United States v. Banks, 4th Cir. (1998)
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Scribd Government DocsUnited States v. Banks, 4th Cir. (1998)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4810
FLETCHER EDWARD BANKS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-97-138-A)
Submitted: May 26, 1998
Decided: August 28, 1998
Before WIDENER, WILKINS, and NIEMEYER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Matthew Alan Wartel, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Thomas M. Hollenhorst, Assistant
United States Attorney, Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Fletcher Edward Banks appeals his criminal conviction for possession of crack cocaine with the intent to distribute in violation of 21
U.S.C. 841(a)(1) (1994). We affirm.
Banks pled guilty to the above offense, reserving the right to appeal
the district court's denial of motions to dismiss the indictment and to
suppress evidence. According to police testimony at the suppression
hearing, Banks was driving south on Interstate 95 in the morning
hours of June 6, 1996. He was traveling approximately five to seven
miles slower than the posted speed limit in the center of three lanes
of traffic. A Virginia police officer was about to pass Banks' vehicle
when he noticed the car, bearing North Carolina tags, weave to the
right, then back to the left in a jerking motion.
The officer then decided to follow Banks. Other vehicles were
passing Banks on both sides, and the officer observed that Banks' car
continued to weave within the center lane, coming close to entering
the right lane, then jerking left again. The officer, a twenty-year veteran with the force, also noticed that Banks was slumped over to the
right in his seat as if adjusting the radio. Based upon his experience,
the officer believed that Banks might be either intoxicated or fatigued.
He thus decided to stop Banks.
The officer ordered Banks to exit the vehicle and asked for his
license. Banks provided his license and a rental agreement for the car
he was driving. In response to the officer's inquiries regarding possible fatigue, Banks stated that he had worked a shift at a fast food restaurant where he was employed the previous day, rented a car that
afternoon, driven to New York City, spent a few hours visiting a
friend, and was now returning home. The officer then started to perform a field sobriety test, but quickly determined that Banks was not
intoxicated.
These facts prompted the officer to ask if Banks was transporting
any illegal contraband. Banks responded in the negative, but looked
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away from the officer, focusing on the car, and began to tremble
slightly. The officer repeated his question, and this time Banks admitted that he was carrying drugs in an overnight bag on the floor behind
the passenger seat. Based upon this admission, the officer searched
the car and retrieved 339 grams of cocaine from the bag.
Banks moved to suppress this evidence and to dismiss the indictment, alleging that the initial stop was not supported by probable
cause and that the officer improperly extended the duration and scope
of the stop. The district court denied his motion, finding the initial
stop valid and determining that facts ascertained during the legitimate
scope of the stop justified further inquiry.
Investigative traffic stops are reasonable under the Fourth Amendment when there is probable cause to believe that a traffic violation
has occurred. See Whren v. United States, 517 U.S. 806, 810 (1996).
We agree with the district court's determination that this standard was
met. The officer testified that Banks was driving five to seven miles
per hour below the posted speed limit and that he was weaving and
jerking within his lane of traffic. While Banks cites cases which hold
that an individual's "failure to follow a perfect vector down a highway" is an insufficient basis to support a traffic stop, United States
v. Lyons, 7 F.3d 973, 976 (10th Cir. 1996), we note that the officer
testified that Banks repeatedly drifted towards the right, coming close
to crossing into the right lane, and then suddenly jerked back to the
left. We agree with the Government that this repeated pattern is indicative of a motorist reacting to a temporary loss of consciousness and
attempting to regain control of the vehicle. Therefore we agree with
the district court's finding that the initial stop was valid.
Banks next contends that the officer's subsequent investigation
exceeded the scope of the stop. Specifically, he asserts that the officer's repeated questions regarding the presence of contraband were
impermissible and that the drugs discovered as a result of Banks' confession should have been suppressed.
The law is clear that during a routine traffic stop an officer may not
hold a driver for further questioning unless other grounds to do so are
present, such as consent or reasonable suspicion of criminal activity.
See United States v. Rusher, 966 F.2d 868, 876-77 (4th Cir. 1992).
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Considering the totality of the circumstances surrounding the traffic
stop, United States v. Cortez, 449 U.S. 411, 417 (1981), we agree
with the district court's determination that the officer had accumulated sufficient reasonable suspicion to warrant further investigation.
Specifically, Banks was returning to Virginia from a source city.
He was driving a rental car, which the officer explained is often used
in drug transportation to avoid forfeiture of the conveyance. Further,
Banks' explanation of his trip strained credulity. He asserted that after
working a shift at a fast-food restaurant the day before, he rented a
car and drove from Charlottesville to New York. He claimed that he
spent a few hours* with a friend in New York and then began his
return trip home. The officer also testified that although cooperative,
Banks appeared nervous and "in a hurry to be on his way."
Although these facts individually may depict innocent activity, we
conclude that considered together, they were sufficient to provide the
officer with reasonable suspicion to conduct further inquiry. See
United States v. Sokolow, 490 U.S. 1, 9-10 (1989) (holding that innocent factors considered together can amount to reasonable suspicion).
We thus conclude that the officer's questions regarding the presence of drugs were appropriate and that the district court properly
denied Banks' motion to suppress. Accordingly, we affirm Banks'
conviction. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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*At one point the officer testified that Banks used the phrase "a few
hours," at another point he testified that Banks had said for a couple of
hours. We agree with the district court that this is not a significant difference.
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