Wake Forest Law Review
14Mar

4th Amendment Rights: The Reasonableness of Prolonged Traffic Stops

Categories: 4th Cir. Blog Weekly Roundup
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By: Matthew Welch & Gilbert Smolenski

On March 1, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for United States v. Brian Bowman.  The court held that Bowman’s Fourth Amendment right, freedom from unreasonable seizures, was violated and reversed the district court ruling.

I. Facts and Procedural History

In the predawn hours the morning of June 20, 2015, Officer Waycaster was patrolling on Route 25 in Henderson County, North Carolina.  He received a tip from the DEA that two individuals driving a red, older model Lexus could be narcotics runners.  The DEA also provided a license plate number for the car.  At 3:40 a.m., Officer Waycaster spotted an older red Lexus.  Rather than stopping the vehicle based on information from the DEA, Officer Waycaster followed the car “looking for [his] own infractions . . . for [his own] reason to stop the vehicle.”  When the vehicle weaved over a fog line and accelerated to 10 mph over the speed limit, Officer Waycaster pulled the vehicle over, suspecting that the driver may have been under the influence.  The government agrees that the DEA tip should not be considered in any legal analysis.

After stopping the vehicle, Officer Waycaster noticed two men in the vehicle: Bowman, the driver, and Alvarez, the passenger.  Officer Waycaster testified that Bowman appeared nervous because his hands were shaking, he failed to make eye contact with Waycaster, and that his carotid artery was moving, indicating an elevated heart rate.  Officer Waycaster did not see any alcohol or firearms in the vehicle, but he did notice an energy drink in the center console, food wrappers, and a suitcase in the back seat.  Officer Waycaster explained why Bowman was stopped and then asked Bowman to exit the vehicle and go to the patrol car so that Officer Waycaster could check his information.  Alvarez remained in the passenger seat the entire time.

After Bowman exited the vehicle, he consented to a weapons frisk.  Officer Waycaster found no weapons.  Officer Waycaster then told Bowman to sit in the patrol car while Waycaster ran his driver’s license and registration.  While Officer Waycaster was running Bowman’s information, he asked Bowman where he was coming from.  Bowman said that he was heading home after picking up Alvarez from Alvarez’s girlfriend’s house.  He said he was returning the favor because Alvarez had done the same for him in the past. When questioned about the address of Alvarez’s girlfriend’s house, Bowman said he did not know it but that it was in his car’s GPS.  Officer Waycaster also asked Bowman what he did for a living.  Bowman replied, saying that he was a welder but was currently unemployed.  Bowman also said that he recently bought the Lexus off Craigslist.  Officer Bowman testified that this was a suspicious activity because “it was a known practice with narcotics traffickers to either use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to transport narcotics.”  Officer Waycaster, believing that Bowman was not under the influence, then issued Bowman a ticket for speeding and unsafe movement of the vehicle.

Bowman then began to exit the vehicle but Officer Waycaster asked if he could speak further with Bowman.  Bowman consented.  After another round of questions about what Bowman and Alvarez had been doing that night, Officer Waycaster, who was seated in the patrol car with Bowman said that he “was going to ask [Alvarez] questions if you don’t mind, okay?”  Bowman responded, “okay,” and remained in the vehicle.  As Officer Waycaster exited the patrol car he told Bowman, “just hang tight right there, okay.”  Bowman responded with, “oh, okay.”  Office Waycaster testified that at this point, Bowman was not free to get out of the patrol car because Waycaster had developed, from the traffic stop alone, reasonable suspicion of criminal activity.

Office Waycaster then went back to the Lexus and interviewed Alvarez about what had transpired before the two men were pulled over.  Alvarez’s story conflicted with Bowman’s.  Officer Waycaster then return to the patrol car and asked Bowman if there was meth in the Lexus, to which Bowman responded no.  Bowman then refused to let Officer Waycaster search the Lexus.  Thereafter, Officer Waycaster removed Alvarez from the Lexus and placed him in the patrol car with Bowman.  Then Office Waycaster summoned a K-9 team.  The K-9 team passed around the outside of the Lexus.  The dog alerted an officer that illegal narcotics were present in the vehicle.  Thereafter, Office Waycaster and the K-9 handler searched the interior of the car.  They found meth, digital scales, and containers of ammunition.

Bowman was charged with possession with intent to distribute methamphetamine.  Bowman filed a motion to suppress the methamphetamine evidence, arguing that Officer Waycaster unlawfully prolonged the completed traffic stop without consent or reasonable suspicion.  The district court followed the recommendation of the magistrate judge in denying the motion to suppress.  The magistrate judge admitted that Bowman was not free to leave the patrol car but that the prolonged detention was permissible because “Waycaster had a justified, reasonable suspicion that Defendant Bowman was engaged in criminal activity.” The judge said that the totality of the circumstances supported this finding.  Bowman then filed an appeal.

II. Standard of Review

The Fourth Circuit reviews the district court’s determination that the officer had a reasonable suspicion to prolong the traffic stop de novo.

III. Reasoning

First, a traffic stop must be reasonable.  Here, Bowman does not challenge the reasonableness of the traffic stop.  Bowman was swerving and traveling 10 mph over the speed limit.  Instead Bowman’s Fourth Amendment challenge rests on the unreasonableness of his prolonged detention in the patrol car. The Fourth Amendment allows an officer to conduct an investigation unrelated to the reasons for the traffic stop as long as it does not lengthen the roadside detention.  To extend the length of the detention beyond the time necessary to accomplish the traffic stop’s purpose, an officer must have reasonable suspicion or receive the driver’s consent.  Here, the officer did not receive Bowman’s consent or have a reasonable suspicion.

The government argued that Bowman consented to the prolonged detention when he said “okay” after Officer Waycaster asked him to “hang tight right there, ok?”  However, under a reasonable person standard, the court said that this was not consent by Bowman.  Bowman never had time to respond to Officer Waycaster before Waycaster exited the vehicle and many would feel they were not free to leave in a similar situation. Furthermore, Waycaster was not asking a question, instead he was instructing Bowman what to do.  Thus, when Bowman remained in the patrol car as the officer went to question Alvarez, the encounter was no longer a consensual one but instead became a non-consensual seizure.

After the Fourth Circuit concluded the search constituted a non-consensual seizure, the Court then analyzed whether Waycaster’s “prolonged seizure was justified by reasonable suspicion.”  The Court noted there is no precise definition for what constitutes reasonable suspicion.  Instead, reasonable suspicion is a commonsense, nontechnical standard that considers the realities of everyday life.  The bar for reasonable suspicion is less than the probable cause standard and the facts articulated by the stopping officer and trial court must be taken in their totality.  However, each factor can be analyzed separately by the court before being taken together in a full consideration of the circumstances surrounding the traffic stop.

The Fourth Circuit focuses on four specific factors in its analysis.  First, Waycaster noted that both Bowman and Alvarez appeared to be nervous.  However, a driver’s nervousness is not a good indicator since most citizens are nervous when dealing with police.  The record indicated that Bowman and Alvarez did not exhibit any signs of nervousness above the norm, and the government conceded Bowman was calm once exiting the vehicle.  Moreover, although a suspect’s increased heart rate, which can be evidenced by a suspect’s throbbing carotid artery, can help support there was a reasonable suspicion of criminal activity, the present facts do not show Bowman demonstrated nervousness beyond the norm. The fact that Bowman remained calm in the patrol car and failed to make eye contact with an officer is not indicative of criminal behavior.  Thus, the first factor weighed in favor of the Bowman.

Second, Waycaster stated that several articles in the car, specifically clothes, food, and an energy drink, helped give rise to a reasonable suspicion.  However, these items are consistent with innocent travel and “in the absence of contradictory information,” cannot reasonably imply criminal activity.  While Bowman may have made false statements about his travel plans, the government failed to connect that fact to any wrongdoing in the case.  Therefore, just the articles alone cannot be used to established untruthfulness, and subsequently reasonable suspicion.

Third, the district court noted that Bowman’s inability to recall Alvarez’s girlfriend’s address contributed to Waycaster’s reasonable suspicion.  But, the Fourth Circuit stated this was entirely reasonable, as it is clear from the video recording that Bowman repeatedly said he used the car’s GPS to find the house, and Waycaster could find the address by looking at the car’s GPS history.  The government failed to connect Bowman’s response with criminal activity, and the Fourth Circuit stated it is reasonable that Bowman did not know the address and was relying on GPS in a dark, unfamiliar area.

Finally, Waycaster believed Bowman’s vehicle purchases gave suspicion of criminal activity since he thought it was strange Bowman could afford to purchase multiple vehicles while unemployed and the use of multiple cars was a known practice of drug traffickers.  The Fourth Circuit readily disposed of Bowman’s vehicle purchasing habits, noting that Waycaster made “unsubstantiated assumptions.”  Even though Bowman was unemployed, there are numerous possible explanations to explain the car purchases that are all within the confines of the law.  Likewise, innocent travelers may use multiple vehicles, some of which they could buy from Craigslist, and that fact is entitled to little weight.

Consequently, none of the factors alone provide a basis for reasonable suspicion.  Even when looking at the totality of the circumstances, as mandated by precedent, the Fourth Circuit similarly found that the “combination of wholly innocent factors” did not give rise to reasonable suspicion.  Therefore, the Fourth Circuit reversed the district court, as Bowman’s motion to suppress should have been granted.

 

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30Mar

Fourth Circuit Finds Duration of Traffic Stop Reasonable under Fourth Amendment

Categories: 4th Cir. Blog Archive Criminal Cases
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By Sophia Blair

On March 30, 2017, the Fourth Circuit issued a published criminal opinion, United States v. Hill. Donald Hill (“Hill”) pled guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). However, he appealed the district court’s denial of his motion to suppress his statements and a firearm seized during a traffic stop because he alleged that the police officers’ actions exceeded the scope of the stop. Specifically, he alleged that the stop continued beyond the justifiable amount of time needed, thereby violating his Fourth Amendment rights. The Fourth Circuit affirmed the district court’s dismissal of Hill’s motion to suppress because the stop’s duration was reasonable to complete the tasks incident to the stop.

Facts of the Stop

On October 20, 2014, two police officers patrolling in Richmond, pulled over a car because it was driving over the speed limit and crossed a double-yellow line. The officers recognized both Jeremy Taylor (“Taylor”), the driver, and Hill, the passenger from previous interactions. After Taylor produced his driver’s license, one of the officers returned to the police cruiser to confirm the identity of both men in the Department of Motor Vehicles database, and to check whether either of the men had outstanding warrants on the National Crime Information Center database. The officer discovered that Taylor’s license was suspended. The officer briefly interrupted writing the relevant summons to check for both men in the PISTOL system, which tracks individuals’ prior contacts with the police. There he found that both men were connected with drug activity and were “likely armed.” The officer in the patrol car called for a K-9 unit and continued writing the summons.

The second officer made small talk with both men while the first officer wrote the summons and asked them three times whether they had drugs or firearms in the car. After the third question, Hill admitted that he had a firearm on his person. The officer shouted “gun” and the K-9 unit arrived on the scene almost simultaneously. The district court determined that twenty minutes elapsed between the initiation of the stop and the time the gun was discovered.

Hill’s Claims

Hill argued that the length of the stop exceeded a lawful duration because the second officer talked to him and Taylor instead of helping the first officer search the databases. He also challenged the call to the K-9 unit and searching the PISTOL database. Hill argued that the cumulative effect was to deprive him of his Fourth Amendment Rights under Rodriguez v. United States, 135 S. Ct. 1609 (2015).

The Duration and Scope of the Stop Did Not Violate the Fourth Amendment

In order to be reasonable under the Fourth Amendment, a traffic stop must be legitimate at its inception and the officers’ actions during the stop must be reasonably related in scope to the basis for the stop. Because Hill did not contest that the stop was legitimate at its inception, the Fourth Circuit limited its analysis to whether the officers’ actions were reasonably within the scope of the basis for the stop.

Determining the reasonable length of a stop is not a mathematical endeavor; instead a court determines reasonableness by looking at what police in fact do and whether the officers acted reasonably under the totality of the circumstances. Additionally, officers may undertake investigative techniques unrelated to the underlying traffic infraction without offending the Fourth Amendment as long as the activity does not prolong the duration of the stop.

In analyzing the unfolding of the stop at issue, the Fourth Circuit did not observe any evidence that suggested that either of the officers delayed the completion of the traffic stop. The officers accounted for eighteen minutes of the twenty minute stop, and the Fourth Circuit did not find that the additional two minutes unlawfully extended the duration of the stop. Moreover, the first officer had not finished writing the summons when the second officer yelled “gun.”

The Fourth Circuit also held that the officer’s decision to search PISTOL did not violate the Fourth Amendment because the Fourth Amendment does not require the officers to use the least intrusive means possible to complete a stop. Searching PISTOL was material to the officers insuring their safety in furtherance of their duties. Because of the inherent safety risks  during a traffic stop, the Fourth Circuit also held that the second officer’s choice to stand by the stopped vehicle instead of helping to search the database was reasonable. Finally, requesting the K-9 unit did not violate the Fourth Amendment because the call did not extend the duration of the stop.

Disposition

Because the officers exercised reasonable diligence in executing the traffic stop, the stop was not impermissibly prolonged. The Fourth Circuit affirmed the district court’s denial of Hill’s motion to suppress evidence.

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23Jan

Fourth Circuit Affirms Denial of Motion to Suppress by Clarifying the Terry Doctrine

Categories: 4th Cir. Blog Criminal Cases
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By John Van Swearingen

On Monday, January 23, 2017 the Fourth Circuit issued a published opinion following a rehearing en banc in the criminal case United States v. Robinson. The defendant Robinson appealed his conviction under 18 U.S.C. § 922(g)(1), which prohibits the possession of a firearm by a felon. The Fourth Circuit Court of Appeals affirmed the district court’s denial of Robinson’s motion to suppress evidence of weapon possession, holding that the potential legal status of a concealed weapon does not automatically render that weapon harmless, and therefore, any officer that lawfully stops an individual and reasonably believes that individual to be armed is justified in frisking that individual to secure any weapons.

Facts and Procedural History

On March 24, 2014, an anonymous caller called the Ranson Police Department (West Virginia) to report seeing a black male, the defendant Robinson, in a “bluish greenish Toyota Camry load a firearm [and] conceal it in his pocket” while parked at a 7-Eleven. After this occurred, according to the tipster, the driver of the vehicle, a white female, pulled the Camry out of the parking lot and headed southbound.

This particular 7-Eleven, as several officers would later testify, was located next to the Apple Tree Garden Apartments. The 7-Eleven and the apartment complex were both part of “the highest crime area in Ranson,” especially with regard to drug trafficking, and calls to either location were treated with a heightened sense of alertness.

Two officers responded to the call, and within minutes, spotted the subject Camry containing the defendant and the white female. Neither occupant in the Camry was wearing a seatbelt. The first officer, Officer Hudson, effected a traffic stop for the seatbelt violations. Because the anonymous caller stated that defendant was armed, Officer Hudson asked Robinson to step out of the car.

The second officer, Captain Roberts, opened Robinson’s door and, as Robinson was getting out, asked if Robinson was armed. The Captain later testified that Robinson gave him an “oh, crap” look in lieu of a verbal response. Captain Roberts then frisked Robinson, discovering and securing a loaded handgun from Robinson’s pants pocket.

Captain Roberts, recognizing Robinson as a known felon, then arrested Robinson for illegal possession of a firearm by a felon.

Robinson filed a motion to suppress the firearm, claiming the frisk was a violation of his Fourth Amendment rights. More specifically, Robinson contended that, while the officers may have reasonably suspected that he was armed, West Virginia’s generally permissive laws regarding concealed carry mean an armed individual cannot be assumed to be dangerous absent other factual information. The United States District Court for the Northern District of West Virginia denied his motion.

Armed and Dangerous Means Armed and thus Dangerous

Terry v. Ohio, 392 U.S. 1, 30 (1968), governs the doctrine of weapons frisks by law enforcement officers. If an officer reasonably believes that criminal activity is afoot and suspects an individual is armed and dangerous, that officer may stop that individual and pat down that persons clothing to feel for weapons.

Robinson argued that language of Terry – “armed and dangerous” – requires an officer to reasonably suspect an individual be armed and – as a separate consideration – also dangerous.

Robinson correctly noted that West Virginia generally permits its citizens to acquire permits to arm themselves with concealed weapons. Therefore, Robinson contended, the suspicion that an individual is armed in and of itself does not give rise to suspicion that the individual is dangerous. Robinson conceded that Officer Hudson’s stop of the Camry was lawful. Thus, this challenge turns on the “armed and dangerous” language of the Terry opinion.

Robinson misconstrues both the language of Terry and the Supreme Court’s jurisprudence regard frisks. The Court does use the phrase “armed and dangerous” near the end of the Terry opinion. However, in the preceding discussion regarding the legality of frisks, the Court stated that an officer may frisk a lawfully-stopped individual if “a reasonably prudent man would have been warranted in believing [that individual] was armed and thus presented a threat to the officer’s safety.”

The Court applied the Terry doctrine to traffic stops in Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977). The Mimms opinion echoed Terry, holding that an officer’s frisk of a lawfully-stopped individual was proper where the officer reasonably believed the individual was “armed and thus posed a serious and present danger to the safety of the officer.”

The language of the Terry and Mimms opinions is fatal to Robinson’s argument. The phrase “armed and dangerous” does not, as Robinson argued, create a two element test wherein an officer must have reasonable suspicion that an individual is armed and also dangerous. Rather, Terry and its progeny state that, where an individual is reasonably suspected of being armed, they are presumed dangerous as a matter of law and fact.

Robinson’s argument also fails to account for the factual circumstances of his stop. First, an anonymous tip reported a man concealing a gun in a high-crime, high-drug activity area. The tip was then corroborated when the responding officers observed Robinson and the female driver in the blue-green Camry heading south away from the 7-Eleven. Further, Robinson’s “oh, crap” look to Captain Roberts was reasonably perceived as an evasive response to a direct question about being armed.

The Fourth Circuit also noted that widespread legal concealed carry does not render the presence of a firearm somehow less dangerous. The court held that concerns for officer safety logically permit an officer to secure a firearm when that officer lawfully stops an unknown individual who is reasonably suspected of being armed.

In sum, when an individual is lawfully stopped by law enforcement and that individual is reasonably suspected of being armed, that individual is therefore suspected of being dangerous as a matter of law. Therefore, Robinson’s Fourth Amendment rights were not violated when he was frisked.

                                                                    Disposition

The Fourth Circuit affirmed the district court’s denial of Robinson’s motion to suppress the firearm. Robinson was lawfully stopped, and based on the facts of this case, the responding officers reasonably suspected that Robinson was armed and thus dangerous. Therefore, Captain Roberts’ frisk of Robinson was permissible, and the firearm recovered pursuant to that frisk was admissible as evidence against Robinson.

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