APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. NO. 1-10-cr-01760-JB-1).
Jerry A. Walz of Walz and Associates, Albuquerque, New Mexico, for Appellant.
Jennifer M. Rozzoni, Assistant United States Attorney, Albuquerque, New Mexico (Kenneth J. Gonzales, United States Attorney, on the brief) for Appellee.
Before GORSUCH and BALDOCK, Circuit Judges, and JACKSON[*], District Judge.
JACKSON, District Judge.
Probably most of us have, at some time in our lives, weaved within our lane while driving on the highway. Probably most of us have, at one time or another, crossed the " fog line" separating our lane from the shoulder of the road. This case asks us to decide at what point otherwise ordinary driving errors cross the line into driving that gives law enforcement reasonable suspicion to stop a car for a traffic violation.
Mr. Harmon, the appellant in this case, was driving a car across New Mexico with drugs in his spare tire. After weaving within his lane and crossing the fog line, a police officer decided to stop the car on suspicion of violating a New Mexico statute that requires a driver to stay in his or her lane whenever practical or, alternatively, on suspicion that the driver might have been intoxicated or fatigued. During the traffic stop, the officer discovered the drugs, and Mr. Harmon was arrested and charged with possession with intent to distribute. He moved to suppress the evidence before trial, but the district court denied that motion. On appeal, we are asked to decide, among other things, whether the stop was reasonable under the Fourth Amendment. This court has jurisdiction under 18 U.S.C. § 1291, and we affirm.
On a clear, calm morning in May of 2010, Officer Hermilo Lucero of the New Mexico Motor Transportation Police Department was patrolling Interstate 40 in eastern New Mexico when he noticed a silver Dodge Intrepid driven by Michael Harmon. According to Officer Lucero, Mr. Harmon was " weaving within [his] lane," and at one point his front and rear passenger tires " crossed over the outer white line" before coming back into the lane. Vol. III, DNM 9-10. Officer Lucero did not regard this movement as unsafe. He did, however, think touching the fog line
violated N.M. Stat. Ann. § 66-7-317 (" lane statute" ). He also wondered whether the driver was intoxicated or fatigued. Vol. III, DNM 8-9.
Officer Lucero did not pull over the Intrepid at that moment because, as he explained, the two cars were entering a construction zone, and it would not have been safe to stop the vehicle. Instead, he followed Mr. Harmon through the construction zone, two and a half miles, at which point he turned on his lights and initiated a traffic stop. Turning on the emergency lights activated the in-dash video recording system. The resulting video captured the one minute preceding the stop and all events following. During the minute preceding the stop, the video does not show the Intrepid weaving or crossing any lane lines.
Officer Lucero asked Mr. Harmon for his license, registration, and insurance. While standing next to the car, he noticed a " strong odor of air freshener emitting from the vehicle." Vol. III, DNM 14. Air freshener is sometimes used to mask the smell of illegal narcotics in vehicles. Id. at 14-15. Officer Lucero then asked Mr. Harmon to walk back with him to his police cruiser where he asked Mr. Harmon if he was tired or had been drinking, apparently receiving satisfactory negative answers. Officer Lucero did not administer any field sobriety tests. He told Mr. Harmon that he stopped him because he had been weaving within the lane and because he crossed the fog line in the construction zone.
Officer Lucero inquired about Mr. Harmon's travel plans, learning that he was driving from Arizona to Michigan to watch his daughter's graduation. He issued a written warning for failing to maintain a lane in violation of N.M. Stat. Ann. § 66-7-317 and told Mr. Harmon he was free to go.
Officer Lucero, however, was uneasy. He thought Mr. Harmon's travel plans seemed odd, and he was suspicious about the strong odor coming from the car. As Mr. Harmon walked back to his car, Officer Lucero called out to him and asked if he would mind answering a few more questions. Mr. Harmon returned to Officer Lucero's cruiser, and Officer Lucero asked if there were any illegal materials in the car. Mr. Harmon said there were not, and he consented to Officer Lucero's request to search the car. The ensuing search revealed packages of marijuana and cocaine hidden in the spare tire.
Mr. Harmon was charged with possession with intent to distribute 500 grams or more of cocaine and possession with intent to distribute 50 kilograms of marijuana. He entered a conditional plea and moved to suppress the evidence uncovered during Officer Lucero's search. At the hearing, Mr. Harmon made several arguments, but we will only summarize those that were preserved in his appeal. First, he argued that the traffic stop was not supported by ...