           Case: 13-10047    Date Filed: 09/27/2013   Page: 1 of 6


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10047
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:12-cr-00028-KOB-JEO-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

HERMILO BENITEZ,

                                                          Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                            (September 27, 2013)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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       After entering an Alford plea, Hermilo Benitez appeals his conviction for

possession with intent to distribute heroin and cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), and (b)(1)(B). On appeal, Benitez argues that the district

court erred by failing to suppress the drugs found in Benitez’s vehicle following an

illegal traffic stop. After review, we affirm.

                            I. FACTUAL BACKGROUND

       Before entering his plea, Benitez and the government signed a plea

agreement preserving Benitez’s right to appeal the district court’s suppression

ruling. At the plea hearing, however, Benitez maintained that he was unaware of

the drugs found in his car. Consequently, the parties withdrew the plea agreement,

and the district court allowed Benitez to instead enter a blind Alford plea. At that

time, Benitez’s counsel reiterated that the suppression ruling was preserved for

appeal. 1

                              II. MOTION TO SUPPRESS

       We review the district court’s findings of fact on a motion to suppress only

for clear error, but review its application of the law to those facts de novo. United

       1
         We recognize that there is some question as to whether Benitez’s Alford plea waived his
right to appeal the suppression ruling. See United States v. Pierre, 120 F.3d 1153, 1155 (11th
Cir. 1997) (explaining that a defendant’s knowing and voluntary unconditional guilty plea
“waives all non-jurisdictional defects in that defendant’s court proceedings”); Fed. R. Crim. P.
11(a)(2) (requiring a conditional plea to be with the consent of the court and the government and
the reservation of the appellate issue to be in writing). However, the government has not raised
the issue of waiver. We therefore do not address it. See United States v. Lall, 607 F.3d 1277,
1290 (11th Cir. 2010) (declining to address waiver of an appellate issue where the government
failed to argue it).
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States v. Ramirez-Chilel, 289 F.3d 744, 748-49 (11th Cir. Cir. 2002). We defer to

the district court’s credibility determination made during a suppression hearing

unless that determination is “contrary to the laws of nature, or so inconsistent or

improbable on its face that no reasonable factfinder could accept it.” Id. at 749

(quotation marks omitted).

      A traffic stop constitutes a seizure under the Fourth Amendment. Delaware

v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396 (1979). A traffic stop is

constitutional if it is based upon probable cause to believe that a traffic law has

been violated or upon reasonable suspicion of criminal activity. United States v.

Harris, 526 F.3d 1334, 1337 (11th Cir. 2008). The standard for both probable

cause and reasonable suspicion is an objective one, and an officer’s subjective

motivation “does not invalidate what is otherwise objectively justifiable behavior

under the Fourth Amendment.” Id. (quotation marks omitted).

      Here, the district court did not err in denying Benitez’s motion to suppress.

As the district court correctly concluded, Officer Ernest Ryan had both probable

cause to believe Benitez had committed a traffic violation and reasonable suspicion

that criminal activity was afoot.

      Officer Ryan testified that the car Benitez was driving committed a traffic

violation when it traveled on or crossed over the fog line at least twice, then drifted




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toward the center lane as another car passed. Officer Ryan’s patrol car video

supported Officer Ryan’s version of events.

      As to the traffic violation, Officer Ryan had probable cause to believe

Benitez had violated Alabama Code § 32-5A-88(1), which requires that a vehicle

on a roadway with two or more lanes “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.” Ala. Code

§ 32-5A-88(1).

      Further, Officer Ryan testified that he suspected that Benitez was driving

impaired, which is a crime under Alabama Code § 32-5A-191(a). Officer Ryan

testified that he was trained to judge impaired driving by looking for such behavior

as driving at a low rate of speed or having delayed reactions in correcting course.

Officer Ryan stated that he saw Benitez driving his car “a lot slower than normal

traffic” and then slowly moving over the fog line at least twice and then drifting

toward the center lane. Again, the patrol car video corroborated Officer Ryan’s

testimony.

      Because Officer Ryan’s testimony was not improbable or inconsistent on its

face, there is no reversible error in the district court’s factual findings. Based on

Officer Ryan’s credited testimony of Benitez’s driving, a reasonable officer in

Officer Ryan’s shoes had probable cause to believe Benitez had violated a traffic


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law by failing to maintain his lane and also had a reasonable suspicion that Benitez

was committing a crime by driving while impaired.

      Benitez argues that Officer Ryan’s reasons for the traffic stop were

pretextual because he admitted following Benitez’s car before observing the traffic

violation. The court’s inquiry is an objective one, however, and Officer Ryan’s

subjective motives are not relevant. Once Benitez’s vehicle began veering outside

its lane and Benitez’s driving appeared to be impaired, Officer Ryan had

objectively reasonable bases to execute the stop.

      This case differs materially from the purely pretextual stop in United States

v. Smith, 799 F.2d 704 (11th Cir. 1986), cited by Benitez. In Smith, there was

“overwhelming objective evidence” that the trooper who executed the traffic stop

had no interest in investigating possible drunk driving. 799 F.2d at 710-11. There

was also an express finding in Smith that no traffic violation had occurred. Id. at

709. In contrast, Officer Ryan’s testimony describes, and the patrol car video

shows, that Benitez’s vehicle slowly drifted across the lane from the fog line

toward the center line. The video also shows that, after pulling over Benitez’s

vehicle, Officer Ryan told the passengers that their car was drifting in the lane and

asked whether they had been drinking. And, at the conclusion of the stop, Officer

Ryan issued Benitez a warning ticket for improper lane usage.




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      For all these reasons, we conclude that the district court properly denied

Benitez’s motion to suppress, and we affirm Benitez’s conviction.

      AFFIRMED.




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