     Case: 15-10226      Document: 00513600112         Page: 1    Date Filed: 07/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 15-10226                               FILED
                                                                             July 19, 2016

UNITED STATES OF AMERICA,                                                   Lyle W. Cayce
                                                                                 Clerk
              Plaintiff - Appellee

v.

JOHNNY DAVID JOHNSON,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-135-1


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Defendant appeals the district court’s denial of his motion to suppress
evidence obtained in a traffic stop based on a violation of the defendant’s
Fourth Amendment rights. According to the defendant, the police discovered
drugs in the vehicle that he was riding in only after unconstitutionally
extending the traffic stop to conduct a dog sniff. We AFFIRM the district court’s
judgment: the police officers stopped defendant’s vehicle based on a reasonable


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-10226     Document: 00513600112    Page: 2   Date Filed: 07/19/2016



                                 No. 15-10226


suspicion of both traffic violations and drug trafficking, and the dog sniff was
reasonably necessary to investigate the suspected drug activity.
                                   I.
      A narcotics investigator for the Tarrant County, Texas Sheriff’s Office
received information that Johnny David Johnson sold methamphetamine from
his home. The investigator enlisted a confidential informant to help gather
evidence against Johnson.
      In early February 2014, the informant met Johnson at his home and
asked to purchase methamphetamine. Johnson kept a substantial amount of a
crystal-like substance in a plastic bag, and after removing a portion, he handed
it to the informant. Police later tested this substance and confirmed that it was
methamphetamine. Roughly two weeks later, the informant made a second
controlled buy from Johnson. Again, the informant visited Johnson at his
home, and Johnson sold him a substance later confirmed as methamphetamine
by police. Following the controlled buys of methamphetamine, the narcotics
investigator obtained a search warrant for Johnson’s home.
      On February 13, 2014, the Sheriff’s Office proceeded to execute the
warrant to search Johnson’s home. The team tasked with conducting the
search included Eric Curtis, a narcotics investigator, and Jeff Tindle, a canine
officer. Curtis had Johnson’s home under surveillance that morning as pre-
search preparation.
      Curtis saw Johnson walk out of his home and onto the driveway where
several vehicles were parked. Johnson initially went to a white Jeep, but Curtis
did not see Johnson remove anything from the vehicle nor did he observe any
object in his hands. Johnson then entered the passenger’s side door of a pickup
truck parked nearby.
                                        2
     Case: 15-10226      Document: 00513600112        Page: 3     Date Filed: 07/19/2016



                                     No. 15-10226


      The driver of the truck drove away with Johnson as a passenger; Curtis
followed them in his unmarked vehicle. Curtis radioed Tindle to tell him that
Johnson had left the home in a pickup truck and that he saw the vehicle
commit two traffic violations. He asked Tindle to stop the truck in his marked
police unit.
      Tindle stopped the pickup truck and asked its occupants to exit. Johnson,
along with the truck’s other occupants, complied. 1 However, at some point, the
vehicle’s driver became agitated and Tindle had to restrain him with
handcuffs. After the occupants exited the vehicle, Tindle ran a computer search
for outstanding warrants. While none existed, the search revealed that each
had prior felony convictions and that two of the occupants were on probation.
      Curtis arrived at the scene around the time Tindle completed the
background check. He asked permission to search the pickup truck which the
driver denied. Curtis then instructed Tindle to use his canine to perform a sniff
test. While sniffing the pickup truck, the dog alerted to the presence of drugs.
Curtis and Tindle searched the truck and found both methamphetamine and
a pistol.
      The government indicted Johnson for possession with intent to distribute
fifty grams or more of methamphetamine. Before trial, Johnson moved to
suppress the drugs seized during the traffic stop arguing that the dog sniff
unconstitutionally extended the stop and his detention. The district court
denied his motion; it found that Johnson lacked Fourth Amendment standing
to challenge the evidence, or alternatively, reasonable suspicion supported the



      1  Other occupants of the pickup truck included its driver, John Berg, and Cora Kidd,
the rear passenger.
                                            3
    Case: 15-10226       Document: 00513600112         Page: 4     Date Filed: 07/19/2016



                                      No. 15-10226


sniff test. Ultimately, a jury found Johnson guilty. He now challenges the
district court’s denial of his motion to suppress evidence from the traffic stop.


      The denial of a motion to suppress creates a mixed question of fact and
law. 2 We review factual findings for clear error and conclusions of law de novo. 3
                                       II.
      Johnson argues that the district court erred in denying his motion to
suppress evidence, because the evidence was discovered when police
unconstitutionally extended the stop to perform a dog sniff. We analyze this
argument in two steps: we consider whether the initial stop was justified by
reasonable suspicion; if so, we then determine whether the officer’s subsequent
actions during the stop reasonably related to the mission of the stop. 4
      The stop was made because of both the traffic violations and a reasonable
suspicion of drug activity based on the information previously received from a
confidential informant in connection with two controlled buys. This
information was enough for a judicial officer to find probable cause to issue a
search warrant for Johnson’s home, and it is obviously enough to satisfy the
much lower standard of reasonable suspicion for a traffic stop.
      Curtis and Tindle’s mission on the day of the stop was to investigate
Johnson’s drug activity and to execute the search warrant authorizing that
investigation. We have no difficulty saying that furthering their investigation
into Johnson’s drug activity was one reason for the stop. Moreover, this court
has recognized that reliance by an officer on information of drug activity


      2 United States v. Riazco, 91 F.3d 752, 754 (5th Cir. 1996).
      3 Id.
      4 United States v. Davis, 620 F. App’x 295, 298 (5th Cir. 2015).

                                             4
     Case: 15-10226       Document: 00513600112          Page: 5     Date Filed: 07/19/2016



                                       No. 15-10226


developed before a traffic stop can be used as an additional justification for the
traffic stop. 5 Therefore, because Tindle made the initial stop on suspicion of
both a traffic violation and drug activity, the dog sniff was reasonably related
to a cause of the stop. 6
                                        III.
       For these reasons, we AFFIRM the district court’s judgment.




       5  See, e.g., United States v. Henton, 600 F. App’x 263, 264 (5th Cir. 2015) (“Given the
totality of the circumstances, including the information developed before and after the stop,
the officer had reasonable suspicion to prolong the traffic stop.”).
        6 See id. (“Henton was pulled over for a traffic violation but also because the officers

had reasonable suspicion of drug activity[,]” and thus “the officer had reasonable suspicion
to prolong the traffic stop and conduct the dog sniff.”).
                                               5
    Case: 15-10226     Document: 00513600112      Page: 6   Date Filed: 07/19/2016




      JAMES E. GRAVES, JR., Circuit Judge, dissenting.
      The majority opinion concludes that, “because Tindle made the initial
stop on suspicion of both a traffic violation and drug activity, the dog sniff was
reasonably related to a cause of the stop.” I disagree, and therefore respectfully
dissent.
                                         I.
      “We analyze the legality of traffic stops for Fourth Amendment purposes
under the standard articulated by the Supreme Court in Terry v. Ohio.” United
States v. Pack, 612 F.3d 341, 349-50 (5th Cir. 2010). This analysis involves a
two-part inquiry where we first determine if the stop of the vehicle was
warranted and then decide whether the officer’s actions following the stop were
“reasonably related in scope to the circumstances that caused him to stop the
vehicle in the first place.” Id at 350. During the stop, if the officer acquires
reasonable suspicion that criminal activity is afoot, that officer may prolong
the stop to dispel such suspicion. Id.
      Johnson does not challenge the legality of the initial stop.        Rather,
Johnson contends that the officers did not have reasonable suspicion to extend
the traffic stop beyond the time necessary to perform computer checks of the
driver’s and passengers’ backgrounds. See Rodriguez v. United States, 135 S.
Ct. 1609, 1615-16 (2015). The majority apparently concluded that there was
reasonable suspicion to prolong the stop because of facts that formed the basis
of a search warrant for evidence of drug activity at Johnson’s home. I disagree.
      When evaluating whether there was reasonable suspicion to extend a
vehicle stop we consider the “totality of the circumstances” to determine
whether there was “a particularized and objective basis” for the officer’s
suspicion. United States v. Arvizu, 534 U.S. 266, 273 (2002). While a causal
nexus between the officer’s suspicion and the initial reason for the stop is not
                                              6
     Case: 15-10226      Document: 00513600112        Page: 7     Date Filed: 07/19/2016



                                         No. 15-10226
required, we do “inquire whether the officer’s . . . actions were reasonably
related in scope to the circumstances that justified the stop.” United States v.
Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc).
      In this case, the officer testified that the basis of the stop was two traffic
violations observed by a different officer.           During that time, the officer
performed a computer check and uncovered no warrants or issues meriting
prolonging the stop. At that point, the stop should have concluded and the
occupants of the car should have been free to leave. The majority opinion
nevertheless concludes that there was reasonable suspicion to prolong the stop
because the officer who requested the traffic stop was aware of facts contained
in an affidavit seeking a search warrant authorizing a search of Johnson’s
home. But, the sole basis for the stop was minor traffic violations.                   No
reasonable suspicion of criminal activity was developed during the stop. 1
Therefore, I would conclude that the officers exceeded their authority by
ordering a dog sniff following a traffic stop without suspicion, acquired during
the stop, that the driver or passengers were engaged in criminal activity.
      I respectfully dissent.




      1  The government contends that there was reasonable suspicion to prolong the stop
because the driver of the car was agitated and had to be handcuffed. But, the officer who
pulled over the vehicle testified at the suppression hearing that he did not remember who
handcuffed the driver, and did not remember whether the driver was arrested before or after
the search of the vehicle.
                                                7
