PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.DANIEL ENRIQUE PADILLAESPARZA, Defendant - Appellant. No. 14-2191

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 2:13-CR-03676-KG-1)

Kari Converse, Assistant Federal Public De fender (Stephen P. McCue, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Albuquerque, New Mexico, appearing for Defendant-Appellant. Anna R. Wright, Special Assistant United St ates Attorney (Damon P. Martinez, United States Attorney, with her on the brief), Office of the United States Attorney, Las Cruces, New Mexico, appearing for Plaintiff-Appellee.

Before LUCERO , TYMKOVICH , and MATHESON , Circuit Judges.

MATHESON , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### August 14, 2015
Elisabeth A. Shumaker Clerk of Court-2- United States Customs and Border Prot ection (“CBP”) Officer Manuel Aguilera issued a “Be on the Lookout” (“BOLO”) alert for Daniel Padilla-Esparza and his truck for suspected bulk cash or drug smuggling. Based on the BOLO, United States Border Patrol agents (“BPAs”) stopped Mr. Padilla -Esparza after he crossed the Las Cruces, New Mexico border patrol checkpoint. Th e BPAs released him because they believed they had stopped the wrong truck. When th ey discovered a few minutes later they had actually stopped the right truck, they initiated a second stop. After a drug-detection dog alerted to the presence of narcotics, they discovered 16 kilograms of cocaine in a nonfactory compartment. Based on the evidence sei zed, a federal grand jury ch arged Mr. Padilla-Esparza with one count of possession with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(A). He f iled a motion to suppress, contending the BPAs seized evidence in viola tion of the Fourth Amendment. The district court denied his motion. He then entered a conditional guilty plea, re serving the right to appeal the denial of his motion to suppre ss. Mr. Padilla-Esparza now appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. BACKGROUND A. Factual Background Mr. Padilla-Esparza is a Mexican citizen and United States lawful permanent resident. On February 25, 2013, he was traveling from Mexico to the United States through the Paso del Norte (“PDN”) port of entry in El Paso, Te xas. CBP officers-3- stopped Mr. Padilla-Esparza after a drug-detec tion dog alerted to his truck. Officers searched his truck and found an empty, hidde n non-factory compartment. The officers released Mr. Padilla-Esparza, but they entered an alert on the Treasury Enforcement Communications System (“TECS”) 1 regarding Mr. Padilla- Esparza and his truck—a silver Honda Ridgeline with temporary license plates. Nearly seven months later, on Septem ber 7, 2013, CBP officers conducting outbound inspections stopped Mr. Padilla-E sparza at PDN while he was traveling southbound to Mexico. Mr. Pad illa-Esparza had two pieces of luggage and declared that he had $300 in cash. Shortly thereafter, he reported having an additional $2,000 in cash
hidden in a camera case. Th e officers referred Mr. Padilla-Esparza for further inspection and ran his information through the TECS, wher e they came across the February 25, 2013 TECS alert. The officers informed CBP Officer Aguilera. He ran a query for the prior six months and learned that Mr. Padilla-Esparza had traveled through the Las Cruces and Alamogordo, New Mexico border patrol checkpoints at least once per month. Officer Aguilera and his partner interv iewed Mr. Padilla-Esparza. Mr. PadillaEsparza told them he was traveling from his home in Denver, Colorado to meet his girlfriend at the airport. He told them he owned a landscaping business and worked for clients in Albuquerque, Santa Fe, and Colorado. He had no paperwork for his last three

1 TECS is a database used by CBP to in put information related to a particular person and create alerts.-4- jobs, could not remember the names or addresse s of his last three clients, and could not remember how much he was paid for each job. The officers also searched Mr. PadillaEsparza’s belongings and found receipts totaling $1,300 for new clothing from outlet malls. Based on his knowledge and experi ence, Officer Aguilerafound Mr. PadillaEsparza’s spending habits and his limited e xplanation of his landscaping business to be inconsistent. Later that day, Officer Aguilera crea ted a second TECS al ert for Mr. PadillaEsparza, noting possible bulk cash or drug smuggling, and updated TECS with Mr. Padilla-Esparza’s permanent license plate number. Officer Aguilera also set up an alert to be sent to his cell phone when Mr. Pa dilla-Esparza returned to the United States. On September 10, 2013, Officer Aguile ra received an alert that Mr. PadillaEsparza had re-entered the United States. O fficer Aguilera contacted the CBP Operations Center and activated a BOLO for Mr. Padilla -Esparza and his truck. The Operations Center disseminated the BOLO to the Unite d States Border Pa trol and other law enforcement agencies. The BOLO stated, Daniel Enrique Padilla Esparza . . . may attempt to smuggle narcotics or currency thru the Las Cruces or Alamog ordo Border Patrol Checkpoints. Subject may be driving a Gray Honda Ridgeline bearing Colorado plates 236YWY. Vehicle has a non factory co mpartment on top of the gas tank. Subject last made entry into the Un ited States on 9/10/1 3 at 2109 hours (MDT) thru the Paso Del Norte Port of Entry. Lookouts have been generated on subject and vehicle. If encountere d, detain and conduct intensive exam. Supp. ROA at 38.-5- Three days later, on September 13, 2013, at around 6:00 a.m., BPAs at the Las Cruces Border Control checkpoint on Inte rstate 25 reviewed Mr. Padilla-Esparza’s BOLO during their morning meet ing. Later that day, arou nd noon, Mr. Padilla-Esparza entered the Las Cruces Border Patrol checkpoin t in his truck. It was raining hard and traffic was heavy. For safety reasons , BPA Cindy Morales, who was conducting northbound inspections, exercised her discreti on to temporarily forgo inspections and waved vehicles through, includ ing Mr. Padilla-Esparza’s. At the same time, BPA Ivan Cervantes was monitoring the License Plate Reader (“LPR”). 2 When Mr. Padilla-Esparza’s truck en tered the ramp leading up to the checkpoint, the LPR alerted that Mr. Padilla-E sparza’s vehicle had a BOLO on it. BPA Cervantes informed BPA Morales. 3 BPA Morales stopped traffic, and both agents began searching for Mr. Padilla-Esparza’s truck. BPA Cervantes spotted the truck leaving the checkpoint and realized that BPA Morales had al ready waved it through. BPA Cervantes informed BPAs Erik Ca nsino and Gary Adam s that he believed the subject of the BOLO reviewed at the mo rning meeting had just been waved through the checkpoint. He then go t into his service truck with his drug-detection dog and

2 The LPR takes photos of inbound vehicles’ license plates and runs checks on the vehicle, including any alerts. It then relays the information to BPAs.

3 BPA Cervantes only briefly glanced at the LPR’s screen before contacting BPA Morales. As a result, he on ly noted the vehicle’s color a nd make. He did not remember the BOLO subject’s name or license plate number.-6- proceeded after Mr. Padilla-E sparza. BPAs Cansino an d Adams also pursued Mr. Padilla-Esparza in a separate car. BPAs Cansino and Adams caught up with Mr. Padilla-E sparza first. At 12:04 p.m., they stopped his truck on I-25, approximately 15 miles from the checkpoint. BPA Adams reported to dispatch th at they had pulled over a tr uck bearing Colorado license plate 236YWY. BPA Cansino then approached the drive r’s side window. As he approached, Mr. Padilla-Esparza rolled down his window and handed BPA Cansino his driver’s license and permanent resident alie n card. BPA Cansino quickly looked into Mr. Padilla-Esparza’s truck to make sure he was th e only occupant. He then returned to his vehicle. As BPA Cansino was returning to his vehicl e, BPA Cervantes arrived at the scene. BPA Cervantes erroneously in formed BPA Cansino that the subject of the BOLO had New Mexico license plates, and that they ha d stopped the wrong ve hicle. BPA Cansino immediately returned Mr. Padilla-Esparza’s documen ts and released him. As Mr. Padilla-Esparza was driving away , BPA Adams again contacted dispatch. Dispatch informed the agents that Mr. Padilla-Esparza’s truck was in fact the subject of the BOLO. Upon learning this information, the agents began pursuing Mr. PadillaEsparza again. At 12:07 p.m., BPAs Cans ino and Adams initiated a second traffic stop of Mr. Padilla-Esparza two miles down the road. BP A Cansino asked Mr. Padilla-Esparza for consent to perform a can ine search of his truck. He consented.-7- BPA Cervantes arrived with his drug- detection dog and confirmed with Mr. Padilla-Esparza his consent to th e search. The dog, which was certified to detect the odor of narcotics, began alerting midway along th e tailgate and tried to get underneath the truck. The BPAs informed Mr. Pad illa-Esparza that the dog had alerted to his truck. Due to the rain, BPA Cansi no asked Mr. Padilla-Esparza if he would follow the agents back to the checkpoint. Mr. Padilla-Esp arza agreed. At the checkp oint, BPA Cervantes searched Mr. Padilla-Esparza’s truck and found 16 ki lograms of cocaine in the non-factory compartment. B. Procedural Background On November 13, 2013, a federal grand jury indicted Mr. Pa dilla-Esparza for one count of possession with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). On March 21, 2014, Mr. Padilla-Esparza moved to suppress the evidence seized from his truck. After conduc ting an evidentiary hearing, the district court denied the motion. Mr. Padilla-Esparza pled guilty under a conditional plea agreement that allowed him to appeal the district court’s denial of his motion to suppress. The court sentenced him to 78 months in prison fo llowed by two years of supervis ed release. Mr. Padilla timely appealed.-8- II. DISCUSSION Mr. Padilla-Esparza challenges the district court’s denial of his motion to suppress on two grounds. 4 He argues (1) the first stop on September 13, 2013, was unlawful because Officer Aguilera lacked reasonable suspicion to issue the September 10, 2013 BOLO, which was the basis for the stop, and (2) the BPAs lacked reasonable suspicion for their second stop. We conclude reasona ble suspicion supported both the BOLO and the second stop. Accordingly, we affirm.
A. Standard of Review and Legal Background 1. Standard of Review In reviewing “a district court’s denial of a motion to suppress, we review de novo the district court’s ultimate determina tion of reasonableness under the Fourth Amendment.” United States v. Ruiz , 664 F.3d 833, 838 (10th Cir. 2012). “[W]e accept the district court’s factual findings unless th ey are clearly erroneous and we view the evidence in the light most favorab le to the prevailing party.” Id.
2. Legal Background The Fourth Amendment pr otects individuals from “ unreasonable searches and seizures.” U.S. Const. am end. IV. A traffic stop is a seizure under the Fourth Amendment. United States v. Rodriguez-Rodriguez , 550 F.3d 1223, 1226 (10th Cir. 2008). A traffic stop is valid if it (1) is “j ustified at its incepti on” by “specific and

4 Before the district court, Mr. Padilla-Esp arza also argued the evidence should be suppressed on five additional grounds. On app eal, he does not contest the district court’s denial of his motion on these grounds.-9- articulable facts” that “give rise to a reas onable suspicion a person has or is committing a crime,” United States v. Whitley , 680 F.3d 1227, 1232 (10t h Cir. 2012), and (2) is “reasonably related in scope to the circumstan ces which justified th e interference in the first place,” United States v. Tibbetts , 396 F.3d 1132, 1136 (10th Cir. 2005). Although reasonable suspicion is a less ri gorous standard than probable cause, it requires “more than an inchoate and unp articularized suspicion or hunch.” United States v. McHugh , 639 F.3d 1250, 1255 (10th Cir. 2011) (quotations omitted). In determining whether reasonable suspicion exis ts, we consider the totality of the circumstances “rather than assessing each factor or piec e of evidence in isolation.” Id. at 1256. “Under this objective standard, we ask whether the facts ava ilable to the detaining officer, at the time, warranted an officer of reasonable caution in believing the action taken was appropriate.” Id. (quotations omitted). Office rs “need not rule out the po ssibility of innocent conduct,” United States v. Arvizu , 534 U.S. 266, 277 (2002 ), and may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information availabl e to them that might well elude an untrained person,” id. at 273 (quotations omitted). “When law enforcement officials rely on a bulletin or alert to conduct a stop or make an arrest, the relevant inquiry is whet her the officer who issued the alert—rather than the officer who conduc ted the challenged action—had the requisite level of suspicion.” Rodriguez-Rodriguez , 550 F.3d at 1227; accord United States v. Hensley , 469 U.S. 221, 233 (1985). Therefore, we must ask (1) whether Officer Aguilera had-10- reasonable suspicion that Mr. Padilla-Esparza wa s engaging in criminal activity to issue the BOLO, and (2) whether reasonable suspici on still existed when the BPAs initiated the second stop.
B. Analysis 1. Officer Aguilera Had Reasonable Suspicion to Issue the BOLO Mr. Padilla-Esparza argues the first stop violated the Fourth Amendment because Officer Aguilera did not have reasonable susp icion to issue the BOLO. We disagree. The following facts, known to Officer Agu ilera, formed a reasonable basis to issue the BOLO. First, he knew a drug-detecti on dog had alerted to a hidden, non-factory compartment in Mr. Padilla -Esparza’s truck on February 25, 2013. Based on his experience as a 16-year veteran of the CBP, Officer Aguilera knew such compartments often are used to hide contraband, and that the dog alert suggested the compartment may have been used to store currency or narcotics. Second, Officer Aguilera knew that on September 7, 2013, Mr. Padilla-Esparza initially failed to declare $2,000 dollars he had hidden in his camera case and that currency or drug smugglers of ten do not declare the full amount of cash they carry across the border. Third, Officer Aguilera knew that on Se ptember 7, 2013, Mr. Padilla-Esparza had receipts for $1,300 in clothing purchases from outlet malls. He detected inconsistencies between these purchases and Mr. Padilla-Espar za’s inability to offe r any details about-11- how he made money, including the identity of his most recent landscaping clients or how much he was paid for each job. Finally, Officer Aguilera knew Mr. Pad illa-Esparza had frequently traveled through the Las Cruces and Alamogordo chec kpoints in the past six months, which was consistent with bulk cash or drug smuggling. 5 Considering the totality of the circumstances, see United States v. Sokolow , 490 U.S. 1, 8-10 (1989), we conclude Officer Aguilera had reasonable suspicion Mr. Padilla was involved in cr iminal activity. Mr. Padilla-Esparza raises two arguments. First, he argues that the facts relied on by the district court are subject to innocent explanations. In particular, he argues the mere existence of a hidden compartment, his statemen ts regarding his landscaping business, and his travel through checkpoints are all subject to innocent explanation. Perhaps they are, but the possibility of innocent explan ations does not foreclose reasonable suspicion, Arvizu , 534 U.S. at 277, and does not undermine it here. Second, Mr. Padilla-Esparza argues he had traveled through the New Mexico checkpoints the prior six months without BPAs finding anything suspicious. Nothing in

5 The Government also relies on Officer Aguilera’s testimony that Mr. PadillaEsparza stated “I never go to Mexico,” in response to Officer Agu ilera’s asking why he did not take his vehicle into Mexico. ROA, Vol. III at 23. Mr. Padilla-Esparza argues that his response most likely reflects a language barrier given that he was in line to enter Mexico at the time. We do not rely on this statement to affirm on the issue of reasonable suspicion.-12- the record, however, indicates the BPAs sear ched Mr. Padilla-Esparza’s truck during that time. Accordingly, because Offi cer Aguilera had reasonabl e suspicion to issue the BOLO, the first stop was valid and the district court did not err.
2. The BPAs Had Reasonable Susp icion for the Second Stop Mr. Padilla-Esparza argues the BPAs lack ed reasonable suspicion for the second stop. He contends that (1) any reasonable suspicion based on the BOLO dissipated after the first stop and (2) the agents did not acq uire any new information between the two stops to establish reasonable suspicion. We conclude the BPAs’ reasonable suspicion was not dissipated after the first stop. The second stop was therefore reasonable. Successive investigatory stops are not per se prohibited, though a second stop is “inherently more intrusive and coercive than the first.” United States v. Ilazi , 730 F.2d 1120, 1126 (8th Cir. 1984). Ra ther, a second stop violates the Fourth Amendment when the prior stop had dissipated the reasonable suspicion offered to justify the second stop. See United States v. Peters , 10 F.3d 1517, 1522 (10th Cir. 1993). A law enforcement official may perform a second investigatory st op as long as nothing in the first encounter “serves to dispel his [or her] fears and susp icions” that “criminal conduct may be afoot.” Id. (quotations omitted). Mr. Padilla-Esparza’s reliance on Peters is misplaced. In Peters , two defendants were convicted of unlawful possession of identification documents and false representation of citizenship based on evidence discovered du ring a second investigatory-13- stop. Id. at 1518, 1520. A police officer first stopped the defendants in Flagstaff, Arizona for weaving. Id. at 1519. The officer obtained driver’s licenses from both, who said they were moving fro m California to Dallas. Id. The officer asked where they were originally from, and the men re sponded they were Nigerian. Id. The officer observed they were “extremely nervous.” Id. A computer check of their licenses, however, revealed no irregularities. Id. The officer decided to investigate whether the defendants were nervous because they were transporting illegal drugs. Id. He requested a drugdetection dog, but n one was available. Id. The driver consented to a manual search of the truck, which revealed no evidence of drugs or othe r illegal activity. Id. The officer issued the driver a warning for we aving and let the defendants go. Id. After the encounter, however, the officer wa s not satisfied with the search because of the defendants’ nervousness and his fa ilure to obtain a drug-detection dog. Id. The matter was referred to an agent at the border patrol station in Albuquerque, New Mexico. Id. at 1520. The agent intercepted the defe ndants’ truck and pulled them over based on what he perceived to be “nervous behavior.” Id. He also requested back-up and a drugdetection dog, which both promptly arrived. Id. The agent obtained permission to search one of the defendants’ walle ts and found a counterfeit social security card. Id. The agent and back-up officers also obtained permission to search the truck, where they found additional false identification documents. Id. The defendants moved to suppress the evidence, arguing the agent lacked reasonable suspicion for the second stop. Id. at 1518-19. The district court denied the-14- motion. Id. at 1518. We reversed, concluding th at the second stop was not valid because the DEA agent lacked “an objective and particularized ba sis for his suspicions that was reasonable and sufficient to jus tify the second intrusion.” Id. at 1521. We explained that “[t]he results of the initial stop in Flagsta ff, without any new information, dispelled any reasonable suspicion of illegal activity as a matter of law.” Id. Unlike in Peters , the BPAs’ initial stop of Mr. Pa dilla-Esparza did not dispel reasonable suspicion. After obtaining Mr. Pa dilla-Esparza’s identi fication, the agents quickly aborted the stop base d upon BPA Cervantes’s errone ous belief that they had pulled over the wrong truck. The BPAs did not question M r. Padilla-Esparza or search his vehicle. When dispatch confirmed th at they had released the correct suspect, reasonable suspicion based on the BOLO rema ined and the agents were justified in initiating a second stop. 6 The second stop did not vi olate the Fourth Amendment. 7
III. CONCLUSION Based on the foregoing, we affirm.

6 Because we conclude that reasonable su spicion was not dissipated after the first stop, we do not reach the Government’s alte rnative arguments that (1) new information supported the second stop and (2) th e good-faith exception should apply.

7 Mr. Padilla-Esparza also argues that the canine search of his vehicle was unconstitutional. In his openi ng brief, however, he argues only that the canine search was illegal because the agents di d not have reasonable suspici on to stop him. Because we conclude reasonable suspicion supported the seco nd stop, this argument also fails. To the extent Mr. Padilla-Esparza attempts to cast this as a separate ground for reversing the district court in his reply brief, we decline to consider it because it was not raised in his opening brief. See Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007).