UNITED STATES COURT OF APPEALS

Tenth Circuit

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80294

(303) 844-3157

Patrick Fisher Elisabeth A. Shumaker

Clerk Chief Deputy Clerk

June 18, 1996

TO: ALL RECIPIENTS OF THE CAPTIONED ORDER AND JUDGMENT

RE: 95-1415 USA v. Dove

 June 14, 1996 by The Honorable John C. Porfilio

Please be advised of the following correction to the captioned decision:

The file stamp date is incorrect on all but the electronic copies. The correct date 

of filing is June 14,1996.

Please make the appropriate correction to your copy.

Very truly yours,

Patrick Fisher, Clerk

Beth Morris

Deputy Clerk
* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 6/14/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LEVELL DOVE, JR.,

Defendant-Appellant.

No. 95-1415

(D.C. No. 95-CR-115-01-Z)

(District of Colorado)

ORDER AND JUDGMENT*

Before PORFILIO, HOLLOWAY, and LUCERO, Circuit Judges.

Levell Dove, Jr., was indicted for possession with intent to distribute cocaine and

aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Mr. Dove

entered a guilty plea conditioned upon his right to appeal the district court’s denial of his

motion to suppress evidence seized after a search of his van. He now appeals, and we

reverse.
1Colo. Rev. Stat. § 42-4-201(4) states: No vehicle shall be operated upon any highway

unless the driver’s vision through any required glass equipment is normal and unobstructed.

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On the afternoon of March 21, 1995, Trooper Millard was driving west on I-70

when he saw a gray-blue Dodge van driving in the opposite direction. The van was not

exceeding the 65 m.p.h. speed limit, but Trooper Millard noticed there were dark objects

hanging from the rear view mirror of the van. Believing this to be a violation of a

Colorado statute,1 Trooper Millard made a U-turn, pursued the van, and signaled the

driver, Mr. Dove, to pull over.

After pulling over the van, Trooper Millard informed Mr. Dove he had been

stopped for obstruction of vision and asked for Mr. Dove’s driver’s license, registration,

and proof of insurance. Mr. Dove, who was traveling with two other companions, 

handed Trooper Millard a California identification card and began to rummage in the

glove compartment for the other documents. Trooper Millard asked who owned the van,

and Mr. Dove, after some thought, informed the trooper the van belonged to a female

friend who was not traveling with him. Eventually, Mr. Dove was able to produce the

van’s registration but never located the proof of insurance card.

A computer check showed no outstanding arrest warrants or reports that the van

was stolen. The computer did show, however, Mr. Dove’s California license had expired. 

Upon returning Mr. Dove’s identification card and registration, Trooper Millard notified

Mr. Dove of his expired driver’s license and asked him to step out of the van. The two

walked to the rear of the van where Trooper Millard asked Mr. Dove if anyone aboard
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had a valid driver’s license. After learning one of the passengers did indeed have a

license, Trooper Millard informed Mr. Dove that passenger would have to drive from

there. At that point, seven to ten minutes had elapsed since the initial stop.

After instructing Mr. Dove to allow the licensed passenger to drive, Trooper

Millard asked Mr. Dove if he had any drugs inside the van. Although Mr. Dove denied

the presence of drugs, Trooper Millard asked to search the van, and Mr. Dove granted

permission to do so. In the rear of the van, Trooper Millard found a leather coat

containing a plastic bag holding several ziplock bags, a razor blade, and a bent business

card, but no drugs. 

About that time, Dave Kechter, an off-duty Denver Police Department narcotics

detective, pulled up in his personal vehicle with his narcotics dog and offered his

assistance. With Trooper Millard’s permission, Detective Kechter canvased the van a

second time with his narcotics dog. During this search, the dog “alerted” to the presence

of drugs located in an inside panel of the van. Trooper Millard then confiscated the drugs

and placed Mr. Dove and his two passengers under arrest. 

Mr. Dove was subsequently indicted for possession of cocaine with intent to

distribute in violation of 21 U.S.C. § 841(a)(1) and aiding and abetting in violation of 18

U.S.C. § 2. He filed a motion to suppress tangible and oral evidence obtained after the

traffic stop. After the district court denied the motion orally from the bench, Mr. Dove

entered a guilty plea conditioned upon his right to appeal the district court’s denial of his
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motion to suppress. He was sentenced to the statutory minimum term of ten years’

imprisonment and five years’ supervised release.

On appeal, Mr. Dove contends the district court erred in denying his motion to

suppress. He argues, first, his continued detention after a routine traffic stop was not

supported by a reasonable suspicion or voluntary consent. Mr. Dove next asserts the

search exceeded the scope of his consent. Finally, Mr. Dove contends the initial stop was

pretextual. We reach only the first issue. 

Mr. Dove argues his continued detention was not reasonably related to the traffic

violation that allegedly justified the initial stop or to the other traffic violations that were

subsequently discovered. He contends once Trooper Millard addressed the obstructed

window violation, ascertained the van was not stolen, and was satisfied a licensed driver

was present, the detention should have ended because there were no specific and

articulable facts which warranted shifting the focus of the intrusion from a traffic stop to

a drug investigation. 

In reply, the government argues the continued detention was legal because Mr.

Dove voluntarily consented to the officer’s further questioning. The government argues

Mr. Dove’s consent was voluntary because at the time consent was given Trooper Millard

had returned Mr. Dove’s identification card and registration. Citing United States v.

Werking, 915 F.2d 1404 (10th Cir. 1990), the government asserts a reasonable person

would have concluded the traffic stop was over and he was free to leave. 
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In denying Mr. Dove’s motion to suppress, the district court found the detention

following the stop was reasonable for five reasons. First, Mr. Dove had no driver’s

license or proof of insurance. Second, he did not own the van. Third, he could not

“readily” provide the name of the van’s owner. Fourth, he could not immediately find the

van’s registration. And fifth, there were at least three, and possibly more, air fresheners

in the van. 

In reviewing the denial of a motion to suppress, this court must accept the factual

findings of the district court unless they are clearly erroneous. United States v. BoteroOspina, 71 F.3d 783, 785 (10th Cir. 1995) (en banc), petition for cert. filed, (U.S.

March 1, 1996) (No. 95-8121). However, the ultimate determination of reasonableness

under the Fourth Amendment is a question of law which we review de novo. Id. 

A traffic stop is an investigative detention subject to the strictures of the Fourth

Amendment. Id. at 786. The test for the reasonableness of an investigative detention is

“whether the officer’s action was justified at its inception,” and “whether it was

reasonably related in scope to the circumstances which justified the interference in the

first place.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)). The issue here is

whether Mr. Dove’s subsequent detention was reasonably related in scope to Trooper

Millard’s reasons for instigating the stop.

We have held:

An officer conducting a routine traffic stop may request a driver’s license

and vehicle registration, run a computer check, and issue a citation. When
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the driver has produced a valid license and proof that he is entitled to

operate the car, he must be allowed to proceed on his way, without being

subject to further delay by police for additional questioning. 

United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.) (citations omitted)

(quoting United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988), overruled on

other grounds by, Botero-Ospina, 71 F.3d 783 (10th Cir. 1995)), cert. denied, 114 S.Ct.

1862 (1994)). Further questioning is permissible, however, if “(1) during the course of

the traffic stop the officer acquires an objectively reasonable and articulable suspicion

that the driver is engaged in illegal activity or (2) the driver voluntarily consents to the

officer’s additional questioning.” United States v. Sandoval, 29 F.3d 537, 540 (10th Cir.

1994) (citations omitted). Neither of these exceptions is present here.

Trooper Millard could not have formed an objectively reasonable and articulable

suspicion Mr. Dove was engaged in unlawful activity. In determining whether an officer

could have formed a reasonable suspicion of criminal activity, we consider “the totality of

the circumstances,” United States v. Fernandez, 18 F.3d 874, 878 (10th Cir. 1994), and

we defer to “the ability of a trained law enforcement officer to distinguish between

innocent and suspicious actions.” United States v. Martinez-Cigarroa, 44 F.3d 908, 912

(10th Cir.) (Baldock, J., concurring), cert. denied, 115 S.Ct. 1386 (1995) (citing United

States v. Sokolow, 490 U.S. 1, 8 (1989)). An officer’s conduct is evaluated “in light of

common sense and ordinary human experience.” United States v. McRae, 81 F.3d 1528,
2The district court mentioned two other factors supporting its conclusion the detention

was justified. However, Trooper Millard did not rely on these factors in formulating his

suspicion drugs were present in the van. Therefore, the district court erred in considering these

two factors. See, e.g., United States v. Lee, 73 F.3d 1034 (10th Cir. 1996) (citing Terry, 392

U.S. at 21, and stating a police officer must be able to point to specific and articulable facts

warranting continued detention).

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1534 (10th Cir. 1996) (quoting United States v. King, 990 F.2d 1552, 1562 (10th Cir.

1993)). 

Trooper Millard testified he suspected drug activity when he approached the van

the first time because he noticed a lot of air fresheners hanging throughout the vehicle and

detected their pleasant, but not overwhelming smell. Trooper Millard was also suspicious

because Mr. Dove did not own the vehicle and could not “readily” give him the name of

the registered owner of the van.2 

Based on the facts here, we do not think Trooper Millard could have formed a

reasonable and articulable suspicion Mr. Dove was involved in some drug-related

activity. The strongest support for Trooper Millard’s alleged suspicion was the presence

of three or more air fresheners in the van. However, air freshener alone cannot provide a

reasonable suspicion that drugs are present. See, e.g., United States v. Alvarez, 68 F.3d

1242, 1245 (10th Cir. 1995) (McKay, J., concurring) (“Standing alone, air freshener is not

sufficient to justify a reasonable search for drugs.”), cert. denied, 116 S.Ct. 1436 (1996). 

Air freshener coupled with other suspicious circumstances may support further

reasonable inquiry. See, id. (strong smell of air freshener and fact that large truck was
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rented to merely transport clothes provides basis for subsequent investigation). However,

the additional “circumstances” in this case, namely, Mr. Dove’s inability to readily

provide the name of the van’s owner and the fact that he did not own the van, are not in

themselves suspect. Therefore, we hold Mr. Dove’s continued detention was not

supported by a reasonable and articulable suspicion.

The government does not address whether the continued detention was justified

based on Trooper Millard’s reasonable and articulable suspicion. Instead, the government

contends the detention was permissible because Mr. Dove consented to it. Whenever the

government relies on the consent of the defendant to validate a search, the government

bears the burden of proving the consent was “freely and voluntarily given.” Sandoval, 29

F.3d at 539 (quoting Florida v. Royer, 460 U.S. 491, 497 (1983)). 

Here, the government argues after Trooper Millard returned Mr. Dove’s California

identification card and registration Mr. Dove was free to leave. Therefore, any

subsequent questioning was completely voluntary. We have stated, after a driver in a

routine traffic stop has his documentation back, “questioning about drugs and weapons or

a request for voluntary consent to search may be ‘an ordinary consensual encounter

between a private citizen and a law enforcement official,’” United States v. Turner, 928

F.2d 956, 958 (10th Cir.) (quoting United States v. Werking, 915 F.2d 1404, 1408 (10th

Cir. 1990)), cert. denied, 502 U.S. 881 (1991), “so long as a reasonable person under the
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circumstances would believe he was free to leave or disregard the officer’s request for

information.” United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir. 1993).

Nevertheless, we have also indicated the return of a driver’s documentation does

not automatically render subsequent detention voluntary. In Sandoval, for example, we

held the driver’s subsequent detention was involuntary even though the police officer had

returned the driver’s license and registration. In that case, the officer asked the driver to

accompany him back to his patrol car. Once in the patrol car, the officer cautioned the

driver about the need to obey the speed limit and then handed over his license and

registration. In response to the driver’s query, “that’s it?,” the officer said, “No, wait a

minute,” and proceeded to ask the driver questions about his possible involvement with

drugs. The driver then granted permission for the officer to search his vehicle, and the

officer subsequently located the contraband. 

In determining whether the consent was voluntary once the officer returned the

driver’s documentation, we held the appropriate analysis was whether the driver “ha[d] an

objective reason to believe that he was not free to end his conversation with the law

enforcement officer and proceed on his way.” Id., 29 F.3d at 540 (quoting Werking, 915

F.2d at 1408). The court then concluded the driver’s consent was not voluntary given the

“totality of the circumstances.” 

In this case, as in Sandoval, the driver’s consent to further questioning was

involuntary. When Trooper Millard returned Mr. Dove’s documentation, the trooper
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contemporaneously asked Mr. Dove to step out of the car. Next, the trooper walked Mr.

Dove to the back of the van, questioned him about the presence of a licensed passenger,

and informed him the licensed passenger would need to drive. Trooper Millard then

asked Mr. Dove about drugs in the van. At no point during this exchange did the trooper

inform Mr. Dove he was free to leave. See United States v. Gregory, 79 F.3d 973, 979

(10th Cir. 1996) (“[I]n determining whether consent is voluntary when given following

the return of defendant’s documents, we look at such factors as whether the officer

informed the defendant that he was free to leave....”). Nor do we believe, based on the

totality of the circumstances, a reasonable person in Mr. Dove’s situation would have felt

free to do so. 

McNeely and Werking are distinguishable. In neither case was the driver asked to

step outside his car after his documentation was returned. Instead, the police officers,

without any “overbearing show of authority,”Werking, 915 F.2d at 1409, merely asked a

few questions after returning their documentation. Unlike this case, nothing in McNeely

and Werking indicated a reasonable person would not have felt free to end the encounter. 
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 Because we hold the continued detention was unlawful, we need not decide the

other issues raised by Mr. Dove. The judgment of the district court is REVERSED and

REMANDED with instructions to grant the motion to suppress.

ENTERED FOR THE COURT

John C. Porfilio

Circuit Judge