* The Honorable Robert C. Brack, District Judge, Uni ted States District

Court for the District of New Mexico, sitting by de signation. 

## F I L E D United States Court of

Appeals Tenth Circuit APR 18 2005 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. MICHAEL CURTIS WILLIAMS,

Defendant - Appellant. No. 04-7065

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. CR 04-06-WH)
Robert L. Wyatt IV, Wyatt Law Office, Oklahoma City , Oklahoma, (Alecia Felton George, George Law Office, Mustang, Oklahoma, with him on the brief) for Defendant-Appellant. D. Michael Littlefield, Assistant United States Att orney, (Sheldon J. Sperling, United States Attorney, with him on the brief) Musk ogee, Oklahoma, for Plaintiff-Appellee.

Before HENRY , Circuit Judge, LUCERO , Circuit Judge, and BRACK, * District Judge.
BRACK , District Judge.-2-

Defendant-Appellee Michael Curtis Williams appeals the district court’s denial of his motion to suppress evidence based on violations o f the Fourth Amendment in connection with the search of his vehicle and the s cope of his detention. The district court found that the search and detention were just ified because there was an objectively reasonable suspicion of illegal activity. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. Factual Background On January 7, 2004, Mr. Williams was driving eastbo und on Interstate 40 when Oklahoma Highway Patrol Trooper Cody Hyde observed Mr. Williams driving without a seat belt and violating the posted speed limit . Mr. Williams was traveling with three other individuals. Mr. Williams exited th e interstate and was pulled over shortly thereafter. Trooper Hyde asked Mr. William s to step out of the car and join him in the patrol car. Mr. Williams was extremely nervous throughout the e ncounter. Mr. Williams’ hands were shaking, his voice was cracking, he coul d not sit still, and his heart was beating so fast that Trooper Hyde was able to see h is chest jerk. Mr. Williams admitted to Trooper Hyde that he had exited the int erstate to avoid the traffic stop. Trooper Hyde asked Mr. Williams where he and his pa ssengers had been and where they were going. Mr. Williams identified all of th e passengers in the van, although-3-

he knew one passenger only as “Larry.” Mr. William s stated that they had been visiting family in Shawnee, Oklahoma for a few days and that they were on their way home to Tennessee. Trooper Hyde then left Mr. Williams in the patrol c ar and went to speak with the passengers in the vehicle. The passenger ident ified as Mr. Williams’ girlfriend and the passenger known as “Larry” (later identifie d as Lawrence Louis Gutierrez, Jr. and charged as a co-defendant) indicated that they had been to Phoenix, Arizona for approximately one week to pick up “Larry,” and that they were on their way to
Tennessee. Trooper Hyde returned to the patrol car and again q uestioned Mr. Williams about his travel history. Mr. Williams stated thathe might have picked up “Larry” in Oklahoma. Mr. Williams continued to appear extr emely nervous and was breathing rapidly. Trooper Hyde gave Mr. Williams his insurance card and told him he was free to leave. Trooper Hyde, however, asked some additional questions as Mr. Williams exited the patrol car. According to T rooper Hyde, Mr. Williams appeared as if he were about to run. Trooper Hyde asked for consent to perform a canine sniff on the van and Mr. Williams refused. Shortly thereafter, Trooper Hyde ordered the passengers out of the vehicle and Mr. Williams back into the patrol car. A canine s niff was performed on the exterior of Mr. Williams’ vehicle. The canine alerted to the presence of drugs-4-

in the vehicle. Trooper Hyde then searched the ve hicle and discovered a gun and a bag of methamphetamine hidden in the interior of the vehicle. Mr. Williams and his passengers were arrested. Mr. Williams was indicted for possession with inten t to distribute over 500 grams of methamphetamine, carrying a firearm in rel ation to a drug trafficking crime, possession of a firearm in furtherance of a drug traffick ing crime, and being a felon in possession of a firearm in violation of 21 U.S.C . §§ 841(a)(1), 841 (b)(1)(A), 18 U.S.C. §§ 2, 922(g)(1), 924(c)(1)(A)(i), and (c)(1) (C)(i). Mr. Williams filed a motion to suppress the evidenc e, which was referred to a United States magistrate judge. After holding an evidentiary hearing on February 12, 2004, the magistrate judge recommended that the motion be denied. Mr. Williams filed timely objections. On March 19, 200 4, the district judge issued an order adopting the magistrate judge’s recommendatio n and denying the motion to
suppress. Mr. Williams challenges the district court’s determ ination that the detention was justified; he does not challenge the validity o f the initial stop. The Government does not argue that Mr. Williams consented to the s earch of his vehicle. Discussion When reviewing an order denying a motion to suppres s, we accept the district court’s factual findings unless they are clearly er roneous, and view the evidence in-5-

the light most favorable to the district court's ruling

. United States v. Zabalza , 346 F.3d 1255, 1257-1258 (10 thCir. 2003). The credibility of witnesses, the wei ght to be given evidence, and the reasonable inferences dr awn from the evidence fall within the province of the district court. United States v. Kimoana , 383 F.3d 1215, 1220 (10 thCir 2004). The ultimate determination of reasonab leness under the Fourth Amendment is a question of law reviewed de novo. Zabalza , 346 F.3d at 1258. The Fourth Amendment prohibits unreasonable searche s and seizures by the
Government. U.S. C ONST . amend. IV. Its protections extend to brief inves tigatory stops of persons or vehicles that fall short of tra ditional arrest. United States v.
Arvizu , 534 U.S. 266, 273 (2002). A routine traffic stop constitutes an investigative detention and is examined under the principles anno unced in Terry v. Ohio , 392 U.S. 1, 19-20 (1968). The first inquiry under Terryis whether the stop was justified at its inception

. “[A] traffic stop is valid under the Fourth Amendme nt if the stop is based on an observed traffic violation or if the police officerhas reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring." United States v. Botero-Ospina , 71 F.3d 783, 787 (10 thCir. 1995) (en banc). Mr. Williams does not challenge the validity of the initial stop. Troope r Hyde was justified in stopping Mr. Williams because he observed that Williams was spee ding and not wearing his seatbelt.-6-

The second Terry inquiry is whether the officer’s c onduct during the detention was reasonably related in scope to the circumstance s which justified the initial stop. Terry , 392 U.S. at 20. An officer may detain a motorist f or questioning unrelated to the initial traffic stop if he has an objectively r easonable and articulable suspicion that illegal activity has occurred, or the driver v oluntarily consents to further questioning. See United States v. Galindo-Gonzales , 142 F.3d 1217, 1221 (10 thCir. 1998). It is undisputed that Mr. Williams did not consent to any search. The question is whether Trooper Hyde had an objectivelyreasonable and articulable suspicion of illegal activity that would justify prol onging the detention. See United States v. Williams , 271 F.3d 1262, 1268 (10 thCir. 2002) (recognizing that the refusal to consent to search cannot be part of the reasonab le suspicion calculus, but rather "our analysis turns on whether sufficient and speci fic articulable facts existed which, when considered together, provided the officer withreasonable suspicion of criminal activity before he asked for consent to search the vehicle"). The district court relied on the following factual findings to support its conclusion that the detention was justified by reas onable suspicion. Mr. Williams was extremely nervous during his encounter with Tro oper Hyde; his hands were shaking, his voice was cracking, he could not sit s till, and his heart was beating so fast that Trooper Hyde was able to see his chest jerk. Mr. Williams admitted that he exited the interstate to avoid the traffic stop. Mr. Wil liams and his passengers gave-7-

inconsistent stories when asked where they were com ing from and how long they had been together. When Mr. Williams exited the patrol car, Mr. Williams appeared as if he were about to run. Considered in the light m ost favorable to the district court’s ruling, these findings of fact are not clearly erro neous. Mr. Williams argues that, when viewed one-by-one, the factors did not give rise to reasonable suspicion. The Supreme Court ha s expressly rejected this sort of “divide-and-conquer” analysis; a court may not eval uate and reject each factor in isolation. United States v. Arvizu , 534 U.S. at 274. When determining whether there was reasonable suspicion, a court must look to the “tota lity of the circumstances” to see whether the officer had a “particularized and o bjective basis for suspecting legal wrongdoing.” Arvizu , 534 U.S. at 273. The fact that Mr. Williams offered explanations forthe suspicious circumstances is immaterial. A law enforcement off icer may rely upon his training and experience without inquiring of a defendant as to innocent explanations. See
Arvizu , 534 U.S. at 273. A court should accord deference to an officer's ability to distinguish between innocent and suspicious actions

. United States v. Gandara-Salinas , 327 F.3d 1127, 1130 (10 thCir. 2003). Although reasonable suspicion may not be based upon a refusal of consent to asearch, see Williams , 271 F.3d at 1268, the objective facts known to Trooper Hyde support reasonable suspicion prior to the refusal. See Whren v. United States , 517 U.S. 806, 813 (1996).-8-

Although refusal to consent may not augment factors supporting reasonable suspicion, neither does it negate those observation s made prior to the refusal. During the lawful detention, Trooper Hyde retrieveda trained canine from his police car and conducted a canine search on the ext erior of Williams’ vehicle. A canine sniff on the exterior of a vehicle during a lawful traffic stop does not implicate legitimate privacy interests. Illinois v. Caballes , ___ U.S. ___, 125 S.Ct. 834, 838 (2005). The canine alerted to the presenc e of drugs in the vehicle. A canine alert gives rise to probable cause to search a vehicle. United States v. Rosborough , 366 F.3d 1145, 1152 (10 thCir. 2004). The search revealed the methamphetamine and the gun. Based on the totality of the circumstances as found by the district court, Trooper Hyde had a particularized and objective bas is for suspecting legal wrongdoing. Because the stop and detention were ba sed upon reasonable suspicion, and the canine sniff provided probable cause for th e search, they did not violate the Fourth Amendment. Conclusion We AFFIRM the decision of the district court.