                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 06a0093p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                      X
                                 Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                       -
                                                       -
                                                       -
                                                           Nos. 04-5440; 05-5373
            v.
                                                       ,
                                                        >
 JAIME PEREZ (04-5440); WALTER RHODES                  -
                                                       -
                            Defendants-Appellants. -
 (05-5373),

                                                       -
                                                      N
                        Appeal from the United States District Court
                     for the Middle District of Tennessee at Nashville.
                  No. 02-00165—Thomas A. Wiseman, Jr., District Judge.
                               Argued (05-5373): January 18, 2006
                              Submitted (04-5440): January 26, 2006
                               Decided and Filed: March 14, 2006
                   Before: GUY, SUTTON, and McKEAGUE, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Lacey T. Smith, Louisville, Kentucky, for Appellant. Paul M. O’Brien, ASSISTANT
UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee. ON BRIEF: Lacey T.
Smith, Louisville, Kentucky, Peter J. Strianse, TUNE, ENTREKIN & WHITE, Nashville,
Tennessee, for Appellants. Chasity F. Goodner, Robert Anderson, ASSISTANT UNITED STATES
ATTORNEY, Nashville, Tennessee, for Appellee.
                                        _________________
                                            OPINION
                                        _________________
        RALPH B. GUY, JR., Circuit Judge. Defendants Jaime Perez and Walter Rhodes both
appeal from the district court’s denial of their respective motions to suppress evidence. They
challenge the stop of the Cadillac Escalade EXT in which they were both traveling, and the search
of the unoccupied Chevrolet Tahoe from which 30 kilograms of cocaine were seized. Defendants
each challenge the legality of the stop, the scope and length of their detention, and the search of the
Tahoe. After review of the record and the arguments presented on appeal, we affirm.




                                                  1
Nos. 04-5440; 05-5373      United States v. Perez, et al.                                       Page 2


                                                   I.
        Rhodes and Perez were charged, along with Mario Flores, Jaime Barrera, Sean Starks,
Darren Montgomery, and William Johnson, in a two-count indictment with having possessed with
intent to deliver 5 kilograms or more of cocaine on September 10, 2002, and having conspired to
possess with intent to deliver 5 kilograms or more of cocaine on September 9 and 10, 2002. Flores
pleaded guilty, and Barrera was severed from the other defendants because he had not been
apprehended. The remaining defendants, Perez, Rhodes, Starks, Montgomery, and Johnson, filed
a number of pretrial motions seeking severance and the suppression of evidence obtained in
violation of the Fourth Amendment.
        After an evidentiary hearing and supplemental briefing, the district court denied all of the
defendants’ motions to suppress for the reasons stated in the order entered on June 27, 2003. Perez
entered a conditional plea of guilty to the conspiracy count, reserving the right to appeal the decision
on the suppression motions. After a joint trial held in October 2003, Rhodes was convicted on both
counts while Starks, Montgomery, and Johnson were acquitted. Perez was sentenced on February
18, 2004, to a term of 135 months in prison and 5 years of supervised release. Rhodes was
sentenced on February 17, 2005, to concurrent terms of 20 years in prison and 10 years of supervised
release. These appeals followed.
                                                  II.
         On appeal from a decision on a motion to suppress evidence, we review the factual findings
for clear error and the legal conclusions de novo. United States v. Dotson, 49 F.3d 227, 229 (6th Cir.
1995). When reviewing the denial of a motion to suppress, this court must consider the evidence
in the light most favorable to the government. United States v. Smith, 263 F.3d 571, 581 (6th Cir.
2001); United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc). Determinations
regarding reasonable suspicion and probable cause generally should be reviewed de novo, while
giving “due weight” to the factual inferences drawn by the district court. Ornelas v. United States,
517 U.S. 690, 697-98 (1996).
A.      Facts
       1.       September 9
        On September 9, 2002, Special Agent Matt Bradford, a DEA agent working in Nashville,
Tennessee, took a call from Special Agent Shane Kelly, a DEA agent from Houston, Texas,
requesting assistance with an ongoing investigation into large-scale drug trafficking that possibly
involved deliveries of cocaine or marijuana to the Middle District of Tennessee. Kelly explained
that information from a confidential source led them to believe a pearl-white 2002 Cadillac Escalade
EXT with temporary Kentucky license plates was involved in the distribution of drugs and might
be in Tennessee for that purpose. A court order had been obtained in Texas authorizing the
installation of an electronic tracking device on the Escalade, but the device had stopped working.
A second court order was issued authorizing “OnStar” to use its global positioning system to find
the location of the Escalade. Kelly requested that DEA agents in Nashville conduct “loose
surveillance” of the Escalade and attempt to retrieve the non-functioning tracking device. Bradford
advised Nashville’s acting resident agent, Billy Joe Mundy, Jr., who agreed to provide assistance.
        Later that day, Kelly advised that the OnStar system had located the Escalade in Nashville.
Mundy and two other agents met near that location in the parking lot of a Residence Inn. There they
spotted a pearl-white Escalade EXT, which had a covered truck bed and temporary Kentucky plates.
A short time later, they watched as three Hispanic males, later identified as Perez, Flores, and
Barrera, got into the Escalade and left the hotel parking lot. The agents followed in separate cars.
No illegal activity was observed, but the agents testified that the Escalade drove erratically in a
Nos. 04-5440; 05-5373      United States v. Perez, et al.                                      Page 3


manner that suggested an attempt to evade surveillance. After several maneuvers, the Escalade
turned suddenly into a gas station where Barrera got out to speak with a Hispanic female standing
by a car with its hood up. Once they spoke, she closed the hood and left. The agents followed her
to a residential area and ended their surveillance. Mundy and Bradford returned to the Residence
Inn later that evening, spotted the Escalade backing out of a parking spot in front of Room 1024, and
decided to return in the morning.
       2.      September 10 Surveillance
         When agents arrived at the Residence Inn at 11:00 a.m. on September 10, the Escalade was
parked facing Room 1024. Special Agents Jose Ramirez, James Hale, and John Hardcastle took up
surveillance in separate cars but were in constant communication both with each other and with
Mundy who monitored events from the DEA office. At about 11:15 a.m., Ramirez observed Perez
put a large black suitcase and two duffle bags into the rear of the Escalade. About five minutes later,
Perez and Flores got into the Escalade, drove around to the opposite side of the hotel, and parked
facing Room 213. Agent Hale watched as Perez and Flores went into Room 213 for about a minute
and returned, each carrying a duffle bag. They placed the bags in the passenger area of the Escalade
and drove to the front of the hotel. The Escalade idled in front of the hotel office until about 11:45
a.m., when someone came out and got into the Escalade. When the Escalade began backing up,
Ramirez drove away to avoid being detected.
        Agent Hardcastle was waiting to follow the Escalade when it left the hotel parking lot. After
several minutes passed without it coming into view, he drove into the parking lot to investigate and
found the Escalade parked adjacent to a brown 2000 Ford Explorer. Perez and Flores were standing
next to the vehicles talking to two black males who were later identified as Starks and Montgomery.
Hardcastle watched as Perez opened the tailgate of the Escalade. A black male, later identified as
Rhodes, carried two duffle bags around and put them in the back, and Perez closed and locked the
tailgate. After a brief conversation, Perez, Rhodes, Flores, and Starks got into the Escalade, while
Montgomery and Johnson got into the Explorer. Then Flores and Starks got out of the Escalade,
opened the tailgate, and each took out one of the duffle bags that had just been moved by Rhodes.
They carried the bags to a green 1996 Chevrolet Tahoe that was parked 30 feet behind the Escalade.
The duffle bags bowed as they were carried, and appeared to contain something heavy. The duffle
bags were put in the back seat of the Tahoe, and Starks pointed a device at the Tahoe and activated
the locks as they walked back to the Escalade. This time, Starks got into the Explorer and Flores
got into the Escalade. Then the Escalade and Explorer left the hotel together.
         Hardcastle, a 16-year veteran of the DEA, believed that they had observed an illicit drug
transaction involving a “dead drop” of drugs or money that would be retrieved from the Tahoe by
someone else. He suspected that the men had stayed in one room and kept the drugs or money in
the second “dead” room; that inspection of the drugs had occurred during the five-minute break in
surveillance just before he discovered the Escalade and Explorer together; and that the bags left in
the Tahoe contained drugs or money related to drug trafficking. Mundy testified that when he heard
that Perez and Flores had quickly retrieved two duffle bags from Room 213, he believed a drug
transaction was about to take place and asked that drug interdiction units be sent to the area. After
Hardcastle relayed that the two duffle bags had been moved from the Escalade to the Tahoe, Mundy
directed that the Escalade and Explorer be stopped by uniformed officers assigned to the 20th
Judicial District Drug Task Force Interdiction Unit. Mundy indicated that they should look for a
traffic violation, but conceded that he intended an investigatory stop would be made even if there
was no violation.
Nos. 04-5440; 05-5373     United States v. Perez, et al.                                    Page 4


       3.      Stop and Detention
        The Escalade and Explorer were stopped a short distance from each other and less than five
minutes from the Residence Inn. Officer Samuel Johnson stopped the Escalade for failing to use a
turn signal when changing lanes. Perez, the only individual whose identity was known at the time,
was the driver and registered owner of the Escalade. Rhodes and Flores were passengers. Officer
Johnson asked where they were coming from and obtained identification from the occupants, which
was relayed to the DEA agents. Johnson wrote a warning citation and prepared a consent to search
form while waiting for backup to arrive. Perez was given the warning citation, asked whether he
had drugs or weapons, and asked if he would consent to a search of the Escalade. Perez gave oral
and written consent to search about 15 minutes after they were first stopped. Nearby, Officer Roy
Lee stopped the Explorer; obtained identification from Montgomery, Starks, and Johnson; asked the
occupants some routine questions; and obtained Montgomery’s written consent to search the
Explorer. The occupants of each vehicle were detained near the stop, sitting and conversing in the
shade, while the consensual searches were conducted.
        A drug dog brought to the scene did not alert to either vehicle, and thorough hand searches
of both vehicles and their contents revealed no contraband. A keyless entry device was found in the
console of the Escalade, but did not seem to operate the Escalade. It was of interest because
Hardcastle had seen one used to lock the Tahoe. Agent Bradford asked Perez and then Flores about
it, and each denied that it belonged to him. Bradford questioned Rhodes about the device and
whether the Tahoe was his. Although Rhodes acknowledged that the device belonged to the Tahoe
and that the Tahoe was his, he would not answer when Bradford pressed him to give consent to
search the Tahoe. There is no dispute that at about 12:30 p.m., having completed the consensual
searches, Officers Johnson and Lee consulted with the DEA and were told to hold the occupants
while the investigation continued at the hotel.
       4.      Investigation at the Hotel
        At about noon, shortly after the Escalade and Explorer left the Residence Inn, Agent Mundy
arrived and began directing the investigation. Mundy first had Agent Hale confirm that the duffle
bag visible through the window of the Tahoe was one he had seen being carried out of Room 213.
Then Mundy sent Hale to the hotel office to obtain hotel records and access to the hotel rooms.
While Hale went to make these inquiries, a drug detection dog named “Lou” and his handler Officer
Debbie Kohl arrived. Kohl had the dog inspect the outside of the Tahoe, but the dog did not alert
to the presence of drugs. Mundy called for a second drug detection dog because he was convinced
that drugs would be found in the Tahoe and believed from his experience with other “canine sniffs”
that the duffle bags might not have been in the Tahoe long enough for Lou to alert. Although Kohl
was uncertain what time it was when she arrived, there was testimony that the bags might only have
been in the Tahoe for about 15 minutes when Lou was first taken around the vehicle.
        In the meantime, Hale did not initially receive cooperation from the hotel staff. He had an
administrative subpoena prepared by someone in the DEA office and, at 12:33 p.m., it was faxed
to the hotel. While Hale discussed with the staff whether search warrants would be necessary, a
hotel manager arrived and determined that the individuals had already checked out and that Room
213 had already been cleaned. That being the case, the manager allowed the agents access without
a search warrant. In Room 1024, agents found a receipt for Room 213 and two rolled up $1 bills
with white powder residue on them wrapped in a washcloth. The hotel records showed that Barrera
provided a Texas driver’s license and checked into Room 1024 on September 8, and that Flores
provided a Texas driver’s license and checked into Room 213 on September 9.
       Sometime after 1:00 p.m., a second drug detection dog named “Turbo” and his handler
Officer Wilfred Hunter arrived at the Residence Inn. Turbo was taken around the Tahoe at about
Nos. 04-5440; 05-5373       United States v. Perez, et al.                                       Page 5


1:30 p.m., and he alerted to the presence of drugs. Lou was brought around the Tahoe again for
training purposes, and he alerted this time as well. Hunter testified that he had not been aware of
the earlier dog’s failure to alert, but explained that the odor of drugs has to build up inside a vehicle
like smoke before it will begin to leak sufficiently to be detected by a trained drug dog. The positive
alert by Turbo (and Lou on a second try) occurred about an hour after the consensual searches of the
Escalade and Explorer had been completed and about 90 minutes after the initial stop.
        Mundy contacted the prosecutor and was advised that there was probable cause to search the
Tahoe and that a warrant would not be required. The keyless entry device did not work (apparently
because the battery had been removed), so a “slim jim” was used to get into the Tahoe. The Tahoe
was searched at about 1:45 p.m., and agents found 30 brick-like bundles of cocaine in the two duffle
bags. Other evidence, including several cellular telephones and papers, was also seized from the
Tahoe. Mundy directed that the detained individuals be arrested. They were handcuffed and taken
into custody shortly before 2:00 p.m., transported to the DEA office, and questioned.
        5.      District Court’s Findings
         Although the district court’s order addressed a number of issues raised by the various
defendants’ motions to suppress, we focus on those findings that are directly challenged by Perez
and Rhodes in the instant appeals. Specifically, Rhodes and Perez each contest the district court’s
findings (1) that the stop of the Escalade was justified by reasonable suspicion that the defendants
had been or were engaged in a drug transaction; (2) that the scope and length of the detention did
not render the stop unreasonable because there was continuous investigative activity aimed at
confirming or dispelling the suspicion; and (3) that the search of the Tahoe was valid because it was
supported by probable cause established when the second drug detection dog alerted to the Tahoe.
As for the use of a second drug dog, the district court was convinced that the first dog did not alert
because the drug odor had not had sufficient time to permeate the bags and escape from the Tahoe.
Emphasizing that the first dog also alerted when it was brought around the Tahoe a second time, the
district court concluded that the “use of the second dog was a reasonable investigative technique
under the circumstances.”
B.      Stop and Detention of Escalade and its Occupants
        “Temporary detention of individuals during the stop of an automobile by the police, even if
only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the
meaning of [the Fourth Amendment].” Whren v. United States, 517 U.S. 806, 809-10 (1996).
Because such a seizure affects the Fourth Amendment interests of all the occupants, Perez as the
driver and Rhodes as a passenger may each challenge his detention during the stop of the Escalade.
United States v. Richardson, 385 F.3d 625, 629 (6th Cir. 2004) (citing Michigan Dep’t of State
Police v. Sitz, 496 U.S. 444, 450 (1990), and Delaware v. Prouse, 440 U.S. 648, 653 (1979)). The
dual inquiry for evaluating the reasonableness of an investigative stop requires examination of
“whether the officer’s action was justified at its inception, and whether it was reasonably related in
scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392
U.S. 1, 20 (1968).
        1.      Initial Stop
         While Officer Johnson testified that he stopped the Escalade for failing to use a turn signal
when changing lanes, there was also testimony that the drug interdiction unit was directed to conduct
an investigative stop even if there was no traffic violation. If there is probable cause to believe a
traffic violation had occurred, the officer’s actual motivation is immaterial. Whren, 517 U.S. at 812-
13; United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) (en banc). An ordinary traffic stop
is like an investigative detention, the scope of which is governed by Terry principles. United States
Nos. 04-5440; 05-5373      United States v. Perez, et al.                                       Page 6


v. Hill, 195 F.3d 258, 264 (6th Cir. 1999). Once the purpose of an ordinary traffic stop is completed,
the officer may not “further detain the vehicle or its occupants unless something that occurred during
the traffic stop generated the necessary reasonable suspicion to justify a further detention.” United
States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995); see also Erwin, 155 F.3d at 822.
               a.       Traffic Violation
         Defendants do not deny the failure to signal the lane change, but argue that under state law
“the only time a driver must signal before changing lanes appears to be when that change will affect
other vehicles.” Tennessee v. Smith, 21 S.W.3d 251, 257 (Tenn. Ct. App. 1999) (interpreting Tenn.
Code Ann. §§ 55-8-142 and 55-8-143(a)). Officer Johnson agreed that not every failure to signal
a lane change would constitute a violation. Johnson conceded that although he was following the
Escalade, he was not affected by its failure to signal the lane change. Johnson also testified that he
did not see whether any other vehicles on the roadway were affected by the failure to signal. As a
result, defendants argue that Officer Johnson did not have probable cause to make the traffic stop
because a reasonable officer could not have believed the failure to signal the lane change constituted
a traffic violation under these circumstances. Significantly, the government does not rely on the
traffic violation to justify the stop, or point to anything that occurred during the traffic stop that
would give rise to reasonable suspicion that the occupants had engaged or were engaging in criminal
activity.
        The district court did not decide whether a reasonable officer could have had probable cause
to believe a traffic violation had been committed, but concluded instead that there was reasonable
suspicion at the time the stop was made to believe the occupants had been or were involved in a drug
transaction. We agree. Unlike cases in which an ordinary traffic stop was made in hopes of
generating reasonable suspicion, see, e.g., United States v. Townsend, 305 F.3d 537 (6th Cir. 2002),
this case is best analyzed as an investigative Terry stop for which reasonable suspicion was either
present or absent based on the information and surveillance that preceded the decision to have the
Escalade stopped.
               b.       Reasonable Suspicion
        Under Terry, an officer is permitted to “stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity
‘may be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7
(1989) (quoting Terry, 392 U.S. at 30). Likewise, a moving vehicle may be stopped to investigate
an officer’s reasonable and articulable suspicion that its occupants had engaged, were engaging, or
were about to engage in criminal activity. United States v. Hensley, 469 U.S. 221, 226-27 (1985);
United States v. Place, 462 U.S. 696, 702 (1983). Courts must determine from the totality of the
circumstances whether law enforcement had an objective and particularized basis for suspecting
criminal wrongdoing. United States v. Arvizu, 534 U.S. 272, 273-77 (2002); United States v.
Orsolini, 300 F.3d 724, 728-29 (6th Cir. 2002).
         Perez argues that the stop was based on nothing more than constitutionally inadequate
“hunches,” and Rhodes contends that the agents simply observed innocent activities normally
associated with checking out of a hotel. While reasonable suspicion must be based on more than
“ill-defined hunches,” officers may “draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available to them that ‘might well
elude an untrained person.’” Arvizu, 534 U.S. at 273 (quoting United States v. Cortez, 449 U.S. 411,
418 (1981)). In considering the totality of the circumstances, “we must determine whether the
individual factors, taken as a whole, give rise to reasonable suspicion, even if each individual factor
is entirely consistent with innocent behavior when examined separately.” United States v. Smith,
263 F.3d 571, 588 (6th Cir. 2001) (citing Sokolow, 490 U.S. at 9).
Nos. 04-5440; 05-5373       United States v. Perez, et al.                                        Page 7


       The factors to be aggregated in this case begin with the fact that the pearl-white Escalade
EXT with temporary Kentucky plates came under surveillance at the request of one DEA office to
another because it was believed it might be involved in transporting cocaine and marijuana from
Houston, Texas, to the Middle District of Tennessee. That same day, the Escalade was found where
OnStar indicated it would be, was seen driving in an erratic manner that suggested an attempt to
evade surveillance, and was observed in an apparent rendezvous with an unidentified Hispanic
female at a gas station.
        These facts must be viewed in conjunction with the activities observed at the Residence Inn
the next morning. First, after loading luggage into the Escalade outside Room 1024, Perez and
Flores drove around the hotel, went into Room 213 very briefly, and came out carrying the duffle
bags that were later retrieved from the Tahoe. This suggested to the experienced DEA agents that
the second room had been used to store drugs or money, while the men spent the night in the first
room. Then, after waiting outside the front office for someone to come out, the Escalade did not
leave the hotel as expected. It was found a few minutes later, parked adjacent to the Explorer. The
duffle bags were then moved from the passenger area to the rear of the Escalade, and the individuals
spoke briefly before climbing into the Escalade and Explorer. But before leaving, Flores and Starks
stepped out of the Escalade and transferred the heavy-looking duffle bags to the Tahoe. Agent
Hardcastle testified that he believed that the activities they observed represented an ongoing drug
transaction and that he had just witnessed a transfer of drugs or money to the Tahoe for someone
else to retrieve.
        Although each of the observations might individually have an innocent explanation, taking
the circumstances together and giving due weight to the reasonable inferences drawn by the agents
based on their experience, we are satisfied that the totality of circumstances provided an objective
and particularized basis to believe the Escalade and its occupants were engaged in an illicit drug
transaction. Accordingly,  there was reasonable suspicion to support the request for an investigative
stop of the Escalade.1
        2.      Continued Detention
        The second part of the Terry inquiry examines whether the stop was “reasonably related in
scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20.
[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the
purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). The investigative means used
should also be the least intrusive means reasonably available to verify or dispel the officer’s
suspicions in a short period of time. Id. The Supreme Court has rejected a rigid time limitation on
the lawfulness of a Terry stop, and “emphasized the need to consider the law enforcement purposes
to be served by the stop as well as the time reasonably needed to effectuate those purposes.” United
States v. Sharpe, 470 U.S. 675, 685 (1985). To assess whether a detention was too long to be
justified as an investigative stop, courts should “examine whether the police diligently pursued a
means of investigation that was likely to confirm or dispel their suspicions quickly, during which
time it was necessary to detain the defendant.” Id. at 686.
        At the scene of the stop, Officer Johnson obtained identification from the occupants of the
Escalade and within 15 minutes of the stop had issued the warning citation and obtained consent to
search the Escalade. Perez does not challenge the validity of his consent; and neither Perez nor
Rhodes argues that the consensual search unlawfully extended the duration of the stop. See Erwin,


        1
         Defendants emphasize that no criminal activity was witnessed during the surveillance on September
9 or 10. While true, this misses the point because if any criminal activity had been observed, our inquiry
would be whether probable cause existed.
Nos. 04-5440; 05-5373       United States v. Perez, et al.                                       Page 8


155 F.3d at 823; United States v. Burton, 334 F.3d 514, 517-18 (6th Cir. 2003). Rather, the question
presented by both Perez and Rhodes is whether the investigative detention, assuming it was initially
supported by reasonable suspicion, became constitutionally unreasonable when it continued after
the consensual searches were completed. Once officers use “all of the appropriate means available
to them to allay their concerns of criminal activity,” they may not further detain a suspect absent
probable cause. United States v. Heath, 259 F.3d 522, 530 (6th Cir. 2001).
        Specifically, defendants contend that the failure of the first drug dog to alert on the Tahoe
served to completely dispel the reasonable suspicion such that they could not be detained after
completion of the consensual searches absent a showing of probable cause. Although not called to
this court’s attention by the parties, resolution of this issue merits some discussion of the recent
decision in United States v. Davis, 430 F.3d 345 (6th Cir. 2005). There, the majority concluded that
law enforcement had reasonable suspicion to believe Davis’s vehicle contained drugs and that it was
constitutionally reasonable to detain the vehicle for 30 minutes while a drug detection dog was
brought to the scene to confirm or dispel that suspicion. When that drug-sniffing dog failed to alert
to the presence of drugs, however, the court found the suspicions that justified the stop “were
dispelled.” A second dog was called and positively alerted to the vehicle an hour later. The
subsequent search uncovered no drugs but did reveal more than $700,000 in cash, some of which
was contained in large Tide detergent boxes. Pointing specifically to evidence of the dog’s training
and high success rate at accurately identifying the presence of drugs, the court concluded that “there
were no grounds for the police to continue to believe that the vehicle contained narcotics after the
dog failed to alert.” Id. at 356. “Given that the police had no reason to continue to suspect that
Davis possessed narcotics, delaying Davis’s vehicle an additional hour in order to permit a second
examination of the vehicle by another drug sniffing dog was unreasonable. The use of the second
dog and the continued detention of Davis’s vehicle served no investigatory purpose.” Id.
         There was evidence in this case, found by the district court to be convincing, that the agents
knew how long the duffle bags had been in the Tahoe and had reason to believe that the first dog
failed to alert because the bags had not been in the Tahoe long enough for the odor to escape.
Emphasizing this evidence and that the first dog also alerted on a second pass around the Tahoe, the
district court concluded that calling a second drug detection dog was a “reasonable investigative
technique under the circumstances.” In other words, under these circumstances, the failure of the
first dog to alert to the Tahoe did not dispel reasonable suspicion that drugs would be found in the
Tahoe and use of a second drug detection dog served a reasonable investigatory purpose. Moreover,
unlike in Davis, when the first dog failed to alert to the Tahoe, law enforcement was still diligently
pursuing other lines of investigation likely to confirm or dispel the suspicion that Perez and Rhodes
had or were engaged in a drug transaction.
        The record supports the district court’s finding that law enforcement was engaged in
continuous activity aimed at confirming or dispelling the reasonable suspicion that the transfer of
the duffle bags to the Tahoe was part of a drug transaction. About the time that Perez consented to
the search of the Escalade, the first drug dog failed to alert, a second drug dog was called, and efforts
were underway to obtain hotel records and gain access to the hotel rooms. By 12:30 p.m., the
investigation of the Escalade and Explorer had concluded without uncovering contraband or other
evidence of illegal activity. The administrative subpoena was faxed to the hotel at 12:33 p.m. and,
at some point before the second drug dog arrived, Room 1024 was searched. Turbo, the second drug
detection dog, arrived about 1:00 p.m., was taken around the Tahoe at about 1:30 p.m., and
positively alerted to the presence of drugs. As a result, the continued detention of the defendants
for the hour between the completion of the consensual search of the Escalade and Explorer and the
second dog’s alert to the Tahoe did not impermissibly extend the scope of the Terry stop.
       Even if we were to agree with defendants that the rest of the investigatory steps had been
exhausted before the second drug dog alerted to the Tahoe, unreasonably extending the detention,
Nos. 04-5440; 05-5373      United States v. Perez, et al.                                       Page 9


the exclusionary rule only requires suppression of evidence that is the fruit of the unlawful detention.
United States v. Fullerton, 187 F.3d 587, 591 (6th Cir. 1999) (statements must be made after the
detention became illegal in order to be fruit of the unlawful detention). Statements and evidence
obtained during the initial stop or as a result of the consensual searches would not be implicated.
The only evidence defendants specifically identify as having been illegally obtained, aside from the
evidence obtained from the Tahoe, is the statement by Rhodes admitting that the Tahoe belonged
to him. The record indicates, however, that this statement was elicited in the context of the detention
resulting from Perez’s unchallenged consent to search the Escalade. Agent Bradford, who elicited
the statement, went to assist at the traffic stop, questioned the occupants, and provided names to the
agent preparing the administrative subpoena. Bradford was interested in finding the keyless entry
device Hardcastle had seen, and learned that there was one in the Escalade. Rhodes was questioned
for a few minutes before he acknowledged that the device and the Tahoe were his. At about 12:30
p.m., Bradford attempted to gain consent to search the Tahoe from Rhodes. Whether the admission
was made during or at the conclusion of the consensual search of the Escalade, it cannot be said to
have been fruit of the allegedly unlawful extension of the detention. This brings us to the evidence
that is the central focus of the defendants’ appeals; the cocaine seized from the Tahoe.
C.      Search of the Tahoe
        Without clearly distinguishing between their theories, defendants argue for suppression of
the cocaine seized from the Tahoe. On one hand, Rhodes seems to contend that the search of the
Tahoe was “fruit” of the allegedly unlawful delay in the investigative stop of the Escalade. Segura
v. United States, 468 U.S. 796, 804-05 (1984); Murray v. United States, 487 U.S. 533, 536-41
(1988). Whether or not the stop became constitutionally unreasonable, however, the search of the
Tahoe was simply not a product of the detention of the Escalade and its occupants. See, e.g.,
Sharpe, 470 U.S. at 683 (“It is not necessary for us to decide whether the length of Sharpe’s
detention was unreasonable, because that detention bears no causal relation to Agent Cooke’s
discovery of the marihuana. The marihuana was in Savage’s pickup, not in Sharpe’s Pontiac; the
contraband introduced at respondent’s trial cannot logically be considered the ‘fruit’ of Sharpe’s
detention.”).
         To the extent that Rhodes may rely on Davis to support this argument, such reliance is
misplaced. In Davis, unlike this case, the second dog’s positive alert on Davis’s vehicle was the
product of the illegal detention of that vehicle. Davis, 430 F.3d at 355-57; see also Illinois v.
Caballes, 125 S. Ct. 834, 837 (2005) (explaining that a dog sniff is not the cause, but may be a
consequence of an illegal detention). In contrast, while the Escalade was allegedly detained
unlawfully, the Tahoe, left parked at the hotel, was the subject of the successive canine sniffs. That
is, the canine sniff that provided probable cause to search the Tahoe was not a consequence of the
allegedly unlawful delay in the detention of the Escalade.
        Apart from the stop of the Escalade, defendants seem to also argue that the search of the
Tahoe was itself a violation of the Fourth Amendment. A “search” of property occurs when one’s
reasonable expectation of privacy is infringed; while a “seizure” requires some meaningful
interference with an individual’s property interest. United States v. Jacobsen, 466 U.S. 109, 113
(1984). A seizure of property may be made on less than probable cause if it satisfies Terry-type
standards of reasonableness. Place, 462 U.S. at 706. A warrantless search of an automobile is
permissible if probable cause exists to believe it contains evidence of a crime. United States v. Ross,
456 U.S. 798, 809 (1982). There is probable cause to justify a warrantless search of a vehicle once
a properly trained and reliable drug detection dog alerts positively to the presence of drugs. United
States v. Hill, 195 F.3d 258, 273 (6th Cir. 1999).
      Rhodes, as the owner, had protected Fourth Amendment interests in the Tahoe. Because the
Tahoe sat in the parking lot of the hotel and was not stopped, detained, or moved, no search or
Nos. 04-5440; 05-5373       United States v. Perez, et al.                                        Page 10


seizure occurred when the Tahoe was approached. United States v. Ludwig, 10 F.3d 1523, 1526
(10th Cir. 1993). Nor did the canine sniffs of the exterior of the Tahoe constitute a search within
the meaning of the Fourth Amendment. Place, 462 U.S. at 700-01. In rejecting the proposition that
reasonable suspicion is required to justify using a drug dog during a legitimate traffic stop, the
Supreme Court made clear that use of a well-trained drug dog does not in itself implicate any
legitimate privacy interests. Caballes, 125 S. Ct. at 837-38. As a result, the failure of the first dog
to alert to the Tahoe did not affect the lawfulness of the second canine inspection. Moreover, since
there is no dispute that Turbo and Lou were well-trained and reliable drug dogs, the positive alerts
provided the necessary probable cause to justify the warrantless search of the Tahoe.
        Taking a different tack, Perez, whose standing to challenge the search of the Tahoe is itself
doubtful, argues that he nonetheless had a protected possessory      interest in the duffle bags that
contained the cocaine because he was seen carrying one of them.2 Even if we assume that Perez had
a protected interest in the bags themselves, the search was lawful because an officer with probable
cause to search a vehicle for drugs may inspect any item in that vehicle that could contain drugs,
whether or not the item belonged to the driver, a passenger, or someone else claiming an expectation
of privacy in its contents. Wyoming v. Houston, 526 U.S. 295, 300-02 (1999).
     Accordingly, the denial of the motions by Rhodes and Perez to suppress evidence is
AFFIRMED.




        2
         Perez asserted that he had standing to challenge the search of the Tahoe because the keyless entry
device was found in the console of the Escalade he was driving. Yet, Perez denied the device belonged to
him while Rhodes, who was a passenger in the Escalade, admitted that the device was his and it went to his
Tahoe. Because we find the search of the Tahoe was supported by probable cause, we need not address
Perez’s claim that his rights were invaded by the entry into the Tahoe.
