                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     October 18, 2013
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 12-6209
 JULIUS LEE TURRENTINE,                        (D.C. No. 5:12-CR-00001-HE-1)
                                                        (W. D. Okla.)
           Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, KELLY and GORSUCH, Circuit Judges.



      This is a direct appeal by Julius Lee Turrentine following his conviction for

conspiracy to possess with intent to distribute 5 kilograms or more of cocaine in

violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). Turrentine appeals the district

court’s denial of his motion to suppress all evidence obtained following a traffic

stop. We affirm.

I.    BACKGROUND

      This case centers around a traffic stop near the mainline toll plaza in


      *
        This order and judgment is not binding precedent, except under the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.
Lincoln County, Oklahoma. Oklahoma Highway Patrol Officers Clint Painter and

Ty Owen were parked between the toll lanes in separate vehicles. Trooper

Painter was driving a Dodge Charger, and Trooper Owen was parked to his right

in a Chevrolet Tahoe. The vehicles were side-by-side, facing southwest. At

approximately 6:50 a.m., Trooper Painter observed a silver SUV driven by Julius

Lee Turrentine fail to signal as it exited the east-bound lanes on the Turner

Turnpike onto the mainline toll plaza, in violation of Oklahoma state law. See

Okla. Stat. tit. 47, § 11-309(2). Trooper Painter activated his patrol car’s

emergency lights 1 and stopped Turrentine on the east side of the toll plaza.

      Jimmie Johnson, who had rented the SUV, was sitting in the front

passenger seat of the SUV that Turrentine was driving. Trooper Painter observed

Johnson raise up, turn around to look at him, lie back down in the passenger seat,

and then pretend to be asleep. Trooper Painter approached the SUV’s passenger

side and told Turrentine that he had failed to signal when exiting the turnpike.

Turrentine denied that he had failed to signal. Trooper Painter then told

Turrentine that he would only receive a warning and directed Turrentine to sit in

his patrol car while he prepared the warning.

      1
        When Trooper Painter activated the emergency lights, a video camera in
his car automatically began recording the area directly in front of the patrol car
and the patrol car’s cabin area. The video camera also recorded video-only
footage a minute before and a minute after the emergency lights were activated.
This video footage was submitted at the suppression hearing and is part of the
record on appeal. In the video-only footage shot before Trooper Painter activated
his emergency lights, Trooper Painter is seen smiling and laughing.

                                          2
      While Trooper Painter and Turrentine sat in the patrol car, Trooper Painter

checked Turrentine’s driver’s license and asked Turrentine about the two men’s

travels. Turrentine stated that he and Johnson left for Las Vegas on the previous

Saturday, arrived in Las Vegas on Sunday or Monday, went straight to the casino

where they gambled for a couple of days, and then started driving home to St.

Louis. After further questioning, Turrentine stated that the two men had gambled

“all over” in Vegas for forty-eight hours straight, despite not having brought

much money nor having won any money while gambling. He also stated that they

slept in the SUV in a Hampton Inn parking lot.

      Trooper Painter walked back to the SUV to request the rental agreement

from Johnson, who was still pretending to be asleep. Trooper Painter asked

Johnson about the two men’s travels. Johnson said that they had been visiting

Turrentine’s people in Oklahoma City for a “couple days.” Trooper Video at

10:12 to 10:20. Trooper Painter asked if the two men had been anywhere else.

Johnson stated that they had not.

      Trooper Painter returned to his patrol car and asked Turrentine whether the

two men had stayed anywhere else besides Las Vegas. Turrentine responded that

they had not. After handing Turrentine the warning citation, Trooper Painter said

the stop was complete. As Turrentine was about to leave, however, Trooper

Painter asked Turrentine if he would answer a few more questions. Turrentine

said he would not. Trooper Painter then told Turrentine that he and Johnson were

                                         3
being detained because of the discrepancies in their stories and their unusual

nervousness. Trooper Painter then contacted Trooper Owen, who had a trained

narcotics dog. Within minutes, Trooper Owen arrived with the trained narcotics

dog. The dog alerted, and the resulting search revealed nearly eleven kilograms

of powder cocaine hidden inside the SUV.

      Turrentine filed a motion to suppress all evidence from the traffic stop. At

the suppression hearing, the district court reviewed video footage from Trooper

Painter’s patrol car and heard testimony from Trooper Painter, Trooper Owen,

George Rawlins, and Brett Weber. George Rawlings, an investigator with the

federal public defender’s office, testified that it would have been difficult, if not

impossible, for Trooper Painter to have seen Turrentine’s traffic violation because

Trooper Painter’s view was obstructed by Trooper Owen’s patrol car. In

response, Trooper Painter testified that he in fact had seen the traffic violation.

Trooper Painter also testified that he thought the two men were engaged in

criminal activity for several reasons, including the fact that Johnson pretended to

be asleep when Trooper Painter first stopped the SUV, both men appeared to be

nervous, their respective descriptions of their prior travels were inconsistent, and

Turrentine failed to make eye contact when speaking to Trooper Painter.

      The district court issued a written order denying Turrentine’s motion to

suppress. A jury convicted Turrentine of conspiracy to possess with intent to

distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 and

                                           4
841 (b)(1)(A). Because Turrentine had a prior felony drug conviction, the district

court sentenced him to the mandatory minimum of 20 years’ imprisonment.

II.   DISCUSSION

      Turrentine argues that the district court erred by denying his motion to

suppress because Officer Painter could not have observed the traffic violation,

there was no reasonable suspicion for detaining him, and the dog alert was

insufficient to justify a warrantless search of the vehicle. At oral argument,

counsel for Turrentine withdrew the dog alert issue, noting the Supreme Court’s

recent decision in Florida v. Harris, 133 S.Ct. 1050 (2013) (a dog alert provides a

police officer with probable cause to conduct a search when “all the facts

surrounding a dog’s alert, viewed through the lens of common sense, would make

a reasonably prudent person think that a search would reveal contraband or

evidence of a crime”).

      In reviewing the denial of a motion to suppress, “we view the evidence in

the light most favorable to the government, accept the district court’s findings of

fact unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment.” United States v. Polly, 630 F.3d

991, 996 (10th Cir. 2011) (quotation omitted).

      A.     Legal Framework

      The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

                                          5
seizures.” U.S. Const. amend. IV. A seizure occurs when “a reasonable person

would not feel free to leave or disregard the contact.” Lundstrom v. Romano, 616

F.3d 1108, 1119 (10th Cir. 2010) (citing Petersen v. Farnsworth, 371 F.3d 1219,

1221-22 (10th Cir. 2004)). To determine whether a seizure is constitutional, we

balance “the nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the importance of the governmental interests alleged

to justify the intrusion,” Weigel v. Broad, 544 F.3d 1143, 1162 (10th Cir. 2008)

(quoting Scott v. Harris, 550 U.S. 372, 383 (2007)). The reasonableness of the

police officer’s actions is evaluated from the perspective of a reasonable officer at

the scene. Lundstrom, 616 F.3d at 1120.

      Although a traffic stop is a Fourth Amendment seizure, it ordinarily is

analyzed as an investigative detention under Terry v. Ohio, 392 U.S. 1 (1968).

United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995) (en banc).

Terry requires we examine whether the stop was: (1) “justified at its inception,”

and (2) “reasonably related in scope to the circumstances which justified the

interference in the first place.” Id. at 20. Throughout this analysis, we are guided

by the “touchstone” of reasonableness. Florida v. Jimeno, 500 U.S. 248, 250

(1991). If the stop fails the two-pronged Terry test, the stop becomes an arrest

that must be supported by probable cause. Lundstrom, 616 F.3d at 1120 (citing

United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1227 (10th Cir. 2008)).

“[A] traffic stop is valid under the Fourth Amendment if the stop is based on an

                                          6
observed traffic violation or if the police officer has reasonable articulable

suspicion that a traffic or equipment violation has occurred or is occurring.”

Botero-Ospina, 71 F.3d at 787.

      B.     Initial Stop

      Turrentine first contests the legality of the traffic stop. He argues that the

district court erred in denying his motion to suppress because “[t]he facts elicited

at the suppression hearing show by clear and convincing evidence that Trooper

Painter was not in a position to see whether Mr. Turrentine failed to signal his

exit off of the turnpike onto the toll plaza because his view was obstructed by

Trooper Owen’s vehicle.” Aplt. Br. at 13. Turrentine also contends that the stop

was racially motivated. Id. at 11.

      The district court’s ruling that Trooper Painter could see Turrentine’s

failure to signal is a factual finding that is reversible only if the district court

committed clear error. See United States v. Madrid, 713 F.3d 1251, 1255 (10th

Cir. 2013). When reviewing the district court’s factual findings, we view

evidence in the light most favorable to the government. Id. Under the clearly

erroneous standard, we “‘will reverse the district court’s finding only if it is

without factual support in the record or if, after reviewing all the evidence, we are

left with a definite and firm conviction that a mistake has been made.’” Id. at

1256-57 (quoting Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1274

(10th Cir. 2001)).

                                            7
      Turrentine’s challenge to the district court’s factual finding does not

overcome this high bar. Certainly, he provided some evidence indicating Trooper

Painter’s view was obstructed and that, as a result, he could not have observed the

traffic violation. In his analysis, Rawlings employed the height of Trooper

Painter and Trooper Owen’s patrol cars, the location of the two vehicles, and

Painter’s behavior in the video to determine whether it was physically possible

for him to see past Trooper Owen’s vehicle. However, this analysis was based on

the video, not first-hand knowledge, and used several assumptions about the

positioning of the officers and their vehicles. Rawlings acknowledged that

Trooper Painter could have seen the toll exit “if he was pulled far enough ahead.”

R., Vol. 3 at 339-40. This evidence was countered by Trooper Painter’s

testimony. Trooper Painter testified at the suppression hearing that he directly

observed Turrentine commit a traffic violation. The district court found Trooper

Painter’s testimony generally credible and discounted the value of Rawlings’

testimony. As the district court noted, although Rawlings’ testimony may have

raised a “reasonable doubt,” the applicable standard was “whether the government

has established by a preponderance of the evidence that the violation occurred,

hence justifying the trooper’s action.” R., Vol. 1 at 133 (emphasis added). On

the record presented, it was not clear error for the district court to accept Trooper

Painter’s testimony over the contrary evidence presented by Rawlings.

      Turrentine also argued that Trooper Painter’s stop was racially motivated,

                                           8
but he did not develop this theory or provide any case law to support his claim. 2

When a party does not cite a single case to support its position, “we are free to

end our inquiry by applying the principle that arguments inadequately briefed in

the opening brief are waived.” United States v. Pursley, 577 F.3d 1204, 1228

(10th Cir. 2009) (quotation omitted).

      We conclude that the district court did not err in finding that Trooper

Painter observed Turrentine commit a traffic violation, which justified the traffic

stop from its inception.

      C.     Subsequent Detention

      Turrentine also argues that the troopers exceeded the scope of the traffic

stop because “there was not reasonable suspicion to believe there was criminal

activity afoot and Mr. Turrentine should have been allowed to go on his way after

Trooper Painter gave him the warning.” Aplt. Br. at 16-17.

      A lawful traffic stop must be “reasonably related in scope to the

circumstances which justified the interference in the first place.” Terry, 392 U.S.

at 20. Under this standard, the detention “usually must ‘last no longer than is


      2
        At the suppression hearing, Turrentine introduced evidence that out of 254
unsafe lane change warnings that Trooper Painter issued from July 2011 through
November 2011, 79 of the warnings were issued to persons with Hispanic or
Asian names. Turrentine had made an ex parte request for a subpoena duces
tecum to the Department of Public Safety for copies of citations or warnings
issued by Trooper Painter to determine the racial make-up of the people to whom
he gave warnings. The district court denied Turrentine’s request. Turrentine
does not appeal this denial.

                                          9
necessary to effectuate the purpose of the stop,’ and ‘the scope of the detention

must be carefully tailored to its underlying justification.’” United States v.

Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998) (alteration omitted) (quoting

Florida v. Royer, 460 U.S. 491, 500 (1983)). “A seizure that is justified solely by

the interest in issuing a warning ticket to the driver can become unlawful if it is

prolonged beyond the time reasonably required to complete that mission.”

Illinois v. Caballes, 543 U.S. 405, 407 (2005). However, a “traffic stop may be

expanded beyond its original purpose if during the initial stop the detaining

officer acquires reasonable suspicion of criminal activity, that is to say the officer

must acquire a particularized and objective basis for suspecting the particular

person stopped of criminal activity.” United States v. Kitchell, 653 F.3d 1206,

1217-18 (10th Cir. 2011) (quotations omitted).

      Trooper Painter explained that he believed criminal activity was afoot

because of Turrentine and Johnson’s displayed nervousness and their very

different descriptions of their travels. Trooper Painter also noted that both

Turrentine and Johnson displayed visible signs of nervousness including heavy

breathing. Trooper Painter also thought it was suspicious that Johnson pretended

to be asleep when Trooper Painter first approached the SUV and again when

Trooper Painter approached him to ask for the rental agreement. In addition,

Trooper Painter noted that Turrentine failed to make eye contact with him while

the two were talking.

                                          10
      Turrentine argues that Trooper Painter’s observations do not support an

inference of criminal activity. Turrentine points out that both men are overweight

and out of shape, so it would not be unusual for them to be breathing heavily.

Turrentine contends that it is not suspicious for a car passenger to be asleep so

early in the morning. Turrentine refuted the eye contact allegation at the

suppression hearing with testimony from Brett Weber, an information technology

employee at the federal public defender’s office. Weber testified that based on

stills of the video shot from Trooper Painter’s patrol car, Turrentine looked at

Trooper Painter a total of twelve times without Trooper Painter looking back,

Trooper Painter looked at Turrentine a total of eight times without Turrentine

looking back, and both men made eye contact eleven times during the

conversation.

      The district court found that Trooper Painter had a reasonable basis to

extend the detention based on the “clearly contradictory” travel stories and

“Johnson’s efforts to feign sleep.” R., Vol. 1 at 134. The district court did not

rely on the alleged visible signs of nervousness and lack of eye contact.

Accordingly, we need not consider Turrentine’s arguments relating to those

issues. The district court’s findings are not clearly erroneous. “We have

repeatedly stated that ‘as part of a legitimate traffic stop’ an officer may ask a

motorist about his or her travel plans.” Kitchell, 653 F.3d at 1219 (quoting

United States v. Santos, 403 F.3d 1120, 1132 n.6 (10th Cir. 2005)). Further,

                                          11
“[t]he motorist’s or his passengers’ inconsistent statements in response to such

questions can give rise to reasonable suspicion of criminal activity.” Id. At the

suppression hearing, Trooper Painter testified that he suspected potential criminal

activity because he believed the two men “were being very evasive” and provided

“[t]otally different stories.” R., Vol. 3 at 285. When Trooper Painter asked

Turrentine where the two men were coming from, Turrentine stated that they were

driving back from Las Vegas. When asked the same question, Johnson stated that

they had come from Oklahoma City and that they had not gone anywhere else.

Turrentine then denied having visited anywhere but Las Vegas. Despite

Turrentine’s argument to us to the contrary, these two stories are clearly

inconsistent. The district court did not err in finding that Trooper Painter had

reasonable suspicion to further detain Turrentine, which renders the subsequently

obtained evidence admissible.

      AFFIRMED.

                                              Entered for the Court



                                              Mary Beck Briscoe
                                              Chief Judge




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