August 31, 2015

Tenth Circuit: USPS Regulations Prohibiting Firearms in Post Office Building and Adjacent Parking Lot Constitutional

The Tenth Circuit Court of Appeals issued its opinion in Bonidy v. United States Postal Service on Friday, June 26, 2015.

Tab Bonidy is a resident of Avon, Colorado, who has a permit to carry concealed firearms. Avon does not have residential postal delivery services; instead, residents must pick up their mail at the Avon post office, which is open to the public at all times. Because the United States Postal Service (USPS) does not allow firearms on its property, Bonidy sends an assistant to pick up his mail. Bonidy, through his attorney, sent a letter to the USPS general counsel, asking if he would be prosecuted for carrying a concealed weapon into the post office or storing it in his truck in the parking lot while he got his mail, and the general counsel said he would. Bonidy sued for declaratory and injunctive relief, claiming the prohibition violated his Second Amendment right to bear arms for self-defense. Bonidy and the government filed cross-motions for summary judgment. The district court held the regulation constitutional as applied to concealed firearms, and the regulation regarding open carry was constitutional as applied to the post office building itself, but not as to the parking lot. The government appealed and Bonidy cross-appealed.

The Tenth Circuit analyzed its own and U.S. Supreme Court case law and affirmed the district court’s holding that the regulation was constitutional as applied to concealed firearms. With regard to open carry, a divided panel of the Tenth Circuit affirmed the district court’s ruling as to the post office building but reversed as to the parking lot, finding it constitutional to prohibit firearms both within the building and in the parking lot.

Citing District of Columbia v. Heller, 554 U.S. 570 (2008), the Tenth Circuit affirmed the prohibition on carrying firearms in “sensitive places such as schools and government buildings.” Although Bonidy argued the language was dicta, the Tenth Circuit noted the Supreme Court repeated its holding in a 2010 case, and the Circuit itself had followed the language in its own holdings, which made it binding precedent. The Tenth Circuit applied an intermediate scrutiny test to determine that the ban on firearms in the post office parking lot was constitutional, since the government is empowered to regulate its own business. The Tenth Circuit further found that, as a national government-owned business, the USPS may create a single national rule regarding firearms carry and need not tailor its rules to each individual customer or building.

The district court’s holding that the concealed carry ban was constitutional as applied to both the USPS building and parking lot was affirmed. The district court’s holding that the prohibition on open carry was constitutional as to the post office building was affirmed. The district court’s holding that the prohibition on open carry was unconstitutional as to the parking lot was reversed. Judge Tymkovich wrote a thoughtful dissent; he would have affirmed the district court in all aspects.

Tenth Circuit: Prison Guard May be Liable for Failing to Mitigate Risk of Sexual Assault by Offsite Supervisor

The Tenth Circuit Court of Appeals issued its opinion in Castillo v. Day on Monday, June 22, 2015.

Plaintiffs in this case are a group of women formerly incarcerated at the Hillside Community Corrections Center in Oklahoma City, Oklahoma. As part of an off-site work program, the women performed landscaping and groundskeeping work at the Oklahoma Governor’s Mansion. They were not under the direct supervision of any prison guard while at the mansion, but were supervised by the mansion’s groundskeeper, Anthony Bobelu. Bobelu and Russell Humphries, a cook at the mansion, sexually assaulted and raped the women at the mansion. In January 2009, plaintiff Reeder told Hillside guard Mary Pavliska that she had been sexually abused by Bobelu and Humphries. Pavliska told her to return to her dorm, and Reeder never heard anything else about it. Pavliska testified that she told Charlotte Day, another guard, about the assaults, but Day denied being told. On another occasion, Day taunted plaintiff Garell about beginning a sexual relationship with Bobelu.

Plaintiffs brought suit under 42 U.S.C. § 1983 and alleging violations of their Eighth Amendment right to be free from cruel and unusual punishment. Their complaint named 15 defendants, including Bobelu, Humphries, Day, and Pavliska. The claims against several defendants were dismissed without prejudice, and all remaining defendants except Bobelu moved for summary judgment. The district court granted summary judgment to all except Day and Pavliska, finding a jury could conclude they were deliberately indifferent to the known substantial risk of serious harm to plaintiffs. Day and Pavliska filed interlocutory appeals, arguing the district court erred in finding they were not entitled to qualified immunity.

The Tenth Circuit quickly disposed of Day’s appeal, noting that her challenge was to the district court’s sufficiency determination and not that the plaintiffs failed to assert violation of a constitutional right. Because the sufficiency issue was not ripe for appeal, the Tenth Circuit dismissed Day’s appeal for lack of jurisdiction.

Finding jurisdiction to evaluate Pavliska’s appeal, the Tenth Circuit considered her arguments that she was entitled to qualified immunity because plaintiffs did not allege she affirmatively violated their constitutional rights, the conduct of Bobelu and Humphries did not rise to the level of a constitutional violation, and she did not have actual knowledge of the bad acts of Bobelu and Humphries. Plaintiffs asserted Pavliska violated their Eighth Amendment right to be free from sexual assault while imprisoned by failing to take reasonable measures to abate the risk of assault. Pavliska argued that because she had no official authority over Bobelu and Humphries she could not be liable for their conduct, which the Tenth Circuit characterized as an argument that she could only be liable for conduct of those she supervised directly. The Tenth Circuit rejected this argument, finding it well established that prison officials can be held liable for failing to prevent assault. Pavliska also argued that the conduct of Bobelu and Humphries was not sufficiently serious to constitute a constitutional violation. The Tenth Circuit noted that this was a challenge to the sufficiency of the evidence and it lacked jurisdiction to hear the issue. Finally, Pavliska argued she could not be held liable for any acts occurring before January 2009, but the Tenth Circuit noted the plaintiffs in their opening brief asserted claims arising after January 2009 only.

The district court’s denial of summary judgment as to Pavliska was affirmed insofar as it was a challenge to the motion denial and not to the sufficiency of the evidence, and Day’s and Pavliska’s appeals challenging sufficiency were dismissed for lack of jurisdiction.

Colorado Court of Appeals: Retroactive Application of Marijuana Decriminalization Appropriate for Non-Final Sentences

The Colorado Court of Appeals issued its opinion in People v. Boyd on Thursday, August 13, 2015.

Marijuana—Possession—Presumption of Innocence—Burden of Proof—Voir Dire—Amendment 64—Retroactive Application.

An undercover police officer approached defendant and her boyfriend while they were in the boyfriend’s van. The officer purchased marijuana from the boyfriend. The boyfriend put the cash received from the officer on the van’s dashboard. Defendant and her boyfriend then drove away. Other police officers stopped the van and arrested defendant and her boyfriend. The officers found a small amount of marijuana and the cash from the undercover officer in defendant’s pocket. A jury convicted defendant of possession of marijuana and attempted distribution of marijuana.

Defendant contended, for the first time on appeal, that certain comments by the trial court during voir dire incorrectly instructed the prospective jurors, including those ultimately seated, regarding the presumption of innocence. Although the trial court’s comments were not a good statement of the law, they were not instructions and did not reflect adversely on defendant or on the issue of her innocence. The written jury instructions correctly stated the burden of proof and the presumption of innocence. Therefore, the comments did not constitute plain error in this case.

Defendant also argued that Amendment 64 applies retroactively to decriminalize her possession of marijuana, and consequently, her conviction for possession of less than one ounce of marijuana should be vacated. Section 16(3) provides that possession of one ounce or less of marijuana and certain other acts “are not unlawful.” Convicted criminal defendants are entitled to receive the “benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.” Defendant was found guilty on August 8, 2012, and sentenced and convicted on November 14, 2012. Thus, because her appeal remains pending, her conviction for possession of less than one ounce of marijuana was vacated.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Consecutive Sentences May Constitute De Facto Life Sentence for Juvenile Offender

The Colorado Court of Appeals issued its opinion in People v. Ellis on Thursday, August 13, 2015.

Juvenile—Murder—Life Sentence—Eighth Amendment—Possibility of Parole—Life Expectancy—Direct Transfer Hearing—Jury Selection—Batson Challenge.

Ellis was 17 years old when he shot and killed C.H. and wounded N.A. from the backseat of his friend’s car. Defendant was found guilty of the charges against him for these crimes. He was sentenced to life with the possibility of parole after forty years on the first-degree murder conviction and a thirty-two-year consecutive sentence for the attempted first-degree murder–extreme indifference conviction.

On appeal, Ellis contended that his sentence to life with the possibility of parole after a minimum of forty years’ imprisonment, together with his mandatory consecutive term of thirty-two years imprisonment, is the equivalent of life without the possibility of parole and, therefore, unconstitutional. The Eighth Amendment prohibits mandatory life sentences without the possibility of parole for juveniles convicted of homicide. Ellis’s sentence would constitute a de facto life sentence without the possibility of parole, and therefore would be unconstitutional, if it left Ellis without a meaningful opportunity for release. However, because Ellis’s contention depended on a factual determination of his life expectancy, which the trial court did not previously conduct, the case was remanded to the trial court to make this determination.

Ellis contended that the trial court erred when it denied his request for a direct transfer hearing. CRS § 19-2-517(1)(a)(I) permits prosecutors to charge juveniles 16 years old or older as adults, without a transfer hearing, if their charges include a class 1 or 2 felony. The reenacted statute included a provision allowing juveniles charged by direct filing to file a motion with the district court seeking transfer to juvenile court. However, the reenacted statute became effective three days after a jury convicted Ellis. Therefore, the trial court did not err when it denied Ellis’s reverse transfer motion as untimely.

Ellis also contended that the trial court abused its discretion when it denied his Batson challenge to the prosecution’s use of peremptory challenges to excuse two potential jurors on account of their race. The prosecution provided a race-neutral explanation, the court found the prosecutor’s reasons believable, and the trial court’s ruling is supported by the record. Therefore, the trial court did not clearly err when it denied Ellis’s Batson challenges.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Waiver of 11th Amendment Immunity Applies to All Divisions of State Department of Labor

The Tenth Circuit Court of Appeals issued its opinion in Arbogast v. State of Kansas Department of Labor on Friday, June 19, 2015.

Kathleen Arbogast worked for the Kansas Department of Labor (KDOL) in the Workers’ Compensation Division and suffers from asthma. She complained that her co-workers’ perfumes were triggering asthma attacks, so the Division moved her to an office in the basement in September 2010, but she continued to have asthma attacks when co-workers would visit her office. In August 2011, Ms. Arbogast was terminated by her supervisor, Karin Brownlee. Ms. Arbogast filed suit in January 2013, asserting claims of discrimination and retaliation in violation of the Rehabilitation Act, and named as defendants KDOL and Brownlee in her individual capacity. KDOL sought to dismiss the Rehabilitation Act claims, arguing KDOL lacks the capacity to sue or be sued and Kansas has not waived its judicial immunity under the Eleventh Amendment. The district court denied KDOL’s motion to dismiss and KDOL brought an interlocutory appeal.

The Tenth Circuit first examined its appellate jurisdiction to consider KDOL’s claim that it lacked capacity to be sued. KDOL argued that under state law, as a mere agency of the state, it lacked capacity to sue or be sued, and the collateral order doctrine conferred immediate jurisdiction on the Tenth Circuit to hear the issue. However, at oral argument, KDOL’s counsel conceded that the collateral order doctrine may not permit interlocutory review of the capacity argument. The Tenth Circuit agreed with the concession. Citing three requirements to invoke jurisdiction under the collateral order doctrine, i.e., (1) the district court’s order conclusively resolved the disputed issue, (2) the order resolved an issue separate from the merits of the case, and (3) the order is effectively unreviewable on order from final judgment, the Tenth Circuit found KDOL’s argument failed at the first prong because the district court did not conclusively determine KDOL’s capacity to sue or be sued. The Tenth Circuit dismissed the issue on appeal.

Next, the Tenth Circuit evaluated whether KDOL waived Eleventh Amendment immunity by accepting funds for the Unemployment Insurance Division housed within the Department of Labor. KDOL contended that because Ms. Arbogast worked for the Workers’ Compensation Division, not the Unemployment Insurance Division, there was no waiver of immunity. Looking at the Rehabilitation Act, the Tenth Circuit found the plain language included in the waiver of immunity “all the operations of . . . a department . . . of a State.” Since the Workers’ Compensation Division and Unemployment Insurance Division were both housed in the Kansas Department of Labor, the acceptance of funds for the Unemployment Insurance Division constituted a waiver of Eleventh Amendment immunity for the entire Department of Labor. Kansas argued that extending the waiver of immunity to the Workers’ Compensation Division when it received no federal funds would violate the Spending Clause of the U.S. Constitution. The Tenth Circuit found the first Dole factor was satisfied because allowing those who suffer discrimination to bring private causes of action is “reasonably calculated” to achieve Congress’s goal of combating discrimination. KDOL also argued it did not have notice of its waiver, but the Tenth Circuit disagreed, finding the plain language of the Rehabilitation Act provided sufficient notice that the waiver extended to all the operations of the department. KDOL also argued that the waiver of immunity is unrelated to the federal interest justifying expenditure of the funds, but the Tenth Circuit again disagreed, finding that Congress’s intent to eliminate discrimination based on disability was reasonably related to its distribution of federal funds.

The Tenth Circuit dismissed due to lack of jurisdiction KDOL’s argument that it lacked capacity to be sued. The Tenth Circuit affirmed the district court’s finding of a waiver of Eleventh Amendment immunity.

Tenth Circuit: No Qualified Immunity Where Officer Acted with Recklessly and with Deliberate Indifference

The Tenth Circuit Court of Appeals issued its opinion in Browder v. City of Albuquerque on Tuesday, June 2, 2015.

After finishing a shift, Sergeant Adam Casaus of the Albuquerque Police Department sped through city streets with his lights and sirens on, driving at an average of 66 miles per hour for 8.8 miles. He sped through a red light at one intersection and hit a car, killing Ashley Browder and causing serious injuries to her sister, Lindsay. Lindsay and her parents brought a § 1983 action in federal court, but Sergeant Casaus urged the district court to deny relief based on qualified immunity. The district court declined to dismiss the case and Casaus appealed.

The Tenth Circuit first noted that the parties did not dispute that Casaus’ conduct fell “under color of state law.” The Browders alleged a violation of their Fourteenth Amendment right to due process. The Tenth Circuit clarified that the alleged violation was a substantive due process claim, evaluating whether the claim was carefully described, whether the right is “fundamental,” and whether the government’s infringement was “direct and substantial,” next turning to the question of whether the government had substantial justification for its actions. Finally, the Tenth Circuit noted that when a state court claim can provide the same relief as a federal § 1983 claim, the federal court should abstain in favor of the state remedial process.

Evaluating the case at hand, the Tenth Circuit found no question that the Ashley’s death and Lindsay’s injuries qualified as direct and substantial impairments of their fundamental right to life, and that Sergeant Casaus’ actions were arbitrary in that they were performed capriciously or at his pleasure and without good reason. Although Casaus claimed he was acting on official business—pursuing a car operating in a dangerous manner—the facts in the complaint expressly contend Casaus was not pursuing official business of any kind. The Tenth Circuit also rejected Casaus’ contention that because he activated his lights and sirens he was not acting recklessly as a matter of law. Casaus argued he did not have time to form a reckless indifference to human life, because the accident occurred 2.5 seconds after he entered the intersection. However, the Tenth Circuit noted he had driven 8.8 miles at high speeds prior to the accident, and therefore he had about 8 minutes before the crash to form the requisite mens rea.

Finally, the Tenth Circuit evaluated whether the law was clearly established at the time of Casaus’ accident. Noting that “some things are so obviously unlawful that they don’t require detailed explanation and sometimes the most obviously unlawful things happen so rarely that a case on point is itself an unusual thing,” the Tenth Circuit found that although there was not much case law regarding officers causing fatal accidents on their own time, the Supreme Court ruled in 1986 that when a private person suffers a serious injury due to an officer’s intentional misuse of his or her vehicle a viable due process claim can arise, and the Tenth Circuit ruled in 1996 that a Fourteenth Amendment claim can arise from an officer speeding at 60 miles per hour. The Tenth Circuit also ruled in 2006 that a police officer could be liable under the Fourteenth Amendment for driving recklessly and with deliberate indifference. Taking all these cases together, the Tenth Circuit found ample support that the law was clearly established at the time of the accident.

The Tenth Circuit affirmed the district court. Judge Gorsuch wrote a concurrence about the preference for tort claims to be resolved under state law rather than federal law.

Colorado Court of Appeals: Court Erred by Allowing Defense Counsel to Withdraw Without Questioning Defendant

The Colorado Court of Appeals issued its opinion in People v. Cardenas on Thursday, July 16, 2015.

Motion to Withdraw—Reversal.

Defendant was found guilty of various counts of second-degree burglary, attempted second-degree burglary, and theft. On appeal, defendant contended that the court’s failure to include him in a hearing on his attorney’s motion to withdraw and failure to inquire about his objections to or confusion about that motion, before allowing the attorney to withdraw, require reversal of his convictions. Defense counsel, who had replaced a public defender, filed a motion to withdraw, citing substantial and irreconcilable differences of opinion concerning the course of scope of representation. The court asked defendant’s counsel about the reasons for withdraw without the presence of defendant, and then asked defendant about the reasons for withdrawal, including difficulties with communication, but did not rule on the motion. The case was transferred to another judge, who held an in camera review without the presence of defendant and thereafter allowed defense counsel to withdraw. Without knowing what communication occurred between counsel and the court, defendant’s absence created a risk that his right to a fair trial was impaired. For this reason and because defendant’s presence was required by the rules of criminal procedure, the second judge abused his discretion in granting the motion without including defendant in the proceedings. Accordingly, the judgment of conviction was reversed, defendant’s sentence was vacated, and the case was remanded for a new trial.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Sentence Longer than Three Times Presumptive Range Illegal

The Colorado Court of Appeals issued its opinion in People v. Isom on Thursday, July 2, 2015.

Sexual Assault on a Child—Habitual Sexual Offender—Sentence—Extraordinary Aggravating Circumstances.

In 2003, a jury found defendant guilty of sexual assault on a child, enticement of a child, and contributing to the delinquency of a minor based on evidence that he had given a 14-year-old girl alcohol and then sexually assaulted her. The district court adjudicated him a habitual sex offender against children, and imposed consecutive sentences of forty years to life in prison on the sexual assault on a child count, and five years to life in prison on each of the counts of enticement of a child and contributing to the delinquency of a minor. The court later corrected the sentence for contributing to the delinquency of a minor to a determinate sentence of five years in prison.

On appeal, defendant argued that his sentence of forty years to life for sexual assault on a child is illegal. CRS §§ 18-3-412(2) and 18-1.3-1004(1)(c) require a district court to sentence a habitual sex offender against children to an indeterminate prison sentence with a lower term of three times the maximum of the presumptive range, unless the court finds extraordinary aggravating circumstances under CRS § 18-1.3-401, in which case the lower term can be up to six times the maximum of the presumptive range. Thus, under CRS § 18-1.3-1004(1)(c), the statutory minimum for the bottom end of defendant’s indeterminate sentence for this class 4 felony was eighteen years, and if extraordinary aggravating circumstances existed, the court could have imposed a bottom-end sentence of no more than thirty-six years. Because the court sentenced defendant to a bottom-end term of forty years, it was an illegal sentence. The sentence was vacated and the case was remanded for resentencing.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: District Scholarship Program Violates Colorado Constitution

The Colorado Supreme Court issued its opinion in Taxpayers for Public Education v. Douglas County School District on Monday, June 29, 2015.

Standing—Aiding Religious Schools—Colo. Const. Art. IX, § 7.

Four years ago, the Douglas County School District implemented its Choice Scholarship Pilot Program (CSP), a grant mechanism that awarded taxpayer-funded scholarships to qualifying elementary, middle, and high school students. Those students could use their scholarships to help pay their tuition at partnering private schools, including religious schools. The Supreme Court granted certiorari to determine whether the CSP comports with both the Public School Finance Act of 1994, CRS §§ 22-54-101 to -135 (Act), and the Colorado Constitution. The Court first held that petitioners lacked standing to challenge the CSP under the Act. The Court further held, however, that the CSP violates Article IX, § 7 of the Colorado Constitution. Accordingly, the Court reversed the judgment of the court of appeals and remanded the case so that the trial court may reinstate its order permanently enjoining the CSP.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Exclusion of Public During Trial was More Than Fleeting Occurrence and Violated Sixth Amendment

The Colorado Supreme Court issued its opinion in People v. Hassen on Monday, June 29, 2015.

Sixth Amendment Right to Public Trial.

At respondent’s trial, the trial court completely closed the courtroom during the testimony of two undercover officers. The Supreme Court granted certiorari to consider whether this closure constituted structural error. The Court held that the closure violated respondent’s Sixth Amendment right to a public trial and rejected the People’s argument that the closure was so trivial that it did not implicate respondent’s Sixth Amendment right. Accordingly, the Court affirmed the judgment of the court of appeals.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Defendant Waived Public Trial by Not Objecting to Closed Courtroom During Voir Dire

The Colorado Supreme Court issued its opinion in Stackhouse v. People on Monday, June 29, 2015.

Sixth Amendment Right to Public Trial—Waiver.

At petitioner’s trial, the court closed the courtroom for a portion of voir dire because the large jury pool created the risk of interested members of the public intermingling with the jurors and potentially biasing them. Petitioner’s counsel did not object to the closure at that time or at any time during the trial. The Supreme Court granted certiorari to determine whether petitioner affirmatively waived his right to a public trial in accordance with Anderson v. People, 490 P.2d 47, 48 (Colo. 1971), by not objecting to the known closure. The Court held that Anderson remains controlling, and thus petitioner affirmatively waived his public trial right when he did not object to the known closure. The court of appeals’ judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Totality of Circumstances Provides Reasonable Suspicion for Extended Traffic Stop

The Tenth Circuit Court of Appeals issued its opinion in United States v. Pettit on Wednesday, May 13, 2015.

Michael Pettit was pulled over in Utah after crossing a highway’s fog line multiple times. During the traffic stop, Pettit seemed excessively nervous, produced a suspended Missouri driver’s license after passing over a California license, and reported unusual travel plans to the trooper. The trooper asked permission to search the trunk of the car, which Pettit granted, and conducted a cursory pat-down search of the luggage, finding nothing. The trooper checked Pettit’s licenses, discovered they were both suspended, and completed the citation paperwork, but instead of returning the citation and license to Pettit, the trooper decided to question him further. He requested consent to search the entire car, which Pettit granted, and soon a drug-sniffing dog arrived and alerted to the presence of drugs. Over 2.5 kilograms of cocaine was found hidden in a spare tire in the trunk. Pettit was indicted on one count of possession of cocaine with intent to distribute and was found guilty by a jury. He was sentenced to 10 years’ imprisonment followed by eight years’ supervised release. He appealed the district court’s denial of his motion to suppress the evidence uncovered after the trooper completed the citation.

Pettit contended the trooper unlawfully extended the traffic stop based on “hunches and unjustified generalizations.” The parties agree that the initial traffic stop was lawful since Pettit crossed the fog line multiple times, and they agree that the initial stop ended when the trooper returned with the completed citation. However, since the trooper did not return Pettit’s license and registration at that time, the encounter did not become consensual. The parties disagree about whether there was reasonable suspicion justifying the continuation of the traffic stop at that time. The Tenth Circuit evaluated each factor supporting reasonable suspicion separately and in aggregate.

Pettit first argued his nervousness could not form the basis for reasonable suspicion. However, the Tenth Circuit examined the record and found that the trooper testified with particularity about the excessive nature of Pettit’s nervousness, including that his lower body would not stop shaking, Pettit said twice within 25 seconds that the officer was making him nervous, and his hand was shaking as he gave the trooper his license. The Tenth Circuit next addressed Pettit’s unusual travel plans. Although travel plans in themselves may not necessarily form the basis for reasonable suspicion, the court found that prior to the citation’s completion, the trooper had discovered Pettit was driving cross-country in a vehicle registered to an absent third party, which is consistent with drug trafficking. Next, Pettit argued that the two suspended licenses could not have given rise to reasonable suspicion, but the Tenth Circuit again disagreed, finding the licenses alone could have contributed to the formation of an objectively reasonable suspicion of illegal activity, and could also have heightened the officer’s suspicion about Pettit’s unusual travel plans. Finally, Pettit argued that the officer’s initial fruitless search militated against a finding of reasonable suspicion, but the Tenth Circuit again disagreed, finding the search was only cursory and occurred before much of the officer’s questioning.

Based on the totality of the circumstances, the Tenth Circuit found no error in the district court’s denial of Pettit’s motion to suppress, and found the officer had reasonable suspicion to extend the traffic stop.