PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            ___________

                No. 19-1038
                ___________

      UNITED STATES OF AMERICA

                      v.

              TYKEI GARNER,
                       Appellant
                ___________

On Appeal from the United States District Court
    for the Middle District of Pennsylvania
         (D.C. No. 1-16-cr-00341-002)
  District Judge: Honorable John E. Jones III
                 ___________

                No. 19-1326
                ___________

      UNITED STATES OF AMERICA

                      v.

               JERRY FRUIT,
                    Appellant
                ___________
      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
               (D.C. No. 1-16-cr-00341-001)
        District Judge: Honorable John E. Jones III
                       ___________

               Argued January 14, 2020
   Before: HARDIMAN, PORTER, and PHIPPS, Circuit
                       Judges.

               (Opinion Filed: May 29, 2020)


John F. Yaninek [Argued]
Thomas Thomas & Hafer
305 North Front Street
6th Floor
Harrisburg, PA 17101
       Attorney for Appellant Tykei Garner

Keith M. Donoghue [Argued]
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
       Attorney for Appellant Jerry Fruit




                             2
David J. Freed
Scott R. Ford [Argued]
Office of United States Attorney
Middle District of Pennsylvania
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
       Attorney for Appellee United States of America

                        ____________

                 OPINION OF THE COURT
                      ____________

HARDIMAN, Circuit Judge.


        These consolidated appeals require us to determine
whether a Pennsylvania state trooper unlawfully prolonged a
traffic stop. Appellants Jerry Fruit and Tykei Garner challenge
the District Court’s denial of their joint motion to suppress
evidence, claiming the traffic stop violated their Fourth
Amendment right to be free from unreasonable seizures.
Garner also claims the District Court erred when it allowed the
Government to use his prior drug conviction as Rule 404(b)
evidence. Finally, Garner contends the evidence was
insufficient to convict him of a conspiracy to distribute heroin
and cocaine. We will affirm.

                               I

      On July 5, 2016, Pennsylvania State Trooper Kent
Ramirez stopped a car with a New York license plate for
speeding on Interstate 81 near Harrisburg, Pennsylvania. Prior



                               3
to the stop, Trooper Ramirez ran the license plate and learned
the car was owned by Enterprise Rent-A-Car, though it lacked
the typical bar code rental stickers.

       The entire traffic stop was recorded on Trooper
Ramirez’s dashcam. When Ramirez approached the passenger
side of the vehicle, he smelled a strong odor of air freshener
and noticed that each vent had an air freshener clipped to it.
Ramirez identified himself, asked for the driver’s license, and
explained that the driver was going 75 miles per hour in an area
with a posted speed limit of 55. Because traffic was noisy,
Ramirez asked the driver to exit the vehicle so they could talk
on the side of the road.

       The driver identified himself as Jerry Fruit and gave
Ramirez his driver’s license and rental car agreement. In
response to an inquiry from Ramirez, Fruit said he was
traveling from Manhattan to Hagerstown, Maryland to visit his
cousin for about two days. He also identified his passenger,
Tykei Garner, as his cousin. The rental agreement listed Fruit
as the authorized driver of the vehicle, but limited to the state
of New York. And the agreement stated that it covered a rental
period of June 11–15, so it appeared to have expired twenty
days before the traffic stop.

asked about that
discrepancy, Fruit explained that he was in a car accident, his
car had been in the shop for a month, and the rental agreement
was through his insurance company.

       Before he returned to his cruiser to run Fruit’s license
and contact Enterprise about the status of Fruit’s rental
contract, Trooper Ramirez asked Fruit a series of questions
about his employment, prior traffic tickets, and criminal
history. Fruit asked Ramirez what these questions had to do
with his speeding violation, and Ramirez responded that the



                               4
questions were “part of [his] traffic stop, okay?” App. III,
Traffic Stop Video at 7:26–7:28.

        About six minutes after he stopped the car, Trooper
Ramirez asked the passenger (Garner) to get out of the car so
he could question him. Garner responded that Fruit was
dropping him off in Greencastle, Pennsylvania to visit his
girlfriend, but said he would return to New York the next day
to attend a court hearing.1 He also admitted he had a suspended
license for failure to pay child support. When Ramirez
continued to ask him about his criminal history, Garner added
that he had been arrested for fighting. Garner also clarified that
Fruit was not his biological relative, though he considered him
family. As with Fruit, Ramirez asked Garner questions
unrelated to the traffic stop, including about his criminal
history.

       Twelve minutes into the traffic stop, Trooper Ramirez
returned to his vehicle to check with Enterprise on the status of
the rental agreement and to verify Fruit’s and Garner’s driving
records and criminal histories. Ramirez later explained at the
suppression hearing that he had to input their information into
his computer manually, which could take between twelve to
fifteen minutes for two people. Ramirez learned from the
computer search that neither Fruit nor Garner had any
outstanding warrants, although Fruit was on supervised release

       1
         The District Court found that Garner said they would
be returning for court the next day while Fruit said he was
going to Maryland for about two days. That finding is clearly
erroneous. When Ramirez asked Garner if they were coming
back together, Garner said: “Actually, I have to go to court” for
“child support. . . . Headed back tomorrow, hopefully.” Traffic
Stop Video at 9:37–9:46 (emphasis added).



                                5
for a federal crime. He also learned that both men had extensive
criminal records, including drug and weapons crimes. Ramirez
then called the Pennsylvania Criminal Intelligence Center,
which reported that both men had been subjects of high
intensity drug trafficking area investigations. Finally,
Enterprise confirmed that Fruit had extended the rental
agreement beyond the listed expiration date.

        After learning all these things, Trooper Ramirez
resolved to ask permission to search the vehicle but waited for
backup before doing so. The backup officer, Trooper Severin
Thierwechter, arrived 37 minutes into the stop, at about 9:29
pm. Trooper Ramirez then asked Fruit if he could search the
car, but Fruit declined. Ramirez responded that he had “enough
to believe that there may be criminal activity going on.” Traffic
Stop Video at 37:55–37:59. Ramirez then advised Fruit that he
was calling for a K-9 unit and Fruit was not free to leave. At
9:31 p.m., Ramirez called for a K-9 unit, and Trooper John
Mearkle arrived with dog Zigi 17 minutes later—56 minutes
into the stop. Ramirez told Mearkle that he suspected criminal
conduct because Fruit and Garner gave “conflicting stories,”
had “long criminal histories,” and were “very nervous.” Traffic
Stop Video at 58:33–58:45. When Mearkle brought Zigi to the
car, Zigi alerted twice at the passenger side door. Zigi then
entered the vehicle and alerted in the back seat and trunk. The
troopers searched the car themselves and found bags
containing 300 grams of cocaine and 261 grams of heroin in
the trunk. So they arrested Fruit and Garner.

        Fruit and Garner were indicted for conspiracy to possess
with intent to distribute heroin and cocaine and possession with
intent to distribute heroin and cocaine. They moved to suppress
the evidence seized during the traffic stop, arguing that they
were seized in violation of their Fourth Amendment rights



                               6
because Trooper Ramirez extended the traffic stop longer than
was necessary to issue the speeding ticket and lacked
reasonable suspicion to engage in the ensuing criminal
investigation. The District Court denied their motion, ruling
that Trooper Ramirez had “an escalating degree of reasonable
suspicion” that justified extending the stop. Fruit App. 26.

       In 2018, Fruit pleaded guilty to both counts under a plea
agreement preserving his right to appeal the denial of his
motion to suppress. Garner was convicted of both counts by a
jury. Garner moved for judgment of acquittal and a new trial,
which the District Court denied. The Court sentenced Fruit and
Garner each to the mandatory minimum of 120 months’
imprisonment with both counts to run concurrently. They
appealed and we consolidated their cases for argument and
disposition.

                               II

       The District Court had jurisdiction under 18 U.S.C. §
3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a). We review the District Court’s factual
findings in support of its order denying the motion to suppress
for clear error and its legal determinations de novo. United
States v. Lewis, 

, 236-37 (3d Cir. 2012). Because
the District Court denied the suppression motion, we view the
facts in the light most favorable to the Government. United
States v. Myers, 

, 255 (3d Cir. 2002).

                              III

       We begin by addressing Fruit and Garner’s argument
that the District Court erred when it denied their motion to
suppress evidence. Trooper Ramirez paced Fruit driving 75




                               7
miles per hour in a 55 mile per hour zone, so there is no dispute
that the initial traffic stop was lawful. The question here is
whether it became unlawful because it was “prolonged beyond
the time reasonably required to complete th[e] mission.”
Illinois v. Caballes, 

, 407 (2005).

        The Supreme Court has stated that the Fourth
Amendment allows an officer to conduct unrelated
investigations that do not lengthen a roadside detention.
Arizona v. Johnson, 

, 333 (2009). But if these
investigations “measurably extend the duration of the stop,”
the seizure becomes unlawful unless otherwise supported by
reasonable suspicion or probable cause.

(internal
citation omitted). The lawful seizure “ends when tasks tied to
the traffic infraction are—or reasonably should have been—
completed.” Rodriguez v. United States, 

, 354
(2015) (citing United States v. Sharpe, 

, 686
(1985)).

        Rodriguez is the precedent most relevant to this appeal.
There, K-9 officer Morgan Struble stopped Rodriguez for
driving 

. After Struble checked
Rodriguez’s license, registration, and proof of insurance, he
returned to the car, asked for the passenger’s license, and
questioned the occupants about their travel plans.

the passenger’s license, found no outstanding warrants or
other problems, and called for backup. He returned the
documents to Rodriguez and the passenger and completed the
traffic stop by issuing Rodriguez a written warning. But instead
of sending Rodriguez on his way, Struble asked permission to
walk his dog around the vehicle.

When Rodriguez
refused, Struble ordered the occupants to exit the vehicle while
he waited for backup. After the second officer arrived, Struble
then searched the car and the dog alerted to the presence of



                               8
drugs some seven or eight minutes after he issued the written
warning to Rodriguez.

Court held that an officer may not extend
the stop to conduct a dog sniff unless there is reasonable
suspicion of criminal activity beyond the traffic violation.

It observed that an officer’s mission when making
a traffic stop includes determining “whether to issue a traffic
ticket” and making “‘ordinary inquiries incident to the traffic
stop.’”

(quoting 

). A dog
sniff aimed at “detecting evidence of ordinary criminal
wrongdoing” unrelated to the stop “is not fairly characterized
as part of the officer’s traffic mission.”

–56 (internal
citation, quotation marks, and alteration omitted).

                                A

       This Court has issued two opinions in the wake of
Rodriguez: United States v. Clark, 

(3d Cir. 2018),
and United States v. Green, 

(3d Cir. 2018). In
Clark, we held a lawful traffic stop was unlawfully extended
when an officer began unreasonably questioning a driver about
his criminal history after tasks tied to the mission of the traffic
stop “reasonably should have been[] 

(internal citation omitted). Although the officer questioned
the driver for just 20 seconds, we noted that the brevity of the
questioning did not bear on whether the questions were off-
mission.

n.4.

      In Green, we recognized the difficulty in pinpointing
the moment when tasks tied to the traffic stop are completed or
reasonably should have been completed (what we called the
“Rodriguez moment”). We also recognized the possibility that
the Rodriguez moment occurs when an officer no longer




                                9
pursues the tasks tied to the traffic stop even though he
reasonably could have continued with those 

(citing 

) (explaining that an
officer waiting for backup due to danger inherent in traffic
stops ordinarily does not measurably prolong the traffic stop
but complexity is added to the analysis when the officer calls
for backup and then does not wait for backup to arrive). Thus,
we determined in Green that the Rodriguez moment occurred
no later than when the officer issued the traffic citation, but
“instructed Green to wait in his car 

. We also determined that the Rodriguez moment occurred
at the earliest when the officer pursued an off-mission task by
making a phone call related to drug trafficking and was “no
longer concerned with the moving violation.”

Even
assuming the earlier Rodriguez moment in Green, we still held
the seizure was constitutional because the officer already had
reasonable suspicion at that point.

tasks ordinarily are tied to the mission of a
traffic stop? They include: “checking the driver’s license,
determining whether there are outstanding warrants against the
driver, and inspecting the automobile’s registration and proof
of insurance.” 

(internal citation
omitted). We have also held that some questions relating to a
driver’s travel plans ordinarily fall within the scope of the
traffic stop, as do delays caused by safety concerns related to
the stop. United States v. Givan, 

, 459 (3d Cir.
2003); 

.

        To lawfully extend a stop beyond when tasks tied to its
initial mission are completed or reasonably should have been
completed, an officer must have an objectively reasonable and
articulable suspicion that illegal activity had occurred or was
occurring. 

; 

.



                              10
In determining whether the officer had reasonable suspicion,
we consider “the totality of the circumstances—the whole
picture.” United States v. Cortez, 

, 417 (1981).
This standard requires “considerably less than proof of
wrongdoing by a preponderance of the evidence,” United
States v. Sokolow, 

, 7 (1989), but requires more than
a “hunch.” Terry v. Ohio, 

, 27 (1968). Reasonable
suspicion depends on both the “information possessed by
police and its degree of reliability.” Alabama v. White, 

, 330 (1990).

                                B

       The District Court denied the motion to suppress in
2017, before we decided Green and Clark, so it did not
determine when the “Rodriguez moment” occurred. Instead, it
found that Trooper Ramirez’s observations throughout the
traffic stop created an “amalgam of information . . . that
triggered [his] suspicion that a crime was afoot beyond a
moving violation.” App. 25.

       Our review of the video and audio record leads us to
conclude that the earliest the Rodriguez moment occurred was
when Trooper Ramirez began asking Fruit about his
employment, family, criminal history, and other conduct
unrelated to the traffic stop. After informing Fruit that he was
speeding, Ramirez collected Fruit’s driver’s license and rental
agreement. He noted the rental agreement had expired, but
Fruit assured him he had extended the rental term. Before he
returned to his cruiser to investigate the status of Fruit’s rental
agreement, Ramirez questioned Fruit for five minutes about his
criminal history. This questioning was not tied to the traffic
stop’s mission—the speeding violation—because it was
“aimed at detecting criminal activity more generally.” Green,



                                

. But if Trooper Ramirez had reasonable
suspicion when he began questioning Fruit about his criminal
history, even if such questioning at that moment measurably
extended the traffic stop, there is no Fourth Amendment
violation.

        We hold Trooper Ramirez had reasonable suspicion to
extend the stop based on information he obtained during the
first few minutes of the traffic stop and before he engaged in
any unrelated investigation. So no unlawful extension of the
traffic stop ever occurred. When Ramirez first spotted the car,
he noticed it had a New York license plate and appeared to be
a rental car. After learning the vehicle belonged to Enterprise,
he noticed it did not have the typical bar code stickers on the
driver’s window or the rear windshield. These observations
aroused his suspicion because, in Ramirez’s experience, rental
vehicles usually had these stickers unless someone peeled them
off in violation of a rental agreement.

       As Trooper Ramirez approached the vehicle, he smelled
a strong odor of air freshener and saw air fresheners clipped on
every vent, which was abnormal in his experience. Ramirez’s
questions related to the traffic stop revealed that Fruit was
traveling along I-81 between New York City and Hagerstown,
which Ramirez knew to be a drug trafficking corridor. Ramirez
also saw that the rental agreement had expired two weeks
earlier and Fruit seemed extremely nervous throughout the
stop. In their totality, these factors are sufficient to show that
Trooper Ramirez’s suspicion of illegal activity was objectively
reasonable. So he could extend the traffic stop and Fruit and
Garner were not seized in violation of the Fourth Amendment.




                               12
                              IV

       Fruit also argues that Trooper Ramirez exercised a lack
of diligence in his stop, rendering it tantamount to an arrest
requiring probable cause. Fruit contends that Ramirez should
not have waited for another trooper to arrive before seeking
consent or calling for a K-9 unit. Instead, Fruit claims Ramirez
should have called the K-9 unit before he asked Fruit for
permission to search the vehicle. We are unpersuaded.

        Fruit correctly notes that a stop must be “sufficiently
limited in scope and duration to satisfy the conditions of an
investigative seizure.” Florida v. Royer, 

, 500
(1983) (plurality opinion). But Trooper Ramirez had
reasonable suspicion to justify further investigation before he
even questioned Fruit. And Ramirez explained he called for
backup before asking to search the vehicle because it was
starting to get dark, Fruit had a previous firearms offense, and
he is smaller than Fruit and Garner. He called for backup for
officer safety, which is consistent with the mission of any
traffic stop. See 

. As the Supreme Court
has instructed, “[t]raffic stops are ‘especially fraught with
danger to police officers,’ . . . so an officer may need to take
certain negligibly burdensome precautions in order to complete
his mission safely.” 

(internal
citations omitted).

       In the 25 minutes between Trooper Ramirez’s return to
his vehicle and Trooper Thierwechter’s arrival, Ramirez not
only ran Fruit and Garner’s records—which he said could take
15 minutes or more since the two lived out of state—but also
made the phone calls to Enterprise and the Pennsylvania
Criminal Intelligence Center. Ramirez called for backup only
after running Fruit and Garner’s records and making those



                              13
calls. Thierwechter arrived within ten or fifteen minutes, so this
brief delay burdened Fruit only negligibly.

       Fruit also argues that Trooper Ramirez should have
called for the K-9 unit before asking for consent to search. But
this argument fails because we have observed no lack of
diligence by officers in waiting to call for K-9 units until after
the suspect has denied consent. See United States v. Frost, 

, 742 (3d Cir. 1993). Trooper Ramirez thus acted
diligently and needed only reasonable suspicion to conduct the
dog sniff, which he had. See 

–80.

                                V

        In addition to adopting Fruit’s unsuccessful arguments,
Garner raises two additional issues particular to his appeal. The
first involves the admission of evidence and the second relates
to his motion for judgment of acquittal. We consider each in
turn.

                                A

        At trial, the Government sought to introduce evidence
of Garner’s 2005 conviction for possession of cocaine, his
2007 conviction for sale of cocaine, and a pending charge from
2016 for possession with intent to distribute marijuana. The
District Court admitted Garner’s 2007 New York City cocaine
trafficking conviction as evidence of knowledge of the cocaine
in the car and his intent to distribute it. But it did not admit
Garner’s drug possession charges from 2005 and 2016,
because they were not relevant to this distribution charge.

      Garner urges us to overturn our precedent that a
conviction makes “the defendant’s knowledge of the presence




                               14
of heroin more probable than it would have been without the
evidence as it indicates that he had knowledge of [the drug
trade], thus making it less likely that he was in the wrong place
at the wrong time.” Garner Br. at 20–21 (citing 

(admitting a previous cocaine conviction to prove
knowledge and intent to distribute heroin)). This is a nonstarter
because only the Court sitting en banc can overturn a prior
precedent. Joyce v. Maersk Line Ltd., 

, 508 (3d
Cir. 2017).

       Garner also argues the District Court’s admission of his
2007 drug trafficking conviction was error under Rules 403
and 404(b) of the Federal Rules of Evidence. We review this
decision for abuse of discretion. United States v. Butch, 

, 175 (3d Cir. 2001).

       Rule 404(b) provides “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in
accordance with the character.” But that evidence “may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” FED. R. EVID.
404(b)(1)–(2).

        According to Garner, his 2007 drug trafficking
conviction dealt with different facts than those present in this
appeal and occurred too long ago to be admissible. He notes
that his first conviction involved distributing cocaine on a
street corner while this case involves distributing cocaine and
heroin in a car. He also argues that a cocaine conviction does
not prove that he knew what heroin looks like or how it is sold.
He also contends the District Court failed under Federal Rule




                               15
of Evidence 403 to properly balance the probative value of the
evidence against its prejudicial effect.

        We apply a four-part test to determine whether prior-
acts evidence is admissible under Rule 404(b). United States v.
Davis, 

, 441 (3d Cir. 2013); see also Huddleston
v. United States, 

, 691–92 (1988) (discussing the
four sources protecting against undue prejudice of admitting
Rule 404(b) evidence). Such evidence is admissible if it is: (1)
offered for a non-propensity purpose; (2) relevant to that
identified purpose; (3) sufficiently probative under Rule 403 so
its probative value is not outweighed by any inherent danger of
unfair prejudice; and (4) “accompanied by a limiting
instruction, if requested.” 

.

       Garner’s 2007 conviction showed that he had personal
knowledge about how to identify cocaine, how to traffic it, and
how to package, price, and purchase it in New York. If Garner
had that knowledge, he could purchase and package drugs in
New York, before transporting them to Hagerstown for sale.
So his prior conviction showed that Garner had the intent and
knowledge to sell packaged cocaine in his possession.

       After finding the 2007 cocaine distribution charge
relevant, the District Court then balanced its probative value
with its prejudicial impact. The Court determined that the
conviction’s probative value outweighed the danger of unfair
prejudice because intent and knowledge are critical to proving
a conspiracy. Finally, the Court agreed that it would issue a
limiting instruction when requested. As a result, the Court
admitted the 2007 conviction into evidence.

      The Court admitted the 2007 cocaine trafficking
conviction to prove knowledge of cocaine and how to sell it,




                              16
not to prove intent and knowledge of packaging heroin.
Because the Court admitted the evidence only to prove cocaine
distribution, the difference between the charges on which
Garner was being tried and his prior conviction would be that
one took place in a car and the other took place on a street
corner. This difference would not affect Garner’s knowledge
of how to identify, package, and sell cocaine. So Garner’s
argument about the cases’ dissimilarity fails. The District
Court correctly applied Huddleston and did not abuse its
discretion in admitting Garner’s cocaine distribution
conviction with a limiting instruction.

                               B

       Finally, Garner claims the District Court erred when it
denied his Rule 29 motion for judgment of acquittal. He notes
that “[t]here was no evidence presented at trial that [he and
Fruit] ever had any communications regarding distribution of
heroin or cocaine.” Garner Br. 30. That’s true, but immaterial.
Here, the Government relied on circumstantial evidence to
prove its case. See, e.g., United States v. Fullmer, 

, 160 (3d Cir. 2009); United States v. McKee, 

,
238 (3d Cir. 2007). Viewing the record, as we must, in the light
most favorable to the prosecution, United States v. Smith, 

, 476 (3d Cir. 2002), ample evidence supported
Garner’s conspiracy conviction.

        That evidence included that: (1) Fruit and Garner were
travelling together from New York City (a known drug hub) to
Hagerstown (a known drug destination); (2) the rental bar code
had been removed from the vehicle; (3) air fresheners were
attached to each air vent; and (4) Trooper Ramirez pulled the
car over just before 9:00 p.m., with an hour left to reach
Greencastle, yet Garner said he planned to travel the next day



                              17
the four hours back to New York for a court hearing. The
Government also elicited testimony that, despite statements by
Garner to Trooper Ramirez regarding a court hearing involving
child support, there was no record of any such hearing
scheduled in the state of New York involving Garner. Evidence
at trial also revealed that Garner minimized his criminal history
when he told Trooper Ramirez that he had been arrested for
fighting while neglecting to mention his extensive history of
drug possession and trafficking. A rational trier of fact could
find that Garner lied about his drug history because he knew
the car contained narcotics. Finally, the two defendants
traveled with cocaine and heroin worth over $20,000 in their
car and Garner knew about the cocaine trade.

       Viewing this evidence as a whole, a rational juror could
conclude that Garner agreed with Fruit to possess and
distribute the heroin and cocaine in the vehicle. So the District
Court did not err in denying the Rule 29 motion.

                        *      *       *

        The District Court did not err when it denied Fruit and
Garner’s joint motion to suppress the evidence of drug
trafficking seized during the traffic stop. Nor did the Court err
when it allowed the Government to use Garner’s 2007 drug
conviction as Rule 404(b) evidence or when it found that the
Government adduced sufficient evidence to convict Garner of
conspiring with Fruit to distribute heroin and cocaine. We will
therefore affirm the judgments of conviction and sentences.




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