United States v. Young ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4699
BRANDON SCOTT YOUNG,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CR-02-29)
Argued: June 5, 2003
Decided: July 24, 2003
Before WILKINS, Chief Judge, WIDENER, Circuit Judge, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Thomas William Kupec, MICHAEL & KUPEC, Clarks-
burg, West Virginia, for Appellant. Stephen Donald Warner, Assistant
United States Attorney, Elkins, West Virginia, for Appellee. ON
BRIEF: Thomas E. Johnston, United States Attorney, Elkins, West
Virginia, for Appellee.
2 UNITED STATES v. YOUNG
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Brandon Scott Young appeals the denial of a motion to suppress
evidence obtained in a search of a vehicle in which he was a passen-
ger. Finding no error, we affirm.
I.
On March 7, 2001, Sergeant Charles F. Trader, III, of the West
Virginia State Police, was in his patrol vehicle positioned in the
median on Interstate 79. From this vantage point, Trader observed a
small Cadillac with a Florida license plate driving in the left north-
bound lane with no other vehicles around it.
Suspecting possible drug activity, Trader pulled into the north-
bound passing lane of I-79 and accelerated until he came within one
and a half car lengths of the Cadillac. Apparently seeing the patrol
vehicle, the driver moved into the right-hand lane and then activated
his right turn signal. Trader observed that one of the two brake lights
on the Cadillac was not working. Trader activated his blue lights and
pulled the Cadillac to the side of the interstate.
Trader exited his vehicle and walked to the driver’s side of the
Cadillac. The driver, Ryan Lance Gross, stated that he and his com-
panion were lost. At Trader’s request, Gross provided his driver’s
license, registration, and proof of insurance. Trader then directed
Gross to come back to his police vehicle. When Gross exited the Cad-
illac, Trader patted him down and asked him if he had any drugs on
his person. The men then entered the front seat of the police vehicle.
While Trader called in Gross’s license and registration and waited for
a response, he asked Gross where he was going and whom he was
going to visit. Gross initially told Trader that he would be visiting an
uncle but later stated he would be visiting a cousin. Trader also
UNITED STATES v. YOUNG 3
inquired about the drug trade in Florida. Gross maintained that he had
no drugs.
Within a few minutes, Trader told Gross that he was going to walk
a drug-sniffing dog that he had in the back of his vehicle around the
Cadillac and asked Gross if the dog would alert. Trader also asked
several times if he could search Gross’s vehicle. Gross maintained
that the dog would not alert, but refused to give Trader permission to
search the interior of the Cadillac. Gross did state at one point, how-
ever, that Trader could take his dog around the outside of the Cadil-
lac.
When Trader’s check of Gross’s records was complete, Trader
issued him a warning ticket for changing lanes without signaling and
instructed Gross to remain in the patrol vehicle. Trader then walked
to the passenger side of the Cadillac and spoke briefly with Young.
Trader informed Young that he was going to let his dog sniff around
the Cadillac and asked Young if he had anything that would cause the
dog to alert. Young admitted that he had a small amount of marijuana
in a bag behind the seat for personal use. Based on this admission,
Trader arrested Young for marijuana possession and searched the
Cadillac incident to Young’s arrest. The search uncovered 2,999
grams of marijuana.
Young was subsequently indicted on one count of possession of
marijuana with the intent to distribute. See 21 U.S.C.A. § 841(a)(1)
(West 1999). Young moved unsuccessfully to suppress the marijuana
both on the ground that the initial stop was not supported by probable
cause and on the basis that Trader’s questioning of Gross regarding
drug possession was unconstitutional. The court ruled that the initial
stop was permissible since Trader was justified in stopping Gross
because of his nonoperational brake light and because Trader had
probable cause to believe Gross had committed a traffic violation by
changing lanes without signaling. The court further held that Young
lacked standing to challenge Trader’s drug-related questioning of
Gross. Following the denial of his motion to suppress, Young entered
a conditional plea of guilty to possession of marijuana with the intent
to distribute and was sentenced to three years probation.
4 UNITED STATES v. YOUNG
II.
Young first argues that the district court erred in ruling that Trad-
er’s initial stop of the Cadillac was constitutionally permissible. We
disagree.
A stop is constitutionally permissible if a law enforcement officer
has probable cause to believe that the motorist has committed a traffic
violation. See Whren v. United States, 517 U.S. 806, 810 (1996). That
the traffic violation is not the primary reason that the officer stopped
the motorist does not affect the validity of the stop. See id. at 813. In
reviewing rulings on suppression motions, we review fact findings for
clear error and the application of the law to those facts de novo. See
United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000).
In challenging the determination of the district court that Trader
was justified in stopping the Cadillac because of the nonoperational
brake light, Young relies on the fact that West Virginia law does not
require that a vehicle be equipped with two brake lights; a single stop
lamp is sufficient. See W. Va. Code Ann. § 17C-15-18(a)(1) (Michie
2000) (requiring that vehicles be equipped with "[a] stop lamp on the
rear which shall emit a red or yellow light and which shall be actuated
upon application of the service (foot) brake") (emphasis added). Even
assuming, though, that a single brake light located in the middle of
the rear of the vehicle would satisfy that statutory requirement, Trader
had probable cause to believe that Young had violated another sub-
section of the same statute. West Virginia law requires that "[a] stop
lamp shall be plainly visible and understandable from a distance of
one hundred feet to the rear." W. Va. Code Ann. § 17C-15-18(b)
(Michie 2000) (emphasis added). Also, "[w]hen a vehicle is equipped
with a stop lamp or other signal lamps, such lamp or lamps shall at
all times be maintained in good working condition." Id. Because one
of the two brake lights was not operational, Trader could have reason-
ably concluded that the other brake light, though plainly visible, was
not plainly understandable because it could easily have been mis-
taken for a turn signal. Moreover, Trader could have reasonably con-
cluded that the stop lamps with which the Cadillac was equipped were
not in "good working condition." See State v. Jihad, 553 S.E.2d 249,
250-51 (S.C. 2001) (interpreting statutory language essentially identi-
cal to that in § 17C-15-18(b) to require that even if only one brake
UNITED STATES v. YOUNG 5
light is required, all such lights must be operational if vehicle is
equipped with more than one light). Thus, Trader was justified in
making the initial stop.*
III.
Young next contends that even if Trader’s initial stop of the Cadil-
lac was constitutionally permissible, Trader’s questioning of Gross
concerning drug possession exceeded constitutional bounds. We need
not decide whether the drug-related questioning was impermissible,
however, because even if it was, the district court ruled that Young
lacked standing to assert that it was unconstitutional, and Young has
waived any argument challenging that ruling. See Carter v. Lee, 283
F.3d 240, 252 n.11 (4th Cir.) ("[T]his Court normally views conten-
tions not raised in an opening brief to be waived."), cert. denied, 123
S. Ct. 196 (2002).
IV.
In sum, we affirm the district court order denying suppression of
the evidence recovered in the vehicle searches because (1) the original
stop was permissible and (2) Young has waived any challenge to the
conclusion of the district court that he lacked standing to assert that
Trader’s drug-related questioning was unconstitutional.
AFFIRMED
*Although the district court did not base its decision on a conclusion
that Trader had probable cause to believe that Gross had violated § 17C-
15-18(b), we may "affirm on any ground fairly supported by the record."
Korb v. Lehman, 919 F.2d 243, 246 (4th Cir. 1990).
We note that Young also challenges the conclusion of the district court
that Trader had probable cause to believe that Young had committed a
traffic violation by changing lanes without signaling. Because the stop
was justified for the reasons discussed above, we do not address this
issue.