                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         AUG 24 2000
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    DAVID CRAIG CARLSEN,

               Plaintiff-Appellant,

    v.                                                 No. 99-4065
                                                  (D.C. No. 93-CV-67-G)
    TIM GIL DURON, BRIAN COY,                            (D. Utah)
    individually, and in their capacity
    as Logan City Police Officers;
    SCOTT L. WYATT, in his capacity
    as Logan City Prosecutor; JOHN AND
    JANE DOE I through XX, designated
    as unknown defendants,

               Defendants,

         and

    LEM R. EARL, individually, and
    in his capacity as a Logan City
    Police Officer; KENT HARRIS,

               Defendants-Appellees.


                             ORDER AND JUDGMENT         *




Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.



*
      This order and judgment is not binding precedent, except under the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.
      After examining the briefs and appellate record, this panel has 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). The case is

therefore ordered submitted without oral argument.


                                   I. Background

      Plaintiff David Craig Carlsen, appearing   pro se , appeals from a judgment

entered for the defendants-appellees, police officers in Logan City, Utah,

following a bench trial of his civil rights action under 42 U.S.C. § 1983.

Defendant Kent Harris and another Logan City police officer, Bryan Low, who is

not a defendant, stopped Carlsen in his automobile at approximately 1:20 a.m. on

September 13, 1992, while he was driving through downtown Logan City toward

his home. Officers Harris and Low testified that Carlsen made a wide right hand

turn in violation of Utah Stat. § 41-6-66(1); was driving 20 m.p.h. in a 30 m.p.h.

speed zone; and tapped on his brakes twice to slow, even though there was no

stop sign or other reason to brake. The officers testified that these actions caused

them to suspect the driver was intoxicated or under the influence of alcohol.

      Officers Harris and Low pulled Carlsen over. Officer Harris testified

Carlsen was smoking a cigarette and appeared tired or groggy. Carlsen produced

his drivers’ license and registration. Officer Harris asked him if he had been


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drinking. The officers testified that in response, Carlsen got angry, got out of his

vehicle and demanded he be given a breathalyser test. Officer Harris first

administered field sobriety tests, which Carlsen failed according to Officers

Harris and Low. Defendant Lem R. Earl, a supervising police officer, and two

other Logan City police officers were present as observers during portions of the

traffic stop.

       At the conclusion of the field sobriety tests, Carlsen was handcuffed and

arrested for driving under the influence of alcohol. He was taken to the county

jail, and immediately given a breathalyser test. This test indicated he had a blood

alcohol level of zero percent. The officers released Carlsen from handcuffs;

drove him back to his vehicle; returned his drivers’ license and registration and

did not issue him any traffic or other citation.

       At trial, Carlsen denied that he made a wide right turn, testified that he was

driving 25 to 30 m.p.h. and said he braked twice to slow on a slight decline in the

road. He denied that he volunteered or demanded to take a breathalyser test prior

to his arrest and denied that he failed any of the field sobriety tests. He testified

that he has complained in the past about Logan City police officers harassing him,

and that the Logan City Police Department is hostile toward his family.

       The trial court, however, credited all of the police officers’ testimony, and

found that they had probable cause to stop Carlsen, to administer the field


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sobriety tests, and to arrest him for driving under the influence of alcohol. The

district court further found that Carlsen feigned intoxication in order to provoke

the defendants into arresting him. The district court ruled that the defendants did

not violate any of Carlsen’s constitutional rights.

       On appeal, Carlsen contends that several of the district court’s factual

findings are not supported by the evidence; that the defendants lacked probable

cause to stop his vehicle; that the stop was an unconstitutional pretext stop; and

that his continued detention to perform field sobriety tests exceeded the original

scope of the traffic stop. He also challenges several pretrial rulings.


                                        II. Analysis

                            A. The Traffic Stop and Arrest

       We review de novo the district court’s determination of probable cause

and reasonable suspicion,     see Ornelas v. United States      , 517 U.S. 690, 697 (1996),

while reviewing its underlying findings of historical fact for clear error.

See United States v. Barron-Cabrera        , 119 F.3d 1454, 1457 (10th Cir. 1997).

To determine the reasonableness of an investigative vehicle stop, “we make a dual

inquiry, asking first ‘whether the officer’s action was justified at its inception,’

and second ‘whether it was reasonably related in scope to the circumstances

which justified the interference in the first place.’”        United States v. Hunnicutt ,

135 F.3d 1345, 1348 (10th Cir. 1998) (quoting            Terry v. Ohio , 392 U.S. 1, 20

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(1968)). “[A]n investigative detention must ‘last no longer than is necessary to

effectuate the purpose of the stop.’”        United States v. Patten , 183 F.3d 1190, 1193

(10th Cir. 1999) (quoting    Florida v. Royer , 460 U.S. 491, 500 (1983)). It must be

temporary, and its scope “must be carefully tailored to its underlying

justification.”   United States v. Gutierrez-Daniez     , 131 F.3d 939, 942 (10th Cir.

1997)). “A variety of factors may contribute to the formation of an objectively

reasonable suspicion of illegal activity.”       Hunnicutt , 135 F.3d at 1349.

                              1. Credibility Determinations

       Carlsen first asserts that several of the district court’s factual findings were

clearly erroneous, including its finding that he failed the field sobriety tests and

that he feigned intoxication in order to mislead the officers. We review the

district court’s findings of fact for clear error, giving “due regard . . . to the

opportunity of the trial court to judge [ ] the credibility of the witnesses.”

Fed. R. Civ. P. 52(a). “A finding of fact is not clearly erroneous unless it is

without factual support in the record, or if the appellate court, after reviewing all

the evidence, is left with the definite and firm conviction that a mistake has been

made.” Las Vegas Ice & Cold Storage Co. v. Far West Bank            , 893 F.2d 1182,

1185 (10th Cir. 1990) (quotation omitted). After thorough review of the record,

we conclude that the district court’s findings of fact are not clearly erroneous.




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                                 2. The Initial Stop

      Because the trial court credited Officers Harris’ and Low’s testimony that

they observed Carlsen make an improper, wide right turn, in violation of a Utah

traffic law, the initial stop of Carlsen’s car was reasonable and supported by

probable cause.   See Hunnicutt , 135 F.3d at 1348. Moreover, Carlsen’s lane

violation, slow driving and braking provided Officer Harris with reasonable

suspicion that he was driving while under the influence of alcohol, also

a violation of Utah law.

      Our cases make clear that the government need not show a violation
      actually occurred to justify an initial traffic stop. An initial traffic
      stop is valid under the Fourth Amendment not only if based on an
      observed traffic violation, but also if the officer has a reasonable
      articulable suspicion that a traffic or equipment violation has
      occurred or is occurring.

Id.

      Because Officer Harris observed the lane violation and had reasonable

articulable suspicion that Carlsen might be driving impaired, he was justified

in questioning Carlsen and detaining him to determine whether he had been

drinking.

      Carlsen argues Officer Harris lacked probable cause to stop his vehicle

because he was never actually given a traffic ticket for the wide turn violation.

The officers’ observation of Carlsen’s traffic violation was, however, sufficient

grounds to stop his vehicle, even though they did not ultimately issue Carlsen

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a ticket for the violation.   See United States v. Dhinsa , 171 F.3d 721, 725-26

(2d Cir. 1998) (observation of traffic violation justifies stop even though the

observation did not motivate the stop and no traffic summons was issued);

see also Hunnicutt , 135 F.3d at 1348 (noting that the government need not show

a violation actually occurred).

       Carlsen also cites to Sandy City v. Thorsness , 778 P.2d 1011, 1012-13

(Utah Ct. App. 1989), which held that driving on the inside lane, at 20 m.p.h. in

a 40 m.p.h. speed zone at 1:30 a.m. does not constitute reasonable suspicion to

believe the driver is under the influence of alcohol. Unlike the facts in    Sandy

City , Officer Harris did observe a traffic violation, which provided an

independent and adequate basis to stop Carlsen.

                                        3. Pretext

       Carlsen claims that the stop was an unconstitutional pretext stop. However,

Officer Harris did have reasonable, articulable suspicion that a traffic violation

had occurred. “It is irrelevant that the officer may have had other subjective

motives for stopping the vehicle.”     Hunnicutt , 135 F.3d at 1348. “[T]he

constitutional reasonableness of traffic stops [does not] depend[ ] on the actual

motivations of the individual officers involved.”      Whren v. United States ,

517 U.S. 806, 813 (1996).




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                                  4. Field Sobriety Tests

       Carlsen contends that Officer Harris violated his Fourth Amendment rights

by detaining him beyond the scope of the initial stop by requiring him to submit

to field sobriety tests. However, Officer Harris’ initial stop was based in part

upon his reasonable suspicion that Carlsen was driving under the influence of

alcohol. Thus, the officer was justified in detaining Carlsen in order to ascertain

whether he was impaired. Carlsen’s angry response to Officer Harris’

questioning, coupled with his earlier traffic violation, slow driving and braking,

did provide the requisite level of suspicion for Officer Harris to conduct field

sobriety tests.   See Rogala v. District of Columbia    , 161 F.3d 44, 52 (D.C. Cir.

1998) (holding that only reasonable suspicion is required to conduct a field

sobriety test because it is such a minimal intrusion on the driver);    see Hunnicutt ,

135 F.3d at 1348 (weaving across traffic lanes provided reasonable suspicion that

defendant had violated statutes governing proper use of lanes or was driving

under the influence of alcohol, to support traffic stop).

                               5. Probable Cause to Arrest

       Carlsen argues that the police officers lacked probable cause to arrest him

for driving under the influence of alcohol. In determining whether probable

cause exists to make an arrest, the court examines whether the totality of the

circumstances would lead a reasonable person to believe that an offense has been


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committed. See United States v. Vazquez-Pulido     , 155 F.3d 1213, 1216 (10th Cir.

1998). Carlsen notes that he did not smell of alcohol, did not slur his speech or

otherwise behave intoxicated and denied that he had been drinking. Carlsen also

challenges the admissibility and reliability of the Horizontal Gaze Nystagamus

(HGN) field sobriety test and the reliability of the nine-step walk sobriety test.

       Carlsen did not challenge the admissibility of the HGN before the district

court, nor do we find that the district court committed clear error in admitting

evidence of this test. “The trial judge has broad discretion . . . to determine

reliability [of evidence] in light of the particular facts and circumstances of the

particular case.”   United States v. Charley , 189 F.3d 1251, 1266 (10th Cir. 1999)

(quotation omitted), cert. denied , 120 S. Ct. 842 (2000). The district court heard

evidence concerning the administration of all of the field sobriety tests, and did

not conclude that any of the tests were unreliable.

       Although Carlsen denied that he had been drinking and the police did not

detect any odor of alcohol, the district court did make the factual findings that he

did make an improper lane change, drive in an unusual manner, become angry

with the police, and fail the field sobriety tests. We conclude the totality of these

circumstances was sufficient to establish probable cause to arrest Carlsen for

driving under the influence.   See United States v. Barry , 98 F.3d 373, 377




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(8th Cir. 1996) (finding probable cause to arrest defendant for driving under the

influence due to his erratic driving and failure to pass field sobriety tests).

                                     B. Jury Trial

       Carlsen next contends the district court erred in denying his Fed. R. Civ. P.

39(b) motion for a jury trial. Rule 39(b) permits the district court, in its

discretion, to order a jury trial notwithstanding the moving party’s failure to make

a timely jury demand. A district court does not abuse its discretion by denying

a Rule 39(b) motion when the “failure to make a timely jury demand results from

nothing more than the mere inadvertence of the moving party.”        Nissan Motor

Corp. v. Burciaga , 982 F.2d 408, 409 (10th Cir. 1992) (per curiam). Here,

Carlsen offered no excuse or explanation for his untimely request for a jury trial,

nor did he make any attempt to demonstrate that his untimely jury demand was

due to anything other than inadvertence or oversight. Accordingly, the district

court’s denial of the Rule 39(b) motion was not an abuse of discretion.

                                      C. Recusal

       Carlsen contends the district court prejudged the issues and facts and,

therefore, erred in not   sua sponte disqualifying himself from presiding over this

case under 28 U.S.C. § 455. Section 455(a) provides that a federal judge must

recuse himself in any proceeding where “his impartiality might reasonably be

questioned,” even in the absence of a motion. Carlsen’s allegations are primarily


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based on the district court’s prior grant of summary judgment in favor of

defendants. Prior adverse rulings alone do not constitute grounds for

disqualification.   See Green v. Branson , 108 F.3d 1296, 1305 (10th Cir. 1997);

United States v. Cooley , 1 F.3d 985, 993 (10th Cir. 1993). The judge’s comments

during the summary judgment proceedings and other pretrial proceedings do not

“display a deep-seated favoritism or antagonism that would make fair judgment

impossible,” and, therefore, do not rise to the level of possible disqualification.

Liteky v. United States , 510 U.S. 540, 555 (1994);   see also United States v.

Young , 45 F.3d 1405, 1415 (10th Cir. 1995).

                          D. Motion to Amend Complaint

       Carlsen contends the district court erred in denying his motion seeking to

substitute Officer Low as a named defendant in place of the name “John Doe I.”

This motion was filed on the eve of trial, six years after Carlsen initiated this

lawsuit. The district court did not abuse its discretion in denying this motion

because the record indicates that Carlsen was aware of Officer Low’s identity as

one of his arresting officers at least as long ago as September 1994, and Carlsen

did not satisfy the requirements of Fed. R. Civ. P. 15(c).




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     The judgment of the United States District Court for the District of Utah

is AFFIRMED. The mandate shall issue forthwith.



                                                  Entered for the Court



                                                  Michael R. Murphy
                                                  Circuit Judge




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