United States Court of Appeals

For the Eighth Circuit

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No. 14-2100

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Geoffrey Scott Gaffney

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa, Waterloo

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 Submitted: February 12, 2015

 Filed: June 16, 2015

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Before BYE, BEAM, and BENTON, Circuit Judges.

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BENTON, Circuit Judge. 

Geoffrey Scott Gaffney conditionally pled guilty to one count of possession

with intent to distribute 500 grams or more of methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1) and 841 (b)(1)(A). He appeals the denial of his motion to

suppress evidence seized from his car. Having jurisdiction under 28 U.S.C. § 1291,

this court affirms. 
I. 

Officer Albert Bovy wasstopped at a red light. Directly in front of him, he saw

Gaffney’s vehicle approaching the intersection from the opposite direction. As the

light changed to green, the vehicle, withoutslowing, moved through the intersection. 

The officer made a u-turn to follow it. Gaffney immediately braked hard and made

a right turn. The officer turned on his lights. The vehicle stopped.

Officer Bovy approached and said he estimated Gaffney was driving 50 to 55

mph in a 35 mph zone. Gaffney replied, “I thought I was only going in the 40s.” 

While he waslooking for an insurance card, dispatch told the officer that Gaffney had

a previous narcotics history and was still involved in illegal narcotics. Returning to

the vehicle, the officer noticed Gaffney appeared nervous with beads of sweat on his

forehead, a shaky voice and hands, and heavy breathing. The officer asked if he had

any drugs or weapons in the vehicle. Gaffney answered “no” but declined permission

to search his vehicle. The officer ordered him to exit the vehicle to prepare for a dog

sniff (the officer had the dog in his car). Conducting a pat-down search, the officer

detected a long round object with a bulb on the end. He asked Gaffney about it. 

Gaffney said nothing was in his pocket. The object was a meth pipe. The officer

arrested Gaffney and had the vehicle towed. An inventory search uncovered two

large Ziploc bags with four pounds of ice meth.

Gaffneymoved to suppress anyevidence fromthe traffic stop, challenging both

the lawfulness of the stop and the pat-down search. At the suppression hearing,

Officer Bovy testified he received training in identifying speed eleven years earlier. 

He typically did not “do much in the way of speed violations,” and did not remember

if he had “ever” turned on his in-car radar unit. He said his estimate of 50-55 mph

was based on his general experience with traffic stops and his familiarity with the

area. He did not know the distance the car traveled from when it first appeared until

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it passed him. Gaffney presented evidence that his vehicle traveled about 473 feet in

nine seconds, an average speed of 35.8 miles per hour.

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The district court denied the motion. Gaffney entered a conditional guilty

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plea, preserving the right to appeal both issues.

II.

“In an appeal from a district court’s denial of a motion to suppress evidence,

this court reviews factual findings for clear error, and questions of constitutional

law de novo.” United States v. Gordon, 741 F.3d 872, 875 (8th Cir. 2013). “We

may affirm the denial of a motion to suppress on any grounds supported by the

record.” United States v. Allen, 705 F.3d 367, 369 (8th Cir. 2013).

A.

Gaffney argues Officer Bovy had neither reasonable suspicion nor probable

cause for a traffic stop. “[T]o justify [a traffic stop], officers need only ‘reasonable

suspicion.’” Heien v. North Carolina, 135 S. Ct. 530, 536 (2014). Reasonable

suspicion exists when an officer has a “particularized and objective basis for

suspecting the particular person stopped of breaking the law.” Id. (internal quotation

marks omitted). “[T]he ultimate touchstone of the Fourth Amendment is

‘reasonableness.’” Id. (some internal quotation marks omitted), quoting Riley v.

The video fromthe officer’s dash-camera shows Gaffney’s headlights coming

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into view directly in front of him and passing him nine seconds later. A defense

investigator estimated the location of Gaffney’s vehicle when it first appeared. The

distance between this location and Bovy’s location is 473 feet.

The Honorable Linda R. Reade, Chief Judge, United States District Court for

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the Northern District of Iowa. 

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California, 134 S. Ct. 2473, 2482 (2014). “The determination of whether . . .

reasonable suspicion existed is not to be made with the vision of hindsight, but

instead by looking to what the officer reasonably knew at the time.” United States

v. Hollins, 685 F.3d 703, 706 (8th Cir. 2012) (internal quotation marks omitted). 

“Even an officer’s incomplete initial observations may give reasonable suspicion for

a traffic stop.” United States v. Givens, 763 F.3d 987, 989 (8th Cir. 2014) (internal

quotation marks omitted). “Mistakes of law or fact, if objectively reasonable, may

still justify a valid stop.” Hollins, 685 F.3d at 706.

This court has not resolved whether an officer’s visual estimate of speed alone

can furnish either probable cause orreasonable suspicion to stop a vehicle. This court

has held that a “helicopter unit’s independent, continued observation of [a] speeding

[vehicle] is enough alone to justify [a] stop of the vehicle.” Gordon, 741 F.3d at 876. 

The Tenth Circuit has observed, “It’s long been the case that an officer’s visual

estimation can supply probable cause to support a traffic stop for speeding in

appropriate circumstances.” United States v. Ludwig, 641 F.3d 1243, 1247 (10th Cir.

2011). In that case, the district court found credible the trooper’s visual estimate,

noting his good view to gauge the approaching vehicle, the clear day, the trooper’s

15 years’ experience as a highway patrolman watching cars and estimating speeds,

and the lack of reasons to discredit the speed estimate. “In these circumstances, the

district court’s factual finding about the reliability of the trooper’s visual estimation

remains untouched, must be affirmed, itself sufficient to support the traffic stop.” Id.

at 1247-48.

The Fourth Circuit addressed an officer’s visual estimate that a defendant was

over the posted speed limit by only five miles per hour.

[T]he Fourth Amendment does not allow, and the case law does not

support, blanket approval for the proposition that an officer’s visual

speed estimate, in and of itself, will always suffice as a basis for

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probable cause to initiate a traffic stop. Instead, for the purposes of the

Fourth Amendment, the question remains one of reasonableness. 

Critically, and as further explained below, the reasonableness of an

officer’s visualspeed estimate depends, in the first instance, on whether

a vehicle’s speed is estimated to be in significant excess orslight excess

of the legal speed limit. If slight, then additional indicia of reliability

are necessary to support the reasonableness of the officer’s visual

estimate.

United States v. Sowards, 690 F.3d 583, 591 (4th Cir. 2012). That court found “at

a minimum, there must be sufficient indicia of reliability for a court to credit as

reasonable an officer’s visual estimate of speed.” Id. In another case, the Fourth

Circuit emphasized that “the probable cause inquiry is—as always—reasonableness,

and the analysis remains whether the ‘totality of circumstances’ established the

‘reasonableness of the officer’s visualspeed estimate.’” United States v. Mubdi, 691

F.3d 334, 339 (4th Cir. 2012) (finding that the totality of circumstances supports the

stop when two officers each independentlydetermined, by visual observation, that the

defendant was exceeding the speed by 8 to 10 mph) (quoting Sowards, 690 F.3d at

592-93), vacated on other grounds in, 133 S. Ct. 2851 (2013).

In this case, the district court found that Officer Bovy “only rarely issues

speeding citations,” was “unsure whether he has actually ever turned on his in-car

radar,” “his experience with traffic stops is unrelated to speeding violations,” and he

“was unable to even provide an estimated distance that Defendant’s vehicle traveled.”

United States v. Gaffney, 2014 WL 794568, at *4 (N. D. Iowa, February 27, 2014). 

Unlike Ludwig, the district court specifically said it did “not place a great deal of

confidence in Officer Bovy’s estimation of the speed of the vehicle.” Id. However,

relying on dash-camera video and the measurement by the defense investigator, the

district court found “the totality of the circumstances establishes the reasonableness

of Officer Bovy’s belief that Defendant was speeding as he approached the

intersection.” Id. at *5. The court noted: “Because this was an average speed,

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Defendant likely traveled faster than 35.8 miles per hour atsome point or points over

the course of the nine seconds.” Id.

Although the district court lacked confidence in the officer’s estimate, the issue

is not whether the evidence supports his belief that Gaffney was traveling at 50-55

mph. “[S]earches and seizures based on mistakes of fact can be reasonable.” Heien,

135 S. Ct. at 536. The issue is whether the totality of the circumstances at the time

of the stop supports the reasonableness of the officer’s belief that Gaffney was

speeding at all. See United States v. $45,000 in U.S. Currency, 749 F.3d 709, 715

(8th Cir. 2014) (“Any traffic violation, however minor, provides probable cause for

a traffic stop.”).

Officer Bovy was familiar with the area, thought Gaffney was speeding, and 

Gaffney “braked hard” immediately after Bovy u-turned to follow him. Based on the

totality of these facts—corroborated by Gaffney’s admission and the investigator’s

measurement—the district court correctly concluded that Officer Bovy’s belief that

Gaffney was speeding was objectively reasonable.

B.

Gaffney challenges the pat-down search arguing that Officer Bovy had no

reason to suspect he was armed and dangerous. “Officers may conduct a protective

pat-down search for weapons during a valid stop . . . when they have objectively

reasonable suspicion that a person with whom they are dealing might be armed and

presently dangerous and criminal activity might be afoot.” United States v. Preston,

685 F.3d 685, 689 (8th Cir. 2012) (internal quotation marks omitted). “In

determining whether reasonable suspicion exists, we consider the totality of the

circumstances in light of the officers’ experience and specialized training.” Id. “[A]

pat-down is permissible if a reasonably prudent man in the circumstances would be

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warranted in the belief that his safety or that of others was in danger.” Id. (internal

quotation marks omitted).

The stop occurred late at night in a high-crime area. United States v.

Roggeman, 279 F.3d 573, 578 (8th Cir. 2002) (“Trooper Moore was alone, he

stopped Roggeman late at night, and the scene of the stop was poorly lit. These facts

go to officer safety.”). Gaffney was abnormally nervous. See United States v.

Hanlon, 401 F.3d 926, 930 (8th Cir. 2005) (“Hanlon’s extreme nervousness and

failure to make eye contact with Halverson bolstered Halverson’s reasonable

suspicion that Hanlon was armed and dangerous.”). Officer Bovy was told that he

had a narcotics conviction and was still involved in the narcotics trade. “[I]t is

reasonable for an officer to believe a person may be armed and dangerous when the

person is suspected of being involved in a drug transaction.” United States v.

Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005). Officer Bovy had reasonable

suspicion that Gaffney could be armed and dangerous and criminal activitywas afoot. 

The district court did not err in upholding the pat-down search.

The judgment is affirmed.

* * * * * * *

BYE, Circuit Judge, dissenting.

I disagree an objectively reasonable officer would have had a sufficient basis

to stop Gaffney’s car for speeding. Consequently, I would reverse the district court’s

denial of Gaffney’s motion to suppress, vacate his conviction, and remand for further

proceedings. I therefore respectfully dissent from Section II.A. of the majority’s

opinion and would not reach Section II.B.

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“[T]he underlying command of the Fourth Amendment is always thatsearches

and seizures must be reasonable . . . .” Wilson v. Arkansas, 514 U.S. 927, 931 (1995)

(internal quotation marks omitted). As applicable to Gaffney’s case, a traffic stop is

reasonable “when an officer is aware of particularized, objective facts which, taken

together with rational inferencesfromthose facts, reasonably warrantsuspicion” that

a traffic violation has occurred. United States v. Gordon, 741 F.3d 872, 876 (8th Cir.

2013) (internal quotation marks omitted).

The objective facts of Gaffney’s case are contained within the video created by

the dashboard camera located in Officer Bovy’s patrol car. From this video, the

investigator determined Gaffney’s vehicle traveled at an average of 35.8 miles per

hour, in a 35 mile per hour speed zone, from the time Officer Bovy could first see

Gaffney’s vehicle on Franklin Street until the point where Gaffney’s vehicle was

parallel with Officer Bovy’s patrol car. Over the course of this period, the vehicle

appears to travel at a consistent speed, and Gaffney does not brake until after his

vehicle has already passed Officer Bovy’s patrol car. Further, when Gaffney brakes,

he is doing so to slow his vehicle to make a right turn and almost immediately stops. 

All of these events occurred during nighttime hours.

From these facts, the majority somehow concludes a reasonable officer would

have a sufficient basis to stop Gaffney for speeding. I disagree. To conclude Officer

Bovy or any other officer could visually discern a difference of a mere .8 miles per

hour above the posted speed limit is confounding. See United States v. Sowards, 690

F.3d 583, 594 (2d Cir. 2012) (“[T]he accuracy of human estimation of speed cannot

easily, readily, and accurately determine between such small variations [5 m.p.h.] in

speed.” (internal quotation marks omitted)). Moreover, although this figure is an

average, and the district court concluded Gaffney “likely traveled faster than 35.8

miles per hour at some point or points over the course of the nine seconds,” the

objective facts do not support this conclusion. The video shows Gaffney’s vehicle

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traveling at a consistent speed, and he did not begin to slow his vehicle until he

passed the end point of the investigator’s measurements.

Further, the majority attempts to make Officer Bovy’s familiarity with the area

and that he thought Gaffney was speeding into objective facts. While courts have

considered an officer’s visual estimation of speed as an objective fact to consider in

the reasonable suspicion analysis, those courts have found the officers had the

necessary skills, training, and experience to make such an estimation. See United

States v. Mubdi, 691 F.3d 334, 341 (4th Cir. 2012), vacated on other grounds, 133 S.

Ct. 2851 (2013)(finding officers’ visual estimates were sufficient to support probable

cause because the two officers gave virtually identical estimates and were required,

as part of a radar certification class, to visually estimate the speed of vehicles within

a narrow margin of error); United States v. Ludwig, 641 F.3d 1243, 1247 (10th Cir.

2011) (crediting an officer’s visual estimation ofspeed to determine whether probable

cause to stop existed partially because the officer possessed 15 years’ experience as

a highway patrolman watching cars and estimating speeds); State v. Dunham, 67 A.3d

275, 279 (Vt. 2013) (considering whether officers “receive[d] proper roadside and

academy training, [have] spen[t] considerable time on road patrol, gain[ed]

experience estimating speed and comparing estimates against radar, and historically

exhibit[ed] a margin of error of only a few miles per hour” as factors to determine

whether the officers are qualified to visually estimate speed).

Contrary to cases which have utilized officers’ estimations as objective facts,

Officer Bovy lacked the credentials to visually estimate speed. He received visual

estimation speed training over a decade prior to Gaffney’s stop, he did not provide

a margin of error as to how accurate any visual estimations of speed he previously

made had been, he had issued very few speeding citations, and he believed he had

never turned on the radar in his patrol car. Further, he was unable to provide an

estimate of the distance Gaffney’s car covered asit approached Officer Bovy’s patrol

car although he explained monitoring the distance a vehicle travels over a surface

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area is part of the technique he utilizes for visually estimating speed. Because of

Officer Bovy’s inexperience in visually estimating speed, he grossly estimated that

Gaffney’s speed was 50 to 55 miles per hour, well above Gaffney’s actual average

speed. Officer Bovy’s estimation is therefore subjective and does not have the

support to be considered as a particularized, objective fact when determining whether

reasonable suspicion existed. See Sowards, 690 F.3d at 588-90, 594 (finding that

because an officer lacked specialized training in the estimation of vehicle speeds,

lacked a technique or method to “guess” visual speeds, and had difficulty with

measurements, his visual estimation of speed “was in fact a guess that was merely

conclusory, without an appropriate factual foundation, and simply lacking in the

necessary indicia of reliability to be an objectively reasonable basis for probable

cause to initiate a traffic stop”).

The only other objective facts cited by the majority to support its conclusion

are that Gaffney admitted to driving “in the 40s” and he “braked hard” after Officer

Bovy made a u-turn. First, I do not believe we can consider Gaffney’s alleged

admission to speeding because Officer Bovy testified Gaffney made this statement

after Officer Bovy had already stopped the vehicle. See United States v. $45,000.00

in U.S. Currency, 749 F.3d 709, 715 (8th Cir. 2014) (“[I]f it was not objectively

reasonable for the officer to believe that a violation was occurring at the time that the

officer decided to effect the stop, then the officer lacked probable cause to seize the

motorist. . . . Accordingly, the critical inquiry . . . is what the stopping officer

observed before pulling over a motorist.”); see also United States v. Sanders, 196

F.3d 910, 913 (8th Cir. 1999) (“The determination of whether probable cause existed

is not to be made with the vision of hindsight, but instead by looking to what the

officer reasonably knew at the time.”).

Second, the video taken by the dashboard camera does not support Officer

Bovy’s assertion that Gaffney “braked hard” after he passed Officer Bovy’s patrol

car. Instead, the video depicts Gaffney braking at a reasonable pace to make a right

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turn and immediately stop. Nonetheless, even if we were to consider braking as an

objective fact, courts have not found braking, standing alone, as a sufficient basis to

conclude an individual was speeding; rather, other indicia of speeding were present

which supported the constitutionality ofthe traffic stop. See United States v. Colden,

No. 11-M-989-SKG, 2011 WL 5039777, at *1 (D. Md. Oct. 21, 2011) (finding the

officer’s uncontested visual estimation of defendant’s speed, combined with the

officer’s observations that the vehicle shook and defendant tapped his brakes,

amounted to reasonable articulable suspicion that defendant was speeding); State v.

Steele, No. 101,250, 2009 WL 3428624, at *3 (Kan. Ct. App. Oct. 23, 2009) (finding

substantial competent evidence supporting the trial court’s finding of reasonable

suspicion of speeding because the officer observed defendant traveling at an

excessive rate ofspeed, the officer heard a loud engine roar, and the officer observed

defendantslam on his brakes). Gaffney’s case lacks any other objectively reasonable

indication that he was speeding, and as a result, braking alone cannot provide

reasonable suspicion for stopping his vehicle.

For the reasons provided, I would reverse the denial of Gaffney’s motion to

suppress, vacate his conviction, and remand for further proceedings.

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