UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16-4848

UNITED STATES OF AMERICA,

Plaintiff – Appellee, v. BRIAN BOWMAN,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:15-cr-00101-MR-DLH-2)

Argued: December 7, 2017 Decided: March 1, 2018

Before TRAXLER, KING, and HARRIS, Circuit Judges.

Vacated and remanded by published opinion. Judge Traxler wrote the opinion in which Judge King and Judge Harris joined.

ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Ross Hall Richardson, Federal Public Defender, Interim, FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF NORTH CAROLINA, Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. TRAXLER, Circuit Judge:

Brian Bowman appeals the district court’s denial of his motion to suppress evidence recovered from a dog sniff conducted after an already-completed traffic stop. We conclude that the police officer had neither Bowman’s consent to extend the traffic stop nor a reasonable, articulable suspicion of ongoing criminal activity to justify doing so. Accordingly, the prolonged traffic stop abridged Bowman’s right under the Fourth Amendment to be free of unreasonable seizures. We vacate Bowman’s conviction for possession with intent to distribute methamphetamine and remand for such further proceedings as may be appropriate.

I.

At the suppression hearing before the magistrate judge, the government submitted a dashcam video recording of the entire traffic stop and presented the testimony of the arresting officer, Trooper Andrew Waycaster of the North Carolina State Highway Patrol’s Criminal Interdiction Unit. The evidence adduced at the hearing was as follows. In the early morning hours of June 20, 2015, Waycaster was patrolling U.S. Route 25 in Henderson County, North Carolina. He received a tip from the Drug Enforcement Agency (DEA) that two individuals suspected of transporting methamphetamine from Atlanta to the Asheville and Hendersonville areas were possibly driving “a red, older model Lexus” in the area. J.A. 82. Additionally, the DEA provided the license plate number for the vehicle. At about 3:40 a.m., Waycaster spotted a red 1998 Lexus traveling north on U.S. Route 25 and followed in his patrol vehicle. Rather than stop the vehicle based on the information provided by the DEA, Waycaster was “looking for [his]

2 own infractions . . . for [his own] reason to stop the vehicle.” J.A. 86. 1 According to Waycaster, the red Lexus weaved over the fog line and accelerated up to a steady 10 miles per hour over the speed limit, leading Waycaster to believe that the driver might be operating under the influence of alcohol or drugs.

Waycaster stopped the Lexus, approached from the passenger side of the vehicle and asked both occupants to show their hands. Bowman was the driver, and Homero Alvarez occupied the front passenger’s seat. Waycaster testified that Bowman appeared to be nervous because his hands were shaking when he handed over his vehicle registration and driver’s license. Waycaster indicated that Alvarez “was continually staring straight ahead” rather than looking at him, behavior that Waycaster found suspicious. J.A. 90. Waycaster further testified that he saw movement in Bowman’s and Alvarez’s carotid arteries, leading him to conclude that both men had elevated heart rates and were nervous.