                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 21 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                          No. 12-30075

               Plaintiff - Appellant,              D.C. No. 2:10-cr-00096-RHW-1

  v.
                                                   MEMORANDUM *
LEODIS R. ROACH,

               Defendant - Appellee.



                   Appeal from the United States District Court
                       for the Eastern District of Washington
                 Robert H. Whaley, Senior District Judge, Presiding

                        Argued and Submitted March 6, 2013
                                Seattle, Washington

Before: FERNANDEZ, W. FLETCHER, and RAWLINSON, Circuit Judges.

       Appellant United States challenges the suppression of evidence discovered

by Washington State troopers during the search of a vehicle stopped for driving in

the left-hand lane of Interstate 90 in the absence of traffic.

       Section 46.61.100(2) of the Washington Revised Code provides:



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       Upon all roadways having two or more lanes for traffic moving in the
       same direction, all vehicles shall be driven in the right-hand lane then
       available for traffic, except (a) when overtaking and passing another
       vehicle proceeding in the same direction, (b) when traveling at a speed
       greater than the traffic flow, (c) when moving left to allow traffic to
       merge, or (d) when preparing for a left turn at an intersection, exit, or
       into a private road or driveway when such left turn is legally
       permitted.

Wash. Rev. Code. § 46.61.100(2); see also id. § 46.63.020 (providing that any

violation of a section in Title 46 of the Wash. Rev. Code is a traffic infraction).

       Because there is no state court decision interpreting this statutory provision,

we must “predict how the highest state court would decide the issue.” Kekauoha-

Alisa v. Ameriquest Mortgage Co. (In re Kekauoha-Alisa), 674 F.3d 1083, 1088

(9th Cir. 2012) (citation omitted). Washington state courts begin statutory

interpretation with the plain meaning of the statute, as “discerned from the ordinary

meaning of the language at issue . . .” Lake v. Woodcreek Homeowners Ass’n, 243

P.3d 1283, 1288 (Wash. 2010) (en banc), as amended. Washington courts also give

effect to all the language of the statute. See id.

       Section 46.61.100(2) provides that a vehicle shall remain in the right-hand

lane then available for traffic unless the vehicle is passing another vehicle, moving

faster than the traffic flow, allowing traffic to merge, or preparing to make a left

turn. In most cases, Washington courts have interpreted “shall” as conveying a



                                       Page 2 of 4
mandatory directive. See Singleton v. Frost, 742 P.2d 1224, 1226 (Wash. 1987)

(“Ordinarily, the use of the word shall in a statute carries with it the presumption

that it is used in the imperative rather than in the directory sense.”). We do not

agree with the district court that § 46.61.100(4)1 overrides the mandatory language

in § 46.61.100(2). Rather, we read the plain language of the statute as a whole to

mandate use of the right-hand lane then available for traffic except in four

specified circumstances, and to prohibit driving continuously in the left lane when

doing so impedes the flow of traffic. Consequently, in the state of Washington, it is

a traffic infraction to drive continuously in the left-hand lane of a two-lane divided

highway in the absence of traffic.

      Accordingly, Officer Clark’s decision to stop the vehicle was based on

reasonable suspicion because he observed the driver driving continuously in the

left-hand lane of I-90 in violation of § 46.61.100. See United States v. Choudhry,

461 F.3d 1097, 1100 (9th Cir. 2006) (“[T]he decision to stop an automobile is

reasonable where the police have probable cause to believe that a traffic violation

has occurred. . . .”) (citations omitted). Because the stop was based on reasonable

suspicion that the driver was committing a traffic infraction, evidence discovered


      1
         Section 46.61.100(4) provides: “It is a traffic infraction to drive
continuously in the left lane of a multilane roadway when it impedes the flow of
other traffic.” Wash. Rev. Code § 46.61.100(4).

                                     Page 3 of 4
during the ensuing search was admissible in subsequent proceedings. See United

States v. Willis, 431 F.3d 709, 717 (9th Cir. 2005).




      REVERSED AND REMANDED for further proceedings consistent with

this disposition.




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