United States v. Kelly Barber ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-2137
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kelly Ray Barber
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Ft. Dodge
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Submitted: February 14, 2014
Filed: May 29, 2014
[Unpublished]
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Before SMITH, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Kelly Ray Barber appeals the district court's1 denial of his motion to suppress
evidence after conditionally pleading guilty to possession with intent to distribute
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
more than five grams of actual methamphetamine after having been previously
convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 851. We affirm.
I. Background
On October 11, 2012, around 9:00 p.m., Officer Joel Vandekrol of the Clear
Lake Police Department observed a vehicle pull up near where he was parked. Officer
Vandekrol testified that it came through an alley with its lights off, turned right, and
parallel parked on the street. After this vehicle aroused his suspicions, Officer
Vandekrol began watching the vehicle and a nearby house. He was familiar with that
particular house because the owner's name had "come up several times" regarding
drug activity and short-term vehicle traffic. The Clear Lake police had previously
done surveillance on the house.
Officer Vandekrol could not see how many people were in the vehicle when it
initially pulled up. He testified that he was 30 to 50 yards away, there were "no street
lights anywhere close," and it was a "very shaded area." He saw two people exit the
vehicle and enter the house. Officer Vandekrol testified that these individuals were
wearing big winter coats with hoods and baggy clothing. Officer Vandekrol was
unable to tell the gender of the people who exited the vehicle or determine their age,
height, or weight.
Officer Vandekrol then drove his squad car past the vehicle to get its license
plate number. He checked the plates and learned that the registered owner of the
vehicle—a female—had a "surrendered" driver's license. Officer Vandekrol explained
that a surrendered license could mean that the person was forced to give it up by the
Department of Transportation due to a medical condition or that the person may have
moved out of the state and obtained a driver's license in another state. After receiving
information about the vehicle's owner, Officer Vandekrol repositioned his squad car
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so that he could observe the vehicle while remaining out of sight of the house's
occupants. Officers James O'Keefe and Bengston2 soon arrived to provide backup.
At approximately the same time that Officers Bengston and O'Keefe arrived
near the area, Officer Vandekrol observed the vehicle's brake lights come on and the
vehicle begin to move back down the alley, again with its lights off. Officer
Vandekrol testified that it was "too dark from my position" to see the driver walk back
out of the house, and, at that point, he did not know how many people were in the
vehicle. When the vehicle turned onto the paved street, the driver turned on the
vehicle's lights. Officers Bengston and O'Keefe stopped the vehicle approximately
three or four blocks from where Officer Vanderkrol first observed it. Officer O'Keefe
testified that before stopping the vehicle, Officer Bengston "made a comment that he
thought he saw a vehicle leaving down the alley way without any lights on."
Officer Vandekrol testified that he did not know who was driving the vehicle
until Officers Bengston and O'Keefe stopped it. Similarly, Officer O'Keefe testified
that he did not know that the driver of the vehicle was male3 until after the officers
stopped the vehicle, Officer O'Keefe approached the driver's window, and Barber
looked up at him. Barber did not have a driver's license with him and identified
himself by name. Officer Bengston knew that Barber had a barred license, a fact that
Barber confirmed. The officers arrested Barber, searched the car, and recovered
methamphetamine from the car.
2
The record does not reveal Officer Bengston's first name; additionally, the
transcript from the suppression refers to the officer's name as "Bengtson." For
consistency with the magistrate judge's report and recommendation, we will refer to
the officer as "Bengston."
3
A video recording of the stop was introduced as Government's Exhibit 1. The
video confirms that the driver's gender is not readily apparent—even after Barber gets
out of the car—because of a heavy, loose-fitting coat and a hood that extends beyond
the person's face.
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Officer Vandekrol's police report states that the vehicle left the area in the alley
with its lights off; however, Officer Vandekrol conceded on cross-examination that
the police report does not state that the vehicle also arrived at the house with its lights
off. Officer Vandekrol, who had been a police officer for approximately 15 months
prior to this incident, testified that he does not "mention every probable cause" when
preparing his report. Officer Vandekrol believed that the vehicle driving off without
lights constituted a traffic violation, but he also advised Officer O'Keefe on the radio
that "there's no DL on file; so that's your PC if you want to go get 'em."
Barber called Bret Palmer, the service manager at a local Chevy dealership, to
testify as an expert witness. Palmer testified that he checked the VIN number on the
1997 Chevy Lumina, which was involved in the incident, and determined that it had
an "automatic headlamp." This means that the headlights come on when the engine is
running. Palmer explained that you cannot override the system, unless there is a
mechanical problem. But, on further examination, Palmer agreed that some vehicles
of this make and model have one light, while others have two bulbs. Palmer could not
tell from the VIN whether the car that Barber was operating had one light or two. On
those cars that have both "running lamps" and "headlights," the running lamps are on
all the time, with a switch manually controlling the headlights. On cross-examination,
Palmer testified that he "assumed" that a fuse controlled the running lights, and he
conceded that it was "possible" that one could disable the running lights by pulling the
fuse.
Frank Hodak, a Cerro Gordo County sheriff's deputy assigned to the North
Central Iowa Narcotics Task Force, testified on rebuttal that when running cover
operations, it was common for task force officers to disable a vehicle's daytime
running lights. Deputy Hodak explained that on approximately ten occasions either
he or a person at the dealership disabled the daytime running lights by pulling a fuse.
This was done on a variety of makes and models. Deputy Hodak testified that he had
personally disabled the running lights on a Chevy Trailblazer using this method, but
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he acknowledged on cross-examination that he had no knowledge regarding the Chevy
Lumina that Barber was driving.
Barber was charged with one count of possession with intent to distribute more
than five grams of actual methamphetamine after having been previously convicted
of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and
851. He initially pleaded not guilty and filed a motion to suppress seized evidence
during the traffic stop.
Following an evidentiary hearing and briefing, the magistrate judge issued a
report and recommendation to the district court recommending denial of the motion
to suppress. The magistrate judge found that the officers had probable cause to stop
Barber based on a traffic violation—driving in an alley without headlights. In making
this finding, the magistrate judge rejected Barber's argument that Officer Vandekrol
was not credible because of his failure to include in the police report that Barber
arrived at the scene with the vehicle's lights off. The magistrate judge "found
Vandekrol to be a credible witness" and explained that in Officer Vandekrol's report,
which he prepared shortly after the events, he noted that the vehicle left the area with
its lights off. The magistrate judge also noted that, before the stop, Officer Bengston
commented to Officer O'Keefe that he "thought he saw a vehicle leaving down the
alley way without any lights on." Based on this testimony, the magistrate judge
concluded that "Vandekrol's failure to note in his report that the vehicle also arrived
with no lights, does not make the testimony regarding the lack of lights when leaving
any less credible."
Alternatively, the magistrate judge found that the officers had reasonable
suspicion to believe that the driver of the vehicle was an unlicensed driver, which also
supported the traffic stop. The magistrate judge found that the video of the stop
"confirms that the driver's gender is not readily apparent—even after he gets out of the
car—because of a heavy, loose-fitting coat, and a hood which extends beyond the
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person's face." The court again credited Officer Vandekrol's testimony, as well as
Officer O'Keefe's testimony.
Barber filed no objections to the report and recommendation, and the district
court adopted the report and recommendation and denied the motion to suppress.
II. Discussion
Barber argues that the evidence and testimony offered at the suppression
hearing were insufficient to justify the stop of the vehicle. According to Barber, even
if this court applies plain-error review, "serious and readily apparent credibility
issues" exist as to Officer Vandekrol. He maintains that "[t]he inconsistencies and
differing accounts of the events that transpired on the night of October 11, 2012[,] are
untenable to validate the motor vehicle stop of [him]." He contends that Palmer's
testimony showed that the allegations that Barber was operating the vehicle without
headlamps "was a preposterous creation of imagination to support an illegal and
constitutionally defective stop of the defendant's vehicle."
Because Barber filed no objections to the magistrate judge's report and
recommendation, the factual conclusions underlying Barber's appeal are reviewed for
plain error. United States v. Wise, 588 F.3d 531, 537 n.5 (8th Cir. 2009) (citing United
States v. Newton, 259 F.3d 964, 966 (8th Cir. 2001); United States v. Looking, 156
F.3d 803, 809 (8th Cir. 1998)). We review the district court's "conclusion as to
whether the search violated the Fourth Amendment . . . de novo." Newton, 259 F.3d
at 966.
Barber's entire appeal is based on his challenge to Officer Vanderkrol's
credibility, as he does not dispute the district court's probable-cause legal analysis.
Here, the magistrate judge found Officer Vandekrol's testimony credible. Officer
Vandekrol testified that he saw Barber's vehicle moving in the alley without lights.
The district court adopted the magistrate judge's report and recommendation,
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including its determination that Officer Vandekrol was a credible witness. "A district
court's findings regarding witness credibility are virtually unreviewable on appeal."
United States v. Coleman, 700 F.3d 329, 334 (8th Cir. 2012) (quotations and citations
omitted). Barber has shown no reason for us to second-guess the district court. We
conclude that the district court did not plainly err in crediting the testimony of the
officers that a traffic violation occurred; therefore, probable cause existed for the stop.
See United States v. Wright, 512 F.3d 466, 471 (8th Cir. 2008) ("Any traffic violation,
however minor, provides probable cause for a traffic stop." (quotation and citation
omitted)).4
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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4
We also note that Barber has not challenged the district court's alternative
conclusion that reasonable suspicion existed to support the traffic stop. An issue not
raised on appeal is waived. United States v. Simmons, 964 F.2d 763, 777–78 (8th Cir.
1992). This unchallenged alternative holding also supports the district court's denial
of the motion to suppress.
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