UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4767
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES LEE HERMAN, JR., a/k/a Herman Lee James, Jr.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, District Judge. (2:19-cr-00107-1)
Submitted: September 30, 2020 Decided: October 7, 2020
Before GREGORY, Chief Judge, WYNN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Wesley P. Page, Federal Public Defender, Jonathan D. Byrne, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Michael B. Stuart, United States Attorney, Julie M. White, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
James Lee Herman, Jr., ∗ entered a conditional guilty plea to possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), reserving the right to appeal
the district court’s denial of his motion to suppress. In his motion, Herman argued that the
arresting officer unlawfully searched him during a traffic stop, requiring that the firearm
recovered during that search be excluded from evidence. In response, the Government
argued that the officer had probable cause to arrest Herman for driving under the influence
of alcohol; that, absent the discovery of the firearm, the officer would have arrested Herman
for driving under the influence and performed a search incident to that arrest; and that in
performing that search, the officer inevitably would have discovered the firearm. The
district court agreed with the Government and denied Herman’s motion to suppress.
Herman now appeals that ruling. For the reasons that follow, we affirm.
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. “Generally, the government is prohibited from using evidence
discovered in an unlawful search against the individual whose constitutional right was
violated.” United States v. Seay, 944 F.3d 220, 223 (4th Cir. 2019), as amended (Dec. 4,
2019). However, this rule is subject to certain exceptions. Id. “One such exception is the
inevitable discovery doctrine, which allows the government to use evidence gathered in an
∗ Appellant asserts that his true name is Herman James. (Appellant’s Br. (ECF No. 13) at 1 n.1). Because the district court’s docket lists the named defendant as “James Lee Herman, Jr.,” this court’s practice is to do likewise in an effort to avoid inconsistency.
2 otherwise unreasonable search if it can prove by a preponderance of the evidence that law
enforcement would have ultimately or inevitably discovered the evidence by lawful
means.” Id. (internal quotation marks omitted). “‘Lawful means’ include an inevitable
search falling within an exception to the warrant requirement . . . that would have inevitably
uncovered the evidence in question.” United States v. Bullette, 854 F.3d 261, 265 (4th Cir.
2017).
“[W]hen law enforcement officers have probable cause to make a lawful custodial
arrest, they may—incident to that arrest and without a warrant—search the arrestee’s
person and the area within his immediate control.” United States v. Ferebee, 957 F.3d 406,
418 (4th Cir. 2020) (internal quotation marks omitted). “The constitutionality of a search
incident to an arrest does not depend on whether there is any indication that the person
arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone,
authorizes a search.” Id. (alteration and internal quotation marks omitted).
“It is well-settled under Fourth Amendment jurisprudence that a police officer may
lawfully arrest an individual in a public place without a warrant if the officer has probable
cause to believe that the individual has committed, is committing, or is about to commit a
crime.” United States v. Dickey-Bey, 393 F.3d 449, 453 (4th Cir. 2004). “Probable cause
to justify an arrest means facts and circumstances within the officer’s knowledge that are
sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed an offense.” Humbert v. Mayor &
City Council of Balt. City, 866 F.3d 546, 555 (4th Cir. 2017) (alterations and internal
quotation marks omitted). “While probable cause requires more than bare suspicion, it
3 requires less than that evidence necessary to convict.” Id. at 556 (internal quotation marks
omitted).
In determining whether probable cause existed for an arrest, we must look at the
totality of the circumstances surrounding the arrest. Illinois v. Gates, 462 U.S. 213, 230-
32 (1983); Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996). Determining whether the
information surrounding an arrest is sufficient to establish probable cause is an
individualized and fact-specific inquiry. Wong Sun v. United States, 371 U.S. 471, 479
(1963). “Whether probable cause exists in a particular situation always turns on two factors
in combination: the suspect’s conduct as known to the officer, and the contours of the
offense thought to be committed by that conduct.” Graham v. Gagnon, 831 F.3d 176, 184
(4th Cir. 2016) (alteration and internal quotation marks omitted).
As relevant to the instant appeal, any person driving a vehicle in West Virginia while
“in an impaired state” is guilty of a misdemeanor. W. Va. Code § 17C-5-2(e) (2019).
“Impaired state” means a person is under the influence of alcohol, any controlled substance,
or any other drug. W. Va. Code § 17C-5-2(a)(1).
When reviewing a district court’s ruling on a motion to suppress, we review
“conclusions of law de novo and underlying factual findings for clear error.” United States
v. Fall, 955 F.3d 363, 369-70 (4th Cir. 2020) (internal quotation marks omitted), petition
for cert. filed, No. 19-8678 (U.S. June 3, 2020). “If, as here, the district court denied the
motion to suppress, [we] construe[] the evidence in the light most favorable to the
government.” Id. (alterations and internal quotation marks omitted).
4 “Whether law enforcement would have inevitably discovered the evidence by
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4767
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES LEE HERMAN, JR., a/k/a Herman Lee James, Jr.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, District Judge. (2:19-cr-00107-1)
Submitted: September 30, 2020 Decided: October 7, 2020
Before GREGORY, Chief Judge, WYNN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Wesley P. Page, Federal Public Defender, Jonathan D. Byrne, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Michael B. Stuart, United States Attorney, Julie M. White, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
James Lee Herman, Jr., ∗ entered a conditional guilty plea to possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), reserving the right to appeal
the district court’s denial of his motion to suppress. In his motion, Herman argued that the
arresting officer unlawfully searched him during a traffic stop, requiring that the firearm
recovered during that search be excluded from evidence. In response, the Government
argued that the officer had probable cause to arrest Herman for driving under the influence
of alcohol; that, absent the discovery of the firearm, the officer would have arrested Herman
for driving under the influence and performed a search incident to that arrest; and that in
performing that search, the officer inevitably would have discovered the firearm. The
district court agreed with the Government and denied Herman’s motion to suppress.
Herman now appeals that ruling. For the reasons that follow, we affirm.
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. “Generally, the government is prohibited from using evidence
discovered in an unlawful search against the individual whose constitutional right was
violated.” United States v. Seay, 944 F.3d 220, 223 (4th Cir. 2019), as amended (Dec. 4,
2019). However, this rule is subject to certain exceptions. Id. “One such exception is the
inevitable discovery doctrine, which allows the government to use evidence gathered in an
∗ Appellant asserts that his true name is Herman James. (Appellant’s Br. (ECF No. 13) at 1 n.1). Because the district court’s docket lists the named defendant as “James Lee Herman, Jr.,” this court’s practice is to do likewise in an effort to avoid inconsistency.
2 otherwise unreasonable search if it can prove by a preponderance of the evidence that law
enforcement would have ultimately or inevitably discovered the evidence by lawful
means.” Id. (internal quotation marks omitted). “‘Lawful means’ include an inevitable
search falling within an exception to the warrant requirement . . . that would have inevitably
uncovered the evidence in question.” United States v. Bullette, 854 F.3d 261, 265 (4th Cir.
2017).
“[W]hen law enforcement officers have probable cause to make a lawful custodial
arrest, they may—incident to that arrest and without a warrant—search the arrestee’s
person and the area within his immediate control.” United States v. Ferebee, 957 F.3d 406,
418 (4th Cir. 2020) (internal quotation marks omitted). “The constitutionality of a search
incident to an arrest does not depend on whether there is any indication that the person
arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone,
authorizes a search.” Id. (alteration and internal quotation marks omitted).
“It is well-settled under Fourth Amendment jurisprudence that a police officer may
lawfully arrest an individual in a public place without a warrant if the officer has probable
cause to believe that the individual has committed, is committing, or is about to commit a
crime.” United States v. Dickey-Bey, 393 F.3d 449, 453 (4th Cir. 2004). “Probable cause
to justify an arrest means facts and circumstances within the officer’s knowledge that are
sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed an offense.” Humbert v. Mayor &
City Council of Balt. City, 866 F.3d 546, 555 (4th Cir. 2017) (alterations and internal
quotation marks omitted). “While probable cause requires more than bare suspicion, it
3 requires less than that evidence necessary to convict.” Id. at 556 (internal quotation marks
omitted).
In determining whether probable cause existed for an arrest, we must look at the
totality of the circumstances surrounding the arrest. Illinois v. Gates, 462 U.S. 213, 230-
32 (1983); Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996). Determining whether the
information surrounding an arrest is sufficient to establish probable cause is an
individualized and fact-specific inquiry. Wong Sun v. United States, 371 U.S. 471, 479
(1963). “Whether probable cause exists in a particular situation always turns on two factors
in combination: the suspect’s conduct as known to the officer, and the contours of the
offense thought to be committed by that conduct.” Graham v. Gagnon, 831 F.3d 176, 184
(4th Cir. 2016) (alteration and internal quotation marks omitted).
As relevant to the instant appeal, any person driving a vehicle in West Virginia while
“in an impaired state” is guilty of a misdemeanor. W. Va. Code § 17C-5-2(e) (2019).
“Impaired state” means a person is under the influence of alcohol, any controlled substance,
or any other drug. W. Va. Code § 17C-5-2(a)(1).
When reviewing a district court’s ruling on a motion to suppress, we review
“conclusions of law de novo and underlying factual findings for clear error.” United States
v. Fall, 955 F.3d 363, 369-70 (4th Cir. 2020) (internal quotation marks omitted), petition
for cert. filed, No. 19-8678 (U.S. June 3, 2020). “If, as here, the district court denied the
motion to suppress, [we] construe[] the evidence in the light most favorable to the
government.” Id. (alterations and internal quotation marks omitted).
4 “Whether law enforcement would have inevitably discovered the evidence by
lawful means is a question of fact” on which we accord “great deference to the district
court’s findings.” Bullette, 854 F.3d at 265. “A court reviewing for clear error may not
reverse a lower court’s finding of fact simply because it would have decided the case
differently. Rather, a reviewing court must ask whether, on the entire evidence, it is left
with the definite and firm conviction that a mistake has been committed.” Ferebee, 957
F.3d at 417 (internal quotation marks omitted). “If the district court’s account of the
evidence is plausible in light of the record viewed in its entirety, the court of appeals may
not reverse it even though convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently.” Id. (internal quotation marks omitted). When
alternate views of the evidence are plausible in light of the record as a whole, “the district
court’s choice between them cannot be clearly erroneous.” United States v. Stevenson, 396
F.3d 538, 542 (4th Cir. 2005) (alterations and internal quotation marks omitted).
Based on our review of the record, we conclude that the district court did not err in
crediting the arresting officer’s testimony and finding that the arresting officer had
probable cause to arrest Herman for driving under the influence. We further conclude that
the district court did not err in finding that, absent the discovery of the firearm, the arresting
officer would have arrested Herman for driving under the influence, would have searched
him incident to that arrest, and inevitably would have discovered the firearm. Accordingly,
we affirm the district court’s judgment.
5 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