United States v. Brian Bowman , 884 F.3d 200 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4848
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRIAN BOWMAN,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Asheville. Martin K. Reidinger, District Judge. (1:15-cr-00101-MR-DLH-2)
Argued: December 7, 2017 Decided: March 1, 2018
Before TRAXLER, KING, and HARRIS, Circuit Judges.
Vacated and remanded by published opinion. Judge Traxler wrote the opinion in which
Judge King and Judge Harris joined.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Ross Hall Richardson, Federal Public Defender, Interim,
FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF NORTH
CAROLINA, Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
TRAXLER, Circuit Judge:
Brian Bowman appeals the district court’s denial of his motion to suppress
evidence recovered from a dog sniff conducted after an already-completed traffic stop.
We conclude that the police officer had neither Bowman’s consent to extend the traffic
stop nor a reasonable, articulable suspicion of ongoing criminal activity to justify doing
so. Accordingly, the prolonged traffic stop abridged Bowman’s right under the Fourth
Amendment to be free of unreasonable seizures. We vacate Bowman’s conviction for
possession with intent to distribute methamphetamine and remand for such further
proceedings as may be appropriate.
I.
At the suppression hearing before the magistrate judge, the government submitted
a dashcam video recording of the entire traffic stop and presented the testimony of the
arresting officer, Trooper Andrew Waycaster of the North Carolina State Highway
Patrol’s Criminal Interdiction Unit. The evidence adduced at the hearing was as follows.
In the early morning hours of June 20, 2015, Waycaster was patrolling U.S. Route 25 in
Henderson County, North Carolina. He received a tip from the Drug Enforcement
Agency (DEA) that two individuals suspected of transporting methamphetamine from
Atlanta to the Asheville and Hendersonville areas were possibly driving “a red, older
model Lexus” in the area. J.A. 82. Additionally, the DEA provided the license plate
number for the vehicle. At about 3:40 a.m., Waycaster spotted a red 1998 Lexus
traveling north on U.S. Route 25 and followed in his patrol vehicle. Rather than stop the
vehicle based on the information provided by the DEA, Waycaster was “looking for [his]
2
own infractions . . . for [his own] reason to stop the vehicle.” J.A. 86. 1 According to
Waycaster, the red Lexus weaved over the fog line and accelerated up to a steady 10
miles per hour over the speed limit, leading Waycaster to believe that the driver might be
operating under the influence of alcohol or drugs.
Waycaster stopped the Lexus, approached from the passenger side of the vehicle
and asked both occupants to show their hands. Bowman was the driver, and Homero
Alvarez occupied the front passenger’s seat. Waycaster testified that Bowman appeared
to be nervous because his hands were shaking when he handed over his vehicle
registration and driver’s license. Waycaster indicated that Alvarez “was continually
staring straight ahead” rather than looking at him, behavior that Waycaster found
suspicious. J.A. 90. Waycaster further testified that he saw movement in Bowman’s and
Alvarez’s carotid arteries, leading him to conclude that both men had elevated heart rates
and were nervous.
Waycaster did not see any alcohol or firearms. However, Waycaster took note of
several items in Bowman’s car, including an energy drink in the front seat console, food
and food wrappers in the front seat, and a suitcase and loose items of clothing in the back
seat. According to Waycaster, the presence of these items suggested that Bowman and
Alvarez “could have been possibly traveling for a . . . long period of time, and in a hurry
to get from one location to another [without] taking time to stop and rest or have meals.”
J.A. 91.
1
The government agrees the DEA tip should not be considered in any way in our
legal analysis.
3
Waycaster told Bowman that “the reason for the traffic stop was the weaving and
speeding violations,” and he asked Bowman to exit his vehicle and go back to the patrol
car so that Waycaster could check his information. J.A. 93. Alvarez remained seated in
the Lexus. After stepping out of his vehicle, Bowman consented to a weapons frisk, and
Waycaster found none. Waycaster testified that during this time, he could see Alvarez
moving around in the front of the Lexus and looking back towards Waycaster and
Bowman—activity that Waycaster believed was an additional indicator of nervousness.
Waycaster then instructed Bowman to sit in the patrol vehicle while he ran a check
on Bowman’s driver’s license and vehicle registration. Bowman complied and sat in the
patrol car’s front passenger’s seat. While Waycaster processed Bowman’s driving
information, Bowman apologized for speeding and stated that he believed he had been
traveling within the speed limit. As for the weaving, Bowman told Waycaster that he had
purchased the Lexus during the previous week, and that he was having issues with the
front end of the vehicle. Bowman also indicated that he was tired.
Waycaster then asked Bowman where he and Alvarez had come from and where
they were going. At the hearing, Waycaster maintained he asked this question based not
on the DEA tip but rather based on “the time of morning, 3:40 in the morning, and his
increased nervousness.” J.A. 98. Bowman responded that he was “headed home” after
having “picked up Mr. Alvarez at [Alvarez’s] girlfriend’s house” 25 to 30 minutes
earlier, J.A. 97-98, and explained that Alvarez was a good friend who had given him a
ride in the past and that Bowman was returning the favor because “Alvarez’s vehicle
wasn’t legal,” J.A. 100. Bowman was unable to give Waycaster the girlfriend’s address
4
but offered that he had entered the location into the GPS in his Lexus. Bowman stated
that he lived in Black Mountain, North Carolina, but that he had been staying with his
girlfriend near Fletcher, North Carolina. He also indicated that he lived about twenty
minutes away from Alvarez.
Waycaster also asked Bowman what he did for a living. Bowman stated that he
was a welder and fabricator but that he was presently laid off from work. Waycaster
further asked Bowman if he had any prior speeding tickets, and Bowman responded that
he had one prior ticket while using a different vehicle that he had purchased using
Craigslist. He did not indicate when he had purchased the vehicle. Bowman added that
he “buy[s] cheap cars off of Craigslist.” J.A. 154. Waycaster testified that he found it
suspicious that Bowman “was in possession of one car and admitted he recently bought
another car off Craigslist” because “[i]t’s a known practice with narcotics traffickers to
either use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to
transport narcotics.” J.A. 101. Also, Waycaster was skeptical about Bowman’s ability to
purchase “multiple vehicles in a short period of time” while he was laid off. J.A. 154.
After speaking with Bowman, Waycaster did not believe he was driving under the
influence and issued him a warning for speeding and unsafe movement of the vehicle.
Waycaster then completed the traffic stop by returning Bowman’s driver’s license and
registration and shaking his hand.
As Bowman began to exit the patrol vehicle, Waycaster asked if he could speak
with Bowman further. Bowman consented and remained in the patrol car. Waycaster
asked additional questions “to clarify where he had been” that evening. J.A. 103. In
5
response to Waycaster’s prompting, Bowman reiterated that he had picked up Alvarez
from Alvarez’s girlfriend’s place, that he was not sure precisely where she lived, and that
the location of the pick up could be found in the Lexus’s GPS. When pressed by
Waycaster to tell him generally where she lived, Bowman indicated it was in North
Carolina and that he and Alvarez had been driving for 25-30 minutes when Waycaster
stopped them. Waycaster also asked for the girlfriend’s name, but Bowman did not know
it.
Waycaster then stated to Bowman, who was still seated in the patrol car, that he
“was going to go ask [Alvarez] questions if you don’t mind, okay?” Bowman responded,
“okay,” and remained in the vehicle. Then, as Waycaster was getting out of the patrol
car, he told Bowman, “just hang tight right there, okay,” to which Bowman said, “oh,
okay.” Waycaster testified that at this point, Bowman was “not free to get out of that
police car to leave” because Waycaster had developed from the traffic stop alone a
reasonable suspicion of criminal activity sufficient to detain Bowman further. J.A. 164.
Waycaster then walked to the passenger side of the Lexus and began posing
questions to Alvarez about where they had been that morning. Alvarez gave an
inconsistent story, telling Waycaster that they had been visiting friends in Georgia.
Waycaster then returned to his patrol car and, after Bowman repeated that he and Alvarez
had come from the home of Alvarez’s girlfriend, Waycaster asked if there was any
methamphetamine in the Lexus. Bowman responded in the negative. Waycaster asked
for permission to search the Lexus, but Bowman refused. Once again, Waycaster told
Bowman to “hang tight, okay” and then removed Alvarez from the Lexus, frisked him for
6
weapons, and placed him in the patrol car with Bowman. A K-9 officer was summoned
who then conducted a pass around the outside of the Lexus—and then on the interior of
the vehicle—and received an alert from the dog for the presence of illegal narcotics.
Subsequently, Waycaster and the K-9 handler conducted a search of the interior of the
Lexus and found a quantity of methamphetamine, digital scales and containers of
ammunition.
Bowman was charged in a single-count indictment with possession with intent to
distribute at least 50 grams of methamphetamine. Bowman filed a motion to suppress the
methamphetamine and other evidence recovered from the search of his car, arguing that
Waycaster unlawfully prolonged the completed traffic stop without consent or reasonable
suspicion. See Rodriguez v. United States, 135 S. Ct. 1609 (2015).
The magistrate judge recommended that the district court deny Bowman’s motion
to suppress. First, the magistrate judge explained that once Waycaster concluded the
traffic stop, he needed either Bowman’s consent or reasonable suspicion to detain him
further. The magistrate judge implicitly found that Bowman consented to the few
additional questions Waycaster asked after the completion of the traffic stop, when
“Trooper Waycaster plainly and unequivocally ask[ed] Defendant Bowman for
permission . . . to ask him a few follow up questions.” J.A. 275. However, the magistrate
judge found that after Bowman answered these additional questions, Waycaster detained
Bowman without his consent so that Waycaster could question Alvarez and search the
vehicle:
7
Defendant Bowman [was] not given an opportunity to decline Trooper
Waycaster’s request to extend the stop so that he [could] question Alvarez.
Trooper Waycaster direct[ed] Defendant Bowman to stay in the patrol car
while he questioned Alvarez. At no point [did] Trooper Waycaster tell
Defendant Bowman that he [was] free to leave or even imply that
Defendant Bowman could decline to remain in the patrol car while Trooper
Waycaster question[ed] Alvarez.
J.A. 275. Noting Waycaster’s testimony that “Bowman was not free to leave at that time
and that he could not have gotten out of the patrol car, terminate the encounter, [or] leave
the scene,” the magistrate judge concluded that “[u]nder the totality of the circumstances,
a reasonable person in Defendant Bowman’s position would not have felt free to leave
and terminate the traffic stop after being directed by Trooper Waycaster to remain in the
patrol car while the officer questioned the passenger.” J.A. 275-76.
Nonetheless, the magistrate judge concluded that the prolonged detention was
permissible because “Waycaster had a justified, reasonable suspicion that Defendant
Bowman was engaged in criminal activity.” J.A. 278. The magistrate judge identified
several factors he believed collectively provided Waycaster with a reasonable suspicion
that Bowman was engaged in criminal activity: Bowman’s and Alvarez’s nervousness
during the traffic stop; the presence of items suggesting that Bowman was not being
truthful about how long he had been traveling, including a suitcase, loose clothes, an
energy drink, food and food wrappers; Bowman’s inability to state where Alvarez’s
girlfriend lived; Bowman’s statement that “he had just purchased the [Lexus] despite
being recently laid off,” J.A. 277; and Bowman’s statement that “he bought cheap cars
off of Craigslist,” which Waycaster indicated was in accord with the “known practice of
drug traffickers . . . [of using] multiple, different vehicles to transport narcotics,” id.8
The magistrate judge reasoned that even though many “of the statements of
Defendant Bowman and the observations of Trooper Waycaster might on their own
appear consistent with innocent travel – the presence of an energy drink for example –
the totality of the circumstances in this case was sufficient to provide Trooper Waycaster
with a particularized and objective basis for suspecting legal wrongdoing.” J.A. 278
(internal quotation marks omitted). Thus, the magistrate judge concluded that
“Waycaster did not violate the Fourth Amendment by extending the traffic stop in order
to question Alvarez.” J.A. 278. 2 The magistrate judge recommended that the District
Court deny the motion to suppress. The district court adopted the recommendation of the
magistrate judge and denied the motion to suppress. Bowman then entered a conditional
guilty plea, preserving his right to challenge the denial of his motion to suppress. The
court imposed a sentence of 57 months’ imprisonment. Bowman filed this appeal.
II.
2
Additionally, the magistrate judge concluded that “Waycaster had a
particularized and objective basis” for “further extend[ing] the stop to conduct the dog
sniff.” J.A. 279. The court based this conclusion on “the previously discussed factors
that led to Trooper Waycaster extending the stop to question Alvarez,” in addition to the
“conflicting stories” provided by Alvarez and Bowman regarding the location from
which they were traveling. And, finally, the magistrate judge concluded that after the
dog had alerted on the vehicle, Waycaster had probable cause to search the vehicle.
Because we conclude that Waycaster did not have a reasonable suspicion to justify
extending the traffic stop in order to question Alvarez, Alvarez’s responses cannot be
considered. The question is whether there was reasonable suspicion to extend the stop in
order to question Alvarez. Indeed, as noted, Waycaster believed he had a reasonable
suspicion of criminal activity before questioning Alvarez. Thus, we cannot consider the
effect of Alvarez’s responses on the reasonable suspicion calculus.
9
We apply a de novo standard of review to a district court’s determination that an
officer had reasonable suspicion to prolong a traffic stop. United States v. Williams, 808
F.3d 238, 244 (4th Cir. 2015) (reviewing de novo court’s conclusion that reasonable
suspicion existed to justify extending traffic stop to conduct dog sniff); see Ornelas v.
United States, 517 U.S. 690, 699 (1996) (“[A]s a general matter determinations of
reasonable suspicion and probable cause should be reviewed de novo on appeal.”). In
doing so, however, we “review findings of historical fact only for clear error.” Ornelas,
517 U.S. at 699. When, as in this case, “a motion to suppress has been denied, we view
the evidence in the light most favorable to the government.” United States v. McBride,
676 F.3d 385, 391 (4th Cir. 2012). In reviewing the denial of a motion to suppress, this
court “is not limited to the district court’s reasoning, and we are entitled to . . . affirm on
any ground supported by the record.” United States v. Brown, 701 F.3d 120, 125 (4th
Cir. 2012) (internal quotation marks omitted).
III.
“Temporary detention of individuals during the stop of an automobile by the
police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’”
under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809 (1996). An
automobile stop, therefore, is subject to the reasonableness requirement of the Fourth
Amendment. See id. at 810 (“An automobile stop is . . . subject to the constitutional
imperative that it not be ‘unreasonable’ under the circumstances.”). An automobile stop
is “more akin to an investigative detention than a custodial arrest.” Williams, 808 F.3d at
245. Accordingly, in determining whether a traffic stop is reasonable, we apply the
10
standard articulated in Terry v. Ohio, 392 U.S. 1 (1968), wherein the court asks (1) if the
stop was “legitimate at its inception,” United States v. Hill, 852 F.3d 377, 381 (4th Cir.
2017), and (2) if “the officer’s actions during the seizure were reasonably related in scope
to the basis for the traffic stop,” Williams, 808 F.3d at 245 (internal quotation marks
omitted). Bowman does not challenge the reasonableness of the initial traffic stop in this
case. An officer’s initial “decision to stop an automobile is reasonable where the police
have probable cause to believe that a traffic violation has occurred.” Whren, 517 U.S. at
810. Bowman does not suggest that Waycaster did not have a legitimate basis for pulling
him over. However, a seizure that is “lawful at its inception can nevertheless violate the
Fourth Amendment because its manner of execution unreasonably infringes” on rights
protected by the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 124
(1984) (emphasis added). Therefore, the question in this appeal is whether Waycaster’s
actions during the stop were reasonable under the circumstances; specifically, did he
trench upon Bowman’s Fourth Amendment rights when he extended an otherwise-
completed traffic stop?
A lawful traffic stop “can become unlawful if it is prolonged beyond the time
reasonably required to complete [the] mission” of issuing a warning ticket. Illinois v.
Caballes, 543 U.S. 405, 407 (2005). The permissible duration of a traffic stop “is
determined by the seizure’s mission—to address the traffic violation that warranted the
stop,” meaning that it may “last no longer than is necessary to effectuate that purpose.”
Rodriguez, 135 S. Ct. at 1614 (alteration and internal quotation marks omitted).
“Authority for the seizure thus ends when tasks tied to the traffic infraction are—or
11
reasonably should have been—completed.” Id. Ordinary tasks incident to a traffic stop
include “inspecting a driver’s identification and license to operate a vehicle, verifying the
registration of a vehicle and existing insurance coverage, and determining whether the
driver is subject to outstanding warrants.” Hill, 852 F.3d at 382. A dog sniff around the
vehicle’s perimeter for the purpose of detecting narcotics “is not an ordinary incident of a
traffic stop.” Rodriguez, 135 S. Ct. at 1615.
The Fourth Amendment permits an officer to conduct an investigation unrelated to
the reasons for the traffic stop as long as it “[does] not lengthen the roadside detention.”
Rodriguez, 135 S. Ct. at 1614; see Hill, 852 F.3d at 382 (“While diligently pursuing the
purpose of a traffic stop, officers also may engage in other investigative techniques
unrelated to the underlying traffic infraction . . . only as long as that activity does not
prolong the roadside detention for the traffic infraction.”). For instance, police during the
course of a traffic stop may question a vehicle’s occupants on topics unrelated to the
traffic infraction, see Arizona v. Johnson, 555 U.S. 323, 333 (2009), or perform a dog
sniff around the outside of a vehicle, see Caballes, 543 U.S. at 409, as long as the police
do not “extend an otherwise-completed traffic stop in order to conduct” these unrelated
investigations, Williams, 808 F.3d at 245. But, as noted previously, a traffic stop
becomes unlawful when it is prolonged beyond the point at which “tasks tied to the
traffic infraction are—or reasonably should have been—completed,” Rodriguez, 135 S.
Ct. at 1614, even if only for a de minimis period of time, see id. at 1615-16. Therefore, in
order “to extend the detention of a motorist beyond the time necessary to accomplish a
12
traffic stop’s purpose, the authorities must either possess reasonable suspicion or receive
the driver’s consent.” Williams, 808 F.3d at 245-46 (internal quotation marks omitted).
A. Consensual Encounter or Non-consensual Seizure?
Because purely consensual encounters are not subject to Fourth Amendment
scrutiny, see Florida v. Bostick, 501 U.S. 429, 434 (1991), while all seizures, even brief
investigatory stops, are subject to the Fourth Amendment’s reasonableness requirement,
the first question before us is whether the continued interaction between Waycaster and
Bowman following the completion of the traffic stop was a consensual encounter or a
non-consensual seizure.
It is undisputed that the initial traffic stop was complete when Waycaster issued
Bowman a warning citation, returned his license and registration, and shook his hand. It
is likewise undisputed that Bowman subsequently agreed Waycaster could ask him
additional questions, which Waycaster did for approximately 40 seconds. Thus, Bowman
concedes that this 40-second colloquy in the patrol car was a consensual encounter.
However, he maintains that this brief consensual encounter became a seizure for Fourth
Amendment purposes at the moment that Waycaster directed him to “hang tight” in the
patrol car while Waycaster questioned Alvarez.
An individual is seized when an officer “by means of physical force or show of
authority, has in some way restrained [his] liberty.” Terry, 392 U.S. at 19 n.16. To
determine whether a seizure has occurred, we ask “whether, under the totality of the
circumstances surrounding the encounter, a reasonable person in the suspect’s position
‘would have felt free to decline the officers’ requests or otherwise terminate the
13
encounter.’” United States v. Sullivan, 138 F.3d 126, 132 (4th Cir. 1998) (quoting
Bostick, 501 U.S. at 438). Stated another way, we ask, in view of “all of the
circumstances surrounding the encounter, [whether] the police conduct would have
communicated to a reasonable person that he was not at liberty to ignore the police
presence and go about his business.” Bostick, 501 U.S. at 437 (internal quotation marks
omitted).
The district court concluded that, “[u]nder the totality of the circumstances, a
reasonable person in Defendant Bowman’s position would not have felt free to leave and
terminate the traffic stop after being directed by Trooper Waycaster to remain in the
patrol car while the officer questioned the passenger.” J.A. 276. The court explained:
After concluding the traffic stop and asking Defendant Bowman a
couple of follow up questions about where he picked up Alvarez, Trooper
Waycaster inform[ed] Defendant Bowman that he [was] going to question
Alvarez and direct[ed] Defendant Bowman to remain in the patrol car.
Unlike when Trooper Waycaster plainly and unequivocally ask[ed]
Defendant Bowman for permission to pat him down for weapons and to ask
him a few follow up questions, Defendant Bowman [was] not given an
opportunity to decline Trooper Waycaster’s request to extend the stop so
that he c[ould] question Alvarez. Trooper Waycaster direct[ed] Defendant
Bowman to stay in the patrol car while he questioned Alvarez. At no point
d[id] Trooper Waycaster tell Defendant Bowman that he [was] free to leave
or even imply that Defendant Bowman could decline to remain in the patrol
car while Trooper Waycaster question[ed] Alvarez. In fact, Trooper
Waycaster even testified that Defendant Bowman was not free to leave at
that time and that he could not have gotten out of the patrol car,
terminate[d] the encounter, and [left] the scene.
J.A. 275-76.
In its brief, the government argues Bowman consented to the prolonged traffic
stop because he responded with the word “okay” after Waycaster stated to Bowman, “I
14
am going to ask [Alvarez] a question if you don’t mind, ok?” Immediately thereafter, as
Waycaster began getting out of the patrol car, he told Bowman to “just hang tight right
there, ok?” The government emphasizes that when this exchange occurred, Waycaster
had already returned Bowman’s license and registration, used no physical force and made
no overt displays of authority. Thus, the government in its brief surmises that any
reasonable person would have felt free to terminate the encounter. 3
The “reasonable person standard is an objective one, thus its proper application is
a question of law” that we review de novo. United States v. Jones, 678 F.3d 293, 299
(4th Cir. 2012) (internal quotation marks omitted). That Waycaster technically phrased
his statement to Bowman in the form of a question is not determinative on the issue of
consent. As this court has observed, although “[a] request certainly is not an order,” a
3
At oral argument, the government conceded that a seizure had occurred at the
point that Trooper Waycaster directed Bowman to hang tight, but then characterized it as
a “consensual seizure.” This phrase seems oxymoronic, given that a “seizure” triggering
Fourth Amendment scrutiny occurs only when governmental actors have, “by means of
physical force or show of authority . . . in some way restrained the liberty of a citizen,”
Terry v. Ohio, 392 U.S. 1, 19 n.16, such that a reasonable person would not feel free to
terminate the encounter. Quite the opposite is true of a consensual encounter, wherein a
reasonable person would feel free to terminate questioning and depart. See United States
v. Sullivan, 138 F.3d 126, 132 (4th Cir. 1998). Nonetheless, it appears that this court has
previously referred to “consensual seizures” in certain specific, limited circumstances.
See United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005) (holding that even if
driver’s encounter with armed guards at CIA headquarters constituted a seizure, “that
seizure was consensual and thus reasonable” where the driver was seeking to enter the
secure CIA facility). To the extent that any non-semantic differences exist between a
“consensual seizure” and a consensual encounter where a suspect has given consent to a
trooper to prolong a traffic stop, we need not do a deep dive on these issues now. For our
purposes, the question is whether a consensual encounter followed the conclusion of
Waycaster’s additional questions to Bowman and Waycaster’s directive to Bowman that
he “hang tight.”
15
request from an officer “that conveys the requisite show of authority may be enough to
make a reasonable person feel that he would not be free to leave.” Id. at 303 (internal
quotation marks omitted). Here, Bowman was still seated in the patrol vehicle when
Waycaster told him to “just hang tight.” As the district court noted, Waycaster said this
as he was exiting the patrol car and Bowman “[was] not given an opportunity to decline
Trooper Waycaster’s request to extend the stop so that he c[ould] question Alvarez.” J.A.
275. In other words, Waycaster was not asking Bowman a question, as is evident from
the fact that he did not wait for Bowman to respond or consent. Indeed, Waycaster
testified at the hearing that at this point—before he questioned Alvarez—he had
developed sufficient reasonable suspicion to detain Bowman and that Bowman was, in
fact, “not free to get out of that police car to leave.” J.A. 164.
A law enforcement officer need not always “display an intimidating demeanor or
use coercive language” for a suspect to believe he cannot decline an officer’s requests or
otherwise terminate the encounter. United States v. Richardson, 385 F.3d 625, 630 (6th
Cir. 2004). For example, the Sixth Circuit in Richardson concluded that a reasonable
person in the defendant’s position would not have felt free to ignore an officer’s request
where the officer’s demeanor was not threatening and, after completing the traffic stop,
the officer simply said “Okay, just hang out right here for me, okay?” Id.; see also
United States v. Beauchamp, 659 F.3d 560, 569 (6th Cir. 2011) (“[J]ust as when an
officer follows someone and stops him to ‘ask’ for identification, or to ‘ask’ him to exit
his vehicle,” a suspect’s encounter with an officer “does not lose its coercive character
simply because [the officer] . . . ‘asked’ for [the suspect’s] compliance as opposed to
16
‘ordering’ it. Such a distinction is purely semantic.”). Similarly, under these
circumstances in this case, a reasonable person would have understood that he was no
longer free to terminate the exchange—just as Trooper Waycaster himself understood it.
As the district court pointed out, Waycaster was not asking a question when he instructed
Bowman to “just hang tight right there, ok?”—Bowman was seated inside the patrol car
and Waycaster made the statement as he was exiting the vehicle, suggesting that he was
neither expecting nor interested in a reply from Bowman. In sum, we conclude that
when Waycaster directed Bowman to remain in the patrol car after asking the additional
questions, the encounter was no longer a consensual one but instead constituted a non-
consensual seizure.
B. Reasonable Suspicion
1.
Having concluded that Bowman did not consent to Waycaster’s prolonging the
vehicle stop after completing all tasks related to the traffic infraction and asking Bowman
a few additional questions, we now turn to the question of whether the prolonged seizure
was justified by reasonable suspicion. See United States v. Palmer, 820 F.3d 640, 649-50
(4th Cir. 2016) (“[A]n 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.”).
Although “[a]rticulating precisely what ‘reasonable suspicion’ . . . mean[s] is not
possible,” Ornelas, 517 U.S. at 695, “the precedents of the Supreme Court and this
circuit suggest several principles that should animate any judicial evaluation of an
17
investigatory detention pursuant to Terry.” United States v. Branch, 537 F.3d 328, 336
(4th Cir. 2008). To show the existence of reasonable suspicion, “a police officer must
offer ‘specific and articulable facts’ that demonstrate at least ‘a minimal level of
objective justification’ for the belief that criminal activity is afoot.” Id. at 337 (quoting
Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). “Reasonable suspicion is a
commonsense, nontechnical standard,” Palmer, 820 F.3d at 650 (internal quotation marks
omitted), “that deal[s] with the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act,” Ornelas, 517 U.S. at 695(internal quotation marks omitted). In reviewing police action, courts must look at
whether the evidence as a whole establishes reasonable suspicion rather than whether
each fact has been individually refuted, remaining mindful of “the practical experience of
officers who observe on a daily basis what transpires on the street.” Branch, 537 F.3d at336–37 (internal quotation marks omitted). The reasonable suspicion standard is less
demanding than the probable cause standard or even the preponderance of evidence
standard. See Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
Under these same principles, however, “the relevant facts articulated by the
officers and found by the trial court, after an appropriate hearing, must ‘in their totality
serve to eliminate a substantial portion of innocent travelers.’” Williams, 808 F.3d at 246
(quoting United States v. McCoy, 513 F.3d 405, 413 (4th Cir. 2008)). It is not necessary
that every fact articulated by the officer “on its own eliminate every innocent traveler,”
McCoy, 513 F.3d at 413, but “the totality of the circumstances of each case” must
18
demonstrate that the “detaining officer has a particularized and objective basis for
suspecting legal wrongdoing,” Williams, 808 F.3d at 246.
2.
The district court concluded that several factors articulated by Waycaster, taken
together, established a “particularized and objective basis for suspecting . . . that
Defendant Bowman was engaged in criminal activity,” and provided the justification
required to “extend[] the traffic stop in order to question Alvarez” about where he and
Bowman had been that evening. J.A. 278 (internal quotation marks omitted). Those
factors included the following: (a) Bowman’s and Alvarez’s apparent nervousness; (b)
the presence of a suitcase, clothes, food and an energy drink inside of the Lexus; (c)
Bowman’s inability to supply Waycaster with the name and address of Alvarez’s
girlfriend; and (d) Bowman’s statements that he had been laid off recently and that he had
recently purchased the Lexus via Craigslist.
Perhaps recognizing that when viewed individually, each of the foregoing factors
was hardly suspicious, the government suggests that an analysis of reasonable suspicion
is “not amenable” to consideration of each factor in isolation. Brief of Appellee at 28. It
is true “that our inquiry must account for the ‘totality of the circumstances,’ rather than
employ a ‘divide-and-conquer analysis.’” Williams, 808 F.3d at 247 (quoting United
States v. Arvizu, 534 U.S. 266, 274 (2002)). But in considering whether the factors
articulated by a police officer amount to reasonable suspicion, this court “will separately
address each of these factors before evaluating them together with the other
circumstances of the traffic stop.” United States v. Powell, 666 F.3d 180, 187–88 (4th
19
Cir. 2011); see Williams, 808 F.3d at 247-53 (considering each factor alone, at length,
before considering the factors together with the totality of circumstances).
a. Nervousness
According to Waycaster, both Bowman and Alvarez appeared to be nervous.
Waycaster based this conclusion on several observations. Waycaster noticed that
Bowman’s hands were shaking as he handed over his vehicle registration and driver’s
license after the initial stop; that when Waycaster initially approached the car, Alvarez
stared straight ahead instead of looking him in the eye; that in both men “the carotid
artery was beating very hard and rapidly,” J.A. 140, signaling an increased heart rate and
nervousness; and that Bowman “couldn’t sit still” in the patrol vehicle while Waycaster
was processing his license and registration, J.A. 156.
As this court has recognized on multiple occasions, “a driver’s nervousness is not
a particularly good indicator of criminal activity, because most everyone is nervous when
interacting with the police.” Palmer, 820 F.3d at 652-53 n.7. Although “nervous,
evasive behavior” is relevant to the determination of reasonable suspicion, Wardlow, 528
U.S. at 124 (emphasis added) (holding officers had reasonable suspicion to stop suspect
who fled upon seeing the police), mere nervousness “is of limited value to reasonable
suspicion analyses,” United States v. Massenburg, 654 F.3d 480, 490 (4th Cir. 2011)
(internal quotation marks omitted). As this court explained in Massenburg,
[i]t is common for most people to exhibit signs of nervousness when
confronted by a law enforcement officer whether or not the person is
currently engaged in criminal activity. Thus, absent signs of nervousness
beyond the norm, we will discount the detaining officer’s reliance on the
detainee’s nervousness as a basis for reasonable suspicion.
20
Id. (alteration omitted) (quoting United States v. Salzano, 158 F.3d 1107, 1113 (10th Cir.
1998)); see Richardson, 385 F.3d at 630 (explaining nervousness “is an unreliable
indicator, especially in the context of a traffic stop”).
With respect to Waycaster’s specific observations regarding nervousness, none
suggest that Bowman or Alvarez exhibited signs of nervousness above the norm. As for
Waycaster’s testimony that Bowman’s hands were trembling when he handed over his
license and registration, the government, in its response to Bowman’s motion to suppress,
conceded that Bowman’s nervousness subsided and he appeared and sounded calm for
the remainder of the traffic stop. Cf. United States v. Digiovanni, 650 F.3d 498, 512 (4th
Cir. 2011) (“[T]he district court understandably discounted” the suspect’s trembling
hands “because, as the video reveals, Digiovanni appeared calm and cooperative
throughout the encounter.”), abrogated in part on other grounds by Rodriguez v. United
States, 135 S. Ct. 1609 (2015); United States v. Mason, 628 F.3d 123, 129 (4th Cir. 2010)
(finding support for reasonable suspicion based on testimony that defendant “was
sweating and unusually nervous when interacting with [law enforcement], and
[defendant’s] nervousness did not subside, as occurs normally, but became more
pronounced as the stop continued”). This concession is supported by the dashcam video
of the traffic stop.
Waycaster also testified that he was able to see the carotid artery on both men
pulsing, which Waycaster interpreted as a show of anxiety. Waycaster acknowledged he
had not received any medical training other than basic First Aid and admitted that there
were numerous other explanations for a pulsing carotid artery, such as a medical
21
condition, but indicated the significance of the carotid artery “is pretty common visual
knowledge.” J.A. 142. Waycaster also admitted that the energy drink he noticed in the
car—and considered suspicious—could have caused an elevated heart rate or shaky
hands since energy drinks typically contain large amounts of caffeine. In the past, this
court has determined that “heavy breathing, heavy sweating, and pulsating of the carotid
artery” supported a finding of reasonable suspicion. United States v. Foreman, 369 F.3d
776, 784 (4th Cir. 2004). In Foreman, the officer testified he noticed the suspect’s
“carotid artery on his neck throbbing more noticeably than the thousands of people that
[the officer] had stopped in the past.” Id. at 778 (emphasis added; internal quotation
marks omitted). By contrast, Waycaster testified that he had seen similar “pulsing other
times within the last year.” J.A. 142. Waycaster did not explain how his observation of
the carotid arteries in this case demonstrated nervousness beyond the norm, see
Massenburg, 654 F.3d at 490, particularly in light of how calm Bowman appeared and
sounded in the video recording of the traffic stop.
Waycaster also found that Alvarez’s failure to make eye contact with him after he
first pulled over the Lexus was a sign of nervousness. There is nothing intrinsically
suspicious or nefarious about the occupant of a vehicle not making eye contact with an
officer during a traffic stop. “Given the complex reality of citizen-police relationships . .
. , a young man’s keeping his eyes down during a police encounter seems just as likely to
be a show of respect and an attempt to avoid confrontation.” Massenburg, 654 F.3d at
489. In fact, the government in other cases has argued “just the reverse: that it is
suspicious when an individual looks or stares back at officers.” Id. (alteration and
22
internal quotation marks omitted). Waycaster did not explain why this behavior was
suggestive of criminal misbehavior other than to label it “suspicious.” This observation,
therefore, is not particularly probative of a suspect’s nervousness. See Williams, 808
F.3d at 246 (“To support a finding of reasonable suspicion, we require the detaining
officer to . . . articulate why a particular behavior is suspicious . . . .” (internal quotation
marks omitted)).
Finally, as additional proof of Bowman’s nervousness, Waycaster testified that
Bowman was unable to remain still while he sat in the patrol car and waited for
Waycaster to finish checking his license and registration. Although the interaction
between Waycaster and Bowman once they entered the patrol car could be heard on the
video recording, Bowman’s movements in the patrol car were not captured by the
forward-facing video recorder. Waycaster did not describe at the hearing how Bowman
was moving or explain why his movement was suspicious, and he did not make any
comments on the video recording to indicate he thought Bowman was moving around in
an unusual or suspicious manner. Like the others, this factor alone does not support a
finding of reasonable suspicion.
b. Clothes, Food and an Energy Drink in the Lexus
Waycaster stated that several items in the car caught his attention: an energy
drink, food and food wrappers, a suitcase and some loose clothing. As the government
concedes in its brief, the presence of these items in a vehicle, without more, is utterly
unremarkable. “[T]he mere presence of fast-food wrappers in [a suspect’s vehicle] is
entirely consistent with innocent travel such that, in the absence of contradictory
23
information, it cannot reasonably be said to give rise to suspicion of criminal activity.”
United States v. Beck, 140 F.3d 1129, 1138 (8th Cir. 1998). Waycaster suggested these
items indicated that Bowman and Alvarez “could have been possibly traveling for a
longer period of time” than indicated by Bowman, J.A. 91, who told Waycaster that he
was on his way home after having picked up Alvarez about 30 minutes earlier. Of
course, Waycaster also stated that the items could simply be indicative of a messy person
and nothing more. Likewise, the presence of the suitcase and clothing could have been
satisfactorily explained by Bowman’s statement to Waycaster that although he lived in
Black Mountain, Bowman had been staying at his girlfriend’s house in Fletcher, which
was a 20-minute drive from Black Mountain.
Even if the presence of these items somehow suggested that Bowman had not been
truthful about the amount of time he and Alvarez had been traveling, the government
failed to connect it to any wrongdoing in this case. Although “false statements can be
considered in establishing reasonable suspicion,” “a false statement, without more, will
typically be insufficient.” Powell, 666 F.3d at 188–89. The government “neither
apprised [us] of what, if any, significance such a falsehood normally has in the illicit drug
trade, nor what inferences” Waycaster drew from his belief that Bowman had not been
truthful about how long he had been traveling. United States v. Wilson, 953 F.2d 116,
125 (4th Cir. 1991).
c. Bowman’s uncertainty about the address of Alvarez’s girlfriend
The district court concluded that Bowman’s inability to recall where Alvarez’s
girlfriend lived even though he claimed to have picked Alvarez up from there 30 minutes
24
earlier “added to Trooper Waycaster’s suspicion.” J.A. 277. However, as is clear from
the video recording of the traffic stop, Bowman told Waycaster several times that the
address had been entered into his car’s on-board GPS as he was unfamiliar with the area.
Over the course of the traffic stop, Waycaster asked Bowman a number of times to
explain where he had picked up Alvarez, and Bowman gave the same response—he was
uncertain but the address could be found in his GPS on the screen in his car. Despite his
suspicions, Waycaster never attempted to examine the GPS to verify that an address had
been entered. Once again, the government fails to explain why Bowman’s responses in
this regard caused him to be suspicious that Bowman was mixed up in criminal drug
activity, rather than having simply picked up a friend in the dark, and in an area with
which he was unfamiliar. Under those circumstances, it would be perfectly consistent
with innocent travel for a person to rely on a GPS system to navigate and still not know
precisely where he had been. 4
d. Bowman’s vehicle purchases
Finally, while Bowman was seated in the patrol car waiting for Waycaster to
complete the checks associated with the traffic stop, Bowman implied that the weaving
observed by Waycaster was a result of problems Bowman was having with the front end
of the Lexus, which Bowman volunteered he had recently purchased. In response to
questions from Waycaster, Bowman stated that he was a welder and fabricator but that he
4
The government likewise points out that Bowman did not know the name of
Alvarez’s girlfriend. Again, we are left to wonder why this fact, coupled with his
inability to recall a location from memory, suggests criminal wrongdoing to Waycaster.
25
was presently laid off from work, and he identified the company. Bowman explained that
he had one prior speeding ticket while using a different vehicle which he had purchased
through Craigslist. Bowman indicated the Lexus was a 1998 model and stated that he
bought cheap cars from Craigslist. Waycaster found two aspects of this information
suggestive of Bowman’s involvement in criminal activity. First, the fact that Bowman
had been laid off but was still able to purchase “multiple vehicles in a short period of
time,” J.A. 154, struck Waycaster as suspicious. Second, Waycaster thought it highly
suspicious that Bowman “was in possession of one car and admitted he recently bought
another car off of Craigslist” because “[i]t’s a known practice with narcotics traffickers to
either use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to
transport narcotics.” J.A. 101.
(1)
Regarding Bowman’s purported purchase of “multiple vehicles in a short period of
time,” J.A. 154, Waycaster, first and foremost, seems to have made some unsubstantiated
assumptions. Bowman only stated that he purchased the 1998 Lexus recently and that he
buys cheap cars off of Craigslist. He did not state that he had recently purchased the
other car he was driving when he received the speeding ticket. In fact, Waycaster did not
ask and therefore did not know whether Waycaster had purchased the Lexus before or
after the layoff, or how much Bowman paid for his then 18-year-old Lexus. Waycaster
simply reasoned that, because Bowman was laid off, he had no means of purchasing a
used car through Craigslist. At the hearing, Waycaster wondered, “[i]f he’s currently laid
off, where is he getting the money? Because . . . I work every day and I don’t have the
26
money to buy multiple vehicles in a short period of time.” J.A. 154. Trooper Waycaster
was assuming he and Bowman were in identical financial situations, apparently unable to
conceive of numerous possible explanations—maybe Bowman has saved enough money
while he was working to purchase an 18-year-old car, or maybe he had a family member
provide him the funds. The Tenth Circuit rejected a similar argument in United States v.
Wood, 106 F.3d 942 (10th Cir. 1997), involving the traffic stop of an unemployed
painter. The court disagreed that reasonable suspicion was supported by the district
court’s underlying assumption that it was “unlikely or implausible that an unemployed
painter in Kansas could afford to take a two-week vacation in California.” Id. at 946.
The court explained that “temporary unemployment does not mean that vacations are
financially unattainable. [Defendant] may have saved money for the trip; he may have
been the donee of a wealthy relative or acquaintance; he might have won the lottery or
not yet exceeded the credit line on his VISA card.” Id. at 947. So too here. Without
more, this factor is totally innocuous, and we accord very little weight to it.
(2)
Waycaster indicated that “[i]t’s a known practice [of] narcotics traffickers to either
use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to transport
narcotics.” J.A. 101. The district court adopted this factor as supporting reasonable
suspicion that Bowman was engaged in criminal activity. Undoubtedly, some drug
traffickers, in order to further their illicit activity and make it harder to detect, use
multiple vehicles which they may buy cheap through Craigslist. Surely, however, a far
greater number of innocent travelers also use multiple vehicles, some of which they
27
purchase from Craigslist sellers. This factor, standing alone, is likewise entitled to little
weight. See Williams, 808 F.3d at 247 (accepting “as a general proposition, [that] some
drug traffickers use rental cars” but holding that defendants’ use of a rental car “is of
minimal value to the reasonable-suspicion evaluation” because “the overwhelming
majority of rental car drivers on our nation’s highways are innocent travelers with
entirely legitimate purposes”).
3. Totality of the Circumstances
Standing alone, none of the foregoing factors provides a basis for a reasonable,
articulable suspicion that Bowman was engaged in criminal activity. Nonetheless, we
still must consider all of the factors together, given that “reasonable suspicion may exist
even if each fact standing alone is susceptible to an innocent explanation.” McCoy, 513
F.3d at 413-14. This court “must look at the cumulative information available to the
officer,” rather than hold a “stop unjustified based merely on a piecemeal refutation of
each individual fact and inference.” Branch, 537 F.3d at 337 (internal quotation marks
omitted). In this case, even combining all of the factors identified by the government and
the court below and viewing them in light of all the other facts and circumstances of this
case, we perceive no basis for a reasonable suspicion that Bowman was involved in
criminal activity. “Under the applicable standard, the facts, in their totality, should
eliminate a substantial portion of innocent travelers.” Williams, 808 F.3d at 251 (internal
quotation marks omitted). The factors present in this case do not. The fact that Bowman
was driving a messy, 18-year-old car he purchased on Craigslist, even when viewed with
all the other circumstances, is not indicative of criminal activity. Waycaster’s law
28
enforcement experience that drug traffickers “use multiple, different vehicles to transport
narcotics,” J.A. 277, also does not aid the government, as nothing in the record supports
the notion that Bowman was using multiple cars simultaneously. The fact that Bowman
appeared to be nervous initially adds little, given that law-abiding drivers commonly
experience nervousness during a traffic stop. And, even combined with all of the other
circumstances, Bowman’s alleged evasiveness about the where he had picked up Alvarez
likewise would not tip the balance in favor of reasonable suspicion given that Bowman
told Waycaster he was not familiar with the area but that Waycaster could see the
location by looking at Bowman’s GPS unit.
Finally, even if the totality of the circumstances here could have been viewed as
vaguely suspicious, the government has failed to articulate why Bowman’s “behavior is
likely to be indicative of some more sinister activity than may appear at first glance.”
Williams, 808 F.3d at 251 (internal quotation marks omitted). Although the nature of the
totality-of-the-circumstances test makes it possible for individually innocuous factors to
add up to reasonable suspicion, it is “impossible for a combination of wholly innocent
factors to combine into a suspicious conglomeration unless there are concrete reasons for
such an interpretation.” The government has failed to identify any such concrete reasons.
IV.
For the foregoing reasons, we hold that Trooper Waycaster lacked reasonable
suspicion to extend an otherwise-completed traffic stop, leading ultimately to the
execution of a dog-sniff and the recovery of methamphetamine, digital scales and
ammunition. We conclude that Bowman’s motion to suppress should have been granted.
29
Accordingly, we vacate Bowman’s conviction and remand the case for further
proceedings as are consistent with this opinion.
VACATED AND REMANDED
30