United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 3, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 03-40353
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AHMED KOFFI HENRY,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
We sua sponte withdraw the opinion of this court dated April 27, 2004, reported at ___ F.3d
___ (5th Cir. 2004). We substitute the following opinion:
Ahmed Koffi Henry appeals his conditional guilty plea conviction for making and possessing
forged securities in violation of 18 U.S.C. § 513(a). In agreeing to plead guilty, Henry reserved the
right to appeal the district court’s denial of his motion to suppress evidence seized during a traffic
stop. Henry now challenges the district court’s suppression ruling. Henry also asserts that the
Government failed to comply with the terms of the plea agreement.
Henry concedes the reasonableness of the initial traffic stop. He argues, however, that the
district court should have suppressed the evidence seized from the trunk of his vehicle because the
arresting officer’s detention of Henry during the traffic stop was not “reasonably related in scope to
the circumstances that justified the stop in the first place.” See United States v. Grant, 349 F.3d 192,
196 (5th Cir. 2003) (stating the second prong of the standard articulated in Terry v. Ohio, 392 U.S.
1 (1968)). Henry’s argument fails because, under the totality of the circumstances, there were
numerous articulable facts supporting the arresting officer’s reasonable suspicion that Henry was
engaged in illegal activity. See Grant, 349 F.3d at 198.
After initiating the traffic stop, the arresting officer questioned Henry regarding the purpose
of his travel. See United States v. Gonzalez, 328 F.3d 755, 758-59 (5th Cir. 2003) (upholding an
officer’s questions, during a legitimate traffic stop, regarding“the purpose and itinerary of [a] trip”).
In response, Henry exhibited extreme nervous behavior, repeated the officer’s questions before
answering, and was unable to detail his travel plans. Specifically, Henry indicated that he was
attending a family reunion in Shreveport, but did not know where he was staying in the city. Henry
also stated that the passengers had the registration paperwork for the rental car. The arresting officer
went to the passengers, requested the rental car’s registration, and, based on Henry’s strange
behavior, questioned the passengers about the purpose of their travel. The passengers also acted
nervous and lacked even rudimentary knowledge about the purpose of the trip. The passengers knew
only that they were going to Louisiana, but did not know their destination city. Additionally, the
passengers did not know why they were going and, thus, failed to support Henry’s statements about
a family reunion. His suspicions aroused, the officer returned t o Henry to inquire about his
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knowledge of and relationship to the passengers. Henry continued to act nervous, and he could not
explain how he knew his passengers. The officer, “draw[ing] on [his] own experience and specialized
training to make inferences from and deductions about the cumulative information available[,]”
suspected that criminal activity might be afoot. See United States v. Arvizu, 534 U.S. 266, 273
(2002). Based on Henry’s nervousness, his inability to provide basic information about his trip or his
passengers, inconsistencies between Henry and his passengers, and Henry’s baggy clothes, the
arresting officer requested and received consent from Henry to perform a pat down. During the pat
down the arresting officer discovered a fake identification protruding from Henry’s sock.1 The
discovery of the fake identification gave the arresting officer probable cause to search the vehicle.
The officer requested permission to search the vehicle, and Henry consented. In sum, there was never
a point at which the arresting officer did not have articulable reasonable suspicion of illegal activity.
See Grant, 349 F.3d at 198.
Henry argues that the officer did not timely initiate a computer check of his background and
that this failure renders the questioning per se unreasonable. No precedent adopts Henry’s contention
that upon initiating a traffic stop an officer must immediately begin a computer check.2 Even
assuming we were inclined to analyze the reasonableness of an officer’s decision regarding when to
initiate a computer check, Henry’s brief is devoid of any attempt to quantify the duration of the
1
On appeal, Henry does not challenge his consent to the pat down or the officer’s discovery of the fake
identification.
2
While he does not cite the case, a previous panel’s decision lends support to Henry’s argument. See United
States v. Brigham, 343 F.3d 490, 501 (5th Cir. 2003) (“If a stop is unconstitutionally prolonged by continued
questioning after a computer check is complete, then delaying the commencement of the computer check and asking
unrelated questions during such delay is equally proscribed.”). However, we vacated Brigham when we agreed to hear
the case en banc. See Brigham, 350 F.3d 1297 (5th Cir. 2003) (granting en banc rehearing); 5TH CIR. R. 41.3.
Further, Brigham would not control because, in this case, Henry does not establish a timeline for the arresting officer’s
questioning.
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officer’s questioning. The absence of a relevant timeline renders it impossible to determine whether
the computer check was unreasonably delayed.
Henry contests the voluntariness of his consent to search his vehicle only to the extent that
his consent followed a detention that he argues violated the Fourth Amendment. As discussed, no
Fourth Amendment violation occurred. The premise for Henry’s argument fails. See United States
v. Chavez-Villareal, 3 F.3d 124, 127 (5th Cir. 1993) (the second prong of a validity of consent
challenge )) “whether it was an independent act of free will” )) depends on “causal connection with
the constitutional violation”).
Henry argues that the Government breached its promise not to take a position on whether
Henry’s sentence should run concurrently or consecutively to Henry’s sentence following a separate
conviction in the Western Dist rict of Louisiana. Because Henry did not raise this issue in the
sentencing court, we review it for plain error only. United States v. Brown, 328 F.3d 787, 790 (5th
Cir. 2003). The record of the sentencing hearing reflects no error given that the Government did not
take a po sition and did not act in a way that was inconsistent with the parties’ reasonable
understanding of the plea agreement. See id. at 790-91.
AFFIRMED.
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