United States v. Porter

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 01-5013
SALEEM PORTER,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-01-272)
Argued: September 26, 2002
Decided: October 29, 2002
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: Vincent L. Gambale, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellant. Murray Joseph Janus, BREMNER, JANUS,
COOK & MARCUS, Richmond, Virginia, for Appellee. ON BRIEF:
Paul J. McNulty, United States Attorney, Alessandra DeBlasio, Assis-
tant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellant. Taylor B. Stone,
BREMNER, JANUS, COOK & MARCUS, Richmond, Virginia;
2 UNITED STATES v. PORTER
David S. Rudolf, RUDOLF, MAHER, WIDENHOUSE & FIALKO,
Chapel Hill, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The Government appeals the district court’s order granting Saleem
Porter’s motion to suppress crack and powder cocaine found in his
car. We reverse and remand for further proceedings.
I.
On August 22, 2001, three members of Virginia’s police drug inter-
diction unit, Troopers Lee Elliott, David Batkins, and Debbie King,
were patrolling Interstate 95 in Hanover County, Virginia in
unmarked cars. At approximately 1:45 p.m., Trooper Batkins noticed
two white sport utility vehicles, apparently traveling together, one
with Georgia plates, trying to speed through traffic. He radioed ahead
to advise Trooper Elliott of the vehicles, but Trooper Batkins did not
indicate any suspicions that the cars were carrying drugs, nor did he
attempt to stop the vehicles.
Soon after receiving this call, Trooper Elliott observed a white van
with Georgia license plates passing him on the left. However, Trooper
Elliott admitted that he never saw another car traveling with this van,
or a car that matched the description radioed by Trooper Batkins.
Nevertheless, Trooper Elliott followed the white van, which, although
moving in the normal flow of traffic, was traveling at between 70 and
79 miles per hour in a 65-mile-per-hour speed zone, and switching
lanes without properly using a turn signal.
Having observed these traffic infractions, Trooper Elliott turned on
his vehicle’s lights and an internal video camera, and pulled the van
UNITED STATES v. PORTER 3
to the side of the road. A videotape recorded the entire encounter and
the events set forth below.
Trooper Elliott approached the van and asked the driver, Saleem
Porter, for his license, and told Porter why he had been pulled over.
Porter explained that he had not driven in a while because of an arm
injury he suffered through his construction job. Trooper Elliott asked
Porter to accompany him to the trooper’s car so that the he could run
a check on Porter’s license. Porter agreed, getting out of his vehicle
without apparent difficulty, mentioning that his arm felt "better right
now."
Noting Porter’s baggy shirt, Trooper Elliott asked Porter if he
could feel Porter’s pockets. Porter agreed and Trooper Elliott told him
"[t]his is all just voluntary stuff here." Having checked his pockets,
Trooper Elliott did not otherwise pat Porter down. Porter then got into
Trooper Elliott’s vehicle with Elliott.
Trooper Elliott testified that during the next seven minutes he com-
pleted paperwork while questioning Porter about various matters,
including Porter’s job and his injury, his speeding, his current trip, his
address, and the vehicle’s registration. The trooper then radioed in to
run a check on Porter’s license. Within another minute and a half, the
license check came back clear and Trooper Elliott gave Porter his
papers, a warning, but no ticket, and told him to be more careful.
After wishing Porter a "good trip," Trooper Elliott asked Porter if
he wanted to be let out of the police car. Porter said that he did.
Trooper Elliott reached across and opened the door for Porter, and as
Porter was getting out of the trooper’s car asked "before you go . . .
you don’t have any firearms or weapons . . . or money or drugs or
anything like that in the car?" Porter replied that he did not: "I make
over a half a million dollars a year, and I wouldn’t want to jeopardize
my life and career." Elliott then explained that he was part of a "spe-
cial group of troopers" whose job involved drug and weapon interdic-
tion. He told Porter that he often pulled people over with the intention
of obtaining permission to search their cars.
At this point, Porter volunteered: "Officer, you can look through
the car. I have no problems with looking through the car." Porter also
4 UNITED STATES v. PORTER
mentioned that he was "familiar with the process" because his father
was an attorney in Atlanta, and stated again that "you can look
through the car." Trooper Elliott told Porter that it would just be a
minor inconvenience, that the matter was "strictly voluntary," and that
Porter should sit in the police vehicle while he took a "quick look."
After radioing the other officers, Trooper Elliott informed Porter
that backup officers might arrive. He did not tell Porter that the other
officers would be participating in the search, nor did he request Por-
ter’s approval for their participation. However, Trooper Elliott did tell
Porter several ways to get the troopers’ attention if he wanted to dur-
ing the search, and Porter, in turn, told the trooper not to put up the
van’s windows with the key in the ignition because the car would
lock.
Trooper Elliott began to search Porter’s van at 2:04 p.m.. Troopers
Batkins and King arrived with the drug dog soon thereafter. During
the next three minutes, the troopers unzipped bags, opened the rear
hatch, looked underneath carpeting, and underneath the van itself.
Trooper Elliott later testified that several factors uncovered during
this search aroused his suspicions: the van’s odometer was set to the
trip function and showed more than 2,800 miles; the total odometer
read over 215,000 miles; fast food wrappers littered the van; and the
van’s interior was in disarray. At approximately 2:08 p.m., Trooper
Batkins opened the van’s rear hatch, and about 15 seconds later,
Trooper Elliott noticed a gap of between 8 and 12 inches in the bot-
tom of the van. He suggested looking under the van but Trooper King
said that she should run the drug dog first.
At approximately 2:12 p.m. (eight minutes after the troopers began
their search of the van), the dog alerted to the rear of the car. Immedi-
ately after the dog alerted, Trooper Elliott went back to his car to
speak to Porter, who said, "Officer, I would just like to say this:
. . . I just really don’t like this, man. I mean, I know I have been coop-
erative . . . but . . . was this really necessary Officer?" Trooper Elliott
told Porter he had been "great" and that the officers were just explor-
ing what they had found. Porter said "[a]ll right," but the troopers
noted that he had become very nervous.
UNITED STATES v. PORTER 5
The troopers continued searching the car, and at approximately
2:20 p.m., found a secret compartment. Trooper Elliott then hand-
cuffed Porter, telling him he was not under arrest, but they were
detaining him because of suspicions about his vehicle. The officers
spent about an hour trying to gain access to the secret compartment.
At one point, after reading him his Miranda rights, Trooper Elliott
asked Porter whether he would cooperate, but Porter elected not to
discuss the situation. The troopers eventually found approximately
three quarters of a kilogram of crack cocaine and one kilogram of
powder cocaine inside the secret compartment in the car; they then
arrested Porter.
II.
After considering the evidence, including Trooper Elliott’s testi-
mony and the videotape, the district court granted Porter’s motion to
suppress the crack and powder cocaine found in his van. The court
found that because Trooper Elliott observed a legitimate traffic viola-
tion, the resulting traffic stop of Porter was justified. The court held,
however, that the totality of circumstances in the instant case demon-
strated that Porter had not consented to the search, and that even if
he had consented, the search exceeded the scope of that consent.
The Government maintains that the district court erred both in its
assessment of the voluntariness of the search and the scope of Porter’s
consent. An appellate court reviews a district court’s factual findings
for clear error and its legal conclusions de novo. United States v.
Rusher, 966 F.2d 868, 873 (4th Cir. 1992). In this case, notwithstand-
ing Porter’s understandable attempt to gain the advantage of a defer-
ential standard of review by casting the district court’s conclusions as
fact finding, the critical facts, all of which the videotape memorial-
ized, are undisputed. Therefore, the district court’s ultimate holdings
as to the voluntariness and scope of the consent are, as the district
court itself properly recognized, "conclusions of law," subject to our
de novo review. With this understanding, we consider both of these
holdings in turn.
A.
Although the Fourth Amendment clearly prohibits unreasonable
searches and seizures, and searches without a warrant are per se
6 UNITED STATES v. PORTER
unreasonable unless a valid exception applies, it is equally clear that
a search to which a suspect has consented is an exception to this
requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
The Government, of course, has the burden of proving that the con-
sent was freely and voluntarily given. Id. at 222.
Determination of the voluntariness of consent involves an objective
analysis of the totality of circumstances surrounding the consent. See,
e.g., id. at 227; United States v. Lattimore, 87 F.3d 647, 650 (4th Cir.
1996) (en banc). A court must decide, given the totality of the circum-
stances, whether "a reasonable person in the suspect’s position would
have felt free to decline the officers’ requests or otherwise terminate
the encounter." United States v. Sullivan, 138 F.3d 126, 132 (4th Cir.
1998) (quoting Florida v. Bostick, 501 U.S. 429, 438 (1991)). In
reviewing the totality of the circumstances, we consider the character-
istics of the suspect, such as age, maturity, education, intelligence,
and experience; and the conditions under which the consent was
given, such as the number of officers present, and the duration, loca-
tion, and time of the encounter. Lattimore, 87 F.3d at 650.
As one of its first conclusions of law, the district court held, that
"the continued detention of . . . [Porter after the completion of the
license check and issuance of a warning] was illegal" and Trooper
Elliott was therefore not entitled to request Porter’s consent for a
search. This conclusion does not accord with well-settled case law.
Rather, the Supreme Court has clearly held that the actual motivations
of individual officers in stopping vehicles is irrelevant. Whren v.
United States, 517 U.S. 806, 813 (1996)(noting that precedent "for-
close[s] any argument that the constitutional reasonableness of traffic
stops depends on the actual motivations of the individual officers
involved."). Furthermore, we have repeatedly held that once a traffic
stop has concluded, a continued conversation between an officer and
suspect can be a consensual encounter if a reasonable person would
have felt free to leave. See, e.g., United States v. Weaver, 282 F.3d
302, 309 (4th Cir. 2002) ("Circumstances where the citizen would
feel free to go, but stays and has a dialogue with the officer, are con-
sidered consensual, and therefore do not implicate the Fourth Amend-
ment.").
Indeed, we have held consent voluntary on facts very similar to
those in the case at hand. In Lattimore, as here, a trooper stopped a
UNITED STATES v. PORTER 7
suspect and escorted him to his car because of a traffic violation. 87
F.3d at 649. Moreover, as here, after checking the suspect’s license
and returning it to him, while the suspect was exiting the car, the offi-
cer asked if he could search the vehicle. Id. Finally, again as here, the
suspect orally consented and the resulting search turned up illegal nar-
cotics. Id. at 649-50. We found the consent voluntary even though the
suspect, Lattimore, later refused to sign a written consent form,
because the totality of the circumstances indicated that a reasonable
person would have felt free to decline the request for consent. Id. at
651. Those circumstances included: the suspect’s relative sophistica-
tion evidenced by his education, the casualness of conversation
engaged in by the officer and the suspect, the time and location of the
incident — on a well-traveled highway in the middle of the afternoon,
the fact that only one officer was present when the suspect gave his
consent, and the fact that the stop was not of inordinate duration. Id.Similarly, in this case, Porter was relatively sophisticated, volun-
teering that he knew the law because his father was an attorney; Por-
ter and Trooper Elliott engaged in casual conversation during the
traffic stop; the incident occurred on a well-traveled highway in the
middle of the day; only one officer was present when Porter gave his
consent; the stop was not long; and the conversation following the
conclusion of the traffic stop lasted only about one minute. See also
Sullivan 138 F.3d at 133 (holding a search consensual even though an
officer repeatedly asked questions about the presence of illegal items
in the car, after returning a suspect’s license at the conclusion of a
traffic stop).
The district court distinguished Lattimore from the present case
because Trooper Elliott said "before you go" to Porter as Porter was
getting out of the car, thus assertedly requiring Porter to answer the
questions before resuming his trip. This conclusion flies in the face
of Ohio v. Rabinette, 519 U.S. 33, 36 (1996), in which the Supreme
Court held that the consent obtained from an individual after an offi-
cer asked "before you get gone: Are you carrying any illegal contra-
band in your car?" was valid even though the officer did not tell the
individual he was free to go. As the Government points out, there is
little difference between "before you get gone" and "before you go."
Moreover, the Supreme Court has unequivocally stated that no one
8 UNITED STATES v. PORTER
fact should be dispositive when determining whether a reasonable
person would find conditions coercive. Id. at 39.
The district court also suggested that the case at hand differed from
Lattimore because Trooper Elliott knew Porter needed help getting
out of the car, and thus Porter was not free to leave before answering
the request to consent to a search. However, Trooper Elliott had
already opened the door for Porter and Porter had a foot out of the
car before the trooper ever made his "before you go" request. At that
time, Porter no longer needed Elliott’s help to get out of the car.
In sum, our precedent requires the conclusion that Porter voluntar-
ily gave his consent to the search of his van.
B.
As to the scope of the search, the Supreme Court has again estab-
lished that the appropriate test is an objective one — what would a
reasonable person have understood the exchange between the officer
and the individual to encompass. Florida v. Jimeno, 500 U.S. 248,
251 (1991). Individuals may limit the scope of their consent, but
when, as here, a suspect does not expressly limit the scope of the
search, the test remains what a reasonable person would believe to be
included within the scope of the consent. Id. at 252.
In Jimeno, the Court concluded that once Jimeno gave consent to
search his car without limitation, it was reasonable to search in a
paper bag on the floor of the car because the officer informed Jimeno
that he was looking for drugs, and a reasonable person would expect
to find drugs inside a container. Id. at 251. Similarly, Trooper Elliott
told Porter that he was a member of a narcotics interdiction unit, so
it was reasonable for Porter to assume that the trooper would be look-
ing for drugs in hidden areas in his van, not just those in plain view,
as Porter argues. The district court recognized that had the conversa-
tion between Trooper Elliott and Porter ended with the trooper telling
Porter he was looking for drugs, Porter would have no colorable con-
tention that the search exceeded the scope of his consent. However,
because Trooper Elliott told Porter that he just wanted to take a
"quick look through" the van, never used the word "search," and told
Porter that he would be out of there quickly, the court held that Porter
UNITED STATES v. PORTER 9
limited the search to a limited look through of his van, and never gave
any consent to open any closed or locked part of the van.
There are several problems with this conclusion. First, the tape
reveals that Porter specifically told Trooper Elliott not to put the win-
dows up when he was inside Porter’s van because the van would lock,
indicating that Porter himself recognized that the troopers would need
to open various parts of the van in the course of their search. Jimeno,
500 U.S. at 251.
Moreover, Porter volunteered his consent several times even after
Trooper Elliott had specifically told Porter that he was part of a "spe-
cial group of troopers" whose "job is to stop the flow of drugs and
weapons . . . through the Commonwealth of Virginia." Although Por-
ter could have withdrawn his consent at anytime, he failed to do so.
In fact, Porter reaffirmed his consent even after the officers had
removed the carpeting in the van, and the drug dog alerted to his rear
hatch; at that time, when Trooper Elliott told Porter the officers were
just going to see what they had found, Porter replied "[a]ll right." For
all of these reasons, we can only conclude that a reasonable person
would have believed that the troopers’ search of Porter’s van was well
within the scope of his consent.
III.
For the foregoing reasons, the district court’s order granting Por-
ter’s suppression motion is reversed and the case is remanded for fur-
ther proceedings.
REVERSED AND REMANDED