Filed: Mar. 04, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4340 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ROBERT WILSON DRIVER, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:10-cr-00169-MOC-1) Submitted: January 18, 2013 Decided: March 4, 2013 Before SHEDD, DUNCAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Joshua B. Carpenter,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4340 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ROBERT WILSON DRIVER, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:10-cr-00169-MOC-1) Submitted: January 18, 2013 Decided: March 4, 2013 Before SHEDD, DUNCAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Joshua B. Carpenter, T..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4340
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT WILSON DRIVER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00169-MOC-1)
Submitted: January 18, 2013 Decided: March 4, 2013
Before SHEDD, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joshua B. Carpenter, Thomas N. Cochran, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Amy E.
Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Wilson Driver pled guilty to being a felon in
possession of a firearm. His conditional guilty plea reserved
the right to an appeal from the denial of his motion to
suppress. On appeal, he asserts that police officers
unreasonably detained him beyond the permissible scope of a
traffic stop. We affirm.
In considering the district court’s denial of a motion
to suppress, we review the district court’s legal determinations
de novo and its factual determinations for clear error. When
the district court has denied a suppression motion, we must
construe the evidence in the light most favorable to the
Government. United States v. Mubdi, 691 F.3d 334, 339 (4th Cir.
2012), petition for cert. filed (Nov. 8 & 21, 2012).
Temporary detention during an ordinary traffic stop is
a limited seizure, and this court employs the Supreme Court’s
analysis for investigative detention used in Terry v. Ohio, 392
U.S. 1 (1968), to determine the limits of police
conduct. United States v. Guijon–Ortiz,
660 F.3d 757, 764 (4th
Cir. 2011). Terry requires a dual inquiry: (1) whether the
officer’s actions were justified at their inception, and (2)
whether the continued stop was “sufficiently limited in scope
and duration to satisfy the conditions of an investigative
seizure.” Florida v. Royer,
460 U.S. 491, 500 (1983) (plurality
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opinion). Regarding the first factor, Driver does not dispute
that Officer Wright was justified in pulling the car over for
erratic driving, and thus, there is no challenge to the
conclusion that the initial stop of Driver’s vehicle was proper.
Turning to the second inquiry under Terry, we must
determine whether Wright “diligently pursue[d] the investigation
of the justification for the stop.” Guijon-Ortiz, 660 F.3d at
766 (internal quotation marks omitted). A lawful traffic stop
justifies detaining the vehicle’s occupants for the time
necessary to request a driver’s license and vehicle
registration, run a computer check, and issue a
citation. United States v. Digiovanni, 650 F.3d 498, 507 (4th
Cir. 2011). While the officer may briefly inquire into
unrelated matters, the officer may not “definitively abandon[]
the prosecution of the traffic stop and embark[] on another
sustained course of investigation” absent additional
justification. Guijon-Ortiz, 660 F.3d at 766 (internal
quotation marks omitted).
To prolong a traffic stop beyond a de minimus delay,
an officer “must possess a justification for doing so other than
the initial traffic violation that prompted the stop in the
first place.” United States v. Branch, 537 F.3d 328, 336 (4th
Cir. 2008). This requires “either the driver’s consent or a
‘reasonable suspicion’ that illegal activity is afoot.” Id.
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When determining whether reasonable suspicion exists, we look at
the totality of the circumstances and analyze whether the
officer has a particularized, objective basis for suspecting
legal wrongdoing. United States v. Arvizu, 534 U.S. 266, 273
(2002). When evaluating the legality of a Terry stop, courts
have been instructed to “take a commonsense and contextual
approach[.]” Branch, 537 F.3d at 336.
We conclude that reasonable suspicion of criminal
activity existed at the moment (if not before) that Christopher
Ellison arrived on the scene and was determined to be in
possession of marijuana. Ellison walked out of the woods
shortly after the car in which Driver was the passenger was
stopped. Herron, Driver’s girlfriend, was driving. Ellison was
frisked and stated that he was planning to meet Driver and
Herron. At this point in time, at most nine minutes after
Driver’s vehicle was stopped, the officers could briefly extend
the stop for a period of time reasonably necessary to confirm or
dispel their suspicions. See United States v. Vaughan, 700 F.3d
705, 710 (4th Cir. 2012). In the course of the next ten
minutes, Officer Herrera separated Herron and Driver, frisked
Driver, and obtained Herron’s permission to search the vehicle,
which we conclude were necessary and reasonable actions to take
based on the officers’reasonable suspicion of criminal activity.
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During the period of time between the initial stop and
the gathering of reasonable suspicion, we find that Wright
“diligently pursue[d] the investigation of the justification for
the stop.” Guijon-Ortiz, 660 F.3d at 766 (internal quotation
marks and citation omitted). In those nine minutes, Wright’s
actions were consistent with the prosecution of a traffic stop:
he secured the area, including dealing with the unexpected
arrival of Ellison; he waited briefly for back-up; he obtained
identification from Herron; and he ran record checks on the
identification and the vehicle’s tags. Based on the foregoing,
neither the stop nor Wright’s actions prior to the point where
the stop was prolonged based on reasonable suspicion violated
the Fourth Amendment.
Driver argues that Wright, very early in the
encounter, abandoned any pretense of a traffic-infraction
investigation and instead conducted a robbery-suspect
investigation. Driver points to the facts that Wright never
requested the car rental agreement, that Wright refused to tell
Driver and Herron why they were being stopped, and that Herrera
was not even aware that a traffic violation was alleged when he
sought Herron’s permission to search. As such, Driver contends,
once Wright finished checking Herron’s information, the stop
should have ended. Because this happened prior to seeking
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consent from Herron, Driver argues that the continued seizure
was improper.
However, the appropriate inquiry is whether Wright
completed his traffic-infraction investigation prior to the time
the officers obtained reasonable suspicion that criminal
activity was afoot. If the traffic-infraction investigation
ended prior to the establishment of reasonable suspicion, Herron
and Driver should have been sent on their way. Once the
officers had reasonable suspicion, however, they were justified
in prolonging the stop to investigate. We conclude that the
officers had this reasonable suspicion at a point in time when
Wright was either still investigating the traffic violation or
had just completed it. Thus, there was no time during Driver’s
detention when the officers were not either properly
investigating the traffic violation or properly investigating
their reasonable suspicion of criminal activity.
Driver also argues that the officers did not have
reasonable suspicion that criminal activity was afoot. Driver
contends that Ellison was unarmed and cooperative and that even
the officers did not believe that Herron or Driver were involved
with the marijuana found on Ellison. Therefore, according to
Driver, the relevant factors, even taken together, are
insufficient to show reasonable suspicion that Driver was
planning to commit a burglary or robbery.
6
Based upon our review of the record, when the stop was
prolonged, officers knew that (1) Driver was out past his
probation curfew; (2) Driver was in a pitch black neighborhood
he did not ordinarily frequent and in which he had no known
associates; (3) Driver was a suspect in two recent robberies
based on the physical description of the assailant and his
vehicle and Driver’s criminal record; (4) Driver’s criminal
history included robbery and breaking-and-entering convictions;
(5) Driver was far from home in an upper-middle-class
neighborhood with no lighting; (6) on the way to the
neighborhood, the driver of the car had driven recklessly and
evasively; (7) the car initially drove off down a dead end
street when Wright’s marked police car approached; and (8)
almost immediately after the car was stopped, Ellison appeared
from the woods, carrying marijuana, and explaining that he was
there to meet Driver and Herron. While most of these individual
factors might be consistent with innocent behavior, these
circumstances, viewed in their totality, could “give rise to
reasonable suspicion” that Driver and Herron had driven to this
neighborhood to meet Ellison and commit a robbery or
burglary. United States v. Mason, 628 F.3d 123, 129 (4th Cir.
2010) (internal quotation marks omitted). Since context does
matter and respect for the training and expertise of officers
must be given due weight, we conclude that the officers
7
possessed specific and articulable facts sufficient to justify
prolonging the stop. See Branch, 537 F.3d at 336; see
also United States v. Clarkson, 551 F.3d 1196, 1202 (10th Cir.
2009) (holding that time of night and a match of even a general
suspect description are relevant factors in determining
reasonable suspicion); United States v. Padilla,
548 F.3d 179,
188 (2d Cir. 2008) (noting that it is proper to consider
officers’ experience and familiarity with a particular area and
its inhabitants, as well as the fact that Defendant chose an
unlit route). Accordingly, Herron’s consent to the search of
the car was valid.
We therefore affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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