Small Clues Add Up to Reasonable Suspicion

by | May 24, 2024

United States v. Jordan, 2024 WL 1904580 (6th Cir. 2024)

Damara Sanders was driving on Interstate 71 with Terrence Jordan in the passenger seat. A trooper clocked Sanders on radar at 91 mph — 21 mph over the speed limit — and stopped her.  Sanders provided her license and the car rental agreement. The car had been rented two days earlier near Tampa, Florida, and was due back there the next morning. Sanders was driving north, away from Florida.

The trooper asked Sanders about her travel plans. She said she was on her way home to Erie, Pennsylvania (a 17-hour drive from Tampa). Sanders claimed she intended to “extend the rental agreement ‘for a while,’ but would ‘eventually’ drop it back off in Florida.” Sanders told the trooper she had been driving since 1800 hrs the day before, meaning she’d driven through the night. As the trooper spoke with Sanders, Jordan was “breathing heavily in the passenger seat.”

The trooper returned to his car and began preparing a speeding ticket. He also called for a canine unit. About 10 minutes later, an officer with a drug detector dog arrived. Less than two minutes into the sniff, the detector dog gave a positive response to the odors of controlled substances.

The officers then removed Sanders and Jordan from the car, patted them down, and searched the car. During the pat-down, a plastic bag containing blue pill fragments fell from Sanders’s pocket. The officers found marijuana, pill presses, digital scales, plastic baggies and a glasses case containing 650 pills split among seven bags. Subsequent testing showed the pills contained fluorofentanyl. The officers also found a safe containing two pistols and loaded magazines.

Both Jordan and Sanders were charged with possessing a controlled substance with the intent to distribute, and Jordan was charged with possessing a firearm as a felon. Jordan and Sanders asked the trial court to suppress the evidence obtained from the traffic stop, arguing the trooper lacked reasonable suspicion to extend the stop. Though 10 minutes may well be a reasonable amount of time to perform routine checks and to issue a citation, the trooper acknowledged he held onto the citation until the drug detector dog team arrived. The trial court denied the motion. Both defendants appealed.

Time and time again, the Supreme Court has stated the test for reasonable suspicion rests on a “totality of the circumstances of each case.”

The appellate court held the trooper had reasonable suspicion to extend the stop, based on the totality of several factors. These included Sanders’s suspicious travel plans — including driving from Florida through the night — her implausible explanations for her travel plans and returning the rental car, and Jordan’s heavy breathing. The court observed that three facts placed Sanders and Jordan within the drug-courier profile previously recognized by the court: the three-day rental from Florida (a common drug source state), driving a long distance when flying would have made more sense, and driving through the night.

In its opinion, the court cited the landmark case of Terry v. Ohio (392 U.S. 1 (1968)), in which the U.S. Supreme Court held, “Reasonable suspicion exists when an officer has ‘specific and articulable facts’ that provide an ‘objective basis for suspecting legal wrongdoing.’” In subsequent cases, the Court explained otherwise innocent activity can form the basis for reasonable suspicion. Officers are not obligated to rule out innocuous explanations for suspicious activity for suspicion to be “reasonable.”

Time and time again, the Supreme Court has stated the test for reasonable suspicion rests on a “totality of the circumstances of each case.” Courts should not parse out each fact and determine whether, standing alone, those facts were suspicious. In this case, the court noted, “Courts may not ‘divide and conquer’ the government’s proffered bases for suspicion — they may not consider a factor in isolation, ascribe no weight to that factor, repeat for each factor, and then conclude there’s no reasonable suspicion.” Nonetheless, Jordan asked the court to do just that.

Jordan argued Sanders’s explanation about extending the rental agreement rendered the three-day rental in Florida non-suspicious. The court posed several questions the trooper could have considered that cast doubt on her explanation: “If she was heading home after visiting a relative near Tampa, why get a rental that needed to be returned in Florida? Why not get a one-way rental? Likewise, if Sanders planned to extend the rental, why wait until less than a day before the due date?” (emphasis in original).

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Jordan explained his heavy breathing could have been due to a respiratory condition, but the trooper never asked about that. Acknowledging that nervousness is a weak factor in the reasonable suspicion analysis, the court repeated that officers do not have to go looking for innocent explanations. Moreover, while it might be natural for a driver to be nervous about being stopped and perhaps receiving a citation, there was less cause for Jordan, as a passenger, to be nervous about the stop.

The court concluded that the strange travel plans, “combined with Sanders’s implausible responses and Jordan’s nervousness,” justified a detention for further investigation, including the drug detector dog sniff.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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