     Case: 18-30861      Document: 00515068580         Page: 1    Date Filed: 08/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                      No. 18-30861                          FILED
                                                                       August 8, 2019

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
              Plaintiff–Appellee,

v.

RONALD THOMPSON, JR.,

              Defendant–Appellant.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:17-CR-225-1


Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
PER CURIAM:*
       Ronald Thompson, Jr., appeals his conviction under 21 U.S.C. § 841(a)(1)
and (b)(1)(C) of possession with intent to distribute cocaine, possession with
intent to distribute cocaine base, and possession with intent to distribute
heroin. He contends that the district court erred in denying his motion to
suppress evidence obtained following a traffic stop. We affirm the district
court’s judgment.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-30861

                                        I
      On July 27, 2017, investigators were conducting surveillance at a
convenience store in an area known for illegal drug activity. At approximately
4:15 p.m., Detective Jason Tiliakos observed a black Infiniti pull into the
parking lot. According to the incident report, the investigators had received
an anonymous tip approximately five months earlier, in February 2017, that
Thompson conducted drug sales from a black Infiniti. After a short time,
Detective Tiliakos observed a man, later identified as Thompson’s cousin
Emanuel Harris, ride a bicycle up to the Infiniti, put his head through the
driver’s side window, and converse with the vehicle’s occupant.            Shortly
thereafter, a second man approached the Infiniti and entered the vehicle
through the passenger’s side door. Seconds later, the unidentified man exited
the Infiniti and left the area. Harris also left the area on the bicycle. Detective
Tiliakos relayed his observations to assisting investigators as the Infiniti left
the parking lot.
      Detective Daniel April and Sergeant Brad Walsh began to follow the
Infiniti and observed the vehicle cross the center line of the roadway several
times. At approximately 4:59 p.m., the investigators activated their emergency
lights and stopped the Infiniti. Detective April approached the driver’s side,
and the driver identified himself as Ronald Thompson.            Sergeant Walsh
approached the passenger’s side and identified the passenger as Darryl
Bourgeois. Detective April informed Thompson of the traffic violation and
requested his driver’s license and vehicle documents. According to one police
report, “Detective April observed that Thompson was sweating heavily about
the forehead and his body was visibly shaking while he produced his driver’s
license and vehicle documents.” When Detective April asked Thompson where
he was going, “Thompson stuttered while attempting to answer, clearing his


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throat several times and eventually stated he was just driving around with no
known destination.”
      Following a “name check,” Detective April learned that Thompson’s
driver’s license was in good standing.          Rather than concluding the
investigation, Detective April asked Thompson about his heavy sweating,
stuttering, and body shakes. Thompson indicated that he was nervous because
he was on parole for prior drug violations.      The investigators then asked
Bourgeois to exit the vehicle. Bourgeois told the investigators that Thompson
was taking him to Des Allemands and that “he was unsure why Thompson was
unable to provide that information upon being asked by Detective April,”
although the district court found that Bourgeois’s statements were made after
the computer checks had been completed.
      At approximately 5:05 p.m., six minutes after the traffic stop was
initiated, the investigators requested the assistance of a K-9 unit. Thompson
was then asked to exit the vehicle and was placed in handcuffs. The canine
unit arrived at 5:17 p.m., the dog alerted to the presence of drugs and officers
searched the vehicle. Officers did not find any drugs in Thompson’s vehicle.
Thompson was then placed in the back of a police vehicle.      When Thompson
was later removed from the police vehicle officers found a clear plastic bag
containing cocaine, cocaine base, ecstasy, and heroin.
      Thompson was indicted under 21 U.S.C. § 841(a)(1) and (b)(1)(C) on three
counts of possession with intent to distribute. Thompson filed a pre-trial
motion to suppress but did not request an evidentiary hearing. Thompson
argued that officers lacked reasonable suspicion to extend the traffic stop while
they waited for a drug detection dog. The trial court made detailed findings of
fact and found that officers had reasonable suspicion to extend the stop. The
case proceeded to trial, and a jury convicted Thompson on all three counts. The


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district court sentenced Thompson to 262 months of imprisonment, followed by
six years of supervised release. Thompson appeals.
                                             II
      Thompson does not challenge the validity of the initial traffic stop.
Instead, he contends that Detective Daniel April and Sergeant Brad Walsh
lacked reasonable suspicion to extend the stop beyond the time reasonably
required to address the traffic violation, and therefore that he should not have
been detained after the investigators learned that his driver’s license was in
good standing.
      When reviewing the denial of a motion to suppress, we review factual
findings for clear error and the ultimate constitutionality of law enforcement’s
actions de novo. 1 In addition to deferring to the district court’s factual findings,
we must view the evidence in the light most favorable to the prevailing party,
in this case, the Government. 2 We may affirm the district court’s decision on
any grounds supported by the record. 3
      “The stopping of a vehicle and detention of its occupants constitutes a
‘seizure’ under the Fourth Amendment.” 4 The legality of a traffic stop is
examined under the two-pronged analysis described in Terry v. Ohio. 5 The
court must first examine whether the initial official action was justified. 6
Second, the court determines whether the subsequent action was “reasonably
related to the circumstances that justified the stop, or to dispelling [the]
reasonable suspicion developed during the stop.” 7 As a general rule, once all



      1 United States v. Robinson, 741 F.3d 588, 594 (5th Cir. 2014).
      2 See United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010) (citation omitted).
      3 United States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006) (citation omitted).
      4 United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc).
      5 392 U.S. 1 (1968); Brigham, 382 F.3d at 506.
      6 Brigham, 382 F.3d at 506.
      7 Id. at 507.



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computer checks reveal no violations or reason for further detention, then
reasonable suspicion disappears and the driver and passengers must be
released. 8 “[I]f additional reasonable suspicion arises in the course of the stop
and before the initial purpose of the stop has been fulfilled, then the detention
may continue until the new reasonable suspicion has been dispelled or
confirmed.” 9 “Reasonable suspicion exists when the detaining officer can point
to specific and articulable facts that, when taken together with rational
inferences from those facts, reasonably warrant the search and seizure.” 10
Reasonable suspicion to justify continued detention may not be based on
hunches and doubts but rather must be based “upon objective evidence of
specific criminal activity, interpreted by an officer experienced or educated in
detecting that particular sort of activity.” 11 In assessing the proffered bases
for continuing the detention, the court should not examine each factor in
isolation but instead give due regard to the totality of the circumstances. 12
       The question we must answer is whether officers had reasonable
suspicion to prolong Thompson’s traffic stop beyond the time the computer
check was concluded.
                                             A
       Thompson takes issue with the district court’s factfinding only in one
respect: he urges that the unknown man who entered his vehicle at the
convenience store could not have actually entered and sat in the passenger seat
because Bourgeois was seated in the passenger seat at all times. The record is



       8 See United States v. Jenson, 462 F.3d 399, 404 (5th Cir. 2006) (citing United States
v. Lopez-Moreno, 420 F.3d 420, 431 (5th Cir. 2005)).
       9 Lopez-Moreno, 420 F.3d at 431 (citing Brigham, 382 F.3d at 507; United States v.

Grant, 349 F.3d 192, 196 (5th Cir. 2003)).
       10 United States v. Estrada, 459 F.3d 627, 631 (5th Cir. 2006) (citation omitted).
       11 United States v. Cavitt, 550 F.3d 430, 438 (5th Cir. 2008) (citation omitted).
       12 United States v. Arvizu, 534 U.S. 266, 274-75 (2002).



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somewhat contradictory on this point. Because Thompson did not request an
evidentiary hearing, the only narrative in the record describing the incident is
a police report. That report does not explain how the man could have entered
Thompson’s vehicle and sat in the passenger seat while Bourgeois was seated
there. But that inconsistency does not leave us with the definite and firm
conviction that a mistake has been made. 13 One page of narrative describes
the events from when Thompson was first observed at 4:15 p.m. until he was
stopped at 4:59 p.m. There may be an explanation that was not recorded in
the officer’s report. Moreover, Thompson did not bring this alleged discrepancy
to the attention of the trial court.
       Prior to initiating the traffic stop, Detective April and Sergeant Walsh
knew that the driver of the black Infiniti had just engaged in activity which, in
their training and experience, was consistent with drug trafficking. Detective
April and Sergeant Walsh also knew that the activity had taken place in a
high-drug-crime area. Thompson does not challenge the factual accuracy of
these statements. Officers and the district court properly considered these
factors as part of the reasonable-suspicion analysis. 14
                                               B
       Thompson argues that the anonymous tip lacked specificity and
reliability, was never corroborated by a subsequent investigation, and was
stale. Five months prior to the stop, investigators had received an anonymous
tip that Thompson was distributing drugs from a black Infiniti.




       13  See United States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009) (citation omitted).
       14  See Ornelas v. United States, 517 U.S. 690, 700 (1996) (citation omitted) (“[A] police
officer may draw inferences based on his own experience in deciding whether probable cause
exists.”); Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (citation omitted) (“[T]he fact that the
stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations in a
Terry analysis.”).

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        We consider several factors in assessing the reliability of an informant’s
tip:
        the credibility and reliability of the informant, the specificity of the
        information contained in the tip or report, the extent to which the
        information in the tip or report can be verified by officers in the
        field, and whether the tip or report concerns active or recent
        activity, or has instead gone stale. 15
As we have noted, the Supreme Court views an anonymous tip with “strong
distrust.” 16 Merely describing the person’s appearance is insufficient to create
reasonable suspicion; it must “show that the tipster has knowledge of concealed
criminal activity . . . [and is] reliable in its assertion of illegality, not just in its
tendency to identify a determinate person.” 17                Nevertheless, “there are
situations in which an anonymous tip, suitably corroborated, exhibits
sufficient indicia of reliability to provide reasonable suspicion.” 18                  The
staleness of a tip is determined on the facts of each case. 19
        During the course of the stop, and prior to learning that Thompson’s
driver’s license was in good standing, Detective April learned that the black
Infiniti was driven by Thompson.              Further, Detective Tiliakos observed
Thompson engage in behavior that was consistent with drug trafficking. That
corroborated the substance of the tip, including its assertion that Thompson
was engaged in illegal drug transactions.                    Taken together, officers
demonstrated that the tip was reliable in its ability to identify Thompson as a
driver of a black Infiniti and reliable in its assertion of illegal activity.




        15United States v. Martinez, 486 F.3d 855, 861 (5th Cir. 2007) (citations omitted).
        16Id. at 862.
       17 Florida v. J.L., 529 U.S. 266, 272 (2000) (citation omitted).
       18 Martinez, 486 F.3d at 863 (citation and internal quotation marks omitted).
       19 United States v. Webster, 734 F.2d 1048, 1056 (5th Cir. 1984) (citing United States

v. Freeman, 685 F.2d 942 (5th Cir. 1982)).

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        Nor was the tip stale. Thompson counts a generous six-months between
the tip and the stop. But our cases do not mechanically count the time between
events alleged and the time of the Fourth Amendment activity. 20 Rather, our
opinions consistently bear out that information describing “a long-standing,
ongoing pattern of criminal activity, even if fairly long periods of time have
lapsed between the information” and subsequent detention or search is not
considered “stale.” 21 The anonymous tip described open-ended activity—that
Thompson was using the black Infiniti for drug transactions—not that he
would act in a certain way or use the vehicle on a particular occasion. 22 Law
enforcement officers witnessed activity consistent with the drug trafficking
reported by the tip.
                                              C
       Detective April observed that Thompson was sweating heavily and that
his body was visibly shaking while he produced his driver’s license and vehicle
documents.      When Detective April asked Thompson where he was going,
Thompson stuttered and cleared his throat several times before eventually
stating that he was driving around with no known destination.
       Although Thompson provides innocent explanations for his activities and
nervousness, “factors which by themselves may appear innocent, may in the
aggregate rise to the level of reasonable suspicion.” 23                Further, although
Thompson’s possible drug trafficking in a high-drug-crime area, the
anonymous tip, and Thompson’s nervousness, considered in isolation from one
another, may not have been sufficient to establish the requisite reasonable


       20 Id.
       21 United States v. Craig, 861 F.2d 818, 822-23 (5th Cir. 1988) (citations omitted).
       22 See United States v. Gonzalez, 190 F.3d 668, 673 (5th Cir. 1999) (affirming denial of

motion to suppress in which officers detained defendant two months after informant had
given an open-ended tip that defendant was engaged in smuggling).
       23 United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir. 1999) (citation omitted).



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suspicion, based on the totality of the circumstances and viewing the evidence
in the light most favorable to the Government, the district court did not err in
concluding that Detective April and Sergeant Walsh had reasonable suspicion
to believe that Thompson was engaged in illegal drug activity, justifying their
decision to prolong his detention until the K-9 unit arrived. 24
       We note that the Government urges that we may affirm on an alternative
basis. The Government points to statements by Harris that allegedly confirm
that Thompson sold drugs at the convenience store. However, the district court
expressly found that Detective April and Sergeant Walsh were not informed of
Harris’s statements until after the search of Thompson’s car. Accordingly we
do not rely on the Government’s proposed alternative ground. 25
                                      *        *        *
       The district court properly denied Thompson’s motion to suppress. Its
judgment is AFFIRMED.




       24  See United States v. Arvizu, 534 U.S. 266, 273-78 (2002); United States v. Pack, 612
F.3d 341, 347, 361-62 (5th Cir. 2010).
        25 See United States v. Massi, 761 F.3d 512, 521 (5th Cir. 2014) (citation omitted) (“The

facts leading to a finding of reasonable suspicion do not have to be based on a law enforcement
officer's personal observation, but can also arise from the ‘collective knowledge’ of law
enforcement entities, so long as that knowledge gives rise to reasonable suspicion and was
communicated between those entities at the time of the stop.”).

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