                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         AUG 17 1998
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,
               Plaintiff - Appellee,                    No. 97-4182
          v.                                      (D.C. No. 96-CR-270-J)
 RODRELL C. CASTINE,                                      (D. Utah)
               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, McKAY, and LUCERO, Circuit Judges.



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

determined unanimously to grant the parties’ request for a decision on the briefs

without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case

is therefore ordered submitted without oral argument.

      Defendant-Appellant, Mr. Rodrell Castine, was found guilty on two counts

of possession of a controlled substance with intent to distribute, and he was

sentenced to 115 months imprisonment. Defendant challenges the validity of his



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
conviction, asserting that the district court improperly denied his motion to

suppress the evidence used to convict him.

      On the morning of November 10, 1996, Utah Highway Patrolman Lance

Bushnell was patrolling Interstate 70 in a marked patrol car. He observed a late-

model white Chevrolet Suburban slow from 70 m.p.h. to 55 m.p.h. as it

approached his patrol car. After observing the vehicle’s deceleration, Officer

Bushnell crossed the center median and drove at speeds approaching 100 m.p.h. to

catch up to the Suburban. As the patrol car approached the Suburban, the officer

observed the vehicle cross over into the emergency lane by a few inches on two

occasions. See R., Vol. II at 7. While being pursued, the Suburban accelerated to

70 m.p.h. and then again reduced its speed to 55 m.p.h. The officer believed

these acts were indicative of a driver who was impaired or falling asleep. He

pulled alongside the Suburban and noticed (through a tinted window) that the

driver had a “withdrawn look.” Id. at 32; see id. at 22-23. Officer Bushnell then

stopped the vehicle to investigate his belief that the driver was either fatigued or

impaired. See id. at 8. As the officer approached the car on foot he noticed an

“overpowering” odor of marijuana. Id. at 10. Defendant, the driver of the

Suburban, was subjected to field sobriety tests, and he was found to be driving

while under the influence of drugs. The Suburban was searched while Defendant

was being subjected to the sobriety tests. This search yielded approximately forty


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pounds of marijuana and two kilograms of cocaine.

      After his arrest, Defendant filed a motion to suppress the drugs recovered

during the search of the Suburban, alleging that the evidence was seized as the

result of a warrantless traffic stop in violation of the Fourth Amendment. The

district court held a hearing on the motion to suppress and then denied the motion.

Defendant appeals his conviction to this court, arguing that the district court’s

denial of his motion to suppress was in error and that he is, therefore, entitled to

have his case remanded. See Appellant’s Br. at 42. He asserts that the search of

the Suburban violated the Fourth Amendment’s prohibition against unreasonable

searches because Officer Bushnell did not have a justifiable basis for initially

stopping the vehicle.

      The district court held that because Officer Bushnell observed Defendant

violating the Utah traffic code the stop was justified under the Supreme Court’s

holding in Whren v. United States, 517 U.S. 806, 819 (1996) (holding that

probable cause to believe the traffic code has been violated renders a stop

reasonable). See Appellant’s Br. App. at 4-8. When a vehicle stop is “based on

an observed traffic violation or . . . [a] reasonable articulable suspicion that a

traffic or equipment violation has occurred or is occurring,” the Fourth

Amendment is not violated. United States v. Botero-Ospina, 71 F.3d 783, 787

(10th Cir. 1995) (en banc), cert. denied, 518 U.S. 1007 (1996). If Officer


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Bushnell had a reasonable suspicion that Defendant violated Title 41 Utah Code

Annotated by not keeping the Suburban within a single lane or by operating a

vehicle while under the influence of drugs or alcohol, then the stop did not offend

Defendant’s Fourth Amendment rights. See id.; Utah Code Ann. §§ 41-6-61(1) &

41-6-44(2)(a).

         Determinations of reasonable suspicion are reviewed de novo. See United

States v. Edwards, 103 F.3d 90, 92 (10th Cir. 1996). We must consider the

totality of the circumstances in which the officer acted and view the evidence in

the light most favorable to the government. See United States v. Sokolow, 490

U.S. 1, 7-8 (1989); United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997);

United States v. Parker, 72 F.3d 1444, 1449 (10th Cir. 1995). This court has held

that driving over a lane divider or drifting into another lane constitutes a violation

of Title 41 Utah Code Annotated section 6-61(1). See Parker, 72 F.3d at 1449;

Botero-Ospina, 71 F.3d at 787-88. But see United States v. Gregory, 79 F.3d 973,

978 (10th Cir. 1996) (holding that an isolated incident of a vehicle drifting into

the emergency lane of a highway is not a violation of this section); State v. Bello,

871 P.2d 584, 587 (Utah Ct. App.) (same), cert. denied, 883 P.2d 1359 (Utah

1994).

         Officer Bushnell testified at the suppression hearing that Defendant twice

crossed a lane divider. The officer also stated that Defendant’s speed variations


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and his “withdrawn look” led the officer to believe that, in light of the officer’s

knowledge and experience with drivers on that section of road at that time of day,

Defendant might be driving while impaired. See R., Vol. II at 8-9, 32. This

testimony is sufficient for us to conclude that the totality of the circumstances

supported the officer’s reasonable suspicion that a violation of the law was

occurring. See United States v. Lee, 73 F.3d 1034, 1036, 1038 (10th Cir. 1996)

(holding that a vehicle straddling the line dividing two driving lanes for 150 feet

provided reasonable suspicion that driver was driving under the influence or

fatigued); United States v. Barbee, 968 F.2d 1026, 1028-29 (10th Cir. 1992).

      We conclude that there was no error in the district court’s decision denying

Defendant’s motion to suppress; and, therefore, we AFFIRM Defendant’s

conviction.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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