The Fourth Circuit has affirmed the suppression of drugs seized during a traffic stop on I-95 in Maryland. Senior Judge Hamilton wrote the opinion in United States v. Digiovanni, which Judges Motz and Diaz joined.
A few tidbits from the opinion are after the jump below. From the non-specialist point of view, there seem to be a few take-aways for civilian motorists and law enforcement alike. For civilian motorists: (1) pack your shirts in a garment bag, or you might be suspected of being a drug trafficker; (2) don’t keep your car too clean, or you might be suspected of being a drug trafficker; (3) never off-handedly say “oh boy” while answering an officer’s question; (4) when asked if you use marijuana, don’t say “I never smoked marijuana in my life. It makes me sleepy.” Most important, don’t agree to transport over 34,000 oxycodone pills from Miami to Boston. The take-away for law enforcement is to get consent faster, running through questions after plugging in license information.
While collecting Digiovanni’s driver’s license and the rental contract, Trooper Conner noticed two shirts hanging in the rear passenger compartment and a hygiene bag on the back seat. He also noticed the interior of the car was clean. At the suppression hearing, Trooper Conner testified that the hanging shirts suggested Digiovanni may be involved in drug trafficking activity, because, through his experience, non-drug traffickers traveling on vacation would have such items packed in a clothing bag. Trooper Conner also testified that the hygiene bag on the back seat was suggestive of drug trafficking activity, because there was no other visible luggage in the car. As for the clean condition of the interior of the car,Trooper Conner indicated this was suggestive of drug trafficking activity, because “[t]here was nothing in the vehicle indicating that [he was] living on the road, nonstop driving.”
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In United States v. Foster, 634 F.3d 243 (4th Cir. 2011), we expressed “concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity.” Id. at 248. The same can be said about many of the facts relied upon by Trooper Conner. Trooper Conner’s reliance on the hanging shirts borders on the absurd. He labeled them as suspicious because non-drug traffickers would pack the shirts in a clothing bag.While it is true that we rely upon the “experience and specialized training” of the police officer, United States v. Johnson,599 F.3d 339, 343 (4th Cir. 2010), the “Government must also be able to either articulate why a particular behavior is suspicious or logically demonstrate, given the surrounding circumstances, that the behavior is likely to be indicative of some more sinister activity than may appear at first glance.” Foster,634 F.3d at 248. Here, the government offered no plausible explanation to support Trooper Conner’s reliance on the two hanging shirts. Equally absurd is Trooper Conner’s reliance on the clean car and the hygiene bag on the back seat. The vast majority of rental cars are delivered to the renter clean,and, considering that Digiovanni took the Auto Train, it is not surprising that the car was clean when it was stopped byTrooper Conner. And there is nothing suspicious about a hygiene bag located on the back seat of a car.
In this case, other than Digiovanni’s unusual travel itinerary, there is nothing compellingly suspicious about the case. There is no evidence of flight, suspicious or furtive movements, or suspicious odors, such as the smell of air fresheners, alcohol, or drugs. All the government can link to the unusual travel itinerary are the facts that Digiovanni rented a car from a source state, was stopped on I-95, and was initially nervous. Such facts, without more, simply do not eliminate a substantial portion of innocent travelers.
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In this case, we cannot say that the district court’s finding that Digiovanni’s written consent was involuntary is implausible. On the one hand, Digiovanni was in his late 50s, neither too young nor too old, and the video demonstrates that he is reasonably intelligent. The encounter was in public and in broad daylight, Trooper Conner was the only officer on the scene, and his weapon was not drawn. * * * Trooper Conner also returned Digiovanni’s license and rental contract. On the other hand, the district court was free to conclude that the seizure continued even though TrooperConner used the magic buzz words “you are free to go,” as such a statement is not “‘talismanic’” or sufficient in and of itself to show a lack of custody.” United States v. Hargrove,625 F.3d 170, 180 (4th Cir. 2010).