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

### NOV 21 2003 

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

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 02-3418 TIMOTHY JAY CLINE, a/k/a Pony,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. NO. 00-CR-40024-03-SAC)

Daniel E. Monnat, Monnat & Spurrier, Chtd., Wichita , Kansas, for DefendantAppellant. Anthony W. Mattivi, Assistant United States Attorne y (Eric F. Melgren, United States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

Before SEYMOUR , Circuit Judge, and ANDERSON and BRORBY , Senior Circuit Judges.

ANDERSON , Circuit Judge.-2-

Timothy J. Cline was convicted following a seven we ek jury trial on the following counts: conspiracy to manufacture more than one kilogram of methamphetamine, in violation of 21 U.S.C. § 846 (c ount 1); three counts of distribution of varying amounts of pseudoephedrine, in violation of 21 U.S.C. § 841(d)(2) (counts 2, 3, and 4); distribution of approximately two kilograms of pseudoephedrine, in violation of 21 U.S.C. § 841(d) (2) (count 5); two counts of knowingly and intentionally using, or causing to be used, a communication facility or communication facilities in facilitatin g a drug trafficking offense, in violation of 21 U.S.C. § 843(b) (counts 7 and 8); three counts of distribution of varying amounts of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (counts 12, 13 and 14); and two counts of possessio n with intent to distribute varying amounts of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (counts 15 and 23). He was sentenced to 360 months imprisonment and five years of supervised release, and directed to pay a $1200 assessment. Cline’s motions to suppress evidence, seized pursuant to a series of wiretaps, during a traffic stop, and during a searc h of his house, were denied. Additionally, his motion for judgment of acquittal or, in the alternative, for a new trial was denied. He appeals the denial of those m otions. We affirm.-3- BACKGROUND Federal law enforcement authorities first became interested in Cline in 1994 when agents from the Internal Revenue Service and the Drug Enforcement Agency (“DEA”) noticed that Cline and his wife, Jan et Cline, had made an unexplained expenditure of some $500,000 in cash. While investigating this matter, agents executed a search warrant of the Cli nes’ house but found nothing incriminating. No criminal charges were ever filed

. Federal authorities briefly investigated Cline agai n in 1997 after arresting Anthony Fracasso, who admitted to producing methamp hetamine, but again were unable to develop sufficient evidence to file charg es against Cline. In 1998 and 1999, agents from the DEA and the Kansas Bureau of Investigation began an investigation into a large drug trafficking organiz ation in the tri-state area of southeast Kansas, southwest Missouri and northeast Oklahoma. One focus of the investigation was a motorcycle store, Biker’s Dream , owned and operated by Cline. Agents suspected that Biker’s Dream was the source of large quantities of pseudoephedrine, a precursor chemical for the produ ction of methamphetamine. They further suspected that Shane Wright was a meth amphetamine cook and dealer and that Wright and Cline were associated in a methamphetamine1 Much of the evidence against Cline at his trial cam e from Wright and his

wife, Tracy, who pleaded guilty to conspiracy to ma nufacture and distribute methamphetamine and testified against Cline. -4- production and distribution ring. 1 Facts generally outlining the course of the investigation are set out below, with greater detai l supplied in connection with the discussion of specific issues. Investigators used court-authorized wiretaps as part of their investigation into the Wright-Cline methamphetamine organization. Accordingly, they monitored five separate telephone lines, including the business telephone line for Biker’s Dream and the residential telephone line of Cline and his wife, as well as Wright and others. Further details regarding the i nformation presented in the affidavits submitted in support of the applications for the wiretaps will be discussed in connection with Cline’s arguments about the wiretaps. Another tactic the agents investigating the Wright- Cline methamphetamine organization used was to conduct traffic stops base d in part upon information gleaned from the wiretaps. One such stop involved Cline, in which, based on information obtained in a wiretapped phone conversation, a DEA agent and a state trooper followed Cline’s truck for several miles ona windy day, at which time they observed his truck swerve once onto the should er of the road, nearly hitting a bridge railing. They subsequently pulled his truckover for the observed traffic violation and, after obtaining consent to search it , discovered some 16,000-5-

pseudoephedrine tablets. Further factual details c oncerning the stop will be discussed in connection with Cline’s argument about the validity of the traffic stop and the subsequent seizure of the pills. Subsequently, on March 27, 2000, agents executed a search warrant at Cline’s home, during which they found numerous fire arms around the house, some loaded, and some small amounts of drugs. Clin e was arrested at that time. Further factual details concerning the execution of the warrant will be discussed in connection with Cline’s arguments about the vali dity of the execution of the

warrant. Prior to trial, Cline’s counsel filed a motion in limine seeking to prevent the government from presenting, inter alia, any evidenc e regarding Cline and his wife’s pending divorce and Cline’s young girlfriend . When the government informed the court that it did not intend to offer any such evidence, the court denied the motion as moot. The court added, “Nor s hall the government otherwise refer to or mention this evidence before the jury panel or jury without first approaching the bench.” R. Vol. 8, tab 1310 at 19. At trial, the government questioned a witness regarding Cline’s girlfriend and elicited testimony about her age without first obtaining the court’s approval. The court overruled Cline’s objection to that testimony. Following the jury’s guilty verdict, Cline filed a motion for acquittal or, alternatively, for a new t rial, contending that the-6-

government’s violation of the in limine order was prosecutorial misconduct warranting a new trial. Further details about the circumstances surrounding this incident will be discussed in connection with Cline ’s argument about this issue. Cline argues (1) the district court erred in refusi ng to suppress evidence improperly obtained through the use of wiretaps bec ause (a) the wiretaps were obtained without an adequate showing of necessity and (b) the government failed to timely seal the tapes of the calls intercepted o n Cline’s home telephone; (2) the district court erred in refusing to suppress eviden ce obtained following the allegedly unlawful traffic stop of Cline because (a ) when Cline was pulled over for drifting once onto the shoulder on a windy day after being followed for several miles by a trooper, the stop was not justif ied at its inception; (b) the detention, while officers discussed how to proceed with their drug investigation, exceeded the permissible scope of the traffic stop; and (c) Cline’s consent to search, given immediately following the unlawful st op and detention, was tainted and therefore not voluntary; (3) the district courterred in refusing to suppress evidence seized following the execution of the sear ch warrant at Cline’s home when officers broke down the door without giving th e Clines sufficient time to admit the officers; and (4) the government committe d misconduct by presenting testimony about Cline’s girlfriend in violation of the court’s in limine order and-7-

the court erred in overruling Cline’s objection to the evidence and in denying his motion for a new trial.

DISCUSSION I. Suppression of Evidence Obtained Through Wireta ps A. Adequacy of Showing of Necessity Cline argues first that the wiretaps on the phones at his business and his home and on Wright’s home were obtained without an adequate showing of necessity. The district court denied his motion to suppress evidence obtained by means of those wiretaps, concluding that the govern ment had adequately demonstrated necessity. “We review for an abuse of discretion a district court’sdetermination that a wiretap was necessary.” United States v. RamirezEncarnacion , 291 F.3d 1219, 1222 (10th Cir. 2002). Further, “ [a] defendant bears the burden of proving that a wiretap is invalid once it has been authorized.” Id. If a defendant succeeds in showing that the necessi ty requirement was not met, evidence seized pursuant to the wiretap must be suppressed. Id. By statute, an application for a wiretap order mustcontain a “full and complete statement as to whether or not other inves tigative procedures have been tried and failed or why they reasonably appear to b e unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c). The authorizing judge must-8-

similarly find that “normal investigative procedure s have been tried and have failed or reasonably appear to be unlikely to succe ed if tried or to be too dangerous” in order to meet the necessity requireme nt. 18 U.S.C. § 2518(3)(c); see also Ramirez-Encarnacion , 291 F.3d at 1222. Such traditional investigative techniques include “ (1) standard visual and aural surveillance; (2) questioning and interrogati on of witnesses or participants (including the use of grand juries and the grant of immunity if necessary); (3) use of search warrants; and (4) infiltration of conspir atorial groups by undercover agents or informants.” United States v. VanMeter , 278 F.3d 1156, 1163-64 (10th Cir. 2002) (quoting United States v. Castillo-Garcia , 117 F.3d 1179, 1187 (10th Cir. 1997), overruled on other grounds by United States v. Ramirez-Encarnacion , 291 F.3d 1219 (10th Cir. 2002) (en banc n.1)). Oth er traditional techniques include pen registers and trap and trace devices. See Ramirez-Encarnacion , 291 F.3d at 1222 n.2. If it has not tried those traditional techniques, t he government must explain that failure with particularity. Id. at 1222; see also United States v. Mitchell , 274 F.3d 1307, 1310 (10th Cir. 2001). “[G]eneralities, or statements in the conclusory language of the statute, are insufficient to support a wiretap application. The statements must be factual in nature and they must specifically relate to the individuals targeted by the wiretap.” Castillo-Garcia , 117 F.3d at 1188.2 There were three applications for three monitoring periods on the Wrights’

house (Line A), one application for a cell phone re gistered to Miste Alartosky (Line B), two applications for cell phones register ed to Johnny Wright (Line C), one application for the business telephone at Biker ’s Dream (Line D) and one application for the Clines’ home telephone (Line E)

. -9- However, we “consider all the facts and circumstanc es . . . and read the necessity requirement in a common sense fashion.” Ramirez-Encarnacion , 291 F.3d at 1222 (internal quotations and citations omitted). Cline argues that the language in the applications for the wiretaps on the phones in his home and his business as well as in the Wright home were conclusory and failed to adequately demonstrate nec essity as to him. He asserts that “[t]he facts set forth in the applications and affidavits showed either that the normal investigative techniques that were undertake n were effective or that they had not been tried prior to seeking the wiretaps.” Appellant’s Br. at 11. Eight applications were filed in this case, seeking authorization to intercept wire communications on five separate telephone lines. 2 Cline argues he was one of the individuals targeted by the wiretaps on the Wright residence telephone (Line A), the Biker’s Dream phone (Line D) and his own home telephone (Line E). Senior Judge Richard Rogers of the United Stat es District Court for the District of Kansas signed the orders authorizing an d extending the interception of the wire communications on four of the five lines ( Lines A-D), and Judge Sven-10-

Holmes of the United States District Court for the Northern District of Oklahoma signed the order authorizing the interception of th e fifth line (Line E). The Wright wiretap was obtained first. Cline argue s that the affidavit of DEA agent Robert Ryan in support of the original ap plication for the Wright wiretap only cursorily recites prior efforts to inf iltrate the organization and the use of ordinary investigative techniques like telep hone records, pen registers, background checks, general questioning, informants, physical surveillance, and search warrants, and only mentions Cline by name once. See R. Vol. 83, doc. 628, tab 4. He argues that subsequent affidavits s ubmitted in support of the government’s applications for extensions of the wir etap on Wright’s telephone, as well as the application for wiretaps on Cline’s ownresidence and on the Biker’s Dream, suffered from the same deficiencies. We dis agree with all his arguments. Because all the challenged affidavits are very simi lar, we will address them collectively, pointing out, where necessary, any di fferences between them. The affidavits in support of the applications recit ed the “use and exhaustion of normal investigative techniques,” including “[i] nfiltration by undercover officers,” “[r]eview of telephone records, includin g pen register results,” “[r]eview of general background and police records of suspected traffickers,” “[g]eneral questioning, with or without grants of i mmunity,” “[u]se of informants,” “[p]hysical surveillance,” “[s]earch w arrants,” and “[w]ire3 Cline was a member and president of the Loners Moto rcycle Gang. -11- intercepts.” R. Vol. 84, doc. 629, tab 7, ¶ 76 (Bi ker’s Dream Wiretap App.), tab 8, ¶ 81 (Cline Residence Wiretap App.), R. Vol. 83, doc. 628, tab 4, ¶ 73 (Wright Residence Wiretap App.). The affidavits explained how infiltration by undercover agents had been unsuccessful because mos t members of the organization had lived in the same area for years, had known each other for years, and were suspicious of anyone new. Further, the a ffidavits stated that the investigation revealed that Wright kept his subordi nates separate so that they did not always know each other’s identity or know what other members of the organization were doing. The affidavits recited th e investigation’s limited success with the three cooperating individuals the agents had used thus far and that [t]o date, no successful undercover activity has be en mounted directly with Tim CLINE. CLINE is very careful to protect himself from this type of activity by dealing only with tru sted members of his organization. From training and experience, this a ffiant knows that members of organized ‘outlaw’ motorcycle gangs are very paranoid and protective o[f] their organizations and activit ies. R. Vol. 84, doc. 629, tab 7, ¶ 80. 3 The affidavits recounted the use of pen register in formation in the investigation, but stated that such information was limited in its usefulness because it did not reveal the identities of the parties to the conversation nor the-12-

nature or substance of the conversation, nor differ entiate between legitimate calls and those for criminal purposes. For example, “penregister information has established that Tim CLINE utilizes the target tele phones to make contact with other members of the LONERS MOTORCYCLE GANG, but th e exact nature of the conversations cannot be known without the use of wire intercept.” Id. , ¶ 81. The affidavits further detailed that while some coo perating individuals had been interviewed, further questioning of individual s was unlikely to prove fruitful. A number of individuals involved in the drug organization had histories of violence. Several murders were believed by thos e close to the organization to be related to the organization’s drug activity. Se veral individuals had indicated that, while they had provided some confidential inf ormation, they would refuse to testify because of fear for their safety. Similarly, the supporting affidavits recounted that“[r]eliable confidential informants and cooperating sources have been identi fied and developed by your Affiant . . . in regard to this investigation.” Id. , ¶ 87; R. Vol. 83, doc. 628, tab 4, ¶ 84. However, the organization revealed itself to be “compartmentalized” and “close-natured.” Id. The affidavits revealed the use of three cooperat ing individuals who had some degree of success in infil trating the organization but whose future usefulness was virtually nil. The fir st cooperating individual was, at the time of the application, suspected of being an informant and was not able to-13-

make further contact with any members of the drug o rganization. The second individual was incarcerated on an unrelated charge, and the third individual had apparently ceased to cooperate and had in fact gone back to working with the drug organization. The affidavits adequately establishe d that, due to the close-knit community, as well as the suspicious nature of thos e involved in the drug organization and the difficulty of introducing anyo ne new into it, the traditional investigative technique of informants had been trie d but was unlikely to meet with further success. The supporting affidavits also explained the agents ’ use of surveillance on numerous occasions of various places and subjects, primarily “the manufacturers and distributors of methamphetamine for this organi zation.” R. Vol. 84, doc. 629 tab 7, ¶ 89. They detailed the difficulties encoun tered in conducting surveillance in the rural area: the officers and their vehicles stood out among the locals; Wright and Cline used sophisticated counter-surveil lance techniques; members of the drug organization were familiar with and used b ack roads where surveillance was difficult or easily detected; surveillance of C line’s business was hampered by the fact that some suspects in the drug organizatio n were county employees and local business persons. The affidavits detailed the limited success obtaine d thus far by the use of search warrants. While they had resulted in the se izure of drugs and4 Cline appears to challenge only the timeliness of t he sealing of the tape of

the wiretap on his own residence, not the tapes of any other wiretaps. -14- methamphetamine laboratories and proceeds, they hadfailed to uncover the scope of the operations, or identify the sources of the p recursor chemicals, the methods of distribution, and other members of the conspirac y. In sum, we conclude that the district court did notabuse its discretion when it concluded that the government made an adequate s howing of necessity for the issuance of the wiretaps in question. Far from bei ng conclusory, the affidavits contain sufficient factual details explaining the t raditional investigative techniques used, and why any future use of them wou ld likely be fruitless. They sufficiently explain why the investigative techniqu es would be futile with respect to Cline, as well as other members of the organizat ion being investigated. Many of the problems the agents encountered investigatin g the drug organization were not unique to Cline, but applied to the entire orga nization and its structure, and so the failure to specifically name Cline repeatedly w as not fatal to the affidavits.

B. Sealing of Tapes Cline next argues the government failed to timely s eal the tapes of the calls intercepted on his home telephone. 4 The statute provides that “[i]mmediately upon the expiration of the period of the order [aut horizing the wiretap], or5 AUSA Litchfield did not accompany Agent Ryan on Mar ch 30 because he

was in trial, so another AUSA accompanied Agent Ryan when the tapes were sealed by Judge Holmes. See R. Vol. 9, doc. 748, attachs. E & F. -15- extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.” 18 U. S.C. § 2518(8)(a). The statute further provides that “[t]he presence of the seal p rovided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral , or electronic communication or evidence derived therefrom.” Id. The order authorizing the wiretap on Cline’s reside nce was issued on February 24, 2000. Telephone calls were intercepte d until March 23, 2000. On that same day, DEA agent Rob Ryan, who was the case agent and the wiretap administrator, contacted Assistant U.S. Attorney Al len Litchfield, who was supervising the Oklahoma wiretap. AUSA Litchfield, in turn, contacted the office of United States District Judge Holmes, who had authorized the wiretap on Cline’s residence, and stated that the tapes were available. Agent Ryan was told that, because of the judge’s schedule, Agent Ryan s hould appear before the judge on March 30, 2000. Agent Ryan and another AUSA didso, and, on March 30, the tapes were sealed by Judge Holmes. 5 Cline argues the one week delay is too long and the government has failed to adequately explain that delay, other than to ass ert that the judge was-16-

unavailable, and this court has never stated whethe r the issuing judge’s unavailability is a satisfactory explanation for su ch a delay. “By its clear language, Section 2518(8)(a) requires , as a prerequisite to the admissibility of a recording, that one of two crite ria be satisfied: either the recording must have been properly placed under seal , or the government must provide a ‘satisfactory explanation’ for its failur e to comply with the sealing requirement.” United States v. Gomez , 67 F.3d 1515, 1523 (10th Cir. 1995) (citing United States v. Ojeda Rios , 495 U.S. 257, 263 (1990)). If the government fails to comply with the statute, the recording and all evidence derived therefrom must be suppressed. Id. Thus, we must consider whether the presentation o f the recording for sealing was “immediate” within the me aning of § 2518(8)(a) and, if not, whether the government’s explanation of its de lay in presentation was “satisfactory” under the statute. We review those questions of statutory interpretation de novo. United States v. Maxwell , 25 F.3d 1389, 1394 (8th Cir. 1994); United States v. Rodriguez , 786 F.2d 472, 476 (2nd Cir. 1986). The government argues the recordings were immediate ly “made available” to the judge who issued the wiretap order (Judge Ho lmes) in the sense that the AUSA immediately contacted the judge and offered to appear at the judge’s convenience to present the recordings for sealing. Thus, the government argues, the fact that the recordings were in fact sealed, p ursuant to the judge’s directions,6 Agent Ryan’s report states that he was instructed t o appear before Judge

Holmes on “3-20–00.” As the government notes in it s brief, that is clearly a typographical error, as the date was 3-30-00, as Ag ent Ryan correctly notes elsewhere in his report. -17- some seven days later is irrelevant. We do not nee d to decide whether the statute requires that the government only make the recordin gs immediately available for sealing, regardless of when they are in fact sealed , or whether it requires immediate actual sealing. Even if the government f ailed to comply with the sealing requirement, we find that the government’s explanation for the seven-day delay before the tapes were sealed is reasonable. As indicated, once the wiretap terminated, the gove rnment immediately contacted the issuing judge to present the recordin gs for sealing. The judge informed Agent Ryan and AUSA Litchfield that, due t o the judge’s scheduling problems, the next available time for the governmen t to present the recordings would be in a week, and directed the AUSA to come b ack then. R. Vol. 9, doc. 748, attach. E. 6 While the government could have sought another ju dge to have the recordings sealed, there is no evidence of bad faith and no indication that the recordings were tampered with or that there was anytactical advantage gained by waiting the week to have Judge Holmes seal the tape s. Other courts have similarly accepted the issuing judge’s scheduling p roblems as an acceptable excuse for a delay. See United States v. McGuire , 307 F.3d 1192, 1204 (9th Cir.-18-

2002) (“As we have noted, ‘[t]he unavailability of the issuing or supervising judge may constitute a satisfactory explanation fora sealing delay.’” (quoting United States v. Pedroni , 958 F.2d 262, 266 (9th Cir. 1992))); Maxwell , 25 F.3d at 1394 (“Intervening weekends, holidays, and the u navailability of the issuing judge are satisfactory explanations for slight delays in presenting wiretap recordings for sealing.”); United States v. Ardito , 782 F.2d 358, 362-63 (2d Cir. 1986) (two-day intervening holiday, unavailability of issuing judge, and need to prepare paperwork provided adequate explanation for five-day delay); United States v. Fury , 554 F.2d 522, 533 (2d Cir. 1977) (holding that un availability of issuing judge excused six-day delay in sealing of tapes). But see Rodriguez , 786 F.2d at 477-78 (holding that absence of issuing jud ge is no longer an acceptable excuse for failing to have recordings sealed); cf. United States v. Quintero , 38 F.3d 1317, 1330 (3d Cir. 1994) (declining to decide “whether the absence of the supervising judge, in and of itself, is sufficient excuse for any delay in sealing”). We conclude that the district court did not abuse i ts discretion when it concluded that the government carried its burden of providing a satisfactory explanation for the seven-day delay before the recordings were seal ed.-19-

II. Suppression of Evidence Obtained Following Tra ffic Stop As indicated above, an intercepted wiretapped telep hone call between Cline and Shane Wright on December 14, 1999, indicated th at Cline would be visiting Wright the next day between noon and 2:00 p.m. Whi le agents suspected Cline was a supplier of pseudoephedrine to Wright, nothin g in the intercepted call specifically referred to any such delivery. Agents had Cline’s business, Biker’s Dream, under surveillance, and followed his truck a s he headed generally in the direction of Wright’s house. The investigating agents had previously met with a Kansas State trooper, Trooper Grassl, and arranged for him, accompanied b y DEA Agent John Aldine, to follow Cline’s vehicle. After following Cline’s vehicle for several miles, Trooper Grassl observed “Mr. Cline drift[] approxim ately one to two feet clear across the white line onto the shoulder area of the roadway and then pull[] his vehicle back.” R. Vol. 14, doc. 985, at 19. Grass l testified that he thought Cline “was actually going to hit the bridge rail.” Id. at 20. Trooper Grassl and Agent Aldine followed Cline’s vehicle for another mile an d, once he started to turn off the highway on a road towards Wright’s house, the trooper activated his flashing lights and pulled Cline over. The weather was clea r but windy at the time of the stop.-20-

When the trooper approached Cline’s truck and informed Cline that he had stopped him because he had observed him swerve off onto the shoulder of the road, Trooper Grassl testified that Cline “indicate d that he was having a little trouble with his vehicle. . . . [H]e said basicall y something to do with his ball joint – front ball joint appeared to be leaking. H e was having some trouble with it pulling.” Id. at 23. Grassl obtained Cline’s driver’s license and returned to his car to run a check on it, while Cline waited in his truck. During some of this time, prior to running a check on Cline’s license, Grassl waited while DEA Agent Aldine discussed what to do with other DEA agents. After running a computer check on Cline’s license, the trooper returned the license to Cline, issued him a warning, told him he was free to go, and then asked him if he (Grassl) could ask Cline a few more quest ions. Cline indicated he could. The traffic stop had lasted approximately eight and one-half minutes by the time Grassl asked Cline’s permission to ask a few more q uestions. Grassl asked if Cline had been drinking or if he had anything illeg al in the car, to which Cline responded he did not. Grassl then asked if he coul d search the vehicle for anything illegal, and Cline said he could. While s earching the passenger area of the truck, Grassl removed a jacket lying on the pas senger side floorboard. Under the jacket was a paper sack containing two ziplock baggies containing a large-21-

number of white pills which turned out to be pseudo ephedrine. Trooper Grassl seized the pills and gave Cline an evidence custodyreceipt. Cline argues that the traffic stop was invalid as u nsupported by either reasonable suspicion or probable cause. He also ar gues that the detention exceeded the permissible scope and duration of an i nvestigative detention because several minutes elapsed while Trooper Grassl waitedfor DEA Agent Aldine to discuss with other DEA agents what course of actionto take, prior to Grassl’s completion of the routine aspects of the traffic s top. Finally, he argues his consent to search was tainted and invalid because i t followed so closely an illegal stop and detention. The district court denied Clin e’s motion to suppress the pills seized following the traffic stop, finding neither the initial stop, nor the detention nor the search pursuant to Cline’s consent contrave ned the Fourth Amendment. When reviewing the denial of a motion to suppress, “we accept the factual findings of the district court, and its determinati on of witness credibility, unless they are clearly erroneous.” United States v. Cervine , No. 02-3169, 2003 WL 22407413, at * 2 (10th Cir. Oct. 22, 2003). We vie w the evidence in the light most favorable to the district court’s findings. Id. We review de novo the “ultimate determination of reasonableness under the Fourth Amendment.” Id.-22-

A. Validity of Initial Stop We conduct a two-step inquiry when considering the constitutionality of a traffic stop under the Fourth Amendment. First, we determine “‘whether the officer’s action was justified at its inception.’” Id. (quoting United States v. Gonzalez-Lerma , 14 F.3d 1479, 1483 (10th Cir. 1994)). Second, we consider “‘whether the action was reasonably related in scop e to the circumstances that first justified the interference.’” Id. (quoting Gonzalez-Lerma , 14 F.3d at 1483). “‘An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation.’” Id. (quoting Gonzalez-Lerma , 14 F.3d at 1483). A valid traffic stop must be “‘based on an observedtraffic violation’” or a “‘reasonable articulable suspicion that a traffic o r equipment violation has occurred or is occurring.’” United States v. Callarman , 273 F.3d 1284, 1286 (10th Cir. 2001) (quoting United States v. Botero-Ospina , 71 F.3d 783, 787 (10th Cir. 1995) (en banc)). In this case, Cline was sto pped for violating Kan. Stat. Ann. § 8-1522, which provides that “[w]henever any roadway has been divided into two (2) or more clearly marked lanes for traff ic . . . [a] vehicle shall be7 See R. Vol. 12, Def.’s Ex. C3 (warning given to Cline for traffic violation,

indicating statute violated was “8-1522”). -23- driven as nearly as practicable entirely within a s ingle lane.” Kan. Stat. Ann. § 8-1522(a). 7 Cline relies upon our decision in United States v. Gregory , 79 F.3d 973 (10th Cir. 1996), and a Kansas district court decision, United States v. Ochoa , 4 F. Supp. 2d 1007 (D. Kan. 1998), to argue that a si ngle instance of swerving onto the shoulder of the road did not constitute a traffic violation. In Gregory we held that it was not a violation of a Utah traffic statu te virtually identical to § 8-1522 for the driver of a U-Haul to swerve one time onto the shoulder of the road, 79 F. 3d at 978, and in Ochoa a Kansas district court held that it was not a vio lation of section 8-1522 for a driver to drift once onto the shoulder of the road, 4 F. Supp. 2d at 1012. As we have subsequently held, however: decisions like Gregory do not establish an absolute standard or bright-line rule regarding what conduct constitutes a violation of statutes like Kan. Stat. Ann. § 8-1522, but insteadhighlight the need to analyze objectively all the surrounding facts an d circumstances to determine whether the officer had the probable caus e necessary to justify the stop. United States v. Ozbirn , 189 F.3d 1194, 1198 (10th Cir. 1999). Thus, in Gregory , the defendant was driving a U-Haul on a mountainous , winding road, in windy conditions. 79 F.3d at 975. On those particular f acts, we held a single instance8 The district court’s findings with respect to this are as follows: (continued...) -24- of swerving onto the shoulder did not constitute a traffic violation. Id. at 978. In Ochoa there was no evidence as to weather or road condit ions, and the court found that “the troopers caused or contributed to causing the drift.” Ochoa , 4 F. Supp. 2d at 1011-12 & n.4. On those particular fac ts, the district court held that a single instance of swerving onto the shoulder was n ot a violation of section 8-1522. Id. at 1012. As Ozbirn makes clear, however, neither case stands for the proposition that a single instance of drifting onto the shoulder can never be a violation of a traffic statute like section 8-1522, which is what Cline, in effect, asks us to declare. Rather, the particular facts a nd circumstances of each case determine the result. As the district court noted, Trooper Grassl testifi ed that, while there was a brisk wind, it was not significant enough to have c aused Cline’s truck to swerve. R. Vol. 14, doc. 985, at 82. He further testified there was nothing else about the road conditions that would have caused the swerve and that nearly striking a bridge abutment was a dangerous driving violation. Id. at 82-83. Moreover, despite Cline’s suggestion that the officers may have contributed to Cline’s swerve by following him, the district court found that “[t]here is no convincing evidence that this occurred here.” Mem. and Order at 16, R. Vol. 8, doc. 940. 88 (...continued)

While on the videotape Trooper Grassl is heard tell ing Cline that he was preparing to pass when he saw Cline swerve, the testimony of Grassl and Agent Aldine is that the patrol car neve r started to pass the pickup and always maintained a proper following distance. Cline is not heard giving any excuse to Trooper Grassl th at he swerved in response to the patrol car. Nor does the court hav e any basis for saying that a reasonable driver would be distractedby the mere presence of a patrol car operated in a normal manne r as to drift one to two feet off the road and nearly strike a bridge railing. Mem. and Order at 16-17, R. Vol. 8, doc. 940.

9 As we stated in Cervine , “our case law makes clear that ‘[w]hile either probable cause or reasonable suspicion is sufficient to justify a traffic stop, only the lesser requirement of reasonable suspicion is n ecessary.’” Cervine , 2003 WL 22407413, at *3 n.2. -25- The fact that Trooper Grassl may have had other mot ivations in stopping Cline is irrelevant. See Cervine , 2003 WL 22407413, at *4 (“The fact that the troopers had other motivations for stopping Mr. Cervine has no bearing upon this review.”). “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States , 517 U.S. 806, 813 (1996). In sum, given that Trooper Grassl needed only an articulable suspicion that a traffic violation had occurred, 9 we hold that the initial stop of Cline’s truck was reasonable.-26-

B. Validity of Detention Cline next argues that, even assuming the initial s top was valid, the detention which followed exceeded the permissible s cope of a routine traffic stop. He argues that several minutes elapsed prior to the time when Trooper Grassl actually contacted dispatch and transmitted Cline’s driver’s license information, during which time Agent Aldine was discussing with other DEA agents what course of action to pursue in their investigation o f Cline, all of which was unrelated to the traffic violation. “[T]he Fourth Amendment reasonableness of a traffic stop based on probable cause must be judged by examining both the length of the detention and the manner in which it is carried out.” United States v. Holt , 264 F.3d 1215, 1230 (10th Cir. 2001) (en banc). The Supreme Court has stated that, in determining whether a detention is too long, we should “examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” United States v. Sharpe , 470 U.S. 675, 686 (1985). Other than the fact that some five minutes elapsed prior to Trooper Grassl’s submission of Cline’s driver’s license to dispatch, nothing el se about the detention was unusual or intrusive. Trooper Grassl testified that most traffic stops last between five and ten minutes. Cline’s stop lasted approxim ately eight minutes. While Agent Aldine did, for a few minutes, discuss with D EA agents what course of-27-

action to pursue with respect to Cline, a person th ey suspected was involved in a methamphetamine drug organization they were investi gating, those few minutes did not extend the length of the stop beyond that o f a normal traffic stop. We accordingly agree with the district court that the detention was reasonable in scope and duration.

C. Consent to Search Cline argues that the consent to search, immediatel y following what he claims was an unlawful stop and detention, was tainted and therefore invalid. We have held that the stop and detention were both rea sonable and valid under the Fourth Amendment. Trooper Grassl had returned Clin e’s driver’s license to him and told him he was free to go. At that point, the trooper asked Cline if he (Grassl) could ask Cline a few more questions. Cli ne assented. When asked, Cline denied having anything illegal in the truck, and then agreed to let Grassl search the car. “It has long been established that an officer may c onduct a warrantless search consistent with the Fourth Amendment if the challenging party has previously given his or her voluntary consent to that search.” United States v. Ringold , 335 F.3d 1168, 1174 (10th Cir. 2003). The distri ct court found “[t]he videotape is convincing evidence that . . . Cline’s consent to search the pickup-28-

was unequivocal and specific and freely given witho ut duress or coercion.” Mem. and Order at 30, R. Vol. 8, doc. 940. We agree wit h the district court that Cline’s consent was voluntary and freely given.

III. Search of House Cline next argues that the execution of a search wa rrant at his residence early in the morning of March 27, 2000, violated 18 U.S.C. § 3109 and requires the suppression of all the evidence gathered pursuant to that warrant. The district court denied Cline’s motion to suppress. On appeal from that denial, “we review the district court’s factual findings for clear err or, its conclusions of law de novo, and view the evidence in the light most favorable to the prevailing party.” United States v. Gallegos , 314 F.3d 456, 458 (10th Cir. 2002). The “knock and announce” rule contained in § 3109 “ forms a part of the reasonableness inquiry under the Fourth Amendment.” Wilson v. Arkansas , 514 U.S. 927, 929 (1995). Section 3109 provides that alaw enforcement officer may: break open any outer or inner door or window of a h ouse, or any part of a house, or anything therein, to execute a searc h warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding hi m in the execution of a warrant. 18 U.S.C. § 3109. The knock and announce requireme nt may be dispensed with entirely if the police “have a reasonable suspicion that knocking and announcing-29-

their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigatio n of the crime by, for example, allowing the destruction of evidence.” Richards v. Wisconsin , 520 U.S. 385, 394 (1997). When officers do knock and announce, as th ey did here, “‘the amount of time that officers must wait after knocking and ann ouncing depends on the particular facts and circumstances of each case.’” Gallegos , 314 F.3d at 460 (quoting United States v. Jenkins , 175 F.3d 1208, 1213 (10th Cir. 1999)). We have recently stated that “our survey of cases in t his circuit has not revealed a single case upholding an interval of less than ten seconds in the absence of exigent circumstances, and our review of cases fromother circuits has yielded similar results.” Id. The district court made the following findings conc erning the execution of the warrant: John Aldine, a DEA Special Agent, was the team lead er for this execution. Aldine testified that at approximately 7:30 a.m. on March 27, 2000, Special Agent Robert Allen rapped on Clin e’s door with one hand and yelled loudly once or twice, “DEA, sea rch warrant.” After waiting five to ten seconds thereafter, and h earing no response from inside, Aldine ordered Allen to “hit it.” All en hit the door with a battering ram, the door opened, and eight to ten agents entered Cline’s residence with weapons drawn. Both Clines were found in bed, awake but unclothed. Mem. and Order at 8-9, R. Vol. 8, doc. 983. The di strict court held the “five to-30-

ten” second interval between the knock and announce and the forced entry was reasonable under the circumstances, because several developments during the officers’ approach to the Clines’ residence gave th e officers a legitimate concern for their safety and made further delay too risky:

The evidence was uncontradicted that the executing officers were nervous and apprehensive. Special Agent Aldin e testified that their “cavalcade of cars” had been spotted in the s mall town in which they assembled and had possibly been reported to th e Clines by someone on a cell phone that morning as the cars ap proached the Clines’ residence. Agents knew, because of authorized wiretaps, that C line and Johnny Shane Wright were associated, that Wright us ed and that Clines may have used counter surveillance devices, such as police scanners and cameras mounted at a distance from the house. The agents felt exposed because of the Clines’ neighbor ’s view of their cars on the road near Cline’s drive, the possibility that the Clines had a camera mounted near the gate to their residence, and the open area surrounding their immediate approach to the Clines’ house. Agents were delayed for several minutes by their un successful attempts to break the lock on the gate at Clines’ d rive, and had to leave their vehicles, which they had anticipated us ing as cover, at the gate approximately 200-300 yards from the residence . Soon thereafter, agents unsuccessfully attempted to call Timothy Cline out of his house by use of the telephone, while approac hing Cline’s residence on foot. Agents also had information causing them to believe that Cline may be armed and dangerous. . . . Based upon the above uncontradicted testimony, the court finds that the Clines could easily have been alerte d to the presence of the agents because of the activities that occurred outside the house immediately prior to their entry. It was thus reasonable for the10Agent Aldine testified that he did not seek a no-kn ock warrant in this case

because, when law enforcement personnel had execute d a search warrant on Cline’s residence in 1994, Cline had put up no resi stance.

11 We note that the Supreme Court has just heard oral argument in a case where the question on which the Court granted certi orari was whether law (continued...) -31- agents to believe that their safety had been compro mised and further delay was unwarranted

. Id. at 10-11 (emphasis added). Those findings are amply supported by the testimonyat the suppression hearing and are not clearly erroneous. We conclude that the officers’ entry under the circ umstances of this case was reasonable. Not only were the officers aware that a prior search of Cline’s house had revealed firearms, but they suspected he used counter-surveillance equipment and could be aware of their approach; the ir approach to his house had taken longer than anticipated and was exposed for the last 200-300 yards, because of the locked gate which they were unable to open; they feared their approach had been relayed to Cline, based upon their observationof a person watching them while talking on a cell phone, as well as a neighbo r watching them; their fears were not allayed when they tried to reach Cline by cell phone several times but were unable to. 10 Thus, in this case, these exigencies permitted th e officers to enter the house forcibly some ten seconds after kno cking and announcing their
presence. 1111 (...continued)

enforcement officers executing a search warrant vio lated the Fourth Amendment and 18 U.S.C. § 3109 when they forcibly entered a s mall apartment in the middle of the afternoon fifteen to twenty seconds after kn ocking and announcing their presence. United States v. Banks , 282 F.3d 699 (9th Cir. 2002), cert. granted , 123 S. Ct. 1252 (U.S. Feb. 24, 2003) (No. 02-473). That case involved no exigent circumstances of any kind, and is accordingly suffi ciently distinguishable from this case. -32- IV. Prosecutorial Misconduct Prior to trial, Cline filed a motion in limine seeking to prevent the government from presenting any evidence regarding the Clines’ pending divorce and Cline’s girlfriend. The court denied the motio n as moot, in reliance on the government’s representation that it did not intend to present any such evidence. The court directed the government not to refer to t hat evidence without first approaching the bench. During the trial, Paula Boyd, the former store mana ger of Biker’s Dream, testified regarding two $5,000 cash deposits into the Biker’s Dream bank account. She testified that they may have been down payments from Cline on a motorcycle for his granddaughter. When Boyd was recalled the next day to testify further about those payments, it was revealed that in 1999 a motorcycle was sold and title transferred to Cline’s granddaughter. Later, the t itle was transferred back to Biker’s Dream. Under questioning by the government , it was revealed that Cline took the motorcycle home to let a friend ride, but not his granddaughter. Cline’s-33-

counsel asked whether a grandfather would let his g randdaughter ride a motorcycle without proper insurance. The government asked who the friend was, and Boyd revealed that it was Cline’s 18-year-old g irlfriend. Cline’s counsel objected on the ground that it was irrelevant, beyo nd the scope, and unduly prejudicial under Fed. R. Evid. 403. He did not specifically refer to the court’s in limine order. The court overruled the objection. After the jury returned its guilty verdict, Cline f iled a motion for judgment of acquittal or, in the alternative, for a new trial, arguing, inter alia , that a new trial should be granted because of prosecutorial mi sconduct in the questioning of Boyd about Cline’s girlfriend, in violation of the court’s in limine order. The district court denied the motion, concluding that, although the government violated the in limine order “even though the defendant may have invited the government’s questions . . . . [t]he court[] nevertheless[] stands by its evidentiary ruling on the defendant’s trial objection which made no reference to the in limine order or to the government’s violation of the same. ” Mem. and Order at 11-12, R. Vol. 8, doc. 1576. The court went on to state: The ruling is correct in that the evidence was fair ly relevant, was not outside the scope of recross examination, and was n ot unfairly prejudicial. Moreover, the court can find no groun ds for believing the government’s improper conduct influenced the ve rdict and, thus, justifies a new trial. The court instructed the ju ry that the defendant was on trial only for the acts alleged in the super seding indictment and that they were not to be governed by bias or pr ejudice. Considering the overwhelming evidence of the defend ant’s-34-

involvement in the drug conspiracy, the fact that t he defendant had a younger girlfriend is insignificant and could not h ave influenced the jury. Id. at 12. We review for an abuse of discretion the d enial of a defendant’s motion for a new trial based on prosecutorial misconduct. United States v. Maynard , 236 F.3d 601, 605 (10th Cir. 2000). We conclude that the district court did not abuse its discretion in denying Cline’s motion for a new trial in this case.

CONCLUSION For the foregoing reasons, we AFFIRM the district c ourt’s denials of Cline’s motions to suppress and the denial of his m otion for a new trial.