FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                         September 10, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-4092
                                                   (D.C. No. 2:16-CR-00021-JNP-1)
 TOHEED AHMED,                                                 (D. Utah)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, MURPHY, and EID, Circuit Judges.
                 _________________________________

      Defendant-Appellant Toheed Ahmed appeals the district court’s denial of his

motion to suppress evidence derived from a dog-sniff of his vehicle. He contends

that the police conducted the dog-sniff after the traffic stop had already terminated,

and that therefore they needed reasonable suspicion to prolong the stop to conduct

the dog-sniff. He argues that the police did not have such reasonable suspicion, and

that the district court therefore should have granted his motion to suppress evidence

stemming from the search.




      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district

court’s denial of Ahmed’s suppression motion, finding that the police had reasonable

suspicion to prolong the stop to conduct the dog-sniff.

                                           I.

      At around 2:35 a.m. on August 26, 2015, a police officer observed Ahmed

drive his vehicle along the shoulder of a street before switching lanes and then

pulling into the parking lot of a motel that was known as a high crime location. The

officer entered the parking lot and stopped his patrol car behind Ahmed’s vehicle,

initiating the traffic stop. There were two passengers in Ahmed’s vehicle—a woman

in the front seat and a woman in the back-right seat. When the officer exited his

patrol car and walked toward Ahmed’s vehicle, the backseat passenger opened the

back-right door and began to stand up. The officer told the passenger to remain in

the car. But as the officer continued toward the vehicle, the backseat passenger again

attempted to exit, this time completely getting out of the car. The officer again

instructed her to stay in the car, and she complied.

      When the officer arrived at the driver’s side door, Ahmed—the driver—was

rolling up his window. Ahmed then began talking with the two passengers in the car.

He turned his head, looked at the officer through his window, then resumed his

conversation with the two passengers. The officer drew his firearm after witnessing

Ahmed’s behavior.




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      When Ahmed eventually rolled down his window, the officer observed that

both passengers were unbuckled. The officer also observed the backseat passenger

dousing herself with cologne.

      The officer obtained Ahmed’s driver’s license and proof of insurance. Ahmed

was unable to produce proof of registration because, according to him, he had just

purchased the vehicle days prior and had yet to register it. The officer therefore

requested a bill of sale in lieu of the registration. While Ahmed looked for his bill of

sale, the officer returned to his patrol car and ran a data-check revealing that Ahmed

had no outstanding warrants and that the vehicle was unregistered.

      The officer returned to Ahmed’s vehicle. Upon retrieving the bill of sale, he

walked over to the other side of the car and asked the front passenger for her name.

The front passenger provided a false name, “Amber Solona,” and stated that she had

California identification. After running this name through Utah and California

databases, the officer was unable to find a person with the name of “Amber Solona”

matching the passenger’s description. The officer went back to Ahmed’s vehicle and

placed the front passenger under arrest for providing a false name. He then brought

her back to his patrol car to ascertain her real name and subsequently check to see if

she had any outstanding warrants. It took the officer roughly 90 minutes to learn the

passenger’s real identity.

      While the officer was speaking with the front passenger in his patrol car,

another officer—who had arrived as “back up”—conducted a dog-sniff around

Ahmed’s vehicle at 2:50 a.m. The dog signaled that narcotics were located inside the

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vehicle; and upon a subsequent search, the officers found syringes, drug

paraphernalia, cocaine, and methamphetamine inside the car.

      Ahmed was charged under 21 U.S.C. § 841(a)(1) with possession of narcotics

with an intent to distribute. During the lower court proceeding, Ahmed moved to

suppress the evidence gathered from the dog-sniff. But the district court denied

Ahmed’s motion to suppress, finding that the stop was still ongoing during the dog-

sniff and that even if the stop had terminated beforehand, the police had reasonable

suspicion to prolong the stop for the search. Ahmed eventually pleaded guilty but

conditioned his plea on his ability to appeal the admission of the drugs into evidence.

      He now appeals, arguing that the dog-sniff was unconstitutional for two

reasons. First, he argues that the traffic-stop of Ahmed and his vehicle had

terminated before the dog-sniff occurred, requiring the officers to have reasonable

suspicion in order to prolong the stop and conduct the search. Second, he contends

that because the police lacked reasonable suspicion to prolong the stop, the

subsequent search was unconstitutional, and evidence derived therefrom was

inadmissible.

                                           II.

      We review de novo a lower court’s denial of a motion to suppress. United

States v. Polly, 

, 996 (10th Cir. 2011). In doing so, we view the

evidence in a light most favorable to the government and accept the district court’s

findings of fact unless they are clearly erroneous.

      The district court denied Ahmed’s motion to suppress the narcotics on two

grounds. The first was that the stop had not terminated prior to the dog-sniff. And

the second was that, even if the stop had terminated prior to the dog-sniff, the police

had reasonable suspicion to prolong the stop for the search. Such reasonable

suspicion, the court reasoned, was supported by the following facts: (1) the backseat

passenger twice tried to exit the vehicle, (2) the defendant rolled up his window and

initially ignored the officer at the beginning of the stop, and (3) the backseat

passenger doused herself with cologne. We decline to review the issue of whether

the stop had terminated prior to the dog-sniff because we agree with the district court

that the police ultimately had reasonable suspicion to prolong the stop.

                                           A.

      Police need reasonable suspicion to prolong a traffic-stop to conduct a dog-

sniff. United States v. Pettit, 

, 1379 (10th Cir. 2015). Police have

“reasonable suspicion” if they have a “‘particularized and objective basis for

suspecting’ criminal conduct under a totality of the circumstances.”

v. Cortez, 

, 417–18 (1981)).

      Factors that are typically “consistent with innocent travel” may contribute to

reasonable suspicion depending on the circumstances. United States v. Valles, 

, 680 (10th Cir. 2002) (quoting United States v. Sokolow, 

, 9

(1989)). For example, this court in United States v. Ludwig found that an officer had

reasonable suspicion to conduct a dog-sniff of a vehicle partially because he noticed

an “overpowering smell of cologne when [the driver] rolled down his window.” 641

                                            

, 1248 (10th Cir. 2011). While acknowledging that the use of cologne was

“consistent with lawful activity,” we also noted that it is “commonly used to mask

the odor of drugs.”

v. Ortiz-Ortiz, 

, 895 (10th

Cir. 1995)) (quotations omitted). We have similarly found that a driver’s odd use of

his window can contribute to reasonable suspicion. See United States v. Ludlow, 

, 264 (10th Cir. 1993). In affirming the lower court’s denial of a

suppression motion in Ludlow, this court accepted the lower court’s conclusion that

the defendant’s failure to “roll [his] window all the way down . . . raise[d] suspicion

that there was an odor in the car that the driver did not want out.”

presence in a high-crime area can also contribute to an

officer’s reasonable suspicion. In United States v. McHugh, we found reasonable

suspicion to exist partially because the defendant did “not obey[] the armed security

guard’s commands, and . . . tr[ied] to exit the vehicle despite the guard’s orders to the

contrary.” 

, 1257 (10th Cir. 2011). A defendant’s presence in a high-

crime area can separately contribute to reasonable suspicion. United States v.

McGehee, 

, 868 (10th Cir. 2012) (noting the fact that the officer

“encountered the vehicle . . . in front of a residence known to be associated with

drug-trafficking . . . supported [the officer’s] belief that the occupants were engaged

in criminal conduct”); United States v. Clarkson, 

, 1201 (10th Cir.

2009); Illinois v. Wardlow, 

, 124 (2000) (noting that the location of a

traffic-stop in a “high crime area” is one of the “relevant contextual considerations”

when assessing reasonable suspicion).

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                                           B.

       Several factors here gave the officer reasonable suspicion to prolong the stop

of Ahmed’s vehicle and conduct the dog-sniff. First, the backseat passenger doused

herself with cologne as the driver rolled down his window. As we found in Ludwig,

an occupant’s use of cologne as a potential masking agent can contribute to

reasonable 

. Second, Ahmed’s initial delay in rolling

down the window was suspicious for several reasons. Not only could it have been an

attempt to prevent odor from escaping the car, see 

, but it

also could have appeared as defiant behavior. The backseat passenger similarly

exhibited defiance when she repeatedly tried to exit the car contrary to the officer’s

orders. As this court in McHugh found, such defiant behavior can give rise to

reasonable 

. Separately, the fact that the traffic-stop

occurred in front of a motel known as a high crime location further contributed to the

officer’s reasonable suspicion. See 

; 

.

       The above factors, together under the totality of the circumstances, provided a

“particularized and objective basis” for the officer to suspect criminal activity, and

thus satisfied the reasonable suspicion standard. It is on this ground that we affirm

the district court’s denial of Ahmed’s suppression motion. And because we affirm on

the ground that reasonable suspicion supported the search, we need not consider

whether the stop had terminated prior to the dog-sniff. See United States v. Damato,

, 844 (10th Cir. 2012).

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                                        III.

      For the reasons stated above, we AFFIRM the district court’s denial of

Ahmed’s motion to suppress.


                                          Entered for the Court


                                          Allison H. Eid
                                          Circuit Judge




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