NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________

No. 19-2986

UNITED STATES OF AMERICA

v.

TERRENCE BYRD,

Appellant _____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No.: 1:14-cr-00321-001) District Court Judge: Honorable Chief Judge Christopher C. Conner _____________________________________

Argued April 22, 2020.

(Filed: May 8, 2020)

Before: HARDIMAN, RENDELL and FISHER, Circuit Judges.

Quin M. Sorenson (Argued) Office of the Federal Public Defender 100 Chestnut Street Suite 306 Harrisburg, PA 17101 Counsel for Appellant William A. Behe Stephen R. Cerutti, II (Argued) Office of United States Attorney Middle District of Pennsylvania 228 Walnut Street, P.O. Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108 Counsel for Appellee

_________

O P I N I O N* _________

RENDELL, Circuit Judge:

Following its decision in Byrd v. United States, the Supreme Court remanded this

case for us to consider whether probable cause supported the automobile search at issue

in the underlying motion to suppress.

(2018). We initially

remanded to the District Court to allow for consideration of the motion on a more

developed factual record. United States v. Byrd,

, 592 (3d Cir. 2018).

The District Court denied the motion to suppress, finding in part that probable cause

supported the search. United States v. Byrd,

, 413–16 (M.D. Pa.

2019). The Court declined to reconsider its decision, United States v. Byrd, No. 1:14-

CR-321,

(M.D. Pa. Aug. 2, 2019), and Terrence Byrd now appeals the

denial of the motion to suppress. Because the District Court correctly determined that

probable cause supported the search, we will affirm.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 I. Background 1

On September 17, 2014, Trooper David Long pulled Byrd over in a rental vehicle

for failure to properly move into the right lane after passing a truck. Trooper Long

approached Byrd, who provided a rental agreement in another person’s name as well as a

temporary non-photographic New York driver’s license. Trooper Long testified that

Byrd exhibited “extreme nervousness” and that, when trying to locate his documentation,

Byrd reached toward the center console two or three times but avoided opening it. App.

69–70.

Trooper Long was subsequently joined by Trooper Martin, and the two waited for

Byrd’s license and background check information. The information from Byrd’s

temporary license returned the alias James Carter. The officers also learned about a

lengthy criminal history, including assault and drug offenses, and that Byrd had an

outstanding warrant in New Jersey, but one designated “in-state pick-up only.” App.

393, Def. Ex. 11 at 10:27.

After a few minutes, Trooper Martin went to speak with Byrd. When he returned

to the car, he told Trooper Long that Byrd had been searching for his driver’s license

number and was very nervous and shaking. When Martin spoke with Byrd again

moments later, Byrd provided a driver’s license number with the numbers in the wrong

order. The officers then placed a call to get more information about Byrd’s identity.

1 Because we write for the parties, who are familiar with the facts, we only include what is necessary to explain our decision. 3 The officers agreed that, given the discrepancies in the information about Byrd’s

identity, as well as his nervousness and shaking, “something [was] wrong.”

at 27:02–

27:18, 27:25–27:58, 28:06–28:16. Trooper Martin speculated that Byrd might be

“wanted” and stated that he believed there was “marijuana, at minimum, in the center

console.” Id. at 21:16-21:19.

After confirming Byrd’s identity, the officers got out of their car, approached

Byrd, and asked him to exit the vehicle. Trooper Long wrote out a warning, which he

gave to Byrd. The officers continued talking with Byrd and asked whether he had

anything illegal in the car or had smoked marijuana. Byrd said no. After the officers

asked specifically about the center console, Byrd indicated that he thought he had a

“blunt” and offered to retrieve it.

The officers told Byrd they would get the blunt and search the car. Trooper Long

informed Byrd, “you gave permission, and actually we have probable cause because you

told us what’s in there, but however we don’t need it because you’re not on [the rental

agreement]; you have no expectation of privacy.” Id. at 44:03-16. 2 While Trooper Long

searched the passenger area, Byrd informed Trooper Martin that he had snorted cocaine

2 This comment appears to be a reference to our then-governing precedent in United States v. Kennedy. In Kennedy, we held that a driver of a rental vehicle who was not listed on the rental agreement lacked a reasonable expectation of privacy in the vehicle and therefore lacked standing to challenge a search of the vehicle.

(3d. Cir. 2011), abrogated by Byrd,

. We originally relied on Kennedy to affirm the District Court’s denial of the motion to suppress, but the Supreme Court then vacated that order and remanded. United States v. Byrd,

(3d Cir. 2017), vacated and remanded,

.

4 earlier that day. Trooper Martin then searched the trunk and found a bulletproof vest and

a bag of heroin.

Terrence Byrd was indicted in 2014 on charges of possession with intent to

distribute heroin and possession of body armor by a person previously convicted of a

crime of violence. On April 13, 2015, he filed a motion to suppress the evidence

discovered in the trunk of the rental car. The District Court denied the motion, and Byrd

entered into a conditional plea agreement. On appeal, we affirmed on the ground that,

under our then-existing precedent, a driver of a rental car who was not on the rental

agreement lacked standing to raise a Fourth Amendment challenge. United States v.

Byrd,

(3d Cir. 2017), vacated and remanded, Byrd,

.

The Supreme Court granted certiorari and held that the absence of Byrd’s name on

the rental agreement did not eliminate his reasonable expectation of privacy, and he did

have Fourth Amendment standing to challenge the constitutionality of the search. Byrd,

. The Supreme Court remanded for this Court to consider whether the

officers had probable cause to support the search.

We then remanded to the District

Court to allow for a more developed factual record. Byrd, 742 F. App’x at 592. The

parties fully briefed the issues, and the District Court denied the motion to suppress as

well as a motion for reconsideration. Byrd entered a conditional guilty plea, was

sentenced to 120 months in prison, and now appeals.

5 II. Standard of Review

We review de novo the constitutionality of a stop or search and whether evidence

should have been suppressed. United States v. Bey,

, 144 n.19 (3d Cir.

2018). We review relevant factual issues for clear error.

III. Discussion

Byrd raises multiple arguments as to why the search of the rental vehicle was

improper. He contends that reasonable suspicion did not support the extension of his

detention to the point at which he referenced the “blunt.” Even assuming reasonable

suspicion supported the length of the stop, he argues that probable cause did not justify

the search of the vehicle. Finally, Byrd asserts that, even if probable cause existed to

support a search of the vehicle, such probable cause justified only a search of the

passenger area, not the trunk. We address each point in turn.

Byrd first argues that the officers lacked reasonable suspicion to prolong the stop

any longer than necessary to provide a warning or citation for the traffic violation. We

previously addressed this issue when we considered Byrd’s first appeal. There, we

recognized that, “[o]nce a valid traffic stop is initiated, ‘an officer who develops a

reasonable, articulable suspicion of criminal activity may expand the scope of an inquiry

beyond the reason for the stop and detain the vehicle and its occupants for further

investigation.’” Byrd,

(quoting United States v. Lewis,

(3d Cir. 2012)). We then stated:

The first officer’s observation of Byrd’s nervous avoidance of the center console coupled with Byrd’s non-photographic identification, his use of an alias, and the absence of his name on the rental agreement 6 gave rise to additional suspicion of other criminal activity. Moreover, we have little trouble concluding that, upon discovering a valid outstanding warrant from another state, an officer may extend a stop to inquire as to whether that other state wants the driver arrested for extradition. While the duration of the stop in this case may have been long, it was not constitutionally unreasonable.

(citations omitted). We see no reason to depart from that conclusion here.

Byrd contends that our holding in his first appeal did not consider the extension of

the stop to the point when the officers questioned Byrd about the contents of the vehicle.

Even if that were true, the same reasonable suspicion justified the additional conversation

and questioning. The officers had noticed Byrd was extremely nervous and avoided

opening the center console, and they were aware of his use of an alias, lengthy criminal

history, and outstanding warrant. These factors together gave them reasonable,

articulable suspicion of criminal activity to justify additional questioning about Byrd’s

identity and the vehicle’s contents. See Lewis,

.

Because the prolonged interaction between the officers and Byrd was

constitutionally permissible, we next consider whether probable cause supported the

warrantless search of the vehicle. Under the automobile exception to the Fourth

Amendment warrant requirement, officers may search a vehicle without a warrant if they

have probable cause to believe it contains evidence of a crime. United States v. Burton,

(3d Cir. 2002). We assess probable cause under the totality of the

circumstances and “from the standpoint of an objectively reasonable police officer.”

at 99 (quoting Ornelas v. United States,

(1996)); Illinois v. Gates,

(1983). Probable cause exists where the circumstances establish a “fair

7 probability that contraband or evidence of a crime will be found” in the vehicle. Burton,

(quoting Gates,

).

The officers here developed probable cause to search the vehicle when, in

response to questioning, Byrd acknowledged that he had a “blunt” in the car. The

officers reasonably understood the term “blunt” to refer to a marijuana cigarette and took

Byrd’s statement to indicate he had marijuana in the car. In a related context, we have

held that “the smell of marijuana alone, if articulable and particularized, may establish

not merely reasonable suspicion, but probable cause” to search a vehicle. United States

v. Ramos,

(3d Cir. 2006). Even more so than the smell of marijuana,

Byrd’s admission that he might have a blunt in the car gave the officers an articulable and

particularized basis to believe the vehicle contained dugs. Byrd’s admission, coupled

with the knowledge that Byrd was nervous, had a significant criminal history, and had

used an alias, established a fair probability that illegal drugs would be found in the car

and gave the officers probable cause to search for contraband.

Byrd contends that any probable cause to search for the blunt was limited to the

passenger area of the vehicle and did not justify the further search of the trunk. We

disagree. “[T]he police need have no more exact suspicions to search a trunk than are

required to search the passenger compartment under the automobile exception, nor need

they have independent reason to believe that the contraband for which they are searching

is located specifically in the trunk.” United States v. Rickus,

(3d Cir.

1984); see also United States v. Ross,

(1982). The officers here had

8 probable cause to search the entire vehicle for drugs, and they needed nothing more to

justify a search of the trunk.

Even if Byrd were correct that the comment about the blunt provided probable

cause to search only the passenger area, he overlooks the fact that, by the time the

officers searched the trunk, he had confessed to additional drug use. After the

commencement of the search of the passenger area but before the search of the trunk,

Byrd admitted to snorting cocaine earlier in the day. That statement indicated that Byrd

had possessed multiple illegal drugs and had lied about his drug involvement in earlier

conversations with officers. To the extent that, initially, the officers might have been

obligated to stop searching after examining the passenger area, the admission to cocaine

usage changed the circumstances. 3 Byrd’s admissions, in combination with the various

factors previously discussed, gave the officers ample reason to believe Byrd may have

additional drugs in the trunk.

The District Court rightly determined that the officers had probable cause to

search the entire vehicle, including the trunk. 4

3 The District Court excluded Byrd’s admission to cocaine usage from the probable cause analysis because the search of the vehicle had already begun at the time of the statement. If, however, we assume arguendo that the probable cause based on the blunt comment justified only a search of the passenger area, the admission to snorting cocaine becomes relevant to determine whether the officers received sufficient new information to establish probable cause to search the trunk. 4 Because probable cause justified the search under the automobile exception, we need not reach the good faith exception. We note, however, that Judge Conner properly concluded that the good faith exception would apply in his decision on Byrd’s motion for reconsideration because the officers reasonably believed in good faith that they had probable cause to search the vehicle. 9 IV. Conclusion

For the foregoing reasons, we will affirm.

10