                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      October 29, 2010
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                      TENTH CIRCUIT


 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                              No. 09-2269
                                                        (D. C. No. CR-07-2236)
 v.
                                                       (District of New Mexico)
 VICENTE MONTES,

           Defendant - Appellant.


                                   ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, and HOLLOWAY, Circuit Judge, and MELGREN,
District Judge.**


       Defendant-appellant, Vicente Montes, appeals his conviction and sentence from

the United States District Court for the District of New Mexico. The district court had

jurisdiction of the matter pursuant to 18 U.S.C. § 3231. We have jurisdiction over this

appeal pursuant to 28 U.S.C. § 1291.




       *
        This order and judgment is not binding precedent, except under the doctrines of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.
       **
        The Honorable Eric F. Melgren, United States District Judge for the District of
Kansas, sitting by designation.
                                   I. BACKGROUND

       On July 30, 2007, at about 12:50 a.m., Vicente Montes was driving in

Albuquerque with his girlfriend, Lorissa Quintana. Sheriff’s Deputies Elder Guevara and

Larry Harlan were sitting in their respective patrol cars talking to each other through open

windows when they observed Montes’ vehicle turn left on a red light. Deputy Guevara

followed Montes’ vehicle and signaled for Montes to pull over. Deputy Harlan followed

Deputy Guevara’s vehicle and pulled over on the opposite side of the road from Deputy

Guevara.

       After Montes pulled over, Deputy Guevara walked over to the passenger side of

Montes’ vehicle. Deputy Harlan stood by the driver’s side of Montes’ vehicle. Deputy

Guevara asked Montes for his license, registration, and proof of insurance. Montes told

Deputy Guevara that he did not have his registration or proof of insurance. Montes did

have his license, which he handed to Deputy Guevara. Montes’ hand shook “quite a bit”

when he handed Deputy Guevara his license. Supp. R. Vol. 2 at 13. Deputy Guevara

asked Montes a few questions about where he was traveling from and where he was

going. Montes stuttered and looked at the ground when he responded. Deputy Harlan

noticed that Montes was sweating from the side of his head and from his forehead.

       Deputy Guevara and Deputy Harlan then returned to Deputy Guevara’s vehicle.

Deputy Guevara entered Montes’ license plate number into his computer, which verified

that Montes owned the vehicle he was driving. Deputy Guevara also verified that

Montes’ driver’s license was valid and that there were no warrants outstanding for his

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arrest. While Deputies Guevara and Harlan were verifying Montes’ information, Deputy

Harlan saw Montes looking at the deputies through his mirror and then leaning forward.

Both deputies observed Montes’ left shoulder “dip” forward, as though he were hiding or

retrieving something under his seat. The dip was “very pronounced” and the “whole front

of his body… moved towards the steering wheel.” Id. at 16.

       After observing Montes’ shoulder dip, Deputy Guevara testified that he then

became concerned for his and Deputy Harlan’s safety. Deputy Guevara told Deputy

Harlan he was going to “pull” Montes out of the vehicle. Id. at 76. Deputy Guevara

returned to Montes’ car and asked, “[h]ey, what are you hiding?” Id. at 17. Deputy

Guevara asked Montes twice whether he could search Montes’ vehicle. Deputy Guevara

then asked Montes to step out of his vehicle. The parties dispute whether or not Montes

consented to a search of his vehicle. After Deputy Guevara asked Montes to step out of

his vehicle, Montes complied, and left the driver’s side door of his car open when he got

out of his car. Deputy Guevara then indicated to Deputy Harlan that they had consent to

search Montes’ vehicle. Montes and Deputy Guevara walked to the rear of Montes’

vehicle where Deputy Guevara did a pat-down of Montes and did not find any weapons.

Deputy Guevara then asked Montes to sit on the hood of his patrol car.

       Meanwhile, Deputy Harlan walked around the front of Montes’ car and saw that

the driver’s side door was open. He shined his flashlight inside the open door towards the

front seat and testified that “looking at the driver’s seat, I could see what appeared to be

the grip of a handgun sticking out from underneath the seat.” Id. at 69. Deputy Harlan

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then gave Deputy Guevara a visual cue that Deputy Guevara needed to secure Montes.

Deputy Harlan told Deputy Guevara “10-80,” meaning that he had found a weapon or gun

in the vehicle. Id. at 21, 70.

        Deputy Guevara placed Montes in handcuffs and read him his Miranda rights.

Deputy Guevara then asked Montes, “[a]re you a convicted felon?” Id. at 23. Montes

responded that he was a convicted felon and had served ten years in prison. Montes

acknowledged that the gun belonged to him. Deputy Guevara then placed Montes under

arrest. Deputy Harlan then retrieved the gun from the car. Both deputies testified that the

length of time between when Montes’ vehicle was pulled over and when he was arrested

was less than five minutes.

        A federal grand jury indicted Montes on one count of being a felon in possession

of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Montes filed a motion

to suppress the evidence obtained after his initial stop for the traffic violation. The

district court denied Montes’ motion. Montes pled guilty to the indictment pursuant to a

plea agreement, but reserved his right to appeal the district court’s order denying his

motion to suppress. Montes was then sentenced to 188 months in prison followed by

three years of supervised release. The district court entered its judgment on October 15,

2009.




                                       II. ANALYSIS


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       On this appeal, Montes argues that the district court erred in holding that his

prolonged detention was justified based solely on his nervousness and shoulder “dip.”

Montes further argues that the district court erred in applying the plain view exception to

the handgun seized because the district court did not make an explicit finding that

Montes’ consent to search his car was validly given. We will address each of these

arguments in turn.


       A.     The District Court Did not Err in Concluding that the Prolonged
              Detention and Questioning of Montes were Justified by Reasonable
              Officer Safety Concerns
       The Fourth Amendment prohibition against unreasonable searches and seizures

applies to traffic stops. A traffic stop constitutes a seizure and must be both justified at its

inception and reasonably limited in scope. United States v. Rice, 483 F.3d 1079, 1082

(10th Cir. 2007) (citing United States v. Holt, 264 F.3d 1215, 1220 (10th Cir. 2001)). A

justifiable stop must not exceed the reasonable duration required to complete the purpose

of the stop. Id. (citing United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir. 2007)).

An officer must allow the driver to continue on his way without further questioning so

long as the driver has provided a valid license and proof of his right to operate the

vehicle. United States v. Zabalza, 346 F.3d 1255, 1259 (10th Cir. 2003) (citation

omitted). Law enforcement officers may not extend a traffic stop beyond the reasonable

time necessary to accomplish the purpose of the stop unless the officers have reasonable

suspicion of other criminal activity, or the driver consents. Rice, 483 F.3d at 1083-84

(citing United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006)). The

                                              -5-
required reasonable suspicion “is based upon the totality of the circumstances, taking into

account an officer’s reasonable inferences based on training, experience, and common

sense.” Id. at 1083 (citing United States v. Arvizu, 534 U.S. 266, 273 (2002)). Inchoate

suspicions and unparticularized hunches do not provide reasonable suspicion. United

States v. Fernandez, 18 F.3d 874, 878 (10th Cir. 1994) (citing United States v. Sokolow,

490 U.S. 1, 7 (1989), Terry v. Ohio, 392 U.S. 1, 27 (1968)). When reviewing a district

court’s decision on a motion to suppress, we “accept the district court’s factual findings

unless they are clearly erroneous.” Rice, 483 F.3d at 1082 (quoting Alcaraz-Arellano,

441 F.3d at 1258). We review de novo the reasonableness of a search or seizure under

the Fourth Amendment. United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir. 2009)

(citing United States v. Lyons, 510 F.3d 1225, 1234 (10th Cir. 2007)).

       As the district court held, the initial stop of Montes’ vehicle was justified at its

inception because Deputy Guevara stopped Montes for turning left on a red light. Order

Den. Def.’s Mot. to Suppress 2-3, March 16, 2009, ECF. No. 64 (“Order”). The district

court further held that Montes’ prolonged detention was justified by Deputy Guevara’s

reasonable concern for officer safety based on the totality of the circumstances. Id. at 4.

Montes does not challenge the constitutionality of the initial traffic stop, the nature or

extent of the prolonged detention, or the underlying factual findings by the district court.

Rather, Montes argues that the two grounds giving rise to the officers’ safety concerns,

nervousness and a “shoulder dip,” without more, are insufficient to provide a reasonably

articulable suspicion of criminal activity as a matter of law.

                                             -6-
       Montes argues that nervousness, on its own, is insufficient to provide a reasonable

suspicion, and the addition of a “shoulder dip” similarly falls short of generating a

reasonable suspicion under the totality of the circumstances in the instant case.

Appellant’s Br. 12 (citing United States v. Hall, 978 F.2d 616, 622 (10th Cir. 1992)).

Montes argues that leaning or reaching motions by the driver of a vehicle in a traffic stop

should be interpreted with caution because “such movements may be consistent with ‘a

perfectly lawful action that is to be expected when one is pulled over by the police,’ such

as reaching for or replacing a wallet or identification.” Id. (quoting United States v.

McKoy, 428 F.3d 38, 40 (1st Cir. 2005)). Rather, in cases where courts have found

leaning or reaching movements to support a reasonable suspicion, Montes argues that it is

the other circumstances, such as “informants’ tips, a high crime location, or the officers’

personal knowledge of the defendant,” that support an inference that the defendant is

armed or a danger to officer safety. Id. at 13. Montes points out that those accompanying

circumstances are lacking in the instant case because there is no evidence that his traffic

stop took place in a high-crime area, Montes pulled over without delay when Deputy

Guevara signaled for him to do so, Montes’ car was properly registered under his name,

there were no outstanding warrants for his arrest, and there were no other indications that

he was or was known to be armed or dangerous.

       Montes’ argument, however, is unpersuasive for two reasons. First, the

reasonableness of an officer’s suspicions is analyzed under the totality of the

circumstances rather than circumstance-by-circumstance. In this case, the traffic stop

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occurred late at night. When Deputy Guevara first questioned Montes about his travel

plans and requested his license and registration, both deputies noticed that Montes was

uncommonly nervous. Montes’ hands shook as he handed Deputy Guevara his license.

He stuttered and avoided eye contact with Deputy Guevara when Deputy Guevara asked

him routine traffic stop questions. Deputy Harlan noticed that Montes was sweating

profusely. After Deputies Guevara and Harlan returned to Deputy Guevara’s vehicle to

verify Montes’ information, Deputy Harlan observed Montes watching them through his

rearview mirror just before he leaned forward. Furthermore, Montes’ shoulder “dip” was

described by both deputies as atypical for traffic stops. Deputy Guevara testified that,

“[n]ormally when somebody is driving, it’s normal for people to like reach within the car.

But for [Montes’] left shoulder to actually dip, that’s not common practice when I do

traffic stops.” Supp. R. Vol. 2 at 16. Deputy Harlan similarly testified that Montes’

shoulder dip was “not a normal action that we observe on traffic stops.” Id. at 76. Given

the unusual nature of Montes’ movements and the officers’ inferences, based on their

experience and training, that their safety could be in danger, we find that under the

totality of the circumstances, the officers’ safety concerns were reasonable.

       Second, the deputies’ return to Montes’ vehicle following Montes’ shoulder dip

was reasonable. “While a traffic stop is ongoing . . . an officer has wide discretion to take

reasonable precautions to protect his safety.” Rice, 483 F.3d at 1084 (citing Holt, 264

F.3d at 1221-23). “Since police officers should not be required to take unnecessary risks

in performing their duties, they are ‘authorized to take such steps as [are] reasonably

                                            -8-
necessary to protect their personal safety and to maintain the status quo during the course

of [a Terry] stop.’” United States v. Shareef, 100 F.3d 1491, 1502 (10th Cir. 1996)

(quoting United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993)). In determining

whether police conduct during an investigatory stop is reasonable, a court “should take

care to consider whether police are acting in a swiftly developing situation, and in such

cases the court should not indulge in unrealistic second-guessing.” Id. at 1505 (citing

United States v. Sharpe, 470 U.S. 675, 686 (1985)). In this case, Deputies Harlan and

Guevara were acting in response to a perceived threat to their safety. They returned to

Montes’ vehicle in order to maintain the status quo and to protect their safety. As the

district court found significant, “Deputy Guevara testified, ‘I felt that [Montes] might be

concealing either a handgun or something, so for my safety I reapproached the vehicle.’”

Order 4. Under these circumstances, we decline to hold that the deputies’ safety concerns

were unreasonable or that their return to Montes’ vehicle was unreasonable because of the

lack of circumstances that Montes has cited.

       Both deputies testified that the length of the detention between Montes’ being

pulled over until he was arrested was less than five minutes. Given the short duration of

the stop and the circumstances as reviewed above, we hold that the prolonged detention

of Montes was not unreasonable.


       B.     The District Court Did not Err in Applying the Plain View Exception to
              the Seizure of the Handgun in Montes’ Vehicle




                                            -9-
       The plain view exception permits a law enforcement officer to seize evidence

without a warrant if: “(1) the officer was lawfully in a position from which to view the

object seized in plain view; (2) the object’s incriminating character was immediately

apparent—i.e., the officer had probable cause to believe the object was contraband or

evidence of a crime; and (3) the officer had a lawful right of access to the object itself.”

United States v. Sparks, 291 F.3d 683, 690 (10th Cir. 2002) (quoting United States v.

Carey, 172 F.3d 1268, 1272 (10th Cir. 1999)).

       The district court applied the plain view exception to Deputy Harlan’s warrantless

seizure of Montes’ handgun. Deputy Harlan saw Montes’ handgun in plain view under

Montes’ seat after Montes exited his vehicle, leaving the driver’s side door of his car

open. Montes argues that the only reason the deputies had for asking him to exit his

vehicle was his purported consent to search the vehicle. Thus, Montes contends that the

district court erred by applying the plain view exception to Deputy Harlan’s seizure of his

handgun without making an explicit finding that Montes’ consent was validly given.1

Without his valid consent, Montes argues that Deputy Harlan was not lawfully in a place

from which to view the handgun, as required by the first prong of the plain view

exception. In response, the government argues that the deputies did not need Montes’

consent to ask him to exit his vehicle because they were authorized to do so out of a


       1
          The government concedes Montes’ second claim of error, that to the extent the district
court found that Montes exited his vehicle and then gave his consent, those events happened in
the opposite order. Appellee Br. 17 n.9. However, because we hold that the deputies did not
need Montes’ consent to ask him to step out of his vehicle, to the extent the district court erred in
the ordering of Montes’ consent and his exiting his vehicle, such error was harmless.

                                               - 10 -
concern for their safety, regardless of Montes’ consent. Appellee Br. 17. Montes objects

to the government’s officer safety argument as one forfeited because it is raised for the

first time on appeal. We disagree that the government’s argument was forfeited.

Although the argument was not artfully stated, we find that it was sufficiently raised

below.

         The district court’s order denying Montes’ motion to suppress tied much of its

reasoning to the officers’ safety concerns. Although the government did not raise the

issue of officer safety in its response to Montes’ motion to suppress (Response to Def.’s

Mot. to Suppress 7-8 Oct. 23, 2008, ECF No. 39), the government did raise the issue in its

supplemental brief following the evidentiary hearing on Montes’ motion. United States’

Supp. Resp. to Def.’s Mot. to Suppress 4 Jan. 27, 2009, ECF No. 57. When the district

court issued its order denying Montes’ motion to suppress, it found that officer safety

concerns motivated the deputies’ prolonged detention of Montes. This detention included

the deputies’ return to Montes’ vehicle, asking Montes to step out of his vehicle,

conducting a Terry pat-down of Montes, and then asking Montes to sit on the hood of

Deputy Guevara’s patrol car. Order 2, 4. Montes does not argue that the district court’s

factual findings on the officer safety concerns were erroneous, and our review of the

deputies’ testimony at the evidentiary hearing support the district court’s findings.

Therefore, we will consider the government’s argument.

         On the merits, we agree with the government that Deputy Guevara was authorized

to ask Montes to exit his vehicle out of a concern for both his and Deputy Harlan’s safety.

                                            - 11 -
It is well-established that during a routine traffic stop, an officer has the discretion to

“order the driver and passengers out of the vehicle in the interest of officer safety, even in

the absence of any particularized suspicion of personal danger.” Holt, 264 F.3d at 1222

(citing Maryland v. Wilson, 519 U.S. 408, 415 (1997), Pennsylvania v. Mimms, 434 U.S.

106, 111 (1977) (per curiam)); see also New York v. Class, 475 U.S. 106, 115-116 (1986)

(citing Mimms, 434 U.S. at 108-111). The district court found that Deputy Guevara asked

Montes to step out of his vehicle out of a concern for his safety. Order 2. Similarly,

Deputy Harlan testified that before he and Deputy Guevara reapproached Montes’

vehicle, Deputy Guevara told him that he was going to pull Montes out from his vehicle.

In view of the district court’s findings of fact and the record on appeal, Deputy Guevara

was thus authorized to ask Montes to step out of the car because of his safety concerns.

       Because Deputy Guevara acted within his authority when he asked Montes to step

out of his car, the district court did not commit reversible error in neglecting to explicitly

find that Montes validly consented to the search of his vehicle. Montes left his door open

when he was asked to exit his vehicle, leaving the grip of his handgun in plain view.

Deputy Harlan was therefore lawfully in a place from which he could see the grip of the

handgun under Montes’ seat, and he did not violate the Fourth Amendment in arriving at

that place. Thus, the district court did not err in applying the plain view exception to

Deputy Harlan’s seizure of the handgun.




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                                III. CONCLUSION


      Accordingly, we AFFIRM the district court’s denial of Montes’ motion to suppress

evidence.


                                                           Entered for the Court


                                                           William J. Holloway, Jr.
                                                           Circuit Judge




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