United States v. David Braxton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4901
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID BRAXTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cr-00444-WDQ-1)
Argued: September 22, 2011 Decided: November 30, 2011
Before WILKINSON, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished opinion. Judge Wilkinson wrote the
majority opinion, in which Judge Floyd joined. Judge Wynn wrote
a dissenting opinion.
ARGUED: Warren Eugene Gorman, Chevy Chase, Maryland, for
Appellant. Michael Clayton Hanlon, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
WILKINSON, Circuit Judge:
Appellant David Braxton was convicted after trial of one
count of possession of a firearm by a convicted felon. Because
of the nature of his prior convictions, Braxton was subsequently
given an enhanced sentence under the Armed Career Criminal Act.
Braxton raises multiple issues in this appeal, including (among
others) denial of his suppression motion, the ineffectiveness of
his counsel, and violations of his statutory and constitutional
rights to a speedy trial. We now affirm.
I.
On May 17, 2006, in Baltimore, Maryland, Baltimore City
Police Officer Richard Allen observed a vehicle passing him with
dark tinted windows. Officer Allen’s radio check of the license
plates revealed further that the tags belonged to another
vehicle. After double-checking this information, Officer Allen
obtained the assistance of two nearby plainclothes officers, and
stopped the car. Officer Allen observed four occupants in the
vehicle, and he approached the driver while one of the backup
officers, Baltimore City Police Officer Kenneth Williams,
approached the passenger side. Braxton was seated in the front
passenger seat, and Officer Williams reported that, although the
other passengers were complaining about being stopped, Braxton
“looked very just nervous.”
2
After discovering that the driver of the vehicle had a
provisional license, which did not permit him to carry the
passengers in the vehicle, Officer Allen asked everyone to get
out of the car. When Braxton stepped out, Officer Williams
advised him that he needed “to pat [him] down for weapons for
safety.” While frisking Braxton, Officer Williams felt a
handgun, prompting him to yell “Gun,” to alert his fellow
officers to the danger of the situation. Braxton then elbowed
Officer Williams in an attempt to escape, but he was subdued
after a struggle with Officer Williams and another assisting
officer.
Braxton was indicted by a grand jury in the District of
Maryland on March 15, 2007 on one count of possession of a
firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1). The case was assigned to Judge J. Frederick Motz
and set for trial. Because Officer Allen deployed to Iraq in
October 2007, the Government was forced to ask for continuances
until, on September 16, 2008, Judge Motz decided to deny a
further continuance and to dismiss the indictment without
prejudice.
On September 17, 2008, the grand jury returned a second
indictment of Braxton for the same felon-in-possession charge,
and the new case was assigned to Judge William D. Quarles. On
October 10, 2008, Braxton filed new motions to dismiss the
3
indictment and to suppress the gun discovered during the traffic
stop. Those motions remained pending until March 16, 2009, the
first day of trial, when the district court held a brief hearing
and denied the motions. Braxton was convicted after a three-day
jury trial.
At his sentencing hearing on September 4, 2009, Braxton
objected to his classification as an armed career criminal under
18 U.S.C. § 924(e). He conceded that two of his prior
convictions qualified as “serious drug offense[s],” but disputed
the status of a third prior offense. After the government
produced a certified conviction and certified charging document,
the district court rejected Braxton’s objection and sentenced
him to 235 months’ imprisonment. This appeal followed.
II.
We begin with Braxton’s claim that the district court erred
in refusing to suppress the firearm found by Officer Williams
during the pat-down. Because the district court properly
concluded that the encounter was a Terry stop, see Terry v.
Ohio, 392 U.S. 1 (1968), not a consensual encounter, the frisk
may only be justified if two independent criteria were
satisfied. First, the police must have a reasonable suspicion
“that criminal activity may be afoot,” id. at 30, in order to
make the stop in the first place. Second, the police must
4
similarly have reasonable suspicion “that the persons with whom
[they are] dealing may be armed and presently dangerous” in
order to justify “a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons.”
Id. This bifurcated analysis has led to separate terms for the
permissible police actions: the “Terry stop” and the “Terry
frisk,” see, e.g., Florida v. J.L., 529 U.S. 266, 272-73 (2000).
In considering Braxton’s challenge to the suppression
ruling, we consider the district court’s factual findings solely
for clear error, but we review legal determinations de novo.
See United States v. Hamlin, 319 F.3d 666, 671 (4th Cir. 2003).
When a suppression motion has been denied, “[w]e construe the
evidence in the light most favorable to the Government.” United
States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
A.
Here, the district court properly analyzed the
justification for the investigative stop of the vehicle, finding
explicitly that “[t]he lack of an appropriate tag on the
vehicle, of course, is an appropriate basis for the Terry stop.”
Indeed, Braxton does not challenge the stop itself in this
appeal. He does challenge the appropriateness of the frisk,
however, and there, the district court did err.
In discussing the frisk, the district court appears to have
misspoken, repeating the standard for the stop as the
5
appropriate analysis for the frisk: “[W]hen there is reasonable
suspicion of the passenger’s participation in criminal activity,
then Terry does permit a frisk of the passenger.” Further, this
conflation of the two steps of Terry analysis was error; the
district court should have stated that “the officers . . .
needed reasonable, articulable suspicion that [Braxton] was
armed and dangerous.” United States v. Brown, 401 F.3d 588, 592
(4th Cir. 2005).
B.
But the district court’s failure to articulate the proper
measure of a Terry frisk does not necessarily entitle Braxton to
relief. In considering the suppression ruling, “[w]e are not
limited to evaluation of the grounds offered by the district
court to support its decision, but may affirm on any grounds
apparent from the record.” United States v. Smith, 395 F.3d
516, 519 (4th Cir. 2005). Here, the district court explicitly
found that the police had a reasonable “suspicion that the
Defendant may have been involved in the theft of a car” -- a
conclusion amply supported by the testimony about the license
plates that did not belong to the vehicle, heavily tinted
windows on the car, Braxton’s nervousness about the arrival of
the police (especially in contrast to the boisterousness of the
other passengers), and the nature of the area in which the stop
occurred.
6
None of these primary facts are in dispute, much less
clearly erroneous. While in some cases the circumstances of an
investigative stop would not supply the rationale for a Terry
frisk, in others, the circumstances leading to the stop would
bear directly upon the reasonableness of the subsequent Terry
frisk. Such is the case here. It seems unnecessary, therefore,
to remand to the district court to reiterate what the court’s
findings have already revealed -- that Officer Williams had a
reasonable suspicion that Braxton was armed and dangerous.
After all, as the District of Columbia Circuit has emphasized,
“car theft is a crime that often involves the use of weapons and
other instruments of assault that could jeopardize officer
safety, and thus justifies a protective frisk under Terry.”
United States v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007).
The cases to this effect are legion. See, e.g., United
States v. Garcia-Rivera, 353 F.3d 788, 791 (9th Cir. 2003)
(approving pat-down when “[i]nability to provide proof of
registration gives rise to suspicion of a stolen vehicle”);
United States v. Rowland, 341 F.3d 774, 784 (8th Cir. 2003)
(“[L]aw enforcement could infer the vehicle might be stolen, and
as possible car thieves [defendants] might possess weapons.”);
United States v. Shranklen, 315 F.3d 959, 963 (8th Cir. 2003)
(holding that defendants “might have stolen the car and,
therefore, might have weapons in the car that they used during
7
the theft or had available in case they were discovered”);
United States v. Tuggle, 284 Fed.Appx. 218, 227 (5th Cir. 2008)
(“[W]hen [defendant]’s conduct reasonably suggested that he
might be part of that auto-theft ring, the officers were
justified in fearing for their safety.”); United States v.
Williams, 7 Fed.Appx. 876, 885 (10th Cir. 2001) (Officer’s
“frisk of [defendant] for weapons . . . was permissible under
Terry” in light of “the objectively reasonable suspicion that
the van was stolen.”) United States v. Bradley, 1990 WL 124205at *2 (6th Cir. 1990) (“It was reasonable for the officer to
believe that appellant, who was suspected of having recently
been involved in a car theft, might have been armed and
dangerous.”)
It is not at all a bad thing for trial courts to dot the
“i” and cross the “t”, and the court should have done so here.
But the factual finding that the officers had a reasonable
“suspicion that the Defendant may have been involved in the
theft of a car,” together with the other circumstances
surrounding the encounter, leave the record sufficiently clear
that the proper Terry standard was satisfied. We may thus
affirm the ultimate ruling of admissibility notwithstanding the
fact that the criteria for the Terry stop and Terry frisk should
have been independently articulated and applied.
8
Contrary to the dissent’s assertion, we are not
“making . . . findings on a cold appellate record.” Post at 23.
The district court made the critical finding that this
particular defendant may have been involved in auto theft, and
that a Terry frisk was therefore justified. In accord with a
variety of other courts, we merely hold that a factual finding
that the defendant is a potential car thief supports the legal
conclusion that there is reasonable suspicion that he is armed
and dangerous. 1
1
This court’s decision in United States v. Powell, ___ F.3d
___, No. 08-4696 (4th Cir. Nov. 14, 2011), is not to the
contrary. In Powell, we held that a defendant’s criminal
history and misrepresentations about his driver’s license were
insufficient to justify a Terry frisk. See id. (slip op. at 11,
14). This case presents substantially different facts. At the
very outset, the stop in Powell was for a burned-out headlight,
whereas here the car in which Braxton was a passenger had
license plates that did not match the vehicle -– a much greater
indication that a serious crime was afoot in addition to being a
traffic violation. When executing the stop, the police in
Powell confronted a “relatively safe” situation in which there
were more officers present than passengers in the car, and there
was no evidence that the area where the stop occurred was itself
notably dangerous. See id. (slip op. at 10-11). Here, the
officers were both outnumbered and conducted the stop in a more
treacherous area. Finally, while the stop was underway, the
defendant in Powell was “amicable [and] cooperative,” id. (slip
op. at 11), whereas the district court here made the express
finding that Braxton could have been involved in the theft of
the car that the police had stopped –- an immediate crime of a
serious nature that six other circuits have held presents a
sufficiently inherent risk of confronting an armed and dangerous
suspect that a Terry frisk is justified.
9
C.
In affirming the district court, we recall as well that a
frisk is justified by the “‘legitimate and weighty’ interest in
officer safety,” Arizona v. Johnson, 129 S. Ct. 781, 786 (2009)
(quoting Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977)) -- a
different purpose than “investigating possibly criminal
behavior,” Terry, 392 U.S. at 22, that justifies a stop in the
first place. That protective interest is not attenuated because
Braxton was a passenger and not the driver of the vehicle. For
as the Supreme Court has noted, “the motivation of a passenger
to employ violence to prevent apprehension of such a crime is
every bit as great as that of the driver.” Maryland v. Wilson,
519 U.S. 408, 414 (1997).
Here, the officers confronted a dangerous situation
presenting numerous indicia of criminal activity. They were
outnumbered by the passengers in a vehicle bearing bad tags
traveling through a dangerous area with darkly tinted windows.
While “[w]e do not exclude the possibility that in some
circumstances a patdown is not required[,]. . . we hesitate
before criticizing [Officer Williams’s] choice of the means to
protect himself in emergent circumstances on the street from the
relative calm and safety of chambers.” United States v. Casado,
303 F.3d 440, 448-49 (2d Cir. 2002) (citing Graham v. Connor,
490 U.S. 386, 396 (1989)).
10
Proper adherence to the standards of Terry does not require
us to gamble with the lives of police officers who exercise
reasonable judgment in fulfilling their duty in the trying
situation presented by a roadside car stop. The Supreme Court
has long noted that “investigative detentions involving suspects
in vehicles are especially fraught with danger to police
officers.” Michigan v. Long, 463 U.S. 1032, 1047 (1983) (citing
Mimms, 434 U.S. 106). Officer Williams executed a minimally
intrusive frisk, justified at the time by a reasonable suspicion
that he and his fellow officers were in a situation that could
escalate and place both the officers and the occupants of the
car at risk. Where the totality of circumstances supports a
reasonable suspicion that Braxton was “armed and dangerous,” the
absence of those three talismanic words, while error, is not
fatal to the district court’s ruling in this case.
III.
Second, Braxton asserts that his original attorney provided
him with ineffective assistance of counsel by failing to conduct
an adequate investigation during plea negotiations. Braxton
does not assert that the trial that resulted in his present
conviction was unfair, only that his counsel’s failure to obtain
a recording of police radio communications induced him to reject
a favorable guilty plea and exercise his right to trial. We
11
note that the Supreme Court is currently considering the broader
question Braxton’s appeal implicates -- whether a defendant is
ever prejudiced by going to trial rather than accepting a guilty
plea, even if that decision results from deficient performance
of counsel -- in two consolidated cases. See Lafler v. Cooper,
131 S. Ct. 856 (No. 10-209) (2011); Missouri v. Frye, 131 S. Ct.
856 (No. 10-444) (2011). We need not await the resolution of
those cases, however, because Braxton’s appeal may be rejected
on much narrower grounds; specifically, we agree with the
district court that Braxton’s counsel’s performance did not fall
“below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 688 (1984).
Braxton’s claim derives from the failure of his counsel to
obtain the “KGA tape,” a recording of police radio
communications during an incident. Braxton’s counsel requested
(but did not subpoena) a copy of the tape from the government,
but was told that the tape no longer existed. This was
consistent with the prior experience of Braxton’s counsel, who
knew that KGA recordings are typically only kept for a short
period of time after an incident. Braxton’s counsel did
subpoena the “CAD report,” a written summary of those radio
communications.
The CAD report erroneously contained inconsistencies with
the testimony of Officer Allen, reporting that he only requested
12
a check of the vehicle’s license plates after initiating the
Terry stop. Braxton’s counsel discussed with him the options
this presented for seeking suppression of the firearm recovered
in that stop and for impeaching the testimony of the police
officers involved. During this time, the government offered
Braxton two separate plea agreements, one for a federal charge
of possession of a stolen gun and one for a state firearms
charge. During both negotiations, Braxton’s counsel recommended
that he accept the plea offers. Braxton ignored this advice and
rejected the deals, proceeding to trial apparently in the belief
that the inconsistencies in the CAD report might lead to his
acquittal.
Later, however, the KGA tape was discovered, to the
surprise of both the government and Braxton’s counsel. The
recording confirmed Officer Allen’s account of the order in
which events transpired, essentially eliminating the impeachment
value of the CAD report.
Braxton simply cannot show that his counsel performed
deficiently. First, and most plainly, Braxton acted against the
advice of counsel in rejecting the guilty pleas. While it is an
open question before the Supreme Court whether a defendant is
prejudiced when he follows the erroneous advice of counsel to
seek a trial, Braxton rejected counsel’s wise advice to plead
guilty -- counsel knew that, even before emergence of the
13
damaging KGA tape, Braxton’s chances of success at trial were
bleak. In essence, Braxton seeks to blame his counsel, who gave
him good advice, for not giving that advice well enough. We
will not permit the buyer’s remorse of a defendant who insists
on going to trial to impugn the sound advice of his attorney
that he pursue the more prudent path of the plea bargain.
Second, Braxton’s claim boils down to the assertion that it
was ineffective for his counsel merely to have “requested” the
KGA tape, rather than subpoenaing it. While it is doubtful that
a subpoena would have actually brought forth the evidence
sought, since the government was, at that time, also unaware
that the tape was available, the distinction between a request
and a subpoena is not one of constitutional moment here.
The Court in Strickland did not require that counsel employ
every investigative technique imaginable, but rather held that
“strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation.” Strickland, 466 U.S. at 690-91. Braxton’s
counsel reasonably believed -- based on long experience as a
Federal Public Defender -- that the tape would not be available.
He took the precautionary step of requesting it anyway, and,
when told the tape did not exist, counsel subpoenaed the CAD
report as the next best evidence of what transpired. It was not
14
a deficiency of Braxton’s counsel that the CAD report did not
accurately record when in the course of the encounter the
request for a license plate check was made, nor was it subpar
performance for Braxton’s counsel to believe the government’s
representation that the KGA tape did not exist. In short,
Braxton’s counsel’s actions throughout fell “well within the
range of professionally reasonable judgments.” Id. at 700.
IV.
Third, Braxton asserts violations of both his statutory and
constitutional rights to a speedy trial.
A.
The Speedy Trial Act, 18 U.S.C. § 3161, provides that a
defendant shall be brought to trial “within seventy days from
the filing date (and making public) of the information or
indictment, or from the date the defendant has appeared before a
judicial officer of the court in which such charge is pending,
whichever date last occurs.” Id. § 3161(c)(1). Braxton asserts
that because it was almost three years from his arrest until his
trial, he suffered an impermissible delay. But the statute also
provides that “delay resulting from any pretrial motion, from
the filing of the motion through the conclusion of the hearing
on, or other prompt disposition of, such motion” is excludable
15
from the 70-day window. Id. § 3161(h)(1)(D). Braxton’s case
was brought well within this window.
Braxton’s initial appearance on the first indictment took
place on September 24, 2007. His first set of motions was filed
twenty-nine days later, on October 23, 2007. Those motions
remained pending until the dismissal of his first indictment on
September 17, 2008. He was then reindicted, and had his initial
appearance on that charge on September 24, 2008. His second set
of motions was filed sixteen days later, on October 10, 2008.
Those motions were pending until their resolution on the first
day of trial, March 16, 2009. Giving the defendant the benefit
of any doubt and combining both the twenty-nine day period on
the first indictment and the sixteen day period on the second
indictment, only 45 total non-excludable days of the permissible
70 elapsed -- well within the permissible bounds of the Speedy
Trial Act. 2
B.
Braxton also alludes to the constitutional requirement of a
prompt trial under the Sixth Amendment. We employ the four part
2
Braxton contends, with no supporting authority, that this
time should not be excluded because the motions were “simple.”
This court has been clear, however, that when a trial court
defers resolution of a pretrial motion until the trial itself,
all pending time may properly be excluded under the Act, and
there is “no requirement that this time be justified as
reasonable.” United States v. Riley, 991 F.2d 120, 124 (4th
Cir. 1993).
16
test established by the Supreme Court in Barker v. Wingo, 407
U.S. 514 (1972), to evaluate this claim. The factors to be
considered are (1) the length of the delay; (2) the reason for
the delay; (3) whether the defendant timely asserted his right;
and (4) whether delay prejudiced the defendant’s case. Id. at
530.
First, the delay here amounted to almost exactly two years
from the initial indictment until the beginning of trial. While
that time period is long enough to merit further examination of
the Barker factors, it is consistent with other cases in which
this court has found no Sixth Amendment violation. See, e.g.,
United States v. Hall, 551 F.3d 257 (4th Cir. 2009).
Second, the reason for the delay was eminently reasonable:
a key law enforcement witness had been called up for deployment
to Iraq. It is particularly jarring for Braxton to describe
Officer Allen’s absence -– occasioned by military service to
this nation overseas -- as due to “negligence or lack of
diligence” on the part of the government. In all events, this
court has been clear that “a missing witness” qualifies as a
“valid reason for delay” by the prosecution. Id. at 272.
Third, Braxton only first raised this claim on February 9,
2009, hardly a prompt insistence on strict observance of
constitutional timeliness requirements.
17
Lastly, Braxton points to no way in which he was
prejudiced. He shows no evidence that was lost. He makes no
demonstration that his case was harmed other than the naked
assertion that “[h]e had witnesses who were originally available
that may have been helpful.” None of this approaches Barker
error, and we affirm the district court’s rejection of Braxton’s
constitutional speedy trial claim. 3
3
Braxton raises three other claims that are equally
meritless. First, he claims that his second indictment should
have been reassigned to Judge Motz rather than newly distributed
to Judge Quarles, speculating that he was prejudiced because
Judge Motz “may have made a different ruling” on Braxton’s
motions. No legal authority entitles Braxton to a particular
jurist, and his speculation as to rulings is as irrelevant as it
is unsupported.
Second, Braxton asserts that his Fifth Amendment rights
were violated by failure of the government to resubmit his case
to the grand jury after Judge Motz dismissed the initial
indictment. This contention is false. The September 17, 2008
second indictment was plainly returned by the grand jury,
bearing the “True Bill” designation.
Finally, Braxton asserts that the district court erred in
considering one of his Maryland narcotics convictions as a
predicate under the Armed Career Criminal Act. The government,
however, provided certified documents showing that the
convictions were for qualifying felonies under Maryland state
law. Further, Braxton has made no showing other than his own
assertion that the Maryland conviction was in any way
uncounselled, a point his primary brief does not raise and that
in no way justifies overturning the reasoned sentencing
conclusions of the district court.
18
V.
Finding each of Braxton’s claims to be without merit, the
judgment of the district court is
AFFIRMED.
WYNN, Circuit Judge, dissenting:
This case involves the patdown search of a passenger in,
not the driver of, a vehicle. Recently, in Arizona v. Johnson,
the Supreme Court held: “To justify a patdown of the driver or
a passenger during a traffic stop, however, just as in the case
of a pedestrian reasonably suspected of criminal activity, the
police must harbor reasonable suspicion that the person
subjected to the frisk is armed and dangerous.” 555 U.S. 323,
327 (2009).
The majority opinion agrees that the record in this matter
shows conclusively that the district court made no findings
regarding whether Defendant, the passenger in this case, was
armed and dangerous. Ante at p.6. Even further, the majority
opinion agrees that the district court erred in holding that the
officers were justified in patting down the passenger based only
on the “suspicion that the Defendant may have been involved in
the theft of a car.” J.A. 30.
However, whereas the majority sees the district court’s
erroneous conclusion as a mere harmless failure to “dot the ‘i’
and cross the ‘t,’” I consider the error to be both a
misstatement and, more importantly, a misapplication of binding
Supreme Court precedent. For a patdown search to be justified,
Arizona v. Johnson explicitly requires a finding that the
officer had a reasonable suspicion that this particular
passenger was armed and dangerous. 555 U.S. at 327. Not only
did the district court fail to make any such a finding, no
evidence exists in this case that would be sufficient for this
Court to assume the role of a trial court and make such finding
in its stead. I must therefore, with great respect for the
differing view of my colleagues, dissent.
It is important to note that the district court here did
correctly observe that “merely being a passenger in a car that
was stopped does not necessarily give the Government the right
to frisk one.” Volume I, Transcript of Motions Hearing, at 120,
United States v. Braxton, Case No. 1:08-cr-00444-WDQ-1 (Mar. 16,
2009) [hereinafter referred to as “Transcript”]. Likewise, our
own Court’s case law provides that “[b]ecause a frisk or ‘pat
down’ is substantially more intrusive than an order to exit a
vehicle or to open its doors, . . . an officer must have
justification for a frisk or a ‘pat down’ beyond the mere
justification for the traffic stop.” United States v. Sakyi,
160 F.3d 164, 169 (4th Cir. 1998) (emphasis added). Despite
this clear precedent, under the majority’s holding, any
passenger in a vehicle with bad license tags could be subjected
to a patdown search, even absent a finding of reasonable
suspicion that particular individual is armed and dangerous, if
the vehicle is stopped in a high-crime area.
To support this extension of the law, the majority states:
“In accord with a variety of other courts, we merely hold that a
21
factual finding that the defendant is a potential car thief
supports the legal conclusion that there is reasonable suspicion
that he is armed and dangerous.” Ante p. 9. But the “variety”
of cases relied upon by the majority generally involved the
search of the driver, not the passenger, see United States v.
Bullock, 510 F.3d 342 (D.C. Cir. 2007), and United States v.
Garcia-Rivera, 353 F.3d 788 (9th Cir. 2003), or otherwise
entailed additional extenuating circumstances, see United States
v. Rowland, 341 F.3d 774, 784 (8th Cir. 2003) (search of the
vehicle’s interior); United States v. Shranklen, 315 F.3d 959,
963 (8th Cir. 2003) (patdown of passenger was with consent);
United States v. Tuggle, 284 F. App’x 218, 227 (5th Cir. 2008)
(search was not in context of a Terry stop but in course of
ongoing investigation); and United States v. Williams, 7 F.
App’x 876, 885 (10th Cir. 2001) (stop became detention, and
passenger’s inability to answer questions suggested he might be
involved in the theft of the vehicle).
In this case, the record shows that the officers stopped
the vehicle because it had an incorrect license tag, had heavily
tinted windows, and was being driven in a high-crime area.
Those observations constituted the justification for the traffic
stop. Thus, at the time the vehicle was stopped, Defendant was
merely a passenger in a car stopped by police for traffic
infractions. The police had no information that linked
22
Defendant to the alleged theft of the tags or that the vehicle
itself was even stolen.
To be sure, the record includes Officer Williams’s
testimony regarding Defendant’s “nervousness.” But the district
court made no findings with respect to that testimony, or
concerning Officer Williams’s statement that he conducted the
patdown search of Defendant for “officer safety.” In short, the
district court made no findings regarding whether Officer
Williams had a reasonable suspicion that Defendant was armed and
dangerous. Indeed, beyond the findings about the traffic
infractions that justified the stop of the vehicle, the district
court made no reference whatsoever to Defendant or his conduct,
and certainly not that he was a “potential car thief” or even
specifically that the suspected criminal activity was “auto
theft,” rather than the theft of a license plate. Ante p. 9.
Under these circumstances, this Court should not seek to
create a particularized “justification . . . beyond the mere
justification for the traffic stop,” Sakyi, 160 F.3d at 169,
namely, Defendant’s “nervousness about the arrival of the
police,” ante p. 6. Making such findings on a cold appellate
record, particularly those that rest on the credibility
determinations of witnesses, falls well outside the proper role
of this Court:
Factfinders exist for definite purposes, one of which
is to observe the demeanor of [witnesses] . . . .
23
Appellate courts are well-positioned to determine
whether a factual finding is without support in the
evidence; we are much less able simply to overturn a
factfinder on a question on which two views of the
evidence are possible. . . . Factfinders routinely
resolve discrepancies between evidentiary sources, and
by being able to observe testimony first-hand, they
are in the best position to do so.
Harris v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of
Labor, 3 F.3d 103, 106-07 (4th Cir. 1993). See also Anderson v.
City of Bessemer City, 470 U.S. 564, 573 (1985) (“In applying
the clearly erroneous standard to the findings of a district
court sitting without a jury, appellate courts must constantly
have in mind that their function is not to decide factual issues
de novo.” (quotation marks and citation omitted)).
It is worthwhile to remember that we have long resisted
engaging in such fact-finding, even when it might be expedient
for reasons of judicial economy, and even when the evidence is
undisputed:
We are unwilling to . . . substitute fact finding at
the appellate level for fact-finding at the trial
level. The fact-finding responsibility has long been
recognized as one for the trial court and sound
practice suggests strict observance of this division
of responsibility between trial and appellate courts
except in the most exceptional circumstances.
Wimmer v. Cook, 774 F.2d 68, 76 (4th Cir. 1985). See also
United States v. Stevenson, 396 F.3d 538, 543 (4th Cir. 2005)
(“If appellate courts were to begin the practice of making
competitive findings with respect to undisputed or documentary
evidence, they would usurp the trial function . . . .”).
24
Here, while there was “testimony about the license plates
that did not belong to the vehicle, heavily tinted windows on
the car, [Defendant’s] nervousness about the arrival of the
police, . . . and the nature of the area in which the stop
occurred,” ante p. 6 (emphasis added), there are no actual
findings by the district court about these critical facts,
particularly with respect to Defendant’s failure to make eye
contact, or whether Officer Williams’s concerns for his safety
were reasonable or particularized to Defendant. 1 Hindsight
cannot be the judge of such behavior. See United States v.
Martinez-Fuerte, 428 U.S. 543, 565 (1976) (noting that a purpose
of the Fourth Amendment is to “prevent hindsight from coloring
the evaluation of the reasonableness of a search or seizure”).
On this record, it cannot be discerned why the district
court failed to make the necessary findings. It is entirely
possible that the district court heard Officer Williams’s
testimony, the Government’s reasoning, and defense counsel’s
1
In fact, some of Officer Williams’s testimony suggests
that his safety concerns were generalized and not specific to
Defendant or his behavior. When he first heard the radio call,
before he had even seen Defendant or gotten to the location of
the traffic stop, he recalled that “four occupants in a vehicle
in that area, bad tags, and, based on working in that area for .
. . six years prior to that incident, that usually means some
criminal activity possibly involved.” J.A. 17. After noting
that Defendant seemed nervous during the stop, he testified that
he told Defendant, “‘Sir, I’ve got to pat you down for weapons
for safety,’ given the totality of the whole situation and my
dealings with bad tags and individuals in that area.” J.A. 19.
25
arguments, and found the stated justifications for a suspicion
of Defendant’s being armed and dangerous did not meet the
standard of reasonable suspicion. Perhaps the district court
instead only found it reasonable for Officer Williams to have
suspected Defendant was engaged in criminal activity. Under
clear Supreme Court precedent, that is not the required
justification for a patdown search of a passenger in a vehicle
subjected to a Terry stop.
Likewise, I can find no support in the record for the
majority opinion’s statement that, “Braxton then elbowed Officer
Williams in an attempt to escape, but he was subdued after a
struggle with Officer Williams and another assisting officer.”
Ante p. 3. The transcript shows that Officer Williams recalled
that Defendant “attempted to elbow me to get me off of him.”
Transcript, at 56. Nothing in the record indicates that Officer
Williams stated that Defendant made “an attempt to escape.”
To the contrary, Officer Williams testified under cross-
examination that the police report was incorrect if it reflected
that Defendant “attempted to push [Officer Williams] back and
run” and that in fact Defendant complied with Officer Williams’s
request to get out of the vehicle and put his hands up, allowing
Officer Williams to pat him down. Transcript, at 61. He
further agreed that “any insinuation in the police report” that
Defendant did not comply was incorrect. Id. at 62.
26
Moreover, because Defendant’s “nervousness” is the sole
factor particularized to him and not related to the
justification for the Terry stop, that conduct is the linchpin
of whether the search in question was reasonable. See, e.g.,
Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (“An individual’s
presence in an area of expected criminal activity, standing
alone, is not enough to support a reasonable, particularized
suspicion that the person is committing a crime.”). See also
Terry v. Ohio, 392 U.S. 1, 21 n.18 (1968) (“This demand for
specificity in the information upon which police action is
predicated is the central teaching of this Court’s Fourth
Amendment jurisprudence.”). As such, the appellate fact-finding
engaged in by the majority on this point is especially
inappropriate.
I note as well that we have previously recognized that mere
nervousness is not necessarily suspicious behavior. See United
States v. Massenburg, 654 F.3d 480, 489 (4th Cir. 2011) (“Given
the complex reality of citizen-police relationships in many
cities, a young man’s keeping his eyes down during a police
encounter seems just as likely to be a show of respect and an
attempt to avoid confrontation.”). The panel in Massenburg
further quoted the following persuasive language from other
courts:
[I]t is common for most people to exhibit
signs of nervousness when confronted by a law
27
enforcement officer whether or not the person is
currently engaged in criminal activity. Thus,
absent signs of nervousness beyond the norm, we
will discount the detaining officer’s reliance on
the detainee’s nervousness as a basis for
reasonable suspicion.
[United States v. Salzano,] 158 F.3d 1107, 1113 (10th
Cir. 1998) (internal quotation marks and citations
omitted). See also State v. Lee, 265 Neb. 663, 658
N.W.2d 669, 678–79 (2003) (“[N]ervousness is of
limited value” to reasonable suspicion analyses as “it
is common knowledge that most citizens whether
innocent or guilty, when confronted by a law
enforcement officer who asks them potentially
incriminating questions are likely to exhibit some
signs of nervousness.”).
Massenburg, 654 F.3d at 490. Even Officer Williams conceded
that “different people react different ways when the police show
up.” Defendant’s supposed nervousness, or failure to make eye
contact, is hardly a definitive indicator of dangerousness.
Had the front-seat passenger in this case been the driver’s
grandmother, whom the driver had perhaps just picked up to go
shopping, rather than Defendant, then her nervousness may well
have been deemed typical, rather than suspicious, behavior. And
yet, I can find no evidence in this record to suggest that this
particular Defendant had any more knowledge that the car in
which he was a passenger was stolen than the driver’s
grandmother might have.
Nothing indicates that the vehicle to which the license
plate actually belonged was stolen just prior to the traffic
stop, or that the vehicle appeared to be attempting to flee the
28
police, or that there was any information that more than one
individual was responsible for the theft. Moreover, the radio
call mentioned only that the tags did not match the vehicle, not
that the vehicle itself was stolen. See United States v.
Foster, 634 F.3d 243, 248 (4th Cir. 2011) (“[A]n officer and the
Government must do more than simply label a behavior as
‘suspicious’ to make it so. The Government must also be able to
either articulate why a particular behavior is suspicious or
logically demonstrate, given the surrounding circumstances, that
the behavior is likely to be indicative of some more sinister
activity than may appear at first glance.”); United States v.
Powell, No. 08-4696, ___ F.3d ___, ___, 2011 U.S. App. LEXIS
22795 (4th Cir. Nov. 14, 2011) (holding that the district court
should have suppressed evidence seized during a patdown search
of a passenger during a traffic stop despite the passenger’s
prior criminal record for armed robbery and his “purported
deliberate misrepresentation concerning the validity of his
driver’s license”). 2 See also Terry, 392 U.S. at 21-22 (noting
2
Unlike the district court in this case, the district court
in Powell explicitly held that “the officers had reasonable
suspicion that [Defendant] was armed and dangerous and were thus
entitled to frisk him.” ___ F.3d at ___, 2011 U.S. App. LEXIS
22795, *2. This Court’s analysis in Powell thus rightly focused
instead on the question of whether the evidence supported such a
conclusion.
In so focusing, this Court also recognized the danger of
“cobbling together a set of facts that falls far short of
(Continued)
29
that police officers must have “specific and articulable facts”
to justify a search, as “[a]nything less would invite intrusions
upon constitutionally guaranteed rights based on nothing more
substantial than inarticulate hunches”).
In sum, the district court’s error was not some harmless
conflation of the two standards under Terry. Rather, the
district court misstated and applied the wrong standard to
determine the constitutionality of a search, a possible
violation of one of the rights we hold most dear. The majority
nonetheless makes its own findings to uphold the search in this
matter on the basis that the reasonable suspicion that Defendant
may have been involved in the theft of a car is sufficient to
pass constitutional muster, when combined with an appellate
court’s finding of “nervousness,” the sole factor particularized
to Defendant. Such a conclusion, and the legal gymnastics it
establishing reasonable suspicion.” Id. at ___, 2011 U.S. App.
LEXIS 22795, at *3. Quoting Foster, Massenburg, and United
States v. Digiovanni, 650 F.3d 498 (4th Cir. 2011), as examples
of cases in which “the Government failed to meet its minimal
burden of articulating facts sufficient to support a finding of
reasonable suspicion,” this Court vacated the judgment against
Powell on the same grounds. Id. at ___, 2011 U.S. App. LEXIS
22795, *2-*3.
Thus, the most critical distinction from Powell is that in
this case it is this Court, rather than the district court, that
is “cobbling together a set of facts that falls far short of
establishing reasonable suspicion.” Id. at ___, 2011 U.S. App.
LEXIS 22795, *3.
30
entails, is plainly contrary to the Supreme Court’s holdings in
Terry and Johnson, as well as our own Court’s precedent
concerning the propriety of appellate fact-finding.
Accordingly, I must respectfully dissent.
31