Filed: Apr. 07, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D In the April 7, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ m 04-30676 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS BARRY C. GRIER, ALSO KNOWN AS BARRY CORNELIUS GRIER, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Louisiana m 3:03-CR-30031-02-RGJ _ Before SMITH, DENNIS, and session with intent to distribute cocaine and PRADO, Circuit Ju
Summary: United States Court of Appeals Fifth Circuit F I L E D In the April 7, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ m 04-30676 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS BARRY C. GRIER, ALSO KNOWN AS BARRY CORNELIUS GRIER, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Louisiana m 3:03-CR-30031-02-RGJ _ Before SMITH, DENNIS, and session with intent to distribute cocaine and PRADO, Circuit Jud..
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United States Court of Appeals
Fifth Circuit
F I L E D
In the April 7, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-30676
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BARRY C. GRIER,
ALSO KNOWN AS BARRY CORNELIUS GRIER,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 3:03-CR-30031-02-RGJ
______________________________
Before SMITH, DENNIS, and session with intent to distribute cocaine and
PRADO, Circuit Judges. marihuana in violation of 21 U.S.C. §§ 841-
(a)(1) and 846. Finding no error, we affirm.
JERRY E. SMITH, Circuit Judge:*
I.
Barry Grier appeals his conviction of pos- Grier was the passenger in a vehicle driven
by Tommy Howard, heading east on Interstate
20 toward Atlanta, Georgia. Right before the
*
Pursuant to 5TH CIR. R. 47.5, the court has Camp Road exit in Ouachita Parish, Louisiana,
determined that this opinion should not be publis- a sign warns motorists of a “narcotics check-
hed and is not precedent except under the limited point” ahead, although no such checkpoint
circumstances set forth in 5TH CIR. R. 47.5.4. actually existed. Howard passed the sign and
promptly took the Camp Road exit. Deputy tioning of Grier and asked Howard whether
Sheriff David Crane was parked at the bottom any weapons were in the vehicle. Howard
of the exit and witnessed the vehicle driving immediately laughed and said no. Crane then
eastbound in the westbound lane. Crane asked Grier whether there were any illegal
immediately pulled over the vehicle for im- narcotics. Howard looked at the vehicle, and
proper lane usage. then back at Crane with a nervous look, then
laughed and said no.
When Howard opened his window, Crane
detected an overwhelming scent of fabric soft- Crane asked Howard whether he could
ener. He asked Howard for his driver’s li- search the vehicle, and Howard consented.
cense; Howard complied but avoided eye con- During the search, he discovered several bricks
tact. Crane initiated a driver’s license check of cocaine hidden under the seats of the vehi-
during which he questioned Howard about his cle and several bricks of marihuana in the trun-
itinerary. Howard stated that he was taking k, wrapped in fabric softener sheets and plastic
Grier to see Grier’s father in Atlanta and that wrap.
Camp Road was a shortcut. He explained that
he was Grier’s cousin, and he named their Grier moved to suppress the discovered
mothers. Howard acknowledged that he was drugs on the ground that they are fruit of an
driving on the wrong side of the road because illegal seizure under the Fourth Amendment.
he was distracted by watching Crane in his During the hearing on the motion to suppress,
rearview mirror. Crane testified that he had reasonable suspi-
cion that Grier and Howard were involved in
Crane proceeded to ask Grier similar ques- illegal narcotics activity based on (1) the stro-
tions about their itinerary. Grier confirmed ng odor of fabric softener, which he knew to
that they were headed to Atlanta to visit his be frequently used as a masking agent by drug
father and that he was Howard’s cousin. He smugglers; (2) the fact that they were both
gave a name for his own mother that was dif- very nervous as he approached the vehicle and
ferent from the name Howard had stated, and asked him questions; (3) the inconsistent an-
he could not give the name of Howard’s moth- swers about their relationship to each other;
er, his claimed aunt. Crane then asked Grier and (4) the differences in their reactions when
whether there were any weapons in the vehi- asked about having either weapons or drugs.
cle. Grier immediately laughed and said no. The district court denied the motion to sup-
Crane then asked whether any there were any press.
illegal drugs. Grier glanced around the inside
of the vehicle, then laughed and responded in After the hearing, but before the ruling,
the negative. Grier filed a motion to supplement the hearing
record with other evidence, including tran-
The government concedes that although the scripts of the local police department’s radio
computer check took four to five minutes, it is transmissions for the evening of the stop, and
uncertain when in the course of events the dis- Crane’s testimony at his bond hearing. Al-
patcher replied, and it could have been as early though he did not proffer any of these items
as immediately before or during the question- for the court’s review, he argued that they
ing of Grier. After determining that Howard’s would prove that the stop was pretextual. The
license was valid, Crane concluded his ques- district court denied the motion.
2
II. no longer than is necessary to effect the pur-
Grier argues that the evidence was the fruit pose of the stop, unless further reasonable
of an illegal stop under the Fourth Amend- suspicion, supported by articulable facts,
ment.1 Grier does not object to the validity of emerges.” Id. The essence of Grier’s argu-
the initial traffic stop for driving in the wrong ment is that the seizure was unconstitutionally
lane, but rather challenges the scope of the extended beyond the amount of time the of-
valid stop. ficer needed to investigate the traffic offense
without sufficient reasonable suspicion of drug
As a threshold matter, we analyze vehicle trafficking.
stops in accordance with of Terry v. Ohio, 392
U.S. 1 (1968),2 under which police investiga- According to the factual findings made by
tory stops are reviewed in two steps: We in- the district court, the officer detected the stro-
quire (1) whether the officer’s actions were ng odor of fabric softener “immediately” after
justified at the inception of the stop; and Howard opened his window. The court noted
(2) then whether the officer’s subsequent ac- that Howard acted nervous during his initial
tions were reasonably related in scope to the questioning, avoided eye contact when asked
circumstances that justified the stop. See questions, and stuttered when answering, and
Brigham, 382 F.3d at 506 (citing Terry, 392 his hands were visibly shaking when he was
U.S. at 19-20). Because Grier does not object asked to step out of the vehicle. Grier does
to the justification for the initial stop, we focus not point to anything in the record to show
on the second stage of the Terry inquiry. that these factual findings were clearly errone-
ous. Although nervousness alone may not
Under the second prong of the Terry in- support reasonable suspicion of drug traffick-
quiry, we must determine whether the officer’s ing,3 the nervous and erratic behavior of the
actions after he legitimately stopped Grier driver, combined with the overwhelming scent
were “reasonably related to the circumstances of a known masking agent, did establish rea-
that justified the stop, or to dispelling his
reasonable suspicion developed during the
stop.” Brigham, 382 F.3d at 507. “This is be- 3
A stopped individual may be nervous for many
cause a detention must be temporary and last reasons, and although it might be because the
individual is trafficking drugs, the nervousness
could equally be caused by the fact that the defen-
1 dant is nervous about ha ving committed a wide
In reviewing a ruling on a motion to suppress,
we review factual findings for clear error and ques- variety of other crimes, including the very traffic
tions of law de novo. See United States v. offense for which he was pulled over for. In Unit-
Brigham, 382 F.3d 500, 506 n.2 (5th Cir. 2004). ed States v. Dortch,
199 F.3d 193, 199 (5th Cir.
The evidence is considered in the light most fa- 1999), we concluded that suspicious and incon-
vorable to the prevailing party. See
id. (citing sistent answers, nervousness, confusion as to the
United States v. Orozco,
191 F.3d 578, 581 (5th relationship of the defendant to the vehicle’s owner
Cir. 1999)). and the defendant’s absence as an authorized driver
on the renal contract “gave rise only to a reason-
2
See United States v. Brigham, 382 F.3d 500, able suspicion that the car might have been stolen”
506 (5th Cir. 2004) (citing Berkemer v. McCarty, and none of these factors established “reasonable
468 U.S. 420, 439 (1984); Pennsylvania v. or articulable suspicion that [the defendant] was
Mimms,
434 U.S. 106, 109 (1977)). trafficking in drugs.”
3
sonable suspicion for drug trafficking, so cause to believe that he has committed a traffic
Crane had the authority to continue the inves- violation, irrespective of the officer’s subjec-
tigation even after the initial investigation for tive motivation for the stop.6
the traffic offense had concluded.4
AFFIRMED.
III.
Grier contends that the district court erred
in denying his motion to supplement the sup-
pression hearing record. We review this ruling
for abuse of discretion.5 Grier argues that the
court erred in refusing to supplement the rec-
ord with evidence that would indicate that the
initial traffic stop was pretextual. The court
did not abuse its discretion in refusing to
supplement the record for this purpose, be-
cause it is well established that an officer may
permissibly stop a driver if there is probable
4
The government argues that other facts in the
record support the district court’s conclusion that
reasonable suspicion existed for drug trafficking,
including the inconsistent answers given by both
men about their common relatives, and the differ-
ences in their reactions between Crane’s questions
about whether they had any firearms or narcotics.
Although these might support the district court’s
finding that reasonable suspicion existed in this
case, we do not consider them, because the gov-
ernment concedes that these questions might have
been asked after the computer check came back
clean. Because the strong odor of fabric softener,
combined with the nervousness, gave rise to a rea-
sonable suspicion of drug trafficking, and because
the district court did not commit clear error in its
determination that these facts were available to
Crane before the conclusion of his investigation of
6
the initial reason for the traffic stop, we do not See Whren v. United States, 517 U.S. 806
need to determine whether the inconsistent and (1996) (holding that an initial stop is valid if there
suspicious answers were given before or after the is an objective reason for the stop regardless of
permissible length of the initial stop. subjective motivations); United States v. Castro,
166 F.3d 728, 734 (5th Cir. 1999) (en banc) (“It is
5
Cf. United States v. George, 201 F.3d 370, well settled that the reasonableness inquiry under
372 (5th Cir. 2000) (stating that the standard of re- the Fourth Amendment is an objective one, wholly
view for a district court’s ruling on admissibility of divorced from the subjective beliefs of police of-
evidence at trial is for abuse of discretion). ficers.”)
4
