United States v. Shane Cohen , 593 F. App'x 196 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4365
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHANE TRENIER COHEN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:11-cr-00164-FL-1)
Argued: September 19, 2014 Decided: December 5, 2014
Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion. Judge Davis wrote a
separate concurring opinion.
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Joshua L.
Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Shane Trenier Cohen pled guilty to possession with intent
to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1),
and to possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1),
reserving his right to appeal the district court’s denial of his
motion to suppress. We affirm.
I.
A.
On August 2, 2011, Detectives David Beckwith and Lacy Ray
Ward of the Warsaw, North Carolina, police department observed
Cohen, who was driving a Ford Explorer, make a right turn off of
Highway 117 and into an area known for drug-trafficking and
other criminal activity. When the officers turned in behind
Cohen, Cohen made a left turn, another left turn, and pulled
into a gas station. The officers found Cohen’s route to be odd
because Cohen could have arrived at the gas station much quicker
if he had stayed on Highway 117. Cohen entered the gas station,
where he stayed for less than a minute. The officers continued
to follow him as he drove away. When the officers observed
Cohen come within ten feet of a small car ahead of him, they
stopped him for following too closely.
Detective Beckwith walked up to the driver’s side of the
Explorer and introduced himself to Cohen. He explained the
3
reason for the traffic stop and obtained Cohen’s driver’s
license. Based upon his experience as a police officer,
Detective Beckwith immediately noticed that Cohen was acting
unusually nervous for a simple traffic stop. He “was breathing
rapidly, not making good eye contact, frequently taking sips of
his drink, was excessively talkative, strangely agreeable and
polite, and hesitated when answering if he had ever been
arrested.” J.A. 99. Detective Ward, who had approached the
passenger side of the Explorer and conversed briefly with Cohen,
likewise perceived him to be unusually nervous.
After briefly returning to the patrol car and verifying
that Cohen’s driver’s license was active, Detective Beckwith
asked Cohen to step out of the vehicle. Cohen complied, but his
demeanor noticeably changed “from being nervous to extremely
nervous to almost disagreeable.” J.A. 29. Cohen began to ask
questions such as, “Why [are] you doing this,” and “Why [are]
you stopping me?” J.A. 187 (internal quotation marks omitted).
When Detective Beckwith asked Cohen if he had a weapon on him,
Cohen “raised his hands and said ‘No.’” J.A. 29. Detective
Beckwith then patted Cohen’s pockets and felt two “blunt cigar
wrap[s]” in his left pants pocket. J.A. 101. 1 Detective
1
Although Detective Beckwith at times referred to the
evidence as “blunt cigars,” it is clear from the record that the
4
Beckwith testified that such blunt wraps are typically used to
roll marijuana, and he had never encountered anyone who carried
blunt wraps along with loose tobacco for the purpose of rolling
non-marijuana cigars. Detective Beckwith asked Cohen if he
“smoked weed,” which Cohen denied. J.A. 29. Cohen told
Detective Beckwith that he had the blunt wraps because he had
started smoking cigars, but he also referred to the papers as
blunt wraps. During the traffic stop, Cohen admitted to
Detective Beckwith that he had been previously arrested and
convicted for possession of marijuana.
After the pat-down search, Detective Beckwith escorted
Cohen to the front passenger seat of his patrol car. Detective
Beckwith informed Cohen that he was only going to write him a
warning citation and that Cohen would not have to go to court or
pay a fine. According to Detective Beckwith, “[n]ormally on
traffic stops, normal people when they realize they are not
going to get cited or it is not going to cost them any money to
go to court, I notice that their nervousness usually goes down.”
J.A. 29-30. Cohen’s nervousness, however, escalated. 2 While he
evidence removed from Cohen’s pocket were blunt wraps that
contained no tobacco or marijuana. J.A. 29, 158.
2
In the initial report, Detective Beckwith stated that he
told Cohen he “would not be issuing him a state citation for the
violation” before he returned to the patrol car to verify
Cohen’s license. J.A. 158. Detective Beckwith testified at the
5
was preparing the warning citation, Detective Beckwith
additionally attempted to engage Cohen in small talk, inquiring
about such things as where Cohen went to school and whether he
played ball. Again, Cohen’s “nervousness seemed to go up
instead of down.” J.A. 30. “He continued breathing rapidly,
and was fidgeting with his cell phone, wiping his hands on his
legs, wrenching his hands, and continuously swallowing.” J.A.
99. This “continued increased nervousness through casual
conversation after learning that he was only receiving a warning
was atypical in Detective Beckwith’s experience.” J.A. 100.
After completing the warning citation, Detective Beckwith
handed it to Cohen and told him to “‘[h]ave a nice day’ as he
stepped out of the [patrol] vehicle.” J.A. 30. Detective
Beckwith then asked Cohen if there was anything illegal in
Cohen’s vehicle. Cohen said that there was not and denied
Detective Beckwith’s request to search the vehicle.
At that point, Detective Beckwith informed Cohen that a K-9
unit would be brought to the scene to sniff the exterior of the
vehicle. Approximately two minutes later, dispatch advised the
suppression hearing that he told Cohen that he “was just going
to write him a warning citation for the violation” when he had
Cohen in the patrol car. J.A. 29. Cohen may well have been
reassured on both occasions, but it does not matter for our
purposes because it is clear that Detective Beckwith’s
reassurances during the traffic stop never resulted in the
expected diminishment of Cohen’s nervousness.
6
officers that Cohen had an outstanding arrest warrant.
Detective Ward also remembered that she had been present as an
undercover officer during a purchase of crack cocaine from Cohen
six years before. Cohen was placed in custody and put back into
the patrol car. 3
Minutes later, the K-9 unit arrived and the dog alerted to
the right passenger-side door of the vehicle. In the ensuing
search, the officers found approximately a half-pound to a pound
bag of marijuana, a set of digital scales, and a stolen .380
caliber handgun. The dashboard camera in the patrol car
captured Cohen making several incriminating statements on his
cellular phone. And when the contents of Cohen’s cellular phone
were later downloaded, the officers discovered several
incriminating text messages pertaining to drug deals.
B.
On December 13, 2011, the grand jury returned an indictment
charging Cohen with possession with the intent to distribute a
3
According to Detective Ward’s testimony, the police
consult two databases when they run a driver’s license check.
The National Crime Information Center (“NCIC”) database is
consulted automatically to determine whether an individual is
wanted or a car is stolen, and its results come in quickly. The
NCAware database takes anywhere from one to five minutes to
return results. NCIC did not return the warrant information,
but NCAware did. However, the warrant was not ultimately served
because it had no photograph and a different date of birth than
the one indicated on Cohen’s license.
7
quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1)
(Count 1); possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count
2); and possession of a firearm after having been convicted of a
crime punishable by imprisonment for a term exceeding one year,
in violation of 18 U.S.C. §§ 922(g)(1) and 924 (Count 3).
Cohen filed a motion to suppress the evidence found in the
vehicle search, his incriminating statements, and the
incriminating text messages from his cell phone. He argued that
the officers lacked reasonable suspicion of criminal activity
sufficient to detain him beyond the scope of the valid traffic
stop. Detectives Beckwith and Ward testified at the suppression
hearing. Cohen did not testify. The magistrate judge
recommended that the motion be granted. The district court
denied the motion. Cohen thereafter pled guilty to the first
two counts of the indictment, preserving his right to appeal the
suppression ruling. He was sentenced to seven months for the
marijuana conviction, and to a consecutive five-year term for
the firearm offense. This appeal followed.
II.
A.
When reviewing the district court’s denial of a motion to
suppress, we review its “factual findings for clear error and
its legal conclusions de novo.” United States v. Green, 740
8
F.3d 275, 277 (4th Cir. 2014). “We construe the evidence in the
light most favorable to the government, as the prevailing party
below.” Id.
The Fourth Amendment guarantees “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const. amend.
IV. A vehicle stop by the police is a seizure within the
meaning of the Fourth Amendment. See Whren v. United States,
517 U.S. 806, 809-10 (1996). “[T]he decision to stop an
automobile is reasonable where the police have probable cause to
believe that a traffic violation has occurred.” Id. at 810.
“Any ulterior motive a police officer may have for making the
traffic stop is irrelevant.” United States v. Digiovanni, 650
F.3d 498, 506 (4th Cir. 2011).
“A lawful traffic stop ‘begins when a vehicle is pulled
over for investigation of a traffic violation’ and ends ‘when
the police have no further need to control the scene, and inform
the driver and passengers they are free to leave.’” Green, 740
F.3d at 279 (quoting Arizona v. Johnson, 555 U.S. 323, 333
(2009)). “[O]nce the driver has demonstrated that he is
entitled to operate his vehicle, and the police officer has
issued the requisite warning or ticket, the driver must
[ordinarily] be allowed to proceed on his way.” United States
v. Branch, 537 F.3d 328, 336 (4th Cir. 2008) (internal quotation
9
marks omitted). The police officer, however, may detain a
driver beyond the scope of the lawful traffic stop if the
officer “possess[es] a justification for doing so other than the
initial traffic violation that prompted the stop in the first
place.” Id. at 336. Such “a prolonged automobile stop requires
either the driver’s consent or a ‘reasonable suspicion’ that
illegal activity is afoot.” Id. Such “[r]easonable suspicion
is demonstrated when an officer points to specific and
articulable facts which, taken together with rational inferences
from those facts, evince more than an inchoate and
unparticularized suspicion or hunch of criminal activity.”
United States v. Mason, 628 F.3d 123, 128 (4th Cir. 2010)
(internal quotation marks and alteration omitted).
When assessing whether a police officer has the requisite
reasonable suspicion, the court “must consider the totality of
the circumstances” known to the officers at the time, and “give
due weight to common sense judgments reached by officers in
light of their experience and training.” Id. (internal
quotation marks omitted). “[I]t is entirely appropriate for
courts to credit ‘the practical experience of officers who
observe on a daily basis what transpires on the street.’”
Branch, 537 F.3d at 336-37 (quoting United States v. Lender, 985
F.2d 151, 154 (4th Cir. 1993)). Thus, “[c]ourts must look at
the cumulative information available to the officer and not find
10
a stop unjustified based merely on a piecemeal refutation of
each individual fact and inference.” Id. at 337 (internal
quotation marks and citation omitted). “It is the entire mosaic
that counts, not single tiles.” Id. (internal quotation marks
omitted). Accordingly, “[a] set of factors, each of which [is]
individually ‘quite consistent with innocent travel,’ c[an]
still, ‘taken together,’ produce a ‘reasonable suspicion’ of
criminal activity.” Id. (quoting United States v. Sokolow, 490
U.S. 1, 9 (1989)). But “[t]he articulated innocent factors
collectively must serve to eliminate a substantial portion of
innocent travelers before the requirement of reasonable
suspicion will be satisfied.” Digiovanni, 650 F.3d at 511
(internal quotation marks omitted).
B.
In this case, Cohen does not contest that the traffic stop
was justified at its inception and reasonable in its duration.
Moreover, the parties agree that the lawful traffic stop
concluded when Detective Beckwith handed Cohen the warning
citation, told him to have a nice day, and was denied permission
to search Cohen’s vehicle. Cohen’s motion to suppress,
therefore, was based upon his claim that the officers did not
develop the requisite reasonable suspicion during the traffic
stop to justify his detention after it concluded.
11
1.
At the outset, we consider Cohen’s assertion that the
district court erred in finding that Detective Beckwith’s pat-
down search of Cohen’s clothing was consensual and, therefore,
that Cohen’s possession of blunt wraps was a pertinent factor in
the reasonable suspicion determination. We disagree.
As noted by the district court, “voluntary citizen-police
encounters do not implicate the Fourth Amendment.” United
States v. Black, 525 F.3d 359, 364 (4th Cir. 2008). Moreover,
consent to a search need not be express, but “may be inferred
from actions as well as words.” United States v. Hylton, 349
F.3d 781, 786 (4th Cir. 2003); see United States v. Wilson, 895
F.2d 168, 170 (4th Cir. 1990) (per curiam). The determination
of whether a suspect has consented to a search is a subjective
one, also evaluated in light of the “the totality of the
circumstances.” Wilson, 895 F.2d at 171 (internal quotation
marks omitted). The district court makes the factual
determination of whether there was consent to a search, and we
must uphold that finding unless it is clearly erroneous in light
of the evidence presented. See id. at 172; United States v.
Lattimore, 87 F.3d 647, 650-51 (4th Cir. 1996) (en banc).
In Wilson, a Drug Enforcement Agent observed a suspicious
bulge in a defendant’s pants and asked for permission to search
him. In response, the defendant “shrugg[ed] his shoulders and
12
rais[ed] his arms.” 895 F.2d at 172. Noting that the defendant
had “raised his arms in response to [the officer’s] request for
permission to pat him down, a request made without threats,
force, or physical intimidation,” we held that “[i]t was not
‘clearly erroneous’ for the district court to find that the
search was consensual.” Id. at 170.
In this case, the district court likewise found that
Detective Beckwith did not threaten or coerce Cohen in any way.
Nor did he claim legal authority to search Cohen. When
Detective Beckwith asked Cohen if had a weapon, Cohen said “no,”
and voluntarily raised his arms, which Detective Beckwith
reasonably interpreted as an implied consent to search. Thus,
Cohen “did not merely consent to a search of his person,” as the
defendant did in Wilson. J.A. 98. Rather, Cohen’s “actions
were an affirmative invitation to” Detective Beckwith to search
him. J.A. 98.
On appeal, Cohen argues that, even if he impliedly
consented to the pat-down search, his actions only indicated a
consent to a pat-down search for weapons, and not a consent to
the officer’s removal of the blunt wraps from his pocket. The
district court’s factual findings, however, do not support
Cohen’s current claim that his consent was circumscribed in this
way. Nor does the record. As the district court additionally
13
found, Cohen did not “lower his arms, protest, or move away” at
any point “before, during, or after the pat-down.” J.A. 98.
Accordingly, we hold that the district court did not
clearly err in finding that Cohen consented to the search that
resulted in discovery of the blunt wraps and, therefore, that
the blunt wraps were properly considered as a factor in the
officer’s reasonable suspicion determination. 4
2.
Viewing the evidence in the light most favorable to the
government, we likewise cannot say that the district court
clearly erred in finding that the totality of the circumstances
justified Cohen’s detention beyond the scope of the lawful
traffic stop and, consequently, in denying Cohen’s motion to
suppress.
As an initial premise, we reject Cohen’s contention that
the district court erred in considering his nervousness as a
pertinent factor in the “reasonable suspicion” determination.
4
Actually, we see no indication that Cohen contested the
legality of the pat-down search of his person in his motion to
suppress, or argued before the magistrate judge that the search
violated the Fourth Amendment. Rather, the magistrate judge
appears to have sua sponte recommended that the blunt-wrap
evidence be excluded from consideration because Detective
Beckwith did not have a reasonable suspicion that Cohen was
armed and dangerous. In any event, the only issue before us now
is whether the district court clearly erred in finding that the
pat-down search was consensual, and we do not consider the
question of whether the search would have been invalid absent
such consent.
14
“‘It 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.’” United
States v Massenburg, 654 F.3d 480, 490 (4th Cir. 2011) (quoting
United States v. Salzano, 158 F.3d 1107, 1113 (10th Cir. 1998))
(alteration omitted). But where a suspect exhibits “‘signs of
nervousness beyond the norm,’” it is a “highly relevant” factor
for consideration. Id.; see also United States v. Mayo, 361
F.3d 802, 805-06 (4th Cir. 2004); United States v. McFarley, 991
F.2d 1188, 1192-1193 (4th Cir. 1993).
Here, the district court found that Cohen exhibited “the
kind of abnormal nervous behavior that can support reasonable
suspicion,” J.A. 100, and our precedent supports its
determination. Detective Beckwith was an experienced police
officer who had been involved in “hundreds” of traffic stops.
He immediately noticed that Cohen was exhibiting unusual nervous
indicators for a routine traffic stop, a practical judgment that
was entitled to the credit the district court gave it. See
Mason, 628 F.3d at 128; Branch, 537 F.3d at 336-37. Cohen “was
breathing rapidly, not making good eye contact, frequently
taking sips of his drink, was excessively talkative, strangely
agreeable and polite, and hesitated when answering if he had
ever been arrested.” J.A. 99. Even so, Detective Beckwith did
not base the decision to detain Cohen solely upon these initial
15
observations. Cohen’s demeanor, which was initially apologetic
and agreeable, turned to disagreeable and defensive when
Detective Beckwith asked him to get out of his vehicle. And
when Detective Beckwith had Cohen sit in the patrol vehicle to
write the warning citation, Cohen’s nervousness continued to
escalate, despite Detective Beckwith’s reassurances that Cohen
would only be given a warning citation and his attempts to
diminish Cohen’s anxiety by engaging him in small talk. Cohen
“continued breathing rapidly, and was fidgeting with his cell
phone, wiping his hands on his legs, wrenching his hands, and
continuously swallowing.” J.A. 99. Again, this behavior “was
atypical in Detective Beckwith’s experience.” J.A. 100. Such
continued or prolonged nervousness, we have held, can lead to
reasonable suspicion because, as Detective Beckwith stated, an
innocent individual’s initial nervousness usually subsides. See
Mason, 628 F.3d at 129 (relying, in part, upon the fact that the
suspect “was sweating and unusually nervous when interacting
with [the officer], and [his] nervousness did not subside, as
occurs normally, but became more pronounced as the stop
continued”).
In any event, Cohen’s abnormally nervous behavior did not
serve as the sole basis upon which Detective Beckwith based his
suspicion that Cohen’s vehicle contained illegal drugs. The
officers had just observed Cohen traveling through an area known
16
for drug trafficking and other crimes, also a pertinent factor
for consideration. See Lender, 985 F.2d at 154 (noting that
while “mere presence in a high crime area is not by itself
enough to raise reasonable suspicion, an area’s propensity
toward criminal activity is [also] something that an officer may
consider”). During the course of his conversation with Cohen,
Detective Beckwith also learned that Cohen had a prior arrest
and conviction for felony possession of marijuana. See United
States v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997) (noting
that while a suspect’s criminal history may be insufficient to
warrant reasonable suspicion that he is engaged in crime again,
“an officer can couple knowledge of prior criminal involvement
with more concrete factors in reaching a reasonable suspicion of
current criminal activity”).
Finally, and importantly, Cohen was found in possession of
drug paraphernalia during the traffic stop. Blunt wraps, which
were removed from Cohen’s person during the consent pat-down
search, are commonly associated with the use of drugs and, in
particular, with marijuana. See United States v. Sakyi, 160
F.3d 164, 169 (4th Cir. 1998) (holding that the officer “had a
reasonable suspicion, based on several hundred cases in which a
Phillies Blunt cigar box was associated with marijuana, that
drugs were present in the vehicle he stopped”).
17
In sum, the totality of the circumstances supports the
district court’s determination that the officers had reasonable
suspicion to detain Cohen beyond the lawful traffic stop. As
succinctly summarized by the district court, Cohen was traveling
“in a high drug crime area. He displayed unusual and
unsubsiding nervous behavior throughout the encounter, despite
being told he was only going to receive a warning. Officers
learned that he had a prior conviction for possession of
marijuana, and found what is commonly known to be marijuana
paraphernalia on his person.” J.A. 102. Although “none of
these factors individually are incapable of having an innocent
explanation,” when considered collectively and in light of the
officers’ experience and training, “the combination . . .
serve[d] to eliminate a substantial portion of innocent
travelers.’” J.A. 102.
III.
For the foregoing reasons, we affirm the district court’s
denial of Cohen’s motion to suppress. 5
AFFIRMED
5
Because the totality of the circumstances was sufficient
to establish a reasonable suspicion of criminal activity
justifying Cohen’s detention after the traffic stop concluded,
we need not address the government’s alternative argument that
the discovery of the outstanding warrant within two minutes of
the conclusion of the stop would have led to the inevitable
discovery of the evidence.
18
DAVIS, Senior Circuit Judge, concurring:
I am pleased to concur in the majority opinion. I offer
this short comment to highlight the importance of this case for
prosecutors and criminal defense counsel handling suppression
motions before United States Magistrate Judges in felony cases,
a phenomenon seemingly on the rise in some districts. Although
district judges conduct de novo review of magistrate judges’
reports and recommendations, magistrate judges are the first-
level factfinders, and, absent an evidentiary hearing “do-over”
by the district judge, the exclusive authority on demeanor
evidence and credibility assessments. See ante at 11-13 & n.4.
The lesson here is simply that, as always, counsel need to pay
heed to the identity of the factfinder and the relative
competence, in the hierarchy of judicial review, of who has the
last word on findings regarding the “who, what, when, and
where,” cf. United States v. Santiago, 268 F.3d 151, 156 (2d
Cir. 2001) (Sotomayor, J.), which underlie consequential
judicial determinations.
19