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No. 13-4401
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:13cr00018-HEH-1)
Argued:
Decided:
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.
PER CURIAM:
Kenneth
A.
Wingle
appeals
from
the
district
courts
I
Early
on
the
morning
of
September
2,
2012,
Wingle
was
special
territorial
jurisdiction
of
the
United
States.
accelerated
with
Wingles
car
leading.
Officer
Michaels
lane.
Officer
Michaels
applied
his
brakes
to
avoid
collision and observed Wingle looking down toward his lap and a
bluish-white light illuminated Wingles face and chest.
Officer Michaels initiated a traffic stop. Upon approaching
Wingles 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
2
his
vehicle.
After
Wingle
repeatedly
refused,
Officer
Michaels forcibly removed him from the car and placed Wingle
under arrest.
During
an
inventory
search
of
Wingles
car,
Officer
what
appeared
to
be
(and
was
later
confirmed
to
be)
driving
under
the
influence
of
alcohol,
possession
of
driving
while
operating
handheld
cellular
device
in
violation of 32 C.F.R. 634.25(f) and Va. Code Ann. 46.21078.1 (Count Four); and one count of failure to stay within one
lane when operating a motor vehicle on a divided highway in
the
search
of
his
car,
arguing
that
Officer
Michaels
One
magistrate
and
Two
judges
and
reserving
decision.
In
the
right
conformity
to
appeal
with
the
the
plea
$250
fine,
$25
special
assessment,
and
one
year
of
appealed
the
magistrate
judges
decision
to
the
II
When considering an appeal from a district court acting in
its
capacity
magistrate
as
an
judges
intermediate
decision,
we
appellate
apply
court
to
reviewing
the
magistrate
by
district
judge.
Fed.
R.
Crim.
P.
58(g)(2)(D).
III
The Fourth Amendment guarantees [t]he right of the people
to
be
secure
in
their
persons,
houses,
papers,
and
effects,
not
be
unreasonable
under
5
the
circumstances.
United
States v. Wilson, 205 F.3d 720, 72223 (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
those
facts,
unparticularized
evince
suspicion
or
more
than
hunch
of
an
inchoate
criminal
and
activity.
United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008).
Officer Michaels stopped Wingle based upon his observation
of
Wingles
drifting
as
well
as
his
texting
while
driving.
(J.A.
45.)
These
specific,
articulable
observations,
reasonable
suspicion
giving
Officer
Michaels
justification
to
justified
under
the
Fourth
Amendment
unless
Wingle
can
weigh
their
credibility
during
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 judges credibility
determination,
Wingle
must
provide
affirmative,
contradictory
clear
error
in
the
district
courts
acceptance
of
is
argues
clearly
that
the
magistrate
erroneous
because
judges
(1) the
credibility
patrol
cars
Officer
Michaels
mentioned
only
Wingles
texting
as
his testimony that he would not have initiated the stop for
reckless driving alone because he did not believe that Wingles
conduct warranted that charge.
With
respect
to
Wingles
first
argument,
because
the
As
the
magistrate
judge
found,
however,
the
[Wingles]
vehicle
moved
in
front
of
it,
which
is
Because
the
videotape
does
not
contradict
Officer
as
justification
for
the
stop,
there
is
no
to
be
constitutionally
required.).
Wingle
implies
that
Officer Michaels other justifications for the stop are post hoc
fabrications
applicable
designed
version
to
of
skirt
the
the
limitations
Virginia
of
the
then-
texting-while-driving
for
some
other
infraction.
See
Va.
Code
Ann.
46.2-
(4th
traffic
Cir.
stop
standard).
2013)
under
Officer
(holding
the
that
Fourth
Michaels
the
reasonableness
Amendment
is
an
testimony
established
of
objective
that
collision,
Wingles
vehicle
magistrate
Wingle
for
judges
must
do
creating
reasonable
reckless
credibility
more
than
suspicion
driving.
finding
raise
To
was
show
to
that
clearly
inconsistent
stop
the
erroneous,
circumstantial
driving
because
he
did
not
believe
that
Wingles
Michaels
clearly
had
cause
to
charge
[Wingle]
with
119.)
An
officers
exercise
of
discretion
in
making
is
simply
no
basis
for
invalidating
an
See
intent
Va.
in
Code
Ann.
initiating
19.2-294.1.
the
stop
or
As
his
with
exercise
his
of
IV
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.