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United States v. Cantero

United States District Court, D. Colorado

January 14, 2019




         THIS MATTER comes before the Court pursuant to Ms. Cantero's Objections (# 49) to the Magistrate Judge's October 2, 2018 Recommendation (# 41) that Ms. Cantero's Motion to Suppress (# 26) be denied, and the Government's response (# 50).


         Ms. Cantero is the subject of a two-count Indictment (# 1) filed February 27, 2018, charging her with possession of heroin and methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a) and (b)(1)(A). She was apprehended at 1:41 p.m. on September 29, 2017 on I-70 eastbound near Loma, Colorado, pursuant to a traffic stop initiated by Deputy Miller of the Grand Junction Police Department. Deputy Miller initially stopped Ms. Cantero for failing to remain in her lane. During the stop, Deputy Miller summoned Trooper Gosnell of the Colorado State Patrol, who arrived at the scene with a canine unit and conducted a search of the vehicle. After the canine unit alerted while making a pass around Ms. Cantero's vehicle, the officers physically searched the vehicle's trunk, and located the drugs in question.

         Ms. Cantero moved (# 26) to suppress the fruits of the search, arguing that: (i) Deputy Miller lacked reasonable suspicion to stop Ms. Cantero for a traffic violation, as Deputy Miller's report states only that Ms. Cantero drove on the fog line (the solid white line of the right side of the rightmost travel lane), not over it, and that driving on the fog line does not constitute a violation of C.R.S. § 42-4-1007; and that (ii) Deputy Miller prolonged the stop beyond the time necessary to issue a traffic citation, without reasonable suspicion, for the purpose of allowing Trooper Gosnell and the canine unit to arrive and perform a search.

         The Court referred Ms. Cantero's motion to the Magistrate Judge for a recommendation, and on October 2, 2018, the Magistrate Judge held an evidentiary hearing at which both Deputy Miller and Trooper Gosnell testified. At the conclusion of that hearing, the Magistrate Judge recommended that Ms. Cantero's motion be denied. Ms. Cantero filed timely Objections (# 49) to the recommendation, as discussed below.


         A. Standard of review

         The Magistrate Judge's Recommendation was issued pursuant to 28 U.S.C. §636(b)(1)(B). Under that statute, this Court makes a “de novo determination of those portions of the . . . recommendations to which objection is made.” Notably, the requirement is that this Court conduct a de novo determination, not necessarily a de novo hearing. The Court is possessed of wide discretion to accept, reject, or modify the Magistrate Judge's proposed findings, including resolving issues of credibility. U.S. v. Raddatz, 447 U.S. 667, 676 (1980).

         B. Initial stop

         A traffic stop is a seizure under the Fourth Amendment, and thus the officer initiating it must have reasonable suspicion that “this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.” U.S. v. Salas, 756 F.3d 1196, 1200-01 (10th Cir. 2014). Whether reasonable suspicion exists is an objective inquiry determined by the totality of the circumstances and the officer's subjective motivation for the stop is irrelevant. Id. at 1201. The Government bears the burden of proving the reasonableness of the officer's suspicion at all pertinent stages of the encounter. U.S. v. Vance, 893 F.3d 763, 773 (10thCir. 2018).

         Deputy Miller testified that, while driving eastbound on a straight stretch of I-70, in weather conditions involving no more than a “slight breeze, ” he approached a silver Nissan Ultima in the right-hand lane. He observed that “the driver . . . was actually traveling on the white fog line, or shoulder line, out - about in the middle of the tire. . . right down the center of the line. So the outside portion of the tire would have been over the line, but the majority of the tire was . . . right in the middle of the fog line.” On cross-examination, Deputy Miller clarified that “half of the tire was on the fog line. The fog line is 3 or 4 inches wide. If the center of that tire is on the fog line, . . . the outside tire's edge of that is going to be over the fog line.” Deputy Miller observed the vehicle travel in that manner for “at least a quarter of a mile” or approximately 12 seconds. As Deputy Miller approached the vehicle, it “made an abrupt swerve or crunching back into the center” of the lane. Believing that the driver might be fatigued, distracted, or possibly intoxicated, Deputy Miller decided to pull the driver over for “the traffic violation of - the lane violation or weaving.”

         C.R.S. § 42-4-1007(1)(a) provides that “a vehicle shall be driven as nearly as practicable entirely within a single lane. . . .” Ms. Cantero argues that the Court should interpret that statute consistent with the 10th Circuit's opinion in U.S. v. Gregory, 79 F.3d 973 (10th Cir. 1996). There, a police officer pulled over a driver of a U-haul truck after observing the truck “cross two feet into the right shoulder emergency lane of the interstate” on a single occasion. Eventually, a search of the truck revealed the presence of illegal drugs, and the driver was charged with possession. Reversing the trial court's denial of a motion to suppress the fruits of the stop, the 10th Circuit explained that “we do not find that an isolated incident of a vehicle crossing into the emergency lane of a roadway is a violation of [a state statute effectively identical to C.R.S. § 42-4-1007(1)(a)].” It noted that, in the circumstances presented:

the road was winding, the terrain mountainous and the weather condition was windy. Under these conditions any vehicle could be subject to an isolated incident of moving into the right shoulder of the roadway, without giving rise to a suspicion of criminal activity. The driver may have decided to pull over to check his vehicle and then have a sudden change of mind and pulled back into the traffic lane. Since the movement of the vehicle occurred toward the right shoulder, other traffic was in no danger of collision. These facts lead us to conclude that the single occurrence of moving to the right shoulder of the roadway . . . could not constitute a violation of [traffic] law.

79 F.3d at 978.

         Since Gregory, the 10th Circuit has been careful to distinguish and limit that ruling to its particular facts - e.g. a winding road and significant wind. See U.S. v. Langel, 269 Fed.Appx. 787, 791 (10th Cir. 2008) (collecting cases). For example, in U.S. v. Ozbirn, 189 F.3d 1194 (10th Cir. 1999), the 10th Circuit affirmed the denial of a motion to suppress a traffic stop where the police officer observed a motor home “drift onto the shoulder twice in less than a quarter of a mile.” The court initially conceded that “when an officer merely observes someone drive a vehicle outside the marked lane, he does not automatically have probable cause to stop that person for a traffic violation.” But it found that, “[u]nlike the factual scenario in Gregory, . . . the present case involves no such adverse physical conditions, ” as the “weather was sunny and not unusually windy, and the road was smooth and dry with only a gentle curve and slight uphill grade.” The court also distinguished Gregory insofar as “the defendant in Gregory drifted across the lane only once, while Ozbirn drove onto the shoulder twice within a quarter mile.” Thus, the 10th Circuit held that the traffic stop in Ozbirn was appropriate. 189 F.3d at 1198.

         Similarly, in U.S. v. Alvarado, 430 F.3d 1305 (10th Cir. 2005), the officer observed the defendant's Jeep “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 right hand lane.” Affirming the denial of the defendant's suppression motion, the 10th Circuit emphasized that Gregory “does not stand for the proposition that a single instance of drifting onto the shoulder can never be a violation of a traffic statute.” (Emphasis in original.) It noted that, unlike Gregory, “there were no adverse weather or road conditions” that might have excused the defendant's failure to stay in his lane. It also rejected the defendant's invitation to “hold that an officer must observe something more than a single lane crossing in order to reasonably suspect a violation” of traffic laws; instead, the court explained that, rather than bright-line rules, the appropriate analysis requires ...

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