## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 3 2004 

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

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERWLYN ROSBOROUGH, Defendant - Appellant. No. 02-8120

Appeal from the United States District Court

for the District of Wyoming (D.C. No. 02-CR-76-J)
David A. Kubichek, Assistant United States Attorney , (Matthew H. Mead, United States Attorney, with him on the brief) District of Wyoming, for Plaintiff - Appellee. Jason M. Tangeman, Anthony, Nicholas, Tangeman & Yates, LLC, Laramie, Wyoming, for Defendant Appellant.

Before BRISCOE , McWILLIAMS, and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.

Derwlyn Rosborough appeals the district court’s den ial of his motion to suppress evidence discovered by government agents i n the search of his vehicle. We must determine under the circumstances of this c ase whether a canine alert-2-

directed toward the passenger compartment of a vehi cle gives rise to probable cause to search the vehicle’s trunk. We must also decide if the duration of the search—approximately one hour prior to the canine a lert, and one hour and fifteen minutes thereafter—implicates Fourth Amendment conc erns. Exercising jurisdiction over this matter pursuant to 28 U.S.C. § 1291, we conclude that the search did not violate the Fourth Amendment and AFFIRM

. I On May 10, 2002, at approximately 9:16 a.m., Wyoming Highway Patrolman Timothy Boumeester clocked defendant Derwlyn Rosborough driving a BMW convertible at six miles per hour over the post ed speed limit. Boumeester stopped the vehicle and requested Rosborough’s driv er’s license, registration, and proof of insurance. Boumeester learned that Rosborough and his cousin, Steven Wade, were driving to Omaha, Nebraska to return the vehicle to Rosborough’s sister. Boumeester confirmed the validity of both men’s licenses and the vehicle registration (Rosborough did not have proof of insurance), and acriminal history check revealed that both Rosborough and Wade had cr iminal histories. Boumeester returned the licenses and registration, issued a written warning for speeding, and answered the men’s request for direct ions. Almost immediately thereafter, Boumeester asked the men if he could pose some additional questions. Upon receiving their pe rmission, Boumeester asked if-3-

they had any illegal substances in the vehicle. According to Boumeester’s testimony at the suppression hearing, Rosborough re sponded by telling the officer, “[i]f you want to search the car, go ahead ,” to which Boumeester replied, “if you don’t have a problem with that, I would lik e to.” (2 R. at 20.) Around the same time, Patrolman Richard Griebe arrived on the scene. According to the testimony of Boumeester and Griebe , the officers proceeded to search the vehicle, including the inte rior, the trunk, and the bags in the trunk; they received separate consent for each section searched. Rosborough and Wade assisted the officers in their search by o pening the hood to search the vehicle’s engine, removing the soft top convertible compartment, and moving the car onto the shoulder of the road. According to Rosborough in his brief on appeal, the officers assured him at various times throughout this search that the deten tion would be brief, and that it would not last much longer. The record confirms th at Rosborough and Wade were told repeatedly that the search would end prom ptly. According to Boumeester’s testimony, before he began the initial search of the vehicle, around 9:27 a.m., he told Rosborough and Wade that “[t]his will just take a minute.” (2 R. at 60.) After smelling an odor that he thought may have been used to mask the scent of drugs, Boumeester called for a canine unit . At about 9:34 a.m., Boumeester told Rosborough and Wade that the search would not take much-4-

longer. The canine unit arrived with Patrolman David Chatfi eld shortly after 10:00 a.m., approximately forty-five minutes into the sea rch. The officers testified, and Rosborough does not contest, that Rosborough consen ted to a canine search of the inside of the vehicle. After the canine alerted to ward the front passenger area, around 10:15 a.m., one of the men admitted to havin g smoked marijuana in the car. According to Griebe, Rosborough and Wade then revoked their consent to the search of the vehicle and expressed concern abo ut the length of the detention. Despite the fact that Rosborough and Wade revoked t heir consent after the canine alert, the patrolmen renewed the search; fin ding nothing in the area in which the dog alerted, they proceeded to search the trunk. Boumeester removed the carpet from the trunk and discovered a metal wa ll separating the trunk area and back seat. A continued search of this area rev ealed approximately thirty pounds of cocaine distributed among sixteen separat e packages. The search ended shortly after 11:31 a.m. Rosborough and Wade were charged with conspiracy to possess with intent to distribute and possession with intent to distribute cocaine. Rosborough moved to suppress the evidence on the gr ounds that the search was invalid for lack of reasonable suspicion, proba ble cause, or consent to search. The district court denied the motion to suppress, finding that the search was-5-

consensual prior to the canine alert, and that the canine alert gave the officers probable cause to search the entire vehicle. Rosbo rough entered into a plea agreement, pleading guilty to possession with inten t to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). The court sent enced him to twenty years in prison, five years supervised release, and a monetary fine. Rosborough now appeals the district court’s denial of his motion t o suppress the evidence.
II In reviewing a district court’s denial of a motion to suppress, we consider the evidence in the light most favorable to the gov ernment and accept the trial court’s findings of fact unless they are clearly er roneous. United States v. Scroger , 98 F.3d 1256, 1259 (10th Cir. 1997). “The credib ility of witnesses, the weight to be given evidence, and the reasonable inf erences drawn from the evidence fall within the province of the district c ourt.” United States v. Long , 176 F.3d 1304, 1307 (10th Cir. 1999). We review de novo the ultimate determination of reasonableness under the Fourth Am endment, “[k]eeping in mind that the burden is on the defendant to prove that t he challenged seizure was illegal . . . .” Id. (citation omitted). In the context of routine traffic stops, a law enfo rcement officer may generally request a driver’s license, registration, and other required papers, run requisite computer checks, and issue citations or w arnings as appropriate. United-6-

States v. Gonzalez-Lerma , 14 F.3d 1479, 1483 (10th Cir. 1994) (quotation omitted). Further detention is appropriate only if during the course of the traffic stop, (1) the officer develops an “objectively reas onable and articulable suspicion” that the driver is engaged in some illeg al activity, or (2) “the initial detention . . . become[s] a consensual encounter.” See United States v. McRae , 81 F.3d 1528, 1534 (10th Cir. 1996) (quotation omitted). Notwithstanding these exceptions, an investigative stop must be “temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer , 460 U.S. 491, 500 (1983).
A Rosborough argues that he did not voluntarily conse nt to the search of his vehicle. In support of this claim, he explains that the fol lowing factors led him to consider himself in custody and not free to leave, such that his consent was not voluntary: (1) he was stopped in a remote location about nine miles from Laramie, Wyoming; (2) more than one patrolman was p resent; (3) Boumeester’s inquiry regarding illegal drugs immediately followe d the return of Rosborough’s license and registration; and (4) after Rosbourough agreed to have the car searched, he and Wade were ordered out of the vehic le, searched, and told to stand in the borrow ditch. Whether Rosborough freely and voluntarily consented to the search of the-7-

vehicle is a question of fact based on the totality of the circumstances, which we review for clear error. United States v. Pena , 143 F.3d 1363, 1366 (10th Cir. 1998). We consider whether the officer’s conduct constitut ed a coercive show of authority, such that a reasonable person would beli eve he was not free to “decline the officer’s requests or otherwise terminate the e ncounter.” United States v.
West , 219 F.3d 1171, 1176 (10th Cir. 2000) (quotation omitted). Factors tending to show that consent was coerced include the presen ce of more than one officer, the display of weapons, physical touching, and use of an aggressive tone. United
States v. Turner , 928 F.2d 956, 959 (10th Cir. 1991). Upon review of the relevant facts, we conclude that Rosborough’s initial consent to the search of his vehicle was voluntary. First, Boumeester returned the men’s papers and answered their inquiry about the d istance to Laramie before asking any additional questions of the men. Second, Rosborough does not assert that Boumeester touched him, threatened him, displayed his weapon, or spoke in an aggressive tone at any point in their encounter. Moreover, Boumeester did not ask Rosborough for consent to search the vehicle; t o the contrary, Rosborough himself volunteered permission to Boumeester to sea rch his car. Although the added presence of Patrolmen Griebe had the potentia l to make the situation more coercive, we conclude that the district court’s fin ding that Rosborough consented to the search is not clearly erroneous.-8-

Rosborough also suggests that even if his consent w as voluntary at the time he gave it, it ceased to be voluntary over the cour se of the search because he felt that he was not empowered to revoke his consent due to the coercive behavior of the officers. For example, Rosborough states in hi s appellate brief that the patrolmen ordered him to remain in the ditch; on tw o separate occasions, moreover, he and his cousin asked whether they were under arrest and when the search would be complete. In response to one such inquiry, Rosborough asserts that Griebe responded “when we get done.” (Br. of Appellant at 20.) Although such coercive behavior conceivably could turn a con sensual encounter into an improper detention, the record does not support suc h a conclusion. The police videos not only demonstrate continuous consultation between Boumeester and Rosborough, they also reveal Rosborough’s active as sistance in facilitating the search. Moreover, the district court noted, and Rosborough concedes, that the patrolmen acted diligently in their search and that the canine team responded with alacrity. Rosborough also concedes that he and Wade were “notnervous and in fact were quite relaxed” during the search. (Br. o f Appellant at 29.) Finally, after the canine alerted, Rosborough affirmatively asked to terminate the encounter, undermining his claim that he felt unabl e to revoke his consent. Based on these facts, we do not find clear error and thus affirm the district court’s finding that the detention remained consensual prio r to the canine alert.-9- B In addition to arguing that his consent was not vol untary, Rosborough makes the related claim that the search prior to th e canine alert exceeded the scope and duration of his consent. Rosborough gene rally argues that the extensiveness of the search exceeded the scope of h is consent, and specifically asserts that because Officers Boumeester and Griebe assured him at several points that the search would be brief or end shortly, he g ave his consent with the assumption that the search would be brief. Thus, R osoborough argues, the two and one half hour detention violated the durational limitations the Fourth Amendment imposes on investigative stops. We have held that investigative detentions arising out of routine traffic stops are analyzed under the framework of Terry v. Ohio , 392 U.S. 1 (1968), and its progeny. See United States v. Holt , 264 F.3d 1215, 1217 (10th Cir. 2001) (en banc) (per curiam). Under that line of cases, an i nvestigative detention based upon reasonable suspicion must be limited in both s cope and duration. See Royer , 460 U.S. at 500. The Supreme Court has held that a search which unduly extends a detention may violate the Fourth Amendment’s requ irement of reasonableness.
See United States v. Place , 462 U.S. 696, 709 (1983) (holding 90-minute detention of person's luggage “alone preclude[d] th e conclusion that the seizure was reasonable in the absence of probable cause”); see also United States v.-10-

Scales , 903 F.2d 765, 769 (10th Cir. 1990) (holding seven -hour delay went beyond “brevity” required under Fourth Amendment); United States v. Cagle , 849 F.2d 924, 927 (5th Cir. 1988) (holding 90-minute de tention of luggage rendered seizure sufficiently intrusive). The Court has als o stated, however, that there is no absolute rule for determining how long an invest igative detention may continue before it becomes unreasonable under the F ourth Amendment. See United States v. Sharpe , 470 U.S. 675, 685 (1985) (noting “our cases impos e no rigid time limitation on Terry stops”). Rather, the length of the stop and the potential intrusion on an individual's Fourth Amend ment rights must be juxtaposed against “the need to consider the law en forcement purposes to be served by the stop as well as the time reasonably n eeded to effectuate those purposes.” Id. ; see also United States v. Jones , 44 F.3d 860, 871 (10th Cir. 1995). Whether a search exceeds the scope and duration of consent is a question of fact, reviewable for clear error, which turns on wh at a reasonable person would have understood to be the scope and duration of his consent under the circumstances. Florida v. Jimeno , 500 U.S. 248, 251 (1991). A general grant of permission to search an automobile typically extend s to the entire car, absent an objection or an explicit limitation by the grantee. United States v. Deases , 918 F.2d 118, 122 (10th Cir. 1990). Where a defendant’ s consent is predicated explicitly on an understanding that the search will be brief, an extended detention-11-

sometimes exceeds the scope of the consent. United States v. Wald , 216 F.3d 1222, 1228 (10th Cir. 2000). Our analysis of whether the search exceeded the sc ope of Rosborough’s consent necessarily turns on Rosborough’s conduct i n granting consent. Although Rosborough argues that the search of his vehicle wa s more extensive than his consent permitted, the record reveals that prior to the canine alert, Boumeester requested and received separate consent to search t he trunk, look in the bags, and look under the hood. Rosborough and Wade objected to the scope of the se arch only afterthe canine alert. As to duration, we find nothing in the record that would suggest that Rosborough objectively communicated a request to li mit the duration of the search prior to the canine alert. Unlike the case in Wald , where we held that an officer’s request to take a “quick look” constitute s a limited request to search, Wald , 216 F.3d at 1228, Rosborough’s consent was not pr edicated on the officers’ statements that the detention would be brief. Inst ead, Rosborough generally granted permission to Boumeester to “go ahead” and search the car. (2 R. at 20.) Rosborough’s consent in the instant case was confin ed by neither time nor location. In addition to considering whether Rosborough limit ed the duration of his consent, we also look to see whether the officers a cted with due diligence in1 Other courts considering similar facts have also reached this conclusion. (continued...) -12- conducting the search. The Supreme Court has expla ined: In assessing whether a detention is too long in dur ation to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a mea ns of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to deta in the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situa tion, and in such cases the court should not indulge in unrealistic s econd-guessing. Sharpe , 470 U.S. at 686 (internal citations omitted). Applying the Sharpe analysis here, we conclude that although this dete ntion was lengthy, the district court correctly determine d, and the record reflects, that “the officers acted diligently under the circumstan ces.” (2 R. at 171-72.) Even Rosborough's counsel agreed there was no lack of di ligence in the way the officers searched Rosborough's vehicle during the p eriod leading up to the arrival of the canine unit. Although a half hour elapsed b etween the time the canine unit was called and when it arrived, the court found Cha tfield was “moving it right along in order to get to the scene of the action” a nd “responded with alacrity.” (Id. at 164.) Similarly, the court noted that, “[d]uri ng that one-half-hour-period, Officer Boumeester . . . diligently was searching f or the source of the unique” odor. (Id. ) Viewing all of these facts in a light most favor able to the government, we cannot conclude the duration of the detention was unreasonable. 11 (...continued)

See , e.g. , United States v. White , 42 F.3d 457 (8th Cir. 1994) (upholding one hour and twenty minute detention of truck pending arriva l of drug dog); United States v. Frost , 999 F.2d 737 (3d Cir. 1993) (upholding 80-minute detention due to delay in canine arrival); see also United States v. Rutherford , 824 F.2d 831, 833-34 (10th Cir. 1987) (upholding one-hour traffic stop w here nearly half of time was occasioned by problems with police computer). -13- Moreover, the additional fact that the police asked for and received Rosborough's consent at various intervals throughou t the detention also weighs strongly in favor of concluding the duration of the detention was reasonable. “It has long been established that an officer may condu ct a warrantless search consistent with the Fourth Amendment if the challen ging party has previously given his or her voluntary consent to that search.” United States v. Ringold , 335 F.3d 1168, 1174 (10th Cir. 2003). Therefore, even if the detention arguably became more than an investigative detention, Rosbor ough's repeated consents negated the need for a warrant. On these facts, we conclude that the district court’s determination that the search prior to the canine alert did not exceed the scope and duration of Rosborough’s consent was not clearly erroneous.
C Rosborough also argues that the search subsequent t o the canine alert in the passenger area of the vehicle exceeded the scope re asonably authorized by the alert. We review de novo the district court’s legal conclu sion that based on the present facts, there was probable cause to search t he trunk. United States v.2 The canine did alert to drugs in the trunk after the officers discovered the

cocaine. For purposes of our analysis—limited to t he search prior to the discovery of cocaine—the dog alerted only in the pa ssenger area. -14- Nielson , 9 F.3d 1487, 1489 (10th Cir. 1993). Rosborough tells us that because the dog directed its alert to the front passenger a rea, and not the trunk, 2 the officers were authorized to search only the specifi c area alerted to (i.e., the passenger area). We considered a factually similar scenario in United States v. Klinginsmith , where we held that when a dog alerts to a vehicle , probable cause arises allowing a search of the vehicle, including the trunk, without a warrant. 25 F.3d 1507, 1510 (10th Cir. 1994). In Klinginsmith , we did not indicate the particular area of the vehicle toward which the can ine alerted, but nonetheless held generally that a canine alert gives rise to pr obable cause to search a vehicle. Id. ; see also United States v. Ross , 456 U.S. 798, 825 (1982) (“If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conce al the object of the search.”); United States v. Ludwig , 10 F.3d 1523, 1528 (10th Cir. 1993) (concluding t hat a canine alert outside the trunk of a vehicle creates probable cause to search the inside of the trunk for drugs); United States v. An chondo , 156 F.3d 1043, 1045 (10th Cir. 1998) (concluding that a canine alert ou tside and inside of a vehicle creates probable cause to search the driver’s perso n for contraband). This case presents a species of the same question: whether a canine alert directed-15-

exclusively at the passenger compartment of a vehic le creates probable cause to search the trunk of the vehicle. Rosborough’s argument that a canine alert toward th e passenger area alone gives rise to probable cause to search only that ar ea is not without some force; our sibling circuit in United States v. Seals , 987 F.2d 1102, 1107 n.8 (5th Cir. 1993), in considering the same question, reasoned that an initial canine alert in the passenger compartment gives rise to probable cause to search only the passenger compartment of the vehicle and not the rest of the vehicle. Notwithstanding this authority, we are compelled to arrive at a differen t conclusion in light of our holding in Klinginsmith , 25 F.3d at 1510, and our reasoning in Nielson , in which we suggested that a canine alert in the passenger c ompartment of a vehicle would give rise to probable cause to search the trunk of the vehicle. 9 F.3d at 1491. In Nielson , we considered whether an officer’s detection of t he smell of burnt marijuana emanating from the passenger compartment of a vehicle gives rise to probable cause to search the trunk of the v ehicle, explaining that “[t]he scope of a warrantless search of an automobile is d efined by the object of the search and the places in which there is probable ca use to believe that it may be found.” Id. (quotation omitted). We reasoned that the smell o f burnt marijuana emanating from the passenger compartment of a vehic le would lead “a person of ordinary caution to believe the passenger compartme nt might contain marijuana.”-16-

Id. Accordingly, we held that in such a case, probabl e cause would extend only to the passenger compartment—not the trunk. See id. Although Nielson was limited to the factual scenario of an officer detecting the smell of burnt marijuana, we nonetheless sugges ted that the factual scenario involving a drug dog would yield a different result , explaining that in the case of an alert by a trained drug sniffing dog with a good record, we would not require corroboration to establish probable cause. The dog would have no reason to make a false alert . . . . [F]or a human sniffer, an officer with an incentive to find evidence of illegal activities an d to justify his actions when he had searched without consent, we believe co nstitutional rights are endangered if limitations are not imposed. Nielson , 9 F.3d at 1491. Thus, Nielson clearly implies that a canine alert toward the passenger compartment of a vehicle would give r ise to probable cause to search the vehicle’s trunk. Id. Considering our holding in Klinginsmith and our reasoning in Nielson , it would be inconsistent for us now to adopt a conflic ting rule that would limit a search to a precise area of a car. Our holdings wi th regard to drug dog alerts do not lend themselves to that level of exactness. A dog alert creates general probable cause to search a vehicle; it does not imp licate the precision of a surgeon working with scalpel in hand. Thus, we hol d that a canine alert toward the passenger area of a vehicle gives rise to proba ble cause to search the trunk as well; the search of Rosborough’s vehicle subsequentto the canine alert was3 Rosborough additionally argues that the officers’ search was not justified

by reasonable suspicion. We agree with Rosborough that the extent and duration of this search could not rest on reasonable suspici on alone. However, because we conclude that the search prior to the canine alert was based on voluntary consent, and because the search subsequent to the canine ale rt was supported by probable cause, we need not reach this claim. -17- therefore supported by probable cause. 3

III

We AFFIRM the district court’s conclusion that the search of Rosborough’s vehicle did not violate the Fourth Ame ndment.