United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

 No. 10-1406

___________

United States of America, * 

*

Appellee, *

*

v. * 

*

Ronald Prokupek, *

* 

Appellant. *

*

___________

Appeals from the United States

 No. 10-1512 District Court for the

___________ District of Nebraska.

*

United States of America, * 

*

Appellee, *

*

v. * 

*

Christine McGlothlen, *

* 

Appellant. *

___________

Submitted: November 17, 2010

Filed: January 24, 2011

___________
Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.

___________

GRUENDER, Circuit Judge.

On February 29, 2008, troopers of the Nebraska State Patrol set up a ruse drug

checkpoint near the Utica exit off of Interstate 80 in Seward County, Nebraska. They

posted a sign indicating that there would be a drug checkpoint ahead and then

positioned troopers at the next interstate exit. Trooper James Estwick stopped a

vehicle occupied by Ronald Prokupek and Christine McGlothlen at the exit as it

turned from the exit ramp on to a county road. According to the recording made by

the camera on his cruiser’s dashboard immediately after the stop, Trooper Estwick

told Prokupek that “the reason you got pulled over is because when you exited the

interstate you didn’t signal—you didn’t signal your exit [inaudible]. You signaled

your turn, but you didn’t signal—exit—signal when you were getting on the exit.” 

Trooper Estwick detained Prokupek and McGlothlen, and a few minutes later

Sergeant Lonnie Connelly arrived with a drug dog. Sergeant Connelly walked the dog

around Prokupek and McGlothlen’s car several times and then told Trooper Estwick

that the dog had alerted to an open window on the driver’s side door. The officers

then searched the car and found 151 grams of methamphetamine in a compartment in

the center armrest. 

Prokupek and McGlothlen were charged with possession with intent to

distribute methamphetamine, a violation of 21 U.S.C. § 841(a)(1), (b)(1). Both

defendants moved to suppress the evidence obtained during the search, arguing, inter

alia, that the initial stop was not supported by probable cause and that the drug dog’s

actions did not provide probable cause for the search of the car because the dog was

not properly trained and did not provide a sufficient indication that drugs were

present. 

-2-
At a suppression hearing before a magistrate judge, Trooper Estwick testified

that the probable cause for the traffic stop was Prokupek’s failure to signal the

vehicle’s turn from the interstate exit ramp on to the county road. Counsel for

Prokupek pressed Trooper Estwick on the inconsistency between his testimony at the

suppression hearing and his contemporaneous statement, captured by his cruiser’s

dashboard camera, that Prokupek had signaled the vehicle’s turn on to the county road

but that he had stopped the vehicle based on Prokupek’s failure to signal the vehicle’s

exit from the interstate. Trooper Estwick initially demurred, repeating several times

that he stopped Prokupek simply “for failing to signal” and insisting that “I don’t

understand what your question is. I really don’t.” Finally, when Prokupek’s counsel

again asked him if he stopped Prokupek because “[h]e failed to signal his northbound

turn onto the [county] roadway,” Trooper Estwick responded, “Yes. He failed to

signal,” and further testified, “I couldn’t see [Prokupek] when he left the Interstate.

. . . I didn’t see him leave the Interstate, sir.”

The magistrate judge found Trooper Estwick’s testimony that Prokupek failed

to signal the vehicle’s turn from the exit ramp to the county road credible and

recommended that the motions to suppress be denied. Prokupek and McGlothlen

objected to the magistrate judge’s report and recommendation, arguing that Trooper

Estwick’s testimony was not credible because it was contradicted by his

contemporaneous statement. After de novo review, the district court adopted the

report and recommendation but did not adopt the finding that the failure to signal

occurred when Prokupek turned the vehicle on to the county road. The district court

instead found that “Prokupek failed to [signal] at one of the two described places.” 

After rejecting the remaining suppression arguments, the district court denied

Prokupek and McGlothlen’s motions to suppress. After their motions to suppress

were denied, Prokupek and McGlothlen entered conditional guilty pleas. See Fed. R.

Crim. P. 11(a)(2). McGlothlen was sentenced to 18 months’ imprisonment, and

Prokupek was sentenced to 60 months’ imprisonment. Both Prokupek and

McGlothlen appealed the denial of their motions to suppress, arguing that both the

-3-
stop and the search of the vehicle were not supported by probable cause. Prokupek

also appealed his sentence.

At oral argument before this Court, the Government conceded that probable

cause for the stop could not be based on any failure to signal the vehicle’s exit from

the interstate on to the exit ramp because Trooper Estwick was not in a position to

observe Prokupek and McGlothlen’s vehicle at that time. In light of this concession, 

we remanded to the district court to clarify its finding that Prokupek failed to signal

“at one of the two described places” but retained jurisdiction over the appeals. United

States v. Prokupek, No. 10-1406 (8th Cir. Dec. 10, 2010). We noted that the district

court had discretion on remand to engage in further proceedings and reconsider its

ruling. The Government filed a motion to reopen the suppression hearing, which the

district court denied. Based solely on the record of the earlier suppression hearing, the

district court entered a supplemental order finding “Trooper Estwick’s testimony at

the suppression hearing [that Prokupek failed to signal before his turn on to the county

road] to be credible.” Although the court “acknowledge[d] the apparent discrepancy

between Trooper Estwick’s testimony and his statement on the video tape,” it

concluded that “his statement at the time of the traffic stop was an unintentional

misstatement.”

We review the district court’s ultimate determination that probable cause

existed de novo, but we review its factual findings for clear error. United States v.

Donnelly, 475 F.3d 946, 951 (8th Cir. 2007). Although a factual finding based on a

determination that a witness is credible “can virtually never be clear error,” when

“[d]ocuments or objective evidence . . . contradict the witness’ story; or the story itself

[is] so internally inconsistent or implausible on its face that a reasonable factfinder

would not credit it . . . the court of appeals may well find clear error even in a finding

purportedly based on a credibility determination.” Anderson v. City of Bessemer City,

N.C., 470 U.S. 564, 575 (1985).

-4-
The Fourth Amendment prohibits “unreasonable searches and seizures,” and

“stopping an automobile and detaining its occupants constitute a ‘seizure’ within the

meaning of [the Fourth Amendment],” Delaware v. Prouse, 440 U.S. 648, 653 (1979).

 We previously have held that reasonable suspicion for a traffic stop cannot be based

solely on the fact that a driver exits an interstate after seeing a sign indicating that a

drug checkpoint lies ahead. United States v. Carpenter, 462 F.3d 981, 986-87 (8th

Cir. 2006). However, since “[a]ny traffic violation, however minor, provides

probable cause for a traffic stop,” United States v. Bloomfield, 40 F.3d 910, 915 (8th

Cir. 1994) (en banc), a traffic stop pursuant to a ruse checkpoint does not violate the

Fourth Amendment if the driver commits a traffic violation when exiting the

interstate, United States v. Wright, 512 F.3d 466, 471 (8th Cir. 2008). Relying on

Trooper Estwick’s testimony at the suppression hearing, the district court found that

a traffic violation occurred when Prokupek failed to signal his turn on to the county

road.

Prokupek and McGlothlen argue that this finding by the district court is clearly

erroneous because Trooper Estwick’s testimony at the suppression hearing that

Prokupek failed to signal the vehicle’s turn on to the county road is clearly

contradicted by his contemporaneous statement. We agree that the two statements are

contradictory. In the recording made by the dashboard camera, Trooper Estwick can

be heard saying to Prokupek that “the reason you got pulled over is because when you

exited the interstate you didn’t signal—you didn’t signal your exit.” Trooper Estwick

then went on to say to Prokupek that “you signaled your turn,” which we are

convinced can refer only to the vehicle’s turn from the exit ramp on to the county

road. This plainly contradicts Trooper Estwick’s suppression-hearing testimony that

Prokupek failed to signal his turn on to the county road. 

In its supplemental order, the district court attempted to dismiss the

contradiction by finding that Trooper Estwick’s contemporaneous statement was “an

unintentional misstatement.” However, we can find no evidence in the record that

supports this finding, aside from the bare fact that Trooper Estwick contradicted the

-5-
statement at the suppression hearing. Although defense counsel pressed Trooper

Estwick on the inconsistency during cross-examination, Trooper Estwick offered no

explanation for the inconsistency, nor did he testify that his contemporaneous

statement was a misstatement. In the absence of any evidence in the record to support

the district court’s conclusion that Trooper Estwick misspoke at the time of the arrest,

we conclude that this finding is clearly erroneous. See United States v. Alberts, 721

F.2d 636, 640 (8th Cir. 1983) (“[T]he [district] court’s finding . . . was not supported

by substantial evidence and was, thus, clearly erroneous.”).

The district court’s factual finding that “Prokupek failed to signal his turn

before turning from the exit ramp on to the county road” is supported only by the

court’s determination that Trooper Estwick’s testimony at the suppression hearing to

that effect was credible. Because Trooper Estwick’s testimony at the hearing is so

clearly and affirmatively contradicted by his own statement at the time of the events,

in the absence of any explanation for this contradiction that is supported by the record,

we conclude that Trooper Estwick’s after-the-fact testimony at the suppression

hearing is “implausible on its face,” Anderson, 470 U.S. at 575, and we are left with

the “firm and definite conviction that a mistake has been made,” United States v.

Pickar, 616 F.3d 821, 827 (8th Cir. 2010) (quoting United States v. Hines, 387 F.3d

690, 694 (8th Cir. 2004)). We therefore hold that the district court’s finding that

Prokupek failed to signal the turn on to the county road is clearly erroneous. Cf.

United States v. Streater, 70 F.3d 1314, 1321 (D.C. Cir. 1995) (“We conclude that the

district court clearly erred in crediting [the witness’s] testimony . . . when [the

witness’s] documented contemporaneous statements show the contrary.”).

The Government proffers no alternative justification for the traffic stop. 

Therefore, the stop violated the Fourth Amendment, see Prouse, 440 U.S. at 653, and

the drugs and drug paraphernalia that eventually were seized are tainted fruit of this

violation and must be suppressed, see Wong Sun v. United States, 371 U.S. 471, 488

(1963). Accordingly, we reverse the district court’s denial of the motions to suppress,

-6-
vacate Prokupek and McGlothlen’s convictions, and remand to the district court for

further proceedings not inconsistent with this opinion.1

______________________________

1

 Since we reverse on the basis that the initial traffic stop was unsupported by

probable cause, we need not reach Prokupek and McGlothlen’s other challenges to the

search and Prokupek’s challenge to his sentence.

-7-