                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                      May 24, 2007
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court

 U N ITED STA TES O F A M ER ICA,

             Plaintiff-Appellee,
                                                       No. 06-8072
 v.                                                District of W yoming
                                                 (D.C. NO. 06-CR-083-B)
 D U PRE LO N ELL JA CK SO N ,

             Defendant-Appellant.



 U N ITED STA TES O F A M ER ICA,

             Plaintiff-Appellee,                       No. 06-8073
                                                   District of W yoming
 v.                                              (D.C. NO. 06-CR-083-B)

 G A RRETT D A V A RR ASS SM ITH,

             Defendant-Appellant.



                          OR D ER AND JUDGM ENT *


Before M U RPH Y, M cW ILLIAM S, and M cCO NNELL, Circuit Judges.




      *
        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. 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not binding precedent except under the doctrines of law of the case, res judicata,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.
      On January 30, 2006, Dupre Lonell Jackson and Garrett Davarrass Smith

were driving cross-country in their borrowed Honda Accord, two friends out on

the road listening to music, seeing the country, and smuggling cocaine. Their

illicit adventure ended on Interstate 80 outside Pine Bluffs, W yoming. Trooper

Dave Chatfield stopped the pair for speeding; one question led to another and

then to a search, and within twenty minutes, both men were under arrest.

      M r. Jackson and M r. Smith pled guilty to possession with intent to

distribute 500 grams or more of cocaine, as well as aiding and abetting, 21 U.S.C.

§ 841(a)(1) and (b)(1)(B), 18 U.S.C. § 2. The defendants conditioned their pleas

on the right to appeal the district court’s denial of their motions to suppress. On

August 28, 2006, the trial court sentenced M r. Jackson to thirty months

imprisonment and four years supervised release. M r. Smith was sentenced to

sixty months in prison and four years supervised release. M r. Smith filed a timely

notice of appeal on September 1, 2006, challenging both the district court’s denial

of his suppression motion and its imposition of the statutorily mandated minimum

sentence. M r. Jackson followed suit seven days later, though he challenges only

the district court’s suppression ruling. 1 W e find that the district court properly

denied the defendants’ motion to suppress and did not err by sentencing M r.




      1
        The district court determined M r. Jackson qualified for the so-called
“safety-valve” provision of 18 U.S.C. § 3553(f), which allows the court to depart
downward from the mandatory minimum in certain instances.

                                          -2-
Smith to the statutory minimum. Accordingly, we AFFIRM the judgment of the

district court. 2

                              I. M otion to Suppress

       The Fourth Amendment protects the right of citizens “to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. Const. amend. IV. The Supreme Court has made clear that a traffic stop

“constitute[s] a ‘seizure’” within the meaning of the Fourth Amendment, however

brief the detention may be. Delaware v. Prouse, 440 U.S. 648, 653 (1979).

These seizures do not offend the C onstitution, however, so long as they are

reasonable. See Brigham City v. Stuart, 126 S.Ct. 1943, 1947 (2006) (“[T]he

ultimate touchstone of the Fourth Amendment is ‘reasonableness.’”). Because “a

routine traffic stop is more analogous to an investigative detention than [to] a

custodial arrest,” United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.

1998), we judge the reasonableness of these stops by the principles developed for

investigative detentions in Terry v. Ohio, 392 U.S. 1 (1968). In brief, to be

reasonable, the law enforcement officer’s action must have been “justified at its

inception” and “reasonably related in scope to the circumstances which justified

the interference in the first place.” Terry, 392 U.S. at 20. In keeping with the


       2
        Appellants’ motions for a continuance of oral argument w ere denied.
Counsel are reminded that motions for continuance of argument should be filed as
soon as scheduling conflicts are known, and that in the absence of special
circumstances such motions, if made after the members of the Court have engaged
in substantial preparation in the case, are disfavored.

                                         -3-
deference ow ed the district court, we view the evidence in the light most

favorable to the government and accept the district court’s finding of facts unless

clearly erroneous. Fourth amendment reasonableness we decide de novo. United

States v. Gregoire, 425 F.3d 872, 875 (10th Cir. 2005).

      Detention of a motorist is justified at its inception in two circumstances:

W hen the officer has “(1) probable cause to believe a traffic violation has

occurred, or (2) a reasonable articulable suspicion that this particular motorist

violated any one of the multitude of applicable traffic and equipment regulations

of the jurisdiction.” United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir.

1999) (internal quotation marks and citations omitted). Neither defendant

challenges his detention at its inception, for good reason. Trooper Chatfield

clocked the defendants’ vehicle traveling seventy-nine miles per hour in a

seventy-five mile-per-hour speed zone, a relatively minor violation of W yoming’s

traffic laws, but a violation nonetheless. Having witnessed a traffic violation,

Chatfield was amply justified in stopping the offending motorists.

      Terry’s second prong requires the officer’s subsequent actions to be

reasonably related in scope to the circumstances which justified the stop. 392

U.S. at 20. Put another way, the detention’s scope must be tailored to fit its

underlying justification. Ozbirn, 189 F.3d at 1199. M r. Smith contends that

Trooper Chatfield exceeded the permissible bounds of the traffic stop by

questioning Smith, the car’s passenger, about his travel plans. “There is no case


                                          -4-
law,” M r. Smith insists, permitting law enforcement officers to question the

passenger in a stopped vehicle. Smith Br. 12. This argument is wholly without

merit. Our precedent explicitly and repeatedly affirms the right of an officer to

question both the driver and her passenger as part of a routine traffic stop. See,

e.g., United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir. 1989) (“Officer

Keene could legitimately ask questions relating to the identity and travel plans of

M r. Rivera and M s. Jones [the passenger] . . . , regardless of O fficer Keene’s

underlying motivation.”). Accord United States v. Galindo-Gonzales, 142 F.3d

1217, 1222-23 (10th Cir. 1998). See also United States v. Foley, 206 F.3d 802,

805 (8th Cir. 2000) (officer may question vehicle occupants besides the driver).

The Supreme Court has never questioned an officer’s right to interrogate vehicle

passengers during a valid Terry stop. See United States v. Brignoni-Ponce, 422

U.S. 873, 881-82 (1975) (officers performing vehicular Terry stops along the

border may question “the driver and passengers”). Indeed, the high court has held

that an officer may do more than converse with a passenger during a stop, he may

order a passenger from the vehicle. M aryland v. Wilson, 519 U.S. 408, 414-15

(1997). Trooper Chatfield did not convert a legitimate traffic stop into an

unconstitutional detention by asking M r. Smith about his travel plans. 3


      3
         Adjusting his argument later in his brief, M r. Smith claims “the Courts are
restricting”— present tense— “interrogation of a passenger to those items
necessary to see if [the driver’s] story was correct as to the ownership of the
vehicle.” Smith Br. 37 n.3. For this proposition he cites United States v.
                                                                            (continued...)

                                          -5-
      Once an officer has returned the motorists’ licenses and other papers and

issued any citation he intends to give, he must usually allow them to proceed on

their way without additional questioning. United States v. Patterson, 183 F.3d

1190, 1193 (10th Cir. 1999). Further detention must be justified by an

objectively reasonable suspicion of illegal activity, based on the totality of the

circumstances. U nited States v. Williams, 271 F.3d 1262, 1268 (10th Cir. 2001).

M r. Smith and M r. Jackson claim Trooper Chatfield lacked reasonable suspicion

to detain them once he issued Jackson a citation and informed him he was free to

leave. W e disagree.

      At the time Chatfield detained the two motorists in order to conduct a

canine sniff, he had observed “abnormal movement in the car by both driver and

passenger,” as if the men were concealing something beneath their seats. Smith

R. vol. 1, doc. 35 at 9-10. He knew that M r. Jackson did not have a driver’s

license. He knew that M r. Jackson’s claim never to have obtained a driver’s

license w as false— Jackson’s license w as, in fact, suspended. He had noticed M r.

Jackson sweating, fidgeting, and exhibiting other signs of extreme nervousness.

He had discovered that a third party owned the vehicle. And most significantly,

he had listened to the two men recite radically different versions of their travel


      3
          (...continued)
Guerrero-Espinoza, 462 F.3d 1302 (10th Cir. 2006). Guerrero-Espinoza says
nothing of the sort. That case dealt with a passenger’s freedom to leave the
traffic stop, not the scope of the officer’s questioning.


                                          -6-
history. M r. Jackson claimed the pair had been in Colorado for nearly a week

after driving a “cousin” out from Indiana to visit another “cousin” living in

Denver. Smith R. vol. 4, 14:16ff. W hile in the city, he said, the two men

attended the funeral of yet a third “cousin,” though Jackson admitted he and M r.

Smith were not related in any way. Smith R. vol. 4, 14:22ff. M r. Smith, on the

other hand, claimed he and Jackson had been in California and only recently

passed through Denver, where they got lost “for a couple of hours.” Smith R. vol.

1, doc. 35 at 10.

      W e have held that nervousness, United States v. Soto, 988 F.2d 1548, 1556

(10th Cir. 1993), and ownership of a vehicle by a third party, United States v.

M endez, 118 F.3d 1426, 1431 (10th Cir. 1997), can lend support to a finding of

reasonable suspicion as part of the totality of the circumstances. The defendants’

implausible, inconsistent travel stories are the most important factor in this case,

however. M r. Jackson characterizes the differences in the men’s stories as minor,

but in fact the discrepancies are startling. Jackson and Smith could not agree

even on which state they had recently visited, much less the purpose of their trip.

W hen the driver asserts he has passed a week in Denver and the passenger claims

to have been in California, while both men insist they have been traveling

together the entire time, either there is a tear in the space-time continuum or

someone is not telling the truth. W e have found that inconsistent, unbelievable




                                          -7-
travel narratives can give rise to reasonable suspicion. United States v. Kopp, 45

F.3d 1450, 1453-54 (10th Cir. 1995). This travel story certainly qualifies.

      The defendants argue that at least one of the district court’s factual findings

is clearly erroneous— namely, the court’s finding that they were moving about

suspiciously in the car before Trooper Chatfield first approached the vehicle.

They claim the videotape of the stop shows no such movement and that, further,

the district court promised from the bench it would not rely on nervousness in

ruling on the motion to suppress. Having reviewed the videotape of the stop, w e

conclude the district court’s finding is not clearly erroneous. The defendants can

be seen fidgeting in the car as the officer approaches, perhaps moving items at

their feet. M r. Smith continues to fidget and reach towards the floor while

Trooper C hatfield questions M r. Jackson in the patrol car.

      As to the district court’s supposed promise not to take the defendants’

nervous behavior into account when ruling, we note that the statement in question

came in response to M r. Smith’s insistence that the court view the videotape in

full during the suppression hearing. Rather than halt the hearing to view the

recording, the court pledged to “assume” M r. Smith’s representations about his

conduct in the vehicle were accurate. W e do not understand the court’s comment

as a pledge to rule one way or another, or to make a particular factual finding, but

rather as an assumption arguendo made to facilitate the defendants’ presentation.




                                         -8-
The record supports the court’s factual finding, and in any event, nervousness is

but a minor factor in this case, which does not affect the result.

      The defendants go on to suggest that none of the factors, standing alone,

justified Trooper Chatfield in detaining them. This argument is misconceived.

W e have said time and again that factors supporting reasonable suspicion must be

considered as a whole. Cortez v. M cCauley, 478 F.3d 1108, 1123 (10th Cir.

2007) (en banc) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). As

it happens, the discrepancies in this case between the defendants’ travel tales

were so chasmic that factor alone would have given rise to reasonable suspicion.

Aggregating the factors only makes Trooper Chatfield’s suspicion that much more

reasonable.

      Trooper Chatfield possessed reasonable suspicion at the time he returned

the license and registration papers to M r. Jackson and excused him from the

patrol car. M r. Smith’s contention that he w as not able to converse with M r.

Jackson before Chatfield began posing more questions, and therefore could not

offer valid consent for Chatfield to search the car, is irrelevant. Trooper

Chatfield did not need M r. Smith’s consent to conduct a canine sniff— the officer

possessed reasonable suspicion— and in any event, M r. Smith did not give it.

      Based on the facts as found by the district court, we conclude Trooper

Chatfield did not violate the defendants’ Fourth Amendment rights.




                                          -9-
                            II. M r. Sm ith’s Sentence

      M r. Smith contends that the statutorily prescribed minimum sentence he

received violates his Sixth Amendment rights. His attorney refers this Court to

Apprendi v. New Jersey, 530 U.S. 466 (2000), Harris v. United States, 536 U.S.

545 (2002), and United States v. Booker, 543 U .S. 220 (2005). None of these

cases stands for the proposition he claims. In fact, the Supreme Court in Harris

upheld a mandatory minimum sentence even though it was premised on judicial

fact finding. 536 U.S. at 557. Booker did not purport to overrule Harris or the

Court’s line of cases, stretching back to M cM illan v. Pennsylvania, 477 U.S. 79,

93 (1986), which affirms congressional authority to prescribe mandatory

minimum sentences by statute.

      W e have addressed this precise issue before, in precedent M r. Smith’s

attorney neglected to cite. Booker, we said in United States v. Harris, 447 F.3d

1300, 1307 (10th Cir. 2006), “does not apply to statutory minimum sentences.”

M r. Smith’s Sixth Amendment rights were not violated.

                                 III. Conclusion

      W e AFFIRM the judgment of the district court.



                                               Entered for the Court,


                                               M ichael W . M cConnell
                                               Circuit Judge


                                        -10-
