* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 12 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. MICHAEL JOHN TOLEDO,

Defendant - Appellant. No. 97-3065 (D. Ct. No. 96-10069-01) (D. Kan.)

ORDER AND JUDGMENT *

Before TACHA , McKAY , and BRISCOE , Circuit Judges.

On December 9, 1996, the defendant pleaded guilty t o possessing 200 pounds of marijuana with intent to distribute, in v iolation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He did so on the co ndition that he be allowed to appeal the district court’s denial of his motion to suppress evidence found in the trunk of his car. The defendant was sentenced on F ebruary 21, 1997, and this is his appeal of the district court’s ruling on the mo tion to suppress. We take2

jurisdiction under 28 U.S.C. § 1291 and affirm. Background In the afternoon of October 11, 1996, Kansas Highway Patrol Troopers Rich Jimerson and John Rule were traveling on I-70 when their radar unit indicated that the defendant’s eastbound vehicle wa s exceeding the speed limit. The defendant’s car had a California license plate. The troopers pulled Mr. Toledo to the side of the road, where Mr. Toledo pr oduced papers relating to the rental car that he was driving. Upon being questio ned, Mr. Toledo told Trooper Jimerson that he was moving to North Carolina to ge t a new job in Raleigh. Jimerson noticed a strong odor emitting from Christmas-tree-shaped air fresheners in the brand new rental car. Mr. Toledo became vis ibly nervous during his exchange with Trooper Jimerson. When Jimerson returned to the patrol car to write up a warning citation for speeding, he noticed the rental documents indicated that the car was to be returned to California rather than North Carolina. Jimerson asked Trooper Rule to question Toledo about this discrepancy. The def endant then changed his story, telling Trooper Rule that he was going to visit his family in New Jersey after he stopped to visit friends and possibly look for a jo b in North Carolina. Meanwhile, a computer check that Jimerson had run on the defen dant revealed that Mr. Toledo had a prior conviction for possession of dru gs with intent to distribute.3

Jimerson gave the defendant the citation and told h im that he was free to leave. Jimerson then asked the defendant if he cou ld ask him a few questions, and the defendant agreed. The trooper eventually a sked to look in the trunk. The defendant replied that he preferred to leave. At t his point, Jimerson reiterated that the defendant was free to leave, but stated th at he suspected Toledo of transporting drugs and explained that the officers were going to temporarily detain the car for a canine sniff. It would have t aken ten to twenty minutes for a dog to arrive. The defendant said he did not want to wait and gave the trooper permission to look in the trunk. Before looking in the trunk, Jimerson informed the defendant that he did not have to open it; they cou ld wait for the dog to arrive from the nearby town of Colby (about two miles away ), which they could see from their position on I-70. The defendant nonethe less opened the trunk, and Jimerson readily detected a smell of marijuana. Th e officers discovered about 200 pounds of marijuana in containers in the trunk. Mr. Toledo contends that this evidence should be excluded from his case because t he troopers detained his car in violation of the Fourth Amendment. He argues th at his consent to the search was ineffective because it was caused by an illegal detention and was not voluntarily given.4 Discussion I. The Terry Stop “In reviewing a denial of a motion to suppress, we accept the factual findings of the district court unless they are clea rly erroneous. The ultimate determination of reasonableness under the Fourth Am endment, however, is a question of law which we review de novo.” United S tates v. Botero-Ospina , 71 F.3d 783, 785 (10th Cir. 1995) (citations omitted). A routine traffic stop is a seizure within the mean ing of the Fourth Amendment. See United States v. Wood , 106 F.3d 942, 945 (10th Cir. 1997). For purposes of constitutional analysis, we treat traffic stops as investigative detentions rather than custodial arrests. See id. (citing Berkemer v. McCarty , 468 U.S. 420, 439 (1984)). We therefore use the two-pa rt inquiry for investigative detentions set forth in Terry v. Ohio , 392 U.S. 1, 19-20 (1968). The first prong of Terryrequires us to ask whether the officers’ action wa s justified at its inception. See id. at 20. On appeal, the defendant does not argue that the officers lacked the authority to pull the defendant’s car over for speeding. Thus, the defendant concedes that the first part of the Terrystandard is met here. The second inquiry is whether the officers’ actions during the detention were reasonably related in scope to the circumstanc es that justified the interference in the first place. See id. In a normal traffic-stop situation, Terry ’s5

second prong requires the officer to allow the driv er to leave the scene after the officer issues a citation and after the driver prod uces a valid license and proof that she is entitled to operate the car. See United States v. Lee , 73 F.3d 1034, 1038-39 (10th Cir. 1996). An officer may expand a stop beyond its initial scope, however, if the suspect consents to further questio ning, see United States v. McNeely , 6 F.3d 1447, 1451 (10th Cir. 1993), or if the det aining officer has “a particularized and objective basis for suspecting t he particular person stopped of criminal activity,” United States v. Lambert , 46 F.3d 1064, 1069 (10th Cir. 1995) (citations and internal quotation marks omitted). In this case, Trooper Jimerson continued questionin g the defendant after giving him a warning citation and after the defenda nt had provided proof that he was entitled to operate the car. The discovery of the drugs occurred as a result of that extended stop. Thus, we must consider whethereither of the two exceptions noted above applies here. If neither exception app lies, then we must suppress the evidence as the fruit of an illegal detention. See , e.g. , Wood , 106 F.3d at 948. The government argues that because Trooper Jimersoninformed Mr. Toledo that he was free to go, the rest of the exch ange became consensual, even though the officers intended to detain the defendan t’s car. The government’s argument is flawed for two reasons. First, because a reasonable cross-country traveler in the defendant’s shoes -- i.e., one stan ding alongside an interstate6

highway -- would not have felt truly “free to go” w ithout his car, the officers effectively seized the defendant during the continu ed questioning. See United States v. Turner , 928 F.2d 956, 959 (10th Cir. 1991) (noting whethe r a seizure occurs depends on whether a reasonable person wouldbelieve she is not free to go under the circumstances). More importantly, how ever, the government admittedly detained the car itself without the defendant’s consent. Just as with a person, the police cannot conduct a nonconsensual i nvestigative detention of personal property unless they have a reasonable, articulable suspicion of criminal activity. See United States v. Place , 462 U.S. 696, 702-10 (1983) (applying Terry principles to personal property). Because the defendant did not consent to his contin ued detention, or to the detention of his car, we must determine whether the police had the necessary “particularized and objective basis,” Lambert , 46 F.3d at 1069, for detaining the defendant’s car without his permission. “Whether . . . an investigative detention is supported by an objectively reasonable suspicionof illegal activity does not depend on any one factor, but on the totality of th e circumstances.” United States v. Soto , 988 F.2d 1548, 1555 (10th Cir. 1993) (citations o mitted). Four different factors, taken together, provided the officers with the requisite reasonable suspicion in this case. First, the defendant gave a self-contradictory acco unt of his travel plans.7

He told one trooper that he was going to North Caro lina to look for a job; he told the other trooper that he was going to North Caroli na and New Jersey to visit friends, and that he would possibly look for work i n North Carolina. The first statement also conflicted with the defendant’s rent al agreement, which indicated that the car was to be returned in California rathe r than North Carolina. Inconsistent stories like these may support a findi ng of reasonable suspicion. See United States v. Koop , 45 F.3d 1450, 1453-54 (10th Cir. 1995). Second, the rental car emitted a strong odor of airfreshener. Because drug couriers often use air freshener to mask the smell of narcotics, “we have repeatedly held that air freshener coupled with oth er 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., c oncurring). In this case, the heavy scent of air freshener was particul arly suspicious, given the fact that the car was new. Third, the defendant had a previous drug conviction . While this information alone could never justify a seizure, se e United States v. Sandoval , 29 F.3d 537, 542 (10th Cir. 1994), it can combine with other items to provide the basis for a Terrystop, see id. (citing cases); United States v. McCranie , 703 F.2d 1213, 1218 (10th Cir. 1983). Fourth, the defendant acted nervously. As with cri minal history, we do not8

place a great reliance on this factor, but it does weigh in the calculus against the defendant. See Soto , 988 F.2d at 1556. These four factors together established a basis of suspicion that suffices under Terryto justify the brief detention. Our conclusion do es not contradict United States v. Wood , 106 F.3d 942 (10th Cir. 1997), relied upon by the defendant. In Wood , which is also a highway stop case, we found that the factors relied on by the district court did not give rise t o a reasonable suspicion of criminal activity. The defendant had fast food wrappers and other trash in his car, he had open maps out, he misidentified the place wh ere he picked up his rental car, and he described somewhat expensive travel pla ns despite being temporarily unemployed. See id. at 944. Here, the presence of the air fresheners is a more persuasive indicator of criminal activity than the presence of commonplace food wrappers in Wood . Moreover, while the defendant in Woodgave erroneous information to the police, the error was not of a type that suggested an intent to conceal criminal activity. See id. at 947. Here, the defendant’s inconsistent statements regarding the true purpose of his cross- country travel suggest illicit activity. For the above reasons, we conclude that the trooper s had the particularized and objective suspicion necessary to lengthen the T errystop. Therefore, they did not act unconstitutionally in questioning the defen dant and holding the9

defendant’s car briefly while preparing to call a d og to the scene. Cf. United States v. Brown , 24 F.3d 1223, 1226 (10th Cir. 1994) (finding thatthirty-minute investigative detention of defendant and his car fo r purpose of conducting canine sniff did not violate the Fourth Amendment). II. Inevitable Discovery The defendant’s second argument is that his consentto the search was involuntary and therefore must lead to exclusion of the evidence. The district court rejected this argument on two different groun ds. First, the district court found that the defendant’s consent to the search wa s, in fact, voluntary. Second, the district court found that even if the defendant ’s consent was not voluntary, the inevitable discovery rule allowed for admission of the evidence. We need not reach the consent issue here because we affirm on t he second ground. Evidence obtained illegally and subject to exclusio n can be introduced at trial if the prosecution can show that, absent the illegality, an independent investigation inevitably would have led to discovery of the evidence through lawful means. See Nix v. Williams , 467 U.S. 431, 444 (1984); see also United States v. Larsen , 127 F.3d 984, 986 (10th Cir. 1997) (holding that independent investigation need not be ongoing at time of illega l police conduct). Even if the consent was invalid, the drug-sniffing dog was an independent means of investigation that inevitably would have l ed to the lawful discovery of10

the marijuana in this case. There is no doubt thatthe dog would have arrived on the scene. As the district court pointed out, the troopers intended to call the drugsniffing dog and were ready to do so. They chose n ot to call for the dog only because the defendant indicated that they could exa mine the trunk of the car. Furthermore, the dog was a lawful means of investig ation. The first part of this order establishes that the extended detention of Mr. Toledo was justified by the officers’ particularized and objective suspicio ns. We have held that an extended detention of almost forty minutes spent wa iting for a drug-sniffing dog did not violate the Fourth Amendment. See United States v. Villa-Chaparro , 115 F.3d 797, 802-03 (10th Cir.), cert. denied , 118 S. Ct. 326 (1997). The evidence showed that in this case it would have taken ten to twenty minutes for the dog to arrive from Colby, a town that was only two miles away. Finally, use of the dog would have led to discovery of the evidence. As the district court noted in its opinion, given the mann er in which the marijuana was packaged in the trunk, a trained dog would have bee n alerted to it. At that point, a search of the trunk would have been supported by probable cause and therefore acceptable under the Fourth Amendment. See United States v. Stone , 866 F.2d 359, 364 (10th Cir. 1989) (noting that trained dog’ s alerting to presence of drugs provides probable cause for search). For these rea sons, the inevitable discovery rule justifies the introduction of the evidence.11 Conclusion The state trooper was justified in briefly detainin g the defendant’s car in this case. Regardless of whether the defendant’s s ubsequent consent to the search of his trunk was voluntary, the evidence inevitably would have been discovered through other lawful means. Therefore, we AFFIRM the decision of the district

court. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit JudgeNo. 97-3065, UNITED STATES v. TOLEDO

McKAY, Circuit Judge, dissenting:
The majority’s attempt to distinguish United States v. Wood , 106 F.3d 942 (10th Cir. 1997), is unpersuasive. Woodand this case involve the same arresting officer. In both cases the officer stated that the detainees appeared nervous. The officer ran computer checks on the detainees in bot h cases and discovered that each had a prior drug arrest or conviction. Mr. Wo od gave contradictory statements to the officer concerning the origin city of his rental car. See id. at 944. Mr. Wood first stated he rented the car in Sa n Francisco, and then confirmed that the rental car documents indicated t he car was rented in Sacramento. See id. Mr. Toledo initially told the officer he was goin g to North Carolina to begin a new job, and then said he was g oing to North Carolina to visit friends and look for a job. See Appellee’s Br. at 2. In Wood , the officer told the defendant he was free to go, and then asked him if he would answer some questions. See Wood , 106 F.3d at 944. Mr. Wood’s reply was “equivocal .” Id. In response to the officer’s questions, Mr. Wood st ated he had no narcotics or weapons, and told the officer he would not consent to a search of his car. See id. The officer then told Mr. Wood that “he was detaini ng the car and its contents . . . to subject it to a canine sniff.” Id. In the case at bar, the officer told Mr. Toledo he was free to go, and then asked him if he would m ind answering a few questions. See Appellee’s Br. at 3. In response to the officer’s questions, Mr.2

Toledo stated that he had no contraband in the car. See id. The officer then asked Mr. Toledo if he could look in the trunk of t he car. See id. Mr. Toledo replied that he would “rather be on his way.” Id. The officer then told Mr. Toledo he was detaining the car while a drug-sniffi ng dog was called to the scene. See id. The primary difference between Woodand this case is that Mr. Toledo acquiesced to the search of his car after he was to ld that his car was being detained. Another difference is that in Wood , the officer’s reasonable suspicion was partially premised on the presence of fast-food wrappers and open maps in the vehicle. See Wood , 106 F.3d at 947. In the case before us, the offi cer’s reasonable suspicion was partially premised on the defendant’s use of an air freshener in a rental car. See Appellee’s Br. at 9. Because the other factors bolstering reasonable suspicion are so similar in b oth cases, and because we found no reasonable suspicion existed in Wood , the majority opinion in this case essentially states that the presence of air freshen er in a rental car is a valid basis for an officer’s reasonable suspicion although the presence of fast-food wrappers and open maps is not. This court has stated that “[s]tanding alone, air f reshener is not sufficient to justify a reasonable search for drugs, [but] couple d with other indicia of criminal activity, [it] supports a reasonable brief inquiry. ” United States v. Alvarez , 681 The use of air freshener in a rental car has at least one plausible, innocent

explanation, i.e., one might use air freshener in a rental car to mask an odor of cigarettes remaining in the vehicle from a previous driver. Although the car was “new,” it had been driven 1600 miles. 3 F.3d 1242, 1245-46 (10th Cir. 1994). On this recor d, I do not believe the officer had enough indicia of criminal activity to justify expanding his inquiry from a routine traffic stop into a search for contraband. In addition to the presence of an air freshener in a rental car, 1 the arresting officer based his reasonable suspicion that Mr. Tol edo was carrying contraband on factors that this court has previously distruste d, i.e., seemingly contradictory statements about travel plans which might have an i nnocuous explanation, the nervousness of a detainee, and a detainee’s prior n arcotics history. See Wood , 106 F.3d at 946-48. Although “contradictory or imp lausible travel plans can contribute to a reasonable suspicion of illegal act ivity,” United States v. Mendez , 118 F.3d 1426, 1431 (10th Cir. 1997), “[o]nce [a de fendant has] corrected his error, suspicious inconsistencies virtually evaporate[] and any justification his error yield[s] for further investigation dissipate[ s].” Wood , 106 F.3d at 947. Mr. Toledo did correct the error he made to the officerregarding his travel plans, and his itinerary was hardly implausible. We are then left with Defendant’s nervousness and h is prior narcotics history. “After stripping away the factors which m ust be disregarded because4

they are innocuous, we are left with [Defendant’s] nervousness and his prior narcotics history--both factors which this court ha s cautioned are of only limited significance in determining whether reasonable susp icion existed.” Wood , 106 F.3d at 948. In Woodwe stated that “‘nervousness is of limited signifi cance in determining reasonable suspicion and . . . the gove rnment’s repetitive reliance on . . . nervousness . . . as a basis for reasonable s uspicion . . . must be treated with caution.’” Id. (quoting United States v. Fernandez , 18 F.3d 874, 879 (10th Cir. 1994)). “To sanction a finding that the Fourth Ame ndment permits a seizure based on such a weak foundation would be tantamountto subjecting the traveling public to virtually random seizures, inquisitions t o obtain information which could then be used to suggest reasonable suspicion, and arbitrary exercises of police power.” Id. I do not believe that the officer had a reasonable suspicion based on articulable facts which would justify his detention of the car for a canine sniff or allow him to seek consent to search the car. See id. at 946; Alvarez , 68 F.3d at 1245. Although each of the factors relied upon by the officer could legitimately provide some basis for reasonable suspicion, indivi dually and collectively these factors provide a weak foundation for this conclusi on. This detention was not justified, and “[r]eliance on the mantra ‘the total ity of the circumstances’ cannot metamorphose these facts into reasonable suspicion. ” Wood , 106 F.3d at 948. I5

cannot agree with the majority’s view that Mr. Tole do’s use of air freshener, his statements about his travel plans, his nervousness, and his past narcotics history are enough to justify a reasonable suspicion suffic ient to overcome a citizen’s constitutional protections. Finding that these fac tors constitute reasonable suspicion provides a tempting bootstrap for police officers to utilize when they catch the guilty by whatever means necessary and th en must justify those means under judicial scrutiny. Because the use of the inevitable discovery doctrin e in this case depends on the illegal detention, it cannot support the trial court’s refusal to suppress the seized evidence. I am also not persuaded that the consent to search was voluntary. The government bears the burden of proving the consent to search was voluntary, based on the totality of the circumstances. See Schneckloth v. Bustamonte , 412 U.S. 218, 222, 227 (1973); United States v. McCurdy , 40 F.3d 1111, 1119 (10th Cir. 1994). Consent cannot be the product of expre ss or implied duress or coercion. See Schneckloth , 412 U.S. at 227. Prior to his ultimate acquiesce nce, Mr. Toledo refused to consent to a search of his ca r. He changed his mind only after he was illegally detained, and after the unce rtain length of the detention was made clear to him by the officers. Mr. Toledo was stopped on a remote stretch of Kansas highway. Mr. Toledo was told that his car ( thus he, himself,) would be6

detained until a canine drug unit arrived from Colb y, a nearby town. The length of time Mr. Toledo would have to wait for the dog t o arrive was uncertain, but could be at least twenty minutes. The government f ailed to carry its burden of showing that the consent was voluntary. In fact, t he record supports only one conclusion--that the duress of the illegal detentio n caused Mr. Toledo to cave in and allow the officers to search his car. The notion that innocent as well as guilty persons can legally be subjected to the police conduct in this record is not consist ent with the Fourth Amendment and cases to the contrary. It is an unwarranted extension of police intrusion into the lives of our citizens. Therefore, I dissent, a nd would reverse the district court’s decision.