Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-2007

USA v. Booker
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1074




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"USA v. Booker" (2007). 2007 Decisions. Paper 742.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/742


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 06-1074


                           UNITED STATES OF AMERICA

                                           v.

                                 ROBERT BOOKER,

                                                      Appellant



                      Appeal from the United States District Court
                       for the Western District of Pennsylvania
                       (D.C. Criminal Action No. 04-cr-00307)
                      District Judge: Honorable Gustave Diamond


                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 10, 2007

                   Before: RENDELL and AMBRO, Circuit Judges,
                             SHAPIRO,* District Judge

                             (Opinion filed: July 18, 2007)


                                       OPINION


AMBRO, Circuit Judge



      *
       Honorable Norma L. Shapiro, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
       Robert Booker appeals his drug and firearm convictions on the ground that the

Government seized its key evidence in an unconstitutional traffic stop. He also

challenges the portion of his sentence that requires him to submit to DNA testing. For the

reasons that follow, we affirm both the conviction and the sentence.1

                                             I.

       Because we write only for the parties, we relate only those facts necessary to our

disposition. On the evening of June 20, 2004, Booker and Pittsburgh police officer

Robert Kavals were driving in opposite directions on North Homewood Avenue in

Pittsburgh. As they approached each other, Booker turned left onto Race Street. Kavals

turned on his lights and siren, attempting to pull Booker over. After stopping his car,

Booker got out and began to walk away. Kavals told him to stop and that he was not free

to leave, but Booker ran away. Kavals caught and arrested him. During the chase,

Booker had thrown away a handgun. A search of his person following the arrest revealed

two plastic bags containing crack cocaine. Based on this incident, a grand jury charged

Booker with one count of possession of five or more grams of crack with intent to

distribute, 21 U.S.C. § 841(a)(1) & (b)(1)(B)(iii), and one court of carrying a firearm

while committing a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i).

       Booker moved to suppress evidence of the drugs and the gun on the ground that


       1
        We have jurisdiction to review the conviction under 28 U.S.C. § 1291 and the
sentence under 18 U.S.C. § 3742(a)(1). We review the District Court’s factual findings at
a suppression hearing for clear error and its legal conclusions de novo. United States v.
Hull, 

, 142 (3d Cir. 2006).

                                             2
the traffic stop was an unlawful seizure under the Fourth Amendment. At the suppression

hearing, Kavals testified that he stopped Booker for two reasons: (1) failing to stop at a

stop sign, and (2) failing to use a turn signal. From the evidence Booker presented at the

hearing, it is clear (and the Government now admits) there was no stop sign at the corner

of North Homewood Avenue and Race Street. Confronted with this evidence, Kavals

testified that he thought there was a stop sign, as he was slowing to a stop himself when

he saw Booker turn in front of him. The District Court ruled that the stop was lawful

because Kavals reasonably thought there was a stop sign and because Booker did not use

a turn signal.

       Following the admission of this evidence, Booker pled guilty to both counts. In

his plea agreement, however, he preserved for appeal the issue of whether his motion to

suppress should have been granted.

       A traffic stop is permissible under the Fourth Amendment if the officer has a

reasonable, articulable suspicion that an individual has violated the traffic laws. United

States v. Delfin-Colina, 

, 397 (3d Cir. 2006). It is undisputed that making a

turn without using a turn signal is illegal in Pennsylvania. 75 Pa. Cons. Stat. § 3334(b).

The District Court credited Kavals’s unrebutted testimony that Booker did not use his

signal. Thus, Kavals had the reasonable suspicion necessary to make a constitutional

traffic stop.

       Booker argues that Kavals’s mistake regarding the stop sign should have led the

Court to discredit the whole of his testimony. We cannot agree. It is certainly plausible

                                              3
that Kavals made a good-faith mistake in believing that there was a stop sign at the

intersection but correctly noted that Booker did not use a turn signal. Kavals s`o testified.

The question is whether the District Court should have believed him. Determining the

credibility of witnesses is primarily the province of the factfinder, and when, as here, the

District Court resolves a credibility question in a manner that is not clearly erroneous, we

will not disturb it. See Scully v. US WATS, Inc., 

, 506 (3d Cir. 2001).

Moreover, Kavals’s subjective belief that he was stopping Booker for a stop-sign

violation (in addition to the turn-signal violation) does not matter, as “subjective motive

or intent is not relevant” to the analysis. United States v. Goodrich, 

, 559

(3d Cir. 2006). Rather, as long as the officer has some “‘particularized and objective

basis for suspecting the particular person stopped of criminal activity,’” the stop is

permissible. 

States v. Cortez, 

, 417–18 (1981)).

Because Kavals reasonably believed that Booker violated the turn-signal law, the stop

was legal, and we need not address whether Kavals also had a reasonable suspicion as to

a stop-sign violation.

                                             II.

       The District Court imposed a sentence of supervised release to follow Booker’s

prison term. As a condition of that release, Booker must submit to DNA testing as

ordered by his probation officer. Booker argues that this condition also violates the

Fourth Amendment, this time for requiring him to submit to an invasion of privacy

without probable cause. This issue, however, is not one of the few that Booker may

                                              4
appeal under the appellate waiver in his plea agreement. Because Booker does not

challenge the validity of his appellate waiver and because we see no manifest injustice in

enforcing it, we decline to consider the merits of his argument and affirm the judgment of

sentence. See United States v. Gwinnett, 

, 203 (3d Cir. 2007).

                                       * * * * *

       The District Court found that Kavals saw Booker make a turn without using a turn

signal in violation of a Pennsylvania traffic law. Because this finding is not clearly

erroneous, the Court’s conclusion that Kavals had a reasonable suspicion that Booker had

violated a traffic law is correct. We therefore affirm its denial of Booker’s motion to

suppress evidence and the judgment of conviction.

       Because Booker waived his right to appeal the DNA testing issue, we affirm the

judgment of sentence without considering the merits of Booker’s argument.




                                              5