In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐3626
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
KENYON R. WALTON,
Defendant‐Appellant.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:12‐cr‐30266‐MJR‐1 — Michael J. Reagan, Chief Judge.
ARGUED MAY 23, 2016 — DECIDED JUNE 30, 2016
Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Illinois State Trooper Nate McVicker
pulled over defendant‐appellant, Kenyon Walton, in Madison
County, Illinois, on August 29, 2012, for routine traffic viola‐
tions. During the course of the traffic stop, Officer McVicker
discovered that Walton possessed a large quantity of cocaine.
Walton was indicted on September 5, 2012, in a single count for
possession with intent to distribute cocaine in excess of five
2 No. 15‐3626
kilograms, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(ii)
and 18 U.S.C. § 2.
On October 22, 2012, Walton filed a motion to suppress the
cocaine, arguing that the traffic stop violated his Fourth
Amendment rights. There was a hearing on the motion on
January 29, 2015.1 At the hearing, Officer McVicker testified
regarding the incident and the government submitted an
audio/video recording captured on Officer McVicker’s dash‐
board camera. The district court denied Walton’s motion on
August 10, 2015, and Walton appealed. We affirm the denial of
the motion to suppress.
I. BACKGROUND
At approximately 8:43 a.m. on August 29, 2012, Officer
McVicker pulled over a 2012 Chevrolet Suburban with Colo‐
rado license plates that was traveling eastbound on Interstate
70 in Madison County, Illinois. The vehicle contained two
people: Darrallyn Smoot, the driver, and Walton, a passenger.
Officer McVicker pulled the Suburban over because it was
traveling 68 mph in a 65 mph zone, it was following the vehicle
in front of it too closely, and it appeared that Walton was not
wearing his seatbelt, a violation of Illinois law.
As Officer McVicker exited his squad car and walked
towards the Suburban, he observed that it contained only two
1
The district court originally ruled that Walton lacked Fourth Amendment
standing, which we reversed and remanded the case for further proceed‐
ings. See United States v. Walton, 763 F.3d 655, 656 (7th Cir. 2014). At that
time, we did not rule on whether the search and seizure were reasonable.
Id. at 657 n.2.
No. 15‐3626 3
people and one piece of luggage. Officer McVicker approached
the passenger window and spoke to Smoot and Walton. He
informed them that he intended only to issue a written
warning, as opposed to a ticket. Walton told Officer McVicker
that they had been stopped by police in Kansas the previous
evening and had received a written warning for an improper
signal. Walton gave the written warning to Officer McVicker.
The warning noted that Walton was driving at that time with
a suspended driver’s license. Walton said that they were
stopped for two hours and that the police officers had searched
their vehicle. Walton also said that the Suburban was a rental
car, and he provided Officer McVicker with the rental agree‐
ment. Officer McVicker learned from the rental agreement that
the Suburban had been rented at the Denver International
Airport, that the vehicle cost almost $1,000 to rent (including
the deposit), and that Smoot was not an authorized driver.
Since Walton had a suspended license and Smoot was not an
authorized driver, neither individual could legally drive the
Suburban. Officer McVicker informed Walton that he could
have the vehicle towed, but was not going to do so.
Officer McVicker then asked the two about their travel
plans. He learned that both Smoot and Walton were from
Ohio. According to Walton, Smoot had driven her own car
from Ohio to Colorado to visit her friends, but her car broke
down while she was in Colorado. Walton, her boyfriend, flew
to Colorado and rented the Suburban at the Denver Interna‐
tional Airport to drive them both back to Ohio.
Officer McVicker testified that during this conversation,
Smoot appeared “extremely nervous,” as “her heartbeat
[became] visible through her chest” and “her breathing pattern
4 No. 15‐3626
was extreme.” He testified that her nervousness did not
decrease even after he informed her that he was only issuing
a warning, instead of writing a ticket or having the vehicle
towed. Officer McVicker testified that in his experience, when
most innocent motorists are informed that they are only
receiving a warning, the general anxiety of getting pulled over
subsides.
Officer McVicker testified that in his training and experi‐
ence, he can determine within one minute of pulling a car over
whether there is anything that may build up or lead to reason‐
able suspicion of criminal activity. During that time, he looks
for numerous indicators that suggest either that the motorist is
innocent or that the stop should continue to confirm or dispel
any notion of criminal activity. About three minutes into this
traffic stop, Officer McVicker testified that he could not dispel
the notion that Smoot and Walton were involved in criminal
activity. But rather than tow the car and conduct an inventory
search, Officer McVicker asked Smoot to accompany him to his
squad car while he prepared the written warning.
Officer McVicker and Smoot both entered the squad car
approximately six minutes after he had initially pulled the
Suburban over. As he prepared the warning, Officer McVicker
continued to ask Smoot questions. Officer McVicker testified
that Smoot’s body language throughout this period exhibited
nervousness. He testified that she was breathing heavily, her
heart rate did not decrease, she was shivering despite the
summer weather, and she sat uncomfortably in the seat while
situating herself as close to the passenger door as possible.
Officer McVicker asked her what happened to her car. Smoot
explained that it broke down in Colorado and that she was
No. 15‐3626 5
afraid of flying, which was why Walton flew to Denver to
drive her back. Officer McVicker asked her why she was in
Colorado, and she said she drove out to visit friends.
Officer McVicker also asked why they rented such a large
and expensive car. Smoot replied that Walton rented the car,
not her, and that “guys like trucks.” Officer McVicker
commented that they could have rented a cheaper car to drive
back in. Smoot did not respond to this comment, but noted that
Walton had to fly to Denver because she was unable to rent a
car. Officer McVicker testified that in his experience, criminals
generally rent luxury vehicles and that larger “SUV” vehicles
are better at concealing items because they have more “natural
voids.” Officer McVicker testified that the Suburban rental
caught his attention because the two did not have a need to
rent such a large and expensive vehicle; there were only two
occupants and one bag of luggage, yet the car cost nearly
$1,000 and seated seven to eight passengers.
Officer McVicker asked Smoot about the Kansas stop from
the previous evening. Smoot initially acknowledged that the
stop lasted two hours and said that the Kansas officers were
“being mean,” but then quickly said they were “just doing
their job.” Officer McVicker asked what the Kansas officers
were doing for two hours, Smoot responded that the stop did
not last two hours and that Walton was exaggerating when he
said it had lasted that long. Officer McVicker asked again what
the Kansas officers did during the stop, Smoot answered:
“Nothing. They gave us our ticket and told us to go.” Officer
McVicker asked whether the car was searched, and Smoot said
“No.” Officer McVicker informed her that Walton claimed the
car had been searched, but Smoot denied hearing Walton say
6 No. 15‐3626
that. Officer McVicker testified that he found the inconsisten‐
cies regarding whether the Suburban had been searched by the
Kansas police was indicative of criminal activity. He added
that in his experience, criminals claim their car was searched
earlier to deceive police officers into thinking that there is no
need to search the vehicle again.
Officer McVicker continued to prepare the written warning
for several minutes, while making casual conversation with
Smoot. Officer McVicker asked Smoot when she originally
went to Colorado, and she replied that she drove down three
days ago to see her friends. He continued to ask questions
about her trip. He learned that her car had broken down close
to her friend’s house, that she intended to stay in Colorado
longer before her car broke down, and that Walton flew down
the previous night to pick her up. He also asked what belong‐
ings were in the car. She responded there was nothing in the
car but her bag.
During this time, Officer McVicker checked Smoot and
Walton’s licenses through his dispatch and requested their
criminal histories. The radio operator read Walton’s criminal
history aloud over the dispatch, which included a drug
trafficking offense and multiple other offenses. Around this
time, Officer McVicker finished the paperwork for the written
warning. He gave Smoot a copy, but had her remain in the car
while he went to speak with Walton. Approximately 22
minutes had elapsed since the initial stop.
Officer McVicker approached Walton and asked him if the
Kansas police had pulled him over for two hours. Walton
confirmed that they had. Officer McVicker then asked him why
No. 15‐3626 7
he rented such a large vehicle. Walton replied that it was the
only one available. Officer McVicker testified that he had been
to the Denver International Airport before and that there were
a large number of vehicles available to rent; thus he found
Walton’s explanation “implausible.”
Officer McVicker returned to his squad car and asked
Smoot if she had any questions. He then shook her hand, told
her to “drive safe,” and she exited. Officer McVicker waited a
few seconds after Smoot exited the car, then opened the door
and asked Smoot if he could ask her a few more questions
because he was “confused.” Smoot was near the back of the
Suburban at this point, and stopped to speak with Officer
McVicker. Officer McVicker asked whether the vehicle was
searched in Kansas, and she said that the police had a dog walk
around the car, but that they did not search inside the vehicle.
Officer McVicker then asked her if there was “anything illegal”
in the Suburban. Officer McVicker testified that Smoot hesi‐
tated and looked back at the Suburban before answering “no.”2
He then asked whether specific items were in the car, such as
“large sums of money,” “heroin,” “marijuana,” “cocaine,” or
“weapons.” Smoot answered “no” to each, but Officer
McVicker testified that she hesitated and looked back at the
Suburban again when he asked her if there was any “cocaine”
in the car.
Officer McVicker then asked for Smoot’s permission to
search inside the Suburban, as well as inside her bag. Smoot
consented to a search of her bag, but said that Officer McVicker
2
This conversation occurred outside the dashboard camera’s view.
8 No. 15‐3626
needed Walton’s permission to search inside the Suburban.
Officer McVicker then approached Walton and asked for his
permission to search the vehicle. Walton refused. After Walton
refused, Officer McVicker informed him that he was calling a
canine unit to conduct a sniff around the vehicle, based on the
reasonable suspicion that he had developed by then that the
two were involved in criminal activity. This was approxi‐
mately 29 minutes after Officer McVicker initially pulled
Smoot and Walton over.
Officer McVicker then searched Smoot’s bag, which only
contained a change of clothes for one day. Officer McVicker
had Smoot accompany him back to the squad car. Once they
were both inside the car, he contacted dispatch to request a
canine unit. This was about 33 minutes after the initial stop.
The canine unit arrived approximately 22 minutes after
Officer McVicker’s request to dispatch. Officer McVicker had
Smoot and Walton stand away from the car so that the dog
could conduct the sniff. The canine officer then walked the dog
around the Suburban, which took less than one minute to
complete. The dog alerted the officer that drugs were present
in the vehicle. Officer McVicker then searched the interior of
the Suburban. About seven minutes into the search, Officer
McVicker located cocaine concealed in bags hidden in a void
within the rear driver’s side quarter panel. Smoot and Walton
were arrested.
II. DISCUSSION
Walton argues that the district court erred in denying his
motion to suppress the cocaine because there was no reason‐
able suspicion supporting his continued detention after Officer
No. 15‐3626 9
McVicker completed issuing the written warning to Smoot.
“When reviewing a district court’s decision on a motion to
suppress, we review findings of fact for clear error and
conclusions of law de novo.” United States v. Guidry, 817 F.3d
997, 1005 (7th Cir. 2016) (citation omitted).
Neither party disputes that Officer McVicker lawfully
pulled over the Suburban for perceived traffic violations:
driving 68 mph in a 65 mph zone, following the car in front of
it too closely, and improper seatbelt usage. The United States
Supreme Court has found that officers “may conduct certain
unrelated checks during an otherwise lawful traffic stop.”
Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015). “But …
[an officer] may not do so in a way that prolongs the stop,
absent the reasonable suspicion ordinarily demanded to justify
detaining an individual.” Id. If there is no reasonable suspicion
of criminal activity, a traffic stop can only last as long as it
takes to “address the traffic violation that warranted the stop”
and “attend to related safety concerns.” Id. at 1614 (citations
omitted). “[I]nformation lawfully obtained during that period
may provide the officer with reasonable suspicion of criminal
conduct that will justify prolonging the stop to permit a
reasonable investigation.” United States v. Figueroa‐Espana, 511
F.3d 696, 702 (7th Cir. 2007) (citations omitted).
It was permissible for Officer McVicker to ask Smoot and
Walton questions unrelated to the traffic violations during the
traffic stop. See Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“An
officer’s inquiries into matters unrelated to the justification for
the traffic stop … do not convert the encounter into something
other than a lawful seizure, so long as those inquiries do not
measurably extend the duration of the stop.”). The issue in this
10 No. 15‐3626
case is whether Officer McVicker garnered enough information
to establish reasonable suspicion of criminal activity that
justified further detaining Smoot and Walton after he com‐
pleted the written warning. In analyzing this issue, we examine
the “totality of the circumstances” as they existed prior to the
time Officer McVicker finished issuing the written warning to
Smoot. See United States v. Hill, 818 F.3d 289, 294 (7th Cir. 2016)
(citing United States v. Arvizu, 534 U.S. 266, 273 (2002)).
Within three to four minutes of pulling over Walton and
Smoot, Officer McVicker observed that there were only two
passengers with one bag of luggage in a large Chevrolet
Suburban (which seated seven to eight passengers). In Officer
McVicker’s experience, criminals often rent large luxury
vehicles for the larger areas available to conceal contraband.
Officer McVicker also learned that the car was rented solely for
the purpose of driving two people from Colorado to Ohio at a
rental cost of almost $1,000, a price that seemed excessive to
Officer McVicker, who knew they could have rented a smaller
car that accomplished the same goal for around $100 or $200.
Officers may rely on their experience “to make inferences from
and deductions about the cumulative information available.”
Hill, 818 F.3d at 294 (citation omitted).
And, prior to issuing the written warning, Officer McVicker
discovered that neither Smoot nor Walton was legally entitled
to drive the car; Smoot was not authorized under the rental
agreement and Walton had a suspended license. Officer
McVicker could have towed the car and conducted an inven‐
tory search. We have previously noted that an officer’s right to
legally impound a rental car due to violations of the rental
agreement weakens a defendant’s argument that it was
No. 15‐3626 11
“unjustifiably seized.” See United States v. Sanford, 806 F.3d 954,
959 (7th Cir. 2015).
Further, by the time Officer McVicker issued the warning,
he had heard conflicting stories from Walton and Smoot
regarding how long the Kansas police officers had detained
them the previous evening and whether the car was searched
during that time. He found the inconsistency regarding the
search indicated criminal activity; in his experience, criminals
often claim their car was already searched to dissuade officers
from conducting a “second” search.
Officer McVicker also heard Walton’s lengthy criminal
history read over the dispatch, which included a drug traffick‐
ing offense. United States v. Sanford is factually analogous. In
Sanford, a police officer pulled over a vehicle for speeding and
ran a criminal history check on the passengers. Sanford, 806
F.3d at 956. The check revealed that one of the passengers had
19 arrests for different offenses, including drug offenses. Id.
The officer then requested a canine unit and detained the
vehicle until it arrived. Id. We found that “[t]he criminal
histories that [the officer] uncovered in his computer search
made a compelling case to wait for the dog—the trooper had
reasonable suspicion of criminal activity at that point and so
was justified in prolonging the stop for a reasonable time to
confirm or dispel, with the dog’s assistance, his mounting
suspicions.” Id. at 959. In this case as well, Walton’s extensive
criminal history, which included a drug trafficking offense,
further justified extending the traffic stop beyond the point of
issuing the written warning, in order to further confirm or
dispel Officer McVicker’s “mounting” suspicion that the two
were involved in criminal activity.
12 No. 15‐3626
Finally, after Officer McVicker completed the written
warning, he asked Smoot to remain in the vehicle while he
asked Walton a few more questions. We have previously found
that officers have a “grace period” to ask investigatory ques‐
tions following the completion of a traffic stop, provided that
it does not impose an “inconvenience.” United States v. McBrid‐
e, 635 F.3d 879, 882 (7th Cir. 2011) (citing United States v. Childs,
277 F.3d 947, 954 (7th Cir. 2002) (en banc)). Since Officer
McVicker only spoke with Walton for about two minutes, it
did not constitute an inconvenience. Id. During this brief
questioning, Officer McVicker heard inconsistent stories
regarding why Walton rented the Suburban; Smoot claimed
that Walton rented it because “guys like trucks,” while Walton
provided the implausible explanation that it was the only car
available at the Denver International Airport. Walton also
confirmed that the Kansas stop lasted for two hours, again
conflicting with Smoot’s story.
Walton argues that Officer McVicker did not have reason‐
able suspicion of criminal activity prior to issuing the written
warning. Thus, Walton claims that Officer McVicker violated
his Fourth Amendment rights by continuing to detain him
after handing Smoot the completed written warning and
allowing her to exit the squad car. Walton supports his
argument by focusing on the above events in isolation and
providing an innocent explanation for each. However, we
determine reasonable suspicion based on the totality of the
circumstances; defendants cannot show that a detainment was
unreasonable by simply engaging in a “divide‐and‐conquer”
analysis. See Arvizu, 534 U.S. at 274; see also United States v.
Baskin, 401 F.3d 788, 793 (7th Cir. 2005) (“[B]ehavior which is
No. 15‐3626 13
susceptible to an innocent explanation when isolated from its
context may still give rise to reasonable suspicion when
considered in light of all of the factors at play.”). In considering
the situation in its entirety, we find that Officer McVicker had
reasonable suspicion that Smoot and Walton were engaged in
criminal activity by the time he issued the written warning to
Smoot. Therefore, he was justified in detaining them beyond
the time necessary to complete the written warning in order to
confirm or dispel this suspicion, which ultimately led to the
discovery of the cocaine. The district court properly denied
Walton’s motion to suppress.
Walton argues in the alternative that if there was reason‐
able suspicion to detain him after issuing the written warning,
Officer McVicker still unreasonably prolonged the stop by
failing to diligently request a canine unit to search the vehicle.
He alleges that this unreasonable delay constituted an arrest
without probable cause.
There is no evidence that Officer McVicker did not act
diligently in requesting a canine unit. After he gave Smoot the
written warning, he went to speak with Walton to confirm
whether his story was consistent with Smoot’s, as well as
inquire more about the rental car. He then returned to the car,
told Smoot she could leave, then stopped her to confirm more
details about the Kansas stop as well as ask whether there were
illegal items in the car. He then asked if he could search the car,
to which she deferred to Walton. He asked Walton for his
consent, but was denied. At that point Officer McVicker
informed them he was going to request a canine unit. This all
occurred within roughly ten minutes of when Officer McVicker
gave Smoot the written warning. After that, he searched
14 No. 15‐3626
Smoot’s bag and accompanied her back into his squad car, at
which point he contacted dispatch to request a canine unit.
This took approximately four minutes. Nothing about this
timeline suggests that Officer McVicker did not act diligently
in requesting the canine unit.3
III. CONCLUSION
Therefore, for the foregoing reasons, the ruling of the
district court is AFFIRMED.
3
Furthermore, in the interest of completeness, we note that there was
nothing unreasonable about waiting an additional 22 minutes for the canine
unit to arrive at the scene. See United States v. Martin, 422 F.3d 597, 602 (7th
Cir. 2005) (finding that the canine unit’s approximately 20 minute response
time was not an unreasonable delay).