    Case: 19-10291    Document: 00515474388    Page: 1   Date Filed: 07/01/2020




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                No. 19-10291                       July 1, 2020
                                                                 Lyle W. Cayce
                                                                      Clerk


UNITED STATES OF AMERICA,

                                         Plaintiff–Appellee,

versus

MAYRA YURIVIA REYES, also known as Mayra Bautista-Hernandez,

                                         Defendant–Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas




               ON PETITION FOR REHEARING EN BANC
                     (Opinion June 5, 2020, 960 F.3d 697)


Before SMITH, GRAVES, and HO, Circuit Judges.
PER CURIAM:

     Treating the petition for rehearing en banc as a petition for panel
rehearing, the petition for panel rehearing is DENIED. No judge in regular
active service having requested that the court be polled on rehearing en banc
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                                 No. 19-10291
(FED. R. APP. P. 35 and 5TH CIR. R. 35), the petition for rehearing en banc is
DENIED.

      The   opinion   is   WITHDRAWN,        and   the    following   opinion   is
SUBSTITUTED:

                                 * * * * *


Before SMITH, GRAVES, and HO, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Mayra Reyes pleaded guilty of conspiracy to distribute and possess with
intent to distribute 50 grams or more of methamphetamine (“meth”) in viola-
tion of 21 U.S.C. § 846. Her plea agreement reserved the right to appeal her
motion to suppress. Because the officer who pulled Reyes over had reasonable
suspicion to extend the stop for a canine sniff, and because Reyes was not
entitled to Miranda safeguards during the routine traffic stop, we affirm.

                                       I.
      Officer Will Windham stopped Reyes, approached her car, informed her
that she was speeding, and requested her driver’s license and registration.
Reyes volunteered that she was trying to get her kids to school. Windham
found that odd because there were no passengers. He asked where the kids
were, and Reyes responded that they were in Abilene—fifteen miles ahead.

      Windham asked Reyes to accompany him to his patrol car while he
looked up her information. According to Windham, she was “extremely hesi-
tant” to leave the truck. After she refused, he explained that he completes
traffic stops in his patrol car for safety purposes—to avoid being hit by passing
vehicles and because he doesn’t know what may be inside the driver’s vehicle.
Additionally, it was very cold. Windham found Reyes’s persistent reluctance
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                                       No. 19-10291
to exit her truck unusual. 1

       As she pondered exiting her vehicle, Reyes asked, “What about the
truck”? Windham answered that it could stay parked where it was. As Reyes
sat down in the passenger seat of the patrol car, she locked her truck.
Windham—who had never seen anyone lock his or her vehicle during a traffic
stop—suspected that Reyes was trying to hide something illegal.

       Windham asked Reyes where she was heading, and she mumbled, “this
address,” as she scrolled through her phone to find it. He inquired, “I thought
you said you were taking the kids to school.” She responded, “Yeah. Not my
kids. My kids [are] in Grand Prairie. I’m helping a friend take her kids to
school. She doesn’t have a car or anything.” Confirming that Reyes started
her trip in Grand Prairie, Windham asked, in a surprised tone, “What time did
you leave?” She replied, “About, what, three hours ago, or so?” Windham,
shocked that she purported to travel three hours to take kids to school, “could
tell something was not right.”

       Windham asked Reyes who owned the truck, which had a temporary
Oklahoma tag. She replied that it was her ex-husband’s. Based on his train-
ing, education, and experience, Windham surmised that narcotics couriers
often use vehicles registered to others to avoid forfeiture.

       As Reyes showed Windham the truck’s documents, he asked whether she
had ever been arrested. She stated that she had an arrest for DWI. Soon after,
and while continuing to examine the truck’s documents, Windham asked
whether there was anything illegal in the truck. Reyes’s facial expressions
changed dramatically, and her eyes shifted from Windham to the front


       1He testified: “I’ve stopped a lot of cars, and over—get everybody out—usually
everybody out of the vehicle, and I’ve never had nobody refuse to come out of the vehicle like
the way she did not want to come out.”
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windshield as she shook her head and said, “No, no, no. There shouldn’t be.
I mean, it’s brand new. It’s brand new.”

      Sounding skeptical, Windham asked again, “So you drove all the way
from Dallas, or Grand Prairie, to take these kids to school for this lady?” Reyes
then added, “Not just for that. I wanted to see her.” She then explained that
she previously had a relationship with the woman in prison and that the
woman’s husband “was going to be at work.” Windham told Reyes that she
wasn’t going to make it in time to take the kids to school. She then changed
her story yet again, claiming that she was going to Abilene “just to see her, to
be honest.”

      After typing into the computer some more, Windham asked for consent
to search the truck. Reyes responded that she could not give consent because
it was not her truck. He explained that she could grant consent because she
had control of the truck. She refused.

      At that point—roughly eight-and-a-half minutes into the stop—
Windham informed Reyes that he was going to call a canine unit to perform a
free-air sniff. He said that if the dog detected drugs, he would have probable
cause to search inside. He requested a canine unit, then told Reyes that he
was going to check the truck’s vehicle identification number (“VIN”) to see
whether it matched the paperwork, because he was “not getting a good return”
on the license plate.

      Windham noted that Reyes had several items on her and asked whether
she had any weapons. She emptied her pockets, which contained only a wallet
and a pack of cigarettes. She asked whether she could have a cigarette, and
Windham agreed to let her “stand outside and smoke” while he got the VIN.
Reyes got out of the car for about thirty seconds, without smoking. After re-
entering the car, she told Windham that she didn’t have her lighter on her. He
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                                  No. 19-10291
asked if she had one in the truck, and she responded that she did not know and
mumbled that she had “probably dropped it.” Windham found it odd that
Reyes declined to retrieve her lighter. He testified that he had never had a
smoker turn down his offer to let him or her smoke.

      After Windham received Reyes’s criminal background check, he asked
her whether she had any other prior arrests. She said that, in addition to the
DWI, she had been arrested for warrants related to tickets. Windham prodded
further, and Reyes conceded that she had been arrested for a pill that was
found in her ex-girlfriend’s vehicle. That story evolved, however, and Reyes
admitted that she was arrested for a meth offense. She said that she went to
jail for that offense and later explained—her story shifting yet again—that the
woman she was going to visit was her girlfriend in prison.

      Within a few minutes, a canine unit arrived and conducted the sniff. The
dog alerted officers that there was a controlled substance in the truck. Wind-
ham searched inside and found 127.5 grams of meth and a loaded handgun.

      A grand jury indicted Reyes on various counts. She moved to suppress
evidence from the stop. She contended, first, that Windham did not have rea-
sonable suspicion to extend the stop for the canine sniff. And, second, she
contended that she was entitled to Miranda warnings when Windham directed
her into his patrol car.

      After a hearing, the court held that “Windham had a reasonable suspi-
cion to extend the traffic stop until a narcotics detection K-9 unit could arrive.”
Additionally, the court ruled that Reyes was not in custody for Miranda pur-
poses, so her statements were not suppressed.

      Reyes pleaded guilty of conspiracy to distribute and possess with intent
to distribute 50 grams or more of meth in violation of 21 U.S.C. § 846 but

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                                  No. 19-10291
reserved her right to appeal the denial of the motion to suppress. She was
sentenced and appeals the denial of her motion to suppress.

                                       II.
      “On appeal of the denial of a motion to suppress, this court reviews the
district court’s fact findings for clear error and its legal conclusions de novo.”
United States v. Rounds, 749 F.3d 326, 337 (5th Cir. 2014). “[W]e review the
evidence in the light most favorable to the government as the prevailing party.”
Id. at 338. The ruling “should be upheld if there is any reasonable view of the
evidence to support it.” United States v. Massi, 761 F.3d 512, 520 (5th Cir.
2014) (quotation marks omitted).

                                       III.
      Reyes makes two assertions concerning whether Windham unlawfully
extended the stop.       First, she contends that “Windham lacked reasonable
suspicion to detain her beyond the time reasonably necessary to conduct an
investigation of the traffic violation, which was the purpose for the stop.”
Second, she avers that “even if Officer Windham did eventually gain reasona-
ble suspicion to afford him the ability to prolong the stop, he did not gain rea-
sonable suspicion until after he had already detained Reyes beyond the time
reasonably necessary to conduct the traffic stop.” Because Windham had rea-
sonable suspicion to extend the stop before he called for a canine sniff, both of
Reyes’s theories fail.

                                       A.
      The protection of the Fourth Amendment “extends to vehicle stops and
temporary detainment of a vehicle’s occupants.”        United States v. Andres,
703 F.3d 828, 832 (5th Cir. 2013). After lawfully stopping a driver for a traffic
violation, an officer’s actions must be “reasonably related in scope to the

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                                  No. 19-10291
circumstances that justified the stop of the vehicle in the first place.” Id. The
stop may last no longer than necessary to address the traffic violation, and
constitutional authority for the seizure “ends when tasks tied to the traffic
infraction are—or reasonably should have been—completed.” Rodriguez v.
United States, 575 U.S. 348, 354 (2015). Those tasks include “checking the
driver’s license, determining whether there are outstanding warrants against
the driver, and inspecting the automobile’s registration and proof of insur-
ance.” Id. at 355.

      Officers may ask questions unrelated to the purpose of the stop while
waiting for computer checks to process. United States v. Pack, 612 F.3d 341,
350 (5th Cir.), modified on other grounds, 622 F.3d 383 (5th Cir. 2010). But
officers must diligently pursue the investigation of the traffic violation. Rodri-
guez, 575 U.S. at 354. The Fourth Amendment tolerates additional investiga-
tion unrelated to the safe and responsible operation of the vehicle only if that
investigation does not lengthen the driver’s detention or is supported by rea-
sonable suspicion of additional criminal activity. Id. at 354–55. If the officer
develops reasonable suspicion of such activity “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.”
United States v. Banuelos-Romero, 597 F.3d 763, 767 (5th Cir. 2010).

      “[A] mere ‘hunch’ does not create reasonable suspicion.”         Kansas v.
Glover, 140 S. Ct. 1183, 1187 (2020). The “officer must be able to point to
specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S.
1, 21 (1968). We look at “the totality of the circumstances” in determining
whether an officer had a particularized and objective basis for suspecting
criminal activity. Glover, 140 S. Ct. at 1191. That analysis “is necessarily fact-

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                                       No. 19-10291
specific, and factors which by themselves may appear innocent, may in the
aggregate rise to the level of reasonable suspicion.” United States v. Ibarra-
Sanchez, 199 F.3d 753, 759 (5th Cir. 1999). “Of principal relevance in the
totality of circumstances that an officer is to consider will be the events which
occurred leading up to the . . . search, and then the decision whether these
historical facts, viewed from the standpoint of an objectively reasonable police
officer, amount to reasonable suspicion.” United States v. Glenn, 931 F.3d 424,
429 (5th Cir.) (quotation marks omitted), cert. denied, 140 S. Ct. 563 (2019).

                                             B.
       Reyes advances two arguments regarding whether Windham unlawfully
extended the traffic stop. First, she contends that the facts on which Windham
relied do not amount to reasonable suspicion. Second, she avers that even if
Windham gained reasonable suspicion to prolong the stop, he did not do so
within the time reasonably necessary to conduct the stop. 2 The earliest time
that Reyes says the stop should have been completed was when Windham
called for the canine unit. Because Windham had reasonable suspicion to
extend the stop by then, Reyes’s arguments can be consolidated.

       The government provides several specific and articulable facts to support
Windham’s suspicion:
   • Windham knew that I-20—where Reyes was pulled over—is a
     known drug-trafficking corridor, and Dallas/Fort Worth—whence
     she came—is a known source for narcotics. 3



       2Reyes’s second argument contains two sub-arguments, based on whether the stop
should have been completed when Windham called for the canine, or two minutes later, when
he completed the VIN check.
       3See United States v. Smith, 952 F.3d 642, 650 (5th Cir. 2020) (“[T]o the extent Smith
argues we cannot consider his presence on I-55, he is incorrect. Smith’s travel on I-55 sup-
ports reasonable suspicion on these facts.”); Glenn, 931 F.3d at 429 (considering that the
defendants “were driving on I-10, which is known for drug-trafficking,” as a factor contribut-
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                                        No. 19-10291
   • Reyes drove a truck registered in someone else’s name, with a tem-
     porary plate for a different state. In Windham’s experience, cour-
     iers often drive vehicles registered to other people to avoid
     forfeiture. 4
   • Reyes was unusually protective of the truck and initially refused
     to exit it.
   • Reyes offered inconsistent and implausible stories about the pur-
     pose of her travel—for instance, stating that she had driven three
     hours to take kids to school, even though there were no
     passengers. 5
   • Reyes had a conviction for possession of meth. 6
   • When Windham asked Reyes whether there was anything illegal
     in the truck—a “yes or no” question—her facial expressions
     changed dramatically, and she said, “There shouldn’t be. It’s
     brand new. It’s brand new.”
Additionally, Windham drew on his training, education, and experience in nar-
cotics interdiction, and his familiarity with the area, to surmise from those
facts his suspicion that Reyes was participating in a crime. 7 Those articulable



ing to reasonable suspicion); Pack, 612 F.3d at 361 (stating that the defendant and his girl-
friend “were traveling along a drug trafficking corridor”—I-10—was a factor supporting
reasonable suspicion); United States v. Castelo, 415 F.3d 407, 412 (5th Cir. 2005) (stating
that the defendant had stopped in El Paso, “a known ‘source city’ for illegal drugs,” contrib-
uted to probable cause).
       4 See United States v. Vazquez, 555 F.3d 923, 929 (10th Cir. 2009) (noting that the
registration contributed to reasonable suspicion because it was not in the defendant’s name).
       5 See United States v. Berry, 664 F. App’x 413, 419 (5th Cir. 2016) (per curiam) (“This
Court has previously determined that inconsistent and untruthful statements can be a factor
in developing reasonable suspicion during a traffic stop . . . .”).
       6 See Pack, 612 F.3d at 361 (noting that the defendant’s admission to prior arrests for

theft and fighting as contributing to reasonable suspicion); United States v. Gonzalez,
328 F.3d 755, 758 (5th Cir. 2003) (listing prior arrest for drug trafficking as a factor support-
ing reasonable suspicion).
       7 See Glover, 140 S. Ct. at 1190 (recognizing “the significant role that specialized train-
ing and experience routinely play in law enforcement investigations”); United States v. Brig-
ham, 382 F.3d 500, 507 (5th Cir. 2004) (en banc) (noting that the Supreme Court “has empha-
sized that courts must allow law enforcement ‘officers to draw on their own experience and
specialized training to make inferences from and deductions about the cumulative informa-
tion available to them that might well elude an untrained person’” (quoting Arvizu, 534 U.S.
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                                       No. 19-10291
facts—and, in particular, Reyes’s implausible stories—combine to establish
reasonable suspicion.

       Reyes avers that “[e]very one of the observations of Officer Windham are
either specifically disclaimed by caselaw as not rising to the level of reasonable
suspicion, or are analogous to other facts the caselaw disclaims.” Reyes’s
divide-and-conquer approach, however, ignores “the Supreme Court’s admoni-
tion not to treat each factor in isolation, but rather to give due regard to the
totality of the circumstances.” United States v. Lopez-Moreno, 420 F.3d 420,
433 (5th Cir. 2005). Although Reyes may have an innocent explanation for
each of her actions—and some of them, such as that she came from the
Dallas/Fort Worth area, provide little support for reasonable suspicion—they
together gave Windham much more than a mere “hunch” of illegal activity.

       Reyes contends that two cases—United States v. Hill, 752 F.3d 1029,
1033 (5th Cir. 2014), and United States v. Spears, 636 F. App’x 893, 901 (5th
Cir. 2016)—support her argument that Windham unreasonably prolonged the
stop. Neither does.

       In Hill, 752 F.3d at 1038, this court ruled that officers lacked reasonable
suspicion to order the defendant out of his car and frisk him. The defendant
disputed the legality of the seizure from its inception. Id. at 1033. Reyes, by
contrast, contends that Windham lacked reasonable suspicion to extend an
otherwise lawful seizure. Additionally, in Hill, the government could offer only
a few generalized facts to support the officers’ suspicion. 8 Unlike the situation



at 273 (quotation marks omitted))).
       8 See Hill, 752 F.3d at 1033–34 (stating that officers based their purported suspicion
on (1) the defendant’s sitting in a parked car at an apartment complex known for drug
activity, (2) a female passenger’s exiting the car and walking toward the complex when a
patrol car parked nearby, (3) the defendant’s not having a driver’s license on him, and (4) the
complex’s location in a county with a high crime rate).
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                                 No. 19-10291
in that case, Windham had an extended, lawful interaction with Reyes and
several articulable facts supporting his suspicion.

      In Spears, 636 F. App’x at 895–96, officers conducting surveillance at the
house of a suspected drug dealer saw Spears arrive and back into the driveway.
After Spears left, he was pulled over for a traffic violation. Id. at 896. As the
officer approached Spears’s truck, the officer saw him rummaging in the center
console. Id. Spears was nervous, evasive, and non-compliant. Id. Spears also
stated that he was coming from visiting a relative, which the officer did not
believe. Id. Spears refused the officer’s request to exit the truck and be patted
down. Id. A second officer arrived and asked Spears again. Id. He eventually
relented. Id. After the pat-down, the officers instructed Spears to wait in the
back of the patrol car for a canine unit to arrive. Id. He protested again before
complying. Id. While trying to find an available canine unit, the officers
learned that the suspected drug dealer had been detained and possessed a
large bag of money. Id. at 896–97. They then decided that they had probable
cause to search Spears’s truck, where they found a gun, a laundry bag that
smelled of marihuana, and $59,800. Id. at 897. On those facts—and although
it was “a close call,” id. at 904 (Costa, J., concurring)—the court held that the
officers lacked reasonable suspicion to detain Spears after the investigation of
his traffic violation was complete. Id. at 901–02 (majority op.).

      In addition to being unpublished and therefore non-precedential, Spears
is different in several crucial ways. The court discounted Spears’s purported
lie—that he was coming from visiting a relative—because the officers didn’t
know the truth. Id. at 902. Here, Reyes admitted that she lied to Windham
about taking kids to school. Additionally, in Spears, the government offered
only four generalized facts to support reasonable suspicion: The defendant
allegedly lied about visiting a relative; he appeared nervous; he was evasive,

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                                     No. 19-10291
non-compliant, and argumentative; and there was a backpack inside his vehi-
cle (although that was not discovered until after the traffic stop had already
been extended). Id. at 902–04. Here, by contrast, the government offers
several specific facts in support of reasonable suspicion, as discussed above.

                                           IV.
      Reyes contends that she was entitled to Miranda warnings because “the
circumstances and interactions of Reyes and Officer Windham would have [led]
a reasonable person to believe they were under arrest.” That argument falls
flat, because a person detained in a routine traffic stop is not “in custody” for
Miranda purposes. 9 Miranda applies only once “a suspect’s freedom of action
is curtailed to a degree associated with formal arrest.” Berkemer, 468 U.S.
at 440 (quotation marks omitted).

      Reyes offers no persuasive reason why Miranda demands the suppres-
sion of her statements during a routine traffic stop. Windham directed her to
his car in a friendly manner. He even encouraged her to bring her coffee with
her and sit in the front seat. She was not patted down or restrained, and
Windham allowed her to leave the car to smoke a cigarette. Because the traffic
stop did not have the quality of a formal arrest, Miranda does not apply.

      AFFIRMED.




      9 Berkemer v. McCarty, 468 U.S. 420, 440 (1984); see also United States v. Coleman,
610 F. App’x 347, 353 (5th Cir. 2015) (per curiam) (holding that Miranda does not apply to
statements made during a routine traffic stop).
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