                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                             February 2, 2018
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 16-6220
                                                     (D.C. No. 5:15-CR-00053-M-1)
DARYL LEE INGRAM, a/k/a Black, a/k/a                         (W.D. Okla.)
Clacc, a/k/a Ninety Black, a/k/a BJ,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

       Daryl Lee Ingram filed two appeals challenging separate but related drug

convictions. Here, Ingram contests his conviction for possession with intent to

distribute cocaine base, or crack cocaine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A)(iii). Specifically, he disputes the legality of the traffic stop that led to his

arrest. We conclude that the traffic stop was lawful. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.




       * This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   BACKGROUND

   I.      The traffic stop

        During a multi-agency federal and state investigation into the Rollin’ 90’s

gang in Oklahoma City, Oklahoma, a confidential informant told Detective Jeff Reed

of the Oklahoma City Police Department that a man named Anthony Anderson was

selling crack cocaine from a white Honda Civic. Before receiving the tip, Detective

Reed knew that Anderson was a Rollin’ 90’s gang member. Detective Reed also

knew that Anderson had felony drug convictions. Acting on the informant’s tip,

Detective Reed checked the Honda’s registration and learned that the car was

registered to Lameisha Blackshire at 3344 Southwest 24th Street in Oklahoma City.

        On February 17, 2015, Detective Reed surveilled 3344 Southwest 24th Street.

As he drove down the street in an unmarked police car, Detective Reed “passed

within a few feet” of Michael Shandelon Brown and Ingram, who were in a grey Kia

Forte traveling the other direction. Suppl. R. Vol. III at 296:1–13. Detective Reed

took a quick glance at the Kia’s occupants, one of whom he believed was Tyree

Cade. Detective Reed knew that Cade had an active felony warrant and was wanted

in a drug conspiracy investigation. Suppl. R. Vol. III at 289:10–290:3. Detective

Reed hadn’t previously encountered Brown or Ingram. Rather, Detective Reed

thought Brown was Cade because Brown’s “features were similar” to Cade’s and

Detective Reed knew that the residence at 3344 Southwest 24th Street was associated

with the Rollin’ 90’s. Id. at 285:22–24, 286:2–5, 289:17–290:3.



                                            2
      Detective Reed continued driving and parked in a vacant house’s driveway

down the street. Meanwhile, Brown and Ingram parked in front of 3344 Southwest

24th Street. Detective Reed positioned himself so he could see the Kia and reached

for a pair of binoculars to see whether he was correct about Cade, but by the time he

got situated, Brown and Ingram were already on the front porch of 3344 Southwest

24th Street, headed inside.

      Next, Detective Reed called the Oklahoma City Police Department’s Gang

Enforcement Unit, specifically, Lieutenant Robert Coniglione, to tell him that he

believed Cade was at 3344 Southwest 24th Street. Detective Reed asked Lieutenant

Coniglione whether he “and his troops could come over” to the house “to set up on”

the Kia, so they “could stop it to see if Tyree Cade was in the car.” Suppl. R. Vol. III

290:19–21. After requesting assistance, Detective Reed surveilled the house for

another fifteen minutes, during which time he saw Anderson (the alleged white

Honda Civic crack-cocaine dealer) come out of the house and lean into the Honda

parked in the driveway. He didn’t see whether Anderson put something into the car

or took anything out of it. A few minutes later, Detective Reed saw Brown and

Ingram leave the house, get back into the Kia, and drive away. Detective Reed

noticed that the person he believed might be Cade, but who was actually Brown, was

driving the car, and that Ingram, whom Detective Reed hadn’t encountered before

this incident, was the passenger. He also noticed that when Ingram got back into the

Kia, he was carrying a black bag.



                                           3
       Lieutenant Coniglione and his riding partner, Sergeant Andrew Ritchie,

responded to Detective Reed’s assistance request. When they arrived in the area,

Detective Reed told Lieutenant Coniglione which direction the Kia had traveled.

Lieutenant Coniglione and Sergeant Ritchie quickly found the Kia in the

neighborhood of 3344 Southwest 24th Street and followed it by two or three car

lengths. While following the Kia, Lieutenant Coniglione saw the Kia fail to

“maintain its position in its lane” and “drift[] left of center” in the road. Suppl. R.

Vol. III at 309:18–20. Lieutenant Coniglione testified that he saw the Kia cross the

center of the road by about “a quarter of a vehicle width.” Id. at 312:9–11. The time

was 3:15 p.m., and the officers’ view was unobstructed. Even though the road didn’t

have a painted center line where Lieutenant Coniglione had seen Brown drift left of

center, he could see a yellow center line farther down the “[r]elatively straight” road.

Id. at 310:13–18, 311:7–11, 313:13–16.

       Sergeant Ritchie and Lieutenant Coniglione activated their car’s emergency

lights, and the Kia stopped. Lieutenant Coniglione and Sergeant Ritchie stepped out

from the car and walked toward the Kia. When they reached the rear bumper, “the

driver just put [the Kia] in gear and fled the scene.” Id. at 316:2–4. Sergeant Ritchie

and Lieutenant Coniglione returned to their car and “chased after” the Kia, reaching

speeds of 60 miles per hour in a 25-mile-per-hour zone. Id. at 98:12–17, 316:5–9.

While taking a turn too fast, the driver lost control of the Kia, crashed into the front

yards of some houses lining the street, and became stuck.



                                             4
         In response to radio transmissions, Detective Wes Cadena and Sergeant

George Anderson separately responded to the car chase, learning from a dispatcher

that the Kia had crashed. Upon arriving, the two officers saw Brown and Ingram flee

the Kia on foot. The two officers chased Brown and Ingram through a yard, past a

guard barrier, down an embankment, and up a creek bed before finally subduing and

arresting them.

         After Detective Cadena and Sergeant Anderson arrested Brown and Ingram,

Lieutenant Coniglione searched the Kia and found the black bag that Detective Reed

had seen Ingram carry from Anderson’s house. The bag contained 650.7 grams of

crack cocaine and $4,980. Lieutenant Coniglione found the bag on the front-

passenger-side floorboard. The government charged Brown and Ingram each with

possessing more than 280 grams of cocaine base with intent to distribute it, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(A).

   II.      The district court proceedings

         Before trial, Brown filed a motion to suppress the crack cocaine and money

seized from the Kia, arguing that the traffic stop was unjustified at its inception.

Ingram didn’t join the motion. Brown argued that “the isolated incident of drifting

left of center, unaccompanied by other driving irregularities,” is not a traffic violation

under Oklahoma City ordinances. Suppl. R. Vol. V at 5. Specifically, Brown argued

that if a roadway lacks clearly marked traffic lanes, then § 32-191(b) of the

Oklahoma City Municipal Code (entitled “Changing lanes”) merely requires that

“vehicles shall nevertheless keep in line or follow a straight course as nearly as

                                             5
practical . . .” Suppl. R. Vol. V at 8 (quoting Okla. City Mun. Code ch. 32, art. V §

32-191(b) (1980)). Brown contended that under this forgiving standard, a driver who

drifts across the center of a roadway hasn’t committed a traffic violation.

      The government countered that Oklahoma City ordinance § 32-192 was in fact

the traffic law applicable to Brown’s case. Section 32-192 provides that “[u]pon all

roadways of sufficient width a vehicle shall be driven to the right of the center of the

roadway,” subject to exceptions not at issue. Okla. City Mun. Code ch. 32, art. V §

32-192 (1980). The district court agreed with the government, concluding that § 32-

192’s omission of the “as nearly as practical” language used in § 32-191 “[was] a

clear indication that strict compliance is required.” Suppl. R. Vol. I at 38.

      The court also determined that Lieutenant Coniglione was “a credible witness”

and that “he observed the vehicle veer into the center lane about a quarter length of

the body of the car[.]” Id. at 37. Based on Lieutenant Coniglione’s testimony, the

court found that Brown’s left-of-center drift “amount[ed] to an observed traffic

violation giving rise to a reasonable inference that a traffic violation ha[d] occurred.”

Id.

      Ingram and Brown went to trial. During the trial, Ingram didn’t object to the

admission of the crack cocaine from the Kia. The jury found Ingram guilty of

possessing cocaine base with the intent to distribute it. The district court sentenced

him to two concurrent life-without-release imprisonment terms because of his two

earlier felony drug offense convictions, in line with 21 U.S.C. §§ 851, 841(a)(1),

(b)(1)(A). Ingram now appeals.

                                            6
                                     DISCUSSION

   A. The standard of review

       The parties disagree about the applicable standard of review. Generally, “[w]e

review de novo the ‘ultimate determination of Fourth Amendment reasonableness.’”

United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (en banc) (quoting United

States v. Allen, 986 F.2d 1354, 1356 (10th Cir. 1993)). When reviewing a district

court’s denial of a motion to suppress, “we accept the factual findings of the district

court . . . unless they are clearly erroneous.” United States v. Gregory, 79 F.3d 973,

977 (10th Cir. 1996).

       But in this case, Ingram didn’t file a motion to suppress in the district court, or

even join Brown’s. Though we ordinarily review claims first raised on appeal for

plain error, we apply a different standard for suppression issues not raised in the

district court.

       In United States v. Burke, 633 F.3d 984, 988 (10th Cir. 2011), we held that a

Rule 12 “suppression argument raised for the first time on appeal is waived (i.e.,

completely barred) absent a showing of good cause,” even though we had in earlier

cases engaged in plain-error review after the defendant failed to make the

suppression motion before trial. Relying on Burke, the government argues that

Ingram’s suppression argument is barred. Appellee Br. at 9.

       We decided Burke before the Advisory Committee on Criminal Rules’s recent

amendments to Rule 12. Subsection (e) of the version of Rule 12 then in force

provided that “[a] party waives any Rule 12(b)(3) defense, objection or request not

                                            7
raised by the deadline the court sets under Rule 12(c) or by an extension the court

provides. For good cause, the court may grant relief from the waiver.” Fed. R. Crim.

P. 12(3) (West 2013). But in 2014 the advisory committee deleted subsection (e)

from Rule 12 and expanded subsection (c) into three parts. Fed. R. Crim. P. 12(c)

(West 2017). The committee replaced Rule 12(e) with new Rule 12(c)(3) which

states, “If a party does not meet the deadline for making a Rule 12(b)(3) motion, the

motion is untimely. But a court may consider the defense, objection, or request if the

party shows good cause.” Id. at (c)(3).

      The advisory committee stated that it had removed the word “waiver” from

Rule 12 “to avoid possible confusion.” Fed. R. Crim. P. 12(c), advisory committee’s

note to 2014 amendments. The committee explained that

      [a]lthough the term waiver in the context of a criminal case ordinarily
      refers to the intentional relinquishment of a known right, Rule 12(e) has
      never required any determination that a party who failed to make a
      timely motion intended to relinquish a defense, objection, or request
      that was not raised in a timely fashion.

Id.

      The government argues that because the committee notes state that “[n]ew

paragraph 12(c)(3) retains the existing standard for untimely claims,” the 2014

amendments weren’t meant to substantively change Rule 12. Appellee’s Br. at 10 n.3

(quoting Fed. R. Crim. P. 12(c), advisory committee’s note to 2014 amendments).

And so, according to the government, Burke remains good law and bars Ingram from

first raising a suppression issue on appeal.


                                               8
       The Sixth Circuit disagreed with this same argument in United States v. Soto,

794 F.3d 635, 650–52 (6th Cir. 2015). The court concluded that the 2014 advisory

committee had consciously decided to omit the word “waiver” from Rule 12 to

clarify that “courts may no longer treat a party’s failure to file a timely 12(b)(3)

pretrial motion as an intentional relinquishment of a known right.” 794 F.3d at 652.

       Ingram argues that he didn’t “knowingly and voluntarily” waive his right to

challenge the legality of the stop. Appellant’s Reply Br. at 2, 4. This argument tracks

the reasoning of Soto because at bottom, Ingram contends that failing to raise a

suppression claim under Rule 12 doesn’t waive that claim. And if the Soto court and

Ingram are correct, then Ingram is entitled to plain-error review.

       Our circuit hasn’t addressed whether the advisory committee’s 2014 Rule 12

amendments affect our holding in Burke. And we decline to settle the issue now.

Instead, even if the plain-error standard1 governed Ingram’s suppression claim,

Ingram would falter on its first prong. The district court didn’t err in finding that

Lieutenant Coniglione saw Brown commit a traffic violation by crossing the center of

the road.

   B. The reasonableness of the traffic stop

       The Fourth Amendment protects “[t]he right of the people to be secure in their

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

       1
         To show plain error, a party must demonstrate that the district court
committed (1) an error, (2) that is plain, (3) that affects her substantial rights, and (4)
that seriously affects the fairness, integrity, or public reputation of judicial
proceedings. United States v. Olano, 507 U.S. 725, 732 (1993).

                                             9
U.S. Const. amend. IV. A traffic stop is reasonable under the Fourth Amendment if

(1) it is justified at its inception, and (2) the resulting search and seizure was

reasonably related in scope to the circumstances that justified the initial stop. Terry v.

Ohio, 392 U.S. 1, 19–20 (1968). Whether the stop was justified at its inception

depends on “the totality of the circumstances.” United States v. Salazar, 609 F.3d

1059, 1068 (10th Cir. 2010). To stop Brown and Ingram, Lieutenant Coniglione

needed “a particularized and objective basis” for doing so. United States v. Arvizu,

534 U.S. 266, 273 (2002) (internal quotation marks omitted). If police officers

witness a traffic violation, then the traffic stop is justified at its inception. United

States v. Eckhart, 569 F.3d 1263, 1271 (10th Cir. 2009).

       Ingram advances two arguments challenging the justification of the stop:

(1) that he didn’t commit a traffic violation under § 32-191(b) of the Oklahoma City

Municipal Code, which requires only that a driver “follow a straight course as nearly

as practical”; and (2) that the stop was pretextual because “the evidence suggests that

a reasonable officer would not have stopped [the Kia] without the invalid purpose of

obtaining evidence” of drug trafficking. Appellant’s Op. Br. at 1–2, 20. We will

address each argument in turn.2



       2
         The government makes three alternative arguments: (1) that Lieutenant
Coniglione and Sergeant Ritchie had independent reasonable suspicion to stop the
Kia based on Detective Reed’s having witnessed events consistent with drug
trafficking while surveilling 3344 Southwest 24th Street; (2) that because Ingram was
never seized, evidence of the crack cocaine found in the Kia shouldn’t be suppressed;
and (3) that the seized crack cocaine was abandoned property and not entitled to
Fourth Amendment protection. Appellee Br. at 22–23, 22 n.8, 27. Because we
                                             10
   1. The traffic violation
      Ingram argues that a driver who just once crosses over a road’s unmarked

center hasn’t violated Oklahoma City traffic laws. Appellant’s Op. Br. at 10. He

notes that § 32-191(b) of the Oklahoma City Municipal Code merely requires that a

driver on a road with unmarked traffic lanes “follow a straight course ‘as nearly as

practical.’” Appellant’s Br. at 10–11 (quoting Okla. City Mun. Code ch. 32, art. V §

32-191(b) (1980)). Ingram argues that lawmakers adopted the “as nearly as practical”

language in § 32-191(b) because maintaining a straight course in an unmarked traffic

lane is difficult, so mistakes such as drifting over the center of the road just once are

understandably unavoidable and don’t amount to a violation of the ordinance.

Appellant’s Op. Br. at 11.

      In response, the government argues that § 32-191(b) applies only when a

driver is changing lanes and that Brown wasn’t doing so when he momentarily

drifted across the center of the roadway. Appellee’s Br. at 19 (quoting Okla. City

Mun. Code ch. 32, art. V § 32-191(b) (1980)). The government asserts that Brown

violated Oklahoma City Municipal Code § 32-192, titled “Driving on right side of

roadway,” which requires “[u]pon all roadways of sufficient width a vehicle shall be

driven to the right of the center of the roadway.” Okla. City Mun. Code ch. 32, art. V

§ 32-192 (1980).




determine that the officers had a legal basis to stop Brown for crossing the center of
the road, we have no need to address these arguments.

                                           11
      We agree with the government. Section 32-191 is titled “Changing lanes,” and

concerns just that. Ingram ignores the context that § 32-191(a) helpfully provides:

      Whenever any roadway has been divided into two or more clearly marked
      lanes for traffic . . . a vehicle shall be driven as nearly as practical 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 . . .

Okla. City Mun. Code ch. 32, art. V § 32-191(a) (1980) (emphasis added). Sections

32-191(a) and 32-191(b) are part of the same ordinance and relate to each other.

Section 32-191(b) itself states that if a driver needs to stop adjacent to a curb or pass

another car, he must ascertain whether the movement can be made safely and provide

a signal that he “inten[ds] to change lanes.” Okla. City Mun. Code ch. 32, art. V §

32-191(b) (1980). Ingram never contends that Brown was attempting to change lanes

when he drifted left of center, so § 32-191(b) doesn’t apply.

      In contrast, § 32-192 requires drivers to remain right of the center of the

roadway. Under § 32-192’s plain language, Lieutenant Coniglione and Sergeant

Ritchie were justified in stopping Brown for failing to remain right of the center of

the roadway.3


      3
         Further, Brown likely committed a traffic violation even under his cited
ordinance requiring compliance “as nearly as practical.” See United States v.
Alvarado, 430 F.3d 1305, 1308–09 (10th Cir. 2005) (concluding that crossing the
right fog line just once in optimal road conditions justified a stop where the state
statute required compliance only as nearly as practical); United States v. Zabalza, 346
F.3d 1255, 1258 (10th Cir. 2003) (concluding that a vehicle crossing the center of a
roadway twice in optimal conditions justified a stop where the state statute required
staying in one lane as nearly as practical). But see United States v. Gregory, 79 F.3d
973, 978–79 (10th Cir. 1996) (concluding that a driver on a winding road didn’t
                                           12
         The district court correctly concluded that Lieutenant Coniglione and Sergeant

Ritchie had a full basis to stop Brown for a traffic violation. So even if we were to

grant Ingram plain-error review, he still couldn’t prevail—he has failed to show any

error.

   2. The allegedly pretextual stop
         Ingram next argues that Lieutenant Coniglione and Sergeant Ritchie used the

traffic stop as a pretext for stopping the Kia based on their suspicions that Brown and

Ingram had been participating in drug trafficking at Anderson’s house. Appellant’s

Op. Br. at 20. He claims that “the officers would not have stopped [the] vehicle on

the basis of driving left of center, without the officers’ primary intention and

illegitimate motivation of obtaining evidence of drug trafficking.” Appellant’s

Opening Br. at 20. In this regard, Ingram primarily relies on United States v. Smith,

799 F.2d 704, 710–11 (11th Cir. 1986). Appellant’s Op. Br. at 17–21.




commit a traffic violation that justified a traffic stop when the driver crossed the right
shoulder emergency-lane line once during very windy conditions); and United States
v. Freeman, 209 F.3d 464, 466 (6th Cir. 2000) (finding no probable cause to pull
over a motor home where it partially weaved into the emergency lane for a few feet
for a limited period of time and the operative statute required drivers to stay in their
lane only as nearly as practical).
        Here, Brown crossed the center of the road, and the district court found that
“the weather was sunny and not particularly windy, there were no other pedestrians,
objects, or traffic nearby to justify [Brown’s] swerving, and the driving conditions
were as good as any.” Suppl. R. Vol. I at 38 (internal quotation marks omitted). So it
was practical for Brown to keep his car within the lane and not cross the center of the
road.


                                           13
       In Smith, the Eleventh Circuit concluded that a state trooper had lacked

probable cause to stop a car where the driver slightly weaved within his own lane of

traffic, didn’t look at the trooper in the marked patrol car, and drove an out-of-state

car at 3 a.m. in a manner consistent with that of a drug courier. 799 F.2d at 706–07.

The court found that the officer had begun to pursue the car “before he observed any

‘weaving’ and, [that] even after he stopped the car, he made no investigation of the

possibility of intoxication.” Id. at 710. Moreover, the court explained “that a

reasonable officer would not have stopped the car absent an additional, invalid

purpose” and rejected the traffic stop as pretextual. Id. at 711.

       But Smith must succumb to the rule given in Whren v. United States, 517 U.S.

806, 813 (1996).4 In Whren, the Court held that “[s]ubjective intentions [of law

enforcement officers] play no role in ordinary, probable-cause Fourth Amendment

analysis.” 517 U.S. at 813. The Court foreclosed “any argument that the

constitutional reasonableness of traffic stops depends on the actual motivations of the

individual officers involved.” Id.

       In sum, whether the officers pursued the Kia before observing a traffic

violation “is legally irrelevant.” United States v. Polly, 630 F.3d 991, 997 (10th Cir.

2011). Again, Ingram can’t satisfy the first prong of plain-error analysis because the

district court didn’t err.




       4
       The Eleventh Circuit has ruled that Whren abrogated Smith. See Riley v. City
of Montgomery, 104 F.3d 1247, 1251 (11th Cir. 1997).
                                           14
                           CONCLUSION

For the reasons above, we affirm Ingram’s conviction.


                                   Entered for the Court


                                   Gregory A. Phillips
                                   Circuit Judge




                                  15
