United States v. Herbert Green

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4879
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HERBERT GREEN,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:11-cr-00057-GEC-1)
Argued: October 31, 2013 Decided: January 17, 2014
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the opinion,
in which Judge Gregory and Judge Keenan joined.
ARGUED: Randy Virlin Cargill, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. Thomas Ernest
Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee. ON BRIEF: Larry W. Shelton, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, Ashley B. Neese, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia; Mythili
Raman, Acting Assistant Attorney General, Denis J. McInerney,
Acting Deputy Assistant Attorney General, Criminal Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
2
SHEDD, Circuit Judge:
A federal grand jury indicted Herbert Green on one count of
possession with intent to distribute 500 grams or more of a
mixture or substance containing cocaine, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B). Before trial, Green moved
twice to suppress the cocaine, arguing that the police seized it
in violation of the Fourth Amendment. The district court denied
both motions, and Green entered a conditional plea of guilty to
the charge against him, preserving the right to appeal the
district court’s denial of his suppression motions based on the
scope and duration of the stop and the reliability of the drug-
detection dog. The district court sentenced Green to 200 months
in prison and 5 years of supervised release. For the reasons
stated below, we affirm the district court’s denial of Green’s
motions to suppress.
I.
In reviewing the denial of a motion to suppress, we review
the district court’s factual findings for clear error and its
legal conclusions de novo. United States v. Black, 707 F.3d 531,
537 (4th Cir. 2013). We construe the evidence in the light most
favorable to the government, as the prevailing party below. Id.
at 534. The district court found the following facts, which the
parties do not contest on appeal.
3
On the morning of March 17, 2011, Virginia State Police
Trooper Daryl Johnson executed a traffic stop of Green’s vehicle
because the windows appeared to be excessively tinted and the
license plate was partially obscured. Before activating his
patrol car’s blue lights at approximately 10:07:58, Trooper
Johnson contacted Trooper Brian Dillon, who was driving a
separate patrol car, and notified him of his location in case he
needed assistance.
At 10:08:35, Trooper Johnson approached Green’s vehicle and
asked him for his driver’s license and vehicle registration.
Trooper Johnson explained that Green’s license plate was
partially obscured, in violation of Virginia law. He also asked
Green about the window tint; Green responded that the windows
were already tinted when he bought the car. Trooper Johnson
later testified that Green appeared to be excessively nervous
and that the vehicle contained a strong odor of air freshener
and had a “lived-in look.”
At 10:10:30, Trooper Johnson asked Green to accompany him
to the patrol car so he could check Green’s license and
registration on his computer. Upon exiting the vehicle, Green
mentioned that his lawyer had advised him not to get out of his
car during traffic stops. Once inside the patrol car, Trooper
Johnson asked Green why he had a lawyer, and Green responded
that he was in the entertainment business. During this
4
conversation, Trooper Johnson began checking Green’s license and
registration.
At 10:11:20, Trooper Johnson radioed Trooper Dillon, who
had parked some distance behind Trooper Johnson, and told him to
“come on up.” Trooper Johnson then asked Green about his
itinerary. Green responded that he and his passenger were
driving to Pittsburgh from Atlanta, where they had been
performing shows. At 10:11:35, Trooper Johnson reiterated the
reasons for the traffic stop.
At 10:13, Trooper Johnson’s computer program responded to
his inquiry, notifying him of a concealed weapons permit in
Green’s name and a protective order against him, both of which
alerted Trooper Johnson to potential officer safety issues. At
10:14, dispatch told Trooper Johnson that the concealed weapons
permit did not belong to Green but confirmed that Green had a
protective order against him. Trooper Johnson and Green had a
brief exchange about the protective order and the underlying
facts, and Trooper Johnson requested additional information from
dispatch. He again asked Green about his travel plans and the
identity of his passenger. Green explained that the passenger
was his recording artist and that they had been in Atlanta for
eight days.
Between 10:15 and 10:16, Trooper Johnson told Green that he
was going to check the tint on the vehicle's windows. Upon
5
exiting his patrol car, Trooper Johnson spoke with Trooper
Dillon, who had arrived on the scene. At 10:16, Trooper Johnson
approached the front passenger window of Green’s vehicle and
spoke with the passenger. The passenger informed Trooper Johnson
that he had been in Atlanta with Green for two weeks, where he
performed as an R&B singer. During this conversation, Trooper
Johnson measured the window tint and found that it violated
Virginia law. At 10:17, Trooper Johnson walked back to his
patrol car and told Green that the window tint was illegal.
Trooper Johnson then asked Green whether there were any illegal
drugs in the vehicle. Green stated that there were not, but
Trooper Johnson testified that Green began breathing very
rapidly and appeared to be uncomfortable when Trooper Johnson
questioned him about illegal drugs. At 10:17:49, Trooper Johnson
requested a check of Green’s criminal history from dispatch.
At 10:18, Trooper Johnson asked Green if he had ever been
arrested. Green responded that he had “beat[en] up a few
people,” and that he was arrested for narcotics in the 1980s.
Trooper Johnson also asked how long Green had lived in
Pittsburgh. At 10:18:46, Trooper Johnson reiterated that the
window tint was illegal.
At 10:19, Trooper Johnson left his patrol car to speak with
Trooper Dillon, telling him that Green had “lawyered up” before
getting out of his car, that Green was “dirty,” and that Green
6
had a “history” but would not tell Trooper Johnson about it. He
stated that he was checking Green’s criminal history and asked
Trooper Dillon to perform a free-air sniff of Green’s vehicle
using Trooper Dillon’s drug-detection dog, Bono.
At 10:19:42, Trooper Johnson told Green that Trooper Dillon
was going to conduct an exterior sweep of Green’s vehicle with
the dog and that he was waiting to hear back from dispatch about
the protective order. Bono alerted to the vehicle’s rear
passenger panel and completed the free-air sniff at 10:21. When
Trooper Johnson told Green that Bono had detected the presence
of narcotics, Green stated that he did not want anyone to search
the vehicle. Trooper Johnson explained that Bono’s alert gave
the officers probable cause for a search.
At 10:21:55, just after Bono completed the sniff, dispatch
informed Trooper Johnson that Green’s criminal history raised
multiple officer safety issues and included charges for
homicide, carrying concealed weapons, robbery, kidnapping, and
terroristic threats. At 10:27:05, upon the arrival of a third
officer, the troopers began searching the vehicle. They
discovered a duffle bag containing over one kilogram of cocaine
and approximately $7,000 in cash.
After a grand jury returned an indictment charging Green
with possession with intent to distribute 500 grams or more of
cocaine, Green moved to suppress the evidence found in the
7
vehicle, arguing that the traffic stop was unreasonable in its
scope and duration and that the delay was not justified by
reasonable suspicion of criminal activity. The district court
denied Green’s motion, holding that Trooper Johnson did not
unreasonably or unnecessarily prolong Green’s detention and that
Green was lawfully seized for the traffic violation at the time
the free-air sniff occurred. United States v. Green, 2011 WL
6439387, at *7 (W.D. Va. Dec. 21, 2011).
Green then filed a second motion to suppress, arguing that
Bono’s field performance was so poor that his positive alert did
not provide probable cause to search the vehicle. The district
court denied this motion, concluding that “the record is
sufficient to establish Bono’s reliability and, thus, that his
positive alert provided probable cause to search the defendant’s
vehicle.” United States v. Green, 2012 WL 2924055, at *5 (W.D.
Va. June 28, 2012). On appeal, Green argues that the district
court erred in denying both motions to suppress.
II.
Green argues that the district court erred in denying his
first motion to suppress because the scope and duration of the
detention were unreasonable, in violation of his Fourth
Amendment rights. For the following reasons, we reject this
contention.
8
The Fourth Amendment guarantees “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” The stop of a
vehicle by the police amounts to a seizure within the meaning of
the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-
10 (1996).
A lawful traffic stop “begins when a vehicle is pulled over
for investigation of a traffic violation” and ends “when the
police have no further need to control the scene, and inform the
driver and passengers they are free to leave.” Arizona v.
Johnson, 555 U.S. 323, 333 (2009). Because an ordinary traffic
stop is more analogous to an investigative detention than a
custodial arrest, we analyze the propriety of a traffic stop
using the dual inquiry announced in the Supreme Court’s holding
in Terry v. Ohio, 392 U.S. 1, 19-20 (1968). United States v.
Rusher, 966 F.2d 868, 875 (4th Cir. 1992). Accordingly, we
consider first whether the officer’s actions were justified at
their inception and second whether his subsequent actions were
reasonably related in scope to the circumstances that justified
the stop. Id. (quoting Terry, 392 U.S. at 20).
Because Green does not contest that the traffic stop in
this case was justified at its inception, we proceed directly to
9
the second prong of the Terry analysis. 1 Green argues that the
14-minute period of detention between the initial stop and the
alert by the drug-detection dog was not reasonably related in
scope to the circumstances that justified the stop. Green cites
to our decision in United States v. Digiovanni, 650 F.3d 498
(4th Cir. 2011), and argues that the scope and duration of the
detention were unreasonable because Trooper Johnson used the
traffic stop to embark on an unlawful drug investigation.
In Digiovanni, a police officer initiated a traffic stop
after observing Digiovanni traveling too close to the car in
front of him, asked Digiovanni for his driver’s license and
vehicle registration, and then “embarked on a sustained
investigation into the presence of drugs, instead of either
completing the warning ticket or beginning the driver’s license
1
Because “[o]bserving a traffic violation provides
sufficient justification for a police officer to detain the
offending vehicle for as long as it takes to perform the
traditional incidents of a routine traffic stop,” United States
v. Branch, 537 F.3d 328, 335 (4th Cir. 2008), there is ample
support for the conclusion that this stop was justified at its
inception. Trooper Johnson testified that he first observed the
tinted windows on Green’s vehicle, which appeared to violate
Virginia law. He further explained that he noticed that the
license plate was partially obscured when he began to call the
plate into dispatch, but the illegally tinted windows alone were
sufficient to justify the stop. See Va. Code Ann. § 46.2-
1052(C)(2) (“No sun-shading or tinting films may be applied or
affixed to the front side windows of any motor vehicle operated
on the highways of this Commonwealth that reduce total light
transmittance of such window to less than 50 percent[.]”).
10
check.” Id. at 501-02, 509-10. The officer did not initiate the
driver’s license check until after he questioned Digiovanni for
approximately 10 minutes and returned to his patrol car to radio
for back-up assistance. Id. at 510. Approximately 15 minutes
into the stop, the officer returned Digiovanni’s license and
issued him a warning ticket. Id. The officer then immediately
returned to the subject of drugs and requested to search
Digiovanni’s vehicle. Id. at 504, 510. We held that the search
violated Digiovanni’s Fourth Amendment rights because the record
made it “clear that at just about every turn [the officer] was
conducting a drug investigation instead of a traffic infraction
investigation. Indeed, the bulk of the encounter between [the
officer] and Digiovanni involved a drug investigation . . . .”
Id. at 510.
As we explained in Digiovanni, a traffic stop must be
limited in both scope and duration. Id. at 507. With regard to
scope, the officer’s investigative methods should be “the least
intrusive means reasonably available to verify or dispel the
officer’s suspicion in a short period of time.” Id. However,
questions unrelated to the purpose of the traffic stop do not
necessarily run afoul of the scope component of the Terry
inquiry. See id.
With regard to duration, we determine “whether the police
diligently pursued a means of investigation that was likely to
11
confirm or dispel their suspicions quickly, during which time it
was necessary to detain the defendant.” Id. (internal quotation
marks omitted). Although the maximum acceptable length of a
routine traffic stop cannot be stated with mathematical
precision, Branch, 537 F.3d at 336, a stop may become unlawful
if “it is prolonged beyond the time reasonably required to
complete [its] mission,” Illinois v. Caballes, 543 U.S. 405, 407
(2005). The reasonableness of a stop turns on whether the
officer’s overall course of action, “viewed objectively and in
its totality, is reasonably directed toward the proper ends of
the stop.” Digiovanni, 650 F.3d at 508.
During a routine traffic stop, an officer “may request a
driver’s license and vehicle registration, run a computer check,
and issue a citation.” Rusher, 966 F.2d at 876. An officer may
also conduct an exterior dog sniff of the vehicle, as long as it
is "performed within the time reasonably required to issue a
traffic citation." Branch, 537 F.3d at 335 (internal quotation
marks omitted). To prolong a traffic stop beyond the scope of a
routine stop, the officer must have either the driver’s consent
or a reasonable suspicion of illegal activity. Id. at 336.
However, where a delay in conducting a dog sniff can be
characterized as de minimis under the totality of the
circumstances, the delay does not violate the defendant’s Fourth
12
Amendment rights. See United States v. Farrior, 535 F.3d 210,
220 (4th Cir. 2008).
Applying this framework, we conclude that the district
court correctly held that the traffic stop at issue was
reasonable in scope and duration and that Green was lawfully
seized for a traffic violation when the dog sniff occurred.
After initiating the traffic stop, Trooper Johnson promptly
informed Green that it appeared his window tint and partially
obscured license plate violated Virginia law, and he asked Green
for his driver’s license and vehicle registration. Trooper
Johnson asked Green to accompany him to the patrol car and
immediately began verifying the documents on his computer and
through his dispatcher. While waiting approximately three
minutes for a response, Trooper Johnson addressed the grounds
for the traffic stop and questioned Green about his travel plans
and his lawyer.
When dispatch informed Trooper Johnson that Green had a
protective order against him, Trooper Johnson requested
additional information because, as he explained at the
suppression hearing, the existence of a protective order raises
officer safety concerns. 2 Trooper Johnson checked the window tint
2
Trooper Johnson’s computer program also informed him that
Green had a concealed weapons permit, but dispatch promptly
confirmed that the permit did not belong to Green. Although
(Continued)
13
on Green’s vehicle and confirmed that it violated Virginia law
while he waited for a response about the protective order.
Trooper Johnson did not immediately issue a citation, but rather
called dispatch and requested a check of Green’s criminal
history. Trooper Johnson then waited approximately four minutes
for a response. During that time, Bono completed the exterior
sniff of Green’s vehicle.
Trooper Johnson’s brief questioning about matters unrelated
to the traffic violations did not run afoul of the scope
component of Terry’s second prong. See Johnson, 555 U.S. at 333
(“An officer’s inquiries into matters unrelated to the
justification for the traffic stop . . . do not convert the
encounter into something other than a lawful seizure, so long as
those inquiries do not measurably extend the duration of the
stop.”); Digiovanni, 650 F.3d at 507. Although the criminal
history check extended the duration of the traffic stop, the
totality of the circumstances demonstrates that Trooper Johnson
diligently pursued the purposes of the stop. See Digiovanni, 650
F.3d at 508.
Trooper Johnson requested the criminal history check out of
concern for officer safety. See id. (“The diligence calculus
concealed weapons permits do signal officer safety concerns, the
computer’s initial alert does not factor into our analysis.
14
includes an examination of . . . whether the unrelated
questioning was conducted out of concern for officer safety.”).
He did not learn that Green had a protective order against him
until after he made the initial inquiry into Green’s driver’s
license and vehicle registration, and he requested the criminal
history check before receiving additional information about the
protective order. Further, Trooper Johnson testified that
Green’s demeanor and behavior throughout the traffic stop in
conjunction with the protective order raised concerns about
officer safety. Given these facts, Trooper Johnson did not act
unreasonably or unnecessarily prolong Green’s detention.
Finally, the criminal history check added just four minutes
to the traffic stop. Under the circumstances, we are convinced
that such a delay, at most, amounted to a de minimis intrusion
on Green’s liberty interest and thus did not constitute a
violation of his Fourth Amendment rights. See Farrior, 535 F.3d
at 220. We therefore hold that the district court correctly
denied Green’s first suppression motion.
III.
Green also argues that the district court erred in denying
his second suppression motion because Bono’s track record in the
field is not sufficiently reliable for his positive alert to
provide probable cause to search Green’s vehicle. For the
following reasons, we reject this contention.
15
Probable cause is “a flexible, common-sense standard.”
Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion). It
requires only that “the facts available to the officer would
warrant a man of reasonable caution in the belief that certain
items may be contraband . . . or useful as evidence of a crime;
it does not demand any showing that such a belief be correct or
more likely true than false.” Id. (internal quotation marks and
citations omitted). Probable cause to conduct a search based on
a drug-detection dog’s alert exists when the totality of the
circumstances, “viewed through the lens of common sense, would
make a reasonably prudent person think that a search would
reveal contraband or evidence of a crime.” Florida v. Harris,
133 S. Ct. 1050, 1058 (2013).
After the district court denied Green’s second suppression
motion, the Supreme Court in Harris addressed how courts should
determine whether an alert from a drug-detection dog provides
probable cause to search a vehicle when the defendant has
challenged the dog’s reliability. 133 S. Ct. at 1053. In that
case, Harris moved to suppress evidence found in his truck
during a search based on a drug-detection dog’s alert, arguing
that the dog was unreliable and thus his alert did not give the
officer probable cause. Id. at 1054. Harris argued that the
alert by the dog was unreliable because on both occasions that
the dog alerted on his vehicle, the officers were unable to find
16
any substances that the dog was trained to detect. Id. at 1058-
59. The Court rejected Harris’ contention, holding that
“evidence of a dog’s satisfactory performance in a certification
or training program can itself provide sufficient reason to
trust his alert,” and based on this evidence, “a court can
presume (subject to any conflicting evidence offered) that the
dog’s alert provides probable cause to search.” Id. at 1057. The
Court explained:
If a dog on patrol fails to alert to a car containing
drugs, the mistake usually will go undetected because
the officer will not initiate a search. Field data
thus may not capture a dog’s false negatives.
Conversely (and more relevant here), if the dog alerts
to a car in which the officer finds no narcotics, the
dog may not have made a mistake at all. The dog may
have detected substances that were too well hidden or
present in quantities too small for the officer to
locate. Or the dog may have smelled the residual odor
of drugs previously in the vehicle or on the driver’s
person. Field data thus may markedly overstate a dog’s
real false positives. By contrast, those inaccuracies—
in either direction—do not taint records of a dog’s
performance in standard training and certification
settings. There, the designers of an assessment know
where drugs are hidden and where they are not—and so
where a dog should alert and where he should not.
Id. at 1056-57. Based on this reasoning, the Court held that “in
most cases,” a drug-detection dog’s field performance has
“relatively limited import” and that the better measure of a
dog’s reliability comes from his performance in controlled
testing environments. Id.
17
The Court explained that a defendant may challenge the
government’s evidence of a dog’s reliability by, for example,
contesting the adequacy of the drug-detection certification or
training program or examining how the dog or handler performed
in the program. Id. at 1057. The Court also stated that evidence
of the dog’s or handler’s previous performance in the field “may
sometimes be relevant,” but it warned against “inferring too
much from the failure of a dog’s alert to lead to drugs.” Id. at
1057, 1059. In Harris, the State introduced substantial evidence
of the drug-detection dog’s training and his proficiency in
finding drugs. Id. at 1058. Harris responded only that the dog’s
field performance showed that his alert was unreliable. See id.
The Court held that because the State had “produced proof from
controlled settings that a dog performs reliably in detecting
drugs,” and Harris had failed to undermine that showing by
challenging some aspect of the dog’s training, the officer had
probable cause to search the defendant’s truck. Id. at 1058-59.
Applying this framework, we conclude that the district
court correctly held that Bono was sufficiently reliable and
that his positive alert provided probable cause for the search
of Green’s vehicle. Green presented Bono’s field performance
reports, which showed that drugs were found only 22 of the 85
times that Bono had alerted in the field before his alert on
Green’s vehicle. He argues that, based on this success rate in
18
the field of 25.88%, no reasonably prudent person would think
that a search based on Bono’s alert would reveal contraband or
evidence of a crime. Although the field performance reports show
that Bono’s alert in an uncontrolled environment does not always
result in the discovery of drugs, the district court found that
Bono’s success rate rises from 25.88 to 43% after factoring in
the cases in which Bono’s alert did not lead to the discovery of
drugs but officers found direct evidence that drugs or drug
users had recently been in the vehicle. 3 Moreover, the district
court correctly determined that, when taking Bono’s training and
certification record into account, the record is sufficient to
establish Bono’s reliability.
As in Harris, the government presented extensive evidence
of Bono’s reliable performance in training and certification
programs, and Green has not introduced any evidence to undermine
3
Green argues that these false positives should not be
considered because the probable cause inquiry focuses on the
presence of drugs, not the mere odor of drugs. He contends that
when a drug-detection dog alerts and no drugs are found, that
dog has not predicted the presence of drugs. But Green
misapprehends the concept of probable cause. The calculus of
probable cause deals with the possibility, not the guarantee, of
criminal conduct. The presence of drug odors is certainly
relevant to that issue. Moreover, the Supreme Court explained in
Harris that “[a] well-trained drug-detection dog should alert to
such [residual] odors; his response to them might appear a
mistake, but in fact it is not.” 133 S. Ct. at 1059. These false
positive cases are correctly factored into Bono’s success rate
because he alerted to the odor of drugs as he was trained.
19
that showing. Trooper Dillon, Bono’s handler, began working with
Bono in 2007, when the pair completed a thirteen-week drug-
detection course at the Virginia State Police training academy.
After completing the course, Bono passed a certification test
before going out into the field with Trooper Dillon. To keep
their certification current, Trooper Dillon and Bono complete
four hours of training each week and 20 hours of in-service
training each month. The pair has been recertified as a team
every year since 2007, and Bono has maintained a 100% success
rate in controlled testing environments. Trooper Dillon
testified that in controlled testing Bono has never failed and
has only alerted on vehicles containing drugs or the odor of
drugs.
The government also presented testimony from Senior Trooper
Sydney Scott Settle, a canine trainer for the Virginia State
Police, who confirmed that Bono has passed all of his annual
certification tests. Settle testified, based on his experience
training Bono, that Bono is a reliable drug-detection dog.
When considering Bono’s field performance records in
conjunction with his degree of training, his performance during
training and recertification exercises, and his evaluations by
Troopers Dillon and Settle, the totality of the circumstances
establish Bono’s reliability in detecting drugs. Because the
government has established Bono’s reliability and Green has
20
failed to undermine that showing, we agree with the district
court that Troopers Johnson and Dillon had probable cause to
search Green’s vehicle. Accordingly, we hold that the district
court correctly denied Green’s second motion to suppress.
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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