UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 01-5013

SALEEM PORTER,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CR-01-272)

Argued: September 26, 2002

Decided: October 29, 2002

Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.

Reversed and remanded by unpublished per curiam opinion. 

COUNSEL

ARGUED: Vincent L. Gambale, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. Murray Joseph Janus, BREMNER, JANUS,

COOK & MARCUS, Richmond, Virginia, for Appellee. ON BRIEF:

Paul J. McNulty, United States Attorney, Alessandra DeBlasio, Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellant. Taylor B. Stone,

BREMNER, JANUS, COOK & MARCUS, Richmond, Virginia;
David S. Rudolf, RUDOLF, MAHER, WIDENHOUSE & FIALKO,

Chapel Hill, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

The Government appeals the district court’s order granting Saleem

Porter’s motion to suppress crack and powder cocaine found in his

car. We reverse and remand for further proceedings. 

I.

On August 22, 2001, three members of Virginia’s police drug interdiction unit, Troopers Lee Elliott, David Batkins, and Debbie King,

were patrolling Interstate 95 in Hanover County, Virginia in

unmarked cars. At approximately 1:45 p.m., Trooper Batkins noticed

two white sport utility vehicles, apparently traveling together, one

with Georgia plates, trying to speed through traffic. He radioed ahead

to advise Trooper Elliott of the vehicles, but Trooper Batkins did not

indicate any suspicions that the cars were carrying drugs, nor did he

attempt to stop the vehicles. 

Soon after receiving this call, Trooper Elliott observed a white van

with Georgia license plates passing him on the left. However, Trooper

Elliott admitted that he never saw another car traveling with this van,

or a car that matched the description radioed by Trooper Batkins.

Nevertheless, Trooper Elliott followed the white van, which, although

moving in the normal flow of traffic, was traveling at between 70 and

79 miles per hour in a 65-mile-per-hour speed zone, and switching

lanes without properly using a turn signal. 

Having observed these traffic infractions, Trooper Elliott turned on

his vehicle’s lights and an internal video camera, and pulled the van

2 UNITED STATES v. PORTER
to the side of the road. A videotape recorded the entire encounter and

the events set forth below. 

Trooper Elliott approached the van and asked the driver, Saleem

Porter, for his license, and told Porter why he had been pulled over.

Porter explained that he had not driven in a while because of an arm

injury he suffered through his construction job. Trooper Elliott asked

Porter to accompany him to the trooper’s car so that the he could run

a check on Porter’s license. Porter agreed, getting out of his vehicle

without apparent difficulty, mentioning that his arm felt "better right

now." 

Noting Porter’s baggy shirt, Trooper Elliott asked Porter if he

could feel Porter’s pockets. Porter agreed and Trooper Elliott told him

"[t]his is all just voluntary stuff here." Having checked his pockets,

Trooper Elliott did not otherwise pat Porter down. Porter then got into

Trooper Elliott’s vehicle with Elliott. 

Trooper Elliott testified that during the next seven minutes he completed paperwork while questioning Porter about various matters,

including Porter’s job and his injury, his speeding, his current trip, his

address, and the vehicle’s registration. The trooper then radioed in to

run a check on Porter’s license. Within another minute and a half, the

license check came back clear and Trooper Elliott gave Porter his

papers, a warning, but no ticket, and told him to be more careful. 

After wishing Porter a "good trip," Trooper Elliott asked Porter if

he wanted to be let out of the police car. Porter said that he did.

Trooper Elliott reached across and opened the door for Porter, and as

Porter was getting out of the trooper’s car asked "before you go . . .

you don’t have any firearms or weapons . . . or money or drugs or

anything like that in the car?" Porter replied that he did not: "I make

over a half a million dollars a year, and I wouldn’t want to jeopardize

my life and career." Elliott then explained that he was part of a "special group of troopers" whose job involved drug and weapon interdiction. He told Porter that he often pulled people over with the intention

of obtaining permission to search their cars. 

At this point, Porter volunteered: "Officer, you can look through

the car. I have no problems with looking through the car." Porter also

UNITED STATES v. PORTER 3
mentioned that he was "familiar with the process" because his father

was an attorney in Atlanta, and stated again that "you can look

through the car." Trooper Elliott told Porter that it would just be a

minor inconvenience, that the matter was "strictly voluntary," and that

Porter should sit in the police vehicle while he took a "quick look."

After radioing the other officers, Trooper Elliott informed Porter

that backup officers might arrive. He did not tell Porter that the other

officers would be participating in the search, nor did he request Porter’s approval for their participation. However, Trooper Elliott did tell

Porter several ways to get the troopers’ attention if he wanted to during the search, and Porter, in turn, told the trooper not to put up the

van’s windows with the key in the ignition because the car would

lock. 

Trooper Elliott began to search Porter’s van at 2:04 p.m.. Troopers

Batkins and King arrived with the drug dog soon thereafter. During

the next three minutes, the troopers unzipped bags, opened the rear

hatch, looked underneath carpeting, and underneath the van itself. 

Trooper Elliott later testified that several factors uncovered during

this search aroused his suspicions: the van’s odometer was set to the

trip function and showed more than 2,800 miles; the total odometer

read over 215,000 miles; fast food wrappers littered the van; and the

van’s interior was in disarray. At approximately 2:08 p.m., Trooper

Batkins opened the van’s rear hatch, and about 15 seconds later,

Trooper Elliott noticed a gap of between 8 and 12 inches in the bottom of the van. He suggested looking under the van but Trooper King

said that she should run the drug dog first. 

At approximately 2:12 p.m. (eight minutes after the troopers began

their search of the van), the dog alerted to the rear of the car. Immediately after the dog alerted, Trooper Elliott went back to his car to

speak to Porter, who said, "Officer, I would just like to say this:

. . . I just really don’t like this, man. I mean, I know I have been cooperative . . . but . . . was this really necessary Officer?" Trooper Elliott

told Porter he had been "great" and that the officers were just exploring what they had found. Porter said "[a]ll right," but the troopers

noted that he had become very nervous. 

4 UNITED STATES v. PORTER
The troopers continued searching the car, and at approximately

2:20 p.m., found a secret compartment. Trooper Elliott then handcuffed Porter, telling him he was not under arrest, but they were

detaining him because of suspicions about his vehicle. The officers

spent about an hour trying to gain access to the secret compartment.

At one point, after reading him his Miranda rights, Trooper Elliott

asked Porter whether he would cooperate, but Porter elected not to

discuss the situation. The troopers eventually found approximately

three quarters of a kilogram of crack cocaine and one kilogram of

powder cocaine inside the secret compartment in the car; they then

arrested Porter. 

II.

After considering the evidence, including Trooper Elliott’s testimony and the videotape, the district court granted Porter’s motion to

suppress the crack and powder cocaine found in his van. The court

found that because Trooper Elliott observed a legitimate traffic violation, the resulting traffic stop of Porter was justified. The court held,

however, that the totality of circumstances in the instant case demonstrated that Porter had not consented to the search, and that even if

he had consented, the search exceeded the scope of that consent. 

The Government maintains that the district court erred both in its

assessment of the voluntariness of the search and the scope of Porter’s

consent. An appellate court reviews a district court’s factual findings

for clear error and its legal conclusions de novo. United States v.

Rusher, 966 F.2d 868, 873 (4th Cir. 1992). In this case, notwithstanding Porter’s understandable attempt to gain the advantage of a deferential standard of review by casting the district court’s conclusions as

fact finding, the critical facts, all of which the videotape memorialized, are undisputed. Therefore, the district court’s ultimate holdings

as to the voluntariness and scope of the consent are, as the district

court itself properly recognized, "conclusions of law," subject to our

de novo review. With this understanding, we consider both of these

holdings in turn. 

A.

Although the Fourth Amendment clearly prohibits unreasonable

searches and seizures, and searches without a warrant are per se

UNITED STATES v. PORTER 5
unreasonable unless a valid exception applies, it is equally clear that

a search to which a suspect has consented is an exception to this

requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

The Government, of course, has the burden of proving that the consent was freely and voluntarily given. Id. at 222. 

Determination of the voluntariness of consent involves an objective

analysis of the totality of circumstances surrounding the consent. See,

e.g., id. at 227; United States v. Lattimore, 87 F.3d 647, 650 (4th Cir.

1996) (en banc). A court must decide, given the totality of the circumstances, whether "a reasonable person in the suspect’s position would

have felt free to decline the officers’ requests or otherwise terminate

the encounter." United States v. Sullivan, 138 F.3d 126, 132 (4th Cir.

1998) (quoting Florida v. Bostick, 501 U.S. 429, 438 (1991)). In

reviewing the totality of the circumstances, we consider the characteristics of the suspect, such as age, maturity, education, intelligence,

and experience; and the conditions under which the consent was

given, such as the number of officers present, and the duration, location, and time of the encounter. Lattimore, 87 F.3d at 650. 

As one of its first conclusions of law, the district court held, that

"the continued detention of . . . [Porter after the completion of the

license check and issuance of a warning] was illegal" and Trooper

Elliott was therefore not entitled to request Porter’s consent for a

search. This conclusion does not accord with well-settled case law.

Rather, the Supreme Court has clearly held that the actual motivations

of individual officers in stopping vehicles is irrelevant. Whren v.

United States, 517 U.S. 806, 813 (1996)(noting that precedent "forclose[s] any argument that the constitutional reasonableness of traffic

stops depends on the actual motivations of the individual officers

involved."). Furthermore, we have repeatedly held that once a traffic

stop has concluded, a continued conversation between an officer and

suspect can be a consensual encounter if a reasonable person would

have felt free to leave. See, e.g., United States v. Weaver, 282 F.3d

302, 309 (4th Cir. 2002) ("Circumstances where the citizen would

feel free to go, but stays and has a dialogue with the officer, are considered consensual, and therefore do not implicate the Fourth Amendment."). 

Indeed, we have held consent voluntary on facts very similar to

those in the case at hand. In Lattimore, as here, a trooper stopped a

6 UNITED STATES v. PORTER
suspect and escorted him to his car because of a traffic violation. 87

F.3d at 649. Moreover, as here, after checking the suspect’s license

and returning it to him, while the suspect was exiting the car, the officer asked if he could search the vehicle. Id. Finally, again as here, the

suspect orally consented and the resulting search turned up illegal narcotics. Id. at 649-50. We found the consent voluntary even though the

suspect, Lattimore, later refused to sign a written consent form,

because the totality of the circumstances indicated that a reasonable

person would have felt free to decline the request for consent. Id. at

651. Those circumstances included: the suspect’s relative sophistication evidenced by his education, the casualness of conversation

engaged in by the officer and the suspect, the time and location of the

incident — on a well-traveled highway in the middle of the afternoon,

the fact that only one officer was present when the suspect gave his

consent, and the fact that the stop was not of inordinate duration. Id.

Similarly, in this case, Porter was relatively sophisticated, volunteering that he knew the law because his father was an attorney; Porter and Trooper Elliott engaged in casual conversation during the

traffic stop; the incident occurred on a well-traveled highway in the

middle of the day; only one officer was present when Porter gave his

consent; the stop was not long; and the conversation following the

conclusion of the traffic stop lasted only about one minute. See also

Sullivan 138 F.3d at 133 (holding a search 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). 

The district court distinguished Lattimore from the present case

because Trooper Elliott said "before you go" to Porter as Porter was

getting out of the car, thus assertedly requiring Porter to answer the

questions before resuming his trip. This conclusion flies in the face

of Ohio v. Rabinette, 519 U.S. 33, 36 (1996), in which the Supreme

Court held that the consent obtained from an individual after an officer asked "before you get gone: Are you carrying any illegal contraband in your car?" was valid even though the officer did not tell the

individual he was free to go. As the Government points out, there is

little difference between "before you get gone" and "before you go."

Moreover, the Supreme Court has unequivocally stated that no one

UNITED STATES v. PORTER 7
fact should be dispositive when determining whether a reasonable

person would find conditions coercive. Id. at 39. 

The district court also suggested that the case at hand differed from

Lattimore because Trooper Elliott knew Porter needed help getting

out of the car, and thus Porter was not free to leave before answering

the request to consent to a search. However, Trooper Elliott had

already opened the door for Porter and Porter had a foot out of the

car before the trooper ever made his "before you go" request. At that

time, Porter no longer needed Elliott’s help to get out of the car. 

In sum, our precedent requires the conclusion that Porter voluntarily gave his consent to the search of his van.

B.

As to the scope of the search, the Supreme Court has again established that the appropriate test is an objective one — what would a

reasonable person have understood the exchange between the officer

and the individual to encompass. Florida v. Jimeno, 500 U.S. 248,

251 (1991). Individuals may limit the scope of their consent, but

when, as here, a suspect does not expressly limit the scope of the

search, the test remains what a reasonable person would believe to be

included within the scope of the consent. Id. at 252. 

In Jimeno, the Court concluded that once Jimeno gave consent to

search his car without limitation, it was reasonable to search in a

paper bag on the floor of the car because the officer informed Jimeno

that he was looking for drugs, and a reasonable person would expect

to find drugs inside a container. Id. at 251. Similarly, Trooper Elliott

told Porter that he was a member of a narcotics interdiction unit, so

it was reasonable for Porter to assume that the trooper would be looking for drugs in hidden areas in his van, not just those in plain view,

as Porter argues. The district court recognized that had the conversation between Trooper Elliott and Porter ended with the trooper telling

Porter he was looking for drugs, Porter would have no colorable contention that the search exceeded the scope of his consent. However,

because Trooper Elliott told Porter that he just wanted to take a

"quick look through" the van, never used the word "search," and told

Porter that he would be out of there quickly, the court held that Porter

8 UNITED STATES v. PORTER
limited the search to a limited look through of his van, and never gave

any consent to open any closed or locked part of the van. 

There are several problems with this conclusion. First, the tape

reveals that Porter specifically told Trooper Elliott not to put the windows up when he was inside Porter’s van because the van would lock,

indicating that Porter himself recognized that the troopers would need

to open various parts of the van in the course of their search. Jimeno,

500 U.S. at 251. 

Moreover, Porter volunteered his consent several times even after

Trooper Elliott had specifically told Porter that he was part of a "special group of troopers" whose "job is to stop the flow of drugs and

weapons . . . through the Commonwealth of Virginia." Although Porter could have withdrawn his consent at anytime, he failed to do so.

In fact, Porter reaffirmed his consent even after the officers had

removed the carpeting in the van, and the drug dog alerted to his rear

hatch; at that time, when Trooper Elliott told Porter the officers were

just going to see what they had found, Porter replied "[a]ll right." For

all of these reasons, we can only conclude that a reasonable person

would have believed that the troopers’ search of Porter’s van was well

within the scope of his consent. 

III.

For the foregoing reasons, the district court’s order granting Porter’s suppression motion is reversed and the case is remanded for further proceedings. 

REVERSED AND REMANDED

UNITED STATES v. PORTER 9