                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          May 3, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-5133
          v.                                         (N.D. Oklahoma)
 JULIO CESAR DOMINGUEZ -                          (D.C. No. 05-CR-014-P)
 CRUZ,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit
Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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       This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Julio Cesar Dominguez-Cruz entered a conditional plea of guilty to one

count of conspiracy to possess with intent to distribute, and to distribute, a

controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(I), and

846. He was sentenced to 135 months’ imprisonment, followed by five years of

supervised release, and was assessed a fine of $5000 and a special assessment of

$100. In his plea agreement, Dominguez-Cruz reserved the right to appeal the

district court’s denial of his motion to suppress. He now appeals that ruling.



                                  BACKGROUND

      On February 4, 2005, Oklahoma Highway Patrol Trooper Branson Perry

stopped a 1998 Jeep Cherokee, in which Dominguez-Cruz was a passenger, for

following the car in front of it, a BMW, too closely. According to Trooper Perry,

the Jeep was approximately eight feet behind the BMW, and the two vehicles

were traveling approximately 45 to 55 miles per hour, as they approached a toll

booth on an interstate highway. At the time, approximately 1:05 a.m., the weather

was clear and traffic was light. Trooper Perry testified that, based on his

experience dealing with car accidents, he considered the interval between the

vehicles unsafe because “[w]hen you’re less than a car length behind another

vehicle, . . . you cannot stop that vehicle in time to keep from running into it if

they slam their brakes on.” Tr. of Mot. to Suppress Hr’g at 23, Appellant’s App.


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at 30. Trooper Perry stopped the Jeep after it passed through the toll booth, and

Trooper Perry’s partner, Trooper Gene Hise, stopped the BMW for failure to use a

turn signal prior to a lane change.

      After exiting his patrol car and approaching the Jeep, Trooper Perry asked

the driver, Nati Ortiz, to accompany him to the patrol car. There, Ortiz denied

that the Jeep and BMW were traveling together. Trooper Perry then spoke with

Trooper Hise and learned that the BMW’s driver had indicated that the vehicles

were traveling together. When Trooper Perry returned to his patrol car and asked

Ortiz about this, Ortiz acknowledged he had lied. After issuing a warning and

returning Ortiz’s documents, Trooper Perry obtained Ortiz’s consent to search the

Jeep. Meanwhile, Trooper Hise was walking a drug dog around the BMW. When

Trooper Perry went to ask Trooper Hise for assistance in conducting the search,

he learned that the drug dog had alerted to drugs in the BMW. Trooper Perry and

Trooper Hise then found heroin in the driver’s side compartment of the BMW.

All occupants of the BMW and Jeep, including Dominguez-Cruz, were then

placed under arrest. According to Trooper Perry, twenty to thirty minutes had

elapsed from the time of the initial stop to the time of the arrests. Although the

drug dog was walked around the Jeep, it did not alert to drugs in the Jeep, and no

drugs were found in the Jeep.




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      After Dominguez-Cruz was charged, he filed a motion to suppress, arguing

that the videotape recording of the stop 1 should be suppressed because the initial

stop of the Jeep was “without probable cause, [and] his detention was illegal.”

Mot. to Suppress at 2, R. doc. 31. 2 The district court referred the matter to a

magistrate judge, who recommended the motion be denied. The judge also held

that the continuing detention of Dominguez-Cruz was justified based on the

inconsistent responses given by Ortiz and the BMW’s driver, the drug dog’s alert,

and the discovery of drugs in the BMW. Dominguez-Cruz submitted written

objections to the magistrate judge’s recommendation. The district court overruled

these objections, adopted the magistrate judge’s findings, and denied the motion

to suppress.

      As indicated above, Dominguez-Cruz’s subsequent plea agreement reserved

his right to appeal the district court’s denial of his motion to suppress. On


      1
       The videotape recording was made by Trooper Perry’s patrol car, which
automatically turned on the recording when the car’s emergency lights were
activated.
      2
          We note that neither the district court pleadings concerning Dominguez-
Cruz’s motion to suppress, nor the magistrate judge’s report and recommendation,
the findings of which were adopted by the district court, were included in the
record on appeal. We note further that it is the appellant’s duty to “do whatever
. . . is necessary to enable the [district court] clerk to assemble and forward the
record.” Fed. R. App. P. 11(a); see United States v. Hart, 729 F.2d 662, 671
(10th Cir. 1984) (“When an appellant asserts that [a ruling] should be reversed
because of a particular error and the record does not permit the reviewing court to
evaluate the claim, the court will generally refuse to consider it.”).

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appeal, he renews his arguments that the initial stop of the Jeep was invalid and

that “the protracted detention of his person . . . was excessive and constituted an

illegal arrest.” Appellant’s Br. at 10.



                                   DISCUSSION

      When reviewing the district court’s denial of a motion to suppress, “we

view the evidence in the light most favorable to the government, accept the

district court’s findings of fact unless clearly erroneous, and review de novo the

ultimate determination of reasonableness under the Fourth Amendment.” United

States v. Angelos, 433 F.3d 738, 744 (10th Cir. 2006) (internal quotation

omitted). In the context of traffic stops, 3 we determine reasonableness using the

framework set forth in Terry v. Ohio, 392 U.S. 1 (1968), “asking first ‘whether

the officer’s action was justified at its inception,’ and second ‘whether it was

reasonably related in scope to the circumstances which justified the interference

in the first place.’” United States v. Bradford, 423 F.3d 1149, 1156 (10th Cir.

2005) (quoting Terry, 392 U.S. at 20). We have held that an initial stop is valid

“‘if the stop is based on an observed traffic violation or if the police officer has



      3
       The government has not contested Dominguez-Cruz’s standing to
challenge the stop of the vehicle of the detention of his person. We have held
that passengers may bring such challenges. United States v. Eylicio-Montoya, 70
F.3d 1158, 1164 (10th Cir. 1995).

                                          -5-
reasonable articulable suspicion that a traffic or equipment violation has occurred

or is occurring.’” United States v. DeGasso, 369 F.3d 1139, 1143 (10th Cir.

2004) (quoting United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995)

(en banc)).

      Here, Trooper Perry based the initial stop of the Jeep on his assertion that it

was following the BMW in front of it too closely. Oklahoma law states that

“[t]he driver of a motor vehicle shall not follow another vehicle more closely than

is reasonable and prudent, having due regard for the speed of such vehicles and

the traffic upon and the condition of the highway.” Okla. Stat. tit. 47,

§ 11-310(a). In his report and recommendation, adopted by the district court, the

magistrate judge specifically found, based on Trooper Perry’s testimony that

“considering the speed of the vehicles, the traffic and the road conditions, he did

not consider a distance of a car-length or less to be reasonable and prudent,” there

was an “objective justification” for concluding that a violation of the statute had

occurred. Report & Recommendation at 5, R. doc. 53. We see no basis for

considering this finding clearly erroneous. We therefore agree that the initial stop

was reasonable.

      Dominguez-Cruz also argues that his continued detention was unreasonably

extended. “A stop generally ends when the officer returns the driver’s license,

registration, and insurance information. At this point, questioning must cease and


                                         -6-
the driver [and his passengers] must be free to go.” United States v. Manjarrez,

348 F.3d 881, 885 (10th Cir. 2003) (citation omitted). However, this general rule

“is subject to a significant exception permitting an officer to engage in further

[investigation] unrelated to the initial stop if he has probable cause, the consent of

the suspect, or, at a minimum, a reasonable suspicion of criminal activity.”

United States v. Ozbirn, 189 F.3d 1194, 1199 (10th Cir. 1999).

      Here, after the Jeep’s driver, Ortiz, was given a warning and his documents

were returned, he agreed to Trooper Perry’s request that he answer further

questions and allow the Jeep to be searched. There is no indication that Trooper

Perry exercised a “coercive show of authority” that would lead us to consider

Ortiz’s consent involuntary. See United States v. Bustillos-Munoz, 235 F.3d 505,

515 (10th Cir. 2000) (internal quotation omitted). In addition, by that point,

Trooper Perry had also established, by Ortiz’s admission that he had previously

lied, that the Jeep and BMW were traveling together. Thus, the drug dog’s alert

on the BMW established probable cause sufficient to warrant the continued

detention of the Jeep and its occupants while the BMW was searched. See United

States v. Rosborough, 366 F.3d 1145, 1153 (10th Cir. 2004).

      We therefore conclude that Dominguez-Cruz’s stop and continued detention

were reasonable under the Fourth Amendment. Accordingly, we conclude that

Dominguez-Cruz’s motion to suppress was properly denied.


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                                CONCLUSION

     For the foregoing reasons, the district court’s denial of the motion to

suppress is AFFIRMED.

                                             ENTERED FOR THE COURT


                                             Stephen H. Anderson
                                             Circuit Judge




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