                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         DEC 11 2003
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 03-8049
 v.                                               (D.C. No. 02-CR-206-B)
                                                         (D. Wyo.)
 VINCENT L. MARTIN,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **


      Mr. Martin was convicted upon a conditional plea of guilty of possession

with intent to distribute marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(C), and

sentenced to 40 months imprisonment followed by three years supervised release.

He was also fined $5,000. On appeal, Mr. Martin cosntests the denial of his

motion to suppress, arguing that the state trooper lacked a reasonable articulable

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
suspicion to detain him, and that his detention and the subsequent search of his

vehicle were in violation of the Fourth Amendment. Our jurisdiction arises under

28 U.S.C. § 1291 and we affirm.



                                     Background

      Mr. Martin’s troubles began when he was stopped on I-80 in Wyoming for

speeding 82 m.p.h. in a 75 m.p.h. zone. While requesting his driver’s license and

registration, the state police trooper noticed two large duffel bags in the rear

cargo area of Mr. Martin’s sport-utility vehicle and a strong odor of air freshener.

According to the trooper, Mr. Martin was extremely nervous, avoiding eye

contact, even after learning he would receive a warning. The trooper also

testified that Mr. Martin was unable to name the registered owner of the vehicle,

first stating that the vehicle belonged to “Bryan,” then “Bryan’s uncle,” and

finally “Mark,” last names not given. The trooper also learned that Mr. Martin

was traveling from California to Minnesota, and the trooper considered this

significant because, based upon his training and experience, he considered the

former a source state for illicit drugs and the midwest a distribution area.

      Mr. Martin received a warning and the trooper returned his documents.

Thereafter, Mr. Martin agreed to answer a few additional questions and denied

that he had any contraband in the vehicle, though he declined to consent to a


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search of the vehicle. The trooper then held Mr. Martin for approximately an

hour, pending the arrival of the closest available dog handler (and dog) located

some 78 miles away. The drug dog alerted and 131 pounds of marijuana was

discovered in two large duffle bags in the rear cargo area.



                                     Discussion

      We review the district court’s findings of historical fact for clear error and

in the light most favorable to the prevailing party, and its legal conclusions on

Fourth Amendment reasonableness including reasonable suspicion and probable

cause de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). Mr. Martin

does not challenge his initial stop for speeding, but rather his continued detention

beyond after receiving the written warning. Mr. Martin suggests that (1) each of

the factors relied upon by the trooper might be innocent, (2) the trooper’s

continued detention of him was based upon a hunch that was not confirmed until

he refused to consent to search, and (3) a reasonable investigation would have

allowed an opportunity for Mr. Martin to provide innocent reasons for the neutral

factors that the trooper relied upon. He concludes by stating that the search of the

vehicle was a product of retaliation for exercising his right to refuse a search and

that he was detained for an unreasonable amount of time.

      The district court relied upon the factors set out above to conclude that the


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trooper had reasonable suspicion to detain Mr. Martin pending the arrival of the

dog handler and that once the dog alerted, probable cause existed to search the

vehicle. Aplt. Br. Attach. Order at 7-8; 2 R. at 61-62. An officer need only have

reasonable articulable suspicion that criminal activity is afoot to justify a brief

investigative detention. Terry v. Ohio, 392 U.S. 1, 30 (1968). The Supreme

Court has repeatedly held that it is the totality of the circumstances, not the

supporting factors taken in isolation, that must be considered in deciding whether

the facts support reasonable suspicion. United States v. Arvizu, 534 U.S. 266,

273 (2002); United States v. Cortez, 449 U.S. 411, 417-19 (1981).

      We agree with the district court that the factors discussed above are

indicative of reasonable suspicion, and that once the dog alerted, there was

probable cause. United States v. Souza, 223 F.3d 1197, 1205 (10th Cir. 2000).

Although reasonable suspicion may not be based upon a refusal of consent to a

search, see United States v. Williams, 271 F.3d 1262, 1268 (10th Cir. 2001), cert.

denied, 535 U.S. 1019 (2002), the objective facts known to the trooper certainly

support reasonable suspicion prior to the refusal. See Whren v. United States,

517 U.S. 806, 813 (1996); see also 2 R. at 26-27 (trooper recounting facts he

relied upon). Finally, a law enforcement officer may rely upon his training and

experience without inquiring of a defendant as to innocent explanations. See

Arvizu, 534 U.S. at 273.


                                          -4-
      The colorable issue in this appeal is the approximately one-hour delay

between Mr. Martin’s detention and the arrival of the dog handler and his dog.

But given the abundant reasonable suspicion in this case and the diligence by both

the trooper and the handler to expedite the dog sniff, the delay was reasonable and

not violative of the Fourth Amendment. See United States v. Place, 462 U.S. 696,

709-10 (1983) (“[I]n assessing the effect of the length of the detention, we take

into account whether the police diligently pursue their investigation.”); Williams,

271 F.3d at 1271 (upholding detention founded upon reasonable suspicion where

15 minutes elapsed from initial stop to arrival of dog); United States v. Villa-

Chaparro, 115 F.3d 797, 802-03 (10th Cir. 1997) (upholding detention founded

upon reasonable suspicion where 43 minutes elapsed from initial stop to arrival of

dog); United States v. Rutherford, 824 F.2d 831, 833-34 (10th Cir. 1987)

(upholding one-hour detention founded upon reasonable suspicion where 25-30

minute delay was caused by a computer problem).

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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