                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 6, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                         No. 10-5090
 v.                                            (D.C. No. 4:10-CR-00005-JHP-1)
                                                       (N.D. of Okla.)
 JUAN GONZALEZ-GUYTAN,

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **


      Juan Gonzalez-Guytan was convicted of possession with intent to distribute

marijuana and conspiracy to commit the same. A law enforcement officer had

stopped Gonzalez-Guytan after observing his failure to yield to an emergency

vehicle while driving. Evidence uncovered during the traffic stop was presented

at his trial. On appeal, he challenges the district court’s denial of his motion to


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
suppress evidence from the traffic stop and argues the officer who stopped his

vehicle lacked probable cause.

      After a careful review of the record, we conclude the district court properly

denied the motion to suppress. Gonzalez-Guytan failed to yield and immediately

pull over after an officer driving behind him activated his emergency lights and

siren, as required by Oklahoma law. The traffic stop was valid based upon this

observed traffic violation. Having jurisdiction under 28 U.S.C. § 1291, we

AFFIRM.

                                  I. Background

      Based on a tip from a confidential informant, the Tulsa County Drug Task

Force identified an apartment as a distribution point for the storage and sale of

large quantities of methamphetamine and marijuana. The informant also told

officers to expect a load of marijuana to be transported in a white van from the

apartment. He identified one of the drug dealers as a Hispanic male.

      During surveillance of the apartment, a blue pickup truck stopped at the

apartment complex, and a Hispanic man entered the apartment. Later, two

Hispanic men left the apartment, with one driving off in a white van and the other

following in a blue pickup.

      The surveillance team decided not to immediately stop the vehicles but

followed them in hopes of gaining additional information. Due to heavy traffic

and a concern they could lose the vehicles, the officers decided to stop the white

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van, which they believed contained contraband marijuana. An officer in a nearby

patrol car pulled into traffic with two vehicles between him and the white van and

blue pickup. The officer activated his vehicle’s emergency lights and siren, and

the two vehicles quickly moved out of the way, leaving only the white van

followed by the blue pickup ahead.

       At that point, the blue pickup did not yield or immediately pull over. The

officer followed for approximately one half-mile before he could drive around the

blue pickup truck and stop the white van. The driver was taken into custody and

a search of the van revealed five bales of marijuana (approximately 500 pounds),

freezer bags, and scales.

       A second officer, following behind the first officer, observed him activate

his vehicle’s lights and siren and noticed the blue pickup did not immediately pull

over. After the blue pickup finally pulled over, the second officer stopped it for

failure to yield to an emergency vehicle. Gonzalez-Guytan was driving the blue

pickup truck. During the stop, he could not produce a driver’s license and stated

he was in the United States illegally. He was taken into custody and a visual

inspection of the vehicle revealed several rolls of vacuum sealing plastic and a

digital scale.

       Gonzalez-Guytan was indicted on one count of possession with intent to

distribute marijuana and one count of conspiracy to commit the same. He filed a

motion to suppress the evidence and statements obtained as a result of the traffic

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stop, arguing the stop was not supported by probable cause or a reasonable

articulable suspicion that a traffic violation had occurred. A magistrate judge

held a hearing on the motion to suppress and issued a report and recommendation,

recommending the motion be denied. After considering Gonzalez-Guytan’s

objections, the district court adopted the report and recommendation.

      A jury found Gonzalez-Guytan guilty on both counts and he was sentenced

to 78 months’ imprisonment. He timely appealed.

                                  II. Discussion

      Gonzalez-Guytan argues the officer who stopped his vehicle lacked

probable cause. We disagree. The traffic stop was valid because the officer

observed Gonzalez-Guytan’s failure to yield to an emergency vehicle that had

activated its emergency lights and siren, as required by Oklahoma law.

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

accept the district court’s factual findings unless clearly erroneous and consider

the evidence in the light most favorable to the government.” United States v.

Harris, 369 F.3d 1157, 1165 (10th Cir. 2004). “However, the ultimate

determination of reasonableness under the Fourth Amendment is a question of law

we review de novo.” Id.

      We assess the legality of a traffic stop under the principles established in

Terry v. Ohio, 392 U.S. 1 (1968). United States v. Polly, 630 F.3d 991, 997 (10th

Cir. 2011). Generally, we conduct two inquiries: (1) whether the traffic stop

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“was justified at its inception,” and (2) whether “the resulting detention was

reasonably related in scope to the circumstances that justified the stop in the first

place.” Id. (quotations omitted). Gonzalez-Guytan only challenges the legality

of the traffic stop, and thus we must examine whether the stop was justified at its

inception.

      “A traffic stop is justified at its inception if an officer has (1) probable

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

suspicion that a particular motorist has violated any of the traffic or equipment

regulations of the jurisdiction.” United States v. Winder, 557 F.3d 1129, 1134

(10th Cir. 2009). “[A]n individual officer’s subjective intentions are irrelevant to

the Fourth Amendment validity of a traffic stop that is justified objectively by

probable cause to believe that a traffic violation has occurred.” City of

Indianapolis v. Edmond, 531 U.S. 32, 45 (2000); see also United States v.

Orduna-Martinez, 561 F.3d 1134, 1137 (10th Cir. 2009) (“The trooper’s

subjective intent or good faith do not affect the reasonableness of the stop.”).

Even if an officer has a subjective motive for a traffic stop, this “will not

‘invalidate[] objectively justifiable behavior under the Fourth Amendment.’”

Polly, 630 F.3d at 997 (quoting Whren v. United States, 517 U.S. 806, 812

(1996)) (alteration in original).

      Oklahoma law provides:




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      Upon the immediate approach of . . . a police vehicle properly and
      lawfully making use of an audible signal or red flashing lights, the
      driver of every other vehicle shall yield the right-of-way and shall
      immediately drive to a position parallel to, and as close as possible
      to, the right-hand edge or curb of the roadway clear of any
      intersection and shall stop and remain in such position until the
      authorized emergency vehicle has passed, except when otherwise
      directed by a police officer.
O KLA . S TAT . A NN . tit. 47, § 11-405. Under Oklahoma law, if an officer activates

his vehicle’s emergency lights and siren, but a driver fails to yield and

immediately pull over to the right, the driver has committed a traffic violation.

      Gonzalez-Guytan claims his traffic stop was unjustified and unreasonable

under the Fourth Amendment because the officer lacked probable cause to stop

him based on a violation of § 11-405. He contends a driver must have a

reasonable opportunity to (1) recognize an emergency vehicle behind him has

activated its lights and siren, and (2) check the adjacent lane to determine if it is

safe to yield and pull over. He notes the officer who stopped him wrote in his

report that Gonzalez-Guytan failed to yield but did not state how much time

passed between the activation of the lights and siren and when Gonzalez-Guytan

finally pulled over. He also directs us to a statement in a report by a third officer

present at the scene—in addition to the first officer who stopped the white van

and the second who stopped Gonzalez-Guytan—that “after several moments” of

activating the lights and siren, Gonzalez-Guytan pulled over. See Aplt’s Br. at

11. Gonzalez-Guytan claims the timing of the events demonstrates he was unable



                                          -6-
to both recognize an officer had activated his lights and siren and then pull over,

and thus he did not violate Oklahoma law.

      We are unpersuaded. Gonzalez-Guytan ignores the testimony from the

suppression hearing of two other officers involved in the pursuit. These two

officers—one who stopped the white van and the other who stopped Gonzalez-

Guytan—both testified Gonzalez-Guytan did not immediately pull over and

traveled for approximately one half-mile after the officer activated his vehicle’s

emergency lights and siren before stopping.

      The magistrate judge, in the report and recommendation, considered the

evidence from the officers’ reports and their testimony at the suppression hearing.

While not making an explicit finding, the magistrate judge determined the officer

conducting the traffic stop had probable cause to believe Gonzalez-Guytan

violated § 11-405. Implicit to this ruling is the factual finding that Gonzalez-

Guytan failed to immediately yield and pull over after the officer activated his

vehicle’s emergency lights and siren. Gonzalez-Guytan does not argue this

factual finding is clearly erroneous, nor do we find a basis in the record for such

an argument. The magistrate judge obviously credited the two officers’ testimony

that Gonzalez-Guytan failed to immediately pull over and traveled for one half-

mile before finally stopping, and we see no basis to second-guess that conclusion.

      The officer’s report that Gonzalez-Guytan cites—stating he did not pull

over for “several moments”—does not undermine the magistrate judge’s factual

                                         -7-
finding. Even if it may be unclear what amount of time or distance corresponds

to “several moments,” it is clear from the officers’ testimony that Gonzalez-

Guytan failed to yield and immediately pull over in those several moments. In

addition, the two cars initially between the pursuing officer and Gonzalez-Guytan

immediately pulled over upon the officer’s activation of his vehicle’s lights and

siren. This both highlights Gonzalez-Guytan’s failure to do so as he continued

driving for one half-mile and further supports the factual finding that he did not

immediately yield and pull over.

       Gonzalez-Guytan failed to immediately yield and pull over after the officer

activated his vehicle’s emergency lights and siren—a violation of Oklahoma law. 1

He has made no argument this factual finding is clearly erroneous. An officer

observed this traffic violation and initiated a valid traffic stop. See Winder, 557

F.3d at 1135 (“Our precedents leave no room to doubt the validity of a traffic stop

based on an observed traffic violation.”). Therefore, the district court did not err

when it denied Gonzalez-Guytan’s motion to suppress the evidence obtained from

the traffic stop.




       1
          The officer activated his vehicle’s emergency lights and siren in order to
initiate a traffic stop of the white van. The magistrate judge determined the stop
was justified because the officers had a reasonable articulable suspicion the driver
of the white van was involved in criminal activity. If the officer had activated his
vehicle’s emergency lights and siren without this reasonable suspicion, our
analysis regarding Gonzalez-Guytan’s failure to yield might differ.

                                         -8-
                        III. Conclusion

For the foregoing reasons, we AFFIRM Gonzalez-Guytan’s conviction.

                                          Entered for the Court

                                          Timothy M. Tymkovich
                                          Circuit Judge




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