United States v. Elbert Holly ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-3202
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United States of America
Plaintiff - Appellee
v.
Elbert J. Holly
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 25, 2020
Filed: December 18, 2020
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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Elbert J. Holly was charged with being a felon in possession of a firearm. See
18 U.S.C. §§ 922(g)(1) and 924(a)(2). Holly moved to suppress all evidence and
testimony obtained as a result of the Kansas City Police Department’s search and
seizure of his vehicle. The district court 1 denied the motion to suppress, and, within
the terms of his conditional plea agreement, Holly now appeals. Having jurisdiction
under 28 U.S.C. § 1291, we affirm the judgment of the district court.
I. Background
On August 5, 2017, Officers Evan Tarwater and Slade Whetro patrolled an
area of Kansas City, Missouri, which they believed had a high incidence of narcotic
sales. The officers observed a small red SUV parked on East 49th Street with a
single male occupant—later identified as Holly—seemingly waiting for someone or
something. The officers drove past and parked their patrol vehicle in order to
observe Holly. Soon after, the officers witnessed Holly participate in what they
believed to be a hand-to-hand narcotics transaction. When Holly started to drive
away, the officers followed his SUV toward College Avenue.
Although they did not observe Holly turn onto College, based on their
experience and knowledge of the area, the officers expected Holly to turn onto
College and proceed to Swope Parkway. The officers attempted to “cut-off” Holly’s
SUV by turning north onto Agnes Avenue.
Officer Whetro testified that upon turning onto Agnes, he maintained visual
contact with the SUV for all but “a half a second,” when the officers passed a berm
that was in the area between Agnes and College. Whetro, who was sitting in the
passenger seat of the patrol vehicle, testified his field of vision opened up once the
officers turned onto Swope and the berm no longer blocked his view. He further
testified that as he looked to his right, he could see the SUV fail to stop at the
intersection of College and Swope. Officer Tarwater testified that based on his
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable Matt
J. Whitworth, United States Chief Magistrate Judge for the Western District of
Missouri, now deceased.
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training and experience and the speed of Holly on College and in the intersection,
he did not believe there was any way Holly stopped at the stop sign.
After continuing to follow Holly for a short time, the officers initiated a traffic
stop. During the stop, the officers recovered a firearm from the vehicle and what
was believed to be crack cocaine.
A grand jury indicted Holly on one count of being a felon in possession of a
firearm. Holly moved to suppress all evidence and testimony obtained as a result of
the search and seizure of his vehicle and person. Holly argued the officers did not
have reasonable suspicion or probable cause to initiate the traffic stop.
At the suppression hearing, Holly presented evidence from federal public
defender investigators contesting whether the officers could actually see him fail to
stop at the stop sign. Holly’s investigators presented evidence that due to a physical
obstruction in the officers’ vision, specifically the berm between Agnes and College,
it was implausible that the officers saw Holly’s vehicle at the stop sign at the
intersection of College and Swope. The investigators based their opinion on a
recreation of the factual circumstances giving rise to the traffic stop.
Following the hearing, the district court denied Holly’s motion to suppress.
The district court specifically noted that while it found the testimony of all parties
credible, it found the testimony of Officers Tarwater and Whetro to be more credible
as to the facts surrounding the visibility of the intersection at College and Swope.
Holly subsequently agreed to a conditional plea agreement and now appeals the
denial of his motion to suppress.
II. Discussion
Holly argues the district court erred in concluding the officers had reasonable
suspicion to stop his vehicle. We review the denial of the motion to suppress under
a mixed standard of review. United States v. Williams, 777 F.3d 1013, 1015 (8th
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Cir. 2015). “We review the district court’s findings of fact under the clearly
erroneous standard, and the ultimate conclusion of whether the Fourth Amendment
was violated is subject to de novo review.” Id. (quoting United States v. Stephenson,
924 F.2d 753, 758 (8th Cir. 1991)). We will reverse a finding of fact for clear error
only “if, despite evidence supporting the finding, the evidence as a whole leaves us
with a definite and firm conviction that the finding is a mistake.” United States v.
Williams, 346 F.3d 796, 798 (8th Cir. 2003).
Because the assessment of a witness’s credibility is the province of the trial
court, a credibility determination “is virtually unreviewable on appeal.” United
States v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995). “A . . . decision to credit a
witness’s testimony over that of another can almost never be a clear error unless
there is extrinsic evidence that contradicts the witness’s story or the story is so
internally inconsistent or implausible on its face that a reasonable fact-finder would
not credit it.” Id. (citing Anderson v. City of Bessemer City, 470 U.S. 564, 575–76
(1985)).
A traffic stop is a seizure within the meaning of the Fourth Amendment and
it is only constitutional if the stop was reasonable. See United States v. Wright, 512
F.3d 466, 471 (8th Cir. 2008). “Under the Fourth Amendment, a traffic stop is
reasonable if it is supported by either probable cause or an articulable and reasonable
suspicion that a traffic violation has occurred.” United States v. Washington, 455
F.3d 824, 826 (8th Cir. 2006).
“It is well established that ‘any traffic violation, regardless of its perceived
severity, provides an officer with probable cause to stop the driver.’” Id. (quoting
United States v. Jones, 275 F.3d 673, 680 (8th Cir. 2001)). “Probable cause [also]
exists when a reasonable officer, confronted with the facts known to the officer at
the time of the stop, could have believed that there was a fair probability that a
violation of law had occurred.” United States v. Andrews, 454 F.3d 919, 921 (8th
Cir. 2006). “Even an officer’s incomplete initial observations may give reasonable
suspicion for a traffic stop,” and “[m]istakes of law or fact, if objectively reasonable,
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may still justify a valid stop.” United States v. Hollins, 685 F.3d 703, 706 (8th Cir.
2012). “To be reasonable is not to be perfect, and so the Fourth Amendment allows
for some mistakes on the part of government officials, giving them ‘fair leeway for
enforcing the law in the community’s protection.’” Heien v. North Carolina, 574
U.S. 54, 60–61 (2014) (quoting Brinegar v. United States, 338 U.S. 160, 176
(1949)).
It is undisputed that if Holly failed to stop at the stop sign, such failure would
be a violation of Missouri law. See Mo. Rev. Stat. § 304.351. However, Holly
argues his experts’ recreation reveals the officers had no basis to believe he ran the
stop sign. We disagree.
The district court credited the officers’ account—that they observed or
inferred Holly failed to stop—over the experts’ recreation of the incident ostensibly
showing that was not possible. We do not believe this was clearly erroneous.
Credibility determinations are entitled to great deference. See Heath, 58 F.3d at
1275. In this case there is no extrinsic evidence that clearly contradicts the officers’
account, nor was the officers’ testimony “so internally inconsistent or implausible
on its face that a reasonable fact-finder would not credit it.” Id. While Holly’s
experts’ recreation purported to show the officers could not observe Holly’s SUV at
the intersection of College and Swope, it was not dispositive of the issue, particularly
because the experts admitted they were unable to recreate the exact circumstances
of the events. As the district court noted, “[t]his inability to fully replicate the
circumstances that the officers testified were present makes the officers’ testimony
more credible as to what actually occurred on August 5, 2017.” The district court
ultimately gave more weight to the testimony of Officers Tarwater and Whetro, and
we do not believe that the officers’ testimony was so incredible or inconsistent as to
justify disturbing the district court’s finding. See Heath, 58 F.3d at 1275.
Having accepted the district court’s findings of fact, we conclude Officers
Tarwater and Whetro had probable cause to believe Holly had committed a traffic
violation. Therefore, the stop of Holly’s vehicle was reasonable and not a violation
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of the Fourth Amendment. Even if one of the officers was mistaken about actually
observing the violation, the surrounding circumstances—the speed of the SUV and
its position relative to the patrol vehicle—could lead a reasonable officer to believe
Holly had failed to stop as required by Missouri law.
The judgment of the district court is affirmed.
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