430 F.3d 1305 (10th Cir. 2005), 05-4064, United States v. Alvarado

Docket Nº:05-4064.
Citation:430 F.3d 1305
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Emiliano W. ALVARADO a/k/a Alvarado-Guerra, Defendant-Appellant.
Case Date:December 13, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1305

430 F.3d 1305 (10th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Emiliano W. ALVARADO a/k/a Alvarado-Guerra, Defendant-Appellant.

No. 05-4064.

United States Court of Appeals, Tenth Circuit.

Dec. 13, 2005

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, D.C. NO. 04-CR-134-DAK.

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Stephen R. McCaughey, Salt Lake City, Utah, for Defendant - Appellant.

Diana Hagen, Assistant United States Attorney, Paul M. Warner, United States Attorney, District of Utah, Salt Lake City, Utah, for Plaintiff - Appellee.

Before BRISCOE, ANDERSON, and O'BRIEN, Circuit Judges.

ANDERSON, Circuit Judge.

Emiliano Alvarado entered a conditional plea of guilty to one count of possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), reserving his right to appeal the district court's denial of his motion to suppress. He now appeals that ruling, arguing that the district court erred in holding that the police stop of his vehicle was reasonable based on a single instance of crossing over the right fog line of the highway, where the relevant Utah statute requires driving "as nearly as practical entirely within a single lane." Utah Code Ann. § 41-6-61(1).1 we affirm.

BACKGROUND

At approximately 3 p.m. on February 19, 2004, Utah Highway Patrol Trooper Nick Bowles was driving eastbound on Interstate 70 and observed a Jeep Cherokee, which Alvarado was driving, cross "about a foot" over the right fog line of the highway, continue traveling over the line "for a few seconds," and then cross back to the righthand lane. Mot. to Suppress Hr'g, R. Vol. II at 5. According to Trooper Bowles' testimony and the findings of the district court, "[i]t was a clear and sunny day with

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no wind or other adverse weather conditions." Mem. Decision & Order at 2, R. Vol. I. The highway at that location "was straight and flat" and "was dry at the time," with "no pot holes, debris, or other obstructions in the roadway." Id. Based on these "ideal driving conditions," id., Trooper Bowles testified that he "felt there was no reason" for the Jeep "to be crossing the line" and was therefore "concerned that [the driver] might be impaired or fatigued." Mot. to Suppress Hr'g, R. Vol. II at 5. According to Trooper Bowles, the majority of accidents that he had handled on Interstate 70 involved "single vehicle rollovers, most of which are caused by vehicles crossing the fog line, either they never correct themselves and go off or else they over-correct and come back on and roll." Id. at 20. Trooper Bowles was also aware that failing to maintain one's vehicle in a single lane was a traffic infraction under Utah state law.

Thus, after observing the Jeep cross the fog line, Trooper Bowles "turned on his emergency lights and pulled over [Alvarado]." Mem. Decision & Order at 2, R. Vol. I. Trooper Bowles asked Alvarado to sit in the front passenger seat of the patrol car, where the trooper asked him about his travel plans while dispatch ran a check on Alvarado's license, registration, and criminal...

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