United States v. Martin , 86 F. App'x 364 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 11 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 03-8049
v. (D.C. No. 02-CR-206-B)
(D. Wyo.)
VINCENT L. MARTIN,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **
Mr. Martin was convicted upon a conditional plea of guilty of possession
with intent to distribute marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(C), and
sentenced to 40 months imprisonment followed by three years supervised release.
He was also fined $5,000. On appeal, Mr. Martin cosntests the denial of his
motion to suppress, arguing that the state trooper lacked a reasonable articulable
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
suspicion to detain him, and that his detention and the subsequent search of his
vehicle were in violation of the Fourth Amendment. Our jurisdiction arises under
28 U.S.C. § 1291 and we affirm.
Background
Mr. Martin’s troubles began when he was stopped on I-80 in Wyoming for
speeding 82 m.p.h. in a 75 m.p.h. zone. While requesting his driver’s license and
registration, the state police trooper noticed two large duffel bags in the rear
cargo area of Mr. Martin’s sport-utility vehicle and a strong odor of air freshener.
According to the trooper, Mr. Martin was extremely nervous, avoiding eye
contact, even after learning he would receive a warning. The trooper also
testified that Mr. Martin was unable to name the registered owner of the vehicle,
first stating that the vehicle belonged to “Bryan,” then “Bryan’s uncle,” and
finally “Mark,” last names not given. The trooper also learned that Mr. Martin
was traveling from California to Minnesota, and the trooper considered this
significant because, based upon his training and experience, he considered the
former a source state for illicit drugs and the midwest a distribution area.
Mr. Martin received a warning and the trooper returned his documents.
Thereafter, Mr. Martin agreed to answer a few additional questions and denied
that he had any contraband in the vehicle, though he declined to consent to a
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search of the vehicle. The trooper then held Mr. Martin for approximately an
hour, pending the arrival of the closest available dog handler (and dog) located
some 78 miles away. The drug dog alerted and 131 pounds of marijuana was
discovered in two large duffle bags in the rear cargo area.
Discussion
We review the district court’s findings of historical fact for clear error and
in the light most favorable to the prevailing party, and its legal conclusions on
Fourth Amendment reasonableness including reasonable suspicion and probable
cause de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). Mr. Martin
does not challenge his initial stop for speeding, but rather his continued detention
beyond after receiving the written warning. Mr. Martin suggests that (1) each of
the factors relied upon by the trooper might be innocent, (2) the trooper’s
continued detention of him was based upon a hunch that was not confirmed until
he refused to consent to search, and (3) a reasonable investigation would have
allowed an opportunity for Mr. Martin to provide innocent reasons for the neutral
factors that the trooper relied upon. He concludes by stating that the search of the
vehicle was a product of retaliation for exercising his right to refuse a search and
that he was detained for an unreasonable amount of time.
The district court relied upon the factors set out above to conclude that the
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trooper had reasonable suspicion to detain Mr. Martin pending the arrival of the
dog handler and that once the dog alerted, probable cause existed to search the
vehicle. Aplt. Br. Attach. Order at 7-8; 2 R. at 61-62. An officer need only have
reasonable articulable suspicion that criminal activity is afoot to justify a brief
investigative detention. Terry v. Ohio, 392 U.S. 1, 30 (1968). The Supreme
Court has repeatedly held that it is the totality of the circumstances, not the
supporting factors taken in isolation, that must be considered in deciding whether
the facts support reasonable suspicion. United States v. Arvizu, 534 U.S. 266,
273 (2002); United States v. Cortez, 449 U.S. 411, 417-19 (1981).
We agree with the district court that the factors discussed above are
indicative of reasonable suspicion, and that once the dog alerted, there was
probable cause. United States v. Souza, 223 F.3d 1197, 1205 (10th Cir. 2000).
Although reasonable suspicion may not be based upon a refusal of consent to a
search, see United States v. Williams, 271 F.3d 1262, 1268 (10th Cir. 2001), cert.
denied, 535 U.S. 1019 (2002), the objective facts known to the trooper certainly
support reasonable suspicion prior to the refusal. See Whren v. United States,
517 U.S. 806, 813 (1996); see also 2 R. at 26-27 (trooper recounting facts he
relied upon). Finally, a law enforcement officer may rely upon his training and
experience without inquiring of a defendant as to innocent explanations. See
Arvizu, 534 U.S. at 273.
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The colorable issue in this appeal is the approximately one-hour delay
between Mr. Martin’s detention and the arrival of the dog handler and his dog.
But given the abundant reasonable suspicion in this case and the diligence by both
the trooper and the handler to expedite the dog sniff, the delay was reasonable and
not violative of the Fourth Amendment. See United States v. Place, 462 U.S. 696,
709-10 (1983) (“[I]n assessing the effect of the length of the detention, we take
into account whether the police diligently pursue their investigation.”); Williams,
271 F.3d at 1271 (upholding detention founded upon reasonable suspicion where
15 minutes elapsed from initial stop to arrival of dog); United States v. Villa-
Chaparro, 115 F.3d 797, 802-03 (10th Cir. 1997) (upholding detention founded
upon reasonable suspicion where 43 minutes elapsed from initial stop to arrival of
dog); United States v. Rutherford, 824 F.2d 831, 833-34 (10th Cir. 1987)
(upholding one-hour detention founded upon reasonable suspicion where 25-30
minute delay was caused by a computer problem).
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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