On October 1, 2021, the Tenth Circuit Court of Appeals of decided the United States v. Komsonekeo[i], which serves as an excellent review of the law as it pertains to the expanding the scope of the traffic stop to investigate other criminal activity. The relevant facts of Komsonekeo are as follows:
Oklahoma Highway Patrol Trooper Brady Webb stopped Defendant for driving 76 miles per hour in a 70 mile-per-hour zone. While conducting the traffic stop, Webb observed what he believed to be suspicious items in the vehicle including a potent air freshener, numerous energy drinks, and multiple cell phones. Defendant also provided abnormal and inconsistent responses when Webb asked about his travel plans. Based on these items, Webb suspected Defendant was participating in criminal activity and asked for consent to search the vehicle. Defendant declined. Webb then requested a drug dog. The dog alerted to the passenger side of the vehicle. Webb performed a “probable cause search” of the vehicle and found two firearms and a large amount of United States currency in the trunk. A grand jury later indicted Defendant on one count of being a felon in possession of a firearm.”[ii]
Komsonekeo filed a motion to suppress the evidence and argued that the trooper lacked reasonable suspicion to extend the traffic stop and conduct a free-air sniff of his vehicle. The district court, based on the totality of the circumstances, held that reasonable suspicion was present and denied the motion to suppress. Komsonekeo entered a conditional guilty plea with the right to appeal the denial of his motion to suppress. He filed a timely appeal to the Tenth Circuit Court of Appeals.
The issue on appeal was whether the trooper had developed reasonable suspicion of criminal activity, beyond the original reason for the stop, such that it was reasonable to extend the length of the traffic stop call canine for a free-air sniff of the exterior of the vehicle.
The court of appeals first noted the legal principles that are relevant to the issue above. The legal principles were as follows:
- And “a lawful traffic stop may not extend beyond the time reasonably required to effectuate its purpose.” Pettit, 785 F.3d at 1379 (citing Rodriguez v. United States, 575 U.S. 348, 354 (2015); Illinois v. Caballes, 543 U.S. 405, 407 (2005)).[iii]
- Indeed, “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop and attend to related safety concerns.” Rodriguez, 575 U.S. at 354 (internal citations omitted).[iv]
- Authority for the seizure ends when tasks tied to the traffic infraction—i.e., the purpose of the stop—are, or reasonably should have been, completed. (citation omitted).[v]
- During a routine traffic stop, however, “[a]n officer may request a driver’s license and registration, run requisite computer checks, and issue citations or warnings.” Pettit, 785 F.3d at 1379 (citations omitted).[vi]
- We have also allowed an officer to ask about the driver’s travel plans and matters unrelated to the stop. (citations omitted).[vii]
- Continued detention is lawful only if the encounter becomes consensual or if, during the initial lawful traffic stop, the officer develops a ‘reasonable suspicion’ that the detained person is engaged in criminal activity.” (citations omitted).[viii]
- Reasonable suspicion—”a ‘particularized and objective basis for suspecting’ criminal conduct under a totality of the circumstances”—is not an onerous standard. (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).[ix]
- An officer “need not rule out the possibility of innocent conduct, or even have evidence suggesting a fair probability of criminal activity.” (internal quotation marks and citation omitted). Thus “factors consistent with innocent travel may contribute to reasonable suspicion.” Id. (citation omitted).[x]
- So if an officer has “a particularized and objective basis for suspecting an individual may be involved in criminal activity, he may initiate an investigatory detention even if it is more likely than not that the individual is not involved in any illegality.” at 1379-80 (quoting United States v. Johnson, 364 F.3d 1185, 1194 (10th Cir. 2004)).[xi]
The court of appeals then set out to discuss the facts that the district court relied upon in reaching its decision that the that reasonable suspicion was present for the trooper to extend the traffic stop for the canine sniff. The fact discussed were as follows: (1) excessive nervousness, (2) the strong scent of air freshener, (3) the presence of multiple cell phones, (4) unusual travel plans, (5) inconsistent statements, and (6) energy drinks in the vehicle.
First, the court discussed the excessive nervousness of the defendant. The court stated
Generally, nervousness alone does not provide an officer with reasonable suspicion. . . To support a claim of extreme nervousness an officer must provide specific indicia that Defendant exhibited extreme nervousness.[xii]
Here, the court noted that the trooper described Komsonekeo’s abnormal nervousness as indicated by a cracking voice, tight grip on the steering wheel, and shaking hands as he gave the trooper his license. The court also noted that they could observe this nervous behavior on the trooper’s video recording of the incident. The court then stated that, because the trooper gave a detailed description of the nervousness, it is a relevant factor to consider in totality of the circumstances regarding reasonable suspicion.
Second, the court discussed the use of air fresheners. The court stated
The trooper testified that he knew that people often use air fresheners to mask the odor of drugs. He also explained that the air freshener in Komsonekeo’s car was so strong that it caused his eyes to water and nose to burn. As such, the court stated that the air freshener was a relevant factor to consider in the totality of the circumstances regarding reasonable suspicion.
Third, the court discussed the presence of multiple cell phones. The court stated
The presence of multiple cell phones can lead to reasonable suspicion where the officer’s knowledge and experience give him reason to know that those engaged in criminal activity commonly use disposable and hard to trace phones. United States v. Jeter, 175 F. App’x 261, 265 (10th Cir. 2006) (unpublished) (citing United States v. Villa-Chaparro, 115 F.3d 797, 802 (10th Cir. 1997); United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir. 2005); United States v. Gandara-Salinas, 327 F.3d 1127, 1130 (10th Cir. 2003)) (noting the presence of multiple cell phones combined with air freshener and tattoos reflecting possible gang affiliation provided reasonable suspicion to justify extended questioning).[xiv]
The trooper also testified that the presence of multiple cell phones, including cheaper or older phones like flip phone possessed by the defendant, are an indicator of possible criminal activity. Thus, the multiple phones are relevant in the totality of the circumstances regarding reasonable suspicion.
Fourth, the court considered the unusual travel plans explained by Komsonekeo. The court noted that Komsonekeo stated that, “he flew one way from California to Arkansas” and then was driving “roundtrip from Fayetteville to Chicago and then back to California from Arkansas.”[xv] While these travel plans do not themselves suggest criminal activity, the court stated that they are a relevant factor in the totality of the circumstances regarding reasonable suspicion.
Fifth, the court considered Komsonekeo’s inconsistent statements. The trooper explained that he believed the defendant’s statements about whom he met in Chicago were vague and inconsistent, in that first he said he met friends, then, he said it was family, but he would not identify the family members. As such, this was a relevant consideration in the totality of the circumstances regarding reasonable suspicion.
Sixth, the court discussed the presence of energy drinks. The court stated that this was not a relevant factor to consider regarding reasonable suspicion. Specifically, the court stated
[W]e do not assign any weight to Webb’s assertion that the energy drink containers contributed to reasonable suspicion because an officer may find such caffeinated beverages in the vehicle of any innocent traveler. See United States v. Simpson, 609 F.3d 1140, 1152 (10th Cir. 2010) (giving no weight to the presence of energy pills).[xvi]
The court of appeals then held that, taken individually, the facts do not provide reasonable suspicion; however, taken in the totality of the circumstances, the facts do support reasonable suspicion to extend the detention and scope of the traffic stop.
Therefore, the court of appeals affirmed the denial of the motion to suppress.
[i] No. 20-6064 (10th Cir. Decided October 1, 2021 Unpublished)
[ii] Id. at 2
[iii] Id. at 4
[iv] Id. at 5
[x] Id. at 5-6
[xii] Id. at 6-7
[xiii] Id. at 7
[xiv] Id. at 8
[xv] Id. at 9
[xvi] Id. at 8