                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 May 10, 2006
                                    TENTH CIRCUIT                            Elisabeth A. Shumaker
                                                                                Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                    Nos. 05-4186 and 05-4188
 SAMUEL L. JETER, a/k/a Samuel                      (D.C. No. 2:04-CR-000624 PGC)
 Lamont Jeter, a/k/a Lil Sam “Rated R”;                         (D. Utah)
 BRIAN PINKNEY, a/k/a Brian Lamont
 Pinkney, a/k/a B-Love “Rated R,”

           Defendants-Appellants.


                                 ORDER AND JUDGMENT*


Before TACHA, Chief Judge, BALDOCK, and KELLY, Circuit Judges.**



       A Utah State Trooper discovered fifteen kilograms of cocaine in a hidden

compartment of Defendants’ vehicle. Following denial of their motion to suppress,

Defendants reserved their right to appeal by entering conditional pleas of guilty to


       *
          This order and judgment is not binding precedent, except under the doctrines of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.
       **
         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.
possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). See

Fed. R. Crim. P. 11(a)(2). On appeal, Defendants claim their detention exceeded the

permissible scope of the traffic stop, and thus tainted their subsequent consent to search.

Because the historical facts are undisputed, we concern ourselves only with the district

court’s conclusion that reasonable suspicion supported Defendants’ continuing detention

once the purpose of the initial stop had been satisfied. Our review is de novo. See United

States v. Edgerton, 438 F.3d 1043, 1047 (10th Cir. 2006). We affirm.

                                             I.

       Utah State Trooper Steve Salas is a veteran member of the state’s criminal

interdiction unit. Around 9:35 a.m. on September 15, 2004, Trooper Salas stopped a Ford

Expedition along Interstate 70 for traveling 10 mph over the posted speed limit.

Defendant Samuel Jeter was the driver. Defendant Brian Pinkney was his passenger. As

Trooper Salas approached, he noticed the vehicle’s two side rear windows were open

approximately two inches. When Pinkney rolled down the front passenger side window,

Trooper Salas noted “an overwhelmingly strong odor of air freshener coming from inside

the vehicle.” The trooper observed two air fresheners hanging from the rearview mirror

and another hanging behind the driver’s seat. On the ceiling behind the passenger’s seat,

the trooper observed another type of air freshener clipped to a vent. On the front dash,

Trooper Salas saw several small air fresheners placed inside the vents. At the suppression

hearing, Trooper Salas testified:


                                             2
       [T]he odor was so strong that I assumed it would almost make somebody
       nauseous being inside the vehicle with that many air fresheners. . . . It’s not
       consistent to have multiple air fresheners that are different flavors. . . .
       Because of the number of air fresheners and because the back windows
       were open, I was assuming that they were trying to get some type of odor
       out of the vehicle. Based on my training and experience, I believed they
       were trying to cover an odor, that’s why they had the number of air
       fresheners they had.

       Trooper Salas asked Defendant Jeter for his license, registration, and proof of

insurance. Jeter produced his driver’s license. The two men informed the trooper they

were returning to Ohio from vacation in Las Vegas. Defendant Pinkney explained the

vehicle belonged to him and his fiancee. He produced an insurance card in his name and

a registration card in the name of Teanna Floyd. When Pinkney retrieved the vehicle’s

registration from the glove compartment, Trooper Salas observed two additional

packaged air fresheners and a roll of incense. During this initial encounter, the trooper

further observed three cell phones on the vehicle’s front console. Trooper Salas testified

that drug organizations sometimes provide a courier with a cell phone in order to track its

contraband: “[I]n addition to the courier’s personal cell phone, he will have an additional

phone which he is to leave on and it is only for contact with the drug organization.” The

presence of three cell phones but only two occupants was consistent with such scenario.

       Because the vehicle’s insurance was under Defendant Pinkney’s name, Trooper

Salas next asked Pinkney to produce his driver’s license to verify his identity. The

trooper commented that the picture on the license did not look like Pinkney whereupon

Pinkney exposed a tattoo on his left forearm which read “Pinkney.” At the same time,

                                              3
Trooper Salas noticed a tattoo on Defendant Pinkney right forearm which read “Killa.”

This further raised the trooper’s suspicions: “The tattoo could be recognized as a street

gang tattoo or also a prison tattoo. The word itself ‘killer’ leads me to associate that

individual with some type of violent behavior.” The trooper testified that violent street

gangs routinely sell narcotics.

       Trooper Salas asked Defendant Jeter to accompany him to the patrol car while the

trooper checked Defendants’ documentation and prepared a warning ticket. On the way,

the trooper asked Jeter if he carried any weapons and asked him to expose his waistband.

Jeter pulled up his shirt and exposed a tattoo on his stomach which read “Rated R.” This

again “led [the trooper] to believe that the tattoo was a possible street gang tattoo or a

prison tattoo.” As Trooper Salas prepared the warning ticket, he continued to speak with

Defendant Jeter. During this period, dispatch reported the vehicle was in fact registered

under the name of Teanna Floyd and had not been reported stolen. At 9:49 a.m., Trooper

Salas provided Jeter with a warning ticket and returned his license. Because dispatch had

not yet reported on the validity of Defendant Jeter’s license or the existence of any

outstanding warrants, Trooper Salas asked Jeter to remain in the patrol car while the

trooper returned Defendant Pinkney’s documentation. Dispatch contacted Trooper Salas

shortly after he returned to the patrol car. Dispatch indicated Jeter’s license was valid and

he had no outstanding warrants. Having completed the tasks related to the initial purpose

of the stop, Trooper Salas next asked Defendant Jeter if he was transporting anything


                                              4
illegal. Jeter responded no. The trooper asked for permission to search the vehicle. Jeter

stated he had no objection. Trooper Salas then approached Defendant Pinkney and asked

for permission to search. Pinkney too agreed.



                                             II.

       During a routine traffic stop based upon probable cause, a trooper may require a

driver to produce a driver’s license, vehicle registration, proof of insurance, and any other

relevant documentation. See United States v. Gregoire, 425 F.3d 872, 878-79 (10th Cir.

2005). The trooper may then run necessary computer checks and issue a warning or

citation. Id. at 879. During this period, questioning need not be limited to travel plans,

vehicle ownership, or the like, provided such questioning does not “appreciably lengthen”

the driver’s detention beyond completion of the tasks at hand. See United States v.

Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006); see also United States v.

Wallace, 429 F.3d 969, 974 (10th Cir. 2005) (“[M]ere police questioning does not

constitute a seizure under the Fourth Amendment.”) (citing Muehler v. Mena, 125 S. Ct.

1465, 1471 (2005)). Once the necessary tasks are completed, however, the trooper must

allow the driver to proceed on his or her way without undue delay unless reasonable

suspicion (or probable cause) exists that the driver is engaged in criminal activity or the

driver consents to additional questioning. Gregoire, 425 F.3d at 879.

       In this case, the Government has never suggested the encounter between Trooper


                                              5
Salas and Defendants became consensual once the trooper completed the tasks related to

the initial purpose of the stop.1 Rather, the district court agreed with the Government’s

argument that reasonable suspicion supported Trooper Salas’ extended questioning

following receipt of the requested dispatch reports. Considering the totality of the

circumstances, the court concluded “any modest extension of the traffic stop that was

required to obtain consent from [Defendants] to search the car was minimal and fully

supported by reasonable articulable suspicion that drug trafficking was afoot.”

       “Reasonable suspicion represents a ‘minimum level of objective justification’

which is ‘considerably less than proof of wrongdoing by a preponderance of the

evidence.’” United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997) (quoting

United States v. Sokolow, 490 U.S. 1, 7 (1989) (citation omitted)).

       Our task is not to pigeonhole each purported fact as either consistent with
       innocent travel or manifestly suspicious, but rather to determine whether the
       totality of the circumstances justify the detention. We make our
       determination with deference to a trained law enforcement officer’s ability
       to distinguish between innocent and suspicious circumstances[.]”

Id. (internal quotations and citations omitted). Applying these standards, we have little

difficulty upholding the district court’s conclusion that reasonable suspicion supported



       1
          Neither has the Government suggested Defendants’ continued detention
following receipt of the dispatch reports was in itself reasonable because it did not
“appreciably lengthen” the detention related to the initial purpose of the stop. See United
States v. Childs, 277 F.3d 947, 953-54 (7th Cir. 2002) (en banc) (“Questions that hold
potential for detecting crime, yet create little or no inconvenience, do not turn reasonable
detention into unreasonable detention.”).

                                             6
Trooper Salas’ decision to briefly extend the stop and momentarily question Defendants

about the possible presence of contraband.

       Although the presence of a masking agent such as air freshener alone may be

insufficient to establish reasonable suspicion of criminal activity, the presence of

numerous air fresheners – in this case at least five – with differing scents, coupled with

open rear windows and additional unopened air fresheners in the glove compartment, led

Trooper Salas to reasonably suspect Defendants had something to hide beyond body odor.

See United States v. Villa-Chaparro, 115 F.3d 797, 802 (10th Cir. 1997). The presence of

multiple cell phones, while possibly innocuous considered in a vacuum, heightened the

trooper’s suspicion. See United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir. 2005)

(officer’s statement that drug traffickers often use multiple cell phones contained in an

affidavit establishing probable cause). Lastly, Defendants’ tattoos, which suggested

possible gang affiliation and a tendency towards violence, were also a part of the totality

of the circumstances justifying Trooper Salas’ extended questioning of Defendants. See

United States v. Gandara-Salinas, 327 F.3d 1127, 1130 (10th Cir. 2003) (an officer is

entitled to rely on his experience and specialized training to make inferences from and

deductions about the available cumulative information). Because reasonable suspicion

justified such questioning prior to Defendants’ consent to search, the order of the district

court denying Defendants’ motion to suppress is–

       AFFIRMED.


                                              7
    Entered for the Court,

    Bobby R. Baldock
    Circuit Judge




8
