UNITED STATES OF AMERICA v. BRIAN BOWMAN
US Court of Appeals for the Fourth Circuit, Traxler, March 1, 2018,
Seizure – Telling a driver to “just hang tight right there, okay?” created a seizure when the circumstances suggested that a reasonable driver would not feel like he had a choice

For some reason, the government decided not to do anything more than mention the DEA tip… which would have “tipped” the scales in favor of RAS, even if it was baseless

Facts:
In 2015 at about 3:40 in the morning, a North Carolina State Trooper conducted a traffic stop for speeding and weaving over a fog line in the road.
The vehicle was occupied with a driver, later identified as Brian Bowman, and a front passenger.
The Trooper testified that the driver appeared to be nervous because his hands were shaking when he handed over his vehicle registration and driver’s license. The Trooper stated that the passenger “was continually staring straight ahead” rather than looking at him.
The Trooper testified that he saw “movement” in the carotid arteries of both the driver and passenger, further causing him to believe that they were nervous. However, on cross-examination the Trooper admitted that he
There were various items in the car, including an energy drink in the front seat console, food and food wrappers in the front seat, and a suitcase and loose items of clothing in the back seat. According to the Trooper, the presence of these items suggested that the two occupants “could have been possibly traveling for a . . . long period of time, and in a hurry to get from one location to another.”
The Trooper asked the driver to step back to his patrol car so that his information could be checked. On the way back to the cruiser, the driver gave consent to a frisk with negative results.
Meanwhile, the passenger in the car was moving around and looking back toward them. The Trooper testified that this was an indicator of nervousness, but did not explain the significance of the passenger’s movement within the vehicle.
Back at the cruiser, the driver’s information was checked and cleared. The Trooper asked the driver about the passenger, where they were going, and where they were coming from. The driver explained that the passenger was a friend to whom he owed a favor and that he had just picked him up from his girlfriend’s house because his friend’s car wasn’t legal. The Trooper asked where the girlfriend lived, but the driver did not know the address. The driver informed the Trooper that the address was stored in the GPS in his car.
The driver said that he had recently bought the Lexus and was having difficulty with the alignment. The driver stated that he buys cars off Craigslist. The Trooper testified that this was suspicious because drug dealers frequently use multiple cars to transport narcotics.
The Trooper issued Bowman a warning, returned his license, and shook his hand.
As Bowman was getting out of the patrol vehicle, the Trooper asked if he could speak with him a bit more. The driver agreed and stayed in the patrol car.
After answering a few more questions, the Trooper said that he was going to speak with the passenger. As the Trooper got out of his patrol car, the driver did as well. The Trooper then said “just hang tight right there, okay?”
The Trooper later testified that the driver was not free to leave.
When the passenger’s story was inconsistent with the driver’s story, the Trooper asked for consent to search the vehicle. When the driver refused, k9 was called to the scene. After an alert, methamphetamine and ammunition was recovered from the vehicle.
Bowman, the driver, challenged the recovery of evidence from the car.
A federal magistrate upheld the recovery, finding that the Trooper seized Bowman prior to the search but that he had reasonable suspicion to do so.
Bowman was convicted and appealed, arguing that the seizure was illegal.

Held: The Fourth Circuit held that Bowman was seized when the Trooper told him to “hang tight right there.” Because the trooper did not have RAS at that point, the seizure was illegal and everything that came after it was also illegal.

Traffic Stop – A lawful traffic stop “can become unlawful if it is prolonged beyond the time reasonably required to complete the mission” of issuing a ticket or warning

Traffic Stop – Authority to seize a driver and vehicle end when “tasks tied to the traffic infraction are—or reasonably should have been—completed.”

Traffic Stop – These traffic-infraction-related tasks include: inspecting a driver’s identification and license to operate a vehicle, verifying the registration of a vehicle, verifying existing insurance coverage, and determining whether the driver has any outstanding warrants

Traffic Stop – An officer may engage in unrelated investigation as long as this investigation does not lengthen the stop

Note: An officer may engage in investigation without lengthening the stop by having another officer run the driver/vehicle information while the primary speaks to the driver/occupants

Traffic Stop – Illegal Seizure – After tasks related to the traffic stop are completed (or should have been by that point), an officer cannot continue to detain the driver/vehicle unless: 1) the traffic stop has completed and the driver has given consent to continue it or 2) the officer develops RAS of criminal activity

Consent – Consent to continue a car stop cannot be “coerced.” That is, the situation has to be one where a reasonable person would feel like they had a choice in deciding whether to stay or leave.

Seizure – A person is “seized” by the police when a reasonable (innocent) person wouldn’t feel free to leave.

Seizure – A law enforcement officer need not always “display an intimidating demeanor or use coercive language” for a suspect to believe he cannot decline an officer’s requests or otherwise terminate the encounter.

Seizure – Even if the officer “asks” for compliance instead of ordering it, a reasonable person might still feel like they had to do what the officer was “asking” them to do. If so, this creates a seizure.

From the Case: That the Trooper “technically phrased his statement to Bowman in the form of a question is not determinative on the issue of consent”

From the Case: Bowman was seized when he started to get out of the Trooper’s car and the Trooper told him to “hand right there, okay?” The Trooper “was not asking Bowman a question, as is evident from the fact that he did not wait for Bowman to respond or consent. Indeed, the Trooper testified at the hearing that at this point—before he questioned Alvarez—he had developed sufficient reasonable suspicion to detain Bowman and that Bowman was, in fact, ‘not free to get out of that police car to leave.'”

Reasonable Suspicion (RAS) – A continued traffic stop that is not made on the basis of consent must be justified due to reasonable suspicion of criminal activity

Continued Traffic Stop – RAS – RAS requires that a police officer offer ‘specific and articulable facts’ that demonstrate at least ‘a minimal level of objective justification’ in believing that crime is afoot

RAS – RAS is based on the totality of the circumstances. Even innocent-sounding activity, when combined, can add up to RAS. However, this combination of activity needs to actually indicate that crime is afoot. If the factors added up do not “eliminate a substantial portion of innocent travelers,” then there is not RAS.

From the Case: The Trooper justified the continued stop based on: (a) Bowman’s and Alvarez’s apparent nervousness; (b) the presence of a suitcase, clothes, food and an energy drink inside of the Lexus; (c) Bowman’s inability to supply Waycaster with the name and address of Alvarez’s girlfriend; and (d) Bowman’s statements that he had been laid off recently and that he had recently purchased the Lexus via Craigslist.

Nervousness – “a driver’s nervousness is not a particularly good indicator of criminal activity, because most everyone is nervous when interacting with the police”

Nervousness – “Absent signs of nervousness beyond the norm, we will discount the detaining officer’s reliance on nervousness as a basis for reasonable suspicion”

Practice Note: In order to make the court pay attention to nervousness, you need to articulate how that nervousness differs from how “most everyone is nervous when interacting with the police.” Rather than just saying “the suspect appeared nervous,” explain what they are doing, how common that behavior is among innocent people “nervous around the police”, and any concerns you might have regarding what that level of nervousness might mean.

From the Case: The Trooper focused on the “pulsing” of the carotid artery that he saw when he was speaking to the occupants of the vehicle as a sign of nervousness. However, he “did not explain how his observation of the carotid arteries in this case demonstrated nervousness beyond the norm.” The Fourth Circuit compared this to another case where the officer was able to explain that the suspect’s “carotid artery on his neck throbbing more noticeably than the thousands of people that he had stopped in the past.” Again, the key is to explain how the suspect’s behavior was different than a “normal, innocent person.”

Items in Vehicle – Fast-food wrappers and energy drinks in a vehicle, without more, do not provide RAS to believe that the suspect is transporting narcotics

From the Case: The Trooper stated that several items in the car caught his attention: an energy drink, food and food wrappers, a suitcase and some loose clothing. The Trooper testified that he believed this was significant in that it indicated that the two had been driving for longer than the 20-30 minutes indicated by the driver. The Fourth Circuit did not allow this to add to the RAS, however, because the Trooper failed to explain why it was reasonable to think that the food was recently consumed instead of thinking that Bowman was “a messy person and nothing more.”

False Statements – A false statement does add to RAS, but is not enough to establish RAS by itself without a connection to criminal activity

Lack of Memory – A driver’s failure to know the exact address he was coming from does not indicate RAS

From the Case: Where the driver said that he used GPS and that the address was in the GPS, it was unreasonable for the officer to add this to the RAS without trying to verify whether there was actually an address in the GPS. It is “perfectly consistent with innocent travel for a person to rely on a GPS system to navigate and still not know precisely where he had been.”

Vehicle Purchases – The fact that someone is unemployed does not, by itself, make purchase of a vehicle suspicious

From the Case: The fact that the driver admitted to buying a 1998 Lexus off of Craigslist did not establish RAS, even where the driver admitted that he was unemployed

Multiple Vehicles – Ownership of multiple vehicles can add a “little weight” to RAS, but does not establish it by itself.

RAS – Totality of the Circumstances – RAS involves taking all of the factors articulated by the officer and weighing them together to determine whether there are enough facts to make it reasonable to believe that crime is afoot

From the Case: “The fact that Bowman was driving a messy, 18-year-old car he purchased on Craigslist, even when viewed with all the other circumstances, is not indicative of criminal activity. The fact that Bowman appeared to be nervous initially adds little, given that law-abiding drivers commonly experience nervousness during a traffic stop. And, even combined with all of the other circumstances, Bowman’s alleged evasiveness about the where he had picked up Alvarez likewise would not tip the balance in favor of reasonable suspicion given that Bowman told the Trooper he was not familiar with the area but that the Trooper could see the location by looking at Bowman’s GPS unit.”

Traffic Stop – Canine Sniff – Even with no RAS, a K9 unit may conduct a sniff around a vehicle during a traffic stop.

Traffic Stop – Canine Sniff – A sniff cannot extend the duration of the stop unless there is consent or RAS of a separate crime.

From the Case: Because the Trooper did not have consent and did not have RAS to detain Bowman past the initial traffic stop, the K-9 sniff was the result of an illegal seizure. Thus, the evidence inside the car should have been suppressed.