                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4401


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KENNETH A. WINGLE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:13−cr−00018-HEH-1)


Argued:   March 20, 2014                  Decided:   April 10, 2014


Before DUNCAN, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:    Peter Dean Eliades, ELIADES & ELIADES, Hopewell,
Virginia, for Appellant.    Katharine M.E. Adams, UNITED STATES
ARMY JAG CORPS, Fort Lee, Virginia, for Appellee.       ON BRIEF:
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
Brian R. Hood, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Kenneth      A.   Wingle   appeals        from    the      district     court’s

decision affirming the magistrate judge’s denial of his motion

to suppress evidence seized during an inventory search following

a traffic stop and arrest. For the reasons set forth below, we

affirm the judgment of the district court.



                                           I

       Early   on    the   morning    of   September         2,   2012,    Wingle      was

driving on Route 36 adjacent to Fort Lee, Virginia and within

the    special      territorial   jurisdiction          of    the    United    States.

Wingle stopped at a red light, and Officer Brian Michaels, a

police officer with the Department of the Army, stopped next to

him in an unmarked patrol car. When the light turned green, both

cars   accelerated       with   Wingle’s       car   leading.       Officer    Michaels

pulled up alongside Wingle’s car and noticed it drifting toward

his    lane.   Officer     Michaels    applied        his     brakes      to   avoid    a

collision and observed Wingle looking down toward his lap and a

bluish-white light illuminated Wingle’s face and chest.

       Officer Michaels initiated a traffic stop. Upon approaching

Wingle’s car, the officer noticed a strong smell of alcohol and

observed that Wingle had bloodshot eyes and that his speech was

unusually slow and deliberate. The officer then requested that

Wingle perform a field sobriety test; Wingle refused. Officer

                                           2
Michaels informed Wingle that he was under arrest for driving

under the influence of alcohol and asked him several times to

exit    his     vehicle.    After       Wingle    repeatedly    refused,    Officer

Michaels forcibly removed him from the car and placed Wingle

under arrest.

       During     an   inventory        search     of    Wingle’s   car,    Officer

Michaels found a glass smoking pipe in the glove compartment

with    what     appeared    to    be    (and    was    later   confirmed   to   be)

marijuana residue in the bowl. Officer Michaels cited Wingle

with    driving    under     the    influence      of   alcohol,    possession   of

marijuana, resisting arrest, and failure to maintain his lane of

travel while driving.

       Wingle was then charged in the United States District Court

for the Eastern District of Virginia with one count of operating

a motor vehicle under the influence of alcohol in violation of

18 U.S.C. § 13 and Va. Code. Ann. §§ 18.2-266ii and 18.2-270

(Count One); one count of possession of marijuana in violation

of 21      U.S.C. § 844(a) (Count Two); one count of resisting

arrest in violation of 18 U.S.C. § 111 (Count Three); one count

of     driving    while     operating      a     handheld   cellular   device    in

violation of 32 C.F.R. § 634.25(f) and Va. Code Ann. § 46.2-

1078.1 (Count Four); and one count of failure to stay within one

lane when operating a motor vehicle on a divided highway in



                                            3
violation of 32 C.F.R. § 634.25(f) and Va. Code Ann. § 46.2-804

(Count Five).

         Wingle moved the district court to suppress evidence found

during        the   search       of    his   car,     arguing     that    Officer      Michaels

lacked probable cause or reasonable suspicion to initiate the

traffic stop. The federal magistrate judge heard argument and

denied Wingle’s motion. 1 Wingle then entered into a conditional

plea agreement with the government, agreeing to plead guilty to

Counts        One   and     Two       and    reserving      the   right    to     appeal      the

magistrate          judge’s       decision.         In     conformity      with       the    plea

agreement, the magistrate judge adjudicated Wingle guilty with

respect to Counts One and Two and imposed a sentence consisting

of   a       $250   fine,    a    $25       special      assessment,     and    one    year    of

probation on Count One, and a $25 special assessment and one

year of probation on Count Two. 2

         Wingle     appealed          the    magistrate      judge’s     decision       to    the

district court judge, and the district court judge affirmed.

Wingle timely appealed. We have jurisdiction under 28 U.S.C.

§ 1291.



         1
        The Federal Magistrates Act gives federal magistrate
judges    consent   jurisdiction   over   petty   offenses   and
misdemeanors. See 28 U.S.C. § 636(a)(3)–(5).
     2
       Also consistent with the terms of the plea agreement, the
government moved to dismiss the remaining counts against Wingle,
and the district court granted that motion.


                                                 4
                                            II

       When considering an appeal from a district court acting in

its    capacity       as   an   intermediate       appellate     court      reviewing   a

magistrate        judge’s       decision,    we     “apply      to    the    magistrate

[judge’s decision] the same standard used by the district court”

judge on the first appeal. United States v. Peck, 545 F.2d 962,

964 (5th Cir. 1977).

       In a consent case proceeding under 28 U.S.C. § 636(a)(3)–

(5), the scope of an appeal to the district court judge “is the

same as in an appeal to the court of appeals from a judgment

entered      by   a   district     judge.”       Fed.    R.   Crim.   P.    58(g)(2)(D).

Accordingly, the district court judge reviewed the magistrate

judge’s findings of fact for clear error and conclusions of law

de novo, viewing the evidence in the light most favorable to the

government. See United States v. McBride, 676 F.3d 385, 391 (4th

Cir. 2012). We apply the same standard. Id.



                                            III

       The Fourth Amendment guarantees “[t]he right of the people

to    be    secure    in   their   persons,       houses,     papers,      and   effects,

against unreasonable searches and seizures.” U.S. Const. amend.

IV. “Because an automobile stop is a seizure of a person, the

stop must comply with the Fourth Amendment’s requirement ‘that

it    not    be   ‘unreasonable’       under       the    circumstances.’”        United

                                             5
States v. Wilson, 205 F.3d 720, 722–23 (4th Cir. 2000) (en banc)

(quoting Whren v. United States, 517 U.S. 806, 810 (1996)). “As

a result, such a stop ‘must be justified by probable cause or a

reasonable suspicion, based on specific and articulable facts,

of   unlawful     conduct.’”    Id.     at       723    (quoting        United    States    v.

Hassan El, 5 F.3d 726, 729 (4th Cir. 1993)). “When an officer

observes a traffic offense--however minor--he has probable cause

to stop the driver of the vehicle.” Hassan El, 5 F.3d at 730

(quoting United States v. Cummins, 920 F.2d 498, 500 (8th Cir.

1990)).    The    reasonable    suspicion          standard        is    “less     demanding

. . . than probable cause,” and requires only “‘specific and

articulable facts which, taken together with rational inferences

from     those    facts,’      evince        ‘more       than      an     ‘inchoate        and

unparticularized      suspicion       or     hunch’          of   criminal       activity.’”

United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008).

       Officer Michaels stopped Wingle based upon his observation

of   Wingle’s     drifting     as   well     as        his    texting     while    driving.

Officer Michaels observed Wingle’s car “drifting over towards

[his] vehicle” and testified that Wingle “was drifting towards

my lane to where I had to brake.” (J.A. 44–45.) Officer Michaels

further testified that “I felt that if I didn’t apply my brakes,

that his vehicle would have drifted and would have drifted into

mine.”    (J.A.    45.)     These     specific,          articulable        observations,

which the magistrate judge found credible, created at least a

                                             6
reasonable       suspicion    giving      Officer     Michaels       justification          to

initiate a traffic stop against Wingle for reckless driving and

for failure to maintain a lane of travel. Thus, the traffic stop

is    justified     under     the    Fourth       Amendment        unless     Wingle    can

demonstrate that the magistrate judge clearly erred in accepting

Officer Michaels’ testimony as credible.

       We “defer to a district court’s credibility determinations,

for ‘it is the role of the district court to observe witnesses

and     weigh    their     credibility       during        a    pre-trial     motion        to

suppress.’” United States v. Abu Ali, 528 F.3d 210, 232 (4th

Cir. 2008) (quoting United States v. Murray, 65 F.3d 1161, 1169

(4th Cir. 1995)). To overcome the magistrate judge’s credibility

determination,       Wingle       must    provide    affirmative,           contradictory

evidence establishing clear error. See United States v. McGee,

736 F.3d 263, 271 (4th Cir. 2013) (holding that a defendant’s

circumstantial evidence, while significant, was not enough to

show     clear     error     in     the     district       court’s        acceptance        of

uncorroborated testimony of an officer).

       Wingle     argues     that     the    magistrate           judge’s     credibility

finding     is    clearly     erroneous          because       (1) the      patrol     car’s

dashboard camera does not show reckless driving or failure to

maintain a single lane of travel; (2) at the time of the traffic

stop,    Officer    Michaels        mentioned      only        Wingle’s   texting      as    a

justification for the stop; and (3) Officer Michaels admitted in

                                             7
his testimony that he would not have initiated the stop for

reckless driving alone because he did not believe that Wingle’s

conduct warranted that charge.

       With    respect        to     Wingle’s      first     argument,   because       the

dashboard camera was positioned to record only the area in front

of the patrol car, the video recording does nothing to undermine

the magistrate judge’s finding that Officer Michaels’ testimony

was credible. Wingle argues that the video shows that Officer

Michaels did not take any sudden or drastic maneuvers to avoid a

collision.       As     the        magistrate       judge     found,   however,        “the

videotape does depict the officer’s vehicle slowing to an extent

that       [Wingle’s]    vehicle        moved       in    front   of   it,     which    is

consistent with the officer’s description of the events.” (J.A.

118.)       Because     the        videotape       does     not   contradict     Officer

Michaels’ testimony, it is insufficient to defeat the magistrate

judge’s credibility determination under McGee. 3


       3
       Wingle’s evidence in this case is even weaker than that
presented in McGee. In McGee, a police officer testified that he
had initiated a traffic stop against the defendant because he
observed an inoperative brake light on the defendant’s car. 736
F.3d at 270. The district court accepted the officer’s
uncorroborated testimony despite the fact that the defendant
offered evidence that subsequent testing of the brake lights
after the traffic stop indicated that the lights were fully
functional. Id. On appeal, we expressed that the defendant’s
evidence “that the brake light was not inoperative [was]
significant” but ultimately concluded that the evidence was
“nonetheless   circumstantial  and  relie[d]  on   the  untested
reliability of a third party’s recordkeeping.” Id. at 271. Thus,
(Continued)
                                               8
       With respect to Wingle’s second argument, that at the time

of the traffic stop, Officer Michaels mentioned only Wingle’s

texting       as     a     justification         for       the    stop,       there      is     no

constitutional requirement that an officer must inform a suspect

of every reason for initiating a traffic stop. See Devenpeck v.

Alford, 543 U.S. 146, 155 (2004) (“While it is assuredly good

police practice to inform a person of the reason for his arrest

at the time he is taken into custody, [the Court has] never held

that   to     be     constitutionally          required.”).        Wingle      implies        that

Officer Michaels’ other justifications for the stop are post hoc

fabrications         designed      to    skirt      the    limitations        of   the    then-

applicable         version        of     the        Virginia      texting-while-driving

statute, which prohibited officers from issuing citations for

violations of that statue without cause to stop or arrest the

driver    for      some    other       infraction.        See    Va.   Code    Ann.   § 46.2-

1078.1(C) (2009). However, Officer Michaels’ subjective intent

in initiating the stop is irrelevant to our analysis under the

Fourth Amendment. See United States v. Johnson, 734 F.3d 270,

275    (4th     Cir.      2013)    (holding         that    the    reasonableness         of    a

traffic       stop       under    the    Fourth       Amendment        “is    an   objective

standard”).          Officer       Michaels’          testimony        established            that



we concluded, the defendant in McGee had not carried his burden
to show that the district court’s credibility determination was
made in clear error. Id.


                                                9
Wingle’s car drifted, causing Officer Michaels to anticipate a

possible     collision,          creating        reasonable           suspicion     to     stop

Wingle’s     vehicle       for        reckless      driving.          To   show    that     the

magistrate    judge’s       credibility          finding        was    clearly     erroneous,

Wingle     must   do   more       than        raise      inconsistent       circumstantial

evidence. See McGee, 736 F.3d at 271.

     Wingle’s third argument, that Officer Michaels admitted in

his testimony that he would not have initiated the stop for

reckless     driving       because       he    did       not    believe     that    Wingle’s

conduct warranted that charge, also fails. A “stop remains valid

even if the officer would have ignored the traffic violation but

for his other suspicions.” Hassan El, 5 F.3d at 730 (quoting

Cummins, 920 F.2d at 500). As the magistrate judge concluded,

“Officer    Michaels       clearly       had     cause     to    charge     [Wingle]       with

reckless driving, regardless of whether he ultimately did so.”

(J.A.    119.)    An   officer’s          exercise         of    discretion       in     making

charging decisions has no impact on whether reasonable suspicion

existed at the time of the stop. See Devenpeck, 543 U.S. at 154–

55 (“Subjective intent of the arresting officer, however it is

determined    .   .    .   ,     is    simply       no   basis    for      invalidating      an

arrest.”). Moreover, Officer Michaels explained that he did not

charge Wingle with reckless driving because of his understanding

of a Virginia state law policy of not charging reckless driving

along with driving under the influence. In fact, Virginia state

                                               10
law provides that when a person is charged with both reckless

driving and driving under the influence as a result of the same

acts and is convicted of one charge, the other charge must be

dismissed.   See      Va.   Code   Ann.    § 19.2-294.1.      As     with     his

subjective   intent    in   initiating    the   stop   or   his    exercise    of

charging discretion, Officer Michaels’ reason for exercising his

charging discretion--in this case a minor mistake of law--is

irrelevant. See Devenpeck, 543 U.S. at 154–55. 4



                                     IV

     For the foregoing reasons, the judgment of the district

court is

                                                                     AFFIRMED.




     4
       Because we conclude that Officer Michaels had cause to
initiate the stop for reckless driving, we need not address
whether the stop would have been justified based solely upon
Wingle’s texting while driving under the then-existing version
of section 46.2-1078.1 of the Virginia Code.


                                     11
