In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3830

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN A. PETERS, III,

Defendant-Appellant.

Appeal from the United States District Court for the 

Southern District of Indiana, Indianapolis Division.

No. 1:11-CR-00085-JMS-DML-1 — Jane E. Magnus-Stinson, Judge.

ARGUED APRIL 11, 2013 — DECIDED FEBRUARY 27, 2014

Before EASTERBROOK,MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. John A. Peters, III, pled guilty to one

count of conspiracy to possess with intent to distribute heroin,

in violation of 21 U.S.C. §§ 841(a)(1) and 846. He reserved his

right to appeal the district court’s denial of his motion to

suppress evidence discovered during the search of a car in

which he was a passenger. We affirm.
2 No. 12-3830

I.

On April 5, 2011, Peters was a passenger in a maroon

Toyota Scion on Interstate 70 in Indiana. The Scion was

traveling behind a white GMC Denali and both cars displayed

Ohio license plates. For reasons unrelated to this appeal, the

cars aroused the suspicion of Officer Chris Borgman, a Greenfield police officer assigned to a multi-jurisdictional task force

that patrolled Interstate 70 in Hancock and Marion Counties in

Indiana. Officer Borgman decided to follow the Denali and he

enlisted Deputy Nick Ernstes of the Hancock County Sheriff’s

Department to watch the Scion. Eventually, Officer Borgman

decided to pull over the Denali, which was found to contain

heroin and other evidence of drug trafficking. A passenger in

the Denali, Aaron Holmes, later filed a motion to suppress the

evidence found in that car. The district court discredited

Officer Borgman’s version of the events of that day as “too

improbable” and “not established by a preponderance of the

evidence,” and granted Holmes’ motion to suppress. We

therefore do not rely on Officer Borgman’s testimony in

assessing Peters’ claim and turn to Deputy Ernstes’ account of

the events.

After being alerted to the cars by Officer Borgman, Deputy

Ernstes approached the Scion and noticed that it was approximately fifty to seventy-five feet behind the Denali. The Scion

was traveling at approximately sixty to sixty-four miles per

hour. The combination of the high speed and short distance

allowed for less than two seconds’ braking time between the

vehicles, and Deputy Ernstes believed that the driver of the

Scion, Cordell Adams, was violating an Indiana statute by
No. 12-3830 3

following too closely. See Ind. Code § 9-21-8-14. Deputy 1

Ernstes decided to pull over the Scion. When the deputy

activated his emergency lights, Adams immediately pulled

over. 

The deputy told Adams that he stopped the car because it

was following too closely and Adams apologized. Adams

denied that he was traveling with another vehicle, told the

deputy that he had left his license at home, and said that he

was driving only because his passenger, Peters, had become

too tired. Deputy Ernstes then approached the passenger side

of the vehicle to request identification and vehicle registration.

When Peters lowered the window, Deputy Ernstes smelled

burnt marijuana and saw small green particles that the deputy

believed to be marijuana on Peters’ clothing. Peters claimed

that the particles came from a cigar, but a closer look confirmed the deputy’s belief that the particles were marijuana.

Contrary to Adams’ claim that the Scion was not associated

with any other vehicle, Peters told the deputy that they were

traveling with the white Denali. Based on the marijuana smell,

Deputy Ernstes decided to search the Scion. In response to

questions, Peters told Deputy Ernstes that he had previously

been arrested for carrying a concealed weapon. For safety

reasons, the deputy decided to handcuff Peters and pat him

down. The deputy recovered a large amount of cash from

Peters’ pocket, totaling more than $2500. He then placed Peters

That statute provides: “A person who drives a motor vehicle may not 1

follow another vehicle more closely than is reasonable and prudent, having

due regard for the speed of both vehicles, the time interval between

vehicles, and the condition of the highway.”
4 No. 12-3830

in a patrol car and searched the Scion. He found a marijuana

stem in the front passenger area, and again encountered a

marijuana odor, this time in a sunglass storage compartment.

The storage compartment cover was cracked and had screws

that appeared not to be original factory equipment. The deputy

also found a cordless drill in the car. The drill contained a

sticky substance which was later found to match a substance

found on the screws of a panel concealing a kilogram of heroin

in the Denali. 

Peters was then charged, along with Aaron Holmes, a

passengerin the Denali, with conspiracy to possess with intent

to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and

846; and possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). Peters moved to suppress the

evidence seized in the stop of the Scion. The district court held 2

a hearing to resolve disputes of fact regarding the traffic stop.

The court found that Deputy Ernstes had observed the Scion

traveling with less than two seconds of braking distance

behind the Denali. Indiana law provides that a driver “may not

follow another vehicle more closely than is reasonable and

prudent.” Ind. Code § 9-21-8-14. Citing our opinion in United

States v. Muriel, 418 F.3d 720, 724 (7th Cir. 2005), the court

concluded that probable cause existed to believe that a driver

followed another too closely under Indiana law when fewer

He also joined Holmes’ motion to suppress the evidence seized in the stop 2

of the Denali. The district court concluded that Peters lacked the ability to

challenge the seizure of evidence in the other car as a “mere passenger in

a convoy,” and Peters does not challenge that conclusion on appeal. We

therefore will not address the issue of Peters’ ability to challenge the stop

of the Denali or the seizure of evidence from the Denali.
No. 12-3830 5

than two seconds’ braking time separated the vehicles. The

court also determined that the subsequent warrantless search

of the Scion was justified by the smell of burnt marijuana and

by the appearance of marijuana particles in the car. The court

therefore denied Peters’ motion to suppress. Peters appeals.

II.

On appeal, Peters contends that the district court clearly

erred when it concluded that the stop of the Scion and the

subsequent search of the interior were supported by probable

cause. First, Peters maintains that Deputy Ernstes’ testimony

was too vague and conclusory to support a finding that the

Scion was following the Denali too closely. Second, Peters

contends that the court erred in crediting the deputy’s testimony regarding the smell of marijuana in the car. In considering a district court's decision on a motion to suppress, we

review findings of fact for clear error and questions of law de

novo. United States v. Wysinger, 683 F.3d 784, 793 (7th Cir. 2012);

United States v. Garcia-Garcia, 633 F.3d 608, 612 (7th Cir. 2011).

We begin with the stop of the Scion. The prosecution bears

the burden of proving by a preponderance of the evidence that

a warrantless stop is supported by probable cause. GarciaGarcia, 633 F.3d at 612; United States v. Basinski, 226 F.3d 829,

833 (7th Cir. 2000). When a police officer reasonably believes

that a driver has committed even a minor traffic offense,

probable cause supports the stop. Whren v. United States, 517

U.S. 806, 819 (1996); Garcia-Garcia, 633 F.3d at 612. We concluded in Muriel that, in assessing whether a vehicle is following another more closely than is reasonable and prudent under

Indiana law, the “use of the ‘two-second rule’ as a guide for
6 No. 12-3830

reasonableness comports with Indiana law.” Muriel 418 F.3d at

724. The only question, then, is whether the court clearly erred

when it credited Deputy Ernstes’ testimony that there was less

than two seconds’ braking time between the Scion and the

Denali. According to Peters, the deputy’s testimony was too

vague and conclusory regarding the distance between the two

vehicles to satisfy the government’s burden on a probable

cause determination. In particular, Peters complains that the

deputy did not explainhow he measured the distance from the

front bumper of the Scion to the rear bumper of the Denali.

Nor did the deputy specify how he measured the speed of the

two vehicles. 

The district court’s fact-findings were adequately supported by the record. At the suppression hearing, Deputy

Ernstes testified that he was driving behind the cars when he

noticed that the Denali slowed its speed and the Scion moved

closer to the back of the Denali. He was then asked how close

the Scion came to the Denali as the two traveled in tandem on

the interstate. He replied:

The front bumper of the Scion and the rear bumper

of the Denali – and we’re traveling at speeds around

60, 64 miles an hour at this time, around 60, between

that range. And it got less than – for the majority of

the time, it was between 50 and 75 feet. But, it was,

a short period of time, shorter than that. So ...

R. 280, Tr. at 156. When asked how he determined a safe

following distance, Deputy Ernstes testified that he used the

two-second rule described in the “Indiana Driver’s Manual.”

That manual provides a table of distances that a vehicle travels
No. 12-3830 7

in one second at particular speeds. For example, the deputy

testified that a vehicle traveling fifty-five miles per hour would

traverse 80.7 feet in one second, and a vehicle traveling sixtyfive miles per hour would cover 95.3 feet in one second. R. 280,

Tr. at 158–59. Under the two-second rule, a car traveling fiftyfive miles per hour should therefore allow approximately 160

feet of braking distance; a car traveling sixty-five miles per

hour should stay approximately 190 feet behind any vehicle in

front of it. Thus, even using the slowest speed that Deputy

Ernstes described (sixty miles per hour) and the longest

distance he observed between the cars (seventy-five feet), the

Scion was following the Denali too closely under Indiana law.

Muriel, 418 F.3d at 724. 

As for the adequacy of Deputy Ernstes’ estimates of the

distance between the vehicles and the speed of the Scion, the

deputy testified that he had been a police officer for fifteen

years with significant training and experience in traffic

enforcement, among other things. R. 280, Tr. at 149–52. The

district court found Deputy Ernstes to be credible and credited

his testimony. We must therefore defer to those findings of fact

unless they are clearly erroneous. Garcia-Garcia, 633 F.3d at 614.

See also United States v. Jones, 614 F.3d 423, 425–26 (7th Cir.

2010) (a factfinder's choice between two permissible views of

the evidence cannot be clearly erroneous). Under Federal Rule

of Evidence 701, a witness who is not testifying as an expert

may offer testimony in the form of an opinion if the testimony

is rationally based on the witness’s perception, helpful to

clearly understanding the witness’s testimony or determining

a fact in issue, and is not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702. Judging
8 No. 12-3830

the speed of a vehicle or a distance between two vehicles based

on an individual’s perception is the quintessential kind of

evidence contemplated by Rule 701. United States v. Conn, 297

F.3d 548, 554 n.2 (7th Cir. 2002). Perhaps the deputy could have

confirmed his estimate of the car’s speed with radar. Or he

could have compared the speed of the Scion to the speed of his

own vehicle as he followed the Scion. He could have counted

“one Mississippi, two Mississippi” to judge the distance

between the Scion and the Denali. Perhaps he did all of those

things but neither the government nor the defendant asked

him to explain how he determined the car’s speed and trailing

distance, and the defendant did not object to this testimony as

lacking foundation. In any case, none of those things were 3

necessary for the court to credit his truthful testimony that, as

an experienced police officer, he judged the distance to be too

short for cars moving so quickly. Nor is there anything vague

or conclusory in testimony that a car was traveling between

sixty and sixty-four miles per hour, fifty to seventy-five feet

behind another vehicle. On the contrary, that testimony was

very specific. In short, the district court committed no error in

crediting the testimony of an experienced police officer that,

For the sake of completeness, we note that Peters did not object to the 3

officer’s testimony as lacking foundation even though that is the essence of

his complaint on appeal. He therefore forfeited his foundation objection to

this testimony. United States v. James, 464 F.3d 699, 709 (7th Cir. 2006) (when

a defendant fails to object to the admission of evidence on particular

grounds until appeal, the argument is forfeited and ourreview is limited to

the correction of plain error). But the government did not argue forfeiture

and so we address the claim using the usual standard of review. See United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (claims of waiver may

themselves be waived).
No. 12-3830 9

after observing two cars traveling in tandem for a period of

time, he credibly believed that the trailing car was approximately seventy-five feet behind the lead car at a speed of

approximately sixty miles per hour. If an officer knowing 4

these facts could reasonably conclude that this combination of

speed and distance violated Indiana law, that is all that is

necessary to support probable cause. Garcia-Garcia, 633 F.3d at

614. As Peters has conceded, we decided that issue against him

in Muriel. 418 F.3d at 724. The government thus met its burden

of establishing probable cause sufficient to justify the traffic

stop.

In addition to the stop itself, Peters objected to the subsequent search of the vehicle. He contends that the deputy’s

testimony that he smelled marijuana was not credible. The

deputy found only a few particles of marijuana, he complains,

which was not consistent with the deputy’s claim that there

was a strong smell of burnt marijuana when Peters rolled

down his window. He also objects that the officer did not

collect any of the marijuana particles for testing and did not

summon a near-by police dog that was trained to sniff for

drugs, facts which he claims undercut the deputy’s credibility. 

On a motion to suppress, we review the district court’s

credibility determinations for clear error. United States v.

Brown, 664 F.3d 1115, 1117 (7th Cir. 2011). “A factual finding is

The district court also viewed and relied on a videotape of the traffic stop, 4

finding that “the videotape establishes that the Scion was in fact traveling

too closely.” R. 166, at 9 n.6. The videotape is not part of the record on

appeal. We have no reason to question the court’s finding that the tape

corroborated the deputy’s testimony.
10 No. 12-3830

clearly erroneous only if, after considering all the evidence, we

cannot avoid or ignore a definite and firm conviction that a

mistake has been made.” Brown, 664 F.3d at 1117–18. See also

United States v. Kreiger, 628 F.3d 857, 869 (7th Cir. 2010) (factual

finding regarding demeanor and credibility cannot be overturned unless the witness was incredible as a matter of law).

None of Peters’ arguments lead us to believe that the court

erred in crediting Deputy Ernstes. The deputy’s testimony that

he smelled burnt marijuana was corroborated, not contradicted, by his statement that he found marijuana particles on

Peters’ clothing. Peters was not charged with marijuana

possession and so there was no need for the deputy to collect

the few crumbs that he observed on Peters’ clothing. Given

that the smell was of burnt marijuana, there was nothing

unusual about the fact that only a few crumbs remained in the

car. And there was no need for the deputy to employ a dog

specially trained to ferret out subtle odors of illicit drugs when

the deputy was “hit by an overwhelming smell of marijuana”

when the window descended. R. 280, Tr. at 175. We have held

that a police officer “who smells marijuana coming from a car

has probable cause to search that car.” United States v. Franklin,

547 F.3d 726, 733 (7th Cir. 2008). The judgment of the district

court is therefore

AFFIRMED.