USA v. Brian Wilkerson

Filing

UNPUBLISHED OPINION FILED. [10-30123 Affirmed] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 01/12/2011 for Appellant Brian L. Wilkerson [10-30123]

USA v. Brian Wilkerson se: 10-30123 Ca

Document: 00511329791 Page: 1 Date Filed: 12/22/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30123 S u m m a r y Calendar December 22, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. B R I A N L. WILKERSON, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Middle District of Louisiana U S D C No. 3:08-CR-00005-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* B r ia n L. Wilkerson entered a conditional guilty plea to possession with in t e n t to distribute ecstacy and possession of a firearm during and in relation to a drug trafficking crime. Wilkerson filed a motion to suppress the evidence, a r g u in g that the initial traffic stop for crossing the fog line was not justified. The district court denied the motion without issuing written findings of fact. Wilkerson reserved the right to appeal the denial of that motion.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 10-30123 Document: 00511329791 Page: 2 Date Filed: 12/22/2010 No. 10-30123 T h is court reviews findings made by a district court on a motion to s u p p r e s s for clear error and the district court's ultimate conclusions on Fourth A m e n d m e n t issues de novo. United States v. Charles, 469 F.3d 402, 405 (5th C ir . 2006). The court views the evidence in the light most favorable to the p r e v a ilin g party, in this case, the Government. Id. "If this review leads us to t h e `definite and firm conviction that a mistake has been committed[,]' then the d is t r ic t court's factual finding must be deemed clearly erroneous." United States v . Lopez-Moreno, 420 F.3d 420, 429-30 (5th Cir. 2005) (quoting Payne v. United S ta te s , 289 F.3d 377, 381 (5th Cir. 2002)). T h e legality of police investigatory stops is tested in two parts. United S ta te s v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc). First, the court e x a m in e s whether the officer's action was justified at its inception, and then in q u ir e s whether the officer's subsequent actions were reasonably related in s c o p e to the circumstances that justified the stop. Terry v. Ohio, 392 U.S. 1, 1 9 ­ 2 0 (1968); Brigham, 382 F.3d at 506. W ilk e r s o n argues that the initial stop was invalid because it was based on D e p u t y Green's subjective belief that Wilkerson crossed the fog line. He also a r g u e s that the deputies lacked probable cause to stop his vehicle. Wilkerson a r g u e s that the district court erred when it failed to make findings of fact on the v a lid it y of the traffic stop when it denied his motion to suppress. Wilkerson cites U n ite d States v. Cole, 444 F.3d 688 (5th Cir. 2006), and United States v. LopezV a ld e z , 178 F.3d 282 (5th Cir. 1999), to argue that his case should be remanded t o the district court for it make fact findings on whether Wilkerson crossed the fo g line in violation of La. R.S. 32:79. A police officer may stop a vehicle if he has probable cause to believe a t r a ffic violation has occurred. Whren v. United States, 517 U.S. 806, 810 (1996); C o le , 444 F.3d at 689. If an officer stops a vehicle for conduct by a motorist that d o e s not in fact constitute a traffic violation, courts are leery of extending the g o o d faith exception to the exclusionary rule to justify the stop. Cole, 444 F.3d 2

Case: 10-30123 Document: 00511329791 Page: 3 Date Filed: 12/22/2010 No. 10-30123 a t 689 (citing Lopez-Valdez, 178 F.3d at 289). In Cole, this court stated that it w a s unclear from the record whether there was a crosswalk, which would have m a d e clear that the defendant had objectively committed a traffic violation, and r e m a n d e d the case to the district court for fact findings. Id. at 690. U n lik e the traffic law at issue in Cole, the traffic law in this case is not a m b ig u o u s or contingent on another factor, such as the presence of a crosswalk. Louisiana Revised Statute 32:79 provides: "A vehicle shall be driven as nearly a s practicable entirely within a single lane and shall not be moved from such la n e until the driver has first ascertained that such movement can be made with s a fe t y ." Deputy Green testified that he observed Wilkerson drive outside his la n e of travel and cross over the fog line and that when he told Wilkerson why h e had been stopped, Wilkerson responded that he dropped his cell phone. Wilkerson did not rebut this testimony. T h a t the district court did not make fact findings does not preclude r e s o lu t io n by this court of the issue whether the traffic stop was valid. See U n ite d States v. Silva, 957 F.2d 157, 158-59 (5th Cir. 1992); see also United S t a t e s v. Scroggins, 599 F.3d 433, 440 (5th Cir.), cert. denied, 131 S. Ct. 158 (2 0 1 0 ). A reasonable review of the evidence in the light most favorable to the G o v e r n m e n t indicates that Deputy Green's action in stopping Wilkerson was ju s tifie d at its inception because Wilkerson violated La. R.S. 32:79. See Charles, 4 6 9 F.3d at 405. B e c a u s e the traffic stop was objectively valid, the good faith exception is n o t implicated, and the issue becomes whether Deputy Green's actions s u b s e q u e n t to the stop were reasonably related in scope to the circumstances t h a t justified the stop. See Brigham, 382 F.3d 506. Furthermore, because the in it ia l stop was valid, Wilkerson's argument that the deputies lacked probable c a u s e to stop him is unavailing. See Cole, 444 F.3d at 689. Wilkerson argues that, assuming for the sake of argument that the initial s t o p was valid, his continued detention beyond the original reason for the stop 3

Case: 10-30123 Document: 00511329791 Page: 4 Date Filed: 12/22/2010 No. 10-30123 w a s prolonged in order for the officers to develop suspicion. For a traffic stop to b e legal for Fourth Amendment purposes, an officer's subsequent actions must b e reasonably related in scope to the circumstances that caused him to stop the v e h ic le . Brigham, 382 F.3d at 507-08. As part of a traffic stop, an officer can r e q u e s t a driver's license and run a computer check. Brigham, 382 F.3d at 508 (c it in g United States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999), opinion c o r r e c te d on other grounds on denial of reh'g, 203 F.3d 883 (5th Cir. 2000), and U n ite d States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993)). However, when the p u r p o s e of the stop is resolved and the officer's initial suspicions are verified or d is p e lle d , "the detention must end unless there is additional reasonable s u s p ic io n supported by articulable facts." United States v. Gonzalez, 328 F.3d 7 5 5 , 758 (5th Cir. 2003). W ilk e r s o n 's ankle slapping, shifty eyes, shaky hands, and trembling body p r o v id e articulable facts by which Deputy Green could reasonably suspect that a crime had been committed. See Brigham, 382 F.3d at 508. Thus, a reasonable r e v ie w of the evidence, in the light most favorable to the Government, indicates t h a t the deputies' actions subsequent to the initial stop were reasonably related in scope to the circumstances that justified the stop. See Scroggins, 599 F.3d at 440. W ilk e r s o n also argues that Deputy Green lacked probable cause to search h is vehicle because the canine alert was not credible. Once a dog alerts to the e x t e r io r of a vehicle, officers have probable cause to search it. United States v. W illia m s , 365 F.3d 399, 406 (5th Cir. 2004); Dortch, 199 F.3d at 197. Where the e v id e n c e indicates that a drug dog has been properly trained and certified, this c o u r t has found the record to support the district court's finding that the dog's a le r t was reliable and established probable cause for a search of the vehicle. United States v. Sanchez-Pena, 336 F.3d 431, 444 (5th Cir.2003; see also United S ta te s v. Clayton, 374 F. App'x 497, 499 (5th Cir. 2010).

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Case: 10-30123 Document: 00511329791 Page: 5 Date Filed: 12/22/2010 No. 10-30123 T h e suppression hearing testimony established that Jackson was properly t r a in e d and certified, and there was no evidence that Deputy Green encouraged t h e canine to alert. Wilkerson also adduced no testimony establishing that D e p u t y Green had retrained Jackson to obey new commands, verbal or o t h e r w is e . A reasonable review of the evidence, in the light most favorable to t h e Government, indicates that Jackson's alert was reliable and established p r o b a b le cause for Deputy Green to search the vehicle. See Scroggins, 599 F.3d a t 440. A F F IR M E D .

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