United States v. Wendt, James T.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4115
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES T. WENDT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 04 CR 30103—Michael J. Reagan, Judge.
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ARGUED SEPTEMBER 13, 2006—DECIDED OCTOBER 19, 2006
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Before BAUER, WOOD, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. James Wendt was charged with
possession with the intent to distribute cocaine in viola-
tion of 21 U.S.C. § 841(a)(1). He filed a motion to quash
his arrest and suppress the evidence obtained during the
search of his car, which was denied. Thereafter, Wendt
entered a conditional guilty plea. The denial of his motion
to suppress is the subject of this appeal. We affirm.
On July 22, 2004, the Drug Enforcement Administration,
with the help of local law enforcement agencies, established
a drug checkpoint along Interstates 55/70 near Collinsville,
Illinois. Before the Black Lane exit, the DEA posted signs
indicating that a drug checkpoint lay ahead. Further down
2 No. 05-4115
the highway, beyond the Black Lane exit, officers sta-
tioned two unoccupied squad cars as decoys. Thus, the
Black Lane exit appeared to be the last and only chance to
avoid the checkpoint. However, the actual checkpoint was
at the end of the Black Lane exit ramp.
On July 22, 2004, Granite City Police Officer Michael
Parkinson was positioned on an overpass of Interstates
55/70 near Black Lane Road in Collinsville. He was seated
in a Jeep Cherokee that sat higher than an average passen-
ger vehicle. From his vehicle he used binoculars to observe
the eastbound lanes of Interstates 55/70. At the motion to
suppress hearing, Officer Parkinson testified that from this
vantage point, he saw a white Ford Expedition operated by
Wendt cross two lanes of traffic to exit at Black Lane Road
without using a turn signal. This constituted two traffic
offenses in violation of 625 ILCS 5/11-804: crossing two
lanes of traffic without using a turn signal and entering the
Black Lane exit ramp without using a turn signal.
Officer Parkinson reported his observations to police
officers, including Officer Boerm, who were positioned at
the top of the exit ramp. Wendt’s vehicle was ultimately
stopped by officers at that location. Officer Parkinson
testified that the only vehicles that were stopped at the
Black Lane Road exit were ones that had committed traffic
violations.
Collinsville Police Officer Jon Brett Boerm was working
at the top of the exit ramp near the intersection of Inter-
states 55/70 and Black Lane Road. At this location, Officer
Boerm received the aforementioned radio communication
from Officer Parkinson. Officer Boerm testified that he then
observed the white Expedition on the exit ramp and noted
that the vehicle was straddling the center line of the
roadway, another violation of Illinois traffic law. Officer
Boerm testified that he stopped the vehicle primarily based
upon his observations but also on the basis of the traffic
violations reported by Officer Parkinson.
No. 05-4115 3
As expected, Wendt’s version of the facts differ. At the
motion to suppress hearing, Wendt testified that he exited
the highway because he “didn’t want to have to deal with
the police at all.” He thought he would be pulled over
because he “may have been speeding.” Wendt testified that
he crossed one lane of traffic on the interstate in order to
reach the exit ramp but first turned on his signal. Wendt
further testified that once he was off the exit ramp, he
remained in the inner lane.
After stopping Wendt and obtaining his consent, the
officers searched the car and discovered a hidden compart-
ment with 19.6 kilograms of cocaine. Wendt was placed
under arrest.
Once Wendt was in custody at the Collinsville police
department, Officer Boerm issued a written warning and
stop card to Wendt. Officer Boerm testified that the time of
day he originally wrote on the written warning was proba-
bly 13:40 hours and that after issuing the warning
to Wendt, he corrected the time to read 15:40. Officer
Boerm testified that he often confused the 13 and 15 in
military time, and that he confirmed the correct time by
reviewing radio transmissions.
On August 17, 2004, Wendt was indicted for possession
with intent to distribute cocaine in violation of 21 U.S.C.
§§ 841 (a)(1) and (b)(1)(A). On October 25, 2004, Wendt filed
the motion to quash his arrest and suppress the evidence,
claiming that the officers lacked probable cause for the
traffic stop. The district court denied the motion and found
probable cause based on the traffic violations observed by
the officers. Upon denial of the motion, Wendt entered a
conditional guilty plea, reserving his right to appeal. The
district court sentenced Wendt to 168 months of incarcera-
tion and a $1,000.00 fine.
4 No. 05-4115
I. Discussion
Wendt argues that the officers lacked probable cause
to make a traffic stop. Specifically, he asserts that the
officers’ testimony was not credible and that the district
court erred in accepting this testimony in support of its
finding of probable cause. We review the district court’s
factual findings and credibility determinations with
deference, unless clearly erroneous. United States v. Bass,
325 F.3d 847, 850 (7th Cir. 2003). Reversal is warranted
only when this Court is “left with the definite and firm
conviction that a mistake has been made . . . such as a
situation in which a district court credited exceedingly
improbable testimony.” Id. In other words, “we must accept
the evidence unless it is contrary to the laws of nature, or
is so inconsistent or improbable on its face that no reason-
able factfinder could accept it.” United States v. Eddy, 8
F.3d 577, 580 (7th Cir. 1993) (quoting United States v.
Saunders, 973 F.2d 1354, 1359 (7th Cir. 1992)).
Wendt argues that based on City of Indianapolis v.
Edmond, 532 U.S. 31 (2000), the traffic stop was unreason-
able because the officers lacked individualized suspicion.
Moreover, Wendt asserts that the DEA established a
“programmatic regiment” to stop and search cars with out-
of-state license plates for drugs. An automobile stop will
violate the Constitution if it is deemed “unreasonable”
under the circumstances. Whren v. United States, 517 U.S.
806, 810 (1996). The decision to stop an automobile is
reasonable when the police have probable cause to be-
lieve that a traffic violation has occurred. Id. Wendt’s
reliance on Edmond is misplaced.
In Edmond, the police established various drug check-
points, where officers stopped and questioned the driver of
every car that passed through. Id. at 35. The Supreme
Court found that officers seized motorists without any
particularized suspicion, a violation of the Fourth Amend-
No. 05-4115 5
ment. Id. In contrast, here, the traffic stop was conducted
based on the officers’ reasonable belief that traffic violations
had occurred. Officers Parkinson and Boerm testified that
they saw Wendt commit a total of three traffic violations:
changing lanes without signaling; exiting a highway
without signaling; and straddling the centerline of a two-
lane road.
Wendt then argues that this testimony lacks credibility
based on inconsistencies. Wendt first cites a portion of
Officer Parkinson’s testimony where he “refus[ed] to
acknowledge that he worked as part of a drug interdic-
tion detain” and instead characterized his assignment as
“conducting traffic stops.” He next points to the fact that
Officer Parkinson was looking for traffic violations without
a radar gun and seemingly targeted cars with out-of-state
plates. Wendt claims that Officer Parkinson’s credibility
was undermined because the Officer testified that he saw
Wendt fail to signal his lane change yet was unable to
see Wendt’s license plate. Wendt contends that this testi-
mony indicates a lack of candor. Wendt also seeks to
discredit Officer Boerm’s testimony based on the timing of
his issuance of a warning ticket. He argues that this
“evinc[es] the absence of probable cause for the stop.”
The trial judge makes credibility determinations. Eddy,
8 F.3d at 583.
The judge has the best “opportunity to observe the
verbal and nonverbal behavior of the witnesses focusing
on the subject’s reactions and responses to the interrog-
atories, their facial expressions, attitudes, tone of voice,
eye contact, posture and body movements,” as well as
confused or nervous speech patterns in contrast with
merely looking at the cold pages of an appellate record.
United States v. Tolson, 988 F.2d 1494, 1497 (7th Cir. 1993)
(quoting Churchill v. Waters, 977 F.2d 1114, 1124 (7th Cir.
1992)) (emphasis omitted).
6 No. 05-4115
Here, the trial judge was in a better position than we
are to assess whether the officers were being truthful, and
we defer to his findings. The inconsistencies that Wendt
identifies are minor and unpersuasive. The record supports
the district court’s factual findings that probable cause
existed for the traffic stop. Nothing in the record leads to
the conclusion that the district court credited “exceedingly
improbable testimony.” Bass, 325 F.3d at 850.
II. Conclusion
The credibility determinations upon which the district
court based its denial of Wendt’s motion to suppress
evidence were not clearly erroneous. Accordingly, the
judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-19-06