United States v. Podbielski

1

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES JOSEPH PODBIELSKI, Defendant-Appellant.

No. 22-4084

United States Court of Appeals, Fourth Circuit

August 1, 2023

UNPUBLISHED

Argued: March 22, 2023

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:

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.

Before DIAZ, Chief Judge, and GREGORY and THACKER, Circuit Judges.

Reversed, vacated, and remanded by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

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 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, 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 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 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 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....