                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0608n.06

                                      Nos. 08-3951, 08-3952
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS                            Aug 26, 2009
                               FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
JEFFREY WICKERSHAM,                              )    SOUTHERN DISTRICT OF OHIO
                                                 )
       Defendant-Appellant.                      )




       Before: KEITH, SUTTON and WHITE, Circuit Judges.


       SUTTON, Circuit Judge. Jeffrey Wickersham challenges his drug-trafficking conviction,

arguing that the district court should have suppressed cocaine seized from his car as the fruit of an

illegal stop and search. We affirm.


                                                 I.


       On the evening of January 30, 2007, Trooper Nicholas Johnson of the Ohio State Highway

Patrol received a tip about a pending drug sale. The informant told Johnson that he had seen

Wickersham and a woman leave Wickersham’s home in Meigs County to buy cocaine in Columbus.

He said Wickersham was driving a white Pontiac Grand Prix and gave him some of the characters

from the license plate.
Nos. 08-3951, 08-3952
United States v. Wickersham

        Accompanied by his drug-sniffing dog, Snoopy, Trooper Johnson drove to a spot on Route

33 in Athens County where he expected to see Wickersham returning from Columbus. As

Wickersham drove by, Johnson was attending to another vehicle, so he told fellow Trooper Michael

Jordan “to see if he could get the vehicle stopped.” Tr. 74. Jordan caught up with Wickersham and

radioed Johnson asking whether there was already probable cause to stop his car. After receiving

no answer from Johnson, Jordan told himself, “okay . . . if you’re not going to answer me, I’m not

going to just stop this car. I’ll find a reason to stop it.” Tr. 27.


        Soon afterwards, Jordan observed Wickersham cross the center line twice, and he activated

his lights to stop Wickersham. When Jordan approached the car and asked Wickersham why he had

drifted left of center, Wickersham replied that he was “watching” Jordan, because Jordan “had that

white Pontiac pulled over” and Wickersham “figured [Jordan was] looking for white Pontiacs.” Tr.

9.


        Trooper Johnson soon arrived. When he walked Snoopy around Wickersham’s car, she sat

down in front of the trunk, which indicated that she smelled the odor of drugs. Johnson took

Wickersham and a passenger, Elizabeth Saber, out of the car, patted them down, advised them of

their Miranda rights and locked them in the back of Jordan’s cruiser.


        Trooper Johnson searched Wickersham’s car, and in the trunk he found a flashlight and a

locked suitcase he was unable to open. Under the hood, he found a piece of vinyl siding that

appeared to form a small compartment behind the battery, which he also was unable to open.


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United States v. Wickersham

Johnson spoke separately to Saber, who told him that she and Wickersham had been out to dinner,

but she could not remember in what restaurant or in which city.


       About an hour after the initial stop, a truck arrived to take the car to the nearest patrol station,

roughly fifteen minutes away. The troopers drove Wickersham and Saber to the post. Johnson

conducted a more thorough search of the car inside the post’s lighted and heated garage and

eventually discovered about 103 grams of crack cocaine and 14 grams of powder cocaine hidden in

the flashlight in Wickersham’s trunk. The officers arrested Wickersham, and he was indicted for

possession with intent to distribute more than fifty grams of cocaine base. See 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A)(iii).


       Wickersham moved to suppress the cocaine as the fruit of an unlawful stop and search. After

hearing the testimony of Troopers Jordan and Johnson and viewing the video footage from their

cruisers, the district court denied his motion. Wickersham pleaded guilty to the cocaine charge and

to one counting of failing to appear, see 18 U.S.C. § 3146(a)(1), but preserved the right to appeal the

denial of his suppression motion. He was sentenced to 76 months on the drug offense plus 12

consecutive months for failing to appear.




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United States v. Wickersham

                                                  II.


                                                  A.


       On appeal, Wickersham first challenges the district court’s conclusion that the officer

permissibly stopped his car, claiming that the officer did not have probable cause that he had violated

the law at the time of the stop. See United States v. Canipe, 569 F.3d 597, 601 (6th Cir. 2009). Both

sides agree that if Trooper Jordan saw Wickersham swerve left of the lane line without interference

or other excuse, then Jordan had probable cause to pull him over. See id. That leaves us with a

question of fact: Did the district court correctly find that Wickersham crossed the center line before

Jordan stopped him? We review this finding for clear error, id. at 600, “consider[ing] the evidence

in the light most favorable to the government,” United States v. Moncivais, 401 F.3d 751, 754 (6th

Cir. 2005).


       Wickersham claims that he never crossed the lane line and contends that Trooper Jordan

made up the story as a pretext for pulling him over. Acknowledging that the state of mind of an

arresting officer is not relevant to a Fourth Amendment claim if probable cause otherwise supports

the stop, see Whren v. United States, 517 U.S. 806, 813 (1996), Wickersham argues that the

pretextual nature of the stop nonetheless casts doubt on whether he committed the traffic violation.

In support, he notes that Jordan was ordered to stop Wickersham’s car, that Jordan admitted he

planned to “find a reason to stop” Wickersham, Tr. 27, that Jordan shut off his camera shortly before




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United States v. Wickersham

seeing the violations, which made it harder to challenge his testimony, and that the odds are slim

that, within one minute of pulling up behind Wickersham, Jordan would catch him violating the law.


        The key problem with these arguments, however, is that a potential motive to fabricate does

not make Trooper Jordan’s testimony a fabrication. The district court considered these same points

and found Jordan credible, a finding to which we owe “considerable deference,” in part because we

are not in a position to judge the credibility of Jordan’s testimony for ourselves. United States v.

McCauley, 548 F.3d 440, 447 (6th Cir. 2008) (internal quotation marks omitted). Wickersham

attempts to cast Jordan’s questions about whether he had probable cause and his later remark—“I’m

not going to just stop this car. I’ll find a reason to stop it,” Tr. 27—in a sinister light, suggesting that

they show the trooper manufactured a violation. But that is just one way to construe the remarks;

it is hardly the only way. It is just as plausible to construe the remarks as demonstrating that Jordan

indeed wanted to stop Wickersham but insisted on doing so only after he saw him commit a traffic

violation, which is precisely what the Fourth Amendment permits. See Whren, 517 U.S. at 813.


        No doubt, Jordan would have been well advised to keep his video camera on during the

whole pursuit. But he still appeared to comply with the state law rules on point, see OSHP Policy

OSP-200.06(F)(1), which require activating the camera when an officer “observes an indicator of

possible traffic violation,” ROA 81, and he did exactly that shortly after observing the left-of-center

violations. On this record, we have no basis to infer dishonesty merely from his failure to record the

violations.



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United States v. Wickersham

       Finally, the immediacy of the violation—so soon after Jordan pulled up behind

Wickersham—says less about the improbability of its occurrence than about how little Whren

requires before law enforcement officers may make a stop. Nothing in the end establishes that the

district court clearly erred in believing Trooper Jordan.


       Wickersham argues in the alternative that, even if he did cross the yellow line, he did so only

because Trooper Jordan’s high-speed approach distracted him.           Jordan drove “under heavy

acceleration” to catch Wickersham, he explains, then slowed to 55 miles per hour, ending up just two

car lengths behind him, Tr. 22, 28–30, making it hard for Wickersham to focus on the road.

Wickersham gave Jordan a similar explanation after being pulled over, though at that time he said

he was less distracted by Jordan’s sudden approach and more distracted by a fear that Jordan was

looking to stop white Pontiacs like his.


       In either form, this argument is unavailing. The district court considered these same points

and found there was “no evidence, only conjecture and supposition from Defendant, that Trooper

Jordan’s actions caused Defendant to commit the left of center violations.” ROA 215. State law

requires drivers to follow at a reasonable distance, Ohio Rev. Code § 4511.34(A), and state policy

requires the highway patrol to drive within the speed limit in non-emergency situations, OSHP

Policy OSP-200.06(B)(3), (C), but neither requirement factors into the federal constitutional inquiry,

see Virginia v. Moore, 128 S. Ct. 1598, 1604–05 (2008). The evidence might well have supported

a finding that Jordan caused Wickersham’s violation, but it does not require such a finding, making

it unnecessary to decide how and when an officer-created violation would invalidate a stop. Cf.

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United States v. Wickersham

Goddard v. Kelley, No. 70-10705, __ F. Supp. 2d __, 2009 WL 1867862, at *7 (D. Mass. Mar. 31,

2009) (finding arrest unreasonable where officers held someone on private property, then arrested

him for trespassing there).


                                                  B.


       Wickersham next challenges the reasonableness of the troopers’ search of his car and its

containers. Under the Fourth Amendment, police officers need probable cause to search a car or

containers within it. California v. Acevedo, 500 U.S. 565, 579–80 (1991). We review the historical

facts for plain error and give fresh review to the probable-cause determination. See Ornelas v.

United States, 517 U.S. 690, 696–97 (1996).


       The first question is a factual one: What exactly did Snoopy signal? The district court found,

and Wickersham did not challenge below, that, after Snoopy walked around the car, she indicated

the presence of a drug odor by sitting down in front of the trunk. On appeal, however, Wickersham

suggests that Johnson may have told Snoopy to sit down, or may have primed her to sit in that spot

by pushing down her backside before he walked her around the car. The video does not support

either theory, see Jordan Video 22:36:02–37:20, nor is there any other evidence to support this

argument even if it had been preserved below.


       Turning to the law: To determine whether a particular set of facts gives rise to probable

cause to arrest or search, we look to the totality of the circumstances. See Illinois v. Gates, 462 U.S.

213, 232 (1983). Generally speaking, “a positive indication by a properly-trained dog is sufficient

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United States v. Wickersham

to establish probable cause for the presence of a controlled substance.” United States v. Torres-

Ramos, 536 F.3d 542, 554 (6th Cir. 2008).


       Probable cause existed here. No one disputes that Johnson and Snoopy were well trained in

their respective roles of dog-handler and drug-sniffer. And Snoopy, as we have shown, indicated

the presence of a drug odor when she walked around the car. Adding weight to the probable cause

determination is the tip Trooper Johnson received from the confidential informant.


       Contrary to Wickersham’s contention, the officers’ probable cause did not “dissipate” after

Trooper Johnson failed to find drugs during the initial search. Granting that at some point an

unfruitful search might dissolve probable cause, this is not such a case. Given that it was January,

around 11:00 PM, and “very cold [and] windy” outside, Tr. 19, the officers did not act unreasonably

in giving up after an hour (much of which was spent talking with Wickersham and Saber rather than

searching) and in towing the car to the (warm) station to continue the search there. See United States

v. Ross, 456 U.S. 798, 825 (1982) (upholding warrantless search of car and its contents that began

on the street and was continued at police station); id. at 821 n.28 (“The practical considerations that

justify a warrantless search of an automobile continue to apply until the entire search of the

automobile and its contents has been completed.”).


       Even if the initial probable cause could have started to wilt at some point, new facts

preserved it here. In addition to Snoopy’s signal and the informant’s tip, Trooper Johnson also

discovered the suspicious modifications to the front of the car, and witnessed Saber’s suspicious


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United States v. Wickersham

inability to remember their supposed dinner destination, see Johnson Video 23:01:31–06:08, all of

which kept the evidence of probable cause fresh. See United States v. Kincaide, 145 F.3d 771, 779

(6th Cir. 1998) (secret compartment in vehicle undercarriage supported probable cause); United

States v. Repress, 9 F.3d 483, 488 (6th Cir. 1993) (“contradictory statements” and “suspicious

behavior” supported probable cause).


       Our conclusion comports with United States v. Davis, 430 F.3d 345 (6th Cir. 2005) and

United States v. Heath, 259 F.3d 522 (6th Cir. 2001), both of which addressed seizures based on

reasonable suspicion, not probable cause. Davis found that a long wait was unreasonable after a

drug-sniffing dog failed to indicate the presence of drug odor and the police spent an hour waiting

for another dog. 430 F.3d at 357. In this case, by contrast, Snoopy indicated drug odor on the first

pass. Similarly, Heath held that the police could not continue to hold someone on reasonable

suspicion alone after a search turned up nothing, 259 F.3d at 530–31, but placed no limits on officers

who already have probable cause.


       Nor is there anything to Wickersham’s argument that Snoopy’s failure to signal during a

second pass around the car shows that probable cause had meaningfully dissipated. Although the

parties stipulated at trial that Snoopy alerted during a second trip around the car, the government now

concedes that the stipulation turned on a misunderstanding and that the video demonstrates that

Snoopy in fact did not alert at the trunk during the second trip around the car, see Johnson Video

23:16:57–23:17:15, and may not have alerted at all during that trip. But given the first signal, the




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United States v. Wickersham

informant’s tip, the reconfigured component in the car and Saber’s suspicious answers to the

officer’s questions, probable cause existed throughout the encounter.


                                               III.


       For these reasons, we affirm.




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