United States v. Cecil Ferguson

8 F.3d 385, 1993 U.S. App. LEXIS 28306, 1993 WL 437691
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 1, 1993
Docket91-6316
StatusPublished
Cited by367 cases

This text of 8 F.3d 385 (United States v. Cecil Ferguson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cecil Ferguson, 8 F.3d 385, 1993 U.S. App. LEXIS 28306, 1993 WL 437691 (6th Cir. 1993).

Opinions

BATCHELDER, Circuit Judge.

Defendant Cecil Ferguson appeals the district court’s denial of his motion to suppress a firearm and evidence of drug trafficking found, following a traffic stop, in a car in which he was a passenger. Ferguson argues that the district court erred in finding that the traffic stop was not unlawfully pretextual and in not suppressing the evidence because of the unlawful stop. For the reasons discussed below, we adopt a new test in this Circuit for determining when a traffic stop should be deemed unlawfully pretextual. Applying this test to the stop of defendant Ferguson, we AFFIRM the district court’s denial of his motion to suppress.

I.

At 1:30 a.m. on October 18, 1990, police officer Ernie Writesman of the Memphis Police Department was making a routine check on the parking lot of the Royal Oaks Motel in Memphis, Tennessee, in a marked patrol car. As Writesman was talking to a security guard, defendant Ferguson pulled into the parking lot in a 1977 blue Lincoln. He was followed by Leonard Lester, who was driving a 1977 Ford. Ferguson and Lester parked opposite each other near room 203. Ferguson got out of the Lincoln and began walking down the sidewalk abutting a row of rooms, toward the back of the parking lot. As Ferguson approached Writesman and the security guard, the security guard asked Ferguson if he could help him. Ferguson said that he was looking for room 212. The guard gave Ferguson directions, and Ferguson proceeded on.

Officer Writesman then got into his patrol car and drove toward the front of the motel, passing by the Ford, which was still sitting in the parking lot. Writesman observed Lester, who was still in the Ford, lie down across the front seat of the car in an apparent attempt to hide. His suspicions aroused, Writesman went across the street and positioned his patrol car so that he could observe the two individuals.

Writesman saw Ferguson get into the Ford with Lester and drive to a spot in front of a room other than room 212. Ferguson went into room 410 and came out about five to seven minutes later. The two then drove back around to the Lincoln. Ferguson took a gray briefcase from the Lincoln and got back into the Ford, and the men drove back to room 410. Ferguson went back into room 410 with the briefcase, came out about two to five minutes later still carrying the briefcase, and got back into the Ford. The two left the parking lot and drove down the street, leaving the Lincoln behind.

[387]*387Officer Writesman followed the Ford and upon noticing that there was no visible license plate on the car — a violation of a Memphis traffic ordinance — Writesman pulled the car over. Lester, who was driving, got out of the Ford and approached Writesman. Writesman first asked Lester for his driver’s license, which Lester gave him, and then Writesman asked what the two men were doing. Lester explained that he had been at a motel with a young lady for about an hour, and he asked why Writesman was stopping him. The record does not reflect whether Writesman answered Lester’s question. Apparently, Writesman did not ask about the license plate or issue any citation for failure to display a license plate, but instead put Lester into the back of his squad car and called for a back-up. After the back-up arrived, Writesman approached the Ford, where he saw Ferguson, still sitting in the passenger seat, with a .22 automatic pistol lying next to him on the front seat of the car. Writesman then arrested Ferguson. In searching the car and the briefcase incident to Ferguson’s arrest, police found drug notes, plastic bags, scales with white powder on them, and a plastic bag containing envelopes of cocaine. It was’not until later that Writesman discovered that the license plate for the car had been lying on the rear shelf of the car, although it was not visible from the outside of the car unless one were standing next to the rear window.

Ferguson was indicted by a grand jury for possession with intent to distribute about 33.5 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1), and carrying or using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). He filed a motion to suppress the firearm and the evidence of drug trafficking, claiming that the stop was pretextual and therefore illegal. At the hearing before a magistrate judge, Officer Writesman testified that the “number one” reason he stopped the car was because of the individuals’ activity at the motel, although he stated that he also stopped it for the license plate violation. The magistrate judge recommended that the motion be denied, and the district court adopted the magistrate’s recommendation over Ferguson’s objections.

The district court found that Ferguson was seized when Officer Writesman pulled him over and that the activities observed by the officer at the motel were enough to support a stop and detention based on reasonable suspicion. The court also found that the stop was not pretextual, noting that a pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place in connection with an unrelated crime as to which they lack reasonable suspicion. The district court held that pretext must be determined through an objective assessment of the officer’s actions and that this stop was not pretextual under either of the approaches that courts have employed to make this assessment. Under the first approach, Writesman was authorized to stop the vehicle for a license tag violation and had probable cause to believe that such a violation had occurred. Under the second approach, Writesman routinely stopped cars that did not have visible license plates, and there was no evidence that a reasonable officer would not have stopped the car. Therefore, it denied the motion to suppress.

The district court then accepted a negotiated plea agreement that permitted Ferguson to enter a conditional plea of guilty to the drug charge, while reserving the right to appeal the denial of his motion to suppress. Pursuant to the agreement, the government dismissed the firearm charge. Ferguson was sentenced to 168 months of imprisonment.

Ferguson appealed his conviction and sentence, and a panel of this Court reversed the conviction and vacated the sentence because it found that the traffic stop was unlawfully pretextual. We vacated the panel’s decision in order to address en banc this issue: “Where an officer has probable cause to make a traffic stop, and also has motivations that are unrelated to the traffic stop such as an intent to investigate suspicious activity, may the stop be deemed unconstitutional because it is pretextual?”1

[388]*388II.

A.

Whether a traffic stop violates the Fourth Amendment must be evaluated in the same manner as other alleged violations of that Amendment: by undertaking “an objective assessment of an officer’s actions in light of the facts and circumstances then known to him. The language of the Amendment itself proscribes only ‘unreasonable’ searches and seizures.” Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717, 1723 (1978).

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Bluebook (online)
8 F.3d 385, 1993 U.S. App. LEXIS 28306, 1993 WL 437691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cecil-ferguson-ca6-1993.