76 F. 3d 393 - United States v. Ortiz-Duran

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant Ortiz-Duran was indicted and charged with two counts of aiding and abetting in the possession of heroin and marijuana, with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Ortiz-Duran filed a motion to suppress evidence obtained as a result of a detention and search that allegedly violated his Fourth Amendment rights. After an evidentiary hearing, the district court denied the motion to suppress. Ortiz-Duran subsequently pled guilty to the marijuana count, reserving the right to appeal the denial of the pretrial motion to suppress. The district court sentenced him to two years probation and a $1,000.00 fine. Ortiz-Duran now appeals the order of the district court denying his motion to suppress. We affirm.

On March 30, 1992, at approximately 9:00 A.M., Deputy Phil Barney of the Sevier County Sheriff's Department stopped a vehicle on the shoulder of the eastbound lanes of Interstate 70 for speeding. While discussing the traffic violation with the driver of the car, Deputy Barney heard, but did not see, a vehicle coming from the west that was traveling over the "wake-up" bumps designed to alert drivers drifting outside of the lanes of travel. Deputy Barney then saw a car pass him, which he determined to be the same car that he had heard traveling over the wake-up bumps. When he saw the car pass him, it was within the left lane of travel. He was unable to observe any distinguishing characteristics of the occupants of the car except that they had short hair. He could not discern their age, race, or sex. Deputy Barney allowed the stopped car to leave and proceeded to follow the vehicle that had passed him. He testified that he believed that the driver might be impaired, possibly due to lack of sleep, and that he intended to pull the car over on that basis alone. While following the car, he observed it weaving within its lane of travel. He activated his lights, thus turning on the video camera installed in his patrol car, and pulled the pursued car over. The remainder of the encounter was captured on videotape.

Deputy Barney approached the car and asked the driver, Ortiz-Duran, for his license and registration. Ortiz-Duran produced a California driver's license and an Illinois vehicle registration in the name of his passenger, Nicholas Meran. Deputy Barney immediately detected a smell that he did not recognize coming from the car. He informed Ortiz-Duran and Meran that he had observed their car weaving and asked if they had been driving all night and if they were tired. Ortiz-Duran responded affirmatively. Deputy Barney observed that they appeared scared, and on the basis of the unidentified smell and their scared demeanor proceeded to ask them if they had guns or drugs in the car. They replied, "No." Finally, Deputy Barney requested permission to look in their vehicle. Ortiz-Duran responded, "Sure."

Deputy Barney asked the detainees to step out of the car and patted them down for safety purposes. In doing so, he discovered that each was carrying several hundred dollars. Ortiz-Duran then asked Deputy Barney if he would like to open the bags in the rear passenger area. Ortiz-Duran and Meran also invited Deputy Barney to search the trunk. Deputy Barney observed that the detainees appeared nervous when he looked in the passenger area, but relaxed noticeably when he searched the trunk. He detected the unidentified smell primarily while in the passenger area. Upon searching the passenger area a second time, he discovered loose rear quarter panels. Behind the panels, he found heroin and marijuana, the evidence that Ortiz-Duran later sought to suppress.

Ortiz-Duran alleges that he was not driving in a manner that justified the stop (and that therefore the stop was pretextual) and that he was illegally detained when asked to consent to the search. We disagree on both counts. "[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring." United States v. Botero-Ospina, 71 F.3d 7893, 787 (10th Cir.1995). Utah law requires a car to "be operated as nearly as practical, entirely within a single lane...." Utah Code Ann. § 41-6-61. The fact that Deputy Barney heard Ortiz-Duran drive over the wake-up bumps outside of the traffic lanes supported his reasonable suspicion that a traffic violation had occurred. Moreover, his observation of the car weaving, his knowledge that single car accidents due to driver fatigue typically occur in the morning hours, and his consequent concern that the driver of the car was fatigued also contributed to the reasonableness of the stop.

This was not, as the defendant claims, a situation akin to that in United States v. Lyons, 7 F.3d 973, 975 (10th Cir.1993), in which the driver had not demonstrably violated any law. Here, the sound of the car hitting the wake-up bumps was a clear indication that Ortiz-Duran was driving outside of the legal lanes of travel. Moreover, Ortiz-Duran offers no satisfactory alternative explanation for Deputy Barney's decision to stop the vehicle. "Absent introduction of any rationale for the stop outside the parameters of the traffic violations, the stop cannot, by definition, be called 'pretextual.' " United States v. Horn, 970 F.2d 728, 731 (10th Cir.1992).

Having concluded that the stop was not pretextual, we now turn to the question of whether Deputy Barney was justified in questioning the occupants of the vehicle about drugs and guns. Once an officer stops a vehicle and concludes the traffic matter at hand, he must allow the offending driver to leave unless there is a reasonable basis for further detention. "[I]f the officer retains the driver's license, he or she must have reasonable and articulable suspicion to question the driver about drugs or weapons." United States v. Turner, 928 F.2d 956, 959 (10th Cir.1991), cert. denied, 502 U.S. 881 (1991). We base our assessment of whether reasonable suspicion existed on the totality of circumstances. United States v. Sanchez-Valderuten, 11 F.3d 985, 989 (10th Cir.1993). Although nervousness on the part of the vehicle occupant is not sufficient, in itself, to justify further detention, United States v. Fernandez, 18 F.3d 874, 879 (10th Cir.1994), nervousness combined with other suspicious circumstances may be. We conclude that Ortiz-Duran's demeanor, in combination with the unidentified smell detected by Deputy Barney, was sufficient to generate reasonable suspicion. Similarly, in Turner, this Court found that a defendant's nervousness, combined with inconsistencies between his appearance and stated occupation, justified the formation of reasonable suspicion of criminal activity. 928 F.2d at 959. In sum, the totality of circumstances justified Deputy Barney's decision to question the defendant about drugs and guns.

In response to Deputy Barney's questioning, Ortiz-Duran and his companion offered unambiguous consent to a search of the vehicle. Indeed, they invited Deputy Barney to extend the scope of his search after he began. Because the search was consensual and because it followed questioning based on a reasonable, articulable suspicion following a non-pretextual stop, we conclude that the search and detention did not violate Ortiz-Duran's Fourth Amendment rights. The judgment of the district court is therefore AFFIRMED.

The mandate shall issue forthwith.

KERN, District Judge, dissenting.

I disagree with the majority's conclusion that Deputy Barney had objectively reasonable suspicion to justify a continued detention. In Deputy Barney's testimony at the suppression hearing, he did not positively identify the smell as one of narcotics or of a known masking agent. At one point, he testified he "suspected" the smell was narcotics, (Transcript at 15, 1.19), but articulated no basis for the suspicion. On cross-examination, he testified "I had no idea what I was smelling." Id. at 33, 11.18-19.

The opinion notes the Tenth Circuit has never held nervousness by itself creates a reasonable suspicion of criminal activity. In United States v. Little, 18 F.3d 1499, 1506 (10th Cir.1994), the court said "[a]n unidentified chemical smell emanating from an unlabelled piece of luggage is not, by itself, sufficient to create reasonable suspicion." On the same page, the court in Little also cited approvingly United States v. McKneely, 810 F.Supp. 1537, 1543 (D.Utah) ("An unidentified [chemical] smell alone is not sufficient to create a reasonable suspicion."), rev'd on other grounds, 6 F.3d 1447 (10th Cir.1993). The decision cited by the majority, United States v. Turner, 928 F.2d 956 (10th Cir.), cert. denied, 502 U.S. 881 (1991), did not involve any type of odor. In Turner, the defendant's nervousness was combined not only with inconsistencies in appearance and stated occupation, as the majority states, but also with the fact that the vehicle was not registered to either the defendant or to his passenger. Id. at 959.

Of course, two or more factors, each insufficient if considered in isolation, may combine and form a basis for reasonable suspicion. I am not persuaded nervousness plus an unidentified smell, absent other factors, form such a combination. I therefore respectfully dissent.