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Date: 05-13-2015

Case Style: United States of America v. Michael E. Pettit

Case Number: 14-4043

Judge: Kelly

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Utah (Salt Lake County)

Plaintiff's Attorney: Diana Hagen, Assistant United States Attorney (Carlie Christensen, Acting United
States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff -
Appellee.

Defendant's Attorney: Daphne A. Oberg, Assistant Federal Public Defender (Kathryn N. Nester, Federal
Public Defender, and Scott Keith Wilson, Assistant Federal Public Defender, with
her on the briefs), Salt Lake City, Utah, for Defendant - Appellant.

Description: In 2013, Defendant-Appellant Michael E. Pettit was indicted on one count
of possession of cocaine with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1), after police discovered 2.5 kilograms of cocaine hidden in a vehicle
he was driving. Mr. Pettit filed a motion to suppress, which the district court
denied following an evidentiary hearing. United States v. Pettit, No.
2:13CR00286, 2013 WL 5494664 (D. Utah Oct. 2, 2013). A jury found Mr. Pettit
guilty, and he was sentenced to ten years of imprisonment followed by eight years
of supervised release.
On appeal, Mr. Pettit asserts that the district court erred by denying his
motion to suppress because the police improperly extended a lawful traffic stop
based on factors failing to give rise to objectively reasonable suspicion of
criminal activity. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
Background
On the afternoon of April 17, 2013, a Utah Highway Patrol Trooper,
Thomas Simpson, observed Mr. Pettit drive across the fog line multiple times. He
was traveling approximately 45 miles per hour and had just passed through a
“snow burst” on mountainous terrain. The snow had subsided, and the roads were
dry.
- 2 -
The trooper stopped Mr. Pettit at 3:32 p.m. and approached the vehicle.
Mr. Pettit stated that he was “not from around here” and that the snow burst had
“scared the hell out” of him. I R. 22, II R. 82–83. The trooper explained he had
stopped Mr. Pettit because he had crossed the fog line and asked for his license
and registration. Mr. Pettit stated that he was not the owner of the vehicle, and he
handed over the registration but not his driver’s license. The trooper asked who
the owner of the car was, and Mr. Pettit gave the first name of the woman listed
on the registration, Annette. During this exchange, Mr. Pettit’s lower body was
“kind of moving nervously.” I R. 23.
The trooper asked Mr. Pettit for details about his travel plans, including
where he was coming from and where he was going. Mr. Pettit explained that he
had flown to California to pick up his friend’s car and drive it back to Kansas.
The trooper then asked Mr. Pettit if he had any luggage, since he did not see any
bags in the passenger compartment. The trooper believed it was abnormal for a
person driving across the country to have no bags, snacks, or garbage next to him
in the car. II R. 84. Mr. Pettit indicated that he had a bag in the trunk, along with
luggage belonging to his friend. He then said to the trooper, “[Y]ou make me
kind of nervous.” Id. at 86. The trooper asked for permission to look in the
trunk, and Mr. Pettit agreed.
Mr. Pettit pulled the release for the trunk, and the trooper asked Mr. Pettit
to stay seated and requested his driver’s license a second time. Mr. Pettit
- 3 -
repeated that the trooper was making him nervous. Id. at 92. The trooper
testified that “[m]ost people don’t tell me they are nervous, but he told me twice
within 25 seconds.” I R. 32. Mr. Pettit began flipping through his wallet to
produce his driver’s license. The trooper noticed that Mr. Pettit passed over a
California license before removing a Missouri license. As Mr. Pettit handed over
the Missouri license, the trooper noticed that “[h]is whole arm shook very
nervously, which is different than the general public.” II R. 85. According to the
trooper, he has had extensive experience with motorists and, while many people
display small jitters when pulled over, generally “their whole arm is not shaking
nervously.” Id. at 86. On Mr. Pettit’s Missouri license, the label “Nondriver”
was clearly printed. Id. at 87.
The trooper then confirmed that he had Mr. Pettit’s consent to check the
bags in the trunk, and he spent about one minute conducting a “pat search” and
looking for anything “that the driver would be nervous about after he told me he
was nervous”—such as weapons, drugs, or bodies. Id. at 88. He did not find any
contraband during this cursory inspection, and he returned to his patrol car to run
a driver’s license check for Missouri and California while he filled out a citation.
Dispatch indicated that both of Mr. Pettit’s licenses were suspended. However,
everything else was normal; the vehicle had not been reported stolen, and it was
properly registered and insured.
- 4 -
After processing a citation and completing some paperwork, the trooper
returned to the vehicle at 3:43 p.m. At this time, the trooper did not return Mr.
Pettit’s driver’s license or hand him a citation. Instead, he questioned Mr. Pettit
further. First, he asked how well Mr. Pettit knew the owner of the car, to which
Mr. Pettit replied that he had known her for around three-and-a-half years. He
asked whether Mr. Pettit was aware that his Missouri and California licenses were
suspended, and Mr. Pettit said that he was not. He asked for additional details
about Mr. Pettit’s travel plans, and Mr. Pettit stated that he offered to help pick
up his friend’s car because she had to fly out to help her father deal with a health
issue. Mr. Pettit did not know why his friend had initially driven her car to
California. The trooper testified that he “found it very suspicious that a friend of
three years had called him to go pick up a car and Mr. Pettit never knew why she
was down there to begin with.” Id. at 94.
The trooper then asked Mr. Pettit for consent to search the entire car, which
Mr. Pettit provided. When the trooper asked Mr. Pettit whether his friend had
paid for him to fly out to California to pick up the car, Mr. Pettit responded that
“they did.” Id. at 96. During the trooper’s search, he radioed dispatch to request
a criminal records check, which revealed that Mr. Pettit had multiple arrests for
felonies and other drug offenses. The trooper then discovered $2,000 in a
suitcase containing male clothing in the trunk. Mr. Pettit said the cash was from
- 5 -
his “old man.” Id. at 97. According to the trooper, large amounts of cash can
suggest the transportation of contraband such as narcotics. Id. at 97–98.
While the trooper continued his search, two canine officers arrived on the
scene to assist. At 3:58 p.m., fifteen minutes after the trooper completed Mr.
Pettit’s original traffic citation, a drug detection dog began sniffing the outside of
the vehicle and immediately alerted to the scent of drugs. A further search
revealed over 2.5 kilograms of cocaine hidden in a spare tire in the trunk.
Discussion
On appeal, Mr. Pettit argues that the district court erred in denying his
motion to suppress the drug evidence because the trooper unconstitutionally
extended his detention based on “hunches and unjustified generalizations.” Aplt.
Br. 6–7. He argues that the district court applied a “truncated form of totality
review.” Id. at 7. Rather than addressing the “disconnected nature of the
trooper’s generalizations,” the court added up the trooper’s stated factors
“numerically” to find reasonable suspicion. Id. He contends that, viewing the
factors properly and in totality, the court should have found that the extended
detention was not warranted.
When reviewing a motion to suppress, we view the evidence in the light
most favorable to the government, accept the district court’s findings of fact
unless they are clearly erroneous, and review de novo the ultimate question of
- 6 -
reasonableness under the Fourth Amendment. United States v. Vazquez, 555 F.3d
923, 927 (10th Cir. 2009). We defer to all reasonable inferences made by law
enforcement officers in light of their knowledge and professional experience
distinguishing between innocent and suspicious actions. United States v. Winder,
557 F.3d 1129, 1133 (10th Cir. 2009); United States v. Salzano, 158 F.3d 1107,
1111 (10th Cir. 1998).
The Fourth Amendment guarantees the right of the people to “be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV; see also Mapp v. Ohio, 367 U.S. 643, 655–56
(1961) (incorporating the Fourth Amendment’s provisions against the states
through the Fourteenth Amendment). A traffic stop is a seizure for purposes of
the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979); United
States v. Laughrin, 438 F.3d 1245, 1247 (10th Cir. 2006).
It is well-established that, during a routine traffic stop, an officer may
request a driver’s license and registration, run requisite computer checks, and
issue citations or warnings. United States v. Pena-Montes, 589 F.3d 1048,
1059–60 (10th Cir. 2009); United States v. Rosborough, 366 F.3d 1145, 1148
(10th Cir. 2004). An officer may also inquire about the driver’s travel plans,
United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001), and ask about
matters unrelated to the stop, Muehler v. Mena, 544 U.S. 93, 101 (2005).
- 7 -
Generally, an officer may also request consent to search a driver’s luggage.
Florida v. Bostick, 501 U.S. 429, 435 (1991).
However, a lawful traffic stop may not extend beyond the time reasonably
required to effectuate its purpose. Rodriguez v. United States, 135 S. Ct. 1609,
__ (2015); Illinois v. Caballes, 543 U.S. 405, 407 (2005). 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. United States v. Bradford, 423 F.3d 1149,
1156–57 (10th Cir. 2005); Rosborough, 366 F.3d at 1148.
The Supreme Court has defined “reasonable suspicion” as a “particularized
and objective basis for suspecting” criminal conduct under a totality of the
circumstances. United States v. Cortez, 449 U.S. 411, 417–18 (1981). “Although
the government bears the burden of proving the reasonableness of an officer’s
suspicion, reasonable suspicion is not, and is not meant to be, an onerous
standard.” United States v. Kitchell, 653 F.3d 1206, 1219 (10th Cir. 2011).
Reasonable suspicion requires “considerably less” than a preponderance of the
evidence and “obviously less” than probable cause to effect an arrest. United
States v. Esquivel-Rios, 725 F.3d 1231, 1236 (10th Cir. 2013). “To satisfy the
reasonable suspicion standard, an officer need not ‘rule out the possibility of
innocent conduct,’ or even have evidence suggesting ‘a fair probability’ of
criminal activity.” Id. (quoting Poolaw v. Marcantel, 565 F.3d 721, 736 (10th
- 8 -
Cir. 2009)). Indeed, we have held that factors consistent with innocent travel may
contribute to reasonable suspicion. United States v. Valles, 292 F.3d 678, 680
(10th Cir. 2002). As long as 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.” United States v. Johnson, 364 F.3d 1185, 1194
(10th Cir. 2004).
Since Mr. Pettit crossed over the fog line multiple times in violation of
traffic laws, the parties agree that the initial stop was lawful. They also agree that
the initial stop concluded at 3:43 p.m., when the trooper returned to Mr. Pettit’s
vehicle after completing his traffic citation. At that time, the trooper could have
handed Mr. Pettit his citation, returned his driver’s license, and informed him that
he was free to leave. Instead, the trooper questioned Mr. Pettit further and
requested consent to conduct a more thorough search of the vehicle. Because the
trooper never returned Mr. Pettit’s documents, the encounter did not become
consensual. United States v. Guerrero-Espinoza, 462 F.3d 1302, 1308–09 (10th
Cir. 2006). Thus, the parties’ central disagreement is whether, by 3:43 p.m.,
reasonable suspicion existed that Mr. Pettit was engaged in illegal conduct,
warranting his extended detention. If Mr. Pettit was detained beyond 3:43 p.m.
without reasonable suspicion, then the fruits of the subsequent search are
inadmissible. See Wong Sun v. United States, 371 U.S. 471, 484 (1963).
- 9 -
We evaluate each of the factors supporting reasonable suspicion separately
and in aggregate.1 Salzano, 158 F.3d at 1111. Although standing alone each of
these factors is subject to possible innocent explanation, in aggregate they
demonstrate that the trooper had objectively reasonable suspicion to extend Mr.
Pettit’s detention. United States v. Arvizu, 534 U.S. 266, 277–78 (2002).
A. Nervousness
Mr. Pettit first challenges his apparent nervousness as a basis for
reasonable suspicion. We repeatedly have held that, in the usual course,
“nervousness is of limited significance in determining reasonable suspicion”
because “it is common for most people to exhibit signs of nervousness when
confronted by a law enforcement officer whether or not the person is currently
engaged in criminal activity.” Salzano, 158 F.3d at 1113. Ordinary nervousness
alone cannot serve as the basis for reasonable suspicion. United States v. Santos,
403 F.3d 1120, 1127 (10th Cir. 2005). We look only for signs of nervousness
“beyond those normally anticipated during a citizen-police encounter.” Salzano,
158 F.3d at 1113; see also Santos, 403 F.3d at 1127. Further, we require “specific
indicia that the defendant’s nervousness was extreme” and will not give credit to
1 We decline to address Mr. Pettit’s erratic driving pattern, a factor the
district court considered in denying the motion to suppress. Pettit, 2013 WL
5494664, at *5. The government does not rely on this factor on appeal. Aplee.
Br. 8 n.1.
- 10 -
“an officer’s naked assertion.” United States v. Simpson, 609 F.3d 1140, 1148
(10th Cir. 2010).
Here, nervousness does not stand alone in supporting objectively
reasonable suspicion; as discussed below, Mr. Pettit’s nervousness was only one
of several relevant considerations. Additionally, the trooper described several
specific indicia of abnormal nervousness. Mr. Pettit’s lower body was “moving
nervously” when he was first stopped, and his whole arm shook when he handed
the trooper his driver’s license. See United States v. Davis, 636 F.3d 1281, 1292
(10th Cir. 2011) (considering a trooper’s testimony that the defendant was “so
nervous that he was just shaking so bad, he was really, really nervous”); Simpson,
609 F.3d at 1148 (considering that the trooper could see the defendant’s body
“trembling” even after he was assured he would not get a ticket). Most
importantly, Mr. Pettit expressly stated that the trooper was making him nervous
twice within 25 seconds—first when the trooper asked him about his luggage and
then after the trooper requested his license, which was suspended. Mr. Pettit’s
behavior was unusual in light of the trooper’s experience with motorists.
Mr. Pettit cites several cases where we have discounted perceived signs of
nervousness as irrelevant to a finding of reasonable suspicion. Yet, the evidence
here is more powerful than the evidence presented in those cases. For example,
the single sign of nervousness exhibited by the defendant in Salzano was that his
hands were shaking, which the officer described as “a little nervous.” 158 F.3d at
- 11 -
1113 (emphasis added). In United States v. Wood, we discounted the trooper’s
subjective assessment of nervousness due to the “generic” nature of his
description. 106 F.3d 942, 948 (10th Cir. 1997). Mr. Pettit highlights our
statement in Wood that the trooper had no prior acquaintance with the defendant
that would enable him to contrast his behavior during the traffic stop to his usual
demeanor. Id.; see also Simpson, 609 F.3d at 1147–48. Yet, we have never held
that prior acquaintance is a requirement for a finding of unusual nervousness.
Indeed, such a requirement would effectively eliminate nervousness as a factor
supporting reasonable suspicion, since officers rarely know citizens they stop for
traffic violations.
Mr. Pettit offers a plausible innocent explanation for his nervousness: he
was rattled by the snow burst he had just encountered. However, the existence of
a plausible innocent explanation does not preclude a finding of reasonable
suspicion. “Reasonable suspicion requires a dose of reasonableness and simply
does not require an officer to rule out every possible lawful explanation for
suspicious circumstances before effecting a brief stop to investigate further.”
United States v. Cortez-Galaviz, 495 F.3d 1203, 1208 (10th Cir. 2007). And Mr.
Pettit does not persuasively argue that it would be objectively unreasonable to
infer that the trooper’s presence, rather than the snow storm, was the cause of Mr.
Pettit’s nervousness. Indeed, Mr. Pettit expressly stated as much twice within 25
seconds.
- 12 -
Thus, given the trooper’s relatively detailed description of Mr. Pettit’s
abnormal nervousness, the district court properly considered his demeanor
alongside other relevant factors in finding the trooper had reasonable suspicion to
extend the traffic stop.
B. Unusual Travel Plans
We have consistently held that “[i]mplausible travel plans can contribute to
reasonable suspicion.” Santos, 403 F.3d at 1129; see also United States v. White,
584 F.3d 935, 951 (10th Cir. 2009). Mr. Pettit argues that the district court erred
by relying on statements concerning his travel plans made during his unlawful
detention—that is, after 3:43 p.m., when the trooper could have issued his citation
and returned his driver’s license. Mr. Pettit is correct that reasonable suspicion of
illegal activity must have existed prior to 3:43 p.m. in order for the trooper to
further detain and question him. Bradford, 423 F.3d at 1156–57.
Yet, contrary to Mr. Pettit’s assertions, the trooper obtained enough detail
about Mr. Pettit’s unusual travel plans before 3:43 p.m. to contribute to an
objectively reasonable suspicion of criminal activity. By the time he had
completed Mr. Pettit’s citation, the trooper had learned that Mr. Pettit was driving
a vehicle registered to a third party who was not present. In the trooper’s
professional experience, and in our case law, driving a vehicle registered to an
absent third party can indicate drug trafficking. See, e.g., United States v.
- 13 -
Ludwig, 641 F.3d 1243, 1249 (10th Cir. 2011); United States v. Turner, 928 F.2d
956, 959 (10th Cir. 1991).
Furthermore, by 3:43 p.m. the trooper had learned that Mr. Pettit had flown
to California to pick up the vehicle he was now driving one way across the
country alone. Of course, we have held that “a one-way flight in one direction
and a one-way rental vehicle in the other direction is not the type of unusual
itinerary that gives rise to reasonable suspicion.” United States v. Karam, 496
F.3d 1157, 1165 (10th Cir. 2007). And we have been “reluctant to deem travel
plans implausible . . . where the plan is simply unusual or strange because it
indicates a choice that the typical person, or the officer, would not make.”
Simpson, 609 F.3d at 1149. For example, the defendant in Wood, an
“unemployed painter,” informed a trooper that he was driving a rental car one
way across the country after visiting California with his sister on vacation. 106
F.3d at 946. His sister had returned by plane, while he chose to drive to enjoy the
scenery. Id. at 947. We held that those travel plans could not contribute to
reasonable suspicion because “[t]here is nothing criminal about traveling by car to
view scenery.” Id.; see also Salzano, 158 F.3d at 1112–13 (holding that a
defendant’s travel plans were unusual but not suspicious when he was driving a
rented motor home across the country on vacation).
Yet, Mr. Pettit was not driving a vehicle rented in his own name across the
country on an extended vacation, but rather a vehicle registered to an absent third
- 14 -
party as a purported favor. The trooper explained that, in his experience, this
travel pattern is consistent with that of a drug courier. And, while Mr. Pettit’s
travel plans may not have been so strange or implausible as to independently
suggest criminal activity, they were worthy of consideration alongside several
other suspicious factors. Karam, 496 F.3d at 1165.
C. Multiple Suspended Driver’s Licenses
Perhaps most importantly, Mr. Pettit challenges the trooper’s consideration
of his two suspended licenses in formulating objectively reasonable suspicion,
arguing that the fact of their suspension “advances the inquiry very little, if at
all.” Aplt. Br. 21. However, the Tenth Circuit has held specifically that driving
with a suspended license can “contribute to the formation of an objectively
reasonable suspicion of illegal activity.” United States v. Hunnicutt, 135 F.3d
1345, 1349 (10th Cir. 1998) (citing United States v. Jones, 44 F.3d 860, 872 (10th
Cir. 1995)); see also United States v. Pack, 612 F.3d 341, 361 (5th Cir. 2010)
(holding that the defendant’s “suspended license could have contributed to [the
trooper’s] reasonable suspicion of criminal activity, since licenses are usually
suspended for less than law abiding conduct”).
Further, Mr. Pettit’s two suspended licenses might have amplified the
implausibility of his travel plans. The trooper reasonably could have doubted that
Mr. Pettit would volunteer to help a friend transport her car across the country,
alone, when he lacked a valid license. Based on his professional experience, the
- 15 -
trooper could have concluded that a driver would assume the risk of driving
without a license only if he was well compensated, such as in the course of an
illicit drug deal. We acknowledge that an officer could have reached an opposite,
innocent conclusion—that a driver would be unlikely to transport contraband if
suspended licenses might arouse the suspicion of law enforcement. But, again,
we need not rule out the possibility of innocent conduct in order to find
reasonable suspicion. Poolaw, 565 F.3d at 736.
Additionally, the trooper requested Mr. Pettit’s driver’s license twice
before Mr. Pettit produced a license clearly labeled “Nondriver.” And, when Mr.
Pettit produced the license, he passed over a suspended California license.
Although these actions are not independently incriminating, there is no apparent
error in the trooper’s inference that Mr. Pettit was attempting to hide or otherwise
avoid producing one or both of his suspended licenses.
Mr. Pettit argues that we should discount his license suspensions in light of
our approach to previous criminal convictions. We have been cautious of lending
excessive weight to criminal convictions, holding that a criminal record alone
cannot give rise to reasonable suspicion. “If the law were otherwise, any person
with any sort of criminal record . . . could be subjected to a Terry-type
investigative stop by a law enforcement officer at any time without the need for
any other justification at all.” Wood, 106 F.3d at 948 (quoting United States v.
Sandoval, 29 F.3d 537, 543 (10th Cir. 1994)). Yet, crucially, the government
- 16 -
need not rely on Mr. Pettit’s suspended licenses alone to support reasonable
suspicion. Thus, the licenses, combined with several other suspicious factors, are
relevant. Id. (discounting reliance on prior criminal convictions “[g]iven the
near-complete absence of other factors which reasonably gave rise to suspicion”).2
D. Initial Search
Finally, Mr. Pettit argues that the trooper’s initial fruitless search of the
trunk militates against a finding of reasonable suspicion. Aplt. Br. 25. Indeed,
we have held that courts must look at factors weighing against reasonable
suspicion as well as factors supporting such a finding. United States v.
Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004). However, the trooper’s first
search occurred prior to the records check and many of his questions, took little
time, and was only cursory. Pettit, 2013 WL 5494664, at *1. Thus, we agree
with the district court that the results of the search are entitled to little weight.
E. Totality of the Circumstances
Although each of the above factors—Mr. Pettit’s abnormal nervousness,
unusual travel plans, and multiple suspended licenses—may not independently
provide reasonable suspicion of illegal activity, taken as a whole they establish
2 The government argues that, since the trooper observed Mr. Pettit driving
with a suspended license and therefore had probable cause to arrest him, Utah
Code Ann. § 53-3-227, his detention was necessarily lawful. We have rejected
this argument. Courtney v. Oklahoma ex rel. Dep’t of Pub. Safety, 722 F.3d
1216, 1222 (10th Cir. 2013). In any event, the reasonable suspicion standard has
been satisfied.
- 17 -
reasonable suspicion supporting Mr. Pettit’s extended detention. See United
States v. Cervine, 347 F.3d 865, 871 (10th Cir. 2003) (“Reasonable suspicion may
exist even if each of the factors alone is susceptible of innocent explanation.”).

Outcome: AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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