            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           October 5, 2009

                                       No. 08-51261                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

JUAN BENITO MONTES-HERNANDEZ

                                                   Defendant-Appellant




                     Appeal from the United States District Court
                          for the Western District of Texas
                               USDC No. 4:08-cr-00169


Before KING, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       This direct criminal appeal is from the denial of a motion to suppress
evidence seized during a traffic stop. Finding no error, we AFFIRM.
       I.      FACTUAL AND PROCEDURAL HISTORY
       A     grand    jury   returned     an    indictment      charging      Juan     Benito
Montes-Hernandez (Montes) with possessing with intent to distribute five
kilograms or more of a mixture containing cocaine and with aiding and abetting.
Montes moved to suppress the 9.5 kilograms of cocaine seized during a traffic

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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stop. The initial traffic stop was made on the basis of a perceived violation of
Tex. Transp. Code § 502.409(a)(7)(B) (Supp. 2008),1 which prohibits displaying
a license plate with “a coating, covering, protective material, or other apparatus
that . . . alters or obscures one-half or more of the name of the state in which the
vehicle is registered.” In his motion to suppress, Montes’s “simple” argument
was that because the frame on the license plate did not obscure at least half of
the name of the issuing state, there was no violation warranting the traffic stop.
       The district court held an evidentiary hearing on the motion to suppress.
Montes conceded that if the stop was valid, he was not contesting the validity of
his consent to search. Texas Department of Public Safety Officer Danny Nunez
(Nunez) testified that on June 27, 2008, he was working at the Interstate 10 and
Interstate 20 interchange in Reeves County. At about 4:00 p.m., Nunez observed
Montes driving eastbound in front of him on Interstate 10. As Nunez neared
Montes’s vehicle, he observed that the license plate was “obstructed.” Nunez
reported that he knew that the plate was not from Texas, but he was unable to
discern where the license plate had been issued because of a black frame around
the edge. Although Nunez approached the car and drove up alongside Montes’s
vehicle, Nunez still could not identify the state of origin. Nunez then effectuated
the traffic stop.
       On cross-examination, Nunez admitted that the only reason for the stop
was the obscured license plate. He admitted that upon closer inspection of the
vehicle and by looking at the pictures taken of the license plate, he could tell
that the plate had been issued in Chihuahua, Mexico. When asked whether he
believed that the state name was “half obscured,” Nunez responded that it was
“obstructed.” Nunez maintained that “if you can’t read the state, the issuing
state, or if it’s half or more obstructed, then it’s against the traffic law.” On


       1
         In 2007, the Texas legislature added the language that the name of the state issuing
the license plate had to be obscured by “one-half or more.”

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redirect examination, Nunez testified that when he was following Montes’s car,
he could read the large letters and numbers on the plate, but he was unable to
read any of the letters in the state name.
        The parties stipulated that the photographs taken of the license plate
accurately reflected the condition of Montes’s plate at the time of his stop.
According to the photographs taken, the letters in the word “Chihuahua” were
approximately 1.7 to 1.9 centimeters tall, and approximately 1 centimeter was
visible below the black frame. Nunez argued therefore that less than half of the
state name was obscured, so under § 502.409 there was no basis for the traffic
stop. He asserted that the court should strictly construe the statute and hold
that because more than half of the state’s name was unobscured, the stop should
not be upheld. The government asserted that the stop was reasonable and that
it would be unreasonable to require an officer to effectuate a stop and precisely
measure the unobstructed portion of the state name before continuing with the
stop.
        The district court noted that the letters were “pretty durn close to halfway”
obstructed and that what was visible could be different while the car was driving
down the interstate. From the bench, the court further found as follows:
              The court finds that the officer had reason to believe that the
        plate – the name on the plate was more than one-half [obscured].

              I find that the photographs taken by the [defendant] do not
        show the vehicle as it was at the time it was driving down the road.
        And because you’re talking about vehicles being [driven] at a speed
        of anywhere from 50 to 80 miles an hour on the highway . . . on the
        interstate, that the officer had reason to believe – and it was a
        reasonable belief – that more than one-half of the name Chihuahua
        was covered.

              I don’t believe that the law should be that it’s one millimeter,
        which is what this – less than two millimeters different. In fact, in
        looking at the plate, you can take the H of Chihuahua and show that


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      . . . the plate cover goes right through the bar of the H of
      Chihuahua.

            The Court finds that . . . the officer[‘s] belie[f] that . . . the
      Defendant was in violation of that statute was an objectively
      reasonable mistake of fact if it was not at one-half.

(emphasis added). The district court then orally discussed precedent involving
the distinction between an officer’s mistake of law and a mistake fact,
recognizing that a mistake of law would not justify a traffic stop. Finally, the
court orally denied the motion to suppress, ruling as follows:

              The Court finds that the trooper knew what the law was, that
      he believed that the license plate did not conform with the law. And
      the Court finds that if he did make a mistake, it was a mistake of
      fact; it was a mistake of fact that was reasonable; it was within one
      to two millimeters . . . ; and that the officer’s mistake of fact did
      provide the objective basis for reasonable suspicion and probable
      cause under the Fourth Amendment and allow him to stop the
      vehicle.

      Thereafter, Montes entered a conditional guilty plea, reserving his right
to challenge the denial of the motion to suppress. The district court sentenced
Montes to serve 70 months in prison and five years of supervised release.
Montes now appeals his conviction.
      II.   ANALYSIS
            A.     Standard of Review
      This Court reviews factual findings made by a district court on a motion
to suppress for clear error and the district court’s ultimate conclusions on Fourth
Amendment issues de novo, viewing the evidence in the light most favorable to
the prevailing party. See United States v. Santiago, 310 F.3d 336, 340 (5th Cir.
2002). “The stopping of a vehicle and detention of its occupants constitutes a
‘seizure’ under the Fourth Amendment.” United States v. Brigham, 382 F.3d
500, 506 (5th Cir. 2004) (en banc). A limited search and seizure is permissible

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under the Fourth Amendment, even in the absence of probable cause, when
“there is a reasonable and articulable suspicion that a person has committed or
is about to commit a crime.” United States v. Jones, 234 F.3d 234, 239 (5th Cir.
2000).
      However, if the error is not preserved by objection before the district court,
it must be reviewed for plain error. To show plain error, the appellant must
show (1) an error (2) that is clear or obvious and (3) that affects his substantial
rights. United States v. Baker, 538 F.3d 324, 332-33 (5th Cir. 2008), cert. denied,
129 S. Ct. 962 (2009). Even if such a showing is made, this Court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
      The legality of a traffic stop is examined under the two-pronged analysis
described in Terry v. Ohio, 392 U.S. 1 (1968). See Brigham, 382 F.3d at 506.
First, the court examines whether the initial official action was justified; second,
the court determines whether the subsequent action was reasonably related in
scope to either the circumstances that justified the stop or to dispelling a
reasonable suspicion that developed during the stop. Id. at 506–07. The “traffic
detention may last as long as is reasonably necessary to effectuate the purpose
of the stop, including the resolution of reasonable suspicion” that emerges during
the stop. Id. at 512. However, “evidence is not to be suppressed under the
exclusionary rule where it is discovered by officers in the course of actions that
are taken in good faith and in the reasonable, though mistaken, belief that they
are authorized.” United States v. Williams, 622 F.2d 830, 840 (5th Cir. 1980) (en
banc); see also United States v. DeLeon-Reyna, 930 F.2d 396, 400–01 (5th Cir.
1991) (en banc). In the instant case, as previously set forth, Montes expressly
conceded during the suppression hearing that he was not contesting the consent
to search. Thus, on appeal, the only issue is whether the initial stop was valid.
            B.     Officer’s Mistake of Law

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      In his brief, Montes first argues that the cocaine discovered during the
traffic stop should be suppressed because it was the result of Nunez’s mistaken
understanding of the law. He maintains that Nunez testified at the hearing that
he believed that a license plate violated state law if the state name was either
unreadable or “half or more obstructed.” (emphasis added). Montes notes,
however, that the language of the statute states that a plate violates state law
if it has a covering that “alters or obscures one-half or more of the name of the
state in which the vehicle is registered.” § 502.409(a)(7)(B) (emphasis added).
Montes maintains that because Nunez used the word “obstructed” in his
definition of the potential offense, rather than the statutory term “obscured,”
Nunez did not know how the pertinent violation was defined under state law.
Montes    also   asserts   that   Nunez’s       definition   established   his   lack   of
understanding of the law because he believed he could effectuate a traffic stop
if the state name was unreadable or the state name was half or more obstructed,
which does not comport with the definition in § 502.409(a)(7)(B).
      Montes did not, however, specifically challenge the validity of his traffic
stop on the ground that the arresting officer stopped him based upon a mistaken
understanding of state traffic law. Instead, he argued solely that the district
court should apply a strict reading of the statute and conclude that if the actual
requirement of one-half of the letters being obscured was not in fact satisfied,
the stop was invalid. Although the court ruled that Nunez did not make a
mistake of law, the district court did not consider the contention that
“obstructed” and “obscured” had different meanings. Thus, as the government
contends, this issue should be reviewed for plain error.
      The legal justification for a traffic stop “must be objectively grounded.”
United States v. Lopez-Valdez, 178 F.3d 282, 288 (5th Cir. 1999) (internal
quotation marks and citations omitted). If the conduct the officer perceives to
constitute a traffic violation is not a violation of state law, there is no objective

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basis for justifying the stop. United States v. Miller, 146 F.3d 274, 279 (5th Cir.
1998).   In Miller, the officer stopped the defendant because the defendant
allowed his turn signal to remain on for a period of time without turning or
changing lanes.    146 F.3d at 277.    This Court held that the officer lacked
probable cause to make the initial stop because a plain reading of the statute did
not support the view that leaving one’s turn signal on without turning was
conduct intended to be covered by the statute. Id. at 278–79. Similarly, in
Lopez-Valdez, 178 F.3d at 288–89, this Court held that a stop was impermissible
because the officer stopped the defendant’s vehicle under the mistaken belief
that a cracked tail-light violated state law despite state court precedent
establishing that officers lacked authority to stop such vehicles.
      Montes has not shown that Nunez’s decision to stop him was the result of
an error in the officer’s understanding of state law. Montes’s contention, that
Nunez’s use of the word “obstructed” rather than “obscured” evinced a lack of
understanding of the law, does not amount to error. The words are substantially
similar in meaning; “obstruct” means “[t]o clog or block” or “[t]o cut off from
sight,” while “obscure” means “[t]o make dim or indistinct” or “[t]o conceal.”
Webster’s II New Riverside University Dictionary 811–12 (1988).            Indeed,
defense counsel himself interchangeably used the terms “obstructed” and
“obscured” both in the motion to suppress and during the suppression hearing
when referring to the frame covering part of the state name on the license plate.
Moreover, Montes’s contention is in direct conflict with the district court’s
finding that “the trooper knew what the law was, that he believed that the
license plate did not conform with the law.” Montes has not shown that Nunez’s
failure to use the precise term provided in the statute establishes his lack of
understanding of the law.
      Additionally, Montes’s challenge to Nunez’s description of the law does not
constitute a “clear or obvious error.” Montes focuses on Nunez’s explanation of

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the statute as a distinction between relating to whether the officer is unable to
read the state name or the name is half or more obstructed. However, Nunez’s
statement could also be read as two different ways of saying the same thing –
that the plate was in violation if he could not read it because it was half
obstructed.
      Even assuming arguendo that Nunez’s description of the statute in
question could constitute a clear error, Montes has not shown that it violated his
substantial rights. See Baker, 538 F.3d at 332–33. Nunez testified that the
reason he could not read the state name on Montes’s license plate was because
it was covered at least partly by the black frame around the plate. He testified
that he could see “the lower half of the letters,” but he could not tell from those
letters the origin of the plate. Thus, even if Nunez was mistaken in his belief
that a mere inability to read an unobscured state name was a ground for
stopping a vehicle, his testimony reflected that he was proceeding under the
theory that the state name was half obscured by the frame around the license
plate, which was a valid legal reason to make the stop. See § 502.409(a)(7)(B).
Thus, Montes has not established that the district court plainly erred in
concluding that Nunez correctly believed he had an adequate legal basis to stop
Montes.
              C.   Objectively Reasonable Suspicion
      Montes also asserts, as he did before the district court, that his motion to
suppress should have been granted because Nunez was operating under a
mistaken factual belief that the letters of the state were more than half
obscured. “For a traffic stop to be justified at its inception, an officer must have
an objectively reasonable suspicion that some sort of illegal activity, such as a
traffic violation, occurred, or is about to occur, before stopping the vehicle.”
United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005). “We have
stated previously that reasonable suspicion exists when the officer can point to

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specific and articulable facts which, taken together with rational inferences from
those facts, reasonably warrant the search and seizure.”           Id.    Further,
“reasonable suspicion need not rise to the level of probable cause.” Id.
      Here, the district court ruled that Nunez’s belief that the issuing state’s
name was at least one-half obscured was reasonable.             We agree.     The
measurement of how much of the state’s name was obscured was so close to one-
half–within a millimeter or two–that the district court was unwilling to
expressly find as a factual matter whether the frame covered one-half of the
state’s name. Also, the district court found that the frame covered the bar of the
“H” in the name “Chihuahua.” Under these circumstances, we conclude that the
officer had an objectively reasonable suspicion that a traffic violation occurred.
      Nonetheless, Montes maintains that stopping his vehicle could not have
been reasonable because the officer’s observations rendered it impossible for the
officer to tell whether Montes had in fact violated the law. He maintains that
if the officer could not tell with certainty that the state name was at least one-
half obscured, any attempt to stop the purported offender would be
unreasonable.    Montes’s argument falls by its own weight.          To have an
objectively reasonable suspicion, an officer does not have to determine that a
suspect has in fact violated the law. Here, the district court found that it was
a very close call regarding whether the frame obscured one-half of the state’s
name. Under these circumstances, we find that the arresting officer had an
objectively reasonable suspicion that a traffic violation had occurred.
       In the alternative, as the district court also found, the officer’s alleged
mistake of fact regarding whether the frame obscured one-half of the issuing
state’s name provided the objective basis for reasonable suspicion. See United
States v. Payne, 534 F.3d 948, 951-52 (8th Cir. 2008) (upholding the traffic stop
based upon the officer’s mistaken belief that the vehicle lacked a front license
plate, in light of conditions making the plate difficult to see); United States v.

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Jenkins, 452 F.3d 207, 212–13 & n.6 (2d Cir. 2006) (upholding a traffic stop
based upon an absence of a license plate, even though the vehicle had an
inconspicuous temporary plate); United States v. Cashman, 216 F.3d 582,
586–87 (7th Cir. 2000) (upholding a traffic stop based upon a “substantial” crack
in the windshield, even though the crack may have “stopped just shy of the
threshold for ‘excessive’ cracking or damage” under state law and concluding
that a passing officer could reasonably conclude that the cracked windshield
violated the law); see also United States v. Winder, 557 F.3d 1129, 1134 (10th
Cir. 2009) (noting in dicta that an officer’s reasonable mistake of fact may
support the necessary probable cause or reasonable suspicion); United States v.
Moody, 240 F. App’x 858, 858–59 (11th Cir. 2007) (finding reasonable suspicion
that defendant’s windows were too darkly tinted, even though extent of tinting
did not in fact constitute a violation).
      For the above reasons, the district court’s judgment is AFFIRMED.




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