                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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