Tenth Circuit Breviaries

It's been a while since we've checked in with the Tenth Circuit. We'll start by catching up with a couple of recent Fourth Amendment cases.

Unduly prolonged traffic stop

"[E]ach minute" that an officer spends trying to arrange a dog sniff is time diverted from citation-related tasks. Such actions "necessarily prolong[ ]" a traffic stop and must be supported by reasonable suspicion. So said the Tenth Circuit in United States v. Frazier, 30 F.4th 1165 (10th Cir. 2022).

No reasonable suspicion was present in Frazier:

  • duffle bag "the presence of a bag in a vehicle adds nothing to the reasonable suspicion calculus"
  • air freshener "no [reasonable suspicion] inference can be drawn from the presence of an air freshener bottle that does not appear to have been in use" (noting trooper's testimony that he never smelled any deoderizer)
  • 4-inch window-opening "we do not think that a reasonable officer would have viewed the partially unrolled window as an effort to conceal the smell of contraband"
  • "evasive" responses "at bottom, the trooper's suspicion was based on nothing more than his own subjective interpretation of Mr. Frazier's behavior, which was entirely consistent with that of a driver who, though distracted and mildly annoyed by an arguably invasive question, had absolutely nothing to hide. In other words, the trooper merely had a hunch. As such, his belief that Mr. Frazier's responses were indicative of criminal conduct was not entitled to the deference it received from the district court."
  • double IDs "Rather than tie the IDs to some particularized indicia of wrongdoing, the government merely cites the IDs as an 'odd fact' that 'could' have caused the trooper to suspect that something was 'amiss' when considered together with his other observations. . . . This reasoning is far too flimsy to be afforded any weight."
  • missing rental agreement "Because Trooper Gibbs diverted from the stop's initial mission to arrange for a dog sniff rather than to establish Mr. Frazier's authority to drive the vehicle, Mr. Frazier's inability to lay hands on the agreement can play no role in our reasonable suspicion analysis."
  • rental car "Generally, the fact that a vehicle has been rented, standing alone, does not add to reasonable suspicion unless there are specific facts that make the rental relevant or unusual."
  • travel "absent other facts suggestive of criminal wrongdoing, we give no weight to the fact that Mr. Frazier was returning from a trip to the West Coast."

"Reasonable suspicion is a low bar, but it is not that low. Consequently, because the trooper lacked reasonable suspicion to extend the stop by several minutes to arrange for the dog sniff, Mr. Frazier's seizure violated the Fourth Amendment."

Two additional points from Frazier. The government argued that reasonable suspicion could be supplied by the trooper's post-dog-sniff-request search for Mr. Frazier's criminal history. The Tenth Circuit rejected this argument for two reasons. First, "the government does not explain how the information the trooper obtained could have any bearing on our reasonable suspicion analysis as it regards an earlier investigative detour." Second, "the government has failed to show that search was not itself an investigative detour that added time to the traffic stop."

Probable cause

"Probable cause must exist not only for the issuance of a search warrant, but also when it is executed. . . . Probable cause may dissipate simply from the passage of time as evidence becomes stale. . . . But new information can also undermine what had been probable cause." United States v. Topete-Madrueno, 2022 WL 1321765 (10th Cir. May 3, 2022).

TFreshen Uphe Tenth Circuit reaffirmed these basic principles in Topeta-Madruno. But it also affirmed the denial of suppression in that case despite evidence that the target drug-dealer had moved out of the target stash-house before the warrrant was executed. The task force had "freshen[ed] up" their (months-old) probable cause via surveillance days before obtaining the warrant, and the district court credited the warrant-drafting officer's later testimony that he did not know before he executed the warrant that the target had moved.