                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    June 8, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                       No. 08-4143
          v.                                                 (D. Utah)
 JOSE ALFREDO LOPEZ-GUTIERREZ,                   (D.C. No. 2:05-CR-00867-TS-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

I. Introduction

      Defendant-Appellant Jose Alfredo Lopez Gutierrez appeals his conviction

for Possession of Methamphetamine With Intent to Distribute in violation of 21


      *
        This order and judgment is not binding precedent except under the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.
U.S.C. § 841(a)(1). On appeal he argues the district court failed to suppress

evidence seized during a search of the car he was driving. Exercising jurisdiction

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm the district

court’s denial of the suppression motion because the police had reasonable

suspicion to temporarily detain Lopez while a dog sniff was conducted, and had

probable cause to search the vehicle when the dog alerted to drugs.

II. Background

      Lopez was pulled over in Cedar City, Utah, for tailgating, making an

improper lane change, and possessing tinted windows darker than allowable under

state law. A female passenger was riding in the vehicle. When the officer

approached and looked inside the vehicle, he immediately noticed scarring on the

seat belt bolts and a reattached airbag compartment in the dashboard. Based on

his training, the officer considered both of these alterations to the vehicle’s

interior to be indicative of hiding places for contraband. The officer also

observed one picture of Jesus Malverde affixed to the dashboard and another

hanging from Lopez’s necklace. The officer recognized the images of Jesus

Malverde, who is considered a patron saint by some drug traffickers. The officer

observed an air freshener, which he thought might be used to mask the smell of

drugs, as well as a rose on the dashboard, which he characterized as a

“distraction.” Finally, the officer observed three cell phones in the vehicle’s

center console. He believed, based on his training and experience, that

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individuals engaged in criminal activity often carried extra cell phones to have

multiple lines of communication available. Lopez told the officer he and the

passenger were returning to Kansas after spending “about a week” in Las Vegas

on vacation. The officer observed only one small suitcase in the vehicle,

however, which in his view was less luggage than would be expected for a trip of

that duration.

      The officer asked Lopez to return with him to the patrol vehicle to receive a

written warning. When Lopez got out of his car, instead of following the officer

to the patrol vehicle, he assumed a position to be frisked for weapons. The

officer told him a frisk was not necessary and motioned him to sit in the patrol

car. Once in the patrol car, while the officer was writing out the warning, he

asked additional questions about Lopez’s travels. Lopez changed his account

about the duration of the trip, now saying it had been three or four days. Lopez

also, without prompting, told the officer a friend had taken the vehicle overnight

while Lopez was in Las Vegas. The officer testified this spontaneous statement

was suspicious and interpreted it as an attempt by Lopez to distance himself from

any contraband that might be found in the vehicle.

      Prior to giving Lopez the written warning he had been preparing, the

officer asked Lopez if there was anything illegal in the vehicle. Lopez said no.

The officer then asked if he could search the vehicle, and Lopez said yes. The

officer then returned to Lopez’s vehicle and briefly questioned the female

                                         -3-
passenger. She said the two had been staying in a motel, which contradicted

Lopez’s account of them staying with a friend. The officer then deployed his

certified drug sniffing dog, Gino, for a sweep around the exterior of the vehicle.

Gino alerted to the rear of the vehicle, so the officer opened the rear cargo door

and deployed Gino inside the vehicle. The dog then indicated at the area between

the second and third rows of seats. The officer searched that area by hand and

discovered 6.73 pounds of methamphetamine hidden inside one of the rear seats.

      At trial, Lopez attempted to suppress the methamphetamine, arguing the

search was conducted without probable cause or valid consent. The district court

rejected the suppression request, ruling Lopez did not have a legitimate

possessory interest in the vehicle to assert a Fourth Amendment violation, 1 and

even if he did, the officer had both probable cause to search the vehicle and valid

consent. Lopez pleaded guilty, and now appeals.

III. Discussion

      A district court’s decision on a motion to suppress evidence is reviewed de

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

factual findings underlying its decision, however, are reviewed for clear error. Id.




      1
      The vehicle’s expired registration was in the name of a third party, and
Lopez was unable to provide the officer with the owner’s full name or telephone
number. There was, however, an expired insurance card indicating the vehicle
had been insured by Lopez.

                                         -4-
      Lopez does not contend his initial traffic stop was invalid. Rather, he

argues the government unlawfully prolonged the traffic stop and searched the

interior of his vehicle without valid consent. The police may search the interior

of a vehicle if there is probable cause that there is contraband inside the vehicle.

See United States v. Vazquez, 555 F.3d 923, 929 (10th Cir. 2009). An alert by a

certified drug-sniffing dog during a sweep of the exterior of the vehicle can give

probable cause to search the interior. Id. at 929-30; United States v. Clarkson,

551 F.3d 1196, 1203 (10th Cir. 2009).

      Here, Gino’s alert, along with the other information known to the officer at

the time, created probable cause to search the interior of the vehicle. The only

issue is whether Lopez was being lawfully detained when the sweep with Gino

commenced. A traffic stop may be extended if the officer has reasonable

articulable suspicion of criminal activity. Vazquez, 555 F.3d at 929. Reasonable

suspicion is a “particularized and objective basis for suspecting the person

stopped of criminal activity.” United States v. Alcaraz-Arellano, 441 F.3d 1252,

1259 (10th Cir. 2006) (quotation omitted). “It represents a minimum level of

objective justification which is considerably less than proof of wrongdoing by a

preponderance of the evidence.” Id. at 1260 (quotations omitted). This court

“accords appropriate deference to the ability of a trained law enforcement officer

to distinguish between innocent and suspicious actions.” Clarkson, 551 F.3d at




                                          -5-
1201 (quotation omitted). Reasonable suspicion is determined based on the

totality of the circumstances present. Id.

      The record indicates the traffic stop became prolonged, at the earliest, when

the officer began asking additional questions while sitting in the patrol car with

Lopez. 2 At that point, the officer had ample reason to be suspicious of possible

drug trafficking. There were multiple signs of hidden compartments in the

interior of the vehicle. There was an air freshener and a rose in the car, which the

officer suspected were devices to mask the scent of drugs. There were more cell

phones in the car than passengers. There were multiple images of Jesus

Malverde, considered by some to be a patron saint of drug traffickers. Lopez and

his companion had less luggage than would be expected for a week-long vacation.

Finally, Lopez automatically assumed a position to be frisked for weapons

without being asked to do so. These factors taken together, particularly the

evidence of the hidden compartments, gave rise to a reasonable suspicion that

Lopez may have been engaged in drug trafficking. The police officer was

therefore justified in prolonging the length of the traffic stop.

      2
        The record is unclear as to when the officer completed filling out the
warning while he was questioning Lopez in the patrol vehicle. Once the written
warning was completed, the officer’s refusal to give Lopez the warning meant
Lopez was not free to terminate the encounter and thus was still being detained
beyond the original purpose of the traffic stop, which required reasonable
suspicion of some criminal activity. It is unnecessary to determine the precise
point during the questioning when the stop became prolonged, however, because
the officer had reasonable suspicion to prolong the stop before the questioning
began.

                                          -6-
      The police officer’s questioning prior to the deployment of the drug-

sniffing dog only served to heighten his suspicions and further justify the

detention. Lopez gave an inconsistent statement about the length of his stay in

Las Vegas and spontaneously told the officer that the vehicle had been in his

friend’s possession overnight. The passenger in the car told the officer they had

stayed in a motel, not in a friend’s house as Lopez had indicated. These

inconsistencies gave the officer justification to prolong the traffic stop further and

deploy Gino. Therefore, the detention was lawful at the time Gino alerted to

drugs inside the vehicle. 3

IV. Conclusion

      The district court correctly denied Lopez’s motion to suppress because the

police had probable cause to conduct the search following a lawful detention.

Therefore, the district court’s decision is affirmed.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge



      3
        The government contends, and the district court ruled, that Lopez did not
demonstrate a possessory interest in the vehicle sufficient to permit him to assert
a Fourth Amendment violation. It is unnecessary to reach this issue on account of
the officer having probable cause to search the vehicle. Likewise, it is
unnecessary to address the government’s other contention that Lopez gave valid
consent to search the vehicle, because the search was lawful even in the absence
of consent.

                                          -7-
