                                                                                 F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                   SEP 7 2004
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                        Nos. 03-5077 and 03-5080
 v.
                                                        (D.C. No. 02-CR-103-H)
                                                            (N.D. Oklahoma)
 JOHN H. RAYNOR and LEROY
 RAYNOR,

           Defendants-Appellants.


                                 ORDER AND JUDGMENT*


Before O’BRIEN, HOLLOWAY and TYMKOVICH, Circuit Judges.


       These appeals challenge the constitutionality of a search following a traffic stop.

Appellants/Defendants are brothers John and Leroy Raynor who were found in the

possession of drugs and firearms after a consensual search during an extended traffic

stop. Defendants moved to suppress the fruits of the search, claiming the traffic stop was

unconstitutionally long and that the consent was not voluntary. The district court

disagreed and denied the Defendants’ motion to suppress. Defendants subsequently pled

conditionally guilty to narcotic trafficking and firearm charges and reserved their right to


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
appeal the district court’s ruling on their motion to suppress. Defendants now appeal that

ruling.

          For the reasons detailed below, we find the traffic stop and the resulting search to

be reasonable and, therefore, AFFIRM the Defendants’ convictions.



                                                I

                                           Background

          Appellants/Defendants are brothers John and Leroy Raynor who were traveling in

a rental van on a highway in Oklahoma with two other adults and an infant. They were

stopped by Trooper Perry for changing lanes without signaling in violation of Oklahoma

state traffic laws. After being pulled over, Trooper Perry asked the driver, John Raynor,

to exit the vehicle and sit in Trooper Perry’s patrol car. John Raynor could not produce a

valid driver’s license. Nonetheless, Trooper Perry informed John Raynor that he was only

going to write a warning ticket for failing to signal a lane change.

          Trooper Perry also inquired into John Raynor’s itinerary who replied that he had

come from New York and was driving to somewhere “down south.” Trooper Perry then

asked where the van’s rental documents were located. John Raynor replied that they were

located behind the sun visor in the van. During this conversation, Trooper Perry observed

that John Raynor was acting in an extremely nervous manner. Trooper Perry then

retrieved the van’s rental documents from behind the sun visor.


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       While Trooper Perry was at the van, he spoke with its passengers. Leroy Raynor

told Trooper Perry that they were coming from Florida, not New York as his brother had

previously told Trooper Perry. Moreover, none of the passengers in the van could

remember where they had stayed or what family they had supposedly visited. Trooper

Perry also obtained a valid driver’s license from one of the female passengers of the van,

Kaya Heard. Trooper Perry then returned to his squad car and finished writing John

Raynor’s warning.

       At this time, 47 minutes after the initial traffic stop, Trooper Perry asked for and

obtained John Raynor’s consent to search the van. Trooper Perry then removed the

occupants of the van to another Trooper’s vehicle, and walked a drug-detection dog

around the van. The dog alerted on the driver’s and passenger’s sides of the van.

Trooper Perry then searched the inside of the van and came across a TV. Trooper Perry

testified that he could see food-saver bags inside the TV and that the TV rattled when

shaken. Trooper Perry then smashed the TV on the ground and discovered two kilograms

of cocaine and two firearms. John and Leroy Raynor were then given Miranda warnings

and arrested.

       Later, John and Leroy Raynor pled conditionally guilty to firearm and narcotics

violations, reserving the right to challenge the constitutionality of the search. The district

court found Trooper Perry to be a credible witness, the initial stop to be lawful, the initial

search with the drug-detection dog to be consensual, and the more thorough search of the


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interior to be justified by probable cause. Defendants now appeal, claiming that the search

was constitutionally deficient in three ways: (1) the initial stop was not reasonably limited

and therefore required Miranda warnings; (2) the consent given by John Raynor was not

voluntary; and (3) the search exceeded the scope of the consent.



                                              II

                                         Discussion

              “When reviewing the denial of a motion to suppress, we
              accept the factual findings of the district court unless they are
              clearly erroneous. Judging the credibility of the witnesses,
              determining the weight to be given to evidence, and drawing
              reasonable inferences and conclusions from the evidence are
              within the province of the district court. On appeal of a denial
              of a suppression motion, we consider the totality of the
              circumstances and view the evidence in the light most
              favorable to the government. The ultimate determination of
              reasonableness under the Fourth Amendment is a question of
              law which we review de novo.”

United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998).



                                              A

                                   The initial traffic stop

       “[A] traffic stop is valid under the Fourth Amendment if the stop is based on an

observed traffic violation or if the police officer has reasonable articulable suspicion that

a traffic or equipment violation has occurred or is occurring.” United States v. Botero-


                                             -4-
Ospina, 71 F.3d 783, 787 (10th Cir. 1995). In this case, Defendants do not challenge the

legality of the initial stop but rather argue that the duration of the traffic stop, lasting over

47 minutes, was constitutionally excessive.

       At oral argument, the panel requested the parties to brief the issue of whether the

Defendants had standing to challenge the constitutionality of Trooper Perry’s search.

Although “it is the defendant's burden to establish standing to challenge a fourth

amendment violation . . . the government [] waive[s] this issue by failing to raise it

below.” United States v. Dewitt, 946 F.2d 1497, 1499-1500 (10th Cir. 1991). This is

because Fourth Amendment standing is not jurisdictional. United States v. DeLuca, 269

F.3d 1128, 1135 (10th Cir. 2001). In this case, the government concedes the standing

issue was not raised below and therefore could be considered waived. In any event, the

Defendants do have standing to challenge the constitutionality of this search in this case.

       “[A] defendant in sole possession and control of a car rented by a third party has

no standing to challenge a search or seizure of the car.” United States v. Jones, 44 F.3d

860, 871 (10th Cir. 1995). In this case, the van in which the Defendants were stopped

was rented to a third party and neither Defendant was authorized to operate the vehicle.

Appellant App. at 44, 51. Therefore, neither Defendant has standing to challenge the

search of the car.

      We, however, “distinguish passenger standing to directly challenge a vehicle search

from passenger standing to seek suppression of evidence discovered in a vehicle as the


                                              -5-
fruit of an unlawful stop, detention, or arrest.” United States v. Eylicio-Montoya, 70 F.3d

1158, 1162 (10th Cir. 1995). And, the Defendants do have standing to challenge the

constitutionality of the traffic stop. Id. at 1164 (“a passenger has standing to challenge a

constitutionally improper traffic stop, detention, or arrest on Fourth Amendment grounds

even though, when the seizure occurs, she has no possessory or ownership interest in

either the vehicle in which she is riding or in its contents”). More specifically, the

defendants challenge the extension of the traffic stop to some 47 minutes and their

detention for that time, which they claim was unreasonable.

       Here, Defendants challenge the constitutionality of the initial traffic stop by

Trooper Perry. Therefore, the Defendants do have standing to challenge their detention.

However a passenger must show some type of possessory interest in a container, like the

TV set here, to have standing to challenge the intrusion into such a container. See United

States v. Edwards, 242 F.3d 928, 936-37 (10th Cir. 2001). Here we feel the officers had

ample probable cause to search the TV set based on the canine sniff.

       “Generally, an investigative detention must last no longer than is necessary to

effectuate the purpose of the stop.” United States v. Patten, 183 F.3d 1190 (10th Cir.

1999) (internal quotation marks omitted). In the context of a traffic stop, this means that

once “a driver has produced a valid license and proof of entitlement to operate the vehicle,

an officer may issue a citation, but then usually must allow the driver to proceed without

further delay or questioning.” Id. However, “An officer may question the driver further if


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(1) the officer has an objectively reasonable and articulable suspicion that the driver is

engaged in illegal activity, or (2) the driver voluntarily consents to further questioning.”

Id.

       In this case, the district court concluded the extension of the traffic stop was

constitutional because Trooper Perry had an objectively reasonable and articulable

suspicion that criminal activity was afoot. We agree. “A variety of factors may contribute

to the formation of an objectively reasonable suspicion of illegal activity.” Hunnicutt, 135

F.3d at 1349. These factors include having no proof of authority to operate the vehicle,

id., inconsistent statements about travel plans, id., driving with a suspended license, id.,

and “extreme and continued nervousness,” United States v. Williams, 271 F.3d 1262,

1268-69 (10th Cir. 2001). All of these factors were present in this case as indicated by the

district court’s findings of fact.

       In particular, the district court found: (1) The registered renter of the vehicle in

which the Defendants were driving was not present, i.e., no proof of authority to operate

the vehicle. Appendix at 20. (2) John Raynor stated they were traveling to Syracuse from

somewhere “down south” while Leroy Raynor stated they were traveling to Syracuse from

Tampa, FL, i.e., inconsistent statements about travel plans. Id. (3) John Raynor was

driving with a suspended license. Id. at 19. (4) And John Raynor was “extremely nervous,

and that nervousness never dissipated,” i.e., extreme and continued nervousness. Id. at 20.

Given the totality of these circumstances, and especially when viewed in the light most


                                              -7-
favorable to the government, we conclude that the Defendants’ further detention and

questioning were justified by a reasonable articulable suspicion of illegal activity.

       Defendants also argue that Miranda warnings should have been given because the

traffic stop was not an investigative detention but rather a custodial interrogation.

Ordinarily, “ Miranda warnings are simply not implicated in the context of a valid Terry

[traffic] stop.” United States v. Perdue, 8 F.3d 1455, 1464 (10th Cir. 1993). Where,

however, the traffic stop is effectuated using a level of force “that reache[s] the boundary

line between a permissible Terry stop and an unconstitutional arrest,” Miranda warnings

may be required. Id.

       In this case, the amount of force used was not of a level “more associated with

formal arrest, than with the characteristically ‘noncoercive’ and ‘nonthreatening’ Terry

[traffic] stop.” Id. at 1464-65. Trooper Perry merely ordered John Raynor out of the van

and into the patrol vehicle. Supp. to Record (Videotape from Trooper Perry’s vehicle).

Neither weapons nor handcuffs were used in effectuating the stop. Id. Thus, the amount

of force used in this case was that normally associated with a routine traffic stop.

       The level of force used in this case stands in stark contrast to those cases where we

have held a traffic stop to require Miranda warnings. In Perdue, for example, the police

forced the suspect off the road and then onto the ground. Id. at 1464. Moreover, the

police handcuffed the suspect and questioned him at gunpoint with a helicopter hovering

overhead. Id. In light of those extreme circumstances, we held that the stop was so


                                             -8-
“highly intrusive” as to require Miranda warnings. Id. at 1466. None of those extreme

factors are present in this case. Accordingly, even though the Defendants were not free to

leave, the level of force used to effectuate the stop was not so intrusive as to transform an

investigative detention into a custodial interrogation that would require Miranda warnings.



                                              B

                                     Consent to search

       “It has long been the rule that warrantless searches are per se unreasonable under

the Fourth Amendment.” United States v. Lopez, 777 F.2d 543, 551 (10th Cir. 1985). One

exception to this rule is where consent was given for the search. United States v. Ringold,

335 F.3d 1168, 1174 (10th Cir. 2003). In this case, Defendants argue that the consent they

gave to search the vehicle was not voluntary. In the alternative, Defendants argue that

even if consent was validly given, the resulting search exceeded the scope of the consent.

In any case, however, we conclude that no violation of the Fourth Amendment occurred

because the search in this case fell under the automobile exception.

       “Under the automobile exception, police officers who have probable cause to

believe there is contraband inside an automobile that has been stopped on the road may

search it without obtaining a warrant.” United States v. Oliver, 363 F.3d 1061, 1068 (10th

Cir. 2004). A police dog sniffing drugs, thus indicating that a car contains contraband,

“creates general probable cause to search a vehicle.” United States v. Rosborough, 366


                                             -9-
F.3d 1145, 1153 (10th Cir. 2004). “Once probable cause to search is established, the

officer may search the entire vehicle, including the trunk and all containers therein that

might contain contraband.” United States v. Parker, 72 F.3d 1444, 1450 (10th Cir. 1995).

       In this case, Trooper Perry walked his drug detection dog around the van.

Appendix at 62. When he did so, the dog alerted to the presence of narcotics at the

driver’s side door. Id. at 61-62. The alerting of Trooper Perry’s dog in this case created

the necessary probable cause for a search of the van and any containers therein.

Rosborough, 366 F.3d at 1153; Parker, 72 F.3d at 1450.

       Moreover, the use of a drug detection dog on “an already legitimately detained

automobile is not a ‘search’ within the meaning of the Fourth Amendment.” Hunnicutt,

135 F.3d at 1350. As discussed above, Defendants’ detention was justified by an

articulable suspicion of illegal activity. Therefore, Trooper Perry could use his drug

detection dog without offending the Fourth Amendment. And, since the use of the dog

provided probable cause to search the vehicle and any containers therein, Trooper Perry’s

search of the television set was constitutional whether or not the Defendants gave

consent.1



        As to the television set’s inspection, Leroy Raynor argues on appeal only that
        1

there was no consent or probable cause. Appellant’s Opening Br. at 20. As noted above,
the alert of the drug detection dog provided the requisite probable cause to “open” the
television. No party argues Trooper Perry’s means of effectuating the search of the
television was unreasonable. Nonetheless, we are troubled by Trooper Perry’s decision to
smash the television rather than use a less extreme means to validate or dispel his
probable cause that the television contained contraband.

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                                             III

                                        Conclusion

       For the reasons detailed above, we conclude that the extended traffic stop in this

case was supported by an objectively reasonable and articulable suspicion of illegal

activity. We also conclude that the search of the television set found inside the vehicle

was justified by the probable cause created by an “alert” from the drug detection dog.

Accordingly, we AFFIRM the district court’s order denying Defendants’ motion to

suppress.



                                          ENTERED FOR THE COURT



                                          William J. Holloway, Jr.
                                          Circuit Judge




        This concern, however, does not alter the disposition of this case. Where an
officer has probable cause to believe a closed container in an automobile contains
contraband, that officer is constitutionally permitted to open that container, even using
intrusive means. United States v. Ross, 456 U.S. 798, 818-19 (1982) (citing Carroll v.
United States, 267 U.S. 132 (1925), where the police “opened the rumble seat and tore
open the upholstery of the lazyback”). Whether excessive and unreasonable force was
used in opening the container is relevant to whether the state is potentially liable under
due process for the property damage but irrelevant as to the admissibility of the evidence
seized. See Cody v. Mello, 59 F.3d 13, 16 (2nd Cir. 1995); Stone v. Agnos, 960 F.2d 893,
895-96 (9th Cir. 1992); Bergquist v. County of Cochise, 806 F.2d 1364, 1369 (9th Cir.
1986). Accordingly, whether Trooper Perry caused unnecessary property damage by
smashing the television on the ground is irrelevant as to whether the contents of the
television are admissible.

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