F I LED

United States Court of Appeals

Tenth Circuit

July 12, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 06-1222

CARLOS VALENZUELA,

Defendant-Appellant.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

(D.C. No. 05-CR-00463-LTB)

 

Martha A. Paluch, Assistant Unites States Attorney (Troy A. Eid, United States

Attorney with her on the brief), Denver, Colorado, for Plaintiff-Appellee.

Lynn C. Hartfield, Assistant Federal Public Defendant (Raymond P. Moore,

Federal Public Defender with her on the brief), Denver, Colorado, for DefendantAppellant.

 

Before MCCONNELL, BALDOCK, and TYMKOVICH, Circuit Judges.

 

BALDOCK, Circuit Judge.

 
2

After a Greeley, Colorado police officer discovered a sawed-off shotgun in

Defendant’s vehicle during a traffic stop, a grand jury indicted Defendant on one

count of possession of an unregistered sawed-off shotgun in violation of 26 U.S.C.

§ 5861. Defendant moved to suppress the shotgun. According to Defendant, the

officer did not have reasonable suspicion to stop his vehicle, or, in the alternative,

the officer unreasonably prolonged the traffic stop by asking him questions outside

the scope of the traffic violation. The district court concluded the officer acted

reasonably throughout the course of the stop and denied Defendant’s motion to

suppress. Defendant subsequently entered a conditional guilty plea, reserving the

right to appeal the district court’s order. See Fed. R. Crim. P. 11(a)(2). Defendant

now appeals. We have jurisdiction pursuant to 28 U.S.C.§ 1291. We review the

district court’s reasonableness determination de novo, see United States v. Rice, 483

F.3d 1079, 1082 (10th Cir. 2007), and affirm.

I.

The parties stipulated to the all of the following facts: On October 8, 2005, at

approximately 11:59 p.m., Detective Shad Baxter of the Greeley, Colorado Police

Department observed a Lincoln Town Car traveling westbound in the left through

lane, directly ahead of his patrol car. Baxter watched as the Lincoln crossed the

white painted lane divider into the right westbound through lane. The Lincoln

drifted approximately three to four feet into the right lane, and continued in this

manner for several seconds before pulling back into the left lane. The driver of the
3

Lincoln displayed no signal before crossing into the right lane or back into the

left lane.

Detective Baxter activated his emergency lights. Defendant pulled over and

stopped the Lincoln next to the curb. Detective Baxter walked to the driver’s side

window. Inside the vehicle he saw four young males. Detective Baxter told

Defendant why he had stopped him, and asked him for his driver’s license,

registration, and proof of insurance. Defendant informed Detective Baxter he did not

have his driver’s license with him but identified himself by name. Defendant then

handed Detective Baxter a plastic sleeve with registration and insurance information

for the Lincoln.

Detective Baxter asked Defendant whether he would be willing to get out of

the car and speak with him. Defendant agreed, got out of the car, and walked with

Baxter to the rear of the Lincoln. Very shortly into their conversation, Detective

Baxter asked Defendant whether he or any of the others in the car had any type of

weapons or illegal items. Defendant answered by saying “not that I know of,” or

words to that effect. Detective Baxter then asked whether it would be “O.K.” to

search the vehicle for weapons or any other illegal items. Defendant answered this

question by telling the detective a shotgun was in the back seat area. Detective

Baxter promptly handcuffed Defendant and placed him in the backseat of another

officer’s patrol car which had recently arrived as backup. To ensure everyone’s

safety, the detective removed the remaining occupants from the car and handcuffed
4

them as well.

Detective Baxter then looked into the Lincoln through the rear window of the

driver’s side. On the floorboard behind the driver’s seat, the detective could see the

butt stock of a sawed-off shotgun, which was partially wrapped in a white t-shirt.

The firearm was situated so that the barrel-end of the shotgun was pointing toward

the front of the car, under the driver’s seat. Detective Baxter retrieved the shotgun

and the indictment followed.

II.

A traffic stop is a seizure for Fourth Amendment purposes, the propriety of

which we measure under the standards set forth in Terry v. Ohio, 392 U.S. 1 (1968).

See United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). We consider

the detention as a whole, “and the touchstone of our inquiry is reasonableness.”

United States v. Patterson, 472 F.3d 767, 776 (10th Cir. 2006). We conduct a

two-step inquiry when determining the constitutionality of a traffic stop. First we

ask whether the officer’s action was justified at its inception. If so, we then ask

whether the resulting detention was reasonably related in scope to the circumstances

that justified the stop in the first place. See United States v. Tibbetts, 396 F.3d 1132,

1136 (10th Cir. 2005). “The validity of a traffic stop under the Fourth Amendment

turns on whether this particular officer had reasonable suspicion that this particular

motorist violated any one of the multitude of applicable traffic and equipment

regulations of the jurisdiction.” Id. at 1137 (internal quotations omitted). The
5

government bears the burden of proving the reasonableness of the officer’s

suspicion. United States v. Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998). The

detention arising from a traffic stop does not become unreasonable merely because

the officer asks questions unrelated to the initial purpose for the stop, provided those

questions do not unreasonably extend the amount of time the subject is delayed. See

United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006) (citations

omitted).

A.

Defendant first argues Detective Baxter did not have reasonable suspicion to

stop his vehicle. As noted above, Detective Baxter stopped Defendant’s car because

Defendant, without signaling, crossed three or four feet into the right westbound lane

and stayed in that position for several seconds before crossing back into the left

westbound lane. Detective Baxter believed Defendant’s actions violated Colo. Rev.

Stat. § 42-4-1007(1)(a), which provides “[a] vehicle shall be driven as nearly as

practicable entirely within a single lane and shall not be moved from such lane until

the driver has first ascertained that such movement can be made with safety.”

Relying on United States v. Gregory, 79 F.3d 973 (10th Cir. 1996), Defendant

argues his several second drift into the right lane did not justify Detective Baxter’s

stop. In Gregory, we interpreted a Utah statute very similar to Colo. Rev. Stat. § 42-

4-1007(1)(a) and held, under the circumstances of that case, a driver’s brief drift

outside his lane of traffic into an emergency lane did not amount to a violation of
 The Utah statute at issue in Gregory, Utah Code Ann. § 41-6-61(1), 1

required that a vehicle be operated “as nearly as practical entirely within a single

lane . . . .” 

6

Utah law sufficient to effectuate a traffic stop. Id. at 978. Since that time, our cases 1

have clarified that Gregory does not “stand[] for the proposition that a single

instance of drifting onto the shoulder can never be a violation of a traffic statute like

section [41-6-61(1)].” United States v. Cline, 349 F.3d 1276, 1287 (10th Cir. 2003).

Rather, we must analyze objectively all the surrounding facts and circumstances to

determine whether the officer had reasonable suspicion that a violation of the

applicable statute had occurred. See United States v. Ozbirn, 189 F.3d 1194, 1198

(10th Cir. 1999). 

Defendant asserts this case falls “squarely within the bounds of Gregory.” We

disagree. Several facts distinguish this case from Gregory. First, in Gregory, the

defendant was traveling in a moving truck where the road was winding, the terrain

was mountainous and the weather condition was windy. Gregory, 79 F.3d at 975.

As we explained: “Under these conditions any vehicle could be subject to an

isolated incident of moving into the right shoulder of the roadway, without giving

rise to suspicion of criminal activity.” Id. In this case, nothing in the record

suggests any outside factors contributed to Defendant’s lane drift. See United States

v. Alvarado, 430 F.3d 1305, 1309 (10th Cir. 2005) (noting the lack of any objective

factor which might have made it impractical for the defendant to remain in a single
7

lane). Instead, the record is clear Defendant was traveling along a four-lane city

street.

Additionally, the movement of the vehicle in Gregory occurred toward the

right shoulder of the road, so other traffic was in no danger of collision. In this case,

Defendant moved his vehicle three to four feet into another lane of traffic, essentially

straddling the lane divider for several seconds. This movement is more significant

than the brief two-feet lane drift under windy conditions described in Gregory. See

Gregory, 79 F.3d at 975-76. Detective Baxter could have reasonably believed

Defendant’s actions in this case posed a serious risk of collision. Accordingly, we

conclude Detective Baxter had reasonable suspicion to believe Defendant violated

the Colorado Traffic Code, thus justifying the initial stop of Defendant’s vehicle.

See id. (upholding the district court’s denial of a motion to suppress where the

defendant drifted approximately one foot out of his lane for several seconds).

B.

Defendant also argues Detective Baxter’s questioning regarding the presence

of weapons “or other illegal items” and his request to search Defendant’s vehicle

unreasonably extended the detention in violation of his Fourth Amendment rights.

We begin our analysis of Defendant’s alternative argument with Detective Baxter’s

first question: “Do you have any weapons or other illegal items in your vehicle?”

For several years the rule in this circuit has been police officers are free to question

individuals regarding the presence of weapons. See United States v. Holt, 264 F.3d
8

1215 (10th Cir. 2001) (en banc). The justification for this rule is rooted in officer

safety. See id. at 1226 (noting “the government’s interest in officer safety outweighs

a motorist’s interest in not being asked about the presence of loaded weapons.”).

Thus, the first part of Detective Baxter’s question regarding the presence of weapons

was permissible, if not advisable.

Recent precedent informs us that the second portion of Detective Baxter’s first

question, i.e., whether “other illegal items” were in the car, was also permissible.

In Alcaraz-Arellano, we ruled that officers may ask questions outside the scope of

the traffic stop so long as the questions do not appreciably prolong the length of the

stop. See Alcaraz-Arellano, 441 F.3d at 1259. Defendant argues Detective Baxter’s

questioning prolonged the length of the stop because Detective Baxter allegedly

abandoned investigation of the traffic offense and immediately asked Defendant

questions unrelated to the traffic infraction. In other words, according to Defendant,

Detective Baxter was only permitted to ask questions unrelated to the traffic stop

while he was writing out a ticket, waiting for dispatch, or conducting some other

investigative procedure related to the initial purpose of the stop.

We do not believe our precedent requires such a narrow approach. Our cases

do not focus on the order of events. Rather, our cases focus on the reasonableness

of the traffic stop in light of both the length of the detention and the manner in which

it was carried out. See id. at 1258. In this case, Detective Baxter’s question

regarding the presence of other “illegal items” did not appreciably lengthen the
9

duration of the stop. The officer’s inquiry required a simple yes or no answer and

could not have taken more than two or three seconds to ask. That Detective Baxter

did not ask the question while actively processing Defendant’s traffic infraction does

not render Defendant’s momentary detention unreasonable.

Detective Baxter’s second question, “may I search,” also did not violate

Defendant’s Fourth Amendment rights. Again, the key inquiry is whether

Defendant’s detention was reasonable. Patterson, 472 F.3d at 776. Detective Baxter

asked for consent to search the vehicle as a follow-up question to his original

question regarding the presence of weapons or other illegal items in the vehicle.

Because Defendant answered the first question with the equivocal response of “not

that I know of,” and because the possible presence of weapons in the vehicle posed

an immediate danger, Detective Baxter reasonably asked whether he could search the

vehicle. Indeed, Defendant’s equivocal response to Detective Baxter’s first question

engenders the notion that weapons may be in the vehicle but Defendant does not

necessarily know of any.

We have repeatedly pointed out the Government’s strong interest in officer

safety. As we noted in Holt, 264 F.3d at 1221, a motorist expects an officer to take

“reasonable measures to protect officer safety during [a traffic stop].” In Holt, we

outlined the risk of danger faced by police officers conducting traffic stops and noted

because of this risk, officers are given “wide latitude to discern the threat [a]

motorist may pose to officer safety.” Id. at 1223 (citations and quotations omitted).
 As a final note, we point out that the fact Detective Baxter asked for 2

consent to search the car instead of some other question is irrelevant. AlcarazArellano makes clear that the content of an officer’s questions is unimportant so

long as the questions do not unreasonably delay the stop. We could not have been

more clear when we held that questioning “regardless of the topic” does not

violate the Fourth Amendment so long as it does not prolong the detention. 

Alcaraz-Arellano, 441 F.3d at 1259.

10

Given Defendant’s answer to Detective Baxter’s first question and the importance

of officer safety, Detective Baxter’s request to search the vehicle for weapons

undoubtedly was reasonable.

The line of cases Defendant cites in his brief concerning an officer’s request

for consent to search a vehicle before the officer returns the driver’s license,

registration, and insurance information does not alter the outcome of this case. See

e.g., United States v. Guerrero-Espinoza, 462 F.3d 1302, 1309 (10th Cir. 2006).

These cases simply stand for the proposition that during a “routine traffic stop, an

officer’s retention of a defendant’s documents is significant because it indicates that

the defendant, as a general rule, did not reasonably feel free to terminate the

encounter and, therefore, the government cannot rely on the defendant’s consent to

justify further detention, questioning, or a search.” Id. (citations and quotations

omitted). The validity of Defendant’s consent to search is not at issue in this case.2

AFFIRMED.