                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 07-1842
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri.
Brady Ray Long,                        *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: March 12, 2008
                                Filed: July 15, 2008 (corrected 7/23/08)
                                 ___________

Before WOLLMAN, HANSEN, and MELLOY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

      Brady Ray Long pleaded guilty to possession with intent to distribute
methamphetamine and conspiracy to distribute methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), 846 and was sentenced to 246 months of imprisonment. He
appeals the district court’s1 decision to deny his motion to suppress evidence, as




      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
recommended by the magistrate judge2 to whom the matter was referred. He also
appeals his sentence, challenging the district court’s drug quantity determination.

                                   I. Background

       Long and Peggy Albers were associates in selling methamphetamine. They
bought approximately eight to ten ounces of methamphetamine twice a week during
July and August of 2004. On September 2, 2004, Long was taken into custody for
having violated the terms of his supervised release on an earlier federal narcotics
violation conviction. During Long’s September-October incarceration, Albers sold
approximately 100 ounces of methamphetamine to their customers. Long’s
supervised release was revoked on October 22, 2004, and he was given a one-week
release pending his self-surrender on October 29 to begin his new term of
imprisonment.

      Long and Albers planned to make a sale to a reseller, Vickie Munroe, the
transaction to occur on the night of October 27, 2004. Earlier that day, Long and
Albers met at People Brokers, a business that Long co-owned, where they packaged
their methamphetamine. When Munroe arrived that night, Long and Albers
discovered that they had left the methamphetamine at People Brokers, so Long took
Albers’s car to recover the drugs.

      Lake Ozark police officer Dale Heiser was patrolling at about midnight that
night near People Brokers, which law enforcement believed was a frequent site of
large methamphetamine sales. Heiser noticed a vehicle headed in the direction of
People Brokers, so he pulled over and waited. About five minutes later, Heiser saw
the same vehicle returning. Finding this to be suspicious activity in that area at that


      2
      The Honorable William A. Knox, United States Magistrate Judge for the
Western District of Missouri.

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time of night, Heiser followed the vehicle, which turned out to be driven by Long, and
observed it cross the center yellow line, following which it slowly veered back to the
white fog line on the right side of the road, leading Heiser to believe that the driver
may have been intoxicated. Shortly thereafter, Long turned on his left blinker at a
point at which no exit existed and then turned the blinker off, whereupon Heiser
pulled the vehicle over to check on the driver’s sobriety. Heiser asked Long if he had
been drinking, took Long’s license and insurance card, and asked Long to step out of
the car for a sobriety test, which Long completed successfully. Long’s hands were
shaking and he was perspiring, and he appeared to be noticeably more nervous than
the normal person that Heiser pulled over. Heiser then asked Long for consent to
search the vehicle. Long responded that it was not his vehicle. Heiser informed Long
that his control over the vehicle authorized him to consent to a search and again asked
for consent, which Long then granted. As a part of his officer-safety pat-down
procedure, Heiser asked whether Long had anything in his pockets. Long
immediately stuck his hand in his pocket, prompting Heiser to order him to withdraw
it. As Long did so, a small piece of paper fell to the ground. Having seen drugs
stored in many types of innocuous items like paper, Heiser examined the piece of
paper and discovered a small amount of what appeared to him to be
methamphetamine, whereupon he placed Long under arrest for possession. The
subsequent search of Long’s vehicle revealed a cooler containing fifteen bags of
methamphetamine and several thousand dollars that he and Albers intended to use to
purchase another ten ounces from their regular supplier.

                          II. Constitutionality of the Stop

       “When reviewing a district court’s denial of a motion to suppress, we examine
the findings of fact for clear error and review de novo whether the investigatory stop
and search violated the Fourth Amendment.” United States v. Gilliam, No. 07-2645,
slip op. at 3, 2008 WL 861369, at *2 (8th Cir. April 2, 2008) (internal quotation
omitted).

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       Long argues that the initial traffic stop was illegal because Heiser lacked
reasonable suspicion that Long was involved in illegal activity. Police may “briefly
stop a moving automobile to investigate a reasonable suspicion that its occupants are
involved in criminal activity.” United States v. Winters, 491 F.3d 918, 921 (8th Cir.
2007) (internal quotation omitted). Reasonable suspicion must be based on “specific
and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant the investigative stop.” Id. (internal quotation omitted).
Reasonable suspicion requires more than a general hunch, but only that “police
articulate some minimal, objective justification for an investigatory stop.” United
States v. Fuse, 391 F.3d 924, 929 (8th Cir. 2004). The standard is less difficult to
meet than the probable cause standard required for arrests. United States v. Spotts,
275 F.3d 714, 718 (8th Cir. 2002). Because Long’s erratic driving gave Heiser
reasonable suspicion that Long was impaired, the district court did not err in finding
that the initial stop was justified.

        In addition to the evidence of Long’s possible intoxication, Heiser’s observation
of Long’s traffic violation gave him probable cause to stop the vehicle. United States
v. Chatman, 119 F.3d 1335, 1339-40 (8th Cir. 1997); see Pennsylvania v. Mimms, 434
U.S. 106, 109 (1977). “[T]he stop is valid even if the police would have ignored the
traffic violation but for their suspicion that greater crimes are afoot.” Chatman, 119
F.3d at 1340 (internal quotation omitted). Whether a traffic stop is appropriate is not
affected by an officer’s subjective motivations. Id. Crossing the yellow center line
constitutes a violation that allows an officer to stop the motorist and issue a citation.
See Mo. Rev. Stat. § 304.015.2.

       Long next argues that even if the initial stop was valid, it was unconstitutionally
extended because Heiser asked for consent to search the car after finding no evidence
of intoxication or other impairment. Generally, a stop should last no longer than is
necessary to confirm or dispel the officer’s suspicions. United States v. Jones, 269
F.3d 919, 924 (8th Cir. 2001). Whether the length of a detention is reasonable is

                                           -4-
determined on the facts of each case. United States v. Olivera-Mendez, 484 F.3d 505,
509-10 (8th Cir. 2008). A stop may be extended for a length of time sufficient to
enable the apprehending officer to ask the driver to step out of the vehicle or wait in
the patrol car, to ask about the motorist’s destination and purpose, to check the
validity of the driver’s license and registration, and to check the driver’s criminal
history for outstanding warrants. Jones, 269 F.3d at 924. Asking an off-topic
question, such as whether a driver is carrying illegal drugs, during an otherwise lawful
traffic stop does not violate the Fourth Amendment. Olivera-Mendez, 484 F.3d at
510. Asking for consent to search does not violate the Fourth Amendment in the
absence of coercive or otherwise unusual circumstances. United States v. Yang, 345
F.3d 650, 654 (8th Cir. 2008). At the time Heiser asked for consent, he had neither
run a check on Long’s license nor written any citation for the center line violation, so
the legitimate purposes for the stop had not yet ceased. Because no coercive or
otherwise unusual circumstances were present, and because Heiser’s request for
consent to search was made during a reasonable period of detention, no Fourth
Amendment violation occurred.

     Our holding that Long was not unconstitutionally detained disposes of his
argument that his detention rendered his consent to search involuntary.

                                   III. Sentencing

      The district court adopted the quantity determinations set forth in the
presentence report, which resulted in Long’s base offense level being set at level 38.
Long argues that an inconsistency in the presentence report made it impossible for the
government to have met its burden of proof regarding the amount of drugs for which
Long was responsible.

     The inconsistency that Long notes concerns the amount of actual (pure)
methamphetamine for which Long was sentenced. The district court did not address

                                          -5-
this issue because Long did not raise it expressly at the sentencing hearing or in his
objections to the presentence report. His objections at that time were to the quantity
of drugs attributable to him apart from the drugs found in the car, which would
include the amount estimated from his admissions to investigators about the July and
August sales, the drugs Albers sold while he was incarcerated during September and
October, and the ten ounces that he and Albers were planning to buy with the cash
seized. The lab report that was submitted as evidence at the sentencing hearing
analyzed the drugs found in the car, the quantity of which Long did not object to. An
argument raised for the first time on appeal is reviewed for plain error only. United
States v. Willis, 433 F.3d 634, 637 (8th Cir. 2006). We find no such error here, for
Long’s contention regarding the alleged inconsistency depends upon his post-
sentencing extrapolation of drug purity percentages, hardly the type of error that can
fairly be characterized as plain.

       Even if reviewed under the standard applied to preserved claims of error,
Long’s now-raised claim fails. The government must prove by a preponderance of the
evidence the amount of drugs for which a defendant is to be punished. United States
v. Minnis, 489 F.3d 325, 329 (8th Cir. 2007). “The government may prove the total
quantity of actual methamphetamine in a series of transactions by testing the purity
of a seized quantity and applying the percentage of actual methamphetamine in the
tested quantity to the unrecovered quantities.” United States v. Houston, 338 F.3d
876, 879 (8th Cir. 2003). Long does not take issue with the lab report; he asserts only
that the presentence report was internally inconsistent. The lab report stated that the
methamphetamine found in the car with Long was 44% actual methamphetamine. The
total amount of drugs for which Long was found to be responsible was 140 ounces,
or 3.97 kilograms, of methamphetamine. This amount was based on Long’s
admissions of how much methamphetamine he had bought during July and August of
2004 and did not include the drugs found in the car with him the night he was arrested
or the drugs distributed by Albers while Long was imprisoned. Based on these two
numbers, Long was responsible for approximately 1.75 kilograms of actual

                                         -6-
methamphetamine. The base offense level for crimes involving 1.5 kilograms or more
of actual methamphetamine is 38. See United States Sentencing Commission,
Guidelines Manual, § 2D1.1(1). Accordingly, we find no error in the district court’s
drug quantity determination and perforce no error in its offense level calculation.

      The judgment is affirmed.
                      ______________________________




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