Successful Evidence Suppression Motion Shows Cops Think Pretty Much Everything Is ‘Suspicious’

Legal Issues

from the being-human-is-reasonably-suspicious dept

Law enforcement officers really enjoy performing warrantless searches. To get to that point, however, they need to be in certain places (airports, roadsides) and have one certain thing: “reasonable suspicion.” But what seems “reasonable” to someone like you or me is nowhere near what seems “reasonable” to a law enforcement officer.

For instance, behold the many contradictions contained in the list law enforcement and the TSA use to determine which passengers are “suspicious:”

• Being the first person off a plane
• Being the last person off a plane
• Someone authorities believe has tried to blend in to the middle of exiting passengers
• Booking a nonstop flight
• Booking a flight with a layover
• Traveling alone
• Traveling with a companion
• People who appear nervous
• People who appear “too calm”

Add to that the list of things law enforcement has claimed (successfully or otherwise) is suspicious behavior:

• Refusing to consent to a search
• Invoking your constitutional rights
• Fidgeting while waiting for a cop to finish writing a citation
• Sitting in a parked car for 10 seconds without doing anything
• Smoking cigarettes in a vehicle
• Driving without engaging in any moving violations
• Using a taped-shut box to send something via FedEx
• Muscular dystrophy

Those are only a small sampling of the many, many things cops have called “reasonably suspicious.” Thanks to recent decision finding in favor of a criminal defendant, we have another list to add to these lists of “reasonably suspicious” behavior.

In December 2021, Michael Contreras was pulled over by Virginia State Trooper Joseph Miller. One thing led to another as pretextual stops often do. It culminated in a warrantless search of the car, during which 17 kilos of cocaine were discovered. But to get to that point, the trooper had to ask a lot of questions unrelated to the stop, delay it long enough to get a drug dog to the scene (the dog did not alert, by the way) and finally use a handy checklist to decide things were reasonably suspicious enough to engage in a warrantless search.

And here’s where it gets really ridiculous. The checklist used by Trooper Joseph Miller was admitted into evidence. Here it is in all of its glory, as presented in the federal court decision [PDF]:

If you can’t see the image (or read the fine print), you’re in luck! Criminal defense lawyer John Wesley Hall has typed up the full list for his post on this decision at his website, FourthAmendment.com.

INDICATORS
☐ Abnormal Sweating
☐ Air Fresheners (Multiple)
☐ Anomalies (Explain)
☐ Anxiety
☐ Arm/Hand Gestures
☐ Attire (Inappropriate)
☐ Audible/Deep Sighs
☒ Avoidance
☐ Bite/Chew/Lick Lips
☒ Body Posture (Explain)
☐ Chain Smoking
☒ Conflicting Stories
☒ Cost Effective
☐ Currency
☐ Deliberate Speech
☐ Difficulty Swallowing
☐ Disassociate from Vehicle
☒ Disclaimers (FOP, Etc)
☒ Evasiveness
☒ Excessive Nervousness
☐ Eye Contact
☐ Facial Expressions
☐ Fake Smile/laughter
☒ Fast Food/Snacks Excessive
☒ Fatigued
☒ Feigned Memory Loss
☐ Hand Written Directions
☐ Heavy / Holding Breath
☐ Hesitation (Itinerary, Etc.)
☐ High Mileage
☐ Implausible Itinerary
☐ Single Key
☒ Luggage (Disproportionate)
☐ Map/GPS
☒ Multiple Cell Phones
☐ New Paint
☒ Obvious Shaking
☒ Older Car Recently Registered
☒ Overtly Cooperative
☐ Owner Not Present
☐ Pulsating Artery
☒ Quick Turn Around in Travel
☐ Rental Vehicle
☐ Rigid/Frozen
☐ Skips Around Abruptly
☒ Source city/state
☐ Uses qualifiers
☐ Voice Inflection/Tone
☐ Weapons
☐ Yawns Continuously
☐ BLOC/CCH/EPIC/NADDI5
☐ Other (Note in Narrative)

A whole bunch of regular human behavior being classified as indicators of suspicion. “High mileage” and “older car recently registered” turn plenty of legit used car purchases into blank checks for warrantless searches. Just an insane list. “Arm/hand gestures.” “Currency.” “Map/GPS” is somehow suspicious. But so is “hand written directions.” I guess every driver is just supposed to know exactly where their destination is at all times.

The court doesn’t think much of this list. It points out a bunch of these so-called “indicators” of suspicion have previously been rejected by precedential decisions. (The 4th Circuit Appeals Court’s Bowman decision is specifically cited.)

As the court points out, Trooper Miller freely admits he illegally extended the stop in violation of the Supreme Court’s Rodriguez ruling. (Emphasis in the original.)

Trooper Miller’s traffic infraction investigation was not in any way prolonged to investigate suspicion of criminal activity unrelated to the traffic stop until the point in time when Trooper Miller told Alvarado that it was:

[N]ow you’re gonna be sitting here a little bit longer than what you probably need to be, okay, because a narcotic K9 is going to come and run around the pickup, alright .

The only way to salvage this Fourth Amendment violation was to have observed enough suspicious behavior to justify the extension of the stop. Here’s what the government claimed justified this incursion on Contreras’ rights:

In its supplemental brief filed after the hearing, the government clarified its position that seven factors, taken together, gave rise to reasonable suspicion that criminal activity— specifically drug trafficking was afoot: (1) the presence of the vacuum-sealer packaging material; (2) Contreras’s and Alvarado’s nervousness; (3) items in the truck indicating that they had traveled a long distance without breaks; (4) Contreras’s and Alvarado’s perceived suspicious and inconsistent accounts of recent travel; (5) the high mileage on the truck’s odometer; (6) the fact that the couple had traveled to Houston, a “source location” for illegal drugs; and (7) the presence of a “Thin Blue Line” decal on the rear window.

The court notes the “vacuum-sealer packaging” could not be part of the reasonable suspicion matrix because it was not discovered until after the search of the truck had commenced. It points to the ridiculous checklist above and the attached narrative from the trooper as indicative of the officer trying to work his way from his illegal search back into the good graces of the Fourth Amendment.

The trooper only noted the vacuum sealer at the end of the traffic stop narrative where he listed everything else he had discovered. He never mentioned the sealer to the other officers who arrived at the scene prior to the search. Considering its after-the-fact appearance in the officer’s narrative, the court says this suspected contraband cannot be used as part of the reasonable suspicion matrix.

The rest of the matrix is garbage, too.

Here, as in Bowman and DiGiovanni, the video does not reveal Alvarado’s level of nervousness to be greater than can be expected of a young person in otherwise similar circumstances, and her nervousness does not appear to increase (as the driver’s did in Mason). And the avoidance of eye contact or staring straight ahead is also not persuasive in and of itself since it can be “just as likely to be a show of respect and an attempt to avoid confrontation,” and in other cases the government has argued “just the reverse: that it is suspicious when an individual looks or stares back at officers.”

The court dispenses of these claims as well, singling out the trooper’s asinine checklist.

There was also no testimony from Trooper Miller about Interstate 81 being a known route for drug traffickers and, as explained below, Contreras’s and Alvarado’s travel stories were not entirely inconsistent. Regarding the government’s supplemental argument that this was indicative of a “turnaround trip,” Contreras told Trooper Miller that the couple had been in Austin visiting family, and that they had been there for a week (see ROI at 2; Video 8:58–9:09). There is no indication that Trooper Miller factored the drive time and distance into his determination that their travel stories were inconsistent.

[…]

Although Trooper Miller checked the “Quick Turnaround in Travel” box on his Contact Report Form B, the court is not persuaded by this tick mark for two reasons. First, not all the boxes on Form B were properly checked. For example, the “older car recently registered” box was erroneously checked. Second, Trooper Miller did not check all the boxes that he arguably could have.

As for the “source city” bullshit the government hastily added at the last minute, the court has this to say about turning all interstate travel into possible drug trafficking:

Trooper Miller also testified that Houston is a “source location” for narcotics and criminal activity, without providing a specific basis for that belief. Whatever the basis of Trooper Miller’s belief presumably his training and experience—the court simply cannot accept this statement at face value. Today, most major metropolitan areas of the United States are source cities for illegal drugs. Houston is no more deserving of this appellation than any other large city, and interstate travel from Houston or Austin is no more indicative of drug trafficking than travel from Los Angeles, New York, Miami, Atlanta, Chicago, Denver, or Detroit

Wrapping things up, the court discusses the supposedly suspicious “Thin Blue Line” decal — one sported by plenty of officers’ personal vehicles as well as by those who family members are officers or otherwise have decided to cast their lot with the people that, um, apparently find these decals “suspicious.”

Finally, the government argues that the presence of a pro-police decal on the truck’s back window was suspicious. Although Trooper Miller testified that drug traffickers also use military stickers or religious memorabilia as “disclaimers,” the court is not convinced. If the truck had a “Legalize It” sticker, would that have been an indicator as well? Just as with the eye-contact-as-nervousness indicator, the government cannot have a factor cut in its favor any way it is sliced. The court gives the presence of the decal no weight on its own. It is “entirely consistent with innocent travel” such that it does not give rise to reasonable suspicion.

Trooper Miller may be a great officer with a keen mind. Even the court expresses some admiration for him. But being good at the job also means following the rules. He didn’t do that here. And that just cost him his drug case.

Trooper Miller is an accomplished police officer with 19 years of total law-enforcement experience, 15 years of drug interdiction assignments, and tens of thousands of vehicle stops. Contreras rightly concedes that this trooper’s hunch is well tuned. And Trooper Miller was inarguably correct; someone in that truck was trafficking a large quantity of cocaine. But without more, a hunch—however well-tuned and correct it may ultimately turn out to be—is not sufficient under the Fourth Amendment to prolong a vehicle stop to investigate criminal activity.

If you want to keep your wins, you have to play fair. What you can’t do is treat the Fourth Amendment as something only available to people you don’t suspect (correctly or incorrectly) of wrongdoing, no matter how long and internally contradictory your “reasonable suspicion” checklist is.

Filed Under: 4th amendment, joseph miller, michael contreras, pretextual stops, suspicion, warrants