                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                 November 20, 2007
                                 TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                     Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 06-8096
 v.                                               (D.C. No. 06-CR-39-WFD)
                                                        (D. Wyoming)
 TONY KA KAY MA,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before McCONNELL, SEYMOUR, and EBEL, Circuit Judges.


      Mr. Ma was charged with possession with intent to distribute less than 50

kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D).

After the district court denied his motion to suppress, he conditionally pled guilty

to the charge. He appeals and we affirm.

      In the early afternoon of December 7, 2005, Wyoming Highway Patrol

Trooper Jeremy Mrsny was parked in the median of Interstate 80 in Laramie


      *
         This order and judgment is not binding precedent, except under the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 F ED . R. A PP . P. 32.1 and 10 TH
C IR . R. 32.1.
County, Wyoming, facing west. Trooper Mrsny clocked Mr. Ma’s speed at 74

miles per hour, one mile per hour under the posted speed limit of 75. When Mr.

Ma spotted Trooper Mrsny, however, he quickly decelerated from 74 to 55 miles

per hour. Trooper Mrsny observed the vehicle drift right and over the fog line.

Having observed the lane violation, and feeling concerned that the driver might

be fatigued or intoxicated, Trooper Mrsny initiated a traffic stop. As he

approached Mr. Ma’s vehicle, he noticed a duffel bag and a jacket on the rear

seat. When Mr. Ma rolled down the front passenger window, the trooper smelled

a strong odor of dryer sheets or fabric softener coming from inside the vehicle.

He also observed food snacks, an energy drink, and a road-map in the front

passenger seat.

      Trooper Mrsny asked Mr. Ma for his license, registration, and proof of

insurance. As Mr. Ma was producing his license and a rental agreement for the

vehicle, Trooper Mrsny witnessed what he considered signs of extreme

nervousness: shaking hands and heavy breathing. Trooper Mrsny also noticed

that the rental agreement reflected that a third-party had rented the vehicle, and

that Mr. Ma was merely an authorized driver. Trooper Mrsny asked Mr. Ma to

accompany him back to the patrol car.

      When he got into the patrol car, Mr. Ma was shaking and breathing so

heavily that Trooper Mrsny asked him if he was okay. Mr. Ma responded he was

cold. Trooper Mrsny then wrote out a warning ticket for lane use violation and

                                         -2-
asked Mr. Ma about his travel plans. Mr. Ma said he was coming from San

Francisco and on his way to Minneapolis for a wedding. He explained he had

taken vacation time for the trip prompting Trooper Mrsny to inquire about his

occupation. Mr. Ma responded that he worked in retail, which Trooper Mrsny

found puzzling given that it was the Christmas season. He commented to Mr. Ma

he thought it was strange a job like that would give him vacation time at that time

of year. Mr. Ma responded, “I don’t know.” Trooper Mrsny gave Mr. Ma a

warning ticket, returned his license, and the rental agreement, and told him that

he was free to leave.

      Before Mr. Ma got back into his rental vehicle, Trooper Mrsny exited his

patrol car and asked permission to ask more questions. Mr. Ma agreed. Trooper

Mrsny explained that Mr. Ma did not have to answer his questions, and again

repeated his request. Again, Mr. Ma agreed. Trooper Mrsny re-questioned him

about his travel plans. This time, Mr. Ma replied that he was going to

Minneapolis to deliver Christmas presents to his family, but then quickly added

that he was also going to a wedding. When asked whether he had family in

Minneapolis, however, Mr. Ma responded that he did not. When asked about the

wedding, Mr. Ma said the couple getting married were “friends of a friend”and

that he only knew the groom as “Ryan.” When Trooper Mrsny asked Mr. Ma

whether he was carrying controlled substances, Mr. Ma responded that he was

not. He declined, however, to consent to a search of the vehicle. Based on what

                                        -3-
Trooper Mrsny had already observed, he believed that Mr. Ma was involved in

illegal drug activity, detained him, and requested a canine drug-detection unit.

      A second trooper, Jason Green, arrived with his drug-sniffing dog. The dog

alerted near the open passenger window and again at the trunk of the car. A

search of the vehicle revealed two duffle bags that contained over 70 pounds of

marijuana. Approximately forty-three minutes elapsed between the start of the

traffic stop and the discovery of the marijuana.

      Following a suppression hearing, the district court held: (1) Trooper Mrsny

had reasonable articulable suspicion that Mr. Ma had committed a traffic violation

sufficient to justify the initial stop, (2) Mr. Ma freely consented to the additional

questioning after he exited the patrol vehicle, and (3) the subsequent detention

and canine sniff of Mr. Ma’s vehicle was justified because Trooper Mrsny had

reasonable articulable suspicion that Mr. Ma was involved in drug trafficking.

The district court found that seven factors, when evaluated together, gave Trooper

Mrsny reasonable articulable suspicion: (1) Mr. Ma’s rapid deceleration upon

seeing Trooper Mrsny despite the fact that Mr. Ma was already driving below the

speed limit, (2) the smell of dryer sheets emanating from the car, (3) Mr. Ma’s

signs of extreme anxiety throughout the stop, (4) the fact that Mr. Ma was driving

a rental car rented by someone who was not in the vehicle at the time, (5) Mr.

Ma’s planned journey between a known source city for drugs to a known

destination city, (6) the fact that Mr. Ma indicated that he was going to a wedding

                                         -4-
but had no visible dress clothes in the passenger compartment of the car, and (7)

the presence of the atlas, energy drink, and fast food wrappers in the front seat of

the car.

      When reviewing a denial of a motion to suppress, we “accept the district

court’s factual findings unless clearly erroneous,” and view the evidence in the

light most favorable to the government. United States v. Elliott, 107 F.3d 810,

813 (10th Cir. 1997). We review de novo the ultimate determination of the

reasonableness of the search under the Fourth Amendment. Id. “The defendant

bears the burden of establishing a Fourth Amendment violation.” United States v.

Patterson, 472 F.3d 767, 775 (10th Cir. 2006).

      Because a routine traffic stop is more analogous to an investigative

detention than a custodial arrest, we “analyze such stops under the principles

developed for investigative detentions set forth in Terry v. Ohio, 392 U.S. 1

(1968).” U.S. v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). To determine

the reasonableness of an investigative detention, we make two inquiries: “whether

the officer’s action was justified at its inception and whether it was reasonably

related in scope to the circumstances which justified the interference in the first

place.” Terry, 392 U.S. at 20. Only the second prong of Terry is at issue here.

      Once Trooper Mrsny completed the warning and returned Mr. Ma’s license

and rental agreement, he could not extend the scope of the detention by asking

further questions unless he had either “objectively reasonable and articulable

                                         -5-
suspicion illegal activity [had] occurred or [was] occurring,” or consent from Mr.

Ma to ask additional questions. Hunnicutt, 135 F.3d at 1349; see also Patterson,

472 F.3d at 776. We agree with the district court’s conclusion that Trooper

Mrsny had consent from Mr. Ma to ask additional questions.

      After Trooper Mrsny gave Mr. Ma the warning and returned his documents,

he told him, “You are free to go.” Several moments later, as Mr. Ma was

returning to his vehicle, Trooper Mrsny approached him again, inquired if he

could ask more questions, and informed him that he did not have to answer. Mr.

Ma agreed to answer the additional questions. Nevertheless, he contends that

when the Trooper said “he was free to leave, he was only doing the ‘Wyoming

Highway Patrol two-step’ since the trooper was not going to let him go.” Aplt. Br.

at 4. The law is clear, however, that “[s]ubjective intentions play no role in

ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States,

517 U.S. 806, 813 (1996). Trooper Mrsny’s intentions are thus irrelevant. Mr.

Ma consented to the additional questions, and that is sufficient to establish

Trooper Mrsny did not violate the Fourth Amendment by asking them. See

Patterson, 472 F.3d at 776; Hunnicutt, 135 F.3d at 1349.

      When Trooper Mrsny detained Mr. Ma and requested a canine drug-

detection unit, however, the encounter was no longer consensual and the detention

had to be justified by “objectively reasonable and articulable suspicion illegal

activity [had] occurred or [was] occurring.” Hunnicutt, 135 F.3d at 1349; see also

                                         -6-
Patterson, 472 F.3d at 776. “We assess reasonable suspicion in light of the

totality of the circumstances.” United States v. Valles, 292 F.3d 678, 680 (10th

Cir. 2002). Reasonable suspicion must be based on a “minimal level of objective

justification which the officer[] can articulate.” United States v. Hall, 978 F.2d

616, 620 (10th Cir. 1992) (quotation marks omitted). It cannot arise from “an

inchoate and unparticularized suspicion or hunch.” Id. A factor may contribute

to reasonable suspicion even if it “is not by itself proof of any illegal conduct and

is quite consistent with innocent travel.” United States v. Sokolow, 490 U.S. 1, 9

(1989). Moreover, courts should “defer to the ability of a trained law

enforcement officer to distinguish between innocent and suspicious activities.”

United States v. Santos, 403 F.3d 1120, 1124 (10th Cir. 2005) (quotations

omitted).

      Among other factors, the district court found that Mr. Ma was exhibiting

signs of extreme nervousness, provided inconsistent answers about his travel

plans, and was driving a rental vehicle rented by a person who was not in the

vehicle. We have held that all of these factors may contribute to the formation of

an objectively reasonable suspicion of illegal activity, particularly when

considered together. See, e.g., United States v. Karam, 496 F.3d 1157, 1164-65

(10th Cir. 2007) (“confusion about details is often an indication that a story is

being fabricated on the spot, and vague and evasive answers may be considered,

in conjunction with other factors, as contributing to an officer’s determination of

                                          -7-
reasonable suspicion”) (quotations omitted); Santos, 403 F.3d at 1127, 1129

(unusual nervousness and implausible travel plans “may be considered as part of

the totality of the circumstances a reasonable law enforcement officer would

analyze in investigating possible crimes”); United States v. Williams, 271 F.3d

1262, 1270 (10th Cir. 2001) (officer “knew from his training and experience that

drug couriers often use third-party rental cars”); Hunnicutt, 135 F.3d at 1349 ([a]

“variety of factors may contribute to the formation of an objectively reasonable

suspicion of illegal activit[ies,]” including “having no proof of ownership of the

vehicle, having no proof of authority to operate the vehicle, and inconsistent

statements about destination”); United States v. McRae, 81 F.3d 1528, 1535 (10th

Cir. 1996) (“implausible or contradictory travel plans can contribute to a

reasonable suspicion of illegal activity”). The court also based its determination

of reasonable suspicion on Mr. Ma’s rapid deceleration upon seeing Trooper

Mrsny although he was already driving below the posted speed limit, the strong

odor of dryer sheets or fabric softener, and the fact that Mr. Ma was traveling

from a known source city to a known destination city. While some of these

factors may often arise through innocent activity, we cannot say they failed to add

weight to the district court’s reasonableness determination in light of the other

suspicious activities.

      On appeal, “[o]ur task . . . is not to pigeonhole each purported fact as either

consistent with innocent travel or manifestly suspicious, but rather to determine

                                         -8-
whether the totality of the circumstances justify the detention.” United States v.

Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997) (quotations and citations omitted).

In so doing, we must “remember[] that reasonable suspicion represents a

minimum level of objective justification which is considerably less than proof of

wrongdoing by a preponderance of the evidence.” Id. (quotations and citations

omitted). Under the totality of the circumstances, we conclude the district court

correctly determined there was sufficient reasonable suspicion to detain Mr. Ma

pending the arrival of the canine unit. 1 Consequently, the court properly denied

the motion to suppress.

      AFFIRMED.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




      1
        The actual length of time between the start of the traffic stop and the
discovery of the marijuana – approximately forty-three minutes – was also
reasonable. See United States v. Villa-Chaparro, 115 F.3d 797, 802-803 (10th
Cir. 1997) (holding forty-three minute time lapse reasonable in view of the
officer’s reasonable suspicion).

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