                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                February 10, 2009
                            FOR THE TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 07-3105
                                                (D.C. No. 05-CR-40154-JAR)
    SERGIO PULIDO-VASQUEZ,                                (D. Kan.)
    also known as Obdulio
    Rodriguez-Mendieta,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BALDOCK, BRORBY, and EBEL, Circuit Judges.



         Defendant Sergio Pulido-Vasquez conditionally pleaded guilty to

possession of methamphetamine with the intent to distribute, in violation of

21 U.S.C. § 841(a)(1). He reserved the right to appeal the district court’s denial




*
       After examining the briefs and 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(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
of his motion to suppress evidence found in a search of the vehicle in which he

was a passenger. Mr. Pulido-Vasquez now appeals that denial. We affirm.

                               I. BACKGROUND

      At about 11 p.m. on November 20, 2005, Kansas Highway Patrol Trooper

Clint Epperly, a drug-interdiction trooper, noticed a Ford Explorer with

Minnesota license plates traveling northbound on I-35. Following the vehicle,

Trooper Epperly drove in the left lane while the vehicle was in the right lane, then

pulled into the right lane directly behind it. Trooper Epperly saw the Explorer

abruptly swerve across the fog line and drive about two seconds on the shoulder

of the road, for no apparent weather-, road-, or traffic-related reason. Trooper

Epperly stopped the vehicle.

      As he approached the Explorer, Trooper Epperly noted there was only one

key on the key ring and no luggage in the vehicle. He requested and received

identification from the driver, Jonathan Medina (who produced a California

driver’s license), and the passenger, Defendant Pulido-Vasquez (who produced a

Mexican identification card). Speaking a combination of English and Spanish,

Trooper Epperly questioned defendants about their travel plans. They told him

that they were returning to Minnesota after taking Mr. Pulido-Vasquez’s mother

to visit his sister. Trooper Epperly also learned that the Explorer was owned by a

third man, who lived in Minnesota.




                                        -2-
      Trooper Epperly asked Mr. Medina to accompany him to his cruiser so that

he could issue him a warning. While Mr. Pulido-Vasquez remained in the

Explorer, Trooper Epperly asked Mr. Medina additional questions. Mr. Medina’s

answers indicated that he had not known Mr. Pulido-Vasquez for a long time

and knew only his nickname, not his given name or surname. Mr. Medina said

that they had dropped Mr. Pulido-Vasquez’s mother off at the home of

Mr. Pulido-Vasquez’s uncle in Wichita, Kansas.

      Leaving Mr. Medina in the cruiser, Trooper Epperly then returned to the

Explorer to speak to Mr. Pulido-Vasquez. Mr. Pulido-Vasquez repeated that they

had just dropped his mother off in Wichita, but he related that he did not have an

uncle in Wichita. His only relatives there were his sister and brother-in-law.

      After speaking to Mr. Pulido-Vasquez, Trooper Epperly returned to his

cruiser, gave back Mr. Medina’s documentation, explained that he was giving

Mr. Medina a warning, and told Mr. Medina he was free to go. He then asked

Mr. Medina and Mr. Pulido-Vasquez for permission to search the vehicle for

drugs. Both men consented.

      On Trooper Epperly’s instructions, both men stood in front of the Explorer

while he searched it. In the floor of the rear cargo area, Trooper Epperly

discovered a concealed compartment that he recognized as an after-market feature

that is frequently used to transport drugs. At this point, Trooper Epperly placed

both Mr. Medina and Mr. Pulido-Vasquez under arrest. When he brought his

                                        -3-
drug-sniffing dog to the Explorer, the dog alerted and indicated to the rear floor

of the vehicle. The hidden compartment contained approximately five kilograms

of methamphetamine (along with food items, such as garlic salt and cloves, which

can be used to mask the odor of illegal substances).

      Both men were charged with possession with intent to distribute the

methamphetamine that was located in the compartment. Mr. Pulido-Vasquez filed

a motion to suppress evidence of the drugs. After an evidentiary hearing, the

district court denied the motion. Mr. Pulido-Vasquez then entered a conditional

plea of guilty, reserving his right to appeal matters relating to the denial of the

suppression motion.

                                 II. DISCUSSION

      When reviewing a denial of a motion to suppress, “we review the court’s

factual findings for clear error and view the evidence in the light most favorable

to the government.” United States v. Worthon, 520 F.3d 1173, 1178 (10th Cir.),

cert. denied, 129 S. Ct. 332 (2008). Clear error exists where “a finding [is] more

than possibly or even probably wrong; the error must be pellucid to any objective

observer.” United States v. Cardenas-Alatorre, 485 F.3d 1111, 1119 (10th Cir.),

cert. denied, 128 S. Ct. 417 (2007) (quoting Watson v. United States, 485 F.3d

1100, 1108 (10th Cir. 2007)). The ultimate question of the reasonableness of

a search or seizure under the Fourth Amendment is reviewed de novo. Worthon,




                                          -4-
520 F.3d at 1178. Any credibility determinations are within the province of the

district court. Id.

       When we review the constitutionality of a traffic stop under the Fourth

Amendment, we engage in a two-step inquiry. United States v. Zabalza, 346 F.3d

1255, 1258 (10th Cir. 2003). First, we determine if the stop of the vehicle was

justified at its inception. Id. Second, we consider whether the officer’s actions

were “reasonably related in scope to the circumstances that first justified the

interference.” Id. (quotation marks and citation omitted).

                           1. The Initial Stop of the Vehicle

       “When evaluating the reasonableness of the initial stop, ‘[o]ur sole inquiry

is whether this particular officer had reasonable suspicion that this particular

motorist violated any one of the multitude of applicable traffic and equipment

regulations of the jurisdiction.’” Id. (quoting United States v. Botero-Ospina,

71 F.3d 783, 787 (10th Cir. 1995) (en banc)) (alteration in original; internal

quotation marks omitted).

       Mr. Pulido-Vasquez challenges the initial stop in two respects. He

raises (1) a legal claim that briefly going over the fog line is not a violation of

Kan. Stat. Ann. § 8-1522(a), which states that on any road with two or more lanes

of traffic, “[a] vehicle shall be driven as nearly as practicable entirely within a

single lane and shall not be moved from such lane until the driver has first




                                           -5-
ascertained that such movement can be made with safety,” and (2) a factual claim

that Trooper Epperly caused the vehicle to go over the fog line.

      With regard to the first claim, we have previously rejected the argument

that a single instance of going over the fog line cannot be a violation of the

Kansas statute. E.g., United States v. Cline, 349 F.3d 1276, 1287 (10th Cir.

2003). “Rather, the particular facts and circumstances of each case determine the

result.” Id. Here, the district court credited Trooper Epperly’s testimony that

there were no external factors to account for the Explorer’s sudden swerve over

the fog line.

      The factual situation of the initial stop resembles instances in which we

have found a violation of the Kansas statute or similar laws of other states. In

Cline, we determined that a one-time swerve onto the shoulder of the road could

give rise to an articulable suspicion of a section 8-1522(a) violation. Id.

See also United States v. Alvarado, 430 F.3d 1305, 1309 (10th Cir. 2005) (“Under

the particular facts and circumstances of this case, where there is an utter absence

of any weather conditions, road features, or other circumstances that could have

interfered with [the driver’s] ability to keep his vehicle in a single lane,” the

trooper “had a reasonable articulable suspicion that [the driver], by crossing one

foot over the fog line, had violated [a Utah statute similar to Kan. Stat. Ann.

§ 8-1522].”); Zabalza, 346 F.3d at 1258 (finding a stop reasonable after a vehicle

crossed the center line twice); United States v. Ozbirn, 189 F.3d 1194, 1198-99

                                          -6-
(10th Cir. 1999) (finding probable cause to stop a vehicle for crossing the fog line

twice where weather, road conditions, and officer conduct would not have

contributed to such an action). The district court did not err in determining that

Trooper Epperly had a reasonable suspicion that the driver of the vehicle had

violated Kansas law.

      Furthermore, we find no clear error in the district court’s determination that

there was “not [] convincing evidence that Trooper Epperly caused the traffic

infraction.” R., Vol. I, Doc. 31, at 7 (Mem. & Order Denying Def’s Mot. to

Suppress, dated June 26, 2006). In the district court’s analysis, there was no

evidence, aside from Mr. Pulido-Vasquez’s “conclusory assertion” at the

evidentiary hearing, that Trooper Epperly was following the vehicle closely.

Id. at 7-8. We will not disturb this factual determination. Accordingly, we

conclude that the initial stop of the vehicle was justified at its inception.

                             2. The Search of the Vehicle

      Once an officer has completed a traffic stop, he must allow the driver to

continue on his way without further questioning so long as the driver has

provided a valid license and proof of his right to operate the vehicle. Zabalza,

346 F.3d at 1259. “However, this general rule is subject to a significant

exception permitting an officer to engage in further questioning unrelated to the

initial stop if he has probable cause, the consent of the suspect, or, at a minimum,

a reasonable suspicion of criminal activity.” Ozbirn, 189 F.3d at 1199.

                                           -7-
      The issue of voluntary consent at the conclusion of a traffic stop requires a

“fact-laden inquiry depending heavily on the credibility of the witnesses and the

weight to be given the evidence, together with the inferences, deductions and

conclusions to be drawn from the evidence.” Cardenas-Alatorre, 485 F.3d

at 1118 (quotation marks omitted). Here, Mr. Pulido-Vasquez and Mr. Medina

both expressed consent for Trooper Epperly to search the vehicle.

      Mr. Pulido-Vasquez, however, asserts that a language barrier nullifies any

consent given to search the vehicle. A “working knowledge” of the English

language is all that is required for an encounter to be consensual. United States v.

Zubia-Melendez, 263 F.3d 1155, 1163 (10th Cir. 2001). The requisite “working

knowledge” exists if the individual has “sufficient familiarity with the English

language to understand and respond” to the officer’s questions. Id.

      At the suppression hearing, Trooper Epperly testified that, based on his

experience, he believed that neither man was having fundamental difficulties

comprehending him because they made appropriate responses to his questions and

did not say they didn’t understand. The district court found this testimony

credible. After our review of the record, including the videotape of the stop of

the vehicle, we find no clear error in the district court’s factual determination that

Mr. Pulido-Vasquez had sufficient familiarity with the English language to

consent to the search.




                                         -8-
      Likewise, we see no merit to the argument that Mr. Pulido-Vasquez’s

consent was coerced. Nothing in the record demonstrates that

Mr. Pulido-Vasquez had an objectively reasonable belief that he was not free to

leave or disregard Trooper Epperly’s search request. Among other indicia of

voluntary consent, Mr. Pulido-Vasquez confidently responded, “No problem”

when Trooper Epperly asked him for permission to search the vehicle.

R., Vol. II, at 24. See, e.g., United States v. Espinosa, 782 F.2d 888, 892

(10th Cir. 1986) (finding voluntary consent where vehicle occupant said

“No problem” to the request to search and watched the search without objection).

We see no reason to overturn the district court’s conclusion that the “subsequent

search of the car [was] part and parcel of a consensual encounter.”

Cardenas-Alatorre, 485 F.3d at 1120.

      Standing alone, Mr. Pulido-Vasquez’s consent is sufficient for us to

determine that the search was legal. See id. at 1118 (“If, at the conclusion of a

traffic stop a driver voluntarily consents to further questioning, no seizure takes

place and ‘the Fourth Amendment’s strictures are not implicated.’”). There is,

however, an alternative basis for that conclusion—a reasonable suspicion of

unlawful activity. “A variety of factors may contribute to the formation of an

objectively reasonable suspicion of illegal activity. Among those factors . . . are

having no proof of ownership of the vehicle, having no proof of authority to




                                         -9-
operate the vehicle, and inconsistent statements about destination.” United States

v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998).

      Notwithstanding any misunderstanding and ambiguity attributable to

language difficulties, Trooper Epperly was presented with two individuals with

different stories—one claiming that he dropped off Mr. Pulido-Vasquez’s mother

with his sister at her apartment and the other claiming that Mr. Pulido-Vasquez’s

mother was left with his uncle at his house. Other circumstances apparent to

Trooper Epperly included the lack of luggage (even though the men claimed to be

taking an overnight trip), the absence of information on permission to drive the

Explorer, Mr. Medina’s failure to state Mr. Pulido-Vasquez’s full name, and a

key ring with only one key on it (which the officer believed could be indicative

of a vehicle used to transport drugs). Taken together, these factors could raise

an experienced officer’s reasonable suspicion that the men were involved in

criminal activity.




                                        -10-
                              III. CONCLUSION

      Under our precedents, Trooper Epperly’s initial stop of the Explorer for

violation of Kan. Stat. Ann. § 8-1522(a) was lawful, as was the subsequent search

of the vehicle. The district court correctly denied Mr. Pulido-Vasquez’s motion

to suppress. AFFIRMED.

                                     Entered for the Court


                                     David M. Ebel
                                     Circuit Judge




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