* After examining the briefs and the appellate reco rd, this three-judge

panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 17 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. YGNACIO D. ZABALZA,

Defendant - Appellant. No. 02-3403

APPEAL FROM THE DISTRICT COURT FOR THE

DISTRICT OF KANSAS D. Ct. No. 02-CR-10010-WEB

Submitted on the briefs: * Paul S. McCausland, Young, Bogle, McCausland, Wells & Blanchard, P.A., Wichita, Kansas, for Appellant. Eric F. Melgren, United States Attorney, and Brent I. Anderson, Assistant United States Attorney, Office of the United States Attorn ey, Wichita, Kansas, for Appellee.

Before TACHA , Chief Circuit Judge, EBEL , and BRISCOE Circuit Judges.- 2 -

TACHA, Chief Circuit Judge.

On August 27, 2002, Defendant-Appellant, Ygnacio D. Zabalza, entered a conditional guilty plea to possession of approximat ely 250 pounds of marijuana with the intent to distribute, in violation of 21 U .S.C. § 841(a)(1), reserving his right to appeal the district court’s denial of his motion to suppress. Defendant filed a timely notice of appeal. We exercise juris diction pursuant to 28 U.S.C. § 1291 and AFFIRM. I. Background On January 26, 2002, Kansas Highway Patrol SergeantTerry Kummer was traveling eastbound on Interstate 70 when he came upon a late-model blue Mercury Marquis. The Marquis was in the right-handlane, traveling slower than Sergeant Kummer, so Sergeant Kummer moved to the le ft-hand lane. While following the vehicle, Sergeant Kummer observed it twice cross over the center line of the lane in which it was traveling. Sergea nt Kummer stopped the vehicle for failing to maintain a single lane of traffic. According to Sergeant Kummer, the weather on this particular day was overcast wit h some wind, but, in his judgment, the weather would not have made it imprac ticable for a driver to maintain a single lane of travel. Sergeant Kummer had no difficulty maintaining a single lane and had not seen other drivers having difficulty.1 The district court found Sergeant Kummer’s testimo ny credible.

Specifically, the district court stated: [T]he court finds credible the officer’s testimony that he observed what appeared to be a traffic violation when the de fendant’s car twice crossed over the lane line and that he decide d to stop the car for that reason. The court rejects as unsupported by any credible evidence the suggestion that Sgt. Kummer stopped th e defendant in the absence of probable cause. Sgt. Kummer’s testi mony that he observed a violation was not only credible; it was essentially uncontradicted. Dist. Ct. Op. at 9. - 3 - Sergeant Kummer approached the driver’s side of the vehicle and spoke with its only occupant, Defendant Zabalza. Sergean t Kummer told Zabalza that he was just making sure that Zabalza was not sleepyand asked to see Zabalza’s license. Zabalza produced an Arizona driver’s lice nse. Sergeant Kummer testified at the suppression hearing that when he b egan talking to Zabalza he detected a “moderate to strong odor” of raw marijua na coming from the car and that he had no doubt there was marijuana in the car

. 1 After a brief exchange between Sergeant Kummer and Zabalza, Sergeant Kumme r opened the trunk and found numerous large brick-shaped packages in brownwrapping containing marijuana. II. Discussion A. Standard of Review When reviewing a district court’s denial of a motio n to suppress, we defer2 In several published and unpublished cases we hav e written that we

review a district court’s denial of a motion to sup press under a clear error standard. See, e.g. , United States v. Vargas , 57 Fed. Appx. 394, 397 (10th Cir. 2003). This does not, however, accurately express our standard of review in such cases. Rather, as we clarify today, when reviewing a denial of a motion to suppress, we review only a district court’s factual determinations under a clear error standard. We trace the genesis of this language to our opinio n in United States v. Soto , 988 F.2d 1548, 1551 (10th Cir. 1993). Because we find that Soto , and often its progeny, state our standard of review in an imp recise fashion, we take this opportunity to clarify the standard that we employ in such cases. See Barber v. T.D. Williamson, Inc. , 254 F.3d 1223, 1229 (10th Cir. 2001) (noting thatwhereas a panel lacks authority to overrule earlier cases, it is within its authority to clarify such cases). To be clear, this clarification does not alter the law of this circuit. Rather, it merely clarifies the standard of review that we in fact employed in Soto and its progeny. Accordingly, we leave those rulin gs undisturbed. - 4 - to the district court’s findings of fact unless the y are clearly erroneous. 2 United
States v. Horn , 970 F.2d 728, 730 (10th Cir. 1992). In conductin g our review, we consider the evidence in the light most favorable t o the district court’s ruling. Id

. (citations omitted). We review de novo , however, the ultimate determination of reasonableness under the Fourth Amendment. Id. (citations omitted). B. Whether Sergeant Kummer’s Search of Zabalza’s Veh icle and Seizure of the Marijuana Was Constitutional Under t he Fourth Amendment In reviewing the constitutionality of traffic stops under the Fourth Amendment, we conduct a two-step inquiry. First, w e must determine “whether the officer’s action was justified at its inception .” United States v. Gonzalez-- 5 -

Lerma , 14 F.3d 1479, 1483 (10th Cir. 1994). Second, we must consider “whether the action was reasonably related in scope to the c ircumstances that first justified the interference.” Id.

i. The initial traffic stop “[A] detaining officer must have an objectively reasonable articulable suspicion that a traffic violation has occurred or is occurring before stopping [an] automobile.” Soto , 988 F.2d at 1554 (citation omitted). When evaluating the reasonableness of the initial stop, “[o]ur sole inq uiry is whether this particular officer had reasonable suspicion that this particul ar motorist violated ‘any one of the multitude of applicable traffic and equipment r egulations’ of the jurisdiction.” United States v. Botero-Ospina , 71 F.3d 783, 787 (10th Cir. 1995) (citation omitted). The applicable Kansas statute, K.S.A. § 8-1522(a), provides that “[w]henever any roadway has been divided into two ( 2) or more clearly marked lanes for traffic, . . . vehicle[s] shall be driven as nearly as practicable entirely within a single lane.” Because he witnessed Zabal za’s vehicle cross the center line twice, Sergeant Kummer had more than the necessary objec tively reasonable, articulable suspicion that Zabalza had committed a traffic violation. Compare United States v. Ozbirn , 189 F.3d 1194, 1198 (10th Cir. 1999) (“[Officer] had probable cause to stop [defendant] after he saw the motor home drift onto the shoulder twice within a quarter mile under optimal road, weather and traffic- 6 -

conditions.”), with United States v. Gregory , 79 F.3d 973, 978 (10th Cir. 1996) (finding no reasonable suspicion based on “isolatedincident of a vehicle crossing into the emergency lane of a roadway . . . . [where ] road was winding, the terrain mountainous and the weather condition was windy”) ( citations omitted). Alternatively, at a minimum, Sergeant Kummer’s obse rvations were “sufficient to create a reasonable suspicion that [Zabalza] might be sleepy or impaired, and could present a risk of harm to himself and others. ” Ozbirn , 189 F.3d at 1199 (citing cases). Based on the above, we conclude that Sergeant Kumme r’s initial stop of Zabalza was reasonable under the Fourth Amendment. See Ozbirn , 189 F.3d at
1198-99. ii. The investigative detention and subsequent search o f the trunk “During a routine traffic stop, the detaining offic er may request a driver’s license and vehicle registration, run a computer ch eck on the car and driver, and issue a citation.” Soto , 988 F.2d at 1554 (citations omitted). The detain ing officer may also question the vehicle’s occupants r egarding their identities, travel plans, and ownership of the vehicle. United States v. Rivera , 867 F.2d 1261, 1263 (10th Cir. 1989). Once an officer has complet ed a traffic stop, “‘[i]f the driver produces a valid license and proof of right to operate the vehicle, the officer must allow him to continue on his way witho ut delay for further3 See supranote 1. - 7 -

questioning.’” Soto , 988 F.2d at 1554 (quoting United States v. Pena , 920 F.2d 1509, 1514 (10th Cir. 1990), cert. denied, 501 U.S. 1207 (1991)). However, [f]urther questioning is permissible in two circums tances. First, the officer may detain the driver for questioning unrel ated to the initial traffic stop if he has an objectively reasonable an d articulable suspicion that illegal activity has occurred or is occurring. Second, further questioning is permissible if the initial d etention has become a consensual encounter. Gonzalez-Lerma , 14 F.3d at 1483. In this case, the district court found credible Ser geant Kummer’s testimony that when he first began talking to Zabalza he dete cted a “moderate to strong odor” of marijuana coming from the vehicle. 3 “Determinations of witness credibility [are] review[ed] for clear error.” United States v. McRae , 81 F.3d 1528, 1533 (10th Cir. 1996). While Zabalza speculates in his brief that Sergeant Kummer might not have actually detected the odor of raw marijuana emanating from the vehicle at the inception of the stop, noth ing in the record contradicts Sergeant Kummer’s testimony on that point. Because it is not clearly erroneous, we accept the district court’s determination that S ergeant Kummer’s testimony was credible. An officer’s detection of the smell of drugs in a v ehicle is entitled to substantial weight in the probable cause analysis. United States v. West , 219 F.3d 1171, 1178 (10th Cir. 2000). “This court has long recognized that marijuana has4 Because we find that Sergeant Kummer’s detection of the odor of

marijuana emanating from the car at the inception o f the stop established probable cause, we necessarily find that Sergeant Kummer’s c ontinued questioning of Zabalza was proper. This finding, in turn, eliminates the need for this court to consider whether Zabalza’s consent was voluntary. - 8 - a distinct smell and that the odor of marijuana alo ne can satisfy the probable cause requirement to search a vehicle or baggage.” United States v. Morin , 949 F.2d 297, 300 (10th Cir. 1991) (citing cases); see also United States v. VasquezCastillo , 258 F.3d 1207, 1212-13 (10th Cir. 2001) (holding that the smell of marijuana and irregularities in the trailer and log books of commercial truck created probable cause); United States v. Ozbirn , 189 F.3d 1194, 1200 (10th Cir. 1999) (holding that officer’s detection of the smel l of marijuana was sufficient grounds upon which to detain suspect). Thus, Serge ant Kummer’s search of the trunk was supported by probable cause. 4
III. Conclusion Based on the foregoing, we AFFIRM the district court’s denial of Zabalza’s motion to suppress and AFFIRM his conviction under 21 U.S.C. § 841(a)(1).