Tuesday, September 23, 2014

Fractured Panel Suppresses Money Found in Truck

U.S. v. $85,688.00 in United States Currency, 2014 WL 4237377 (8/28/14) (Ut.) (unpub'd) - Three judges finding reasonable suspicion to stop Mr. Wiley, two judges finding there was reasonable suspicion to continue investigating a registration offense for 16 minutes and two judges finding reasonable suspicion of drug trafficking justifying detention of Mr. Wiley's truck for a dog sniff adds up to suppression of the money found in the truck. How did this happen? Two judges found a violation of the Fourth Amendment for two different reasons.
All the judges agreed that the Missouri license plate "not on file" response to the trooper's inquiry justified initially stopping the truck. Judge Phillips believed that the reasonable suspicion of a registration violation dissipated when the trooper saw or should have seen the truck's recently issued current license plate and registration tab. The judge also found the reasonable suspicion the truck was stolen dissipated when Mr. Wiley provided the original motor vehicle title receipt showing he owned the truck. This dissipation occurred before the officer obtained enough evidence of drug-related activity to justify further detention. Importantly, the judge placed on the officer an obligation to determine without unnecessary delay whether the "not on file" response arose from innocent or criminal acts. The Fourth Amendment obligated the officer to look carefully at the license plate, not just glance at it, as he did. There was no evidence the plate or tab were forged. Because the plate and tab were no more than two weeks old, it made little sense that Mr. Wiley might have been driving on a previous owner's plates and registration, especially since the response was "not on file" rather than listing the previous owner's name. Likewise, if the truck were stolen, the record would show the real owner's name, not say "not on file." Judge Phillips also finds Mr. Wiley sufficiently preserved the contention the title receipt dissipated reasonable suspicion that the truck was stolen, even though he "could have more specifically argued this point."

Judge Ebel disagrees with Judge Phillips that the Fourth Amendment required a more vigilant inspection of the license plate. An officer doesn't have to use the least intrusive means of investigation, Judge Ebel opines. The judge distinguishes this situation from situations in other cases where the source of the officer's misinformation was a faulty, visual observation. In sum, it was okay for the officer to make the inquiries he did about travel plans, etc. and detain Mr. Wiley for 16 minutes. Judge Ebel found, however, that at the end of those 16 minutes the suspicions justifying the stop had dissipated and there was no reasonable suspicion of drug-related activity to justify detention for a dog sniff. The coffee cup, energy drink, hanging shirts, discarded wrappers and cell phone charger contributed nothing. These circumstances "have become so ubiquitous in interstate travel that they are simply not probative one way or another." Also the officer's belief that the $5,000 Mr. Wiley said he paid for the truck was way below what it was worth and therefore suspicious was not objectively reasonable, given that the title receipt indicated the truck was 6 years old with more than 67,000 miles on it. Mr. Wiley's nervousness was also meaningless because the officer didn't indicate it was extreme. Fumbling the phone while looking for a number wasn't extreme nervousness. Only partially rolling down the driver's window and refusing to open the truck door amounted to refusing consent to search the vehicle, which cannot be used as a factor in the reasonable suspicion calculus. "Very little weight" went to the presence of an aerosol can of Fabreze because there was no evidence it was used. Air fresheners are suspicious if used, not if they are not. Plus the Fabreze could be explained by the smelly endeavor of Mr. Wiley's cross-country trip in a "lived-in" truck. Mr. Wiley's plans were neither inconsistent nor implausible, although they may have been unusual, which does not support reasonable suspicion. Mr. Wiley said he was driving from Missouri to California to visit friends and family after having been laid off from his job. He gave the officer names and numbers of the people he would visit. The failure of those people to answer the phone when called was not suspicious, given that "in the days of mass-telemarketing and caller ID, many of us screen unknown calls." Traveling on I-80, rather than taking the more direct route on I-70, was explained by Mr. Wiley's desire for a more scenic route, since his unemployment gave him the luxury of time to make the trip longer. Judge Ebel was not impressed by the officer's claim that I-80 was not beautiful. "Implausibility must be judged by objective factors, not according to whether the individual officer would have taken the same route." Mr. Wiley's prior arrest for marijuana and paraphernalia possession carried little weight where, as here, there were no other indicia of criminal activity. And, besides, the arrests were 7 years old, not convictions and not for trafficking. Mr. Wiley didn't lie about his prior arrest, since he was cut off before he could complete his explanation. Finally, Judge Ebel noted the lack of any evidence of hidden compartments or drug smell. The lack of especially incriminating factors should not be excluded from the reasonable suspicion analysis, he says.

Chief Judge Briscoe dissented. She agreed with Judge Ebel regarding the initial 16-minute detention. The suspicion generated by the "not on file" response was not dissipated until the officer could check the VIN numbers against the title receipt. She agreed with Judge Phillips that there was reasonable suspicion of drug trafficking after those 16 minutes. She felt traveling to help a sick aunt was not suspicious. But she did feel going out of his way to view scenery on I-80, a major route for drug transportation, and going to the San Francisco Bay area, a known source of high grade marijuana, were reasonable-suspicion factors. Judge Briscoe indicates Mr. Wiley had prior convictions, not just an arrest, for marijuana and drug paraphernalia possession. She counted these heavily together with what she believed was Mr. Wiley's attempt to conceal the convictions. She also counted against Mr. Wiley his rolling down his window only a few inches in conjunction with the Fabreze. This suggested an attempt to hide a drug smell. She agreed with Judge Ebel's assessment of the energy drink, coffee cup, nervousness and $5,000 price of the truck. And Mr. Wiley's unemployment also is irrelevant, Judge Briscoe believes. But, all in all, although the issue was close, there was reasonable suspicion of drug-related activity, the judge concludes.

Trial Court Did Not Abuse Its Discretion in Denying Continuance Requests, Granting One Minimal Continuance

U.S. v. Stewart, 2014 WL 4251609 (8/29/14) (Col.) (unpub'd) - The 10th holds the district court did not abuse its discretion in denying 2 continuance requests and in only granting a 6-day continuance in response to another continuance request. (1) The request for 90-120 days to interview a potential government "mystery witness" and a witness the BOP couldn't locate did not provide sufficient explanation why the request outweighed the interest of the public and Mr. Stewart's co-defendant in a speedy trial, given the 3 & 1/2 months the defense already had to interview the witnesses. That the case was designated complex did not alone require an ends-of-justice continuance. (2) There was no need for more time to interview witnesses on the government's witness list, since the court ordered the government to afford the defense an opportunity to interview them. Another witness the defense wanted to interview would only be called against the co-defendant. As for the rest of the witnesses, Mr. Stewart didn't show they would provide new information such that it would outweigh the "strong" public interest in a speedy trial or that denying a continuance would cause a miscarriage of justice. (3) The 6-day continuance was long enough despite the co-defendant's sudden decision a week before trial to testify against Mr. Stewart and co-counsel's pneumonia. It is not enough for the defense to identify an event and add that counsel needed more time to prepare because of that event. Counsel didn't explain how interviewing additional witnesses would have provided more information beyond mere credibility attacks, which Mr. Stewart was able to muster "convincingly" with the 6-day continuance. Plus counsel didn't say how much time they needed or that he couldn't try the case without co-counsel.

The 6-day continuance was also not an abuse of discretion outside the Speedy Trial Act ("STA") context, the 10th holds. Mr. Stewart did not show what favorable evidence he would have discovered with a longer continuance. The co-defendant did not provide unique testimony. Another witness testified to facts that indicated Mr. Stewart acted deliberately [i.e, after a pause], rather than with passion that would have justified a manslaughter verdict sought by the defense. Mr. Stewart didn't show he changed his defense theory after learning the co-defendant would testify. During the 13 days between the co-defendant's change of heart and trial, Mr. Stewart had access to government witnesses and the co-defendant's criminal history and pretrial statements. Defense counsel could have anticipated the change of heart before it happened because that sort of thing is "not uncommon." Counsel was able to extensively cross the co-defendant at trial. Counsel, who "spearheaded" the defense, didn't show why he needed a longer continuance to make up for co-counsel's absence. Finally, a longer continuance would have inconvenienced the parties, since the district court claimed a longer continuance would require it to schedule the trial 13 months later.
Lewis v. Clark, 2014 WL 4197340 (8/26/14) (Wyo.) (unpub'd) - The prisoner sufficiently alleged a retaliation, First-Amendment violation where he filed a number of grievances and an officer, who could have known about the grievances, refused to let him use the law library, even though it was his turn to do so. The allegations that the officer was retaliating against Mr. Lewis for his grievance-filing "may be improbable, but not implausible," the 10th concludes.

Rantz v. Hartley, 2014 WL 4237335 (8/28/14) (Col.) (unpub'd) - Mr. Rantz's pro se motion in state court did not toll the running of the statute of limitations where the court refused to consider the motion because Mr. Rantz was represented by counsel at the time.
Johnson v. Patton, 2014 WL 4377708 (9/5/14) (Okl.) (unpub'd) - A state habeas petitioner challenges the crediting of jail and street-time and gets a remand. The district court denied relief on the grounds that Mr. Johnson only raised state law claims. But the 10th points out that whether the state has created a liberty interest in certain credits depends on an analysis of state law and actions. To the extent Mr. Johnson is entitled to credits because they were awarded or apply by operation of state law, he has a liberty interest by Oklahoma law. With respect to time served in jail prior to trial, state law says the defendant "will automatically receive credit for" that time. Plus it was corrections department policy to apply jail-time credit if the sentencing judge didn't deny it. Since the trial court did not deny it, nothing in the record indicated Mr. Johnson was not entitled to the credits. As to whether Mr. Johnson received those credits, the record indicated only that the relevant records were lost in a fire. On remand the district court would need to decide if Mr. Johnson received the credits he was due and, if not, whether the state deprived him of those credits through a constitutionally sufficient procedure.

As for street time, i.e., time spent on parole, Mr. Johnson had a due process liberty interest in the state applying street-time credits to which he was entitled. While it was in the governor's discretion to decide whether or not to grant Mr. Johnson street time, the governor actually did award him 10 years of street time credit. So he is entitled to that credit. Mr. Johnson and the state dispute whether state law requires that time to be credited against his 37-year sentence from which he was paroled or just the year sentence imposed when the governor revoked parole. The 10th remanded for the district court to analyze the state law question, [which the 10th suggests the district court could certify to the Oklahoma Court of Criminal Appeals], and decide if Mr. Johnson has a due process interest in having the credits applied to the 37-year sentence. If he had such an interest, then the d. ct. must decide if Mr. Johnson was deprived of that interest through a constitutionally sufficiently procedure.

In a footnote the 10th observes that, since Mr. Johnson did not have a Sixth Amendment right to counsel in a civil case, he also had no Sixth Amendment right to go pro se. But he does have a federal statutory right under 28 U.S.C. § 1654 ("in all courts of the U.S. the parties may plead and conduct their own cases personally") to go pro se in a civil case. So the 10th directed the d.ct. to consider any renewed request to go pro se. It had previously denied Mr. Johnson's pro se requests. On the other hand, the 10th notes counsel must be appointed under Rule 8(c) of the Rules governing § 2254 cases, if the district court holds an evidentiary hearing.

Monday, September 15, 2014

Perjury conviction reversed, but convictions for concealing debtor's property, transferring biological agent affirmed

U.S. v. Hale, 2014 WL 3906862 (8/12/14) (Ut.) (Published) - It was plain reversible error [the pro se motion did not preserve the issue where the district court refused to consider it because the defendant was represented by counsel]. to convict Mr. Hale of perjury where the question the government claimed he answered untruthfully was ambiguous as to whether it referred to the accuracy of his bankruptcy petition at the time it was executed or at the time of the questioning. There wasn't that much evidence Mr. Hale knew the petition information about the value of his property was false at the time he executed the petition. And the government even went back and forth in its interpretation of the question in its appellate brief. The Tenth orders an entry of a judgment of acquittal.

The Tenth upholds the conviction for concealing the "property" of the estate of the debtor in violation of 11 U.S.C. § 152(1). The real estate purchase contract Mr. Hale concealed was "property" under the statute because it was voidable, but not void. Under Utah law, Mr. Hale obtained an interest in the money promised under the contract, the trustee could have elected to ratify the agreement and so there was a right in the estate to that money.

Mr. Hale's constitutional challenge to 18 U.S.C. § 175, which prohibits transferring a biological agent, fails under plain error. On appeal he anticipated a Supreme Court ruling in Bond v. U.S., 134 S. Ct. 2077 (2014), that an analogous statute was unconstitutional because Congress couldn't implement an international treaty through the statute. But the Supreme Court avoided the question and so any unconstitutionality couldn't be plain. Mr. Hale couldn't benefit from the Supreme Court's holding that the analogous statute didn't cover the irritating chemicals involved in that case because in this case Mr. Hale mailed a substance to the trustee that he purported to contain hantavirus, a very dangerous thing. This would naturally be considered "terrorism." The Tenth also rejects Mr. Hale's unsympathetic argument that he didn't perpetrate a hoax in violation of 18 U.S.C. § 1038(a) because he actually did transmit a biological agent.

Supreme Court's Alleyne fuling not retroactive

U.S. v. Hoon, 2014 WL 3906708 (8/12/14) (Wyo.) (Published) - Alleyne does not restart the statute of limitations under 28 USC § 2255(f)(3) because it has not been held to be retroactively applicable. In other words, according to the Tenth, defendants cannot obtain relief for Alleyne violations in cases that are already final.

Unpublished Decisions

U.S. v. Beamon, 2014 WL 3933778 (8/13/14) (N.M.) (unpub'd) - Mr. Beamon was not actually detained until the DEA Agent Small, had finally subdued him by ordering him to the ground at gunpoint and he finally complied. Before then Mr. Beamon had drawn the agent's suspicion by refusing to allow Officer Tate to search his backpack and attempting to leave with the backpack, i.e., by exercising his constitutional rights. Agent Small then grabbed Mr. Beamon. They both fell down the train stairwell. Mr. Beamon then grabbed a vacuum-sealed envelope containing what appeared to be cocaine from the backpack and tried to flee. He stopped when Agent Small drew his gun on him. The Tenth notes that a detention occurs even when there is just a brief submission to authority. But here that didn't happen until Mr. Beamon surrendered at gunpoint. By that time there was probable cause to arrest him, given his removal of the envelope.

U.S. v. Howell, 2014 WL 3893339 (8/11/14) (Okl.) (unpub'd) - The Tenth admits a mistake, but it doesn't help the defendant. The Tenth acknowledges it was wrong when it said in a prior appeal that a witness testified he gave a shotgun to Ms. Howell. The Tenth used this misconception to support its conclusion that there was sufficient evidence to support Ms. Howell's conviction for possessing a firearm to further drug trafficking. Ms. Howell contended her attorney acted unreasonably in failing to petition for rehearing on account of the misrepresentation of the record. The Tenth was willing to contemplate that maybe a defendant has at least a statutory right to an attorney to petition for a rehearing. But any deficient performance did not satisfy the prejudice prong for Ineffective-assistance-of-counsel relief, the Tenth says. There was other actual, rather than made-up, evidence to support the conviction, including women's clothing in the trailer where meth manufacturing materials and firearms were found. "Hardly overwhelming," the Tenth understates, but still enough to convict, says the Tenth. Therefore no prejudice.

U.S. v. Walker, 2014 WL 3906782 (8/12/14) (Kan.) (unpub'd) - The Tenth overturns a district court's sua sponte dismissal of drug and gun charges. The district court dismissed because it believed the case belonged in state court. In what court a case belongs is up to the prosecutor, not the court, the Tenth rules. Prosecutorial misconduct might justify dismissal, but there was none in this case. The Tenth treated the issue as preserved, even though the government did not object, because the district court sua sponte resolved an issue of law on the merits. On the positive side, the Tenth refuses to remand to a different judge. There was no showing of personal bias.

U.S. v. Posada-Cardenas, 2014 WL 3933933 (8/13/14) (Col.) (unpub'd) - No relief for Mr. Posada-Cardenas despite these remarks by the district court at sentencing: "I'm distressed that for the amount of time he's been in this country, he's never bothered to try to learn English. It shows no effort to adjust to the customs of this country." While the government thought the remark was "probably unwarranted," it was a small consideration and nothing in the record indicated it was a proxy for race or ethnicity, as opposed to an observation about cultural assimilation. For you appellate geeks out there, the Tenth notes the alleged error could possibly be characterized as procedural, rather than substantive. Since defense counsel had not objected, this characterization would have sent the issue into desolate, plain-error land, the Tenth saw no need to resolve the question, since it rejected the issue under the "more lenient" abuse-of-discretion standard.

U.S. v. Varela, 2014 WL 3933878 (8/13/14) (Wyo.) (unpub'd) - It was not a deviation from Miranda for the agent to ask if Mr. Varela would mind talking to the agent, rather than asking specifically for a waiver of rights. The agent's statement: "I think we can do something. I'm just saying I can't take the charges away right now," even if it was a promise of leniency, did not overcome Mr. Varela's will. It was vague and noncommittal. The Tenth acknowledged it may have inaccurately implied the agent had the power to take the charges away. But it wasn't sufficiently misleading to render subsequent statements involuntary in light of the totality of the circumstances, including the 2 &1/2-hour-length of the interrogation in a small room, the lack of a threat of force and Mr. Varela's "relatively relaxed and comfortable" appearance.

Nevada's Controlled Substance Statute Held to Be Divisible

Ruiz-Giel v. Holder, 2014 WL 3906844 (8/12/14) (unpub'd) - Nevada's controlled substance statute is divisible under Descamps for purposes of applying the modified categorical approach. The identity of the controlled substance is an element of the offense. The statute can be violated by the sale of any of a multitude of specified substances. The modified categorical approach leads to the conclusion that Mr. Ruiz-Giel was convicted of selling heroin, which is listed in the federal drug schedules. The conviction was consequently for an aggravated felony.

Local activity can still support prosecution for creating child pornography

U.S. v. West, 2014 WL 3906842 (8/12/14) (Okl.) (unpub'd) - Prosecution for creating child porn in violation of 18 U.S.C. § 2251(a) did not contravene the Commerce Clause even if the defendant deleted all the images and never intended to distribute them interstate. Congress could decide such local activities constitute an essential part of the interstate market for child porn.

Prison nurse denied qualified immunity where she ignored plaintiff's severe pain for 5 hours

Al-Turki v. Robinson, 2014 WL 3906851 (8/12/14) (Col.) (Published) - The Tenth affirms a denial of qualified immunity to a prison nurse. Mr. Al-Turki's severe pain for five hours that caused him to collapse, vomit and believe himself to be dying satisfied the objective prong of the deliberate indifference test. It didn't matter that it turned out the cause was kidney stones, "a relatively benign" condition that could only be reduced, not eliminated, by medical treatment. And it was clearly established the nurse's conduct violated the Cruel and Unusual Punishment Clause. She was aware that severe abdominal pain, particularly in someone with diabetes, like Mr. Al-Turki, may be a sign of a number of serious, life-threatening conditions. She was also aware she was the only medical person on duty. Without her help Mr. Al-Turki would have no medical assistance. Later-learned facts that made this case less severe than other Tenth Circuit cases didn't make her choice to ignore Mr. Al-Turki's repeated requests for help any less culpable.

Court addresses circumstances supporting a stay of habeas proceedings

Doe v. Jones, 2014 WL 3906849 (8/12/14) (Okl.) (Published) - A district court has the discretion to stay § 2254 proceedings where all of the claims are unexhausted. This theoretically would enable the petitioner to exhaust state remedies without worrying about getting to federal court after the statute of limitations runs out. Here there might be good cause for a stay because only two days remained for the statute of limitations. But no dice in this case. Mr. Doe's only claim is actual innocence and that claim would excuse any untimeliness under the recent Supreme Court McQuiggins decision. So no need for a stay. Judge Tymkovich concurs in the judgment, but dissents in part. He wouldn't allow a stay where all the claims are unexhausted. He also would require good cause be shown why the claims were not exhausted, not, as the majority indicated, good cause for the stay. And, besides, innocence is not a freestanding basis for habeas relief. Habeas is available to ensure there is no imprisonment in violation of the constitution, not to correct errors of fact, like a finding of guilt when the petitioner was actually innocent.

Denial of Freedom of Information Act request upheld

Watters v.Department of Justice, 2014 WL 3893298 (8/11/14) (Okl.) (unpub'd) - The Tenth affirms a denial of Freedom of Information Act ("FOIA") requests of the FBI and ATF to obtain exculpatory information to challenge a drug conviction. It was okay to withhold identifying information of many folks, including FBI agents, an AUSA, state and local law enforcement employees, people of investigative interest and those providing information. The privacy interests of those people overrides Mr. Watters' personal interests. The FOIA purpose of revealing government wrongdoing isn't implicated because Mr. Watters presented no evidence of wrongdoing. Nor did Mr. Waters show that disclosure would contribute to the public's understanding of government-related activities. It was okay to conceal information about a third party of interest due to that person's fugitive status, despite Mr. Watters' contention that the government really wasn't trying to capture that person. It was also fine to withhold information furnished by commercial/private companies and other non-government entities because the government obtained the information under an express confidentiality assurance. This is so even though Mr. Watters knows who the confidential sources are.

Habeas petitioner sufficiently stated federal due process claim to exhaust them

Oliver v. Cline, 2014 WL 3973531 (8/15/14) (Kan.) (unpub'd) - No equitable tolling for the running of the statute of limitations, despite state habeas counsel's failure to notify Mr. Oliver immediately about the Kansas Supreme Court's denial of his habeas petition where he had only 4 days left to file the federal petition after that denial. The Tenth says Mr. Oliver wasn't diligent enough because he took 361 days to file the state habeas petition [counsel wasn't appointed until after the filing of the state petition].

Lack of diligence in filing state petition bites habeas petitioner

Oliver v. Cline, 2014 WL 3973531 (8/15/14) (Kan.) (unpub'd) - No equitable tolling for the running of the statute of limitations, despite state habeas counsel's failure to notify Mr. Oliver immediately about the Kansas Supreme Court's denial of his habeas petition where he had only 4 days left to file the federal petition after that denial. The Tenth says Mr. Oliver wasn't diligent enough because he took 361 days to file the state habeas petition [counsel wasn't appointed until after the filing of the state petition].

Wednesday, September 10, 2014

Tenth Acknowledges the Result is Unfair, But Nonetheless Affirms Denial of 3582(c)(2) Relief to Crack Cocaine Defendant

United States v. White, 2014 WL 4290585 (Kansas) (Published). In White, the court affirmed the district court’s denial of White’s section 3582(c) motion while criticizing counsel for misunderstanding the Supreme Court’s decision in Freeman v. United States, 131 S.Ct. 2685. In his concurrence, Judge Hartz wasn’t so sure that criticism was fair or that the pre-Freeman cases, Darton and Dryden, upon which the majority based its opinion are still valid.

White appealed the district court’s denial of his request under § 3582(c) to reduce his sentence because it was based on the abrogated crack cocaine guideline. The government dismissed 15 of the 16 charges against White in exchange for his guilty plea to the §924(c) charge (possession of a firearm in furtherance of a drug trafficking crime). The sentencing court wasn’t happy with a mere five year mandatory prison term for that offense, so it directed the probation officer to calculate the sentencing guidelines for the underlying drug charge [even though it had been dismissed by the government.] The imprisonment range for that offense was 70-87 months and the court tacked 87 months onto the 60 month § 924(c) term. White said he was entitled to a reduction under §3582(c) because his sentence was “based on” the abrogated crack guidelines. He argued that like Freeman, the judge used the “sentencing range as the beginning point to explain the decision to deviate from it . . .” Therefore, he was eligible for relief because his sentence was based on sentencing guidelines that had been subsequently lowered by the Sentencing Commission.

The majority admitted that White’s 60 month mandatory sentence was “based” on §2K2.4 of the guidelines. It also conceded that the court’s upward departure was based on the abrogated crack guidelines. But then the court found that the part of the sentence about which White complains - the departure -“existed apart from the applicable range.” Consequently, it ruled he wasn’t eligible for relief. The majority quotes from Freeman ostensibly to support its ruling, but that case validates White’s position: “Even where the judge varies from the recommended range, if the judge uses the sentencing range as the beginning point [here §2K2.4] to explain the decision to deviate from it, then the Guidelines are in a real sense a basis for the sentence.” 131 S.Ct. at 2692. White's sentence was indeed based on the guidelines. Sadly, the majority and Judge Hartz acknowledge the result is unfair to White. However, the remedy is in the hands of Congress or the Commission.

Generalized Suspicion and Hunches Can Add Up to Particularized Reasonable Suspicion

United States v. Tubens, 2014 WL 4290598 (Utah) (Published). Tubens was riding an overland bus when it pulled into a rest area for a prescheduled stop. There, two officers were waiting with their dogs to search the luggage compartment. Both dogs “alerted” or “indicated” to Tubens’ suitcase. He was summoned off the bus to watch one officer search his suitcase. The officer found nothing. However that was not the end of this “consensual encounter.” Based on his experience that smugglers “move their stash between checked and carry-on bags," the officer went onto the bus and took a paper bag and CD case from the rack above where Tubens had been sitting. He didn’t find anything in those containers either. Despite strike two, the court stated “common experience suggested [Tubens] was probably carrying additional luggage . . .” so the officer was justified in going back on the bus again. On board he told all the passengers to take their luggage off the racks and put it on their laps. Once all the bags were off the rack, the officer saw a black bag near Tubens seat. He demanded that someone claim the bag and no one did, so he took it off the bus. He confronted Tubens with the bag and Tubens said it wasn’t his. The officer asked for and got consent from the bus driver to open the bag. Unfortunately, he found 2 prescription pill bottles with Tubens' name and two packages of methamphetamine.

In a published opinion, the court explains that generalized suspicion and hunches can satisfy the particularized and articuable suspicion requirements of the Fourth Amendment: “Inferring from the totality of the circumstances that Tubens likely had another bag on the bus, [the officer] was justified in reboarding the bus and continuing his investigation [even if it took an hour].”