On January 26, 2021, the Fourth Circuit Court of Appeals decided the United States v. Myers[i], in which the court examined whether officers had probable cause to arrest a passenger in an automobile for drugs when neither he nor the driver claimed ownership of the drugs.  The relevant facts of Myers, taken directly from the case, are as follows:

In its efforts to stem the flow of drugs into Norfolk, Virginia, the drug interdiction unit of the Norfolk Police Department, headed by Sgt. William Winingear, regularly surveilled bus stations, the train station, the airport, hotels, motels, parcel facilities, and the highway.

On February 1, 2018, Sgt. Winingear was surveilling a parking lot bus station located next to a strip mall from where the New Everyday Bus Company operated an inexpensive bus service between Norfolk and Chinatown, New York City, known locally as “the China bus.” In the past, the China bus had been used to further drug distribution from New York City, and the interdiction unit had previously made drug seizures at that location.

At 11:30 p.m. on February 1, a China bus arrived at the bus stop, and Sgt. Winingear saw 20 to 30 passengers exit, including Myers. Myers stuck out as he had no bag, backpack, or luggage — as might be expected for the distance from New York — but was carrying only a “dark” unidentifiable “object” in his hand. Sgt. Winingear observed Myers walk around the front of the bus, look around, and then make a call on a cell phone. Minutes later, a silver Infiniti two-door sedan arrived, and Myers got into the passenger seat. Sgt. Winingear’s suspicion of Myers prompted him to “notif[y] the guys [in his unit] to start observing.” He also told Officer William Gibson of his concern, telling him that the silver Infiniti contained “a possible person of interest” and instructed him to follow the vehicle “[t]o see if they could obtain probable cause so that [they] could stop the vehicle” and ask some questions.

As Officer Gibson — along with Officer Donald Todd — began to follow the silver Infiniti, Gibson noted that the vehicle’s windows may have been excessively tinted, in violation of Virginia law. He followed the Infiniti as it passed two 7-Eleven convenience stores and then turned into a third 7-Eleven. After stopping at that 7-Eleven for a “short time,” the Infiniti retraced its route back to where the bus had stopped and then, by a circuitous, if not illogical, route entered Interstate 264, passing up one access to the westbound lanes and then taking another. Officer Gibson found the vehicle’s overall course to be “suspicious,” suggesting that its occupants might have known that they were being followed. After the vehicle entered the interstate, Gibson clocked its speed, and, both because it was speeding and because he believed that the windows were unlawfully tinted, he stopped the vehicle. As Gibson approached the driver’s side, he smelled marijuana, as did Officer Todd when approaching the passenger side. Based on that smell, the officers searched the vehicle and its occupants — the driver and Myers.

The search uncovered a “blue Honey Maid graham cracker box on the floorboard behind the front passenger seat.” The box was partially obscured by the seat, and because the automobile was a two-door sedan, the officers had to move the seat forward to see the entire box. The box contained a brick-like substance in a vacuum-sealed plastic bag, which field tested positive for fentanyl. Laboratory testing confirmed that preliminary test and found that the package contained over 300 grams. The search also uncovered three cell phones, one in the driver’s seat and two in the glove box, and a loaded 9mm pistol in the trunk. The driver claimed ownership of those four items. A search of Myers recovered another cell phone and approximately $1,800 in cash. Neither of the automobile’s occupants, however, claimed ownership of the drugs. A test of the Infiniti’s windows confirmed that they were excessively tinted — Virginia law prohibits tinting that screens over 50% of the light, and the Infiniti’s windows blocked 83%. Both Myers and the driver were arrested based on the fentanyl.[ii]

Myers was subsequently indicted for possession of fentanyl with intent to distribute.  He filed a motion to suppress and argued that the officers lacked probable cause to arrest him.  The district court denied the motion and Myers pled guilty with the right to appeal the denial of the motion to suppress.  He filed a timely appeal to the Fourth Circuit Court of Appeals.

The sole issue on appeal was whether the officers had probable cause to arrest Myers.  Myers argued that, because the driver claimed ownership of the three cell phones and the gun, and because courts have found that drugs and guns often go together, the officers lacked probable cause to believe that he also owned the drugs.

The court first noted the general legal principles related to probable cause and stated

[T]he Supreme Court has held that, to be reasonable, an arrest of an individual  must be supported by probable cause to believe that the individual has committed or is committing a crime. See Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001); United States v. Watson, 423 U.S. 411, 423-24, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976). The Court has recognized that probable cause is a generalized concept that can be given useful meaning only in context. This is because “it deals with probabilities and depends on the totality of the circumstances.” Pringle, 540 U.S. at 371. But generally, “probable cause” is characterized as “a reasonable ground for belief of guilt . . . particularized with respect to the person” being arrested. Id. (cleaned up). In that vein, we have noted that the probable-cause inquiry “does not involve the application of a precise legal formula or test but the commonsense and streetwise assessment of the factual circumstances.” United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004); see also Pringle, 540 U.S. at 370 (describing probable cause as a “practical, nontechnical conception that deals with the factual and practical considerations of everyday life” (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (cleaned up)). Thus, in determining whether an arrest was justified by probable cause, we take account of all the relevant facts known to the arresting officer and “the inferences [that may be] drawn by [the officer] on the scene,” including the “officer’s practical experience and the inferences the officer may draw from that experience.” Humphries, 372 F.3d at 657.[iii]

Thus, probable cause must be particular to a specific person.  The court then examined the facts that are relevant to the issue of probable cause.   The relevant facts were as follows:  (1) the bus stop between Norfolk and New York where Myers was observed was known as an entry point for drugs and often seized drugs at that location; (2) at 11:30 pm, Myers exited a bus with no luggage, carrying a dark object, made a phone call and was promptly picked up by a silver Infinity sedan; (3) the silver Infinity traveled an odd, circular route, indicative of the driver knowing that he was being followed; (4) when the Infinity was stopped for speeding and illegal window tint, the officers smelled the odor of marijuana from inside the vehicle; (5) a search of the vehicle yielded 300 grams of fentanyl in a box behind the passenger seat, $1,800 cash, a loaded gun, and three cell phones; and (6) while the driver claimed ownership of the gun and cell phones, neither the driver nor Myers claimed ownership of the fentanyl.

Myers argued that, because the driver claimed ownership of the gun, and since drugs and guns often go together, the officers lacked a “particularized” belief that he also possessed the fentanyl.

The court of appeals found the Supreme Court case, Maryland v. Pringle[iv], instructive regarding Myers’ case.  In Pringle, an officer stopped a vehicle for speeding during the early morning hours.  There were three occupants in the vehicle.  The officer obtained consent to search the vehicle and found $763 cash and five glassine bags of cocaine located at the backseat armrest.  All three occupants denied ownership of the cocaine and the officer arrested all three. Ultimately, the Supreme Court heard the case and held that the officer had probable cause to arrest all three occupants because it was reasonable to infer a common enterprise to possess the drugs among the occupants.  The Supreme Court stated

[A] car passenger . . . will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing. Here we think it was reasonable for the officer to infer a common enterprise among the three men. The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him.[v]

The Fourth Circuit further explained the rationale of the Supreme Court, in Pringle, and stated

Because the three occupants in Pringle denied ownership of drugs that were found in the automobile, the officer was justified in inferring that all three were involved in illegal conduct, justifying their arrest. While the role of each occupant was not known to the officer, he well could conclude that the community of conduct suggested by the circumstances particularized the suspicion as to all three and thus justified their arrest. The same is true for Myers and the driver of the silver Infiniti, in which the fentanyl was found.[vi]

Thus, in Myers’ case, like in Pringle, the totality of the circumstances allowed the officers to infer that both the driver and Myer were involved in the illegal conduct.

As such, the court of appeals affirmed the denial of the motion to suppress.



[i] No. 18-4940 (4th Cir. Decided January 26, 2021)

[ii] Id. at 3-6

[iii] Id. at 8-9 9 (emphasis added)

[iv] 540 U.S. 366 (2003)

[v] Id. at 373 (cleaned up)

[vi] Myers at 12-13

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