                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                              AUGUST 5, 2009
                               No. 08-17030                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                       D. C. Docket No. 06-00313-CR-4

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

OTIS LORENZO SALLEY,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                               (August 5, 2009)

Before BARKETT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

     Defendant Otis Lorenzo Salley (“Salley”) appeals the denial of his motion to
suppress evidence—specifically, over two kilograms of cocaine—seized from his

vehicle following a traffic stop on August 1, 2006. Following the denial of his

motion to suppress, Salley entered a guilty plea—conditioned on his ability to

appeal the denial of his motion to suppress—to the charge of possession with intent

to distribute 500 grams or more of cocaine hydrochloride, in violation of 21 U.S.C.

§ 841(a)(1). He was sentenced to 76 months in prison. On appeal, Salley argues

that the evidence was obtained in violation of his Fourth Amendment right to be

free from unreasonable searches and seizures. See U.S. Const. amend. IV. After

review, we affirm.

                               I. Factual Background

      The magistrate judge conducted an evidentiary hearing and prepared a report

and recommendation (“report”), recommending denial of Salley’s motion to

suppress. In the report, the magistrate judge found these facts, which the testimony

in the hearing transcript supports.

      At 11:52 p.m., on August 1, 2006, Lieutenant David Blige (“Officer Blige”)

of the Bryan County, Georgia Sheriff’s Department stopped Salley’s gold Chrysler

300 because the vehicle failed to remain in its lane and “weaved across the

dividing line several times.” Officer Blige asked Salley (the sole occupant) to get

out of the car and to provide his driver’s license and registration. Officer Blige



                                           2
detected the strong odor of marijuana and asked Salley whether he was smoking

marijuana. Blige testified that Salley seemed “nervous,” was “sweating,” and did

not respond immediately when Blige asked him for his license and registration.

Blige had to ask again for the paperwork. Salley produced the license and

registration and denied the accusation of marijuana use.

       After issuing a “verbal warning” for Salley’s improper lane usage, Officer

Blige asked Salley whether he would consent to a brief air scan by a drug dog.1

Blige testified that he requested the air scan because he detected the strong scent of

marijuana on Salley’s person. The magistrate judge found that Salley consented to

this procedure.

       Corporal John Meachum (“Meachum”) arrived on the scene within eight or

nine minutes after Officer Blige initially stopped Salley’s vehicle and two to three

minutes after Salley consented to the air scan by the drug dog. Meachum had a

drug dog in his vehicle. The dog performed the air scan and signaled that narcotics

were present. A subsequent search of the vehicle revealed that a red cooler in the

trunk of Salley’s car contained over two kilograms of cocaine.

       Salley moved to suppress the evidence of cocaine. He argued that Officer

Blige lacked “reasonable suspicion” to detain him for the two to three minutes it


       1
       An “air scan,” as the parties use the phrase, appears to be nothing more than directing a
drug dog to determine whether the scent of narcotics is present in a particular area.

                                                3
took for the drug dog to arrive. The magistrate judge’s report recommended that

the motion to suppress be denied because the strong odor of marijuana, combined

with Salley’s nervous disposition and failure to immediately respond to Blige’s

request for license and registration, provided reasonable suspicion that warranted

the additional detention and air scan by the drug dog. The district court adopted

the report in full and denied Salley’s motion to suppress. Salley now appeals.

                                    II. Discussion

      Salley does not contest that Officer Blige had “probable cause” to stop his

vehicle based on his suspicion that Salley had violated traffic laws. See Whren v.

United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772 (1996) (“As a general

matter, the decision to stop an automobile is reasonable where the police have

probable cause to believe that a traffic violation has occurred.”). Rather, Salley

argues that Blige lacked “reasonable suspicion” to detain him for any additional

time after Blige issued the verbal warning. Specifically, Salley argues that Blige

impermissibly detained him during the two to three minutes while the drug dog

arrived and performed the air scan. Salley argues that: (1) the government offered

no evidence that he actually possessed or was using marijuana, and (2) the absence

of evidence that he actually used or possessed marijuana, combined with Blige’s

lack of credibility, means that “[j]ustice would not be served in allowing this



                                           4
testimony to stand.”

       The government argues that, in addition to the strong smell of marijuana,

Salley seemed “nervous” and “sweaty” and did not immediately respond to Blige’s

questions. Therefore, Blige’s decision to detain Salley for a few extra moments

was supported by “reasonable suspicion.”

       When reviewing a district court’s denial of a motion to suppress, we review

the fact-findings for clear error and the application of law to fact de novo. United

States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007). We construe all facts in

the light most favorable to the prevailing party—in this case, the government. Id.

at 1236.

       “[W]e have consistently held that once an officer has briefly stopped a motor

vehicle operator for the purpose of issuing a traffic violation (i.e., a ticket), the

officer’s continuing detention of the vehicle’s occupants is authorized under the

Fourth Amendment only if the officer can point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant

the intrusion.” United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999)

(citation and quotation marks omitted). Therefore, the issue on appeal is whether

the record, construed in the light most favorable to the government, supports the

district court’s conclusion that “reasonable suspicion” warranted the added



                                             5
intrusion—in this case the slightly prolonged detention after the verbal warning.

See United States v. Griffin, 109 F.3d 706, 707-08 (11th Cir. 1997). “When

making a determination of reasonable suspicion, we must look at the totality of the

circumstances of each case to see whether the detaining officer has a particularized

and objective basis for suspecting legal wrongdoing.” United States v. Perkins,

348 F.3d 965, 970 (11th Cir. 2003) (quotation marks and citations omitted).

       Based on the totality of the circumstances, we cannot say that there is

reversible error in the district court’s denial of Salley’s motion to suppress. First,

Eleventh Circuit case law supports the district court’s legal conclusions. This

Court has found reasonable suspicion to support further detention based on, among

other things, the “strong odor of marijuana.” See Griffin, 109 F.3d at 708 (noting

that odor of marijuana detected during traffic stop furnished reasonable suspicion

justifying further detention and investigation of suspect).2 And Salley does not cite

any authority challenging the proposition that the strong scent of marijuana

furnishes “reasonable suspicion” for continued detention. For example, Salley

cites Perkins. 348 F.3d at 970. But Perkins says nothing about whether the smell




       2
         This Court has also found that the smell of marijuana has satisfied the higher “probable
cause” standard. See United States v. Lueck, 678 F.2d 895, 903 (11th Cir. 1982) (noting that it
is “clearly established that the recognizable smell of marijuana gives rise to probable cause
supporting a warrantless search”).

                                                6
of marijuana provides “reasonable suspicion.”3

       Officer Blige’s testimony that Salley seemed “nervous” and “sweaty” and

that he failed to immediately respond to his questions would on its own be

insufficient to support the additional detention and air scan. See Perkins, 348 F.3d

at 971 (“In this Circuit, we have required more than the innocuous characteristics

of nervousness, a habit of repeating questions, and an out-of-state license for

giving rise to reasonable suspicion.”). However, the record evidence here—that

Blige smelled the strong odor of marijuana, combined with those

factors—adequately supports the district court’s conclusion that Blige had

“reasonable suspicion” to warrant the additional detention and the air scan. See

Griffin, 109 F.3d at 707-08.

       Salley also implies that Officer Blige’s testimony about whether he actually

detected the scent of marijuana is not to be believed. But, on this record, we find

no clear error in the magistrate judge’s fact-finding, adopted by the district court,

that Blige smelled the strong odor of marijuana on Salley’s person. The magistrate

judge’s finding was based on Blige’s in-court testimony, where the magistrate

       3
        In Perkins, the “Government argue[d] that the totality of the following circumstances
gave rise to a reasonable suspicion of drug trafficking: (1) Perkins’ nervousness; (2) the ‘odd
behavior’ of Perkins in repeating the questions Colston asked him; (3) Perkins’ possession of a
Florida driver's license while claiming to live in Montgomery, Alabama; and (4) the
‘inconsistent’ statements from Perkins and Scott with regard to whom they were going to see in
Greenville, Alabama.” 348 F.3d at 970. None of these justifications had anything to do with the
smell of marijuana.

                                               7
judge had an opportunity to make a credibility determination and to gauge Blige’s

answers to what appears to have been a rigorous cross-examination conducted by

Salley’s counsel. See United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th

Cir. 2002) (“Credibility determinations are typically the province of the fact finder

because the fact finder personally observes the testimony and is thus in a better

position than a reviewing court to assess the credibility of witnesses.”); United

States v. Holland, 874 F.2d 1470, 1473 (11th Cir. 1989) (“Credibility

determinations made by the district court are entitled to deference by a reviewing

court.”). Therefore, the district court’s fact-findings are not clearly erroneous.4

       After review, we affirm the district court’s denial of Salley’s motion to

suppress.

       AFFIRMED.




       4
         On appeal, Salley points out that after issuing the ticket, Officer Blige first said that
Salley was free to go. Blige’s testimony was contradictory in this respect. On the one hand
Blige testified that he told Salley that he was free to go. At another point during the hearing, he
claims to have never made such a statement. But it does not appear that Salley raised the issue
of Officer Blige’s truthfulness with respect to whether Blige detected the strong odor of
marijuana either before the magistrate judge or in his objections to the report. Rather, Salley
argued that the absence of actual marijuana meant that Blige lacked “reasonable suspicion.” In
any event, to the extent Salley claims that Blige’s testimony lacked credibility as to the odor of
marijuana, we note that whether Blige’s testimony was credible was a decision for the fact-
finder. See, e.g., United States v. Beckles, 565 F.3d 832, 840 (11th Cir. 2009) (noting that, even
in the face of contradictory testimony, a district court’s credibility determination in favor of the
contradicting party was “not clearly erroneous”); United States v. Ramirez-Chilel, 289 F.3d 744,
749 (11th Cir. 2002).

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