United States of America v.  Neville Andrew Meikle

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4357 
NEVILLE ANDREW MEIKLE,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-03-990)
Argued: February 4, 2005
Decided: May 13, 2005
Before WIDENER and SHEDD, Circuit Judges, and
James C. CACHERIS, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge Shedd and Judge Cacheris concurred.
COUNSEL
ARGUED: John Robert Haley, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
South Carolina, for Appellant. Carlton R. Bourne, Jr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF:

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J. Strom Thurmond, Jr., United States Attorney, Charleston, South
Carolina, for Appellee.
OPINION
WIDENER, Circuit Judge:
Neville Meikle appeals his conviction in which the only claimed
error is the district court’s denial of his motion to suppress three kilo-
grams of heroin that were seized following his traffic stop. Meikle
argues that the district court erred in concluding that his traffic stop
had become a consensual encounter by the time he consented to the
search of his vehicle. We affirm.
I.
On the afternoon of September 24, 2003, Lance Corporal Brown
observed Neville Meikle driving north on Interstate 95, crossing the
white fog line and drifting onto the shoulder of the highway several
times. Corporal Brown initiated a traffic stop of Meikle’s vehicle for
the weaving violation. When Brown approached Meikle’s vehicle and
asked for a copy of Meikle’s driver’s license and registration, Corpo-
ral Brown observed that Meikle was extremely nervous; Meikle’s arm
was shaking and he stuttered in his speech.
In response to a question about Meikle’s nervousness, Meikle told
Corporal Brown that he was driving from Miami to Baltimore, Mary-
land for a job interview with Thrift Trucking. Brown then asked Mei-
kle to step out of the vehicle while he continued to question Meikle
about the job interview. Corporal Brown asked Meikle if Thrift
Trucking had offices in Florida and Meikle replied "yes, not really."
Meikle went on to state that if you lived north of Interstate 4 you had
to interview in Baltimore. Brown was somewhat familiar with Florida
highways and found this to be inconsistent with the fact that Meikle
said he lived in Miami, south of Interstate 4.
Corporal Brown then radioed the dispatcher to inquire as to the sta-
tus of Meikle’s driver’s license. While Brown awaited the dispatch-
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er’s response, he again questioned Meikle about his job and interview
and whether there were any illegal items in his vehicle. Corporal
Brown noted that Meikle’s overall nervousness was increasing and
that Meikle laughed nervously when he said he had no illegal items.
The officer found Meikle’s nervousness to be extreme, especially
considering that midway through the encounter Corporal Brown had
told Meikle that he was only giving Meikle a warning for crossing the
fog line.
After Corporal Brown completed the warning citation and Brown’s
dispatch advised Brown that Meikle’s driver’s license was clear, Cor-
poral Brown returned Meikle’s license and registration and shook his
hand. At this point, 11 minutes had passed since the original stop and
Corporal Brown testified that Meikle was free to leave.
As Meikle turned and walked back towards his vehicle, Corporal
Brown asked Meikle if he could talk to him again and Meikle replied
"yes". Corporal Brown then asked Meikle if there were any illegal
drugs in the vehicle. Meikle nervously stuttered "no." Corporal
Brown next asked if he could search Meikle’s vehicle, and Meikle
consented. Corporal Brown called for another officer and with the
assistance of a drug dog, they searched Meikle’s vehicle and found
several packages containing approximately three kilograms of heroin.
On October 15, 2003, Meikle was indicted in the District Court for
the District of South Carolina, Charleston Division, for possession
with intent to distribute one kilogram or more of heroin in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). The defendant filed a
motion to suppress the evidence seized from his vehicle and a hearing
was held. In a January 7, 2004 order, the district court denied Mei-
kle’s motion and Meikle entered a conditional plea of guilty, reserv-
ing his right to challenge the district court’s ruling. The defendant was
sentenced to 240 months’ imprisonment.
II.
The defendant argues on appeal that the traffic stop had not
become a consensual encounter at the time that he consented to the
search of his vehicle because the traffic stop violated Terry v. Ohio,
392 U.S. 1 (1968) by going beyond the limits of proper law enforce-
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ment conduct in a routine traffic stop. We review under the clearly
erroneous standard the factual finding in the district court’s denial of
the defendant’s motion to suppress but review the legal determina-
tions de novo. United States v. Rusher, 966 F.2d 868, 873 (4th Cir.
1992).
The Supreme Court’s analysis in Terry governs routine traffic
stops, such as the one at issue here. Berkemer v. McCarty, 468 U.S.
420, 439 (1984). To determine the limits of police conduct, Terry
employs a dual inquiry: "whether the officer’s action was justified at
its inception, and whether it was reasonably related in scope to the
circumstances which justified the interference in the first place."
Terry, 392 U.S. at 20.
However, if the traffic stop becomes a consensual encounter, the
Terry inquiry would not be employed, and the stop would instead be
governed by the Supreme Court’s analysis in Florida v. Bostick, 501
U.S. 429 (1991), because a consensual encounter does not "trigger
Fourth Amendment scrutiny." Bostick, 501 U.S. at 434 (citing Terry,
392 U.S. at 19). Under Bostick, the question is "whether the police
conduct would have communicated to a reasonable person that the
person was not free to decline the officers’ requests or otherwise ter-
minate the encounter." Bostick, 501 U.S. at 439; United States v.
Rusher, 966 F.2d 868, 877 (4th Cir. 1992). This inquiry involves an
objective analysis of the totality of circumstances. United States v.
Weaver, 282 F.3d 302, 309-10 (4th Cir. 2002). If a reasonable person
would have felt free to decline the officer’s request or otherwise ter-
minate the encounter, and the suspect freely gives consent to search
at this point, there is no need to reach the issue of whether the initial
stop was permissible under Terry. Rusher, 966 F.2d at 877.
Employing the Bostick inquiry, the district court determined that
Meikle’s traffic stop had become a consensual encounter when Mei-
kle freely granted consent for Corporal Brown to search his vehicle.
Thus, the court concluded that it need not address whether the initial
stop exceeded the permissible scope of a Terry stop. United States v.
Meikle, C.A. No. 2:03-990 (D.S.C. Jan. 7, 2004) (order denying
motion to suppress evidence)(J.A. 128). We agree with the district
court’s reasoning and disposition of this case. We are of opinion that
this encounter was consensual because under Bostick, Meikle, as a
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reasonable person, would have felt free to decline Corporal Brown’s
requests to continue the encounter.
In the instant case, a total of eleven minutes passed between the
initial stop and when Corporal Brown finished issuing the warning
citation, returned Meikle’s license and registration and shook Mei-
kle’s hand. Corporal Brown testified that at that point Meikle was free
to go, and in fact, Meikle did turn and walk away. Several seconds
passed before Corporal Brown said "Mr. Meikle, can I speak with
you." Meikle agreed to speak with Corporal Brown further, and dur-
ing this conversation, Meikle also consented to the search of his vehi-
cle.
Since Bostick, we have held that "[c]ircumstances where the citizen
would feel free to go, but stays and has a dialogue with the officer,
are considered consensual." United States v. Weaver, 282 F.3d 302,
309 (4th Cir. 2002). Also, "[w]hen a stop is over and its purpose
served . . . mere questioning by officers without some indicated
restraint, does not amount [to] . . . a seizure under the Fourth Amend-
ment." United States v. Sullivan, 138 F.3d 126, 131 (4th Cir.
1998)(holding that a search was consensual even though an officer
repeatedly asked questions about the presence of illegal items in the
car, after returning a suspect’s license at the conclusion of a traffic
stop). Following the reasoning of these cases, in which we have
repeatedly found to be consensual encounters similar to the one at
hand, Meikle’s traffic stop had become consensual by the time he
consented to the search of his vehicle. The officer had returned Mei-
kle’s license and registration, had shaken Meikle’s hand, and Meikle
began walking back to his car. It was clear that Meikle was free to
go. A reasonable person would have felt free to decline Corporal
Brown’s request to speak to Meikle further. Therefore, a consensual
encounter commenced the moment the officer asked if he could speak
to Meikle again and Meikle agreed.
The traffic stop at issue is also remarkably similar to that in United
States v. Rusher, 966 F.2d 868 (4th Cir. 1992). In Rusher, the defen-
dant’s vehicle was stopped for a seatbelt violation and improper
license plate. The officer asked the defendant about his vehicle and
trip before issuing a warning ticket and returning the defendant’s driv-
er’s license. The officer then told the defendant that he was "free to
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go." Rusher, 966 F.2d at 872. As in the case at hand, only after the
driver’s papers had been returned and it was made clear that the driver
could leave, did the officer ask if he could search the vehicle. And,
as in the case at hand, the driver consented and illegal items were
found in the vehicle. Rusher, 966 F.2d at 872-73.
In Rusher, this court held that it did not need to determine whether
the stop exceeded the proper scope of a Terry stop because the
encounter in which the defendant consented to the search of his vehi-
cle was a consensual encounter. Rusher, 966 F.2d at 877. The court
said that the encounter became consensual once the officer told the
defendant he was free to go, and this before asking permission to
search the vehicle. Thus, the defendant "did not need to answer any
of the trooper’s questions." Rusher, 966 F.2d at 877.
Miekle’s situation is indistinguishable from that in Rusher. As in
Rusher, and pursuant to the inquiry laid out in Bostick, the encounter
between the defendant and the officer was purely consensual. Meikle
understood that he was free to leave, which is made obvious by the
fact that he shook hands with the officer and did in fact begin to
leave. The officer had also returned all of Meikle’s papers, which also
signified that Meikle could go. The holding of the district court that
the search was consensual is thus affirmed.
We add one item to our discussion in this opinion. The district
court heard the testimony of Corporal Brown ore tenus in open court.
The judge saw the witness and heard him testify. That adds consider-
able force to the fact finding of the district court in this case.
The judgment of the district court is accordingly
AFFIRMED.
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