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Chisholm v. Commonwealth — Court of Appeals opinion, Record 1830-24-1

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on speculation rather than objective, particularized facts. Accordingly, the trial court erred in crediting the “high crime area” factor in its reasonable suspicion analysis. Even when the evidence is viewed in the light most favorable to the Commonwealth, the Commonwealth does not support its claim that Chisholm exhibited any signs of nervousness rising beyond ordinary reactions to police presence. Therefore, the trial court’s acceptance of that inference was plainly wrong. The Commonwealth relied heavily on Chisholm’s alleged nervousness to justify the detention, but the record reflects nothing more than ordinary, generalized reactions that courts have repeatedly held are insufficient to establish reasonable suspicion. At the suppression hearing, the Commonwealth argued that Chisholm appeared “visibly nervous” when officers approached him because his “breath rate change[d],” which Officer Smith characterized as “a very abnormal reaction.” “Generally, however, ‘nervousness is of limited significance in determining reasonable suspicion.’” United States v. Jones, 269 F.3d 919, 928 (8th Cir. 2001) (quoting United States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994)). “Although there are a plethora of cases referring to a defendant appearing nervous, nervousness is generally included as one of several grounds for finding reasonable suspicion and not a ground sufficient in and of itself.” United States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995) (footnote omitted). “[W]hile a person’s nervous behavior may be relevant, we are wary of the objective suspicion supplied by generic claims that a Defendant was nervous or exhibited nervous behavior after being confronted by law enforcement officials.” United States v. Barron- Cabrera, 119 F.3d 1454, 1461 (10th Cir. 1997) (quoting United States v. Peters, 10 F.3d 1517, 1521 (10th Cir. 1993)). Moreover, “it is common for most people ‘to exhibit signs of nervousness when confronted by a law enforcement officer’ whether or not the person is currently engaged in criminal activity.” United States v. Salzano, 158 F.3d 1107, 1113 (10th Cir. - 20 -
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