                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4320


UNITED STATES OF AMERICA,

             Plaintiff – Appellee,

      v.

STEVEN SCOTT NESTOR,

             Defendant – Appellant.


Appeal from the United States District Court for the Northern District of West Virginia,
at Clarksburg. Irene M. Keeley, Senior District Judge. (1:17-cr-00043-IMK-MJA-1)


Submitted: August 31, 2018                                 Decided: September 27, 2018


Before WILKINSON and FLOYD, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Katy J. Cimino, Kristen M. Leddy, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Clarksburg, West Virginia, for Appellant. Traci M. Cook, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Indicted for illegal firearm possession, see 18 U.S.C. § 922(g)(1), Steven Scott

Nestor moved to suppress the firearm and other contraband, arguing that the items were

illegally seized during an investigatory stop that was both unsupported by reasonable

suspicion and unreasonably extended to permit a vehicular dog sniff. In a 35-page written

order, the district court denied the motion. United States v. Nestor, 2018 Westlaw 447618

(N.D. W.Va. Jan. 17, 2018) (J.A. 166-201). Nestor then conditionally pled guilty to the

charged offense and was sentenced to a 70-month imprisonment term. Consistent with his

conditional plea, Nestor now reiterates his arguments and contends that the court erred by

denying his suppression motion. We affirm.

                                             I

       During the suppression hearing, the government presented several exhibits and the

testimony of West Virginia Division of Natural Resources (“DNR”) Officer Benjamin

Riley. 1 Nestor’s counsel cross-examined Officer Riley, but Nestor did not testify or

present any evidence. See J.A. 103, 168. As the district court later noted in its order

denying the suppression motion, Nestor did not challenge the veracity of Officer Riley’s

testimony and did not appear to seriously dispute the underlying facts. See J.A. 168. 2


       1
          The suppression motion was initially referred to a magistrate judge, who
conducted the evidentiary hearing and recommended that the motion be denied, albeit on
slightly different grounds. See United States v. Nestor, 2017 Westlaw 9517166 (N.D.
W.Va. Dec. 6, 2017) (J.A. 142-54).
       2
        To the extent that Nestor disputes the district court’s factual findings, we review
them for clear error, considering the evidence in the light most favorable to the
(Continued)
                                             2
       The district court found that on May 10, 2017, Officer Riley was on duty traveling

on a rural road in Harrison County, West Virginia, when he observed Nestor removing

items from the bed of a truck that was parked off the left side of the road, on private

posted property, and placing them on the ground. Officer Riley described the items -

which included bottles, cans, tires, an old hay bale, and other material - as “trash” or

“junk.” J.A. 169.

       Officer Riley knew the rural road to be an area where individuals illegally

discarded garbage, and he had received prior complaints from nearby residents about

individuals creating open dumps on the roadside. Under West Virginia law, “[o]pen

dumps are prohibited and it is unlawful for any person to create, contribute to, or operate

an open dump or for any landowner to allow an open dump to exist on the landowner’s

property unless that open dump is under a compliance schedule approved by the [State].”

W.Va. Code § 22-15-10(a). An “open dump” is “any solid waste disposal which does not

have a permit under this article, or is in violation of state law, or where solid waste is

disposed in a manner that does not protect the environment.” W.Va. Code § 22-15-2(23).

A person who willfully or negligently violates the open dump law is guilty of a

misdemeanor and is subject to possible fines and imprisonment. W.Va. Code § 22-15-

15(b)(3). DNR officers, such as Officer Riley, are authorized to arrest on sight any person




government. United States v. Kolsuz, 890 F.3d 133, 141-42 (4th Cir. 2018). We review
the district court’s legal conclusions de novo. Id.


                                            3
who commits a criminal offense in violation of state law in the officer’s presence. W.Va.

Code § 20-7-4(b)(1).

      Officer Riley stopped and asked Nestor what he was doing. Nestor responded that

he was making room in the truck to haul away portions of a nearby dilapidated trailer. At

that time, Officer Riley saw another person hiding on the opposite side of Nestor’s truck.

With his suspicion raised, Officer Riley ordered the person to show his hands. When the

person stepped out, Officer Riley recognized him as David Wayne Martin, who was his

cousin and whom he had arrested in the past.

      Being suspicious of Nestor’s explanation and Martin’s attempt to hide, Officer

Riley parked his truck and continued to question the two men, who asserted that they had

permission from the landowner to tear down the dilapidated trailer. Officer Riley was

familiar with the area, but he did not recognize the name of the landowner that Nestor

and Martin provided. As he questioned the two men, a nearby resident approached, and

Officer Riley attempted to confirm the name of the landowner given by Nestor and

Martin. However, the resident stated that the name they gave was not the true

landowner’s name and that Nestor’s vehicle should not be on the property. 3

      Presented with this information, Officer Riley radioed dispatch (at 12:31 p.m.) that

he was investigating an illegal dump and requested a warrant check on Nestor and

Martin. Shortly thereafter, dispatch informed Officer Riley that there was a possible

      3
        Nestor later admitted that he and Martin had been removing items from the truck
so that they could complete a tree job in a nearby town. Officer Riley believed this
explanation because he knew that Martin cut trees.


                                            4
warrant on Martin for illegal firearm possession and one on Nestor for writing a bad

check. Upon learning this information, Officer Riley handcuffed Nestor and Martin and

requested assistance to transport them. In response, at 12:37 p.m., Harrison County

Deputy Sheriff Brian Deem was directed to assist Officer Riley. Thereafter, dispatch

informed Officer Riley that the warrant thought to be outstanding on Martin was actually

for Martin’s son.

       While awaiting confirmation regarding Nestor’s possible warrant, Officer Riley

questioned Nestor and Martin about several new items that were in the back of their

truck. Nestor replied that they had purchased the items at Wal-Mart and that the receipt

was inside the truck. Officer Riley asked whether there were any drugs or guns in the

truck and whether he could search it. Nestor refused to consent to the search, and Officer

Riley requested a canine unit. Dispatch advised Officer Riley that Deputy Deem was en

route and wanted to speak to Nestor and Martin, and that the possible warrant against

Nestor could not be confirmed. At 12:41 p.m., Harrison County Deputy Sheriff John

Laulis, the canine unit officer, was dispatched to the scene.

       As Officer Riley proceeded to obtain the license number on Nestor’s truck, Nestor

admitted that the license plate was issued for another vehicle he owned and that the truck

was not registered or insured. After confirming Nestor’s admission and that neither

Nestor nor Martin had a valid driver’s license, Officer Riley decided to arrest them for

the misdemeanor offense of creating an open dump. Officer Riley typically permits

individuals to correct their actions rather than arresting them for creating an open dump,

but he felt that the totality of the circumstances warranted an arrest in this situation.

                                               5
       At 12:50 p.m., after Officer Riley decided to arrest Nestor and Martin, Deputy

Deem arrived on the scene, followed eight minutes later by Deputy Laulis, who

proceeded to conduct a dog sniff around the truck. After the dog made a positive alert, the

officers searched the truck and seized the firearm at issue in this case, as well as other

firearms, drugs, and drug paraphernalia. Subsequently, Officer Riley requested a tow

truck be sent to remove Nestor’s truck from the scene.

                                             II

       As noted, Nestor argued below that the officers discovered and seized the firearm

and other items as the result of an investigatory search that was not supported by

reasonable suspicion and was unreasonably extended to accomplish the dog sniff. In its

thorough order denying the motion, the district court found and concluded that (1)

although Officer Riley’s encounter with Nestor was non-consensual, the investigatory

stop was justified at its inception because Officer Riley had a reasonable, articulable

suspicion that Nestor was creating an unlawful open dump; (2) Officer Riley did not

unduly extend Nestor’s detention beyond a reasonable amount of time to investigate the

creation of an open dump; (3) Officer Riley had probable cause to arrest Nestor for

creating an open dump; and (4) the dog sniff of Nestor’s truck was permissible because

he had been lawfully arrested and the truck was not in a constitutionally protected area.

       Having carefully considered the parties’ arguments under the appropriate standard

of review, we find no error in either the district court’s factual findings, which are

supported by the record, or legal conclusions, which comport with the controlling legal

principles. Stated succinctly, we agree with the district court’s apt summary: “Officer

                                             6
Riley subjected Nestor to a lawful investigatory detention pursuant to Terry v. Ohio,

which concluded in an arrest supported by probable cause to believe that Nestor had been

creating an open dump. The subsequent dog sniff and search of Nestor's truck likewise

were in compliance with the Fourth Amendment.” J.A. 200.

      Accordingly, we affirm substantially on the reasoning of the district court. We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

                                                                           AFFIRMED




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