U.S. v. Foreman

• Citation: 369 F.3d 776
• Decision Date: 04 June 2004
• Docket Number: No. 03-4375.,03-4375.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ronald Cortez FOREMAN, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 776

369 F.3d 776

UNITED STATES of America, Plaintiff-Appellant, v. Ronald Cortez FOREMAN, Defendant-Appellee.

No. 03-4375.

United States Court of Appeals, Fourth Circuit.

Argued: December 5, 2003.

Decided: June 4, 2004.

Brian Lee Whisler, Assistant United States Attorney, Norfolk, VA, for Appellant.

Walter Bruce Dalton, Assistant Federal Public Defender, Norfolk, VA, for Appellee.

Paul J. McNulty, United States Attorney, Norfolk, VA, for Appellant.

Frank W. Dunham, Jr., Federal Public Defender, Frances H. Pratt, Research and Writing Attorney, Norfolk, VA, for Appellee.

Before LUTTIG and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Vacated and remanded with instructions by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge LUTTIG joined. Judge GREGORY wrote a separate opinion concurring in part and dissenting in part.

HAMILTON, Senior Circuit Judge.

The United States appeals from a district court order granting Ronald Cortez Foreman's motion to suppress evidence seized following the search of his Mercury Moutaineer on U.S. Route 13 (Route 13) in Northhampton County, Virginia on June 5, 2002. For the reasons stated below, we vacate the district court's order and remand the case to the district court with instructions to enter an order denying Foreman's motion to suppress.

I

A

At approximately 7:00 a.m. on June 5, 2002, Virginia State Police Trooper C.S. Wade (Trooper Wade) was working a narcotics interdiction assignment on the southbound side of Route 13 in Northhampton County, Virginia, just north of the Chesapeake Bay Bridge.¹ At that time, Trooper Wade observed Ronald Cortez Foreman (Foreman) in a "tense posture" driving a 1997 Mercury Mountaineer, holding the steering wheel with both hands and staring straight ahead as he passed Trooper Wade on Route 13. After following Foreman in his patrol car, Trooper Wade observed two traffic infractions: (1) excessive speed and (2) several air fresheners, hanging from the rearview mirror, obstructing the driver's windshield view, each in violation of Virginia state law. In response to Trooper Wade's activation of his emergency lights, Foreman drove his vehicle partially off the road and came to a stop.

Immediately upon approaching Foreman, Trooper Wade observed Foreman's pulse beating through his shirt, his hands visibly shaking, and the carotid artery on his neck throbbing more noticeably than the "thousands of people" that Trooper Wade had stopped in the past. (J.A. 32). Trooper Wade observed a fold of currency in the center console of Foreman's vehicle but did not see any luggage.²

Foreman accompanied Trooper Wade to his patrol car and sat in the passenger seat while Trooper Wade conducted a driver's license check. While Trooper Wade was waiting for the results of the driver's license check, Trooper R.M. Harcourt, Jr. (Trooper Harcourt) arrived on the scene with his drug dog.³ During the driver's license check, Trooper Wade asked Foreman about his destination. Foreman indicated that he was returning from a one-day trip to New York City to assist his brother who had been evicted on the evening of June 4, 2002. When Trooper Wade spoke of the problem of gun and drug smuggling on Route 13, he observed that Foreman's breathing became heavier and the pulsating of his carotid artery became more obvious. After inquiring about weapons in his vehicle, Trooper Wade inquired about narcotics in the vehicle, to which Foreman responded in the negative. Foreman also indicated that the only money he had was that already seen by Trooper Wade in the center console of the Mercury Mountaineer.

When Trooper Wade ascertained that Foreman's driver's license and registration were in order, he gave him a verbal warning regarding the speeding and windshield obstruction infractions. Trooper Wade returned Foreman's driver's license and registration, after which Foreman thanked Trooper Wade for the warnings and gave him a sweaty handshake. After the handshake, Foreman exited Trooper Wade's patrol car and stated that "he was going to take the air fresheners down right then." (J.A. 37). At this point, Foreman ostensibly was free to leave.

The following excerpt from the record is Trooper Wade's testimony at the suppression hearing regarding what happened next:

After he stepped out of the vehicle, which led me to believe that he was leaving, I asked him if I could ask him some more questions, or ask him some questions, and he stated, sure. I then again informed him of the problems of gun and drug smuggling on Route 13 and asked him if I could search his car, and Mr. Foreman initially stated, yeah, and then immediately after that stated, well, no, I don't want anybody searching my car.

(J.A. 37).⁴

As soon as Foreman indicated that he would not consent to the drug dog sniff Trooper Wade signaled Trooper Harcourt to "run his dog around the exterior of the vehicle." (J.A. 39). Trooper Wade then advised Foreman that he would have the drug dog that was on the scene run around the outside of the vehicle. Foreman nodded and stepped back.

Trooper Harcourt then deployed his drug dog on the exterior of Foreman's vehicle and the drug dog alerted. The parties agree that the duration of time from the initial stop until the drug dog alerted to Foreman's vehicle was approximately ten minutes.

During the ensuing search of the vehicle, the law enforcement officers recovered $800 in cash, approximately one kilogram of cocaine, and approximately 10.5 grams of cocaine base (crack). After the drugs were discovered, Foreman was arrested.

B

On November 12, 2002, in a one-count indictment, Foreman was charged by a federal grand jury in the Eastern District of Virginia with possession of cocaine with intent to distribute, 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). On December 17, 2002, Foreman filed a motion to suppress. On January 16, 2003, the district court held a hearing, in which only Trooper Wade and Trooper Harcourt testified. At the hearing, a videotape and its partial audio-track recording of the stop was admitted into evidence.⁵

On January 24, 2003, a superseding indictment for Foreman was returned, adding a count of possession with intent to distribute crack, 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). On April 1, 2003, the district court ruled on Foreman's suppression motion from the bench, granting the motion to suppress. On April 15, 2003, the United States filed a motion for reconsideration, which the district court denied in a written opinion and order filed on June 6, 2003. The United States filed a timely notice of appeal.

II

On appeal, the United States contends that the district court erred when it granted Foreman's motion to suppress. According to the United States, the seizure of the currency, cocaine, and crack from Foreman's vehicle did not violate Foreman's Fourth Amendment rights. Foreman counters by arguing that the seizure did violate his Fourth Amendment rights.

A

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. Temporary detention of an individual during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of a person within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court first held that the Fourth Amendment requires that a brief investigatory stop of an individual be supported by reasonable suspicion. The Terry reasonable suspicion standard requires an officer to have a reasonable suspicion that criminal activity is afoot. Id. at 30, 88 S.Ct. 1868.

Following Terry, the law has become well established that during a routine traffic stop, an officer may request a driver's license and vehicle registration, run a computer check, and issue a citation. United States v. Rusher, 966 F.2d 868, 876-77 (4th Cir.1992). Any further investigative detention, however, is beyond the scope of the Terry stop and, therefore, illegal unless the officer has a reasonable suspicion of other criminal activity or the individual consents to the further detention. Id.; see also United States v. Sullivan, 138 F.3d 126, 131 (4th Cir.1998). The Supreme Court has ruled that a drug dog sniff is not a search within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696, 706-07, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). However, in order to perform the sniff, there must be a seizure of the vehicle and, therefore, the person, requiring either consent to be detained or reasonable suspicion. United States v. McFarley, 991 F.2d 1188, 1191 (4th Cir.1993).

The standard of "reasonable suspicion" as used to evaluate the constitutionality of a Terry stop is not readily, or even usefully, reduced to a neat set of legal rules, but, rather, entails common sense, nontechnical conceptions that deal with factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act. Ornelas v. United States, 517 U.S. 690, 695-96, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The reasonable suspicion standard, like the probable cause standard, is a fluid concept which takes its substantive content from the particular context in which the standard is being assessed. Id.

The Supreme Court has recognized that factors consistent with innocent travel can, when taken together, give rise to reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ("[A]ny one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion."). Thus, Sokolow teaches us that it is not enough that Trooper Wade could articulate factors...