     Case: 14-40382      Document: 00513026299         Page: 1    Date Filed: 04/30/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit


                                      No. 14-40382                                  FILED
                                                                                April 30, 2015
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA                                                            Clerk

                                                 Plaintiff – Appellee
v.

JOHN KEVIN WALDRIP, also known as DVD Man,

                                                 Defendant – Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:13-CR-16


Before HIGGINBOTHAM, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Appellant John Waldrip appeals the denial of his motion to suppress
evidence obtained from his vehicle and residence after a traffic stop. He argues
that the investigating police officer unconstitutionally prolonged the stop to
deploy a drug detecting dog to sniff the outside of his vehicle. Once deployed,
the dog alerted, which indicated the possible presence of narcotics. A
subsequent search of the vehicle yielded a bag containing methamphetamine
along with a cache of counterfeit DVDs. Waldrip does not contest the legality


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40382
of the stop at its inception. Nor does he dispute that the officer had probable
cause to search his vehicle once the dog alerted. Waldrip’s specific claim is that
he was detained longer than necessary to effectuate the original purpose of the
stop. The district court held that the officer developed reasonable suspicion of
additional criminal activity within the scope of his initial investigation that
justified extending the stop to deploy the dog to dispel that suspicion. We
review the district court’s factual determinations for clear error and its
ultimate Fourth Amendment conclusions de novo. 1
       Under our controlling precedents, “a detention must be temporary and
last no longer than is necessary to effectuate the purpose of the stop, unless
further reasonable suspicion, supported by articulable facts, emerges.” 2 The
officer initiated the traffic stop after he observed Waldrip commit a moving
violation. We therefore must consider whether the officer developed reasonable
suspicion of additional criminal activity within the scope of his investigation of
the original moving violation. In similar cases we have judged reasonable
suspicion as of the time a final computer check of vehicle occupants’ licenses
was completed. 3 We apply the same benchmark here.
       A video camera and microphone mounted in the patrol car recorded the
entire stop, which spanned about eleven minutes and eight seconds from the
time Waldrip’s vehicle came to a complete stop until the dog alerted. The video
recording portrays a routine stop during which the officer pursued his



       1   United States v. Brigham, 382 F.3d 500, 506 n.2 (5th Cir. 2004) (en banc).
       2   Id. at 507 (citing United States v. Dortch, 199 F.3d 193, 200 (5th Cir. 1999), United
States v. Machuca-Barrera, 261 F.3d 425, 434 (5th Cir. 2001)).
        3 See, e.g., United States v. Pack, 612 F.3d 341, 361 (5th Cir. 2010), modified on reh’g,

622 F.3d 383 (5th Cir. 2010), (“[The] final computer check was completed at 9:10
a.m. . . . Therefore, in order for this detention to have been legal, we must conclude that the
facts [the officer] articulated as the basis for his suspicion that criminal activity was afoot
were observed by 9:10 a.m. and were sufficient to make his suspicion of criminal activity
reasonable.”).
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                                     No. 14-40382
investigation of the moving violation “in a diligent and reasonable manner.” 4
The video recording also demonstrates that the final computer check of
Waldrip’s female passenger’s license came back “clean” at 9:52:17 p.m., about
nine minutes and ten seconds into the stop. We conclude that prior to that
moment the officer ascertained sufficient facts to form a “particularized and
objective basis” for suspecting additional criminal activity under the “totality
of the circumstances.” 5 Relevant circumstances supporting the officer’s
reasonable suspicion include: (1) a tip from a fellow officer and an anonymous
phone call to the police about suspected drug activity at Waldrip’s residence;
(2) Waldrip’s nervousness during the stop; (3) Waldrip’s involuntary twitching
and jerking, along with scars and sores on his arms, face, and neck, all
consistent with symptoms of methamphetamine abuse; and (4) Waldrip’s story
that at 9:45 p.m. and while casually dressed he was embarking on a one-
hundred-twenty-mile journey from his home in Angleton, Texas, to drop off his
female passenger—who was not a coworker—in Conroe, Texas, before
ultimately heading to work at a restaurant in downtown Houston.
                                     *      *      *
       Finding no Fourth Amendment violation, we AFFIRM the district court’s
denial of the motion to suppress.




       4 United States v. Sharpe, 470 U.S. 675, 686 (1985).
       5 United States v. Arvizu, 534 U.S. 266, 273-74 (2002) (internal quotation marks and
citations omitted).
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