*

 The Honorable Robert C. Brack, District Judge, United States District

Court for the District of New Mexico, sitting by designation.

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 Attorney, (Sheldon J. Sperling,

United States Attorney, with him on the brief) Muskogee, 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 of the Fourth Amendment in

connection with the search of his vehicle and the scope of his detention. The district

court found that the search and detention were justified 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 eastbound 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 the interstate and was pulled over

shortly thereafter. Trooper Hyde asked Mr. Williams to step out of the car and join

him in the patrol car. 

Mr. Williams was extremely nervous throughout the encounter. Mr. Williams’

hands were shaking, his voice was cracking, he could not sit still, and his heart was

beating so fast that Trooper Hyde was able to see his chest jerk. Mr. Williams

admitted to Trooper Hyde that he had exited the interstate to avoid the traffic stop.

Trooper Hyde asked Mr. Williams where he and his passengers had been and where

they were going. Mr. Williams identified all of the passengers in the van, although
-3-

he knew one passenger only as “Larry.” Mr. Williams 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 car and went to speak with

the passengers in the vehicle. The passenger identified as Mr. Williams’ girlfriend

and the passenger known as “Larry” (later identified 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 questioned Mr. Williams

about his travel history. Mr. Williams stated that he might have picked up “Larry”

in Oklahoma. Mr. Williams continued to appear extremely 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 Trooper 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 sniff 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 vehicle 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 intent to distribute over 500

grams of methamphetamine, carrying a firearm in relation to a drug trafficking crime,

possession of a firearm in furtherance of a drug trafficking 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 evidence, 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, 2004, the district judge issued an

order adopting the magistrate judge’s recommendation and denying the motion to

suppress.

Mr. Williams challenges the district court’s determination that the detention

was justified; he does not challenge the validity of the initial stop. The Government

does not argue that Mr. Williams consented to the search of his vehicle. 

Discussion

When reviewing an order denying a motion to suppress, we accept the district

court’s factual findings unless they are clearly erroneous, 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 (10th Cir. 2003). The credibility of witnesses, the weight to

be given evidence, and the reasonable inferences drawn from the evidence fall within

the province of the district court. United States v. Kimoana, 383 F.3d 1215, 1220

(10th Cir 2004). The ultimate determination of reasonableness under the Fourth

Amendment is a question of law reviewed de novo. Zabalza, 346 F.3d at 1258.

The Fourth Amendment prohibits unreasonable searches and seizures by the

Government. U.S. CONST. amend. IV. Its protections extend to brief investigatory

stops of persons or vehicles that fall short of traditional 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 announced in Terry v. Ohio, 392 U.S.

1, 19-20 (1968).

The first inquiry under Terry is whether the stop was justified at its inception.

“[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-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc). Mr. Williams does not

challenge the validity of the initial stop. Trooper Hyde was justified in stopping Mr.

Williams because he observed that Williams was speeding and not wearing his

seatbelt.
-6-

The second Terry inquiry is whether the officer’s conduct during the detention

was reasonably related in scope to the circumstances which justified the initial stop.

Terry, 392 U.S. at 20. An officer may detain a motorist for questioning unrelated to

the initial traffic stop if he has an objectively reasonable and articulable suspicion

that illegal activity has occurred, or the driver voluntarily consents to further

questioning. See United States v. Galindo-Gonzales, 142 F.3d 1217, 1221 (10th Cir.

1998). It is undisputed that Mr. Williams did not consent to any search. The

question is whether Trooper Hyde had an objectively reasonable and articulable

suspicion of illegal activity that would justify prolonging the detention. See United

States v. Williams, 271 F.3d 1262, 1268 (10th Cir. 2002) (recognizing that the refusal

to consent to search cannot be part of the reasonable suspicion calculus, but rather

"our analysis turns on whether sufficient and specific articulable facts existed which,

when considered together, provided the officer with reasonable 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 reasonable suspicion. Mr. Williams

was extremely nervous during his encounter with Trooper Hyde; his hands were

shaking, his voice was cracking, he could not sit still, 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. Williams and his passengers gave
-7-

inconsistent stories when asked where they were coming 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 most favorable to the district court’s

ruling, these findings of fact are not clearly erroneous. 

Mr. Williams argues that, when viewed one-by-one, the factors did not give

rise to reasonable suspicion. The Supreme Court has expressly rejected this sort of

“divide-and-conquer” analysis; a court may not evaluate 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 “totality of the circumstances” to

see whether the officer had a “particularized and objective basis for suspecting legal

wrongdoing.” Arvizu, 534 U.S. at 273. 

The fact that Mr. Williams offered explanations for the suspicious

circumstances is immaterial. A law enforcement officer 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 (10th Cir. 2003). Although reasonable

suspicion may not be based upon a refusal of consent to a search, 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 observations made prior to the refusal.

During the lawful detention, Trooper Hyde retrieved a trained canine from his

police car and conducted a canine search on the exterior 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 presence 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 (10th Cir. 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 basis for suspecting legal

wrongdoing. Because the stop and detention were based upon reasonable suspicion,

and the canine sniff provided probable cause for the search, they did not violate the

Fourth Amendment.

Conclusion

We AFFIRM the decision of the district court.