U.S. v. Harvey

• Decision Date: 05 May 1994
• Docket Number: No. 92-2366,92-2366
• Citation: 24 F.3d 795
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcus Lamour HARVEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 795

24 F.3d 795

UNITED STATES of America, Plaintiff-Appellee, v. Marcus Lamour HARVEY, Defendant-Appellant.

No. 92-2366.

United States Court of Appeals Sixth Circuit.

May 5, 1994.

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

ORDER

The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and less than a majority of the judges having favored the suggestion, the petition for rehearing has been referred to the original hearing panel.

The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.

KEITH, Circuit Judge, dissenting from the denial of the petition for rehearing en banc.

Because I firmly believe this case presents one of the rare instances where en banc review is proper, I dissent from the denial of the petition for rehearing.

The Fourth Amendment imposes "a standard of 'reasonableness' upon the exercise of discretion by government officials." Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). Despite the Fourth Amendment's requirements, this circuit held the correct inquiry for pretextual stops is "whether [a] particular officer in fact had probable cause to believe that a traffic offense had occurred, regardless of whether this was the only basis or merely one basis for the stop." United States v. Ferguson, 8 F.3d 385 (6th Cir.1993). I dissented in Ferguson because I believe this test waives any meaningful review of stops, and therefore, is ripe for abuse. Harvey exemplifies the abuse of which I warned.

By focusing on the existence of minor traffic violations and refusing to examine other improper bases for a particular stop, the court fails to honor the guarantees of the Fourth Amendment and the Equal Protection Clause. The Constitution categorically prohibits disparate treatment based on race. Under the Ferguson test, however, the court's failure to limit an officer's discretion to stop motorists once a traffic offense establishes probable cause negates any reasonableness inquiry and permits pretext to serve as probable cause.

In the instant case, the majority primarily focused on the existence of minor traffic violations. The Appellants drove three miles over the speed limit in a vehicle without a bumper. Once the officer established the existence of traffic violations, the majority ignored the officer's testimony that he stopped the vehicle because the occupants were African-Americans. By myopically focusing on the traffic violations, the majority failed to consider the glaring Equal Protection violation. In doing so, the majority licensed disparate treatment based on race.

In Harvey, I dissented from the majority opinion and urged the court to adopt an exception to the Ferguson test that would avoid the result reached in the instant case and would prohibit the use of pretext as probable cause. I reiterate my dissent and note that this circuit grievously erred by denying the petition for rehearing en banc in the instant case.

BOYCE F. MARTIN, JR., Circuit Judge, dissenting from the denial of the petition for rehearing en banc.

In moving from a reasonable and consistent approach to Fourth Amendment claims involving alleged pretext to the ad hoc standard employed by the majority in this case, this Court has charted an ill-advised and dangerous course. Compare United States v. Pino, 855 F.2d 357, 361 (6th Cir.1988) (adopting test used in United States v. Smith, 799 F.2d 704, 708 (11th Cir.1986), that traffic stop is valid if reasonable officer would have made the seizure in the absence of an illegitimate motivation) with United States v. Ferguson, 8 F.3d 385, 391-92 (6th Cir.1993) (en banc) (stop is valid if officer had probable cause to believe that a traffic violation had occurred or was occurring). As a result, we have once again endorsed the introduction of evidence seized pursuant to what, in my opinion, is an illegal search.

The facts of the case are summarized in the majority opinion as follows:

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 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 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 bullet-proof 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.

United States v. Harvey, 16 F.3d 109, 110-11 (6th Cir.1994). At trial, the officer who conducted the stop testified in the following manner:

Q: Officer Collardey, you gave the Prosecutor two reasons for your effecting a traffic stop. One was the traffic infraction, speeding and equipment violation, and then you referred to something that I hadn't heard yet today, that was, fitting the general description of some sort of a profile?

A: It did, yeah, it did fit.

Q: Was it a certain way that the damage had been on this car that made it look like it fit a profile for you?

A: No, I made that statement on the basis of my experience on that highway, and drug traffickers that I have arrested in the Flint area.

Officer Collardey continued:

Q: What else made you think this fits some sort of a profile?

A: There were three young black male occupants in an old vehicle.

Q: Three young black male occupants in a car?

A: Yes, sir.

Q: And that was the basis or part of the basis for your stopping of that car?

A: The age of the vehicle and the appearance of the occupants.

. . . . .

Q (district judge): What was it about the appearance of the occupants that got your attention?

A: It wasn't so much the appearance. Almost every time that we have arrested drug traffickers from Detroit, they're usually young black males driving old cars.

Q: Was that why you stopped the car, or did you stop the car for traffic violations?

A: I stopped them for traffic violations.

Id. at 113 (Keith, J., dissenting).

This Court's current approach to Fourth Amendment claims such as the one in this case is 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 he had probable cause to believe that a traffic violation had occurred), or whether any officer "could" have stopped the suspect (because a traffic violation had in fact occurred), but on whether this particular officer in fact had probable cause to believe that a...