                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0134n.06

                                      Nos. 19-3121/3444

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                               Mar 06, 2020
UNITED STATES OF AMERICA,                             )                    DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )   ON APPEAL FROM THE UNITED
v.                                                    )   STATES DISTRICT COURT FOR
                                                      )   THE SOUTHERN DISTRICT OF
WILBERTO NEMROD SALAZAR (19-3121);                    )   OHIO
RAFAEL     ALEJANDRO SOMARRIBA                        )
(19-3444),                                            )
                                                      )
       Defendants-Appellants.                         )



       BEFORE: GIBBONS, McKEAGUE, and WHITE, Circuit Judges.

       PER CURIAM. Wilberto Nemrod Salazar and Rafael Alejandro Somarriba appeal the

denial of their motion to suppress evidence. As set forth below, we AFFIRM.

       Salazar and Somarriba were travelling eastbound on Interstate 70 in a black Chevy Malibu

when they exited the highway and parked in the commercial-vehicle area of a rest stop. Sergeant

Timothy Williamson, a trooper with the Ohio State Highway Patrol, followed the Malibu into the

rest stop and parked his cruiser directly behind the vehicle. After talking with Salazar and

Somarriba, Sergeant Williamson called for a K-9 unit. The dog scratched at the Malibu, indicating

the odor of narcotics, and a search of the vehicle uncovered nine bundles of heroin with a total

approximate weight of 21.5 pounds.
Nos. 19-3121/3444, United States v. Salazar, et al.


       A federal grand jury subsequently returned an indictment charging Salazar and Somarriba

with possession with intent to distribute one or more kilograms of heroin, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(A)(i).

       Salazar filed a motion to suppress the heroin seized from the Malibu, asserting in relevant

part that Sergeant Williamson lacked probable cause to stop the vehicle. Somarriba joined in the

suppression motion. At the evidentiary hearing, Sergeant Williamson testified that several minutes

before spotting the Malibu, he had received a call from another sergeant suggesting that he look

out for a vehicle matching the Malibu’s description.         When the Malibu passed Sergeant

Williamson’s vehicle on Interstate 70, he pulled out of the crossover and began following it

because it was moving slowly. He and his passenger, Officer Morehouse, then quickly recognized

it as the vehicle he had been told to look for. Shortly after they began following it, Sergeant

Williamson and Officer Morehouse observed the Malibu take the exit for the rest area “at the last

minute” and cut across the solid lane lines marking the gore.1 (R. 44, PageID 156).

       The district court denied the suppression motion, concluding in relevant part that Sergeant

Williamson had probable cause to believe that Salazar, the driver of the Malibu, exited the highway

without first ascertaining that the movement could be made with safety, in violation of Ohio

Revised Code § 4511.33(A). Salazar and Somarriba entered conditional guilty pleas, preserving

their right to appeal the denial of the suppression motion. The district court sentenced Salazar to

34 months of imprisonment and three years of supervised release and Somarriba to 46 months of

imprisonment and four years of supervised release.




1
 The gore is the triangular area between the highway and an exit ramp marked by V-shaped lines—
one line continuing along the side of the highway and another line extending along the side of the
ramp. (R. 44, PageID 157).
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Nos. 19-3121/3444, United States v. Salazar, et al.


       Salazar and Somarriba filed timely notices of appeal. This court granted the government’s

motion to consolidate the appeals for briefing and submission and also granted Somarriba’s motion

to adopt Salazar’s brief. Defendants raise two challenges to the district court’s denial of their

suppression motion, arguing (1) that the district court committed legal error in relying on an Ohio

Supreme Court opinion rather than binding circuit authority to decide the legality of the stop and

(2) that the district court’s factual findings regarding the stop are clearly erroneous. In reviewing

the denial of the suppression motion, we review the district court’s factual findings for clear error

and its legal conclusions de novo. United States v. Winter, 782 F.3d 289, 295 (6th Cir. 2015).

       “[S]o long as the officer has probable cause to believe that a traffic violation has occurred

or was occurring, the resulting stop is not unlawful and does not violate the Fourth Amendment.”

United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993); see Whren v. United States, 517 U.S.

806, 810 (1996) (“As a general matter, the decision to stop an automobile is reasonable where the

police have probable cause to believe that a traffic violation has occurred.”). Sergeant Williamson

testified that he observed a traffic violation when the Malibu took the exit ramp for the rest stop

“at the last minute” and cut across the solid lane lines marking the gore. (R. 44, PageID 156).

Under Ohio law, “[w]henever any roadway has been divided into two or more clearly marked lanes

for traffic,” a vehicle “shall be driven, as nearly as is practicable, entirely within a single lane or

line of traffic and shall not be moved from such lane or line until the driver has first ascertained

that such movement can be made with safety.” Ohio Rev. Code § 4511.33(A)(1). The district

court concluded that Sergeant Williamson had probable cause to believe that Salazar exited the

highway without first ascertaining that the movement could be made with safety and therefore

violated Ohio Revised Code § 4511.33(A).




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Nos. 19-3121/3444, United States v. Salazar, et al.


       As an initial matter, the record is unclear as to whether a “stop”—that is, seizure within the

meaning of the Fourth Amendment—occurred when Sergeant Williamson parked behind Salazar

and Somarriba’s Malibu and began questioning them. A police interation can transform from a

consensual encounter into a seizure when “a reasonable person [would] have believed that he or

she was not free to walk away.” United States v. Foster, 376 F.3d 577, 584 (6th Cir. 2004)

(alteration in original) (quotation omitted). In the context of parked vehicles, this court has held

that a seizure occurs when a parked car and its occupants are “blocked” by a police cruiser. United

States v. Gross, 662 F.3d 393, 399–400 (6th Cir. 2011); United States v. See, 574 F.3d 309, 313

(6th Cir. 2009). Here, though, Sergeant Williamson testified only that he “pulled directly behind”

the Malibu. (R. 44, PageID 161). And it seems, from his testimony, that there was nothing in

front of the Malibu. (See id.). Thus, a reasonable person in Salazar and Somarriba’s position,

seeing a police cruiser behind them and being asked to move from the commercial-vehicle area of

the rest stop, may have felt free to leave in the face of Sergeant Williamson’s continued

questioning. But because both sides assume that a Fourth Amendment-triggering stop occurred

when Sergeant Williamson pulled up behind the Malibu, we will proceed on that assumption.

       Salazar and Somarriba argue that the district court committed legal error in relying on an

Ohio Supreme Court opinion rather than binding circuit authority to decide the legality of the stop.

Defendants contend that the district court’s reliance on State v. Mays, 894 N.E.2d 1204 (Ohio

2008), was misplaced because that case involved an alleged violation of the single-lane rule rather

than the lane-change rule and because the Ohio court required only reasonable suspicion that a

traffic violation had occurred rather than probable cause. The district court cited Mays in response

to defendants’ reliance on State v. Ross, where an Ohio appellate court explained that the

government “must present evidence ‘that the driver of a vehicle moving either between lanes of


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Nos. 19-3121/3444, United States v. Salazar, et al.


traffic or completely out of a lane of traffic failed to ascertain the safety of such movement prior

to making the movement.’” 990 N.E.2d 1127, 1130 (Ohio Ct. App. 2013) (quoting State v. Barner,

No. 04CA0004-M, 2004 WL 2535394, at *3 (Ohio Ct. App. Nov. 10, 2004)). This is what is

required to sustain a conviction under Ohio Revised Code § 4511.33(A), not what is required to

uphold the constitutionality of a traffic stop. See Ross, 990 N.E.2d at 1129-31. As the Ohio

Supreme Court in Mays pointed out:

       [T]he question of whether appellant might have a possible defense to a charge of
       violating R.C. 4511.33 is irrelevant in our analysis of whether an officer has a
       reasonable and articulable suspicion to initiate a traffic stop. An officer is not
       required to determine whether someone who has been observed committing a crime
       might have a legal defense to the charge.

894 N.E.2d at 1208; see also United States v. Collazo, 818 F.3d 247, 255 (6th Cir. 2016) (“[T]he

question whether probable cause existed to believe that there was a violation of the statute is

different from whether a violation in fact occurred.”); Kinlin v. Kline, 749 F.3d 573, 578 (6th Cir.

2014) (“Whether [the driver] actually ‘ascertained that [his lane-change] movement [could] be

made with safety,’ see Ohio Rev. Code § 4511.33(A)(1), is irrelevant” where the officer “had a

reasonable basis upon which to conclude that the movement was unsafe.” (second and third

alterations in original)). Contrary to defendants’ arguments, the district court did not rely on the

facts of Mays and did not apply the reasonable suspicion standard.

       Salazar and Somarriba also argue that the district court erred in failing to follow United

States v. Gross, 550 F.3d 578, 583 (6th Cir. 2008), in which this court held that the officer lacked

probable cause to stop a vehicle for a lane-change violation under a similarly worded Tennessee

statute. The facts of Gross are distinguishable. The officer in that case had described “essentially

a slow lane change,” and this court determined that, “[w]ithout some further allegation of erratic

or improper driving, this simply is not within the scope of the statute.” Id. at 583. In contrast,


                                               -5-
Nos. 19-3121/3444, United States v. Salazar, et al.


Sergeant Williamson described “erratic or improper driving”: the Malibu took the exit ramp for

the rest stop “at the last minute” and cut across the solid lane lines marking the gore. (R. 44,

PageID 156). The district court properly concluded that, under this factual scenario, Sergeant

Williamson had probable cause to believe that Salazar exited the highway without first ascertaining

that the movement could be made with safety, in violation of Ohio Revised Code § 4511.33(A).2

       Salazar and Somarriba contend that Sergeant Williamson’s testimony was not credible and

that the district court clearly erred in accepting his testimony as true. “[W]e must give deference

to the district court’s assessment of credibility inasmuch as the court was in the best position to

make such a determination.” United States v. Hill, 195 F.3d 258, 264-65 (6th Cir. 1999).

       According to defendants, Sergeant Williamson’s testimony that he personally observed the

alleged traffic violation cannot be reconciled with the testimony of Detective Marlo Morehouse,

who was riding along with Sergeant Williamson that day. Detective Morehouse testified that she

told Sergeant Williamson that she observed a violation and that the vehicle crossed over the

pavement markings; her testimony is not inconsistent with Sergeant Williamson’s personal

observation of the violation. Defendants also argue that Sergeant Williamson was unable to offer

a plausible explanation for failing to activate his dashcam recorder as he followed the Malibu and

that the more likely explanation is that the omission was deliberate. The district court rejected this

assertion, noting that defendants had not produced any evidence showing that Sergeant Williamson

intentionally failed to activate the dashcam recorder and that there were “a variety of reasons” that

could explain his failure to do so. Finally, defendants contend that a private investigator’s video


2
  Because the district court properly determined that Sergeant Williamson had probable cause to
believe that the Malibu violated Ohio Revised Code § 4511.33(A), we need not address the
government’s alternative argument that the vehicle’s parking violation—parking in the area of the
rest stop designated for commercial vehicles—provided an independent basis for probable cause
justifying the stop.
                                                -6-
Nos. 19-3121/3444, United States v. Salazar, et al.


recording proves that Sergeant Williamson could not have observed the alleged traffic violation

from his vantage point about a quarter of a mile behind the Malibu. The private investigator

testified that he saw the gore lines “[j]ust as I’m coming up on it as I’m starting to get off the—to

the ramp to the rest area.” (R. 44, PageID 350). The private investigator went on to acknowledge

that his testimony and video recording did not preclude the possibility that the officers saw a lane

violation, stating, “I wasn’t there so I don’t know what they saw.” (Id. PageID 352). When asked

if the officers could have seen a lane violation, the private investigator responded, “Could have.

Could not have. I can’t say.” (Id.). Defendants have therefore not shown that the district court’s

credibility determination was clearly erroneous.

       For these reasons, we AFFIRM the district court’s denial of the suppression motion.




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