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Nervousness, even to the point of literally shaking in one’s boots, is not reason enough for police officers to detain motorists during traffic stops, the 9th U.S. Circuit Court of Appeals ruled Monday. Even though Jose Trinidad Chavez-Valenzuela consented to a roadside search resulting in the discovery of 10.5 kilograms of methamphetamine, a three-judge panel unanimously held that the search came after questioning that was based solely on the driver’s unease and violated the Fourth Amendment. “Encounters with police officers are necessarily stressful for law-abiders and criminals alike,” wrote Judge Raymond Fisher. “We therefore hold today that nervousness during a traffic stop — even the extreme nervousness Chavez-Valenzuela exhibited here — in the absence of other particularized, objective factors, does not support a reasonable suspicion of criminal activity, and does not justify an officer’s continued detention of a suspect after he has satisfied the purpose of a stop.” Fisher, a past president of the Los Angeles Board of Police Commissioners, was joined by Judge A. Wallace Tashima and U.S. District Judge Thomas Zilly, sitting by designation. Chavez-Valenzuela had been pulled over by the California Highway Patrol for following another car too closely while driving on Interstate 40 in February 1999. Chavez-Valenzuela’s license and registration came back clean, and no ticket was issued. During the stop the officer noticed that Chavez-Valenzuela’s hands were shaking violently. Later, his whole body trembled and he avoided making eye contact. The officer asked the motorist if he had any drugs, which he denied. Chavez-Valenzuela then gave the officer permission to search his car, which turned up a nylon bag containing several packets of methamphetamine. He was later sentenced to 14 years in prison. The problem, Fisher wrote, was not with the traffic stop itself, but that the officer detained Chavez-Valenzuela after he was free to go and began asking questions about drugs based on the driver’s evident nervousness. “Having crossed the line in further detaining Chavez-Valenzuela and questioning him directly about drug possession, [the officer's] success in obtaining Chavez-Valenzuela’s ‘consent’ to search his car cannot so easily purge the taint of [the officer's] Fourth Amendment violation,” Fisher wrote. In a footnote, the court also noted that several other questions posed by the officer likely violated the Constitution, including when the officer asked Chavez-Valenzuela what he did for a living. But it noted it need not reach those issues. The panel also noted that its decision in U.S. v. Chavez-Valenzuela, 01 C.D.O.S. 8832, comes close, but is not quite the same as its 1984 decision in U.S. v. Nikzad, 739 F.2d 1431, where drug enforcement agents were held to be justified in questioning a suspect because he stared at officers but moved out of view when they looked back. A spokeswoman for the California Highway Patrol said it was reviewing the decision and had no comment. A lawyer for Chavez-Valenzuela was in trial and unavailable for comment.

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