                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                         October 3, 2012

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 EDUARDO ARENCIBIA,

        Plaintiff - Appellant,

 v.                                                          No. 11-3376
                                                   (D.C. No. 2:09-CV-02581-KHV)
 RICHARD BARTA; TRACEY                                        (D. Kan.)
 TRAMMEL; BRAD METZ; PHIL
 HIGDON; SAM LEONE; MICHAEL
 KOLBEK,

        Defendants - Appellees.


                                 ORDER AND JUDGMENT*


Before KELLY, HOLLOWAY, and MATHESON, Circuit Judges.


      In 2009, Plaintiff-Appellant Eduardo Arencibia filed a 42 U.S.C.§ 1983 action

against Richard Barta, Tracey Trammel, Brad Metz, Phil Higdon, Sam Leone, and

Michael Kolbek (collectively, the “Defendants”), all officers with the Shawnee County

Sheriff’s Department. Mr. Arencibia claimed the Defendants violated his Fourth

Amendment right to be free from unlawful search and seizure during a traffic stop. The

       * This order and judgment is not binding precedent, except under the doctrines of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.
district court granted the Defendants’ motion for summary judgment based on qualified

immunity, and Mr. Arencibia appealed. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.

                                 I.   BACKGROUND

       A. Factual History

       On November 7, 2007, Deputy Trammel stopped Mr. Arencibia’s semi-truck for

“failure to maintain a single lane,” a traffic violation. Arencibia v. Barta, 09-CV-2581-

KHV, 2011 WL 5827634, at *2 (D. Kan. Nov. 18, 2011). While walking to the front of

the truck to speak with Mr. Arencibia, Deputy Trammel observed signs of “ghosting,”

where several different logos have been removed from the side of the trailer.1 Deputy

Trammel entered the cab of Mr. Arencibia’s truck on the passenger side to ask where he

was going and whether he was having mechanical problems. Mr. Arencibia appeared

excessively nervous and gave Deputy Trammel several inconsistent answers. When

Deputy Trammel asked whether he was having mechanical trouble, Mr. Arencibia

initially said he was not. He later said he was having engine problems and had taken the

truck to a mechanic in New Jersey but had not had the truck fixed.2 When asked what he

was hauling, Mr. Arencibia initially said he had no bill of lading and was returning from


       1
         Deputy Trammel testified that ghosting is a sign the truck has changed owners
several times and might have been involved in narcotics trafficking.
       2
          Mr. Arencibia was unable to produce any documentation of the $4,000 estimate
for the truck repair. [Aplt. App. at 34.]

                                            -2-
hauling watermelons to Massachusetts. But a bill of lading, which Mr. Arencibia

produced a few minutes later, listed cantaloupes as the cargo.

       In addition to Mr. Arencibia’s nervousness and inconsistent responses, Deputy

Trammel observed several “red flags” that made him suspect Mr. Arencibia was involved

in illegal activity. For example, the deputy did not believe a truck driver would drive an

empty truck cross-country, resulting in a profit loss, or that he would willingly drive a

truck with known engine problems and risk the “astronomical” towing costs that would

be incurred if it broke down. Id. at 3. Deputy Trammel, a former truck driver, knew it

was not common practice in the industry to lock an empty truck, and Mr. Arencibia

locked his truck even though he claimed it was empty.

       Deputy Trammel also saw inconsistencies with the dates in Mr. Arencibia’s log

book and found a truck weigh ticket from Albuquerque, New Mexico, but not one from

Phoenix, where Deputy Trammel thought he should have weighed the truck. Finally,

Deputy Trammel noticed that Mr. Arencibia had recently retitled the truck. Mr.

Arencibia said he had purchased the truck from a friend, whose name he could not

remember, and he was paying the friend in installments. Deputy Trammel found the

payment arrangement suspect because drug carriers often retitle trucks and because the

seller had no recourse if Mr. Arencibia defaulted on his payments. All of these




                                             -3-
discrepancies, combined with Deputy Trammel’s knowledge of truck driving practices,3

made him suspect Mr. Arencibia was involved in illegal activity.

       In addition to taking Mr. Arencibia’s license, registration, logbook, and other

paperwork back to his car to run routine checks, Deputy Trammel called the El Paso

Intelligence Center (“EPIC”)4 to check on Mr. Arencibia’s immigration status and inquire

about any warrants or prior case involvement. Deputy Trammel learned that in 2004, Mr.

Arencibia had been a passenger in a truck from which law enforcement officers seized

large quantities of cocaine and marijuana. Deputy Trammel believed Mr. Arencibia was

arrested in that incident.

       After Deputy Trammel ran the background search, at least three other officers had

arrived, including Sergeant Metz. Before returning to Mr. Arencibia’s truck, Deputy

Trammel told Sergeant Metz about his suspicions that Mr. Arencibia was transporting

drugs, listing all the “red flags” he had noted.

       Deputy Trammel then returned to the cab of Mr. Arencibia’s truck, issued Mr.

Arencibia a warning, returned his driver’s license and other paperwork, and said, “I




       3
         At the time of the stop, Deputy Trammel was an instructor in prevention of drug
trafficking and held a commercial truck driver’s license.
       4
        EPIC is a federally funded and managed facility that provides information from a
database of criminal and immigration information.

                                              -4-
appreciate it.” Arencibia, 2011 WL 5827634 at *4.5 He did not specifically tell Mr.

Arencibia he was free to leave. Without leaving the truck, Deputy Trammel asked

whether he could ask Mr. Arencibia a few more questions, and Mr. Arencibia said,

“Yeah, go ahead.” Id. Deputy Trammel asked Mr. Arencibia about the inconsistencies

on the weigh ticket. Mr. Arencibia explained that he had been trying to fix a weight

distribution problem. Deputy Trammel also asked Mr. Arencibia whether he had ever

been arrested, and Mr. Arencibia said he had not. Finally, Deputy Trammel asked Mr.

Arencibia whether he possessed illegal contraband or money, and Mr. Arencibia said he

did not. Deputy Trammel then obtained Mr. Arencibia’s consent to search the truck.

      Deputy Trammel asked Mr. Arencibia to exit the truck and patted him down. He

found $1,200 in $10 bills, secured with rubber bands, in Mr. Arencibia’s pocket. Deputy

Trammel obtained the keys for the trailer from Mr. Arencibia and reconfirmed that he

had consent to search the truck. Deputy Trammel and Sergeant Metz searched the trailer

and cab of the truck and found a duffle bag in the cabin containing money, which was

packed with fabric softener sheets and bundled with rubber bands. The money was

packaged in a way that matched the appearance of other drug proceeds Deputy Trammel

had seen. Deputy Trammel arrested Mr. Arencibia for possession of drug proceeds, and




      5
          The record shows that when Deputy Trammel returned to the cab of Mr.
Arencibia’s truck with his paperwork, he was either standing on the running board or
sitting in the cab of the truck to speak with him.

                                           -5-
another officer transported him to the Law Enforcement Center (“LEC”), where Sergeant

Higdon interviewed Mr. Arencibia with the help of a translator.

       Deputy Trammel drove Mr. Arencibia’s truck to the sheriff’s office shop,

approximately seven miles from where he had stopped Mr. Arencibia. He experienced

no mechanical issues along the way. At the shop, Deputy Trammel searched the truck

again and found another bag of money, several prepaid cell phones, and a bundle of

weigh station tickets from Phoenix. A certified narcotic detection dog alerted to the

presence of narcotic odor on the bags of money. Deputy Trammel and Sergeant Metz

drove the money to the LEC.

       B. Procedural History

       On November 9, 2007, the Shawnee County District Attorney began proceedings

seeking forfeiture of Mr. Arencibia’s truck, trailer, and currency. The state district court

judge found no constitutional violation and determined Mr. Arencibia had no valid claim

to the money. The court ordered the forfeiture of the money to the state but returned Mr.

Arencibia’s truck and trailer. The Kansas Court of Appeals affirmed. On November 14,

2007, the District Attorney filed a criminal complaint charging Mr. Arencibia with

possession of drug proceeds. On May 30, 2008, a state district court judge dismissed the

criminal charges because the money was in circulation and could not be obtained for

discovery.

       On November 6, 2009, Mr. Arencibia filed a suit against the Defendants for

damages under 42 U.S.C. § 1983, claiming, among other things, that they had violated his
                                             -6-
Fourth Amendment rights. The district court granted the Defendants’ motion for

summary judgment on November 18, 2011, ruling that Mr. Arencibia’s Fourth

Amendment rights were not clearly established and that the Defendants were entitled to

qualified immunity. Mr. Arencibia filed a timely appeal.

                                 II.   DISCUSSION

       Mr. Arencibia appeals the district court’s grant of summary judgment.6 He does

not dispute the constitutionality of his initial traffic stop or the subsequent search. He

challenges his detention by Deputy Trammel, after his papers were returned, as an

unreasonable seizure under the Fourth Amendment. The district court determined that

the Defendants were entitled to qualified immunity because Mr. Arencibia did not

establish that the Defendants violated his clearly established constitutional rights.

       We review the district court’s grant of summary judgment de novo, using the same

standard as the district court, and “may affirm the district court’s order on any grounds

adequately presented below.” Medina v. City & Cnty of Denver, 960 F.2d 1493, 1500

(10th Cir. 1992) overruled on other grounds by Morris v. Noe, 672 F.3d 1185, 1197 n.5

(10th Cir. 2012). Summary judgment is appropriate if no genuine issue of material fact

exists and the moving party is entitled to judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 322–23 (1986); McCarty v. Gilchrist, 646 F.3d 1281, 1284-85


       6
        The Defendants argue that collateral estoppel bars Mr. Arencibia from bringing
his § 1983 claims. Because we affirm the district court’s qualified immunity
determination, we need not reach this issue.

                                             -7-
(10th Cir. 2011); see also Fed. R. Civ. P. 56(a). A factual dispute is only “genuine” if the

evidence and the inferences drawn from it, viewed in the light most favorable to the

nonmoving party, are “such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also

Kerber v. Qwest Group Life Ins. Plan, 647 F.3d 950, 959 (10th Cir. 2011).

       When a defendant raises a qualified immunity defense in a § 1983 case, we review

summary judgment orders “differently.” Medina v. Cram, 252 F.3d 1124, 1128 (10th

Cir. 2001). The plaintiff must meet a “heavy two-part burden.” Id. First, he must show

that his constitutional rights were violated. Hope v. Pelzer, 536 U.S. 730, 736 (2002);

Cram, 252 F.3d at 1128. Then, the plaintiff must show that those rights were “clearly

established” so that “it would be clear to a reasonable officer that his conduct was

unlawful in the situation.” Saucier v. Katz, 533 U.S. 194, 201-02 (2001); Medina, 252

F.3d at 1128. Failure to show either would be fatal to his claim. Thus, Mr. Arencibia

must show that the law clearly establishes that his detention was unreasonable.

       A. Detention After a Traffic Stop

       After an initial traffic stop by an officer, “further detention [of the driver] for

purposes of questioning unrelated to the initial traffic stop is impermissible unless: (1) the

officer has an objectively reasonable and articulable suspicion that illegal activity has

occurred or is occurring, or (2) the initial detention has become a consensual encounter.”

United States v. Bradford, 423 F.3d 1149, 1156-57 (10th Cir. 2005) (emphases added).


                                              -8-
Thus, Deputy Trammel could constitutionally detain Mr. Arencibia beyond the initial

traffic stop under either justification. Id.

       As we explain below, the law does not clearly establish that Deputy Trammel

lacked reasonable suspicion in this context. Therefore, qualified immunity applies, and

we affirm the district court’s grant of summary judgment. Because we find that Deputy

Trammel had reasonable suspicion of illegal activity, we need not address whether Mr.

Arencibia’s consent was voluntary.

       B. Reasonable Suspicion and Totality of the Circumstances

       Reasonable suspicion is based on the “totality of the circumstances.” United

States v. Arvizu, 534 U.S. 266, 273 (2002). We do not evaluate factors, such as the “red

flags” identified by Deputy Trammel, in a vacuum. Instead, we look at them as a whole,

combined with the officer’s experience and training, to determine if he had a

“particularized and objective basis” for suspecting illegal activity. Id. at 273. For

example, in Bradford, we held that an officer had reasonable suspicion to detain a driver

based on a set of factors, any one of which could have had an innocuous connotation: the

presence of a cellular phone, luggage, and food wrappers; the driver’s nervousness;

inconsistencies and improbabilities in the driver’s answers; and the driver’s one-way car

rental. 423 F.3d at 1157.

       Deputy Trammel identified multiple bases for his suspicion, which he told to

Sergeant Metz before continuing his detention of Mr. Arencibia. These “red flags”

included Mr. Arencibia’s excessive nervousness, see United States v. Contreras, 506 F.3d
                                               -9-
1031, 1036 (10th Cir. 2007); United States v. Williams, 271 F.3d 1262, 1269 (10th Cir.

2001); the ghosting on the trailer; Mr. Arencibia’s decisions to haul a locked, empty

trailer attached to a truck with known mechanical problems across the country; unusual

circumstances surrounding the purchase of the truck; the EPIC report on Mr. Arencibia’s

prior drug involvement, see United States v. Sandoval, 29 F.3d 537, 542 (10th Cir. 1994)

(noting that prior criminal activity can give rise to reasonable suspicion if combined with

other factors); and inconsistencies in the logbook, bill of lading, and weigh station tickets,

see, e.g., United States v. Soto, 988 F.2d 1548, 1555-56 (10th Cir. 1993); United States v.

Pena, 920 F.2d 1509, 1514 (10th Cir. 1990)). While any one of these “red flags,” if

evaluated on its own, might not give rise to reasonable suspicion, the confluence of so

many factors could give rise to suspicion that is “particularized and objective.” Arvizu,

534 U.S. at 273 (explaining that the combination of multiple, seemingly harmless, factors

could create reasonable suspicion).

       Having identified multiple factors pointing to reasonable suspicion, Deputy

Trammel could not have been on notice that he was violating a clearly established

constitutional right. See Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“The

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”). We agree with the district court

that Deputy Trammel did not violate a clearly established constitutional right and that

summary judgment is appropriate. Qualified immunity shields the Defendants from

§ 1983 liability.
                                            -10-
       C. Mr. Arencibia’s Argument About Reasonable Suspicion After the Initial
          Traffic Stop

       Mr. Arencibia concedes that Deputy Trammel identified several “red flags”

demonstrating his “reasonable and articulable suspicion to question [Mr.] Arencibia on

matters unrelated to the initial traffic stop.” Aplt. Reply Br. at 2. Nonetheless, Mr.

Arencibia argues those “red flags” became irrelevant once Deputy Trammel returned Mr.

Arencibia’s paperwork. In his view, Deputy Trammel based his further detention on the

belief that the encounter had become consensual.

       Mr. Arencibia supports this argument using a “bright line rule” that officers must

return drivers’ paperwork before an encounter can become consensual. See United States

v. Elliott, 107 F.3d 810, 814 (10th Cir. 1997). As Mr. Arencibia is quick to note, simply

returning paperwork is not sufficient to transform a detention into a consensual encounter

when other factors would make a reasonable driver feel that he was not free to leave.

Nonetheless, we are not aware of any authority establishing that an officer’s return of a

driver’s documents extinguishes reasonable suspicion as an independent justification for

further questioning.7 Indeed, our decision in Bradford supports continued detention after

the initial traffic stop based on the driver’s consent or reasonable suspicion of criminal

activity. Bradford, 423 F.3d at 1156-57 (10th Cir. 2005).


       7
         In his brief, Mr. Arencibia cited no authority to support this assertion. At oral
argument, his counsel cited Bradford and Florida v. Royer, 460 U.S. 491 (1983). Neither
of those cases holds that an officer must rely only on consent, to the exclusion of
reasonable suspicion, once a driver’s paperwork has been returned.

                                            -11-
       Deputy Trammel’s reasonable and articulable suspicion that Mr. Arencibia was

involved in transporting illegal drugs or related materials warranted his continued

detention of Mr. Arencibia after the initial traffic stop. The law does not clearly establish

that officers with reasonable suspicion of criminal activity cannot continue questioning

after the initial traffic stop. Thus, the Defendants are entitled to qualified immunity.8

                                III.   CONCLUSION

       Because the law does not clearly establish that Deputy Trammel lacked a

“reasonable and articulable suspicion” based on the red flags he listed, we affirm the

district court’s grant of summary judgment based on qualified immunity.

                                           ENTERED FOR THE COURT



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




       8
         We view Mr. Arencibia’s Fourth Amendment claim as applying to Deputy
Trammel and Sergeant Metz. However, to the extent that any of the other officers named
as Defendants are implicated, qualified immunity applies to them for the reasons stated in
this opinion. Therefore, summary judgment as to all Defendants is affirmed.

                                             -12-
