                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAY 22 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 99-4189
v.                                                   (District of Utah)
                                                  (D.C. No. 97-CR-379-1)
GERARDO VIZCARRA,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BALDOCK, McWILLIAMS, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel 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). Accordingly, this

court entered an order on May 5, 2000, granting appellant-defendant Gerardo

Vizcarra’s unopposed motion to submit this case on the briefs 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       This order and judgment is not binding precedent, except under the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. 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.
      Vizcarra entered a conditional guilty plea to a single count of possession of

cocaine with intent to distribute in violation of 21 U.S.C. § 841(a). On appeal,

Vizcarra asserts that the district court erred in denying his motion to suppress.

This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.

      The facts necessary to resolve this appeal are limited. Vizcarra’s arrest and

ultimate guilty plea arose out of a traffic stop in central Utah. Utah Highway

Patrol Officer Ryan Bauer was patrolling Interstate 15 on November 18, 1997,

when he noticed a Chevrolet Yukon that appeared to have a cracked windshield.

Officer Bauer drove alongside the Yukon and noticed that the crack originated on

the driver’s side of the vehicle and extended beyond the halfway point of the

windshield. Believing the operation of the vehicle with the cracked windshield

violated Utah law, Officer Bauer stopped the Yukon.

      Officer Bauer approached the Yukon from the passenger side. When he

reached the side of the Yukon, he could see that the crack extended completely

across the windshield. Both the driver of the vehicle, Vizcarra, and his passenger,

Manuel Varelas, appeared extremely nervous. Officer Bauer asked Vizcarra for

his driver’s licence and the vehicle registration and explained that he had stopped

the Yukon because of the cracked windshield. After receiving the registration,

Officer Bauer returned to his patrol car to check the registration and driver’s

license and to issue a warning for the windshield.


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      After completing the computer checks, Officer Bauer returned to the Yukon

and asked Vizcarra to exit the vehicle so that he could check the VIN number.

After checking the VIN number and federal sticker number, Officer Bauer

informed Vizcarra that everything appeared to be okay and returned Vizcarra’s

driver’s licence and registration, along with a copy of the warning. At that point,

Officer Bauer told Vizcarra that he was free to go and to have a safe trip. As

Vizcarra started to reenter his vehicle, Officer Bauer asked him if he would mind

answering a few additional questions. Vizcarra responded that he did not mind.

Officer Bauer testified that while responding to questions about travel plans,

Vizcarra appeared nervous and his answers were vague. Officer Bauer then asked

Vizcarra if he could search the Yukon. Vizcarra responded that “he didn’t care.”

Officer Bauer then explained to Vizcarra that it was up to him whether to give

permission to search the Yukon and reminded Vizcarra that he had been given

permission to leave. Vizcarra again replied that he did not care if Officer Bauer

searched the Yukon.

      Prior to beginning his search of the Yukon, Officer Bauer asked if he could,

for safety purposes, pat down Vizcarra prior to the search. Vizcarra said a pat-

down search was fine and raised his arms. During the pat-down search, Officer

Bauer found a small packet of cocaine. Vizcarra was then placed under arrest.




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During the subsequent search of the Yukon, Officer Bauer found a large brick of

cocaine.

      Prior to trial, Vizcarra filed a motion to suppress the evidence found as a

result of the pat-down and vehicle searches, arguing, inter alia, that the initial

stop of the Yukon was not legally justified. In particular, Vizcarra argued that

Officer Bauer could not have possibly acquired a clear enough view of the

windshield to conclude that the crack violated Utah law. In rejecting Vizcarra’s

suppression motion, the district court first noted that Utah law makes it a crime to

drive a vehicle with a seriously cracked windshield on Utah roads. 1 The district

court further found as a matter of fact that when Officer Bauer pulled alongside

the Yukon in his patrol car, “he could see that the front windshield . . . was

cracked. The crack ran across the lower part of the windshield in an acute area

and was over 24 inches in length.” In light of this finding, the district court




      1
        See Utah Admin. Code R714-158-10E (mandating rejection of vehicle
during safety inspection if the vehicle has “[a]ny crack or cracks extending the
full length of the windshield either vertically or horizontally”, “[a]ny crack or
cracks having a cumulative total of 24 inches or more,” or “[d]amage other than
minor pitting in the acute area” of the windshield”); Utah Code Ann. § 41-6-117
(making it a misdemeanor to drive any vehicle that does not comply with Utah
safety rules and regulations); see id. § 53-8-209 (empowering all peace officers to
stop any vehicle upon “reasonable cause” to believe the vehicle is not in
compliance with Utah safety rules and regulations).

                                          -4-
concluded that Officer Bauer had probable cause 2 to believe that a traffic

violation was occurring.

      Vizcarra’s argument on appeal is exceedingly narrow. He concedes that the

Yukon’s windshield violated pertinent Utah law and regulations. Nevertheless, he

argues that the district court committed clear error when it found that Officer

Bauer observed that the crack exceeded twenty-four inches before stopping the

Yukon. Thus, according to Vizcarra, the stop of the Yukon was not supported by

probable cause.

      In reviewing the denial of a motion to suppress, this court reviews the

record in the light most favorable to the government and upholds the district

court’s factual findings unless clearly erroneous. United States v. Hunnicutt, 135



      2
        As noted by both the district court and the parties on appeal, there appears
to be some inconsistency in the case law as to whether a stop of a vehicle in these
circumstances must be supported by probable cause or mere reasonable suspicion.
Compare Ornelas v. United States, 517 U.S. 681, 693 (1996) (“An investigatory
stop is permissible under the Fourth Amendment if supported by reasonable
suspicion . . . .”) and United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.
1995) (en banc) (“[A] traffic stop is valid under the Fourth Amendment if the
stop is based on an observed traffic violation or if the officer has reasonable
articulable suspicion that a traffic or equipment violation has or is occurring.”)
with Whren v. United States, 517 U.S. 806, 810 (1996) (“An automobile stop is []
subject to the constitutional imperative that it not be ‘unreasonable’ under the
circumstances. As a general matter, the decision to stop an automobile is
reasonable where police have probable cause to believe that a traffic violation has
occurred.”). Because, as set out more fully below, this court affirms the district
court’s conclusion that this stop was supported by probable cause, we need not
address the apparent inconsistency.

                                         -5-
F.3d 1345, 1348 (10th Cir. 1998). “Judging the credibility of the witnesses,

determining the weight to be given to evidence, and drawing reasonable

inferences and conclusions from the evidence are within the province of the

district court.” Id. Nevertheless, the ultimate question of Fourth Amendment

reasonableness is a question of law this court reviews de novo. See id.

      As noted above, the district court specifically found that from his

perspective, Officer Bauer could see the crack in the windshield and that the

crack extended more than twenty-four inches. This finding is amply supported by

the uncontradicted testimony of Officer Bauer and is, therefore, not clearly

erroneous. See United States v. Mandilakis, 23 F.3d 278, 280 (10th Cir. 1994)

(holding that under that deferential clear-error standard, this court will reverse the

district court only if the district court’s factual finding is without support in the

record or, after reviewing all of the evidence, “this court is left with the definite

and firm conviction that a mistake has been made”). Furthermore, this court has

closely reviewed the entire transcript of Officer Bauer’s testimony, with particular

attention to those passages cited by Vizcarra. That review demonstrates that

despite Vizcarra’s appellate assertions to the contrary, Officer Bauer never

equivocated in his testimony regarding the length of the crack in the windshield.

Although Officer Bauer was less sure as to whether the lengthy crack was in the




                                           -6-
acute area of the windshield, he steadfastly testified that the crack exceeded

twenty-four inches.

      As a final matter, we reject Vizcarra’s assertion that Officer Bauer was

obligated to drive ahead of the Yukon to verify that the crack did, in fact, stretch

across the entirety of the windshield. As noted by the district court, probable

cause exists where the known facts and circumstances are sufficient to warrant a

person of reasonable prudence and belief that a crime is being committed. See

Ornelas v. United States, 517 U.S. 690, 696 (1996). “[I]ndubitable or necessarily

convincing evidence” is not necessary. See Easton v. City of Boulder, 776 F.2d

1441, 1450 (10th Cir. 1985). As he pulled alongside the Yukon, Officer Bauer

saw that a crack extended from the driver’s side post all the way past the half-way

point of the windshield. He further concluded that the crack was at least twenty-

four inches long. Those observations were sufficient, standing alone, to establish

probable cause. This court rejects as both remarkably unwise and completely out

of step with Supreme Court precedent Vizcarra’s assertion that Officer Bauer was

required to take additional, possibly dangerous, steps to conclusively

demonstrate the existence of a safety violation before he was entitled to stop the

Yukon. See Brinegar v. United States, 338 U.S. 160, 175 (1949) (“In dealing

with probable cause, . . . as the very name implies, we deal with probabilities.




                                          -7-
There are not technical; they are the factual and practical considerations of every

day life on which reasonable and prudent [persons], not legal technicians, act.”).

      After a review of the entire record, we conclude that the district court did

not clearly err in finding that Officer Bauer observed a lengthy crack in the

windshield of the Yukon before pulling it over. Accordingly, the district court

did not err in concluding that the stop of the Yukon was supported by probable

cause and, thus, consistent with the Fourth Amendment. The order of the district

court denying Vizcarra’s motion to suppress is hereby AFFIRMED.

                                       ENTERED FOR THE COURT:



                                       Michael R. Murphy
                                       Circuit Judge




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