                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    October 26, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


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

               Plaintiff - Appellee,                    No. 06-2070
          v.                                         (D. New M exico)
 EN RIQ U E C HA V A RR IA ,                    (D.C. No. CR-05-1329-RB)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before TACH A, Chief Judge, A ND ER SO N and BROR BY, Circuit Judges.




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

unanimously that oral argument would not materially assist in 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.

      Defendant/appellant Enrique Chavarria was indicted on one count of

possession with intent to distribute five grams or more of methamphetamine, and



      *
       This order and judgment is not binding precedent, except under the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.
one count of possession with intent to distribute 500 grams or more of a mixture

or substance containing a detectable amount of cocaine, as well as aiding and

abetting, all in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2.

His motion to suppress was denied following an evidentiary hearing. Chavarria

proceeded to trial and was found guilty by a jury of both counts. He was

sentenced to 151 months’ imprisonment. Chavarria appeals his conviction. W e

affirm.



                                 BACKGROUND

      On April 8, 2005, at approximately 9:50 p.m., Chaves County, New

M exico, Sheriff’s Deputy Raul Valderaz was on patrol when he observed a pickup

truck, driven by defendant Chavarria, cross through an intersection and narrowly

avoid colliding with other vehicles. Valderaz accordingly pulled Chavarria’s

truck over. Deputy Valderaz approached the driver’s side of the truck and asked

Chavarria for identification. W hen Chavarria produced his identification card, the

deputy noticed that Chavarria’s hands were shaking “very uncontrollably.” Tr. of

M ot. to Suppress Hr’g at 5, R. Vol. III. Additionally, when the deputy asked for

his insurance information, Chavarria passed over it several times before finally

handing it to the officer.

      W hen Valderaz asked for his driver’s license, Chavarria responded he did

not have one. Valderaz testified he told Chavarria not to be so nervous, that this

                                         -2-
was a normal traffic stop and that he (Valderaz) would probably give Chavarria a

citation for not having a driver’s license.

      Valderaz then returned to his patrol car to check the validity of Chavarria’s

identification card and to see if he had a valid driver’s license. W hile sitting in

his patrol car, V alderaz “noticed furtive movements inside [Chavarria’s] vehicle,”

including Chavarria “reaching down.” Id. at 6. Valderaz requested a back up and

Deputy Ralph M oore responded.

      Upon arrival, Deputy M oore briefly spoke to V alderaz. M oore also

observed Chavarria “moving continuously” and “looking back at Deputy Valderaz

and myself.” Id. at 40. M oore walked up to the passenger side of the truck to

watch Chavarria while Valderaz remained in his patrol car and wrote a citation

for driving without a driver’s license. After Valderaz finished writing the

citation, he walked back to the driver’s side of the truck and asked Chavarria to

step out of the truck and walk to the front of Valderaz’s patrol car. At that point,

while in front of Valderaz’s patrol car, Valderaz returned Chavarria’s

identification card to him, gave him the citation and then explained the citation.

      W hile V alderaz was explaining the citation to Chavarria, Deputy M oore

continued to stand by the passenger side of the truck, looking through the window

into the cab of the truck. When M oore shone his flashlight into the cab, he saw a

blue W al-M art bag lying on the passenger-side floorboard. The bag had been cut

in half, the sides w ere gone and the handles were missing. Deputy M oore

                                          -3-
observed bundles inside the bag, some containing a dark substance and some

containing a white powdery substance. Based upon his ten years as a law

enforcement officer, M oore believed the W al-M art bag contained narcotics.

      W hen Valderaz finished explaining the citation to Chavarria, Valderaz

asked if he could search the truck. Chavarria refused consent, stating that the

truck was not his. M oore then walked back to where Valderaz and Chavarria

were standing and asked Chavarria if he knew what a “plain view search” was.

W hen Chavarria responded that he did, M oore told Chavarria about the bag

visible on the passenger-side floor board and asked Valderaz to go look in the

truck cab. Valderaz looked into the cab, using his flashlight, and also saw the

bundles of what appeared to be narcotics inside the W al-M art bag.

      W hile V alderaz looked into the truck cab, M oore conducted a pat-down

search of Chavarria. 1 M oore found nothing during the search. After Valderaz

saw the suspected narcotics, he told M oore to place Chavarria under arrest.

Valderaz then seized the W al-M art bag. Inside the bag, he found bundles

containing a crystal-like substance which he believed was methamphetamine and



      1
        The precise sequence of events is not completely clear. At the suppression
hearing, Valderaz testified that he returned Chavarria’s ID and gave him the
citation after M oore conducted the pat-down of Chavarria. Tr. of M ot. to
Suppress Hr’g at 32, R . V ol. III. M oore testified that he conducted the pat-dow n
search after Valderaz had returned the ID and explained the citation, id. at 45,
although he testified that Chavarria had not yet signed the citation when the pat-
down occurred. Id. at 52. In any event, it is clear that the pat-down occurred
after M oore observed the contraband.

                                         -4-
a white powdery substance believed to be cocaine. Laboratory analysis revealed

that they were in fact methamphetamine and cocaine.

      At trial, after the close of the government’s case, Chavarria moved for a

verdict of acquittal, arguing that the government had failed to show that he had

possession and control of the contraband. The district court denied the motion,

stating that the “nervousness described by the two officers, if believed, could be

the link between him and the drugs of guilty knowledge.” Tr. of Jury Trial at

106, R. Vol. IV. The jury found Chavarria guilty, and he was sentenced to 151

months’ imprisonment.

      Chavarria appeals, arguing (1) there was insufficient evidence of

possession and knowledge of the contraband, where the defendant and contraband

were in a borrowed vehicle and the government relied exclusively on the

defendant’s nervousness to establish possession and knowledge; and (2) the

district court erred in denying Chavarria’s motion to suppress because the

contraband was found during a prolonged detention conducted ostensibly to

protect officer safety even though the officers testified they did not fear for their

safety.




                                          -5-
                                  D ISC USSIO N

      1. Sufficiency of the evidence

      “W e review challenges to the sufficiency of the evidence de novo.” United

States v. Isaac-Sigala, 448 F.3d 1206, 1210 (10th Cir. 2006). In conducting that

review, “we consider only whether, taking the evidence— both direct and

circumstantial, together with the reasonable inferences to be drawn therefrom—

in the light most favorable to the government, a reasonable jury could find the

defendant guilty beyond a reasonable doubt.” Id. (further quotation omitted). “A

conviction should be reversed only if no reasonable juror could have reached the

disputed verdict.” Id. (further quotation omitted).

      Chavarria argues there was insufficient evidence establishing that the

contraband was his or that he was even aware it was in the truck. He further

argues that the truck was not his and he presented evidence to the jury that the

truck’s owner, Rudy Archuleta, “was stopped two months after Chavarria’s stop,

in another Archuleta-owned truck, in the same city, with the same type of

narcotics (methamphetamine and cocaine), roughly the same amount of

methamphetamine (48 grams in the vehicle Chavarria was driving, 66 grams in

the vehicle Archuleta was driving), and with the narcotics located in the same

place in the truck (floorboard).” Appellant’s Opening Br. at 13. Chavarria argues

the only evidence establishing a nexus between Chavarria and the drugs w as his




                                        -6-
alleged nervousness and that is insufficient. We disagree. The record reveals

sufficient evidence linking Chavarria and the drugs.

      First, while Chavarria was not the owner of the truck, he was the driver and

sole occupant when the drugs were discovered in plain view in the truck cab. W e

have “held that it is permissible to infer that the driver of a vehicle has knowledge

of the contraband found within it.” United States v. Cota-M eza, 367 F.3d 1218,

1224 (10th Cir. 2004). The fact that the actual owner was himself later found

also transporting drugs in a different truck does nothing to minimize Chavarria’s

culpability when he was found with drugs in the borrowed truck he was driving.

      Second, both officers testified that they observed Chavarria, after his truck

was pulled over, moving around in the truck, reaching down towards something,

and generally engaging in what appeared to be furtive movements. Such

movements can constitute evidence linking the person making the furtive

movements in a vehicle to contraband in the vehicle. See United States v. Bowen,

437 F.3d 1009, 1015-16 (10th Cir. 2006) (noting that among the evidence

supporting a nexus between defendant and contraband in car was officers’

observation of defendant making “furtive movements around the passenger seat”);

United States v. Springfield, 196 F.3d 1180, 1183 (10th Cir. 1999) (noting that

“furtive actions” in rear of van supported nexus between defendant and

contraband in van).




                                         -7-
      Third, Chavarria was extremely nervous throughout his encounter with law

enforcement authorities. W e have on numerous occasions discussed the

significance of a defendant’s nervousness when determining whether there was

reasonable articulable suspicion to continue an investigative stop. In general, we

have held that the significance of a defendant’s nervousness can vary, depending

on the particular circumstances and the degree of nervousness. See, e.g., United

States v. Bradford, 423 F.3d 1149, 1157 (10th Cir. 2005) (“[W ]e have repeatedly

emphasized that nervousness and its signs should not be overcounted in our

analysis.”); United States v. W est, 219 F.3d 1171, 1179 (10th Cir. 2000) (noting

extreme and continued nervousness “is entitled to somew hat more w eight”);

United States v. W ald, 216 F.3d 1222, 1227 (10th Cir. 2000) (holding

nervousness is “of limited significance” in determining whether reasonable

suspicion exists); but cf. United States v. Bloom, 975 F.2d 1447, 1458 (10th Cir.

1992) (noting that officer’s statement that defendant was very nervous was

“nothing more than an inchoate suspicion or hunch”), overruled on other grounds,

United States v. Little, 18 F.3d 1499 (10th Cir. 1994( (en banc). Our reservation

about giving too much weight to a defendant’s nervousness during an

investigative stop is partially explained by the fact that “nervousness is a

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

United States v. Santos, 403 F.3d 1120, 1127 (10th Cir. 2005).




                                          -8-
      In this case, by contrast, we are faced with the question of w hether a

defendant’s nervousness during a traffic stop can be used not just to provide

articulable suspicion to further detain the defendant, but as evidence that he

knowingly possessed contraband in the vehicle. The few cases from our circuit

suggest that it can. For example, we have held that a defendant’s nervousness,

with no police presence, “specifically directed at [a] package” can be used by a

jury as evidence that the defendant “knew the package contained a controlled

substance.” United States v. Johnson, 57 F.3d 968, 972 (10th Cir. 1995); see also

United States v. Cui Qin Zhang, 458 F.3d 1126, 1128 (10th Cir. 2006)

(“[N]ervous behavior, . . . when considered with all other evidence presented

against the defendant, [is] sufficient for a rational jury to find the defendant

guilty of possession with intent to distribute cocaine.”); United States v. Lazcano-

Villalobos, 175 F.3d 838, 844 (10th Cir. 1999) (noting that defendant’s

nervousness at border checkpoint is, along with other factors, evidence of

knowledge of cocaine hidden in car). Thus, the jury could infer from Chavarria’s

extreme nervousness that he was aware of the contraband on the truck floor.

      In sum, we hold that there was sufficient evidence from which a reasonable

jury could conclude that Chavarria knowingly possessed the contraband found on

the floor of the truck.




                                          -9-
      2. Denial of motion to suppress

      “In review ing the denial of a motion to suppress, we view the evidence in

the light most favorable to the government, accept the district court’s findings of

fact unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment.” United States v. Ladeaux, 454

F.3d 1107, 1110 (10th Cir. 2006) (further quotation omitted).

      Chavarria argues the district court erred in failing to suppress the

contraband “when it was discovered during a prolonged detention of Chavarria

conducted ostensibly for ‘officer safety’ purposes, notwithstanding explicit

officer testimony that there was no suspicion of danger.” Appellant’s Br. at 16.

A routine traffic stop is like an investigative detention and is accordingly

governed by the principles set out in Terry v. Ohio, 392 U.S. 1 (1968). “To

determine the reasonableness of an investigative detention, we make a dual

inquiry, asking first whether the officer’s action was justified at its inception, and

second whether it was reasonably related in scope to the circumstances which

justified the interference in the first place.” United States v. Guerrero-Espinoza,

462 F.3d 1302, 1307 (10th Cir. 2006) (further quotation omitted). Chavarria does

not challenge the validity of the initial stop in this case. His argument is that the

officers unlawfully prolonged the stop beyond the time justified by the reason for

the stop.




                                         -10-
      During a routine traffic stop, “a trooper may request a driver’s license,

vehicle registration and other required papers, run necessary computer checks,

and then issue any warning or citation.” Id. Once the trooper has accomplished

those tasks, “a driver must be allowed to proceed on his w ay unless reasonable

suspicion exists that the driver is engaged in criminal activity or the driver

consents to additional questioning.” Id.

      Chavarria concedes that “at the time that [he] was extracted from his

vehicle, all that was left to do was to present the citation and return Chavarria’s

documents.” Appellant’s Br. at 18. By his own admission, therefore, Chavarria

was removed from his vehicle prior to his receipt of the citation. Thus, the

investigative detention had not yet ended. And while Chavarria challenges the

officers’ authority to remove him from the vehicle, they were entitled to do that.

“An officer may 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.” United States v. Holt, 264 F.3d 1215, 1222 (10th Cir. 2001) (en banc).

      Further, it appears that Deputy M oore observed the contraband in plain

view on the vehicle floor while Chavarria was outside the vehicle receiving the

citation. 2 Once M oore observed the drugs, the officers had reasonable articulable

suspicion to further detain him and search him and/or his vehicle. Thus, M oore’s

      2
        Chavarria does not dispute that the contraband was in plain view. The
officers testified that the interior of the car was visible because of the lights from
their patrol cars, the street lights and their flashlights.

                                           -11-
pat-down of Chavarria was justified after the contraband was spotted. M oreover,

Chavarria’s conduct justified the pat-down: as Deputy M oore explained, “[h]e

kept placing his hands in his pockets, and I asked him to keep his hands out of his

pockets. And that’s w hen I conducted a pat-down search.” Tr. of M ot. to

Suppress H r’g at 45, R. Vol. III. 3

       In sum, the record reveals that the officers in this case properly stopped

Chavarria’s vehicle after observing a violation of the traffic laws. The

investigative detention proceeded properly, and without undue delay, until one of

the officers observed contraband in plain view, which, in turn, justified further

investigation. The district court properly denied Chavarria’s motion to suppress.



                                       C ON CLU SIO N

       For the foregoing reasons, Chavarria’s conviction is AFFIRMED.

                                                   ENTERED FOR THE COURT


                                                   Stephen H. Anderson
                                                   Circuit Judge




       3
        W hile Chavarria asserts the officers testified at the suppression hearing
that they did not believe Chavarria ever posed a safety threat, he has misread that
testimony. The officers repeatedly testified that they removed Chavarria from the
truck because of safety concerns, and they did not let him return to the truck
because they did not know whether he had weapons in the truck. M oreover, the
pat-down was to assure the officers that Chavarria had no weapons on his person.

                                            -12-
