A06-1781

State of Minnesota,

Appellant,

vs.

Maria DeJesus Lopez,

Respondent.

Filed April 3, 2007

Affirmed

Willis, Judge

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, Douglas County Attorney, Joel G. Paschka, Assistant County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN 56308 (for appellant)

Jacob T. Erickson, Todd E. Chantry, Vermeulen Law Office, 26 North Seventh Avenue, St. Cloud, MN 56303 (for respondent)

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

WILLIS, Judge

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.

FACTS

On February 14, 2006, Special Agent Timothy Shanley of the Bureau of Criminal Apprehension was patrolling Interstate 94 in Douglas County in an unmarked squad car. Shanley saw a vehicle with Washington state license plates that appeared to be speeding. Upon catching up with the vehicle, Agent Shanley clocked it at 76 to 77 miles per hour; the speed limit on that section of Interstate 94 is 70 miles per hour. As Shanley closed the distance between the squad car and the vehicle, the vehicle moved from the left lane into the right lane and then turned onto an exit ramp. Shanley activated his emergency lights and pulled the vehicle over at the bottom of the exit ramp.

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.”

Shanley requested the driver’s license and proof of insurance. The driver, respondent Maria DeJesus Lopez, handed him an expired Washington state temporary driving license. The passenger, who was later identified as Lopez’s sister, handed Shanley the vehicle’s registration card but could not locate proof of insurance. Lopez told Shanley that the vehicle belonged to her sister’s brother-in-law. Shanley testified that his “suspicions were aroused” at that point because neither Lopez nor her sister was the registered owner of the vehicle, because Lopez was nervous during this short contact, and because of the presence of the “religious icon.” Shanley asked Lopez to step out of the vehicle and join him in his squad car.

As 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 Wisconsin and was considering the possibility of moving there, but Lopez’s sister told Shanley that the group was returning to Wisconsin after visiting the sisters’ sick mother in Washington. Further, Lopez told Shanley that the group had spent the preceding night at a rest area, but the sister told Shanley that they had spent the night in a motel. Lopez’s sister also told Shanley that other than a few personal items in the passenger compartment, she did not own anything in the vehicle and that she did not know if there was anything illegal in the vehicle.

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 Washington was a source state for drugs, Shanley asked her whether there was anything illegal in the vehicle, including drugs. Shanley testified that Lopez became “more nervous” and “appeared to be rocking back and forth.” When asked again if there was anything illegal in the car, Shanley testified that Lopez responded with, “Like I said before, it’s not my car. I don’t know.”

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

The 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 (Minn. 1998) (quotation omitted). Lopez concedes that the district court’s dismissal of the state’s case had a critical impact. The district court’s factual findings are entitled to deference and will not be overturned unless they are clearly erroneous. State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006). Whether an officer had a reasonable, articulable suspicion to extend a traffic stop is a question of law, which this court reviews de novo. State v. Syhavong, 661 N.W.2d 278, 281 (Minn. App. 2003).

Lopez 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 (Minn. 2003). The general rule is that a police officer may detain a person only as long as is necessary to effectuate the purpose of the stop. State v. Tomaino, 627 N.W.2d 338, 340 (Minn. App. 2001). Extension of a traffic stop is permitted only if the officer has a reasonable, articulable suspicion of criminal activity beyond the basis for the stop. State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002).

To 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 (Minn. 1995). Articulable, objective facts are those facts—which “by their nature, quality, repetition, or pattern”—are “so unusual and suspicious” that they support at least an inference of criminal activity. State v. Schrupp, 625 N.W.2d 844, 847-48 (Minn. App. 2001), review denied (Minn. July 24, 2001). The factors supporting a reasonable, articulable suspicion are considered in the aggregate. State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998). An officer may rely on inferences and deductions that would elude the untrained, and a reviewing court may consider the officer’s experience, general knowledge, and observations; background information, including the time and location of the stop; and anything else that is relevant. Appelgate v. Comm’r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987). But a particularized and objective basis for suspecting criminal activity is something more than a mere hunch. Martinson, 581 N.W.2d at 850. Whether an officer had a reasonable, articulable suspicion is determined objectively: an officer has a reasonable, articulable suspicion if, in light of the totality of the circumstances, a reasonable officer would harbor such a suspicion. Id.

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.

An 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 (Minn. 1999) (noting that the absence of any activity by the defendant inconsistent with legal activity leads to conclusion officers acted on hunch, not reasonable, articulable suspicion).

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”).

Affirmed.