634 F.3d 243 (4th Cir. 2011), 09-5161, United States v. Foster

Docket Nº:09-5161.
Citation:634 F.3d 243
Opinion Judge:GREGORY, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David DeShawn FOSTER, Defendant-Appellant.
Attorney:Curtis Scott Holmes, Brock, Payne & Meece, PA, Durham, North Carolina, for Appellant. Eric David Goulian, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. George E.B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Office of the United...
Judge Panel:Before MOTZ, GREGORY, and WYNN, Circuit Judges. Reversed, vacated, and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge MOTZ and Judge WYNN joined.
Case Date:March 02, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 243

634 F.3d 243 (4th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

David DeShawn FOSTER, Defendant-Appellant.

No. 09-5161.

United States Court of Appeals, Fourth Circuit.

March 2, 2011

Argued: Dec. 10, 2010.

Page 244

ARGUED:

Curtis Scott Holmes, Brock, Payne & Meece, PA, Durham, North Carolina, for Appellant.

Eric David Goulian, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

ON BRIEF:

George E.B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before MOTZ, GREGORY, and WYNN, Circuit Judges.

Reversed, vacated, and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge MOTZ and Judge WYNN joined.

OPINION

GREGORY, Circuit Judge:

David Foster was indicted on one count of possession with intent to distribute cocaine in violation of 21 U.S. C. § 841(a)(1). Police officers discovered cocaine and drug paraphernalia on his person during the course of an investigative stop. Foster filed a motion to suppress this evidence, arguing that the officers lacked reasonable suspicion to make the stop. After ruling that the underlying circumstances provided the officers with the requisite level of suspicion, the district court denied his suppression motion. Thereafter, Foster entered into a conditional plea agreement whereby he pled guilty to the charge, but reserved his right to appeal the denial of his suppression motion.

Page 245

On appeal, we hold that the officers lacked a reasonable, articulable factual basis for seizing Foster. We therefore reverse the judgment of the district court and remand.

I.

On August 8, 2008, at approximately 1:00 P.M., Detective J. Ragland, a seventeen-year veteran of the Henderson Police Department, exited a restaurant after eating lunch with his wife. As Detective Ragland, in plain clothes, walked towards his unmarked police vehicle, he noticed a young black male sitting in the driver's seat of an SUV with his hands on the steering wheel. Detective Ragland saw the man's mouth move, but could not make out what he was saying. He then witnessed a second black male sit up in the passenger seat from a crouching position. The detective recognized the second individual as David Foster, Defendant-Appellant. Detective Ragland knew Foster because he had previously dated Foster's cousin, and he had arrested Foster in the past for driving with a revoked license. He was also aware that Foster had been arrested at one point for a marijuana-related crime. Detective Ragland believed that Foster recognized him as a police officer.

The moment the two saw one another, the detective observed Foster's arms " shifting" and " going haywire." Joint Appendix (" J.A." ) 47, 69. However, Detective Ragland never saw Foster's actual hands, only his upper body and arms above the elbow. While continuing on his way towards the police vehicle, the detective walked past the SUV and asked its occupants " What are ya'll doing?" J.A. 56-57. Foster replied that they were " just chilling." J.A. 47. From his point of view, the detective could not tell whether Foster appeared nervous or otherwise apprehensive to speak. Detective Ragland then responded either " Knowing you, you are doing something else," J.A. 48, or " Knowing you, you are up to something," J.A. 60. Detective Ragland then entered his own vehicle and left the parking lot.

Detective Ragland drove across the street to a bank parking lot and continued to observe the SUV. He did not see anyone get into or approach the vehicle. He did not see anyone leave the vehicle. He called Sergeant Darnell, the drug unit supervisor, and was informed that Foster was under investigation. Detective Ragland understood this comment to mean that Foster was under investigation for a drug related offense. He also called Officer Macialek for assistance with a possible drug arrest. Approximately fifteen minutes after first encountering Foster, Detective Ragland returned to the still parked SUV with Officer Macialek.

The officers used their respective vehicles to block the SUV in, got out of their cars, and separately approached either side of the SUV. Officer Macialek approached the passenger side of the vehicle with his gun drawn. The officers asked Foster and the driver to show their hands, and they complied. Detective Ragland asked the driver for identification, and the driver informed him that his license was in his back pocket. While the driver and Foster remained in the car, Detective Ragland performed a pat-down search. He then allowed the driver to retrieve his license. Detective Ragland asked for the vehicle registration, and...

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