                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             AUG 14 2001
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 00-3393
                                                             (D. Kan.)
 JOHN D. ROBINSON,                                (D.Ct. No. 00-CR-40023-SAC)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and BRISCOE,
Circuit Judge.



      Defendant John D. Robinson entered a conditional guilty plea to possession

of over one hundred kilograms of marijuana with the intent to distribute, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2. Mr. Robinson’s

conditional plea reserved the right to appeal the district court’s denial of his

motion to suppress. The district court sentenced Mr. Robinson to sixty months




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
imprisonment, four years of supervised release, and a $100 assessment. On

appeal, Mr. Robinson challenges the district court’s denial of his motion to

suppress. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.



                                 BACKGROUND

      On March 9, 2000, Mr. Robinson drove his pickup truck, which had a

locked cover over the truck bed, eastbound on Interstate 70. Kansas Highway

Patrol Trooper Michael R. Weigel stopped Mr. Robinson for speeding. Trooper

Weigel’s patrol car was equipped with a video camera. He also wore a

microphone that recorded the audio. The audio-video equipment recorded the

stop and subsequent encounter between Trooper Weigel and Mr. Robinson. The

videotape admitted into evidence begins at 11:05 a.m. when Trooper Weigel’s

patrol car pulled behind Mr. Robinson’s pickup truck on the side of Interstate 70.



      Trooper Weigel approached Mr. Robinson in his truck and asked for Mr.

Robinson’s driver’s license and registration. Trooper Weigel explained to Mr.

Robinson he would issue a warning for the speeding violation, and asked Mr.

Robinson where he was coming from. Mr. Robinson responded he was coming

from a ski trip in Colorado. After engaging in a brief dialogue, Trooper Weigel

told Mr. Robinson he intended to run Mr. Robinson’s driver’s license check


                                        -2-
through police dispatch.



      Trooper Weigel returned to his patrol car, and waited for the results of the

driver’s license check. At approximately 11:12 a.m., Trooper Weigel informed

Mr. Robinson the driver’s license check would take a few more minutes because

the dispatcher’s computer system was not operating correctly, and asked Mr.

Robinson for proof of insurance. After examining Mr. Robinson’s proof of

insurance, Trooper Weigel returned to his patrol car.



      During the traffic stop, Trooper Weigel noticed Mr. Robinson made very

little eye contact, his hands were visibly shaking, he was “real fidgety,” and he

consistently wiped his palms on his pant legs. Trooper Weigel also observed

litter from fast food wrappers and a box of “Stay Awake” pills on the passenger

seat. Trooper Weigel’s suspicions were raised because, in his experience, he

knew drug traffickers use caffeine pills or other substances to stay awake, in

order to arrive at their destination more quickly. In addition, Mr. Robinson had

no visible skiing paraphernalia or clothing that would normally be expected of a

traveler returning from a ski vacation. Finally, Trooper Weigel testified the back

of Mr. Robinson’s pickup truck was “squatting low,” suggesting it contained a

“heavy load.”


                                         -3-
      At approximately 11:17 a.m., Trooper Weigel handed Mr. Robinson back

his driver’s license and documents, and issued him a warning ticket. Trooper

Weigel told Mr. Robinson, “That’s all I got,” and then immediately inquired,

“You don’t mind if I ask you a couple of questions do you?” Trooper Weigel

testified Mr. Robinson answered, “Yes.” Trooper Weigel then asked, “You don’t

have anything illegal in the back of the truck, can I take a look in the back?” Mr.

Robinson replied he had lost the key that unlocked the cover of his truck bed.

However, he assured Trooper Weigel the truck bed was “pretty much empty.”



      Trooper Weigel then inquired, “You don’t mind if I get a dog up here and

sniff around a little?” Mr. Robinson responded, “Sure.” As Trooper Weigel

walked back to his patrol car, he told Mr. Robinson to “hold tight.” Trooper

Weigel returned to his car and radioed for the canine unit. A second trooper,

Trooper Irock, arrived shortly thereafter and sat in Trooper Weigel’s patrol car.



      At approximately 11:23 a.m., Trooper Weigel told Mr. Robinson, who

remained seated in his pickup truck, the canine unit would arrive in a few

minutes. Trooper Weigel testified Mr. Robinson responded the additional delay

for the canine unit was “‘Okay,’ or words to that effect.” At 11:27 a.m., Trooper

Patrick arrived with his drug sniffing dog. Troopers Weigel and Patrick went up


                                         -4-
to Mr. Robinson’s pickup and asked Mr. Robinson whether there was anything

illegal in the back of the truck; Mr. Robinson denied the presence of anything

illegal. The drug sniffing dog then walked around the back of the truck and

alerted to the presence of controlled substances at the tailgate of Mr. Robinson’s

pickup truck. After the dog alerted, the troopers searched the cab of the pickup

for the missing key to the truck bed cover, but they were unable to find it.

Ultimately the troopers used a crowbar to pry the cover off. The troopers

observed a large steel box running the length and width of the truck bed, and then

placed Mr. Robinson under arrest. The steel box inside Mr. Robinson’s pickup

truck contained approximately 385 pounds of marijuana.



      Mr. Robinson was charged in a one count grand jury indictment with

violations of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2. Mr.

Robinson entered a conditional guilty plea and filed a motion to suppress the

evidence. The district court denied the motion, holding the traffic stop evolved

into a consensual encounter between Mr. Robinson and Trooper Weigel, and the

troopers’ search of the pickup truck did not violate the Fourth Amendment.

Specifically, the district court reasoned the detention ended when Trooper Weigel

returned Mr. Robinson’s license and documents and told Mr. Robinson that was

all Trooper Weigel had for him; thereafter, Mr. Robinson’s and Trooper Weigel’s


                                         -5-
encounter during the additional questioning was consensual. The district court

also concluded Mr. Robinson “consented to extend the length of [the] stop for a

canine to arrive and walk around the exterior of his pickup truck.” According to

the district court, once the dog alerted to the presence of controlled substances,

the troopers had probable cause to search the pickup truck.



      On appeal of a motion to suppress, we view the evidence in the light most

favorable to the prevailing party, in this instance the government. United States

v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999). “We review the district court’s

findings of historical fact for clear error and give due weight to inferences which

the district court draws from those findings.” Id.

      A finding is ‘clearly erroneous’ when although there is evidence to
      support it, the reviewing court on the entire evidence is left with the
      definite and firm conviction that a mistake has been committed....
      Where there are two permissible views of the evidence, the
      factfinder’s choice between them cannot be clearly erroneous.”

United States v. De la Cruz-Tapia, 162 F.3d 1275, 1277 (10th Cir. 1998)

(quotation marks, alteration, and citation omitted). “The credibility of witnesses

and the weight to be given the evidence is the province of the district court.”

Patten, 183 F.3d at 1193. The district court’s ultimate determination of

reasonableness under the Fourth Amendment is a question of law we review de

novo. De la Cruz-Tapia, 162 F.3d at 1277.


                                         -6-
                                    DISCUSSION

      Mr. Robinson does not challenge the basis or validity of the traffic stop.

He claims Trooper Weigel detained him without his consent by (1) continuing to

question him after returning his driver’s license and other documents, and (2)

requiring him to wait for the canine unit to arrive to “search” his truck. 1



      It is beyond dispute that during a routine traffic stop a law enforcement

officer “may request a driver’s license and vehicle registration, run a computer

check, and issue a citation.” United States v. McRae, 81 F.3d 1528, 1534 (10th

Cir. 1996) (quotation marks and citation omitted). Generally, once the driver

produces a valid license and registration, “he must be allowed to proceed on his

way, without being subject to further delay by police for additional questioning.”

Id. (quotation marks and citation omitted). An officer may, however, further

question the driver “if (1) during the course of the traffic stop the officer acquires

an objectively reasonable and articulable suspicion that the driver is engaged in

illegal activity; or (2) the driver voluntarily consents to the officer’s additional

questioning.” United States v. Elliott, 107 F.3d 810, 813 (10th Cir. 1997)


      1
         Mr. Robinson also alleges Trooper Weigel lacked reasonable and articulable
suspicion that Mr. Robinson was engaged in criminal activity. We need not address
whether Trooper Weigel possessed reasonable and articulable suspicion because we hold
Trooper Weigel’s and Mr. Robinson’s encounter was consensual.


                                          -7-
(quotation marks and citation omitted). The driver’s consent means the encounter

ceases to be seizure or detention, “and hence the Fourth Amendment’s strictures

are not implicated.” Id.



      In determining whether a consensual encounter or unlawful detention

transpired, we consider the totality of the circumstances. Id. at 814. “A traffic

stop may become a consensual encounter if the officer returns the license and

registration and asks questions without further constraining the driver by an

overbearing show of authority.” United States v. Hernandez, 93 F.3d 1493, 1498

(10th Cir. 1996). “A consensual encounter is the voluntary cooperation of a

private citizen in response to non-coercive questioning by a law enforcement

officer.” United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000) (emphasis

added and quotation marks and citation omitted). Whether an encounter is

consensual “depends on whether the police conduct would have conveyed to a

reasonable person that he or she was not free to decline the officer’s requests or

otherwise terminate the encounter.” Id. (quotation marks and citation omitted).

Although not an exhaustive list, certain factors indicating a “coercive show of

authority” may suggest an encounter is not consensual: “the presence of more

than one officer, the display of a weapon, physical touching by the officer, or his

use of a commanding tone of voice indicating that compliance might be


                                         -8-
compelled.” United States v. Turner, 928 F.2d 956, 959 (10th Cir.), cert. denied,

502 U.S. 881 (1991); see United States v. Sandoval, 29 F.3d 537, 540-41 (10th

Cir. 1994).



1. Consent to Officer’s Additional Questioning

      Mr. Robinson acknowledges Trooper Weigel issued the warning and

returned Mr. Robinson’s documents before asking further questions. Mr.

Robinson claims a reasonable person would not have felt free to leave after

Trooper Weigel said “That’s all I’ve got,” because Trooper Weigel (1) did not

step away from Mr. Robinson’s truck; (2) failed to inform Mr. Robinson he was

free to leave; (3) testified he did not know whether he would have allowed Mr.

Robinson to terminate the encounter and drive away if Mr. Robinson had tried;

and (4) immediately asked Mr. Robinson a series of follow-up questions without

waiting for Mr. Robinson’s response. According to Mr. Robinson, he did not

consent to Trooper Weigel’s inquiry whether he would mind if Trooper Weigel

asked him a few questions; instead, he responded to Trooper Weigel’s request to

look underneath the truck bed cover.



      The district court found Trooper Weigel returned Mr. Robinson’s

documents, told him that the purpose of the traffic stop was concluded, stepped


                                        -9-
away from the driver’s window, used a conversational tone of voice, and asked

and received permission before making further inquiries. The court also found

the encounter occurred during the day on a public highway, Trooper Weigel was

the only officer present during the inquiry, and Mr. Robinson could have driven

away from the scene, but instead voiced no objections and remained attentive and

responsive to Trooper Weigel’s questions.



      Despite Mr. Robinson’s contentions to the contrary, Trooper Weigel was

not required to step away from Mr. Robinson’s pickup truck or inform Mr.

Robinson he was free to leave, in order for their encounter to be deemed

consensual. See West, 219 F.3d at 1176-77 (recognizing the officer likely stood

close to the vehicle to avoid being hit by traffic on the interstate and holding

“[a]n officer is not required to inform a suspect ... that he was free to leave”).

Nevertheless, after viewing the videotape, we are not “left with the definite and

firm conviction” that the district court clearly erred in finding Trooper Weigel did

step away from Mr. Robinson’s window. De la Cruz-Tapia, 162 F.3d at 1277.

We also note it is evident from the record that Trooper Weigel did not in any way

block the path of Mr. Robinson’s vehicle. Trooper Weigel’s testimony that he did

not know whether or not he would have permitted Mr. Robinson to leave if Mr.

Robinson had tried to drive away is immaterial because this statement is merely


                                          -10-
an expression of his indefinite, subjective motivations in a hypothetical event.

See United States v. Anderson, 114 F.3d 1059, 1065 (10th Cir. 1997).



      While it is true Trooper Weigel promptly asked follow-up questions after

returning Mr. Robinson’s documents and telling him “[t]hat’s all I got,” there is

absolutely no evidence in the record suggesting Trooper Weigel’s tone of voice

when asking these relatively routine questions, or his subsequent conduct, was

aggressive or coercive. See West, 219 F.3d at 1177. Although Mr. Robinson

claims he never permitted Trooper Weigel to make further inquiries, the district

court found, based on Trooper Weigel’s testimony, that Mr. Robinson agreed to

allow additional questioning. See Patten, 183 F.3d at 1193 (recognizing witness

credibility and the weight accorded to evidence is within the district court’s

province). In any event, Mr. Robinson implicitly indicated his “voluntary

cooperation” with Trooper Weigel’s questioning when he responded he lost the

key to the truck bed cover. See West, 219 F.3d at 1176. Based on the entire

record and our standard of review, we simply cannot conclude the district court

clearly erred in finding Mr. Robinson consented to additional questioning.



      Accordingly, we hold Trooper Weigel asked Mr. Robinson additional

questions during a consensual encounter. In short, Mr. Robinson chose to listen


                                         -11-
to and answer Trooper Weigel’s questions without any objective reason to believe

he was not free to leave.



2. Consent to Extended Encounter to Wait for Canine Unit

      Mr. Robinson claims that because Trooper Weigel did not lawfully detain

him after returning his documents, his continued detention “to wait for the canine

unit to arrive to search his truck and the consequent search by the dog constitute

an unreasonable search and seizure.” Stated differently, Mr. Robinson maintains

that he did not consent to await the arrival of the canine unit or the “subsequent

dog sniff search.”



      Both parties apparently accept Mr. Robinson’s characterization that the use

of the drug sniffing dog constituted a search of his pickup, and rely on consent to

search case law exclusively. However, this court has recognized a dog sniff of a

lawfully detained vehicle is not a search. United States v. Morales-Zamora, 914

F.2d 200, 203 (10th Cir. 1990). Similarly, random dog sniffing of vehicles

without prior lawful detention or reasonable suspicion is not a search. United

States v. Ludwig, 10 F.3d 1523, 1527 (10th Cir. 1993). From the reasoning of this

case law, it is a logical extension that a canine sniff of a vehicle whose driver has

consented to an extended encounter is not a search. See id. Accordingly, the


                                         -12-
drug sniffing dog that walked around the exterior of Mr. Robinson’s pickup truck

did not “search” the truck, and an evaluation under our consent to search case law

is inappropriate. This does not end our analysis, however, for we still must

determine whether the district court clearly erred in finding Mr. Robinson

consented to continue his encounter to await the arrival of the canine unit after

Trooper Weigel completed his additional questioning. See United States v.

Chavira, 9 F.3d 888, 890 n.1 (10th Cir. 1993) (“Although consent is not required

for a dog sniff of a lawfully detained vehicle ... it is required for continued

detention beyond the lawful period.”).

      The district court determined Mr. Robinson “consented to extend the length

of this stop for a canine to arrive and walk around the exterior of his pickup

truck.” The district court found Trooper Weigel asked Mr. Robinson whether he

minded waiting for a dog to arrive and sniff around Mr. Robinson’s truck.

According to the district court, Mr. Robinson’s manner and intonation when he

responded “sure” conveyed his consent to Trooper Weigel’s request, and not his

objection. Trooper Weigel then told Mr. Robinson “O.K., hold tight,” which the

district court found was merely a request to be patient while Trooper Weigel made

arrangements for the canine unit. Before the canine unit arrived, Trooper Weigel

returned to the pickup truck and informed Mr. Robinson the delay would last a

couple more minutes. The district court noted Trooper Weigel’s testimony that


                                          -13-
Mr. Robinson indicated the additional delay was okay, and found Mr. Robinson

did not object to the delay. Because the district court concluded Mr. Robinson

plainly consented to wait for the drug sniffing dog to arrive and walk around his

truck, the court held “[t]his is not a situation where the defendant must give any

additional voluntary consent to search, for consent is not required for a dog sniff

of a lawfully detained vehicle.” (Emphasis added and quotation marks and

citation omitted.) Finally, the district court held the troopers had probable cause

to search the pickup truck once the dog alerted to the presence of controlled

substances, and did not need Mr. Robinson’s consent to search.



      On appeal, Mr. Robinson contends the district court clearly erred in finding

he consented to Trooper Weigel’s question whether he minded if Trooper Weigel

called a canine unit. Mr. Robinson claims his response can be construed as either

consent (“sure a dog could sniff around”) or objection (“sure he minded if a dog

sniffed around”) to the prolonged encounter and dog sniff. Mr. Robinson’s

argument is not persuasive.



      From the record before us, the district court did not clearly err in finding

Mr. Robinson’s demeanor and tone indicated his consent to wait. In addition, Mr.

Robinson does not challenge the district court’s finding that he did not object


                                        -14-
when he learned Trooper Weigel had in fact called a canine unit and the dog

would arrive in a couple of minutes. Trooper Weigel testified that when he

informed Mr. Robinson of the delay in the canine unit’s arrival, Mr. Robinson

indicated his willingness to wait a couple more minutes for the canine sniff by

saying “‘Okay,’ or words to that effect.” In short, Mr. Robinson’s initial response

and subsequent conduct indicate he consented to the extended encounter. See De

la Cruz-Tapia, 162 F.3d at 1277 (“Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.”).



      To the extent Mr. Robinson alleges his consent to the extended encounter

was involuntary or a product of police coercion, we disagree. See Sandoval, 29

F.3d at 541 (recognizing lack of “coercive show of authority” may indicate, but

does not compel the conclusion, that driver consented voluntarily to a police-

citizen encounter). In denying Mr. Robinson’s motion to suppress, the district

court implicitly found Mr. Robinson’s consent to the extended encounter was

voluntary and not coerced. This finding should be accepted by this court absent

clear error. See Patten, 183 F.3d at 1193; see also United States v. Toro-Pelaez,

107 F.3d 819, 824-25 (10th Cir.), cert. denied, 522 U.S. 845 (1997). Mr.

Robinson reiterates his argument that Trooper Weigel did not tell him he is free to

leave; however, Trooper Weigel was not required to inform Mr. Robinson in order


                                        -15-
for the prolonged encounter to be deemed consensual. See West, 219 F.3d at

1176-77. Although Mr. Robinson asserts Trooper Weigel did not inform him he

had the right to refuse consent, Mr. Robinson fails to provide reasoned argument

or legal authority to support a claim that such information must be conveyed for

an extended encounter to be deemed consensual. Mr. Robinson also suggests the

presence of the second trooper created an intimidating environment. It is

uncontroverted Trooper Weigel was the only officer present when Mr. Robinson

initially consented to wait, and when the second officer did arrive he remained in

Trooper Weigel’s car until after the canine unit alerted to the presence of

controlled substances. Finally, Mr. Robinson maintains his consent was

involuntary and coerced because Trooper Weigel was determined to find out what

was under the truck bed cover by “announcing his intent” to call the canine unit.

We note Trooper Weigel first asked Mr. Robinson whether he could bring in the

canine unit, and only after receiving Mr. Robinson’s consent did Trooper Weigel

call for the drug sniffing dog. In other words, Trooper Weigel announced his

intent after receiving Mr. Robinson’s consent. Accordingly, there is no evidence

in the record before us from which we could conclude the district court clearly

erred in finding Mr. Robinson’s consent to the prolonged encounter was voluntary

and not coerced.




                                        -16-
      Once the canine alerted to the presence of drugs, the troopers had probable

cause to search the pickup truck, and did not need Mr. Robinson’s consent. Mr.

Robinson briefly asserts, in a conclusory fashion, that the troopers unlawfully

searched the cab of his pickup truck. We note, however, the troopers searched the

cab of the pickup after the dog alerted to the presence of illegal substances, and

the troopers found no evidence in the cab. Furthermore, once the dog alerted,

there was probable cause to conduct a warrantless search of the entire pickup

truck and its contents where contraband may be hidden. See United States v.

Klinginsmith, 25 F.3d 1507, 1510 (10th Cir.), cert. denied, 513 U.S. 1059 (1994);

see also United States v. Barbee, 968 F.2d 1026, 1030 (10th Cir. 1992) (quoting

United States v. Ross, 456 U.S. 798, 825 (1982) (“If probable cause justifies the

search of a lawfully stopped vehicle, it justifies the search of every part of the

vehicle and its contents that may conceal the object of the search.”)). Mr.

Robinson’s argument necessarily fails.



      We affirm the district court’s denial of Mr. Robinson’s motion to suppress

the evidence.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Senior Circuit Judge

                                         -17-
