     Case: 12-50504      Document: 00512547655         Page: 1    Date Filed: 02/28/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 12-50504
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 28, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellee

v.

KELVIN DE-MON NUNN, also known as Kelvin Demon Nunn,

                                                 Defendant - Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 6:11-CR-197-1


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       Kelvin De-Mon Nunn was convicted, following a bench trial based on
stipulated evidence, for possession of, with intent to distribute, crack cocaine,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2. He was
sentenced, inter alia, to 60 months’ imprisonment.
       The sole issue on appeal is whether the district court erred in denying
Nunn’s motion to suppress crack cocaine seized during, as Nunn concedes, a


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 12-50504

lawful traffic stop for speeding. Nunn contends the stop was longer than
necessary to effectuate its purpose, i.e., the issuance of a speeding ticket, and,
therefore, violated his Fourth Amendment right to be free from unreasonable
seizure. United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (“The
stopping of a vehicle and detention of its occupants constitutes a ‘seizure’ under
the Fourth Amendment.”).
      When reviewing the denial of a motion to suppress evidence, review of
the constitutionality of law enforcement action is de novo; factual findings, for
clear error. E.g., United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010). The
legality of a traffic stop is examined under the two-pronged analysis described
in Terry v. Ohio, 392 U.S. 1 (1968). Pack, 612 F.3d at 349-50. First, we
determine whether the initial traffic stop was justified. Id. at 350. Second, we
examine whether “the officer’s subsequent actions were reasonably related in
scope to the circumstances that caused him to stop the vehicle”. Id. (citing
Brigham, 382 F.3d at 506).
      Here, as noted supra, only the second prong of Terry is at issue. “An
officer’s subsequent actions are not reasonably related in scope to the
circumstances that caused him to stop the vehicle if he detains its occupants
beyond the time needed to investigate the circumstances that caused the stop,
unless he develops reasonable suspicion of additional criminal activity in the
meantime.” Id. (citing Brigham, 382 F.3d at 507).
      The detaining officer testified that, when he initially approached Nunn’s
vehicle, he thought he smelled the odor of marijuana. Thus, he developed a
reasonable suspicion that there may have been additional criminal activity
afoot, “based on more than an unparticularized suspicion or hunch”. United
States v. Jones, 234 F.3d 234, 241 (5th Cir. 2000). The officer detained Nunn
based on this articulable suspicion “for a reasonable time while appropriately



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                              No. 12-50504

attempting to dispel this reasonable suspicion”. Pack, 612 F.3d at 350.
Accordingly, the district court did not err in denying Nunn’s suppression
motion.
     AFFIRMED.




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