United States v. Herbin

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Herbin No. 02-5143 ELECTRONIC CITATION: 2003 FED App. 0328P (6th Cir.) File Name: 03a0328p.06 _________________ OPINION UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT SUTTON, Circuit Judge. A federal grand jury indicted _________________ Terry Lamont Herbin for violating 18 U.S.C. § 922(g), which prohibits convicted felons from possessing firearms, after the UNITED STATES OF AMERICA , X police seized a .38 caliber handgun from the car in which Plaintiff-Appellant, - Herbin was a passenger. Herbin moved to suppress the - firearm, arguing that narcotics officers violated the Fourth - No. 02-5143 Amendment when they used traffic violations as a pretext to v. - stop the car. The District Court granted the motion and > suppressed the weapon. We REVERSE. , TERRY LAMONT HERBIN , - Defendant-Appellee. - I. N On July 3, 2001, several narcotics agents, driving unmarked Appeal from the United States District Court cars, tailed two vehicles in Johnson City, Tennessee. The for the Eastern District of Tennessee at Greeneville. first car was driven by Lisa Thompson, and included Herbin No. 01-00071—Thomas G. Hull, District Judge. in the passenger seat. The second car was driven by Herbin’s brother. In tailing the vehicles, the agents admitted that their Submitted: August 1, 2003 primary mission was to pursue a drug-trafficking investigation, not to enforce the traffic laws. The agents Decided and Filed: September 15, 2003 acknowledged that they had information that Terry Herbin was in the area for the purpose of distributing narcotics. Before: DAUGHTREY, MOORE, and SUTTON, Circuit Judges. The two drivers – Ms. Thompson and Herbin’s brother – soon gave the agents another explanation for stopping the _________________ cars. The agents observed both cars run a red light and, later, saw Thompson’s car cross the center line twice. When the COUNSEL two cars eventually pulled into a parking lot, the agents activated their lights and initiated a traffic stop. ON BRIEF: Dan R. Smith, ASSISTANT UNITED STATES ATTORNEY, Johnson City, Tennessee, for Appellant. As the agents approached the cars, Herbin’s brother exited William L. Ricker, RICKER LAW OFFICE, Greeneville, the second car as if to flee. The agents drew their weapons Tennessee, for Appellee. and ordered him to stop. One of the agents then reached into Lisa Thompson’s car through the window and removed the key from the ignition. The officers asked Ms. Thompson and

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Terry Herbin to exit the car in which they were riding and to This case does not mark a new path. In Whren v. United remain at the scene. States, 517 U.S. 806, 812–13 (1996), the Supreme Court held that the legality of a traffic stop turns on the validity of the Although Agent Thompson testified that he stopped the officers’ objective explanation for making the stop, not on the vehicles to issue a citation and to determine whether Ms. subjective intentions of the officers in initiating the stop. A Thompson was intoxicated (because she had crossed the traffic stop supported by probable cause, Whren makes clear, center line), the agents never pursued the traffic violations. may not be invalidated under the Fourth (and Fourteenth) They did not ask for drivers’ licenses,“run the tags” on the Amendment on the ground that the officers stopped the car vehicles, perform any field sobriety tests, or issue any tickets. for “pretextual” reasons – which is to say, acted upon a What they did do once they had obtained order over the area violation of one set of laws (e.g., run-of-the-mill traffic laws) was to ask Ms. Thompson for permission to search her car for in order subjectively to enforce another set of laws (e.g., drug- contraband. Ms. Thompson consented, and the search trafficking laws). In the words of Whren: “Subjective revealed a loaded .38 caliber handgun beneath the passenger intentions play no role in ordinary, probable-cause Fourth seat in which Herbin had been sitting. Amendment analysis.” Id. at 813. See also Arkansas v. Sullivan, 532 U.S. 769, 771–72 (2001) (per curiam) (holding Presumably on the basis of this evidence, a grand jury that a custodial arrest for a traffic violation and search indicted Herbin for violating 18 U.S.C. § 922(g), which incident to arrest do not violate the Fourth Amendment just prohibits convicted felons from possessing firearms. Herbin because the officer had an improper subjective motivation for moved to suppress the weapon. A magistrate judge making the stop). recommended denying the motion because (1) the stop was supported by probable cause that traffic violations had Both before and after Whren, this Court has adhered to this occurred and (2) the driver had consented to the subsequent principle. In United States v. Bailey, 302 F.3d 652 (6th Cir. search of her vehicle. 2002), in rejecting a similar argument, the Court held that two officers had lawfully stopped a motorist whom they had The District Court disagreed. In its view, “the initial traffic witnessed driving down the wrong side of the road. That the stop in this case was a pretext, [ ] the subsequent detention of officers were allegedly “making traffic stops” as a “pretext” the defendant and the officers’ actions were not related to the to investigate complaints of drug activity was “irrelevant,” we circumstances justifying the initial stop, and [ ] the search emphasized, because the officers “had probable cause to stop incident to that stop was in violation of the defendant’s Fourth [the motorist] for a traffic violation.” Id. at 656–57. Nor did Amendment rights.” The Government appealed. we stray from this path in United States v. Burton, 334 F.3d 514 (6th Cir. 2003), in holding that the Fourth Amendment II. permitted a police officer to stop a car that he observed parked in a no-parking area, regardless of the officer’s We review the District Court’s legal conclusions de novo, subjective motivation for the stop. Id. at 516–17. See also United States v. Bailey, 302 F.3d 652, 656 (6th Cir. 2002), United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999) (“an and, finding them erroneous, need not question its factual officer may stop a vehicle for a traffic violation when his true findings. motivation is to search for contraband, as long as the officer had probable cause to initially stop the vehicle”); United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) (en banc). No. 02-5143 United States v. Herbin 5 6 United States v. Herbin No. 02-5143

Measured by these precedents, the District Court’s decision a custodial arrest for a misdemeanor traffic violation even cannot stand. Under Whren and this Court’s cases, the though it is not an arrestable offense under state law); District Court’s finding that the initial traffic stop was “a Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (“once pretext” is legally beside the point. No one disputes that the a motor vehicle has been lawfully detained for a traffic agents had probable cause to stop Ms. Thompson’s car when violation, the police officers may order the driver to get out of it ran a red light and twice crossed the center line. the vehicle without violating the Fourth Amendment’s Accordingly, the agents had an objectively justifiable basis proscription of unreasonable searches and seizures”). On this for stopping the car. record, we find no illegality in the officers’ actions, particularly in light of the sudden movements of Herbin’s Nor do the officers’ subjective intentions become relevant brother and the violations of the traffic laws that had already in assessing the agents’ conduct after the initial stop. Herbin occurred. contends that the agents ran afoul of the Fourth Amendment when, without any intention of pursuing the traffic violations, Lastly, once the scene was under control, there was nothing the agents drew their guns on the vehicle occupants, seized unreasonable about asking Ms. Thompson for permission to the key to Lisa Thompson’s car, and requested her consent to search her car. See Robinette, 519 U.S. at 39-40 (holding that search it. The Supreme Court’s decision in Ohio v. Robinette, an officer need not advise a detained motorist that he or she 519 U.S. 33 (1996), however, forecloses this argument. It is free to go before asking whether the motorist would makes clear that continuing to detain a motorist does not consent to a search for contraband); United State v. Erwin, become unlawful just because the officer has determined in 155 F.3d 818, 822–23 (6th Cir. 1998) (en banc) (“irrespective his own mind not to pursue the traffic violation. Id. at 38. of whether the deputies were justified in detaining [the From beginning to end, the constitutionality of a traffic stop motorist] after he showed no signs of intoxication, and even under the Fourth Amendment depends on the objectively if they had not, after approaching [him], observed conditions reasonable justifications for the officers’ actions, not their raising a reasonable and articulable suspicion that criminal subjective intentions. activity was ‘afoot,’ they were entitled to ask [the motorist] for permission to search his vehicle”). As this Court recently Here, the circumstances of the stop and detention were explained in United States v. Burton, 334 F.3d 514 (6th Cir. within legal limits. Before the agents even had an 2003), a case involving a similar traffic stop, “‘[q]uestions opportunity to pursue the traffic violations, Herbin’s brother that hold potential for detecting crime, yet create little or no exited the second car as if to flee. Already suspecting Terry inconvenience, do not turn reasonable detention into Herbin of criminal activity, the agents responded with unreasonable detention.’” Id. at 518 (quoting United States v. appropriate caution: They did not ask for drivers’ licenses, Childs, 277 F.3d 947, 954 (7th Cir. 2002) (en banc)). Had run the tags, attempt to perform a field sobriety test, or issue Ms. Thompson declined to answer questions and had there a ticket. They instead drew their weapons, seized the been no reasonable suspicion to detain her and the Herbin occupants, and removed the key from the ignition of Ms. brothers for something other than traffic violations, the agents Thompson’s car. The agents already had authority to seize, would have been required to “pursue” the traffic violations or at least temporarily, the vehicles and their occupants based on let the vehicles and occupants go. Instead, she voluntarily probable cause to believe traffic laws had been violated. See consented, a fact that Terry Herbin does not dispute. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (the Fourth Amendment does not prohibit an officer from making No. 02-5143 United States v. Herbin 7

Because we conclude that the seizure was the product of a lawful traffic stop, followed by the driver’s voluntary consent to a search, we do not address the Government’s alternative argument that Herbin lacked standing to move to suppress the weapon discovered in the car. III. For the foregoing reasons, we REVERSE the judgment of the District Court granting Herbin’s motion to suppress, and we REMAND for further proceedings consistent with this opinion.