2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-22-2006

USA v. Delfin-Colina

Precedential or Non-Precedential: Precedential

Docket No. 05-2127

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

_______________

No. 05-2127

_______________

UNITED STATES OF AMERICA

 v.

SALVADOR DELFIN-COLINA,

a/k/a Salvador Delfin-Colinas,

 Salvador Delfin-Colina,

 Appellant

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

D.C. Criminal No. 04-cr-00149

District Judge: The Honorable Terrence F. McVerry

_______________

Argued March 28, 2006

Before: MCKEE and VAN ANTWERPEN, Circuit Judges.
*

Honorable Louis H. Pollak, Senior District Judge for the

United States District Court of the Eastern District of

Pennsylvania, sitting by designation. 

2

and POLLAK,* District Judge.

_______________

(Opinion Filed September 22, 2006)

_______________

Stanley W. Greenfield [ARGUED]

Greenfield & Kraut

1035 Fifth Avenue

Pittsburgh, PA 15219

 Counsel for Appellant

Mary Beth Buchanan

Robert L. Eberhardt [ARGUED]

Office of United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

 Counsel for Appellee

______________

OPINION OF THE COURT

_______________

POLLAK, District Judge. 

This matter comes before us on Salvador Delfin-Colina’s

appeal from a judgment of conviction for transportation of an
1

 On April 1, 2005, the District Judge sentenced DelfinColina to time served. At that point Delfin-Colina had been in

the Allegheny County Jail for approximately ten months. 

3

illegal alien, 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (A)(1)(B)(ii),

which was entered in the District Court for the Western District

of Pennsylvania on December 23, 2004, at the conclusion of a

bench trial.1

 Delfin-Colina challenges the District Court’s pretrial order, entered November 10, 2004, denying his motion to

suppress evidence obtained from a traffic stop conducted by

Pennsylvania State Trooper Bradley Wagner. The District Court

had jurisdiction pursuant to 18 U.S.C. § 3231, and we have

jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons that

follow, we conclude that the District Court did not err in

denying Delfin-Colina’s motion to suppress, and hence we will

affirm the judgment of conviction. 

I. Background

The following narrative relies on the District Court’s

findings of fact, which are largely based on undisputed

testimony given by Pennsylvania State Trooper Bradley

Wagner. At the time of the events at issue, Trooper Wagner was

an eight-year veteran of the Pennsylvania State Police. During

this period of service, Trooper Wagner wrote hundreds of traffic

citations and warnings. Appendix (“App.”) at 17. Also, as part

of his patrol duties, Trooper Wagner participated in a

Department of Homeland Security overtime program named

“STOP,” which requires officers zealously to enforce traffic

laws. App. at 14. 
2

 Trooper Wagner testified, “Sure. I believe it obscures.

It’s a, it’s an item that hangs. It’s in the driver’s field of vision.

It’s not stationary. As you would drive down the road, it would

swing and it would be a distraction.” App. at 70.

3

 Trooper Wagner also testified that “while you operate

the vehicle nothing is to be hanging from the rear-view mirror.”

App. at 42. He reiterated this point several times throughout his

testimony. App. at 34, 42, 43, 53, 54, 55, 68.

4

On May 27, 2004, Trooper Wagner was working a

“STOP” overtime shift. At 8:00 A.M., he was tasked to perform

traffic control at a traffic incident that occurred on Interstate 80

near Mercer, Pennsylvania. While performing these duties,

Trooper Wagner observed Delfin-Colina driving a red pickup

truck. App. at 14. During the approach of the truck, Trooper

Wagner “noticed what appeared to be a ‘necklace’ or ‘pendant’

hanging from the rear view mirror.” App. at 14. He perceived

this item to be low hanging, but “not quite touching the

dashboard.” App. at 15. Finally, Trooper Wagner believed that

the item had the potential to obscure the driver’s vision because

the item was not stationary. App. at 15.2

 

Trooper Wagner testified that he believed the object

hanging from the rearview mirror to be a violation of 75

Pennsylvania Consolidated Statutes § 4524(c). He further

testified that it was his understanding that “anything” hanging

from a rearview mirror is a violation of § 4524(c).3

 App. at 15.

Section 4524(c) provides: 

Other obstruction. – No person shall drive any
5

motor vehicle with any object or material hung

from the inside rearview mirror or otherwise

hung, placed or attached in such a position as to

materially obstruct, obscure or impair the driver’s

vision through the front windshield or any manner

as to constitute a safety hazard. 

Trooper Wagner’s understanding of this Pennsylvania Statute

was flawed. An object hanging from the inside rearview mirror

does not contravene § 4524(c) unless it is positioned in such a

way as to “materially obstruct, obscure or impair the driver’s

vision through the front windshield.” Id.; see also Com. v.

Felty, 662 A.2d 1102, 1105 (Pa. Super. Ct. 1995). 

Based on his flawed understanding of § 4524(c), Trooper

Wagner conducted a traffic stop of the pickup truck. Once

Salvador Delfin-Colina’s truck was stopped, Trooper Wagner

obtained Delfin-Colina’s identification document (a Mexican

driver’s license) as well as identification documents (Mexican

election cards) from other occupants of the truck. Trooper

Wagner then advised Delfin-Colina that he had been stopped

because of the object – then discovered to be a crucifix –

dangling from the rearview mirror. At this point, the front-seat

passenger volunteered that he was a Puerto Rican native, but

that the rest of the truck’s occupants were illegal aliens.

Trooper Wagner had the truck wait for approximately ninety

minutes so that he could finish his traffic control duties. He then

had the truck follow him to the Mercer State Police barracks –

but stopping en route at McDonald’s so that the occupants of the

truck could get something to eat. Once the group arrived at the

police barracks, all of the illegal aliens were taken into custody
4

 Delfin-Colina did not appeal the District Court’s

rejection of his pretext argument.

6

and transferred to the Pittsburgh office of the Immigration and

Customs Enforcement division. App. at 17. Though a “Notice

of Warning” for the rearview mirror obstruction vehicle code

violation was issued by Trooper Wagner approximately two

hours after the initial traffic stop, Trooper Wagner testified that

once he discovered that the occupants of the truck were illegal

aliens, that discovery “trumped” everything else. App. at 17.

The District Court found Delfin-Colina guilty of

knowingly transporting an illegal alien pursuant to 8 U.S.C. §§

1324(a)(1)(A)(ii) and (A)(1)(B)(ii). Delfin-Colina now argues

for reversal of the District Court’s denial of his motion to

suppress evidence obtained as a result of Trooper Wagner’s

traffic stop. Delfin-Colina argued before the District Court that

the traffic stop was (1) pretextual4

 and (2) was without probable

cause “since the religious pendant which hung from the

Defendant’s rearview mirror was, in fact, no obstruction to the

Defendant’s visibility and safe driving.” Though finding that

“Trooper Wagner is mistaken in his belief that anything hanging

from a rearview mirror is a violation of the Pennsylvania

Vehicle Code,” the District Court reasoned that “the Defendant

is charged in the instant indictment with the crime of

transportation of an illegal alien in violation of [8 U.S.C.

§1324(a)(1)(A)(ii) and (A)(1)(B)(ii)] [so] when Trooper Wagner

saw the ‘necklace’ or ‘pendant’ hanging from the rearview

mirror, he had a reasonable and articulable suspicion that a

violation of the Pennsylvania Vehicle Code had occurred.”

App. at 21. 
7

 

II. Analysis

We review for clear error a district court’s factual

findings in a suppression hearing. United States v. Kiam, 432

F.3d 524, 527 (3d Cir. 2006) (citation omitted). We conduct a

plenary review of legal rulings and mixed questions of law and

fact. Id.

A

At the outset, we must address the question whether

reasonable suspicion or the higher standard of probable cause is

required to support an investigatory traffic stop under the Fourth

Amendment. The Fourth Amendment protects individuals

“against unreasonable searches and seizures.” U.S. Const.

amend. IV. A traffic stop is a “seizure” within the meaning of

the Fourth Amendment, “even though the purpose of the stop is

limited and the resulting detention quite brief.” Delaware v.

Prouse, 440 U.S. 648, 653 (1979); see also United States v.

Arvizu, 534 U.S. 266, 273 (2002); United States v. Wilson, 413

F.3d 382, 386 n.3 (3d Cir. 2005). Because an ordinary traffic

stop is analogous to an investigative detention, it has been

historically reviewed under the investigatory detention

framework first articulated in Terry v. Ohio, 392 U.S. 1 (1968).

See, e.g., United States v. Elias, 832 F.2d 24, 26 (3d Cir. 1987)

(describing “Terry-like traffic stop[s]”).

Under Terry and subsequent cases, “‘an officer may,

consistent with the Fourth Amendment, conduct a brief,

investigatory stop when the officer has a reasonable, articulable

suspicion that criminal activity is afoot.’” United States v.
8

Valentine, 232 F.3d 350, 353 (3d Cir. 2000) (quoting Illinois v.

Wardlow, 528 U.S. 119, 123 (2000)); see also United States v.

Sokolow, 490 U.S. 1, 7 (1989); United States v. Cortez, 449 U.S.

411, 417 (1981). Reasonable, articulable suspicion is a “less

demanding standard than probable cause and requires a showing

considerably less than preponderance of the evidence,”

Wardlow, 528 U.S. at 123, and only a “minimal level of

objective justification” is necessary for a Terry stop. Sokolow,

490 U.S. at 7. 

The Terry standard was for many years accepted as the

standard governing run of the mill traffic stops. See, e.g.,

United States v. Velasquez, 885 F.2d 1076 (3d Cir. 1989)

(upholding traffic stop based on the officer’s “reasonable and

articulable suspicion that [the defendant] had broken the law by

speeding”). But, in 1996, dictum of the Supreme Court in

Whren v. United States, 517 U.S. 806, 810 (1996), raised some

doubt. “As a general matter,” said the Court, “the decision to

stop an automobile is reasonable where the police have probable

cause to believe that a traffic violation has occurred.” Id. at 810.

Was the Court, shifting gears, now requiring “probable cause”

as the predicate for a traffic stop? The consensus is to the

contrary. As Judge William Fletcher has recently observed, the

Second, Sixth, Eighth, Ninth, Tenth and Eleventh Circuits have

all “construed Whren to require only that the police have

‘reasonable suspicion’ to believe that a traffic law has been

broken.” United States v. Willis, 431 F.3d 709, 723 (9th Cir.

2005) (W. Fletcher, J., dissenting); see Holeman v. City of New

London, 425 F.3d 184, 189-90 (2d Cir. 2005); United States v.

Hill, 195 F.3d 258, 264 (6th Cir. 1999); United States v.

Navarrete-Barron, 192 F.3d 786, 790 (8th Cir. 1999); United
5

 It is true that quite recently, in Gibson v.

Superintendent of N.J. Dep’t of Law and Public Safety-Division

State Police, 411 F.3d 427, 452 (3d. Cir. 2005), this court said

“[g]enerally, the absence of reasonable suspicion renders a stop

(continued...)

9

States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir. 2000);

United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999);

United States v. Chanthasouxat, 342 F.3d 1271, 1275 (11th Cir.

2003). The Ninth Circuit, in Lopez-Soto, closely

examined this question before concluding that reasonable

suspicion is all that is required to support a belief that a traffic

provision has been breached. Lopez-Soto, 205 F.3d at 1104-05.

The Lopez-Soto court first noted that “[p]rior to Whren, it was

settled law that reasonable suspicion is enough to support an

investigative traffic stop.” Id. at 1104 (citing Berkemer v.

McCarty, 468 U.S. 420, 439 (1984)). Second, the Lopez-Soto

court stressed that the Whren passage can be read to indicate that

probable cause is “sufficient to support a traffic stop, not . . .

necessary.” Id. Third, the Lopez-Soto court noted that the

Whren Court did not announce that it was creating a new rule as

would be expected were that the intent of the Court. Finally, the

Lopez-Soto court highlighted the facts in Whren, which

indicated that the arresting officer clearly possessed probable

cause to believe that a traffic law had been violated. Thus, the

Lopez-Soto court concluded that the Court’s “casual use of the

phrase ‘probable cause’ was not intended to set a new standard.”

Id. 

While this court has not directly addressed the question

whether Whren has changed the law of traffic stops,5

 we find
5

(...continued)

unlawful.” But the Gibson opinion did not discuss Whren, and

the Supreme Court case it cited – Alabama v. White, 496 U.S.

325, 329-30 (1990) – antedates Whren. 

10

persuasive the Ninth Circuit’s reasoning in Lopez-Soto. As

discussed in that opinion, there is little in Whren to suggest that

the Court meant to create a new probable cause standard in the

context of investigatory traffic stops. Instead, the Court in

Whren was responding to the situation before it – one in which

the officer obviously possessed probable cause. Indeed, though

the Court has never explicitly returned to the question postWhren, the Court has later made mention of brief, investigatory

stops of “persons or vehicles” in the context of reasonable

suspicion. United States v. Arvizu, 534 U.S. 266, 273 (2002).

This lends support to our understanding that Whren was not

conceived as altering the longstanding reasonable suspicion

standard recognized in the traffic-stop setting. Thus, we now

join our sister circuits in holding that the Terry reasonable

suspicion standard applies to routine traffic stops.

B

Delfin-Colina argues that, even under the permissive

reasonable suspicion standard, a mistake of law by the seizing

officer will render a traffic stop per se unreasonable under the

Fourth Amendment. For the reasons stated below, we do not

agree. 

Though reasonable suspicion is a generally undemanding

standard, a police officer does have the initial burden of

providing the “specific, articulable facts” to justify a reasonable

suspicion to believe that an individual has violated the traffic
11

laws. See Cortez, 449 U.S. at 416 (quoting United States v.

Brignoni-Ponce, 422 U.S. 873, 884 (1975)). And a reviewing

court must consider whether the “rational interferences from

those facts reasonably warrant [the] intrusion.” Terry, 392 U.S.

at 21. Ultimately, our mandate is to weigh “the totality of the

circumstances – the whole picture.” Sokolow, 490 U.S. at 8

(quoting Cortez, 449 U.S. at 417). 

The Whren Court explained that a court should undertake

an objective review of the officer’s rationale for the

investigatory traffic stop. 517 U.S. at 806. That is, a court

should only look to whether specific, articulable facts produced

by the officer would support reasonable suspicion of a traffic

infraction. In Whren, two police officers observed a truck in a

“high drug area” that had stopped at a stop sign for an excessive

amount of time. The truck then turned without signaling and

sped off. Id. at 808. The officers gave chase, and – once they

caught up with and stopped the vehicle – one officer observed

a passenger holding two bags of what appeared to be crack

cocaine. Whren argued that the stop had not been justified by

probable cause to believe that the occupants were engaged in

illegal drug activity, and that the officers’ asserted ground for

approaching the vehicle – namely, to give the driver a warning

about traffic violations – was pretextual. Id. at 809.

The Court held that a stop was reasonable under the

Fourth Amendment where officers had probable cause to believe

that the petitioner had violated the traffic code, even if the

ultimate charge was not related to the traffic stop. Id. at 808-09.

The Court explained that “[s]ubjective intentions play no role in

ordinary, probable-cause Fourth Amendment analysis,” and that
12

“we have been unwilling to entertain Fourth Amendment

challenges based on the actual motivations of individual

officers.” Id. at 813; see also Devenpeck v. Alford, 543 U.S.

146, 153 (2004) (“[The] subjective reason for making the arrest

need not be the criminal offense as to which the known facts

provide probable cause.”); Estate of Smith v. Marasco, 318 F.3d

497, 514 (3d Cir. 2003) (“Improper motive, however, is

irrelevant to the question whether the objective facts available

to the officers at the time reasonably could have led the officers

to conclude that Smith was committing an offense.” (citing

Whren, 517 U.S. at 813)). 

Taken together, then, Terry and Whren stand for the

proposition that a traffic stop will be deemed a reasonable

“seizure” when an objective review of the facts shows that an

officer possessed specific, articulable facts that an individual

was violating a traffic law at the time of the stop. In other

words, an officer need not be factually accurate in her belief that

a traffic law had been violated but, instead, need only produce

facts establishing that she reasonably believed that a violation

had taken place. Consequently, a reasonable mistake of fact

“does not violate the Fourth Amendment.” Chantasouxat, 342

F.3d at 1276; see also Illinois v. Rodriguez, 497 U.S. 177, 185

(1990) (noting that factual determinations made by government

agents need not “always be correct,” but they always have to be

“reasonable”); United States v. Tibbetts, 396 F.3d 1132, 1138

(10th Cir. 2005). 

Under this framework, though mistakes of fact are rarely

fatal to an officer’s reasonable, articulable belief that an

individual was violating a traffic ordinance at the time of a stop,
13

many of our sister circuits have held that mistakes of law – even

reasonable ones – can render a traffic stop “unreasonable” under

the Fourth Amendment. For example, in United States v. Miller,

146 F.3d 274, 279 (5th Cir. 1998), the Fifth Circuit cited Whren

for the proposition that law enforcement officers have “broad

leeway to conduct searches and seizures regardless of whether

their subjective intent corresponds to the legal justifications for

their actions,” but that, correspondingly, “the legal justification

must be objectively grounded.” Id. Consequently, the court

held that a traffic stop was unreasonable because the alleged

traffic infraction – having a turn signal on without turning – was

not a violation of Texas law. Id.; see also Tibbetts, 396 F.3d at

1138 (agreeing with Miller, the Tenth Circuit ruled, that “failure

to understand the law by the very person charged with enforcing

it is not objectively reasonable); United States v. Lopez-Valdez,

178 F.3d 282, 288-89 (5th Cir. 1999) (holding unconstitutional

a traffic stop when the trooper pulled over a car on the mistaken

belief that driving with a broken taillight violated state law). 

The Ninth Circuit, in Lopez-Soto, also agreed with the

Miller court’s rationale. In Lopez-Soto, the officer stopped the

defendant because the officer had police academy instruction

that the absence of a vehicle registration sticker visible from the

rear provided a reasonable basis for suspicion of a Baja

California traffic code violation. 205 F.3d at 1105. However,

the applicable statute, in fact, directed that the sticker be

displayed on the windshield, which is where Lopez-Soto had his

sticker. Id. at 1106. Because Lopez-Soto’s action “was not a

violation of Baja California law,” the court concluded that “the

stop before us in this case was not objectively grounded in the

governing law” and was therefore unconstitutional. Id. 
14

The Tenth Circuit, in Chantasouxat, joined the LopezSoto and Miller courts. 342 F.3d at 1277-79. In that case, an

officer performed a traffic stop because he incorrectly believed

that a truck without a rearview mirror in the car was in violation

of Alabama and Birmingham vehicle codes. Id. at 1277. The

officer who performed the stop had written over a hundred

tickets for this particular violation, had been told by a magistrate

that the lack of a rearview mirror in a car was a violation, and

had also been trained that this was the law. Id. at 1279. The

court noted that, unlike in Lopez-Soto, Lopez-Valdez, or Miller,

the officer’s mistake of law was reasonable. Id. Nonetheless,

the court concluded that the reasonableness of the mistake of

law is the “wrong question.” Id. Rather, “the correct question

is whether a mistake of law, no matter how reasonable or

understandable, can provide objectively reasonable grounds for

reasonable suspicion or probable cause.” Id. The Tenth Circuit

held that “a mistake of law cannot provide reasonable suspicion

or probable cause to justify a traffic stop.” Id. 

In each of the above cases, the specific, articulable facts

revealed that the alleged infractions upon which the vehicles

were stopped were not based in law. In other words, the

objective review of the record required by Whren showed that

the stopped individuals in each of these cases had not violated

any applicable statute or ordinance. 

What these cases do not, however, say is that a mistake

of law by a police officer renders a traffic stop per se

unreasonable. Instead, a mistake of law is only unreasonable

when the officer does not offer facts that objectively show that

the identified law was actually broken. In situations where an
15

objective review of the record evidence establishes reasonable

grounds to conclude that the stopped individual has in fact

violated the traffic-code provision cited by the officer, the stop

is constitutional even if the officer is mistaken about the scope

of activities actually proscribed by the cited traffic-code

provision. Therefore an officer’s Fourth Amendment burden of

production is to (1) identify the ordinance or statute that he

believed had been violated, and (2) provide specific, articulable

facts that support an objective determination of whether any

officer could have possessed reasonable suspicion of the alleged

infraction. As long as both prongs are met, an officer’s

subjective understanding of the law at issue would not be

relevant to the court’s determination. 

C

With these principles in mind, we hold that Trooper

Wagner possessed reasonable suspicion to conduct the traffic

stop of Delfin-Colina. Trooper Wagner testified that he was

doing traffic control when he noticed what appeared to be a

necklace or pendant hanging from the rearview mirror. The

hanging item was long enough to almost touch the dashboard,

and Trooper Wagner believed the item was not stationary and

was thus obscuring the driver’s vision. This information led

Trooper Wagner to conclude that the truck driver was violating

§ 4524(c), which provides that a motor vehicle may not be

driven “with any object or material hung from the inside

rearview mirror or otherwise hung, placed or attached in such a

position as to materially obstruct, obscure or impair the driver’s

vision through the front windshield or any manner as to

constitute a safety hazard.” Based on this understanding,
16

Trooper Wagner stopped the truck. 

Viewed objectively, Trooper Wagner has met his burden

to provide specific, articulable facts showing that an officer

would reasonably believe Delfin-Colina was in violation of §

4524(c). Section 4524(c) prohibits, inter alia, hanging items

from the rearview mirror if they “materially obstruct, obscure,

or impair the driver’s vision through the front windshield,” and

Trooper Wagner testified that he believed at the time that

Delfin-Colina’s vision was obstructed by the crucifix. More

importantly, an officer might have reasonably concluded that

such a low-hanging item would either obstruct or otherwise

impair the driver’s vision because of its potential to swing back

and forth, which was the specific concern cited by Trooper

Wagner. Indeed, because of this significant potential for

swinging to and fro, anything that hangs such that it is almost

touching the dashboard would, arguably, be a per se violation of

§ 4524(c). In any event, the legal justification is “objectively

grounded” and Trooper Wagner has met his burden of producing

specific, articulable facts showing that he possessed reasonable

suspicion of a violation under § 4524(c). Cf. Com. v. Felty, 662

A.2d 1102 (Pa. Super. Ct. 1995) (holding that an officer lacked

reasonable and articulable grounds to warrant a traffic stop

pursuant to § 4524(c) because the officer could not accurately

describe the object and, “most significantly,” the officer “never

testified that . . . the object materially obstructed, obscured, or

impaired the driver’s vision, or constituted a safety hazard”);

United States v. Johnson, 63 F.3d 242 (3d Cir. 1995)

(determining, pre-Whren, that officer’s testimony that he

conducted a traffic stop pursuant to § 4524(c) when he saw

several large air fresheners hanging from rearview mirror was
17

more than sufficient to provide the officer with “articulable and

reasonable suspicion” of a § 4524(c) violation). 

The only question then is whether Trooper Wagner’s

testimony that it was his understanding that anything hanging

from a rearview mirror constituted a violation of the

Pennsylvania Vehicle Code rendered the traffic stop

unreasonable. As the law only prohibits items attached to

rearview mirrors “in such a position as to materially obstruct,

obscure or impair the driver’s vision through the front

windshield or any manner as to constitute a safety hazard,”

Trooper Wagner made a significant mistake of law. For the

reasons given above, however, this mistake of law is

distinguishable from the ones made by the officers in Miller,

Lopez-Soto, Lopez-Valdez, and Chantasouxat because an

objective review of the facts shows that an officer who correctly

interpreted § 4524(c) and was in Trooper Wagner’s position

would have possessed reasonable suspicion to believe that

Delfin-Colina was in violation of § 4524(c). Because it is this

objective analysis that is controlling under Whren, Trooper

Wagner’s mistake of law did not render the traffic stop

unconstitutional. Holding otherwise would require this court to

engage in the type of subjective analysis that the Whren Court

singled out as irrelevant in the Fourth Amendment context. 

III. Conclusion

For the foregoing reasons, we agree with the District

Court’s order of November 10, 2004, denying Delfin-Colina’s

motion to suppress evidence obtained from Trooper Wagner’s

traffic stop. Accordingly, we will affirm the judgment of
18

conviction.