                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                          September 15, 2006
                                  TENTH CIRCUIT                           Elisabeth A. Shumaker
                             __________________________                       Clerk of Court

 U N ITED STA TES O F A M ER ICA,

           Plaintiff - Appellee,

 v.                                                          No. 05-3343
                                                             (D. Kansas)
 PAUL D OUGLA S,                                  (D.Ct. No. 03-CR-20063-02-JW L)

           Defendant - Appellant.
                          ____________________________

                               OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




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

unanimously that oral argument would not materially assist 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. 1



       *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The 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. 36.3.
       1
        Necessary documents were absent from the Public Defender's brief and (contrary
to counsel's certificate) not included with the electronically submitted brief. Counsel are
reminded of the appellant's obligation to attach to the opening brief a copy of all pertinent
written findings, conclusions, opinions or orders entered by the district court. 10th Cir. R.
28.2 (A)(1).
      On January 20, 2004, Paul Douglas entered a conditional guilty plea to

possession with intent to distribute phencyclidine (PCP) in violation of 18 U.S.C.

§ 2 and 21 U.S.C. § 841(a)(1). He appeals from the district court’s denial of his

motion to suppress. W e AFFIRM .

Background:

      On M ay 19, 2003, Trooper David Heim of the Kansas Highway Patrol

stopped a Ford Taurus driven by Douglas for failure to signal a lane change. A t

2:02 p.m., 2 Trooper Heim first approached the car and asked Douglas, and his

passenger, M ark Seymour, for their licenses and the car rental papers. Douglas’

drivers license was broken into two pieces and held together by tape. Heim then

asked the men w here they were coming from and their destination. Seymour

responded they were coming from Los A ngeles, California, and heading to

W ashington, D.C. Heim asked them w hy they were not flying instead. Seymour

responded that they had flown out to California and had rented the car to drive

back. Both men wore a suit and tie.

      Approximately ninety seconds into the stop, Heim returned to his patrol car

and ran the licenses through dispatch to see if there were any outstanding

warrants. Heim received an immediate response on Seymour’s license stating that




      2
         When Trooper Heim activated his emergency equipment to pull Douglas over,
he also activated a video camera and the entire encounter was videotaped. The video is
time-stamped and was admitted into evidence.

                                          -2-
it was valid and that there were no outstanding arrest warrants. In the process,

Heim discovered Seymour had a prior drug arrest and several armed violent

crimes. Heim asked the dispatcher to run Douglas’ license against the

W ashington, D.C. database. Douglas’ license came back as not on file.

      At approximately 2:08 p.m., after re-running the information with dispatch,

Heim returned to the Taurus to talk to Douglas and Seymour. He returned

Seymour’s license and the rental papers and informed Douglas his license was not

on file and asked him if there was a problem with it. D ouglas answered no.

W hile talking to Douglas and Seymour, Heim observed a radar detector on the

dash of the rental car and detected a very strong caustic chemical odor. He asked

them about the smell and whether there were any open alcohol containers in the

car. 3 They answered no. Heim also noticed two cologne bottles, one in the back

seat and one in the front, along with a hand-rolled cigar in the front seat.

Knowing that hand-rolled cigars are sometimes used to conceal marijuana, Heim

asked to see the cigar. Seymour produced a package of Backwoods hand-rolled

cigars. There was no evidence of marijuana. Suspicious of their travel plans, and

nervous about the possible presence of weapons based on Seymour’s criminal

history, Heim decided to question Seymour and Douglas separately.




      3
        Heim testified he knew the odor was not alcohol, but asked the question hoping
Douglas or Seymour would give him permission to search the vehicle to confirm that
there was no alcohol in the car. They did not offer that opportunity.

                                          -3-
      At 2:11 p.m., nine minutes into the stop, Heim removed D ouglas from the

Taurus and, because it was raining, had him sit in the passenger seat of the patrol

car to question him. Heim asked Douglas about their travel itinerary. Douglas

stated he and Seymour had stayed in California for a couple of days to visit

Seymour’s in-laws. W hile Seymour was visiting family, Douglas stated he went

sight-seeing in southern California. Douglas was unable to provide the names of

any of Seymour’s relatives.

      At 2:13 p.m., Heim left Douglas in the patrol car and returned to the Taurus

to ask Seymour the same questions. At 2:15 p.m., Heim returned to the patrol car

and confirmed with dispatch that nothing had yet come back on Douglas’ license.

He then asked Douglas if he had a criminal history or if he was carrying any

contraband, such as w eapons or drugs. Douglas denied having a criminal history

or carrying weapons or drugs.

      At 2:19 p.m., eighteen minutes into the stop, Heim again returned to the

Taurus and asked Seymour about his criminal history and if he was carrying drugs

weapons or other contraband. Seymour admitted he had a criminal history and

informed Heim he had no weapons or other contraband. Heim asked Seymour to

step out of the car and patted him down for weapons. At this point, Seymour

became irritated about the length of the stop and Heim’s various questions. Heim

attempted to explain his concerns, but Seymour repeatedly interrupted and argued

with him. At 2:21 p.m., Heim requested permission to search the car. Seymour

                                         -4-
questioned the necessity of the search and generally refused consent. At some

point during this encounter, H eim took possession of the car keys. At 2:22 p.m.,

Heim returned to his patrol car to request a drug dog, as is his practice in almost

every case in which consent to search is refused. 4

       At 2:39 p.m., while waiting for the dog to arrive, Heim returned to the

patrol car and again asked Douglas about his license. Douglas volunteered that

his license number was the same as his social security number. Heim again

contacted dispatch to check the license and again emphasized the license was

from W ashington, D.C. At this point, Heim realized dispatch had mistakenly

been running the license through W ashington state. W hen the mistake was

corrected, the license came back as valid. At 2:44 p.m., Heim apologized for the

delay and finished issuing a warning citation for the failure to signal a lane

change.

       At 3:01 p.m., fifty-nine minutes into the stop, the drug dog arrived with its

handler. It alerted to the trunk of the Taurus. The trunk was opened at 3:03 p.m.

and contained approximately 3,591 milliliters of PCP (with a net weight of 2,621




       4
         There is some inconsistency in the record as to the precise time of the call for the
drug dog. In his brief, Douglas lists the call for the drug dog as occurring shortly after
2:22 p.m. (Appellant’s Br. at 6.) According to Heim’s testimony at the hearing, he called
for the drug dog after issuing the warning citation to Douglas, which would place the
request after 2:44 p.m. (R. Vol. IV at 20-21.) However, Heim also stated he waited for
the drug dog for over thirty minutes, which would place the call prior to 2:30 p.m. (Id. at
22.) The videotape provided in the record places the call at 2:24 p.m. (R. Vol. VI.)

                                             -5-
grams) and 435.8 grams of marijuana.

      On M ay 28, 2003, Douglas was indicted on one count of possession with

intent to distribute PCP and one count of possession with intent to distribute

marijuana. At trial, he moved to suppress all evidence seized from the search.

The district court denied the motion holding there was a reasonable basis to call

for a drug dog and the total delay was not unreasonable. D ouglas subsequently

entered a conditional guilty plea, preserving his right to appeal the suppression

ruling. He was sentenced to twenty-four months imprisonment.

Discussion:

      “In reviewing the denial of a motion to suppress, we accept the factual

findings of the district court unless they are clearly erroneous.” United States v.

West, 219 F.3d 1171, 1176 (10th Cir. 2000) (citation omitted). “However, we

review de novo the ultimate determination of the reasonableness of the search

under the Fourth Amendment.” United States v. Bustillos-M unoz, 235 F.3d 505,

511 (10th Cir. 2000) (citation omitted). “W e view the evidence in the light most

favorable to the district court’s determination.” United States v. Wood, 106 F.3d

942, 945 (10th Cir. 1997).

      The Fourth Amendment to the United States Constitution protects “[t]he

right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” “[T]he underlying comm and of the

Fourth Amendment is always that searches and seizures be reasonable.” Wilson v.

                                         -6-
Arkansas, 514 U.S. 927, 931 (1995) (quotation omitted). A routine traffic stop is

analogous to an investigative detention and is analyzed under the principles

enunciated in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Caro, 248 F.3d

1240, 1244 (10th Cir. 2001). W e undertake a two-step inquiry to determine the

constitutionality of an investigative detention. First, we determine whether the

police officer’s action was justified at its inception. Terry, 392 U.S. at 20; Caro,

247 F.3d at 1244. Second, we consider whether the action was reasonably related

in scope to the circumstances which justified the interference in the first place.

Id.

      “An investigative detention must be temporary, lasting no longer than

necessary to effectuate the purpose of the stop, and the scope of the detention

must be carefully tailored to its underlying justification.” Wood, 106 F.3d at 945.

During a routine traffic stop, a police officer may request a driver’s license and

vehicle registration, run a computer check, and issue a citation as a matter of

course. Id.; United States v. Jones, 44 F.3d 860, 872 (10th Cir. 1995). M oreover,

an officer may ordinarily ask questions relating to a driver’s travel plans without

exceeding the scope of a traffic stop. United States v. William s, 271 F.3d 1262,

1267 (10th Cir. 2001). The officer may even go further, inquiring into matters

unrelated to the stop. M uehler v. M ena, 544 U.S. 93, 101 (2005). “Even when

officers have no basis for suspecting a particular individual, they may generally

ask questions of that individual; ask to examine the individual’s identification;

                                          -7-
and request consent to search his or her luggage.” Id. (quoting Florida v. Bostick,

501 U.S. 429, 434-35 (1991)). The officer may also obtain information regarding

the detainee’s criminal history. United States v. M cRae, 81 F.3d 1528, 1536 n.6

(10th Cir. 1996). “W hen the driver has produced a valid license and proof that he

is entitled to operate the car, he must be allowed to proceed on his way, without

being subject to further delay by police for additional questioning.” United States

v. Sandoval, 29 F.3d 537, 549 (10th Cir. 1994). Thus, after completing these

activities, an officer may continue to detain a driver only if: (1) the officer has an

objectively reasonable and articulable suspicion that illegal activity has occurred

or is occurring, or (2) the detention has become a consensual encounter. United

States v. Rosborough, 366 F.3d 1145, 1148 (10th Cir. 2004).

      Two matters are conceded. Trooper Heim’s initial stop for failure to signal

a lane change was justified and the initial detention never became a consensual

encounter. The first issue, therefore, is whether length of the delay was necessary

to effectuate the purpose of the stop. See Wood, 106 F.3d at 945. W hile a one

hour detention on its face appears to exceed the scope of a routine traffic stop, in

this case it was necessary. Upon being validly stopped for a failure to signal a

lane change, Douglas presented a mutilated license that came back as not on file

because of a dispatch error. Approximately thirty-eight minutes transpired

between the initiation of the stop and validation of Douglas’ license. During that

period, Trooper Heim faced the dilemma of releasing (or arresting) Douglas

                                          -8-
without adequately testing his claim that he had a valid license. See United States

v. Lee, 73 F.3d 1034, 1039 (10th Cir. 1996) (requiring prompt release w here

driver has produced a valid driver’s license). W hile the error and resultant delay

was not attributable to Douglas, neither was it attributable to Heim who

rechecked the validity of the license at least four times and repeatedly informed

dispatch the license was from W ashington D.C. See United States v. Place, 462

U.S. 696, 709-10 (1983) (“[I]n assessing the effect of the length of the detention,

we take into account whether the police diligently pursue their investigation.”).

Trooper H eim was thus justified in perpetuating the stop long enough to

determine whether the license was in fact valid. See United States v. Rutherford,

824 F.2d 831, 834 (10th Cir. 1987) (one-hour investigative stop prior to arrest

upheld w hen nearly one half-hour was due to problems with the police computer,

and officers had received tip that implicated defendant in drug trafficking,

defendant failed to stop when signaled by police, and there were inconsistencies

between vehicle’s license plate and registration); United States v. Shareef, 100

F.3d 1491, 1501-02 (10th Cir. 1996) (W here, inter alia, police “computers used to

verify license information were down or slow” and the driver was not carrying a

license, “a detention of thirty minutes, given the totality of the circumstances . . .

was reasonable.”).

      Because Douglas was not permitted to leave as soon as the warning ticket

was issued we next must consider w hether H eim had a reasonable and articulable

                                          -9-
suspicion of criminal activity such that the continued detention of Douglas did not

offend the Fourth Amendment. In conducting this inquiry, we consider the

totality of the circumstances. United States v. Arvizu, 534 U.S. 299 (2002);

United States v. Bradford, 423 F.3d 1149, 1157 (10th Cir. 2005); United States v.

Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998). W e recognize a law enforcement

officer’s experience and training help to distinguish between innocent and

suspicious actions. United States v. Lopez-M artinez, 25 F.3d 1481, 1484 (10th

Cir. 1994). Reasonable suspicion may be founded on factors consistent with

innocent travel. United States v. Sokolow, 490 U.S. 1, 9-10 (1989). W hile

patently innocent or wholly ambiguous conduct may do little to inform the debate,

they are part of the calculus and may not be categorically disregarded. 5

       During the thirty-eight minutes required to verify the validity of D ouglas’

license, Trooper Heim limited himself to permissible questioning of Douglas and

Seymour. During the questioning, Heim uncovered: 1) passengers with an

unusual travel itinerary, see Wood, 106 F.3d at 946-47, 6 2) from a known source



       5
         United States v. Arvizu, 534 U.S. 299 (2002), effectively overruled United States
v. Wood, 106 F.3d 942 (10th Cir. 1997), regarding Wood's proposition that we pick
through all of the facts the trooper relies on, discard the innocent facts and then see if
there is anything left to support a reasonable articulable suspicion. Id. at 947. We must
look at the totality of the facts, the innocent with the incriminating, in our reasonable
articulable suspicion analysis.
       6
        “[U]nusual travel plans may provide an indicia of reasonable suspicion.” Wood,
106 F.3d at 946-47; see Sokolow, 490 U.S. at 9 (forty-eight hour stay in Miami after a
twenty-four hour flight from Honolulu was unusual and supported reasonable suspicion).

                                           -10-
city for illegal drugs, Illinois v. Gates, 462 U.S. 213, 243 (1983), 7 3) Douglas’

inability to provide details about the trip, Wood, 106 F.3d at 947, 4) the

inexplicable presence of a strong chemical odor, United States v. Ozbirn, 189

F.3d 1194, 1200 (10th Cir. 1999), 8 5) the presence of a potential masking agent in

the form of two cologne bottles, West, 219 F.3d at 1178-79, and 6) a passenger

with a criminal record, United States v. Santos, 403 F.3d 1120, 1132 (10th Cir.

2005), 9 who became increasingly confrontational as the stop progressed. Viewing

the totality of the circumstances, Bradford, 423 F.3d at 1157, we agree with the

district court that all of the factors in this case gave rise to reasonable suspicion

of illegal activity warranting the call for a drug dog. 10 Given the presence of


       7
         But see Williams, 271 F.3d at 1270 (traveling from a source city, standing alone
is “at best, a weak factor in finding suspicion of criminal activity”).
       8
         We afford this factor less weight in this case than we might otherwise because
Trooper Heim could not identify the smell as consistent with a specific illegal substance.
See United States v. Sweeney, 688 F.2d 1131, 1137 (7th Cir. 1982) (officer must be able
to identify odor to establish probable cause for a search warrant). However, an
unexplained strong caustic chemical smell emanating from a vehicle may support a
general suspicion that the occupant is transporting illegal materials of some form.
Coupled with other factors, it could amount to probable cause.
       9
        “[I]n conjunction with other factors, criminal history contributes powerfully to
the reasonable suspicion calculus.” Santos, 403 F.3d at 1132. Standing alone, however,
we accord this factor little weight, lest “any person with any sort of criminal record . . .
could be subjected to a Terry-type investigative stop by a law enforcement officer at any
time without the need for any other justification at all.” Sandoval, 29 F.3d at 543.
       10
          We note three additional factors advanced by the government as supporting
reasonable suspicion: both Douglas and Seymour were wearing a suit and tie, they had a
radar detector in their rental car, and Seymour was unfamiliar with the term “blunt” in
spite of his criminal record. Wearing a suit and tie may be unusual attire for a cross-

                                            -11-
reasonable suspicion of illegal activity, a thirty-minute delay to await the arrival

of the drug dog was not unreasonable. See U nited States v. Villa-Chaparro, 115

F.3d 797, 802-03 (10th Cir. 1997) (thirty-eight minute w ait for drug dog held

reasonable).

A FFIRME D.



                                           Entered by the C ourt:

                                           Terrence L. O ’Brien
                                           United States Circuit Judge




country trip. Trooper Heim testified only that “we don’t see that much when people are
driving” cross-country and “[w]e have encountered it a couple of times on some
interdiction stops.” (R. Vol. IV at 17-18.) The presence of a radar detector may be a
better indicator of an intent to speed than illegal drug activity. Heim testified that the
presence of a radar detector in a rental car was something he does not “see very often.”
(R. Vol. IV at 12.) See Williams, 271 F.3d at 1269 (finding the presence of a two-way
radio supports a reasonable suspicion of criminal activity when there was testimony the
officer knew from experience that drug traffickers travel in tandem and sometimes use
such radios to avoid detection by law enforcement personnel). Seymour’s professed
unfamiliarity with the term “blunt,” is significant only based on Heim’s assumption that
individuals with criminal histories have a general familiarity with drug terminology.
There was no evidence in the record to support this assumption, and Seymour was by all
accounts truthful about his criminal history. Those facts may, individually or in
combination, be entitled to little weight, but they are necessarily part of the calculus and
cannot be categorically ignored. See supra, note 5.

                                            -12-
