Opinion
CAUSE NO. 3:21-CR-81 DRL
2022-06-17
UNITED STATES of America, Plaintiff, v. Marilyn GARCIA, Defendant.
Frank E. Schaffer, Government Attorney, U.S. Attorney's Office, South Bend, IN, for Plaintiff.
Frank E. Schaffer, Government Attorney, U.S. Attorney's Office, South Bend, IN, for Plaintiff.
OPINION & ORDER
Damon R. Leichty, Judge
The government charged Marilyn Garcia with interstate travel in aid of racketeering. See 18 U.S.C. § 1952(a)(3). During a traffic stop, law enforcement searched her car and found bundled currency, cocaine, and marijuana. She moves to suppress the evidence and her statements that day. She says law enforcement lacked probable cause to search her car, unreasonably prolonged her seizure, and surreptitiously recorded her statements in violation of her Miranda rights.
The court grants the motion under the Fourth Amendment to the United States Constitution. The totality of the record establishes that law enforcement lacked probable cause to search the vehicle and measurably prolonged the traffic stop beyond its mission to issue a mere warning by conducting a canine free air sniff without reasonable suspicion of any criminal activity. The Fourth Amendment permits only a reasonable seizure and search, and this traffic stop involved neither one.
FACTUAL FINDINGS
These facts emerge from the evidence and testimony presented to the court, including at an evidentiary hearing on April 14, 2022 and through briefing that concluded on May 12, 2022. See Fed. R. Crim. P. 12(d); United States v. Coleman, 149 F.3d 674, 677 (7th Cir. 1998). Additional findings follow in the court's discussion of the arguments.
Around 5:30 a.m. on July 23, 2020, Sergeant Kenneth Williams, a fifteen-year veteran with the Hobart Police Department, noticed a white Toyota traveling five miles per hour over the speed limit and crossing the white fog line while he patrolled Interstate 90. He turned on his camera at 5:31 a.m. and initiated a traffic stop. Marilyn Garcia was the driver. A man sat in the passenger seat.
Sergeant Williams approached the passenger side of the vehicle from the rear [Tr. 35-36]. He testified that he smelled a strong odor of perfume and a "very faint" odor of marijuana while approaching the car [id. 10, 35-36]. He could not be precise where he was when he first encountered these scents but says he believes he wasn't yet up to the vehicle [id.]. He neither smelled burnt marijuana nor noticed anything that would suggest use of marijuana that day [id. 38-39]. At this time, the passenger window was just coming down and about half open [id. 35, 86].
Sergeant Williams engaged the driver and passenger. The car was rented in the passenger's name. Sergeant Williams noticed that the passenger was "dropping [paperwork] all over the place" as he looked for the rental agreement [id. 10, 33]. He observed "short labored breathing" in the driver [id. 11], later noting in his police report instead that her "heart [was] beating rapidly in her chest" [id. 35]. At this point, nothing else struck him as unusual [id. 11].
Sergeant Williams asked Ms. Garcia to exit the vehicle and stand next to his police cruiser [id. 46]. He sat in his squad car. When asked where she was coming from, Ms. Garcia briefly hesitated before responding "Cleveland" [Tr. 49; Ex. 3B 2:38]. She no longer had labored breathing in his estimation, but he nonetheless grew more suspicious [Tr. 49].
Sergeant Williams ran information on the rental vehicle and attached it to the call report at approximately 5:38 a.m. [id. 52]. He ran and attached Ms. Garcia's information at approximately 5:39 a.m. [id. 52-53]. He ran and attached the passenger's information at about 5:40 a.m. [id. 53]. Within two minutes, all the information came back clear—no warrants with valid driver licenses [id.]. Sergeant Williams continued to speak with Ms. Garcia, asking her about her job, her relationship with the passenger, and her travel plans as he worked through writing the warning ticket [id. 54-56]. She told him they were visiting the passenger's family in Cleveland [id. 49; Ex. 3B 3:18].
Sergeant Williams wrote 5:40 a.m. as the time of the warning ticket, and likely started the ticket just beforehand based on the timeline here [Ex. 2; Ex. 3B 8:55; Tr. 56]. Several datapoints permit the court to approximate reasonably how long it took for Sergeant Williams to complete his task of filling out the rather simple warning form, including videotape of the conversation between the sergeant and Ms. Garcia and the other evidence.
For example, just thirty seconds into the task, Sergeant Williams began to write Ms. Garcia's old home address, only to cross it out when corrected by Ms. Garcia [Ex. 2; Ex. 3B 9:00-9:12; Tr. 56-57]. Sergeant Williams asked Ms. Garcia's age close to 5:41 a.m., making a comment about not wanting to mess up the math as he wrote on the ticket [Ex. 2; Ex. 3B 9:54-10:04; Tr. 57-58].
After 5:42 a.m., he placed the pad on his lap and capped his pen [Ex. 3B 11:39]. He placed the pad with the warning ticket on the dash and went to return the rental agreement and license to the passenger about a minute later, just after 5:43 a.m. [id. 12:31-12:36; Tr. 59]. Sergeant Williams testified that at this point, he was done writing the warning ticket, and nearly done with the mission of the traffic stop, needing only to give everyone's property back [Tr. 59-61]. At this point, there had been no report of any concern with drugs and no questions of the driver or passenger about drugs [Exs. 3A, 3B, 4].
While returning the documents, Sergeant Williams asked the passenger where they were coming from, to which the passenger replied, "past Ohio" [id. 81; Ex. 3B 12:55], and who they were visiting, to which the passenger replied both of their families [Ex. 3B 13:04]. Never once did Sergeant Williams ask about any drug activity or act as drugs had been detected up to this point; instead, the focus of the stop remained entirely on the traffic violation.
Only after returning to his squad car at just after 5:44 a.m., still needing to give Ms. Garcia her license and warning, did Sergeant Williams contact dispatch via his computer's instant message system [Ex. 3B 13:28; Ex. 4 5:44:33]. He called for backup [Ex. 4; Tr. 65]. About a minute later, at 5:45 a.m., still holding onto the warning ticket and Ms. Garcia's license, he asked dispatch for a "triple I" [Ex. 3B 14:15-14:23; Ex. 4 5:45:23]. This refers to the Federal Bureau of Investigation's Interstate Identification Index, an automated information system used to exchange criminal history records and related information among federal, state, and local criminal justice agencies.
Sergeant Williams told Ms. Garcia he was waiting for information—a statement he admits now was a lie to her [Tr. 67]. Sergeant Williams asked Ms. Garcia if there was anything illegal in the vehicle, listing guns, stolen merchandise, and then narcotics and currency as almost an after-thought [Ex. 3B 14:32-14:35]. Ms. Garcia denied anything illegal in the car [id. 14:35]. He asked permission to search the vehicle [id. 14:38]. She declined.
Sergeant Williams asked Ms. Garcia to sit in his vehicle, retrieved the passenger and sat him in the back of the squad car, and retrieved his canine, Mojo, from the back of his vehicle. At about 5:47 a.m., he began a free air sniff at the front of the vehicle [Ex. 3A 16:50]. Sergeant Williams testified that as a protocol he starts his free air sniffs downwind; and on the highway, with vehicles traveling at approximately 70 miles per hour, that was in front of the rental car [Tr. 19; Ex. 3A 16:54]. Mojo alerted on the vehicle around 5:48 a.m. [id. 17:05].
Sergeant Williams searched the vehicle, finding two grams of marijuana in a sealed bag in a passenger compartment and then a bag with a large amount of "bricked" currency and over two pounds of cocaine in the trunk [Tr. 21; Ex. 1]. During this search, while Ms. Garcia and the passenger were in the police car, she made potentially incriminating comments, such as pleading with the passenger to tell the sergeant that "none of that stuff is mine" and that she "just drove" [Ex. 3B 17:40-17:45]. Sergeant Williams returned from the vehicle, handcuffed the passenger and Ms. Garcia, and sent a message to dispatch at 5:51 a.m. to "change to drugs" [Ex. 3B 19:50-20:00; Ex. 4].
With the sequence of events retold, the court returns to the timeline. Though subtle, the parties base their arguments off different timelines stemming from a disagreement about when the video recording began: the government believes that Sergeant Williams remained parked in the highway median at 5:34 a.m. and initiated the traffic stop a few minutes later, whereas Ms. Garcia believes that the stop was initiated at 5:34 a.m., as approximated by the police report, meaning the camera video was rolling before then.
There is no timestamp on the dash camera footage, but the name of the video file suggests that it began recording at approximately 5:31 a.m. on July 23, 2020 [see Ex. 3B (titled "Unassigned_20200723_05_31_111_Drug Seizure_412009059"]. Thus initially, the video suggests it began close to 5:31 a.m., and not 5:34 a.m. The court confirms this starting point by comparing the warning ticket [Ex. 2] to the dashcam videos [Exs. 3A, 3B, 3C], the attachment timestamps discussed at the suppression hearing [Tr. 52-53], and the timestamps of the messages Sergeant Williams sent to dispatch during the stop [Ex. 4].
The government provided the court only the messages beginning at 5:44:33 a.m. The record lacks any prior messages or other data-points (outside testimony) that would indicate when, for instance, Sergeant Williams reported that he was initiating a traffic stop.
If the dashcam video began at 5:34 a.m., then Sergeant Williams' first message at 5:44 a.m. would have been sent approximately ten minutes into the video [Ex. 4]. However, at the ten-minute mark, the video shows Sergeant Williams asking how old Ms. Garcia was and where she stayed in Cleveland, actively writing the ticket at this time and not typing on his computer [Ex. 3B 10:00-10:40]. Alternatively, using the 5:31 a.m. timeline, this message would be sent approximately thirteen minutes into the video. At this minute mark, the video shows Sergeant Williams briefly typing something on his computer [id. 13:29].
The triple I request was sent at 5:45 a.m. [Ex. 4]. If the dashcam video began at 5:34 a.m., this event would occur at approximately the eleven-minute mark, but at this mark the video shows Sergeant Williams' right hand resting near the edge of his computer, using it but not making any sustained typing noises [Ex. 3B 11:00]. Alternatively, at the fourteen-minute mark, both of his hands are on his computer and the sound of typing is audible, preceding Sergeant Williams asking if there was anything illegal in the vehicle [id. 14:23].
Finally, at 5:51 a.m., Sergeant Williams sent a message to dispatch stating "change to drugs" [Ex. 4]. Assuming the dashcam video began at 5:34 a.m., this message would have been sent approximately seventeen minutes into the video. At the seventeen-minute mark, however, Sergeant Williams was not in the squad car [Ex. 3B 17:00-18:00]. Alternatively, assuming the dashcam video began at 5:31 a.m., this message would be sent approximately twenty minutes into the video, at which point the footage shows Sergeant Williams returning to the vehicle after his canine search, handcuffing Ms. Garcia and the passenger, and typing something on the computer.
For several reasons then, and based on the totality of the evidence, the court believes these facts here accurately reconstruct the timeline of events. For ease of reference, the following timeline harmonizes the evidence between the dashcam videos (in red timestamps) [Exs. 3A, 3B] and the actual time that morning (in black) [e.g., Ex. 4]:
Image materials not available for display.
DISCUSSION
Pre-revolutionary writs of assistance permitted roving searches for contraband, and such general warrants allowed searches without any particularized evidence of an offense. Colonial Americans reviled the practice precisely because it placed "the liberty of every man in the hands of every petty officer." Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886); see also Maryland v. King, 569 U.S. 435, 466-67, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (Scalia, J., dissenting); Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).
The Fourth Amendment to the United States Constitution stamped out suspicionless searches and preserved the right of the people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; see also Caniglia v. Strom, — U.S. —, 141 S. Ct. 1596, 1599, 209 L.Ed.2d 604 (2021); United States v. Ochoa-Lopez, 31 F.4th 1024, 1026 (7th Cir. 2022). As the text suggests, the Fourth Amendment's touchstone is reasonableness. Lange v. California, — U.S. —, 141 S. Ct. 2011, 2017, 210 L.Ed.2d 486 (2021).
The Fourth Amendment protects against the government's unreasonable intrusion into a person's house, papers, or effects, or of her very person. Florida v. Jardines, 569 U.S. 1, 5, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013); Katz v. United States, 389 U.S. 347, 350-51, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). When law enforcement works to discover evidence of criminal wrongdoing, "reasonableness generally requires the obtaining of a judicial warrant." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). A warrant ensures that the inferences to support a search are "drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Riley v. California, 573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).
Warrantless searches "are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). No one contests the sergeant's authority to initiate the traffic stop—a seizure within the Fourth Amendment's meaning—because he had probable cause to believe a traffic violation occurred. See Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); United States v. Lawuary, 211 F.3d 372, 375 (7th Cir. 2000). The focus today instead, at least in the first instance, is whether the sergeant had probable cause to search the vehicle—known as the "automobile exception" to the warrant requirement. See United States v. Kizart, 967 F.3d 693, 695 (7th Cir. 2020).
Probable cause exists when the circumstances confronting a law enforcement officer support the reasonable belief that a person has committed an offense. See United States v. Muriel, 418 F.3d 720, 724 (7th Cir. 2005). It isn't a "high bar." Kaley v. United States, 571 U.S. 320, 338, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014). It doesn't "require an actual showing of criminal activity[.]" United States v. Howard, 883 F.3d 703, 707 (7th Cir. 2018) (quotations omitted). By definition, probable cause looks to probabilities—"examining the totality of the circumstances in a common sense manner," United States v. Schaafsma, 318 F.3d 718, 722 (7th Cir. 2003), and the "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act," Gerstein v. Pugh, 420 U.S. 103, 121, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (citation omitted).
Law enforcement cannot rely on information gathered after the fact and back-build a case for probable cause. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Probable cause is determined by reasonable conclusions drawn from the facts known to the arresting officer at the time of the search or arrest: "whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Id.; accord Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003); Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).
The government must prove by a preponderance of the evidence that the traffic stop and search complied with the Fourth Amendment. See United States v. Peters, 743 F.3d 1113, 1116 (7th Cir. 2014); United States v. Garcia-Garcia, 633 F.3d 608, 612 (7th Cir. 2011). A stop that started lawfully can nonetheless violate the Fourth Amendment if its manner of execution unreasonably infringes on liberties protected by the Constitution. Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). "Ever mindful of the Fourth Amendment and its history," the court views "with disfavor practices that permit police officers unbridled discretion to rummage at will among a person's private effects." Byrd v. United States, — U.S. —, 138 S. Ct. 1518, 1526, 200 L.Ed.2d 805 (2018) (quotation omitted). Evidence obtained from an unreasonable search or seizure must be suppressed. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
A. The Sergeant Lacked Probable Cause to Search the Vehicle.
Ms. Garcia argues that Sergeant Williams lacked probable cause to search the vehicle. The government contends that Sergeant Williams had probable cause based on a faint marijuana odor. The government would be right were this odor objectively credible.
When an officer smells marijuana coming from a vehicle, he has probable cause to search it. See Kizart, 967 F.3d at 695-96; United States v. Franklin, 547 F.3d 726, 733 (7th Cir. 2008). The search "lawfully extends to all parts of the vehicle in which contraband or evidence could be concealed, including closed compartments and trunks," United States v. Patterson, 65 F.3d 68, 70 (7th Cir. 1995) (quoting United States v. Young, 38 F.3d 338, 340 (7th Cir. 1994)), and packages and containers so long as a reasonable belief exists that contraband could be found there, Kizart, 967 F.3d at 695; United States v. Richards, 719 F.3d 746, 754 (7th Cir. 2013).
Such a reason for a search often hinges on an officer's credibility among all the circumstances of the stop. See Franklin, 547 F.3d at 733; United States v. Doxy, 225 F. Appx. 400, 402 (7th Cir. 2007). Sergeant Williams testified that he detected a "very faint" smell of marijuana. The court cannot credit this testimony for several reasons.
Sergeant Williams testified that he smelled marijuana only once—doing so from a partly-opened passenger window when he was still approaching the vehicle and feet away. This seems rather extraordinary, particularly when the sergeant approached the vehicle from the rear that day—that is, upwind. He testified that he commenced the canine sniff downwind or in the direction of traffic given the wind patterns created by fairly consistent 70 mile per hour traffic to permit the canine the maximal opportunity to detect illegal narcotics; and that was done at the front of the vehicle [Ex. 3A 16:51]. The court finds it implausible that an officer upwind (albeit light wind), toward the rear of the vehicle, and still approaching the car would detect this faint scent from a half-opened window.
The video recordings reflect the level of traffic and light wind directionally from blowing hair and landscape.
The sergeant's conduct also proves inconsistent with the claim that he smelled a "very faint" odor of marijuana. For instance, immediately on his approach, and apparently just after he smelled marijuana, he told the driver and passenger, "Nothing major here. You're just going five over. I just need you to slow down a little bit." [Ex. 3A 1:00-1:03] "As long as your license's good, I'll just give you a warning. No court, no fine." [Ex. 3B 2:25-2:30]. He said this at least three times during the stop. At no time did Sergeant Williams report to dispatch that he detected the smell of marijuana—never within twenty minutes of the stop (5:31-5:51 a.m.). A law enforcement officer who smelled marijuana would reasonably have made that initial report to dispatch, or at minimum when requesting a triple I. No testimony or police record reflects such a report of the possible presence of drugs in the vehicle until the canine sniff.
The first corroborating evidence of drugs came only after the canine alerted and Sergeant Williams began his search of the vehicle, only then messaging dispatch to "change to drugs." Had Sergeant Williams initially suspected or identified the smell of marijuana, or if its presence was implicit in his prior communications with dispatch, it isn't clear why he would need to say there was cause to "change" anything—only if the "change" was from an otherwise rudimentary traffic stop involving a mere warning to one for drugs after the canine sniff. Rather than corroborate the sergeant's detection of a marijuana smell, his communications with dispatch support the contrary conclusion that the smell of marijuana wasn't objectively front of mind.
In addition, at no time did Sergeant Williams ask Ms. Garcia or the passenger about the presence of drugs in the vehicle—not until after the purpose of the traffic stop had been completed and when he asked a general question about the presence of anything illegal. An officer might strategically await this question for a number of reasons but reasonably would not wait to ask it only after the traffic stop had ended if there was cause for concern about drugs. The timing of his one question about anything illegal seems prompted only by the perceived inconsistency in the driver's and passenger's statements about where they had been traveling, not by any scent of marijuana.
The sergeant's testimony also proved imprecise and at times uneasy. He never said the marijuana scent grew stronger as he got closer to the vehicle. He could not recall smelling marijuana at any other point, not even when he leaned toward the vehicle to ask for the registration—his nose right at the window [Ex. 3A 1:05]. He readily admitted that the marijuana smell would not dissipate [Tr. 87]—so how anomalous that he could detect the scent upwind and feet away on his approach but not immediately afterwards as he leaned in the window of the vehicle. The sergeant testified that when he reapproached the car yet later, he "would assume [he] smelled it again" [id. (emphasis added)], but that equivocal response struck the court as unnecessary and discomforting bootstrapping.
Sergeant Williams couldn't tell if the marijuana smell was burnt, despite his training [id. 38-39], though he described it as a "slight, skunky-type odor" [id. 86]. He later discovered only two grams of raw marijuana in a toiletry bag within a compartment in the car [Tr. 42, 89]. For the court to credit the sergeant's perception, the court must believe that he was able to smell two grams of raw marijuana—a weight equivalent to about two raisins or less than half a teaspoon of sugar—in a toiletry bag, stowed in a compartment of the car, from a half-opened window, while still approaching the vehicle, upwind. The totality of the circumstances precludes such an objective finding.
Perhaps the simple response would be to suggest that the car's occupants had smoked in the vehicle, but that makes little sense when the sergeant never smelled marijuana while near the window, nor even when the two occupants sat in his squad car right beside him. The sergeant also testified that he saw no evidence that the two occupants had smoked marijuana in the car that day. He never conducted a sobriety test on Ms. Garcia because he never suspected her of being impaired [Tr. 39].
Perhaps the sergeant, in recalling events of the morning well after the fact, believed that somewhere cloaked in the strong smell of perfume was a faint hint of marijuana, but the court cannot objectively say so based on the totality of the circumstances presented today. The sergeant's candid response to the government's questioning underscores this. When he returned paperwork to the passenger, after he had completed the warning, he asked the passenger about his travel plans. When asked why he did so and whether it related to a "drug investigation" at that point, he rejected that precision in testimony: "I believe it was more of a criminal investigation at that point" [Tr. 81]. His hunch came from responses to questions, and his call for backup and the decision to conduct a free air sniff originated from this hunch; but marijuana was not objectively a basis for probable cause to search the vehicle.
Nor was it objectively a basis to reasonably suspect the driver or passenger of criminal activity to justify prolonging an otherwise routine traffic stop. See infra.
B. The Canine Search Measurably Prolonged the Stop Beyond the Mission of Traffic Enforcement.
Absent probable cause to search the vehicle based on the smell of marijuana, the court must consider whether the canine sniff reasonably occurred within the time needed to complete the traffic stop's mission or whether the canine sniff measurably prolonged the stop. Use of a drug-sniffing dog around a car's exterior isn't an illegal search, and a positive alert by a canine provides law enforcement with probable cause to search a vehicle, Caballes, 543 U.S. at 409, 125 S.Ct. 834, but a canine sniff cannot measurably prolong the stop beyond its mission, Rodriguez v. United States, 575 U.S. 348, 354, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015).
A traffic stop's permissible duration is "determined by the seizure's 'mission'—to address the traffic violation that warranted the stop and attend to related safety concerns." Id. "A seizure that is 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." Caballes, 543 U.S. at 407, 125 S.Ct. 834; accord Muriel, 418 F.3d at 725. "The authority to detain a vehicle and its occupants for a police-observed traffic violation . . . ends when the 'tasks tied to the traffic infraction are—or reasonably should have been—completed.' " United States v. Rodriguez-Escalera, 884 F.3d 661, 668 (7th Cir. 2018) (quoting Rodriguez, 575 U.S. at 354, 135 S.Ct. 1609).
Sergeant Williams told the driver that he planned to give her only a warning. Such a routine traffic stop can reasonably involve a number of inquiries. "Typically such inquiries involve checking the driver's license, determining whether there are outstanding warrants against the driver, [ ] inspecting the automobile's registration and proof of insurance," Rodriguez, 575 U.S. at 355, 135 S.Ct. 1609, and asking about travel origins or plans, United States v. Cole, 21 F.4th 421, 431 (7th Cir. 2021). This car was a rental vehicle, so verifying its status would not be unreasonable. Because any traffic stop remains risky, a law enforcement officer also may take "certain negligibly burdensome precautions" to complete his mission safely, such as running a criminal history check. Rodriguez, 575 U.S. at 356, 135 S.Ct. 1609; United States v. Sanford, 806 F.3d 954, 956 (7th Cir. 2015) (calling such a check "a procedure permissible even without reasonable suspicion" because "it takes little time and may reveal outstanding arrest warrants").
Though "an officer may conduct ordinary inquiries incident to the stop," "[u]nrelated inquiries may not measurably prolong a traffic stop." United States v. Stewart, 902 F.3d 664, 672 (7th Cir. 2018); see also Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). "On-scene investigation into other crimes . . . detours from that mission" of a routine traffic stop. Rodriguez, 575 U.S. at 356, 135 S.Ct. 1609. A dog sniff is one such measure aimed at "detect[ing] evidence of ordinary criminal wrongdoing." Id. at 355, 135 S.Ct. 1609 (quoting Edmond, 531 U.S. at 42, 121 S.Ct. 447). "Dog sniffs . . . may not be fairly characterized as part of the officer's traffic mission, and so dog sniffs may not prolong or add time to the stop unless supported separately by individualized, reasonable suspicion." Stewart, 902 F.3d at 672.
"The question does not depend on exactly how many minutes the stop lasts. It depends on whether law enforcement has detained the person longer than needed to carry out the investigation that was justified by the reasonable suspicion." United States v. Lopez, 907 F.3d 472, 486 (7th Cir. 2018). "[W]hen an officer acts expeditiously but is delayed waiting for the arrival of a drug-sniffing dog or other investigative resources, a 20-minute stop could be justifiable. At the same time, a 15-minute stop would be too long if the investigation justifying the stop finished at the 14-minute mark." Id. The issue is not whether the prolongation took only one minute, four minutes, or twenty minutes; the relevant inquiry is whether the stop was prolonged past the point when "officers [had] completed every traffic-related task." United States v. Goodwill, 24 F.4th 612, 615-16 (7th Cir. 2022) (no violation when warning ticket was still being written); see, e.g., United States v. Offord, 788 F. Appx. 384, 387 (7th Cir. 2019) (time from initial stop to dog alert was not unreasonably prolonged when trooper was processing passenger's outstanding arrest warrant and briefing another officer who arrived on the scene); Sanford, 806 F.3d at 956-57 (total time of 26-27 minutes from the initial stop of the vehicle to the dog alert was reasonable when the trooper was checking criminal histories and obtaining additional suspicious information from the driver).
Sergeant Williams acknowledged that the traffic stop's mission ended when he finished writing the warning ticket at approximately 5:43 a.m., save for returning documentation to the passenger and Ms. Garcia—a short and modest task to be sure. By then, he had validated their licenses, verified the rental, and confirmed that they had no outstanding warrants [Tr. 52-53]. By then, he had completed the information on the warning ticket. By then, he had capped his pen and placed the completed warning on the dashboard. Upon returning the documents to the passenger, and just needing to hand Ms. Garcia her warning and license, the mission of this traffic stop was over, and the associated authority for the sergeant to impose on her constitutional rights ceased (absent reasonable suspicion of criminal wrongdoing). See Caballes, 543 U.S. at 407, 125 S.Ct. 834; Rodriguez-Escalera, 884 F.3d at 668.
Instead of giving Ms. Garcia her license and warning, Sergeant Williams returned to his squad car and only then made an inquiry about backup through his computer's instant messenger program. It was another minute before he asked for a triple I—despite Ms. Garcia standing outside awaiting her license and her warning, and now two minutes after the mission of the traffic stop ended, or at least should have. At this point, he asked for consent to search the car, which she declined. He still kept her license and the warning. By 5:47 a.m., now four minutes after the mission of the traffic stop should have ended, he told her to sit in the vehicle. He retrieved the passenger and placed him in the squad car too [Ex. 3B 15:40-16:20]. They were not free to leave. Sergeant Williams retrieved Mojo and did a free air sniff of the vehicle, now approximately five minutes after the mission of the stop should have ended. After Mojo alerted at approximately 5:48 a.m., Sergeant Williams searched the vehicle and discovered the small stash of marijuana in the sealed bag and later the contraband in the trunk. Only then did he return to his computer and ask for the stop to be "change[d] to drugs" [Ex. 4].
The protections enshrined in the Fourth Amendment are revived when a stop is prolonged after it reasonably should have ended. Rodriguez, 575 U.S. at 355, 135 S.Ct. 1609. The law recognizes that the stop's mission doesn't end simply when an officer signs his name on the ticket, but the mission necessarily includes inquiries incident to the stop; but the sergeant had already checked licenses, insurance, rental information, and warrants, so these inquiries don't explain why he kept Ms. Garcia seized past the time necessary for him to hand her the warning ticket and her license. From about 5:43 a.m. onward, the stop could extend only as long as it would take for him to hand her and the passenger the warning ticket and documentation—a matter of seconds. This was the remaining reasonable time to fulfill his mission of "ensuring that vehicles on the road are operated safely and responsibly." Rodriguez, 575 U.S. at 355, 135 S.Ct. 1609; see also Lopez, 907 F.3d at 486.
Though never argued by the government, the court considered whether the traffic stop encompassed the triple I request (just after 5:45 a.m.), thereby reasonably extending the stop until the sergeant received a response from dispatch (time unknown but ostensibly not returned by the time the report was made to "change to drugs") [Ex. 4]. After all, an officer may run a criminal history check on an individual even without reasonable suspicion, Sanford, 806 F.3d at 956, though this permission does not automatically extend the time reasonably necessary to complete the warning ticket, see Rodriguez, 575 U.S. at 352, 135 S.Ct. 1609 (officer "got all the reasons for the stop out of the way . . . took care of all the business" before beginning a free air sniff and thus necessarily prolonged the search).
Although a criminal history check may be a legitimate part of a traffic stop's mission, the sergeant's testimony and conduct belie its need here—perhaps why the government never advanced this point. He testified to no safety concerns; he called out no need for the background check related to the traffic stop. Instead, he testified that the only thing left to do for traffic enforcement was to give documents back to the passenger and driver after completing the warning [Tr. 60]. By his own admission, the triple I necessarily related to a new and developing criminal investigation, not the traffic stop. Indeed, he admitted he asked the question of origin of the passenger—when he returned the paperwork—because of a new criminal investigation.
To be sure, the sergeant told Ms. Garcia that he was waiting on additional information, but he testified he lied to her and actually wasn't waiting for anything (and wasn't for at least two minutes) [Tr. 67]. The point of raising this isn't to emphasize any deception or to consider improperly the sergeant's subjective intent, see Bond v. United States, 529 U.S. 334, 338 n.2, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000), but to underscore the reality of the circumstances based on his conduct—that a safety check on this day wasn't objectively necessary. Although an officer may conduct checks to promote his safety, this particular triple I wasn't a traffic-related safety task. It wasn't needed to complete his investigation into the traffic stop. See Lopez, 907 F.3d at 486 ("The question does not depend on exactly how many minutes the stop lasts. It depends on whether law enforcement has detained the person longer than needed to carry out the investigation that was justified by the reasonable suspicion.").
The sergeant admitted that handing the driver and passenger the warning and related documentation was all he needed to do to complete any roadside engagement. The court adheres to this testimony to find the sergeant's conduct, including the canine sniff, unreasonably prolonged this traffic stop beyond its original mission.
C. No Reasonable and Articulable Suspicion Justified Ms. Garcia's Continued Seizure.
That conclusion then leaves only one inquiry—whether the sergeant had reasonable suspicion that crime (other than the traffic offense) was afoot. An officer cannot investigate a matter outside the initial stop's scope and prolong the stop unless the motorist consents or the officer has reasonable and articulable suspicion of ongoing criminal activity. See Rodriguez, 575 U.S. at 355, 135 S.Ct. 1609 (officer may not prolong a stop "absent the reasonable suspicion ordinarily demanded to justify detaining an individual"); United States v. Walton, 827 F.3d 682, 687 (7th Cir. 2016) (same); United States v. Ruiz, 785 F.3d 1134, 1143 (7th Cir. 2015) ("assuming reasonable suspicion exists (as it did here), a reasonable delay attributable to arranging for a canine unit to conduct a sniff may permissibly extend the duration of a stop"); see also Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Reasonable suspicion "embodies something less than probable cause," and something more than a "hunch or inchoate suspicion." Rodriguez-Escalera, 884 F.3d at 668 (citation omitted). An officer must have "a particularized and objective basis" for suspecting the person who was stopped of criminal activity, though (like probable cause) this guidepost remains a "fluid concept[ ] that take[s] [its] substantive content from the particular contexts in which [it is] being assessed." Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In determining whether reasonable suspicion exists, the court examines the "totality of the circumstances to assess whether the detaining officer has a particularized and objective basis for suspecting illegal activity." United States v. Zambrana, 428 F.3d 670, 675 (7th Cir. 2005) (quotation omitted). This assessment is based on "the totality of the circumstances known to the officer at the time of the stop, including the experience of the officer and the behavior and characteristics of the suspect." United States v. Lawshea, 461 F.3d 857, 859 (7th Cir. 2006). The officer must be able to "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." Terry, 392 U.S. at 21, 88 S.Ct. 1868.
To decide whether an officer's suspicion is reasonable, the court must consider "the totality of the circumstances—the whole picture." United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Of course the court may address each factor supporting reasonable suspicion separately, see, e.g., District of Columbia v. Wesby, 583 U.S. 48, 138 S. Ct. 577, 586-88, 199 L.Ed.2d 453 (2018) (assessing each factor for probable cause separately), so long as the court in the end considers their totality and the reasonable inferences that a law enforcement officer, in light of his personal training and experience, could draw from the objective facts in their entirety, see Rodriguez-Escalera, 884 F.3d at 669. Generally, circumstances that describe "a very large category of presumably innocent travelers" do not provide law enforcement with reasonable suspicion. Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980).
Sergeant Williams had reasonable suspicion to effectuate the traffic stop (indeed probable cause), but not to prolong the stop beyond his mission of traffic enforcement. The government contends that the sergeant's reasonable suspicion was informed by the passenger's shaking hands and fumbling of rental paperwork, the driver's heart beating rapidly in her chest, and their responses to certain questions. In truth, the sergeant merely had before him the passenger's shaking hands and fumbling of rental paperwork and the driver's and passenger's arguably inconsistent statements about their origins and who they had visited before traveling—perhaps enough to support a developing hunch for this trained drug interdiction sergeant of fifteen years [Tr. 8-9] but not suspicion of criminal activity that could be called objectively reasonable. These facts may have served a call for further inquiry, but not reasonably an alert that criminal activity was afoot.
The court eliminates from the whole the contention that Ms. Garcia's heart was beating out of her chest. The sergeant documented the driver's behavior in this manner, but he testified that such an observation would be "physically impossible" [Tr. 35]. The sergeant pivoted to testify he observed "short, rapid breathing" instead; but the court gives this new proffer no credence because the sergeant, otherwise quite meticulous in his report, documented no such thing and because the video evidence displayed no such labored breathing by the driver. See Rodriguez-Escalera, 884 F.3d at 669 ("court was not required to credit [the officer]'s testimony that the couple appeared nervous when the court's own review of the traffic stop footage led it to the opposite conclusion").
The only visual indications of labored breathing occurred when Ms. Garcia was already seated in the squad car and Sergeant Williams began the canine sniff and later search of the rental car [Ex. 3B 15:30-17:30]—video of which the sergeant watched after the fact as he prepared his report. The sergeant completed a detailed police report while watching video of the traffic stop [Tr. 40], so the sergeant's sound recall likely was influenced by what he was reviewing anew from the video of events, including events that occurred after he needed to form his reasonable suspicion. In the video, Ms. Garcia tells the passenger that her chest was beating. This more aptly explains this recorded perception rather than any objective evidence from the stop.
To that point, Ms. Garcia proved calm, cooperative, and responsive to questions. She answered all questions, casually volunteered additional information when not asked, made eye contact at times, laughed, and even leaned into the squad car to explain her temporary license and her new address. Unsurprisingly, there was no way to see how fast her heart was beating, and her breathing and nerves seemed entirely proportional to the setting, particularly left standing outside the squad car on an otherwise highly-trafficked I-90 highway. She hesitated on certain questions of import, but not so much that the sergeant noticed or cited this hesitancy as reason for his suspicion. He confessed it a rather "regular" conversation [Tr. 49]; and, indeed, the conversation during this more than ten-minute roadside exchange was cordial and conversational.
This exchange perhaps speaks to Sergeant Williams' skill for putting individuals at ease in what otherwise could be an anxious experience, see United States v. Williams, 731 F.3d 678, 687 (7th Cir. 2013), but it objectively leaves the perspective that her heart was beating out of her chest beforehand, when she was still in her vehicle, less than credible, particularly when the sergeant testified that his observation would be physically impossible to make.
"A display of nervousness is frequently recognized as a sign that a suspect has something to hide[.]" United States v. Patton, 705 F.3d 734, 740 (7th Cir. 2013); see Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ("nervous, evasive behavior is a pertinent factor in determining reasonable suspicion"). That said, "[m]ost people, when confronted by a police officer, are likely to act nervous, avoid eye contact, and even potentially shift their bodies as if to move away from the area, thus making such behaviors of very little import to a reasonable suspicion determination." Williams, 731 F.3d at 687. An individual's nervousness thus may contribute to the reasonableness of an officer's suspicion, but objectively also may not. See, e.g., United States v. Ford, 872 F.3d 412, 416 (7th Cir. 2017); compare United States v. Lewis, 920 F.3d 483, 493 (7th Cir. 2019) (unusual nerves for a warning, trembling hands, labored breathing, inconsistent travel explanations, and being on supervised release for a drug offense all raised reasonable suspicion), with Rodriguez-Escalera, 884 F.3d at 669 (driver and passenger appearing nervous, coming from major narcotics distribution center, initially presenting conflicting travel plans, and having multiple air fresheners failed to provide reasonable suspicion to prolong a stop). Whatever slight nerves Ms. Garcia displayed, nothing objectively added to the totality of the circumstances on this day.
That credibly leaves the passenger's nerves—shaking hands initially, fumbling documents, and mistakenly handing the sergeant the wrong rental agreement at first [Ex. 3B 1:30]—and comparative responses from the passenger and driver to two questions. Audio from the video confirms that the passenger initially gave Sergeant Williams the wrong rental agreement, but he shortly located the right paperwork and provided it. This initial discoordination suggests little more than the passenger didn't anticipate being pulled over and didn't have his paperwork in order, describing a circumstance "a very large category of presumably innocent travelers" would face. Reid, 448 U.S. at 441, 100 S.Ct. 2752. The sergeant never noticed the passenger nervous again after this initial interaction, and the audio from the later exchanges never reflects such demonstrable nerves, just slight hesitation.
But the court must nonetheless add these facts to the comparative statements the sergeant identified to run the calculus of reasonable suspicion. At one point, Ms. Garcia said they were visiting the passenger's family, whereas the passenger said they were visiting both their families. Ms. Garcia said they were traveling from "Cleveland," whereas the passenger said they were traveling "past Ohio." The government (and sergeant) cited these seeming incongruences as additional grounds for the sergeant's reasonable suspicion.
A law enforcement officer need not rule out innocent explanations for conduct that appears suspicious at first blush, see United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), though the court may consider facts later obtained to mitigate or dispel this suspicion, Rodriguez-Escalera, 884 F.3d at 670. "The Constitution allows an officer to ask these questions during a traffic stop, especially when the answers objectively seem suspicious." Lewis, 920 F.3d at 492. "If a driver's responses are evasive, inconsistent, or improbable, the officer need not accept them at face value and move on. To the contrary, the officer may ask reasonable follow-up questions to clarify the answers." Cole, 21 F.4th at 431. This the sergeant did not do, at least in a manner to develop reasonable suspicion.
These comparative responses from the driver and passenger begged more questions perhaps but never established reasonable suspicion, even with the passenger's shaking hands and fumbling documents initially. Sergeant Williams never asked the passenger specifically about the family they were visiting [Tr. 73]. It is not objectively manifest that an assertion that they were visiting both families, as opposed to just his family, was articulably inconsistent in light of their romantic relationship, already described to Sergeant Williams as somewhere between friend and boyfriend [Ex. 3B 5:57-6:02]. Indeed, at one point, Ms. Garcia said "we've got family" in Ohio [id. 3:14], demonstrating that both the driver and passenger viewed it as a family that was shared. Whatever inconsistency exists here, it is of the softest sort.
Inconsistent statements may support reasonable suspicion but often amid a kaleidoscope of other factors. See Cole, 21 F.4th at 434 (continually evolving story based on where the individual was from and where he was going and how long he stayed there contributes to a reasonable suspicion, along with nervousness and implausible answers, and other circumstances); Lewis, 920 F.3d at 493 (nervousness after getting told it is a warning ticket, trembling hands and labored breathing, on supervised release from drug offense, "suspiciously inconsistent" travel explanations gave rise to reasonable suspicion); United States v. McBride, 635 F.3d 879, 882 (7th Cir. 2011) (nervousness, conflicting stories between passenger and driver about a trip to Fort Wayne, and driver not being able to keep story straight when officer returned for second round of questioning in total gave rise to reasonable suspicion); United States v. Figueroa-Espana, 511 F.3d 696, 703 (7th Cir. 2007) (nervousness, changing story about who owned the truck, conflicting information about destination, no driver's license or registration, and admitting immigration status gave rise together to reasonable suspicion); United States v. Martin, 422 F.3d 597, 600, 602 (7th Cir. 2005) (driver giving vague and different answers to several questions justified calling backup after he could not produce a license or rental agreement); United States v. Robinson, 30 F.3d 774, 784 (7th Cir. 1994) (giving misleading answers, matching a description of the suspect, voluntarily sitting in a heated car, admitting to staying in a specific motel of concern, and traveling toward a drug address).
Sergeant Williams testified that if the driver and passenger had been honest, both would have said "Cleveland" as their travel origin [Tr. 81]. The court appreciates the difference between "Cleveland" and "past Ohio," though objectively even Sergeant Williams remained focused on Ohio as he asked the passenger what brought them to Ohio [Ex. 3A 13:00]. The sergeant clearly thought he was on to something, given his questions and how he pressed the passenger, but the evaluation of constitutional standards isn't hinged on the sergeant's subjective thinking, but objective factors. Onto a hunch for sure, and one that was ostensibly later confirmed, but there wasn't reasonable suspicion at the time, accounting for the totality of circumstances here. See Rodriguez-Escalera, 884 F.3d at 669 (driver and passenger appearing nervous, coming from a major narcotics distribution center, initially presenting conflicting travel plans, and having multiple air fresheners did not provide reasonable suspicion to prolong the stop).
The government claims there's more, but there isn't. The government argues that the passenger had trouble remembering where they stayed and that both Ms. Garcia and the passenger could not remember why they left or what day they left. The government cited no evidence for these statements, and the court could find none. Indeed, seemingly nowhere within the video recordings does Sergeant Williams ask the passenger where they had stayed, why they left, or what day they left. When asked, Ms. Garcia responds that they stayed at the Hampton [Ex. 3A 10:16], left because she needed to return and take a COVID test for her trip to Puerto Rico [id. 11:37-11:55], and that they had left Cleveland early that same day [id. 11:36]. She displayed little inability to communicate answers to these inquiries about why they left or what day they left.
That said, two soft incongruences and some fumbling of papers from a shaky hand weren't an objective basis for reasonable suspicion that criminal activity was occurring, even for an experienced Sergeant Williams. There wasn't a reasonable basis to secure both the driver and passenger in the squad car, to retrieve the canine, to conduct a free air sniff, or to conduct any other measurable criminal investigation. "On-scene investigation into other crimes . . . detours from that mission" of a routine traffic stop. Rodriguez, 575 U.S. at 356, 135 S.Ct. 1609.
The court appreciates the difficult circumstances that require law enforcement to make quick decisions. Law enforcement officers are not expected to be constitutional scholars, or to act as legal technicians with the luxury of time and study in deliberating and reviewing their every action as judges do. See, e.g., United States v. Packer, 15 F.3d 654, 659 (7th Cir. 1994); United States v. Reed, 349 F.3d 457, 462 (7th Cir. 2003). When Sergeant Williams returned from giving the passenger his documents, he had a hunch that something was off. Good police work often begins with a hunch, but it cannot end there; and, instead, it is the job of law enforcement to develop that hunch into a reasonable suspicion based on the totality of the circumstances, doing so as a reasonable and prudent person based on the experience of everyday life. See Gerstein, 420 U.S. at 121, 95 S.Ct. 854.
The sergeant's hunch was subsequently confirmed—finding cash and drugs—but the court must assess the sergeant's actions based on what he knew at the time, not with perfect 20/20 hindsight. United States v. Richmond, 924 F.3d 404, 417 (7th Cir. 2019). The traffic stop's prolongation and the subsequent search were unlawful. See Rodriguez, 575 U.S. at 357, 135 S.Ct. 1609. The Fourth Amendment requires that the evidence be suppressed, including the statements from Ms. Garcia within the squad car. See Wong Sun, 371 U.S. at 485, 488, 83 S.Ct. 407 (statements made after the "exploitation of [an] illegality" are "no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion"); United States v. Wilbourn, 799 F.3d 900, 910 (7th Cir. 2015) ("Evidence seized as a result of an illegal stop is the fruit of the poisonous tree and should not be introduced into evidence.").
In light of this conclusion, the court need not address the remaining arguments regarding an expectation of privacy within the police car under the Fourth Amendment or the alleged interrogatory nature of Ms. Garcia and the passenger's confinement under the Fifth Amendment. These statements resulted only from the unreasonably prolonged stop and constitute fruit of this poisoned tree.
CONCLUSION
The Fourth Amendment permits only reasonable searches and seizures. In this case, the continued seizure of Ms. Garcia after the mission of the traffic stop, and thus the subsequent search of the vehicle, were not reasonable. Accordingly, the court GRANTS the motions to suppress evidence and statements subsequently made by Ms. Garcia [ECF 15; ECF 16].
SO ORDERED.