FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                               June 22, 2018
                                     PUBLISH                Elisabeth A. Shumaker
                                                                Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
 v.                                                   No. 17-2008
 JAMES THOMAS VANCE,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                  (D.C. NO. 1:15-CR-03553-JB-1)


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.


MURPHY, Circuit Judge.
                               I. INTRODUCTION

      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.

                                II. BACKGROUND

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

                                          -2-
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.

      1
       The district court was presented with two starkly different versions of the
events preceding the traffic stop that led to the discovery of methamphetamine in
Vance’s car. The district court specifically found that the account of the events
presented by the government at the hearing on the suppression motion was “more
credible” and was “internally consistent.”
      2
       Section 66-7-317(A) reads, in relevant part, as follows: “Whenever any
roadway has been divided into two or more clearly marked lanes for traffic . . . 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 . . . .”

                                          -3-
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.




                                         -4-
      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

      3
        In so arguing, the government recognized its argument differed from that
set out in its response to Vance’s motion to suppress. It also said it had hoped to
                                                                        (continued...)

                                         -5-
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

      3
       (...continued)
have Rael appear before the hearing to give Vance’s counsel a chance to speak
with him. The government indicated, however, that Rael’s work responsibilities
prevented an early arrival at the courthouse. Notably, Vance did not object to the
government’s change of theory, or to the presentation of Rael’s testimony at the
suppression hearing, and did not seek a continuance to interview Rael prior to his
testimony.

                                          -6-
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

                                          -7-
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



      4
       Rael did testify that Vance did not “interfere[] with” or “cut off” any
vehicle in the right lane. Notably, however, he did not testify the right lane was
open for any particular distance, no other cars were coming, or no other car on the
road could have moved into the right lane in the time it took Vance to pass the
white car and initiate his lane change. Instead, as noted above, Rael testified the
highway was “relatively busy” because of the morning commute and that there
were several trucks on the roadway at the time of the stop.

                                        -8-
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

                                          -9-
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

      5
        This court is aware that at the time United States v. Burke was decided,
Rule 12 used the term “waiver” in describing the consequences of a failure to file
a timely suppression motion and that the current version of Rule 12, adopted in
2014, omits the term. As Burke made clear, however, the determination that a
failure to timely file a suppression motion amounted to a waiver was not based
exclusively on the inclusion of the term “wavier” in Rule 12. 633 F.3d at 989-90.
Instead, it was supported by “a number of policy reasons for requiring defendants
to move to suppress evidence prior to trial and for deeming their failure to do so a
waiver.” Id. at 989 (quotation omitted). Furthermore, the Advisory Committee
notes accompanying the 2014 amendments to Rule 12 make clear that the intent
of the drafters in removing the term was not to render failures to file timely
suppression motions invariably subject to plain error review. Instead, the purpose
was to make clear that a finding of intent on the part of the defendant was not a
necessary predicate to Rule 12’s application:

             New Paragraph (c)(3) governs the review of untimely claims,
      previously addressed in Rule 12(e). Rule 12(e) provided that a party
      “waives” a defense not raised within the time set under Rule 12(c).
      Although the term waiver in the context of a criminal case ordinarily
      refers to the intentional relinquishment of a known right, Rule 12(e)
      has never required any determination that a party who failed to make
      a timely motion intended to relinquish a defense, objection, or
      request that was not raised in a timely fashion. Accordingly, to
      avoid possible confusion the Committee decided not to employ the
      term “waiver” in new paragraph (c)(3).

Given the Committee notes, this court has indicated, albeit in unpublished
dispositions, that Burke’s reasoning survives the 2014 amendments to Rule 12.
See, e.g., United States v. Shrader, 665 F. App’x 642, 648-49 & n.6 (10th Cir.
2016); United States v. Franco, 632 F. App’x 961, 963-64 & 963 n.1 (10th Cir.
2015). Although two circuits have reached the opposite conclusion, United States
v. Soto, 794 F.3d 635, 648-52, 655 (6th Cir. 2015), and United States v.
Sperrazza, 804 F.3d 1113, 1119 (11th Cir. 2015), Vance has not argued that the
2014 amendments to Rule 12 render Burke no longer good law. Absent any
argument at all on the part of Vance about the continued validity of Burke, this
panel remains bound by that decision. Thus, the waiver rule set out in Burke and
                                                                      (continued...)

                                        -10-
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


      5
      (...continued)
Rule 12(c)(3) controls the resolution of this issue.

                                         -11-
he should be excused from the consequences of his failure to raise before the

district court the issue he asks this court to address on appeal. Because Vance

waived the argument, and because he has failed to demonstrate good cause, this

court declines to review this argument on appeal.

      Even were this court to assume Vance’s failure to raise the issue below

does not amount to a waiver, he is still not entitled to relief on appeal because he

cannot show a plain error on the part of the district court. Indeed, he cannot show

error. Relying on New Mexico state court decisions, Vance argues it would be

unreasonable for any officer in Rael’s position to believe a lane change that did

not actually result in a safety risk to surrounding traffic amounted to a violation

of § 66-7-317(A). Having reviewed the pertinent authorities, this court concludes

Vance’s assertions in this regard are, at best, subject to significant debate.

Whether Vance is correct about the substance of New Mexico law is not,

however, dispositive. Vance can demonstrate the district court erred and he is

entitled to suppression only if it was unreasonable for Rael to believe that a

violation of § 66-7-317(A) could be based on a driver’s failure to ascertain the

safety of a lane change. See Heien, 135 S. Ct. at 534 (holding that a reasonable

mistake of law can “give rise to the reasonable suspicion necessary to uphold [a]

seizure under the Fourth Amendment”); see also United States v. Cunningham,

630 F. App’x 873, 876 (10th Cir. 2015) (unpublished disposition) (holding, under




                                         -12-
the rule set out in Heien, that this court need not resolve the state law question,

only whether the officer’s interpretation was reasonable).

      To answer the question required by Heien, this court looks to the text of

§ 66-7-317(A) and to any controlling interpretation given to it by the New Mexico

state courts. Looking first to § 66-7-317(A)’s text, we see nothing which would

indicate the statute contains an unstated actual-disruption element. Section

66-7-317(A) provides 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.” The

“first ascertained” language appears entirely incompatible with an approach that

evaluates the safety of the movement after-the-fact. The government argues

convincingly that driving behavior is unsafe when it increases the risk of an

accident, not only when it causes an accident. That is, requiring drivers to first

ascertain the safety of a movement focuses on the moment in which harm from a

blind lane change can still be avoided. 6

      6
       Although the appropriate focus is on whether it was reasonable for Rael to
view § 66-7-317(A) as not requiring actual disruption to traffic, rather than on the
absolute meaning of the statute, it is worth noting that Vance’s interpretation
seems to be at odds with other New Mexico traffic laws. His reading would
appear to render § 66-7-317(A) superfluous to the careless-driving statute, N.M.
Stat. Ann. § 66-8-114, which prohibits a person from operating a vehicle in a
careless manner, without “due regard for . . . attendant circumstances”). It would
also appear to ignore textual differences between § 66-7-317(A) and N.M. Stat.
Ann. § 66-7-325, which governs turn signals. Under § 66-7-325, a turn signal is
required only “in the event any other traffic may be affected by such movement.”
                                                                       (continued...)

                                            -13-
      Furthermore, contrary to Vance’s contentions on appeal, no New Mexico

state published appellate decision has held that a driver who fails to first ascertain

the safety of a lane change has not violated § 66-7-317(A) unless that movement

puts another vehicle in danger. 7 Vance cites four published state opinions:

Aragon v. Speelman, 491 P.2d 173 (N.M. Ct. App. 1971); Archibeque v. Homrich,

543 P.2d 820 (N.M. 1975); State v. Siqueiros-Valenzuela, 404 P.3d 782 (N.M. Ct.

App. 2017); and State v. Salas, 321 P.3d 965 (N.M. Ct. App. 2014). This court

has closely examined each of these cases and concludes they are so far removed

from the facts and circumstances of this case as to provide no real guidance to an

officer in Rael’s position. Aragon, a wrongful death case involving a collision

between a vehicle and a bicycle, deals with the propriety of an instruction on

negligence per se. 491 P.2d at 175. Aragon concluded such an instruction raised

a false issue because there was “no evidence that defendant-driver could not

safely change lanes when she did.” Id. at 176. Thus, Aragon did not present the

      6
       (...continued)
This language in § 66-7-325 seems to indicate that the New Mexico legislature
knows how to include an effect on other traffic as an element of the offense when
it wishes to do so.
      7
        Vance relies heavily on two unpublished decisions of the New Mexico
Court of Appeals. Unpublished decisions are not, however, precedential in New
Mexico. Instead, they are “written solely for the benefit of the parties to the
action.” Eastland Fin. Servs. v. Mendoza, 43 P.3d 375, 380 (N.M. Ct. App.
2002). If this court were tasked with definitively divining the meaning of § 66-7-
317(A), reference to these unpublished decision might be helpful. Vance has not
cited to any authority, however, indicating unpublished, nonprecedential decisions
can bear on the reasonableness of Rael’s interpretation of § 66-7-317(A).

                                         -14-
question whether a driver making an ultimately safe lane change without first

ascertaining its safety has violated the statute. Archibeque is also a wrongful

death case. 543 P.2d at 821. The evidence suggested the defendant fell asleep at

the wheel and drifted across the center line of the highway before veering right

and running off the road, killing himself and a passenger. Id. at 821-22.

Archibeque concluded only that a negligence-per-se instruction was not called for

because the harm or injury to the plaintiff was not of the type the legislature

through the statute sought to prevent. Id. at 825. Siqueiros-Valenzuela, 404 P.3d

at 782, was decided well after the events at issue here and, thus, simply does not

bear on the reasonableness of Rael’s reading of the relevant statute.

      The decision in Salas is worth a closer look. In contrast to Vance’s

suggestions, Salas actually supports the reasonableness of Rael’s interpretation of

§ 66-7-317(A). Salas argued, as Vance does now, that officers did not have

reasonable suspicion to stop him for violating § 66-7-317(A) “because no hazard

or peril was created by his actions.” Salas, 321 P.3d at 968 (quotation omitted).

The court rejected this argument. In so doing, Salas recognized “there may not

have been other traffic at the particular instance of Defendant’s erratic driving”

and the officers’ patrol car “was traveling southbound some distance behind”

Salas. Id. at 969. Despite these facts, one of the officers “identified himself as

other traffic on the roadway that was affected by the movements of [Salas’s]




                                         -15-
vehicle.” Id. Ultimately, without regard to the officer’s suggestions he might be

affected by Salas’s erratic driving, Salas concluded the stop was proper because

      Nothing in the record indicates that Defendant ascertained that his
      movements could be made with safety, that he was conscious of or
      focused on safety or risk, or that his condition was such that he
      would not continue to drive erratically. A reasonable inference could
      be drawn that Defendant drove in a manner that would indicate that
      he was not concerned about possible vehicular travel coming from
      behind or northbound. The officers had legitimate and reasonable
      suspicion that lane and illegal turn-related traffic offenses
      occurred. . . . We hold that under the totality of circumstances, after
      observing his erratic driving, the officers lawfully stopped Defendant
      based on the traffic offenses they observed . . . .

             Defendant’s attempt to negate reasonable suspicion by arguing
      that the officers acted under a mistake of law in regard to the traffic
      offenses for which he was stopped is of no avail. First, this argument
      ignores that Officer Gonzales stopped Defendant for reasons in
      addition to drifting over lane markers. The officer believed that
      Defendant may have been impaired. And the officer had concerns
      about Defendant’s illegal turn. Second, we see no mistake of fact or
      law. It is reasonably likely that had Defendant been cited for
      violating both lane-change and turn-related traffic offenses, he could
      have been convicted of the offenses. Third, any mistake could only
      have been one of fact, not law. Any possible mistake was only as to
      whether Defendant “first ascertained” whether his drifting and then
      turning could be made safely. Under the totality of circumstances
      here, this would not amount to a mistake of law. Mistakes of fact
      such as this do not negate reasonable suspicion.

Id. at 969-70 (citations omitted and emphasis added). As the emphasized

passages make clear, what was important to Salas’s conclusion that probable

cause existed to support a traffic stop based on a violation of § 66-7-317(A) was

that a reasonable officer could believe Salas failed to ascertain whether his

movements could be made with safety, not whether his movements caused a

                                        -16-
disruption to surrounding traffic. Thus, Salas offers no support to Vance’s

contention that only actual disruption of traffic will support a violation of the

relevant statute.

      The language of § 66-7-317(A) supports the conclusion that actual

disruption is not an element of the offense. The extant New Mexico case law

does not call that conclusion into question. Indeed, the decision in Salas strongly

supports that conclusion. Thus, under the Supreme Court’s analysis in Heien, the

district court did not plainly err in concluding Rael’s traffic stop of Vance was

supported by probable cause.

B. Failure to Ascertain Safety of Lane Change

      Vance asserts the district court erred in concluding Rael had reasonable

suspicion he failed to ascertain whether it was safe to move from the left lane,

through the center lane, into the right lane. In particular, Vance asserts Rael’s

“assumption” that he failed to so ascertain is not supported by the facts. Vance’s

appellate arguments in this regard, which appear to be based on a view of the

facts considered most favorable to him, 8 are not convincing.

      8
         The entirety of Vance’s substantive briefing of the issue, which is notable
for its lack of record citations, reads as follows:

      Given that there was no evidence of traffic near Mr. Vance other than
      the white car, Mr. Vance could easily have ascertained the safety of
      his lane change by checking the lanes behind him and to his right as
      he passed the white car. This would have been easy to do as Mr.
      Vance ascended a long steep hill. Having ascertained that there was
                                                                     (continued...)

                                         -17-
      When reviewing the denial of a motion to suppress based on an alleged

violation of the Fourth Amendment, this court

      considers the totality of the circumstances and views the evidence in
      a light most favorable to the government. We accept the district
      court’s factual findings unless those findings are clearly erroneous.
      The credibility of witnesses, the weight to be given evidence, and the
      reasonable inferences drawn from the evidence fall within the
      province of the district court. . . . [T]he ultimate determination of
      reasonableness under the Fourth Amendment is a question of law
      reviewable de novo.

United States v. Cooper, 654 F.3d 1104, 1123-24 (10th Cir. 2011) (quotation and

alterations omitted). “A traffic stop for a suspected violation of law is a ‘seizure’

of the occupants of the vehicle and therefore must be conducted in accordance

with the Fourth Amendment.” Heien, 135 S. Ct. at 536. To justify a traffic stop,

an officer needs “only reasonable suspicion—that is, a particularized and

objective basis for suspecting the particular person stopped of breaking the law.”

      8
       (...continued)
      no traffic moving in his direction for a considerable distance, Mr.
      Vance could have reasonably determined that it was safe to move
      into the right lane without pausing to check again from the middle
      lane. Even if Detective Rael reasonably assumed that Mr. Vance
      could not have checked his blind spot before moving from the center
      to the left lane, he could not have discerned whether Mr. Vance
      determined, prior to passing the white car, that no other vehicles
      were in the vicinity.

             When there is no nearby traffic that would be affected by a
      lane change, drivers may be able to ascertain that it will be safe to
      change lanes well before they actually do so. Under those
      circumstances, officers will often be unable to determine whether or
      not the driver has ascertained the safety of a lane change and should
      not be able to initiate a stop based on speculation.

                                         -18-
Id. (quotations omitted). “[T]he government bears the burden of proving the

reasonableness of the officer’s suspicion.” United States v. Hernandez, 847 F.3d

1257, 1263 (10th Cir. 2017). 9

      Vance argues what Rael observed does not give rise to reasonable suspicion

that he failed to ascertain the safety of the lane change in question. Vance asserts

he “could easily have ascertained the safety of his lane change by checking the

lanes behind him and to his right as he passed the white car.” See supra n.8. The

only record evidence on this point, however, is Rael’s testimony that Vance could

not adequately check the right lane from his position because Vance “couldn’t see

around a different car.” As for Vance’s suggestion that he could have surveyed

the situation before leaving the center lane and determined there was no traffic

moving in his direction for “a considerable distance,” see supra n.8, this

unsupported supposition is entirely inconsistent with Rael’s testimony that there

were “several trucks on the roadway at this time,” the highway was “relatively

busy” because of the morning commute, and his patrol car was approximately 150


      9
        Although this court has indicated the government bears the burden of
proving the reasonableness of a traffic stop, Hernandez, 847 F.3d at 1263, we
have also repeatedly held that “the ultimate burden is on the defendant to prove
that the challenged seizure was illegal under the Fourth Amendment.” United
States v. Long, 176 F.3d 1304, 1307 (10th ir. 1999); see also United States v.
Cooper, 654 F.3d 1104, 1123-24 (10th Cir. 2011); United States v. Cheromiah,
455 F.3d 1216, 1220 (10th Cir. 2006). It is unnecessary to attempt to reconcile
these two competing lines of precedent in this appeal because the government has
carried the burden, assuming it has the obligation to do so, of demonstrating the
reasonableness of the traffic stop.

                                        -19-
meters behind. Given the evidence in the record and the district court’s findings,

it was not unreasonable for Rael to believe, as a matter of fact, that Vance could

not “ascertain” the safety of his lane change before he attempted it.

      Even if there was a chance, however, that Vance could have ascertained the

safety of his lane change ahead of time, that chance would not defeat reasonable

suspicion. Reasonable suspicion does not require an officer to “rule out the

possibility of innocent conduct,” and “[e]vidence falling considerably short of a

preponderance satisfies this standard.” United States v. Winder, 557 F.3d 1129,

1134 (10th Cir. 2009) (quotation omitted). Rael did not need to know with

absolute certainty that Vance could not ascertain the safety of his lane change

ahead of time; he just needed a reasonable suspicion Vance had not done so. The

district court did not clearly err in finding that Vance “could not have adequately

determined whether his lane change could be made with safety, because a . . .

passenger vehicle [in the center lane] blocked his view.” Therefore, the traffic

stop at issue here was valid.

                                IV. CONCLUSION

      For those reasons set out above, the order of the district court denying

Vance’s motion to suppress is hereby AFFIRMED.




                                        -20-
17-2008, United States v. Vance

PHILLIPS, Circuit Judge, concurring and dissenting

I.       INTRODUCTION

         In this case, we construe a New Mexico criminal statute defining a traffic offense.

After that, we decide de novo whether the traffic stop was reasonable under the Fourth

Amendment, that is, whether Detective Rael had reasonable suspicion to stop Vance for

violating the statute. In doing so, we decide which party carries the burden of proof on

this issue. After that, we evaluate whether the evidence from the suppression hearing

satisfies that party’s burden.

II.      THE CRIMINAL STATUTE

         After stopping Vance’s car, Detective Rael issued him a warning citation for

violating N.M. Stat. Ann. § 66-7-317(A) (2015). That part of the statute provides as

follows:

         Whenever any roadway has been divided into two or more clearly marked
         lanes for traffic the following rules in addition to all others consistent
         herewith shall apply:

         A. 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. The preliminary language poses no problem—all agree that

the stop occurred on an uphill stretch of Interstate 40 that has three marked eastbound

lanes.

         But Vance argues that subsection A doesn’t prohibit motorists from darting across

multiple lanes of traffic—even motorists who don’t bother to look before darting—unless
they actually jeopardize safety. I agree with the majority that this position lacks merit.

Maj. op. at 9–17. Quite simply, the statute sensibly requires drivers to ascertain safety

before they dart lanes.

       Things get strange after that. Though in his traffic report, Detective Rael justified

the traffic stop by noting that Vance had crossed lanes “without establishing the No. 2

[middle] lane before proceeding to the No. 3 [right] lane,” the government has steadfastly

rejected a statutory interpretation requiring Vance to do so. In its written response to the

suppression motion, the government argued that Detective Rael’s establish-the-middle-

lane requirement was legally mistaken, but still objectively reasonable under Heien v.

North Carolina, 135 S. Ct. 530 (2014).

       Then at the suppression hearing, the government changed its argument. It now

argued that Vance had indeed violated the statute—by not first ascertaining the safety of

his multi-lane movement. In support, it contended, through Detective Rael’s testimony,

that the white car had obstructed Vance’s view of the right lane.

       So the upshot is that the government concedes a motorist can dart across multiple

lanes after once ascertaining the safety of doing so. Otherwise stated, motorists need not

establish their cars in each lane and remain there until again ascertaining the safety of

moving into the next adjacent lane. Under the government’s reading, the statutory

element that “a vehicle shall be driven as nearly as practical within a single lane” either

excludes lanes darted across or is met whenever four tires occupy the darted-across lane.

I don’t necessarily endorse that view, but for purposes of this case, at least, I will take the

government’s lead, reading the statute as allowing Vance to dart across as many lanes as

                                               2
he pleased, so long as, before crossing the first lane, he ascertained the safety of crossing

them all.

III.   REASONABLE SUSPICION

       So we take up right there. The government has argued that Detective Rael

possessed reasonable suspicion that Vance had violated the statute by crossing lanes

when the white car obstructed his view of the right lane. See maj. op. at 7 (alteration in

original) (“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.’”). And

as the majority notes, the district court agreed with Detective Rael that “Vance could not

have adequately determined whether his lane change could be made with safety, because

a white passenger vehicle blocked his view.” Id. at 8.

       The majority correctly notes that we must view the evidence in the light most

favorable to the government and accept the district court’s fact findings unless clearly

erroneous. Id. at 18. The majority also correctly places the burden on the government to

prove that Detective Rael had reasonable suspicion that Vance had violated § 66-7-

317(A).1 Maj. op. at 19-20. See, e.g., United States v. Lopez, 849 F.3d 921, 925 (10th Cir.

2017) (concluding that “[t]he government bears the burden of proving reasonable

suspicion” justifying continuing detention in a speeding stop ultimately leading to a

methamphetamine seizure); United States v. Burciaga, 687 F.3d 1229, 1230 (10th Cir.

2012) (“The Government bore the burden before the district court of establishing by a

       1
         This leaves me unsure why the majority partly bases its decision on Vance’s
failing to obtain testimony from Detective Rael about facts important to the government’s
establishing reasonable suspicion for the traffic stop. See maj. op. at 8 n.4.
                                              3
preponderance of the evidence that reasonable suspicion supported the officer’s stop of

Defendant’s vehicle [for failing to timely signal his lane change].”); United States v.

Valenzuela, 494 F.3d 886, 888 (10th Cir. 2007) (concluding that “[t]he government bears

the burden of proving the reasonableness of the officer’s suspicion” that a “particular

motorist violated any one of the multitude of applicable traffic and equipment regulations

of the jurisdiction,” here veering across lane markings under a Colorado statute much like

the New Mexico statute in Vance’s case).

       To meet its burden, the government needed to show that Detective Rael had

reasonable suspicion that Vance had failed to first ascertain the safety of crossing into the

right lane before doing so.2 That would be easy if Detective Rael had seen Vance’s car

cause other cars to brake or swerve. But it’s not so easy when Detective Rael concedes

that Vance passed the white car by a safe margin before crossing the middle lane and that

Vance encountered no automobile approaching nearby in the right lane.

       I conclude that Detective Rael lacked reasonable, articulable suspicion that Vance

violated the statute.3 What if everything had been the same that day, except that no white



       2
         Like the majority, I fully credit Detective Rael’s statement that Vance “couldn’t
see around a different car.” Maj. op. at 19. Detective Rael testified that Vance had “just”
passed the white car—safely. So it makes sense that when Vance began to change lanes,
the white car blocked a view the right lane on a direct line from his sight (so cars further
back on the road). But that doesn’t mean that Vance hadn’t already checked the trailing
traffic and seen none in play.
       3
          “Whether reasonable suspicion exists is an objective inquiry determined by the
totality of the circumstances, and ‘an officer’s subjective motivation for the stop play[s]
no role in ordinary [reasonable suspicion] Fourth Amendment analysis.’” United States v.
Salas, 756 F.3d 1196, 1201 (10th Cir. 2014) (alterations in original) (quoting United
                                              4
car was in the middle lane? Detective Rael would have lacked reasonable suspicion that

Vance had crossed into the right lane without looking.

       The presence of the white car doesn’t give a different result. Vance could have

ascertained the safety of moving into the right lane before passing by the white car to the

point where it would have partially obstructed his backward view.4 In the few seconds

from that point until Vance changed lanes, the semi-tractor-trailer trucks plodding uphill

wouldn’t have gained the speed of Indianapolis 500 race cars, passed the marked patrol

car, passed the white car, and occupied a segment of the right lane endangered by

Vance’s lane crossings. We need to recognize that automobiles in the right lane would

have had to make up considerable ground in a few seconds. Obviously, automobiles on

highways differ from birds on wires—they can’t just pop on and off at a given spot.

       And the government offered no evidence to support reasonable suspicion that

Vance had failed to ascertain the safety of crossing lanes before the white car obstructed

his view. Trooper Rael didn’t testify about Vance’s head movements in relation to his

rear-view mirror (and obviously Detective Rael couldn’t see Vance’s eye movements).

What Detective Rael did see was Vance obeying the traffic laws. What would give

Detective Rael reasonable suspicion that a law-abiding driver would dart into a lane he

hadn’t checked would be empty? Not Detective Rael’s general, unstartling testimony that

States v. Harman, 742 F.3d 451, 456 (10th Cir. 2014) (internal quotation marks
omitted)).
       4
        Even after Vance passed the white car by a sufficient distance to safely reenter
the middle lane, Vance would have seen much more than the white car in his rear-view
mirror. And whatever the white car obstructed in the right lane would have trailed the
white car, which Vance safely passed.
                                             5
other automobiles were somewhere on the long uphill stretch of highway when Vance

changed lanes, that “several trucks [were] on the roadway at this time,” or that the

highway was “relatively busy” because of the morning commute (the stop occurred at

10:30 a.m.). Automobiles behind Detective Rael were too far back to matter. And

Detective Rael never testified that any automobiles passed him between the time Vance

moved to pass the white car and the time Vance crossed into the right lane.

       I’m also troubled that this case differs from other reasonable-suspicion cases in an

important way. Detective Rael had nothing to investigate after stopping Vance. Nothing

about Vance or his car could help establish whether Vance had ascertained the safety of

his lane changes. Obviously the rental car had no camera capturing Vance’s head and eye

movements. So could Detective Rael stop Vance just to question him on this point? I see

no cases cited from the government authorizing stops to try to obtain confessions about

conceivable crimes—or in hopes of finding evidence of unknown, unrelated crimes,

evidence such as the smell of marijuana Detective Rael detected soon after the stop. We

shouldn’t authorize stops in such circumstances.




                                             6