1

The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1334

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Thomas Neal Wright, *

* 

Defendant - Appellant. *

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Submitted: October 16, 2007

 Filed: January 7, 2008

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Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.

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MURPHY, Circuit Judge.

Appellant Thomas Neal Wright appeals the district court's1

 denial of his motion

to suppress 24.7 kilograms of cocaine and incriminating statements he made in the

course of a traffic stop. We affirm.

On June 2, 2005 Wright was driving a pickup eastbound on Interstate 80 in

Hamilton County, Nebraska when he noticed signs indicating that a state patrol
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checkpoint with a drug dog was located past the next freeway exit. The signs were

placed approximately 600 feet west of the Phillips interchange which has an

eastbound exit ramp. The exit ramp accesses County Road B which turns into a gravel

road approximately 200 yards south of the interstate just past a KOA campground.

Other than at the campground there are no services or signs for services at the Phillips

interchange.

The state patrol had set up the checkpoint as a ruse designed to induce drug

traffickers to avoid it by leaving the highway. Troopers Jason Probasco and Bradley

Hand had arranged the checkpoint and had placed an unoccupied patrol car with

activated overhead lights at the underpass of the Phillips interchange. The troopers

waited in another patrol vehicle off the highway, near an abandoned gas station south

of the interstate and on the east side of County Road B. The spot at which they were

parked was approximately seventy five yards from the stop sign at the top of the

eastbound exit ramp. From their location the troopers watched for vehicles with out

of state license plates leaving the freeway and then made contact with those motorists

who committed traffic violations.

Wright left the freeway at the Phillips exit, and the troopers observed that he

failed to make a complete stop at the sign at the top of the exit ramp before turning

south onto County Road B and continuing past the KOA campground. Hand, who

was using binoculars, noticed that Wright's pickup had Nevada license plates, and the

officers found it unusual that an out of state vehicle would exit at that location and not

enter the campground. They stopped Wright's vehicle, and Probasco initiated

conversation with him. Hand followed to record the conversation because he had a

microphone set to the same frequency as their patrol camera. The ensuing

conversation was inaudible on the recording, however, because of background noise

from Wright's diesel engine and radio and the distance at which Hand was standing.
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Probasco noticed that Wright's hands were trembling "extremely bad [sic]"

while he searched for his vehicle registration and that his voice was quivering.

Probasco asked why Wright had exited the interstate, and he responded that he was

tired and looking for a place to rest. When asked why he had not pulled into the KOA

campground, Wright said that he did not have camping gear and did not see any

buildings. Wright was not able to find the vehicle registration.

At this point Probasco asked Wright to go to the patrol vehicle with him so that

he could issue a warning ticket for not stopping at the stop sign. While walking back

to the patrol vehicle, the troopers observed equipment in the bed of the pickup.

Wright told them he was hauling stage equipment from Las Vegas to the Twin Cities.

While Wright sat in the front of the patrol car, Probasco checked his driver's license,

criminal history, and vehicle registration. He asked Wright again about the equipment

he was transporting, and Wright replied that he was driving to Minneapolis to set up

a stage for a show. When asked again why he had taken this exit, Wright stated that

he had hoped to make it to Omaha but decided that he needed to rest. 

Because Probasco had become suspicious that Wright was carrying drugs, he

told Hand to call for a drug dog. While Probasco wrote the warning ticket, he asked

Wright if there was any contraband in his vehicle. Wright denied having any drugs

or drug paraphernalia. When the trooper commented that law enforcement often uses

ruse checkpoints to detect criminal activities, Wright claimed that he had not seen the

drug checkpoint signs on the interstate. Since the microphone was not set to pick up

conversations in the front seat of the patrol car, their conversation was not audible on

the recording.

Probasco completed the warning ticket and returned Wright's driver's license.

As Wright was walking back to his pickup, Probasco asked him if he could ask a few

questions. Wright agreed. Probasco again asked if there were drugs in the pickup,

and Wright again denied having any. Probasco then requested permission to search
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his vehicle, and Wright consented. As soon as it was clear that they intended to search

the pickup on the spot, he withdrew his consent. Probasco then told him he would

have to stay at the scene until the drug dog arrived.

While they waited for the drug dog, Hand commented that motorists who exit

the freeway after a drug checkpoint sign are usually doing something illegal. He

commented that if Wright had a marijuana pipe or small amount of marijuana in the

pickup, it would be an infraction under Nebraska law similar to a speeding ticket.

Wright looked down, and Hand repeated that an infraction was basically like a

speeding ticket. He said that if Wright had anything, it would be better to tell the

officers. Wright responded that he had just done a couple lines of cocaine with a

rolled up dollar bill that was between his seat and the console. Hand found a dollar

bill with white residue in the pickup cab at the spot Wright told him to look. Wright

then informed the troopers that there was a white bindle in the cooler, and Hand

retrieved it.

Probasco put Wright in the patrol car and began to write a citation for

possession of drug paraphernalia. Hand had meanwhile contacted the dog handler to

tell him he was not needed because Wright had admitted to possession of drug

paraphernalia. The canine officer arrived anyway and deployed the drug dog who

alerted on the rear passenger side of Wright's pickup. Hand and George Scott, another

trooper who had come to the scene, searched the vehicle and found a brick of cocaine.

Wright was placed under arrest at this point but not advised of his Miranda rights.

While he and Probasco were waiting in the patrol car, Hand and Scott found a suitcase

in the rear seat of his pickup. Wright then told Probasco, "They found the rest of it.

That thing's full of cocaine."

On June 22, 2005 a federal grand jury returned a two count indictment charging

Wright with possession with intent to distribute 5 kilograms or more of a cocaine

substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1), and criminal forfeiture
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The Honorable David L. Piester, United States Magistrate Judge for the District

of Nebraska.

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pursuant to 21 U.S.C. § 853. Wright moved to suppress the evidence seized after his

stop as well as his incriminating statements. An evidentiary hearing was held on

October 28, 2005 and continued on November 1, 2005. The court received additional

evidence on December 27, 2005. 

The magistrate judge2

 filed a report and recommendation recommending that

Wright's suppression motion be denied. Wright filed objections, arguing in part that

the magistrate judge had not addressed a videotape which showed that the troopers

could not have seen his vehicle at the stop sign. This video was made by Scott's patrol

vehicle as he drove up the exit ramp at the Phillips interchange, and Wright argued

that it showed that trees blocked the view of Probasco and Hand so they could not

have seen a vehicle fail to stop at the sign. The district court adopted the magistrate's

report and recommendation after making an additional factual finding that the

videotape did not support Wright's argument about what the video showed. Wright

then pled guilty to both counts of the indictment and was sentenced to 121 months in

prison followed by a five year term of supervised release. Wright now appeals the

denial of his motion to suppress. 

The district court's order denying the motion to suppress is reviewed under two

standards: factual findings are examined for clear error and legal conclusions de

novo. United States v. Stevens, 439 F.3d 983, 987 (8th Cir. 2006). Wright challenges

the district court's factual determination that he committed a traffic violation, arguing

that the evidence presented at the suppression hearing undermined the troopers'

credibility and consequently there was insufficient evidence that he did not stop. He

contends that because he actually stopped at the stop sign the troopers lacked probable

cause, and his detention therefore violated the Fourth Amendment.
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To support his argument that his constitutional rights were violated Wright cites

City of Indianapolis v. Edmond, 531 U.S. 32 (2000), and United States v. Yousif, 308

F.3d 820 (8th Cir. 2002). Both decisions examined the constitutionality of drug

checkpoints, and in each case the checkpoint was found to have violated the Fourth

Amendment.

Like the instant case, the checkpoints in Edmond involved signs that were

intended to intercept motorists transporting illegal drugs, see 531 U.S. at 34–36, but

other aspects were different. At each checkpoint in Edmond the police stopped a

predetermined number of vehicles. Pursuant to a written set of procedures, an officer

would approach a car and ask for license and registration, look for signs of

impairment, and examine the interior of the car. A drug dog conducted a canine sniff

of every stopped car. If consent to search was not obtained and particularized

suspicion did not develop, the officer would let the motorist leave. Id. at 35. The

primary purpose of the checkpoints was to "uncover evidence of ordinary criminal

wrongdoing." Id. at 42. The Supreme Court held that the checkpoints violated the

Fourth Amendment stating:

The primary purpose of the Indianapolis narcotics checkpoints is in the

end to advance the "general interest in crime control." We decline to

suspend the usual requirement of individualized suspicion where the

police seek to employ a checkpoint primarily for the ordinary enterprise

of investigating crimes. We cannot sanction stops justified only by the

generalized and ever-present possibility that interrogation and inspection

may reveal that any given motorist has committed some crime.

Id. at 44 (internal citation omitted).

Signs indicating the presence of a drug checkpoint were also used as a ruse in

Yousif to induce motorists to exit the freeway. 308 F.3d at 823. All motorists who
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left the interstate after the posted signs were stopped at a drug interdiction checkpoint

located at the top of the exit ramp. The officers asked for a driver's license, vehicle

registration, and proof of insurance. They also recorded the license plate number and

asked drivers why they had exited the interstate. If illegal activity was perceived, the

officers questioned the driver more extensively. If the officers developed a reason to

believe that the vehicle contained contraband, they asked for consent to search. If

consent were denied but the officer still had a reasonable suspicion that the occupants

were involved in unlawful activity, a drug dog was deployed for a canine sniff. If the

dog did not alert and the officer had no other reason to hold the vehicle, the motorist

would be allowed to leave. Id. at 823–24. We held that this program violated the

Fourth Amendment "insofar as its primary purpose was the interdiction of drug

trafficking . . . and the officers . . . were under instructions to stop every vehicle" that

took the exit. Id. at 827. We noted that "while some drivers may have wanted to

avoid being caught for drug trafficking, many more took the exit for wholly innocent

reasons . . . . General profiles that fit large numbers of innocent people do not

establish reasonable suspicion." Id. at 827–28. 

In two of our subsequent cases which had similar facts as those before us now,

no Fourth Amendment violation was found. In both cases signs on the freeway

indicated a checkpoint ahead even though none actually existed, and not every exiting

motorist was stopped. See United States v. Williams, 359 F.3d 1019 (8th Cir. 2004);

United States v. Martinez, 358 F.3d 1005 (8th Cir. 2004). In both of those cases a

ruse drug checkpoint was set up by placing signs warning of a drug checkpoint ahead

to induce motorists to exit the freeway before reaching the checkpoint. Williams, 359

F.3d at 1020; Martinez, 358 F.3d at 1006–07. Officers would then stop only those

exiting vehicles which committed a traffic violation. In holding that this practice did

not violate the Fourth Amendment we distinguished Edmond and Yousif:

Edmond and Yousif involved the use of actual checkpoints at which

motorists were stopped regardless of whether they had committed a
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traffic violation. Here, there was no checkpoint on the . . . exit, and

motorists who took the exit were not stopped unless they were observed

committing a traffic violation. Given this distinction, Edmond and

Yousif are not controlling. 

Martinez, 358 F.3d at 1008–09; see also Williams, 359 F.3d at 1021. 

Wright's case is like Williams and Martinez and different from Edmond and

Yousif. Here, no checkpoint actually existed, unlike in Edmond and Yousif, and the

troopers did not stop all vehicles or a predetermined number of them. Under the

checkpoint plan in this case, like in Williams and Martinez, troopers were only to stop

vehicles for which they had individualized suspicion of a traffic violation. In these

circumstances use of a ruse checkpoint did not violate Wright's constitutional rights.

Wright argues nevertheless that the traffic stop of his pickup was unreasonable.

Because a traffic stop is a seizure within the meaning of the Fourth Amendment, see

Delaware v. Prouse, 440 U.S. 648, 653 (1979), it must be reasonable to pass

constitutional muster, see Whren v. United States, 517 U.S. 806, 810 (1996). "[T]he

decision to stop an automobile is reasonable where the police have probable cause to

believe that a traffic violation has occurred." Whren, 517 U.S. at 810. "Any 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). An otherwise

constitutional traffic stop is not invalidated by the fact that it was "mere pretext for a

narcotics search." United States v. Williams, 429 F.3d 767, 771 (8th Cir. 2005), citing

Whren, 517 U.S. at 812–13. It is a violation of Nebraska law to fail to stop at a stop

sign. Neb. Rev. Stat. § 60-6,148; see Neb. Rev. Stat. § 60-667 (definition of a stop).

Wright argues that there was insufficient evidence to support the district court's

finding of a traffic violation and that the troopers lacked probable cause to stop him.

He contends that he produced evidence to negate any evidence of a violation.
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Specifically he argues that his witness Craig Sutton undermined the credibility of the

troopers, as did the video taken from Scott's patrol car and the failure to tape the traffic

violation or to record the subsequent conversations. The government argues that there

is sufficient evidence to support the district court's finding of a traffic violation. There

were two versions of the facts, and the district court chose to believe the troopers'

testimony; the court's credibility determinations require a high degree of deference.

At the evidentiary hearing the magistrate judge heard testimony from Hand,

Probasco, and Craig Sutton, a mechanic employed by Wright. The troopers both

testified that Wright signaled a right hand turn but failed to come to a complete stop

at the sign at the top of the exit ramp. Wright contends that the troopers' testimony

is not credible because the turn signal on his pickup did not work that evening. He

called Sutton to testify that the truck's right turn signal had been broken before June

2, 2005 and was still not working at the time of the evidentiary hearing. The

magistrate judge heard all the evidence and expressly stated that he did "not find the

testimony of Mr. Sutton credible"; he also noted that Sutton was employed by Wright

and stood to lose his job should Wright be convicted. Hand's admission that the back

right tail light of Wright's vehicle was damaged at the time of the stop did not address

the front right turn signal. As to Wright's contention that the troopers could not see

the stop sign from their vantage point, the district judge found that the video from

Scott's patrol car did not corroborate Wright's argument.

 

Wright also argues that the troopers' failure to videotape the traffic violation

and properly to record their conversations with Wright undermines the credibility of

their testimony. In accordance with their training, the troopers activated the videotape

recording when they initiated the traffic stop after witnessing a violation. The

government's evidence indicated that the troopers did make audio recordings of their

conversation with Wright; the fact that the recordings are of poor quality did not

require the district court to draw an adverse credibility finding. 
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The lower court made credibility judgments based on the testimony and

presentation of the witnesses, and it believed the troopers' testimony which supported

the finding that Wright did not stop at the stop sign. We give great deference to a

lower court's credibility determinations because the "assessment of a witness's

credibility is the province of the trial court." United States v. Heath, 58 F.3d 1271,

1275 (8th Cir. 1995). We conclude that sufficient evidence existed to support the

finding that Wright did not come to a complete stop at the sign. The troopers

therefore had probable cause for the traffic stop.

For the foregoing reasons we affirm the judgment of the district court.

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