                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  February 23, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                        No. 09-4027
          v.                                              (D. of Utah)
 DANIEL BELTRAN-DIAZ,                            (D.C. No. 2:07-CR-253-DB-1)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, HOLMES, Circuit Judges, and POLLAK **, District
Judge.


      Daniel Beltran-Diaz appeals the district court’s denial of his Motion to

Suppress Evidence. He argues the district court erred in concluding that a police

officer had a reasonable suspicion of criminal activity sufficient to justify his

brief detention after a routine traffic stop. We see no clear error in the district

court’s findings of fact, and the district court correctly determined that a




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
        Louis H. Pollak, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
reasonable police officer, in light of the totality of the circumstances, would have

reasonable suspicion of criminal activity sufficient to justify the detention.

      Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the district

court’s ruling.

                                I. Factual Background

      The following relevant facts are undisputed. On March 12, 2007, Officer

Nick Bowles of the Utah Highway Patrol noticed a white pick-up truck traveling

east on I-70, near Salina, Utah. The truck caught the officer’s attention because,

although a passenger vehicle, it had a commercial license plate. Officer Bowles

requested dispatch to check the license plate number, but dispatch informed him

that the number was not on file. The officer then pulled Beltran-Diaz over to

perform a registration check.

      Approaching Beltran-Diaz’s truck, Officer Bowles smelled a strong scent of

air freshener and observed a small piece of luggage in the back seat of the truck.

He asked for Beltran-Diaz’s identification, as well as the truck’s registration.

Beltran-Diaz provided a Mexican identification card with the name of Marcos

Mejia. While Beltran-Diaz looked for his registration, Officer Bowles asked him

about his travels, and, in broken English, Beltran-Diaz informed the officer he

was traveling from Beachwood, California (a town near Reno) to Nebraska.

      Officer Bowles found that claim odd since I-70 is not a direct link to

Nebraska from Northern California, and I-80 is a substantially shorter route. That

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oddity, coupled with the strong scent of air freshener and the small amount of

luggage in the back seat, made Officer Bowles suspect that Beltran-Diaz might be

involved in drug activity.

      Several other events increased the officer’s suspicion. First, after ensuring

the registration for the car was valid, Officer Bowles walked with Beltran-Diaz to

the rear of the truck so that he could point out the commercial license plate and

explain why it did not come back on the computer check. On the way to the back

of the truck, Officer Bowles spied a full gas can in the bed of the truck. In his

experience, every time Officer Bowles had found someone stashing drugs in their

gas tank (based on hundreds of previous arrests), he had also found a full gas can

with the vehicle. The gas can thus added to his suspicions. The officer also

noticed plastic wheel-well covers behind the tires, blocking his view of the

undercarriage of the truck, an observation consistent with recent alterations to the

vehicle.

      After noticing these items, Officer Bowles asked Beltran-Diaz several more

questions about his travel plans and learned he had been in California for five

days and that he was returning to Nebraska. The story was inconsistent with the

small amount of luggage Beltran-Diaz appeared to be carrying for the trip.

      At this point, Officer Bowles thanked Beltran-Diaz, and the two men

returned to their respective vehicles. On his way back to his patrol car, however,

Officer Bowles noticed that the driver-side rear wheel-well cover was newer than

                                          -3-
that on the passenger side. This was yet another signal to the officer that the

vehicle had been recently altered and Beltran-Diaz may have been smuggling

drugs in the gas tank.

        Based on this information, Officer Bowles approached Beltran-Diaz from

the passenger-side window and asked if he could take a closer look at the truck.

Beltran-Diaz agreed and climbed back out of the cab. The officer looked

underneath the gas tank and observed new straps securing the gas tank hoses, as

well as evidence on those hoses that someone had recently removed the straps.

Moreover, it appeared to Officer Bowles that someone had recently retooled the

nuts.

        By then, Officer Bowles concluded the vehicle likely carried drugs.

Wanting to inspect the interior of the gas tank, Officer Bowles decided to seek

Beltran-Diaz’s consent for a search. To facilitate the request, given Beltran-

Diaz’s limited English, Officer Bowles radioed for a Spanish-speaking officer,

and Officer Halliday arrived within minutes from the nearby town of Salina, Utah.

Speaking through this new officer, Officer Bowles asked Beltran-Diaz for

permission to look at the gas tank. Beltran-Diaz consented.

        Officer Bowles then tried to look inside the tank with a fiber-optic scope,

but a device on the mouth of the tank prevented him from doing so. The officers

then asked for Beltran-Diaz’s permission to take the truck into a garage where




                                          -4-
they could inspect the tank more thoroughly. He agreed, and at the garage, the

officers removed the tank to find six packages of cocaine hidden inside it.

                              II. Procedural History

      Beltran-Diaz filed his Motion to Suppress the evidence seized by Officer

Bowles with the district court, who referred it to a magistrate judge. The

magistrate judge issued a Report and Recommendation finding “that reasonable

suspicion did not exist to detain Defendant for the entire length of the stop.” R.,

Vol. 1, Doc. 38 at 4. The magistrate judge recommended that the district court

grant the Motion to Suppress.

      The district court, however, declined to adopt the magistrate judge’s

recommendation and instead denied Beltran-Diaz’s motion, concluding that under

the totality of the circumstances, Officer Bowles had a reasonable suspicion of

criminal activity sufficient to justify further brief detention of Beltran-Diaz.

Beltran-Diaz appeals that ruling.

                                    III. Analysis

      A. Standard of Review

      We review the district court’s findings of fact for clear error only. United

States v. Pikyavit, 527 F.3d 1126, 1129 (10th Cir. 2008). We review de novo the

district court’s legal determination that the police officer had a reasonable

suspicion of criminal activity sufficient to justify the encounter and detention.

United States v. Contreras, 506 F.3d 1031, 1035 (10th Cir. 2007) (“The ultimate

                                          -5-
determination of reasonableness under the Fourth Amendment is a question of

law, which we review de novo.”). Lastly, we review the evidence “in the light

most favorable to the prevailing party below—in this case, the government.”

Pikyavit, 527 F.3d at 1130.

      B. Reasonable Suspicion

      Neither party challenges the facts as the district court found them, and upon

review of the record, we find no clear error in the district court’s findings. Thus,

we are left only to answer whether the district court erred in concluding that

Officer Bowles had a reasonable suspicion of criminal activity sufficient to justify

the brief detention after the registration check. We find no error.

      As an initial matter, Beltran-Diaz does not contest the reasonableness of the

traffic stop. Rather, he focuses only on the length of the detention, arguing that

Officer Bowles unreasonably extended the encounter after resolving the issue of

the vehicle’s registration.

      Our cases make clear that after an officer finishes a routine traffic stop, a

brief additional detention of the driver for reasons not related to the initial traffic

stop is proper if (1) the driver provides consent, or (2) “the officer has an

objectively reasonable and articulable suspicion that illegal activity has occurred

or is occurring.” United States v. Cervine, 347 F.3d 865, 868–69 (10th Cir. 2003)

(citations and quotations omitted). To determine whether reasonable suspicion

exists, we look to the “totality of the circumstances” in each case to see whether

                                          -6-
the officer had a “particularized and objective basis” for suspecting legal

wrongdoing. United States v. Arvizu, 534 U.S. 266, 273 (2002). No one piece of

evidence standing alone is dispositive. We consider all of the evidence together.

      In this case, a number of facts observed during the encounter triggered

Officer Bowles’s suspicion of drug trafficking: the heavy scent of air freshener in

the truck; the presence of only one small bag for a five-day cross-country road

trip; the use of an indirect route on I-70 instead of the more direct I-80 route; the

full gas can in the bed of the truck; and the wheel-well covers. Each of these

factors, taken alone, might not provide an officer with a reasonable suspicion of

criminal activity. But together, they suggest suspicious circumstances that

justified the officer prolonging the encounter long enough to resolve his concerns.

See United States v. White, 584 F.3d 935, 951–52 (10th Cir. 2009) (upholding a

determination of reasonable suspicion because of the defendant’s nervousness,

bizarre travel plans, and past record); United States v. Ledesma, 447 F.3d 1307,

1318 (10th Cir. 2006) (finding that the inconsistency between a small amount of

luggage and defendants’ stated travel plans is a factor in a reasonable suspicion

analysis); United States v. West, 219 F.3d 1171, 1178–79 (10th Cir. 2000)

(holding that the scent of air freshener is a proper factor in a reasonable suspicion

analysis).

      Even though Officer Bowles had sufficient reason to prolong the encounter

at that point, he developed further facts that contributed to the reasonable

                                          -7-
suspicion calculus. In particular, he noticed (1) the discrepancy between the

driver-side wheel-well cover and the passenger-side wheel-well cover, suggesting

the gas tank had been recently compromised, and (2) the underside of the gas tank

had been manipulated, suggesting it had recently been removed or altered. 1

      The district court correctly concluded that throughout “the entire encounter,

the officer was presented with more and more evidence to create reasonable

suspicion, and justify a brief additional detention to allow the officer to attempt to

allay his suspicions.” R., Vol. 1, Doc. 38 at 8. We agree with the district court

that by the time Officer Bowles asked Beltran-Diaz if he could take a closer look

at the truck, he had more than enough facts to justify the detention. Following

that closer look, the officer was further justified in detaining Beltran-Diaz long

enough to bring a Spanish-speaking officer to seek consent to search the gas tank.

       In sum, Officer Bowles had sufficient reasonable suspicion initially and

throughout the encounter to briefly detain Beltran-Diaz and complete his

investigation of the vehicle. Because we have concluded Officer Bowles had

reasonable suspicion to detain Beltran-Diaz, we need not address his argument



      1
         Beltran-Diaz contends that when the officer looked under the truck, he
conducted an illegal search. We disagree. The “undercarriage is part of the car’s
exterior, and as such, is not afforded a reasonable expectation of privacy.” United
States v. Rascon-Ortiz, 994 F.2d 749, 754 (10th Cir. 1993). Further, there is “no
legitimate expectation of privacy in a car’s interior if an officer looks through the
car’s window and observes contraband in plain view.” Id. Thus, no search
occurred when the officer observed the travel bag or gas can.

                                         -8-
that any consent he gave to search the interior of the gas tank was tainted by an

illegal search.

                                  IV. Conclusion

      The district court properly denied Beltran-Diaz’s Motion to Suppress, and

we AFFIRM that decision.

                                       ENTERED FOR THE COURT

                                       Timothy M. Tymkovich
                                       Circuit Judge




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