Factors Supporting Reasonable Suspicion (for Interdiction)

There are a number of factors that the courts have repeatedly held to be supportive of reasonable suspicion.  Those factors include:

1.   Nervousness (beyond routine nervousness),

2.   Inconsistent or implausible travel plans,

3.   Criminal histories,

4.   Rental vehicles,

5.   Masking agents, and

6.   The absence of luggage.

It is also important to remember that these factors can be consistent with innocent conduct.  These factors are best explained in the quotations from the cases below.

Legal Supplement

Nervousness

Extreme and persistent nervousness, however, "is entitled to somewhat more weight." United States v. West, 219 F.3d 1171, 1179 (10th Cir. 2000); Williams, 271 F.3d at 1268; United States v. Zubia-Melendez, 263 F.3d 1155, 1162 (10th Cir. 2001) (the court may still "defer to the ability of a trained law enforcement officer to distinguish between innocent and suspicious action" (internal quotation marks omitted)). The court examines specific indicia that the defendant's nervousness was extreme, rather than credit an officer's naked assertion. See, e.g., Santos, 403 F.3d at 1127 (pointing to the following factors: the defendant's changing the topic; swallowing hard; licking his lips which were quivering; and nervously stroking the top edge of the head liner of the patrol car with his hand).  Cited in United States v. Simpson, 609 F.3d 1140 (10th Cir. 2010).

“[E]xtreme nervousness is a relevant factor in the totality of the circumstances analysis.” Id.

“Extreme nervousness of a driver or passenger, in combination with other factors, can be a factor used to establish reasonable suspicion to continue a traffic stop beyond its initial purpose.”  United States v. Avezov, 731 F.Supp. 1194 (N.D. Okla 2010).

“The Tenth Circuit clarified that "[e]xtreme and persistent nervousness . . . 'is entitled to somewhat more weight.’” Id.

“In particular, Smith could reasonably have concluded that Saadeldin's conversation sounded like nervous chatter and Saadeldin's demeanor could have raised some suspicion that illegal activity was afoot.” Id.

“Extreme nervousness, when combined with other factors, also can be a basis for reasonable suspicion. See Soto, 988 F.2d at 1556 & n.4.”  United States v. Villasenor, 61 Fed. Appx. 653, 656-657, 2003 U.S. App. LEXIS 7534, *10-13 (10th Cir. Kan. 2003).

"An individual's nervousness during a traffic stop is another fact that may contribute marginally to a reasonable suspicion of illegal activity." Davis, 636 F.3d at 1291.” United States v. Kitchell, 653 F.3d 1206 (10th Cir. 2011). 

An individual's nervousness during a traffic stop is another fact that may contribute marginally to a reasonable suspicion of illegal activity. Our cases acknowledge if during a traffic stop for a routine violation an individual "shows unusual signs of nervousness, this may be considered as part of the totality of circumstances a reasonable law enforcement officer would analyze in investigating possible crimes." United States v. Santos, 403 F.3d 1120, 1127 (10th Cir. 2005). However, nervousness is a common, natural reaction during a traffic stop, and thus "[o]nly extraordinary and prolonged nervousness can weigh significantly in the assessment of reasonable suspicion." Id. United States v. Davis, 636 F.3d 1281 (10th Cir. 2011).

“Additionally, Davis and Wynn were abnormally nervous when questioned during the traffic stop.”  Id.

“When a motorist detained for a routine traffic violation, such as speeding, shows unusual signs of nervousness, this may be considered as part of the totality of circumstances a reasonable law enforcement officer would analyze in investigating possible crimes. . . Only extraordinary and prolonged nervousness can weigh significantly in the assessment of reasonable suspicion.”  United States v. Santos, 403 F.3d. 1120 (10th Cir. 2005).

“[T]his court will consider an officer's observation of nervousness, and particularly extreme nervousness, in weighing the totality of the information available to the officer. See United States v. Contreras, 506 F.3d 1031, 1036 (10th Cir. 2007); United States v. Concepcion-Ledesma, 447 F.3d 1307, 1318 (10th Cir. 2006); United States v. Santos, 403 F.3d 1120, 1127 (10th Cir. 2005).  . . [P]olice officers encounter displays of nervousness on a daily basis. As such, while this court will view the government's "repetitive reliance" on this factor with caution, Salzano, 158 F.3d at 1113 (quotation omitted), we may still "defer to the ability of a trained law enforcement officer to distinguish between innocent and suspicious action . . .” United States v. White, 584 F.3d 935 (10th Cir. 2009). 

Travel Plans

"Implausible travel plans can contribute to reasonable suspicion." Santos, 403 F.3d at 1129; see also White, 584 F.3d at 951 ("[This court] ha[s] noted numerous times that implausible travel plans can form a basis for reasonable suspicion." (quoting United States v. Contreras, 506 F.3d 1031, 1036 (10th Cir. 2007))).” Cited in United States v. Simpson, 609 F.3d 1140 (10th Cir. 2010).

 “[L]ies, evasions or inconsistencies about any subject while being detained may contribute to reasonable suspicion.”  Id.

“[W]e found reasonable suspicion because the defendant "gave vague, evasive, and inconsistent answers concerning his length of stay. . . “  Id.

“[T]he court emphasized that the defendant's "explanation of his travel plans and purpose was not plausible, nor was it completely consistent with the explanation his passenger gave.” Id.

“[W]e must consider whether Mr. Simpson's account of his travel plans was merely unusual or whether, in contrast, was sufficiently bizarre, inconsistent and evasive to constitute a factor contributing to reasonable suspicion.”  Id.

“We have repeatedly stated that "as part of a legitimate traffic stop" an officer may ask a motorist about his or her travel plans. United States v. Santos, 403 F.3d 1120, 1132 n.6 (10th Cir. 2005).” United States v. Kitchell, 653 F.3d 1206 (10th Cir. 2011). 

One factor is an individual's internally inconsistent statements or the inconsistencies between a passenger and driver's statements regarding travel plans. See United States v. Simpson, 609 F.3d 1140, 1148 (10th Cir. 2010) ("Implausible travel plans can contribute to reasonable suspicion."); United States v. White, 584 F.3d 935, 951 (10th Cir. 2009) ("We have noted numerous times that implausible travel plans can form a basis for reasonable suspicion."); United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998) ("Among those factors that have justified further questioning are . . . inconsistent statements about destination."); United States v. Kopp, 45 F.3d 1450, 1454 (10th Cir. 1995) (finding reasonable suspicion justified continued detention because driver's explanation of travel plans were neither plausible nor consistent with the passenger's explanation, and the passenger's responses to questions were internally inconsistent). United States v. Davis, 636 F.3d 1281 (10th Cir. 2011).

“Implausible travel plans can contribute to reasonable suspicion. United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir. 1995); United States v. Sanchez-Valderuten, 11 F.3d 985, 989 (10th Cir. 1993).”     United States v. Santos, 403 F.3d. 1120 (10th Cir. 2005).

“Confusion about details is often an indication that a story is being fabricated on the spot.” Id.

"We have noted numerous times that implausible travel plans can form a basis for reasonable suspicion." Contreras, 506 F.3d at 1036; see also United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997) (holding that "contradictory or implausible travel plans can contribute to a reasonable suspicion of illegal activity");” United States v. White, 584 F.3d 935 (10th Cir. 2009). 

Criminal History

"[I]n conjunction with other factors, criminal history contributes powerfully to the reasonable suspicion calculus." White, 584 F.3d at 951 (quoting Santos, 403 F.3d at 1132) (emphasis in original).”  United States v. Simpson, 609 F.3d 1140 (10th Cir. 2010).

“But in conjunction with other factors, criminal history contributes powerfully to the reasonable suspicion calculus.”  Id.

A previous criminal history may also weigh in favor of an officer's reasonable suspicion of illegal activity. An individual's criminal record, by itself, is not a sufficient basis for reasonable suspicion. United States v. Davis, 636 F.3d 1281 (10th Cir. 2011).

 “But in conjunction with other factors, criminal history contributes powerfully to the reasonable suspicion calculus. Id.; see also McRae, 81 F.3d at 1535-36.” United States v. Santos, 403 F.3d. 1120 (10th Cir. 2005).

"’[I]n conjunction with other factors, criminal history contributes powerfully to the reasonable suspicion calculus.’ Santos, 403 F.3d at 1132”  United States v. White, 584 F.3d 935 (10th Cir. 2009). 

Rental Vehicles

‘”The status of a vehicle as a rented can be considered a factor to support the existence of reasonable suspicion, because it is accepted that drug traffickers frequently use rental vehicles to transport illegal drugs. United States v. Lyons, 510 F.3d 1225, 1237 (10th Cir. 2007); United States v. Contreras, 506 F.3d 1031, 1036 (10th Cir. 2007); United States v. Williams, 271 F.3d 1262 (10th Cir. 2001). It is also relevant that the vehicle was rented by a person who was not present. United States v. Ma, 254 Fed. Appx. 752, 756 (10th Cir. Nov. 20, 2007).” Cited in United States v. Avezov, 731 F.Supp. 1194 (N.D. Okla 2010).

“This Court has suggested that the use of a rental car can potentially contribute to an officer's reasonable suspicion of drug trafficking. See Davis, 636 F.3d at 1291; United States v. Williams, 271 F.3d 1262, 1270 (10th Cir. 2001).”  United States v. Kitchell, 653 F.3d 1206 (10th Cir. 2011). 

“Finally, our cases note drug traffickers often use rental vehicles to transport narcotics. See United States v. Contreras, 506 F.3d 1031, 1036 (10th Cir. 2007) (examining the basis for reasonable suspicion and "credit[ing] the idea that drug couriers often use third-party rental cars."); United States v. Williams, 271 F.3d 1262, 1270 (10th Cir. 2001) ("The officer knew from his training and experience that drug couriers often use third-party rental cars.").” United States v. Davis, 636 F.3d 1281 (10th Cir. 2011).

Masking Agents

“Our cases have consistently acknowledged that "a strong odor may give rise to reasonable suspicion on the part of law enforcement officials that the odor is being used to mask the smell of drugs." United States v. Salzano, 158 F.3d 1107, 1114 (10th Cir.1998); see United States v. Villa-Chaparro, 115 F.3d 797, 801 (10th Cir. 1997) (odor of detergent and visible soap crystals contributed to reasonable suspicion); United States v. Hernandez-Rodriguez, 57 F.3d 895, 898 (10th Cir. 1995) (strong smell of perfume supported reasonable suspicion that it was masking odor of drugs); United States v. Stone, 866 F.2d 359, 362 (10th Cir. 1989) (odor of patchouli oil, used to mask other smells, contributed to reasonable suspicion of drug possession); see also United States v. West, 219 F.3d 1171, 1178-79 (10th Cir. 2000) ("The Tenth Circuit has consistently held that the scent of air freshener is properly considered as a factor in the probable cause analysis.").” United States v. Powell, 277 Fed. Appx. 782, 784-788, 2008 U.S. App. LEXIS 10096, *5-16 (10th Cir. Kan. 2008).

“Second, the rental car emitted a strong odor of air freshener. Because drug couriers often use air freshener to mask the smell of narcotics, "we have repeatedly held that air freshener coupled with other indicia of criminal activity supports a reasonable brief inquiry for purposes of [Terry]." United States v. Alvarez, 68 F.3d 1242, 1246 (10th Cir. 1995) (McKay, J., concurring). In this case, the heavy scent of air freshener was particularly suspicious, given the fact that the car was new.” United States v. Toledo, 1998 U.S. App. LEXIS 1954, *7-11, 1998 Colo. J. C.A.R. 805 (10th Cir. Kan. 1998).

Absence of Luggage

“Similarly, the Tenth Circuit has found that luggage insufficient for the stated duration of a trip may contribute to reasonable suspicion. See, e.g., United States v. Lopez-Gutierrez, 334 F. App'x 880, 883 (10th Cir. 2009)(unpublished) ; United States v. Powell, 277 F. App'x 782, 787 (10th Cir. 2008)(unpublished) .”  United States v. Pulido, 2011 U.S. Dist. LEXIS 10877, *35-26, 2011 WL 386977, 2011 WL 386977 (N.D. Okla. Feb. 3, 2011).

“Fourth, Mr. Powell was transporting a relatively small amount of luggage seemingly inconsistent with his stated purpose of moving to Kentucky. Deputy Trammel testified that, instead of looking like someone moving all of his worldly possessions, Mr. Powell's vehicle was "probably half full," containing only four tires, two or three boxes, a light bag, and a pillow and blanket. Appellee's Supp. App. at 18-19. Our case law recognizes that an amount of luggage seemingly inconsistent with the stated purpose of one's trip may fuel reasonable suspicion of involvement in illegal activity. See, e.g., United States v. Jones, 44 F.3d 860, 863, 872 (10th Cir. 1995) (three small pieces of luggage in the back seat suspiciously inconsistent with alleged two-week trip); United States v. Arango, 912 F.2d 441, 443, 447 (10th Cir. 1990) (two small bags inconsistent with two-week vacation for two people); United States v. Espinosa, 782 F.2d 888, 891 (10th Cir. 1986) ("very little luggage" suspicious in light of claim of being on vacation).” United States v. Powell, 277 Fed. Appx. 782, 784-788, 2008 U.S. App. LEXIS 10096, *5-16 (10th Cir. Kan. 2008).

Destination

“If travel between two of this country's largest population centers is a ground on which reasonable suspicion may be predicated, it is difficult to imagine an activity incapable of justifying police suspicion and an accompanying investigative detention.” United States v. Santos, 403 F.3d. 1120 (10th Cir. 2005).

Reasonable Suspicion May Be Consistent with Innocent Conduct

“[R]easonable suspicion may be founded upon factors consistent with innocent travel …” United States v. Simpson, 609 F.3d 1140 (10th Cir. 2010).

“A factor may contribute to reasonable suspicion even if it "is not by itself proof of any illegal conduct and is quite consistent with innocent travel." United States v. Sokolow, 490 U.S. 1, 9, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).” United States v. Ka Kay Ma, 254 Fed. Appx. 752, 754-756, 2007 U.S. App. LEXIS 26805, *4-11 (10th Cir. Wyo. 2007).

“United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). In addition, "[a] determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct." Id. at 277.” United States v. Guerrero-Sanchez, 412 Fed. Appx. 133, 138-140, 2011 U.S. App. LEXIS 2771, *11-18 (10th Cir. Kan. 2011).

“Any of these facts, taken individually, may have been insufficient to raise a reasonable suspicion. Collectively, they provided ample reason to suspect Hernandez-Lizardi's story was a fabrication to cover up illegal activity.” United States v. Hernandez-Lizardi, 530 Fed. Appx. 676, 680-681, 2013 U.S. App. LEXIS 15084, *8-11, 2013 WL 3802135 (10th Cir. Kan. 2013).

Officer Does Not Necessarily Have to Believe Story

“Mr. Villasenor offers no case law suggesting that, in the absence of any objective evidence such as a bill of sale, a trooper must take a driver's word as proof he has authority to operate a vehicle.  Likewise, Mr. Villasenor has not cited cases holding troopers must ignore other suspicious circumstances, such as extreme nervousness or vague travel plans, once travel companions give consistent stories.” United States v. Villasenor, 61 Fed. Appx. 653, 656-657, 2003 U.S. App. LEXIS 7534, *10-13 (10th Cir. Kan. 2003).

Officers’ Suspicions Need Not Be Correct

“Even assuming that Smith made a mistaken assumption that the stories were inconsistent, Smith's belief that defendants' stories were contradictory was reasonable under the circumstances. See United States v. Pena-Montes, 589 F.3d 1048, 1052-53 (10th Cir. 2009) (an officer's mistaken perception of a fact is still relevant to the reasonable suspicion analysis if the mistake was objectively reasonable).”  United States v. Avezov, 731 F.Supp. 1194 (N.D. Okla 2010).

“Further, the officer need not be correct in his suspicion, but need only have a reasonable suspicion of a violation. United States v. Callarman, 273 F.3d 1284, 1287 (10th Cir. 2001).”  United States v. Fouse, 2013 U.S. Dist. LEXIS 110317, *8-22, 2013 WL 4017803 (N.D. Okla. Aug. 6, 2013).

Officers Intent to Actually Let the Person Go

“Mr. Williams fails to cite any case, nor can we find any, suggesting that the return of such documentation negates an officer's objectively reasonable suspicions developed during a traffic stop. Although the record indicates that the officer subjectively intended that Mr. Williams was free to go, the relevant inquiry in this case is based on the objective facts known to the officer, not upon the officer's subjective state of mind. See Whren v. United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996); United States v. Sanchez, 89 F.3d 715, 718 (10th Cir. 1996). Analytically, the only problem the release of Mr. Williams creates is that it suggests ostensibly that the officer based his detention of Mr. Williams solely on his refusal to consent to the officer's request to search the vehicle. If true, this, of course, would result in an unconstitutional search. Wood, 106 F.3d at 946. But the facts of this case indicate that this is not true. Whether the officer never intended to release Mr. Williams or whether he simply changed his mind after the consensual questioning does not alter our analysis if the officer already had sufficient reasonable suspicion to detain Mr. Williams for the purpose of the canine drug search. We therefore conclude that the officer's indication to Mr. Williams that he was free to leave bears no significance in our determination of whether the officer had reasonable suspicion to detain Mr. Williams.” United States v. Williams, 271 F.3d 1262, 1267-1271, 2001 U.S. App. LEXIS 25368, *12-24 (10th Cir. Kan. 2001).