UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

THEODORE OLGUIN, 

 Defendant - Appellant. 

No. 14-2112 

(D.C. No. 5:12-CR-01163-RB-1) 

(D.N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

Theodore Olguin appeals the denial of his motion to suppress evidence found 

during a traffic stop. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I

Around 2:00 a.m. on February 23, 2011, Officer Terry Colwell observed a 

vehicle speeding in Artesia, New Mexico. Colwell recognized it as belonging to 

Olguin. A few months earlier, Colwell had ticketed Olguin for driving with his frontside windows tinted to block out more than 80% of incoming sunlight, which is a 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. 

App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

May 22, 2015

Elisabeth A. Shumaker 

Clerk of Court

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violation of New Mexico law and of an Artesia ordinance. Colwell testified that he 

told Olguin during the previous encounter that he would be ticketed again unless he 

drove with his windows down. 

After following the vehicle for a few blocks, Colwell testified that he turned 

on his spotlight and observed that the front-side windows of the vehicle were rolled 

up. Video from Colwell’s patrol car does not show if the windows were up or down. 

Colwell turned around in order to pull Olguin over, and activated his emergency 

equipment. Olguin drove for a few blocks, then motioned with his hand out his frontdriver-side window that he was pulling over. Olguin later testified that he did not 

pull over immediately because he could not see the police car’s lights. 

Colwell approached Olguin and asked why his windows were not rolled down. 

Olguin replied “because it’s cold out.” Olguin later testified that he rolled his rearside windows up after pulling over and that he thought Colwell was asking him why 

he had done so. With wind chill, the temperature that night was approximately 20 

degrees Fahrenheit. Olguin also testified that he had been driving with his windows 

open, despite the cold temperature. 

Sergeant Jarod Zuniga, who arrived at the scene after the stop, subsequently 

asked Olguin to step out of the vehicle for a pat-down, based on knowledge from 

previous encounters that Olguin was usually armed. After Olguin exited the vehicle, 

Zuniga found a handgun inside. Olguin was indicted for being a felon in possession 

of a firearm. He moved to suppress the evidence found during the stop. The district 

court denied his motion, concluding that the stop was justified because Olguin’s 

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front-side windows were up, that Colwell’s testimony on this point was credible, and 

that Olguin’s was not. These findings were based on four grounds: (1) Colwell’s 

testimony; (2) the below-freezing temperature; (3) Olguin’s response (“Because it’s 

cold”) to Colwell’s question; and (4) Olguin’s testimony that he initially did not see 

Colwell pulling him over. Olguin entered a conditional guilty plea, and timely 

appealed. 

II 

“In reviewing the denial of a defendant’s motion to suppress, we view the 

evidence in the light most favorable to the government, accept the district court’s 

findings of fact and credibility determinations unless clearly erroneous, and review 

de novo the ultimate question of reasonableness under the Fourth Amendment.” 

United States v. Benard, 680 F.3d 1206, 1209-10 (10th Cir. 2012). 

On appeal, Olguin argues only that the traffic stop was not justified because 

his front-side windows were down. A traffic stop is proper at its inception if the 

officer conducting the stop has “reasonable articulable suspicion that a traffic or 

equipment violation has occurred or is occurring.” United States v. McGehee, 672 

F.3d 860, 867 (10th Cir. 2012) (quotation omitted). Whether Colwell had reasonable 

suspicion that Olguin was violating the law by driving with his tinted front-side 

windows rolled up is an issue of fact that turns on weighing Colwell’s testimony 

against Olguin’s. The district court did not clearly err in its credibility finding. It 

relied on circumstantial evidence supporting Colwell’s account. No circumstantial 

evidence supported Olguin’s account. See United States v. Revels, 510 F.3d 1269, 

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1273 (10th Cir. 2007) (explaining that we defer to the district court on the matter of 

credibility determinations). 

Olguin contends that the circumstances of Colwell’s later dismissal from the 

Artesia police force undermine the district court’s credibility finding. Colwell was 

involved in a verbal dispute with an assistant district attorney. A subsequent 

investigation determined that Colwell lied about the details of the dispute. He was 

then fired by the Artesia Chief of Police. The local district attorney sent a “Giglio

letter” to Colwell’s supervisor stating that Colwell’s credibility was irreparably 

damaged. See Seifert v. Unified Gov’t of Wyandotte Cnty./Kan. City, 779 F.3d 

1141, 1148 (10th Cir. 2015) (citing Giglio v. United States, 405 U.S. 150, 154 

(1972)) (discussing common practice of prosecutors informing law enforcement 

supervisors that they will not take cases from certain officers due to requirement that 

prosecutors disclose past dishonesty by officers to criminal defendants). Colwell was 

later exonerated by the state Academy Board, but the district attorney sent another 

letter affirming that, regardless of Colwell’s exoneration, she would not accept any of 

his cases. Despite learning about Colwell’s credibility problems, the district court, in 

denying the motion to suppress, concluded that the circumstances surrounding 

Colwell’s termination were irrelevant to whether the stop of Olguin was justified. 

We have recognized that information about a law enforcement officer being 

disciplined due to dishonesty is “certainly probative of truthfulness.” United States 

v. Fuentez, 231 F.3d 700, 705 (10th Cir. 2005); accord United States v. Woodard, 

699 F.3d 1188, 1193-95 (10th Cir. 2012). But there is no hard and fast rule that an 

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officer found untruthful in one context is automatically not credible in any other. 

The officer’s record of not being credible is just one factor, albeit an important one, 

for district courts to consider when making credibility findings. As the Supreme 

Court has held, when “there are two permissible views of the evidence, the 

factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of 

Bessemer City, 470 U.S. 564, 575 (1985). There is no reason to conclude that the 

district court committed clear error by finding Colwell credible despite his history of 

dishonesty. Circumstantial evidence corroborates Colwell’s and not Olguin’s version 

of events. 

III

 The judgment of the district court is AFFIRMED. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

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