United States v. Samuel Acosta

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-3017
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
$231,930.00 in United States Currency, *
*
Defendant, *
*
Bartosz Kupczyk, *
*
Claimant - Appellant. *
___________
Submitted: March 10, 2010
Filed: August 5, 2010
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Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
___________
SMITH, Circuit Judge.
Bartosz Kupczyk was stopped for speeding on an interstate in Nebraska, and
police seized $231,930 from his car. The government initiated an in rem forfeiture
action in district court, and Kupczyk moved to suppress the seized currency. The

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1The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
2The Honorable David L. Piester, United States Magistrate Judge for the
District of Nebraska.
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district court, 1 adopting the magistrate judge's 2 report and recommendation, found that
probable cause existed to stop the car and that Kupczyk consented to the search. On
appeal, Kupczyk renews the argument that his Fourth Amendment rights were
violated, specifically arguing that the district court erred in denying his motion to
suppress by finding that (1) there was probable cause to stop the car; (2) Kupczyk was
not illegally seized before the search commenced; and (3) Kupczyk voluntarily
consented to the search. We affirm.
I. Background
At approximately 3:30 p.m. on February 4, 2008, Kupczyk traveled westbound
in a silver Dodge Charger on Interstate 80 just east of Lincoln, Nebraska. Also
traveling westbound at approximately the same location was Seward County,
Nebraska Sheriff's Deputy Randy Brown. Deputy Brown was traveling near the speed
limit, 75 m.p.h., in a marked patrol vehicle and passed Kupczyk's vehicle.
Deputy Brown testified that when he passed Kupczyk, Kupczyk stared at him
for some time and swerved his vehicle so far to the right that Deputy Brown thought
it might leave the roadway. Deputy Brown continued his pass and continued
westbound. Deputy Brown testified that he did not stop the Dodge Charger at the time
of the swerve because they were not in Seward County but that he intended to stop the
Dodge if Kupczyk continued to drive erratically.
Approximately eight minutes later, Deputy Brown telephoned Seward County
Sheriff's Sergeant Mike Vance and reported that he passed a westbound Dodge
Charger being driven by a nervous driver. Deputy Brown continued west to mile

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marker 388, just inside Seward County, and parked his patrol unit in the median to
observe the Dodge Charger and see if Kupczyk continued to drive erratically. When
Kupczyk passed with the flow of traffic, Deputy Brown noticed that the Dodge
Charger had Illinois license plates. Kupczyk did not appear to be speeding and he was
not driving erratically. Deputy Brown stayed at his location. He then heard a radio
dispatch that Sergeant Vance had stopped a vehicle with Illinois plates going
westbound for speeding. Deputy Brown proceeded to mile marker 379, the reported
site of the stop, to assist.
Sergeant Vance testified that he had been operating his radar unit on westbound
traffic at approximately mile marker 379 for a short time when he noticed a silver or
gray car approximately a mile away approaching him and passing another car. He
thought that the gray or silver car was speeding and directed his radar unit to it. The
unit displayed that the car was traveling at 83 m.p.h., eight miles over the speed limit
at that location. Sergeant Vance testified that the driver, Kupczyk, glanced over at him
as he passed. Sergeant Vance "locked in" the speed reading and pulled his patrol unit
out into the traffic lanes to stop Kupczyk. Kupczyk kept traveling westward without
slowing until he pulled over to the shoulder approximately one mile later.
Sergeant Vance approached the Dodge Charger and requested Kupczyk's
driver's license and registration after explaining that he had been stopped for speeding.
Kupczyk handed over his license and car rental agreement and remained silent.
Sergeant Vance returned to his cruiser to check the documents. When the documents
came back clear, Vance wrote a warning citation while still in his police cruiser.
Sergeant Vance then returned to the Dodge Charger and asked Kupczyk to exit
his vehicle while Sergeant Vance explained the warning to him. Kupczyk complied.
Standing between the two vehicles, Sergeant Vance explained the warning to Kupczyk
and gave him back his driver's license and the rental agreement. Reserve Officer
Janice Vance—Sergeant Vance's wife—was standing nearby, as was Deputy Brown,

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3The magistrate judge reviewed the tape of the stop and concluded that Sergeant
Vance actually said, "You're good."
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who had arrived at the scene. All three officers were within a few feet of Kupczyk.
Deputy Brown inquired into Kupczyk's travel plans and asked Kupczyk what he had
in the car, to which Kupczyk replied that he had a laptop and one piece of luggage.
Following his explanation of the warning citation, Sergeant Vance testified that
he said, "You're good to go."3 Immediately thereafter, however, Sergeant Vance said
to Kupczyk, "I'd like to ask you a couple more questions" or "You mind if I ask you
a couple more questions?" Kupczyk answered, "Yes you may." Sergeant Vance asked
him standard interdiction questions, such as whether he possessed any weapons,
drugs, large amounts of United States currency, or anything illegal in the car. Kupczyk
answered, "No, I do not" or "No" to each question.
Sergeant Vance testified that he then asked Kupczyk if he could search the
vehicle. Kupczyk answered, "If you'd like to. I mean, I'm fine." Sergeant Vance then
stated, "If you would, just step back there . . . go ahead and have a seat in the back seat
so you can stay warm." Sergeant Vance then directed Kupczyk to the rear of his patrol
unit.
The officers began searching the automobile and soon found the $231,930 in
United States currency in Kupczyk's bag located in the trunk. Kupczyk made no effort
to stop the search at any time during its progress.
Kupczyk filed a motion to suppress all evidence and statements obtained as a
result of this traffic stop, claiming Fourth Amendment violations. After conducting
a suppression hearing, the magistrate judge recommended the denial of the motion to
suppress, finding that probable cause existed to stop Kupczyk's car for speeding and
that Kupczyk consented to the subsequent search after completion of the stop.

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The district court adopted the magistrate judge's report and recommendation.
On August 20, 2009, the district court entered a conditional final order of forfeiture,
pending Kupczyk's appeal of the district court's denial of his motion to suppress.
II. Discussion
On appeal, Kupczyk argues that the district court erred in denying his motion
to suppress by finding that (1) there was probable cause to stop the car; (2) Kupczyk
was not illegally seized prior to the search of the car; and (3) Kupczyk voluntarily
consented to a search of the car.
A. Probable Cause
Kupczyk relies primarily upon the expert testimony of Dr. Ted Sokol to support
the argument that the officers lacked probable cause. Dr. Sokol, an accident
reconstruction specialist, made measurements and calculations to determine Kupczyk's
speed at the time of the stop by viewing the police video. Kupczyk contends that the
district court erroneously rejected Dr. Sokol's testimony for failure to supply the
government notice, a violation of Federal Rule of Civil Procedure 26(a)(2). Kupczyk
submits that Dr. Sokol's testimony constitutes impeachment evidence, which is outside
the purview of Rule 26(a)(2). Kupczyk also argues that the district court, by not
accepting Dr. Sokol's testimony, erroneously concluded that Sergeant Vance's
testimony was not impeached.
The government responds that Kupczyk offered Dr. Sokol's testimony only as
rebuttal evidence, not for impeachment purposes. The government thus contends that
Kupczyk offered Dr. Sokol's testimony not to show that Sergeant Vance was not
truthful but instead to show that Dr. Sokol's superior evidence indicates that Kupcyzk
drove slower than the officer's instrument recorded. The government maintains that
Kupcyzk sought to refute Sergeant Vance's testimony that Kupczyk was driving 83
m.p.h., which is rebuttal evidence, not impeachment. However, under this view, the
government asserts that whether Dr. Sokol's testimony was for impeachment purposes

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or rebuttal evidence is immaterial because his testimony does not impeach Vance's
testimony about Kupczyk's speed, which was above the legal limit.
When reviewing an order denying a motion to suppress under the Fourth
Amendment, as here, "[w]e review the district court's factual findings under the
clearly erroneous standard and its conclusion as to whether a violation of the Fourth
Amendment has occurred de novo." United States v. Lebrun, 261 F.3d 731, 733 (8th
Cir. 2001). We will affirm the denial of a suppression motion unless we find "that the
decision is unsupported by the evidence, based on an erroneous view of the law, or the
Court is left with a firm conviction that a mistake has been made." United States v.
Madrid, 152 F.3d 1034, 1037 (8th Cir. 1998) (internal quotations and citation
omitted).
At the outset, we note that Dr. Sokol actually testified—the district court simply
chose not to credit the testimony as Kupczyk would have preferred. Dr. Sokol testified
that he had visited the site of the stop and had performed various measurements and
calculations. Dr. Sokol concluded that Kupczyk's vehicle, at the time it passed
Sergeant Vance's vehicle parked in the crossover on I-80, was traveling 77.6 m.p.h.
Dr. Sokol had no measurements for the speed of the vehicle before it reached the point
in the highway opposite the crossover, but he relied on the testimony of Sergeant
Vance that the vehicle had not slowed until it pulled over onto the shoulder of the
roadway.
An officer must have an objective and reasonable belief that he has observed
a traffic offense (or other crime) to legally stop a vehicle. Scott v. United States, 436
U.S. 128, 137 (1978); see also United States v. Woodall, 938 F.2d 834, 837 (8th Cir.
1991). Sergeant Vance testified that he had been certified in the use of the type of
radar machine used. He testified that he tested the radar machine at the start of his
shift that day and determined that it was functioning properly and provided proper
documentation. Sergeant Vance then testified that his radar unit reported Kupczyk

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traveling at 83 m.p.h. This gave Sergeant Vance an "objectively . . . reasonable basis
for believing that [Kupczyk] ha[d] breached a traffic law," which gave Sergeant Vance
"probable cause to conduct a traffic stop." United States v. Coney, 456 F.3d 850, 856
(8th Cir. 2006) (internal quotations and citation omitted).
"It is well settled that any traffic violation, however minor, provides probable
cause for a traffic stop." United States v. Martinez, 358 F.3d 1005, 1009 (8th Cir.
2004) (internal quotations, alteration, and citation omitted). An officer's subjective
suspicions of other illegal conduct do not invalidate that proper probable cause. Whren
v. United States, 517 U.S. 806, 810–13 (1996) (holding that traffic stops based on
probable cause are valid even if the officer stopping the vehicle suspects that the
occupant is engaged in other illegal activity).
Kupczyk's evidence did not prove that he was not speeding; instead he offered
only evidence that Sergeant Vance was wrong about how much Kupczyk exceeded
the 75 m.p.h.-speed limit. Dr. Sokol, Kupczyk's own witness, testified Kupczyk was
traveling 77.6 m.p.h. when he passed Sergeant Vance. Even assuming Dr. Sokol was
correct, a traffic violation occurred, creating probable cause. The district court chose
not to credit Dr. Sokol's testimony and did credit Sergeant Vance's testimony. This is
not clear error. "The district court's credibility determinations are entitled to great
deference." United States v. Lopez, 564 F.3d 1001, 1003 (8th Cir. 2009) (internal
quotations and citation omitted).
B. Illegal Seizure
Kupczyk next argues that if there was probable cause to make the stop, the
officers nonetheless violated his Fourth Amendment rights because they illegally
seized him before he consented to the search of his car. Kupczyk asserts that this
illegal seizure taints any subsequent consent, even if that consent could otherwise be
deemed to be "voluntary."

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The government responds that Kupczyk freely consented to the search and that
the three officers present made no threats or promises, never touched Kupczyk, did
not prevent him from leaving, and always used a conversational tone of voice in
obtaining voluntary consent.
"The ultimate determination of whether a seizure occurred is a question of law
which we consider de novo." United States v. White, 81 F.3d 775, 779 (8th Cir. 1996).
"It is well established that not all personal contacts between law enforcement officers
and citizens constitute 'seizures' for Fourth Amendment purposes." Id. (citing Terry
v. Ohio, 392 U.S. 1, 19 n.16 (1968)).
A seizure does not occur simply because a law enforcement officer
approaches an individual and asks a few questions or requests permission
to search an area—even if the officer has no reason to suspect the
individual is involved in criminal activity—provided the officer does not
indicate that compliance with his request is required.
Id. (citing Florida v. Bostick, 501 U.S. 429, 434–35 (1991)).
If a reasonable person would feel free "to disregard the police and go about his
business," the encounter is consensual and implicates no Fourth Amendment interest.
Bostick, 501 U.S. at 434 (internal quotations and citation omitted). During a
consensual encounter, "[t]he person approached . . . need not answer any question put
to him; indeed, he may decline to listen to the questions at all and may go on his way."
Florida v. Royer, 460 U.S. 491, 497–98 (1983) (plurality opinion).
Kupczyk contends that he was seized before Sergeant Vance requested consent
to search his car. Kupczyk asks us to look at the objective actions of Sergeant Vance
and his deputies, rather than Kupczyk's words giving consent. In support, Kupczyk
relies almost exclusively on the unpublished district court decision of United States
v. Christy, No. 8:07CR238, 2008 WL 753888 (D. Neb. March 19, 2008)

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(unpublished). His reliance is misplaced. In White, a case involving a similar
encounter with several police officers, we stated that
[a]lthough there is no litmus test for determining when an encounter
becomes a seizure, we have noted that circumstances indicative of a
seizure may include the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the person
of the citizen, or the use of language or tone of voice indicating that
compliance with the officer's requests might be compelled.
81 F.3d at 779 (internal quotations and citations omitted).
As in White, the officers detaining Kupczyk displayed no weapons during the
exchange, and the tone of the exchange was cooperative. Id. Though three officers
were present, only one had the primary contact with Kupczyk, as with the defendant
in White. Id. Again, similar to the situation in White, at the time the officer asked to
search Kupczyk's car, Kupczyk could have lawfully proceeded on his journey. Id. We
conclude, therefore, as we did in White, that the trooper's "request to search came
during the course of a consensual encounter and was permissible with or without
reasonable suspicion." Id.
Christy is not only not controlling authority, but it is not even particularly
persuasive given its very different facts. In Christy, it was a full 11 minutes before the
officer ran the defendant's license and registration (something that happened almost
immediately in this case). 2008 WL 753888, at * 3. Then, at the 13-minute mark, the
officer gave the defendant a warning. Id. The officers continued to question the
defendant, and it was nearly 27 minutes before the officers requested permission to
search the car. Id. Here, Sergeant Vance requested consent to search the car 15
seconds after returning Kupczyk's license.

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Kupczyk was ordered out of his vehicle and told to stand on the side of the road
while Sergeant Vance completed his duties. Sergeant Vance did not ask Kupczyk to
exit his vehicle until after Sergeant Vance ran Kupczyk's license and registration and
had completed a warning citation. Sergeant Vance then went back to Kupczyk's
vehicle and asked him to step out and come to the area between Kupczyk's vehicle and
Sergeant Vance's patrol car. There, Sergeant Vance explained the warning citation to
Kupczyk. "An officer making a traffic stop does not violate the Fourth Amendment
by asking the driver his destination and purpose, checking the license and registration,
or requesting the driver to step over to the patrol car." United States v. Linkous, 285
F.3d 716, 719 (8th Cir. 2002). These facts do not show that Sergeant Vance
unconstitutionally extended the legal traffic stop.
Also, the presence of three officers, alone, does not make the encounter a
seizure, and Sergeant Vance had no duty to tell Kupczyk that he could deny the
request to search. "There is no per se requirement that an officer inform a citizen of
his right to refuse consent, and there is no presumption that consent is invalid where
given without an explicit notification of the right to refuse." United States v. Vera, 457
F.3d 831, 835 (8th Cir. 2006).
C. Voluntary Consent
Finally, Kupczyk argues that if there was probable cause, and if he was not
illegally seized, that he still did not give consent to have his car searched. Kupczyk
acknowledges that he told Sergeant Vance that he could search the car, but he
maintains that the officers coerced his consent.
The government responds that the totality of the circumstances show that
Kupczyk gave knowing and intelligent consent to allow the officers to search his car
because the encounter was brief, occurred on a public interstate, Kupczyk gave direct
and responsive answers to Sergeant Vance, and Sergeant Vance did not arrest
Kupczyk or make any threats to him. Also, Kupczyk, never objected to the search.

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"We review the district court's determination of whether a voluntary consent to
a search was given under the clearly erroneous standard." United States v.
Galvan-Muro, 141 F.3d 904, 907 (8th Cir. 1998). The government must show from
the record that Kupczyk gave his consent. "When a prosecutor seeks to rely upon
consent to justify the lawfulness of a search, he has the burden of proving that the
consent was, in fact, freely and voluntarily given." Bumper v. N.C., 391 U.S. 543, 548
(1968). Consent is voluntary if it was "the product of an essentially free and
unconstrained choice by its maker[,]" Schneckloth v. Bustamonte, 412 U.S. 218, 225
(1973), rather than "the product of duress or coercion, express or implied." Id. at 227.
The voluntariness of the defendant's consent is a "question of fact to be determined
from the totality of all the circumstances." Id.
In examining the environment in which consent was given, we ask whether the
person who consented:
(1) was detained and questioned for a long or short time; (2) was
threatened, physically intimidated, or punished by the police; (3) relied
upon promises or misrepresentations made by the police; (4) was in
custody or under arrest when the consent was given; (5) was in a public
or a secluded place; (6) either objected to the search or stood by silently
while the search occurred.
United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990) (internal citations
omitted).
After Sergeant Vance asked if he could search Kupczyk's vehicle, Kupczyk
responded, "If you'd like to. I mean, I'm fine." Kupczyk concedes that he gave legally
sufficient consent; his argument is that the consent was not voluntary. Sergeant Vance
detained Kupczyk only long enough to perform his traffic stop and did not ask
repetitive, unnecessary questions. Police obtained Kupczyk's consent in the daylight
on the shoulder of the interstate. The video of the traffic stop demonstrates Sergeant

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Vance's tone was conversational, and he and the other officers never threatened
Kupczyk or brandished weapons. Kupczyk was not in custody or under arrest when
he gave his consent. Kupczyk's tone was cooperative and he gave answers without
hesitation. Kupczyk made no effort to limit or stop the search once it began.
Considering the totality of the circumstances, we hold that Kupczyk, a
competent adult, consented to the search of his car after a valid traffic stop.
III. Conclusion
We affirm the district court's denial of Kupczyk's motion to suppress.
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