United States v. Ramon Castro , 480 F. App'x 782 ( 2012 )


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  •      Case: 11-50798     Document: 00511901435         Page: 1     Date Filed: 06/27/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    June 27, 2012
    No. 11-50781
    c/w No. 11-50798                       Lyle W. Cayce
    Summary Calendar                             Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    RAMON JAVIER CASTRO,
    Defendant-Appellant
    Appeals from the United States District Court
    for the Western District of Texas
    USDC No. 6:11-CR-56-1
    Before KING, JOLLY, and GRAVES, Circuit Judges.
    PER CURIAM:*
    Ramon Javier Castro was convicted of possession with intent to distribute
    at least five kilograms of cocaine and sentenced to 120 months of imprisonment
    and five years of supervised release. He appeals the denial of his motion to
    suppress evidence obtained from a search of his vehicle following a traffic stop.
    Castro contends that the traffic stop was unconstitutional because the
    officer did not have an objectively reasonable basis for believing that Castro had
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    Case: 11-50798     Document: 00511901435       Page: 2    Date Filed: 06/27/2012
    No. 11-50781 c/w No. 11-50798
    committed a traffic violation by traveling in the left lane of the highway without
    passing. He argues that he did not commit a traffic violation because he lacked
    notice of the left-lane driving restriction. This specific argument regarding the
    legality of the traffic stop is raised for the first time on appeal. “[F]ailure to raise
    specific issues or arguments in pre-trial suppression proceedings operates as a
    waiver of those issues or arguments for appeal.” United States v. Pope, 
    467 F.3d 912
    , 918-19 (5th Cir. 2006) (emphasis in original). Therefore, Castro’s argument
    on appeal is waived. We have nonetheless reviewed Castro’s argument for plain
    error “for good measure.” United States v. Scroggins, 
    599 F.3d 433
    , 448 (5th Cir.
    2010).
    To show plain error, Castro must show that the error was clear or obvious
    and affects his substantial rights. Puckett v. United States, 
    556 U.S. 129
    , 135
    (2009). If he makes such a showing, we have the discretion to correct the error
    but only if it “‘seriously affect[s] the fairness, integrity, or public reputation of
    judicial proceedings.’” Id. (alteration in original) (quoting United States v.
    Olano, 
    507 U.S. 725
    , 736 (1993)).
    A warrantless but limited search and seizure of a vehicle is permissible
    under the Fourth Amendment “where there is a reasonable and articulable
    suspicion that a person has committed or is about to commit a crime.” United
    States v. Jones, 
    234 F.3d 234
    , 239 (5th Cir. 2000). The legality of such a search
    or seizure is examined under the two-pronged analysis set forth in Terry v. Ohio,
    392 U .S. 1 (1968), to determine “1) whether the officer’s action was justified at
    its inception; and 2) whether it was reasonably related in scope to the
    circumstances that justified the interference in the first place.” Id. at 240.
    “For a traffic stop to be justified at its inception, an officer must have an
    objectively reasonable suspicion that some sort of illegal activity, such as a
    traffic violation, occurred, or is about to occur, before stopping the vehicle.”
    United States v. Lopez-Moreno, 
    420 F.3d 420
    , 430 (5th Cir. 2005). It would not
    have been clearly erroneous for the district court to have found that Castro
    2
    Case: 11-50798    Document: 00511901435      Page: 3    Date Filed: 06/27/2012
    No. 11-50781 c/w No. 11-50798
    traveled by a sign notifying drivers of the left-lane travel restriction at highway
    mile marker 321. See United States v. Jones, 
    234 F.3d 234
    , 239 (5th Cir. 2000).
    Since Castro traveled by a sign notifying drivers of the left-lane travel
    restriction, the arresting officer had reasonable suspicion to stop Castro for
    traveling in the left lane without passing. See Green v. State, 
    93 S.W.3d 541
    , 546
    (Tex. App. 2002) (citing TEX. TRANSP. CODE ANN. §§ 544.004, 544.011).
    Castro nonetheless argues that driving in the left lane without passing is
    not a traffic violation if there is no sign prohibiting the conduct at the time and
    place of the alleged violation. The sign that Castro traveled by was 24 miles
    from the location of the alleged violation. Castro has failed to carry his burden
    on plain error review of demonstrating that the Texas Transportation Code
    requires the traffic control device to be in direct proximity to the location of the
    alleged violation. Cf. TEX. TRANSP. CODE ANN. § 544.004(b); see United States v.
    Sandlin, 
    589 F.3d 749
    , 757 (5th Cir. 2009). Therefore, he cannot show that the
    district court erred, much less plainly erred, by denying his motion to suppress
    on the ground that the officer had reasonable suspicion to stop him for
    committing a traffic violation. In light of this conclusion, we need not reach
    Castro’s argument that his consent to the search of the vehicle was involuntary
    because the traffic stop was unconstitutional.
    The judgment of the district court is AFFIRMED.
    3