United States v. Digiovanni, 080211 FED4, 10-4417
| Opinion Judge | HAMILTON, Senior Circuit Judge: |
| Party Name | UNITED STATES OF AMERICA, Plaintiff-Appellant, v. STEPHEN GERARD DIGIOVANNI, Defendant-Appellee. |
| Attorney | Ayn Brigoli Ducao, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant. Marta Kahn, Baltimore, Maryland, for Appellee. Rod J. Rosenstein, United States Attorney, Baltimore, Mary- land, for Appellant. William B. Purpura, PURPURA & PUR-PURA, Baltimore, Maryland, for Appellee. |
| Judge Panel | Before MOTZ and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Senior Judge Hamilton wrote the opinion in which Judge Motz and Judge Diaz joined. |
| Case Date | August 02, 2011 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit |
Argued: May 12, 2011
Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:09-cr-00421-CCB-1)
ARGUED:
ON BRIEF:
ORDER
The Court amends its, as follows: On page 12, second full paragraph, line 3 -- the word "second" is inserted before the word "prong."
On page 20, lines 7, 10, and 11 -- "(6)" is replaced with "(8)", "(8)" is replaced with "(9)", and "(9)" is replaced with "(10)".
OPINION
The United States appeals from an order of the district court granting the motion to suppress certain evidence filed by the defendant, Stephen Digiovanni. We affirm.
I
On July 28, 2009, at approximately 11:53:00 a.m., Trooper Christopher Conner of the Maryland State Police observed Digiovanni's car traveling northbound on Interstate 95 (I-95), in northeast Maryland, near the towns of North East and Perryville. In Trooper Conner's opinion, Digiovanni's car was traveling too close to the car in front of him, in violation of Maryland law. Consequently, Trooper Conner activated his patrol car's blue lights (which in turn activated his patrol car's video and recording equipment) and effectuated a stop of Digiovanni's car.
At approximately 11:53:39 a.m., Trooper Conner approached Digiovanni's car, now stopped on the right shoulder of the road, identified himself as a Maryland state trooper, and asked Digiovanni to provide his driver's license and the car's registration, explaining to Digiovanni that he was following the car in front of him "entirely too close." In response, Digiovanni, who was the sole occupant of the car, indicated that the car he was driving was a rental car, so he provided the rental contract, along with his Massachusetts driver's license. As Digiovanni handed over these items, Trooper Conner directed him to exit the car, which he did.1] Such direction occurred at approximately 11:54:09 a.m., or about thirty seconds after Trooper Conner first approached Digiovanni's car. According to Trooper Conner, he asked Digiovanni to exit the car for the purpose of issuing him a warning ticket and for the purpose of determining whether there was criminal activity afoot.2
While collecting Digiovanni's driver's license and the rental contract, Trooper Conner noticed two shirts hanging in the rear passenger compartment and a hygiene bag on the back seat. He also noticed the interior of the car was clean. At the suppression hearing, Trooper Conner testified that the hanging shirts suggested Digiovanni may be involved in drug trafficking activity, because, through his experience, non-drug traffickers traveling on vacation would have such items packed in a clothing bag. Trooper Conner also testified that the hygiene bag on the back seat was suggestive of drug trafficking activity, because there was no other visible luggage in the car. As for the clean condition of the interior of the car, Trooper Conner indicated this was suggestive of drug trafficking activity, because "[t]here was nothing in the vehicle indicating that [he was] living on the road, nonstop driving."
At the suppression hearing, Trooper Conner testified that the rental contract also made him suspicious of drug trafficking activity. The rental contract indicated that the car was rented at Fort Lauderdale International Airport the previous day and was to be dropped off at Logan International Airport in Boston, at a cost of $438. Trooper Conner testified that Digiovanni's one-way, $438 car rental was "implausible."
After Digiovanni exited the car, he walked to the rear of the car, positioning himself near the guardrail. Trooper Conner then retrieved his warning book from his patrol car and returned to where Digiovanni was standing. At this point, Trooper Conner asked numerous questions concerning Digiovanni's travel history and travel plans. All parties seem to acknowledge that perhaps three of these questions related to the justification for the stop, in that, based on his answers, Digiovanni may have offered an explanation for driving too close to the car in front of him. In response to this questioning, Digiovanni indicated that: (1) he was traveling from Florida, where he spent the weekend with family, to Boston, where he lived; (2) on his way to Boston, he was stopping at his sister's residence in New York to pick up "some paintings and whatnot"; and (3) he took the Amtrak Auto Train from Florida to Virginia.
At about 11:56:40, or a little more than three minutes into the stop, Trooper Conner turned his questioning to the subject of drug trafficking activity, because, in his opinion, he had reasonable suspicion that criminal activity was afoot. He asked Digiovanni if he had any luggage in the car and if everything in the car belonged to him. Digiovanni responded in the affirmative to both questions. After these two questions, Digiovanni said, "oh boy, " as he tossed the cigarette he was smoking over the guardrail. At the suppression hearing, Trooper Conner testified that he found this remark "extremely suspicious, " because "now he is saying oh boy in response to my questioning." Trooper Conner then asked Digiovanni what was the matter, to which Digiovanni replied, "[i]t's just so hot." Trooper Conner explained to Digiovanni that people smuggle drugs and guns up and down I-95, and that "a lot of good people . . . agree to take a box or something . . . [that] [t]hey really don't know what's in it." Trooper Conner told Digiovanni that he was not accusing him of anything, but that he "had a job to do out here." He asked Digiovanni if there was any marijuana in the car. Digiovanni replied, "[n]o sir. I never smoked marijuana in my life. It puts me to sleep."3] Trooper Conner asked Digiovanni if there was any cocaine or heroin in the car, and Digiovanni responded in the negative. Trooper Conner also asked Digiovanni if there was any methamphetamine in the car, and Digiovanni indicated that there was not. Trooper Conner followed up with, "[a]re you sure?, " to which Digiovanni replied, "I'm positive."
At the conclusion of approximately one minute and thirty-five seconds of questioning concerning drug trafficking activity, Trooper Conner turned his questioning to the subject of consent. Just before asking Digiovanni for consent to search the car, Trooper Conner told Digiovanni that he routinely searches cars "to make sure there's no drugs or guns" in them. In response to his request to search the car, Digiovanni replied, at 11:58:24 a.m., "[i]f you want to, that's not a problem."
For the next three minutes or so, Digiovanni attempted to open the trunk of the car to allow Trooper Conner to search it, but he could not open it. According to Trooper Conner, he found this "extremely suspicious, " because Digiovanni, at some earlier time, was able to load his luggage in the trunk. He also testified that, in his experience, drug traffickers often disable the mechanism for opening the trunk.
After Digiovanni was unsuccessful in opening the trunk, Trooper Conner resumed his earlier line of questioning concerning drug trafficking activity at about 12:01:41 p.m. He asked Digiovanni if he was sure there was no marijuana in the trunk of the car, to which Digiovanni said that he was sure there was not. In response, Trooper Conner observed that he had "heard people say that before and then" found drugs, so he asked Digiovanni if he was sure, and Digiovanni responded that he was "positive." Continuing this line of drug questioning, Trooper Conner asked, "[s]o if I bring my drug detection K-9, my partner and my drug detection K-9 up here, would there be any reason why the dog would alert to the vehicle?" Digiovanni replied, "[n]ot at all." Trooper Conner asked Digiovanni again if he was sure, and Digiovanni once again responded that he was "[p]ositive." This second inquiry concerning drug trafficking activity lasted about one minute.
Trooper Conner returned to his vehicle at about 12:02:37 p.m. Trooper Conner requested back up assistance, because he "believed" Digiovanni "was engaged in criminal activity." He then began the process of checking Digiovanni's driver's license, at 12:03:31 p.m., over ten minutes after Digiovanni was stopped. At approximately 12:07:22 p.m., Trooper Conner removed his hat, exited his patrol car, and approached Digiovanni. Although the driver's license check was not completed by this time, a dispatcher informed Trooper Conner that Digiovanni was not wanted on any outstanding warrants. Trooper Conner told Digiovanni he was "waiting on [the] license check, " adding that "things are looking good, " because he was not wanted on any warrants. At 12:08:15 p.m., Trooper Conner told Digiovanni he was "preparing" a warning ticket for him, adding that there was "no fine" and "no points." At 12:08:25 p.m., Trooper Conner returned to Digiovanni his driver's license and the rental contract, and issued him a warning ticket and a brochure explaining "what to expect on a traffic stop."4 At the same time, Trooper Conner said, "[h]ere you go, sir. You are free to go." Immediately (12:08:27 p.m.), Trooper Conner reminded Digiovanni that they "were talking, . . . were talking about drugs." He then observed that "we do have a bad problem out here, people smuggling drugs on the...
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