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

### March 30, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 04-3230 GERARDO ALCARAZ-ARELLANO,

Defendant - Appellant.

.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. NO. 03-CR-40015-01-SAC)

Marilyn M. Trubey, Assistant Federal Public Defende r (David J. Phillips, Federal Public Defender, with her on the brief), Topeka, Ka nsas, for the Defendant - Appellant. James A. Brown, Assistant United States Attorney (E ric F. Melgren, United States Attorney, with him on the brief), Topeka, Kansas, f or the Plaintiff - Appellee.

Before HENRY, McKAY, and HARTZ, Circuit Judges.

HARTZ , Circuit Judge.-2-

On February 11, 2003, Gerardo Alcaraz-Arellano was indicted in the United States District Court for the District of Kansas onone count of possessing with intent to distribute three kilograms of cocaine and one count of possessing with intent to distribute one kilogram of heroin. See 21 U.S.C. § 841(a)(1). He pleaded guilty to the second count. Before pleadin g guilty he had moved to suppress evidence seized during a vehicle search af ter a traffic stop and, alleging selective enforcement (racial profiling), had moved to dismiss the indictment. The district court denied both motions. Mr. Alcara z-Arellano’s plea agreement preserved his right to appeal the district court’s rulings on the motions, and he now appeals those rulings. Mr. Alcaraz-Arellano’s opening brief also raised a challenge to his sentence, but he later filed a ple ading with this court abandoning the challenge. We exercise jurisdiction under 28 U .S.C. § 1291 and affirm.
I. MOTION TO SUPPRESS A. Background On February 9, 2003, Russell County Sheriff’s Deputy Kelly Schneider, who was driving westbound on I-70, determined by ra dar that Mr. AlcarazArellano, who was driving eastbound, was driving 77 mph in a 70 mph zone. Deputy Schneider turned around to pursue Mr. Alcara z-Arellano’s car, a gold 2001 Oldsmobile Alero. He pulled alongside the carand observed two men inside, both of whom appeared to be Hispanic. He t hen directed Mr. Alcaraz--3-

Arellano to stop. Mr. Alcaraz-Arellano brought his car to the side of the highway at 2:42:20 p.m. The stop was recorded by a videore corder inside Deputy Schneider’s patrol car. Deputy Schneider exited his car, stood behind Mr. A lcaraz-Arellano’s car, and signaled to Mr. Alcaraz-Arellano to come to him . Mr. Alcaraz-Arellano complied. When Deputy Schneider asked for his lice nse, Mr. Alcaraz-Arellano retrieved his license from his car and gave it to D eputy Schneider. Deputy Schneider then asked for Mr. Alcaraz-Arellano’s registration, and Mr. AlcarazArellano again returned to his car, obtained the registration, and gave it to him. Deputy Schneider examined the documents, which show ed that Mr. AlcarazArellano was licensed to drive in New York and had purchased the car in California three days earlier. The address for Mr. Alcaraz-Arellano on the registration was in California. In response to Dep uty Schneider’s questions, Mr. Alcaraz-Arellano said that he lived in New York , had traveled to California, had stayed there one and one-half days, had purchas ed the car, and was en route back to New York. Deputy Schneider observed that M r. Alcaraz-Arellano appeared extremely nervous. At 2:44:30 p.m. Deputy Schneider returned to his patrol car. At 2:45:09 he invited Mr. Alcaraz-Arellano into the patrol car, t elling him, “let’s get you where it’s warm.” Deputy Schneider then informed Mr. Alc araz-Arellano that he was-4-

writing him a warning, which would not cost him anymoney. While he was writing the warning ticket, Deputy Schneider asked Mr. Alcaraz-Arellano when he had bought the car and what he did for a living. M r. Alcaraz-Arellano told Deputy Schneider, among other things, that he worke d in landscaping, but had not worked for two months. At 2:46:38 p.m. Deputy Schneider radioed the dispat ch operator to verify Mr. Alcaraz-Arellano’s license. The operator respo nded with the license information at 2:52:06 p.m. During that interval D eputy Schneider continued questioning Mr. Alacaraz-Arellano, asking whether h e liked his car, whether there was much snow in New York, who his passenger was, w here his passenger lived, what he typically did during the winter since he ha d not worked for a couple months, whether he owned the car, and how much he p aid for it. Mr. AlcarazArellano said that he had bought the car for $4,000

. Deputy Schneider gave Mr. Alcaraz-Arellano the warn ing ticket and bid him “adios” at 2:52:44 p.m., 10 minutes after the s top. But as Mr. AlcarazArellano was leaving the patrol car, Deputy Schneid er requested permission to ask a few more questions. Mr. Alcaraz-Arellano agr eed. Deputy Schneider asked whether he had any contraband in the car. Mr. Alca raz-Arellano replied that he did not. Deputy Schneider asked to “look in” the c ar, and Mr. Alcaraz-Arellano consented.-5-

While inspecting the trunk, Deputy Schneider notice d that its floor was green rather than gold, whereas, to his knowledge, the original undercoating almost always matches the exterior paint. He also noticed that the caulking around the floor was new, thick, and white, and that the carpet padding in the spare-tire compartment was glued to the floor , whereas in most cars the carpet padding can simply be pulled away from the floor. He then conducted a “finger test” inside the trunk, placing one hand on the ins ide of the trunk and one hand underneath the car, and tapping on the trunk to lis ten for signs of a gap between the top and the bottom. He concluded that there wa s such a gap and estimated it to be about three inches, indicating a concealed co mpartment. He told Mr. Alcaraz-Arellano that he had found a false comp artment, and that he would take the car to the sheriff’s department to be sear ched. The subsequent search revealed a hidden compartment containing three kilo grams of cocaine and one kilogram of heroin. Mr. Alcaraz-Arellano filed a motion to suppress the evidence seized during the search of his car, arguing that the traffic sto p itself was illegal because he was not speeding, that Deputy Schneider’s subsequent de tention of him was illegal because its scope and duration exceeded what was ju stified by the purpose of the stop, and that Deputy Schneider did not have reason able suspicion of criminal activity to justify the questioning during the stop. In denying Mr. Alcara z--6-

Arellano’s motion to suppress evidence, the distric t court ruled that Deputy Schneider’s stop of Mr. Alcaraz-Arellano was valid because he had reasonable suspicion that Mr. Alcaraz-Arellano was speeding, that Deputy Schneider’s further detention and questioning of Mr. Alcaraz-Ar ellano was justified by reasonable suspicion, and that Mr. Alcaraz-Arellano gave valid consent for Deputy Schneider to search his car. On appeal Mr. Alcaraz-Arellano argues that Deputy S chneider violated the Fourth Amendment by asking him questions unrelated to the initial purpose of the stop; that Deputy Schneider did not have reasonable suspicion to ask these unrelated questions; that he did not validly consen t to Deputy Schneider’s continued questioning of him after returning his li cense; that he did not validly consent to Deputy Schneider’s search of his car; an d that if the search was consensual, Deputy Schneider exceeded the scope of consent. B. Analysis Mr. Alcaraz-Arellano argues that Deputy Schneider’s detention and questioning of him violated the Fourth Amendment. The Fourth Amendment protects the “right of the people to be secure in t heir persons, houses, papers, and effects, against unreasonable searches and seizures .” U.S. Const. Amend. IV. A traffic stop is a Fourth Amendment seizure “even th ough the purpose of the stop is limited and the resulting detention quite brief. ” Delaware v. Prouse , 440 U.S.-7-

648, 653 (1979). A traffic stop is permissible und er the Fourth Amendment if “the officer has a reasonable articulable suspicion that a traffic . . . violation has occurred or is occurring.” United States v. Hunnicutt , 135 F.3d 1345, 1348 (10th Cir. 1998). “When reviewing a district court’s den ial of a motion to suppress, we consider the totality of the circumstances and view the evidence in the light most favorable to the government.” U.S. v. Gordon , 168 F.3d 1222, 1225 (10th Cir. 1999). “We accept the district court’s factual fin dings unless [they] are clearly
erroneous.” Id . “The ultimate determination of reasonableness . . . is a question of law reviewable de novo.” Id

. Deputy Schneider’s initial stop of Mr. Alcaraz-Arel lano is not challenged on appeal; he observed (with a radar device) Mr. Al caraz-Arellano driving 77 mph in a 70 mph zone. Mr. Alcaraz argues, howev er, that the stop became unlawful when Deputy Schneider asked him questions unrelated to the purpose of the stop. In United States v. Holt , 264 F.3d 1215, 1230 (10th Cir. 2001) (en banc), we stated that the reasonableness of a traff ic stop depends on both “the length of the detention and the manner in which it is carried out.” It is reasonable for an officer to ask questions about the motorist’ s travel plans and authority to operate the vehicle. United States v. Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005). Although Holt held that further questioning is justifiable only i f it is reasonable in relation to the initial purpose of th e traffic stop, Holt , 264 F.3d at-8-

1228, the scope of this holding has been limited by the Supreme Court’s decision in Muehler v. Mena , 544 U.S. 93, 125 S. Ct. 1465 (2005).
In Muehler the Supreme Court upheld the police officers’ quest ioning of Ms. Iris Mena, whom they were detaining while they executed a search warrant in the house she occupied; the questioning related to her immigration status, a matter unrelated to the purpose of the search. Id . at 1471. The court of appeals had ruled the questioning unconstitutional, apparently on the ground that “the officers were required to have independent reasonable suspic ion in order to question Mena . . . because the questioning constituted a di screte Fourth Amendment
event.” Id . The Supreme Court reversed. It stated that “mer e police questioning does not constitute a seizure” under the Fourth Ame ndment. Id. (internal quotation marks omitted). “Even when officers have no basis for suspecting a particular individual, they may generally ask quest ions of that individual; ask to examine the individual’s identification; and reques t consent to search his or her luggage.” Id . (internal quotation marks and brackets omitted). As Ms. Mena’s detention was not prolonged by the questioning, the questioning did not create an additional seizure. Id . The Court analogized questioning during a search to performing a dog sniff during a traffic stop, whichdoes not violate the Fourth Amendment if it does not extend the stop “‘beyond t he time reasonably required to complete [the stop’s original purpose].’” Id . (quoting Illinois v. Caballes , 543-9-

U.S. 405, 125 S. Ct. 834, 837 (2005)). The Court c oncluded: “[T]he Court of Appeals did not find that the questioning extended the time Mena was detained. Thus no additional Fourth Amendment justification f or inquiring about Mena’s immigration status was required.” Id . at 1471-72. In light of Muehler , we have held that “[a]s long as the [deputy’s] questioning did not extend the length of the detention, . . . there is no Fourth Amendment issue with respect to the content of the questions.” United States v. Wallace , 429 F.3d 969, 974 (10th Cir. 2005). Applying this law, we first address Deputy Schneide r’s questioning of Mr. Alcaraz-Arellano before returning his license. This questioning can be divided into three intervals: the initial encounteroutside the cars, the time during which Deputy Schneider was writing the warning tick et, and the time while Deputy Schneider was waiting for the dispatch operator to verify Mr. AlcarazArellano’s license. During the first interval Deputy Schneider asked only a few questions about travel plans and vehicle ownership before going to his patrol car to issue a warning. Such limited questioning is pr oper, because an officer may routinely ask about travel plans and ownership duri ng a lawful traffic stop. See Bradford, 423 F.3d at 1156. During the second interval Deputy Schneider questioned Mr. AlcarazArellano in the patrol car while he was writing the warning ticket. This questioning was not limited to travel plans and own ership of the vehicle, but it-10-

did not appreciably lengthen the detention and ther efore the Fourth Amendment requires no justification. See Wallace , 429 F.3d at 974. As Mr. Alcaraz-Arellano entered the patrol car, Deputy Schneider told him t hat he was writing a warning ticket. Deputy Schneider testified at the suppress ion hearing that he was writing the warning ticket while Mr. Alcaraz-Arellano was i n the patrol car. Writing the warning ticket occupied two minutes, one minute and 29 seconds of which was while Mr. Alcaraz-Arellano was sitting in the patro l car. Even if this task might have been performed slightly faster had Deputy Schn eider not been asking questions, the time involved was not “beyond the ti me reasonably required to complete that [task].” Caballes , 125 S. Ct. at 837; see United States v. Martin , 422 F.3d 597, 601-02 (7th Cir. 2005) (“A traffic st op does not become unreasonable merely because the officer asks questi ons unrelated to the initial purpose for the stop, provided that those questions do not unreasonably extend the amount of time that the subject is delayed.”); United States v. Childs , 277 F.3d 947, 949 (7th Cir. 2002) (en banc) (“questions thatdo not increase the length of detention (or that extend it by only a brief time) do not make the custody itself unreasonable”). Therefore, this questioning was lawful. As for the third interval, the period Deputy Schnei der questioned Mr. Alcaraz-Arellano while he was waiting for the r adio dispatcher to verify Mr. Alcaraz-Arellano’s license (2:46:38 p.m. throug h 2:52:16 p.m.), the license-11-

check itself was permissible, see Holt , 264 F.3d at 1221 (“[D]uring a routine traffic stop the officer may ask to see a driver’s license and registration and check that they are valid.”), and the questioning did notprolong the detention while the license check was being performed. As a result, th e questioning, regardless of the topic, did not violate the Fourth Amendment. In sh ort, we reject Mr. AlcarazArellano’s challenges to the questioning before his license was returned. The questioning after the return of the license, ho wever, must be analyzed differently because it did prolong the stop. After Deputy Schneider returnedthe documentation to Mr. Alcaraz-Arellano and said “adi os,” he requested permission from Mr. Alcaraz-Arellano to ask a few more questio ns. Mr. Alcaraz-Arellano agreed and then consented to a search of his car. He contends that this questioning impermissibly extended the traffic stop . We disagree. The additional questioning could be justified if the encounter at this point was consensual, see United States v. Elliott , 107 F.3d 810, 814 (10th Cir. 1997), or if prolong ation of the stop was supported by reasonable suspicion, Wallace , 429 F.3d at 974. Because the district court did not address the poss ibility of consent, we consider only reasonable suspicion. Reasonable suspicion is a “particularized and objective basis for suspecting the person stopped o f criminal activity.” Ornelas v. United States , 517 U.S. 690, 696 (1996) (internal quotation mark s omitted). It “represents a ‘minimum level of objective justification’ which is ‘considerably-12-

less than proof of wrongdoing by a preponderance of the evidence.’” United States v. Mendez , 118 F.3d 1426, 1431 (10th Cir. 1997) (quoting United States v. Sokolow , 490 U.S. 1, 7 (1989).) In our view, Deputy Schne ider possessed reasonable suspicion. Although the district court ruled that Deputy Schne ider had acquired reasonable suspicion to detain Mr. Alcaraz-Arellano for questioning at some point during their conversation in the patrol car, we nee d address only whether there was reasonable suspicion when Deputy Schneider retu rned the license to Mr. Alcaraz-Arellano. By that time, Deputy Schneid er had the following information: Mr. Alcaraz-Arellano said that he had driven across the country from New York to California for a one-and-a-half-day vis it during which he purchased a not-unusual used vehicle for $4,000; he told Deputy Schneider that he lived in New York, but the vehicle registration showed a Cal ifornia address; he was unemployed; and he was extremely nervous. We agree that it was implausible that an unemployed New Yorker would innocently driv e to California from New York, visit there for less than two days, purchase a vehicle (giving a California address for the registration), and then drive back. Deputy Schneider thus had reasonable suspicion to detain Mr. Alcaraz-Arellano for further investigation after returning his license and registration . See United States v. Santos , 403 F.3d 1120, 1129 (10th Cir. 2005) (“Implausible travel pl ans can contribute to-13-

reasonable suspicion.”); United States v. McRae , 81 F.3d 1528, 1534-35 (10th Cir. 1996) (apparent contradiction between dates ondefendant’s car rental agreement and alleged travel plans contributed to r easonable suspicion); United States v. Kopp , 45 F.3d 1450, 1453-54 (10th Cir. 1995) (officer h ad reasonable suspicion to detain motorist in part because he “di d not find it plausible that Defendant would drive from California to North Carolina merely to take a very dilapidated sofa to some friends”). Finally, Mr. Alcaraz-Arellano challenges Deputy Sch neider’s search of his car. He argues that his consent was invalid becaus e it was the fruit of an unlawful detention. But this argument fails because we have held that t he detention was lawful. He also argues that his cons ent was involuntary. But the record does not indicate that he argued voluntarine ss in district court, except, perhaps, on the ground that he did not adequately u nderstand English, an argument not raised on appeal. Ordinarily we do no t address arguments not made below. United States v. Moore , 22 F.3d 241, 243 n.3 (10th Cir. 1994) (“We will not address issues raised for the first time on app eal, on which no adequate record was created below.”). That practice is particularl y appropriate here, because his failure to raise the argument below deprives us of any fact finding on the matter by the district court. Accordingly, we will not co nsider the issue of voluntariness. Mr. Alcaraz-Arellano further argues, however, that even if the consent was-14-

valid, the search was illegal because the scope of his consent was exceeded when the car was transported to the sheriff’s departmentand dismantled. It is not clear whether Mr. Alcaraz-Arellano raised this issue in d istrict court. It appears that all he argued was that he consented only to a mere peekinside, and not to the search conducted while the car was by the side of the high way. But the government does not claim that the issue was not preserved, so we w ill give Mr. Alcaraz-Arellano the benefit of the doubt and address it. Mr. Alcaraz-Arellano may be correct that his consen t did not extend to transporting the car to the sheriff’s department an d dismantling it there. But consent was unnecessary because these actions were supported by probable cause. A police officer may conduct a warrantless search o f an automobile if there is “probable cause to believe that the vehicle contain s contraband or other evidence which is subject to seizure under law.” United States v. Mercado , 307 F.3d 1226, 1230 (10th Cir. 2002) (internal quotation marks omi tted). Deputy Schneider discovered in the initial vehicle search that there was probably a concealed compartment in the car. “It is well established th at evidence of a hidden compartment can contribute to probable cause to sea rch.” United States v. Jurado-Vallejo , 380 F.3d 1235, 1238 (10th Cir. 2004) (internal qu otation marks omitted). In Jurado-Vallejo we held that “[w]hether probable cause to search a vehicle can be based on evidence of a hidden compartment depends on two-15-

factors: (1) the probative value of the evidence—t hat is, the likelihood that there really is a hidden compartment; and (2) the likelih ood that a vehicle with a hidden compartment would, in the circumstances, be secreti ng contraband.” Id . Deputy Schneider testified that based on the unexpected co lor of the car’s undercoating (it was green, not gold like the outside of the car ); the new thick, white caulking around the floor; the gluing down of the trunk carp et padding; and the observations from his “finger test,” he knew from h is training and experience that there was a hidden compartment in the car. He also testified that he had found about 50 concealed compartments in vehicles over th e course of his career and all but one contained contraband. The district court a ccepted this testimony. This evidence satisfies both Jurado-Vallejo factors in determining probable cause. See id . Deputy Schneider’s transportation of the car to the sheriff’s department and subsequent search was therefore lawful. See United States v. Zucco , 71 F.3d 188, 191-92 (5th Cir. 1995) (“If supported by probable c ause, every part of a vehicle which may conceal the object of the search may be s earched.”); see also Mercado , 307 F.3d at 1231 (officer’s dismantling of the alte red ceiling of a van to search hidden compartment was legal because supported by p robable cause). Thus, the district court did not err in denying Mr. Alcaraz-A rellano’s motion to suppress.
II. MOTION TO DISMISS A. Background-16-

Mr. Alcaraz-Arellano filed a motion to dismiss the indictment for selective enforcement, arguing that Deputy Schneider’s decisi on to stop him was based, at least in part, on his race. He also requested disc overy regarding selective enforcement, seeking information on various policie s governing the Russell County Sheriff’s Department, including policies to guard against racial profiling and document-retention policies; personnel files of Deputy Schneider and any records regarding racial-profiling complaints again st him; records of Deputy Schneider’s vehicle stops from the beginning of 200 0 until February 9, 2003; and materials relating to Deputy Schneider’s drug-inter diction training. At the hearing on the motion to dismiss, the partie s stipulated to admitting into evidence the record of the hearing in United States v. Mesa-Roche , 288 F. Supp. 2d 1172 (2003), on a similar motion to dis miss for racial profiling. That hearing focused on a study commissioned by the Kans as legislature and released in early 2003 (the Lamberth study). The Lamberth s tudy examined stops made by law-enforcement officers in several Kansas metropol itan areas and along certain stretches of interstate highway in Kansas. The hig hway stops included in the study occurred between October 2001 and March 2002. The study attempted to compare the proportion of drivers of certain racial or ethnic groups stopped by police officers (stop data) to the proportion of dr ivers who belonged to those groups (benchmark data). Among the findings was th at on I-70 between the-17-

Colorado border and mile marker 50 (near Colby, Kan sas), 6.8% of stops made by the Kansas Highway Patrol were of Hispanics, while the proportion of Hispanics traveling on that stretch of highway was only 1.8%. Mr. Alcaraz-Arellano also presented data regarding traffic stops and arrests by officers in the Russell County Sheriff’s Departm ent, including (1) records of Deputy Schneider’s stops, which showed that 33.69% of those he stopped between September 2000 and April 2003 were Hispanic; and (2 ) a report showing that during January through October 2002, in cases invol ving Deputy Schneider, 57% of the people arrested for drug crimes after being stopped for traffic violations were Hispanic. In district court and on appeal Mr. Alcaraz-Arellano did not compare these percentages to those of fellow office rs except that at oral argument in this court his counsel pointed out that Deputy B auske did not stop any Hispanics in 2000. The district court denied Mr. Alcaraz-Arellano’s mo tion to dismiss. The court noted that “[a]lthough [Mr. Alcaraz-Arellano’ s] motion is styled as a motion regarding selective prosecution, . . . it is in fac t a motion regarding selective enforcement [because it] challenges the decision an d actions of the law enforcement officer, not the exercise of discretion by the prosecutor.” Vol. I, Doc. 70 at 16. It ruled that he did not carry his burden of producing “some-18-

evidence” of discriminatory effect and discriminato ry intent as required by United States v. Armstrong , 517 U.S. 456, 468-69 (1996). Relying in part on testimony at the Mesa-Roche hearing by Dr. Brian Withrow, a professor of Criminal Justice at WichitaState University, the district court found the Lamberth study to be “irrelevant an d unreliable.” Vol. I , Doc. 70 at 23. It pointed out that the Russell County Sher iff’s Department did not participate in the study and that Deputy Schneider had not worked in any of the areas covered in the study. (In fact, the record s hows that Mr. Alcaraz-Arellano was stopped at mile marker 188 in Russell County, at least 138 miles east of the western portion of 1-70 canvassed by the Lamberth s tudy , and more than 160 miles from the eastern portion of 1-70 canvassed bythe study.) The court said that data regarding highway travelers in other coun ties would be transferable to Russell County only under the assumption that the p ercentages of racial groups in the population and among drivers are the same in bo th locations, but Mr. AlcarazArellano had shown no reason to make such an assump tion. It also doubted the accuracy of the benchmark data in the counties stud ied. The court declared that (1) the study did not include an appendix showing h ow the data was collected in the field, (2) the sample size was “too small to pr ovide reliable statistical results,” id. at 25, and (3) the surveyors’ attempts to determine the ethnicity of drivers were based on “subjective and swift, if not split-s econd observations” and was-19-

therefore not reliable, id . In addition, the court said that the stop data w as untrustworthy because the law enforcement agencies and the areas included in the study were not selected at random and because the l aw enforcement officers who recorded the stop data knew that their activity was being observed. The court further stated that even if the study was accepted as reliable, its results did not necessarily show racial profiling b ecause racial or ethnic groups may not commit traffic violations in exact proporti on to their representation on the highway. Finally, the court said that the arre st statistics could not satisfy Mr. Alcaraz-Arellano’s burden under United States v. James , 257 F.3d 1173, 1179 (10th Cir. 2001), to show that “‘a similarly-situat ed individual of another race could have been, but was not, arrested or referred for federal prosecution for the offense for which the defendant was arrested and re ferred,’” Vol. I, Doc. 70 at 31 (quoting James , 257 F.3d at 1179). For the arrest statistics to be relevant to Mr. Alcaraz-Arellano’s case, they would have to sho w “that non-Hispanics stopped for traffic violations were not detained an d searched, even if they displayed indicators of drug trafficking, while sim ilarly situated Hispanics [ sic ] drivers were detained and searched.” Id. at 32. As for the evidence specifically relating to Deputy Schneider, the court said that records of arrests and charges had no bearing on Mr. Alcaraz-Arellano’s claims of selective stops . The court also found unremarkable the evidence t hat-20-

Deputy Schneider stops Hispanics more frequently th an other Russell County officers, as Officer Schneider patrols I-70 almost exclusively, while the other officers patrol the surrounding city and county of Russell, and “there are more Hispanics traveling on I-70 than there are living i n the surrounding city and county of Russell.” Id. at 33-34. The court decided that any comparison be tween the Hispanic component of stops made by the Kansas Highway Patrol on the 50-mile stretch of I-70 near Colby (6.85%) and the Hispanic component of stops made by Officer Schneider (33.69%) would be invalidbecause he had found that the Lamberth study was fatally flawed. In sum, the court ruled that Mr. AlcarazArellano’s statistics were insufficient to show dis criminatory effect. The district court was also unpersuaded that Mr. Al caraz-Arellano had produced evidence of discriminatory intent. The co urt said that in order to show discriminatory intent, Mr. Alcaraz-Arellano must “p resent some non-statistical evidence to demonstrate that Deputy Schneider acted with discriminatory intent when he stopped defendant.” Id. at 36. It noted that Deputy Schneider “is not alleged to have engaged in any racial language or a ctions other than the stop itself.” Id . at 36-37. The court considered the Lamberth study to be irrelevant to discriminatory intent because it did not attempt to show that the observe d lawenforcement officers knew the race of drivers befor e making the decision to stop them.-21-

B. Analysis Mr. Alcaraz-Arellano appeals the district court’s d enial of his selectiveenforcement motion to dismiss and his accompanying motion for discovery. The “Constitution prohibits selective enforcement of th e law based on considerations such as race.” Whren v. United States , 517 U.S. 806, 813 (1996); see Wayte v. United States , 470 U.S. 598, 608 n.9 (1985) (ban on discriminato ry law enforcement applies to the federal government underthe Fifth Amendment). “Racially selective law enforcement violates this n ation’s constitutional values at the most fundamental level; indeed, unequal application of criminal law to white and black persons was one of the central evils addr essed by the framers of the Fourteenth Amendment.” Marshall v. Columbia Lea Reg’l Hosp. , 345 F.3d 1157, 1167 (10th Cir. 2003). The Supreme Court has held that a person making a s elective-prosecution claim must establish two elements: “[1] the federa l prosecutorial policy had a discriminatory effect and [2] it was motivated by adiscriminatory purpose.” Armstrong , 517 U.S. at 465 (internal quotation marks omitted ). “To establish a discriminatory effect in a [ selective-prosecution ] race case, the claimant must show that similarly-situated individuals of a diffe rent race were not prosecuted.” Id . The elements are essentially the same for a selective-enforcementclaim. A defendant “challenging alleged racial discriminatio n in traffic stops and arrests-22-

must present evidence from which a jury could reaso nably infer that the law enforcement officials involved were motivated by a discriminatory purpose and their actions had a discriminatory effect.” Marshall v. Columbia Lea Reg’l Hosp. , 345 F.3d 1157, 1168 (10th Cir. 2003). To satisfy the discriminatory-effect element, one who claims selective enforcement “must. . . make a credible showing that a similarly-situated individual of ano ther race could have been, but was not, [stopped or] arrested . . . for the offens e for which the defendant was [stopped or] arrested . . . .” James , 257 F.3d at 1179. And the discriminatorypurpose element requires a showing that discriminat ory intent was a “motivating factor in the decision” to enforce the criminal law against the defendant. Marshall , 345 F.3d at 1168. Discriminatory intent can be s hown by either direct or circumstantial evidence. See United States v. Deberry , 430 F.3d 1294, 1299 (10th Cir. 2005). The standard for proof of a selective-prosecution c laim is a “demanding”

one, Armstrong , 517 U.S. at 463, because a selective-prosecution claimant is requesting the judiciary to exercise power over a “ special province” of the executive branch, id . 464, and judicial review of prosecutorial decisio ns could “chill law enforcement by subjecting the prosecutor ’s motives and decisionmaking to outside inquiry, and may undermin e prosecutorial effectiveness by revealing the Government’s enforcement policy,” id. at 465 (internal quotation-23-

marks omitted). Similar caution is required in rev iewing a claim of selective law enforcement. “[C]harges of racial discrimination . . . may be easy to make and difficult to disprove.” Marshall , 345 F.3d at 1167. Executive-branch officials possess broad discretion in determining when to mak e a traffic stop or an arrest. See id . Judicial interference with law-enforcement discretion might “induce police officers to protect themselves against false accusations in ways that are counterproductive to fair and effective enforcementof the laws,” such as by directing law-enforcement resources away from minor ity neighborhoods. Id

. Accordingly, the standard for proving a selective-e nforcement claim should be, as with selective-prosecution claims, “a demanding one .” Marshall , 345 F.3d at 1167, (quoting Armstrong , 517 U.S. at 463). For similar reasons discovery is limited. As we st ated in James , “the showing necessary to obtain discovery for a selecti ve prosecution defense must ‘itself be a significant barrier to the litigation of insubstantial claims.’” James , 257 F.3d at 1178 (quoting Armstrong , 517 U.S. at 464). Although defendants seeking discovery need not establish a prima facie case of selective prosecution, id. at 1178, they must satisfy a “rigorous standard,” Armstrong , 517 U.S. at 468. They must produce “some evidence” of both discrimin atory effect and discriminatory intent. Armstrong , 517 U.S. at 470; accord United States v. Bass ,-24-

536 U.S. 862, 863 (2002) (per curiam). In James we applied this standard to a claim of selective enforcement. See id. at 1178-81. We review for abuse of discretion the district court's grant or denial of a motion to dismiss an indictment. United States v. Furman , 31 F.3d 1034, 1037 (10th Cir. 1994). In James , 257 F.3d at 1178, we reviewed a selectiveprosecution discovery order de novo rather than for abuse of discretion. We distinguished Furman on the grounds that the defendant in James was seeking discovery rather than dismissal and that review of the discovery order involved only a determination of the legal adequacy of the e vidence rather than a determination of facts. See id. at 1178. When, however, as in this case, the decision regarding discovery properly rests on fact -finding, we review the findings under the clearly-erroneous standard. Cf. English v. Cody , 241 F.3d 1279, 1282 (10th Cir. 2001) (we review a “district court’s legal conclusions de novo and its factual findings under the clearly err oneous standard.” (internal quotation marks omitted)). Mr. Alcaraz-Arellano’s claims fail on the intent pr ong of the tests for dismissal and discovery. He attempts to prove inte nt through statistical evidence of a discriminatory effect. He argues that the “sh eer disparity” between the percentage of Hispanics on the road and the percent age of Hispanics stopped shows that Deputy Schneider targets them. Aplt. Br . at 40. See Int’l Bhd. of-25-

Teamsters v. United States , 431 U.S. 324, 339 n.20 (1977) (“Statistics showin g racial or ethnic imbalance are probative . . . beca use such imbalance is often a telltale sign of purposeful discrimination”). Here , however, we have direct evidence of Deputy Schneider’s motivation in stoppi ng Mr. Alcaraz-Arellano. At the hearing on the motion to dismiss, Deputy Schnei der testified that he had decided to stop Mr. Alcaraz-Arellano as soon as he had determined by radar that he was speeding. The district court accepted Deputy Schneider’s testimony, stating: “[Deputy Schneider] noticed a gold car traveling eastbound, and determined by radar that it was going 77 m.p.h. in a 70 m.p.h. zone. Deputy Schneider routinely stops cars going that speed . . . and decided to stop this one as well.” Vol. I, Doc. 70 at 1. Mr. Alcaraz-Arellano contends that Deputy Schneider does not make a decision based solely on speeding but also considers the driver’s ethnicity. He points to Deputy Schnei der’s practice of pulling alongside the vehicle to look inside before executi ng a stop, thus allowing him to determine the race of the individuals inside. He a lso notes the disproportionate number of Hispanic drivers that Deputy Schneider st ops—34% of his stops in a two-year period were of Hispanics. This evidence h as substantial appeal. But we defer to the factfinder’s evaluation of credibility

. See Anderson v. City of Bessemer City , 470 U.S. 564, 575 (1985). And the district court ’s finding that the decision to stop Mr. Alcaraz-Arellano’s car was mad e before Deputy Schneider1 Although direct evidence establishes that Deputy S chneider was not

motivated by race in his decision to stop Mr. Alcar az-Arellano, the stop statistics that Mr. Alcaraz-Arellano has presented are disturb ing. We assume that in future investigations federal prosecutors will take the ut most care to assure themselves that racial profiling is not lurking behind such st atistics. -26- drove up to it forecloses any possibility that he m ade the decision to stop based on Mr. Alcaraz-Arellano’s ethnicity. Mr. Alcaraz-Arel lano does not argue that Deputy Schneider could have determined Mr. Alcaraz- Arellano’s ethnicity at the time of the radar reading, when the vehicles were approaching one another at something like 140 mph. Because the district court made a factual finding t hat Deputy Schneider made the decision to stop Mr. Alcaraz-Arellano befo re knowing his ethnicity, he cannot satisfy the discriminatory-intent prong of t he Armstrongstandard for obtaining discovery or dismissal on the basis of se lective enforcement. Perhaps Mr. Alcaraz-Arellano could have convinced the distr ict court otherwise if he were able to obtain the requested discovery. But he doe s not argue on appeal how discovery would help in that regard, and it is not apparent to us. The data on Deputy Schneider presented to us by Mr. Alcaraz-Are llano indicates that he already possesses the relevant information regardin g Deputy Schneider’s stops and arrests. The district court did not abuse its discretion in denying discovery 1 Having held that Mr. Alcaraz-Arellano failed to pre sent evidence satisfying Armstrong ’s discriminatory-intent prong, we need not address whether the-27-

evidence he presented satisfied the discriminatory- effect prong. See James , 257 F.3d at 1181.
III. CONCLUSION Deputy Schneider’s detention of Mr. Alcaraz-Arellan o and his search of the car did not violate the Fourth Amendment. Therefor e, we AFFIRM the district court’s denial of the motion to suppress evidence. Also, Mr. Alcaraz-Arellano has not satisfied his burden to present some eviden ce of discriminatory intent, so we AFFIRM the order of the district court denying h is motions to dismiss and for discovery.