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United States v. Vance

United States Court of Appeals, Tenth Circuit

June 22, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JAMES THOMAS VANCE, Defendant-Appellant.


          Marc H. Robert, Federal Public Defender, Albuquerque, New Mexico, for Appellant.

          C. Paige Messec, Assistant United States Attorney (James D. Tierney, Acting United States Attorney, with her on the brief), Albuquerque, New Mexico, for Appellee.

          Before PHILLIPS, KELLY, and MURPHY, Circuit Judges.



         During a traffic stop, an officer found a large quantity of drugs in a vehicle driven by James Vance. A grand jury indicted Vance for possession of at least 500 grams of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Vance filed a motion to suppress the methamphetamine as the fruit of an illegal traffic stop; the district court denied Vance's suppression motion. Vance entered into a conditional guilty plea, preserving the right to appeal the district court's denial of the suppression motion. See Fed. R. Crim. P. 11(a)(2). On appeal, Vance asserts: (1) his conduct did not amount to a violation of N.M. Stat. Ann. § 66-7-317(A) because his lane change did not pose a safety risk to, or have an actual affect on, nearby traffic; and (2) even assuming a lane change that does not pose a hazard to another vehicle can amount to a violation of § 66-7-317(A), officers lacked reasonable suspicion to believe he failed to confirm the safety of his lane change before making it. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the order denying Vance's motion to suppress.


         A. Factual Background

         On September 18, 2015, Vance was driving a car on Interstate 40 near mile marker 145. This stretch of highway covers a long hill; it has three lanes to allow drivers to pass trucks without impeding traffic. As Vance reached the top of the hill, he was traveling in the center lane at the posted speed limit.[1] Using his turn signal, Vance moved into the left lane to pass a vehicle in the center lane. He then used his turn signal and "darted" from the left lane to the right lane, without pausing in the center lane. The district court found Vance could not have determined whether his lane change could be made with safety because the vehicle he passed blocked his view. Nevertheless, that car did not have to brake and the lane Vance entered was unoccupied.

         Detective Rael of the Bernalillo County Sheriff's Department was on the highway in a marked vehicle at the relevant time. He decided the lane change violated N.M. Stat. Ann. § 66-7-317(A)[2] and pulled Vance over. Rael's report cited Vance's failure to stop between two lanes as the reason for the traffic citation. Rael issued a warning citation for the improper lane change and asked Vance for permission to continue to speak with him. When he noticed the smell of marijuana emanating from the vehicle, Rael obtained consent to conduct a search. Rael found methamphetamine in the trunk and in the driver's side door. Thereafter, a federal grand jury indicted Vance for possession with intent to distribute at least 500 grams of methamphetamine.

         B. Procedural Background

         Following his indictment, Vance filed a motion to suppress. He argued the stop of his vehicle was not valid because the conduct observed by Rael (i.e., Vance's failure to establish himself in the center lane while moving from the left to the right lane) did not amount to a violation of § 66-7-317(A). In response, the government did not contest Vance's assertion that failure to establish a vehicle in a center lane while moving from the left to the right lane does not amount to a violation of § 66-7-317(A). Instead, it claimed Rael's conclusion that Vance's conduct violated § 66-7-317(A) amounted to a reasonable mistake of law. The government asserted the traffic stop was, therefore, valid under the rule set out in Heien v. North Carolina, 135 S.Ct. 530, 536 (2014) ("The question here is whether reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition. We hold that it can."). In reply, Vance agreed that the analysis of an officer's mistaken interpretation of law was governed by Heien. He argued, however, that § 66-7-317(A) unambiguously authorizes a lane change "so long as it's done safely . . . and there is no evidence that [his] lane change was done unsafely." For that reason, he asserted Rael's legal mistake was not objectively reasonable.

         The district court held a hearing on Vance's suppression motion. During his opening remarks, Vance asserted the parties did not dispute the facts and claimed the sole issue before the court was whether Rael's mistaken interpretation of § 66-7-317(A)-that it precluded a move from the left lane to the right lane without a stop in the center lane-was objectively reasonable. As to that issue, Vance (1) claimed analysis of the reasonableness of a mistake of law is appropriate only if the criminal statute at issue is ambiguous, and (2) maintained § 66-7-317(A) is clear and unambiguous. That is, he asserted the statute requires only that the driver ascertain the safety of any move from one lane to another. Vance further asserted there was no evidence suggesting his particular lane changes were made in an unsafe manner. In its opening remarks, the government backed away from its previous concession that Vance's conduct did not amount to a violation of § 66-7-317(A). It explained that after talking with Rael the day before, its position was that Rael based the stop on Vance's failure to ascertain that his lane change was safe, not on a belief the law always requires a pause in the center lane. That is, the government argued the presence of a car in the middle lane prevented Vance from ascertaining whether there was a car in the right lane before he moved into that lane. For that reason, the government believed the evidence would not, in fact, show any mistake of law.[3] Thus, under the government's view, Heien would only become relevant if the district court concluded Rael had not, in fact, witnessed a traffic violation.

         The government then called Rael to the stand. He testified that on the morning of the traffic stop he was driving on Interstate 40 near mile marker 140. The road was "relatively busy," because it was a weekday and people were commuting into Albuquerque. There are two large hills in the area, which cause many trucks to slow down. This stretch of highway has three lanes of traffic, with the left lane dedicated to passing. Rael saw Vance's vehicle traveling in the center lane. Vance was traveling at or slightly over the speed limit of seventy-five miles per hour. Vance engaged his turn signal and passed a vehicle by moving from the center lane to the left lane. Vance then signaled again, after which he "darted" from the left lane, through the center lane, and into the right lane. "The problem with this," Rael explained, "is as he's passing the other vehicle, he can never establish a safe travel into the [right] lane." From Vance's position in the left lane, he could not see clear to the right lane because of the vehicle he passed in the center. According to Rael, "[w]hether [Vance] looked in his rearview mirror or side-view mirror, we know when you drive there are dead spots within the vehicle, and you have to establish that it's safe before you make your turn and/or change of lane." Although the car Vance passed did not have to brake when Vance crossed in front of it, there were several trucks on the roadway at the time of the lane change. Thus, when Rael initiated the stop, he had to slow down and let other traffic pass him before pulling off to the shoulder.

         Vance pressed Rael as to whether Vance could have ascertained the safety of his actions by looking in the rearview mirror before initiating the lane change, asking whether "if he did that, that would be fine, would it not?" Rael responded, "No, it would not." Rael testified he stopped Vance and cited him for not being able to make the change safely, because Rael "knew [Vance] couldn't see around a different car." At the conclusion of Vance's cross-examination of Rael, the district court asked Rael whether he stopped Vance "because he made an unsafe lane change" or "because he didn't pause in the lane when he made his change?" Rael testified he stopped Vance for an unsafe lane change. Rael explained that in writing the citation, he "just defined what [Vance] didn't do, if that makes sense."

         In closing, the government clarified it was "not asserting that it's necessary to establish a lane before going on to a subsequent lane" but, rather, that in this particular case the presence of the white car in the center lane made Vance's lane change unsafe. Because the stop was valid pursuant to the explicit terms of § 66-7-317(A), the government argued the district court would need to perform an analysis pursuant to Heien only if the district court found that Rael had misinterpreted the law (in some way not specified by Vance at the evidentiary hearing). In his closing, Vance argued Rael did not have reasonable suspicion for the stop because it was "purely speculative from the detective's standpoint as to what [Vance] had seen or done before he made those lane changes." He asserted the right lane was "open the entire time" and there was no violation because "there were no other cars coming."[4]

         Three months after the conclusion of the evidentiary hearing, the district court issued an order denying Vance's suppression motion. The district court found, based on Rael's testimony, that "Vance could not have adequately determined whether his lane change could be made with safety, because a white passenger vehicle blocked his view." Vance's failure to "ensure that the right lane was unoccupied" constituted a violation of § 66-7-317(A)'s requirement that a driver ascertain the safety of any movement before moving from the lane. "That Vance used his signal and drove at the speed limit does not render his lane change safe," noted the court, "as many drivers involved in side-swiping collisions can attest." Because Rael made no mistake regarding the applicable law, the district court concluded the parties' initial dispute over the applicability of Heien was "irrelevant."

         III. ANALYSIS

         A. Section 66-7-317(A) and Actual Disruption

         As the first issue set out in his appellate brief, Vance asserts that even assuming he could not see whether there was oncoming traffic in the right lane before he entered it, he did not violate § 66-7-317(A) because his lane change did not pose a safety risk to, or have an actual affect on, nearby traffic. Vance is not entitled to relief on this claim of error. His assertion that § 66-7-317(A) requires an actual disruption of traffic is waived. Furthermore, even assuming this court could disregard the waiver, Vance cannot show the district court committed plain error in failing to read an element of actual disruption into § 66-7-317(A).

         As specifically noted by the government, Vance failed to raise this argument before the district court. He did not raise it in his motion to suppress, in his reply brief in support thereof, or in his arguments during the suppression hearing. Nor did he file a motion after the suppression hearing asking the district court to take up the issue or file a motion for reconsideration after the district court issued an order denying suppression. Rule 12(b)(3)(C) of the Federal Rules of Criminal Procedure requires that a party raise a motion to suppress before trial. A party who fails to do so is only entitled to a review of the claim upon a showing of "good cause." Fed. R. Crim. P. 12(c)(3). Failure to comply with the timeliness requirement set out in Rule 12 constitutes a waiver. United States v. Burke, 633 F.3d 984, passim (10th Cir. 2011).[5] This waiver rule applies not only when a defendant fails to file a pretrial motion to suppress, but also when a defendant fails to assert a particular argument in a pretrial suppression motion. United States v. Gambino-Zavala, 539 F.3d 1221, 1227 n.2 (10th Cir. 2008). To avoid waiving a particular argument, the party must make "sufficiently definite, specific, detailed and nonconjectural factual allegations supporting his suppression claim" in his pretrial motion. Id. (quotation omitted).

         As noted above, Vance failed to make the argument he advances on appeal at any point in the district court proceedings. He has also failed to demonstrate good cause that might excuse this failure. Although he faults the government for altering its position at the suppression hearing and upsetting the parties' expectations, this assertion does not come close to demonstrating good cause. Vance never objected at the suppression hearing, asked for a continuance, or filed a supplemental suppression motion in the three months between the conclusion of the suppression hearing and the issuance of the district court's order denying suppression. Nor, thereafter, did Vance file a motion for reconsideration. See United States v. Randall, 666 F.3d 1238, 1241 (10th Cir. 2011) (recognizing that the Supreme Court has indicated motions for reconsideration are proper in criminal proceedings, even though not specifically authorized by the Federal Rules of Criminal Procedure). Vance has simply not advanced a good reason why he should be ...

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