PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4696
OBIE LEE POWELL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, Senior District Judge.
(8:07-cr-00162-PJM-1)
Argued: September 23, 2011
Decided: November 14, 2011
Before KING, SHEDD, and FLOYD, Circuit Judges.
Vacated by published opinion. Judge Shedd wrote the major-
ity opinion, in which Judge Floyd joined. Judge King wrote
a dissenting opinion.
COUNSEL
ARGUED: Daniel W. Stiller, FEDERAL DEFENDER SER-
VICES OF WISCONSIN, INCORPORATED, Milwaukee,
Wisconsin, for Appellant. Jonathan C. Su, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for
2 UNITED STATES v. POWELL
Appellee. ON BRIEF: Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, for Appellee.
OPINION
SHEDD, Circuit Judge:
During a routine traffic stop in Seat Pleasant, Maryland,
police removed Obie Lee Powell, who was a passenger, from
the vehicle and performed an officer-safety patdown on him.
Based on evidence obtained by police after the patdown, a
federal grand jury indicted Powell for possession with intent
to distribute crack cocaine, possession of a firearm by a con-
victed felon, and possession of a firearm in furtherance of a
drug trafficking crime. Before trial, Powell moved to suppress
this evidence, arguing that the officers obtained it in violation
of the Fourth Amendment. Following an evidentiary hearing,
the district court denied the motion, holding (inter alia) that
the officers had reasonable suspicion that Powell was armed
and dangerous and were thus entitled to frisk him. Thereafter,
a jury convicted Powell of the lesser-included offense of sim-
ple possession of crack cocaine and acquitted him of the other
charges, and the court sentenced him to a 63-month term of
imprisonment. On appeal, Powell contends that the court
erred by denying his suppression motion.
In a case such as this, where law enforcement officers
briefly patdown a person for safety reasons, reasonable suspi-
cion that the person is armed and dangerous is necessary in
order for the patdown to be lawful under the Fourth Amend-
ment. Terry v. Ohio, 392 U.S. 1 (1968). Earlier this year, in
United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011), we
noted "our concern about the inclination of the Government
toward using whatever facts are present, no matter how inno-
cent, as indicia of suspicious activity." Twice in the past few
months, we reiterated this concern. See United States v.
UNITED STATES v. POWELL 3
Massenburg, 654 F.3d 480, 482 (4th Cir. 2011); United States
v. Digiovanni, 650 F.3d 498, 512 (4th Cir. 2011). In all three
cases, we held that the Government failed to meet its minimal
burden of articulating facts sufficient to support a finding of
reasonable suspicion. Today, we once again are presented
with a case in which the Government has attempted to meet
its burden under Terry by cobbling together a set of facts that
falls far short of establishing reasonable suspicion. For this
reason, we vacate the judgment.
I
We construe the evidence in the light most favorable to the
Government, the prevailing party below. United States v.
Kelly, 592 F.3d 586, 589 (4th Cir.), cert. denied, 130 S.Ct.
3374 (2010). During the evidentiary hearing, the Government
presented the testimony of three witnesses who were
employed by the Seat Pleasant Police Department and were
present at the traffic stop: Officer Catrina Davis, Officer
Christopher Shelby, and Corporal Leroy Patterson.1 With the
exceptions noted below, the parties agree that the testimony
establishes the following facts, which are consistent with the
district court’s findings.
On the night of November 21, 2006, while on routine
patrol, Officer Davis observed a 1997 Buick occupied by
three individuals pull out from a parking lot. Powell was a
passenger in the backseat of the Buick. Because the Buick had
a burned-out headlight, Officer Davis stopped it. The stop
occurred without incident.
Officer Davis made contact with the driver, Jermaine
1
On the night in question, Officer Davis had been employed by the Seat
Pleasant Police Department for approximately one year, and she was being
field-trained by Corporal Patterson, who had been employed by the
Department for four years. The record is silent concerning Officer Shel-
by’s law enforcement experience.
4 UNITED STATES v. POWELL
Mitchell, and obtained his driver’s license and vehicle regis-
tration. At the same time, Corporal Patterson, who was on
patrol with Officer Davis, approached the passenger side. As
Officer Davis returned to her patrol car to process Mitchell’s
traffic citation, Corporal Patterson engaged in an amicable
conversation with Powell. The topics of this conversation
included their mutual appreciation of fish sandwiches (which
Powell was eating) and music (which was audible in the
Buick). During this conversation, Officer Shelby arrived to
provide back-up assistance and joined Corporal Patterson at
the passenger side of the Buick. A fourth officer was on the
scene, but that officer does not appear to have played a mate-
rial part in the traffic stop.
At some point, Powell indicated that he needed to pick up
a child, and he asked how long the traffic stop would last.
Corporal Patterson responded that he could not be certain
about the expected duration of the traffic stop, and he told
Powell that he was free to leave if he so desired. Powell
declined the offer and remained in the Buick.
Eventually, an incoming radio communication advised
Officer Davis, who was in her patrol car, that Mitchell’s
license was suspended. Officer Shelby, who was still standing
by the Buick passenger side, heard this communication on his
personal radio, and he asked Powell and the other passenger
(identified as "Tawanda") if either one of them had a valid
driver’s license.2 Although Officer Shelby’s reason for asking
2
Presumably based on Officer Davis’ testimony, the district court found
that Officer Shelby asked for a "valid" driver’s license. J.A. 87. Powell
contends that this finding is clearly erroneous because Officer Shelby and
Corporal Patterson testified that Officer Shelby only asked for a driver’s
license (not a "valid" license), and Officer Davis was in the patrol car
when the question was asked. To the extent that this contention is properly
before us, Powell is correct about the witnesses’ respective testimony and
vantage points, but those factors do not render the court’s finding clearly
erroneous. Notwithstanding her vantage point, Officer Davis testified that
she heard Officer Shelby ask for the license, see J.A. 28, and her testi-
mony is sufficient to support the finding.
UNITED STATES v. POWELL 5
was to ascertain if either passenger could drive the vehicle
away after the completion of the traffic stop, which they
would have been permitted to do, he did not communicate
that reason to Powell or Tawanda.
Powell gave his license to Officer Shelby who, in turn,
checked its status via radio. A responsive radio communica-
tion indicated that the license was suspended and that Powell
had "priors" for armed robbery. This latter information,
known as "caution data," comes from a computer database
and is communicated to police in Seat Pleasant anytime a per-
son has ever been charged with a crime, no matter when the
charge was made or its disposition. Regarding "priors" gener-
ally, Officer Shelby explained: "It’s just a prior. It doesn’t
mean that they [sic] up to the same activity, but at which time
you still have to take that into consideration, that they may
still be armed or may still be conducting the same business."
J.A. 53. Regarding Powell’s "priors" specifically, Officer
Shelby explained that he "had no way of knowing whether
that was yesterday’s news or 15 years ago news," and "[n]o
way of knowing whether that was a conviction or an exonera-
tion." Id.
At the time the caution data was broadcast, neither Powell
nor the other occupants of the Buick had appeared suspicious
or presented any threat or problem to the officers. Nonethe-
less, based solely on the caution data, Officer Shelby ordered
Powell from the Buick and began to perform a patdown on
him. During the patdown, Powell became nervous and twice
dropped to one knee.3 Thereafter, Powell unsuccessfully
3
At oral argument, the Government asserted for the first time that Pow-
ell was nervous before the patdown began. For support, the Government
pointed to the district court’s observation that "[t]here is some testimony
that [Powell] appeared to be somewhat nervous." J.A. 88. Read in context,
the court’s observation clearly refers to Powell’s demeanor after the pat-
down began, see id. (lines 2-7), and this reading is consistent with the evi-
dence in the record. See, e.g., J.A. 19-20 (Officer Davis’ testimony that
Powell "was being cooperative" but "seemed a little bit nervous" while the
patdown was occurring); J.A. 49 (Officer Shelby’s testimony that Powell
"kind of was nervous" after the patdown began).
6 UNITED STATES v. POWELL
attempted to run from the officers, but he only got a few steps
before they regained control over him and placed him in
handcuffs. At this time, Powell was not under arrest.
Once the officers secured Powell, Corporal Patterson
removed a backpack from the Buick near where Powell had
been sitting. After finding a handgun in the backpack, the
officers arrested Powell. During a search incident to the
arrest, the officers found the crack cocaine that forms the
basis for his conviction. At the conclusion of the traffic stop,
Mitchell was cited for the traffic violation, and he and
Tawanda were permitted to leave. The Buick was left parked
on the street.
II
On appeal, Powell concedes the lawfulness of both the traf-
fic stop and his subsequent removal from the Buick. See
Maryland v. Wilson, 519 U.S. 408, 415 (1997) (holding that
"an officer making a traffic stop may order passengers to get
out of the car pending completion of the stop"). However, he
contends that Officer Shelby unlawfully patted him down
after he exited the Buick because the officers did not have a
reasonable basis to suspect that he was armed and dangerous.
Powell’s argument is grounded generally in "the basic rule
that searches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment - subject only to a few specifi-
cally established and well-delineated exceptions," Arizona v.
Gant, 556 U.S. 332, 129 S.Ct. 1710, 1716 (2009) (citation and
internal quotation marks omitted), and, therefore, before an
officer "places a hand on the person of a citizen in search of
anything, he must have constitutionally adequate, reasonable
grounds for doing so," Sibron v. N.Y., 392 U.S. 40, 64 (1968).
More specifically, Powell’s argument is based on the hold-
ing in Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781, 784
(2009), in which the Court extended the "stop and frisk" rule
UNITED STATES v. POWELL 7
announced in Terry to passengers in a routine traffic stop. The
Johnson Court held: "To justify a patdown of the driver or a
passenger during a traffic stop, . . . just as in the case of a
pedestrian reasonably suspected of criminal activity, the
police must harbor reasonable suspicion that the person sub-
jected to the frisk is armed and dangerous." Id. As Powell
notes, at the time Officer Shelby began the patdown, his inter-
action with the officers had been entirely amicable and he
(like the driver and other passenger) had been cooperative.
Thus, in Powell’s view, the officers lacked reasonable suspi-
cion that he was armed and dangerous.
Although the Government presented several arguments
below, its only written appellate argument is that the officers
had reasonable suspicion to conduct the patdown. See Brief of
United States, at 9 (noting that "the sole disputed issue is
whether Officer Shelby reasonably suspected that Powell was
armed and dangerous").4 In its appellate brief, the Govern-
ment specifically points to two factors to support its conten-
tion: the caution data regarding Powell and Powell’s
purported deliberate misrepresentation concerning the validity
of his driver’s license. See, e.g., id. at 1, 21. According to the
Government: "Officers cannot be expected to blind them-
selves to obvious risks of danger when a person they encoun-
ter demonstrates a willingness to be untruthful, especially
when there is information that the person has been involved
previously in violence." Id. at 21.
4
The Government also argued below that Powell lacks standing to chal-
lenge the search of the Buick, the search of the Buick was a lawful inven-
tory search, and the search of Powell following his arrest was lawful as
incident to the arrest. At oral argument, the Government also briefly
asserted that Powell’s attempt to flee constitutes a separate crime justify-
ing the search. See United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir.
1997) (holding that if a suspect responds to an illegal stop by committing
a new, distinct crime, then the police constitutionally may arrest the sus-
pect for that crime). By not presenting any of these arguments in its appel-
late brief, the Government has abandoned them. See Snyder v. Phelps, 580
F.3d 206, 216 (4th Cir. 2009), aff’d, 131 S.Ct. 1207 (2011).
8 UNITED STATES v. POWELL
The standards governing our determination of reasonable
suspicion are well-defined. In the context of this case, reason-
able suspicion is a particularized and objective basis for sus-
pecting that the person to be frisked is armed and dangerous.
Ornelas v. United States, 517 U.S. 690, 696 (1996).5 "The
officer need not be absolutely certain that the individual is
armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety
or that of others was in danger." Terry, 392 U.S. at 27.6 "The
determination of reasonable suspicion must be based on com-
monsense judgments and inferences about human behavior,"
Illinois v. Wardlow, 528 U.S. 119, 125 (2000), and it is mea-
sured by the totality of the circumstances, United States v.
Arvizu, 534 U.S. 266, 273 (2002).
"The reasonable suspicion standard is an objective one, so
we examine the facts within the knowledge of [the officers]
to determine the presence or nonexistence of reasonable sus-
picion." Digiovanni, 650 F.3d at 511. "The reasonableness of
official suspicion must be measured by what the officers
knew before they conducted their search." Florida v. J.L., 529
U.S. 266, 271 (2000). The Government bears the burden of
5
Reasonable suspicion is also the standard that justifies a Terry stop
when an officer believes that criminal activity may be afoot. That determi-
nation differs from the one before us — i.e., whether a lawfully detained
person may be armed and dangerous and thus subject to a Terry frisk. See
Johnson, 129 S.Ct. at 784. However, the general reasonable suspicion
standard is the same in both instances.
6
Of course, all roadside traffic encounters are potentially dangerous for
law enforcement officers. See Johnson, 129 S.Ct. at 786-87. However, the
inherent potential danger is not enough, by itself, to justify a patdown. See
Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979) ("Nothing in Terry can be
understood to allow a generalized ‘cursory search for weapons’ or indeed,
any search whatever for anything but weapons. The ‘narrow scope’ of the
Terry exception does not permit a frisk for weapons on less than reason-
able belief or suspicion directed at the person to be frisked. . . ."); United
States v. Burton, 228 F.3d 524, 529 (4th Cir. 2000) (noting that "in the
absence of reasonable suspicion, an officer may not frisk a citizen merely
because he feels uneasy about his safety").
UNITED STATES v. POWELL 9
articulating facts sufficient to establish reasonable suspicion,
Burton, 228 F.3d at 528, and although the standard of proof
"is obviously less demanding than that for probable cause,"
the government "must be able to articulate something more
than an inchoate and unparticularized suspicion or hunch,"
United States v. Sokolow, 490 U.S. 1, 7 (1989). As we
recently explained:
[T]he Government must do more than simply label
a behavior as "suspicious" to make it so. The Gov-
ernment must also be able to articulate why a partic-
ular behavior is suspicious or logically demonstrate,
given the surrounding circumstances, that the behav-
ior is likely to be indicative of some more sinister
activity than may appear at first glance.
Foster, 634 F.3d at 248.7
We review the district court’s reasonable suspicion deter-
mination de novo, bearing in mind that reasonable suspicion
is to be determined on a case-by-case basis, and thus one
determination will seldom be useful precedent for another.
Ornelas, 517 U.S. at 698-99. Applying the foregoing stan-
dards to the facts of this case, we have no hesitation in con-
cluding that the Government has failed to meet its burden of
establishing that the officers had reasonable suspicion that
Powell was armed and dangerous when the patdown began.
7
Notably, Officer Davis testified that a patdown is conducted anytime
an officer orders a person out of a vehicle. J.A. 32. Although this practice
seems to run afoul of Terry, it does not necessarily do so because of the
possibility (albeit remote) that Seat Pleasant officers order passengers out
only when they believe them to be armed and dangerous. See United
States v. Tinnie, 629 F.3d 749, 753 n.2 (7th Cir. 2011). Regardless,
because our inquiry is an objective one, we are not concerned with the
officers’ subjective intent. Id.
10 UNITED STATES v. POWELL
III
We begin our analysis by viewing the traffic stop in its
overall context. See United States v. Branch, 537 F.3d 328,
338 (4th Cir. 2008) ("Context is important in evaluating a rea-
sonable suspicion determination."). The officers’ interaction
with Powell began as part of a routine traffic stop on a public
road, and there is no evidence in the record that it occurred in
either a high-crime area or at a similarly unsafe location. For
much of the traffic stop, the four officers on the scene out-
numbered the three occupants of the Buick. Before Officer
Shelby began the patdown, Powell and the other occupants of
the vehicle were entirely amicable and cooperative with the
officers, they did not engage in any threatening or evasive
conduct, and they did not display any of the tell-tale signs typ-
ically associated with illegal or dangerous activity (e.g., evi-
dence of drug-dealing, gang affiliation, or a possible
concealed weapon). It is particularly telling that Corporal Pat-
terson told Powell during the traffic stop that he was free to
leave if he wanted, which is an implicit acknowledgement that
he did not consider Powell to be armed and dangerous. Cf.
Johnson, 129 S.Ct. at 788 ("Officer Trevizo surely was not
constitutionally required to give Johnson an opportunity to
depart the scene after he exited the vehicle without first ensur-
ing that, in so doing, she was not permitting a dangerous per-
son to get behind her.").8
Standing alone, this context clearly provides no basis for
the officers to reasonably suspect that Powell might have been
armed and dangerous. Until Powell was removed from the
Buick, the traffic stop itself could be considered remarkable,
8
Powell was "seized" when the stop occurred, but his initial seizure
ended when Corporal Patterson gave him permission to leave. See
Brendlin v. California, 551 U.S. 249, 256-58 (2007). However, Powell
was again seized when Officer Shelby ordered him from the Buick for the
patdown. See Terry, 392 U.S. at 16 (noting that "whenever a police officer
accosts an individual and restrains his freedom to walk away, he has
‘seized’ that person").
UNITED STATES v. POWELL 11
if at all, only because of its amicable, cooperative, and rela-
tively safe nature. Although we believe this context is impor-
tant to a complete understanding of the issue before us, the
inquiry does not end there. "A passenger’s conduct may be
sufficient to arouse reasonable suspicion, but it is not neces-
sary when other factors are present." United States v. Sakyi,
160 F.3d 164, 169-70 (4th Cir. 1998) (citation omitted); see
also United States v. Holmes, 376 F.3d 270, 278 (4th Cir.
2004) (noting that "a suspect’s cooperation with police offi-
cers during a Terry stop does not, by itself, extinguish con-
cerns that police may harbor about that suspect’s
dangerousness").
We therefore move further in our examination of the total-
ity of the circumstances that were present when the patdown
began. As noted, the Government has articulated two factors
in its appellate brief to support its reasonable suspicion argu-
ment: the caution data and Powell’s purported deliberate mis-
representation regarding his driver’s license. We will
separately address each of these factors before evaluating
them together with the other circumstances of the traffic stop.
See Foster, 634 F.3d at 246.9
Initially, we readily acknowledge that a person’s possible
involvement in prior criminal activity (i.e., "caution data")
can be relevant in establishing reasonable suspicion. See, e.g.,
9
Perhaps recognizing the weakness of its written argument, the Govern-
ment raised for the first time at oral argument two additional factors. First,
the Government argued that Tawanda’s failure to produce a license in
response to Officer Shelby’s query also supports reasonable suspicion
about Powell. This argument borders on the nonsensical. The record is
actually silent as to whether Tawanda heard Officer Shelby’s question
and, more importantly, as to the manner of her response, but even if we
accept that Tawanda’s conduct in this regard is somehow suspicious, we
are at a loss to understand how her conduct has any bearing on whether
Powell was armed and dangerous. Second, the Government contended that
Powell was nervous before the patdown began. However, as we have
noted, the record does not support this factual assertion. Therefore, we will
not consider it. See Foster, 634 F.3d at 246 n.2.
12 UNITED STATES v. POWELL
Holmes, 376 F.3d at 278 (noting that reasonable suspicion
"can be based on the suspect’s commission of violent crimes
in the past — especially when those crimes indicate a high
likelihood that the suspect will be ‘armed and dangerous’
when encountered in the future). However, in most instances,
"[a] prior criminal record is not, standing alone, sufficient to
create reasonable suspicion." Foster, 634 F.3d at 246-47 (cita-
tion and internal quotation marks omitted); see also Sprinkle,
106 F.3d at 617 (noting that the officer knew the suspect had
recently completed a drug sentence, but the officer had "no
information that [he] had returned to crime since his release").
The rationale underlying this rule is clear:
If the law were otherwise, any person with any sort
of criminal record — or even worse, a person with
arrests but no convictions — could be subjected to
[an] investigative stop by a law enforcement officer
at any time without the need for any other justifica-
tion at all. To find reasonable suspicion in this case
could violate a basic precept that law-enforcement
officers not disturb a free person’s liberty solely
because of a criminal record. Under the Fourth
Amendment our society does not allow police offi-
cers to "round up the usual suspects."
United States v. Laughrin, 438 F.3d 1245, 1247 (10th Cir.
2006) (citation and internal quotation marks omitted). The
Tenth Circuit was addressing reasonable suspicion necessary
for a Terry stop, but we believe its point applies with equal
force to a determination of reasonable suspicion for a Terry
frisk.
Officer Shelby’s sole basis for frisking Powell was the cau-
tion data, see J.A. 54, but the Government unequivocally con-
ceded at oral argument that the caution data, by itself, is
insufficient to establish reasonable suspicion in this case. We
believe that this concession is well-made because the caution
data — while indicating that Powell had "priors" for armed
UNITED STATES v. POWELL 13
robbery — does not provide any detail concerning when the
priors occurred or whether they even involved convictions.
The striking lack of specificity of the information in this case
draws no distinction between, for example, a recent armed
robbery conviction and a decades-old wrongful armed rob-
bery charge, and in the officers’ view, such a distinction is
irrelevant. Without more, the caution data certainly does not
justify a reasonable suspicion that Powell was armed and dan-
gerous on the night of the traffic stop.
We likewise acknowledge that false statements can be con-
sidered in establishing reasonable suspicion. Branch, 537 F.3d
at 339 n.1. However, as with criminal background informa-
tion, a false statement, without more, will typically be insuffi-
cient. See, e.g., United States v. Wilson, 953 F.2d 116, 125
(4th Cir. 1991) (holding that "suspicious" falsehood was
insufficient to establish reasonable suspicion "without
stronger articulable grounds of ongoing criminal behavior").
Powell’s purported misrepresentation — the suspiciousness of
which is arguable — does not remotely tend to suggest that
he was armed and dangerous. See id. ("Wilson’s denial that
he had just exited a plane from New York is suspicious, but
of what is unclear. We are neither apprised of what, if any,
significance such a falsehood normally has in the illicit drug
trade, nor what inferences, if any, Officer Crooke drew from
Wilson’s denial of having arrived on the New York shuttle.").10
10
It is actually questionable whether Powell can fairly be said to have
deliberately misrepresented his license status at all. This is not a case
where a suspect presented a false identification or a demonstrably untrue
version of events. Even accepting, as we do, that Officer Shelby asked for
a "valid" license, there is nothing in the record to establish that Powell
heard the request for a "valid" license or understood its significance, or
that he was aware that his license was in fact suspended. In any event, it
strains credulity to believe that by voluntarily producing his license, Pow-
ell was attempting to mislead the officers. Moreover, we cannot help but
note that under the Government’s view, Powell’s voluntary cooperation
actually places him in a worse position than if he had simply refused to
cooperate altogether. See, e.g., Florida v. Bostick, 501 U.S. 429, 437
(1991) ("We have consistently held that a refusal to cooperate, without
more, does not furnish the minimal level of objective justification needed
for a detention or seizure.").
14 UNITED STATES v. POWELL
Combining these factors and viewing them objectively in
light of the other circumstances of this case does not aid the
Government’s position. We have already detailed the overall
context of the traffic stop, which strongly militates against a
finding of reasonable suspicion that Powell was armed and
dangerous. Given the glaring weakness of the factors articu-
lated by the Government, we are convinced that a reasonably
prudent officer in these circumstances would not be warranted
in the suspicion that Powell was armed and dangerous on the
night of the traffic stop. Accordingly, the patdown was not
permissible under the Fourth Amendment, and the district
court should have suppressed the evidence that was seized
during the traffic stop.
IV
Based on the foregoing, we vacate the judgment of the dis-
trict court.
VACATED
KING, Circuit Judge, dissenting:
I write in dissent because there was an ample basis — both
particularized and objectively reasonable — for the suspicion
that Powell, when he was patted down by Officer Shelby, may
have been armed and dangerous. I therefore disagree with my
distinguished colleagues and emphasize three essential points.
First, there is a material distinction between an "investigatory
stop" and a "patdown" (or "frisk") for weapons. Second, the
"caution data" resulting from the computer check on Powell’s
invalid driver’s license (revealing that Powell had been previ-
ously arrested for armed robbery) was alone sufficient to jus-
tify Officer Shelby’s actions. And, third, viewed in their
totality, the relevant circumstances more than justified Shel-
by’s patdown of Powell for weapons.
UNITED STATES v. POWELL 15
A.
Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), the
reasonable-suspicion standard applies to both an investigatory
stop and a patdown for weapons. On the one hand, to justify
an investigatory stop, there must be reasonable suspicion "that
criminal activity may be afoot." Terry, 392 U.S. at 30. On the
other hand, to support a patdown for weapons, there must be
reasonable suspicion that a suspect "may be armed and pres-
ently dangerous." Id. These variances in the reasonable-
suspicion standard owe to the fact that the predicate circum-
stances and ultimate goals of the two types of intrusions are
different. An investigatory stop is for the purpose of detecting
possible criminal activity, while a patdown for weapons is
conducted solely for the safety of the police officers and oth-
ers. Indeed, the consequences of either of these situations pan-
ning out into fact are distinct and, particularly in the patdown
situation, fraught with danger. As the Supreme Court has
explained, "[t]he purpose of [a patdown for weapons] is not
to discover evidence of crime, but to allow the officer to pur-
sue his investigation without fear of violence." Adams v. Wil-
liams, 407 U.S. 143, 146 (1972); see also Terry, 392 U.S. at
29 ("The sole justification of the search in the present situa-
tion is the protection of the police officer and others nearby
. . . .").
In Florida v. J.L., 529 U.S. 266 (2000), the Supreme Court
laid out the distinction between a Terry investigatory stop and
a Terry patdown for weapons. After ruling that an investiga-
tory stop may not be conducted solely on the basis of an anon-
ymous tip that a person is armed, the Court explained that
"the requirement that an anonymous tip bear standard indicia
of reliability in order to justify a stop in no way diminishes
a police officer’s prerogative, in accord with Terry, to conduct
a protective search of a person who has already been legiti-
mately stopped." J.L., 529 U.S. at 274. Recognizing the dif-
ference between a Terry stop and a Terry patdown for
weapons, the Court thus stressed the importance of the offi-
16 UNITED STATES v. POWELL
cer’s right to act in "‘protection of himself and others’" when
he is already lawfully on the scene and in the presence of a
suspect. Id. at 270 (quoting Terry, 392 U.S. at 30); see also
Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (conclud-
ing that there was "little question" that officer was justified in
conducting patdown for weapons after initiating lawful traffic
stop, ordering suspect to exit vehicle, and noticing bulge in
suspect’s jacket).
When a police officer’s life is on the line, common sense
tells us that he should sooner be reasonable in his suspicion
that a suspect may be armed and dangerous than in suspecting
that a passerby is up to no good. The risk of dismissing a sus-
picion that a suspect may be armed is inherently perilous to
arresting officers. As a result, the officers in this case were
entitled to take reasonable steps to protect themselves and
others after they received confirmation that Powell may be
armed, even if that evidence might not have been sufficient
for an initial Terry stop.1
B.
1.
Although the requirement of reasonable suspicion for an
investigatory stop or a patdown for weapons calls for more
1
Each of the decisions relied on by the majority are materially distin-
guishable from this case, in that none focused on the legality of a patdown
alone. We ruled in Foster and Sprinkle that officers’ knowledge of the sus-
pects’ prior criminal involvement in drug activity failed to meet the
reasonable-suspicion standard necessary for an investigatory stop. See
United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011); United States
v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997). Massenburg concerned
whether reasonable suspicion existed to justify an investigatory stop and
frisk of a pedestrian, and Digiovanni involved an investigation into drug
trafficking activity that exceeded the scope of the original traffic stop. See
United States v. Massenburg, 654 F.3d 480, 485-88 (4th Cir. 2011);
United States v. Digiovanni, 650 F.3d 498, 507-10 (4th Cir. 2011).
UNITED STATES v. POWELL 17
than a mere hunch, reasonable suspicion is a lower standard
than probable cause, and considerably lower than a prepon-
derance. See United States v. Massenburg, 654 F.3d 480, 485
(4th Cir. 2011). In this case, the "caution data" regarding
Powell, standing alone, satisfied that standard.
It is of little moment that, prior to the radio broadcast
regarding the caution data on Powell, this traffic stop had
been a cooperative one. See ante at 7. Officer Shelby con-
firmed that he asked Powell to exit the vehicle and that he
conducted the patdown "for officer safety," after being
advised of the Powell caution data involving armed robbery.
J.A. 48.2 With evidence that Powell may have been danger-
ously armed in the past, Officer Shelby made a "rational infer-
ence[ ]" that Powell may have been armed and presently
dangerous, and Shelby acted — as he was entitled to do —
to protect himself and others. See United States v. Branch,
537 F.3d 328, 336 (4th Cir. 2008). In this context, it makes
sense, as Judge Wilkinson has well explained, for the courts
to "give due weight to common sense judgments reached by
officers in light of their experience and training" and "credit
the practical experience of officers who observe on a daily
basis what transpires on the street." United States v. Perkins,
363 F.3d 317, 321 (4th Cir. 2004) (internal quotation marks
omitted) (citing Illinois v. Wardlow, 528 U.S. 119, 125
(2000)).
Furthermore, the government attorney’s statement at oral
argument that the "caution data" alone was insufficient to
establish reasonable suspicion for the patdown of Powell con-
stitutes a thin reed for the majority — because the question
we face is not factual, but legal. See United States v.
Rodriquez, 433 F.3d 411, 415 n.6 (4th Cir. 2006) (recognizing
that court not bound by party’s concession on legal issue). I
simply disagree with the government on this point, and
2
Citations herein to "J.A. ___" refer to the contents of the Joint Appen-
dix filed by the parties in this appeal.
18 UNITED STATES v. POWELL
instead find myself in agreement with the district court.3 Put
succinctly, I am loath to conclude that a police officer who
has lawfully stopped a vehicle is not entitled to subject a pas-
senger to a protective patdown for weapons after learning
that, in the past, that passenger had been charged with an
armed robbery.
2.
Notwithstanding my view of the sufficiency of the "caution
data" concerning Powell, we are obliged to resolve the rea-
sonable suspicion issue by considering the totality of the rele-
vant circumstances. See United States v. Arvizu, 534 U.S. 266,
273 (2002). In so doing, the facts underlying Officer Shelby’s
patdown of Powell for weapons persuade me that the district
court’s decision to deny suppression was entirely proper.
Indeed, this case is informed by the Supreme Court’s decision
in Pennsylvania v. Mimms, where police officers stopped a
vehicle with an expired license plate and asked the driver to
step outside the car. See 434 U.S. 106, 107 (1977). When one
of the officers noticed a "large bulge" under the driver’s
jacket, he patted the driver down in fear that the bulge may
be a weapon, which it was. Id. The Court held that the pat-
down was justified. Id. at 112.
The facts of this case are even more compelling. Powell
had previously been arrested for armed robbery, and the
3
In ruling on the reasonable suspicion issue following an evidentiary
hearing, the able and experienced district judge explained that
there’s certainly no issue in this case that the stop was legitimate,
that requesting the individuals to get out of the vehicle was legiti-
mate. At that point, knowing that the defendant had involvement
in a prior charge, if not conviction of armed robbery, a pat-down
was appropriate. The officers had no obligation to verify whether
in fact it was a conviction that stuck. So the pat-down was appro-
priate.
J.A. 89.
UNITED STATES v. POWELL 19
police radio broadcast of the computer data specifically
advised all three officers present of the Powell "caution data."
Additionally, Powell indicated that he had a valid license but
presented the officers with a suspended license, and he was a
passenger in a vehicle where neither the driver nor the other
passenger possessed a valid license. As a result, the officers
were entitled — using their common sense — to believe that
Powell was being untruthful when he purported to have a
valid license, and that he engaged in "less than law abiding
conduct." See United States v. Pack, 612 F.3d 341, 361 (5th
Cir. 2010) (observing that "licenses are usually suspended for
less than law abiding conduct"). The foregoing circumstances,
taken together, provided an objectively reasonable basis for
Officer Shelby’s suspicion that Powell may have been armed
and dangerous.4 Consequently, there was ample justification
for Officer Shelby’s patdown of Powell for weapons, thus
ensuring the safety of the officers and the vehicle occupants.
I respectfully dissent.
4
It is unnecessary to consider against Powell the evidence that, after the
patdown decision was made, he sought to evade Shelby’s patdown for
weapons by dropping to his knees and then seeking to flee. Cf. United
States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997) (concluding that sus-
pect’s intervening illegal acts during impermissible patdown provided
independent grounds for arrest). Neither, of course, have I considered the
fact that a 9mm Ruger handgun, as well as drugs, were then seized.