     Case: 17-30293   Document: 00514444610        Page: 1   Date Filed: 04/24/2018




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

                                    No. 17-30293
                                                                          Fifth Circuit

                                                                        FILED
                                                                    April 24, 2018

UNITED STATES OF AMERICA,                                          Lyle W. Cayce
                                                                        Clerk
             Plaintiff - Appellee

v.

EZEQUIEL LANDAVERDE-CASTILLO,

            Defendant - Appellant
_______________________________________________

consolidated with 17-30294

UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

DAVID DIAZ, JR.,

             Defendant - Appellant




                Appeals from the United States District Court
                    for the Western District of Louisiana
                          USDC No. 5:15-CR-234-1
                          USDC No. 5:15-CR-234-2


Before KING, HAYNES, and HIGGINSON, Circuit Judges.
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                           No. 17-30293 c/w No. 17-30294
PER CURIAM:*
           Ezequiel Landaverde-Castillo and David Diaz, Jr., challenge their
convictions on drug offenses arguing that the district court should have
suppressed evidence obtained after a Louisiana state trooper pulled them over
for driving in the left-hand lane. We AFFIRM.
                                   I.    Background
       Landaverde-Castillo and Diaz were charged in a two-count indictment
with conspiracy to possess with intent to distribute one kilogram or more of
heroin and possession with intent to distribute one kilogram or more of heroin.
The charges followed a traffic stop in Bossier Parish, Louisiana, of a vehicle
occupied by both men; Landaverde-Castillo owned the vehicle and consented
to a search, and both men were subsequently arrested.                     Prior to trial,
Landaverde-Castillo and Diaz moved to suppress all evidence and statements
obtained as a result of the warrantless stop and search, arguing that there was
no reasonable suspicion or probable cause to believe that they were involved in
illegal activity or had committed a traffic violation.
       At the suppression hearing, the Government presented its evidence
about the initiation of the stop primarily through Louisiana State Trooper
George Strickland. Strickland, a nine-year veteran, testified that the vehicle
in question, a Nissan, was traveling in the left-hand lane in violation of
Louisiana law.      See LA. STAT. ANN. § 32:71(B)(1)(a).           After observing the
continued travel in the left lane, Strickland initiated a traffic stop, and the
Nissan pulled over.




       * 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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        Strickland exited his patrol unit and approached the Nissan.         After
speaking to both the driver (Diaz) and his passenger (Landaverde-Castillo)
about their travel itinerary, Strickland called for backup from another trooper.
A subsequent consent search of the Nissan led to the discovery of two hidden
compartments which contained 18 packages of heroin.
        On cross-examination, the defendants’ attorneys pressed Strickland on
the details leading up to the stop. Additionally, Landaverde-Castillo testified
that as Diaz drove along I-20 in Bossier Parish, their vehicle had been in the
right-hand lane. At some point, Landaverde-Castillo saw a car parked off the
side of the road; he did not recognize the car to be a law enforcement vehicle,
and the car’s headlights and taillights were not on.         Landaverde-Castillo
directed Diaz to move into the left-hand lane, and Diaz did so prior to passing
the parked car. Immediately after they passed the parked car, Landaverde-
Castillo testified, they “tried to get on the right-hand side lane, but the trooper
was going next to [them] and . . . was not letting [them] move over to the right
lane.” They “did not have any opportunity” to safely move back into the right-
hand lane before the trooper activated his overhead lights.
        Following the hearing, Landaverde-Castillo and Diaz submitted
supplemental memoranda, in which they urged the court to credit Landaverde-
Castillo’s testimony over Strickland’s testimony. The defendants argued that
only Landaverde-Castillo’s testimony was consistent with the undisputed fact
that the traffic stop occurred over two miles of interstate. The stop could not
possibly have been completed in that short a distance, they asserted, given
Strickland’s estimated measurements and the laws of physics. The defendants
also argued that Strickland’s conduct created the alleged traffic violation
because Diaz did not have any opportunity to move back into the right-hand
lane.


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                             No. 17-30293 c/w No. 17-30294

      The magistrate judge issued a report and recommendation to deny the
motions to suppress. With respect to the traffic stop, the magistrate judge
determined that the first prong of the Terry 1 framework was satisfied, i.e.,
Strickland’s action of stopping the vehicle was justified at its inception. The
magistrate judge found that Strickland had probable cause to believe that the
Nissan was traveling in the passing lane of the interstate in violation of
Louisiana law.
      Landaverde-Castillo and Diaz each objected to the report and
recommendation. The district court, however, concurred with the magistrate
judge’s findings and reasoning and denied the motions to suppress.
      Pursuant to written plea agreements, Landaverde-Castillo and Diaz
pleaded guilty to the conspiracy offense, reserving the right to appeal the
denial of their respective motions to suppress. Landaverde-Castillo and Diaz
now appeal.
                                II.   Standard of Review
      On appeal from the denial of a motion to suppress evidence, this court
“reviews factual findings for clear error and the ultimate constitutionality of
law enforcement action de novo.” United States v. Robinson, 741 F.3d 588, 594
(5th Cir. 2014). In reviewing for clear error, this court views the evidence in
the light most favorable to the prevailing party (here, the Government), see
United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010), and must defer to the
district court’s factual findings unless there is “a definite and firm conviction
that a mistake has been committed,” United States v. Scroggins, 599 F.3d 433,
440 (5th Cir. 2010). “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 to observe the demeanor of the


      1   Terry v. Ohio, 392 U.S. 1 (1968).

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                         No. 17-30293 c/w No. 17-30294

witnesses.” United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (quoting
United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005)). A district court
properly defers to the magistrate judge’s credibility determinations when those
determinations are supported by the record. Id.
                                III.   Discussion
      Both defendants attack the district court’s decision denying suppression.
Each argues that Strickland lacked objectively reasonable suspicion to stop
them because they did not travel in the left-hand lane in violation of Louisiana
law. Their primary attack is that the district court should not have credited
Strickland’s testimony about how long he watched them drive because his
account defies the laws of physics.
      The legality of a traffic stop is examined under the two-pronged analysis
described in Terry v. Ohio, 392 U.S. 1 (1968). See United States v. Brigham,
382 F.3d 500, 506 (5th Cir. 2004). This appeal focuses solely on the first Terry
prong—whether Strickland’s decision to conduct a stop of the Nissan was
justified at its inception. See id. “For a traffic stop to be justified at its
inception, an officer must have an objectively reasonable suspicion that some
sort of illegal activity, such as a traffic violation, occurred, or is about to occur,
before stopping the vehicle.” United States v. Lopez-Moreno, 420 F.3d 420, 430
(5th Cir. 2005). “[R]easonable suspicion exists when the officer can point to
specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant the search and seizure.” Id. A traffic
stop is justified when an officer observes a violation of traffic laws. Whren v.
United States, 517 U.S. 806, 810 (1996); see, e.g., United States v.
Khanalizadeh, 493 F.3d 479, 482 (5th Cir. 2007) (per curiam).
      Here, the evidence used to justify the stop was Strickland’s testimony
that he saw the defendants’ vehicle driving in the left-hand lane without any
valid reason in violation of Louisiana traffic laws.           See LA. STAT. ANN.

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§ 32:71(B)(1)(a). He testified that he saw the Nissan pass him in the left-hand
lane, waited to see if it would return to the right-hand lane, and then initiated
a traffic stop after it did not. The district court credited his testimony over the
defendants’ later testimony.
      We do not “casually disturb” a district court’s credibility finding. United
States v. Casteneda, 951 F.2d 44, 48 (5th Cir. 1992).         We will, however,
intervene and “declare testimony incredible as a matter of law, ‘when
testimony is so unbelievable on its face that it defies physical laws . . . .’” Id.
(ellipses in original) (quoting United States v. Lindell, 881 F.2d 1313, 1322 (5th
Cir. 1989)). On the other hand, if the issue comes down to a credibility dispute,
we defer to the trial judge. See United States v. Gillyard, 261 F.3d 506, 509
(5th Cir. 2001).
      Landaverde-Castillo and Diaz maintain that the magistrate judge’s and
the district court’s credibility determinations were clearly erroneous because
“Strickland’s testimony irreconcilably conflicts with the unerring laws of
Newtonian physics.” To attack Strickland’s testimony, Landaverde-Castillo
and Diaz read it narrowly and literally. They offer various mathematical
calculations regarding time, distance, and speed in an attempt to undermine
the sequence of events to which Strickland testified.             However, their
arguments overlook the basic fact that Strickland did not provide precise
measurements. Rather, he gave estimates regarding the sequence of events,
and he clearly testified that he observed the cited traffic violation. Strickland
offered only approximate figures regarding the distance that the Nissan
traveled before he entered the interstate, the distance it took him to catch up
to the Nissan, and the total distance from his parked location to the traffic stop
location. He repeatedly hedged his estimates with statements like, “I don’t




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know” and “maybe.”           None of his conclusions about the traffic violation
depended on the precision of the estimates he gave.
       More importantly, the magistrate judge did not have to take literally
everything that Strickland said in order to credit the part of his testimony that
mattered: that he witnessed the defendants drive in the left-hand lane after
giving them enough time to return to the right-hand lane. Even assuming
Strickland mistakenly estimated the distance the defendants traveled before
he pulled out, that does not mean the magistrate judge had to discredit all of
his other testimony. Strickland testified that he gave the Nissan “ample time”
to safely move back to the right-hand lane. The magistrate judge observed the
demeanor of the competing witnesses and believed Strickland’s testimony. The
defendants have not shown that this court should disturb that credibility
finding. See Gibbs, 421 F.3d at 357; Casteneda, 951 F.2d at 48.
       For the same reasons, Diaz’s argument that the magistrate judge and
the district court clearly erred in finding that Strickland gave the driver
“plenty of time” to merge back into the right-hand lane also fails. Although
Landaverde-Castillo testified that the trooper immediately drove alongside the
Nissan and did not give Diaz enough room to move into the right-hand lane,
the magistrate judge and the district court chose to credit Strickland’s
testimony over Landaverde-Castillo’s. Such a credibility determination cannot
be clear error. See Gillyard, 261 F.3d at 509. 2




       2 Landaverde-Castillo argues that Strickland “created” the circumstances justifying
the stop by driving so that he and Diaz could not return to the right-hand lane. He cites only
the dissent in United States v. Escalante for support. 239 F.3d 678, 681–83 (5th Cir. 2001)
(Stewart, J. dissenting). Unlike the evidence in that case, Strickland testified that he
observed the cited traffic violation, and he then entered the interstate. Therefore, even if the
dissent in Escalante were the controlling opinion and correctly identified a Fourth
Amendment violation, this case falls outside its reasoning.

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                        No. 17-30293 c/w No. 17-30294

      Because Landaverde-Castillo’s and Diaz’s arguments do not suffice to
permit a “definite and firm conviction” that the district court erred in crediting
Strickland’s testimony, this court is bound to defer to the district court’s
decision. See Scroggins, 599 F.3d at 440. Considering the relevant part of
Strickland’s testimony, which was based on his observations, there were
specific and articulable facts that reasonably warranted the stop of the Nissan
in light of governing state law.        See Lopez-Moreno, 420 F.3d at 430.
Accordingly, viewing the evidence in the light most favorable to the
Government, we conclude that the district court did not reversibly err in
denying the motions to suppress.
      AFFIRMED.




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