United States Court of Appeals

Fifth Circuit



## FILED

June 3, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 03-40353

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AHMED KOFFI HENRY,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

We sua sponte withdraw the opinion of this court dated April 27, 2004, reported at

___ F.3d

___ (5th Cir. 2004). We substitute the following opinion:

Ahmed Koffi Henry appeals his conditional guilty plea conviction for making and possessing

forged securities in violation of 18 U.S.C. § 513(a). In agreeing to plead guilty, Henry reserved the

right to appeal the district court’s denial of his motion to suppress evidence seized during a traffic

stop. Henry now challenges the district court’s suppression ruling. Henry also asserts that the-2-

Government failed to comply with the terms of the plea agreement.

Henry concedes the reasonableness of the initial traffic stop. He argues, however, that the

district court should have suppressed the evidence seized from the trunk of his vehicle because the

arresting officer’s detention of Henry during the traffic stop was not “reasonably related in scope to

the circumstances that justified the stop in the first place.” S ee United States v. Grant

, 349 F.3d 192,

196 (5th Cir. 2003) (stating the second prong of the standard articulated in Terry v. Ohio

, 392 U.S.

1 (1968)). Henry’s argument fails because, under the totality of the circumstances, there were

numerous articulab l e facts supporting the arresting officer’s reasonable suspicion that Henry was

engaged in illegal activity. See Grant , 349 F.3d at 198.

After initiating the traffic stop, the arresting officer questioned Henry regarding the purpose

of his travel. S ee United States v. Gonzalez

, 328 F.3d 755, 758-59 (5th Cir. 200 3) (upholding an

officer’s questions, during a legitimate traffic stop, regarding“the purpose and itinerary of [a] trip”).

In response, Henry exhibited extreme nervous behavior, repeated the officer’s questions b efore

answering, and was unable to detail his travel plans. Specifically, Henry indicated that he was

attending a family reunion in Shreveport, but did not know where he was staying in the city. Henry

also stated that the passengers had the registration paperwork for the rental car. The arresting officer

went to the passengers, requested the rental car’s registration, and, based on Henry’s strange

behavior, questioned the passenger s about the purpose of their travel. The passengers also acted

nervous and lacked even rudimentary knowledge about the purpose of the trip. The passengers knew

only that they were going to Louisiana, but did not know their destination city. Additionally, the

passengers did not know why they were going and, thus, failed to support Henry’s statements about

a family reunion. His suspicions aroused, the officer ret urned t o Henry to inquire about his1 On appeal, Henry does not challenge his consent to t h e pat down or the officer’s discovery of the fake

identification.

2 While he does not cite the case, a previous panel’s decision lends support to Henry’s argument. S ee United

States v. Brigham

, 343 F.3d 490, 501 (5th Cir. 2003) (“If a stop is unconstitutionally prolonged by continued

questioning after a computer check is complete, then delaying the commencement of the computer check and asking

unrelated questions during such delay is equally proscribed.”). However, we vacated B righam when we agreed to hear

the case en banc

. S ee Brigha m , 350 F.3d 1297 (5th Cir. 2003) (granting e n banc rehearing); 5 TH C IR

. R. 41.3.

Further, Brigham would not control because, in this case, Henry does not establish a timeline for the arresting officer’s

questioning.

-3- knowledge of and relationship to the passengers. Henry continued to act nervous, and he could not

explain how he knew his passengers. The officer, “draw[ing] on [his] own experience and specialized

training to make inferences from and deductions about the cumulative information available[,]”

suspected that criminal activity might be afoot. See United States v. Arvizu , 534 U.S. 266, 273

(2002). Based on Henry’s nervousness, his inability to provide basic information about his trip or his

passengers, inconsistencies between Henry and his passengers, and Henry’s baggy clothes, the

arresting officer requested and received consent from Henry to perform a pat down. During the pat

down the arresting officer discovered a fake ide nt ification protruding from Henry’s sock. 1 The

discovery of the fake identification gave the arresting officer probable cau se to search the vehicle.

The officer requested permission to search the vehicle, and Henry consented. In sum, there was never

a point at which the arresting officer did not have articulable reasonable suspicion of illegal activity.

See Grant , 349 F.3d at 198.

Henry argues that the officer did not t imely initiate a computer check of his background and

that this failure renders the questioning per se unreasonable. No precedent adopts Henry’s contention

that upon initiating a traffic stop an offi cer must immediately begin a computer check. 2 Even

assuming we were inclined to analyze the reasonableness of an officer’s decision regarding when to

initiate a co m

puter check, Henry’s brief is devoid of any attempt to quantify the duration of the-4-

officer’s questioning. The absence of a relevant timeline renders it impossible to determine whether

the computer check was unreasonably delayed.

Henry contests the voluntariness of his consent to search his vehicle only to the extent that

his consent followed a detention that he argues violated the Fourth Amendment. As discussed, no

Fourth Amendment violation occurred. The premise for Henry’s argument fails. S ee United States

v. Chavez-Villareal , 3 F.3d 124, 127 (5th Cir. 1993) (the second prong of a validity of consent

challenge )) “whether it was an independent act of free will” )) depends on “causal connection with

the constitutional violation”).

Henry argues that the Gov ernment breached its promise not to take a position on whether

Henry’s sentence should run concurrently or consecutively to Henry’s sentence following a separate

conviction in the West ern Dist rict of Louisiana. Because Henry did not raise this issue in the

sentencing court, we review it for plain error only. U nited States v. Brown

, 328 F.3d 787, 790 (5th

Cir. 2003). The record of the sentencing hearing reflects no error given that the Government did not

t ake a po sition and did not act in a way that was inconsistent with the parties’ reasonable

understanding of the plea agreement. See id . at 790-91.

AFFIRMED.