## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

________________ No. 06-2245

________________ United States of America, Appellant,

v. Horasio Herrera-Gonzalez, Appellee. *
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* Appeal from the United States District Court for the Southern District of Iowa.

________________ Submitted: October 17, 2006 Filed: January 26, 2007

________________ Before WOLLMAN, RILEY and GRUENDER, Circuit Judges.

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GRUENDER, Circuit Judge.

The Government appeals the district c ourt’s decision to grant Horasio HerreraGonzalez’s motion to suppress evidence seized after a search of his car during a traffic stop. Because we believe the traffic stop wa s lawful and, even if it was not, HerreraGonzalez’s voluntary consent to the search purged any arguable taint of the stop, we

reverse.-2- I. BACKGROUND

During the clear mid-morning of July 18, 2005, Dallas County Deputy Sheriff Scott Faiferlick had been traveling fo r some distance behind Herrera-Gonzalez’s vehicle eastbound on Interstate 80, a four-lane interstate with two lanes each direction. Faiferlick observed the vehicle cross the fog lin e on the right side of the right lane for “about 10 to 15 seconds.” Prior to this observation, Faiferlick had not observed any other violations or unusual driving. Atthe time Herrera-Gonzalez crossed the line, two tow trucks were 50 to 100 yards ahead, partly in the median and partly on the left shoulder of the highway. Nothing was bloc king the right shoulder when he crossed the fog line. Prior to reaching the tow trucks, however, Herrera-Gonzalez moved back into the right lane of travel as he approached a short bridge that was just before the tow trucks. After crossing the bridge, Herrera-Gonzalez “hugged” the fog line until he passed the tow trucks, at which point he resumed travel in the center portion of the right lane. Herrera-Gonzalez testified that he crossed the fog line to avoid the tow trucks. Faiferlick testified that there was no need to cross the fog line to avoid the trucks and that he believed it was unsafe to cross the line. Bas ed upon the fog-line crossing and his concern that the driver mi ght be impaired or tired, Faiferlick stopped Herrera-Gonzalez for violating Iowa Code § 321.306, which requires that “[a] vehicle shall be driven as nearly as practical en tirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

As Faiferlick pulled the vehicle over, hecalled the California license plates in to dispatch. The plates cam e back “not on file,” which according to Faiferlick meant that there was no record for th e plate or that it was an invalid plate. When Faiferlick approached the vehicle, he could see th at Herrera-Gonzalez was not impaired, asleep or intoxicated. Herrera-Gonzalez told Faif erlick his name was Jose Rodriguez and produced a California driver’s license bearing the name Jose Rodriguez, as well as the vehicle’s registration and proof of insuran ce. Faiferlick then asked Herrera-Gonzalez1 Miranda v. Arizona , 384 U.S. 436 (1966).

-3- to accompany him to his patrol car, which he did. While Herrera-Gonzalez was in the patrol car, Faiferlick asked him where he was going, where he was coming from, and the nature of his employment. Faiferlick also tried but failed to verify HerreraGonzalez’s driver’s license and issuedHerrera-Gonzalez a written warning for improper use of lanes. Herrera-Gonzalez offered to retrieve documents from a briefcase in his car that allegedly would ve rify his identity, but Faiferlick declined the offer. Shortly thereafter, Faiferlick asked if he could retrieve th e documents and asked for consent to search the vehicle. He rrera-Gonzalez claimed he consented to have Faiferlick retrieve the verify ing documents only, while Faiferlick contended that the consent was not limited in any way. Faiferlick had written consent forms in his vehicle, but did not provide one to Herrer a-Gonzalez or inform him of his right to refuse consent.

The search revealed a hidde n compartment behind the r ear seat of the car that Faiferlick believed containe d controlled substances. Upon finding the compartment, Faiferlick placed Herrera-Gonzalez in handcu ffs, resumed his search, and through the use of a fiber-optic scope obs erved numerous packages insidethe compartment. After observing the packages, Faiferlick returned to his patrol car, noticed that the videotape that he thought was recording the stop ha d ended, and placed a new tape in the recorder. Faiferlick testified that approxi mately 30 minutes elapsed between the time his tape stopped and the time he inserted the new tape. In an effort to remedy the lapse in videotaping, Faiferlick called Deputy Adam Infante so that a third party could witness him reading Herrera-Gonzalez the Miranda 1 rights. During the call, HerreraGonzalez confirmed that he had given c onsent to search the car. After law enforcement officers later found 14 kilogram s of cocaine in the hidden compartment, Herrera-Gonzalez again confirmed in an inte rview with Infante that he had given Faiferlick consent to search his vehicle. Herrera-Gonzalez did not indicate in either of the subsequent affirmations that th e consent had been limited in any way.2 The district court also concluded thatthe consent was voluntary, noting that neither party had raised the issue. Herrera-Gonzalez does not challenge that conclusion on appeal.

-4- The district court concluded that the stop violated the Fourth Amendment because Faiferlick did not have an objectiv ely reasonable basis to believe a traffic violation had occurred. Th e court found that there was “no factual basis for a conclusion that the Defendant’s modest m ovement from his lane of travel could not be ‘made with safety’” and that the fog-line crossing could reasonably be interpreted as an attempt to give the tow truck worker s more room. Moreover, the district court noted that Faiferlick did not pursue a ny line of questioning that would have investigated his alleged suspicion that Herrera-Gonzalez may have been tired or intoxicated. The court did not make factual findings as to whether Herrera-Gonzalez stayed in his lane “as nearly as practical ” or whether he had “ascertained” prior to crossing the line that his move could be made safely.

With respect to the scope of Herrera-G onzalez’s consent, the district court found Faiferlick’s testimony more credible than Herrera-Gonzalez’s, concluding that he had not limite d his consent. 2The court went on to conclude, however, that the consent was not sufficient to purge the taint of the illegal stop because: (1) the temporal proximity between the stop and the consent was unclear, but was no more than 20 minutes and could have occurred with in a few minutes after the first tape ran out (some 4 minutes after the stop began) or some 15 minutes later; (2) there were no intervening circumstances between the st op and the consent; and (3) the purpose and flagrancy of Faiferlick’s misconduct weighed in favor of Herrera-Gonzalez. As support for its official-misconduct conclusion, the district court noted the unreasonable basis for the stop and questione d Faiferlick’s purpose in seeking consent to search where the only perceived violation was a fog-line crossing. According to the district court, these facts and Faifer lick’s questions regarding Herrera-Gonzalez’s travel itinerary and employment suggested a “quality of purposefulness” in-5- Faiferlick’s actions, particularly becausenothing had transpired during the stop to suggest that a search for contraband or ev idence of a crime was necessary. Ultimately, however, the court concluded that even ab sent flagrant official misconduct, the uncertainty of the temporal proximity a nd the lack of intervening circumstances rendered Herrera-Gonzalez’s consent insufficien t to purge the taint of the illegal stop. Consequently, the district court gran ted Herrera-Gonzalez’s motion to suppress.

II. DISCUSSION

Having reviewed the suppression hearing transcript and the video recording of the traffic stop, we conclude that the district court erred in holding that the traffic stop was objectively unreasonable.

This court reviews the district court’s findings of fact for clear error and its legal conclusions about probable cause and reasonable suspicion de novo. United States v. Washington , 455 F.3d 824, 826 (8th Cir. 2006). A traffic stop is reasonable under the Fourth Amendment “if it is s upported by either probable cause or an articulable and reasonable suspicion that a traffic violation has occurred.” Id. Even if the officer was mistaken in concluding that a traffic violation occurred, the stop does not violate the Fourth Amendment if the mistake was an “ objectively reasonable one.” Id. ; United States v. Martin , 411 F.3d 998, 1001 (8th Cir. 2005) (noting that “[t]he determinative question is not whether [the defendant] actually violated the Motor Vehicle Code . . . but whether an objectively reasonable police officer could have formed a reasonable suspicion that [the defendant] was committing a code violation”). While officers have an obligation to understand the law, this court should not expect them to “interpret the traffic laws with the subtlety and expertise of a criminal defense attorney,” Martin , 411 F.3d at 1001 (quoting United States v. Sanders , 196 F.3d 910, 913 (8th Cir. 1999)), a nd the determination of objective reasonableness “is not to be made with th e vision of hindsight, but instead by looking to what the officer reasonably knew at the time.” United States v. Smart , 393 F.3d-6- 767, 770 (8th Cir. 2005). Finally, the cons titutional reasonableness of a traffic stop does not depend on the actual motivations of the officer involved, and the subjective intentions of the officer making the stop ar e irrelevant in dete rmining the validity of the stop. Whren v. United States , 517 U.S. 806, 813 (1996).

Federal courts of appeals, including this one, have reached different conclusions on the objective reasonableness of traffic stops based on statutes very similar to § 321.306, depending on the particularcircumstances of each case. Compare United States v. Herrera Martinez , 354 F.3d 932, 933-34 (8th Cir. 2004) (per curiam) (concluding that the officer had probable causeto make a traffic stop where the officer observed no other traffic violations than a single fog-line crossing); United States v. Pulliam , 265 F.3d 736, 739 (8th Cir. 2001) (concl uding that a traffic violation had occurred where the officer observed the driv er drift over the fog line twice in two miles); United States v. Alvarado , 430 F.3d 1305, 1309 (10th Cir. 2005) (holding that an officer had a reasonable, articulable suspicion that the driver had committed a traffic violation where the defendant brie fly crossed the fog line once and failed to point to any objective factor that might ha ve interfered with his ability to keep his vehicle in a single lane; noting particularly the absence of any adverse weather or road conditions that would necessitate crossing the line); United States v. Zabalza , 346 F.3d 1255, 1258 (10th Cir. 2003) (concluding that the officer had “more than the necessary objectively reasonable, articulable suspicion” that the driver had committed a traffic violation where he observed th e vehicle cross the center line twice), with United States v. Gregory , 79 F.3d 973, 978 (10th Cir. 1996) (finding no reasonable suspicion based on an isolated incident of a vehicle crossing the fog line where the road was winding and mountainous and the weather condition was windy); United States v. Freeman , 209 F.3d 464, 466 (6th Cir. 2000) (finding no probable cause based on single incident of a large motor home crossing the fog line for a few feet).

In addition, the Iowa Supreme Court’s analysis of § 321.306 in State v. Tague , 676 N.W.2d 197 (Iowa 2004), bears some rele vance to our objective reasonableness-7- inquiry because a state’s judicial interpretati on of a state statute can aid in determining whether an officer’s actions had some basis in state law. Cf. Washington , 455 F.3d at 828 (noting that the concept of an obj ectively reasonable mistake of law cannot be unmooored from actual legal authority; noti ng the government’s failure to provide evidence of, among other things, state case law that would create some objectively reasonable basis for the traffic stop where the statute clearly did not prohibit the conduct the officer thought it did); Martin , 411 F.3d at 1001 (noting the lack of evidence in the record of previous judicial interpretations of the statute that might aid in the objective reasonableness inquiry, gi ven the statute’s “unusual text”). In Tague, the officer observed no suspicious driving other than that the vehicle had “just barely crossed the left line for a brief period.” Tague , 676 N.W.2d at 204. Given the State’s “failure to prove . . . any objective ba sis to believe Tague’s movement was done without first ascertaining that he could makesuch movement with safety,” the court held that the officer did not have probable cause under the Iowa Constitution to stop the driver for a violation of § 321.306. Id.

In this case, the district court c oncluded that Herrera-Gonzalez’s fog-line crossing could be interpreted as a reasonable response to th e tow trucks ahead and that it was, in fact, safely made. It did not, however, make factual findings as to whether Herrera-Gonzalez first ascertained that the movecould be made with safety or whether the position of the tow trucks in the median and on the left shoulder actually made it impractical for him to stay in the right-hand lane of the interstate. See Iowa Code § 321.306 (“A vehicle shall be driven as near ly as practical entirely within a single lane and shall not be moved from such laneuntil the driver has first ascertained that such movement can be made w ith safety.”). In fact, th e suppression hearing transcript reveals that after traveling 10 to 15 sec onds straddling the fog line, Herrera-Gonzales crossed back into the right lane in order to cross the bridge be fore reaching the tow trucks. This at least suggests an objec tive basis for believing Herrera-Gonzalez did not ascertain that his initial crossing of the fog line could be accomplished safely. Herrera-Gonzalez then remained in the rightlane hugging but not crossing the fog line3 An officer’s subjective motivations in initiating a traffic stop play no role in analyzing the constitutional reasonableness of the stop under the Fourth Amendment. Whren , 517 U.S. at 813. Thus, Faiferlick’s failu re to conduct a fiel d sobriety test or pursue a line of questioning that would have investigated his st ated suspicion that Herrera-Gonzalez was impaired, even if it did reveal a suspect motivation, is irrelevant to the question of whether it was objectivel y reasonable for Faif erlick to believe a traffic violation had occurred. Further, Faiferlick testif ied that when he approached the vehicle he could see that Herrera -Gonzalez was not impaired, asleep or intoxicated, which rendered that line of questioning unnecessary in any event.

-8- as he passed the tow trucks, which raises the further question of whether it was impractical for him to stay in his lane in the first place. Indeed, Faiferlick testified that the tow trucks’ position in the median and on the left shoulder did not make staying in the right lane impractical and that he simply moved his patrol car from the left lane of the interstate to the right lane in order to a void the tow trucks. Given these differences between the circumstances of this case and those in Tague, Tague ’s holding does not compel the conclusion thatFaiferlick’s belief that Herrera-Gonzalez violated § 321.306 was objectively unreasonable.

To the contrary, under the circumstan ces of this stop—the 10 to 15 second crossing of the fog line, the time of day (morning), the clear weather conditions, the fact that there was a full lane of travel between Herrera-Gonzalez and the tow trucks, the lack of any additional a dverse conditions that would ha ve made it impractical for Herrera-Gonzalez to keep his car in the lane, and the fact that Herrera-Gonzalez returned to his lane to avoid the bridge and then continued within his lane as he passed the tow trucks—and given the obvious difficulty of observing from a patrol car whether a driver has ascertained that his m ove can be safely ma de, we conclude that Faiferlick had an objectively reasonable basis to believe that a violation of the Iowa statute had occurred. See Alvarado , 430 F.3d 1305, 1309; cf. Washington , 455 F.3d at 828 (noting that where there is a basis in state law for an officer’s actions and some ambiguity exists that caused the officer to make the mist ake, it may still be objectively reasonable). 3 We recognize that this is a relativ ely close question, but we believe that-9- based on what he reasonably kne w at the time of the stop, Smart , 393 F.3d at 770, Faiferlick “could have formed” a reasonabl e suspicion that Herrera-Gonzales had committed a traffic violation, Martin , 411 F.3d at 1001. Accordingly, we conclude that the traffic stop was lawful.

However, even if the traffic stop were not lawful, Herrera-Gonzalez’s consent was sufficient to purge the taint of the stop. We review this issue de novo. United States v. Simpson , 439 F.3d 490, 494-95 (8th Cir. 2006). Even if a traffic stop is determined to be invalid, subsequent voluntary consent to a search may purge the taint of the illegal stop if it was given in circum stances that render it an independent, lawful cause of the officer’s discovery. United States v. Becker , 333 F.3d 858, 861-62 (8th Cir. 2003); United States v. Kreisel , 210 F.3d 868, 869 (8th Cir. 2000) (noting that in order to purge the taint of an illegal stop, the consent must be “sufficiently an act of free will”). To determine whether suffici ent attenuation between the unlawful act and the consent exists, “we consider the follo wing factors: (1) the temporal proximity between the illegal search or seizure and th e consent; (2) the pres ence of intervening circumstances; and (3) the purpose and fl agrancy of the official misconduct.” Becker , 333 F.3d at 862. The determination is ma de by carefully weighing the facts of each case, and no single fact is dispositive. United States v. Ramos , 42 F.3d 1160, 1164 (8th Cir. 1994). However, the purpose and fl agrancy of the official misconduct is “the most important factor because it is direc tly tied to the purpose of the exclusionary rule—deterring police misconduct.” Simpson , 439 F.3d at 496.

The Government argues that the length of time between the traffic stop and Herrera-Gonzalez’s later affirmation of his consent was more than sufficient for this factor to weigh in the Government’s favor . However, the Government focuses on the wrong time frame. The record does not support the conclusion that the subsequent affirmation of the consent was an additional or second consent to search. Rather, it was merely an affirmance thatthe original consent had b een given, and the proximity of an affirmance does not aid in determin ing whether the original consent was an-10- independent act of free will. Cf. United States v. Moreno , 280 F.3d 898, 901 (8th Cir. 2002) (noting that the “considerable” passage of time between the illegal stop, which was immediately followed by consent, and th e appellant’s subseque nt consent to have his vehicle searched a second time reflected that the appellant’s consent was an act of free will where the second consen t was to a new search, not an affirmance that consent was given to the initial search).

In assessing the temporal proximity f actor, we focus on the time between the illegal stop and Herrera-Gonzales ’s initial consent to search . As the district court correctly noted, this time frame is not clear from the reco rd. Nevertheless, HerreraGonzalez concedes in his appellate brief— and the record and the district court’s conclusions support the concession—that the initial consent was given within 10 to 15 minutes of the stop. While 10 minutes does not in itself suggest sufficient attenuation to purge the taint of the stop, neither does it compel the conclusion that the attenuation was insufficient. Indeed, this court has found consen t given a short time after the stop sufficient to purge the taint if other circumstances indicate the consent was sufficiently an act of free will. See United States v. Palacios-Suarez , 149 F.3d 770, 772-73 (8th Cir. 1998) (holding that consent was sufficiently an act of free will to purge the taint of the initial stop where the officer asked the defendant several times if he could search the vehicle nine minutes after the initial stop); Ramos , 42 F.3d at 1164 (finding consent sufficient to purge the taint where the arrest and consent were “close in time”). Thus, even assuming Herrera-Gonzalez’s consent was given only 10 minutes after the initial stop, that fact alone does not compel the conclusion that the consent was insufficient to purge the tain t. We now turn to the second and third factors.

With regard to intervening circumstances , the district court noted that the fact that Faiferlick declined Herrera-Gonzalez’s offer to retrieve the documents from his vehicle and instead requested consent to search suggested continuity between the4 The district court correctly noted thatFaiferlick was not required to inform Herrera-Gonzalez that he may refuse to consent. Palacios-Suarez , 149 F.3d at 773.

-11- illegal stop and the consent. 4We fail to see how these facts necessarily indicate the absence of intervening circumstances.

Faiferlick testified that subsequent to his decision to initiate the traffic stop but prior to his request for consent, he wa s unable to verify Herrera-Gonzalez’s license plates or driver’s license. We have found sufficient intervening circumstances in analogous situations where prior to requesting consent, officers observed circumstances that justified seeking consent. For example, in Becker , after an allegedly illegal stop, officer s continued to detain the defendant because they were concerned that he might be under the influence of controlled substances. Becker , 333 F.3d at 860. The defendant then consented to a search of his person that revealed illegal drugs. Id. This court noted that Becker ha d not been informed that he could refuse to consent but nonethel ess concluded that the offi cers’ concern about whether Becker was under the influence of narcotics was a sufficient intervening circumstance to purge the taint of the illegal stop. Id. at 862. In United States v. Thomas , after stopping travelers in a rental car and in specting the driver’s license and rental agreement, the officer noti ced that there was a 2700-mile difference between the car’s checkout mileage and the mileage on the odometer. 83 F.3d 259, 259 (8th Cir. 1996). Because the driver was only 400 miles from wher e he rented the car, the officer asked the driver to accompany him to his patrol car and asked fo r consent to search the car. This court found these facts sufficient to give the officer “some suspicion” that criminal activity was afoot and to support the conclusion that the consent was sufficient to purge the taint of the allegedly illegal stop. Id. at 260. We believe the difficulty Faiferlick had in verifying Herrera-Gonzalez’s plates and identity constituted intervening circumstances that support a conclusion that HerreraGonzalez’s consent to the search was an i ndependent act of free will. We turn now5 We also note that this court has found c onsent sufficient to purge the taint even in the absence of intervening circumstances where the circumstan ces suggest that the officer was not trying to exploit an illegal situation and his conduct was in good faith. Ramos , 42 F.3d at 1164. As the following di scussion explains, we see no evidence in the record that Faiferlick was trying to exploit an illegal situation or that his conduct was in bad faith.

-12- to the most important factor in our analys is: the purpose and flagrancy of Faiferlick’s alleged misconduct. 5

“Courts have found purposeful and flagrant conduct where: (1) the impropriety of the official’s misconduct was obvious or the official knew, at the time, that his conduct was likely unconstitutional but enga ged in it nevertheless; and (2) the misconduct was investigatory in design and purpose and executed ‘in the hope that something might turn up.’” Simpson , 439 F.3d at 496 (quoting Brown v. Illinois , 422 U.S. 590, 605 (1975)). We find no evidence in the record that Faiferlick engaged in misconduct, much less flagrant misconduct. The district court concluded that the unreasonableness of the stop and the request for consent to search “where the only perceived violation was the crossing of the fog line” suggested a quality of purposefulness and investigatory design in Faiferlick’s conduct. We disagree. As discussed above, this stop was objectively reasonable. But even assuming the stop was unreasonable, that unreasonableness its elf does not suggest that Faiferlick’s conduct was obviously improper or flagrant, or that he knew it was likely unconstitutional. An unreasonable mistake alone is not sufficient to establish flagrant misconduct. See, e.g. , id. (holding that an officer’s erroneous belief that he was arresting the correct person was not suffi cient misconduct to require suppression of post-arrest statements and bullets obtaine d from arrestee’s person; an “unreasonable mistake of fact . . . does not constitute the type of blatantly unconstitutional or flagrant behavior condemned in Brown ”); Kreisel , 210 F.3d at 869-70 (holding, where officers arguably made a mistake regarding the appli cability of a motor vehicle regulation, that consent was sufficient to purge the taint where nothing in the record supported a-13- conclusion that the police purposefully engaged in misc onduct and where the unlawfulness was “certainly not flagrant”); Ramos , 42 F.3d at 1164 (holding that consent was sufficient to purge the taint wh ere the arrest and consent were close in time and there were no intervening circum stances, but the officer’s conduct was in good faith and the Terryviolation was not flagrant).

We also disagree with the district c ourt’s conclusion that Faiferlick’s actions suggested an impermissible investigatory design. We believe the crux of the district court’s error was in concl uding that Faiferlick’s questi oning and request for consent to search was unjustified because it was based solely on a fog-line crossing and, therefore, suggested misconduct. At th e time of the questioning and request for consent, the difficulty in verifying the plat es and driver’s licensehad given Faiferlick a reason to be suspicious. Nothing in the record suggests that Faiferlick had an investigatory purpose prior to discovering problems with the plates and license or prior to the stop which constituted the alle ged misconduct. There is no evidence that the stop was designed to “turn something up, ” that Faiferlick acted in bad faith in asking for consent to search, or that Faif erlick was attempting to exploit an illegal situation. Ramos , 42 F.3d at 1164. If Faiferlick wa s seeking to exploit an illegal situation, we doubt he would have called Infante in an effort to verify that consent had been given and to ensure thathe had a record that Herre ra-Gonzalez had been read his Miranda rights.

Given our conclusion that there was no misconduct (and even if there was, it was certainly not flagrant, see Kreisel , 210 F.3d at 870), and the particular importance of the misconduct prong to our analysis, we conclude that Herrera-Gonzales’s voluntary consent to the search of his vehi cle was sufficiently an act of free will to purge the taint of the allegedly illegal stop.-14- III. CONCLUSION

We hold that the district court erred in concluding that the traffic stop was unlawful. However, even if the stop were unlawful, Herre ra-Gonzalez’s voluntary consent was sufficient to purge the taint of the stop. Accordingly, the evidence discovered by the cons ented-to search was not made inadmissible by the Fourth Amendment. We therefore reverse the di strict court's grant of Herrera-Gonzalez's motion to suppress, vacate the suppression order, and remand for further proceedings consistent with this opinion.

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