United States v. Grier

United States Court of Appeals
Fifth Circuit
F I L E D
April 7, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-30676
_______________
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 pos-
session 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
by Tommy Howard, heading east on Interstate
20 toward Atlanta, Georgia. Right before the
Camp Road exit in Ouachita Parish, Louisiana,
a sign warns motorists of a “narcotics check-
point” 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 publis-
hed and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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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 im-
proper lane usage.
When Howard opened his window, Crane
detected an overwhelming scent of fabric soft-
ener. He asked Howard for his driver’s li-
cense; Howard complied but avoided eye con-
tact. 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 ques-
tions 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 dif-
ferent from the name Howard had stated, and
he could not give the name of Howard’s moth-
er, his claimed aunt. Crane then asked Grier
whether there were any weapons in the vehi-
cle. 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 concedes that although the
computer check took four to five minutes, it is
uncertain when in the course of events the dis-
patcher replied, and it could have been as early
as immediately before or during the question-
ing of Grier. After determining that Howard’s
license was valid, Crane concluded his ques-
tioning 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 several bricks
of cocaine hidden under the seats of the vehi-
cle and several bricks of marihuana in the trun-
k, wrapped in fabric softener sheets 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 suspi-
cion that Grier and Howard were involved in
illegal narcotics activity based on (1) the stro-
ng 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 an-
swers 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 sup-
press.
After the hearing, but before the ruling,
Grier filed a motion to supplement the hearing
record with other evidence, including tran-
scripts of the local police department’s radio
transmissions for the evening of the stop, and
Crane’s testimony at his bond hearing. Al-
though 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.

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II.
Grier argues that the evidence was the fruit
of an illegal stop under the Fourth Amend-
ment.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
stops in accordance with of Terry v. Ohio, 392
U.S. 1 (1968),2 under which police investiga-
tory stops are reviewed in two steps: We in-
quire (1) whether the officer’s actions were
justified at the inception of the stop; and
(2) then whether the officer’s subsequent ac-
tions 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 initial stop, we focus
on the second stage of the Terry inquiry.
Under the second prong of the Terry in-
quiry, 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 be-
cause a detention must be temporary and last
no longer than is necessary to effect the pur-
pose of the stop, unless further reasonable
suspicion, supported by articulable facts,
emerges.” Id. The essence of Grier’s argu-
ment is that the seizure was unconstitutionally
extended beyond the amount of time the of-
ficer needed to investigate the traffic offense
without sufficient reasonable suspicion of drug
trafficking.
According to the factual findings made by
the district court, the officer detected the stro-
ng 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 factual findings were clearly errone-
ous. Although nervousness alone may not
support reasonable suspicion of drug traffick-
ing,3 the nervous and erratic behavior of the
driver, combined with the overwhelming scent
of a known masking agent, did establish rea-
1 In reviewing a ruling on a motion to suppress,
we review factual findings for clear error and ques-
tions 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 fa-
vorable 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 individual may be nervous for many
reasons, and although it might be because the
individual is trafficking drugs, the nervousness
could equally be caused by the fact that the defen-
dant 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 Unit-
ed States v. Dortch, 199 F.3d 193, 199 (5th Cir.
1999), we concluded that suspicious and incon-
sistent 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 reason-
able 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.”

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sonable suspicion for drug trafficking, so
Crane had the authority to continue the inves-
tigation 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 sup-
pression hearing record. We review this ruling
for abuse of discretion.5 Grier argues that the
court erred in refusing to supplement the rec-
ord 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, be-
cause 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 subjec-
tive 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 differ-
ences 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 gov-
ernment 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 rea-
sonable 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 re-
view 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 of-
ficers.”)

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