United States v. Booker

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 15, 2007 Decided August 10, 2007

No. 06-3030

UNITED STATES OF AMERICA,

APPELLEE

v.

FREDERICK E. BOOKER, A/K/A CHARLES BOOKER,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00225-01)

A. J. Kramer, Federal Public Defender, argued the cause for

the appellant.

Mary B. McCord, Attorney, argued the cause for the

appellee. Jeffrey A. Taylor, United States Attorney, and Roy W.

McLeese III, Lisa H. Schertler and John P. Gidez, Assistant

United States Attorneys, were on brief.

Before: GINSBURG, Chief Judge, and HENDERSON and

ROGERS, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge ROGERS.

2

KAREN LECRAFT HENDERSON, Circuit Judge: Appellant

Frederick E. Booker pleaded guilty to one count of possessing

with intent to distribute marijuana in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(D). Booker now appeals the district

court’s denial of his motion to suppress evidence seized from his

vehicle following his arrest for driving without a permit on the

grounds that both the traffic stop and the search of his vehicle

violated the Fourth Amendment to the United States

Constitution. He also appeals his guilty plea on the ground that

it lacked a sufficient factual basis. For the reasons set forth

below, we affirm the district court.

I.

On May 7, 2003, Booker, with an unknown passenger, was

driving a white Crown Victoria southbound on Seventh Street in

northeast Washington D.C. at approximately 4:00 p.m. Three

members of the Metropolitan Police Department

(MPD)—Officers Bryan Wymbs, Gary Glenn and Bruce

Garrett1—passed the Crown Victoria at the intersection of

Seventh Street and Buchanan Street as their unmarked police car

was traveling in the opposite direction. They noticed that the

vehicle’s front license tag “was not displayed in brackets on the

front of the car but, instead, was placed inside the windshield on

the front right side.” United States v. Booker, Crim. No. 03-225,

slip op. at 2 (D.D.C. Oct. 25, 2005). Believing the license plate

was improperly displayed, the officers decided to conduct a

traffic stop. They continued driving in the direction they had

been traveling until they could “make a series of turns,” Tr.

11/18/03, at 8, and reverse direction. In the meantime, Booker’s

vehicle had “made a series of turns” inside a “U shape[d]

1

The officers were members of the MPD Fifth District’s

automobile theft unit which “investigate[s] the theft of stolen autos

and also look[s] for fraudulent tags, things of that nature.” Tr.

11/18/03, at 5.

3

development”2 and was “approximately three to four blocks

away.” Id. As a result, the officers did not catch up to Booker’s

vehicle until they “came around [a] corner,” id. at 18, and found

it parked at the curb in front of 4342 Varnum Place N.E.3 By the

time they “pulled up to the Crown Victoria, with the front of

their car just next to, but not overlapping, [its] rear bumper,”

Booker, slip op. at 2, Booker and the passenger had exited,

closed the door and begun walking away from it, id. Officer

Wymbs then “alighted from the unmarked police car, identified

himself as a police officer, and ordered [] Booker and his

passenger to stop.” Id. The passenger fled and Officer Glenn

attempted—without success—to apprehend him. Meanwhile,

Officer Wymbs grabbed Booker by the arm about “three steps

away from the car,” id. at 5, and handcuffed him. He testified

that at that moment Booker was not arrested but instead he “was

plac[ing] [Booker] in handcuffs for [the officers’] safety”

because “the passenger of the vehicle exited the vehicle running

[sic] holding his waistband area.” Tr. 11/18/03, at 24. Shortly

thereafter, Officer Glenn returned without the passenger and

inquired whether Booker had a license. When Booker

responded that he did not, he was arrested for driving without a

permit and “placed on the curb alongside the vehicle.” Id. at 12.

After his arrest, the officers searched the vehicle and discovered

a “book bag,” Booker, slip op. at 3, that contained an Intratec

9mm Luger semiautomatic pistol, a Ruger 9mm semiautomatic

2

The development consists of Varnum Place N.E., Varnum Street

N.E. and Seventh Street N.E. See Mapquest, Maps,

www.mapquest.com (search for “4342 Varnum Place N.E.,

Washington, D.C.”) (last visited July 5, 2007).

3

Contrary to Officer Wymbs’s testimony, see Tr. 11/18/03, at 9

(“The vehicle stopped . . . in front of 4342 Varnum Street.”), 4342

Varnum Street does not exist. See Mapquest, Maps,

www.mapquest.com (search for “4342 Varnum Street N.E.,

Washington, D.C.”) (last visited July 5, 2007).

4

pistol, 9mm ammunition and a large ziplock bag holding 79

smaller ziplock bags of marijuana totaling 51 grams, Tr.

10/31/05, at 4, 8. The officers also recovered two cellular

telephones and almost $1700 in cash from Booker’s person. Id.

at 8.

On May 29, 2003, Booker was charged by indictment with

one count of possessing with intent to distribute marijuana in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (Count 1) and

one count of using, carrying and possessing a firearm during a

drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)

(Count 2). On November 18, 2003, the district court held a

suppression hearing and granted Booker’s motion to suppress

the evidence seized from his vehicle, concluding that the search

was unlawful under the United States Supreme Court’s decisions

in New York v. Belton, 453 U.S. 454 (1981), and Chimel v.

California, 395 U.S. 752 (1969). The Government appealed but

before the parties filed briefs, they jointly moved to remand to

the district court for reconsideration in light of the Supreme

Court’s decision in Thornton v. United States, 541 U.S. 615

(2004). On October 19, 2004, we vacated the district court’s

order and remanded for further consideration. Just over one

year later, the district court, relying on Thornton, denied

Booker’s motion to suppress.

At an October 31, 2005 plea hearing, Booker entered a

conditional guilty plea to Count 1.4 In response to the district

court’s question, “In your own words, not worrying what the

statute says, what is it that you would plead guilty to?” Booker

responded, “The possession.” Tr. 10/31/05, at 4. The court then

asked, “Is it possession of marijuana?” to which Booker replied,

“Yes.” Id. The court also questioned Booker about the

4

The plea agreement expressly reserved Booker’s right to appeal

the district court’s denial of his motion to suppress pursuant to Federal

Rule of Criminal Procedure 11(a)(2).

5

substance of the plea agreement, after which the court outlined

the “facts on which the plea of guilty would be entered”:

[O]n May 7th, 2003, at about four p.m. in the vicinity of

4342 Varnum Place Northeast, Washington D.C., the

defendant was seen by a Metropolitan Police

Department officer driving a white Ford Crown Victoria

with a D.C. temporary tag inside of the front windshield

of the dashboard.

The officers made a U turn and began to follow the

defendant. The defendant stopped and parked the car.

The defendant [sic] is the driver and his front seat

passenger both left the vehicle, closed the door, and the

defendant was subsequently stopped by the police.

The defendant told the police he did not have a license

and was placed under arrest for driving without a permit.

In the subsequent search incident to arrest, officers

searched the car and recovered $1,695.82 in cash, two

cell phones, an Intratec 9mm Luger gun, a Ruger 9mm

gun, 9mm ammunition and 79 zips containing 51 grams

of marijuana.

Id. at 7-8. Later in the plea colloquy, the following exchange

took place:

THE COURT: Okay. Mr. Booker, are you entering a

guilty plea because you’re guilty or because you just

want to get it over with?

[Booker]: I want to get it over with.

THE COURT: Right. But are you guilty?

[Booker]: No.

THE COURT: You’re not guilty because they shouldn’t

have searched the car?

[Booker]: Yes.

THE COURT: Okay. But if they could lawfully search

the car, was the bag yours?

6

[Booker]: Yes.

THE COURT: All right. I think I can take that as enough

for my purposes.

Id. 9-10. Finally, the court asked, “Mr. Booker, how do you

plead today to the charge of unlawful possession with intent to

distribute cannabis?” Id. at 11. Booker responded, “Guilty.”

Id.

On February 3, 2006, the district court sentenced Booker to

time served (approximately six months), two years’ supervised

release and a $100 assessment. This appeal followed.

II.

We address separately Booker’s Fourth Amendment and

guilty plea claims.

A. Fourth Amendment Claims

The Fourth Amendment protects “[t]he right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV.

“The touchstone of the Amendment is reasonableness . . . .”

United States v. Askew, 482 F.3d 532, 538 (D.C. Cir. 2007).

Booker argues that both the traffic stop and the search of his

vehicle were unreasonable. We review de novo whether the

police had reasonable suspicion to effect the traffic stop, United

States v. Hill, 131 F.3d 1056, 1059 & n.2 (D.C. Cir. 1997), and

probable cause to search the vehicle, United States v. Christian,

187 F.3d 663, 666 (D.C. Cir. 1999). “[W]e review the district

court’s findings of historical fact only for clear error, [giving]

due weight to inferences drawn from those facts and to the

court’s determinations of witness credibility.” United States v.

Brown, 334 F.3d 1161, 1164 (D.C. Cir. 2003) (internal

quotations omitted).

7

1. Traffic Stop

“Temporary detention of individuals during the stop of an

automobile by the police, even if only for a brief period and for

a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the

meaning of [the Fourth Amendment].” Whren v. United States,

517 U.S. 806, 809-10 (1996). Thus, a traffic stop is “subject to

the constitutional imperative that it not be ‘unreasonable’ under

the circumstances.” Id. at 810. While the Fourth Amendment

“does not bar the police from stopping and questioning motorists

when they witness or suspect a violation of traffic laws, even if

the offense is a minor one,” United States v. Mitchell, 951 F.2d

1291, 1295 (D.C. Cir. 1991), the facts surrounding the stop must

“‘be judged against an objective standard: would the facts

available to the officer at the moment of the seizure or the search

warrant a man of reasonable caution in the belief that the action

taken was appropriate?’” Hill, 131 F.3d at 1059 (quoting Terry

v. Ohio, 392 U.S. 1, 21-22 (1968)) (internal quotation omitted).

“In other words, reasonable suspicion to stop and search a

motorist depends on ‘the events which occurred leading up to

the stop or search, and then the decision whether these historical

facts, viewed from the standpoint of an objectively reasonable

police officer, amount to reasonable suspicion.’” Id. (quoting

Ornelas v. United States, 517 U.S. 690, 696 (1996)).

A finding of reasonable suspicion does not demand “a

meticulously accurate appraisal” of the facts. United States v.

Coplin, 463 F.3d 96, 101 (1st Cir. 2006). Indeed, “[s]tops

premised on mistakes of fact . . . generally have been held

constitutional so long as the mistake is objectively reasonable.”

Id. (although defendant’s driver’s license valid, traffic stop

objectively reasonable because police cruiser computer indicated

license suspended); see also United States v. Miguel, 368 F.3d

1150, 1153-54 (9th Cir. 2004) (although vehicle properly

registered, traffic stop objectively reasonable because police

cruiser computer indicated registration expired). In Hill, for

8

example, the police stopped the vehicle in which the defendant

was a passenger because they believed its temporary D.C. tags

lacked a Vehicle Identification Number (VIN). 131 F.3d at

1058. Although the district court “concluded that it was

impossible to determine whether Hill’s temporary tags actually

had a VIN on them at the time Hill’s car was stopped,” id. at

1060, it denied the defendant’s motion to suppress “on the

ground that the police officer that stopped Hill’s car believed

that he had violated the traffic laws,” id. at 1059. Believing that

the district court had “applied a subjective reasonableness test to

the officer’s decision to stop Hill’s car, rather than the objective

reasonableness test that is required in such situations,” id. at

1060, we reversed the district court. We explained that

the record . . . contain[ed] no information regarding the

conditions under which the officer first observed Hill’s

car—e.g., how far away the police cruiser was from

Hill’s car at the time the officer first observed the tags,

the quality of the lighting, how quickly Hill’s car was

moving, etc.—and whether, given those conditions, it

was objectively reasonable for the officer to conclude

that the tags were missing a VIN.

Id. We also observed that

[i]t was not necessary for the court to determine whether

or not a VIN actually appeared on Hill’s temporary tags

at the time of the traffic stop. Even if the court assumed

that . . . the tags contained a VIN at the time of the stop,

the stop was still permissible as long as the officer’s

belief that the VIN was missing was objectively

reasonable.

Id. at 1060 n.3 (emphasis added).

Unlike stops premised on mistakes of fact, “[s]tops premised

on a mistake of law, even a reasonable, good-faith mistake, are

generally held to be unconstitutional.” Coplin, 463 F.3d at 101;

9

see also United States v. McDonald, 453 F.3d 958, 961-62 (7th

Cir. 2006); United States v. Cole, 444 F.3d 688, 689 (5th Cir.

2006). But see United States v. Bueno, 443 F.3d 1017, 1024 (8th

Cir. 2006) (“We have held, however, that neither mistake of law

nor mistake of fact renders a traffic stop illegal so long as the

officer’s actions were objectively reasonable in the

circumstances.”). A stop is lawful despite a mistake of law,

however, if an objectively valid basis for the stop nonetheless

exists. United States v. Southerland, 486 F.3d 1355 (D.C. Cir.

2007); see also United States v. Delfin-Colina, 464 F.3d 392,

399 (3d Cir. 2006) (“In situations where an objective review of

the record evidence establishes reasonable grounds to conclude

that the stopped individual has in fact violated the traffic-code

provision cited by the officer, the stop is constitutional even if

the officer is mistaken about the scope of activities actually

proscribed by the cited traffic-code provision.”); cf. Devenpeck

v. Alford, 543 U.S. 146, 153 (2004) (officer’s “subjective reason

for making the arrest need not be the criminal offense as to

which the known facts provide probable cause”); United States

v. Bookhardt, 277 F.3d 558, 566 (D.C. Cir. 2002) (probable

cause to arrest exists even if arresting officer made “honest

mistake of law” so long as “objectively valid ground” for arrest

exists). In Southerland, two MPD officers conducted a traffic

stop because they observed a Maryland license plate on the

dashboard of the defendant’s vehicle. Id. at 1357. Both officers

“testified to their belief that Maryland law requires that the plate

be placed on the bumper.” Id. at 1359. The prosecution,

however, conceded that the officers were mistaken—Maryland

law in fact requires only that the plate be “on the front” of the

vehicle, “in a horizontal position,” “securely fastened” and

“clearly visible.” Id. (internal quotations and alterations

omitted). We nevertheless held that “[i]n light of [Maryland’s]

requirements” that the plate be “securely fastened” and “clearly

visible,” the officers reasonably conducted the stop “even

assuming they were mistaken that the law required display of the

10

front plate on the bumper.” Id. (citing Bookhardt, 277 F.3d

558).

Here, the police officers conducted a traffic stop because,

when they passed Booker’s vehicle traveling in the opposite

direction, they observed a “temporary tag,” Tr. 11/18/03, at 26,

displayed “[i]n the windshield on the front right side” rather than

in a “bracket” on the front bumper, id. at 6. The district court,

however, found that a “dealers’ plate” was affixed to the rear of

Booker’s vehicle,5 id. at 72, and subsection 422.2 of title 18 of

the D.C. Code of Municipal Regulations provides: “Motorized

. . . vehicles identified by a dealer’s tag . . . shall display only

one (1) valid identification tag on the rear of the vehicle.” D.C.

Mun. Reg. § 18-422.2 (emphases added). Nevertheless, the

district court held that the officers’ decision to stop Booker’s

vehicle was objectively reasonable. The court explained that it

was “undisputed” that the front tag was improperly displayed

regardless whether it was a “regular tag[]” or a “dealer tag[]”

and, thus, “the officers’ initial sighting of the Crown Victoria

gave them reason to believe that it was operating in violation of

the D.C. Code requirements for tags.” Booker, slip op. at 9. The

court also concluded that there was “no basis to fault the officers

for having failed to study the rear tag and realize that it might

have been a dealer tag” because “after making a U-turn and

pulling up next to the Crown Victoria, the officers’ attention was

distracted by the immediate departures of the driver and

5

The record contains no evidence that a dealer’s tag was in fact on

the rear of Booker’s vehicle. Indeed, the Dealer Temporary Tag

Status Report (DTTSR) that Booker introduced during the suppression

hearing simply manifested that a dealer’s tag was issued. See DTTSR

at 1 (Nov. 13, 2003) (JA 102) (“Dealer Temporary Tag” issued for

Crown Victoria on May 6, 2003 and expired on June 5, 2003). The

Government, however, did not challenge the district court’s finding at

the suppression hearing nor in its brief to us.

11

passenger; indeed, when the passenger took flight, their attention

was understandably diverted.” Id. 9-10.

Booker argues that “there was no probable cause to stop him

for any [traffic] violation because the tags on the car did not

actually violate any regulation, and . . . a stop based on such a

mistake of law is invalid.” Reply Br. at 1. Specifically, he

contends that D.C. Mun. Reg. § 18-422.4—which requires

“[o]wner’s identification tags” to be “securely fastened”6—does

not apply to the dealer’s tag located “[i]n the windshield on the

front right side” of his vehicle, Tr. 11/18/03, at 6. He also

maintains that whether the front tag was properly displayed is

irrelevant because the dealer’s tag displayed on the rear of the

vehicle complied with subsection 422.2. Finally, he claims the

record does not support the court’s conclusion that the officers

were too “distracted” to notice the properly displayed dealer’s

tag. The Government makes two arguments: (1) subsection 18-

422.2 provides that there need be only one dealer’s tag on the

rear of the vehicle so that a temporary tag on the front violates

subsection 18-422.2, and (2) because the police had already seen

“an illegally displayed front tag,” they “still would have had a

basis to investigate that criminal violation, whether or not they

had realized that there was a valid dealer tag on the rear of the

car.” Appellee’s Br. 16, 19 & n.13.

6

Subsection 422.4 provides:

Owner’s identification tags shall at all times be securely

fastened in a horizontal position to the vehicle for which they

are issued so as to prevent the tags from swinging and at a

height of not less than twelve inches (12 in.) from the ground,

measuring from the bottom of the tags, in a place and position

to be clearly visible.

D.C. Mun. Reg. § 18-422.4.

12

We agree with the district court that the traffic stop was

objectively reasonable. The officers here, like the officers in

Southerland, conducted a traffic stop because they mistakenly

believed that license plates must be displayed on the front and

rear bumpers of a vehicle. Tr. 11/18/03, at 6. Notwithstanding

Booker had in fact committed no traffic violation—a dealer’s

tag was properly displayed on the rear of the vehicle—the

officers’ mistaken belief to the contrary when they first saw the

license plate displayed in Booker’s windshield was objectively

reasonable and the traffic stop was therefore lawful. See United

States v. Glover, 851 A.2d 473, 476 (D.C. 2004) (police had

“objective reason” to believe driver violated D.C. Code by

“propp[ing] up” tag against front windshield rather than

“securely fasten[ing]” it to front of car). The district court also

concluded that the police officers reasonably failed to notice the

rear tag because they were “distracted” when they approached

Booker’s vehicle. See Hill, 131 F.3d at 1060 n.3 (“Even if the

court assumed that . . . the tags contained a VIN at the time of

the stop, the stop was still permissible as long as the officer’s

belief that the VIN was missing was objectively reasonable.”).

While the officers did not testify regarding the rear tag, we

believe the record supports the inference the district court drew

that their failure to notice the rear tag was reasonable. See

Brown, 334 F.3d at 1164 (“[W]e . . . give due weight to

inferences drawn from th[e] facts.” (internal quotation omitted)).

By the time the officers reversed direction and began pursuit,

Booker’s vehicle had “made a series of turns” inside a “U

shape[d] development” and was “approximately three to four

blocks away.” Tr. 11/18/03, at 8. Consequently, the officers

were not close enough to observe the vehicle’s rear bumper until

they “came around [a] corner” and saw Booker and his

passenger exiting the parked vehicle.7 See id. at 17-18. At that

7

The dissent suggests that Booker’s vehicle stopped because the

officers “‘pulled directly behind it.’” Dis. at 3 (quoting Tr. 11/18/03,

13

point, the officers parked their vehicle “alongside” Booker’s, id.

at 16, and reasonably focused their attention on the exiting

occupants. Accordingly, their failure to notice the rear tag was

an objectively reasonable mistake of fact.8

To sum up, although Booker had not violated any law

regarding the display of tags, the officers reasonably thought

initially that he had and then, again, reasonably, failed to

recognize that he had not.

at 8 (alteration and emphasis omitted)). It ignores, however, Officer

Wymbs’s testimony that when the officers “c[aught] up” to Booker’s

vehicle, it had already parked. Tr. 11/18/03, at 9 (“Q. Did [Booker’s

vehicle] stop pursuant to any efforts you made to stop it or did it stop

by itself? A. It stopped by itself.”); see also id. at 7-8 (“Q. When you

said that you got behind the vehicle, does that mean you made a U

turn? A. We made a U turn, that’s correct. Q. Were you directly

behind the vehicle once you made the U turn? A. No.”). Moreover,

because Booker did not stop in response to the police, the officers

reasonably assumed that Booker and his passenger would not remain

at the vehicle and reasonably focused on stopping them. Whether

Booker’s passenger fled as the officers parked their vehicle and got

out is, contrary to the dissent’s assertion, immaterial. See Dis. at 5.

8

In a letter submitted pursuant to Federal Rule of Appellate

Procedure 28(j), the Government argued that both the front and rear

tags were “special use identification tags.” Letter from Jeffrey A.

Taylor, United States Attorney, to Mark J. Langer, Clerk 2-3 (May 17,

2007). We disagree. “Special use tags may be issued under

circumstances in which it would be unreasonable or impractical to

obtain a registration for a motor vehicle.” D.C. Mun. Reg. § 426.2.

Section 426.5 of the D.C. Municipal Regulations states that “[s]pecial

use tags shall be issued for a period not to exceed twenty (20) days.”

Id. § 426.5 (emphasis added). According to the DTTSR Booker

introduced during the suppression hearing, the dealer’s tag on

Booker’s vehicle expired in thirty days. DTTSR at 1 (JA 102).

14

2. Search of Vehicle

“Warrantless searches are presumptively unreasonable[.]”

United States v. Karo, 468 U.S. 705, 717 (1984). “A warrantless

search is permitted, however, if it occurs incident to a lawful

arrest.” United States v. Mapp, 476 F.3d 1012, 1016 (D.C. Cir.

2007) (internal quotation omitted). Police officers may search

a defendant’s vehicle incident to an arrest “[s]o long as [the]

arrestee is [a] ‘recent occupant’ of [the] vehicle.” Thornton v.

United States, 541 U.S. 615, 623-24 (2004). Doing so

“‘allow[s] officers to ensure their safety and to preserve

evidence by searching the entire passenger compartment.’”

Mapp, 476 F.3d at 1019 (quoting Thornton, 541 U.S. at 623).

“‘[A]n arrestee’s status as a “recent occupant” may turn on

his temporal or spatial relationship to the car at the time of the

arrest and search.’” Id. at 1019 (quoting Thornton, 541 U.S. at

622). In Mapp, we held that the defendant qualified as a “recent

occupant” because he was arrested “at the hood of” a police

cruiser, id. at 1019, parked “directly behind” his vehicle, id. at

1014, and he was searched “around ten minutes after he was

arrested,” id. at 1019. We explained that “Mapp was close

enough to his car to justify the search” and that the search “was

not so separated in time or by intervening events that [it] cannot

fairly be said to have been incident to the [arrest].” Id. (internal

quotation omitted) (2d alteration in original).

We believe that Booker, like Mapp, qualifies as a “recent

occupant,” and accordingly, the search of his vehicle was

proper. Although the record does not reveal Booker’s precise

location at the time of his arrest—which occurred after Officer

Glenn returned from pursuing the fleeing passenger—he was

only “three steps away” from the vehicle when Officer Wymbs

handcuffed him. Booker, slip op. at 5. Thus, he “was close

enough to his car to justify the search.” Mapp, 476 F.3d at

1019; see also United States v. Poggemiller, 375 F.3d 686, 687-

88 (8th Cir. 2004) (defendant was recent occupant when arrested

15

ten to fifteen feet from his car). Moreover, the record suggests

that the search occurred immediately after the arrest. See Tr.

11/18/03, at 12 (“Q. What happened after he was placed under

[arrest]? A. A search of the vehicle incident to his arrest

revealed a black book bag.”); see also United States v. Weaver,

433 F.3d 1104, 1106 (9th Cir. 2006) (ten to fifteen minute delay

contemporaneous).

Because both the stop and the search of Booker’s vehicle

were lawful under the Fourth Amendment, we affirm the district

court’s denial of his motion to suppress.

B. Guilty Plea Claim

Booker argues that the “factual basis for [his] plea was

woefully inadequate.” Appellant’s Br. at 33. Specifically, he

contends that the district court failed to expressly inquire into

the “intent to distribute” element of his offense. Because

Booker did not raise this objection below, we review his claim

for plain error only. See Fed. R. Crim. P. 52(b) (“A plain error

that affects substantial rights may be considered even though it

was not brought to the court’s attention.”); see also United

States v. Washington, 115 F.3d 1008, 1010 (D.C. Cir. 1997).

Under that standard, we will remedy a trial court error only if

there is “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s]

substantial rights’ . . . [and] (4) the error ‘seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.’”

Johnson v. United States, 520 U.S. 461, 466-67 (1997) (quoting

United States v. Olano, 507 U.S. 725, 732 (1993)). An error

“affect[s] substantial rights” if it is “prejudicial.” Olano, 507

U.S. at 734. To demonstrate prejudice in the context of a guilty

plea, an appellant must “show a reasonable probability that, but

for the error, he would not have entered the plea.” United States

v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

In his brief, see Appellant’s Br. at 33, Booker expressly

disavows that he is raising his claim under Federal Rule of

16

Criminal Procedure 11. See Fed. R. Crim. P. 11(b)(3) (“Before

entering judgment on a guilty plea, the court must determine that

there is a factual basis for the plea.”). At oral argument, Booker

explained that he did not rely on Rule 11 because he could not

demonstrate, as required by Dominguez Benitez, that “but for the

error, he would not have entered the plea.” 542 U.S. at 83.

Because, as he forthrightly concedes, Booker cannot make that

showing, he perforce cannot demonstrate prejudice, see Olano,

507 U.S. at 734 (error “prejudicial” if it “affected the outcome

of the district court proceedings”), and accordingly cannot

demonstrate plain error.

For the foregoing reasons, the judgment of the district court

is affirmed.

So ordered.

ROGERS, Circuit Judge, dissenting: The question in this

appeal is whether, despite a mistake of law, the police had an

objectively reasonable valid basis for stopping Booker for

violating District of Columbia regulations on vehicle tags.

Although I agree that the officers had reasonable suspicion to

investigate, upon seeing a temporary tag in the front windshield,

whether Booker’s car had a tag properly displayed on the rear,

there is no evidence to support the conclusion that the officers’

subsequent failure to notice the rear tag was objectively

reasonable, much less to support speculation that the officers

“were not close enough” to see the rear tag, Op. at 12.

“Stops premised on a mistake of law, even a reasonable,

good-faith mistake, are generally held to be unconstitutional.”

United States v. Coplin, 463 F.3d 96, 101 (1st Cir. 2006) (citing

United States v. McDonald, 453 F.3d 958, 961-62 (7th Cir.

2006); United States v. Chanthasouxat, 342 F.3d 1271, 1277-80

(11th Cir. 2003)); see United States v. Cole, 444 F.3d 688, 689

(5th Cir. 2006). But see United States v. Bueno, 443 F.3d 1017,

1024 (8th Cir. 2006). A stop is lawful despite a mistake of law,

however, if an objectively reasonable valid basis for the stop

nonetheless exists. See United States v. Southerland, 486 F.3d

1355, 1358-59 (D.C. Cir. 2007); see also United States v. Delfin-

Colina, 464 F.3d 392, 399 (3d Cir. 2006); cf. United States v.

Bookhardt, 277 F.3d 558, 56 (D.C. Cir. 2002). “Whether a stop

is reasonable turns on whether the facts, ‘viewed from the

standpoint of an objectively reasonable police officer, amount to

reasonable suspicion’ that a traffic violation has occurred.”

Southerland, 486 F.3d at 1359 (quoting Ornelas v. United

States, 517 U.S. 690, 696 (1996)); see also United States v. Hill,

131 F.3d 1056, 1059 (D.C. Cir. 1997). “[S]tops premised on

mistakes of fact . . . generally have been held constitutional so

long as the mistake is objectively reasonable.” Coplin, 463 F.3d

at 101 (citing United States v. Miguel, 368 F.3d 1150, 1153 (9th

Cir. 2004); United States v. Cashman, 216 F.3d 582, 587 (7th

Cir. 2000)).

2

District of Columbia law provides that “[i]t shall be

unlawful . . . [f]or any person to operate any motor vehicle . . .

upon any public highway of the District of Columbia . . . [i]f

such motor vehicle . . . does not have attached thereto and

displayed thereon the identification tags required therefor.”

D.C. CODE § 50-1501.04(a)(1)(B). District of Columbia

regulations provide that “vehicles identified by a dealer’s tag .

. . shall display only one (1) valid identification tag on the rear

of the vehicle.” MUN. REG. tit. 18, § 422.2. The evidence shows

that upon seeing Booker’s approaching car, one of three officers

in an unmarked car driving in the opposite direction noticed the

temporary tag in the front windshield. See Op. at 10. They

decided to stop Booker’s car because they thought that District

of Columbia law required the tag to be displayed in brackets on

the front of the car. See id. at 2 (citing Mem. Op. of Oct. 29,

2005 at 2). Despite their mistake of law, the officers

nonetheless had an objectively reasonable basis to suspect that

Booker did not have a properly displayed tag on the rear of his

car and to investigate further. However, the record does not

support the further conclusion that the officers’ failure to notice

the rear tag on Booker’s car was objectively reasonable. The

three officers were members of the auto theft unit of the

Metropolitan Police Department, which investigates stolen cars,

fraudulent tags, and other “things of that nature,” Tr. Nov. 18,

2003 at 5, and they had ample opportunity, prior to stopping

Booker, to determine whether there was a tag on the rear of

Booker’s car and failed to do so, instead relying on a mistake of

fact that was no longer reasonable.

After noticing the temporary tag in the windshield of

Booker’s approaching vehicle, the officers “made a U-turn” in

their car and “a series of turns” to catch up with Booker. Id. at

8. “From the point where [the officers] made the U turn until

the point where [they] stopped [Booker after seeing his parked

car],” there were no vehicles between the officers’ car and

3

Booker’s car. Id. “[T]o indicate to [Booker’s] vehicle that it

should stop,” the officers “[p]ulled directly behind it.” Id.

(emphasis added); see id. at 7. When the officers finally caught

up to Booker’s car, after coming around a corner, Booker was in

the process of exiting the car in that his feet were on the ground.

Id. at 18-19.

The district court found that the initial stop of Booker was

lawful. By the time one of the three officers reached Booker

and handcuffed him, however, the district court found that

“[Booker] had, at best, the chance to take three steps away from

the car.” Id. at 5. Further, the passenger did not start running

until after the officer had exited his car, identified himself as a

police officer, and ordered the men to stop. Id. at 2.

Nonetheless, the district court found that the officers’ failure to

notice the rear tag was reasonable because when they pulled up

to Booker’s parked car, they were “distracted by the immediate

departures of the driver and the passenger; indeed when the

passenger took flight, their attention was understandably

diverted.” Id. at 9. This court adopts that finding, stating that

prior to that time “the officers were not close enough” to see the

rear tag. Op. at 12. Neither the district court’s finding nor this

court’s speculation that the officers “were not close enough,” id.,

to see the rear tag can absolve the government of its failure to

meet its burden to show that the stop was lawful. See, e.g.,

United States v. Davis, 235 F.3d 584, 587 (D.C. Cir. 2000); Am.

Fed’n of Gov’t Employees v. Skinner, 885 F.2d 884, 894 (D.C.

Cir. 1989).

First, there is no evidence that would demonstrate that the

officers were unable to see the rear of Booker’s car, and

specifically the rear tag, at any point during the entire pursuit.

To the contrary, the police followed the car for blocks, turned

where the car turned, and, according to the officer’s testimony,

“pulled directly behind it .” Tr. Nov. 18, 2003 at 8 (emphasis

4

added). This court’s reliance on a MapQuest image that it

retrieved from the internet, see Op. at 2-3 & nn.2, 3, does not fill

the evidentiary gap; the image shows roads running north and

south and the curved road Booker’s car traveled before it was

parked, but it does not show that during the pursuit the officers

were unable to see the rear tag on Booker’s car. The district

court made no findings that would support the court’s inference

that the officers “were not close enough” to see the rear tag on

Booker’s vehicle, id. at 12. At best, the district court

hypothesized, on the basis of less “complicated [facts],” that the

officers “might not have known [there was a dealer’s tag] by

following the car at some distance for a couple of blocks.” Tr.

Nov. 18, 2003 at 72.

Second, even assuming that the officer’s testimony about

the distance that Booker’s car traveled could be interpreted to

mean that Booker had already traveled three to four blocks by

the time the officers made a U-turn to follow the car — as

opposed to when the officers caught up to it after it was parked

— this evidence does not support an inference that the officers

were three to four blocks behind Booker’s vehicle during the

entire pursuit. See Op. at 12 (citing Tr. Nov. 18, 2003 at 8).

Rather, the district court’s finding understood the officer’s

testimony to be that Booker’s vehicle was parked three to four

blocks away from the place where the officers initially sighted

it — not that the cars were separated by three to four blocks

during the pursuit. See Mem. Op. at 2. Indeed, one of the

officers testified that the police car and Booker’s car were closer

during the pursuit: “[We] [p]ulled directly behind [Booker’s

vehicle]” to indicate . . . that it should stop. Tr. Nov. 18, 2003

at 8 (emphasis added). When asked whether he “s[aw] [Booker]

make any movements in the car” “[d]uring the three or four

blocks that [Booker] traveled,” the officer did not testify that he

was not close enough to see any movements, much less to see

the rear tag on the car, but instead answered, “No, I did not.” Id.

5

at 16. If the officers were close enough at any point during the

pursuit to see Booker’s movements inside the car, then they

were close enough to see whether there was a tag on the rear of

his car.

Third, the fact that the officers had an objectively

reasonable basis for investigating upon initially seeing the

temporary tag in the front windshield is insufficient to show

their suspicion continued to be reasonable forever. See Op. at

12-13. The court relies on the district court’s finding that “after

making a U-turn and pulling up next to [Booker’s car], the

officers’ attention was distracted by the immediate departures of

[Booker] and [the] passenger,” so “there [wa]s no basis to fault

the officers for having failed to study the rear tag and realize that

it might have been a dealer tag.” Mem. Op. at 9-10. But there

was no testimony that the officers were distracted; as the officer

explained, when they caught up with the car, Booker had exited

the car only in the sense that his feet were on the ground and the

passenger did not begin to run until after the officer had stepped

out of the car, identified himself, and ordered the men to stop.

Additionally, upon approaching Booker’s parked car from the

rear, the officers had to notice only that there was a rear tag —

they did not need to ascertain what type of tag it was, which

would have required closer examination — because having seen

a temporary tag in the front windshield, seeing a tag on the rear

of the car would dispel the officers’ initially reasonable

suspicion that Booker was violating District of Columbia law.

From the evidence that the officers followed the car for several

blocks and then approached the parked car from behind and

stopped, it is inconceivable that the officers from the auto theft

unit would not have noticed the rear tag.

As Booker argued to the district court, and that court

ignored, and as he argues on appeal, “there is no evidence in the

record that supports the district court’s speculation about the

6

officers’ actions,” as neither of the two officers who testified

claimed that they or the third officer were “‘distracted’ as they

pulled up behind car.” Appellant’s Br. at 20; see Tr. Nov. 18,

2003 at 64. “Neither [did the officers] testif[y] that they were

unable to determine that the rear tag was also a dealer’s tag,” id.,

much less that they were unable to see a rear tag at all. Because

the evidence does not support the conclusion that a reasonable

officer, particularly one trained to look for stolen cars and

fraudulent tags, would not have glanced at the rear of Booker’s

car or not had an opportunity to do so at any point during the

pursuit to determine whether there was a rear tag, the district

court erred in denying Booker’s motion to suppress the evidence

found in the car. Accordingly, I respectfully dissent.