601 F.3d 484 (6th Cir. 2010), 09-5111, United States v. Everett

Docket Nº:09-5111.
Citation:601 F.3d 484
Opinion Judge:BOGGS, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Harvey EVERETT III, Defendant-Appellant.
Attorney:C. Douglas Thoresen, Office of the Federal Public Defender, Nashville, Tennessee, for Appellant. Blanche Bong Cook, Assistant United States Attorney, Nashville, Tennessee, for Appellee. C. Douglas Thoresen, Michael C. Holley, Office of the Federal Public Defender, Nashville, Tennessee, for Appell...
Judge Panel:Before: BOGGS and NORRIS, Circuit Judges; and ADAMS, District Judge.[*]
Case Date:April 06, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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601 F.3d 484 (6th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,


Harvey EVERETT III, Defendant-Appellant.

No. 09-5111.

United States Court of Appeals, Sixth Circuit.

April 6, 2010

Argued: March 3, 2010.

Page 485


C. Douglas Thoresen, Office of the Federal Public Defender, Nashville, Tennessee, for Appellant.

Blanche Bong Cook, Assistant United States Attorney, Nashville, Tennessee, for Appellee.


C. Douglas Thoresen, Michael C. Holley, Office of the Federal Public Defender,

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Nashville, Tennessee, for Appellant.

Kelly D. Young, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: BOGGS and NORRIS, Circuit Judges; and ADAMS, District Judge.[*]


BOGGS, Circuit Judge.

Defendant Harvey Everett III was convicted of being a felon in possession of a firearm after he volunteered during a traffic stop, in response to the detaining officer's questioning, that he had a shotgun in his car. He appeals his conviction, arguing that the shotgun should have been suppressed because the officer's questioning on a subject unrelated to his traffic offense violated the Fourth Amendment. This case presents us with an issue of first impression in this circuit: under Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), and Arizona v. Johnson, __ U.S. __, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), when, if ever, may an officer conduct questioning during a traffic stop that (1) is unrelated to the underlying traffic violation, (2) is unsupported by independent reasonable suspicion, and (3) prolongs the stop by even a small amount? We hold that the questioning here did not violate the Fourth Amendment, and accordingly, we affirm.


Even before he was arrested, April 15, 2008 was shaping up to be a bad day for Mr. Everett. That evening, he had helped his estranged wife (with whom he was in the process of obtaining a divorce) move into a new house. At her insistence, Everett had retrieved some of the possessions that he had been storing with her, including a shotgun. By the time he had finished, it was approximately 8:30 p.m. This being tax day, however, Everett needed to get to the office of Advance Financial, a tax-preparation company, before closing time-which he believed to be 9:00 p.m.-in order to seek help filing for an extension.

A few minutes before 9:00, Detective Morgan Ford, sitting in her patrol car on a Nashville thoroughfare, saw Everett drive by at a high rate of speed. 1 Ford was a member of the Nashville Police Department's " Flex Team," which she described as " an aggressive patrol unit designed to make traffic stops and Terry stops in high-crime areas to reduce crime." In other words, as Everett characterizes it, Ford was planning to make " pretext[ual]" traffic stops " with the real purpose of trying to ferret out other types of crime."

Ford followed Everett to the Advance Financial office. As Everett parked, she pulled up next to him with her lights on and approached his vehicle. At that point, if not before, Ford would have seen that Everett was a middle-aged African-American male. She asked Everett (who was still in his car) for his license, registration, and proof of insurance. Everett admitted that his license was suspended, but produced alternate identification and proof that he was in the process of paying off the required fines to get his license back. At that point, Ford " started smelling ... alcohol" on Everett's breath. 2

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Ford then asked Everett to step out of the vehicle, and he readily complied. Ford did not immediately continue with what she testified was standard traffic-stop procedure-i.e., checking for registration and proof of insurance. Nor did she directly proceed to write Everett a speeding ticket. Instead, Ford at once asked him " if he had anything illegal on his person, any weapons or narcotics or anything like that, or anything illegal in his vehicle." As the government concedes, Ford had no particularized basis to suspect that Everett possessed any weapons, drugs, or other contraband-although she testified that, in her experience, it was " very common ... for people to have firearms in [their] vehicle after they have been drinking." 3

Everett responded that he " had an open forty-ounce beer and a .410 shotgun, which ... he knew he was not supposed to have because he was a convicted felon." Ford asked what his conviction was for, and he answered " drugs." Ford then asked if Everett had " any other weapons or anything else on his person she needed to know about." He said he did not. Ford asked if she could check; Everett agreed. Upon conducting a pat-down, she found two baggies of marijuana in his jacket pocket.

Ford handcuffed Everett, Mirandized him, and placed him in her squad car. She then searched Everett's vehicle, where she found the .410 shotgun, which was unloaded and wrapped in a black trash bag, on the floorboard of the back seat. She also found the open forty-ounce beer, as well as a set of digital scales with white powder residue, which field-tested positive for crack cocaine. Because Everett had been so cooperative, Ford decided to " cut [him] a break" on the firearm charge and issued him misdemeanor citations for simple possession of marijuana, possession of drug paraphernalia, and driving on a revoked license. She also issued a traffic citation for careless driving. At that point, Ford released Everett from custody.

Notwithstanding Ford's lenience, the government filed a federal complaint against Everett and, in May 2008, he was indicted on one count of possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g). Everett moved to suppress the evidence and the statements obtained during the traffic stop. On July 14, 2008, the district court initially granted the motion, ruling that, in the absence of independent reasonable suspicion, Ford's questions on matters unrelated to the traffic stop rendered the stop unreasonable under the Fourth Amendment and that the shotgun was therefore " fruit of the poisonous tree." The government filed a motion for reconsideration, and on August 29, 2008, the district court vacated its prior order and denied Everett's suppression motion. Everett entered a conditional guilty plea, reserving the suppression issue for appeal. On January 8, 2009, the district court sentenced Everett to 36 months in prison.


" When reviewing a district court's decision on a motion to suppress, we use a mixed standard of review: we review findings of fact for clear error and conclusions of law de novo."

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United States v. See, 574 F.3d 309, 313 (6th Cir.2009). In particular, " [w]hether a seizure is reasonable under the Fourth Amendment is a question of law that we review de novo." United States v. Evans, 581 F.3d 333, 340 (6th Cir.2009). " When a district court has denied a motion to suppress, [we] review[ ] the evidence in the light most likely to support the district court's decision." United States v. Adams, 583 F.3d 457, 463 (6th Cir.2009) (internal quotation marks omitted).


Everett does not argue-nor could he-that the traffic stop was invalid at its outset. Even if Ford's decision to stop him for a traffic violation was a pretext to fish for evidence of other crimes, as the record suggests was the case, " the constitutional reasonableness of traffic stops [under the Fourth Amendment does not] depend[ ] on the actual motivations of the individual officers involved." Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Everett admits that he was speeding, and this alone is enough to render the stop lawful under the Fourth Amendment at its initiation.


Of course, " a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution." Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). We must therefore determine whether Ford's execution of the traffic stop complied with the standard for temporary detentions set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. See United States v. Hill, 195 F.3d 258, 264 (6th Cir.1999) (stating that " the principles announced in Terry v. Ohio apply to define the scope of reasonable police conduct" during traffic stops (internal citation omitted)).4

To qualify as reasonable seizures under the Fourth Amendment, Terry detentions must be " limited in [both] scope and duration." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); see also United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (stating that " length and intrusiveness" of a stop are relevant to Terry analysis). Under Terry 's duration prong, a stop " must ... last no longer than is necessary to effectuate the purpose of the stop." Royer, 460 U.S. at 500, 103 S.Ct. 1319. Under its scope prong, " the investigative methods employed should be the least intrusive means reasonably available

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to verify or dispel the officer's suspicion in a short period of time." Ibid.; see also United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (stating that stop must be " reasonably related in scope to the circumstances which justified the interference in the first place" ).

In this case, the district court initially concluded that Ford violated Terry 's scope prong by inquiring about weapons or narcotics in the absence of independent reasonable suspicion of a firearm or drug offense. At first blush, this conclusion has some appeal: arguably, questions about weapons or drugs are not " reasonably related ... to the circumstances which justified the [traffic stop] in the first place," Sharpe, 470 U.S. at 682, 105 S.Ct. 1568, and are not necessary to " verify ... the officer's suspicion" of a...

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