                                                                    FILED
                                                         United States Court of Appeals
                                   PUBLISH                       Tenth Circuit

                                                                July 25, 2012
                   UNITED STATES COURT OF APPEALS
                                                             Elisabeth A. Shumaker
                              TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

       Plaintiff-Appellant,
 v.                                                   No. 11-2109
 FRANCISCO BURCIAGA,

       Defendant-Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                  (D.C. No. 1:08-CR-01541-MV-1)

Joshua S. Johnson, Appellate Section, Criminal Division, United States Department
of Justice, Washington, D.C. (Lanny A. Breur, Assistant Attorney General, Gregory
D. Andres, Acting Deputy Assistant Attorney General, and Richard A. Friedman,
Appellate Section, Criminal Division, United States Department of Justice,
Washington, D.C., and Kenneth J. Gonzales, United States Attorney, and C. Paige
Messec and Jon K. Stanford, Assistant United States Attorneys, Albuquerque, New
Mexico, with him on the brief) for Plaintiff-Appellant.

Teresa M. Duncan, Freedman Boyd Hollander Goldberg Ives & Duncan,
Albuquerque, New Mexico, for Defendant-Appellee.


Before BRISCOE, Chief Judge, and BALDOCK and TYMKOVICH, Circuit
Judges.


BALDOCK, Circuit Judge.
      Where “other traffic may be affected,” § 66-7-325 of the New Mexico Statutes

requires a motorist changing traffic lanes to signal “continuously during not less than

the last one hundred feet traveled by the vehicle” before the change. N.M. Stat. Ann.

§ 66-7-325(A) & (B). The New Mexico Supreme Court has construed § 66-7-325 to

require “a signal even when there is only a reasonable possibility that other traffic

may be affected by the signaling driver’s movement.” State v. Hubble, 206 P.3d

579, 584 (N.M. 2009). The broader question in this case is whether a New Mexico

highway patrol officer lawfully stopped Defendant Francisco Burciaga’s vehicle

based on a suspected violation of § 66-7-325, where Defendant, without timely

engaging his directional signal, changed from the left to the right lane on the

interstate after passing the officer’s patrol car. The district court held the stop

violated Defendant’s Fourth Amendment right to be free from unreasonable seizures

because the officer’s testimony failed to establish that traffic “could have been

affected” by Defendant’s lane change absent facts not in evidence. United States

v. Burciaga, No. 08-CR-1541-MV, Order at 18 (D.N.M., filed May 2, 2011)

(unpublished) (hereinafter Burciaga). Consequently, the court granted Defendant’s

motion to suppress over 17 kilograms of heroin recovered as a result of the stop.

The Government appeals pursuant to 18 U.S.C. § 3731. Our review of a motion to

suppress based on a claimed Fourth Amendment violation is two-tiered: Considering

the evidence in a light most favorable to the prevailing party, we first review the

district court’s factual findings only for clear error; we then review the court’s

                                          2
determination of reasonableness de novo. See United States v. McGehee, 672

F.3d 860, 866 (10th Cir. 2012). Mindful of these standards, we hold § 66-7-325 as

applied to the facts provided the officer with an objectively justifiable basis for

stopping Defendant’s vehicle. Accordingly, we reverse.

                                          I.

      The Government bore the burden before the district court of establishing by

a preponderance of the evidence that reasonable suspicion supported the officer’s

stop of Defendant’s vehicle. See United States v. Kitchell, 653 F.3d 1206, 1216

(10th Cir. 2011). Consistent with the district court’s factual recitation, the record

reflects that on June 24, 2008 around 6:00 a.m., New Mexico highway patrol officer

John Valdez was patrolling the two northbound lanes of I-25 near Raton, New

Mexico. Relevant to our inquiry, Officer Valdez was traveling north in a 75-mph

zone when he engaged his emergency lights and pulled onto the right shoulder to

check on a maintenance truck moving so slowly that initially it appeared to be

stopped. Once Officer Valdez saw the truck was moving, he disengaged his lights

and merged back into the right lane of the interstate. At that point, Defendant,

traveling in the left lane at a speed of around 75-mph, passed Officer Valdez, as well

as the maintenance truck. A semi truck traveled some distance behind. Once “a

little ways in front” of Officer Valdez, Defendant signaled his intention to merge

back into the right lane simultaneous with the move. Appellant’s App’x at 111.

Officer Valdez stopped Defendant and ticketed him for failing to timely signal in

                                          3
violation of N.M. Stat. Ann. § 66-7-325:

      A. No person shall . . . turn a vehicle from a direct course or move
      right or left upon a roadway unless and until such movement can be
      made with reasonable safety. No person shall so turn any vehicle
      without giving an appropriate signal in the manner hereinafter provided
      in the event any other traffic may be affected by such movement.

      B. A signal of intention to turn right or left when required shall be
      given continuously during not less than the last one hundred feet
      traveled by the vehicle before turning.

N.M. Stat. Ann. § 66-7-325(A) & (B). 1 Defendant subsequently consented to the

search of his vehicle that uncovered the heroin. A federal grand jury indicted

Defendant on one count of possession with intent to distribute over 1000 grams of

heroin in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A).

      At the suppression hearing, the Government asked Officer Valdez whether the

traffic in the vicinity of Defendant’s lane change “could have been affected by his

improper signal.” Appellant’s App’x at 101. Valdez answered yes as part of the

following exchange:

      A.     [S]ignaling properly alerts other drivers of your intentions to
             change lanes. Other drivers make . . . their decisions based on
             what your signal is going to be. . . . [I]f you don’t give your 100
             feet of signal, the other drivers have no idea that you’re actually
             intending on changing lanes.
      Q.     What’s the speed limit on that section of highway?


      1
         Defendant concedes in footnote 12 of his appellate brief that the entirety of
§ 66-7-325 applies to traffic lane changes as well as direct turns. See Burciaga at
8-9 (“[T]o give effect to the intent of the New Mexico legislature, only one reading
of the statute is plausible. The general policy concerns behind requiring turn signals
support a conclusion that ‘shall so turn’ includes lane changes.”).

                                           4
       A.     It’s 75.
       Q.     [I]s . . . the safety of that failure to signal affected by the speed?
       A.     Yes. At that speed, in one second, you’ll approximately travel
              about 110 feet.
       Q.     [W]as [Defendant’s] lane change made with reasonable safety?
       A.     In my opinion, no, because he did not give the 100 feet of signal
              before changing lanes.
       Q.     Was speed also a factor in that?
       A.     The speed is also a factor, and the fact that there was other traffic
              in the area that would have been affected.

Id. at 101–02. Defense counsel asked Officer Valdez whether a “perceptible effect

on the traffic” resulted from Defendant’s failure to signal when he changed lanes.

Id. at 106. Valdez did not believe so, but said he could not testify as to the affect on

the other drivers. He added that “it was an unsafe behavior, to change lanes without

signaling properly, and giving the [traffic] behind . . . or the traffic around . . . ample

time to know of [Defendant’s] intentions to change lanes.” Id. at 106–07. Valdez

further testified his own “ability to drive safely” was not affected by Defendant’s

lane change but “could have been if I was either going a little faster or if he was, in

fact, a little closer . . . without giving enough of an alert.” Id. at 119, 136.

       Based on Officer Valdez’s testimony, the district court ruled the Government

failed to prove the officer “had an objectively reasonable suspicion that any of the

traffic in the vicinity ‘may have been affected’ by . . . Defendant’s lane change[].”

Burciaga at 12. That is to say Valdez, according to the court, lacked “an objectively

reasonable suspicion that Defendant violated the turn signal statute when he moved

into the right lane in front of the officer’s vehicle.” Id. at 17.


                                            5
      Whereas the officer initially stated . . . that his own vehicle could have
      been affected by Defendant’s lane change, he subsequently explained
      that his vehicle could have been so affected only if he had been in a
      different position on the road. . . .

      The New Mexico Supreme Court’s language—requiring “a reasonable
      possibility that [other traffic] may have been affected,” Hubble, 206
      P.3d at 585—cannot be construed to mean that a violation occurs when,
      if the vehicles on the road at the time of the lane change were indeed in
      different positions on the roadway, they could have been affected.

Id. at 17–18 (brackets in original).

                                         II.

      We have no difficulty in this case with the district court’s recitation of the

facts as reflected in the record. The only issue before us is whether Officer Valdez’s

stop of Defendant’s vehicle was reasonable within the meaning of the Fourth

Amendment. Because an objectively justifiable basis for a traffic stop necessarily

renders that stop reasonable, the dispositive inquiry is whether N.M. Stat. Ann.

§ 66-7-325 provided Officer Valdez with such basis. 2 See United States v. DeGasso,

369 F.3d 1139, 1144–45 (10th Cir. 2004). To answer that question, we need look

no further than the New Mexico Supreme Court’s construction of the statute in

Hubble, 206 P.3d 579. No federal or inferior state court “has any authority to place



      2
         An objectively justifiable basis for a traffic stop exists where an officer
observes a traffic violation or has a reasonable suspicion that such a violation has
occurred or is occurring. “For reasonable suspicion to exist, an officer need not rule
out the possibility of innocent conduct; he or she simply must possess some minimal
level of objective justification for making the stop.” United States v. Winder, 557
F.3d 1129, 1134 (10th Cir. 2009) (internal quotations omitted).

                                          6
a construction on a state statute different from the one rendered by the highest court

of the State.” Johnson v. Fankell, 520 U.S. 911, 916 (1997). Accordingly, we rely

on Hubble to construe § 66-7-325, before applying that construction to the facts

presented.

                                         A.

      In Hubble, the New Mexico Supreme Court addressed the question of whether

a county deputy had reasonable suspicion to stop defendant’s vehicle based on a

violation of § 66-7-325. The state supreme court set forth the following facts:

      Deputy Phillip Francisco was driving southbound on County Road 6100
      when he observed [d]efendant’s vehicle come to a stop at a “T”
      intersection between County Road 6100 and an unnamed access road.
      Aside from the vehicles belonging to Deputy Francisco and [d]efendant,
      there were no other vehicles on either the county road or the access
      road. As Deputy Francisco passed through the intersection, he observed
      that [d]efendant did not have his turn signal engaged. Deputy Francisco
      continued to observe the vehicle through his rearview mirror as he
      proceeded southbound and never saw the turn signal engaged. Deputy
      Francisco then observed [d]efendant turn onto County Road 6100
      without using his turn signal. . . . Deputy Francisco then proceeded to
      make the traffic stop on the basis that [d]efendant turned without using
      his signal.

Hubble, 206 P.3d at 582. Based on these facts, the trial court denied the defendant’s

motion to suppress. The New Mexico Court of Appeals affirmed. In an unpublished

opinion, the appellate court apparently decided defendant did not violate § 66-7-325

by failing to signal his intention to turn. Nonetheless the state appellate court

held the deputy’s stop of defendant’s vehicle was not unreasonable under the

circumstances because “no officer in the field can be expected to parse the

                                          7
Legislature’s language.” Defendant’s Petition for Writ of Certiorari, 2007 WL

6680370, at *7 (N.M., filed Sept. 24, 2007) (describing the intermediate appellate

court’s decision). The New Mexico Supreme Court disagreed, concluding defendant

had indeed violated § 66-7-325 by failing to signal.

      Unlike the state appellate court, the supreme court construed § 66-7-325(A)’s

phrase “in the event any other traffic may be affected by such movement” to mean

a driver must engage a turn signal “when there is a reasonable possibility that other

traffic may be affected.” Hubble, 206 P.3d at 584.

      The [c]ourt of [a]ppeals . . . unreasonably narrowed the reach of § 66-7-
      325(A) when it deviated from the language of the statute in its analysis.
      The first such deviation was when the [c]ourt articulated the issue that
      it would discuss: “we must decide whether Deputy Francisco could have
      been affected by [d]efendant’s turn within the meaning of § 66-7-
      327(A).” Later, the [c]ourt reasoned “we do not understand how
      Deputy Francisco’s operation of his vehicle was affected in any normal
      sense of this word by a right turn that occurred after he was well clear
      of the intersection.” Finally the [c]ourt stated, “the State has not
      directed our attention to any evidence that Deputy Francisco believed
      that [d]efendant’s right turn itself presented a potential hazard to him.”

Id. at 585 (internal brackets and ellipses omitted). The supreme court explained the

appellate court “required a greater show of effect [on other traffic] than the statute

contemplates” Id. The State “was not required to prove that Deputy Francisco could

have been affected, that he was affected, or that [d]efendant’s turn presented a

potential hazard; the statute only requires that the surrounding facts establish that

there was a reasonable possibility that he may have been affected.” Id.




                                          8
      The New Mexico Supreme Court described its interpretation of § 66-7-325 as

consistent with the “policy and concerns . . . expressed in the New Mexico Driver

Manual.” Id. at 584.

      [T]he manual states: “Generally other drivers expect you to keep doing
      what you are doing. You must warn them when you are going to change
      direction or slow down. This will give them time to react if needed, or
      at least not be surprised by what you do.” The manual further instructs
      drivers to signal when they change direction, turn right or left, merge
      into traffic, or park so that other drivers will have time to react to such
      movements.

Id. (quoting New Mexico Driver Manual 19 (2004)) (emphasis added). According

to the state supreme court, the appellate court’s reasoning “undermine[d] the policy

behind driving safety by depriving non-signaling drivers of visual cues and ample

decision-making time in their interactions with drivers who intend to change

directions.” Id. at 585.

                                          B.

      In addressing Defendant’s motion to suppress, the district court framed the

issue as “whether . . . the facts established at the evidentiary hearing would give rise

to an officer’s objectively reasonable suspicion that Defendant’s failure to signal

could have affected other traffic.” Burciaga at 14 (emphasis added). The New

Mexico Court of Appeals framed the issue in a similar fashion in Hubble when it

asked whether the deputy “‘could have been affected by [d]efendant’s turn within

the meaning of § 66-7-325(A).’” Hubble, 206 P.3d at 585. The New Mexico

Supreme Court subsequently told us (and the appellate court) that the prosecution

                                           9
“was not required to prove” traffic “could have been affected” in order to establish

a violation of § 66-7-325 for failure to properly signal. Id. The court reasoned such

inquiry “unreasonably narrowed the reach of § 66-7-325(A) and was not the

equivalent of a “reasonable possibility that [traffic] may have been affected.” Id.

To be sure, Hubble is an exercise in semantics. It plainly tells us, however, that by

requiring the Government to prove traffic in the vicinity of Defendant’s lane change,

i.e., the semi, the maintenance truck, and/or the officer’s own patrol vehicle, “could

have been affected,” the district court “required a greater show of effect than [§ 66-

7-325] contemplates.” 3 Id.

      So what measure of proof is necessary to create an objectively justifiable

belief that a driver has violated a statute requiring the timely use of a turn signal

where a “reasonable possibility” exists that other traffic “‘may be affected’”? Id.

at 584 (quoting N.M. Stat. Ann. § 66-7-325(A)) (emphasis omitted). We do not go

so far as to construe Hubble as requiring a driver in all instances to signal before a

lane change. Hubble suggests, in no uncertain terms however, that such measure is

not extensive. The New Mexico Supreme Court explained: “[I]t is significant that

the Legislature chose the phrase “may be affected” as opposed to “is affected,” “will

be affected,” or “most likely will be affected.” Id. “We understand this to mean that



      3
         In Hubble, the court conclusively established that the patrol vehicle involved
in a § 66-7-325 stop is “traffic” within the meaning of the statute. Hubble, 206 P.3d
at 583.

                                          10
the Legislature’s intent was to provide § 66-7325(A) with a broad reach.” Id.

Illustrative of the statute’s reach, the supreme court held defendant violated the turn

signal statute despite the fact the deputy was not affected in any apparent fashion by

defendant’s right turn from a “T” intersection onto a county road, occurring “‘after

[the deputy] was well clear of the intersection.’” Id. at 585. The court based its

holding upon the rationale that a driver intending to change course may affect not

only other drivers’ actions, but their “decision-making processes in the time leading

up to the movement.” Id. at 584 (emphasis added). This undoubtedly is because a

driver intending to change lanes has no idea what is in the minds of nearby motorists.

Only by properly signaling does a driver provide traffic “‘time to react if needed.’”

Id. “A driver, once given a visual cue that indicates another driver’s intention, may

decide to switch lanes, slow down, or prepare for a change in direction.” Id.

      Acknowledging but slighting Hubble’s broad construction of N.M. Stat. Ann.

§ 66-7-325, the district court failed to account for the reasonable possibility that

Defendant’s failure to timely signal may have affected not only other driver’s actions

but their decision-making processes in the seconds preceding the lane change.

Instead, the court focused its frustration on Officer Valdez’s subjective opinions and

beliefs about a rapidly developing scene, at one point even referring to his testimony

as “difficult to make sense of.” Burciaga at 12. In so focusing, the court parsed the

facts too finely in its effort to ascertain whether Defendant’s failure to timely signal

his intention to change lanes actually affected other drivers.         First, the court

                                          11
concluded: “It is clear from Officer Valdez testimony that in his opinion, the water

truck could not have been affected by Defendant’s lane change.” Burciaga at 16.

Next, the court observed Officer Valdez could not testify as to the effect of

Defendant’s lane change on the semi because the officer “was unsure where the semi

truck was in relation to Defendant’s car during the . . . change.” Id. at 17. Lastly,

the court emphasized Officer Valdez stated he “could have been affected” only “if

the vehicles on the road at the time of the lane change were . . . in different

positions.” Id. at 18.

      But in this case, the Government did not even have to go so far as to establish

that Defendant’s lane change “most likely” would affect surrounding traffic. Hubble,

206 P.2d at 584. Rather the Government only had to prove a “reasonable possibility”

existed that Defendant’s lane change might do so. Id. The district court, as a result

of its failure to heed the New Mexico Supreme Court’s broad construction of § 66-7-

325, “unreasonably narrowed the reach” of the statute, making it all but impossible

for the Government to fit the evidence within its parameters. Id. at 585. For reasons

Hubble explained, drivers on New Mexico roadways intending to change course must

provide nearby motorists with “visual cues and ample decision-making time in their

interactions” with traffic. Id. This is why the New Mexico Supreme Court decided

that § 66-7-325 requires a driver sitting stationary at a “T” intersection providing

county road access to signal an intention to turn when in the presence of one other

vehicle traveling in a direct course along the county road. Obviously, the state court

                                         12
was unmoved by the fact that when sitting at a “T” intersection, a driver must turn

to proceed forward—a fact motorists passing by that intersection surely understand.

By this measure, we are loathe to conclude the same statute does not at least provide

a patrol officer with reasonable suspicion to stop the driver of a vehicle passing

traffic at 75-mph on the interstate when that driver “a little ways in front” fails to

timely signal an intention to change lanes. See United States v. Tibbetts, 396 F.3d

1132, 1137 (10th Cir. 2005) (explaining the lawfulness of a traffic stop depends on

whether the officer “had reasonable suspicion of a violation, not whether there was

actually a violation”). Accordingly, the district court’s order granting Defendant’s

motion to suppress is reversed and this cause remanded for further proceedings not

inconsistent with this opinion.

      REVERSED and REMANDED.




                                         13
11-2109, United States v. Burciaga

BRISCOE, Chief Judge, dissenting


      I respectfully dissent. It was the government’s burden to prove that Officer

Valdez had reasonable suspicion that Francisco Burciaga had violated New Mexico’s

turn signal law. Because the government fails to point to “specific and articulable

facts,” Terry v. Ohio, 392 U.S. 1, 21 (1968), demonstrating a “‘particularized and

objective basis’” for believing that a violation occurred, Tibbetts, 396 F.3d at 1138

(quoting United States v. Cortez, 449 U.S. 411, 417 (1981), I would affirm.

      Notwithstanding the expansive interpretation it has received from the New

Mexico Supreme Court, the law at issue in this case does not require a driver to

signal before a lane change in all instances.       Hubble, 206 P.3d at 583.       The

government acknowledges as much. See Aplt. Reply Br. at 12 (“The government

does not contend that signaling is required in all cases in which other traffic is

present when a lane change occurs.”). Rather, whether a signal is required in a given

situation depends on the facts. An officer’s task is to “determine whether certain

facts—the relative positions of the vehicles and their direction of travel—constitute[]

a scenario where [traffic] may [be] affected by [a driver’s unsignaled] movement.”

Hubble, 206 P.3d at 587 (emphasis in original). Our task is to determine whether

Officer Valdez articulated specific facts showing that he had reasonable suspicion

that a violation had occurred.

      The most relevant fact must surely be the distance between Burciaga and any
other traffic in the moments leading up to Burciaga’s lane change. 4 But with regard

to this critical issue, Officer Valdez said little more than that Burciaga “got a little

ways in front” before changing lanes. Aplt. App. at 111–12. Officer Valdez never

provided a concrete estimate of his actual distance from Burciaga. Nor did he

estimate his own speed. 5 Instead of articulating specific facts that would allow this

court to review the reasonableness of his decision to stop Burciaga, Officer Valdez

offered only vague and conclusory testimony as to his “subjective opinions and

beliefs.” Maj. Op. at 11. Although the government’s burden of proof in this case

could hardly have been lower, it was not met. Accordingly, I would affirm the

district court’s order granting Burciaga’s motion to suppress.


      4
         The government concedes that “if another car was on a highway but was a
great distance behind or in front of a driver changing lanes, no signal would be
needed.” Aplt. Reply Br. at 12. Cf., e.g., United States v. Burkley, 513 F.3d 1183,
1187 (10th Cir. 2008) (“Clearly, a vehicle traveling approximately one-and-a-half
car lengths behind another vehicle ‘may be affected’ by that vehicle’s failure to
signal its intention to make a right turn.”) (applying Oklahoma law); Clower v. W.
Va. Dep’t of Motor Vehicles, 678 S.E.2d 41, 49 (W. Va. 2009) (concluding that
where officer was at least one block away from a driver, the officer “could not
possibly have been affected by [the driver’s] right turn”); Grindeland v. State, 32
P.3d 767, 769–70 (Mont. 2001) (rejecting the government’s argument that the
presence of other vehicles in the vicinity was sufficient for reasonable suspicion,
where officer “could not recall the location of those vehicles in relation to the
intersection and [the defendant’s] vehicle” and therefore had “insufficient objective
data” to justify a stop).
      5
        Officer Valdez did testify that Burciaga was traveling at the speed limit of
seventy-five miles per hour, while his own speed was lower when he pulled back
onto the highway after checking on a maintenance truck on the shoulder. Aplt. App.
at 133. Traveling at a lower speed, he would have been less likely to be affected by
the lane change ahead of him.

                                           2
