                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                           APR 18 2002
                      UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                      PATRICK FISHER
                                                                                 Clerk


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 00-3399
 v.
                                                (D.C. No. 00-10070-01-WEB)
                                                        (D. Kansas)
 WILLIAM A. KERR,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and LUCERO, Circuit Judges.



      Defendant-Appellant William A. Kerr entered a conditional guilty plea to

possession of marijuana with intent to distribute in violation of 21 U.S.C.

§ 841(a) and 18 U.S.C. § 2, reserving the right to appeal the district court’s

dismissal of his motion to suppress evidence seized from his automobile. Kerr

appeals pursuant to 28 U.S.C. § 1291, and we affirm.

      On April 11, 2000, Kansas Highway Patrol Troopers John Rule and Rich



      *
        This order and judgment is not binding precedent, except under the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.
Jimerson were patrolling I-70 in Ellis County, Kansas. During their patrol they

were behind defendant and witnessed the right tires of his vehicle cross over the

right solid lane marker of the right-hand lane by approximately one foot, cross

back into the lane, and cross over the marker again by approximately one foot.

The troopers pulled defendant over, and Rule approached him and asked for his

driver’s license and registration. Rule told defendant he stopped him because he

“was drifting around a little” and asked defendant if he was sleepy. (Appellant’s

App. at 22.) Defendant replied he was not sleepy and suggested that the wind

may have blown his truck around a bit.

         Rule and Jimerson first took notice of defendant’s vehicle because it had

Ontario, Canada, license plates and was an unusual Volkswagen military-type

vehicle. Jimerson had never seen such a vehicle and thought it could have been a

converted military truck. While Rule talked to defendant, Jimerson examined the

bed of the truck and laid on the ground to look at its underside. Jimerson

discovered what he believed to be a false compartment. Based on his professional

experience, Jimerson knew that false compartments are often used to transport

drugs.

         Jimerson relayed his suspicions to Rule after they returned to their patrol

car, and Rule subsequently returned defendant’s license and registration, issued a

warning for lane violations, and asked defendant if he was carrying anything


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illegal in his truck, a question to which defendant replied no. Rule then asked if

he could search the vehicle, and defendant agreed. Defendant exited his truck and

showed Rule around.

      During the search of defendant’s vehicle, Rule discovered marred bolts

holding the seat to the floor and concluded that they had recently been removed.

Rule also saw a door to the false compartment in the bed of the truck; however,

the door was sealed and the troopers did not have the necessary tools to open it.

At this time Rule, a trained K-9 handler, retrieved his dog, Kilo, from the patrol

car. Rule took Kilo around the vehicle and Kilo became excited, exhibiting

behavior indicating that he smelled drugs. The troopers asked defendant to

follow them to a nearby service station where they opened the compartment in

defendant’s vehicle. One hundred fourteen pounds of marijuana were discovered

and seized by the troopers, and defendant was arrested.

      Defendant moved to suppress the marijuana found by Rule and Jimerson on

the grounds that the troopers lacked probable cause to effectuate the traffic stop

and that the subsequent detention and search were unreasonable. The district

court denied the motion, finding that the troopers had probable cause to think that

defendant violated Kan. Stat. Ann. § 8-1522 and that defendant consented to the

extension of the traffic stop and the search of his vehicle.

      Because the transcript from the motion to suppress hearing had been lost,


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the district court determined that the “best available statement of the evidence

presented at the [suppression] hearing is [the] statement of facts contained in its

Memorandum and Order filed September 20, 2000, together with the exhibits

introduced at the hearing, including the videotape of the traffic stop,” pursuant to

Fed. R. App. P. 10(c). (Appellant’s App. at 138–39.)

      On appeal defendant claims that the district court erred in denying his

motion to suppress and that his due process rights were violated by the district

court’s decision to submit a statement of the evidence prepared by the court,

rather than by the appellant, as a substitute for the lost transcript of the motion to

suppress hearing. We consider defendant’s contentions in turn.

                                           I

      In reviewing the district court’s denial of defendant’s motion to suppress,

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

determination and accept the factual findings of the district court unless they are

clearly erroneous. United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997).

Ultimate determination of reasonableness under the Fourth Amendment is a

question of law that we review de novo. Id.

      A traffic stop is a “seizure” within the meaning of the Fourth Amendment

and we apply the principles of Terry v. Ohio, 392 U.S. 1 (1968), to such stops.

Traffic stops are properly analyzed as investigative detentions that must be


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supported by a reasonable, articulable suspicion that criminal activity is afoot.

See United States v. Sokolow , 490 U.S. 1, 7 (1989); United States v. Anderson ,

114 F.3d 1059, 1063 (10th Cir. 1997).    Reasonableness of the stop depends on

“whether the officer’s action was justified at its inception, and whether it was

reasonably related in scope to the circumstances which justified the interference

in the first place.” Terry, 392 U.S. at 20.

                                          A

      In order for the initial stop of defendant to be reasonable under the Fourth

Amendment, the troopers must have observed a traffic violation or had a

reasonable articulable suspicion that defendant violated one of the many

applicable traffic and equipment regulations of the jurisdiction. See United States

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

      Defendant argues that Rule “did not have probable cause to believe a traffic

law had been violated” because Rule only observed him drift one foot over the

right solid lane marker twice. (Appellant’s Br. at 8.) Defendant contends that he

was not drifting on the highway. The district court, on the other hand, concluded

that the troopers’ testimony on this point was more credible than defendant’s

testimony. During defendant’s cross-examination, he stated that “he had been

acutely aware of the troopers’ presence behind him on the highway, that the

officers’ presence made him extremely nervous, and that he frequently checked


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the patrol car in his rear-view mirrors.” (Appellant’s App. at 22 n.1.) The

district court found that this testimony lent “credence to the officers’ testimony

that the defendant crossed the lane marker.” (Id.) We accept this factual finding,

which is supported by the record, and conclude that the troopers observed a traffic

violation, rendering the subsequent stop of defendant reasonable.

      In the alternative defendant argues that two instances of drifting do not

constitute a violation of Kan. Stat. Ann. § 8-1522(a). That section states that “[a]

vehicle shall be driven as nearly as practicable entirely within a single lane and

shall not be moved from such lane until the driver has first ascertained that such

movement can be made with safety.” Emphasizing the “as nearly as practicable”

language, defendant argues that two instances of drifting do not constitute a

violation of this statute. He cites United States v. Ochoa, 4 F. Supp. 2d 1007 (D.

Kan. 1998), and United States v. Gregory, 79 F.3d 973 (10th Cir. 1996), in

support of this contention. Defendant concedes, however, that these cases both

hold that one incident of drifting out of one’s lane does not constitute a violation

of the applicable state law. In Gregory, the driver was pulled over after the

officer witnessed him cross two feet into the right shoulder emergency lane once.

We concluded that on the facts in that case “an isolated incident of a vehicle

crossing into the emergency lane of a roadway is [not] a violation of Utah law.”

79 F.3d at 978. Because the Utah law required that the driver remain in a single


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lane “as nearly as practicable,” considering that the road was winding, it was

windy, and the terrain was mountainous was relevant to the determination. We

observed, “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.” Id. In Ochoa, the court noted extenuating

circumstances existed that contributed to the lane drifting. The district court

specifically found that Troopers Rule and Jimerson, the same troopers involved in

the present case, “caused or contributed to causing” the driver’s single incident of

drifting. 4 F. Supp. 2d at 1012 n.4. Such circumstances do not exist in this case.

      In this case, the district court found that “[n]othing in the evidence suggests

that the conditions on April 11 would have made it impracticable to maintain a

single lane.” (Appellant’s App. at 26 n.3.) Because defendant only asserts that

“he might have drifted because he was looking in his mirror at the troopers” but

does not contend that anything more than the mere presence of the troopers

contributed to his lane drifting, (id.), Ochoa and Gregory are inapplicable.

      Rule’s and Jimerson’s observation of defendant drifting outside of his lane

twice within a short span of time constitutes a violation of Kan. Stat. Ann. § 8-

1522(a). Therefore the traffic stop was reasonable under the Fourth Amendment.




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                                         B

      Having concluded that the initial stop of defendant was reasonable, we next

examine the reasonableness of the subsequent detention and search of defendant’s

vehicle and person. If a suspect consents to further questioning, a law

enforcement officer may extend a traffic detention beyond its initial scope.

United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000). A “detention” only

occurs when the driver has “objective reason to believe he or she is not free to

end the conversation with the officer and proceed on his or her way.” United

States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996). A traffic stop can

become a consensual encounter “if the officer returns the license and registration

and asks questions without further constraining the driver by an overbearing show

of authority.” West, 219 F.3d at 1176.

      After returning defendant’s driver’s license and registration, Rule asked

defendant if he was carrying anything illegal in his vehicle. Defendant replied

no. This interaction was determined by the district court to be non-threatening

and friendly, a claim that defendant does not contest.

      Based on this record-supported finding, we conclude that Rule’s questions

regarding the presence of illegal items and his request to search the vehicle took

place during a consensual encounter. Thus, continuation of the traffic stop was

reasonable under the Fourth Amendment.


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      Before Rule questioned defendant about the presence of contraband,

Jimerson examined the undercarriage of the truck and concluded that there was a

hidden compartment that could have been used to store drugs. While this

discovery may have prompted Rule to question defendant, Jimerson’s visual

examination of the undercarriage of defendant’s truck did not constitute a

“search” within the meaning of the Fourth Amendment. United States v.

Gonzalez-Acosta, 989 F.2d 384, 387–88 (10th Cir. 1993). Therefore, we need not

determine whether Jimerson had reasonable suspicion for his actions. Id.

                                          C

      Defendant’s claim that his consent to search was involuntary is a question

of fact that the district court evaluates in view of the totality of the circumstances.

West, 219 F.3d at 1177; see also Ohio v. Robinette, 519 U.S. 33, 40 (1996)

(stating that “voluntariness is a question of fact to be determined from all the

circumstances”). We accept the district court’s findings unless they are clearly

erroneous. West, 219 F.3d at 1177.

      Defendant contends that the government has not met its burden of proving

that his consent to search his truck was free and voluntary, and he thus contends

that any consent given was the fruit of prior illegal seizures. We disagree on the

basis that the government has demonstrated defendant’s consent was “unequivocal

and specific and freely and intelligently given,” without duress or coercion.


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United States v. Mendez, 118 F.3d 1426, 1432 (10th Cir. 1997) (quotation

omitted). This conclusion is further supported by defendant having exited his

truck and walked Rule around the vehicle after consenting to the search.

      Defendant’s main argument depends on a determination that defendant was

illegally detained at the time he granted Rule consent to search his vehicle;

however, we have concluded that the initial traffic stop was reasonable and that

the subsequent encounter between Rule and defendant was a consensual

encounter, rather than an illegal detention. Based on these conclusions, defendant

was not illegally detained when he consented to the search of his truck.

                                         III

      Because defendant is alleging that his due process rights were infringed by

the district court’s failure to use defendant’s statement of the evidence and

proceedings under Fed. R. App. P. 10(c) we review his claim de novo. United

States v. Thody, 978 F.2d 625, 628 (10th Cir. 1992). Absent a showing of

prejudice from the lack of a complete trial transcript, this Court will not conclude

that a due process violation has occurred. Black v. O’Haver, 567 F.2d 361, 371

(10th Cir. 1977).

      Defendant prepared a statement of evidence, under Fed. R. App. P. 10(c),

in lieu of the lost transcript of the suppression hearing. This was objected to by

the government on the basis that the district court’s statement of facts was the


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proper source to rely upon. The district court agreed with the government and

determined “that the best available statement of the evidence presented” at the

suppression hearing was the statement of facts contained in its September 20,

2000, Memorandum and Order, along with the videotape of the traffic stop.

(Appellant’s App. at 138.)

      Defendant’s sole objection is the exclusion of information regarding “the

questionable history and credibility of the infamous Troopers Rule and Jimerson,”

and defendant contends that meaningful appellate review is extinguished by the

district court’s limitation of the facts considered on appeal. (Appellant’s Br. at

20.) However, there are only two differences between the district court’s

statement of the facts and defendant’s submission: In his submission, defendant

denies that he committed a traffic offense, and he claims that Rule and Jimerson

“had a course of conduct wherein Trooper Rule would simply stop a vehicle he

suspected on a hunch and say to the driver, ‘Your [sic] drifting around a little bit

— you getting sleepy?’ This was said in order to obtain a consent to search.”

(Appellant’s App. at 46.) The district court specifically addressed these claims,

finding that the troopers’ testimony regarding defendant committing a traffic

offense was more credible than that of defendant, (id. at 22 n.1.), and that

“defendant offered no competent evidence that these officers knowingly stopped

other drivers in the absence of probable cause, nor does he cite any credible


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evidence that they did so here.” (Id.)

      In reviewing a motion to suppress, this Court accepts the factual findings of

the district court unless they are clearly erroneous. Wood, 106 F.3d at 945.

Defendant’s proffered evidence regarding Rule’s and Jimerson’s pattern of

behavior was introduced to undermine the troopers’ credibility. Credibility is a

factual determination, and the record supports the district court’s finding that the

troopers were credible. Defendant’s proffered evidence does not demonstrate that

the district court’s findings were clearly erroneous. As the district court

concluded, it only shows that the troopers “follow a routine,” not that defendant

did not commit a traffic offense. (Appellant’s App. at 22 n.1.) Defendant’s

statement that he did not commit a traffic offense is similarly subject to a

credibility determination, which the district court decided to his detriment.

Defendant has not demonstrated that either of these factual determinations are

clearly erroneous, which precludes a claim of prejudice on that basis.

      Defendant also alleges that he has been prejudiced by a violation of the

Court Reporters Act. This act “requires that all proceedings in criminal cases

held in open court be recorded verbatim by shorthand or mechanical or electrical

means.” United States v. Haber, 251 F.3d 881, 889 (10th Cir. 2001) (citing 28

U.S.C. § 753(b)). Before this court will reverse a criminal conviction due to

violations of the Court Reporters Act, an appellant must demonstrate specific


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prejudice. Id. at 890. Based on the above analysis, we conclude defendant was

not prejudiced by the district court’s use of its statement of the facts.

                                          IV

      The decision of the district court denying defendant’s motion to suppress is

AFFIRMED, and the district court’s denial of defendant’s motion to approve his

statement of the facts under Fed. R. App. P. 10(c) is AFFIRMED.




                                                 ENTERED FOR THE COURT


                                                 Carlos F. Lucero
                                                 Circuit Judge




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