U.S. v. Banks

• Decision Date: 14 July 1997
• Docket Number: Criminal Action No. 97-138-A.
• Citation: 971 F.Supp. 992
• Parties: UNITED STATES of America v. Fletcher Edward BANKS, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

Page 992

971 F.Supp. 992

UNITED STATES of America v. Fletcher Edward BANKS, Defendant.

Criminal Action No. 97-138-A.

United States District Court, E.D. Virginia, Alexandria Division.

July 14, 1997.

Helen F. Fahey, U.S. Atty., Gavin Corn, Special Asst. U.S. Atty., Alexandria, VA, for U.S.

Matthew Wartel, Alexandria, VA, for Fletcher Edward Banks.

MEMORANDUM OPINION

ELLIS, District Judge.

In this case, a Virginia State Trooper stopped a vehicle because he suspected its driver was either dangerously fatigued or intoxicated. Following the driver's successful performance of a field sobriety test, the State Trooper then questioned him about whether the vehicle contained any illegal contraband. To the Trooper's surprise, the driver admitted that he had narcotics in the vehicle. This admission triggered a search that confirmed the presence of drugs in the vehicle and led to the driver's arrest and indictment. Thereafter, the driver filed a pretrial suppression motion, which presents the question whether the State Trooper's inquiry on a subject unrelated to the initial reason for the stop was supported by an articulable, reasonable suspicion that illegal drug activity was afoot.

I

The pertinent facts are essentially undisputed. While patrolling Interstate 95 on the morning of June 6, 1996 in an unmarked cruiser, Virginia State Police Senior Trooper Mark Wilkinson observed a vehicle traveling 5 to 7 miles slower than the posted speed limit of 65 mph and weaving to the right of its lane. Trooper Wilkinson had initially planned to pass the vehicle on his way to respond to a stranded motorist call. Instead, he elected to slow down and to follow the vehicle briefly. While doing so for about three tenths of a mile, he noticed that the vehicle was weaving within its lane, that other automobiles were passing him, and that the driver appeared to be adjusting the vehicle's radio. As a twenty year veteran of the Virginia State Police, Trooper Wilkinson suspected that the driver, defendant Fletcher Edward Banks, Jr., was either dangerously fatigued or intoxicated. Accordingly, he pulled the vehicle over to the right shoulder of the highway. Safety concerns prompted Trooper Wilkinson to approach the vehicle on foot on the passenger side. There, he asked Banks for his license and registration. In response, Banks handed Trooper Wilkinson his license and the vehicle's rental agreement. While standing there, Trooper Wilkinson noticed two small bags in plain view — an overnight bag on the back seat and a bag on the floor behind the driver's seat. He also noted the vehicle's North Carolina tags.

Trooper Wilkinson then inquired about Banks' travel plans. Banks stated that he had left New York City and was returning to Charlottesville, Virginia. Next, Trooper Wilkinson informed Banks that he had been stopped for suspicion of driving while fatigued or under the influence and requested that he exit the rented vehicle. Banks complied. Trooper Wilkinson proceeded to ask Banks a few more routine questions. In response, Banks told Trooper Wilkinson that he resided in Charlottesville, was employed by McDonalds, and had worked the previous day's shift. After finishing his shift in the afternoon, Banks rented the vehicle, drove to New York City, spent only a few hours there, and was returning home when stopped. This narrative heightened Trooper Wilkinson's suspicion that Banks was fatigued, for it clearly indicated that Banks had been awake for at least 24 hours. Although Trooper Wilkinson detected no odor of alcohol, he ordered Banks to stand on one leg as part of a field sobriety test. Since Banks adequately performed this task, Trooper Wilkinson concluded that Banks was not inebriated and administered no further sobriety tests. Yet, based on his eight years of experience as a narcotics canine handler and the facts and circumstances he then knew, Trooper Wilkinson also suspected that Banks might be transporting illegal narcotics.¹

At this point, while he retained Banks' license and rental agreement, Trooper Wilkinson queried Banks about the contents of his vehicle. Specifically, Trooper Wilkinson asked Banks if he was concealing any illegal contraband. Banks answered "no." Although Banks was polite and cooperative, Trooper Wilkinson noticed that Banks' demeanor had changed somewhat when he mentioned the topic of unlawful drugs. Banks became unusually and visibly nervous, trembling slightly and glancing for the first time at his rented automobile. So Trooper Wilkinson persisted in this line of questioning, asking Banks a second time whether the rental vehicle contained hidden contraband. To Trooper Wilkinson's apparent surprise, Banks responded "yes" and volunteered that there were drugs in the bag behind the driver's seat. Up to this point, the traffic stop had lasted no more than five minutes.

Next, Trooper Wilkinson undertook to search the vehicle and to retrieve the bag he had seen. To ensure his safety in doing so, he directed Banks to walk 75-100 feet away from the rental vehicle. As he searched Banks' vehicle for the bag, Trooper Wilkinson noticed Banks running in his direction. He immediately exited the automobile, drew his service revolver, and held Banks at gunpoint. After ordering Banks to the ground, Trooper Wilkinson radioed for assistance. When assistance arrived, Banks was handcuffed and the rental vehicle was searched. In the course of the search, Trooper Wilkinson located a plastic bag, opened it, and found a white rock-like substance, which he believed (and tests later confirmed) was crack cocaine.

The Commonwealth of Virginia charged Banks with felony possession with intent to distribute cocaine, in violation of Va.Code § 18.2-248. At the preliminary hearing in the Prince William County General District Court, Banks' motion to suppress was granted on the ground that Trooper Wilkinson had lacked a sufficient basis to execute the traffic stop in the circumstances. The Commonwealth did not seek reconsideration of that ruling, the case was dismissed, and no appeal was pursued.

Then, in March 1997, a federal grand jury returned a one count indictment charging Banks with possession with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Banks filed pretrial motions to suppress evidence and statements related to his arrest by Trooper Wilkinson and to dismiss the indictment for prosecutorial misconduct and collateral estoppel. Oral argument on the motions was heard on June 6, 1997, after which both of Bank's motions were denied. United States v. Banks, Crim. No. 97-138-A (Order, June 9, 1997).² Subsequently, on June 11 1997, Banks filed a motion for reconsideration of the Court's ruling on his motion to suppress. On June 16, 1997, the Court heard oral argument, took the motion under advisement, directed the parties to submit supplemental briefs, and scheduled additional oral argument for Thursday July 3, 1997. United States v. Banks, Crim. No. 97-181-A (Order June 16, 1997). The parties complied and the Court denied Banks' motion for reconsideration for the reasons stated from the bench pursuant to Rule 12, Fed.R. Crim.P. United States v. Banks, C.A. No. 96-345-a (Order, July 3, 1997). This Memorandum Opinion further elaborates the reasons for the ruling.

II

In his motion to suppress, Banks contends that Trooper Wilkinson's questions about drugs exceeded the scope of the traffic stop and, thus, converted the encounter into an unlawful detention. Specifically, Banks argues that Trooper Wilkinson's questions pertaining to illegal contraband violated the Fourth Amendment because he had no articulable, reasonable suspicion of drug activity. The government counters that Trooper Wilkinson's inquiry about drugs concealed in the vehicle was supported by objective facts and that, as a consequence, the search and seizure were valid.

The principles dispositive of this dispute are well-established. In Whren v. United States, ___ U.S. ___, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the Supreme Court recently confirmed that probable cause to believe that a routine automobile violation has occurred justifies a traffic stop. As a general rule, an ordinary traffic stop constitutes a "seizure" within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). But since a traffic stop is a limited seizure, more akin to an investigative detention than a custodial arrest, the reasonableness of such a stop is assessed under the precepts of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3149-50, 82 L.Ed.2d 317 (1984); United States v. Rusher, 966 F.2d 868, 875 (4th Cir.), cert. denied, 506 U.S. 926, 113 S.Ct. 351, 121 L.Ed.2d 266 (1992). Specifically, Terry commands that a police officer have a reasonable suspicion, based on articulable facts, that criminal activity is afoot. Terry, 392 U.S. at 29, 88 S.Ct. at 1884-85; see also United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); United States v. Moore, 817 F.2d 1105, 1107 (4th Cir.), cert. denied, 484 U.S. 965, 108 S.Ct. 456, 98 L.Ed.2d 396 (1987). The quantum of articulable, reasonable suspicion required, however, is less than that required for probable cause. Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585 (citing United States v. Montoya de Hernandez, 473 U.S. 531, 541, 105 S.Ct. 3304, 3310-11, 87 L.Ed.2d 381 (1985)). Courts assessing the validity of a Terry "stop," like courts assessing probable cause, must consider "the totality of the circumstances." United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). And significantly, the "totality of the circumstances" may be based entirely on lawful conduct, for a combination of potentially innocent factors can alert the trained eyes of a police officer to illegal activity. Sokolow, 490 U.S. at 9, 109 S.Ct. at...