                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 8, 2008
                    UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-8021
          v.                                            (D. Wyoming)
 THANG T. HUYNH,                                 (D.C. No. 06-CR-234-WFD)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this court 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.




      *
        This order and judgment is not binding precedent except under the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.
I.    Introduction

      Defendant-Appellant, Thang T. Huynh, was charged in a one-count

indictment with possession with intent to distribute

methylenedioxymethamphetamine (“Ecstacy”), in violation of 21 U.S.C.

§§ 841(a)(1). Huynh filed a motion to suppress evidence seized during a roadside

search of the vehicle in which he was traveling. The district court denied the

motion and Huynh entered a conditional guilty plea to the drug charge. See Fed.

R. Crim. P. 11(a)(2). He was sentenced to eighty-two months’ imprisonment and

three years’ supervised release. Huynh then brought this appeal challenging the

denial of his suppression motion. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm the denial of Huynh’s motion.

II.   Background

      On September 13, 2006, Benjamin Peech, a trooper with the Wyoming

Highway Patrol, stopped a speeding vehicle traveling eastbound on I-80. The

vehicle was driven by Huynh. When Peech asked for Huynh’s license, proof of

insurance, and registration, Huynh told him the car was a rental. The female

passenger, Thuy Truc Luu, handed the rental agreement to Peech. Luu was listed

as the renter of the vehicle but Huynh’s name did not appear on the agreement as

an authorized driver.

      Peech asked Huynh to exit the vehicle and began questioning him. Peech

ascertained from the rental agreement that the vehicle had been driven

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approximately 4200 miles in eleven days and the agreement’s termination date

had already passed. Huynh produced a California driver’s license but told Peech

that he and Luu had recently moved to Wisconsin. Huynh stated he had applied

for work at a nail salon in Wisconsin. He also told Peech that Luu was his wife

and she had rented the vehicle in Wisconsin so the two of them could drive to

California and attend his uncle’s memorial service. Peech testified that while he

was questioning Huynh, Luu was fidgeting with something in the back seat of the

rental car and looking back at the patrol car, turning her entire body around to

observe Peech and Huynh.

      Peech issued Huynh a warning and then questioned Luu. He testified she

was extremely nervous during the questioning; her hands were shaking and she

would not maintain eye contact with him. Luu told Peech that Huynh was her

boyfriend and the two had traveled from Milwaukee to California where they had

stayed for approximately a week.

      Peech returned to his patrol car and told Huynh he was free to go. As

Huynh walked toward the rental car, Peech asked him if he would answer a few

more questions. Huynh agreed and repeated his earlier story about the reason for

the trip from Wisconsin to California. He also admitted to Peech that Luu was his

girlfriend, not his wife, and told Peech she was training to work in the nail salon

with him. Peech testified that he believed the stories told by Huynh and Luu were

inconsistent so he decided to re-contact Luu.

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      Luu told Peech she and Huynh had moved to Milwaukee to help her father

relocate his semiconductor business. She indicated Huynh was working in the

business with her and specifically told Peech that they had no other jobs in

Milwaukee. Peech testified Luu told him the purpose of the trip was to visit

family in California but she did not mention the funeral service for Huynh’s

uncle. She also stated she and Huynh had stopped in Salt Lake City. Peech

testified Luu exhibited numerous nervous behaviors while she spoke to him and

giggled nervously when she answered his questions.

      Peech asked Luu for permission to search the vehicle and she refused to

give her consent. Peech then took the keys from Luu, asked Luu and Huynh to

exit the vehicle, and called for a drug detection dog. Approximately forty-five

minutes after Luu refused consent to search the vehicle, Deputy Stevens of the

Laramie County Sheriff’s Office arrived with his canine. Stevens ran the dog

around the exterior of the vehicle and it alerted to the left rear quarter panel. The

officers searched the vehicle and found five plastic bags filled with approximately

5000 pills which were later determined to be methylenedioxymethamphetamine

(“MDMA” or “Ecstacy”). Huynh was arrested and charged with possession with

intent to distribute methylenedioxymethamphetamine, in violation of 21 U.S.C. §

841(a)(1).

      After the indictment was returned, Huynh filed a motion to suppress all

evidence obtained as a result of the search of the vehicle. The district court

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denied the suppression motion, concluding Huynh’s continued detention was

based on Peech’s objectively reasonable suspicion that Huynh was engaged in

criminal activity. United States v. Arvizu, 534 U.S. 266, 273 (2002). Huynh

pleaded guilty, preserving his right to appeal the denial of his motion. See Fed.

R. Crim. P. 11(a)(2).

III.     Discussion

         When reviewing the denial of a motion to suppress, this court views the

evidence in the light most favorable to the Government and accepts the district

court’s factual findings unless they are clearly erroneous. United States v. Price,

265 F.3d 1097, 1104 (10th Cir. 2001). The ultimate determination of whether a

traffic stop was reasonable under the Fourth Amendment is a question of law

reviewed de novo. Id. “The defendant bears the burden of establishing a Fourth

Amendment violation.” United States v. Patterson, 472 F.3d 767, 775 (10th Cir.

2006).

         Huynh does not challenge the lawfulness of the initial stop and the

Government concedes the encounter between Peech and Huynh was no longer

consensual after Peech took the car keys from Luu. Thus, the only question

before this court is whether Peech had objectively reasonable and articulable

suspicion of illegal activity sufficient to justify the continued detention. United

States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998). “We assess reasonable

suspicion in light of the totality of the circumstances.” United States v. Valles,

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292 F.3d 678, 680 (10th Cir. 2002). Individual factors can contribute to

reasonable suspicion even if each factor “is not by itself proof of any illegal

conduct and is quite consistent with innocent travel.” United States v. Sokolow,

490 U.S. 1, 9 (1989).

      The district court relied on the following facts to conclude Peech had an

objectively reasonable suspicion that Huynh was engaged in illegal activity:

      (1) [Huynh] had a California driver’s license but also gave Peech a
      Milwaukee address; (2) the rental vehicle had not been returned
      despite it being due back to the rental agency four days prior to the
      stop; (3) there was no address on the rental agreement and [Huynh]
      was not listed as an authorized driver; (4) [Huynh] stated that the
      passenger was his wife while Luu stated [Huynh] was her boyfriend;
      (5) Luu’s extreme nervousness throughout the stop; and (6)
      [Huynh’s] and Luu’s inconsistent explanations regarding their trip to
      California and their plans upon returning to Milwaukee.

See, e.g., United States v. Karam, 496 F.3d 1157, 1164-65 (10th Cir. 2007)

(“confusion about details is often an indication that a story is being fabricated on

the spot, and vague and evasive answers may be considered, in conjunction with

other factors, as contributing to an officer’s determination of reasonable

suspicion”) (quotations and citation omitted); United States v. Santos, 403 F.3d

1120, 1127 (10th Cir. 2005) (holding unusual nervousness “may be considered as

part of the totality of circumstances a reasonable law enforcement officer would

analyze in investigating possible crimes”); Hunnicutt, 135 F.3d at 1349 (listing

factors contributing to objectively reasonable suspicion as including “having no

proof of ownership of the vehicle, having no proof of authority to operate the

                                          -6-
vehicle, and inconsistent statements about destination”); United States v. McRae,

81 F.3d 1528, 1535 (10th Cir. 1996) (“contradictory travel plans can contribute to

a reasonable suspicion of illegal activity”).

      On appeal, we must “determine whether the totality of the circumstances

justify the detention.” United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir.

1997) (quotations and citations omitted). “While reasonable suspicion may not be

based on a ‘mere hunch,’ ‘the likelihood of criminal activity need not rise to the

level required for probable cause, and it falls considerably short of satisfying a

preponderance of the evidence standard.’” Karam, 496 F.3d at 1162 (quoting

Arvizu, 534 U.S. at 274). Huynh does not challenge any of the district court’s

factual findings. He simply argues they do not establish reasonable articulable

suspicion of illegal activity. We disagree. Under the totality of the

circumstances based on the district court’s findings, we conclude Peech had

reasonable suspicion to detain Huynh pending the arrival of the drug detection

dog. Consequently, the court did not err when it denied Huynh’s motion to

suppress.




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IV.   Conclusion

      The order of the district court denying Huynh’s motion to suppress is

affirmed.

                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge




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