Facts
At the hearing on the motion to suppress, the parties presented the testimony of Patrol Officer Travis Burkholder, an offense report prepared by Narcotics Detective Matthew Sedillo, both of the Midland Police Department (MPD), and Burkholder’s dashcam and bodycam footage. Burkholder had been a police officer for roughly a year and-a-half at the time of the suppression hearing and had conducted roughly over 150 traffic stops. Prior to the night of the stop, a cooperating source had informed MPD that Raul Gonzalez was selling large quantities of methamphetamine from his home at 2719 Roosevelt Avenue. Further, multiple sources had informed MPD that Gonzalez’s supplier was a woman named “Nikky” who drove a silver Yukon or Tahoe and trafficked large quantities of methamphetamine to Midland from New Mexico.
On the night of the stop, May 26, 2023, MPD participated in a joint task force operation with county, state, and federal authorities. Working with officers surveilling the house at 2719 Roosevelt Avenue, Burkholder and Sedillo were to receive alerts about vehicles, locate those vehicles, and then identify traffic violations to conduct traffic stops of those vehicles. According to the offense report, surveillance officers observed a vehicle pull up to 2719 Roosevelt followed two minutes later by a silver Yukon; shortly thereafter, a man got into the passenger seat of the Yukon, and it pulled away. Burkholder testified that soon after receiving a radio alert that the Yukon was leaving the house, he and Sedillo found it sitting at a red light and prepared to pull it over for a traffic infraction (officers in an unmarked vehicle were directly behind the Yukon at the red light and relayed to Burkholder that they had observed the Yukon fail to make a proper stop at the light).
When the light turned green, they pulled up behind the Yukon and activated overhead emergency lights. Burkholder testified that the Yukon braked, then sped up, and changed lanes before stopping in a parking lot 31 seconds later. Burkholder approached the Yukon and told Nikky Lujan, who was in the driver’s seat, to exit the vehicle. Burkholder testified that Lujan seemed nervous and initially did not want to exit the vehicle, and based on his training and experience, such conduct indicated that a person has contraband. When Lujan exited the vehicle, Burkholder explained that he pulled her over for failure to stop before the designated stopping area at the red light. Lujan provided identifying information, and she and the passenger, who identified himself as Raul Gonzalez, both told Burkholder that they were coming from Lujan’s house on Delano Avenue and were going to Odessa to pick up Lujan’s RV that had broken down. Burkholder described Lujan as exhibiting nervous behavior, such as fidgeting and speaking erratically while waiting outside of the vehicle.
Around five minutes into the stop, Burkholder requested a K-9 unit. Around six minutes and 15 seconds into the stop, Burkholder completed running background checks on Lujan and Gonzalez. The K-9 arrived about 13 minutes and 15 seconds into the stop and alerted to the presence of narcotics. A subsequent search revealed methamphetamine under the hood and cash in the glove compartment. Officers then executed search warrants at Lujan’s Delano residence and Gonzalez’s Roosevelt residence, which uncovered cash, weapons, and drugs. A grand jury charged Lujan with conspiracy to possess with intent to distribute 50 grams or more of actual methamphetamine and possession with intent to distribute the same.
Lujan moved to suppress the evidence, arguing the officers abandoned the mission of the traffic stop and lacked reasonable suspicion to extend the stop to wait for a K-9 unit. The district court denied the motion to suppress concluding: (1) that prolonging the stop for around 10 minutes to wait for the arrival of a K-9 unit was per se reasonable, and (2) alternatively, that even if the 10-minute delay was unreasonable, officers had developed reasonable suspicion of additional criminal activity to prolong the detention. Pursuant to a plea agreement, Lujan reserved the right to appeal the ruling on her motion to suppress and entered a conditional guilty plea. She was sentenced to concurrent 340-month terms of imprisonment and concurrent five-year terms of supervised release. She timely filed a notice of appeal. The 5th affirmed.
Analysis
A traffic stop becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation. See SCOTUS Rodriguez v. United States, 575 U.S. 348 (2015). And a dog sniff is not part of the mission of a traffic stop. However, if the officer develops reasonable suspicion of additional criminal activity in the course of the stop and before the initial purpose of the stop has been fulfilled, then the detention may continue until the new reasonable suspicion has been dispelled or confirmed.
The district court erred by ruling that, after completing the mission of the traffic stop, prolonging the stop for around 10 minutes was per se reasonable. Thus, we look to whether there was reasonable suspicion of additional criminal activity to prolong the detention. The parties agree that the traffic stop’s mission was complete when background checks were returned around six minutes and 15 seconds into the stop; they disagree as to whether at that point the officers had reasonable suspicion to prolong the stop until the K-9 unit arrived seven minutes later.
The district court’s order cited the following as supporting reasonable suspicion: Lujan (1) kept driving for nearly 1,000 feet after police lights were activated, (2) admitted she had been previously incarcerated for methamphetamine possession, and (3) lied about where she was coming from by omitting that she stopped at a house that police were surveilling for drug trafficking. On appeal, the government points to three additional factors, not explicitly cited by the district court, as supporting reasonable suspicion: Lujan’s (4) nervousness (5) hesitancy to leave the vehicle, and (6) implausible itinerary.
A. Continued driving and acceleration
Because the video contradicts the testimony regarding whether Lujan could have stopped sooner and at most, Lujan continued for 31 seconds before stopping, this “delay” alone does not meaningfully contribute to reasonable suspicion.
While the video does not obviously depict Lujan accelerating, it provides no indication of speed whatsoever, and therefore is ambiguous on the issue, meaning we must credit Burkholder’s testimony. Although this brief acceleration may not be especially probative of criminal activity, it can still contribute to reasonable suspicion.
B. Prior Imprisonment
The district court also relied on Lujan’s admission to Burkholder— that she had previously been imprisoned for possessing methamphetamine— as supporting reasonable suspicion. Prior arrest, conviction, or imprisonment can support reasonable suspicion when coupled with other suspicious facts.
C. Statements About Trip Origin
The district court found that Lujan contradicted surveillance and lied about where she and the passenger were coming from—a house which testimony revealed was once known for selling narcotics.
Here, Burkholder asked Lujan where she was coming from, and she replied from her house on Delano. Burkholder believed the statement false based on information that he received from other officers who had observed Lujan’s Yukon leaving 2719 Roosevelt. Burkholder knew that Lujan was not coming directly from her house. However, as Burkholder admitted, it was possible for Lujan to have innocently omitted a brief stop to pick up a passenger. While Lujan’s story was a potentially reconcilable inconsistency, it was also reasonable for Burkholder to view the answers as suspicious, even if not convincing proof that she was lying.
D. Nervousness
After exiting the vehicle, Burkholder testified that Lujan seemed to speak erratically, fast, and seemed fidgety at points. Burkholder’s assessment was neither relied on by the district court, nor is it readily apparent in any of the videos. Regardless, even accepting Burkholder’s description, at no point did Lujan’s behavior rise to the level of nervousness this court has generally observed as contributing to reasonable suspicion. See Fishel (extremely nervous with a tremor in his voice); Pack (breathing heavily, his hands were shaking, and his carotid artery was visibly pulsing); Pena-Gonzalez (carotid artery visibly pulsed, his faced twitched, and his breathing was labored).
Therefore, the non-descriptive, general statement that Lujan was nervous is not sufficiently persuasive to create reasonable suspicion.
E. Hesitancy to Leave Vehicle
As he approached Lujan’s window, Burkholder immediately told her to step out of the vehicle. Lujan softly asked why, sounding confused. Burkholder repeated for her to step out of the vehicle, and then opened the driver’s door. Lujan again asked why, and when Burkholder responded, “because I’m asking you to step out of the vehicle,” Lujan stated that there must be a reason. Burkholder replied he would take Lujan to jail for interference if she did not get out of the car, and she began to comply about 10 seconds after the initial request.
In cases where the court has found refusal to exit a vehicle suspicious, the occupant has generally been significantly slower to comply. See Cortez (noting it took almost fifteen minutes—to the point where the officers were considering breaking the window—for defendant to comply with the officers’ instructions”); Reyes (noting driver’s persistent reluctance and extreme hesitation to leave vehicle). In a case where a driver complied only after a full minute had passed since the officer’s second request, the arrival of an additional officer, and being threatened with jail, this court still found that non-compliance added little to reasonable suspicion. See Spears.
Indeed, it is hard to imagine Lujan could have exited the vehicle significantly faster without doing so unprompted—which itself would have increased reasonable suspicion.
F. Implausible Story
The government argues that Lujan provided an implausible story that she was picking up her RV on the side of the road in a town 30 minutes away. Burkholder never explained why he believed the time of day made the story implausible, but merely that it “just seemed funny that anybody would want to leave their residence and go pick up a trailer at 11:30.” But Lujan explained to Burkholder: friends were supposed to deliver the RV to her house, but instead abandoned it, and she was worried it would be stolen.
Stories this court has found implausible often involve traveling a significant time or distance for a relatively minor purpose or short stay. See Reyes (three hour trip to pick up friend’s children to take them to school); Smith (driver traveling with two other adult men from Texas to Indiana to pick up a small icemaker that could be shipped and would not require three people to pick up); Gonzalez (traveling from California to Alabama for family reunion, despite no family being from Alabama, and not knowing where in state reunion would be held).
In contrast to these precedents, traveling 30 minutes at night to pick up an RV qualifies as among those travel plans whose implausibility is merely trivial or illusory and thus do not suffice to justify an extended detention.
G. Totality of the Circumstances
After analyzing each factor individually, we are left with the following: brief, minimal acceleration after initially braking when police activated their emergency lights; prior imprisonment; a statement omitting a stop at a house officers knew to be under surveillance for drug trafficking; a travel itinerary that “seemed funny”; non descript nervousness; and brief hesitation to leave the vehicle.
This case presents a close call. Burkholder knew Lujan had prior drug convictions, had just left a house under surveillance for drug dealing, and had omitted that stop when asked where she was coming from. While her brief acceleration, “funny” itinerary, generalized nervousness, and brief hesitation may add little, all the factors taken together tip the scales in favor of upholding the district court’s ruling on the motion to suppress because there is a reasonable view of the evidence to support it.
https://www.ca5.uscourts.gov/opinions/unpub/24/24-50030.0.pdf