FILED
                                                                  United States Court of Appeals
                                      PUBLISH                             Tenth Circuit

                       UNITED STATES COURT OF APPEALS                   January 27, 2014

                                                                      Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                        Clerk of Court
                         __________________________________

    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,
    v.                                                      No. 12-2099
    MICHAEL HARMON,

         Defendant – Appellant,
                       __________________________________

            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.
                    __________________________________





The Honorable R. Brooke Jackson, United States District Judge for the District of
Colorado, sitting by designation.
                                    I. INTRODUCTION

       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.

                                          II. FACTS

       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

                                              2
 
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. 

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




                                              3
 
had been weaving within the lane and because he crossed the fog line in the construction

zone.1

         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.2 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

1
  The latter explanation was mistaken. Later, Officer Lucero acknowledged that he saw
Mr. Harmon cross the fog line before the construction zone. He attributed his
misstatement to the fact that he was nervous.
2
  In his briefs to this Court, Mr. Harmon argues that the resulting search exceeded the
scope of the traffic stop’s underlying justification. However, counsel conceded at oral
argument that “it was a consensual search” and that we need not address Mr. Harmon’s
arguments about the scope of the search exceeding the initial justification. The issue
before us is whether the stop was justified, not whether the consensual search that
followed was proper.
                                             4
 
summarize those that were preserved in his appeal. First, he argued that the traffic stop

was not supported by reasonable suspicion of a violation of New Mexico’s lane statute.

Second, Mr. Harmon challenged Officer Lucero’s credibility by pointing to specific

instances of Officer Lucero’s behavior during the traffic stop.

       The District Court denied the motion to suppress. In so doing, it made extensive

factual findings. The court found Officer Lucero to be a credible witness. It also found

that Mr. Harmon “swerved” before Officer Lucero initiated the traffic stop, although the

term “swerve” was actually introduced in the question of an Assistant United States

Attorney to which the officer assented. Vol. I, DNM 63; Vol. III, DNM 10. The district

court concluded that Officer Lucero had reasonable suspicion that a violation of the lane

statute was occurring or that Mr. Harmon was intoxicated or fatigued. Vol. III, DNM

30.3

       A few months after Mr. Harmon was sentenced he filed motions to withdraw his

plea and to reopen the motion to suppress based on information regarding a different

traffic stop conducted by Officer Lucero in United States v. Sheridan, No. CR 10-0333

JC. Vol. III, DNM 122. Mr. Harmon claimed Officer Lucero’s actions in the Sheridan

case undermine his credibility and provide impeachment evidence that should have been


3
  New Mexico’s prohibition on driving under the influence is codified at N.M. Stat. § 66-
8-102. Mr. Harmon contends that the district court based its conclusion solely on the
existence of reasonable suspicion of a violation of the lane statute and not on a reasonable
suspicion of driving while impaired. While it is true that the district court concluded its
analysis of this issue by pointing to “reasonable suspicion [of] a violation of N.M. Stat. §
66-7-317,” Vol. III, DNM 34, the order repeatedly refers to Officer Lucero’s suspicion of
impairment, Vol. III, DNM 30-31. The district court could have been more explicit in its
reliance on the impairment statute, but that reliance is undoubtedly there.
                                             5
 
disclosed before Mr. Harmon’s suppression hearing. Specifically, during this earlier,

unrelated traffic stop, Officer Lucero informed the dispatcher that the stop was motivated

by a tip from the DEA. He also asked that the dispatcher omit that information from the

Computer Aided Dispatch (“CAD”) report. Unmoved by this peek behind the law

enforcement curtain, the District Court denied Mr. Harmon’s motion, finding that this

newly uncovered evidence possessed neither exculpatory nor impeachment value, nor

was it material to Mr. Harmon’s defense. Vol. III, DNM 218.

       On appeal to this Court, Mr. Harmon renews his arguments that his motion to

suppress ought to have been granted because Officer Lucero lacked sufficient reasonable

suspicion to make the initial traffic stop; that the scope of the search exceeded the initial

justification for the stop (but see 

); that his motion to reopen ought to have been

granted in light of Officer Lucero’s behavior in the Sheridan case; and finally that he

received ineffective assistance of counsel in entering into his plea agreement.

                                       III. DISCUSSION

       A.     Reasonable Suspicion for the Stop

       Here, the district court found two potential justifications for Officer Lucero’s stop

of Mr. Harmon: reasonable suspicion of violating the lane statute and reasonable

suspicion of driving while intoxicated or fatigued. While we are unable to forecast with

certainty how the New Mexico Supreme Court would apply the lane statute in this case,

we nonetheless agree that Officer Lucero had reasonable suspicion to stop the vehicle on

suspicion of impairment under New Mexico law.



                                              6
 
       In reviewing a district court’s denial of a motion to suppress evidence, we apply

two standards of review. The district court’s factual findings receive clear error review.

In light of those facts, we review the reasonableness of the underlying seizure de novo.

United States v. McHugh, 

, 1255 (10th Cir. 2011) (quoting United States v.

Worthon, 

, 1178 (10th Cir. 2008)). We review the evidence in the light

most favorable to the government. 

stop is a seizure for purposes of Fourth Amendment analysis, United

States v. Bradford, 

, 1156 (10th Cir. 2005), and the “reasonable suspicion”

standard from Terry v. Ohio applies. United States v. Winder, 

, 1133 (10th

Cir. 2009) (citing Terry v. Ohio, 

(1968)). An investigatory stop “is justified at

its inception if the specific and articulable facts and rational inferences drawn from those

facts give rise to a reasonable suspicion a person has or is committing a crime.”

. We look to the totality of circumstances to determine

whether reasonable suspicion exists. 

This is an objective inquiry, and an

officer’s subjective motivation for the stop “play[s] no role in ordinary [reasonable

suspicion] Fourth Amendment analysis.” Whren v. United States, 

, 813

(1996); see also 

.

       In applying these standards, we defer to the reasonable inferences of law

enforcement officers. 

. Generally an officer’s reasonable

mistake of fact may support a finding of reasonable suspicion whereas a mistake of law

usually cannot support such a finding. United States v. Orduna-Martinez, 

,

1137 (10th Cir. 2009); United States v. Tibbetts, 

, 1138 (10th Cir. 2005)

                                             7
 
(“we have also held that failure to understand the law by the very person charged with

enforcing it is not objectively reasonable”).

         According to the district court and the government in its appeal, Officer Lucero

had reasonable suspicion that Mr. Harmon violated N.M. Stat. Ann. § 66-7-317 or of

driving while impaired when the tires of Mr. Harmon’s car crossed the white fog line that

separates the right lane of the interstate from the shoulder. The statute states in part 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.” N.M. Stat. Ann. § 66-7-317. At the time of the suppression

hearing, New Mexico’s state courts had not authoritatively interpreted this statute. As a

result, it was an open question whether crossing the white fog line a single time when

accompanied by weaving within the lane constituted a violation of the statute or could

give rise to a reasonable suspicion of a violation of the statute.4

         In the absence of a state court case interpreting the relevant state law, federal

courts must predict how the state court would interpret the statute in light of existing state

court opinions, comparable statutes, and decisions from other jurisdictions. United States

v. DeGasso, 

, 1145-46 (10th Cir. 2004). A district court’s statutory

construction of a state traffic law receives de novo review on appeal. United States v.

Valadez-Valadez, 

, 991 (10th Cir. 2008) (citing 

).

         To resolve the question of how the New Mexico Supreme Court would apply this

statute to Mr. Harmon’s case, the district court examined two unpublished decisions from

4
    This is still, to our knowledge, an open question in New Mexico.
                                                8
 
the Tenth Circuit that interpreted N.M. Stat. Ann. § 66-7-317. Both cases ultimately

concluded that when officers observe a car crossing the lane line and also observe other

behaviors that could indicate the driver might be unsafely operating a vehicle, then there

is reasonable suspicion of a violation of the statute. United States v. Bassols, 775 F.

Supp. 2d 1293 (10th Cir. 2011) (holding that an officer had reasonable suspicion to stop a

van that veered back and forth multiple times between the fog line and the center line,

crossing the fog line at least once in the process); United States v. Herrell, 41 F. App’x

224 (10th Cir. 2002) (holding that officers had reasonable suspicion of a violation of the

lane statute or of driving while impaired where a van twice crossed the centerline for no

apparent reason).

       On appeal, Mr. Harmon points us to several unpublished cases from the New

Mexico Court of Appeals applying the statute. 5 In the first, City of Farmington v.

Fordyce, No. 30,638, 

(N.M. Ct. App. Nov. 21, 2011), an officer

observed a pickup truck swing wide during a right turn, crossing the center line in the

process. Believing the driver to have violated N.M. Stat. Ann. § 66-7-317, the officer

stopped the pickup, during which he discovered that the driver was intoxicated. The New

Mexico Court of Appeals held that “the plain language of the statute does not make

touching or crossing the center line a per se violation of the statute.” 

Indeed,

5
 Mr. Harmon identified two cases, and we note that a third, State v. Lucero, No. 31,932,

, (N.M. Ct. App. Feb. 26, 2013), was released more recently. Because
these are not intervening decisions from the New Mexico Supreme Court, we examine
these cases merely for their persuasive value. See Kokins v. Teleflex, Inc., 

,
1295 (10th Cir. 2010) (noting that a federal court must look to “recent decisions of the
state’s highest court” when interpreting state law) (quoting Huddleson v. Dwyer, 

, 236 (1944)).
                                              9
 
the court went on to rule that “the officer had reasonable suspicion for the stop only if the

turn was unsafe and maintaining the line was practicable, or Defendant was otherwise

engaged in erratic driving that needed further investigation.” Fordyce, 

, at *4. Because those other circumstances requiring further investigation were

not present, the court concluded that the officer lacked reasonable suspicion to make the

stop. The driver in Fordyce was not, however, also weaving.

       In the second case, New Mexico v. Jamon, No. 31,578, 

(N.M.

Ct. App. June 5, 2012), an officer observed a car cross over the center line, veer back to

touch the shoulder line, and then veer towards the center and back to the shoulder again.

The New Mexico Court of Appeals held that while Mr. Jamon could not be convicted of

violating N.M. Stat. Ann. § 66-7-317 under those facts, his driving did generate

reasonable suspicion that he violated the lane statute or was driving under the influence.

The Court of Appeals rejected Mr. Jamon’s argument that reasonable suspicion for a

violation of the statute only arises where the driving creates a danger.

       Finally, in the latest case, State v. Lucero, No. 31,932, 

(N.M.

Ct. App. Feb. 26, 2013), the New Mexico Court of Appeals found no reasonable

suspicion of a lane statute violation where a driver’s tires crossed the fog line three times

and touched it an additional two times over a two and one half mile span but there was no

traffic near the vehicle. 

(citing Archibeque v. Homrich, 

, 825

(N.M. 1975) (holding that the purpose of the lane maintenance statute is to protect the

motoring public from “head-on collisions or sideswiping” oncoming traffic)). This

arguably is inconsistent with the holding in Jamon which suggested that a car leaving its

                                             10
 
lane without an obvious reason could give rise to reasonable suspicion of a violation of

the lane statute. Lucero is notable, however, for at least one distinguishing fact.

Although the officer testified at the suppression hearing that the line crossings raised a

concern about impairment, the state did not address or argue that the possibility of

impairment was a basis for the stop. The state did raise the impairment issue on appeal.

The appellate panel acknowledged that the officer’s testimony potentially could support a

stop based upon reasonable suspicion of violating statutes prohibiting careless driving

and driving while impaired, but the state had not preserved that argument for appeal. 

contrast, the potential justification of suspicion of impairment was a basis of the

district court’s order.

       Lucero, in particular, seems to be at odds with the other cases from the Tenth

Circuit and the New Mexico Court of Appeals on the issue of what constitutes reasonable

suspicion for violation of the lane statute. That case, while it involved multiple crossings

of the lane line, indicates that such behavior does not create a reasonable suspicion of

violation of the lane statute. Moreover, it explicitly distinguishes Jamon as a case

involving reasonable suspicion of impairment, notwithstanding the fact that the Jamon

court held that multiple line crosses and weaving constituted reasonable suspicion of both

a violation of the lane statute and driving while impaired or fatigued. This apparent

disagreement muddies the waters regarding how the New Mexico Supreme Court would

apply the statute in this case.

       But luckily, we are not required to wade into that muddy water because we

conclude that under the facts of the instant case, Officer Lucero could have had a

                                             11
 
reasonable suspicion of impairment, and the district court included this justification in its

ruling. See, e.g., Herrell, 41 F. App’x at 230. We take it as factual that the officer

observed the vehicle weaving and, in one instance, crossing the fog line with the front

and rear passenger wheels. We also note that there is no evidence in the record indicating

difficult driving conditions or adverse weather that could have explained Mr. Harmon’s

driving errors. Cf. United States v. Gregory, 

(10th Cir. 1996) (holding that a

single isolated instance of a vehicle moving into the emergency lane on a mountain road

in windy conditions does not raise a reasonable suspicion of violating Utah’s identical

lane statute). The combination of these facts justifies a stop based on concern of

impairment under New Mexico law.

       B.       Scope of the Search

            Mr. Harmon argues in his brief that Officer Lucero’s investigatory stop

exceeded the scope of the initial justification, thereby violating the Fourth Amendment

and entitling him to suppression of the drugs discovered in the Intrepid. Not only must

the initial stop be justified, but the scope of the resulting detention must remain

reasonably related to the initial justification. 

; United

States v. Gonzales-Lerma, 

, 1483 (10th Cir. 1994) (holding that the officer

may request documents, run a computer check, and issue a citation before releasing the

detainee) (overruled on other grounds). Therefore once the officer has satisfied his initial

reasonable suspicions, “unless the officer obtains ‘a new and independent basis’ for

suspecting the detained individual of criminal activity, his investigation must end.”



                                              12
 


(quoting United States v. Peters, 

, 1522 (10th Cir.

1993)).

            However, as indicated above at note 2, counsel conceded during oral argument

that the search was consensual. An officer may continue questioning the driver if the

stop has transitioned from a detention to a consensual encounter. 

States

v. DeWitt, 

, 1502 (10th Cir. 1991).

       C.       Motion to Reopen and Reconsider the Motion to Suppress

       Mr. Harmon also contends that the district court improperly denied his motion to

reopen and reconsider the previous denial of the motion to suppress. In that motion, he

renewed his arguments about the lack of reasonable suspicion for the stop. He also

claimed that evidence regarding Officer Lucero’s communications with dispatch in an

unrelated case constituted impeachment material that should have been disclosed prior to

the suppression hearing. We review the denial of a motion to reopen for abuse of

discretion. United States v. Wiseman, 

, 1207-08 (10th Cir. 1999).

       As a foundational matter, due process requires that the prosecution disclose any

evidence favorable to the defendant and material to his or her guilt or punishment. Brady

v. Maryland, 

, 87 (1963). Evidence is considered “material” for Brady

purposes “only if there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been different. A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the outcome.” United

States v. Bagley, 

, 682 (1985). Evidence bearing on a witness’s credibility

may be material in some cases. Giglio v. United States, 

, 154 (1972)

                                             13
 
(“When the reliability of a given witness may well be determinative of guilt or innocence,

nondisclosure of evidence affecting credibility falls within this general rule.”) (quotation

marks omitted).

       Because the district court relied on Officer Lucero’s credibility in determining the

reasonableness of the search and denying the suppression motion, Mr. Harmon believes

evidence from the Sheridan case would have potentially changed the outcome of that

proceeding and thus, it was required to be disclosed under Bagley and Brady.

Specifically, Mr. Harmon believes that “Officer Lucero intentionally placed false

information into a police report and allowed another officer to use that same false

information in preparation of an affidavit to be filed in court.” Appellant Reply Br. 20.

His best argument is that Officer Lucero’s character for truthfulness is suspect given that

he instructed the dispatcher to keep the true motivation for the stop out of the report.

       Nevertheless, that argument is unavailing for several reasons. First, we agree with

the district court that it appears from the record in Sheridan that Officer Lucero did not

violate the Fourth Amendment in his search of Mr. Sheridan’s car. Vol. I, DNM 259-66.

Second, as far as we can tell there is no obligation that the CAD report be exhaustive. No

one has provided us any authority to indicate the existence of such an obligation, and in

fact, the district court noted at least one case suggesting there is no obligation to be

exhaustive. See United States v. Cannon, No. IP 05-52-CR-01-T/F, 

,

at *1 (S.D. Ind. Apr. 7, 2006). Third, law enforcement may at times have legitimate

reasons to keep certain information confidential, as in the case of keeping an



                                              14
 
investigation secret. See e.g., John Doe Agency v. John Doe Corp., 

, 156

(1989).

       Thus, we note that Officer Lucero was under no obligation to place every piece of

relevant information into the CAD report; he had a valid independent basis for his search

of Mr. Sheridan’s vehicle; and there were legitimate reasons that he might want to keep

confidential the DEA investigation leading to Mr. Sheridan’s vehicle. We note as well

that there was never any determination in the Sheridan case that Officer Lucero had done

anything improper. Indeed, although the defendant raised the issue, he later abandoned

it. In light of these facts, we cannot see how Officer Lucero’s behavior reflects on his

“character for truthfulness.” Fed. R. Evid. 608(b).6 Cf. United States v. Lee Vang Lor,

(10th Cir. 2013) (seeing possible impeachment material where an arresting

officer later, in an unrelated case, affirmatively lied to the dispatcher about the grounds

for a stop when no such grounds existed); United States v. Beltran-Garcia, 338 F. App’x

765, 771 (10th Cir. 2009) (finding impeachment value in evidence of a testifying

officer’s prior misconduct in 1) misrepresenting the extent of consent given to search a

house and 2) omissions in the officer’s reports of material facts).

       We therefore conclude that the district court did not abuse its discretion in

deciding that the evidence did not possess impeachment value and was unlikely to change

the outcome of the suppression hearing—a conclusion bolstered by the district court’s


6
 We recognize that the Federal Rules of Evidence do not apply to suppression hearings.
See Fed. R. Evid. 104(a). However, like the district court, we believe the standards
governing impeachment can help frame how much weight to give this purported
impeachment evidence from Sheridan.
                                             15
 
own explanation that the evidence did not change its mind about Officer Lucero’s

credibility. Vol. I, DNM 270-71. We can find no clear error requiring us to reverse the

district court’s denial of the motion to reopen.

       D.       Ineffective Assistance of Counsel

       Mr. Harmon’s argument is essentially that his original attorney should not have

counseled him to enter the plea agreement and failed to perform due diligence in

investigating the facts surrounding the traffic stop. We review these claims de novo.

United States v. Prows, 

, 691 (10th Cir. 1997).

       Claims of ineffective assistance of counsel should normally be brought in

collateral proceedings in order to fully develop a factual record for review. United States

v. Galloway, 

, 1240 (10th Cir. 1995) (en banc). In fact, when these claims

are brought on direct appeal they are “presumptively dismissible.” 

be

made for those “rare cases” needing “no further development.” 

not one of those rare cases. We have before us no opinion from the district

court on the performance of Mr. Harmon’s attorneys, nor do we possess many of the facts

we would need in order to determine whether the attorneys were deficient and whether

that deficient performance prejudiced Mr. Harmon. We have nothing more than Mr.

Harmon’s assertions. As a result, we reject Mr. Harmon’s claims regarding ineffective

assistance of counsel.

                                        IV.CONCLUSION

            This is a close and difficult case. However, in light of the district court’s factual

findings, we predict that the New Mexico Supreme Court would probably find that

                                                16
 
Officer Lucero had reasonable suspicion to stop Mr. Harmon for driving while impaired

in violation of New Mexico law. The judgments of the district court denying the motion

to suppress and motion to reopen are affirmed.




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