                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 2, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,
              Plaintiff–Appellee,                        No. 09-3151
 v.                                            (D.C. No.5:08-CR-40055-JAR-1)
 FELIPE J. PERALES,                                        (D. Kan.)
              Defendant–Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      In June of 2008, highway patrol officers pulled over the Appellant, Felipe

Perales, for violation of Kan. Stat. Ann. § 8-1522(a) 1 after his Toyota Echo


       *
        This order and judgment is not binding precedent, except under the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.
       1
        Section 8-1522(a) states that “[a] vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be moved from such lane
                                                                       (continued...)
momentarily crossed the fog line and then weaved within its lane of travel. Mr.

Perales was subsequently arrested and charged with one count of possession of

methamphetamine with intent to distribute, pursuant to 21 U.S.C. § 841, after

police discovered methamphetamine in his vehicle. Prior to the trial, Mr. Perales

filed a motion to suppress the evidence obtained as a result of this search. Mr.

Perales argued that briefly drifting over the fog line once, which Mr. Perales

maintains was caused by wind, did not give police reasonable suspicion he had

committed a traffic infraction as required by the Fourth Amendment.

      In considering the motion, the district court found there was “no credible

evidence that it was windy,” but, if there was wind, the size of the vehicle, the

straightness of the road, and the fact that Mr. Perales was driving under the speed

limit would make it easier to control the vehicle. (Doc. 28 at 7.) Additionally, the

court found “half the width of the vehicle” crossed the fog line and “the vehicle

continued to weave within the traffic lane after drifting across the fog line.” (Id.)

Based on these facts, the district court determined that the stop did not violate Mr.

Perales’s Fourth Amendment rights, concluding that the troopers “had at least

reasonable suspicion that defendant was impaired, if not probable cause that he

had violated Kan. Stat. Ann. § 8-1522.” (Id.) Mr. Perales now appeals the district



      1
       (...continued)
until the driver has first ascertained that such movement can be made with
safety.”

                                          -2-
court’s ruling. In reviewing a district court’s denial of a motion to suppress, we

“consider the evidence in the light most favorable to the district court’s ruling”

and accept the district court’s factual findings and “its determination of witness

credibility, unless they are clearly erroneous.” United States v. Alvarado, 430

F.3d 1305, 1308 (10th Cir. 2005) (internal quotation marks omitted). We review

the district court’s legal conclusions de novo. See id.

      After a careful review of the briefs and the record on appeal, we conclude

the district court did not err in denying Mr. Perales’s motion. It does appear the

district court may have erred in finding the videotape of the traffic stop contained

no evidence of wind; however, we believe the court’s other factual findings,

including the degree of the vehicle’s drift, its continued weaving, and the

condition of the road, provide ample support for the court’s ultimate legal

conclusion that the troopers had “at least reasonable suspicion that [Mr. Perales]

was impaired.” (Doc. 28 at 7.) See Alvarado, 430 F.3d at 1308 (stating “a court

must analyze objectively all the surrounding facts and circumstances to determine

whether the officer had reasonable suspicion that a violation of the statute had

occurred”) (internal quotation marks omitted). Accordingly, and for substantially

the same reasons set forth in the district court’s order, we AFFIRM.

                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge

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