UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4434
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIS TERRANCE DORSEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Florence. R. Bryan Harwell, District Judge. (4:16-cr-00575-RBH-1)
Submitted: June 21, 2018 Decided: August 1, 2018
Before KEENAN and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Florence, South Carolina, for Appellant. Beth Drake, United
States Attorney, Columbia, South Carolina, Alfred W. Bethea, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willis Terrance Dorsey appeals from his convictions and 97-month sentence
imposed pursuant to his guilty plea to possession with intent to distribute cocaine base
and possession of a firearm in furtherance of a drug trafficking crime. On appeal, he
challenges the denials of his motions to suppress and his sentence. We affirm.
I.
In reviewing a district court’s ruling on a motion to suppress, we review the
court’s factual findings for clear error, and its legal conclusions de novo.” United
States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008). When the district court denies a
defendant’s suppression motion, we construe “the evidence in the light most favorable to
the [G]overnment.” United States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005).
Dorsey first challenges the search of the rental vehicle he was driving. 1 Dorsey
was stopped by Officer Michael Swaringer, Jr., who testified that he observed Dorsey
swerving over both the center line (once) and the fog line (twice). Swaringer suspected
that Dorsey might be under the influence or tired. After stopping Dorsey, Swaringer
1
Because Dorsey was neither the renter nor an authorized driver of the vehicle, the
Government argues that he lacked standing to challenge the search. Based on this
argument, we held this case in abeyance awaiting the Supreme Court’s decision in Byrd
v. United States, 138 S. Ct. 1518 (2018). Byrd has now issued and the Court ruled there
that “the mere fact that a driver in lawful possession or control of a rental car is not listed
on the rental agreement will not defeat his or her otherwise reasonable expectation of
privacy.” Id. at 1531. As a result, Dorsey has standing to challenge the search of the
rental vehicle.
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stated that he developed reasonable suspicion to extend the stop to permit a dog sniff.
When the dog alerted, officers searched the car and seized a firearm.
Dorsey argues that Swaringer should not have stopped Dorsey’s vehicle because
weaving in traffic and failing to stay in the lane is not a traffic violation in South
Carolina. Dorsey further submits that there was a lack of evidence that he was weaving
out of his lane. South Carolina law states that “[a] vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be moved from the lane until the
driver has first ascertained that such movement can be made with safety.” S.C. Code
Ann. § 56-5-1900 (2018).
Where the police have probable cause to believe that a traffic violation has
occurred, a traffic stop and the resultant temporary detention may be reasonable.
Whren v. United States, 517 U.S. 806, 810 (1996). A traffic stop may also be
constitutionally permissible where the officer has a reasonable belief that “criminal
activity is afoot.” Whether probable cause or a reasonable articulable suspicion exists to
justify a stop depends on the totality of the circumstances. United States v. Cortez, 449
U.S. 411, 417-18 (1981).
Here, the officer’s observation of Dorsey’s repeated swerving out of his traffic
lane provided probable cause to believe that Dorsey’s failure to stay in his lane was
neither practicable nor safe and, therefore, in violation of South Carolina traffic law.
Moreover, the officer’s suspicion that Dorsey’s weaving might have been the result of an
impaired driver was reasonable, and driving under the influence is a crime. See South
Carolina v. Salisbury, 541 S.E.2d 247, 248-49 (S.C. 2001) (discussing elements of South
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Carolina crime of driving under the influence); see also Neal v. Virginia, 498 S.E.2d
422, 424-25 (Va. App. 1998) (collecting cases from various states holding that weaving
in one’s own lane, without more, is sufficient to stop the vehicle and investigate further);
United States v. Banks, 971 F. Supp. 992, 996 (E.D. Va. 1997) (finding reasonable
suspicion to believe that driver might be intoxicated or fatigued when car was traveling
slower than speed limit and weaving within its own lane); United States v. Patterson, 691
F. Supp. 908, 912 (D. Md. 1987) (noting that report of “erratic driving” provided
reasonable suspicion to stop a car as the “defendant might be driving while intoxicated”).
Dorsey next asserts that Swaringer lacked reasonable suspicion to detain Dorsey to
permit a dog sniff. If Swaringer had “reasonable, articulable suspicion of ongoing
criminal activity,” the initial stop could be extended to investigate. United States v.
Bowman, 884 F.3d 200, 213 (4th Cir. 2018). The reasonable suspicion standard is less
demanding than the probable cause or preponderance of the evidence standards. See
Illinois v. Wardlow, 528 U.S. 119, 123 (2000). However, the facts must “in their totality
serve to eliminate a substantial portion of innocent travelers.” Bowman, 884 F.3d at 213.
Dorsey contends that the totality of the circumstances did not support reasonable
suspicion. The facts articulated by Swaringer were as follows: the odor of recently
sprayed air freshener, several packages of a brand of cigars often used to smoke
marijuana, a supply of plastic baggies, the lack of a rental car contract, and the lack of a
valid license. While the first three facts were innocent on their face, Swaringer testified
that they were items frequently used in connection with drug trafficking. Specifically,
Swaringer stated that the air freshener smelled as though it had been “just sprayed,
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possibly attempting trying to mask an unknown odor.” He further averred that Swisher
Sweet cigars are “normally common used in the smoking of marijuana” and that it “stood
out as odd as to why someone would pack their glove box with sandwich baggies,” when
there was no evidence of “bread, sandwich meat, cheeses or anything like that inside the
vehicle.” We find that the totality of the circumstances would eliminate a substantial
portion of innocent travelers and that the totality of Dorsey’s conduct was indicative of
“more sinister behavior.” See Bowman, 884 F.3d 218-19; United States v. Foreman, 369
F.3d 776, 785 (4th Cir. 2004) (use of air freshener added to reasonable suspicion); United
States v. Williams, 271 F.3d 1262, 1271 (10th Cir. 2001) (finding discrepancies in rental
agreement added to reasonable suspicion); United States v. Sakyi, 160 F.3d 164, 169 (4th
Cir. 1998) (finding reasonable suspicion based on Phillies Blunt cigar box in the glove
compartment, where officer testified that such cigars are commonly used to smoke
marijuana).
Thus, Swaringer had both reasonable suspicion (to believe that a crime was being
committed) and probable cause (to believe a traffic violation had occurred) to initially
stop Dorsey’s car. Further, while conducting the traffic stop, the officer developed
reasonable suspicion to believe that Dorsey was engaged in criminal conduct involving
drugs. Thus, the brief detention to conduct a drug sniff was proper, and the dog’s alert
provided probable cause for the warrantless search of the vehicle. See Illinois v.
Caballes, 543 U.S. 405, 409 (2005). Accordingly, the district court properly denied
Swaringer’s motion to suppress.
II.
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Dorsey moved to suppress his statements to Swaringer at the time of his arrest and
his statements to other officers the day after his arrest. Swaringer testified at the
suppression hearing that, after the firearm was found, he asked Dorsey whether it was his
gun, and Dorsey replied that it was. However, the district court’s review of the videotape
showed that the officer asked Dorsey why he lied about not having a gun in the car, and
Dorsey’s response was unclear. In any event, whatever statement Dorsey made was not
preceded by Miranda 2 warnings, and thus, the district court suppressed the statement.
The next day, Dorsey was given warnings and interrogated by other officers. He denied
ownership of the firearm and stated that he had not admitted ownership the previous day.
Dorsey contends that the district court erred in denying his motion to suppress the
later statements. Citing Missouri v. Seibert, 542 U.S. 600 (2004), Dorsey appears to
complain that the officers who interrogated him engaged in impermissible two-step
questioning whereby they intentionally withheld Miranda warnings until Dorsey made
inculpating statements only then to deliver the proper warning and elicit the same
incriminating admissions. See id. at 604 (holding that giving “midstream” Miranda
warnings after interrogation and unwarned confession could not effectively comply with
Miranda’s constitutional requirement and a statement repeated after a warning should be
suppressed) (plurality opinion).
However, there is no evidence that Swaringer intentionally delayed delivering
Miranda warnings to provoke Dorsey’s admissions. This lack of deliberateness renders
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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Seibert inapplicable to Dorsey’s case. Without a showing of the officer’s subterfuge, the
mere fact that Dorsey made pre-Miranda statements and post-Miranda statements does
not render his post-Miranda statements involuntary and inadmissible. See Oregon v.
Elstad, 470 U.S. 298, 314 (1985) (holding “that, absent deliberately coercive or improper
tactics in obtaining the initial statement, the mere fact that a suspect has made an
unwarned admission does not warrant a presumption of compulsion” as to any
subsequent, post-warning statement); United States v. Mashburn, 406 F.3d 303, 307-10
(4th Cir. 2005) (holding that pre-warning questions will not render post-warning
responses involuntary and inadmissible if there was no evidence that officer’s failure to
convey Miranda warnings was deliberate or intentional and that the post-warning
statement was involuntarily made).
Here, Dorsey’s second statement was taken by investigators not involved in the
traffic stop. Moreover, his two statements appear to be contradictory, which further
supports the conclusion that Dorsey was not manipulated into confessing based on his
knowledge that the police already had elicited an earlier confession. Finally, there is no
evidence that Swaringer’s failure to give Miranda warnings was intentional; the
questioning was brief and immediately followed the discovery of the gun. Because there
is no evidence that officers deliberately engaged in a two-step strategy to elicit a
confession, the district court properly denied the motion to suppress.
III.
Finally, Dorsey argues that the district court misapprehended its authority to
impose a variance sentence on his drug conviction under Dean v. United States, 137 S.
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Ct. 1170, 1178 (2017). Dean held that “[n]othing in [18 U.S.C.] § 924(c) [(2012)]
restricts the authority conferred on sentencing courts . . . to consider a sentence imposed
under § 924(c) when calculating a just sentence for the predicate count.” 137 S. Ct. at
1176-77. Here, the district court clearly understood its authority to vary but chose to
impose a Guidelines sentence on the drug charge. The court stated that it did so based on
Dorsey’s “Criminal History Category.” The court further averred that it considered the
sentence on the drug charge “for a while” and took into account Dorsey’s mitigating
circumstances, but ultimately determined that Dorsey’s serious conduct required a
Guidelines sentence. As such, this claim is without merit.
Accordingly, we affirm. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
AFFIRMED
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