     Case: 11-50018     Document: 00511778706         Page: 1     Date Filed: 03/06/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           March 6, 2012

                                       No. 11-50018                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

JANET LEE ARCHULETA,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 4:10-CR-171


Before KING, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Janet Lee Archuleta (“Archuleta”) appeals the
district court’s denial of her motion to suppress evidence obtained during a
traffic stop and warrantless search of her vehicle. Specifically, Archuleta
contends that all evidence obtained as a result of the stop and the ensuing
search should be suppressed as fruit of the poisonous tree because the trooper
did not have reasonable suspicion to initiate the traffic stop. We affirm the
court’s denial of the motion to suppress and Archuleta’s subsequent conviction.

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                        No. 11-50018

                                I. Facts & Proceedings
A. Facts
       Archuleta was stopped by highway patrolman Trooper Pearson, who found
376 pounds of marijuana in the backseat of her Chevrolet Blazer. Archuleta was
later indicted on one count of possession with intent to distribute between 100
and 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2. She filed a motion to suppress the contraband seized in the traffic
stop, challenging only the initial stop.1
B. Proceedings
       The district court conducted a suppression hearing at which only Trooper
Pearson testified. He testified that he had observed Archuleta’s car and a van
traveling in close proximity to each other on Highway 166 at 5:30 a.m. near Fort
Davis, Texas, approximately 40 miles from the Mexican border. He noted that
Archuleta’s car was from out of state and was neither a newspaper delivery
truck, nor a ranch vehicle — typically the only kind of traffic on this road at that
hour. Trooper Pearson was initially traveling on that highway in the opposite
direction from Archuleta.          He turned around and followed Archuleta and
observed her weaving within her lane. He then “paced” Archuleta’s speed from
a distance of approximately 200 yards for two seconds, calculating that she was
traveling at 58 miles per hour in a 55 miles per hour speed zone.
       Trooper Pearson also testified that, based on his six years of experience,
this area of the highway was “known” for trafficking in illegal aliens and drugs;
that, except for newspaper delivery and ranch traffic, there is very little traffic
in that area at that time in the morning; and that it was still too dark for tourist
traffic. Trooper Pearson also stated that, in his experience, weaving within a
single lane indicates that the driver is either (1) intoxicated or otherwise

       1
         Archuleta noted that, “if the stop is thrown out, obviously, everything else is fruit of
the poisonous tree and would also be thrown out”.

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                                  No. 11-50018

impaired by drugs or fatigue, or (2) focusing his or her attention on a following
vehicle as potential law enforcement.
      During the hearing, Trooper Pearson added his narration to a video
recording of the stop. He said that he began pacing Archuleta when she started
going down a hill while making a leftward curve. After narrating that he had
begun to pace Archuleta, Trooper Pearson stated “[a]nd shortly I will activate my
emergency lights, and that’s when I looked at my speedometer.”
      Trooper Pearson also testified about the accuracy of the “pacing” method,
which is approved by the Texas Department of Safety (“Texas DPS”). He noted
that his car’s speedometer had been calibrated in the Ford factory and that he
“checks the calibration” of the speedometer against his radar twice daily.
Trooper Pearson further testified that he keeps a log of these comparisons in
accordance with Texas DPS requirements and that, even though the Texas DPS
academy does not provide formal training in pacing, he was trained in the
technique “on the job”. He testified that, although pacing was not “an exact
science,” it was “not possible” for his speedometer to be off by, for example, five
miles per hour either way, because of the daily comparisons to his radar.
      Counsel for Archuleta cross-examined Trooper Pearson, but offered no
additional evidence or witnesses for the district court’s consideration. Instead,
defense counsel ventured that two seconds of pacing with a speedometer
provided no reasonable basis on which Trooper Pearson could conclude that
Archuleta was driving three miles above the speed limit.
      The district court found Trooper Pearson to be a credible witness.
Although it noted the additional observations made by Trooper Pearson, the
district court specifically held that the trooper had reasonable suspicion to make
the traffic stop based on his determination that Archuleta was speeding by
pacing her vehicle. The district court noted that Trooper Pearson’s speedometer
was factory-calibrated and stated that exceeding the speeding limit is prima

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                                      No. 11-50018

facie evidence of unlawful behavior. According to the district court, because
Trooper Pearson followed the Texas DPS’s “required procedures for calibrating
the speedometer on a daily basis, and he maintains of [sic] record of each
calibration,” his method was “objectively reasonable”. Therefore, suppression
was not warranted because any mistake as to whether Archuleta was speeding
was a mistake of fact, not of law.2
       Archuleta entered a conditional guilty plea, reserving her right to appeal
the denial of the suppression motion. The district court sentenced her to 60
months in prison. Archuleta now appeals the district court’s denial of her
motion to suppress, asserting — for the first time on appeal — that Trooper
Pearson initiated the stop before any reasonable suspicion was formed.
Archuleta also contends that the district court erred in finding reasonable
suspicion because it clearly erred in crediting Trooper Pearson’s testimony
regarding the accuracy of pacing.
                                     II. Discussion
A. Standard of Review
       Although the ultimate legal determination of reasonable suspicion is
reviewed de novo, we review the district court’s factual findings — and especially
its credibility determinations — for clear error in assessing the denial of a
motion to suppress evidence.3 “A factual finding is not clearly erroneous as long
as it is plausible in light of the record as a whole.”4 “Where a district court’s
denial of a suppression motion is based on live oral testimony, the clearly
erroneous standard is particularly strong because the judge had the opportunity



       2
          Citing United States v. Montes-Hernandez, 350 F. App’x 862, 867-868 (5th Cir. Oct.
5, 2009) (unpublished).
       3
           United States v. Gomez, 623 F.3d 265, 268 (5th Cir. 2010) (citation omitted).
       4
           Id. (citation omitted).

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                                       No. 11-50018

to observe the demeanor of the witnesses.”5 Finally, we review the evidence in
the light most favorable to the prevailing party — here, the government.6
B. Timing of the Stop
       For the first time on appeal, Archuleta contends that Trooper Pearson
initiated the stop before he determined that she was speeding. In support of this
assertion, Archuleta points to Trooper Pearson’s testimony at the point that he
stated “[a]nd shortly I will activate my emergency lights, and that’s when I
looked at my speedometer.” According to Archuleta, this statement indicates
that Trooper Pearson looked at his speedometer to see if Archuleta was speeding
after he turned on his emergency lights signaling her to stop.
       A “stop” means a restraint of movement, not just a physical stopping. And,
observations made after a stop cannot supply or support the reasonable suspicion
needed to justify the stop.7 Accordingly, if it were clear that Trooper Pearson
signaled Archuleta to stop before he determined that she was speeding, then the
stop would not have been supported by a reasonable suspicion based on
speeding.8
       As Archuleta raises this argument as to the timing of the stop for the first
time on appeal, however, the district court had no opportunity to decide whether
the stop preceded a determination of reasonable suspicion. We therefore review



       5
           Id. (citing United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005)); see also
United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999) (stating that “when a trial judge’s
finding is based on his decision to credit the testimony of one of two or more witnesses, each
of whom has told a coherent and facially plausible story that is not contradicted by extrinsic
evidence, that finding, if not internally inconsistent, can virtually never be clear error”)
(citation omitted).
       6
           Gomez, 623 F.3d at 269.
       7
       United States v. Frisbie, 550 F.2d 335, 338 (5th Cir. 1977) (noting that a stop occurred
when an agent used his flashlight to signal a vehicle to stop) (citation omitted).
       8
           See id.

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                                       No. 11-50018

this issue only for plain error.9 In our plain error review, we consider whether
(1) there was error, (2) it was plain, meaning clear or obvious, (3) it affects
substantial rights, and (4) allowing that error to stand seriously affects the
fairness, integrity, or public reputation of judicial proceedings.10
      Archuleta’s contention that Trooper Pearson initiated the stop before
making a reasonable-suspicion determination fails on the first two prongs of the
test for plain error because any error was neither clear nor obvious. At worst,
Trooper Pearson’s testimony is ambiguous. His testimony could be interpreted
to mean that he activated his lights either (1) before looking at his speedometer
or (2) simultaneously while looking at his speedometer. Therefore, it is not clear
or obvious that Trooper Pearson signaled Archuleta to stop before he observed
the speed of her vehicle. The district court determined that Trooper Pearson’s
testimony was credible, and because we can find no clear or obvious error with
respect to that determination, we conclude that district court did not commit
plain error in denying suppression.
C. Reasonable Suspicion
      Archuleta also challenges the district court’s conclusion that Trooper
Pearson had reasonable suspicion to make the traffic stop, claiming that the
court committed clear error by crediting the trooper’s testimony regarding the
accuracy of the “pacing” method. Archuleta essentially asserts that “pacing” is
an “implausible” technique for gauging a vehicle’s speed. She advances a
number of claims in support of this contention: (1) The technique is not taught
by the Texas DPS, (2) the government never produced the actual Texas DPS
policy that permits the use of pacing in court, and (3) a stop based on pacing a




      9
           United States v. Newman, 472 F.3d 233, 236-37 (5th Cir. 2006).
      10
           Id.; United States v. Olano, 507 U.S. 725, 734 (1993).

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vehicle at 58 miles per hour in a 55 mile per hour zone — just three miles per
hour over the speed limit — has never been approved by the Fifth Circuit.11
       In light of the deference given to a district court’s factual determinations
based on live testimony, we conclude that the district court did not commit clear
error in crediting Trooper Pearson’s testimony regarding pacing. As noted,
Trooper Pearson was the only witness to testify during the suppression hearing.
There does not appear to be — and Archuleta does not offer — any extrinsic
evidence to contradict Trooper Pearson’s testimony. Trooper Pearson testified
expressly that pacing was an officially approved technique, and, without any
evidence to contradict this statement, Archuleta’s assertion that (1) the
technique is not taught by the Texas DPS, and (2) the government did not
physically produce the actual policy on pacing, is irrelevant. Although the
district court’s statement that the Trooper Pearson “calibrated” his speedometer
daily is incorrect, it is harmless in light of his testimony that he “checks” the
calibration daily and logs his observations in accordance with official
requirements. We note that the district court had the opportunity to observe the
demeanor of the trooper, and, without more, Archuleta has not established clear
error as to this issue. And, contrary to Archuleta’s assertion, we have previously
approved pacing as an acceptable method for establishing reasonable suspicion.
       In United States v. Castro, we approved a traffic stop in which the officer
determined that the defendants were speeding based on pacing.12 Although the
officer in that case paced the defendants for “several miles”, we focused our
discussion on the district court’s credibility determination with respect to the



       11
          Archuleta cites to the following cases in support of this last contention: Castro, 166
F.3d at 733; Veney v. Ojeda, 321 F. Supp. 2d 733 (E.D. Va. 2004).
       12
         166 F.3d at 733-34. The officer in Castro also observed that the defendants were not
wearing seatbelts, but the panel held that the officer had reasonable suspicion based on either
the speeding or the seat belt violations.

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                                         No. 11-50018

testimony of the officer and the defendants. The Castro panel noted that the
district court had heard the defendants’ testimony that the officer’s speedometer
was not accurate and that their own car’s speedometer did not register that they
were speeding. The panel further observed that the district court had “expressly
found that the [defendants’ car] was in fact speeding” by crediting the officer’s
testimony over that of the defendants.13 The panel then concluded that “[o]n the
record of this case, we are not prepared to say that the district court’s credibility
determinations and ensuing factual findings were clearly erroneous.”14
       As in Castro, the district court in this case heard the testimony of the
trooper — but, unlike the court in Castro, heard no contradictory testimony from
the defendant — and made the factual determination that his testimony was
credible.         Without any other evidence or witnesses contradicting Trooper
Pearson’s testimony, this issue rests solely on his credibility. Consistent with
the Castro panel’s emphasis that “credibility determinations are for the district
court,”15 we conclude that here the district court did not commit clear error.16
       Furthermore, even if Trooper Pearson was mistaken that Archuleta was
in fact speeding, we agree with the district court that his method of pacing was
objectively reasonable in light of the district court’s credibility determination

       13
            Id.
       14
            Id.
       15
            Id.
       16
          We note that Archuleta relies on the fact that the defendants in Castro were not
wearing seatbelts to distinguish Castro from the instant case. Such a distinction is not
dispositive because the panel in Castro treated this finding separately from the officer’s pacing
of the vehicle. Furthermore, the distinction that Archuleta draws between the instant case
and Veney v. Ojeda, 321 F. Supp. 2d 733 (E.D. Vir. 2004) also has no bearing on this case.
Although the officer in that case paced the plaintiff’s vehicle for “one-third of a mile”, the court
also noted that neither the plaintiff nor the driver of the vehicle testified that he or she was
driving at or below the speeding limit. Like the plaintiff in Veney, Archuleta does not contend
that she was not speeding; she simply asserts that Trooper Pearson’s testimony with respect
to the pacing method is implausible.

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                                        No. 11-50018

regarding the trooper’s testimony.17 Because Trooper Pearson had an objectively
reasonable basis for initiating the stop, any factual mistake as to whether
Archuleta was speeding does not diminish the trooper’s legal basis to make the
stop.18
                                     III. Conclusion
       The district court’s denial of Archuleta’s motion to suppress and
Archuleta’s subsequent conviction is AFFIRMED.




       17
            Montes-Hernandez, 350 F. App’x at 867-68.
       18
          See id. (noting that the issue of whether one-half of the state name on a license plate
was actually obscured was “a very close call” and, under such circumstances, the officer had
an “objectively reasonable suspicion” that a traffic violation had occurred).

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