United States v. Ahmed

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 10, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-4092
(D.C. No. 2:16-CR-00021-JNP-1)
TOHEED AHMED, (D. Utah)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, MURPHY, and EID, Circuit Judges.
_________________________________
Defendant-Appellant Toheed Ahmed appeals the district court’s denial of his
motion to suppress evidence derived from a dog-sniff of his vehicle. He contends
that the police conducted the dog-sniff after the traffic stop had already terminated,
and that therefore they needed reasonable suspicion to prolong the stop to conduct
the dog-sniff. He argues that the police did not have such reasonable suspicion, and
that the district court therefore should have granted his motion to suppress evidence
stemming from the search.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district
court’s denial of Ahmed’s suppression motion, finding that the police had reasonable
suspicion to prolong the stop to conduct the dog-sniff.
I.
At around 2:35 a.m. on August 26, 2015, a police officer observed Ahmed
drive his vehicle along the shoulder of a street before switching lanes and then
pulling into the parking lot of a motel that was known as a high crime location. The
officer entered the parking lot and stopped his patrol car behind Ahmed’s vehicle,
initiating the traffic stop. There were two passengers in Ahmed’s vehicle—a woman
in the front seat and a woman in the back-right seat. When the officer exited his
patrol car and walked toward Ahmed’s vehicle, the backseat passenger opened the
back-right door and began to stand up. The officer told the passenger to remain in
the car. But as the officer continued toward the vehicle, the backseat passenger again
attempted to exit, this time completely getting out of the car. The officer again
instructed her to stay in the car, and she complied.
When the officer arrived at the driver’s side door, Ahmed—the driver—was
rolling up his window. Ahmed then began talking with the two passengers in the car.
He turned his head, looked at the officer through his window, then resumed his
conversation with the two passengers. The officer drew his firearm after witnessing
Ahmed’s behavior.
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When Ahmed eventually rolled down his window, the officer observed that
both passengers were unbuckled. The officer also observed the backseat passenger
dousing herself with cologne.
The officer obtained Ahmed’s driver’s license and proof of insurance. Ahmed
was unable to produce proof of registration because, according to him, he had just
purchased the vehicle days prior and had yet to register it. The officer therefore
requested a bill of sale in lieu of the registration. While Ahmed looked for his bill of
sale, the officer returned to his patrol car and ran a data-check revealing that Ahmed
had no outstanding warrants and that the vehicle was unregistered.
The officer returned to Ahmed’s vehicle. Upon retrieving the bill of sale, he
walked over to the other side of the car and asked the front passenger for her name.
The front passenger provided a false name, “Amber Solona,” and stated that she had
California identification. After running this name through Utah and California
databases, the officer was unable to find a person with the name of “Amber Solona”
matching the passenger’s description. The officer went back to Ahmed’s vehicle and
placed the front passenger under arrest for providing a false name. He then brought
her back to his patrol car to ascertain her real name and subsequently check to see if
she had any outstanding warrants. It took the officer roughly 90 minutes to learn the
passenger’s real identity.
While the officer was speaking with the front passenger in his patrol car,
another officer—who had arrived as “back up”—conducted a dog-sniff around
Ahmed’s vehicle at 2:50 a.m. The dog signaled that narcotics were located inside the
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vehicle; and upon a subsequent search, the officers found syringes, drug
paraphernalia, cocaine, and methamphetamine inside the car.
Ahmed was charged under 21 U.S.C. § 841(a)(1) with possession of narcotics
with an intent to distribute. During the lower court proceeding, Ahmed moved to
suppress the evidence gathered from the dog-sniff. But the district court denied
Ahmed’s motion to suppress, finding that the stop was still ongoing during the dog-
sniff and that even if the stop had terminated beforehand, the police had reasonable
suspicion to prolong the stop for the search. Ahmed eventually pleaded guilty but
conditioned his plea on his ability to appeal the admission of the drugs into evidence.
He now appeals, arguing that the dog-sniff was unconstitutional for two
reasons. First, he argues that the traffic-stop of Ahmed and his vehicle had
terminated before the dog-sniff occurred, requiring the officers to have reasonable
suspicion in order to prolong the stop and conduct the search. Second, he contends
that because the police lacked reasonable suspicion to prolong the stop, the
subsequent search was unconstitutional, and evidence derived therefrom was
inadmissible.
II.
We review de novo a lower court’s denial of a motion to suppress. United
States v. Polly, 630 F.3d 991, 996 (10th Cir. 2011). In doing so, we view the
evidence in a light most favorable to the government and accept the district court’s
findings of fact unless they are clearly erroneous. Id.4
The district court denied Ahmed’s motion to suppress the narcotics on two
grounds. The first was that the stop had not terminated prior to the dog-sniff. And
the second was that, even if the stop had terminated prior to the dog-sniff, the police
had reasonable suspicion to prolong the stop for the search. Such reasonable
suspicion, the court reasoned, was supported by the following facts: (1) the backseat
passenger twice tried to exit the vehicle, (2) the defendant rolled up his window and
initially ignored the officer at the beginning of the stop, and (3) the backseat
passenger doused herself with cologne. We decline to review the issue of whether
the stop had terminated prior to the dog-sniff because we agree with the district court
that the police ultimately had reasonable suspicion to prolong the stop.
A.
Police need reasonable suspicion to prolong a traffic-stop to conduct a dog-
sniff. United States v. Pettit, 785 F.3d 1374, 1379 (10th Cir. 2015). Police have
“reasonable suspicion” if they have a “‘particularized and objective basis for
suspecting’ criminal conduct under a totality of the circumstances.” Id. (quoting
United States v. Cortez, 449 U.S. 411, 417–18 (1981)).
Factors that are typically “consistent with innocent travel” may contribute to
reasonable suspicion depending on the circumstances. United States v. Valles, 292
F.3d 678, 680 (10th Cir. 2002) (quoting United States v. Sokolow, 490 U.S. 1, 9
(1989)). For example, this court in United States v. Ludwig found that an officer had
reasonable suspicion to conduct a dog-sniff of a vehicle partially because he noticed
an “overpowering smell of cologne when [the driver] rolled down his window.” 641
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F.3d 1243, 1248 (10th Cir. 2011). While acknowledging that the use of cologne was
“consistent with lawful activity,” we also noted that it is “commonly used to mask
the odor of drugs.” Id. (quoting United States v. Ortiz-Ortiz, 57 F.3d 892, 895 (10th
Cir. 1995)) (quotations omitted). We have similarly found that a driver’s odd use of
his window can contribute to reasonable suspicion. See United States v. Ludlow, 992
F.2d 260, 264 (10th Cir. 1993). In affirming the lower court’s denial of a
suppression motion in Ludlow, this court accepted the lower court’s conclusion that
the defendant’s failure to “roll [his] window all the way down . . . raise[d] suspicion
that there was an odor in the car that the driver did not want out.” Id.Defiant behavior and presence in a high-crime area can also contribute to an
officer’s reasonable suspicion. In United States v. McHugh, we found reasonable
suspicion to exist partially because the defendant did “not obey[] the armed security
guard’s commands, and . . . tr[ied] to exit the vehicle despite the guard’s orders to the
contrary.” 639 F.3d 1250, 1257 (10th Cir. 2011). A defendant’s presence in a high-
crime area can separately contribute to reasonable suspicion. United States v.
McGehee, 672 F.3d 860, 868 (10th Cir. 2012) (noting the fact that the officer
“encountered the vehicle . . . in front of a residence known to be associated with
drug-trafficking . . . supported [the officer’s] belief that the occupants were engaged
in criminal conduct”); United States v. Clarkson, 551 F.3d 1196, 1201 (10th Cir.
2009); Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (noting that the location of a
traffic-stop in a “high crime area” is one of the “relevant contextual considerations”
when assessing reasonable suspicion).
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B.
Several factors here gave the officer reasonable suspicion to prolong the stop
of Ahmed’s vehicle and conduct the dog-sniff. First, the backseat passenger doused
herself with cologne as the driver rolled down his window. As we found in Ludwig,
an occupant’s use of cologne as a potential masking agent can contribute to
reasonable suspicion. 641 F.3d at 1248. Second, Ahmed’s initial delay in rolling
down the window was suspicious for several reasons. Not only could it have been an
attempt to prevent odor from escaping the car, see Ludlow, 992 F.2d at 263, but it
also could have appeared as defiant behavior. The backseat passenger similarly
exhibited defiance when she repeatedly tried to exit the car contrary to the officer’s
orders. As this court in McHugh found, such defiant behavior can give rise to
reasonable suspicion. 639 F.3d at 1257. Separately, the fact that the traffic-stop
occurred in front of a motel known as a high crime location further contributed to the
officer’s reasonable suspicion. See McGehee, 672 F.3d at 868; Wardlow, 528 U.S. at
124.
The above factors, together under the totality of the circumstances, provided a
“particularized and objective basis” for the officer to suspect criminal activity, and
thus satisfied the reasonable suspicion standard. It is on this ground that we affirm
the district court’s denial of Ahmed’s suppression motion. And because we affirm on
the ground that reasonable suspicion supported the search, we need not consider
whether the stop had terminated prior to the dog-sniff. See United States v. Damato,
672 F.3d 832, 844 (10th Cir. 2012).
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III.
For the reasons stated above, we AFFIRM the district court’s denial of
Ahmed’s motion to suppress.
Entered for the Court
Allison H. Eid
Circuit Judge
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