United States District Court, W.D. Virginia, Charlottesville Division
K. Moon Judge.
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.
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
Standard of Review
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)).
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.
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).
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
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
(Id. at 19).
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).
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). In other words, Officer Ballew
simply approached the car as it waited to turn around.
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