* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### AUG 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-4182

v. (D.C. No. 96-CR-270-J) RODRELL C. CASTINE, (D. Utah)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Defendant-Appellant, Mr. Rodrell Castine, was foundguilty on two counts of possession of a controlled substance with intentto distribute, and he was sentenced to 115 months imprisonment. Defendant ch allenges the validity of his-2-

conviction, asserting that the district court impro perly denied his motion to suppress the evidence used to convict him. On the morning of November 10, 1996, Utah Highway P atrolman Lance Bushnell was patrolling Interstate 70 in a marked p atrol car. He observed a latemodel white Chevrolet Suburban slow from 70 m.p.h. to 55 m.p.h. as it approached his patrol car. After observing the veh icle’s deceleration, Officer Bushnell crossed the center median and drove at spe eds approaching 100 m.p.h. to catch up to the Suburban. As the patrol car approa ched the Suburban, the officer observed the vehicle cross over into the emergency lane by a few inches on two occasions. See R., Vol. II at 7. While being pursued, the Suburb an accelerated to 70 m.p.h. and then again reduced its speed to 55 m. p.h. The officer believed these acts were indicative of a driver who was impa ired or falling asleep. He pulled alongside the Suburban and noticed (through a tinted window) that the driver had a “withdrawn look.” Id. at 32; see id. at 22-23. Officer Bushnell then stopped the vehicle to investigate his belief that the driver was either fatigued or impaired. See id. at 8. As the officer approached the car on foot h e noticed an “overpowering” odor of marijuana. Id. at 10. Defendant, the driver of the Suburban, was subjected to field sobriety tests, an d he was found to be driving while under the influence of drugs. The Suburban w as searched while Defendant was being subjected to the sobriety tests. This se arch yielded approximately forty-3-

pounds of marijuana and two kilograms of cocaine. After his arrest, Defendant filed a motion to suppr ess the drugs recovered during the search of the Suburban, alleging that th e evidence was seized as the result of a warrantless traffic stop in violation o f the Fourth Amendment. The district court held a hearing on the motion to supp ress and then denied the motion. Defendant appeals his conviction to this court, arg uing that the district court’s denial of his motion to suppress was in error and that he is, therefore, entitled to have his case remanded. See Appellant’s Br. at 42. He asserts that the searchof the Suburban violated the Fourth Amendment’s prohib ition against unreasonable searches because Officer Bushnell did not have a ju stifiable basis for initially stopping the vehicle. The district court held that because Officer Bushne ll observed Defendant violating the Utah traffic code the stop was justif ied under the Supreme Court’s holding in Whren v. United States , 517 U.S. 806, 819 (1996) (holding that probable cause to believe the traffic code has been violated renders a stop reasonable). See Appellant’s Br. App. at 4-8. When a vehicle stop is “based on an observed traffic violation or . . . [a] reasonab le articulable suspicion that a traffic or equipment violation has occurred or is o ccurring,” the Fourth Amendment is not violated. United States v. Botero -Ospina , 71 F.3d 783, 787 (10th Cir. 1995) (en banc), cert. denied , 518 U.S. 1007 (1996). If Officer-4-

Bushnell had a reasonable suspicion that Defendant violated Title 41 Utah Code Annotated by not keeping the Suburban within a sing le lane or by operating a vehicle while under the influence of drugs or alcoh ol, then the stop did not offend Defendant’s Fourth Amendment rights. See id. ; Utah Code Ann. §§ 41-6-61(1) & 41-6-44(2)(a). Determinations of reasonable suspicion are reviewed de novo . See United States v. Edwards , 103 F.3d 90, 92 (10th Cir. 1996). We must consid er the totality of the circumstances in which the officer acted and view the evidence in the light most favorable to the government. See United States v. Sokolow , 490 U.S. 1, 7-8 (1989); United States v. Wood , 106 F.3d 942, 946 (10th Cir. 1997); United States v. Parker , 72 F.3d 1444, 1449 (10th Cir. 1995). This court has held that driving over a lane divider or drifting into a nother lane constitutes a violation of Title 41 Utah Code Annotated section 6-61(1). S ee Parker , 72 F.3d at 1449; Botero-Ospina , 71 F.3d at 787-88. Butsee United States v. Gregory , 79 F.3d 973, 978 (10th Cir. 1996) (holding that an isolated inci dent of a vehicle drifting into the emergency lane of a highway is not a violation of this section); State v. Bello , 871 P.2d 584, 587 (Utah Ct. App.) (same), cert. denied , 883 P.2d 1359 (Utah 1994). Officer Bushnell testified at the suppression heari ng that Defendant twice crossed a lane divider. The officer also stated th at Defendant’s speed variations-5-

and his “withdrawn look” led the officer to believe that, in light of the officer’s knowledge and experience with drivers on that secti on of road at that time of day, Defendant might be driving while impaired. See R., Vol. II at 8-9, 32. This testimony is sufficient for us to conclude that the totality of the circumstances supported the officer’s reasonable suspicion that aviolation of the law was occurring. See United States v. Lee , 73 F.3d 1034, 1036, 1038 (10th Cir. 1996) (holding that a vehicle straddling the line dividin g two driving lanes for 150 feet provided reasonable suspicion that driver was drivi ng under the influence or fatigued); United States v. Barbee , 968 F.2d 1026, 1028-29 (10th Cir. 1992). We conclude that there was no error in the districtcourt’s decision denying Defendant’s motion to suppress; and, therefore, we AFFIRM Defendant’s conviction. Entered for the Court

Monroe G. McKay Circuit Judge