                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         NOV 15 2004
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                            No. 04-2032
                                                (D. Ct. No. CR-03-1221-JC)
 RAYMOND ARTHUR MALOUFF,                                (D. N. Mex.)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, HOLLOWAY, and LUCERO, Circuit
Judges.


      Defendant-Appellant Raymond Arthur Malouff pleaded guilty to one count

of possessing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B). Contending that the traffic stop and questioning that led to the

discovery of the narcotics violated his Fourth Amendment rights, Mr. Malouff

filed a motion to suppress, which the District Court denied. We take jurisdiction

under 28 U.S.C. § 1291 and AFFIRM.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
                                I. BACKGROUND

      On January 31, 2003, Mr. Malouff’s Chevrolet Blazer was parked with its

hood up in the parking lot of a convenience store in Farmington, New Mexico.

Due to a recent string of robberies in this high crime area, Officers Hooper and

Briseno were observing the convenience store from a half-block away in an

undercover car. Based upon tips from a confidential source, Officer Hooper knew

this parking lot to be a location where narcotics were often sold.

      Mr. Malouff’s Blazer was parked next to two other vehicles and several

men were standing around. Although none of the men entered the convenience

store, they remained in the parking lot for approximately thirty minutes.

Eventually, a small silver car pulled into the parking lot and a passenger got out.

This passenger walked up to the men standing next to the Blazer, talked with

them briefly, and returned to the silver car. Immediately thereafter, all four

vehicles left the parking lot. Officer Hooper, believing that a drug transaction

occurred, instructed other patrol officers to follow the cars and “to develop

probable cause to stop the vehicle[s].” Officers Hooper and Briseno followed the

Blazer driven by Mr. Malouff.

      Officers Hooper and Briseno followed Mr. Malouff’s Blazer north on

Miller Street. The officers had been following the Blazer for approximately one

mile when it reached the intersection of Miller and Pinion Streets. Miller Street


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has a single lane of traffic going in each direction with a stoplight and left-turn

lane at the intersection with Pinion Street. Miller Street also has a wide safety

lane on the right-hand side that narrows upon reaching the intersection with

Pinion Street. Thus, to continue traveling north, a car must veer slightly to the

right in order to stay out of the left-turn lane.

      The Blazer approached the intersection while the traffic light was red. As

the Blazer slowed, it veered to the right to avoid entering the left-turn lane. The

Blazer, however, crossed over the white line separating the left-turn lane from the

lane traveling north. Mr. Malouff failed to signal this lane change. Officer

Hooper found this to be a violation of N.M. Stat. Ann. § 66-7-325(A), which

prohibits turning without signaling when the turn may affect other traffic.

      Following this lane change, the officers pulled Mr. Malouff over. When

they approached the car, Mr. Malouff was exceptionally nervous. His hands were

shaking violently, he could not pass his insurance information over to the officer

even though he held the insurance card in his hand, and he continually exclaimed

“oh my God.” The officers asked Mr. Malouff to exit his vehicle and took him to

the patrol car.

      While writing the citation for the lane change violation, the officers

questioned Mr. Malouff about the incidents at the convenience store. Mr.

Malouff replied that he had a “major oil blowout” and that he was adding oil to


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his vehicle. The officers asked Mr. Malouff to identify the man in the silver car,

which he did.

      During this questioning, Mr. Malouff remained extremely nervous.

Although the officers asked him to refrain, Mr. Malouff incessantly placed his

hands in his pockets. At this point, Officer Hooper asked Mr. Malouff if he had

any weapons. After replying that he had a knife in his pocket, Mr. Malouff

started to reach for his pocket. The officers restrained him and again asked what

was in his pockets. Mr. Malouff said that he had $2000 in cash. Officer Hooper

retrieved the cash and continued to search the pants pocket until he located the

knife. Then the officers began searching the insides of Mr. Malouff’s other pant

and coat pockets. Finally, Mr. Malouff produced a small flashlight that contained

a hypodermic needle and said “Oh God. I’m going to jail for paraphernalia.”

      Now suspecting that the car contained drugs, the officers asked Mr.

Malouff if he had drugs in the car. When Mr. Malouff replied that he did not, the

officers asked for permission to search the vehicle. In response, Mr. Malouff said

that if they searched the car, they would find narcotics in the console. The

officers then asked if they could remove the drugs from the console. Mr. Malouff

agreed. The officers found methamphetamine, needles, and scales. The entire

stop took under ten minutes.

      The Government indicted Mr. Malouff for violating     21 U.S.C. §§ 841(a)(1)


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and (b)(1)(B). Mr. Malouff then filed a motion to suppress all the evidence

seized from him during the traffic stop, arguing that the stop violated his Fourth

Amendment rights. After briefing and a thorough hearing, the District Court

denied the motion. Mr. Malouff then pleaded guilty, reserving his right to appeal

the District Court’s denial of his motion to suppress. He filed a timely notice of

appeal.

                                 II. DISCUSSION

      On appeal, Mr. Malouff presents five arguments. First, he contends that the

traffic stop was a pretext and therefore unreasonable under the Fourth

Amendment. Second, Mr. Malouff argues that as a factual matter he did not

violate N.M. Stat. Ann. § 66-7-325(A), rendering the traffic stop unreasonable.

Third, he argues that the scope of his detention exceeds the grounds justifying the

initial stop. Fourth, he claims that Officer Hooper’s search for weapons exceeds

the scope of a lawful patdown. Fifth, Mr. Malouff asserts that his consent to the

search of his vehicle was involuntarily given. As we explain below, we disagree.

A.    Standard of Review

      When reviewing a district court’s ruling on a suppression motion, “we

accept the district court’s factual findings absent clear error and review de novo

the district court’s determination of reasonableness under the Fourth

Amendment.”    United States v. Olguin-Rivera   , 168 F.3d 1203, 1204 (10th Cir.


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1999).

B.       Pretext

         Mr. Malouff first argues that the traffic stop for failing to signal a lane

change was unreasonable under the Fourth Amendment because it was merely a

pretext for questioning him about events at the convenience store. Mr. Malouff

claims that Officer Hooper was trying “to develop probable cause to stop” him

because the officer lacked a reasonable and articulable suspicion to detain him

based upon the activities in the convenience store parking lot.

         Mr. Malouff’s argument is foreclosed by clearly established Supreme Court

precedent. An officer’s subjective motivation is irrelevant when considering the

objective reasonableness of a traffic stop under the Fourth Amendment. Whren v.

United States, 517 U.S. 806, 813 (1996); United States v. Cervine, 347 F.3d 865,

870 (10th Cir. 2003).

C.       The Initial Stop

         Next, Mr. Malouff contends that the stop for violating    N.M. Stat. Ann.

§ 66-7-325(A) was constitutionally unreasonable.         In reviewing the

constitutionality of traffic stops under the Fourth Amendment, we conduct a

two-step inquiry. First, we determine whether the officer’s stop was justified at

its inception. Cervine, 347 F.3d at 868. Second, we consider whether the action

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


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Id.

      A traffic stop is justified at its inception if the detaining officer had an

objectively reasonable and articulable suspicion that a traffic violation occurred

before stopping the automobile. Id. at 869. Here, the Government argues that

Officer Hooper had an objectively reasonable and articulable suspicion that Mr.

Malouff violated § 66-7-325(A), which provides: “No person shall so turn any

vehicle without giving an appropriate signal in the manner hereinafter provided in

the event any other traffic may be affected by such movement.” The District

Court found, as a matter of fact, that Officer Hooper’s patrol car was “affected

by” Mr. Malouff’s movement.

      Mr. Malouff contends that the District Court’s factual finding was in error.

We review the District Court’s finding for clear error and reverse “only if the

district court’s finding was without factual support in the record or we are left

with the definite and firm conviction that a mistake has been made.”     United

States v. Cernobyl , 255 F.3d 1215, 1221 (10th Cir. 2001) (internal quotation

omitted). Mr. Malouff argues that the District Court has committed a clear error

because its factual finding is unsupported by any record evidence. Officer

Hooper’s testimony, however, supports the District Court’s determination that his

patrol car was affected by the lack of a signal. Therefore, the District Court’s

determination is supported by the record. Because we are not left with the


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definite and firm conviction that a mistake was made, the District Court’s finding

was not clearly erroneous.

D.     Scope of the Detention

      Mr. Malouff also argues that the officers’ actions after the stop were not

reasonably related to the violation that justified the stop at its inception.

Generally speaking, “[a]n officer conducting a routine traffic stop may request a

driver’s license and vehicle registration, run a computer check, and issue a

citation.” Cervine, 347 F.3d at 868 (internal quotation omitted). After completion

of these activities, an officer may continue to detain a driver “for reasons

unrelated to the initial traffic stop if (1) the officer has an objectively reasonable

and articulable suspicion that illegal activity has occurred or is occurring, or (2) if

the initial detention has become a consensual encounter.” Id. at 868-69

(quotations omitted).

      The Government cites, and Mr. Malouff does not distinguish, United States

v. Oliver, 363 F.3d 1061, 1067-68 (10th Cir. 2004). Oliver holds, as a corollary

to our general rule, that an officer may question a traffic-stop detainee on any

topic without reasonable and articulable suspicion so long as the questioning does

not prolong the stop. Id. We further held that “a less-confined reasonableness

standard is appropriate in this context.” Id. at 1068.

      Here, while the officers were writing the citation and running the computer


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check, they asked Mr. Malouff about the events at the convenience store. The

entire stop took approximately eight to ten minutes. This is well within a

reasonable amount of time to write a citation and run a computer check.

Moreover, Mr. Malouff does not contend that the questioning increased the

amount of time he was detained. As such,     Oliver controls this issue.

Furthermore, given Mr. Malouff’s suspicious conduct at the convenience store,

the officers’ questioning satisfies the “overarching reasonableness standard” set

forth in Oliver . See id.

E.     The Frisk

       Mr. Malouff next argues that the officers frisked him illegally because they

reached into the pocket to get the knife instead of merely patting him down. Mr.

Malouff, however, first told the officers that he had a knife in his pocket and then

he reached for his pocket. Only then did the officers restrain Mr. Malouff and

reach into his pocket.

       Our Circuit has long recognized that, when conducting a Terry stop, an

officer who reasonably believes that a detainee is armed and could gain

immediate control of a weapon may search for the weapon and separate the

detainee from any weapon that is found. United States v. King, 990 F.2d 1552,

1561 (10th Cir. 1993). Mr. Malouff’s statement that he had a knife coupled with

his reach to his pocket gave the officers an objective basis to believe he was


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armed and dangerous; thus, the search of his pockets was justified. Id. (“The

governmental interest in the safety of police officers outweighs the individual’s

Fourth Amendment interest when an officer has an objective basis to believe that

the person being lawfully detained is armed and dangerous.”). While a search

normally involves a patdown prior to reaching into a detainee’s pocket, here Mr.

Malouff told the officers he had a knife and reached for it. On these facts, it was

reasonable for the officers to immediately secure the knife for their own

protection and, therefore, not a violation of the Fourth Amendment. Id.

F.    Consent to Search the Blazer

      Finally, Mr. Malouff argues that his consent to search the Blazer was

involuntary because he was seized when it was given. The Government counters

with three arguments. First, the Government argues that, because Officer Hooper

had grounds to arrest Mr. Malouff for possession of paraphernalia, he could have

searched the car incident to the arrest without Mr. Malouff’s consent. Second, the

Government contends that the officers could search the vehicle without Mr.

Malouff’s consent because he stated there were drugs in the car. Third, the

Government argues that Mr. Malouff in fact gave voluntary consent, and therefore

no warrant was needed to search the Blazer.

      While an officer with consent may search a vehicle without a warrant, see

United States v. Taverna, 348 F.3d 873, 877 (10th Cir. 2003), we need not reach


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the question whether consent was actually given here because the Government

prevails on its first and second arguments. Upon finding the hypodermic needle

in the flashlight, Officer Hooper could have arrested Mr. Malouff for possession

of drug paraphernalia.   See N.M. Stat. Ann. § 30-31-25.1. He, therefore, is

allowed to search the Blazer without consent. See United States v. Franco, 981

F.2d 470, 473 (10th Cir. 1992) (permitting officers to search a vehicle incident to

an arrest).

       Alternatively, Officer Hooper had probable cause to search the Blazer

based on Mr. Malouff’s statement that there were drugs in the car.   United States

v. Mercado, 307 F.3d 1226, 1228 (10th Cir. 2002) (“When federal officers have

probable cause to believe that an automobile contains contraband, the Fourth

Amendment does not require them to obtain a warrant prior to searching the car

for and seizing the contraband.”) (internal quotation omitted). Because the

officers had probable cause to believe the car contained contraband and because

they could have searched the Blazer as incident to an arrest, we hold that the

search did not violate the Fourth Amendment




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                      III. CONCLUSION

For the foregoing reasons, we AFFIRM.




                             ENTERED FOR THE COURT,


                             Deanell Reece Tacha
                             Chief Circuit Judge




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