Monday, January 8, 2007

United States v. Efrain Estrata-Nava - Unconstitutional Traffic Stop

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ü
Plaintiff-Appellee, No. 01-50140
v. ý D.C. No. CR-99-01212-
ERIC COLIN, MMM-02
Defendant-Appellant. þ
UNITED STATES OF AMERICA, ü No. 01-50152
Plaintiff-Appellee, D.C. No.
v. ý CR-99-01212-
EFRAIN ESTRADA-NAVA, MMM-01
Defendant-Appellant. þ OPINION
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted
May 9, 2002*—Pasadena, California
Filed December 31, 2002
Before: Donald P. Lay,** William C. Canby, Jr. and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
*Case No. 01-50140 was submitted without oral argument.
**The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
1
COUNSEL
James H. Locklin, Deputy Federal Public Defender, Los
Angeles, California, for defendant-appellant Efrain Estrada-
Nava.
Michael J. Treman (brief), Santa Barbara, California, and
James H. Locklin (argument), Deputy Federal Public
Defender, Los Angeles, California, for defendant-appellant
Eric Colin.
Joseph H. Zwicker (on brief) and Brian Hoffstadt (argued),
Assistant United States Attorneys, Los Angeles, California,
for plaintiff-appellee United States of America.
OPINION
PAEZ, Circuit Judge:
Efrain Estrada-Nava and Eric Colin were indicted on one
count of possession of methamphetamine with intent to dis-
UNITED STATES v. COLIN 5
tribute, in violation of 21 U.S.C. § 841(a)(1). They moved in
the district court to suppress the evidence on which the charge
was based, claiming it was the fruit of an illegal stop and
search. The district court denied the motion. Estrada-Nava
and Colin then pled guilty to the charge.1 We reverse and hold
that the police officer who discovered the evidence did so
only after he stopped Estrada-Nava and Colin’s car without
reasonable suspicion, in violation of the Fourth Amendment.2
BACKGROUND
On November 12, 1999, at approximately 2:05 a.m., Sergeant
Thomas Carmichael observed a blue Honda traveling at
70 m.p.h. northbound in the right lane on Interstate 15. Carmichael
first observed the Honda from his patrol car, which
was positioned 75 yards behind it. He observed the car drift
onto the solid white fog line on the far side of the right lane
and watched the car’s wheels travel along the fog line for
approximately ten seconds. The Honda then drifted to the left
side of the right lane, signaled a lane change, and moved into
the left lane. Carmichael next observed the car drift to the left
side of the left lane where its left wheels traveled along the
solid yellow line for approximately ten seconds. The car then
returned to the center of the left lane, signaled a lane change,
and moved into the right lane. Carmichael pulled the car over
for possible violations of California Vehicle Code § 21658(a)
(lane straddling) and California Vehicle Code § 23152(a)
(driving under the influence).
Appellant Efrain Estrada-Nava (“Estrada-Nava”) was the
1Estrada-Nava and Colin entered a conditional plea agreement that preserved
their right to appeal the district court’s ruling on their motion to
suppress.
2Because we hold that the police officer lacked reasonable suspicion to
stop Estrada-Nava and Colin, in violation of the Fourth Amendment, we
decline to reach the issue of whether the stop was motivated by a programmatic
aim to enforce drug and weapons laws.
6 UNITED STATES v. COLIN
driver of the car and appellant Eric Colin (“Colin”) was his
passenger. When Carmichael advised Estrada-Nava of the
reasons for stopping him and asked for his license and registration,
he noticed that both Estrada-Nava and Colin were nervous
and shaking. He also noticed that the glove compartment
contained a bottle of air freshener and a radar detector, that
there were only three keys on Estrada-Nava’s key ring, and
that neither Estrada-Nava nor Colin owned the Honda. Suspecting
that the car might have been stolen, Carmichael separately
questioned Estrada-Nava and Colin about the
ownership of the vehicle. On the basis of their slightly conflicting
stories, their nervous appearances, and his own training
and experience, Carmichael concluded they might be
involved in drug trafficking. Estrada-Nava and Colin separately
consented to a search of the Honda, which revealed
marijuana and methamphetamine.3
Colin filed a motion to suppress the narcotics evidence, in
which Estrada-Nava joined, arguing that Carmichael illegally
stopped the Honda and illegally detained the two of them
thereafter. After an evidentiary hearing, the district court
denied the motion, concluding that Carmichael had reasonable
suspicion to stop the car and that the evidence therefore was
legally obtained. Estrada-Nava and Colin appealed.
STANDARD OF REVIEW
We review de novo the district court’s determination of reasonable
suspicion. United States v. Arvizu, 534 U.S. 266, 275
(2002) (citing Ornelas v. United States, 517 U.S. 690, 699
(1996)); see also United States v. Mariscal, 285 F.3d 1127,
1129 (9th Cir. 2002). We review the district court’s findings
of fact for clear error. Mariscal, 285 F.3d at 1129; see also
United States v. Lopez-Soto, 205 F.3d 1101, 1103 (9th Cir.
2000).
3We have cited only the facts relevant to our disposition of the case.
UNITED STATES v. COLIN 7
DISCUSSION
[1] The Fourth Amendment’s prohibition against unreasonable
searches and seizures applies to investigatory traffic
stops. Arvizu, 534 U.S. at 273; United States v. Sigmond-
Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2002), reh’g en
banc denied by 309 F.3d 545 (9th Cir. 2002). To justify an
investigative stop, a police officer must have reasonable suspicion
that a suspect is involved in criminal activity. Lopez-
Soto, 205 F.3d at 1104-05. Reasonable suspicion is formed by
“specific articulable facts which, together with objective and
reasonable inferences, form the basis for suspecting that the
particular person detained is engaged in criminal activity.” Id.
at 1105 (internal quotation marks and citations omitted); see
also Mariscal, 285 F.3d at 1130; United States v. Twilley, 222
F.3d 1092, 1095 (9th Cir. 2000). An officer’s inferences must
“be grounded in objective facts and be capable of rational
explanation.” Lopez-Soto, 205 F.3d at 1105 (internal quotation
marks and citations omitted); see also Mariscal, 285 F.3d
at 1130; Twilley, 222 F.3d at 1095. In reviewing the district
court’s determination of reasonable suspicion, we must look
at the “totality of the circumstances” to see whether the officer
had a “particularized and objective basis” for suspecting
criminal activity. Arvizu, 534 U.S. at 273 (internal quotation
marks and citations omitted); see also United States v. Diaz-
Juarez, 299 F.3d 1138, 1141-42 (9th Cir. 2002). Officers are
encouraged to draw upon their own specialized training and
experience in assessing the “totality of the circumstances.”
Arvizu, 534 U.S. at 750-51.
A. Standing
To challenge their stop on Fourth Amendment grounds,
Estrada-Nava and Colin must have a reasonable expectation
of privacy in the Honda. United States v. Dorais, 241 F.3d
1124, 1128 (9th Cir. 2001). We have held that occupants of
a vehicle have standing to challenge on Fourth Amendment
grounds an officer’s stop of their vehicle even if they have no
8 UNITED STATES v. COLIN
possessory or ownership interest in the vehicle. Twilley, 222
F.3d at 1095 (citations omitted). We therefore conclude that
Estrada-Nava and Colin have standing to challenge the stop.
B. The Stop
Carmichael stopped Estrada-Nava and Colin for possible
violations of California Vehicle Code section 21658(a) (lane
straddling) and section 23152 (driving under the influence).
We will address each of these potential violations in turn.
Carmichael also thought that Estrada-Nava may have been
fatigued. We will address this issue together with section
23152.
1. California Vehicle Code § 21658(a) (“lane
straddling”)
[2] Carmichael stopped Estrada-Nava and Colin in part for
violating California’s “lane straddling” statute. The statute
states:
Whenever any roadway has been divided into two or
more clearly marked lanes for traffic in one direction,
the following rules apply: (a) A vehicle shall be
driven as nearly as practical entirely within a single
lane and shall not be moved from the lane until such
movement can be made with reasonable safety.
Cal. Veh. Code § 21658(a). Under the proper construction of
this statute, Estrada-Nava and Colin’s conduct was not a violation.
[3] When interpreting California Vehicle Code section
21658(a), we are bound to follow the decisions of the California
Supreme Court. Paulson v. City of San Diego, 294 F.3d
1124, 1128 (9th Cir. 2002). If the California Supreme Court
itself has not interpreted the meaning of this code provision,
then we must predict how the court would interpret the code
UNITED STATES v. COLIN 9
in light of California appellate court opinions, decisions from
other jurisdictions, statutes, and treatises. Id.; see also S.D.
Myers, Inc. v. City & County of San Francisco, 253 F.3d 461,
473 (9th Cir. 2001); In re Watts, 298 F.3d 1077, 1082-83 (9th
Cir. 2002) (adopting state’s interpretation of a state law in
light of two subsequent state appellate court opinions at odds
with federal court’s prior interpretation of the law).
[4] The California Supreme Court has not issued an opinion
directly addressing section 21658(a). The Los Angeles Superior
Court, Appellate Department, however, interpreted this
statute in People v. Butler, 146 Cal. Rptr. 856 (Cal. App.
Dep’t Super. Ct. 1978). In Butler, the court interpreted “and”
as used in section 21658(a) to mean “or;” that is, to be read
disjunctively. Id. at 857. The court reasoned:
It is our view that section 21658, subdivision (a)
simply states two affirmative duties placed upon the
operator of a motor vehicle. One of these is to drive
as nearly as practicable entirely within one lane. A
separate duty is not to move from that lane until the
movement can be made with reasonable safety.
Id. Although the driver in Butler made no unsafe lane
changes, the court held that he failed to drive within a single
lane, thus violating section 21658(a). Id.
[5] The California Supreme Court has cited Butler with
approval for the proposition that:
The inadvertent use of ‘and’ where the purpose or
intent of a statute seems clearly to require ‘or’ is a
familiar example of a drafting error which may properly
be rectified by judicial construction.
See People v. Skinner, 704 P.2d 752, 758 (Cal. 1985). The
court’s approval of the reasoning in Butler suggests it is likely
to agree with the Butler court’s interpretation of section
10 UNITED STATES v. COLIN
21658(a). See also Friedman v. City of Beverly Hills, 54 Cal.
Rptr. 2d 882, 886 (Cal. Ct. App. 1996) (citing Skinner and
Butler for the proposition that the word “and” in a statute may
be read as “or” to effectuate legislative intent).
Even if we interpret section 21658(a) to impose two separate
duties on drivers — to stay within a single lane and to
make safe lane changes — we conclude that Estrada-Nava
and Colin did not violate the statute.
[6] Estrada-Nava and Colin’s car touched for approximately
ten seconds, but did not cross, the fog line and the
solid yellow-painted line. The district court concluded on the
basis of these facts that Carmichael had reasonable suspicion
to stop Estrada-Nava and Colin for lane straddling because
“[a] common sense definition of lane straddling . . . includes
a situation in which a vehicle’s wheels rest on the marking
line.” We disagree, and conclude that based on the “totality of
the circumstances,” Carmichael lacked the requisite reasonable
suspicion to stop Estrada-Nava and Colin for lane straddling.
[7] As the district court pointed out, neither section
21658(a) nor California case law specifies what is meant by
“drive as nearly as practical entirely within a single lane.” It
therefore is unclear under California law whether a car’s
wheels must cross over a line for there to be a violation of
lane straddling. Courts in other states, however, that have
interpreted statutes similar to, if not the same as, section
21658(a) have held that touching the line is not enough to
constitute lane straddling. See, e.g., United States v. Gregory,
79 F.3d 973, 978 (10th Cir. 1996) (holding that an isolated
incident of a vehicle crossing into the emergency lane of a
roadway does not violate state statute’s requirement that vehicles
remain entirely in a single lane “as nearly as practical”);
United States v. Guevara-Martinez, 2000 WL 33593291, at
*2 (D. Neb. May 26, 2000) (interpreting a similar Nebraska
statute and concluding that touching, but not crossing, the
UNITED STATES v. COLIN 11
broken line between two southbound lanes twice in a half
mile did not violate the statute’s “near as practicable” requirement),
aff’d, 262 F.3d 751 (8th Cir. 2001); Rowe v. State of
Maryland, 769 A.2d 879, 889 (Md. 2001) (concluding that
“momentary crossing of the edge line of the roadway and later
touching of that line” was not reasonable suspicion to justify
traffic stop); State v. Caron, 534 A.2d 978, 979 (Me. 1987)
(holding that there was not reasonable suspicion to justify a
stop because a vehicle’s “one time straddling of the center
line of an undivided highway is a common occurrence”);
State v. Tarvin, 972 S.W.2d 910, 912 (Tex. Ct. App. 1998)
(holding that police officer did not have reasonable suspicion
to stop the defendant’s vehicle where the defendant’s car
“touch[ed] the right-hand white line”). These cases suggest
that to violate a lane straddling statute, a driver must do more
than simply touch, even for 10 seconds, a painted line on a
highway. See Rowe, 769 A.2d at 887-88 (citing cases in
which courts have upheld traffic stops and noting that the conduct
justifying the stop was “more egregious” than touching
the line or briefly crossing over it).
[8] Even if we assume, as the district court did, that “if the
wheels were on the line, then that part of the vehicle that
extends beyond the wheels was over the line and the car was
traveling in two lanes,” we still conclude that there was not
reasonable suspicion to stop Estrada-Nava and Colin for a
violation of section 21658(a). Touching a dividing line, even
if a small portion of the body of the car veers into a neighboring
lane, satisfies the statute’s requirement that a driver drive
as “nearly as practical entirely within a single lane.” Cal.
Veh. Code § 21658(a) (emphasis added); see also Crooks v.
State, 710 So. 2d 1041, 1043 (Fla. Dist. Ct. App. 1998)
(“Because the record does not establish how far into the righthand
emergency lane [defendant] drove on any of three occasions,
there is no basis to state that he was outside the ‘practicable’
lane.” (emphasis added)). The Honda touched the lines
only twice, both times before making safe lane changes. It is
reasonable that a driver with no cars abreast of him might
12 UNITED STATES v. COLIN
veer slightly within his lane or over the lane line in the course
of making a lane change to ensure that it is safe to do so.
[9] In sum, we conclude that the facts, taken together, support
the conclusion that Carmichael lacked probable cause to
stop Estrada-Nava and Colin for lane straddling.
2. California Vehicle Code § 23152 (driving under the
influence)
At the evidentiary hearing on the motion to suppress, Carmichael
testified that he stopped Estrada-Nava and Colin in
part for a “possible” violation of driving under the influence.4
He described Estrada-Nava’s “unusual” driving pattern as follows:
Most people who travel the highway travel the main
portion of the lane which is pretty much the center
of the lane. To travel the extreme right for an
extended period of time and then travel to the
extreme left portion of the lane and then make the
lane change and then travel again to the extreme left
portion of that lane, those are irregular driving patterns.
The district court concluded on the basis of Carmichael’s testimony
that “he was reasonable in concluding . . . that the
mere fact Estrada-Nava signaled as he moved back and forth
across the highway did not neutralize the erratic pattern of
driving he observed.” We disagree.
Although we recognize that in some cases evidence of
weaving might be indicative of driving under the influence,
we disagree that the evidence in this case was sufficient for
Carmichael to harbor a reasonable suspicion that Estrada-
4Carmichael also testified that he thought Estrada-Nava was possibly
fatigued or ill.
UNITED STATES v. COLIN 13
Nava was driving under the influence, thus justifying the stop.
Carmichael testified that he observed Estrada-Nava and
Colin’s vehicle for 35-45 seconds before pulling it over, and
that during this time, Estrada-Nava drove within the speed
limit and properly activated his turn signals before making
lane changes. Carmichael thought Estrada-Nava was “possibly”
driving under the influence because the car’s wheels
touched the fog line on the right side of the right lane for 10
seconds and then, about 5-10 seconds later, touched the yellow
line on the far left of the left lane for another 10 seconds.
[10] In People v. Perez, an officer with training and experience
in handling cases involving driving under the influence
observed a driver weave within his lane (two feet in each
direction) for approximately three-quarters of a mile. The
court considered as a matter of first impression in California
whether an officer “may lawfully detain a driver [on the basis
of driving under the influence] who has been observed to be
weaving within his lane.” 221 Cal. Rptr. 776, 777 (Cal. App.
Dep’t Super. Ct. 1985) (emphasis added).5 Adopting the reasoning
of cases from other states in which courts have held
that weaving within one’s lane for substantial distances
creates reasonable suspicion of driving under the influence,
the court held that “pronounced weaving within a lane provides
an officer with reasonable cause to stop a vehicle on
suspicion of driving under the influence where such weaving
continues for a substantial distance.” Id. at 778 (emphasis
added).
[11] Here, Estrada-Nava and Colin did not demonstrate
“pronounced weaving” of up to two feet in either direction, or
weave for a “substantial distance.” In fact, the only “suspicious”
behavior Carmichael observed was Estrada-Nava and
Colin’s car touching the right fog line and the center yellow
line each for 10 seconds, after legitimate lane changes. This
5The court noted that it has been clearly established in California that
“weaving from one lane to another justifies an investigatory stop.” Id.
14 UNITED STATES v. COLIN
is hardly “pronounced weaving.” See State v. Caron, 534
A.2d 978, 979 (Me. 1987) (holding that “single, brief straddling
of the center line of the undivided highway, with no
oncoming traffic in sight and no vehicles passing on the left
. . . did not give rise to an objectively reasonable suspicion”
of intoxication or fatigue); State v. Bello, 871 P.2d 584, 587
(Utah Ct. App. 1994) (finding a single incident of weaving in
windy conditions insufficient to justify a stop based on suspicion
of drunk driving). Similarly, Carmichael’s entire observation
lasted only 35-45 seconds, which is not long enough to
show that Estrada-Nava and Colin were weaving for a “substantial”
distance. We agree with the Tenth Circuit, which has
aptly observed:
[I]f failure to follow a perfect vector down the highway
or keeping one’s eyes on the road were sufficient
reasons to suspect a person of driving while
impaired, a substantial portion of the public would
be subject each day to an invasion of their privacy.
United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993),
overruled on other grounds by United States v. Botero-
Ospina, 71 F.3d 783, 786-87 (10th Cir. 1995).
As a final note, we find it curious that Carmichael did not
conduct a sobriety field test or ask Estrada-Nava if he had
been drinking when he stopped the car. This further convinces
us that Carmichael did not harbor reasonable suspicion that
Estrada-Nava was driving under the influence. See United
States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996) (concluding
that where officer did not conduct a road sobriety test
after stopping the defendant for briefly crossing into the right
emergency shoulder lane, he did not have reasonable suspicion
that the defendant was intoxicated); United States v.
Ochoa, 4 F. Supp. 2d 1007, 1012 (D. Kan. 1998) (finding that
a single drifting onto the shoulder did not justify stopping
defendant on the basis of fatigue and that officer’s failure to
UNITED STATES v. COLIN 15
conduct a sobriety test suggests he did not have reasonable
suspicion defendant was intoxicated).
[12] In sum, we conclude Carmichael did not have reasonable
suspicion to stop Estrada-Nava and Colin based on lane
straddling or driving under the influence. As a result, the
methamphetamine he seized through the search of their vehicle
should have been suppressed. See United States v. Twilley,
222 F.3d 1092, 1097 (9th Cir. 2000) (finding that search and
resulting seizure were products of illegal stop and that evidence
therefore should have been suppressed); United States
v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000) (suppressing
evidence that police officer gathered pursuant to an
unconstitutional stop); United States v. Millan, 36 F.3d 886,
890 (9th Cir. 1994) (“Because the interrogation and search
were a direct result of the illegal stop, we hold that all of the
evidence must be suppressed.”). We further conclude that
Estrada-Nava’s and Colin’s consent to search their car was
unlawfully obtained pursuant to the illegal stop and therefore
did not purge the taint.6 See United States v. Chavez-
Valenzuela, 268 F.3d 719, 727 (9th Cir. 2001) (“[E]vidence
obtained subsequent to an illegal investigation is tainted by
the illegality and thus inadmissible, notwithstanding the suspect’s
consent, unless subsequent events have purged the
taint.”), amended by 279 F.3d 1062 (9th Cir. 2002); Twilley,
222 F.3d at 1097 (holding that the evidence obtained as part
of an illegal stop should have been suppressed even where the
defendants consented to the search).
6There were no intervening events that purged the illegal taint. See
United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1127 (9th Cir. 2002)
(holding that evidence obtained pursuant to an unlawful stop should have
been suppressed because there were no intervening events that purged the
illegal taint).
16 UNITED STATES v. COLIN
C. Ex Parte Application for Out-of-District
Subpoena
Estrada-Nava and Colin also appeal the district court’s
denial of their ex parte application for issuance of an out-ofdistrict
subpoena duces tecum pursuant to Federal Rule of
Criminal Procedure 17(c). In their respective plea agreements,
Estrada-Nava and Colin reserved only their right to seek
review of the district court’s denial of the motion to suppress.
They did not reserve the right to appeal “any other determination
or issue,” including the district court’s denial of their ex
parte application for a subpoena duces tecum. As a result,
Estrada-Nava and Colin have waived this issue on appeal, and
we decline to rule on it. See United States v. Chon, 210 F.3d
990, 995 (9th Cir. 2000) (holding that appellants waived all
issues “not expressly reserved for appeal” in their conditional
guilty pleas); United States v. Alexander, 761 F.2d 1294, 1303
(9th Cir. 1985) (declining to rule on issues that were not
reserved for appeal in the conditional plea agreement).
CONCLUSION
Because we hold that Carmichael did not have reasonable
suspicion to stop Estrada-Nava and Colin and that the motion
to suppress therefore should have been granted, we need not
address the constitutionality of Estrada-Nava’s and Colin’s
subsequent detention.
REVERSED and REMANDED.
UNITED STATES v. COLIN 17

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