FILED
United States Court of Appeals
Tenth Circuit
April 2, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee, No. 09-3151
v. (D.C. No.5:08-CR-40055-JAR-1)
FELIPE J. PERALES, (D. Kan.)
Defendant–Appellant.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist 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.
In June of 2008, highway patrol officers pulled over the Appellant, Felipe
Perales, for violation of Kan. Stat. Ann. § 8-1522(a) 1 after his Toyota Echo
*
This order and judgment is not binding precedent, except under the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.
1
Section 8-1522(a) states that “[a] vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be moved from such lane
(continued...)
momentarily crossed the fog line and then weaved within its lane of travel. Mr.
Perales was subsequently arrested and charged with one count of possession of
methamphetamine with intent to distribute, pursuant to 21 U.S.C. § 841, after
police discovered methamphetamine in his vehicle. Prior to the trial, Mr. Perales
filed a motion to suppress the evidence obtained as a result of this search. Mr.
Perales argued that briefly drifting over the fog line once, which Mr. Perales
maintains was caused by wind, did not give police reasonable suspicion he had
committed a traffic infraction as required by the Fourth Amendment.
In considering the motion, the district court found there was “no credible
evidence that it was windy,” but, if there was wind, the size of the vehicle, the
straightness of the road, and the fact that Mr. Perales was driving under the speed
limit would make it easier to control the vehicle. (Doc. 28 at 7.) Additionally, the
court found “half the width of the vehicle” crossed the fog line and “the vehicle
continued to weave within the traffic lane after drifting across the fog line.” (Id.)
Based on these facts, the district court determined that the stop did not violate Mr.
Perales’s Fourth Amendment rights, concluding that the troopers “had at least
reasonable suspicion that defendant was impaired, if not probable cause that he
had violated Kan. Stat. Ann. § 8-1522.” (Id.) Mr. Perales now appeals the district
1
(...continued)
until the driver has first ascertained that such movement can be made with
safety.”
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court’s ruling. In reviewing a district court’s denial of a motion to suppress, we
“consider the evidence in the light most favorable to the district court’s ruling”
and accept the district court’s factual findings and “its determination of witness
credibility, unless they are clearly erroneous.” United States v. Alvarado, 430
F.3d 1305, 1308 (10th Cir. 2005) (internal quotation marks omitted). We review
the district court’s legal conclusions de novo. See id.
After a careful review of the briefs and the record on appeal, we conclude
the district court did not err in denying Mr. Perales’s motion. It does appear the
district court may have erred in finding the videotape of the traffic stop contained
no evidence of wind; however, we believe the court’s other factual findings,
including the degree of the vehicle’s drift, its continued weaving, and the
condition of the road, provide ample support for the court’s ultimate legal
conclusion that the troopers had “at least reasonable suspicion that [Mr. Perales]
was impaired.” (Doc. 28 at 7.) See Alvarado, 430 F.3d at 1308 (stating “a court
must analyze objectively all the surrounding facts and circumstances to determine
whether the officer had reasonable suspicion that a violation of the statute had
occurred”) (internal quotation marks omitted). Accordingly, and for substantially
the same reasons set forth in the district court’s order, we AFFIRM.
Entered for the Court
Monroe G. McKay
Circuit Judge
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