133 F.3d 93398 CJ C.A.R. 183 NOTICE: Although citation of unpublished opinions remains unfavored,unpublished opinions may now be cited if the opinion has persuasive value on amaterial issue, and a copy is attached to the citing document or, if cited in oralargument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff--Appellee,v.Archie L. DUNN, III, Defendant--Appellant.
No. 97-3028.(D.Ct.No. 96-CR-40030)
United States Court of Appeals, Tenth Circuit.
Jan. 12, 1998.
ORDER AND JUDGMENT
*
Background
1
Before PORFILIO, TACHA, and, KELLY, Circuit Judges.12Following a jury trial in the United States District Court for the District of Kansas, Defendant Archie Dunn III was convicted of one count of possessionof marijuana with intent to distribute. He now appeals, arguing that both theinitial stop and the continued detention of his vehicle, which led to discovery of the marijuana, were improper. We exercise jurisdiction under 28 U.S.C. § 1291and affirm.3At approximately 4 p.m. on March 9, 1996, Trooper Dennis Gassman of theKansas State Highway Patrol was traveling on Interstate 70 in Russell County,Kansas, behind a Crown Victoria with Arizona tags, later determined to bedriven by defendant Archie Dunn. As he was following the Crown Victoria,Trooper Gassman observed the car swerve to the right over the solid white line
Discussionmarking the edge of the lane. The relevant section of I-70 is fairly straight andhas a slight grade. Trooper Gassman estimated that the wind that day was probably less than twenty miles an hour.4Based on his observation of the car swerving over the white line, the officer pulled over the Crown Victoria. He asked the driver for his license. Uponlearning that the driver was Archie Dunn of Durham, North Carolina, he became suspicious because earlier that afternoon he had run a registrationcheck on a black Mustang on I-70 that turned out to be registered to an ArchieDunn of Durham, North Carolina. Defendant informed the officer that theCrown Victoria was a rental car but could not produce the rental agreement.The officer then received a dispatch informing him that the car was overdue for return, that Archie Dunn had not rented the car and was not an authorizeddriver, and that the company wanted the car impounded. The officer leanedinto the car to return the registration and insurance information to the glovecompartment. At this time, he noticed a strong smell of raw marijuana. Hesearched the trunk of the car and found approximately 256 pounds of marijuanain brick form. The trooper then arrested Dunn for possession of marijuana.5Defendant was charged under 21 U.S.C. § 841(a)(1) with one count of possession of marijuana with intent to distribute. He filed a pretrial motion tosuppress the evidence seized during the stop of his car, arguing that the stopwas unjustified. The district court denied the motion. The case proceeded to a jury trial and defendant was convicted. He now appeals the denial of his motionto suppress.6Defendant seeks suppression of the evidence on the grounds that the stop of hiscar and the continued detention were unreasonable and thus violated the FourthAmendment. The ultimate determination of reasonableness under the FourthAmendment is a question of law which we review de novo. See United Statesv. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995), cert. denied, 116 S.Ct.1519 (1996).1. The Initial Stop of Defendant's Vehicle7Defendant contends that the initial stop of the vehicle he was driving wasunjustified. The Supreme Court has held that a traffic stop is proper if theofficer has probable cause to believe a traffic law has been violated, regardlessof pretext or ulterior motive on the part of the officer. See United States v.
Whenever any roadway has been divided into two (2) or more clearly marked lanesfor traffic, the following rules ... shall apply.Whren, 116 S.Ct. 1769 (1996). Thus, we must determine whether Trooper Gassman had probable cause to believe defendant had committed a trafficviolation with the single incident of swerving onto the right shoulder of thehighway.8The Kansas traffic statute at issue here, KAN. STAT. ANN. § 8-1522, reads inrelevant part:910(a) A vehicle shall be driven as nearly as practicable entirely within a singlelane and shall not be moved from such lane until the driver has first ascertainedthat such movement can be made with safety.11Dunn asserts that the phrase "as nearly as practicable" permits some leewayand does not allow strict enforcement of the statute, so that the trooper was not justified in stopping him based on his single incident, over a 20-mile distanceand on a windy day, of swerving. The defendant relies upon our decision inUnited States v. Gregory, 79 F.3d 973 (10th Cir.1996). There, we held that asingle incident of swerving to the right into the emergency lane did notconstitute a violation of Utah law.
2
See id. at 978.12Contrary to defendant's assertions, however, Gregory did not establish a bright-line rule that a single instance of swerving could never constitute a violation of the statute, but rather held that under the particular circumstances of that case,the motorist's single swerve did not provide sufficient justification for a stop. InGregory, we conducted a fact-specific inquiry and emphasized that, in additionto windy conditions, "[t]he road was winding, the terrain mountainous."
3
Id. Incontrast, the section of I-70 along which Dunn was traveling was straight witha slight grade, not winding and mountainous. Moreover, although we did notspecifically rely on this factor in deciding Gregory, we note that the defendantin Gregory was driving a U-Haul truck, a vehicle that is more difficult tocontrol than the sedan Dunn was driving. Thus, although Gregory and the present case involve very similar statutes, the facts of the two cases aredistinguishable. In light of the circumstances present in this case, we find thatTrooper Gassman had probable cause to believe defendant had committed aviolation of K.C.A. § 8-1522. Thus, there was no Fourth Amendment violation.132. Continued Detention and Search of the Vehicle '
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