                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          NOV 5 2002
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 02-1066
 v.                                                 D.C. No. 01-CR-24-D
                                                       (D. Colorado)
 EDWARD JOSEPH STRABALA,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO, and HARTZ, Circuit Judges.



      Edward Joseph Strabala, a federal prisoner, appeals his conviction for

possession of methamphetamine with intent to distribute, arguing that the district

court should have suppressed certain evidence on Fourth Amendment grounds.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
                                          I

      On the morning of November 7, 2000, officers of the Colorado Springs

Police Department were patrolling Interstate 25 in response to speeding problems

near the Tejon Street exit. Using a radar gun, Officer Otto Knolhoff clocked a

red Camaro traveling at sixty-five miles per hour and notified Officer David

Nelson, who drove his police vehicle in pursuit. After the Camaro changed lanes,

Nelson observed a Chevy pickup truck speed up behind the Camaro. This truck,

which belonged to Strabala, appeared to Nelson to be following the Camaro

“within a couple feet . . . right on the Camaro’s bumper.” (Appellee’s App. at

28.) Nelson decided that the truck was following the Camaro too closely, a

violation of state and city law, and called for “cover.” (Id. at 31.) Nelson then

stopped the truck, abandoning his pursuit of the Camaro.

      As Nelson approached the truck, Strabala rolled down the window. Nelson

noticed that Strabala’s pupils were dilated, and smelled an odor coming from the

window that, based on his training and past experience in narcotics investigation,

he identified as methamphetamine. According to Nelson, he asked Strabala for

his license, insurance, and registration, and Strabala replied that he “did not have

it.” (Id. at 35.) Nelson then asked for permission to search the vehicle, and

Strabala responded with “no problem” or “go right ahead.” (Id.)

      While Nelson asked for permission to search the vehicle, Officer Duaine


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Peters arrived in response to Nelson’s call for cover. Peters asked Strabala a

second time for his license, registration, and proof of insurance. Strabala gave

Peters an identification card and told him his license was suspended for being a

habitual traffic offender. Peters considered Strabala under arrest at that point.

Before placing him in the police car, Peters conducted a pat-down search of

Strabala “to make sure he didn’t have anything on him, any weapons or anything.”

(Id. at 95.) Noticing some “large, hard objects” in Strabala’s left jacket pocket,

Peters reached into the pocket to identify them, and “could tell that it felt like

large, individually wrapped packages of what [he] recognize[d] to be drugs.”

(Id.)

        Peters notified Nelson that Strabala was a habitual traffic offender and had

narcotics in his pocket. By this time, Nelson had noticed a coffee can with a false

bottom in Strabala’s truck. Although there were no drugs in the can, Nelson later

testified that such cans are often used for storage of drugs. Believing Strabala to

be in custody for driving under the influence of drugs as well as driving without a

license while a habitual traffic offender, Nelson removed the drugs from

Strabala’s pocket, and also found $988 in currency. Either before or shortly after

the drugs were removed, Strabala was handcuffed. Officer Knollhoff, who had

also arrived at the scene, processed this evidence. At the police station, Strabala

was advised of his Miranda rights and proceeded to make incriminating


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statements to the police.

      Strabala was charged with one count of unlawful possession of fifty grams

or more of a mixture or substance containing methamphetamine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). At trial,

Strabala moved to suppress the coffee can found in his vehicle, the

methamphetamine and currency found on his person, and certain statements made

to the police. After holding an evidentiary hearing, the district court denied

Strabala’s motion to suppress. Strabala entered a conditional plea agreeement

under Federal Rule of Criminal Procedure 11(a)(2), reserving the right to appeal

the denial of his motion to suppress. Strabala was sentenced to 110 months’

imprisonment and five years’ supervised release. On appeal to this court, Strabala

argues that the traffic stop leading to his arrest was unjustified and that the pat-

down search of his person was unlawful. 1

                                          II

      “When reviewing an order granting or denying a motion to suppress, we

accept the district court’s factual findings unless they are clearly erroneous, and


      1
         Strabala does not argue on appeal that the statements he made to the
police officers should have been suppressed, except insofar as these statements
stemmed from the allegedly unjustified traffic stop and were thus “fruit of the
poisonous tree.” (Appellant’s Br. at 8.) As discussed below, we reject Strabala’s
argument that the traffic stop was unjustified. Because he makes no other
argument on appeal with respect to his statements to the police, we do not reach
the issue of whether such statements should have been suppressed.

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we view the evidence in the light most favorable to the district court’s

determination.” United States v. Caro, 248 F.3d 1240, 1243 (10th Cir. 2001).

“We are mindful that at a hearing on a motion to suppress, the credibility of the

witnesses and the weight given to the evidence, as well as the inferences and

conclusions drawn therefrom, are matters for the trial judge.” United States v.

Fernandez, 18 F.3d 874, 876 (10th Cir. 1994). Nevertheless, the ultimate

determination of reasonableness under the Fourth Amendment is a question of law

that we review de novo. Caro, 248 F.3d at 1243.

      Strabala’s first argument is that the initial traffic stop leading to his arrest

was unjustified. We disagree. At the suppression hearing, the district court

found that Strabala was traveling “within 2 to 3 feet of the Camaro,” and was

pulled over because he was “following too closely.” (Appellee’s App. at

170–71.) This factual finding is not clearly erroneous, and we must accept it.

Caro, 248 F.3d at 1243. We have held that a traffic stop is justified at the

inception, and therefore valid under the Fourth Amendment, when it is based on a

traffic violation of following too closely. United States v. Anderson, 114 F.3d

1059, 1063–64 (10th Cir. 1997). Although Strabala did introduce expert

testimony suggesting that Officer Nelson could not have observed Strabala’s

pickup following the Camaro within a few feet as he described, the district court




                                         -5-
had the discretion to disregard this testimony. There is no basis for overturning

the district court’s ruling with respect to the validity of the traffic stop.

      Next, Strabala characterizes the search of his person as a Terry pat-down

search, and argues that it was not justified by a suspicion that Strabala was

“armed and presently dangerous” as required by Terry v. Ohio, 392 U.S. 1, 24

(1968). In its ruling on the motion to suppress, however, the district court

analyzed the search of Strabala’s person not as a Terry pat-down, but as a search

incident to a lawful arrest. “A warrantless search preceding an arrest is a

legitimate ‘search incident to arrest’ as long as (1) a legitimate basis for the arrest

existed before the search, and (2) the arrest followed shortly after the search.”

United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998).

      When a search is conducted incident to a lawful arrest, there is no

requirement that the officers suspect the defendant to be armed and dangerous.

Nor is it necessary that the search take place after the arrest. Provided that the

arrest “followed quickly on the heels of the challenged search of petitioner’s

person,” it is not “particularly important that the search preceded the arrest or

vice versa.” Rawlings v. Kentucky, 448 U.S. 98, 111 (1980).

      Analyzing the pat-down of Strabala’s person, the district court noted that

“when Defendant was patted down, it was with the intention of effectuating an

arrest based upon the fact that he was an admitted habitual traffic offender


                                           -6-
driving without a valid license.” (Appellee’s App. at 209.) Accordingly, the

district court found that “the arrest” was “based on a legitimate traffic violation.”

(Id.) We must accept this factual finding of the district court. Testimony at trial,

moreover, established that Strabala “was taken into custody” in part because he

was “a habitual traffic offender” driving without a license. (Id. at 47.)

      Viewing this evidence in the light most favorable to the district court’s

ruling, Caro, 248 F.3d at 1243, we conclude that the pat-down search of

Strabala’s person was incident to his arrest for driving without a license as a

habitual traffic offender. That Strabala was not indicted for this offense is not

relevant to our Fourth Amendment analysis, for it is the cause for arrest and not

the charges eventually brought against the defendant that matters. The district

court correctly denied Strabala’s motion to suppress the evidence obtained from

the pat-down search of his person.

                                          III

      Strabala’s conviction is AFFIRMED.

      The mandate shall issue forthwith.


                                                ENTERED FOR THE COURT



                                                Carlos F. Lucero
                                                Circuit Judge


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