United States v. Thomas Coleman

Filing

OPINION FILED - THE COURT: William Jay Riley, C. Arlen Beam and Kermit E. Bye AUTHORING JUDGE:William Jay Riley (PUBLISHED) [3972704] [12-1400]

United States Court of Appeals
For the Eighth Circuit
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No. 12-1400
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Thomas Coleman
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska
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Submitted: October 30, 2012
Filed: November 8, 2012
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RILEY, Chief Judge, BEAM and BYE, Circuit Judges.
____________
RILEY, Chief Judge.
Thomas Coleman conditionally pled guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). Coleman reserved the right to appeal
the district court’s1 denial of his motions to suppress evidence seized from his
1

The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, adopting the recommendation of the Honorable Cheryl R. Zwart, United

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vehicle. Coleman also appeals the armed career criminal sentence enhancement he
received under 18 U.S.C. § 924(e). Having jurisdiction under 28 U.S.C. § 1291, we
affirm.
I.

BACKGROUND
On July 31, 2010, Coleman was driving his motor home on Interstate 80 in Hall
County, Nebraska. Nebraska State Patrol Trooper Jason Bauer observed two vehicles
with Florida license plates traveling eastbound on Interstate 80 under the posted
speed limit. Trooper Bauer began following the vehicles and observed the second
vehicle, Coleman’s motor home, swerve. The passenger-side tires of the motor home
twice crossed over the fog line at the shoulder of the highway. Trooper Bauer
stopped Coleman for driving on the shoulder.
Trooper Bauer asked Coleman to sit with him in his patrol car while the officer
wrote a warning citation and checked Coleman’s license status and criminal history.
Trooper Bauer questioned Coleman about his travel plans and whether he had a
criminal history, which Coleman denied. The state patrol dispatch was unable to
check Coleman’s criminal history with only a name and date of birth so Trooper
Bauer relayed Coleman’s social security number. Dispatch responded, and Trooper
Bauer learned Coleman had an extensive criminal history, including drug, robbery,
and weapons offenses. Trooper Bauer again asked Coleman if he had ever been
arrested, and Coleman again said he had not. When Trooper Bauer questioned
Coleman about drug use, Coleman admitted he used medically prescribed marijuana
while in California a few months prior. Trooper Bauer inquired if Coleman had any
medical marijuana with him. Coleman replied that he did in the front part of the
motor home. Trooper Bauer then placed Coleman in the backseat of his patrol car
while he entered the motor home.

States Magistrate Judge for the District of Nebraska.
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Trooper Bauer entered the motor home through the passenger-side door where
Coleman had exited the vehicle. Trooper Bauer conducted a sweep of the motor
home to ensure it was unoccupied. In a large compartment under the bed, Trooper
Bauer located a black weapons-type bag. Trooper Bauer opened the bag and
discovered a high-point rifle and ammunition. Trooper Bauer confirmed with
dispatch that Coleman was a convicted felon. Trooper Bauer then located marijuana
in the front of the motor home.
On October 19, 2010, a grand jury charged Coleman with being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Coleman moved to
suppress the evidence obtained from the stop and the search of the motor home. After
a hearing, the magistrate judge recommended denial of Coleman’s motions2 because
(1) Trooper Bauer had probable cause for the stop, or alternatively the stop was a
lawful investigatory detention under Terry v. Ohio, 392 U.S. 1 (1968); (2) any
extension of the stop was de minimis, and justified by reasonable suspicion; (3) the
search of the motor home was justified by probable cause and also as a protective
sweep necessary for officer safety; and (4) Coleman was not “in custody” for Miranda
purposes when Trooper Bauer questioned him. On June 3, 2011, after de novo
review, the district court adopted the magistrate judge’s findings and recommendation
and denied Coleman’s motions to suppress in all respects. On September 29, 2011,
Coleman entered a conditional guilty plea, reserving his right to appeal the district
court’s suppression decision.
At sentencing, the district court applied an armed career criminal sentence
enhancement under 18 U.S.C. § 924(e), which mandates a minimum 15-year prison
sentence. Coleman objected to each of the three prior convictions offered to support

2

Coleman filed a motion to suppress, later amended the motion to suppress, and
then filed a supplemental motion. The magistrate judge’s recommendation addressed
all of Coleman’s motions to suppress evidence.
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the enhancement. The district court overruled Coleman’s objections, finding all three
of the convictions met the statutory requirements under 18 U.S.C. § 924(e). The
district court sentenced Coleman to 180 months imprisonment.
On appeal, Coleman argues the district court erred in finding (1) probable
cause existed for the stop; (2) reasonable suspicion supported extension of the stop;
(3) Coleman was not subjected to custodial interrogation; (4) probable cause or
concern for the officer’s safety justified search the motor home; (5) Coleman’s 1998
robbery and aggravated assault conviction qualified as a violent felony under 18
U.S.C. § 924(e); (6) Coleman’s 1999 possession of marijuana with intent to distribute
conviction qualified as a serious drug offense under 18 U.S.C. § 924(e); and
(7) Coleman’s 1994 attempted sale of a controlled substance conviction also qualified
as a serious drug offense under 18 U.S.C. § 924(e).
II.

DISCUSSION
A.
Probable Cause for the Stop
“We review the district court’s factual findings in support of its denial of a
motion to suppress for clear error and its legal determination of probable cause de
novo.” United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005). “A district
court’s findings regarding witness credibility are ‘virtually unreviewable on appeal.’”
United States v. Taylor, 519 F.3d 832, 835 (8th Cir. 2008) (quoting United States v.
Candie, 974 F.2d 61, 64 (8th Cir. 1992)).
A traffic violation, no matter how minor, provides an officer with probable
cause to stop the driver. See United States v. Jones, 275 F.3d 673, 680 (8th Cir.
2001). “An officer is justified in stopping a motorist when the officer ‘objectively has
a reasonable basis for believing that the driver has breached a traffic law.’” United
States v. Mallari, 334 F.3d 765, 766-67 (8th Cir. 2003) (quoting United States v.
Thomas, 93 F.3d 479, 485 (8th Cir. 1996)). The government argues Trooper Bauer
observed Coleman violate Neb. Rev. Stat. § 60-6,142, which declares: “No person
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shall drive on the shoulders of highways,” with three narrow exceptions. The district
court found credible Trooper Bauer’s testimony that he twice observed Coleman
swerve over the fog line separating the right lane of the highway from the shoulder.
Coleman argues momentarily crossing onto the shoulder does not constitute a
violation of the statute and therefore the trooper lacked probable cause to stop
Coleman’s vehicle. We disagree.
“[S]tate courts are the ultimate expositors of state law.” United States v. Adler,
590 F.3d 581, 584 (8th Cir. 2009) (quoting Mullaney v. Wilbur, 421 U.S. 684, 691
(1975)) (internal quotation marks omitted). The magistrate judge’s recommendation
in this case noted there was little Nebraska case law specifically interpreting the
statutory language at issue. What case law existed provided no authority to support
Coleman’s claim that momentarily crossing the fog line did not constitute a violation
of the law. See State v. Davis, No. A-07-104, 2007 WL 2257886, at *3 (Neb. Ct.
App. Aug. 7, 2007).
Coleman cites a federal district court case, United States v. Magallanes, 730
F. Supp. 2d 969, 977 (D. Neb. 2010), which held a driver violates Neb. Rev. Stat.
§ 60-6,142 only if he uses the shoulder as a “thoroughfare” and not by momentarily
crossing onto the shoulder. However, Magallanes was decided a few days after
Trooper Bauer made his stop of Coleman’s motor home, and our court’s interpretation
of the Nebraska statute—then binding on the Magallanes district court—was that
momentarily crossing the fog line was a violation. See Mallari, 334 F.3d at 767;
United States v. Pollington, 98 F.3d 341, 342 (8th Cir. 1996). Although Nebraska’s
highest court had not—and has not yet—issued an authoritative interpretation of the
statute,3 “this Court should not expect state highway patrolmen to interpret the traffic
3

A Nebraska Court of Appeals case, decided after the magistrate judge’s
recommendation, concluded that briefly crossing the fog line and traveling on the
shoulder does constitute a traffic violation under Nebraska law. See State v. Medina,
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laws with the subtlety and expertise of a criminal defense attorney.” United States
v. Sanders, 196 F.3d 910, 913 (8th Cir. 1999). Considering the precedent at the time
of the stop, Trooper Bauer had an objectively reasonable basis for believing Coleman
violated the statute. The district court did not err in overruling Coleman’s motion to
suppress on the basis of a lack of probable cause to stop Coleman.
B.

Reasonable Suspicion to Extend the Stop

“A constitutionally permissible traffic stop can become unlawful, . . . ‘if it is
prolonged beyond the time reasonably required to complete’ its purpose.” United
States v. Peralez, 526 F.3d 1115, 1119 (8th Cir. 2008) (quoting Illinois v. Caballes,
543 U.S. 405, 407 (2005)). An officer may detain the occupants of a vehicle while
performing routine tasks such as obtaining a driver’s license and the vehicle’s
registration and inquiring about the occupants’ destination and purpose. See id. “[I]f
the officer develops reasonable suspicion that other criminal activity is afoot, the
officer may expand the scope of the encounter to address that suspicion.” Id. at 1120.
Reasonable suspicion is “‘a particularized and objective basis’ for suspecting criminal
activity.” United States v. Linkous, 285 F.3d 716, 720 (8th Cir. 2002) (quoting
Ornelas v. United States, 517 U.S. 690, 699 (1996)). We review de novo whether the
facts of this case created a reasonable suspicion. See id.

Coleman argues Trooper Bauer’s questioning regarding drug use improperly
exceeded the scope of a normal traffic stop. We disagree. Trooper Bauer was
No. A-11-377, 2011 WL 2577268, at *5 (Neb. Ct. App. June 28, 2011). On October
11, 2012, the Supreme Court of Nebraska heard argument on these issues in State v.
Magallanes, No. S-11-1033, but, as of the date of this opinion, has not published a
decision. We find it unnecessary to await an authoritative interpretation of state law
because Trooper Bauer, at the time of the stop, acted “in objectively reasonable
reliance on binding appellate precedent.” Davis v. United States, 546 U.S. ___, ___,
131 S. Ct. 2419, 2423-24 (2011).
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justified in asking Coleman about drug use in order to eliminate drug use as a
possible cause of Coleman’s swerving. Thereafter, Coleman’s dishonesty regarding
his criminal history reasonably raised Trooper Bauer’s suspicions and prompted him
to ask clarifying questions. See United States v. Riley, 684 F.3d 758, 763-64 (8th
Cir. 2012) (finding undue nervousness, conflicting answers, and misrepresentation
of drug-related criminal history gave the officer reasonable suspicion criminal activity
was afoot); United States v. Suitt, 569 F.3d 867, 872 (8th Cir. 2009) (finding evasive
and incomplete answers gave the officer reasonable suspicion to prolong the traffic
stop for additional questioning).

Even if Trooper Bauer lacked reasonable suspicion to extend the questioning,
any intrusion on Coleman’s Fourth Amendment rights was de minimis. Coleman’s
traffic stop was permissibly prolonged for a brief period because the state patrol
dispatch was unable to obtain Coleman’s personal history information by using only
his name and date of birth. See United States v. Olivera-Mendez, 484 F.3d 505, 510
(8th Cir. 2007) (“When there are complications in carrying out the traffic-related
purposes of the stop . . . police may reasonably detain a driver for a longer duration
than when a stop is strictly routine.”). After Trooper Bauer provided Coleman’s
social security number to dispatch and received Coleman’s criminal history, Trooper
Bauer’s additional questioning was brief, lasting only a couple of minutes. We have
upheld such short detentions as de minimis intrusions. See United States v.
Robinson, 455 F.3d 832, 834 (8th Cir. 2006).

C.

Custodial Interrogation

Coleman argues his Fifth Amendment rights were violated when Trooper Bauer
questioned him without first advising Coleman of his Miranda rights. Miranda
warnings are required when an individual has been subjected to custodial
interrogation. See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). In reviewing

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custody determinations, we will “uphold findings of historical fact unless clearly
erroneous, but . . . apply the controlling legal standard to the historical facts utilizing
an independent review.” United States v. Axsom, 289 F.3d 496, 500 (8th Cir. 2002).
Although a motorist is technically seized during a traffic stop, Miranda
warnings “are not required where the motorist is not subjected to the functional
equivalent of a formal arrest.” United States v. Morse, 569 F.3d 882, 884 (8th Cir.
2009); see also Berkemer v. McCarty, 468 U.S. 420, 441 (1984) (holding Miranda
warnings were not required where the defendant “failed to demonstrate . . . he was
subjected to restraints comparable to those associated with a formal arrest”).

The district court found Coleman was seated in the front seat of Trooper
Bauer’s patrol car when he was questioned. Coleman was not handcuffed and had not
been told his detention would be anything other than temporary. Trooper Bauer’s
tone was conversational and the questions were limited in number and scope. Based
on the totality of the circumstances, the district court did not err when it found
Coleman was not subjected to restraints comparable to those of a formal arrest.
Trooper Bauer was not required to give Miranda warnings before questioning
Coleman.

D.

Search of the Motor Home

We review the district court’s findings of fact for clear error, and we review de
novo whether the search of Coleman’s motor home violated the Fourth Amendment.
See Olivera-Mendez, 484 F.3d at 509. Officers may search a vehicle without a
warrant if they have probable cause to believe the vehicle contains contraband. See
United States v. Ross, 456 U.S. 798, 800 (1982). This automobile exception applies
equally to motor homes. See California v. Carney, 471 U.S. 386, 390-94 (1985).

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Coleman told Trooper Bauer there was marijuana in his vehicle, providing
probable cause to search the vehicle for drugs. “If probable cause justifies the search
of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and
its contents that may conceal the object of the search.” Ross, 456 U.S. at 825.
Trooper Bauer could lawfully search every part of the motor home where marijuana
might have been, including under the bed where the weapon was found.

Assuming the trooper lacked probable cause to search beyond where Coleman
told him the marijuana was located in the motor home, the trooper was justified, at
the time, in performing a protective sweep to make sure no passengers were hiding
in the motor home. See United States v. Thomas, 249 F.3d 725, 730 (8th Cir. 2001)
(explaining the “search of the van was reasonably necessary for the officers’ personal
safety in conducting the stop because other occupants in the van could pose a
significant danger to the officers”).

Coleman argues the motor home was more like a residence than a vehicle, and
as such, the sweep should have been limited to the space within Coleman’s immediate
control. However, a motor home in transit on a public highway is being used as a
vehicle and is therefore subject to a reduced expectation of privacy. See Carney, 471
U.S. at 392-93. In the context of a traffic stop, we have repeatedly held “officers may
take such additional steps as are reasonably necessary to protect their personal safety
and to maintain the status quo during the course of the stop.” Thomas, 249 F.3d at
729 (quoting United States v. Doffin, 791 F.2d 118, 120 (8th Cir. 1986)) (internal
quotation marks omitted). The district court found that the space under the bed was
large enough to hide a person, and the sweep justifiably could extend to this area for
the officer’s protection from a possible hidden assailant.

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Once Trooper Bauer observed the weapons-type bag in plain view during the
lawful protective sweep, and the bag was readily identifiable as a gun case, the
trooper had probable cause to believe the bag contained contraband, see, e.g., United
States v. Banks, 514 F.3d 769, 774-75 (8th Cir. 2008), because Trooper Bauer knew
Coleman’s criminal history included felony offenses. Because the search of the motor
home was conducted with probable cause, and was reasonable otherwise, the district
court did not err in finding Coleman’s Fourth Amendment rights had not been
violated.

E.

Armed Career Criminal Act Enhancement

Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), a person
who violates § 922(g) (prohibiting any person who has been convicted of a crime
punishable by imprisonment of more than one year from possessing or transporting
a firearm in interstate commerce) and has three previous convictions “for a violent
felony or a serious drug offense” shall be subject to a minimum term of fifteen years
imprisonment. Coleman contends the district court erred in determining Coleman’s
three prior convictions each constituted “a violent felony or a serious drug offense.”
1.

1998 Robbery and Aggravated Assault Conviction

We review de novo whether a prior conviction qualifies as a violent felony
under 18 U.S.C. § 924(e). See United States v. Jones, 574 F.3d 546, 549 (8th Cir.
2009). A “violent felony” is defined in § 924(e)(2)(B) as:

any crime punishable by imprisonment for a term exceeding one
year . . . that–
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or

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(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.
In determining whether an offense is a violent felony under the statute, we
apply the “categorical approach” adopted by the Supreme Court in Taylor v. United
States, 495 U.S. 575, 600 (1990). See United States v. Forrest, 611 F.3d 908, 909-10
(8th Cir. 2010). “Under this approach, [we] look[] to the fact of conviction and the
statutory definition of the prior offense and determine[] whether the full range of
conduct encompassed by the state statute qualifies to enhance the sentence.” United
States v. Sonnenberg, 556 F.3d 667, 670 (8th Cir. 2009). Where the statute provides
alternative sets of elements, one or more of which does not meet the criteria of a
violent felony, we will utilize the “modified categorical approach” and examine “the
charging document, jury instructions, plea agreement or plea hearing transcript, and
comparable judicial records.” Forrest, 611 F.3d at 910; see also Shepard v. United
States, 544 U.S. 13, 16 (2005).

Coleman argues his 1998 robbery/aggravated assault conviction in Georgia was
insufficient for enhancement because the conviction record did not specify under
which statute Coleman was convicted and the district court, therefore, did not have
sufficient information to determine whether Coleman faced a year or more in prison.
We disagree.

The Georgia indictment charged Coleman (under the alias “Marbo Shipman”)
with “unlawfully, with intent to commit theft, by the use of force, tak[ing] from the
person and immediate present [sic] of [victim], a purse and contents of value and the
property of the said [victim].” The Georgia statute in place at the time of the
conviction used matching language, describing the crime of robbery as when a person

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“with intent to commit theft, . . . takes property of another from the person or the
immediate presence of another . . . [b]y use of force.” The statute specified a
punishment for a conviction of one to twenty years imprisonment.

Coleman also was convicted of aggravated assault in the 1998 proceedings.
The indictment charged Coleman with committing “an assault upon the person of [the
victim], by throwing her to the ground and striking and beating her with his closed
fists, a means likely to cause serious bodily injury when used offensively against a
person.” The Georgia statute offered into evidence described the crime of aggravated
assault as when a person “assaults (1) [w]ith intent to murder, to rape, or to rob;
(2) [w]ith a deadly weapon or with any object, device, or instrument which, when
used offensively against a person, is likely to or actually does result in serious bodily
injury.” The statute specified a punishment of one to twenty years imprisonment.

Coleman does not point to any other statute which might have applied to the
charges. The indictments and statutes demonstrate that both of the offenses meet the
definition of a violent felony under ACCA.

2.

1999 Marijuana Possession Conviction

“We review de novo whether a prior conviction constitutes a serious drug
offense under [18 U.S.C.] § 924(e).” United States v. Bynum, 669 F.3d 880, 885 (8th
Cir. 2012). A “serious drug offense” is defined in § 924(e)(2)(A)(ii) to include “an
offense under State law, involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance . . . for which a maximum
term of imprisonment of ten years or more is prescribed by law.” Again, we use the
categorical approach. See Bynum, 669 F.3d at 885.

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Coleman argues his 1999 conviction for possession of marijuana with intent
to distribute was insufficient because it failed to specify a statute and therefore the
district court did not have sufficient information to determine whether Coleman faced
a year or more in prison. The indictment charged Coleman with “unlawfully
possess[ing] and hav[ing] under her [sic] control marijuana, with intent to distribute
said marijuana.” Under the Georgia statute applicable at the time of the conviction,
it was “unlawful for any person to possess, have under his control, manufacture,
deliver, distribute, dispense, administer, purchase, sell, or possess with intent to
distribute marijuana.” The specified punishment was one to ten years imprisonment.
Coleman argued at sentencing the section of the statute providing the
applicable punishment stated, “except as otherwise provided” in two other named
sections, and the government failed to prove that the other two sections did not apply.
After a recess, the government provided copies of the other sections as well as two
Georgia cases, Tripp v. State, 476 S.E.2d 844, 846 (Ga. Ct. App. 1996) (applying
section 16-13-2 of the statute) and Capers v. State, 470 S.E.2d 887, 894 (Ga. Ct. App.
1996) (applying section 16-13-31 of the statute), which demonstrated one of the listed
sections imposed statutory minimum sentences for certain quantities of drugs, and the
other allowed for deferral to drug court for first time offenders. There was no
indication either of the statutes applied to Coleman’s conviction. The 1999
possession of marijuana with intent to distribute conviction qualifies as a serious drug
offense under ACCA.

3.

1994 Attempted Sale of a Controlled Substance Conviction

Coleman argues his 1994 conviction for “attempted” sale of a controlled
substance does not qualify as a serious drug offense under 18 U.S.C. § 924(e)(2)(A)
because the evidence was insufficient to establish whether Coleman had counsel at
the time of conviction. After the government has proved the fact of conviction, the

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defendant then has the burden of showing the conviction is constitutionally infirm.
See United States v. Levering, 431 F.3d 289, 294 (8th Cir. 2005). Coleman did not
meet this burden.

Coleman further argues the inclusion of “attempted” under the definition of
violent felony in § 924(e)(2)(B)(i) suggests an attempted offense should not qualify
as a serious drug offense under § 924(e)(2)(A), which does not explicitly include the
word “attempted.” We disagree. As the Second Circuit noted in United States v.
King, 325 F.3d 110, 113 (2d Cir. 2003), the word “involving” in the statutory
definition of a serious drug offense suggests an expansive reading. Congress has
demonstrated that it does not view attempted drug trafficking offenses as any less
serious than completed acts. See, e.g., 21 U.S.C. § 846 (“Any person who attempts
or conspires to commit any offense defined in this subchapter shall be subject to the
same penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.”). Because the “attempted criminal sale of a
controlled substance” involves distributing or possessing with intent to distribute a
controlled substance, this conviction also qualifies under ACCA.

The district court did not err when it found Coleman eligible for an armed
career criminal sentence enhancement, sentencing him to the mandatory minimum of
fifteen years imprisonment.

III.

CONCLUSION
We affirm.
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