United States Court of Appeals

For the Eighth Circuit

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No. 16-2149

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United States of America

lllllllllllllllllllPlaintiff - Appellee

v.

Clayton High Wolf

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of South Dakota - Rapid City

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 Submitted: December 16, 2016

 Filed: January 26, 2017

[Unpublished]

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Before KELLY and MURPHY, Circuit Judges, and MAGNUSON, District Judge. 1

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MAGNUSON, District Judge.

The Honorable Paul A. Magnuson, United States District Judge for the

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District of Minnesota, sitting by designation.
Appellant Clayton High Wolf appeals the district court’s denial of his motion

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to suppress. For the following reasons, we affirm.

Shortly after midnight on July 17, 2014, Rapid City, South Dakota police

officer Carmen Visan was on patrol when she observed a vehicle without a light

illuminating its rear license plate. Because failure to have an illuminated rear license

plate violates South Dakota law, Visan initiated a traffic stop. After relaying the

driver’s information to dispatch, Visan discovered that the driver was Clayton High

Wolf, and that he had an outstanding warrant for driving under suspension and was

on federal probation. Visan placed High Wolf under arrest and found 39 smallcaliber bullets in his front left pants pocket. An assisting officer performing an

inventory search of the vehicle located a firearm under the passenger’s seat of the

vehicle.

In September 2014, the United States charged High Wolf with possession of

a firearm and ammunition by a prohibited person in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e)(1). Before trial, High Wolf moved to suppress the firearm

and ammunition obtained during the traffic stop, arguing that Visan did not have

probable cause to stop the vehicle. The magistrate judge conducted an evidentiary

hearing on the motion, heard four witnesses testify, and received a video and photos

of the traffic stop into evidence. The magistrate judge recommended that the motion

to suppress be denied because the video and photos “support Visan’s testimony that

the license plate light did not appear to be functioning.” (Appellant’s Brief Add. 4

at 13.) 

High Wolf timely objected to the magistrate judge’s report and

recommendation (“R&R”). Specifically, High Wolf objected to the magistrate

The Honorable JeffreyL. Viken, Chief Judge, United States DistrictCourt for

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the District of South Dakota.

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judge’s finding that Visan credibly testified about being unable to see the rear license

plate light within 50 feet of the vehicle.

The district court conducted a de novo review of the R&R. After reviewing the

suppression hearing transcript and watching the video of the traffic stop, the district

court determined that Visan’s testimony was inconsistent. During the suppression

hearing, Visan testified thatshe was driving northbound on LaCrosse Street when she

observed High Wolf’s vehicle driving in the opposite direction. She testified that

when she looked in her left side view mirror she noticed that no light illuminated the

vehicle’s rear license plate. She also testified that she turned around and began

following the vehicle before she initiated the traffic stop. The video, however,

showed Visan traveling northbound on LaCrosse Street when High Wolf’s vehicle

merged in front of her and began traveling in the same direction. 

Although the district court acknowledged that this inconsistency could affect

Visan’s credibility, he found that it was “neither germane to the justification for the

subsequent traffic stop nor to the remainder of the magistrate judge’s report.” 

(Appellant’s Brief Add. 2 at 4.) The district court also found that Visan’s testimony

about being unable to see the rear license plate light within 50 feet of the vehicle was

“confirmed by the video recording.” (Id.) Consequently, the district court overruled

High Wolf’s objections, adopted the R&R, and denied the motion to suppress. 

A jury convicted High Wolf on January 7, 2016, and the district court

sentenced him to 92 months in prison. High Wolf timely appealed.

On appeal fromthe denial of a motion to suppress, we review legal conclusions

de novo and factual findings for clear error. United States v. Woods, 747 F.3d 552,

555 (8th Cir. 2014). High Wolf challengesthe district court’s factual finding that the

rear license plate light was not functioning. According to High Wolf, Visan did not

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credibly testify about being unable to see the license plate light within 50 feet of the

vehicle, and she therefore lacked probable cause to stop the vehicle.

The assessment of a witness’s credibility is within the province of the trial

court and is virtually unreviewable on appeal. United States v. Cantrell, 530 F.3d

684, 692 (8th Cir. 2008) (quotation and citation omitted). A district court’s

credibility assessment is clearly erroneous only if there is “extrinsic evidence that

contradictsthe witness’s story or the story isso internally inconsistent or implausible

on its face that a reasonable fact-finder would not credit it.” United States v. Heath,

58 F.3d 1271, 1275 (8th Cir. 1995) (citation omitted). 

High Wolf argues that because Visan’s testimony about how she first

encountered his vehicle wasinconsistent with the video of the traffic stop, the district

court clearly erred in crediting her testimony about being unable to see a rear license

plate light within 50 feet of the vehicle. But as the district court aptly stated, how

Visan encountered High Wolf’s vehicle was not germane to the justification for the

stop. In addition, the district court watched the video of the traffic stop and

independently determined that Visan was unable to see the rear license plate light

within 50 feet of the vehicle. Having viewed the corroborating video itself, the

district court did not clearly err in crediting Visan’s testimony and concluding that

there was probable cause to stop the vehicle.

Affirmed.

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