United States Court of Appeals

Fifth Circuit



## FILED

April 7, 2005

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 04-30676

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### B ARRY 

### C. G RIER



### , A LSO K NOWN AS B ARRY C ORNELIUS G RIER

,



### Defendant-Appellant.



### _________________________

Appeal from the United States District Court

for the Western District of Louisiana



### m 3:03-CR-30031-02-RGJ

______________________________

Before S MITH , D ENNIS , and

P RADO , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: *

Barry Grier appeals his convictio n of poss ession with intent to distribute cocaine and

mari huana in violation of 21 U.S.C. §§ 841-

(a)(1) and 846. Finding no error, we affirm.

I.

Grier was the passenger in a vehicle driven

by Tommy Howard, heading east on Interstate

20 toward Atlanta, Georgia. Right before the

Camp Road exit in Ouachita Parish, Louisiana,

a sign warns motorists of a “nar c otics checkpoint” ahead , although no such checkpoint

actually existed. Howard passed the sign and * Pursuant to 5 TH C IR

. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4.2

promptly took the Camp Road exit. Deputy

Sheriff David Crane was parked at the bottom

of the exit and witnessed t he vehicle driving

eastbound in the westbound lane. Crane

imme diately pulled over the vehicle for improper lane usage.

W hen Howard opened his window, Cr ane

detected an overwhelming scent of fabric softener. He asked Howard for his driver’s license; Howard complied but avoided eye contact. Crane initiated a driver’s license check

during which he questioned Howard about his

itinerary. Howard stated that he was taking

Grier to see Grier’s father in Atlanta and that

Camp Road was a shortcut. He explained that

he was Grier’s co usin, and he named their

mothers. Howard acknowledged that he was

driving on the wrong side of the road because

he was distracted by watching Crane in his

rearview mirror.

Crane proceeded to ask Grier similar questions about their itinerary. Grier confirmed

that they were head ed to Atlanta to visit his

fat her and that he was Howard’s cousin. He

gave a name for his own mother that was different from the name Howard had stated, and

he could not give the name of Howard’s mothe r, his claimed aunt. Crane then asked Grier

whether there were any weapons in t he vehicle. Grier immediately laughed and said no.

Crane then asked whether any there were any

illegal drugs. Grier glanced around the inside

of the vehicle, then laughed and responded in

the negative.

The government concedes that although the

computer check took four to five minutes, it is

uncertain when in the course of events the dispatcher replied, and it could have been as early

as immediately before or during the questioning of Grier. After determining that Howard’s

license was valid, Crane concluded his qu est ioning of Grier and asked Howard whet her

any weapons were in the vehicle. Howard

immediately laughed and said no. Crane then

asked G rier whether there were any illegal

narcotics. Howard looked at the vehicle, and

then back at Crane with a nervous loo k, then

laughed and said no.

Crane asked How a rd whether he could

search the vehicle, and Howard conse nted.

During the search, he discovered several bricks

of cocaine hidden under the seats of the vehicle and several bricks of marihuana in the trunk, wrapped in fabric softener sheets and plastic

wrap.

Grier moved to suppress the discovered

drugs on the ground that they are fruit of an

illegal seizure under the Fourt h Amendment.

During the hearing on the motion to suppress,

Crane testified that he had reasonable suspicion that Grier and Howard were invo lved in

illegal narcotics activity based on (1) the strong o do r of fabric softener, which he knew to

be frequently used as a masking agent by drug

smugglers; (2) the fact that they were both

very nervous as he approached the vehicle and

asked him questions; (3) the in c onsistent answers about their relationship to each other;

and (4) the differences in their reactions when

asked ab o ut having either weapons or drugs.

The district court denied the motion to suppress.

After the hearing, but before the r uling,

Grier filed a motion to supplement the hearing

record with other evidence, including transcripts of the local police department’s radio

transmissions for the evening of the stop, and

Crane’s testimony at his bond hearing. Although he did not proffer any of t hese items

for the cour t ’s review, he argued that they

would prove that the stop was pretextual. The

district court denied the motion.3 II.

Grier argues that the evidence was the fruit

of an illegal stop under the Fou rt h Amendment. 1 Grier does not object to the validity of

the initial traffic stop for driving in the wrong

lane, but rather challenges the scope of the

valid stop.

As a threshold matter, we analyze vehicle

stops in accordance with of Terry v. Ohio

, 392

U.S. 1 (1968), 2 under which police investigatory stops are reviewed in two steps: We inquire (1) whethe r t he officer’s actions were

justified at the in ception of the stop; and

(2) then whether the officer’s subsequent actions were reasonably relate d in scope to the

circumstances that justi fied the stop. S ee

Brigham , 382 F.3d at 506 (citing T erry

, 392

U.S. at 19-20). Because Grier does not object

to the justification for the init ial stop, we focus

on the second stage of the Terry inquiry.

Under the secon d prong of the T erry inquiry, we must determine whether the officer’s

actions after he legiti mat ely stopped Grier

were “reasonably related to the circumstances

th at justified the stop, or to dispelling his

reasona ble suspicion developed during the

stop.” Brigham

, 382 F.3d at 507. “This is because a detention must be temporary and last no longer than is nece s sary to effect the purpose of the stop, unless further reasonable

suspicion, supported by articula ble facts,

emerges .” I

d. The essence of Grier’s argument is that the seizure was unconstitutionally

e xtended beyond the amount of time the of

ficer neede d to investigate the traffic offense

without sufficient reasonable suspicion of drug

trafficking.

According to t he factual findings made by

the district court, the officer detected the strong odor of fabric softener “immediat ely” after

Howard opened his window. The court noted

t hat Howard acted nervous during his init ial

questioning, avoided eye contact when asked

questions, and stuttered when answering, and

his hands were visibly shaking when he was

asked to step out of the vehicle. Grier does

not point t o any

thing in the record to show

that these factual findings were clearly erroneo us. Although nervousness alone may no t

support reasonable suspicion of drug trafficking, 3 the nervous an d erratic behavior of the

driver, combined with the overwhelming scent

of a known masking agent, did establish rea1 In reviewing a ruling on a motion to suppress,

we review factual findings for clear error and questions of law de novo. S ee United States v.

Brigham

, 382 F. 3 d 500, 506 n.2 (5th Cir. 2004).

The evidence

is considered in the light most favorable to the prevailing party. S ee id. (citing

United States v. Orozco

, 191 F.3d 578, 581 (5th

Cir. 1999)).

2 See United States v. Brigham, 382 F.3d 500,

506 (5th Cir. 2004) (citing Berkemer v. McCarty

, 468 U.S. 420, 439 (1984); Pennsylvania v.

Mimms , 434 U.S. 106, 109 (1977)). 3 A stopped individual may be nervous for many

reasons, and although it might be because the

individu al is trafficking drugs, the nervousness

could equally be caused by the fact that the defendant is nervous abo ut ha ving committed a wide

variety of other crimes, including the very traffic

offense for which he was pulled over for. In United States v. Dortch

, 199 F.3d 193, 199 (5th Cir.

1999), we concluded th at suspicious and inconsistent answers, nervousnes s, confusion as to the

relationship of the defendant to the vehicle’s owner

and the defendant’s absence as an authorized driver

on the renal c ontract “gave rise only to a reasonable suspicion that the car might have been stolen”

and none of these factors established “reasonable

or articulable

suspicion that [the defendant] was

trafficking in drugs.”4

sonable suspicion for drug trafficking, so

Crane had the authority to continue the investigation ev en after the initial investigation for

the traffic offense had concluded. 4

III.

Grier contends that the district court erred

in denying his motion to supp lement the suppression hearing record. We review this ruling

for abuse of discretion. 5 Grier argues that the

court erred in refusing to supplement the record with evidence that would indicate that the

init ial traffic stop was pretextual. The court

did not abuse its d iscretion in refusing to

supplement the record for this purp o se, because it is well established that an officer may

permissi bly stop a driver if there is probable cause to believe that he has committed a traffic

violation , irrespective of the officer’s subjective motivation for the stop. 6

AFFIRMED.

4 The government argues that other facts in the

record support the district court’s conclusion that

reasonable suspicio n existed for drug trafficking,

incl uding the inconsistent answers given by both

men about their common relatives, and the differences in their reactions between Crane’s questions

about whether they had any firearms or narcotics.

Although these might support the dist rict court’s

finding that reasonable suspicion existed i n this

case, we do not consider them, because the go v

ernment concedes that these questions might have

been asked after the com puter check came back

clean. Because the strong odor of fabric softener,

combined with the nervousness, gave rise to a reasonable suspicion of drug trafficking, and because

the district court did not commit cl ear error in its

d etermination that these facts were available t o

Crane before the conclusion of his investigation of

the initial reason for the traffic stop, we do not

need to determine whether the inconsistent and

suspicious answer s were given before or after the

permissible length of the initial stop.

5 Cf. United States v. Geor g e

, 201 F.3d 370,

372 (5th Cir. 2000) (stating that the standard of review for a district court’s ruling on admissibility of

evidence at trial is for abuse of discretion). 6 See Whren v. United States, 5 17 U.S. 806

(1996) (holding that an initial stop is valid if there

is an objective reason for the stop regardless of

subjective motivations); United States v. Castro

, 166 F.3d 728, 734 (5th Cir. 1999) (en banc) (“It is

well settled that t h e reasonableness inquiry under

the Fourth Amendment is an objective one, wholly

divorced from the subjectivebeliefs of police officers.”)