United States v. Wilson

Filed: March 14, 2000

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 98-4208

(CR-97-919)

United States of America,

Plaintiff - Appellee,

versus

Wiley Gene Wilson,

Defendant - Appellant.

O R D E R

The court amends its opinion filed March 7, 2000, as follows:

On the cover sheet, section 2 -- the caption is corrected to

read “United States of America v. Wiley Gene Wilson.”

On the cover sheet, section 7, line 1 -- counsel’s name is

corrected to read “Carolyn A. Dubay.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4208

WILEY GENE WILSON,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Cameron McGowan Currie, District Judge.

(CR-97-919)

Submittted: February 23, 2000

Decided: March 7, 2000

Before WILKINSON, Chief Judge, WIDENER, MURNAGHAN,

WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL,

MOTZ, TRAXLER, and KING, Circuit Judges.

_________________________________________________________________

Vacated by published opinion. Judge Michael wrote the opinion, in

which Chief Judge Wilkinson, Judge Widener, Judge Murnaghan,

Judge Wilkins, Judge Niemeyer, Judge Luttig, Judge Williams, Judge

Motz, Judge Traxler, and Judge King joined.

_________________________________________________________________

COUNSEL

ARGUED: Carolyn A. Dubay, Christopher G. Browning, Jr.,

HUNTON & WILLIAMS, Raleigh, North Carolina, for Appellant.

William Earl Day, II, Assistant United States Attorney, Florence,

South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United

States Attorney, Florence, South Carolina, for Appellee.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

Wiley Gene Wilson appeals his conviction and sentence for pos-

sessing a firearm while he was a felon and fugitive, in violation of 18

U.S.C. § 922(g)(1), (2). Wilson argues that the district court erred in

admitting the firearm into evidence over his objection that it had been

obtained as the result of an unconstitutional automobile stop. Because

we agree that the firearm should have been excluded, we vacate Wil-

son's conviction.

I.

This appeal turns on the undisputed facts that led a policeman to

stop Wilson's car in South Carolina on April 2, 1997. The story, how-

ever, begins a few months earlier, on August 16, 1996, when Wilson

was released from the Nevada State Prison after completing a sen-

tence for larceny and burglary. He went immediately to live with his

sister and brother-in-law in Crystal City, Missouri, where he resumed

serving a term of supervised release on an earlier federal conviction

for escape from a halfway house. On August 24, 1996, soon after he

arrived in Missouri, Wilson got into a dustup with his relatives, and

he was arrested and jailed for disturbing the peace. Wilson was

released after a few hours, and two days later (August 26, 1996) he

went to Las Vegas. On October 10, 1996, a federal warrant was

issued for his arrest on the charge that he had violated his supervised

release by failing to report the August 1996 arrest to his probation

officer and by leaving Missouri without permission.

Wilson managed to evade the authorities and eventually wound up

in Pageland, South Carolina, where his wife, Kimberly, and son were

living. After Wilson arrived in South Carolina, he decided to buy his

wife a car, and on March 31, 1997, he bought a used 1984 Mercury

Cougar from a car lot in Monroe, North Carolina. The bill of sale con-

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veyed title to Wiley Gene Wilson and Kimberly Ann Wilson. As

required by North Carolina law, the dealer placed a temporary (paper)

license tag on the car. Handwritten on the bottom of the tag were its

expiration date and the car's make and vehicle identification number.

See N.C. Gen. Stat. § 20-79.1.

Two days after the purchase, on the evening of April 2, 1997, Wil-

son was driving the Cougar on State Route 151 near Pageland, South

Carolina. He was on his way to a restaurant with his wife, his son, and

his son's girlfriend. A Pageland policeman, Alex McLemore, who

was on patrol that evening, happened to overtake the Cougar as it was

traveling along Route 151. Officer McLemore noticed that the car had

a North Carolina temporary tag, and he began following it. It was

dark, and Officer McLemore had his headlights on. The officer fol-

lowed behind the Cougar for a quarter to half of a mile, but he was

unable to read the expiration date on the tag. The officer admitted that

he never saw anything illegal about the tag or the operation of the car.

There was no evidence that the tag was concealed, improperly dis-

played, smudged, or faded by age. Solely because he could not read

the handwritten expiration date "in the bottom little corner of the

paper tag," Officer McLemore signaled for the driver of the Cougar

to pull over.

Wilson stopped, got out of the car, and met the officer midway

between the two cars. Officer McLemore asked for Wilson's driver's

license; Wilson first claimed he did not have a license and later said

he had lost it. The officer then went to the front passenger side of the

Cougar, where Kimberly Wilson gave him the bill of sale for the car.

When the officer saw that Wiley Gene Wilson and Kimberly Ann

Wilson were listed as the owners, he asked (Mr.) Wilson if he was

Wiley Gene Wilson. Wilson denied that he was, saying that he was

Boyd Wilson. Kimberly Wilson, however, confirmed that Wilson was

indeed Wiley Gene Wilson. Thereafter, while Officer McLemore's

dispatcher was attempting to run a computer check on Wilson, Kim-

berly Wilson suddenly recognized the officer from a prior meeting.

Mrs. Wilson reminded Officer McLemore that she had talked with

him in January 1997 when her son was missing and believed to be

somewhere in the West with his father, Wiley Wilson. The officer

then recalled that he had run a computer check on Wilson on the prior

occasion and had discovered a warrant outstanding for his arrest.

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Upon realizing that Wilson was a fugitive, Officer McLemore

arrested him for driving without a license and without liability insur-

ance. Officer McLemore then searched the Cougar and found a

loaded 9mm handgun under the driver's seat.

Wilson was indicted for illegally possessing a firearm as a felon

and fugitive. At trial he moved to suppress the 9mm handgun on the

ground that it was the fruit of an unconstitutional stop. The stop was

unconstitutional, Wilson argued, because Officer McLemore did not

see or suspect any illegal activity. The district court denied the

motion, and the jury voted to convict. Wilson now appeals.

II.

A.

Because an automobile stop is a seizure of a person, the stop must

comply with the Fourth Amendment's requirement "that it not be

`unreasonable' under the circumstances." Whren v. United States, 517

U.S. 806, 809-10 (1996). As a result, such a stop "must be justified

by probable cause or a reasonable suspicion, based on specific and

articulable facts, of unlawful conduct." United States v. Hassan El, 5

F.3d 726, 729 (4th Cir. 1993). There are, of course, certain limited

circumstances where suspicionless stops are permissible. See, e.g.,

Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990) (uphold-

ing constitutionality of suspicionless vehicle stop at highway sobriety

checkpoint); United States v. Martinez-Fuerte , 428 U.S. 543 (1976)

(same, border patrol checkpoint). In any case, the Supreme Court has

made clear that the Fourth Amendment does not allow a random, dis-

cretionary automobile stop that is unsupported by articulable, reason-

able suspicion of a violation. See Delaware v. Prouse, 440 U.S. 648,

663 (1978); United States v. Villamonte-Marquez , 462 U.S. 579, 592

(1983) ("Random stops without any articulable suspicion of vehicles

away from the border are not permissible under the Fourth Amend-

ment . . . .").

The leading case of Delaware v. Prouse presented facts strikingly

similar to those before us today. In that Supreme Court case the

patrolman testified that he simply "saw a car in the area and wasn't

answering any complaints, so [he] decided to pull them off" to check

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driver's license and registration. Delaware v. Prouse, 440 U.S. at 651.

Before making the stop the officer had observed neither "traffic or

equipment violations nor any suspicious activity." Id. at 650. Upon

walking up to the stopped car, the officer saw marijuana in plain sight

on the floorboard, and he arrested one of the occupants. The Supreme

Court did not mince words in holding that the suspicionless stop vio-

lated the Fourth Amendment:

When there is not probable cause to believe that a driver is

violating any of the multitude of applicable traffic and

equipment regulations -- or other articulable basis amount-

ing to reasonable suspicion that the driver is unlicensed or

his vehicle unregistered -- we cannot conceive of any legiti-

mate basis upon which a patrolman could decide that stop-

ping a particular driver . . . would be more productive than

stopping any other driver. This kind of standardless and

unconstrained discretion is the evil the Court has discerned

when in previous cases it has insisted that the discretion of

the official in the field be circumscribed, at least to some

extent.

Prouse, 440 U.S. at 661 (citation omitted).

The same "standardless and unconstrained discretion" that the

Fourth Amendment forbids was at work when Officer McLemore sig-

naled for Wilson to stop his car. The facts and circumstances reveal

that the officer did not have a reasonable suspicion-- in fact, the offi-

cer testified that he had no suspicion at all -- that Wilson was driving

without a license, operating an unregistered vehicle, or otherwise vio-

lating the law. There was nothing illegal about the operation of the

vehicle, and nothing appeared illegal about the temporary tag. It was

dark, and both cars were moving. Although Officer McLemore "could

not see the written-in expiration date on the tag," that appears to have

been a function of the darkness and the small space provided for writ-

ing in the date. There is no evidence that the temporary tag was illegi-

ble or in any way obliterated, smudged, or faded. Cf. State v. Hudson,

407 S.E.2d 583, 587 (N.C. Ct. App. 1991) (faded numbers suggested

that tag was more than thirty days old). There is no evidence that the

tag lacked any required information, United States v. Hill, 131 F.3d

1056, 1060 (D.C. Cir. 1997), that it was improperly displayed, United

5

States v. Dexter, 165 F.3d 1120, 1124-25 (7th Cir. 1999), or that it

was concealed in any way, United States v. McSwain, 29 F.3d 558,

560 (10th Cir. 1994). Wilson was pulled over solely because Officer

McLemore could not read the handwritten expiration date "in the bot-

tom little corner of the paper tag" as he drove behind Wilson after

darkness had fallen. An objective assessment of the facts and circum-

stances of this stop compels the conclusion that the officer lacked any

articulable, reasonable suspicion that a violation had occurred. Simply

put, he saw nothing wrong, and he suspected nothing. Upholding a

stop on these facts would permit the police to make a random, suspi-

cionless stop of any car with a temporary tag. The Fourth Amendment

does not afford the police such unbridled discretion. See Prouse, 440

U.S. at 663.

B.

The government argues that South Carolina law authorizes the

police to stop any car with temporary tags to determine whether the

owner is in compliance with the state's requirement that permanent

tags be obtained within thirty days of purchase. The government,

however, cannot point to any statute, regulation, or court decision

from South Carolina that authorizes such an investigatory stop. The

government relies solely on our conclusory statement in United States

v. McDonald, 61 F.3d 248, 254 (4th Cir. 1995), that under South Car-

olina law the presence of temporary tags on a car "entitle[s] [police]

to conduct an investigatory stop in order to determine whether the

car's owner [is] in violation of state law requiring permanent tags

within thirty days of a vehicle's purchase." The problem with

McDonald is that it cited no authority for the purported statement of

South Carolina law (for that matter, neither did the United States cite

any authority when it briefed that case). We have made an indepen-

dent search, and we find nothing in South Carolina's law to support

the statement in McDonald. At this point, we can only conclude that

McDonald misstated the law of South Carolina.1 Of course, any state

_________________________________________________________________

1 This case was argued before a panel of this court on October 29,

1999. Because the panel (like the district court) was bound by

McDonald, the members of this court in regular active service have, by

unanimous consent, authorized this opinion to be issued en banc.

Accordingly, McDonald is overruled to the extent it relied on a law that,

as it turns out, did not exist.

6

law that authorized a search or seizure would be subject to the

requirements of the Fourth Amendment. See United States v.

Manbeck, 744 F.2d 360, 382 (4th Cir. 1984) (holding that statute

authorizing customs officials to board vessels "must be interpreted in

a manner consistent with limitations imposed by the Fourth Amend-

ment").

C.

The Fourth Amendment does not allow a policeman to stop a car

just because it has temporary tags. Because Officer McLemore did

not have any articulable, reasonable suspicion of unlawful conduct, he

had no justification for stopping Wilson's car. Because the stop was

illegal, the gun found during the subsequent search of the car should

have been excluded from Wilson's trial. His conviction is therefore

vacated.2

VACATED

_________________________________________________________________

2 In light of this disposition it is unnecessary for us to consider Wil-

son's other arguments.

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