Argued: December 7, 2017
from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K.
Reidinger, District Judge. (1:15-cr-00101-MR-DLH-2)
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.
Hall Richardson, Federal Public Defender, Interim, FEDERAL
PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF NORTH CAROLINA,
Charlotte, North Carolina, for Appellant.
Westmoreland Rose, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
TRAXLER, KING, and HARRIS, Circuit Judges.
TRAXLER, Circuit Judge.
Bowman appeals the district court's denial of his motion
to suppress evidence recovered from a dog sniff conducted
after an already-completed traffic stop. We conclude that the
police officer had neither Bowman's consent to extend the
traffic stop nor a reasonable, articulable suspicion of
ongoing criminal activity to justify doing so. Accordingly,
the prolonged traffic stop abridged Bowman's right under
the Fourth Amendment to be free of unreasonable seizures. We
vacate Bowman's conviction for possession with intent to
distribute methamphetamine and remand for such further
proceedings as may be appropriate.
suppression hearing before the magistrate judge, the
government submitted a dashcam video recording of the entire
traffic stop and presented the testimony of the arresting
officer, Trooper Andrew Waycaster of the North Carolina State
Highway Patrol's Criminal Interdiction Unit. The evidence
adduced at the hearing was as follows. In the early morning
hours of June 20, 2015, Waycaster was patrolling U.S. Route
25 in Henderson County, North Carolina. He received a tip
from the Drug Enforcement Agency (DEA) that two individuals
suspected of transporting methamphetamine from Atlanta to the
Asheville and Hendersonville areas were possibly driving
"a red, older model Lexus" in the area. J.A. 82.
Additionally, the DEA provided the license plate number for
the vehicle. At about 3:40 a.m., Waycaster spotted a red 1998
Lexus traveling north on U.S. Route 25 and followed in his
patrol vehicle. Rather than stop the vehicle based on the
information provided by the DEA, Waycaster was "looking
for [his] own infractions . . . for [his own] reason to stop
the vehicle." J.A. 86. According to Waycaster, the red
Lexus weaved over the fog line and accelerated up to a steady
10 miles per hour over the speed limit, leading Waycaster to
believe that the driver might be operating under the
influence of alcohol or drugs.
stopped the Lexus, approached from the passenger side of the
vehicle and asked both occupants to show their hands. Bowman
was the driver, and Homero Alvarez occupied the front
passenger's seat. Waycaster testified that Bowman
appeared to be nervous because his hands were shaking when he
handed over his vehicle registration and driver's
license. Waycaster indicated that Alvarez "was
continually staring straight ahead" rather than looking
at him, behavior that Waycaster found suspicious. J.A. 90.
Waycaster further testified that he saw movement in
Bowman's and Alvarez's carotid arteries, leading him
to conclude that both men had elevated heart rates and were
did not see any alcohol or firearms. However, Waycaster took
note of several items in Bowman's 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 Waycaster, the
presence of these items suggested that Bowman and Alvarez
"could have been possibly traveling for a . . . long
period of time, and in a hurry to get from one location to
another [without] taking time to stop and rest or have
meals." J.A. 91.
Waycaster told Bowman that "the reason for the traffic
stop was the weaving and speeding violations, " and he
asked Bowman to exit his vehicle and go back to the patrol
car so that Waycaster could check his information. J.A. 93.
Alvarez remained seated in the Lexus. After stepping out of
his vehicle, Bowman consented to a weapons frisk, and
Waycaster found none. Waycaster testified that during this
time, he could see Alvarez moving around in the front of the
Lexus and looking back towards Waycaster and Bowman-activity
that Waycaster believed was an additional indicator of
then instructed Bowman to sit in the patrol vehicle while he
ran a check on Bowman's driver's license and vehicle
registration. Bowman complied and sat in the patrol car's
front passenger's seat. While Waycaster processed
Bowman's driving information, Bowman apologized for
speeding and stated that he believed he had been traveling
within the speed limit. As for the weaving, Bowman told
Waycaster that he had purchased the Lexus during the previous
week, and that he was having issues with the front end of the
vehicle. Bowman also indicated that he was tired.
then asked Bowman where he and Alvarez had come from and
where they were going. At the hearing, Waycaster maintained
he asked this question based not on the DEA tip but rather
based on "the time of morning, 3:40 in the morning, and
his increased nervousness." J.A. 98. Bowman responded
that he was "headed home" after having "picked
up Mr. Alvarez at [Alvarez's] girlfriend's
house" 25 to 30 minutes earlier, J.A. 97-98, and
explained that Alvarez was a good friend who had given him a
ride in the past and that Bowman was returning the favor
because "Alvarez's vehicle wasn't legal, "
J.A. 100. Bowman was unable to give Waycaster the
girlfriend's address but offered that he had entered the
location into the GPS in his Lexus. Bowman stated that he
lived in Black Mountain, North Carolina, but that he had been
staying with his girlfriend near Fletcher, North Carolina. He
also indicated that he lived about twenty minutes away from
also asked Bowman what he did for a living. Bowman stated
that he was a welder and fabricator but that he was presently
laid off from work. Waycaster further asked Bowman if he had
any prior speeding tickets, and Bowman responded that he had
one prior ticket while using a different vehicle that he had
purchased using Craigslist. He did not indicate when he had
purchased the vehicle. Bowman added that he "buy[s]
cheap cars off of Craigslist." J.A. 154. Waycaster
testified that he found it suspicious that Bowman "was
in possession of one car and admitted he recently bought
another car off Craigslist" because "[i]t's a
known practice with narcotics traffickers to either use
rental vehicles or use multiple, different vehicles, or buy
and sell vehicles to transport narcotics." J.A. 101.
Also, Waycaster was skeptical about Bowman's ability to
purchase "multiple vehicles in a short period of
time" while he was laid off. J.A. 154.
speaking with Bowman, Waycaster did not believe he was
driving under the influence and issued him a warning for
speeding and unsafe movement of the vehicle. Waycaster then
completed the traffic stop by returning Bowman's
driver's license and registration and shaking his hand.
Bowman began to exit the patrol vehicle, Waycaster asked if
he could speak with Bowman further. Bowman consented and
remained in the patrol car. Waycaster asked additional
questions "to clarify where he had been" that
evening. J.A. 103. In response to Waycaster's prompting,
Bowman reiterated that he had picked up Alvarez from
Alvarez's girlfriend's place, that he was not sure
precisely where she lived, and that the location of the pick
up could be found in the Lexus's GPS. When pressed by
Waycaster to tell him generally where she lived, Bowman
indicated it was in North Carolina and that he and Alvarez
had been driving for 25-30 minutes when Waycaster stopped
them. Waycaster also asked for the girlfriend's name, but
Bowman did not know it.
then stated to Bowman, who was still seated in the patrol
car, that he "was going to go ask [Alvarez] questions if
you don't mind, okay?" Bowman responded, "okay,
" and remained in the vehicle. Then, as Waycaster was
getting out of the patrol car, he told Bowman, "just
hang tight right there, okay, " to which Bowman said,
"oh, okay." Waycaster testified that at this point,
Bowman was "not free to get out of that police car to
leave" because Waycaster had developed from the
traffic stop alone a reasonable suspicion of
criminal activity sufficient to detain Bowman further. J.A.
then walked to the passenger side of the Lexus and began
posing questions to Alvarez about where they had been that
morning. Alvarez gave an inconsistent story, telling
Waycaster that they had been visiting friends in Georgia.
Waycaster then returned to his patrol car and, after Bowman
repeated that he and Alvarez had come from the home of
Alvarez's girlfriend, Waycaster asked if there was any
methamphetamine in the Lexus. Bowman responded in the
negative. Waycaster asked for permission to search the Lexus,
but Bowman refused. Once again, Waycaster told Bowman to
"hang tight, okay" and then removed Alvarez from
the Lexus, frisked him for weapons, and placed him in the
patrol car with Bowman. A K-9 officer was summoned who then
conducted a pass around the outside of the Lexus-and then on
the interior of the vehicle-and received an alert from the
dog for the presence of illegal narcotics. Subsequently,
Waycaster and the K-9 handler conducted a search of the
interior of the Lexus and found a quantity of
methamphetamine, digital scales and containers of ammunition.
was charged in a single-count indictment with possession with
intent to distribute at least 50 grams of methamphetamine.
Bowman filed a motion to suppress the methamphetamine and
other evidence recovered from the search of his car, arguing
that Waycaster unlawfully prolonged the completed traffic
stop without consent or reasonable suspicion. See
Rodriguez v. United States, 135 S.Ct. 1609 (2015).
magistrate judge recommended that the district court deny
Bowman's motion to suppress. First, the magistrate judge
explained that once Waycaster concluded the traffic stop, he
needed either Bowman's consent or reasonable suspicion to
detain him further. The magistrate judge implicitly found
that Bowman consented to the few additional questions
Waycaster asked after the completion of the traffic stop,
when "Trooper Waycaster plainly and unequivocally
ask[ed] Defendant Bowman for permission . . . to ask him a
few follow up questions." J.A. 275. However, the
magistrate judge found that after ...