Opinion
No. 5-074 / 04-0576
Filed July 13, 2005
Appeal from the Iowa District Court for Cedar County, James E. Kelley and Nancy S. Tabor, Judges.
Bradley Nadler appeals from the denial of his motion to suppress evidence. REVERSED, CONVICTION AND SENTENCE VACATED, AND REMANDED.
Leon F. Spies of Mellon Spies, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, and Lee W. Beine, County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Bradley Nadler appeals from the denial of his motion to suppress evidence used to obtain his conviction. We now reverse.
I. Background Facts and Proceedings.
On January 20, 2003, at approximately 12:30 pm, State Trooper Chad Page encountered a vehicle driven by Bradley Nadler on Interstate 80. Trooper Page followed Nadler for approximately five miles and while doing so observed Nadler's vehicle, traveling in the right lane, had slowed to approximately fifty-seven m.p.h. Page also noted Nadler, who frequently looked back at the patrol car through his rear-view mirror, had his hands "fixed" at the "10 and 2" position on the steering wheel. When a truck attempted to merge onto the Interstate, Nadler's vehicle made an abrupt lane change and forced another vehicle, traveling in the left lane, to veer onto the left shoulder. It was this maneuver that prompted Page to stop Nadler for improper lane use. After pulling Nadler over, Page asked Nadler to accompany him to his patrol car. Page informed Nadler he would receive a warning for his lane change maneuver.
While issuing the warning, Page continued his conversation with Nadler. When asked about his travel itinerary, Nadler provided what Page believed was a cursory and incomplete account in part because Nadler was uncertain of basic details, including when he started his trip. Page testified at the suppression hearing that in his experience, honest travelers generally provide "a little more concrete itinerary of their travels." At one point during the conversation, Nadler asked Page a question about the legality of cell phone use by drivers in Iowa, and indicated he had thought his recent use of a cell phone might have been the reason for the traffic stop. Page considered this question "kind of odd."
Page continued to hold Nadler and question him in the patrol car while conducting a background check on both Nadler and his vehicle. The background check disclosed no prior history of drug or weapon offenses. Page then asked Nadler if there were drugs or contraband in his vehicle, and Nadler indicated there were none. When Page requested consent to search the vehicle, Nadler refused.
At this point, following nine minutes of conversation, Trooper Page decided to summon a canine unit to conduct a "dog sniff" of the vehicle's periphery. Page informed Nadler he was free to go, but his vehicle would be detained until the canine unit could perform its work. The dog and his handler arrived one hour and twenty minutes after Nadler was stopped, and soon "indicated" on the trunk compartment of the vehicle. This "indication" led to a search of the inside of the vehicle's trunk compartment, wherein Page found seventy-five pounds of marijuana.
In advance of trial, Nadler filed a motion to suppress the evidence of drugs found in what he considered to be an illegal and unwarranted further investigatory detention of his vehicle. At the suppression hearing, Page gave the following description of Nadler's demeanor:
He was constantly rubbing his face, drumming his fingers, he was bouncing his legs, tapping his fingers . . . [h]e wouldn't make eye contact with me and he had stuttered breathing. Just appeared to be very nervous.
Page testified Nadler's "nervousness, [and his] travels didn't add up." Moreover, Page concluded Nadler's activities were not consistent with the innocent motoring public and he believed there was criminal activity afoot. On cross-examination, however, Page admitted that nothing about the circumstances he observed prior to his decision to detain Nadler's vehicle for a canine search pointed directly to narcotics trafficking.
The district court concluded Page had reasonable suspicion to continue the detention, found the duration of the detention was reasonable, and denied Nadler's motion to suppress. Nadler waived jury trial and was subsequently convicted. He now appeals from the denial of his motion to suppress, contending (1) Page could not have formed a reasonable suspicion on which to rest his decision to broaden the scope of the investigation to include a canine search, and (2) the duration of the detention was unreasonable.
II. Scope and Standard of Review.
Because of the constitutional implications, we review the denial of Nadler's motion to suppress de novo. State v. Heminover, 619 N.W.2d 353, 356 (Iowa 2000). "In doing so, we independently evaluate the totality of the circumstances shown in the record." State v. Seager, 571 N.W.2d 204, 207 (Iowa 1997). We give deference to the district court's findings of fact and assessments of credibility, but we are not bound by those findings. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). Any evidence obtained in violation of a defendant's Fourth Amendment rights is inadmissible, and should be suppressed regardless of its relevance and probative value. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961); State v. Schrier, 283 N.W.2d 338, 342 (Iowa 1979).
III. Discussion.
It is well settled that a traffic violation supplies an officer with probable cause to stop a vehicle. State v. Aderholt, 545 N.W.2d 559, 562 (Iowa 1996). A police officer may broaden the investigatory purpose of the initial stop where the circumstances presented allow the officer to form a reasonable suspicion that criminal activity is afoot. Id. at 563-64. The length of this further detention must likewise be reasonable. State v. Bergmann, 633 N.W.2d 328, 337 (Iowa 2000). In upholding a one-hour further detention to allow a canine search, the Eighth Circuit Court of Appeals concluded police cannot reasonably be expected to have dogs available for every police officer at every moment. United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994). Whether a seizure by the police should be deemed unconstitutional because it lasted too long depends, in part, on the amount of time required to effect a legitimate law enforcement purpose. Id. Our supreme court has previously held an investigatory detention lasting fifty minutes after a traffic stop was not unreasonable where the delay was necessary to summon and deploy a canine unit and tow truck. Aderholt, 545 N.W.2d at 564. Here, the detention lasted approximately one hour and twenty minutes from the initial stop until the canine unit arrived at the scene. We note that were we to hold the length of this detention, under its particular circumstances, was reasonable, we would be extending considerably the benchmark set in Aderholt. However, we need not reach the length of detention issue because we conclude the record does not reveal a factual basis upon which Trooper Page could have formed a reasonable suspicion to broaden the investigation.
The reasonable suspicion of wrongdoing requisite to justify the further detention of a vehicle may not be inchoate or unparticularized; rather the circumstances must provide an objective basis for the officer's suspicion of wrongdoing. Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 308 (1990). Moreover, the suspicion of wrongdoing must be derived from conduct and observations made prior to the decision to broaden the investigation. United States v. Yang, 345 F.3d 650, 655 (8th Cir. 2003); see also United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993) (indicating that if the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, only then may an officer broaden the inquiry to satisfy those suspicions). Thus any conduct or circumstance that might have confirmed Page's "hunch" about drug or weapons in the vehicle observed subsequent to Page's decision to summon the canine unit may not be used to satisfy the constitutional requirement of reasonable suspicion.
Conduct entirely consistent with innocent behavior may, when taken together, suggest to a trained officer that illegal activity is afoot, such that further investigation is warranted. United States v. Sokolow, 490 U.S. 1, 10, 109 S. Ct. 1581, 1587, 104 L. Ed. 2d 1, 11-12 (1989). Thus, even if individual factors supporting Page's suspicion may be innocently explained, they "must be considered as a whole and in the light of the officer's `experience and specialized training.'" United States v. Ameling, 328 F.3d 443, 448 (8th Cir. 2003) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740, 746 (2002)).
We note in Arvizu, the United States Supreme Court in reversing a suppression order, criticized the court of appeals for its "divide and conquer" approach in evaluating seven factors "in isolation from each other" and for giving them "no weight" because each "was by itself readily susceptible to an innocent explanation." Arvizu, 534 U.S. at 274, 122 S. Ct. at 751, 151 L. Ed. 2d at 747. In making our evaluation of the factors relied on by Officer Page in deciding to detain Nadler's vehicle, we have heeded the caution noted by the Arvizu court and thus we avoid dismissing outright any single factor in isolation. However, we believe our discussion of these factors must necessarily address each factor individually if we are to effectively assess the reasonableness of Page's suspicion. In making our determination in this case, we therefore consider the cumulative suspicion which all of the factors present in this case would engender in an experienced officer.
The district court apparently based its finding of reasonable suspicion primarily on Nadler's nervousness and inability to provide a concrete travel itinerary. The court's ruling noted Nadler had repeatedly asked Page about the effect of the warning. It also noted Page's observation that Nadler exhibited unusual speech and breathing patterns while in the patrol car, and that Nadler also appeared to be "fidgety." We have carefully reviewed the videotape of the traffic stop included in the record, and although the tape does not allow us to make an independent evaluation of Nadler's physical demeanor during the relevant nine minutes of questioning, we believe the audio portion of tape does not support a finding that Nadler's speech or breathing patterns were anything but ordinary before Page announced his decision to summon the canine unit. Moreover, we find any nervousness evidenced by Nadler's speech or breathing patterns was observed by Page after he decided to further detain Nadler's vehicle and deploy the canine unit. Thus, we conclude any nervousness observed by Page cannot by itself serve to satisfy the antecedent reasonable suspicion requirement. Yang, 345 F.3d at 655.
The State contends Page's account of Nadler's (1) bouncing legs, (2) tapping fingers, and (3) failure to make eye contact evidenced extreme nervousness and a reasonable ground for suspicion. Even if we were to credit these observations of Page, we are unable on this record to find Nadler exhibited such nervousness before Page decided to further detain Nadler and announced his decision to summon the canine unit. Furthermore, having found no evidence on the audiotape to support the State's claim Nadler exhibited nervous speech and breathing patterns before Page decided to expand the scope of the stop and invoke a canine search, we are disinclined to give substantial weight to Page's claimed observations of Nadler's physical manifestations of nervousness. We also find Nadler's multiple queries concerning the effect of the warning Page intended to issue did not provide reasonable grounds for suspicion of criminal activity. Although Page promptly informed Nadler of his intent to issue a mere warning, he continued to interrogate Nadler for an extended period and ran a criminal record check on Nadler and his vehicle. While we concede nothing was inappropriate about the interrogation, or the criminal record check, a reasonable motorist may become disconcerted when subjected to extensive questioning and a criminal background check following the issuance of a simple traffic warning. Under the circumstances, Nadler's inquiries about the warning did not constitute a reasonable ground for suspicion of criminal activity. Mesa, 62 F.3d at 162.
"[N]ervousness is generally included as one of several grounds for finding reasonable suspicion and not a ground sufficient in and of itself." United States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995). In Aderholdt, reasonable suspicion to broaden the investigation was found to exist where defendant appeared to be extremely nervous and provided officers an unsatisfactory and inconsistent trip itinerary. Aderholt, 545 N.W.2d at 563. However, the display of nervousness and the degree to which the defendant there was unable to recount a credible itinerary were far more apparent from that record. There, title to the vehicle the defendant claimed to have recently purchased bore the defendant's name, but did not match the registration. Id. at 561. The claim that defendant had purchased airfare in order to fly to Arizona to buy the vehicle was contradicted by the vehicle's appearance because, while serviceable, the vehicle did not appear to be worth the cost of the trip to Arizona. Id. at 562. The travel itinerary itself seemed to signal a common pattern in the transport of narcotics. See United States v. Orsolini, 300 F.3d 724, 728 (6th Cir. 2002) (finding the recent cash purchase of a car in a drug "source" state like Texas indicative of narcotics transport). When informed that the investigating officer suspected narcotics transportation and was thinking of calling for a drug dog to sniff the exterior of the vehicle, the defendant began rolling up the car windows. Aderholt, 545 N.W.2d at 562. When the officer explained that the dog would only concentrate any scent of narcotics that might be inside the vehicle, the defendant abruptly rolled the vehicle's windows back down. Id. Such behavior by Aderholt and his inconsistent travel itinerary were both specifically suggestive of narcotics transport, and supported a finding of reasonable suspicion. The circumstances in the case before this court, however, do not similarly engender the specific suspicion of narcotics transport.
See Aderholt, 545 N.W.2d at 563-64 (holding that an officer may conduct an investigation reasonably related to the purpose of the traffic stop, including "asking for the driver's license and registration, requesting that the driver sit in the patrol car, and asking the driver about his destination and purpose") (Citations omitted).
Likewise, we find little basis for suspicion in either Nadler's query concerning the legality of cell phone use by drivers in Iowa or Nadler's somewhat incomplete travel itinerary. Nadler resides in a state which does not permit drivers to talk on cell phones while operating their vehicles, and a reasonable non-resident motorist given the opportunity to shield himself from future traffic detentions while traveling Iowa's roads might reasonably be expected to ask a state trooper such questions. Similarly, a reasonable motorist might not feel compelled to divulge an exacting description of his travel itinerary in response to Page's investigation of a relatively minor traffic violation. We therefore assign only nominal weight to each of these factors.
The state of New York makes it illegal to operate a motor vehicle on a public highway while using a mobile telephone. N.Y. Veh. Traf. Law § 1225-c (Consol. 2004).
When all grounds for reasonable suspicion advocated by the State are taken together, we find they could only have raised in Page a generalized, vague and subjective "hunch" of criminal activity even when Page's experience and training are properly credited. We therefore find Page lacked reasonable suspicion to expand the scope and duration of Nadler's detention in furtherance of the canine search. White, 496 U.S. at 329, 110 S. Ct. at 2416, 110 L. Ed.2d at 308. Our holding is bolstered by Page's admission that nothing about the circumstances raised a specific suspicion that narcotics were being transported in the vehicle before he decided to expand the scope and duration of the stop and summoned the canine unit. The officer's inability to articulate the general class of criminal activity suspected before expanding the scope and duration of the stop suggests he acted upon precisely the type of inchoate hunch against which the Fourth Amendment is designed to protect. Id. Although we recognize the importance of drug interdiction in combating drug crimes, and we note it is difficult to argue with the results of this particular stop, we conclude on de novo review that Page's expansion of the scope and duration of the stop and the resulting canine search were not supported by a reasonable suspicion of criminal activity. Because Nadler's Fourth Amendment rights were violated by the detention and resulting search, the evidence used to obtain his conviction is the fruit of an unlawful detention and must be suppressed. Schrier, 283 N.W.2d at 342. The district court erred in failing to grant Nadler's motion to suppress. We therefore reverse the district court's suppression ruling, vacate Nadler's conviction and sentence, and remand for further proceedings consistent with our opinion.