*

 After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would 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 submitted 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 Attorney, Wichita, Kansas, for

Appellee.

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

On August 27, 2002, Defendant-Appellant, Ygnacio D. Zabalza, entered a

conditional guilty plea to possession of approximately 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 jurisdiction pursuant to 28 U.S.C.

§ 1291 and AFFIRM.

I. Background

On January 26, 2002, Kansas Highway Patrol Sergeant Terry Kummer was

traveling eastbound on Interstate 70 when he came upon a late-model blue

Mercury Marquis. The Marquis was in the right-hand lane, traveling slower than

Sergeant Kummer, so Sergeant Kummer moved to the left-hand lane. While

following the vehicle, Sergeant Kummer observed it twice cross over the center

line of the lane in which it was traveling. Sergeant 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 with some wind, but, in his

judgment, the weather would not have made it impracticable 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 testimony 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 defendant’s car

twice crossed over the lane line and that he decided to stop the car

for that reason. The court rejects as unsupported by any credible

evidence the suggestion that Sgt. Kummer stopped the defendant in

the absence of probable cause. Sgt. Kummer’s testimony that he

observed a violation was not only credible; it was essentially

uncontradicted.

Dist. Ct. Op. at 9.

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Sergeant Kummer approached the driver’s side of the vehicle and spoke

with its only occupant, Defendant Zabalza. Sergeant Kummer told Zabalza that

he was just making sure that Zabalza was not sleepy and asked to see Zabalza’s

license. Zabalza produced an Arizona driver’s license. Sergeant Kummer

testified at the suppression hearing that when he began talking to Zabalza he

detected a “moderate to strong odor” of raw marijuana 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 Kummer opened the trunk and

found numerous large brick-shaped packages in brown wrapping containing

marijuana.

II. Discussion

A. Standard of Review

When reviewing a district court’s denial of a motion to suppress, we defer
2

 In several published and unpublished cases we have written that we

review a district court’s denial of a motion to suppress 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 opinion 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 imprecise 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 that whereas

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 rulings undisturbed.

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to the district court’s findings of fact unless they are clearly erroneous.2 United

States v. Horn, 970 F.2d 728, 730 (10th Cir. 1992). In conducting our review, we

consider the evidence in the light most favorable to 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 Vehicle and

Seizure of the Marijuana Was Constitutional Under the Fourth

Amendment

In reviewing the constitutionality of traffic stops under the Fourth

Amendment, we conduct a two-step inquiry. First, we must determine “whether

the officer’s action was justified at its inception.” United States v. Gonzalez-
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Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994). Second, we must consider “whether

the action was reasonably related in scope to the circumstances 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 inquiry is whether this particular

officer had reasonable suspicion that this particular motorist violated ‘any one of

the multitude of applicable traffic and equipment regulations’ 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 Zabalza’s vehicle cross the center

line twice, Sergeant Kummer had more than the necessary objectively 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
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conditions.”), with United States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996)

(finding no reasonable suspicion based on “isolated incident 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 observations 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 Kummer’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 of the trunk

“During a routine traffic stop, the detaining officer may request a driver’s

license and vehicle registration, run a computer check on the car and driver, and

issue a citation.” Soto, 988 F.2d at 1554 (citations omitted). The detaining

officer may also question the vehicle’s occupants regarding 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 completed 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 without delay for further
3

See supra note 1.

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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 circumstances. First, the

officer may detain the driver for questioning unrelated to the initial

traffic stop if he has an objectively reasonable and articulable

suspicion that illegal activity has occurred or is occurring. Second,

further questioning is permissible if the initial detention has become

a consensual encounter. Gonzalez-Lerma, 14 F.3d at 1483. 

In this case, the district court found credible Sergeant Kummer’s testimony

that when he first began talking to Zabalza he detected 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, nothing 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 Sergeant Kummer’s testimony

was credible.

An officer’s detection of the smell of drugs in a vehicle 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 has
4

 Because we find that Sergeant Kummer’s detection of the odor of

marijuana emanating from the car at the inception of the stop established probable

cause, we necessarily find that Sergeant Kummer’s continued questioning of

Zabalza was proper. This finding, in turn, eliminates the need for this court to

consider whether Zabalza’s consent was voluntary. 

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a distinct smell and that the odor of marijuana alone 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 smell of marijuana was sufficient

grounds upon which to detain suspect). Thus, Sergeant 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).