Page 31 - TPA Journal January - February 2018

suspect that appellant was trafficking drugs. First, been due to the fact that English was not
he noticed that appellant wore a lot of cologne. appellants first language and he possibly had not
The deputy described it as being a very fully understood what the deputy was saying to
overwhelming smell of cologne and more than him.
most people would wear. The deputy testified
that, based on his training and experience, drug By the time that he handed appellant a warning
traffickers frequently use cover odors to cover for speeding, Deputy Simpson testified that he
the odor of the drugs theyre hauling. Second, the had formed reasonable suspicion to believe that
deputy noted that appellant appeared to have been appellant was trafficking drugs based on all of the
chain smoking in the car leaving cigarette ashes all factors described above. Accordingly, at that
over the car in the floorboards and everything as point, Deputy Simpson asked appellant whether
well as the odor of cigarette smoke. Because the car contained drugs, and he also asked for
appellant was driving a rental car with two decals permission to search the vehicle. However, due to
on the windows indicating that smoking was the language barrier, Deputy Simpson was unable
prohibited, the deputy agreed with the suggestion to determine whether appellant consented, and he
that appellants chain smoking was more peculiar instead decided to rely on the use of a drug-
than a person smoking in their every day car. detection dog that had arrived on the scene prior
Furthermore, he opined that a chain-smoking to the moment at which he handed appellant the
driver would probably at least crack the window warning ticket. The dog walked around the
if not roll it down to try to avoid the penalty fee perimeter of the car and alerted to the presence of
for smoking in a rental car. This additionally illegal drugs. After the drug dog alerted, the
appeared to indicate that the car s windows could deputy initiated a search of appellants car and
not be rolled down. discovered a total of approximately twenty
pounds of marijuana in vacuum-sealed plastic
Third, Deputy Simpson agreed that, based on bags that had been concealed inside the car s four
[his] training and experience, based on doing these door panels.
interdiction stops on I-40, [] it [is] pretty common
that people are carrying drugs in rental cars versus Following the denial of his suppression motion,
cars that they own. Fourth, the deputy noticed appellant pleaded guilty and received a sentence
that appellant appeared nervous and excited. of four years imprisonment, probated for four
Although he acknowledged that a little bit of years. The court of appeals reversed the trial
nervousness and excitement would be normal for courts order denying appellants motion to
a stopped driver, Deputy Simpson described suppress. The court of appeals explained that the
appellants state as being one of extreme record was lacking in sufficient details to
nervousness in excess of what he considered establish exactly what type of training or
normal. He noted that appellant was unable to get experience Deputy Simpson had that would allow
comfortable and was constantly shifting in the him to reliably form reasonable suspicion based
seat and crossing his arms and he couldnt sit still, on the otherwise seemingly innocent
even for just a few minutes. Even after the deputy circumstancesthe fact that appellant opened the
informed appellant that only a warning would be passenger door instead of lowering the window,
issued, appellant did not become less nervous, wore heavy cologne, chain smoked, drove a rental
which the deputy viewed as unusual in his car, and was extremely nervous. The court of
experience. The deputy, however, conceded that appeals acknowledged that a law enforcement
appellants confusion and nervousness could have officer may properly develop reasonable

Jan./Feb. 2018 www.texaspoliceassociation.com • 866-997-8282 27