                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        August 28, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 06-3279
          v.                                              (D. Kansas)
 A RCHY BELTR AN -LU G O ,                      (D.C. No. 05-CR-10228-W EB)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, M cKA Y, and M cCO NNELL, Circuit Judges.




I.    Introduction

      Defendant-Appellant Archy Beltran-Lugo was charged in a superseding

indictment with drug and immigration crimes. Beltran-Lugo moved to suppress

evidence obtained during a search of her Ford Explorer, arguing the initial traffic

stop was not supported by reasonable articulable suspicion and the subsequent

search of the vehicle w as not supported by probable cause. The district court

denied Beltran-Lugo’s motion. She entered a conditional guilty plea and was


      *
        This order and judgment is not binding precedent except under the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.
sentenced to eighty-four months’ incarceration. Beltran-Lugo now appeals the

district court’s denial of her motion to suppress. Exercising jurisdiction pursuant

to 28 U.S.C. § 1291, this court affirm s the district court’s ruling.

II.   Background

      On November 21, 2005, Kansas Highway Patrol Trooper John Rule was

patrolling highway I-70 in Ellis County, Kansas. As Rule traveled west, he

passed a white Ford Explorer w ith Arizona specialty license plates traveling east.

He noticed the rear of the Explorer was raised a little higher than normal and the

inside of the rear wheel well was “extremely dark” and appeared to be freshly

undercoated. Based on his training and prior experience with Explorers and other

sport utility vehicles, Rule suspected the white Explorer had a false compartment.

Specifically, Rule testified that when a false compartment is added to a vehicle,

the rear is elevated slightly from what is normal for that particular vehicle.

      Rule turned his patrol car around in the median and began to follow the

Explorer in the eastbound lanes. As he closed the distance between himself and

the Explorer, Rule passed an eastbound Ford Escape which had the same specialty

Arizona license plate as the Explorer. Rule testified the plate w as “a very rare

tag” to see on I-70 in w estern Kansas.

      W hen Rule caught up with the Explorer, he moved to the passing lane and

maneuvered his patrol car so the passenger side window was even with the rear

wheel well of the Explorer. From this vantage point, he testified he was able to

                                          -2-
look deeper into the w heel well to examine it more closely. Rule saw fresh

undercoating and what appeared to him to be a false floor compartment. Based

on these observations, Rule decided to conduct a traffic stop and question the

driver. H e testified,

       I was up basically even with the vehicle. I backed off behind, getting
       ready to stop the vehicle. And as I was backing off behind the
       vehicle, I observed another patrol car parked on the right shoulder
       with a truck stopped. And at that time I backed completely off–I
       don’t know–maybe six to eight car lengths behind the Explorer,
       attempting to give the driver of the Explorer room to move over, as is
       required by law [Kan. Stat. Ann. § 8-1530(b)(1)], to keep from
       hitting the other trooper. And I waited and that vehicle never came
       over. W e passed the other trooper that was parked on the shoulder.
       Shortly thereafter, I activated my emergency lights and conducted a
       traffic stop.

Rule approached the passenger side of the vehicle and asked the driver, Beltran-

Lugo, for her driver’s license and title to the vehicle. Beltran-Lugo provided

Rule with a driver’s license from M exico and told him she was traveling from

Arizona to Kansas City. In response to Rule’s questioning, Beltran-Lugo twice

denied she was traveling in tandem w ith the Ford Escape. Rule testified he

disbelieved Beltran-Lugo because he was confident she was traveling with the

driver of the Escape. 1 According to Rule, individuals smuggling drugs often have

escort vehicles traveling with them and, when asked, they often deny traveling

together. His conclusion was also based on his observation that the specialty

       1
        Trooper Steven Harvey conducted a traffic stop on the Ford Escape,
arresting the driver, Eder Zamudio-Carillo. A false compartment in the Escape
contained cocaine and heroin.

                                         -3-
license plates on the two vehicles w ere not only identical, but sequentially

numbered. He testified he believed the “odds of them not being together would

be astronomical.”

      Rule then stepped to the rear of the Explorer, looked underneath, and

confirmed the vehicle had a false floor running the length and width of the rear

cargo area. Rule testified he had seen other vehicles w ith false compartments

built the same way, with the same dimensions, and in his experience those

com partments w ere used to haul contraband. Rule arrested Beltran-Lugo. He

then ran his drug-detecting dog around the outside of the Explorer. The dog also

entered the Explorer and Rule testified it “went to the rear of the vehicle and

began indicating by scratching.”

      The Explorer was tow ed to the K ansas Highway Patrol Office in H ays,

Kansas, where Rule opened the false compartment and found twenty-three

kilograms of cocaine. Beltran-Lugo was charged in a superseding indictment

with one count of possession with the intent to distribute more than five

kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1); one count of

possession with the intent to distribute more than one kilogram of heroin, in

violation of 21 U.S.C. § 841(a)(1); one count of travel in interstate commerce to

promote an unlawful activity, in violation of 18 U.S.C. § 1952(a)(3); and one

count of unlawful entry into the United States by an alien, in violation of 8 U.S.C.

§ 1325(a)(1). Beltran-Lugo filed a motion to suppress the evidence seized during

                                          -4-
the search of her vehicle. The district court held a hearing on Beltran-Lugo’s

motion, listening to testimony from Trooper Rule, Orlando M artinez, an

investigator for the Federal Public Defender’s Office, and Ronald Dehart, an

individual with thirty-two years of auto body repair experience. The district

denied Beltran-Lugo’s motion, concluding the initial stop of the Explorer was

reasonable. The district court further concluded that Trooper Rule had probable

cause to believe the Explorer contained a false compartment containing

contraband and that Beltran-Lugo was committing a criminal offense.

Accordingly, the district court ruled the arrest of Beltran-Lugo and subsequent

search of the Explorer were reasonable under the Fourth Amendment. Beltran-

Lugo entered a conditional guilty plea, preserving her right to appeal the denial of

her motion to suppress. After she w as sentenced to eighty-four months’

imprisonment, she brought this appeal.

III.   Discussion

       W hen reviewing a district court’s denial of a motion to suppress evidence,

this court considers the totality of the circumstances, views the evidence in the

light most favorable to the Government, and accepts the court’s factual findings

unless clearly erroneous. United States v. Stephenson, 452 F.3d 1173, 1176 (10th

Cir. 2006). “The witnesses’s credibility and the weight to be given evidence,

together with all inferences and conclusions draw n from the evidence, are matters

within the province of the district judge.” Id. The ultimate determination of

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reasonableness under the Fourth Amendment, however, is a question of law

reviewed de novo. Id.

       Beltran-Lugo’s first challenge to the district court’s ruling focuses on the

justification for the traffic stop. See United States v. Cline, 349 F.3d 1276, 1286

(10th Cir. 2003) (stating the first step in our review of the constitutionality of a

traffic stop focuses on “whether the officer’s action was justified at its inception”

(quotation omitted)). The district court concluded the stop was proper on two

separate and independent grounds: (1) Rule’s observations led him to reasonably

conclude the Explorer may contain a false compartment and (2) without regard to

Rule’s actual subjective motivation in conducting the stop, at the time he initiated

the stop he had observed Beltran-Lugo comm it a traffic violation. In support of

its alternative ruling, the district found as follow s:

       Rule noticed in the distance ahead another Highway Patrol vehicle
       stopped on the right shoulder with its emergency lights flashing. The
       other KHP vehicle was being operated by Trooper Steve Harvey, who
       had stopped a semi-trailer and was conducting a commercial vehicle
       inspection. Trooper Harvey’s car was about a half-mile or a mile
       ahead when Rule first saw it. Rule dropped back behind the Explorer
       to give it room to move over into the left-hand lane away from
       Trooper Harvey’s car. Rule dropped back six or eight car-lengths
       and gave the driver of the Explorer sufficient time and room to move
       over, but she remained in the right-hand lane adjacent to Harvey’s
       vehicle as she passed by that vehicle.




                                            -6-
Beltran-Lugo does not challenge the district court’s finding that she failed to

move to a non-adjacent lane when she passed Trooper Harvey’s patrol car. 2 Nor

does she challenge the district court’s conclusion that her failure to switch lanes

gave Trooper Rule objectively reasonable articulable suspicion that she had

violated Kan. Stat. Ann. § 8-1530(b)(1). See United States v. Callarman, 273

F.3d 1284, 1287 (10th Cir. 2001) (“W hile either probable cause or reasonable

suspicion is sufficient to justify a traffic stop, only the lesser requirement of

reasonable suspicion is necessary.”). Her argument, instead, centers on Rule’s

subjective motivation for conducting the stop, the first basis upon which the

district court concluded the stop was reasonable. She asserts the initial stop of

her vehicle was improper because it is unreasonable to believe Rule saw

modifications to her vehicle consistent with the construction of a false

compartment while the two vehicles were traveling seventy miles per hour on the

highway. Relying on her misreading of an opinion from the Seventh Circuit, she

asserts the subsequent traffic violation cannot be used to justify the stop because

facts that arose after Rule first decided to pull her over “are irrelevant to the

question of whether reasonable suspicion existed.” Appellant Reply Brief at 11.

      2
       In her suppression motion, Beltran-Lugo argued she was unable to move to
the non-adjacent lane because Trooper Rule’s vehicle was in that lane at the time
she passed Trooper Harvey. The district court, however, found there was “no
credible evidence that the conditions were such that M s. Beltran could not have
safely m oved her vehicle to the left lane as she passed by Trooper Harvey.” On
appeal, Beltran-Lugo does not renew her challenge to the circumstances
surrounding the traffic violation.

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      The insurmountable problem with Beltran-Lugo’s argument is that this

court has previously rejected it. In United States v. Cervine, we held that once an

officer observes a defendant commit a traffic violation, any prior subjective

motivations he had for conducting a traffic stop have no bearing on whether the

stop was reasonable under the Fourth Amendment. 347 F.3d 865, 870 (10th Cir.

2003); see also W hren v. United States, 517 U.S. 806, 813 (1996) (“Subjective

intentions play no role in ordinary, probable-cause Fourth Amendment

analysis.”). A traffic stop is reasonable under the Fourth Amendment if a police

officer has a reasonable articulable suspicion the driver has committed a traffic

violation. Callarman, 273 F.3d at 1287; United States v. Ozbirn, 189 F.3d 1194,

1197 (10th Cir. 1999). Thus, once Trooper Rule observed Beltran-Lugo commit

the traffic violation by failing to move to the non-adjacent lane, the subsequent

stop of her vehicle was justified.

      Regardless of the propriety of the initial stop, Beltran-Lugo alternatively

argues Trooper Rule did not have probable cause to search her vehicle. “Probable

cause to search a vehicle exists if, under the totality of the circumstances, a fair

probability exists that the vehicle contains contraband or other evidence which is

subject to seizure under the law.” Stephenson, 452 F.3d at 1177 (quotation

omitted). Probable cause is evaluated by examining the historical facts viewed

from the perspective of an objectively reasonable police officer. Ornelas v.

United States, 517 U.S. 690, 696 (1996).

                                          -8-
      In United States v. Jurado-Vallejo, this court considered whether evidence

of a hidden compartment alone may provide probable cause to search a vehicle.

380 F.3d 1235, 1238 (10th Cir. 2004).

      W hether probable cause to search a vehicle can be based on evidence
      of a hidden compartment depends on two factors: (1) the probative
      value of the evidence–that is, the likelihood that there really is a
      hidden compartment; and (2) the likelihood that a vehicle with a
      hidden compartment would, in the circumstances, be secreting
      contraband.

Id. Beltran-Lugo only disputes whether the first part of this test was met, arguing

the undercoating and jagged edge on the metal panel of the Explorer’s wheel well

were insufficient to warrant a person of reasonable caution to believe the Explorer

contained a false compartment. She relies primarily on the testimony of her

expert, Ronald D ehart, w ho has repaired five to six hundred Ford Explorers. At

the suppression hearing, Dehart was shown photographs of Beltran-Lugo’s

vehicle. He acknowledged the vehicle had excessive undercoating but testified

that was not unusual. W hen asked about the rough edge on the inner wheelhouse

panel, Dehart testified its appearance was consistent with a sloppy repair job and

that he would not have suspected it was part of a hidden compartment. On cross-

examination, however, he admitted he had not personally examined Beltran-

Lugo’s vehicle and conceded he did not have experience detecting false

compartments in vehicles.




                                         -9-
      Based on the testimony presented at the suppression hearing, the district

court specifically found that after speaking to Beltran-Lugo, Trooper Rule

visually inspected the rear of the Explorer and saw a panel wall with a jagged

edge that was not factory-installed. The alteration to the panel wall was virtually

identical to modifications Rule had previously seen on Ford Explorers to which

hidden compartments had been added. Rule also observed the area was covered

in a heavy layer of fresh undercoating which he reasonably inferred was an

attempt to disguise the modification to the panel wall. Further, Rule believed

Beltran-Lugo had lied when she denied traveling with another vehicle. This

belief was supported by his observation that both vehicles bore the same specialty

license plates which were sequentially numbered. Rule’s conclusion was based

on his experience that drug smugglers often travel in tandem w ith escort vehicles

but deny this when asked.

      These findings amply support the conclusion that Trooper Rule had

probable cause to believe Beltran-Lugo’s vehicle contained a hidden compartment

containing contraband. See U nited States v. Ledesma, 447 F.3d 1307, 1316 (10th

Cir. 2006) (“The ultimate question is w hether the facts and circumstances w ithin

the officers’ knowledge . . . are sufficient in themselves to warrant a man of

reasonable caution in the belief that an offense has been or is being committed.”

(quotations omitted)). Notwithstanding Beltran-Lugo’s assertions, Dehart’s

testimony is not inconsistent with this conclusion. Dehart’s visual observations

                                         -10-
were identical to those of Trooper Rule and Dehart conceded he had no

experience detecting false compartments. Because the search of Beltran-Lugo’s

vehicle was supported by probable cause, it was reasonable under the Fourth

Amendment.

IV.   Conclusion

      The judgment of the district court denying Beltran-Lugo’s m otion is

affirm ed.

                                     ENTERED FOR THE COURT



                                     M ichael R. M urphy
                                     Circuit Judge




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