U.S. v. Ferguson

• Decision Date: 19 March 1993
• Docket Number: No. 91-6316,91-6316
• Citation: 989 F.2d 202
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cecil R. FERGUSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 202

989 F.2d 202

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

No. 91-6316.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 1, 1992.

Decided and Filed March 19, 1993.

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

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

Before: KEITH, JONES, and BOGGS, Circuit Judges.

KEITH, Circuit Judge.

Appellant, Cecil R. Ferguson, appeals his conviction and sentence for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). For the foregoing reasons, we REVERSE appellant's conviction and VACATE his sentence.

I.

At approximately 1:30 a.m. on October 18, 1990, Officer Ernie Writesman was on routine patrol at the Royal Oaks Motel parking lot in Memphis, Tennessee. While talking with the motel's security guard and conducting a security check, Writesman observed Ferguson drive into the parking lot in a 1977 Lincoln. Ferguson was followed by Leonard Lester, who was driving a 1977 Ford.

Writesman observed Ferguson and Lester park their cars opposite one another near room 203. Ferguson then got out of his car and walked towards Writesman and the guard. The guard asked Ferguson if he could help him. Ferguson replied that he was looking for room 212 to return the Lincoln which he had borrowed earlier. After getting directions from the guard, Ferguson proceeded back towards his vehicle. Having overheard the conversation between Ferguson and the guard, Writesman drove towards the front of the motel where he saw Lester lay down across the front seat of the Ford. Suspicious of Ferguson and Lester, Writesman drove across the street where he could observe them undetected.

Writesman observed Ferguson get into the Ford with Lester. Lester drove to a position near room 410. Ferguson entered the room and in a few minutes came out and got back in the Ford. The two men then drove to the Lincoln, where Ferguson retrieved a grey briefcase. Ferguson got back into the Ford, and he and Lester again drove to room 410. Ferguson entered the room with the briefcase and in a few minutes returned, still carrying the briefcase. Ferguson then got back into the Ford with Lester and they left the motel parking lot heading east on Summer avenue. Having observed this activity, Writesman followed the men and pulled them over when he noticed, for the first time, that Lester's Ford had no visible license plate.

Upon stopping the Ford, Lester got out of the vehicle and walked over to Writesman, who asked Lester for his driver's license. Writesman asked Lester "what he was up to" and Lester stated that he had been at the motel with a woman. Writesman then placed Lester in the back seat of the police car and called for assistance. As Writesman was waiting for backup, Ferguson remained in the front seat of the Ford. Once his backup arrived, Writesman approached the Ford and observed a .22 caliber pistol laying on the front seat. Writesman also noticed a plastic bag in the vehicle containing several envelopes, the contents of which were later identified as cocaine. Ferguson, who was sitting in the front seat holding a briefcase, was then placed under arrest. A search of the briefcase revealed zip-lock plastic bags, scales, and what are apparently drug notes.

The government contends that Writesman stopped Lester's vehicle because it had no visible license plate, which is a violation of Memphis City Ordinance 21-269. When asked at the suppression hearing why he stopped the vehicle, Writesman stated: "There were a couple of reasons why I stopped it. Number one was the activity that I just observed at the Royal Oak Motel. And then the fact that it had no license plate on it that could be seen." (App. at 66). Although Writesman stated that one of the reasons he stopped the vehicle was because it had no visible license plate, while on the scene of the stop, he made no inquiry or investigation concerning the absence of a visible license plate on the Ford, nor did he give Lester a citation for having no visible license plate. It was not until Writesman reviewed photographs from the scene of the stop that he learned that there was a drive out tag lying on the shelf of the rear window of the Ford.

Ferguson and Lester were charged with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. They were also charged with carrying and using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Ferguson filed a motion to suppress the evidence seized during his arrest, alleging that the stop and search of the Ford was "pretextual, unreasonable and illegal," in that no probable cause existed for the stop. (App. at 6). This motion was heard by a magistrate who concluded that the stop and search was based on a reasonable suspicion and was not pretextual. The magistrate's recommendation was adopted by the district court.

Pursuant to a negotiated plea agreement, Ferguson pled guilty to the drug offense and the government dismissed the weapons charge. Ferguson reserved the right to appeal the denial of his motion to suppress. At sentencing, the court refused to consider Ferguson's challenge to the validity of two prior state felony convictions used to categorize him as a career offender under the Sentencing Guidelines. On appeal, Ferguson argues that the court erred in denying his motion to suppress and in categorizing him as a career offender. Each of these issues are discussed below.

II.

Ferguson contends that his Fourth Amendment right against unreasonable searches and seizures was violated because Officer Writesman's stop and search of Lester's vehicle was unreasonably pretextual. Specifically, Ferguson argues that the absence of a visible license plate on the Ford served as a pretext to stop and search the vehicle for drugs. The district court, however, found that the stop was based on probable cause and was not pretextual. We must review the district court's findings of fact as to Ferguson's motion to suppress under the clearly erroneous standard. United States v. Duncan, 918 F.2d 647, 650 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2055, 114 L.Ed.2d 461 (1991).

Ferguson argues that the weapon and drugs seized as a result of the stop should not have been admitted into evidence against him. See Wong Sun v. United States, 371 U.S. 471, 486-87, 83 S.Ct. 407, 416-17, 9 L.Ed.2d 441 (1963) (Court suppressed the use of narcotics discovered as a result of illegal police activity as "fruit of the poisonous tree"). This Circuit's standard for determining when a police investigatory stop is illegally pretextual is explained in United States v. Pino, 855 F.2d 357, 361 (6th Cir.1988), cert. denied, 493 U.S. 1090, 110 S.Ct. 1160, 107 L.Ed.2d 1063 (1990). In Pino, we adopted the Eleventh Circuit's analysis regarding pretextual stops, applying the reasoning of United States v. Smith, 799 F.2d 704 (11th Cir.1986). In Smith, the Eleventh Circuit wrote:

[T]hat in determining when an investigatory stop is unreasonably pretextual, the proper inquiry ... is 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.

799 F.2d at 709 (emphasis in original). We note that the "reasonable officer" standard articulated in Smith and adopted by this Court in Pino is the controlling standard in this Circuit regarding pretextual stops. Pino, 855 F.2d at 361; see also United States v. Crotinger, 928 F.2d 203, 206 (6th Cir.1991).

In Smith, a Florida Highway Trooper and a Drug Enforcement Agent followed two men traveling on Interstate 95 in a 1985 Mercury. The Trooper testified that they followed the vehicle because the men matched a drug courier profile. According to the Trooper, they followed the vehicle for about a mile and a half and pulled the vehicle over when they noticed the vehicle start to weave. After stopping the men, the Trooper questioned the driver about the ownership of the vehicle and also called for a drug dog to sniff the vehicle for drugs. With the assistance of the dog, the officers discovered cocaine in the trunk of the vehicle. The two men were arrested and charged with cocaine possession and conspiracy to distribute. They filed motions to suppress the cocaine found in their trunk, alleging that the stop of their vehicle was unreasonable. The trial court ruled that the stop was legal.

On appeal, the Eleventh Circuit wrote that "[t]he stop was unreasonable not because the officer secretly hoped to find evidence of a greater offense, but because it was clear that an officer would have been uninterested in pursuing the lesser offense absent that hope." 799 F.2d at 710. In analyzing the objective evidence in the case, the court noted that:

[W]hat turns this case is the overwhelming objective evidence that [Agent] Vogel 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.... Based on this objective evidence, we conclude that a reasonable officer would not have stopped the car absent an additional, invalid purpose.

799 F.2d at 710-11. We think that the investigatory stop at issue in the instant case is disturbingly similar to the stop that was found to be pretextual in Smith.

In this case, Officer Writesman began his pursuit of Ferguson and Lester before he noticed that Lester's vehicle had no visible license plate. Writesman became suspicious of the two men when he saw Lester lay down across the front seat of the Ford, shortly after overhearing Ferguson's conversation with the guard. Writesman positioned himself across...