United States v. Sowards

• Decision Date: 26 June 2012
• Docket Number: No. 10–4133.,10–4133.
• Citation: 690 F.3d 583
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Sean C. SOWARDS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

690 F.3d 583

UNITED STATES of America, Plaintiff–Appellee,

v.Sean C. SOWARDS, Defendant–Appellant.

No. 10–4133.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 9, 2011.

Decided: June 26, 2012.

ARGUED:C. Dennis Gibson, II, Dennis Gibson Law, PLLC, Ridgecrest, North Carolina, for Appellant. Melissa Louise Rikard, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF:Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, and GREGORY and WYNN, Circuit Judges.

Reversed and remanded by published opinion. Judge WYNN wrote the majority opinion, in which Judge GREGORY concurred. Chief Judge TRAXLER wrote a dissenting opinion.

OPINION

WYNN, Circuit Judge:

On appeal, Sean C. Sowards argues that the district court erred in denying his motionto suppress because the police lacked probable cause to initiate a traffic stop based exclusively on an officer's visual estimate—uncorroborated by radar or pacing and unsupported by any other indicia of reliability—that Sowards's vehicle was traveling 75 miles per hour (“mph”) in a 70–mph zone. We agree and therefore reverse the district court.

I.

Deputy James Elliott stopped Sowards for speeding along North Carolina's Interstate 77 after visually estimating that Sowards's vehicle was traveling 75 mph in a 70–mph zone. Although Deputy Elliott's patrol car was equipped with radar, he had intentionally positioned his patrol car at an angle that rendered an accurate radar reading impossible. During the traffic stop, Deputy Elliott had a canine trained in drug detection, Ringo, sniff the outside of Sowards's vehicle. When Ringo signaled the possible presence of a controlled substance, Deputy Elliott, along with other officers, searched Sowards's vehicle and discovered approximately 10 kilograms of cocaine. Subsequently, a grand jury charged Sowards with possession of at least 5 kilograms of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A).

Before trial, Sowards moved to suppress the evidence on the basis that Deputy Elliott lacked probable cause to initiate the traffic stop in violation of the Fourth Amendment.¹ At the suppression hearing, Deputy Elliott testified that he was certified in the use of radar equipment in North Carolina. As a condition of obtaining radar certification, Deputy Elliott was required to visually estimate the speed of twelve separate vehicles and then have his visual speed estimates verified with radar. To pass the road test, Deputy Elliott's visual speed estimates could not vary from the radar by greater than a total of 42–mph for all twelve vehicles combined. Deputy Elliott testified, however, that, for any one vehicle, his visual speed estimate could have been off by as much as 12 mph, so long as he did not exceed the 42 mph total for all twelve vehicles combined.

Over the objection of defense counsel, Deputy Elliott testified that he had visually estimated that Sowards's vehicle was traveling 75 mph. Deputy Elliott further testified that the posted speed limit was 70 mph and that, therefore, Sowards's vehicle was exceeding the legal speed limit by 5 mph. Deputy Elliott also stated that he did not attempt to verify, or otherwise corroborate, his visual speed estimate with his radar unit; he did not attempt to pace Sowards's vehicle with his patrol car to gauge the speed; and he had not been trained on, and therefore did not use, the VASCAR system, which utilizes a stopwatch to approximate the time it takes a vehicle to travel over a predetermined distance.

When asked what technique, if any, he used to estimate the speed of Sowards's vehicle, Deputy Elliott testified as follows:

Q. [Government counsel] And do you learn certain techniques in visually determining the speed of the vehicle?

A. [Deputy Elliott] There's not really a technique. I've been measuring speeds all my life.

Q. And the radar serves what function in relation to your visual observation of the speed of the vehicle?

A. It's just a second opinion that already corroborates what you already know.

J.A. 24.

Q. [Defense counsel] You testified earlier that there was no technique to estimating speed. You use no technique; is that correct?

A. [Deputy Elliott] You don't need a technique. It's all based on your training and experience. As long as you have a tracking history and you have experience in observing speeds.

Q. So you can just basically look at a vehicle and guess.

A. There's no guessing about it. It's an estimation based on tracking history and my training and experience.

Q. Based on tracking history.

A. That's correct.

Q. Which would be?

A. Being able to sufficiently see that vehicle, that vehicle coming towards me, that vehicle passing me, me being able to estimate that vehicle's speed.

Q. And generally how long [did] you watch [Sowards's] vehicle?

A. At this point in time [Sowards] was approximately a hundred yards out before he was in front of me.

Q. Football field.

A. Approximately.

Q. Approximately. So you can estimate distance.

J.A. 80–81.

Subsequently, however, Deputy Elliott testified that he did not measure the distance that he tracked Sowards's vehicle and that his testimony of 100 yards of tracking history was an approximation rather than a certainty. Furthermore, on cross-examination, and when questioned directly by the district court about his knowledge of distances, Deputy Elliott gave several inconsistent and incorrect answers regarding measurements:

Q. [Government counsel] And how many feet are in a hundred yards?

A. [Deputy Elliott] There's 12 feet in a yard.

Q. So 300 feet?

A. Correct.

J.A. 109.

THE COURT: And how many feet are in a yard?

[Deputy Elliott]: How many feet? There's 12 feet in a yard.

THE COURT: Well, do you know what a yardstick is?

[Deputy Elliott]: Yes, sir.

THE COURT: How many inches in a yardstick?

[Deputy Elliott]: Well, on a yardstick there's 12 inches. Well, it depends on the yard stick that ... you have.

THE COURT: Use your hands to indicate a yardstick.

[Deputy Elliott]: A yardstick is about that long (indicating).

THE COURT: All right. And how many inches are in it?

THE WITNESS: Four foot in a yard.

J.A. 116.

Thereafter, Deputy Elliott testified that his visual estimation of the speed of Sowards's vehicle was not dependent on his ability to estimate the distance that it traveled.

Q. [Defense counsel] So how can you estimate speed without knowing the distance?

A. [Deputy Elliott] Because of my visual observation. I know that it takes a quicker time for vehicles to come at me at 75 miles per hour versus the 70 miles per hour zone in that area. The reason why I know that is because I've been working that area for approximately four and a half years. I've conducted radar enforcement. I've also conducted speed estimations upon my estimation of vehicles that I see that I work that area on a daily basis.

J.A. 80.

Q. Well, how can you be certain that [Sowards's vehicle] was going 75 miles an hour?

A. My training and experience.

...

Q. Could you explain the specifics of your visual estimation training as far as how you arrive at a speed.

A. Because I know a vehicle traveling 75 miles per hour, it gets faster to me than a vehicle that's traveling 70 miles per hour by my visual observation.

J.A. 93–94.

The district court denied Sowards's motion to suppress, rejecting Sowards's arguments and finding that Deputy Elliott had probable cause to initiate the traffic stop of Sowards's vehicle:

Officer Elliott had probable cause to believe a traffic violation had occurred based on speed. He's trained to estimate speeds. His difficulty with measurements is immaterial to his estimate of speed as that did not depend on time or distance. And the certification that he received, I believe three times, depended on accuracy in estimating speeds. So he had a particularized and objective basis for suspecting that a traffic violation had occurred.

J.A. 121. Subsequently, Sowards entered a conditional guilty plea, reserving the right to appeal any issues related to his suppression motion. At the sentencing hearing, the district court sentenced Sowards to 70 months' imprisonment, which was the low end of the Sentencing Guidelines range. ² Sowards filed a timely notice of appeal.

II.

A.

The issue on appeal is whether Deputy Elliott's traffic stop of Sowards's vehicle was supported by probable cause and, accordingly, whether the district court properly denied Sowards's motion to suppress the evidence seized from the car as a result of the traffic stop.

We review the district court's legal determinations de novo and its factual determinations for clear error. United States v. Moreland, 437 F.3d 424, 429 (4th Cir.2006). Under the clear error standard, “[a] factual finding by the district court may be reversed only if, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Walton v. Johnson, 440 F.3d 160, 173–74 (4th Cir.2006) (en banc) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). The evidence is construed in the light most favorable to the Government, the prevailing party below. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.1998).

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. “When a police officer stops an automobile and detains the occupants briefly, the stop amounts to a seizure within the meaning of the Fourth Amendment.” United States v. Digiovanni, 650 F.3d 498, 506 (4th Cir.2011) (citing Whren v. United States, 517 U.S. 806, 809–10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). “[T]he underlying command of the Fourth Amendment is always that searches and seizures be reasonable.” Wilson v. Arkansas, 514 U.S. 927, 931, 115 S.Ct. 1914,...