138 F.3d 126 (4th Cir. 1998), 97-4017, United States v. Sullivan

Docket Nº:97-4017.
Citation:138 F.3d 126
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Robert H. SULLIVAN, Defendant-Appellee. Washington Legal Foundation; Jeff Sessions, United States Senator; Jon Kyl, United States Senator; John Ashcroft, United States Senator; Strom Thurmond, United States Senator, Amici Curiae.
Case Date:March 09, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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138 F.3d 126 (4th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellant,


Robert H. SULLIVAN, Defendant-Appellee.

Washington Legal Foundation; Jeff Sessions, United States

Senator; Jon Kyl, United States Senator; John

Ashcroft, United States Senator; Strom

Thurmond, United States

Senator, Amici Curiae.

No. 97-4017.

United States Court of Appeals, Fourth Circuit

March 9, 1998

Argued Dec. 4, 1997.

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[Copyrighted Material Omitted]

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ARGUED: Patty Merkamp Stemler, Chief, Appellate Section, Criminal Division, United States Department of Justice, Washington, DC, for Appellant. David Benjamin Smith, English & Smith, Alexandria, VA, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Eastern District of Virginia, William G. Otis, Senior Litigation Counsel, Mark S. Determan, Special Assistant U.S. Attorney, Alexandria, VA, for Appellant.

Before NIEMEYER, Circuit Judge, WILSON, Chief United States District Judge for the Western District of Virginia, sitting by designation, and JONES, United States District Judge for the Western District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Chief Judge WILSON and Judge JONES joined.


NIEMEYER, Circuit Judge:

We are presented with the question of whether the defendant's confession, made following a routine traffic stop, and a gun subsequently seized from the defendant's automobile should be suppressed under both the Fourth and Fifth Amendments. The district court granted the defendant's motion to suppress, holding that when the defendant was "subjected ... to six repeated, insistent questions obviously designed to invite incrimination," he was taken into custody and therefore should have been given Miranda warnings. On the government's interlocutory

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appeal, we reverse and remand this case for further proceedings.


At midday on January 23, 1996, United States Park Police Officer Franz Ferstl stopped a car traveling northbound on the George Washington Memorial Parkway in Virginia because the car was missing its front license plate. After Robert Sullivan, the driver, produced his driver's license and car registration, Officer Ferstl noticed that the missing license plate was displayed on the car's dashboard. The officer then asked Sullivan whether he had any outstanding traffic tickets in Virginia. With that question, Sullivan's demeanor changed noticeably. He responded that he believed he owed $30 on a ticket he had received for making an illegal u-turn. Suspecting that Sullivan's license may have been suspended, Officer Ferstl returned to his police cruiser in order to run a check on Sullivan's driving record. Since the Park Police computer was "down" at the time, Ferstl requested assistance from the Airport Police at nearby Washington National Airport. Between five and ten minutes later, Airport Police Officer Roscoe Evans arrived on the scene and ran the check on Sullivan's license and registration. The computer check took less than five minutes to complete and came up negative. After Ferstl indicated that he had the situation under control, Evans departed the scene. Officer Ferstl then returned to Sullivan's car, handed Sullivan his license and registration, and advised Sullivan to take care of the unpaid ticket and replace the missing license plate. The traffic stop at this point had lasted approximately 15 to 20 minutes.

When Sullivan's driving record appeared clean, Officer Ferstl suspected that "there [was] something else wrong here." Accordingly, after returning Sullivan's license and registration, Ferstl asked Sullivan "if he had anything illegal in the vehicle." Sullivan hesitated before responding, and Ferstl noticed that his lip "started to shake and quiver." Sullivan then responded, "illegal?!" with his "tone raised." Becoming more suspicious, Ferstl repeated the question. This time, instead of answering, Sullivan only "turned his head forward and looked straight ahead." Ferstl then told Sullivan that "if he had anything illegal in the vehicle, it's better to tell me now." When Sullivan still did not answer, Ferstl again asked him what he had in the car and told him that "he could tell me.... I would be cool with him." After Ferstl asked Sullivan another time what was in the car, Sullivan finally replied, "I have a gun." Ferstl then asked Sullivan where the gun was located, and Sullivan replied, "under the seat." This dialogue lasted "probably less than a minute."

Following Sullivan's statement, Officer Ferstl ordered Sullivan to place his hands on the steering wheel of the car, thanked him for his cooperation, and requested backup. Once additional police officers, including Officer Evans, arrived, Ferstl ordered Sullivan out of his vehicle and handcuffed him. Ferstl then recovered a Browning 9mm pistol loaded with 14 rounds of ammunition from under the driver's seat of the car. The officers advised Sullivan that he was under arrest and later released him with a citation, charging him with illegal possession of a handgun. It is undisputed that at no time during the encounter did Officer Ferstl advise Sullivan of his Miranda rights, nor did he ever inform Sullivan that he was free to leave.

After the government discovered that Sullivan had previously been convicted for armed robbery, the grand jury indicted him with being a convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Prior to trial, Sullivan moved to suppress both his confession and the gun on the grounds that the confession was involuntary and had been obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The government argued in opposition that, when Sullivan was being questioned by Officer Ferstl, he was not "in custody" for purposes of Miranda and that his confession had been voluntarily made.

The district court granted Sullivan's motion to suppress. 948 F.Supp. 549, 558 (E.D.Va.1996). It pointed out that Officer Ferstl's questions concerned "a matter wholly

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unrelated to the reasons for the traffic stop." Id. at 550. The court therefore stated the issue as "whether Officer Ferstl's repeated questioning regarding matters outside the scope of the circumstances leading to the traffic stop amounted to a custodial interrogation." Id. Relying on Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the district court found that "an objectively reasonable person in the defendant's place would not have felt that he could leave prior to the sixth question. Therefore, for purposes of Miranda, the defendant was 'in custody.' " 948 F.Supp. at 557-58. The court accordingly concluded that Sullivan's confession and its fruits "must be suppressed." Id. at 558.

The government noticed an interlocutory appeal, see 18 U.S.C. § 3731, and Sullivan's trial on the charges was postponed pending the outcome.


In the district court, Sullivan based his suppression motion on the alleged denial of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in which the Supreme Court imposed procedural duties on government officials to protect the Fifth Amendment rights of persons during custodial interrogations. During oral argument, however, it appears that Sullivan may also have argued Fourth Amendment principles, urging that he had been illegally seized when the purpose of the traffic stop had ended and the police officer continued to question him on matters unrelated to the stop. On appeal, Sullivan clearly relies on both Fourth and Fifth Amendment grounds to support the district court's suppression order.

While the district court conducted its analysis under both the Fourth and Fifth Amendments, it rested its suppression order on the failure to give Sullivan his Miranda warnings. Thus, before conducting our review, it will be useful to outline the applicability of Fourth and Fifth Amendment principles to traffic stops.

In order to protect the rights granted by the Fifth Amendment that "[n]o person ... shall be compelled in any criminal case to be a witness against himself," U.S. Const. amend. V, the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), adopted prophylactic procedural rules that must be followed during custodial interrogations. The Court held that a suspect in custody "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. at 444, 86 S.Ct. at 1612. Any statements elicited from a suspect in violation of these rules are inadmissible in the prosecution's case-in-chief. See United States v. Leshuk, 65 F.3d 1105, 1108 (4th Cir.1995) (citing Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1528-29, 128 L.Ed.2d 293 (1994) (per curiam)).

The procedural safeguards prescribed by Miranda apply "only where there has been such a restriction on a person's freedom as to render him 'in custody.' " Stansbury, 511 U.S. at 322, 114 S.Ct. at 1528 (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 713-14, 50 L.Ed.2d 714 (1977) (per curiam)). A person is "in custody" for purposes of Miranda either if the person has been arrested or if his freedom of action has been curtailed to a degree associated with arrest. Id.; Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); Leshuk, 65 F.3d at 1108.

Addressing whether traffic stops implicate the requirements of Miranda, the Supreme Court in Berkemer observed that even though "few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so," 468 U.S. at 436, 104 S.Ct. at...

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