                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 07-3094
                                     ___________

United States of America,                 *
                                          *
      Appellee,                           *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Nebraska.
Robert Roosevelt Houston,                 *
                                          *
      Appellant.                          *
                                     ___________

                              Submitted: April 18, 2008
                                 Filed: December 5, 2008
                                  ___________

Before LOKEN, Chief Judge, JOHN R. GIBSON, and MELLOY, Circuit Judges.
                              ___________

JOHN R. GIBSON, Circuit Judge.

       Robert Roosevelt Houston entered a conditional plea of guilty to possession
with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1) after
the district court1 denied his motion to suppress evidence obtained following a traffic
stop. He appeals the district court’s denial of the motion to suppress. We affirm.




      1
       The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska, adopting the report and recommendation of the Honorable Thomas D.
Thalken, United States Magistrate Judge for the District of Nebraska.
                                            I.
       Officer Daniel Martin of the Omaha Police Department was on patrol when he
observed a Cadillac run a red light at the intersection of 30th and Bedford Streets. As
Officer Martin approached the intersection traveling southbound, his light changed
from red to green while the Cadillac was still moving westbound through the
intersection. Martin turned on his lights and siren and called in the traffic stop to
dispatch, but did not request backup. The Cadillac traveled another couple of blocks
before stopping. Martin walked to the driver’s side of the car and asked the driver,
Robert Houston, for his license and registration. Officer Martin testified that he could
smell a strong odor of marijuana coming from the vehicle, and he asked Houston why
the vehicle smelled like marijuana. Houston responded that he had just finished
smoking a joint. Officer Martin requested permission to search the vehicle and
Houston agreed. Officer Martin then asked Houston to get out of the car so he could
be patted down, and when he did so, Officer Martin placed him in handcuffs. Martin
explained to Houston that he was not under arrest at this point, but was simply
handcuffed for officer safety during the pat down. However, Officer Martin testified
that Houston was not free to leave.

      Officer Hasiak heard Officer Martin radio in a traffic stop and arrived as
Houston was being handcuffed. Officer Hasiak took Houston’s information back to
Martin’s cruiser to do a data check. Officer Martin then started to pat down Houston
for weapons. During the pat down, Houston, with his hands cuffed behind his back,
turned around and took off running. Officers Martin and Hasiak were able to quickly
apprehend him. The officers then searched Houston and found crack cocaine in the
waist band of his pants.

       Houston argues that (1) the stop of his vehicle was not supported by reasonable
suspicion of criminal activity or probable cause that a traffic violation had occurred;
(2) his detention immediately following the traffic stop constituted an arrest and was



                                          -2-
not supported by probable cause; and (3) the government willfully failed to preserve
video evidence of the traffic stop in violation of his due process rights.

                                          II.
       Houston asserts that the stop of his vehicle was not supported by reasonable
suspicion or probable cause. In support of this argument, Houston points to testimony
of Officer Martin in which he was unable to rule out several hypothetical justifications
for why Houston may have been in the intersection after the light change. “In the
context of suppression motions, we review the district court’s factual findings for
clear error and its legal determinations de novo.” United States v. Kelly, 329 F.3d
624, 628 (8th Cir. 2003). We will affirm a denial of the motion “unless it is
unsupported by substantial evidence, based on an erroneous interpretation of
applicable law, or based on the entire record, it is clear a mistake was made.” United
States v. Hogan, 539 F.3d 916, 921 (8th Cir. 2008).

       A traffic stop is a seizure within the meaning of the Fourth Amendment and, as
such, must be supported by reasonable suspicion or probable cause. United States v.
Jones, 269 F.3d 919, 924 (8th Cir. 2001) (citing Delaware v. Prouse, 440 U.S. 648,
653 (1979)). A law enforcement officer has reasonable suspicion when the officer is
aware of “particularized, objective facts which, taken together with rational inferences
from those facts, reasonably warrant suspicion that a crime is being committed.”
United States v. Martin, 706 F.2d 263, 265 (8th Cir. 1983). The more rigorous
standard of probable cause exists when the totality of the circumstances justifies the
belief that a crime has been committed and the person being seized committed it. In
the context of a traffic stop, “[a]ny traffic violation, however minor, provides probable
cause.” United States v. Martinez, 358 F.3d 1005, 1009 (8th Cir. 2004).

      In this case, the district court found credible Officer Martin’s testimony that he
saw Houston run a red light. Both Officers Martin and Hasiak testified that Martin
informed dispatch he was initiating a traffic stop at the intersection of 30th and

                                          -3-
Bedford, and that the traffic stop was based on a red light violation. These findings
were supported by the record and no evidence was introduced to the contrary.
Although Officer Martin may not have been able to rule out all possible causes for
why Houston may have been in the intersection, he is not required to do so. Probable
cause is determined from a totality of the circumstances; and in this case Officer
Martin did not indicate that he had any reason to believe Houston was in the
intersection other than due to a traffic violation. Based on these facts, Officer Martin
had probable cause to stop Houston for traveling through a red light in violation of
Neb. Rev. Stat. § 60-667. Accordingly, the district court did not err in denying the
motion to suppress.

                                           III.
       Next, Houston argues that the district court should have granted his motion to
suppress because his detention following the traffic stop constituted a warrantless
arrest and was not supported by probable cause. Houston points to testimony of
Officer Martin stating that Houston was not free to leave at the time he was placed in
handcuffs. Officer Martin, however, testified that Houston was not formally under
arrest during the original pat down search. We need not determine whether Officer
Martin’s use of restraints rose to the level of a formal arrest because, even assuming
an arrest occurred, Officer Martin had probable cause to arrest Houston for driving
under the influence.

       “To justify a warrantless arrest, probable cause must exist.” United States v.
Adams, 346 F.3d 1165, 1169 (8th Cir. 2003). Probable cause is determined from “the
totality of the circumstances as set forth in the information available to the arresting
officers at the time of the arrest.” Id. (quoting United States v. Kelly, 329 F.3d 624,
628 (8th Cir. 2003)). A warrantless arrest complies with the Fourth Amendment
“when the available facts and circumstances are sufficient to warrant a person of
reasonable caution to believe that an offense was being or had been committed by the
person to be arrested.” Adams, 346 F.3d at 1169.

                                          -4-
       Here, the district court found that Officer Martin saw Houston run a red light
and that Houston failed to pull over for several blocks after Officer Martin signaled
him to stop. After approaching Houston’s vehicle, Officer Martin smelled a strong
odor of marijuana and questioned Houston about the odor. Houston admitted to
having just smoked a joint. These facts are supported by the record and we cannot say
that the district court clearly erred in making these findings.

        After Officer Martin observed Houston commit a traffic violation and smelled
marijuana coming from Houston’s car, he had reasonable suspicion to investigate
whether Houston was driving under the influence. See United States v Gipp, 147 F.3d
680, 685 (8th Cir. 1998) (finding reasonable suspicion to investigate further when
police officer smelled odor of marijuana coming from defendant’s car). Officer Martin
asked Houston about the smell and Houston admitted to having just smoked a joint.
At that point, Officer Martin had probable cause to arrest Houston for driving under
the influence of a controlled substance. See United States v. Barry, 98 F.3d 373, 376-
77 (8th Cir. 1996) (finding probable cause when officer observed defendant driving
erratically and defendant admitted to consuming alcohol).

        Nonetheless, Houston argues that Officer Martin never intended to arrest him
for driving under the influence and did not follow his routine practices concerning DUI
arrests. Officer Martin’s routine investigatory practices, however, were irrelevant
because Houston admitted to being under the influence of marijuana. Further, Officer
Martin’s subjective intent is immaterial because the defendant was formally arrested
prior to the completion of the traffic stop and objective probable cause existed for the
arrest. See United States v. Chauncey, 420 F.3d 864, 871-72 (8th Cir. 2005); see also
United States v. Rambo, 789 F.2d 1289, 1294 (8th Cir. 1986) (holding that officer’s
subjective intent is “immaterial” where the offenses are closely related and probable
cause exists). The fact that Houston was ultimately charged with possession, as
opposed to DUI, does not impact the lawfulness of the arrest.


                                          -5-
        Accordingly, Officer Martin’s pat-down search of Houston was justified as a
search incident to a lawful arrest, and therefore the cocaine recovered during the search
is admissible. See United States v. Adams, 346 F.3d 1165, 1170 (8th Cir. 2003)
(“Because the officers had sufficient probable cause to arrest [the defendant] without
a warrant, it follows that the contraband seized from the pat-down search incident to
his arrest is admissible.”). The district court did not err in denying Houston’s motion
to suppress evidence obtained from the traffic stop.


                                          IV.
       Finally, Houston claims that the district court erred in ruling that the
government’s allegedly willful failure to preserve video evidence of the traffic stop did
not violate his due process rights. Houston also argues that even if the failure to
preserve the video did not rise to the level of a due process violation, it nonetheless
should support an adverse credibility finding against the government.

      Due process is violated when the government “suppresses or fails to disclose
material exculpatory evidence.” Illinois v. Fisher, 540 U.S. 544, 547 (2004) (per
curiam) (citing Brady v. Maryland, 373 U.S. 83 (1963)). If, however, the evidence
in question is only potentially useful, as opposed to clearly exculpatory, then a
criminal defendant must prove bad faith on the part of the police to make out a due
process violation. See Arizona v. Youngblood, 488 U.S. 51, 57 (1988).

      Here, Houston argues that the arresting officers acted in bad faith because they
did not attempt to download video of the traffic stop. Even assuming the video was
potentially useful to the defense, Houston has failed to demonstrate bad faith. Both
Officer Martin and Officer Hasiak testified that they were not trained on how to
download video evidence and were not instructed to do so as a matter of routine. The
evidence custodian’s testimony was not in conflict with that of the officers. The
custodian stated that the officer assigned to a case usually brings the video to the

                                           -6-
evidence room in cases where video evidence has been preserved. This testimony
does not speak to the issue of when an officer is obligated to preserve the video in the
first place, and Houston presented no evidence on this point.

       Although it may have been preferable for the officers to have downloaded the
video, Houston has not demonstrated that their failure to do so was in bad faith. At
best, Houston’s arguments show negligence on the part of the officers, and negligence
does not amount to bad faith. United States v. Iron Eyes, 367 F.3d 781, 786-87 (8th
Cir. 2004). The district court correctly concluded that Houston’s due process rights
were not violated by the officers' failure to preserve the video. See Youngblood, 488
U.S. at 57-58. Likewise, the record is insufficient to support an inference that the
government acted improperly in failing to preserve the video and therefore the district
court did not err in denying Houston’s request to have all credibility issues resolved
in his favor. See Iron Eyes, 367 F.3d at 787.

                                       V.
      We affirm the judgment of the district court.




                                          -7-
