United States v. Bowman, 030118 FED4, 16-4848

Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
Attorney:Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. Ross Hall Richardson, Federal Public Defender, Interim, FEDERAL PUBLIC DEFENDER F...
Judge Panel:Before TRAXLER, KING, and HARRIS, Circuit Judges.
Opinion Judge:TRAXLER, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRIAN BOWMAN, Defendant-Appellant.
Case Date:March 01, 2018
Docket Nº:16-4848
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

BRIAN BOWMAN, Defendant-Appellant.

No. 16-4848

United States Court of Appeals, Fourth Circuit

March 1, 2018

          Argued: December 7, 2017

         Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:15-cr-00101-MR-DLH-2)

         ARGUED:

          Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.

          Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

         ON BRIEF:

          Ross Hall Richardson, Federal Public Defender, Interim, FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF NORTH CAROLINA, Charlotte, North Carolina, for Appellant.

          Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

          Before TRAXLER, KING, and HARRIS, Circuit Judges.

          TRAXLER, Circuit Judge.

         Brian Bowman appeals the district court's denial of his motion to suppress evidence recovered from a dog sniff conducted after an already-completed traffic stop. We conclude that the police officer had neither Bowman's consent to extend the traffic stop nor a reasonable, articulable suspicion of ongoing criminal activity to justify doing so. Accordingly, the prolonged traffic stop abridged Bowman's right under the Fourth Amendment to be free of unreasonable seizures. We vacate Bowman's conviction for possession with intent to distribute methamphetamine and remand for such further proceedings as may be appropriate.

         I.

         At the suppression hearing before the magistrate judge, the government submitted a dashcam video recording of the entire traffic stop and presented the testimony of the arresting officer, Trooper Andrew Waycaster of the North Carolina State Highway Patrol's Criminal Interdiction Unit. The evidence adduced at the hearing was as follows. In the early morning hours of June 20, 2015, Waycaster was patrolling U.S. Route 25 in Henderson County, North Carolina. He received a tip from the Drug Enforcement Agency (DEA) that two individuals suspected of transporting methamphetamine from Atlanta to the Asheville and Hendersonville areas were possibly driving "a red, older model Lexus" in the area. J.A. 82. Additionally, the DEA provided the license plate number for the vehicle. At about 3:40 a.m., Waycaster spotted a red 1998 Lexus traveling north on U.S. Route 25 and followed in his patrol vehicle. Rather than stop the vehicle based on the information provided by the DEA, Waycaster was "looking for [his] own infractions . . . for [his own] reason to stop the vehicle." J.A. 86.1 According to Waycaster, the red Lexus weaved over the fog line and accelerated up to a steady 10 miles per hour over the speed limit, leading Waycaster to believe that the driver might be operating under the influence of alcohol or drugs.

         Waycaster stopped the Lexus, approached from the passenger side of the vehicle and asked both occupants to show their hands. Bowman was the driver, and Homero Alvarez occupied the front passenger's seat. Waycaster testified that Bowman appeared to be nervous because his hands were shaking when he handed over his vehicle registration and driver's license. Waycaster indicated that Alvarez "was continually staring straight ahead" rather than looking at him, behavior that Waycaster found suspicious. J.A. 90. Waycaster further testified that he saw movement in Bowman's and Alvarez's carotid arteries, leading him to conclude that both men had elevated heart rates and were nervous.

         Waycaster did not see any alcohol or firearms. However, Waycaster took note of several items in Bowman's car, including an energy drink in the front seat console, food and food wrappers in the front seat, and a suitcase and loose items of clothing in the back seat. According to Waycaster, the presence of these items suggested that Bowman and Alvarez "could have been possibly traveling for a . . . long period of time, and in a hurry to get from one location to another [without] taking time to stop and rest or have meals." J.A. 91.

          Waycaster told Bowman that "the reason for the traffic stop was the weaving and speeding violations, " and he asked Bowman to exit his vehicle and go back to the patrol car so that Waycaster could check his information. J.A. 93. Alvarez remained seated in the Lexus. After stepping out of his vehicle, Bowman consented to a weapons frisk, and Waycaster found none. Waycaster testified that during this time, he could see Alvarez moving around in the front of the Lexus and looking back towards Waycaster and Bowman-activity that Waycaster believed was an additional indicator of nervousness.

         Waycaster then instructed Bowman to sit in the patrol vehicle while he ran a check on Bowman's driver's license and vehicle registration. Bowman complied and sat in the patrol car's front passenger's seat. While Waycaster processed Bowman's driving information, Bowman apologized for speeding and stated that he believed he had been traveling within the speed limit. As for the weaving, Bowman told Waycaster that he had purchased the Lexus during the previous week, and that he was having issues with the front end of the vehicle. Bowman also indicated that he was tired.

         Waycaster then asked Bowman where he and Alvarez had come from and where they were going. At the hearing, Waycaster maintained he asked this question based not on the DEA tip but rather based on "the time of morning, 3:40 in the morning, and his increased nervousness." J.A. 98. Bowman responded that he was "headed home" after having "picked up Mr. Alvarez at [Alvarez's] girlfriend's house" 25 to 30 minutes earlier, J.A. 97-98, and explained that Alvarez was a good friend who had given him a ride in the past and that Bowman was returning the favor because "Alvarez's vehicle wasn't legal, " J.A. 100. Bowman was unable to give Waycaster the girlfriend's address but offered that he had entered the location into the GPS in his Lexus. Bowman stated that he lived in Black Mountain, North Carolina, but that he had been staying with his girlfriend near Fletcher, North Carolina. He also indicated that he lived about twenty minutes away from Alvarez.

         Waycaster also asked Bowman what he did for a living. Bowman stated that he was a welder and fabricator but that he was presently laid off from work. Waycaster further asked Bowman if he had any prior speeding tickets, and Bowman responded that he had one prior ticket while using a different vehicle that he had purchased using Craigslist. He did not indicate when he had purchased the vehicle. Bowman added that he "buy[s] cheap cars off of Craigslist." J.A. 154. Waycaster testified that he found it suspicious that Bowman "was in possession of one car and admitted he recently bought another car off Craigslist" because "[i]t's a known practice with narcotics traffickers to either use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to transport narcotics." J.A. 101. Also, Waycaster was skeptical about Bowman's ability to purchase "multiple vehicles in a short period of time" while he was laid off. J.A. 154.

         After speaking with Bowman, Waycaster did not believe he was driving under the influence and issued him a warning for speeding and unsafe movement of the vehicle. Waycaster then completed the traffic stop by returning Bowman's driver's license and registration and shaking his hand.

         As Bowman began to exit the patrol vehicle, Waycaster asked if he could speak with Bowman further. Bowman consented and remained in the patrol car. Waycaster asked additional questions "to clarify where he had been" that evening. J.A. 103. In response to Waycaster's prompting, Bowman reiterated that he had picked up Alvarez from Alvarez's girlfriend's place, that he was not sure precisely where she lived, and that the location of the pick up could be found in the Lexus's GPS. When pressed by Waycaster to tell him generally where she lived, Bowman indicated it was in North Carolina and that he and Alvarez had been driving for 25-30 minutes when Waycaster stopped them. Waycaster also asked for the girlfriend's name, but Bowman did not know it.

         Waycaster then stated to Bowman, who was still seated in the patrol car, that he "was going to go ask [Alvarez] questions if you don't mind, okay?" Bowman responded, "okay, " and remained in the vehicle. Then, as Waycaster was getting out of the patrol car, he told Bowman, "just hang tight right there, okay, " to which Bowman said, "oh, okay." Waycaster testified that at this point, Bowman was "not free to get out of that police car to leave" because Waycaster had developed from the traffic stop alone a reasonable suspicion of criminal activity sufficient to detain Bowman further. J.A. ...

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