                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                MAY 20 2003
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 02-6153
 HENRY LAWRENCE BORREGO, JR.,                            (D.C. No. CR-01-91-T)
                                                           (W.D. Oklahoma)
       Defendant-Appellant.
 __________
 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 02-6165
 JORGE MARTELL, also known as                            (D.C. No. CR-01-91-T)
 George Carter,                                            (W.D. Oklahoma)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before KELLY, BALDOCK, and BRISCOE, Circuit Judges


       Defendants-appellants Henry Borrego and Jorge Martell appeal their convictions

of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846.


       *
        This order and judgment is not binding precedent, except under the doctrines of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.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                             I.

       On July 3, 2000, Borrego was driving a tractor-trailer with an empty flatbed trailer

on Interstate 35 in Oklahoma City. Martell was a passenger in the tractor-trailer. Police

Officer Daimon Alexander believed the tractor-trailer was following another vehicle too

closely. Officer Alexander followed the tractor-trailer and witnessed additional traffic

infractions, including changing lanes without signaling and slowing to a speed that

impeded the flow of traffic in the “inside” or “fast” lane of the highway. Officer

Alexander stopped the tractor-trailer, and a significant amount of cocaine was found in

the cabin of the tractor-trailer during a consensual search. Borrego and Martell were

indicted for possession of cocaine with intent to distribute and conspiracy to possess

cocaine with intent to distribute. Their motions to suppress the evidence discovered

during the consensual search and to dismiss the charges against them were denied.

Borrego and Martell entered pleas of guilty to the conspiracy charges under conditional

plea agreements.

                                            II.

Fourth Amendment Violation (Borrego and Martell)

       Borrego and Martell contend all evidence seized during the traffic stop should

have been suppressed because Officer Alexander violated their Fourth Amendment




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rights.1 The Fourth Amendment protects the “right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.

Const. amend. IV. A traffic stop has been described repeatedly as a “seizure” within the

meaning of the Fourth Amendment and, therefore, its protections fully apply to

investigatory stops of persons or vehicles that are suspected of violating the law. See

United States v. Arvizu, 534 U.S. 266, 273 (2002). The legality of a traffic stop is

measured by considering whether a stop was justified at its inception and, if so, whether

the subsequent investigation was reasonably related in scope to the circumstances that

justified the decision to seize the vehicle. See United States v. Hunnicutt, 135 F.3d 1345,

1348 (10th Cir. 1998) (analogizing traffic stops to investigative detentions and stating the

framework set forth in Terry v. Ohio, 392 U.S. 1, 20 (1968), is the yardstick for

reasonableness). On appeal, Borrego and Martell challenge only the district court’s

conclusion that the stop was justified at its inception.

       Conclusive proof of criminal activity is not a necessary prerequisite to a lawful

stop. See Hunnicutt, 135 F.3d at 1348. Rather, a traffic stop is lawful if the officer has



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         We presume, in light of the government’s failure to argue to the contrary, that
Martell has standing to raise a Fourth Amendment claim. See United States v. DeLuca,
269 F.3d 1128, 1131-32 (10th Cir. 2001) (recognizing passenger lacks the requisite
possessory interest to challenge a search of the vehicle, but stating passenger may
nonetheless contest the lawfulness of his detention and seek to suppress evidence
obtained as a result of his illegal detention); United States v. Dewitt, 946 F.2d 1497,
1499-1500 (10th Cir. 1991) (finding government’s failure to raise the standing argument
before the district court operated as a waiver).

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reasonable suspicion to believe that criminal activity “may be afoot.” Arvizu, 534 U.S. at

273. This court has described the reasonable suspicion standard as a particularized and

objective basis for suspecting the person stopped has been or is engaged in criminal

activity. See, e.g., United States v. Callarman, 273 F.3d 1284, 1286 (10th Cir. 2001).

When making the reasonable suspicion inquiry, we consider the totality of the

circumstances to determine whether there is a particularized and objective basis for

suspecting legal wrongdoing. See Arvizu, 534 U.S. at 273.

       Applying this standard, we have held that an officer’s observation of a motorist’s

failure to follow “any one of the multitude of applicable traffic and equipment

regulations” of the jurisdiction permits a seizure under the Fourth Amendment. United

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

273 F.3d at 1287 (holding a visible windshield crack gave officer a particularized and

objective basis to conclude a violation was occurring); United States v. Rivera, 867 F.2d

1261, 1263 (10th Cir. 1989) (stating officer’s observation of tailgating justified stopping

the driver). Even if it is determined upon investigation that the observed act is not a

violation of the law, the stop is constitutionally permissible as long as the officer had

objective, reasonable suspicion to believe a crime was occurring. See Callarman, 273

F.3d at 1287.

       After hearing witness testimony, the court found (1) Officer Alexander twice

observed the tractor-trailer change lanes without a prior signal in violation of 47 Okla.


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Stat. Ann. § 11-309; (2) Officer Alexander observed the tractor-trailer follow another

vehicle too closely in violation of 47 Okla. Stat. Ann. § 11-310; and (3) Officer

Alexander observed the tractor-trailer being driven at a speed that impeded the flow of

traffic in violation of 47 Okla. Stat. Ann. § 11-804. The district court determined these

observations provided Officer Alexander with a basis for a reasonable belief that the

driver had committed or was committing at least four violations of Oklahoma traffic laws.

       On appeal, Borrego and Martell attempt to characterize Officer Alexander’s traffic

stop as an impermissible roving patrol because Officer Alexander was a member of the

Central Oklahoma Metro Interdiction Team, referred to as COMIT. They rely upon City

of Indianapolis v. Edmond, 531 U.S. 32 (2000), which held that vehicle checkpoints with

the primary intention of drug interdiction violate the Fourth Amendment. Edmond does

not preclude a specialized task force from enforcing, even vigorously, the laws of the

jurisdiction served. Edmond only prohibits checkpoints designed to stop vehicles without

any level of suspicion for the sole purpose of “uncover[ing] evidence of ordinary criminal

wrongdoing.” Id. at 41-42. Officer Alexander stopped the tractor-trailer based on his

observations of violations of traffic laws. See Hunnicutt, 135 F.3d at 1348 (noting Fourth

Amendment is not violated when the government shows the officer has reasonable,

articulable suspicion that a traffic violation has occurred or is occurring and that this does

not require proof of actual violation).




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Void for vagueness (Borrego)

       Borrego argues the Oklahoma traffic laws upon which Officer Alexander relied to

justify the seizure are void for vagueness. “When reviewing a statute alleged to be vague,

courts must indulge a presumption that it is constitutional, and the statute must be upheld

unless the court is satisfied beyond all reasonable doubt that the legislature went beyond

the confines of the Constitution.” United States v. Saffo, 227 F.3d 1260, 1270 (10th Cir.

2000). A criminal defendant cannot successfully raise the void for vagueness argument

when he has engaged in conduct clearly proscribed by the challenged statute. See United

States v. Corrow, 119 F.3d 796, 803 (10th Cir. 1997).

       Borrego alleges “it is a violation of the Fourth Amendment for an officer, who is

part of a program of drug interdiction, to use vaguely written and subjectively determined

minor traffic violations to seek to legitimize what would otherwise be an unlawful roving

checkpoint pursued primarily for drug interdiction purposes.” Aplt. Br. at 14-15.

Borrego cites no cases in support of his assertions. Nor does he attempt to challenge the

district court’s conclusion that the statutes “are sufficiently precise and clear to enable a

reasonable person to understand the prohibited conduct.” Dist. Ct. Op. at 7. See

Kolender v. Lawson, 461 U.S. 352, 357 (1983).



Equal protection (Martell)

       Martell contends the district court erred in finding he failed to make a prima facie


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showing of an equal protection violation based on Officer Alexander’s selective

enforcement of traffic laws. Martell offered the expert testimony of Dr. James Horrell, an

associate professor of Business Administration at the University of Oklahoma, who

performed a statistical analysis of the daily reports prepared by Officer Alexander over a

four-month period of time. The analysis indicated that 25% of the driving population in

the Oklahoma city area was considered “non-white,” but 37% of the vehicles Officer

Alexander stopped were driven by “non-white” persons. The district court noted that “Dr.

Horrell declined to opine that the statistics reflect ‘selectivity’ in stops and searches, but

testified that he believed the results reflect a lack of ‘evenhandedness.’” Dist. Ct. Op. at

14. The court found that “[a]lthough Dr. Horrell’s analysis reflects some disparity in the

number of non-white traffic stops and searches, the court does not find the statistical

evidence sufficient to establish discriminatory impact.” Id. The court concluded Martell

had failed to establish a prima facie case of discrimination which would violate the Equal

Protection Clause and, even if he did, the government’s evidence established Officer

Alexander’s reasons for stopping the vehicle were not based upon race.

       We review a district court’s decision denying a motion to dismiss a criminal

indictment under an abuse of discretion standard. See United States v. Furman, 31 F.3d

1034, 1037 (10th Cir. 1994). Thus, a district court’s judgment will remain undisturbed

unless there is “a distinct showing it was based on a clearly erroneous finding of fact or

an erroneous conclusion of law or manifests a clear error of judgment.” United States v.


                                               7
Mitchell, 113 F.3d 1528, 1531 (10th Cir. 1997).

       As a matter of law, long-standing equal protection jurisprudence has recognized

that some measure of selectivity in the law enforcement arena is constitutionally

permissible. See Oyler v. Boles, 368 U.S. 448, 456 (1962). Moreover, while helpful,

purely statistical evidence is rarely sufficient to support an equal protection claim. See

McClesky v. Kemp, 481 U.S. 279, 293 n.12 (1987).

       The district court did not abuse its discretion in determining that Martell failed to

present a prima facie case of selective enforcement of traffic laws. Although Officer

Alexander indicated that he did not stop every vehicle for every violation that occurred,

there is no evidence that he used race or any other impermissible consideration as a factor

in deciding to stop a particular vehicle. Officer Alexander testified that he did not know

the race of Martell or Borrego when he stopped the tractor-trailer.

       AFFIRMED.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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