                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 23, 2008
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

      Plaintiff-Appellee,
                                                         No.06-4312
v.
                                                       (District of Utah)
                                                  (D.C. No.2:05-CR-861-TC )
RONALD G. DOSS,

      Defendant-Appellant.



                            ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
BRISCOE, Circuit Judge.


      On November 8, 2005, at 9:50 a.m., Sergeant Paul Mangelson, a Utah

Highway Patrol Trooper who had been with the Highway Patrol for nearly 40

years, was patrolling Interstate 15 in Utah when he stopped a vehicle which,

according to the Trooper, was traveling 82 miles per hour in a 75 miles per hour

zone. The vehicle stopped by the Trooper was being driven by a Ronald G. Doss,

hereinafter referred to as the defendant. After starting his video camera and



       *
        This order and judgment is not binding precedent, except under the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.
turning on a wireless microphone that he wore, Sergeant Mangelson approached

the stopped vehicle from the passenger’s side and asked the defendant for his

driver’s license and car registration, which the latter produced. The Trooper

informed the defendant why he had been stopped, i.e., speeding, and inquired

about his travel plans. Upon speaking to the defendant, the officer immediately

noticed the defendant’s bloodshot eyes, his extreme nervousness, and his

“withdrawn look.” The Trooper commented upon the defendant’s bloodshot eyes

and asked him if he had been drinking the night before or had any drugs or

medication that morning. Defendant denied using drugs or alcohol and said he had

a poor night’s sleep and had been driving since 5:30 a.m. that morning. The

Trooper then asked the defendant to step out of the car in order to see how he was

“navigating,” and he performed a sobriety test on defendant, i.e. an “eye

convergence” test, which test defendant failed. In any event, at that particular

moment the Trooper told the defendant that he thought the defendant had been

smoking marijuana, which the defendant denied. Also at that point in time, the

defendant denied the Trooper’s request to search his car. The two then sat in the

Trooper’s car while a computer check was being run. Once in the car, the Trooper

noticed that the defendant smelled like marijuana and defendant had a green

residue on his tongue. Next, the Trooper performed some additional roadside

sobriety tests which the defendant also failed. The defendant again refused to

allow the Trooper to search his vehicle, whereupon the Trooper arrested the

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defendant for driving while impaired, the Trooper suspecting that the defendant

had been using marijuana. The ensuing inventory search of the defendant’s car

disclosed a baggie of marijuana, a marijuana pipe in the console of the vehicle,

several pounds of methamphetamine inside a stuffed bear, scales, more baggies of

marijuana, and three bottles of methamphetamine in a duffel bag. A subsequent

urine test of the defendant revealed the presence of marijuana.

      Based on the foregoing sequence of events, the defendant was charged in the

United States District Court for the District of Utah with one count of possession

of 500 grams or more of a mixture containing methamphetamine with an intent to

distribute in violation of 21 U.S.C. § 841(a)(1). Prior to trial, the defendant

moved to suppress the use at trial of the contraband found in the search of his

vehicle and his statements to Trooper Mangelson on the grounds that such were

outside of and beyond the scope of his detention for the speeding infraction.

According to the defendant, his continued detention was not based on a

“reasonable, articulable” suspicion on the part of Trooper Mangelson that the

defendant was driving while impaired, and thus defendant’s Fourth Amendment

rights had been violated. Specifically, defendant’s position was that though his

initial detention based on speeding was reasonable, his continued detention

became unreasonable when the Trooper ordered him to exit his vehicle. After an

evidentiary hearing, the District Court denied defendant’s motion to suppress.

Later, a two-day jury trial was held and the jury found the defendant guilty of the

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crime charged and he was later sentenced to 144 months imprisonment. A timely

Notice of Appeal was filed.

      On appeal, present counsel, who did not represent the defendant at the

suppression hearing, raises one issue which he frames as follows:

             Whether Sergeant Mangelson had a reasonable,
             articulable suspicion of criminal behavior to justify
             expanding the stop beyond its initial scope regarding a
             speeding violation.

      The District Court, after an evidentiary hearing at which Trooper Mangelson

was the only witness, denied the motion to suppress, holding that the Trooper had

a reasonable, articulable suspicion that the defendant was driving while impaired,

which would justify an extension of the scope and duration of his initial detention

for speeding.

      When reviewing a District Court’s denial of a motion to suppress we, on

appeal, accept the District Court’s findings of facts unless clearly erroneous and

view those facts in the light most favorable to the Government. See United States

v. Caro, 248 F.3d 1240, 1243 (10th Cir. 2001). Judging the credibility of Trooper

Mangelson, for example, and determining his credibility and drawing reasonable

inferences therefrom are within the province of the District Court, unless clearly

erroneous. United States v. Villa-Chaparro, 115 F.3d 797, 801 (10th Cir. 1997).

However, the District Court’s ultimate determination of reasonableness under the

Fourth Amendment is reviewed de novo. United States v. Caro, 248 F.3d at 1243.


                                         -4-
      In denying the defendant’s motion to suppress, the District Court entered a

12-page order considering in commendable detail Trooper Mangelson’s testimony.

See United States v. Doss, 2006 WL 1409132 (D. Utah). At the outset of its order

denying the defendant’s motion to suppress, the District Court commented upon

Trooper Mangelson’s background and training as follows:

                  During the course of his nearly forty-year career,
           Sergeant Mangelson has conducted thousands of
           investigations involving intoxicated drivers, including
           hundreds of investigations of drivers under the influence of
           controlled substances, such as marijuana. (Transcript of
           March 30, 2006 Evidentiary Hearing [hereinafter ”Tr.”] 4-5.)
           Additionally, Sergeant Mangelson has received ongoing and
           extensive training regarding the physiological effects of
           controlled substances on the human body. (Id. at 5-10.)
           Sergeant Mangelson is trained to identify physical indicators
           that suggest use of a controlled substance, and is also trained
           to perform field tests designed to reveal impairment caused by
           controlled substances. (Id.)

       In that same order, the District Court then went on and spoke as follows:

                     The record evidence shows that Sergeant
             Mangelson expanded the scope of the traffic stop
             almost immediately after first making face-to-face
             contact with Mr. Doss. Sergeant Mangelson, when
             initially speaking with Mr. Doss through the
             passenger-side window about the reason for the
             traffic stop, commented on Mr. Doss’s eyes and
             asked if he had been drinking only moments after
             beginning the conversation. (See Gov. Ex. 1.)
             Sergeant Mangelson testified that upon speaking
             with Mr. Doss, he immediately noticed that Mr. Doss
             (1) possessed a detached, zombie-like look; (2) had
             glassy, pink, bloodshot eyes; and (3) was extremely
             nervous. (Tr. 12-14.) The videotape of the traffic
             stop additionally shows that Mr. Doss was speaking

                                       -5-
              quite rapidly (See Gov. Ex. 1.) Sergeant Mangelson
              testified that each of these observations is consistent
              with the conclusion that Mr. Doss was impaired.
              (Tr. 12-14.) (Emphasis added.)

      In sum, our study of the record, including the video, leads us to conclude

that the District Court did not err in denying defendant’s motion to suppress. We

are in accord with the District Court’s order denying defendant’s motion to

suppress. Our de novo review of the record leads us to conclude, as did the

District Court, that Trooper Mangelson had a reasonable suspicion that the

defendant was driving while impaired.

      In support of our resolution of the present controversy, see, for example,

United States v. Villa-Chaparro, 115 F.3d at 801, where we spoke as follows:

              An investigative detention may be expanded beyond its
              original purpose, however, if during the initial stop the
              detaining officer acquires “reasonable suspicion” of
              criminal activity.

In determining whether the officer’s observations during the course of the stop

rise to an objectively reasonable suspicion of criminal activity, we examine the

totality of the circumstances. United States v. Arvizu, 534 U.S. 266, 273 (2002).

Under this approach, reasonable suspicion may exist even if each of the facts

noted by law enforcement is individually susceptible to an innocent explanation.

Id. at 277.

      In this same general regard, see United States v. Sharpe, 470 U.S. 675

(1984), where the Supreme Court indicated that an individual reasonably

                                          -6-
suspected of criminal activity may be detained for a period of 20 minutes, when

the detention is necessary for the law enforcement officer to conduct a limited

investigation of the suspected criminal activity.

        In Sharpe, 470 U.S. at 686, the Supreme Court also cautioned courts not to

engage in “unrealistic second-guessing” when assessing the acts of a policeman

in a “swiftly developing situation.”

        Finally, we do not believe that United States v. Wald, 216 F.3d 1222 (10th

Cir. 2000), relied on by the defendant, where we reversed a district court’s denial

of a motion to suppress, controls the outcome of the present case. The facts in

the present case are different from those in Wald. The issue in the present case is

also different. And, of course, the fact that Trooper Mangelson was involved in

both cases is only coincidental and not relevant to a resolution of the present

case.

        Judgment affirmed.

                                                    Entered for the Court



                                                    Robert H. McWilliams
                                                    Senior Circuit Judge




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