IN THE YMCA YOUTH SUPREME COURT

OF THE STATE OF YMCA  

   

STATE OF YMCA,      

vs.  

 JACK FEELGOOD,

Plaintiff-Respondent, Case No. 2016-02

 Defendant-Appellant.

 

         

FACTS  

While setting up a speed trap, Deputy John Lexus observed a Cadillac driven by Dr. Jack Feelgood. The minute the Cadillac passed by his patrol car, Deputy Lexus saw Dr. Feelgood "tense up" and stare rigidly forward at the road ahead. As a result, Deputy Lexus felt "something was up" and began following Dr. Feelgood. Deputy Lexus noticed Dr. Feelgood repeatedly looking in the rear view mirror to see if Deputy Lexus was still following him. However, Dr. Feelgood never exceeded the applicable speed limit and obeyed all traffic signals.  

After following for about fifteen minutes, Dr. Feelgood began traveling on a four lane road. At some point, Dr. Feelgood changed lanes without using his turn signal. In a later hearing on Dr. Feelgood’s motion to suppress, Deputy Lexus admitted that although the failure to signal is an offense under the YMCA traffic code, ordinarily it would not be the basis for a traffic stop.  

Nevertheless, Deputy Lexus immediately turned on his lights and signaled for the Cadillac to pull to the side of the road. While asking Dr. Feelgood for his license and registration, Deputy Lexus noticed what appeared to be a ziplock bag protruding from the crack between the top and bottom half of the passenger seat. Deputy Lexus asked Dr. Feelgood for permission to search the vehicle. Dr. Feelgood responded, "whatever," and got out of the Cadillac. The search uncovered a ziplock bag containing cocaine, whereupon Deputy Lexus placed Dr. Feelgood under arrest.  

Dr. Feelgood was charged with possession of a controlled substance. Before the trial court, Dr. Feelgood moved to suppress all evidence resulting from the traffic stop. Dr. Feelgood argued that the traffic stop violated his Fourth Amendment right against unreasonable search and seizures. He argued that the traffic stop was pretextual, i.e., done so as to allow for the opportunity to conduct an investigatory search of his vehicle.

1:\JRS\YMCA\2016 Moot Court Prob1erns\2016-02 JACK FEELGOOD .doc

 

The District Court rejected Dr. Feelgood's arguments. Relying on United States v. Cummins, 920 F.2d 498 (81 Cir. 1990), the District Court reasoned a traffic stop is not pretextual if a police officer could validly make the stop. In this case, Deputy Lexus observed Dr. Feelgood change lanes without signaling. Since the failure to signal is a violation of YMCA's traffic code, Deputy Lexus' decision to pull Dr. Feelgood over could not be pretextual.  

Dr. Feelgood appealed to the YMCA Supreme Court. He argues that the proper inquiry is that adopted by United States v. Valdez, 931 F.2d 1448 (11111 Cir. 1991), wherein the focus is not on whether a police officer could make the stop, but rather if a reasonable police officer would make the stop. Since Deputy Lexus testified that he would not ordinarily make a traffic stop based on the failure to signal, the traffic stop was pretextual.  

ISSUE ON APPEAL  

Is a traffic stop which a police officer could make, but would not ordinarily make, violative of the Fourth Amendment's protections against unreasonable search and seizure?  

The Attorney General for the State of YMCA's position is that the stop and search were reasonable and should be upheld.

Jeff R. Sykes  

Questioned As of: February 8, 2016 6:20PM EST

 United States v. Valdez

 United States Court of Appeals for the Eleventh Circuit

May 22, 1991

No. 90-5126  

Reporter 931 F.2d 1448; 1991 U.S. App. LEXIS 10266

 UNITED STATES of America, Plaintiff-Appellee, v. Jesus I. VALDEZ, Defendant-Appellant  

Prior History: [**1] Appeal from the United States District Court for the Southern District of Florida. No. 89-322-CR-TES; Scott, Judge.

 Disposition: Reversed and Remanded.  Core Terms

   

consent to search, traffic, district court, pretextual, narcotics, circumstances, bags, traffic stop, trunk, driver, patrol  Case Summary

   

Procedural Posture  

Defendant appealed the decision of the United States District Court for the Southern District of Florida, that held that the traffic stop of defendant was objectively justified and not pretextual and defendant's consent to search his car after that stop was voluntary.  

Overview  

Defendant was stopped by a traffic officer for violating a road right-of-way. The officer then asked defendant if he could search his car. Defendant consented and cocaine was found in the trunk. The district court upheld the stop as a valid enforcement of the traffic laws and held that the consent to search was voluntarily given. The court reversed the district court's decision. The court held that the traffic officer would not have pursued defendant and issued a citation in the absence of instructions that the narcotics unit wanted the car stopped. Therefore, the court held that the stop was unreasonably pretextual and unconstitutional. The court held that defendant's consent to search his car was tainted by the illegal

     

pretextual stop and detention and therefore was not voluntary. The court held that the officer had no reason connected with the traffic stop itself to ask for permission to search the car. The court held that, although the officer informed defendant he did not have to consent, the court concluded that that factor alone was not determinative of voluntariness.  

Outcome  

The court reversed the district court's decision that held that the traffic stop of defendant was objectively justified and not pretextual and defendant's consent to search his car after that stop was voluntary. The court held that the stop was unreasonably pretextual because the officer would not have pursued defendant except that the narcotics unit wanted the car stopped. The search was tainted by the illegal stop and was not voluntary.  LexisNexis® Headnotes

   

Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Investigative Stops

 HN1 In determining when an investigatory stop is unreasonably pretextual, the proper inquiry, again, 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.  

Criminal Law & Procedure > ... > Warrantless Searches > Consent to Search > Sufficiency & Voluntariness

 Criminal Law & Procedure > ... > Standards of Review > Clearly Erroneous Review > General Overview

 Criminal Law & Procedure > ... > Standards of Review > Clearly Erroneous Review > Search & Seizure

 HN2 Determinations by a district court with regard to voluntariness of consent to search, while entitled to

Jeff R. Sykes  

 

 931 F.2d 1448, *1448; 1991 U.S. App. LEXIS 10266, **1

Page 2 of 5

 great deference by a reviewing appellate court, must still be overturned if clearly erroneous.

 Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Consent to Search

 Criminal Law & Procedure > ... > Warrantless Searches > Consent to Search > Sufficiency & Voluntariness

 HN3 In order to eliminate any taint from an involuntary seizure or arrest, there must be proof that the consent was voluntary and that it was not the product of the illegal detention. Among the relevant factors are the temporal proximity of an illegal arrest and confession, intervening circumstances, and the purpose and flagrancy of the official misconduct.

Counsel: Philip M. Gerson, Miami, Florida for Appellant.

Dexter W. Lehtinen, Linda C. Hertz, AUSA, Dawn Bowen, AUSA, Terry Lindsey, AUSA, Miami, Florida for Appellee.  

Judges: Tjoflat, Chief Judge, Clark, Circuit Judge, and Frank A. Kaufman, •

 Opinion by: KAUFMAN  Opinion  

[*1448] KAUFMAN, Senior District Judge  

Once again, as in l)nfltt<l $t?ff:}$ . V, _Mi/l flt, f!21 E,'?,q_§4_9 (J 1th Cir. 19811. and !lnJted _ '144 1 States v. Smith. 799 F.2d 704 (11th Cir. "/986) , "the issue in this case is whether the stop of appellant['s] vehicle was reasonable under the fourth amendment." Smith at 705. The district court upheld the stop as a valid enforcement of the traffic laws. We disagree and reverse. However, we also remand to the district court to determine whether there was or was not probable cause to stop appellant's vehicle and to search it for narcotics for reasons unconnected with the traffic stop.

Police Department conducted surveillance of a residence located in Miami, Florida. Fro.m an unmarked police car Houck observed appellant Valdez arrive in [**2] front of the residence in a Honda Accord. Valdez exited the Honda, knocked on the front door of the residence and was admitted inside. Shortly thereafter, two other men, subsequently identified as Jose Fernandez and Jorge Fernandez, Valdez's co-defendants in the proceeding below, 1 exited the house, moved two cars parked in its yard, and then moved the Honda so that the trunk of the Honda was in close proximity to the front door of the residence. The two men opened the Honda's trunk, reentered the residence and came out within the next few minutes carrying plastic garbage bags, which, Houck noted, appeared to be fairly heavy. The two men placed the garbage bags in the trunk of the Honda, reentered the residence and very quickly left the residence again, carrying additional bags which they also placed in the trunk. Shortly thereafter, Valdez came out of the residence, got into the Honda and drove away.  

Detective Trujillo, the lead investigator of the Dade County narcotics [**3] team, of which Houck and Hills were members, monitored the police radio from another location for information from Houck and Hills about events occurring at the residence. Trujillo was joined by Officer Almaguer, a uniformed Metro patrol officer who was dispatched by Trujillo to assist the narcotics investigation team. Trujillo testified in the court below, in a hearing involving Valdez's motion to suppress the fruits of a search by Almaguer of the Honda, that he advised Almaguer that:  

We were conducting an investigation and we had a vehicle we wished for him to follow, and if that person was to commit a traffic infraction which he normally cites somebody for, we wished for him to stop the vehicle.

 If that occurred, and he did stop the vehicle, I wanted him to ask the occupant of the vehicle for consent to search the vehicle, and I instructed him

2

I.  

On the afternoon of May 8, 1989, Detective Houck and Special Agent Hills of the Metropolitan Dade County

to ask him if he would consent to a search.  

However, Almaguer testified during the suppression hearing that he did not recall Trujillo's qualification [**4]

 

Honorable Frank A. Kaufman, Senior U.S. District Judge for the District of Maryland, sitting by designation .  

1 Neither Fernandez is a party to this appeal.  

2 Transcript at 14.

Jeff R. Sykes  

 

 931 F.2d 1448, *1449; 1991 U.S.App . LEXIS 10266, **4

Page 3 of 5

 that he (Almaguer) had been directed to stop the Honda only for something which constituted the kind of traffic offense for which he would ordinarily stop a driver.

Over the police radio Houck provided Trujillo with a description and the tag number of the Honda and reported when Valdez drove away from the residence. Houck left his surveillance position at the residence and followed the Honda to 122nd Avenue where he confirmed thatTrujillo had correctly identified the Honda. As Valdez approached the intersection of 8th Street and 122nd Avenue, Trujillo was positioned across that intersection with Almaguer in a patrol car directly behind him. The Honda made a right turn against a red traffic light signal. As or immediately after Valdez made that turn, another automobile, travelling from the left of the spot at which Valdez made his turn, slowed down abruptly in order to avoid a collision with Valdez's car. Both Trujillo and Almaguer testified that they observed Valdez violate the right-of-way of that other automobile. However, neither officer was able to state the speed at which that other vehicle was travelling before it so slowed down, nor did [*1450) either Trujillo or Almaguer hear any [**5) screeching of the tires of that car.

After the Honda turned right, Trujillo informed Almaguer that the driver of that vehicle was the subject of the narcotics investigation being then conducted. Almaguer followed the Honda eighteen blocks from the intersection at which the traffic violation had occurred and then stopped it. Trujillo , parked two blocks away from the point of that stop , observed Almaguer conduct the stop. Almaguer approached Valdez and asked for Valdez's driver's license and registration. Valdez produced his driver's license and explained that a friend had loaned the car to him. The conversation was in Spanish. Almaguer next asked Valdez whether he was aware of why Almaguer had stopped him, to which question Valdez answered "yes." Almaguer testified that he asked Valdez for permission to search the car and Valdez consented . After searching the interior of the car, Almaguer found five sealed trash bags inside the trunk, and asked Valdez what was inside the bags. Valdez replied that it was cocaine. Almaguer then placed Valdez under arrest, handcuffed him, and placed Valdez in the back of Almaguer's patrol car until Trujillo arrived on the scene. Almaguer issued Valdez [**6] a citation for violation of the right-of-way. Thereafter, Trujillo advised Valdez of his Miranda rights.

During the suppression hearing in the district court, Almaguer stated that but for Trujillo's instructions that the Honda was the car which the narcotics unit wanted stopped, he (Almaguer) would not have pursued the car and issued the traffic citation . Almaguer also testified that he ordinarily did not search a vehicle for a violation of a right-of-way, or even ask its driver for his consent to search and that, based solely on the traffic violation which he had observed, he had no reason to ask permission to search Valdez's car.

 II.

 The district court concluded that the traffic stop was objectively justified and was not pretextual. When a defendant raises such a claim of pretextuality, "the proper inquiry is whether a reasonable officer would have made the seizure in the absence of illegitimate motivation," Smith at 708 (emphasis in original), and requires "'an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' and not on the officer's actual state of mind at the time of the challenged action taken." [**7] LcLat 709, quoting Marvland v. Macon. 4 72 U.S, 463, 470-71, 105 S. Ct. 2778, 2782-83, 86 L. Ed. 2d 370. HN1"1n determining when an investigatory stop is unreasonably pretextual, the proper inquiry, again, 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." Smith at 709 (emphasis in original), citing and relying upon United0Jes_J!:. Cruz.__ }58 1 F2d 535 (5th Cir._ 1978). (en bane), as a binding precedent. 3 As to Cruz, Judge Kravitch wrote in Smith that "the stop [in Cruz] 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." /d . at 710.

 [**8] In Smith, a Florida State Trooper, concluding that

Smith's car matched a drug courier profile, followed the car for about a mile and a half, observed it cross over six inches into the emergency lane, and stopped it. In rejecting the government's contentions that, pursuant to Terry v. Ohio, 392 U.S. 1. 88 S. Ct. 1868, 20 L. Ed. 2d E}.§.fl (lfl_Q_B), the officer validly made the stop because of reckless driving or failure to change lanes safely, this

 

3 In Smith at 7 10 n. 8, this Court, in considering itself bound by Cruz, noted that "in Bonner v._CitvofPricllard, 661 F.2d 1206, 1209 (111h Cir. 1981) (en bane), this circuit adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981."

Jeff R. Sykes  

 931 F.2d 1448, *1450; 1991 U.S. App . LEXIS 10266, **8

Page 4 of 5

 court noted that the deviation from the lane was about six inches, that only slight "weaving" within a single lane was involved, that the officer had no interest in investigating possible drunk driving, and that before the officer observed any traffic violation, he had instituted [*1451] the pursuit because of his thoughts concerning drug involvement. In this case, also, it was the officers' interest in drug matters which brought about the surveillance of the residence and the trailing of the Honda.

 

In United States v. Miller. 821 F.2d 546 ( 11th Cil: 1987), "the facts ...are nearly identical to those in [Smith]." /d. f1Lf24§. In Miller, the same Florida officer [**9] who was involved in Smith testified that he would have made the stop regardless of whether there had been a traffic violation. Judge Clark, writing for this court, reversed the district court's denial of Miller's motion to suppress, concluding that the stop had been made due to the officer's hope of catching a drug courier and not because Miller had momentarily strayed a few inches over the white line, and that, therefore, the stop was pretextual.

 In reaching its conclusion that the stop in this case was objectively justified and not pretextual, the court below stated that "the uniformed patrol officer was charged with enforcing Florida traffic laws,'. . . and this Court can presume no less than that a patrol officer would obey this mandate,"' quoting United Slates v. Bales, 840£_2 d 858, @{11tll Cir. 19881. However, in Bates, the officer testified that it was his practice to stop cars for following too closely and that he had made the traffic stop and had issued the citation for that reason. By way of contrast, in this case, we note again that Almaguer testified that he would not have pursued Valdez and issued a citation in the absence of Trujillo's [**10] instructions that the narcotics unit wanted the car stopped, and that Almaguer did not recall Trujillo's instruction that a traffic stop should be made only for the kind of offense for which Almaguer would normally stop a motorist. Considered in that context, we conclude that the objective evidence reveals that Trujillo and Almaguer would have been uninterested in pursuing Valdez' violation of the right-of-way absent their hope of finding evidence of violation of the narcotics laws. Accordingly, we hold that the stop in this case was unreasonably pretextual and unconstitutional.

Ill.  

There remains the question of whether Almaguer's search of the car can nevertheless be sustained as one to which Valdez voluntarily consented. The district court held that the traffic stop was not pretextual. In addition, the district court concluded, applying the standard that "'voluntariness [of consent] is a question of fact to be determined from all the circumstances' when evaluating the validity of a consent to search," United States v. Garcia, 890 F.2d 355. 358 (11th Cir. 1989), citing and quoting Schneck loth v. Bustama nte, 412 U.S. 218, 248 -49 , 93 S. Ct. 2041. 2058-59 . 36 L. Ed . 2d 854 (1973), [**11] that Valdez freely consented to the search of the

vehicle, including the trunk, and also voluntarily commented, in answer to Almaguer's question, concerning the contents of the bags. Such HN2 determinations by a district court with regard to voluntariness of consent to search, while entitled to great deference by a reviewing appellate court, must still be overturned if clearly erroneous. See G.f1r ciC!_9_t 359; United States v. Aleqrja, 721 F.2d 758, 761 (11th Clr._12?)J.

 In this case, the only evidence in the record before us pertaining to the issue of voluntariness of Valdez's consent is the testimony of Almaguer. 4 In an instance in which "the decision the district court made was based solely on the circumstances described through uncontradicted testimony of the agents whose credibility was unquestioned, we believe that we are in as good a position as the district court to apply the law to the uncontroverted facts. See United States v. Rioseco. 845 F,2d 299. 302 (11111 Cir. 1988) ('We give plenary review [*1452] to the application of law to the facts') ." Garcia, 890 F.2d at 360 n. 5. Accordingly , we review de novo the district court's [**12] determination of voluntariness of Valdez's consent to search.

 In l)JJff@c:/ t<:JJfo!:;; \{_ $@r . fJZQFZq_ f?§:;u!5th _ Q!c_1fJ?!?J (en bane), Judge Johnson wrote that HN3 "in order to eliminate any taint from an involuntary seizure or arrest, there must be proof that the consent was voluntary and that it was not the product of the illegal detention. Among the [relevant] factors ... are the temporal proximity of an illegal arrest and confession, intervening circumstances, and the purpose and flagrancy of the

 4 In that regard, the trial judge stated : "Almaguer asked for permission to search the vehicle. No pressure was applied . No weapons were displayed. The conversation was in Spanish. Valdez consented and handed Almaguer the keys. When the officer opened the trunk, he observed five trash bags that were sealed. I asked him what was inside the bags and he told me it was, that it was cocaine." Almaguer was the only officer present when consent was requested.

Jeff R. Sykes  

 

 931 F.2d 1448, *1452; 1991 U.S. App. LEXIS 10266, **12

Page 5 of 5

 

official misconduct." !d. at 604-05 [**13] (footnote omitted) (citations omitted). Holding that the consent to search in Berry was voluntary, Judge Johnson emphasized (at 605) that despite the "temporal proximity" of the request and the consent, there were substantial intervening circumstances, including, that the defendants were told that they were free to refuse consent to search and that they could consult with an attorney. However, in Berry, the "critical considerations [were] that appellants were allowed to consult with each other" and that the officer "invited [the defendants] to use a telephone when [one defendant] indicated that she might want to contact an attorney." ld. at 605.

 Judge Clark applied the Berry standard in Miller . 821 F2d at 549, in assessing the issue of whether there existed a voluntary consent to search following an illegal traffic stop. In Miller, the officer requested the defendant's consent to search the vehicle almost immediately upon the stop. Although the consent form signed by Miller indicated that it was voluntary, Judge Clark noted that the extent to which the officer emphasized Miller's right to withhold consent was unclear. Referring [**14] ( !cl....?t f1!1Q) to the Supreme Court's recognition that "a traffic stop is an 'unsettling show of authority' that may 'create substantial anxiety,"' Delaware v. Prouse. 440 U._S. 648. 657, 99 S. Ct. 1391. J J!..?U5_fJ.. L. Ed. 2d 660 (1979), Judge Clark concluded in Miller that "there were insufficient intervening circumstances that might have reduced the coercive nature of the stop and permitted [Miller] to make a voluntary decision about the consent to search."

 Applying the standard of Miller and Berry in this case, we hold that Valdez's consent was tainted by the illegal pretextual stop and detention. Herein, immediately after

 

requesting to see Valdez's driver's license and then asking whether Valdez was aware of why he had been stopped, Almaguer asked Valdez for the latter's consent to search the Honda, informing Valdez that Valdez did not have so to consent. While such an admonishment was recognized in Berry as a factor indicating that the taint from the illegal detention was attenuated, we conclude that that factor alone is not determinative. Unlike the defendants in Berry, Valdez was not afforded an opportunity [**15] to consult with an attorney; nor was he given by Almaguer any appreciable time in which to reflect upon whether to give or not to give his consent to search the vehicle. While the actions of the police in this case can certainly not be described as flagrantly unconstitutional conduct, it is clear, as Almaguer himself has stated, that he had no reason connected with the traffic stop itself to ask Valdez for permission to search the Honda.  

IV.  

Under the circumstances of this case, we hold that the stop of Valdez was pretextual and that Valdez's consent to search was not voluntary. Accordingly, we reverse. However, a remand is also required in order for the district court to decide whether there was or was not probable cause for one of the police officers involved in the narcotics investigation to stop Valdez for violation of the narcotics laws in connection with what Houck and Hills observed during their surveillance ofthe residence. It may be that such probable cause was present. As to that possibility, we express no view.  

REVERSED AND REMANDED .

Jeff R. Sykes  

Questioned As of: February 9, 201612 :44 PM EST

   

United States v. Cumm ins  

United States Court of Appeals for the Eighth Circuit

August 29, 1990, Submitted ; November 30, 1990, Filed

Nos. 90-1050, 90-1199  

Reporter 920 F.2d 498 ; 1990 U.S. App . LEXIS 20838

 United States of America , Appellee, v. Gregory Lynn Cummins, Appellant. United States of America, Appellee, v. Timothy Akins, a/k/a Michael Mayfield, Appellant

 Subsequent History: Petition for Rehearing and Suggestion for Rehearing En Bane Denied January 17, 1991, Reported at 1991 U.S_ APP. LEXIS 782.

 Prior History: [**1] Appeal from the United States District Court for the Eastern District of Arkansas . Honorable Elsijane T. Roy.

 Disposition: Affirmed .

 Core Terms

   

suppress , suspicions, officer's, traffic , Street, arrest, traffic violation, passenger's, marijuana, inventory search, passenger compartment, initial stop , circumstances, pretextual , driver, signal

 Case Summary

   

Procedural Posture  

Defendants appealed the order of the United States District Court for the Eastern District of Arkansas, which denied defendants' motions to suppress evidence seized during searches of automobiles in two separate traffic incidents in the government's action regarding drug trafficking and firearm offenses.  

Overview  

Defendants filed a motion to suppress evidence seized by the police during two separate traffic incidents. The magistrate found that the officer had a reasonable and objective basis for making the initial stop and that the resulting searches were proper. The magistrate also

     

denied the motion to suppress evidence seized during the inventory search. The district court adopted the magistrate's findings and denied the motions. On appeal, the court affirmed the district court's denial because the officer had a legitimate reason, a traffic violation, for stopping defendants' car. The totality of the circumstances known to the officer met the requisite level of reasonable suspicion and entitled him to detain the defendants until he had satisfied his suspicions . Once reasonable suspicion was established, the officer's search of the passenger compartment with a flashlight was justified, and the marijuana was not subject to suppression. Upon discovering the marijuana, the officer had probable cause to place defendants under arrest, and the subsequent search of the automobile was permissible. Further, the court affirmed the denial of the evidence seized during the inventory search.  

Outcome  

The court affirmed the decision of the district court that denied defendants' motions to suppress.  LexisNexis® Headnotes

   

Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Investigative Stops

 HN1 When an officer observes a traffic offense, however minor, he has probable cause to stop the driver of the vehicle. An otherwise valid stop does not become unreasonable merely because the officer has intuitive suspicions that the occupants of the car are engaged in some sort of criminal activity. The stop remains valid even if the officer would have ignored the traffic violation but for his other suspicions . An appellate court is to make an objective assessment of the officer's actions .  

Constitutional Law> ... > Fundamental Rights > Search & Seizure > Scope of Protection

Jeff R. Sykes  

 920 F.2d 498, *498; 1990 U.S. App . LEXIS 20838, **1

Page 2 of 5

 HN2 The fact that an 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. The officer's actual state of mind at the time the challenged action was taken is of no significance in determining whether a violation of the Fowth Amendment has occurred .

 Constitutional Law > ... > Fundamental Rights > Search & Seizure > Scope of Protection

 HN3 So long as the police are doing no more than they are legally permitted and objectively authorized to so, a resulting stop or arrest is constitutional.

 Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Investigative Stops

 HN4 When an initial stop is lawful, the question is whether the resulting detention is reasonably related in scope to the circumstances which justified the interference in the first place.  

Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Vehicle Searches

 HN5 Because investigative detentions involving suspects in vehicles are especially fraught with danger to police officers, once reasonable suspicion is established, a limited search of an automobile's interior is permissible. This limited search is no less permissible where the occupants have been removed from the automobile before the search is made.  

Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Inventory Searches

 HN6 An inventory search is upheld unless there is a showing that the police failed to follow standard procedures, acted in bad faith, or conducted a search for the sole purpose of investigation.  

Counsel: Counsel who presented argument on behalf of the Appellants were Mr. Craig Lambert, Little Rock, Arkansas, for Cummins and Mr. Robert Adcock, Little Rock, Arkansas, for Akins.

Counsel who presented argument on behalf of the Appellee was Mr. Patrick Harris, Assistant U.S. Attorney, Little Rock, Arkansas.

 Judges: McMillian, Bowman, Circuit Judges, and Cahill,

     

Opinion by: BOWMAN  

Opinion  

[*499] BOWMAN, Circuit Judge  

Defendants Gregory Lynn Cummins and Timothy Akins appeal the denial by the District Court 1 of their motions to suppress evidence seized during searches of automobiles in two separate traffic incidents. Both defendants entered a conditional plea of guilty to drug trafficking and firearm offenses reserving the right to appeal the denial of their motions to suppress. We affirm.

 [**2] I.

 The first traffic incident in question involved both Cummins and Akins. On November 10, 1988, at approximately 11:40 p.m., the unusual behavior of occupants of a 1974 green Volkswagen caught the attention of Officer Dan Bernal, a seven-year veteran of the Little Rock Police Department. Bernal, who was patrolling east on Sixth Street, was stopped for a red light at the intersection of Bond and Sixth in Little Rock, Arkansas. The Volkswagen, northbound on Bond Street, remained at a standstill despite the green light signalling it to proceed. Rather than proceeding, the driver (Cummins), along with his passenger (Akins), kept glancing at Bernal. Not until the signal changed to red for the Bond Street traffic did Cummins finally proceed by turning right onto Sixth Street. These actions aroused Bernal's suspicions and he began to follow the car. For several blocks along Sixth Street, Cummins and Akins continued glancing over their shoulders at Officer Bernal, who was maintaining a distance of approximately four car-lengths behind them. This surveillance-in-motion came to a momentary halt when the Volkswagen turned off Sixth Street into a closed car wash. Cummins and Akins then continued [**3] to watch Bernal, who had pulled into a service station

 

The Honorable Clyde S. Cahill, United States District Judge for the Eastern District of Missouri, sitting by designation .  

1 The Honorable Elsijane T. Roy, Senior United States District Judge for the Eastern District of Arkansas.

Jeff R. Sykes  

 920 F.2d 498, *499; 1990 U.S. App. LEXIS 20838, **3

Page 3 of 5

 across the street. When the Volkswagen left the car wash and continued east on Sixth Street, Bernal followed it. At the intersection of Sixth and Corning, Cummins made a right turn without giving a signal. Observing this traffic violation, Bernal immediately turned on his bluelights. Cummins stopped, got out of the Volkswagen, and approached Bernal as he was getting out of the police car.

 After explaining the reason for the stop and obtaining Cummins' license, Bernal asked Cummins to explain his unusual behavior. Cummins replied that he had been distracted by his passenger's conversation [*500] about "girlfriend problems" and said the passenger's name was "Tim." Cummins appeared very nervous throughout this exchange. After calling the police department for a license and vehicle check, Bernal walked over to the Volkswagen and asked the passenger for his name. Akins identified himself as "Michael Mayfield." This inconsistency further aroused Bernal's suspicions. He returned to his car and radioed for a back-up. Within five minutes, Officer Jim McDaniels arrived. Cummins stayed with McDaniels while Bernal returned to the Volkswagen to ask [**4] Akins for proof of identification. The name on the driver's license he produced was "Timothy Akins." Bernal escorted Akins to the patrol unit and placed him in the back seat. Akins was evasive and appeared ready to flee if given the opportunity.

 Bernal returned to the Volkswagen and looked inside with his flashlight. He saw a clear plastic bag containing what appeared to be marijuana on the floor behind the passenger's seat. As a result of this discovery, Bernal placed Cummins and Akins under arrest and called for a tow truck to remove the Volkswagen. Pursuant to police department procedures, Bernal began an inventory search of the Volkswagen in preparation for its impoundment. Inside the passenger compartment, Bernal found two beepers, a black shaving kit containing U.S. currency, a duffel bag containing marijuana and cocaine, a "Crown Royal" bag containing more drugs, and a loaded "Tech 9" semi-automatic pistol.

 The second traffic incident involved only Akins. On January 26, 1989, Officers James Dickson and John Gourtney of the Little Rock Police Department were called to the scene of a single-car accident. A Chevrolet Chevette had crashed into the front-yard fence of a residence. [**5] Although no one was in the car when

the officers arrived, witnesses identified Akins, who was standing nearby, as the driver. When the officers tried to question Akins, they realized that he was either too drunk or too drugged to provide any coherent answers. The officers arrested Akins for driving while influenced by alcohol or drugs. After calling for a tow truck to remove Akins' car, the officers began an inventory search of the vehicle. In the passenger compartment, they found a loaded sawed-off shotgun, marijuana, and a sack containing crack, cocaine, and U.S. currency.

 Cummins and Akins moved to suppress the evidence seized by the Little Rock police officers during the two separate traffic incidents. At the suppression hearing, Officer Bernal testified that he probably would not have stopped the green Volkswagen on November 10, 1988 for the traffic violation if the defendants had not behaved so suspiciously. Pointing to the officer's underlying motivation, the defendants argued that the initial stop was pretextual and any evidence seized in its wake should be suppressed. The magistrate 2 disagreed, finding that Bernal had a reasonable and objective basis for making the initial [*"6] stop and that the resulting searches were proper. The magistrate also concluded that the motion to suppress evidence seized during the inventory search of Akins' car on January 26, 1989 should be denied. The district court adopted the magistrate's recommendations and denied the motions to suppress. For reversal, defendants reassert the arguments made during the proceedings below.

 II.

 A.

 Defendants argue that Officer Bernal's initial stop of the green Volkswagen was pretextual, because his real reason for making the stop was based on his suspicions aroused by their strange behavior rather than on Cummins' failure to signal a right turn. The defendants conclude that the stop was unreasonable under the Fourth Amendment. We disagree. HN1 When an officer observes a traffic offense -- however minor -- he has probable cause to stop the driver of the vehicle. See ef!nrJ§Yi'!flnifJ_LMJrnm§,_4.3..1_ V,_ $,__ 1.Q§,_§1_1,,_E;_r;J, _ ?,cj 331. 98 S. Ct. 330 (1977! ; United States v. Pillow , r•11 84 f:2gJQ.Q.U tb_Q)L1 BJD. In [*501] our view, this otherwise valid stop does not become unreasonable merely because the officer has intuitive suspicions that the occupants of the car are engaged in some sort of

 2 The Honorable H. David Young , United States Magistrate , for the Eastern District of Arkansas .

 

 

 920 F.2d 498, *501; 1990 U.S. App. LEXIS 20838, **7

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 criminal activity. It is also our view that the stop remains valid even if the officer would have ignored the traffic violation but for his other suspicions. Although the Supreme Court has not directly decided this issue, the Court has told us in unmistakable terms that we are to make "an objective assessment of the officer's actions." Scott v. United States. 43$ U.S. 128. 136. 56 LEd. 2d 1§11. 98 S. Ct. 1717 (1978}. HN2 "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." l!:L§U)Jl. The Court's language leaves little doubt that "the officer's actual state of mind at the time the challenged action was taken," Marv/and v. Macon. 472 US. 463, 470-71, 86 L. Ed. 2d 370. 105 S. Ct. 2778 (1985), is of no significance in determining whether a violation of the Fourth Amendment has occurred. 3

 [**8] Although our circuit has declared in dictum "that

pretextual stops are unreasonable under the fourth amendment," IJnite_(f_{ijate LY, EQFfWQ9(f, _f}f5t _E g 1221, 1223 (8111 Cir. 1988), cert. denied, 490 U.S. 1069. 109 S. Ct. 2073. 104 L. Ed. 2d 638 (1989), when we apply Scott, noting the "standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved," 4-?6J lS,..£'1L13.V. we cannot say that the stop here in question was pretextual. Officer Bernal had a legitimate reason --the traffic violation -- for stopping the green Volkswagen and that is the end of our inquiry.

 We reject the argument of Cummins and Akins that the applicable test 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." United States v. Smith, 799 F.2d 704. 709 (111/l Cir. 1986) (emphasis in original). Only the Tenth and the Eleventh Circuits have adopted this test, 4 and we expressly

decline to join them. Instead, we align ourselves with those circuits that approach the pretextual stop or arrest question under the standard of objective reasonableness [**9] articulated by the Supreme Court. United Stales v. Trigg, 878 F.2d 1037 (7t/J Cir. 19891; United States v. Causev, 834 F.2d 1179 (5tll Cir. 1987),; United Slates 11. Hawkins. 811 F.2d 210· (3rd Cir. 19871.• cert. denied, 484 U.S. 833, 98 L. Ed. 2d 69. 108 S. Ct. 110. We thus agree with the conclusion expressed by the Seventh Circuit: HN3 "so long as the police are doing no more than they are legally permitted and objectively authorized to so, [the resulting stop or] arrest is constitutional." Jljgf/...J1 Z§f.Zq at_1_Q!11 (relying upon Cause v, 834 F.2d a/ 1184 ("The Court has told us that where police officers are objectively doing what they are legally authorized to do . . . the results of their investigations are not to be called in question on the basis of any subjective intent with which they acted.")). Like these other circuits, we see no reason for requiring an officer's state of mind to perfectly match his legitimate actions. Such symmetry is not required by the Constitution. Accordingly, we hold that because Officer Bernal had probable cause to believe that a traffic violation had occurred, his initial stop of the car driven by Cummins was valid.

 [**10] B.

 Our determination that a valid stop occurred does not end our inquiry, because [*502] Cummins and Akins argue that the fruits of the search were fruits of an unreasonable detention. We disagree. Under Terrv_'L QJ7iq, :?9Z_v,;;,·'-L2Q t,., EcL29 §fJQ, §§ s, .GL 1?9.$ (196/.ll , HN4 given the lawfulness of th initial stop, the question is whether the resulting detention was "reasonably related in scope to the circumstances which justified the interference in the first place." 392 _l,l,_S_ _c;;t 2Q. Here, after stopping the green Volkswagen for the observed traffic violation, Officer Bernal asked Cummins why he failed to use his turn signal. This question was reasonably related to the purpose ofthe stop. Cummins

 3 The officer's motive becomes relevant only after a determination is made that the Fourth Amendment actually was violated. When this threshold issue is resolved in the affirmative, the officer's state of mind may be relevant in determining whether the exclusionary rule should be applied.

 

Scot/, 436 U.S. a t 139 !'1,13. See, United States v, Leon. 46§_l,L$._§_f)Z, §_£_L. Ed. 2d 677. 104 S. Cl. 3405 (1984) (exclusionary rule inapplicable where officer's good faith belief that defective warrant was valid was an objectively reasonable belief).

     

4 United States v. Guzman. 864 F. 2d 1512 (1oth Cir. 1988); Smith, 799 F.2d 704 (11th Clr. 1986}.

 

 920 F.2d 498, *502; 1990 U.S. App. LEXIS 20838, **10

Page 5 of 5

 answered that he had been distracted by his passenger's conversation . When Bernal attempted to confirm this explanation by questioning the passenger, he received an inconsistent answer. At this point, Bernal had justification for a greater intrusion unrelated to the traffic offense. The circumstances and unusual behavior he had encountered led him "reasonably to conclude in light of his experience that criminal activity may [have been] afoot." 392._U.S._ at 30. The officer had observed and could articulate (1) the defendants' peculiar [**11) behavior at the traffic light; (2) their attempts to evade his surveillance by pulling into the closed car wash; (3) their continuous furtive glances in his direction; (4) the nervous and evasive behavior of each defendant when asked routine questions ; and (5) the inconsistent answers concerning Akins' identity. The totality of the circumstances known to Officer Bernal met the requisite level of reasonable suspicion under Terry and entitled him to detain the defendants until he had satisfied his suspicions.

 C. Cummins and Akins also argue that Officer Bernal's discovery of the marijuana on the rear floor of the car was invalid under the plain-view doctrine. There is no reason for us to address this particular argument because Bernal's actions were justified by the limited protective search doctrine. In Michigan v. Long. 46 3 U.S. 1032. 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983l, the Court extended the Terry frisk of a person to a limited search of an automobile's interior. Similar to the facts here, the officers in Long discovered marijuana in the passenger compartment with the aid of a flashlight after stopping the driver for a traffic violation. Recognizing that HN5 "investigative detentions involving suspects [**12) in vehicles are especially fraught with danger to police officers," :l_Q_:L!,L. $., 9_t 104_!.. the Court held that once reasonable suspicion is established, a limited search of an automobile's interior is permissible. This limited search is no less permissible where, as here, the occupants have been removed from the automobile before the search is made. See 463 U.S. al 1052 ("the suspect may be permitted to reenter the vehicle before the Terry investigation is over, and again, may have access to weapons"). Officer Bernal's action of looking into the passenger compartment of the Volkswagen with a flashlight did not

exceed the limitations of a Terry search. As we apply an objective standard of reasonableness to this determination, our conclusion is not changed by Bernal's testimony that he had no subjective fear that either Cummins or Akins were armed. We therefore hold that the marijuana discovered by Officer Bernal in the passenger compartment of the Volkswagen was not subject to suppression under the exclusionary rule.

 D.

 Defendants' next argument that the search of the remainder of the car was without probable cause requires little discussion. Upon discovering the marijuana, [**13) Officer Bernal had probable cause to place defendants Cummins and Akins under arrest. The search of the Volkswagen which followed was permissible both as a search incident to arrest, United Slates v. Robinson. 414 U.S. 218. 38 L. Ed. 2d 427. 94 . Ct. 467 (1973), and as an inventory search, Colorado v. Bertine , 479 U.S. 367, 93 L. Ed. 2d 73IL_ 107 S. Ct. 738 (1987). Because no Fourth Amendment violation occurred, the motion to suppress the evidence found during the search was properly denied.

 [*503] Ill.

 Akins challenges the seizure of evidence in connection with his January 26, 1989 arrest. He claims that the inventory search of his car in which the officers discovered controlled substances and a.loaded shotgun was invalid. He does not dispute the validity of his arrest for OWl.

 HN6 An inventory search will be upheld unless there is a showing that the police failed to follow standard procedures, acted in bad faith, or conducted the search for the sole purpose of investigation. See Bertine, 4_79 U.S. at 372. Akins has made no such showing . We therefore [**14] reject his challenge to the District Court's denial of his motion to suppress .  

IV.  

Finding no reason for reversal, we affirm the decision of the District Court denying defendants' motions to suppress.