     Case: 14-50974      Document: 00513161618         Page: 1    Date Filed: 08/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                            United States Court of Appeals
                                                                                     Fifth Circuit


                                      No. 14-50974
                                                                                   FILED
                                                                             August 19, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

                                                 Plaintiff-Appellee

v.

RODNEY D. DAVIS,

                                                 Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:13-CR-229


Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge: *
       Rodney Davis appeals the district court’s denial of his motion to suppress
evidence found in his car following a stop for a traffic violation. We AFFIRM.
                  FACTS AND PROCEDURAL BACKGROUND
       In August 2013, Joel Smith, a trooper with the Texas Department of
Public Safety (“DPS”), stopped Davis for speeding on Interstate 45. When



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50974

Smith approached Davis’s car, he spotted a large pit bull in the back seat
barking and lunging at the window. Because of the dog, Smith asked Davis to
step out of the car. While exiting the vehicle, Davis warned Smith that the dog
was not friendly. Davis handed Smith his driver’s license but was unable to
offer proof of car insurance. Because of the heat and road noise, Smith had
Davis sit in the front passenger seat of his police car.
      Once inside the car, Smith began a computer check of Davis’s driver’s
license and the vehicle’s license plate, both of which were issued in Ohio. While
running the check, he questioned Davis about his trip. Davis said he was
traveling to Dallas to visit his uncle and then planned to return to Houston,
where he was signed to a record label as a rapper. Smith was suspicious of the
“turnaround trip” because of the dog’s presence and what he called the “lived
in look” of Davis’s vehicle. He also observed that Davis sweated, stuttered,
evaded eye contact, and appeared “abnormally nervous.” Although it was a hot
day, Smith noted that Davis continued to sweat while sitting in the air-
conditioned patrol car. While in the car, Davis again mentioned that the dog
was not friendly. The frequent comments about the dog’s dangerousness gave
Smith the impression that Davis did not want him to go near the car. Smith
had learned in interdiction classes that large dogs are sometimes used to deter
searches while transporting narcotics.
      After informing Davis that he was going to issue him a warning for
speeding, Smith noticed Davis’s prior drug charges displayed on the computer.
When he asked Davis about his criminal history, Davis made what Smith
perceived to be conflicting statements before stating that he did not want to
talk about his history. Smith later said that based on the fact that Davis’s
vehicle was registered to a third party, his nervousness, the pit bull in his car,
his criminal history, his “implausible travel plans,” and I-45’s reputation as a

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                                    No. 14-50974

“known drug corridor,” Smith asked Davis whether there was anything illegal
in his vehicle. Davis said there was not. At this point, 14 minutes after the
stop, Smith requested permission to search Davis’s vehicle. Davis refused.
Thereafter, Smith contacted the DPS canine unit in Madisonville. That unit
was unavailable, so he contacted a canine unit with the Madisonville Police
Department, which was located approximately 30 miles away.                   The
Madisonville unit arrived 30 minutes later and 51 minutes after the initial
stop. Upon arrival, the canine immediately alerted to Davis’s car. During a
search of the vehicle, officers recovered a handgun and cocaine.
      Davis was charged with possession with intent to distribute cocaine,
possession of a firearm during the commission of a drug-trafficking offense,
and possession of a firearm by a convicted felon. Prior to trial, Davis filed a
motion to suppress. At the suppression hearing, Smith recounted the stop and
subsequent search. Davis also testified. He claimed the car belonged to his
sister, and that he traveled with his dog because it was sick and he had no one
to take care of it. He denied stuttering, evading eye contact, or sweating during
the stop, but agreed that he had not wanted to discuss his criminal history. He
testified that he did not consent to the search of his car because he did not
believe Smith possessed reasonable suspicion.
      The court denied the motion. It determined that Smith’s questioning of
Davis during the registration and license check was proper, and that the
questioning and circumstances gave rise to a reasonable suspicion that Davis
was involved in criminal activity. The court also determined that the 30-
minute delay in the canine unit’s arrival was reasonable under the
circumstances. As a result, the court held that the search did not violate the
Fourth Amendment.


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      Following a bench trial, Davis was convicted of all three charges. He
timely appealed the denial of his motion to suppress.
                                  DISCUSSION
      When considering the denial of a motion to suppress, this court reviews
factual findings for clear error and the legality of police conduct de novo.
United States v. Pack, 612 F.3d 341, 347 (5th Cir.), opinion modified on denial
of reh’g, 622 F.3d 383 (5th Cir. 2010). “Factual findings are clearly erroneous
only if a review of the record leaves this [c]ourt with a definite and firm
conviction that a mistake has been committed.” United States v. Hearn, 563
F.3d 95, 101 (5th Cir. 2009) (citation and internal quotation marks omitted).
The clear error standard is particularly deferential when the “denial of a
suppression motion is based on live oral testimony . . . .” United States v. Gibbs,
421 F.3d 352, 357 (5th Cir. 2005) (citation and internal quotation marks
omitted). Additionally, we view the evidence in the light most favorable to the
prevailing party. Pack, 612 F.3d at 347.
      The legality of a traffic stop is examined under the two-pronged analysis
described in Terry v. Ohio, 392 U.S. 1 (1968). See United States v. Brigham,
382 F.3d 500, 506 (5th Cir. 2004) (en banc). First, the court examines whether
the stop was justified at its inception. Id. Second, it determines whether the
subsequent action was reasonably related to the circumstances that justified
the stop or to dispelling a reasonable suspicion that arose during the course of
the stop. Id. at 506-07. Reasonableness is determined in light of the totality
of the circumstances. See id. at 507.
      As part of a traffic stop, a police officer may request a defendant’s driver’s
license, insurance papers, and vehicle registration; run a computer check on
those documents; and issue a citation. United States v. Shabazz, 993 F.2d 431,
437 (5th Cir. 1993). The officer may ask the defendant about the purpose of

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                                      No. 14-50974

his trip, and may also ask about unrelated matters so long as the questioning
does not prolong the stop. Pack, 612 F.3d at 350. When the purpose of the stop
is resolved, “the detention must end unless there is additional reasonable
suspicion supported by articulable facts.” United States v. Gonzalez, 328 F.3d
755, 758 (5th Cir. 2003).
      Davis does not dispute the propriety of the stop or subsequent computer
check of his driver’s license and license plate. He contends, however, that the
detention became unconstitutional when Smith continued to detain and
question him after electing to issue a warning for the traffic violation. For
support he relies on this court’s decision in United States v. Valadez, 267 F.3d
395 (5th Cir. 2001). In that case, we held that an officer had no justification
for detaining a defendant pending the results of a computer check because he
had already determined that the defendant’s registration sticker had not
expired and that his window tinting was legal. See id. at 398. In doing so, we
distinguished previous cases in which we held that traffic violations, including
those for speeding, justified computer checks. See id. Because Davis was
stopped for speeding and concedes that Smith was justified in running a
computer check, Valadez is inapplicable.
      The relevant caselaw is that which helps us analyze whether Smith
possessed reasonable suspicion to justify his detainment of Davis after running
the computer check.         Factors such as nervousness, inconsistent stories,
criminal history, use of another’s vehicle, an out-of-state driver’s license and
license plates, and presence on a known drug-trafficking corridor may not
suffice to create reasonable suspicion of criminal activity. See United States v.
Cavitt, 550 F.3d 430, 434, 437-38, 438 n.5 (5th Cir. 2008); United States v.
Santiago, 310 F.3d 336, 338, 342 (5th Cir. 2002); United States v. Jones, 234
F.3d 234, 237-38, 241-42 (5th Cir. 2000). Instead, to constitute “articulable

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                                          No. 14-50974

facts that support a reasonable suspicion” of wrongdoing, such factors must be
coupled with “more concrete evidence that suggests the commission of a
specific offense.”     Cavitt, 550 F.3d at 437 (citation and quotation marks
omitted).
       We find guidance in our caselaw as to the sort of “concrete evidence” that
will establish reasonable suspicion. In several cases we upheld prolonged
detentions when officers utilized their experience and training to identify
evidence that a vehicle contained drugs, such as alterations to gas tanks or
tires. See United States v. Escareno Sanchez, 507 F.3d 877, 882 (5th Cir. 2007),
vacated on other grounds, 553 U.S. 1029 (2008); United States v. Estrada, 459
F.3d 627, 632 (5th Cir. 2006). We also have upheld extended detentions when
factors such as nervousness and presence on a known drug-trafficking corridor
were coupled with the fact that the defendant provided false or implausible
information regarding his travel plans. 1 See Pack, 612 F.3d at 352, 361; United
States v. Fishel, 467 F.3d 855, 856 (5th Cir. 2006); Brigham, 382 F.3d at 504,
508-09. Of course, such examples are necessarily illustrative rather than
exhaustive, as reasonable suspicion is fact-intensive and turns on the totality
of the circumstances. See Brigham, 382 F.3d at 507.
       In addition to Davis’s nervousness, criminal history, and presence on a
known drug-trafficking corridor, the government also emphasizes factors that
it contends make this case more similar to the cases in which this court has
upheld prolonged detentions.            Those factors include Davis’s inconsistent



       1In addition to these cases, the government discusses Rodriguez v. United States, 135
S. Ct. 1609 (2015). There, the Supreme Court held that a dog sniff conducted after the
issuance of a traffic citation prolonged the stop and did not fall within the de minimus rule.
See id. at 1616. The Court declined to address whether reasonable suspicion developed
during the stop would have justified prolonging the detention; it remanded for further
proceedings on this issue. See id. at 1616-17. Thus, Rodriguez is of limited relevance.
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                                    No. 14-50974

answers regarding his criminal history, his implausible travel plans, and the
circumstances surrounding the pit bull in his car.
      The first two factors likely do not suffice to establish reasonable
suspicion. Although Smith indicated that Davis made inconsistent statements
regarding his criminal history, he did not identify the statements, their
inconsistencies, or the reason they aroused his suspicions. In contrast, the
officers in Brigham and Pack identified specific inconsistencies, including
contradictions in the statements made by the driver and his passengers
regarding travel plans, conflicts in the driver’s own statements, and
fabrications about a passenger’s identity.     See Pack, 612 F.3d at 345-46;
Brigham, 382 F.3d at 504-05.
      The evidence of the implausibility of Davis’s travel plans is also minimal.
Smith said he doubted that Davis was traveling to Dallas to visit his uncle
because he had a dog with him and his car looked “lived in.” The district judge
expressed skepticism about this explanation. Later, while addressing the
prosecution, the judge noted that Smith “couldn’t explain why” the trip
appeared implausible. He also noted that a car’s “lived in” look “doesn’t mean
anything.” These observations comport with our precedent, which holds that
travel plans whose implausibility is merely trivial or illusory do not suffice to
justify an extended detention. See United States v. Jenson, 462 F.3d 399, 404-
05 (5th Cir. 2006).
      More compelling are the circumstances surrounding the pit bull in
Davis’s car. Smith knew from prior training that such dogs are often used to
deter car searches when transporting narcotics. Additionally, Davis warned
Smith twice that the dog was not friendly. During the second such instance he
was sitting in Smith’s patrol car, and Smith had not asked about the
temperament of the dog or indicated that he intended to approach Davis’s car.

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                                      No. 14-50974

Thus, when Davis abruptly reiterated the warning, Smith reasonably
suspected that Davis was attempting to deter him from recovering illegal
materials contained within the car.
      We recognize that dogs accompany many travelers, and that if those dogs
are unfriendly toward strangers, most owners would advise those approaching
their vehicles to be wary. But the additional, out-of-context warning issued by
Davis while sitting inside Smith’s patrol car sets this case apart from the
typical example.     Taking this interaction together with the other factors
enumerated by Smith, including Smith’s training regarding dogs and Davis’s
nervousness, criminal history, and presence on a known drug-trafficking
corridor, we hold that Smith possessed reasonable suspicion to prolong Davis’s
stop until the canine unit arrived.
      AFFIRMED.




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