USA v. Kevin Dipirro

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13550
Non-Argument Calendar
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D.C. Docket No. 6:15-cr-00025-ACC-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN DIPIRRO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 18, 2016)
Before WILLIAM PRYOR, JULIE CARNES, and FAY Circuit Judges.
PER CURIAM:
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Following a bench trial, Defendant Kevin Dipirro was found guilty of being
a felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1). The firearm
was found after Defendant was pulled over for a violation of Florida Statute
§ 316.410 (not having a tail lamp illuminating the rear registration plate of his
motorcycle). Prior to trial, Defendant moved to suppress the evidence found
during the traffic stop, on the grounds that the statute was void-for-vagueness and
that the officer lacked probable cause1 for the traffic stop. After Defendant
proffered the testimony of an expert, the Government moved to exclude the
expert’s testimony. The district court granted the Government’s motion, and later
denied Defendant’s motion to suppress. On appeal, Defendant asserts that,
because the expert would have directly undermined the credibility of the arresting
officer, the district court abused its discretion by excluding the expert’s testimony.
After careful review, we affirm.
I. BACKGROUND
On an evening in November 2014, Trooper Mitchell Henderson of the
Florida Highway Patrol initiated a traffic stop of three motorcyclists, including one
operated by Defendant, because the motorcycles did not have visible lights
1 Though Defendant only references probable cause, we note that a traffic stop is “constitutional
if it is either based upon probable cause to believe a traffic violation has occurred or justified by
reasonable suspicion in accordance with” Terry v. Ohio, 392 U.S. 1 (1968). See United States v.
Harris, 526 F.3d 1334, 1337 (11th Cir. 2008).
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illuminating their registration plates, in violation of Florida Statute § 316.410.2
Trooper Henderson obtained Defendant’s identification and later learned that he
had a suspended driver’s license and an active state warrant for his arrest.
Defendant was placed under arrest, and admitted that he was in possession of a
firearm. Law enforcement located a pistol containing six rounds of ammunition in
Defendant’s boot. Defendant later admitted that he was a convicted felon. A
federal grand jury subsequently issued an indictment charging Defendant with
being a felon in possession of a firearm, in violation of §§ 922(g)(1), 924(a)(2).
Defendant moved to suppress the evidence obtained during the traffic stop.
He first argued that Florida Statute § 316.410, which provides in relevant part that
a tail lamp “shall be so constructed and placed as to illuminate with a white light
the rear registration plate and render it clearly legible from a distance of 50 feet to
the rear,” was void-for-vagueness because it left too much discretion to the officer
regarding the meaning of “clearly legible.” See Fla. Stat. § 316.410(2). Relying
on a study from the University of Iowa, Defendant asserted that a motorcycle
license plate was likely not legible from a distance of 50 feet. Finally, he argued
that Trooper Henderson lacked probable cause to believe a traffic violation had
2 The facts related to the initiation of the traffic stop are taken from the testimony at the
suppression hearing, viewed in the light most favorable to the party that prevailed in that
proceeding, which here is the Government. See United States v. Bautista-Silva, 567 F.3d 1266,
1271 (11th Cir. 2009); United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir. 2008). The facts
related to the discovery of the firearm come from facts the parties stipulated to at the bench trial.
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occurred because Defendant could establish that his tail lamp was illuminating his
registration plate.
The Government subsequently filed a motion to exclude Defendant’s
proffered expert, Dr. Charles Johnson of the University of Iowa. Defendant
proffered that the expert would testify that “only an extremely small percentage of
humans would have the visual acuity/ability to read the alpha-numeric symbols on
a Florida License plate at a distance of 50 feet to the rear at night.” The
Government asserted that this proposed testimony was not relevant to Defendant’s
vagueness argument. Moreover, the fact that a “small percentage of humans”
could read the license plate at night from a distance of 50 feet undermined
Defendant’s argument that the license plate would not be legible under such
circumstances. Given that Defendant’s proffered expert would testify that a
motorcycle license plate would be legible to some individuals, he could not show
that § 316.410 was “grossly and flagrantly unconstitutional,” and thus he was not
entitled to suppression of the evidence on his vagueness challenge.
Defendant responded that the expert’s testimony regarding the near
impossibility of an illuminated Florida license plate being clearly legible at night
from 50 feet away was relevant to whether § 316.410 was “grossly and flagrantly
unconstitutional.” He also maintained that the expert’s testimony was relevant
because this patent flaw went to the very essence of Trooper Henderson’s reliance
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on § 316.410’s clearly legible standard for asserting probable cause to believe a
traffic violation had occurred.
The district court granted the Government’s motion to exclude the expert
testimony, concluding that it would not decide the constitutionality issue because
the exclusionary rule does not apply when an officer obtains evidence pursuant to a
statute that is later found to be unconstitutional. To the extent Defendant also
sought to argue that the statute was grossly and flagrantly unconstitutional, the
district court rejected this argument because it was not presented in Defendant’s
initial motion to suppress and Defendant was not permitted to amend his
suppression motion by way of a response to the Government’s motion to exclude.
Defendant moved for reconsideration, and the district court denied his
request. Following a suppression hearing, the district court denied Defendant’s
motion to suppress. Of relevance, the district court found Trooper Henderson’s
version of events credible and ultimately determined that he had probable cause to
believe that a traffic violation had occurred. Defendant waived his right to a jury
trial, and was found guilty at a bench trial based on facts stipulated to by the
parties. This appeal followed.
II. DISCUSSION
When reviewing the denial of a motion to suppress, we review the district
court’s legal conclusions de novo, and its findings of fact for clear error. United
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States v. Hollis, 780 F.3d 1064, 1068 (11th Cir. 2015). We review the district
court’s decision to exclude expert testimony for abuse of discretion. Id. However,
we review an argument raised for the first time on appeal for plain error. United
States v. Johnson, 777 F.3d 1270, 1274 (11th Cir. 2015).
The Federal Rules of Evidence do not apply with full force at suppression
hearings. Fed. R. Evid. 104(a), 1101(d); see also United States v. Matlock, 415
U.S. 164, 175 (1974). The Supreme Court has further explained that in
proceedings where the district court is considering the admissibility of evidence, it
should receive the evidence and give it such weight as the court’s experience and
judgment counsel. Matlock, 415 U.S. at 175.
Defendant argues on appeal that the district court abused its discretion by
excluding the expert testimony because it would have directly undermined Trooper
Henderson’s credibility as to whether he had probable cause to believe a traffic
violation had occurred. The Government asserts that we should review this
argument for plain error because Defendant never offered the expert’s testimony
for the purpose of undermining Trooper Henderson’s credibility, but had instead
offered the expert’s testimony to call into question the constitutionality of
§ 316.410. In his response to the Government’s motion to exclude, Defendant
asserted that the expert’s testimony—regarding the near impossibility that an
illuminated Florida motorcycle license plate would be clearly legible at night from
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a distance of 50 feet—was relevant to the issue of whether § 316.410 is “grossly
and flagrantly unconstitutional.”3 However, Defendant also stated that the expert’s
testimony was relevant to determining whether Trooper Henderson had probable
cause to believe a traffic violation had occurred. Indeed, Defendant asserted at the
suppression hearing that he was prejudiced by the exclusion of the expert because
the expert’s testimony would have enabled him to call into question the officer’s
credibility. Though Defendant could have more artfully articulated that the
expert’s testimony would be relevant to evaluating Trooper Henderson’s
credibility, we need not determine whether Defendant sufficiently raised this
argument because Defendant cannot prevail regardless of whether this argument is
reviewed for plain error or abuse of discretion.
Trooper Henderson issued a citation to Defendant for violating § 316.410
because his motorcycle did not have a white light illuminating the registration
plate.4 He also testified that he initiated a traffic stop of Defendant and the other
motorcyclists because none of them had visible white lights on their registration
3 Both the Government and the district court addressed the expert’s proffered testimony solely
with respect to Defendant’s constitutional argument.
4 Though neither of the parties mention it, we note that Trooper Henderson testified that
Defendant violated § 416.310(2) because his motorcycle did not have a white light on the
registration tag, so that he could read it, but the actual citation says that Defendant violated
§ 316.410(1) for “MOTORCYCLE TAILLAMPS – NO/IMPROPER, IMPROPER TAIL LAMP
NO WHITE LIGHT UNABLE TO SEE TAG.” While there is some discrepancy as to the correct
subsection of the statute, Trooper Henderson’s reason for initiating the stop is the same: no white
light, so he could not see the tag.
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plates and he told Defendant he was being stopped because his tail lamp did not
have an illuminated white light, so Trooper Henderson could not read the plate.
Thus, Defendant would have violated the statute by not having a light, regardless
of whether Trooper Henderson could see or not see the registration plate from a
distance of 50 feet away at night. See Fla. Stat. § 316.410 (“(1) Every
motorcycle . . . shall have at least one taillamp. . . . (2) Either a taillamp or a
separate lamp shall be so constructed and placed as to illuminate with a white light
the rear registration plate and render it clearly legible from a distance of 50 feet to
the rear.”).
Moreover, Defendant proffered that the expert would testify that a Florida
motorcycle license plate “would not be legible at night when illuminated with a
white light at a distance of 50 feet to the rear for any human except fighter pilots
who are known to possess a visual anomaly which enable them to see at night in
ways that other humans cannot.” This testimony, however, would have had no
bearing on Trooper’s Henderson’s reason for initiating the traffic stop, or whether
Defendant’s motorcycle had a white light in the first place. See Matlock, 415 U.S.
at 175; cf. United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985) (“Expert
testimony not relevant to any issue in the case and which would not assist the jury
had to be excluded.”). Because the expert’s testimony was not relevant to
assessing Trooper Henderson’s credibility, the district court did not abuse its
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discretion by excluding it. See United States v. Cross, 928 F.2d 1030, 1049 (11th
Cir. 1991) (“A trial court has wide discretion in determining whether the exclude
expert testimony, and its action will be sustained on appeal unless ‘manifestly
erroneous.’”).
AFFIRMED.
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