                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                        June 9, 2006
                                    TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court

 U N ITED STA TES O F A M ER ICA,

           Plaintiff - Appellee,
                                                        No. 05-8103
 vs.                                               (D.C. No. 05-CR-75-B)
                                                         (D . W yo.)
 GABR IEL ZEU S KAGURA S,

           Defendant - Appellant.



                               OR D ER AND JUDGM ENT *


Before KELLY, M cKA Y, and O’BRIEN, Circuit Judges.


       M r. Kaguras entered a conditional plea of guilty to possession with intent

to distribute more than 40 but less than 60 kilograms of marijuana in violation of

21 U.S.C. § 841(a)(1), (b)(1)(D ). He retained the right to appeal the denial of his

motion to suppress. Aplt. App. at 140, 149. The district court sentenced M r.

Kaguras to 27 months imprisonment, and three years supervised release. A panel

of the court continued his release pending appeal. The issue on appeal is

straightforward: whether, after having been issued a w arning ticket, M r.




       *
        This order and judgment is not binding precedent, except under the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.
Kaguras’s continued detention was justified by reasonable suspicion. M r.

Kaguras refused to consent to further detention, so the officer required reasonable

suspicion to detain him, subject him to further questioning, and conduct a canine

sniff. Our jurisdiction arises under 28 U.S.C. § 1291. We hold that reasonable

suspicion did not exist, and reverse and remand.



                                    Background

      On January 19, 2005, W yoming Highway Patrol Trooper Dwayne Hunt was

parked in the median on Interstate 90 near milepost 144. M r. Kaguras, traveling

eastbound in a tan, Chevrolet Suburban, passed by. The trooper followed M r.

Kaguras, suspecting that the vehicle’s registration was expired. After verifying

that the vehicle was validly registered, the trooper passed M r. Kaguras. Aplt.

App. at 63. Near milepost 153, the trooper stopped to remove a piece of wood

from the road. M r. Kaguras changed lanes to avoid him, but did not signal when

he returned to the right lane of travel. The trooper observed the failure to signal

in violation of W yo. Stat. Ann. § 31-5-217(a). At that point, the trooper stopped

M r. K aguras. Aplt. A pp. at 64.

      M r. Kaguras provided his valid driver’s license and explained that he had

rented the Suburban in Seattle. M r. Kaguras provided the trooper with the rental

contract, which indicated that M r. Kaguras was to return the car in Seattle on

January 26, 2005. The trooper testified that he noticed that M r. Kaguras left his

                                         -2-
turn signal on when he pulled over, and that he appeared “pale” and “nervous.”

Aplt. App. at 65, 69. The trooper also testified that he smelled a “strong odor” of

air freshener after he went up to the window and started speaking to M r. Kaguras.

The trooper also observed partially eaten food in the vehicle.

      He informed M r. Kaguras of the reason for the stop and inquired about his

travel plans. M r. Kaguras told the trooper that he was heading to Chicago from

Seattle, where he rented the car. He said he was visiting his girlfriend for “as

long as possible. As long as she puts up with [him].” M r. Kaguras told the

trooper he was going to be in Chicago for an indefinite amount of time, and that

he had left Seattle two days prior. Aplt. Reply Br. Appx. A. The trooper

observed two large plastic containers in the back of the suburban, as well as a

large suitcase and red duffel bag. Aplt. A pp. at 66-69.

      The trooper returned to his patrol car while M r. Kaguras w aited inside his

vehicle. During this time, the trooper called in M r. Kaguras’s license information

and then called a deputy who happened to be a drug detecting canine handler.

Dispatch reported that M r. Kaguras’s license was valid. The trooper prepared a

warning ticket and returned to speak to M r. K aguras.

      The trooper gave M r. Kaguras the warning and his driver’s license, but

retained the rental contract. He continued to question M r. Kaguras about his

travel plans. The trooper inquired how M r. Kaguras was planning on getting the

vehicle back to Seattle, and M r. Kaguras explained that Hertz told him he could

                                         -3-
“just do a one-way.” Aplt. Reply Br. at 27. At that point, the trooper returned

the rental contract to M r. Kaguras.

      The trooper asked M r. K aguras if he could ask a couple more questions.

M r. Kaguras said no, then asked if they were done. The trooper then said he

would like to ask some more questions. M r. Kaguras tw ice stated that he would

like to get going. The trooper told M r. Kaguras to hold on. At that point, the

trooper asked the deputy, who had been waiting in his patrol car, to run the

canine. The trooper informed M r. Kaguras that they were going to run the canine,

and he immediately requested a lawyer. The canine alerted, and officers found

110 pounds of marijuana in M r. K aguras’s vehicle.

       M r. Kaguras moved to suppress the marijuana found in his car based on

the unlawfulness of his detention and subsequent search. Aplt. A pp. at 9, 28.

The district court denied the motion after an evidentiary hearing. In an oral

ruling followed by written disposition, the district court concluded that (1) the

trooper’s initial stop was justified, and (2) based on the totality of the

circumstances, the trooper had developed reasonable suspicion by the time he

returned M r. Kaguras’s documents, thereby justifying continued detention. Id. at

122-125, 135-38. The district court relied on the follow ing factors as giving rise

to reasonable suspicion: (1) M r. Kaguras’s travel plans were inconsistent with the

rental contract’s requirement that the vehicle be returned to Seattle; (2) the strong

scent of air freshener; (3) M r. Kaguras was so nervous that his left leg shook; (4)


                                          -4-
travel from a known drug source to a known drug destination; (5) Seattle’s

proximity to British Columbia; (6) partially eaten food in the car as evidenced by

food wrappers; and (7) large luggage, “the very size of which would make an

officer suspicious.” Aplt. App. at 136; see also id. at 123-25. On appeal, the

government does not rely on three of the seven factors, in particular (4), (5), and

(6), commendably conceding that they are either weak and/or do not provide

suspicion of criminal activity. Aplee. Br. at 8, n.4.



                                     Discussion

      W hen reviewing a district court’s denial of a motion to suppress, we view

the evidence in the light most favorable to the government and accept the district

court’s findings of fact unless they are clearly erroneous. United States v.

Rosborough, 366 F.3d 1145, 1148 (10th Cir. 2004). W e review the ultimate issue

of Fourth Amendment reasonableness de novo. United States v. Alcaraz-Arellano,

441 F.3d 1252, 1258 (10th Cir. 2006); Rosborough, 366 F.3d at 1148. M r.

Kaguras bears the burden to prove the challenged search and seizure was

illegitimate. Rosborough, 366 F.3d at 1148; United States v. Long, 176 F.3d

1304, 1307 (10th Cir. 1999).

      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 M app v. Ohio, 367 U.S. 643, 655-56


                                         -5-
(1961) (incorporating the Fourth Amendment’s provisions to the states through

the Fourteenth Amendment). A traffic stop is a seizure for the 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).

      During a routine traffic stop, an officer may request a driver’s license,

registration, and other required papers, run requisite computer checks, and issue

citations or warnings. Rosborough, 366 F.3d at 1148 (citing United States v.

Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994)). During the stop, an

officer may routinely inquire about the driver’s travel plans. United States v.

W illiams, 271 F.3d 1262, 1267 (10th Cir. 2001); United States v. W est, 219 F.3d

1171, 1176 (10th Cir. 2000). The officer may even go further, inquiring into

matters unrelated to the stop. M uehler v. M ena, 544 U.S. 93, 101 (2005). “Even

when officers have no basis for suspecting a particular individual, they may

generally ask questions of that individual; ask to examine the individual’s

identification; and request consent to search his or her luggage.” Id. (quoting

Florida v. Bostick, 501 U.S. 429, 434 (1991).

       A traffic stop may not extend the stop beyond the time reasonably

required to effectuate its purpose. M uehler, 544 U.S. at 101; Alcaraz-Arellano,

441 F.3d at 1258. Continued detention is appropriate only if during the initial

traffic stop, the officer develops a reasonable suspicion of criminal activity, or the

encounter becomes consensual. Rosborough, 366 F.3d at 1148; W est, 219 F.3d at


                                         -6-
1176. “A seizure that is justified solely by the interest in issuing a warning ticket

to the driver can become unlaw ful if it is prolonged beyond the time reasonably

required to complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407

(2005).

      A traffic stop that is extended without consent, even for a relatively short

duration, is unconstitutional absent a reasonable and articulable suspicion

justifying the further detention. See United States v. W alker, 933 F.2d 812, 816

(10th Cir. 1991); United States v. Guzman, 864 F.2d 1512, 1519 n.8 (10th Cir.

1988), overruled on other grounds, United States v. Botero-Ospina, 71 F.3d 783

(10th Cir. 1995) (en banc). W e have upheld the constitutionality of employing a

canine to sniff for contraband when it is conducted during the lawful detention of

a vehicle. United States v. M orales-Zamora, 914 F.2d 200, 203 (10th Cir. 1990).

Even additional questioning that extends the time of detention requires adequate

justification. See Alcarez-Arellano, 441 F.3d at 1258.

      In order to assess whether reasonable suspicion existed, we look to the

“totality of the circumstances” to see if the officer had a “particularized and

objective basis for suspecting legal wrongdoing.” See e.g., United States v.

Bradford, 423 F.3d 1149, 1157 (10th Cir. 2005) (internal quotations omitted).

Reasonable suspicion may exist even where each factor individually has an

innocent explanation. United States v. Arvizu, 534 U.S. 266, 277 (2002);

Cervine, 347 F.3d at 871, 872. But some seemingly innocuous factors can


                                         -7-
describe such a large number of travelers, that practically random searches w ould

be permitted if the courts deemed them sufficient to form the basis for reasonable

suspicion. Reid v. Georgia, 448 U .S. 438, 441 (1980). Reasonable suspicion is a

“fluid concept” that is context dependent. Ornelas v. United States, 517 U.S. 690,

696 (1996); Laughrin, 438 F.3d at 1247. W e require the officer to “articulate

something more than an inchoate and unparticularized suspicion or hunch.”

United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotations and citations

omitted). There must exist some minimum level of objective justification. Id.

      If the trooper in this case detained M r. Kaguras after the purpose of the

traffic stop was accomplished, with neither consent nor reasonable suspicion, then

the fruits of that detention are inadmissible. See W ong Sun v. United States, 371

U.S. 471, 484 (1963). On appeal, M r. Kaguras does not challenge the

constitutionality of the initial traffic stop, and the government does not argue (nor

could it on this record) that M r. K aguras consented to a lengthened detention.

Thus, the appeal turns on whether the trooper had reasonable suspicion to detain

M r. K aguras after he issued the warning.

      The legitimate detention of M r. Kaguras, based on the initial traffic

violation, ended when the trooper issued the warning ticket. See Caballes, 543

U.S. at 407. The trooper continued to question M r. Kaguras regarding his travel

plans while retaining the car rental agreement; these inquiries were not

consensual because M r. K aguras was not free to leave. For reasons that follow ,


                                         -8-
we conclude that the trooper lacked an objective basis for continuing to detain

M r. Kaguras after the time the trooper issued the warning ticket. 1 During the

suppression hearing, the government suggested several factors as contributing to

the trooper’s reasonable suspicion: (1) nervousness, (2) partially eaten food and

wrappers, (3) amount of luggage, (4) scent of air freshener, (5) additional keys on

the key ring to the rental car, (6) M r. Kaguras’s plans to stay in Chicago

indefinitely while the rental contract indicated the car w as to be returned in

Seattle, (7) travel from Seattle to Chicago, and (8) that M r. Kaguras was driving a

rental car. W e have considered all the factors in this case in totality, but for ease

of discussion address them one by one.

      The government maintains that the strongest factor here is nervousness.

Aplee. Br. at 14. As w e have noted, “nervousness is a sufficiently

comm on— indeed natural— reaction to confrontation with the police,” and is of

“limited significance” in our reasonable suspicion analysis. United States v.

Santos, 403 F.3d 1120, 1127 (10th Cir. 2005). That certainly is true in this case.


      1
          In a letter submitted pursuant to Fed. R. App. P. 28(j), the government
argues that Alcaraz stands “for the proposition that a traffic stop does not become
unreasonable merely because the officer asks questions unrelated to initial [sic]
reason for the stop, as long as those questions do not unreasonably extend the
stop.” Relevant here, however, is the Alcaraz court’s analysis regarding the
officer’s questioning after he returned the driver’s documentation. Alcaraz, 441
F.3d at 1259-60. The court there properly found that only consent or reasonable
suspicion at that point justified further delay. Id. at 1259. Here the forty second
interval between the issuance of the warning ticket and the return of the rental
contract had to supported by either reasonable suspicion or consent because the
purpose of the stop— the issuance of the warning— had been accomplished.

                                         -9-
The trooper testified that he had attended classes showing him what to look for

insofar as nervous behavior and inconsistent stories when it came to drug

interdiction. Aplt. App. at 60. He suggested many, many factors during the

suppression hearing that were indicative of nervousness. For example, he

testified that one indicator of extreme nervousness was leaving one’s turn signal

on when stopped which occurred in this case (although it w as later turned off).

Id. at 66. Further, the trooper testified that M r. Kaguras’s hands were shaking

when he handed him the rental contract, and that “one knee w as really nervous,

kind of jittery, but it seemed a nervous tick. Once som ebody gets really nervous,

you do something you don’t really realize that you’re doing.” Id. at 72. The

trooper also mentioned that M r. Kaguras seemed to speak in a scratchy, high

pitched, broken voice and that while M r. Kaguras looked at him, M r. Kaguras also

looked away when the trooper spoke to him. Id. at 72-73. In the hearing and its

written order, the district court focused on the shaking knee as confirmatory of

extreme nervousness, concluding that it was unusual, something the court had not

ever seen. Id. at 123, 135. Be that as it may, we doubt the officer is qualified to

testify as to the etiology of M r. K aguras’s “nervous tick.”

      The videotape and transcript indicate that M r. Kaguras was responsive, and

indeed, joked around with the trooper. He did not delay in responding to the

trooper’s questions, providing the requested documentation, and ultimately

asserting his constitutional rights. His voice was consistent and direct


                                         - 10 -
throughout. M oreover, the trooper’s testimony that M r. Kaguras w as “pale” is

without significance given that (1) the trooper had no basis of comparison, and

(2) M r. Kaguras w as driving from Seattle, in January. W e simply do not accord

any nervousness on the part of M r. Kaguras much weight in the analysis,

particularly because so much of what contributed to the trooper’s characterization

simply does not differentiate this case from any other innocent motorist stopped

by a state trooper.

      The trooper also testified that M r. Kaguras’s failure to show sufficient

relief after receiving a warning also was indicative of continued nervousness and

reasonable suspicion. Id. at 83. The government presses a similar argument

concerning reasonable suspicion. Aplee. Br. at 16. W e do not decide this

dubious proposition because when the trooper observed this lack of relief, the

trooper had already issued the warning and was detaining M r. Kaguras after he

had fulfilled the “mission” of the original, justified stop. Observations made

during an illegal detention cannot be used to bootstrap reasonable suspicion. As

such, we decline to even consider M r. Kaguras’s “continued nervousness” in our

analysis.

      The record does not support the characterization that M r. Kaguras’s travel

plans were vague, evasive, implausible or inconsistent. See e.g., Aplee Br. at 19;

Aplt. App. at 123. M r. Kaguras maintained throughout the entire traffic stop that

he was going to Chicago to visit his girlfriend, and that the length of his stay


                                         - 11 -
depended on how things in their relationship developed. Aplt. App. at 104 (Q: [to

Trooper H unt] He w as very clear from [] start to finish, he was going to stay there

as long as his girlfriend let him stay there? A: That’s correct.). Although the

rental agreement provided that the car was to be returned in Seattle seven days

later, M r. Kaguras informed the trooper that Hertz told him he could return the

car in Chicago instead. Id. at 81.

      This court has cautioned against “reading too much” into a car rental

agreement. Santos, 403 F.3d at 1129 (“Common experience suggests that it is not

unusual for a driver to rent a car for a certain period, and then to extend the rental

without incurring a penalty or paying a higher rate. Such an arrangement may

suggest that the driver's travel plans are uncertain or subject to change, but,

without more, not that they are implausible.”). Although the government properly

notes, Aplee. Br. at 19, that unusual or implausible travel plans, or inconsistent

answers about travel plans, can give rise to reasonable suspicion, Sokolow, 490

U.S. at 9, United States v. Kopp, 45 F.3d 1450, 1454 (10th Cir. 1995), that simply

was not the case here.

      The government also argues that M r. Kaguras “stuttered [] like he was

trying to think of something to say” and repeated the questions the trooper asked

him regarding the rental contract’s return date. A plt. App. at 81. W e decline to

consider this in our totality of the circumstances analysis because this

conversation transpired after the Trooper had issued M r. Kaguras the warning,


                                         - 12 -
and therefore after the point at which he needed reasonable suspicion to continue

to detain M r. K aguras.

      M oreover, the amount and size of luggage in M r. Kaguras’s car was

entirely consistent w ith his travel plans. The government’s position that the “tw o

large, plastic containers, the enormous, black suitcase and the large, red duffel

bag were not consistent with an ‘indefinite visit,’” Aplee. Br. at 18, is untenable.

An indefinite visit could be for days or months or years and there was no basis for

the trooper to regard the amount packed as suspicious, or for the government to

categorize it as inconsistent. 2 The situation here is entirely different than those

where “luggage” was properly considered as a factor giving rise to reasonable

suspicion. See United States v. Sharpe, 470 U.S. 675, 687 (1985) (car appeared

overloaded and the back of the car was weighed down); United States v. M endez,

118 F.3d 1426, 1431 (10th Cir. 1997) (no luggage either in trunk or back seat on a

long distance trip could be suspicious). Nor can we endorse the district court’s

observation that large luggage inherently gives rise to suspicion because it might

be used to carry marijuana which requires a lot of space. Aplt. App. at 124, 136.

      The trooper further cited M r. Kaguras’s travel from “one known drug


      2
         If M r. Kaguras had packed very little, the argument might have been that
such light travel was inconsistent with his hope to stay as long as his girlfriend let
him. Reasonable suspicion must be reasonable. Although wholly innocent
factors sometimes contribute to reasonable suspicion, the inferences to be draw n
from those factors must be plausible, not conveniently tailored to trap a
defendant. We are cautious about endorsing “catch-22” factors for reasonable
suspicion.

                                         - 13 -
source area to known drug source area destination” as a factor giving rise to

reasonable suspicion. Id. at 105. The district court relied upon this and Seattle’s

proximity to British Columbia in its analysis. Id. at 124 (“Now, we’ve got to take

into consideration that Seattle is very near the providence [sic] of British

Columbia, where British Columbia marijuana is very desirable on the drug

market. I would think that that would be quite important.”), 135-136. In Santos,

where travel between a drug source location (San Francisco) to a drug destination

(N ew Y ork C ity) w as cited as a factor justifying reasonable suspicion, we

cautioned: “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. Our holding that suspicious travel plans can form an

element of reasonable suspicion should not be taken as an invitation to find travel

suspicious per se.” Santos, 403 F.3d at 1132 (emphasis in original). The idea

that the source city is in close proximity to another source city is even weaker.

Indeed, the trooper admitted that “every place uses drugs” and that the “vast

majority of places on the west coast” are sources of drugs. Travel between major

cities is perhaps the weakest factor in the totality of circumstances analysis, and

is entitled to practically no weight.

      The mere fact that M r. Kaguras’s vehicle was rented, Aplt. App. at 79, is of

no value in assessing whether the trooper had objectively reasonable suspicion of


                                         - 14 -
criminal activity, and is not a factor on which reasonable suspicion can be

legitimately predicated. Similarly, the trooper’s testimony that he thought it was

“odd,” id. at 75, that M r. Kaguras had extra keys affixed to the rental car key

chain contributes nothing to the reasonable suspicion analysis. No evidence

appears as to why extra keys attached to the key chain are indicative of criminal

activity. The trooper’s explanation is inadequate: “M ost people I have stopped

that drive rental cars don’t have extra sets of keys on the key chain to the rental

car. And me personally renting cars, I don’t put my extra set of keys on there.”

Id.

      Also unavailing is the trooper’s observations of food wrappers in the car,

and the district court’s reliance thereon. Bradford, 423 F.3d at 1157 (“[F]ast food

wrappers have become ubiquitous in modern interstate travel and do not serve to

separate the suspicious from the innocent traveler.”) (internal quotations and

citations omitted). The suspicion associated with fast food wrappers is “virtually

nonexistent.” W ood, 106 F.3d at 947. The trooper testified that he thought the

food wrappers were significant because he’s “seen that people traveling across the

country with illegal narcotics try to do so as quickly as they can and they

generally just eat on the go.” A plt. App. at 90. Even with deference to his

training and experience, the trooper conceded that M r. Kaguras had left

W ashington two days prior, a reasonable amount of time to cover the distance in

question, and that in light of that, the presence of food wrappers w asn’t “worth


                                         - 15 -
very much.” Id. at 104.

       The scent of air freshener, standing alone, is inadequate to support

reasonable suspicion absent other indicia of criminal activity. United States v.

Villa-Chaparro, 115 F.3d 797, 802 (10th Cir. 1997). The fact that a rental car had

a strong odor of air freshener might reasonably cause an officer to be suspicious,

but in this case, there is no actual indicia of criminal activity. W e also note that

the trooper did not testify as to any air fresheners in the car, and thus the scent

could just as easily have been from cleaning the car prior to rental. 3

      As a whole, in totality, these factors do not give rise to objective,

reasonable suspicion. Although we will consider factors that could have an

innocent explanation, there must be something to indicate that criminal activity is

afoot. W hile state troopers’ training and experience are important, suspicions and

hunches like those proffered here are insufficient as a matter of law. W ood, 106

F.3d at 946. The trooper did not have a proper basis for reasonable suspicion and

his detention of M r. Kaguras after he issued the warning was in violation of the

Fourth Amendment. Accordingly, the district court should have granted the

motion to suppress.




      3
         The district court’s belief that “w hen you’ve got that odor of air
fresheners, you probably got a drug case” is not particularly helpful–suffice it to
say, that conclusion is overbroad and each case must be decided on its own facts.
Aplt. App. at 72.

                                         - 16 -
REVERSED AND REM ANDED.

                      Entered for the Court


                      Paul J. Kelly, Jr.
                      Circuit Judge




                      - 17 -
