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

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m 04-30676

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

BARRY C. GRIER,

ALSO KNOWN AS BARRY CORNELIUS GRIER,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

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

______________________________

Before SMITH, DENNIS, and

PRADO, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Barry Grier appeals his conviction of possession with intent to distribute cocaine and

marihuana 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

byTommyHoward, heading east on Interstate

20 toward Atlanta, Georgia. Right before the

CampRoad exit inOuachita Parish, Louisiana,

a sign warns motorists of a “narcotics checkpoint” ahead, although no such checkpoint

actually existed. Howard passed the sign and

* Pursuant to 5TH CIR. 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determined that this opinion should not be published and is not precedent except under the limited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 5TH CIR. 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 the vehicle driving

eastbound in the westbound lane. Crane

immediately pulled over the vehicle for improper lane usage.

When Howard opened his window, Crane

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 cousin, 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 headed to Atlanta to visit his

father 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 mother, his claimed aunt. Crane then asked Grier

whether there were any weapons in the 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 concedesthat althoughthe

computer check took four to five minutes, it is

uncertain when in the course of eventsthe 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 questioning of Grier and asked Howard whether

any weapons were in the vehicle. Howard

immediately laughed and said no. Crane then

asked Grier whether there were any illegal

narcotics. Howard looked at the vehicle, and

then back at Crane with a nervous look, then

laughed and said no.

Crane asked Howard whether he could

search the vehicle, and Howard consented.

During the search, he discovered severalbricks

of cocaine hidden under the seats of the vehicle and several bricks ofmarihuana in the trunk, wrapped in fabric softenersheets and plastic

wrap.

Grier moved to suppress the discovered

drugs on the ground that they are fruit of an

illegal seizure under the Fourth Amendment.

During the hearing on the motion to suppress,

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

illegal narcotics activity based on (1) the strong odor 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 inconsistent answers about their relationship to each other;

and (4) the differences in their reactions when

asked about having either weapons or drugs.

The district court denied the motion to suppress.

After the hearing, but before the ruling,

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 these items

for the court’s review, he argued that they

would prove that the stop was pretextual. The

district court denied the motion.
3

II.

Grier arguesthat the evidence was the fruit

of an illegal stop under the Fourth 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

stopsin accordance with of Terry v. Ohio, 392

U.S. 1 (1968),2under which police investigatory stops are reviewed in two steps: We inquire (1) whether the officer’s actions were

justified at the inception of the stop; and

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

circumstances that justified the stop. See

Brigham, 382 F.3d at 506 (citing Terry, 392

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

to the justification for the initialstop, we focus

on the second stage of the Terry inquiry.

Under the second prong of the Terry inquiry, we must determine whether the officer’s

actions after he legitimately stopped Grier

were “reasonably related to the circumstances

that justified the stop, or to dispelling his

reasonable 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 necessary to effect the purpose of the stop, unless further reasonable

suspicion, supported by articulable facts,

emerges.” Id. The essence of Grier’s argument is that the seizure was unconstitutionally

extended beyond the amount of time the officer needed to investigate the traffic offense

withoutsufficientreasonable suspicion of drug

trafficking.

According to the factual findings made by

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

Howard opened his window. The court noted

that Howard acted nervous during his initial

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 to anything in the record to show

that these factualfindings were clearly erroneous. Although nervousness alone may not

support reasonable suspicion of drug trafficking,3

the nervous and 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 factualfindingsfor clear error and questions of law de novo. See United States v.

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

The evidence is considered in the light most favorable to the prevailing party. See 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 individualmay be nervousfor many

reasons, and although it might be because the

individual is trafficking drugs, the nervousness

could equally be caused by the fact that the defendant is nervous about 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 that suspicious and inconsistent answers, nervousness, 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 contract “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 even after the initial investigation for

the traffic offense had concluded.4

III.

Grier contends that the district court erred

in denying his motion to supplement 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

initial traffic stop was pretextual. The court

did not abuse its discretion in refusing to

supplement the record for this purpose, because it is well established that an officer may

permissibly 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 suspicion existed for drug trafficking,

including 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 district court’s

finding that reasonable suspicion existed in this

case, we do not consider them, because the government concedes that these questions might have

been asked after the computer 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 clear error in its

determination that these facts were available to

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 answers were given before or after the

permissible length of the initial stop.

5 Cf. United States v. George, 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, 517 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 the reasonableness inquiry under

the Fourth Amendment is an objective one, wholly

divorced from the subjective beliefs of police officers.”)