United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1406
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United States of America, *
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Appellee, *
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v. *
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Ronald Prokupek, *
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Appellant. *
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Appeals from the United States
No. 10-1512 District Court for the
___________ District of Nebraska.
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United States of America, *
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Appellee, *
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v. *
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Christine McGlothlen, *
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Appellant. *
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Submitted: November 17, 2010
Filed: January 24, 2011
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Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
On February 29, 2008, troopers of the Nebraska State Patrol set up a ruse drug
checkpoint near the Utica exit off of Interstate 80 in Seward County, Nebraska. They
posted a sign indicating that there would be a drug checkpoint ahead and then
positioned troopers at the next interstate exit. Trooper James Estwick stopped a
vehicle occupied by Ronald Prokupek and Christine McGlothlen at the exit as it
turned from the exit ramp on to a county road. According to the recording made by
the camera on his cruiser’s dashboard immediately after the stop, Trooper Estwick
told Prokupek that “the reason you got pulled over is because when you exited the
interstate you didn’t signal—you didn’t signal your exit [inaudible]. You signaled
your turn, but you didn’t signal—exit—signal when you were getting on the exit.”
Trooper Estwick detained Prokupek and McGlothlen, and a few minutes later
Sergeant Lonnie Connelly arrived with a drug dog. Sergeant Connelly walked the dog
around Prokupek and McGlothlen’s car several times and then told Trooper Estwick
that the dog had alerted to an open window on the driver’s side door. The officers
then searched the car and found 151 grams of methamphetamine in a compartment in
the center armrest.
Prokupek and McGlothlen were charged with possession with intent to
distribute methamphetamine, a violation of 21 U.S.C. § 841(a)(1), (b)(1). Both
defendants moved to suppress the evidence obtained during the search, arguing, inter
alia, that the initial stop was not supported by probable cause and that the drug dog’s
actions did not provide probable cause for the search of the car because the dog was
not properly trained and did not provide a sufficient indication that drugs were
present.
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At a suppression hearing before a magistrate judge, Trooper Estwick testified
that the probable cause for the traffic stop was Prokupek’s failure to signal the
vehicle’s turn from the interstate exit ramp on to the county road. Counsel for
Prokupek pressed Trooper Estwick on the inconsistency between his testimony at the
suppression hearing and his contemporaneous statement, captured by his cruiser’s
dashboard camera, that Prokupek had signaled the vehicle’s turn on to the county road
but that he had stopped the vehicle based on Prokupek’s failure to signal the vehicle’s
exit from the interstate. Trooper Estwick initially demurred, repeating several times
that he stopped Prokupek simply “for failing to signal” and insisting that “I don’t
understand what your question is. I really don’t.” Finally, when Prokupek’s counsel
again asked him if he stopped Prokupek because “[h]e failed to signal his northbound
turn onto the [county] roadway,” Trooper Estwick responded, “Yes. He failed to
signal,” and further testified, “I couldn’t see [Prokupek] when he left the Interstate.
. . . I didn’t see him leave the Interstate, sir.”
The magistrate judge found Trooper Estwick’s testimony that Prokupek failed
to signal the vehicle’s turn from the exit ramp to the county road credible and
recommended that the motions to suppress be denied. Prokupek and McGlothlen
objected to the magistrate judge’s report and recommendation, arguing that Trooper
Estwick’s testimony was not credible because it was contradicted by his
contemporaneous statement. After de novo review, the district court adopted the
report and recommendation but did not adopt the finding that the failure to signal
occurred when Prokupek turned the vehicle on to the county road. The district court
instead found that “Prokupek failed to [signal] at one of the two described places.”
After rejecting the remaining suppression arguments, the district court denied
Prokupek and McGlothlen’s motions to suppress. After their motions to suppress
were denied, Prokupek and McGlothlen entered conditional guilty pleas. See Fed. R.
Crim. P. 11(a)(2). McGlothlen was sentenced to 18 months’ imprisonment, and
Prokupek was sentenced to 60 months’ imprisonment. Both Prokupek and
McGlothlen appealed the denial of their motions to suppress, arguing that both the
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stop and the search of the vehicle were not supported by probable cause. Prokupek
also appealed his sentence.
At oral argument before this Court, the Government conceded that probable
cause for the stop could not be based on any failure to signal the vehicle’s exit from
the interstate on to the exit ramp because Trooper Estwick was not in a position to
observe Prokupek and McGlothlen’s vehicle at that time. In light of this concession,
we remanded to the district court to clarify its finding that Prokupek failed to signal
“at one of the two described places” but retained jurisdiction over the appeals. United
States v. Prokupek, No. 10-1406 (8th Cir. Dec. 10, 2010). We noted that the district
court had discretion on remand to engage in further proceedings and reconsider its
ruling. The Government filed a motion to reopen the suppression hearing, which the
district court denied. Based solely on the record of the earlier suppression hearing, the
district court entered a supplemental order finding “Trooper Estwick’s testimony at
the suppression hearing [that Prokupek failed to signal before his turn on to the county
road] to be credible.” Although the court “acknowledge[d] the apparent discrepancy
between Trooper Estwick’s testimony and his statement on the video tape,” it
concluded that “his statement at the time of the traffic stop was an unintentional
misstatement.”
We review the district court’s ultimate determination that probable cause
existed de novo, but we review its factual findings for clear error. United States v.
Donnelly, 475 F.3d 946, 951 (8th Cir. 2007). Although a factual finding based on a
determination that a witness is credible “can virtually never be clear error,” when
“[d]ocuments or objective evidence . . . contradict the witness’ story; or the story itself
[is] so internally inconsistent or implausible on its face that a reasonable factfinder
would not credit it . . . the court of appeals may well find clear error even in a finding
purportedly based on a credibility determination.” Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 575 (1985).
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The Fourth Amendment prohibits “unreasonable searches and seizures,” and
“stopping an automobile and detaining its occupants constitute a ‘seizure’ within the
meaning of [the Fourth Amendment],” Delaware v. Prouse, 440 U.S. 648, 653 (1979).
We previously have held that reasonable suspicion for a traffic stop cannot be based
solely on the fact that a driver exits an interstate after seeing a sign indicating that a
drug checkpoint lies ahead. United States v. Carpenter, 462 F.3d 981, 986-87 (8th
Cir. 2006). However, since “[a]ny 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), a traffic stop pursuant to a ruse checkpoint does not violate the
Fourth Amendment if the driver commits a traffic violation when exiting the
interstate, United States v. Wright, 512 F.3d 466, 471 (8th Cir. 2008). Relying on
Trooper Estwick’s testimony at the suppression hearing, the district court found that
a traffic violation occurred when Prokupek failed to signal his turn on to the county
road.
Prokupek and McGlothlen argue that this finding by the district court is clearly
erroneous because Trooper Estwick’s testimony at the suppression hearing that
Prokupek failed to signal the vehicle’s turn on to the county road is clearly
contradicted by his contemporaneous statement. We agree that the two statements are
contradictory. In the recording made by the dashboard camera, Trooper Estwick can
be heard saying to Prokupek that “the reason you got pulled over is because when you
exited the interstate you didn’t signal—you didn’t signal your exit.” Trooper Estwick
then went on to say to Prokupek that “you signaled your turn,” which we are
convinced can refer only to the vehicle’s turn from the exit ramp on to the county
road. This plainly contradicts Trooper Estwick’s suppression-hearing testimony that
Prokupek failed to signal his turn on to the county road.
In its supplemental order, the district court attempted to dismiss the
contradiction by finding that Trooper Estwick’s contemporaneous statement was “an
unintentional misstatement.” However, we can find no evidence in the record that
supports this finding, aside from the bare fact that Trooper Estwick contradicted the
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statement at the suppression hearing. Although defense counsel pressed Trooper
Estwick on the inconsistency during cross-examination, Trooper Estwick offered no
explanation for the inconsistency, nor did he testify that his contemporaneous
statement was a misstatement. In the absence of any evidence in the record to support
the district court’s conclusion that Trooper Estwick misspoke at the time of the arrest,
we conclude that this finding is clearly erroneous. See United States v. Alberts, 721
F.2d 636, 640 (8th Cir. 1983) (“[T]he [district] court’s finding . . . was not supported
by substantial evidence and was, thus, clearly erroneous.”).
The district court’s factual finding that “Prokupek failed to signal his turn
before turning from the exit ramp on to the county road” is supported only by the
court’s determination that Trooper Estwick’s testimony at the suppression hearing to
that effect was credible. Because Trooper Estwick’s testimony at the hearing is so
clearly and affirmatively contradicted by his own statement at the time of the events,
in the absence of any explanation for this contradiction that is supported by the record,
we conclude that Trooper Estwick’s after-the-fact testimony at the suppression
hearing is “implausible on its face,” Anderson, 470 U.S. at 575, and we are left with
the “firm and definite conviction that a mistake has been made,” United States v.
Pickar, 616 F.3d 821, 827 (8th Cir. 2010) (quoting United States v. Hines, 387 F.3d
690, 694 (8th Cir. 2004)). We therefore hold that the district court’s finding that
Prokupek failed to signal the turn on to the county road is clearly erroneous. Cf.
United States v. Streater, 70 F.3d 1314, 1321 (D.C. Cir. 1995) (“We conclude that the
district court clearly erred in crediting [the witness’s] testimony . . . when [the
witness’s] documented contemporaneous statements show the contrary.”).
The Government proffers no alternative justification for the traffic stop.
Therefore, the stop violated the Fourth Amendment, see Prouse, 440 U.S. at 653, and
the drugs and drug paraphernalia that eventually were seized are tainted fruit of this
violation and must be suppressed, see Wong Sun v. United States, 371 U.S. 471, 488
(1963). Accordingly, we reverse the district court’s denial of the motions to suppress,
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vacate Prokupek and McGlothlen’s convictions, and remand to the district court for
further proceedings not inconsistent with this opinion.1
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1
Since we reverse on the basis that the initial traffic stop was unsupported by
probable cause, we need not reach Prokupek and McGlothlen’s other challenges to the
search and Prokupek’s challenge to his sentence.
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