* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JAN 5 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. TAD M. HINDHAUGH, Defendant-Appellant. No. 98-3096 (District of Kansas) (D.C. No. 96-CR-10080-MLB)

ORDER AND JUDGMENT *

Before TACHA , McKAY, and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he court therefore honors the parties’ requests and orders the case submitted without oral argument.-2-

Tad M. Hindhaugh entered a conditional plea of guil ty to the sole count of an indictment charging Hindhaugh with possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) an d 18 U.S.C. § 2. Hindhaugh now appeals the district court’s denial of Hindhaug h’s motion to suppress the marijuana. This court exercises jurisdiction pursu ant to 28 U.S.C. § 1291 and
affirms

. On review of a district court’s denial of a motio n to suppress, this court views the evidence in the light most favorable to the government and reviews the district court’s factual findings for clear error. United States v. Salzano , 149 F.3d 1238, 1241 (10 thCir. 1998). The district court’s conclusion that a seizure is supported by reasonable articulable suspicion is reviewed de novo

. Id. Stated briefly and in accord with this standard, the facts are as follows. On Friday, November 22, 1996, Kansas Highway Patrol Troopers Richard Jimerson and Greg Jurak observed a Mitsubishi Monte ro whose windows were mostly fogged over. Jimerson observed the Montero cross the right lane marker twice and noticed that the driver had his head lean ing back as if he was sleepy. Accordingly, the troopers activated their lights an d pulled the Montero over. Jimerson approached the Montero on the passenger si de. In the back of the vehicle, Jimerson could see a sleeping bag spread o ver the contents, although a duffel bag was in partial view. After the driver r olled down the passenger1 Jimerson testified, and the district court found, a s follows: (1) a driver

who immediately lights up a cigarette when stopped is usually trying to conceal the odor of drugs or alcohol; and (2) drivers are n ot usually so visibly nervous upon being stopped for a traffic infraction. -3- window, Jimerson informed him about the view obstru ction and asked the driver if he was tired. Jimerson saw the driver light a c igarette; the driver appeared very nervous, his hands were trembling and he was c onstantly clearing his throat. 1 The driver produced an Arizona driver’s license whi ch identified him as Tad Hindhaugh and showed a home address in Lake Hav asu City, Arizona. Jimerson testified that he was aware Lake Havasu Ci ty is located on the California border. After Jimerson noted that the c ar had Florida plates, Hindhaugh indicated the Montero was a rental. Hindhaugh stated that he did not have the rental papers with him, but that he had re nted the car in Tucson, Arizona. Jimerson testified he was aware Tucson wa s about four hours southeast of Lake Havasu City. According to Jimerson, a rece nt DEA bulletin had identified Tucson as the “marijuana warehouse” for the country. Jimerson further testified, and the district court found, that when a person has no rental papers, he is usually trying to hide where the car was rented or who rented it. Hindhaugh originally told Jimerson that he was goin g to Kansas City on vacation. Hindhaugh then changed his story and stated that he was going to St.-4-

Louis. Because the stop occurred on November 22 nd , the Montero was due back on November 24 th , St. Louis was an additional eight or nine hours away from the location of the stop, and the back of the Montero w as full of bags, Jimerson found Hindhaugh’s travel plans suspicious. Jimerson returned to the patrol car and discussed the stop with Jurak. After checking Hindhaugh’s license, Jimerson wrote a warning ticket for failing to maintain a single lane and for view obstruction. Jimerson gave Hindhaugh the ticket, returned his license, told Hindhaugh he was free to go, but indicated that he would like to ask Hindhaugh some additional ques tions. Jimerson then asked Hindhaugh if he was carrying anything illegal in th e car. When Hindhaugh responded that he was not, Jimerson asked if he cou ld search the back of the car. When Hindhaugh refused, Jimerson stated that he bel ieved Hindhaugh was transporting drugs and that the Montero would be de tained for a drug detection dog. Jimerson further informed Hindhaugh that he w as free to go, but he would have to leave the vehicle behind. A trooper with adrug detecting dog arrived approximately forty-five minutes later. When the d og alerted at the back door of the vehicle, the troopers searched the Montero and found 235 pounds of marijuana in duffel bags in the back of the vehicle

. After he was indicted for possession with intent to distribute the marijuana, Hindhaugh filed a motion to suppress. Hindhaugh di d not contest the vehicle-5-

stop. Instead, as the sole basis for suppressing the marijuana, Hindhaugh argued that the detention of the vehicle pending the arriv al of the canine unit was not supported by reasonable, articulable suspicion. The district court denied the motion to suppress, h olding as follows: An officer conducting a routine traffic stop may re quest a drivers license and vehicle registration, run a computer check, and issue a citation. When a driver has produced a val id license and proof of entitlement to operate the vehicle, the dr iver must be allowed to proceed without further delay. United States v. GonzalesLema , 14 F.3d 1479, 1483 (10 thCir. 1994). However, an investigative detention may be expanded beyond its original purpose if, during the initial stop, the officer acquires r easonable suspicion of criminal activity. The officer must acquire a p articularized and objective basis for suspecting the person stopped o f criminal activity. United States v. Villa -Chaparo , 115 F.3d 797, 801-02 (10 th Cir. 1997). The evidence is sufficient for the court to find th at such reasonable suspicion existed. Jimerson observed th e following things which gave him reasonable suspicion that def endant was transporting contraband: a freshly lit cigarette, w hich is often used to mask drug or alcohol odors; the defendant’s visible nervousness (shaking hands and clearing throat); the change in story regarding his destination; a lack of rental papers which is o ften used to hide where the car was rented or who rented it; the car was rented in Tucson while the defendant resides in Lake Havasu C ity – some 4 hours away; the improbability that the defendant co uld drive from Trego County, Kansas to St. Louis, Missouri, 8 or 9 hours away, for vacation, then back to Tucson by Sunday, November 2 4 (the date the car was to be returned); Tucson is a known source c ity for drugs; the back end of the defendant’s vehicle was full of bag s and covered up by a sleeping bag; block shapes were visible in one duffle bag that was not completely covered up. Although each of these items considered individually might not be sufficient to justify the defendant’s contin ued detention and the canine sniff, taken as a whole, the facts give rise to a reasonable suspicion of criminal activity.-6-

Dist. Ct. Op. at 6-7. Upon de novo review of the parties’ briefs and contentions, the district court’s Memorandum Opinion, and the entire record o n appeal, this court
AFFIRMS the denial of Hindhaugh’s motion to suppress for s ubstantially those reasons set out in the district court’s Memorandum Opinion dated October 22,
1997.
ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge