1st Cir. 2017) (quoting United States v. McGregor, 650 F.3d 813, 821 (1st Cir. 2011)). We also know that "no one-size-fits-all template exists to sketch out whether an officer acted with reasonable suspicion." Id. "Evaluating whether an officer's suspicions were reasonable is a fact-specific task, requiring some level of deference to the experienced perception of the officers." Orth, 873 F.3d at 355 (internal quotations and citations omitted). "The court cannot evaluate reasonable suspicion in a vacuum; it must make due allowance for the need for police officers to draw upon their experience and arrive at inferences and deductions that might well elude an untrained person." Id. (internal quotations and citations omitted).
Additionally, "the circumstances and unfolding events during a traffic stop allow for an officer to 'shift his focus and increase the scope of his investigation by degrees' with the accumulation of information." Id. at 354 (quoting Chhien, 266 F.3d at 6). Furthermore, any subsequent actions after the initial stop must be "measured by the 'emerging tableau' of circumstances as the stop unfolds." Id. Hence, "we must assess the presence of reasonable suspicion in a commonsense, case-by-case way, taking in the whole picture" while giving "a measurable degree of deference to the perceptions of experienced law enforcement officers." Dion, 859 F.3d at 124 (internal quotations omitted). "Of course, such deference is not without bounds." Orth, 873 F.3d at 355.
Courts have concluded that certain facts such as excessive nervousness, inability of an occupant to confirm his or her identity, conflicting stories about travel plans, evasive moments by an occupant, as well as an occupant's body language and displayed aggression, when viewed together, justify a prolonged traffic stop. See id. at 356 (holding that an officer had reasonable suspicion to prolong a traffic stop based on the passenger's abnormal body language and displayed aggression, and that the driver was extremely nervous, gave quick answers to the officer's questions, and refused to check his glove compartment for the vehicle's registration); see also Sowers, 136 F.3d at 27 (holding that an officer had reasonable suspicion to believe criminal activity was afoot because of the conflicting stories told by the two occupants, their excessive nervousness, and the passenger's inability to confirm her identity).
Based on the Court's review of the sequence of events that led up to the dog sniff, there were few facts that, when viewed together, could provide Elsing with reasonable suspicion to believe criminal activity was afoot. The Defendants were fully compliant with Elsing's request to provide the vehicle's registration as well as their identification cards, they did not act evasively during questioning, they were polite and cordial, and they did not make any furtive movements.
Furthermore, while Elsing testified that Figaro and Joseph gave what he characterized as "conflicting" information concerning their travel itinerary, this Court finds the information relayed by Figaro and Joseph to be relatively consistent when viewed in the totality of the circumstances known to Elsing. Both Figaro and Joseph told Elsing that they had gone to Virginia on Tuesday and were on their way home to Massachusetts at the time of the stop. The only difference between their stories was the purpose of the trip-Figaro claimed that the purpose of the trip was to visit family in Virginia while Joseph claimed they were in Virginia to pick up an engine. The Court does not find this discrepancy to be inherently conflicting because it is equally plausible that the Defendants went to Virginia to pick up an engine as well as see Figaro's family. Consequently, Elsing's contention that the Defendants gave conflicting stories is of minimal assistance to the Court's reasonable suspicion analysis. The Court's conclusion is further buttressed by the fact that Elsing was able to see the engine in plain view in the rear of the vehicle. Thus, based on the Court's review of Elsing's testimony, the only articulable facts available to Elsing before the dog sniff were the Defendants' nervousness and Joseph's false Florida driver's license that he provided to the troopers for purposes of the law enforcement check.
Nervousness is of slight use to the Court in its reasonable suspicion analysis because "[n]ervousness is a common and entirely natural reaction to police presence[.]" United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005); see also State v. Huffman, 360 P.3d 707, 712 (Or. Ct. App. 2015) ("nervousness alone is entitled to little weight when evaluating reasonable suspicion"). Since it's pervasive, it is "not necessarily indicative of criminality, to appear nervous during even a mundane encounter with police[.]" Commonwealth v. Cruz, 945 N.E.2d 899, 907 (Mass. 2011). O'Neil himself testified that everyone is inherently nervous and in "crisis" during a traffic stop because their routine has been disrupted. Additionally, this Court cannot overlook that the Defendants in this case could have plausibly appeared nervous or in "crisis" for a myriad of reasons unrelated to transporting criminal contraband. Given the ongoing violence encountered by people of color in traffic stops across the country as well as the stark statistics that indicate that racial bias affects an increasing number of motor vehicle stops, the Court finds it likely that the Defendants could have appeared excessively nervous because they were unable to discern whether they were being pulled over for just a traffic violation or something else-like their race. Accordingly, this Court, like other courts in Massachusetts and New York, does not find nervousness to be a significant factor in its reasonable suspicion analysis.
See notes 6 and 11.
(perhaps correctly in many cases), and that anxiety can encourage escalation during the encounters that unfolds into violence[.]"). See Woods, supra note 14 at 705 ("[O]verpoliced minority drivers and passengers, who are more commonly subjected to pretextual traffic stops . . . may view traffic stops as instances of profiling
See Commonwealth. v. Evans, 34 N.E.3d 772, 777 (Mass. App. Ct. 2015) ("our cases have consistently held that a defendant's nervous movements or appearance alone is insufficient to create reasonable suspicion"); People v. Freeman, 144 A.D.3d 1650, 1651 (N.Y.App.Div. 2016) "[a] defendant's nervousness upon being confronted by the police did not give rise to a founded suspicion that criminal activity was afoot").
Thus, having found that the nervousness of the Defendants is of minimal probative value to the Court's analysis of reasonable suspicion, the Court finds that nervousness coupled with a passenger's false driver's license is insufficient to establish the reasonable suspicion required to prolong the traffic stop of Figaro's vehicle in order to conduct a dog sniff. The Court is constrained to come to this conclusion because there was no evidence available to Elsing that would provide a reasonable inference that the Defendants were involved in drug trafficking. Elsing did not smell marijuana nor did he observe drug paraphernalia in plain view in the vehicle. If Elsing had made these plain sight and smell observations, he would have had more information available to him that would have allowed him to develop his suspicions during the stop and in turn increase the scope of his investigation by degrees, so he could properly shift his focus from the traffic violation to a criminal narcotics investigation. See Dion, 859 F.3d at 125 (recognizing that "as an investigation unfolds, an officer's focus can shift, and he can 'increase the scope of his investigation by degrees'").
The Court finds it necessary to point out that K-9 King was only trained in narcotics detection and thus could not detect other types of contraband such as firearms or explosives.
Additionally, Joseph's false Florida driver's license does not tip the Court's analysis into the realm of reasonable suspicion because the receipt of false identity information is not necessarily indicative of narcotic trafficking. See Ledlow v. State, No. A-10033, 2009 WL 2185358, at *3 (Alaska Ct. App. July 22, 2009) ("merely traveling under an alias does not establish probable cause that the suspect is committing a particular crime"). The Court's conclusion is bolstered by the fact that Joseph volunteered more information which ultimately allowed the troopers to confirm his identity and confirm that he did not have existing criminal warrants. See Commonwealth v. Obiora, 981 N.E.2d 203, 207 n.7 (Mass. App. Ct. 2013) ("the receipt of false identity information concerning [a defendant] could give rise to reasonable suspicion that he was attempting to evade detection of an outstanding criminal warrant").
See Commonwealth v. Brown, 915 N.E.2d 252, 257 (Mass. App. Ct. 2009) ("nervous or anxious behavior in combination with factors that add nothing to the equation will not support a reasonable suspicion" that criminal activity was afoot).
This Court is aware that the search of Figaro's vehicle resulted in the discovery of contraband; however, it cannot overlook the unlawfulness of the traffic stop. Former United States Supreme Court Justice Robert H. Jackson once observed, "a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success."His wise words capture the deep-rooted notion that we do not stray from the bedrock principles of the Fourth Amendment just because criminal activity has been discovered. The principles enshrined within the Fourth Amendment must be followed regardless of what turns up in the wake of unlawful law enforcement action.
United States v. Di Re, 332 U.S. 581, 595 (1948).
Therefore, this Court finds that Elsing's extension of the traffic stop beyond its original scope was unreasonable under the circumstances because Elsing did not have independent reasonable suspicion to prolong the traffic stop of Figaro's vehicle.
B Probable Cause to Search the Vehicle
Based upon the Court's conclusion that the stop was unlawfully prolonged, the Court need not address whether Elsing had probable cause to search Figaro's vehicle because the evidence seized is fruit of the unlawful stop.
IV Conclusion
Therefore, based on the facts present during the traffic stop, the Court concludes that the stop of Figaro's vehicle was prolonged without independent reasonable suspicion to believe further criminal activity was afoot. Since the prolongation of the traffic stop was not supported by reasonable suspicion, Defendants' constitutional rights were violated. Accordingly, Defendants' motion to suppress their statements as well as the evidence seized from the vehicle during the stop is granted. Counsel shall submit appropriate order for entry.