                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                                                                  F I L E D
                     IN THE UNITED STATES COURT OF APPEALS                          July 10, 2006

                               FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                      Clerk


                                      No. 05-30561
                                    Summary Calendar


       UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

                                    versus

       CHARLES J. MILLER

                                             Defendant-Appellant.



                Appeal from the United States District Court for
                       the Western District of Louisiana
                      (USDC No. 3:04-CR-30041-ALL)
       _________________________________________________________

Before REAVLEY, JOLLY, and OWEN, Circuit Judges.

PER CURIAM:*1

       In an appeal involving a district court’s denial of a motion to suppress, we review

the district court’s findings of fact for clear error and its conclusions of law de novo.

United States v. Hicks, 389 F.3d 514, 526 (5th Cir. 2004). Under the two-part Terry


       *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not be published and is not precedent except under the limited circumstances set forth in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.
reasonable suspicion test, we inquire whether the officer’s action during a traffic stop

was: (1) “justified at its inception”; and (2) “reasonably related in scope to the

circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S.

1, 19-20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889, 905 (1968). We affirm for the

following reasons:

      1.     Miller argues that his driving was not bad enough to create a reasonable

             suspicion that he was intoxicated or fatigued. “[R]easonable suspicion

             exists when the officer can point to specific and articulable facts which,

             taken together with rational inferences from those facts, reasonably warrant

             the search and seizure.” United States v. Lopez-Moreno, 420 F.3d 420, 430

             (5th Cir. 2005). Miller’s weaving and slow driving at 4:30 in the morning

             established reasonable suspicion that he could be intoxicated or fatigued.

             Weaving entirely within one lane of traffic is not necessarily less dangerous

             than weaving across lanes. Accordingly, the officer’s decision to stop

             Miller was justified at its inception.

      2.     “[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.” Id. at 431. In United States v. Gonzalez, 328 F.3d 755 (5th Cir.

             2003), the defendant appealed a narcotics conviction for drugs found in the

             course of a traffic stop. The court held that nervous behavior exhibited and

                                              2
        inconsistent answer given by Gonzalez, as well as his admission to a prior

        drug conviction, gave rise to a reasonable articulable suspicion that

        Gonzalez was involved in drug trafficking. Id. at 758. Like Gonzalez,

        Miller admitted to a previous drug conviction, offered inconsistent

        statements, and exhibited nervous behavior. Miller’s incessant rocking back

        and forth and the rubbing of his arms and hands suggested that he was either

        under the influence of drugs or had reason to be apprehensive. Taken

        together, these facts gave rise to additional reasonable suspicion that Miller

        was involved in drug trafficking and justified the employment of the dog to

        sniff the exterior of the vehicle.

AFFIRMED.




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