                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 14, 2010
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                    Clerk of Court
                          FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

    v.                                                  No. 09-5014
                                             (D.C. No. 4:08-CR-00106-TCK-1)
    LUIS ALBERTO PINA,                                  (N.D. Okla.)

              Defendant-Appellant.
    _______________________________

    UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

    v.                                                  No. 09-5057
                                             (D.C. No. 4:08-CR-00106-TCK-2)
    ERI LAJARA,                                         (N.D. Okla.)

              Defendant-Appellant.


                          ORDER AND JUDGMENT *


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




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
      Luis Alberto Pina and Eri Lajara pled guilty to possessing more than five

kilograms of cocaine with intent to distribute. They reserved the right to appeal

from the denial of their motions to suppress and now argue the court erred in

denying those motions. We affirm. 1

                                         I.

      On May 5, 2008, an Oklahoma state highway trooper, Ty Owen, stopped a

vehicle with Florida license plates on Interstate Highway 44 in Creek County,

Oklahoma, for failing to signal a lane change when entering a toll plaza. Pina

was driving; Lajara was the passenger. To avoid traffic, Owen approached the

vehicle on the passenger side. In speaking to the occupants he observed an

activated radar detector, several cell phones, eye drops, food wrappers, trash and

a single key in the ignition. Pina produced his license upon Owen’s request.

Owen said he intended to issue Pina a written warning for the traffic violation and

asked Pina to accompany him to his patrol car. Owen and Pina entered Owen’s

patrol car approximately two minutes after the stop.

      In the patrol car, Owen began to write the warning ticket and engaged with

Pina in conversation. Pina asked Owen about the traffic violation and Owen

explained it to him. Owen asked Pina about the ownership of the vehicle and the

identity of the passenger. Owen also asked Pina about his travel plans. At that

point, Pina became “very fidgety, nervous, kind of wrenching his hands. His legs

1
      Our jurisdiction derives from 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                         -2-
were bouncing. And when we began to talk, he would not make eye contact.”

(R. Vol. II at 24.) Pina said he was traveling from Florida to Springfield,

Missouri, which Owen found odd given the most direct route “would not normally

include Interstate 44.” (Id.) Owen testified Pina “seemed to be making up the

story as he went. I even asked him at one time, so you’re going to St. Louis?

You know, even after he had told me Springfield. And he said, yes, I’m going to

St. Louis for two days . . . . ” (Id. at 25.)

       After approximately six to seven minutes, Owen returned to the vehicle to

obtain the registration from Lajara. While doing so, he asked Lajara about his

travel plans. Lajara told him they had been in Las Vegas, Nevada, for a couple of

days, and were bound for Joplin, Missouri. This made more sense to Owen but

was inconsistent with Pina’s story. Owen returned to the patrol car with the

registration and asked Pina about Las Vegas. Owen testified “[it] was very

evident to me that [Pina] knew that I knew that they had given conflicting stories.

He was real vague on Las Vegas.” (Id. at 28.) He then called dispatch to

determine the status of the vehicle registration and to check Pina’s driver’s

license and criminal history. While he was waiting for the information from

dispatch, he deployed his K-9 “[t]o run an air sniff of the vehicle” because he was

suspicious of criminal activity. (Id. at 30.) Approximately twelve minutes had

elapsed since the initial stop.




                                            -3-
      When Owen and the dog approached the vehicle, Owen instructed Lajara to

remain inside the vehicle, roll up the window and turn off the engine. He

explained:

      I [did] it for not only officer safety, but [Lajara’s] safety and my
      dog’s safety. . . . If [my dog] is in the odor of narcotics, he would
      jump in [the window]. So I could not let the window stay down and
      take a chance on my dog jumping in, who’s an aggressive dog, and
      either biting or doing something to the passenger. The reason . . .
      [to] turn the vehicle off, [is] not only for my safety . . . I’m standing
      outside there with no protection and a dog leash in my hand[,] [but]
      [i]f [the passenger] jumps over into the driver’s side, I don’t want
      him throwing it in gear and running over me or leaving the scene.

(Id. at 50-51.)

      The dog alerted to the presence of narcotics after approximately two

minutes. Owen performed a pat-down search of Pina and Lajara and moved them

to a grassy area away from traffic. A subsequent search of the vehicle revealed a

false compartment built into the floorboard behind the driver’s seat. Inside the

compartment, officers located seven bundles of cocaine with a net weight of

6.9 kilograms.

      Pina and Lajara were indicted on one count of possessing five or more

kilograms of cocaine with intent to distribute and aiding and abetting the same.

Lajara filed a motion to suppress arguing, rather summarily, “[t]he stop and

search . . . was illegal.” (Id. Vol. I at 21.) Pina filed a motion to suppress

challenging (1) “the length and scope of his detention after the Trooper initiated

the stop” and (2) “the illegal search and seizures.” (Id. at 38.) Following a

                                          -4-
hearing, the court denied Pina and Lajara’s motions. Pina and Lajara then entered

into plea agreements with the government pursuant to which they pled guilty to

the charges against them and reserved their right to appeal from the denial of their

motions to suppress. Pina was sentenced to 120 months imprisonment; Lajara

85 months.

                                          II.

      The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures[.]” U.S. Const. amend. IV. “A traffic stop is a ‘seizure’ within the

meaning of the Fourth Amendment, even though the purpose of the stop is limited

and the resulting detention quite brief.” United States v. Bradford, 423 F.3d

1149, 1156 (10th Cir. 2005) (quotations omitted). To determine whether a traffic

stop was reasonable, “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.’” Id. (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)).

      Neither Pina nor Lajara dispute the legality of the initial stop; instead they

challenge their subsequent detention. They contend:

      After determining that the alleged traffic infraction only merited
      a traffic warning to the driver . . . the officer delayed . . . while
      he embarked on a line of questioning unrelated to the purpose of
      the original stop, ordered Mr. Lajara to turn off the engine, roll up


                                          -5-
      the windows and . . . then deployed his canine to search for
      contraband . . . .

(Lajara’s Opening Br. at 9.) 1 The district court concluded Owen did not

unreasonably prolong the detention. 2

      In reviewing the denial of a motion to suppress, we accept the factual
      findings of the district court unless they are clearly erroneous. The
      ultimate determination of reasonableness under the Fourth
      Amendment, however, is a question of law which we review de novo.
      We view the evidence in the light most favorable to the district
      court’s determination.

Bradford, 423 F.3d at 1156 (citations omitted).

      “It is well-established that a law enforcement officer conducting a routine

traffic stop may request a driver’s license and vehicle registration, run a computer

check, and issue a citation.” Id. (quotations omitted). An officer may also ask

questions related or unrelated to the initial purpose of the stop so long as “those

questions . . . do not unreasonably extend the amount of time that the subject is

detained.” United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir.

2006) (quotations omitted). “A seizure that is justified solely by the interest in

issuing a warning ticket to the driver can become unlawful if it is prolonged

beyond the time reasonably required to complete that mission.” Illinois v.

Caballes, 543 U.S. 405, 407 (2005).



1
      Pina makes a similar argument. (See Pina’s Opening Br. at 10.)
2
     Alternatively, the court concluded the detention was justified because
Owen had reasonable suspicion of criminal activity.

                                         -6-
       Lajara acknowledges Owen “never actually issued the warning” to Pina.

(Lajara’s Opening Br. at 10.) He contends, however, that Owen “unreasonably

prolonged [his] seizure beyond the time required to complete [the] mission [of

issuing a warning ticket].” (Id. at 11.) Viewing the facts in the light most

favorable to the government, we see no indication of unreasonable delay.

       After he obtained Pina’s driver’s license, Owen asked Pina to accompany

him to his patrol vehicle so he could complete the written warning. He began to

write the warning ticket and conversed with Pina about the traffic violation,

ownership of the vehicle, and Pina’s travel plans. This conversation took between

four and five minutes. Owen then returned to the vehicle to obtain the

registration papers and, while doing so, asked Lajara about his travel plans.

He contacted dispatch upon returning to the patrol vehicle and deployed his dog

while awaiting the information from dispatch–approximately twelve minutes after

the initial stop. 3

       We upheld a detention of similar length and scope in United States v.

Patterson, 472 F.3d 767 (10th Cir. 2006). In that case, a police officer stopped a

van for traveling above the posted speed limit. Id. at 772. The officer asked the

driver of the van, Patterson, to accompany him to his patrol car while the

passenger remained in the back seat of the van. In the patrol car, the officer


3
      There is no evidence Owen asked dispatch to delay providing the requested
information.

                                         -7-
informed Patterson he intended to issue him a warning citation. He asked

Patterson for proof of his registration and insurance and when Patterson stated

those documents were in the van, he returned to the van. The officer questioned

both Patterson and the passenger about their travel plans and discussed “a wide

variety of topics” with Patterson. Id. Approximately six minutes after the initial

stop, the officer radioed to dispatch for a records check. Another officer then

arrived on the scene with a drug detection dog who walked around the stopped

van. After receiving a response from dispatch, the first officer completed the

warning citation. At the same time Patterson was signing the citation, the dog

alerted to the presence of narcotics. The dog alerted two more times and a search

of the van ultimately revealed a hidden compartment containing 67 pounds of

cocaine. Id. at 773.

      On appeal, Patterson challenged the district court’s denial of his motion to

suppress. We considered “whether the detention prior to the alert was

unreasonable” applying “common sense and ordinary human experience.”

Id. at 776 (quotations omitted). We noted Patterson was detained for a period of

13 minutes and 27 seconds prior to the alert. Id. We held the activities

undertaken by the officers “clearly . . . fit reasonably within the scope of the

detention.” Id. at 777. And we rejected Patterson’s argument that “[the] timeline

indicates that [the first officer] was dragging his feet throughout the stop in order

to give [the second officer] time to arrive and run [his dog] around the van.” Id.

                                          -8-
We explained: “Viewing the evidence in the light most favorable to the

government . . . it is clear that [the first officer] acted reasonably.” Id.

      Pina and Lajara contend a different result is warranted here because Owen

asked Lajara to close the window and turn off the vehicle before he walked his

dog around the vehicle. We disagree. While we recognize the possibility an

officer’s instruction to close a window or turn off an engine could be seen as an

unreasonable exercise of dominion and control in some circumstances, 4 we agree

with the district court that these requests were reasonable here. As the court

explained: “There’s no reason for that car to be running while this search is going

on with a passenger inside the car. It would be very simple for the passenger to

move over and take off[.]” (R. Vol. II at 74.) And Owen testified he instructed

Lajara to close the window in order to prevent his dog–an aggressive dog–from

jumping in the window and potentially causing harm to Lajara. 5 Considering

Owen’s instructions in the light of “common sense and ordinary human

experience,” United States v. Sharpe, 470 U.S. 675, 685 (1985), they did



4
       This would be particularly relevant if Pina and Lajara’s consent were at
issue. We have recognized that consent must be given without implied or express
duress or coercion, see United States v. Sanchez, 89 F.3d 715, 719 (10th Cir.
1996), but consent is not at issue here.
5
       Moreover, had the dog jumped into the window, the search may have
violated Pina and Lajara’s privacy interest. See United States v. Winningham,
140 F.3d 1328, 1330-31 (10th Cir. 1998) (affirming the district court’s grant of a
motion to suppress where officers opened a vehicle door through which a dog
jumped during a canine sniff).

                                           -9-
not unreasonably or unnecessarily prolong the detention. Like the detention at

issue in Patterson, Pina and Lajara’s detention was reasonable in scope and

duration. 6

       We AFFIRM the district court’s denial of the motions to suppress.


                                                    Entered for the Court


                                                    Terrence L. O’Brien
                                                    Circuit Judge




6
      We need not address the government’s alternative argument that Owen’s
questioning of Pina and Lajara did not violate the Fourth Amendment because he
had reasonable suspicion of criminal activity. See Bradford, 423 F.3d at 1156-57
(“After the purpose of the traffic stop is completed, further detention for purposes
of questioning unrelated to the initial stop is impermissible unless: (1) the officer
has an objectively reasonable and articulable suspicion that illegal activity has
occurred or is occurring, or (2) the initial detention has become a consensual
encounter.”).

                                        -10-
