BALDOCK, Circuit Judge.
Where "other traffic may be affected," § 66-7-325 of the New Mexico Statutes requires a motorist changing traffic lanes to signal "continuously during not less than the last one hundred feet traveled by the vehicle" before the change. N.M. Stat. Ann. § 66-7-325(A) & (B). The New Mexico Supreme Court has construed § 66-7-325 to require "a signal even when there is only a reasonable possibility that other traffic may be affected by the signaling driver's movement." State v. Hubble, 146 N.M. 70, 206 P.3d 579, 584 (2009). The broader question in this case is whether a New Mexico highway patrol officer lawfully stopped Defendant Francisco Burciaga's vehicle based on a suspected violation of § 66-7-325, where Defendant, without timely engaging his directional signal, changed from the left to the right lane on the interstate after passing the officer's patrol car. The district court held the stop violated Defendant's Fourth Amendment right to be free from unreasonable seizures because the officer's testimony failed to establish that traffic "could have been affected" by Defendant's lane change absent facts not in evidence. United States v. Burciaga, No. 08-CR-1541-MV, Order at 18 (D.N.M., filed May 2, 2011) (unpublished) (hereinafter Burciaga). Consequently, the court granted Defendant's motion to suppress over 17 kilograms of heroin recovered as a result of the stop. The Government appeals pursuant to 18 U.S.C. § 3731. Our review of a motion to suppress based on a claimed Fourth Amendment violation is two-tiered: Considering the evidence in a light most favorable to the prevailing party, we first review the district court's factual findings only for clear error; we then review the court's determination of reasonableness de novo. See United States v. McGehee, 672 F.3d 860, 866 (10th Cir.2012). Mindful of these standards, we hold § 66-7-325 as applied to the facts provided the officer with an objectively justifiable basis for stopping Defendant's vehicle. Accordingly, we reverse.
The Government bore the burden before the district court of establishing by a preponderance of the evidence that reasonable suspicion supported the officer's stop of Defendant's vehicle. See United States v. Kitchell, 653 F.3d 1206, 1216 (10th Cir.2011). Consistent with the district court's factual recitation, the record reflects that on June 24, 2008 around 6:00 a.m., New Mexico highway patrol officer John Valdez was patrolling the two northbound lanes of I-25 near Raton, New Mexico. Relevant to our inquiry, Officer Valdez was traveling north in a 75-mph zone when he engaged his emergency lights and pulled onto the right shoulder to check on a maintenance truck moving so slowly that initially it appeared to be stopped. Once Officer Valdez saw the truck was moving, he disengaged his lights and merged back into the right lane of the interstate. At that point, Defendant, traveling in the left lane at a speed of around 75-mph, passed
N.M. Stat. Ann. § 66-7-325(A) & (B).
At the suppression hearing, the Government asked Officer Valdez whether the traffic in the vicinity of Defendant's lane change "could have been affected by his improper signal." Appellant's App'x at 101. Valdez answered yes as part of the following exchange:
Id. at 101-02. Defense counsel asked Officer Valdez whether a "perceptible effect on the traffic" resulted from Defendant's failure to signal when he changed lanes. Id. at 106. Valdez did not believe so, but said he could not testify as to the affect on the other drivers. He added that "it was an unsafe behavior, to change lanes without signaling properly, and giving the [traffic] behind ... or the traffic around ... ample time to know of [Defendant's] intentions to change lanes." Id. at 106-07. Valdez further testified his own "ability to drive safely" was not affected by Defendant's lane change but "could have been if I was either
Based on Officer Valdez's testimony, the district court ruled the Government failed to prove the officer "had an objectively reasonable suspicion that any of the traffic in the vicinity `may have been affected' by... Defendant's lane change[]." Burciaga at 12. That is to say Valdez, according to the court, lacked "an objectively reasonable suspicion that Defendant violated the turn signal statute when he moved into the right lane in front of the officer's vehicle." Id. at 17.
Id. at 17-18 (brackets in original).
We have no difficulty in this case with the district court's recitation of the facts as reflected in the record. The only issue before us is whether Officer Valdez's stop of Defendant's vehicle was reasonable within the meaning of the Fourth Amendment. Because an objectively justifiable basis for a traffic stop necessarily renders that stop reasonable, the dispositive inquiry is whether N.M. Stat. Ann. § 66-7-325 provided Officer Valdez with such basis.
In Hubble, the New Mexico Supreme Court addressed the question of whether a county deputy had reasonable suspicion to stop defendant's vehicle based on a violation of § 66-7-325. The state supreme court set forth the following facts:
Hubble, 206 P.3d at 582. Based on these facts, the trial court denied the defendant's motion to suppress. The New Mexico Court of Appeals affirmed. In an unpublished opinion, the appellate court apparently decided defendant did not violate § 66-7-325 by failing to signal his intention to turn. Nonetheless the state appellate court held the deputy's stop of defendant's vehicle was not unreasonable under the circumstances because "no officer in the field can be expected to parse the Legislature's language." Defendant's Petition for Writ of Certiorari, 2007 WL 6680370, at *7 (N.M., filed Sept. 24, 2007) (describing the intermediate appellate court's decision). The New Mexico Supreme Court disagreed, concluding defendant had indeed violated § 66-7-325 by failing to signal.
Unlike the state appellate court, the supreme court construed § 66-7-325(A)'s phrase "in the event any other traffic may be affected by such movement" to mean a driver must engage a turn signal "when there is a reasonable possibility that other traffic may be affected." Hubble, 206 P.3d at 584.
Id. at 585 (internal brackets and ellipses omitted). The supreme court explained the appellate court "required a greater show of effect [on other traffic] than the statute contemplates" Id. The State "was not required to prove that Deputy Francisco could have been affected, that he was affected, or that [d]efendant's turn presented a potential hazard; the statute only requires that the surrounding facts establish that there was a reasonable possibility that he may have been affected." Id.
The New Mexico Supreme Court described its interpretation of § 66-7-325 as consistent with the "policy and concerns... expressed in the New Mexico Driver Manual." Id. at 584.
Id. (quoting New Mexico Driver Manual 19 (2004)) (emphasis added). According to the state supreme court, the appellate court's reasoning "undermine[d] the policy behind driving safety by depriving non-signaling
In addressing Defendant's motion to suppress, the district court framed the issue as "whether ... the facts established at the evidentiary hearing would give rise to an officer's objectively reasonable suspicion that Defendant's failure to signal could have affected other traffic." Burciaga at 14 (emphasis added). The New Mexico Court of Appeals framed the issue in a similar fashion in Hubble when it asked whether the deputy "`could have been affected by [d]efendant's turn within the meaning of § 66-7-325(A).'" Hubble, 206 P.3d at 585. The New Mexico Supreme Court subsequently told us (and the appellate court) that the prosecution "was not required to prove" traffic "could have been affected" in order to establish a violation of § 66-7-325 for failure to properly signal. Id. The court reasoned such inquiry "unreasonably narrowed the reach of § 66-7-325(A)" and was not the equivalent of a "reasonable possibility that [traffic] may have been affected." Id. To be sure, Hubble is an exercise in semantics. It plainly tells us, however, that by requiring the Government to prove traffic in the vicinity of Defendant's lane change, i.e., the semi, the maintenance truck, and/or the officer's own patrol vehicle, "could have been affected," the district court "required a greater show of effect than [§ 66-7-325] contemplates."
So what measure of proof is necessary to create an objectively justifiable belief that a driver has violated a statute requiring the timely use of a turn signal where a "reasonable possibility" exists that other traffic "`may be affected'"? Id. at 584 (quoting N.M. Stat. Ann. § 66-7-325(A)) (emphasis omitted). We do not go so far as to construe Hubble as requiring a driver in all instances to signal before a lane change. Hubble suggests, in no uncertain terms however, that such measure is not extensive. The New Mexico Supreme Court explained: "[I]t is significant that the Legislature chose the phrase "may be affected" as opposed to "is affected," "will be affected," or "most likely will be affected."" Id. "We understand this to mean that the Legislature's intent was to provide § 66-7325(A) with a broad reach." Id. Illustrative of the statute's reach, the supreme court held defendant violated the turn signal statute despite the fact the deputy was not affected in any apparent fashion by defendant's right turn from a "T" intersection onto a county road, occurring "`after [the deputy] was well clear of the intersection.'" Id. at 585. The court based its holding upon the rationale that a driver intending to change course may affect not only other drivers' actions, but their "decision-making processes in the time leading up to the movement." Id. at 584 (emphasis added). This undoubtedly is because a driver intending to change lanes has no idea what is in the minds of nearby motorists. Only by properly signaling does a driver provide traffic "`time to react if needed.'" Id. "A driver, once given a visual cue that indicates another driver's intention, may decide to switch lanes, slow down, or prepare for a change in direction." Id.
Acknowledging but slighting Hubble's broad construction of N.M. Stat. Ann. § 66-7-325, the district court failed to account for the reasonable possibility that Defendant's failure to timely signal may have affected not only other driver's actions
But in this case, the Government did not even have to go so far as to establish that Defendant's lane change "most likely" would affect surrounding traffic. Hubble, 206 P.3d at 584. Rather the Government only had to prove a "reasonable possibility" existed that Defendant's lane change might do so. Id. The district court, as a result of its failure to heed the New Mexico Supreme Court's broad construction of § 66-7-325, "unreasonably narrowed the reach" of the statute, making it all but impossible for the Government to fit the evidence within its parameters. Id. at 585. For reasons Hubble explained, drivers on New Mexico roadways intending to change course must provide nearby motorists with "visual cues and ample decision-making time in their interactions" with traffic. Id. This is why the New Mexico Supreme Court decided that § 66-7-325 requires a driver sitting stationary at a "T" intersection providing county road access to signal an intention to turn when in the presence of one other vehicle traveling in a direct course along the county road. Obviously, the state court was unmoved by the fact that when sitting at a "T" intersection, a driver must turn to proceed forward — a fact motorists passing by that intersection surely understand. By this measure, we are loathe to conclude the same statute does not at least provide a patrol officer with reasonable suspicion to stop the driver of a vehicle passing traffic at 75-mph on the interstate when that driver "a little ways in front" fails to timely signal an intention to change lanes. See United States v. Tibbetts, 396 F.3d 1132, 1137 (10th Cir.2005) (explaining the lawfulness of a traffic stop depends on whether the officer "had reasonable suspicion of a violation, not whether there was actually a violation"). Accordingly, the district court's order granting Defendant's motion to suppress is reversed and this cause remanded for further proceedings not inconsistent with this opinion.
REVERSED and REMANDED.
BRISCOE, Chief Judge, dissenting.
I respectfully dissent. It was the government's burden to prove that Officer Valdez had reasonable suspicion that Francisco Burciaga had violated New Mexico's turn signal law. Because the government fails to point to "specific and articulable facts," Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), demonstrating a "`particularized and objective basis'" for believing that a violation occurred, Tibbetts, 396 F.3d at 1138 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)), I would affirm.
The most relevant fact must surely be the distance between Burciaga and any other traffic in the moments leading up to Burciaga's lane change.