UNITED STATES оf America, Plaintiff-Appellee v. Paul BEARD, Defendant-Appellant.
No. 11-3311.
United States Court of Appeals, Eighth Circuit.
Submitted: Jan. 18, 2013. Filed: March 8, 2013.
708 F.3d 1062
The majority cites Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 1213 (11th Cir.2009) (per curiam) and Schirmer v. Edwards, 2 F.3d 117 (5th Cir.1993) as cases that applied Burson to uphold bans on material unrelated to any issue on the ballot. Supra at 1058. In both of those cases, however, the focus of the restrictions was the prevention of harassment of voters by exit solicitors seeking voter signatures on petitions as voters left the polls. See Browning, 572 F.3d at 1218-19; Schirmer, 2 F.3d at 122-23. I fail to see how this broad restriction, which prohibits a voter from wearing any political emblem, insignia, or slogan that is unrelated to an issue or candidate on the ballot, would rationally and reasonably help maintain the “peace, order, and decorum” of the polling place, “protect[] voters frоm confusion or undue influence,” or “preserv[e] the integrity of [Minnesota‘s] election process.”7 Further, the record in this case is devoid of facts which demonstrate that any disruption of the “peace, order, and decorum” of the Minnesota election process has occurred by virtue of voters wearing a political emblem, insignia, or slogan that is unrelated to an issue or candidate on the ballot. Although the existence of a disruption is not necessary before the state imposes reasonable limitations on speech, had such facts existed, then perhaps I could agree that the restrictions are reasonable. Without further development of the record to reflect how these restrictions are reasonable limits on free speech which rationally relate to the state‘s interest in maintaining order and preserving integrity at the polling place, I cannot join in the majority‘s rejection of plaintiffs’ constitutional challenge on facial grounds.
Accordingly, I respectfully dissent from the majority‘s affirmance of the district court‘s dismissal of the plaintiffs’ facial challenge as to the third sentence of
Edward O. Walker, USA, argued, Little Rock, AR, for appellee.
Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
On April 4, 2009, Arkansas State Trooper Chris Goodman (“Goodman“) discovered more than 180 pounds of raw marijuana in Paul Beard‘s (“Beard“) car trunk after pulling Beard over for alleged traffic violations. Beard moved to suppress the marijuana, arguing that the search violated his Fourth Amendment rights because Goodman did not have a lawful reason for stopping his vehicle. After a hearing, the district court1 denied Beard‘s motion. Beard conditionally pled guilty to conspiracy to possess with the intent to distribute marijuana in violation of
I.
At the suppression hearing, Goodman testified that he was parked on the shoulder of the road after completing a traffic stop on an unrelated vehicle. As he was waiting to pull into traffic, he looked behind him and saw Beard‘s car approaching in the right-hand lane. Once Beard‘s car “got within 50 yards or so, it kind of jerked to the left and got partially in the left lane but not all the way.” After Beard passed Goodman, Beard got back into the right lane but swerved ontо the shoulder. Goodman then pulled Beard over for violating Arkansas traffic laws concerning careless driving. Goodman testified that as soon as Beard rolled down his car window at the beginning of the traffic stop, Goodman smelled raw marijuаna and immediately decided that he was going to search the vehicle. After placing Beard into the back of his patrol car and asking him some questions, Goodman searched Beard‘s vehicle and discovered the raw marijuanа in the trunk.
Beard‘s testimony at the suppression hearing painted a different picture of the events leading up to the traffic stop. Beard testified that he was traveling in the right lane as he approached Goodman‘s vehicle, that there were several cars in the left lane preventing him from moving over, and that he slowed down until those cars passed him so that he could move safely into the left lane. He denied “jerking” his car into the left lane and denied crossing ontо the right shoulder. Beard also submitted a video of the traffic stop, recorded from the forward-facing camera in Goodman‘s patrol car, that Beard argued corroborated his version of events.
After listening to the testimony and viewing the video, the district court denied Beard‘s suppression motion. United States v. Beard, No. 4:09CR00183-01 GTE, slip op. at 8 (E.D.Ark. Oct. 26, 2010). In12
II.
“We review de novo the district court‘s determinatiоn that reasonable suspicion and probable cause existed. We review the district court‘s factual findings under a clearly erroneous standard.” United States v. Donnelly, 475 F.3d 946, 951 (8th Cir.2007) (internal citations omitted). A district court‘s factual finding is clearly erroneous if the reviewing court “is left with the definite and firm conviction that a mistake has been committed.” Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir.2011) (internal quotation marks omitted). However, a reviewing court may not “reverse the finding of the trier of fact simply because it would have decided the case diffеrently if finding the facts de novo.” Id.
Under the Fourth Amendment, law enforcement officers may stop a vehicle if they have “an articulable and reasonable suspicion that a traffic violation has occurred,” even if the traffic violation is only minor. United States v. Washington, 455 F.3d 824, 826 (8th Cir.2006). Under what is termed the “automobile exception” to the warrant requirement, an officer who has lawfully stopped a vehicle can search the vehicle without a warrant if the officer has probable cause. United States v. Mayo, 627 F.3d 709, 713–14 (8th Cir.2010). “Probable cause exists when, given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime will be found in a particular рlace.” Id. (internal quotation marks omitted). The smell of marijuana in a vehicle can establish probable cause to search the vehicle for drugs. United States v. Peltier, 217 F.3d 608, 610 (8th Cir.2000).
Here, an Arkansas statute prohibits “careless driving,” which includes, inter alia, “[i]mproper or unsafе lane changes,” “operat[ing] any vehicle in such a manner which would cause a failure to maintain control,” and “operat[ing] a vehicle in any manner when the driver is inattentive and such inattention is not reasonable and prudent in mаintaining vehicular control.”
Beard concedes that violation of these statutes authorizes an officer to stop the driver‘s vehicle. He also concedes that if Goodman smelled raw marijuana immediately after Beard rolled down his window, then Goodman had рrobable cause to search his car under the automobile exception. However, Beard argues that the district court erred in crediting Goodman‘s testimony concerning the factual basis for the traffic stop because thаt testimony was inconsistent with the video. He asserts
This Court has reviewed the video of the traffic stop. Contrary to Beard‘s assertions, the video does not present a clear picture of the events leading up to the traffic stop. Because of the video‘s poor resolution and distorted perspective, this Court cannot tell which lane Beard‘s car was in after Goodman pulled onto the highway, or whether Beard‘s car ever crossed onto the shoulder. Moreover, the video captures only what occurrеd in front of Goodman‘s patrol car, not what occurred while Beard was approaching the patrol car from behind. After reviewing the video, we cannot say the district court clearly erred in concluding that Goodman had a better view of events than the camera in his patrol car, and consequently in deferring to Goodman‘s description of the incident. See VonWald, 638 F.3d at 915 (“Where there are two permissible views of the evidence, the factfinder‘s choice betwеen them cannot be clearly erroneous.“). Moreover, to the extent Beard generally challenges Goodman‘s credibility, “findings regarding witness credibility are virtually unreviewable on appeal.” See United States v. Coleman, 700 F.3d 329, 334 (8th Cir.2012) (internal quotation marks omitted).
Given Goodman‘s description оf Beard‘s erratic driving, Goodman had “an articulable and reasonable suspicion” that Beard violated Arkansas traffic laws. He consequently had a lawful basis for stopping Beard‘s vehicle. See Washington, 455 F.3d at 826. Moreover, Goodman‘s search of the vehicle and seizure of the marijuana were lawful under the automobile exception because he smelled raw marijuana immediately after Beard rolled down his car window. See Peltier, 217 F.3d at 610. Thus, the district court correctly denied Beard‘s motion to suppress.3
III.
Accordingly, we affirm.
SHEPHERD
CIRCUIT JUDGE