Filed: Apr. 30, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4118 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KOOROSH DASHTIANPOOR ROACH, a/k/a Dash, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:09-cr-00684-PMD-1) Argued: March 23, 2012 Decided: April 30, 2012 Before Sandra Day O'CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitt
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4118 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KOOROSH DASHTIANPOOR ROACH, a/k/a Dash, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:09-cr-00684-PMD-1) Argued: March 23, 2012 Decided: April 30, 2012 Before Sandra Day O'CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitti..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4118
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KOOROSH DASHTIANPOOR ROACH, a/k/a Dash,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00684-PMD-1)
Argued: March 23, 2012 Decided: April 30, 2012
Before Sandra Day O'CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, TRAXLER,
Chief Judge, and SHEDD, Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach,
South Carolina, for Appellant. Jeffrey Mikell Johnson, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: William N. Nettles, United States Attorney,
Columbia, South Carolina, Matthew J. Modica, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After Koorosh Dashtianpoor Roach was indicted in U.S.
District Court for federal drug and firearm offenses, Roach
moved to suppress evidence obtained by police during a traffic
stop. Roach contended that officers frisked and searched his
person multiple times without reasonable suspicion or probable
cause and unreasonably prolonged his detention. The District
Court rejected Roach’s arguments, holding that the frisks,
search, and detention were justified under the Fourth Amendment.
We now affirm.
I
Based on an informant’s tip that Roach was selling
heroin, police set up surveillance of a North Charleston
residence. Police had obtained a search warrant for a different
address associated with Roach, but had learned from the
informant that Roach was operating out of the North Charleston
residence.
Officers saw numerous vehicles arrive at the residence
and leave shortly thereafter. When one vehicle arrived, Roach
approached the driver’s side window and interacted with the
passengers for two minutes until the vehicle departed. Officers
stopped the departing vehicle, found heroin, and learned from
the driver that he had purchased the heroin from “Dash” —
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Roach’s nickname. When a second vehicle arrived, Roach got into
the car, which drove to the perimeter of the subdivision and
back, before getting out less than two minutes later. Officers
stopped this vehicle as well and heard their narcotics-detection
dog alert, though they found no heroin. When a third vehicle
arrived, its driver entered the residence and exited promptly.
When a fourth vehicle arrived, Roach again got into the car. At
this point, an officer relayed the situation and descriptions of
the vehicle, driver, other passenger, and Roach’s attire to
other officers over the radio.
Officers Kruger and Burnem received the information.
After identifying the car and seeing Roach in the front seat,
they followed the vehicle. When they saw Roach throw a
cigarette butt out of the window, they initiated a traffic stop
for littering.
Officer Burnem detained the driver, who, after parking
the car, had rushed out while leaving the door open. Officer
Kruger, meanwhile, approached the passenger’s side of the car
and saw Roach reaching behind him and into his pants and
waistband area with both hands. Officer Kruger drew his weapon,
opened up the backseat door, and ordered Roach to show his
hands. Both officers testified that Roach raised his hands yet
repeatedly brought them back down towards his pants and
waistband area.
3
Officer Kruger ordered Roach out of the car. Once
out, Roach volunteered something to the effect of, “Go ahead and
search me. I have nothing on me.” J.A. 81. Officer Kruger
testified that when he began the patdown, however, Roach
persisted in bringing his hands and elbows to his waist area and
resisted spreading his legs and stepping away from the car.
Officer Kruger then handcuffed Roach before patting down his
chest and pockets. At that point, Officer Kruger passed Roach
off to Officer Burnem while he went to inspect the car.
Officer Burnem patted down Roach’s legs and discovered
a golf ball size bulge by Roach’s buttocks area. Officer Burnem
discontinued his patdown and informed Detective Pritchard of the
Police Department’s Narcotics Division of the bulge, which he
believed to be drugs. At that moment, a narcotics-detection dog
alerted near Roach’s car seat.
Detective Pritchard then patted down Roach. Once he
confirmed the bulge, he asked Roach to remove the object. Roach
stated that he could not do so while handcuffed, but Detective
Pritchard did not feel comfortable uncuffing him. He testified
that he asked Roach whether the object was illegal and that
Roach nodded his head. Detective Pritchard put on gloves,
loosened Roach’s belt, pulled back his pants, and saw a plastic
bag. Touching only the bag, he reached down and pulled it out
without searching Roach’s anal cavity or exposing his buttocks
4
to public view. The bag contained eleven glassine bags with a
total of .44 grams of heroin and .67 grams of cocaine base.
Roach was placed under arrest. As he walked toward
the patrol car, a loaded 9mm pistol dropped out of his pants
leg. Roach later informed officers that he had concealed the
weapon by moving it around his waistband with his elbow.
Roach moved to suppress the drugs and the firearm
seized during the traffic stop. The District Court denied the
motion. Roach was convicted of possessing heroin and cocaine
base with intent to distribute it, possessing a firearm as a
felon, and possessing a firearm in furtherance of a drug
trafficking offense. See 18 U.S.C. §924(c)(1); 21 U.S.C.
§841(a)(1), (b)(1)(B), (c)(1)(C); 18 U.S.C. §§922(g)(1),
924(a)(2). He was sentenced to 130 months in prison and six
years of supervised release.
II
On appeal, Roach contends that the police officers
violated the Fourth Amendment’s proscription against
“unreasonable searches and seizures” because (1) there was no
reasonable suspicion to justify more than one frisk; (2) there
was no probable cause to justify a search of his person; and (3)
the detention was unreasonably prolonged. We address each
contention in turn, construing the evidence in the light most
5
favorable to the Government, the prevailing party below. See
United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
A
We first address Roach’s argument that the police
officers lacked justification to frisk him more than once.
The Supreme Court has long emphasized the “especially
hazardous” risks of traffic stops for police officers. Michigan
v. Long, 463 U.S. 1032, 1049 (1983). To ensure officer safety
and the safety of others, the Court has held that a police
officer may, as a matter of course, “order passengers to get out
of the car pending completion” of a lawful traffic stop.
Maryland v. Wilson,
519 U.S. 408, 410, 415 (1997). A police
officer may then, pursuant to Terry v. Ohio,
392 U.S. 1 (1968),
pat down the passenger so long as there is “reasonable suspicion
that the person subjected to the frisk is armed and dangerous.”
Arizona v. Johnson,
555 U.S. 323, 326 (2009). “Reasonable
suspicion” is a “less demanding standard than probable cause,”
requiring a showing “considerably less than preponderance of the
evidence.” Illinois v. Wardlow,
528 U.S. 119, 123 (2000).
This Court has held that the reasonable suspicion
standard “may be satisfied by an officer’s objectively
reasonable suspicion that drugs are present in a vehicle that he
lawfully stops.” United States v. Sakyi, 160 F.3d 164, 169 (4th
6
Cir. 1998); cf. United States v. Perrin, 45 F.3d 869, 873 (4th
Cir. 1995) (“it is certainly reasonable for an officer to
believe that a person engaged in selling of crack cocaine may be
carrying a weapon for protection”). “The indisputable nexus
between drugs and guns presumptively creates a reasonable
suspicion of danger to the officer.”
Sakyi, 160 F.3d at 169.
In this case, it bears emphasis that, at the time of
the traffic stop, the officers had reasonable suspicion not just
of the littering violation but also that drugs were present in
the car. A confidential informant had tipped off the police of
Roach’s involvement in the distribution of heroin. Surveillance
at the North Charleston residence of Roach’s interactions with
several vehicles that day had been consistent with drug
transactions. Officers had discovered heroin in one vehicle
leaving the residence, which they learned had been purchased
from Roach. A narcotics-detection dog had alerted by another
departing vehicle. Taken together, those objective facts
established reasonable suspicion that Roach was engaged in drug
crimes, and accordingly, reasonable suspicion that Roach was
carrying or using a weapon.
Roach’s conduct during the stop only heightened the
officers’ suspicion that he possessed a weapon. Roach was seen
contorting his body, sitting “upright” and “half off the [front
passenger’s] seat.” J.A. 74-75. While in that strange posture,
7
he repeatedly thrust both hands behind him toward his pants and
waistband area, all the while watching Officer Burnem, who was
at the time preoccupied with the driver. Roach persisted in
these movements, moreover, even after Officer Kruger opened the
back door of the car and ordered Roach to put his hands up.
Those movements, consistent with concealing or retrieving a
weapon, would have led a reasonably prudent officer to fear for
his or her safety. See United States v. Hamlin, 319 F.3d 555,
561-672 (4th Cir. 2003) (defendant’s “repeated attempts to reach
toward his groin area gave [the officer] reason to believe that
[the defendant] was armed and dangerous”). Meanwhile, the
driver’s odd behavior upon being stopped — namely, exiting the
vehicle rapidly while leaving the car door ajar — reinforced the
officers’ apprehension.
Given these circumstances, Roach appears to concede
that Officer Kruger had sufficient justification to perform an
initial Terry frisk for the presence of weapons. See Brief of
Appellant at 13 (“Officer Kruger may have developed a reasonable
suspicion to search Roach”). Roach argues, however, that any
authority to frisk him under Terry vanished as soon as Officer
Kruger’s patdown uncovered no weapon. In Roach’s view, any
subsequent patdown was unlawful because Officer Kruger’s failure
to detect a weapon on him allayed any reasonable suspicion.
8
The perception of danger, however, did not dissipate
with Officer Kruger’s frisk. As an initial matter, Roach
impeded Officer Kruger’s patdown by defying his instructions.
He repeatedly brought his hands and elbows down to his waistband
area, sought to remain close to the car, and resisted spreading
his feet apart. Those movements indicated that Roach was
concerned about something Officer Kruger might find. Indeed,
Officer Kruger testified that he was compelled to handcuff Roach
during the frisk because Roach’s movements caused him to be
concerned “for officer safety.” J.A. 82.
Officer Kruger’s initial patdown, moreover, was hardly
comprehensive. Officer Kruger testified that he only patted
down Roach’s chest and pockets before handing Roach over to
Officer Burnem in order to turn his attention to the vehicle.
The inseam of Roach’s legs was not patted down until Officer
Burnem took over; it was thus Officer Burnem who noted the
suspicious bulge by Roach’s buttocks for the first time.
More generally, we disagree with Roach’s suggestion
that Officer Kruger alone could check him for weapons. This was
a fluid, rapidly developing situation that unfolded within
minutes, involving the apprehension of multiple persons and the
potential concealment of a weapon in the vehicle. Under such
circumstances, Roach’s request that we strictly limit the
opportunity to perform a protective frisk to only one officer
9
would impose impractical constraints on officers’ ability to
screen for weapons and to coordinate among themselves in
establishing police command over the scene. Such limits would
be at odds with our efforts to apply the “reasonable suspicion”
standard with “common sense, nontechnical conceptions that deal
with factual and practical considerations of everyday life on
which reasonable and prudent persons, not legal technicians,
act.” United States v. Foreman, 369 F.3d 776, 781 (4th Cir.
2004).
At bottom, nothing in Officer Kruger’s initial patdown
of Roach’s chest and pockets negated the objective circumstances
justifying a frisk. Thus, Officer Burnem, like Officer Kruger,
lawfully frisked Roach based on a reasonable — and, as it turns
out, accurate — suspicion that Roach was armed.
B
We next address Roach’s contention that Detective
Pritchard conducted an illegal search of his person. Roach
argues that because a search of one’s person is more intrusive
than a frisk of one’s outer clothing, “probable cause” is
required to justify the search.
In this case, “probable cause” supported Detective
Pritchard’s search. As noted, the confidential informant, the
surveillance, and the information and heroin obtained from at
10
least one departing vehicle all connected Roach to drug crimes,
and Roach’s strange movements during the traffic stop heightened
concerns that he was concealing something on his person. In
addition, when Detective Pritchard approached Roach, he knew
that Officer Burnem had detected a golf ball size bulge by
Roach’s buttocks area that, based upon Officer Burnem’s training
and experience, was indicative of illegal drugs. Detective
Pritchard also witnessed the narcotics-detection dog alert by
the front passenger’s seat of the car where Roach had been
sitting. Moreover, when Detective Pritchard asked Roach if the
substance in the bulge was illegal, Roach nodded affirmatively.
In their totality, these factors sufficed for probable cause to
believe Roach was hiding drugs in his pants.
Roach argues that Detective Pritchard could not rely
on Officer Burnem’s detection of the bulge because Officer
Burnem’s Terry frisk was unlawful. For reasons already
discussed, we reject as erroneous Roach’s premise that Officer
Kruger’s initial frisk negated reasonable suspicion that he was
armed and rendered the subsequent frisks unlawful.
Roach also argues that Terry frisks are limited to
searching for weapons and that Detective Pritchard could not
search his pants unless he believed the bulge to be a weapon.
But Roach misstates the governing law. Under the “plain feel”
doctrine set forth in Minnesota v. Dickerson, 508 U.S. 366
11
(1993), an officer may seize contraband other than weapons
during a lawful Terry search so long as the officer “feels an
object whose contour or mass makes its identity immediately
apparent.” Id. at 375; see also United States v. Hernandez-
Mendez,
626 F.3d 203, 213 (4th Cir. 2010). Here, the identity
of the bulge as contraband was “immediately apparent” to the
officers. Detective Pritchard’s removal of the contraband was
therefore justified under the “plain feel” doctrine.
Finally, Roach argues that the dog’s alert, which
indicated the presence of narcotics in the vehicle, was not
sufficiently particularized cause to search him. The dog,
however, specifically alerted by the front passenger’s seat
where Roach had been sitting. Moreover, probable cause is not
based on any single factor in isolation, but rather on the
totality of the circumstances.
Here, the totality of the circumstances justified
Detective Pritchard’s search of Roach.
C
Finally, we consider Roach’s contention that the
officers unreasonably prolonged his detention and exceeded the
initial justification for the traffic stop. Roach argues that
the officers, despite stopping him for a littering violation,
12
improperly extended the detention in order to provide more time
for the narcotics-detection dog to arrive.
“The maximum acceptable length of a routine traffic
stop cannot be stated with mathematical precision.” United
States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008). “Instead,
the appropriate constitutional inquiry is whether the detention
lasted longer than was necessary, given its purpose.”
Id. If
an officer extends the detention beyond the scope of a routine
traffic stop, he or she must possess either the person’s consent
or a “reasonable suspicion” that illegal activity is afoot.
Id.
We note that an officer’s mere inquiry into matters
beyond the initial justification for the stop — in this case,
littering — does not automatically render the traffic stop
unduly prolonged or unlawful. “Normally, the stop ends when the
police have no further need to control the scene, and inform the
driver and passengers they are free to leave.”
Johnson, 555
U.S. at 325. Thus, “[a]n officer’s inquiries into matters
unrelated to the justification for the traffic stop ... do not
convert the encounter into something other than a lawful
seizure, so long as those inquiries do not measurably extend the
duration of the stop.”
Id.
Here, we readily conclude that the officers’ frisks of
Roach, while unrelated to the littering violation, did not
“measurably extend the duration of the stop.” Although Roach
13
contends that the officers unreasonably prolonged the stop to
await the narcotics-detection dog, the district court found that
the dog arrived within approximately two minutes of the
initiation of the stop. Roach’s claim that this minutes-long
“extension” amounted to dilatory action is meritless. See,
e.g., United States v. McFarley, 991 F.2d 1188, 1193 (4th Cir.
1993) (upholding 38–minute detention upon reasonable suspicion
to await arrival for narcotics-detection dog). It is especially
meritless, moreover, in light of Roach’s obstruction of Officer
Kruger’s frisk, which instigated the imposition of handcuffs and
thereby contributed to the duration of the stop. See United
States v. Sharpe,
470 U.S. 675, 687-688 (1985) (“We reject the
contention that a 20-minute stop is unreasonable when the police
have acted diligently and a suspect’s actions contribute[d] to
the added delay about which he complains”). Thus, the traffic
stop did not last longer than necessary.
Moreover, even if the detention did exceed the
duration of a routine stop, the officers had “reasonable
suspicion” that illegal narcotics activity was afoot. See
Branch, 537 U.S. at 336. That suspicion existed before the stop
and increased during the stop in light of the driver’s actions,
Roach’s movements in the car, Roach’s resistance while being
frisked, and the bulge discovered in Roach’s buttocks area.
14
In short, we conclude that Roach’s detention was not
unreasonably prolonged, but that even if it were, the officers
possessed the requisite reasonable suspicion of a crime to
justify its duration.
* * *
For the foregoing reasons, we affirm the district
court’s denial of Roach’s motion to suppress.
AFFIRMED
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