### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50018

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. JANET LEE ARCHULETA, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 4:10-CR-171

Before KING, WIENER, and HAYNES, Circuit Judges. PER CURIAM: * Defendant-Appellant Janet Lee Archuleta (“Archuleta” ) a ppeals the district court’s denial of her motion t o s u p p ress evidence obtained during a traff i c s t op and warrantless search of her vehicle. Specifically, Archuleta contends that all evidence obtained as a r e s u l t of the stop and the ensuing search should be sup p r e s s ed as fruit of the poisonous tree because the trooper did not have reasonable suspicion to initiate the traffic s t o p . We affirm the court’s denial of the motion to suppress and Archuleta’s subsequent conviction. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 6, 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-50018 Document: 00511778706 Page: 1 Date Filed: 03/06/2012No. 11-50018 I. Facts & Proceedings A. Facts Archul e t a was stopped by highway patrolman Trooper Pearso n , wh o f o u n d 376 pounds of marijuana in the backseat of her Chevrolet Blazer. Archuleta was later indicted on one count of possession with intent to distribute between 100 and 1,000 kilograms of marijuan a , i n v i o lation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. She filed a motion to suppress the contraband seized in the traffic stop, challenging only the initial stop. 1 B. Proceedings The district court conducted a suppression hearing at which only Trooper Pearson testified. He testified that he had observed Archuleta’s car and a van traveling in close proximity to each other on Highway 166 at 5:30 a.m. near Fort Davis, Texas, approximately 40 miles from the Mexican border. He noted that Archuleta’s car was from out of state and was neither a newspaper d e l iv e r y truck, nor a ranch vehicle — typically the only kind of traffic on this road at that hour. Trooper Pearson was initially tr aveling on that highway in the opposite direction fr o m Ar chuleta. He turned around and followed Archuleta and observed her weaving within her lane. He then “paced” Archuleta’s speed from

a distance of approximately 200 yards for two seconds, calculating that she was traveling at 58 miles per hour in a 55 miles per hour speed zone. Trooper Pearson also testified that, based on his six years of experience, this area of the highway was “known” for trafficking in illegal aliens and drugs; that, except for newspaper delivery and ranch traffic, there is very little traffic in that area at that time in the morning; and that it was still too dark for tourist traffic. Trooper Pearson also stated that, i n his experience, weaving within a single l a ne indicates that the driver is either (1) intoxicated or otherwise

Archu let a note d that , “if the st op is thr ow n out, obvious ly, everyt hing els e is fr uit of 1 the poi so nous t reeandw ouldal sobet hrow n o ut”

. 2 Case: 11-50018 Document: 00511778706 Page: 2 Date Filed: 03/06/2012No. 11-50018

impaired by drugs or fatigue, or (2) focusing his or her attention on a following vehicle as potential law enforcement. D uring the hearing, Trooper Pearson added his narration to a vi d e o recording of the stop. He said that he began pacing Archuleta when she started going down a hill whi l e m a k i n g a leftward curve. After narrating that he had begun to pace Archuleta, Tro o p e r P earson stated “[a]nd shortly I will activate my emergency lights, and that’s when I looked at my speedometer.” Trooper Pearson also testified about the accuracy of the “pacing” method, which is approved by the Texas Department of Safety (“Texas DPS”). He noted that his car’s speedometer had been calibrated in the Ford factory and that he “chec k s the calibration” of the speedometer against his radar twice daily. Trooper Pearson further testified that he keeps a log of these com p a r i s ons in accordance with Texas DPS requirements and that, even though the Texas DPS academy does not provide formal training in p a c i n g , he was trained in the technique “on the job”. He tes t i f i e d t hat, although pacing was not “an exact science,” it was “not possible” for his speedometer to be off by, for example, five miles per hour either way, because of the daily comparisons to his radar. Counsel for Archuleta cross-examined Trooper Pearson, but offered no additional evidence or witnesses for the district court’s consideration. Instead, defense counsel ventured that tw o s econds of pacing with a speedometer provided no r e asonable basis on which Trooper Pearson could conclude that Archuleta was driving three miles above the speed limit. The district court found Trooper Pearso n t o be a credible witness. Alth o u gh it noted the additional observations made by Trooper Pearson, the district court specifically held that the trooper had reasonable suspicion to make the traffic stop base d o n his determination that Archuleta was speeding by pacing her vehicle. The district court noted that Trooper Pearson’s speedometer

was factory-calibrated and stated that exceeding the speeding limit is prima

3 Case: 11-50018 Document: 00511778706 Page: 3 Date Filed: 03/06/2012No. 11-50018

f a c ie evidence of unlawful behavior. According to the district court, because Trooper Pearson followed the Texas DPS’s “required procedures for calibrating the speedom e t e r on a daily basis, and he maintains of [sic] record of each calibration,” his method was “obje c t ively reasonable”. Therefore, suppression

was not warranted because any mistake as to whether Archuleta was speeding was a mistake of fact, not of law. 2 Archuleta entered a conditional guilty plea, reserving her right to appeal the denial of the suppression motion. The district court sent e n c e d her to 60 months in prison. Archu l e t a now appeals the district court’s denial of her

m o t ion to suppress, asserting — for the first time on appeal — that T r o o p e r Pearson initiated the stop before any reasonable suspicion was formed. Arch u leta also contends that the district court erred in finding reasonable suspicion because it clearly erred in crediting T r o o p er Pearson’s testimony regarding the accuracy of pacing. II. Discussion A. Standard of Review Although the ultimate legal determination of reasonable suspicion is reviewed de novo , we review the district court’s factual findings — and especially its credibility determinations — for c l ear error in assessing the denial of a motion to suppress evidence. “A factual finding is not clearly erroneous as long 3

as it is plausible in light of t h e r e c o r d as a whole.” “Where a district court’s 4 denial of a suppression motion is based on live oral testimony, th e c l e a r ly

erroneous standard is particularly strong because the judge had the opportunity

CitingUnitedStates v. Montes -H ern andez , 350 F. App ’x 862, 867- 868 (5t h Cir. O ct. 2 5, 2009) (unpub lis hed)

.

Uni ted Sta tes v. G om ez , 623 F.3d265 , 268 (5t h Cir

. 2010) ( cit atio n o mi tte d)

. 3
Id. ( cit atio n o mi tte d)

. 4
4 Case: 11-50018 Document: 00511778706 Page: 4 Date Filed: 03/06/2012No. 11-50018

to observe the demeanor of the witnesses.” Finally, we review the evidence in 5 the light most favorable to the prevailing party — here, the government. 6 B. Timing of the Stop For the first time on appeal, Archuleta con t ends that Trooper Pearson initiated the stop before he determined that she was speeding. In support of this assertion, Archuleta points to Trooper Pearson’s testimony at the point that he stated “[a]nd shortly I will activate my emergency light s , and that’s when I looked at my speedomet e r . ” According to Archuleta, this statement indicates that Trooper Pearson looked at his speedometer to see if Archuleta was speeding afterhe turned on his emergency lights signaling her to stop. A “stop” means a restraint of movement, not just a physical stopping. And, observations made a

f te r a s t o p c a n n o t s u p p ly or support the reasonable suspicion needed to justify the stop. Accordingly, if it were clear that Trooper Pearson 7 signaled Archuleta to stop before he determined that she was speeding, then the stop would not have been supported by a r e a s o n ab l e suspicion based on speeding. 8 As Archuleta raises this argument as to the timing of the stop for the first time on appeal, however, the district court had no opportunity to decide whether the stop preceded a determination of reasonable suspicion. We therefore review

Id

. (c itin g Uni ted States v. Santi ago , 410 F.3d 193, 197 (5t h Cir. 2005) ); see also 5 Uni ted Sta tes v. Ca stro , 166 F.3d728 , 733 (5t h Cir

. 1999) ( st ating that“ wh en a tri al judge’ s find ing is bas ed on his deci sio n to cre ditt he tes tim ony of one of two or mor e wit nes se s, each of w hom has tolda cohe rentand fac ially pla usible st ory thatis not co ntr adic tedby extr ins ic evide nce, that find ing, if not inte rnall y inco nsi st e n t , can virtu ally never be clea r err or” ) (c itat ion om itt ed)

.

Go mez , 623 F.3dat269

. 6
Uni ted States v. Fri sbi e , 550 F.2d 335, 338 (5t h Cir. 1977) (no ting that a st op occ urr ed 7 wh en an a gent use d his f las hlight to signa l avehi cle to st op) ( cit atio n o mi tte d)

. See id. 8 5 Case: 11-50018 Document: 00511778706 Page: 5 Date Filed: 03/06/2012No. 11-50018

this issue only for plain error. In our plain error review, we consider whether 9 (1) there was erro r , (2) it was plain, meaning clear or obvious, (3) it affects

s ub stantial rights, and (4) allowing that error to stand seriously affects t h e fairness, integrity, or public reputation of judicial proceedings. 1 0 Archuleta’s contention that Tr o o p er Pearson initiated the stop before making a reasonable-suspicion determination fails on the first two prongs of the test for plain error because any error was neither clear nor obvious. At worst, Trooper Pearson’s testimony is ambiguous. His testimony could be interpreted to mean that he activated his lights either (1) before looking at his speedometer

or (2) simultaneously while looking at his speedometer. Therefore, it is not clear or obvious that Trooper Pearson signaled Archuleta to stop before he observed the speed of her vehicle. The district court determined that Trooper Pearson’s testimony was credible, and because we can find no clear or obvious error with

r espect to that determination, we conclude that district court did n o t c o m m i t plain error in denying suppression. C. Reasonable Suspicion Archuleta also challenges the district court’s conclusion that Trooper Pearson had reasonable suspicion to make the traffic st o p , c l a i m ing that the court committed clear error by crediting the troope r ’s testimony regarding the
accuracy of the “pacing” method. Archuleta essentially asserts that “pacing” is

an “implausib l e ” t e c hnique for gauging a vehicle’s speed. She advances a number of claims in support of this contention: (1) The technique is not taught by the Texas DPS, (2) the government never produced the actual Texas DPS policy that permits the use of pacing in court, and (3) a stop based on pacing a

Uni ted Sta tes v. N

ew ma n , 472 F.3d233 , 236- 37 ( 5th Cir. 200 6). 9
Id. ; Uni ted Sta tes v. O la no, 507 U. S. 725 , 734 (199 3). 1 0 6 Case: 11-50018 Document: 00511778706 Page: 6 Date Filed: 03/06/2012No. 11-50018

v e h icle at 58 miles per hour in a 55 mile per hour zone — just three miles per hour over the speed limit — has never been approved by the Fifth Circuit. 1 1 In light of the deference given to a district court’s factual determinations based on live testimony, we conclude that the district court did not commit clear

e r r o r in crediting Trooper Pearson’s testimony regarding pacing

. As noted, Trooper Pearson was the only witness to testify during the suppression hearing. There does not appear to be — and Archuleta do e s n o t offer — any extrinsic evidence to contradict Trooper Pearson’s testimony. Trooper Pearson testified expressly that pacing was an officially approved technique, and , w i t hout any evidence to contradict this statement, Archuleta’s assertion that (1) the technique is not taugh t b y the Texas DPS, and (2) the government did not physically produce the actual policy o n p a cing, is irrelevant. Although the district court’s statement that the Trooper Pearson “calibrated” his speedometer daily is incorrect, it is harmless i n l i gh t o f his testimony that he “checks” the calibration daily and logs his observations in accordance with official requirements. We note that the district court had the opportunity to observe the demeanor of the trooper, and, without more, Archuleta has not established clear

error as to this issue. And, contrary to Archuleta’s assertion, we have previously approved pacing as an acceptable method for establishing reasonable suspicion. In United States v. Castro , we approved a traffic stop in which the officer determined that the defendants were speeding based on pacing. Although the 1 2 of f i c e r i n that case paced the defendants for “several miles”, we focused our discussion on the district court’s credibility determination with r espect to the

Archu let a cit es to the fol low ing cas es in sup por t of this las t cont enti on: Castro , 166 1 1 F.3dat733 ; Ve ney v. O jeda , 321 F. Sup p. 2d733 ( E.D

. Va. 2004)

. 166 F.3d at 733- 34. The off icer in Castro als o obs erved that the def enda nts we re not 1 2
we aring se atbe lts , but the pane l held that the off icer had reas onable sus pic ion bas ed on eit her the sp eed ing o r the se at beltvio lati ons . 7 Case: 11-50018 Document: 00511778706 Page: 7 Date Filed: 03/06/2012No. 11-50018

testimony of the o f

f i c e r a nd the defendants. The Castro panel noted that the district court had heard the defendants’ testimony that the officer’s speedometer

was not accurate and that their own car’s speedometer did not register that they

were speeding. The panel further observed that the district court had “expressly found that the [defendants’ car] was in fact speeding” by crediting the officer’s testimony over that of the defendants. The panel then concluded that “[o]n the 1 3 record of this case, we are not prepared to say that the district court’s credibility determinations and ensuing factual findings were clearly erroneous.” 1 4 A s i n Castro , the district court in this case heard the testimony of t h e trooper — but, unlike the court in Castro , heard no contradictory testimony from the defendant — and made the factual determination th a t his testimony was

cre d ib l e . Without any other evidence or witnesses contradicting Trooper Pearson ’ s testimony, this issue rests solely on his credibility. Consistent with the Castro panel’s emphasis that “credibility determinations are for the district court,” we conclude that here the district court did not commit clear error.

1 5 1 6 Furthermore, even if Trooper Pearson was mistaken that Archuleta was in fact speeding, we agree with the district court that his method of pacing was obje c t ively reasonable in light of the district court’s credibility determination

Id. 1 3
Id. 1 4
Id. 1 5
We note that Archu let a reli es on the fac t that the def enda nts i n Ca s tr o we re not 1 6
we aring se atbe lts to dis tin gu i s h Ca s tro fr om the ins tant cas e. Such a dis tinc tio n is not dis pos itive beca use the pane l in Castro tre ated this find ing se par atel y fr om the off icer ’s pac ing of the vehicl e. Furt herm ore , t h e dis tinc tion that Archu let a dr aw s betw een the ins tant cas e and Ve ney v. Oj eda , 321 F. S u p p . 2d 733 (E. D. Vir. 2004) als o has no bear ing on this cas e. Altho ugh the off

icer in that cas e pac ed the plai ntif f’ s vehicl e for “one -t hird of a mi le” , the cour t als o n ote d thatne ithe r the plai ntif f nor the dr iver of the vehicl e t es tif iedt hat he or she w as dr iving at or below the sp eed ing lim it. Lik e the plai ntif f in Ve ney , Archu let a doe s not cont end that she wa s not sp eed ing; she sim ply ass ert s that Troo per Pears on’s tes tim ony wi th res pec t to the pac ing m etho d is im plau sib le. 8 Case: 11-50018 Document: 00511778706 Page: 8 Date Filed: 03/06/2012No. 11-50018

regarding the trooper’s testimony. Because Tro o p e r P e arson had an objectively 1 7 reasonable basis for i n i t i ating the stop, any factual mistake as to whether Archuleta was speeding does not diminish the trooper’s legal basis to make the stop. 1 8 III. Conclusion The district court’s d e nial of Archuleta’s motion to suppress and Archuleta’s subsequent conviction is AFFIRMED.

M ontes -H ern andez , 350 F. App ’x a t 867- 68. 1 7
See id. (no ting that the iss ue of wh ethe r one- half of the st ate nam e on a lice nse plat e 1 8
wa s act ually obs cur ed wa s “a very clos e call” and, und er su ch cir cum st ance s, the off icerhad an “ objec tivel y re aso nable sus pic ion” t hat a t raf ficvio lati on had occ urr ed)

. 9 Case: 11-50018 Document: 00511778706 Page: 9 Date Filed: 03/06/2012