United States of America v. Terry Lamont Herbin

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0328P (6th Cir.)
File Name: 03a0328p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
TERRY LAMONT HERBIN,
Defendant-Appellee.
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No. 02-5143
Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 01-00071—Thomas G. Hull, District Judge.
Submitted: August 1, 2003
Decided and Filed: September 15, 2003
Before: DAUGHTREY, MOORE, and SUTTON, Circuit
Judges.
_________________
COUNSEL
ON BRIEF: Dan R. Smith, ASSISTANT UNITED STATES
ATTORNEY, Johnson City, Tennessee, for Appellant.
William L. Ricker, RICKER LAW OFFICE, Greeneville,
Tennessee, for Appellee.
2 United States v. Herbin No. 02-5143
_________________
OPINION
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SUTTON, Circuit Judge. A federal grand jury indicted
Terry Lamont Herbin for violating 18 U.S.C. § 922(g), which
prohibits convicted felons from possessing firearms, after the
police seized a .38 caliber handgun from the car in which
Herbin was a passenger. Herbin moved to suppress the
firearm, arguing that narcotics officers violated the Fourth
Amendment when they used traffic violations as a pretext to
stop the car. The District Court granted the motion and
suppressed the weapon. We REVERSE.
I.
On July 3, 2001, several narcotics agents, driving unmarked
cars, tailed two vehicles in Johnson City, Tennessee. The
first car was driven by Lisa Thompson, and included Herbin
in the passenger seat. The second car was driven by Herbin’s
brother. In tailing the vehicles, the agents admitted that their
primary mission was to pursue a drug-trafficking
investigation, not to enforce the traffic laws. The agents
acknowledged that they had information that Terry Herbin
was in the area for the purpose of distributing narcotics.
The two drivers – Ms. Thompson and Herbin’s brother –
soon gave the agents another explanation for stopping the
cars. The agents observed both cars run a red light and, later,
saw Thompson’s car cross the center line twice. When the
two cars eventually pulled into a parking lot, the agents
activated their lights and initiated a traffic stop.
As the agents approached the cars, Herbin’s brother exited
the second car as if to flee. The agents drew their weapons
and ordered him to stop. One of the agents then reached into
Lisa Thompson’s car through the window and removed the
key from the ignition. The officers asked Ms. Thompson and

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No. 02-5143 United States v. Herbin 3
Terry Herbin to exit the car in which they were riding and to
remain at the scene.
Although Agent Thompson testified that he stopped the
vehicles to issue a citation and to determine whether Ms.
Thompson was intoxicated (because she had crossed the
center line), the agents never pursued the traffic violations.
They did not ask for drivers’ licenses,“run the tags” on the
vehicles, perform any field sobriety tests, or issue any tickets.
What they did do once they had obtained order over the area
was to ask Ms. Thompson for permission to search her car for
contraband. Ms. Thompson consented, and the search
revealed a loaded .38 caliber handgun beneath the passenger
seat in which Herbin had been sitting.
Presumably on the basis of this evidence, a grand jury
indicted Herbin for violating 18 U.S.C. § 922(g), which
prohibits convicted felons from possessing firearms. Herbin
moved to suppress the weapon. A magistrate judge
recommended denying the motion because (1) the stop was
supported by probable cause that traffic violations had
occurred and (2) the driver had consented to the subsequent
search of her vehicle.
The District Court disagreed. In its view, “the initial traffic
stop in this case was a pretext, [ ] the subsequent detention of
the defendant and the officers’ actions were not related to the
circumstances justifying the initial stop, and [ ] the search
incident to that stop was in violation of the defendant’s Fourth
Amendment rights.” The Government appealed.
II.
We review the District Court’s legal conclusions de novo,
United States v. Bailey, 302 F.3d 652, 656 (6th Cir. 2002),
and, finding them erroneous, need not question its factual
findings.
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This case does not mark a new path. In Whren v. United
States, 517 U.S. 806, 812–13 (1996), the Supreme Court held
that the legality of a traffic stop turns on the validity of the
officers’ objective explanation for making the stop, not on the
subjective intentions of the officers in initiating the stop. A
traffic stop supported by probable cause, Whren makes clear,
may not be invalidated under the Fourth (and Fourteenth)
Amendment on the ground that the officers stopped the car
for “pretextual” reasons – which is to say, acted upon a
violation of one set of laws (e.g., run-of-the-mill traffic laws)
in order subjectively to enforce another set of laws (e.g., drug-
trafficking laws). In the words of Whren: “Subjective
intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.” Id. at 813. See also Arkansas v.
Sullivan, 532 U.S. 769, 771–72 (2001) (per curiam) (holding
that a custodial arrest for a traffic violation and search
incident to arrest do not violate the Fourth Amendment just
because the officer had an improper subjective motivation for
making the stop).
Both before and after Whren, this Court has adhered to this
principle. In United States v. Bailey, 302 F.3d 652 (6th Cir.
2002), in rejecting a similar argument, the Court held that two
officers had lawfully stopped a motorist whom they had
witnessed driving down the wrong side of the road. That the
officers were allegedly “making traffic stops” as a “pretext”
to investigate complaints of drug activity was “irrelevant,” we
emphasized, because the officers “had probable cause to stop
[the motorist] for a traffic violation.” Id. at 656–57. Nor did
we stray from this path in United States v. Burton, 334 F.3d
514 (6th Cir. 2003), in holding that the Fourth Amendment
permitted a police officer to stop a car that he observed
parked in a no-parking area, regardless of the officer’s
subjective motivation for the stop. Id. at 516–17. See also
United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999) (“an
officer may stop a vehicle for a traffic violation when his true
motivation is to search for contraband, as long as the officer
had probable cause to initially stop the vehicle”); United
States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) (en banc).

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No. 02-5143 United States v. Herbin 5
Measured by these precedents, the District Court’s decision
cannot stand. Under Whren and this Court’s cases, the
District Court’s finding that the initial traffic stop was “a
pretext” is legally beside the point. No one disputes that the
agents had probable cause to stop Ms. Thompson’s car when
it ran a red light and twice crossed the center line.
Accordingly, the agents had an objectively justifiable basis
for stopping the car.
Nor do the officers’ subjective intentions become relevant
in assessing the agents’ conduct after the initial stop. Herbin
contends that the agents ran afoul of the Fourth Amendment
when, without any intention of pursuing the traffic violations,
the agents drew their guns on the vehicle occupants, seized
the key to Lisa Thompson’s car, and requested her consent to
search it. The Supreme Court’s decision in Ohio v. Robinette,
519 U.S. 33 (1996), however, forecloses this argument. It
makes clear that continuing to detain a motorist does not
become unlawful just because the officer has determined in
his own mind not to pursue the traffic violation. Id. at 38.
From beginning to end, the constitutionality of a traffic stop
under the Fourth Amendment depends on the objectively
reasonable justifications for the officers’ actions, not their
subjective intentions.
Here, the circumstances of the stop and detention were
within legal limits. Before the agents even had an
opportunity to pursue the traffic violations, Herbin’s brother
exited the second car as if to flee. Already suspecting Terry
Herbin of criminal activity, the agents responded with
appropriate caution: They did not ask for drivers’ licenses,
run the tags, attempt to perform a field sobriety test, or issue
a ticket. They instead drew their weapons, seized the
occupants, and removed the key from the ignition of Ms.
Thompson’s car. The agents already had authority to seize,
at least temporarily, the vehicles and their occupants based on
probable cause to believe traffic laws had been violated. See
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (the
Fourth Amendment does not prohibit an officer from making
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a custodial arrest for a misdemeanor traffic violation even
though it is not an arrestable offense under state law);
Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (“once
a motor vehicle has been lawfully detained for a traffic
violation, the police officers may order the driver to get out of
the vehicle without violating the Fourth Amendment’s
proscription of unreasonable searches and seizures”). On this
record, we find no illegality in the officers’ actions,
particularly in light of the sudden movements of Herbin’s
brother and the violations of the traffic laws that had already
occurred.
Lastly, once the scene was under control, there was nothing
unreasonable about asking Ms. Thompson for permission to
search her car. See Robinette, 519 U.S. at 39-40 (holding that
an officer need not advise a detained motorist that he or she
is free to go before asking whether the motorist would
consent to a search for contraband); United State v. Erwin,
155 F.3d 818, 822–23 (6th Cir. 1998) (en banc) (“irrespective
of whether the deputies were justified in detaining [the
motorist] after he showed no signs of intoxication, and even
if they had not, after approaching [him], observed conditions
raising a reasonable and articulable suspicion that criminal
activity was ‘afoot,’ they were entitled to ask [the motorist]
for permission to search his vehicle”). As this Court recently
explained in United States v. Burton, 334 F.3d 514 (6th Cir.
2003), a case involving a similar traffic stop, “‘[q]uestions
that hold potential for detecting crime, yet create little or no
inconvenience, do not turn reasonable detention into
unreasonable detention.’” Id. at 518 (quoting United States v.
Childs, 277 F.3d 947, 954 (7th Cir. 2002) (en banc)). Had
Ms. Thompson declined to answer questions and had there
been no reasonable suspicion to detain her and the Herbin
brothers for something other than traffic violations, the agents
would have been required to “pursue” the traffic violations or
let the vehicles and occupants go. Instead, she voluntarily
consented, a fact that Terry Herbin does not dispute.

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No. 02-5143 United States v. Herbin 7
Because we conclude that the seizure was the product of a
lawful traffic stop, followed by the driver’s voluntary consent
to a search, we do not address the Government’s alternative
argument that Herbin lacked standing to move to suppress the
weapon discovered in the car.
III.
For the foregoing reasons, we REVERSE the judgment of
the District Court granting Herbin’s motion to suppress, and
we REMAND for further proceedings consistent with this
opinion.

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