16 F.3d 109 (6th Cir. 1994), 92-2366, United States v. Harvey

Docket Nº:92-2366.
Citation:16 F.3d 109
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marcus Lamour HARVEY, Defendant-Appellant.
Case Date:February 09, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 109

16 F.3d 109 (6th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


Marcus Lamour HARVEY, Defendant-Appellant.

No. 92-2366.

United States Court of Appeals, Sixth Circuit

February 9, 1994

Argued Sept. 11, 1993.

Rehearing and Rehearing En Banc

Denied May 5, 1994.

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Robert Haviland, Asst. U.S. Atty., Nancy A. Abraham (argued), Flint, MI, for plaintiff-appellee.

Marcus Lamour Harvey (briefed), Milan, MI, Robert E. Caron (argued and briefed), Caron & Associates, Sylvan Lake, MI, Arthur J. Weiss (briefed), Arthur J. Weiss Assoc., Farmington Hills, MI, for defendant-appellant.

Before: KEITH, GUY, and BATCHELDER, Circuit Judges.

BATCHELDER, Circuit Judge.

Marcus Harvey appeals from the judgment of conviction entered on his conditional plea of guilty following the district court's denial of his motion to suppress the evidence obtained from a warrantless search of the vehicle in which he was a passenger. For the reasons that follow, we affirm the conviction.

Defendant makes three assignments of error, 1 claiming that the district court was required on any of three grounds to suppress both the physical evidence and the defendant's statements obtained as a result of the stop and the search of the vehicle. First, he claims clear error in the district court's finding that the stop of the vehicle in which he was riding was not pretextual. Second, he argues that the district court erred in finding that the warrantless search of the stopped vehicle was a valid inventory search. Finally, he argues that the district court erred in determining that the officers who stopped the car had probable cause to search it.

Briefly stated the facts are these. On May 22, 1990, on I-475 in Genesee County, Michigan, the defendant was a passenger in a 1978 Chevrolet automobile that had no front bumper or right front headlight and that was clocked by police officers exceeding the speed limit by several miles per hour. The officers stopped the vehicle for speeding and equipment violations and because, as one officer later testified at the suppression hearing, "[t]he vehicle that I observed with the defective equipment was very similar in appearance and profile to several other vehicles that I have stopped which ultimately ended in arrests of drug traffickers." When the driver of the car was unable to produce a driver's license, he was asked to step out of the car. He admitted then that his license was suspended; he was placed under arrest for driving with a suspended license; and, while being searched incident to the arrest, he was found to have a rock of crack cocaine in his jacket pocket. The driver gave conflicting stories about who owned the car, but the vehicle registration that he produced showed defendant Marcus Harvey to be the owner. Neither Harvey nor the other passenger could produce a driver's license (Harvey's license had been suspended also and the

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other passenger had never obtained a license), or any other form of identification. Both passengers were asked to get out of the vehicle and were patted down for weapons by the officers; no weapons were found. Following the policy of their police department, the officers impounded the car because there was no licensed driver to drive it away, and conducted an inventory search of the car. Because none of the occupants had the key to the vehicle's trunk, the officers removed the back seat in order to inventory the trunk and found there a pair of men's sweat pants whose pockets contained 78 rocks of crack cocaine and six live .357 magnum revolver cartridges. Also in the trunk was a bulletproof vest. At this point the officers pried open the trunk of the car to more carefully search it and found a .357 magnum six-shot revolver.

Defendant Harvey was arrested for possession with intent to distribute cocaine and possession of a firearm during the commission of a felony. After being given the Miranda 2 warnings, defendant was interviewed and provided police with a written statement. Defendant was subsequently indicted for possession with intent to distribute cocaine, conspiracy to distribute cocaine, and use of a firearm during a drug trafficking offense. The trial court denied defendant's motion to suppress the evidence seized during the search of the vehicle and the statements made by him following his arrest, and defendant entered this conditional plea.

Defendant's first assignment of error is foreclosed by this court's recent en banc decision in United States v. Ferguson, 8 F.3d 385 (6th Cir.1993). Defendant does not dispute that the automobile in which he was riding was exceeding the speed limit at the time it was stopped, or that it was in violation of the applicable state laws because of its equipment deficiencies. Defendant concedes that had the officers stopped the car solely because of either or both of those violations, the stop would have been lawful. Rather, defendant argues that no reasonable police officer would have stopped the car for those violations absent some other motive, and that the actual reason for the stop in this instance was not the obvious violations of the law but the fact that the car and its occupants fit the officer's notion of a "drug profile." In Ferguson, we held that

so long as the officer has probable cause to believe that a traffic violation has occurred or was occurring, the resulting stop is not unlawful and does not violate the Fourth Amendment. We focus not on whether a reasonable officer "would" have stopped the suspect (even though...

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