                                                                              FILED
                               NOT FOR PUBLICATION                            DEC 16 2011

                                                                          MOLLY C. DWYER, CLERK
                        UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                               FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                           No. 10-50310

               Plaintiff - Appellee,                D.C. No. 5:09-cr-00055-RT-1

  v.
                                                    MEMORANDUM*
BENJAMIN SCHWARZ,

               Defendant - Appellant.


                       Appeal from the United States District Court
                           for the Central District of California
                     Robert J. Timlin, Senior District Judge, Presiding

                              Submitted December 5, 2011**
                                  Pasadena, California

Before:        PREGERSON and MURGUIA, Circuit Judges, and CONLON,

District Judge.***



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       ***
            The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
      Benjamin Schwarz appeals the district court’s denial of his motion to

suppress evidence of drugs found in his vehicle. Following the denial of his

suppression motion, Schwarz pled guilty to possession of cocaine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(ii)(II). We have

jurisdiction under 28 U.S.C. § 1291. We affirm.

      We review de novo the district court’s denial of a motion to suppress, and

review for clear error the underlying factual findings. United States v. Rodgers,

656 F.3d 1023, 1026 (9th Cir. 2011).

      First, the district court correctly determined that the stop of Schwarz’s

vehicle was supported by reasonable suspicion that he had committed a traffic

violation. See United States v. Miranda-Guerena, 445 F.3d 1233, 1236 (9th Cir.

2006). The sworn declaration and testimony of Detective Solomon established that

Schwarz swerved his vehicle into a neighboring lane and cut off another vehicle,

providing reasonable suspicion that he made an unsafe lane change in violation of

California Vehicle Code § 21658(a). We accord special deference to the district

court’s determination that Detective Solomon’s statements were credible, see

United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008), and the district

court’s finding of reasonable suspicion was well-grounded in the record. Because

Detective Solomon had reasonable suspicion to believe Schwarz committed a


                                          2
traffic violation, it is immaterial whether he had a subjective motivation to stop

Schwarz’s vehicle to investigate drug trafficking. See United States v. Willis, 431

F.3d 709, 715 (9th Cir. 2005).

      Second, the traffic stop was not impermissibly prolonged. Detective

Solomon conducted additional questioning unrelated to the traffic violation.

Extending the stop for questioning was permissible because the detective’s

observations and conflicting responses from Schwarz and his passenger gave rise

to a reasonable suspicion that Schwarz was engaged in drug trafficking; a fifteen

minute stop for the period necessary to investigate the suspicion of drug activity

was justified by the record. See Rodgers, 656 F.3d at 1027 (extending a traffic

stop for additional investigation was permissible where “the situation was

evolving, and new particularized factors arose that supported the continued

detention”).

      Third, even if the district court erred in determining that Schwarz voluntarily

consented to the search of his truck, the search was supported by probable cause.

See United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010) (under the

automobile exception, police may search a vehicle without a warrant “if there is

probable cause to believe that the vehicle contains evidence of a crime”). Probable

cause to search was provided by the narcotics detector dog’s alert to the presence


                                          3
of drugs, coupled with Detective Solomon’s observations regarding the altered

truck bed and the truck’s occupants. See United States v. Cedano-Arellano, 332

F.3d 568, 573 (9th Cir. 2003) (an “‘alert’ by [a] certified, reliable narcotics

detector dog [i]s sufficient, even by itself, to support a finding of probable cause”);

United States v. Davis, 530 F.3d 1069, 1084 (9th Cir. 2008) (probable cause may

be supported in part by an officer’s “reasonable inferences”).

      Finally, we do not consider Schwarz’s contention that the scope of the

search was impermissibly broad because he failed to raise this contention in his

motion to suppress, thereby waiving it. See United States v. Keesee, 358 F.3d

1217, 1220 (9th Cir. 2004) (“A theory for suppression not advanced in district

court cannot be raised for the first time on appeal.”). Although a waiver may be

excused for good cause, Schwarz cannot show good cause. He was aware of the

allegedly impermissible scope of the search at the time he filed his motion to

suppress. See United States v. Anderson, 472 F.3d 662, 670 (9th Cir. 2006).



      AFFIRMED.




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