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

                                                                               FILED
                                                                          September 15, 2008
                                         No. 07-51132
                                                                         Charles R. Fulbruge III
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

v.

TERRY CONLENZO-HUFFMAN,

                                                     Defendant-Appellant.


                     Appeals from the United States District Court
                          for the Western District of Texas,
                                    Waco Division.
                                 USDC No. 6:07-cr-73


Before GARZA and ELROD, Circuit Judges, and HICKS, District Judge.*
PER CURIAM:**
       Appellant Terry Conlenzo-Huffman appeals the district court’s denial of
his motion to suppress. We affirm.
                                     I. BACKGROUND
       In the district court below the parties stipulated the following facts.
       On January 17, 2007, Commander Joe Davis of the Robertson County
Sheriff’s Department received a tip that Appellant Huffman would be in Calvert,



       *
           District Judge of the Western District of Louisiana, sitting by designation.
       **
         Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Rule
47.5.4.
                                No. 07-51132

Texas that day driving a blue Buick Park Avenue with a missing hubcap, and
that Huffman would be in possession of a substantial amount of cocaine. That
tip was provided by a confidential informant (“CI”) who had provided reliable
tips to Davis in the past. Prompted by the tip, Davis traveled to Calvert on
January 17th to pursue Huffman; in doing so, he asked for and received the
assistance of Calvert Police Chief Joe Cheatham. Davis asked Cheatham to
locate and stop Huffman on a traffic violation if possible. Cheatham spotted
Huffman as a passenger in a vehicle matching that described by the CI.
Although Huffman owned the Buick, driving it was an acquaintance of his
named Joey Bowen; a third individual occupied the back seat.
      Observing that neither Huffman nor his passenger were wearing seatbelts,
Cheatham stopped the vehicle and asked the occupants to exit. Although he
complied, Huffman refused to step away from the vehicle, but rather insisted on
remaining in the area between the front seat and the open passenger door.
Huffman was also observed reaching into the passenger compartment for various
items. Cheatham asked Bowen for permission to search the vehicle. Stating
that he could not provide such permission because he was not the vehicle’s
owner, Bowen declined. Cheatham thus sought permission to search the vehicle
from Huffman, the owner, who also declined.
      Bowen had a valid driver’s licence, and Huffman provided proof of
automobile insurance.     Further, a computer check did not reveal any
outstanding warrants as to any of the Buick’s occupants. Cheatham issued
Bowen and Huffman citations for failing to wear seatbelts.       He next told
Huffman that he was free to leave, but Huffman chose to remain.
      Based on the information provided by the CI, the officers’ suspicion that
the Buick contained narcotics was not quickly dispelled. Unable to obtain
consent to search the vehicle, the officers sought a narcotics dog to conduct a
“sniff test” of the vehicle. Because the narcotics dog belonging to the Calvert
Police Department was not “certified,” the officers sought the use of the dog

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belonging to the City of Bryan, located thirty-five miles away.         That dog
eventually arrived on scene. Upon examining the vehicle, the dog signaled the
presence of narcotics inside. The stop lasted one hour and twenty minutes. It
was stipulated below that “much of the delay in the stop was attributable to
[Huffman], who refused to comply with officers’ orders to step away from the
vehicle and was verbally abusive.” A subsequent search of the vehicle yielded
approximately 82.7 grams of cocaine.
      In agreeing to stipulate the above facts, Huffman sought “to avoid the
needless time, expense and inconvenience of trial, but to preserve his appellate
rights on the [c]ourt’s denial of his Motion to Suppress.” Huffman moved to
suppress the evidence found in his vehicle, which the district court denied on
July 19, 2007. On July 26, 2007, the district court held a bench trial on the
stipulated facts. The district court found Huffman guilty of possession with the
intent to distribute in excess of 50 grams of cocaine, after which it sentenced
Huffman to life in prison. Huffman appeals only the district court’s refusal to
suppress the evidence found in his vehicle.
                               II. DISCUSSION
      Huffman argues that, based on the stipulated facts, “the scope of the
investigative detention and seizure lasted longer than was necessary to
effectuate the purpose of the stop,” and therefore his detention was
unconstitutionally prolonged, and the search of his vehicle, illegal. In evaluating
the propriety of a district court’s suppression ruling, we review questions of law
de novo and findings of fact for clear error. See United States v. Cano, 519 F.3d
512, 515 (5th Cir. 2008). Because the facts on which the district court based its
suppression ruling are not in dispute, we face only the task of determining de
novo whether Huffman’s detention was unconstitutionally prolonged.
      Pursuant to the Supreme Court’s seminal decision in Terry v. Ohio, 392
U.S. 1 (1968), we have concluded that “[t]he stopping of a vehicle and detention
of its occupants constitutes a ‘seizure’ under the Fourth Amendment.” United

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States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004). Under Terry, we employ
a two-part test to determine the legality of police investigatory stops. We “first
examine whether the officer’s action was justified at its inception, and then
inquire whether the officer’s subsequent actions were reasonably related in scope
to the circumstances that justified the stop.” Id. Huffman does not challenge
the validity of the initial stop, as it was clearly justified: Cheatham observed him
violating a traffic law.
      Under the second prong of the Terry test we must determine whether the
length of Huffman’s detention was “reasonably related to the circumstances that
justified the stop, or to dispelling [the officers’] reasonable suspicion developed
during the stop.” Id. With regard to the duration of a detention, the Supreme
Court has stated:
      While it is clear that the brevity of the invasion of the individual’s
      Fourth Amendment interests is an important factor in determining
      whether the seizure is so minimally intrusive as to be justifiable on
      reasonable suspicion, we have emphasized the need to consider the
      law enforcement purposes to be served by the stop as well as the
      time reasonably needed to effectuate those purposes. Much as a
      “bright line” rule would be desirable, in evaluating whether an
      investigative detention is unreasonable, common sense and ordinary
      human experience must govern over rigid criteria.

United States v. Sharpe, 470 U.S. 675, 685 (1985) (citations and internal
quotation marks omitted). The court interpreted the Terry reasonableness
requirement to mean that:
      In assessing whether a detention is too long in duration to be
      justified as an investigative stop, . . . it [is] appropriate to examine
      whether the police diligently pursued a means of investigation that
      was likely to confirm or dispel their suspicions quickly, during
      which time it was necessary to detain the defendant.

Id. at 686 (1985); see also United States v. Hare, 150 F.3d 419, 427 (5th Cir.
1998) (“[S]o long as Young was diligently pursuing a means of investigation that
was likely to confirm or dispel his suspicions quickly, during which time it was


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necessary to detain the defendant, the duration of Majors’ detention was
reasonable under the Fourth Amendment.” (citations and internal quotation
marks omitted)).
      The evidence does not support Huffman’s contention that the officers
unreasonably detained him. First, Huffman stipulated that “much of the delay
in the stop was attributable to [Huffman], who refused to comply with officers’
orders to step away from the vehicle and was verbally abusive.” Thus, he
implicitly concedes that the officers cannot be faulted for the entire length of the
investigation.
      Second, although such details were not specifically stipulated to,
Huffman’s own explanation as to why the officers’ investigation was prolonged
actually helps demonstrate why its duration was not unreasonable.                At
Huffman’s trial, Commander Davis explained that while he asked the Calvert
Police Department for permission to use their narcotics dog, he was notified that
the Calvert dog was “not certified,” and that an officer with the Calvert Police
was “trying to retrain the dog and . . . was not comfortable with that particular
dog.” Consequently, the officers sought the assistance of the Bryan Police
Department, thirty-five miles away, which eventually lent the officers its
narcotics dog. These facts suggest that the officers obtained a capable narcotics
dog as quickly as possible. Thus, Huffman has “presented no evidence that the
officers were dilatory in their investigation.” Sharpe, 470 U.S. at 687. Indeed,
he fails to even so allege.
      Rather than alleging a lack of investigatory diligence, Huffman simply
argues that the length of his detention per se was a Fourth Amendment
violation. According to Huffman, “[t]he police do not have the right to pick and
choose which narcotics trained dog to use while a citizen and his property are
subject to a lengthy detention . . . .” Huffman cites no authority to support this
bald declaration.



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      We acknowledge that Huffman’s detention was unusually lengthy, but this
fact does not alone establish a Fourth Amendment violation. To be sure, we
have recognized that:
      a detention may be of excessively long duration even though the
      officers have not completed and continue to pursue investigation of
      the matters justifying its initiation. . . . A prolonged investigative
      detention may be tantamount to a de facto arrest, a more intrusive
      custodial state which must be based upon probable cause rather
      than mere reasonable suspicion.

United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993). However, we have
also stated that “The removal of the suspect from the scene of the stop to police
headquarters usually marks the point at which an investigative stop becomes a
de facto arrest.” United States v. Martinez, 808 F.2d 1050, 1055 (5th Cir. 1987).
      After they issued Huffman the citation, the officers told him he was free
to leave. Thus, the stop subsequent to that point amounted to a seizure of his
vehicle rather than of Huffman himself. This fact alone does not categorically
foreclose Huffman’s Fourth Amendment argument. See United States v. Place,
462 U.S. 696, 705, 708-09 (1983) (“The intrusion on possessory interests
occasioned by a seizure of one’s personal effects can vary both in its nature and
extent. . . . [W]hen the police seize luggage from the suspect’s custody, we think
the limitations applicable to investigative detentions of the person should define
the permissible scope of an investigative detention of the person's luggage on
less than probable cause.”). It does, however, suggest that the officers sought to
use the most minimally intrusive means in dispelling or confirming their
suspicions. See Sharpe, 470 U.S. at 685 (investigation must be “minimally
intrusive . . . to be justifiable on reasonable suspicion”).
      More importantly, unlike in cases where courts have found detentions
unreasonably lengthy, see, e.g., Place, 462 U.S. at 709, here Huffman stipulated
that “much” of the delay in the stop was the result of his own recalcitrant and
insolent behavior. Huffman argues that the district court placed excessive


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emphasis on this concession, and argues before us that “even if [he] had been
completely cooperative and compliant, the prolonged delay caused by the police
choosing which drug detecting dog to use . . . was constitutionally unreasonable.”
Huffman, however, does not explain how we are to determine what percentage
of the investigation’s duration is apportionable to the officers’ conduct alone.
Further, the Supreme Court has made clear that case law such as Place is
inapposite where officers do not unnecessarily prolong detention. See Sharpe,
470 U.S. at 685. As explained above, we have no reason to believe the officers
were dilatory in their investigation of Huffman’s vehicle, and Huffman does not
even attempt to provide one. Thus, given the specific facts of this case, we have
no basis on which to conclude that the officers took an unconstitutionally long
time to complete their investigation.
       Based on Huffman’s recalcitrance, his suspicious behavior at the scene,
and the reliable tip from the CI, the officers, even after issuing Huffman and
Bowen citations, had continuing reasonable suspicion that criminal activity was
afoot. In light of the stipulated facts, the officers’ continued detention of
Huffman’s vehicle was constitutionally permissible because, as far as we can
tell, the officers were diligent in attempting to confirm or dispel their suspicion
that Huffman was in possession of narcotics.
      The judgment of the district court is AFFIRMED.




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