The opinion of the court was delivered by: Susan Webber Wright United States District Judge
Defendant David Burnett ("Burnett") is charged with possession with intent to distribute 50 grams or more of methamphetamine and knowingly possessing a firearm in furtherance of drug trafficking. Before the Court is Burnett's motion to suppress evidence and statements (docket entry #18). The United States filed a response in opposition (docket entry #20), and the Court held an evidentiary hearing on Burnett's motion on March 29, 2007. The parties have filed post-hearing memoranda (docket entries #25, #26), and the matter is ready for decision. After careful consideration, and for the reasons that follow, the motion to suppress will be denied.
Based on testimony and evidence presented at the March 29 hearing, the Court makes the following findings of fact. On January 18, 2006, at approximately 9:10 a.m, Burnett was traveling east on Interstate 40 in Lonoke County, driving a 2005 Lincoln Navigator with a California license plate. Arkansas State Police Corporal Victor D. Coleman ("Coleman") observed Burnett's vehicle cross the right fog line into the right shoulder and then re-enter the interstate. Believing that Burnett had committed a lane violation, Coleman activated his blue lights and stopped Burnett.
Coleman requested Burnett's driver's license and registration and directed him to exit and stand behind the Lincoln Navigator. In response to questioning, Burnett told Coleman he had rented the Lincoln Navigator and was traveling home to Tennessee. Burnett stated that he had been in California shopping for antique car parts. He also stated that he was accompanied by another vehicle that left California ahead of him. Burnett was unable to produce a vehicle rental agreement, and he told Coleman that it might be in one of his bags or in the vehicle accompanying him. Coleman asked Burnett whether he had ever been arrested, and Burnett answered, "No." Coleman asked Burnett whether the contents of the vehicle belonged to him, and Burnett answered, "Yes." Coleman then asked whether Burnett had any drugs or guns in the vehicle, and Burnett answered, "No."
Next, Coleman sought Burnett's consent to search by asking, "Can I search the vehicle? Is that okay with you?" or "I am going to take a look in the car if that's okay with you." In either case, the Court finds that Coleman sought Burnett's consent to search. Coleman testified that Burnett answered "yes" in response to his request to search, and Burnett testified that he answered, "All right, okay." Additionally, the undisputed evidence shows that Burnett also responded with a hand gesture, which, the Court finds, reinforced Coleman's belief that Burnett was giving him permission to search the vehicle.
After Burnett's affirmative responses to Coleman's request to search, Coleman opened the passenger-side door and found an empty ammunition magazine in plain view on a console between the front seats. After finding the magazine, Coleman handcuffed Burnett for safety reasons and searched the back of the vehicle, where he found a locked money bag. Coleman asked Burnett if he had a key to the bag, and Burnett responded, "Not on me; I think it's in the other car."
Coleman placed Burnett in the patrol car and contacted Blue Lightening, an intelligence resource. After making initial contact with Blue Lightening, Coleman left the car, cut open the money bag with a knife, and discovered a vehicle rental agreement and methamphetamine. Coleman informed Burnett, who was sitting in the patrol car, that he was under arrest for possession of an illegal substance. Coleman then re-entered the patrol car and resumed his conversation with a Blue Lightening operator. Among other things, Coleman told the operator that Burnett had consented to the search. Coleman, and another officer who arrived on the scene, continued searching the Lincoln Navigator and found a gun and records documenting drug transactions.
Burnett seeks suppression of all physical evidence resulting from the search and "any statements made as a result thereof." Docket entry #25, at 12. In support of his motion, Burnett asserts that (1) Coleman lacked probable cause or reasonable suspicion to stop him, and (2) Coleman lacked probable cause, consent, or any valid basis to search the Lincoln Navigator.
Burnett argues that Coleman lacked probable cause to stop his vehicle because crossing of the fog line does not amount to a violation of Arkansas law. A traffic stop is reasonable under the Fourth Amendment if supported by either probable cause or reasonable suspicion that a traffic violation, however minor, has occurred. See U.S. v. Herrera-Gonzalez, 474 F.3d 1105, 1109 (8th Cir. 2007)(citing United States v. Washington, 455 F.3d 824, 826 (8th Cir.2006)). A determination of objective reasonableness is not to be made in hindsight, but by looking to what the officer reasonably knew at the time. Id. Additionally, an officer's actual motivation in making a stop is irrelevant in determining the validity of the stop. Id. (citing Whren v. United States, 517 U.S. 806, 813 (1996)).
At the suppression hearing, Coleman testified that he stopped Burnett for crossing the white fog line and driving on the right shoulder, in violation of Arkansas Code § 27-51-308. Section 27-51-308 sets forth the conditions during which one vehicle may overtake another on the right and provides, in part, that "in no event shall this movement be made by driving off the pavement or main-traveled portion of the roadway." Ark. Code Ann § 27-51-308(b)(2). Burnett argues that because Coleman did not observe him passing another vehicle on the right, Coleman could not have reasonably believed that he witnessed a violation of § 27-51-308.
Even if Coleman was mistaken that crossing the fog line is a violation of § 27-51-308, the stop was lawful if Coleman had probable cause to believe that Burnett violated any traffic law. See Lawyer v. City of Council Bluffs, 361 F.3d 1099, 1106 (8th Cir. 2004)(holding that an arrest during a traffic stop is lawful where an officer has probable cause to believe the subject violated any applicable statute, even one not contemplated by the officer a the moment of the arrest). Another Arkansas statute, Arkansas Code § 27-51-302, provides that whenever any roadway has been divided into two or more lanes, "[a] vehicle shall be driven as nearly as practical entirely within a single lane . . . ." Section 27-51-302 has been interpreted to prohibit crossing over the fog line, see U.S. v. Pulliam, 265 F.3d 736, 739 (8th Cir. 2001), and there is ...