666 F.3d 180 (4th Cir. 2011), 08-4696, United States v. Powell

Docket Nº:08-4696.
Citation:666 F.3d 180
Opinion Judge:SHEDD, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Obie Lee POWELL, Defendant-Appellant.
Attorney:Daniel W. Stiller, Federal Defender Services of Wisconsin, Incorporated, Milwaukee, Wisconsin, for Appellant. Jonathan C. Su, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.
Judge Panel:Before KING, SHEDD, and FLOYD, Circuit Judges. Vacated by published opinion. Judge SHEDD wrote the majority opinion, in which Judge FLOYD joined. Judge KING wrote a dissenting opinion. KING, Circuit Judge, dissenting:
Case Date:November 14, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 180

666 F.3d 180 (4th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Obie Lee POWELL, Defendant-Appellant.

No. 08-4696.

United States Court of Appeals, Fourth Circuit.

November 14, 2011

Argued: Sept. 23, 2011.

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[Copyrighted Material Omitted]

Page 182

ARGUED:

Daniel W. Stiller, Federal Defender Services of Wisconsin, Incorporated, Milwaukee, Wisconsin, for Appellant.

Jonathan C. Su, Office of the United States Attorney, Greenbelt, Maryland, for Appellee.

ON BRIEF:

Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before KING, SHEDD, and FLOYD, Circuit Judges.

Vacated by published opinion. Judge SHEDD wrote the majority opinion, in which Judge FLOYD joined. Judge KING wrote a dissenting opinion.

OPINION

SHEDD, Circuit Judge:

During a routine traffic stop in Seat Pleasant, Maryland, police removed Obie Lee Powell, who was a passenger, from the vehicle and performed an officer-safety patdown on him. Based on evidence obtained by police after the patdown, a federal grand jury indicted Powell for possession with intent to distribute crack cocaine, possession of a firearm by a convicted felon, and possession of a firearm in furtherance of a drug trafficking crime. Before trial, Powell moved to suppress this evidence, arguing that the officers obtained it in violation of the Fourth Amendment. Following an evidentiary hearing, the district court denied the motion, holding ( inter alia ) that the officers had reasonable suspicion that Powell was armed and dangerous and were thus entitled to frisk him. Thereafter, a jury convicted Powell of the lesser-included offense of simple possession of crack cocaine and acquitted him of the other charges, and the court sentenced him to a 63-month term of imprisonment. On appeal, Powell contends that the court erred by denying his suppression motion.

In a case such as this, where law enforcement officers briefly patdown a person for safety reasons, reasonable suspicion that the person is armed and dangerous is necessary in order for the patdown to be lawful under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Earlier this year, in United States v. Foster, 634 F.3d 243, 248 (4th Cir.2011), we noted " our concern about the inclination of the Government toward using

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whatever facts are present, no matter how innocent, as indicia of suspicious activity." Twice in the past few months, we reiterated this concern. See United States v. Massenburg, 654 F.3d 480, 482 (4th Cir.2011); United States v. Digiovanni, 650 F.3d 498, 512 (4th Cir.2011). In all three cases, we held that the Government failed to meet its minimal burden of articulating facts sufficient to support a finding of reasonable suspicion. Today, we once again are presented with a case in which the Government has attempted to meet its burden under Terry by cobbling together a set of facts that falls far short of establishing reasonable suspicion. For this reason, we vacate the judgment.

I

We construe the evidence in the light most favorable to the Government, the prevailing party below. United States v. Kelly, 592 F.3d 586, 589 (4th Cir.), cert. denied, __ U.S. __, 130 S.Ct. 3374, 176 L.Ed.2d 1260 (2010). During the evidentiary hearing, the Government presented the testimony of three witnesses who were employed by the Seat Pleasant Police Department and were present at the traffic stop: Officer Catrina Davis, Officer Christopher Shelby, and Corporal Leroy Patterson.1 With the exceptions noted below, the parties agree that the testimony establishes the following facts, which are consistent with the district court's findings.

On the night of November 21, 2006, while on routine patrol, Officer Davis observed a 1997 Buick occupied by three individuals pull out from a parking lot. Powell was a passenger in the backseat of the Buick. Because the Buick had a burned-out headlight, Officer Davis stopped it. The stop occurred without incident.

Officer Davis made contact with the driver, Jermaine Mitchell, and obtained his driver's license and vehicle registration. At the same time, Corporal Patterson, who was on patrol with Officer Davis, approached the passenger side. As Officer Davis returned to her patrol car to process Mitchell's traffic citation, Corporal Patterson engaged in an amicable conversation with Powell. The topics of this conversation included their mutual appreciation of fish sandwiches (which Powell was eating) and music (which was audible in the Buick). During this conversation, Officer Shelby arrived to provide back-up assistance and joined Corporal Patterson at the passenger side of the Buick. A fourth officer was on the scene, but that officer does not appear to have played a material part in the traffic stop.

At some point, Powell indicated that he needed to pick up a child, and he asked how long the traffic stop would last. Corporal Patterson responded that he could not be certain about the expected duration of the traffic stop, and he told Powell that he was free to leave if he so desired. Powell declined the offer and remained in the Buick.

Eventually, an incoming radio communication advised Officer Davis, who was in her patrol car, that Mitchell's license was suspended. Officer Shelby, who was still standing by the Buick passenger side, heard this communication on his personal radio, and he asked Powell and the other passenger (identified as " Tawanda" ) if either one of them had a valid

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driver's license.2 Although Officer Shelby's reason for asking was to ascertain if either passenger could drive the vehicle away after the completion of the traffic stop, which they would have been permitted to do, he did not communicate that reason to Powell or Tawanda.

Powell gave his license to Officer Shelby who, in turn, checked its status via radio. A responsive radio communication indicated that the license was suspended and that Powell had " priors" for armed robbery. This latter information, known as " caution data," comes from a computer database and is communicated to police in Seat Pleasant anytime a person has ever been charged with a crime, no matter when the charge was made or its disposition. Regarding " priors" generally, Officer Shelby explained: " It's just a prior. It doesn't mean that they [sic] up to the same activity, but at which time you still have to take that into consideration, that they may still be armed or may still be conducting the same business." J.A. 53. Regarding Powell's " priors" specifically, Officer Shelby explained that he " had no way of knowing whether that was yesterday's news or 15 years ago news," and " [n]o way of knowing whether that was a conviction or an exoneration." Id.

At the time the caution data was broadcast, neither Powell nor the other occupants of the Buick had appeared suspicious or presented any threat or problem to the officers. Nonetheless, based solely on the caution data, Officer Shelby ordered Powell from the Buick and began to perform a patdown on him. During the patdown, Powell became nervous and twice dropped to one knee. 3 Thereafter, Powell unsuccessfully attempted to run from the officers, but he only got a few steps before they regained control over him and placed him in handcuffs. At this time, Powell was not under arrest.

Once the officers secured Powell, Corporal Patterson removed a backpack from the Buick near where Powell had been sitting. After finding a handgun in the backpack, the officers arrested Powell. During a search incident to the arrest, the officers found the crack cocaine that forms the basis for his conviction. At the conclusion of the traffic stop, Mitchell was cited for the traffic violation, and he and Tawanda were permitted to leave. The Buick was left parked on the street.

II

On appeal, Powell concedes the lawfulness of both the traffic stop and his

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subsequent removal from the Buick. See Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (holding that " an officer making a traffic stop may order passengers to get out of the car pending completion of the stop" ). However, he contends that Officer Shelby unlawfully patted him down after he exited the Buick because the officers did not have a reasonable basis to suspect that he was armed and dangerous. Powell's argument is grounded generally in " the basic rule that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well-delineated exceptions," Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009) (citation and internal quotation marks omitted), and, therefore, before an officer " places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so," Sibron v. N.Y., 392 U.S. 40, 64, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

More specifically, Powell's argument is based on the holding in Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 784, 172 L.Ed.2d 694 (2009), in which the Court extended the " stop and frisk" rule announced in Terry to passengers in a routine traffic stop. The Johnson Court held: " To justify a patdown of the driver or a passenger during a traffic stop, ... just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous." Id. As Powell notes, at the time Officer Shelby began the patdown, his interaction with the officers had been entirely amicable and he (like the driver and other...

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