Petition for Writ of Certiorari — Jason Wattie Buzzard and Paul William Martin, Petitioners v. United States

Supreme Court briefNov 8, 2021

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NO. __________________

_____________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

______________________________________________________________________

JASON WATTIE BUZZARD and

PAUL WILLIAM MARTIN, Petitioners,

UNITED STATES OF AMERICA, Respondent.

_________________________________________________________________

APPENDIX A

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_________________________________________________________________

Gerald Morton Titus, III

Spilman, Thomas & Battle, PLLC

300 Kanawha Boulevard, East

Post Office Box 273

Charleston, West Virginia 25321

304/340-3800

gtitus@spilmanlaw.com

Counsel for Petitioner Jason Wattie Buzzard

Jonathan D. Byrne, Appellate Counsel

Counsel of Record

Wesley P. Page, Federal Public Defender

David R. Bungard, Assistant Federal Public Defender

Office of the Federal Public Defender

Southern District of West Virginia

300 Virginia Street, East, Room 3400

Charleston, West Virginia 25301

304/347-3350

jonathan_byrne@fd.org

Counsel for Petitioner Paul William Martin

United States v. Buzzard, 1 F.4th 198 (2021)

1 F.4th 198

United States Court of Appeals, Fourth Circuit.

UNITED STATES of America, Plaintiff − Appellee,

Jason Wattie BUZZARD, Defendant – Appellant.

United States of America, Plaintiff − Appellee,

Paul William Martin, Defendant – Appellant.

United States of America, Plaintiff − Appellee,

Paul Martin, Defendant – Appellant.

No. 20-4087, No. 20-4221, No. 20-4228

Argued: January 28, 2021

Decided: June 11, 2021

Synopsis

Background: Defendant pled guilty in the United States District Court for the Southern District of

West Virginia, Joseph R. Goodwin, J., to being a felon in possession of firearms, and codefendant

was found guilty of being a felon in possession of firearms. Defendant and codefendant appealed.

Holdings: The Court of Appeals, Diaz, Circuit Judge, held that:

[1] officer's question, during traffic stop, asking whether there was anything illegal in the car

related to officer safety and, thus, related to the traffic stop's mission;

[2] officer's question, during traffic stop, asking whether there was anything illegal in the car did

not unlawfully extend the traffic stop; and

[3] evidence was sufficient for the jury to conclude that defendant possessed the guns recovered

from car so as to support defendant's conviction for being felon in possession of firearms.

Affirmed.

United States v. Buzzard, 1 F.4th 198 (2021)

Procedural Posture(s): Appellate Review; Trial or Guilt Phase Motion or Objection; Pre-Trial

Hearing Motion.

West Headnotes (8)

[1]

Criminal Law

Review De Novo

Criminal Law

Evidence wrongfully obtained

When reviewing the denial of a motion to suppress, appellate courts review suppression

court's factual findings for clear error and its legal determinations de novo.

[2]

Criminal Law

Reception of evidence

When the government prevails on a defendant's motion to suppress, appellate court views

the evidence in the light most favorable to the government.

[3]

Automobiles

Inquiry; license, registration, or warrant checks

Officer's question, during traffic stop, asking whether there was anything illegal in the car

related to officer safety and, thus, related to the traffic stop's mission; defendants were in

the car, and thus, officer was outnumbered, and officer asked the question because of the

time of night and the high drug area, defendant's history, and defendant's behavior, and

given the totality of the circumstances, it made sense that officer needed to know more

about what defendants had in their car. U.S. Const. Amend. 4.

1 Cases that cite this headnote

[4]

Automobiles

Inquiry; license, registration, or warrant checks

Officer's question, during traffic stop, asking whether there was anything illegal in the car

did not unlawfully extend the traffic stop; officer was mid-stop when he asked whether

there was anything illegal in car, officer did not yet have the information he needed to

perform the customary checks on the driver and car, and he was waiting for an additional

officer to arrive so he could safely proceed with the stop. U.S. Const. Amend. 4.

1 Cases that cite this headnote

[5]

Weapons

Possession

United States v. Buzzard, 1 F.4th 198 (2021)

Evidence was sufficient for the jury to conclude that defendant possessed the guns

recovered from car so as to support defendant's conviction for being felon in possession of

firearms; evidence showed that defendant's cohort arranged to sell the guns to defendant

and that they negotiated the price, location, and timeframe for the sale, evidence showed

that police found gun under the driver's seat towards the backseat and another gun under

passenger's seat, both within reach of where defendant was sitting, evidence indicated that

defendant knew that his cohort had guns in the car, and not only did cohort testify that

he handed guns to defendant when defendant got into the car, there was circumstantial

evidence that defendant was the one who hid the guns under the driver's and passenger's

seats of car.

[6]

Criminal Law

Review De Novo

Appellate courts review the denial of a motion for acquittal de novo.

[7]

Criminal Law

Construction of Evidence

Criminal Law

Substantial evidence

Appellate courts must uphold the jury's verdict if, viewing the evidence in the light most

favorable to the government, substantial evidence supports it.

[8]

Criminal Law

Degree of proof

“Substantial evidence” to support defendant's conviction is evidence that a reasonable

finder of fact could accept as adequate and sufficient to support a conclusion of a

defendant's guilt beyond a reasonable doubt.

*200 Appeals from the United States District Court for the Southern District of West Virginia,

at Charleston. Joseph R. Goodwin, District Judge. (2:19-cr-00022-1; 2:19-cr-00021-1; 2:16cr-00143-1)

Attorneys and Law Firms

ARGUED: David Robert Bungard, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Charleston, West Virginia, for Appellants. Louie Alexander Hamner, OFFICE OF THE UNITED

STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Gerald Morton Titus,

United States v. Buzzard, 1 F.4th 198 (2021)

III, SPILMAN, THOMAS & BATTLE, PLLC, for Appellant Jason Wattie Buzzard. Wesley P.

Page, Federal Public Defender, Jonathan D. Byrne, Assistant Federal Public Defender, OFFICE

OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant Paul

William Martin. Michael B. Stuart, United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Charleston, West Virginia, for Appellee.

Before MOTZ, DIAZ, and RICHARDSON, Circuit Judges.

Opinion

Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Motz and Judge

Richardson joined.

DIAZ, Circuit Judge:

In this consolidated appeal, Jason Wattie Buzzard and Paul William Martin challenge the district

court's denial of their motions to suppress evidence found when police searched a car they

occupied. Martin also challenges the denial of his motion for acquittal at trial and the revocation

of his term of supervised release at sentencing. For the following reasons, we affirm.

Shortly after 1:30am on October 12, 2018, West Virginia police officer Tyler Dawson pulled over

a car for a defective brake light. 1 Buzzard was driving and Martin was in the passenger seat of the

car, which had recently left the parking lot of a Sheetz gas station and convenience store. Dawson,

who was patrolling alone that night, called into dispatch that he was stopping a vehicle with two

occupants and gave his location. He then approached the vehicle and recognized Martin (he'd had

prior interactions with Martin while on duty).

The parties agree that Dawson lawfully initiated the traffic stop.

At some point during the stop, Dawson asked whether there was anything illegal in the car

(the parties dispute when this occurred). In response, Buzzard and Martin both volunteered drug

paraphernalia; Buzzard produced a marijuana “bowl” from under his shirt and Martin produced

a hypodermic needle and syringe.

United States v. Buzzard, 1 F.4th 198 (2021)

Additional officers arrived on the scene and Buzzard and Martin were removed from the vehicle.

The officers searched the car and recovered two handguns wrapped in socks—one from under the

driver's seat and one from under the passenger's seat. They arrested Buzzard and Martin, who were

each charged with being a felon in possession of firearms. 2

Martin's probation officer subsequently filed a petition to revoke a term of supervised release

that Martin was serving for a prior offense.

*201 B.

Martin and Buzzard filed nearly identical motions to suppress the guns, together with additional

evidence found in the vehicle. They claimed that Officer Dawson violated their Fourth Amendment

rights by asking whether there was anything illegal in the car because the question wasn't related

to the traffic stop's mission and unlawfully prolonged the stop. After a joint evidentiary hearing,

the district court denied both motions.

Buzzard pleaded guilty to being a felon in possession of firearms. His plea agreement preserved

his right to appeal the denial of his motion to suppress.

Martin went to trial on a second superseding indictment that charged him with being, and

conspiring to be, a felon in possession of firearms. At the close of the government's case, Martin

moved for a judgment of acquittal on both counts. The district court granted the motion with respect

to the conspiracy charge but denied it with respect to the possession charge. The jury found Martin

guilty of being a felon in possession of firearms. During sentencing, the district court granted the

petition to revoke Martin's previous term of supervised release.

This appeal followed.

II.

[1] [2] Buzzard and Martin maintain that the district court should have suppressed the guns

because Officer Dawson violated their Fourth Amendment rights when he asked whether there was

anything illegal in the car. When reviewing the denial of a motion to suppress, we review factual

findings for clear error and legal determinations de novo. United States v. Scott, 941 F.3d 677, 683

United States v. Buzzard, 1 F.4th 198 (2021)

(4th Cir. 2019). When, as here, the government prevailed below, we view the evidence in the light

most favorable to the government.

United States v. Jamison, 509 F.3d 623, 628 (4th Cir. 2007).

The evidence before the district court included Dawson's, Buzzard's, and Martin's testimony at the

suppression hearing. Dawson testified as follows. The traffic stop occurred in a high-crime area,

where officers, including Dawson himself, had previously made multiple arrests for narcotics.

There's a known drug house within a block of the location, and people often use the free Wi-Fi

at the Sheetz to arrange drug deals.

Dawson made the call to dispatch as soon as he pulled the car over. On his overnight shift, it's

common practice that when a lone officer calls in that he's stopping a vehicle with more than one

occupant, another officer will join him as soon as possible. That night, the first additional officer

arrived within three to five minutes.

After making the call, Dawson walked to the driver's side window and spoke with Buzzard. At this

point in a traffic stop, Dawson “[a]lways advise[s] [the occupants] why [he] stopped them and then

[ ] always ask[s] for license[,] [ ] registration, [and] proof of insurance.” J.A. 150. In response to

this request, Buzzard began looking for the registration and insurance and explained that it wasn't

his car. Dawson then recognized Martin in the passenger's seat. He knew that Martin had a history

of drug addiction, that he'd recently gotten out of prison, and that he was a convicted felon.

As Dawson spoke with Buzzard, Martin kept moving and looking around. Martin *202 “would

not sit still in the seat and [ ] wasn't making eye contact with” Dawson. J.A. 153. Martin also

interrupted Dawson repeatedly as he spoke with Buzzard, saying things like “hey, you know, we're

not up to anything. It's just me.” Id. Martin's behavior was abnormal for a passenger during a traffic

stop, and Dawson suspected that he might run.

Because it was late at night and there were two individuals in the car—one of whom he thought

might run—Dawson decided to wait for another officer to arrive before returning to his vehicle

to check what information he could (Buzzard hadn't been able to provide a driver's license,

registration, or insurance). While waiting for an additional officer to arrive, Dawson asked Buzzard

if there was anything illegal in the vehicle. He asked this question because of “the time of night and

the high drug area, Mr. Martin's history and Mr. Martin's behavior.” J.A. 158. In response, Buzzard

volunteered the marijuana bowl. Dawson had Buzzard step out of the vehicle and performed a pat

search for weapons. During this time, “Martin was bent over. He seemed to be fiddling around

near the floorboard of the car.” J.A. 160.

United States v. Buzzard, 1 F.4th 198 (2021)

As Dawson finished his pat search of Buzzard, Officer Tony Messer arrived. Dawson passed

Buzzard off to Messer and moved to Martin's side of the car. That's when Martin produced a

hypodermic needle and syringe to Dawson. After Dawson asked Martin to step out of the vehicle

and began to perform a pat search on him, Messer told Dawson to cuff Martin because there were

guns in the car (after Dawson passed Buzzard off to Messer, Buzzard told Messer that Martin had

guns in the car). The police ultimately searched the car and found the two handguns wrapped in

socks under the driver's and passenger's seats.

Martin told a different story. He testified that Dawson never introduced himself, mentioned the

reason for the stop, or asked Buzzard for his license and registration. Rather, Martin testified,

Dawson simply walked up to Buzzard's window and asked, “Is there anything illegal in the car?”

J.A. 181–82. Martin further testified that he later heard Dawson tell Buzzard that he pulled them

over because he'd seen Martin get in the car at Sheetz. 3

On cross, the government elicited that Martin had four prior felony convictions.

Buzzard, who was sequestered during Martin's testimony, similarly testified that Dawson simply

walked up to his window and asked whether he had anything illegal in the car. He denied that

Dawson introduced himself, told Buzzard the reason he'd stopped the car, or asked for Buzzard's

license and registration. Buzzard also testified that he'd later heard Dawson tell Messer that

Dawson had “seen Mr. Martin in the car and knew he was up to something.” J.A. 187. On cross,

the government asked whether Buzzard had talked with Martin about the case while in prison and,

when Buzzard answered no, impeached him with a recorded jail call in which Buzzard and Martin

spoke about the case with a woman Buzzard was dating at the time. 4

The government also elicited that Buzzard had three prior felony convictions.

Buzzard and Martin argue that Dawson's question violated their Fourth Amendment rights because

(1) it wasn't related to the traffic stop's mission, and (2) it unlawfully prolonged the stop. We take

each argument in turn.

*203 1.

[3] Buzzard and Martin contend that, by asking whether there was anything illegal in the vehicle,

Dawson “transformed a legitimate traffic stop into an investigation to see if Buzzard and Martin

were engaged in any criminal conduct.” Appellant's Br. at 14. Because the question was “directed

United States v. Buzzard, 1 F.4th 198 (2021)

toward general law enforcement goals, not the basis for the traffic stop or concerns for officer

safety,” they argue, “[t]he investigation unduly extended the traffic stop without Dawson having

reasonable suspicion to do so.” Id. at 14–15. The district court rejected this argument, reasoning

that the question was related to the stop's mission because it relates to both officer and highway

safety.

Buzzard and Martin rely primarily on Rodriguez v. United States, 575 U.S. 348, 135 S.Ct. 1609,

191 L.Ed.2d 492 (2015). There, a K-9 officer pulled over a vehicle that had slowly veered onto

the shoulder of the highway before jerking back onto the road. Rodriguez, 575 U.S. at 351, 135

S.Ct. 1609. The officer questioned the driver and the passenger, ran records checks on both men,

called for backup, wrote a warning ticket, and returned the men's documents.

Id. at 351–52, 135

S.Ct. 1609. He then asked for permission to walk his dog around the vehicle. Id. at 352, 135

S.Ct. 1609. The driver refused, but the officer did so anyway, and the dog alerted to the presence

of drugs.

Id. “All told, seven or eight minutes had elapsed from the time [the officer] issued

the written warning until the dog indicated the presence of drugs.”

Id. The police subsequently

searched the vehicle and found a large bag of methamphetamine.

Id.

The Supreme Court held that the dog sniff was outside the scope of the traffic stop's mission. Id.

at 356, 135 S.Ct. 1609. The Court explained that “the tolerable duration of police inquiries in the

traffic-stop context is determined by the seizure's ‘mission’—to address the traffic violation that

warranted the stop and attend to related safety concerns.” Id. at 354, 135 S.Ct. 1609 (cleaned up).

Because a dog sniff “is a measure aimed at detecting evidence of ordinary criminal wrongdoing”

and “[l]ack[s] the same close connection to roadway safety as [ ] ordinary inquiries, a dog sniff

is not fairly characterized as part of the officer's traffic mission.”

(cleaned up).

Id. at 355–56, 135 S.Ct. 1609

Here, the district court determined that Dawson's question related to officer safety, reasoning that

it “could expose dangerous weapons or narcotics” and that courts “have already recognized the

authority of officers conducting a traffic stop to inquire about dangerous weapons.” United States

v. Martin, 395 F. Supp. 3d 756, 760 (S.D.W. Va. 2019) (citing

United States v. Everett, 601 F.3d

484, 495 (6th Cir. 2010); Arizona v. Johnson, 555 U.S. 323, 327, 129 S.Ct. 781, 172 L.Ed.2d

694 (2009)) (cleaned up). The court also reasoned that “asking generally if illegal items are in the

vehicle relates to highway safety at least as much as searching for traffic warrants to ensure that

‘vehicles on the road are operated safely and responsibly’ or to ‘make[ ] it possible to determine

whether the apparent traffic violator is wanted for one or more previous traffic offenses.’ ” Id.

(quoting Rodriguez, 575 U.S. at 355, 135 S.Ct. 1609). Thus, the court held, Dawson's question

was permissible because it related to the traffic stop's mission.

United States v. Buzzard, 1 F.4th 198 (2021)

Viewing the evidence in the light most favorable to the government, we agree with the district

court that Dawson's question related to officer safety and thus related to the traffic stop's mission.

Dawson was outnumbered, and he asked the question because of “the time of night and the high

drug area, Mr. Martin's history and Mr. Martin's behavior.” J.A. 158. Given the *204 totality of

the circumstances, it makes sense that he needed to know more about what Buzzard and Martin

had in the car.

It's true that the question “Is there anything illegal in the vehicle?” could be interpreted more

broadly than one worded slightly differently (for example, “Is there anything dangerous in the

vehicle?” or “Are there weapons in the vehicle?”). But given the importance of officer safety and

the Supreme Court's repeated recognition that “[t]raffic stops are ‘especially fraught with danger

to police officers,’ ” Rodriguez, 575 U.S. at 356, 135 S.Ct. 1609 (quoting Johnson, 555 U.S.

at 330, 129 S.Ct. 781), we decline to require such laser-like precision from an officer asking a

single question in these circumstances.

[4] In any event, Dawson's question didn't extend the stop by even a second. In arguing that the

question unlawfully prolonged the stop, Buzzard and Martin again rely on

deciding

Rodriguez. Prior to

Rodriguez, the Supreme Court held that a dog sniff conducted during a lawful traffic

stop doesn't violate the Fourth Amendment. See

S.Ct. 834, 160 L.Ed.2d 842 (2005). In

Illinois v. Caballes, 543 U.S. 405, 408, 125

Rodriguez, the Court considered “whether the Fourth

Amendment tolerates a dog sniff conducted after completion of a traffic stop.”

135 S.Ct. 1609 (emphasis added). The Court said no, holding that:

575 U.S. at 350,

[A] police stop exceeding the time needed to handle the matter for which the

stop was made violates the Constitution's shield against unreasonable seizures. A

seizure justified only by a police-observed traffic violation, therefore, becomes

unlawful if it is prolonged beyond the time reasonably required to complete the

mission of issuing a ticket for the violation.

Id. at 350–51, 135 S.Ct. 1609 (cleaned up).

Viewing the evidence in the light most favorable to the government, Dawson was mid-stop when

he asked whether there was anything illegal in the vehicle. He didn't yet have the information

United States v. Buzzard, 1 F.4th 198 (2021)

he needed to perform the customary checks on the driver and vehicle, and he was waiting for an

additional officer to arrive so he could safely proceed with the stop. Because the question was

asked during a lawful traffic stop and didn't prolong the stop, it passes constitutional muster under

Rodriguez even if it exceeded the scope of the stop's mission. See United States v. Bowman,

884 F.3d 200, 210 (4th Cir. 2018) (“[P]olice during the course of a traffic stop may question a

vehicle's occupants on topics unrelated to the traffic infraction ... as long as the police do not

extend an otherwise-completed traffic stop in order to conduct these unrelated investigations.”)

(cleaned up). 5

The government contends that Dawson also had reasonable suspicion that Buzzard and

Martin were engaging (or about to engage) in criminal activity. Because we find that

Dawson's question was related to the stop's mission and didn't extend it, we need not decide

this issue.

Accordingly, we affirm the district court's denial of the motions to suppress.

III.

[5] Martin also challenges the district court's denial of his motion for acquittal of the felon in

possession charge. Specifically, he argues that there was insufficient evidence for the jury to

conclude that he possessed the guns recovered from the car.

[6] [7] [8] We review the denial of a motion for acquittal de novo. *205 United States v. Kiza,

855 F.3d 596, 601 (4th Cir. 2017). “We must uphold the jury's verdict if, viewing the evidence

in the light most favorable to the government, substantial evidence supports it.” Id. “[S]ubstantial

evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to

support a conclusion of a defendant's guilt beyond a reasonable doubt.”

780 F.3d 616, 630 (4th Cir. 2015).

United States v. Cornell,

Relevant here, the jury heard the following evidence. Before Martin met Buzzard at Sheetz that

night, the two used Facebook Messenger to arrange for Buzzard to sell the guns to Martin. They

negotiated the price, location, and timeframe for the sale, and the messages culminated with

United States v. Buzzard, 1 F.4th 198 (2021)

Buzzard arriving to pick up Martin from Sheetz. Indeed, surveillance footage from Sheetz shows

Martin getting into the car with Buzzard. And importantly, Buzzard testified that he physically

handed the guns to Martin when Martin got into the car.

Officer Dawson testified that, while he was searching Buzzard, he could see Martin “out of

the corner of [his] eye ... still rummaging through his pockets, and ... going down towards the

floorboard of where he was seated in the passenger seat.” J.A. 314. And after Martin was removed

from the car, he told Dawson that Buzzard had guns in the car that Buzzard was trying to get rid of.

The police eventually found a gun under the driver's seat towards the backseat and another gun

under the passenger's seat, both within reach of where Martin was sitting. Officer Adam Criss,

who arrived on the scene after Officer Messer and helped search the car, testified that he found a

white sock under the passenger's seat that “felt kind of heavy,” and when he handled the sock it

“felt like the handle of a pistol inside the sock.” J.A. 442–43.

This evidence was more than sufficient for the jury to conclude that Martin possessed the guns.

Martin knew that Buzzard had the guns in the car and intended to buy them. And not only did

Buzzard testify that he handed the guns to Martin when Martin got into the car, there's also plenty of

circumstantial evidence that Martin was the one who hid the guns under the driver's and passenger's

seats. 6

Martin contends that even if the jury believed that Buzzard handed him the socks, there's no

evidence that Martin knew there were guns inside them. But Officer Criss could tell there was

a gun inside one of the socks immediately upon handling it and, in any event, the evidence

indicating that Martin was the one who hid the guns suggests that he knew what they were.

We thus affirm the district court in denying Martin's motion for acquittal. And because Martin's

challenge to the revocation of his prior term of supervised release is based entirely on his assertion

that there wasn't substantial evidence for his conviction, we likewise affirm that decision.

***

Accordingly, the district court's judgments are

AFFIRMED.

All Citations

1 F.4th 198

United States v. Buzzard, 1 F.4th 198 (2021)

End of Document

NO. __________________

_____________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

______________________________________________________________________

JASON WATTIE BUZZARD and

PAUL WILLIAM MARTIN, Petitioners,

UNITED STATES OF AMERICA, Respondent.

_________________________________________________________________

APPENDIX B

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_________________________________________________________________

Gerald Morton Titus, III

Spilman, Thomas & Battle, PLLC

300 Kanawha Boulevard, East

Post Office Box 273

Charleston, West Virginia 25321

304/340-3800

gtitus@spilmanlaw.com

Counsel for Petitioner Jason Wattie Buzzard

Jonathan D. Byrne, Appellate Counsel

Counsel of Record

Wesley P. Page, Federal Public Defender

David R. Bungard, Assistant Federal Public Defender

Office of the Federal Public Defender

Southern District of West Virginia

300 Virginia Street, East, Room 3400

Charleston, West Virginia 25301

304/347-3350

jonathan_byrne@fd.org

Counsel for Petitioner Paul William Martin

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

UNITED STATES OF AMERICA,

CRIMINAL ACTION NO. 2:19-cr-00022

JASON WATTIE BUZZARD

MEMORANDUM OPINION AND ORDER

Pending before the court is the defendant’s Motion to Suppress [ECF No. 20].

The court held a hearing on this Motion on April 24, 2019, and ordered additional

briefing. The defendant and the government have submitted additional briefs, and

the matter is now ripe for review. For the following reasons, the Motion is DENIED.

Background

The defendant seeks to suppress several items of evidence that he claims were

unlawfully seized. At the suppression hearing, the court heard testimony of Paul

Martin, Defendant Jason Buzzard, and Officer Tyler Dawson. The parties agree that

on October 12, 2018, the defendant was leaving a gas station at approximately 1:36

a.m. when Officer Dawson stopped the defendant because of a defective brake light.

Officer Dawson testified that he made contact with Defendant Buzzard, the

driver, and testified that during these kinds of traffic stops, he “[a]lways advise[s]

[the driver] why [he] stopped them and then [he] always ask[s] for license and

JA - 253

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registration, proof of insurance.” Tr. Mot. Suppress 8:3–4. Officer Dawson testified

that while Defendant Buzzard was searching for the vehicle’s registration and

insurance, Defendant Buzzard stated that the vehicle was not his. Id. at 8:9–10.

Officer Dawson testified that he observed the passenger, Mr. Martin, appearing as if

he were about to run. Id. at 15:1–3. Officer Dawson explained that Mr. Martin was

moving and looking around and not making eye contact, but interrupting him while

he was speaking with Defendant Buzzard by saying things like “Hey, you know me,

we’re not up to anything. It’s just me.” Id. at 10–11. He stated that Mr. Martin would

lean forward, back, look right and look left. He explained that it was uncommon for

passengers to act the way that Mr. Martin was acting; most people, he said, would sit

still in their seat and listen to and watch the officer. Id. at 11:7–24. He testified that

he knew Mr. Martin from three other encounters. One included Mr. Martin riding his

bike around some vehicles late at night, where Officer Dawson suspected that Mr.

Martin might be breaking into cars. Id. at 8. The second was a run in at Thomas

Memorial Hospital where Mr. Martin was being treated for drug addiction. Id. at 9.

And the third was when Officer Dawson responded to a domestic dispute involving

Mr. Martin. Id. at 35:13–24. He explained that at the time of the stop, he knew that

Mr. Martin had a history of drug addition, that he just got out of prison, and that he

had prior felonies. Id. at 9–10.

Officer Dawson went on to testify that the area where he pulled over the

defendant was what he believes to be a high crime area, commonly involving

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narcotics, noting dozens of arrests made by him alone. Id. at 12. He explained a drug

trade practice of using the gas station wi-fi to set up deals and noted a known drug

house within a block of the stop. Id.

Officer Dawson testified that in a normal situation, he would run the driver’s

information—i.e., Defendant Buzzard’s driver’s license information and a warrant

check. He did not, however, run these routine checks. Id. at 14. Officer Dawson

testified that because there were two persons in the car, he decided to wait for an

additional officer. Id. at 14–15. Notably, he did not call for backup specifically as much

as he hoped for a second officer to arrive. He explained that when someone begins a

stop, his shift’s practice is to say, “Hey, I’ve got two occupants in the vehicle,” and

normally, another officer listening in will come to the scene. Id. at 15. Assuming that

a second officer would arrive, Officer Dawson decided to wait, and while waiting, he

asked Defendant Buzzard a single question: Is there anything illegal in the vehicle?

Indeed, Officer Dawson’s field case report states as follows:

I made contact with the driver/suspect Jason

Buzzard . . . . I observed the other suspect, Paul

Martin . . . , sitting in the front passenger seat of the

suspect vehicle. While speaking with Buzzard, I asked if he

had anything illegal in the vehicle.

Police Report [ECF No. 32-1] 2. When defense counsel asked Officer Dawson why he

asked that single question, Officer Dawson said that he asked it based on the time of

night, the location, Mr. Martin’s history, and Mr. Martin’s behavior. Tr. Mot.

Suppress 15.

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On the other hand, Defendant Buzzard and Mr. Martin, after being

sequestered, separately testified that the first question that Officer Dawson asked

immediately after approaching the car for the first time was whether there was

anything illegal in the car. Regardless of the timing, once asked, Defendant Buzzard

produced a bowl of marijuana that was hidden under his shirt. Mr. Martin told Officer

Dawson that he had one too and would eventually surrender a syringe. After a search

of the car, Officer Dawson found two firearms, one hidden under the driver’s seat and

the other hidden under the passenger’s seat. The police arrested Defendant Buzzard

and Mr. Martin and also confiscated Defendant Buzzard’s cell phone.

Defendant Buzzard moved to suppress the contraband. He argues that the

question “Is there anything illegal in the vehicle?” was beyond the scope of the

purpose of the stop and that by asking it, the question unlawfully prolonged the stop.

Consequently, he argues that in order to ask the “unrelated” question, Officer Dawson

needed reasonable suspicion or the defendant’s consent. The defendant does not

challenge the lawfulness of the traffic stop. Both parties agree that Officer Dawson

lacked consent. The court is presented with two questions: whether the single

question was related to the mission of the stop, and if not, whether the single question

unlawfully prolonged the stop.

II.

Legal Standard

When deciding a motion to suppress, the district court may make findings of

fact and conclusions of law. United States v. Stevenson, 396 F.3d 538, 541 (4th Cir.

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2005). During the hearing, “the credibility of the witness[es] and the weight to be

given the evidence, together with the inferences, deductions and conclusions to be

drawn from the evidence, are all matters to be determined by the trial judge.” United

States v. McKneely, 6 F.3d 1447, 1452–53 (10th Cir. 1993) (quoting United States v.

Walker, 933 F.2d 812, 815 (10th Cir. 1991)). See also Columbus–Am. Discovery Grp.

v. Atl. Mut. Ins. Co., 56 F.3d 556, 567 (4th Cir. 1995) (“[I]n the usual case, the

factfinder is in a better position to make judgments about the reliability of some forms

of evidence than a reviewing body acting solely on the basis of a written record of that

evidence. Evaluation of the credibility of a live witness is the most obvious example.”)

(quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S.

Cal., 508 U.S. 602, 623 (1993)). The burden of proof is on the party who seeks to

suppress the evidence. United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981).

Once the defendant establishes a basis for his motion to suppress, the burden shifts

to the government to prove the admissibility of the challenged evidence by a

preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n.14

(1974).

III.

Discussion

“[I]n determining whether a traffic stop is reasonable, [courts] apply the

standard articulated in Terry v. Ohio, 392 U.S. 1 (1968), wherein the court asks (1) if

the stop was ‘legitimate at its inception,’ United States v. Hill, 852 F.3d 377, 381 (4th

Cir. 2017), and (2) if ‘the officer’s actions during the seizure were reasonably related

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in scope to the basis for the traffic stop,’ Williams, 808 F.3d at 245.” United States v.

Bowman, 884 F.3d 200, 209 (4th Cir. 2018).

Taking these principles into account, in this case, the officer asked a single

question, whether there was anything illegal in the car. Police Report [ECF No. 321] 2. The first question before the court is whether this question was related to the

mission of the stop. The second question before the court is if the question was not

related to the mission of the stop, whether the single question unlawfully prolonged

the stop.

a. Whether the Question was Related to the Mission of the Traffic Stop

The United States Supreme Court has made clear that because “traffic stops

are ‘especially fraught with danger to police officers,’” an officer “may need to take

certain negligibly burdensome precautions in order to complete his mission safely.”

Rodriguez v. United States, 135 S. Ct. 1609, 1616 (2015) (quoting Arizona v. Johnson,

555 U.S. 323, 330 (2009)). “Unlike a general interest in criminal enforcement,

however, the government’s officer safety interest stems from the mission of the stop

itself.” Id. at 1616. For instance, an officer may order the driver out of the car for

safety purposes because officer safety weighs greater than the “‘de minimis’

additional intrusion of requiring a driver, lawfully stopped, to exit a vehicle.” Id.

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(citing Pennsylvania v. Mimms, 434 U.S. 106, 110–11 (1977)); see also Maryland v.

Wilson, 519 U.S. 408, 413–15 (expanding Mimms to include all passengers).

In addition, “an officer's mission includes ‘ordinary inquiries incident to [the

traffic] stop.’” Rodriguez, 135 S. Ct. at 1615 (quoting Illinois v. Caballes, 543 U.S. 405,

408 (2005)). “Typically such inquiries involve checking the driver's license,

determining whether there are outstanding warrants against the driver, and

inspecting the automobile's registration and proof of insurance.” Id. “These checks

serve the same objective as enforcement of the traffic code: ensuring that vehicles on

the road are operated safely and responsibly.” Id.

In this case, the officer asked the single question, whether there was anything

illegal in the car. Police Report [ECF No. 32-1] 2. Because the question is related to

officer safety, the question is therefore related to the mission of the stop itself. See

Rodriguez, 135 S. Ct. at 1615. The question could expose dangerous weapons or

narcotics. Courts have already recognized the authority of “officers conducting a

traffic stop [to] inquire about dangerous weapons.” United States v. Everett, 601 F.3d

484, 495 (6th Cir. 2010) (“[I]t would be irrational to conclude that officers cannot take

the ‘less intrusive [measure]’ of ‘simply [asking] whether a driver has a gun.’”); see

also Johnson, 555 U.S. at 327 (finding that a stop, which included the officer asking

if there were any weapons in the vehicle, was a legitimate stop). This single question

is certainly less intrusive than ordering the driver and passengers out of the car. See

Mimms, 434 U.S. at 110–11; see also Wilson, 519 U.S. at 413–15. As another court

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has reasoned, “If a police officer may, in the interest of officer safety, order all

occupants out of the vehicle for the duration of the stop without violating the Fourth

Amendment, the officer may take a less burdensome precaution to ensure officer

safety.” State v. Wright, 2019 WI 45, 926 N.W.2d 157, 163.

Further, asking generally if illegal items are in the vehicle relates to highway

safety at least as much as searching for traffic warrants to ensure that “vehicles on

the road are operated safely and responsibly” or to “make[] it possible to determine

whether the apparent traffic violator is wanted for one or more previous traffic

offenses.” Rodriguez, 135 S. Ct. at 1615. Indeed, Officer Dawson’s question would be

much more likely to dispel safety concerns than a database of past potentially

criminal conduct. It is also increasingly more likely that the single question would

dispose of related concerns than a warrant for a “previous traffic offense,” and

certainly more likely to ensure the vehicle is operating safely and responsibly than

checking the registration and proof of insurance. See Rodriguez,135 S. Ct. at 1615.

b. Whether the Question Unlawfully Prolonged the Stop

The “Fourth Amendment tolerate[s] certain unrelated investigations that [do] not

lengthen the roadside detention.” Id. at 1614 (citing Johnson, 555 U.S. at 327–28;

Caballes, 543 U.S. at 406, 408) (brackets added). “An officer, in other words, may

conduct certain unrelated checks during an otherwise lawful traffic stop,” but “he

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may not do so in a way that prolongs the stop, absent the reasonable suspicion

ordinarily demanded to justify detaining an individual.” Id.

Even assuming here that the single question, whether there is anything illegal in

the car, was not related to the mission of the traffic stop, the question did not violate

the Fourth Amendment because it did not lengthen the traffic stop. This is true

whether or not the question was asked initially, as the defendant argues, or after

initiating contact with the defendant, as the government argues. In either scenario,

the question was asked concurrently with the traffic mission related activities. The

defendant relies on Rodriguez to argue the question unconstitutionally extended the

stop. However, the temporal significance Rodriguez places on police actions for dog

sniffs is impractical as it pertains to officer questioning. Rodriguez answered the

question whether a dog sniff is allowed if it extends a traffic stop, even if for a few

minutes. Id. at 1612–17. Rodriguez specifically distinguished police questioning from

dog sniffs. Id. at 1615 (“A dog sniff, by contrast, is a measure aimed at ‘detect[ing]

evidence of ordinary criminal wrongdoing.’” Indianapolis v. Edmond, 531 U.S. 32, 40–

41 (2000)). Justice Alito noted in his dissent in Rodriguez that “it remains true that

police may ask questions aimed at uncovering other criminal conduct and may order

occupants out of their car during a valid stop.” Id. at 1625 n. 2 (Alito, J., dissenting).

Unlike prolonging a traffic stop for a dog sniff, a single question is such a de minimis

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extension of time that it likely cannot be measured. Therefore, the single question

could not have measurably prolonged the stop.

The Fourth Circuit has found that asking unrelated questions while waiting

for a background check did not prolong the stop.1 See United States v. Green, 740 F.3d

275, 281 (4th Cir. 2014) (finding that officers “brief questioning about matters

unrelated to the traffic violations did not run afoul of the scope component of Terry’s

second prong” when asked during a criminal history check). The Fourth Circuit said

again in Bowman that “police during the course of a traffic stop may question a

vehicle’s occupants on topics unrelated to the traffic infraction.” United States v.

Bowman, 884 F.3d 200, 210 (4th Cir. 2018) (citing Johnson, 555 U.S. at 333 (2009)).

In addition, commentators have noted that brief questioning may not prolong a stop

when an officer interrogates a single motorist while checking the motorist’s

documents or awaiting a criminal history or outstanding warrant check. See Tracey

Maclin, Anthony Amsterdam’s Perspectives on the Fourth Amendment, and What It

Teaches About the Good and Bad in Rodriguez v. United States, 100 MINN. L. REV.

1939, 1983 (2016). Here too, Officer Dawson’s single, noninvasive, general question

related to officer and highway safety asked while the defendant had yet to produce

United States v. Ortiz, 110 F.3d 61 (4th Cir. 1997) (unpublished table

decision), found that an officer was justified in inquiring wither the defendant had anything illegal in

the car because he had reasonable suspicion, being decided before Rodriguez, Ortiz did not evaluate

(1) whether the officer’s question was within the scope of the mission or (2) whether the officer’s

question unlawfully prolonged the stop. Nor did it need to with a finding of reasonable suspicion.

1 While the Fourth Circuit in

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registration and insurance did not prolong the stop any longer than reasonably

necessary to complete the stop’s mission.

Further, merely asking a general, broad question about whether anything

illegal is in the car does not begin a new investigation into other crimes. Officers can

always make general inquires; such general inquiries do not prolong traffic stops.

“Anything illegal in the car?” is an incidental question furthering legitimate law

enforcement goals. Such a question cannot be held to begin a new investigation into

other crimes.

I cannot find that Officer Dawson’s single question violated the defendant’s

Fourth Amendment rights and should invoke the extraordinary remedy of the

exclusionary rule. See Hudson v. Michigan, 547 U.S. 586, 591 (2006) (Exclusion “has

always been our last resort, not our first impulse.”). I FIND that Officer Dawson’s

single question was a constitutionally permissive question that not only was within

the scope of a traffic stop’s mission, but also did not unlawfully extend the defendant’s

seizure. Accordingly, because Officer Dawson’s question was both within the scope

of the mission and within the time reasonably necessary to complete the stop, a

finding of reasonable suspicion is unnecessary.

IV.

Conclusion

For the foregoing reasons, the defendant’s Motion to Suppress [ECF No. 20] is

DENIED. The court DIRECTS the Clerk to send a copy of this Memorandum Opinion

and Order to the defendant and counsel, the United States Attorney, the United

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States Probation Office, and the United States Marshal. The court further DIRECTS

the Clerk to post a copy of this published opinion on the court’s website,

www.wvsd.uscourts.gov.

ENTER:

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September 3, 2019

NO. __________________

_____________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

______________________________________________________________________

JASON WATTIE BUZZARD and

PAUL WILLIAM MARTIN, Petitioners,

UNITED STATES OF AMERICA, Respondent.

_________________________________________________________________

APPENDIX C

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_________________________________________________________________

Gerald Morton Titus, III

Spilman, Thomas & Battle, PLLC

300 Kanawha Boulevard, East

Post Office Box 273

Charleston, West Virginia 25321

304/340-3800

gtitus@spilmanlaw.com

Counsel for Petitioner Jason Wattie Buzzard

Jonathan D. Byrne, Appellate Counsel

Counsel of Record

Wesley P. Page, Federal Public Defender

David R. Bungard, Assistant Federal Public Defender

Office of the Federal Public Defender

Southern District of West Virginia

300 Virginia Street, East, Room 3400

Charleston, West Virginia 25301

304/347-3350

jonathan_byrne@fd.org

Counsel for Petitioner Paul William Martin

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

UNITED STATES OF AMERICA,

CRIMINAL ACTION NO. 2:19-cr-00021

PAUL WILLIAM MARTIN

MEMORANDUM OPINION AND ORDER

Pending before the court is the defendant’s Motion to Suppress [ECF No. 32].

The court held a hearing on this Motion on April 24, 2019, and ordered additional

briefing. The defendant and the government have submitted additional briefs, and

the matter is now ripe for review. For the following reasons, the Motion is DENIED.

Background

The defendant seeks to suppress several items of evidence that he claims were

unlawfully seized. At the suppression hearing, the court heard testimony of

Defendant Paul Martin, Jason Buzzard, and Officer Tyler Dawson. The parties agree

that on October 12, 2018, the defendant was leaving a gas station at approximately

1:36 a.m. when Officer Dawson stopped the defendant because of a defective brake

light.

Officer Dawson testified that he made contact with Mr. Buzzard, the driver,

and testified that during these kinds of traffic stops, he “[a]lways advise[s] [the

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driver] why [he] stopped them and then [he] always ask[s] for license and

registration, proof of insurance.” Tr. Mot. Suppress 8:3–4. Officer Dawson testified

that while Mr. Buzzard was searching for the vehicle’s registration and insurance,

Mr. Buzzard stated that the vehicle was not his. Id. at 8:9–10. Officer Dawson

testified that he observed the passenger, Defendant Martin, appearing as if he were

about to run. Id. at 15:1–3. Officer Dawson explained that Defendant Martin was

moving and looking around and not making eye contact, but interrupting him while

he was speaking with Mr. Buzzard by saying things like “Hey, you know me, we’re

not up to anything. It’s just me.” Id. at 10–11. He stated that Defendant Martin would

lean forward, back, look right and look left. He explained that it was uncommon for

passengers to act the way that Defendant Martin was acting; most people, he said,

would sit still in their seat and listen to and watch the officer. Id. at 11:7–24. He

testified that he knew Defendant Martin from three other encounters. One included

Defendant Martin riding his bike around some vehicles late at night, where Officer

Dawson suspected that Defendant Martin might be breaking into cars. Id. at 8. The

second was a run in at Thomas Memorial Hospital where Defendant Martin was

being treated for drug addiction. Id. at 9. And the third was when Officer Dawson

responded to a domestic dispute involving Mr. Martin. Id. at 35:13–24. He explained

that at the time of the stop, he knew that Defendant Martin had a history of drug

addition, that he just got out of prison, and that he had prior felonies. Id. at 9–10.

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Officer Dawson went on to testify that the area where he pulled over the

defendant was what he believes to be a high crime area, commonly involving

narcotics, noting dozens of arrests made by him alone. Id. at 12. He explained a drug

trade practice of using the gas station wi-fi to set up deals and noted a known drug

house within a block of the stop. Id.

Officer Dawson testified that in a normal situation, he would run the driver’s

information—i.e., Mr. Buzzard’s driver’s license information and a warrant check. He

did not, however, run these routine checks. Id. at 14. Officer Dawson testified that

because there were two persons in the car, he decided to wait for an additional officer.

Id. at 14–15. Notably, he did not call for backup specifically as much as he hoped for

a second officer to arrive. He explained that when someone begins a stop, his shift’s

practice is to say, “Hey, I’ve got two occupants in the vehicle,” and normally, another

officer listening in will come to the scene. Id. at 15. Assuming that a second officer

would arrive, Officer Dawson decided to wait, and while waiting, he asked Mr.

Buzzard a single question: Is there anything illegal in the vehicle? Indeed, Officer

Dawson’s field case report states as follows:

I made contact with the driver/suspect Jason

Buzzard . . . . I observed the other suspect, Paul

Martin . . . , sitting in the front passenger seat of the

suspect vehicle. While speaking with Buzzard, I asked if he

had anything illegal in the vehicle.

Police Report [ECF No. 32-1] 2. When defense counsel asked Officer Dawson why he

asked that single question, Officer Dawson said that he asked it based on the time of

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night, the location, Defendant Martin’s history, and Defendant Martin’s behavior. Tr.

Mot. Suppress 15.

On the other hand, the Defendant Martin and Mr. Buzzard, after being

sequestered, separately testified that the first question that Officer Dawson asked

immediately after approaching the car for the first time was whether there was

anything illegal in the car. Regardless of the timing, once asked, Mr. Buzzard

produced a bowl of marijuana that was hidden under his shirt. Defendant Martin told

Officer Dawson that he had one too and would eventually surrender a syringe. After

a search of the car, Officer Dawson found two firearms, one hidden under the driver’s

seat and the other hidden under the passenger’s seat. The police arrested Defendant

Martin and Mr. Buzzard and also confiscated Mr. Buzzard’s cell phone.

Defendant Martin moved to suppress the contraband. He argues that the

question “Is there anything illegal in the vehicle?” was beyond the scope of the

purpose of the stop and that by asking it, the question unlawfully prolonged the stop.

Consequently, he argues that in order to ask the “unrelated” question, Officer Dawson

needed reasonable suspicion or consent. Defendant Martin does not challenge the

lawfulness of the traffic stop. Both parties agree that Officer Dawson lacked consent.

The court is presented with two questions: whether the single question was related

to the mission of the stop, and if not, whether the single question unlawfully

prolonged the stop.

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