Legal Case Summary

The honorable, the judges of the United States Court of Appeals for the Fourth Circuit. Oye, Oye, Oye, Oye, Oye, all persons having any manner or form of business before the honorable, United States Court of Appeals for the Fourth Circuit are admonished to draw the committee or your attention for the court is now sitting. God save the United States and this honorable court. Please be seated. Good morning and we will hear oral argument in our first case momentarily. First I would like to thank William and Mary for inviting us here this morning visiting law schools is one of the more pleasant assignments that we have. And so we appreciate the invitation and we also appreciate the willingness of the attorneys to accommodate us in this endeavor. We are ready for argument in United States versus a wingle. Good morning. May please the court. My name is Peter Alites and I represent the appellant in this case Kenneth a wingle. The relevant facts of this case are as follows. In the early morning of September 2, 2012, Mr. Wingle along with his passenger was driving on Route 36, which is in Prince George County and also fronts the Fort Lee military base. That particular area is designated as having concurrent jurisdiction both with Prince George County and Fort Lee

. At the Syskiski Gate of Fort Lee but still on Route 36, Officer Michaels of the Fort Lee military police pulled up beside Mr. Wingle where both vehicles were stopped. This is a four lane highway. There are two lanes that go eastbound and two lanes that go westbound. They are divided by a median strip. Officer Michaels was in the right lane of the eastbound Route 36 and my client Mr. Wingle was in the left lane of that of the eastbound lanes. Both vehicles after the light turned green pulled off from that light and the evidence in this case was that initially Mr. Wingle pulled ahead of Officer Michaels on Mark Cruiser. Councillor, we're going to generally be from a year with the facts. Yes sir. You can argue it however you wish but I'm not sure that a lengthy recitation of the facts would help you in terms of the legal arguments. Yes sir. You do what you want

. It relates to the argument, the relevant facts then would be that Officer Michaels testified that at some point when he was alongside the vehicle of Mr. Wingle that he noticed some bluish white light coming from Mr. Wingle's vehicle which he thought might be indicative of cell phones being used and perhaps of texting being done by either the passenger or the driver and then he testified the officer did that at some point Mr. Wingle's car drifted towards his vehicle. Officer Michaels testified that because of that drift he had to hit his brakes in his words in order to avoid the potential for there being some sort of collision. Is there a factual dispute here? Of that particular incident no you're wrong there's not. But when... In fact some of it was captured on the mounted cameras. That's correct. That's correct and when we were talking about in this case what this court has available to it and looking at whether or not there was clear error on the part of the trial court when you consider those facts you have the video in the video in my mind other than for that brief period of time where Officer Michaels said the camera could not pick up anything because it was a front mounted camera and couldn't get Mr. Wingle when he was on his side. I think that the video absolutely speaks for itself and it's strong evidence and obviously it was introduced and it's found in volume two of our joint appendix

. The magistrate judge made a number of factual findings which is what I think we're reviewing here including a finding of credibility with the police officer testifying. Are you challenging his credibility finding? Your Honor not so much his credibility but perhaps how he explained what happened versus what you see on the camera. And quite frankly I would be in some ways with great respect challenging judge Novak's finding at the magistrate court level when he made his findings a fact. I'd ask if you were asserting a factual dispute and it seems as though you are in what specifically is that which I think may be part of the judges question. The the minor factual disputes that I would have with judge Novak's findings are that he said that the defendant's car swerved. He used that term a couple of times swerved towards the officers cruiser that was never the testimony by officer Michael's the only word that he used was drift and that it was a slow drift. You're under the really weren't a whole lot of factual disputes it really came down to in the end judge Novak trying to find what it was that officer Michael stopped Mr. Wingle for. Well it really comes down to how you view these facts what do you take these facts to mean in terms of creating an opportunity if it existed for the officer to stock. Under these circumstances given the nature of the texting statute you couldn't at least from my understanding you couldn't stop him for texting at that time because it's a secondary offense. So then you are left to determine what do those facts mean drifting toward the line and the question I really have for you if the video which we would tend to think might be something unless it's tampered with might present what one would call objective evidence. In the face of evidence by the officer and his perception his objective perception which one controls in determining whether he had an articulable suspicion of stock. The video would control in my mind judge it's it's there and there's it's been introduced there's absolutely nothing surrounding that video that would suggest it being tampered with by anybody. And it is part of this right

. The video or because of the subjectivity of the officer. I'm sorry, Joseph. Is it because you consider the video to be much more objective and that's what's needed or with the subjective knowledge or the subjective belief of the officer control. It's because it's it's objective you get to see when we're looking to see if there is some reasonable articulable suspicion that has to be objective. Is articulated you look at the video and you see you see what happened and so when we use it order for the video to control you that articulation presupposes the conflict between the video and the test. Correct correct. And the explanation that the officer gave at the suppression hearing is that the video because of the way the video cameras were mounted they only saw they captured only a limited portion of what occurred. So specify for me please where you see the conflict occurring between what is reflected in the video and the officers testimony. The conflict is when you watch the video you do not see any type of maneuver by the officer and and in mind you that this is on the officer's cruiser that he is that he's operating the video. How to see movement on the part of the officer if the camera is mounted on the front of the car. Judge his testimony was that he had to suddenly break and I believe again the the magistrate judges findings a fact where that the officer actually had to swerve to miss Mr. Wingel's vehicle that is not on the video you see the very slightest of breaking. And you see the the first you see of Mr. Wingel's car is that it is in the center of his travel lane now granted the officer said that the drifting may have happened prior to the camera picking it up but it's important to note and I think that the video would be supportive of this for the for the appellant in this case

. That there was no swarming you see that you see the camera and smooth pursuit mounted on this vehicle there's no and there's no sudden break. It's an argument I take it you made to the magistrate judge. Yes sir. And the magistrate judge took all the evidence and decided against you set out the reasons for that decision. So your argument now has to be that that finding was clearly around it's yes sir. It is which is usually a fairly high hill to climb. I understand that judge and and but I think in this case because we have the video it can be climbed and and I think that in this particular case if you watch. If you read in essence judge novac's examination of Mr. Wingel which is throughout this hearing he's attempting to find what it is that we have that might violate the the fourth amendment to the Constitution judge when stated earlier I think that judge novac was convinced early on that under one is seven eight point one. Title 46 point two of the Virginia code that the officer could not have stopped him if it were just for the texting so when judge novac went further. Virginia versus more since this is a case of a federal jurisdiction on state jurisdiction what difference does that. Just I think it's distinguishable in this case if you look at the the indictment you'll see that that for the count that dealt with the texting the government assimilated through the code of federal regulations that particular code section dealing with with texting that particular code section has three sub parts and one of its sub parts. The other part of the government is the specific mandate by the legislature that you can't charge this you can't even stop it doesn't say you just can't arrest someone for it says you cannot stop somebody unless there is some other offense it was not a primary offense at the time and my argument would be among others that the government can't cherry pick that statute if you've assimilated it and you've charged this defendant under it and you've got to you've got to abide by it and that's that argument that's in your brief. Judge we argue in there that more didn't didn't apply and we cited several cases as to why we thought that in this case that this is a substantive law it's all encompassing and of course we cited specifically the subsection C that said that the stop couldn't have been made under one of seven eight point one if that were the only offense and that's what let us down the road in that hearing to questions about what was the other bad driving and when asked repeatedly by me the officer said that there really was no other bad driving than the inattentiveness was his word inattentiveness by by Mr

. Wingle and I think it was as related to the the looking down at a phone and the and the text traffic citation for reckless driving is that correct no sir that's right because he got to do why yes but he for fair to maintain his lane yes sir and what else was in charge of it fair to maintain lane texting while driving driving under the influence of alcohol possession of marijuana and obstruction of justice were the four five charges by that he would have charged him with reckless driving but he viewed that as being countermanded in this case because of the UI charge that was his testimony which I would suggest to the court and did in my my brief is is a mistake of law even when judge Novak ended up agreeing with him in his opinion inciting I believe it was 19 to to 94.1 but even if he made a mistake of law we really haven't gotten to what was the reasonable or particular suspicion for him to make the stop and if he thought that there was reckless driving but he made a mistake in the charging wouldn't that have fulfilled the condition preceded for the reasonable suspicion to make the stop I can't disagree with that judge I think it would but I want to point to the court the multiple times multiple times when asked by the court multiple times and by me officer michael's repeatedly said that he had a real problem with this being considered reckless driving he was he was kind of guided there if you will by the magistrate judge but when he was asked for the basis for his for his stop by capnathams he said in a tent of driving drifting and texting and he said that on two different occasions then he admitted there's really no statute for specifically for in a tent of driving and then he was asked by the court judge he said but you the court asked but you didn't charge him with that right talking about reckless driving no sir I didn't feel it warranted a reckless driving ticket and then the officer later said I felt that the closest charge that I would have been able to use on this would have been the failing to maintain the lane of travel that's the closest it comes to physically what he did on the highway does that matter I think it's the officers subjective view determined it it's not determined it but in this case we the bottom line is that we have to find some sort of violation on the highway of a statute some sort of motor vehicle violation and I think I hope that we can agree that standing alone we don't have the texting there's a relative I think a pretty strong concession by by the government and I think judge Hudson may have addressed it that on the failure to maintain lane of travel the officer at some point even admits that he doesn't think that the the statute covers that because he could never say no matter how hard the officer was pressed at this hearing that Mr. Wingle came into his lane and that didn't have to do with whether or not it was caught on camera this was officer Michaels testimony saying that I cannot I cannot say that the car crossed over the lane you have had Hudson's review here affirming the man majesty's order and we've been going back and forth in terms of what the majesty did in the underlying order and what Hudson did of course as Hudson starts out and basically indicates well you've got the secondary offense and he says how that logic is the logic that a secondary offense is may not be used initially a traffic is inconsistent with Supreme Court for a second precedent he doesn't go on that basis but you can tell from his order that sort of influences where he goes and he says for three grounds here upon which he says that it exists but one of the things that he does make a determination of in this order he says essentially that the officer says he stopped him for texting and he never mentioned to him anything about drifting he didn't mention that you know he was stopping him for reckless driving or for in a tent he stopped him for texting and if that is so evidence in a case based upon at least the Virginia law at that time which is changed as I understand that may not have been a basis to stop him so then it comes along the inattentiveness and inattentiveness is then elevated to some form of recklessness which I'm concerned at least in terms of what does that mean is inattentive driving because records driving Virginia is pretty serious stuff and if inattentiveness and you never get out of the lane it's clear he never got out of the lane I mean that second ground is just great the third ground that just touching brought up about leaving the lane is really kind of not there but how do you view this in terms of the officers in national testimony and his basic reason for giving a stop was to text without ever mentioning the inattentiveness even though inherent it seems texting while driving in terms of the way he's doing it and you are inattentive. Judge my time is up now please answer your question. I think it was interesting as you point out that Judge Hudson disagreed with with Judge Novak when it came to whether or not the officer could could stop solely based on texting and Judge Hudson's opinion and I'm sure you know was that officer Michaels could even if it was just to warn Mr. Wangle of the dangerousness of this inattentiveness. I of course completely disagree with that as we start off. I guess at that point he's saying that you can there's an articulable suspicion that's going to be important to something that's a secondary statute. I don't know what secondary means if you can stop into one. Correct. And I don't quite understand the secondary business in Virginia anyway and apparently it's been cured but at least at that time that's the way it was. And I would agree with the court also that when we don't have that and I don't think that standing alone we've got the officer had the right to stop based on the texting then it was just a matter of trying to backfill with the facts we have and the facts just aren't there both from the video and from as the court points out and I said earlier that officer Michaels was unable to say at any point that this car ever drifted from its lane made any other maneuvers. I asked him specifically was there a bear driving was there any form of reckless driving any weaving anything of that nature and the officer answered that in the negative. Mr

. Lee, Billy otters here. Your time is. Thank you. As it expired and you have some time for a bottle. Thank you. Thank you. Good morning. May I please the court. Catherine Adams representing the United States. Judges what the appellant is asking you to do is to overrule your court's own precedent and to overrule the Supreme Court's precedent and to also make a finding of clearly erroneous facts by the trial judge facts which were. Affirmed by the district court judge. The officer in this case had reasonable articulable suspicion to initiate a traffic stop based upon his observation of the appellant texting while driving. Driving so recklessly that he almost collided with the officer's own patrol vehicle and also failing to maintain lane would text along the sufficient. Yes, your honor it would

. And the basis of that and what's the base what is the secondary offense. Well, you're not all if you could actually look at the statute on at hand it's a Virginia statute section 46.2-1078.1. That statute is broken down into several sections section a actually lays out the elements of the events. Section B lays out exceptions and then section C which the appellant has cited in their briefs is a matter of criminal procedure. That is a direction towards officers not to issue a citation. There's nothing in here that says you can't initiate a traffic stop. It simply says you can't issue a citation. So when an officer observed somebody texting while driving. They have violated the elements in section a they have committed a traffic offense. Section C is simply a direction from the legislature regarding criminal procedure that being a state statute and so under Virginia V more that criminal procedure isn't going to be assimilated into this case. I understood the district court. And it was it was a little unclear to say that nothing the statute did not preclude

. There was no prohibition against the officer stopping the vehicle for the purpose of warning the driver about his potentially hazardous conduct. But I do not understand the texting statute to authorize a stop to warn if it's not possible to issue a citation based on the stop. Well, man, the statute doesn't explicitly authorize it, but it doesn't explicitly prohibit it either. The legislature could have drafted part C, which is a criminal procedure part of the statute to say an officer cannot initiate a traffic stop. But that's not what the legislature did. They said no citation shall issue. And then in sub part D of the statute, it says a violation of any of this any provision of this section shall constitute a traffic in production. So if somebody is committed a violation of section A, which lays out the elements of the offense, they have committed a traffic violation. So when an officer observes somebody basically hitting those elements, he has reasonable, articulable suspicion to initiate a traffic stop for a traffic violation. That seems to make good common sense, but we'll stuck with the law here. And no case in Virginia killed that before. And in fact, they changed the law. So it's to make it a primary defense. There's a reason you did that

. If your position is true, then you wouldn't have had to change the law. You could stop them to warm. And it does make it just doesn't seem to follow up. You can issue a citation, but you can stop someone. And we had to put this into context. We're talking about a new law that comes about with texting. And I can imagine you're moving very carefully this because you don't know where it's going to go. I mean, people picking up the phone doing all kinds of stuff. You don't want everybody to get an citation for it. And so it's an evolving law and you'll stuck with the law as it was from its inception. It is not that way anymore. I mean, you can stop them now. That seems to follow the good common sense. Well, we stuck with the law here on this. I mean, Texan is just not enough under the previous law to stop a car. You see someone texting and it didn't say you saw him texting in conjunction with the drifting. He saw him texting and he says the drifting, of course, then the drifting part is something that comes up because his initial statement to the driver is texting. He doesn't mention drifting. He doesn't mention reckless. He doesn't mention anything else. That comes up. I don't know if it's an education thing you go through that you figure out that that's not going to be enough. So you come up with it or whatever, but the bottle line is he never left that lane. And I don't know what that means in terms of the fact you're the common sense is yes, it looks that way, but I'm not sure if it's the law. Well, so you've hit on several different cases that I would like to discuss the first being Virginia V more. And then you've also brought up us V Tivots and us V Johnson. So your discussion regarding the statute as it existed at the time when we talk about subsection C, which is the legislature saying this is going to be a secondary offense versus a primary offense. That isn't the legislature saying that when somebody violates section A, they aren't committing a traffic infraction

. I mean, Texan is just not enough under the previous law to stop a car. You see someone texting and it didn't say you saw him texting in conjunction with the drifting. He saw him texting and he says the drifting, of course, then the drifting part is something that comes up because his initial statement to the driver is texting. He doesn't mention drifting. He doesn't mention reckless. He doesn't mention anything else. That comes up. I don't know if it's an education thing you go through that you figure out that that's not going to be enough. So you come up with it or whatever, but the bottle line is he never left that lane. And I don't know what that means in terms of the fact you're the common sense is yes, it looks that way, but I'm not sure if it's the law. Well, so you've hit on several different cases that I would like to discuss the first being Virginia V more. And then you've also brought up us V Tivots and us V Johnson. So your discussion regarding the statute as it existed at the time when we talk about subsection C, which is the legislature saying this is going to be a secondary offense versus a primary offense. That isn't the legislature saying that when somebody violates section A, they aren't committing a traffic infraction. That is the legislature basically giving a direction to officers regarding allocation of resources. But doesn't has a Virginia case law made it fairly clear that at least with respect to secondary offenses because you couldn't enforce them. You couldn't stop them. Even in the district this is where as I recall the district court and the magistrate judge disagree the magistrate judge cited Virginia case law for the proposition that because an officer may not enforce the test. Texting statute absent another violation. An officer may not stop the vehicle based solely on a violation of the statute. Well, man, with all due respect to the magistrate judge, I think he got the statute wrong. Whereas the district court judge read the statute correctly. Well, but the magistrate judge wasn't interpreting the statute. The magistrate judge was relying on state law that's specifically so held. For example, Commonwealth versus Graham noting that the legislature is specifically with drew authority for law enforcement officers to stop vehicles for a secondary offense. Yes, ma'am, but that is the like your honor. That is the legislature's direction, which is a matter of criminal procedure when the legislature gives that direction. They're not saying this is no longer a violation

. That is the legislature basically giving a direction to officers regarding allocation of resources. But doesn't has a Virginia case law made it fairly clear that at least with respect to secondary offenses because you couldn't enforce them. You couldn't stop them. Even in the district this is where as I recall the district court and the magistrate judge disagree the magistrate judge cited Virginia case law for the proposition that because an officer may not enforce the test. Texting statute absent another violation. An officer may not stop the vehicle based solely on a violation of the statute. Well, man, with all due respect to the magistrate judge, I think he got the statute wrong. Whereas the district court judge read the statute correctly. Well, but the magistrate judge wasn't interpreting the statute. The magistrate judge was relying on state law that's specifically so held. For example, Commonwealth versus Graham noting that the legislature is specifically with drew authority for law enforcement officers to stop vehicles for a secondary offense. Yes, ma'am, but that is the like your honor. That is the legislature's direction, which is a matter of criminal procedure when the legislature gives that direction. They're not saying this is no longer a violation. It is a violation. Did Virginia courts misinterpreted Virginia law? Well, no, you're on it. But in the context of Virginia, you be more when an officer observes somebody committing a traffic infraction. And there is a separate state criminal procedure part of the statute that says primary versus secondary offense. That criminal procedure part is not going to be assimilated. When we assimilate a state charge, we are only assimilating the offense, the violation itself. We're not assimilating the criminal procedure. And that's exactly what Virginia versus more stands for. Do you, if we do not agree with you about your interpretation of the texting statute, do you lose? No, you're on it, not at all, because the officer clearly had reasonable, articulable suspicions pull over the appellant because the appellant almost crashed into his own patrol car due to his reckless driving. Isn't that a bit of an overstatement? Well, no, you're on it. And, you know, the appellant's attorney did go into the facts of the case to quite a great extent. And I would just remind the court of the standard of review here. We are looking at the facts in the light, most favorable to the party prevailing at the district court, unless the fact of findings were clearly erroneous. Where there are two permissible views of the evidence, the fact finders choice between them cannot be clearly erroneous

. It is a violation. Did Virginia courts misinterpreted Virginia law? Well, no, you're on it. But in the context of Virginia, you be more when an officer observes somebody committing a traffic infraction. And there is a separate state criminal procedure part of the statute that says primary versus secondary offense. That criminal procedure part is not going to be assimilated. When we assimilate a state charge, we are only assimilating the offense, the violation itself. We're not assimilating the criminal procedure. And that's exactly what Virginia versus more stands for. Do you, if we do not agree with you about your interpretation of the texting statute, do you lose? No, you're on it, not at all, because the officer clearly had reasonable, articulable suspicions pull over the appellant because the appellant almost crashed into his own patrol car due to his reckless driving. Isn't that a bit of an overstatement? Well, no, you're on it. And, you know, the appellant's attorney did go into the facts of the case to quite a great extent. And I would just remind the court of the standard of review here. We are looking at the facts in the light, most favorable to the party prevailing at the district court, unless the fact of findings were clearly erroneous. Where there are two permissible views of the evidence, the fact finders choice between them cannot be clearly erroneous. I understand the appellant to be arguing that the video cam supports, in fact, disagrees with the testimony of officer Michael at the suppression unit. I would disagree with that, Your Honor. The video actually corroborates officer Michael's testimony. Officer Michael's testified that the two vehicles were parallel. The dash cam only being able to show what is in front of the vehicle. It couldn't show the fact that the appellant's vehicle was directly parallel adjacent to his. What the video does show is the two vehicles coming off of the stop and then officer Michael's vehicle suddenly coming to a stop. It did it come to a stop or break it breaks, Your Honor. Coming to a sudden break and then the appellant's vehicle moving forward and that exactly corroborates officer Michael's testimony, which is that he had to break in order to avoid a collision. There's really no other explanation for officer Michael's patrol vehicle suddenly slowing down coming to a break while the other vehicle proceeds forward. Is there a statute that prohibits drifting over vehicle? Well, Your Honor, officer Michael's did cite the appellant. I'm not even excited. I'm asking you. Is there a statute that prohibits vehicle and lane drifting? I mean, you, I mean, lanes depending on how large they are

. I understand the appellant to be arguing that the video cam supports, in fact, disagrees with the testimony of officer Michael at the suppression unit. I would disagree with that, Your Honor. The video actually corroborates officer Michael's testimony. Officer Michael's testified that the two vehicles were parallel. The dash cam only being able to show what is in front of the vehicle. It couldn't show the fact that the appellant's vehicle was directly parallel adjacent to his. What the video does show is the two vehicles coming off of the stop and then officer Michael's vehicle suddenly coming to a stop. It did it come to a stop or break it breaks, Your Honor. Coming to a sudden break and then the appellant's vehicle moving forward and that exactly corroborates officer Michael's testimony, which is that he had to break in order to avoid a collision. There's really no other explanation for officer Michael's patrol vehicle suddenly slowing down coming to a break while the other vehicle proceeds forward. Is there a statute that prohibits drifting over vehicle? Well, Your Honor, officer Michael's did cite the appellant. I'm not even excited. I'm asking you. Is there a statute that prohibits vehicle and lane drifting? I mean, you, I mean, lanes depending on how large they are. I mean, a cock can move toward the center line and never cross it, which in this instance, the evidence is clear. It never did cross it. I mean, I don't know what that means. I mean, if you're driving down the road and I always think of these cases in terms of what does this mean if we hold as you want us to hold on it. It may fit just neatly with these sets of facts, but facts cases apply across the board when we set the law. And if we say that a mere or any level of drifting in constitute reckless driving under these circumstances, what does that mean? Well, Your Honor, what officer Michael? But I'm going to say the first question is there statute that prohibits drifting. There is a statute that prohibits reckless driving. And if the drifting is reckless, then that reckless driving statute could apply your honor. And I would, but drifting alone with nothing more. Is that inherently a reckless charge? Well, Your Honor, officer Michael's observation was that it was because when the vehicle started drifting towards his vehicle, it almost crashed into the vehicle. So when we talk about the reckless driving statute, that's that almost crashed into the vehicle. Where is his testimony to that extent? Your Honor, officer Michael's testified that he had to apply his brakes in order to avoid a collision. But I want to know about the almost crashed. That sounds rather, I mean, that makes it sound much more imminent or something, but almost

. I mean, a cock can move toward the center line and never cross it, which in this instance, the evidence is clear. It never did cross it. I mean, I don't know what that means. I mean, if you're driving down the road and I always think of these cases in terms of what does this mean if we hold as you want us to hold on it. It may fit just neatly with these sets of facts, but facts cases apply across the board when we set the law. And if we say that a mere or any level of drifting in constitute reckless driving under these circumstances, what does that mean? Well, Your Honor, what officer Michael? But I'm going to say the first question is there statute that prohibits drifting. There is a statute that prohibits reckless driving. And if the drifting is reckless, then that reckless driving statute could apply your honor. And I would, but drifting alone with nothing more. Is that inherently a reckless charge? Well, Your Honor, officer Michael's observation was that it was because when the vehicle started drifting towards his vehicle, it almost crashed into the vehicle. So when we talk about the reckless driving statute, that's that almost crashed into the vehicle. Where is his testimony to that extent? Your Honor, officer Michael's testified that he had to apply his brakes in order to avoid a collision. But I want to know about the almost crashed. That sounds rather, I mean, that makes it sound much more imminent or something, but almost. I thought he just simply said it was drifting and he had to hit his brakes because he thought that it might come over in his side, but it never did. Well, Your Honor, the reason that we have lane lines and the reason why the failure to maintain statute exists is because those lane lines are there to protect two vehicles from. He maintained his lane. Well, officer Michael cited him for failure to maintain his lane because at the time, the facts are he maintained his lane. Officer Michael's testified that the two vehicles were proceeding parallel that the appellants vehicle almost drifted into his now. He couldn't actually see whether or not they're almost drifted into his. I mean, that's where we, what's the way we saw them and I understand where you going is. I mean, I can very well see an instance where cars riding parallel and all of a sudden it swerves them violently and it looks like it's up in the and both didn't jerk back. And that's not the testimony here. The testimony simply is riding alongside him and he sees one kind of moving over a bit and he says it's drifting and then that's reckless driving. Well, I think when that driving behavior causes a law enforcement officer to engage in defensive driving by applying his brakes in order to avoid the two vehicles. Actually, the the magistrate judge quoted from the testimony of the suppression hearing that as officer Michael observed defendant's vehicle drifting, he was unable to determine if defendant's vehicle actually crossed the dividing line between the lanes. However, officer Michael applied his brakes so that defendant's vehicle would not hit officer Michael's car. Exactly, honor

. I thought he just simply said it was drifting and he had to hit his brakes because he thought that it might come over in his side, but it never did. Well, Your Honor, the reason that we have lane lines and the reason why the failure to maintain statute exists is because those lane lines are there to protect two vehicles from. He maintained his lane. Well, officer Michael cited him for failure to maintain his lane because at the time, the facts are he maintained his lane. Officer Michael's testified that the two vehicles were proceeding parallel that the appellants vehicle almost drifted into his now. He couldn't actually see whether or not they're almost drifted into his. I mean, that's where we, what's the way we saw them and I understand where you going is. I mean, I can very well see an instance where cars riding parallel and all of a sudden it swerves them violently and it looks like it's up in the and both didn't jerk back. And that's not the testimony here. The testimony simply is riding alongside him and he sees one kind of moving over a bit and he says it's drifting and then that's reckless driving. Well, I think when that driving behavior causes a law enforcement officer to engage in defensive driving by applying his brakes in order to avoid the two vehicles. Actually, the the magistrate judge quoted from the testimony of the suppression hearing that as officer Michael observed defendant's vehicle drifting, he was unable to determine if defendant's vehicle actually crossed the dividing line between the lanes. However, officer Michael applied his brakes so that defendant's vehicle would not hit officer Michael's car. Exactly, honor. So he was officer Michael allowed. What is unclear to me here is the effect that the secondary status of the texting offense at the time had in combination with the drifting was it. What is your support for the proposition that it was permissible for officer Michael to consider the drifting and the fact that he applied his brakes so that defendant's vehicle would not hit his car along with the texting for which he was. As I read the Virginia case law, not allowed to stop solely on the basis of. Well, yes, your honor. We certainly would still argue that even if there were no other driving behavior officer Michaels could pull him over for texting while driving under Virginia V more. But if you disagree with us on that point officer Michaels also had reasonable articulable suspicion that he was driving recklessly and that he failed to maintain lane and as officer Michaels explained later, he didn't end up citing him with reckless driving because this ended up being a DUI stop and a marijuana possession stop and he wasn't going to cite him for both DUI and. Yes, your honor. But that doesn't go I mean that that is a that is a decision that me he made later on that was a charging decision that was an officer discretion issue and what we're talking about here is reasonable articulable suspicion at the time to initiate a traffic stop. Now Judge Wynn had brought up the Tibbet's case and the Johnson case and the in the question that he was asking when officer Michaels pulled him over and informed him I pulled you over for texting while driving. The appellant has argued that that basically negates any other sort of predicate violation which is pretty clearly addressed to this. Yes, your honor you have as we raised in our 28 J letter but just the fact that the officer Michaels informed the appellant that he was pulled over for texting while driving doesn't mean that that was the only predicate violation giving him reasonable articulable suspicion to initiate the traffic stop. I think we understand your argument if you have nothing further or apparently you have a few seconds if you wish to conclude. Well, you're on I just conclude and finding that the facts here aren't such that this court could make a finding that both the magistrate court judge and the district court judge made clearly erroneous findings of fact

. So he was officer Michael allowed. What is unclear to me here is the effect that the secondary status of the texting offense at the time had in combination with the drifting was it. What is your support for the proposition that it was permissible for officer Michael to consider the drifting and the fact that he applied his brakes so that defendant's vehicle would not hit his car along with the texting for which he was. As I read the Virginia case law, not allowed to stop solely on the basis of. Well, yes, your honor. We certainly would still argue that even if there were no other driving behavior officer Michaels could pull him over for texting while driving under Virginia V more. But if you disagree with us on that point officer Michaels also had reasonable articulable suspicion that he was driving recklessly and that he failed to maintain lane and as officer Michaels explained later, he didn't end up citing him with reckless driving because this ended up being a DUI stop and a marijuana possession stop and he wasn't going to cite him for both DUI and. Yes, your honor. But that doesn't go I mean that that is a that is a decision that me he made later on that was a charging decision that was an officer discretion issue and what we're talking about here is reasonable articulable suspicion at the time to initiate a traffic stop. Now Judge Wynn had brought up the Tibbet's case and the Johnson case and the in the question that he was asking when officer Michaels pulled him over and informed him I pulled you over for texting while driving. The appellant has argued that that basically negates any other sort of predicate violation which is pretty clearly addressed to this. Yes, your honor you have as we raised in our 28 J letter but just the fact that the officer Michaels informed the appellant that he was pulled over for texting while driving doesn't mean that that was the only predicate violation giving him reasonable articulable suspicion to initiate the traffic stop. I think we understand your argument if you have nothing further or apparently you have a few seconds if you wish to conclude. Well, you're on I just conclude and finding that the facts here aren't such that this court could make a finding that both the magistrate court judge and the district court judge made clearly erroneous findings of fact. We would simply ask that you uphold your own precedent as well as the precedent of the Supreme Court and affirm the findings of the lower parts. Thank you. Please the court want to address first the government's comment to the court that they have absolutely no problem in arguing that the officer Michaels could stop the defendant even if it was just for some sort of a warning that he may not be able to issue a citation. Again, I call the court's attention to the actual language of the statute that says no citation for a violation of this section shall be issued unless the officer issuing such citation has caused to stop or arrest the driver of such motor vehicle. I think it was all inclusive and I agree with Judge Wynn that it was changed for that reason by the Virginia legislature shortly after this case and I think in this case there's no question but that that could not have been the sole reason for the stop the attempt if you will by the government in its case to then try to fall back on reckless driving. Even though of all things that was the one not charged we have failure to maintain a lane of travel that didn't pass muster because the officer could never say that the defendant in this case Mr. Wingle came over into his lane that it was a drift. So we fall back on what we would perhaps in Virginia called the catch all statute of reckless driving but Judge Duncan you mentioned it yourself that's a very serious statute I think Judge Wynn said it as well. It's a class one Mr. Meanor and it calls for driving that would put somebody in fear of safety of their life limb or property it has to be that type of operation and again let's go back to the video if you will and look at that and there's not a sudden break there's certainly not an almost crash. There is an officer that has a camera mounted to his vehicle that shows that he perhaps slowed down a little bit and allowed Mr. Wingle to go by and then the very first time you see in the evidence in this case Mr. Wingle's car dead center of his travel lane. The lights go on with the officer's vehicle and Mr

. We would simply ask that you uphold your own precedent as well as the precedent of the Supreme Court and affirm the findings of the lower parts. Thank you. Please the court want to address first the government's comment to the court that they have absolutely no problem in arguing that the officer Michaels could stop the defendant even if it was just for some sort of a warning that he may not be able to issue a citation. Again, I call the court's attention to the actual language of the statute that says no citation for a violation of this section shall be issued unless the officer issuing such citation has caused to stop or arrest the driver of such motor vehicle. I think it was all inclusive and I agree with Judge Wynn that it was changed for that reason by the Virginia legislature shortly after this case and I think in this case there's no question but that that could not have been the sole reason for the stop the attempt if you will by the government in its case to then try to fall back on reckless driving. Even though of all things that was the one not charged we have failure to maintain a lane of travel that didn't pass muster because the officer could never say that the defendant in this case Mr. Wingle came over into his lane that it was a drift. So we fall back on what we would perhaps in Virginia called the catch all statute of reckless driving but Judge Duncan you mentioned it yourself that's a very serious statute I think Judge Wynn said it as well. It's a class one Mr. Meanor and it calls for driving that would put somebody in fear of safety of their life limb or property it has to be that type of operation and again let's go back to the video if you will and look at that and there's not a sudden break there's certainly not an almost crash. There is an officer that has a camera mounted to his vehicle that shows that he perhaps slowed down a little bit and allowed Mr. Wingle to go by and then the very first time you see in the evidence in this case Mr. Wingle's car dead center of his travel lane. The lights go on with the officer's vehicle and Mr. Wingle puts his right blinker on gets over into the right lane properly the officer corroborates that in his testimony then turns right into the hotel parking lot where this the search took place again with absolutely no problems and the officer was asked that whether there was any other bad driving other than that statement earlier of the slow drift and he said no. For those reasons and for those I've given the court earlier we ask the court to reverse. Thank you very much. Thank you. We will come down and greet council and proceed to the next case and we'll allow a few minutes for the changing of the guard. But before we do that I would like to thank you very much Mr. Villanese I might pronounce it like the liabilities I'm sorry I know that you are court appointed and we want to tell you how very much we appreciate your service to court. Thank you.

The honorable, the judges of the United States Court of Appeals for the Fourth Circuit. Oye, Oye, Oye, Oye, Oye, all persons having any manner or form of business before the honorable, United States Court of Appeals for the Fourth Circuit are admonished to draw the committee or your attention for the court is now sitting. God save the United States and this honorable court. Please be seated. Good morning and we will hear oral argument in our first case momentarily. First I would like to thank William and Mary for inviting us here this morning visiting law schools is one of the more pleasant assignments that we have. And so we appreciate the invitation and we also appreciate the willingness of the attorneys to accommodate us in this endeavor. We are ready for argument in United States versus a wingle. Good morning. May please the court. My name is Peter Alites and I represent the appellant in this case Kenneth a wingle. The relevant facts of this case are as follows. In the early morning of September 2, 2012, Mr. Wingle along with his passenger was driving on Route 36, which is in Prince George County and also fronts the Fort Lee military base. That particular area is designated as having concurrent jurisdiction both with Prince George County and Fort Lee. At the Syskiski Gate of Fort Lee but still on Route 36, Officer Michaels of the Fort Lee military police pulled up beside Mr. Wingle where both vehicles were stopped. This is a four lane highway. There are two lanes that go eastbound and two lanes that go westbound. They are divided by a median strip. Officer Michaels was in the right lane of the eastbound Route 36 and my client Mr. Wingle was in the left lane of that of the eastbound lanes. Both vehicles after the light turned green pulled off from that light and the evidence in this case was that initially Mr. Wingle pulled ahead of Officer Michaels on Mark Cruiser. Councillor, we're going to generally be from a year with the facts. Yes sir. You can argue it however you wish but I'm not sure that a lengthy recitation of the facts would help you in terms of the legal arguments. Yes sir. You do what you want. It relates to the argument, the relevant facts then would be that Officer Michaels testified that at some point when he was alongside the vehicle of Mr. Wingle that he noticed some bluish white light coming from Mr. Wingle's vehicle which he thought might be indicative of cell phones being used and perhaps of texting being done by either the passenger or the driver and then he testified the officer did that at some point Mr. Wingle's car drifted towards his vehicle. Officer Michaels testified that because of that drift he had to hit his brakes in his words in order to avoid the potential for there being some sort of collision. Is there a factual dispute here? Of that particular incident no you're wrong there's not. But when... In fact some of it was captured on the mounted cameras. That's correct. That's correct and when we were talking about in this case what this court has available to it and looking at whether or not there was clear error on the part of the trial court when you consider those facts you have the video in the video in my mind other than for that brief period of time where Officer Michaels said the camera could not pick up anything because it was a front mounted camera and couldn't get Mr. Wingle when he was on his side. I think that the video absolutely speaks for itself and it's strong evidence and obviously it was introduced and it's found in volume two of our joint appendix. The magistrate judge made a number of factual findings which is what I think we're reviewing here including a finding of credibility with the police officer testifying. Are you challenging his credibility finding? Your Honor not so much his credibility but perhaps how he explained what happened versus what you see on the camera. And quite frankly I would be in some ways with great respect challenging judge Novak's finding at the magistrate court level when he made his findings a fact. I'd ask if you were asserting a factual dispute and it seems as though you are in what specifically is that which I think may be part of the judges question. The the minor factual disputes that I would have with judge Novak's findings are that he said that the defendant's car swerved. He used that term a couple of times swerved towards the officers cruiser that was never the testimony by officer Michael's the only word that he used was drift and that it was a slow drift. You're under the really weren't a whole lot of factual disputes it really came down to in the end judge Novak trying to find what it was that officer Michael stopped Mr. Wingle for. Well it really comes down to how you view these facts what do you take these facts to mean in terms of creating an opportunity if it existed for the officer to stock. Under these circumstances given the nature of the texting statute you couldn't at least from my understanding you couldn't stop him for texting at that time because it's a secondary offense. So then you are left to determine what do those facts mean drifting toward the line and the question I really have for you if the video which we would tend to think might be something unless it's tampered with might present what one would call objective evidence. In the face of evidence by the officer and his perception his objective perception which one controls in determining whether he had an articulable suspicion of stock. The video would control in my mind judge it's it's there and there's it's been introduced there's absolutely nothing surrounding that video that would suggest it being tampered with by anybody. And it is part of this right. The video or because of the subjectivity of the officer. I'm sorry, Joseph. Is it because you consider the video to be much more objective and that's what's needed or with the subjective knowledge or the subjective belief of the officer control. It's because it's it's objective you get to see when we're looking to see if there is some reasonable articulable suspicion that has to be objective. Is articulated you look at the video and you see you see what happened and so when we use it order for the video to control you that articulation presupposes the conflict between the video and the test. Correct correct. And the explanation that the officer gave at the suppression hearing is that the video because of the way the video cameras were mounted they only saw they captured only a limited portion of what occurred. So specify for me please where you see the conflict occurring between what is reflected in the video and the officers testimony. The conflict is when you watch the video you do not see any type of maneuver by the officer and and in mind you that this is on the officer's cruiser that he is that he's operating the video. How to see movement on the part of the officer if the camera is mounted on the front of the car. Judge his testimony was that he had to suddenly break and I believe again the the magistrate judges findings a fact where that the officer actually had to swerve to miss Mr. Wingel's vehicle that is not on the video you see the very slightest of breaking. And you see the the first you see of Mr. Wingel's car is that it is in the center of his travel lane now granted the officer said that the drifting may have happened prior to the camera picking it up but it's important to note and I think that the video would be supportive of this for the for the appellant in this case. That there was no swarming you see that you see the camera and smooth pursuit mounted on this vehicle there's no and there's no sudden break. It's an argument I take it you made to the magistrate judge. Yes sir. And the magistrate judge took all the evidence and decided against you set out the reasons for that decision. So your argument now has to be that that finding was clearly around it's yes sir. It is which is usually a fairly high hill to climb. I understand that judge and and but I think in this case because we have the video it can be climbed and and I think that in this particular case if you watch. If you read in essence judge novac's examination of Mr. Wingel which is throughout this hearing he's attempting to find what it is that we have that might violate the the fourth amendment to the Constitution judge when stated earlier I think that judge novac was convinced early on that under one is seven eight point one. Title 46 point two of the Virginia code that the officer could not have stopped him if it were just for the texting so when judge novac went further. Virginia versus more since this is a case of a federal jurisdiction on state jurisdiction what difference does that. Just I think it's distinguishable in this case if you look at the the indictment you'll see that that for the count that dealt with the texting the government assimilated through the code of federal regulations that particular code section dealing with with texting that particular code section has three sub parts and one of its sub parts. The other part of the government is the specific mandate by the legislature that you can't charge this you can't even stop it doesn't say you just can't arrest someone for it says you cannot stop somebody unless there is some other offense it was not a primary offense at the time and my argument would be among others that the government can't cherry pick that statute if you've assimilated it and you've charged this defendant under it and you've got to you've got to abide by it and that's that argument that's in your brief. Judge we argue in there that more didn't didn't apply and we cited several cases as to why we thought that in this case that this is a substantive law it's all encompassing and of course we cited specifically the subsection C that said that the stop couldn't have been made under one of seven eight point one if that were the only offense and that's what let us down the road in that hearing to questions about what was the other bad driving and when asked repeatedly by me the officer said that there really was no other bad driving than the inattentiveness was his word inattentiveness by by Mr. Wingle and I think it was as related to the the looking down at a phone and the and the text traffic citation for reckless driving is that correct no sir that's right because he got to do why yes but he for fair to maintain his lane yes sir and what else was in charge of it fair to maintain lane texting while driving driving under the influence of alcohol possession of marijuana and obstruction of justice were the four five charges by that he would have charged him with reckless driving but he viewed that as being countermanded in this case because of the UI charge that was his testimony which I would suggest to the court and did in my my brief is is a mistake of law even when judge Novak ended up agreeing with him in his opinion inciting I believe it was 19 to to 94.1 but even if he made a mistake of law we really haven't gotten to what was the reasonable or particular suspicion for him to make the stop and if he thought that there was reckless driving but he made a mistake in the charging wouldn't that have fulfilled the condition preceded for the reasonable suspicion to make the stop I can't disagree with that judge I think it would but I want to point to the court the multiple times multiple times when asked by the court multiple times and by me officer michael's repeatedly said that he had a real problem with this being considered reckless driving he was he was kind of guided there if you will by the magistrate judge but when he was asked for the basis for his for his stop by capnathams he said in a tent of driving drifting and texting and he said that on two different occasions then he admitted there's really no statute for specifically for in a tent of driving and then he was asked by the court judge he said but you the court asked but you didn't charge him with that right talking about reckless driving no sir I didn't feel it warranted a reckless driving ticket and then the officer later said I felt that the closest charge that I would have been able to use on this would have been the failing to maintain the lane of travel that's the closest it comes to physically what he did on the highway does that matter I think it's the officers subjective view determined it it's not determined it but in this case we the bottom line is that we have to find some sort of violation on the highway of a statute some sort of motor vehicle violation and I think I hope that we can agree that standing alone we don't have the texting there's a relative I think a pretty strong concession by by the government and I think judge Hudson may have addressed it that on the failure to maintain lane of travel the officer at some point even admits that he doesn't think that the the statute covers that because he could never say no matter how hard the officer was pressed at this hearing that Mr. Wingle came into his lane and that didn't have to do with whether or not it was caught on camera this was officer Michaels testimony saying that I cannot I cannot say that the car crossed over the lane you have had Hudson's review here affirming the man majesty's order and we've been going back and forth in terms of what the majesty did in the underlying order and what Hudson did of course as Hudson starts out and basically indicates well you've got the secondary offense and he says how that logic is the logic that a secondary offense is may not be used initially a traffic is inconsistent with Supreme Court for a second precedent he doesn't go on that basis but you can tell from his order that sort of influences where he goes and he says for three grounds here upon which he says that it exists but one of the things that he does make a determination of in this order he says essentially that the officer says he stopped him for texting and he never mentioned to him anything about drifting he didn't mention that you know he was stopping him for reckless driving or for in a tent he stopped him for texting and if that is so evidence in a case based upon at least the Virginia law at that time which is changed as I understand that may not have been a basis to stop him so then it comes along the inattentiveness and inattentiveness is then elevated to some form of recklessness which I'm concerned at least in terms of what does that mean is inattentive driving because records driving Virginia is pretty serious stuff and if inattentiveness and you never get out of the lane it's clear he never got out of the lane I mean that second ground is just great the third ground that just touching brought up about leaving the lane is really kind of not there but how do you view this in terms of the officers in national testimony and his basic reason for giving a stop was to text without ever mentioning the inattentiveness even though inherent it seems texting while driving in terms of the way he's doing it and you are inattentive. Judge my time is up now please answer your question. I think it was interesting as you point out that Judge Hudson disagreed with with Judge Novak when it came to whether or not the officer could could stop solely based on texting and Judge Hudson's opinion and I'm sure you know was that officer Michaels could even if it was just to warn Mr. Wangle of the dangerousness of this inattentiveness. I of course completely disagree with that as we start off. I guess at that point he's saying that you can there's an articulable suspicion that's going to be important to something that's a secondary statute. I don't know what secondary means if you can stop into one. Correct. And I don't quite understand the secondary business in Virginia anyway and apparently it's been cured but at least at that time that's the way it was. And I would agree with the court also that when we don't have that and I don't think that standing alone we've got the officer had the right to stop based on the texting then it was just a matter of trying to backfill with the facts we have and the facts just aren't there both from the video and from as the court points out and I said earlier that officer Michaels was unable to say at any point that this car ever drifted from its lane made any other maneuvers. I asked him specifically was there a bear driving was there any form of reckless driving any weaving anything of that nature and the officer answered that in the negative. Mr. Lee, Billy otters here. Your time is. Thank you. As it expired and you have some time for a bottle. Thank you. Thank you. Good morning. May I please the court. Catherine Adams representing the United States. Judges what the appellant is asking you to do is to overrule your court's own precedent and to overrule the Supreme Court's precedent and to also make a finding of clearly erroneous facts by the trial judge facts which were. Affirmed by the district court judge. The officer in this case had reasonable articulable suspicion to initiate a traffic stop based upon his observation of the appellant texting while driving. Driving so recklessly that he almost collided with the officer's own patrol vehicle and also failing to maintain lane would text along the sufficient. Yes, your honor it would. And the basis of that and what's the base what is the secondary offense. Well, you're not all if you could actually look at the statute on at hand it's a Virginia statute section 46.2-1078.1. That statute is broken down into several sections section a actually lays out the elements of the events. Section B lays out exceptions and then section C which the appellant has cited in their briefs is a matter of criminal procedure. That is a direction towards officers not to issue a citation. There's nothing in here that says you can't initiate a traffic stop. It simply says you can't issue a citation. So when an officer observed somebody texting while driving. They have violated the elements in section a they have committed a traffic offense. Section C is simply a direction from the legislature regarding criminal procedure that being a state statute and so under Virginia V more that criminal procedure isn't going to be assimilated into this case. I understood the district court. And it was it was a little unclear to say that nothing the statute did not preclude. There was no prohibition against the officer stopping the vehicle for the purpose of warning the driver about his potentially hazardous conduct. But I do not understand the texting statute to authorize a stop to warn if it's not possible to issue a citation based on the stop. Well, man, the statute doesn't explicitly authorize it, but it doesn't explicitly prohibit it either. The legislature could have drafted part C, which is a criminal procedure part of the statute to say an officer cannot initiate a traffic stop. But that's not what the legislature did. They said no citation shall issue. And then in sub part D of the statute, it says a violation of any of this any provision of this section shall constitute a traffic in production. So if somebody is committed a violation of section A, which lays out the elements of the offense, they have committed a traffic violation. So when an officer observes somebody basically hitting those elements, he has reasonable, articulable suspicion to initiate a traffic stop for a traffic violation. That seems to make good common sense, but we'll stuck with the law here. And no case in Virginia killed that before. And in fact, they changed the law. So it's to make it a primary defense. There's a reason you did that. If your position is true, then you wouldn't have had to change the law. You could stop them to warm. And it does make it just doesn't seem to follow up. You can issue a citation, but you can stop someone. And we had to put this into context. We're talking about a new law that comes about with texting. And I can imagine you're moving very carefully this because you don't know where it's going to go. I mean, people picking up the phone doing all kinds of stuff. You don't want everybody to get an citation for it. And so it's an evolving law and you'll stuck with the law as it was from its inception. It is not that way anymore. I mean, you can stop them now. That seems to follow the good common sense. Well, we stuck with the law here on this. I mean, Texan is just not enough under the previous law to stop a car. You see someone texting and it didn't say you saw him texting in conjunction with the drifting. He saw him texting and he says the drifting, of course, then the drifting part is something that comes up because his initial statement to the driver is texting. He doesn't mention drifting. He doesn't mention reckless. He doesn't mention anything else. That comes up. I don't know if it's an education thing you go through that you figure out that that's not going to be enough. So you come up with it or whatever, but the bottle line is he never left that lane. And I don't know what that means in terms of the fact you're the common sense is yes, it looks that way, but I'm not sure if it's the law. Well, so you've hit on several different cases that I would like to discuss the first being Virginia V more. And then you've also brought up us V Tivots and us V Johnson. So your discussion regarding the statute as it existed at the time when we talk about subsection C, which is the legislature saying this is going to be a secondary offense versus a primary offense. That isn't the legislature saying that when somebody violates section A, they aren't committing a traffic infraction. That is the legislature basically giving a direction to officers regarding allocation of resources. But doesn't has a Virginia case law made it fairly clear that at least with respect to secondary offenses because you couldn't enforce them. You couldn't stop them. Even in the district this is where as I recall the district court and the magistrate judge disagree the magistrate judge cited Virginia case law for the proposition that because an officer may not enforce the test. Texting statute absent another violation. An officer may not stop the vehicle based solely on a violation of the statute. Well, man, with all due respect to the magistrate judge, I think he got the statute wrong. Whereas the district court judge read the statute correctly. Well, but the magistrate judge wasn't interpreting the statute. The magistrate judge was relying on state law that's specifically so held. For example, Commonwealth versus Graham noting that the legislature is specifically with drew authority for law enforcement officers to stop vehicles for a secondary offense. Yes, ma'am, but that is the like your honor. That is the legislature's direction, which is a matter of criminal procedure when the legislature gives that direction. They're not saying this is no longer a violation. It is a violation. Did Virginia courts misinterpreted Virginia law? Well, no, you're on it. But in the context of Virginia, you be more when an officer observes somebody committing a traffic infraction. And there is a separate state criminal procedure part of the statute that says primary versus secondary offense. That criminal procedure part is not going to be assimilated. When we assimilate a state charge, we are only assimilating the offense, the violation itself. We're not assimilating the criminal procedure. And that's exactly what Virginia versus more stands for. Do you, if we do not agree with you about your interpretation of the texting statute, do you lose? No, you're on it, not at all, because the officer clearly had reasonable, articulable suspicions pull over the appellant because the appellant almost crashed into his own patrol car due to his reckless driving. Isn't that a bit of an overstatement? Well, no, you're on it. And, you know, the appellant's attorney did go into the facts of the case to quite a great extent. And I would just remind the court of the standard of review here. We are looking at the facts in the light, most favorable to the party prevailing at the district court, unless the fact of findings were clearly erroneous. Where there are two permissible views of the evidence, the fact finders choice between them cannot be clearly erroneous. I understand the appellant to be arguing that the video cam supports, in fact, disagrees with the testimony of officer Michael at the suppression unit. I would disagree with that, Your Honor. The video actually corroborates officer Michael's testimony. Officer Michael's testified that the two vehicles were parallel. The dash cam only being able to show what is in front of the vehicle. It couldn't show the fact that the appellant's vehicle was directly parallel adjacent to his. What the video does show is the two vehicles coming off of the stop and then officer Michael's vehicle suddenly coming to a stop. It did it come to a stop or break it breaks, Your Honor. Coming to a sudden break and then the appellant's vehicle moving forward and that exactly corroborates officer Michael's testimony, which is that he had to break in order to avoid a collision. There's really no other explanation for officer Michael's patrol vehicle suddenly slowing down coming to a break while the other vehicle proceeds forward. Is there a statute that prohibits drifting over vehicle? Well, Your Honor, officer Michael's did cite the appellant. I'm not even excited. I'm asking you. Is there a statute that prohibits vehicle and lane drifting? I mean, you, I mean, lanes depending on how large they are. I mean, a cock can move toward the center line and never cross it, which in this instance, the evidence is clear. It never did cross it. I mean, I don't know what that means. I mean, if you're driving down the road and I always think of these cases in terms of what does this mean if we hold as you want us to hold on it. It may fit just neatly with these sets of facts, but facts cases apply across the board when we set the law. And if we say that a mere or any level of drifting in constitute reckless driving under these circumstances, what does that mean? Well, Your Honor, what officer Michael? But I'm going to say the first question is there statute that prohibits drifting. There is a statute that prohibits reckless driving. And if the drifting is reckless, then that reckless driving statute could apply your honor. And I would, but drifting alone with nothing more. Is that inherently a reckless charge? Well, Your Honor, officer Michael's observation was that it was because when the vehicle started drifting towards his vehicle, it almost crashed into the vehicle. So when we talk about the reckless driving statute, that's that almost crashed into the vehicle. Where is his testimony to that extent? Your Honor, officer Michael's testified that he had to apply his brakes in order to avoid a collision. But I want to know about the almost crashed. That sounds rather, I mean, that makes it sound much more imminent or something, but almost. I thought he just simply said it was drifting and he had to hit his brakes because he thought that it might come over in his side, but it never did. Well, Your Honor, the reason that we have lane lines and the reason why the failure to maintain statute exists is because those lane lines are there to protect two vehicles from. He maintained his lane. Well, officer Michael cited him for failure to maintain his lane because at the time, the facts are he maintained his lane. Officer Michael's testified that the two vehicles were proceeding parallel that the appellants vehicle almost drifted into his now. He couldn't actually see whether or not they're almost drifted into his. I mean, that's where we, what's the way we saw them and I understand where you going is. I mean, I can very well see an instance where cars riding parallel and all of a sudden it swerves them violently and it looks like it's up in the and both didn't jerk back. And that's not the testimony here. The testimony simply is riding alongside him and he sees one kind of moving over a bit and he says it's drifting and then that's reckless driving. Well, I think when that driving behavior causes a law enforcement officer to engage in defensive driving by applying his brakes in order to avoid the two vehicles. Actually, the the magistrate judge quoted from the testimony of the suppression hearing that as officer Michael observed defendant's vehicle drifting, he was unable to determine if defendant's vehicle actually crossed the dividing line between the lanes. However, officer Michael applied his brakes so that defendant's vehicle would not hit officer Michael's car. Exactly, honor. So he was officer Michael allowed. What is unclear to me here is the effect that the secondary status of the texting offense at the time had in combination with the drifting was it. What is your support for the proposition that it was permissible for officer Michael to consider the drifting and the fact that he applied his brakes so that defendant's vehicle would not hit his car along with the texting for which he was. As I read the Virginia case law, not allowed to stop solely on the basis of. Well, yes, your honor. We certainly would still argue that even if there were no other driving behavior officer Michaels could pull him over for texting while driving under Virginia V more. But if you disagree with us on that point officer Michaels also had reasonable articulable suspicion that he was driving recklessly and that he failed to maintain lane and as officer Michaels explained later, he didn't end up citing him with reckless driving because this ended up being a DUI stop and a marijuana possession stop and he wasn't going to cite him for both DUI and. Yes, your honor. But that doesn't go I mean that that is a that is a decision that me he made later on that was a charging decision that was an officer discretion issue and what we're talking about here is reasonable articulable suspicion at the time to initiate a traffic stop. Now Judge Wynn had brought up the Tibbet's case and the Johnson case and the in the question that he was asking when officer Michaels pulled him over and informed him I pulled you over for texting while driving. The appellant has argued that that basically negates any other sort of predicate violation which is pretty clearly addressed to this. Yes, your honor you have as we raised in our 28 J letter but just the fact that the officer Michaels informed the appellant that he was pulled over for texting while driving doesn't mean that that was the only predicate violation giving him reasonable articulable suspicion to initiate the traffic stop. I think we understand your argument if you have nothing further or apparently you have a few seconds if you wish to conclude. Well, you're on I just conclude and finding that the facts here aren't such that this court could make a finding that both the magistrate court judge and the district court judge made clearly erroneous findings of fact. We would simply ask that you uphold your own precedent as well as the precedent of the Supreme Court and affirm the findings of the lower parts. Thank you. Please the court want to address first the government's comment to the court that they have absolutely no problem in arguing that the officer Michaels could stop the defendant even if it was just for some sort of a warning that he may not be able to issue a citation. Again, I call the court's attention to the actual language of the statute that says no citation for a violation of this section shall be issued unless the officer issuing such citation has caused to stop or arrest the driver of such motor vehicle. I think it was all inclusive and I agree with Judge Wynn that it was changed for that reason by the Virginia legislature shortly after this case and I think in this case there's no question but that that could not have been the sole reason for the stop the attempt if you will by the government in its case to then try to fall back on reckless driving. Even though of all things that was the one not charged we have failure to maintain a lane of travel that didn't pass muster because the officer could never say that the defendant in this case Mr. Wingle came over into his lane that it was a drift. So we fall back on what we would perhaps in Virginia called the catch all statute of reckless driving but Judge Duncan you mentioned it yourself that's a very serious statute I think Judge Wynn said it as well. It's a class one Mr. Meanor and it calls for driving that would put somebody in fear of safety of their life limb or property it has to be that type of operation and again let's go back to the video if you will and look at that and there's not a sudden break there's certainly not an almost crash. There is an officer that has a camera mounted to his vehicle that shows that he perhaps slowed down a little bit and allowed Mr. Wingle to go by and then the very first time you see in the evidence in this case Mr. Wingle's car dead center of his travel lane. The lights go on with the officer's vehicle and Mr. Wingle puts his right blinker on gets over into the right lane properly the officer corroborates that in his testimony then turns right into the hotel parking lot where this the search took place again with absolutely no problems and the officer was asked that whether there was any other bad driving other than that statement earlier of the slow drift and he said no. For those reasons and for those I've given the court earlier we ask the court to reverse. Thank you very much. Thank you. We will come down and greet council and proceed to the next case and we'll allow a few minutes for the changing of the guard. But before we do that I would like to thank you very much Mr. Villanese I might pronounce it like the liabilities I'm sorry I know that you are court appointed and we want to tell you how very much we appreciate your service to court. Thank you