UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4677
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICK BERNARD HARVEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(7:06-cr-10056-gec)
Submitted: February 5, 2008 Decided: March 13, 2008
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Fay F. Spence, Assistant
Federal Public Defender, Roanoke, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Jennifer R. Bockhorst, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patrick Harvey was indicted for possession with intent to
distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(D) (2000). Harvey moved to suppress the evidence upon which
the indictment was based, arguing that his vehicle was stopped and
searched without probable cause. The district court denied the
motion after an evidentiary hearing. Harvey pled guilty, reserving
the issue of the district court’s denial of his suppression motion.
Harvey argues on appeal that the district court erred in
denying his motion to suppress because Park Ranger Katie
Pitzenberger stopped his vehicle based upon a mistake of law.*
Harvey contends that, even if he did not use his turn signal at the
stop sign, Pitzenberger’s stated reason for stopping Harvey, he did
not violate the relevant Virginia statute because the statute
requires that turn signals be used only when another vehicle may be
affected by the turn.
We review the district court’s factual findings
underlying the denial of a motion to suppress for clear error and
its legal conclusions de novo. United States v. Grossman, 400 F.3d
212, 216 (4th Cir. 2005). “As a general matter, the decision to
stop an automobile is reasonable where the police have probable
*
Harvey does not argue on appeal that the stop was pretextual,
or that the search of his vehicle following the stop was not
supported by probable cause.
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cause to believe that a traffic violation has occurred.” Whren v.
United States, 517 U.S. 806, 810 (1996) (citations omitted).
“[O]nly the probability, and not a prima facie showing, of criminal
activity is the standard of probable cause.” Illinois v. Gates,
462 U.S. 213, 235 (1983) (internal quotation marks and citation
omitted).
The Virginia Code Section concerning the use of turn
signals provides:
Every driver who intends to back, stop, turn, or partly
turn from a direct line shall first see that such
movement can be made safely and, whenever the operation
of any other vehicle may be affected by such movement,
shall give the signals required in this article, plainly
visible to the driver of such other vehicle, of his
intention to make such movement.
Va. Code Ann. § 46.2-848 (Michie 2004).
In this case, although Pitzenberger’s observation that
Harvey did not use his turn signal at the stop sign might not have
been sufficient, standing alone, to constitute a prima facie
showing that he violated § 46.2-848, it was sufficient to
demonstrate a probability that Harvey violated the statute.
Pitzenberger’s own vehicle was parked close to where Harvey came to
a stop, and Richard Charles Schultz, Jr., Harvey’s own witness,
testified that he was following closely behind Harvey. Harvey’s
turn could have affected one or both of these vehicles.
Accordingly, Pitzenberger’s stop of Harvey’s vehicle was supported
by probable cause that a traffic violation had occurred, and the
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district court did not err in denying Harvey’s motion to suppress
the evidence seized after the stop.
For the reasons stated above, we affirm the district
court’s denial of Harvey’s motion to suppress. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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