October 23, 2017
Appeal from the United States District Court for the Western
District of Pennsylvania (3-13-cr-00016-001) District Judge:
Honorable Kim R. Gibson
B. Freeland, Esq., Christopher B. Brown, Esq. Kimberly R.
Brunson, Esq. [ARGUED] Office of Federal Public Defender
Counsel for Appellant
W. Brady, Esq., Rebecca R. Haywood, Esq., Michael L. Ivory,
Esq. [ARGUED] Office of United States AttorneyCounsel for
Before: GREENAWAY JR., NYGAARD and FISHER, Circuit Judges.
OPINION OF THE COURT
FISHER, Circuit Judge.
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.
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
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.
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.
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.
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.
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. 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.
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
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.
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.
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).
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 ...