           Case: 15-13550    Date Filed: 05/18/2016   Page: 1 of 9


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 15-13550
                          Non-Argument Calendar
                        ________________________

               D.C. Docket No. 6:15-cr-00025-ACC-KRS-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                     versus

KEVIN DIPIRRO,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________

                               (May 18, 2016)

Before WILLIAM PRYOR, JULIE CARNES, and FAY Circuit Judges.

PER CURIAM:
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       Following a bench trial, Defendant Kevin Dipirro was found guilty of being

a felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1). The firearm

was found after Defendant was pulled over for a violation of Florida Statute

§ 316.410 (not having a tail lamp illuminating the rear registration plate of his

motorcycle). Prior to trial, Defendant moved to suppress the evidence found

during the traffic stop, on the grounds that the statute was void-for-vagueness and

that the officer lacked probable cause1 for the traffic stop. After Defendant

proffered the testimony of an expert, the Government moved to exclude the

expert’s testimony. The district court granted the Government’s motion, and later

denied Defendant’s motion to suppress. On appeal, Defendant asserts that,

because the expert would have directly undermined the credibility of the arresting

officer, the district court abused its discretion by excluding the expert’s testimony.

After careful review, we affirm.

I. BACKGROUND

       On an evening in November 2014, Trooper Mitchell Henderson of the

Florida Highway Patrol initiated a traffic stop of three motorcyclists, including one

operated by Defendant, because the motorcycles did not have visible lights



1
   Though Defendant only references probable cause, we note that a traffic stop is “constitutional
if it is either based upon probable cause to believe a traffic violation has occurred or justified by
reasonable suspicion in accordance with” Terry v. Ohio, 392 U.S. 1 (1968). See United States v.
Harris, 526 F.3d 1334, 1337 (11th Cir. 2008).


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illuminating their registration plates, in violation of Florida Statute § 316.410. 2

Trooper Henderson obtained Defendant’s identification and later learned that he

had a suspended driver’s license and an active state warrant for his arrest.

Defendant was placed under arrest, and admitted that he was in possession of a

firearm. Law enforcement located a pistol containing six rounds of ammunition in

Defendant’s boot. Defendant later admitted that he was a convicted felon. A

federal grand jury subsequently issued an indictment charging Defendant with

being a felon in possession of a firearm, in violation of §§ 922(g)(1), 924(a)(2).

       Defendant moved to suppress the evidence obtained during the traffic stop.

He first argued that Florida Statute § 316.410, which provides in relevant part that

a tail lamp “shall be so constructed and placed as to illuminate with a white light

the rear registration plate and render it clearly legible from a distance of 50 feet to

the rear,” was void-for-vagueness because it left too much discretion to the officer

regarding the meaning of “clearly legible.” See Fla. Stat. § 316.410(2). Relying

on a study from the University of Iowa, Defendant asserted that a motorcycle

license plate was likely not legible from a distance of 50 feet. Finally, he argued

that Trooper Henderson lacked probable cause to believe a traffic violation had



2
  The facts related to the initiation of the traffic stop are taken from the testimony at the
suppression hearing, viewed in the light most favorable to the party that prevailed in that
proceeding, which here is the Government. See United States v. Bautista-Silva, 567 F.3d 1266,
1271 (11th Cir. 2009); United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir. 2008). The facts
related to the discovery of the firearm come from facts the parties stipulated to at the bench trial.
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occurred because Defendant could establish that his tail lamp was illuminating his

registration plate.

      The Government subsequently filed a motion to exclude Defendant’s

proffered expert, Dr. Charles Johnson of the University of Iowa. Defendant

proffered that the expert would testify that “only an extremely small percentage of

humans would have the visual acuity/ability to read the alpha-numeric symbols on

a Florida License plate at a distance of 50 feet to the rear at night.” The

Government asserted that this proposed testimony was not relevant to Defendant’s

vagueness argument. Moreover, the fact that a “small percentage of humans”

could read the license plate at night from a distance of 50 feet undermined

Defendant’s argument that the license plate would not be legible under such

circumstances. Given that Defendant’s proffered expert would testify that a

motorcycle license plate would be legible to some individuals, he could not show

that § 316.410 was “grossly and flagrantly unconstitutional,” and thus he was not

entitled to suppression of the evidence on his vagueness challenge.

      Defendant responded that the expert’s testimony regarding the near

impossibility of an illuminated Florida license plate being clearly legible at night

from 50 feet away was relevant to whether § 316.410 was “grossly and flagrantly

unconstitutional.” He also maintained that the expert’s testimony was relevant

because this patent flaw went to the very essence of Trooper Henderson’s reliance


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on § 316.410’s clearly legible standard for asserting probable cause to believe a

traffic violation had occurred.

      The district court granted the Government’s motion to exclude the expert

testimony, concluding that it would not decide the constitutionality issue because

the exclusionary rule does not apply when an officer obtains evidence pursuant to a

statute that is later found to be unconstitutional. To the extent Defendant also

sought to argue that the statute was grossly and flagrantly unconstitutional, the

district court rejected this argument because it was not presented in Defendant’s

initial motion to suppress and Defendant was not permitted to amend his

suppression motion by way of a response to the Government’s motion to exclude.

      Defendant moved for reconsideration, and the district court denied his

request. Following a suppression hearing, the district court denied Defendant’s

motion to suppress. Of relevance, the district court found Trooper Henderson’s

version of events credible and ultimately determined that he had probable cause to

believe that a traffic violation had occurred. Defendant waived his right to a jury

trial, and was found guilty at a bench trial based on facts stipulated to by the

parties. This appeal followed.

II. DISCUSSION

      When reviewing the denial of a motion to suppress, we review the district

court’s legal conclusions de novo, and its findings of fact for clear error. United


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States v. Hollis, 780 F.3d 1064, 1068 (11th Cir. 2015). We review the district

court’s decision to exclude expert testimony for abuse of discretion. Id. However,

we review an argument raised for the first time on appeal for plain error. United

States v. Johnson, 777 F.3d 1270, 1274 (11th Cir. 2015).

      The Federal Rules of Evidence do not apply with full force at suppression

hearings. Fed. R. Evid. 104(a), 1101(d); see also United States v. Matlock, 415

U.S. 164, 175 (1974). The Supreme Court has further explained that in

proceedings where the district court is considering the admissibility of evidence, it

should receive the evidence and give it such weight as the court’s experience and

judgment counsel. Matlock, 415 U.S. at 175.

      Defendant argues on appeal that the district court abused its discretion by

excluding the expert testimony because it would have directly undermined Trooper

Henderson’s credibility as to whether he had probable cause to believe a traffic

violation had occurred. The Government asserts that we should review this

argument for plain error because Defendant never offered the expert’s testimony

for the purpose of undermining Trooper Henderson’s credibility, but had instead

offered the expert’s testimony to call into question the constitutionality of

§ 316.410. In his response to the Government’s motion to exclude, Defendant

asserted that the expert’s testimony—regarding the near impossibility that an

illuminated Florida motorcycle license plate would be clearly legible at night from


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a distance of 50 feet—was relevant to the issue of whether § 316.410 is “grossly

and flagrantly unconstitutional.” 3 However, Defendant also stated that the expert’s

testimony was relevant to determining whether Trooper Henderson had probable

cause to believe a traffic violation had occurred. Indeed, Defendant asserted at the

suppression hearing that he was prejudiced by the exclusion of the expert because

the expert’s testimony would have enabled him to call into question the officer’s

credibility. Though Defendant could have more artfully articulated that the

expert’s testimony would be relevant to evaluating Trooper Henderson’s

credibility, we need not determine whether Defendant sufficiently raised this

argument because Defendant cannot prevail regardless of whether this argument is

reviewed for plain error or abuse of discretion.

       Trooper Henderson issued a citation to Defendant for violating § 316.410

because his motorcycle did not have a white light illuminating the registration

plate.4 He also testified that he initiated a traffic stop of Defendant and the other

motorcyclists because none of them had visible white lights on their registration


3
 Both the Government and the district court addressed the expert’s proffered testimony solely
with respect to Defendant’s constitutional argument.
4
   Though neither of the parties mention it, we note that Trooper Henderson testified that
Defendant violated § 416.310(2) because his motorcycle did not have a white light on the
registration tag, so that he could read it, but the actual citation says that Defendant violated
§ 316.410(1) for “MOTORCYCLE TAILLAMPS – NO/IMPROPER, IMPROPER TAIL LAMP
NO WHITE LIGHT UNABLE TO SEE TAG.” While there is some discrepancy as to the correct
subsection of the statute, Trooper Henderson’s reason for initiating the stop is the same: no white
light, so he could not see the tag.
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plates and he told Defendant he was being stopped because his tail lamp did not

have an illuminated white light, so Trooper Henderson could not read the plate.

Thus, Defendant would have violated the statute by not having a light, regardless

of whether Trooper Henderson could see or not see the registration plate from a

distance of 50 feet away at night. See Fla. Stat. § 316.410 (“(1) Every

motorcycle . . . shall have at least one taillamp. . . . (2) Either a taillamp or a

separate lamp shall be so constructed and placed as to illuminate with a white light

the rear registration plate and render it clearly legible from a distance of 50 feet to

the rear.”).

       Moreover, Defendant proffered that the expert would testify that a Florida

motorcycle license plate “would not be legible at night when illuminated with a

white light at a distance of 50 feet to the rear for any human except fighter pilots

who are known to possess a visual anomaly which enable them to see at night in

ways that other humans cannot.” This testimony, however, would have had no

bearing on Trooper’s Henderson’s reason for initiating the traffic stop, or whether

Defendant’s motorcycle had a white light in the first place. See Matlock, 415 U.S.

at 175; cf. United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985) (“Expert

testimony not relevant to any issue in the case and which would not assist the jury

had to be excluded.”). Because the expert’s testimony was not relevant to

assessing Trooper Henderson’s credibility, the district court did not abuse its


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discretion by excluding it. See United States v. Cross, 928 F.2d 1030, 1049 (11th

Cir. 1991) (“A trial court has wide discretion in determining whether the exclude

expert testimony, and its action will be sustained on appeal unless ‘manifestly

erroneous.’”).

      AFFIRMED.




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