F I L E D

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

APR 18 2002

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILLIAM A. KERR,

No. 00-3399
(D.C. No. 00-10070-01-WEB)
(D. Kansas)

Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and LUCERO, Circuit Judges.

Defendant-Appellant William A. Kerr entered a conditional guilty plea to

possession of marijuana with intent to distribute in violation of 21 U.S.C.
841(a) and 18 U.S.C. 2, reserving the right to appeal the district courts
dismissal of his motion to suppress evidence seized from his automobile. Kerr
appeals pursuant to 28 U.S.C. 1291, and we affirm.
On April 11, 2000, Kansas Highway Patrol Troopers John Rule and Rich

This order and judgment is not binding precedent, except under the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.
*

Jimerson were patrolling I-70 in Ellis County, Kansas. During their patrol they
were behind defendant and witnessed the right tires of his vehicle cross over the
right solid lane marker of the right-hand lane by approximately one foot, cross
back into the lane, and cross over the marker again by approximately one foot.
The troopers pulled defendant over, and Rule approached him and asked for his
drivers license and registration. Rule told defendant he stopped him because he
was drifting around a little and asked defendant if he was sleepy. (Appellants
App. at 22.) Defendant replied he was not sleepy and suggested that the wind
may have blown his truck around a bit.
Rule and Jimerson first took notice of defendants vehicle because it had
Ontario, Canada, license plates and was an unusual Volkswagen military-type
vehicle. Jimerson had never seen such a vehicle and thought it could have been a
converted military truck. While Rule talked to defendant, Jimerson examined the
bed of the truck and laid on the ground to look at its underside. Jimerson
discovered what he believed to be a false compartment. Based on his professional
experience, Jimerson knew that false compartments are often used to transport
drugs.
Jimerson relayed his suspicions to Rule after they returned to their patrol
car, and Rule subsequently returned defendants license and registration, issued a
warning for lane violations, and asked defendant if he was carrying anything
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illegal in his truck, a question to which defendant replied no. Rule then asked if
he could search the vehicle, and defendant agreed. Defendant exited his truck and
showed Rule around.
During the search of defendants vehicle, Rule discovered marred bolts
holding the seat to the floor and concluded that they had recently been removed.
Rule also saw a door to the false compartment in the bed of the truck; however,
the door was sealed and the troopers did not have the necessary tools to open it.
At this time Rule, a trained K-9 handler, retrieved his dog, Kilo, from the patrol
car. Rule took Kilo around the vehicle and Kilo became excited, exhibiting
behavior indicating that he smelled drugs. The troopers asked defendant to
follow them to a nearby service station where they opened the compartment in
defendants vehicle. One hundred fourteen pounds of marijuana were discovered
and seized by the troopers, and defendant was arrested.
Defendant moved to suppress the marijuana found by Rule and Jimerson on
the grounds that the troopers lacked probable cause to effectuate the traffic stop
and that the subsequent detention and search were unreasonable. The district
court denied the motion, finding that the troopers had probable cause to think that
defendant violated Kan. Stat. Ann. 8-1522 and that defendant consented to the
extension of the traffic stop and the search of his vehicle.
Because the transcript from the motion to suppress hearing had been lost,
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the district court determined that the best available statement of the evidence
presented at the [suppression] hearing is [the] statement of facts contained in its
Memorandum and Order filed September 20, 2000, together with the exhibits
introduced at the hearing, including the videotape of the traffic stop, pursuant to
Fed. R. App. P. 10(c). (Appellants App. at 13839.)
On appeal defendant claims that the district court erred in denying his
motion to suppress and that his due process rights were violated by the district
courts decision to submit a statement of the evidence prepared by the court,
rather than by the appellant, as a substitute for the lost transcript of the motion to
suppress hearing. We consider defendants contentions in turn.
I
In reviewing the district courts denial of defendants motion to suppress,
we view the evidence in the light most favorable to the district courts
determination and accept the factual findings of the district court unless they are
clearly erroneous. United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997).
Ultimate determination of reasonableness under the Fourth Amendment is a
question of law that we review de novo. Id.
A traffic stop is a seizure within the meaning of the Fourth Amendment
and we apply the principles of Terry v. Ohio, 392 U.S. 1 (1968), to such stops.
Traffic stops are properly analyzed as investigative detentions that must be
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supported by a reasonable, articulable suspicion that criminal activity is afoot.

See United States v. Sokolow , 490 U.S. 1, 7 (1989); United States v. Anderson ,
114 F.3d 1059, 1063 (10th Cir. 1997).

Reasonableness of the stop depends on

whether the officers action was justified at its inception, and whether it was
reasonably related in scope to the circumstances which justified the interference
in the first place. Terry, 392 U.S. at 20.
A
In order for the initial stop of defendant to be reasonable under the Fourth
Amendment, the troopers must have observed a traffic violation or had a
reasonable articulable suspicion that defendant violated one of the many
applicable traffic and equipment regulations of the jurisdiction. See United States
v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc).
Defendant argues that Rule did not have probable cause to believe a traffic
law had been violated because Rule only observed him drift one foot over the
right solid lane marker twice. (Appellants Br. at 8.) Defendant contends that he
was not drifting on the highway. The district court, on the other hand, concluded
that the troopers testimony on this point was more credible than defendants
testimony. During defendants cross-examination, he stated that he had been
acutely aware of the troopers presence behind him on the highway, that the
officers presence made him extremely nervous, and that he frequently checked
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the patrol car in his rear-view mirrors. (Appellants App. at 22 n.1.) The
district court found that this testimony lent credence to the officers testimony
that the defendant crossed the lane marker. (Id.) We accept this factual finding,
which is supported by the record, and conclude that the troopers observed a traffic
violation, rendering the subsequent stop of defendant reasonable.
In the alternative defendant argues that two instances of drifting do not
constitute a violation of Kan. Stat. Ann. 8-1522(a). That section states that [a]
vehicle shall be driven as nearly as practicable entirely within a single lane and
shall not be moved from such lane until the driver has first ascertained that such
movement can be made with safety. Emphasizing the as nearly as practicable
language, defendant argues that two instances of drifting do not constitute a
violation of this statute. He cites United States v. Ochoa, 4 F. Supp. 2d 1007 (D.
Kan. 1998), and United States v. Gregory, 79 F.3d 973 (10th Cir. 1996), in
support of this contention. Defendant concedes, however, that these cases both
hold that one incident of drifting out of ones lane does not constitute a violation
of the applicable state law. In Gregory, the driver was pulled over after the
officer witnessed him cross two feet into the right shoulder emergency lane once.
We concluded that on the facts in that case an isolated incident of a vehicle
crossing into the emergency lane of a roadway is [not] a violation of Utah law.
79 F.3d at 978. Because the Utah law required that the driver remain in a single
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lane as nearly as practicable, considering that the road was winding, it was
windy, and the terrain was mountainous was relevant to the determination. We
observed, under these conditions any vehicle could be subject to an isolated
incident of moving into the right shoulder of the roadway, without giving rise to a
suspicion of criminal activity. Id. In Ochoa, the court noted extenuating
circumstances existed that contributed to the lane drifting. The district court
specifically found that Troopers Rule and Jimerson, the same troopers involved in
the present case, caused or contributed to causing the drivers single incident of
drifting. 4 F. Supp. 2d at 1012 n.4. Such circumstances do not exist in this case.
In this case, the district court found that [n]othing in the evidence suggests
that the conditions on April 11 would have made it impracticable to maintain a
single lane. (Appellants App. at 26 n.3.) Because defendant only asserts that
he might have drifted because he was looking in his mirror at the troopers but
does not contend that anything more than the mere presence of the troopers
contributed to his lane drifting, (id.), Ochoa and Gregory are inapplicable.
Rules and Jimersons observation of defendant drifting outside of his lane
twice within a short span of time constitutes a violation of Kan. Stat. Ann. 81522(a). Therefore the traffic stop was reasonable under the Fourth Amendment.

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B
Having concluded that the initial stop of defendant was reasonable, we next
examine the reasonableness of the subsequent detention and search of defendants
vehicle and person. If a suspect consents to further questioning, a law
enforcement officer may extend a traffic detention beyond its initial scope.
United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000). A detention only
occurs when the driver has objective reason to believe he or she is not free to
end the conversation with the officer and proceed on his or her way. United
States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996). A traffic stop can
become a consensual encounter if the officer returns the license and registration
and asks questions without further constraining the driver by an overbearing show
of authority. West, 219 F.3d at 1176.
After returning defendants drivers license and registration, Rule asked
defendant if he was carrying anything illegal in his vehicle. Defendant replied
no. This interaction was determined by the district court to be non-threatening
and friendly, a claim that defendant does not contest.
Based on this record-supported finding, we conclude that Rules questions
regarding the presence of illegal items and his request to search the vehicle took
place during a consensual encounter. Thus, continuation of the traffic stop was
reasonable under the Fourth Amendment.
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Before Rule questioned defendant about the presence of contraband,

Jimerson examined the undercarriage of the truck and concluded that there was a
hidden compartment that could have been used to store drugs. While this
discovery may have prompted Rule to question defendant, Jimersons visual
examination of the undercarriage of defendants truck did not constitute a
search within the meaning of the Fourth Amendment. United States v.
Gonzalez-Acosta, 989 F.2d 384, 38788 (10th Cir. 1993). Therefore, we need not
determine whether Jimerson had reasonable suspicion for his actions. Id.
C
Defendants claim that his consent to search was involuntary is a question
of fact that the district court evaluates in view of the totality of the circumstances.
West, 219 F.3d at 1177; see also Ohio v. Robinette, 519 U.S. 33, 40 (1996)
(stating that voluntariness is a question of fact to be determined from all the
circumstances). We accept the district courts findings unless they are clearly
erroneous. West, 219 F.3d at 1177.
Defendant contends that the government has not met its burden of proving
that his consent to search his truck was free and voluntary, and he thus contends
that any consent given was the fruit of prior illegal seizures. We disagree on the
basis that the government has demonstrated defendants consent was unequivocal
and specific and freely and intelligently given, without duress or coercion.
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United States v. Mendez, 118 F.3d 1426, 1432 (10th Cir. 1997) (quotation
omitted). This conclusion is further supported by defendant having exited his
truck and walked Rule around the vehicle after consenting to the search.
Defendants main argument depends on a determination that defendant was
illegally detained at the time he granted Rule consent to search his vehicle;
however, we have concluded that the initial traffic stop was reasonable and that
the subsequent encounter between Rule and defendant was a consensual
encounter, rather than an illegal detention. Based on these conclusions, defendant
was not illegally detained when he consented to the search of his truck.
III
Because defendant is alleging that his due process rights were infringed by
the district courts failure to use defendants statement of the evidence and
proceedings under Fed. R. App. P. 10(c) we review his claim de novo. United
States v. Thody, 978 F.2d 625, 628 (10th Cir. 1992). Absent a showing of
prejudice from the lack of a complete trial transcript, this Court will not conclude
that a due process violation has occurred. Black v. OHaver, 567 F.2d 361, 371
(10th Cir. 1977).
Defendant prepared a statement of evidence, under Fed. R. App. P. 10(c),
in lieu of the lost transcript of the suppression hearing. This was objected to by
the government on the basis that the district courts statement of facts was the
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proper source to rely upon. The district court agreed with the government and
determined that the best available statement of the evidence presented at the
suppression hearing was the statement of facts contained in its September 20,
2000, Memorandum and Order, along with the videotape of the traffic stop.
(Appellants App. at 138.)
Defendants sole objection is the exclusion of information regarding the
questionable history and credibility of the infamous Troopers Rule and Jimerson,
and defendant contends that meaningful appellate review is extinguished by the
district courts limitation of the facts considered on appeal. (Appellants Br. at
20.) However, there are only two differences between the district courts
statement of the facts and defendants submission: In his submission, defendant
denies that he committed a traffic offense, and he claims that Rule and Jimerson
had a course of conduct wherein Trooper Rule would simply stop a vehicle he
suspected on a hunch and say to the driver, Your [sic] drifting around a little bit
you getting sleepy? This was said in order to obtain a consent to search.
(Appellants App. at 46.) The district court specifically addressed these claims,
finding that the troopers testimony regarding defendant committing a traffic
offense was more credible than that of defendant, (id. at 22 n.1.), and that
defendant offered no competent evidence that these officers knowingly stopped
other drivers in the absence of probable cause, nor does he cite any credible
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evidence that they did so here. (Id.)

In reviewing a motion to suppress, this Court accepts the factual findings of
the district court unless they are clearly erroneous. Wood, 106 F.3d at 945.
Defendants proffered evidence regarding Rules and Jimersons pattern of
behavior was introduced to undermine the troopers credibility. Credibility is a
factual determination, and the record supports the district courts finding that the
troopers were credible. Defendants proffered evidence does not demonstrate that
the district courts findings were clearly erroneous. As the district court
concluded, it only shows that the troopers follow a routine, not that defendant
did not commit a traffic offense. (Appellants App. at 22 n.1.) Defendants
statement that he did not commit a traffic offense is similarly subject to a
credibility determination, which the district court decided to his detriment.
Defendant has not demonstrated that either of these factual determinations are
clearly erroneous, which precludes a claim of prejudice on that basis.
Defendant also alleges that he has been prejudiced by a violation of the
Court Reporters Act. This act requires that all proceedings in criminal cases
held in open court be recorded verbatim by shorthand or mechanical or electrical
means. United States v. Haber, 251 F.3d 881, 889 (10th Cir. 2001) (citing 28
U.S.C. 753(b)). Before this court will reverse a criminal conviction due to
violations of the Court Reporters Act, an appellant must demonstrate specific
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prejudice. Id. at 890. Based on the above analysis, we conclude defendant was
not prejudiced by the district courts use of its statement of the facts.
IV
The decision of the district court denying defendants motion to suppress is
AFFIRMED, and the district courts denial of defendants motion to approve his
statement of the facts under Fed. R. App. P. 10(c) is AFFIRMED.

ENTERED FOR THE COURT

Carlos F. Lucero
Circuit Judge

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