United States of America v. Jason Komsonekeo

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON KOMSONEKEO,
Defendant - Appellant.
No. 20-6064
(D.C. No. 5:19-CR-00033-D-1)
(W.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and CARSON, Circuit Judges.**
_________________________________
A law enforcement officer may not extend a traffic stop beyond the time
reasonably required to carry out its purpose unless the encounter becomes consensual
or the officer develops reasonable suspicion that the person lawfully detained is
engaged in criminal activity. We evaluate the factors supporting reasonable
suspicion separately and in the aggregate.
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
** After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
FILED
United States Court of Appeals
Tenth Circuit
October 1, 2021
Christopher M. Wolpert
Clerk of Court
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Defendant Jason Komsonekeo sought to suppress evidence law enforcement
found in his vehicle after the officer claimed to have developed a reasonable
suspicion that Defendant was engaged in criminal activity. The district court
evaluated the factors supporting reasonable suspicion and denied Defendant’s motion
to suppress. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I.
Oklahoma Highway Patrol Trooper Brady Webb stopped Defendant for
driving 76 miles per hour in a 70 mile-per-hour zone. While conducting the traffic
stop, Webb observed what he believed to be suspicious items in the vehicle including
a potent air freshener, numerous energy drinks, and multiple cell phones. Defendant
also provided abnormal and inconsistent responses when Webb asked about his travel
plans. Based on these items, Webb suspected Defendant was participating in
criminal activity and asked for consent to search the vehicle. Defendant declined.
Webb then requested a drug dog. The dog alerted to the passenger side of the
vehicle. Webb performed a “probable cause search” of the vehicle and found two
firearms and a large amount of United States currency in the trunk. A grand jury
later indicted Defendant on one count of being a felon in possession of a firearm.
Defendant moved to suppress the evidence underlying the charge against him.
He challenged whether Webb had developed reasonable suspicion to extend the
traffic stop and conduct a free-air sniff of his vehicle. At an evidentiary hearing,
Webb testified that as he conducted the stop, he began to suspect that Defendant
might be engaged in criminal activity. He recalled several factors that combined led
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him to this conclusion. First, Defendant had air freshener in the 2019 vehicle with an
aroma so strong that it made his eyes water and throat burn. Second, Defendant had
an excessive number of highly caffeinated beverages in the vehicle. Third,
Defendant had multiple cell phones in sight, including an older model pre-paid flip
phone. Fourth, Defendant acted overly nervous. He tightly gripped the steering
wheel, his voice cracked when he said his own name, and he appeared unable to
control his shaking hands when giving Webb his license. He also seemed to stall
when Webb questioned him. Fifth, Defendant’s travel plans appeared unusual to
Webb. Defendant claimed to have flown one way from Fresno, California, to
Fayetteville, Arkansas, just to drive ten hours each way to and from Chicago for an
NFL game and then drive back to California. Finally, Webb testified that some of
Defendant’s answers about his plans were vague and inconsistent. Webb asked who
went to the NFL game with him. Defendant first said some friends joined him.
Later, he mentioned he went with a family member and when asked to identify the
family member, he replied, “a family member” and “family is family.” He then said
“they” were Eagles fans. The combination of these factors led Webb to believe that
he had reasonable suspicion to prolong the traffic stop and further investigate.
The district court denied the motion to suppress, observing that Defendant
could probably innocently explain all the factors Webb mentioned if viewed
separately. But in the aggregate, they satisfied the reasonable suspicion standard.
Defendant entered a conditional guilty plea and appealed.
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II.
We engage in a two-tiered review of a motion to suppress based on a claimed
Fourth Amendment violation. United States v. Pettit, 785 F.3d 1374, 1378–79 (10th
Cir. 2015) (citation omitted). Viewing the evidence in the light most favorable to the
government, we review the district court’s factual findings for clear error and review
the ultimate question of reasonableness under the Fourth Amendment de novo. Id.
III.
The Fourth Amendment protects the people’s right to “be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. For Fourth Amendment purposes, a traffic stop is a seizure.
Delaware v. Prouse, 440 U.S. 648, 653 (1979) (citations omitted). And “a lawful
traffic stop may not extend beyond the time reasonably required to effectuate its
purpose.” Pettit, 785 F.3d at 1379 (citing Rodriguez v. United States, 575 U.S. 348,
354 (2015); Illinois v. Caballes, 543 U.S. 405, 407 (2005)). Indeed, “the tolerable
duration of police inquiries in the traffic-stop context is determined by the seizure’s
‘mission’—to address the traffic violation that warranted the stop and attend to
related safety concerns.” Rodriguez, 575 U.S. at 354 (internal citations omitted).
Authority for the seizure ends when tasks tied to the traffic infraction—i.e., the
purpose of the stop—are, or reasonably should have been, completed. Id. (citation
omitted).
During a routine traffic stop, however, “[a]n officer may request a driver’s
license and registration, run requisite computer checks, and issue citations or
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warnings.” Pettit, 785 F.3d at 1379 (citations omitted). We have also allowed an
officer to ask about the driver’s travel plans and matters unrelated to the stop. Id.
(citations omitted). “Continued detention is lawful only if the encounter becomes
consensual or if, during the initial lawful traffic stop, the officer develops a
‘reasonable suspicion’ that the detained person is engaged in criminal activity.” Id.
(citations omitted).
Reasonable suspicion—“a ‘particularized and objective basis for suspecting’
criminal conduct under a totality of the circumstances”—is not an onerous standard.
Id. (quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)). An officer “need
not rule out the possibility of innocent conduct, or even have evidence suggesting a
fair probability of criminal activity.” Id. (internal quotation marks and citation
omitted). Thus “factors consistent with innocent travel may contribute to reasonable
suspicion.” Id. (citation omitted). So if an officer has “a particularized and objective
basis for suspecting an individual may be involved in criminal activity, he may
initiate an investigatory detention even if it is more likely than not that the individual
is not involved in any illegality.” Id. at 1379–80 (quoting United States v. Johnson,
364 F.3d 1185, 1194 (10th Cir. 2004)).
Like the district court, we “evaluate each of the factors supporting reasonable
suspicion separately and in aggregate.” Id. at 1380 (citation omitted). The following
led Webb to believe Defendant might be engaged in criminal activity: (1) excessive
nervousness; (2) the strong scent of air freshener; (3) the presence of multiple cell
phones; (4) energy drinks and caffeinated beverages in the vehicle; (5) unusual travel
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plans; and (6) inconsistent statements about where he had been. We address each
factor in turn.
Generally, nervousness alone does not provide an officer with reasonable
suspicion. Id. at 1380 (citation omitted). But nervousness beyond that normally
anticipated during a citizen-police encounter can contribute to an officer’s reasonable
suspicion. See id. To support a claim of extreme nervousness an officer must
provide specific indicia that Defendant exhibited extreme nervousness. Id. Here,
Webb described specific indicia of Defendant’s abnormal nervousness including
Defendant’s cracking voice, tight grip on the steering wheel, and shaking hands as he
gave Webb his license. Id. (describing defendant-appellant’s abnormal nervousness
and how “his whole arm shook when he handed the trooper his driver’s license”).
And the district court observed excessive nervousness on the video. Nervousness
here does not stand alone in supporting objectively reasonable suspicion. It serves as
only one of several relevant considerations. Because of Webb’s detailed description
of Defendant’s abnormal nervousness, the district court properly considered this
factor alongside the other relevant factors in concluding Webb had reasonable
suspicion to extend the traffic stop.
An air freshener may support reasonable suspicion that the odor is being used
to mask the smell of drugs. United States v. Salzano, 158 F.3d 1107, 1114 (10th Cir.
1998) (citations omitted). Webb testified that he knew people often use air
fresheners to mask the odors of drugs. And he explained that Defendant’s air
freshener was so strong it caused his eyes to water and his nose to burn. So the
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district court properly considered this factor in concluding Webb had reasonable
suspicion to extend the traffic stop. See id.
The presence of multiple cell phones can lead to reasonable suspicion where
the officer’s knowledge and experience give him reason to know that those engaged
in criminal activity commonly use disposable and hard to trace phones. United States
v. Jeter, 175 F. App’x 261, 265 (10th Cir. 2006) (unpublished) (citing United States
v. Villa-Chaparro, 115 F.3d 797, 802 (10th Cir. 1997); United States v. Windrix, 405
F.3d 1146, 1153 (10th Cir. 2005); United States v. Gandara-Salinas, 327 F.3d 1127,
1130 (10th Cir. 2003)) (noting the presence of multiple cell phones combined with
air freshener and tattoos reflecting possible gang affiliation provided reasonable
suspicion to justify extended questioning). Webb testified that he knew the
possession of multiple cell phones, including cheaper, older models, is a common
indicator of possible criminal activity.
Like the district court, we do not assign any weight to Webb’s assertion that
the energy drink containers contributed to reasonable suspicion because an officer
may find such caffeinated beverages in the vehicle of any innocent traveler. See
United States v. Simpson, 609 F.3d 1140, 1152 (10th Cir. 2010) (giving no weight to
the presence of energy pills).
Implausible travel plans also can contribute to reasonable suspicion. Pettit,
785 F.3d at 1381 (citations omitted). Again, Defendant’s travel plans may not have
been so strange or implausible as to independently suggest criminal activity, but they
warranted consideration with other factors, considering his story that he flew one
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way from California to Arkansas, just to drive roundtrip from Fayetteville to Chicago
and then back to California from Arkansas. See id. at 1382 (citation omitted).
Finally, we have held many times that internally inconsistent statements can
contribute to reasonable suspicion. United States v. Davis, 636 F.3d 1281, 1291
(10th Cir. 2011) (citations omitted). And here, Webb believed Defendant’s
statements about who he met in Chicago were vague and inconsistent.
Although the above factors—abnormal nervousness, strong odor of air
freshener, multiple cell phones, implausible travel plans, and internally inconsistent
statements—may not independently provide reasonable suspicion of criminal
activity, taken as a whole they establish reasonable suspicion supporting Defendant’s
extended detention. See Pettit, 785 F.3d at 1383 (citation omitted) (holding that
abnormal nervousness, unusual travel plans, and multiple suspended licenses, taken
as a whole, establish reasonable suspicion supporting an extended detention).
AFFIRMED.
Entered for the Court
Joel M. Carson III
Circuit Judge
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