                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-11-2009

USA v. John George
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1515




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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 08-1515
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                              JOHN PATRICK GEORGE,
                          a/k/a JOHN PATRICK HOLGUIN,
                           a/k/a JOHN GEORGE PATRICK,
                           a/k/a JOHN PATRICK HOQUIN,
                                 a/k/a DEAN GEORGE,

                                       Appellant
                                   _______________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 06-cr-00161)
                    District Judge: Honorable Donetta W. Ambrose
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  February 6, 2009

              Before: McKEE, JORDAN, and LOURIE*, Circuit Judges.

                               (Filed: February 11, 2009)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

_______________
        *Honorable Alan D. Lourie, Circuit Judge of the United States Court of Appeals
for the Federal Circuit sitting by designation.
LOURIE, Circuit Judge.

       John Patrick George appeals from the decision of the United States District Court

for the Western District of Pennsylvania denying George’s motions to suppress certain

evidence. United States v. George, Criminal No. 06-161, 2007 U.S. Dist. LEXIS 33068

(W.D. Pa. May 4, 2007) (“George I”); United States v. George, Criminal No. 06-161

(W.D. Pa. July 20, 2007) (“George II”). Because George has failed to show that the

District Court erred in its evidentiary decisions, we affirm.

                                   I. BACKGROUND

       George was stopped by Officer Hughes of the Mount Lebanon, Pennsylvania

Police Department on December 24, 2004. Hughes had previously been informed of a

report that a business was to be burglarized over the Christmas weekend and had been

given specific information about the prospective burglar’s truck, including its color,

make, model, and license number. Hughes was also told that the suspected burglar did

not have a valid Pennsylvania driver’s license.

       Hughes observed the truck described in the report and followed it. After the truck

made several turns, Hughes stopped the truck and told the driver and passenger that they

had been stopped for failing to properly use a turn signal. Hughes asked George for

identification, and he produced a Florida driver’s license, a Pennsylvania registration

card, and a Pennsylvania insurance card. George and his passenger were detained for

about thirty minutes while Hughes and other officers who had arrived at the scene

checked George’s identity. After telling George he was free to leave, Hughes asked to
look into the truck, and George consented. The officers found and seized binoculars, ski

masks, a notebook with businesses and social clubs noted, sledge hammers, chisels, metal

cutting blades, gloves, and ropes. George was then permitted to leave.

        On January 28, 2005, pursuant to 18 Pa. C.S.A. § 5761, Magistrate Judge John

Zottola authorized the installation and use of a mobile tracking device to track George’s

truck. With the mobile tracking device, on April 25, 2005, George was tracked to a

grocery store and arrested for burglary and other offenses. After George’s arrest, state

troopers went to George’s house and searched it upon obtaining his wife’s consent. The

troopers found and seized a receipt for a storage unit and applied for a warrant to search

the storage unit. Pursuant to the search warrant, the storage facility was searched on

April 26, 2005, and two weapons were seized, although neither weapon was mentioned in

the search warrant. George was indicted by a grand jury for possession of a firearm after

having been convicted of a crime punishable by a term of imprisonment in excess of one

year.

        George moved to suppress certain evidence, challenging, inter alia, the propriety

of a traffic stop and the search of his vehicle on December 24, 2004, the propriety of the

order dated January 28, 2005, which had authorized the use of a mobile tracking device,

and the search of the storage facility on April 28, 2005. The Court found the traffic stop

for a technical violation of the motor vehicle code (i.e., failing to use a turn signal) to be

legitimate, even if the stop was a pretext for an investigation of some other crime, citing

Whren v. United States, 517 U.S. 806 (1996), and United States v. Burks, 2007 WL
128005 (W.D. Pa. Jan. 11, 2007). George I, 2007 U.S. Dist. Lexis 33068, at *3. The

Court thus denied the motion with respect to the traffic stop. The Court also denied the

motion with respect to the warrantless search of George’s truck because it found credible

Hughes’ testimony that George had consented to the search, especially given a video of

the incident showing George opening both the vehicle door and the door to the cab of the

truck for the officers’ inspection. Id. The Court denied the motion with respect to the

seizure of items from the vehicle, as the items were clearly tools commonly used for theft,

and Hughes had had George’s consent and there was probable cause to believe the items

were instruments of crime. Id.

       The Court denied the motion with respect to the installation of the mobile tracking

device, stating that “[t]he statute authorizing the installation and use of a Mobile Tracking

Device is not constitutionally infirm. No search occurred and [George] had no legitimate

expectations of privacy with respect to the tracking device while driving his vehicle on

public roadways.” George II, Criminal No. 06-161, slip op. at 2.

       The Court finally denied the motion with respect to the search of the storage

facility, reasoning that “the search warrant[ was] entered into evidence and

demonstrate[d] clearly the existence of probable cause.” George I, 2007 U.S. Dist. Lexis

33068, at *4. According to the Court, “[t]he circumstances which occurred on December

24, 2004, along with the observations of April 23, 2005 and April 25, 2005 provided a

substantial basis for the issuance of the warrant[].” Id. The Court later clarified its

statement, saying that it had “never ruled that [George] lacked standing to contest the
search of storage unit,” but instead had “ruled that there was a substantial basis for the

magistrate’s determination of probable cause for the issuance of the search warrant.”

George II, Criminal No. 06-161, slip op. at 1.

       George was convicted and sentenced, and he timely appealed the final judgment.

We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                     II. DISCUSSION

       “We review the district court’s denial of [a] motion to suppress for clear error as to

underlying facts, but exercise plenary review as to its legality in light of the court’s

properly found facts.” United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003) (internal

quotation marks omitted). We review the issuance of a search warrant to see whether the

magistrate had a “substantial basis” for concluding that probable cause was present.

United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993).

       On appeal, George argues that the District Court erred in denying his suppression

motions, and that the judgment and sentence should therefore be vacated. George asserts

that the traffic stop was unlawful because it was pretextual and was effected only to allow

a greater intrusion. George also argues that his subsequent half-hour detention was

unreasonable because it was longer than necessary to issue a warning while he was not

free to leave, and that the search of his truck was nonconsensual, either because he did

not consent or because the traffic stop was coercive. Thus, according to George, the

seizure of items should have been suppressed as the fruit of an unlawful search. George

also argues that the state troopers lacked any cause or basis in their application for the
mobile tracking device, as they relied on a confidential informant without providing any

information on the informant’s reliability, and they lacked probable cause to obtain a

warrant to search George’s storage unit, as there was no evidence that the items listed

might be found in the storage unit. According to George, the seizure of the two handguns

should therefore also be suppressed as fruit of the unlawful search.

       The government responds that the traffic stop was not unlawful because the

District Court found that George turned without signaling, a determination that is entitled

to substantial deference, and even a pretextual stop is legitimate if it is based on a

violation of a traffic code. The stop was not unreasonably long, according to the

government, because the stop required extra time as circumstances unfolded, each

requiring further investigation. The government also argues that the officers searched

George’s car pursuant to his consent, and the District Court’s credibility finding to that

effect was not clearly erroneous, as the evidence showed George nodding his head in

consent and opening the doors to his truck. The application for the mobile tracking

device was sufficient, according to the government, because it relied not only on the tip

from the confidential informant, but also on the seized evidence from the traffic stop and

the fact that the circumstances corroborated the informant’s tip. Finally, the government

argues that the officers had probable cause to obtain a search warrant, as the magistrate

need only have reasonably inferred that George would store the fruits of his burglaries in

the storage unit, providing a nexus between the items listed and the storage unit.

       We agree with the government that the District Court permissibly denied George’s
motions to suppress. First, the traffic stop was not unlawful. A traffic stop is reasonable

as long as “an officer possessed specific, articulable facts that an individual was violating

a traffic law at the time of the stop.” United States v. Delfin-Colina, 464 F.3d 392, 398

(3d Cir. 2006). Thus, “any technical violation of a traffic code legitimizes a stop, even if

the stop is merely pretext for an investigation of some other crime.” United States v.

Mosley, 454 F.3d 249, 252 (3d Cir. 2006) (citing Whren, 517 U.S. 806). Here, the

District Court believed, after hearing evidence from both sides, that George had failed to

use his turn signal. The district court’s credibility determination was not clearly

erroneous, as George, when asked whether he had signaled for all of his turns,

equivocally stated: “I thought I did. I could have swore I did.” See Givan, 320 F.3d at

458 (reviewing factual determinations for clear error). Thus, George’s failure to use his

turn signal, even if a pretext rather than the actual motivation for the stop, rendered the

traffic stop lawful.

       Second, we agree with the government that the stop was not unreasonably long.

Most of the stop was spent waiting for an officer to go to the station to check whether

George was the same person as another John George whose Pennsylvania driver’s license

had been suspended. The stop ended when, after about thirty minutes, the officer

returned with a picture of the other John George, and George was given his license and

told he was free to leave. See id. (recognizing that traffic stop ends and consensual

encounter begins once motorist’s documents are returned to him and he is told that he is

free to leave). The similarity of the two names (both John George, with different middle
initials) gave the officers reasonable suspicion that George may have been driving with a

suspended license, justifying his detention until his identity was verified. The verification

did not take unreasonably long, as the officers did not have an on-board computer system

that would allow them to access photographs or descriptive information with which to

verify George’s identity and thus had to leave the site to obtain verification. Third, the

search of George’s car was also justified, as the District Court was not clearly erroneous

in finding that George voluntarily consented to the search, relying on the video of the

incident that showed George voluntarily opening the doors of his truck to allow the

search.

       Finally, we agree with the government that the two warrants, for installing a

mobile tracking device and for searching the storage unit, were supported by probable

cause. In applying to install the mobile tracking device, the trooper set forth the content

of the informer’s tip and explained how that information had been corroborated by the

events of December 24, 2004, including the traffic stop itself, statements made by George

during the traffic stop, and seizure of the tools. (App. 86-89.) The affidavit also set forth

George’s criminal record, along with that of his passenger. (App. 89-92.) Thus, the

affidavit did not rely solely on a tip from a confidential informant but contained

corroborating evidence.

       George argues that, in the application for a warrant to search his storage unit, there

was no evidence that the items listed might be found in the storage unit. However, the

magistrate issuing the warrant had a “minimum substantial basis” to conclude that the
items might be found in the storage unit. Conley, 4 F.3d at 1205. In his affidavit, the

trooper explained that the search of George’s home netted a receipt showing that George

was actively renting the storage unit. (App. 123.) The trooper also described the earlier

traffic stop and George’s criminal record (App. 114-16), leading to a reasonable inference

that George might have the listed stolen goods and tools that might be used for burglary.

Given that the trooper had not found the items in George’s home, the magistrate had a

minimum substantial basis to conclude that they might be found in the storage unit he was

actively renting. See United States v. Whitner, 219 F.3d 289, 296-97 (3d Cir. 2000) (“The

issuing judge or magistrate . . . is entitled to draw reasonable inferences about where

evidence is likely to be kept, based on the nature of the evidence and the type of offense,”

including “normal inferences about where a criminal might hide stolen property.”). We

therefore agree with the government that the search warrant was supported by probable

cause.

                                    III. CONCLUSION

         For the foregoing reasons, we will affirm the District Court’s denial of George’s

motions to suppress evidence.
