United States of America v. Salvador Delfin-Colina, a/k/a Salvador Delfin-Colinas, Salvador Delfin-Colina

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 05-2127
_______________
UNITED STATES OF AMERICA
v.
SALVADOR DELFIN-COLINA,
a/k/a Salvador Delfin-Colinas,
Salvador Delfin-Colina,
Appellant
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. Criminal No. 04-cr-00149
District Judge: The Honorable Terrence F. McVerry
_______________
Argued March 28, 2006
Before: MCKEE and VAN ANTWERPEN, Circuit Judges.

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*Honorable Louis H. Pollak, Senior District Judge for the
United States District Court of the Eastern District of
Pennsylvania, sitting by designation.
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and POLLAK,* District Judge.
_______________
(Opinion Filed September 22, 2006)
_______________
Stanley W. Greenfield [ARGUED]
Greenfield & Kraut
1035 Fifth Avenue
Pittsburgh, PA 15219
Counsel for Appellant
Mary Beth Buchanan
Robert L. Eberhardt [ARGUED]
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
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OPINION OF THE COURT
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POLLAK, District Judge.
This matter comes before us on Salvador Delfin-Colina’s
appeal from a judgment of conviction for transportation of an

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1 On April 1, 2005, the District Judge sentenced Delfin-
Colina to time served. At that point Delfin-Colina had been in
the Allegheny County Jail for approximately ten months.
3
illegal alien, 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (A)(1)(B)(ii),
which was entered in the District Court for the Western District
of Pennsylvania on December 23, 2004, at the conclusion of a
bench trial.1 Delfin-Colina challenges the District Court’s pre-
trial order, entered November 10, 2004, denying his motion to
suppress evidence obtained from a traffic stop conducted by
Pennsylvania State Trooper Bradley Wagner. The District Court
had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons that
follow, we conclude that the District Court did not err in
denying Delfin-Colina’s motion to suppress, and hence we will
affirm the judgment of conviction.
I. Background
The following narrative relies on the District Court’s
findings of fact, which are largely based on undisputed
testimony given by Pennsylvania State Trooper Bradley
Wagner. At the time of the events at issue, Trooper Wagner was
an eight-year veteran of the Pennsylvania State Police. During
this period of service, Trooper Wagner wrote hundreds of traffic
citations and warnings. Appendix (“App.”) at 17. Also, as part
of his patrol duties, Trooper Wagner participated in a
Department of Homeland Security overtime program named
“STOP,” which requires officers zealously to enforce traffic
laws. App. at 14.

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2 Trooper Wagner testified, “Sure. I believe it obscures.
It’s a, it’s an item that hangs. It’s in the driver’s field of vision.
It’s not stationary. As you would drive down the road, it would
swing and it would be a distraction.” App. at 70.
3 Trooper Wagner also testified that “while you operate
the vehicle nothing is to be hanging from the rear-view mirror.”
App. at 42. He reiterated this point several times throughout his
testimony. App. at 34, 42, 43, 53, 54, 55, 68.
4
On May 27, 2004, Trooper Wagner was working a
“STOP” overtime shift. At 8:00 A.M., he was tasked to perform
traffic control at a traffic incident that occurred on Interstate 80
near Mercer, Pennsylvania. While performing these duties,
Trooper Wagner observed Delfin-Colina driving a red pickup
truck. App. at 14. During the approach of the truck, Trooper
Wagner “noticed what appeared to be a ‘necklace’ or ‘pendant’
hanging from the rear view mirror.” App. at 14. He perceived
this item to be low hanging, but “not quite touching the
dashboard.” App. at 15. Finally, Trooper Wagner believed that
the item had the potential to obscure the driver’s vision because
the item was not stationary. App. at 15.2
Trooper Wagner testified that he believed the object
hanging from the rearview mirror to be a violation of 75
Pennsylvania Consolidated Statutes § 4524(c). He further
testified that it was his understanding that “anything” hanging
from a rearview mirror is a violation of § 4524(c).3 App. at 15.
Section 4524(c) provides:
Other obstruction. – No person shall drive any

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motor vehicle with any object or material hung
from the inside rearview mirror or otherwise
hung, placed or attached in such a position as to
materially obstruct, obscure or impair the driver’s
vision through the front windshield or any manner
as to constitute a safety hazard.
Trooper Wagner’s understanding of this Pennsylvania Statute
was flawed. An object hanging from the inside rearview mirror
does not contravene § 4524(c) unless it is positioned in such a
way as to “materially obstruct, obscure or impair the driver’s
vision through the front windshield.” Id.; see also Com. v.
Felty, 662 A.2d 1102, 1105 (Pa. Super. Ct. 1995).
Based on his flawed understanding of § 4524(c), Trooper
Wagner conducted a traffic stop of the pickup truck. Once
Salvador Delfin-Colina’s truck was stopped, Trooper Wagner
obtained Delfin-Colina’s identification document (a Mexican
driver’s license) as well as identification documents (Mexican
election cards) from other occupants of the truck. Trooper
Wagner then advised Delfin-Colina that he had been stopped
because of the object – then discovered to be a crucifix –
dangling from the rearview mirror. At this point, the front-seat
passenger volunteered that he was a Puerto Rican native, but
that the rest of the truck’s occupants were illegal aliens.
Trooper Wagner had the truck wait for approximately ninety
minutes so that he could finish his traffic control duties. He then
had the truck follow him to the Mercer State Police barracks –
but stopping en route at McDonald’s so that the occupants of the
truck could get something to eat. Once the group arrived at the
police barracks, all of the illegal aliens were taken into custody

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4 Delfin-Colina did not appeal the District Court’s
rejection of his pretext argument.
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and transferred to the Pittsburgh office of the Immigration and
Customs Enforcement division. App. at 17. Though a “Notice
of Warning” for the rearview mirror obstruction vehicle code
violation was issued by Trooper Wagner approximately two
hours after the initial traffic stop, Trooper Wagner testified that
once he discovered that the occupants of the truck were illegal
aliens, that discovery “trumped” everything else. App. at 17.
The District Court found Delfin-Colina guilty of
knowingly transporting an illegal alien pursuant to 8 U.S.C. §§
1324(a)(1)(A)(ii) and (A)(1)(B)(ii). Delfin-Colina now argues
for reversal of the District Court’s denial of his motion to
suppress evidence obtained as a result of Trooper Wagner’s
traffic stop. Delfin-Colina argued before the District Court that
the traffic stop was (1) pretextual4 and (2) was without probable
cause “since the religious pendant which hung from the
Defendant’s rearview mirror was, in fact, no obstruction to the
Defendant’s visibility and safe driving.” Though finding that
“Trooper Wagner is mistaken in his belief that anything hanging
from a rearview mirror is a violation of the Pennsylvania
Vehicle Code,” the District Court reasoned that “the Defendant
is charged in the instant indictment with the crime of
transportation of an illegal alien in violation of [8 U.S.C.
§1324(a)(1)(A)(ii) and (A)(1)(B)(ii)] [so] when Trooper Wagner
saw the ‘necklace’ or ‘pendant’ hanging from the rearview
mirror, he had a reasonable and articulable suspicion that a
violation of the Pennsylvania Vehicle Code had occurred.”
App. at 21.

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II. Analysis
We review for clear error a district court’s factual
findings in a suppression hearing. United States v. Kiam, 432
F.3d 524, 527 (3d Cir. 2006) (citation omitted). We conduct a
plenary review of legal rulings and mixed questions of law and
fact. Id.
A
At the outset, we must address the question whether
reasonable suspicion or the higher standard of probable cause is
required to support an investigatory traffic stop under the Fourth
Amendment. The Fourth Amendment protects individuals
“against unreasonable searches and seizures.” U.S. Const.
amend. IV. A traffic stop is a “seizure” within the meaning of
the Fourth Amendment, “even though the purpose of the stop is
limited and the resulting detention quite brief.” Delaware v.
Prouse, 440 U.S. 648, 653 (1979); see also United States v.
Arvizu, 534 U.S. 266, 273 (2002); United States v. Wilson, 413
F.3d 382, 386 n.3 (3d Cir. 2005). Because an ordinary traffic
stop is analogous to an investigative detention, it has been
historically reviewed under the investigatory detention
framework first articulated in Terry v. Ohio, 392 U.S. 1 (1968).
See, e.g., United States v. Elias, 832 F.2d 24, 26 (3d Cir. 1987)
(describing “Terry-like traffic stop[s]”).
Under Terry and subsequent cases, “‘an officer may,
consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable, articulable
suspicion that criminal activity is afoot.’” United States v.

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Valentine, 232 F.3d 350, 353 (3d Cir. 2000) (quoting Illinois v.
Wardlow, 528 U.S. 119, 123 (2000)); see also United States v.
Sokolow, 490 U.S. 1, 7 (1989); United States v. Cortez, 449 U.S.
411, 417 (1981). Reasonable, articulable suspicion is a “less
demanding standard than probable cause and requires a showing
considerably less than preponderance of the evidence,”
Wardlow, 528 U.S. at 123, and only a “minimal level of
objective justification” is necessary for a Terry stop. Sokolow,
490 U.S. at 7.
The Terry standard was for many years accepted as the
standard governing run of the mill traffic stops. See, e.g.,
United States v. Velasquez, 885 F.2d 1076 (3d Cir. 1989)
(upholding traffic stop based on the officer’s “reasonable and
articulable suspicion that [the defendant] had broken the law by
speeding”). But, in 1996, dictum of the Supreme Court in
Whren v. United States, 517 U.S. 806, 810 (1996), raised some
doubt. “As a general matter,” said the Court, “the decision to
stop an automobile is reasonable where the police have probable
cause to believe that a traffic violation has occurred.” Id. at 810.
Was the Court, shifting gears, now requiring “probable cause”
as the predicate for a traffic stop? The consensus is to the
contrary. As Judge William Fletcher has recently observed, the
Second, Sixth, Eighth, Ninth, Tenth and Eleventh Circuits have
all “construed Whren to require only that the police have
‘reasonable suspicion’ to believe that a traffic law has been
broken.” United States v. Willis, 431 F.3d 709, 723 (9th Cir.
2005) (W. Fletcher, J., dissenting); see Holeman v. City of New
London, 425 F.3d 184, 189-90 (2d Cir. 2005); United States v.
Hill, 195 F.3d 258, 264 (6th Cir. 1999); United States v.
Navarrete-Barron, 192 F.3d 786, 790 (8th Cir. 1999); United

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5 It is true that quite recently, in Gibson v.
Superintendent of N.J. Dep’t of Law and Public Safety-Division
State Police, 411 F.3d 427, 452 (3d. Cir. 2005), this court said
“[g]enerally, the absence of reasonable suspicion renders a stop
(continued...)
9
States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir. 2000);
United States v. Ozbirn, 189 F.3d 1194, 1197 (10th Cir. 1999);
United States v. Chanthasouxat, 342 F.3d 1271, 1275 (11th Cir.
2003). The Ninth Circuit, in Lopez-Soto, closely
examined this question before concluding that reasonable
suspicion is all that is required to support a belief that a traffic
provision has been breached. Lopez-Soto, 205 F.3d at 1104-05.
The Lopez-Soto court first noted that “[p]rior to Whren, it was
settled law that reasonable suspicion is enough to support an
investigative traffic stop.” Id. at 1104 (citing Berkemer v.
McCarty, 468 U.S. 420, 439 (1984)). Second, the Lopez-Soto
court stressed that the Whren passage can be read to indicate that
probable cause is “sufficient to support a traffic stop, not . . .
necessary.” Id. Third, the Lopez-Soto court noted that the
Whren Court did not announce that it was creating a new rule as
would be expected were that the intent of the Court. Finally, the
Lopez-Soto court highlighted the facts in Whren, which
indicated that the arresting officer clearly possessed probable
cause to believe that a traffic law had been violated. Thus, the
Lopez-Soto court concluded that the Court’s “casual use of the
phrase ‘probable cause’ was not intended to set a new standard.”
Id.
While this court has not directly addressed the question
whether Whren has changed the law of traffic stops,5 we find

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5(...continued)
unlawful.” But the Gibson opinion did not discuss Whren, and
the Supreme Court case it cited – Alabama v. White, 496 U.S.
325, 329-30 (1990) – antedates Whren.
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persuasive the Ninth Circuit’s reasoning in Lopez-Soto. As
discussed in that opinion, there is little in Whren to suggest that
the Court meant to create a new probable cause standard in the
context of investigatory traffic stops. Instead, the Court in
Whren was responding to the situation before it – one in which
the officer obviously possessed probable cause. Indeed, though
the Court has never explicitly returned to the question post-
Whren, the Court has later made mention of brief, investigatory
stops of “persons or vehicles” in the context of reasonable
suspicion. United States v. Arvizu, 534 U.S. 266, 273 (2002).
This lends support to our understanding that Whren was not
conceived as altering the longstanding reasonable suspicion
standard recognized in the traffic-stop setting. Thus, we now
join our sister circuits in holding that the Terry reasonable
suspicion standard applies to routine traffic stops.
B
Delfin-Colina argues that, even under the permissive
reasonable suspicion standard, a mistake of law by the seizing
officer will render a traffic stop per se unreasonable under the
Fourth Amendment. For the reasons stated below, we do not
agree.
Though reasonable suspicion is a generally undemanding
standard, a police officer does have the initial burden of
providing the “specific, articulable facts” to justify a reasonable
suspicion to believe that an individual has violated the traffic

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laws. See Cortez, 449 U.S. at 416 (quoting United States v.
Brignoni-Ponce, 422 U.S. 873, 884 (1975)). And a reviewing
court must consider whether the “rational interferences from
those facts reasonably warrant [the] intrusion.” Terry, 392 U.S.
at 21. Ultimately, our mandate is to weigh “the totality of the
circumstances – the whole picture.” Sokolow, 490 U.S. at 8
(quoting Cortez, 449 U.S. at 417).
The Whren Court explained that a court should undertake
an objective review of the officer’s rationale for the
investigatory traffic stop. 517 U.S. at 806. That is, a court
should only look to whether specific, articulable facts produced
by the officer would support reasonable suspicion of a traffic
infraction. In Whren, two police officers observed a truck in a
“high drug area” that had stopped at a stop sign for an excessive
amount of time. The truck then turned without signaling and
sped off. Id. at 808. The officers gave chase, and – once they
caught up with and stopped the vehicle – one officer observed
a passenger holding two bags of what appeared to be crack
cocaine. Whren argued that the stop had not been justified by
probable cause to believe that the occupants were engaged in
illegal drug activity, and that the officers’ asserted ground for
approaching the vehicle – namely, to give the driver a warning
about traffic violations – was pretextual. Id. at 809.
The Court held that a stop was reasonable under the
Fourth Amendment where officers had probable cause to believe
that the petitioner had violated the traffic code, even if the
ultimate charge was not related to the traffic stop. Id. at 808-09.
The Court explained that “[s]ubjective intentions play no role in
ordinary, probable-cause Fourth Amendment analysis,” and that

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“we have been unwilling to entertain Fourth Amendment
challenges based on the actual motivations of individual
officers.” Id. at 813; see also Devenpeck v. Alford, 543 U.S.
146, 153 (2004) (“[The] subjective reason for making the arrest
need not be the criminal offense as to which the known facts
provide probable cause.”); Estate of Smith v. Marasco, 318 F.3d
497, 514 (3d Cir. 2003) (“Improper motive, however, is
irrelevant to the question whether the objective facts available
to the officers at the time reasonably could have led the officers
to conclude that Smith was committing an offense.” (citing
Whren, 517 U.S. at 813)).
Taken together, then, Terry and Whren stand for the
proposition that a traffic stop will be deemed a reasonable
“seizure” when an objective review of the facts shows that an
officer possessed specific, articulable facts that an individual
was violating a traffic law at the time of the stop. In other
words, an officer need not be factually accurate in her belief that
a traffic law had been violated but, instead, need only produce
facts establishing that she reasonably believed that a violation
had taken place. Consequently, a reasonable mistake of fact
“does not violate the Fourth Amendment.” Chantasouxat, 342
F.3d at 1276; see also Illinois v. Rodriguez, 497 U.S. 177, 185
(1990) (noting that factual determinations made by government
agents need not “always be correct,” but they always have to be
“reasonable”); United States v. Tibbetts, 396 F.3d 1132, 1138
(10th Cir. 2005).
Under this framework, though mistakes of fact are rarely
fatal to an officer’s reasonable, articulable belief that an
individual was violating a traffic ordinance at the time of a stop,

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many of our sister circuits have held that mistakes of law – even
reasonable ones – can render a traffic stop “unreasonable” under
the Fourth Amendment. For example, in United States v. Miller,
146 F.3d 274, 279 (5th Cir. 1998), the Fifth Circuit cited Whren
for the proposition that law enforcement officers have “broad
leeway to conduct searches and seizures regardless of whether
their subjective intent corresponds to the legal justifications for
their actions,” but that, correspondingly, “the legal justification
must be objectively grounded.” Id. Consequently, the court
held that a traffic stop was unreasonable because the alleged
traffic infraction – having a turn signal on without turning – was
not a violation of Texas law. Id.; see also Tibbetts, 396 F.3d at
1138 (agreeing with Miller, the Tenth Circuit ruled, that “failure
to understand the law by the very person charged with enforcing
it is not objectively reasonable); United States v. Lopez-Valdez,
178 F.3d 282, 288-89 (5th Cir. 1999) (holding unconstitutional
a traffic stop when the trooper pulled over a car on the mistaken
belief that driving with a broken taillight violated state law).
The Ninth Circuit, in Lopez-Soto, also agreed with the
Miller court’s rationale. In Lopez-Soto, the officer stopped the
defendant because the officer had police academy instruction
that the absence of a vehicle registration sticker visible from the
rear provided a reasonable basis for suspicion of a Baja
California traffic code violation. 205 F.3d at 1105. However,
the applicable statute, in fact, directed that the sticker be
displayed on the windshield, which is where Lopez-Soto had his
sticker. Id. at 1106. Because Lopez-Soto’s action “was not a
violation of Baja California law,” the court concluded that “the
stop before us in this case was not objectively grounded in the
governing law” and was therefore unconstitutional. Id.

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The Tenth Circuit, in Chantasouxat, joined the Lopez-
Soto and Miller courts. 342 F.3d at 1277-79. In that case, an
officer performed a traffic stop because he incorrectly believed
that a truck without a rearview mirror in the car was in violation
of Alabama and Birmingham vehicle codes. Id. at 1277. The
officer who performed the stop had written over a hundred
tickets for this particular violation, had been told by a magistrate
that the lack of a rearview mirror in a car was a violation, and
had also been trained that this was the law. Id. at 1279. The
court noted that, unlike in Lopez-Soto, Lopez-Valdez, or Miller,
the officer’s mistake of law was reasonable. Id. Nonetheless,
the court concluded that the reasonableness of the mistake of
law is the “wrong question.” Id. Rather, “the correct question
is whether a mistake of law, no matter how reasonable or
understandable, can provide objectively reasonable grounds for
reasonable suspicion or probable cause.” Id. The Tenth Circuit
held that “a mistake of law cannot provide reasonable suspicion
or probable cause to justify a traffic stop.” Id.
In each of the above cases, the specific, articulable facts
revealed that the alleged infractions upon which the vehicles
were stopped were not based in law. In other words, the
objective review of the record required by Whren showed that
the stopped individuals in each of these cases had not violated
any applicable statute or ordinance.
What these cases do not, however, say is that a mistake
of law by a police officer renders a traffic stop per se
unreasonable. Instead, a mistake of law is only unreasonable
when the officer does not offer facts that objectively show that
the identified law was actually broken. In situations where an

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objective review of the record evidence establishes reasonable
grounds to conclude that the stopped individual has in fact
violated the traffic-code provision cited by the officer, the stop
is constitutional even if the officer is mistaken about the scope
of activities actually proscribed by the cited traffic-code
provision. Therefore an officer’s Fourth Amendment burden of
production is to (1) identify the ordinance or statute that he
believed had been violated, and (2) provide specific, articulable
facts that support an objective determination of whether any
officer could have possessed reasonable suspicion of the alleged
infraction. As long as both prongs are met, an officer’s
subjective understanding of the law at issue would not be
relevant to the court’s determination.
C
With these principles in mind, we hold that Trooper
Wagner possessed reasonable suspicion to conduct the traffic
stop of Delfin-Colina. Trooper Wagner testified that he was
doing traffic control when he noticed what appeared to be a
necklace or pendant hanging from the rearview mirror. The
hanging item was long enough to almost touch the dashboard,
and Trooper Wagner believed the item was not stationary and
was thus obscuring the driver’s vision. This information led
Trooper Wagner to conclude that the truck driver was violating
§ 4524(c), which provides that a motor vehicle may not be
driven “with any object or material hung from the inside
rearview mirror or otherwise hung, placed or attached in such a
position as to materially obstruct, obscure or impair the driver’s
vision through the front windshield or any manner as to
constitute a safety hazard.” Based on this understanding,

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Trooper Wagner stopped the truck.
Viewed objectively, Trooper Wagner has met his burden
to provide specific, articulable facts showing that an officer
would reasonably believe Delfin-Colina was in violation of §
4524(c). Section 4524(c) prohibits, inter alia, hanging items
from the rearview mirror if they “materially obstruct, obscure,
or impair the driver’s vision through the front windshield,” and
Trooper Wagner testified that he believed at the time that
Delfin-Colina’s vision was obstructed by the crucifix. More
importantly, an officer might have reasonably concluded that
such a low-hanging item would either obstruct or otherwise
impair the driver’s vision because of its potential to swing back
and forth, which was the specific concern cited by Trooper
Wagner. Indeed, because of this significant potential for
swinging to and fro, anything that hangs such that it is almost
touching the dashboard would, arguably, be a per se violation of
§ 4524(c). In any event, the legal justification is “objectively
grounded” and Trooper Wagner has met his burden of producing
specific, articulable facts showing that he possessed reasonable
suspicion of a violation under § 4524(c). Cf. Com. v. Felty, 662
A.2d 1102 (Pa. Super. Ct. 1995) (holding that an officer lacked
reasonable and articulable grounds to warrant a traffic stop
pursuant to § 4524(c) because the officer could not accurately
describe the object and, “most significantly,” the officer “never
testified that . . . the object materially obstructed, obscured, or
impaired the driver’s vision, or constituted a safety hazard”);
United States v. Johnson, 63 F.3d 242 (3d Cir. 1995)
(determining, pre-Whren, that officer’s testimony that he
conducted a traffic stop pursuant to § 4524(c) when he saw
several large air fresheners hanging from rearview mirror was

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more than sufficient to provide the officer with “articulable and
reasonable suspicion” of a § 4524(c) violation).
The only question then is whether Trooper Wagner’s
testimony that it was his understanding that anything hanging
from a rearview mirror constituted a violation of the
Pennsylvania Vehicle Code rendered the traffic stop
unreasonable. As the law only prohibits items attached to
rearview mirrors “in such a position as to materially obstruct,
obscure or impair the driver’s vision through the front
windshield or any manner as to constitute a safety hazard,”
Trooper Wagner made a significant mistake of law. For the
reasons given above, however, this mistake of law is
distinguishable from the ones made by the officers in Miller,
Lopez-Soto, Lopez-Valdez, and Chantasouxat because an
objective review of the facts shows that an officer who correctly
interpreted § 4524(c) and was in Trooper Wagner’s position
would have possessed reasonable suspicion to believe that
Delfin-Colina was in violation of § 4524(c). Because it is this
objective analysis that is controlling under Whren, Trooper
Wagner’s mistake of law did not render the traffic stop
unconstitutional. Holding otherwise would require this court to
engage in the type of subjective analysis that the Whren Court
singled out as irrelevant in the Fourth Amendment context.
III. Conclusion
For the foregoing reasons, we agree with the District
Court’s order of November 10, 2004, denying Delfin-Colina’s
motion to suppress evidence obtained from Trooper Wagner’s
traffic stop. Accordingly, we will affirm the judgment of

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conviction.

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