United States of America, Plaintiff--appellee, v. Jeffrey John Fleming, Defendant--appellant, 59 F.3d 179 (10th Cir. 1995)

Defendant Jeffrey John Fleming was charged with possessing marijuana with intent to distribute in violation of 21 U.S.C. 841(a) (1). He filed a motion to suppress evidence and two motions to dismiss. The district court denied each motion. Defendant then entered a conditional guilty plea to the offense charged, reserving his right to appeal the denial of his motions. The district court sentenced him to five years of incarceration and four years of supervised release. We have jurisdiction under 28 U.S.C. 1291, and we affirm.

* On December 7, 1992, defendant was driving eastbound on Interstate 70 in a pickup truck with David Green. Near Green River, Utah, he passed the patrol car of Officer Richard Graham of the Emery County Sheriff's Office. Graham pulled onto the highway and followed the truck for roughly six miles. According to Graham's testimony, he observed the truck "crowd" the emergency line, drift to the center line, and then swerve into the emergency lane. Graham pulled the vehicle over to investigate whether the driver was impaired.

Graham's patrol car was equipped with a video camera, which requires the operator to press a button twice to activate the recording mechanism. Graham testified that he mistakenly pressed the button only once as he exited his patrol car. Consequently, the machine did not begin recording at that time.

Graham exited his patrol car and approached the vehicle on foot. As he did so, he noticed transparent windows on the driver's side of the vehicle. Through the side window of the camper shell, Graham observed what appeared to be two or three bales of marijuana. Graham testified that he saw the marijuana simply by walking near the truck, without leaning against the vehicle or shielding his eyes.

Having seen the contraband, Graham drew his weapon and ordered defendant and Green to exit the vehicle. Graham told them they were under arrest for possession with intent to distribute a controlled substance, handcuffed them, and placed them both in his patrol car. At this point, according to his testimony, Graham realized that the videotape machine was not recording, and he turned it on. Defendant disputes this account. He contends that the videotape recorded the entire incident, beginning when Graham first stopped the vehicle. He states that he and Green watched the tape replay several times on a small monitor while they were sitting in the patrol car. The tape admitted into evidence, however, lacked the beginning of the incident, when Graham allegedly observed the marijuana and arrested defendant and Green.

In any event, Graham took defendant and Green to the Sheriff's Office in his patrol car, and a tow truck brought the vehicle. Graham obtained a warrant to search the vehicle. Emery County officers executed the warrant and found 492 pounds of marijuana.

Defendant was charged with possession of marijuana with intent to distribute. He moved to suppress the marijuana seized from the vehicle on the grounds that Officer Graham lacked reasonable suspicion to stop the vehicle and that the marijuana Graham allegedly saw was not in plain view. Defendant also moved to dismiss on the ground that the videotape of the stop from Graham's patrol car had been altered to conceal illegal conduct.

The district court held an evidentiary hearing on defendant's motions on April 14 and May 12, 1993. Defendant filed a second motion to dismiss on January 4, 1994. On February 15, 1994, the district court denied each of defendant's motions. In August 1994, defendant pled guilty to the offense charged, reserving his right to appeal the district court's denial of his motions. He now appeals.

II

We review the factual findings of a district court from an evidentiary hearing on a motion to suppress evidence or a motion to dismiss for clear error. United States v. McSwain, 29 F.3d 558, 560 (10th Cir. 1994) (motion to suppress); United States v. Hall, 948 F.2d 387, 389-90 (10th Cir.) (motion to dismiss), cert. denied, 113 S. Ct. 2942 (1993). Findings of fact are clearly erroneous only when they lack "factual support in the record, or if the appellate court, after reviewing all the evidence, is left with the definite and firm conviction that a mistake has been made." LeMaire v. United States, 826 F.2d 949, 953 (10th Cir. 1987). Where a district court's factual determination is "plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). That is, if "there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Sorensen v. City of Aurora, 984 F.2d 349, 351 (10th Cir. 1993).

We also apply the clearly erroneous standard in reviewing a district court's finding of reasonable suspicion. United States v. Walker, 941 F.2d 1086, 1090 (10th Cir. 1991), cert. denied, 502 U.S. 1093 (1992). The ultimate determination of whether a search comports with the Fourth Amendment, however, "is a question of law that we review de novo." United States v. Greenspan, 26 F.3d 1001, 1004 (10th Cir. 1994). With these standards in mind, we turn to the merits of defendant's claims.

Defendant first alleges that Officer Graham's stop of the vehicle violated the Fourth Amendment's protection against unreasonable searches and seizures because Graham lacked reasonable suspicion. Defendant does not challenge the factual findings of the district court regarding Graham's basis for stopping the truck; he concedes that his "truck did in fact weave sharply into the emergency lane." Defendant instead argues that these facts did not create a reasonable suspicion to justify the stop.

A traffic stop, such as the one at issue here, constitutes a seizure for purposes of the Fourth Amendment. Colorado v. Bannister, 449 U.S. 1, 4 n. 3 (1980); McSwain, 29 F.3d at 561. Consequently, "the detaining officer must have an objectively reasonable articulable suspicion that a traffic violation has occurred or is occurring before stopping the automobile." United States v. Soto, 988 F.2d 1548, 1554 (10th Cir. 1993). In this case, Officer Graham saw defendant's truck drift to the center line and then swerve into the emergency lane. The district court concluded that this created a reasonable suspicion that the driver was impaired.

We find that the district court's determination that Officer Graham had reasonable suspicion was not clearly erroneous. Utah Code Ann. 41-6-44 makes it a crime for an individual to operate a motor vehicle while under the influence of alcohol, and section 41-6-44.6 criminalizes driving under the influence of a controlled substance. The facts recited by Graham constitute objective, articulable reasons for an officer to suspect that the driver of the truck was in some way impaired. Because the stop was supported by reasonable suspicion, it did not violate the Fourth Amendment.

Defendant next contends that the search of the truck was illegal because the marijuana that Graham claims to have seen was not in plain view.²  After conducting an evidentiary hearing, the district court concluded that " [p]ictures taken at the Sheriff's Office support Officer Graham's testimony that bales of marijuana were visible from the exterior of defendant's truck," that Graham "saw the marijuana through the side window of the camper shell," and that "the marijuana was in plain view." Defendant argues that these findings are clearly erroneous.

We find factual support in the record for the district court's conclusion that the marijuana was in plain view. Indeed, a photograph of the truck shows that the marijuana was visible through the truck's side window. Because the district court's account of the evidence is more than plausible, its findings do not amount to clear error.

Finally, defendant claims that Officer Graham altered the videotape depicting the incident. Specifically, defendant contends that Graham tampered with the tape "to avoid the video taped corroboration of a fourth amendment violation." He contends that " [a] close inspection of the video tape admitted into evidence reflects a break between the prior stop and the stop involved in the instant case," and that " [s]imilar breaks are not present between the video recordings of the previous stops on the tape."

After the evidentiary hearing, the district court concluded that "no tampering has occurred." The court found that "no credible evidence suggests that Officer Graham tampered with the police video tape." Defendant asserts that this factual finding is clearly erroneous.

Again, we must uphold the district court's factual finding unless there is no factual support for its conclusion in the record or we are "left with the definite and firm conviction that a mistake has been made." LeMaire, 826 F.2d at 953. After reviewing the record, we find ample support for the district court's determination that the videotape was not altered. The designer of the video camera system in Graham's patrol car, Roger Lefreniere, Jr., testified that, although the tape could be "copied over," a new recording would display the "recorded over" time rather than the original time. The tape admitted into evidence showed a time matching that of the incident, indicating that no portion had been taped over. Lefreniere also testified that it would be "almost impossible" for an officer to alter a tape because it would require altering the dispatch call-in times, the date and time on the tape, and the tape's audio track. In light of this evidence, the district court's conclusion that the videotape was not altered was not clearly erroneous.

III

In sum, we conclude that Officer Graham's stop of defendant's vehicle was supported by reasonable suspicion. We also hold that the district court's findings that the marijuana was in plain view and that the videotape of the stop was not altered were not clearly erroneous. For these reasons, the order of the district court denying defendant's motion to suppress and motions to dismiss is AFFIRMED.