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

### December 13, 2005

Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 05-4064 EMILIANO W. ALVARADO a/k/a Alvarado-Guerra,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D.C. NO. 04-CR-134-DAK)
Stephen R. McCaughey, Salt Lake City, Utah, for Def endant - Appellant. Diana Hagen, Assistant United States Attorney, Paul M. Warner, United States Attorney, District of Utah, Salt Lake City, Utah, f or Plaintiff - Appellee.

BeforeBRISCOE , ANDERSON , andO’BRIEN , Circuit Judges.

ANDERSON , Circuit Judge.

Emiliano Alvarado entered a conditional plea of gui lty to one count of possessing cocaine with intent to distribute, in vi olation of 21 U.S.C. § 841(a)(1),1 Although it has no relevance to our analysis in thi s case, we note that in

2005, Utah Code Ann. § 41-6-61 was renumbered and amended by changing its wording to active voice. See Utah Code Ann. § 41-6a-710(1)(a). We refer herein to the provision as it existed at the time o f the vehicle stop in question. -2- reserving his right to appeal the district court’s denial of his motion to suppress. He now appeals that ruling, arguing that the distri ct court erred in holding that the police stop of his vehicle was reasonable basedon a single instance of crossing over the right fog line of the highway, wh ere the relevant Utah statute requires driving “as nearly as practical entirely w ithin a single lane.” Utah Code Ann. § 41-6-61(1). 1 We affirm.

BACKGROUND At approximately 3 p.m. on February 19, 2004, Utah Highway Patrol Trooper Nick Bowles was driving eastbound on Inters tate 70 and observed a Jeep Cherokee, which Alvarado was driving, cross “about a foot” over the right fog line of the highway, continue traveling over the li ne “for a few seconds,” and then cross back to the righthand lane. Mot. to Sup press Hr’g, R. Vol. II at 5. According to Trooper Bowles’ testimony and the find ings of the district court, “[i]t was a clear and sunny day with no wind or oth er adverse weather conditions.” Mem. Decision & Order at 2, R. Vol. I . The highway at that location “was straight and flat” and “was dry at th e time,” with “no pot holes,-3-

debris, or other obstructions in the roadway.” Id. Based on these “ideal driving conditions,” id. , Trooper Bowles testified that he “felt there was no reason” for the Jeep “to be crossing the line” and was therefor e “concerned that [the driver] might be impaired or fatigued.” Mot. to Suppress H r’g, R. Vol. II at 5. According to Trooper Bowles, the majority of accide nts that he had handled on Interstate 70 involved “single vehicle rollovers, m ost of which are caused by vehicles crossing the fog line, either they never c orrect themselves and go off or else they over-correct and come back on and roll.” Id. at 20. Trooper Bowles was also aware that failing to maintain one’s vehic le in a single lane was a traffic infraction under Utah state law. Thus, after observing the Jeep cross the fog line, Trooper Bowles “turned on his emergency lights and pulled over [Alvarado]. ” Mem. Decision & Order at 2, R. Vol. I. Trooper Bowles asked Alvarado to sitin the front passenger seat of the patrol car, where the trooper asked him about h is travel plans while dispatch ran a check on Alvarado’s license, registration, an d criminal history. Trooper Bowles then gave Alvarado a written warning for cro ssing the fog line, returned Alvarado’s documents, and told him “you’re free to leave, drive safely.” Id. at 4. As Alvarado was returning to the Jeep, Trooper Bowl es asked him if he could talk with him for another minute. Alvarado agreed. Subsequently, the trooper asked Alvarado for permission to search the vehicle, and Alvarado-4-

consented. During the search, Trooper Bowles disco vered illegal narcotics hidden in the rear of the Jeep and consequently pla ced Alvarado under arrest. Alvarado was charged with one count of possession w ith intent to distribute 500 grams or more of cocaine, in violati on of 21 U.S.C. § 841(a)(1). He moved to suppress the evidence of drugs, arguingthat his initial stop was illegal, that he had not given valid consent to search the vehicle, and that the trooper did not have probable cause to search or de tain the vehicle. In denying this motion, the district court reasoned that Troop er Bowles was justified in stopping the Jeep because Utah Code Ann. § 41-6-61( 1) required remaining in a single lane “as nearly as practical,” and “the reco rd in this case does not contain evidence of other conditions or circumstances that would make it impractical for [Alvarado] to drive the vehicle within a single lan e.” Mem. Decision & Order at 10, R. Vol. I. The court therefore held that the initial stop was reasonable under the Fourth Amendment because it was supported by a reas onable articulable suspicion that Alvarado was in violation of the Utah statute. The court further held that the traffic stop became a consensual enco unter after Alvarado’s documents were returned and he was told he was free to leave, and that Alvarado voluntarily consented to the search of the Jeep. A lvarado then entered a plea of guilty to the single count in the indictment but re served his right to appeal the-5-

district court’s order denying his motion to suppre ss. He filed a timely notice of appeal of that order, raising only the issue of the reasonableness of the initial stop.

DISCUSSION In reviewing a district court’s denial of a motion to suppress evidence, “we accept the factual findings of the district court, and its determination of witness credibility, unless they are clearly erroneous.” U nited States v. Cline , 349 F.3d 1276, 1286 (10th Cir. 2003) (internal quotation omi tted). “In conducting our review, we consider the evidence in the light most favorable to the district court’s ruling.” United States v. Zabalza , 346 F.3d 1255, 1258 (10th Cir. 2003). However, “[w]e review de novo the ‘ultimate determi nation of reasonableness under the Fourth Amendment.’” Cline , 349 F.3d at 1286 (quoting United States v. Cervine , 347 F.3d 865, 868 (10th Cir. 2003)). Alvarado’s sole argument on appeal relates to the r easonableness of Trooper Bowles’ initial stop of his vehicle. We have held that, in order to satisfy the Fourth Amendment’s reasonableness requirement, a law enforcement officer “‘must have an objectively reasonable articulable s uspicion that a traffic violation has occurred or is occurring before stopping [an] automobile.’” Cervine , 347 F.3d at 869 (quoting United States v. Soto , 988 F.2d 1548, 1554 (10th Cir.-6-

1993)). Thus, “[w]hen evaluating the reasonablenes s of the initial stop [of a vehicle], ‘[o]ur sole inquiry is whether this parti cular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.’” Zabalza , 346 F.3d at 1258 (quoting United States v. Botero-Ospin a , 71 F.3d 783, 787 (10th Cir. 1995) (en banc)) (further quotation omitted). Here, the relevant Utah statute in effect at the ti me of the stop provided that “[a] vehicle shall be operated as nearly as pr actical entirely within a single lane.” Utah Code Ann. § 41-6-61(1). We have previ ously addressed the validity of traffic stops in relation to this statute and a similar Kansas statute, Kan. Stat. Ann. § 8-1522 (requiring vehicles to be driven “as nearly as practicable entirely within a single lane”), in a number of cases. In U nited States v. Gregory , 79 F.3d 973 (10th Cir. 1996), the officer had stopped a tru ck after it “briefly crossed into the right shoulder emergency lane” where “[t]he roa d was winding, the terrain mountainous and the weather condition was windy.” Id. at 978. We held that the stop was unreasonable in light of the Utah statute’ s qualification that vehicles remain in a single lane only “as nearly as practica l,” reasoning that under the particular weather and road conditions present on that occasion, “any vehicle could be subject to an isolated incident of moving into the right shoulder of the roadway, without giving rise to a suspicion of crim inal activity.” Id. ; see-7-

Cervine , 347 F.3d at 869 (interpreting Gregory ); see also State v. Bello , 871 P.2d 584, 587 (Utah Ct. App. 1994) (holding that an offi cer improperly stopped a truck for briefly moving out of its lane because Ut ah Code Ann. § 41-6-61(1) was not violated by a single instance of weaving where it was “extremely windy” and the truck had a camper shell “that caused it to cat ch the wind more easily than other vehicles”). Subsequent to our decision in Gregory , we have emphasized that that case does not “stand[] for the proposition that a single instance of drifting onto the shoulder can neverbe a violation of a traffic statute like section [ 41-6-61(1)].” Cline , 349 F.3d at 1287. Rather, a court must “analyze objectively all the surrounding facts and circumstances to determine wh ether” the officer had reasonable suspicion that a violation of the statut e had occurred. United States v. Ozbirn , 189 F.3d 1194, 1198 (10th Cir. 1999). Thus, in O zbirn , we held the traffic stop was reasonable where no “adverse physi cal conditions existed” and the driver of a motor home passed over onto the sho ulder “twice within a quarter mile.” Id. We reached the same conclusion in Zabalzawhere the officer observed the vehicle cross the center line twice, 3 46 F.3d at 1258, and in Cline where the officer observed the truck “swerve” onto the shoulder of the road, nearly hitting a bridge abutment, 349 F.3d at 1287.-8-

Here, as indicated above, the district court found that, similar to the situation in Ozbirn , Zabalza , and Cline , there were no adverse weather or road conditions that might have made it impractical for Alvarado to prevent his vehicle from drifting out of the righthand lane andover the fog line. Based on our review of the record, this finding is not clear ly erroneous. Alvarado attempts to distinguish the circumstances of this stop from those present in the abovementioned cases in that here, unlike in Cline , there were no “roadside structures that would have alerted him of the need to stay cle ar of the shoulder of the road,” and, unlike in Ozbirn , “Alvarado’s vehicle crossed the fog line only onc e.” Appellant’s Br. at 9. We are unpersuaded that these distinctions warrant a different conclusion in this case. Alvarado has failed to point to any objective factor that might have made it impractical for him to remain in a single l ane. Rather, his argument rests solely on the proposition that “[a] reasonable driv er operating a motor vehicle at or near interstate speed limits has a difficult tas k of operating the vehicle entirely within a single lane for the entirety of his trip” and that “[v]ehicles traveling at interstate speeds, even with optimal road and weath er conditions, do not typically stay in the exact center of the lane.” Id. at 11. Essentially, Alvarado asks us to hold that an officer must observe something more th an a single lane crossing in order to reasonably suspect a violation of Utah Cod e Ann. § 41-6-61(1) has-9-

occurred because any driver on the highway might in advertently cross out of his lane once, regardless of the conditions that are pr esent. However, as explained above, we have already rejected the argument that the “as nearly as practical” qualification in § 41-6-61(1) requires the conclusi on, as a matter of law, that a single instance of crossing over the fog line can n ever violate the statute. Rather, as previously discussed, we understand it to requir e a fact-specific inquiry into the particular circumstances present during the inc ident in question in order to determine whether the driver could reasonably be expected to maintain a straight course at that time in that vehicle on that roadway

. Under the particular facts and circumstances of thi s case, where there is an utter absence of any weather conditions, road featu res, or other circumstances that could have interfered with Alvarado’s ability to keep his vehicle in a single lane, we hold that Trooper Bowles had a reasonable articulable suspicion that Alvarado, by crossing one foot over the fog line, h ad violated § 41-6-61(1). The initial stop of Alvarado’s Jeep was therefore reaso nable under the Fourth Amendment. Because Alvarado raises no other object ion on appeal, we therefore affirm the district court’s order.

CONCLUSION-10-

For the foregoing reasons, the district court’s den ial of Alvarado’s motion to suppress is AFFIRMED.