                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               April 26, 2007
                                    TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                             No. 06-1226
 RAMON MARTINEZ, a/k/a Eidi                           (D.C. No. 04-CR-00429-MSK)
 Burciaga-Orosco,                                               (D. Colo.)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT *


Before MCCONNELL, BALDOCK, and TYMKOVICH, Circuit Judges.**


       A jury found Defendant Ramon Martinez guilty of distributing or aiding and abetting

the distribution of 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841

and 18 U.S.C. § 2; and conspiracy to commit the same in violation of 21 U.S.C. § 846. The

district court sentenced Defendant to 360 months imprisonment. Prior to trial, Defendant

filed two motions to suppress. Defendant’s first motion sought to suppress large sums of

cash uncovered during a traffic stop. Defendant’s second motion sought to suppress


       *
         This order and judgment is not binding precedent except under the doctrines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.
       **
         After examining the briefs and appellate record, this panel 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.
incriminating conversations the Government recorded pursuant to a wiretap. The district

court denied both motions. Defendant argues on appeal the district court erred because (1)

the officer lacked reasonable suspicion to detain him beyond the time necessary to issue a

citation, and thus his consent to search the vehicle was the fruit of an unlawful detention; and

(2) the Government failed to establish the wiretap was necessary as required by statute. We

have jurisdiction under 28 U.S.C. § 1291. Finding no reversible error, we affirm.

                                               I.

       The historical facts are not in dispute. On January 28, 2004, agents of the Bureau of

Alcohol, Tobacco, and Firearms (ATF) and officers from the Colorado Springs Police

Department arrested Adelaida Meza-Chaidez following a controlled purchase of

methamphetamine. At the time of her arrest, Meza-Chaidez possessed approximately 580

grams of methamphetamine and $2,806 in cash. Officers also seized a ledger containing

names and phone numbers of suspected drug customers and suppliers. In exchange for

immunity from prosecution in federal court, Meza-Chaidez agreed to cooperate with law

enforcement. Meza-Chaidez identified Defendant as the owner of the drugs. She explained

Defendant operated a large drug-trafficking organization that transported methamphetamine

and cocaine from Phoenix, Arizona to Colorado Springs and Denver, Colorado. She also

consented to record telephone calls to Defendant.

       In an unusual turn of events, on February 2, 2004, Thomas Neve, an officer with the

Arizona Department of Public Safety, was patrolling Interstate 40 westbound in Coconino

County, Arizona, when he observed a pickup truck that appeared to have excessively dark

                                               2
tinted windows. Officer Neve could not see any occupants in the vehicle, which caused him

to believe the windows “were way too dark” and in violation of Arizona law. He proceeded

to stop the truck. Officer Neve approached the driver, later identified as Defendant, and

asked for his driver’s license, registration, and insurance. Defendant produced a Mexican

driver’s license identifying him as Osma Galaviz, and a vehicle registration showing the

truck was registered in Des Moines, Iowa, under another person’s name.

       Officer Neve asked Defendant to step out of the truck and wait by his patrol car.

Officer Neve then proceeded to question Defendant’s passenger, Christina Alvarado, about

the nature of the trip. Alvarado responded they were on their way to visit Defendant’s sister

Elsa, and that she lived at 20th Street and Indian School in Phoenix. Alvarado further stated

she lived with Defendant in Albuquerque, New Mexico. Using a window-tint meter, Officer

Neve tested the window’s tint. The tint was three percent, an amount exceeding the darkness

Arizona law allows.

       While preparing the citation, Officer Neve questioned Defendant about the nature of

the trip. Defendant told Officer Neve they were on their way to visit his sister Chris.

Defendant told Officer Neve his sister lived at 20th Avenue and Indian School in Phoenix.

Defendant further stated he lived in Iowa. Defendant’s response struck Officer Neve as odd

because it was inconsistent with Alvarado’s statements. While Defendant and Alvarado

provided slightly differing addresses for Defendant’s sister’s home, Office Neve testified this

was significant because the addresses were on opposite sides of Phoenix. Officer Neve ran

the status of Defendant’s Mexican driver’s license in Arizona, New Mexico, and Iowa, but

                                              3
found no records. Suspicious, Officer Neve called for a backup unit.

       When Officer Neve finished writing the citation, he handed the citation to Defendant

along with his driver’s license and vehicle registration. Officer Neve then asked Defendant

if he had any large sums of cash, weapons, or illegal drugs. Defendant initially stated he did

not, but then corrected himself by stating he only had cash for gas and travel. Defendant

consented to a search of the truck and signed a Spanish-language consent form. Defendant

spoke in Spanish but seemed to understand Officer Neve. Officer Neve communicated with

Defendant in both Spanish and English. Prior to searching his truck, Officer Neve patted

down Defendant as a safety precaution. Officer Neve noticed bulges in Defendant’s front

pockets. When asked about the nature of the bulges, Defendant responded it was cash.

Defendant pulled the cash from his pockets and told Officer Neve it was “about $4,000.”

Officer Neve took the cash and placed it in the windshield of his patrol car so Defendant

could see it.

       During the search, Officer Neve found a handgun inside Alvarado’s purse. Officer

Neve arrested Alvarado for possession of a concealed weapon and placed her in the back of

the patrol car. For safety reasons, Officer Neve handcuffed Defendant, but explained to him

he was not being arrested. Around that time, Officer Joe Lapre and his dog arrived at the

scene. Officer Lapre took the cash that Officer Neve had recovered from Defendant and

placed it underneath the hood of the truck. Officer Lapre then walked his dog around the

truck. The dog detected a scent of drugs in a duffle bag in the bed of the truck. A search of

the bag uncovered another $4,000 in cash. The dog also alerted to the cash under the hood

                                              4
of the truck. Officer Neve removed Defendant’s handcuffs and asked him to follow him

back to the highway patrol office. At the office, Officer Neve initiated forfeiture proceedings

on the money. Officer Neve also issued Alvarado a citation for misdemeanor possession of

a firearm and released her. Officer Neve returned $50 to Defendant for travel expenses, and

allowed Defendant and Alvarado to go on their way.

       During the search of the truck, Officer Neve also recovered four cell phones. He

wrote down the numbers listed as ingoing and outgoing calls, and turned the information

over to the Federal Drug Enforcement Administration (DEA). Agent John Preeg, the lead

DEA agent in this case, noticed one of the phone numbers matched a number recovered from

Meza-Chaidez’s ledger. Meza-Chaidez had identified the number as belonging to Defendant.

       After further attempts to use Meza-Chaidez in the investigation into Defendant’s drug

distribution ring failed, Agent Preeg applied for a wiretap authorization for two phone

numbers purportedly belonging to Defendant. Agent Preeg submitted an affidavit in support

of the wiretap in which he explained that normal and routine investigative techniques would

be ineffective. Where such techniques had been used, he explained, they either failed

entirely or had limited success , thus failing to achieve the full objectives of the investigation.

He further explained traditional techniques were unlikely to succeed if tried or were too

dangerous to implement. Following a hearing, on March 10, 2004, the district court granted

the application reasoning “that an interception is necessary in this case” because “it appears

that there is no other way to get the necessary information that [the Government] require[s]

under the statute other than with an interception.” The district court extended the application

                                                5
on April 9, 2004 and again on May 7, 2004. Following the investigation, a grand jury

indicted Defendant.



                                             II.

       In challenging the denial of his motion to suppress the cash uncovered during the stop

of his vehicle, Defendant does not argue Officer Neve lacked reasonable suspicion to detain

him based on Officer Neve’s observation of a traffic violation. See e.g. United States v.

Bostero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc) (“[A] traffic stop is valid under

the Fourth Amendment if the stop is based on an observed traffic violation.”). Rather,

Defendant argues Officer Neve unlawfully detained him beyond the time it took to effectuate

the purpose of the stop. According to Defendant, Officer Neve lacked reasonable suspicion

of criminal activity to continue detaining him after Officer Neve returned his paper work and

issued him a citation. Consequently, Defendant argues his consent to search the truck was

the fruit of an unlawful detention.

       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.” Delaware v.

Prouse, 440 U.S. 648, 653 (1979). A traffic stop is reasonable if (1) the officer’s action was

justified at its inception, and (2) the officer’s action was reasonably related to the

circumstances which justified the stop in the first place. See United States v. Bradford, 423

F.3d 1149, 1156 (10th Cir. 2005).         We review a district court’s determination of

reasonableness de novo. See Rosborough, 366 F.3d at 1148.

                                              6
       An officer conducting a traffic stop may request a driver’s license, vehicle

registration, run a computer check, and issue a citation. See United States v. Zubia-

Melendez, 263 F.3d 1155, 1161 (10th Cir. 2001). Once an officer completes these tasks, the

officer must allow the driver to proceed on his way without being subject to further delay by

police for additional questioning. See id.; see also United States v. Edgerton, 438 F.3d 1043,

1047 (10th Cir. 2006). Absent a consensual encounter, further detention for purposes of

questioning unrelated to the initial traffic stop is permissible if the officer has an objectively

reasonable and articulable suspicion that illegal activity has occurred or is occurring. See

Zubia-Melendez, 263 F.3d at 1161. Reasonable suspicion exists where an officer has a

“particularized and objective basis for suspecting legal wrongdoing.” United States v.

Arvizu, 534 U.S. 266, 273 (2002). We determine whether reasonable suspicion exists from

the totality of the circumstances. See id.

       We agree with the district court that Officer Neve developed reasonable suspicion

during the traffic stop to justify Defendant’s continued detention after he returned

Defendant’s paperwork and issued him a citation for excessive window tinting. We have

previously held that contradictory answers to an officer’s questions can contribute to

reasonable suspicion of illegal activity. See, e.g., Zubia-Melendez, 263 F.3d at 1162

(reasonable suspicion existed where passenger and driver did not know each other’s name

and provided inconsistent answers regarding where they had spent the night). See also

United States v. Wallace, 429 F.3d 969, 976 (10th Cir. 2002) (reasonable suspicion present

where the driver and passenger gave the officer inconsistent answers regarding their

                                                7
relationship and the type of motorcycle they were transporting). Undoubtedly, some of the

factors Officer Neve cited as making him suspicious may, standing alone, be dismissed as

innocent or susceptible to varying interpretations. Nevertheless, a “determination that

reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.”

Arvizu, 534 U.S. at 277. When determining whether a detention is supported by reasonable

suspicion, we must “defer to the ability of a trained law enforcement officer to distinguish

between innocent and suspicious actions.” Zubia-Melendez, 263 F.3d at 1162; see also

Arvizu, 534 U.S. at 273-74 (noting officers may draw from their own experience and

specialized training to make inferences that may very well elude an untrained person).

Slightly conflicting answers, such as those Defendant and Alvarado gave to Officer Neve,

may establish a particularized and objective basis for reasonable suspicion, notwithstanding

that each of the factors alone is susceptible to innocent explanation. See Arvizu, 534 U.S.

at 277; see also United States v. Sokolow, 490 U.S. 1, 9 (1989) (holding a factor may

contribute to reasonable suspicion even where it “is not by itself proof of any illegal conduct

and is quite consistent with innocent travel”). The inconsistencies, seen through the eyes of

a trained law enforcement officer, support a finding of reasonable suspicion and justified

Defendant’s prolonged detention. Because Defendant voluntarily consented to a search of

his truck while lawfully detained, no basis exists for suppressing the evidence uncovered

during the search.3



       3
         Defendant also argues Officer Neve violated his Fourth Amendment rights when
the officer unreasonably prolonged the traffic stop by conducting additional investigation

                                              8
                                             III.

       Defendant also challenges the district court’s order denying his motion to suppress

conversations the Government recorded pursuant to a wiretap. He argues the affidavits in

support of the wiretap application and subsequent extensions did not establish a necessity for

the wiretap as required under Title III of the Omnibus Crime Control and Safe Streets Act

of 1968. See 18 U.S.C. §§ 2518(1)(c), 2518(3)(c). More specifically, Defendant argues the

affidavits failed to state with particularity why the Government did not pursue traditional

investigative techniques, but instead, contained boilerplate language that could be applied

to all drug conspiracy cases. We review for an abuse of discretion a district court’s

determination a wiretap is necessary. See United States v. Ramirez-Encarnacion, 291 F.3d

1219, 1222 (10th Cir. 2002).



unrelated to the window tint. According to Defendant, the “undisputed facts” establish
that writing a citation for illegal window tinting would have taken six minutes, but that in
this case Officer Neve took twice that long because of the officer’s decision to conduct an
investigation unrelated to the purpose of the stop. The record, however, does not support
Defendant’s argument. The record shows that upon stopping Defendant, Officer Neve
obtained Defendant’s driver’s license, registration, and insurance papers; ran the status of
Defendant’s license and the vehicle’s registration; measured the tint level of the truck’s
window; and discussed with Defendant and Alvarado their travel plans. As he did these
things, he completed writing the citation. Officer Neve did not conduct any investigation
unrelated to the purpose of the stop. As part of a routine traffic stop, an officer may “ask
questions about the motorist’s travel plans and authority to operate the vehicle” in
addition to obtaining a motorist’s documentation, running a computer check, questioning
a passenger about travel plans, and issuing a citation. United States v. Alcaraz-Arellano,
441 F.3d 1252, 1258 (10th Cir. 2006). Presumably, had Officer Neve not verified
Defendant’s documentation or asked any questions he would have completed the citation
sooner. Nevertheless, Officer Neve’s conduct was related to the purpose of the traffic
stop and sanctioned by our precedent.


                                              9
       An order authorizing a wiretap is presumed proper, and a defendant challenging its

authorization bears the burden of proving its invalidity. See United States v. Castillo-Garcia,

117 F.3d 1179, 1186 (10th Cir. 1997), overruled on other grounds by Ramirez-Encarnacion,

291 F.3d at 1221, n. 1. In order to obtain a wiretap, the Government must, among other

things, show the wiretap is necessary. See 18 U.S.C. §§ 2518(1)(c), 2518(3)(c). The

Government establishes necessity by showing “traditional investigative techniques have been

tried unsuccessfully, reasonably appear to be unsuccessful if tried, or are too dangerous to

attempt.” Ramirez-Encarnacion, 291 F.3d at 1222. Where the Government does not

implement traditional investigative techniques, it must explain why with particularity. See

Castillo-Garcia, 117 F.3d at 1187-88. Traditional investigative techniques include (1)

standard visual and aural surveillance; (2) questioning of witnesses or participants (including

the use of grand juries and the grant of immunity if necessary); (3) use of search warrants;

(4) infiltration of conspiratorial groups by undercover agents or informants; and (5) pen

registers and trap and trace devices. United States v. Vanmeter, 278 F.3d 1156, 1163-64

(10th Cir. 2002). We conduct our review of the Government’s demonstration of necessity

“in a practical and commonsense fashion” considering “all of the facts and circumstances in

order to determine whether the government’s showing of necessity is sufficient to justify a

wiretap.” Castillo-Garcia, 117 F.3d at 1187.

       Having thoroughly reviewed the affidavits in support of the wiretap application and

subsequent extensions, we agree with the district court the Government properly established

a necessity for a wiretap. We need not recount here the Government’s extensive description

                                              10
of its efforts to implement the traditional investigative techniques described above, or its

explanation as to why some of these techniques would not aid in the investigation. Suffice

it to say, the forty-seven page affidavit in support of the application and the affidavits in

support of the extensions explain with sufficient detail the investigative efforts the

Government undertook and explain with particularity the reasons why the Government did

not pursue certain traditional investigative techniques.

       Defendant has randomly quoted portions of the affidavits in arguing the affidavits

contain boilerplate statements applicable to the vast majority, if not all, drug conspiracies.

Unsurprisingly, however, many drug conspiracies share similar characteristics and their

investigation presents similar difficulties for law enforcement. Generalities alone “are

insufficient to support a wiretap application.” Castillo-Garcia, 117 F.3d at 1188. But

generalities “can be made so long as they are accompanied by specific information about

how these generalities apply to the particular suspects and/or particular investigation.”

United States v. Mascarenas, 30 Fed. Appx. 784, 794, n. 10 (10th Cir. 2002) (unpublished).

To the extent the Government’s affidavit contains some generalities, these generalities are

accompanied by information pertinent to this investigation.

       By way of example, Defendant points out the Government rejected the use of

undercover agents as unlikely to be fruitful because, in the words of the Government, “drug

traffickers do not like to introduce associates to their suppliers.” Defendant argues such

generalities apply to all drug conspiracies and are insufficient to support a finding of

necessity. The affidavit, however, says much more in this regard. The affidavit provides a

                                             11
description of how Defendant’s drug-trafficking operations worked in Colorado, and explains

that Defendant only did business with a few individuals who had been in the organization for

a long time. The affidavit goes on to explain the difficulties associated with an attempt to

infiltrate Defendant’s operation. In particular, the affidavit explains that if an undercover

agent were introduced, a relationship other than that of a drug buyer to drug seller would

unlikely exist, and that Defendant probably would not share information about suppliers with

a street-level buyer. Contrary to Defendant’s argument, the affidavit explains in more than

generalities that the tight-knit nature of Defendant’s operation made infiltration into the

conspiracy impracticable. 4 The Government’s affidavits sufficiently established necessity

as defined by the wiretap statute and understood by our precedent. Therefore, no basis exists

for suppressing the recorded conversions.

       AFFIRMED.

                                            Entered for the Court,



                                            Bobby R. Baldock
                                            Circuit Judge




       4
         Defendant also argues the Government used minimal investigative efforts before
seeking a wiretap. Defendant argues, for example, that the Government should have
attempted to infiltrate the organization through the use of undercover agents. We have
explained, however, that “the government need not exhaust . . . every conceivable
investigative technique before resorting to wiretapping.” Castillo-Garcia, 117 F.3d at
1188. Rather, we have “required the government to prove exhaustion–either by attempt
or explanation of why the method would not work–of all reasonable investigative
methods.” Id. The Government met its obligation in this case.

                                              12
