U.S. v. Ferguson

• Decision Date: 01 November 1993
• Docket Number: No. 91-6316,91-6316
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cecil FERGUSON, Defendant-Appellant. . Re
• Court: U.S. Court of Appeals — Sixth Circuit

Page 385

8 F.3d 385

62 USLW 2354

UNITED STATES of America, Plaintiff-Appellee, v. Cecil FERGUSON, Defendant-Appellant.

No. 91-6316.

United States Court of Appeals, Sixth Circuit.

Reargued June 16, 1993.

Decided Nov. 1, 1993.

Christopher E. Cotten, Asst. U.S. Atty. (argued and briefed), Memphis, TN, for plaintiff-appellee.

Eugene A. Laurenzi (argued and briefed), Agee, Allen, Godwin, Morris & Laurenzi, Memphis, TN, for defendant-appellant.

Before: MERRITT, Chief Judge; and KEITH, KENNEDY, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, Circuit Judges.

BATCHELDER, Circuit Judge.

Defendant Cecil Ferguson appeals the district court's denial of his motion to suppress a firearm and evidence of drug trafficking found, following a traffic stop, in a car in which he was a passenger. Ferguson argues that the district court erred in finding that the traffic stop was not unlawfully pretextual and in not suppressing the evidence because of the unlawful stop. For the reasons discussed below, we adopt a new test in this Circuit for determining when a traffic stop should be deemed unlawfully pretextual. Applying this test to the stop of defendant Ferguson, we AFFIRM the district court's denial of his motion to suppress.

I.

At 1:30 a.m. on October 18, 1990, police officer Ernie Writesman of the Memphis Police Department was making a routine check on the parking lot of the Royal Oaks Motel in Memphis, Tennessee, in a marked patrol car. As Writesman was talking to a security guard, defendant Ferguson pulled into the parking lot in a 1977 blue Lincoln. He was followed by Leonard Lester, who was driving a 1977 Ford. Ferguson and Lester parked opposite each other near room 203. Ferguson got out of the Lincoln and began walking down the sidewalk abutting a row of rooms, toward the back of the parking lot. As Ferguson approached Writesman and the security guard, the security guard asked Ferguson if he could help him. Ferguson said that he was looking for room 212. The guard gave Ferguson directions, and Ferguson proceeded on.

Officer Writesman then got into his patrol car and drove toward the front of the motel, passing by the Ford, which was still sitting in the parking lot. Writesman observed Lester, who was still in the Ford, lie down across the front seat of the car in an apparent attempt to hide. His suspicions aroused, Writesman went across the street and positioned his patrol car so that he could observe the two individuals.

Writesman saw Ferguson get into the Ford with Lester and drive to a spot in front of a room other than room 212. Ferguson went into room 410 and came out about five to seven minutes later. The two then drove back around to the Lincoln. Ferguson took a gray briefcase from the Lincoln and got back into the Ford, and the men drove back to room 410. Ferguson went back into room 410 with the briefcase, came out about two to five minutes later still carrying the briefcase, and got back into the Ford. The two left the parking lot and drove down the street, leaving the Lincoln behind.

Officer Writesman followed the Ford and upon noticing that there was no visible license plate on the car--a violation of a Memphis traffic ordinance--Writesman pulled the car over. Lester, who was driving, got out of the Ford and approached Writesman. Writesman first asked Lester for his driver's license, which Lester gave him, and then Writesman asked what the two men were doing. Lester explained that he had been at a motel with a young lady for about an hour, and he asked why Writesman was stopping him. The record does not reflect whether Writesman answered Lester's question. Apparently, Writesman did not ask about the license plate or issue any citation for failure to display a license plate, but instead put Lester into the back of his squad car and called for a back-up. After the back-up arrived, Writesman approached the Ford, where he saw Ferguson, still sitting in the passenger seat, with a .22 automatic pistol lying next to him on the front seat of the car. Writesman then arrested Ferguson. In searching the car and the briefcase incident to Ferguson's arrest, police found drug notes, plastic bags, scales with white powder on them, and a plastic bag containing envelopes of cocaine. It was not until later that Writesman discovered that the license plate for the car had been lying on the rear shelf of the car, although it was not visible from the outside of the car unless one were standing next to the rear window.

Ferguson was indicted by a grand jury for possession with intent to distribute about 33.5 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1), and carrying or using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). He filed a motion to suppress the firearm and the evidence of drug trafficking, claiming that the stop was pretextual and therefore illegal. At the hearing before a magistrate judge, Officer Writesman testified that the "number one" reason he stopped the car was because of the individuals' activity at the motel, although he stated that he also stopped it for the license plate violation. The magistrate judge recommended that the motion be denied, and the district court adopted the magistrate's recommendation over Ferguson's objections.

The district court found that Ferguson was seized when Officer Writesman pulled him over and that the activities observed by the officer at the motel were enough to support a stop and detention based on reasonable suspicion. The court also found that the stop was not pretextual, noting that a pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place in connection with an unrelated crime as to which they lack reasonable suspicion. The district court held that pretext must be determined through an objective assessment of the officer's actions and that this stop was not pretextual under either of the approaches that courts have employed to make this assessment. Under the first approach, Writesman was authorized to stop the vehicle for a license tag violation and had probable cause to believe that such a violation had occurred. Under the second approach, Writesman routinely stopped cars that did not have visible license plates, and there was no evidence that a reasonable officer would not have stopped the car. Therefore, it denied the motion to suppress.

The district court then accepted a negotiated plea agreement that permitted Ferguson to enter a conditional plea of guilty to the drug charge, while reserving the right to appeal the denial of his motion to suppress. Pursuant to the agreement, the government dismissed the firearm charge. Ferguson was sentenced to 168 months of imprisonment.

Ferguson appealed his conviction and sentence, and a panel of this Court reversed the conviction and vacated the sentence because it found that the traffic stop was unlawfully pretextual. We vacated the panel's decision in order to address en banc this issue: "Where an officer has probable cause to make a traffic stop, and also has motivations that are unrelated to the traffic stop such as an intent to investigate suspicious activity, may the stop be deemed unconstitutional because it is pretextual?" ¹

II.

A.

Whether a traffic stop violates the Fourth Amendment must be evaluated in the same manner as other alleged violations of that Amendment: by undertaking "an objective assessment of an officer's actions in light of the facts and circumstances then known to him. The language of the Amendment itself proscribes only 'unreasonable' searches and seizures." Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717, 1723 (1978). And "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Id. at 138, 98 S.Ct. at 1723.

The circuits have generally taken two approaches to the required objective assessment of the officer's actions. One of those approaches, commonly referred to as the "would" test, requires a determination of "whether a reasonable officer would have made the seizure in the absence of illegitimate motivation." United States v. Smith, 799 F.2d 704, 708 (11th Cir.1986). The Tenth Circuit has followed the lead of the Eleventh Circuit and adopted the "would" test, holding that Smith 's reasoning that a court should ask

"not whether the officer could validly have made the stop, but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose" ... properly preserves the Supreme Court's requirement of an objective inquiry into Fourth Amendment activity and provides meaningful judicial review of discretionary police action.

United States v. Guzman, 864 F.2d 1512, 1517 (10th Cir.1988) (citations omitted) (quoting Smith, 799 F.2d at 709).

The courts that use the "would" test have held that the officer's subjective intent is not relevant to the objective assessment of his actions. These courts have found relevant to that assessment such factors as the kind of duty the arresting officer was on at the time he made the stop; the words and actions of the officer both before and after he made the stop, see Smith, 799 F.2d at 710 ("[W]e ... therefore are not concerned with [the officer's] subjective intent.... What turns this case is the overwhelming objective evidence that [the officer] had no interest in investigating possible drunk driving charges: he began pursuit before he observed any 'weaving' and, even after he stopped the car he made no investigation of the possibility of intoxication."); and the general police practice or routine for enforcing the violation for which the stop was made, see Guzman, 864 F.2d at 1518 ("If police officers in New Mexico are...