                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 14, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 11-5010
                                              (D.C. No. 4:10-CR-00121-GKF-1)
    RUBEN FLORES-OLMOS, a/k/a                            (N.D. Okla.)
    Angel Olmos, a/k/a Eduardo Muniz,
    a/k/a Edrado Muniz, a/k/a Angel Perez
    Olmos, a/k/a Alfonso,

                Defendant-Appellant


                            ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.



         Ruben Flores-Olmos pleaded guilty to one count of being an alien in the

United States after deportation but reserved his right to appeal the district court’s

denial of his motion to suppress evidence acquired during a traffic stop. On

appeal, Flores-Olmos argues that he was the victim of racial profiling. He further


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
contends that the Oklahoma seat belt law is ambiguous and that the doctrine of

lenity should absolve him. Finding no error in the district court’s refusal to

suppress evidence of Flores-Olmos’s illegal presence in the United States, we

affirm.

      Flores-Olmos was stopped by a Nowata County, Oklahoma, deputy sheriff

after the deputy saw a passenger in Flores-Olmos’s pickup hanging his upper

body out of the passenger-side window in a fifty-five mile zone and apparently

not wearing a seatbelt. 1 Flores-Olmos was unable to produce a driver’s license or

any other identification. His passenger showed the deputy an identification card

apparently issued in Mexico. The deputy then asked Flores-Olmos whether he

was in the United States legally. He admitted he was not. Flores-Olmos was

arrested and jailed for failure to have a valid drivers’ license. The local district

attorney refused to prosecute the traffic offense; Flores-Olmos was turned over to

the custody of the Department of Homeland Security and was removed to Mexico.

      At the suppression hearing, the deputy testified that he determined to stop

the pickup because of the perceived seatbelt violation and that he could not

determine the nationality of the pickup’s occupants until he approached the

stopped vehicle. In denying the motion to suppress, the district court ruled that


1
       The passenger actually had his seatbelt fastened over his lap but had the
diagonal shoulder belt under his right arm instead of across his chest and over his
right shoulder. This is a violation of Oklahoma law which requires that seatbelts
be “properly adjusted.” Okla. Stat. tit. 47, § 12-417(A)(1).

                                          -2-
the officer had reasonable cause to pull Flores-Olmos over because he observed a

passenger apparently not wearing a seat belt, contrary to Oklahoma law. The

court further ruled that, once having made a legal stop, the officer was allowed to

request a driver’s license and vehicle registration, run a computer check, and

issue a citation.

       We review the factual findings underlying the denial of a motion to

suppress for clear error. United States v. Le, 173 F.3d 1258, 1264 (10th Cir.

1999). While we view the record in the light most favorable to the State, the

ultimate question of whether the State’s conduct was reasonable is a legal

question we consider de novo. See id.

       Under the Fourth Amendment, a traffic stop constitutes a seizure and

therefore must be “reasonable.” Delaware v. Prouse, 440 U.S. 648, 663 (1979).

A stop is reasonable if it is based on an observed traffic violation or a reasonable

articulable suspicion that such a violation has occurred or is occurring.

United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc).

Reasonable suspicion is “a particularized and objective basis” for suspecting the

person stopped of criminal activity. United States v. Cortez , 449 U.S. 411,

417-18 (1981); see also United States v. Callarman, 273 F.3d 1284, 1287

(10th Cir. 2001) (“While either probable cause or reasonable suspicion is

sufficient to justify a traffic stop, only the lesser requirement of reasonable

suspicion is necessary.”).

                                          -3-
      We are not convinced by Flores-Olmos’s challenge to the traffic stop. Here,

the district court made the factual finding that the deputy had reasonable cause to

pull the pickup over because he observed what appeared to be an unrestrained

passenger in the front-seat area of the vehicle. None of the evidence noted by

Flores-Olmos establishes that this finding was clearly erroneous. In light of this

factual finding, the accompanying legal conclusion is justified: the deputy had “a

particularized and objective basis,” Cortez, 449 U.S. at 417, for suspecting a

violation of the Oklahoma seatbelt law.

      “[A]s long as [an] officer’s questioning does not extend [the] length of [a]

traffic detention, there is no Fourth Amendment issue regarding the content of the

officer’s questions.” United States v. Guerrero-Espinoza, 462 F.3d 1302, 1308

n.6 (10th Cir. 2006) (citing United States v. Alcaraz-Arellano, 441 F.3d 1252,

1258 (10th Cir. 2006)). Flores-Olmos does not argue that the detention was

unreasonably prolonged because of the deputy’s questioning.

      Turning to the deputy’s particular question to Flores-Olmos about his

immigration status, we note that officers “can validly ask questions during a

lawful traffic stop that are unrelated to the stop.” Guerrero-Espinoza, 462 F.3d at

1308 n.6 (citing Muehler v. Mena, 544 U.S. 93, 101 (2005)). The deputy testified

here that he asked about Flores-Olmos’s immigration status before he arrested

him for not having a driver’s license. An officer does not need reasonable

suspicion to inquire about immigration status. Mena, 544 U.S. at 101; see also

                                          -4-
United States v. Salinas-Calderon, 728 F.2d 1298, 1301 n.3 (10th Cir. 1984) (“A

state trooper has general investigatory authority to inquire into possible

immigration violations.”).

      Focusing on Flores-Olmos’s charge of racial profiling, we note the

Supreme Court’s admonition that “[s]ubjective intentions play no role in ordinary,

probable-cause Fourth Amendment analysis,” Whren v. United States, 517 U.S.

806, 813 (1996). Racial profiling issues concerning the intentional discriminatory

application of the law are the province of the Equal Protection Clause. Id. In

analyzing a charge of racial profiling in the context of a traffic stop, we have held

a defendant

      must present evidence from which a jury could reasonably infer that
      the law enforcement officials involved were motivated by a
      discriminatory purpose and their actions had a discriminatory effect.
      To satisfy the discriminatory-effect element, one who claims
      selective enforcement must . . . make a credible showing that a
      similarly-situated individual of another race could have been, but
      was not, [stopped or] arrested . . . for the offense for which the
      defendant was [stopped or] arrested. . . . And the
      discriminatory-purpose element requires a showing that
      discriminatory intent was a motivating factor in the decision to
      enforce the criminal law against the defendant. Discriminatory intent
      can be shown by either direct or circumstantial evidence.

Alcaraz-Arellano, 441 F.3d at 1264 (alterations in original) (citations and internal

quotation marks omitted). There is no evidence even remotely approaching this

standard here. The stop was not rendered unreasonable on the ground that, after

the stop was made, the deputy noticed the Hispanic appearance of the pickup


                                          -5-
occupants. The stop was based on an observed apparent traffic violation, not on

the appearance of Flores-Olmos and his passenger.

      Finally, Flores-Olmos argues that Oklahoma’s seatbelt law is ambiguous

and that the rule of lenity requires suppression. “When confronted with an

ambiguous criminal statute, the rule of lenity instructs courts to interpret those

statutes in favor of the accused.” United States v. Metzener, 584 F.3d 928, 934

(10th Cir. 2009) (internal quotation marks omitted). The state seatbelt law

requires that front-seat occupants of passenger cars wear properly adjusted

seatbelts. See Okla. Stat. tit. 47, § 12-417(A)(1). Included in the definition of

“passenger cars” are “the passenger compartments of pickups, vans, minivans,

and sport utility vehicles.” Id. § 12-417(A)(2). Trucks are not considered

“passenger cars.” See id. Flores-Olmos argues that his vehicle could be

considered either a pickup or a truck and thus the law is ambiguous. This

argument is meritless.

      Pictures in the record show that Flores-Olmos’s vehicle was a pickup.

R. Vol. 1 at 77-78, 80. The deputy described it as such in his incident report, and

the district court found that the vehicle was “clearly a pickup.” Id., Vol. 2 at 50.

And finally, the Oklahoma Attorney General has clarified that “[p]ick-up trucks

which are not licensed as farm vehicles . . . must comply with the mandatory seat

belt law set forth at 47 O.S. 12-417(A)(1999).” 2000 OK AG 44, 2 (2000).




                                          -6-
Flores-Olmos’s pickup was not licensed as a farm vehicle, and thus Flores-Olmos

and his passenger were required to wear properly adjusted seatbelts.

      Because the stop was justified at its inception by the deputy’s observation

that a seatbelt violation may be occurring, and because the deputy’s actions were

“reasonably related in scope to the circumstances that first justified the

interference,” United States v. Cline, 349 F.3d 1276, 1286 (10th Cir. 2003)

(internal quotation marks omitted), the district court was correct to deny

Flores-Olmos’s suppression motion.

      We have granted the government’s motion to supplement the record on

appeal and now order the supplemental record to remain sealed. The judgment of

the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




                                          -7-
