                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    February 8, 2017
                                TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellant,
                                                         No. 15-3321
 v.                                           (D.C. No. 2:13-CR-20078-KHV-1)
                                                          (D. Kan.)
 JOSE A. ALEMAN,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, McKAY, and BALDOCK, Circuit Judges.


      Kansas City police pulled over Jose Aleman for running a stop sign. After

obtaining Aleman’s information, the officers discovered an outstanding warrant

for his arrest. During the encounter, the officers obtained permission from

Aleman’s passenger, the owner of the car, to search the vehicle and found a

firearm under the driver’s seat. A federal grand jury subsequently indicted

Aleman for possession of a firearm by a convicted felon, a violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2).


      *
         This order and judgment is not binding precedent except under the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.
      Aleman sought to suppress the evidence and testimony resulting from the

stop, arguing that the officers lacked reasonable suspicion that Aleman had

violated the law prior to the stop, and thus obtained the evidence in violation of

the Fourth Amendment. A magistrate judge heard Aleman’s motion to suppress

and recommended that the district court deny the motion. The district court

conducted a second evidentiary hearing and concluded, like the magistrate judge,

that the traffic stop was properly based on a suspected traffic violation.

      Aleman appealed, and, exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

                                 I. Background

      Kansas City Police Officers Webb and Shepard were on a routine patrol

when they stopped Aleman’s car for running a stop sign and a suspected license

plate violation. 1 At a hearing before the magistrate judge, Officer Webb testified

he first noticed the car “as we were entering the intersection” when it was “past

the stop sign, which is before the sidewalk and curb.” R., Vol. 1 at 60. The

patrol car “slowed because [the officers] didn’t think [Aleman’s] vehicle was

going to stop because it was rolling through the intersection,” and the patrol car


      1
         After the officers witnessed the stop sign violation and made a U-turn to
pursue the car, they noticed the license plate was either obstructed or removed
from the vehicle. But once the officers moved closer to the car, the record
indicates they were able to determine that the car had a valid 60-day license tag.
Accordingly, what the officers initially identified as a license plate violation
would not provide reasonable suspicion for the stop past that point in time.

                                         -2-
“had to almost come to a stop,” though it proceeded through the intersection

before Aleman’s vehicle. Id. at 53. The officers then pursued the car and

initiated the stop.

       After an evidentiary hearing, the magistrate judge found:

              The traffic stop was justified at its inception because the
              officers had reasonable suspicion to believe first that
              Defendant had failed to properly stop at a stop sign, and
              second that the [car] was not displaying a license plate.
              Although Officer Webb testified on cross-examination
              that the [car] was past the stop sign when he first saw it,
              his testimony and the marks he made on a map to show
              the location of the two vehicles vis-à-vis each other
              persuade the Court that the officers’ reasonable
              suspicion that the [car] had not come to a complete stop
              behind the stop sign was supported by ‘objectively
              reasonable’ good faith belief. Officer Webb’s testimony
              that the patrol car slowed because it did not appear
              Defendant was going to stop supports the conclusion
              that the [car] was traveling at such a rate of speed that it
              could not have stopped at the sign.

Id. at 35.

       After receiving the magistrate judge’s recommendation, the district court

held a second evidentiary hearing to clarify the record. On direct examination,

Officer Webb testified that “[the car] passed the stop sign, stopped, and then went

on through at a high rate of speed,” and clarified that the traffic infraction he

witnessed was a “rolling stop past the stop sign,” because Aleman “didn’t come to

a complete stop. And when he did, it was past the stop sign[.]” R., Vol. 2 at

9–10. The court asked Officer Webb if Aleman had stopped, but stopped in the


                                           -3-
wrong place, and he responded, “[s]topped in the wrong place but he didn’t come

to a complete stop past—he just went right on through.” Id. at 11. The court

asked several follow-up questions, including whether Aleman stopped his vehicle,

whether he stopped in the wrong place, and what “stop” meant to the officer. Id.

When the court asked if Aleman “did stop but he stopped in—partly in the

intersection and not a hundred percent where the stop sign was,” Officer Webb

responded, “[y]es, ma’am.” Id.

      After cross-examination, the district court asked Officer Webb to explain

again what he had witnessed, and the officer said that Aleman “rolled through the

intersection. He slowed to make a motion to stop and went through the

intersection.” R., Vol. 2 at 12. The district court again asked for clarification,

because she thought that Officer Webb had previously testified that Aleman had

stopped, and “there’s no such thing as a stop that is not a complete stop. I mean,

a stop means you’re standing still.” Id. at 13. Officer Webb clarified that there is

“no [specific] ordinance for us to write that he just rolled a slowing California

roll,” which he described as “not com[ing] to a complete stop, attempting to stop

or slowing as to make it look like you stopped and continu[ing] through the

intersection”; instead, a “California roll” is covered by the broad wording of the

improper stop ordinance. Id. at 14–15. In contrast, the officers would have cited

Aleman for a stop sign violation if he had blown through the intersection without

attempting to stop at the stop sign at all. Id.

                                           -4-
      After the evidentiary hearing, the district court ultimately agreed with the

magistrate judge’s report and recommendation, concluding that “Officer Webb

had an objectively reasonable belief, based on how fast he saw defendant’s

vehicle traveling, that defendant had not come to a complete stop at the stop

sign.” R., Vol. 1 at 116.

                                   II. Analysis

      Aleman contends the district court clearly erred in finding he ran a stop

sign, and therefore the officers had no lawful basis for the traffic stop.

      A. Reasonable Suspicion

      When reviewing a denial of a motion to suppress, we accept the factual

findings of the district court unless they are clearly erroneous. United States v.

Williams, 271 F.3d 1262, 1266 (10th Cir. 2001). “The credibility of witnesses,

the weight to be given evidence, and the reasonable inferences drawn from the

evidence fall within the province of the district court.” United States v. Long,

176 F.3d 1304, 1307 (10th Cir. 1999). We also consider the evidence in the light

most favorable to the government. United States v. McAlpine, 919 F.2d 1461,

1463 (10th Cir. 1990). We review questions of law de novo, however, including

the ultimate determination of reasonableness under the Fourth Amendment.

Williams, 271 F.3d at 1266.

      A traffic stop is considered a seizure under the Fourth Amendment, so it

must be justified at its inception, when the officer intrudes on the motorist’s

                                         -5-
liberty interest. United States v. Martinez, 512 F.3d 1268, 1272 (10th Cir. 2008).

At its inception, a traffic stop is justified “if the officer has either (1) probable

cause to believe a traffic violation has occurred or (2) a reasonable articulable

suspicion that ‘this particular motorist violated any one of the multitude of

applicable traffic and equipment regulations of the jurisdiction.’” United States v.

Martinez, 512 F.3d 1268, 1272 (10th Cir. 2008) (quoting United States v. Ozbirn,

189 F.3d 1194, 1197–98 (10th Cir. 1999)).

      “Whether reasonable suspicion exists is an objective inquiry determined by

the totality of the circumstances, and an officer’s subjective motivation for the

stop plays no role in ordinary reasonable suspicion Fourth Amendment analysis.”

United States v. Salas, 756 F.3d 1196, 1201 (10th Cir. 2014) (quoting United

States v. Harmon, 742 F.3d 451, 456 (10th Cir. 2014)) (alteration incorporated;

internal quotation marks omitted). In reviewing an investigatory stop for

reasonable suspicion, we consider “the ‘totality of the circumstances’ of each case

to see whether the detaining officer has a ‘particularized and objective basis’ for

suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002)

(quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)); see also United

States v. Neff, 681 F.3d 1134, 1138 (10th Cir. 2012) (applying this standard). “In

the end, reasonable suspicion must meet only a ‘minimum level of objective

justification.’” United States v. Fager, 811 F.3d 381, 386 (10th Cir. 2016), cert.

denied, 137 S. Ct. 293 (2016) (quoting United States v. Garcia, 751 F.3d 1139,

                                           -6-
1143 (10th Cir. 2014)). And reasonable suspicion “need not rise to the level

required for probable cause, and it falls considerably short of satisfying a

preponderance of the evidence standard.” Arvizu, 534 U.S. at 274.

      Under the traffic laws of Wyandotte County, “every driver of a vehicle

approaching a stop sign shall stop . . . at the point nearest the intersecting

roadway where the driver has a view of approaching traffic on the intersecting

roadway before entering it.” Aplt. Br. at 8 (citing Wyandotte County Ordinance

§ 35-374(b)); see also K.S.A. 8-1528 (substantively, though not completely,

identical language). 2

      B. Application

      Aleman contends the district court clearly erred because the testimony of

the officers leaves open the possibility that he stopped at the stop sign before the

officers had a view of the car and then pulled forward to get a better view of the

oncoming traffic. See Aplt. Br. at 27–28. But our inquiry is not whether the facts

presented leave open the possibility of an outcome favorable to the defendant.

Instead, we consider whether the district court’s factual conclusion—which was

unfavorable to the defendant—is clearly erroneous.

      Officer Webb’s testimony provided sufficient evidence that he had an

objectively reasonable belief, based on how fast he observed Aleman’s vehicle

      2
        The government apparently failed to introduce the ordinance into
evidence, and so the only record of the ordinance on appeal is what was
reproduced in Aleman’s opening brief. See Aplt. Br. at 8.

                                          -7-
traveling, that Aleman had not come to a complete stop at the stop sign. Officer

Webb first noticed Aleman’s car when it was just past the stop sign and was

“rolling” through the intersection at a speed fast enough to cause Officer Shepard,

driving the police cruiser, to slow down out of concern that the car was

approaching too quickly to allow the cruiser the right-of-way through the

intersection. Although Officer Webb didn’t see Aleman’s car before the stop

sign, this testimony supports the inference that Aleman was driving too fast to

have stopped at the stop sign.

      As the government notes, stopping past the stop sign and rolling through

the stop sign are not mutually exclusive events. Logically, if a car rolls through a

stop sign but then eventually comes to a complete stop, it will necessarily stop

past the stop sign. In either event, the traffic violation occurs if the motorist did

not properly stop the vehicle at the stop sign. Officer Webb’s testimony supports

the inference that Aleman did not come to a complete stop at the stop sign, and

thus violated the Wyandotte County traffic ordinance.




                                          -8-
      The district court’s order on the motion to suppress is affirmed. 3

                                               Entered for the Court

                                               Timothy M. Tymkovich
                                               Chief Judge




      3
        In a letter submitted to the court pursuant to Fed. R. App. 28(j), the
government calls our attention to the Supreme Court’s decision in Utah v. Strieff,
136 S. Ct. 2056 (2016), which was handed down four days after the government
submitted its brief in this case. The government argues that even if the stop were
improper, the evidence received from Aleman’s vehicle could still be admitted
under the attenuation doctrine. As we hold that the stop was proper, we need not
address this additional argument.


                                         -9-
