LUCERO, Circuit Judge.
This case asks us to determine whether, under the totality of circumstances, Kansas Highway Patrol Officers Richard Jimerson and Dax Lewis (the "Officers") had reasonable suspicion to detain and search the vehicle of Peter Vasquez. In particular, this case presents the question of what weight to afford the state citizenship of a motorist in determining the validity of a search. Vasquez alleges that after stopping him for a traffic violation, the Officers detained him and searched his car without reasonable suspicion. As justification, the Officers assert, among other indicators detailed herein, Vasquez was a citizen of Colorado, driving alone on Interstate 70 from Colorado through Kansas, in the middle of the night, in a recently purchased, older-model car.
The district court concluded the Officers were entitled to qualified immunity because Vasquez's asserted right was not clearly established. We disagree. We conclude that the Officers acted without reasonable suspicion and violated clearly established precedent. In particular, we conclude that the Officers impermissibly relied on Vasquez's status as a resident of Colorado to justify the search of his vehicle. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand to the district court for further proceedings.
On December 16, 2011, the Officers saw Vasquez's 1992 BMW sedan driving eastbound on I-70 in Wabaunsee County, Kansas. Jimerson could not read Vasquez's temporary tag, which was taped to the inside of the car's tinted rear window. Because of this, Jimerson turned on his emergency lights and Vasquez pulled to the side of the road. Jimerson approached the car, noted that Vasquez was its sole occupant, and observed blankets and a pillow in the front passenger seat and back seat of the car. Based on the arrangement of the back seat, Jimerson thought something large was obscured under the blankets, and he asked Vasquez if anyone else was in the car. Vasquez told him no. Jimerson then asked Vasquez where he was heading and Vasquez responded, "Elkton, Maryland." Vasquez also told Jimerson that he was from Colorado originally, but had just moved to Maryland. Jimerson asked whether Vasquez had any family in Maryland to which Vasquez responded, "Just my daughter." Jimerson then took Vasquez's driver's license and proof of insurance and returned to the patrol car.
In the car, Jimerson told Lewis that Vasquez was notably nervous and that there were items covered in the front and back seat of the car. Jimerson sent Lewis to check on Vasquez, to "see how nervous he [was]" and to "get a feel for him." Upon returning, Lewis told Jimerson that Vasquez "look[ed] all scared to death." Jimerson then checked Vasquez's proof of insurance which indicated Vasquez also had insurance for two newer cars. Jimerson, suspecting Vasquez was transporting illegal drugs, called Trooper Jason Edie to bring a trained drug dog.
Lewis returned to Vasquez and asked where he worked. Vasquez responded "We own a store called Boutiques at Brighton." Lewis also asked why Vasquez was not driving one of the newer cars listed on his proof of insurance. Vasquez stated that he bought the newest car for his girlfriend. Further, Vasquez told Lewis that he was moving to Maryland, which prompted Lewis to ask "Where's all the stuff if you're moving?" Vasquez replied that he already had moved most of his belongings.
After issuing a warning and walking away, but before getting back into his patrol car, Lewis returned and inquired if he could ask a couple more questions, to which Vasquez consented. Lewis asked if there were any drugs in the vehicle, which Vasquez denied. Lewis then asked if he could search the car and Vasquez refused. After the refusal, Lewis said that he suspected Vasquez was "probably involved in a little criminal activity here" and detained him. Trooper Edie arrived with the drug dog about fifteen minutes later. The Officers' subsequent search of the vehicle did not reveal anything illegal.
On February 28, 2012, Vasquez filed this lawsuit against the Officers under 42 U.S.C. § 1983, arguing that they violated his Fourth Amendment rights by detaining him and searching his car without reasonable suspicion. The district court initially denied the Officers' motion to dismiss, concluding that Vasquez had stated sufficient facts in his complaint to properly allege a violation of his Fourth Amendment rights. However, after discovery, the district court granted the Officers' motion for summary judgment on the basis of qualified immunity. It held that Vasquez failed to show that the Officers' conduct violated clearly established law, and as such, he could not overcome their immunity from suit. Vasquez timely appealed.
We review the grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party.
"The Fourth Amendment prohibits unreasonable searches and seizures by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest."
An investigative detention must be temporary, lasting no longer than necessary to effectuate the purpose of the stop, and the scope must be carefully tailored to its underlying justification.
This Court has repeatedly admonished law enforcement that once an officer has been assured that a temporary tag is valid, he "should ... explain[] to Defendant the reason for the initial stop and then allow[] her to continue on her way without requiring her to produce her license and registration."
The Officers argue their observations other than the car's license plate justified extending the length of the seizure.
We now turn to whether the Officers had reasonable suspicion to justify the search of Vasquez's car. They argue the following factors created reasonable suspicion: (1) Vasquez was driving alone late at night; (2) he was travelling on I-70, "a known drug corridor"; (3) he was from Colorado and was driving from Aurora, Colorado, "a drug source area"; (4) the
Though we analyze these facts under the totality of the circumstances,
And we cannot think of a scenario in which a combination of otherwise innocent factors becomes suspicious because the individual is from one of the aforementioned twenty-five states or the District of Columbia. Even under the totality of the circumstances, it is anachronistic to use state residence as a justification for the Officers' reasonable suspicion. Absent a demonstrated extraordinary circumstance, the continued use of state residency as a justification for the fact of or continuation of a stop is impermissible.
Some other factors also weigh little in our totality of the circumstances analysis. "[W]e have repeatedly held that nervousness is of limited significance in determining reasonable suspicion and that the government's repetitive reliance on ... nervousness ... as a basis for reasonable suspicion ... must be treated with caution."
In sum, Vasquez's conduct does not create reasonable suspicion. What we have here is a driver traveling from Colorado to Maryland, on a major interstate; in an older car despite owning a newer car; with blankets and a pillow obscuring items in the back seat; who did not have items visible that an officer expected to see; and who was and continued to be nervous when pulled over by officers late at night. Such conduct does not raise an inference of reasonable suspicion. Thus, we conclude that the Officers violated Vasquez's Fourth Amendment rights in searching his car.
We next turn to whether it was clearly established, at the time of the incident, that the Officers' actions violated Vasquez's constitutional rights. "A right is clearly established if it would be clear to a reasonable officer that his conduct was unlawful in the situation."
We have previously held, under strikingly similar circumstances, that an officer — in fact, one of the officers before us now — did not have reasonable suspicion to further detain a defendant after issuing a speeding warning.
In both cases, Jimerson detained an individual because: he thought the car was unusual (Vasquez's older car and Wood's rented car); the car had "unusual" but typical items in it (Vasquez's items covered by blankets and Wood's trash wrappers and maps); and the driver was nervous, leaving a drug source state, and passing through Kansas. The facts of these cases are almost indistinguishable.
The district court erred in concluding that the differences between Wood and this case were significant.
For the foregoing reasons, we
This case presents a close call on reasonable suspicion. But the essence of qualified immunity is to give government officials protection in resolving close calls in reasonable ways. Because the majority employs a divide-and-conquer analysis specifically rejected by the Supreme Court and because Vasquez cannot identify clearly established law necessary to overcome qualified immunity, I respectfully dissent.
When the defense of qualified immunity is raised, we require the plaintiff to demonstrate (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct. Vasquez challenges that his detention beyond the original traffic stop violated the Fourth Amendment. But such detention is permissible where the officer has an "objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring...." United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994).
"[R]easonable suspicion is not, and is not meant to be, an onerous standard." United States v. Pettit, 785 F.3d 1374, 1379 (10th Cir. 2015) (quoting United States v. Kitchell, 653 F.3d 1206, 1219 (10th Cir. 2011)). An officer need only have "a `particularized and objective basis for suspecting' criminal conduct under a totality of the circumstances." Id. (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).
The majority, in effect, takes the district court finding and concludes that 0 + 0 + 0 cannot = reasonable suspicion. Of course, a series of completely innocent conduct does not create reasonable suspicion. But the Supreme Court instructs us not to employ a "divide-and-conquer analysis" and requires us to consider the "totality of the circumstances." See United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).
In Arvizu, a particularly instructive case, the Court reversed the Ninth Circuit's determination that a border patrol agent had no reasonable suspicion to detain a minivan. The Ninth Circuit had independently examined ten factors supporting reasonable suspicion and determined that seven of them should not be given much weight because those factors were each readily susceptible to innocent explanation. Id. at 274, 122 S.Ct. 744. In rejecting this approach, the Court held that even if each factor is consistent with innocent travel, factors when taken together can warrant further investigation. Our cases agree. See, e.g., Pettit, 785 F.3d at 1380 ("We evaluate each of the factors supporting reasonable suspicion separately and in aggregate."); United States v. Padilla-Esparza, 798 F.3d 993, 999 (10th Cir. 2015); United States v. Santos, 403 F.3d 1120, 1133-34 (10th Cir. 2005); United States v. Quintana-Garcia, 343 F.3d 1266, 1270-71 (10th Cir. 2003).
Under this analysis, no factor can be given a constant weight of zero in a reasonable suspicion equation. See, e.g., Arvizu, 534 U.S. at 275-76, 122 S.Ct. 744 ("We think it quite reasonable that a driver's slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona)."). Vasquez's story struck the officers as unusual, and when a police officer encounters a series of unusual facts, each factor no longer carries a weight of zero; together they may provide a "particularized and objective basis" to suspect illegal activity. Id. at 273, 122 S.Ct. 744 (quoting Cortez, 449 U.S. at 417-18, 101 S.Ct. 690 (1981)).
Mullenix v. Luna, ___ U.S. ___, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (internal brackets, citations, and quotations omitted).
Vasquez points to no Supreme Court or Tenth Circuit case with sufficiently analogous facts. He and the majority rely on a case where we held the police lacked reasonable suspicion where the driver "had fast food wrappers and other trash in his car, he had open maps out, he misidentified the place where he picked up his rental car, and he described somewhat expensive travel plans despite being temporarily employed." United States v. Toledo, 139 F.3d 913 (10th Cir. 1998) (unpublished table opinion) (describing the holding of United States v. Wood, 106 F.3d 942 (10th Cir. 1997)).
I disagree that Wood clearly defines the absence of reasonable suspicion here, especially given the multiple times we have affirmed district court decisions finding reasonable suspicion while citing and distinguishing Wood. Consider three examples:
(1) United States v. $49,000.00 in U.S. Currency, More or Less, 208 Fed.Appx. 651 (10th Cir. 2006). Officers pulled over an afternoon driver on Interstate 70 in Kansas. The driver lived in Los Angeles but rented a car from Detroit, was nervous, and had a prior arrest for possession of marijuana with intent to distribute.
(2) Toledo, 139 F.3d 913. Officers also pulled over an afternoon driver on Interstate 70 in Kansas. The driver gave inconsistent accounts of his travel plans to explain why he was headed to North Carolina but the rental car needed to be returned in California. The car smelled of air freshener, the defendant had a prior drug conviction, and acted nervously.
(3) United States v. Williams, 271 F.3d 1262 (10th Cir. 2001). Again, this case involved an afternoon driver on Interstate 70 in Kansas. The driver was nervous, had a two-way, short-range radio despite attesting to be traveling alone, was not named in
Our treatment of Wood in this line of cases "reveal[s] the hazy legal backdrop," against which Officers Jimerson and Lewis acted. Mullenix, 136 S.Ct. at 309. The officers encountered a sufficiently different factual scenario than in Wood, especially in light of almost twenty years of cases distinguishing it.
Most notably, the two cases differ in the degree of unusual travel plans. The court in Wood declined to give any weight to Wood's "unusual" travel plans — driving a rental car from Sacramento to Topeka. 106 F.3d at 946-47. As a preliminary matter, this reasoning puts Wood on shaky ground. In Wood, we "stripp[ed] away the factors which must be disregarded because they are innocuous," 106 F.3d at 948, which is precisely what the Supreme Court warned against in Arvizu. Regardless, Vasquez's travel plans are sufficiently distinct as to allow a reasonable officer to be more suspicious. Vasquez asserted he was moving, but no items in his car aligned with his story. Vasquez was driving in the middle of the night, apparently sleeping in his car. Vasquez was driving a newly-purchased twenty-year-old car, despite owning a new car, and had a flimsy, even implausible, explanation as to why.
Because reasonable officers may differ regarding whether Vasquez's detention violated the Fourth Amendment, I would affirm the district court's finding of qualified immunity.
R., Vol. I at 25-26.