                                            Filed:   March 14, 2000

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                            No. 98-4208
                            (CR-97-919)



United States of America,

                                                Plaintiff - Appellee,

          versus


Wiley Gene Wilson,

                                               Defendant - Appellant.



                             O R D E R



     The court amends its opinion filed March 7, 2000, as follows:

     On the cover sheet, section 2 -- the caption is corrected to

read “United States of America v. Wiley Gene Wilson.”

     On the cover sheet, section 7, line 1 -- counsel’s name is

corrected to read “Carolyn A. Dubay.”

                                         For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 98-4208

WILEY GENE WILSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-97-919)

Submittted: February 23, 2000

Decided: March 7, 2000

Before WILKINSON, Chief Judge, WIDENER, MURNAGHAN,
WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL,
MOTZ, TRAXLER, and KING, Circuit Judges.

_________________________________________________________________

Vacated by published opinion. Judge Michael wrote the opinion, in
which Chief Judge Wilkinson, Judge Widener, Judge Murnaghan,
Judge Wilkins, Judge Niemeyer, Judge Luttig, Judge Williams, Judge
Motz, Judge Traxler, and Judge King joined.

_________________________________________________________________

COUNSEL

ARGUED: Carolyn A. Dubay, Christopher G. Browning, Jr.,
HUNTON & WILLIAMS, Raleigh, North Carolina, for Appellant.
William Earl Day, II, Assistant United States Attorney, Florence,
South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United
States Attorney, Florence, South Carolina, for Appellee.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

Wiley Gene Wilson appeals his conviction and sentence for pos-
sessing a firearm while he was a felon and fugitive, in violation of 18
U.S.C. § 922(g)(1), (2). Wilson argues that the district court erred in
admitting the firearm into evidence over his objection that it had been
obtained as the result of an unconstitutional automobile stop. Because
we agree that the firearm should have been excluded, we vacate Wil-
son's conviction.

I.

This appeal turns on the undisputed facts that led a policeman to
stop Wilson's car in South Carolina on April 2, 1997. The story, how-
ever, begins a few months earlier, on August 16, 1996, when Wilson
was released from the Nevada State Prison after completing a sen-
tence for larceny and burglary. He went immediately to live with his
sister and brother-in-law in Crystal City, Missouri, where he resumed
serving a term of supervised release on an earlier federal conviction
for escape from a halfway house. On August 24, 1996, soon after he
arrived in Missouri, Wilson got into a dustup with his relatives, and
he was arrested and jailed for disturbing the peace. Wilson was
released after a few hours, and two days later (August 26, 1996) he
went to Las Vegas. On October 10, 1996, a federal warrant was
issued for his arrest on the charge that he had violated his supervised
release by failing to report the August 1996 arrest to his probation
officer and by leaving Missouri without permission.

Wilson managed to evade the authorities and eventually wound up
in Pageland, South Carolina, where his wife, Kimberly, and son were
living. After Wilson arrived in South Carolina, he decided to buy his
wife a car, and on March 31, 1997, he bought a used 1984 Mercury
Cougar from a car lot in Monroe, North Carolina. The bill of sale con-

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veyed title to Wiley Gene Wilson and Kimberly Ann Wilson. As
required by North Carolina law, the dealer placed a temporary (paper)
license tag on the car. Handwritten on the bottom of the tag were its
expiration date and the car's make and vehicle identification number.
See N.C. Gen. Stat. § 20-79.1.

Two days after the purchase, on the evening of April 2, 1997, Wil-
son was driving the Cougar on State Route 151 near Pageland, South
Carolina. He was on his way to a restaurant with his wife, his son, and
his son's girlfriend. A Pageland policeman, Alex McLemore, who
was on patrol that evening, happened to overtake the Cougar as it was
traveling along Route 151. Officer McLemore noticed that the car had
a North Carolina temporary tag, and he began following it. It was
dark, and Officer McLemore had his headlights on. The officer fol-
lowed behind the Cougar for a quarter to half of a mile, but he was
unable to read the expiration date on the tag. The officer admitted that
he never saw anything illegal about the tag or the operation of the car.
There was no evidence that the tag was concealed, improperly dis-
played, smudged, or faded by age. Solely because he could not read
the handwritten expiration date "in the bottom little corner of the
paper tag," Officer McLemore signaled for the driver of the Cougar
to pull over.

Wilson stopped, got out of the car, and met the officer midway
between the two cars. Officer McLemore asked for Wilson's driver's
license; Wilson first claimed he did not have a license and later said
he had lost it. The officer then went to the front passenger side of the
Cougar, where Kimberly Wilson gave him the bill of sale for the car.
When the officer saw that Wiley Gene Wilson and Kimberly Ann
Wilson were listed as the owners, he asked (Mr.) Wilson if he was
Wiley Gene Wilson. Wilson denied that he was, saying that he was
Boyd Wilson. Kimberly Wilson, however, confirmed that Wilson was
indeed Wiley Gene Wilson. Thereafter, while Officer McLemore's
dispatcher was attempting to run a computer check on Wilson, Kim-
berly Wilson suddenly recognized the officer from a prior meeting.
Mrs. Wilson reminded Officer McLemore that she had talked with
him in January 1997 when her son was missing and believed to be
somewhere in the West with his father, Wiley Wilson. The officer
then recalled that he had run a computer check on Wilson on the prior
occasion and had discovered a warrant outstanding for his arrest.

                    3
Upon realizing that Wilson was a fugitive, Officer McLemore
arrested him for driving without a license and without liability insur-
ance. Officer McLemore then searched the Cougar and found a
loaded 9mm handgun under the driver's seat.

Wilson was indicted for illegally possessing a firearm as a felon
and fugitive. At trial he moved to suppress the 9mm handgun on the
ground that it was the fruit of an unconstitutional stop. The stop was
unconstitutional, Wilson argued, because Officer McLemore did not
see or suspect any illegal activity. The district court denied the
motion, and the jury voted to convict. Wilson now appeals.

II.

A.

Because an automobile stop is a seizure of a person, the stop must
comply with the Fourth Amendment's requirement "that it not be
`unreasonable' under the circumstances." Whren v. United States, 517
U.S. 806, 809-10 (1996). As a result, such a stop "must be justified
by probable cause or a reasonable suspicion, based on specific and
articulable facts, of unlawful conduct." United States v. Hassan El, 5
F.3d 726, 729 (4th Cir. 1993). There are, of course, certain limited
circumstances where suspicionless stops are permissible. See, e.g.,
Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990) (uphold-
ing constitutionality of suspicionless vehicle stop at highway sobriety
checkpoint); United States v. Martinez-Fuerte , 428 U.S. 543 (1976)
(same, border patrol checkpoint). In any case, the Supreme Court has
made clear that the Fourth Amendment does not allow a random, dis-
cretionary automobile stop that is unsupported by articulable, reason-
able suspicion of a violation. See Delaware v. Prouse, 440 U.S. 648,
663 (1978); United States v. Villamonte-Marquez , 462 U.S. 579, 592
(1983) ("Random stops without any articulable suspicion of vehicles
away from the border are not permissible under the Fourth Amend-
ment . . . .").

The leading case of Delaware v. Prouse presented facts strikingly
similar to those before us today. In that Supreme Court case the
patrolman testified that he simply "saw a car in the area and wasn't
answering any complaints, so [he] decided to pull them off" to check

                    4
driver's license and registration. Delaware v. Prouse, 440 U.S. at 651.
Before making the stop the officer had observed neither "traffic or
equipment violations nor any suspicious activity." Id. at 650. Upon
walking up to the stopped car, the officer saw marijuana in plain sight
on the floorboard, and he arrested one of the occupants. The Supreme
Court did not mince words in holding that the suspicionless stop vio-
lated the Fourth Amendment:

          When there is not probable cause to believe that a driver is
          violating any of the multitude of applicable traffic and
          equipment regulations -- or other articulable basis amount-
          ing to reasonable suspicion that the driver is unlicensed or
          his vehicle unregistered -- we cannot conceive of any legiti-
          mate basis upon which a patrolman could decide that stop-
          ping a particular driver . . . would be more productive than
          stopping any other driver. This kind of standardless and
          unconstrained discretion is the evil the Court has discerned
          when in previous cases it has insisted that the discretion of
          the official in the field be circumscribed, at least to some
          extent.

Prouse, 440 U.S. at 661 (citation omitted).

The same "standardless and unconstrained discretion" that the
Fourth Amendment forbids was at work when Officer McLemore sig-
naled for Wilson to stop his car. The facts and circumstances reveal
that the officer did not have a reasonable suspicion-- in fact, the offi-
cer testified that he had no suspicion at all -- that Wilson was driving
without a license, operating an unregistered vehicle, or otherwise vio-
lating the law. There was nothing illegal about the operation of the
vehicle, and nothing appeared illegal about the temporary tag. It was
dark, and both cars were moving. Although Officer McLemore "could
not see the written-in expiration date on the tag," that appears to have
been a function of the darkness and the small space provided for writ-
ing in the date. There is no evidence that the temporary tag was illegi-
ble or in any way obliterated, smudged, or faded. Cf. State v. Hudson,
407 S.E.2d 583, 587 (N.C. Ct. App. 1991) (faded numbers suggested
that tag was more than thirty days old). There is no evidence that the
tag lacked any required information, United States v. Hill, 131 F.3d
1056, 1060 (D.C. Cir. 1997), that it was improperly displayed, United

                     5
States v. Dexter, 165 F.3d 1120, 1124-25 (7th Cir. 1999), or that it
was concealed in any way, United States v. McSwain, 29 F.3d 558,
560 (10th Cir. 1994). Wilson was pulled over solely because Officer
McLemore could not read the handwritten expiration date "in the bot-
tom little corner of the paper tag" as he drove behind Wilson after
darkness had fallen. An objective assessment of the facts and circum-
stances of this stop compels the conclusion that the officer lacked any
articulable, reasonable suspicion that a violation had occurred. Simply
put, he saw nothing wrong, and he suspected nothing. Upholding a
stop on these facts would permit the police to make a random, suspi-
cionless stop of any car with a temporary tag. The Fourth Amendment
does not afford the police such unbridled discretion. See Prouse, 440
U.S. at 663.

B.

The government argues that South Carolina law authorizes the
police to stop any car with temporary tags to determine whether the
owner is in compliance with the state's requirement that permanent
tags be obtained within thirty days of purchase. The government,
however, cannot point to any statute, regulation, or court decision
from South Carolina that authorizes such an investigatory stop. The
government relies solely on our conclusory statement in United States
v. McDonald, 61 F.3d 248, 254 (4th Cir. 1995), that under South Car-
olina law the presence of temporary tags on a car "entitle[s] [police]
to conduct an investigatory stop in order to determine whether the
car's owner [is] in violation of state law requiring permanent tags
within thirty days of a vehicle's purchase." The problem with
McDonald is that it cited no authority for the purported statement of
South Carolina law (for that matter, neither did the United States cite
any authority when it briefed that case). We have made an indepen-
dent search, and we find nothing in South Carolina's law to support
the statement in McDonald. At this point, we can only conclude that
McDonald misstated the law of South Carolina.1 Of course, any state
_________________________________________________________________

1 This case was argued before a panel of this court on October 29,
1999. Because the panel (like the district court) was bound by
McDonald, the members of this court in regular active service have, by
unanimous consent, authorized this opinion to be issued en banc.
Accordingly, McDonald is overruled to the extent it relied on a law that,
as it turns out, did not exist.

                    6
law that authorized a search or seizure would be subject to the
requirements of the Fourth Amendment. See United States v.
Manbeck, 744 F.2d 360, 382 (4th Cir. 1984) (holding that statute
authorizing customs officials to board vessels "must be interpreted in
a manner consistent with limitations imposed by the Fourth Amend-
ment").

C.

The Fourth Amendment does not allow a policeman to stop a car
just because it has temporary tags. Because Officer McLemore did
not have any articulable, reasonable suspicion of unlawful conduct, he
had no justification for stopping Wilson's car. Because the stop was
illegal, the gun found during the subsequent search of the car should
have been excluded from Wilson's trial. His conviction is therefore
vacated.2

VACATED
_________________________________________________________________

2 In light of this disposition it is unnecessary for us to consider Wil-
son's other arguments.

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