                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                            January 24, 2007
                                      TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                               Clerk of Court

 UNITED STATES OF AMERICA,
                                                               No. 05-5164
           Plaintiff - Appellee,
                                                     (D.C. No. 04-CR-187-002-TCK)
 v.
                                                                (N.D.OK)
 DERRICK RICHARDSON,

           Defendant - Appellant.



                                   ORDER AND JUDGMENT *


Before HENRY, HOLLOWAY and LUCERO, Circuit Judges.**


       Defendant-appellant Derrick Richardson brings this direct appeal from his conviction

on a single count of possession of five kilograms or more of cocaine with intent to distribute

and aiding and abetting co-defendants Jessie Riser and Toya Berry in the offense. Following

the denial of a motion to suppress the evidence, which had been joined by co-defendant

Riser, Richardson entered a conditional plea of guilty to the charge. He was sentenced to 90

months’ imprisonment, a five year term of supervised release, a fine of $5,000, and a special


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
assessment of $100.

                                               I

       Defendant was in the front passenger seat of a rented car being driven by co-defendant

Riser when the car was pulled over by a state trooper near Vinita, Oklahoma. Berry and a

child were in the back of the car, which Berry had rented. The car had just passed through

the main toll gate on the Will Rogers Turnpike when it was pulled over. The initial stop was

based on the driver failing to signal when branching off from the turnpike into the toll plaza.

III R. at 65-66. Whether this maneuver required a signal because it was either a lane change

or an exit from the controlled access turnpike is the sole issue on appeal.

       On this turnpike, the main toll plaza is near the mid-point, about five miles southwest

of Vinita.    Drivers with electronic signaling devices known as pike passes (which

demonstrate pre-payment of tolls) continue straight ahead past the toll area, and are not

required to slow down. The speed limit on the turnpike is 75 miles per hour. Drivers who

are paying the toll in cash enter the toll plaza, which is to the right of the main roadway.

Riser, driving the car in which Richardson was a passenger, did not signal when he went

right into the toll booth area.

       Although the record is slightly unclear on the point, it appears that drivers entering

the toll booth area, which can properly be entered only from the right-hand lane, do not cross

a lane marker. III R. at 70. This fact provides the basis for defendant’s argument that no

signal is required; he says that a signal is required only for changing lanes, and that this was

not a change of lanes.

                                              -2-
       Because only the initial stop is challenged on appeal, we need not detail the facts

relating to the conversations between officers and the car’s occupants and other facts which

aroused the officers’ suspicions, nor the other events in the sequence. It is sufficient to note

that eventually a trained dog alerted to the undercarriage of the car, where the spare tire was

stowed, and that five packages each containing about one kilogram of cocaine were

subsequently recovered from the undercarriage.

                                               II

       The trial court held an evidentiary hearing on the motion to suppress, at which the

only two witnesses were State Trooper Hise, who made the initial stop, and Trooper Perry,

who subsequently arrived to assist Trooper Hise. In a written order denying the motion to

suppress, the district judge said that the evidence supported defendant’s argument that no

change of lane was involved in entering the toll area. A turn signal is required by statute

when changing from a marked lane. The statute provides:

         Whenever any roadway has been divided into two or more clearly marked
       lanes for traffic, the following requirements in addition to all others consistent
       herewith shall apply.

       1. A vehicle shall be driven as nearly as practicable entirely within a single
       lane.

       2. A vehicle shall not be moved from the lane until the driver has first
       ascertained that the movement can be made with safety and then given a
       signal, not less than the last one hundred (100) feet traveled by the vehicle, of
       his intention to change lanes.




                                              -3-
47 Okla. Stat. § 11-309.1 The district judge said that the “evidence does not show [the

driver] violated this statute; he never changed lanes.” The judge concluded, however, that

precedent required him to hold that the stop was lawful.

       In United States v. Manjarrez, 348 F.3d 881 (10th Cir. 2003), this court considered

a case with very similar facts except that the traffic stop there was made at the midway toll

area of the Turner Turnpike in Oklahoma (roughly from Oklahoma City to Tulsa), rather than

the Will Rogers Turnpike (roughly from Tulsa to Joplin, Missouri). In that case, after

viewing a video tape of the incident, a different district judge had found that the defendant

had “violated Oklahoma law when he failed to signal his exit from the turnpike . . . .” 348

F.3d at 885. The district judge in that case had also concluded that “leaving the turnpike to

go on to the toll plaza is leaving a lane as contemplated by Oklahoma statutes and therefore,

precipitates an obligation to signal.” Id. This court affirmed, expressing its agreement with

the district court’s finding that the defendant had changed lanes and that “a signal is required

when exiting the interstate.” Id.

       Concluding that Manjarrez was controlling, the district judge in the instant case

denied the motion to suppress and found the initial stop valid, although making it clear that

he would have found otherwise if the case had been one of first impression. The judge read

Manjarrez as holding that “entering into the tollgate area is ‘exiting’ the toll road, even



       1
         We quote the current version of the statute, which is substantively the same as an
earlier version quoted by the district court. The primary difference is that current
subparagraphs one and two were in a single subparagraph prior to amendment of the
statute in 2005.

                                              -4-
though a driver remains in the very same lane from the time prior to approaching the toll area

right up to the time he is at the actual tollbooth.” Order at 5.

                                              III

       The only issue Mr. Richardson raises on appeal is whether the initial stop was

justified. It is well settled that a traffic stop is a seizure within the meaning of the Fourth

Amendment and that a stop is valid if based on an observed traffic violation or reasonable,

articulable suspicion that a violation has occurred. See, e.g., United States v. Callarman, 273

F.3d 1284, 1286 (10th Cir. 2001). In the present case the validity of the stop turns on

whether a driver approaching the main toll plaza on the Will Rogers Turnpike is required to

signal his intent to go right to the toll plaza when doing so does not involve crossing a lane

marker.

       Although this seems a very simple question, that appearance is deceptive because

further examination reveals complications. The maneuver at issue is not easily determined

to be either a lane change or an exit from the turnpike; paradoxically, though, it is

problematic to view it as not either of those options.

       On one hand, to say that entering the toll booth area is “exiting” the toll road seems

contrary to the common understanding of the term, because the toll plaza is part of the

turnpike. A driver has one option only after passing through the toll plaza, and that is to re-

enter the main flow of traffic on the toll road. By contrast, ordinarily an “exit” leads the

driver off of the toll road altogether and onto some other highway or street.

       On the other hand, our holding in Manjarrez seems to bind us to the position that

                                              -5-
entering the toll booth area is an “exit” from the toll road. And it does involve leaving the

flow of traffic, so calling it an “exit” is not unreasonable, even though entering the toll plaza

is different from the most common understanding of an exit from a controlled access

highway.

       When the focus is instead on whether there is a lane change involved in entering the

toll area, again we confront something of a dilemma. The district judge found that there was

no lane change because, as we understand his order, no lane marker is crossed. This view

is easy to understand and has superficial validity, at least, but for one fact: The record shows

that the right lane divides at the entry to the toll plaza. A driver with a pike pass can continue

on the same path at the same speed, bypassing the toll booth area. A driver not having a pike

pass must enter the toll booth area and stop at one of the booths to pay the toll. The common,

everyday understanding of a “lane” does not include a branching point offering two

alternative paths like this. And the evidence showed that the speed limit on the turnpike

proper is 75 miles per hour, whereas upon entering the access lanes to the toll plaza the limit

immediately drops to 45 miles per hour. III R. at 73.

       We conclude, however, that these complications are immaterial in the end because our

disposition is controlled by our prior opinion in Manjarrez. Our reading of Manjarrez differs

from that of the district judge, at least as we understand his reading from his order in this

case. The district judge seems to have viewed Manjarrez as holding that the driver in that

case had exited the turnpike even though the driver had not changed lanes. But the trial

judge in Manjarrez had held that entering the toll plaza was a lane change, and we said,

                                               -6-
“[w]e agree,” before adding that “a signal is required when exiting the interstate.” 348 F.3d

885. Thus, we read the case as holding that a signal was required both because the driver had

changed lanes and because the driver had exited the roadway.

       We have considered defendant’s argument that there is an inadequate basis for

concluding that the two turnpikes should be governed by the same rule. It is true that our

opinion in Manjarrez does not reveal whether a lane marker was crossed in entering the toll

booth area of the Turner Turnpike. But even if there were a lane marker crossed there, in

contrast to this case, that case held that there was both a lane change and an exit involved in

entering the toll plaza. So, even accepting as not clearly erroneous the district judge’s

finding that there was no lane change here, we are still be bound by the holding in Manjarrez

that there was an exit requiring a signal.

       The judgment of the district court is therefore affirmed.

                                                          Entered for the Court

                                                          William J. Holloway, Jr.
                                                          Circuit Judge




                                              -7-
05-5164 - United States v. Richardson

LUCERO, joined by HENRY, Circuit Judges, concurring:

       I agree with my respected colleagues that the language of United States v. Manjarrez,

348 F.3d 881 (10th Cir. 2003), controls this case, and I am compelled to join the majority

opinion. I write separately to make an observation about our decision in Manjarrez.

       Although Manjarrez violated 47 Okla. Stat. tit. 11, § 309(1) when he failed to signal

before changing lanes as he approached a toll plaza, our opinion in that case appears to have

used broader language than the facts necessitated. In Manjarrez we stated that under

Oklahoma law, “a signal is required when exiting the interstate” and approaching a toll plaza.

Id. at 885.

       In this case the district court found that Richardson remained in the same lane as he

approached the toll plaza on the Will Rogers Turnpike. As the right lane of the turnpike

splits off to the right, thus “exiting” to form five toll lanes, the record suggests that a driver

proceeding in the right lane of travel may pass through the toll booths without the necessity

of changing lanes. Under these circumstances, our holding in Manjarrez leads to what

appears to be a bizarre result – technically, Richardson may have “exited” the Will Rogers

Turnpike to pay the required toll, but at no point did he change lanes in the process. Under

these circumstances, a signal on his part in either direction would have misled other travelers

on the turnpike into believing that he was going to change lanes, when in fact he did not

intend to do so. On the other hand, he did technically exit the freeway so as to be ensnared

by the express language of Manjarrez, which is why I refer to the result as bizarre. The

Oklahoma Legislature may want to address this odd situation.
       Absent en banc reconsideration of the language of Manjarrez, I am required to agree

with my majority colleagues. But, Manjarrez does appear to provide a basis for the ticketing

of almost any vehicle that passes through the cash toll booths on either the Will Rogers or

Turner Turnpikes, even when those vehicles do not change lanes in the process.




                                            -2-
