USCA4 Appeal: 22-4084 Doc: 51 Filed: 08/01/2023 Pg: 1 of 25
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-4084
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES JOSEPH PODBIELSKI,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Max O. Cogburn, Jr., District Judge. (1:20-cr-00066-MOC-WCM-1)
Argued: March 22, 2023 Decided: August 1, 2023
Before DIAZ, Chief Judge, and GREGORY and THACKER, Circuit Judges.
Reversed, vacated, and remanded by unpublished per curiam opinion.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: John G. Baker, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4084 Doc: 51 Filed: 08/01/2023 Pg: 2 of 25
PER CURIAM:
In the early hours of July 25, 2019, James Podbielski (“Appellant”) was pulled over
after Jackson County, North Carolina, Sherriff’s Deputy Robert Porter (“Deputy Porter”)
observed Appellant’s SUV cross the fog line twice and then cross left of center. After a
19-minute traffic stop, a K9 unit arrived on scene for a drug sniff. The K9 alerted, and
officers searched Appellant’s vehicle. Deputies located a plastic baggie containing
approximately 1.4 ounces of methamphetamine and digital scales under the front passenger
seat.
Appellant moved to suppress the drugs as well as his post-search statements, arguing
that Deputy Porter improperly prolonged the stop without reasonable suspicion. The
district court denied Appellant’s motion. Subsequently, Appellant entered a conditional
guilty plea to possession with intent to distribute methamphetamine in violation of 21
U.S.C. § 841(a)(1), preserving his right to appeal the district court’s denial of his motion
to suppress.
We conclude that Deputy Porter prolonged the traffic stop without reasonable,
articulable suspicion. Thus, we reverse the district court’s denial of Appellant’s
suppression motion, vacate Appellant’s conviction, and remand the case.
I.
A.
At approximately 2:45am on July 25, 2019, Deputy Porter was patrolling Highway
441 in uniform and in a marked vehicle. Highway 441 is “the most direct route from
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Atlanta” and one of only two highways in the area of Whittier, North Carolina. J.A. 88. 1
While traveling behind a silver SUV, Deputy Porter observed the SUV cross over the fog
line twice. Deputy Porter pulled alongside and passed the SUV in order to obtain its license
plate number. In his rearview mirror, Deputy Porter observed the SUV cross over the
center line. At that point, Deputy Porter “suspect[ed] the driver was possibly intoxicated
or under the influence of something.” Id. at 83.
During the suppression hearing, Deputy Porter testified that, in order to get the SUV
to pass him so that he could initiate a traffic stop, he had to slow from 50 miles per hour to
35 miles per hour. Deputy Porter further testified, “it’s pretty typical for vehicles to slow
down to the posted speed limit or maybe five miles below, but it’s very unusual -- I’ve
never actually had a vehicle slow down this much.” J.A. 84. Deputy Porter testified he
found it suspect that Appellant would slow his vehicle so significantly below the posted
speed limit. Once the SUV passed, Deputy Porter activated his blue lights and initiated a
traffic stop at 2:46am. The stop occurred near Olivet Church Road in Whittier, North
Carolina.
Deputy Porter informed Appellant, who was driving the SUV, that he had been
stopped for crossing the fog and center lines. Although Deputy Porter initially suspected
Appellant of driving under the influence, Deputy Porter testified that he did not smell
alcohol. While speaking with Appellant, Deputy Porter noticed that the passenger’s “pants
were completely unzipped.” J.A. 87. Deputy Porter became suspicious that the passenger,
1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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Anna Parton (“Parton”), was “possibly trying to conceal something within her pants or
vaginal cavity.” Id. Deputy Porter testified that he has encountered individuals during
traffic stops who concealed drugs in their underwear or body cavities.
Deputy Porter was suspicious that drug trafficking was afoot because it was the
middle of the night, the SUV was traveling “on Highway 441, which is the most direct
route from Atlanta,” and Appellant had a Georgia license plate. J.A. 88. Deputy Porter
testified that, based on his experience and training, “Atlanta [is] commonly known as a
major drug hub or distribution center for drugs coming into” the district. Id. Deputy Porter
instructed Appellant to exit the vehicle. At that point, Deputy Levi Woodring (“Deputy
Woodring”) arrived. Although Deputy Porter testified that part of the reason he initiated
the traffic stop was suspicion of Appellant driving under the influence, Deputy Porter did
not ask Appellant to perform any sobriety tests.
Deputy Porter testified that neither Appellant nor Parton initially appeared more
nervous than the average person during a traffic stop. However, according to Deputy
Porter, once Appellant exited the vehicle, his “whole demeanor changed.” J.A. 90.
Appellant began fidgeting, shifting his feet from side to side, and would not stand still.
Appellant’s forehead also began to sweat even though it was “cool at that time” and in the
“high 50s.” Id.
Deputy Woodring called the driver’s license numbers for both Appellant and Parton
into a dispatcher. In the meantime, Deputy Porter asked Appellant “where he was going,
where he was coming from, and how he knew” Parton. J.A. 91. During the suppression
hearing, Deputy Porter was unable to recall where Appellant said he was coming from but
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testified that Appellant stated he was headed to a cabin on Olivet Church Road. Appellant
also informed Deputy Porter that he met Parton at “the casino” which Deputy Porter
interpreted to be “Harrah’s Cherokee” Casino and Resort (“Harrah’s”) in Cherokee, North
Carolina. Id. at 91–92. Deputy Porter testified that Appellant’s answers caused him to be
suspicious because Deputy Porter “worked in security at the casino for five years, and [he
knew] that a majority of the drugs that were located at the casino were transported from
Atlanta, Georgia.” Id. at 92. Appellant’s SUV had a Georgia plate, but his driver license
contained an address in Calhoun, Georgia, rather than Atlanta. Calhoun is located over an
hour outside of Atlanta. Moreover, Deputy Porter admitted that Appellant “could not have
come from Harrah’s in the direction that [he] w[as] traveling.” Id. at 136–37.
Deputy Porter then went to the passenger side of the car to speak with Parton.
According to Deputy Porter, Parton became “a little more nervous,” “wouldn’t make eye
contact with [him],” and began “looking inside the vehicle as if she was making sure
something was hid[den].” J.A. 94. Deputy Porter acknowledged that it was normal for
drivers or passengers to avoid eye contact. Nevertheless, Deputy Porter asserted that
“[p]assengers normally aren’t very nervous because they’re not involved in any kind of
violation or punishment that’s going to be handed down from, like, a citation.” Id. When
asked how she knew Appellant and where the two were traveling, Parton provided
responses consistent with Appellant’s answers. When asked why her pants were unzipped,
Parton said she had recently used the restroom and must have forgotten to zip her pants.
Deputy Porter found this response suspicious because “at that time of the morning[,] there
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is nowhere open to use the restroom.” Id. at 95. However, Deputy Porter acknowledged
that Parton could have used the restroom at a private residence.
After speaking with Parton, Deputy Porter again approached Appellant, asked
whether there was anything illegal inside the SUV, and requested permission to search the
vehicle. Appellant “became upset and angry,” refused to consent to a search of the SUV,
and stated that he “didn’t want anyone looking inside his vehicle.” J.A. 96–97. According
to Deputy Porter, Appellant’s change in tone led him to believe Appellant “was trying to
conceal something within his vehicle.” Id. at 96. Deputy Porter asserted that “most
drivers” don’t get upset when he asks if he can search their vehicle as “[m]ost people just
want to know why I want to look in their vehicle.” Id. at 97.
At 2:50am, dispatch informed Deputies Woodring and Porter that both Appellant
and Parton’s driver’s licenses were suspended, and that Appellant had two outstanding
criminal summonses in Jackson County, North Carolina. Neither Appellant nor Parton had
any outstanding arrest warrants. At this time, “[Deputy] Porter suspected that illegal drugs
may have been in the car and believed he had reasonable suspicion of illegal drug activity
authorizing him to extend the traffic stop.” Appellee Resp. Br. at 6. After speaking with
Appellant and hearing back from dispatch, Deputy Porter contacted Senior Deputy Megan
Rinehart (“Deputy Rinehart”) and requested that she come to the scene with her K9 partner,
a canine certified and trained to detect the odor of drugs.
While awaiting the K9 unit, Deputy Porter returned to his patrol vehicle and began
preparing a citation for the offenses of driving without a license and crossing the fog line.
The citation is a single-page document that merely required Deputy Porter to fill in blanks
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and check boxes. Deputy Porter testified it took him five to ten minutes to prepare this
citation. Then Deputy Porter “got on to the NCWR[ 2] system” and looked up Appellant’s
active criminal summonses. J.A. 102. According to Deputy Porter, he had to “find a new
court date for [one of the summonses] because the original [court date] had already passed.”
Id. At 103. Next, Deputy Porter testified that “[d]ue to [Appellant] being with a local
female,” he “also ran [Appellant] through our database system . . . to ensure he didn’t have
any kind of child support purges[ 3] active or any kind of civil suit against him that needed
to be served.” Id. at 103–04. In this regard, Deputy Porter explained, “[A]s me being a
county officer, we also do civil stuff. So we check to make sure that none of those need to
be served.” Id. at 146. According to Deputy Woodring, however, the normal procedure
for a traffic stop does not include anything more than completing the single-page citation,
which is a fill-in-the-blanks, check-the-boxes format, and checking for active warrants and
summonses.
At approximately 3:05am -- 19 minutes after the traffic stop was initiated and 14
minutes after Deputy Porter began preparing the citation -- Deputy Rinehart and the K9
arrived on scene. Deputy Rinehart first approached Deputy Porter’s vehicle without her
dog. Deputy Porter informed her that he “suspected there to be illegal narcotics within the
vehicle and [asked her] if she would run her dog.” J.A. 148. Deputy Rinehart spoke with
2 “NCWR” refers to North Carolina’s statewide warrant repository. 3 An individual may be found in contempt of a child support obligation. See N.C. Stat. § 50-13.4(f)(9). Thereafter, the individual may be required to “purge” himself or herself of the contempt. N.C. Stat. § 5A-21(a)–(b2).
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Deputy Porter for approximately two minutes before returning to her vehicle to retrieve the
K9.
According to Deputy Porter, when Deputy Rinehart began conducting the dog sniff,
Deputy Porter “was finishing up [his] paperwork in [his] vehicle.” J.A. 106. Deputy
Rinehart testified that as she passed by Porter’s car with the K9, Deputy Porter was
“transmitting through his radio” as well as “looking stuff up on his computer through our
system.” Id. at 197. Deputy Rinehart explained that the dog sniff required her to take the
dog around the car twice, once in each direction. Deputy Rinehart testified that “less than
five minutes” passed between the time she retrieved the K9 from her vehicle and the time
the dog completed two passes around the SUV. Id. at 199. It then took Deputy Rinehart
“less than two minutes” to walk back to the car, put the dog in the vehicle, and walk back
to Deputy Porter. Id. at 202.
According to Deputy Porter, while the dog sniff was being carried out, he
approached Appellant and “informed him [of] the citations that [Deputy Porter] issued.”
J.A. 110–11. Deputy Porter “explained to [Appellant] why they were being issued to him
and then what they entailed.” Id. at 111. Deputy Porter “also explained to [Appellant] his
court date” and, “since [Appellant] wasn’t a local, . . . where the courthouse was located.”
Id. Then Deputy Porter read the two criminal summonses aloud to Appellant -- word for
word. Deputy Porter testified, “[W]henever we serve a criminal summons on somebody[,]
we have to read the offense in its entirety, and I informed him his court dates on that.” Id.
at 111. However, Deputy Woodring testified that the procedure for serving a criminal
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summons is simply to print out the summons and give it to the person being cited. Deputy
Porter took approximately five minutes to deliver the citation and summonses to Appellant.
Deputy Porter “was still explaining the citations and criminal summonses to
[Appellant] as Deputy Rinehart was walking back to her vehicle” after the K9 sniff was
complete. J.A. 112. Deputy Rinehart testified that, as she was returning the K9 to her
vehicle, Deputy Porter “was still actively talking” to Appellant. Id. at 200. Deputy
Rinehart did not tell Deputy Porter the result of the dog sniff at that time as her procedure
is to “have my dog put in the car before I even have a conversation with the officer and let
him know what’s going on.” Id. at 201.
Once Deputy Porter finished explaining the citations and reading the summonses in
detail, word for word, to Appellant -- which was approximately 26 minutes after the traffic
stop was initiated and 22 minutes after Deputy Porter first began preparing the citations --
Appellant asked, “Am I free to go?” J.A. 122. Deputy Porter informed Appellant that he
could not leave because they “were going to have to wait to see if the K9 had alerted on
his vehicle.” Id. at 113–14. Porter then continued the stop for “roughly a minute” while
“wait[ing] for Deputy Rinehart to come back to inform [them of] the result of the sniff.”
Id. at 114–15.
When Deputy Rinehart returned, she informed Deputy Porter that the dog had
responded with a positive alert to the driver’s side door seam. Deputies Porter and
Woodring then searched the SUV and found a small plastic bag containing approximately
1.4 ounces of crystal methamphetamine and digital scales under the front passenger seat.
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At approximately 3:29am, the deputies handcuffed Appellant and Parton, placed them in
separate patrol vehicles, and called a tow truck for the car. 4
Appellant informed Deputy Porter that he would like to speak to him. After being
read his Miranda rights, Appellant claimed that “all the drugs were his and that [Parton]
had no reason to go to jail.” J.A. 117. The deputies then transported both Appellant and
Parton to jail. During a strip search at the jail, officers located a container of pills concealed
in Parton’s vagina. 5
B.
On August 4, 2020, a federal grand jury returned a one-count indictment against
Appellant for possession with intent to distribute a quantity of methamphetamine in
violation of 21 U.S.C. § 841(a)(1). Appellant subsequently filed a motion to suppress the
evidence obtained from the search of the SUV, as well as his statements to law
enforcement. Appellant argued that the traffic stop was unlawful because it had been
“‘prolonged beyond the time reasonably required to complete [the] mission’ of issuing a
warning ticket.” J.A. 15 (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). The
4 Since neither Appellant nor Parton had a valid operating license, it is possible that officers would have inevitably found the drugs during an inventory search of the towed vehicle. See United States v. George, 971 F.2d 1113, 1121 (4th Cir. 1992). But it’s the government’s burden to prove the inevitable-discovery doctrine applies. United States v. Edwards, 666 F.3d 877, 887 (4th Cir. 2011). The government did not advance the argument before the district court or on appeal, so we will not consider it here. Id.
Appellant admitted that the methamphetamine and scales were his, and the 5
Government declined to charge Parton.
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Government responded that “[t]he K9 sniff did not improperly extend the vehicle stop
because it was completed prior to the completion of the vehicle stop.” Id. at 41.
On May 13, 2021, the district court held a suppression hearing wherein Deputies
Porter, Woodring, and Rinehart testified. Following the hearing, the district court denied
Appellant’s motion. Thereafter, Appellant entered a conditional guilty plea, preserving his
right to appeal the district court’s denial of the motion to suppress. Appellant timely
noticed this appeal.
II.
“[W]e review the factual findings underlying the district court’s [denial of a] motion
to suppress for clear error and its legal conclusions de novo.” United States v. Medley, 34
F.4th 326, 332 (4th Cir. 2022). In doing so, we view “the evidence in the light most
favorable to the government,” the party that prevailed in the district court. United States
v. Abdallah, 911 F.3d 201, 209 (4th Cir. 2018).
III.
“The Fourth Amendment protects ‘[t]he right of the people to be secure in their
persons . . . against unreasonable searches and seizures.’” United States v. Black, 707 F.3d
531, 537 (4th Cir. 2013) (alterations in original) (quoting U.S. Const. amend IV). “A traffic
stop constitutes a ‘seizure’ under the Fourth Amendment and is thus subject to a
reasonableness requirement.” United States v. Williams, 808 F.3d 238, 245 (4th Cir. 2015)
(citing Whren v. United States, 517 U.S. 806, 810 (1996)). Here, Appellant “does not
challenge the initial traffic stop.” J.A. 265. As a justified stop, Deputy Porter was
permitted to ask Appellant to exit his vehicle, see Maryland v. Wilson, 519 U.S. 408, 412
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(1997), and to “detain the offending vehicle for as long as it [took] to perform the traditional
incidents of a routine traffic stop,” United States v. Branch, 537 F.3d 328, 335 (4th Cir.
2008).
But “[a]uthority for the seizure . . . ends when tasks tied to the traffic infraction
are—or reasonably should have been—completed.” Rodriguez v. United States, 575 U.S.
348, 354 (2012). This allows officers to conduct “ordinary inquiries incident to” traffic
stops, including “checking the driver’s license, determining whether there are outstanding
warrants against the driver, and inspecting the automobile’s registration and proof of
insurance.” Id. at 355 (internal quotation marks omitted). And while the Fourth
Amendment “tolerate[s] certain unrelated investigations that [do] not lengthen the roadside
detention,” the seizure becomes unlawful if unrelated inquiries “measurably extend the
duration of the stop.” Id. at 354–55 (internal quotation marks omitted). In other words,
while an officer “may conduct certain unrelated checks during an otherwise lawful traffic
stop, . . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion
ordinarily demanded to justify detaining an individual.” Id. at 355 (internal citation
omitted). A stop can also be extended if the driver consents. See Williams, 808 F.3d at
245. But here, the Government concedes Appellant did not consent to a search.
“A dog sniff around the vehicle’s perimeter for the purpose of detecting narcotics
‘is not an ordinary incident of a traffic stop.’” United States v. Bowman, 884 F.3d 200, 210
(4th Cir. 2018) (quoting Rodriguez, 575 U.S. at 355) (emphasis supplied). Therefore, if
Deputy Porter did slow walk or prolong the stop to allow time for completing a dog sniff,
he would have needed reasonable suspicion at the time the search was prolonged.
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Appellant argues that Deputy Porter improperly prolonged the traffic stop both
before and after the K9 completed its sniff. The district court concluded that “the use of
the K9 in this case did not measurably extend the duration of the stop” because the dog
sniff took place before Deputy Porter had completed the traffic stop and “Deputy Porter
only took the amount of time reasonably required to complete the stop’s mission.” J.A.
269–71. The district court went on to hold, “Deputy Porter was entitled to find out the
results of the dog sniff before letting [Appellant] go.” Id. at 272. Notably, the district court
did not cite any authority supporting this proposition. Appellant argues that Deputy Porter
improperly prolonged the traffic stop both before and after the K9 completed its sniff.
On appeal, the Government does not deny that Deputy Porter prolonged the stop.
Rather, the Government asserts, “The Fourth Amendment authorized Deputy Porter to
prolong the stop to investigate further with the help of a trained drug dog.” Appellee Resp.
Br. at 22; see also, Oral Argument at 15:09–15:16, United States v. Podbielski, No. 22-
4084 (4th Cir. March 22, 2023), http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-
arguments [hereinafter “Oral Argument”] (“If there is no reasonable suspicion, then we
lose.”). The Government claims that Deputy Porter was “authorized . . . to extend the stop
to investigate further with the assistance of a trained drug dog because, when [Deputy
Porter] called for that assistance, he had reasonable suspicion that illegal drug crime may
be afoot.” Appellee Resp. Br. 20.
While the Government concedes that Deputy Porter prolonged the stop, we begin
there to explain why the concession is well taken. We have held that officers must
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“execute[] their tasks with reasonable diligence,” and may not prolong the stop “for
purposes beyond the mission of the stop.” United States v. Hill, 852 F.3d 377, 383 (4th
Cir. 2017). “The maximum acceptable length of a routine traffic stop cannot be stated with
mathematical precision.” Branch, 537 F.3d at 336. Rather, we conduct a contextual review
to determine “whether the detention lasted longer than was necessary, given its purpose.”
Id.
In Hill, we explained that “an officer’s decision to execute a traffic stop in a
deliberately slow or inefficient manner, in order to expand a criminal investigation within
the temporal confines of the stop without reasonable suspicion” could compel a conclusion
that the officer has violated the Fourth Amendment. 852 F.3d at 384. Here, several actions
taken by Deputy Porter were outside the “mission of the [subject] stop” and without
reasonable suspicion. Id. at 383.
First, Deputy Porter readily concedes that during the traffic stop, he accessed the
Jackson County court calendar, obtained a new date of appearance, and modified one of
Appellant’s active criminal summonses. Appellant asserts that Deputy Porter’s action in
modifying the summons not only delayed the stop, but it also violated North Carolina
General Statute § 15A-301.1(d), which provides, “Any criminal process in the Electronic
Repository shall be a part of the official records of the clerk of the superior court of the
county for which it was issued and shall be maintained in the office of that clerk.”
Specifically, Appellant argues that while law enforcement officers are authorized to print
and serve criminal summons and enter tracking information, they are not authorized to alter
electronic criminal processes. Id. at §§ 15A-301.1(e), (g). The Government offers no
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argument to the contrary, nor does it attempt to defend Deputy Porter’s actions in slow
walking this process.
Second, Deputy Porter searched for unrelated civil summonses, including any
contempt orders for failure to meet child support obligations. But the purpose of a traffic
stop is to “ensur[e] that vehicles on the road are operated safely and responsibly.”
Rodriguez, 575 U.S. at 355. While a check for outstanding criminal warrants “serve[s] the
same objective” by helping the officer “determine whether the apparent traffic violator is
wanted for one or more previous traffic offenses,” a check for outstanding civil obligations
lacks “the same close connection to roadway safety.” Id. Though Deputy Porter testified
these checks were justified “[d]ue to [Appellant] being with a local female,” J.A. 103–04,
it is unclear why the presence of a “local female” necessitates this additional, time-
consuming research. The Government offers no explanation for this, and we certainly have
not held that an officer can prolong a stop to investigate potential child support obligations
simply because a female passenger is present in the vehicle with a male driver. If the driver
were female with a male passenger, would Deputy Porter still use this reasoning as a
purported excuse to prolong the traffic stop? Doubtful.
Third, even though North Carolina law does not require it (and his fellow officer
disavowed that it was standard procedure), Deputy Porter read Appellant’s criminal
summonses and the traffic citation to Appellant -- word for word. See N.C. Gen. Stat.
§ 15A-301(c)(1) (“Upon execution or service, a copy of the process must be delivered to
the person arrested or served.”). We do not suggest that an officer always offers
information to a motorist at his peril. But Deputy Porter’s decision here to (1) dedicate an
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additional five minutes to painstakingly read and explain the documents and (2) take more
time to tell Appellant where the courthouse was located, informs the Fourth Amendment
analysis.
Fourth, Deputy Porter further extended the stop when he paused his ticket-writing
duties to speak with Deputy Rinehart about the K9 search. Rodriguez, 575 U.S. at 357.
While the conversation lasted “[l]ess than two minutes,” even a de minimis delay can
violate the Fourth Amendment. See Williams, 808 F.3d at 246–47; see also id. at 247
(“nearly three-minute extension” of stop to conduct a dog sniff required reasonable
suspicion or consent).
The district court acknowledged that that Deputy Rinehart “checked in with Deputy
Porter to see what he had” when she arrived at the scene, J.A. 269, but excused the delay
because “the dog sniff took place, in its entirety, before Deputy Porter completed the stop,”
J.A. 272. But it does not follow that an officer can detour from his traffic-stop tasks to
orchestrate a dog sniff so long as the sniff concludes before he finishes the stop. Indeed,
the “critical question . . . is not whether the dog sniff occurs before or after the officer issues
a ticket,” but whether the sniff “adds time to the stop.” Rodriguez, 575 U.S. at 357. Here,
the sniff added—at a minimum—the time it took Deputy Porter to brief Deputy Rinehart.
Finally, Deputy Porter prolonged the stop when he finished issuing the citation but
required Appellant to wait for the results of the dog sniff. It is undisputed that the traffic
stop was over when Appellant asked to leave, but Rinehart took “roughly a minute” to put
the dog back and report the positive alert to Porter. J.A. 115. A faithful reading of
Rodriguez suggests that this extra time also “add[ed] time to” the stop. See 575 U.S. at
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357. The district court found (without citing any authority) that this delay did not count
because “Porter was entitled to find out the results of the dog sniff before letting Defendant
go.” J.A. 272. But there is no limiting principle to this notion. Could an officer, without
reasonable suspicion or consent, detain a subject roadside for an hour while awaiting the
results of another investigation? Rodriguez’s answer is no.
Considering all of the above, there is no doubt that Deputy Porter prolonged this
traffic stop.
The Government’s sole argument on appeal is that “[t]he Fourth Amendment
authorized Deputy Porter to extend the stop to allow Deputy Rinehart and [the K9] to
conduct a dog sniff because he had a ‘reasonable, articulable suspicion of ongoing criminal
activity’ under the ‘standard articulated in Terry v. Ohio, 392 U.S. 1 (1968).’” Appellee
Resp. Br. 24 (quoting United States v. Palmer, 820 F.3d 640, 648–50 (4th Cir. 2016)).
To establish reasonable suspicion, “a police officer must simply point to specific
and articulable facts which, taken together with rational inferences from those facts, . . .
evince more than an inchoate and unparticularized suspicion or hunch of criminal activity.”
Branch, 537 F.3d at 336 (internal citation and quotation marks omitted)). “[T]he level of
suspicion the standard requires is considerably less than proof of wrongdoing by a
preponderance of the evidence, and obviously less than is necessary for probable cause.”
Kansas v. Glover, 140 S. Ct. 1183, 1187 (2020).
In evaluating reasonable suspicion, we look “at the totality of the circumstances of
each case to see whether the detaining officer has a particularized and objective basis for
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suspecting legal wrongdoing.” Williams, 808 F.3d at 246 (quoting United States v. Arvizu,
534 U.S. 266, 273 (2002)). We must “separately address each of” the officer’s asserted
factors “before evaluating them together with the other circumstances of the traffic stop.”
Bowman, 884 F.3d at 214 (quoting United States v. Powell, 666 F.3d 180, 187–88 (4th Cir.
2011)). The detaining officer must 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.” Williams, 808 F.3d at 246 (quoting United States v. Foster, 634 F.3d 243, 248
(4th Cir. 2011)). And, critically, the facts provided must “serve to eliminate a substantial
portion of innocent travelers.” Id. (quoting United States v. McCoy, 513 F.3d 405, 413 (4th
Cir. 2008)).
Here, the Government identifies several factors it claims provided Deputy Porter
with reasonable suspicion of criminal activity. We address each in turn and then consider
their cumulative effect. Even viewing the evidence in the light most favorable to the
Government, we conclude that Deputy Porter lacked reasonable suspicion to prolong the
1.
The Government points first to the fact that, prior to the stop, Appellant slowed his
vehicle “in an effort to evade Deputy Porter’s effort to maneuver his car behind
[Appellant’s].” Appellee Resp. Br. at 26. We have noted that “evasive reactions to the
presence of police may be considered in determining whether reasonable suspicion exists
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for an investigatory stop.” United States v. Smith, 396 F.3d 579, 584 (4th Cir. 2005). 6
Here, Deputy Porter testified that Appellant slowing down to avoid passing a police officer,
coupled with crossing the center and fog lines, made him suspect that Appellant was
possibly intoxicated. Yet, upon initiating the traffic stop, Deputy Porter did not detect the
odor of alcohol or conduct any sobriety tests. Standing alone then, Appellant’s deceleration
fails to supply reasonable suspicion to extend the stop.
Second, the Government relies on Deputy Porter’s assertion that Parton was
“look[ing] inside the vehicle as if making sure something was hidden.” Appellee Resp. Br.
at 27 (citing J.A. 94, 100). Deputy Porter testified that Parton’s conduct was unusual,
particularly for a passenger.
Appellant argues that as a Native American woman, Parton was likely avoiding eye
contact as a sign of respect, and Porter’s interpretation to the contrary demonstrates implicit
bias. Appellant Opening Br. at 46–47. See Drakeford, 992 F.3d at 267 (Wynn, J.,
concurring) (criticizing deference to officers’ “training and experience” to establish
reasonable suspicion, as “one behavioral effect of implicit bias is that it influences how
individuals interpret the ambiguous behaviors of others” (quoting L. Song Richardson,
6 At least one of our sister circuits has cautioned that “a driver’s preoccupation with a police vehicle following him is a quite natural reaction and was held to be insufficient to justify an investigatory stop.” United States v. Jimenez-Medina, 173 F.3d 752, 755 (9th Cir. 1999) (quotation marks omitted); see also Clinton v. Garrett, 551 F. Supp. 3d 929, 944 (S.D. Iowa 2021) (“[A] nervous reaction to police presence, without more, is insufficient to generate reasonable suspicion.”).
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Police Efficiency and the Fourth Amendment, 87 Ind. L.J. 1143, 1148 (2012) (alteration
omitted)). But the record here does not suggest that Deputy Porter viewed Parton’s lack
of eye contact as grounds for reasonable suspicion. 7 Rather, it was Parton’s eye movements
in “looking inside the vehicle as if she was making sure something was hid[den]” that
Deputy Porter testified he found suspicious. J.A. 94.
Thus, this factor tilts in Deputy Porter’s favor.
c.
The Government next relies on Deputy Porter’s observation that Parton’s pants were
“completely unzipped” as a basis for reasonable suspicion of drug trafficking. J.A. 87.
Deputy Porter asserts that based on his experience, this suggested Parton was concealing
drugs in her underwear or body cavity. Deputy Porter testified that he found Parton’s
explanation for her unzipped pants -- that she had used the restroom and must have
forgotten to zip them -- suspicious because, “at that time of the morning there is nowhere
open to use the restroom.” Id. at 95. While it is within the realm of possibility that Parton
used the restroom at a private residence or even by the roadside, an officer “need not rule
out the possibility of innocent conduct.” Glover, 140 S. Ct. at 1188 (quoting Navarette v.
California, 572 U.S. 393, 403 (2014)).
But this basis for reasonable suspicion -- and much of Deputy Porter’s other
testimony pertaining to his purported experience and training -- could not have been relied
7 Indeed, we have held “[t]here is nothing intrinsically suspicious or nefarious about the occupant of a vehicle not making eye contact with an officer during a traffic stop.” Bowman, 884 F.3d at 215.
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upon by Deputy Porter at the time of the traffic stop because it rests upon experience
purportedly gleaned by Deputy Porter in the two years after Appellant was stopped by
Deputy Porter.
The suppression hearing in this case occurred two years after the traffic stop at issue.
At the time Deputy Porter testified at the suppression hearing, he had been working as a
law enforcement officer for almost five years, with the first six months spent working as a
bailiff. This means that, at the time Deputy Porter initiated the traffic stop in of Appellant,
he had only been working as a patrol deputy for approximately two and a half years. Yet
during the suppression hearing, Deputy Porter failed to anchor his testimony on his
experience at the time of the stop, as opposed to at the time of the hearing. See J.A. 88 (Q:
“And had you encountered individuals during past stops, male or female, where they had
concealed drugs on their person, such as in their underwear?” A: “Yes, sir, I sure have”)
(emphasis supplied); see also id. at 89 (“And had you ever previously encountered a female
who had concealed drugs insider her vagina?” A: “Yes, sir, I sure have”) (emphasis
supplied). Therefore, it is impossible to tell from Deputy Porter’s testimony whether he
had the requisite experience to justify reasonable suspicion at the time of the traffic stop.
d.
The Government also points to the change in Appellant’s demeanor when Deputy
Porter asked to search the SUV as supplying reasonable suspicion to prolong the stop. First
and foremost, Appellant had a constitutional right not to consent to a search and asserting
that right must not be held against him as a basis for reasonable suspicion. See United
States v. Massenburg, 654 F.3d 480, 491 (4th Cir. 2011) (“If the ordinary response of the
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innocent upon being asked to consent to a search . . . sufficed to create reasonable suspicion,
then Terry’s reasonable suspicion requirement would become meaningless: officers could
ask a citizen for permission to conduct a voluntary search, and, if denied, they could use
the citizen’s denial as evidence of criminal activity and perform the search anyway.”).
As to Appellant’s nervous demeanor, nervousness itself is “not a particularly good
indicator of criminal activity, because most everyone is nervous when interacting with the
police.” Bowman, 884 F.3d at 214 (internal quotation marks omitted). However, Deputy
Porter testified that Appellant exhibited “signs of nervousness above the norm,” id.,
including sweating when the weather was cool, shifting feet from side to side, and
becoming upset in response to questions about whether his car contained anything illegal.
And we have previously held that “sweating profusely on a cold day, hands shaking, . . .
and increased agitation when asked routine questions” are indicative of “exceptional
nervousness” contributing to reasonable suspicion. United States v. Foreman, 369 F.3d
776, 785 (4th Cir. 2004) (citation omitted). While it is possible that Appellant was simply
nervous because he had been asked for his driver’s license -- which was suspended -- we
credit Deputy Porter’s assessment that Appellant was exceptionally nervousness and that
this observation was indicative of criminal activity.
e.
Finally, the Government cobbles together an assortment of additional facts as
asserted bases for reasonable suspicion, such as Appellant driving in the early morning on
Highway 441, which Deputy Porter testified is the most direct route from Atlanta (a major
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source for drugs); having a Georgia license plate and registration; and traveling with a local
passenger. 8
Of note, Highway 441 is one of only two highways in the area. And in Williams,
we rejected the notion that traveling “on a known drug corridor at 12:37 a.m.” could
contribute to reasonable suspicion given that “the number of persons using the interstate
highways as drug corridors pales in comparison to the number of innocent travelers on
those roads,” and “we [were] not persuaded by the proposition that traveling south on I-85
late at night helps narrow the identification of travelers to those involved in drug activity.”
808 F.3d at 247. As we held in Williams, “it is far from self-evident that interstate
trafficking of drugs or other contraband is more common at night.” Id. at 249. Thus, absent
evidence that “drug traffickers have some disproportionate tendency” to travel on Highway
441 “late at night,” this factor does not support reasonable suspicion. Id. at 248.
Further, Appellant simply driving a vehicle with a Georgia license plate and
registered to a Georgia citizen is not a basis to provide Deputy Porter with reasonable
suspicion of drug trafficking. Citing United States v. Villavicencio, 825 F. App’x 88, 97–
98 (4th Cir. 2020), the Government argues that Georgia is “a source state for narcotics” to
8 The Government also now claims that the fact that Appellant and Parton met at Harrah’s casino, a “location that [Deputy Porter] knew had a connection with drugs imported from Georgia,” Appellee Resp. Br. at 33 (citing J.A. 91–92), contributed to Deputy Porter’s reasonable suspicion of drug trafficking. Significantly, however, when Deputy Porter testified during the suppression hearing as to which factors caused him “to call in the K9 in this case,” this fact was not mentioned. J.A. 100. And “[i]t is ‘the police officer’ who ‘must be able to point to specific and articulable facts’—not a party’s brief.” United States v. Peters, 60 F.4th 855, 864 (4th Cir. 2023) (quoting Terry, 392 U.S. at 21) (emphasis in original). Thus, this late-breaking rationale does not hold weight.
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which Highway 441 was connected providing some indicia of reasonable suspicion. First,
Villavicencio is unpublished and, therefore, not precedential. Beyond that, Deputy Porter
himself could not recall from where Appellant was traveling. See J.A. 91 (“I don’t recall
where [Appellant] told me he was coming from.”). So while Appellant had a Georgia
registration, he may not have been coming from Georgia at the time of the stop. At bottom,
simply having a Georgia license plate and registration does nothing to “eliminate a
substantial portion of innocent travelers,” and thus does not provide reasonable suspicion.
Williams, 808 F.3d at 246.
Additionally, Deputy Porter failed to provide any explanation for how or why the
presence of a “local female” provides reasonable suspicion of drug trafficking. Surely
males and females traveling together would include a “substantial portion of innocent
travelers.” Id.
2.
Having reviewed each fact individually, we next consider the totality of the
circumstances, as reasonable suspicion “may well ‘exist even if each fact standing alone is
susceptible to an innocent explanation.’” Palmer, 820 F.3d at 652 (quoting McCoy, 513
F.3d at 413–14).
Once we eliminate the facts that are reasonably attributable to innocent travelers, or
are improper for consideration, we are left with very little. What remains is Appellant’s
nervousness after being pulled over while driving on a suspended license and Parton’s
unzipped pants. This is countered by Deputy Porter’s failure to account for potentially
innocent explanations (such as Parton having just gone to the bathroom), or facts that might
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dispel reasonable suspicion (such as the consistent responses provided by Appellant and
Parton about where they were headed). See Drakeford, 992 F.3d at 263 (stating that, when
reviewing the totality of the circumstances, we include “the presence of additional facts
[that] might dispel reasonable suspicion”). Therefore, we conclude that Deputy Porter did
not possess reasonable suspicion of drug trafficking in order to prolong the search.
In essence, what remains is nothing more than a “hunch” on the part of Deputy
Porter. And this is not enough to overcome the protection of the Fourth Amendment. See
United States v. Sokolow, 490 U.S. 1, 7 (1989) (reasonable suspicion requires the
government to “articulate something more than an inchoate and unparticularized suspicion
or hunch” (internal quotation marks omitted)). Rather, the record suggests that when
Deputy Porter -- with experience working at Harrah’s -- heard Appellant and Parton met at
the casino, he immediately viewed them as drug dealers. As we admonished in Drakeford,
“The Fourth Amendment does not allow the Government to label a person as a drug dealer
and then view all of their actions through that lens.” 992 F.3d at 264.
Ultimately considering the totality of the circumstances, we conclude that Deputy
Porter lacked reasonable suspicion. And as the Government has conceded, “If there is no
reasonable suspicion, then we lose.” Oral Argument at 15:09–15:16.
IV.
Appellant’s conviction is vacated and the district court’s denial of Appellant’s
motion to suppress is reversed and remanded.
REVERSED, VACATED, AND REMANDED