F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          DEC 29 2004
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellant,

          v.                                            No. 04-2077
                                                (D. Ct. No. CR-03-1218-BB)
 MICHAEL STEWART-                                       (D. N. Mex.)
 POPPELSDORF,

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, HENRY, Circuit Judge, and WHITE, †
District Judge.


      Defendant-Appellee Michael Stewart-Poppelsdorf was indicted for (1)

possession with intent to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B)(viii); (2) being a felon in possession of a firearm, 18 U.S.C.

§§ 922(g)(1); (3) carrying a firearm in relation to a drug trafficking crime, 18

U.S.C. § 924(c)(1)(A); and (4) conspiracy to distribute methamphetamine, 21

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      †
        Honorable Ronald A. White, District Judge, United States District Court
for the Eastern District of Oklahoma, sitting by designation.
U.S.C. § 846. He moved to suppress evidence obtained when a police officer

searched the vehicle in which he was a passenger following a routine traffic stop.

After an evidentiary hearing, the District Court granted the motion. The

Government challenges this ruling on appeal. We exercise jurisdiction pursuant

to 18 U.S.C. § 3731 and AFFIRM.

                               I. BACKGROUND

      At 6:45 a.m. on June 1, 2003, Officer Arcenio Chavez stopped a 2003

Chrysler Sebring traveling east on Interstate 40 near Gallup, New Mexico

because neither the driver nor the passenger appeared to be wearing seatbelts.

The ensuing events were videotaped by a recorder mounted in Officer Chavez’s

patrol car. Officer Chavez approached the Chrysler and asked Vanessa Garcia,

the driver, to produce her license, registration, and proof of insurance. Ms.

Garcia produced her license and a rental contract that indicated she was the

authorized driver. Pursuant to local custom, Officer Chavez asked Ms. Garcia to

accompany him to the patrol car while he wrote the ticket for the seatbelt

violation.

      While writing the ticket, Officer Chavez asked Ms. Garcia where she had

come from and where she was going. She replied that she came from Bluewater,

New Mexico, and was headed to Albuquerque. Bluewater, however, was 32

miles ahead of the place they were stopped, not behind them. He then asked her


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who her passenger was. She initially could not remember his name because, she

said, she had just met him the day before. Later she recalled that his name was

“Mike.” Officer Chavez continued questioning Ms. Garcia about her relationship

with Mr. Poppelsdorf, focusing upon the fact that she had spent the night with

him even though she had only known him for a day. Officer Chavez testified that

Ms. Garcia was the most nervous driver he had ever seen and that unlike most

drivers, her nervousness increased over the course of the traffic stop.

      Officer Chavez then returned to the Chrysler to check its VIN. While

doing so, he spoke with Mr. Poppelsdorf who was still sitting in the passenger

seat. Contrary to Ms. Garcia’s statements, Mr. Poppelsdorf said that they were

coming from Arizona, not Bluewater, and that he had known Ms. Garcia for two

years. Officer Chavez testified that Mr. Poppelsdorf appeared to be even more

nervous than Ms. Garcia, whereas in the usual traffic stop, the driver is more

nervous than the passenger.

      After returning Ms. Garcia’s documents and issuing her the citation,

Officer Chavez continued to detain her and Mr. Poppelsdorf. Officer Chavez

returned to the Chrysler to ask Mr. Poppelsdorf more questions concerning the

pair’s travels, their relationship, and whether they were carrying any contraband

in the car. He also asked for consent to search the car, which both Ms. Garcia

and Mr. Poppelsdorf refused to give. Officer Chavez then called a second patrol


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unit to bring a narcotics-sniffing dog, which, upon arrival, alerted to the presence

of drugs in the vehicle. Based on these facts, a warrant was issued to search the

car, whereupon the officers found methamphetamine, drug paraphernalia, and a

loaded .357 Colt revolver. Mr. Poppelsdorf admitted to the police that these

were his items.

      After the grand jury returned the indictment, Mr. Poppelsdorf moved to

suppress the evidence seized from the Chrysler arguing that his Fourth

Amendment right to be free from unreasonable searches and seizures was

violated. The District Court granted the motion, holding that once Officer

Chavez issued the citation he did not have a reasonable suspicion of criminal

wrongdoing to support the prolonged detention. The Government filed a motion

for reconsideration, which the District Court denied. This appeal followed.

                                II. DISCUSSION

      When reviewing an order granting a motion to suppress we accept the

district court’s factual findings, and determinations of witness credibility, unless

they are clearly erroneous. United States v. Flores, 

, 468 (10th Cir

1995). We view the evidence presented in the light most favorable to the district

court’s determination. 1 

give due weight to the district court’s


      1
       We note that the outcome of this case may have been different had the
District Court found Officer Chavez’s reasons for suspecting criminal activity
                                                                   (continued...)

                                        -4-
inferences drawn from historical facts. Ornelas v. United States, 

,

699 (1996); United States v. Patten, 

, 1193 (10th Cir. 1999).

Nevertheless, we review de novo the ultimate determination of reasonableness

under the Fourth Amendment. 

.

      A routine traffic stop is analogous to an investigative detention and is

analyzed under the principles enunciated in Terry v. Ohio, 

(1968).

United States v. Caro, 

, 1244 (10th Cir. 2001). To determine the

constitutionality of an investigative detention, we undertake a two-step inquiry.

First, we determine whether the police officer’s action was justified at its

inception. 

consider whether the action was reasonably related in

scope to the circumstances which justified the interference in the first place. 

routine traffic stop, a police officer may request a driver’s license

and vehicle registration, run a computer check, and issue a citation as a matter of

course. 

officer may ordinarily ask questions relating to a

driver’s travel plans without exceeding the scope of a traffic stop. United States

v. Williams, 

, 1267 (10th Cir. 2001). After completing these

activities, an officer may continue to detain a driver only if: (1) the officer has an


      1
       (...continued)
credible. See United States v. Kopp, 

, 1453-54 (10th Cir.1995)
(finding reasonable suspicion when the defendant was nervous, his travel plans
were implausible and inconsistent with passenger’s story, and he contradicted his
own statement on how long he knew the passenger).

                                         -5-
objectively reasonable and articulable suspicion that illegal activity has occurred

or is occurring, or (2) the detention has become a consensual encounter. 

.

      Here, there is no question that Officer Chavez’s initial stop for a seatbelt

violation was justified, nor does the Government argue that the initial detention

became a consensual encounter. The issue, therefore, is whether Officer Chavez

had a reasonable and articulable suspicion of criminal activity such that his

continued detention of Mr. Poppelsdorf after he issued the citation did not offend

the Fourth Amendment.

      In conducting this inquiry, we consider the totality of the circumstances.

United States v. Salzano, 

, 1111 (10th Cir. 1998). The first factor

the Government relies on as contributing to a reasonable suspicion is that Ms.

Garcia and Mr. Poppelsdorf fit a drug courier profile because they were headed

east on a “known drug route,” in the early morning hours, when smugglers are

known to travel through New Mexico. This Court has stated that traveling from a

source city is, “at best, a weak factor in finding suspicion of a crime.” 

. Here, there are no circumstances that distinguish this case

from a very large category of innocent travelers heading east, save Ms. Garcia’s

confusion as to her location discussed infra. See Reid v. Georgia, 

,

441 (1980). This lack of distinguishing characteristics weakens the already slight


                                        -6-
weight this factor carries. Moreover, as the District Court noted, neither Phoenix

nor Tucson, cities Officer Chavez identified as “source cities,” are situated on I-

40, which makes suspicion of a car headed east on I-40 “even less credible.”

      The Government also contends that the presence of a radar detector in the

rental car was suspicious. In New Mexico, however, radar detectors are legal.

The Government provided no evidence linking radar detectors to drug trafficking.

Compare 

(finding that the presence of a two-way

radio supports a reasonable suspicion of criminal activity when there was

testimony that the officer knew from experience that drug traffickers travel in

tandem and sometimes use such radios to avoid detection by law enforcement

personnel). Under these circumstances, the presence of a radar detector is, at best,

an indicator of an intent to speed, not an indicator of illegal drug activity.

      The Government next contends that Ms. Garcia’s and Mr. Poppelsdorf’s

alleged intense and increasing nervousness contributed to Officer Chavez’s

reasonable suspicion. Although we have consistently held that nervousness is of

limited significance when determining if reasonable suspicion exists, extreme and

continued nervousness is “entitled to somewhat more weight.” 

After

viewing the videotape of the traffic stop, however, the District Court found that

neither Ms. Garcia nor Mr. Poppelsdorf seemed particularly nervous; rather, it

found that they “became more agitated the longer the interrogation continued.”


                                         -7-
This finding is not clearly erroneous and nervousness, therefore, is of limited

significance in our analysis.

      Lastly, the Government entreats us to attach great weight to the pair’s

inconsistent stories regarding their relationship and the city where they spent the

night. The District Court found that a proper inference to be drawn from Ms.

Garcia’s confusion as to her location would be that she was impaired or

intoxicated, not that she was a drug courier. Moreover, because Ms. Garcia was

confused, any truthful response Mr. Poppelsdorf gave would have been

inconsistent with Ms. Garcia’s statement. The District Court also did not impart

much significance to their inconsistent stories regarding their relationship,

reasoning that “inconsistent answers regarding historical information would seem

less suspicious than inconsistencies about their . . . destination or the purpose of

their trip.” We give due weight to these inferences drawn by the District Court.

. Given this weight, we agree that their inconsistent

statements were not the type of inconsistencies that warrant suspicion of criminal

conduct. See United States v. Wood, 

, 947 (10th Cir. 1997) (holding

that an error in identifying city where car was rented was not suspicious because

there was no evidence the defendant was trying to conceal the fact that he rented

the car in a city known to be a source for drugs).

      In sum, the Government’s argument that there was reasonable suspicion of


                                         -8-
criminal activity boils down to four factors: (1) Ms. Garcia’s and Mr.

Poppelsdorf’s perceived extreme nervousness, which the District Court

discounted as a factual matter, (2) their conflicting stories regarding their

relationship, which the District Court did not find suspicious of a criminal act,

(3) their conflicting stories regarding their location, which the District Court

attributed to Ms. Garcia’s early morning confusion, and (4) they were headed east

with a radar detector, which, under the circumstances of this case, we do not find

indicative of wrongdoing. Viewing the evidence in a light most favorable to Mr.

Poppelsdorf and giving due weight to the inferences drawn by the District Court,

we hold that Officer Chavez did not have a reasonable suspicion that Ms. Garcia

and Mr. Poppelsdorf were involved in criminal activity and it was therefore

unlawful to detain Mr. Poppelsdorf after Ms. Garcia was issued the seatbelt

citation.

                                III. CONCLUSION

       For the foregoing reasons, we AFFIRM the District Court’s order

suppressing the evidence seized from the Chrysler.

                                        ENTERED FOR THE COURT,



                                        Deanell Reece Tacha
                                        Chief Circuit Judge



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