24 F.3d 795 (6th Cir. 1994), 92-2366, United States v. Harvey

Docket Nº:92-2366.
Citation:24 F.3d 795
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marcus Lamour HARVEY, Defendant-Appellant.
Case Date:May 05, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 795

24 F.3d 795 (6th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


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.


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.

Page 796

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...

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