IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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”) appeals the

district court’s denial of her motion to suppress evidence obtained during a

traffic stop and warrantless search of her vehicle. Specifically, Archuleta

contends that all evidence obtained as a result of the stop and the ensuing

search should be suppressed as fruit of the poisonous tree because the trooper

did not have reasonable suspicion to initiate the traffic stop. We affirm the

court’s denial of the motion to suppress and Archuleta’s subsequent conviction.

United States Court of Appeals

Fifth Circuit

F I L E D

March 6, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 11-50018

I. Facts & Proceedings

A. Facts

Archuleta was stopped by highway patrolman Trooper Pearson, who found

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 marijuana, in violation 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 delivery

truck, nor a ranch vehicle — typically the only kind of traffic on this road at that

hour. Trooper Pearson was initially traveling on that highway in the opposite

direction from Archuleta. 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, in his experience, weaving within a

single lane indicates that the driver is either (1) intoxicated or otherwise

Archuleta noted that, “if the stop is thrown out, obviously, everything else is fruit of 1

the poisonous tree and would also be thrown out”.

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impaired by drugs or fatigue, or (2) focusing his or her attention on a following

vehicle as potential law enforcement.

During the hearing, Trooper Pearson added his narration to a video

recording of the stop. He said that he began pacing Archuleta when she started

going down a hill while making a leftward curve. After narrating that he had

begun to pace Archuleta, TrooperPearson 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

“checks the calibration” of the speedometer against his radar twice daily. 

Trooper Pearson further testified that he keeps a log of these comparisons in

accordance with Texas DPS requirements and that, even though the Texas DPS

academy does not provide formal training in pacing, he was trained in the

technique “on the job”. He testified that, 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 two seconds of pacing with a speedometer

provided no reasonable basis on which Trooper Pearson could conclude that

Archuleta was driving three miles above the speed limit.

The district court found Trooper Pearson to be a credible witness. 

Although 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 based on 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

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facie evidence of unlawful behavior. According to the district court, because

Trooper Pearson followed the Texas DPS’s “required procedures for calibrating

the speedometer on a daily basis, and he maintains of [sic] record of each

calibration,” his method was “objectively 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 sentenced her to 60

months in prison. Archuleta now appeals the district court’s denial of her

motion to suppress, asserting — for the first time on appeal — that Trooper

Pearson initiated the stop before any reasonable suspicion was formed. 

Archuleta also contends that the district court erred in finding reasonable

suspicion because it clearly erred in crediting Trooper 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 clear 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 the record as a whole.” “Where a district court’s 4

denial of a suppression motion is based on live oral testimony, the clearly

erroneous standard is particularly strong because the judge had the opportunity

Citing United States v. Montes-Hernandez, 350 F. App’x 862, 867-868 (5th Cir. Oct. 2

5, 2009) (unpublished).

 United States v. Gomez, 623 F.3d 265, 268 (5th Cir. 2010) (citation omitted).

3

Id. (citation omitted).

4

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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 contends 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 lights, and that’s when I

looked at my speedometer.” According to Archuleta, this statement indicates

that Trooper Pearson looked at his speedometer to see if Archuleta was speeding

after he turned on his emergency lights signaling her to stop.

A “stop” means a restraint of movement, not just a physical stopping. And,

observations made after a stop cannot supply 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 reasonable 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. (citing United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005)); see also 5

United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999) (stating that “when a trial judge’s

finding is based on his decision to credit the testimony of one of two or more witnesses, each

of whom has told a coherent and facially plausible story that is not contradicted by extrinsic

evidence, that finding, if not internally inconsistent, can virtually never be clear error”)

(citation omitted).

 Gomez, 623 F.3d at 269.

6

United States v. Frisbie, 550 F.2d 335, 338 (5th Cir. 1977) (noting that a stop occurred 7

when an agent used his flashlight to signal a vehicle to stop) (citation omitted). 

 See id. 8

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this issue only for plain error. In our plain error review, we consider whether 9

(1) there was error, (2) it was plain, meaning clear or obvious, (3) it affects

substantial rights, and (4) allowing that error to stand seriously affects the

fairness, integrity, or public reputation of judicial proceedings.10

Archuleta’s contention that Trooper 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

respect to that determination, we conclude that district court did not commit

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 stop, claiming that the

court committed clear error by crediting the trooper’s testimony regarding the

accuracy of the “pacing” method. Archuleta essentially asserts that “pacing” is

an “implausible” technique 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

 United States v. Newman, 472 F.3d 233, 236-37 (5th Cir. 2006). 9

 Id.; United States v. Olano, 507 U.S. 725, 734 (1993). 10

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vehicle 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. 

11

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

error 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 does not offer — any extrinsic

evidence to contradict Trooper Pearson’s testimony. Trooper Pearson testified

expressly that pacing was an officially approved technique, and, without any

evidence to contradict this statement, Archuleta’s assertion that (1) the

technique is not taught by the Texas DPS, and (2) the government did not

physically produce the actual policy on pacing, is irrelevant. Although the

district court’s statement that the Trooper Pearson “calibrated” his speedometer

daily is incorrect, it is harmless in light of 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 12

officer in that case paced the defendants for “several miles”, we focused our

discussion on the district court’s credibility determination with respect to the

Archuleta cites to the following cases in support of this last contention: Castro, 166 11

F.3d at 733; Veney v. Ojeda, 321 F. Supp. 2d 733 (E.D. Va. 2004). 

166 F.3d at 733-34. The officer in Castro also observed that the defendants were not 12

wearing seatbelts, but the panel held that the officer had reasonable suspicion based on either

the speeding or the seat belt violations.

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testimony of the officer and 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 13

record of this case, we are not prepared to say that the district court’s credibility

determinations and ensuing factual findings were clearly erroneous.” 

14

As in Castro, the district court in this case heard the testimony of the

trooper — but, unlike the court in Castro, heard no contradictory testimony from

the defendant — and made the factual determination that his testimony was

credible. 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. 15 16

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

objectively reasonable in light of the district court’s credibility determination

Id. 13

Id. 14

 Id. 15

We note that Archuleta relies on the fact that the defendants in Castro were not 16

wearing seatbelts to distinguish Castro from the instant case. Such a distinction is not

dispositive because the panel in Castro treated this finding separately from the officer’s pacing

of the vehicle. Furthermore, the distinction that Archuleta draws between the instant case

and Veney v. Ojeda, 321 F. Supp. 2d 733 (E.D. Vir. 2004) also has no bearing on this case. 

Although the officer in that case paced the plaintiff’s vehicle for “one-third of a mile”, the court

also noted that neither the plaintiff nor the driver of the vehicle testified that he or she was

driving at or below the speeding limit. Like the plaintiff in Veney, Archuleta does not contend

that she was not speeding; she simply asserts that Trooper Pearson’s testimony with respect

to the pacing method is implausible.

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regarding the trooper’s testimony. Because TrooperPearson had an objectively 17

reasonable basis for initiating the stop, any factual mistake as to whether

Archuleta was speeding does not diminish the trooper’s legal basis to make the

stop.18

III. Conclusion

The district court’s denial of Archuleta’s motion to suppress and

Archuleta’s subsequent conviction is AFFIRMED.

 Montes-Hernandez, 350 F. App’x at 867-68. 17

See id. (noting that the issue of whether one-half of the state name on a license plate

18

was actually obscured was “a very close call” and, under such circumstances, the officer had

an “objectively reasonable suspicion” that a traffic violation had occurred).

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