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No. 12-4772
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Liam O'Grady, District
Judge. (1:12-cr-00298-LO-1)
Argued:
Decided:
ARGUED:
Thomas Kenneth Plofchan, Jr., WESTLAKE LEGAL GROUP,
Sterling, Virginia, for Appellant. Stacy Bogert, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Neil H. MacBride, United States Attorney, Alexandria,
Virginia, for Appellee.
Carly
Ahlstrom
was
convicted
of
one
count
of
driving
court
affirmed
the
conviction.
On
appeal
to
The
this
the
Fourth
Amendment.
She
also
challenges
the
affirm. 1
I.
As a result of events that occurred on January 6, 2012,
Carly Ahlstrom was charged with driving without a tag light, in
violation of 36 C.F.R. 4.2, incorporating Va. Code Ann.
46.2-1013 (Citation 3326984).
5,
22.
The
Virginia
statute
requires
illumination
of
J.A. at 6.
with driving
while
intoxicated,
in
violation
of
36
C.F.R.
who
executed
the
vehicle
stop,
lacked
reasonable
Finding that
by
Virginia
Id. at 51.
law,
the
magistrate
judge
denied
the
The following evidence was adduced at the motion hearing and the
trial.
At
approximately
2:45
a.m.
on
January
6,
2012,
Officer
Id. at 25-26.
time,
Officer
Gillespie
was
parked
in
turn
lane
At the
on
the
that
he
could
southbound sides.
see
traffic
on
both
the
northbound
and
Id. at 27.
As the Lexus
passed the police vehicle, Officer Gillespie looked in his sideview mirror and noticed that the rear license plate of the Lexus
was
not
visible
in
the
dark,
which
he
understood
to
be
C.F.R.
1.2(a),
4.1.
The
federal
traffic
See
regulations
Id. 4.2(a).
Violating a provision of
Id. 4.2(b).
mile,
and
observed
it
weaving
several
times
within
its
Id. at
38-39.
Nevertheless,
based
on
his
earlier
observations,
Officer
Id. at 28.
Officer
driver.
Id. at 53.
and
another
was
Gillespie
in
Id. at 29.
determined
that
Ahlstrom
was
the
rear
seat.
Id.
Officer
Gillespie
noticed that Ahlstrom and the front passenger were wearing coats
that were on backwards, their legs were bare, and underwear and
other
clothing
According
to
was
strewn
Gillespie,
about
Ahlstrom
the
vehicle.
explained
that
Id.
she
at
54.
and
the
front-seat passenger had been playing a game, and she had not
stopped the vehicle sooner because she was not fully clothed.
Id.
Officer Gillespie also observed that Ahlstroms eyes were
red and glassy, and he detected an odor of alcoholic beverage
emanating from her.
drinking,
but
drinking.
Id.
stated
Id.
that
front-seat
passenger
had
been
test.
Id.
at
56-57,
61.
According
to
Officer
his
observations,
Officer
Gillespie
placed
Ahlstrom
under
Id. at
Miranda rights, she blurted that she knew she should not have
been driving, but did so anyway.
Id. at 65-66.
Id. at 67-69.
Id. at 68-69.
to
Park
Police
training,
Officer
Gillespie
Id. at 69-
70. 2
Additionally,
Officer
Gillespie
testified
that
the
Id. at 70.
In
before
use,
and
is
malfunction is detected.
designed
to
disable
itself
if
Id. at 70-71.
the
Intoximeter,
objection.
which
was
entered
into
evidence,
over
Id. at 154.
readings
are
above
the
legal
limit
for
motor
Id.
vehicle
Id. at 154.
contested
the
admissibility
of
the
Intoximeter
Id. at 93.
evidence
calibrated.
that
the
Id. at 99-100.
device
was
reliable
or
properly
contentions.
The
court
convicted
Ahlstrom
on
Citation
3326986,
for
the
conviction
found
and
Ahlstrom
not
administratively
guilty
on
closed.
Citation
Id.
3326984,
The
for
driving
United
States
See id.
subsequently
appealed
to
the
court
See id. at
Noting that the car went right by the officer, who saw
Id. at
conviction.
were
Id.
admissible
and
Accordingly,
sufficient
on
September
Id.
to
support
14,
2012,
the
the
Id. at 167.
II.
A.
On appeal, Ahlstrom contends that the district court erred
in finding sufficient evidence to support the vehicle stop.
She
Fed.
a
R.
Crim.
P.
58(g)(2)(D),
bench
trial
conducted
by
district
court
magistrate
judge
in
assessing
district
9
court
conviction.
United
In turn,
same
review.
standards
as
was
the
district
courts
appellate
Id. at 305-06.
Ahlstroms
challenges
to
the
Intoximeter
test
results,
Id. at 306;
see also United States v. Abramski, 706 F.3d 307, 313-14 (4th
Cir.
2013).
We
consider
the
evidence
F.3d
542,
547
(4th
Cir.
in
the
light
most
1998).
Thus,
[w]e
assess
at 306; see also United States v. Vankesteren, 553 F.3d 286, 288
(4th Cir. 2009).
B.
1.
Ahlstrom
vehicle
complains
violated
her
that
rights
Officer
under
Gillespies
the
Fourth
stop
of
her
Amendment,
and
We disagree.
under
the
Fourth
Amendment.
United
States
v.
Digiovanni, 650 F.3d 498, 506 (4th Cir. 2011) (citing Whren v.
United States, 517 U.S. 806, 809-10 (1996)).
As such, a vehicle
United States v.
Wilson, 205 F.3d 720, 722 (4th Cir. 2000) (quoting Whren, 517
U.S. at 809-10)).
officers
violation.
reasonable
articulable
suspicion
of
traffic
2009); see also United States v. Branch, 537 F.3d 328, 335 (4th
Cir. 2008) (Observing a traffic violation provides sufficient
justification
for
police
officer
to
detain
the
offending
vehicle . . . .).
Notably,
the
reasonable
suspicion
standard
is
less
quantum
of
proof
necessary
to
demonstrate
In fact,
reasonable
We have explained:
11
this
standard
is
objective,
not
subjective,
[a]ny
ulterior motive a police officer may have for making the traffic
stop is irrelevant.
Gillespie
executed
stop
of
Ahlstroms
vehicle
J.A. at 45.
testified
rear
that,
had
Ahlstroms
tag
be
sure,
Gillespie
as
did
Ahlstrom
not
observes,
specifically
12
App.
Further, he
been
properly
Id.
Br.
testify
at
that
21-23,
he
was
2012)
testimony
of
police
legality
officers
as
of
traffic
stop
to
proximity
of
based
on
defendants
See id.
the
only
question
is
whether
his
mistake
of
fact
was
537
F.3d
at
337
(citation
omitted).
Viewing
the
to
of
execute
a
Virginia
traffic
traffic
13
stop
law.
based
See
36
on
Ahlstroms
C.F.R.
4.2
(incorporating
state
law);
Va.
Code
Ann.
46.2-1013.
regulations
prohibit
the
operation
of
motor
Id. 4.23(a)(2).
4.23(c)(1).
The
applicable
regulation,
36
C.F.R.
At
prove
that
Ahlstroms
BrAC
exceeded
the
legal
limit
means
content.
1991).
of
obtaining
evidence
of
breath
alcohol
and unchallenged.
1196
(9th
Cir.
1998).
Ahlstrom
asserts,
however,
that
the
In
alcohol
argues
that
evidence
at
the
test
test
trial.
was
administered.
results
Even
were
with
the
Therefore,
improperly
test
Ahlstrom
admitted
results,
into
Ahlstrom
evidence.
In
promulgating
36
C.F.R.
15
for
evaluating
the
reliability
of
machine-
generated evidence.
In
2007),
United
we
States
v.
explained:
Washington,
Any
concerns
498
F.3d
about
225
the
(4th
Cir.
reliability
process
Authentication
of
of
authentication
information
is
such
Id.
generally
at
231.
satisfied
by
(quoting
Washington).
Fed.
R.
Evid.
901(b)(9))
(alterations
in
16
attestation
ha[d]
National
conforming
clause,
Highway
to
the
the
device
Traffic
model
Safety
approved
Administration
specifications
been
for
J.A. at 154. 5
by
(NHTSA)
evidential
the
as
breath
NHTSA certification
is
widely
accepted
by
courts
as
evidence
of
devices
(1984)
(recognizing
accuracy
of
breath
alcohol
testing
The NHTSA, a
See
Conforming
Products
List
of
Evidential
Breath
It provid[es] a centralized
collect
evidence
in
law
enforcement
programs.
Model
48705-01,
NHTSA
48706
approval,
(Sept.
device
17,
must
1993).
undergo
Notably,
to
rigorous
battery
evidence
was
introduced
to
achieve
of
See id.
show
that
the
Specifically,
the
Intoximeters
attestation
1236, 1239-40 (4th Cir. 1989) ([A]n appellate court may take
judicial notice of facts.).
18
within
the
past
90
days
by
United
States
Park
Police
had
been
calibrated
on
November
J.A. at 154.
14,
2011,
less
See id.
Indeed,
than
two
Additionally,
He is well
trained in its use, and stated that the self-diagnostic test did
not reveal any problems.
Ahlstroms metaphysical doubts are not persuasive, and her
reliance on United States v. Foster, 829 F. Supp. 2d 354 (W.D.
Va.
2011),
which
involved
charge
for
driving
under
the
from
alcohol test.
experience,
the
officer
who
had
the
breath
that
if
the
machine
had
not
been
certified
as
19
Id.
Moreover,
Id. at 368.
Id. at 367.
However,
Id. at
369.
Here,
the
attestation
clause
produced
as
part
of
the
within
the
two
months,
and
was
approved
for
because
device
was
NHTSA
approved,
test
printout
the
prosecution,
light
Virginia,
most
443
favorable
U.S.
307,
to
the
319
(1979),
the
Jackson
Intoximeters
v.
test
results show that Ahlstroms BrAC was well over the legal limit
of 0.08 grams of alcohol per 210 liters of breath, in violation
of 36 C.F.R. 4.23(a)(2).
In passing, Ahlstrom also asserts that the district court
erred
in
pursuant
relying
to
Gillespie
maintained,
Fed.
on
R.
testified
in
good
the
magistrate
Civ.
that
P.
58(g),
the
working
judges
which
breath
order,
and
report,
stated:
machine
was
designed
to
filed
Officer
properly
disable
Br.
at
19-20.
Even
accepting,
arguendo,
appellants
AFFIRMED
21