UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4492
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
AWAL MOHAMMED,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:12-cr-00005-JKB-2)
Submitted: April 29, 2014 Decided: May 22, 2014
Before GREGORY, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barbara E. Kittay, BARBARA E. KITTAY, ESQUIRE, Rockville,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Kenneth S. Clark, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Awal Mohammed appeals the criminal judgment entered
following his conviction by a jury of possession with intent to
distribute 100 grams or more of heroin and conspiracy to
distribute and possess with intent to distribute a kilogram of
heroin. On appeal, Mohammed challenges only the district
court’s denial of his pretrial motions to suppress both heroin
seized during a traffic stop of a vehicle in which he was a
passenger and statements he made during a custodial
interrogation subsequent to his arrest at that stop. For the
reasons that follow, we affirm.
When considering a district court’s ruling on a motion
to suppress, we review the district court’s legal conclusions de
novo and its factual findings for clear error. United States v.
McGee, 736 F.3d 263, 269 (4th Cir. 2013), cert. denied, __ S.
Ct. __, 2014 WL 713333 (U.S. Mar. 24, 2014) (No. 13-8810).
Where the district court denied the suppression motion, we
construe the evidence in the light most favorable to the
Government. United States v. Black, 707 F.3d 531, 534 (4th Cir.
2013). We defer to the district court’s credibility findings.
United States v. Griffin, 589 F.3d 148, 150-51 n.1 (4th Cir.
2009).
Mohammed challenges both the stop of the vehicle and
its subsequent search as violative of the Fourth Amendment. As
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a passenger in a stolen vehicle, Mohammed lacks standing to
challenge the search of the vehicle. United States v. Carter,
300 F.3d 415, 421 (4th Cir. 2002); United States v. Hargrove,
647 F.2d 411, 412 (4th Cir. 1981). Thus, we decline to review
Mohammed’s challenges to the validity of the canine alert that
precipitated the vehicle search. However, Mohammed does have
standing to challenge the stop and his resulting seizure.
United States v. Rusher, 966 F.2d 868, 874 (4th Cir. 1992).
We evaluate the legality of a traffic stop under the
Fourth Amendment by applying the two-prong test in Terry v.
Ohio, 392 U.S. 1 (1968). United States v. Green, 740 F.3d 275,
279 (4th Cir. 2014). Under this test, we consider (1) “whether
the police officer’s action was justified at its inception,” and
(2) “whether [his] subsequent actions were reasonably related in
scope to the circumstances that justified the stop.” United
States v. Digiovanni, 650 F.3d 498, 506 (4th Cir. 2011).
Reviewing the record under this standard, we conclude
the district court properly denied the suppression motions. The
district court found credible testimony that the driver of the
vehicle committed a traffic violation by following the vehicle
in front of him too closely, in violation of Maryland law. Md.
Code Ann., Transp. § 21-310(a) (2009). We may not second-guess
the district court’s credibility determinations, see Griffin,
589 F.3d at 150-51 n.1, and Mohammed fails to demonstrate that
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this finding is clearly erroneous. “Observing a traffic
violation provides sufficient justification for a police officer
to detain the offending vehicle for as long as it takes to
perform the traditional incidents of a routine traffic stop.”
United States v. Branch, 537 F.3d 328, 335 (4th Cir. 2008).
Although Mohammed asserts that the traffic violation was a
pretext used to justify a search of the vehicle, even a
pretextual stop is permissible if, as here, the officer had an
objectively valid basis for the stop. United States v. Kellam,
568 F.3d 125, 136 (4th Cir. 2009). Thus, the stop was justified
at its inception.
To satisfy Terry’s second prong, the traffic stop must
be reasonable in both scope and duration. Florida v. Royer, 460
U.S. 491, 500 (1983). A traffic stop is appropriately limited
in scope if “the investigative methods employed [are] the least
intrusive means reasonably available to verify or dispel the
officer’s suspicion in a short period of time.” Digiovanni, 650
F.3d at 507 (internal quotation marks omitted). Its duration is
reasonable if “the police diligently pursued a means of
investigation that was likely to confirm or dispel their
suspicions quickly, during which time it was necessary to detain
the defendant.” Id. (internal quotation marks omitted).
A routine traffic stop involves requesting license and
registration, running a computer check, and issuing a citation.
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Green, 740 F.3d at 280. “An officer may also conduct an
exterior dog sniff of the vehicle, as long as it is ‘performed
within the time reasonably required to issue a traffic
citation.’” Id. (quoting Branch, 537 F.3d at 335). The officer
may question both the driver and passengers regarding matters
unrelated to the traffic stop, as long as “the unrelated
questioning does not extend the encounter beyond the period
reasonably necessary to effectuate the purposes of the lawful
detention.” United States v. Mason, 628 F.3d 123, 131 (4th Cir.
2010). Thus, where “the entire time before the search was
occupied with traffic stop procedures,” the stop does “not
constitute an unlawful seizure in violation of the Fourth
Amendment.” United States v. Jeffus, 22 F.3d 554, 557 (4th Cir.
1994). Where the extension of a traffic stop is more than de
minimus, the officer must have either the driver’s consent or a
reasonable suspicion, supported by specific and articulable
facts, that illegal activity is afoot. Branch, 537 F.3d at 336.
While Mohammed invokes Digiovanni to argue that his
traffic stop was both unjustified and impermissibly broad, we
find this case readily distinguishable. Our review of the
record confirms that the traffic stop at issue here was not
unreasonable in scope or duration. Rather, the arresting
officer diligently pursued the purpose of the stop until the
canine alert indicated the presence of drugs in the vehicle.
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Any limited questioning outside the scope of the traffic stop
produced only a de minimus delay that does not run afoul of the
Fourth Amendment. See Mason, 628 F.3d at 130-33 (concluding
that additional questioning for less than two and a half minutes
about itinerary and vehicle ownership, plus one minute of
questioning to passenger, were not unreasonable extension of
traffic stop). The dog’s positive alert, in turn, provided
probable cause for the search of the vehicle. Id. at 130.
Finally, Mohammed addresses the substance of his
continued detention after the discovery of heroin in the vehicle
— either as an extended investigatory detention or as an arrest
based on probable cause — only in his reply brief. He did not
fairly raise this issue in his opening brief, and it is not
properly before us. See United States v. Brooks, 524 F.3d 549,
556 & n.11 (4th Cir. 2008) (deeming claim raised for first time
in reply brief abandoned). Because Mohammed fails to
demonstrate that the district court erred in concluding that the
stop and search were unlawful, his argument that the statements
and drugs should have been suppressed as fruits of the poisonous
tree also necessarily fails.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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