                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 11-3311
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                       Paul Beard

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: January 18, 2013
                               Filed: March 8, 2013
                                  ____________

Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.
                       ____________

SHEPHERD, Circuit Judge.

       On April 4, 2009, Arkansas State Trooper Chris Goodman (“Goodman”)
discovered more than 180 pounds of raw marijuana in Paul Beard’s (“Beard”) car
trunk after pulling Beard over for alleged traffic violations. Beard moved to suppress
the marijuana, arguing that the search violated his Fourth Amendment rights because
Goodman did not have a lawful reason for stopping his vehicle. After a hearing, the
district court1 denied Beard’s motion. Beard conditionally pled guilty to conspiracy
to possess with the intent to distribute marijuana in violation of 21 U.S.C. § 846,
reserving his right to appeal the suppression ruling. The district court2 sentenced him
to a below-guidelines sentence of twelve months plus one day imprisonment, followed
by three years of supervised release. He now appeals, arguing the district court erred
in crediting Goodman’s testimony over Beard’s at the suppression hearing because a
video recording of the traffic stop contradicted Goodman’s testimony. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                          I.

        At the suppression hearing, Goodman testified that he was parked on the
shoulder of the road after completing a traffic stop on an unrelated vehicle. As he was
waiting to pull into traffic, he looked behind him and saw Beard’s car approaching in
the right-hand lane. Once Beard’s car “got within 50 yards or so, it kind of jerked to
the left and got partially in the left lane but not all the way.” After Beard passed
Goodman, Beard got back into the right lane but swerved onto the shoulder.
Goodman then pulled Beard over for violating Arkansas traffic laws concerning
careless driving. Goodman testified that as soon as Beard rolled down his car window
at the beginning of the traffic stop, Goodman smelled raw marijuana and immediately
decided that he was going to search the vehicle. After placing Beard into the back of
his patrol car and asking him some questions, Goodman searched Beard’s vehicle and
discovered the raw marijuana in the trunk.




      1
       The Honorable Garnett Thomas Eisele, United States District Judge for the
Eastern District of Arkansas, now retired.
      2
        Judge Eisele retired before Beard’s sentencing, and Beard’s case was
reassigned to the Honorable Brian S. Miller, Chief Judge, United States District Court
for the Eastern District of Arkansas.

                                         -2-
        Beard’s testimony at the suppression hearing painted a different picture of the
events leading up to the traffic stop. Beard testified that he was traveling in the right
lane as he approached Goodman’s vehicle, that there were several cars in the left lane
preventing him from moving over, and that he slowed down until those cars passed
him so that he could move safely into the left lane. He denied “jerking” his car into
the left lane and denied crossing onto the right shoulder. Beard also submitted a video
of the traffic stop, recorded from the forward-facing camera in Goodman’s patrol car,
that Beard argued corroborated his version of events.

       After listening to the testimony and viewing the video, the district court denied
Beard’s suppression motion. United States v. Beard, No. 4:09CR00183-01 GTE, slip
op. at 8 (E.D. Ark. Oct. 26, 2010). In doing so, the district court discredited “those
portions of Defendant Beard’s testimony that contradict Trooper Goodman’s
testimony.” Id. at 2. The court found that the video did “not show the traffic Mr.
Beard described as being in front of him and to his left.” Id. Moreover, the court
found that while the video “does not show Mr. Beard’s vehicle going off on the
shoulder to the right,” this was “not dispositive” because “Trooper Goodman’s view
of the vehicles in front of him would be considerably more expansive than that of the
video camera located in his patrol car.” Id. at 2-3. Based on these factual findings,
the district court held that a “reasonable officer could conclude that such driving
violated Arkansas’s ‘careless driving’ statute,” and that Goodman’s subsequent search
of Beard’s vehicle was lawful under the automobile exception to the warrant
requirement. Id. at 5, 7.

                                           II.

       “We review de novo the district court’s determination that reasonable suspicion
and probable cause existed. We review the district court’s factual findings under a
clearly erroneous standard.” United States v. Donnelly, 475 F.3d 946, 951 (8th Cir.
2007) (internal citations omitted). A district court’s factual finding is clearly

                                          -3-
erroneous if the reviewing court “is left with the definite and firm conviction that a
mistake has been committed.” Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011)
(internal quotation marks omitted). However, a reviewing court may not “reverse the
finding of the trier of fact simply because it would have decided the case differently
if finding the facts de novo.” Id.

       Under the Fourth Amendment, law enforcement officers may stop a vehicle if
they have “an articulable and reasonable suspicion that a traffic violation has
occurred,” even if the traffic violation is only minor. United States v. Washington,
455 F.3d 824, 826 (8th Cir. 2006). Under what is termed the “automobile exception”
to the warrant requirement, an officer who has lawfully stopped a vehicle can search
the vehicle without a warrant if the officer has probable cause. United States v. Mayo,
627 F.3d 709, 713-14 (8th Cir. 2010). “Probable cause exists when, given the totality
of the circumstances, a reasonable person could believe there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Id. (internal
quotation marks omitted). The smell of marijuana in a vehicle can establish probable
cause to search the vehicle for drugs. United States v. Peltier, 217 F.3d 608, 610 (8th
Cir. 2000).

        Here, an Arkansas statute prohibits “careless driving,” which includes, inter
alia, “[i]mproper or unsafe lane changes,” “operat[ing] any vehicle in such a manner
which would cause a failure to maintain control,” and “operat[ing] a vehicle in any
manner when the driver is inattentive and such inattention is not reasonable and
prudent in maintaining vehicular control.” Ark. Code Ann. § 27-51-104(b). Another
Arkansas statute requires motorists to “move when possible into the farthest lane”
from a stopped law enforcement vehicle and to “remain in that lane until past” the
stopped vehicle. Id. § 27-51-310(a)(1).

       Beard concedes that violation of these statutes authorizes an officer to stop the
driver’s vehicle. He also concedes that if Goodman smelled raw marijuana

                                          -4-
immediately after Beard rolled down his window, then Goodman had probable cause
to search his car under the automobile exception. However, Beard argues that the
district court erred in crediting Goodman’s testimony concerning the factual basis for
the traffic stop because that testimony was inconsistent with the video. He asserts that
Goodman’s search did not fall within the automobile exception because the initial
traffic stop was unlawful. Thus, the only question before us is whether the initial
traffic stop was lawful.

       This Court has reviewed the video of the traffic stop. Contrary to Beard’s
assertions, the video does not present a clear picture of the events leading up to the
traffic stop. Because of the video’s poor resolution and distorted perspective, this
Court cannot tell which lane Beard’s car was in after Goodman pulled onto the
highway, or whether Beard’s car ever crossed onto the shoulder. Moreover, the video
captures only what occurred in front of Goodman’s patrol car, not what occurred
while Beard was approaching the patrol car from behind. After reviewing the video,
we cannot say the district court clearly erred in concluding that Goodman had a better
view of events than the camera in his patrol car, and consequently in deferring to
Goodman’s description of the incident. See VonWald, 638 F.3d at 915 (“Where there
are two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.”). Moreover, to the extent Beard generally challenges
Goodman’s credibility, “findings regarding witness credibility are virtually
unreviewable on appeal.” See United States v. Coleman, 700 F.3d 329, 334 (8th Cir.
2012) (internal quotation marks omitted).

       Given Goodman’s description of Beard’s erratic driving, Goodman had “an
articulable and reasonable suspicion” that Beard violated Arkansas traffic laws. He
consequently had a lawful basis for stopping Beard’s vehicle. See Washington, 455
F.3d at 826. Moreover, Goodman’s search of the vehicle and seizure of the marijuana
were lawful under the automobile exception because he smelled raw marijuana



                                          -5-
immediately after Beard rolled down his car window. See Peltier, 217 F.3d at 610.
Thus, the district court correctly denied Beard’s motion to suppress.3

                                         III.

      Accordingly, we affirm.
                     ______________________________




      3
       Beard also argues the evidence should be suppressed because Goodman
allegedly violated his Miranda rights during the traffic stop. We need not address this
argument because even if there was a Miranda violation, suppression would not be
warranted since Goodman had probable cause to search the vehicle independent of
any statements by Beard. See United States v. Fleck, 413 F.3d 883, 893 (8th Cir.
2005) (suppression of physical evidence not warranted when “[n]othing in the record
suggests that the [defendants] made any involuntary statements that led to the
discovery of the [evidence]”).

                                         -6-
