United States v. Palmer

• Decision Date: 21 April 2016
• Docket Number: No. 14–4736.,14–4736.
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Michael Jerome PALMER, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

820 F.3d 640

UNITED STATES of America, Plaintiff—Appellee

v.Michael Jerome PALMER, Defendant—Appellant.

No. 14–4736.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 10, 2015.

Decided: April 21, 2016.

ARGUED: James Orlando Broccoletti, Zoby, Broccoletti & Normile, PC, Norfolk, Virginia, for Appellant. Christopher John Catizone, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, Alexandria, Virginia, Darryl J. Mitchell, Assistant United States Attorney, Office of the United States Attorney, Norfolk, Virginia, for Appellee.

Before WILKINSON, KING, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge KING

wrote the opinion, in which Judge WILKINSON and Judge WYNN joined. Judge WYNN wrote a separate concurring opinion.

KING

, Circuit Judge:

Michael Jerome Palmer appeals the district court's denial of his motion to suppress drug and firearm evidence seized by police officers during a traffic stop in Chesapeake, Virginia. The court conducted an evidentiary hearing and, in early May 2014, rendered its ruling in favor of the government. As explained below, we are satisfied that the officers did not contravene the Fourth Amendment and thus affirm.

I.

A.

In April 2014, the federal grand jury in Norfolk, Virginia, indicted Palmer on two offenses: possession with intent to distribute crack cocaine, in contravention of 21 U.S.C. § 841(a)(1)

; and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Palmer moved to suppress the drug and firearm evidence underlying the charges, which Chesapeake officers had seized during the October 2013 traffic stop of a vehicle driven by Palmer. In May 2014, the district court denied Palmer's suppression motion. See United States v. Palmer, No. 2:14–cr–00031 (E.D.Va. May 5, 2014), ECF No. 35 (the “Opinion”). In June 2014, Palmer pleaded guilty to both offenses in the indictment, but reserved the right to appeal the suppression ruling. In September 2014, the court sentenced him to sixty-one months in prison. Palmer timely noted this appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.

B.

1.

Because the district court denied Palmer's motion to suppress, we recount the facts in the light most favorable to the government. See United States v. Watson, 703 F.3d 684, 689 (4th Cir.2013)

. On October 15, 2013, Officer Ring of the Chesapeake police was patrolling that city's Ipswich neighborhood. During his patrol, Ring stopped Palmer, who was driving a silver Nissan Altima, on Paramont Avenue. When Ring exited his patrol car and greeted Palmer through the driver-side window of the Nissan, he smelled an overwhelming odor of air freshener. He saw at least five air fresheners inside the car, some hanging in the passenger compartment and others plugged into the air-conditioning vents. Ring advised Palmer that he had been stopped because the Nissan's windows were too darkly tinted, in violation of state law, and also because the inspection sticker on the vehicle's front windshield appeared fraudulent. Ring then obtained Palmer's driver's license and the vehicle's registration card, and returned to his patrol car to make a database check.

From the driver's license and registration Officer Ring learned that Palmer listed a P.O. box as his address and that the Nissan was registered to a woman who was not present. Within minutes of beginning the database check, Ring also learned that Palmer was a suspected member of a gang called the Bounty Hunter Bloods, according to a “caution” notice issued by the nearby Norfolk Police Department. See Opinion 2. Ring advised his colleague, Officer Blount—who was also on the scene—of Palmer's purported gang affiliation, and asked Blount about the availability of a drug dog.

Officer Ring also sought information on Palmer from another database called LInX. Ring could not initially log into the LInX system because his former partner had changed the password. He eventually accessed LInX, however—about seven minutes into the traffic stop—by utilizing Officer Blount's login credentials. As Ring was logging into LInX and searching its database, he called about a drug dog. Ring relayed by radio the information that he had gathered: Palmer was nervous; there was an overwhelming odor of air freshener from the Nissan; there were at least five air fresheners in the car; Palmer's driver's license address was a P.O. box, as opposed to a street address; the Nissan was registered to someone other than the driver; and Palmer was a suspected member of the Bounty Hunter Bloods.

About eleven minutes into the traffic stop, Officer Ring identified Palmer in LInX. Ring learned that Palmer had a criminal record that included four arrests on drug charges plus an arrest for illegal possession of a firearm by a convicted felon. As a result, Ring radioed again about a drug dog, but was unable to confirm its availability. After completing his LInX search, Ring returned to the Nissan from his patrol car. Because he suspected the inspection sticker was fraudulent, Ring decided to verify the sticker's authenticity by looking at the back of it, which would enable him to determine whether it was legitimate. After asking Palmer to exit the Nissan, Ring leaned through the open driver-side door and examined the back of the inspection sticker. While reading the sticker—which he concluded was legitimate—Ring smelled marijuana.

Officer Ring immediately advised Palmer that he had grounds to search the Nissan. Because Ring wanted to be “110% sure” that the Nissan contained drugs before searching the vehicle, however, he again checked on the drug dog's availability. See Opinion 3. At that point—approximately seventeen minutes after the traffic stop had been initiated—Ring called Officer Duncan, who had a drug dog. About ten minutes later, Duncan arrived with the drug dog Boomer. Duncan walked Boomer around the Nissan, and the dog alerted twice.

Officers Ring and Duncan thereafter entered and searched the Nissan. They discovered a clear plastic bag containing crack cocaine in the center front console and a 40–caliber Smith & Wesson pistol wedged between the driver's seat and the console. As a result, Palmer was arrested. After the search and arrest, Ring measured the Nissan's window tint. Those measurements confirmed Ring's initial suspicion that the Nissan's windows were illegally tinted.¹

2.

On April 29, 2014, the district court conducted an evidentiary hearing on Palmer's suppression motion. During the hearing, Officer Ring—the prosecution's only witness—recounted his actions and observations during the traffic stop.

Officer Ring explained that, before the traffic stop, he knew of numerous citizen complaints to the authorities about the sale and use of illegal drugs in the Ipswich area. He also described his familiarity with Virginia's legal limits on window tinting and said that he “could barely see into the vehicle” that Palmer was driving. See J.A. 71–74.² Aside from the window tint, Ring suspected that the Nissan's inspection sticker was illegal, based on his experience and having stopped numerous vehicles with fraudulent stickers. Ring explained that he could not see the perforated portion that should be observable on a legitimate sticker. The back of a legitimate inspection sticker, he said, shows the perforated portion and contains information identifying the vehicle.

Although it is understandable for any person to be nervous when interacting with the police, Officer Ring said that Palmer “appeared to be more nervous than normal” during the traffic stop. See J.A. 79. Specifically, Ring observed that Palmer was “being overly cooperative but still very nervous in his demeanor.” Id. Regarding Palmer's liberal use of air fresheners, Ring explained that drug traffickers often use “heavy air freshening” to mask the “pungent odor” of marijuana. See id. at 80. Ring also explained that drug traffickers often operate vehicles registered to others. That is so because, when the police apprehend a drug trafficker, they tend not to seize the vehicle if it is registered to someone not present. Similarly, when Ring was asked—in light of the thousand-plus drug investigations in which he had participated—whether a P.O. box on a driver's license can be indicative of involvement in drug trafficking, he responded affirmatively.

Officer Ring also emphasized that he developed a concern for officer safety after learning of Palmer's suspected gang affiliation and prior criminal record. Ring stated that “[c]riminal street gangs are known for violence” and that his department had received “intelligence reports of threats against law enforcement specifically from the Blood gang.” See J.A. 86. Ring explained that Palmer's history of multiple drug arrests, as well as his arrest for possessing a firearm as a convicted felon, caused Ring to believe Palmer “would potentially still have a firearm on him.” Id.

According to Officer Ring, Palmer was initially hesitant to get out of the Nissan, and Palmer had thereafter lingered near the vehicle's front door until Ring requested that he move to the car's rear. Shortly thereafter, while Ring was inside the passenger compartment checking the inspection sticker, he “smell[ed] the marijuana very faintly” before his “sense of smell [was] overwhelmed with the air freshener.” See J.A. 90. Ring confirmed that Officer Blount smelled marijuana as well.

Officer Ring made at least two other observations that strengthened his suspicion of criminal activity. First, Palmer “had two cell phones on his hip.” See J.A. 93. According to Ring, “[i]t's common for people who distribute narcotics to have more than one cell phone in their possession.” Id. He said that those involved in drug trafficking often rely on one phone to store contacts and pictures while utilizing the other phone to arrange drug deals. Second, Ring believed that Palmer was seeking to divert suspicion from himself as they...