US v. Dmytro Patiutka

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:14-cr-00014-MFU-1. [999684673]. [14-4932]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4932

UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
DMYTRO PATIUTKA, a/k/a Alex Parker, a/k/a Roman Pak, a/k/a
Andrii Patiutka,
Defendant - Appellee.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Michael F. Urbanski,
District Judge. (5:14-cr-00014-MFU-1)

Argued:

September 15, 2015

Decided:

October 23, 2015

Before WILKINSON, MOTZ, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wilkinson and Judge Agee joined.

ARGUED: Jean Barrett Hudson, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellant.
Andrea
Lantz
Harris,
OFFICE
OF
THE
FEDERAL
PUBLIC
DEFENDER,
Charlottesville, Virginia, for Appellee.
ON BRIEF: Anthony P.
Giorno, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appellant.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellee.

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DIANA GRIBBON MOTZ, Circuit Judge:
The

district

court

suppress

evidence

flowing

vehicle.

granted
from

Dmytro
a

Patiutka’s

warrantless

motion

search

of

to
his

The Government challenges that ruling, asserting that

the search was incident to an arrest or, in the alternative,
fell within the automobile exception to the Fourth Amendment’s
warrant requirement.

We affirm.

I.
On April 27, 2013, Virginia State Trooper G.S. Cox, while
patrolling Interstate 81, observed an SUV with tinted windows
and a tinted license plate cover, which potentially violated
Virginia law.

When the driver failed to maintain lane, the

trooper pulled the car over.

A video camera on the patrol car’s

dashboard recorded the stop.
Trooper Cox approached the car and asked the driver for his
license.

The driver, Dmytro Patiutka, handed him a Lithuanian

driver’s license with the name “Roman Pak.”

The trooper then

asked

birth

Patiutka

for

his

name

and

date

of

and

later

testified that Patiutka gave him a date that differed by eight
years from the date on the driver’s license.

Although Trooper

Cox testified that at this point he “believed [Patiutka] was
lying to [him] about his identity,” which he understood to be an

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arrestable offense in Virginia, the trooper asked no follow-up
questions about Patiutka’s purported lie.
Instead,
Patiutka

Trooper

through

Cox

police

ran

the

databases

information
and,

supplied
receiving

after

by
no

results, returned Patiutka’s license, gave him verbal warnings
for the tint violations, and told Patiutka to “have a nice day”
and that he was “free to go.”

Trooper Cox later testified that,

“[i]n [his] mind, [Patiutka] wasn’t free to leave.”

Rather, the

trooper intended to reengage Patiutka in conversation and obtain
his consent to search the car.
As Patiutka began to walk back to his vehicle, Trooper Cox
asked him if he would answer “a couple of questions real quick.”
The trooper then asked for and believed he received consent to
search the car, and so signaled his fellow officers, who had by
then arrived on the scene, to begin searching.
other

officers

participated

in

the

search,

As many as five
including

Trooper

Jerry Moore, a member of Trooper Cox’s unit.

Trooper Moore

found

in

a

hatchback

bag

containing

area

and

a

opened

credit
one

of

card

reader

several

large

revealing four new, unopened iPads sitting on top.

the

SUV’s

suitcases,
Meanwhile,

Patiutka asked Trooper Cox why the officers were searching his
car.

Trooper Cox answered, “I asked you could I search your

car,” to which Patiutka replied, “no, close the car.”
Cox responded by announcing, “hold on, hold on.”
3

Trooper

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Upon hearing this, Trooper Moore stopped searching for a
moment,

but

then

announced

“investigative detention.”
handcuffed

Patiutka

and

that

he

was

placing

Patiutka

in

Based on this command, Trooper Cox
took

him

back

to

the

patrol

car.

Trooper Moore later testified that he placed Patiutka only in
investigative detention because he did not think he had probable
cause to arrest Patiutka.

But, given “the multiple iPads in the

vehicle and the credit card reader” and Trooper Cox’s conduct
(the

stop

and

request

to

search),

Trooper

Moore

believed

Patiutka was potentially involved in “criminal activity.”
The officers continued to search the SUV for approximately
fifty minutes; they found a credit card embosser, a credit card
re-encoder, and numerous blank credit cards.

At the conclusion

of the search, Trooper Cox transported Patiutka to the state
police
rights.

station

and,

during

the

trip,

read

him

his

Miranda

At the station, Trooper Moore and two Secret Service

agents conducted interviews of Patiutka, during which he made a
number of incriminating statements.
That same day, Patiutka received traffic summonses for the
state traffic violations for which he was pulled over:
license
window

plate
tint.

cover,
Eight

failure
months

to

maintain

later,

on

lane,

January

improper

and

13,

illegal

2014,

the

Government filed a criminal complaint in federal court, charging
Patiutka with access device fraud and aggravated identity theft
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in violation of 18 U.S.C. §§ 1029 and 1028A.

On March 20, 2014,

a grand jury indicted Patiutka on these charges.
Patiutka

moved

to

suppress

the

physical

evidence

seized

from his car as well as all statements and evidence that flowed
from

the

warrantless

search.

At

the

suppression

hearing,

Trooper Cox testified that Patiutka gave a birth year of 1982,
eight years earlier than the 1990 date on Patiutka’s license,
and that this caused the officer to believe Patiutka “was lying
. . . about his identity.”
even

“if

we

hadn’t

of

Trooper Cox further testified that

[sic]

found

anything

in

the

vehicle,

[Patiutka] would have ultimately been arrested for providing a
false ID.”
In

the

district

court,

the

Government

claimed

that

Patiutka’s statements and the evidence found in his car were
admissible under numerous exceptions to the Fourth Amendment’s
warrant requirement.

In a lengthy written opinion, the district

court rejected each of the Government’s asserted justifications.
The Government then filed this interlocutory appeal.
We

review

a

district

court’s

legal

determinations

underlying a grant of a motion to suppress de novo and its
factual findings for clear error.

United States v. Black, 707

F.3d 531, 537 (4th Cir. 2013).

The Fourth Amendment protects

“[t]he

be

right

of

the

people

to

secure

in

their

persons,

houses, papers, and effects, against unreasonable searches and
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seizures.”

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U.S. Const. amend. IV.

Warrantless searches are

presumptively unreasonable “except in certain carefully defined
classes of cases.”

Cady v. Dombrowski, 413 U.S. 433, 439 (1973)

(internal quotation marks omitted).
Before us, the Government narrows its focus and asserts
that two exceptions to the warrant requirement justified the
warrantless search of Patiutka’s car.

We consider each in turn.

II.
First, the Government argues that the search was incident
to Patiutka’s arrest.
Police officers may search a vehicle incident to a recent
occupant’s arrest when “the arrestee is within reaching distance
of the passenger compartment at the time of the search or it is
reasonable

to

believe

offense of arrest.”

the

vehicle

contains

evidence

of

the

Arizona v. Gant, 556 U.S. 332, 351 (2009).

A search may begin prior to an arrest, and still be incident to
that arrest.

Rawlings v. Kentucky, 448 U.S. 98, 111 (1980);

United States v. Miller, 925 F.2d 695, 698 (4th Cir. 1991).
However,

police

must

beginning a search.
(4th Cir. 1996).
warrantless

have

probable

cause

to

arrest

prior

to

See United States v. Han, 74 F.3d 537, 541

This requirement ensures that the fruits of a

search

will

not

serve

6

as

justification

for

the

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See, e.g., Sibron v. New York, 392 U.S. 40, 62-63

(1968).
We note at the outset that the Government does not contend
that the police conducted a search incident to Patiutka’s arrest
for

access

device

fraud

and

aggravated

identity

theft,

even

though the challenged portion of the search (after withdrawal of
consent) was initiated and conducted to obtain evidence of those
crimes.

Instead, the Government argues that Trooper Cox had

probable

cause

to

arrest

Patiutka

for

the

state

offense

of

providing false identity information and that the search was
valid as incident to Patiutka’s arrest on that charge.

Assuming

that the record permits such an argument, and that the offense
justifying a search incident to arrest can be different from the
offense for which a defendant was arrested, the argument still
fails. 1

This is so because probable cause did not exist for the

officers to arrest Patiutka for any offense at the moment he
revoked consent.

1

The district court found that Patiutka was not arrested
for the state false identity offense. And though the Government
maintains on appeal that Patiutka was indeed arrested for the
state offense of presenting “false identity information to a law
enforcement officer,” the Government concedes that the documents
evidencing
that
arrest
“were
not
presented
during
the
suppression hearing proceedings.”
Appellant’s Br. at 7 n.4.
Moreover, we have no need to address the question of whether an
offense justifying a search may differ from the offense for
which a defendant was arrested, and decline to do so.
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The

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district

court’s

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factual

findings

forestall

the

Government’s argument that the challenged search was incident to
any arrest of Patiutka, as the court did not credit Trooper
Cox’s

testimony

as

to

the

factual

basis

of

his

authority to arrest Patiutka prior to the search.

asserted

Rather, the

court found the trooper’s testimony unconvincing when weighed
against verifiable evidence indicating that the trooper did not
have probable cause to arrest Patiutka at that time.
reverse only if this finding was clearly erroneous.

We can
Moreover,

we must view the facts in the record in the light most favorable
to

Patiutka

because

he

prevailed

before

the

district

court.

United States v. Green, 740 F.3d 275, 277 (4th Cir. 2014).

We

owe “particular[] defer[ence] to a district court’s credibility
determinations, for ‘it is the role of the district court to
observe witnesses and weigh their credibility during a 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)).
At the suppression hearing, the Government had the burden
of proving by a preponderance of the evidence that Trooper Cox
had probable cause to arrest Patiutka.
Hampshire, 403 U.S. 443, 455 (1971).

See Coolidge v. New
In concluding that the

Government did not meet its burden, the district court relied on
the video of the stop.

The court noted that the video showed
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that Trooper Cox asked Patiutka no follow-up questions regarding
Patiutka’s purported lie as to his birthdate, but rather handed
the license back to Patiutka and told him he was “free to go.”
The video also showed that after Trooper Cox asked for (and
believed he received) Patiutka’s consent to search, the trooper
immediately

called

off

the

search

when

Patiutka

objected,

suggesting that the only basis for the search was consent.
the

video

did

not

substantiate

the

existence

of

the

And

primary

evidence the Government relied on in asserting that Trooper Cox
did

have

probable

cause.

That

evidence

was

the

trooper’s

testimony that Patiutka supplied a different birthdate than the
date on his license.
highway

traffic

The district court found that, because of

noise,

a

barking

police

dog,

and

Patiutka’s

pronounced foreign accent, the video did not reveal exactly what
Patiutka said was his birthdate.

For these reasons, the court

concluded, “I don’t believe there’s sufficient probable cause to
arrest him based on . . . the evidence that I have seen after
hearing the officer’s testimony and after viewing that video.”
We discern no error in this finding.
We hasten to add it does not follow that we believe, or
that the district court believed, that Trooper Cox lied about
the

date.

Even

Patiutka

argues

only

that

the

trooper

was

“mistaken and that probable cause didn’t exist at that time.”
The district court expressly held that it did not “doubt the
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good faith” of the troopers.
was

entitled

to

do

on

these

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The court simply concluded, as it
facts,

that

the

Government

had

failed to meet its burden of proof.
The absence of probable cause to arrest Patiutka for any
offense 2 at the moment Trooper Moore decided to continue the
search without Patiutka’s consent renders the search incident to
arrest exception inapplicable here.
541.

See, e.g., Han, 74 F.3d at

Probable cause to arrest arose only after the officers

discovered the blank credit cards, credit card embosser, and
other evidence of identity theft and fraud.

A finding that this

search was incident to Patiutka’s subsequent arrest would permit
the Government “to justify the arrest by the search and at the
same time to justify the search by the arrest.”
United States, 333 U.S. 10, 16-17 (1948).

Johnson v.

The Fourth Amendment

forbids this type of unreasonable search.

III.
Next, the Government argues that the warrantless search was
valid under the automobile exception to the warrant requirement.

2

As noted above, the Government does not argue that at the
time Patiutka revoked consent the officers had probable cause to
arrest him for any offense other than the false identity
offense.
Thus, the Government does not contend that it had
probable cause to arrest Patiutka for access device fraud or
aggravated identity theft, the offenses for which he was later
charged.
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A.
Police

officers

do

not

need

a

warrant

to

search

an

automobile if they have probable cause to believe it contains
evidence of criminal activity.
798, 809 (1982).

United States v. Ross, 456 U.S.

Probable cause exists when “the known facts

and circumstances are sufficient to warrant a man of reasonable
prudence in the belief that contraband or evidence of a crime
will be found.”
(1996).

Ornelas v. United States, 517 U.S. 690, 696

Probable cause deals in probabilities that “are not

technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act.”
(1949).

Brinegar v. United States, 338 U.S. 160, 175

Under the automobile exception, police officers may

search for evidence of any crime, not just of the offense that
provided the basis for the arrest.

United States v. Baker, 719

F.3d 313, 319 (4th Cir. 2013).
When Trooper Moore decided to continue to search the SUV
without Patiutka’s consent, the district court found that he was
aware

of

the

following

facts:

“(1)

for

reasons

unknown

to

[Trooper Moore], Trooper Cox [had] requested a search of the
vehicle;

(2)

there

were

three

suitcases

in

the

back

of

Patiutka’s vehicle; (3) one bag contained a credit card reader;
[and] (4) a larger suitcase had four new iPads on top of it.”

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concluded

that

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these

facts

did

not

provide

an

objective basis for probable cause to search.
We agree.

A driver could legally possess the credit card

reader and iPads that Trooper Moore had uncovered at that point.
While

the

trooper

found

their

combination

and

placement

suspicious, innocuous explanations for a driver’s possession of
these items abound.

For example, many small business owners now

utilize

attached

iPads

with

credit

traditional point-of-sale systems.

card

readers

in

lieu

of

To be sure, that is not how

Patiutka intended to employ the iPads, but neither Trooper Moore
nor any of the officers present asked Patiutka about the items. 3
Like

the

district

court,

we

acknowledge

that

the

facts

known to Trooper Moore when he ordered the search to continue
“may

well

meet

suspicion.”
for

the

the

standard

for

a

reasonable

If so, the correct course of action would have been

troopers

to

question

Patiutka

uncovered during the consensual search.
arising

out

articulable

of

this

conversation

supported probable cause to search.

about

the

contents

Additional information
could

potentially

have

But neither Trooper Moore

nor any of the other troopers participating in the search paused

3

Additionally, Trooper Moore could not infer evidence of a
basis for a warrantless search from the fact that Trooper Cox
had asked Patiutka if the police could search the car. Trooper
Cox testified that he may ask permission to search a car when he
lacks probable cause.
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speak

with

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Patiutka

resuming the search.
that

the

police

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before

placing

him

in

handcuffs

and

Because the automobile exception requires

have

probable

cause

(not

just

reasonable

articulable suspicion) to search, the exception does not apply
here.
B.
The

Government

contends

that

an

additional

piece

of

information provided Trooper Moore with sufficient knowledge to
support

probable

cause

to

search.

Invoking

the

collective-

knowledge doctrine, the Government insists that Trooper Cox’s
suspicions regarding Patiutka’s potentially false identification
should be imputed to Trooper Moore.

The Government’s theory is

that, when combined with the other pieces of information known
independently to Trooper Moore, these facts tip the scale in
favor of probable cause.
the

collective-knowledge

The district court declined to apply
doctrine

here

because

“simply did not communicate with each other.”

the

officers

We agree with the

district court that the doctrine does not save this search, but
for the alternative reason that, as we explained above, Trooper
Cox had no probable cause to communicate to a fellow officer.
The collective-knowledge doctrine “simply directs [a court]
to

substitute

the

knowledge

of

the

instructing

officer

or

officers for the knowledge of the acting officer; it does not
permit [a court] to aggregate bits and pieces of information
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from among myriad officers.”

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United States v. Massenburg, 654

F.3d 480, 493 (4th Cir. 2011).

In Massenburg, we rejected a

more expansive version of the doctrine that the Government had
proposed and that several circuits have adopted because “[u]nder
th[at] proposed rule, it would be irrelevant that no officer had
sufficient information to justify a search or seizure.”

Id.

Thus in Massenburg we held that the instructing officer alone
must have sufficient information to justify an arrest or search
in order for the acting officer to benefit from the collectiveknowledge doctrine.

Id. at 495-96.

In sum, the same credibility determination by the district
court

that

arrest

precludes

exception

knowledge

application

also

argument.

thwarts

Here

the

of
the

the

search

Government’s

district

court

incident

to

collective-

found

that

the

instructing officer, Trooper Cox, did not have probable cause to
arrest

Patiutka

search

proceeded

When

Patiutka

when

he

solely

revoked

initiated
on

his

the

the

basis

consent,

search.
of

Rather,

Patiutka’s

Trooper

Cox

the

consent.

halted

the

search, indicating to the other officers that a basis for the
search no longer existed.
Trooper

Moore

officer,

had

understood
halted

the

The record evidence is clear that
that

Trooper

search.

determined to continue the search.

Cox,

the

Nonetheless,

instructing

Trooper

Moore

Massenburg teaches that “the

only officer making a reasonable suspicion or probable cause
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determination is the instructing officer.”

654 F.3d at 495 n.6.

Here,

Cox,

the

instructing

determination.

officer,

Instead,

Trooper

Trooper
Cox

made

instructed

no

his

such
fellow

officers to search the SUV when he believed he had Patiutka’s
consent and immediately called off the search when he understood
that he no longer had consent.

Accordingly, the collective-

knowledge doctrine offers no assistance to the Government.

IV.
For
proposed

the

foregoing

exceptions

requirement apply here.

reasons,
to

the

neither

of

the

Government’s

Fourth

Amendment’s

warrant

Therefore, the judgment of the district

court granting Dmytro Patiutka’s motion to suppress is
AFFIRMED.

15