UNITED STATES of America, Plaintiff-Appellee, v. Carlos BOTERO-OSPINA, Defendant-Appellant, 71 F.3d 783

STEPHEN H. ANDERSON, Circuit Judge. On our own motion we granted in banc review in this case to review that portion of the panel opinion in United States v. Guzman, 864 F.2d 1512 (10th Cir.1988), holding that the proper standard for determining whether a traffic stop is unconstitutionally pretextual is whether “under the same circumstances, a reasonable officer would have made the stop in the absence of the invalid purpose.” Id. at 1517 (quoting United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986)).

For the reasons set forth below, we hold that the Guzman standard should be overruled and we adopt a new test in this circuit for determining when an initial stop of an automobile violates the Fourth Amendment. BACKGROUND On March 9, 1993, Carlos Botero-Ospina was traveling eastbound on Interstate 70 just east of Salina, Utah. Deputy Phil Barney, of the Sevier County Sheriff’s Department, was traveling westbound in his patrol car when he observed Mr. Botero-Ospina’s vehicle swerve from the outside lane, straddle the center line, and swerve back to the outside lane.

Deputy Barney testified at the suppression hearing that along this particular stretch of highway, midway between Los An-geles and Denver, drivers frequently experience fatigue. R. Vol. IV at 10-12. Thus, he decided to stop the vehicle to ensure that the driver was not falling asleep or driving under the influence of drugs or alcohol. Deputy Barney approached the vehicle and asked Mr. Botero-Ospina for his driver’s li-cence and registration. The driver’s license was that of Mr. Botero-Ospina, but the vehicle was registered in New Jersey to another man, Jamie Higuero. Mr.

Botero-Ospina explained that he had recently purchased the vehicle from a woman in California and that she had told him he could obtain the title from a bank in New Jersey. Id. at 17-19. Mr. Botero-Ospina, however, was unable to identify the woman or to explain her connection to the registered owner of the vehicle, Mr. Higuero. In response to the deputy’s question regarding where he had been, Mr. Botero-Ospina indicated that he had just come from “Garfield.” Deputy Barney, however, knew from his experience that there was no such town along Mr. Botero-Ospina’s route.

Given the unusual nature of the encounter, Deputy Barney then asked Mr. Botero-Ospina if he had any weapons or drugs. Mr. Botero-Ospina answered that he did not. The deputy asked if he could search the vehicle, to which Mr. Botero-Ospina responded “sure.” Id. at 19-21. The search resulted in the seizure of 74 kilograms of cocaine from a secret compartment in the vehicle. Mr. Botero-Ospina moved to suppress the cocaine, arguing, inter alia, that the initial stop of his vehicle was pretextual, in violation of the Fourth Amendment.

Following a suppression hearing, the district court adopted the recommendation of the magistrate judge and denied the motion. Following his conviction and sentencing, Mr. Botero-Ospina filed this appeal. DISCUSSION I. In reviewing the denial of a motion to suppress, we accept the factual findings of the district court unless they are clearly erroneous. United States v. McSwain, 29 F.3d 558, 560 (10th Cir.1994). The ultimate determination of reasonableness under the Fourth Amendment, however, is a question of law which we review de novo. United States v. Horn, 970 F.2d 728, 730 (10th Cir.1992).

We view the evidence on appeal in the light most favorable to the government. United States v. Pena, 920 F.2d 1509, 1513 (10th Cir.1990), cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991). A traffic stop is a seizure within the meaning of the Fourth Amendment, “even though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1895-96, 59 L.Ed.2d 660 (1979). An ordinary traffic stop is, however, more analogous to an investigative detention than a custodial arrest. United States v.

Jones, 44 F.3d 860, 871 (10th Cir.1995); United States v. Walker, 933 F.2d 812, 815 (10th Cir.1991), cert. denied, 502 U.S. 1093, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). We therefore analyze such stops under the principles pertaining to investigative detentions set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Walker, 933 F.2d at 815.

To determine the reasonableness of an investigative detention, we make a dual inquiry, asking first “whether the officer’s action was justified at its inception,” and second “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20, 88 S.Ct. at 1879; see McSwain, 29 F.3d at 561; United States v. Dewitt, 946 F.2d 1497, 1501 (10th Cir.1991), cert. denied, 502 U.S. 1118, 112 S.Ct. 1233, 117 L.Ed.2d 467 (1992). In United States v.

Guzman, 864 F.2d 1512 (10th Cir.1988), we defined a pretextual traffic stop as one in which “the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop.” Id. at 1515. We identified as the “classic example” of an unconstitutional pretext stop the case of an officer stopping a motorist for a minor traffic violation in order to investigate the officer’s “hunch” that the individual is engaged in other illegal activity.

Such a stop, we concluded, is not justified at its inception, and therefore violates the Fourth Amendment. In Guzman, we adopted the following test to determine whether a stop is pretextual: ‘“whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.’ ” Id. (quoting United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986)). This has become known as the “would” or the “usual police practices” standard. Time has proven the Guzman standard unworkable. In our own circuit, its application has been inconsistent and sporadic.

For example, while in Guzman we defined usual police practices in terms of the entire New Mexico police force, see Guzman, 864 F.2d at 1518, in United States v. Fernandez, 18 F.3d 874 (10th Cir.1994), we focused on the common practices of a particular unit of the Utah Highway Patrol. Id. at 877. In some cases we have specifically rejected an analysis which would consider the practices of an individual officer, id.; see Guzman, 864 F.2d at 1518, while in other cases we have focused exclusively on the practices of the individual officers. See United States v.

Harris, 995 F.2d 1004, 1006 (10th Cir.1993); see also United States v. Werking, 915 F.2d 1404, 1408 (10th Cir.1990). Additionally, since Guzman, we have only once, in United States v. Lyons, 7 F.3d 973, 975 (10th Cir.1993), relied on the “would” standard to reverse an order denying suppression. In every other case, we have either implicitly or explicitly concluded that the stop was not pretextual based upon the officer’s having observed a traffic violation or having had reasonable suspicion that a violation was occurring. See, e.g., United States v. Dirden, 38 F.3d 1131, 1140 (10th Cir.1994); United States v.

Betancur, 24 F.3d 73, 77 (10th Cir.1994); Harris, 995 F.2d at 1005-06; United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993); Horn, 970 F.2d at 731; United States v. Deases, 918 F.2d 118, 121 (10th Cir.1990), cert. denied, 501 U.S. 1233, 111 S.Ct. 2859, 115 L.Ed.2d 1026 (1991); Werking, 915 F.2d at 1408; United States v. Corral, 899 F.2d 991, 994 (10th Cir.1990); United States v. Erwin, 875 F.2d 268, 272 (10th Cir.1989).

Moreover, the clear majority of other circuits considering the issue, as well as many state courts, including most within our circuit, have rejected the Guzman standard, either explicitly or implicitly. See United States v. Johnson, 63 F.3d 242, 247 (3d Cir.1995); United States v. Whren, 53 F.3d 371, 375-76 (D.C.Cir.1995), cert. granted, — U.S. -, 116 S.Ct. 690, — L.Ed.2d - (1996); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir.), cert. denied, - U.S. - , 115 S.Ct. 207, 130 L.Ed.2d 136 (1994); United States v.

Ferguson, 8 F.3d 385, 388-92 (6th Cir.1993), cert. denied, — U.S. - , 115 S.Ct. 97, 130 L.Ed.2d 47 (1994); United States v. Hassan El, 5 F.3d 726, 729-31 (4th Cir.1993), cert. denied, — U.S. - , 114 S.Ct. 1374, 128 L.Ed.2d 50 (1994); United States v. Kelley, 981 F.2d 1464, 1467 n. 3 (5th Cir.), cert. denied, — U.S. - , 113 S.Ct. 2427, 124 L.Ed.2d 647 (1993); United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir.1990), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448, 449 (1991); United States v.

Hope, 906 F.2d 254, 257-58 (7th Cir.1990), cert. denied, 499 U.S. 983, 111 S.Ct. 1640, 113 L.Ed.2d 735 (1991); State v. Corpany, 859 P.2d 865, 870 (Colo.1993) (en banc); Shelly v. State, 880 P.2d 401, 404 (Okla.Crim.App.1994); State v. Lopez, 873 P.2d 1127, 1136-37 & n. 4 (Utah 1994); Vrooman v. State, 642 P.2d 782, 784 (Wyo.1982); cf. United States v. Hadfield, 918 F.2d 987, 993 (1st Cir.1990), cert. denied, 500 U.S. 936, 111 S.Ct. 2062, 114 L.Ed.2d 466 (1991). But see United States v. Hernandez, 55 F.3d 443, 445 (9th Cir.1995); United States v. Harris, 928 F.2d 1113, 1116-17 (11th Cir.1991).

Because the Guzman standard is unworkable, we now adopt a new standard in this circuit for examining the constitutionality of a traffic stop: a traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.

It is irrelevant, for purposes of Fourth Amendment review, “whether the stop in question is sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop.” Ferguson, 8 F.3d at 391. It is also irrelevant that the officer may have had other subjective motives for stopping the vehicle. Our sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated “any one of the multitude of applicable traffic and equipment regulations” of the jurisdiction. Delaware v.

Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979). To the extent that our decision in United States v. Guzman, 864 F.2d 1512 (10th Cir.1988), is inconsistent with this holding, it is overruled. We adopt this new standard for several reasons, many of which have been discussed in other circuit court opinions rejecting our Guzman standard. See Johnson, 63 F.3d at 246-47; Whren, 53 F.3d at 375-76; Ferguson, 8 F.3d at 391-92. This new standard more effectively promotes an objective assessment of police officers’ actions, as required by the Supreme Court. See Maryland v.

Macon, 472 U.S. 463, 470, 105 S.Ct. 2778, 2782-83, 86 L.Ed.2d 370 (1985); Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). It eliminates the confusion and inconsistencies inherent in the application of the Guzman standard, and ensures that the validity of traffic stops “is not subject to the vagaries of police departments’ policies and procedures concerning the kinds of traffic offenses of which they ordinarily do or do not take note.” Ferguson, 8 F.3d at 392.

Finally, and significantly, by abandoning the Guzman standard for pretext, we rightly leave to the state legislatures the task of determining what the traffic laws ought to be, and how those laws ought to be enforced. II. It goes without saying that, by adopting the standard we do today, we do not abandon the traveling public to “the arbitrary exercise of discretionary police power.” Johnson, 63 F.3d at 247. Our holding in this ease properly focuses on the very narrow question of whether the initial stop of the vehicle is objectively justified.

We leave intact the vast body of law which addresses the second prong of the Terry analysis — whether the police officer’s actions are reasonably related in scope to the circumstances that justified the interference in the first place. Our well-developed ease law clearly circumscribes the permissible scope of an investigative detention. See United States v. Jones, 44 F.3d 860, 871-72 (10th Cir.1995); United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.1993); United States v. Walker, 933 F.2d 812, 816 (10th Cir.1991); Guzman, 864 F.2d at 1519; see also Johnson, 63 F.3d at 247.

Therefore, if an officer’s initial traffic stop, though objectively justified by the officer’s observation of a minor traffic violation, is motivated by a desire to engage in an investigation of more serious criminal activity, his investigation nevertheless will be circumscribed by Terry’s scope requirement. III. Applying the standard set forth in

Part I of this opinion to the facts of this case, we cannot conclude that the district court erred in denying Mr. Botero-Ospina’s suppression motion. At the suppression hearing, Deputy Barney testified — and the magistrate judge’s findings of fact reflect — that Mr. Botero-Ospina’s vehicle was traveling well below the posted speed limit and straddling the lane as it traveled eastbound on Interstate 70. R. Vol. IV at 10.

Additionally, Deputy Barney testified that, based upon his observation of the vehicle and his experience with motorists traveling down that stretch of road, he believed the driver may have been impaired or falling asleep. Id. at 12; R. Vol. II at 7. The magistrate judge found that Mr. Botero-Ospina’s vehicle was generally being operated in violation of Utah law. R. Vol. I, Doc. 32 at 12. Under the standard adopted today, Deputy Barney’s stop of Mr. Botero-Ospina’s vehicle was proper. He observed a violation of Utah Code Ann. § 41-6-61 relating to lane straddling.

Furthermore, he was able to articulate specific facts which, in light of his training and experience, gave rise to a reasonable suspicion that Mr. Botero-Ospina may have been driving under the influence of alcohol, in violation of Utah Code Ann. § 41-6-44. For either or both of these reasons, Deputy Barney was fully warranted in stopping Mr. Botero-Ospina. It is irrelevant whether a reasonable officer would have stopped Mr. Botero-Ospina under these circumstances. It is likewise irrelevant that Deputy Barney may have harbored a secret hope of finding evidence of drug trafficking.

Because the deputy had reasonable articulable suspicion that a traffic violation had occurred or was occurring, the stop did not violate the Fourth Amendment and we need inquire no further into the circumstances surrounding the stop. The other issues raised by Mr. Botero-Ospina in his appeal are not before the in banc court. We therefore return the case to the panel to address the remaining issues. . Deputy Barney’s patrol car was equipped with a video camera which began recording when the deputy activated his emergency equipment.

The video tape of the stop and ensuing search was admitted into evidence at the suppression hearing. R. Vol. IV at 13-15 (Ex. 1). . Furthermore, in Lyons, the officer’s inability to articulate any specific reason for pulling the defendant over — other than the officer's own "sixth sense” — made the stop unreasonable, and thus unconstitutional, under any standard. Id. at 976. .

The Ninth Circuit’s Hernandez opinion articulates the standard as follows: "[w]e focus on the objective facts and ask whether a reasonable officer, given the circumstances, would have made the stop absent a desire to investigate an unrelated serious offense. In making this inquiry, we often find it helpful to determine whether the stop conformed to regular police practices.” Hernandez, 55 F.3d at 445 (citations omitted). Of the six states within our circuit, it appears that New Mexico has not decided whether to adopt the Guzman standard. See State v.

Apodaca, 112 N.M. 302, 304, 814 P.2d 1030, 1032 (Ct.App.1991) ("As in State v. Benjamin C., 109 N.M. 67, 781 P.2d 795 (Ct.App.1989), we need not decide whether to follow Guzman....”). There is some confusion, however, because in State v. Wilson, 116 N.M. 793, 867 P.2d 1175 (1994), in addressing whether a stop was pretex-tual, the New Mexico Supreme Court observed that “[t]he evidence was that [the] Deputy ... stopped six to eight vehicles a month for seat belt violations, and that he would not have stopped the car if there had been no seat belt violation.” Id. at 787, 867 P.2d at 1179.

That appears to be an application of the Guzman standard. We are aware of no Kansas cases addressing this issue. . We do not address in this standard an officer performing a community caretaking function. . Straddling the lane is a violation of Utah law, see Utah Code Ann. § 41-6-61, as is driving under the influence of alcohol. See Utah Code Ann. § 41-6-44.