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United States v. Wimer

United States District Court, W.D. Virginia, Charlottesville Division

July 27, 2017

United States of America,
Josh T. Wimer, Defendant.


          Norman K. Moon Judge.

         Pursuant to 18 U.S.C. § 3402 and Rule 58(g)(2), Defendant Josh T. Wimer has appealed his misdemeanor conviction for driving a motor vehicle with a revoked driver's license. (Dkts. 1, 4-1); 36 C.F.R. § 261.54(d) (incorporating Va. Code § 46.2-301 on federal property). His charge stemmed from an interaction with a United States Forest Service officer at a road closure barricade in George Washington National Forest. Defendant seeks to overturn his conviction on the ground that the encounter constituted a seizure in violation of the Fourth Amendment.

         The central issue is whether Defendant's interaction with the officer was consensual. Because a reasonable person in Defendant's circumstances would have felt free to leave, the initial interaction was a consensual one. Accordingly, there was no Fourth Amendment violation, and Magistrate Judge Joel Hoppe correctly denied Defendant's motion to suppress. Defendant's conviction will therefore be affirmed.

         I. Standard of Review

         A defendant convicted by a magistrate judge may appeal to a district court judge in the district where there offense was committed. 18 U.S.C. § 3402. “An appellate review conducted by a district court after a bench trial before a magistrate judge is not a trial de novo; rather, the district court utilizes the same standards of review applied by a court of appeals in assessing a district court conviction.” United States v. Bursey, 416 F.3d 301, 305 (4th Cir. 2005) (citing Fed.R.Civ.P. 58(g)(2)(D)).

         When considering the denial of a motion to suppress, “[f]indings of fact made by the trial court are reviewed for clear error, and issues of law (such as the interpretation of statutes and regulations) are reviewed de novo.” Bursey, 416 F.3d at 306; see also United States v. Abramski, 706 F.3d 307, 313-14 (4th Cir. 2013). The Court must “construe the evidence in the light most favorable to . . . the prevailing party below.” United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998). Thus, the Court “assess[es] challenges to the sufficiency of the evidence by viewing it-including all reasonable inferences to be drawn therefrom-in the light most favorable to the Government.” Bursey, 416 F.3d at 306.

         II. Facts

         On March 18, 2016, Officer Katie Ballew of the United States Forest Service was working in the George Washington National Forest, within the Western District of Virginia, at the intersection of St. Mary's Road and Coal Road. (Dkt. 7 at 3-4, 7). Officer Ballew was in the area to help direct traffic at a road closure, pursuant to 36 C.F.R. § 261.53(e), due to “a walled-in fire” in the Forest. (Id. at 4). The closure order had been lawfully obtained and posted in the district office. (Id. at 4-5).

         Officer Ballew testified that St. Mary's Road was recently paved and “is a very narrow road, hard to navigate.” (Id. at 6). That evening there was “a great deal of traffic approaching the barricade, ” and Ballew, along with another officer, “would have to turn them around.” (Id. at 6-7). There was no intervention plan in place, and the two officers had not agreed to stop any particular vehicles. (Id. at 7). Rather, Officer Ballew testified that they “were just trying to get the vehicles out of there.” (Id.). The traffic that night was “pretty heavy” because people often like to come see forest fires on the mountains. (Id. at 8). Officer Ballew and the other officer were “hand-signaling other vehicles to stop, so we could get one vehicle turned around. It was kind of a mess.” (Id.). As Officer Ballew testified:

There was just such a jam. It was just really quite a mess. Most of the other vehicles couldn't even turn around. They had to stop vehicles from coming in, so one vehicle could just make the, you know, five-point turn, just to turn around and get out, and then do it with the next vehicle, because they were all just in a line. It was just kind of a jam.

(Id. at 19).

         At approximately 8:00 p.m., Defendant approached Officer Ballew and the road closure sign. (Id. at 9). Officer Ballew testified that “[r]ight away I recognized [Defendant] from a previous law enforcement contact.” (Id.). The previous contact had been “[a] few years ago, ” and she remembered that during her previous contact with Defendant his license had been revoked. (Id. at 10).

         As Defendant approached the roadblock, Officer Ballew walked up to the driver-side window to speak to him. At this point Defendant had not yet turned his vehicle around. (Id. at 16). Officer Ballew testified that he could not proceed because of the barricade, and he could not have turned around because the road was narrow (Id.). She did not turn on her patrol vehicle lights (as it was a few paces away), use a flashlight, remove her gun from her holster, or ask Defendant to pull over at that time. (Id. at 8, 10-11).[1] In other words, Officer Ballew simply approached the car as it waited to turn around.

         When Officer Ballew arrived at Defendant's driver-side window she said, “Hello. How are you?” “Are you revoked?” “Where is your license?” (Id. at 10, 16). Defendant stated that he had left his license at home, and Officer Ballew responded, “Now let's not lie about this. You know, no big deal. Are you suspended?” (Id. at 10). Defendant said “yes, ” and Officer Ballew motioned him to pull over towards her patrol vehicle. (Id.). Officer Ballew then searched for Defendant's information, and Augusta County Emergency Communications confirmed that his ...

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