F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 28 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs. No. 00-3365
DALLAS WILLIAMS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 00-CR-10068-WEB)
Submitted on the briefs: *
James E. Flory, United States Attorney and Lanny D. Welch, Assistant United
States Attorney, Wichita, Kansas, for Plaintiff - Appellee.
Daniel E. Monnat, Monnat & Spurrier, Chartered, Wichita, Kansas, for Defendant
- Appellant.
Before KELLY and ANDERSON, Circuit Judges and STAGG **, District Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore
is ordered submitted without oral argument.
The Honorable Tom Stagg, Senior District Judge, United States District
**
Court for the Western District of Louisiana, sitting by designation.
KELLY, Circuit Judge.
Defendant-Appellant Dallas Williams appeals from the denial of his motion
to suppress pursuant to a conditional plea. He was convicted of possession with
intent to distribute approximately 230 pounds of marijuana, and sentenced to
thirty-seven months in prison and a three-year term of supervised release. We
have jurisdiction under 28 U.S.C. § 1291 and we affirm.
Background
On April 22, 2000, at approximately 2:15 p.m., Kansas Highway Patrol
Trooper Mitch Nollette stopped Mr. Williams for going seventy-six miles per
hour in a seventy mile per hour speed zone. The officer, traveling westbound on
Interstate 70, had used radar to clock Mr. Williams, who was traveling eastbound
in a Lincoln Town Car. The officer approached the car and spoke with Mr.
Williams, who was the sole occupant of the vehicle. The officer explained to Mr.
Williams that he had stopped him for speeding and asked to see his license. Mr.
Williams produced an Illinois driver’s license that showed Mr. Williams to be a
resident of Chicago. The officer noticed at the outset of the stop that Mr.
Williams exhibited “exceptional or extreme” nervousness. In making his
assessment of Mr. Williams’ nervousness, the officer noted that Mr. Williams
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spoke with a trembling voice, his upper lip would “twitch somewhat” when the
officer asked a question, and his hand shook visibly when he presented his
driver’s license to the officer. The officer noted that Mr. Williams’ nervousness
never dissipated throughout the entire stop. During this initial approach to the
car, the officer also observed a “walkie-talkie” type radio on the front passenger
seat, several packs of cigarettes in the front interior, and a green duffle bag in the
back seat. The officer recognized the radio as one commonly sold and which had
a range of only one to two miles.
While handing his license to the officer, Mr. Williams stated that the car
was a rental and provided the rental agreement for the car to the officer. Id. at
233. At some point during this initial approach, but while still holding the license
and rental agreement, the officer inquired as to Mr. Williams’ travel plans. Mr.
Williams told the officer that although his sister was from Chicago, she had
traveled from Chicago to Kansas City with a friend. Mr. Williams explained that
his family was having an Easter gathering the following day in Denver, and due to
his sister’s fear of flying, he was driving to Kansas City to pick her up and bring
her to Denver.
The officer brought the materials back to his patrol car and ran a routine
check to ensure the license was valid, which it was. Mr. Williams’ name,
however, appeared nowhere on the rental agreement for the vehicle. Instead, the
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rental agreement contained only the name “Steve Snobl” as a lessee and indicated
that the vehicle had been rented in Phoenix, Arizona. When the officer returned
to the vehicle and questioned Mr. Williams about the discrepancy on the rental
agreement, he explained that Steve Snobl was his uncle and had lent the car to
him for the purpose of picking up his sister. Despite the officer’s indication in
his testimony that Mr. Williams’ nervousness, possession of a radio commonly
used by people driving in tandem, unusual travel plans, and lack of authority to be
in possession of the rental car caused him to be suspicious, the officer returned
the license and rental agreement to Mr. Williams. In addition, the officer said
something to the effect of, “Thanks a lot. We’ll see you.” The officer then,
however, asked Mr. Williams if he would mind answering a few additional
questions, to which he agreed.
The officer first asked Mr. Williams whether he was carrying any
contraband or large amounts of cash to which he stated that he was not. The
officer then asked if he could search the car and Mr. Williams refused. At that
point, the officer informed Mr. Williams that he would detain him there until a
canine unit could come and sniff the outside of the car. At around 2:30 p.m.,
approximately fifteen minutes after the initial stop, the canine unit arrived and
eventually alerted to the trunk area of the vehicle. After obtaining the keys and
opening the trunk, the officer discovered several large bales of marijuana. The
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officer then placed Mr. Williams under arrest, and, after giving his Miranda
rights, questioned him about any other individuals with whom he was traveling.
Mr. Williams told the officer that he was traveling with other individuals who
were driving a Jeep Cherokee. Another officer later located the other vehicle at a
nearby restaurant and found a walkie-talkie type radio of the same type as that
possessed by Mr. Williams in a trash can.
In what it labeled a “close call,” the district court found that the officer in
this case had sufficient reasonable suspicion to detain Mr. Williams for the canine
sniff of the car. The district court was persuaded by the officer’s descriptions of
Mr. Williams’ extreme nervousness. The district court found further that the
officer’s suspicions stemming from Mr. Williams’ possession of the radio and
lack of authority to be in possession of the rental car were entitled to deference in
light of the officer’s experience in detecting criminal activity. Mr. Williams filed
a motion to reconsider asserting that a recent case, United States v. Holt, 229 F.3d
931 (10th Cir. 2000), vacated en banc, United States v. Holt, No. 99-7150, 2001
WL 1013251 (10th Cir. Sept. 5, 2001), required a finding that the questioning of
Mr. Williams regarding his travel plans was unconstitutionally beyond the scope
of the initial stop. The district court denied the motion, concluding that Holt did
not affect “routine questions” about travel plans. In the alternative, the district
court concluded that the discrepancy in the rental agreement provided a
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reasonable relationship between the questioning and the scope of the stop.
On appeal, Mr. Williams argues that (1) the questioning of Mr. Williams about
travel plans exceeded the scope of the initial stop for speeding, and (2) the officer
lacked reasonable suspicion to detain Mr. Williams for fifteen minutes to await
the arrival of the canine drug unit.
Discussion
When reviewing the denial of a motion to suppress, we accept the factual
findings of the district court unless they are clearly erroneous, United States v.
Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998), and view the evidence in the
light most favorable to the district court’s determination. United States v. West,
219 F.3d 1171, 1176 (10th Cir. 2000). On appeal, we consider the totality of the
circumstances and treat the ultimate determination of reasonableness under the
Fourth Amendment as a question of law which we review de novo. Hunnicutt,
135 F.3d at 1348.
The Fourth Amendment protects the “right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. A traffic stop is a “seizure” within the
meaning of the Fourth Amendment, “even though the purpose of the stop is
limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S.
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648, 653 (1979). We have held, however, that a routine traffic stop is more
analogous to an investigative detention than a custodial arrest. Hunnicutt, 135
F.3d at 1348. “We therefore analyze such stops under the principles developed
for investigative detentions set forth in Terry v. Ohio, 392 U.S. 1 (1968).” See id.
To determine the reasonableness of an investigative detention, we make a dual
inquiry, asking first “whether the officer’s action was justified at its inception,”
and second “whether it was reasonably related in scope to the circumstances
which justified the interference in the first place.” Terry, 392 U.S. at 20.
I. Scope of Questioning
Mr. Williams does not question the validity of the initial stop for speeding,
so only the second prong of Terry—whether the officer’s actions were reasonably
related in scope to the stop—is at issue in this case. Mr. Williams argues here, as
he did before the district court in a motion to reconsider, that the panel decision
in United States v. Holt, 229 F.3d 931 (10th Cir. 2000), requires us to rule that
the officer’s questioning regarding Mr. Williams’ travel plans were beyond the
scope of the initial stop for speeding. That decision, however, has since been
vacated after a rehearing en banc. See United States v. Holt, No. 99-7150, 2001
WL 1013251, at *1 (10th Cir. Sept. 5, 2001), vacating 229 F.3d 931 (10th Cir.
2000) [hereinafter “Holt II”].
Holt II stands for the proposition that a “traffic stop based on probable
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cause must be judged by examining both the length of the detention and the
manner in which it is carried out.” Holt II, 2001 WL 1013251, at *13. Mr.
Williams does not argue that the questioning in this case increased the duration of
the stop, but claims that questions related to his travel plans were beyond the
scope of the stop and thus unreasonable even after Holt II. We are not persuaded,
however, that in this case the questioning was outside the scope of the stop.
When directly confronted with the issue, we have repeatedly held (as have other
circuits) that questions relating to a driver’s travel plans ordinarily fall within the
scope of a traffic stop. See West, 219 F.3d at 1176 (stating that “questions about
travel plans are routine and ‘may be asked as a matter of course without
exceeding the proper scope of a traffic stop’”) (quoting United States v.
Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996)); see also United States v.
Santana-Garcia, No. 00-4087, 2001 WL 1012086, at *3 (10th Cir. Sept. 5, 2001)
(quoting West, 219 F.3d at 1176); United States v. Rivera, 867 F.2d 1261, 1263
(10th Cir. 1989); United States v. Hill, 195 F.3d 258, 268 (6th Cir. 1999), cert.
denied, 528 U.S. 1176 (2000); United States v. $404,905.00 in U.S. Currency, 182
F.3d 643, 647 (8th Cir. 1999), cert. denied, 528 U.S. 1161 (2000). Though such
questions do typically fall within the scope of a traffic stop, citizens’ legitimate
privacy interests are protected in that they are not legally obligated to answer such
questions, nor can an officer compel an answer to these routine questions. See
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$404,905.00, 182 F.3d at 647 n.2 (citing Terry, 392 U.S. at 34 (White, J.,
concurring)). In addition, a motorist’s refusal to answer routine questions may
not furnish a basis for arrest, “although it may alert the officer to the need for
continued observation.” Terry, 392 U.S. at 34 (White, J., concurring).
Mr. Williams’ argument that the questions related to travel plans were
outside the scope of the stop also fails because the circumstances that developed
placed the questioning within the scope of the stop. By the time the officer began
this line of questioning, he already knew that the car was a rental due to his
having obtained the rental agreement. While the record indicates that the officer
did not yet know of the inconsistent name on the rental agreement at the time he
asked about travel plans, it was reasonably within the scope of the stop to ask
such questions as the officer began the process of verifying whether Mr. Williams
had lawful possession of the vehicle. See Hunnicutt, 135 F.3d at 1349 (further
questioning justified where the driver had no proof of legal ownership).
Additionally, the officer had already observed Mr. Williams’ extreme nervousness
and the short-range radio on the passenger seat, two factors that, as discussed
infra, contributed substantially to raising the officer’s suspicions. We conclude,
therefore, that the officer’s questioning regarding Mr. Williams’ travel plans was
within the scope of the traffic stop.
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II. Reasonable Suspicion
Mr. Williams next asserts that the officer had no specific, articulable facts
sufficient to provide reasonable suspicion for the detention while awaiting the
arrival of the canine drug unit. During a routine traffic stop, an officer may
request a driver’s license and vehicle registration, run a computer check, and
issue a citation. Hunnicutt, 135 F.3d at 1349 (internal citation omitted). In the
absence of the particular individual’s valid consent, an officer may expand an
investigative detention only if there exists an “objectively reasonable and
articulable suspicion” that criminal activity has occurred or is occurring. Id.
This case does not present a question as to whether Mr. Williams gave the officer
consent to the detention, as he clearly did not. As a result, we must determine
whether sufficient reasonable suspicion existed to support the detention of Mr.
Williams beyond the time required for the initial stop. See United States v.
Wood, 106 F.3d 942, 946 (10th Cir. 1997).
In his brief, Mr. Williams attempts to distill our analysis in an effort to
discount each of the individual factors relied upon by the district court. We
consider it worth repeating that our analysis of whether an investigative detention
is supported by an objectively reasonable suspicion of illegal activity turns on our
review of the totality of the circumstances. United States v. Jones, 44 F.3d 860,
872 (10th Cir. 1995). In doing so, we “judge the officer’s conduct in light of
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common sense and ordinary human experience,” United States v. Mendez, 118
F.3d 1426, 1431 (10th Cir. 1997), and we accord deference to an officer’s ability
to distinguish between innocent and suspicious actions. Wood, 106 F.3d at 946.
Reasonable suspicion, however, may not be derived from inchoate suspicions and
unparticularized hunches. United States v. Sokolow, 490 U.S. 1, 7 (1989).
From the time the officer indicated that Mr. Williams was free to go to the
arrival of the canine drug unit, the only significant event was Mr. Williams’
refusal to allow the officer to search the rental car. From the outset, we recognize
that “consideration of such a refusal would violate the Fourth Amendment.”
Wood, 106 F.3d at 946. Thus, our analysis turns on whether sufficient and
specific articulable facts existed which, when considered together, provided the
officer with reasonable suspicion of criminal activity before he asked for consent
to search the vehicle.
Mr. Williams contends that the district court impermissibly relied upon the
officer’s observations of Mr. Williams’ nervousness as a basis for finding that
reasonable suspicion existed. The district court found that the “specific and
detailed testimony” of the officer regarding Mr. Williams’ trembling hands, shaky
voice, and twitching lip displayed “uncommon and extreme” nervousness. We
have held consistently that nervousness is “of limited significance” in
determining whether reasonable suspicion exists. See United States v. Wald, 216
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F.3d 1222, 1227 (10th Cir. 2000). Extreme and continued nervousness, however,
“is entitled to somewhat more weight.” United States v. West, 219 F.3d 1171,
1179 (10th Cir. 2000). Mr. Williams points to Wood, where the panel concluded
that the officer’s testimony as to the defendant’s rapid breathing, trembling hands,
and throat-clearing constituted a mere “generic claim of nervousness,” and
therefore discounted the nervousness as a factor in its reasonable suspicion
analysis. 106 F.3d at 948. In Wood, however, the officer and the defendant
engaged in casual conversation, including a discussion of the good rate the
defendant had received on the rental car. Id. at 944. Thus, Wood appears to have
involved the more common situation where a citizen exhibits initially “signs of
nervousness when confronted by a law officer,” id. at 948, but then tends to
“settle down” as the traffic stop continues. See West, 219 F.3d at 1179.
In this case, the district court found credible the officer’s testimony that
Mr. Williams’ extreme nervousness did not dissipate throughout the entire stop.
Given our standard of review, the record supports the district court’s finding that
Mr. Williams’ nervousness exceeded that of the average citizen during a routine
traffic stop. While we do recognize that “[n]ervousness alone cannot support
reasonable suspicion of criminal activity,” United States v. Salzano, 158 F.3d
1107, 1113 (10th Cir. 1998) (citing United States v. Fernandez, 18 F.3d 874, 880
(10th Cir. 1994)), we see no reason in this case to ignore Mr. Williams’
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nervousness in reviewing the totality of the circumstances. See West, 219 F.3d at
1179.
Mr. Williams also contends that the presence of a two-way, short-range
radio was too innocuous to provide any support for a finding of reasonable
suspicion. The district court found that the officer knew from experience that
cars traveling in tandem and transporting drugs sometimes used such radios to
avoid detection by law enforcement personnel. Although, as pointed out by Mr.
Williams in his brief, there are numerous legitimate uses for these types of radios,
all of these uses generally involve a link to someone else in close proximity.
Thus, the officer could have reasonably inferred that Mr. Williams was using the
radio to communicate with individuals in a second vehicle. Coupled with this
inference are the officer’s training and experience that provided him with the
knowledge of how drug traffickers use such devices while driving in tandem.
See, e.g., United States v. Inocencio, 40 F.3d 716, 723 n.9 (5th Cir. 1994)
(describing the use of two-way radios by drug smugglers). Finally, Mr. Williams’
description of his travel plans to the officer were inconsistent with a need for
having such a radio on the front passenger seat. While motorists might possess
some items that must be “outrightly dismissed as so innocent or susceptible to
varying interpretations as to be innocuous,” Wood, 106 F.3d at 946 (internal
quotation omitted), such as a cellphone, we find that, in conjunction with the
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other factors and when giving appropriate deference to a trained officer’s ability
to “distinguish between innocent and suspicious circumstances,” United States v.
Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997), the radio in this case contributed
substantially to the officer’s suspicion that criminal activity was afoot.
The district court found that Mr. Williams’ possession of the rental car
without being named in the rental agreement “contributed, to some degree” to a
finding that reasonable suspicion existed. The district court also relied on the fact
that the officer knew from experience that drug couriers often use a third-party
rental car. In addition, the district court found it significant that the car had been
rented in Phoenix, a city that the officer knew from training and experience to be
“a source city for distribution of marijuana.” Id. at 60. Again attempting to turn
our totality of circumstances review into a form of elemental analysis, Mr.
Williams claims these factors could not give rise to reasonable suspicion.
Although we have stated that “the inability to offer proof of ownership or
authorization to operate the vehicle has figured prominently in many of our cases
upholding further questioning,” United States v. Hunnicutt, 135 F.3d 1345, 1349
(10th Cir. 1998), that language typically refers to situations where the inability to
show ownership of, or, authorization to drive the vehicle gives rise to an
“objectively reasonable suspicion that the vehicle may be stolen.” United States
v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994). The officer in this case asked
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one question relating to the name “Steve Snobl” on the rental agreement and was
told by Mr. Williams that the individual was his uncle who had rented the car in
Phoenix. The remaining questions, as well as the subsequent detention of Mr.
Williams, focused on whether Mr. Williams was carrying drugs in his car. Thus,
although the discrepancy provided the officer with justification to detain Mr.
Williams for the purpose of determining whether he was in lawful possession of
the car, detention for the purpose of the canine drug sniff was justified only if the
officer had reasonable suspicion that Mr. Williams was transporting drugs. See
United States v. Jones, 44 F.3d 860, 872 (10th Cir. 1995) (questions regarding
contraband that were concurrent with a legitimate detention were justified only on
reasonable suspicion of drug activity); see also Holt II, 2001 WL 1013251 at *12
(noting that investigations of traffic violations “’are circumscribed by Terry’s
scope requirement’”) (quoting United States v. Botero-Ospina, 71 F.3d 783, 788
(10th Cir. 1995)). But there are other contributing factors related to the
discrepancy in the rental agreement that alerted the officer to the possibility of
drug activity.
The officer knew from his training and experience that drug couriers often
use third-party rental cars. See, e.g., United States v. Figueroa-Lopez, 125 F.3d
1241, 1244 (9th Cir. 1997) (expert testimony that use of a rental car was
consistent with the practices of an experienced drug trafficker); United States v.
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Finke, 85 F.3d 1275, 1280 (7th Cir. 1996) (testimony of officer describing drug
courier practices). The fact that the vehicle had been rented in Phoenix also
raised the officer’s suspicions because, based on his training and experience, he
knew Phoenix to be a “staging area for marijuana to be stored until it’s ready to
move east in the United States.” Standing alone, a vehicle that hails from a
purported known drug source area is, at best, a weak factor in finding suspicion
of criminal activity. In this Circuit alone, police testimony has identified an
extremely broad range of known “drug source areas.” See, e.g., United States v.
Nicholson, 144 F.3d 632, 638 (10th Cir. 1998) (identifying the entire West Coast
as a drug source area); United States v. Scarborough, 128 F.3d 1373, 1378 (10th
Cir. 1997) (Colorado); Wood, 106 F.3d at 947 (California); United States v.
Garrett, 47 F. Supp. 2d 1257, 1265 (D. Kan. 1999) (Texas); see also United States
v. Beck, 140 F.3d 1129, 1138 & n.3 (8th Cir. 1998) (collecting cases and noting
that law enforcement officers have identified a number of drug supply states and a
significant number of the largest cities in the United States as “drug source
cities”).
In this case, however, Mr. Williams provided an explanation of his travel
plans that indicated he was coming from Denver, Colorado. Though the
explanation may have been facially plausible, we cannot brush aside the officer’s
suspicion that arose when he compared the actual source city of the rental vehicle
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to the city that Mr. Williams had identified as his point of departure. We have
stated that answers to questions suggesting an individual is concealing the fact
that he had rented a car in a known drug source area can “give rise to suspicion.”
Wood, 106 F.3d at 947; see also United States v. Salzano, 158 F.3d 1107, 1114
(10th Cir. 1998). While in many cases these factors might arise through innocent
activity, “officers need not close their eyes to suspicious circumstances.”
Hunnicutt, 135 F.3d at 1349.
After reviewing the rental agreement, observing the family band radio,
noting Mr. Williams’ nervousness, and obtaining an explanation of Mr. Williams’
travel plans, the officer nonetheless told Mr. Williams that he was free to go. Mr.
Williams seems to suggest in his brief that this act on the part of the officer
nullified any of the suspicion that developed throughout the stop. We disagree.
The significance of an officer returning a driver’s license and registration
(or rental agreement) assumes paramount importance when we analyze whether an
encounter between a citizen and a law enforcement officer is consensual. See,
e.g., United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000); United States
v. Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996). While we have developed a
bright line in these cases, United States v. McKneely, 6 F.3d 1447, 1451 (10th
Cir.1993), Mr. Williams fails to cite any case, nor can we find any, suggesting
that the return of such documentation negates an officer’s objectively reasonable
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suspicions developed during a traffic stop. Although the record indicates that the
officer subjectively intended that Mr. Williams was free to go, the relevant
inquiry in this case is based on the objective facts known to the officer, not upon
the officer’s subjective state of mind. See Whren v. United States , 517 U.S. 806,
813 (1996); United States v. Sanchez, 89 F.3d 715, 718 (10th Cir. 1996).
Analytically, the only problem the release of Mr. Williams creates is that it
suggests ostensibly that the officer based his detention of Mr. Williams solely on
his refusal to consent to the officer’s request to search the vehicle. If true, this,
of course, would result in an unconstitutional search. Wood, 106 F.3d at 946.
But the facts of this case indicate that this is not true. Whether the officer never
intended to release Mr. Williams or whether he simply changed his mind after the
consensual questioning does not alter our analysis if the officer already had
sufficient reasonable suspicion to detain Mr. Williams for the purpose of the
canine drug search. We therefore conclude that the officer’s indication to Mr.
Williams that he was free to leave bears no significance in our determination of
whether the officer had reasonable suspicion to detain Mr. Williams.
Finally, Mr. Williams also mentions in his brief that the presence of a
single green duffle bag and several cigarette packs could not be suspicious.
Though we may agree with these arguments, we note that the district court did not
rely on these factors in its denial of the motion to suppress. Nor did it need to
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rely on these factors. Under the totality of the circumstances, we conclude that
Mr. Williams’ extreme nervousness, the presence of the short-range radio, and the
discrepancy in the rental agreement all provided the officer with sufficient
reasonable suspicion to detain Mr. Williams for the purpose of performing a
canine drug search. See United States v. Kopp, 45 F.3d 1450, 1453–54 (10th Cir.
1995); United States v. Morales-Zamora, 914 F.2d 200, 203 (10th Cir. 1990).
Further, approximately fifteen minutes elapsed from the time of the initial stop to
the time that the drug detection dog arrived. In the presence of reasonable
suspicion of drug activity, this period of detention was not unreasonable. See
United States v. Villa-Chaparro, 115 F.3d 797, 802–03 (10th Cir. 1997) (finding
forty-three minute wait reasonable in view of officer’s reasonable suspicion).
AFFIRMED.
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