United States v. Flores-Olmos , 438 F. App'x 713 ( 2011 )


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  •                                                                         FILED
    United States Court of Appeals
    Tenth Circuit
    September 14, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                   No. 11-5010
    (D.C. No. 4:10-CR-00121-GKF-1)
    RUBEN FLORES-OLMOS, a/k/a                            (N.D. Okla.)
    Angel Olmos, a/k/a Eduardo Muniz,
    a/k/a Edrado Muniz, a/k/a Angel Perez
    Olmos, a/k/a Alfonso,
    Defendant-Appellant
    ORDER AND JUDGMENT *
    Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
    Ruben Flores-Olmos pleaded guilty to one count of being an alien in the
    United States after deportation but reserved his right to appeal the district court’s
    denial of his motion to suppress evidence acquired during a traffic stop. On
    appeal, Flores-Olmos argues that he was the victim of racial profiling. He further
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and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.
    contends that the Oklahoma seat belt law is ambiguous and that the doctrine of
    lenity should absolve him. Finding no error in the district court’s refusal to
    suppress evidence of Flores-Olmos’s illegal presence in the United States, we
    affirm.
    Flores-Olmos was stopped by a Nowata County, Oklahoma, deputy sheriff
    after the deputy saw a passenger in Flores-Olmos’s pickup hanging his upper
    body out of the passenger-side window in a fifty-five mile zone and apparently
    not wearing a seatbelt. 1 Flores-Olmos was unable to produce a driver’s license or
    any other identification. His passenger showed the deputy an identification card
    apparently issued in Mexico. The deputy then asked Flores-Olmos whether he
    was in the United States legally. He admitted he was not. Flores-Olmos was
    arrested and jailed for failure to have a valid drivers’ license. The local district
    attorney refused to prosecute the traffic offense; Flores-Olmos was turned over to
    the custody of the Department of Homeland Security and was removed to Mexico.
    At the suppression hearing, the deputy testified that he determined to stop
    the pickup because of the perceived seatbelt violation and that he could not
    determine the nationality of the pickup’s occupants until he approached the
    stopped vehicle. In denying the motion to suppress, the district court ruled that
    1
    The passenger actually had his seatbelt fastened over his lap but had the
    diagonal shoulder belt under his right arm instead of across his chest and over his
    right shoulder. This is a violation of Oklahoma law which requires that seatbelts
    be “properly adjusted.” 
    Okla. Stat. tit. 47, § 12-417
    (A)(1).
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    the officer had reasonable cause to pull Flores-Olmos over because he observed a
    passenger apparently not wearing a seat belt, contrary to Oklahoma law. The
    court further ruled that, once having made a legal stop, the officer was allowed to
    request a driver’s license and vehicle registration, run a computer check, and
    issue a citation.
    We review the factual findings underlying the denial of a motion to
    suppress for clear error. United States v. Le, 
    173 F.3d 1258
    , 1264 (10th Cir.
    1999). While we view the record in the light most favorable to the State, the
    ultimate question of whether the State’s conduct was reasonable is a legal
    question we consider de novo. See 
    id.
    Under the Fourth Amendment, a traffic stop constitutes a seizure and
    therefore must be “reasonable.” Delaware v. Prouse, 
    440 U.S. 648
    , 663 (1979).
    A stop is reasonable if it is based on an observed traffic violation or a reasonable
    articulable suspicion that such a violation has occurred or is occurring.
    United States v. Botero-Ospina, 
    71 F.3d 783
    , 787 (10th Cir. 1995) (en banc).
    Reasonable suspicion is “a particularized and objective basis” for suspecting the
    person stopped of criminal activity. United States v. Cortez , 
    449 U.S. 411
    ,
    417-18 (1981); see also United States v. Callarman, 
    273 F.3d 1284
    , 1287
    (10th Cir. 2001) (“While either probable cause or reasonable suspicion is
    sufficient to justify a traffic stop, only the lesser requirement of reasonable
    suspicion is necessary.”).
    -3-
    We are not convinced by Flores-Olmos’s challenge to the traffic stop. Here,
    the district court made the factual finding that the deputy had reasonable cause to
    pull the pickup over because he observed what appeared to be an unrestrained
    passenger in the front-seat area of the vehicle. None of the evidence noted by
    Flores-Olmos establishes that this finding was clearly erroneous. In light of this
    factual finding, the accompanying legal conclusion is justified: the deputy had “a
    particularized and objective basis,” Cortez, 
    449 U.S. at 417
    , for suspecting a
    violation of the Oklahoma seatbelt law.
    “[A]s long as [an] officer’s questioning does not extend [the] length of [a]
    traffic detention, there is no Fourth Amendment issue regarding the content of the
    officer’s questions.” United States v. Guerrero-Espinoza, 
    462 F.3d 1302
    , 1308
    n.6 (10th Cir. 2006) (citing United States v. Alcaraz-Arellano, 
    441 F.3d 1252
    ,
    1258 (10th Cir. 2006)). Flores-Olmos does not argue that the detention was
    unreasonably prolonged because of the deputy’s questioning.
    Turning to the deputy’s particular question to Flores-Olmos about his
    immigration status, we note that officers “can validly ask questions during a
    lawful traffic stop that are unrelated to the stop.” Guerrero-Espinoza, 
    462 F.3d at
    1308 n.6 (citing Muehler v. Mena, 
    544 U.S. 93
    , 101 (2005)). The deputy testified
    here that he asked about Flores-Olmos’s immigration status before he arrested
    him for not having a driver’s license. An officer does not need reasonable
    suspicion to inquire about immigration status. Mena, 
    544 U.S. at 101
    ; see also
    -4-
    United States v. Salinas-Calderon, 
    728 F.2d 1298
    , 1301 n.3 (10th Cir. 1984) (“A
    state trooper has general investigatory authority to inquire into possible
    immigration violations.”).
    Focusing on Flores-Olmos’s charge of racial profiling, we note the
    Supreme Court’s admonition that “[s]ubjective intentions play no role in ordinary,
    probable-cause Fourth Amendment analysis,” Whren v. United States, 
    517 U.S. 806
    , 813 (1996). Racial profiling issues concerning the intentional discriminatory
    application of the law are the province of the Equal Protection Clause. 
    Id.
     In
    analyzing a charge of racial profiling in the context of a traffic stop, we have held
    a defendant
    must present evidence from which a jury could reasonably infer that
    the law enforcement officials involved were motivated by a
    discriminatory purpose and their actions had a discriminatory effect.
    To satisfy the discriminatory-effect element, one who claims
    selective enforcement must . . . make a credible showing that a
    similarly-situated individual of another race could have been, but
    was not, [stopped or] arrested . . . for the offense for which the
    defendant was [stopped or] arrested. . . . And the
    discriminatory-purpose element requires a showing that
    discriminatory intent was a motivating factor in the decision to
    enforce the criminal law against the defendant. Discriminatory intent
    can be shown by either direct or circumstantial evidence.
    Alcaraz-Arellano, 
    441 F.3d at 1264
     (alterations in original) (citations and internal
    quotation marks omitted). There is no evidence even remotely approaching this
    standard here. The stop was not rendered unreasonable on the ground that, after
    the stop was made, the deputy noticed the Hispanic appearance of the pickup
    -5-
    occupants. The stop was based on an observed apparent traffic violation, not on
    the appearance of Flores-Olmos and his passenger.
    Finally, Flores-Olmos argues that Oklahoma’s seatbelt law is ambiguous
    and that the rule of lenity requires suppression. “When confronted with an
    ambiguous criminal statute, the rule of lenity instructs courts to interpret those
    statutes in favor of the accused.” United States v. Metzener, 
    584 F.3d 928
    , 934
    (10th Cir. 2009) (internal quotation marks omitted). The state seatbelt law
    requires that front-seat occupants of passenger cars wear properly adjusted
    seatbelts. See 
    Okla. Stat. tit. 47, § 12-417
    (A)(1). Included in the definition of
    “passenger cars” are “the passenger compartments of pickups, vans, minivans,
    and sport utility vehicles.” 
    Id.
     § 12-417(A)(2). Trucks are not considered
    “passenger cars.” See id. Flores-Olmos argues that his vehicle could be
    considered either a pickup or a truck and thus the law is ambiguous. This
    argument is meritless.
    Pictures in the record show that Flores-Olmos’s vehicle was a pickup.
    R. Vol. 1 at 77-78, 80. The deputy described it as such in his incident report, and
    the district court found that the vehicle was “clearly a pickup.” Id., Vol. 2 at 50.
    And finally, the Oklahoma Attorney General has clarified that “[p]ick-up trucks
    which are not licensed as farm vehicles . . . must comply with the mandatory seat
    belt law set forth at 
    47 O.S. 12
    -417(A)(1999).” 
    2000 OK AG 44
    , 2 (2000).
    -6-
    Flores-Olmos’s pickup was not licensed as a farm vehicle, and thus Flores-Olmos
    and his passenger were required to wear properly adjusted seatbelts.
    Because the stop was justified at its inception by the deputy’s observation
    that a seatbelt violation may be occurring, and because the deputy’s actions were
    “reasonably related in scope to the circumstances that first justified the
    interference,” United States v. Cline, 
    349 F.3d 1276
    , 1286 (10th Cir. 2003)
    (internal quotation marks omitted), the district court was correct to deny
    Flores-Olmos’s suppression motion.
    We have granted the government’s motion to supplement the record on
    appeal and now order the supplemental record to remain sealed. The judgment of
    the district court is AFFIRMED.
    Entered for the Court
    Stephen H. Anderson
    Circuit Judge
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