Filed: Apr. 21, 2016
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4736 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MICHAEL JEROME PALMER, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:14-cr-00031-RGD-DEM-1) Argued: December 10, 2015 Decided: April 21, 2016 Before WILKINSON, KING, and WYNN, Circuit Judges. Affirmed by published opinion. Judge King wrote the opinion, in w
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4736 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MICHAEL JEROME PALMER, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:14-cr-00031-RGD-DEM-1) Argued: December 10, 2015 Decided: April 21, 2016 Before WILKINSON, KING, and WYNN, Circuit Judges. Affirmed by published opinion. Judge King wrote the opinion, in wh..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4736
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL JEROME PALMER,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:14-cr-00031-RGD-DEM-1)
Argued: December 10, 2015 Decided: April 21, 2016
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Wilkinson and Judge Wynn joined. Judge Wynn wrote a
separate concurring opinion.
ARGUED: James Orlando Broccoletti, ZOBY, BROCCOLETTI & NORMILE,
PC, Norfolk, Virginia, for Appellant. Christopher John
Catizone, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States
Attorney, Alexandria, Virginia, Darryl J. Mitchell, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellee.
KING, Circuit Judge:
Michael Jerome Palmer appeals the district court’s denial
of his motion to suppress drug and firearm evidence seized by
police officers during a traffic stop in Chesapeake, Virginia.
The court conducted an evidentiary hearing and, in early May
2014, rendered its ruling in favor of the government. As
explained below, we are satisfied that the officers did not
contravene the Fourth Amendment and thus affirm.
I.
A.
In April 2014, the federal grand jury in Norfolk, Virginia,
indicted Palmer on two offenses: possession with intent to
distribute crack cocaine, in contravention of 21 U.S.C.
§ 841(a)(1); and being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Palmer moved to suppress
the drug and firearm evidence underlying the charges, which
Chesapeake officers had seized during the October 2013 traffic
stop of a vehicle driven by Palmer. In May 2014, the district
court denied Palmer’s suppression motion. See United States v.
Palmer, No. 2:14-cr-00031 (E.D. Va. May 5, 2014), ECF No. 35
(the “Opinion”). In June 2014, Palmer pleaded guilty to both
offenses in the indictment, but reserved the right to appeal the
suppression ruling. In September 2014, the court sentenced him
2
to sixty-one months in prison. Palmer timely noted this appeal,
and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
B.
1.
Because the district court denied Palmer’s motion to
suppress, we recount the facts in the light most favorable to
the government. See United States v. Watson, 703 F.3d 684, 689
(4th Cir. 2013). On October 15, 2013, Officer Ring of the
Chesapeake police was patrolling that city’s Ipswich
neighborhood. During his patrol, Ring stopped Palmer, who was
driving a silver Nissan Altima, on Paramont Avenue. When Ring
exited his patrol car and greeted Palmer through the driver-side
window of the Nissan, he smelled an overwhelming odor of air
freshener. He saw at least five air fresheners inside the car,
some hanging in the passenger compartment and others plugged
into the air-conditioning vents. Ring advised Palmer that he
had been stopped because the Nissan’s windows were too darkly
tinted, in violation of state law, and also because the
inspection sticker on the vehicle’s front windshield appeared
fraudulent. Ring then obtained Palmer’s driver’s license and
the vehicle’s registration card, and returned to his patrol car
to make a database check.
From the driver’s license and registration Officer Ring
learned that Palmer listed a P.O. box as his address and that
3
the Nissan was registered to a woman who was not present.
Within minutes of beginning the database check, Ring also
learned that Palmer was a suspected member of a gang called the
Bounty Hunter Bloods, according to a “caution” notice issued by
the nearby Norfolk Police Department. See Opinion 2. Ring
advised his colleague, Officer Blount — who was also on the
scene — of Palmer’s purported gang affiliation, and asked Blount
about the availability of a drug dog.
Officer Ring also sought information on Palmer from another
database called LInX. Ring could not initially log into the
LInX system because his former partner had changed the password.
He eventually accessed LInX, however — about seven minutes into
the traffic stop — by utilizing Officer Blount’s login
credentials. As Ring was logging into LInX and searching its
database, he called about a drug dog. Ring relayed by radio the
information that he had gathered: Palmer was nervous; there was
an overwhelming odor of air freshener from the Nissan; there
were at least five air fresheners in the car; Palmer’s driver’s
license address was a P.O. box, as opposed to a street address;
the Nissan was registered to someone other than the driver; and
Palmer was a suspected member of the Bounty Hunter Bloods.
About eleven minutes into the traffic stop, Officer Ring
identified Palmer in LInX. Ring learned that Palmer had a
criminal record that included four arrests on drug charges plus
4
an arrest for illegal possession of a firearm by a convicted
felon. As a result, Ring radioed again about a drug dog, but
was unable to confirm its availability. After completing his
LInX search, Ring returned to the Nissan from his patrol car.
Because he suspected the inspection sticker was fraudulent, Ring
decided to verify the sticker’s authenticity by looking at the
back of it, which would enable him to determine whether it was
legitimate. After asking Palmer to exit the Nissan, Ring leaned
through the open driver-side door and examined the back of the
inspection sticker. While reading the sticker — which he
concluded was legitimate — Ring smelled marijuana.
Officer Ring immediately advised Palmer that he had grounds
to search the Nissan. Because Ring wanted to be “110% sure”
that the Nissan contained drugs before searching the vehicle,
however, he again checked on the drug dog’s availability. See
Opinion 3. At that point — approximately seventeen minutes
after the traffic stop had been initiated — Ring called Officer
Duncan, who had a drug dog. About ten minutes later, Duncan
arrived with the drug dog Boomer. Duncan walked Boomer around
the Nissan, and the dog alerted twice.
Officers Ring and Duncan thereafter entered and searched
the Nissan. They discovered a clear plastic bag containing
crack cocaine in the center front console and a 40-caliber Smith
& Wesson pistol wedged between the driver’s seat and the
5
console. As a result, Palmer was arrested. After the search
and arrest, Ring measured the Nissan’s window tint. Those
measurements confirmed Ring’s initial suspicion that the
Nissan’s windows were illegally tinted. 1
2.
On April 29, 2014, the district court conducted an
evidentiary hearing on Palmer’s suppression motion. During the
hearing, Officer Ring — the prosecution’s only witness —
recounted his actions and observations during the traffic stop.
Officer Ring explained that, before the traffic stop, he
knew of numerous citizen complaints to the authorities about the
sale and use of illegal drugs in the Ipswich area. He also
described his familiarity with Virginia’s legal limits on window
tinting and said that he “could barely see into the vehicle”
that Palmer was driving. See J.A. 71-74. 2 Aside from the window
tint, Ring suspected that the Nissan’s inspection sticker was
illegal, based on his experience and having stopped numerous
vehicles with fraudulent stickers. Ring explained that he could
1 Officer Ring found that the side-front and side-rear
windows of the Nissan violated Virginia law by allowing light
transmittance of only 40% and 25%, respectively. Virginia
requires side-front windows to permit light transmittance of at
least 50%, and side-rear windows to permit light transmittance
of at least 35%. See Va. Code Ann. § 46.2-1052(C).
2 Citations herein to “J.A. __” refer to the contents of
the Joint Appendix filed by the parties in this appeal.
6
not see the perforated portion that should be observable on a
legitimate sticker. The back of a legitimate inspection
sticker, he said, shows the perforated portion and contains
information identifying the vehicle.
Although it is understandable for any person to be nervous
when interacting with the police, Officer Ring said that Palmer
“appeared to be more nervous than normal” during the traffic
stop. See J.A. 79. Specifically, Ring observed that Palmer was
“being overly cooperative but still very nervous in his
demeanor.” Id. Regarding Palmer’s liberal use of air
fresheners, Ring explained that drug traffickers often use
“heavy air freshening” to mask the “pungent odor” of marijuana.
See
id. at 80. Ring also explained that drug traffickers often
operate vehicles registered to others. That is so because, when
the police apprehend a drug trafficker, they tend not to seize
the vehicle if it is registered to someone not present.
Similarly, when Ring was asked — in light of the thousand-plus
drug investigations in which he had participated — whether a
P.O. box on a driver’s license can be indicative of involvement
in drug trafficking, he responded affirmatively.
Officer Ring also emphasized that he developed a concern
for officer safety after learning of Palmer’s suspected gang
affiliation and prior criminal record. Ring stated that
“[c]riminal street gangs are known for violence” and that his
7
department had received “intelligence reports of threats against
law enforcement specifically from the Blood gang.” See J.A. 86.
Ring explained that Palmer’s history of multiple drug arrests,
as well as his arrest for possessing a firearm as a convicted
felon, caused Ring to believe Palmer “would potentially still
have a firearm on him.” Id.
According to Officer Ring, Palmer was initially hesitant to
get out of the Nissan, and Palmer had thereafter lingered near
the vehicle’s front door until Ring requested that he move to
the car’s rear. Shortly thereafter, while Ring was inside the
passenger compartment checking the inspection sticker, he
“smell[ed] the marijuana very faintly” before his “sense of
smell [was] overwhelmed with the air freshener.” See J.A. 90.
Ring confirmed that Officer Blount smelled marijuana as well.
Officer Ring made at least two other observations that
strengthened his suspicion of criminal activity. First, Palmer
“had two cell phones on his hip.” See J.A. 93. According to
Ring, “[i]t’s common for people who distribute narcotics to have
more than one cell phone in their possession.” Id. He said
that those involved in drug trafficking often rely on one phone
to store contacts and pictures while utilizing the other phone
to arrange drug deals. Second, Ring believed that Palmer was
seeking to divert suspicion from himself as they waited for
Officer Duncan and the drug dog. Palmer “kept telling us that
8
he helps the police and that he ha[d] a contact [in] the police
department.” See id. at 95.
As the hearing ended, the district court remarked that
Officer Ring had “presented to this Court a very, very careful
appearance, one of a person who is very seriously trying to
abide by what the requirements of the law are.” See J.A. 210.
Although it was inclined to believe that Ring had acted
lawfully, the court took the suppression motion under
advisement.
C.
On May 5, 2014, within a week of the evidentiary hearing,
the district court filed its Opinion denying the suppression
motion. 3 The Opinion concluded that Officer Ring had properly
stopped the Nissan, based on suspicions of a window tint
violation and a fraudulent inspection sticker. The Opinion
explained that Ring also possessed the reasonable, articulable
suspicion of criminal activity necessary to extend the traffic
stop, identifying eight supporting factors in that regard:
3 Officer Ring made a video recording of the traffic stop
from a camera he was wearing on his uniform. After viewing the
video during the evidentiary hearing as Ring testified, the
district court observed that Ring presented “a very truthful
appearance.” See J.A. 206. The court later reviewed the video
“at a slow pace in chambers, stopping to analyze the footage
from time to time to be doubly sure of its interpretation.” See
Opinion 1.
9
• Palmer was in a high crime area where citizens
were complaining about drug dealing;
• Ring believed that the Nissan’s windows were
illegally tinted;
• Palmer was nervous;
• The Nissan emitted an “overwhelming” scent of air
freshener from the multiple air fresheners;
• Palmer was a suspected member of a violent gang
called the Bounty Hunter Bloods; 4
• Palmer’s driver’s license listed a P.O. box
address, rather than a residence;
• Palmer was driving a vehicle registered in
another person’s name; and
• Palmer had “a criminal record that included four
previous arrests for narcotics charges as well as
a charge of possession of a firearm by a
convicted felon.”
See Opinion 9. The Opinion explained that those factors, “when
taken together, [gave] rise to reasonable suspicion because they
eliminate[d] a substantial portion of innocent travelers and
indicate[d] that criminal activity [was] afoot.” Id. That is,
Ring possessed the “reasonable suspicion necessary to extend the
stop beyond its original scope and duration as soon as he
completed the computer checks.”
Id.
4The district court observed that it was “very familiar
with the Bloods and their propensity for violence,” based on
“its prior cases involving members of th[at] gang.” See Opinion
9 n.3.
10
The Opinion also explained that Officer Ring had probable
cause to search the vehicle when he first smelled marijuana and
also after the drug dog alerted. Without specifying whether
Ring’s entry to check the inspection sticker constituted a
search of the Nissan, the Opinion concluded that Ring had
“reasonable suspicion . . . to investigate the inspection
sticker’s authenticity,” and that he had dispelled that
suspicion by “the least intrusive means in a short period of
time.” See Opinion 12-13. Ring’s detection of a marijuana odor
while in the car, in turn, supplied ample cause for a search of
the Nissan. According to the Opinion, the officers were also
entitled to delay searching the vehicle and wait for a drug dog. 5
In sum, the Opinion ruled that Officer Ring had made a
legitimate traffic stop, that he had sound reasons for extending
the stop, and that his subsequent actions did not violate the
Fourth Amendment. Palmer’s motion to suppress the evidence was
therefore denied. The constitutionality of Ring’s search-and-
seizure activities is the sole question preserved by Palmer’s
conditional guilty plea.
5 The Opinion reasoned in the alternative that, even if
Officer Ring’s entry into the vehicle to examine the inspection
sticker was somehow improper, the drug and firearm evidence
could not be suppressed. That was so because “Ring’s actions
demonstrate conclusively that he would have brought the [drug
dog] to the [traffic] stop to perform the [dog sniff] test
irrespective of his entrance into the vehicle.” See Opinion 17.
11
II.
We review de novo a district court’s rulings with respect
to reasonable suspicion and probable cause. See Ornelas v.
United States, 517 U.S. 690, 699 (1996). Absent clear error, we
will not disturb factual findings made by a district court after
an evidentiary hearing on suppression issues. See United States
v. Dire,
680 F.3d 446, 473 (4th Cir. 2012). When a district
court has denied a suppression motion, we view the evidence in
the light most favorable to the government. See United States
v. Watson,
703 F.3d 684, 689 (4th Cir. 2013).
III.
On appeal, Palmer contends that Officer Ring did not have
any objectively reasonable basis for initiating the traffic stop
of the Nissan, and that Ring unreasonably expanded the scope of
the stop shortly after it began. Palmer also labels Ring’s
entry into the Nissan to view the inspection sticker as
constitutionally impermissible. The government counters that
Ring legitimately stopped Palmer for suspected traffic
violations, and that Ring’s subsequent actions were consistent
with the Fourth Amendment.
A.
Before assessing the parties’ contentions, we identify some
pertinent legal principles. The Fourth Amendment guards against
12
“unreasonable searches and seizures.” See U.S. Const. amend.
IV. A traffic stop is a “seizure” within the meaning of the
Fourth Amendment and must be reasonable under the circumstances.
See Delaware v. Prouse, 440 U.S. 648, 653-54 (1979). In that
regard, the courts assess the constitutionality of a traffic
stop under the two-prong standard articulated in Terry v. Ohio,
392 U.S. 1 (1968). See Arizona v. Johnson,
555 U.S. 323, 330-31
(2009). Pursuant thereto, we first assess whether the
articulated bases for the traffic stop were legitimate. See
United States v. Rusher,
966 F.2d 868, 875 (4th Cir. 1992).
Second, we examine whether the actions of the authorities during
the traffic stop were “reasonably related in scope” to the bases
for the seizure.
Id. (internal quotation marks omitted).
1.
As the Supreme Court has explained, Terry’s first prong is
satisfied “whenever it is lawful for police to detain an
automobile and its occupants pending inquiry into a vehicular
violation.” See Johnson, 555 U.S. at 327. Without question,
such a violation may include failure to comply with traffic
laws. See, e.g., United States v. Green,
740 F.3d 275, 279 n.1
(4th Cir. 2014) (concluding that windows “illegally tinted”
under Virginia law “justif[ied] the stop”); United States v.
Digiovanni,
650 F.3d 498, 506-07 (4th Cir. 2011) (observing that
officer made traffic stop on basis of perceived violation of
13
Maryland law that prohibits following another vehicle too
closely).
In assessing the legitimacy of a traffic stop, we do not
attempt to discern an officer’s subjective intent for stopping
the vehicle. See United States v. Branch, 537 F.3d 328, 340
(4th Cir. 2008). We simply ask whether “the circumstances,
viewed objectively, justify th[e] action.” See Whren v. United
States,
517 U.S. 806, 813 (1996) (internal quotation marks
omitted); United States v. Johnson,
734 F.3d 270, 275 (4th Cir.
2013) (observing that a traffic stop is legitimate “when
officers observe a traffic violation, regardless of their true,
subjective motives for stopping the vehicle”).
2.
Terry’s second prong restricts the range of permissible
actions that a police officer may take after initiating a
traffic stop. An officer is entitled to conduct safety-related
checks that do not bear directly on the reasons for the stop,
such as requesting a driver’s license and vehicle registration,
or checking for criminal records and outstanding arrest
warrants. See Rodriguez v. United States, 135 S. Ct. 1609,
1615-16 (2015). Generally, however, an officer’s focus must
remain on the bases for the traffic stop, in that the stop must
be “sufficiently limited in scope and duration to satisfy the
conditions of an investigative seizure.” See United States v.
14
Guijon-Ortiz, 660 F.3d 757, 764 (4th Cir. 2011) (internal
quotation marks omitted).
Thus, when following up on the initial reasons for a
traffic stop, the officer must employ “the least intrusive means
reasonably available to verify or dispel [his] suspicion in a
short period of time.” See Digiovanni, 650 F.3d at 507
(internal quotation marks omitted). To be clear, the law does
not require that the officer employ the least intrusive means
conceivable. See United States v. Sharpe,
470 U.S. 675, 686-87
(1985) (“A creative judge engaged in post hoc evaluation of
police conduct can almost always imagine some alternative means
by which the objectives of the police might have been
accomplished.”). If an officer acts unreasonably in attempting
to confirm his suspicions during a traffic stop, however, he
runs afoul of Terry’s second prong.
Relatedly, a legitimate traffic stop may “become unlawful
if it is prolonged beyond the time reasonably required” to
complete its initial objectives. See Illinois v. Caballes, 543
U.S. 405, 407 (2005). Put differently, an officer cannot
investigate “a matter outside the scope of the initial stop”
unless he receives the motorist’s consent or develops
reasonable, articulable suspicion of ongoing criminal activity.
See
Digiovanni, 650 F.3d at 507.
15
Reasonable suspicion is a “commonsense, nontechnical”
standard that relies on the judgment of experienced law
enforcement officers, “not legal technicians.” See Ornelas v.
United States, 517 U.S. 690, 695 (1996) (internal quotation
marks omitted). As we recently explained in United States v.
Williams, the articulated factors supporting reasonable
suspicion during a traffic stop “must in their totality serve to
eliminate a substantial portion of innocent travelers,” and also
demonstrate a connection to criminal activity. See
808 F.3d
238, 246 (4th Cir. 2015) (internal quotation marks omitted).
Finally, although an officer may extend a traffic stop when
he possesses reasonable suspicion, he cannot search the stopped
vehicle unless he obtains consent, secures a warrant, or
develops probable cause to believe the vehicle contains evidence
of criminal activity. See United States v. Baker, 719 F.3d 313,
319 (4th Cir. 2013). An officer’s detection of marijuana odor
is sufficient to establish such probable cause, see United
States v. Carter,
300 F.3d 415, 422 (4th Cir. 2002), as is a
trained drug dog’s alert on the vehicle, see United States v.
Kelly,
592 F.3d 586, 592 (4th Cir. 2010). With the foregoing
principles in mind, we turn to the issues presented in Palmer’s
appeal.
16
Barb.
1.
With respect to Terry’s first prong — whether Officer
Ring’s articulated bases for the traffic stop were legitimate —
Palmer asserts that Ring lacked any objectively reasonable
grounds for stopping the Nissan. That contention is meritless.
Ring was familiar with the limits on window tint under Virginia
law and, in his view, the Nissan’s windows were too dark.
Palmer points to nothing that indicates the district court
clearly erred in crediting Ring’s testimony on that issue. See
United States v. McGee, 736 F.3d 263, 271 (4th Cir. 2013)
(concluding that district court’s reliance on officer’s
testimony regarding inoperative brake light was not clearly
erroneous). As we have recognized, illegally tinted windows are
alone “sufficient to justify” a traffic stop. See
Green, 740
F.3d at 279 n.1. We thus reject Palmer’s contention that Ring
lacked any objectively reasonable basis for stopping the Nissan.
2.
Turning to the events that transpired after the Nissan had
been stopped, Palmer acknowledges that when an officer has
probable cause to believe a vehicle contains contraband, the
Fourth Amendment “permits police to search the vehicle without
more.” See Br. of Appellant 31 (internal quotation marks
omitted). While checking the Nissan’s inspection sticker,
17
Officer Ring smelled marijuana. At that point, he had probable
cause to believe the vehicle contained contraband, and was
therefore entitled to search it. See Carter, 300 F.3d at 422.
Thus, unless Palmer can demonstrate some constitutional
violation between the time the stop began and the point that
Ring smelled marijuana, the evidence cannot be suppressed. 6 In
that regard, Palmer asserts that Ring transgressed Terry’s
second prong by taking actions during the traffic stop that were
not reasonably related in scope to the initial bases for the
stop.
a.
According to Palmer, Officer Ring unreasonably expanded the
scope of the stop by beginning an unjustified drug
investigation. The government contends, however, that Ring’s
actions were supported by reasonable suspicion.
A motorist stopped by the police is obliged to endure
“certain negligibly burdensome precautions” that may not relate
directly to the reason for the traffic stop, such as checking
whether the driver has a criminal record or outstanding
warrants. See Rodriguez, 135 S. Ct. at 1616; see also Muehler
6
Rather than search immediately after smelling marijuana,
Officer Ring waited about ten minutes for the drug dog Boomer to
arrive. The dog’s alerts provided strong additional support for
the proposition that the Nissan contained contraband. See
Kelly, 592 F.3d at 592.
18
v. Mena, 544 U.S. 93, 101 (2005) (concluding that questioning
unrelated to basis for traffic stop was not unlawful because it
did not extend detention). Those routine checks reflect the
reality that traffic stops are “especially fraught with danger
to police officers,” and further the strong interest in allowing
an officer to complete his traffic mission safely. See Michigan
v. Long,
463 U.S. 1032, 1047 (1983). Indeed, in Terry itself,
the Supreme Court — describing “[t]he crux of th[e] case” —
emphasized the “immediate interest of the police officer in
taking steps to assure himself that the person with whom he is
dealing is not armed with a weapon that could unexpectedly and
fatally be used against him.”
See 392 U.S. at 23.
Palmer suggests that it was unreasonable for Officer Ring —
after learning of the “gang alert” indicating that Palmer was
associated with the Bounty Hunter Bloods — “to delve into [his]
prior criminal record,” because it had “absolutely nothing to do
with investigating a window tint or inspection sticker
violation.” See Br. of Appellant 18. To describe that
contention is to discard it. A police officer is entitled to
inquire into a motorist’s criminal record after initiating a
traffic stop, and we cannot fault Ring — faced with a suspected
member of a violent gang — for doing so here. See Green, 740
F.3d at 281 (observing that “concern for officer safety”
justified “criminal history check”). In short, Ring’s brief
19
investigation into Palmer’s criminal record fell squarely within
the range of actions permitted under Terry’s second prong.
Nor did Officer Ring’s detention of Palmer prior to
smelling marijuana unreasonably expand the scope or duration of
the traffic stop. We are satisfied that, after accessing
Palmer’s criminal record in LInX, Ring possessed a reasonable,
articulable suspicion that Palmer was engaged in criminal
activity. In other words, the information on which Ring relied
eliminated a substantial portion of innocent travelers and
logically demonstrated a connection to unlawful conduct. The
Opinion identified eight factors in that regard: Palmer was in
a high crime area where citizens were complaining about drug
dealing; Ring believed that the Nissan’s windows were illegally
tinted; Palmer was nervous; the Nissan emitted an “overwhelming”
scent of air freshener from multiple air fresheners; Palmer was
a suspected member of the Bounty Hunter Bloods; Palmer’s
driver’s license listed a P.O. box address, rather than a
residence; Palmer was driving a vehicle registered in another
person’s name; and Palmer had “a criminal record that included
four previous arrests for narcotics charges as well as a charge
of possession of a firearm by a convicted felon.” See Opinion
9.
Palmer insists that most of those factors “relate[] to
perfectly innocent behavior and are not indicative of criminal
20
activity.” See Br. of Appellant 19. He fails to appreciate,
however, that reasonable suspicion is based on the totality of
the circumstances, and may well “exist even if each fact
standing alone is susceptible to an innocent explanation.” See
United States v. McCoy, 513 F.3d 405, 413-14 (4th Cir. 2008)
(footnote omitted).
Resolving the reasonable-suspicion question turns on
whether the articulated factors, taken together, showed a
connection to ongoing criminal activity. Palmer maintains that
the various factors evince Officer Ring’s “attempt to take a
series of perfectly mundane, innocent, and easily explained
behaviors and circumstances and weave them into a web of
deception.” See Br. of Appellant 24 (internal quotation marks
omitted). The government counters that Ring described how those
factors were connected to suspected criminal conduct.
As we have recognized with respect to a reasonable-
suspicion inquiry, “it is entirely appropriate for courts to
credit the practical experience of officers who observe on a
daily basis what transpires on the street.” See Branch, 537
F.3d at 336-37 (internal quotation marks omitted). We do not,
however, credit that experience blindly. See
Williams, 808 F.3d
at 253. Instead, we expect police officers to articulate how
that experience applies to the facts at hand. See United States
v. Foster,
634 F.3d 243, 248 (4th Cir. 2011) (“[A]n officer and
21
the Government must do more than simply label a behavior as
‘suspicious’ to make it so.”).
Officer Ring knew that the Ipswich neighborhood was a high-
crime area and that the police had received complaints about
illegal drug activity there. See Branch, 537 F.3d at 338
(observing that “an area’s propensity toward criminal activity
is something that an officer may consider” in forming reasonable
suspicion (internal quotation marks omitted)). It is compelling
that, when Ring approached the darkly tinted Nissan, he smelled
an overwhelming odor from the air fresheners that he could see
in the vehicle, suggesting an effort to conceal the scent of
drugs. See United States v. Foreman,
369 F.3d 776, 785 (4th
Cir. 2004) (concluding that air fresheners on rearview mirror
supported reasonable suspicion because they are “commonly used
to mask the smell of narcotics”).
Significantly, Officer Ring learned, early in the traffic
stop, that Palmer was a suspected member of the Bounty Hunter
Bloods. Ring knew that the Bloods had threatened law
enforcement during his service as a police officer and that such
gangs are frequently involved in organized criminal activity
such as “narcotics distribution.” See J.A. 86. Ring also
ascertained that Palmer had at least four earlier arrests on
drug charges and was probably a convicted felon. Indeed, he had
been charged previously as a felon in possession of a firearm.
22
As we explained in United States v. Sprinkle, “an officer can
couple knowledge of prior criminal involvement with more
concrete factors in reaching a reasonable suspicion of current
criminal activity.” See 106 F.3d 613, 617 (4th Cir. 1997). At
minimum, such “concrete factors” in this situation included the
overwhelming odor from multiple air fresheners and Palmer’s
apparent gang membership.
Put succinctly, the factors identified by the Opinion —
viewed in their totality — eliminated a substantial portion of
innocent travelers and demonstrated a connection to possible
criminal activity. 7 We are thus satisfied that Ring’s actions
prior to examining the Nissan’s inspection sticker were entirely
permissible under Terry’s second prong, because Ring did not
unreasonably expand the scope of the traffic stop.
7 Some of the factors identified by the district court,
when viewed in isolation, provide somewhat weaker support for
reasonable suspicion. First, a driver’s nervousness is not a
particularly good indicator of criminal activity, because most
everyone is nervous when interacting with the police. See
Williams, 808 F.3d at 248. Second, the listing of a P.O. box as
an address on a driver’s license, as opposed to a residential
address, is not a strong indicator of suspicious conduct. See
id. at 250-51. Finally, simply driving a vehicle registered to
an absent third party is also not a strong factor, but could, in
the proper situation, indicate the possibility of a “stolen
vehicle or drug trafficking.” See United States v. Ludwig,
641
F.3d 1243, 1249 (10th Cir. 2011) (internal quotation marks
omitted).
23
b.
Palmer also maintains that Officer Ring conducted a
warrantless search of the Nissan without probable cause when he
stuck his head inside the car to examine its inspection sticker.
According to Palmer, Ring’s actions constituted “the most
intrusive means of confirming or dispelling the validity of the
sticker.” See Br. of Appellant 33. The government counters
that Ring did not conduct a search within the meaning of the
Fourth Amendment, and argues that Ring was simply seeking “a
better look” at “an item that a motorist is legally required to
display on [his] vehicle for ready inspection by law
enforcement.” See Br. of Appellee 38.
i.
Palmer frames his contention regarding Officer Ring’s
examination of the inspection sticker in terms of
“reasonableness.” Under the applicable principles, to contest
Ring’s entry into the Nissan on the ground that it was an
illegal search, Palmer must show that he had “a legitimate
expectation of privacy in the area searched.” See United v.
Castellanos, 716 F.3d 828, 832 (4th Cir. 2013) (relying on
Rawlings v. Kentucky,
448 U.S. 98, 104-05 (1980)). Palmer has
not asserted, much less shown, any legitimate expectation of
privacy that was unreasonably infringed. He therefore cannot
rely merely on Ring’s examination of the inspection sticker as a
24
basis for suppressing the cocaine and firearm evidence. See id.
at 834-35 (recognizing that defendant who fails to show
reasonable expectation of privacy cannot challenge warrantless
search of vehicle).
ii.
Although Palmer has failed to establish any expectation of
privacy, he also asserts that the district court clearly erred
in its findings regarding the inspection sticker’s appearance
and, consequently, that Officer Ring lacked a reasonable
suspicion that the sticker was fraudulent. Palmer also contends
that Ring failed to utilize the least intrusive means reasonably
available to investigate the sticker. We evaluate those
contentions under Terry’s second prong. See Guijon-Ortiz, 660
F.3d at 764.
When reviewing factual findings for clear error, “[w]e
particularly defer to a district court’s credibility
determinations, for it is the role of the district court to
observe witnesses and weigh their credibility during a pre-trial
motion to suppress.” See United States v. Abu Ali, 528 F.3d
210, 232 (4th Cir. 2008) (internal quotation marks omitted).
The Opinion credited Officer Ring’s testimony regarding the
appearance of the inspection sticker during the traffic stop,
explicitly relying on Ring’s observations that he “had seen
numerous fraudulent stickers” and that the Nissan’s inspection
25
sticker “looked like those fraudulent stickers he had seen in
the past.” See Opinion 11. The district court also found that
Ring could not see, from outside the Nissan, “the perforated
portion that sits in the middle of the sticker and is designed
to prevent sticker theft by detaching.” Id. Moreover, the
court itself “examined the sticker both in the video [of the
traffic stop] and in a photograph” that Palmer introduced into
evidence. See
id. at 12.
Based on Officer Ring’s testimony and the district court’s
examination of the evidence, the Opinion found that the
inspection sticker was lighter in color than normal and that
“the perforated middle portion [was] not visible from the car’s
outside.” See Opinion 12. Palmer characterizes the evidence
differently, but points to nothing that contradicts the court’s
findings. In such circumstances, we cannot say that the court
clearly erred. See McGee, 736 F.3d at 271. Because Ring had a
legitimate basis for believing that the inspection sticker was
fraudulent, we agree that the facts recited by the court,
“coupled with Officer Ring’s training and experience with
inspection stickers,” support the “reasonable suspicion Ring
required to investigate the sticker’s authenticity.” See
Opinion 12.
26
iii.
Finally, Palmer argues that, even if Officer Ring possessed
a reasonable suspicion that the inspection sticker was
fraudulent, his means of investigation were improper. Palmer
posits two alternatives in that regard: Ring could have “run
the number on the sticker through the State Police database”; or
he could have “asked for the inspection certificate.” See Br.
of Appellant 33. In assessing those alternatives, we must
decide whether the district court correctly concluded that Ring
employed “the least intrusive means reasonably available to
verify or dispel [his] suspicion in a short period of time.”
See Digiovanni, 650 F.3d at 507 (internal quotation marks
omitted).
The burden of demonstrating the appropriateness of Officer
Ring’s conduct is on the government. See Florida v. Royer, 460
U.S. 491, 500 (1983) (plurality opinion). We are mindful, of
course, that the “scope of the intrusion permitted will vary,”
depending on the specific facts and circumstances.
Id. Again,
we are bound by the findings of the district court unless they
are clearly erroneous. See Abu
Ali, 528 F.3d at 232. In
rejecting Palmer’s theories for less intrusive alternatives, the
Opinion explained that it was not clear that Officer Ring — a
city police officer — had access to a state police database of
vehicle registration information. The Opinion also observed
27
that there was no indication that the inspection certificate was
in the Nissan during the traffic stop.
We cannot doubt Officer Ring’s statement that he was not
familiar with any state database such as Palmer describes. Nor
are we persuaded that the presence or absence of the inspection
certificate has any significance. Ring was entitled to ask
Palmer to step out of the vehicle, see Pennsylvania v. Mimms,
434 U.S. 106, 111 (1977) (per curiam), and it does not give us
pause — in light of Palmer’s affiliation with a violent gang,
his prior criminal charges, and his apparent felony conviction —
that Ring would request that Palmer exit the Nissan rather than
have him reach for something out of sight in the passenger
compartment. Finally, neither of Palmer’s proposals would have
been more expeditious, because Ring — in examining the back of
the inspection sticker — was promptly in and out of the Nissan.
The government has therefore satisfied its burden, readily
showing that Ring’s means of investigating the inspection
sticker were appropriate and not unreasonably intrusive.
In these circumstances, we are convinced that no
constitutional violation occurred. See Sharpe, 470 U.S. at 687
(“The question is not simply whether some other alternative was
available, but whether the police acted unreasonably in failing
to recognize or to pursue it.”). As a result, the district
court correctly denied Palmer’s suppression motion.
28
IV.
Pursuant to the foregoing, the judgment of the district
court is affirmed.
AFFIRMED
29
WYNN, Circuit Judge, concurring:
I fully concur in the majority opinion. I write separately
to emphasize that while the Supreme Court omitted criminal
background checks from its list of “ordinary inquiries”
authorized incident to every traffic stop, Rodriguez v. United
States, 135 S. Ct. 1609, 1615 (2015), this Court in United
States v. Green, 740 F.3d 275 (4th Cir. 2014), held that a
traffic stop was reasonably prolonged in order to conduct a
background check because the driver’s “demeanor and behavior
throughout the traffic stop in conjunction with [an outstanding]
protective order [against the driver] raised concerns about
officer safety.”
Id. at 281.
In this case, the specific circumstances of the stop
indicate the officer had at least some legitimate concern for
his own safety. Thus, I agree with the majority opinion that
“we cannot fault Ring – faced with a suspected member of a
violent gang – for [inquiring into the motorist’s criminal
record] here.” Ante, at 19.
30
