UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ARMANDO ANGELES, Defendant - Appellant. No. 16-3354 (D.C. No. 6:15-CR-10154-JTM-4) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BALDOCK , and EID , Circuit Judges.

________________ _________________ MATHESON , Circuit Judge.

________________ _________________ Armando Angeles appeals the denial of his motion to suppress evidence found in his vehicle after a traffic stop. He argues the stop violated the Fourth Amendment. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude the stop was valid because it was based on reasonable suspicion of a tr affic offense. We therefore affirm.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 16, 2018
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND
A. Factual History On July 27, 2014, Kansas Highway Patr ol Trooper Sage Hill stopped Mr. Angeles, who was driving a green Ford E xpedition with his children in the back seat. Trooper Hill told Mr. Angeles he pulled him over for twic e crossing over the fog line while driving, a violation of a Kansas traffic st atute. Mr. Angeles responded that he had turned around to speak with his children. Trooper Hill gave Mr. Angeles a wr itten lane violation warning, told him he was free to go, but then inquired wh ether he could ask some further questions. Trooper Hill said there had been a lot of drug traffick ing activity between Wichita and Topeka and as ked Mr. Angeles if he had anything illegal with him in the car. Mr. Angeles responded that he did not. Trooper Hill then asked if he could search the car, and Mr. Angeles said that he could. In the console of the car, Trooper Hill found what was later determined to be 80 grams of cocaine. This traffic stop stemmed from a Drug Enforcement Administration (“DEA”) investigation of a drug trafficking ope ration centered in Wichita. The DEA had been monitoring the telephone calls of su spect Gilberto Sanchez. Matthew Lynch , a Sedgwick County, Kansas Sheriff’s Office de tective, was temporarily assigned to the DEA investigation and testified at the dist rict court suppression hearing about the monitoring activity leading up to Mr. Angeles’s arrest. Detective Lynch testified that, before th e stop, agents had identified “suspect phone calls and text messages” containi ng possible coded language for drug deals3 between Mr. Sanchez and Mr. Angeles. The wiretap revealed arrangements for them to meet so that Mr . Sanchez could provide drugs to Mr. Angeles. During later surveillance of Mr. Angeles, Detective Lynch followed him to the Kansas Turnpike. Based on information that “there was going to be a vehicle northbound in [his] area of responsibility that was possi bly tied to illegal drug activity,” Trooper Hill received inst ructions to stop Mr. Angeles, preferably for a traffic violation, but to pull over the car even if he could not find an independent reason to do so. ROA, Vol. 3 at 48-49

. Trooper Hill testified at the suppression hearing that he followed Mr. Angeles’s car after spotting it driving north on the Kansas Turnpike toward Topeka. He observed the car cross the white fog line of the highway twice by about a “tire width” each time. ROA, Vol. 1 at 56. Troope r Hill then pulled Mr. Angeles over. He arrested Mr. Angeles after finding the cocaine.
B. Procedural History Mr. Angeles was indicted for (1) possess ing with the intent to distribute cocaine (approximately 80 grams), in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(C); and (2) facilitating the co mmission of a violation of 21 U.S.C. § 841(a)(1) through use of a cell phone, in violation of 21 U.S.C. § 843(b). He moved to suppress the evidence under the Fourth Amendment, challenging the Government’s contentions “that the initi al stop was justified, that the continued detention was consensual, that the trooper ha d reasonable suspicion to continue the4 detention, and that the consent was voluntar ily and knowingly given.” ROA, Vol. 1 at 24. In response, the Government argued that the stop was valid based on (1) the wiretap and surveillance information, and (2) reasonable suspicion that Mr. Angeles had violated Kansas traffic law K.S.A. § 8-1522. It also argued the search was consensual. The district court denied the motion, upholding the stop on two grounds. United States v. Angeles , No. 15-10154-04-JTM, 2016 WL 4060293 (D. Kan. July 29, 2016). First, invoking the “collective knowledge doctrine,” the court said “the officer directing the stop ha d probable cause to believ e that Angeles’s vehicle” contained drugs based on “all of the in tercepted communications,” and this knowledge could be imput ed to Trooper Hill. Id. at *2. Second, “Trooper Hill validly stopped the vehicle for an observed traffic infraction.” Id. The district court found the testimony of the Government’s two witnesses, Detective Lynch and Trooper H ill, “generally credible.” Id. at *1. The court also relied on two dashboard video recordings of the stop (from different patrol cars) introduced by the Government for audio corroboration of Trooper Hill’s testimony and for evidence of the weather conditions when Mr. Angeles allegedly crossed the fog line. 1

1 Because “the camera overexposed th e visual images due to sunlight during the relevant moments,” there is no clear footag e of Mr. Angeles’s car going over the fog line. ROA, Vol. 1 at 41.5 Mr. Angeles pled guilty as charged, “s pecifically reserv[ing] the right to appeal [the district court’s] denial of [his] Motion to Suppress” and “maintain[ing] that law enforcement officers unlawfully stopped, detained, and searched [his] vehicle and [him]self on July 27, 2014.” ROA, Vol. 1 at 49. At his sentencing, Mr. Angeles received time served and three years of supervised release.
II. DISCUSSION On appeal, Mr. Angeles argues only that the district court erred in upholding the traffic stop, contending the collect ive knowledge doctrine does not apply and Trooper Hill lacked reasonable suspicion of a traffic violation. He does not challenge the length of the detention or his consent to search. We affirm because the district court did not err in holding th at reasonable suspicion of a traffic violation justified the stop.
A. Scope and Standard of Review The Government argues that Mr. Angele s has waived any a ppellate challenge to the traffic stop because he did not argue that the traffic stop was invalid at the suppression hearing and has not argued plain error on appeal. Whether or not Mr. Angeles preserved his challenge to the traffi c stop, and even under the most generous standard of review, we affirm because th e district court did not err in upholding the traffic stop based on reasona ble suspicion of the traffi c infraction under K.S.A. § 8-1522(a). “[W]e accept the district court’s factual findings and determin ations of witness credibility unless they ar e clearly erroneous.” United States v. Moran , 503 F.3d6 1135, 1139 (10th Cir. 2007). We view the evidence in “t he light most favorable to the ruling.” United States v. Juszczyk , 844 F.3d 1213, 1214 (10th Cir. 2017); see also United States v. Mendoza, 817 F.3d 695, 699 (10th Cir. 201 6). “[W]e review de novo the ultimate determination of th e reasonableness [of the stop].” United States v. Leyva-Serrano , 127 F.3d 1280, 1282 (10th Cir. 1997).
B. Analysis
In United States v. Botero-Ospina , 71 F.3d 783, 787 ( 10th Cir. 1995) (en banc) (citations and quotati ons omitted), this court st ated the standard for the constitutionality of a traffic stop: [A] traffic stop is valid under the F ourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. It is irrelevant , for purposes of Fourth Amendment review, whether the stop in question is sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop. It is also irrelevant that the officer may have had other subjective motives for stopping the vehicle. Our sole inquiry is whether this partic ular officer had reasonable suspicion that this particular motorist vi olated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction. See Whren v. United States, 517 U.S. 806 (1996). Applying these standards here, we conclude the district court did not err in determining that Trooper Hill had reasonable suspicion that Mr. Angeles had committed a traffic violation. The district court held that Trooper H ill had reasonable suspicion to stop Mr. Angeles based on his observing a violation of K.S.A. § 8-1522(a), which provides: Whenever any roadway has been divide d into two or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply.7 (a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driv er has first ascertained that such movement can be made with safety. The Kansas Supreme Court c onstrued this statute in State v. Marx , 215 P.3d 601 (Kan. 2009). It said that “K .S.A. 8-1522(a) is not a strict liability offense” and that “a violation of K.S.A. 8-1522(a) requires mo re than an incidental and minimal lane breach.” Id. at 612. See Kokins v. Teleflex, Inc. , 621 F.3d 1290, 1295 (10th Cir. 2010) (federal courts must be guided by “recent decisions of the state’s highest court” when interpreting state law). In Marx , the Kansas Supreme Court held that a vehicle’s crossing the fog line once, and then overcorrecting briefly across the centerline within a ha lf-mile to one-mile observed span , was not in itself grounds for reasonable suspicion that K.S.A. 8-15 22(a) had been violated. 215 P.3d at 612- 613. At the suppression hearing, Trooper H ill testified that, after spotting Mr. Angeles’s car driving north on the Kansas Turnpike from Wichita to Topeka, he observed the car cross the white fog line of the highway twice by about a “tire width” each time. ROA, Vol. 1 at 50, 56. The dashcam video showed no weather reason that would make staying in one’s lane impr actical. As seen on video, Trooper Hill, upon pulling Mr. Angeles over, asked whether he had been drinking or was distracted, noting that he had swerved over the fog line twice. Unlike the stop in Marx , where the court said crossing the fog line and overcorrecting only once was not enough to justify the stop, Mr. Angeles’s two8 forays fully over the line were enough for a reasonable offi cer to suspect that there was “more than an incidental and mi nimal lane breach” in this instance. 2 Also, here, unlike in Marx , there was (1) credible evidence that staying in one’s lane was practicable (given the w eather and road conditions captured by the dashcam videos), and (2) testimony on how far the vehicle crossed over the fog line (about a “tire width.”) 3 “[W]hether reasonable suspicion exists is an objective inquiry determined by the totality of th e circumstances.” United States v. Salas , 756 F.3d 1196, 1201 (10th Cir. 2014). Under the ci rcumstances here, we agree w ith the district court that Trooper Hill had reasonable susp icion to stop Mr. Angeles.
III. CONCLUSION We affirm the district court’s judgment. Entered for the Court

Scott M. Matheson, Jr. Circuit Judge

2 Although there is no post- Marx Kansas case on point, we have previously held that a vehicle’s drif ting onto a shoulder twice in a quarter mile “without any adverse . . . weather conditions to excuse or explain the deviati on” created reasonable suspicion that the driver coul d be a risk to others, under th e principles articulated in Terry v. Ohio , 392 U.S. 1, 88 (1968). United States v. Ozbirn , 189 F.3d 1194, 1199 (10th Cir. 1999).

3 See Marx , 215 P.3d at 613 (noting that “t he deputy gave no testimony from which the court could even infer that it wa s practicable to mainta in a single lane” and that the district court foun d that “no testimony was offe red as to how far the motor home crossed . . . the fog line.”)