US v. Robert Driver, No. 12-4340 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4340 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ROBERT WILSON DRIVER, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:10-cr-00169-MOC-1) Submitted: January 18, 2013 Decided: March 4, 2013 Before SHEDD, DUNCAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Joshua B. Carpenter, Thomas N. Cochran, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Wilson Driver pled guilty to being a felon in possession of a firearm. His conditional guilty plea reserved the from right to an appeal suppress. On unreasonably detained traffic stop. appeal, he him the denial asserts beyond the of that his motion police permissible to officers scope of a We affirm. In considering the district court s denial of a motion to suppress, we review the district court s legal determinations de novo and its factual determinations for clear error. When the must district construe the court has evidence denied in a the suppression light most motion, favorable we to the United States v. Mubdi, 691 F.3d 334, 339 (4th Cir. Government. 2012), petition for cert. filed (Nov. 8 & 21, 2012). Temporary detention during an ordinary traffic stop is a limited seizure, and this court employs the Supreme Court s analysis for investigative detention used in Terry v. Ohio, 392 U.S. 1 conduct. (1968), to determine the limits of police United States v. Guijon Ortiz, 660 F.3d 757, 764 (4th Cir. 2011). Terry requires a dual inquiry: (1) whether the officer s actions were justified at their inception, and (2) whether the continued stop was sufficiently limited in scope and duration seizure. to satisfy the conditions of an investigative Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality 2 opinion). Regarding the first factor, Driver does not dispute that Officer Wright was justified in pulling the car over for erratic driving, and thus, there is no challenge to the conclusion that the initial stop of Driver s vehicle was proper. Turning to the second inquiry under Terry, we must determine whether Wright diligently pursue[d] the investigation of the justification for the stop. Guijon-Ortiz, 660 F.3d at 766 (internal quotation marks omitted). justifies detaining necessary to vehicle s request registration, run a a occupants driver s computer for license check, the and and time vehicle issue a United States v. Digiovanni, 650 F.3d 498, 507 (4th citation. Cir. the A lawful traffic stop 2011). While the officer may briefly inquire into unrelated matters, the officer may not definitively abandon[] the prosecution sustained of course justification. the of traffic stop and investigation Guijon-Ortiz, 660 F.3d embark[] on absent at another additional 766 (internal quotation marks omitted). To prolong a traffic stop beyond a de minimus delay, an officer must possess a justification for doing so other than the initial first place. Cir. 2008). traffic violation that prompted the stop in the United States v. Branch, 537 F.3d 328, 336 (4th This requires either the driver s consent or a reasonable suspicion that illegal activity is afoot. 3 Id. When determining whether reasonable suspicion exists, we look at the totality officer has of a the particularized, have and objective analyze basis whether for the suspecting United States v. Arvizu, 534 U.S. 266, 273 legal wrongdoing. (2002). circumstances When evaluating the legality of a Terry stop, courts been instructed approach[.] to take a commonsense and contextual Branch, 537 F.3d at 336. We conclude that reasonable suspicion of criminal activity existed at the moment (if not before) that Christopher Ellison arrived possession of on the scene marijuana. and Ellison was determined walked out to of the be in woods shortly after the car in which Driver was the passenger was stopped. frisked Herron, Driver s girlfriend, was driving. and Herron. stated that he was planning to meet Ellison was Driver and At this point in time, at most nine minutes after Driver s vehicle was stopped, the officers could briefly extend the stop for a period of time reasonably necessary to confirm or dispel their suspicions. 705, 710 (4th Cir. See United States v. Vaughan, 700 F.3d 2012). In the course of the next ten minutes, Officer Herrera separated Herron and Driver, frisked Driver, and obtained Herron s permission to search the vehicle, which we conclude were necessary and reasonable actions to take based on the officers reasonable suspicion of criminal activity. 4 During the period of time between the initial stop and the gathering of reasonable suspicion, we find that Wright diligently pursue[d] the investigation of the justification for Guijon-Ortiz, 660 F.3d at 766 (internal quotation the stop. marks and citation omitted). In those nine minutes, Wright s actions were consistent with the prosecution of a traffic stop: he secured the area, including dealing with the unexpected arrival of Ellison; he waited briefly for back-up; he obtained identification from Herron; and he ran identification and the vehicle s tags. record checks on the Based on the foregoing, neither the stop nor Wright s actions prior to the point where the stop was prolonged based on reasonable suspicion violated the Fourth Amendment. Driver encounter, argues abandoned investigation and investigation. any that Wright, pretense instead of conducted very a early in the traffic-infraction a robbery-suspect Driver points to the facts that Wright never requested the car rental agreement, that Wright refused to tell Driver and Herron why they were being stopped, and that Herrera was not even aware that a traffic violation was alleged when he sought Herron s permission to search. once Wright should have finished checking ended. Because As such, Driver contends, Herron s this 5 information, happened prior to the stop seeking consent from Herron, Driver argues that the continued seizure was improper. However, the appropriate inquiry is whether Wright completed his traffic-infraction investigation prior to the time the officers activity was obtained afoot. reasonable If the suspicion that traffic-infraction criminal investigation ended prior to the establishment of reasonable suspicion, Herron and Driver should have been sent on their way. Once the officers had reasonable suspicion, however, they were justified in prolonging the stop to investigate. We conclude that the officers had this reasonable suspicion at a point in time when Wright was either still investigating the traffic violation or had just completed it. Thus, there was no time during Driver s detention officers when investigating the the traffic were violation or not either properly properly investigating their reasonable suspicion of criminal activity. Driver also argues that the officers did reasonable suspicion that criminal activity was afoot. not have Driver contends that Ellison was unarmed and cooperative and that even the officers did not believe that Herron or Driver were involved with the marijuana found on Ellison. Driver, the insufficient relevant to show factors, reasonable even taken suspicion planning to commit a burglary or robbery. 6 Therefore, according to together, that Driver are was Based upon our review of the record, when the stop was prolonged, officers knew that (1) Driver was out past his probation curfew; (2) Driver was in a pitch black neighborhood he did not ordinarily frequent and in which he had no known associates; (3) Driver was a suspect in two recent robberies based on vehicle the and physical Driver s description criminal of the record; assailant (4) Driver s and his criminal history included robbery and breaking-and-entering convictions; (5) Driver was neighborhood far with from no home in upper-middle-class (6) lighting; an on the way to the neighborhood, the driver of the car had driven recklessly and evasively; street (7) when the car Wright s initially marked drove police off car down a approached; dead end and (8) almost immediately after the car was stopped, Ellison appeared from the woods, carrying marijuana, and explaining that he was there to meet Driver and Herron. factors might be consistent While most of these individual with innocent behavior, these circumstances, viewed in their totality, could give rise to reasonable suspicion that Driver and Herron had driven to this neighborhood burglary. to meet Ellison and commit a robbery or United States v. Mason, 628 F.3d 123, 129 (4th Cir. 2010) (internal quotation marks omitted). Since context does matter and respect for the training and expertise of officers must be given due weight, we 7 conclude that the officers possessed specific and articulable facts sufficient to justify prolonging the stop. See Branch, 537 F.3d at 336; see also United States v. Clarkson, 551 F.3d 1196, 1202 (10th Cir. 2009) (holding that time of night and a match of even a general suspect description are relevant factors in determining reasonable suspicion); United States v. Padilla, 548 F.3d 179, 188 (2d Cir. 2008) (noting that it is proper to consider officers experience and familiarity with a particular area and its inhabitants, as well as the fact that Defendant chose an unlit route). Accordingly, Herron s consent to the search of the car was valid. We therefore affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 8