United States v. Wesley W. Pappas, Also Known as Wesley Pantona

452 F.3d 767, 2006 U.S. App. LEXIS 15985, 2006 WL 1726032
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 26, 2006
Docket05-4373
StatusPublished
Cited by14 cases

This text of 452 F.3d 767 (United States v. Wesley W. Pappas, Also Known as Wesley Pantona) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Wesley W. Pappas, Also Known as Wesley Pantona, 452 F.3d 767, 2006 U.S. App. LEXIS 15985, 2006 WL 1726032 (8th Cir. 2006).

Opinion

MELLOY, Circuit Judge.

Wesley Pappas appeals the judgment and sentence of the district court 1 following Pappas’s conditional guilty plea to being a felon in possession of a firearm. Pappas has three arguments on appeal. First, Pappas contends that the police lacked probable cause and reasonable suspicion for the traffic stop that led to his arrest. Second, Pappas argues that the search of his vehicle was improper, and all evidence seized because of that search should have been suppressed. Third, Pap-pas appeals his sentence as unreasonable based upon the sentencing goals outlined in 18 § U.S.C. 3553(a). We affirm.

I.

On January 3, 2005, Pappas was driving his pickup truck through Omaha, Nebraska. Officer Adele Tomsu spotted the truck when it was running, but not moving. Tomsu had seen Pappas and his truck before. In November 2004, Tomsu arrested Pappas for driving his pickup truck with a suspended license. During the arrest, Pappas resisted and injured Tomsu such that she was unable to work for six weeks. Tomsu also believed that Pappas was a convicted felon and had an anonymous tip that Pappas was carrying a firearm. Based upon that history and information, Tomsu believed that the pickup truck she saw on January 3 belonged to Pappas, and she suspected that he was again driving without a license.

While waiting for the vehicle to move, Tomsu ran a computer check and found that Tomsu’s license remained suspended. Tomsu observed the pickup truck as it started moving. Tomsu and another police car followed the pickup truck. Pappas apparently spotted the two police cars even though they did not turn on their sirens or flashing lights because Pappas abruptly stopped his truck. Tomsu approached the truck and ordered Pappas to get out of the vehicle. Pappas got out of his truck and Tomsu put Pappas in handcuffs.

Another officer at the scene, Eric Nord-by, searched Pappas. In Pappas’s front pants pocket, Nordby found a live round from a .38 caliber handgun. At this time, the officers had not issued Miranda warnings to Pappas. Nordby asked Pappas if he had a gun. Pappas denied being in possession of a gun and said he had found the bullet in the street.

Nordby and Tomsu escorted Pappas to the police station. Nordby began a search of Pappas’s truck at the scene of the arrest. At trial, Nordby said he was searching the vehicle as part of an inventory search prior to impoundment. Nordby further claimed that he had produced an *770 inventory of property form but that it was destroyed before the trial. Consequently, there is no inventory form in the record. Nordby’s search of the car included a search of the engine compartment. In the recess by the radiator near the driver’s side headlight, Nordby saw a .38 caliber semiautomatic pistol. Nordby also found a small pouch of methamphetamine in the visor of the driver’s side of the vehicle. The vehicle was never actually impounded because Pappas’s mother claimed the truck before a tow truck arrived.

In February 2005, the government indicted Pappas for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Pappas filed a motion to suppress the evidence obtained as a result of the police stop. The magistrate judge recommended that statements made by Pap-pas to the police be suppressed because Pappas had not received Miranda warnings. However, the magistrate judge recommended that all other suppression arguments by Pappas be denied. Specifically, the magistrate judge found that although the police lacked probable cause and reasonable suspicion to search the vehicle under the automobile exception of the Fourth Amendment, the search of the truck was proper as part of an inventory search. The district court adopted the recommendation of the magistrate judge in its entirety.

On August 30, 2005, Pappas entered a conditional guilty plea reserving his right to appeal the suppression motion. In the plea agreement, the government agreed to recommend the maximum three-level reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility and a sentence at the low end of the applicable Guidelines range absent any downward departures.

Subsequent to the plea hearing, a Pre-sentence Investigation Report (PSR) was prepared. The PSR called for a base offense level of 24 because Pappas had two prior convictions for crimes of violence. The PSR also recommended a three-level reduction for acceptance of responsibility. The PSR put Pappas’s total offense level at 21. Based upon Pappas’s criminal history category VI, the advisory sentencing range in the PSR was 77 to 96 months imprisonment.

Pappas argued that his prior convictions for burglary of a building, car theft, and attempted escape were not crimes of violence. Further, Pappas asked the court to sentence him below the Guidelines range to mitigate the overstatement of Pappas’s criminal history. Pappas argued that because his family and work situation had stabilized, the district court should sentence him to four years imprisonment utilizing the factors outlined in 18 U.S.C. § 3553(a).

The district court rejected Pappas’s sentencing arguments. On November 30, 2005, the district court imposed a low-end Guidelines sentence of 77 months imprisonment. Pappas appeals his sentence and conviction.

II.

Pappas argues that the police lacked reasonable suspicion that Pappas was committing criminal activity or probable cause to believe that Pappas had committed a traffic violation. Therefore, Pap-pas argues that the district court erred by denying his motion to suppress all evidence stemming from that traffic stop. “In reviewing a denial of a motion to suppress, we review the district court’s factual findings for clear error and questions of law de novo.... ” United States v. Mallari, 334 F.3d 765, 766 (8th Cir.2003).

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and ef *771 fects, against unreasonable searches and seizures ....” U.S. Const, amend. IV. A traffic stop constitutes a seizure for Fourth Amendment purposes. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 185 L.Ed.2d 89 (1996). To be reasonable, a traffic stop must be supported by, at a minimum, “a reasonable, articulable suspicion that criminal activity” is occurring. United States v. Jones, 269 F.3d 919, 924 (8th Cir.2001). A traffic violation provides probable cause to the police to meet the constitutional reasonableness requirement. United States v. Ehrmann, 421 F.3d 774, 780 (8th Cir.2005).

We do not find error in the district court’s finding that the police had probable cause for the initial stop and search of Pappas’s person.

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452 F.3d 767, 2006 U.S. App. LEXIS 15985, 2006 WL 1726032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wesley-w-pappas-also-known-as-wesley-pantona-ca8-2006.