United States v. Marquez ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 9 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 96-6202
(D.C. No. CR-95-149-L)
PABLO VIDAL MARQUEZ, a/k/a (Western District of Oklahoma)
Pablo Marquez, Ricardo Arroyo,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, LUCERO and MURPHY, Circuit Judges.
On September 28, 1995, a police officer discovered 180 pounds of cocaine
in a hidden panel underneath the bed of defendant’s pickup truck. Defendant
filed an unsuccessful suppression motion, challenging the initial traffic stop and
subsequent search of his pickup. He then entered a conditional guilty plea to
possession with intent to distribute cocaine, reserving the right to appeal the
denial of his suppression motion. He argues on appeal that the initial stop was
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
unjustified and that the police officer exceeded the scope of the consent by
dismantling the bed of his pickup. We affirm.
In reviewing the denial of a suppression motion, we view the evidence in
the light most favorable to the government and accept the district court’s factual
findings unless they are clearly erroneous. United States v. Bell, 892 F.2d 959,
965 (10th Cir. 1989). A factual finding is clearly erroneous if it lacks support
from the record or if, after reviewing all the evidence, we are “left with a definite
and firm conviction that a mistake has been made.” LeMaire v. United States,
826 F.2d 949, 953 (10th Cir. 1987). We review the district court’s determination
of reasonableness de novo. United States v. Botero-Ospina, 71 F.3d 783, 785
(10th Cir. 1995).
A traffic stop constitutes a seizure within the meaning of the Fourth
Amendment. Id. at 786. Because an ordinary traffic stop is a limited detention,
we examine its constitutionality under the principles announced in Terry v. Ohio,
392 U.S. 1 (1968). See Botero-Ospina, 71 F.3d at 786. Such a “stop is valid
under the Fourth Amendment if the stop is based on an observed traffic violation
or if the police officer has reasonable articulable suspicion that a traffic or
equipment violation has occurred or is occurring.” Id. at 787.
Defendant argues that Trooper Ross, the officer who pulled him over,
lacked a reasonable basis for the stop. The circumstances surrounding the traffic
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stop are documented in a video tape of the stop and in the transcript of the
suppression hearing. Trooper Ross testified at the hearing that defendant’s
pickup caught his attention because it made “sort of a jerky movement” as Ross
was passing the pickup. II R. at 14-16. Defendant then legally changed lanes,
from the center to the right hand lane, which Trooper Ross thought might have
been an attempt to distance himself from Ross’s patrol car. Defendant drifted
over to the right side of his lane and slowed down to between forty-five to fifty
miles per hour in the fifty-five mile-an-hour zone. On three or four brief
occasions, Ross observed the defendant’s tires touch the lane line that divides the
right lane from the shoulder. Ross decided to pull defendant over because these
“lane violations,” combined with defendant’s slow, erratic and evasive driving,
lead Ross to believe that defendant was possibly impaired.
It is not clear whether defendant violated Oklahoma law by briefly touching
the lane line. Although Oklahoma law mandates that “[a] vehicle shall be driven
as nearly as practicable entirely within a single lane,” 47 Okla. Stat. Ann. § 11-
309(1) (1988), there are no reported decisions that treat a brief touching, as
opposed to crossing, of the lane line as a violation of Oklahoma law. Cf. United
States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996) (holding that, on a winding
mountainous road, a single instance of crossing right lane line is not a violation of
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Utah statute that requires vehicles to be operated “as nearly as practical entirely
within a single lane . . . .” (quoting Utah Code Ann. § 41-6-61(1))).
Even if we assume that touching the lane line is not, in and of itself, a
violation of Oklahoma law, we nevertheless agree with the district court that
defendant’s driving gave Trooper Ross sufficient reason to investigate for
possible impairment. Although our review of the video tape does not reveal
obvious indications of possible impairment, the district court evidently credited
Trooper Ross, who testified that defendant, partly when he was “off camera,” was
swerving or jerking, driving below the speed limit, and hugging and touching the
right lane line. Finding no clear error in the district court’s factual
determinations, we conclude that Ross had an objectively reasonable articulable
suspicion that defendant was impaired. See United States v. Lloyd, 13 F.3d 1450,
1453 (10th Cir. 1994) (“Erratic driving supports an investigative stop to
determine if the driver is intoxicated or to determine the reason for the erratic
driving.”).
Turning to defendant’s second argument on appeal, we examine the scope
of the consent he gave Trooper Ross to search the pickup. Trooper Ross asked
defendant for permission to search after smelling marijuana on defendant’s breath
and the strong odor of cologne. Specifically, Ross asked whether defendant was
transporting any illegal drugs or guns. Defendant said that he was not. Ross then
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asked if he could “check.” Defendant replied, “Sure.” In searching the cab of the
pickup, Ross found the butt of a marijuana cigarette in the ash tray. He then
walked to the rear of the pickup, lowered the tailgate, and discovered that the bed
was raised 4-5 inches. Ross arrested and handcuffed defendant. He also called
for a drug dog. After the dog alerted to the pickup bed, Ross used a crowbar to
pry open the false compartment underneath the pickup bed. The false
compartment contained 180 pounds of cocaine.
Defendant does not object to the discovery of the marijuana cigarette.
Rather, he complains about the discovery of the cocaine in a hidden compartment
underneath the pickup bed. Defendant contends that by agreeing to the “check”
of his vehicle, he gave only limited permission for a cursory inspection, which did
not include permission for Trooper Ross to use a crow bar to pry into the hidden
compartment.
We need not decide whether Trooper Ross exceeded the scope of
defendant’s consent by prying open the hidden compartment, because probable
cause supported the warrantless inspection of the hidden compartment, even
without consent. Before Ross pried open the compartment, he smelled marijuana
and cologne, discovered the marijuana cigarette, and observed the unusually
shallow truck bed. Although he might have proceeded to conduct a warrantless
search of the hidden compartment at that point, see United States v. Parker, 72
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F.3d 1444, 1450 (10th Cir. 1995), he chose to call for a drug dog. Clearly, after
the dog alerted, there was probable cause to conduct a warrantless search of the
entire pickup, including its hidden compartments. See United States v.
Klinginsmith, 25 F.3d 1507, 1510 (10th Cir. 1994) (drug dog alone provides
probable cause); see also United States v. Ross, 456 U.S. 798, 809 (1982)
(warrantless search of automobile is reasonable if officer has probable cause to
believe it contains contraband). Therefore, the search of the hidden compartment
was constitutional, with or without defendant’s consent. Klinginsmith, 25 F.3d at
1510.
AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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