     Case: 12-30387       Document: 00512108955         Page: 1     Date Filed: 01/10/2013




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

                                                                            FILED
                                                                         January 10, 2013
                                     No. 12-30387
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

PATRICIA FAJARDO-GUEVARA,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:10-CR-151-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       During a traffic stop in East Baton Rouge Parish, a search of Patricia
Fajardo-Guevara’s (Fajardo) car following a positive canine (K-9) alert uncovered
several bundles of cocaine in a hidden compartment. She subsequently was
charged by indictment with one count of possession with intent to distribute five
kilograms or more of a substance containing a detectable quantity of cocaine.
Fajardo filed a motion to suppress the seized cocaine, arguing that, during the
traffic stop, she was illegally detained after the issuance of a verbal warning

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-30387

because the officer had no reasonable suspicion of additional criminal activity.
Following a suppression hearing, the district court denied Fajardo’s motion. She
proceeded to trial, and a jury found her guilty as charged. The district court
sentenced her to 121 months of imprisonment.
      Fajardo now appeals the denial of her motion to suppress. In such
instances, we review the district court’s factual findings for clear error and its
conclusions of law de novo. United States v. Pack, 612 F.3d 341, 347 (5th Cir.
2010). The evidence is viewed in the light most favorable to the party that
prevailed below, in this case, the Government. Id.
      “The stopping of a vehicle and detention of its occupants constitutes a
‘seizure’ under the Fourth Amendment.” United States v. Brigham, 382 F.3d 500,
506 (5th Cir. 2004) (en banc). A limited search and seizure is permissible under
the Fourth Amendment, even in the absence of probable cause, when “there is
a reasonable and articulable suspicion that a person has committed or is about
to commit a crime.” United States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000).
The legality of a traffic stop is examined under the two-pronged analysis
described in Terry v. Ohio, 392 U.S. 1 (1968). Brigham, 382 F.3d at 506. First,
the court examines whether the officer’s action was justified at its inception;
second, the court determines whether the officer’s subsequent actions were
reasonably related in scope either to the circumstances that justified the stop,
or to dispelling a reasonable suspicion developed during the stop. Id. at 506, 507.
      The first part of the two-part Terry inquiry is not at issue in this case.
Fajardo does not contend that the officer, Corporal Tommy Banks, lacked
justification in stopping her for crossing in and out of the travel lanes without
using a turn signal. Instead she asserts that the illegal detention began after
Corporal Banks returned her documents and issued a verbal warning in lieu of
a ticket. Fajardo argues that nothing discovered during the investigation of the
traffic violation indicated she was involved in criminal activity. According to
Fajardo, who is a citizen of the Dominican Republic, the suspicious behavior

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                                  No. 12-30387

identified by Corporal Banks can be explained by her insufficient grasp of the
English language and her struggle to interact with Banks, which she claims is
evident from the video recording of the traffic stop. She also challenges Corporal
Banks’s assertion that she was excessively nervous.          With these factors
eliminated, Fajardo argues that the Government cannot exclusively rely on her
travel route from a known source area for illegal narcotics (Texas) for reasonable
suspicion of additional criminal activity.
      In order to prolong a detention after issuing a citation or determining that
no citation should be issued, an officer must have developed a reasonable
suspicion of additional criminal activity in the course of the stop and before the
initial purpose of the stop has been fulfilled. United States v. Cavitt, 550 F.3d
430, 436-37 (5th Cir. 2008). “If the officer develops reasonable suspicion of
additional criminal activity during his investigation of the circumstances that
originally caused the stop, he may further detain its occupants for a reasonable
time while appropriately attempting to dispel this reasonable suspicion.” Pack,
612 F.3d at 350. “Reasonable suspicion exists when the detaining officer can
point to specific and articulable facts that, when taken together with rational
inferences from those facts, reasonably warrant the search and seizure.” United
States v. Estrada, 459 F.3d 627, 631 (5th Cir. 2006). The determination of
whether Corporal Banks had developed a reasonable suspicion must be based on
“the totality of the circumstances” and his “collective knowledge and experience.”
Id. at 631-32.
      At the suppression hearing, Corporal Banks testified that he was assigned
to the highway interdiction unit, as well as the High Intensity Drug Trafficking
Area task force. He also was a certified narcotics K-9 handler and had been
working with his dog for two years. Corporal Banks then articulated several
facts that led him to suspect that Fajardo may have been involved in criminal
activity (specifically, illegal narcotics trafficking) before Banks decided to
prolong the detention. First, Corporal Banks found her story to be implausible.

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Corporal Banks testified unequivocally that Fajardo was able to answer his
“simple questions,” “respond[ing] just like anyone who spoke the English
language and understood it would.” On the other hand, he testified, Fajardo
could not recall the name of the city in Texas from which she was traveling.
Based on his training and experience, he felt that Fajardo was concealing the
name of the city, as drug smugglers typically do not like to reveal the name of
the city from which they are traveling. Corporal Banks also found it suspicious
that Fajardo could not identify any title for her profession.         According to
Corporal Banks, “[i]t went past the language barrier,” e.g., “[i]f you were there
a week, you would think you could remember what city . . . you were in[,] . . . if
[you] are getting a job there, you may move there.” While Fajardo’s answers
may be susceptible to an innocent explanation, such as a language barrier, that
possibility does not negate the reasonableness of the officer’s suspicions based
on this training and experience. See Illinois v. Wardlow, 528 U.S. 119, 125-26
(2000) (holding that the possibility someone might flee from police for innocent
reasons does not negate reasonable suspicion of criminal activity); United States
v. Holloway, 962 F.2d 451, 459 (5th Cir. 1992) (“Factors that ordinarily
constitute innocent behavior may provide a composite picture sufficient to raise
a reasonable suspicion . . . .”).
      Corporal Banks also testified that his suspicion was aroused, in part,
during the traffic stop because Fajardo’s hands were constantly shaking, which
intensified as they approached her car for insurance documents. He further
testified that Fajardo’s carotid artery was visibly pulsating and that she tried to
hide her shaking hands behind her back.            According to Corporal Banks,
Fajardo’s level of nervousness “surpassed the normal nervousness . . . see[n] on
a traffic stop.” Fajardo has not shown that the district court clearly erred in
accepting Corporal Banks’s testimony that she was overly nervous. See United
States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005).



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      Based on the foregoing, the district court did not err when it determined
that the above facts, as articulated by Corporal Banks, established reasonable
suspicion justifying, at the very least, the four minutes of detention between the
end of the traffic stop and Banks’s walking his K-9 around Fajardo’s car.
Moreover, there is no evidence that Corporal Banks did not diligently pursue a
means of investigation that was likely to confirm or dispel his suspicions quickly.
See Pack, 612 F.3d at 361-62. Nor has Fajardo shown that the scope of the
investigation that Corporal Banks conducted during the detention was
unreasonable in light of the suspicious facts he had observed. See United States
v. Zamora, 661 F.3d 200, 208 (5th Cir. 2011), cert. denied, 132 S. Ct. 1771 (2012).
      Accordingly, the district court did not err in finding that Corporal Banks
had articulated specific facts demonstrating that additional reasonable suspicion
existed and concluding that the prolonged detention was consonant with
Fajardo’s Fourth Amendment rights. See Pack, 612 F.3d at 362.
      AFFIRMED.




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