United States v. Whitney , 391 F. App'x 277 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4858
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COREY JERMINE WHITNEY,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00108-FL-1)
Submitted: July 23, 2010 Decided: August 17, 2010
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, J. Gaston B. Williams, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Corey Jermine Whitney pleaded guilty to a three-count
indictment charging him with drug and gun-related offenses,
reserving his right to appeal the denial of his motion to
suppress. On appeal, Whitney argues that the district court
erred in failing to exclude evidence obtained from Whitney
during a traffic stop and, for the following reasons, we affirm.
I.
On appeal, Whitney contests the denial of his
suppression motion. We review the district court’s factual
findings for clear error and its legal conclusions de novo.
United States v. Perkins, 363 F.3d 317, 320 (4th Cir. 2004).
And, “[b]ecause the district court denied the motion to
suppress, we construe the evidence in the light most favorable
to the government.” Id.The evidence in this case showed that, on September
14, 2007, Agent John Canady and Lieutenant Angela Bryan of the
Johnston County, North Carolina, Sheriff’s Department were
traveling in an unmarked vehicle on Highway 42 East between the
towns of Clayton and Wilson. Shortly after noon, Agent Canady
passed a black Cadillac Escalade driving the opposite direction;
when Agent Canady looked back at the Escalade in his side-view
mirror, he saw a dark spot where the license plate should be and
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could not tell if the vehicle had a proper license plate. Agent
Canady turned around his vehicle and, after several minutes,
caught up with the Escalade. From that vantage point, Agent
Canady saw that the Escalade did, in fact, have a license plate.
Agent Canady called in the license plate and learned that it
belonged to a 2001 Lexus. Agent Canady also observed that the
license plate was covered by a plastic cover. At that point,
Agent Canady activated his blue lights and siren and effected a
traffic stop of the Escalade.
Agent Canady, who was in plainclothes, approached the
vehicle and asked the driver, Corey Jermine Whitney, for his
identification and vehicle registration. Whitney provided Agent
Canady with appropriate paperwork, showing that he had purchased
the vehicle in August 2007 and had legally transferred the
license plate from his wife’s 2001 Lexus to the Escalade. Agent
Canady took Whitney’s license back to the police vehicle to
check its validity and any outstanding warrants. Thereafter,
Agent Canady returned Whitney’s license but, as was his
practice, asked Whitney to step out of the vehicle so that he
could show Whitney the tinted license plate cover that Whitney
would need to remove when he returned home.
While they were at the back of the Escalade, Agent
Canady asked if Whitney had any weapons on his person. Whitney
responded that he did not and consented to a search of his
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person. Agent Canady felt a large bulge in both of Whitney’s
front pants pockets, and Whitney revealed that he was carrying
roughly $3000 in cash in his pockets. Agent Canady observed
that Whitney was nervous and could see him breathing hard.
Agent Canady also noticed the veins in Whitney’s neck pulsating
slightly. At that point, Lieutenant Bryan asked for consent to
search the Escalade. Whitney refused consent and, thereafter,
the officers requested a canine unit be dispatched to the scene.
The canine unit arrived several minutes later; during a sweep of
the Escalade, the canine alerted on the driver’s and passenger’s
sides of the vehicle. A search of those areas revealed a
plastic bag containing crack cocaine and a clear plastic bag
containing marijuana in one compartment of the center console.
In another compartment in the center console, Agent Canady found
a Rossi .357 caliber handgun and a purple Crown Royal bag
containing powder cocaine, marijuana, and a digital scale.
Thereafter, a federal grand jury in the Eastern
District of North Carolina indicted Whitney, charging him with
possession of a firearm after having been convicted of a crime
punishable by imprisonment for a term exceeding one year, in
violation of 18 U.S.C. §§ 922(g)(1) and 924 (2006); possession
with intent to distribute more than five grams of cocaine base
and cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006); and
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possession of a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c) (2006).
Whitney filed a motion to suppress the evidence
obtained during the traffic stop and, following an evidentiary
hearing, a magistrate judge issued a written Report and
Recommendation that recommended denying the motion to suppress.
In reaching this recommendation, the magistrate judge first
concluded that the traffic stop ended when Agent Canady returned
Whitney’s license, even though he then asked Whitney to exit the
vehicle. The magistrate judge further found that Whitney was
re-seized when the canine unit was called but, at that point,
Agent Canady had reasonable suspicion to seize Whitney because
of the $3000 in his pockets and his nervous demeanor.
Whitney filed timely objections to the magistrate
judge’s Report and Recommendation and, following a de novo
review, the district court adopted the Report. Whitney then
entered into a conditional guilty plea pursuant to Federal Rule
of Criminal Procedure 11(a)(2), pleading guilty to the
indictment while reserving the right to appeal the denial of the
suppression motion. The district court ultimately sentenced
Whitney to 120 months' imprisonment, and Whitney noted a timely
appeal.
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II.
On appeal, Whitney makes two separate arguments.
First, Whitney contends that Agent Canady illegally prolonged
the stop by returning Whitney’s identification but then
requesting that he exit the vehicle to look at the license
plate. According to Whitney, at the time Agent Canady decided
to return Whitney’s license and registration, he did not possess
the requisite reasonable suspicion to prolong their encounter
and, because Whitney was told to exit the car, the encounter was
not consensual. In the alternative, Whitney argues that, even
assuming he consented to exiting the car and the search of his
person, at the time Whitney refused consent to the search of his
vehicle, Agent Canady did not possess reasonable suspicion to
detain him until the drug dog arrived.
Following the Supreme Court's decision in Terry v.
Ohio, 392 U.S. 1 (1968), “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. Foreman, 369 F.3d 776,
781 (4th Cir. 2004), without running afoul of the Fourth
Amendment. “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.”
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Id. The Supreme Court has held that a drug-dog sniff is not a
“search” as that term is used in the Fourth Amendment. United
States v. Place, 462 U.S. 696, 706-07 (1983). In order to
perform the sniff, however, “there must be a seizure of the
vehicle and, therefore, the person, requiring either consent to
be detained or reasonable suspicion.” Foreman, 369 F.3d at 781.
Turning to Whitney’s first argument, we agree with the
district court that the initial traffic stop ended when Agent
Canady returned Whitney’s license. Under Florida v. Bostick,
501 U.S. 429 (1991), a police/citizen encounter is not
consensual and triggers Fourth Amendment scrutiny if “the police
conduct would have communicated to a reasonable person that the
person was not free to decline the officers’ requests or
otherwise terminate the encounter.” Id. at 439. This inquiry
is “an objective analysis of the totality of the circumstances.”
United States v. Meikle, 407 F.3d 670, 672 (4th Cir. 2005).
In Meikle, we noted that “we have repeatedly found to
be consensual encounters” traffic stops in which the
individual’s license and registration had been returned. Id. at
673. For instance, in Meikle, the officer had returned Meikle’s
papers and shaken his hand, and Meikle, who was standing by the
police car, began walking back to his vehicle. The officer then
asked if they could speak again, and Meikle said yes.
Eventually, Meikle consented to a search of his vehicle,
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revealing three kilograms of heroin. Id. at 671-72. In finding
the search “purely consensual,” this Court noted that Meikle
“understood that he was free to leave,” in part because “[t]he
officer had . . . returned all of Meikle’s papers.” Id. at 673-
74. See also United States v. Farrior, 535 F.3d 210, 219 (4th
Cir. 2008) (noting that the act of returning a license and
registration “strongly indicates that the encounter was
consensual and that no seizure occurred within the meaning of
the Fourth Amendment”); United States v. Rusher, 966 F.2d 868,
872 (4th Cir. 1992) (upholding a search as consensual when the
officer issued a warning, returned Rusher’s driver’s license and
informed him that he was “free to go” before seeking consent to
search his vehicle, even though driver was seated in the
officer’s patrol car at the time his license was returned and
the questioning began).
Likewise, in United States v. Sullivan, 138 F.3d 126,
129 (4th Cir. 1998), the officer stopped Sullivan for driving
without a front license plate. During the stop, Sullivan
admitting to having an unpaid ticket; after attempting to
confirm this statement, the officer eventually returned to
Sullivan’s car, handed back his license and registration, and
informed him to replace the license plate and take care of the
unpaid ticket. Id. at 129. The officer continued to believe
that “something else [was] wrong,” and, after returning
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Sullivan’s papers, began asking him if he had anything illegal
in the vehicle. Id. Sullivan started acting nervous, and the
officer continued to repeat the question six times for roughly
one minute until Sullivan finally replied that he had a gun.
Id. Reversing the district court, we found the encounter
consensual. Id. at 133-34. In so concluding, this Court relied
on the fact that Sullivan “remained in his own car throughout
the dialogue,” and that the officer had returned Sullivan’s
license and registration, “thus ending the traffic stop and
affording Sullivan the right to depart.” Id. at 133. That
Sullivan had not been told he was free to go “alone [was] not
dispositive,” particularly because Sullivan was not coerced or
physically touched or threatened during the encounter. Id. at
133-34.
In light of this consistent precedent, the district
court did not err in concluding that Whitney consented to
further questioning at the end of the traffic stop. First,
Whitney’s license and registration were returned to him, a
significant indication that he was free to go. Moreover, there
is no indication that Agent Canady threatened or made a show of
authority to prompt Whitney to exit the car. And, while Whitney
was asked to exit his vehicle, in Meikle and Rusher, we found
similar encounters to be consensual even though the drivers were
not in their cars at the time further questioning commenced. In
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sum, the totality of the circumstances indicates that Whitney
consented to exiting his car and continuing his conversation
with Agent Canady after Agent Canady concluded the traffic stop.
In the alternative, Whitney argues that, once he
refused consent to search his car, Agent Canady lacked
reasonable suspicion to detain Whitney until a drug dog arrived
on the scene. In rejecting this argument, the district court
concluded that the large amount of cash in Whitney’s pockets, in
combination with his nervous behavior, created reasonable
articulable suspicion, and we agree.
Under the Terry standard, an officer must have
“reasonable suspicion that criminal activity is afoot” to
perform a brief investigatory stop. Foreman, 369 F.3d at 781.
This standard “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.” Id. Reasonable suspicion
“is a less demanding standard than probable cause and requires a
showing considerably less than preponderance of the evidence.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
We have previously indicated that a motorist’s extreme
nervousness could help provide reasonable suspicion. See
Foreman, 369 F.3d at 785 (citing United States v. Lebrun, 261
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F.3d 731, 734 (8th Cir. 2001)). In addition, courts have found
that carrying large sums of cash can create reasonable
suspicion. See, e.g., United States v. Chhien, 266 F.3d 1, 8-9
(1st Cir. 2001) (concluding that discovery of $2000 in cash
during traffic stop supported determination of reasonable
suspicion and justified a brief period of further detention);
Conrod v. Davis, 120 F.3d 92, 97 (8th Cir. 1997) (concluding
that discovery of $6000 cash in individual’s pocket and $4000 in
suitcase furnished reasonable suspicion).
Accordingly, given Whitney’s nervous demeanor and the
large amount of cash found in his pockets, Agent Canady
possessed sufficient reasonable suspicion to detain Whitney for
a short period until the canine unit arrived.
III.
For the foregoing reasons, the district court's
judgment is affirmed. 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
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