PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4257
WILLIE JAMES NEELY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Frank D. Whitney, District Judge.
(3:06-cr-00197-FDW-1)
Argued: January 28, 2009
Decided: April 29, 2009
Before WILLIAMS, Chief Judge, and MOTZ and SHEDD,
Circuit Judges.
Reversed by published per curiam opinion.
COUNSEL
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Adam Christopher Morris, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Exec-
2 UNITED STATES v. NEELY
utive Director, Kevin A. Tate, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, for Appellee.
OPINION
PER CURIAM:
Willie Neely entered a conditional guilty plea to one count
of being a felon in possession of a firearm, in violation of 18
U.S.C.A. § 922(g)(1) (West 2000), and was sentenced to
seventy-eight months of imprisonment and three years of
supervised release. Neely now appeals the denial of his
motion to suppress the firearm that served as the basis of that
charge, arguing that the district court erred by concluding
both that Neely consented to the search and, in the alternative,
that the search was justified under Terry v. Ohio, 392 U.S. 1
(1968). For the following reasons, we reverse.
I.
On April 13, 2006 at 2:59 a.m., Charlotte-Mecklenburg
Police Officer Dan Tran was on a routine patrol of The Plaza,
a high crime area in Charlotte, North Carolina. After Tran saw
a black Cadillac leaving The Plaza without its headlights on,
Tran pulled the vehicle over for the violation. The driver, Wil-
lie Neely, was the only occupant of the vehicle. Tran asked
Neely for his license and registration, which Neely readily
provided. A check on Neely’s license and registration
revealed no problems, and Officer Tran returned to the vehi-
cle, where Neely had remained in the driver’s seat, to give
Neely a verbal warning for failing to use his headlights. Offi-
cer Tran did not, however, return Neely’s license or registra-
tion.
UNITED STATES v. NEELY 3
Tran testified that he was just about to let Neely go, but he
first asked whether Neely had any "guns, weapons, grenades,
bazookas [in the vehicle]." (J.A. at 133.) Neely replied "no,"
and then he asked whether Tran would like to "check" his
trunk. (J.A. at 133.) Before Officer Tran responded, Neely
began fumbling with the trunk switch. After about thirty sec-
onds, Neely was still unable to open the trunk from his seat.
Although Neely had been cooperative, Tran asked Neely to
exit the vehicle because he believed that thirty seconds was an
unusual amount of time to locate and operate the trunk switch.
When he was told to get out of the vehicle, Neely turned off
the ignition, handed the keys to Tran, and got out of his car.
Tran had immediately directed Neely to the back of the vehi-
cle, and Neely complied, leaving his car door open. Arriving
at the rear of the car, Tran held Neely’s hands behind his back
and performed a pat-down search of his person. Finding no
weapons on Neely’s body, Tran directed Neely to sit on the
hood of the police car with another police officer. When Tran
questioned Neely about why he was out so late, Neely
responded that he was hungry and was going to the store to
get some bread. Although Neely had already produced a valid
vehicle registration, the other police officer asked Neely sev-
eral questions about the vehicle’s owner, the location of
Neely’s residence, and Neely’s permission to use the vehicle.
While Neely was being questioned by the other officer,
Tran began to search the interior of Neely’s car, even though
Neely had previously only offered for Tran to search the
trunk. After briefly searching behind the driver’s seat, Officer
Tran moved to the back passenger area of the car where he
found a firearm in the magazine pouch of the passenger side
front seat. Tran never searched the trunk during this encounter
with Neely. Officer Tran then left the gun and went to ask
Neely to sit in the back of the police car. Neely asked why he
was being placed in the car, and he eventually physically
struggled with the officers and fled. Neely was apprehended
at a later date.
4 UNITED STATES v. NEELY
A federal grand jury sitting in the Western District of North
Carolina indicted Neely on two counts, both arising from his
possession of the gun: one count of felon-in-possession, in
violation of 18 U.S.C.A. § 922(g)(1) ("Count One"), and one
count of possessing a firearm while under a domestic violence
restraining order, in violation of § 922(g)(8) ("Count Two").
Neely filed a motion to suppress, alleging that Tran’s search
of the passenger compartment of his vehicle violated his
Fourth Amendment rights. The district court denied the
motion at a hearing on January 11, 2007.
On January 29, 2007, Neely entered into a plea agreement
in which he agreed to enter a conditional plea of guilty to
Count One, but he preserved the right to appeal the denial of
his motion to suppress. On February 12, 2008, Neely was sen-
tenced to seventy-eight months of imprisonment and three
years of supervised release. Neely timely appealed, and we
have jurisdiction pursuant to 28 U.S.C.A. § 1291 (West
2006).
II.
On appeal, Neely argues that Tran’s search exceeded the
scope of his consent and that the search was not a valid pro-
tective search under United States v. Holmes, 376 F.3d 270
(4th Cir. 2004). In reviewing the denial of a motion to sup-
press, we review the district court’s legal conclusions de novo
and its factual findings for clear error. United States v. Jones,
356 F.3d 529 (4th Cir. 2004). We view the evidence in the
light most favorable to the prevailing party below — here, the
Government. Id.
The Fourth Amendment provides that "[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated . . . ." U.S. Const. amend. IV. "These rights are
not second-class rights, but rather are among the rights held
most sacred by the progenitors of the Bill of Rights and most
UNITED STATES v. NEELY 5
guarded by the common-law tradition." United States v.
McCoy, 513 F.3d 405, 410 (4th Cir. 2008) (internal quotation
marks and citations omitted). The Supreme Court has
announced the general rule that a search or seizure without
probable cause is unreasonable and, thus, unconstitutional.
See Kyllo v. United States, 533 U.S. 27, 32 (2001) (noting that
searches without probable cause are "presumptively unconsti-
tutional"). This general rule, however, is "subject to certain
exceptions," Bringham City v. Stuart, 547 U.S. 398 (2006),
and "[w]e are to approach the Fourth Amendment . . . with at
least some measure of pragmatism," Mora v. City of Gaithers-
burg, 519 F.3d 216, 222 (4th Cir. 2008).
A.
We first consider Neely’s argument that Officer Tran’s
search exceeded the scope of his consent. "Valid consent is a
well-recognized exception to the Fourth Amendment prohibi-
tion against warrantless searches." Trulock v. Freeh, 275 F.3d
391, 401 (4th Cir. 2001). In cases where a defendant argues
that law enforcement officers have exceeded the scope of a
valid consent search, we employ the standard of objective rea-
sonableness. The relevant question is "what would the typical
reasonable person have understood by the exchange between
the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248,
251 (1991).
Of course, a "suspect may impose limits on the items in an
area subject to the consent search." United States v. Jones,
356 F.3d at 534. "When an official search is properly autho-
rized – whether by consent or by the issuance of a valid war-
rant – the scope of the search is limited by the terms of its
authorization. Consent to search a garage would not implicitly
authorize a search of an adjoining house." Walter v. United
States, 447 U.S. 649, 656-57 (1980). By asking whether Offi-
cer Tran would like to "check" the trunk, Neely consented to
a search of his trunk. (J.A. at 133.) The district court, how-
ever, found that when Neely handed over the keys to his car,
6 UNITED STATES v. NEELY
left the door to his vehicle open, failed to object to the search
of the interior of his vehicle, and carried on a "relatively
friendly" conversation with another police officer while the
search was being carried out, he broadened the scope of his
original consent, which had been expressly limited to the
trunk of his vehicle, to include his entire vehicle. We dis-
agree.
We begin by addressing the first two factors relied upon by
the district court: Neely’s decision to hand his keys to Officer
Tran and leave the driver’s door open after exiting the vehi-
cle. While we acknowledge that non-verbal conduct can be
sufficient to establish consent, see, e.g., United States v. Hyl-
ton, 349 F.3d 781, 786 (4th Cir. 2003), such conduct is still
subject to Jimeno’s objective reasonableness standard. And,
the Government’s "burden is heavier where consent is not
explicit, since consent is not lightly to be inferred." United
States v. Impink, 728 F.2d 1228, 1232 (9th Cir. 1984) (inter-
nal quotation marks omitted). Here, Neely did not offer his
keys in response to a law enforcement officer’s request to
search his car, an action which might reasonably be viewed
as non-verbal consent. Nor did Neely offer his keys while
asking Officer Tran whether he would like to search his vehi-
cle. Instead, Neely surrendered his keys only after Officer
Tran instructed him to get out of the vehicle. Neely had
already verbally placed a limit on his consent to have his
vehicle searched; surrendering his keys to Officer Tran after
being ordered to get out of his car was consistent with his
prior limitation because Tran would need the keys to open
Neely’s trunk. Likewise, Neely’s decision to leave the driv-
er’s side door open is not indicative of non-verbal consent.
Officer Tran directed Neely to the rear of his car immediately
as he began exiting the vehicle; it is thus unsurprising that
Neely did not refuse to follow Tran’s directions simply so that
he could close the door behind him. Given the facts presented
here, we find that neither of these actions are sufficient to
overcome his prior verbal limitation.
UNITED STATES v. NEELY 7
Likewise, Neely’s failure to object, given the express limi-
tation placed on the scope of his consent, does not bear the
weight that the Government suggests. We have previously
held that "a suspect’s failure to object (or withdraw his con-
sent) when an officer exceeds limits allegedly set by the sus-
pect is a strong indicator that the search was within the proper
bounds of the consent search." Jones, 356 F.3d at 534. This
case, however, presents a far different factual scenario than
Jones. In Jones, law enforcement officers were given verbal
consent to search a duffel bag that contained a locked con-
tainer and the keys to open the locked container. Jones, 356
F.3d at 533. The defendant in Jones told officers that "what
you’re looking for is in that bag" and responded "sure, go
ahead" when the officers requested permission to search the
bag. Id. at 532. The locked box at issue in that case was
within the bag that the defendant gave officers permission to
search. Because the item in question was physically within the
location already consented to, it is reasonable for officers to
believe that silence is an indication that they have not
exceeded the boundaries of the defendant’s original consent.
Jones is thus inapposite to the specific circumstances pres-
ented here. The interior of Neely’s car is not physically part
of his trunk in the manner that the Jones lockbox was physi-
cally within the duffel bag and, thus, within the express scope
of the consent search.* See, e.g., New York v. Belton, 453
U.S. 454, 461 n.4 (1981)(distinguishing a trunk from contain-
ers found within the interior of a vehicle, such as glove com-
partments, consoles, and other receptacles). Because Neely’s
original consent did not physically encompass the interior of
his vehicle, under the specific circumstances of this case, we
do not find his silence sufficiently persuasive to overcome the
limitation he originally placed on the search.
*We find unpersuasive Officer Tran’s testimony that when Neely asked
Tran whether he wanted to check the trunk, he believed that "[b]asically
he gave me consent to search the car." (J.A. at 54.)
8 UNITED STATES v. NEELY
Finally, the fact that Neely continued speaking with an offi-
cer during the search is essentially meaningless. The video-
tape of the incident clearly provides that Neely merely
responded to the officer’s questioning; that decision has no
bearing on the scope of his consent. Moreover, taking these
factors together does not alter our conclusion. Neely’s deci-
sion to give Officer Tran his keys and leave his car door open
were the product of cooperation with a law enforcement offi-
cer, not an intentional indication of consent. Similarly,
Neely’s failure to object to a search carried out while he was
being questioned by a second police officer is not the type of
silence we found indicative of consent in Jones. Thus, Officer
Tran’s search of the interior of Neely’s vehicle cannot be jus-
tified on the basis of consent.
B.
As an alternative holding, the district court found the search
of Neely’s car was justified as a protective search. An officer
may search the interior of a vehicle incident to a lawful traffic
stop if he "possesses a reasonable belief based on specific and
articulable facts which, taken together with the rational infer-
ences from those facts, reasonably warrant the officer in
believing that [a] suspect is dangerous and . . . may gain
immediate control of weapons within the vehicle." Holmes,
376 F.3d at 276 (internal quotation marks omitted). Thus, our
inquiry is whether (1) Officer Tran could have reasonably
believed Neely was dangerous and, if so, (2) whether Officer
Tran could have reasonably believed that Neely could have
gained immediate control of weapons. We conclude that Offi-
cer Tran’s search does not survive the first prong of the
Holmes analysis because Tran could not have reasonably
believed Neely was dangerous. Holmes, 376 F.3d at 277.
When Tran initially stopped Neely for a headlights viola-
tion, Neely produced a valid license and registration. There is
no testimony that Neely was confrontational or threatening.
Tran himself testified that when he returned to the vehicle and
UNITED STATES v. NEELY 9
asked whether Neely possessed any weapons, he "didn’t sus-
pect that [Neely] had anything in the vehicle at all." (J.A. at
106.) After Officer Tran asked Neely about whether he pos-
sessed any weapons, Neely smiled, replied "no", and asked
Officer Tran whether he would like to "check" his trunk. (J.A.
at 133.) When Tran assented, Neely fumbled with his trunk
button for about 30 seconds, at which point Tran asked him
to step out of the vehicle. The district court found that Neely
was "very cooperative at this point." (J.A. at 137.) Neely sub-
mitted to a frisk and part of a field sobriety test. He then sat,
as directed, on the hood of Officer Tran’s vehicle and
answered the questions posed to him by a second police offi-
cer. Tran testified that Neely was always free to withdraw his
consent for the search, get his keys, and leave.
The district court found that Tran "had articulable suspi-
cion" to perform the vehicle search because Neely was in a
high crime area at 3:00 a.m. and "because of [Neely’s] fum-
bling." (J.A. at 139.) Fumbling in a dark car in the middle of
the night under the watchful eyes of two law enforcement
officers for a trunk button does not, without more, create a
reasonable suspicion that Neely was dangerous. And, we can-
not say that sufficient "more" was present here. Although the
district court notes the late hour, the high-crime area, Neely’s
stumbling out of the vehicle, and Officer Tran’s suspicion that
Neely was lying about his reasons for being out, this case
does not present the type of facts found sufficient in Holmes
or United States v. Elston, 479 F.3d 314 (4th Cir. 2007), to
warrant a protective search. The defendant in Holmes,
although cooperative during his search, was suspected to be
a violent gang member with an outstanding arrest warrant.
376 F.3d at 277-78. Similarly, the officers in Elston possessed
detailed information about the defendant due to a 911 call that
identified the defendant as threatening to shoot someone in
the near future. 479 F.3d at 318-19. By contrast, Officer Tran
had no information that would lead him to believe that Neely
either had committed violent crimes in his past or posed an
immediate threat to the public. Neely’s stumbling, his where-
10 UNITED STATES v. NEELY
abouts, the time of his encounter with Officer Tran, and Offi-
cer Tran’s suspicion that Neely was not truthful regarding his
motives for being out so late are relevant to whether a protec-
tive search was justified, but they are not dispositive. See Illi-
nois v. Wardlow, 528 U.S. 119, 124 (2000) (noting that
presence in an area of expected criminal activity is not dispo-
sitive, but one of many factors to be considered).
We acknowledge that this is a close case, and that several
facts present here, under different circumstances, might coun-
sel a different result. But Neely, unlike the defendants in
Holmes and Elston, was not thought to be a member of a vio-
lent gang with an outstanding arrest warrant or an imminent
violent threat based on a detailed 911 tip. There was no evi-
dence or suggestion that Neely was armed. Moreover, Neely
never hesitated or complained about following Tran’s orders,
never became belligerent, never threatened, intimidated, or in
any way suggested that he intended harm. He was not overly
nervous or evasive. These factors, combined with Officer
Tran’s testimony that Neely was free to leave at any time, ren-
der us unable to say that Neely’s actions or past behavior
allowed Officer Tran to reasonably believe Neely was danger-
ous. The simple discovery of a weapon cannot, of course,
create reasonable suspicion after the fact. As such, we are
unable to find that Tran’s search of Neely’s vehicle was justi-
fied under Holmes.
III.
Because Officer Tran’s search exceeded the scope of
Neely’s consent and cannot be justified under Terry, we find
that the search of the interior of Neely’s car was in violation
of his Fourth Amendment rights. For the foregoing reasons,
the judgment of the district court is
REVERSED.