537 F.3d 328 (4th Cir. 2008), 06-4257, United States v. Branch

Docket Nº:06-4257.
Citation:537 F.3d 328
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael Lawrence BRANCH, Defendant-Appellant.
Case Date:August 20, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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537 F.3d 328 (4th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael Lawrence BRANCH, Defendant-Appellant.

No. 06-4257.

United States Court of Appeals, Fourth Circuit.

August 20, 2008

Argued: May 15, 2008.

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ARGUED:

Kenneth Wendell Ravenell, Baltimore, Maryland, for Appellant.

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Andrea L. Smith, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

ON BRIEF:

Rod J. Rosenstein, United States Attorney, Jonathan G. Cooper, Law Clerk, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before WILKINSON and GREGORY, Circuit Judges, and Henry F. FLOYD, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge FLOYD joined. Judge GREGORY wrote a dissenting opinion.

OPINION

WILKINSON, Circuit Judge:

We are asked to review several rulings of the district court in the trial and sentencing of Michael Lawrence Branch for the possession and distribution of cocaine base and the illegal possession of a firearm. Branch's principal claim is that the district court erred under the Fourth Amendment in failing to suppress evidence seized from his person and vehicle during a traffic stop. In particular, Branch claims that the basis for the search of his car, a positive alert by a drug-sniffing dog, was only performed after the police had unconstitutionally prolonged a routine traffic stop.

After careful consideration, we reject Branch's claim. There is no question that the police were allowed to detain Branch after witnessing him commit a traffic violation, and, during this detention, the police formed a “reasonable suspicion" of ongoing criminal activity that justified extension of the traffic stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We also find Branch's other claims to be without merit, and we therefore affirm Branch's conviction and sentence.

I.

A.

Throughout the second half of 2004, Michael Branch was the subject of a narcotics investigation conducted by a detective from Anne Arundel County, Maryland. Twice during this period-on September 2 and September 14-an undercover detective purchased cocaine base from Branch.

On the night of October 29, while the narcotics investigation of Branch was still ongoing, police officer Tim White observed Branch, driving a white Mercedes Benz sedan, run a red light. White stopped the Mercedes at 6:50 p.m. and reported the location of the traffic stop and the car's license plate number, make, and model over his police radio. Upon receiving White's report, the dispatcher informed White that the same vehicle had been involved in a traffic incident on October 10. The dispatcher's response reminded White that he had been a backup officer for the prior incident, during which the Mercedes was pulled over in an area known for high volume drug trafficking.

After communicating with dispatch, White approached the driver's side of the sedan. While doing so, White observed that Branch was accompanied by a front seat passenger, later identified as Robert Cedric Johnson. White also noticed several air fresheners hanging in the car and a strong odor of laundry detergent. White asked Branch for his license and the car's registration. As Branch produced the documents, White observed that Branch's hand was “shaking" and that neither Branch nor Johnson would make eye contact with him.

White then reviewed Branch's license. Although White had never previously met

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Branch, he recalled Branch's name being mentioned by his fellow police officers in connection with drugs. White also noticed that Branch's address was in the same high volume drug area where the Mercedes had been pulled over on October 10. Finally, White observed that the Mercedes was not registered to Branch; instead, it was registered to a Christine Retz, who lived at a different address than Branch.

After confirming with Branch that he still resided at the address on his license, White returned to his police car. Given that it was dark and that there were two men in the Mercedes, White contacted dispatch at 6:51 p.m. and requested a backup unit on the scene. White also inquired as to whether a canine officer was available.

While waiting to hear about the availability of a canine officer, White broadcast Branch's name over his police radio. An officer replied by stating that Branch was “well known" to deal drugs.

At approximately 6:53 p.m., dispatch reported that no canine unit was available. In response, White requested the phone number for the Maryland Transportation Authority (“MTA" ) police. Two minutes later, dispatch provided White with the number, and White immediately called the MTA. The MTA informed White that they had a canine unit available at BWI airport, and they agreed to send the unit to support White. According to White, BWI airport was ten to fifteen minutes from the scene of the traffic stop.

At 6:56 p.m., White called dispatch to check Branch's license and the Mercedes's license plate against the Maryland Motor Vehicle Administration (“MVA" ) database. While awaiting a response, White began to fill in Branch's traffic citation. At 6:58 p.m., dispatch advised White that Branch's license was valid and that there were no outstanding warrants for his arrest. Two minutes later, dispatch reported that the Mercedes's registration was not on file with the MVA. Given this, White asked dispatch to check whether the vehicle's title number was on file. The MVA had no record of the title number either.

At approximately 7:03 p.m., White thus returned to the Mercedes to ask Branch about the vehicle's registration. Branch said that the car's owner, Retz, was his cousin, and that she had authorized him to use the Mercedes. White then asked Branch for Retz's phone number so he could confirm the story, but Branch said that Retz was unavailable because she was “in the Bahamas on her honeymoon." During this interaction, White again observed that Branch refused to make eye contact with him.

White returned to his vehicle and, at approximately 7:10 p.m., asked dispatch for information pertaining to the address listed on the Mercedes's registration. At 7:14 p.m., dispatch provided White with a telephone number. White called the number and spoke with a woman who identified herself as Christine Retz's mother. When questioned about the Mercedes, Retz's mother stated that she thought her daughter had returned the car to the dealer. When asked if Retz was in the Bahamas, Retz's mother, directly contradicting Branch's statement, said that Retz was in Baltimore and merely out for the night. Retz's mother then gave White Retz's cell phone number.

White subsequently called Retz, who confirmed that Branch was allowed to drive her Mercedes. White then began to finish writing Branch's traffic citation. At approximately 7:17 p.m., the MTA police officer Vincent Edwards arrived with a drug-sniffing dog. Two minutes later, White approached the Mercedes to issue a completed citation to Branch. Simultaneously, Edwards began to walk the dog

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around Branch's vehicle. When the dog reached the front passenger side, it gave a “positive alert," indicating that it had detected the presence of drugs.

At this point, both Branch and Johnson were instructed to exit the car. Edwards then placed the canine in the car, where the canine alerted again by scratching the dashboard near the glove compartment. White then forced open the locked glove compartment, finding cocaine base, a digital scale with white residue on it, assorted baggies (frequently used to bag cocaine base), and three unlabeled prescription bottles that contained assorted pills. Elsewhere in the car, White found five cell phones and $400 in cash inside a jacket pocket.

White then placed Branch under arrest. The Mercedes was seized and transported to the police station, where a more thorough search uncovered a firearm concealed between the right rear seat and the right rear door jamb, more baggies, further tiny amounts of crack cocaine, and a traffic citation that had been issued to Branch while driving the Mercedes on October 9, 2004.

B.

On January 20, 2005, a grand jury in the District of Maryland returned a four-count indictment against Branch. The first two counts charged Branch with distribution of cocaine base to an undercover police officer on September 2 and 14, 2004. See21 U.S.C. § 841. Counts three and four charged Branch with illegal possession of a firearm, see18 U.S.C. § 922(g)(1), and possession with intent to distribute cocaine base, see21 U.S.C. § 841. These latter two charges arose from the events precipitated by White's October 29, 2004 traffic stop of the Mercedes driven by Branch.

Branch, through counsel, filed three pre-trial motions relevant to this appeal. On February 24, 2005, he filed a motion to suppress any evidence seized from him or his vehicle during the October 29, 2004 traffic stop. On September 8, 2005, Branch filed a motion to sever counts one and two of his indictment from counts three and four. On October 7, 2005, Branch filed a motion to exclude evidence of his 2001 arrest and 2002 conviction for possession with intent to distribute cocaine base. After hearing testimony and oral argument, the district court denied all three of Branch's motions.

Branch's trial commenced on December 12, 2005. At trial, Branch sought to call Johnson, the passenger in the Mercedes driven by Branch on October 29, 2004, as a witness. Branch hoped that...

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