U.S. v. Bassols, 10–cr–02077.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Citation775 F.Supp.2d 1293
Docket NumberNo. 10–cr–02077.,10–cr–02077.
PartiesUNITED STATES of America, Plaintiff,v.Joaquin BASSOLS, Defendant.
Decision Date29 March 2011

775 F.Supp.2d 1293

UNITED STATES of America, Plaintiff,
v.
Joaquin BASSOLS, Defendant.

No. 10–cr–02077.

United States District Court, D. New Mexico.

March 29, 2011.


[775 F.Supp.2d 1295]

Nicholas Jon Ganjei, U.S. Attorney's Office, Albuquerque, NM, for Plaintiff.James C. Loonam, Federal Public Defenders Office, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER
JAMES A. PARKER, Senior District Judge.

The primary issue addressed in this opinion is whether a driver who drives on the line or stripe 1 that divides a lane of

[775 F.Supp.2d 1296]

traffic from another lane or on the line or stripe that separates a lane from the shoulder of the road violates a New Mexico statute that requires persons to drive “as nearly as practicable entirely within a single lane.” NMSA 1978, § 66–7–317. Resolution of this issue requires the Court to draw a fine line so that a “bright line” standard can be applied. Where that line is drawn hinges on the meaning of the words in the New Mexico statute. Having considered the arguments of both parties as well as the applicable law, the Court concludes that the word “lane” as used in the statute does not include the line or stripe that divides a lane of traffic from another lane or the line or stripe that separates a lane from the shoulder of the road. That is, the Court will apply a “bright line” standard that a driver who drives on the line or stripe dividing a lane of traffic from another lane or on the line or stripe that separates a lane from the shoulder has failed to drive “as nearly as practicable entirely within a single lane.”

FACTS

On March 14, 2011, at an evidentiary hearing on Defendant Joaquin Bassols' Motion to Suppress,2 the Court heard the testimony of Officer Hermilio Lucero, whom the Court found to be credible, and the Court viewed a dashcam video of the encounter between Officer Lucero and Bassols. Based on the testimony of Officer Lucero and the Court's review of the video, the Court makes the following factual findings:

On June 16, 2010, Officer Hermilio Lucero was patrolling a section of Interstate 40 between exit 81 and exit 89. In that area, Interstate 40 is a divided highway with two lanes of travel in each direction—an inner or left lane that is adjacent to the median and an outer or right lane that is adjacent to the shoulder. While Officer Lucero was traveling eastbound in the left lane, he observed a silver Mercury vehicle ahead of him traveling eastbound in the right lane. Officer Lucero noticed the Mercury veer toward the outer edge of the right lane, almost striking the solid stripe dividing the right lane from the shoulder, and then veer back to the left toward and very close to the dashed line dividing the left and right lanes. Officer Lucero then saw the Mercury veer back to the right and drive for a few seconds onto and on the solid stripe dividing the right lane from the shoulder. While Officer Lucero was certain that the tires of the Mercury went onto the solid stripe, he was unsure of whether the tires crossed over the stripe onto the shoulder because while he could see the vehicle go onto the stripe, he could not see how far across the stripe it went. Because of Officer Lucero's position slightly behind and to the side of the Mercury, the dashcam video does not conclusively show whether the Mercury drove on the shoulder by crossing the solid stripe that divided the lane from the shoulder. Officer Lucero believed what he observed to be a violation of NMSA 1978, Section 66–7–317 (1978), a statute which requires drivers to drive “as nearly as practicable within a single lane.” Officer Lucero testified that he had been trained that a vehicle that drives on a lane marker is in violation of Section 66–7–317. Because of this perceived violation, Officer Lucero turned on his emergency equipment and stopped the Mercury. At the

[775 F.Supp.2d 1297]

time that Officer Lucero observed the Mercury veer onto the stripe dividing the right lane from the shoulder, there were no adverse weather conditions, there was no wind, and there were no cross currents that might blow a vehicle from one side to the other. The day was clear, the view was unobstructed, and there was nothing in the road that would have caused the driver to veer out of his lane.

After stopping the Mercury, Officer Lucero asked the driver, who was identified as Bassols, to step out of the Mercury. Officer Lucero then engaged Bassols in general conversation about Bassols' travel plans while Officer Lucero filled out a warning citation for violating Section 66–7–317. Officer Lucero discovered that Bassols and a friend, his passenger, had flown from Miami, FL, where they both lived, to Phoenix, AZ where Bassols rented the vehicle. At the time of the stop, Bassols and his passenger were traveling to Memphis, TN to visit a friend who had recently been in an accident.

After completing the warning citation, Officer Lucero returned Bassols' driver's license and other documentation to Bassols. Officer Lucero then gave Bassols the citation and advised Bassols to have a good day and to be careful. Bassols turned around and began walking back toward his vehicle. As Bassols was walking away, Officer Lucero called out to Bassols. Bassols turned around and started walking toward Officer Lucero. When Bassols turned around, Officer Lucero asked “can I ask you a few more questions.” At the time when Officer Lucero asked Bassols if he would answer a few more questions, Officer Lucero was alone. Officer Lucero did not draw his gun or physically stop Bassols. Officer Lucero did not use an aggressive tone, and he did not yell at Bassols. Officer Lucero next asked if there was anything illegal in the Mercury and whether Bassols would be willing to let Officer Lucero search the Mercury. Bassols replied that there was nothing illegal in the vehicle and agreed to let Officer Lucero conduct a search of the vehicle. After Bassols read and signed a consent to search form, for safety reasons Officer Lucero conducted a pat-down search of Bassols for weapons. Officer Lucero directed Bassols to move to the side of the highway right-of-way, far away from the vehicle. Officer Lucero did not have any specific information that Bassols might have been armed or dangerous at the time that he conducted the pat-down. Next, Officer Lucero obtained consent to search the vehicle from the passenger and also did a brief pat-down of the passenger. At some point after Officer Lucero obtained consent to search the Mercury, another officer arrived at the scene. After briefly looking in the trunk and the passenger compartment of the Mercury, Officer Lucero deployed his canine to sniff the exterior of the vehicle. The dog alerted to the right front bumper where Officer Lucero ultimately located twenty-seven bundles of marijuana and one bundle of methamphetamine.

DISCUSSION

In his Motion to Suppress, Bassols argues that the evidence seized during the traffic stop should be suppressed for three reasons. First, Bassols contends that Officer Lucero did not have reasonable suspicion to stop the Mercury because Bassols did not commit a traffic violation. According to Bassols, Officer Lucero only saw Bassols weaving within his traffic lane, not between traffic lanes, and therefore Bassols did not violate Section 66–7–317. Second, Bassols contends that even if the traffic stop were valid, Officer Lucero impermissibly extended the length of the stop by asking Bassols to consent to a search of the vehicle after Bassols had already been cited for failing to maintain

[775 F.Supp.2d 1298]

his lane. Third, Bassols argues that by frisking Bassols for weapons prior to searching the vehicle, Officer Lucero violated the Fourth Amendment.

In its Response, the Government argues that the traffic stop was justified because Officer Lucero observed Bassols' weave out of his lane in violation of Section 66–7–317 and because Officer Lucero believed that Bassols might have been impaired. With respect to Bassols' argument that the stop was impermissibly extended, the Government contends that the post-citation encounter was consensual and that, even if the encounter were not consensual, Officer Lucero had reasonable suspicion to prolong the stop. Finally, the Government argues that Officer Lucero had a reasonable suspicion that Bassols posed a threat to officer safety that justified the pat-down search.

In his Reply, Bassols contends that because his vehicle touched but did not cross the lane marker, he did not violate Section 66–7–317. Bassols does not respond to the Government's assertion that the stop became consensual after Officer Lucero cited Bassols. Instead, Bassols argues that while Officer Lucero may have had consent to search the vehicle, this consent did not justify the pat-down search of Bassols that Officer Lucero performed prior to searching the vehicle.

I. Validity of the Traffic Stop

“Because a routine traffic stop is more akin to an investigative detention than a custodial arrest, a traffic stop is reasonable if (1) the officer's action was justified at its inception, and (2) the officer's action was reasonably related in scope to the circumstances which justified the interference in the first place.” United States v. DeGasso, 369 F.3d 1139, 1143 (10th Cir.2004). The first prong of this test requires the Court to determine if the stop was objectively justified. See id. A traffic stop is valid if an officer “had reasonable suspicion that th[e] particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.” U.S. v. Botero–Ospina, 71 F.3d 783, 787 (10th Cir.1995) (quotation marks omitted). As long as an officer had reasonable suspicion, the “actual motivations or subjective beliefs and intentions of the officer are irrelevant.” DeGasso, 369 F.3d at 1143.

A. Violation of Section 66–7–317

Officer Lucero stopped Bassols after observing Bassols' vehicle veer out of its lane and onto the solid...

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