This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Maria DeJesus Lopez,
Filed April 3, 2007
Douglas County District Court
File No. K6-06-198
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Christopher D. Karpan,
Jacob T. Erickson, Todd E.
Chantry, Vermeulen Law Office,
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
The state appeals from the district court’s order suppressing the cocaine discovered in the trunk of respondent’s vehicle and dismissing the complaint. We affirm.
February 14, 2006, Special Agent Timothy Shanley of the Bureau of Criminal
Apprehension was patrolling Interstate 94 in
As Shanley approached the driver, he saw that there were two adult women, two children, and several food containers in the passenger compartment of the vehicle. Shanley also saw an air freshener hanging from a vent under the glove compartment. And he observed what appeared to be a “religious icon” hanging from a key chain that depicted Jesus Malverde, who, Shanley testified, is “the patron saint of narcotics smugglers.”
requested the driver’s license and proof of insurance. The driver, respondent Maria DeJesus Lopez,
handed him an expired
Shanley ran checks on Lopez’s information, he went back and forth between
Lopez’s vehicle and the squad car and questioned both Lopez and her sister
about the purpose of their trip. Lopez
told Shanley that she was driving to
Shanley returned to the squad car
and wrote up a warning for Lopez but asked Lopez if she would remain to answer
additional questions. Although Lopez
agreed to answer additional questions, Shanley testified that at that point Lopez
would not have been allowed to leave. After
mentioning to Lopez that
Shanley asked for and received consent to search the vehicle. A drug dog was called to the scene, and it alerted to the presence of narcotics. A search of the trunk of the vehicle revealed a detergent box that contained approximately one pound of a white powder that was later determined to be cocaine. On February 15, 2006, Lopez was charged with one count of first-degree possession of a controlled substance, in violation of Minn. Stat. § 152.021, subd. 2(1) (2004), and one count of sale of a controlled substance in the first degree, in violation of Minn. Stat. § 152.021, subd. 1(1) (2004).
Lopez moved to suppress the cocaine, arguing that the traffic stop was unconstitutionally extended. After a hearing at which Shanley testified, the district court granted Lopez’s motion. The district court identified four bases for Shanley’s suspicion of criminal activity beyond the reason for the stop: (1) the fact that the vehicle was from Washington, a known source state for drugs; (2) the presence of the air freshener and the religious icon; (3) the absence of luggage, the messy state of the car, and the apparent discrepancy regarding where the group had stayed the preceding night; and (4) Lopez’s nervousness. But the district court determined that these facts did not amount to grounds for the reasonable, articulable suspicion necessary to extend the traffic stop, noting that the air freshener and the icon were not sufficient to indicate contraband, that a messy car was not unusual after a long trip, and that Lopez’s nervousness was reasonable. The district court therefore suppressed the cocaine and dismissed the complaint. This appeal follows.
D E C I S I O N
state argues that the district court erred by determining that Shanley did not
have a reasonable, articulable suspicion to extend the traffic stop after he
issued the warning to Lopez. On an
appeal by the state of a pretrial ruling, the state must establish “clearly and
unequivocally” both that the district court’s ruling has a “critical impact” on
the state’s case and that the district court erred. State v.
Scott, 584 N.W.2d 412, 416 (
concedes that the initial stop of her vehicle for speeding was lawful but
argues that Shanley did not have a reasonable, articulable suspicion to extend
the stop after he had given Lopez the warning. The scope and duration of a traffic stop is
limited to the reason for the stop. State v. Fort, 660 N.W.2d 415, 418 (
establish a “reasonable, articulable suspicion,” the officer must have a
particularized and objective basis for suspecting criminal activity. State v.
Cripps, 533 N.W.2d 388, 391 (
The state argues that Shanley had a reasonable, articulable suspicion of criminal activity beyond the reason for the stop because of (1) Lopez’s obvious nervousness during the encounter; (2) Shanley’s observation of the air freshener and the icon; (3) Lopez’s sister’s disclaimer of owning anything in the vehicle and her statement that she did not know if anything illegal was in the vehicle; and (4) the discrepancy between the reports given by Lopez and her sister regarding where the group had slept the night before and the purpose of the trip.
officer’s observation of nervousness is subjective to that officer and is not
sufficient by itself to establish a reasonable suspicion of criminal activity. Syhavong,
661 N.W.2d at 282. Further, the
religious icon is of limited value in establishing a reasonable suspicion. Tomaino,
627 N.W.2d at 341 (holding that nervousness combined with a key chain that
depicted a marijuana leaf was not sufficient to establish a reasonable
suspicion that a person possessed controlled substances). And the sister’s statement that she did not
own anything in the vehicle and that she did not know if there was anything
illegal in the vehicle, although perhaps the basis for a hunch, does not
objectively indicate criminal activity. See State v. Harris, 590 N.W.2d 90, 101
The discrepancies between the reports given by Lopez and her sister regarding the purpose of their trip and where the group had stayed the preceding night are perhaps the strongest grounds for a reasonable suspicion of additional criminal activity. We note that courts are in conflict regarding the value of discrepancies between reports of the passengers of a vehicle in establishing a reasonable, articulable suspicion. See, e.g., United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998) (noting that inconsistent stories, among other factors, may give rise to a reasonable suspicion of illegal activity). But see, e.g., United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003) (noting that inconsistent stories between driver and passenger are not sufficient to establish a reasonable suspicion of additional criminal activity). Because the state must establish in a pretrial appeal that the district court “clearly and unequivocally” erred, we conclude that the discrepancies in the statements made by Lopez and by her sister are not sufficient to justify a reversal. See Scott, 584 N.W.2d at 416 (establishing standard of review on pretrial appeals by state); see also State, City of St. Paul v. Lynch, 477 N.W.2d 743, 745 (Minn. App. 1991) (noting that on pretrial appeal by state, court of appeals cannot reverse simply because “this court would decide the case differently”).