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United States v. Green

United States Court of Appeals, Third Circuit

July 25, 2018


          Argued October 23, 2017

          On Appeal from the United States District Court for the Western District of Pennsylvania (3-13-cr-00016-001) District Judge: Honorable Kim R. Gibson

          Lisa B. Freeland, Esq., Christopher B. Brown, Esq. Kimberly R. Brunson, Esq. [ARGUED] Office of Federal Public Defender Counsel for Appellant

          Scott W. Brady, Esq., Rebecca R. Haywood, Esq., Michael L. Ivory, Esq. [ARGUED] Office of United States AttorneyCounsel for Appellee

          Before: GREENAWAY JR., NYGAARD and FISHER, Circuit Judges.


          FISHER, Circuit Judge.

         Following a traffic stop, police discovered approximately twenty pounds of heroin in the trunk of the car driven by Warren Charles Green, IV. Green appeals his resulting conviction, claiming that the traffic stop was both instigated and prolonged in violation of the Fourth Amendment. Finding no constitutional violation on either front, we will affirm the conviction.


         A. Factual Background

         This case involves three separate traffic stops, all performed by Pennsylvania State Trooper Michael Volk, that are arguably relevant to Green's constitutional claims. As a drug interdiction officer, Volk's duties largely consist of traveling on the Pennsylvania Turnpike in an unmarked cruiser to search for drugs, money, and weapons. Each of the stops occurred on the Turnpike in the vicinity of Somerset, roughly 70 miles east of Pittsburgh. The first stop involved two men with no further direct connection to the case. The latter two stops both involved Green. The Government argues that information Volk obtained during the first stop helped contribute to reasonable suspicion of Green's criminal activity during the final stop, which led to the heroin discovery.

         April 3, 2013

         Volk stopped a vehicle traveling eastbound on the Pennsylvania Turnpike. This stop did not involve Green, but rather two other men who, like Green, are black. The men had a dog in their back seat. Volk's stated reason for the stop was for following too closely, but he suspected that the stopped vehicle and another vehicle traveling close by were involved in drug trafficking. The occupants stated that they were traveling to Long Branch, New Jersey, in order to breed the dog, which they described as an "American Bully." Volk's computer was not working at the time, so he let the individuals go with a verbal warning. Later that day, Volk learned that at least one of the occupants was on federal pretrial release for drug violations.

         April 4, 2013

         At approximately 8 a.m. the next day, Volk simultaneously pulled over two separate vehicles traveling eastbound on the Turnpike. Again, Volk believed that the two cars were travelling together and involved in drug trafficking. The stated reasons for the stops were a license plate violation and illegal window tinting. Both drivers denied knowing each other. The first driver, a white male, informed Volk that he was traveling to Baltimore for work. Green drove the second vehicle and informed Volk that he was going to Philadelphia to see family. When Volk asked Green how long he was planning to stay in Philadelphia, Green initially responded, "I don't know. That all depends," at which point Volk began to speak over him, laughing, and asked, "You don't have to get back for work or anything?" Green explained that he owned a barbershop, so he had a good amount of flexibility with regard to the hours he worked. Nothing else was discussed about the planned duration of Green's trip and the conversation diverted to other topics. A check of Green's license revealed that he had multiple prior arrests for drug and weapon offenses, though Volk was unaware if Green had any prior convictions.

         After several minutes, Volk brought Green to the rear of Green's vehicle and issued a warning for the window tint violation. Green told Volk that he had only recently purchased the vehicle and that the windows had been tinted by the previous owner. Volk then told Green he could continue on his way. As Green was walking back to the driver's side of his car, Volk asked him if there was anything in the vehicle that should not be there. Green responded that there was not. Volk then asked for Green's consent to search the vehicle and Green acceded, eventually signing a waiver. Volk searched Green's vehicle, including the engine compartment, for roughly twelve minutes and did not discover any contraband. In fact, Green did not have any luggage or baggage of any kind in his vehicle. While conducting the search, Volk detected the smell of raw marijuana in the trunk compartment and noticed that the trunk liner was pulled back. Volk did not discuss any of these observations with Green. Following the search, Volk allowed Green to continue on his way. Volk also received consent to search the other vehicle and similarly uncovered no contraband.

         April 5, 2013

         At approximately 10 a.m. the following day, Volk was removing debris on the side of the Turnpike and noticed Green's vehicle traveling westbound. By his own admission, Volk decided at this point that he would try to find a reason to stop Green. Volk followed Green and ascertained his speed by "pacing" Green's vehicle. When pacing, an officer finds the speed at which his vehicle remains equidistant from the target vehicle in order to assess the target vehicle's speed. See 75 Pa. Cons. Stat. § 3368 (requirements for pacing). Here, Volk followed one to two-tenths of a mile behind Green's car for a distance of roughly six-tenths of a mile. The speed limit on that portion of the Turnpike was 65 miles per hour. Volk determined that Green was traveling 79 miles per hour and pulled him over. After walking up to Green's window, Volk feigned surprise, saying, "You again!" in a light-hearted manner. When Volk noted that he pulled Green over for speeding, Green apologized and said that he had left the cruise control on while going down a hill. As Green was gathering his license and registration, he asked Volk, "How you doin' today?" Volk replied and then asked Green how he was doing, to which Green responded, "I can't complain. I got a dog, so." Volk then observed a dog in the back of Green's vehicle and believed it was-or at least resembled- the dog from the April 3 stop. Volk asked Green why he had returned from Philadelphia after only one day, despite saying the day before that he would be there for "a couple days." As quoted above, Green did not actually say he would be gone "a couple days" during the earlier stop, but that was how Volk remembered the previous day's conversation. In any event, Green explained that he was returning from Philadelphia because his daughter had just broken her leg, so he had to hurry back to take care of her. This conversation lasted about forty seconds.

         After returning to his cruiser with Green's license and registration, Volk immediately called a colleague to fill him in on the events dating back to April 3. This phone call lasted roughly two minutes and had a decidedly jocular tone. Volk had already requested backup prior to his initial conversation with Green and waited in his vehicle for its arrival. It is unclear whether Volk also requested a canine unit at this time. About eight minutes after the end of his phone call, and with backup not having arrived, Volk called Green to the rear of Green's vehicle.[1] Volk again issued Green a warning and Green struck up a lengthy conversation about his daughter's injury. During this exchange, both Volk and Green stood at the rear of Green's vehicle observing the dog through the back window. Green described the dog's breed as a "Cane Corso" or "Presa Canario," and related that he had bought the dog from a kennel somewhere outside of Philadelphia, though he could not recall the name of the exact town. As had happened the day before, Volk indicated that Green was free to leave, but as Green was walking back to the driver's door, Volk again asked if he could search Green's vehicle. This time, Green apologized and declined, explaining that he was in too much of a hurry. Volk then instructed Green to wait in his car until further notice.

         After approximately fifteen minutes, during which there was no meaningful interaction between Volk and Green, a canine unit arrived. Green was taken out of his vehicle and told to take his dog with him to a safe distance away from the police dog.[2] A canine sweep of the car resulted in an alert for drugs in the trunk. Based on this evidence, Volk obtained a search warrant a few hours later. A search of Green's trunk revealed a duffel bag containing roughly 1, 000 bricks of heroin weighing nearly 20 pounds.

         B. Procedural History

         Green was charged with possession with intent to distribute one kilogram or more of heroin. Green filed a motion to suppress the heroin as obtained in violation of the Fourth Amendment. The District Court held an evidentiary hearing nearly three years after the original stop, in which Volk testified as the only witness. After the District Court denied Green's motion, he pled guilty to the single count, preserving the constitutional issues for appeal. Green was sentenced to 120 months of imprisonment-the mandatory minimum-followed by five years of supervised release.


         The District Court exercised jurisdiction under 28 U.S.C. § 3231, and this Court exercises jurisdiction under 28 U.S.C. § 1291. On an appeal of a denial of a motion to suppress, the District Court's factual findings are reviewed for clear error and its legal determinations are subject to plenary review. United States v. Lewis, 672 F.3d 232, 237 (3d Cir. 2012). We will affirm the District Court's denial of Green's motion to suppress. Although our reasoning differs in some respects from that of the District Court, we may affirm on any ground supported by the record. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).


         Green's constitutional claims require us to answer several discrete questions. First, we must assess whether the District Court erred when it ruled that the final traffic stop on April 5 was supported by reasonable suspicion of a traffic violation. If there was no error, we must proceed to determine whether the District Court was also correct in its determination that the stop was conducted in a constitutional manner. Green argues that the stop was prolonged in violation of the Fourth Amendment. To address this claim, we must first decide ...

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