                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  May 21, 2009
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                               TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff–Appellee,
                                                       No. 08-3108
                                             (D.C. No. 2:07-CR-20035-CM-2)
 v.
                                                         (D. Kan.)
 LUIS DUENAS,

              Defendant–Appellant.


                          ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and MURPHY, Circuit Judges.


      Luis Duenas entered a plea of guilty to one count of possession with intent

to distribute more than 500 grams of methamphetamine mixture in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii) and 18 U.S.C. § 2. Duenas reserved the

right to appeal the denial of his motion to suppress, a challenge he now presents

to this court. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
                                         I

      On March 7, 2007, at approximately 5:15 p.m., Duenas was traveling

eastbound on Interstate 70 in Kansas in a rented white Ford Expedition. Kansas

Highway Patrol Trooper James W. Taylor was driving in his cruiser in the

opposite direction and clocked Duenas’ car traveling at 85 miles per hour in a 70

mile per hour zone. Taylor crossed the median, turned his cruiser to the east,

caught up to the Expedition, and stopped Duenas for speeding.

      Duenas was the driver and sole occupant of the Expedition. While Taylor

was explaining to Duenas why he had been stopped, Taylor noticed that Duenas

was breathing more heavily than normal, avoided eye contact, and his hands were

shaking. In Taylor’s view, Duenas was “very nervous over the stop”—much more

than Taylor usually encountered during traffic stops. Duenas denied traveling at

more than 70 miles per hour and claimed he was adjusting the cruise control at

the time of the encounter.

      On request, Duenas produced a valid California driver’s license and a

vehicle rental agreement dated March 5, 2007. The rental agreement was issued

by Enterprise Rent-A-Car in San Rafael, California, and was in the name of Luis

Alvarez, although it was signed “Luis Duenas.” It provided for a five-day rental

and specified that the Expedition could be driven in only two states—California

and Nevada. The word “California” was typed on the agreement whereas the

word “Nevada” was written in by hand.

                                        -2-
      On being asked where he had begun his trip, Duenas said he was coming

from California, had stopped in Las Vegas, and was going to Kansas because he

had family in the state and was planning to move there. When asked what part of

Kansas he was visiting, Duenas responded, “the main town.” Taylor then asked

why Duenas was driving in Kansas if the rental agreement limited use to

California and Nevada. Duenas claimed that Enterprise personnel knew he was

going to drive the car outside of those states and that he had been told it was okay

to do so. In Taylor’s view, “[t]he more I spoke with [Duenas], the more nervous

he got.”

      Taylor then took all documents to the patrol car, contacted dispatch, and

asked for a check of Duenas’ driver’s license and criminal history. He then called

the San Rafael Enterprise office and reached Anthony Clumeck, the individual

who rented the car to Duenas. Taylor explained that he had stopped Enterprise’s

vehicle in Kansas and asked if Duenas had authorization to drive the car outside

of California and Nevada. Clumeck answered that he did not, but declined to

have the vehicle seized because seizure would require sending someone to Kansas

to retrieve it. Taylor completed his call and then asked his dispatcher to send a

canine unit to the scene.

      Taylor walked back to Duenas’ vehicle, returned his paperwork, and issued

Duenas a warning. Taylor told Duenas, “Have a safe trip and drive safely,” and

took several steps back toward his cruiser. Approximately ten minutes had

                                        -3-
elapsed from the time when Taylor initially stopped the car to the time he

returned Duenas’ paperwork.

      After taking a few steps back toward his cruiser, however, Taylor stepped

back toward the Expedition and asked Duenas, “Hey Luis can I ask you a couple

of questions? Is it okay to visit with you for a minute? Can I talk to you for a

minute?” Duenas responded, “Sure.” Taylor told Duenas that he had called the

rental company and that Duenas was not allowed to drive the car in Kansas.

Duenas responded that, because he had unlimited mileage, he could drive it

anywhere. Taylor asked Duenas what he did for work, and Duenas replied that he

worked in construction and as a gardener, reiterating that he wished to move to

Kansas. Taylor then asked Duenas, “You’re not hauling anything illegal in this

vehicle, are you?—any guns, drugs, money, anything like that?” Duenas replied,

“No.” Taylor then asked, “Would you have a problem if I searched the vehicle?”

Duenas refused to consent, explaining that he knew his rights from a previous

encounter with law enforcement.

      Taylor then told Duenas that he thought there was something illegal in the

vehicle and that he did not believe Duenas’ travel plans. He asked Duenas to stay

in the vehicle with the windows rolled up until the canine unit arrived and then

Taylor returned to his patrol car. At this point, approximately three minutes had

elapsed from the time when Taylor returned Duenas’ paperwork.




                                        -4-
      Another three minutes later, Taylor returned to the Expedition, asked

Duenas to step out, and completed a pat down search. At the same time, the

canine unit arrived and the police dog promptly alerted to the presence of

narcotics near the left rear passenger door. Taylor then informed Duenas that he

was going to search the vehicle. Approximately two pounds of methamphetamine

were found, and Duenas was arrested.

      A grand jury later indicted Duenas on counts of (1) conspiracy to distribute

and possess with intent to distribute more than 500 grams of methamphetamine

mixture, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii) and 18 U.S.C.

§ 2; and (2) possession with intent to distribute more than 500 grams of

methamphetamine mixture, in violation of the same. After the district court

denied his motion to suppress, Duenas pleaded guilty to the second charge

pursuant to an agreement with the government in which he reserved the right to

appeal the denial of the motion. This appeal followed.

                                         II

      In reviewing the denial of a motion to suppress, the ultimate determination

of reasonableness under the Fourth Amendment is considered de novo. United

States v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004). We view the evidence in

the light most favorable to the government and accept the district court’s factual

findings unless they are clearly erroneous. United States v. McKissick, 204 F.3d

1282, 1296 (10th Cir. 2000). “[C]redibility of witnesses, . . . weight to be given

                                        -5-
evidence, and . . . reasonable inferences drawn from the evidence [all] fall within

the province of the district court.” Id. (quoting United States v. Long, 176 F.3d

1304, 1307 (10th Cir. 1999)).

      The Fourth Amendment protects against unreasonable searches and

seizures. U.S. Const. amend. IV. A traffic stop is a seizure within the meaning

of the Fourth Amendment, and is analyzed under the framework applicable to

investigative detentions. United States v. Wood, 106 F.3d 942, 945 (10th Cir.

1997). We first ask “whether the stop was justified at its inception” and if so, if

“the officer’s actions during the detention were reasonably related in scope to the

circumstances which justified the interference in the first place.” Id. (citing Terry

v. Ohio, 392 U.S. 1, 20 (1968)). Duenas neither contests the reasonableness of

the initial traffic stop nor the propriety of the exchange that took place after

Taylor issued the warning but before Taylor asked for permission to search the

vehicle. Moreover, he does not challenge the district court’s finding that the

canine’s alert provided probable cause to search the vehicle. Thus, the sole issue

for us to decide is: was there reasonable suspicion to continue to detain Duenas

after he refused Taylor’s request to search the car. We conclude that there was.

      “[O]nce an officer returns the driver’s license and vehicle registration and

issues a warning ticket, he must allow the driver to proceed without further

detention or questioning unless the officer has an objectively reasonable and

articulable suspicion that the driver is engaged in illegal activity.” United States

                                          -6-
v. Lyons, 510 F.3d 1225, 1237 (10th Cir. 2007). We look to the totality of the

circumstances in evaluating whether Taylor had an objectively reasonable basis to

prolong the detention after Duenas refused to consent to a search. Id. “This

process allows officers to draw on their own experience and specialized training

to make inferences from and deductions about the cumulative information

available to them that might well elude an untrained person.” United States v.

Santos, 403 F.3d 1120, 1134 (10th Cir. 2005) (quoting United States v. Arvizu,

534 U.S. 266, 273 (2002) (quotation omitted)). Applying these standards, we

must conclude that Taylor’s detention of Duenas was objectively reasonable.

      A combination of three factors drives our conclusion. 1 First, the rental

agreement prohibited Duenas from operating the vehicle outside California and

Nevada. The district court found that Duenas lied about his authority to operate

the car in Kansas. Based on our review of the record, we have no reason to

second-guess the district court’s findings on this issue. The rental agreement

plainly did not authorize travel in Kansas. This was confirmed when Taylor

spoke to the very agent at Enterprise who rented the car to Duenas. Duenas did

claim that he believed he had authority to drive the car in Kansas because of

unlimited mileage provisions. But given the clarity with which the rental

agreement speaks, we cannot say that the district court’s finding that Duenas lied

      1
        We do not consider Duenas’ refusal to consent in our analysis. As we
have stated elsewhere, “it should go without saying that consideration of such a
refusal would violate the Fourth Amendment.” Wood, 106 F.3d at 946.

                                        -7-
about his right to travel outside California and Nevada was clearly erroneous. Cf.

United States v. Edwards, 576 F.2d 1152, 1155 (5th Cir. 1978) (noting that

“exceeding the scope of the rental agreement would support a jury finding that

[the defendant] intended to steal the car”).

      Second, Duenas’ travel plans were implausible. Duenas told Taylor that he

was planning to move to Kansas, but Duenas was unable to name the town to

which he was moving, stating only that he was going to “the main town.” Were

Duenas truly moving to Kansas or even considering such a move, it is unlikely

that he would have rented a car without authority to travel in Kansas. These facts

justifiably raised Taylor’s suspicion and more than adequately support the district

court’s finding that Duenas’ travel plans were not believable. See Santos, 403

F.3d at 1129 (“Implausible travel plans can contribute to reasonable suspicion.”);

see also United States v. Kopp, 45 F.3d 1450, 1453-54 (10th Cir. 1995); United

States v. Sanchez-Valderuten, 11 F.3d 985, 989 (10th Cir. 1993).

      Third, Duenas appeared nervous throughout the encounter and, according to

Taylor, “[t]he more I spoke with [Duenas], the more nervous he got.” The district

court found that “Duenas acted extremely nervous, out of the ordinary

nervousness that [Taylor] sometimes encounters in making his traffic stops.”

This finding is supported by the record. We acknowledge that “nervousness is a

sufficiently common—indeed natural—reaction to confrontation with the police

that unless it is unusually severe or persistent, or accompanied by other, more

                                         -8-
probative, grounds for reasonable suspicion, it is ‘of limited significance in

determining whether reasonable suspicion exists.’” Santos, 403 F.3d at 1127

(quoting United States v. Williams, 271 F.3d 1262, 1268 (10th Cir. 2001)).

However, Duenas’ nervousness was accompanied by the foregoing circumstances.

We agree with the district court that, combined with these two additional factors,

the nervousness supported Taylor’s decision to detain Duenas until arrival of the

canine unit.

      Considering that Taylor was allowed “to draw on [his] own experience and

specialized training to make inferences from and deductions about the cumulative

information available to” him, we conclude that an objectively reasonable

suspicion that Duenas was involved in illegal activity properly arose in Taylor’s

mind. See id. at 1134. The district court’s factual findings were not clearly

erroneous, and Taylor’s decision to detain Duenas pending arrival of the canine

unit was reasonable. 2


      2
         Duenas relies heavily on our decision in Wood, 106 F.3d 942. In that
case, however, only two factors arguably supported reasonable suspicion: the
defendant’s nervousness and his prior narcotics history. Id. at 948. Wood’s
travel plans, unlike Duenas’ plans, were not “the sort of unusual plans which give
rise to reasonable suspicion of criminal activity,” because, among other things,
Wood had “authority to operate [his rental] car.” Id. at 947. Consistent with the
above analysis, we explained in Wood that both of the validly considered factors
were “of only limited significance in determining whether reasonable suspicion
existed,” id. at 948, particularly in light of the paucity of other articulable bases
to support the detention. Here, by contrast, we have two significant and probative
factors, in addition to Duenas’ nervousness, that justified the detention. Thus,
Duenas’ reliance on Wood is misplaced.

                                         -9-
             III

AFFIRMED.

                     ENTERED FOR THE COURT



                     Carlos F. Lucero
                     Circuit Judge




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