United States v. Kenneth Wingle ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4401
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH A. WINGLE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:13−cr−00018-HEH-1)
Argued: March 20, 2014 Decided: April 10, 2014
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Peter Dean Eliades, ELIADES & ELIADES, Hopewell,
Virginia, for Appellant. Katharine M.E. Adams, UNITED STATES
ARMY JAG CORPS, Fort Lee, Virginia, for Appellee. ON BRIEF:
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
Brian R. Hood, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth A. Wingle appeals from the district court’s
decision affirming the magistrate judge’s denial of his motion
to suppress evidence seized during an inventory search following
a traffic stop and arrest. For the reasons set forth below, we
affirm the judgment of the district court.
I
Early on the morning of September 2, 2012, Wingle was
driving on Route 36 adjacent to Fort Lee, Virginia and within
the special territorial jurisdiction of the United States.
Wingle stopped at a red light, and Officer Brian Michaels, a
police officer with the Department of the Army, stopped next to
him in an unmarked patrol car. When the light turned green, both
cars accelerated with Wingle’s car leading. Officer Michaels
pulled up alongside Wingle’s car and noticed it drifting toward
his lane. Officer Michaels applied his brakes to avoid a
collision and observed Wingle looking down toward his lap and a
bluish-white light illuminated Wingle’s face and chest.
Officer Michaels initiated a traffic stop. Upon approaching
Wingle’s car, the officer noticed a strong smell of alcohol and
observed that Wingle had bloodshot eyes and that his speech was
unusually slow and deliberate. The officer then requested that
Wingle perform a field sobriety test; Wingle refused. Officer
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Michaels informed Wingle that he was under arrest for driving
under the influence of alcohol and asked him several times to
exit his vehicle. After Wingle repeatedly refused, Officer
Michaels forcibly removed him from the car and placed Wingle
under arrest.
During an inventory search of Wingle’s car, Officer
Michaels found a glass smoking pipe in the glove compartment
with what appeared to be (and was later confirmed to be)
marijuana residue in the bowl. Officer Michaels cited Wingle
with driving under the influence of alcohol, possession of
marijuana, resisting arrest, and failure to maintain his lane of
travel while driving.
Wingle was then charged in the United States District Court
for the Eastern District of Virginia with one count of operating
a motor vehicle under the influence of alcohol in violation of
18 U.S.C. § 13 and Va. Code. Ann. §§ 18.2-266ii and 18.2-270
(Count One); one count of possession of marijuana in violation
of 21 U.S.C. § 844(a) (Count Two); one count of resisting
arrest in violation of 18 U.S.C. § 111 (Count Three); one count
of driving while operating a handheld cellular device in
violation of 32 C.F.R. § 634.25(f) and Va. Code Ann. § 46.2-
1078.1 (Count Four); and one count of failure to stay within one
lane when operating a motor vehicle on a divided highway in
3
violation of 32 C.F.R. § 634.25(f) and Va. Code Ann. § 46.2-804
(Count Five).
Wingle moved the district court to suppress evidence found
during the search of his car, arguing that Officer Michaels
lacked probable cause or reasonable suspicion to initiate the
traffic stop. The federal magistrate judge heard argument and
denied Wingle’s motion. 1 Wingle then entered into a conditional
plea agreement with the government, agreeing to plead guilty to
Counts One and Two and reserving the right to appeal the
magistrate judge’s decision. In conformity with the plea
agreement, the magistrate judge adjudicated Wingle guilty with
respect to Counts One and Two and imposed a sentence consisting
of a $250 fine, a $25 special assessment, and one year of
probation on Count One, and a $25 special assessment and one
year of probation on Count Two. 2
Wingle appealed the magistrate judge’s decision to the
district court judge, and the district court judge affirmed.
Wingle timely appealed. We have jurisdiction under 28 U.S.C.
§ 1291.
1
The Federal Magistrates Act gives federal magistrate
judges consent jurisdiction over petty offenses and
misdemeanors. See 28 U.S.C. § 636(a)(3)–(5).
2
Also consistent with the terms of the plea agreement, the
government moved to dismiss the remaining counts against Wingle,
and the district court granted that motion.
4
II
When considering an appeal from a district court acting in
its capacity as an intermediate appellate court reviewing a
magistrate judge’s decision, we “apply to the magistrate
[judge’s decision] the same standard used by the district court”
judge on the first appeal. United States v. Peck, 545 F.2d 962,
964 (5th Cir. 1977).
In a consent case proceeding under 28 U.S.C. § 636(a)(3)–
(5), the scope of an appeal to the district court judge “is the
same as in an appeal to the court of appeals from a judgment
entered by a district judge.” Fed. R. Crim. P. 58(g)(2)(D).
Accordingly, the district court judge reviewed the magistrate
judge’s findings of fact for clear error and conclusions of law
de novo, viewing the evidence in the light most favorable to the
government. See United States v. McBride, 676 F.3d 385, 391 (4th
Cir. 2012). We apply the same standard. Id.
III
The Fourth Amendment guarantees “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const. amend.
IV. “Because an automobile stop is a seizure of a person, the
stop must comply with the Fourth Amendment’s requirement ‘that
it not be ‘unreasonable’ under the circumstances.’” United
5
States v. Wilson, 205 F.3d 720, 722–23 (4th Cir. 2000) (en banc)
(quoting Whren v. United States, 517 U.S. 806, 810 (1996)). “As
a result, such a stop ‘must be justified by probable cause or a
reasonable suspicion, based on specific and articulable facts,
of unlawful conduct.’” Id. at 723 (quoting United States v.
Hassan El, 5 F.3d 726, 729 (4th Cir. 1993)). “When an officer
observes a traffic offense--however minor--he has probable cause
to stop the driver of the vehicle.” Hassan El, 5 F.3d at 730
(quoting United States v. Cummins, 920 F.2d 498, 500 (8th Cir.
1990)). The reasonable suspicion standard is “less demanding
. . . than probable cause,” and requires only “‘specific and
articulable facts which, taken together with rational inferences
from those facts,’ evince ‘more than an ‘inchoate and
unparticularized suspicion or hunch’ of criminal activity.’”
United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008).
Officer Michaels stopped Wingle based upon his observation
of Wingle’s drifting as well as his texting while driving.
Officer Michaels observed Wingle’s car “drifting over towards
[his] vehicle” and testified that Wingle “was drifting towards
my lane to where I had to brake.” (J.A. 44–45.) Officer Michaels
further testified that “I felt that if I didn’t apply my brakes,
that his vehicle would have drifted and would have drifted into
mine.” (J.A. 45.) These specific, articulable observations,
which the magistrate judge found credible, created at least a
6
reasonable suspicion giving Officer Michaels justification to
initiate a traffic stop against Wingle for reckless driving and
for failure to maintain a lane of travel. Thus, the traffic stop
is justified under the Fourth Amendment unless Wingle can
demonstrate that the magistrate judge clearly erred in accepting
Officer Michaels’ testimony as credible.
We “defer to a district court’s credibility determinations,
for ‘it is the role of the district court to observe witnesses
and weigh their credibility during a pre-trial motion to
suppress.’” United States v. Abu Ali, 528 F.3d 210, 232 (4th
Cir. 2008) (quoting United States v. Murray, 65 F.3d 1161, 1169
(4th Cir. 1995)). To overcome the magistrate judge’s credibility
determination, Wingle must provide affirmative, contradictory
evidence establishing clear error. See United States v. McGee,
736 F.3d 263, 271 (4th Cir. 2013) (holding that a defendant’s
circumstantial evidence, while significant, was not enough to
show clear error in the district court’s acceptance of
uncorroborated testimony of an officer).
Wingle argues that the magistrate judge’s credibility
finding is clearly erroneous because (1) the patrol car’s
dashboard camera does not show reckless driving or failure to
maintain a single lane of travel; (2) at the time of the traffic
stop, Officer Michaels mentioned only Wingle’s texting as a
justification for the stop; and (3) Officer Michaels admitted in
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his testimony that he would not have initiated the stop for
reckless driving alone because he did not believe that Wingle’s
conduct warranted that charge.
With respect to Wingle’s first argument, because the
dashboard camera was positioned to record only the area in front
of the patrol car, the video recording does nothing to undermine
the magistrate judge’s finding that Officer Michaels’ testimony
was credible. Wingle argues that the video shows that Officer
Michaels did not take any sudden or drastic maneuvers to avoid a
collision. As the magistrate judge found, however, “the
videotape does depict the officer’s vehicle slowing to an extent
that [Wingle’s] vehicle moved in front of it, which is
consistent with the officer’s description of the events.” (J.A.
118.) Because the videotape does not contradict Officer
Michaels’ testimony, it is insufficient to defeat the magistrate
judge’s credibility determination under McGee. 3
3
Wingle’s evidence in this case is even weaker than that
presented in McGee. In McGee, a police officer testified that he
had initiated a traffic stop against the defendant because he
observed an inoperative brake light on the defendant’s car. 736
F.3d at 270. The district court accepted the officer’s
uncorroborated testimony despite the fact that the defendant
offered evidence that subsequent testing of the brake lights
after the traffic stop indicated that the lights were fully
functional. Id. On appeal, we expressed that the defendant’s
evidence “that the brake light was not inoperative [was]
significant” but ultimately concluded that the evidence was
“nonetheless circumstantial and relie[d] on the untested
reliability of a third party’s recordkeeping.” Id. at 271. Thus,
(Continued)
8
With respect to Wingle’s second argument, that at the time
of the traffic stop, Officer Michaels mentioned only Wingle’s
texting as a justification for the stop, there is no
constitutional requirement that an officer must inform a suspect
of every reason for initiating a traffic stop. See Devenpeck v.
Alford, 543 U.S. 146, 155 (2004) (“While it is assuredly good
police practice to inform a person of the reason for his arrest
at the time he is taken into custody, [the Court has] never held
that to be constitutionally required.”). Wingle implies that
Officer Michaels’ other justifications for the stop are post hoc
fabrications designed to skirt the limitations of the then-
applicable version of the Virginia texting-while-driving
statute, which prohibited officers from issuing citations for
violations of that statue without cause to stop or arrest the
driver for some other infraction. See Va. Code Ann. § 46.2-
1078.1(C) (2009). However, Officer Michaels’ subjective intent
in initiating the stop is irrelevant to our analysis under the
Fourth Amendment. See United States v. Johnson, 734 F.3d 270,
275 (4th Cir. 2013) (holding that the reasonableness of a
traffic stop under the Fourth Amendment “is an objective
standard”). Officer Michaels’ testimony established that
we concluded, the defendant in McGee had not carried his burden
to show that the district court’s credibility determination was
made in clear error. Id.
9
Wingle’s car drifted, causing Officer Michaels to anticipate a
possible collision, creating reasonable suspicion to stop
Wingle’s vehicle for reckless driving. To show that the
magistrate judge’s credibility finding was clearly erroneous,
Wingle must do more than raise inconsistent circumstantial
evidence. See McGee, 736 F.3d at 271.
Wingle’s third argument, that Officer Michaels admitted in
his testimony that he would not have initiated the stop for
reckless driving because he did not believe that Wingle’s
conduct warranted that charge, also fails. A “stop remains valid
even if the officer would have ignored the traffic violation but
for his other suspicions.” Hassan El, 5 F.3d at 730 (quoting
Cummins, 920 F.2d at 500). As the magistrate judge concluded,
“Officer Michaels clearly had cause to charge [Wingle] with
reckless driving, regardless of whether he ultimately did so.”
(J.A. 119.) An officer’s exercise of discretion in making
charging decisions has no impact on whether reasonable suspicion
existed at the time of the stop. See Devenpeck, 543 U.S. at 154–
55 (“Subjective intent of the arresting officer, however it is
determined . . . , is simply no basis for invalidating an
arrest.”). Moreover, Officer Michaels explained that he did not
charge Wingle with reckless driving because of his understanding
of a Virginia state law policy of not charging reckless driving
along with driving under the influence. In fact, Virginia state
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law provides that when a person is charged with both reckless
driving and driving under the influence as a result of the same
acts and is convicted of one charge, the other charge must be
dismissed. See Va. Code Ann. § 19.2-294.1. As with his
subjective intent in initiating the stop or his exercise of
charging discretion, Officer Michaels’ reason for exercising his
charging discretion--in this case a minor mistake of law--is
irrelevant. See Devenpeck, 543 U.S. at 154–55. 4
IV
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
4
Because we conclude that Officer Michaels had cause to
initiate the stop for reckless driving, we need not address
whether the stop would have been justified based solely upon
Wingle’s texting while driving under the then-existing version
of section 46.2-1078.1 of the Virginia Code.
11